[Cite as CitiMortgage, Inc. v. Kinney, 2014-Ohio-1725.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100099

CITIMORTGAGE, INC.

PLAINTIFF-APPELLEE 

vs. 

JEROME KINNEY, ET AL. 

DEFENDANTS-APPELLANTS 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

 Cuyahoga County Court of Common Pleas 

Case No. CV-11-759397 

BEFORE: Boyle, A.J., Kilbane, J., and McCormack, J. 

 

RELEASED AND JOURNALIZED: April 24, 2014 
ATTORNEY FOR APPELLANT

Michael Aten 

20525 Center Ridge Road 

Westgate Towers, Suite 501 

Rocky River, Ohio 44116 

ATTORNEYS FOR APPELLEE

For CitiMortgage, Inc. 

Kara A. Czanik 

Gradon Head & Ritchey, L.L.P. 

1900 Fifth Third Center 

511 Walnut Street 

Cincinnati, Ohio 45201 

Joshua J. Epling 

7550 Paragon Road 

Dayton, Ohio 45459 

For state of Ohio, Department of Taxation 

Mike DeWine 

Ohio Attorney General 

Donn D. Rosenblum 

Assistant Attorney General 

Collections Enforcement Section 

150 East Gay Street, 21st Floor 

Columbus, Ohio 43215
MARY J. BOYLE, A.J.: 

{¶1} Defendants-appellants, Jerome and Verna Kinney, appeal from the trial 

court’s decision granting summary judgment to plaintiff-appellee, CitiMortgage, Inc., on 

its foreclosure complaint. They raise two assignments of error for our review: 

1. The trial court erred in granting summary judgment in favor of 

plaintiff-appellee. 

2. The trial court erred in holding that defendant[s]-appellants’ 

objection to the magistrate’s decision was untimely. 

{¶2} Finding no merit to their appeal, we affirm. 

Procedural History and Factual Background

{¶3} In February 2008, the Kinneys purchased a home in Cleveland, Ohio, 

originally borrowing $166,095 from Howard Hanna Mortgage Services. The mortgage 

was recorded on February 19, 2008. On December 15, 2009, Howard Hanna assigned 

the note and mortgage to CitiMortgage. The assignment was recorded on December 

21, 2009. 

{¶4} CitiMortgage filed a complaint in foreclosure against the Kinneys in July 

2011, alleging that it was the holder of a note and mortgage on the Kinneys’ property. 

It further alleged that the note was in default and that the Kinneys owed $161,897.72 

on the note, plus interest, costs, late charges, and advances for taxes, insurance, and other 

charges as set forth in the note, deed, and existing law. CitiMortgage sought, inter alia, 

judgment on the note and foreclosure on the property. 
{¶5} In August 2011, the trial court stayed the case and referred the parties to 

mediation. After mediation failed, the case was referred back to the trial court in March 

2012. Subsequently, the Kinneys answered the complaint and brought counterclaims 

against CitiMortgage. 

{¶6} In January 2013, CitiMortgage moved for summary judgment. The 

Kinneys moved for partial summary judgment. On April 12, 2013, the trial court 

granted summary judgment to CitiMortgage on all of its claims and on the Kinneys’ 

counterclaims. The trial court denied the Kinneys’ partial summary judgment motion. 

{¶7} The magistrate issued his decision on May 15, 2013, granting a decree of 

foreclosure to CitiMortgage. In his decision, the magistrate noted that the judge had 

previously found in favor of CitiMortgage on the parties’ competing summary judgment 

motions. The magistrate then found that the Kinneys owed CitiMortgage $161,897.72 

with interest at a rate of 6.25 percent per annum from April 1, 2010. 

{¶8} On May 20, 2013, the Kinneys requested findings of fact and conclusions 

of law “as to their affirmative defenses and counterclaims.” On June 11, 2013, the trial 

court denied the Kinneys’ request for findings of fact and conclusions of law, adopted 

the magistrate’s decision, and entered a decree of foreclosure to CitiMortgage. 

{¶9} On June 13, 2013, the Kinneys moved for reconsideration of the trial 

court’s decision denying its request for findings of fact and conclusions of law. On 

June 20, 2013, the Kinneys filed objections to the magistrate’s decision. The trial court 

denied both on July 11, 2013. 
{¶10} On July 11, 2013, the Kinneys filed their notice of appeal, challenging the 

June 11, 2013 judgment of the trial court adopting the magistrate’s decision. We will 

address the Kinneys’ assignments of error out of order for ease of discussion. 

Objections to a Magistrate’s Decision

{¶11} In their second assignment of error, the Kinneys argue that the trial court 

erred when it ruled that their objections to the magistrate’s decision were untimely filed. 

 They contend that because they requested findings of fact and conclusions of law 

within the time frame set forth in Civ.R. 53(D)(3)(a)(ii), that their time to object to the 

magistrate’s decision was tolled. 

{¶12} Civ.R. 53(D)(3)(a)(ii) provides: 

[A] magistrate’s decision may be general unless findings of fact and 

conclusions of law are timely requested by a party or otherwise required by 

law. A request for findings of fact and conclusions of law shall be made 

before the entry of a magistrate’s decision or within seven days after the 

filing of a magistrate’s decision. 

{¶13} Civ.R. 53(D)(3)(b)(i) provides that 

A party may file written objections to a magistrate’s decision within 

fourteen days of the filing of the decision[.] * * * If a party makes a 

timely request for findings of fact and conclusions of law, the time for 

filing objections begins to run when the magistrate files a decision that 

includes findings of fact and conclusions of law. 

{¶14} The trial court denied the Kinneys’ request for findings of fact and 

conclusions of law because it found that the magistrate’s decision already contained 

findings and conclusions on all matters. The trial court relied on Morgan Stanley 

Credit Corp. v. Fillinger, 8th Dist. Cuyahoga No. 98197, 2012-Ohio-4295, in support of 
its judgment, finding the magistrate’s decision in the Kinneys’ case to be nearly identical 

to the one in Fillinger. 

{¶15} We have reviewed Fillinger and agree with the trial court that it is directly 

on point with the present case. In Fillinger, a magistrate issued a decision on January 

11, 2012. Fillinger requested findings of fact and conclusions of law the following day, 

which was denied by the trial court on January 18, 2012. Fillinger filed a renewed 

motion for findings of fact and conclusions of law on March 1, which was denied by the 

trial court on March 12, 2012. Fillinger then filed objections to the magistrate’s 

January 11 decision on March 21, 2012. This court agreed with the bank that Fillinger 

all but waived plain error. Id. at ¶ 17. We reviewed the magistrate’s decision and 

found that it had thoroughly examined and addressed each element of the complaint, 

cross-complaint, and third-party complaint in the case. We further explained: 

[T]he magistrate reviewed Morgan Stanley and MERS’ motion for 

summary judgment on Fillinger’s claims of fraud and their claim for 

bankruptcy as well as Fillinger’s cross motion for summary judgment. 

The magistrate determined that no genuine issue as to any material fact 

existed and that reasonable minds could come to but one conclusion and 

that conclusion was adverse to Fillinger. The magistrate then noted that 

the trial court granted Morgan Stanley and MERS’ motion for summary 

judgment on their complaint in foreclosure and on Fillinger’s claim of 

fraud while denying Fillinger’s motion for summary judgment. 

Id. at ¶ 16. 

{¶16} We concluded in Fillinger that because the magistrate’s decision contained 

the requisite findings of fact and conclusions of law with regards to all claims raised by 

Fillinger, that the proper remedy would have been to file timely objections to the 
magistrate’s decision, not request findings of fact and conclusions of law. Id. at ¶ 17. 

 We therefore found that Fillinger waived all but plain error, which we declined to find. 

Id.

{¶17} Here, just as in Fillinger, it was the trial judge who granted CitiMortgage’s 

summary judgment motion on its claims and the Kinneys’ counterclaims and denied the 

Kinneys’ partial summary judgment motion. The Kinneys requested findings of fact 

and conclusions of law from the magistrate on their affirmative defenses and 

counterclaims. But it was the trial judge who decided those matters when it ruled on 

the competing summary judgment motions. The trial court is not required to give 

findings of fact and conclusions of law when it decides a summary judgment motion. 

The magistrate noted in his decision that the trial court previously ruled on all matters 

when it decided the parties’ summary judgment motions. We agree with the trial court 

that “[t]he magistrate cannot make findings and facts and conclusions of law on a 

judge’s ruling other than to find that the judge previously ruled.” 

{¶18} Accordingly, we agree with the trial court that Fillinger is directly on point 

with the present case, i.e., the Kinneys’ request for findings of fact and conclusions of 

law did not toll their time to file objections to the magistrate’s decision. And because 

the Kinneys did not file their objections to the magistrate’s decision until well past the 

14-day requirement, their objections were untimely filed. 

{¶19} The Kinneys’ second assignment of error is overruled. 

Summary Judgment
{¶20} In their first assignment of error, the Kinneys argue that the trial court erred 

when it granted summary judgment to CitiMortgage on their affirmative defense that 

CitiMortgage failed to follow mandatory, pre-foreclosure loss mitigation procedures 

required by the Department of Veterans Affairs (“VA”). CitiMortgage argues that we 

should only review this assignment of error for plain error because the Kinneys did not 

file timely objections to the magistrate’s decision. Civ.R. 53(D)(3)(b)(iv) provides: 

Except for a claim of plain error, a party shall not assign as error on appeal 

the court’s adoption of any factual finding or legal conclusion, whether or 

not specifically designated as a finding of fact or conclusion of law under 

Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or 

conclusion as required by Civ.R. 53(D)(3)(b). 

{¶21} We disagree with CitiMortgage regarding our standard of review. The 

Kinneys could not object to the magistrate’s findings or conclusions on the summary 

judgment motions, because there were none. It was the trial judge who decided the 

summary judgment motions. Thus, we will review the Kinneys’ first assignment of 

error using our normal standard of review for summary judgment motions. 

{¶22} An appellate court reviews a decision granting summary judgment on a de 

novo basis. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 

(1996). Summary judgment is properly granted when (1) there is no genuine issue as to 

any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) 

reasonable minds can come to but one conclusion, and that conclusion is adverse to the 

party against whom the motion for summary judgment is made. Civ.R. 56(C); State ex 
rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d 654 

(1996). 

{¶23} The Kinneys argue that under VA Circular 26-10-6, CitiMortgage was 

required to evaluate their financial circumstances to determine if they were eligible for a 

loan modification pursuant to the Home Affordable Modification Program (“HAMP”) 

before CitiMortgage instituted the foreclosure action against them. The Kinneys 

maintain that CitiMortgage did not do so until well after it had commenced the 

foreclosure action against them. 

{¶24} VA Circular 26-10-6 provides “authority and revised instructions for 

modifying VA-guaranteed home loans in accordance with the President’s Making Home 

Affordable (MHA) program.” The intent of the instructions “is to ensure that veteran 

borrowers receive the opportunity to be considered for affordable loan modifications 

when other home retention loss mitigation options are not feasible.” 

{¶25} VA Circular 26-10-6 explains the “background” of its publication as: 

VA has a longstanding policy of encouraging servicers to work with 

veteran borrowers to explore all reasonable options to help them retain 

their homes, or when that is not feasible, to mitigate losses by pursuing 

alternatives to foreclosure. In an effort to help homeowners avoid 

foreclosure, the President announced the MHA program to make home 

loans more affordable. Two main features of this program are the Home 

Affordable Refinance Program (HARP) and the Home Affordable 

Modification Program (HAMP). HARP was introduced to help borrowers 

refinance at lower interest rates despite high loan-to-value (LTV) ratios, 

and provides relief similar to VA’s existing Interest Rate Reduction 

Refinancing Loan (IRRRL) program. HAMP was introduced to avoid 

foreclosures by modifying loans to increase affordability relative to 

borrower income. Under HAMP, an affordable modification is defined as 

a new monthly mortgage payment (including principal, interest, property 
taxes, insurance, and condominium or homeowners’ association fees 

(PITIA)) that is no greater than 31 percent of the borrower’s monthly gross 

income. This circular explains how VA loan modifications conform to 

the MHA program. 

{¶26} Under “Guidance to Servicers,” VA Circular 26-10-6 provides that the 

“VA expects servicers to exert all reasonable efforts to assist veteran borrowers in 

retaining ownership of their homes or mitigating losses when retention is not possible.” 

It instructs that “servicers must first evaluate defaulted mortgages for traditional loss 

mitigation actions cited in Title 38, Code of Federal Regulations, section 36.4819 (38 

CFR 36.4819); i.e., repayment plans, special forbearances, and traditional loan 

modifications.” It then provides that “[i]f none of the traditional home retention loss 

mitigation options provide an affordable payment, the servicer must evaluate the loan for 

a HAMP-style modification prior to deciding that the default is insoluble and exploring 

alternatives to foreclosure.” 

{¶27} The Kinneys assert that VA circulars have the “force and effect” of law 

where they prescribe “substantive” rules, citing to Rank v. Nimmo, 677 F.2d 692 (9th 

Cir.1982). In Rank, the court held that 

[i]n order for the Lenders Handbook and the VA circulars to have the 

“force and effect of law,” they must (1) prescribe substantive rules — not 

interpretive rules, general statements of policy or rules of agency 

organization, procedure or practice — and, (2) conform to certain 

procedural requirements. 

Id. at 698 (determined that the handbook and circulars at issue did not prescribe 

substantive rules). The Kinneys maintain that VA Circular 26-10-6 is substantive. 

Thus, they contend that they had an affirmative defense to foreclosure because 
CitiMortgage did not follow the mandatory mitigation procedures set forth in VA 

Circular 26-10-6. They therefore claim that they were entitled to summary judgment. 

{¶28} We disagree with the Kinneys that VA Circular 26-10-6 provides 

substantive rules. The circular explains that its purpose is to provide instructions for 

modifying VA-guaranteed loans. It further states that it “explains how VA loan 

modifications conform to the MHA program.” (Emphasis added.) And the portion of 

VA Circular 26-10-6 quoted by the Kinneys, where they assert that it mandates a 

substantive rule (that servicers “must evaluate the loan for a HAMP-style modification 

before deciding that the default is insoluble and exploring alternatives to foreclosure”), is 

contained within a section of VA Circular 26-10-6 entitled “Guidance to Servicers.” 

(Emphasis added.) Thus, the VA Circular 26-10-6 provides interpretive rules and 

general statements of the VA’s procedures and policies, not substantive rules. 

{¶29} Even if we were to agree with the Kinneys that VA Circular 26-10-6 

provides substantive rules, their argument that the trial court erred when it granted 

summary judgment to CitiMortgage still lacks merit. CitiMortgage put forth evidence 

in their summary judgment motion establishing that they did engage with the Kinneys to 

determine their financial situation prior to filing the foreclosure action. CitiMortgage 

attached several documents to its summary judgment motion, all verified by affidavit, 

including correspondences sent to the Kinneys requesting information on their current 

financials. CitiMortgage filed the foreclosure action in July 2011. CitiMortgage first 

sent a letter to the Kinneys on December 15, 2010, informing them that they may be 
eligible for certain loss-mitigation programs, including a loan modification, but that they 

first had to provide their current financial information to CitiMortgage within ten days of 

the letter. The Kinneys did not do so until June 2011. 

{¶30} Moreover, in May 2011, CitiMortgage sent a letter to the Kinneys 

requesting that they attend a meeting with CitiMortgage and Neighborhood Housing 

Services of Greater Cleveland to review homeowner assistance options. Further, Jerome 

Kinney admitted in his deposition that he spoke with CitiMortgage personnel “maybe 

one or two” times regarding his mortgage and financial situation prior to CitiMortgage 

filing the foreclosure action. He later said he spoke to someone “two or three times” 

about his financial condition and possible loan modifications. 

{¶31} The Kinneys also argue that under the doctrine of unclean hands, they were 

entitled to summary judgment. They maintain that CitiMortgage did not deal in good 

faith with them. But based upon our previous discussion, it is clear that CitiMortgage 

attempted to engage the Kinneys in good faith numerous times regarding their loan and 

financial situation. 

{¶32} Accordingly, the trial court did not err when it granted summary judgment 

to CitiMortgage. 

{¶33} Judgment affirmed. 

It is ordered that appellee recover from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate be sent to said court to carry this judgment 

into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MARY J. BOYLE, ADMINISTRATIVE JUDGE 

MARY EILEEN KILBANE, J., and 

TIM McCORMACK, J., CONCUR