[Cite as U.S. Bank, N.A. v. Detweiler, 2012-Ohio-73.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

U.S. BANK, N.A. 

 Plaintiff-Appellee 

-vsBENJAMIN R. DETWEILER, ET AL. 

 Defendants-Appellants 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. John W. Wise, J. 

Hon. Julie A. Edwards, J. 

Case No. 2011CA00095 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Case No. 2009 CV 04084 

JUDGMENT: Reversed and Final Judgment Entered 

DATE OF JUDGMENT ENTRY: January 9, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

KIMBERLEE S. ROHR PAUL E. ZINDLE 

Lerner, Sampson & Rothfuss ANAHID THOMPSON 

120 East Fourth Street, 12th Floor Community Legal Aid Services, Inc. 

Cincinnati, Ohio 45202 50 South Main St., Suite 800 

 Akron, Ohio 44308 
Stark County, Case No. 2011CA00095 2

Hoffman, P.J. 

 

(¶1) Defendants-appellants Benjamin R. and Mary Detweiler appeal the March 

24, 2011 Judgment Entry of the Stark County Court of Common Pleas granting 

summary judgment in favor of Plaintiff-appellee U.S. Bank, N.A., in this foreclosure 

action. 

STATEMENT OF THE FACTS AND CASE 

(¶2) On October 22, 1998, Benjamin R. and Mary Detweiler (“Appellants”) 

executed a note in the amount of $78,100 to Residential Bancorp. On the same day, 

Appellants also granted Residential Bancorp a mortgage in the amount of $78,100 on 

the property located at 14836 Ravenna Ave. N.E., Hartville, Ohio. The mortgage 

identifies the loan as a federally insured loan subject to the regulations of the United 

States Department of Housing and Urban Development (“HUD”). 

(¶3) On October 23, 1998, Residential Bancorp assigned the note and 

mortgage to the Leader Mortgage Company. Appellee U.S. Bank, N.A.’s, complaint 

states it is the successor by merger to the Leader Mortgage Company. 

(¶4) In 2005, Appellants filed a petition for Chapter 7 bankruptcy with the 

United States Bankruptcy Court, Northern District of Ohio. By virtue of the bankruptcy, 

Appellants were immune from collection activity and potentially personal liability on the 

note. 

(¶5) On August 10, 2009, relief from operation of the bankruptcy stay was 

granted to U.S. Bank, N.A., and the Trustee was directed to abandon the property. 

(¶6) On September 11, 2009, U.S. Bank notified Appellants by letter of the 

default on the note and breach of the mortgage securing the note. The letter stated in 
Stark County, Case No. 2011CA00095 3

order to cure the default and breach, Appellants were to pay the required funds within 

30 days of the date of the letter. If funds were not received within 30 days to bring the 

account current, U.S. Bank stated it would accelerate the sums due under the note and 

the terms of the mortgage. 

(¶7) U.S. Bank filed its complaint in foreclosure against Appellants on October 

21, 2009. U.S. Bank stated therein it was the holder of the note, but a copy of the note 

was unavailable at that time. U.S. Bank subsequently filed a notice of filing of the note 

on November 3, 2009. 

(¶8) Appellants filed a pro se answer on December 23, 2009. In their answer, 

Appellants alleged U.S. Bank was not the real party in interest and it lacked standing to 

file the suit. Appellants also argued U.S. Bank failed to satisfy certain conditions 

precedent, including among their arguments compliance with all necessary HUD 

regulations and other conditions precedent, prior to filing its complaint in foreclosure. 

(¶9) U.S. Bank filed a motion for summary judgment on January 29, 2010. 

Appellants filed a motion for summary judgment on March 7, 2011. Via Judgment Entry 

of February 23, 2010, the trial court granted summary judgment in favor of U.S. Bank, 

and denied Appellant’s motion for summary judgment. 

(¶10) Appellants filed a Civ.R. 60(B) motion to vacate the February 23, 2010 

Judgment Entry on March 8, 2010. The trial court stayed the matter when Appellants 

filed a notice of appeal to this Court of the trial court’s February 23, 2010 judgment. 

(¶11) Via Judgment Entry of December 13, 2010, this Court reversed the 

February 23, 2010 Judgment Entry of the trial court and remanded the matter holding, 
Stark County, Case No. 2011CA00095 4

(¶12) “We find that the mortgage loan in this case is federally insured and that 

by the terms in the note and mortgage it is subject to HUD regulations in the case of 

default or acceleration. The HUD regulations, incorporated within the terms of the 

default or acceleration provisions, include those requirements found in Sections 

203.602 and 203.604, Title 24, C.F.R., as stated above. Those requirements, therefore, 

are conditions precedent. 

(¶13) “The next issue is whether appellee sufficiently established under Civ.R. 

56 that it complied with the requisite conditions precedent before initiating the 

foreclosure process against the property. We find that appellee has established only 

partial compliance with the stated HUD regulations through its Civ.R. 56(C) evidence. 

(¶14) “In support of its motion for summary judgment, appellee submitted its 

affidavit, stating, ‘Affiant states that the defendant was served with notice of their default 

and notice of the plaintiff's intent to accelerate by letter, attached hereto as Exhibit ‘D.’ ’ 

The letter, sent to appellant Benjamin R. Detweiler on September 11, 2009, states that it 

serves ‘as notice of the default of the Promissory Note and breach of the mortgage 

securing that Note.’ We find that this letter supports Appellee's claim that it sufficiently 

complied with providing appellants with notice of the delinquency as required by Section 

203.602, Title 24, C.F.R. 

(¶15) “However, appellee must also establish that it sufficiently complied with 

Section 203.604, Title 24, C.F.R. as a condition precedent to foreclosure. See 

Washington Mut. Bank v. Mahaffey, 154 Ohio App.3d 44, 2003-Ohio-4422, 796 N.E.2d 

39 (Second District Court of Appeals found that mortgagee was not entitled to summary 

judgment when it failed to establish that it sufficiently complied with Section 203.604, 
Stark County, Case No. 2011CA00095 5

Title 24, C.F.R.). Reviewing the motion for summary judgment in a light most favorable 

to the nonmoving party, we find that it is clear that appellee made no attempt to 

establish that it complied with the regulation that it have a face-to-face interview with the 

mortgagor, or made a reasonable effort to arrange the interview, before bringing the 

foreclosure action. Further, the September 11, 2009 letter cannot be used to 

demonstrate even minimal compliance with Section 203.604, Title 24, C.F.R., because 

subsection (d) of that rule prescribes a certified letter as the minimum requirement for a 

reasonable effort to arrange a face-to-face meeting. There is no evidence to show that 

the September 11, 2009 letter was sent to appellants by certified mail, and the letter 

does not contain any language purporting to arrange a face-to-face meeting. See 

CitiMortgage, Inc. v. Ferguson, Fairfield App. No. 2006CA00051, 2008-Ohio-556, 2008 

WL 376380 (failure to provide documentary evidence that notice of default and 

acceleration was sent by certified mail as required by the terms of the mortgage 

prevented summary judgment in favor of mortgagee). 

(¶16) “Accordingly, we find that there is a genuine issue of material fact whether 

appellee complied with the conditions precedent prior to initiating the foreclosure 

proceedings. We find that although appellants failed to respond to the summary 

judgment, on this issue summary judgment is not appropriate pursuant to Civ.R. 56(E).”

(¶17) U.S. Bank, N.A. v. Detweiler (2010), 191 Ohio App.3d 464. 

(¶18) On remand to the trial court for further proceedings as to whether U.S. 

Bank, N.A. complied with the conditions precedent necessary for foreclosure, the trial 

court, via Judgment Entry of March 24, 2011, again granted summary judgment in favor 

of U.S. Bank. 
Stark County, Case No. 2011CA00095 6

(¶19) Appellants now appeal, assigning as error: 

(¶20) “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

TO PLAINTIFF U.S. BANK, N.A. WHEN PLAINTIFF PRODUCED NO EVIDENCE 

THAT IT COMPLIED WITH CONDITIONS PRECEDENT PRIOR TO INITIATING THE 

FORECLOSURE PROCEEDINGS. 

(¶21) “II. THE TRIAL COURT ERRED IN FAILING TO GRANT SUMMARY 

JUDGMENT TO DEFENDANTS WHEN THE RULE 56 EVIDENCE ESTABLISHES 

THAT PLAINTIFF U.S. BANK, N.A. FAILED TO HAVE A FACE-TO-FACE MEETING 

WITH THE DETWEILERS OR MAKE A REASONABLE EFFORT TO ARRANGE A 

MEETING.” 

(¶22) Appellants’ assigned errors raise common and interrelated issues; 

therefore, we will address the arguments together. 

I. & II. 

(¶23) It is well established the party seeking summary judgment bears the 

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. 

Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for 

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that 

the nonmoving party cannot prove its case, bears the initial burden of informing the trial 

court of the basis for the motion, and identifying those portions of the record that 

demonstrate the absence of a genuine issue of material fact on the essential element(s) 

of the nonmoving party's claims. The moving party cannot discharge its initial burden 

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no 
Stark County, Case No. 2011CA00095 7

evidence to prove its case. Rather, the moving party must be able to specifically point to 

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the 

nonmoving party has no evidence to support the nonmoving party's claims. If the 

moving party fails to satisfy its initial burden, the motion for summary judgment must be 

denied. However, if the moving party has satisfied its initial burden, the nonmoving party 

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing 

there is a genuine issue for trial and, if the nonmovant does not so respond, summary 

judgment, if appropriate, shall be entered against the nonmoving party.” The record on 

summary judgment must be viewed in the light most favorable to the opposing party. 

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924. 

(¶24) Appellants assert the trial court erred in granting summary judgment in 

favor of U.S. Bank as U.S. Bank failed to produce evidence it complied with conditions 

precedent prior to initiating the within foreclosure proceedings. 

(¶25) Appellants’ loan at issue was a FHA insured loan; thus, subject to the 

requirements of 24 C.F.R. 203.604, including a face-to-face interview as a condition 

precedent to foreclosure. On remand from the first appeal, U.S. Bank argued it did not 

have to satisfy the face-to-face interview requirement of 24 C.F.R. 203.604 as 

Appellants were in bankruptcy. As set forth in the Statement of the Facts and Case 

supra, this Court previously reversed the decision of the trial court and remanded the 

matter for further proceedings to determine whether U.S. Bank complied with certain 

conditions precedent to foreclosure. U.S. Bank, N.A. v. Detweiler, 191 Ohio App.3d 464, 

2010-Ohio-6408. This Court held U.S. Bank must first establish it complied with 24 

C.F.R. 203.604 by having a face-to-face interview with Appellants, or by making a 
Stark County, Case No. 2011CA00095 8

reasonable attempt to arrange a face-to-face interview before bringing the foreclosure 

action. Id. This Court held sending a certified letter is “the minimum requirement for a 

reasonable effort to arrange a face-to-face meeting.” Id. 

(¶26) The law of the case doctrine provides a decision of a reviewing court in a 

case remains the law of the case on the legal questions involved for all subsequent 

proceedings in the case at both the trial and reviewing levels. Nolan v. Nolan (1984), 11 

Ohio St.3d 1. Here, on remand, and for the first time in these proceedings, Appellee 

U.S. Bank asserted it was not required to comply with the face-to-face interview 

requirement due to Appellants’ bankruptcy. Appellee did not assert this argument 

during the prior appeal or as a basis for reconsideration thereof. Instead Appellant 

raised the issue for the first time on remand. We find the argument is subject to issue 

preclusion pursuant to the law of the case doctrine. 

(¶27) Appellee U.S. Bank’s January 29, 2010 motion for summary judgment 

which was the subject of the prior appeal asserts compliance with all necessary HUD 

regulations as conditions precedent. If Appellee wanted to argue it was excused from 

compliance with the condition precedent of a face-to-face meeting due to Appellants’ 

bankruptcy, it could have made the argument prior to or during the first appeal. 

Appellee had the opportunity to raise the argument during the prior appeal to this Court 

as a conditional cross-assignment of error but failed to do so; therefore, is judicially 

estopped by law of the case doctrine from raising the issue upon remand to the trial 

court. 

(¶28) Appellant’s filed a motion for summary judgment on March 7, 2011, and 

U.S. Bank filed a memorandum contra on March 7, 2011. U.S. Bank’s memorandum 
Stark County, Case No. 2011CA00095 9

contra does not establish compliance with the conditions precedent set forth in the HUD 

regulations. Therefore, the trial court erred in not granting summary judgment in favor 

of Appellants. 

(¶29) Appellants’ assignments of error are sustained. 

(¶30) The judgment of the Stark County Court of Common Pleas is reversed. 

Pursuant to App. R.12(B), we order final judgment granting Appellants’ motion for 

summary judgment and order Appellee’s foreclosure action dismissed and costs 

assessed to Appellee. 

By: Hoffman, P.J. 

Wise, J. and 

Edwards, J. concur 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ John W. Wise _____________________

 HON. JOHN W. WISE 

 s/ Julie A. Edwards ___________________

 HON. JULIE A. EDWARDS 

 
Stark County, Case No. 2011CA00095 10

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

U.S. BANK, N.A. : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

BENJAMIN R. DETWEILER, ET AL. : 

 : 

 Defendants-Appellants : Case No. 2011CA00095 

 For the reasons stated in our accompanying Opinion, the judgment of the Stark 

County Court of Common Pleas is reversed. Summary judgment is granted to 

Appellants. Appellee’s foreclosure action is dismissed and costs incurred in the trial 

court are assessed to Appellee. Costs of this appeal are assessed to Appellee 

 ___________________________________ 

 HON. WILLIAM B. HOFFMAN 

 ___________________________________ 

 HON. JOHN W. WISE 

 ___________________________________ 

 HON. JULIE A. EDWARDS