[Cite as RBS v. Sharp, 2018-Ohio-2480.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

MAHONING COUNTY

RBS CITIZENS NA, 

Plaintiff-Appellee, 

v. 

MARY KAY SHARP ET AL., 

Defendants-Appellants.

 

OPINION AND JUDGMENT ENTRY 

Case No. 17 MA 0059

 

Civil Appeal from the 

Court of Common Pleas of Mahoning County, Ohio 

Case No. 2016 CV 01543. 

BEFORE: 

Gene Donofrio, Cheryl L. Waite, Kathleen Bartlett, Judges. 

JUDGMENT: 

Affirmed. 

Atty. Phillip Barragate and Atty. Ashlyn Heider, Shapiro Van Ess Phillips & Barragate, 

4805 Montgomery Road, Suite 320, Norwood, Ohio 44512, for Plaintiff-Appellee. 

Atty. Bruce Broyles, Bruce M. Broyles Co LPA, 164 Griswold Drive, Boardman, Ohio 

44512, for Defendant-Appellant. 

 

Dated: 

June 22, 2018 
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Case No. 17 MA 0059 

 

Donofrio, J. 

{¶1} Defendant-appellant, Mary Kay Sharp, appeals the judgment of the 

Mahoning County Court of Common Pleas granting summary judgment in favor of 

plaintiff-appellee, Citizens Bank, NA fka RBS Citizens, NA. 

{¶2} On January 13, 2010, appellant executed a promissory note which was 

secured by a mortgage in favor of appellee. On April 1, 2010, appellant defaulted on the 

note. Appellee filed a foreclosure complaint against appellant on August 9, 2011. 

{¶3} Appellee moved for summary judgment with the trial court and appellant 

opposed said motion. The trial court granted summary judgment in favor of appellee. 

Summary judgment in favor of appellee was reversed and remanded by this Court on 

appeal. RBS Citizens, NA v. Sharp, 7th Dist. No. 13 MA 11, 2015-Ohio-5438. In our 

reasoning, we held that the note and mortgage were governed by 24 CFR § 203.604(d) 

which required the mortgagee to make a reasonable effort to arrange a face-to-face 

meeting with the mortgagor prior to initiating a foreclosure action. The mortgagee is 

required to send a letter to the mortgagor via certified mail attempting to arrange a faceto-face meeting. While appellee sent the letter detailing appellant’s right to a face-toface meeting, it was done via regular mail and not certified mail. Because the letter was 

not sent by certified mail, this Court held that there were genuine issues of material fact 

concerning appellee’s compliance with CFR 24 § 203.604. 

{¶4} On remand, the trial court denied appellee’s motion for summary judgment 

on the basis that there were factual issues regarding appellee’s compliance with CFR 

24 § 203.604. Appellee dismissed its complaint without prejudice. 

{¶5} On May 13, 2016, appellee sent appellant a letter via certified mail 

informing appellant of her right to request a face-to-face meeting. On June 4, 2016, 

appellee sent a representative to appellant’s residence to discuss arranging a face-toface meeting. Appellant declined the request for the face-to-face meeting and indicated 

that any information she received from appellee’s representative would be forwarded to 

her attorney. Three days later, on June 7, 2016, appellee filed another complaint in 

foreclosure against appellant and her husband, James Sharp. 
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{¶6} Appellee filed another motion for summary judgment on its foreclosure 

claim. In this motion, appellee attached an affidavit from Ida Goode, a foreclosure 

specialist employed with appellee. The motion also contained numerous exhibits which 

showed: the existence of a promissory note between appellant, appellant’s husband, 

and appellee, an open end mortgage on appellant’s property, an assignment of the 

mortgage to appellee, a payment history which showed that appellant defaulted around 

April of 2010, and a letter from appellee to appellant dated May, 13, 2016 sent via 

certified mail which explained appellant’s right to have a face-to-face interview to 

discuss possible foreclosure alternatives. 

{¶7} Appellant opposed appellee’s motion for summary judgment arguing that 

there were genuine issues of material fact concerning appellee’s compliance with 24 

CFR § 203.604. Specifically, appellant argued that appellee “failed [to] put forth 

evidence that [appellee] [sic] to considered [appellant and her husband] for loss 

mitigation in the hierarchy required by [the Department of Housing and Urban 

Development] Mortgagee letter 00-05.” (Memo in Opposition to Summary Judgment, 4). 

Specifically, appellant argued that there was no evidence appellee considered appellant 

for special forbearance or a partial claim in order to mitigate the loss. Additionally, 

appellant argued that shortly after appellee’s representative visited appellant’s 

residence, on advice of counsel, appellant contacted appellee and requested a loan 

modification application. But prior to receiving said application, appellee instituted this 

action. 

{¶8} In its judgment entry dated February 21, 2017, the trial court granted 

appellee’s motion for summary judgment finding that appellee satisfied all Department 

of Housing and Urban Development (HUD) loss mitigation requirements. The trial court 

issued its final judgment entry for foreclosure in rem on March 6, 2017. Appellant timely 

filed this appeal on April 4, 2017. Appellant raises one assignment of error. 

{¶9} Appellant’s sole assignment of error states: 

 THE TRIAL COURT ERRED IN GRANTING SUMMARY 

JUDGMENT WHEN THERE REMAINED A GENUINE ISSUE OF 

MATERIAL FACT IN DISPUTE AS TO WHETHER APPELLEE 
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SATISFIED ALL CONDITIONS PRECEDENT PRIOR TO 

ACCELERATING THE BALANCE DUE. 

{¶10} Appellant argues that appellee was required to follow HUD regulations 

prior to accelerating the balance on her promissory note. Appellant argues that because 

the balance on the note was accelerated in 2010 or 2011 and appellee only complied 

with the face-to-face meeting letter requirement in 2016, appellee failed to fully comply 

with the regulations. 

{¶11} An appellate court reviews the granting of summary judgment de novo. 

Comer v. Risko, 106 Ohio St.3d 185, 2005–Ohio–4559, 833 N.E.2d 712, ¶ 8. Thus, we 

shall apply the same test as the trial court in determining whether summary judgment 

was proper. 

{¶12} A court may grant summary judgment only when (1) no genuine issue of 

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

(3) the evidence can only produce a finding that is contrary to the non-moving party. 

Mercer v. Halmbacher, 9th Dist., 2015–Ohio–4167, 44, 44 N.E.3d 1011 N.E.3d 1011, ¶ 

8; Civ.R. 56(C). The initial burden is on the party moving for summary judgment to 

demonstrate the absence of a genuine issue of material fact as to the essential 

elements of the case with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 

Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). If the moving party meets its burden, the 

burden shifts to the non-moving party to set forth specific facts to show that there is a 

genuine issue of material fact. Id.; Civ.R. 56(E). “Trial courts should award summary 

judgment with caution, being careful to resolve doubts and construe evidence in favor of 

the nonmoving party.” Welco Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346, 

617 N.E.2d 1129 (1993). 

{¶13} The HUD regulation requiring a mortgagee to notify a mortgagor of the 

right to have a face-to-face meeting is codified at 24 CFR § 203.604. This code section 

states, in relevant part: 

(b) The mortgagee must have a face-to-face interview with the mortgagor, 

or make a reasonable effort to arrange such a meeting, before three full 

monthly installments due on the mortgage are unpaid. If default occurs in 
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Case No. 17 MA 0059 

a repayment plan arranged other than during a personal interview, the 

mortgagee must have a face-to-face meeting with the mortgagor, or make 

a reasonable attempt to arrange such a meeting within 30 days after such 

default and at least 30 days before foreclosure is commenced * * *. 

* * * 

(d) A reasonable effort to arrange a face-to-face meeting with the 

mortgagor shall consist at a minimum of one letter sent to the mortgagor 

certified by the Postal Service as having been dispatched. Such a 

reasonable effort to arrange a face-to-face meeting shall also include at 

least one trip to see the mortgagor at the mortgaged property, unless the 

mortgaged property is more than 200 miles from the mortgagee, its 

servicer, or a branch office of either, or it is known that the mortgagor is 

not residing in the mortgaged property. 

24 CFR 203.604(b) and (d). 

{¶14} In response, appellee cites this Court’s decision in PNC Mortgage v. 

Garland, 7th Dist. No. 12 MA 222, 2014-Ohio-1173. In Garland, Garland was also 

challenging the bank’s compliance with the face-to-face meeting requirement set forth in 

24 CFR 203.604. In Garland, we held: 

Under our reading of the regulations, the specific time deadlines 

referenced by the court are aspirational, whereas the obligation to perform 

those conditions (i.e., the requirement to actually have a face-to-face 

meeting, absent one of the stated exceptions), is mandatory. For example, 

if a bank commences a foreclosure action at the earliest possible time, the 

day after the third payment is missed, the bank's failure to have the faceto-face meeting within the first three months of default, would, absent one 

of the exceptions, bar the bank from filing the foreclosure action. On the 

other hand, if the bank waited until the borrower missed six payments, for 

example, the bank's failure to have the face-to-face meeting within the first 

three months of default, would not bar the foreclosure action, as long as 
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Case No. 17 MA 0059 

the bank held the meeting sometime before filing the action; e.g. in the 

fourth or fifth month. 

Garland at ¶ 30. 

{¶15} Additionally, appellee relies on this Court’s decision in Bank of Am. v. 

Bobovyik, 7th Dist. No. 13 CO 54, 2014-Ohio-5499. In Bobovyik, in 2009, defendantappellant Bobovyik defaulted on a promissory note which was secured by a mortgage. 

Id. at ¶ 2-3. The bank sent a notice of default along with an intent to accelerate the 

balance due on October 8, 2009. Id. The bank filed an action in foreclosure but then 

dismissed it. Id. The bank refiled its action in foreclosure against Bobovyik on July 12, 

2012 averring that it complied with all conditions precedent in the note and mortgage. 

Id. There is only one indication of the bank sending Bobovyik a letter detailing 

Bobovyik’s right to have a face-to-face meeting. Said letter was sent on March 15, 2012 

and received on March 20, 2012. Id. at ¶ 5. The letter in Bobovyik appears to have been 

sent after the first action but prior to the second action. 

{¶16} Eventually, the bank filed for summary judgment which Bobovyik opposed 

arguing, among other things, that the bank failed to comply with the reasonable effort to 

arrange a face-to-face meeting requirement. Id. at ¶ 5, 7. The trial court granted 

summary judgment to the bank. Id. at ¶ 10. 

{¶17} Affirming the trial court’s decision to grant summary judgment in favor of 

the bank, this Court, citing Garland, held that a foreclosure action is not prohibited “if the 

efforts at the meeting occurred after the first three months (the deadline for the HUD 

regulation) but before commencement of the foreclosure action.” Id. at ¶ 38. 

Furthermore, this Court elaborated on the decision in Garland stating that “the failure to 

offer a meeting prior to foreclosure is a condition precedent (which must be raised in the 

answer with specificity or is waived) but otherwise the timing of the meeting is not a 

condition precedent.” Id. 

{¶18} Applying this Court’s decisions in Garland and Bobovyik, appellee 

complied with 24 CFR 203.604(b) and (d). Appellee attached to its motion for summary 

judgment a letter dated May 13, 2016 which detailed appellant’s right to have a face-toface meeting. Appellee also attached evidence that said letter was sent via certified 

mail. Additionally, appellee sent a representative to appellant’s home on June 4, 2016. 
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Case No. 17 MA 0059 

Appellant does not contest this particular fact. (Brief of Appellant, 3). Appellee sent the 

letter via certified mail and filed this action after it made a reasonable attempt to arrange 

a face to face meeting. Thus, summary judgment was proper. 

{¶19} Accordingly, appellant’s sole assignment of error lacks merit and is 

overruled. 

{¶20} For the reasons stated above, the trial court’s judgment is hereby affirmed. 

Waite, J., concurs 

Bartlett, J., concurs 

 

 
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Case No. 17 MA 0059 

 

For the reasons stated in the Opinion rendered herein, appellant’s sole 

assignment of error lacks merit and is overruled. It is the final judgment and order of 

this Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, 

is affirmed. Costs to be taxed against the Appellant. 

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution. 

 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.