[Cite as Wells Fargo Bank, NA v. Burd, 2016-Ohio-7706.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Wells Fargo Bank, N.A., : 

 Plaintiff-Appellant, : 

 No. 15AP-1044 

v. : (C.P.C. No. 14CV-8577) 

A. Christopher M. Burd f.k.a. : (REGULAR CALENDAR) 

Christopher M. Burd et al., 

 : 

 Defendants-Appellees. 

 : 

 

D E C I S I O N 

Rendered on November 10, 2016 

 

On brief: Thompson Hine LLP, Scott A. King, and Terry W. 

Posey, Jr., for appellant. Argued: Scott A. King. 

On brief: The Manner Law Firm, LLC, and Mathias D. 

Manner, for appellee A. Christopher M. Burd. Argued: 

Mathias D. Manner. 

 

APPEAL from the Franklin County Court of Common Pleas 

DORRIAN, P.J. 

{¶ 1} Plaintiff-appellant, Wells Fargo Bank, N.A. ("Wells Fargo"), appeals from a 

judgment of the Franklin County Court of Common Pleas granting summary judgment in 

favor of defendant-appellee, A. Christopher M. Burd, on Wells Fargo's claims for 

judgment on a note and foreclosure of a mortgage. For the reasons that follow, we affirm 

in part and reverse in part.1

 

1 The trial court's judgment entry also granted Wells Fargo's motion for default judgment against defendant 

Jane Doe, the name-unknown spouse of Burd. We note that portion of the judgment entry was not appealed. 
No. 15AP-1044 2 

I. Facts and Procedural History 

{¶ 2} In September 2006, Burd obtained a loan from Centennial Home Mortgage, 

LLC ("Centennial"), for $231,653, and signed a note ("the Note") promising to repay the 

loan. The Note was secured by a mortgage ("the Mortgage") in favor of Centennial on 

property located at 6924 Shady Rock Lane in Blacklick, Ohio ("the Property"). The copy 

of the Note attached to the complaint giving rise to this appeal includes an allonge bearing 

a special indorsement from Centennial to Wells Fargo and an indorsement in blank by 

Wells Fargo. The mortgage was also assigned from Centennial to Wells Fargo. 

{¶ 3} On April 22, 2009, Wells Fargo filed its first complaint seeking judgment on 

the Note and foreclosure of the Mortgage. The complaint asserted that Burd defaulted on 

the Note and sought the principal due on the Note, along with interest from November 1, 

2008, and other charges. Ultimately, Wells Fargo and Burd entered into a loan 

modification agreement on December 1, 2010 ("the Loan Modification Agreement"), and 

Wells Fargo voluntarily dismissed the first foreclosure complaint with prejudice. 

{¶ 4} Wells Fargo subsequently filed a second complaint on February 10, 2012, 

seeking judgment on the Note and foreclosure of the Mortgage. The complaint asserted 

that Burd defaulted on the Note, as modified by the Loan Modification Agreement, and 

sought the principal due on the Note, along with interest from September 1, 2011, and 

other charges. During the course of that proceeding, Wells Fargo and Burd participated 

in a court-sponsored mediation session on August 1, 2012, but were unable to resolve the 

case through mediation. The trial court granted summary judgment in favor of Burd, 

concluding that Wells Fargo failed to satisfy a condition precedent for foreclosure of the 

mortgage or, in the alternative, that Burd had established an affirmative defense to 

foreclosure. 

{¶ 5} On August 18, 2014, Wells Fargo filed a third complaint seeking judgment 

on the Note and foreclosure of the Mortgage, which resulted in the present appeal. The 

complaint asserted that Burd defaulted on the Note, as modified by the Loan Modification 

Agreement, and sought the principal due on the Note, along with interest from 

September 1, 2011, and other charges. Wells Fargo and Burd each moved for summary 

judgment. The trial court denied Wells Fargo's motion for summary judgment and 

granted summary judgment in favor of Burd. The trial court held that Wells Fargo failed 
No. 15AP-1044 3 

to comply with the face-to-face meeting requirement contained in 24 C.F.R. 203.604, 

which it concluded was a condition precedent to foreclosure. 

II. Assignment of Error 

{¶ 6} Wells Fargo appeals and assigns the following single assignment of error for 

our review: 

The trial court erred in granting summary judgment to 

appellee and in overruling appellant's motion for summary 

judgment. 

III. Discussion 

A. Standard of Review 

{¶ 7} An order granting summary judgment is subject to de novo review. Capella 

III, L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.), citing 

Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). "De novo appellate 

review means that the court of appeals independently reviews the record and affords no 

deference to the trial court's decision." (Internal quotations and citations omitted.) Holt 

v. State, 10th Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9. Summary judgment is 

appropriate where "the moving party demonstrates that: (1) there is no genuine issue of 

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." Cappella III at ¶ 16, 

citing Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6. In ruling on a 

motion for summary judgment, the court must resolve all doubts and construe the 

evidence in favor of the non-moving party. Pilz v. Ohio Dept. of Rehab. & Corr., 10th 

Dist. No. 04AP-240, 2004-Ohio-4040, ¶ 8. Therefore, we undertake an independent 

review to determine whether Burd was entitled to judgment as a matter of law on Wells 

Fargo's claims. 

B. Claim for Foreclosure of Mortgage 

{¶ 8} The trial court granted summary judgment in favor of Burd based on its 

conclusion that Wells Fargo failed to comply with the requirements of 24 C.F.R. 203.604. 

That regulation, which governs mortgages insured by the United States Department of 

Housing and Urban Development ("HUD"), provides that: 
No. 15AP-1044 4 

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 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, or at least 30 days before 

assignment is requested if the mortgage is insured on 

Hawaiian home land pursuant to section 247 or Indian land 

pursuant to section 248 or if assignment is requested under § 

203.350(d) for mortgages authorized by section 203(q) of the 

National Housing Act. 

24 C.F.R. 203.604(b). 

{¶ 9} The regulation further provides an exception to the face-to-face interview 

requirement if certain conditions apply. 24 C.F.R. 203.604(c). One circumstance in 

which a face-to-face interview is not required occurs when "[a] reasonable effort to 

arrange a meeting is unsuccessful." 24 C.F.R. 203.604(c)(5). The regulation specifies 

that a reasonable effort to arrange a face-to-face interview shall consist of at least one 

letter sent to the mortgagor by certified mail and at least one trip to see the mortgagor at 

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

its servicer, or a branch office of the mortgage or its servicer, or the mortgagee does not 

reside in the mortgaged property. 24 C.F.R. 203.604(d). 

{¶ 10} With respect to the exceptions to the face-to-face meeting requirement, 

Wells Fargo asserted that it sent a letter to Burd by certified mail on January 10, 2014, 

inviting him to participate in a face-to-face meeting to discuss mortgage payment 

assistance options. Assuming for purposes of analysis that this letter would have been 

sufficient to satisfy the first step necessary to demonstrate a "reasonable effort to arrange 

a face-to-face meeting with the mortgagor," as defined by 24 C.F.R. 203.604(d), there was 

no evidence that a representative of Wells Fargo made a trip to see Burd at the mortgaged 

property, nor did Wells Fargo assert that any such visit took place. In addition, Burd 

attested that Wells Fargo had never sent a representative to the property. Therefore, 

Wells Fargo was not exempt from the face-to-face meeting requirement under 24 C.F.R. 

203.604(c)(5) by establishing that a reasonable effort to arrange a meeting was 
No. 15AP-1044 5 

unsuccessful. Similarly, there was no evidence that any of the other exceptions to the 

face-to-face meeting requirement set forth in 24 C.F.R. 203.604(c)(1) through (4) applied 

in this case. Accordingly, it is appropriate to consider whether Wells Fargo complied with 

the face-to-face meeting requirement under 24 C.F.R. 203.604(b). 

{¶ 11} In support of its motion for summary judgment, Wells Fargo submitted an 

affidavit from Maynhia Her, who held the title of Vice President Loan Documentation 

with Wells Fargo. This affidavit contained several assertions that are relevant to 

determining whether Wells Fargo complied with the requirements of 24 C.F.R. 203.604. 

She asserted that Burd's last payment was received on September 15, 2011, and was 

applied toward the payment that had been due on September 1, 2011. She further 

asserted that Burd's account was due and owing for the October 1, 2011 payment, with 

interest running from September 1, 2011. Finally, she claimed that a face-to-face meeting 

occurred between Wells Fargo's counsel and Burd on August 1, 2012 as part of a courtsponsored mediation during the second foreclosure case. Burd also submitted an affidavit 

in support of his motion for summary judgment, in which he admitted that he attended 

the court-sponsored mediation in August 2012, but denied that he had any subsequent 

face-to-face meeting with a representative from Wells Fargo. 

{¶ 12} By asserting that Burd's account was due and owing from October 1, 2011, 

and that it participated in a face-to-face meeting with Burd on August 1, 2012, Wells Fargo 

effectively admits that it did not have a face-to-face meeting with Burd "before three full 

monthly installments due on the mortgage [were] unpaid" as required by 24 C.F.R. 

203.604(b). Wells Fargo argues, however, that it complied with the regulation because 

the face-to-face meeting with Burd occurred before it filed the third foreclosure 

complaint. Wells Fargo notes that 24 C.F.R. 203.604 itself does not specify a penalty for 

failing to have a face-to-face meeting within the time provided in the regulation. It 

further argues that, under the HUD regulatory scheme, a lender that fails to comply with 

the servicing regulations will not be denied federal loan-insurance benefits, but may be 

subject to civil penalties. Thus, Wells Fargo claims, when a mortgagee fails to attempt to 

arrange or conduct a face-to-face meeting within the deadline set forth in 24 C.F.R. 

203.604(b), the regulation should be read to permit the mortgagee to "cure" this noncompliance by attempting to arrange or having the meeting before filing for foreclosure. 
No. 15AP-1044 6 

{¶ 13} Wells Fargo also cites to decisions from the Seventh District Court of 

Appeals holding that the deadlines set forth in 24 C.F.R. 203.604 are "aspirational," while 

the requirement of conducting the face-to-face meeting is mandatory. PNC Mtge. v. 

Garland, 7th Dist. No. 12 MA 222, 2014-Ohio-1173, ¶ 30; Bank of Am. v. Bobovyik, 7th 

Dist. No. 13 CO 54, 2014-Ohio-5499, ¶ 35-36. In Garland, the Seventh District primarily 

focused on whether compliance with HUD regulations was a condition precedent to 

foreclosure or an affirmative defense to a foreclosure action. After examining the general 

regulatory scheme, the court concluded that HUD clearly intended for mortgagees to 

comply with the regulatory requirements, including the face-to-face meeting requirement, 

before commencing a foreclosure action. Thus, the court held that compliance with the 

regulatory provisions was a condition precedent to foreclosure. Garland at ¶ 27. The 

Garland court noted that the Second District Court of Appeals had reached the opposite 

conclusion, reasoning in part that construing the regulations as conditions precedent 

would have the effect of forever precluding foreclosure if a mortgagee failed to comply 

with a regulatory deadline. Id. at ¶ 29, citing Wells Fargo Bank, N.A. v. Goebel, 2d Dist. 

No. 25745, 2014-Ohio-472, ¶ 23-25. Expressing its disagreement with the Second 

District, the Garland court noted in dicta that the specific deadlines set out in the 

regulations were "aspirational," while the obligation to perform the duties under the 

regulations was mandatory. Garland at ¶ 30. The court also offered the following 

example: 

[I]f 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 face-to-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-toface meeting within the first three months of default, would 

not bar the foreclosure action, as long as the bank held the 

meeting sometime before filing the action; e.g. in the fourth or 

fifth month. 

(Emphasis sic.) Id. Later, in Bobovyik, the Seventh District affirmed a grant of summary 

judgment in favor of the lender, holding in part that summary judgment was not 

precluded where the lender sent the borrower a letter attempting to arrange a face-to-face 
No. 15AP-1044 7 

meeting four months prior to filing for foreclosure, despite the fact that the letter was sent 

more than two years after the initial notice of default with intent to accelerate. Bobovyik

at ¶ 39. Although we acknowledge the dicta in the Garland decision and the holding in 

Bobovyik, those decisions are not binding on this court; they are also distinguishable from 

the present case. 

{¶ 14} Under the circumstances presented in this case, we conclude that Wells 

Fargo failed to comply with the requirements of 24 C.F.R. 203.604(b), and that Burd was 

entitled to summary judgment on the mortgage claim. As explained above, Wells Fargo 

has sought to foreclose on the Property three times; the second and third foreclosure 

complaints both sought to recover interest from September 1, 2011, and, therefore, appear 

to be based on the same default date. There is no evidence that Wells Fargo attempted to 

comply with 24 C.F.R. 203.604(b) prior to filing the second foreclosure complaint, and 

summary judgment was granted in favor of Burd due to that failure to comply. Wells 

Fargo now effectively seeks to revive the second foreclosure complaint based on the fact 

that it participated in an unsuccessful court-sponsored mediation session during the 

litigation resulting from the second foreclosure complaint. In evaluating the parties' 

summary judgment motions, the trial court assumed for purposes of analysis that the 

court-sponsored mediation could constitute a "face-to-face meeting" for purposes of 24 

C.F.R. 203.604(b), and without deciding the issue, we will do the same. Given that 

assumption, however, we find that Wells Fargo failed to comply with either the letter or 

the spirit of the regulation. See, e.g., Mtge. Assocs. v. Smith, N.D.Ill. No. 86 C 1 (Sept. 16, 

1986) ("Plaintiff has failed to comply with either the letter or the spirit of the HUD 

servicing requirements."). This is not a case where, as theorized in Garland, a bank holds 

a face-to-face meeting a few months after a third payment is missed but prior to filing 

foreclosure. Rather, in this case, Wells Fargo and Burd participated in a court-sponsored 

mediation session after a foreclosure proceeding had been initiated. Outside of that 

court-sponsored mediation, Wells Fargo made no other attempt to comply with the 

requirements of 24 C.F.R. 203.604(b). It is true that this appeal arises from a new 

foreclosure complaint filed after the unsuccessful mediation session occurred, but that 

new complaint was based on the same alleged default as the second complaint. Thus, 

Burd had no opportunity to avoid foreclosure arising from that alleged default. Given this 
No. 15AP-1044 8 

scenario, we conclude that Wells Fargo failed to comply with the requirements of 24 

C.F.R. 203.604(b) and Burd was entitled to summary judgment on Wells Fargo's 

mortgage claim.2

C. Claim for Judgment on the Note

{¶ 15} Wells Fargo also argues that the trial court erred by granting summary 

judgment in favor of Burd on Wells Fargo's claim for the balance due under the Note. 

Wells Fargo asserts that 24 C.F.R. 203.604 only requires a face-to-face meeting before 

seeking foreclosure on a mortgage and does not govern a claim for monetary judgment on 

a note. Burd responds that Wells Fargo can not pursue a personal judgment against him 

on the Note because it expressly waived the right to do so under the terms of the Loan 

Modification Agreement. 

{¶ 16} As discussed above, the trial court focused on 24 C.F.R. 203.604(b) and 

concluded that Burd was entitled to summary judgment because Wells Fargo failed to 

comply with the requirements of that regulatory provision. The trial court's judgment did 

not contain any separate discussion or analysis of Wells Fargo's claim for judgment on the 

Note. The default clause in the Note states that HUD regulations may limit a lender's 

rights to require immediate payment in full in the case of default and states that the Note 

does not authorize acceleration when not permitted by HUD regulations. Wells Fargo 

correctly observes, however, that 24 C.F.R. 203.604 addresses the steps that must be 

taken "before foreclosure is commenced" and does not address acceleration of a note. 

Compare 24 C.F.R. 201.50(a) (requiring a lender to discuss the reasons for default and 

seek a cure in a face-to-face meeting or by telephone before taking action to accelerate the 

maturity of a manufactured home loan). Thus, failure to comply with 24 C.F.R. 203.604 

does not appear to prohibit Wells Fargo from attempting to recover a personal judgment 

against Burd under the Note. 

{¶ 17} The Loan Modification Agreement entered between the parties stated that 

Burd had filed for bankruptcy in September 2007 and had received a discharge in 

bankruptcy in February 2008. The Loan Modification Agreement also stated that, during 

 

2 Wells Fargo asserts that the effect of the trial court's summary judgment decision is to permanently bar 

foreclosure on the mortgage. The question of whether Wells Fargo could demonstrate compliance with the 

regulatory requirements in another foreclosure action, perhaps based on a different default date, is not 

before us and we reach no conclusion as to that question. 
No. 15AP-1044 9 

the course of the bankruptcy proceeding, Burd never reaffirmed his debt under the Note. 

The agreement further provided that Wells Fargo acknowledged that Burd had received a 

discharge in bankruptcy and that he had no personal obligation to pay the debt secured by 

the Property. Despite this language in the Loan Modification Agreement, it appears that 

Burd's personal obligation under the Note may not have been discharged via bankruptcy. 

In his memorandum in opposition to Wells Fargo's motion for summary judgment, Burd 

asserted that he and Wells Fargo executed a reaffirmation agreement on January 23, 

2008 as part of the bankruptcy proceeding that affirmed his personal obligation on the 

Note. Later, in his motion for summary judgment, Burd asserted that the Loan 

Modification Agreement, which was entered into on December 1, 2010, voided his 

personal liability on the Note and that Wells Fargo breached the Loan Modification 

Agreement by seeking personal judgment on the Note. As part of this argument, Burd 

asserted that both parties were mistaken as to the validity of the reaffirmation agreement 

entered into during the bankruptcy proceeding. Given this dispute between the parties 

about the effect of the reaffirmation agreement entered in the bankruptcy proceeding and 

the effect of the Loan Modification Agreement on Burd's personal liability under the Note, 

it appears that there were genuine issues of material fact with respect to Wells Fargo's 

claim for judgment on the Note. Accordingly, the trial court erred by granting summary 

judgment in favor of Burd on the claim for judgment on the Note. Wells Fargo's 

assignment of error is sustained in part and overruled in part. 

IV. Conclusion 

{¶ 18} For the foregoing reasons, Wells Fargo's sole assignment of error is 

sustained in part and overruled in part. We affirm the judgment to the extent it granted 

summary judgment in favor of Burd on Wells Fargo's claim for foreclosure on the 

Mortgage, and we reverse the judgment to the extent that it granted summary judgment 

in favor of Burd on Wells Fargo's claim for judgment on the Note. This matter is 

remanded to the Franklin County Court of Common Pleas for further proceedings in 

accordance with law and consistent with this decision. 

Judgment affirmed in part, 

reversed in part; and cause remanded. 

BRUNNER and HORTON, JJ., concur.