Wilmington Savings Fund Society v. Salahuddin

[Cite as Wilmington Savings Fund Society v. Salahuddin, 2020-Ohio-6934.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Wilmington Savings Fund Society, FSB, :

d.b.a. Christiana Trust as Owner

Trustee of The Residential Credit :

Opportunities Trust III,

: No. 19AP-190

Plaintiff-Appellee, (C.P.C. No. 17CR-11307)

:

(REGULAR CALENDAR)

v. :

Ameena C. Salahuddin, :

Defendant-Appellant. :

D E C I S I O N

Rendered on December 29, 2020

On brief: Keith D. Weiner & Associates Co., LPA and Suzana

Krasnicki, for appellee. Argued: Suzana Krasnicki.

On brief: Ameena C. Salahuddin, pro se. Argued:

Ameena C. Salahuddin.

APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.

Defendant-appellant, Ameena C. Salahuddin, pro se, appeals from a

judgment entry and foreclosure decree of the Franklin County Court of Common Pleas

entered on March 6, 2019, in favor of plaintiff-appellee, Wilmington Savings Fund Society,

FSB, d.b.a. Christiana Trust as Owner of The Residential Credit Opportunities Trust III

("Wilmington"). In its decision, the trial court granted Wilmington's motion for summary

judgment against Salahuddin and its motion for default judgment against other defendants

who are not parties to this appeal. Additionally, the trial court dismissed Salahuddin's

counterclaim against Wilmington and her motion for summary judgment. For the reasons

No. 19AP-190 2

that follow, we sustain in part and reverse in part the decision of the trial court and remand

the matter for further proceedings consistent with this decision.

I. FACTS AND PROCEDURAL HISTORY

The underlying foreclosure action commenced December 22, 2017, with the

filing of a complaint for money damages, foreclosure, and other equitable relief by

Wilmington that named as defendants Salahuddin and other parties not involved in this

appeal.1

Salahuddin purchased a home at 6147 Olde Orchard Drive, Columbus, Ohio

43213 in 2008 with a loan she obtained from The American Eagle Mortgage Corp. On or

about October 16, 2008, Salahuddin signed and delivered to The American Eagle Mortgage

Corp. a promissory note ("the Note") in which she promised to pay The American Eagle

Mortgage Corp. or its transferee the principal of $132,863.00, plus interest at the rate of

6.25 percent per annum. The loan was insured through the Federal Housing

Administration ("FHA"). As part of the same transaction, Salahuddin signed and delivered

the mortgage deed ("the Mortgage") for the Olde Orchard Drive home as security for the

Note. The Note and the Mortgage were subsequently assigned to other entities, including

JPMorgan Chase Bank, N.A., and ultimately to Wilmington.

Wilmington claims Salahuddin has defaulted in payment of the Note.

Consequently, Wilmington has declared the debt due, has accelerated the debt, and

demands immediate payment in full. Wilmington attached to its complaint numerous

exhibits, including a copy of the Note executed October 16, 2008, a copy of the Mortgage

executed October 16, 2008, the assignments of the Mortgage from The American Eagle

Mortgage Corp. to numerous successors until Wilmington, to which it was assigned on or

about May 10, 2017.

1 Prior to the commencement of the underlying matter, JPMorgan Chase Bank, N.A. had filed a foreclosure

action against Salahuddin for the Note and the Mortgage on October 25, 2013. JPMorgan Chase Bank, N.A.

v. Salahuddin, Franklin C.P. No. 13CV-11816. The trial court permitted Wilmington to be substituted as

plaintiff in that action on May 5, 2015. After the trial court found that required notices had not been given

before the foreclosure action had been commenced, Wilmington moved for dismissal without prejudice, which

the trial court granted on February 4, 2016. Wilmington filed a second foreclosure action against Salahuddin

on July 27, 2016, which the trial court dismissed, again on Wilmington's motion, on July 14, 2017.

Wilmington Trust v. Salahuddin, Franklin C.P. No. 16CV-6987

No. 19AP-190 3

Salahuddin, pro se, filed a request for mediation on February 2, 2018 and, on

February 12, 2018, filed her answer and counterclaim. Wilmington answered Salahuddin's

counterclaim on March 12, 2018.

The trial court referred the underlying matter to mediation. However, at the

scheduled mediation hearing, Salahuddin indicated she did not wish to proceed without

legal counsel and, therefore, mediation was not held. The trial court restored the

underlying matter to the active docket and issued an order amending the case schedule.

On September 24, 2018, Wilmington filed a motion for summary judgment

against Salahuddin on its complaint and on Salahuddin's counterclaim against

Wilmington. Wilmington attached in support of its motion the affidavit of Michael

Surowiec,2 Vice-President of Asset Management for AMIP Management, LLC, the

mortgage servicer for Wilmington at the time the underlying action was filed. Attached as

exhibits to the Surowiec affidavit were a stated true and accurate copy of the Note, a stated

true and accurate copy of the Mortgage, stated true and accurate copies of the assignments

of the Mortgage beginning February 20, 2013 through May 10, 2017, a stated true and

accurate notice of default and intent to accelerate that Wilmington sent Salahuddin by both

certified and first class mail on February 23, 2016, and a payment history of payments

received on Salahuddin's loan. Also attached to the Surowiec affidavit were stated true and

accurate copies of two letters JPMorgan Chase Bank, N.A. had sent to Salahuddin on

October 9 and December 11, 2012 regarding her options to pay the past-due amount on the

mortgage. Both letters also contained the following language, "[a]s required by [HUD], we

have scheduled a JM Adjustment Services representative to visit your home on behalf of

Chase within the next 20 days to discuss a possible repayment plan. * * * This face-to-face

meeting could provide a solution to help you pay the past-due amount on your mortgage."

(Ex. 9 at 1, 3, attached to Sept. 24, 2018 Wilmington's Mot. for Summ. Jgmt.) Neither

contained a date for the face-to-face meeting that was referenced in each letter.

On October 22, 2018, Salahuddin filed a motion requesting leave to file a

memorandum contra Wilmington's motion for summary judgment, instanter. Salahuddin

2 We note that affiant's surname is spelled "Suroweic" in this affidavit but is spelled "Surowiec" in a

supplemental affidavit of this individual and in Wilmington's briefs. Not knowing which spelling is correct,

we use the spelling "Surowiec" throughout this decision for the sake of consistency.

No. 19AP-190 4

attached numerous exhibits to the motion, including an affidavit she had executed on

October 8, 2015. The same date, she filed a motion for summary judgment and

memorandum contra Wilmington's motion for summary judgment. On November 6, 2018,

the trial court granted Salahuddin's motion for leave and accepted as filed the

memorandum in opposition she had filed on October 22, 2018. The trial court also granted

Wilmington additional time to respond to Salahuddin's motion for summary judgment and

memorandum contra Wilmington's motion for summary judgment.

On November 27, 2018, Wilmington filed a brief in opposition to

Salahuddin's motion for summary judgment and reply brief in support of its motion for

summary judgment. Wilmington included in its motion for summary judgment Paragraph

6(B) of the Note, which references HUD regulations limiting a lender's right to require

immediate payment, which states as follows:

6. BORROWER'S FAILURE TO PAY

***

(B) Default

If Borrower defaults by failing to pay in full any monthly

payment, then Lender may, except as limited by regulations of

the Secretary in the case of payment defaults, require

immediate payment in full of the principal balance remaining

due and all accrued interest. Lender may choose not to exercise

this option without waiving its rights in the event of any

subsequent default. In many circumstances regulations issued

by the Secretary will limit Lender's rights to require immediate

payment in full in the case of payment defaults. This Note does

not authorize acceleration when not permitted by HUD

regulations. As used in this Note, "Secretary" means the

Secretary of Housing and Urban Development or his or her

designee.

(Emphasis sic.) (Ex. 1 at 2, attached to Wilmington's Mot. for Summ. Jgmt.)

Paragraph 9(d) of the Mortgage provides:

9. Grounds for Acceleration of Debt.

***

(d) Regulations of HUD Secretary. In many

circumstances regulations issued by the Secretary will limit

Lender's rights. In the case of payment defaults, to require

No. 19AP-190 5

immediate payment in full and foreclose if not paid. This

Security instrument does not authorize acceleration or

foreclosure if not permitted by regulations of the Secretary.

(Emphasis sic.) (Ex. 2 at 5, attached to Wilmington's Mot. for Summ. Jgmt.)

Wilmington also addressed Salahuddin's claim regarding Wilmington's

failure to schedule a face-to-face meeting as required by 24 C.F.R. 203.604. Wilmington

argued it was in compliance with the FHA regulations for face-to-face meetings, and stated

in pertinent part:

Further, [Wilmington], even though it isn't located within 200

miles of the mortgaged property nor is its servicer, sent

[Salahuddin] another request for a Face to Face [sic] Meeting.

Said letter is dated July 14, 2017. Said letter was sent by

certified mail, and after a visit to the property was completed,

[Wilmington] was told that [Salahuddin] did not reside at the

property, and that the property was rental property. (Fn. 1. See

the Supplemental Affidavit of Michael Surowiec3, ¶¶ 6-8, which

is attached hereto, incorporated herein and marked as Exhibit

A; see also the Exhibits attached to said Affidavit. The

Supplemental Affidavit will be referred to as "Pl. Supp. Aff.")

[Wilmington] was exempt from 24 CFR 203.604 but sent

[Salahuddin] a request for a face to face meeting anyway to

ensure compliance. [Salahuddin] avoided the meeting since the

individuals whom opened the door advised [Wilmington] that

they were renters, and the Ms. Salahuddin did not reside there.

(Fn. 2. Pl. Supp. Aff. ¶¶ 6-8.)

24 CFR 203.604 requires that the mortgagor make a

reasonable effort to arrange a face to face meeting, and such

reasonable effort requires that a letter be sent out and a visit to

the property be made, as long as the property is within 200

miles of the lender or its servicer. * * * There is no requirement

that [Wilmington] actually meet with [Salahuddin]; the only

requirement is that a reasonable effort be made to make

contact with [Salahuddin]. Both JPMorgan Chase and

[Wilmington] attempted to make contact with [Salahuddin].

[Salahuddin] is obviously avoiding contact so that she can later

try to allege that [Wilmington] did not comply with the

regulations. * * *

***

3As noted earlier in this decision, Wilmington filed an affidavit of this individual as exhibit A in support of its

motion for summary judgment, but the individual's surname on the earlier affidavit was spelled "Suroweic."

No. 19AP-190 6

[Wilmington] also directs the [trial court] to [Salahuddin's]

Affidavit, which was attached to her Motion for Summary

Judgment, at ¶ 5, where she states that no one ever conducted

a face to face meeting with her. It is important to note here that

[Salahuddin] doesn't say that she never received the letters sent

to her regarding the face to face meetings, and further, she

doesn't say that no one ever came to the property to conduct a

face to face meeting, she specifically says that the face to face

meetings didn't occur. 24 CFR 203.604 doesn't require that a

face to face meeting actually take place; it only requires that the

lender or servicer make a reasonable effort to arrange a

meeting, which was done by both JPMorgan Chase and

[Wilmington], in this matter.

(Nov. 27, 2018 Wilmington's Memo. in Opp. to Salahuddin's Mot. for Summ. Jgmt. at 3-4.)

On December 13, 2018, the trial court granted Salahuddin's motion for an

extension of time to file a reply in support of her own motion for summary judgment, giving

her until December 21, 2018 to file. On December 21, 2018, however, Salahuddin filed a

23-page reply brief titled "Memorandum in Support of Defendant's Motion for Summary

Judgment; Reply Memorandum of Defendant in Opposition of Plaintiff's Motion for

Summary Judgment."

On December 28, 2018, the trial court sua sponte ordered Salahuddin's

December 21, 2018 filing stricken for failure to conform with the trial court's December 13,

2018 decision and entry and because the 15-page reply brief exceeded the page limitation

for a reply brief by more than 16 pages.4 The trial court's December 28, 2018 order allowed

Salahuddin to file a complying amended reply brief within seven days of the date of the

order; i.e., not later than January 4, 2019. The trial court's order specified that no further

extensions would be granted, and page limitations would be strictly enforced.

On January 9, 2019, Salahuddin filed a motion for leave to file her amended

reply brief, instanter. In her motion, she stated she received notice from the trial court's e-

filing system on January 3, 2019 and that the trial court had stricken the reply brief she had

filed December 21, 2018. She also stated that, because the trial court had given her an

additional seven days to file a reply brief, she had until January 9, 2019—the seventh day

4 The trial court subsequently acknowledged that, in its December 28, 2018 decision, it had referred to Loc.R.

12.01 of the Franklin County Court of Common Pleas, General Division, in error, and that the section applying

to page limits of reply briefs is Loc.R. 12.02, which limits reply briefs to no more than seven pages. See Feb. 9,

2019 Decision and Entry at 2.

No. 19AP-190 7

after she received notice of the trial court's December 28, 2018 order—to file a conforming

reply brief. The trial court denied Salahuddin's motion on January 14, 2019.

On January 25, 2019, Salahuddin filed a motion requesting that the trial court

reconsider its January 14, 2019 decision denying her January 9, 2019 motion to file her

amended reply brief instanter, arguing that it both conformed to the page limitation of

Loc.R. 12.01 [sic] of the Franklin County Court of Common Pleas, General Division and was

timely filed. Wilmington timely filed a brief in opposition. On February 19, 2019, the trial

court denied Salahuddin's motion for reconsideration because the brief exceeded the seven-

page limit for reply briefs under Loc.R. 12.02, and it was untimely, having been filed five

days late. Additionally, the trial court stated it found no excusable neglect by Salahuddin.

On March 6, 2019, the trial court entered judgment on Wilmington's

complaint, its motion for default judgment, and its motion for summary judgment on its

complaint (and on Salahuddin's counterclaim), and on Salahuddin's answer and

counterclaim and her motion for summary judgment. The trial court found there were no

genuine issues of material fact and that Wilmington was entitled to summary judgment as

a matter of law. The trial court further found Salahuddin's motion for summary judgment

not well-taken. Therefore, the trial court granted Wilmington's motion for summary

judgment, denied Salahuddin's motion for summary judgment, dismissed Salahuddin's

counterclaim with prejudice, and issued a foreclosure decree.

Salahuddin timely appeals from the trial court's March 6, 2019 judgment.

II. ASSIGNMENTS OF ERROR

Salahuddin presents for our review six assignments of error.

1. The trial court erred when it granted summary judgment in

favor of appellee, where appellee failed to meet all conditions

precedent prior to initiating foreclosure.

2. Trial court erred when it granted summary judgment in favor

of appellee, as there were genuine issues of material fact,

including but not limited to, whether Wilmington Savings

Fund Society, FSB is a holder in due course, whether plaintiff

violated the Real Estate Settlement Procedures Act, the Ohio

Consumer Sales Practices Act, allocation of payments, doctrine

of unclen [sic] hands, equitable estoppel, and whether the

mortgage was properly executed.

No. 19AP-190 8

3. Trial court erred in denying appellants' [sic] motion for leave

to file instainer [sic] and granting summary judgment in favor

of appellee.

4. Trial court erred when it granted summary judgment in favor

of appellee when there is uncertainty of the accounting of

appellee.

5. Trial court erred by awarding summary judgment in favor of

the appellee when there is an uncertainty of common law fraud

prior to initiating foreclosure called into question.

6. Trial court erred when it granted summary judgment in favor

of appellee when appellee's jury trial was requested and never

waived.

III. LAW AND DISCUSSION

A. Standard of Review

The trial court resolved Wilmington's claims against Salahuddin by summary

judgment after orders were entered governing discovery between the parties.

Appellate review of summary judgment motions is de novo.

Helton v. Scioto Cty. Bd. of Commrs. (1997), 123 Ohio App. 3d

158, 162, 703 N.E.2d 841. When reviewing a trial court's

decision granting summary judgment, we conduct an

independent review of the record, and the appellate court

"stands in the shoes of the trial court." Mergenthal v. Star

Banc Corp. (1997), 122 Ohio App. 3d 100, 103, 701 N.E.2d 383.

Rose v. Ohio Dept. of Rehab. & Corr., 173 Ohio App.3d 767, 2007-Ohio-6184, ¶ 18 (10th

Dist.).

When reviewing on appeal an order granting a motion for summary

judgment, an appellate court must use the same standard of review as the trial court.

Freeman v. Brooks, 154 Ohio App.3d 371, 2003-Ohio-4814, ¶ 6 (10th Dist.), citing Maust

v. Bank One of Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992), jurisdictional

motion overruled, 66 Ohio St.3d 1488 (1993). An appellate court's review of summary

judgment disposition is independent and without deference to the trial court's

determination. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711 (4th

Dist.1993). In determining whether a trial court properly granted summary judgment, an

appellate court must review the evidence according to the standard set forth in Civ.R. 56,

No. 19AP-190 9

as well as that stated in applicable case law. Murphy v. Reynoldsburg, 65 Ohio St.3d 356

(1992); Cooper v. Red Roof Inns, Inc., 10th Dist. No. 00AP-876 (Mar. 30, 2001).

Civ.R. 56(C) requires that:

Summary judgment shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any, timely filed in the action, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.

Civ.R. 56 has been described as a means to facilitate the early assessment of the merits of

claims, to foster pre-trial dismissal of meritless claims, and to define and narrow issues for

trial. Telecom Acquisition Corp. I v. Lucic Ents., 8th Dist. No. 102119, 2016-Ohio-1466,

¶ 92. See also Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 170 (1997) (Cook, J.,

concurring in part and dissenting in part). As such, summary judgment is a procedural

device designed to promote judicial economy.

"The goal of a motion for summary judgment is to narrow the

issues in a case to determine which, if any, should go to trial.

' "The purpose of summary judgment is not to try issues of fact,

but is, rather, to determine whether triable issues of fact

exist." ' State ex rel. Anderson v. The Village of Obetz, 10th

Dist. No. 06AP-1030, 2008-Ohio-4064, ¶ 64, quoting Lakota

Local School Dist. Bd. of Edn. v. Brickner, 108 Ohio App.3d

637, 643, 671 N.E.2d 578 (1996) (citations omitted.)"

Erickson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 16AP-74, 2017-Ohio-1572, ¶ 19,

quoting Thevenin v. White Castle Mgt. Co., 10th Dist. No. 15AP-204, 2016-Ohio-1235, ¶ 45

(Brunner, J., concurring). Thus, a party seeking summary judgment on the grounds that a

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

of the basis for the motion and must identify those parts of the record which demonstrate

the absence of a genuine issue of material fact on the elements of the nonmoving party's

claims. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996).

If the moving party has satisfied its initial burden, the burden shifts to the

nonmoving party to set forth specific facts showing there is a genuine issue for trial. If the

nonmoving party does not respond, summary judgment, if otherwise appropriate, shall be

entered against the nonmoving party. Id. The nonmoving party may not rest on the mere

No. 19AP-190 10

allegations or denials of his or her pleadings but must respond with specific facts showing

there is a genuine issue for trial. Civ.R. 56(E); Dresher at 293; see also Erickson at ¶ 19-20.

More specifically, under our standard of review of Civ.R. 56(C) motions for

summary judgment, a plaintiff moving for summary judgment on a note secured by a

mortgage must present Civ.R. 56 evidence establishing (1) the movant is the holder of the

note and mortgage, or is a party entitled to enforce the instruments, (2) if the movant is not

the original note holder and/or mortgagee, an unbroken chain of assignments and transfers,

(3) all conditions precedent have been met, (4) the grantor of the note and mortgagor is in

default, and (5) the amount of principal and interest due. U.S. Bank Natl. Assn. v. Lewis,

10th Dist. No. 18AP-550, 2019-Ohio-3014, ¶ 23, citing Wachovia Bank of Delaware, N.A. v.

Jackson, 5th Dist. No. 2010-CA-00291, 2011-Ohio- 3203, ¶ 40-45. See also U.S. Bank Natl.

Assn. v. George, 10th Dist. No. 14AP-817, 2015-Ohio-4957, ¶ 10-13 .

B. Assignments of Error

1. First Assignment of Error

For her first assignment of error, Salahuddin argues the trial court erred in

granting Wilmington's motion for summary judgment because there remained a genuine

issue of material fact as to whether Wilmington met all conditions precedent prior to

initiating the foreclosure action.

Part 203, Title 24 of the Federal Code of Regulations contains the regulations

applicable to federally insured mortgages for single-family mortgage insurance. As relevant

here, Salahuddin asserts Wilmington failed to demonstrate through its Civ.R. 56 evidentiary

quality materials that it satisfied the conditions precedent contained in both 24 C.F.R.

203.602 and 203.604.

Although Salahuddin construes compliance with the Department of Housing

and Urban Development ("HUD") regulations as conditions precedent, appellate districts

in Ohio are split on whether certain provisions in Part 203, Title 24, C.F.R., constitute

conditions precedent to bringing a foreclosure action or whether they constitute affirmative

defenses. See U.S. Bank Natl. Assn. v. Cavanaugh, 10th Dist. No. 18AP-358, 2018-Ohio-

5365, ¶ 15-18, 35 (noting Ohio courts of appeals differ over whether 24 C.F.R. 203.604(b)

operates as a condition precedent or an affirmative defense; a condition precedent would

place the initial burden of demonstrating compliance with 24 C.F.R. 203.604(b) on the

party moving for summary judgment, while an affirmative defense would place the burden

No. 19AP-190 11

on the party opposing summary judgment to raise the affirmative defense and come

forward with evidence demonstrating a dispute of fact). Here, because Salahuddin also

raised Wilmington's alleged failure to comply with the HUD regulations as a defense, the

issue is whether Wilmington satisfied its evidentiary burden on summary judgment

demonstrating there remained no genuine issue of material fact as to whether it complied

with 24 C.F.R. 203.602 and 203.604(b).

First, we examine whether Wilmington as the moving party demonstrated

there remains no genuine issue of material fact about its compliance with 24 C.F.R. 203.602

relating to the delinquency notice precedent to following the provisions in 24 C.F.R.

203.604(b) for the required face-to-face contact with the mortgagor.5

5 24 C.F.R. 203.604 provides:

Contact with the mortgagor.

(a) [Reserved]

(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 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.

(c) A face-to-face meeting is not required if:

(1) The mortgagor does not reside in the mortgaged property,

(2) The mortgaged property is not within 200 miles of the mortgagee, its

servicer, or a branch office of either,

(3) The mortgagor has clearly indicated that he will not cooperate in the

interview,

(4) A repayment plan consistent with the mortgagor's circumstances is

entered into to bring the mortgagor's account current thus making a

meeting unnecessary, and payments thereunder are current, or

(5) A reasonable effort to arrange a meeting is unsuccessful.

(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

No. 19AP-190 12

In her memorandum in opposition to Wilmington's motion for summary

judgment, Salahuddin argued that none of the default letters sent by Wilmington or its

predecessors in interest complied with 24 C.F.R. 203.602. Specifically, Salahuddin argued

that 24 C.F.R. 203.602 requires the notice of default to be "on a form supplied by [HUD] or,

if the mortgagee wishes to use its own form, on a form approved by [HUD]." Salahuddin

provided documents to the trial court outlining what HUD requires in a notice to satisfy 24

C.F.R. 203.602, including the information that must be included in the cover letter and an

accompanying brochure. Salahuddin maintained throughout the proceedings that she

never received a letter satisfying these requirements and that there was no indication that

the letters from Wilmington or its predecessors in interest were in a form approved by

HUD.

In its response to Salahuddin's memorandum in opposition, Wilmington

made a blanket assertion that the January 28, 2013 letter from Chase, its predecessor in

interest, to Salahuddin satisfied the HUD requirements. Wilmington did not provide

either, or it is known that the mortgagor is not residing in the mortgaged

property.

(e)

(1) For mortgages insured pursuant to section 248 of the National Housing

Act, the provisions of paragraphs (b), (c) and (d) of this section are

applicable, except that a face-to-face meeting with the mortgagor is

required, and a reasonable effort to arrange such a meeting shall include at

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

notwithstanding that such property is more than 200 miles from the

mortgagee, its servicer, or a branch office of either. In addition, the

mortgagee must document that it has made at least one telephone call to the

mortgagor for the purpose of trying to arrange a face-to-face interview. The

mortgagee may appoint an agent to perform its responsibilities under this

paragraph.

(2) The mortgagee must also:

(i) Inform the mortgagor that HUD will make information regarding the

status and payment history of the mortgagor's loan available to local credit

bureaus and prospective creditors;

(ii) Inform the mortgagor of other available assistance, if any;

(iii) Inform the mortgagor of the names and addresses of HUD officials to

whom further communications may be addressed.

No. 19AP-190 13

testimony in any affidavit averring that any of the default letters were on a form supplied by

HUD or on a form approved by HUD.6

The Ninth District Court of Appeals has considered an argument similar to

Salahuddin's in defending against summary judgment when a mortgagee did not respond

with Civ.R. 56(C) evidentiary quality material that it had complied with 24 C.F.R. 203.602,

leaving unsettled a genuine issue of material fact on a motion for summary judgment. In

Lakeview Loan Servicing, LLC v. Dancy, 9th Dist. No. 27889, 2016-Ohio-7106, the Ninth

District concluded that a mortgagee did not satisfy its burden under Civ.R. 56 when the

borrower argued that the delinquency letter was lacking several mandatory components and

supported his assertion by attaching a HUD memorandum setting forth the minimum

requirements that must be in the written notification of delinquency. When the movant/

mortgagee did not respond by demonstrating that the default letter was on a form supplied

by HUD or on a form approved by HUD, the Ninth District concluded it was improper for

the trial court to grant summary judgment in favor of the mortgagee. Lakeview Loan

Servicing, LLC at ¶ 16-18.

The reasoning of the Ninth District in Lakeview Loan Servicing, LLC is

compelling and applies to the facts of the matter before us. Although Wilmington and its

predecessors in interest sent several letters to Salahuddin over a number of years intended

to notify her that she was in default, including the January 28, 2013 letter from Chase and

the February 23, 2016 letter from Shellpoint Mortgage Servicing, Wilmington did not

respond with Civ.R. 56 materials establishing that any of these letters satisfied all the HUD

requirements for adequate delinquency notice under 24 C.F.R. 203.602. We conclude that

Wilmington has not satisfied its burden under Civ.R. 56 to dispel all genuine issues of

material fact to entitle it to summary judgment. More specifically, Wilmington has not

provided to the trial court Civ.R. 56(C) evidentiary quality material to settle as a matter of

law whether it or any of its predecessors in interest provided written notification of

delinquency to Salahuddin in the manner required by 24 C.F.R. 203.602.

6 Wilmington also did not respond to or provide compliance evidence in response to Salahuddin's argument

that HUD requires a specific publication, the HUD-PA-426 brochure, How to Avoid Foreclosure,

https://www.hud.gov/sites/documents/22775_PA426H.PDF (accessed Dec. 28, 2020), to accompany any

default letter sent before January 10, 2014 in order to satisfy 24 C.F.R. 203.602; and for a default letter sent

after January 10, 2014, an updated publication, the HUD-2008-5-FHA brochure, Save Your Home: Tips to

Avoid Foreclosure, https://www.hud.gov/sites/documents/2008-5FHA.PDF (accessed Dec. 28, 2020).

No. 19AP-190 14

Salahuddin also argues Wilmington failed to comply with the face-to-face

meeting requirement of 24 C.F.R. 203.604. Salahuddin challenges factual elements of

Surowiec's supplemental affidavit, specifically the averments concerning the purported

visit of a representative to her home.

The plain language of 24 C.F.R. 203.604 provides that a face-to-face meeting

is not required if "[t]he mortgaged property is not within 200 miles of the mortgagee, its

servicer, or a branch office of either." 24 C.F.R. 203.604(c)(2). The Surowiec affidavit

contained an averment that neither Wilmington nor the servicer AMIP has an office or

branch within 200 miles of the mortgaged property. Salahuddin provided no evidence to

create a material issue of fact as to Wilmington's averment by affidavit on this fact. Thus,

the trial court correctly considered this exception in disregarding Salahuddin's arguments

about lack of compliance by Wilmington with 24 C.F.R. 203.604(b) that requires a face-to-

face meeting with the mortgagor. Wilmington has factually established that is not required

to make reasonable efforts to arrange a face-to-face meeting under 24 C.F.R. 203.604.

For the foregoing reasons, Salahuddin's first assignment of error is sustained

in part and overruled in part.

2. Second, Fourth, and Fifth Assignments of Error

In her second assignment of error, Salahuddin argues the trial court erred in

granting summary judgment to Wilmington on the additional defenses and claims

Salahuddin asserted in her October 22, 2018 combined memorandum in opposition to

Wilmington's motion for summary judgment and her separate cross-motion for summary

judgment. We simultaneously address Salahuddin's fourth and fifth assignments of error,

in that many of the issues raised in these assignments of error are subsumed in our analysis

of her second assignment of error.

In her fourth assignment of error, Salahuddin argues the trial court erred in

granting summary judgment to Wilmington despite her argument that there remains

uncertainty as to the accounting of the amount owed. Similarly, in her fifth assignment of

error, Salahuddin argues the trial court erred in granting summary judgment despite her

argument that there remains a genuine issue of material fact with respect to her claim of

common law fraud.

No. 19AP-190 15

Despite the wording of her second assignment of error, Salahuddin's

arguments in her appellate brief are limited to her argument that there remain genuine

issues of material fact related to whether Wilmington violated RESPA as codified at 12

U.S.C. 2601, whether Wilmington violated the TILA as codified at 15 U.S.C. 1601, and

whether Wilmington or any of its predecessors in interest committed common law fraud.

The trial court considered and rejected Salahuddin's arguments and entered

judgment in favor of Wilmington on Salahuddin's additional defenses. We review the trial

court's determination as to each of those defenses, limiting our analysis to only those

arguments Salahuddin addresses in the body of her appellate brief, pursuant to App.R.

12(A)(2). Taneff v. Lipka, 10th Dist. No. 18AP-291, 2019-Ohio-887, ¶ 30 (noting "[a]n

appellate court has discretion to disregard an assignment of error presented for review if

the party raising it 'fails to argue the assignment separately in the brief, as required under

App.R. 16(A)' "), quoting App.R. 12(A), citing State v. Brown, 10th Dist. No. 16AP-753, 2017-

Ohio-7134, ¶ 14 (declining to address part of an assignment of error not argued separately

in the body of the brief).

Salahuddin's alleged RESPA violation has a statute of limitations of three

years from the date of the alleged violation. 12 U.S.C. 2605; 12 U.S.C. 2614; Wells Fargo

Bank, N.A. v. Sessley, 188 Ohio App.3d 213, 2010-Ohio-2902, ¶ 24 (10th Dist.) (noting the

three-year statute of limitations applicable to RESPA claims under 12 U.S.C. 2605).

Because Salahuddin alleged Wilmington's predecessor in interest failed to respond to her

July 2012 and January 2014 qualified written requests, the statute of limitations for those

RESPA claims would have run by July 2015 and January 2017, respectively. Salahuddin

did not file her RESPA counterclaim until February 12, 2018, outside the three-year statute

of limitations for either one of the alleged violations.

As to Salahuddin's alleged TILA violation, Salahuddin relies on the same

alleged failure of Wilmington's predecessors in interest to respond to her request for

information for the qualified written requests. A claim alleging a violation of TILA pursuant

to 15 U.S.C. 1641(f)(2) has a statute of limitations of one year. Sessley at ¶ 24, citing 15

U.S.C. 1640(e).

No. 19AP-190 16

Summary judgment is warranted in favor of Wilmington on Salahuddin's

RESPA and TILA claims, because, even if those statutes apply, her claims are barred by the

statute of limitations.

Salahuddin's last argument under her second assignment of error is that she

presented sufficient evidence of fraud to overcome Wilmington's motion for summary

judgment. Specifically, Salahuddin asserts she demonstrated that, from January 2010 to

December 2012, she submitted a total of $5,934.96 in overpayment of her monthly mortgage

payments but that Wilmington or its predecessors in interest did not credit her principal

balance with those payments.

Civ.R. 56(C) requires, "[s]ummary judgment shall be rendered forthwith if

the pleadings, depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,

show that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law." (Emphasis added.)

Salahuddin's counterclaim states only a RESPA claim ("FIRST COUNT:

RESPA"); no other count is set forth. Additionally, the counterclaim does not allege

fraudulent intent on the part of Wilmington. A plaintiff cannot prevail on a claim that is

not pled. See Morrison v. Skestos, 10th Dist. No. 04AP-244, 2004-Ohio-6985, ¶ 15-18

(finding that the trial court did not err in dismissing claims purportedly based on fraud

where the plaintiff failed to plead that claim with particularity pursuant to Civ.R. 9(B));

Sutton Funding, LLC v. Herres, 188 Ohio App.3d 686, 2010-Ohio-3645, ¶ 53-54 (2d Dist.)

(finding the trial court properly dismissed a counterclaim where the claimant failed to state

a claim for fraud under Civ.R. 9(B)); Hanick v. Ferrara, 7th Dist. No. 19 MA 0074, 2020-

Ohio-5019, ¶ 125 ("[W]here a plaintiff must plead the fraud claim with particularity, a broad

reference to the prior seven pages of the complaint (some of which contain the negligent

misrepresentation allegations) will not satisfy the Civ.R. 9(B) obligation. The court is not

required to comb the factual recitations for arguable fraud claims.").

Even assuming Salahuddin's counterclaim stated a fraud claim, we find that

she did not meet her burden of proof in responding to Wilmington's summary judgment

motion or in identifying specific parts of the evidentiary record that show a genuine issue

of material fact regarding a claim of "fraud." Also, as we previously observed, her pleading

No. 19AP-190 17

does not say anything about Wilmington's intent. Additionally, Salahuddin's

contemporaneously filed affidavit does not address most aspects of her answer or

counterclaim, stating only that she made payments totaling $75.040.48, including

payments of "Taxes, Insurance, etc." That in itself does not state fraud, with or without the

required particularity.

Viewing the evidence in the record in a light most favorable to Salahuddin,

we conclude that Salahuddin's claim of common law fraud is not supported. She neither

pled a claim of fraud nor submitted sufficient evidence supporting a claim of fraud. We

conclude the trial court did not err in granting summary judgment in favor of Wilmington

on Salahuddin's claim of common law fraud. Consequently, we overrule Salahuddin's

second assignment of error.

In her fourth assignment of error, Salahuddin contends the trial court erred

in granting summary judgment to Wilmington despite Salahuddin's argument that there

remains uncertainty of the amount she owed under the loan. Similarly, Salahuddin asserts

in the fifth assignment of error that the trial court erred in granting summary judgment on

her claim of common law fraud. Salahuddin's arguments under her fourth and fifth

assignments of error both rely on her assertion that she submitted overpayments on her

monthly mortgage payments totaling $5,934.96 from January 2010 to December 2012, but

neither Wilmington nor its predecessors in interest credited those payments toward the

principal amount she owed. However, as we observed with respect to Salahuddin's second

assignment of error, despite Salahuddin arguing her overpayment in her answer and

counterclaim and her motion for summary judgment, she did not submit to the trial court

sufficient evidence demonstrating she actually made these payments. Moreover,

Salahuddin also did not address her alleged overpayment or her common law fraud claim

in the affidavit she submitted in support of her motion for summary judgment. By contrast,

Wilmington provided the payment history listing the record of payments received on

Salahuddin's account. The documents Wilmington submitted show a principal balance of

$124,902.53 plus interest at the rate of 6.25 percent per annum from November 1, 2012.

Salahuddin maintains this amount is inaccurate, but she provides no documentation

establishing the excess payments she claims to have made.

No. 19AP-190 18

Reviewing the evidence in a light most favorable to Salahuddin, we conclude

there remains no genuine issue of material fact as to the amount Salahuddin owes under

the loan. Accordingly, the trial court did not err in granting summary judgment in favor of

Wilmington on Salahuddin's claim of common law fraud.

For the foregoing reasons, Salahuddin's fourth and fifth assignments of error

are overruled.

3. Third Assignment of Error

In her third assignment of error, Salahuddin argues the trial court erred when

it denied her motion for reconsideration to file her reply brief. The trial court acknowledged

that, with respect to the page limitation on reply briefs, its December 28, 2018 entry

erroneously cited Loc.R. 12.01 rather than Loc.R. 12.02 of the Franklin County Court of

Common Pleas, General Division. The trial court observed, however, that its December 28,

2018 entry "also clearly states that the previously non-conforming reply brief filed 'exceeds

the page limitation for a reply brief . . . by more than sixteen pages. . .' and notes that

[Salahuddin] filed a 23-plus page brief. The Court is not persuaded that [Salahuddin]

believed she could file a 15-page reply brief under these circumstances." (Feb. 19, 2019

Decision and Entry at 2.) Additionally, the trial court stated that, under Ohio law,

Salahuddin, who was acting pro se, was bound by the same rules and procedures as litigants

who retain counsel. Lias v. Beekman, 10th Dist. No. 06AP-1134, 2007-Ohio-5737, ¶ 7. The

trial court concluded, therefore, "that [Salahuddin] knows the Rules applicable to her

filings." (Feb. 19, 2019 Decision and Entry at 2.)

The trial court further explained that it had not denied Salahuddin's motion

for leave to file her reply, instanter, solely because it exceeded the applicable page limit

under Loc.R. 12. Rather, the trial court's December 28, 2018 order clearly stated that

Salahuddin could file a conforming amended reply brief within seven days from the date of

the order; that is, not later than January 4, 2019. Salahuddin admits she received notice of

that order from the trial court's e-filing system on January 3, 2019. Consequently, as the

trial court noted in its decision, Salahuddin could have timely filed an amended reply brief

on that day or the next (January 4, 2019) and complied with the trial court's orders in its

December 28, 2018 Decision and Entry. The trial court further noted that Salahuddin had

not made any argument of excusable neglect, other than to state she did not receive notice

until January 3, 2019. Under the circumstances, the trial court found no excusable neglect

No. 19AP-190 19

on Salahuddin's part, because Salahuddin did not assert it or provide an explanation

amounting to it.

It is undisputed that the trial court posted the order granting Salahuddin

leave to file a reply to the electronic docket on December 28, 2018, which would have

generated an email to Salahuddin's supplied email address notifying her of the same.

Salahuddin's claim at oral argument concerning her ability to check her email is not a

sufficient defense to not complying with the trial court's time limits for filing.

We overrule Salahuddin's third assignment of error.

4. Sixth Assignment of Error

Salahuddin argues in her sixth and final assignment of error that the trial

court erred when it granted summary judgment to Wilmington despite her request for a jury

trial. That a party defending against summary judgment requested a jury trial is not a

defense, taken by itself, that defeats summary judgment.

We overrule Salahuddin's sixth assignment of error.

IV. CONCLUSION

Having independently examined the record, considered the briefs and

arguments of the parties, and reviewed the evidence in a light most favorable to Salahuddin,

we sustain in part and overrule in part Salahuddin's first assignment of error. Additionally,

we overrule her second, third, fourth, fifth, and sixth assignments of error. Accordingly,

the decision of the Franklin County Court of Common Pleas is affirmed in part and reversed

in part, and the matter is remanded to the trial court for further proceedings consistent

with this decision regarding Wilmington's satisfaction of the requirements in 24 C.F.R.

203.602.

Judgment affirmed in part and reversed in part;

remanded to the trial court for further proceedings.

LUPER SCHUSTER and NELSON, JJ., concur.