COURT OF APPEALS

TENTH APPELLATE DISTRICT

FRANKLIN COUNTY, OHIO

EVERHOME MORTGAGE COMPANY, :

: Appeal No. 07 AP 615
Plaintiff-Appellee, :
: (Regular Calendar)
v. :
: Appeal from the Franklin County
SARA E. ROWLAND, et al., : Common Pleas Court
:
Defendants-Appellees, : Case No. 07 CV 005165
:
(GREGORY E. VIGNON, :
:
Defendant-Appellant.) :

BRIEF OF DEFENDANT-APPELLANT,
GREGORY E. VIGNON

Richard J. Lacivita (0072368) Adam R. Todd (0077284)

SHAPIRO & FELTY, LLP DINSMORE & SHOHL LLP
1500 W. Third St., Suite 400 175 South Third Street, 10th Floor
Cleveland, OH 44113 Columbus, Ohio 43215
Telephone: (216) 621 - 1530 Telephone: (614) 628-6880
Facsimile: (216) 621 - 7646 Facsimile: (614) 628-6890
E-mail: adam.todd@dinslaw.com

Attorney for Plaintiff-Appellee Attorney for Defendant-Appellant,

Everhome Mortgage Company Gregory E. Vignon
 TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………………………………..i

TABLE OF AUTHORITIES…………………………………………………………………….....ii

ASSIGNMENT OF ERROR PRESENTED FOR REVIEW…………………………………..……iii

ISSUES PRESENTED FOR REVIEW…………………………………………………………......iv

STATEMENT OF THE CASE………………………………………………………………………1

STATEMENT OF FACTS…………………………………………………………………………..1

LAW AND ARGUMENT………………………………………………………………………......2

CONCLUSION………………………………………………………………………………………6

CERTIFICATE OF SERVICE……………………………………………………………………….8

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 TABLE OF AUTHORITIES
Cases:

Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704……..…………..……….……….2

First Union Nat'l. Bank v. Hufford (2001), 146 Ohio App.3d 673……………………………………3

Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102……………………………………….……...2

Kramer v. Millott (Sept. 23, 1994), 6th Dist. No. E-94-5, 1994 WL 518173…………………………3

Lexford Prop. Mgt., LLC v. Lexford Prop. Mgt., Inc. (2001), 147 Ohio App.3d 312………………5

Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45……………………………………………….3

Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2………………………………………….…..3

State ex rel. Corrigan v. Seminatore (1981), 66 Ohio St.2d 459……………………………………4

State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447………………………………….3

Washington Mut. Bank v. Mahaffey (2003), 154 Ohio App.3d 44…………………………………5, 6

Washington Mut. Bank, F.A. v. Green (2004), 156 Ohio App.3d 461………………………………3

Civil Rules:

Ohio Rule of Civil Procedure 56..…………………………………………………………………..3

Statutes:

24 C.F.R. 203.604(b)………………………………………………………………………………5, 6

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 ASSIGNMENT OF ERROR PRESENTED FOR REVIEW

Defendant-Appellant’s Assignment of Error:The trial court erred as a matter of law in granting

summary judgment in favor of Plaintiff-Appellee and against Defendant-Appellant in the Final

Judgment Entry in Foreclosure filed June 29, 2007.

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 ISSUES PRESENTED FOR REVIEW

Issues Related to Defendant-Appellant's Sole Assignment of Error

1. Genuine issues of material fact existed because Plaintiff-Appellee did not show that it

is the owner or holder of the note and mortgage it sought to foreclose and the amount owed on said

note and mortgage was contested by the affidavit of Defendant-Appellant.

2. Plaintiff-Appellee was not entitled to judgment as a matter of law as it failed to

conduct a face-to-face interview with Defendant-Appellant as required by 24 C.F.R. 203.604(b).

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 STATEMENT OF THE CASE

Plaintiff-Appellee, Everhome Mortgage Company (hereinafter "Plaintiff"), filed this

foreclosure action against Defendant-Appellant, Gregory Vignon (hereinafter "Vignon"), Sara

Rowland, a co-maker of the note at issue and the former spouse of Vignon, and other defendants

having an interest in the property. Defendant Rowland did not answer Plaintiff's Complaint. Other

lienholder defendants filed answers setting forth their respective interests in the property.

Vignon timely answered Plaintiff's Complaint. Plaintiff moved for summary judgment ten

days after Vignon served his Answer. The trial court granted Plaintiff's Motion for Summary

Judgment.

STATEMENT OF FACTS

On or about April 24, 2003, Vignon and his former wife, Sara Rowland, signed a note and

mortgage (hereinafter, the "Note" and "Mortgage") to secure a loan for the purchase of residential

real property located at 382 Kestrel Avenue, Blacklick, Ohio 43004. (Aff. Vignon, ¶ 2; see also

Exhibits A and B to Plaintiff's Motion for Summary Judgment.) The Note and Mortgage were

executed in favor of TrustCorp Mortgage Company. (Aff. Vignon, ¶ 2; see also Exhibits A and B to

Plaintiff's Motion for Summary Judgment.) At no time did Vignon sign any agreement, assignment,

note or mortgage in favor of Plaintiff. (Aff. Vignon, ¶ 2.)

Plaintiff filed its Complaint in foreclosure on April 16, 2007 alleging that it was the owner

and holder of a promissory note of which Vignon and Rowland were in default. (Plaintiff's

Complaint, ¶ 1.) Plaintiff did not attach a copy of any note, mortgage or assignment thereof to its

Complaint. (See, generally, Plaintiff's Complaint.)

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 Plaintiff did not conduct a face-to-face interview with Vignon as required by 24 C.F.R.

203.604(b). (Aff. Vignon, ¶ 3.) Neither Plaintiff nor any representative of Plaintiff contacted

Vignon regarding such an interview. (Aff. Vignon, ¶ 3.)

Vignon filed his Answer on June 4, 2007, denying each and every allegation contained in

Plaintiff's Complaint. (See, generally, Answer.) Plaintiff filed its Motion for Summary Judgment

just ten days later, on June 14, 2007, before any discovery was exchanged. Vignon timely filed a

Memorandum Contra thereto on June 27, 2007, stating three concise reasons why summary

judgment was inappropriate. (See, generally, Memorandum Contra of Defendant Vignon.)

Nevertheless, Plaintiff submitted a proposed final judgment entry in foreclosure to the trial court

which included lines for the signatures of all other counsel. On the line for Vignon's counsel,

Plaintiff's counsel stamped the words, "circulating for approval." (See Final Judgment Entry.) The

trial court approved Plaintiff's proposed Order on June 28, 2007, the day after Vignon filed his

Memorandum Contra and the day before he filed an affidavit contesting the facts alleged in

Plaintiff's Motion for Summary Judgment. (See Final Judgment Entry.) The final judgment entry

was filed on June 29, 2007. (See Final Judgment Entry.)

LAW AND ARGUMENT

A. Standard of Review.

Appellate courts consider an appeal from summary judgment under a de novo standard of

review. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. A de novo review requires an

independent review of the trial court's decision without any deference to the trial court's

determination. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. Thus, this

Court applies the same standard as the trial court, viewing the facts in the case in the light most

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favorable to the non-moving party. Civ.R. 56(C); Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d

1, 2.

B. Summary Judgment Was Inappropriate As Genuine Issues of Material Fact Exist.

Summary judgment is inappropriate when there is a genuine issue of material fact. "It is

axiomatic that a motion for summary judgment may only be granted where there exists no genuine

issue as to any material fact . . ." Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45. Civ.R.

56(E) provides that after the moving party has satisfied its burden of supporting its motion for

summary judgment, the non-moving party may overcome summary judgment by demonstrating that

a genuine issue exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio

St.3d 447, 449.

Summary judgment was not appropriate in the instant case. The following material facts

were disputed:

(1) Whether Plaintiff is the owner or holder of the Note and Mortgage at issue; and

(2) The amount owed on the Note.

The trial court improperly granted Plaintiff's Motion for Summary Judgment.

1. Plaintiff Did Not Establish that it is the Holder of the Note and Mortgage.

Summary judgment is inappropriate where a Plaintiff in foreclosure fails to establish that it is

the real party in interest because the note and mortgage were originally issued to a different holder.

Washington Mut. Bank, F.A. v. Green (2004), 156 Ohio App.3d 461. In Green, the Seventh District

Court of Appeals reversed the trial court's grant of summary judgment because the plaintiff failed to

prove it was the owner or holder of the mortgage at issue despite its presentation of an affidavit

stating the same. Id. at 467. See also First Union Nat'l. Bank v. Hufford (2001), 146 Ohio App.3d

673 and Kramer v. Millott (Sept. 23, 1994), 6th Dist. No. E-94-5, 1994 WL 518173 (both holding

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summary judgment was inappropriate where the plaintiff in foreclosure had not shown it was the

owner or holder of the mortgage at issue).

Vignon signed the Note and Mortgage in favor of TrustCorp Mortgage Company. (Aff.

Vignon, ¶ 2; see also Exhibits A and B to Plaintiff's Motion for Summary Judgment.) Nowhere in

Plaintiff's Motion or the affidavit in support thereof did Plaintiff set forth how it became the holder

and/or owner of the Note and Mortgage at issue. Vignon did not concede in his Answer, by

stipulation, or otherwise that Plaintiff is the holder/owner. (See, generally, Defendant's Answer, ¶

1.) The address listed for TrustCorp Mortgage Company on the Note and Mortgage is not the same

address used by Plaintiff. (See Plaintiff's Complaint and Exhibits A and B to Plaintiff's Motion for

Summary Judgment.) Plaintiff did not allege that it was affiliated in any way with TrustCorp

Mortgage Company, and it presented no assignment of mortgage to the trial court. Plaintiff did not

establish that it has any right to foreclose on the note or mortgage it attached to its Motion for

Summary Judgment. Plaintiff's mere allegations were wholly insufficient to obtain a judgment

against Vignon. Plaintiff did not show that it is the real party in interest. A genuine issue of material

fact existed which precluded the grant of summary judgment in favor of Plaintiff.

2. There is a Discrepancy as to the Amount Due on the Note.

"Unless controverted by other evidence, a specific averment that an affidavit pertaining to

business * * * is made upon personal knowledge of the affiant * * * satisfies the Civ.R. 56(E)

requirement that affidavits supporting and opposing motions for summary judgment show that the

affiant is competent to testify to the matters stated." State ex rel. Corrigan v. Seminatore (1981), 66

Ohio St.2d 459, at paragraph two of the syllabus. Where an affidavit is contested, however, the

movant's burden is not satisfied. Id.

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 Even if Plaintiff had proved that it is the holder or owner of the Note and Mortgage at issue,

the amount due on the Note was contested by Vignon's affidavit. (Aff. Vignon, ¶ 4.) Attached to

Plaintiff's Motion for Summary Judgment and Affidavit in support thereof were computer printouts

which purport to show the amount owed. (See Exhibits to Plaintiff's Motion for Summary

Judgment.) Plaintiff's calculations were inaccurate. (Aff. Vignon, ¶ 4.) The first page of the

attachments shows the balance on the note to be $143,830.83 as of November 7, 2006. Despite

payments made, escrow disbursements, and the passage of more than seven months, Plaintiff asserts

that the outstanding balance is still $143,830.83. (See Plaintiff's Motion for Summary Judgment and

Affidavit and support of same.) Vignon disputed the amount owed. (Aff. Vignon, ¶ 4.) Because

genuine issues of material fact existed, summary judgment was inappropriate.

C. Summary Judgment Was Inappropriate Because Plaintiff Was Not Entitled to Judgment as a
Matter of Law as it Failed to Conduct a Face-to-Face Interview as Required by the Code of
Federal Regulations.

Civ.R. 56 places upon the moving party the initial burden of setting forth specific facts that

demonstrate no issue of material fact exists and that it is entitled to judgment as a matter of law. If

the movant fails to meet this burden, summary judgment is not appropriate. Lexford Prop. Mgt.,

LLC v. Lexford Prop. Mgt., Inc. (2001),147 Ohio App.3d 312, 316. In the case before the Court,

Plaintiff was not entitled to judgment as a matter of law. Thus, summary judgment was not

appropriate.

The law required Plaintiff to conduct an interview with Vignon, which Plaintiff did not do.

The Code of Federal Regulations provides:

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

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 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). A mortgagee is therefore required, subject to certain exceptions, to have a

face-to-face interview, or make a reasonable effort to arrange an interview, with the mortgagor

before bringing a foreclosure action on a federally-insured mortgage loan, and is urged to have the

interview within the first three months of default. Washington Mut. Bank v. Mahaffey (2003), 154

Ohio App.3d 44. In the Mahaffey case, the Second District Court of Appeals overturned the grant of

summary judgment in favor of the plaintiff mortgagee because the plaintiff failed to prove it

complied with 24 C.F.R. 203.604(b). Id. at 51. The Court held:

The evidentiary materials submitted by the bank in support of its motion for
summary judgment fail to establish, as a matter of law, that the bank satisfied the
minimal requirements for a "reasonable effort" to arrange a face-to-face interview
with the mortgagor, required by Section 203.604. Accordingly, there is a genuine
issue of material fact, the bank failed to establish that it is entitled to judgment as a
matter of law, and the trial court erred by awarding summary judgment.

Id.

The Note at issue herein is a federally-insured mortgage loan. (See Exhibit A to Plaintiff's

Motion for Summary Judgment, p. 1 which reads, "Multistate FHA Fixed Rate Note.") Because the

Note is insured by the Federal Housing Administration, Plaintiff was required to conduct, or make a

reasonable effort to arrange, a face-to-face interview with Vignon prior to filing its foreclosure

complaint. Plaintiff did not conduct such an interview and made no reasonable attempt to do so.

(See Aff. Vignon.) Indeed, Plaintiff's Motion for Summary Judgment and the affidavit in support

thereof was devoid of any mention of such a face-to-face interview or a statement explaining why it

is excused from compliance with 24 C.F.R. 203.604(b). Plaintiff was not entitled to judgment as a

matter of law as it did not conduct an interview as required by 24 C.F.R. 203.604(b). The trial

court's grant of summary judgment was therefore inappropriate.

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 CONCLUSION

Genuine issues of material fact existed, precluding the grant of summary judgment. Plaintiff

did not show that it is the owner/holder of the Note and Mortgage which it sought to foreclose.

Moreover, the amount due on the Note was contested by Vignon's affidavit. The trial court

improperly granted summary judgment in favor of Plaintiff.

Even if no genuine issue of material fact existed, Plaintiff was not entitled to judgment as a

matter of law because it did not comply with 24 C.F.R. 203.604(b) which requires a face-to-face

interview with a mortgagor prior to filing a foreclosure action. Summary judgment in favor of

Plaintiff was therefore inappropriate.

FOR THE FOREGOING REASONS, this Court should vacate the trial court's award of

summary judgment in favor of Plaintiff and remand this proceeding to the trial court.

Respectfully submitted,

____________________________________
Adam R. Todd (0077284)
DINSMORE & SHOHL LLP
175 S. Third Street, 10th Floor
Columbus, Ohio 43215
Telephone: (614) 628-6880
Facsimile: (614) 628-6890
E-mail: adam.todd@dinslaw.com
Attorney for Defendant-Appellant,
Gregory E. Vignon

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 CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and accurate copy of foregoing instrument
was served via ordinary U.S. mail, postage prepaid, this 31st day of August, 2007, upon the
following:

Richard J. Lacivita, Esq.

Shapiro & Felty, LLP
1500 W. Third St., Suite 400
Cleveland, OH 44113
Attorney for Plaintiff-Appellee

Adria P. Fields, Esq.

Assistant Franklin County Prosecuting Attorney/Tax Division
373 S. High St., 17th Floor
Columbus, OH 43215
Attorney for Richard Cordray,
as Treasurer of Franklin County, Ohio

David W. Cliffe, Esq.

Weltman, Weinberg & Reis Co., L.P.A.
525 Vine Street
Suite 800
Cincinnati, OH 45202
Attorney for Defendant, Huntington National Bank

Brett R. Sheraw, Esq.

Fisher, Skrobot & Sheraw
471 East Broad Street, Ste 1810
Columbus, OH 43215
Attorney for Defendant, Guardian Finance Company

Christopher R. Yates, Esq.

303 Marconi Blvd, 2nd Floor
Columbus, Ohio 43215
Attorney for Defendant, United States of America

Sara Rowland
2393 Rufus Court
Lewis Center, Ohio, 43035
Defendant

____________________________________
Adam R. Todd (0077284)

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