RBS Citizens, NA v. Sharp , 2015 Ohio 5438 ( 2015 )

[Cite as RBS Citizens, NA v. Sharp, 2015-Ohio-5438.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
RBS CITIZENS, NA ) CASE NO. 13 MA 11
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
MARY KAY SHARP, et al. )
)
DEFENDANTS-APPELLANTS )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 11 CV 2646
JUDGMENT: Affirmed in part. Reversed in part.
Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Phillip Barragate
Atty. Ashlyn Heider
Shapiro, Van Ess, Phillips
& Barragate LLP
4805 Montgomery Rd., Suite 320
Norwood, Ohio 45212
For Defendants-Appellants: Atty. Bruce M. Broyles
5815 Market Street, Suite 2
Boardman, Ohio 44512
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 16, 2015
[Cite as RBS Citizens, NA v. Sharp, 2015-Ohio-5438.]
WAITE, J.
{¶1} In this foreclosure action, Appellants Mary Kay and James E. Sharp
appeal a January 9, 2013 Mahoning County Common Pleas Court judgment in favor
of Appellee RBS Citizens, NA. Appellants argue in their first two assignments of
error that Appellee failed to comply with the requirements of C.R.F. §203.604(d) by
failing to provide proper notice of their right to participate in a face-to-face meeting.
Appellants also claim that the trial court erred in finding that Appellee complied with
the loss-mitigation provisions of the mortgage.
{¶2} For the reasons provided, Appellants’ first two assignments of error
have merit and the matter is remanded on this basis. However, Appellant’s third
assignment of error is without merit and the judgment of the trial court is affirmed as
to that issue.
Factual and Procedural History
{¶3} On January 13, 2010, Appellants executed a note and mortgage with
Appellee in the amount of $90,333. The loan was secured by a General National
Mortgage Loan (“Ginnie Mae”) and was subject to the regulations of the U.S.
Department of Housing and Urban Development (“HUD”). In March of 2010,
Appellant James Sharp was laid off from his job and developed certain medical
conditions that required surgery. On April 1, 2010, Appellants defaulted on the loan.
Both parties discussed loss mitigation options for approximately fifteen months after
default before Appellee filed its foreclosure complaint on August 9, 2011.
{¶4} Appellee filed a motion for summary judgment, which was granted in
part based on the magistrate’s determination that Appellee did not have a servicing
-2-
office within 200 miles of the mortgaged property and so was excused from a HUD
regulation that requires a face-to-face meeting between the parties prior to the
commencement of foreclosure proceedings.
{¶5} After the issue of the face-to-face meeting was disposed of in summary
judgment, the magistrate held a bench trial on the remaining two issues: whether
Appellee properly informed Appellants of their right to a face-to-face meeting and
whether Appellee properly complied with the loss-mitigation requirements. On
August 2, 2012, the magistrate found in Appellee’s favor on both issues. An
objection to the magistrate’s decision was filed, but the trial court adopted the
decision and ruled in Appellee’s favor. This timely appeal followed.
Final Appealable Order
{¶6} As a preliminary matter, Appellee argues that Appellants failed to object
to the magistrate’s decision to grant partial summary judgment, thus any issue
stemming from that decision is not properly on appeal. In response, Appellants
contend that the partial summary judgment decision was not a final appealable order
and they were not required to object until the entire matter was resolved. By
definition, a final appealable order disposes of the whole case or some separate and
distinct branch thereof. Noble v. Colwell, 44 Ohio St.3d 92, 94, 540 N.E.2d 1381(1989). An order granting partial summary judgment is not separate and distinct
when the issue determined is based on the same facts and circumstances as the
claims that remain pending before the court. Id. We have previously held that when
all of the issues before the court were based on the sale of the same property and
-3-
only one of those issues was disposed of in partial summary judgment, the order
granting partial summary judgment is not immediately final and appealable. Salata v.
Vallas, 7th Dist. No. 03-MA-157, 159 Ohio App.3d 108, 2004-Ohio-6037, 823 N.E.2d
50, ¶19.
{¶7} Here, the magistrate granted partial summary judgment on whether
Appellee was excused from arranging a face-to-face meeting with Appellants.
However, the magistrate did not grant summary judgment as to either the sufficiency
of the notice or the loss mitigation claim. Pursuant to Salata, as all issues stem from
the question of whether Appellee satisfied the HUD requirements in the same
foreclosure proceeding, the issues are not separate and distinct. We also note that
although the partial summary judgment decision stated that it was a final order, it did
not include the requisite Civ.R. 54(B) language. Based on the record here, the partial
summary judgment was not immediately a final appealable order and Appellants
have not waived their arguments in regard to the issue.
{¶8} Appellee also argues that Appellants failed to file an objection to the
magistrate’s decision regarding summary judgment at the time it was entered.
Appellants did file an objection to the magistrate’s decision following the bench trial
on the other two issues, and their objection included reference to the summary
judgment determination. As the partial grant of summary judgment did not become a
final appealable order until after the remaining issues were tried, Appellants’
objection to the magistrate’s decision was timely.
ASSIGNMENT OF ERROR NO. 1
-4-
THE TRIAL COURT ABUSED ITS DISCRETION BY ADOPTING THE
MAGISTRATE’S DECISION DETERMINING THAT “THE LAW OF THE
CASE” WAS ESTABLISHED BY THE JULY 19, 2012 JUDGMENT
ENTRY, WHICH ADOPTED THE MAGISTRATE'S FINDING THAT
APPELLANT [SIC] WAS EXCUSED FROM THE RESPONSIBILITY TO
HOLD A FACE-TO-FACE MEETING WITH APPELLEE [SIC].
{¶9} An appellate court reviews a trial court’s decision to adopt, reject, or
modify a magistrate’s decision for an abuse of discretion. Bank of America, N.A. v.
Miller, 7th Dist. No. 13 MA 119, 2015-Ohio-2325, ¶25, citing Long v. Noah's Lost Ark,
Inc., 158 Ohio App.3d 206, 2004-Ohio-4155, 814 N.E.2d 555, ¶17 (7th Dist.).
However, a trial court’s decision to adopt a magistrate’s decision that grants
summary judgment is reviewed de novo. Id.{¶10} Before ruling on a motion for summary judgment, the trial court must
look at all facts in the light most favorable to the non-moving party and find that: “(1)
no genuine issue as to any material fact remains to be litigated; (2) the moving party
is entitled to judgment as a matter of law; and (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing the evidence most
favorably in favor of the party against whom the motion for summary judgment is
made, the conclusion is adverse to that party.” Campbell Oil Co. v. Shepperson, 7th
Dist. No. 05-CA-817, 2006-Ohio-1763, ¶8, citing Temple v. Wean United, Inc., 50
Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
-5-
{¶11} In moving for summary judgment, “the moving party bears the initial
responsibility of informing the trial court of the basis for the motion, and identifying
those portions of the record which demonstrate the absence of a genuine issue of
fact on a material element of the nonmoving party's claim.” (Emphasis deleted)
Campbell Oil Co. at ¶9, citing Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d
264 (1996). In response, the non-moving party must set forth specific facts showing
that a genuine issue of fact remains for trial and that a reasonable factfinder could
rule in that party’s favor. Id., citing Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d
378, 386, 701 N.E.2d 1023 (1997).
{¶12} C.F.R. 24 §203.604(b) provides in relevant part that:
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.
{¶13} However, pursuant to C.F.R. 24 §203.604(c):
A face-to-face meeting is not required if:
(1) The mortgagor does not reside in the mortgaged property,
-6-
(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.
The bank bears the burden of proving an exception to the HUD regulations exists.
Wells Fargo Bank, N.A. v. Aey, 7th Dist. No. 12-MA-173, 2013-Ohio-5381, ¶45, citing
Bank of America, N.A. v. Gray, 5th Dist. No. 2012-CA-116, 2010-Ohio-712, ¶21.
{¶14} Appellants argue that HUD requires a mortgagee to hold a face-to-face
meeting with the mortgagor before initiating foreclosure proceedings. Appellants
note that Appellee does not dispute that it failed to arrange and hold a face-to-face
meeting before these foreclosure proceedings began. As HUD requires a meeting
and Appellee has not met any of the exemptions, Appellants argue that the
magistrate erred in finding that Appellee was excused from arranging and holding
such meeting.
{¶15} In response, Appellee cites to a Texas U.S. District Court case which
held that the term “branch office” within C.R.F. §203.604(c)(2) refers to a servicing
office. Mitchell v. Chase Home Finance, LLC, N.D.Texas No. CV-2099-K, 2008 WL
-7-
623395 (Mar. 4, 2008). In addition to the Texas case, Appellee cites to a “Q&A
section” of the HUD website. According to Appellant, this section also suggests that
HUD’s reference to a “branch office” means a servicing office. Appellee contends
that it produced evidence showing that it did not have a servicing office within 200
miles of the mortgaged home, and so was exempt from participating in a face-to-face
meeting with Appellants.
{¶16} Although Appellee relies on Texas law and the HUD website, several
Ohio appellate districts have already interpreted the term “branch office” as it pertains
to C.R.F. 206.604(c)(2). The First District held that the term “branch office,” which is
specifically listed within the regulation, is not limited to only a servicing branch. Wells
Fargo, NA v. Isaacs, 1st Dist. No. C-100111, 2010-Ohio-5811, ¶10. The court further
stated that the term is unambiguous, so there is no need to look to the agency for
interpretation. Id. Similarly, the Fourth District held that a plain reading of the
regulation suggests that the 200-mile exception applies only when there is no branch
of the bank of any kind within 200 miles. Wells Fargo v. Phillabaum, 4th Dist. No.
10CA10, 192 Ohio App.3d 712, 2011-Ohio-1311, 950 N.E.2d 245, ¶14. Likewise, the
Eleventh District held that the term “branch office” does not refer specifically to a
servicing office; rather it refers to any branch office. HSBC Bank USA, Nat’l. Trust
Co. v. Teagarden, 11th Dist. No. 2012-T-0091, 2013-Ohio-5816, ¶61.
{¶17} Although Appellee contends that “branch office” really means a
servicing office, it is the established law in Ohio that the term refers to any branch
office. We likewise determine that the 200-mile exception within HUD regulations
-8-
that would excuse a face-to-face meeting refers to any branch office, not solely a
servicing branch office. Appellee has produced no evidence that it has no branch
office within 200 miles of the mortgaged house. Hence, this record reflects that it has
not met its burden of proving that it was exempt from holding a face-to-face meeting
with Appellants pursuant to C.R.F. §203.604(c)(2). We find that summary judgment
was improperly granted on this issue. Appellants’ first assignment of error has merit
and is sustained.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION BY ADOPTING THE
MAGISTRATE’S DECISION WHICH WAS CONTRARY TO LAW AND
WHICH FOUND THAT APPELLEE MADE THE REQUIRED ATTEMPT
TO ARRANGE A FACE-TO-FACE MEETING THROUGH
CORRESPONDENCE MAILED TO APPELLANT'S RESIDENCE BY
REGULAR MAIL AND ADMITTED INTO EVIDENCE AS PLAINTIFF'S
EX. “5”.
{¶18} An appellate court reviews a trial court's adoption, modification, or
rejection of a magistrate's decision for an abuse of discretion. Bailey v. Marrero-
Bailey, 7th Dist. No. 10 BE 16, 2012-Ohio-894, ¶16, citing Spain v. Hubbard, 7th Dist.
No. 02 BA 15, 2003-Ohio-2555, ¶27. “The term ‘abuse of discretion’ connotes more
than an error of law or of judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable.” Bailey at ¶16, citing Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
-9-
{¶19} As stated earlier, there are two possible exemptions to the face-to-face
meeting requirement in this case. We have already determined that Appellee offered
no proof that it met the criteria for the 200-mile exemption. However, the trial court
additionally ruled that Appellee qualified under another exemption, as it made
reasonable efforts to arrange such a meeting.
{¶20} According to C.F.R. §203.604(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.” The
Second, Fifth, and Eleventh Districts have each held that the “minimum” effort
necessary to comply with C.F.R. §203.604(d) requires that the letter be sent to the
mortgagor by certified mail. See U.S. v. Detweiler, 5th Dist. No. CA2010-00064, 191
Ohio App.3d 464, 2010-Ohio-6408, 946 N.E.2d 777; Washington Mut. Bank v.
Mahaffey, 2d Dist. No. 19651, 154 Ohio App.3d 44, 2003-Ohio-4422; HSBC Bank
USA, Nat’l Trust Co. v. Teagarden, 11th Dist. No. 2012-T-0091, 2013-Ohio-5816, 6
N.E.3d 678.
{¶21} Citing to Detweiler, Appellants contend that an attempt to arrange a
face-to-face meeting through regular mail is insufficient to meet HUD requirements.
The plain language of the regulation requires that such attempt must be made via
certified mail. As Appellee’s letter was sent by regular mail, Appellants contend that
the minimum effort was not met and the trial court erred in adopting the magistrate’s
finding that Appellee made the requisite attempt to arrange a face-to-face meeting.
-10-
{¶22} Appellee responds by arguing that Appellants failed to provide us with
the transcripts of the trial court proceedings, thus we are limited to reviewing only
questions of law. Appellee argues that a determination whether the letter was sent
through the proper channel would require us to make a finding of fact. In this
argument, Appellee overlooks the fact that the magistrate’s decision clearly states
that Appellee “did attempt to arrange a face-to-face meeting with Defendant, Mary
Kay Sharp through correspondence mailed to her residence by regular mail and
admitted into evidence as Plaintiff’s Ex ‘5’.” (Emphasis added) (Mag. Dec., pp. 3-4.)
It is apparent that the magistrate and the trial court did make the finding of fact as to
the manner in which the letter was mailed. Appellants seek for us to review the legal
impact of this finding: whether that method is acceptable under the law. Contrary to
Appellee’s assertion, failure to provide a transcript of the hearing is not fatal to this
issue on review.
{¶23} Ohio law is clear: notice of the right to a face-to-face meeting must be
sent through certified mail. The law is equally clear that regular mail is insufficient.
As the trial court made a factual finding that the letter was sent to Appellants via
regular mail, the record clearly discloses that Appellee failed to comply with C.R.F.
§203.604(d). Accordingly, Appellants’ second assignment of error has merit and is
sustained.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ABUSED ITS DISCRETION BY ADOPTING THE
MAGISTRATE'S DECISION WHICH MAKES A FINDING OF FACT
-11-
THAT THE “PROCESS NOTES” STATE “... THE INVESTOR IS
GINNIE MAE AND WE ARE NOT MODIFYING GINNIE MAE LOANS
BECAUSE WE WOULD HAVE TO PURCHASE THEM OUT OF THE
INVESTOR POOL.”, AND THEN CONCLUDES THAT APPELLEE
SUBSTANTIALLY COMPLIED WITH ALL THE REQUIREMENTS OF
THE HUD LOSS MITIGATION PROGRAM.
{¶24} C.R.F. §203.501 provides:
Mortgagees must consider the comparative effects of their elective
servicing actions, and must take those appropriate actions which can
reasonably be expected to generate the smallest financial loss to the
Department. Such actions include, but are not limited to, deeds in lieu
of foreclosure under § 203.357, pre-foreclosure sales under § 203.370,
partial claims under § 203.414, assumptions under § 203.512, special
forbearance under §§ 203.471 and 203.614, and recasting of
mortgages under § 203.616. HUD may prescribe conditions and
requirements for the appropriate use of these loss mitigation actions,
concerning such matters as owner-occupancy, extent of previous
defaults, prior use of loss mitigation, and evaluation of the mortgagor's
income, credit and property.
{¶25} This language is further explained in C.R.F. §203.605 Loss
mitigation performance:
-12-
(a) Duty to mitigate. Before four fully monthly installments due on the
mortgage have become unpaid, the mortgagee shall evaluate on a
monthly basis all of the loss mitigation techniques provided at §
203.501 to determine which is appropriate. Based upon such
evaluations, the mortgagee shall take the appropriate loss mitigation
action. * * *
{¶26} Appellants contend that Appellee refused to consider loan modification,
which is one of the three HUD loss-mitigation programs that a mortgagee is required
to consider. Appellants also argue that the magistrate erred in determining that
Appellee had discretion to determine which of the three loss-mitigation programs
would be offered. As loss-mitigation programs are not optional, Appellants assert
that the trial court erred in adopting the magistrate’s determination that Appellee
substantially complied with HUD regulations.
{¶27} In response, Appellee argues that Appellants failed to provide the trial
court with the transcripts of the proceedings before the magistrate. For this reason,
both the trial court and this Court are limited to reviewing only questions of law. As to
the law, Appellee contends that the evidence of record shows that it substantially
complied with loss-mitigation. Appellee urges that it has the discretion to determine
which of the loss-mitigation programs is best suited for a defaulted loan. The fact
that the chosen method did not satisfy Appellants does not rise to the level of non-
compliance.
-13-
{¶28} Here, while we are somewhat hampered by the lack of a transcript of
the hearing before the magistrate, which was not filed to the trial court and cannot be
considered on appeal, the record does establish that Appellee considered loan
modification. The record also demonstrates that loan modification was not a viable
option, as it would require Appellee to purchase the loan out of the investor pool. By
its plain language, C.R.F. §203.501 allows a mortgagee to compare the potential
effects of each option and choose a program “which can reasonably be expected to
generate the smallest financial loss to the Department.” It appears that this is exactly
what happened in the instant case. Appellee weighed the effects of loan
modification, determined that it would result in a significant loss, and offered
Appellants a repayment plan. Although the repayment plan offered by Appellee was
apparently not a viable option for Appellants, this record demonstrates that Appellee
complied with HUD’s loss-mitigation requirement. Appellants’ third assignment of
error is without merit and is overruled.
Conclusion
{¶29} As Appellee failed to present any evidence to show that it does not
have any branch office as defined by Ohio law within 200 miles of the mortgaged
home, the trial court erred in adopting the magistrate’s determination that Appellee
met the 200-mile exemption specified in C.R.F. §203.604(5)(d). Consequently, the
trial court erroneously adopted the magistrate’s decision granting partial summary
judgment in favor of Appellee on this issue. Similarly, the trial court erred by adopting
the magistrate’s finding that Appellee complied with C.R.F. §203.604(d), as the
-14-
requisite notice to Appellants was not sent by certified mail. The trial court was
correct, however, in adopting the magistrate’s finding that Appellee substantially
complied with the loss-mitigation requirement. Accordingly, we reverse and remand
the issue regarding the requirement of a face-to-face meeting for further proceedings
consistent with this Opinion. The trial court’s adoption of the magistrate’s decision as
to the loss-mitigation issue is affirmed.
Donofrio, P.J., concurs.
DeGenaro, J., concurs in judgment only in part with concurring in judgment only in
part opinion.
-15-
DeGENARO, .J.
{¶30} Although I agree with the majority's merit analysis and its
determination that the trial court's July 19, 2012 judgment entry granting Appellee
partial summary judgment expressly finding "there being no just cause for delay,"
was not a final appealable order until after the trial on the remaining issues, I write
separately because I cannot join the analysis regarding that issue. The partial
summary judgment entry was not an immediately final appealable order because it
failed to meet the criteria of R.C. 2505.02. As such, it is unnecessary to reach the
issue of whether the entry complied with Civ.R. 54(B)—the second step in
appealability analysis.
{¶31} Appellate courts evaluate their jurisdiction over a purported final
judgment that disposes of some, but not all, claims in an action, by applying a two-
step analysis. The first question to be answered is whether the judgment is a final
appealable order as defined by R.C. 2505.02. If the answer is yes, only then does
the appellate court continue the analysis. The second question to be answered is
whether the trial court invoked the Civ.R. 54(B) language and if so, whether that
determination was correct. The majority held—despite the Civ.R. 54(B) language
employed by the trial court—that the order was not immediately appealable as
contemplated by Civ.R. 54, thus limiting its analysis to the second question. Implicit
in this holding is the majority's conclusion that the judgment was a final appealable
order pursuant to R.C. 2505.02. The majority supports its conclusion with the
analysis from this panel's majority decision in Salata v. Vallas, 7th Dist. No. 03 MA
157, 2004-Ohio-6037.
{¶32} The present case is the third in a series considered by this panel
regarding the interplay of the statute and civil rule regarding the finality and
appealability of partial summary judgments disposing of some but not all claims in a
suit, the prior two being Felger v. Tubetech, 7th Dist. No. 00 CO 23, 2002-Ohio-1161(DeGenaro and Donofrio, majority; Waite, dissenting); and Salata v. Vallas, 7th Dist.
No. 03 MA 157, 2004-Ohio-6037 (Waite and Donofrio, majority; DeGenaro,
-16-
dissenting). Stated differently, this line of cases raises the two-part question of first,
whether, and then when, an appellate court has jurisdiction to review a partial
judgment.
{¶33} In Felger, an employee asserted seven claims against her employer:
sex and handicap discrimination as well as separate retaliation claims, retaliation for
filing a worker's compensation claim, emotional distress arising out of the five
discrimination/retaliation claims and loss of consortium. Felger at *1. The trial court,
finding no just reason for delay, granted the employer partial summary judgment on
only two claims: sex discrimination retaliation and disability discrimination. Id. at *2.
Although this left the underlying sex discrimination, disability and workers'
compensation retaliation, emotional distress, and loss of consortium claims to be
resolved, the majority held that there was jurisdiction to consider the appeal. Id. at
*5. The dissent argued the judgment there was not immediately appealable because
there was a "body of interest" shared by the resolved claims and those claims still
before the trial court for resolution, relying on Chef Italiano Corp. v. Kent State Univ.,
44 Ohio St.3d 86, 541 N.E.2d 64 (1989), to support this conclusion, although
conceding such phraseology was not used in Chef Italiano, but was implied. Felger
at *10 (Waite, J., dissenting.)
{¶34} Salata involved a home sale resulting in the vendor filing a complaint
alleging breach of contract and conversion of personal property, and the purchaser
filing a counterclaim asserting fraud and RICO claims related to the sale and the
wrongful removal of fixtures. Salata at ¶2. The vendor filed for summary judgment
on most of the claims raised in the complaint and the counterclaim; however the trial
court only granted summary judgment in favor of the vendor on the purchaser's RICO
claim, finding no just reason for delay. Id. at ¶5. The majority held there was no
jurisdiction to consider the appeal, reasoning:
Without explicitly saying so, the Ohio Supreme Court also ruled that for
any adjudicated claim that had a common body of interest still pending
before the trial court, the partially resolved issues were not final and
-17-
appealable despite the inclusion in the judgment entry of the "no just
cause for delay" language from in Civ.R. 54(B). This implicit holding in
Chef Italiano applies to the situation presented to us in the instant
appeal.
Id. at ¶ 23.
{¶35} The dissent in Salata concluded the judgment was a final appealable
order, and in so doing contrasted the final appealability holdings in that case and in
Felger, first discussing the different interpretation of the second prong of the test—
Civ.R. 54(B)—noting that the rule was amended after Chef Italiano to include the
language "whether arising out of the same or separate transaction." Salata at ¶29
(DeGenaro, J., dissenting.) The dissent continued:
In 1993, the Ohio Supreme Court set forth the appropriate
analysis for reviewing the finality and appealability of orders containing
Civ.R. 54(B) certification. See Wisintainer v. Elcen Power Strut Co.
(1993), 67 Ohio St.3d 352, 354, 617 N.E.2d 1136. An appellate court
first reviews whether the order is final pursuant to R.C. 2505.02,
focusing on "that predominantly legal question of whether the order
sought to be appealed affects a substantial right and whether it in effect
determines an action and prevents a judgment." Id. Second, the court
reviews whether the trial court's determination that "there is no just
cause for delay" was appropriate. Id."A final order * * * is one disposing of the whole case or some
separate and distinct branch thereof." Noble v. Colwell (1989), 44 Ohio
St.3d 92, 94, 540 N.E.2d 1381. To be final and appealable in a case
involving multiple claims and multiple parties, an order must "dispose of
at least one full claim by one party against another and contain an
express certification pursuant to Civ.R. 54(B)." Horner v. Toledo Hosp.
(1993), 94 Ohio App.3d 282, 288, 640 N.E.2d 857. It is clear in this
case that the trial court's order dismisses Vallas's entire counterclaim
-18-
against Salata, thus preventing Vallas from obtaining a judgment
against Salata. Accordingly, the order from which Vallas appealed is in
fact final.
Pursuant to Wisintainer, it must next be determined whether the
trial court properly certified that "there is no just reason for delay." This
phrase "is not a mystical incantation which transforms a nonfinal order
into a final appealable order. Such language can, however, through
Civ.R. 54(B), transform a final order into a final appealable order."
(Citation omitted.) Wisintainer, 67 Ohio St.3d at 354, 617 N.E.2d 1136.
Salata at ¶ 26-36 (DeGenaro, J., dissenting).
{¶36} Turning to the first step in appealability analysis here—whether the
order is final pursuant to R.C. 2505.02—the section of the statute applicable to this
case provides: "An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following: (1) An order that
affects a substantial right in an action that in effect determines the action and
prevents a judgment[.]" R.C. 2505.02(B)(1).
{¶37} The face-to-face meeting requirement is a right afforded Appellant by
federal law, and is a substantial right which she is entitled to enforce. R.C.
2505.02(A)(1). The trial court concluded that Appellee was excused from conducting
a face-to-face meeting with Appellant because there was not a service branch within
200 miles of her home. However, this decision did not determine the action or
prevent a judgment, because it did not "dispose of the whole merits of the cause or
some separate and distinct branch thereof and leave nothing for the determination of
the trial court." Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities v.
Professionals Guild of Ohio, 46 Ohio St.3d 147, 153, 545 N.E.2d 1260 (1989).
Instead, the order resolved a statutory defense to foreclosure.
{¶38} "[T]wo judgments are appealable in foreclosure actions: the order of
foreclosure and sale and the order of confirmation of sale. LaSalle Bank Natl. Assn.,
2012-Ohio-4040, 2012 WL 3834894, ¶ 20." CitiMortgage, Inc. v. Roznowski, 139
-19-
Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 35 reconsideration denied, 139
Ohio St.3d 1473, 2014-Ohio-3012, 11 N.E.3d 1195, ¶ 35 (2014). Among other things,
the trial court's July 19, 2012 judgment entry does not indicate the amount due on the
promissory note or prioritize the liens on the property, just to name two elements of a
foreclosure decree and order of sale. CitiMortgage, LaSalle.
{¶39} A central issue for appellate courts and practitioners is when the court
has jurisdiction to consider a partial final judgment in a case. Because this is an
issue courts and practitioners at both the appellate and trial court levels face with
regularity, the correct analytical order and substance regarding the interplay between
R.C. 2505.20 and Civ.R. 54(B) is critical. Thus, I reprise my dissent in Salata: Felger
correctly states the law with respect to when a partial judgment is ripe for appeal.
Here, the majority relies upon Salata in its application of Civ.R. 54(B), and as that
analysis is incorrect, I cannot join that reasoning.
{¶40} Applying Felger and Wisintainer here, resolution of when this court
had jurisdiction to consider the partial summary judgment regarding the face-to-face
requirement starts and ends with the first step of the analysis—whether the order is a
final order as contemplated by the statute. It is not. See CitiMortgage; LaSalle.
Thus, I respectfully disagree with that portion of the majority's analysis.