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OH Appeals Court Affirms Trial Court Decision For Not Complying With HUD Regulations WELLS FARGO v. PHILLABAUM

OH Appeals Court Affirms Trial Court Decision For Not Complying With HUD Regulations WELLS FARGO v. PHILLABAUM


IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY

WELLS FARGO,
vs.
DANA PHILLABAUM

Excerpt:

{¶ 10} The acceleration clause of the note that the appellee executed states, inter alia, as follows:

“If [b]orrower defaults by failing to pay in full any monthly payment, then
[l]ender 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.” (Emphasis added.)2

{¶ 11} Both parties agree that the pertinent federal regulation at issue is set out in Section
203.604(b), Title 24, C.F.R., and requires a “face-to-face” interview between a mortgagor and
mortgagee before three full monthly installments on the mortgage are unpaid. Here, there is no
dispute that the Bank did not conduct such a meeting. Instead, the Bank argues that it falls
under an exception to that requirement because the “mortgaged property is not within 200 miles
of the mortgagee, its servicer, or a branch office of either[.]” (Emphasis added.) Id at (c).
However, appellee’s affidavit in support of his cross-motion for summary judgment states that
“Wells Fargo has at least one branch office within 200 miles of my home” and goes on to explain
that he visited that office on at least one prior occasion. This is sufficient for appellee to carry
his initial Civ.R. 56(C) burden and, thus, the burden shifted to the Bank to provide rebuttal
materials.

continue below…

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