memorandum in support of jurisdiction in re miller, 666 f.3d 1255, (10th cir. 2012) ... in re veal,...
TRANSCRIPT
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IN THE SUPREME COURT OF OHIO
BANK OF AMERICA, N.A.
Appellee
-vs-
RUSSELL SAADEY
Appellant.
^ CASE NO. 'I A'^^.
* On Appeal from the Mahoning /County Court of Appeals, 7th
* District Appellate District CaseNo. 12-MA-196
^
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MEMORANDUM IN SUPPORT OF JURISDICTION
Marc E. Dann 0039425The Dann Law Firm Co., LPAPO Box 6031040Cleveland, OH 44103216/373-0539216/373-0536 - faxnotices(a^dannlaw.com.Counsel for Def'endant-Appellants
Miranda HamrickRomi FoxLemer Sampson & RothfussPO Box 5480Cincinnati, OH 45201513/241-3100Counsel for Plaintiffs-Appellees
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Table of Contents
AN EXPLANATION OF WHY THIS CASE IS OF GREAT GENERAL INTEREST ................. 5
STATEMENT OF THE CASE AND THE FACTS ........................................................................ 7
The Complaint ............................................................................................................................ 7
Summary Judgment ..................................................................................................................... 7
The Trial Court's Decisions ........................................................................................................ 8
The Court of Appeals' Decision .................................................................................................. 8
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW .. ..................................................... 9
Proposition of Law No. 1: In order to establish standing in a foreclosure action, a plaintiffmust possess, at the institution of the suit, the right to enforce the debt secured by themortgage . .. ..... .. .. ... .. .. . .. . . . .. .. . . .. . . ... . . . .. .. . .... .. . ... . . . . . . .. . . .. .. . . ... .. . . .. ..... . .. .. ... . .. .... . ... .... .. ... ... . .. ... . .. .... . . . 9
Proposition of Law No. 2: Information obtained from. an affiant's review of hearsay businessrecords is insufficient to provide the personal knowledge required to satisfy Civ. R. 5 6(E). ...11
Proposition of Law No. 3: An affiant who claims personal knowledge based solely upon areview of business records may not provide testimony about facts not contained in properlyauthenticated business records provided to the court in accordance with Civ.R. 56(E). .......... 12
Proposition of Law No. 4: An affiant may not authenticate a business record of an entity withwhich she has no affiliation without providing proper foundation for admission of the record.................................................................................................................................................... 13
Proposition of Law No. 5: In an action to enforce a negotiable instrument, person againstwhom the instrument is sought to be enforced is entitled to inspect the instrument upon motionto the court . ............................................................................................................................... 14
Proposition of Law No. 6: When coriducting a de novo review of a grant of summaryjudgment, a court of appeals may not consider unauthenticated documents not relied upon bythe movant to support its motion in the trial court .................................................................... 15
CONCLUSION .. ............................................................................................................................ 16
CERTIFICATE OF SERVICE ...................................................................................................... 17
APPENDIX ................................................................................................................................... 18
2
CasesAdams v. Madison Realty & Development, Inc., 853 F.2d 163, 168 (3d Cir.1988) ...................... 15BAC Home Loan Serv v. McFerren, 2013-Ohio-3228, 9th Dist. No. 26384 ................................. 5Bank ofAmerica v. Saadey, 2014-Ohio-3569 ........................................................ 9.........................Bank ofAmerica, NA. v. Loya, 9th Dist. Summit No. CA26973, 2014-Ohio-2750 .................. 6, 12Bank ofAmerica, NA., v. Pasqualone, 10th Dist. Franklin No. 13AP-87, 2013-Ohio-5795 ...... 15Bonacorsi v. Wheeling & Lake Erie Ry. Co., 767 N.E.2d 707, 95 Ohio St.3d 314, 2002-Ohio-
2220 (Ohio 2002) .................................................................................................................11, 13Carpenter v Longan, 83 U.S. 271, 274, 21 L.Ed. 313 (1873) ....................................................... 10Citizens Ins. Co. v. Burkes (1978), 56 Ohio App.2d 88, 95-96 ...................................................... 16Countrywide Home Loan Servicing v. Nichpor 136 Ohio St.3d 55 (2013) ....................................11Deutsche Bank Natl. Trust v Brumbaugh, 2012 OK 3, 270 P.3d 151 .......................................... 10Douglass v. Salem Cmty. Hosp., 153 Ohio App.3d 350, 360, 2003-Ohio-4006 ........................... 16Dresher v. Burt, 662 N.E.2d 264, 75 Ohio St.3d 280, 293, 1996-Ohio-107 (Ohio 1996) ............ 16Estate Plan. Legal Services, P.C. v. Cox, 2008-Ohio-2258, Warren App. Nos. CA2006-11-140,
CA2006-12-141 ................................................................................................................... ..... 12First Knox National Bank v. Peterson, 2009-Ohio-5096, ¶18 (5th Dist. No. 08CA28) ............... 10Georg v 1Vetro Fixtures Contractors, Inc., 178 P.3d 1209, 1213 (Col.o.2008) ............................ 14HSBC Bank USA N.A. v. Thompson, 2nd Dist. Montgomery No. 23761, 2010-Ohio-4158 ...... 15In re Miller, 666 F.3d 1255, (10th Cir. 2012) ............................................................................... 14In re Veal, 450 B.R. 897, 910 (9th Cir.BAP 2011)......... ............................................................... 15Int'l Brotherhood Of Electrical Workers, Local No. 8 v. Hyder, 6th Dist. No. WD03067, 04-LW-
2785, 2004-Ohio-3460 .............................................................................................................. 16Kernohan v Manss, 53 Ohio St. 118, 133, 41 N.E. 258 (Ohio 1895) .......................................... 10National City Bank v Skipper, 2009-Ohio-5940, ¶25 (9th Dist. No. C.A. 24772) ....................... 10National City Bank, Dayton v. Ohio National Lif'e Assurance Corp., 111 Ohio App.3d 387, 31
(Hamilton Co. 1996) ................................................................................................................. 14Residential Funding Co., LLC v Thorne, 6th Dist. No. L-09-1324, 2010-Ohio-4271 ..............9, 11Richardson v. Girl Scouts ofNorth East Ohio, 10th Dist. Franklin No. 27127, 2014-Ohio-1036 16Sparks v. Erie Cty. Bd. of Commrs. (Jan. 16, 1998), 6th Dist. No. E-97-007) .............................. 16SRMOF Trust 2009-1 v Lewis, Case No. 2014-0485 ................................................................. 5, 9St. Paul Fire & Marine Ins. Co. v. Ohio Fast Freight, Inc. (1982), 8 Ohio App.3d 155, 456
N.E.2d 551) ................................................................................................................................11St. Paul Fire & Marine Ins. Co. v Ohio Fast Freight, Inc., 8 Ohio App.3d 155, syll. ¶1 (Franklin
Co. 1985) ................................................................................................................................... 12State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 223, 631
N.E.2d 150 .................................................................................................................... ........ 13State ex rel. Corrigan v Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (Ohio 1981) ...... 12TPIAsset Mgt. v. Conrad-Eiford, 2"d Dist. Clark No. 10CA0044, 193 Ohio App.3d 38, 2011-
Ohio-1405 .................................................................................................. .............6, 11Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. No. 2010-CA-00291, 2011-Ohio-3202 14Wells Fargo Bank, NA. v Smith, 12th Dist. Brotivn, No. CA12-04-006, 2013-Ohio-0855 ............. 6
3
StatutesRevised Code § 1303.31 ...........................................................................................................11, 14Revised Code § 1303.58(B) ........................................................................................................... 15Revised Code § 1303.67(A) ..................................................................................................... 14,15Revised Code Chapter 1303 ............................................................................................................ 6
Other AuthoritiesBlack's Law Dictionary (7th Ed.Rev. 1999) .................................................................................. 13Miller & Harrell, supra, ¶ 6.03 [6] [b] [ii] ....................................................................................... 15The Restatement of the Law 3d, Property, Mortgages, Section 5.4(e), at 385 (1996) .................. 10Weissenberger's Ohio Evidence (2002) 213, Section 602.1 ......................................................... 13
RulesCiv. R. 56(E) ................................................................................................................................ 13Civ.R. 56(C) .......................................................................................... ........... 16Civ.R. 56(E) .................................................................................. .............................5,9,11,12,13Evid. R. 602 ................................................................ .................................................................. 13Evid. R. 803 ................................................................................................................................... 13Evid. R. 803(6) .......................................................................................................................... 9, 13
RegulationsUCC § 3-418(b) ................................................................................................ ... 15UCC § 3-602(a) ............................................................................. .... 15UCC § 3-602(c) ..................................................................................... ........ 15
4
AN EXPLANATION OF WHY THIS CASE IS OF GREAT GENERALINTEREST
This case is of great general interest for three distinct reasons. First, this case allows the
court to expand on an issue of law that is currently pending before this Court. Second, the case
involves evidentiary issues that, although not uncommon in years past, are now becoming all too
common in foreclosure cases and consumer collection cases across the state. The expansion of
the secondary market, sophisticated securitization structures for consumer debt, and the frequent
transfer of servicing rights for residential mortgages, present new evidentiary issues which the
Courts of this state are struggling to address. Third, this case presents an issue that is unique to
the area of negotiable instruments - the fundamental requirement that demonstrate, with credible
and admissible evidence, that it was in actual physical possession of the Note when suit is filed.
Saadey's first proposition of law is currently pending before the Court in SRMOF Trust
2009-1 v. Lewis, Case No. 2014-0485. In Lewis, the Court accepted a conflict certified by the
Twelfth District Court of Appeals on the following question:
In order to establish standing in a foreclosure action and invoke the jurisdiction ofthe common pleas court, must a plaintiff establish at the time complaint forforeclosure is filed that it has an interest in both the note and mortgage, or is itsufficient if the plaintiff demonstrates an interest in either the note or themortgage?
The Court's decision in Lewis conflicts witlz the decision of the Ninth District Court of Appeals
in BAC Home Loan Serv v. McFerren, 2013-Ohio-3228, 9th Dist. No. 26384. Because one of the
legal issues presented in this case is currently before the Court, Saadey submits that this case is
of great general interest.
Second, the case presents several related issues regarding the standard for affidavits in
summary judgment proceedings. Over the past few years, Ohio's Courts of Appeals have taken
disparate approaches to the requirements of an affidavit under Civ.R. 56(E). Some of the issues
5
relates to the personal knowledge of the affiant. Compare Wells Fargo Bank, N.A. v. Smith, 12th
Dist. Brown, No. CA12-04-006, 2013-Ohio-0855, ¶39. ("Generally, "a mere assertion of
personal knowledge satisfies the personal knowledge requirement of Civ.R. 56(E) . ..") with TPI
Asset Mgt. v. Conrad-Eiford, 2°d Dist. Clark No. 10CA0044, 193 Ohio App.3d 38, 2011-Ohio-
1405, ^, 22 ("'The affiant Hunter's statement that " I am authorized on behalf of Chase Bank USA,
N.A. to make this affidavit" is insufficient to demonstrate that he has any personal knowledge of
the facts that the affidavit contains."). Other issues relate to document authentication. Compare
Bank of America, N.A. v. Loya, 91h Dist. Summit No. CA26973, 2014-Ohio-2750, ¶14 ("Having
reviewed the business records attached to Ms. Littlejohn's affidavit, we cannot conclude that a
review of the records would have allowed her to attest to the fact that Bank of America was in
possession of Mr. Loya's note at the time it filed suit against him.") In the instant case, the
Affiant merely averred she was 18 years old and familiar with Bank of America's records ("Fazio
averred that she had personal knowledge of the documentation associated with Jackson's loan,
and that she further gained personal knowledge of the related issues by reviewing several
documents, which were attached to her affidavit."). These drastically different standards create
confiision for litigants and judges alike. Depending on the appellate district a litigant is in, very
different rules regarding affidavit testimony apply. The need for uniformity in the application of
the Rules of Evidence and Rules of Civil Procedure make this case one of great general interest.
Finally, this case highlights an aspect of negotiable instruments that Ohio courts have
only recently started to explore. As the Court is aware, the promissory notes used in most
residential mortgage loans are "negotiable instruments" under Revised Code Chapter 1303, a
part of the Uniform Commercial Code as adopted in Ohio. Unlike other contracts, a negotiable
instrument can only be enforced by a limited class of persons defined by statute. And for the
6
most part, such a person must, at a minimum, possess the original instrument. Further, the
entitlement to enforce the instrument is often governed by the endorsements found on the face of
the original instrument. Thus, the obligation of an issuer of a negotiable instrument, i.e. who that
issuer must pay, is controlled solely by the possession of, and endorsements on, the original note
itself. This case presents the issue of whether an Ohio homeowner is entitled to inspect the
negotiable instrument he is being sued on to ensure that the party suing is actually the person
entitled to collect on the note and discharge the issuers obligations under it. This issue implicates
not only the merits of the claim itself, but also matters of standing. For these reasons, the case is
of great general interest.
STATEMENT OF THE CASE AND THE FACTS
This appeal is from the grant of summary judgment in a residential foreclosure matter.
7he Complaint
Bank of America, N.A. ("BANA") filed this foreclosure action in February 2012. In its
Complaint, BANA claimed it was in possession of the note, attached a photocopy of the Note
indorsed in blank. BANA further claimed that it was the holder of the Mortgage, however, the
Mortgage attached to the Complaint was in the name of Countrywide Bank FSB and an
assignment to BAC Home Loans Servicing LP fka Countrywide Home Loans Servicing and not
BANA. Further attached to the Complaint was a series of unauthenticated merger documents
that BANA failed to authenticate in its Motion for Summary Judgment. As a result, the merger
documents were not properly before the court.
Summary Judgment
Later, when BANA filed its motion for summary judgment, it supported the motion with
the fill in the blank affidavit of Shelly Rae Fazio, an officer of BANA. Ms. Fazio did not give the
7
court any information regarding her job duties and/or responsibilities. There is nothing contained
within the affidavit that would offer the reader any indication whatsoever what Ms. Fazio did on
a day-to-day basis or how she would have obtained personal knowledge of the material attached
to her affidavit. Fazio testified at '[2 that BANA maintains records and she is familiar with the
type of records that BANA maintains. There is no testimony or records offered to evidence a
merger.
1. An Account Information Statement, which is not identified with an exhibit letter.
2. Exhibit A - A duplicate copy of the Note. The copy of the note bears anendorsement in blank, however the Affiant never attested that she compared thecopy with the original.
3. Exhibit B - A copy of the Mortgage.
4. Exhibit C -An Assignment of Mortgage that assigns the mortgage to BAC HomeLoans Servicing and not BANA.
Conspicuous by its absence is any Notice of Intent to Accelerate the Note or Mortgage as
required by both the Note and Mortgage.
Ms. Fazio testified, "Bank of America, N.A. has possession of the note." She did not,
however, identify the note she was referring to. Nor did she offer any testimony regarding when
BANA obtained possession of the note. She also testified that °`[t]he indebtedness has been
accelerated."
The Trial Court's Decisions
The trial court granted BANA's motion for summary judgment in rather summary fashion
and concluded that the Affiant Ms. Fazio had personal knowledge of the material contained in
her affidavit, merely because she said so.
The Court of Appeals ' Decision
The Court of Appeals affirmed the trial court in all respects. Bank of AJnerica v. Saadey,
8
2014-Ohio-3569. It found that Ms. Fazio's affidavit was unobjectionable because of its
incantation of personal knowledge. It did not reconcile the limited basis for her personal
knowledge with her testimony as to matters wholly outside of that personal knowledge.
Therefore, Saadey stands for the proposition of law that any employee of any bailk may
authenticate and offer into evidence any document found within the bank's filing system and that
Evid R. 803(6) is not applicable to actions wherein the equitable remedy of foreclosure is sought.
Appellant has not identified any flaw in the affidavit filed in this case that wouldindicate that the affiant lacks the necessary personal knowledge. Absence proofthat the affidavit is insufficient, the general rule applies: "[a] mere assertion ofpersonal knowledge satisfies [XX11] Civ.R. 56(E) if the nature of the facts in theaffidavit combined with the identity of the affiant creates a reasonable inferencethat the affiant has personal knowledge of the facts in the affidavit." ResidentialFunding Co., LLC v. Thorne, 6th Dist. No. L-09-1324, 2010-Ohio-4271.
[*P15] In focusing his argument on the allegedly flawed affidavit, Appellantneglects to address the purported crux of his appeal, which is Appellee's legalstatus as a holder entitled to enforce the note and mortgage
While certain Courts of Appeals in Ohio demand that affidavits offered in support of motions for
summary judgment contain foundational testimony to demonstrate personal knowledge, other
courts, such as the Seventh hold that the mere averment of personal knowledge is sufficient.
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. 1: In order to establish standing in a foreclosure action, a plaintiffmustpossess, at the institution of the suit, the right to enforce the debt secured by themortgage.
This proposition of law is currently pending before the Court in SRMOF Trust 2009-1 v.
Lewis, Case No. 2014-0485. In Lewis, the Court accepted a conflict certified by the Twelfth
District Court of Appeals on the following question:
In order to establish standing in a foreclosure action and invoke the jurisdiction ofthe common. pleas court, must a plaintiff establish at the time complaint forforeclosure is filed that it has an interest in both the note and mortgage, or is itsufficient if the plaintiff demonstrates an interest in either the note or the
9
mortgage?
The case is in the briefing process. Saadey respectfully suggests that the same question of law is
present in this case.
This Court long ago held that in a real estate mortgage loan transaction the note
represents the debt, and the mortgage is a mere incident to the note. Kernohan v. Manss, 53 Ohio
St. 118, 133, 41 N.E. 258 (Ohio 1895). And "[b]eing but an incident of the debt, the mortgage
remains, until foreclosure or possession taken, in the nature of a chose in action." Id. As such, the
mortgage "has no determinate value apart from the notes, and, as distinct from them, is not a fit
subject of assignment." Id. p. 132. The U.S. Supreme Court has gone fuither and stated that "an
assignment of the [mortgage] alone is a nullity." Carpenter v. Longan, 83 U.S. 271, 274, 21
L.Ed. 313 (1873).
The Restatement of the Law 3d, Property, Mortgages, Section 5.4(e), at 385 (1996)
supports this position. "[I]n general a mortgage is unenforceable if it is held by one who has no
right to enforce the secured obligation" Id. Even in Schwartzwald, this Court intimated that
standing to sue in foreclosure was limited to those who were entitled to enforce the note.
Schwartzw°ald ¶27 (citing Deutsche Bank Natl. Trust v. Brumbaugh, 2012 OK 3, 270 P.3d 151, ¶
11 ("If Deutsche Bank became a person entitled to enforce the note as either a holder or
nonholder in possession who has the rights of a holder after the foreclosure action was filed, then
the case may be dismissed without prejudice * * *" [emphasis added])).
This rule makes sense. Foreclosure is a two-step process in Ohio. First Knox Ncrtional
Bank v. Peterson, 2009-Ohio-5096, ¶18 (5th Dist. No. 08CA28). Only after the court determines
liability on the underlying obligation can it move to the foreclosure of the mortgage. Id. See also,
National City Bank v. Skipper, 2009-Ohio-5940, ¶25 (9th Dist. No. C.A. 24772). A foreclosure
10
action is really a proceeding to aid in execution of a judgment. Countr"ywide Home Loan
Servicing v Nichpor 136 Ohio St.3d 55 (2013).
Revised Code §1303.31 limits to a few carefully defined classes of persons who may
enforce a promissory note. To permit the naked holder of the mortgage, a person who is not
permitted by statute to sue on the note itself, to bring suit disturbs this legislatively created
scheme. It would permit persons to invoke the jurisdiction of the common pleas court for a
remedy even when that remedy can never be granted in the absence of the debt.
Proposition of Law No. 2: Information obtained from an affiant's review of hearsay businessrecords is insufficient to provide the personal knowledge required to satisfy Civ. R. 56(E).
In Bonacorsi v. Wheeling & Lake Erie Rv. Co., 767 N.E.2d 707, 95 Ohio St.3d 314, 2002-
Ohio-2220 (Ohio 2002), this Court stated: "Personal knowledge" is "[k]nowledge gained through
firsthand observation or experience, as distinguished from a belief based on what someone else
has said." Id. ¶26. The Sixth District Court of Appeals has stated that "[p]ersonal knowledge has
been defined as knowledge of factual truth which does not depend on outside information or
hearsay." Residential Funding Company v. Thorne, 6th Dist Lucas No. L-09-1324, 2010-Ohio-
4271, T64. And the Second District has held that "[h]earsay knowledge based on the affiant's
review of hearsay business records, for example, is insufficient." TPI Asset Mgt. v. Conrad-
Eiford, 950 N.E.2d 1018, 193 Ohio App.3d 38, 2011-Ohio-1405, 2"d Dist. No. 10-CA-0044, ¶24
(citing St. Paul Fire & Har°ine Ins. Co. v. Ohio Fast Freight, Inc. (1982), 8 Ohio App.3d 155,
456 N.E.2d 551).
The personal knowledge requirement of Civ.R. 56(E) cannot be cast aside as a matter of
convenience. Either an affiant has personal knowledge or she doesn't. There is no basis in Ohio
law for someone to claim personal knowledge simply by reading a piece of paper. If so, then
11
every middle school student in the state can claim personal knowledge of the signing of the
Declaration of Independence because they read a text book entry about it.
Proposition of Law No. 3: An affiant who claims personal knowledge based solely upon areview ofbusiness records may not provide testimony aboutfacts not contained in properlyauthenticated business records provided to tiae court in accordance with Civ.R. 56(E).
If an affiant is testifying as to information contained within documents, she must produce
to the Court the documents themselves. Civil Rule 56(E) provides very stringent standards for
the form and content of affidavits subrnitted in support of, or opposition to, a motion for
summary judgment. The rule provides, in relevant part:
(E) Form of affidavits; further testimony; defense required. Supporting andopposing affidavits shall be made on personal knowledge, shall set forth suchfacts as would be admissible in evidence, and shall show affirmatively that theaffiant is competent to testify to the matters stated in the affidavit. Sworn orcertified copies of all papers or parts ofpapers referred to in an affidavit shall beattached to or served with the affldavit. The court may permit affidavits to besupplemented or opposed by depositions or by further affidavits. * * *
(emphasis added). Therefore, an affidavit used to support summary judgment must have
attached to it copies of all papers to which it refers. State ex rel. Corrigan v Seminatore, 66 Ohio
St.2d 459, 467, 423 N.E.2d 105 (Ohio 1981); Estate Plan. Legal Services, P.C. v. Cox, 2008-
Oluo-2258, Warren App. Nos. CA2006-I1-140, CA2006-12-141, ^26. Further, there is no
hearsay exception allowing a witness to give testimony of the content of business records based
solely on a review of those records. St. Paul Fire & Marine Ins. Co. v. Ohio Fast Freight, Inc., 8
Ohio App.3d 155, syll. ¶1 (Franklin Co. 1985).
The Ninth District considered another Bank of America affidavit in Bank qf America,
N.A. v. Loya, 9th Dist. Summit No. CA26973, 2014-Ohio-2750. It found that an affidavit based
on personal review of business records could not permissibly assert facts not contained within
the documents produced with the affidavit. And it specifically considered whether a review of
12
records could have provided a basis for the affiant to testifv to the possession of the note:
"Having reviewed the business records attached to Ms. Littlejohn's affidavit, we cannot conclude
that a review of the records would have allowed her to attest to the fact that Bank of America
was in possession of Mr. Loya's note at the time it filed suit against him." ¶14.
The holding of the Ninth District is sound. It comports with both the requirements of Civ.
R. 56(E) and those of Evid. R. 803.
Proposition of Law No. 4: An affiant may not authenticate a business record of an entity withwhich she has no affiliation without providing properfoundation for admission of the record.
In Bonacorsi V. Wheeling & Lake Erie Ry. Co., 767 N.E.2d 707, 95 Ohio St.3d 314, 2002-
Ohio-2220 (Ohio 2002), this Court stated:
Civ.R. 56(E) requires that affidavits supporting motions for summary judgment bemade on personal knowledge. State ex rel. Cassels v. Dayton City School Dist. Bd.of Edn. (1994), 69 Ohio St.3d 217, 223, 631 N.E.2d 150. For obvious reasons, thisis the same standard as applied to lay witness testimony in a court of law. Id.;Evid. R. 602. "Personal knowledge" is "[k]nowledge gained through firsthandobservation or experience, as distinguished from a belief based on what someoneelse has said." Black's Law Dictionary (7th Ed.Rev.1999) 875. See, also,VVeissenberger's Ohio Evidence (2002) 213, Section 602.1 ("The subject of awitness's testimony must have been perceived through one or more of the sensesof the witness. ***[_A] witness is 'incompetent' to testify to any fact unless he orshe possesses firsthand knowledge of that fact.").
A testifying witness must, then, provide the court with sufficient evidence to establish
both the requisite personal knowledge to provide foundation evidence to admit a business record
and the actual foundation evidence for the admission of the documents itself. This requires an
affiant to first explain why she possesses the requisite knowledge to authenticate a business
record. Once the required personal knowledge is established, then the affiant must satisfy the
elements of Evid. R. 803(6) to remove the document from operation of the hearsay rule.
In Wachovia Bank of Delaware, N.A. v. ,Iackson, 5th Dist. No. 2010-CA-00291, 2011-
13
Ohio-3202, the Court addressed whether an employee of one company could lay the proper
foundation to authenticate the business record of another company. In reversing a grant of
summary judgment, the court rejected an affidavit in which the affiant, an employee of an entity
other than the plaintiff bank, did not establish that she could have personal knowledge of anotber
company's records or practices. Id. ¶28.
This is not to say that such authentication is not possible. But at a minimum, an affiant
must provide the Court with sonie background evidence as to how she has the requisite
knowledge to provide proper evidentiary foundation.
Proposition of Law No. 5: In an action to enforce a negotiable instrument, person againstwhom the instrument is sought to be enforced is entitled to inspect the instrument upon motionto the court.
In Ohio, a negotiable instrument tells its own story. From its face, a person should be able
to tell who owes whom. National City Bank, Dayton v. Ohio National Life Assurance Corp., 111
Ohio App.3d 387, 31 (Hamilton Co. 1996). Under the U.C.C., the person entitled to payment is
defined as a"person entitled to enforce" the note. Revised Code § 1303.31. And possession of the
note is a critical element to determining holder status or the rights of a holder. In re Miller, 666
F.3d 1255, (10th Cir. 2012).
"Possession is an element designed to prevent two or more claimants from qualifying asholders who could take free of the other party's claim of ownership." Georg v. MetroFixtures Contractors, Inc., 178 P.3d 1209, 1213 (Colo.2008) (citation omitted)." Withrare exceptions, those claiming to be holders have physical ownership of the instrumentin question." Id. (citation omitted).In the case of bearer paper such as the Note, physicalpossession is essential because it constitutes proof of ownership and a consequent right topayment." Id. at pp. 1263-64.
Pursuant to Revised Code §1303.67(A), only payment to a person entitled to enforce a
negotiable instrument discharges the maker's liability on the note. "Subject to division (B) of this
section, an instrument is paid to the extent payment is made by or on behalf of a party obliged to
14
pay the instrument and to a person entitled to enforce the instrument." Id. Therefore, the issuer of
a negotiable iiistrument will be exposed to double liability on the same debt if they pay someone
other than the person entitled to enforce the instrument.
[I]f a maker pays a "person entitled to enforce" the note, the maker's obligationsare discharged to the extent of the amount paid. UCC § 3-602(a) [Revised Code§ 1303.67(A) ]. Put another way, if a maker makes a payment to a "person entitledto enforce," the obligation is satisfied on a dollar for dollar basis, and the makernever has to pay that amount again. Id. See also UCC § 3-602(c) [Revised Code§1303.67(A)].
If, however, the maker pays someone other than a"person entitled to enforce"-even if that person physically possesses the note the maker signed-the paymentgenerally has no effect on the obligations under the note. The maker still owes themoney to the "person entitled to enforce," Miller & Harrell, supra, ¶6.03 [6] [b] [ii], and, at best, has only an action in restitution to recover themistaken payment. See UCC § 3-418(b) [Revised Code §1.303.58(B)].
Bank of America, N.A., v Pasqualone, 10th Dist. Franklin No. 13AP-87, 2013-Ohio-5795, ¶26
(quoting In re Veal, 450 B.R. 897, 910 (9th Cir.BAP 2011). See also HSBC Bank USA, N.A. v.
Thompson, 2nd Dist. Montgomery No. 23761, 2010-Ohio-4158, ^ 71-72, (quoting Adams v.
Madison Realty & Development, Inc., 853 F.2d 163, 168 (3d Cir.1988) ("[F]rom the maker's
standpoint: `it becomes essential to establish that the person who demands payment of a
negotiable note, or to whom payment is made, is the duly qualified holder. Otherwise, the obligor
is exposed to the risk of double payment, or at least to the expense of litigation incurred to
prevent duplicative satisfaction of the instrument.' ")).
As a practical matter, aii inspection of the original note is the only way to determine who
is entitled to enforce it. For only through examining the original can any person know for certain
who possesses the note and what endorsements appear on its face.
Proposition of Law No. 6: When conducting a de novo review of a grant ofsummaryjudgment, a court ofappeals may not consider unautlienticated documents not relied upon by
15
the movant to support its motion in the trial court.
On summary judgment, "the moving party bears the initial burden of demonstrating that
there are no genuine issues of material fact concerning an essential element of the opponent's
case. To accomplish this, the movant must be able to point to evidentiary materials of the type
listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher v. Burt,
662 N.E.2d 264, 75 Ohio St.3d 280, 293, 1996-Ohio-107 (Ohio 1996). Thus, it is the duty of the
movant to identify what evidence in the record it is relying on to support its motion. Thus, it is
improper for an appellate court to base its de novo review on matters neither identified by the
movant nor considered by the trial court. See Richardson v. Girl Scouts of North East Ohio, 10th
Dist. Franklin No. 27127, 2014-Ohio-1036, ¶39.
This rule is doubly true regarding matters contained in the record that are not properly
unauthenticated. "Unauthenticated documents which are not sworn, certified, or authenticated by
way of affidavit have no evidentiary value and may not considered by the trial court." Int'l
Brotherhood Of Electrical Workers, Local No. 8 v. Hyder, 6`h Dist. No. WD03067, 04-LW-2785,
2004-Ohio-3460, ¶19 (J. Lanzinger) (citing Douglass v. Salem Cmty. Hosp., 153 Ohio App.3d
350, 360, 2003-Ohio-4006, ¶25; Citizens Ins. Co. v. Burkes (1978), 56 Ohio App.2d 88, 95-96;
Sparks v. Erie Cty. Bd of Commrs. (Jan. 16, 1998), 6th Dist. No. E-97-007).
If a trial court may not consider unauthenticated documents in deciding summary
judgment, neither may a court of appeals do so during its de novo appellate review.
CONCLUSION
For these reasons set forth above, Appellant Russell Saadey requests that the Court accept
jurisdiction over this case and decide the propositions of law contained herein.
16
Respec umitted,
/ ...^._.__
Marc E. Dann 0039425The Dann Law Firm Co., LPAPO Box 6031040Cleveland, OH 44103216/373-0539216/373-0536 - faxnoticesLa,dannlaw. com.C©unsel for Defendant-Appellants
CERTIFICATE OF SERVICE
A copy of the foregoing has been served by ordinary U. S. Mail on this 29th day ofSeptember 2014 upon the following:
Miranda HamrickRomi FoxLerner Sampson &Rothfuss120 East 4th Street, 8'h FlCincinnati, OH 45202Attorney for Plaintiffs-Appellees
Lori White Laisurec/o ND of Ohio801 Superior Ave, #400Cleveland, OH 44113Attorney for USA
Matthew Gianinni1040 S. Common Place,#200Youngstown, OH 44514Attorney for Villas atLakewoodCondominium
MTG ElectronicRegistration Systems1901 East VoorheesStreet, Suite CDanville, IL 61834
William Urban434 High Street, NEWarren, OH 44481Attorney for HomeSavings & Loan
Marc E. Dann 0039425
APPENDIX
A. Court of Appeals Decision and Judgment
B. Trial Court's Decision Granting Summary Judgment
18
STATE OF OHIO
MAHONING COUNTY
BANK OF AMERICA
IN THE COURT OF APPEALS OF OHIO))) SS: SEVENTH DISTRICT
PLAINTIFF-APPELLEE
VS.
RUSSELL SAADEY, et al.
DEFENDANTS-APPELLANTS
CASE NO. 12 MA 196
JUDGMENT ENTRY
For the reasons stated in the Opinion rendered herein, the assignments of
error are overruled and it is the final judgment and order of this Court that the
judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed.
Costs to be taxed against Appellant.
AAi
7&1 x^4i^^v
JUDGES.
201200196III^IIN^IIIlIl^II1^{{{IIIII^II{^^IlI^{^Nf^lll{{i^ 99 81s
STATE OF OHIO, MAHONING COUNTY ..,...... . . .. /r ^^1
f
INTHECOURTOFAPPEALS
SEVENTH DISTRICT
BANK OF AMERICA
PLAINTIFF-APPELLEE
VS.
RUSSELL SAADEY, et al.
DEFENDANTS-APPELLANTS
CHARACTER OF PROCEEDINGS:
JUDGMENT:
APPEARANCES:
For Plaintiff-Appellee:
For Defendant-Appellant:
JUDGES:
Hon. Cheryl L. WaiteHon. Joseph J. VukovichHon. Mary DeGenaro
001964870204
MEMO
CASE NO. 12 MA 196
OPINION
Civil Appeal from the Court of CommonPleas of Mahoning County, OhioCase No. 12 CV 338
Affirmed.
Atty. Patricia K. BlockAtty. Romi T. FoxLerner, Sampson & Rothfuss120 East Fourth Street, Suite 800Cincinnati, Ohio 45202-4007
Atty. Andrew R. ZellersRichard G. Zellers & Associates, Inc.3810 Starrs Centre Dr.Canfield, Ohio 44406
Dated: August 14, 2014
-1-
WAITE, J.
{11} Appellant, Russell Saadey, appeals the decision of the Mahoning
County Court of Common Pleas granting summary judgment in a foreclosure action
filed by Appellee, Bank of America, N.A. His challenge is based on the sufficiency of
the evidence establishing Appellee's standing to file suit as the real party in interest.
Appellant's three assignments of error are without merit and are overruled. The
judgment of the trial court is affirmed.
Factual and Procedural History
{12} Appellee, Bank of America, N.A., filed its foreclosure action against
Appellant, Russell Saadey on February 6, 2012. Appellee named a number of
additional parties who might hold an interest in the property, including the
condominium association and the federal government. These additional claims
(including a cross-claim by the condominium association) and defendants are not at
issue in this appeal.
{13} Appellee at#ached copies of the subject note and mortgage, which
reflect that Appellant was unmarried when he executed the note as a sole promisor in
May of 2007 to the original lender, Countrywide Bank, FSB. Two additional
indorsements on the last page of the note indicate that the note was transferred via
specific indorsement from Countrywide Bank, FSB, to Countrywide Home Loans, Inc.
and then indorsed in blank by Countrywide Home Loans, Inc. The mortgage
attached to the complaint was executed on the same day between the same parties:
Russell Saadey and Countrywide Bank, FSB. A copy of an assignment of mortgage,
-2-
which was executed on July 9, 2009 by Shellie Hill on behalf of Mortgage Electronic
Registration System, Inc. ("MERS") "as nominee for Countrywide Bank, FSB, its
successors and assigns" and purported to transfer the subject mortgage to "BAC
Home Loans Servicing, L.P., fka Countrywide Home Loans Servicing, L.P."
(2/6/12 Complaint, Exh. C.) Also attached to the complaint is a copy of a certificate
of merger from the office of the Secretary of State of Texas which shows that BAC
Home Loans Servicing, L.P. merged into Bank of America, N.A. and a copy of a
second Texas document showing an amendment to a certificate of limited
partnership and changing the name of the partnership from Countrywide Home
Loans Servicing, L.P. to BAC Home Loans Servicing, L.P. as of April 27, 2009.
(2/6/12 Complaint, Exh. D & E.) Appellee also included a notice of a federal tax lien
against Appellant's property in the amount of $24,879.62. (2/6/12 Complaint, Exh.
F.)
(14) Appellant filed an answer to the complaint on April 24, 2012 after he
was granted leave by the trial court. Appellant's answer contains a general denial of
the allegations in the complaint, with the exception of the fact that the mortgage was
filed and appears in the county recorder's records. Appellant did not assert any
counterclaims or defenses. Appellee filed a motion for summary judgment and
affidavit in support of the motion on July 19, 2012. According to the affidavit offered
in support, Appellant failed to make the payment due on January 1, 2009 and has not
made any subsequent payment. The affiant, Shelley Rae Fazio, Assistant Vice
President of Bank of America, stated that the loan was accelerated and was now
-3-
due, for a principal amount of $194,286.80 with 7.75% interest accruing from
December 1, 2008 through April 2012, and 3.25% from May 1, 2012. The note,
mortgage, transfer of mortgage, and a statement of account were attached to the
affidavit and referenced in the affidavit.
{15} Appellant opposed Appellee's motion for summary judgment by
challenging Appellee's status as the real party in interest in the suit. Appellant
alleges that the 2009 assignment of mortgage did not transfer an interest to Appellee
and therefore prevents Appellee from enforcing the terms of the mortgage.. Appellant
filed an amended answer to the complaint without leave of court in conjunction with
his opposition to Appellee's motion for summary judgment on August 12, 2012. The
amended answer raised a number of defenses and challenged Appellee's standing to
foreclose. Appellee filed a motion to strike Appellant's amended answer, as it was
not filed within the 28-day window allowed by Civ.R. 15. The trial court did not rule
on this motion. The trial court did grant Appellee's motion for summary judgment on
September 28, 2012, however. Hence, the record indicates that Appellee's motion to
strike the amended answer was denied. Appellant's timely appeal was filed from the
entry granting summary judgment.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
MOTION FOR THE PLAINTIFF [SIC] THIS CASE WHEN THERE
WERE GENUINE ISSUES OF MATERIAL FACT REMAINING TO BE
PROVED BY THE PLAINTIFF.
-4-
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
FOR THE PLAINTIFF SINCE THEY WERE NOT THE REAL PARTY IN
INTEREST TO BRING A FORECLOSURE ACTION.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT GRANTED SUMMARY JUDGMENT FOR THE
PLAINTIFF BASED ON INSUFFICIENT EVIDENCE.
{16} Appellant's three assignments of error challenge the sufficiency of the
evidence presented by Appellee in support of its motion for summary judgment.
Appellant's arguments focus on two issues: Appellee's identity as the real party in
interest and the sufficiency of the averments in the affidavit filed in support of the
motion. Because an evaluation of these two issues will determine the outcome of all
three assignments of error, the assignments will be considered together.
(17} A trial court's decision to grant summary judgment is reviewed under a
de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,
671 N.E.2d 241 (1996). Before summary judgment can be granted, the court hearing
the motion must determine: (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.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
-5-
{¶8} "[T]he 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 sic.) Dresher v. Burt, 75 Ohio St.3d 280, 296,
662 N.E.2d 264 (1996). The nonmoving party has the reciprocal burden of setting
forth specific facts showing that there is a genuine issue for trial. Id. at 293. In order
to prevent summary judgment from being granted, the nonmoving party must
produce some evidence that suggests that a reasonable facffinder could rule in that
party's favor. Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701
N.E.2d 1023 (1997).
{19} Appellant argues that there is a genuine dispute as to Appellee's
standing to foreclose as the owner of the note and mortgage. Appellant contends
that the affidavit filed by Appellee contains the same defects that have led four other
appellate districts to hold that an affidavit filed in support of summary judgment is
insufficient to support a judgment. Appellant is mistaken in this contention. The
conclusions reached in the cases cited by Appellant are based on dispositive facts
that materially differ from the case at bar.
{110} The cases Appellant cites generally fall into two categories: those in
which the affiant is not an employee of the plaintiff bank or lending institution and
those where the note is absent and/or specifically indorsed to an entity other than the
plaintiff.
-s-
{¶11 } Appellant primarily relies on two Sixth District cases, Aurora Loan
Servs., L.L.G. v. Louis, 6th Dist. No. L-10-1289, 2012-Ohio-384 and Fed. Natl. Mtge.
Assn, v. Brunner, 6th Dist. No. L-11-1319, 2013-Ohio 128. Aurora combines both of
the common defects: the complaint was filed without a copy of the note and the note
subsequently produced was specifically indorsed to an entity other than the plaintiff
lending institution. The original lender bank. had closed before the matter was
brought to trial. The affiant, an employee of plaintiff, could not establish personal
knowledge of this closed bank's records, on which plaintiff relied. Similarly, in
Brunner, the Sixth District rejected the affidavit of an employee of an entity other than
the plaintiff lender who relied on "access" to his own employer's records, and not the
plaintiff lender's, in making the affidavit.
{112} Appellant emphasizes the fact that in this case and in Aurora the affiant
is a bank vice president. Appellant overlooks the fact that in Aurora, the affiant was
not the vice president of the bank whose records were necessary to establish a chain
of title. Similarly, Appellant argues that the affiant in Brunner averred "knowledge"
based on his "position" but the court found this claim insufficient. Appellant ignores
the fact that the Brunner affiant was not an employee of the plaintiff and the affiant's
purported knowledge was of a third party's records, not those presented by the
plaintiff. Both of these cases are inapplicable to the matter now before us, in which
the note is bearer paper and the motion for summary judgment is supported by the
affidavit of an employee who has sworn to have personal knowledge of documents
-7-
that are the business records of her own employer and which she reviewed prior to
executing her affidavit. (Fazio Aff.)
{113} Appellant's other cases are equally inapplicable to the matter before us.
In RBS Citizens N.A. v. Vemyi, 9th Dist. No. 26046, 2012-Ohio-2178 the affidavit was
defective because the affiant did not indicate her relationship to the plaintiff bank; in
Maxum ldemn. Co. v. Selective Ins. Co. of South Carolina, 2012-Ohio-2115 affiant's
knowledge was purportedly based on a contract not in evidence; in Bank of New York
Mellon Trust Co. v. Mihalca, 9th Dist. No. 25747, 2012-Ohio-567 the employee of a
separate entity who identified herself as "attorney in fact" for the plaintiff bank did not
establish a basis as to her personal knowledge sufficient to authenticate the plaintiffs
business records; in Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. No.
2010-CA-00291, 2011-Ohio-3202, the affiant was, again, an employee of an entity
other than the plaintiff bank and her affidavit did not establish that she could have
personal knowledge of another company's records or practices. Finally, in TPI Asset
Mgt., L.L.C. v. Conrad-Eiford, 193 Ohio App.3d 38, 2011-Ohio-1405, two affidavits
were rejected, both because the affiants were not employees of the business whose
records they purported to authenticate and because the affidavits did not contain
facts sufficient to establish personal knowledge. The court held that the general
statement that the affiants were "authorized" to execute affidavits for Chase Bank did
not support a finding that the information in the affidavits were based on personal
knowledge.
-8-
(¶14) The affiant in this matter is an employee of Appellee who swears to
have personal knowledge as to documents produced and maintained in th® course of
Appellee's business. As each of the districts Appe#lant cites in support of his
misguided argument have noted:
Pursuant to Civ.R. 56(E), affidavits submitted in support of, or in
opposition to, a motion for summary judgment must be "made on
personal knowledge[.]" "Unless controverted by other evidence, a
specific averment that an affidavit per#aining to business is made upon
personal knowledge of the affiant satisfies th[is] Civ.R. 56(E)
requirement[.]" Bank One, N.A. v. Swartz, 9th Dist. No. 03CA008306,
2004-Ohio-1986, 114, citing State, ex rel. Corrigan v. Seminatore, 66
Ohio St.2d 459[, 423 N.E.2d 105] (1981). However, "[i]f particular
averments contained in an affidavit suggest it is unlikely that the affiant
has personal knowledge of those facts, then * * * something more than
a conciusory averment that the affiant has knowledge of the facts would
be required." Bank One at ¶ 14, quoting Merchants Natl. Bank v.
Leslie, 2d Dist. No. 2072 (Jan. 21, 1994).
Mihalca, supra, ¶16. Appellant has not identified any flavv in the affidavit filed in this
case that would indicate that the affiant lacks the necessary personal knowiedge.
Absence proof that the affidavit is insufficient, the general rule applies: "[a] mere
assertion of personal knowledge satisfies Civ.R. 56(E) if the nature of the facts in the
affidavit combined with the identity of the affiant creates a reasonable inference that
-9-
the affiant has personal knowledge of the facts in the affidavit." Residential Funding
Co., LLC v. Thome, 6th Dist. No. L-09-1324, 2010-Ohio-4271.
(115) In focusing his argument on the. aflegedly flawed affidavit, Appellant
neglects to address the purported crux of his appeal, which is Appellee's legal status
as a holder entitled to enforce the note and mortgage. Under Ohio law, the current
holder of the note and mortgage is the real party in interest in foreclosure actions.
When a party fails to establish that it is the current holder of the note and mortgage,
summary judgment is inappropriate, U.S. Bank Natl. Assn. v. Marcino, 2009-Ohio-
1178, ¶32. Where, as here, the note produced in support of Appellee's claim
contains an indorsement that does not specifically identify the payor, it is a note
indorsed in blank and payable to the bearer. R.C. 1303.25(B) states:
"Blank indorsement" means an indorsement that is made by the holder
of the instrument and that is not a special indorsement. When an
instrument is indorsed in blank, the instrument becomes payable to
bearer and may be negotiated by transfer of possession alone until
specially indorsed.
Appellee's affidavit states: "Bank of America, N.A. successor by merger to BAC
Home.Loans [sic] Servicing, LP fka Countrywide Home Loans Servicing, LP has
possession of the note. The business records attached, which I have reviewed, are
true and correct copies * * *." (Fazio Aff., ¶4-5.) In Ohio, a person or entity who is in
possession of an instrument made payable to bearer is entitled to enforce the terms
of the instrument as the "holder." R.C. 1301.01(T)(1).
-10-
{¶16} For nearly a century, Ohio courts have held that whenever a promissory
note is secured by a mortgage, the note constitutes the evidence of the debt and the
mortgage is a mere incident to the obligation. Edgar v. Haines, 109 Ohio St. 159,
164, 141 N.E. 837 (1923). Therefore, the negotiation of a note operates as an
equitable assignment of the mortgage, even when the mortgage is not assigned or
delivered.. Kemohan v. Manss, 53 Ohio St. 118, 133, 34 WLB 79 (1895.)
(117) Various sections of the Uniform Commercial Code, as adopted in Ohio,
support the conclusion that the owner of a promissory note should be recognized as
the owner of the related mortgage. See R.C. 1309:109(A)(3) ("this chapter applies to
the following: ***[a] sale of * * * promissory notes"), 1309.102(A)(73)(d) ("`Secured
party' means: ***[a] person to whom * * * promissory notes have been sold"), and
1309.203(G) ("The attachment of a security interest in a right to payment or
performance secured by a security interest or other lien on personal or real property
is also attachment of a security interest in the security interest, mortgage, or other
lien"). Further, "[s]ubsection (g) [of U.C.C. 9-203] codifies the common-law rule that
a transfer of an obligation secured by a security interest or other lien on personal or
real property also transfers the security interest or lien." Official Comment 9 to
U.C.C. 9-203, the source of R.C. 1309.203.
(118) Thus, although the record does not contain an additional recorded
assignment of the mortgage, there is sufficient evidence in the record to establish
that Appellee is the current owner of the note and mortgage. In addition to
establishing that it is the current holder of the note and the real party in interest,
-11-
Appellee also provided evidence of Appellant's default due to nonpayment, and
established the amount due and owing. (Fazio Aff.) Appellee also produced the
required accounting showing the date of default as it is identified in the complaint.
This was confirmed in the affidavit. (Fazio Aff., Exh. 1.) Accordingly, Appellant's
three assignments of error are without merit and are overruled.
Conclusion
{119} Appellant's three assignments of error are without merit. The affidavit
offered in support of summary judgment was legally sufficient, Appellee produced
evidence to establish standing as the real party in interest, identified a default, and
provided an accounting of the amount due on the obligation. The judgment of the
trial court is affirmed in full.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.
APPROVED:
R AlE,J GE
r
_vs_
201200255
(sla)
COURT OF COMMON PLEAS
MAHONING COUNTY, OHIO
vUtJif t ii^^riO^tidf^•1G
5E EIi;Eji'ft Lt^^'rj7HQ,^I'0 ;I!'.Io. C, r ^cz;r
Bank of America, N.A. successor Case No. 2012CV00338by merger to BAC Home LoansServicing, LP fka Countrywide Judge James C. Evans
Home Loans Servicing, LP
Russell. Saadey, et al
Plaintiff,
Defendants.i
ENTRY GRANTING SUMMARY JUDGMENT
AND DECREE IN FORECLOSURE
This matter is before the Court on the Motion for Summary
Judgment of the plaintiff, to obtain judgment upon the Note as
described in the Complaint; and to foreclose the lien of the
Mortgage securing the obligation of such Note upon the real estate
described herein; and to require all parties to set up their
claims to the real estate or be barred.
The Court finds that all necessary parties have been properly
served, are properly befoie the Court, and that the defendants,
Jane Doe, name unknown, spouse of Russell Saadey and Mortgage
Electronic Registration Systems, Inc. are in default of Motion or
Answer.
The Court finds that the defendant, Russell Saadey, filed an
Answer in response to the plaintiff's Complaint. The Court
finds that the plaintiff has filed a motion for Summary Judgment
llll^l^^l[l!Ill^l^l^ll^^l l ^^[[^I^III^II^^lillll^II^E1^^ill^l^ I^i{il^l[Illl^llll^^^l^^f^^ll^^lI^IIIIII.LSR201200256D2781' 1500C9
supported by a Memorandum, and Affidavit. Upon consideration
thereof, the Court finds no genuine issue as to any material
fact and the ,plaintiff is entitled to a Judgment and Decree in
Foreclosure as a matter of law.
The Court finds that the allegations contained in the
Complaint are true and that there is due and owing to the
plaintiff, from the defendant, Russell Saadey, upon the subject
Note the principal balance of $194,286.80, for- which amount
judgment is hereby rendered in favor of the plaintiff, with
interest at the rate of 7.5000 percent per annum from December 1,
2008, and as may be adjusted pursuant to- the terms of the note,
together with advances for taxes, insurance and otherwise
expended, plus costs.
The Court finds that the Note is secured by the Mortgage held
by the plaintiff, which mortgage constitutes a valid and first
lien upon the following described premises:
See Exhibit "A"
The Court finds that the Mortgage was filed for record on May
4, 2007, in Mortgage Volume 5692, page 169, of this County's
Recorder's Office; that the conditions of said Mortgage have been
broken and plaintiff is entitled to have the equity_of redemption
®f the defendant-titleholders foreclosed.
The Court finds that the defendants, Villas at Lakewood
Condominium, The Home Savings and Loan Company, and United
States of Ai-nerica have filed separate Answers herein asserting
an interest in the real estate which is the subject of this
action, which interest are junior in priority to plaintiff's
interest as hereinabove set forth.
The Court finds that the defendant, Mahoning County
Treasurer, has an interest in the real estate which is the
subject of this action, which interest is senior in priority to
plaintiff's interest as hereinabovc set forth.
IT IS THEREFORE, ORDERED that unless the sums hereinabove
found to be due to plaintiff, and the costs of this action, be
fully paid within three (3) days from the date of the entry of
this decree, the equity of redemption of the defendant-
titleholders in said real estate shall be foreclosed and the real
estate sold, free of the interests of all parties herein, and an
order of sale may issue to the Sheriff of this County, directing
him to appraise, advertise and sell said real estate, according to
law and the orders of this Court, and report his proceedings to
.this Court. If the United States of America holds a lien on the
real estate, the United States of America shall have the right to
redeem as provided by Title 28, Section 24I0 (C), United States
Code.
IT IS FURTHER ORDERED that the Sheriff shall send counsel for
the party requesting the Order of Sale a copy of the publication
notice promptly upon its first publication.
IT IS FURTHER ORDERED that the Sheriff, upon confirmation of
said sale, shall pay from the proceeds of said sale, upon the
claims herein found, the amounts thereof in the following order of
priority:
1. To the Clerk of this Court, the costs of this action,including the fees of appraisers.
2. To the Treasurer of this County, the taxes andassessments, due and payable as of the date of transferof the deed following sale, and legally assessed againstthe real estate.
3. To the plaintiff, the sum of $194,286.80, with interestat the rate of 7.5000 percent per annum from December 1,2008, and as may be adjusted pursuant to the terms ofthe note, together with advances for taxes, insuranceand otherwise expended, plus costs.
4. The baiance.of the sale proceeds, if any, shall be paidby the Sheriff to the Clerk of this Court to awaitfurther orders of this Court:
The Court further finds that there i.>s no just reason for delay.
4JUDGE
/uunsel^1.i.randa S . Hamrick, T'rial C6Af7
Ohio Supreme Court Reg. #k0084960
LERNER, SAMPSON & ROTHFUSS
Attorneys for PlaintiffP.O. Box 5480Cincinnati, OH 45201-5480
(513) 241-3100
Andrew R. Zellers, Esq.
Attorney for Russell Saadey
Matthew C . Giannini, Esq
Attorney for Villas at Lakewood Condominium
William J. Ur n, Esq.
Attorney for The Home Savings an& Loan Company
^
Lori White Laisure, Esq. ^ "-I^Attorney for United States of America
i> .
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