U.S. Bank, N.A. v. O'Malley , 2019 Ohio 5340 ( 2019 )

[Cite as U.S. Bank, N.A. v. O'Malley, 2019-Ohio-5340.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
U.S. BANK NATIONAL ASSOCIATION, :
Plaintiff-Appellee, :
No. 108191
v. :
PATRICK J. O’MALLEY, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 26, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-15-855042
Appearances:
Dinsmore & Shohl L.L.P., H. Toby Schisler, and Alicia
Bond-Lewis, for appellee.
The Law Office of Grace M. Doberdruk, and Grace M.
Doberdruk, for appellants.
RAYMOND C. HEADEN, J.:
Defendants-appellants Patrick and Madeleine O’Malley (“the
O’Malleys”) appeal the trial court’s ruling granting plaintiff-appellee U.S. Bank
National Association’s (“U.S. Bank”) motion for summary judgment, in part, and
granting an in rem foreclosure. For the reasons that follow, we affirm.
I. Factual and Procedural History
On November 16, 2004, the O’Malleys executed a note payable to
Finance America, L.L.C., in the principal amount of $297,600. To secure payment
of the note, the O’Malleys executed a mortgage on real property located in Westlake,
Ohio (“the property”) in favor of Mortgage Electronic Registration Systems, Inc.
(“MERS”), acting as a nominee for Finance America, L.L.C. The mortgage was
recorded in the Cuyahoga County Recorder’s Office on November 19, 2004.
The note contains two undated allonges.1 The first allonge attached
to the note endorses the note from Finance America, L.L.C. to Bank of America,
National Association as successor by merger to LaSalle Bank National Association,
as Trustee for Structured Asset Investment Loan Trust, Mortgage Pass Through
Certificates, Series 2005-2 (“Bank of America”). The second allonge contains an
endorsement from Bank of America to U.S. Bank.
On June 25, 2009, MERS assigned the note and mortgage to Bank of
America. The assignment was recorded with the Cuyahoga County Recorder’s Office
An allonge is a slip of paper that may be attached to a negotiable instrument in
1
order to show additional indorsements when the original negotiable instrument is filled
with indorsements. Deutsche Bank Trust Co. v. Jones, 2018-Ohio-587, 107 N.E.3d 117,
¶ 26 (8th Dist.).
on May 3, 2010. A second assignment of the mortgage dated September 29, 2015,
reflects an assignment and transfer from Bank of America to U.S. Bank. The second
assignment was recorded on October 30, 2015.
The O’Malleys failed to make the payments due under the note and,
on December 1, 2015, U.S. Bank filed a complaint in foreclosure.2 The complaint
alleged as follows: the note and mortgage were in default; U.S. Bank satisfied the
conditions precedent; the entire balance was due and payable; and U.S. Bank was
entitled to enforce the note and mortgage. The following documentation was
attached to the complaint: the note, two allonges, the mortgage, and the
assignments of the mortgage. The O’Malleys filed an answer and counterclaim on
January 29, 2016. The counterclaim was dismissed on September 12, 2016,
pursuant to U.S. Bank’s motion for dismissal. On April 28, 2017, both U.S. Bank
and the O’Malleys filed competing motions for summary judgment. After the parties
fully briefed the motions, a magistrate rendered a decision on July 14, 2017.
The magistrate’s decision found R.C. 1303.16(A)’s six-year statute of
limitations barred U.S. Bank’s claim on the note seeking a personal money
judgment. However, U.S. Bank’s foreclosure action on the mortgage was not barred
by the applicable statute of limitations.
U.S. Bank filed objections to the magistrate’s decision on
July 24, 2017. Before the deadline passed for the O’Malleys to file their objections,
2 U.S. Bank previously filed foreclosure complaints against the O’Malleys but those
are not the subject of this appeal.
the trial court entered an order adopting the magistrate’s decision. The O’Malleys
subsequently filed their objections on July 28, 2017, as well as a motion to vacate on
August 24, 2017. On August 24, 2017, and August 30, 2017, U.S. Bank and the
O’Malleys, respectively, filed notices of appeal that were dismissed on
August 31, 2017, due to a lack of a final appealable order. On September 21, 2017,
the trial court denied the O’Malleys’ motion to vacate the trial court’s adoption of
the magistrate’s order.
On September 25, 2017, the trial court overruled the parties’
objections and adopted the magistrate’s decision. The O’Malleys filed a notice of
appeal on October 17, 2017, and U.S. Bank filed a cross-appeal on October 26, 2017.
Those appeals were dismissed on November 1, 2018, for lack of a final, appealable
order.
The trial court’s amended judgment entry adopting the magistrate’s
decision and overruling all objections was filed on January 8, 2019. On February 6,
2019, the O’Malleys filed a timely notice of appeal, presenting the following
assignments of error for our review:
First Assignment of Error: The trial court erred by not finding that
appellee U.S. Bank’s claim for foreclosure was barred by the statute of
limitations and by not granting appellants Patrick and Madeleine
O’Malley’s motion for summary judgment.
Second Assignment of Error: Appellee was not entitled to judgment as
a matter of law because the affidavit of Mark Syphus never stated that
appellee U.S. Bank had possession of the original note when the
complaint was filed.
Third Assignment of Error: The trial court erred by granting a
judgment of foreclosure because a material issue of fact existed for trial
regarding whether the allonges [we]re affixed to the original note.
Fourth Assignment of Error: The trial court erred by granting
appellee’s motion for summary judgment when the affidavit of Mark
Syphus was not made upon personal knowledge and material issues of
fact existed for trial.
II. Law and Analysis
A. Standard of Review
Before a trial court grants a motion for summary judgment, pursuant
to Civ.R. 56(C), the court must determine 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 such evidence most strongly in favor of the
party against whom the motion for summary judgment is made, that
conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
On a motion for summary judgment, the moving party’s initial
burden is to identify specific facts in the record that demonstrate its entitlement to
summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264(1996). If the moving party does not satisfy this burden, summary judgment is not
appropriate. If the moving party meets the burden, the nonmoving party has a
reciprocal burden to point to evidence of specific facts in the record that
demonstrate the existence of a genuine issue of material fact for trial. Id. at 293.
Where the nonmoving party fails to meet this burden, summary judgment is
appropriate. Id.
In a foreclosure action, a plaintiff must prove the following to prevail
on a motion for summary judgment:
(1) that the plaintiff is the holder of the note and mortgage, or is a party
entitled to enforce the instrument; (2) if the plaintiff is not the original
mortgagee, the chain of assignments and transfers; (3) that the
mortgagor is in default; (4) that all conditions precedent have been
met; and (5) the amount of principal and interest due.
Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-
1657, ¶ 17.
An appellate court applies a de novo standard when reviewing a trial
court’s decision that granted summary judgment. Bayview Loan Servicing, L.L.C.
v. St. Cyr, 2017-Ohio-2758, 90 N.E.3d 321, ¶ 11 (8th Dist.).
B. Statute of Limitations
The note at issue was accelerated in May 2009. The O’Malleys made
no payments following the acceleration date, and U.S. Bank filed a complaint on
December 1, 2015 (“2015 complaint”). The complaint sought a personal judgment
on the note and foreclosure based upon the mortgage. In their motion for summary
judgment, the O’Malleys argued U.S. Bank’s complaint — both the action on the note
and the action on the mortgage — was barred by R.C. 1303.16(A)’s six-year statute
of limitations. The trial court found U.S. Bank’s action on the note was barred when
it was filed outside R.C. 1303.16(A)’s statute of limitation, but U.S. Bank could
proceed on its foreclosure action because it was subject to a longer statute of
limitations.
The O’Malleys contend the foreclosure action was subject to
R.C. 1303.16(A) and because this action was filed outside R.C. 1303.16(A)’s six-year
statute of limitations, the action was barred and the O’Malleys’ motion for summary
judgment should have been granted. U.S. Bank argues that (1) the foreclosure action
is governed by either R.C. 2305.04, which provides a 21-year statute of limitations
or R.C. 2305.06, which applies an 8-year statute of limitations and, (2) because the
foreclosure action was filed within either the 21-year or 8-year statute of limitations,
the trial court did not err when it granted U.S. Bank’s motion for summary
judgment.
Upon a mortgagor’s default, the mortgagee bank has three separate
and independent remedies that it may pursue in an attempt to collect the debt
secured by the mortgage: a personal judgment against the mortgagor to obtain the
amount owing on the promissory note; an action in ejectment based on the
mortgage; and an action in foreclosure based upon the mortgage. Deutsche Bank
Natl. Trust Co. v. Holden, 147 Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.3d 1243,
¶ 22-24.
A personal judgment against the mortgagor is an action on the
promissory note and is governed by R.C. 1303.16(A)’s six-year statute of limitations.
An action in foreclosure is based upon the mortgage, rather than the promissory
note, and is subject to a longer statute of limitations.
The parties agree U.S. Bank filed its complaint six years after
acceleration of the note, and as a result, U.S. Bank is barred, pursuant to
R.C. 1303.16(A), from filing an action on the note. However, the tolling of
R.C. 1303.16(A)’s statute of limitations on the note did not bar U.S. Bank’s
foreclosure action on the mortgage.
Differences exist between a cause of action pursued on a promissory
note in comparison to a cause of action for foreclosure on a mortgage. To recover
on the note, the mortgagee files an action for personal judgment on the note that
was secured by the mortgage. U.S. Bank Natl. Assn. v. Robinson, 8th Dist.
Cuyahoga No. 105067, 2017-Ohio-5585, ¶ 7. In contrast, a foreclosure proceeding
is an in rem, equitable action based upon the mortgage whereby the mortgagee
attempts to secure its interest in the property. Id. Actions in foreclosure are
premised on the fact that:
[a] mortgage conveys a conditional property interest to the mortgagee
as security for a debt, FirstMerit Bank, N.A. v. Inks, 138 Ohio St.3d
384, 2014-Ohio-789, 7 N.E.3d 1150, ¶ 23, and upon default, legal title
to the mortgaged property passes to the mortgagee as between the
mortgagor and mortgagee, Hausman v. Dayton, 73 Ohio St.3d 671,
1995 Ohio 277, 653 N.E.2d 1190 (1995), paragraph one of the syllabus.
Holden, 147 Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.3d 1243, at ¶ 23.
The Ohio Supreme Court found in Holden that the distinctions
between an action on the note versus an action on the mortgage support its position
that the bar of an action on a promissory note secured by a mortgage does not
necessarily bar an action on the mortgage. Id. at ¶ 25.
In Holden, the individual debtors owned a home; Deutsche Bank
(“mortgagee”) held a promissory note and mortgage on the home. The promissory
note was discharged in the debtors’ bankruptcy proceedings. However, the debtors’
bankruptcy discharge did not adversely affect the mortgagee’s interest in the
mortgage. Id. at ¶ 26. Despite a discharge in bankruptcy, the mortgage continued
to be security for the debt and the mortgagee could pursue an action on the
mortgage. Id. at ¶ 27.
The above-described holding from Holden applies in both bankruptcy
and nonbankruptcy settings. Bank of New York Mellon v. Walker, 2017-Ohio-535,
78 N.E.3d 930, ¶ 23 (8th Dist.). If a mortgagee is unable to enforce a promissory
note due to the running of the statute of limitations, the mortgagee still has the right
to enforce an action on the mortgage under the longer statute of limitations period
set forth in R.C. 2305.04. Id. at ¶ 24. “[W]here a party cannot obtain a judgment
on the note because of an infirmity that applies only to the note, the party may still
seek to enforce the valid obligations contained within the mortgage, including
ejectment or foreclosure.” Id.3
In the instant case, U.S. Bank is barred from obtaining a personal
judgment on the note due to the running of R.C. 1303.16(A)’s statute of limitations.
3 The Holden court stated: “This case is different. It is an outlier, because in this
unique case, the secured party, Deutsche Bank, cannot obtain a judgment on the note and
the Holdens have no obligation to satisfy it because the bankruptcy court has discharged
their obligation in that regard.” Holden, 147 Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.3d
1243, at ¶ 6. Those same differences were present in Walker and are reflected in the case
sub judice — both nonbankruptcy cases. Where the statute of limitations on the note has
run, the mortgagee has no recourse and the mortgagor is under no obligation to pay the
outstanding debt. Filing an action on the mortgage, in those circumstances, is the
mortgagee’s only option to recover the amount owing.
Despite that bar, U.S. Bank can pursue its foreclosure action on the mortgage based
upon the holdings of Robinson and Walker. 4
U.S. Bank’s foreclosure claim was not barred by R.C. 1303.16(A)’s
statute of limitations. Thus, the trial court did not err when it granted, in part, U.S.
Bank’s motion for summary judgment and granted U.S. Bank’s foreclosure action.
For the foregoing reasons, the O’Malleys’ first assignment of error is overruled.
C. Standing to Bring the Foreclosure Action
Within their second assignment of error, the O’Malleys challenge that
the trial court erred in granting summary judgment to U.S. Bank because genuine
issues of material fact exist as to whether U.S. Bank has standing. Specifically, the
O’Malleys argue that the affidavit of Mark Syphus (“Syphus affidavit”) attached to
U.S. Bank’s motion for summary judgment did not state the bank possessed the note
and mortgage when the 2015 complaint was filed, and therefore, the bank lacked
standing. U.S. Bank argues possession, and therefore, standing was established by
affixing the note, allonges, mortgage, and assignments to the 2015 complaint and
providing the Syphus affidavit.
“It is fundamental that a party commencing litigation must have
standing to sue in order to present a justiciable controversy and invoke the
4 The O’Malleys cite to In re Fisher, 584 B.R. 185 (Bankr.N.D.Ohio 2018), and that
court’s interpretation of Holden to support their argument that “when the statute of
limitations expires on the note then a claim under the mortgage is also barred by the
statute of limitations.” Appellants’ brief at 4. In re Fisher is not controlling law and we
are bound by our own Eighth District precedent — Walker and Robinson — that applies
Holden and finds separate statutes of limitation apply to the note and mortgage.
jurisdiction of the common pleas court.” Fed. Home Loan Mtge. Corp. v.
Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 41. A party
has standing to prosecute a foreclosure action if it establishes either that (1) it was
the holder of the note in question, or (2) it was assigned the mortgage. Deutsche
Bank Natl. Trust Co. v. Baxter, 2017-Ohio-1364, 89 N.E.3d 91, ¶ 14 (8th Dist.).
Here, U.S. Bank introduced evidence that it was both the holder of the
note and was the current assignee of the mortgage at the time it filed the 2015
complaint. Such evidence presented in a foreclosure claim is sufficient to establish
standing. U.S. Bank, N.A. v. Matthews, 8th Dist. Cuyahoga No. 105011, 2017-Ohio-
4075, ¶ 29.
U.S. Bank attached copies of the following to the 2015 foreclosure
complaint: the note and allonges; the mortgage; an assignment of the note and
mortgage from Finance America to Bank of America; an assignment of the mortgage
from Bank of America to U.S. Bank; and an affidavit signed by both U.S. Bank’s vice
president, Charles Pedersen, and Bank of America’s vice president, Jay Miller
(“Pedersen/Miller affidavit”). The Pedersen/Miller affidavit verifies Bank of
America and U.S. Bank entered a purchase agreement on November 11, 2010,
whereby U.S. Bank acquired assets including the O’Malleys’ mortgage-backed
transaction.5
5No evidence was introduced stating the purchased assets transferred on the same
date — November 11, 2010 — that Bank of America and U.S. Bank entered the purchase
agreement.
In support of U.S. Bank’s motion for summary judgment, the bank
attached the Syphus affidavit. In his affidavit, Mark Syphus verifies he is a
Document Control Officer with Select Portfolio Servicing, Inc. (“SPS”), the mortgage
servicer for U.S. Bank. In this capacity, Syphus has access to SPS’s business records,
including the records relating to the O’Malleys’ loan. Syphus prepared the affidavit
based upon his review of those records and his own personal knowledge of how the
records are kept and maintained. Syphus attested that U.S. Bank has possession of
the note and true and correct copies of the note, mortgage, and assignments of
mortgage are attached to his affidavit.
According to R.C. 1303.31(A)(1), the holder of a note is entitled to
enforce the note. The holder of a note includes “‘[t]he person in possession of a
negotiable instrument that is payable either to bearer or to an identified person that
is the person in possession.’” Matthews, 8th Dist. Cuyahoga No. 105011, 2017-Ohio-
4075, at ¶ 30, quoting R.C. 1301.201(B)(21)(a).
Attached to the complaint is a copy of the promissory note dated
November 16, 2004, as well as two undated allonges indicating the note was
negotiated from Finance America to Bank of America and from Bank of America to
U.S. Bank. Allonges are not required to be dated. Jones, 2018-Ohio-587, 107 N.E.3d
117, at ¶ 27. The Syphus affidavit states U.S. Bank possessed the note when U.S.
Bank’s motion for summary judgment was filed. Contrary to the O’Malleys’
argument, Syphus’s affidavit was not required to specifically affirm that U.S. Bank
had possession of the note when the foreclosure action was filed. See Matthews at
¶ 30.
Even though the allonges are undated, and the Syphus affidavit does
not specify U.S. Bank had possession of the note at the time the 2015 complaint was
filed, the fact that copies of the note and allonges are attached to the 2015 complaint
is sufficient evidence to show (1) the note was negotiated to U.S. Bank before it filed
the complaint, and (2) U.S. Bank was in possession of the promissory note prior to
filing the foreclosure complaint. Matthews at ¶ 30. This evidence establishes U.S.
Bank was the holder of the note and had standing.
Further, a chain of recorded assignments shows U.S. Bank was the
current assignee of the mortgage when the 2015 complaint was filed. Matthews, 8th
Dist. Cuyahoga No. 105011, 2017-Ohio-4075, at ¶ 31. The assignment of note and
mortgage attached to the 2015 foreclosure complaint indicates that on June 25,
2009, MERS as nominee for Finance America, assigned the mortgage to Bank of
America. The mortgage was then assigned to U.S. Bank on September 29, 2015. 6
The assignments demonstrate U.S. Bank was assigned the mortgage and was
entitled to enforce the mortgage and foreclosure action. Walker, 2017-Ohio-535, 78
N.E.3d 930, at ¶ 28.
Accordingly, U.S. Bank had standing to file the foreclosure action. We
find the O’Malleys’ second assignment of error is without merit and is overruled.
The O’Malleys lack standing to object to the assignment of the mortgages because
6
they were neither a party to, nor a third-party beneficiary of, the contract to assign the
rights. Bank of Am. v. Rogers, 8th Dist. Cuyahoga No. 107464, 2019-Ohio-1443, ¶ 20.
D. Allonges
In their third assignment of error, the O’Malleys contend genuine
issues of material fact exist as to whether the allonges were affixed to the original
note when the 2015 complaint was filed. In their fourth assignment of error, the
O’Malleys also argue the allonges differ among the 2010, 2011, and 2015 complaints
filed against them by U.S. Bank.
A promissory note and two allonges were attached to the 2015
complaint and U.S. Bank’s motion for summary judgment. The note and allonges
attached to the 2015 complaint and motion for summary judgment were identical.
While the Syphus affidavit attached to U.S. Bank’s motion for summary judgment
referenced the note as Exhibit A — and did not mention the allonges — both the note
and allonges were included as Exhibit A to the affidavit. Likewise, the promissory
note and allonges were attached together as Exhibit A to the 2015 complaint. We
can reasonably infer that when Syphus referenced the note he was referring to the
note and the two allonges that were provided as one exhibit.
The first allonge indorsed interest in the O’Malleys’ note from
Finance America, L.L.C. to Bank of America. The O’Malleys’ names are listed on the
allonge. Additionally, the second allonge indorsed by Bank of America to U.S. Bank
specifically references the O’Malleys by name as well as the date of the O’Malleys’
note, the amount of the note, and the address of the mortgaged property securing
the payment of the note. Syphus stated in his affidavit that U.S. Bank was in
possession of the note at the time the motion for summary judgment was filed.
Syphus was not required to aver that he compared the copies attached to his affidavit
with the original documents. Wells Fargo Bank, N.A. v. Hammond, 2014-Ohio-
5270, 22 N.E.3d 1140, ¶ 37 (8th Dist.).
Based upon the foregoing evidence, U.S. Bank was not required to
state, verbatim, that the allonges were physically attached to the note. Wilmington
Trust Natl. Assn. v. Boydston, 8th Dist. Cuyahoga No. 105009, 2017-Ohio-5816,
¶ 25. The trial court could reasonably conclude that the allonges filed with the 2015
complaint were properly affixed to the note at the time the instant case was filed.
MorEquity, Inc. v. Gombita, 2018-Ohio-4860, 125 N.E.3d 300, ¶ 37 (8th Dist.); see
also Matthews, 8th Dist. Cuyahoga No. 105011, 2017-Ohio-4075, at fn. 3.
The O’Malleys also complain that in the prior 2010 and 2011
foreclosure cases between the same parties, the note and allonges attached to the
complaints had hole punches at the top of the pages. The copies of the note and
allonges attached to the 2015 complaint do not contain hole punches. The O’Malleys
argue that the presence versus the absence of hole punches raises a genuine issue of
material fact as to whether the allonges were affixed to the original note when the
2015 complaint was filed. Yet, the presence of two differing copies of a note “‘does
not mandate a finding that one of the notes was “unauthentic” or otherwise
preclude[ ] summary judgment.’” Hammond at ¶ 21, quoting Najar, 8th Dist.
Cuyahoga No. 98502, 2013-Ohio-1657, at ¶ 59, citing U.S. Bank, N.A. v. Adams, 6th
Dist. Erie No. E-11-070, 2012-Ohio-6253, ¶ 10.
Further, the O’Malleys incorrectly compare the differences in the
allonges — the presence or absence of hole punches — to the facts in U.S. Bank, N.A.
v. Lavelle, 8th Dist. Cuyahoga No. 101729, 2015-Ohio-1307, where inconsistencies
between two notes resulted in genuine issues of material fact that precluded
resolution of the case by summary judgment. In Lavelle, notes affixed to two
separate complaints were both purported to be the original note yet significant,
obvious differences existed between them — the notes differed in page length and
the indorsements on the notes were signed by different parties. Id. at ¶ 18-19. The
note and allonge attached to the 2010 and 2011 complaint are identical. The
differences in the 2015 complaint are (1) the attachment of the second allonge, and
(2) the presence of hole punches. The second allonge demonstrating the
indorsement of interest from Bank of America to U.S. Bank was recorded in 2015
and would not have been available when the 2010 and 2011 complaints were filed.
Further, the fact that the 2010 and 2011 note and allonge had hole punches while
the 2015 complaint’s attached note and allonges did not have hole punches is
immaterial. The differences between the note and allonge attached to the 2010 and
2011 complaints in comparison to the note and allonges presented with the 2015
complaint do not create genuine issues of material fact.
The record demonstrates U.S. Bank presented evidence that the
allonges were affixed to the promissory note. Once U.S. Bank submitted such
evidence, the burden shifted to the O’Malleys to present evidence of conflicting facts
demonstrating a genuine issue of material fact as to whether the allonges were
attached to the note. Wells Fargo Bank v. Sowell, 2015-Ohio-5134, 53 N.E.3d 969,
¶ 20 (8th Dist.); Civ.R. 56(E). The O’Malleys did not introduce compelling evidence
to support these claims.
The O’Malleys’ third assignment of error and the portions of the
O’Malleys’ fourth assignment of error regarding allonges that were presented and
discussed here lack merit and are overruled.
E. Sufficiency of the Affidavit
The O’Malleys raise numerous issues in their fourth assignment of
error that reads:
Fourth Assignment of Error: The trial court erred by granting
appellee’s motion for summary judgment when the affidavit of Mark
Syphus was not made upon personal knowledge and material issues of
fact existed for trial.
For ease of analysis, we will discuss the issues individually.
1. Possession of the Note
The O’Malleys challenge the sufficiency of Mark Syphus’s affidavit
that was submitted in support of U.S. Bank’s motion for summary judgment and
whether it establishes U.S. Bank had possession of the original note.
Civ.R. 56(E) governs affidavits submitted in support of motions for
summary judgment and states, in pertinent part:
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated in the affidavit. Sworn or certified copies
of all papers or parts of papers referred to in an affidavit shall be
attached to or served with the affidavit. * * *
The O’Malleys argue that there is no business record — such as a computer screen
shot or other document — attached to the Syphus affidavit supporting Syphus’s
statement that U.S. Bank has possession of the note.
In the absence of contradictory evidence, an affiant’s assertion that
his business affidavit is made on personal knowledge demonstrates the affiant is
competent to testify to the matters contained therein and satisfies Civ.R. 56(E).
Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, at ¶ 20; Sowell, 2015-Ohio-
5134, 53 N.E.3d 969, at ¶ 17. An averment that the affiant has personal knowledge
of a transaction or fact cannot be disputed without contrary evidence. Id. An affiant
is not required to explain the basis of his personal knowledge where that knowledge
can be reasonably inferred from the affiant’s position and other facts contained in
the affidavit. MorEquity, 2018-Ohio-4860, 125 N.E.3d 300, at ¶ 25. “Similarly,
verification of documents attached to an affidavit supporting or opposing a motion
for summary judgment is generally satisfied by an appropriate averment in the
affidavit itself, for example, that ‘such copies are true copies and reproductions.’”
Najar at ¶ 20, quoting State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 423
N.E.2d 105 (1981), paragraph three of the syllabus.
Here, Syphus stated in his affidavit that as a Document Control
Officer with SPS, the servicer for U.S. Bank, he has access to and is familiar with
SPS’s business records, including the business records for and relating to the subject
loan. The affidavit is made based upon Syphus’s own personal knowledge of how
the records are kept and maintained and his review of the relevant SPS business
records including the business records relating to the O’Malleys’ loan. SPS collects
payments from borrowers and maintains up-to-date electronic records in its
electronic record-keeping system. The loan records are kept in the ordinary course
of SPS’s regularly conducted business activities. Any business records created by a
prior servicer have been integrated and boarded into SPS’s system and those records
are now part of SPS’s business records. SPS maintains quality control and
verification procedures to ensure the accuracy of the boarded records and in its
regular course of business, SPS relies on the boarded records. Syphus averred that
according to the SPS business records, U.S. Bank, directly or through an agent, has
possession of the note and the note has been either made payable to U.S. Bank or
has been duly indorsed. The Syphus affidavit stated that a true and correct copy of
the note was attached.
The foregoing statements within the affidavit satisfied Civ.R. 56(E)’s
personal knowledge requirement. The O’Malleys offered no evidence contrary to
Syphus’s statements. It can be reasonably inferred from Syphus’s position and other
facts contained in the affidavit that Syphus has personal knowledge of the
information contained within his affidavit including that U.S. Bank had possession
of the note. Matthews, 8th Dist. Cuyahoga No. 105011, 2017-Ohio-4075, at ¶ 22.
The fact that Syphus is an employee of the mortgage servicer, rather than of U.S.
Bank, is immaterial. Najar at ¶ 27.
In addition to Syphus’s affidavit, a review of the note and allonges
attached to the 2015 complaint and U.S. Bank’s motion for summary judgment
demonstrates the documents are identical. The attachment of the note and allonges
to both pleadings, along with Syphus’s assertions in his affidavit, show U.S. Bank
was in possession of the note when the 2015 complaint was filed.
We do not require summary judgment affidavits that are based upon
documents to state the affiant compared the attached copies with the original
documents, “‘nor do we intend to do so because the Ohio Supreme Court has not
made this a requirement of Civ.R. 56(E). ’” Sowell, 2015-Ohio-5134, 53 N.E.3d 969,
at ¶ 16, quoting Hammond, 2014-Ohio-5270, 22 N.E.3d 1140, at ¶ 37. Further, the
fact that the note attached to the affidavit had a court time-stamped date on the
bottom margin did not refute Syphus’s statement that the attachment was a true and
correct copy of the note.
The use of the phrase “directly or through an agent” in the Syphus
affidavit did not raise a genuine issue of material fact as to whether the affiant was
with personal knowledge as to who has possession of the note. See U.S. Bank Natl.
Assn. v. Duvall, 8th Dist. Cuyahoga No. 102156, 2015-Ohio-2275, ¶ 18-19 (while the
language “directly or through an agent” may suggest an affiant lacks personal
knowledge of the facts, additional statements that the affiant inspected business
records relating to the foreclosure and that her knowledge is based upon that
inspection demonstrate the affiant possesses the averred information through her
own personal knowledge).
The O’Malleys’ reliance on Deutsche Bank Natl. Trust Co. v. Dvorak,
9th Dist. Summit No. 27120, 2014-Ohio-4652, and Bank of New York Mellon v.
Villalba, 9th Dist. Summit No. 26709, 2014-Ohio-4351, is misplaced. The Dvorak
court found the granting of a motion for summary judgment inappropriate because
Deutsche Bank failed to demonstrate it was in possession of the note when the
complaint was filed. However, the facts set forth in Dvorak do not state that the
note was attached to the foreclosure complaint. In Villalba, there was a discrepancy
between the dates of the assignment of the mortgage and the affiant’s claimed date
of ownership. The Dvorak and Villalba courts required additional documentation,
such as supporting business records, to prove possession of the note when the
complaint was filed. Additional documentation was not required here because the
complaint and its attached exhibits, coupled with Syphus’s affidavit, show that U.S.
Bank was in possession of the note on the date the foreclosure complaint was filed.
Based upon our review, the facts averred in Syphus’s affidavit were
sufficient to establish that Syphus had personal knowledge of the facts contained
within his affidavit and that U.S. Bank had possession of the note.
2. Authentication of the Default
The O’Malleys argue the Syphus affidavit did not authenticate the
default. The O’Malleys challenge that the affidavit was executed on April 27, 2017,
yet the affidavit identifies the balance due — or the default — as of a date in the
future, May 31, 2017. The O’Malleys also argue that Syphus could not authenticate
the default records for any company other than his employer, SLS, or U.S. Bank.
Unless controverted by evidence, an affidavit stating the loan is in
default is sufficient for purposes of Civ.R. 56 to authenticate a default. Bank One,
N.A. v. Swartz, 9th Dist. Lorain No. 03CA008308, 2004-Ohio-1986, ¶ 14. There is
no requirement that a plaintiff in a foreclosure action provide a complete payment
history in order to prevail on summary judgment. Matthews, 8th Dist. Cuyahoga
No. 105011, 2017-Ohio-4075, at ¶ 33.
Here, U.S. Bank presented evidence, through Syphus’s affidavit and
its attachments, establishing that the loan was in default; the default had not been
cured; the amount owed on the loan; and the fact that the conditions precedent to
foreclosure — as set forth in the mortgage — had been satisfied. This evidence was
sufficient to establish the amount due on the note. Matthews at ¶ 34. The Syphus
Affidavit’s reference to a balance due on May 31, 2017 — a future date — does not
adversely affect the authentication of the default.
The O’Malleys cite Bank of New York Mellon v. Roulston, 8th Dist.
Cuyahoga No. 104908, 2017-Ohio-8400, in support of their position that Syphus
could not authenticate the default records because they were generated by an entity
other than SLS or U.S. Bank. However, the holding in Roulston was narrowed in
Jones, 2018-Ohio-587, 107 N.E.3d 117; see also Bank of New York Mellon v. Kohn,
7th Dist. Mahoning No. 17 MA 0164, 2018-Ohio-3728, ¶ 14-17.
In Jones, the note and mortgage at issue were initially executed,
respectively, in favor of First Magnus and MERS, acting as nominee for First
Magnus. An undated allonge was attached to the note negotiating the document to
Deutsche Bank as Trustee for Residential Accredit Loans, Inc. (“Deutsche Bank
Trustee”). The homeowners’ last payment was received in May 2012; the mortgage
was assigned to Deutsche Bank Trust in August 2012 and Deutsche Bank in 2016.
The loan servicing officer, who provided an affidavit supporting Deutsche Bank’s
motion for summary judgment, sufficiently demonstrated his personal knowledge
of the default:
He averred that in the regular performance of his job functions, he
reviews business records related to the servicing of the mortgage loan
at issue, and that these records are maintained in the regular course of
business. [He] authenticated the note, mortgage, and assignments,
attesting that they are true and accurate. He also authenticated
attached payment records detailing all payments and demonstrating
that the Joneses’ last payment was applied to the May 2012 installment
of the mortgage. [He] averred that the Joneses were advised in August
2012 that the loan was in default, accelerating the unpaid balance of
$142,475.
Jones at ¶ 20. Although Deutsche Bank held the note and mortgage subsequent to
the Joneses’ last mortgage payment, the loan servicing officer’s affidavit provided
sufficient information to authenticate the default.
Just as the loan servicing officer in Jones had sufficient knowledge to
authenticate the default, so too did Syphus. Syphus’s affidavit demonstrated his
personal knowledge of the referenced business records related to the servicing of the
O’Malleys’ loan. The records reviewed were maintained in the regular course of
business. Syphus authenticated the note, mortgage, and assignments, attesting that
they were true and accurate. Syphus also authenticated the attached demand letter
and account history and verified the O’Malleys’ last payment was made on February
1, 2009, and a balance of $531,350.34 was owing to U.S. Bank.7
If the O’Malleys disputed the amount of the default, they could have
raised this argument and submitted evidence — such as cancelled checks, bank
statements, or receipts attached to an affidavit — to establish the proposed amounts
were incorrect. Jones, 2018-Ohio-587, 107 N.E.3d 117, at ¶ 20; Chase Manhattan
Mtge. Corp. v. Locker, 2d Dist. Montgomery No. 19904, 2003-Ohio-6665, ¶ 30. No
such evidence was introduced.
To successfully oppose a motion for summary judgment, a party must
present supporting evidence in accordance with Civ.R. 56(C); the reliance on
unsubstantiated allegations does not raise genuine issues of material fact. Schrader
v. Gillette, 48 Ohio App.3d 181, 183, 549 N.E.2d 218 (11th Dist.1988); see also
Locker at ¶ 30-32. The O’Malleys did not provide evidence in support of their claim
that U.S. Bank failed to authenticate the default.
7Furthermore, the instant matter is distinguishable from Fannie Mae v. Ford,
2016-Ohio-919, 61 N.E.3d 524 (8th Dist.). In Ford, the plaintiff-creditor’s motion for
summary judgment was not appropriate because the plaintiff-creditor did not attach a
copy of the notice of acceleration or payment history, and therefore, could not
substantiate “(1) that the required prerequisites under the note and mortgage were
performed in order to accelerate the balance due on the note; (2) the relevant loan history;
and (3) the evidence to support the late fees.” Ford at ¶ 20. Here, all necessary support
materials were provided and attached to U.S. Bank’s motion for summary judgment
including the mortgage, assignment of mortgage, demand letter, and account history.
Syphus provided sufficient information to authenticate the default
records.
3. Successor Relationship
The O’Malleys argue U.S. Bank “did not properly authenticate a
merger” but the evidence does not support their position. The note and allonges
attached to the 2015 complaint and summary judgment indicate the note was
originally payable to Finance America. Finance America negotiated the note by
indorsing it to Bank of America and, in turn, Bank of America negotiated the note to
U.S. Bank.
The first assignment of the mortgage that was filed with the Cuyahoga
County’s Recorder’s Office on May 3, 2010, clearly indicates Finance America’s
intent to transfer the note, along with the mortgage, to Bank of America. Similarly,
the second assignment of the mortgage — filed with the Cuyahoga County’s
Recorder’s Office on October 30, 2015, — demonstrates Bank of America’s intent to
transfer the mortgage to U.S. Bank.
The assignments of mortgage were admissible as evidence because
they were exempted from the hearsay rule under Evid.R. 803(14) — records of
documents affecting an interest in property. United States Bank Natl. Assn. v.
Higgins, 2d Dist. Montgomery No. 24963, 2012-Ohio-4086, ¶ 16. Both assignments
are acknowledged by a notary, and therefore, are self-authenticating. Id. at ¶ 17. The
assignments also contain stamps noting the date the documents were filed with the
Cuyahoga County Recorder’s Office. Further, the Syphus affidavit avers that the
attached copies of the assignments are true and correct copies of the originals.
Based upon the facts and Evid.R. 803(14), the assignments of mortgage were
properly considered with U.S. Bank’s motion for summary judgment.
The note, allonges, and assignments of mortgage demonstrate U.S.
Bank was the holder of the note and mortgage.
Our review of the record demonstrates Syphus’s affidavit was
sufficient; the O’Malleys’ default was properly authenticated; and the successor
relationship of the parties was established. Accordingly, we find that the O’Malleys’
fourth assignment of error lacks merit and is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____
RAYMOND C. HEADEN, JUDGE
MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR