U.S. Bank Natl. Assn. v. Kamal ( 2013 )

[Cite as U.S. Bank Natl. Assn. v. Kamal, 2013-Ohio-5380.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
U.S. BANK NATIONAL ASSOC., )
) CASE NO. 12 MA 189
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
KHALIL KAMAL, et al., )
)
DEFENDANTS-APPELLANTS. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 10CV2902
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Attorney Scott King
Attorney Terry Posey, Jr.
Austin Landing I
10050 Innovation Drive, Suite 400
Dayton, Ohio 45342
For Defendants-Appellants: Attorney Thomas Michaels
839 Southwestern Run
Youngstown, Ohio 44514
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 4, 2013
[Cite as U.S. Bank Natl. Assn. v. Kamal, 2013-Ohio-5380.]
VUKOVICH, J.
{¶1} Defendants-appellants Khalil Kamal and Mary Helen DeFrank-Kamal
appeal the decision of the Mahoning County Common Pleas Court granting summary
judgment and issuing a decree of foreclosure for plaintiff-appellee U.S. Bank National
Association, as Trustee for Credit Suisse First Boston Bank MBS Heat-2003-7 (U.S.
Bank). Three issues are raised. The first is whether there is a genuine issue of
material fact as to whether U.S. Bank complied with the notice of default provisions in
the note and mortgage. The second issue is whether U.S. Bank was a real party in
interest when the foreclosure complaint was filed. The third issue is whether the trial
court should have struck certain evidence that U.S. Bank used to support its request
for summary judgment. Specifically, did the trial court abuse its discretion when it did
not strike the admissions and copies of payment history that were attached to U.S.
Bank’s motion for summary judgment? Also, did it abuse its discretion when it did not
strike the portion of the Pooling and Servicing Agreement that was attached to U.S.
Bank’s reply memorandum in support of its motion for summary judgment?
{¶2} For the reasons discussed below, given the record, there are genuine
issues of material fact as to whether U.S. Bank was the holder of the note or
mortgage when the complaint was filed and as to whether U.S. Bank complied with
the default provisions in the note and mortgage. Therefore, the grant of summary
judgment in U.S. Bank’s favor is reversed and the matter is remanded for further
summary judgment proceedings. As to the summary judgment evidence attached to
U.S. Bank’s motions, it is noted that while the trial court did not abuse its discretion in
failing to strike the admission and copies of the Kamals’ payment history, it should
have struck the Pooling and Servicing Agreement.
Statement of the Case
{¶3} On September 26, 2003, Kamals signed a note for $102,000. The
lender was Aames Funding Corporation dba Aames Home Loan. The note was
secured by a mortgage on the real property located at 19 Creed Circle, Campbell,
Ohio. The mortgage was signed on September 26, 2003, but was not filed until
October 2, 2003.
-2-
{¶4} The Kamals defaulted on the note and a complaint sounding in
foreclosure was filed by U.S. Bank, who alleges to be the holder of the note and
mortgage. While the note and mortgage are attached to the complaint, neither
contain an assignment or an endorsement that would provide evidence that U.S.
Bank is the holder of the note and/or mortgage.
{¶5} After a delay, the Kamals answered the complaint. In the answer the
Kamals asserted as defenses that U.S. Bank did not have standing to bring the
action and that the notice procedures in the note and mortgage were not followed.
{¶6} Following discovery, U.S. Bank filed a motion for summary judgment
attaching documents to support its position that it is the holder of the note, that it
complied with the notice provisions in the note and mortgage and that the Kamals are
in default. The Kamals responded to that motion once again asserting that U.S.
Bank does not have standing and that the notice provisions were not complied with.
The Kamals also moved for certain documents attached to U.S. Bank’s motion for
summary judgment to be struck. U.S. Bank filed a reply in support of its motion for
summary judgment, which included attachments to support its position. The Kamals
moved to strike the attachments.
{¶7} Thereafter, the trial court granted summary judgment in U.S. Bank’s
favor and issued a decree of foreclosure. 09/20/12 J.E. It is from that judgment that
the Kamals appeal.
Assignment of Error
{¶8} “The trial court erred as a matter of law in granting summary judgment
to plaintiff-appellee (Judgment Entry Date September 19, 2012).”
{¶9} In reviewing a summary judgment award we apply a de novo standard
of review. Cole v. Am. Industries & Resources Corp., 128 Ohio App.3d 546, 552, 715
N.E.2d 1179 (7th Dist.1998). Thus, we use the same test as the trial court did, Civ.R.
56(C). That rule provides that the trial court shall render summary judgment if no
genuine issue of material fact exists and when construing the evidence most strongly
in favor of the nonmoving party, reasonable minds can only conclude that the moving
-3-
party is entitled to judgment as a matter of law. State ex rel. Parsons v. Fleming, 68
Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994).
{¶10} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis for its motion and identifying those portions of the
record that demonstrate the absence of a genuine issue of material fact. The moving
party may not make a conclusory assertion that the nonmoving party has no
evidence to prove its case. The moving party must specifically point to some
evidence which demonstrates the non-moving party cannot support its claim. If the
moving party satisfies this requirement, the burden shifts to the non-moving party to
set forth specific facts demonstrating there is a genuine issue of material fact for trial.
Vahila v. Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, 1997-Ohio-259.
{¶11} With that standard in mind, we now turn to the three arguments raised
as to why summary judgment should not have been granted in U.S. Bank’s favor.
A. Real Party in Interest
{¶12} Our analysis will begin with standing. The issue raised to this court is
whether U.S. Bank, at the time the complaint was filed, was a real party in interest.
{¶13} The Ohio Supreme Court has recently explained that standing is
required to invoke the jurisdiction of the common pleas court, and therefore it is
determined as of the filing of the complaint. Fed. Home Loan Mortgage Corp. v.
Schwartzwald, 134 Ohio St. 3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 3.
Receiving an assignment of a promissory note and mortgage from the real party in
interest subsequent to the filing of an action but prior to the entry of judgment does
not cure a lack of standing to file a foreclosure action. Id.{¶14} In the complaint, U.S. Bank asserted that it is the holder of the note.
08/02/10 Complaint, first paragraph. Attached to the complaint are the note and the
mortgage, both of which indicate that Aames Home Loan is the lender. There is no
assignment of the mortgage attached indicating that prior to the complaint being filed
U.S. Bank was assigned the mortgage. Likewise, there also is no endorsement
attached or affixed to the note indicating that U.S. Bank acquired the note from
Aames Home Loan prior to the complaint being filed. In the answer, the Kamals
-4-
twice asserted as an affirmative defense that U.S. Bank does not have standing to
bring the action.
{¶15} In the motion for summary judgment, U.S. Bank asserts that it is in
possession of the note and is entitled to enforce it and that it also was assigned the
mortgage prior to the filing of the August 2, 2010 complaint. In response to that
motion, the Kamals once again asserted the U.S. Bank does not have standing.
{¶16} In order to have standing, U.S. Bank was required to be either the
holder of the note or to have been assigned the mortgage prior to the complaint
being filed. CitiMortgage v. Loncar, 7th Dist. No. 11MA174, 2013-Ohio-2959 (being
the holder of note only at the time the complaint was filed is sufficient to have
standing); CitiMortgage, Inc. v. Patterson, 8th Dist. No. 98360, 2012-Ohio-5894, 984
N.E.2d 392 (assignment of the mortgage prior to the filing of the complaint was
sufficient to establish standing). See also Fed. Home Loan Mortgage Corp. v.
Schwartzwald, 134 Ohio St. 3d 13, 2012-Ohio-5017, 979 N.E.2d 1214.
{¶17} We will begin with the note. U.S. Bank attached the note to the motion
for summary judgment. Also attached is a document titled “Endorsement and
Assignment of Note.” The endorsement is dated September 25, 2003. It lists the
Kamals as the borrower, the 19 Creed Circle address as the property address, states
that the endorsement is for the note dated September 26, 2003 date in the amount of
$102,000. The endorsement does not state who it is assigned to; it is endorsed in
blank.
{¶18} When an instrument is endorsed in blank, the instrument becomes
payable to the bearer and may be negotiated by transfer of possession alone until
specially endorsed. R.C. 1303.25(B). Under R.C. 1303.31(A), the “holder” of a
negotiable instrument is a “[p]erson entitled to enforce” the instrument. A “holder”
includes a person who is in possession of an instrument payable to bearer. R.C.
1301.01(T)(1)(a) (This section was repealed by 2011 H.B. No. 9 and renumbered
R.C. 1301.201. Because R.C. 1301.201 only applies to transactions entered on or
after June 29, 2011, the effective date of the house bill, we apply R.C. 1301.01 in this
instance.).
-5-
{¶19} Considering the endorsement, whoever has possession of the note and
endorsement is the holder and the person entitled to enforcement. While the
endorsement is dated September 25, 2003, it is unclear when U.S. Bank took
possession of the note. Attached to U.S. Bank’s motion for summary judgment is an
affidavit from Amy K. Prophet, Vice President Loan Documentation for Wells Fargo
Bank as servicing agent for U.S. Bank. That affidavit states “Plaintiff is the holder of
the Note and Mortgage.” Prophet Affidavit ¶ 7. However, this does not indicate when
U.S. Bank became the holder of the note. Or in other words, it does not indicate
when U.S. Bank acquired possession of the note and endorsement. The fact that it is
dated September 25, 2003 does not indicate that the note was transferred to U.S.
Bank on that date. Aames may have filled out the endorsement on that date, but
retained possession of the note, i.e. it did not give U.S. Bank possession of the
endorsement and note until a later date. If that occurred, the note would not have
transferred until U.S. Bank acquired possession of it, even though an endorsement
was signed in blank.
{¶20} In some situations possibly it could be determined that the bank took
possession on the date of the endorsement. However, given the facts of this case, it
is difficult to conclude that such a thing happened here. The note was not executed
until September 26, 2003. Thus, it is difficult to conclude that U.S. Bank took
possession of the note on September 25, 2003, the day before the note’s execution.
{¶21} If September 25, 2003 is not the date that U.S. Bank took possession,
then we must look to see if there is any other evidence as to when it took possession.
The record is devoid of any other evidence stating when U.S. Bank took possession
of the note and endorsement. At this point we note that standing could easily be
established by U.S. Bank by providing through an affidavit the date that it became the
holder.
{¶22} Therefore, for all the above reasons, there is a genuine issue of
material fact as to whether U.S. Bank was holder of the note when the complaint was
filed.
-6-
{¶23} However, that does not mean that U.S. Bank did not have standing. As
aforementioned, in order to have standing, U.S. Bank, at the time the complaint was
filed, either had to be the holder of the note or have been assigned the mortgage.
Thus, since we cannot determine, from the record before us, when it became the
holder of the note, we turn our attention to the mortgage and whether U.S. Bank was
assigned the mortgage prior to filing the complaint.
{¶24} Attached to the motion for summary judgment is the mortgage that was
executed on September 26, 2003 and filed in Mahoning County on October 2, 2003.
Attached to that mortgage is an assignment of the mortgage. This assignment was
not recorded until August 30, 2010, four weeks after the complaint was filed.
However, the document was notarized on September 25, 2003. Typically an
assignment is effective on the date it is executed and not the date of recording.
Shoney's, Inc. v. Winthan Properties, Inc., 10th Dist. No. 01AP-145 (Dec. 13, 2001).
{¶25} However, this case is not typical and we cannot conclude that the
assignment was effective on the date it was notarized. The notarization occurred on
September 25, 2003, the date prior to the mortgage being executed. Furthermore,
the language of the assignment states the date the mortgage was signed, the date it
was recorded, October 2, 2003, and the volume and page number of the Official
Records of Mahoning County where it was recorded. On the date it was notarized,
September 25, 2003, that information could not have been included in the
assignment because it was not yet known. For instance, how would it be known the
date that the mortgage was recorded and what volume and page number it was
recorded on? Thus, there must have been blanks on the assignment when it was
notarized.
{¶26} Admittedly, courts have held that the debtor lacks standing to challenge
an assignment between an assignor and assignee. Bank of New York Mellon Trust
Co., v. Unger, 8th Dist. No. 97315, 2012-Ohio-1950, ¶ 31-35; Bridge v. AAMES
Capital Corp., N.D.Ohio No. 1:09 CV 2947, 2010 WL 3834059 (Sept. 28, 2010). The
basis for such a finding is that the assignment does not alter the obligations under
the note or mortgage. Unger, at ¶ 35. However, those cases are not dealing with the
-7-
situation we have here where the assignment is dated prior to the execution of the
mortgage.
{¶27} When the mortgage was assigned is necessary for determining
standing. Thus, we find that although a debtor cannot challenge the assignment, the
debtor can raise the dates of the assignment to raise an issue as to when the
assignment occurred.
{¶28} It is noted that while the dates were raised below, they were not argued
on appeal. However, considering our review is de novo, we can still consider the
dates.
{¶29} Considering the above, we cannot conclude that the record supports
the position that the mortgage was assigned on September 25, 2003. Consequently,
we must look in the record for another date which would logically make sense as to
when the mortgage was assigned. Here, the only other logical date attached to the
assignment is the date of recording. As previously indicated, that date occurs after
the complaint was filed and U.S. Bank claims that it was assigned the mortgage prior
to the filing of the complaint. Thus, we find that there is a genuine issue of material
fact as to when the mortgage was assigned.
{¶30} Consequently, given the above, we find that there is a genuine issue of
material fact whether U.S. Bank had standing when the complaint was filed.
B. Notice of Default
{¶31} In addition to the standing issues, the Kamals also contend that
summary judgment was improperly granted because there is a genuine issue of
material fact as to whether U.S. Bank complied with the notice of default and
acceleration provisions in the note and mortgage.
{¶32} Paragraph 7 of the note provides that the note holder is to send the
Kamals written notice of the default and notice telling them that if they do not pay the
overdue amount by a certain date, the note holder may accelerate the note.
Paragraph 22 of the mortgage provides similar requirements.
{¶33} Paragraph 8 of the note states that notice is given when it is either
delivered to the Kamals or when it is sent by first class mail to the Kamals’ property
-8-
address. Paragraph 15 of the mortgage further provides that any notice is deemed to
have been received when it is mailed by first class mail or when it is actually
delivered to the Kamals’ notice address if sent by other means.
{¶34} U.S. Bank contends that there is no genuine issue of material fact
because it did comply with the notice terms in the contract and there is evidence of
that compliance in its motion for summary judgment and in its response to the
Kamals motion in opposition to summary judgment.
{¶35} In the motion for summary judgment, U.S. Bank argued that all of the
Kamals’ affirmative defenses fail as a matter of law. This argument was made in
partial response to the sixth defense asserted in the Kamals’ answer, which was that
U.S. Bank failed to follow the necessary notice provisions. Furthermore, attached to
U.S. Bank’s motion for summary judgment is an affidavit from Amy K. Prophet, Vice
President Loan Documentation for Wells Fargo Bank as servicing agent for U.S.
Bank. Paragraph 8 of that affidavit states that U.S. Bank “or its agent has
accelerated the account, pursuant to the terms of the Loan.” Also attached to the
affidavit and incorporated by reference is the notice of default and acceleration letter
that was addressed to the Kamals. U.S. Bank asserts that this is evidence that it
complied with the notice provisions in the note and mortgage.
{¶36} In the motion in opposition to summary judgment, the Kamals argued
that they did not receive the notice of default. Attached to that motion is an affidavit
averring that Khalil Kamal did not receive the notice of default and acceleration.
Kamal Affidavit ¶ 12.
{¶37} U.S. Bank responded to the motion in opposition and asserted that the
information in the Prophet affidavit and the notice of default and acceleration letter
that was attached to its initial summary judgment motions were sufficient to establish
that the terms of the note and mortgage were complied with.
{¶38} The parties’ arguments present us with the following issue: Did the
Kamals specific averment in the motion in opposition to summary judgment that they
did not receive notice of the default and acceleration create a genuine issue of
-9-
material fact that shifted the burden to U.S. Bank to show specific compliance with
those notice provisions?
{¶39} Given the facts of this case and the specific provisions at issue, we
answer that question in the affirmative. Once the Kamals asserted that they did not
receive the notice of default and acceleration, a genuine issue of material fact was
created to as to whether U.S. Bank complied with the notice provisions. The contract
language specifically indicates that notice is deemed received if (1) it is sent by first
class mail or (2) if sent by other means it is actually delivered. By claiming that they
did not receive the notice, the Kamals are suggesting that the notice was not sent by
first class mail or was not actually delivered to them.
{¶40} To resolve this issue of material fact, U.S. Bank had to either: (1)
indicate that the notice was sent by first class mail or (2) show actual delivery. U.S.
Bank did neither. Instead it made a blank statement that it complied with the notice
provisions; the affidavit does not even use the word “mailed” or “served” when
referencing the notice letter. The notice letter was attached to the motion for
summary judgment and was incorporated through a properly framed affidavit. That
letter is dated May 30, 2010. There is a bar code on the top of that letter, however,
there is no indication whether that bar code represents an internal tracking
mechanism for U.S. Bank or if it is a tracking number for the United States Postal
Service. As such, we are unable to discern what this bar code means.
Consequently, we must conclude that the evidence provided by U.S. Bank is not
sufficient to dispel the issue of fact, because it does not show what means was used
to send the notice.
{¶41} It is necessary in this instance to show the means used because if the
notice was sent by other means, actual delivery is required. The sworn statement in
U.S. Bank’s Prophet affidavit that the terms of the note were complied with would not
resolve the issue of whether actual delivery was accomplished. As aforementioned
the Kamals avowed that they did not receive the notice. Therefore, if U.S. Bank’s
compliance with the terms of the notice provisions was through actual delivery,
-10-
clearly there is a genuine issue of material fact. This is why U.S. Bank was required
to provide evidence of the means used to send the notice.
{¶42} At this point we note that if the notice was sent first class mail, U.S.
Bank was not required to establish that the Kamals actually received it. Only if the
notice is sent by other means is U.S. Bank required to establish that the Kamals
received it. It would have been fairly easy for U.S. Bank to indicate if the notice was
sent first class mail. Such statement could have been avowed in an affidavit.
Likewise, if actual delivery was the means used, the genuine issue of material fact
could most likely been dispelled by indicating the means used and showing evidence
of receipt. This is not an onerous requirement for U.S. Bank.
{¶43} Therefore, for those reasons we also find that there is a genuine issue
of material fact as to whether the notice provisions were complied with.
C. Summary Judgment Evidence
{¶44} The last complained of issue in this case has to do with appropriate
summary judgment evidence. U.S. Bank attached evidence to its motion for
summary judgment and its reply to the Kamals motion in opposition to summary
judgment. The Kamals moved to strike some of that evidence because it allegedly
did not comport with Civ.R. 56(C). Specifically, the Kamals moved to strike the
admissions and computer print-outs of the payment history that was attached to the
motion for summary judgment. It also moved to strike the portion of a Pooling and
Servicing Agreement that was attached to U.S. Bank’s reply to the Kamals’ motion in
opposition. The trial court did not rule on the motions to strike, however, it did issue a
decree of foreclosure. Thus, in essence, the trial court denied the motions.
{¶45} A trial court's decision to grant or deny a motion to strike is within its
sound discretion and will not be overturned on appeal unless the trial court abuses its
discretion. Douglass v. Salem Cmty. Hosp., 153 Ohio App. 3d 350, 358, 2003-Ohio-
4006, 794 N.E.2d 107, ¶ 20. An abuse of discretion constitutes more than an error of
law or judgment; it implies that the trial court acted unreasonably, arbitrarily, or
unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
-11-
{¶46} Civ.R. 56(C) provides that proper summary judgment is the “pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact.” If the evidence produced in support of
summary judgment does not fit into one of those categories, then that evidence must
be incorporated through a properly framed affidavit pursuant to Civ.R. 56(E).
Citibank v. McGee, 7th Dist. No. 11MA158, 2012–Ohio–5364, ¶ 14, citing Martin v.
Central Ohio Transit Auth., 70 Ohio App.3d 83, 89, 590 N.E.2d 411 (1990). If the
evidence is not incorporated through a properly framed affidavit, it is not proper
summary judgment evidence and will not be considered. The incorporation
requirement is met “by attaching the papers to the affidavit with a statement in the
affidavit that the copies are true and accurate reproductions.” McGee, ¶ 14, citing
State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981).
{¶47} With those standards in mind, we will now address the alleged improper
evidence.
1. Admissions
{¶48} During discovery, U.S. Bank filed a Civ.R. 36 request for admissions.
The Kamals responded to this request and admitted some facts and denied some
facts. When U.S. Bank filed its motion for summary judgment, it relied on some of the
admissions and attached the admissions to the motion. The Kamals assert that
these admissions are not proper summary judgment evidence because it is not
authenticated by U.S. Bank’s counsel or the Prophet affidavit.
{¶49} This argument is meritless. Civ.R. 56(C) and case law clearly indicates
that written admissions are proper summary judgment evidence and, as such, do not
need to be incorporated through a properly framed affidavit. These admissions fit
under that category. They are clearly written admissions that were made in response
to U.S. Bank’s request for admission. The title of the document is “Defendants Khalil
I. Kamal and Mary Helen DeFrank-Kamal Responses to Plaintiff’s Request for
Admissions.” The last page of the document also contains a certificate of service
indicating that these admissions were sent by the Kamals’ attorney to U.S. Bank’s
attorney. Therefore, there is no basis for striking these admissions and the trial court
-12-
could properly consider these admissions when determining whether summary
judgment should have been granted.
2. Payment History
{¶50} Also attached to U.S. Bank’s motion for summary judgment are
computer printouts of the Kamals’ payment history. These documents were attached
to the Prophet affidavit and incorporated by stating, “[a]ttached as exhibits hereto are
duplicate, true and accurate copes of * * * Payment History (Exhibit “E”) * * * as they
appear in Wells Fargo’s Bank, N.A. business records.” Prophet Affidavit ¶ 10. The
Prophet affidavit also provides that Prophet is the vice-present of loan documentation
for Wells Fargo Bank as the serving agent for U.S. Bank and that the affidavit is
based upon her personal knowledge obtained from her personal review of the
business records for the loan that is the subject of this action. Prophet Affidavit ¶ 1
and 4.
{¶51} Pursuant to our decision in McGee, the payment history was properly
incorporated through the Prophet affidavit. Therefore, there is no basis to strike the
payment history and the trial court could properly consider it when determining
whether to grant U.S. Bank summary judgment.
3. Pooling and Servicing Agreement
{¶52} U.S. Bank attached a portion of a Pooling and Servicing Agreement to
its reply to the Kamals’ motion in opposition to summary judgment. This document is
not incorporated through an affidavit. However, U.S. Bank asserts that this document
is on a government website and the trial court was permitted to take judicial notice of
it.
{¶53} While it may be true that this document is on a government website, it
still is not proper summary judgment evidence. Our sister district has explained that
documents from the Ohio Bureau of Workers' Compensation and the Ohio Industrial
Commission websites are not proper summary judgment evidence when they are not
properly incorporated through an affidavit. It explained:
Civ.R. 56(C) places strict limitations upon the type of
documentary evidence that a party may use in support of or in
-13-
opposition to summary judgment. Documents merely attached to a
summary judgment motion, even though allegedly certified as official
records, are not cognizable. Bass–Fineberg Leasing, Inc. v. Keller, 8th
Dist. No. 96107, 2011–Ohio–3989, ¶ 11, citing Spier v. Am. Univ. of the
Caribbean, 3 Ohio App.3d 28, 29, 443 N.E.2d 1021 (1st Dist.1981). If a
document does not fall within one of the categories of evidence listed in
Civ.R. 56(C), it can only be introduced as proper evidentiary material
when it is incorporated by reference in a properly framed affidavit
pursuant to Civ.R. 56(E). Biskupich v. Westbay Manor Nursing Home,
33 Ohio App.3d 220, 222, 515 N.E.2d 632 (8th Dist.1986).
***
Under Evid.R. 201, a court may take judicial notice of an
adjudicative fact that is “not subject to reasonable dispute in that it is
either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.” It is
impossible to determine the credibility and reliability of documents
purportedly printed from a website. The reliability of such documents is
questionable, unless verified by a sworn affidavit. In Rude v. NUCO
Edn. Corp., 9th Dist. No. 25549, 2011–Ohio–6789, ¶ 16, the court held
that it could not take judicial notice of facts posted on a website
because it “did not supply the information in a manner that allows for
judicial notice of a discrete fact without further inquiry.” Therefore, the
trial court properly disregarded Lebron's unverified documents.
Lebron v. A & A Safety, Inc., 8th Dist. No. 96976, 2012-Ohio-1637, ¶ 8, 11.
{¶54} Finding that analysis persuasive, we hold that the Pooling and Servicing
Agreement, which is allegedly from a government website but not properly
incorporated through an affidavit, is not proper summary judgment evidence. The
trial court should have struck this evidence.
-14-
CONCLUSION
{¶55} In conclusion, the trial court’s grant of summary judgment is reversed
and the matter is remanded for further summary judgment proceedings. Specifically,
given the facts of this case there are genuine issues of material facts as to whether
U.S. Bank had standing at the time the complaint was filed and as to whether U.S.
Bank complied with the notice provisions in the note and mortgage. That said, we
find that the trial court correctly did not strike the admissions and the payment history
attached to U.S. Bank’s motion for summary judgment; those items were proper
summary judgment evidence. The Pooling and Servicing Agreement, however, was
not proper summary judgment evidence and should have been struck.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.