Bank of New York Mellon v. Bobo , 2015 Ohio 4601 ( 2015 )

[Cite as Bank of New York Mellon v. Bobo, 2015-Ohio-4601.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
THE BANK OF NEW YORK MELLON FKA :
THE BANK OF NEW YORK AS SUCCESSOR :
IN INTEREST TO JPMORGAN CHASE BANK, :
NATIONAL ASSOCIATION, AS TRUSTEE :
FOR C-BASS MORTGAGE LOAN ASSET- :
BACKED CERTIFICATES, SERIES 2003-CB4, :
:
Plaintiff-Appellee, :
: Case No. 14CA22
v. :
: DECISION AND
ELIZABETH BOBO, ET AL., : JUDGMENT ENTRY
:
Defendants-Appellants. : RELEASED 10/29/2015
APPEARANCES:
Elizabeth Bobo and Marilyn Bobo, Athens, Ohio, pro se appellants.1
Bryan T. Kostura and James S. Wertheim, McGlinchey Stafford, Cleveland, Ohio, for appellee.
Hoover, P.J.
{¶ 1} In this foreclosure action Elizabeth and Marilyn Bobo appeal the decision of the
Athens County Court of Common Pleas to grant The Bank of New York Mellon f/k/a The Bank
of New York as Successor in Interest to JPMorgan Chase Bank, National Association, as Trustee
for C-Bass Mortgage Loan Asset-Backed Certificates, Series 2003-CB4 (“BONY”) summary
judgment. For the following reasons, we affirm the judgment of the trial court.
I. Factual and Procedural Background
1
Attorney Bruce M. Broyles, Boardman, Ohio, briefed the issues for appeal. However, Attorney Broyles sought,
and we granted, a motion to withdraw as counsel following submission of the appellate brief.
Athens App. No. 14CA22 2
{¶ 2} In April 2003, New Century Mortgage Corporation (“New Century”) loaned
Elizabeth Bobo $102,000; and she executed a note promising to repay that principal balance plus
interest. The note was secured by a mortgage on real property located in Athens County, Ohio.
The mortgage was executed by both Elizabeth and Marilyn Bobo (hereinafter “appellants”). New
Century assigned the mortgage to another entity in May 2003, which subsequently assigned it to
BONY on February 20, 2008. A corrective assignment of mortgage was executed on February
12, 2013, to correct the name of the assignee (i.e. BONY) on the February 20, 2008 assignment
of mortgage. The assignments were recorded.
{¶ 3} On April 15, 2013, BONY filed a complaint in foreclosure against the appellants,
and others not party to this appeal, alleging that it was a person entitled to enforce the note and
that appellants were in default on the note and mortgage. Copies of the promissory note, the
mortgage, and the mortgage assignments were filed with the complaint. The copy of the
promissory note attached to the complaint contained an undated and blank endorsement by New
Century. Additionally, the copy of the mortgage attached to the complaint contained a
handwritten portion adding “Marilyn I. Bobo, an unmarried woman” as a borrower, and was
initialed by both appellants on each page and initialed under the handwritten text adding Marilyn
Bobo as a borrower.
{¶ 4} The appellants filed an answer, affirmative defenses, and counterclaims on June 17,
2013.
Athens App. No. 14CA22 3
{¶ 5} Subsequently, in early 2014, appellants were allegedly presented in response to a
discovery request, an undated allonge purporting to transfer the promissory note from New
Century to BONY.2
{¶ 6} On February 28, 2014, BONY filed a motion for summary judgment. In support of
the motion, BONY attached the affidavit of Lori Ann Dasch (“Dasch”), an employee for Ocwen
Loan Servicing, LLC (“Ocwen”), the company servicing the mortgage loan and business records.
In the affidavit, Dasch averred that she was an employee of Ocwen, and that in the performance
of her job functions she has access to and is familiar with Ocwen’s business records relating to
the servicing of the mortgage loan at issue in the case. Dasch stated, inter alia, that the appellants
were in default on the note and mortgage, and owed $96,317.39, together with interest at the rate
of 10.5 percent per year from July 1, 2011, plus advances for taxes and insurance. She also
averred that notices of default, “true and accurate” copies of which were attached to the affidavit,
were mailed to appellant Elizabeth Bobo on November 2, 2011, in accordance with the note and
mortgage. Attached to the affidavit were copies of the note, the mortgage, the assignments of
mortgage, the corrective assignment of mortgage, a payment history, and the notices of default
mailed to both the address of the mortgaged property and to the P.O. Box that appellants used in
their answer to the foreclosure complaint.
{¶ 7} The appellants filed a 96-page memorandum contra to summary judgment on
March 14, 2014. The memorandum contra was supported by affidavits from both appellants and
by other attached exhibits. Shortly thereafter, BONY filed its reply brief in support of its motion
for summary judgment. On April 29, 2014, the trial court entered a decision granting summary
2
A photograph of the undated allonge was attached to appellants’ memorandum contra to summary judgment as
Exhibit A. A copy of the allonge was not attached to BONY’s complaint or to BONY’s summary judgment
materials.
Athens App. No. 14CA22 4
judgment to BONY on its foreclosure complaint. An amended judgment entry was subsequently
filed on May 5, 2014, granting summary judgment and a decree of foreclosure in favor of
BONY. The amended judgment entry also dismissed appellants’ counterclaims and added “no
just reason for delay” language. Appellants filed a notice of appeal, contesting the trial court’s
order granting summary judgment to BONY on its complaint in foreclosure.
II. Assignments of Error
{¶ 8} The appellants assert the following assignments of error for our review:
First Assignment of Error:
The trial court erred in granting summary judgment to Appellee when there were
genuine issues of material fact still in dispute.
Second Assignment of Error:
The trial court erred in granting summary judgment to Appellee based upon the
affidavit of Lori Ann Dasch.
Third Assignment of Error:
The trial court erred in granting summary judgment when there was a genuine
issue of material fact regarding Appellants Elizabeth L. Bobo and Marilyn Bob’s
[sic] receipt of the notice of default and notice of acceleration, and regarding
Appellee’s fulfillment of the condition precedent.
III. Standard of Review
{¶ 9} We review the trial court’s decision on a motion for summary judgment de novo.
Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. Accordingly, we
afford no deference to the trial court’s decision and independently review the record and the
inferences that can be drawn from it to determine whether summary judgment is appropriate.
Harter v. Chillicothe Long-Term Care, Inc., 4th Dist. Ross No. 11CA3277, 2012-Ohio-2464, ¶
12; Grimes v. Grimes, 4th Dist. Washington No. 08CA35, 2009-Ohio-3126, ¶ 16.
Athens App. No. 14CA22 5
{¶ 10} Summary judgment is appropriate only when the following have been established:
(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to
judgment as a matter of law; and (3) that reasonable minds can come to only one conclusion, and
that conclusion is adverse to the nonmoving party. Civ.R. 56(C); DIRECTV, Inc. v. Levin, 128
Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 15. In ruling on a motion for summary
judgment, the court must construe the record and all inferences therefrom in the nonmoving
party’s favor. Civ.R. 56(C). The party moving for summary judgment bears the initial burden to
demonstrate that no genuine issues of material fact exist and that they are entitled to judgment in
their favor as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264(1996). To meet its burden, the moving party must specifically refer to “the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence,
and written stipulations of fact, if any, timely filed in the action,” that affirmatively demonstrate
that the nonmoving party has no evidence to support the nonmoving party’s claims. Civ.R.
56(C); Dresher at 293. Moreover, the trial court may consider evidence not expressly mentioned
in Civ.R. 56(C) if such evidence is incorporated by reference in a properly framed affidavit
pursuant to Civ.R. 56(E). Discover Bank v. Combs, 4th Dist. Pickaway No. 11CA25, 2012-Ohio-
3150, ¶ 17; Wagner v. Young, 4th Dist. Athens No. CA1435, 1990 WL 119247, *4 (Aug. 8,
1990). Once that burden is met, the nonmoving party then has a reciprocal burden to set forth
specific facts to show that there is a genuine issue for trial. Dresher at 293; Civ.R. 56(E).
IV. Law & Analysis
{¶ 11} Appellants’ assignments of error are interrelated, in that they each contend that the
trial court erred in granting summary judgment in favor of BONY on its foreclosure claim
Athens App. No. 14CA22 6
asserted against them. Accordingly, we will address the assignments of error jointly. Together,
the assignments of error raise seven issues for review.
A. The Appellants’ Affidavits
{¶ 12} First, the appellants contend that their affidavits in opposition to the motion raised
a genuine issue of material fact about whether BONY was in possession of the original
promissory note and mortgage. The affidavits state that when the appellants inspected the alleged
original note and mortgage, they discovered that their signatures were not authentic and that
handwritten notations were allegedly added to the mortgage after it was executed by the parties.
{¶ 13}3 “Mere speculation and unsupported conclusory assertions are not sufficient” to
meet the nonmovant's reciprocal burden under Civ.R. 56(E) to withstand summary judgment.
Loveday v. Essential Heating Cooling & Refrig., Inc., 4th Dist. Gallia No. 08CA4, 2008–Ohio–
4756, ¶ 9. A self-serving affidavit that is not corroborated by any evidence is insufficient to
establish the existence of an issue of material fact. Wells Fargo Bank v. Blough, 4th Dist.
Washington No. 08CA49, 2009–Ohio–3672, ¶ 18; Deutsche Bank Natl. Trust Co. v. Doucet,
10th Dist. Franklin No. 07AP–453, 2008–Ohio–589, ¶ 13 (“We also find that Doucet's self-
serving affidavit, which was not corroborated by any evidence, is insufficient to establish the
existence of material issues of fact.”). “ ‘To conclude otherwise would enable the nonmoving
party to avoid summary judgment in every case, crippling the use of Civ.R. 56 as a means to
facilitate the early assessment of the merits of claims, pre-trial dismissal of meritless claims and
defining and narrowing issues for trial.’ ” [Internal quotations omitted.] Blough at ¶ 18, quoting
3
We note that several of appellants’ arguments in support of their appeal are nearly identical to arguments raised by
appellant Elizabeth Bobo in the similar and recently decided case of U.S. Bank Natl. Assn. v. Bobo, 4th Dist. Athens
No. 13CA45, 2014-Ohio-4975. Because of the similarities of the cases, and because the same panel of judges
decided the appeal in U.S. Bank Natl. Assn. v. Bobo, where appropriate we have adopted the language and analysis
of our prior decision with slight modification.
Athens App. No. 14CA22 7
McPherson v. Goodyear Tire & Rubber Co., 9th Dist. Summit No. 21499, 2003–Ohio–7190, ¶
36.
{¶ 14} Here, appellants claim that the promissory note and the mortgage held by BONY
did not contain their authentic signatures. However, appellants submitted no corroborating
summary judgment evidence to support that claim. Appellant Elizabeth Bobo’s affidavit
mentions that when she inspected and compared what BONY claimed were the original note and
mortgage during the litigation to the copies she received at closing, she determined that her
signature was not authentic because, inter alia, she is an expert in her own handwriting and
because the blue ink was a different shade of blue than the ink used at closing. Likewise,
appellant Marilyn Bobo’s affidavit mentions that when she inspected and compared what BONY
claimed was the original mortgage during litigation to the copy she received at closing, she
determined that it was not authentic because, inter alia, the mortgage contained handwritten
notations that were not allegedly present when she signed the mortgage at closing. However,
neither Marilyn nor Elizabeth attached to their affidavit any of the copies they claimed to
compare to the alleged originals inspected.
{¶ 15} The Tenth District Court of Appeals rejected a similar argument in Fifth Third
Bank v. Jones–Williams, 10th Dist. Franklin No. 04AP–935, 2005–Ohio–4070, ¶¶ 28–29:
In the Jones affidavit, appellant E. Paul Jones asserted that the promissory note
and the mortgage “do not bear the bona fide signatures of E. Paul Jones and
Deborah A. Jones–Williams.” (Jones' Aff. ¶ 5.) Appellants did not present any
additional evidence, other than this self-serving affidavit, in support of their
argument that their signatures on the note and the mortgage were forged. For
Athens App. No. 14CA22 8
example, appellants could have provided affidavits from non-expert witnesses
who were familiar with their handwriting or an expert who could attest to the
authenticity of their signatures. See Evid.R. 901. * * *
Based on the foregoing, we find appellants have not satisfied their reciprocal
burden as the nonmoving party to identify evidence to demonstrate that any
genuine issue of material fact regarding the validity of appellants' signatures must
be preserved for trial.
{¶ 16} Likewise, we conclude that in the absence of corroborating evidence, appellants’
self-serving affidavits challenging the authenticity of the note and mortgage held by BONY did
not raise a genuine issue of material fact precluding summary judgment. Notably, appellants
admit that they “do not dispute that they signed a promissory note.” We reject appellants’ first
contention.
B. The Alleged Separation of the Note and Mortgage
{¶ 17} Next, the appellants contend that the trial court erred in granting summary
judgment in favor of BONY because genuine issues of material fact remained about whether the
promissory note and mortgage were separated thus rendering any transfer of the mortgage void.
Appellants rely on: (1) the allonge, which purported to negotiate the promissory note to BONY
sometime during or after 20114; and (2) the assignments of mortgage, transferring the mortgage
to the intermediate entity in May 2003, and then to BONY on February 20, 2008. According to
4
The undated allonge purporting to negotiate the promissory note from New Century to BONY was executed by
Ocwen, as New Century’s attorney-in-fact. Appellants also provided a document attached to their memorandum
contra purporting to establish that servicing rights of the loan were transferred to Ocwen on September 1, 2011. [See
Memorandum Contra, Ex. C.] Thus, appellants contend that the earliest that the allonge could have been executed
was September 1, 2011.
Athens App. No. 14CA22 9
appellants, these documents raise an issue regarding whether the note and mortgage were
separated, with the note belonging to New Century until at least September 2011, and the
mortgage being owned by the intermediate entity from May 2003 until February 2008, and then
by BONY from 2008 and beyond.
{¶ 18} As an initial matter, we note that there is a potential issue about whether the
appellants have standing to attack the validity of the transfer of the note and mortgage. “[A]
defendant borrower in a foreclosure action lack[s] standing to challenge the validity of an
assignment of a note and mortgage the borrower had executed where no dispute existed as to the
fact that the borrower had defaulted on her payment obligations.” See JPMorgan Chase Bank,
N.A. v. Romine, 10th Dist. Franklin No. 13AP-58, 2013-Ohio-4212, ¶ 16, citing LSF6 Mercury
REO Invs. Trust Series 2008-1 v. Locke, 10th Dist. Franklin No. 11AP-757, 2012-Ohio-4499, ¶
29 (“The assignee bank filed the foreclosure complaint based on the homeowners’ default under
the note and mortgage, not because of the mortgage assignments, and the homeowners’ default
exposed them to foreclosure regardless of which party actually proceeded with foreclosure”),
appeal not allowed, 134 Ohio St.3d 1470, 2013-Ohio-553, 983 N.E.2d 369; see also Bank of New
York Mellon v. Froimson, 8th Dist. Cuyahoga No. 99443, 2013-Ohio-5574, ¶ 18, and cases cited
therein (“the legal principle applied * * * – that a debtor may not challenge a mortgage
assignment between an assignor and an assignee because the debtor is not a party to the
assignment – has been applied in foreclosure actions in this district and in other courts applying
Ohio law”).
{¶ 19} Under cases like Romine, supra, and LSF6, supra, appellants would lack standing
to attack the validity of the transfer of the note and mortgage. But the Tenth District Court of
Appeals subsequently limited its holding in those cases so that in cases where R.C. Chapter 1303
Athens App. No. 14CA22 10
applies, a debtor may challenge the assignment of a note if such a challenge fits the criteria of a
denial, defense, or claim in recoupment as outlined in R.C. 1303.36 or 1303.35. Bank of
America, N.A. v. Pasqualone, 10th Dist. Franklin No. 13AP-87, 2013-Ohio-5795, ¶ 35; see also
Luper Neidenthal & Logan v. Albany Station, LLC, 10th Dist. Franklin No. 13AP-651, 2014-
Ohio-2906, ¶ 13.
{¶ 20} Nevertheless, regardless of whether appellants lack standing to raise these
contentions, we note that BONY has always maintained that its right to enforce the note was
based on its possession of the note endorsed in blank; as opposed to the undated allonge
referenced by appellants. New Century endorsed the note in blank; and Dasch stated that, as of
the date of the complaint, BONY possessed the note with the blank endorsement. An
authenticated copy of the note with the blank endorsement was attached to the Dasch affidavit.
Such evidence sufficed to show that the note was properly negotiated to BONY. See R.C.
1303.25(B) (“When an instrument is indorsed in blank, [i.e., it does not identify the payee,] the
instrument becomes payable to bearer and may be negotiated by transfer of possession alone * *
*.”).
{¶ 21} We also note that appellants fail to substantiate their claim that a separation of the
note and mortgage would render any transfer of the mortgage void. Appellants cite Bank of New
York v. Dobbs, 5th Dist. Knox No. 2009–CA–000002, 2009–Ohio–4742, ¶¶ 28, 38, claiming that
it stands for the proposition that “[t]he transfer of the mortgage without the transfer of the note
renders the mortgage invalid.” [Appellants’ Brief, pp. 11-12.] However, Dobbs does not stand
for such proposition. Rather, Dobbs reiterates the principle that the transfer of the instruments
separately does not sever the two and recognizes that the transfer of one implies the transfer of
the other. Id. at ¶¶ 28-29. Meanwhile, paragraph 38 of Dobbs addresses the effect of an attempt
Athens App. No. 14CA22 11
to assign a note as opposed to transferring it through negotiation. The Dobbs court notably
affirmed summary judgment in favor of the lender. Id. at ¶ 54.
{¶ 22} Further, both the note and the mortgage refer to each other. See Note, p. 3 (“In
addition to the protections given to the Note Holder under this Note, a Mortgage * * * dated the
same date as this Note, protects the Note Holder from possible losses that might result if I do not
keep the promises that I make in this Note.”); Mortgage, p. 2 (“ ‘Note’ means the promissory
note signed by Borrower and dated April 25, 2003. The Note states that Borrower owes Lender
One Hundred Two Thousand and No/100 Dollars (U.S. $ 102,000.00) plus interest. * * *.”).
Thus, the first assignment of mortgage in which New Century expressly assigned the mortgage
to the intermediate party also sufficed to transfer the note to the intermediate party. See Dobbs at
¶¶ 31, 36 (holding that the assignment of a mortgage, without an express transfer of the note, is
sufficient to transfer both the mortgage and the note, if the mortgage refers to the note and the
note in turn refers to the mortgage). Furthermore, the first assignment of mortgage also included
an express transfer of the note; further indicating that the mortgage and note were transferred
together. For the same reasons, the second assignment of mortgage, documenting a transfer
between the intermediate party and BONY, also evidences a transfer of both the mortgage and
the note. Thus, BONY was not required to show a separate transfer of the note from New
Century to the intermediate party and from the intermediate party to BONY.
{¶ 23} Accordingly, and contrary to appellants’ argument, no genuine issue of material
fact existed regarding whether the note and mortgage were separated. And even if the two
instruments were separated, appellants have failed to properly support their proposition that the
transfer of the mortgage without the transfer of the note would render the mortgage invalid.
Appellants’ separation argument is without merit.
Athens App. No. 14CA22 12
C. Robo-Signing and Notarization
{¶ 24} The appellants next contend that summary judgment was not proper because their
affidavits and other summary judgment evidence indicated that the blank endorsement on the
promissory note was executed by an alleged robo-signer5, and because the first assignment of
mortgage was notarized by Maris G. Carrasco of Orange County, California, but that no notary
journal is found for Maris G. Carrasco within the Orange County, California records. Appellants
argue that the alleged improprieties create a genuine issue of material fact regarding whether the
note and mortgage were properly transferred.
{¶ 25} BONY counters that the appellants lack standing to raise claims of improper robo-
signing and notarization. See Chase Home Fin., LLC v. Heft, 3d Dist. Logan Nos. 8-10-14, 8-11-
16, 2012-Ohio- 876, ¶¶ 35-37 (In rejecting appellant’s argument in support of a Civ.R. 60(B)
motion that the assignment of mortgage was executed by a known robo-signer and was not
properly notarized, the appellate court held that “since [appellant] was not a party to the
assignment of mortgage, he lacks standing to challenge its validity * * *.”).
{¶ 26} Appellants’ evidence in support of their allegation that the promissory note
endorsement was robo-signed consists of their own comparison of the New Century
representative’s signature and the “drastic changes” of the signature between the blank
endorsement and the representative’s signature on the first assignment of mortgage. [See
Memorandum Contra, Ex. M.] Appellants support their improper notarization argument with a
certified letter from the Orange County, California recorder’s office, noting that a notary journal
5
“ ‘Robo-signing’ occurs when bank employees tasked with rapidly signing large numbers of affidavits and legal
documents * * * sign such documents without actually checking them to ensure their accuracy.” Chase Home Fin.,
LLC v. Heft, 3d Dist. Logan Nos. 8-10-14, 8-11-16, 2012-Ohio- 876, ¶ 22, fn. 4, citing Ohio v. GMAC Mtge., LLC,
760 F.Supp.2d 741, 743 (N.D.Ohio 2011).
Athens App. No. 14CA22 13
for Carrasco could not be found after a diligent search of the records; and a notation to an
unverified website alleging that Carrasco is a known robo-signer. [See Memorandum Contra, Ex.
M.]
{¶ 27} However, appellants have not claimed that they or anyone else has personal
knowledge that robo-signing occurred in the instant case. Even if the individuals are known
robo-signers, as appellants allege, evidence of robo-signing in other cases does not establish that
robo-signing occurred in the instant case. See Heft at ¶ 37 (rejecting appellant’s argument that his
mortgage documents may have been robo-signed as speculative, in part, because bank
employee’s admission that she robo-signed some mortgage foreclosure documents did not prove
that his particular mortgage foreclosure documents were robo-signed); Bank of Am., N.A. v.
McLaughlin, 6th Dist. Erie No. E-11-057, 2012-Ohio-2341, ¶ 19 (“[A]lthough appellant attached
and referenced several news articles and cases where the affiant allegedly robo-signed affidavits
in other cases, she presented no evidence that it occurred in this case.”).
{¶ 28} Because appellants’ allegations of robo-signing were speculative, and because the
evidence does not demonstrate that robo-signing occurred in this case, we cannot say that a
genuine issue of material fact precludes summary judgment on this basis. Moreover, appellants
lack standing to challenge the validity of the note endorsement and notarization of the
assignment of mortgage for the reasons stated above. Accordingly, appellants’ robo-signing and
notarization argument lacks merit; and we reject it.
D. Allonge and Bankruptcy
{¶ 29} The appellants next contend that summary judgment was not appropriate because
their summary judgment evidence indicated that an allonge to the original promissory note raised
Athens App. No. 14CA22 14
a genuine issue of material fact about whether the note was transferred to BONY by New
Century after New Century had filed for bankruptcy and after an Ohio Common Pleas Court had
confirmed a settlement agreement between New Century and the Ohio Attorney General’s Office
that permanently enjoined New Century from transferring, selling, or assigning rights to any
Ohio residential mortgage loan absent prior court approval. As previously noted, a potential issue
exists about whether the appellants have standing to attack the validity of the transfer of the note.
See Romine, 10th Dist. Franklin No. 13AP-58, 2013-Ohio-4212, ¶ 16, as modified by
Pasqualone, 10th Dist. Franklin No. 13AP-87, 2013-Ohio-5795, ¶ 35.
{¶ 30} Nevertheless, the allonge was irrelevant because BONY had possession of the
original promissory note endorsed in blank by New Century at the time it filed its complaint in
foreclosure. “An entity which possesses a note indorsed in blank is a holder entitled to enforce
the note.” Pasqualone at ¶ 35, fn. 14; Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist.
Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 62. Therefore, even assuming that appellants had the
requisite standing to raise this claim, the claim is meritless.
E. The Pooling and Servicing Agreement
{¶ 31} Next, appellants claim that portions of the pooling and service agreement
(“PSA”), governing the trust in which BONY is trustee, and attached to their summary judgment
materials, raised genuine issues of material fact about whether the promissory note and mortgage
were properly assigned to BONY. They base that claim upon the contention that the note and
mortgage “were attempted to be transferred to the Trust after the closing date and in a manner
that was in violation of the Trust’s governing documents.” [See Appellants’ Brief, p. 15.]
Athens App. No. 14CA22 15
{¶ 32} Again, regardless of whether the appellants lack standing to raise these
contentions, “[w]hether * * * the parties to the PSA failed to comply with the terms of the PSA is
irrelevant to [the bank’s] standing as the holder of the note. By virtue of its possession of the
note endorsed in blank, [the bank] was the holder of the note and entitled to enforce the note
under Ohio law. See R.C. 1301.01(T)(1) and 1303.31(A)(1).” Najar at ¶ 62. Because BONY
submitted a copy of the original note endorsed in blank with its complaint and attached to the
Dasch affidavit, appellants’ defense of an invalid assignment, which essentially contends that
BONY does not own the instruments, is irrelevant. Because BONY is a person entitled to
enforce the instruments, the alleged noncompliance with the PSA does not subject the appellants
to the risk of having to pay twice for the same debt. See Froimson, 8th Dist. Cuyahoga No.
99442, 2013-Ohio-5574, at ¶ 23; see also generally, Pasqualone.
{¶ 33} Therefore, appellants’ claims challenging the propriety of the assignment of the
note and mortgage did not preclude summary judgment in the bank’s favor.
F. The Dasch Affidavit
{¶ 34} Appellants next assert that the trial court erred in relying on the affidavit of Dasch,
an “Authorized Signer” for Ocwen, which serviced the mortgage loan at issue. Specifically,
appellants claim that Dasch’s affidavit does not demonstrate personal knowledge of the pertinent
facts as required by Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. Stark No. 2010-CA-
00291, 2011-Ohio-3202, because: (1) the affidavit does not attach the business records upon
which she relies; and (2) she does not state that she had an opportunity to review the original
promissory note and compare it to the copy.
Athens App. No. 14CA22 16
{¶ 35} We recently set forth the applicable rules governing the Civ.R. 56(E) requirement
that an affidavit be made on personal knowledge:
“To be considered in a summary judgment motion, Civ.R. 56(E) requires an
affidavit to be made on personal knowledge, set forth such facts as would be
admissible in evidence, and affirmatively show that the affiant is competent to
testify to the matters stated in the affidavit.” Fifth Third Mtge. Co. v. Bell, 12th
Dist. Madison No. CA2013–02–003, 2013–Ohio–3678, ¶ 27, citing Civ.R. 56(E);
see also Wesley v. Walraven, 4th Dist. Washington No. 12CA18, 2013–Ohio–473,
¶ 24. “ ‘Absent evidence to the contrary, an affiant's statement that his affidavit is
based on personal knowledge will suffice to meet the requirement of Civ.R.
56(E).’ ” Bell at ¶ 27, quoting Wells Fargo Bank v. Smith, 12th Dist. Brown No.
CA2012–04–006, 2013–Ohio–855, ¶ 16. “Additionally, documents referred to in
an affidavit must be attached and must be sworn or certified copies.” Id., citing
Civ.R. 56(E). “Verification of these documents is generally satisfied by an
appropriate averment in the affidavit, for example, that ‘such copies are true
copies and reproductions.’ ” Id., quoting State ex rel. Corrigan v. Seminatore, 66
Ohio St.2d 459, 467, 423 N.E.2d 105 (1981); see also Walraven at ¶ 31 (“Civ.R.
56(E)'s requirement that sworn or certified copies of all papers referred to in the
affidavit be attached is satisfied by attaching the papers to the affidavit with a
statement contained in the affidavit that the copies are true and accurate
reproductions.”)
JPMorgan Chase Bank, Natl. Assn. v. Fallon, 4th Dist. Pickaway No. 13CA3, 2014–Ohio–525, ¶
16.
Athens App. No. 14CA22 17
{¶ 36} The affidavit at issue here sets forth the necessary information to satisfy the
requirements of Civ.R. 56(E). In her affidavit, Dasch specifically stated that (1) her affidavit was
based on her personal knowledge of the facts obtained through her review of the pertinent
mortgage loan servicing records, (2) she is familiar with the business records maintained by
Ocwen for servicing mortgage loans, (3) the servicing records were made at or near the time by,
or from information provided by, persons with knowledge of the activity and transactions
reflected in the records, (4) the records were kept in the ordinary course of business, (5) BONY
is in possession of the original executed note, a true copy of which is attached, (6) a true copy of
the mortgage is attached, (7) she personally reviewed and independently verified the loan
account, which reflected an unpaid principal balance due of $96,317.39 with interest of 10.5%
per annum from July 1, 2011, (8) BONY exercised its option under the note and mortgage to
accelerate and declare the unpaid balance due and payable, (9) a true and accurate copy of the
corrective assignment of the mortgage correcting BONY’s name is attached, (10) the business
records were kept in the normal course of business and the information contained in them was
created at or near the time of the events described therein, (11) true and accurate copies of the
notices of default mailed to appellant Elizabeth Bobo is attached, and (12) an attached payment
history is a true and accurate representation of the activity on the loan account.
{¶ 37} Here, as in Fallon, the affidavit included statements from which it could be
inferred that Dasch compared the original promissory note and the other pertinent documents to
the copies so she could attest that the copies attached to her affidavit were true and accurate. See
Parsons v. Thacker, 4th Dist. Vinton No. 13CA692, 2013–Ohio–4770, ¶ 11, quoting Deblasio v.
Sinclair, 7th Dist. Mahoning No. 08–MA–23, 2012–Ohio–5848, ¶ 50, quoting State ex rel.
Corrigan v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981) (“ ‘ “The requirement
Athens App. No. 14CA22 18
of Civ.R. 56(E) that sworn or certified copies of all papers referred to in the affidavit be attached
is satisfied by attaching the papers to the affidavit, coupled with a statement therein that such
copies are true copies and reproductions” ’ ”); Freedom Mtge. Corp. v. Vitale, 5th Dist.
Tuscarawas No. 2013 AP 08 0037, 2014–Ohio–1549, ¶ 26 (“Ohio law recognizes that personal
knowledge may be inferred from the contents of an affidavit * * * [and][t]he assertion of
personal knowledge in an affidavit satisfies Civil Rule 56(E) if the nature of the facts in the
affidavit combined with the identity of the affiant creates a reasonable inference that the affiant
has personal knowledge of the facts in the affidavit.”).
{¶ 38} Moreover, Dasch’s job as a mortgage loan servicing employee gave her personal
knowledge of the pertinent facts. “Several appellate courts have found that, in a foreclosure
action, the affidavit of a loan servicing agent employee with personal knowledge, provides
sufficient evidentiary support for a summary judgment in favor of the mortgagee.” See Regions
Bank v. Seimer, 10th Dist. Franklin No. 13AP-542, 2014–Ohio–95, ¶ 19, and cases cited there.
{¶ 39} The appellants’ reliance on Wachovia Bank of Delaware, N.A., 5th Dist. Stark
No.2010–CA–00291, 2011–Ohio–3202, is misplaced. In that case, the affidavit was insufficient
to establish the bank’s entitlement to foreclosure because the affiant “merely alleges she is an
assistant secretary of [the bank], without elaborating on how her position with the company
relates to or makes her familiar with the [mortgagor's] account records.” Id. at ¶ 28. By contrast,
Dasch specified how her position as authorized signer with the mortgage loan servicing company
made her familiar with the pertinent mortgage loan account records.
{¶ 40} Therefore, the trial court did not err in relying on Dasch’s affidavit.
G. Receipt of the Notice of Default and Acceleration
Athens App. No. 14CA22 19
{¶ 41} In their final argument, appellants contend that the trial court erred in granting
summary judgment in favor of BONY because genuine issues of material fact remained about
whether they received a notice of default and acceleration prior to the foreclosure proceedings.
Appellants rely on appellant Elizabeth Bobo’s affidavit, filed with their memorandum contra, in
which she averred that she did not receive a notice of default and acceleration.
{¶ 42} The notice requirement found in the note states:
Unless applicable law requires a different method, any notice that must be given
to me under this Note will be given by delivering it or by mailing it by first class
mail to me at the Property Address above or at a different address if I give the
Note Holder a notice of my different address.
[Note, p. 3.] Likewise, the mortgage states:
All notices given by Borrower or Lender in connection with this Security
Instrument must be in writing. Any notice to Borrower in connection with this
Security Instrument shall be deemed to have been given to Borrower when mailed
by first class mail or when actually delivered to Borrower’s notice address if sent
by other means. Notice to any one Borrower shall constitute notice to all
Borrowers unless Applicable Law expressly requires otherwise.
[Mortgage, p. 10.]
{¶ 43} Dasch, in her affidavit, specifically averred that “breach letters” “were mailed * *
* in accordance with the Note and Mortgage.” In addition, the “true and accurate” copies of the
Athens App. No. 14CA22 20
breach letters attached to the affidavit state on their face that they were sent “VIA First Class
Mail” and “VIA Certified Mail”.
{¶ 44} Here, the mortgage loan documents do not require that the borrower actually
receive the required notices. Rather, notice is deemed to have been given upon mailing by First
Class Mail. Accordingly, appellant Elizabeth Bobo has not created a dispute of material fact by
her affidavit swearing that she did not receive the notice. See Citimortgage, Inc. v. Cathcart, 5th
Dist. Stark No. 2013CA00179, 2014-Ohio-620, ¶¶ 12-14 (holding that borrower’s averment that
she did not receive notice of default and acceleration did not create a question of fact where
receipt was not required by the mortgage loan documents).
{¶ 45} Moreover, we also reject appellants’ argument that the Dasch affidavit was
insufficient because it failed to expressly state that the notices were sent via first class mail. The
Fifth District Court of Appeals, in OneWest Bank, FSB v. Albert, 5th Dist. Stark No.
2013CA00180, 2014-Ohio-2158, ¶¶ 20-22, in dealing with a nearly identical notice provision,
found that an averment that plaintiff “mailed written notice of default and acceleration to [the
borrower] pursuant to the terms of the Note and Mortgage” satisfied its burden because the
actual notice letter stated it was sent by first-class certified mail. We find the reasoning of the
Fifth District Court of Appeals sound, and conclude that, in the instant case, no genuine issue of
material fact exists that BONY satisfied its duty to provide appellants with notice of default and
acceleration pursuant to the terms of the note and mortgage.
{¶ 46} Based on the above, we conclude that appellants did not raise a genuine issue of
material fact regarding the notice sent by BONY prior to the initiation of the foreclosure
proceedings.
Athens App. No. 14CA22 21
V. Conclusion
{¶ 47} In order to foreclose a mortgage the complainant must establish execution and
delivery of the note and mortgage, a default, and an amount due. See Fifth Third Mtge. Co. v.
Rankin, 4th Dist. Pickaway No. 10CA45, 2011-Ohio-2757, ¶ 15. BONY supported its motion for
summary judgment with evidence establishing the requirements for foreclosure of appellants’
property, and the appellants failed to meet their reciprocal evidentiary burden to raise a genuine
issue of material fact. The trial court thus properly entered summary judgment in favor of
BONY.
{¶ 48} Therefore, we overrule all three of appellants’ assignments of error and affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Athens App. No. 14CA22 22
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellants shall pay the costs herein
taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County
Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this
entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
Harsha, J.: Concurs in Judgment and Opinion.
McFarland, A.J.: Concurs in Judgment Only.
For the Court
By:
Marie Hoover
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.