Provident Funding Assocs. v. Ettayem

[Cite as Provident Funding Assocs. v. Ettayem, 2016-Ohio-226.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
PROVIDENT FUNDING ASSOCIATES, : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ASHRAF A. ETTAYEM : Case No. 15 CAE 08 0066
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Case No.
14 CV E 06 0468
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 21, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PHILLIP BARRAGATE ASHRAF A. ETTAYEM, pro se
ASHLYN HEIDER 1195 Breakers Court
Shapiro, Van Ess, Phillips Westerville, Ohio 43082
& Barragate LLP
4805 Montgomery Road, Suite 320
Norwood, Ohio 45212
Delaware County, Case No. 15 CAE 08 0066 2
Baldwin, J.
{¶1} Appellant Ashraf A. Ettayem appeals a judgment of foreclosure of the
Delaware County Common Pleas Court. Appellee is Provident Funding Associates.
STATEMENT OF FACTS AND CASE
{¶2} Appellant executed a promissory note with PFG Loans, Inc., a DBA of
Provident Funding Group, Inc., on August 9, 2006 in the amount of $340,000. The
promissory note includes two allonges: the first containing a special indorsement from
the original lender to appellee, and the second containing a blank indorsement. Both
are signed by C. Nillo as Assistant Vice President.
{¶3} Appellant also executed a mortgage to Mortgage Electronic Registration
Systems, Inc., acting as a nominee for PFG Loans. The mortgage was recorded on
August 17, 2006, and transferred by an assignment to appellee recorded on September
17, 2012.
{¶4} Appellant executed a loan modification agreement effective November 15,
2013. Appellant failed to make the first payment under the loan modification and
defaulted on December 1, 2013. Appellee accelerated the note, and filed the instant
action for foreclosure on June 23, 2014 against appellant; Natasha A. Ettyam; Eastman
Savings and Loan Association; PNC Bank, N.A.; Wesbanco Bank, Inc.; Huntington
National Bank; the Medallion Estates Homeowners Association, Inc.; the Ohio
Department of Taxation; and the Delaware County Treasurer.
{¶5} Appellee filed a motion for summary judgment, attaching the affidavit of
Sae Bin Park. Appellant filed a response, but did not attach any evidentiary materials.
Appellee filed a reply, attaching the affidavit of Jonathan Mildbrand. The trial court
Delaware County, Case No. 15 CAE 08 0066 3
found no issues of material fact, and concluded that appellee was entitled to judgment
as a matter of law. After granting the motion for summary judgment, the court issued a
final judgment of foreclosure.
{¶6} Appellant assigns a single error:
{¶7} “THE TRIAL COURT ERRED IN GRANTING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND DECREE FOR FORECLOSURE.”
{¶8} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc., 30 Ohio St. 3d 35, 36 (1987). As such, we must
refer to Civ. R. 56(C) which provides in pertinent part:
Summary Judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. No
evidence or stipulation may be considered except as stated
in this rule. A summary judgment shall not be rendered
unless it appears from the evidence or stipulation, and only
from the evidence or stipulation, that reasonable minds can
come to but one conclusion and that conclusion is adverse
to the party against whom the motion for summary judgment
Delaware County, Case No. 15 CAE 08 0066 4
is made, that party being entitled to have the evidence or
stipulation construed most strongly in the party’s favor.
{¶9} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears a material fact is genuinely disputed. 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
non-moving party has no evidence to prove its case. The moving party must specifically
point to some evidence which demonstrates that the 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 that there is a genuine issue of material
fact for trial. Vahila v. Hall, 77 Ohio St. 3d 421, 429, 1997-Ohio-259, citing Dresher v.
Burt, 75 Ohio St. 3d 280, 1996-Ohio-107.
{¶10} Appellant argues that appellee failed to prove it was the holder of the note.
He argues that the affidavit of Sae Bin Park was made without personal knowledge and
failed to authenticate the note and mortgage.
{¶11} Affidavits filed in foreclosure cases must demonstrate that the affiant is
competent to testify; that the affiant has personal knowledge of the facts, as shown by a
statement of the operant facts sufficient for the court to infer the affiant has personal
knowledge; and that the affiant was able to compare the copy with the original and
verify the copy is accurate, or explain why this cannot be done. Wachovia Bank of
Delaware, N.A. v. Jakcson, 5th Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203, ¶46-
Delaware County, Case No. 15 CAE 08 0066 5
49. The affidavit must be notarized, and any documents the affidavit refers to must be
attached to the affidavit or served with the affidavit. Id. at ¶50-51.
{¶12} The affidavit of Sae Bin Park states that she is an assistant vice president
for appellee, and her duties include the review of loan records. She avers that the note
and mortgage deed filed in the case are true and accurate copies of the original
instruments held by appellee. The trial court correctly found that her statement that she
compared the copies of the note and mortgage that were incorporated as exhibits to the
affidavit with the originals in order to verify their accuracy was sufficient to demonstrate
personal knowledge and to authenticate the note and mortgage.
{¶13} Appellant also argues that the allonges to the note are improper, as they
were not dated to show when and how each entity acquired the note, and the signer of
both allonges acted in the capacity of assistant vice president to two different entities.
{¶14} The first allonge to the note is payable to the order of Provident Funding
Associates, L.P., a California Limited Partnership, by PFG Loans, Inc., a DBA of
Provident Funding Group, Inc. The second allonge to the note is a blank indorsement
by Provident Funding Associates, L.P., a California Limited Partnership. Both allonges
are signed by C. Nillo as Assistant Vice President.
{¶15} As noted by the trial court, appellee presented evidence to establish that it
was in possession of the note at the time the instant action was filed, and the second
allonge included a blank indorsement. “An entity which possesses a note indorsed in
blank is a holder entitled to enforce the note.” Bank of Am., N.A. v. Pasqualone, 10th
Dist. Franklin No. 13AP-87, 2013-Ohio-5795, ¶35, fn. 14. Further, R.C. 1303.24, which
sets forth the requirements for a valid indorsement, does not require the date to be
Delaware County, Case No. 15 CAE 08 0066 6
included. The trial court did not err in finding the allonges to be valid, and appellee to
be the holder of the note and mortgage at the time the complaint was filed, with
standing to file the complaint in foreclosure.
{¶16} Appellant argues that the affidavit of Jonathan Mildbrand failed to
authenticate any document and creates a genuine issue of material fact.
{¶17} In response to appellee’s motion for summary judgment, appellant filed a
brief which raised issues concerning the loan modification and notice of default.
Appellee then provided the supplemental affidavit of Mildbrand which provided further
details to Park’s affidavit concerning the loan modification, the default of the loan, the
acceleration of the loan, and the notice of default. The affidavit does not contradict
Park’s affidavit, nor did it create genuine issues of material fact.
{¶18} Finally appellant argues that the signatures on the loan modification
agreement are dated after the alleged default. Although the loan modification
agreement was not signed until January 29, 2014 and February 3, 2014, the agreement
expressly provides that it is effective on November 15, 2013, and requires monthly
payments to begin on December 1, 2013. Mildbrand’s affidavit confirms that the
effective date of the modification was November 15, 2013.
{¶19} The court did not err in granting summary judgment to appellee. The
assignment of error is overruled. The judgment of the Delaware County Common Pleas
Court is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Wise, J. and
Delaney, J. concur.