PNC Bank, Natl. Assn. v. West

[Cite as PNC Bank, Natl. Assn. v. West, 2014-Ohio-161.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
PNC BANK, NATIONAL ASSOCIATION C.A. No. 12CA0061
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MICHAEL R. WEST, et al. COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellants CASE No. 10-CV-0693
DECISION AND JOURNAL ENTRY
Dated: January 21, 2014
WHITMORE, Judge.
{¶1} Appellants, Michael and Dena West (collectively, “the Wests”), appeal from the
judgment of the Wayne County Court of Common Pleas, granting summary judgment in favor of
Appellee, PNC, National Association (“PNC”). This Court reverses.
I
{¶2} In June 2001, the Wests executed a promissory note in favor of National City
Bank to purchase a property in Wooster, Ohio. Along with the note, the Wests also signed a
mortgage granting a security interest in the property to National City Bank. On that same day,
National City Bank executed an assignment of the mortgage to National City Mortgage Co. This
assignment was never recorded. Approximately five months later, in November 2001, National
City Mortgage Co. assigned the mortgage and the note to Federal Home Loan Mortgage
Corporation (“Freddie Mac”). This assignment was also never recorded.
2
{¶3} In September 2010, PNC, as successor by merger to National City Bank, filed a
complaint in foreclosure against the Wests. PNC attached a copy of the Wests’ note, which
contained one undated indorsement from National City Bank to National City Mortgage Co.
Additionally, PNC attached a copy of the Wests’ mortgage. No assignments were attached to the
complaint.
{¶4} In June 2011, PNC filed a motion for summary judgment. PNC attached, among
other things, copies of the Wests’ note and mortgage. These copies were identical to the copies
that were attached to the initial complaint. Ultimately, the court denied PNC’s motion for
summary judgment. In July 2012, PNC filed a second motion for summary judgment. The copy
of the note attached to this motion showed an additional, undated indorsement from National
City Mortgage Co. to blank. Additionally, PNC attached uncertified photocopies of documents
to establish National City Bank had merged into PNC. The court granted PNC’s motion for
summary judgment over the Wests’ opposition. The Wests now appeal and raise two
assignments of error for our review.
II
Assignment of Error Number One
THE TRIAL COURT ERRED IN DETERMINING PLAINTIFF HAD MET
THE STANDARDS REQUIRED FOR SUMMARY JUDGMENT WITH
RESPECT TO THE ISSUE OF WHETHER OR NOT PLAINTIFF WAS THE
HOLDER OF THE NOTE AND MORTGAGE, OR THE PARTY INITIATED
(sic) TO ENFORCE THE INSTRUMENT.
{¶5} In their first assignment of error, the Wests argue that the court erred in granting
summary judgment in favor of PNC because it did not establish that it was the real party in
interest. We agree.
{¶6} Pursuant to Civ.R. 56(C), summary judgment is proper if:
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(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 (1977). This Court reviews a trial court’s
decision to grant a motion for summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio
St.3d 102, 105 (1996).
{¶7} The party moving for summary judgment bears the initial burden of informing the
trial court of the basis for the motion and pointing to parts of the record that show the absence of
a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). Once this
burden is satisfied, the non-moving bears the burden of offering specific facts to show a genuine
issue for trial. See Civ.R. 56(E); Dresher at 293.
{¶8} “[A] party lacks standing to invoke the jurisdiction of the court unless he has, in
an individual or representative capacity, some real interest in the subject matter of the action.”
(Emphasis sic.) Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-
5017, ¶ 22, quoting State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio
St.2d 176, 179 (1973). “The real party in interest in a foreclosure action ‘is the current holder of
the note and mortgage.’” Quantum Servicing Corp. v. Haugabrook, 9th Dist. Summit No.
26542, 2013-Ohio-3516, ¶ 8, quoting Wells Fargo Bank N.A. v. Horn, 9th Dist. Lorain No.
12CA010230, 2013-Ohio-2374, ¶ 10. Accord BAC Home Loan Serv. v. McFerren, 9th Dist.
Summit No. 26384, 2013-Ohio-3228, ¶ 13. Standing is determined at the time the complaint is
filed. Schwartzwald at ¶ 24.
{¶9} Attached to its second motion for summary judgment, PNC attached a sworn
affidavit of Dorothy Thomas, a mortgage officer with PNC. Thomas averred that she was
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competent to testify about the matters contained in the affidavit. Thomas attested that in 2005,
National City Mortgage Co. changed its name to National City Mortgage, Inc. In 2007, National
City Mortgage, Inc. merged into National City Real Estate Services, L.L.C. In 2009, “National
City Bank, along with its wholly owned subsidiary National City Real Estate Services, LLC
merged with and into PNC Bank, National Association.” Thomas incorporated various
documents attached to her affidavit to support her assertions.1
{¶10} The Wests objected to the supporting documents in their memorandum in
opposition. Now, on appeal, the Wests argue that the court erred in considering the documents
attached to Thomas’ affidavit when ruling on the bank’s motion for summary judgment because
the documents were not original copies. In support of their argument, the Wests cite Bank of
America, N.A. v. Miller, 194 Ohio App.3d 307, 2011-Ohio-1403 (2d Dist.). In Miller, the court
reviewed its decision in Congress Park Business Ctr. L.L.C. v. Nitelites, Inc., 2d Dist.
Montgomery No. 21262, 2007-Ohio-4200. In that case, one of the parties submitted “a copy of a
certificate of incorporation bearing the signature of the Ohio Secretary of State, made under his
seal.” Miller at ¶ 53, quoting Congress Park Business Ctr. L.L.C. at ¶ 7. The Second District
concluded that the document, despite being a copy, qualified as a self-authenticating document
1
The documents include:
1. Photocopies of the following certificates from the Ohio Secretary of State, made under
seal:
a. January 4, 2005, National City Mortgage Co. amended its articles to change its
name to National City Mortgage, Inc.
b. January 1, 2007, National City Mortgage, Inc. merged into National City Real
Estate Services L.L.C.
c. October 1, 2008, National City Mortgage Co. merged into National City Bank.
d. November 7, 2009, National City Real Estate Services, L.L.C. dissolved.
2. A certificate by George Long III, Secretary of PNC, detailing National City Bank’s
merger into PNC on November 6, 2009.
3. A final approval for National City Bank’s merger into PNC by the Comptroller of the
Currency.
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under Evid.R. 902(1) as a document under seal. Miller at ¶ 53; Congress Park Business Ctr.
L.L.C. at ¶ 12. However, the court held that the copy of the certified certificate was not
admissible because there was no supporting testimony of a witness that compared it to the
original, pursuant to Evid.R. 1005. Miller at ¶ 54; Congress Park Business Ctr. L.L.C. at ¶ 12.
Evid.R. 1005, in relevant part, states that “[t]he contents of an official record * * * may be
proved by copy, certified as correct in accordance with Rule 902 * * * or testified to be correct
by a witness who has compared it with the original.”
{¶11} The certificates from the Secretary of State attached to PNC’s second motion for
summary judgment were photocopies. These photocopies were not certified as correct in
accordance with Evid.R. 902 and Thomas did not testify that she compared the photocopies with
the originals. See Evid.R. 902(1) and 1005. Therefore, these documents were not properly
before the trial court when ruling on PNC’s motion for summary judgment.
{¶12} Similarly, the letters from the Comptroller of the Currency and the certificate of
PNC’s Secretary were not admissible as business records under Evid.R. 803(6) and 902(10).
“To qualify for admission under Evid.R. 803(6), a business record must manifest four essential
elements: (i) the record must be one regularly recorded in a regularly conducted activity; (ii) it
must have been entered by a person with knowledge of the act, event or condition; (iii) it must
have been recorded at or near the time of the transaction; and (iv) a foundation must be laid by
the custodian of the record or by some other qualified witness.” (Internal quotations and
citations omitted.) Green Tree Servicing, L.L.C. v. Roberts, 12th Dist. Butler No. CA2013-03-
039, 2013-Ohio-5362, ¶ 29. Thomas’ affidavit fails to establish that the letters from the
Comptroller of the Currency and the certificate of PNC’s Secretary met any of the four
requirements of Evid.R. 803(6). Further, to the extent that the corporate documents attached to
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the Secretary of State’s Certificates could be considered business records, the records were
inadmissible for the same reason, i.e., Thomas’ affidavit is deficient in establishing the
foundational requirements of Evid.R. 803(6).
{¶13} Without the documents establishing that National City Mortgage Co. had merged
into PNC, there remained a genuine issue of material fact. While there is evidence that PNC had
possession of the Wests’ promissory note indorsed in blank, there is conflicting evidence that, at
the time the complaint was filed, the note was indorsed to National City Mortgage Co. Standing
must be established at the time of the commencement of the action. Schwartzwald, 134 Ohio
St.3d 13, 2012-Ohio-5017, at ¶ 24. Because there remained a genuine issue of material fact as to
whether PNC was the real party in interest at the time the foreclosure action was filed, summary
judgment was not appropriate. The Wests’ first assignment of error is sustained.
Assignment of Error Number Two
THE TRIAL COURT ERRED IN DETERMINING PLAINTIFF HAD
PERFORMED ALL CONDITIONS PRECEDENT TO ITS BEING ABLE TO
FORECLOSE UPON THE NOTE AND MORTGAGE.
{¶14} In their second assignment of error, the Wests argue that the court erred when it
granted summary judgment in favor of PNC because it did not show that it met certain conditions
precedent. In light of our resolution of the Wests’ first assignment of error, their second
assignment of error is not yet ripe for review and we decline to address it.
III
{¶15} The Wests’ first assignment of error is sustained and their second assignment of
error is not ripe for review. The judgment of the Wayne County Court of Common Pleas is
reversed, and the cause is remanded for further proceedings consistent with the foregoing
opinion.
7
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
EDWIN H. BREYFOGLE, Attorney at Law, for Appellants.
LISA BABISH FORBES and LINDSAY E. DOSS, Attorneys at Law, for Appellee.