Fifth Third Mtge. Co. v. Campbell

[Cite as Fifth Third Mtge. Co. v. Campbell, 2013-Ohio-3032.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
FIFTH THIRD MORTGAGE COMPANY :
: Appellate Case No. 25458
Plaintiff-Appellee :
: Trial Court Case No. 2012-CV-919
v. :
:
DARRELL L. CAMPBELL, et al. : (Civil Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 12th day of July, 2013.
...........
HARRY J. FINKE, IV, Atty. Reg. #0018160, Graydon Head & Ritchey LLP, 1900 Fifth Third
Center, 511 Walnut Street, Cincinnati, Ohio 45202-3157
Attorney for Plaintiff-Appellee, Fifth Third Mortgage Company
PAMELA L. PINCHOT, Atty. Reg. #0071648, Clyo Professional Center, 7960 Clyo Road,
Dayton, Ohio 45459
Attorney for Defendant-Appellant, Michelle Campbell
MATHIAS H. HECK, JR., by DOUGLAS TROUT, Atty. Reg. #0072027, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972,
301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Defendant-Appellee, Montgomery County Treasurer
DARRELL CAMPBELL, 327 White Cedar Drive, Miamisburg, Ohio 45342
Defendant-Appellee, pro se
.............
HALL, J.,
{¶ 1} Defendant Michelle M. Campbell appeals, and appeals from, the trial court’s
entry of summary judgment for Fifth Third Mortgage Company on its complaint in foreclosure.
We affirm.
Facts and Evidence
{¶ 2} On February 3, 2012, Fifth Third filed a complaint in foreclosure against
Campbell (and others not party to this appeal). Fifth Third later moved for summary judgment.
To the summary-judgment motion, it attached a promissory note, a mortgage, and an affidavit.
The note is signed by Campbell and identifies Fifth Third as the lender, and the mortgage is
signed by Campbell and given to Fifth Third. The affidavit contains these averments:
1. I am an Affidavit Analyst for Fifth Third Bank, the loan servicer for Fifth
Third Mortgage Company. Fifth Third Bank, as servicer, is responsible for,
among other things, receiving and crediting payments made pursuant to the
terms of notes and mortgages evidencing mortgage loans, including the
mortgage loan that is the subject of this action (“Mortgage Loan”).
2. I am an authorized signer for Fifth Third Bank and am competent to testify
to the matters stated in this affidavit.
3. I have personal knowledge of the facts stated in this affidavit based upon
my review of the business records referenced and incorporated below.
4. As part of my job, I am familiar with the manner in which the business
records, maintained by Fifth Third Bank for the purpose of servicing
consumer mortgage loans, are compiled, maintained, and retrieved, and I
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also have direct access to those business records.
5. The business records (which include data compilations, electronically
imaged documents, and other similar records) are maintained by Fifth
Third Bank electronically and are made at or near the time by, or from
information provided by, persons with knowledge of the activity and
transactions reflected in such records. The business records are regularly
kept by Fifth Third Bank in the course of its business of servicing
mortgage loans. It is also Fifth Third Bank’s regular practice to make and
retain such records.
6. In connection with making this affidavit, I personally examined Fifth Third
Bank’s business records relating to the Mortgage Loan (“Mortgage Loan
Business Records”). The following statements in this affidavit are based on
information contained in those Mortgage Loan Business Records.
7. Attached hereto as Exhibit A is a true and accurate copy of the promissory
note in the amount of $93,728.00, which is part of the Mortgage Loan (the
“Note”).
8. Attached hereto as Exhibit B is a true and accurate copy of the mortgage
(“Mortgage”), which secures payment of the Note and which is part of the
Mortgage Loan.
9. Darrell L. Campbell and Michelle M. Campbell are in default under the
terms of the Note and Mortgage due to [their] failure to make all required
payments.
4
10. Because of the default, Fifth Third Mortgage Company elected to call the
entire balance of said account due and payable. There is due on said
account the sum of $92,997.10, plus interest at the per annum rate of
4.625% from July 1, 2011, plus court costs, advances, and other charges
allowed by the Note and Mortgage and Ohio law.
Campbell opposed the motion for summary judgment. She attached no evidence to her
opposition.
{¶ 3} The trial court granted the motion and entered summary judgment.
{¶ 4} Campbell appealed.
Analysis
{¶ 5} The sole assignment of error alleges that the trial court erred in entering summary
judgment. Campbell contends that the trial court should not have considered the affidavit,
promissory note, or mortgage. And she contends that even if that evidence can be considered, it
fails to satisfy Fifth Third’s summary-judgment burden.
{¶ 6} The affidavit may be considered. Civ.R. 56(E) provides that a supporting
affidavit must “be made on personal knowledge,” must “set forth such facts as would be
admissible in evidence,” and must “show affirmatively that the affiant is competent to testify to
the matters stated in the affidavit.” “A flat statement by the affiant that he had personal
knowledge is adequate to satisfy Civ.R. 56(E).” (Citation omitted.) Bank One, N.A. v. Swartz, 9th
Dist. Lorain No. 03CA008308, 2004-Ohio-1986, ¶ 14 (saying also that “a specific averment that
an affidavit pertaining to business is made upon personal knowledge of the affiant satisfies the
Civ.R. 56(E) requirement that affidavits both in support or in opposition to motions for summary
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judgment show that the affiant is competent to testify to the matters stated”). Here, paragraph
three of the affidavit states that the affiant has personal knowledge.
{¶ 7} The promissory note and mortgage also may be considered. They are verified and
authenticated and fall under the business-records hearsay exception. Civ.R. 56(E) provides that
“[s]worn or certified copies of all papers or parts of papers referred to in an affidavit shall be
attached to or served with the affidavit.” That is, attached documents must be verified.
“Verification of documents attached to an affidavit supporting or opposing a motion for summary
judgment, as required by Civ.R. 56(E), is satisfied by an appropriate averment in the affidavit
itself.” Swartz at ¶ 14, citing State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 423 N.E.2d
105 (1981), paragraph 3 of the syllabus. Here, paragraphs seven and eight of the affidavit contain
appropriate averments verifying the promissory note and mortgage respectively. Compare
Seminatore at 467 (saying that an appropriate averment could state that “such copies are true
copies and reproductions”).
{¶ 8} The promissory note and mortgage here are also authenticated. “For a document
to be admitted as a business record, it must first be properly identified and authenticated ‘by
evidence sufficient to support a finding that the matter in question is what its proponent
claims.’”Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502,
2013-Ohio-1657, ¶ 30, quoting Evid.R. 901(A). “Authenticating a business record ‘does not
require the witness whose testimony establishes the foundation for a business record to have
personal knowledge of the exact circumstances of preparation and production of the document.’”
Jefferson v. CareWorks of Ohio, Ltd., 193 Ohio App.3d 615, 2011-Ohio-1940, 953 N.E.2d 353,
¶ 11 (10th Dist.), quoting State v. Myers, 153 Ohio App.3d 547, 2003-Ohio-4135, 795 N.E.2d 77,
6
¶ 60 (10th Dist.). “‘While the witness need not have personal knowledge of the creation of the
particular record in question, and need not have been in the employ of the company at the time
the record was made, he must be able to vouch from personal knowledge of the record-keeping
system that such records were kept in the regular course of business.’” State v. Davis, 62 Ohio
St.3d 326, 342, 581 N.E.2d 1362 (1991), quoting Dell Publishing Co., Inc. v. Whedon, 577
F.Supp. 1459, 1464, fn. 5 (S.D.N.Y.1984). Here, paragraph six of the affidavit states that the
affiant personally examined the attached documents.
{¶ 9} Finally, the promissory note and mortgage here fall under the business-records
hearsay exception in Evid.R. 803(6). The statements in paragraph five of the affidavit satisfy this
exception. Compare Royse v. Dayton, 195 Ohio App.3d 81, 2011-Ohio-3509, 958 N.E.2d 994, ¶
25 (2d Dist.) (saying that “‘[t]o be admissible under Evid.R. 803(6), a business record must
display four essential elements: (1) it must have been kept in the regular course of business; (2) it
must stem from a source who had personal knowledge of the acts, events, or conditions; (3) it
must have been recorded at or near the time of the transaction; and (4) a foundation must be
established by the testimony of either the custodian of the record or some other qualified
person,’” quoting State v. Comstock, 11th Dist. Ashtabula No. 96 A 0058, 1997 WL 531304(Aug. 29, 1997)).
{¶ 10} Campbell contends that the affidavit is not sufficient to establish that she is in
default nor to establish how much she owes. Campbell is incorrect. Paragraph nine of the
affidavit is sufficient to establish that she is in default. Swartz, 2004-Ohio-1986, at ¶ 14 (saying
that “[a]n affidavit stating the loan is in default, is sufficient for purposes of Civ.R. 56”), citing
Yorkwood Sav. & Loan Ass’n v. Jacobs, 2d Dist. Montgomery No. CA 11998, 1990 WL 1078407
(July 31, 1990). And paragraph ten is sufficient to establish the amount of principal and interest
due.
{¶ 11} Summary judgment should be entered if “(1) [n]o 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); Civ.R. 56(C). And “[i]t is well settled that
a mortgagee is entitled to judgment after there has been a default on the conditions of the
mortgage and the debt as evidenced by the note having been accelerated.” (Citation omitted.)
Wells Fargo Bank, N.A. v. Sessley, 188 Ohio App.3d 213, 2010-Ohio-2902, 935 N.E.2d 70, ¶ 20
(10th Dist.). Here, based on the affidavit, promissory note, and mortgage, the trial court properly
entered summary judgment for Fifth Third. Compare Yorkwood at *4 (saying, on similar
evidence and averments, that “there was no genuine issue of material fact as to whether the real
estate of which [the defendant] was title owner was subject to a mortgage owned by [the
mortgage company] and was in default”).
{¶ 12} The sole assignment of error is overruled.
{¶ 13} The trial court’s judgment is affirmed.
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FROELICH and WELBAUM, JJ., concur.
Copies mailed to:
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Harry J. Finke, IV
Pamela L. Pinchot
Mathias H. Heck
Douglas Trout
Darrell Campbell
Hon. Steven K. Dankof