Bank of Am., N.A. v. Beato

[Cite as Bank of Am., N.A. v. Beato, 2016-Ohio-8035.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
BANK OF AMERICA, N.A. ) CASE NO. 15 MA 0028
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
JOHN W. BEATO, et al. )
)
DEFENDANTS-APPELLANTS )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 2012 CV 00313
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Matthew J. Richardson
Manley Deas Kochalski LLC
P.O. Box 165028
Columbus, Ohio 43216-5028
For Defendant-Appellant: Atty. Bruce M. Broyles
5815 Market Street, Suite 2
Boardman, Ohio 44512
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: December 7, 2016
[Cite as Bank of Am., N.A. v. Beato, 2016-Ohio-8035.]
WAITE, J.
{¶1} Appellant John W. Beato appeals the January 26, 2015 decision of the
Mahoning County Common Pleas Court to grant summary judgment in favor of
Appellee Bank of America, N.A. in its foreclosure action.
{¶2} In 2007, Appellant signed a promissory note for $540,000 and
corresponding mortgage on 7220 Cobblers Run, Youngstown, Ohio 44514.
Appellee was later assigned the note and mortgage. Appellant subsequently
defaulted on the loan. On February 2, 2012, Appellee filed a complaint seeking
judgment on the note and mortgage and asking for foreclosure on the property.
Attached to the complaint was a copy of the note endorsed in blank, mortgage and
assignment of mortgage. Appellant filed a pro se answer on March 5, 2012.
Appellee filed a motion for summary judgment on April 16, 2012. Attached to the
motion were a copy of the account information statement and the affidavit of
Assistant Vice President of Bank of America, N.A., Alan Haben. Haben averred that
Appellant had defaulted under the terms of the note and mortgage by failing to make
the monthly installment payments, that the debt had been accelerated, and that the
total due under the note was the principal sum of $561,206.50 plus interest.
{¶3} Appellant subsequently filed a Chapter 13 bankruptcy petition. The
matter was then subject to an automatic stay. The stay was lifted and the instant
matter was returned to the active docket on July 25, 2014. Appellant filed a
memorandum in opposition on October 24, 2014 and a motion to strike the Haben
affidavit, as it allegedly failed to demonstrate that Appellee was in possession of the
note. Appellee filed a reply and filed an objection to the motion to strike, asserting
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that the Haben affidavit laid a proper foundation to admit the business records and
that Appellee had properly attached copies of the note, mortgage and assignment of
mortgage to the complaint. Appellee also asserted that Appellant failed to present
any evidence in support of his claims against Appellee’s affidavit and evidence.
{¶4} On January 26, 2015, the trial court granted summary judgment in favor
of Appellee, concluding that Appellee was entitled to a decree of foreclosure. This
appeal followed. Based on the following, Appellant’s assignment of error is without
merit and the judgment of the trial court is affirmed.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO APPELLEE WHEN THERE WERE GENUINE ISSUES OF
MATERIAL FACT STILL IN DISPUTE.
{¶5} This appeal is from a trial court judgment resolving a motion for
summary judgment. An appellate court conducts a de novo review of a trial court’s
decision to grant summary judgment, using the same standards as the trial court set
forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671
N.E.2d 241 (1996). Before summary judgment can be granted, the trial court must
determine that: (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, (3) it appears from the
evidence that reasonable minds can come to but one conclusion, and viewing the
evidence most favorably in favor of the party against whom the motion for summary
judgment is made, the conclusion is adverse to that party. Temple v. Wean United,
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Inc., 50 Ohio St. 2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is “material”
depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon &
Assoc., Inc., 104 Ohio App. 3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).
{¶6} “[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record which
demonstrate the absence of a genuine issue of fact on a material element of the
nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St. 3d 280,
296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving
party has a reciprocal burden of setting forth specific facts showing that there is a
genuine issue for trial. Id. at 293. In other words, when presented with a properly
supported motion for summary judgment, the nonmoving party must produce some
evidence to suggest that a reasonable factfinder could rule in that party’s favor.
Brewer v. Cleveland Bd. of Edn., 122 Ohio App. 3d 378, 386, 701 N.E.2d 1023 (8th
Dist.1997).
{¶7} In an action for foreclosure, the mortgagor must establish an interest in
the promissory note or mortgage in order to have standing in the action. Fed. Home
Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St. 3d 13, 2012-Ohio-5017, 979 N.E.2d
1214, ¶ 28; see also Deutsche Bank Natl. Trust Co. v. Holden, Slip Opinion No.
2016-Ohio-4603, paragraph one of the syllabus.
{¶8} Appellee filed its motion for summary judgment on April 16, 2012.
Attached to the motion was an affidavit executed by Alan Haben, an authorized
signer and an Assistant Vice President of Appellee. Haben averred that the
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information contained in the affidavit came from Appellee’s business records; that
Appellee had possession of the note; and that Appellant had defaulted under the
terms of the note and mortgage by failing to make his monthly payments. Haben
further averred that the indebtedness had been accelerated and that the total due
under the note was a principal sum of $561,206.50 plus interest. Attached to
Haben’s affidavit was an account information statement. The note endorsed in blank,
mortgage, assignment of mortgage and certificate of merger were attached to
Appellee’s complaint.
{¶9} On appeal, Appellant argues that Haben’s affidavit is not based on his
personal knowledge that Appellee had possession of the note. Hence, Appellant
argues the affidavit contains inadmissible hearsay and should not have been
considered by the trial court. Specifically, Appellant claims that in Haben’s affidavit
he states that he reviewed the business records and that Appellee is in possession of
the note, but that Haben did not attach any business records from which the court
could determine that Appellee did have possession of the note. The only record
attached to the affidavit was an account information statement of Bank of America
regarding Appellant’s loan.
{¶10} Pursuant to R.C. 1303.31, a holder of a note is entitled to enforce the
instrument. A holder in possession is a person in possession of a negotiable
instrument that is payable to either bearer or to an identified individual in possession.
R.C. 1301.201(B)(21)(a). A note endorsed in blank is bearer paper. R.C.
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1303.10(A)(2). As such, Appellee was required to show it had possession of the note
when it filed the complaint in the foreclosure action. R.C. 1303.201(B)(21)(a).
{¶11} Evidence Rule 803(6) entitled: “Records of regularly conducted activity”
provides that records of regularly conducted business activity are admissible as a
hearsay exception if asserted to be “by the testimony of the custodian or other
qualified witness.” In order to be admissible pursuant to Evid.R. 803(6), a business
record must satisfy four elements: (1) the record must have been kept in the regular
course of business; (2) it must stem from a source that has personal knowledge of
the acts, events or conditions; (3) it must have been recorded at or near the time of
the transaction at issue; and (4) a foundation must be laid by testimony of the
custodian of the record or some other qualified individual. State v. Davis, 116 Ohio
St.3d 404, 429, 880 N.E.2d 31 (2008). The affiant need not have first-hand
knowledge of the underlying transaction referenced in the business record. However,
the witness must be “sufficiently familiar with the operation of the business and with
the circumstances of the record’s preparation, maintenance and retrieval, that he can
reasonably testify on the basis of his knowledge that the record is what it purports to
be, and that it was made in the ordinary course of business consistent with the
elements of Rule 803(6).” U.S. Bank, N.A. v. Martin, 7th Dist. No. 13 MA 107, 2014-
Ohio-3874, ¶ 31 (citations omitted).
{¶12} Haben stated in his affidavit that he had personal knowledge of the
procedures for creating the records in question:
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The information in this affidavit is taken from BANA’s business records.
These records are: (a) made at or near the time of the occurrence of
the matters recorded by persons with personal knowledge of the
information in the business record, or from information transmitted by
persons with personal knowledge; (b) kept in the course of BANA’s
regularly conducted business activities; and (c) it is the regular practice
of BANA to make such records. I have personally reviewed the
attached records, and I make this affidavit from a review of those
business records and from my personal knowledge of how said records
are created and maintained.
(Haben Aff., ¶ 3.)
{¶13} Appellant cites Deutsche Bank National Trust Co. v. Dvorak, 9th Dist.
No. 27120, 2014-Ohio-4652 for the contention that Haben failed to detail his job
responsibilities in order to demonstrate his competency. On the contrary, Haben
identifies his job title and specifically discussed his duties, stating, “[a]s part of my job
responsibilities for BANA, I am familiar with the type of records maintained by BANA
in connection with the Loan.” (Haben Aff., ¶ 2.) Unlike Dvorak, where there were
other defects with the record, this affiant has met the requirement for admissibility
under Evid.R. 803(6). We have previously found that similar affidavits were
sufficiently based on personal knowledge and affirmed the trial court’s decision to
grant summary judgment. U.S. Bank, N.A. v. Martin, supra; U.S. Bank, N.A. v. Crow,
7th Dist. No. 15 MA 0113, 2016-Ohio-5391. Moreover, the affidavit’s averment that
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the plaintiff was in possession of the note at the time the complaint was filed is further
supported by the fact that a copy of the note endorsed in blank was attached to the
complaint when it was filed. Nationstar Mtge., L.L.C. v. Wagener, 8th Dist. No.
101280, 2015-Ohio-1289.
{¶14} Appellant also contends that in his opposition to Appellee’s motion for
summary judgment he filed both deposition and trial testimony from two of Appellee’s
employees to show that Haben’s reliance on Appellee’s business records was
misguided. However, Appellee objected to the documents as inadmissible for lack of
certification pursuant to Civ.R. 56(C). Civ.R. 56(C) very specifically prescribes what
evidentiary material may be considered in deciding a motion for summary judgment.
“Documents submitted in opposition to a motion for summary judgment which are not
sworn, certified, or authenticated by affidavit have no evidentiary value and may not
be considered by the court in deciding whether a genuine issue of material fact
remains for trial.” Green v. B.F. Goodrich Co., 85 Ohio App. 3d 223, 228, 619 N.E.2d
497 (9th Dist.1993). While Appellant attached alleged deposition and trial testimony,
both from other cases in other jurisdictions, absent deponent signature or court
reporter certification neither of these was admissible and could not appropriately
have been considered by the trial court in making its determination.
{¶15} This record reflects that Appellee brought the instant foreclosure action
against Appellant for defaulting on the mortgage. Appellee’s affidavit in support of
the summary judgment motion was sufficiently based upon personal knowledge and
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was properly considered by the trial court. Appellant’s assignment of error is without
merit and is overruled.
{¶16} Accordingly, the trial court properly sustained Appellee’s motion for
summary judgment and granted foreclosure. The judgment of the trial court is
affirmed.
Donofrio, P.J., concurs.
Robb, J., concurs.