Cent. Mtge. Co. v. Bonner

[Cite as Cent. Mtge. Co. v. Bonner, 2013-Ohio-3876.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
CENTRAL MORTGAGE COMPANY, :
CASE NO. CA2012-10-204
Plaintiff-Appellee, :
OPINION
: 9/9/2013
- vs -
:
AUDREY BONNER, et al., :
Defendants-Appellant. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV2012-01-206
Carlisle, McNellie, Rini, Kramer & Ulrich Co., LPA, Eric T. Deighton and C. Scott Casterline,
24755 Chagrin Boulevard, Suite 200, Cleveland, Ohio 44122-5690, for plaintiff-appellee
James E. Kolenich, 9435 Waterstone Boulevard, Suite 140, Cincinnati, Ohio 45249, for
defendant-appellant, Audrey Bonner
Nicole Randall, Collections Enforcement Section, 150 East Gay Street, 21st Floor,
Columbus, Ohio 43215, for defendant, State of Ohio, Department of Taxation
Nicholas J. Pantel, 221 East Fourth Street, Suite 400, Cincinnati, Ohio 45202, for defendant,
United States of America
Peter Saba, 2623 Erie Avenue, P.O. Box 8804, Cincinnati, Ohio 45208, for defendant,
Gristmill at Waldon Ponds & Waldon Ponds Home Owners Association
Michael T. Gmoser, Government Services Center, 315 High Street, 11th Floor, Hamilton,
Ohio 45011, for defendant, Butler County Environmental Services
Butler CA2012-10-204
M. POWELL, J.
{¶ 1} Defendant-appellant, Audrey Bonner, appeals a decision of the Butler County
Court of Common Pleas granting summary judgment and a decree of foreclosure in favor of
plaintiff-appellee, Central Mortgage Company (Central Mortgage). For the reasons stated
below, we affirm the judgment of foreclosure.
{¶ 2} On February 29, 2008, Bonner executed a promissory note in favor of Vandyk
Mortgage Corporation (Vandyk), in the principal amount of $241,775 to purchase a home in
Hamilton, Ohio. The note was secured by a mortgage on the property. The loan was
modified twice, in 2010 and in 2011. Later, Vandyk assigned its interest in the mortgage to
Central Mortgage.
{¶ 3} Central Mortgage filed a foreclosure complaint against Bonner on January 17,
2012. Subsequently, Central Mortgage moved for summary judgment. In support of its
summary judgment motion, Central Mortgage submitted an affidavit of Janice Davis, Vice-
President of Central Mortgage and attached the originally executed note and mortgage
between Bonner and Vandyk. Central Mortgage also attached two loan modification
agreements between Vandyk and Bonner. Lastly, Central Mortgage included the document
that assigned the mortgage from Vandyk to Central Mortgage.
{¶ 4} In response, Bonner filed a memorandum in opposition to summary judgment
and a motion to strike Davis' affidavit arguing that the documents attached to the affidavit
were hearsay and not authenticated. The trial court overruled Bonner's motion to strike,
finding that the documents were admissible under the business records exception specified
in Evid.R. 803(6). The court then granted summary judgment in favor of Central Mortgage.
{¶ 5} Bonner appeals the trial court's decision, asserting a sole assignment of error:
{¶ 6} THE COURT ERRED TO THE PREJUDICE OF THE DEFENDANT BY
GRANTING SUMMARY JUDGMENT TO THE PLAINTIFF.
-2-
Butler CA2012-10-204
{¶ 7} Bonner argues the documents attached to Davis' affidavit were inadmissible
hearsay and do not qualify under Evid.R. 803(6), the business records exception.
Specifically, she contends these documents do not qualify under Evid.R. 803(6) because
Davis was unable to establish the trustworthiness of the documents since the documents
were not created by Davis' employer, Central Mortgage. Additionally, Bonner maintains that
Davis cannot authenticate the documents. Consequently, as these documents were the only
evidence submitted by Central Mortgage, Bonner argues the grant of summary judgment in
favor of Central Mortgage was in error.
{¶ 8} This court's review of a trial court's ruling on a summary judgment motion is de
novo, which means that we review the judgment independently and without deference to the
trial court's determination. Simmons v. Yingling, 12th Dist. Warren No. CA2010-11-117,
2011-Ohio-4041, ¶ 18, citing Burgess v. Tackas, 125 Ohio App.3d 294, 296 (8th Dist.1998).
We utilize the same standard in our review that the trial court uses in its evaluation of the
motion.
{¶ 9} Summary judgment is appropriate when there are no genuine issues of material
fact to be litigated, the moving party is entitled to judgment as a matter of law, reasonable
minds can come to only one conclusion, and that conclusion is adverse to the nonmoving
party. Civ.R. 56(C); Williams v. McFarland Properties, L.L.C., 177 Ohio App.3d 490, 2008-
Ohio-3594, ¶ 7 (12th Dist.). To prevail on a motion for summary judgment, the moving party
must be able to point to evidentiary materials that show there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. Dresher v.
Burt, 75 Ohio St.3d 280, 293 (1996). The nonmoving party must then present evidence that
some issue of material fact remains to be resolved; it may not rest on the mere allegations or
denials in its pleadings. Id. All evidence submitted in connection with a motion for summary
judgment must be construed most strongly in favor of the party against whom the motion is
-3-
Butler CA2012-10-204
made. Morris v. First Natl. Bank & Trust Co., 21 Ohio St.2d 25, 28 (1970).
{¶ 10} "'A party seeking to foreclose on a mortgage must establish execution and
delivery of the note and mortgage; valid recording of the mortgage; it is the current holder of
the note and mortgage; default; and the amount owed.'" BAC Home Loans Servicing, L.P. v.
Kolenich, 194 Ohio App.3d 777, 2011-Ohio-3345 (12th Dist.), quoting Countrywide Home
Loans, Inc. v. Baker, 10th Dist. Franklin No. 09AP-968, 2010-Ohio-1329, ¶ 8.
{¶ 11} When deciding a motion for summary judgment, a trial court may consider,
"pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts
of evidence, and written stipulations of fact." Civ.R. 56(C). "[A] party may properly introduce
evidence not specifically authorized by Civ.R. 56(C) by incorporating it by reference through a
properly framed affidavit pursuant to Civ.R. 56(E)." State ex rel. Varnau v. Wenninger, 12th
Dist. Brown No. CA2009-02-010, 2011-Ohio-3904, ¶ 7.
{¶ 12} Affidavits submitted to support or oppose a summary judgment motion "shall be
made on personal knowledge, shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify as to the matters stated in
the affidavit." Civ.R. 56(E). Personal knowledge is defined as "knowledge of the truth in
regard to a particular fact or allegation, which is original, and does not depend on information
or hearsay." Varnau at ¶ 8, quoting Re v. Kessinger, 12th Dist. Butler No. CA2007-02-044,
2008-Ohio-167, ¶ 32. "Information in affidavits that is not based on personal knowledge and
does not fall under any of the permissible exceptions to the hearsay rule may be properly
disregarded by the trial court when granting or denying summary judgment." Ohio
Receivables, L.L.C. v. Dallariva, 10th Dist. Franklin No. 11AP-951, 2012-Ohio-3165, ¶ 16.
{¶ 13} The business records exception is one of numerous exceptions to the hearsay
rule. Evid.R. 803(6). To qualify for admission under Rule 803(6), a business record must
manifest four essential elements: (i) the record must be one regularly recorded in a regularly
-4-
Butler CA2012-10-204
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. State v. Glenn, 12th Dist. Butler No. CA2009-01-008, 2009-Ohio-6549, ¶ 17,
quoting State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 171. Even after the above
elements are established, however, a business record may be excluded from evidence if "the
source of information or the method of circumstances of preparation indicate lack of
trustworthiness." Id.{¶ 14} In addition to falling under the hearsay exception, business records must also
be authenticated by evidence sufficient to support a finding that the matter in question is what
its proponent claims. Evid.R. 901. Pursuant to Evid.R. 901(B)(10), "authentication of
business records * * * is governed by Evid.R. 803(6)." Great Seneca Fin. v. Felty, 170 Ohio
App.3d 737, 2006-Ohio-6618, ¶ 9 (1st Dist.).
{¶ 15} Appellate districts have addressed whether Evid.R. 803(6) allows the admission
of business records of an entity when the entity did not create the records. Ohio
Receivables, 10th Dist. Franklin No. 11AP-951, 2012-Ohio-3165; Great Seneca. The Tenth
Appellate District found that credit card documents were admissible even though no
testimony was presented from the company that created the records when the custodian
averred that the documents were created and received in the regular course of business,
incorporated into the company's business records, and relied upon. Ohio Receivables at ¶
24-26; see also Great Seneca at ¶ 15 (documents created by another entity were admissible
when entity acquired records in regular course of business, were "certified" by original
company, and were relied upon).
{¶ 16} In so holding, the court found that "Evid.R. 803(6) does not require the witness
whose testimony establishes the foundation for a business record to have personal
-5-
Butler CA2012-10-204
knowledge of the exact circumstances of preparation and production of the document or of
the transaction giving rise to the record." Ohio Receivables at ¶ 19. Rather, Evid.R. 803(6)
"permits exhibits to be admitted as business records of an entity even when the entity was
not the maker of the records, so long as the other requirements of [Evid.R. 803(6)] are met
and circumstances indicate the records are trustworthy." Ohio Receivables at ¶ 20. In
addition, numerous federal courts have permitted the admission of business records of an
entity other than the maker as long as the requirements of Fed.R.Evid. 803(6) are met and
the circumstances indicate that the records are trustworthy.1 Brawner v. Allstate Indem. Co.,
591 F.3d 984, 987 (8th Cir.2010); United States v. Ullrich, 580 F.2d 765, 771-72 (5th
Cir.1978); Air Land Forwarders, Inc. v. United States, 172 F.3d 1338, 1343 (Fed.Cir.1999).
{¶ 17} We find that the note, mortgage, loan modification agreements, and
assignment of mortgage were admissible as Davis' affidavit established that the documents
were properly authenticated and satisfied all the requirements of the business records
exception. Davis averred that she is an employee of Central Mortgage, a custodian of the
attached business records, and that she has personal knowledge of the contents thereof and
that the documents attached are true and accurate copies. Additionally, she explained that
Central Mortgage maintains loan files and databases associated with each of its loans. In
the process of maintaining these files, Central Mortgage receives documents, maintains the
loan files, the records are updated contemporaneously by a person with knowledge, and in
the ordinary course of business.
{¶ 18} While Central Mortgage was not the maker of the records, the circumstances
indicate the documents are trustworthy. Davis averred that the records are received,
1. Fed.R.Evid. 803(6) and Ohio's version of the rule are substantially similar and therefore federal case law is
instructive on this issue. Staff Notes to Evid.R. 803(6); Great Seneca, 170 Ohio App.3d. 737, 2006-Ohio-6618 at
¶ 14.
-6-
Butler CA2012-10-204
maintained and relied upon in the ordinary course of business and incorporated into the
business records of Central Mortgage. Additionally, Davis averred that she relied on the note
and mortgage to determine if the prerequisites to accelerate the loan had been satisfied and
the monthly installment payments due. Accordingly, the trial court did not err in finding the
documents were properly authenticated under Evid.R. 901 and satisfied Evid.R. 803(6).
{¶ 19} Bonner argues that the documents are inadmissible because Central Mortgage
did not establish the trustworthiness of the documents. Bonner cites to Great Seneca and
RBS Citizens, N.A. v. Zigdon, 8th Dist. Cuyahoga No. 93945, 2010-Ohio-3511, where
documents were admissible under Evid.R. 803(6) when the documents were certified by the
document originator in the former case, and in the latter case the documents came from a
merger of the receiving business and the document originating business. Great Seneca at ¶
15; RBS at ¶ 16. These cases did not state that the documents must be certified or obtained
from a merger of the receiving business and the document originator in order to be
trustworthy. Instead, the courts looked to the circumstances as a whole in determining the
trustworthiness of the documents. Great Seneca at ¶ 12, 15; RBS at ¶ 16. In this case,
Central Mortgage established sufficient indicia of trustworthiness because the documents
were incorporated into its business records, the records were kept in the regular course of
business, and the records were relied upon in the regular course of business. Ohio
Receivables at ¶ 26.
{¶ 20} Lastly, as Davis' affidavit properly authenticated the attached documents, we
find that the trial court did not err in granting summary judgment to Central Mortgage. In
support of its motion for summary judgment, Central Mortgage attached signed and notarized
copies of the endorsed in blank note, the mortgage, two loan modification agreements, and
the assignment of the mortgage from Vandyk to Central Mortgage. Notations on the
mortgage, loan modification agreements, and the assignment of the mortgage show that the
-7-
Butler CA2012-10-204
documents were recorded in the Butler County Recorder's office. Also attached to the
summary judgment motion was Davis' affidavit which averred that the copies of the note and
the mortgage were true and accurate. In the affidavit, Davis also stated Central Mortgage is
in possession of the note, all the prerequisites required under the note and mortgage
necessary to accelerate the balance due on the note have been performed, the entire
principal due has been accelerated, and that Bonner is in default and owes a principal
balance of $254,791.99 plus interest at the rate of 5.00% per annum and other various
charges.
{¶ 21} In response to Central Mortgage's requests for admission, Bonner admitted that
the mortgage secures the payment of the note and that the plaintiff's accounting for the
balance on the note is accurate. Further, Bonner has conceded that she was in default of
the mortgage. Lastly, on appeal, Bonner admitted that she borrowed money from Vandyk,
Vandyk transferred its interest to Central Mortgage, and that Central Mortgage is in
possession of the note.
{¶ 22} Consequently, we find that the trial court did not err in granting summary
judgment in favor of Central Mortgage. The evidence demonstrated that there is no genuine
issue as to any material fact, Central Mortgage is entitled to judgment as a matter of law, and
construing the evidence in the light most favorable to Bonner, reasonable minds can come
only to the conclusion that Central Mortgage is entitled to a judgment of foreclosure.
{¶ 23} Appellant's sole assignment of error is overruled.
{¶ 24} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.
-8-