Deutsche Bank Natl. Trust Co. v. Boreman

[Cite as Deutsche Bank Natl. Trust Co. v. Boreman, 2020-Ohio-3545.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
Deutsche Bank National Trust Company, Court of Appeals No. OT-18-031
as Certificate Trustee on Behalf of
Bosco Credit II Trust Series 2010-1 Trial Court No. 2017-CV-E-429
Appellee
v.
Wade Boreman, et al. DECISION AND JUDGMENT
Appellant Decided: June 30, 2020
*****
James W. Sandy, for appellee.
Marc E. Dann, Brian D. Flick and William C. Behrens,
for appellant.
*****
MAYLE, J.
{¶ 1} Appellant, Wade Boreman, appeals the July 26, 2018 judgment of the
Ottawa County Court of Common Pleas that granted summary judgment to appellee, U.S.
Bank National Association, not in its individual capacity but solely as trustee NRZ-pass
through trust X (“U.S. Bank”), and the August 9, 2019 judgment that granted U.S. Bank’s
Civ.R. 60(A) motion to correct a clerical error in the July 26 entry. For the following
reasons, we affirm.
I. Background and Facts
{¶ 2} On July 14, 2005, Boreman signed two notes in favor of MILA, Inc. The
first note (“note 1”) was for $112,560 and was secured by a mortgage (“mortgage 1”) on
Boreman’s property at 315 West Ottawa Street in Oak Harbor. The second note (“note
2”) was for $28,140 and was also secured by a mortgage (“mortgage 2”) on the Ottawa
Street property. Note 2 was subordinate to note 1, and mortgage 2 was subordinate to
mortgage 1.
{¶ 3} On October 19, 2017, appellee, Deutsche Bank National Trust Co., as
certificate trustee on behalf of BOSCO Credit II Trust Series 2010-1 (“Deutsche”), filed a
complaint in foreclosure alleging that it owned note 2 and mortgage 2 and that Boreman
was in default of the terms of the note and mortgage. Among others, Deutsche named
Nationstar Mortgage LLC as a defendant, alleging that Nationstar might claim an interest
in the Ottawa Street property.
{¶ 4} On December 20, 2017, Nationstar filed a motion seeking to substitute
“Citibank, N.A., not in its Individual Capacity but Solely as Trustee of NRZ Pass-
Through Trust VI” (“Citibank”) as a defendant in the case because the mortgage had been
assigned to Citibank and Citibank was the proper party to the action. The trial court
granted the motion and substituted Citibank as a defendant on December 28, 2017.
2.
{¶ 5} On April 10, 2018, Citibank filed an amended answer, crossclaim, and
counterclaim. In its crossclaim, Citibank alleged that it owned note 1 and mortgage 1,
and that Boreman was in default of the terms of the note and mortgage.
{¶ 6} To show that it had the right to enforce note 1 and mortgage 1, Citibank
included numerous documents with its amended answer, crossclaim, and counterclaim.
First was note 1, i.e., a note in favor of MILA for $112,560 signed by Boreman on
July 14, 2005. The note included an undated, blank indorsement from MILA.
{¶ 7} The second document was a loan modification agreement, dated January 17,
2008, between Boreman and Wilshire Credit Corp. (“Wilshire”), as “owner or servicer”
of the loan.
{¶ 8} Third was a loan modification agreement between Boreman and BAC Home
Loans Servicing, LP (“BAC”), dated September 17, 2010. In addition to Boreman’s
signature page, the agreement includes two signature pages, each dated December 6,
2012. The first is a signature from “Bank of America, N.A., for itself or as successor by
merger to BAC Home Loans Servicing, LP / By: Stewart Lender Services, Inc., its
attorney in fact.” The second is a signature from “Mortgage Electronic Registration
Systems, Inc. (MERS), / as Nominee for Bank of America, N.A., for itself or as successor
by merger to BAC Home Loans Servicing, LP.”
{¶ 9} The fourth document included with the amended answer, crossclaim, and
counterclaim was a loan modification agreement, dated June 11, 2013, between Boreman
and Select Portfolio Servicing, Inc. (“SPS”), as “Lender or Servicer” of the loan.
3.
{¶ 10} Next, Citibank attached mortgage 1, i.e., a mortgage on the Ottawa Street
property, signed by Boreman on July 14, 2005, as security for note 1.
{¶ 11} Finally, Citibank attached the following series of assignments of mortgage
1:
Date Assignor Assignee
August 10, 2009 “Mortgage Electronic “The Bank of New York
Registration Systems, Inc. as Mellon Trust Company,
Nominee for MILA INC. * * *” National Association f/k/a
The Bank of New York Trust
Company, N.A., as successor
to JPMorgan Chase Bank,
National Association, as
Trustee for the MLMI SURF
Trust Series 2005-BC4.”
(“BONY”)
June 5, 2012 “MORTGAGE ELECTRONIC “THE BANK OF NEW
REGISTRATION SYSTEMS, YORK MELLON FKA THE
INC. AS NOMINEE FOR BANK OF NEW YORK, AS
MILA, INC.” SUCCESSOR TRUSTEE TO
JPMORGAN CHASE BANK,
N.A., AS TRUSTEE FOR
THE HOLDERS OF THE
MLMI SURF TRUST,
MORTGAGE LOAN
ASSET-BACKED
CERTIFICATES, SERIES
2005-BC4.”
July 30, 2013 “Bank of America, N.A.” “NATIONSTAR
MORTGAGE, LLC.”
4.
November 17, 2017 “THE BANK OF NEW YORK “CITIBANK, N.A., NOT IN
MELLON TRUST ITS INDIVIDUAL
COMPANY, NA FKA THE CAPACITY BUT SOLELY
BANK OF NEW YORK AS TRUSTEE OF NRZ
TRUST COMPANY NA AS PASS-THROUGH TRUST
SUCCESSOR TO JPMORGAN VI”
CHASE BANK, NA, AS
TRUSTEE FOR THE MLMI
SURF TRUST SERIES 2005-
BC4, BY NATIONSTAR
MORTGAGE LLC AS IT’S
[sic] ATTORNEY-IN-FACT”
Included with the November 2017 assignment was a limited power of attorney from “The
Bank of New York Mellon Trust Company, N.A. as successor-in-interest to all permitted
successors and assigns of JPMorgan Chase Bank, National Association” giving
Nationstar power of attorney to, among other things, assign mortgages and notes in
certain “Pooling and Servicing Agreements” (including those in SURF Trust Series 2005-
BC4) in connection with the sale of those mortgages and notes.
{¶ 12} On May 14, 2018, Citibank moved for summary judgment. Citibank
argued that it was entitled to enforce note 1 and mortgage 1, and that Boreman breached
the terms of the note and mortgage by failing to make payments on the debt after
September 1, 2015.
{¶ 13} Attached to Citibank’s motion was the affidavit of Hugh Zhao, a
“Document Execution Associate of Nationstar Mortgage LLC * * *.” He averred that
Nationstar “services and maintains records for the loan that is secured by the mortgage
being foreclosed in this action in its capacity as Defendant U.S. Bank National
5.
Association, not in its individual capacity but solely as Trustee NRZ Pass-Through Trust
X’s servicer.” He said that he had personal knowledge of the facts in his affidavit from
reviewing Nationstar’s records and had personal knowledge of Nationstar’s procedures
for creating and maintaining business records. Following a heading reading, “If
Nationstar relies on prior servicer records, include the following language as a separate
paragraph,” Zhao said that “[b]efore the servicing of this loan transferred to Nationstar,
SPS (Prior Servicer) was the servicer for the loan and it maintained the loan servicing
records.” He went on to say that Nationstar incorporated SPS’s records into its own
recordkeeping system, and that Nationstar relied on SPS’s records in providing its loan
servicing functions. Zhao specifically averred that “U.S. Bank National Association, not
in its individual capacity but solely as Trustee NRZ Pass-Through Trust X directly or
through an agent, has possession of the promissory note and held the note at the time of
filing the answer. The promissory note has been duly indorsed.”
{¶ 14} In addition to his testimony, Zhao included several documents with his
affidavit. He averred that the documents were “true and correct copies of documents
electronically stored in Nationstar’s business records * * *.” Attached to the affidavit
were (1) note 1 with a blank indorsement from MILA; (2) mortgage 1; (3) a January 26,
2018 assignment of mortgage listing “CITIBANK, N.A., NOT IN ITS INDIVIDUAL
CAPACITY, BUT SOLELY AS TRUSTEE OF NRZ PASS-THROUGH TRUST VI,
BY NATIONSTAR MORTGAGE LLC ITS ATTORNEY IN FACT” as the assignor and
“U.S. BANK NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY
6.
BUT SOLELY AS TRUSTEE NRZ PASS-THROUGH TRUST X” as the assignee,
along with a limited power of attorney from “CITIBANK, N.A., not in its individual
capacity but solely as Trustee on behalf of NRZ Pass-Through Trust VI” giving
Nationstar power of attorney to, among other things, assign mortgages and notes on
Citibank’s behalf; (4) the June 11, 2013 loan modification agreement between Boreman
and SPS; (5) the September 17, 2010 loan modification agreement between Boreman and
BAC; (6) the January 17, 2008 loan modification agreement between Boreman and
Wilshire; (7) two default notices sent to Boreman on April 5, 2016; and (8) Boreman’s
payment history.
{¶ 15} In his June 6, 2018 response to Citibank’s motion, Boreman first argued
that summary judgment was not appropriate because Citibank was not the proper party to
enforce the note and mortgage. Citibank assigned the note and mortgage to U.S. Bank in
January 2018. Consequently, Citibank could not prove that it was the party entitled to
enforce the note and mortgage.
{¶ 16} Boreman also claimed that there were numerous issues with Zhao’s
affidavit. First, he argued that Zhao was not authorized to testify on behalf of Citibank
because his testimony related to the records Nationstar maintained on behalf of U.S.
Bank—not Citibank—which made Zhao’s affidavit completely inadmissible as it related
to Citibank’s motion for summary judgment. Next, Boreman argued that Zhao failed to
explain Citibank’s ability to enforce the note and mortgage. Zhao did not attest that
Citibank had possession of the note or that there was an agency relationship between
7.
Citibank (which was pursuing foreclosure) and U.S. Bank (on whose behalf Zhao
testified) that would allow Citibank to enforce the note. As to the mortgage, Boreman
said that a party is required to provide admissible evidence of its ability to enforce a
mortgage to survive summary judgment, but Zhao did not provide any testimony “as to
any party having an enforceable interest in the Mortgage.”
{¶ 17} Further, Boreman argued that Zhao did not properly authenticate
Nationstar’s business records because he provided contradictory testimony about whether
Nationstar relied on its own records or a prior servicer’s records. Boreman also noted
that the payment history attached to Zhao’s affidavit showed that at least three
companies—SPS, BAC, and Wilshire—serviced Boreman’s loan, but Zhao did not
provide any “specific, clear testimony” about Nationstar’s integration of BAC’s or
Wilshire’s records into Nationstar’s records.
{¶ 18} Next, Boreman argued that Zhao’s affidavit did not authenticate the note
and mortgage because Zhao did not testify that he compared the copies of the note and
mortgage attached to his affidavit with the original note and mortgage. Boreman said
that, because the copies were redacted, “triable issues of fact remain as to whether what is
in Nationstar’s business records are exact copies of the original.”
{¶ 19} Boreman went on to argue that Citibank failed to present admissible
evidence of the balance due on note 1 because the payment history attached to Zhao’s
affidavit lacked trustworthiness. He noted that Zhao was unclear in his affidavit about
which integrated records he relied on and that there were “4 different types” of payment
8.
histories, but only one of the types appeared to come from Nationstar, and Zhao failed to
lay a foundation for the admission of records from servicers other than Nationstar.
{¶ 20} Boreman’s last argument regarding Zhao’s affidavit was that it failed to
show that Citibank properly sent Boreman a notice of default and acceleration. He said
that the letters included with Zhao’s affidavit did not refute his claimed defense that
Citibank failed to send the notice of default and acceleration in the manner required by
the note and mortgage and created a triable issue regarding whether Citibank correctly
listed the amount required to cure the default in its letter. He also argued that Zhao’s
affidavit was unreliable regarding the notice of default because he did not specifically
aver that he reviewed Nationstar’s business records to verify when the letter was sent to
Boreman.
{¶ 21} Boreman’s final argument against summary judgment was that that genuine
issues of material fact remained regarding the chain of assignments of note 1 and
mortgage 1. Although Boreman acknowledged that Citibank attached a complete chain
of assignments from MILA to Citibank to its amended answer, crossclaim, and
counterclaim, he argued that Citibank’s failure to attach all of the assignments to its
motion for summary judgment resulted in “triable issues of law and fact remain[ing] as to
whether Citibank has presented admissible evidence as to how it is entitled to enforce the
mortgage based on the assignments that it has presented in this Motion versus what is
[sic] previously been in the record but Mr. Zhou [sic] has not authenticated * * * .”
9.
{¶ 22} On June 19, 2018, Citibank filed a motion seeking to substitute “U.S. Bank
National Association, not in its individual capacity but soley [sic] as trustee NRZ-pass
through trust X” as a defendant in the case because Citibank had sold note 1 and
mortgage 1 to U.S. Bank and no longer had an interest in the litigation. On July 3, 2018,
Citibank amended the motion to correct the typographical error in the June 19 motion.
The trial court granted the amended motion and substituted U.S. Bank as a defendant on
July 6, 2018.
{¶ 23} On July 9, 2018, Citibank filed its reply in support of summary judgment.1
It noted that the trial court had substituted U.S. Bank as a defendant in the case, which
rendered moot the “vast majority” of Boreman’s arguments. It also argued that Zhao’s
affidavit was sufficient to meet U.S. Bank’s burden under Civ.R. 56 because it
established that (1) Boreman executed note 1 and mortgage 1, (2) U.S. Bank had
possession of note 1, (3) Boreman defaulted on the note, (4) Nationstar, U.S. Bank’s
agent, sent Boreman a notice of default and acceleration per the terms of the note and
mortgage, (5) Boreman failed to cure the default, and (6) Boreman owed a certain amount
under the note.
{¶ 24} Additionally, Citibank argued that Boreman failed to present evidence
rebutting the information in Zhao’s affidavit. Specifically, Citibank argued that U.S.
Bank provided assignments showing that it was the real party in interest entitled to
1
Although Citibank was no longer a defendant after July 6, 2018, it—not U.S. Bank—
filed the reply in support of Citibank’s motion for summary judgment.
10.
enforce the note and mortgage. It also said that Zhao properly authenticated the records
attached to his affidavit because he averred that he made the affidavit based on his
personal knowledge and averred that the note and mortgage attached to his affidavit were
“true and correct copies electronically stored in Nationstar’s business records * * *.”
Regarding Boreman’s argument that Zhao was unclear about which records he relied on,
Citibank said that Zhao “explicitly averred” that Nationstar integrated the records from
the “Prior Servicer” (i.e., SPS) and there is no requirement that an affiant “meticulously
describe a chronology of each and every prior entity that may have, at one time, produced
business records for the subject loan.” Next, Citibank claimed that Zhao’s affidavit
showed that Nationstar sent a notice of default and acceleration in accordance with the
terms of the note and mortgage. Finally, Citibank argued that Zhao’s affidavit
established the amount due under the note because the payment history attached to the
affidavit was one of the records that Nationstar integrated into its business records when
it took over from SPS, and there was no requirement that Nationstar create the payment
records itself.
{¶ 25} On July 26, 2018, the trial court granted summary judgment to “CitiBank,
N.A., not in its Individual Capacity but solely as Trustee of NRZ Pass-Through Trust
VI.” On July 19, 2019, U.S. Bank filed a motion under Civ.R. 60(A) asking the trial
court to amend the July 26, 2018 entry to correct a clerical error, i.e., to change the party
to which the trial court granted judgment from Citibank to U.S. Bank. On August 9,
11.
2019, the trial court granted U.S. Bank’s motion and amended the judgment entry of
foreclosure.
{¶ 26} Boreman now appeals, raising two assignments of error:
FIRST ASSIGNMENT OF ERROR[:] The Trial Court erred in
relying upon the Affidavit of Hugh Zhao when granting CitiBank, N.A.’s
Motion for Summary Judgment.
SECOND ASSIGNMENT OF ERROR: The Trial Court erred in
Granting Citibank’s Motion for Summary Judgment as the Plaintiff not
meet [sic] its remaining evidentiary burdens under Civ. R. 56(C).
II. Law and Analysis
{¶ 27} In his first assignment of error, Boreman argues that the trial court erred by
granting summary judgment to Citibank based on Zhao’s affidavit because Zhao was
authorized to testify on behalf of U.S. Bank—not Citibank. U.S. Bank counters that
Zhao’s affidavit complied with Civ.R. 56(E) because he “established his personal
knowledge to testify on behalf of U.S. Bank even though the Motion was filed by
CitiBank.” U.S. Bank also argues that Citibank’s motion for summary judgment was not
a “‘nullity’ simply because it was filed by CitiBank after it had transferred its interest in
the Loan.”
{¶ 28} In his second assignment of error, Boreman argues that U.S. Bank did not
meet its evidentiary burden under Civ.R. 56 because (1) Zhao did not authenticate
Nationstar’s business records, (2) Zhao did not authenticate the note and mortgage,
12.
(3) Zhao did not present admissible evidence that the notice of default and acceleration
was properly sent to Boreman, (4) Zhao’s affidavit did not present admissible evidence of
the balance due under the note, and (5) the chain of assignments did not establish that
Citibank had a right to enforce the mortgage.
{¶ 29} U.S. Bank responds that (1) Zhao properly authenticated the documents
attached to his affidavit; (2) Zhao established all conditions precedent to foreclosure, and
Boreman did not point to any contrary evidence that demonstrated a genuine issue of
material fact; (3) Zhao’s affidavit established the amount due and owing under the note,
and Boreman did not present any contrary evidence that demonstrated a genuine issue of
material fact; and (4) all assignments are in the record and properly authenticated.
{¶ 30} An appellate court reviews summary judgment de novo, employing the
same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,
671 N.E.2d 241 (1996); Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,
572 N.E.2d 198 (9th Dist.1989). The court can grant a motion for summary judgment
only when the moving party demonstrates:
(1) that there is no genuine issue as to any material fact; (2) that the moving
party is entitled to judgment as a matter of law; and (3) that reasonable
minds can come to but one conclusion, and that conclusion is adverse to the
party against whom the motion for summary judgment is made, who is
entitled to have the evidence construed most strongly in his favor. Harless
13.
v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46(1978); Civ.R. 56(C).
In a foreclosure case, the party seeking to foreclose must support its motion for summary
judgment with evidentiary-quality materials showing: (1) the movant is the holder of the
note and mortgage, or is a party entitled to enforce the note and mortgage; (2) if the
movant is not the original mortgagee, the chain of assignments and transfers; (3) the
mortgagor is in default; (4) all conditions precedent to foreclosure have been met; and
(5) the amount of principal and interest due under the note. Lakeview Loan Servicing,
LLC v. Amborski, 6th Dist. Lucas No. L-14-1242, 2016-Ohio-2978, ¶ 28.
{¶ 31} The party seeking summary judgment must specifically delineate the basis
upon which the motion is brought and identify those portions of the record that
demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio
St.3d 280, 293, 662 N.E.2d 264 (1996); Mitseff v. Wheeler, 38 Ohio St.3d 112, 526
N.E.2d 798 (1988), syllabus. When a properly supported motion for summary judgment
is made, an adverse party may not rest on mere allegations or denials in the pleadings, but
must respond with specific facts showing that there is a genuine issue of material fact.
Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). The
opposing party must do so using “pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact
* * *.” Civ.R. 56(C). A “material” fact is one that would affect the outcome of the suit
under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio
14.
App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110
Ohio App.3d 817, 827, 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A. Zhao was competent to testify to the facts in his affidavit.
{¶ 32} Boreman first argues that Zhao’s affidavit was inadmissible because he was
not authorized to testify on behalf of Citibank. We disagree.
{¶ 33} Under Civ.R. 56(E),
[s]upporting and opposing affidavits 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 to the matters
stated in the affidavit. Sworn or certified copies of all papers or parts of
papers referred to in an affidavit shall be attached to or served with the
affidavit.
Generally, unless controverted by other evidence, an affiant’s statement that he is making
the affidavit based on his personal knowledge is sufficient to show that he is competent to
testify to the matters in the affidavit. U.S. Bank Natl. Assn. v. Downs, 6th Dist. Erie No.
E-15-062, 2016-Ohio-5360, ¶ 20.
{¶ 34} Boreman does not dispute that Zhao averred that he made the affidavit
based on his personal knowledge. Boreman argues, however, that Zhao’s affidavit is
nonetheless inadmissible because Zhao was competent to testify about U.S. Bank’s
records, not Citibank’s records, and the affidavit was submitted on behalf of Citibank.
15.
Boreman did not provide any legal authority supporting this position, and we were not
able to find any.
{¶ 35} Boreman makes a passing comment in his appellate brief that the entire
summary judgment motion (which would necessarily include the Zhao affidavit) was a
“nullity” because it was filed by Citibank, rather than the real party in interest, U.S.
Bank.2 Boreman did not, however, make any arguments either in the trial court or on
appeal relating to the summary judgment motion being a “nullity” or regarding Citibank’s
or U.S. Bank’s standing.3 Regardless, we struggle to understand how the truthfulness and
accuracy of Zhao’s statements are somehow impugned simply because he is an agent of
U.S. Bank (the real party in interest) rather than Citibank. Moreover, the fact that
Nationstar was the servicer for U.S. Bank, not Citibank—standing alone—is not the type
of evidence that calls an affiant’s competence to testify under Civ.R. 56(E) into question.
2
In his statement of facts, Boreman states that “[t]he [summary judgment] motion filed
by Citi on May 14, 2018 is a nullity, as at the time it was filed, Citi held no interest in the
Note or Mortgage, and lacked standing to seek judgment.”
3
Even if he had made this argument in the trial court or developed this argument on
appeal, it is meritless on its face. If a party’s interest in a case is transferred during the
course of the litigation, Civ.R. 25(C) controls the substitution of the parties. The rule
provides that “the action may be continued by or against the original party, unless the
court upon motion directs the person to whom the interest is transferred to be substituted
in the action or joined with the original party.” That is, substitution of the parties is
discretionary with the trial court, and either the original party or the new party can litigate
the case. Waterfall Victoria Master Fund 2008-1 v. Rittenhouse, 2018-Ohio-1791, 111
N.E.3d 883, ¶ 20-21 (5th Dist.). So the fact that Citibank filed the motion for summary
judgment after it transferred its interest in the note and mortgage to U.S. Bank does not
make the motion a “nullity.”
16.
Compare HSBC Mtge. Servs., Inc. v. Edmon, 6th Dist. Erie No. E-11-046, 2012-Ohio-
4990, ¶ 13-21 (affiant’s averment that she was testifying based on personal knowledge of
homeowner’s account was rebutted by her contradictory deposition testimony regarding
whether she saw original note or only a scanned copy of the note). It is well established
that “‘the affidavit of a loan servicing agent employee with personal knowledge provides
sufficient evidentiary support for summary judgment in favor of the mortgagee.’” Fannie
Mae v. Bilyk, 10th Dist. Franklin No. 15AP-11, 2015-Ohio-5544, ¶ 11, quoting Fifth
Third Mtge. Co. v. Salahuddin, 10th Dist. Franklin No. 13AP-945, 2014-Ohio-3304, ¶ 15.
{¶ 36} Here, Zhao specifically averred that he had “personal knowledge of the
facts in [the] affidavit,” which established his competence under Civ.R. 56(E) to testify to
the facts related to Boreman’s loan. The burden then shifted to Boreman to show that a
genuine issue of material fact remained by pointing to evidence contradicting Zhao’s
competence to testify. Although he pointed out that Zhao was testifying on behalf of
U.S. Bank (not Citibank), Boreman did not present any evidence that called into question
the accuracy or veracity of Zhao’s affidavit. Accordingly, we find that Zhao’s affidavit is
admissible summary judgment evidence. Boreman’s first assignment of error is not well-
taken.
B. U.S. Bank met its summary judgment burden.
{¶ 37} In his second assignment of error, Boreman argues that U.S. Bank failed to
meet its evidentiary burden in five specific ways. We address each in turn.
17.
1. Zhao properly authenticated Nationstar’s business records.
{¶ 38} Boreman first argues that Zhao failed to authenticate Nationstar’s business
records because, essentially, the business records attached to his affidavit include records
from several different loan servicers, but his affidavit does not contain “specific, clear
testimony as to what records Nationstar actually relied on * * * or specific, clear
testimony as to the integration of * * *” prior servicers’ records into Nationstar’s records.
U.S. Bank responds that Zhao properly authenticated Nationstar’s records, including the
records from prior servicers.
{¶ 39} To authenticate a piece of evidence, the party offering the evidence must
also provide “evidence sufficient to support a finding that the matter in question is what
its proponent claims.” Evid.R. 901(A). In the context of business records, that requires
the proponent to comply with Evid.R. 803(6). Great Seneca Fin. v. Felty, 170 Ohio
App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶ 9 (1st Dist.), citing Evid.R. 901(B)(10).
The Ohio Supreme Court has identified the requirements to establish admissibility of
records under Evid.R. 803(6), the business record exception to the hearsay rule:
“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 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
18.
witness.’” Weissenberger, Ohio Evidence Treatise (2007) 600, Section
803.73. Even after these elements are established, however, a business
record may be excluded from evidence if “the source of information or the
method or circumstances of preparation indicate lack of trustworthiness.”
Evid.R. 803(6).
State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 171. A court “‘may
admit a document as a business record even when the proffering party is not the maker of
the document, if the other requirements of Evid.R. 803(6) are met and the circumstances
suggest that the record is trustworthy. * * * Trustworthiness of a record is suggested by
the profferer’s incorporation into its own records and reliance on it.’” HSBC Bank USA,
N.A. v. Gill, 2019-Ohio-2814, 139 N.E.3d 1277, ¶ 14 (1st Dist.), quoting U.S. Bank, N.A.
v. Christmas, 2d Dist. Montgomery No. 26695, 2016-Ohio-236, ¶ 18, vacated on other
grounds, 146 Ohio St.3d 1468, 2016-Ohio-5108, 54 N.E.3d 1267.
{¶ 40} A person qualified to lay the foundation for the business records must
“possess a working knowledge of the specific record-keeping system that produced the
document * * * [and] be able to vouch from personal knowledge of the record-keeping
system that such records were kept in the regular course of business.” (Brackets sic and
internal quotations omitted.) Fed. Natl. Mtge. Assn. v. Brunner, 2013-Ohio-128, 986
N.E.2d 565, ¶ 13 (6th Dist.). The employee of a loan servicing company can be an “other
qualified witness” within the meaning of Evid.R. 803(6). See HSBC Bank USA, N.A. v.
Takats, 6th Dist. Lucas No. L-14-1155, 2015-Ohio-3077, ¶ 17-19 (affidavit of loan
19.
servicing company employee that averred to “personal knowledge of the manner in which
[the servicing company’s] business records are created and maintained * * *” was
sufficient to “demonstrate[] that [the employee was] competent to lay the foundation for
admissibility of the loan records as business record under Evid.R. 803(6).”).
{¶ 41} Boreman’s entire argument against Zhao’s authentication of the records is
based on a statement between paragraphs 3 and 4 of Zhao’s affidavit that reads, “If
Nationstar relies on prior servicer records, include the following language as a separate
paragraph[.]” Boreman claims that this statement “undercut” Zhao’s authentication of
the records because “there was no testimony from Mr. Zhao whether Nationstar is relying
on their own records, or prior servicing records.” However, contrary to Boreman’s claim,
immediately following that statement, Zhao averred in paragraph 4 of his affidavit that,
among other things, SPS’s records “have been integrated and are relied upon by
Nationstar as part of Nationstar’s business records.” (Emphasis added.) Further, in
paragraph 11 of his affidavit, Zhao avers that the documents attached to his affidavit—
including note 1, mortgage 1, assignments of mortgage 1, loan modification agreements,
demand and acceleration notices, and Boreman’s payment history—are “true and correct
copies of documents electronically stored in Nationstar’s business records * * *.” This
information is sufficient to show that the records Zhao included with his affidavit are
what he claims they are, i.e., business records either created by Nationstar or received by
Nationstar from SPS and integrated into Nationstar’s recordkeeping system.
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{¶ 42} Regardless, because some of the documents show that Boreman’s loan had
other servicers (e.g., Wilshire and BAC) during its lifetime, Boreman argues that, to
properly authenticate the loan documents, Zhao was required to aver that Nationstar
integrated and relied upon records from each of the prior servicers or U.S. Bank was
required to have someone familiar with the recordkeeping practices of each of those
servicers authenticate the records. We disagree. Zhao’s affidavit is sufficient to show
that the records he attached are what he says they are: business records either (1) kept by
Nationstar in the regular course of its business, made by someone with knowledge of the
thing recorded, and made at or near the time of the transaction, or (2) received from SPS
and integrated into Nationstar’s system and relied on by Nationstar. The fact that some
of the documents attached to Zhao’s affidavit originated with businesses other than
Nationstar or SPS is insufficient, standing alone, to raise a genuine issue of material fact
regarding the documents’ authenticity, and Boreman does not point to any other evidence
in the record that raises questions about the records’ trustworthiness. Zhao’s affidavit
sufficiently authenticated Nationstar’s business records, and Boreman’s arguments to the
contrary are without merit.
2. Zhao properly authenticated the note and mortgage.
{¶ 43} Next, Boreman argues that Zhao failed to authenticate the note and
mortgage. He contends that Zhao’s failure to aver that he compared the original note and
mortgage to the copies of the note and mortgage included with his affidavit was
“important and necessary” because the copies are “heavily redacted” and “[w]ithout some
21.
specific averment explaining the comparison of the originals to the business records,
triable issues of fact remain as to whether what is in Nationstar’s business records are
exact copies of the original.” U.S. Bank responds that Zhao was not required to
affirmatively state that he compared the originals to the copies and that Zhao’s affidavit
sufficiently authenticated the note and mortgage. We agree.
{¶ 44} There is no requirement that the affiant authenticating a copy of a
document specifically attest that he compared the copy to the original. In fact, “Civ.R.
56(E) is satisfied by a statement in the affidavit declaring that the copies of the
documents submitted are true and accurate reproductions of the originals.” Downs, 6th
Dist. Erie No. E-15-062, 2016-Ohio-5360, at ¶ 21. Zhao averred in paragraph 11 of his
affidavit that the copies of the note and mortgage attached to his affidavit were “true and
correct copies of documents electronically stored in Nationstar’s business records * * *,”
which is all that Civ.R. 56(E) requires.
{¶ 45} Although Boreman speculates that it is “possible that [Zhao] viewed the
wrong loan file” or that Zhao “simply signed the affidavit without reviewing any
documents at all,” he does not point to any facts in the record that contradict Zhao’s
statement that the copies of the note and mortgage attached to his affidavit are “true and
correct copies.” To withstand summary judgment, an opposing party must do more than
speculate; he must point to specific facts showing that a genuine issue remains for trial.
Civ.R. 56(E); Bank of New York Mellon v. Bobo, 2015-Ohio-4601, 50 N.E.3d 229, ¶ 13
(4th Dist.), quoting Loveday v. Essential Heating Cooling & Refrig., Inc., 4th Dist. Gallia
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No. 08CA4, 2008-Ohio-4756, ¶ 9 (“‘Mere speculation and unsupported conclusory
assertions are not sufficient’ to meet the nonmovant’s reciprocal burden under Civ.R.
56(E) to withstand summary judgment.”). Accordingly, Boreman’s argument that Zhao
failed to authenticate the note and mortgage is without merit.
3. Nationstar complied with the notice-of-default provisions.
{¶ 46} Boreman next contends that Zhao failed to present admissible evidence that
Nationstar sent a notice of default as required by the note and mortgage as a condition
precedent to foreclosure. Although Zhao included copies of two notices of default with
his affidavit, Boreman argues that there are issues of fact still in dispute regarding
Nationstar’s compliance with the notice provisions because neither letter is addressed to
Boreman’s ex-wife, who was listed as a borrower on the mortgage, and Zhao did not say
when Nationstar sent the notices or refer to Nationstar’s mailing logs to confirm that the
letters were, in fact, mailed. Boreman also argues that his affirmative defense that the
notice of default failed to include the amount of the arrearage he allegedly owed, when
viewed along with the arrearage amount included in the notices of default, creates an
issue of fact for trial.
{¶ 47} U.S. Bank counters that Zhao specifically testified that a default notice was
sent to Boreman on April 5, 2016, in accordance with the terms of the note and mortgage
and included authenticated copies of the notice with his affidavit, which is sufficient to
show that Nationstar (on U.S. Bank’s behalf) complied with the notice provisions, and
Boreman has not presented any evidence to the contrary.
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{¶ 48} If a note or mortgage contains a term requiring prior notice of default or
acceleration, compliance with that requirement is a condition precedent to foreclosure.
Wells Fargo Bank v. Sowell, 2015-Ohio-5134, 53 N.E.3d 969, ¶ 24 (8th Dist.).
{¶ 49} In this case, the note and mortgage each contain terms requiring notice of
default. Section 7(C) of the note states that:
If I am in default, the Note Holder may send me a written notice telling me
that if I do not pay the overdue amount by a certain date, the Note Holder
may require me to pay immediately the full amount of the Principal which
has not been paid and all the interest that I owe on that amount. That date
must be at least 30 days after the date on which the notice is mailed to me
or delivered by other means.
In section 8, the note instructs that “any notice that must be given to [the borrower] under
this Note will be given by delivering it or by mailing it by first class mail to me at the
Property Address above or at a different address if I give the Note Holder a notice of my
different address.”
{¶ 50} Section 22 of the mortgage states that:
Lender shall give notice to Borrower prior to acceleration following
Borrower’s breach of any covenant or agreement in this Security
Instrument * * *. The notice shall specify: (a) the default; (b) the action
required to cure the default; (c) a date, not less than 30 days from the date
the notice is given to Borrower, by which the default must be cured; and
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(d) that failure to cure the default on or before the date specified in the
notice may result in acceleration of the sums secured by this Security
Instrument, foreclosure by judicial proceeding and sale of the Property.
The notice shall further inform Borrower of the right to reinstate after
acceleration and the right to assert in the foreclosure proceeding the non-
existence of a default or any other defense of Borrower to acceleration and
foreclosure. * * *
In section 15, the mortgage instructs that “[a]ny notice to Borrower in connection with
this Security Instrument shall be deemed to have been given to Borrower when mailed by
first class mail or when actually delivered to Borrower’s notice address if sent by other
means. Notice to any one Borrower shall constitute notice to all Borrowers * * *.”
{¶ 51} Included with Zhao’s affidavit are two letters dated April 5, 2016, and
addressed to Boreman at the Ottawa Street address. The letters are identical, with the
exception that the second letter includes the notation “Sent Via Certified Mail” at the top
left, with a series of digits (presumably the tracking number) underneath. The same
numbers are also in the lower left corner of each page of the second letter. Each letter
says that (1) Boreman’s loan is in default from May 1, 2015; (2) to cure the default, he
must pay $9,728.59 by May 10, 2016; (3) failure to cure the default could result in
acceleration of the amount due under the note, foreclosure proceedings, and sale of the
property; and (4) Boreman had the right to reinstate his loan after acceleration and the
right to assert defenses to acceleration and foreclosure in the foreclosure proceedings.
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{¶ 52} With each letter is what appears to be a copy of an envelope or a printout of
a mailing sheet with Nationstar’s name and address in the space for the return address,
Boreman’s name and the Ottawa Street address in the space for the mailing address, and
the notation “PRESORT / First-Class Mail / U.S. Postage and / Fees Paid / WSO” in the
space for the stamp. In addition, the envelope or mailing sheet with the second letter
includes the same tracking number that is found on the second letter and the notation
“RETURN RECEIPT REQUESTED” above the mailing address.
{¶ 53} On their faces, the letters attached to Zhao’s affidavit comply with the
notice provisions in the note and mortgage. They tell Boreman (1) that he is in default,
(2) that he can cure the default by paying, (3) how much he must pay to reinstate his loan,
(4) that the payment must be made by a date that is more than 30 days in the future,
(5) the consequences of failing to cure the default, including acceleration of the debt and
foreclosure, and (6) that he can raise defenses in any future foreclosure proceedings.
Further, absent opposing evidence from Boreman, the first-class postage-paid notation in
the stamp area of the envelope or mailing sheet is sufficient to show that Nationstar
mailed the default notices by first-class mail. Bank of Am., N.A. v. Staples, 7th Dist.
Mahoning No. 14 MA 109, 2015-Ohio-2094, ¶ 65-68.
{¶ 54} Regarding when Nationstar sent the letters, Zhao averred based on his
personal knowledge of Nationstar’s business records that the notices of default were sent
to Boreman on April 5, 2016. Although Boreman claims that this was “not sufficient to
provide evidence of when the document was mailed by Nationstar” and that Zhao should
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have included “[a] simple averment he reviewed Nationstar’s business record or mailing
logs to verify when [the default notices] were sent * * *,” he did not offer any evidence
of his own to counter Zhao’s evidence of mailing or provide any legal authority
supporting his claim that Zhao needed to provide mailing records.
{¶ 55} Boreman next points out that Zhao testified that Nationstar sent default
notices to Wade Boreman and Dawn Boreman, but both letters attached to his affidavit
are addressed to Wade Boreman. However, this does not defeat notice under the note and
mortgage. Boreman was the only borrower listed on the note, so Dawn was not required
to receive any notice under the note. And the mortgage specifically provides that
“[n]otice to any one Borrower shall constitute notice to all Borrowers * * *,” so any
failure of notice to Dawn is inconsequential because notice was properly sent to
Boreman.
{¶ 56} Finally, Boreman claims that there is a genuine issue of material fact
regarding the default notice because he asserted as an affirmative defense that the notice
failed to include the amount he was in arrears, but the default notices attached to Zhao’s
affidavit included the amount of the default. Although he claims that this creates an issue
of fact, Boreman is not permitted to rest on the allegations and denials in the pleadings
and he did not present any other evidence that calls into question the default amount
listed in the notices. Consequently, he did not meet his reciprocal burden to show that a
genuine issue of material fact remains for trial. Boreman’s arguments regarding the
default notice are without merit.
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4. U.S. Bank established the amount due under the note.
{¶ 57} Boreman next contests the amount U.S. Bank claims is due under the note.
He argues that the payment history that Zhao included with his affidavit is untrustworthy
because it “contains 4 different types of pay histories,” but Zhao only authenticated
records from Nationstar, and without the payment history, U.S. Bank has no evidence of
the amount due. U.S. Bank responds that it was not required to present a payment history
and Zhao’s affidavit was sufficient to establish the amount due, particularly when
Boreman failed to point to any contrary evidence. Even assuming it was required to
present the payment history, U.S. Bank argues that Zhao properly authenticated the
payment records as part of a prior servicer’s records.
{¶ 58} In a foreclosure case, the amount due and owing on a note can be proven
by a simple averment of the amount owed from a bank employee with personal
knowledge of the debtor’s account unless the debtor refutes the alleged amount with
evidence that he owes a different amount. U.S. Bank Trust, N.A. v. Jacobs, 6th Dist.
Lucas No. L-14-1268, 2015-Ohio-4632, ¶ 23, citing Natl. City Bank v. TAB Holdings,
Ltd., 6th Dist. Erie No. E-10-060, 2011-Ohio-3715, ¶ 12. In other words, U.S. Bank was
not required to provide a payment history to prove what Boreman owed under the note;
Zhao’s testimony of the amount owed was sufficient. If Boreman had responded to the
motion for summary judgment with evidence that the amount presented by Zhao was
wrong, a triable issue of fact would remain. As it is, however, Boreman did not counter
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Zhao’s testimony with any evidence that he owed a different amount under the note.
Accordingly, we find that U.S. Bank presented admissible evidence of the balance due.
5. U.S. Bank has the right to enforce the note and mortgage.
{¶ 59} Finally, Boreman argues that U.S. Bank did not establish its right to
enforce the note and mortgage because the only proof of ownership attached to the
motion for summary judgment—and thus authenticated by Zhao—was proof of MILA’s
original ownership of the loan and the assignment of the loan from Citibank to U.S.
Bank. U.S. Bank responds that, although the entire chain of assignments was not
attached to the motion for summary judgment, as Boreman concedes, all necessary
assignments were attached to Citibank’s amended answer. Moreover, U.S. Bank claims,
Zhao was not required to authenticate the documents because they were notarized,
making them self-authenticating.
{¶ 60} To support a motion for summary judgment, “[t]he moving party must
point to some evidence in the record of the type listed in Civ.R. 56(C).” (Emphasis
added.) Downs, 6th Dist. Erie No. E-15-062, 2016-Ohio-5360, at ¶ 15, citing Dresher,
75 Ohio St.3d at 292-293, 662 N.E.2d 264. In other words, the evidence is not required
to be attached to the motion for summary judgment as long as it has been filed in the case
in a form that is permitted by Civ.R. 56(C) (i.e., “pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact * * *”). Millstone Condominiums Unit Owners Assn. v. 270 Main St.,
11th Dist. Lake No. 2011-L-078, 2012-Ohio-2562, ¶ 61.
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{¶ 61} Here, the record contains a complete chain of assignments from MILA—
the original lender—to U.S. Bank—the current holder—which shows that U.S. Bank is
entitled to enforce the note and mortgage.
{¶ 62} First, the original note, dated July 14, 2005, showing MILA as the lender
and Boreman as the borrower, was included with Citibank’s amended answer, crossclaim,
and counterclaim. It was also attached to and authenticated by Zhao’s affidavit, which
was included with the motion for summary judgment. The note was indorsed in blank by
MILA, and Zhao averred that U.S. Bank “directly or through an agent, has possession of
the promissory note and held the note at the time of filing the answer.” The holder of a
note that is indorsed in blank has the right to enforce that note. See JPMorgan Chase
Bank, N.A. v. Swan, 6th Dist. Lucas No. L-14-1186, 2015-Ohio-1056, ¶ 14. The record
also contains three loan modification agreements that Boreman executed over the life of
the loan. Each modification agreement, which changed the terms of the note, was
attached to the motion for summary judgment and authenticated by Zhao as part of the
business records that Nationstar obtained from SPS.
{¶ 63} After U.S. Bank pointed to this evidence in the record showing that no
genuine issues of material fact remained regarding its right to enforce the note, Boreman
did not point to any evidence contradicting Zhao’s testimony that U.S. Bank had
possession of the note when its crossclaim and counterclaim were filed, or that the terms
of the note were modified as provided in the loan modification agreements. Accordingly,
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we find that no genuine issues of material fact remain to be resolved regarding U.S.
Bank’s right to enforce the note.
{¶ 64} Regarding the mortgage, the original mortgage, dated July 14, 2005, was
attached to the amended answer, crossclaim, and counterclaim, and attached to and
authenticated by Zhao’s affidavit, which was included with the motion for summary
judgment. The mortgage showed MILA as the lender, MERS, as nominee for MILA, as
the mortgagee, and Boreman and Dawn Boreman as the borrowers.
{¶ 65} The first assignments in the record are two assignments of mortgage from
MERS, as nominee for MILA, to BONY. One is dated August 10, 2009, and the other is
dated June 5, 2012. Both were attached to Citibank’s amended answer, counterclaim,
and crossclaim. The pleadings in a case are properly considered on summary judgment.
Civ.R. 56(C). Under Civ.R. 10(C), a copy of any “written instrument” that is attached to
a pleading is a part of the pleading “for all purposes.” “Thus, an attachment to the
pleading can be considered a part of the pleading if it is a written instrument, and is
proper evidence to rely on when moving for summary judgment.” U.S. Bank, N.A. v.
Goldsmith, 10th Dist. Franklin No. 14AP-783, 2015-Ohio-3008, ¶ 10. An assignment of
mortgage is a “written instrument.” See U.S. Bank, N.A. v. Crow, 7th Dist. Mahoning
No. 15 MA 0113, 2016-Ohio-5391, ¶ 29.
{¶ 66} And although Zhao did not authenticate these assignments in his affidavit,
he was not required to. Under Evid.R. 902, certain categories of documents are
designated as “self-authenticating” documents that do not require extrinsic evidence of
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authenticity to be admissible. Among those are “acknowledged documents,” which are
“[d]ocuments accompanied by a certificate of acknowledgment executed in the manner
provided by law by a notary public * * *.” Evid.R. 902(8). The assignments from
MERS to BONY are notarized, so they are self-authenticating, and no further
authentication was necessary for them to be proper summary judgment evidence.
{¶ 67} Next, BONY assigned the mortgage to Citibank on November 17, 2017.
Citibank included a copy of the November 17 assignment with its amended answer,
crossclaim, and counterclaim. Because the assignment was included with a pleading, it is
proper summary judgment evidence, Goldsmith at ¶ 10, and because it is notarized, it is
self-authenticating under Evid.R. 902(8).
{¶ 68} Finally, Citibank assigned the mortgage to U.S. Bank on January 26, 2018.
Citibank included a copy of the January 26 assignment with its motion for summary
judgment, and Zhao authenticated the assignment in his affidavit that was included with
the motion for summary judgment.
{¶ 69} These assignments show an unbroken chain from MILA—the original
lender—to U.S. Bank—the party seeking to enforce the mortgage—and demonstrate that
U.S. Bank is entitled to enforce the mortgage through foreclosure proceedings.
{¶ 70} In sum, the record supports summary judgment in U.S. Bank’s favor. Zhao
properly authenticated Nationstar’s business records—including the note and mortgage—
presented admissible evidence that Nationstar properly sent Boreman a notice of default
as required by the terms of the note and mortgage, demonstrated the amount Boreman
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owed under the note, and established U.S. Bank’s entitlement to enforce the note and
mortgage. Despite U.S. Bank presenting evidence showing that there are no genuine
issues of material fact remaining for trial, Boreman failed to meet his reciprocal burden
of pointing to evidence in the record showing that facts remain in dispute. Accordingly,
we find that summary judgment in U.S. Bank’s favor is appropriate, and Boreman’s
second assignment of error is not well-taken.
III. Conclusion
{¶ 71} Based on the foregoing, the July 26, 2018 and August 9, 2019 judgments of
the Ottawa County Court of Common Pleas are affirmed. Boreman is ordered to pay the
costs of this appeal pursuant to App.R. 24.
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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