PNC Bank, Natl. Assn. v. Graham

[Cite as PNC Bank, Natl. Assn. v. Graham, 2022-Ohio-888.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
PNC BANK, NATIONAL CASE NO. 2021-L-076
ASSOCIATION,
Plaintiff, Civil Appeal from the
Court of Common Pleas
-v-
RON GRAHAM a.k.a. Trial Court No. 2019 CF 001743
RON M. GRAHAM,
Defendant-Appellant,
KIMBERLY GRAHAM, et al.,
Defendants,
TAX EASE OHIO, LLC,
Defendant/Cross Claimant-
Appellee.
OPINION
Decided: March 21, 2022
Judgment: Affirmed
Ron Graham, pro se, 521 Malvern Drive, Painesville, OH 44077 (Defendant-Appellant).
Suzanne M. Godenswager, Sandhu Law Group, LLC, 1213 Prospect Avenue, Suite 300,
Cleveland, OH 44115 (For Defendant-Cross Claimant-Appellee).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Ron Graham a.k.a Ron M. Graham, appeals summary judgment
granted in favor of appellee, Tax Ease Ohio, LLC (“Tax Ease”). We affirm.
{¶2} In October 2019, PNC Bank, National Association (“PNC”) filed a
foreclosure complaint against Graham, titled owner of real property encumbered by a
mortgage held by PNC. In addition, the complaint named other defendants who may
have interest in the subject property, including Tax Ease. Tax Ease filed a cross-claim,
asserting a first lien on the property by virtue of four tax certificates that it held and seeking
foreclosure to satisfy the amount of taxes, assessments, penalties, charges, and interest
associated with the tax certificates together with attorney’s fees and the costs of the
action.
{¶3} Thereafter, Tax Ease filed a motion for summary judgment on its cross-
claim, and Graham responded in opposition. The trial court granted Tax Ease’s motion
and issued a decree in foreclosure, finding that there was no just reason for delay in
entering judgment. See Civ.R. 54(B).
{¶4} In his sole assigned error, Graham maintains:
Reviewing the Appellee’s Motion for Summary Judgment on
its Cross-Claims de novo, the record is clear and convincing
that the trial court erred to the prejudice of the Appellant by
granting the Appellee’s Motion for Summary Judgment in
favor of the Appellee.
{¶5} “We review decisions awarding summary judgment de novo, i.e.,
independently and without deference to the trial court’s decision.” Hedrick v. Szep, 11th
Dist. Geauga No. 2020-G-0272, 2021-Ohio-1851, ¶ 13, citing Grafton v. Ohio Edison Co.,
77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Civ.R. 56(C) specifically provides that before summary
judgment may be granted, it must be determined 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;
and (3) it appears from the evidence that reasonable minds
can come to but one conclusion, and viewing such evidence
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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); Allen v.
5125 Peno, LLC, 2017-Ohio-8941, 101 N.E.3d 484, ¶ 6 (11th Dist.), citing Holliman v.
Allstate Ins. Co., 86 Ohio St.3d 414, 415, 715 N.E.2d 532 (1999). “The initial burden is
on the moving party to set forth specific facts demonstrating that no issue of material fact
exists and the moving party is entitled to judgment as a matter of law.” Allen at ¶ 6, citing
Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). “If the movant
meets this burden, the burden shifts to the nonmoving party to establish that a genuine
issue of material fact exists for trial.” Allen at ¶ 6, citing Dresher at 293. In determining
the propriety of summary judgment, the court may consider “the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence, and
written stipulations of fact, if any, timely filed in the action[.]” Civ.R. 56(C).
{¶6} Here, in its motion for summary judgment, Tax Ease maintained that it was
the holder of four tax certificates purchased from the Lake County Treasurer in
accordance with R.C. 5721.30, et seq.
Ohio’s tax certificate legislation, R.C. 5721.30 through
5721.43, allows a county government to sell tax certificates to
private investors. A tax certificate entitles the certificate
holder to the first lien on the real property. R.C. 5721.32. A
property owner can redeem the certificate and remove the lien
by paying the certificate holder the purchase price plus
interest, penalties, and costs. R.C. 5721.38. If the property
owner fails to redeem the certificates, the tax certificate holder
may initiate foreclosure proceedings on the real property after
complying with certain statutory requirements.
(Citation omitted.) Woods Cove II, L.L.C. v. Am. Guaranteed Mgmt. Co., L.L.C., 8th Dist.
Cuyahoga No. 103652, 2016-Ohio-3177, ¶ 2. R.C. 5721.37(F) provides that “[t]he tax
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certificate purchased by the certificate holder is presumptive evidence in all courts and
boards of revision and in all proceedings, including, without limitation, at the trial of the
foreclosure action, of the amount and validity of the taxes, assessments, charges,
penalties by the court and added to such principal amount, and interest appearing due
and unpaid and of their nonpayment.”
{¶7} In support of its motion for summary judgment, Tax Ease attached the
affidavit of Jade Vowels. Therein, Vowels averred that she is the Servicing Manager of
Cazenovia Creek Investment Management, LLC (“Cazenovia”). Vowels maintained that
Cazenovia is the servicer for Tax Ease and that she had personal knowledge of the
information set forth in her affidavit. Vowels averred that she had reviewed the tax
certificates relative to the real property and affirmed that Tax Ease is the holder and owner
of those certificates. Vowels stated that the certificates attached to Tax Ease’s cross-
claim, which were again attached to Vowels’ affidavit, were true and accurate copies.
Vowels’ affidavit indicated the following amounts due: the certificate redemption prices of
$436.97, $2,736.67, $2,744.16, and $2,748.96, plus interest, together with $1,334.88 for
taxes and other charges Tax Ease paid to the county treasurer that were not covered by
the tax certificate, and attorney fees in the amount of $1,525.00. Tax Ease further filed
an affidavit regarding attorney fees from its counsel, averring that Tax Ease incurred fees
in the amount of $1,525.00.
{¶8} On appeal, Graham first argues that Vowels’ affidavit was not based on
personal knowledge and that the records attached did not constitute “business records”
so as to be excepted from the hearsay rule.
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{¶9} “To be properly considered in summary judgment, an affidavit ‘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.’” M&T Bank v. Bozickovich, 11th Dist. Lake No. 2016-L-012, 2017-
Ohio-9101, ¶ 24, quoting Civ.R. 56(E). “‘Personal knowledge’ is defined as ‘“knowledge
of a factual truth which does not depend on outside information or hearsay.”’” Bozickovich
at ¶ 24, quoting Portage Cty. Commrs. v. O’Neil, 11th Dist. Portage No. 2013-P-0066,
2015-Ohio-808, ¶ 16, quoting Residential Funding Co., LLC v. Thorne, 6th Dist. Lucas
No. L-09-1324, 2010-Ohio-4271, ¶ 64.
{¶10} “‘The “mere assertion of personal knowledge satisfies the personal
knowledge requirement of Civ.R. 56(E) if the nature of the facts in the affidavit combined
with the identity of the affiant creates a reasonable inference that the affiant has personal
knowledge of the facts in the affidavit.”’” Bozickovich at ¶ 25, quoting Nationstar Mtge.,
L.L.C. v. Hayhurst, 11th Dist. Trumbull No. 2014-T-0102, 2015-Ohio-2900, ¶ 26, quoting
Bank of Am., N.A. v. Merlo, 11th Dist. Trumbull No. 2012-T-0103, 2013-Ohio-5266, ¶ 25.
{¶11} Here, Vowels asserted that her affidavit was made with personal
knowledge, that she is the service manager of Tax Ease’s agent and servicer of the tax
certificates, that she reviewed Tax Ease’s records, and that the tax certificates were true
and accurate copies. Based on these averments, we conclude that Vowels’ affidavit
sufficiently set forth that it was made with personal knowledge, and Graham did not point
to evidence to the contrary in his opposition to summary judgment. See O’Neil at ¶ 17-
18 (affidavit of officer of loan servicer who averred that he had reviewed business records
sufficient to demonstrate personal knowledge regarding default on loan).
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{¶12} Next, with regard to hearsay, Evid.R. 801(C) defines “hearsay” as “a
statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” Graham contends that the
tax certificates attached to Vowels’ affidavit constitute inadmissible hearsay and that
Vowels’ affidavit was insufficient to authenticate the tax certificates.
{¶13} Tax Ease maintains that the records are admissible under Evid.R. 803(14),
which provides:
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
***
(14) Records of Documents Affecting an Interest in
Property. The record of a document purporting to establish
or affect an interest in property, as proof of the content of the
original recorded document and its execution and delivery by
each person by whom it purports to have been executed, if
the record is a record of a public office and an applicable
statute authorizes the recording of documents of that kind in
that office.
{¶14} In Tax Ease Ohio, II, L.L.C. v. Leach, 8th Dist. Cuyahoga No. 110119, 2021-
Ohio-2841, ¶ 17, the Eighth District Court of Appeals addressed tax certificates attached
to an affidavit prepared by Vowels in that case. It determined:
A tax certificate is a tax lien on real property. Capitalsource
Bank Fbo Aeon Fin., L.L.C. v. Donshirs Dev. Corp., C.P. No.
11-767170, 2012 Ohio Misc. Lexis 302, 6 (Sept. 13, 2012),
rev’d on other grounds, 8th Dist. Cuyahoga No. 99032, 2013-
Ohio-1563, 2013 WL 1697492; see also R.C. 5721.30(Q)
(“‘Certificate period’ means the period of time after the sale or
delivery of a tax certificate within which a certificate holder
must initiate an action to foreclose the tax lien represented by
the certificate.”) (emphasis added.). And R.C. 5721.35
authorizes the county treasurer to record a tax certificate as
“a mortgage of land” in the county recorder’s office of the
county in which the certificate parcel is situated. Thus, tax
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certificates are records of documents establishing or affecting
an interest in property and are admissible under Evid.R.
803(14) if properly authenticated. Our review demonstrates
that Vowels’[] affidavit properly authenticated the tax
certificates at issue in this case.
(Footnotes omitted.)
{¶15} Likewise, here, Vowels averred that the copies of the tax certificates
attached to the crossclaim were true and authentic copies. See Leach at ¶ 21 (“Vowels’[]
uncontroverted sworn statement that the tax certificates were ‘true and accurate’ copies
of the original documents was sufficient to authenticate the tax certificates.”); State ex
rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981) (documents
attached to an affidavit submitted in support or opposition to summary judgment generally
may be authenticated by an averment in the affidavit that the copies are “true copies and
reproductions”).
{¶16} Graham next argues that Tax Ease failed to establish standing. “[U]nder
R.C. 5721.36(A)(1)-(2) and 5721.37(A)(1), only the holder of a tax certificate, or the
holder’s ‘secured party,’ has standing to initiate an action for foreclosure by filing a notice
of intent to foreclose with a county treasurer.” Tax Ease Ohio LLC v. Wells, 2d Dist.
Montgomery No. 28376, 2020-Ohio-306, ¶ 20. R.C. 5721.30(C) defines a “certificate
holder” as “a person, including a county land reutilization corporation, that purchases or
otherwise acquires a tax certificate under section 5721.32, 5721.33, or 5721.42 of the
Revised Code, or a person to whom a tax certificate has been transferred pursuant to
section 5721.36 of the Revised Code.”
{¶17} As set forth above, Vowels’ affidavit demonstrated that Tax Ease held the
certificates at issue, and the four tax certificates authenticated by Vowels list Tax Ease
as the certificate purchaser. Graham did not point to any evidence to the contrary in his
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response to summary judgment and thus failed to establish that a genuine issue of
material fact existed for trial with respect to standing.
{¶18} Graham further argues that Tax Ease did not demonstrate substantial
compliance with statutory requirements related to the tax certificates and failed to provide
a payment history. However, as set forth above, R.C. 5721.37(F) provides, in relevant
part, that the tax certificate is presumptive evidence of “the amount and validity of the
taxes, assessments, charges, penalties by the court and added to such principal amount,
and interest appearing due and unpaid and of their nonpayment.” Graham did not rebut
the statutory presumption regarding the validity of the certificates or the amount due in
response to summary judgment.
{¶19} Last, Graham argues that the court erred in awarding Tax Ease attorney’s
fees. However, R.C. 5721.37(F) provides that “[e]xcept as may otherwise be provided in
sections 323.65 to 323.79 of the Revised Code, upon confirmation of sale, the court or
board of revision shall order payment of all costs related directly or indirectly to the tax
certificate, including, without limitation, attorney’s fees of the holder’s attorney in
accordance with section 5721.371 of the Revised Code.” R.C. 5721.371(B)(1) provides
that “[f]ees less than or equal to two thousand five hundred dollars shall be presumed to
be reasonable.” Graham did not point to any evidence in response to summary judgment
demonstrating that a material question remained relating to the award of attorney’s fees.
{¶20} Based upon the foregoing, Tax Ease met its burden of demonstrating the
absence of triable issues relating to its cross-claim, and Graham failed to meet his
reciprocal burden. Accordingly, Graham’s sole assigned error lacks merit.
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{¶21} The judgment is affirmed.
MARY JANE TRAPP, J.,
JOHN J. EKLUND, J.,
concur.
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