[Cite as Bank of Am., N.A. v. Michko, 2015-Ohio-3137.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 101513
BANK OF AMERICA, N.A. PLAINTIFF-APPELLEE vs.
KATHERINE L. MICHKO, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. 12-CV-784769
BEFORE: E.A. Gallagher, P.J., S. Gallagher, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: August 6, 2015 ATTORNEYS FOR APPELLANT
Marc E. Dann William C. Behrens Paul B. Bellamy Grace M. Doberdruk James R. Douglass Daniel M. Solar The Dann Law Firm P.O. Box 6031040 Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Edward G. Bohnert Rachel M. Kuhn Mike L. Wiery Reimer, Arnovitz, Chernek & Jeffrey Co., L.P.A. 30455 Solon Road Solon, Ohio 44139 EILEEN A. GALLAGHER, P.J.:
{¶1} In this foreclosure action, defendant-appellant Katherine Michko appeals
from the decision of the trial court granting summary judgment in favor of substitute
plaintiff-appellee Bank of America, N.A. Finding no merit to the appeal, we affirm the
trial court’s judgment.
Factual and Procedural Background
{¶2} On December 2, 2009, Michko executed a note payable to Primary Capital
Advisors LC (“Primary Capital Advisors”) and its successors and assigns for the principal
amount of $73,641. To secure payment of the note, Michko executed a mortgage on real
property located at 7456 Columbia Road in Olmsted Falls, Ohio in favor of Mortgage
Electronic Registration Systems, Inc. (“MERS”) as nominee for Primary Capital
Advisors.1 The mortgage was recorded on December 4, 2009.
{¶3} Primary Capital Advisors endorsed the note to Bank of America, N.A., and
Bank of America, N.A. thereafter endorsed the note in blank. On March 1, 2012, MERS
assigned the mortgage “together with the note(s) and obligations therein described” to
“Bank of America, N.A. successor by merger to BAC Home Loans Servicing, LP.” The
assignment was recorded on March 8, 2012. Because the assignment of mortgage was
executed by MERS in its own name, rather than in its capacity as nominee for Primary
Capital Advisors, a corrective assignment of mortgage was executed by which MERS, as
1 Michko’s husband, Thomas Michko, also executed the mortgage “[s]igning solely to release [his] dower rights.” nominee for Primary Capital Advisors and its successors and assigns, assigned the
mortgage to Bank of America, N.A. The corrective assignment of mortgage was
executed on May 25, 2012 and recorded on June 11, 2012.
{¶4} Michko failed to make payments due on the note, and on June 12, 2012, Bank
of America, N.A., successor by merger to BAC Home Loans Servicing, LP, filed a
complaint for foreclosure and declaratory judgment to recover the unpaid balance due on
the note (count one), to foreclose on the mortgaged property (count two) and to obtain a
declaration that a warranty deed in the chain of title for the property was valid despite a
defective notary acknowledgment clause (count three). As to the first two counts, the
complaint alleged that Bank of America, N.A., successor by merger to BAC Home Loans
Servicing, LP, was the holder of the note and mortgage, that it had accelerated the amount
due because of a default in payment, that it had complied with all conditions precedent set
forth in the note and mortgage and that a principal balance of $71,779.58 plus interest at
the rate of 5.5% per annum from October 1, 2011 was due and owing on the note. With
respect to the third count, the complaint alleged that although Denise Walker, the
grantor’s wife, had signed the warranty deed, “as a result of the mutual mistake of the
parties,” her name had been omitted from the deed’s notary acknowledgment clause.
Copies of the note (with the endorsement from Primary Capital Advisors to Bank of
America, N.A. and the endorsement in blank by Bank of America, N.A.), the mortgage,
the assignment of mortgage, the corrective assignment of mortgage and a prior warranty
deed for the property from Mark Walker to Richard Gardner were attached to the complaint. Michko, Thomas Michko2 and Denise Walker were named as the original
defendants in the action. In December 2012, Bank of America, N.A., successor by
merger to BAC Home Loans Servicing, LP, was granted leave to amend the complaint to
add grantor Mark Walker and grantee Richard Gardner as new party defendants with
respect to the third count of the complaint.
{¶5} The case was referred to mediation. When the parties were unable to resolve
the matter, it was returned to the active docket.
{¶6} In October 2013, Bank of America, N.A., successor by merger to BAC Home
Loans Servicing, LP, thereafter filed a motion pursuant to Civ.R. 17 to substitute “Bank
of America, N.A.” as the named plaintiff in the case “by virtue of [the corrective
assignment] of the mortgage.” A motion for default judgment was also filed. Michko
did not oppose the substitution of Bank of America, N.A. for Bank of America, N.A.,
successor by merger to BAC Home Loans Servicing, LP, as the plaintiff. On October
25, 2013, the trial court granted the motion for substitution and substituted Bank of
America, N.A. (hereinafter “Bank of America”) for the originally named plaintiff.
{¶7} In November 2013, Michko was granted leave to file an answer. In her
answer, Michko denied the material allegations of the first two counts of the amended
complaint relating to the claims of default and foreclosure but admitted that Bank of
America was entitled to the declaration sought in count three of the amended complaint,
2 Thomas Michko died on August 12, 2010, and was later dismissed from the action without prejudice. Michko’s unknown spouse, if any, was also named as a John Doe defendant. i.e., that the warranty deed in the chain of title to the property was valid despite a
defective notary acknowledgment clause. The answer raised a single defense — that the
complaint failed to state a claim upon which relief could be granted. The magistrate
thereafter granted the motion for default judgment as to all defendants except Michko.
{¶8} On February 13, 2014, Bank of America filed a motion for summary
judgment on counts one and two of the amended complaint and a motion for judgment on
the pleadings as to the third count of the amended complaint. In its motion for summary
judgment, Bank of America asserted that it was entitled to judgment on the note and a
decree of foreclosure as a matter of law because there were no genuine issues of fact that
(1) by virtue of the assignment of the mortgage from MERS (as nominee for Primary
Capital Advisors), the endorsement of the note from Primary Capital Advisors and Bank
of America’s possession of the original note endorsed in blank, Bank of America was the
current holder of the note and mortgage, (2) Michko’s loan was in default, (3) Bank of
America had exercised its option to accelerate the balance due on the note and (4) a
principal balance of $71,779.58 plus interest at the rate of 5.5% per annum from October
1, 2011 was due on the note. Bank of America supported its motion with an affidavit
from Jenifer Frances Kotchey, assistant vice president of Bank of America, along with
copies of the note, the mortgage, the assignment of mortgage, the corrective assignment
of mortgage and an account information statement for Michko’s account — which
Kotchey attested in her affidavit to be “true and exact copies” or “true and correct copies”
of the originals. Kotchey averred, based on her review of Michko’s loan documents and “information taken from [Bank of America’s] business records” that Bank of America
was the assignee of the mortgage for Michko’s loan, that the note had been “duly
indorsed” and that Bank of America “directly or through an agent, has possession of the
promissory note and held the note at the time of filing the foreclosure complaint.”
Kotchey further averred that Michko had defaulted on the loan by failing to make any
payments due on or after November 1, 2011 and that a principal balance of $71,779.58,
plus interest at the rate of 5.5 percent per annum from October 1, 2011 was due and
owing on the note.
{¶9} Bank of America filed a separate motion for judgment on the pleadings based
on Michko’s admission in her answer that it was entitled to a declaration that the warranty
deed was valid notwithstanding the omission of Denise Walker’s name from the notary
acknowledgment clause. Michko did not oppose either motion. On April 23, 2014, the
magistrate issued a decision granting both motions and entering judgment on the note and
a decree of foreclosure in favor of Bank of America. Michko filed objections to the
magistrate’s decision.3 The trial court overruled Michko’s objections and, on May 21,
3 In her objections to the magistrate’s decision, Michko argued that genuine issues of material fact existed regarding Bank of America’s entitlement to enforce the note and foreclose on the mortgage because: (1) Bank of America had failed to establish that all conditions precedent to foreclosure had been satisfied, i.e., it introduced no evidence that it had the face-to-face meeting with Michko, allegedly required under United States Department of Housing and Urban Development (“HUD”) regulations, prior to filing the foreclosure action; (2) no payment records were attached to Kotchey’s affidavit; (3) Bank of America introduced no evidence of its merger with BAC Home Loans Servicing, LP; (4) the endorsement on the note from Primary Capital Advisors to “Bank of America, N.A.” conflicted with the assignment of mortgage from MERS to “Bank of America, N.A., successor by merger 2014, entered a judgment entry adopting the magistrate’s decision (1) granting summary
judgment and a decree of foreclosure in favor of Bank of America on the first and second
counts of the amended complaint, (2) granting judgment on the pleadings in favor of
Bank of America and declaring that the warranty deed was a valid conveyance of the
interests of Mark and Denise Walker and that Michko was the owner in fee simple of the
property on the third count of the amended complaint and (3) granting default judgment
in favor of Bank of America against the remaining defendants.
{¶10} Michko appealed the trial court’s judgment, raising the following three
assignments of error for review:
FIRST ASSIGNMENT OF ERROR: The trial court erred when it granted appellee Bank of America’s motion for summary judgment when appellee did not comply with all conditions precedent to foreclosure of an FHA note and mortgage.
SECOND ASSIGNMENT OF ERROR: The trial court erred by granting appellee’s motion for summary judgment when the affidavit of Jenifer Frances Kotchey was deficient to authenticate Civil Rule 56 evidence.
to BAC Home Loans Servicing, LP”; (4) Bank of America’s subsequent endorsement of the note in blank raised an issue as to whether the note had been sold to any other entity; (5) Kotchey’s affidavit did not indicate that she viewed the original note as opposed to an electronic scan of the note and (6) the corrective assignment of mortgage was invalid because it “was signed by Bank of America employees to assign the mortgage to Bank of America.” For good reason, Michko has abandoned most of these arguments on appeal.
With respect to the magistrate’s ruling on Bank of America’s motion for judgment on the pleadings, Michko argued that Bank of America needed to point to some evidence in the record to support the magistrate’s finding that the omission of Denise Walker’s name from the notary acknowledgment clause was a mutual mistake. Because there was no evidence of the Walkers’ intentions in the record, Michko argued a genuine issue of material fact remained for trial as to that claim. THIRD ASSIGNMENT OF ERROR: The [trial] court erred by adopting the magistrate’s decision that found that there was a mutual mistake in the acknowledgment clause.
Law and Analysis
Motion for Summary Judgment Standard of Review
{¶11} We review summary judgment rulings de novo, applying the same standard
as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241
(1996). We accord no deference to the trial court’s decision and independently review
the record to determine whether summary judgment is appropriate.
{¶12} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled
to judgment as a matter of law and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is adverse to the
nonmoving party.
{¶13} On a motion for summary judgment, the moving party carries an initial
burden of identifying specific facts in the record that demonstrate its entitlement to
summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264
(1996). If the moving party fails to meet this burden, summary judgment is not
appropriate; if the moving party meets this burden, the nonmoving party has the
reciprocal burden to point to evidence of specific facts in the record demonstrating the
existence of a genuine issue of material fact for trial. Id. at 293. Summary judgment is
appropriate if the nonmoving party fails to meet this burden. Id. Compliance with HUD Regulations
{¶14} In her first assignment of error, Michko argues that the trial court erred in
granting summary judgment to Bank of America on the first two counts of the complaint
because Bank of America failed to present evidence establishing that it complied with
HUD loss mitigation requirements and the face-to-face meeting requirement set forth in
24 C.F.R. 203.604 prior to filing its foreclosure action. Michko asserts that the note and
mortgage were an “FHA note and mortgage,”4 that compliance with HUD regulations
incorporated by reference in the note and mortgage were conditions precedent to filing for
foreclosure and that Bank of America was not entitled to accelerate the loan or to
foreclose on the mortgage in the absence of evidence that it had complied with the
applicable HUD regulations.
{¶15} Paragraph 6(B) of the note provides:
Default If Borrower defaults by failing to pay in full any monthly payment,
then Lender may, except as limited by regulations of the Secretary in the
case of payment defaults, require immediate payment in full of the principal
balance remaining due and all accrued interest. Lender may choose not to
exercise this option without waiving its rights in the event of any
subsequent default. In many circumstances, regulations issued by the
Secretary will limit Lender’s rights to require immediate payment in full in
4 The note indicates that it is an “FHA Multistate Fixed Rate Note.” The mortgage indicates that it is an “FHA Ohio Open-End Mortgage.” the case of payment defaults. This Note does not authorize acceleration
when not permitted by HUD regulations. As used in this Note, “Secretary”
means the Secretary of the Housing and Urban Development or his or her
designee.
{¶16} Paragraph 9(d) of the mortgage similarly provides:
Regulations of HUD Secretary. In many circumstances
regulations issued by the Secretary will limit Lender’s rights, in the
case of payment defaults, to require immediate payment in full and
foreclose if not paid. This Security Instrument does not authorize
acceleration or foreclosure if not permitted by regulations of the
Secretary.
{¶17} Bank of America does not dispute that the HUD regulations referenced by
Michko applied to the note and mortgage at issue. Rather, Bank of America contends
that because Michko did not specifically raise Bank of America’s alleged failure to
comply with HUD regulations in her answer, its compliance with HUD regulations was
not “at issue in this case” and, therefore, it was not required to submit evidence
establishing the absence of a genuine issue of material fact regarding its compliance with
HUD regulations to meet its burden on summary judgment. We agree.
{¶18} This court has previously held that when federal regulations relating to
default and acceleration of loans are incorporated into the terms of a note and mortgage,
compliance with those regulations are conditions precedent to foreclosure. Secy. of Veterans Affairs v. Anderson, 8th Dist. Cuyahoga No. 99957, 2014-Ohio-3493, ¶ 15
(where federal regulations regarding default and acceleration of loans guaranteed by the
Department of Veterans’ Affairs were incorporated into note and mortgage, compliance
with those regulations was a condition precedent to foreclosure). As such, they are
subject to the special pleading requirements of Civ.R. 9(C). Id. at ¶ 15-16.
{¶19} Civ.R. 9(C) provides that “[i]n pleading the performance or occurrence of
conditions precedent, it is sufficient to aver generally that all conditions precedent have
been performed or have occurred.” “Thus, where a cause of action is contingent upon
the satisfaction of some condition precedent, Civ.R. 9(C) requires the plaintiff to plead
that the condition has been satisfied, and permits the plaintiff to aver generally that any
conditions precedent to recovery have been satisfied, rather than requiring the plaintiff to
detail specifically how each condition precedent has been satisfied.” Anderson at ¶ 16,
citing Lewis v. Wal-Mart, Inc., 10th Dist. Franklin No. 93AP-121, 1993 Ohio App.
LEXIS 3920, *8 (Aug. 12, 1993). “In contrast to the liberal pleading standard for a party
alleging the satisfaction of conditions precedent, a party denying the performance or
occurrence of a condition precedent must do so specifically and with particularity.”
Anderson at ¶ 16, citing Lewis at *8. Conditions precedent that are not denied in the
manner provided by Civ.R. 9(C) are deemed admitted. See, e.g., Anderson at ¶ 17; Bank
of Am., N.A. v. Pate, 8th Dist. Cuyahoga No. 100157, 2014-Ohio-1078, ¶ 9.
{¶20} The first paragraph of the complaint states that plaintiff “has complied with
all conditions precedent as set forth in the note and mortgage.” This was sufficient under Civ.R. 9(C) to shift the burden to Michko to identify “specifically and with particularity”
any conditions precedent with which Bank of America had allegedly failed to comply in
her answer. Civ.R. 9(C).
{¶21} In her answer, Michko generally denied all the allegations of counts one and
two of the complaint (except to admit that she and/or other defendants have or claim to
have an interest in the property) but made no specific reference to Bank of America’s
alleged noncompliance with any HUD regulations or any other requirements relating to
the default, acceleration or foreclosure of FHA loans. Thus, Michko did not comply with
Civ.R. 9(C)’s requirement that “[a] denial of performance or occurrence [of a condition
precedent] shall be made specifically and with particularity.” Civ.R. 9(C). Because
Michko’s answer was “insufficient to put [Bank of America’s] compliance with the
federal regulations * * * at issue in the case,” Bank of America had “no burden” to
establish the absence of a genuine issue of material fact regarding its compliance with
those regulations in its motion for summary judgment. Anderson at ¶ 18; see also Bank
of Am., N.A. v. Duran, 6th Dist. Lucas No. L-14-1031, 2015-Ohio-630, ¶ 48-49 (where
homeowner failed to deny compliance with HUD regulations with specificity or
particularity, the satisfaction of these conditions precedent was deemed admitted and no
genuine issue of material fact existed on the issue); PNC Mtge. v. Garland, 7th Dist.
Mahoning No. 12 MA 222, 2014-Ohio-1173, ¶ 32-35, 51 (homeowner waived argument
that bank failed to comply with requirements of HUD regulations as a condition precedent to foreclosure by failing to plead with particularity in her answer which specific
regulations were not complied with).
{¶22} Accordingly, the trial court did not err in granting summary judgment on
this basis, and Michko’s first assignment of error is overruled.
Evidence in Support of Motion for Summary Judgment
{¶23} Michko’s second assignment of error challenges the sufficiency of the
affidavit and related documentation that Bank of America submitted in support of its
motion for summary judgment.
Personal Knowledge Requirement under Civ.R. 56(E)
{¶24} Michko first argues that Kotchey’s affidavit was not based on personal
knowledge as required under Civ.R. 56(E) and was, therefore, insufficient to carry Bank
of America’s burden on summary judgment. Michko asserts that Kotchey’s affidavit is
nothing more than “rubber stamp testimony” and that it does not comply with Civ.R.
56(E) because it fails to set forth in detail the factual basis for her claim that she has
personal knowledge regarding the facts to which she testifies in the affidavit.
Specifically, Michko complains that Kotchey never “describes” in her affidavit “what her
job duties may be.” She also objects to Kotchey’s assertion that she has access to Bank
of America’s business records without “defin[ing] what those records are.”
{¶25} Michko further argues that the affidavit “did not comply with what was
required to demonstrate personal knowledge” as to whether Bank of America had
possession of the original note because (1) none of the documents attached to the affidavit demonstrates that Bank of America had possession of the original note when the
complaint was filed, (2) Kotchey did not state specifically in her affidavit that she had
ever seen the original note or that she had ever compared the original note to the copy
attached to her affidavit and (3) Kotchey’s affidavit does not state that she viewed the
original note as opposed to an electronic scan of the note. Michko contends that a
factual issue, therefore, remained for trial as to whether Bank of America had possession
of the original note when the complaint was filed.
{¶26} Michko, however, did not oppose Bank of America’s motion for summary
judgment and thus did not challenge Kotchey’s affidavit (or any of the other documents
Bank of America submitted in support of its motion for summary judgment) at that time.
Failure of a party to move to strike or otherwise object to documentary evidence
submitted by an opposing party in support of, or in opposition to, a motion for summary
judgment waives any error in considering that evidence under Civ.R. 56(C). Darner v.
Richard E. Jacobs Group, Inc., 8th Dist. Cuyahoga No. 89611, 2008-Ohio-959, ¶ 15;
Home Bank, F.S.B. v. Papadelis, 8th Dist. Cuyahoga Nos. 87527, 87528, 87529 and
87530, 2006-Ohio-5453, ¶ 31, citing Stegawski v. Cleveland Anesthesia Group, Inc., 37
Ohio App.3d 78, 83, 523 N.E.2d 902 (8th Dist.1987); see also Dzambasow v. Abakumov,
8th Dist. Cuyahoga No. 86021, 2005-Ohio-6719, ¶ 27 (“‘[I]f the opposing party fails to
object to improperly introduced evidentiary materials, the trial court may, in its sound
discretion, consider those materials in ruling on the summary judgment motion.’”),
quoting Christe v. GMS Mgt. Co., Inc., 124 Ohio App.3d 84, 90, 705 N.E.2d 691 (9th Dist.1997). This includes objections to affidavits submitted in support of a motion for
summary judgment. See, e.g., Huntington Natl. Bank Mtge. Loan Dept. v. Peppel, 12th
Dist. Warren No. CA2013-11-114, 2014-Ohio-3084, ¶ 10-11 (defendant waived argument
that portions of affidavit submitted in support of summary judgment motion, which were
purportedly based on business records of plaintiff bank that were not attached to affidavit,
should be stricken where defendant did not file a motion to strike or raise any other
objections with the trial court regarding those portions of the affidavit); Chase Bank USA,
NA v. Lopez, 8th Dist. Cuyahoga No. 91480, 2008-Ohio-6000, ¶ 16 (defendant could not
raise for the first time on appeal that affidavit attached to plaintiff’s motion for summary
judgment did not meet the requirements of Civ.R. 56(E)).
{¶27} Given the absence of any timely objection by Michko, Michko waived such
objections, and the trial court could properly consider Kotchey’s affidavit in ruling on
Bank of America’s motion for summary judgment.
{¶28} Likewise, with the exception of her argument that Kotchey failed to indicate
in her affidavit that she viewed the original note as opposed to an electronic scan of the
note, Michko did not raise any of the issues she now raises with respect to Kotchey’s
affidavit in her objections to the magistrate’s decision. It is well established that a party
cannot raise arguments and issues for the first time on appeal that he or she failed to raise
before the trial court. See, e.g., Mosley v. Cuyahoga Cty. Bd. of Mental Retardation, 8th
Dist. Cuyahoga No. 96070, 2011-Ohio-3072, ¶ 55, citing Dolan v. Dolan, 11th Dist.
Trumbull Nos. 2000-T-0154 and 2001-T-0003, 2002-Ohio-2440, ¶ 7, citing Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 322 N.E.2d 629 (1975); Papadelis, 2006-Ohio-5453
at ¶ 32. This rule applies with equal force in appeals of summary judgment proceedings
in foreclosure actions. See, e.g., Wells Fargo Bank, N.A. v. Geiser, 12th Dist. Butler No.
CA2013-06-103, 2014-Ohio-3379, ¶ 10, fn. 3 (“‘It is axiomatic that a party cannot raise
new issues or legal theories for the first time on appeal and failure to raise an issue before
the trial court results in waiver of that issue for appellate purposes.’”), quoting Dudley v.
Dudley, 12th Dist. Butler No. CA2008-07-165, 2009-Ohio-1166, ¶ 18. Therefore, she
has waived them.
{¶29} Even if, however, we were to consider the merits of Michko’s arguments
related to Kotchey’s affidavit, we would find that Kotchey’s affidavit was sufficient to
comply with Civ.R. 56(E) and to satisfy Bank of America’s burden on summary judgment
with respect to the facts asserted therein.
{¶30} Civ.R. 56(E) sets forth the requirements for affidavits submitted on
summary judgment. It provides, in relevant part:
Supporting 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. *
** {¶31} “‘Unless controverted by other evidence, a specific averment that an
affidavit pertaining to business is made upon personal knowledge of the affiant satisfies
the Civ.R. 56(E) requirement that affidavits both in support or in opposition to motions
for summary judgment show that the affiant is competent to testify to the matters stated.’”
Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502,
2013-Ohio-1657, ¶ 20, quoting Bank One, N.A. v. Swartz, 9th Dist. Lorain No.
03CA008308, 2004-Ohio-1986, ¶ 14, citing State ex rel. Corrigan v. Seminatore, 66 Ohio
St.2d 459, 423 N.E.2d 105 (1981), paragraph two of the syllabus. There is no
requirement that an affiant explain the basis for his or her personal knowledge where
personal knowledge can be reasonably inferred based on the affiant’s position and other
facts contained in the affidavit. Bank of Am. v. Lynch, 8th Dist. Cuyahoga No. 100457,
2014-Ohio-3586, ¶ 24-27, citing Nationstar Mtge., L.L.C. v. Perry, 8th Dist. Cuyahoga
No. 99497, 2013-Ohio-5024, ¶ 15, citing Najar at ¶ 74.
{¶32} Kotchey averred that her affidavit was based upon “information * * * taken
from [Bank of America’s] business records,” her review of Bank of America’s business
records, including those relating to the loan at issue, her “personal knowledge” of Bank of
America’s “procedures for creating [the records for the subject loan]” and her “personal
knowledge of how [Bank of America’s business] records are created and maintained.”
Kotchey further averred that the records were made at or near the time of the occurrence
of the matters recorded by persons with personal knowledge or from information
transmitted by persons with personal knowledge, that the records were kept in the course of Bank of America’s regularly conducted business activities and that it was the regular
practice of the bank to create such records.
{¶33} In our view, the facts stated in Kotchey’s affidavit, combined with the
position she holds at Bank of America and her assertions regarding her job duties there,
create a reasonable inference that she has personal knowledge of the facts contained in
her affidavit. Because they were not controverted by other evidence, her statements were
enough to satisfy Civ.R. 56(E). Everbank v. Katz, 8th Dist. Cuyahoga No. 100603,
2014-Ohio-4080, ¶ 4. Similar averments have been deemed sufficient to establish
compliance with Civ.R. 56(E) and to satisfy a plaintiff’s burden on summary judgment in
other foreclosure actions. See, e.g.,
JPMorgan Chase Bank, N.A. v. Dattilo, 8th Dist. Cuyahoga No. 101239,
2014-Ohio-5286, ¶ 8-9 (affidavit of bank vice president and supporting documentation
were sufficient to meet bank’s initial burden under Civ.R. 56 where affiant averred that
he was competent to testify, that he personally reviewed bank’s business records, that
appellant’s loan records were maintained by the bank in the course of regularly conducted
business activities, that the bank directly or through its agent is in possession of the
original note and was in possession of it prior to the filing of the complaint for
foreclosure and that the bank’s records demonstrated that appellant was in default,
identifying the amount due on the note); JPMorgan Chase Bank, NA v. Swan, 6th Dist.
Lucas No. L-14-1186, 2015-Ohio-1056, ¶ 13 (affidavit was based on personal
knowledge where affiant testified that he was a vice president of plaintiff bank, had personal knowledge of bank’s record-keeping system, knew that the records were kept in
the regular course of business and personally reviewed appellants’ loan records); see also
Wells Fargo Bank, N.A. v. Hammond, 8th Dist. Cuyahoga No. 100141, 2014-Ohio-5270,
¶ 31-36 (averments in affidavit were sufficient to establish that plaintiff possessed
original promissory note since 2008). 5 Upon Bank of America’s submission of this
evidence, the burden then shifted to Michko to present evidence rebutting Kotchey’s
assertion that she had personal knowledge of the matters referenced in her affidavit.
Michko, however, offered nothing in response.
{¶34} With respect to Michko’s argument that Kotchey’s affidavit was deficient
because Kotchey did not state that she personally viewed the original note (as opposed to
an electronic scan of the note) and compared the original to the copy of the note attached
to her affidavit before testifying that the copy was a “true and correct copy” of the
original, this court previously rejected such an argument in Hammond as follows:
As for the decision of the Fifth District Court of Appeals in [Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. Stark No. 2010-CA-000291, 2011-Ohio-3203 ¶ 46, 49], which provides that summary judgment affidavits based on documents must include an averment that the affiant compared copies of the documents attached to the affidavit with the originals, this court has not adopted this as a requirement under Civ.R. 56(E), nor do we intend to do so because the Ohio Supreme Court has not made this a requirement of Civ.R. 56(E). See HSBC Mtge. Servs. v. Williams, 12th Dist. Butler No. CA2013-09-174, 2014-Ohio-3778.
5 In this case, Kotchey’s averment that Bank of America possessed the original note at the time of filing the complaint was both supported by, and consistent with, the documents relating to Michko’s loan, i.e., there was both a formal assignment of the mortgage to Bank of America before the filing of the complaint and an endorsement of the note over to Bank of America (before Bank of America endorsed it in blank) before the filing of the complaint. * * * [W]e find appellant’s reliance on [HSBC Mtge. Servs. Inc. v. Edmon, 6th Dist. Erie No. E-11-046, 2012-Ohio-4990], to be misplaced. In Edmon, the Sixth District held that the trial court erred in granting summary judgment to the bank where the borrower demonstrated a triable issue of fact as to the authenticity of the promissory note by offering testimony showing that the loan servicing officer did not review the original promissory note prior to swearing in her affidavit that the copy of the note attached to complaint was a true and accurate copy of the original. In Edmon, the servicing officer admitted at her deposition that she never viewed the original note. In the case at hand, however, appellant has provided this court with no evidence to suggest that [the affiant] reviewed only imaged copies of the documents he claimed to authenticate in his affidavit. Thus, there is no triable issue relating to [the affiant’s] personal knowledge in this matter.
Hammond at ¶ 37-38. In this case, Kotchey’s affidavit included statements from which it
could be inferred that she compared the original note (and the originals of the other
documents referenced in her affidavit) to the copies so she could attest that the copies
attached to her affidavit were true and exact. See U.S. Bank N.A. v. Bobo, 4th Dist.
Athens No. 13CA45, 2014-Ohio-4975, ¶ 30. Michko produced no evidence to suggest
that Kotchey reviewed only an imaged copy of the note she claims to authenticate in her
affidavit. Therefore, there is no triable issue of fact relating to Kotchey’s authentication
of the note or personal knowledge as set forth in her affidavit.
Documents Evidencing Merger Between BAC Home Loans Servicing, LP and Bank of America
{¶35} Michko also contends that the trial court erred in entering summary
judgment because there was “no Civil Rule 56 evidence before the trial court” proving
that BAC Home Loans Servicing, LP had merged into Bank of America. In moving for
summary judgment, Bank of America submitted evidence that it was the holder of the note and mortgage at the time it filed the complaint. The record reflects that Primary
Capital Advisors endorsed the note to “Bank of America, N.A.” and that “Bank of
America, N.A.” thereafter endorsed the note in blank. The record further reflects that
MERS, as nominee for Primary Capital Advisors and its successors and assigns, assigned
the mortgage to “Bank of America, N.A.” on May 25, 2012. Although the original
plaintiff in the case was “Bank of America, N.A., successor by merger to BAC Home
Loans Servicing, LP,” Bank of America was not required to produce merger
documentation or other Civ.R. 56(C) evidence establishing that it was the successor by
merger to BAC Home Loans Servicing, LP because the merger was not the means by
which Bank of America acquired an interest in the note and mortgage. As detailed
above, Bank of America acquired an interest in the note and mortgage directly, before the
complaint was filed. It acquired an interest in the note by means of Primary Capital
Advisors’ endorsement of the note to Bank of America and its possession of the original
note after the note was endorsed in blank. Bank of America acquired an interest in the
mortgage based on MERS’s assignment of the mortgage, as nominee for Primary Capital
Advisors, to it. Accordingly, Michko’s second assignment of error is overruled.
Motion for Judgment on the Pleadings
{¶36} Michko’s third assignment of error relates to the third count of the
amended complaint. Michko argues that the trial court erred in granting Bank of
America’s motion for judgment on the pleadings as to the third count of the amended
complaint because Bank of America failed to point to any evidence in the record establishing that the omission of Denise Walker’s name from the notary clause
acknowledging the parties’ signatures was the result of a mutual mistake. Once again,
Michko’s argument is meritless.
{¶37} Motions for judgment on the pleadings are governed by Civ.R. 12(C).
Civ.R. 12(C) provides that “[a]fter the pleadings are closed but within such time as not to
delay the trial, any party may move for judgment on the pleadings.”
In ruling on a Civ.R. 12(C) motion, the court is permitted to consider both the complaint
and the answer as well as any material attached as exhibits to those pleadings. Schmitt v.
Educational Serv. Ctr., 8th Dist. Cuyahoga No. 97605, 2012-Ohio-2208, 970 N.E.2d
1187, ¶ 10. “‘Civ.R. 12(C) requires a determination that no material factual issues exist
and that the movant is entitled to judgment as a matter of law.’” Rayess v. Educational
Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d
1267, ¶ 18, quoting State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565,
569-570, 664 N.E.2d 931 (1996). Judgment on the pleadings is appropriate where, after
considering the material allegations of the pleadings and all reasonable inferences to be
drawn therefrom in a light most favorable to the nonmoving party, the court finds that the
moving party is entitled to judgment as a matter of law. Rayess at ¶ 18. We review a
trial court’s granting of a motion for judgment on the pleadings de novo. Id.
{¶38} In the third count of the amended complaint, Bank of America sought a
declaration that a prior warranty deed in the chain of title of the property — a warranty
deed from Mark Walker (grantor) to Richard Gardner (grantee) recorded on November 5, 2004 — was valid despite the fact that the name of Denise Walker (Mark Walker’s wife,
who signed the deed to release her dower rights on the property) was omitted from the
notary acknowledgment clause. Although purported signatures from both Mark Walker
and Denise Walker appear on the deed, only Mark Walker is referenced in the
acknowledgment clause as having personally appeared before and signed the deed in the
presence of the notary. In paragraphs 8 and 9 of the amended complaint, Bank of
America alleged, in relevant part:
8. Plaintiff says that as a result of the mutual mistake of the parties to the Warranty Deed * * * a copy of which is attached hereto * * * the acknowledgment is faulty as it failed to contain the name of the grantor, Denise Walker.
9. Plaintiff further says that the parties to the Warranty Deed * * *
intended to have the grantor acknowledged, so that Plaintiff is
entitled to a declaration by the Court that despite the defective
acknowledgment by the parties thereto, the Warranty Deed * * * is
valid and that Defendant, Katherine L. Michko, is the owner in fee
simple of the real property described therein.
{¶39} In her answer, Michko “admits the allegations contained in paragraph 9.” Because Michko (who was not a party to the warranty deed at issue) admitted in her answer that Bank of America was entitled to a declaration that the warranty deed was valid and all of the other persons who were parties to the warranty deed defaulted, Bank of America was not required to offer any evidence of mutual mistake in order to establish its entitlement to a declaration that the warranty deed was valid. Accordingly, the trial court did not err in entering judgment on the pleadings on the third count of the amended complaint. Michko’s third assignment of error is overruled. {¶40} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
________________________________________________ EILEEN A. GALLAGHER, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and ANITA LASTER MAYS, J., CONCUR