Green Tree Servicing, L.L.C. v. Luce

2016 Ohio 1011

• Court: Ohio Court of Appeals
• Decided: March 14, 2016
• Docket: 2015-A-0022
• Status: Published

Opinion

[Cite as Green Tree Servicing, L.L.C. v. Luce, 2016-Ohio-1011.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

GREEN TREE SERVICING LLC, : OPINION

Plaintiff-Appellee, : CASE NO. 2015-A-0022 - vs - :

RUSSELL L. LUCE, et al., :

Defendant-Appellant. :

Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2013 CV 0922.

Judgment: Reversed and remanded.

David J. Demers and Michelle L. Polly-Murphy, Law Offices of Cooke & Demers, LLC, 3 North High Street, P.O. Box 714, New Albany, OH 43054 (For Plaintiff-Appellee).

Bruce M. Broyles, 5815 Market Street, Suite 2, Youngstown, OH 44512 (For Defendant-Appellant).

DIANE V. GRENDELL, J.

{¶1} Defendant-appellant, Russell L. Luce, appeals the Judgment Decree in

Foreclosure rendered in the Ashtabula County Court of Common Pleas, foreclosing his

interest in the property known as 366 South Ridge Road, Conneaut, Ohio, in favor of

plaintiff-appellee, Green Tree Servicing LLC. The issues before this court are whether

an averment in an affidavit that notice was “sent” is sufficient to satisfy the notice

provisions of a note and mortgage; whether the indorsement of a promissory note executed by a company claiming to do business under the fictitious name of the lender

is sufficient to render the note bearer paper; and whether a trial court may consider for

purposes of summary judgment copies of a note and mortgage attached to an affidavit,

but not otherwise certified or identified as accurate copies of the originals. For the

following reasons, we reverse and remand the Judgment of the court below.

{¶2} On December 24, 2013, Green Tree Servicing filed a Complaint for

Money, Foreclosure and Other Equitable Relief and Mortgage Reformation against

Luce, Luce’s “unknown spouse,” and the Ashtabula County Treasurer.

{¶3} On January 6, 2014, the Ashtabula County Treasurer filed its Answer.

{¶4} On January 31, 2014, Luce filed his Answer to Complaint.

{¶5} On March 3, 2014, Green Tree Servicing filed a Motion for Summary

Judgment. In support of its Motion, the following Affidavit, dated February 7, 2014, was

attached:

{¶6} I, Tonya M. Green, being first duly cautioned and sworn, do hereby state as follows:

1. That I have personal knowledge and information regarding all statements contained herein.

2. That I am the Foreclosure Specialist of Green Tree Servicing LLC, loan servicer for Green Tree Servicing LLC.

3. That on or about December 5, 2001, Russell L. Luce executed and delivered to MERS, Inc., as nominee for America’s Wholesale Lender, further assigned to Green Tree Servicing LLC, a Note in the principal sum of $129,600.00.

4. That I have reviewed the loan file of Russell L. Luce and a. That Green Tree Servicing LLC is the assignee of the mortgage note in this subject action. Said mortgage note is attached hereto as “Exhibit A”.

2 b. That Green Tree Servicing LLC is the holder of the mortgage note in this subject action. Said mortgage and assignments are attached hereto as “Exhibit B”.

5. Pursuant to the terms and conditions of the Fixed Rate Note, Russell L. Luce was to make monthly payments to Green Tree Servicing LLC in the amount of $840.58.

6. The last regular monthly payment made by Russell L. Luce on his/her loan with Green Tree Servicing LLC was March 1, 2013. The account is presently due for the April 1, 2013 payment.

7. Pursuant to the acceleration clause of the note, Green Tree Servicing LLC accelerated the remaining payments, declared the note in default, and sent a notice of default and right to cure on June 21, 2013. [Handwritten:] Said Notice is attached hereto as “Exhibit C”.

8. As of February 6, 2014 the payoff on this loan is $115,597.30. The principal balance on this loan is $107,373.89. The interest balance on this loan is $6,743.08.

9. As of February 6th, 2014 Russell L. Luce is delinquent on this account with Green Tree Servicing LLC in the amount of $12,171.98.

{¶7} On August 11, 2014, Luce filed a Memorandum in Opposition, in which he

argued that Green’s Affidavit was insufficient to demonstrate either that Green Tree

Servicing has satisfied the conditions precedent to accelerating the balance due under

the terms of the note and mortgage or that Green Tree Servicing is the holder of or

otherwise entitled to enforce the note.

{¶8} On March 9, 2015, the trial court entered its Judgment Decree in

Foreclosure, granting Green Tree Servicing’s Motion for Summary Judgment and

entering default judgment against the unknown spouse of Russell L. Luce. The court

foreclosed Luce’s equity of redemption in the subject premises and ordered it sold. The

court decreed that “Plaintiff recover judgment against Defendant Russell L. Luce in the

3 sum of $113,165.57, with interest thereon at * * * 6.75% per annum from April 1, 2013

plus late charges until the date of the Sheriff’s Sale of the Premises,” with taxes owed to

the Ashtabula County Treasurer and the costs of the action constituting a lien on the

subject premises prior to that of Green Tree Servicing’s lien.

{¶9} On March 30, 2015, Luce filed a Notice of Appeal. On appeal, Luce raises

the following assignment of error:

{¶10} “[1.] The trial court erred in granting summary judgment to Appellee when

there were genuine issues of material fact still in dispute.”

{¶11} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” 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 that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence * * * construed most strongly in the

party’s favor.” A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “Under this standard, the reviewing court

conducts an independent review of the evidence before the trial court and renders a

decision de novo, i.e., as a matter of law and without deference to the conclusions of

the lower court.” (Citation omitted.) Green Tree Servicing LLC v. Brandt, 11th Dist.

Lake No. 2014-L-137, 2015-Ohio-4636, ¶ 13.

4 {¶12} Luce’s first argument is that Green Tree Servicing failed to establish that it

complied with conditions precedent to accelerating the debt under the Note and

Mortgage.

{¶13} The Note provides that, in the event of default, “the Note Holder [Green

Tree Servicing] may send me [the borrower] 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 Principal which has not been paid and all the interest I

owe on that amount,” which date “must be at least 30 days after the date on which the

notice is mailed to me or delivered by other means.” The Note further provides that

“any notice that must be given to me [the borrower] under this Note will be given by

delivering it or by mailing it by first class mail * * *.”

{¶14} The Mortgage provides that the “Lender shall give notice to Borrower prior

to acceleration following Borrower’s breach of any covenant or agreement in this

Security Instrument,” and that notice “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.”

{¶15} Luce faults Tonya Green’s affidavit for “merely stat[ing] that the notice was

‘sent,’ without describing the manner in which the notice was sent” and not providing

“evidence that the notice was delivered.” Appellant’s Brief at 5.

{¶16} Under this court’s precedents, Green’s averment that notice was “sent” on

June 21, 2013, together with a copy of the notice sent, demonstrates compliance with

the conditions precedent in the Note and Mortgage. The notice provisions do not

mandate first class mail as the exclusive means of giving notice and there is no

5 evidence of a failure of delivery. Where the “evidence that notice was sent remains

uncontradicted, the notice provisions must be deemed satisfied.” Bank of Am., N.A. v.

Curtin, 24 N.E.3d 1217, 2014-Ohio-5379, ¶ 23 (11th Dist.) (cases cited); N.Y. Life Ins. &

Annuity v. Vengal, 2014-Ohio-4798, 23 N.E.3d 180, ¶ 20 (8th Dist.) (affiant’s “statement

that the notice of intent to foreclose ‘was sent to [Vengal] on December 7, 2010 * * * at

[the property address]’ is sufficient to establish that New York Life sent the notice by first

class mail, despite the fact that the affidavit does not specifically state that the notice

was sent by first class mail or that it was sent by any other means”) (cases cited).

{¶17} Luce’s next argument is that Green Tree Servicing failed to demonstrate

that it “possesses the promissory note, or that [it] is somehow a person entitled to

enforce the promissory note.” Appellant’s brief at 6.

{¶18} The Note attached to Green’s Affidavit identifies the Lender as America’s

Wholesale Lender. The second page of the Note contains an undated, blank

indorsement “without recourse” by “COUNTRYWIDE HOME LOANS, INC. DOING

BUSINESS UNDER THE FICTITIOUS BUSINESS NAME OF AMERICA’S

WHOLESALE LENDER, A NEW YORK CORPORATION.”

{¶19} The Mortgage attached to Green’s Affidavit identifies Mortgage Electronic

Registration Systems, Inc. (MERS) as the mortgagee “acting solely as a nominee for

Lender,” identified in turn as America’s Wholesale Lender. An Assignment of Mortgage,

attached thereto and dated June 17, 2013, states that MERS, “AS NOMINEE FOR

AMERICA’S WHOLESALE LENDER * * * (ASSIGNOR),” assigns the “Mortgage

together with all interest secured thereby” to Green Tree Servicing LLC.

6 {¶20} These documents effectively establish Green Tree Servicing’s standing to

foreclose the Mortgage based on its status as a holder of the Note and assignee of the

Mortgage. We note, however, the confusion created by Green’s Affidavit which

indicates Green Tree Servicing is an “assignee” of the Note and a “holder” of the

Mortgage. Despite the imprecision with which Green describes the transfer of the

instruments, reasonable minds could only conclude that the Note has become bearer

paper as a result of the blank indorsement and that the Mortgage has been assigned to

Green Tree Servicing. That Green Tree Servicing is in possession of the Note is

evidenced by Green’s assertion that her Affidavit is based on her review of Luce’s loan

file.

{¶21} We reject Luce’s contention that the Note did not become bearer paper

because it was not “specially endorsed” by the named payee, America’s Wholesale

Lender. According to the indorsement on the Note, America’s Wholesale Lender is

merely a fictitious name under which Countrywide Home Loans, Inc. does business.

There is no evidence in the record contradicting the claim. A “‘[f]ictitious name’ means a

name used in business or trade that is fictitious and that the user has not registered or

is not entitled to register as a trade name.” R.C. 1329.01(A)(2). Corporations in Ohio

have the right to adopt fictitious names “so long as it is not done with fraudulent purpose

or against public policy.” McCaskey v. Sanford-Brown College, 8th Dist. Cuyahoga No.

97261, 2012-Ohio-1543, ¶ 15. Given the record before this court, Countrywide Home

Loans was competent to indorse the Note executed by Luce in favor of America’s

Wholesale Lender.

7 {¶22} Luce’s final arguments challenge the sufficiency of Green’s Affidavit on the

grounds that it “does not describe her job duties, or provide any information about the

manner in which Ms. Green obtained her personal knowledge” of the matters averred to

and that she “does not aver that the attached [documents] are true and correct copies of

the originals.” Appellant’s Brief at 8.

{¶23} Regarding the evidence which may be used to support a motion for

summary judgment, Ohio Civil Rule 56(E) provides: “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.”

{¶24} The Ohio Supreme Court has stated that “[t]he specific allegation in [an]

affidavit that it was made upon personal knowledge is sufficient to meet this requirement

of Civ.R. 56(E) and, if the adverse party contends otherwise, an opposing affidavit

setting forth the appropriate facts must be submitted.” State ex rel. Corrigan v.

Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981); Nationstar Mtge. LLC v.

Hayhurst, 11th Dist. Trumbull No. 2014-T-0102, 2015-Ohio-2900, ¶ 26 (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”) (citation omitted).

{¶25} In the absence of evidence to the contrary, Green’s assertion of personal

knowledge together with the averments that she is a foreclosure specialist with Green

8 Tree Servicing and has reviewed Luce’s loan file satisfies the personal knowledge

requirement of Civil Rule 56(E).

{¶26} “The requirement of Civ.R. 56(E) that sworn or certified copies of all

papers referred to in the affidavit be attached is satisfied by attaching the papers to the

affidavit, coupled with a statement therein that such copies are true copies and

reproductions.” Corrigan at 467; Bank of Am., NA v. Jones, 11th Dist. Geauga No.

2014-G-3197, 2014-Ohio-4985, ¶ 33; Zeedyk v. Agricultural Soc. of Defiance Cty., 3rd

Dist. Defiance No. 4-04-08, 2004-Ohio-6187, ¶ 19 (“[i]n order to authenticate the

documents, the affiant needs to testify that they are true copies and reproductions of the

original”). “[D]ocuments which are not sworn, certified, or authenticated by way of

affidavit have no evidentiary value and may not [be] considered by the trial court.”

(Citation omitted.) Goss v. Kmart Corp., 11th Dist. Trumbull No. 2006-T-0117, 2007-

Ohio-3200, ¶ 41; Rilley v. Twp. of Brimfield, 11th Dist. Portage No. 2009-P-0036, 2010-

Ohio-5181, ¶ 66 (“[i]t bears repeating the well-settled rule that ‘documents * * * must be

sworn, certified or authenticated by affidavit to be considered by the trial court in

determining whether a genuine issue of material fact exists for trial’”) (citation omitted).

{¶27} The Note and Mortgage attached to Green’s Affidavit are neither sworn,

nor certified, nor authenticated. The Affidavit claims that “[s]aid mortgage note” and

“[s]aid mortgage and assignments” are attached, but, in fact, only copies are attached.

The copies are not notarized. There is no statement that the attached copies are true

copies or reproductions of the original documents. Under this court’s precedents, as

well as those of virtually every other appellate district in Ohio, the trial court could not

consider the Note or Mortgage in ruling on Green Tree Servicing’s Motion for Summary

9 Judgment. Smith v. Gold-Kaplan, 8th Dist. Cuyahoga No. 100015, 2014-Ohio-1424, ¶

16 (“[a]lthough the rule appears harsh, Ohio courts consistently apply this rule and

recognize that ‘documents that have not been sworn, certified, or authenticated by way

of affidavit “have no evidentiary value”’”) (citations omitted).1

{¶28} The sole assignment of error is with merit.

{¶29} For the foregoing reasons, the Judgment Decree in Foreclosure rendered

in favor of Green Tree Servicing by the Ashtabula County Court of Common Pleas is

reversed and this case is remanded for further proceedings consistent with this opinion.

Costs to be taxed against the appellee.

CYNTHIA WESTCOTT RICE, P.J.,

THOMAS R. WRIGHT, J.,

concur.

1. We note that “[a] trial court may, in its discretion, consider improperly introduced evidentiary materials during the summary judgment exercise where the opposing party fails to object.” (Citation omitted.) Discover Bank v. Damico, 11th Dist. Lake No. 2011-L-108, 2012-Ohio-3022, ¶ 15. However, Luce argued, in a Memorandum in Opposition to Motion for Summary Judgment, that the trial court “should not consider the documents attached to the affidavit” as they did not comply with Civil Rule 56(E).