[Cite as Trinity Fin. Servs. v. Unknown Heirs of King, 2024-Ohio-2377.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
TRINITY FINANCIAL SERVICES, LLC : : Appellees : C.A. No. 30066 : v. : Trial Court Case No. 2023 CV 01389 : UNKNOWN HEIRS, FIDUCIARIES, : (Civil Appeal from Common Pleas BENEFICIARIES, DEVISEES AND : Court) DONEES OF BRENDA KING, et al. : : Appellant
...........
OPINION
Rendered on June 21, 2024
WORRELL A. REID, Attorney for Appellant
ELLEN L. FORNASH, Attorney for Appellee
.............
EPLEY, P.J.
{¶ 1} Upscale Homes, LLC, appeals from a judgment and decree of foreclosure
issued by the Montgomery County Court of Common Pleas in favor of Trinity Financial -2-
Services, LLC. For the following reasons, the trial court’s judgment will be reversed, and
the matter will be remanded for further proceedings.
I. Background and Procedural History
{¶ 2} Tony and Brenda King, now both deceased, formerly owned the property
located at 644 Smallwood Road in Dayton. In September 2003, while they owned the
property, Brenda borrowed $25,500 from Aegis Lending Corporation, with an interest rate
of 12.05 percent. Brenda was required to make monthly payments of $306.86, beginning
on December 1, 2003, and she agreed to pay any remaining amounts owed, in full, on
November 1, 2018. The loan was secured by a mortgage executed by both Brenda and
Tony and recorded with the Montgomery County Recorder on October 6, 2003.
{¶ 3} According to Trinity, in September 2017, the Kings sold the Smallwood
property to Ryan Hillenberg. Appellant’s Brief, citing Deed No. 2017-00057716. Four
days later, Hillenberg sold the property to Antwon Lane. See Counterclaim, ¶ 1; Deed
No. 2017-00058482. Upscale obtained the property from Lane, the sole member of
Upscale, in 2018. See Counterclaim, ¶ 1; Deed No. 2018-00028780. According to
Upscale, Tax Ease Ohio, LLC, had purchased tax certificates for delinquent real estate
taxes on the property. Upscale paid $12,275.37 to Tax Ease to redeem the tax
certificates and remove the liens.
{¶ 4} On May 10, 2022, Trinity sent a notice of default to Tony King, informing him
that the loan had been in default since April 2012, that the past-due amount, including
late charges and other fees, totaled to $38,663.14, and that failure to pay the amount in
full by June 9, 2022, could result in foreclosure on the mortgaged property. -3-
{¶ 5} On March 20, 2023, Trinity filed a complaint for foreclosure, naming Tony
King, Upscale, the Ohio Department of Taxation, and other unnamed individuals. The
complaint alleged that the loan was in default in the amount of $16,736.72 with interest
from March 7, 2012. It indicated that Brenda was by then deceased and that Tony had
received a discharge in a Chapter 7 bankruptcy and was no longer personally liable for
the debt. Trinity sought judgment on the note, foreclosure of the mortgage, and the sale
of the property. Attached to the complaint were copies of the original note and mortgage,
along with copies of the allonges attached to the note and assignments of the mortgage.
Trinity also filed a preliminary judicial report showing liens on the property.
{¶ 6} Upscale answered the complaint, denying the allegations and raising 18
defenses. It also asserted counterclaims for unjust enrichment and subrogation.
Upscale claimed that, due to its payment of the tax certificates, it should be subrogated
to the position of the Montgomery County Treasurer and be reimbursed for its tax
certificate payments ($12,275.37) prior to payment of Trinity’s mortgage lien.
{¶ 7} The Ohio Department of Taxation also filed an answer, disclaiming any
interest in the property. Trinity subsequently dismissed Tony King and his unknown
spouse, stating that Tony was also deceased and was not the current owner of the
property. The other unnamed defendants were served by publication and did not
respond to the complaint; the trial court later granted a default judgment regarding these
defendants.
{¶ 8} On September 18, 2023, Upscale filed a notice that the parties had reached
an impasse regarding discovery. It complained that Trinity had refused to provide the -4-
original note and allonges for inspection, citing the Fair Debt Collection Practices Act
(FDCPA). Upscale argued that these documents were necessary to establish Trinity’s
standing. Trinity responded that the FDCPA prohibited providing private loan
information to third parties and, because Upscale was not a party to the original loan,
Trinity’s counsel was prohibited from sharing the documents with Upscale’s counsel.
Trinity further argued that Upscale, as a third party, lacked standing to challenge the
authenticity of the note and mortgage and, therefore, it appropriately provided duplicates
of the documents to Upscale.
{¶ 9} After a scheduling conference, Upscale filed a motion to compel Trinity to
produce the original note for inspection and to complete discovery, including the
production of an accurate payment history. Trinity again responded that it was precluded
by the FDCPA from producing Brenda King’s private and personal loan information,
among other arguments.
{¶ 10} On October 27, 2023, while the discovery issue was also being briefed,
Trinity moved for summary judgment on its foreclosure claim and Upscale’s
counterclaims. Trinity supported its motion with an affidavit from Don A. Madden III, its
president, who indicated that Trinity possessed the note, that the note was in default, that
it had accelerated the obligation and sent a notice of default, and that it was entitled to a
principal amount of $16,736.72 with interest at the rate of 12.05 percent from March 1,
2012, plus additional fees and advances. Madden authenticated copies of the note with
indorsements (Exhibit A), the mortgage with assignments (Exhibit B), a partial payment
history (Exhibit C), and the notice of default (Exhibit D). -5-
{¶ 11} Upscale initially responded to the summary judgment motion with a Civ.R.
56(F) motion, asking the trial court to stay summary judgment proceedings until Trinity
had fully complied with discovery, particularly by allowing counsel to inspect the original
note, mortgage, and assignments. Ten days later, Upscale filed a memorandum
opposing summary judgment. It argued that Trinity had failed to produce evidentiary-
quality materials showing that it was the holder of the note and mortgage, that it was a
party entitled to enforce the note, that all conditions precedent had been met, and the
amount of principal and interest due. Upscale provided an affidavit from Antwon Lane,
the sole member of Upscale.
{¶ 12} Seeing that Upscale had timely responded to the summary judgment
motion, the trial court overruled the Civ.R. 56(F) motion as moot. The following day,
Upscale filed a notice that Trinity had continued to refuse to produce the original note for
inspection, stating that it “strongly believe[d]” that Trinity’s refusal made summary
judgment inappropriate.
{¶ 13} On February 29, 2024, the trial court granted Trinity’s motion for summary
judgment. It concluded that Trinity had met its initial evidentiary burden through
Madden’s affidavit and accompanying exhibits. The court further found that Upscale had
not met its reciprocal burden to establish the existence of a genuine issue of material fact.
It noted that “Upscale’s unsupported assertion that the loan must have been paid in full
merely because it matured in 2018 is not sufficient to withstand summary judgment.”
Finally, the court concluded that, because Upscale was not a party to any assignments
or indorsements, it lacked standing to challenge their validity. -6-
{¶ 14} The following day, the trial court granted a judgment and decree of
foreclosure to Trinity. In setting forth the priority for distribution of the sale proceeds, the
court did not include the alleged tax lien claimed by Upscale.
{¶ 15} Upscale appeals from the trial court’s judgment, raising three assignments
of error. The trial court has stayed its judgment pending appeal.
II. Failure to Produce Original Note
{¶ 16} In its first assignment of error, Upscale claims that the trial court erred in
granting summary judgment to Trinity because Trinity refused to produce the original note
during discovery. Upscale claims that Trinity’s ability to produce the original note was
relevant to Trinity’s standing to pursue foreclosure. We note that Upscale filed a motion
to compel inspection of the original note and later asked that summary judgment
proceedings be held in abeyance, pursuant to Civ.R. 56(F), until Trinity fully complied with
Upscale’s discovery requests. We construe Upscale’s assignment of error to argue that
the trial court erred in implicitly denying its motion to compel and in failing to grant its
Civ.R. 56(F) motion.
{¶ 17} Civ.R. 56(F) “affords a party a mechanism whereby it can seek deferral of
action on a motion for summary judgment so that it may obtain affidavits opposing the
motion or conduct discovery relevant to it.” Gates Mills Inv. Co. v. Pepper Pike, 59 Ohio
App.2d 155, 168-69, 392 N.E.2d 1316 (8th Dist.1978), citing Civ.R. 56(F). Under the
rule, the party opposing summary judgment must submit an affidavit explaining why it
cannot “present by affidavit facts essential to justify the party’s opposition” to the summary -7-
judgment motion. Chen v. Univ. of Dayton, 2023-Ohio-4002, 228 N.E.3d 19, ¶ 44 (2d
Dist.), citing Civ.R. 56(F). If that party submits an affidavit with sufficient reasons, the
trial court may deny the summary judgment motion or may “order a continuance to permit
affidavits to be obtained or discovery to be had or may make such other order as is just.”
Id.
{¶ 18} “Pursuant to Civ.R. 7(A), the grounds for a Civ.R. 56(F) motion for a
continuance must be stated with particularity.” Doriott v. MVHE, Inc., 2d Dist.
Montgomery No. 20040, 2004-Ohio-867, ¶ 40. Mere allegations requesting a
continuance for the purpose of discovery are not sufficient reasons. Id.; Gates Mills Inv.
Co. at 169. Rather, “[t]here must be a factual basis stated and reasons given why it
cannot present facts essential to its opposition to the motion.” Doriott at ¶ 40. While
the party opposing summary judgment is not required to specify what facts it hopes to
discover, the court must be convinced that there is a likelihood of discovering some such
facts. Id. at ¶ 41. “[A] claim that the party has not completed discovery is more likely to
be rejected by the court where the party has not shown some diligence in attempting
discovery.” Id.
{¶ 19} We review the trial court’s determination of a Civ.R. 56(F) motion for an
abuse of discretion. Chen at ¶ 46, citing Johnson v. Clark Cty. Aud., 2020-Ohio-3201,
155 N.E.3d 199, ¶ 21 (2d Dist.). An abuse of discretion “implies that the court’s attitude
is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983).
{¶ 20} Upscale’s Civ.R. 56(F) motion and the accompanying affidavit by its -8-
attorney asserted that Upscale could not respond to Trinity’s assertion that it was the
holder of the note without viewing the original document. In his affidavit, counsel noted
that Upscale’s answer had alleged that “Plaintiff is not the holder of the note, and does
not have the rights of a holder.” He asserted that Upscale needed to inspect the note,
mortgage, and assignments to confirm that Trinity was, in fact, the holder of the note with
standing to prosecute the case. Counsel’s affidavit further expressed that counsel
believed that Madden lacked personal knowledge of the facts contained in his affidavit
and thus questioned its trustworthiness.
{¶ 21} The trial court overruled Upscale’s Civ.R. 56(F) motion as moot because
Upscale had filed a memorandum in opposition to the summary judgment. In doing so,
it also implicitly overruled the motion to compel, as the only way Trinity would further
respond to Upcale’s discovery request was by court order.
{¶ 22} We disagree that the discovery request was moot as a result of the filing of
Upscale’s memorandum in opposition to summary judgment. Upscale’s opposition
memorandum was replete with assertions that granting summary judgment to Trinity
would be inappropriate due to Trinity’s failure to comply with Upscale’s discovery
requests. Upscale repeatedly challenged Trinity’s status as the holder of the note and
mortgage and the party entitled to enforce the note, and it indicated that Trinity’s refusal
to produce the note and mortgage for inspection hindered Upscale’s ability to support its
claim.
{¶ 23} On appeal, Trinity argues that the trial court appropriately granted summary
judgment without requiring inspection of the original loan documents. Trinity states that -9-
its counsel has custody of the original note and mortgage but asserts that the FDCPA
prohibits it from producing the original note and mortgage for Upscale. Specifically, it
indicates that “Plaintiff’s counsel” is a debt collector as it “uses any instrumentality of
interstate commerce or the mails in any business the principal purpose of which is the
collection of any debts, or * * * regularly collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due another.” 15 U.S.C. 1692a(6). It
argues that debt collectors are prohibited from communicating about the debt with any
person other than the consumer, the consumer’s attorney, a consumer reporting agency,
the creditor, the creditor’s attorney, or the debt collector’s attorney, unless the consumer
has given prior consent or a court has expressly given permission to do so. 15 U.S.C.
1692c(b).
{¶ 24} Even accepting that Trinity’s counsel either engages in debt collection as
its “principal purpose” or regularly engages in debt collection, the proper question is
whether Trinity is a debt collector, not its counsel. It is Trinity, as the plaintiff, who has
the obligation to comply with applicable discovery rules.
{¶ 25} The FDCPA defines a creditor as “any person who offers or extends credit
creating a debt or to whom a debt is owed, but such term does not include any person to
the extent that he receives an assignment or transfer of a debt in default solely for the
purpose of facilitating collection of such debt for another.” (Emphasis added.) 15
U.S.C. 1692a(4).
{¶ 26} In Henson v. Santander Consumer USA Inc., 582 U.S. 79, 82, 137 S.Ct.
1718, 198 L.Ed.2d 177 (2017), the United States Supreme Court unanimously held that -10-
a debt purchaser may collect debts for its own account without becoming a debt collector.
It reasoned:
[B]y its plain terms this language [Section 1692a(6)] seems to focus our
attention on third party collection agents working for a debt owner – not on
a debt owner seeking to collect debts for itself. Neither does this language
appear to suggest that we should care how a debt owner came to be a debt
owner – whether the owner originated the debt or came by it only through a
later purchase. All that matters is whether the [person collecting the debt]
regularly seeks to collect debts for its own account or does so for “another.”
Id. at 83. The Court further rejected the assertion that a debt collector necessarily
includes anyone who regularly collects debts acquired after default. Id. at 87. It
emphasized that, “[a]fter all and again, under the definition at issue before us you have
to attempt to collect debts owed another before you can ever qualify as a debt collector.”
(Emphasis sic.) Id.
{¶ 27} According to the affidavit of Don A. Madden III, Trinity’s president, Trinity
acquired the note and mortgage from Ocwen Loan Servicing. The record does not
reveal when the notes were transferred to Trinity, although the assignments of mortgage
from Ocwen Loan Servicing to Trinity were dated January 27, 2014, after the loan
allegedly was in default. Nevertheless, Trinity does not claim that it acquired the note
and mortgage solely for the purpose of facilitating the collection of someone else’s debt.
To the contrary, the notice of default sent to Tony King by Robertson, Anschutz, Schneid,
Crane & Partners, PLLC, in May 2022 informed Tony that the letter was from a debt -11-
collector (the law firm) attempting to collect the debt for the “current creditor,” Trinity.
Trinity does not assert, nor does the record suggest, that Trinity is a debt collector, rather
than the creditor, in this case.
{¶ 28} The FDCPA “is directed at independent debt collectors and not creditors
attempting to collect on their own debts.” JPMorgan Chase Bank, N.A. v. Taylor, 2d Dist.
Montgomery No. 25568, 2013-Ohio-2760, ¶ 14, quoting Bank of New York Trustee v.
Damnsel, 10th Dist. Franklin No. 00AP-46, 2006-Ohio-4071, ¶ 13. Trinity does not cite
any portion of the FDCPA that limits a creditor’s ability to allow a third-party foreclosure
defendant to view the original note and mortgage. Nor do we find any support for Trinity’s
implicit suggestion that Trinity’s choice of counsel can serve to alter its discovery
obligations. Because Trinity relied exclusively on the FDCPA, we decline to address
whether other statutes or regulations prohibited Trinity from allowing Upscale’s counsel
to inspect the original note and mortgage.
{¶ 29} Ohio Civ.R. 26(C) permits the trial court to enter a protective order, as
justice requires, “to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Trinity could have asked the trial court to limit
the inspection of the original note and mortgage to defense counsel only, or to permit the
Kings’ personal information to be obscured while the documents were being viewed, or
some other remedy to address its concerns about the disclosure of the Kings’ private
information. However, given that duplicates of the note and mortgage were attached to
the complaint and to Madden’s affidavit, each with minimal redactions, we question
Trinity’s suggestion that it could not accommodate Upscale’s request to inspect those -12-
documents without judicial intervention.
{¶ 30} Trinity next argues that it did not need to allow defense counsel to view the
original note and mortgage, because duplicates are sufficient evidence under Evid.R.
1003. However, as expressly stated in Civ.R. 26(B)(1), the scope of discovery is not
limited to evidence that is admissible at trial. That rule provides:
Unless otherwise limited by court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery need
not be admissible in evidence to be discoverable.
Trinity could not decline a proper discovery request simply because it could or would
present a duplicate, rather than the original, to support its claims.
{¶ 31} Finally, Trinity emphasizes that production of the original note and mortgage
was unnecessary as Upscale did not and could not challenge the authenticity of the
transfers. A mortgagor does not have standing to challenge the validity of the
assignments of the mortgage, because the mortgagor was not a party to the assignments.
Nationstar Mtge. LLC v. Anderson, 2023-Ohio-3186, 224 N.E.3d 559, ¶ 17 (2d Dist.),
citing Bank of New York Mellon Trust Co. v. Unger, 8th Dist. Cuyahoga No. 97315, 2012- -13-
Ohio-1950, ¶ 35; Bank of New York Mellon v. Clancy, 2d Dist. Montgomery No. 25823,
2014-Ohio-1975, ¶ 33. Here, Upscale was not a party to the note, the mortgage, or the
assignments of mortgage. Accordingly, to the extent that Upscale sought to view the
original note, mortgage, and assignments to establish defects in the allonges and
assignments of mortgage, Upscale’s request would not lead to relevant evidence.
{¶ 32} However, Trinity had the obligation to establish its standing to file suit, and
Upscale could challenge whether Trinity possessed the note and mortgage when the
foreclosure action was filed. Trinity argues that it could pursue foreclosure even if the
note and mortgage were lost, but it does not rely on that theory of standing. Rather, it
has repeatedly asserted that its counsel possesses the original note and mortgage.
Under the circumstances before us, the trial court abused its discretion in failing to compel
Trinity to produce the original note and mortgage for inspection and in granting summary
judgment to Trinity without first doing so. See Bank of New York Mellon Tr. Co. Natl. v.
Mihalca, 9th Dist. Summit No. 25747, 2012-Ohio-567, ¶ 19 (“[W]here, as here, a plaintiff
attempts to enforce a note as the holder of the note, and a defendant makes a timely
demand for inspection of the original note, if the plaintiff fails to sufficiently establish its
possession of the note, summary judgment may not be had in favor of the plaintiff.”).
{¶ 33} Upscale’s first assignment of error is sustained.
III. Trinity’s Entitlement to Summary Judgment
{¶ 34} Upscale’s second assignment of error claims that the trial court’s grant of
summary judgment was inappropriate given Trinity’s failure “to produce ‘evidentiary-
quality materials’ showing that a judgment for foreclosure was warranted.” -14-
A. Summary Judgment Standard
{¶ 35} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no
genuine issue as to any material fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) reasonable minds, after construing the evidence most strongly in
favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor
Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving
party carries the initial burden of affirmatively demonstrating that no genuine issue of
material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526
N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials
of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary
judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). The
substantive law of the claim or claims being litigated determines whether a fact is
“material.” Perrin v. Cincinnati Ins. Co., 2020-Ohio-1405, 153 N.E.3d 832, ¶ 29 (2d
Dist.).
{¶ 36} Once the moving party satisfies its burden, the nonmoving party may not
rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.
56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits
or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is
a genuine issue of material fact for trial. Dresher at 293. Throughout, the evidence
must be construed in favor of the nonmoving party. Id.
{¶ 37} We review the trial court’s ruling on a motion for summary judgment de
novo. Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18, 2013-Ohio-2767, ¶ 42. -15-
De novo review means that this court uses the same standard that the trial court should
have used, and we examine all the Civ.R. 56 evidence, without deference to the trial court,
to determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond,
2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.
{¶ 38} To prevail on a motion for summary judgment in a foreclosure action, the
plaintiff must prove: (1) it is the holder of the note and the mortgage, or is a party entitled
to enforce them; (2) if the plaintiff is not the original mortgagee, the chain of assignments
and transfers; (3) the mortgagor is in default; (4) all conditions precedent have been met;
and (5) the amount of principal and interest due. Carrington Mtge. Servs., LLC v.
McClain, 2023-Ohio-2211, 221 N.E.3d 132, ¶ 18 (2d Dist.); U.S. Bank Natl. Assn. v.
Clarke, 2d Dist. Greene No. 2023-CA-29, 2024-Ohio-278, ¶ 15. Upscale challenges
Trinity’s evidence on each of these elements.
B. Affidavit Based on Personal Knowledge
{¶ 39} Upscale first asserts that Madden’s affidavit was not based on personal
knowledge.
{¶ 40} To authenticate a business record under Evid.R. 803(6), an affiant must
demonstrate that: (1) the record was prepared by an employee of the business who had
a duty to report the information; (2) the affiant had personal knowledge of the event or
transaction reported; (3) the record was prepared at or near the time of the event or
transaction; and (4) the business created such records as a regular practice. E.g., U.S.
Bank Trust Natl. Assn. v. Phann, 2023-Ohio-2214, 220 N.E.3d 1001, ¶ 31 (2d Dist.); U.S.
Home Ownership, LLC v. Young, 2018-Ohio-1059, 109 N.E.3d 681, ¶ 11 (2d Dist.), citing -16-
State v. Richardson, 2016-Ohio-8081, 75 N.E.3d 831, ¶ 39 (2d Dist.).
{¶ 41} If “particular averments contained in an affidavit suggest that it is unlikely
that the affiant has personal knowledge of [the corresponding] facts, then * * * something
more than a conclusory averment that the affiant [actually] has [personal] knowledge of
the facts [is] required.” Young at ¶ 12, quoting Merchants Natl. Bank v. Leslie, 2d Dist.
Clark No. 3072, 1994 WL 12433, *2 (Jan. 21, 1994).
{¶ 42} In his affidavit, Madden indicated that he was the president of Trinity and,
“in this position, I have reviewed certain business files, documents and other business
records of Plaintiff’s account for Brenda King (‘the Borrower(s)’).” He averred that he
was authorized to execute the affidavit and was competent to testify to his statements.
He further stated, in part:
3. In the regular performance of my aforementioned job duties, I am
familiar with business records maintained by the Plaintiff for the purpose of
servicing mortgage loans and have access to the Plaintiff’s business
records, including the business records for and relating to the Borrower(s)’s
loan. I make this affidavit based upon my review of those records relating
to the Borrower(s)’ loan and from my own personal knowledge of how the
business records are kept and maintained.
4. Based on my knowledge [of] the Plaintiff’s business practices, the
entries in these records (which include data compilations, electronic image
documents, and others) are made at the time of the events and conditions
they describe, either by people with firsthand knowledge of those events -17-
and conditions or from information provided by people with such firsthand
knowledge. It is the Plaintiff’s business practice to electronically store
duplicates of the originals of all notes or other debt instruments,
endorsements, allonges, mortgages, and assignments thereof and is the
regular practice to keep such records in the ordinary course of a regularly
conducted business activity.
Madden then provided information about Trinity’s possession of the note, the status of
the loan, and Trinity’s actions regarding the default. He also authenticated copies of the
note with indorsements, the mortgage and assignments of mortgage, a partial payment
history, and the notice of default.
{¶ 43} Madden’s affidavit established that he had personal knowledge of and had
reviewed Trinity’s business records related to Brenda King’s loan. His averments were
sufficient to demonstrate personal knowledge of his statements.
C. Holder of the Note and Mortgage and Chain of Assignments
{¶ 44} Upscale next argues that Madden’s affidavit and the accompanying exhibits
were insufficient to demonstrate Trinity’s entitlement to enforce the note and mortgage.
{¶ 45} A foreclosure proceeding enforces a debt obligation, which is established
by the note. U.S. Bank Natl. Assn. for Registered Holders of GE Commercial Mtge.
Corp., Commercial Mtge. Pass-Through Certificates, Series 2006-C1 v. Courthouse
Crossing Acquisitions, LLC, 2017-Ohio-9231, 101 N.E.3d 1243, ¶ 12 (2d Dist.). The
party entitled to enforce the note may pursue foreclosure regardless of whether it can
obtain a personal judgment against the obligors. See Deutsche Bank Natl. Tr. Co. v. -18-
Holden, 147 Ohio St.3d 85, 2016-Ohio-4603, 60 N.E.3d 1243.
{¶ 46} “In foreclosure actions, the real party in interest is the current holder of the
note and mortgage.” (Citation omitted.) HSBC Bank USA v. Thompson, 2d Dist.
Montgomery No. 23761, 2010-Ohio-4158, ¶ 45. The Ohio Supreme Court has made
clear that a “creditor seeking to foreclose on the mortgage must prove that it was the
person or entity entitled to enforce the note secured by the mortgage.” Holden at ¶ 26.
{¶ 47} “R.C. 1303.31(A) identifies three classes of persons who are ‘entitled to
enforce’ an instrument, such as a note: (1) the holder of the instrument, (2) a nonholder
in possession of the instrument who has the rights of a holder, and (3) a person not in
possession of the instrument who is entitled to enforce the instrument pursuant to R.C.
1303.38 or R.C. 1303.58(D).” Wells Fargo Bank, N.A. v. TIC Acropolis, L.L.C., 2d Dist.
Greene No. 2015-CA-32, 2016-Ohio-142, ¶ 29. The term “holder” includes a “person in
possession of a negotiable instrument that is payable either to bearer or to an identified
person that is the person in possession.” R.C. 1301.201(B)(21)(a).
{¶ 48} “Although the lender is required to establish standing in order to meet its
burden of proof in a foreclosure action, the borrower’s ability to challenge standing by
attacking the assignment is limited.” Wells Fargo Bank, N.A. v. Scott, 2d Dist.
Montgomery No. 26552, 2015-Ohio-3269, ¶ 17. As stated above, a mortgagor lacks
standing to challenge the validity of the assignments of the mortgage, because the
mortgagor was not a party to the assignments. E.g., Anderson, 2023-Ohio-3186, 224
N.E.3d 559, at ¶ 17; Clancy, 2d Dist. Montgomery No. 25823, 2014-Ohio-1975, ¶ 33.
We have reasoned that the assignments do not alter the borrower’s obligations under the -19-
note or mortgage. Id.
{¶ 49} In this case, Madden provided “duplicate, true and accurate” copies of the
note and mortgage “as they exist in the Plaintiff’s records.” The note was stamped with
several indorsements, which reflected transfers from Mortgage Electronic Registration
Systems, Inc. (MERS), as nominee for Aegis Lending, to Aegis Mortgage Corporation;
from Aegis Mortgage Corporation to Residential Funding Corporation; and from
Residential Funding Corporation to JP Morgan Chase Bank, as Trustee. An allonge
attached to the note transferred it from JP Morgan Chase Bank, as Trustee, to Ocwen
Loan Serving. A second allonge transferred the note from Ocwen Loan Serving to Trinity
Financial Services. On their face, the note and allonges contain no gaps in the chain of
custody of the note and demonstrate that Trinity is the current holder of the note.
{¶ 50} The mortgage also went through a series of assignments. In 2012, the
mortgage was assigned by MERS, as nominee for Aegis Lending, to The Bank of New
York Mellon Trust Company (successor to JP Morgan Chase Bank). On January 27,
2014, the bank assigned the mortgage to Ocwen Loan Servicing, which immediately
assigned it to Trinity. The assignment from the Bank of New York to Ocwen was
recorded on May 7, 2021, and the assignment to Trinity was recorded three days later.
Collectively, the note, mortgage, and assignments of mortgage indicate that Trinity was
the holder of the note and mortgage when the complaint was filed.
{¶ 51} In opposing summary judgment and on appeal, Upscale asserts that there
were defects in the allonges, including alleged self-dealing by Ocwen Loan Servicing
when Ocwen, acting as attorney in fact for Bank of New York Mellon, transferred the note -20-
from the bank to itself. However, Upscale does not have standing to challenge this
transaction or any other transfer of the note and mortgage.
{¶ 52} Putting aside for the moment Upscale’s claim that it needed to inspect the
original note to challenge Trinity’s standing, Upscale presented no evidence that raised
questions about whether Exhibits A and B to Madden’s affidavit were true and accurate
copies of the note, mortgage, and assignments of mortgage. Accordingly, the duplicate
copies were proper evidence of the note, mortgage, and assignments of mortgage for
purposes of resolving the summary judgment motion. See Evid.R. 1003.
{¶ 53} Madden stated in his affidavit that, “[a]t the time of the filing of the complaint
in the above-referenced action, the Plaintiff, by and through its records custodian, had
and has been in possession of a certain promissory note (‘the Note’) executed by the
Borrower(s) in the amount of $25,500.00.” Madden Aff., ¶ 5. Madden further indicated
that Trinity “has not transferred possession of the Note.” Madden Aff., ¶ 6. Trinity’s
answers to Upscale’s interrogatories, which Lane attached to his affidavit, also stated that
Trinity was in possession of the original note, mortgage, assignments, and allonges.
Lane Aff., Ex. A, Interrogatory No. 8.
{¶ 54} Madden averred in his affidavit that it is Trinity’s business practice “to
electronically store duplicates of the originals of all notes or other debt instruments,
endorsements, allonges, mortgages, and assignments thereof and is the regular practice
to keep such records in the ordinary course of a regularly conducted business activity.”
Madden Aff., ¶ 4. While this paragraph, read in isolation, may suggest that Trinity only
possesses duplicates of the loan documents, Madden’s affidavit as a whole and Trinity’s -21-
interrogatory response are evidence that Trinity possessed the original documents and
provided accurate copies. With the evidence before it, the trial court properly found no
genuine issue of material fact that Trinity was the holder of the note and mortgage.
{¶ 55} Nevertheless, as we concluded above, Upscale should have been afforded
an opportunity to view the original note to verify that Trinity, in fact, had possession of the
document. It follows that Upscale also should have been given an opportunity to present
additional evidence relevant to Trinity’s standing to file its foreclosure action.
Accordingly, the trial court’s ruling on whether Trinity was the holder of the original note
was premature.
D. Conditions Precedent
{¶ 56} Upscale next argues that Trinity failed to present evidence that it complied
with all conditions precedent. Upscale emphasizes that Brenda King, alone, was the
borrower on the note. It therefore contends that, because Brenda was deceased, Trinity
was required to send a notice of default to her estate. Because Trinity failed to serve a
notice of default on the proper party, Upscale argues, Trinity failed to comply with all
conditions precedent.
{¶ 57} The plaintiff in a foreclosure action must prove that all conditions precedent
have been met to meet its burden of proof for summary judgment. JPMorgan Chase
Bank, N.A. v. Chenoweth, 2d Dist. Montgomery No. 25923, 2014-Ohio-3507, ¶ 20;
Huntington Natl. Bank v. Payson, 2d Dist. Montgomery No. 26396, 2015-Ohio-1976, ¶ 18.
We have held that “[w]here prior notice of default and/or acceleration is required by a
provision in a note or mortgage instrument, the provision of notice is a condition -22-
precedent.” Scott, 2d Dist. Montgomery No. 26552, 2015-Ohio-3269, at ¶ 19, quoting
First Fin. Bank v. Doellman, 12th Dist. Butler No. CA2006-02-09, 2007-Ohio-222, ¶ 20;
Wells Fargo Bank, N.A. v. Mears, 2d Dist. Montgomery No. 27995, 2019-Ohio-242, ¶ 34.
Contrast Wells Fargo Bank, N.A. v. Goebel, 2014-Ohio-472, 6 N.E.3d 1220 (2d Dist.)
(noncompliance with the face-to-face meeting requirement in 24 C.F.R. 203.604 was an
affirmative defense, not a condition precedent, to foreclosure).
{¶ 58} In this case, both the note and mortgage required notice of default.
Paragraph 4 of the note (entitled Borrower’s Failure to Pay as Required) provided, in part:
“If I do not pay the full amount of each monthly payment on time, the Note Holder may
send me a written notice telling me that if I do not pay the overdue amount by a certain
date I will be in default.” Note, ¶ 4(B). Paragraph 4(C) (Default) further stated, in part:
“If I do not pay the overdue amount by the date stated in the notice described in (B) above,
I will be in default. If I am in default, the Note Holder may require me to pay immediately
the full amount of principal which has not been paid and all the interest that I owe on that
amount.” The mortgage required the lender to provide the borrower, prior to
acceleration, a notice specifying (1) the breach, (2) the action required to cure the breach,
(3) the date by which the breach must be cured, and (4) that failure to cure may result in
acceleration, foreclosure, and the sale of the property. Mortgage, ¶ 17 (Acceleration;
Remedies).
{¶ 59} Here, Trinity did not meet its initial summary judgment burden of
demonstrating compliance with its obligation to send a notice of default to the borrower
prior to foreclosure. The borrower in this case was Brenda King. See Madden Aff., Ex. -23-
A (Note). Madden stated in his affidavit that “Plaintiff has satisfied all conditions
precedent pursuant to the Note and Mortgage” – a statement that, alone, may have been
sufficient to meet Trinity’s evidentiary burden. However, Madden supported that
statement with a copy of the notice of default (Exhibit D), which showed that the notice
was mailed to Tony King, not to Brenda. In reviewing whether Trinity met its initial
burden, we must consider all of the evidence it provided. In this case, the attached notice
of default, on its face, raised questions about whether Trinity satisfied that condition
precedent. See Mears, 2d Dist. Montgomery No. 27995, 2019-Ohio-242 (although an
affidavit in support of summary judgment in foreclosure case indicated that plaintiff had
received HUD approval to file foreclosure, an attached letter created a genuine issue of
material fact).
{¶ 60} Trinity provided no additional evidence demonstrating that Madden’s Exhibit
D satisfied its obligation to send a notice of default. Trinity’s complaint, filed in March
2023, indicated that Brenda was then-deceased, but there is nothing in the record to
indicate when Brenda died or, more specifically, whether she was alive on May 10, 2022,
when the notice of default was sent. Even assuming Brenda was deceased on May 10,
2022, Trinity has provided no evidence that Tony was the proper party to receive the
notice of default upon Brenda’s death. Moreover, even if notice to a surviving spouse
were adequate (the original mortgage, executed in 2003, identified Brenda and Tony as
husband and wife), the parties have provided no information regarding the status of their
relationship when Brenda died. In short, Exhibit D to Madden’s affidavit created a
genuine issue of material fact as to whether Trinity did, in fact, comply with the condition -24-
precedent to send a notice of default.
{¶ 61} In its appellee’s brief, Trinity asserts that Upscale has waived any challenge
to Trinity’s compliance with conditions precedent on two grounds. First, it asserts that
Upscale did not raise the issue in the trial court and cannot raise it for the first time on
direct appeal. Second, it argues that Upscale’s answer failed to plead with particularity
its denial of compliance with conditions precedent, as required by Civ.R. 9(C), and
therefore Trinity’s compliance with conditions precedent was deemed admitted under
Civ.R. 8(D).
{¶ 62} The record belies Trinity’s assertion that Upscale did not contest Trinity’s
compliance with the conditions precedent in the trial court. Upscale’s memorandum
opposing summary judgment claimed that Trinity had failed to satisfy all conditions
precedent, arguing that the notice of default (Exhibit D to Madden’s affidavit) was
unsigned and could not be authenticated and, further, that it was not sent to the
appropriate party, the estate of Brenda King. Upscale summarized: “Plaintiff has failed
to abide by Ohio probate law, the said Notice was ineffective, and the Plaintiff has failed
to comply with all conditions precedent.” Upscale’s Summary Judgment Opposition
Mem., p. 15. Trinity did not respond to Upscale’s arguments in its reply memorandum.
{¶ 63} We question the extent to which Upscale, which was neither a party to the
note and mortgage nor a third-party beneficiary of those documents, could challenge
evidence showing Trinity’s compliance with conditions precedent. Regardless, because
Trinity did not raise this issue either in the trial court or on appeal and, further, because
Trinity’s own evidence created a genuine issue of material fact, we need not reach it. -25-
{¶ 64} As for Trinity’s argument that Upscale admitted to Trinity’s compliance with
conditions precedent through the application of Civ.R. 9(C) and Civ.R. 8(D), we conclude
that this issue is not properly before us. Trinity did not raise the application of those rules
in the trial court, and the trial court never made a specific finding regarding whether Trinity
satisfied conditions precedent. See Order Sustaining Motion for Summary Judgment, p.
4-5. Although the trial court found that Trinity “met its initial evidentiary burden on
summary judgment,” it expressly found only that Madden’s affidavit established that
Trinity “is and has been the holder in possession of the Note and Mortgage and the party
entitled to enforce the same, that the loan is in default, that the defaulted loan has been
called due, and sets forth the balance due and owing thereon.” See id., p. 5. We
conclude that it is more appropriate for Trinity to raise the application of Civ.R. 8(D) and
9(C) on remand. We note that Trinity did not provide Upscale a copy of the notice of
default prior to moving for summary judgment. Nothing in this opinion precludes Upscale
from seeking to amend its answer, if it wishes, on remand.
E. Existence of Default and Amount of Principal and Interest Due
{¶ 65} Finally, Upscale argues that Trinity failed to present evidence establishing
that the loan was in default and of the amount of principal and interest due.
{¶ 66} “An affidavit stating that the plaintiff is the owner of the note and mortgage
and that the loan is in default generally is sufficient to permit a trial court to enter summary
judgment and order foreclosure, unless there is evidence that controverts the averments.”
JP Morgan Chase Bank, N.A. v. Johnson, 2d Dist. Champaign No. 2014-CA-27, 2015-
Ohio-1939, ¶ 10; Wells Fargo Fin. Ohio 1, Inc. v. Robinson, 2d Dist. Champaign No. 2016- -26-
CA-23, 2017-Ohio-2888, ¶ 17. Moreover, we have held that a plaintiff does not need to
provide a complete payment history from the origination of the loan to establish its
entitlement to summary judgment in a foreclosure case. Anderson, 2023-Ohio-3186,
224 N.E.3d 559, at ¶ 23; see also MorEquity, Inc. v. Gombita, 2018-Ohio-4860, 125
N.E.3d 300, ¶ 44 (8th Dist.).
{¶ 67} Madden’s affidavit averred that the terms of the note had been breached,
that Trinity had elected to call the entire balance due, and that the default has not been
cured. Madden Aff., ¶ 7, 10. He further stated that $16,736.72 was due with interest at
a rate of 12.05 percent per annum from March 1, 2012. Id., ¶ 8. Madden attached a
partial payment history report, which began with April 1, 2012. The report reflected that
no payments on the note had been received from April 1, 2012, to November 1, 2018.
For each of those 80 months, the principal amount was listed as $16,736.72. The report
showed missed payments totaling $24,548.80 during that period, late charges of
$1,227.20, and attorney fees of $6,085.12, for a total reinstatement amount of $31,851.22
as of November 9, 2023.
{¶ 68} In opposing summary judgment, Lane stated in his affidavit that when
Upscale acquired the property, it was his “understanding that the loan was paid in full.”
Lane Aff., ¶ 18. Lane provided no details about why he believed that, nor did he provide
any documentary evidence demonstrating that the loan had been paid in full.
{¶ 69} Madden’s affidavit established that Brenda’s loan was in default, and Lane’s
affidavit was not sufficient to raise a genuine issue of material fact. The note provided
an interest rate of 12.05 percent, and it required Brenda to pay all amounts due on the -27-
note, in full, on November 1, 2018, if any amounts remained owing. Trinity’s payment
history showed that $16,736.72 in principal remained due on November 1, 2018, and that
no money had been applied to any of the missed payments between November 1, 2018
and when the payment history was printed in 2023. Trinity’s evidence was sufficient to
establish the amount of principal and interest due.
{¶ 70} In summary, based on the evidence before the trial court, we find that a
genuine issue of material fact exists regarding whether Trinity satisfied all conditions
precedent before filing its complaint for foreclosure. Moreover, the trial court’s ruling on
whether Trinity possessed the original note was premature, because Upscale should
have been given an opportunity to view the original note and, if appropriate, present
additional evidence regarding Trinity’s status as the holder of the note. Accordingly, the
trial court erred in granting summary judgment to Trinity on its foreclosure claim.
Upscale’s second assignment of error is sustained.
IV. Lien Priority
{¶ 71} Upscale’s third assignment of error challenges the trial court’s failure to give
Upscale’s lien “the proper priority on account of their payment of delinquent real estate
taxes.” Considering our disposition of Upscale’s first and second assignments of error,
its third assignment of error is overruled as moot.
V. Conclusion
{¶ 72} The trial court’s judgment will be reversed, and the matter will be remanded
for further proceedings.
............. -28-
TUCKER, J. and LEWIS, J., concur.