U.S. Bank N.A. v. Howard

2015 Ohio 5230

• Court: Ohio Court of Appeals
• Decided: December 14, 2015
• Docket: 15-CA-00002
• Status: Published

Opinion

[Cite as U.S. Bank N.A. v. Howard, 2015-Ohio-5230.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

U.S. BANK N.A., AS TRUSTEE ON : JUDGES: BEHALF OF MANUFACTURED : Hon. Sheila G. Farmer, P.J. HOUSING CONTRACT : Hon. John W. Wise, J. SENIOR/SUBORDINATE : Hon. Patricia A. Delaney, J. PASS-THROUGH CERTIFICATE : TRUST 2000-5 : : Plaintiff-Appellee : : -vs- : Case No. 15-CA-00002 : ROBERT R. HOWARD, II, ET AL. : : Defendants-Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 13-CV-00401

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 14, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

DAVID J. DEMERS BRUCE M. BROYLES MICHELLE L. POLLY-MURPHY 5815 Market Street 260 Market Street Suite 2 Suite F Boardman, OH 44512 New Albany, OH 43054 Perry County, Case No. 15-CA-00002 2

Farmer, J.

{¶1} On December 16, 2013, appellee, U.S. Bank, N.A., as Trustee on Behalf

of Manufactured Housing Contract Senior/Subordinate Pass-Through Certificate Trust

2000-5, filed a complaint in foreclosure against appellant, Robert Howard, II, and others,

for the failure to pay on a note secured by a mortgage.

{¶2} A bench trial commenced on November 25, 2014. By judgment entry filed

December 18, 2014, the trial court found in favor of appellee and ordered foreclosure.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶4} "THE TRIAL COURT ERRED IN FINDING THAT MICHELLE BRAY WAS

A QUALIFIED WITNESS TO AUTHENTICATE OTHERWISE HEARSAY DOCUMENTS

AS BUSINESS RECORDS DEMONSTRATING THAT THE LOAN WAS IN DEFAULT

AND THE AMOUNT OF THE DEFAULT."

II

{¶5} "THE TRIAL COURT ERRED IN ACCEPTING MICHELLE BRAY'S

TESTIMONY THAT THE PROMISSORY NOTE WAS IN POSSESSION OF GREEN

TREE SERVICING LLC ON BEHALF OF U.S. BANK AS TRUSTEE ON BEHALF

MANUFACTURED HOUSING CONTRACT SENIOR/SUBORDINATE PASS-

THROUGH CERTIFICATE TRUST 2000-5."

III

{¶6} "THE TRIAL COURT ERRED IN REFUSING TO ADMIT APPELLANT'S

EXHIBIT 1, THE COMPUTER PRINT OUT OF THE PROSPECTUS, PROSPECTUS Perry County, Case No. 15-CA-00002 3

SUPPLEMENT AND THE TRANSFER AGREEMENT FOR THE TRUST KNOWN AS

THROUGH CERTIFICATE TRUST 2000-5 AS A SELF AUTHENTICATING

DOCUMENT."

IV

{¶7} "THE TRIAL COURT ERRED IN FINDING THAT U.S. BANK AS

TRUSTEE ON BEHALF MANUFACTURED HOUSING CONTRACT

SENIOR/SUBORDINATE PASS-THROUGH CERTIFICATE TRUST 2000-5 HAD AN

INTEREST IN THE PROMISSORY NOTE AND MORTGAGE AS THE ATTEMPTED

TRANSFER OF THOSE ASSETS WERE AFTER THE CLOSING DATE OF THE

TRUST."

I, II

{¶8} Appellant claims the trial court erred in determining Michelle Bray was a

qualified witness to authenticate the business records, and lost its way and erred in

finding her employer, Green Tree Servicing, LLC, had possession of the promissory

note. We disagree.

{¶9} On review for manifest weight, the standard in a civil case is identical to

the standard in a criminal case: a reviewing court is to examine the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact]

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52; Perry County, Case No. 15-CA-00002 4

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179. In weighing the evidence,

however, we are always mindful of the presumption in favor of the trial court's factual

findings. Eastley at ¶ 21.

{¶10} As explained by this court in Huntington National Bank, N.A. V. The

Sussex Group, LTD., 5th Dist. Stark No. 2010CA00280, ¶ 21:

We are to defer to the findings of the trier of fact because in a

bench trial the trial judge is best able to view the witnesses and observe

their demeanor, gestures, and voice inflections, and use these

observations in weighing the credibility of the testimony. Seasons Coal

Company, Inc. v. City of Cleveland (1984), 10 Ohio St.3d 77, 461 N.E.2d

1273. We may not substitute our judgment for that of the trier of fact.

Pons v. Ohio State Medical Board (1993), 66 Ohio St.3d 619, 614 N.E.2d

748, 621.

{¶11} Evid.R. 104(A) governs questions of admissibility generally and states:

"Preliminary questions concerning the qualification of a person to be a witness, the

existence of a privilege, or the admissibility of evidence shall be determined by the

court, subject to the provisions of subdivision (B). In making its determination it is not

bound by the rules of evidence except those with respect to privileges." Subsection (B)

pertains to relevancy. In order to find that the trial court abused its discretion, we must

determine the trial court's decision was unreasonable, arbitrary or unconscionable and Perry County, Case No. 15-CA-00002 5

not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217

(1983).

{¶12} Evid.R. 803 governs hearsay exceptions. Subsection (6) defines records

of regularly conducted activity that are not excluded by the hearsay rule as follows:

A memorandum, report, record, or data compilation, in any form, of

acts, events, or conditions, made at or near the time by, or from

information transmitted by, a person with knowledge, if kept in the course

of a regularly conducted business activity, and if it was the regular practice

of that business activity to make the memorandum, report, record, or data

compilation, all as shown by the testimony of the custodian or other

qualified witness or as provided by Rule 901(B)(10), unless the source of

information or the method or circumstances of preparation indicate lack of

trustworthiness. The term "business" as used in this paragraph includes

business, institution, association, profession, occupation, and calling of

every kind, whether or not conducted for profit.

{¶13} Michelle Bray testified as to her position as Assistant Vice-President for

Green Tree Servicing, the servicer of the mortgage for appellee, stating, "I'm in charge

of servicing mortgages for Green Tree Servicing, including keeping all records, making

sure all records are accurate." T. at 7. Ms. Bray testified she was in charge of servicing

the mortgage and had firsthand knowledge of appellant's loan. T. at 8. She identified

the original mortgage and note within the possession of Green Tree. T. at 9-13; Perry County, Case No. 15-CA-00002 6

Plaintiff's Exhibits A and B. As for the payment records, Ms. Bray explained they were

business records kept in the ordinary course of business by Green Tree, and she has

daily access to the collection system. T. at 20, 23.

{¶14} In addition, Ms. Bray testified Green Tree had physical possession of the

original note, and testified the original documents are kept in Tempe, Arizona. T. at 10-

13, 33-36. The note was endorsed and blank. T. at 12; Plaintiff's Exhibit B. "When an

instrument is endorsed in blank, the instrument becomes payable to bearer and may be

negotiated by transfer of possession alone until specially endorsed. R.C. 1303.25(B)."

Deutsche Bank National Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-

1657.

{¶15} We find Ms. Bray's testimony to be sufficient to establish her as a qualified

witness to the business records, and to establish that Green Tree was in possession of

the note. The trial court did not lose its way.

{¶16} Assignments of Error I and II are denied.

{¶17} Appellant claims the trial court erred in denying Defendant's Exhibit 1, a

computer printout from a governmental website of a Prospectus, Prospectus

Supplement, and Transfer Agreement for a trust known as Manufactured Housing

Contract Senior/Subordinate Pass-Through Certificate Trust 2000-5. Appellant claims

the trial court erred in finding it was not self-authenticated. We disagree.

{¶18} Evid.R. 902(5) states: "Extrinsic evidence of authenticity as a condition

precedent to admissibility is not required with respect to the following: (5) Official Perry County, Case No. 15-CA-00002 7

publications. Books, pamphlets, or other publications purporting to be issued by public

authority."

{¶19} Appellant's trial counsel discussed the document with Ms. Bray, who

admitted she had seen it previously, but was not familiar with it. T. at 37-38.

{¶20} Civ.R. 61 governs harmless error and states the following:

No error in either the admission or the exclusion of evidence and no

error or defect in any ruling or order or in anything done or omitted by the

court or by any of the parties is ground for granting a new trial or for

setting aside a verdict or for vacating, modifying or otherwise disturbing a

judgment or order, unless refusal to take such action appears to the court

inconsistent with substantial justice. The court at every stage of the

proceeding must disregard any error or defect in the proceeding which

does not affect the substantial rights of the parties.

{¶21} The trial court believed Ms. Bray was not the person who should be

introducing the exhibit. T. at 38. Even if the trial court's conclusion was incorrect, we do

not find an abuse of discretion because appellant has failed to point to any prejudice.

Appellee was the holder of the note, endorsed and blank, and was identified as the

server of appellant's account.

{¶22} Assignment of Error III is denied. Perry County, Case No. 15-CA-00002 8

{¶23} Appellant claims the trial court erred in finding appellee had an interest in

the note and mortgage. We disagree.

{¶24} Appellant claims he has standing to challenge the validity of the

assignment of the mortgage. As explained by this court in U.S. Bank, N.A. v. Lawson,

5th Dist. Delaware No. 13CAE030021, 2014-Ohio-463, ¶ 39:

In Deutsche Bank Natl. Trust Co. v. Whiteman, 10th Dist. Franklin

No. 12AP-536, 2013-Ohio-1636, ¶ 16, the Tenth District Court of Appeals

relied upon LSF6 Mercury REO Invs. Trust Series 2008-1 v. Locke, 10th

Dist. Franklin No. 11AP–757, 2012–Ohio–4499*** to hold: "because a

debtor is not a party to the assignment of a note and mortgage, the debtor

lacks standing to challenge their validity." In Whiteman, there was no

dispute between the original mortgagee and the entity subsequently

named as an assignee of the note and mortgage as to the identity of the

holder of the note and mortgage. Rather, only the borrower challenged

the assignment's validity, and there was no dispute that the borrower had

defaulted on his loan and was subject to foreclosure. Id. at ¶ 16. See

also JPMorgan Chase Bank, N.A. v. Romine, 10th Dist. Franklin No.

13AP-58, 2013-Ohio-4212; HSBC Bank USA, National Assn. v. Surrarrer,

8th Dist. Cuyahoga No. 100039, 2013–Ohio–5594. (Footnote omitted.) Perry County, Case No. 15-CA-00002 9

{¶25} Appellant also challenges the assignment of the mortgage to appellee.

There is no evidence the transfer was invalid because both allonges and the

assignment to appellee were presented to the trial court, and the mortgage and note

were in appellee's physical possession. T. at 9-15; Plaintiff's Exhibit C.

{¶26} Assignment of Error IV is denied.

{¶27} The judgment of the Court of Common Pleas of Perry County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Delaney, J. concur.

SGF/sg 124