Huntington Natl. Bank v. Kopnisky

[Cite as Huntington Natl. Bank v. Kopnisky, 2017-Ohio-641.]

STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT

THE HUNTINGTON NATIONAL BANK, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 15 MA 0172
V. )
) OPINION
DENNIS G. KOPNISKY, et al., )
)
DEFENDANTS-APPELLANTS. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 15 CV 331

JUDGMENT: Affirmed

APPEARANCES:
For Plaintiff-Appellee Attorney Eric T. Deighton
24755 Chagrin Blvd., Suite 200
Cleveland, Ohio 44112

For Defendants-Appellants Attorney Bruce M. Broyles
5815 Market Street, Suite 2
Boardman, Ohio 44512

JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb

Dated: February 14, 2017
[Cite as Huntington Natl. Bank v. Kopnisky, 2017-Ohio-641.]
DONOFRIO, J.

{¶1} Defendants-appellants, Dennis and Sonya Kopnisky, appeal the
summary judgment entered against them and the decree of foreclosure entered by
the Mahoning County Common Pleas Court.
{¶2} On August 12, 2005, Appellants signed a note promising to pay Sky
Bank, the lender, $78,000.00. Monthly payments were due on the first day of each
month. Exhibit B, ¶ 3. Failure to pay the amounts when due would put Appellants in
default. The note provides that if Appellants are in default, the holder of the note may
send a written notice telling Appellants that they are in default and if payments are
not made by a date certain, the holder of the note may require Appellants to
immediately pay the full amount owed. The note provides that the date by which
payment would have to be made “must be at least 30 days after the date on which
the notice is mailed * * * or delivered by other means.” Exhibit B ¶ 6(C).
{¶3} On the same day, August 12, 2005, Appellants signed a mortgage to
secure the note in favor of the lender, Sky Bank.
{¶4} Sky Bank was acquired by Plaintiff-appellee, Huntington National Bank,
on September 21, 2007.
{¶5} On January 13, 2010, Appellants signed a Loan Modification
Agreement with Huntington. Exhibit C.
{¶6} On November 9, 2014, Huntington mailed a Notice of Intention to
Accelerate and Foreclose, dated November 4, 2014, to Appellants stating that they
were in default and that the full amount due of $5,005.32 had to be paid by
December 9, 2014, or their mortgage would be accelerated which meant they would
have to repay the balance due in full, and foreclosure might be initiated. The Notice
was received by Appellants on November 10, 2014.
{¶7} On February 5, 2015, Huntington filed a complaint based upon the note
and the mortgage. Since no answer was filed, on March 23, 2015, Huntington filed a
motion for default judgment. On March 24, 2015, Appellants filed a motion for leave
to file an answer instanter. The trial court granted their motion on the same day. In
addition to generally denying the allegations in the complaint, Appellants asserted
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affirmative defenses. Appellants claimed that Huntington failed to provide the notice
of default required by paragraph 6(C) of the note, that Huntington failed to perform all
conditions precedent to accelerate the debt and foreclose pursuant to paragraph 22
on page 13 of 14 of Form 3036, and that Huntington did not have a valid mortgage
because of contradictory legal descriptions and because no master mortgage
document was recorded with the mortgage.
{¶8} On July 16, 2015, Huntington filed a motion for summary judgment and
attached the affidavit of Robin Scott. The Scott affidavit states that Robin Scott is an
authorized signer for Huntington, which is the successor by merger to Sky Bank as
demonstrated by the National Information Center report attached to the affidavit as
Exhibit A. The Scott affidavit provides that Huntington maintains physical loan files
and computer databases associated with each of its loans. Scott states that the
material in those files is placed there by a person with knowledge and in the normal
course of business. Scott attested in her affidavit that she has access to the loan files
and reviewed the files relative to the pending matter. She states that she has
personal knowledge of the business records described in her affidavit and of the
contents of those records. Scott states that the documents attached to her affidavit
are true and accurate copies of the records. Attached to the affidavit are the note
(Exhibit B), loan modification agreement (Exhibit C), the mortgage (Exhibit D), and
the Master Mortgage separately recorded in Mahoning County (Exhibit E). Scott
states that all of the prerequisites necessary to accelerate the note and mortgage
were performed and that the Notice of Default Letter mailed by First Class Mail is
attached as Exhibit F. She provides in her affidavit that Appellants are in default. She
attaches the loan histories to her affidavit as Exhibit G.
{¶9} Appellants filed a Memorandum in Opposition to Huntington’s motion
for summary judgment asserting that the Scott affidavit should not be accepted, that
the records attached to it did not qualify as exceptions to the hearsay rule pursuant to
Evid.R. 803(6), that Huntington failed to prove that it was the successor in interest to
Sky Bank, and that Huntington failed to comply with all conditions precedent to
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foreclosure.
{¶10} The trial court granted summary judgment to Huntington on August 27,
2015. The trial court concluded that the Scott affidavit was sufficient and that all the
documents attached thereto met the requirements of Evid.R. 803(6). The trial court
determined that Huntington met all the conditions precedent and noted that
Appellants failed to submit any evidentiary material whatsoever. On September 4,
2015, the trial court filed a judgment entry ordering foreclosure and sale of the
mortgaged property.
{¶11} Appellants’ sole assignment of error states:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
WHEN THERE WERE GENUINE ISSUES OF MATERIAL FACT STILL
IN DISPUTE.

{¶12} In U.S. Bank, N.A. v. Martin, 7th Dist. No. 13 MA 107, 2014-Ohio-3874,
¶ 11-12, we reiterated the duty of an appellate court when reviewing a trial court’s
decision with regard to summary judgment. An appellate court reviews a trial court's
decision on a motion for summary judgment de novo. Bonacorsi v. Wheeling & Lake
Erie Ry. Co., 95 Ohio St.3d 314, 2002–Ohio–2220, 767 N.E.2d 707, at ¶ 24.
Summary judgment can be granted where there remain no genuine issues of material
fact for trial and where, after construing the evidence most strongly in favor of the
nonmovant, reasonable minds can only conclude that the moving party is entitled to
judgment as a matter of law. Byrd v. Smith, 110 Ohio St.3d 24, 2006–Ohio–3455,
850 N.E.2d 47, ¶ 10, citing Civ.R. 56(C). The burden of showing that there is no
genuine issue of material fact initially falls upon the party who files for summary
judgment. Id. citing Dresher v. Burt, 75 Ohio St.3d 280, 294, 1996-Ohio-107, 662
N.E.2d 264.
{¶13} Thereafter, the nonmovant may not rest upon the mere allegations or
denials of the party's pleadings. Civ.R. 56(E). The burden shifts to the nonmoving
party to produce evidence on any issue for which it would bear the burden of
 -4-

production at trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, 674 N.E.2d
1164; Civ.R. 56(E). “If the party does not so respond, summary judgment, if
appropriate, shall be entered against the party.” Civ.R. 56(E).
{¶14} To support a motion for summary judgment in a foreclosure action, the
plaintiff must present evidentiary-quality materials establishing 1) that it is the holder
of the note and mortgage, or is entitled to enforce the instrument, 2) if not the original
mortgagee, the chain of assignments or transfers, 3) that all conditions precedent
have been met, 4) that the mortgagor is in default, and 5) the amount of principal and
interest due. Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. No. 2010-CA-
00291, 2011-Ohio-3203, ¶ 40-45.
{¶15} Appellants divide their only assignment of error into three issues for
review. Those three issues involve the first three requirements set forth above in
Wachovia. Appellants do not contest that they are in default or the amount due in
principal or interest, i.e., requirements four and five.
{¶16} Appellants’ first issue questions the ability of Huntington to enforce the
note. Their second issue involves whether Scott’s affidavit was sufficient for purposes
of the business records exception to the hearsay rule set forth in Evid.R. 803(6).
Appellants’ third issue asserts that there was a genuine issue of material fact as to
whether Huntington met all conditions precedent. Appellants address their first two
issues for review together.
{¶17} The facts relied upon with regard to a motion for summary judgment
must comply with Civ.R. 56(C). Martin at ¶ 26. Affidavits, supporting and opposing,
“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.” Civ. R. 56(E). The requirement that the
affiant have personal knowledge is satisfied if the affiant states that the affidavit is
made on personal knowledge, unless controverted by other evidence, or if the
contents of the affidavit allow one to infer that the affidavit was made upon personal
knowledge. Martin at ¶ 26, citing Bank One, N.A. v. Swartz, 9th Dist. No. 03CA8303,
 -5-

2004-Ohio-1986, ¶ 14-16.
{¶18} Appellants assert Scott’s affidavit is unacceptable because Scott’s
statements are contradicted by the documents attached to the affidavit. First,
Appellants assert that Scott’s personal knowledge that Huntington is the successor to
Sky Bank comes from an unauthenticated form on the internet. We assume
Appellants are referring to the statement in paragraph one of Scott’s affidavit. We
read that sentence differently. Scott states that Huntington is the successor by
merger to Sky Bank and that this fact is evidenced by a National Information Center
report, which is attached to her affidavit and purports to be a repository of financial
data and institution characteristics collected by the Federal Reserve System and
placed on the internet. Scott also states that she is an authorized signer of
Huntington. We do not find these statements to be conflicting. Furthermore,
Appellants have offered no evidence which controverts Scott’s sworn statement.
There is no evidence that suggests that Huntington is not the successor to Sky Bank.
{¶19} Next, Appellants complain that Exhibit A, the National Information
Center page, states that Sky Bank was acquired by Huntington but that Exhibit C, the
Loan Modification Agreement, describes Huntington not as the payee or successor in
interest to Sky Bank but as a “servicer.” However, Appellants’ representation is only
partially accurate. Exhibit C, the Loan Modification Agreement, begins by describing
Huntington as the “Lender and/or Servicer” and indicates that, thereafter, Huntington
is referred to as the “Lender.” Again, this is not a contradiction. And, in light of
Appellants’ failure to present any contrary evidence, this does not create a genuine
issue of material fact.
{¶20} Appellants, also, seemingly complain that the note is endorsed in blank
by Sky Bank and, thus, the note did not need to be endorsed to convey title to Sky
Bank’s successor in interest. This observation does not create a genuine issue of
material fact. In fact, it has the opposite result. If Appellants’ argument is accepted,
Huntington is clearly the holder of the note and can enforce it. The Scott affidavit
establishes that Huntington is the successor by merger to Sky Bank, that it is entitled
 -6-

to enforce the note, and that the affidavit and business records attached thereto
otherwise meet the requirements of Evid.R. 803(6). Thus, Appellants’ first two issues
for review are without merit.
{¶21} Appellants’ third issue for review questions whether there is a genuine
issue of material fact regarding Huntington’s compliance with all conditions
precedent. Specifically, Appellants complain that Huntington failed to comply with
Paragraph 6(C) of the note which provides:

If I am in default, the Note Holder may send me 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 that I owe on that amount.
That date must be at least 30 days after the date on which the notice is
mailed to me or delivered by other means.

(Exhibit B, ¶ 6(C)). Further, the Master Mortgage provides that the notice “shall
specify * * * a date, not less than 30 days from the date the notice is given to the
Borrower, by which the default must be cured * * *.” (Exhibit E, ¶ 22). Appellants
assert that, in regard to both, they were given only 29 days to cure their default.
{¶22} Since the note and Master Mortgage provide that a notice of default and
acceleration must be provided, and that Appellants be given time to cure the default,
notice is a condition precedent subject to the requirements of Civ.R. 9(C). Martin at
¶ 14. In pleading the performance of any conditions precedent, a general averment to
that extent is sufficient. Id., Civ.R. 9(C). The denial of performance or occurrence,
however, “shall be made specifically and with particularity.” Id. Conditions precedent
not denied pursuant to Civ.R. 9(C) are deemed admitted. Id. Here, the parties do not
contest whether the condition precedent was properly pleaded in the complaint or
properly denied in the answer. Instead, Appellants assert that there is a genuine
issue of material fact as to whether the condition precedent was satisfied.
{¶23} Appellants argue that the notice must provide at least 30 days to cure
 -7-

the default after delivery. Appellants count the days after delivery. The trial court
similarly concluded that the date of receipt is the operative date. Counting the days
after delivery or after receipt is incorrect. The note, quoted above, provides that the
time to cure is “30 days after the date on which the notice is mailed to me
[Appellants] or delivered by other means.” This language does not require actual
delivery. The Master Mortgage provides that Appellants be provided 30 days from the
date the notice is given to Appellants. The Master Mortgage further provides that any
notice to Appellants “shall be deemed to have been given to Borrower when mailed
by first class mail or when actually delivered * * *.” (Exhibit E, ¶ 15). Actual receipt is
not required by either the note or the Master Mortgage.
{¶24} Huntington also draws the court’s attention to paragraph seven of the
note. Paragraph seven of the note provides that any required notices will be given by
delivery or by mailing the notice by first class mail. Contrary to Huntington’s
assertion, this paragraph does not state that the day of mailing is deemed the date of
notice.
{¶25} Thus, the question presented is on what date a first class mailing to
Appellants occurred and whether they were provided 30 days after that mailing to
cure the default. Although Huntington does not say so with any particularity, it seems
to strongly imply that there were two mailings here, one by first class mail on the
same day as the date of the notice, i.e., November 4, 2014, and a second, certified
mailing, on November 9, 2014. Indeed, Huntington asks the court to accept a mailing
on November 4, 2014, allowing Huntington to make the argument that Appellants
actually had 35 days’ notice. To support its argument that there was 35 days’ notice,
Huntington states: “See un-contradicted affidavit of Robin Scott.”
{¶26} Before discussing Scott’s affidavit, as suggested by Huntington, we
note that the Notice of Intention to Accelerate and Foreclose is dated November 4,
2014, but the USPS Tracking internet printout attached to it states that the Postal
Product was first class mail with the feature titled “Certified Mail.” (Exhibit F). This
document relates only to the certified mail. It demonstrates that the document was
 -8-

mailed November 9, 2014, and was delivered on November 10, 2014. It does not
reflect that any other item was mailed before November 9, 2014.
{¶27} Thus, as Huntington suggests, Scott’s affidavit is important in
determining if there was both a first class mailing and a certified mailing and, if there
were both, determining when the first class mailing occurred.
{¶28} Paragraph 5 of the Scott affidavit is the only part of the affidavit which
addresses the condition precedent. It states:

That all of the prerequisites required under the note and mortgage
necessary to accelerate the balance due on the note have been
performed and that a true and accurate copy of the Notice of Default
Letter mailed by First Class Mail is attached hereto as Exhibit “F” and is
incorporated herein; and, that plaintiff has accelerated and called due
the entire principal balance due thereon * * *

(Exhibit F). Contrary to Huntington’s implications, this affidavit is devoid of any
reference to a mailing of any sort on November 4, 2014. Thus, there is no factual
support for Huntington’s assertion that 35 days’ notice was provided. At best, Scott’s
affidavit establishes one mailing date, by any means, and that date is November 9,
2014. Scott’s affidavit and Exhibit F indicate only that there was a first class mailing
by certified mail on November 9, 2014.
{¶29} The note states that Appellants be given 30 days’ notice after the date
on which the notice is mailed or delivered by other means. The Master Mortgage
states that notice is deemed given on the date of mailing or when actually delivered.
The notice was mailed on November 9, 2014 and delivered on November 10, 2014. It
provided that Appellants had to cure the default by December 9, 2014. Neither party
contests that a certified (first class mailing) took place on November 9, 2014.
Counting 30 days after the date of mailing, i.e., excluding November 9, 2014 from the
calculation, 30 days would give Appellants until December 9, 2014, the date provided
 -9-

in the Notice of Intention to Accelerate and Foreclose. Thus, Appellants’ third issue
for review is without merit.
{¶30} Accordingly, Appellants’ sole assignment of error is without merit and is
overruled.
{¶31} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Waite, J., concurs.

Robb, P.J., concurs.