Bank of Am., N.A. v. Beato

[Cite as Bank of Am., N.A. v. Beato, 2016-Ohio-8035.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

BANK OF AMERICA, N.A. ) CASE NO. 15 MA 0028
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
JOHN W. BEATO, et al. )
)
DEFENDANTS-APPELLANTS )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 2012 CV 00313

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Matthew J. Richardson
Manley Deas Kochalski LLC
P.O. Box 165028
Columbus, Ohio 43216-5028

For Defendant-Appellant: Atty. Bruce M. Broyles
5815 Market Street, Suite 2
Boardman, Ohio 44512

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: December 7, 2016
[Cite as Bank of Am., N.A. v. Beato, 2016-Ohio-8035.]
WAITE, J.

{¶1} Appellant John W. Beato appeals the January 26, 2015 decision of the

Mahoning County Common Pleas Court to grant summary judgment in favor of

Appellee Bank of America, N.A. in its foreclosure action.

{¶2} In 2007, Appellant signed a promissory note for $540,000 and

corresponding mortgage on 7220 Cobblers Run, Youngstown, Ohio 44514.

Appellee was later assigned the note and mortgage. Appellant subsequently

defaulted on the loan. On February 2, 2012, Appellee filed a complaint seeking

judgment on the note and mortgage and asking for foreclosure on the property.

Attached to the complaint was a copy of the note endorsed in blank, mortgage and

assignment of mortgage. Appellant filed a pro se answer on March 5, 2012.

Appellee filed a motion for summary judgment on April 16, 2012. Attached to the

motion were a copy of the account information statement and the affidavit of

Assistant Vice President of Bank of America, N.A., Alan Haben. Haben averred that

Appellant had defaulted under the terms of the note and mortgage by failing to make

the monthly installment payments, that the debt had been accelerated, and that the

total due under the note was the principal sum of $561,206.50 plus interest.

{¶3} Appellant subsequently filed a Chapter 13 bankruptcy petition. The

matter was then subject to an automatic stay. The stay was lifted and the instant

matter was returned to the active docket on July 25, 2014. Appellant filed a

memorandum in opposition on October 24, 2014 and a motion to strike the Haben

affidavit, as it allegedly failed to demonstrate that Appellee was in possession of the

note. Appellee filed a reply and filed an objection to the motion to strike, asserting
 -2-

that the Haben affidavit laid a proper foundation to admit the business records and

that Appellee had properly attached copies of the note, mortgage and assignment of

mortgage to the complaint. Appellee also asserted that Appellant failed to present

any evidence in support of his claims against Appellee’s affidavit and evidence.

{¶4} On January 26, 2015, the trial court granted summary judgment in favor

of Appellee, concluding that Appellee was entitled to a decree of foreclosure. This

appeal followed. Based on the following, Appellant’s assignment of error is without

merit and the judgment of the trial court is affirmed.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO APPELLEE WHEN THERE WERE GENUINE ISSUES OF

MATERIAL FACT STILL IN DISPUTE.

{¶5} This appeal is from a trial court judgment resolving a motion for

summary judgment. An appellate court conducts a de novo review of a trial court’s

decision to grant summary judgment, using the same standards as the trial court set

forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996). Before summary judgment can be granted, the trial court must

determine that: (1) no genuine issue as to any material fact remains to be litigated,

(2) the moving party is entitled to judgment as a matter of law, (3) it appears from the

evidence that reasonable minds can come to but one conclusion, and viewing the

evidence most favorably in favor of the party against whom the motion for summary

judgment is made, the conclusion is adverse to that party. Temple v. Wean United,
 -3-

Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is “material”

depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon &

Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995).

{¶6} “[T]he moving party bears the initial responsibility of informing the trial

court of the basis for the motion, and identifying those portions of the record which

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280,

296, 662 N.E. 2d 264 (1996). If the moving party carries its burden, the nonmoving

party has a reciprocal burden of setting forth specific facts showing that there is a

genuine issue for trial. Id. at 293. In other words, when presented with a properly

supported motion for summary judgment, the nonmoving party must produce some

evidence to suggest that a reasonable factfinder could rule in that party’s favor.

Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th

Dist.1997).

{¶7} In an action for foreclosure, the mortgagor must establish an interest in

the promissory note or mortgage in order to have standing in the action. Fed. Home

Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d

1214, ¶ 28; see also Deutsche Bank Natl. Trust Co. v. Holden, Slip Opinion No.

2016-Ohio-4603, paragraph one of the syllabus.

{¶8} Appellee filed its motion for summary judgment on April 16, 2012.

Attached to the motion was an affidavit executed by Alan Haben, an authorized

signer and an Assistant Vice President of Appellee. Haben averred that the
 -4-

information contained in the affidavit came from Appellee’s business records; that

Appellee had possession of the note; and that Appellant had defaulted under the

terms of the note and mortgage by failing to make his monthly payments. Haben

further averred that the indebtedness had been accelerated and that the total due

under the note was a principal sum of $561,206.50 plus interest. Attached to

Haben’s affidavit was an account information statement. The note endorsed in blank,

mortgage, assignment of mortgage and certificate of merger were attached to

Appellee’s complaint.

{¶9} On appeal, Appellant argues that Haben’s affidavit is not based on his

personal knowledge that Appellee had possession of the note. Hence, Appellant

argues the affidavit contains inadmissible hearsay and should not have been

considered by the trial court. Specifically, Appellant claims that in Haben’s affidavit

he states that he reviewed the business records and that Appellee is in possession of

the note, but that Haben did not attach any business records from which the court

could determine that Appellee did have possession of the note. The only record

attached to the affidavit was an account information statement of Bank of America

regarding Appellant’s loan.

{¶10} Pursuant to R.C. 1303.31, a holder of a note is entitled to enforce the

instrument. A holder in possession is a person in possession of a negotiable

instrument that is payable to either bearer or to an identified individual in possession.

R.C. 1301.201(B)(21)(a). A note endorsed in blank is bearer paper. R.C.
 -5-

1303.10(A)(2). As such, Appellee was required to show it had possession of the note

when it filed the complaint in the foreclosure action. R.C. 1303.201(B)(21)(a).

{¶11} Evidence Rule 803(6) entitled: “Records of regularly conducted activity”

provides that records of regularly conducted business activity are admissible as a

hearsay exception if asserted to be “by the testimony of the custodian or other

qualified witness.” In order to be admissible pursuant to Evid.R. 803(6), a business

record must satisfy four elements: (1) the record must have been kept in the regular

course of business; (2) it must stem from a source that has personal knowledge of

the acts, events or conditions; (3) it must have been recorded at or near the time of

the transaction at issue; and (4) a foundation must be laid by testimony of the

custodian of the record or some other qualified individual. State v. Davis, 116 Ohio

St.3d 404, 429, 880 N.E.2d 31 (2008). The affiant need not have first-hand

knowledge of the underlying transaction referenced in the business record. However,

the witness must be “sufficiently familiar with the operation of the business and with

the circumstances of the record’s preparation, maintenance and retrieval, that he can

reasonably testify on the basis of his knowledge that the record is what it purports to

be, and that it was made in the ordinary course of business consistent with the

elements of Rule 803(6).” U.S. Bank, N.A. v. Martin, 7th Dist. No. 13 MA 107, 2014-

Ohio-3874, ¶ 31 (citations omitted).

{¶12} Haben stated in his affidavit that he had personal knowledge of the

procedures for creating the records in question:
 -6-

The information in this affidavit is taken from BANA’s business records.

These records are: (a) made at or near the time of the occurrence of

the matters recorded by persons with personal knowledge of the

information in the business record, or from information transmitted by

persons with personal knowledge; (b) kept in the course of BANA’s

regularly conducted business activities; and (c) it is the regular practice

of BANA to make such records. I have personally reviewed the

attached records, and I make this affidavit from a review of those

business records and from my personal knowledge of how said records

are created and maintained.

(Haben Aff., ¶ 3.)

{¶13} Appellant cites Deutsche Bank National Trust Co. v. Dvorak, 9th Dist.

No. 27120, 2014-Ohio-4652 for the contention that Haben failed to detail his job

responsibilities in order to demonstrate his competency. On the contrary, Haben

identifies his job title and specifically discussed his duties, stating, “[a]s part of my job

responsibilities for BANA, I am familiar with the type of records maintained by BANA

in connection with the Loan.” (Haben Aff., ¶ 2.) Unlike Dvorak, where there were

other defects with the record, this affiant has met the requirement for admissibility

under Evid.R. 803(6). We have previously found that similar affidavits were

sufficiently based on personal knowledge and affirmed the trial court’s decision to

grant summary judgment. U.S. Bank, N.A. v. Martin, supra; U.S. Bank, N.A. v. Crow,

7th Dist. No. 15 MA 0113, 2016-Ohio-5391. Moreover, the affidavit’s averment that
 -7-

the plaintiff was in possession of the note at the time the complaint was filed is further

supported by the fact that a copy of the note endorsed in blank was attached to the

complaint when it was filed. Nationstar Mtge., L.L.C. v. Wagener, 8th Dist. No.

101280, 2015-Ohio-1289.

{¶14} Appellant also contends that in his opposition to Appellee’s motion for

summary judgment he filed both deposition and trial testimony from two of Appellee’s

employees to show that Haben’s reliance on Appellee’s business records was

misguided. However, Appellee objected to the documents as inadmissible for lack of

certification pursuant to Civ.R. 56(C). Civ.R. 56(C) very specifically prescribes what

evidentiary material may be considered in deciding a motion for summary judgment.

“Documents submitted in opposition to a motion for summary judgment which are not

sworn, certified, or authenticated by affidavit have no evidentiary value and may not

be considered by the court in deciding whether a genuine issue of material fact

remains for trial.” Green v. B.F. Goodrich Co., 85 Ohio App.3d 223, 228, 619 N.E.2d

497 (9th Dist.1993). While Appellant attached alleged deposition and trial testimony,

both from other cases in other jurisdictions, absent deponent signature or court

reporter certification neither of these was admissible and could not appropriately

have been considered by the trial court in making its determination.

{¶15} This record reflects that Appellee brought the instant foreclosure action

against Appellant for defaulting on the mortgage. Appellee’s affidavit in support of

the summary judgment motion was sufficiently based upon personal knowledge and
 -8-

was properly considered by the trial court. Appellant’s assignment of error is without

merit and is overruled.

{¶16} Accordingly, the trial court properly sustained Appellee’s motion for

summary judgment and granted foreclosure. The judgment of the trial court is

affirmed.

Donofrio, P.J., concurs.

Robb, J., concurs.