Bank of Am., N.A. v. Pate
2014 Ohio 1078
Ohio Ct. App.2014Background
- Pate signed a July 2003 note for $112,251 secured by mortgage on real property.
- In August 2012, Bank of America filed foreclosure, alleging default and a balance of $100,249.47 plus interest from June 1, 2010.
- Pate answered, denying default and asserting improper notices under RESPA, mortgage terms, or FHA regulations; claimed lack of knowledge on Bank of America’s performance of conditions precedent.
- Bank of America moved for summary judgment with note, mortgage, property description, and an assignment; Pate opposed arguing improper documentary support and lack of proper notices.
- The trial court granted summary judgment for Bank of America; Pate appealed, challenging notice compliance and the evidentiary record.
- The court sustained the first assignment of error, reversing on the issue of whether proper notice of default/acceleration was provided; the case was remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proper notices of default/acceleration were provided | BOA asserts notices complied as conditions precedent; Civ.R. 9(C) permits general assertion of performance. | Pate argues notices were not properly provided, and the issue was not adequately denied with sufficient specificity. | Issues of notice preclude summary judgment; judgment reversed on this issue. |
| Whether King’s affidavit had proper personal knowledge and evidentiary foundation | King’s affidavit based on corporate records and personal knowledge; records kept in ordinary course; competent to testify. | Pate argued lack of proper personal knowledge and attached records were not provided. | Affidavit sufficient; second assignment overruled; summary judgment reversed and remanded. |
Key Cases Cited
- First Fin. Bank v. Doellman, 2007-Ohio-222 (12th Dist. Butler) (notice as a condition precedent; Civ.R. 9(C) governs pleading)
- LSF6 Mercury REO Invests. Trust Series 2008-1 v. Locke, 2012-Ohio-4499 (10th Dist. Franklin) (denial of performance must be specific to place issues at issue)
- CitiMortgage, Inc. v. Byington, 2013-Ohio-3950 (6th Dist. Erie) ( Civ.R. 9(C) denials; conditions precedent deemed admitted if not properly denied)
- Deutsche Bank Natl. Trust Co. v. Najar, 2013-Ohio-1657 (8th Dist. Cuyahoga) (affidavits may rely on business records; documentation should be attached)
- Nationstar Mtge., L.L.C. v. Perry, 2013-Ohio-5024 (8th Dist. Cuyahoga) (personal knowledge basis for affidavits; requirements of Civ.R. 56(E))
- Bank One, N.A. v. Swartz, 2004-Ohio-1986 (9th Dist. Lorain) (affidavits and attached documents; evidentiary sufficiency standards)