2016 Ohio 1156
Ohio Ct. App.2016Background
- Borrowers Mildred and Beverly Babik executed a note and mortgage on property in Geauga County; mortgage assignments showed transfer from MidFirst to Countrywide to BAC Home Loans Servicing.
- Bank of America (successor by merger to BAC) filed foreclosure on March 27, 2013, alleging default and attaching a Preliminary Judicial Report and Katherine Weir’s affidavit asserting Bank of America held the note when the complaint was filed.
- Trial court initially denied Bank of America’s summary judgment because Weir’s affidavit did not authenticate the note and mortgage copies; Bank of America later substituted Green Tree Servicing LLC as plaintiff with an assignment of mortgage attached.
- Green Tree filed a renewed summary-judgment motion supported by Gretchen Waggener’s affidavit attaching copies of the note, mortgage, payment history, and a notice of acceleration; Waggener averred Green Tree possessed the original note and mailed the acceleration notice.
- Trial court granted summary judgment for Green Tree, entering foreclosure and a money judgment; the Babiks appealed, arguing (1) Waggener’s affidavit lacked personal knowledge/authentication (and merger documents were unauthenticated) and (2) Green Tree failed to show compliance with conditions precedent to acceleration.
- The appellate court affirmed, holding Waggener’s affidavit sufficiently established possession/standing and that the notice of acceleration was attached and mailed; merger documents were authenticated by a separate affidavit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency/authentication of Waggener affidavit | Waggener, a foreclosure supervisor, reviewed business records, attached true copies of note/mortgage, and averred possession of the original note | Affidavit lacks personal knowledge of original-note possession, did not show how Green Tree obtained note, and omitted merger docs | Affidavit adequate: personal-knowledge averment + business-records foundation suffice to show possession/standing; merger docs were authenticated elsewhere |
| Compliance with conditions precedent (notice of acceleration) | Notice of acceleration was attached to the affidavit and mailed to the property address | Notice was not properly attached/authenticated and therefore acceleration was ineffective | Notice was attached and Waggener averred it was mailed; conditions precedent satisfied |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (standard of review for summary judgment is de novo)
- State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459 (Ohio 1981) (an affidavit stating it is made on personal knowledge meets Civ.R. 56(E) unless contradicted by an opposing affidavit)