Bank of Am. v. Curtin
2014 Ohio 5379
Ohio Ct. App.2014Background
- Bank of America filed a foreclosure complaint asserting ownership of Curtin’s promissory note and mortgage on residential property and that the loan was accelerated for default.
- Curtin (appealing pro se) denied receipt of any notice of default or acceleration and disputed Bank of America’s entitlement to foreclose.
- Bank of America moved for summary judgment supported by an affidavit of Tara M. Bradley (AVP) and attached business records, including a Notice of Intent to Accelerate dated November 16, 2010.
- Curtin opposed summary judgment, arguing the lender failed to comply with federal HUD servicing regulations and that Bradley lacked personal knowledge to authenticate the records under Evid.R. 803(6) and Civ.R. 56(E).
- The trial court granted summary judgment and ordered foreclosure; this Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal HUD servicing regulations (24 C.F.R. 201.50, 203.604) apply absent incorporation into loan documents | Regulations do not apply because the loan is not HUD-insured and the mortgage does not incorporate HUD regulations | Curtin contends regulations required face-to-face or telephonic contact and certified-mail notice before acceleration | Court: Regulations apply only when the loan/mortgage incorporates them or the loan is federally insured; here they do not apply |
| Whether Bradley’s affidavit and attached business records were admissible to prove mailing, default, and balance | Bradley, as an AVP, testified to routine recordkeeping, review of records, and that notice was mailed; such testimony satisfies Civ.R. 56(E) and Evid.R. 803(6) | Curtin argues Bradley lacked sufficient personal knowledge to authenticate records and that her denial of receipt creates a factual dispute as to mailing/delivery | Court: Bradley’s affidavit laid sufficient foundation for business records and mailing; under the note/mortgage mailing suffices and Curtin’s denial of receipt does not create a genuine issue of material fact |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (standard of review for summary judgment is de novo)
- Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d 266 (1993) (conflicting inferences on summary judgment are resolved in favor of the nonmoving party)
- Weiss v. Ferro Corp., 44 Ohio St.3d 178 (1989) (presumption of receipt from mailing under mailbox rule)