2017 Ohio 8400
Ohio Ct. App.2017Background
- In 2006 Thomas Roulston executed an $800,000 note secured by a mortgage on property; the note was later endorsed to The Bank of New York Mellon (BONY).
- Thomas defaulted in 2010; MERS assigned the mortgage to BONY in 2011, and notices of default were sent to borrowers in 2012–2013.
- BONY filed a foreclosure complaint in September 2014 seeking principal, interest, and fees; BONY moved for summary judgment.
- BONY submitted the note, mortgage, assignment, payment history, and notices of default, supported by an affidavit from Cynthia Wallace, an employee of loan servicer Specialized Loan Servicing, LLC (SLS).
- Christine King-Roulston (wife) opposed summary judgment, arguing the evidence was unauthenticated hearsay and that Wallace lacked personal knowledge of the creation and recordkeeping for some documents (notably records originating with Bank of America).
- The trial magistrate granted summary judgment; the court adopted that decision. The appellate court reversed and remanded, finding genuine issues of material fact regarding authentication.
Issues
| Issue | Bank's Argument | Christine's Argument | Held |
|---|---|---|---|
| Admissibility of loan payment and servicing records under Evid.R. 803(6) | Documents + SLS affidavit are business records admissible for summary judgment | Records are unreliable (disclaimer flag) and thus inadmissible | Reliability objection not preserved for appeal (no trial-court objection), so court did not decide reliability on appeal |
| Whether Wallace’s affidavit sufficiently authenticated records created/maintained by SLS and BONY | Wallace, as SLS employee with access and review, can authenticate SLS/BONY records | Wallace lacks personal knowledge of Bank of America’s record-keeping and thus cannot authenticate those records | Wallace can authenticate records of SLS/BONY but affidavit is insufficient to authenticate some documents originating with Bank of America; creates genuine factual issues |
| Sufficiency of evidence for summary judgment in foreclosure (holder, default, amounts) | Submitted documents and affidavit satisfy Civ.R. 56 and foreclosure proof requirements | Lack of authentication for some documents prevents awarding summary judgment | Summary judgment improperly granted due to unresolved authentication issues; case remanded |
Key Cases Cited
- Dresher v. Burt, 75 Ohio St.3d 280 (summary judgment burden-shifting framework)
- State v. Sage, 31 Ohio St.3d 173 (trial court discretion on admission/exclusion of evidence)
- State v. Davis, 62 Ohio St.3d 326 (witness need not have created document but must know the record-keeping system)
- Hetzer-Young v. Precision Airmotive Corp., 184 Ohio App.3d 516 (witness must be sufficiently familiar with business operations and recordkeeping to authenticate records)