Carrington Mtge. Servs., L.L.C. v. Shepherd
2017 Ohio 868
Ohio Ct. App.2017Background
- Carrington Mortgage Services, LLC filed a foreclosure complaint (Aug 18, 2015) against Bruce R. Shepherd, alleging it was entitled to enforce a promissory note dated July 23, 2008 and an amended and restated note that increased principal.
- Mortgage and assignments: original mortgage named Taylor, Bean & Whitaker with MERS as nominee; assignment to Bank of America (2011) and later assignment to Carrington (2014); a 2013 loan modification increasing the loan amount was signed by Bank of America and Shepherd.
- Two versions of the amended and restated note were in the record: the copy attached to the complaint lacked an endorsement; an amended Exhibit B (filed April 2016) showed a blank endorsement by Bank of America and was attached to Carrington’s summary-judgment affidavit.
- Carrington moved for summary judgment and attached an affidavit from Elizabeth Ostermann (Carrington VP) plus the loan documents and payment history; defendant moved to strike Ostermann’s affidavit and opposed summary judgment, arguing lack of personal knowledge and authentication issues.
- Carrington’s counsel’s document custodian (Rachel Valli) submitted an affidavit authenticating the originals and copies and stating the originals were held in counsel’s secured file.
- Trial court denied the motion to strike and granted summary judgment to Carrington; Shepherd appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Carrington proved it had an enforceable interest in the amended and restated note | Carrington produced the endorsed amended note and affidavits showing possession at filing and authentication | Shepherd argued the endorsed copy differed from the unendorsed version attached to the complaint, creating a factual dispute about enforceability | Court held Carrington authenticated the endorsed note, showed possession at filing, and there was no genuine issue of material fact; summary judgment affirmed |
| Whether Ostermann’s affidavit was admissible | Ostermann, as Carrington VP, attested to business records, boarding of prior-servicer records, possession of the note, and debt amount | Shepherd argued Ostermann lacked personal knowledge and could not authenticate records created by prior servicers; affidavit mis-stated "reinstated" vs "restated" | Court held Ostermann had sufficient personal knowledge to authenticate records under Evid.R.803(6) and Civ.R.56(E); miswording was immaterial; motion to strike denied |
| Whether boarding/integration of predecessor records sufficed for business-records foundation | Carrington argued records were integrated, subject to quality-control boarding, and relied upon in ordinary course | Shepherd argued successor lacked firsthand knowledge to authenticate predecessor records | Court held successor-servicer testimony about integration, boarding, and reliance can satisfy business-record foundation absent contradictory evidence |
| Whether discrepancy between note versions created a genuine issue | Carrington explained that the unendorsed copy was from origination prior to endorsement and the endorsed copy reflected the note held when suit was filed | Shepherd asserted unexplained discrepancy creates factual issue preventing summary judgment | Court found explanation sufficient and uncontradicted; discrepancy did not create a genuine issue |
Key Cases Cited
- Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427 (1981) (summary-judgment standard: do not enter if reasonable minds could draw different conclusions)
- Inland Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321 (1984) (court may not resolve evidentiary ambiguities on summary judgment)
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (1987) (appellate review of summary judgment is de novo)
- Wells Fargo Bank, N.A. v. Horn, 142 Ohio St.3d 416 (2015) (holder status in foreclosure may be proved after filing; holder must be shown at time complaint filed)