Cent. Mtge. Co. v. Bonner
2013 Ohio 3876
Ohio Ct. App.2013Background
- Bonner borrowed $241,775 from Vandyk in 2008, secured by a mortgage on residential property; loan was modified in 2010 and 2011; Vandyk later assigned the mortgage to Central Mortgage.
- Central Mortgage sued Bonner for foreclosure in Butler County Common Pleas on January 17, 2012; it moved for summary judgment.
- Central Mortgage submitted Janice Davis’s affidavit and attached the original signed note (endorsed in blank), mortgage, two loan-modification agreements, and the assignment of mortgage.
- Bonner moved to strike Davis’s affidavit and argued the attachments were inadmissible hearsay and not authenticated because Central Mortgage did not create the records.
- The trial court admitted the documents under Evid.R. 803(6) (business records) and granted summary judgment and a decree of foreclosure to Central Mortgage.
- On appeal, Bonner conceded in admissions and briefing several key facts (she borrowed from Vandyk, Vandyk transferred its interest, Central Mortgage possessed the note, and she was in default).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility under Evid.R. 803(6) | Davis’s affidavit establishes custodian status, regular course of business, contemporaneous entries, and reliance — so records are admissible | Records are hearsay; Davis’s employer (Central) did not create them and she lacks knowledge of their trustworthiness/authentication | Records admissible: affidavit showed custody, regular maintenance, contemporaneous entry, and reliance; circumstances showed trustworthiness |
| Authentication under Evid.R. 901 | Davis authenticated copies as true and accurate and as a custodian-qualified witness | Davis lacks personal knowledge of original preparation; cannot authenticate records made by another entity | Authentication sufficient under Evid.R. 901(B)(10) tied to business-record foundation; witness need not be maker |
| Sufficiency of evidence for summary judgment (foreclosure prerequisites) | Attached documents + Davis affidavit + admissions prove note, mortgage, recording, possession, default, and amount owed | Without admissible records summary judgment is improper | Summary judgment affirmed: undisputed evidence establishes foreclosure elements and amount owed |
| Trustworthiness when records are not maker’s | Central relied on and incorporated the documents into its business files; Davis explained processes showing trustworthiness | Non-certification by originator undermines trustworthiness | Trustworthiness found by looking at total circumstances (reliance, incorporation, regular maintenance) |
Key Cases Cited
- Dresher v. Burt, 75 Ohio St.3d 280 (sets summary judgment burden allocation)
- State v. Davis, 116 Ohio St.3d 404 (elements of business-records exception)
- Great Seneca Fin. v. Felty, 170 Ohio App.3d 737 (business records created by another entity admissible when incorporated and relied upon)
- BAC Home Loans Servicing, L.P. v. Kolenich, 194 Ohio App.3d 777 (elements plaintiff must prove to foreclose)
- Burgess v. Tackas, 125 Ohio App.3d 294 (de novo review standard for summary judgment cited)
- Brawner v. Allstate Indem. Co., 591 F.3d 984 (federal precedent permitting admission of records not made by custodian when trustworthy)