Fannie Mae v. Bilyk
2015 Ohio 5544
Ohio Ct. App.2015Background
- In 2005 Bilyk executed a promissory note and mortgage, later modified; he defaulted and Fannie Mae filed foreclosure in 2013 seeking roughly $94,000 plus costs.
- Fannie Mae moved for summary judgment and attached an affidavit from Nathan Albein, a Seterus, Inc. foreclosure specialist and Fannie Mae's loan subservicer.
- Albein averred he had personal knowledge of the loan account, reviewed business records (note, mortgage, assignments, payment ledger, demand letter, etc.), and stated amounts due and default/acceleration.
- Bilyk opposed summary judgment and asserted he would move to strike Albein’s affidavit for lack of personal knowledge, hearsay, and improper authentication, but never filed the motion to strike.
- The trial court granted summary judgment for Fannie Mae; Bilyk appealed solely arguing the court erred by relying on Albein’s affidavit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the servicer-affiant had requisite personal knowledge under Civ.R.56(E) | Albein, as servicer employee, had personal knowledge of the loan account and how records are kept; his affidavit satisfied Civ.R.56(E) | Albein lacked firsthand knowledge of origination/creation of documents and thus could not attest personally | Court held Albein had sufficient personal knowledge as a loan-servicing agent to satisfy Civ.R.56(E) |
| Whether Albein’s statements and attached records were inadmissible hearsay | Records and affidavit fall within the business‑records exception (Evid.R.803(6)); Albein was a qualified witness to authenticate duplicates | Albein’s testimony about records created by other entities is hearsay and not admissible foundation | Court held the business‑records exception and authentication principles rendered the materials admissible |
| Whether Albein properly authenticated electronic duplicates under Evid.R.901/1003 | Albein averred attached copies were true duplicates and a qualified custodian’s testimony can authenticate business records | Albein was too remote to authenticate records created before Seterus became servicer | Court held Albein’s averments and case law permit a servicing agent to authenticate and admit duplicates absent genuine authenticity challenge |
| Whether admitting these records was an abuse of discretion | Plaintiff relied on settled appellate precedent admitting servicer affidavits to support foreclosure summary judgment | Defendant argued insufficiency of foundation/trustworthiness of records | Court held no abuse: servicer affidavit and records provided adequate foundation for summary judgment in foreclosure |
Key Cases Cited
- Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54 (appellate review of summary judgment is de novo)
- Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158 (summary judgment standard)
- Dresher v. Burt, 75 Ohio St.3d 280 (party moving for summary judgment bears initial evidentiary burden)
- Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314 (definition of personal knowledge)
- State v. Davis, 116 Ohio St.3d 404 (requirements for business‑records exception under Evid.R.803(6))
- State v. Tibbetts, 92 Ohio St.3d 146 (admissibility of duplicates under Evid.R.1003)
- State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459 (verification of documents by affidavit may satisfy foundation)