Fifth Third Mtge. Co. v. Campbell
2013 Ohio 3032
Ohio Ct. App.2013Background
- Fifth Third Mortgage Company filed a foreclosure action against Campbell on February 3, 2012 in the Ohio Court of Common Pleas (Montgomery County).
- Fifth Third moved for summary judgment and submitted a note, a mortgage, and an affidavit in support.
- The affidavit asserts personal knowledge and that Fifth Third Bank, as servicer, maintains Mortgage Loan records and has examined the relevant business records.
- Exhibits A and B attached to the affidavit are the promissory note ($93,728.00) and the mortgage securing the note.
- Paragraphs 9 and 10 of the affidavit establish default and state the amount due ($92,997.10) plus interest and other charges; Campbell did not present counterevidence.
- The trial court granted summary judgment for Fifth Third; Campbell appealed and the appellate court affirm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the affidavit and attached documents were properly admissible in support of summary judgment. | Fifth Third maintains the affidavit satisfies Civ.R. 56(E) and the documents are admissible as business records. | Campbell contends the affidavit and documents are improper or insufficient to prove default or the amount due. | Affidavit and documents properly admitted; meet Civ.R. 56(E) and business-records exception. |
| Whether the promissory note and mortgage were properly authenticated and verified. | Notes and mortgage are verified and authenticated under Civ.R. 56(E) and Evid.R. 901; attached as business records. | Campbell disputes authentication/verification sufficiency. | Note and mortgage properly verified, authenticated, and admissible under the business-records exception. |
| Whether the affidavit establishes default and the amount due. | Paragraphs 9–10 show default and set forth principal and interest due. | No evidence from Campbell challenges the default or the amount. | Default and amount due established by the affidavit, note, and mortgage. |
| Whether summary judgment was proper based on the evidence presented. | With no genuine issue of material fact, Fifth Third is entitled to judgment as a matter of law. | Campbell argues there are factual disputes or insufficient evidence. | Summary judgment proper; Fifth Third entitled to foreclosure on the record. |
Key Cases Cited
- Wells Fargo Bank, N.A. v. Sessley, 188 Ohio App.3d 213 (Ohio App.3d 2010) (defaultable mortgage evidenced by affidavit supports judgment)
- Deutsche Bank Natl. Trust Co. v. Najar, 2013-Ohio-1657 (8th Dist. Cuyahoga 2013) (authentication and business-records foundation for mortgage documents)
- State v. Davis, 62 Ohio St.3d 326 (1991) (trustworthy business records foundation for admissibility)
- State v. Seminatore, 66 Ohio St.2d 459 (1973) (verifying copies and business-records attestation)
- State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459 (1973) (verification of copies attached to affidavits)