2016 Ohio 1011
Ohio Ct. App.2016Background
- Green Tree Servicing filed for foreclosure against Russell Luce based on a 2001 promissory note and mortgage securing 366 S. Ridge Rd., Conneaut, OH.
- Green Tree moved for summary judgment supported by an affidavit of its foreclosure specialist, Tonya M. Green, and attached copies of the note, mortgage, a notice of default, and an assignment of mortgage.
- Green’s affidavit stated the note was executed in favor of “America’s Wholesale Lender,” that Countrywide indorsed the note using a fictitious name, that Green Tree is the assignee/holder, and that a default notice was “sent” June 21, 2013.
- Luce opposed summary judgment, challenging (1) sufficiency of proof that the required pre-acceleration notice was given, (2) Green Tree’s status as holder/person entitled to enforce the note (arguing endorsement/special endorsement issues), and (3) admissibility/authentication of the attached copies and adequacy of the affidavit’s personal-knowledge foundation.
- Trial court granted summary judgment and entered a foreclosure decree; the appellate court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of notice before acceleration | Green Tree: affidavit states default notice was "sent" and a copy was attached; compliance with Note/Mortgage notice provisions | Luce: affidavit only says "sent"—doesn’t state how it was sent or that it was delivered | Court: "sent" averment plus copy (and no contradictory evidence) satisfied notice requirement under precedents |
| Whether Green Tree is a person entitled to enforce the note | Green Tree: note bears a blank indorsement by Countrywide doing business as America’s Wholesale Lender; mortgage assignment to Green Tree; Green Tree in possession of loan file | Luce: indorsement by entity doing business under another name is insufficient; payee not specially endorsed | Court: blank indorsement converted note to bearer paper; Countrywide’s fictitious-name indorsement acceptable; assignment of mortgage establishes Green Tree’s right to foreclose |
| Affidavit personal knowledge and competency under Civ.R. 56(E) | Green Tree: affiant stated she is a foreclosure specialist and reviewed the loan file; assertion of personal knowledge is sufficient | Luce: affidavit lacks description of duties and how affiant obtained knowledge | Court: sworn assertion of personal knowledge plus job role and file review satisfied Civ.R. 56(E) absent contrary evidence |
| Authentication of attached note and mortgage copies | Green Tree: attached copies to affidavit | Luce: copies are unsworn, uncertified, not averred to be true copies—thus inadmissible | Court: copies were not sworn/certified/authenticated and therefore could not be considered for summary judgment; trial court erred in relying on them |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 671 N.E.2d 241 (Ohio 1996) (standards and de novo review for summary judgment)
- Bank of Am., N.A. v. Curtin, 24 N.E.3d 1217 (Ohio Ct. App.) (unsworn assertion that notice was sent can satisfy contractual notice requirement absent contradictory evidence)
- N.Y. Life Ins. & Annuity v. Vengal, 23 N.E.3d 180 (Ohio Ct. App.) (affidavit statement that notice was sent sufficient to establish mailing for foreclosure notice purposes)
- State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 423 N.E.2d 105 (Ohio 1981) (a statement that an affidavit is made on personal knowledge satisfies Civ.R. 56[E] unless contradicted)