PNC Bank, N.A. v. Price
2016 Ohio 2887
Ohio Ct. App.2016Background
- Mark H. Price, Jr. and Alberta Price opened a $50,000 Equity Reserve Line of Credit (loan and mortgage) with National City Bank in 2002; mortgage recorded on April 11, 2002.
- National City merged into PNC; PNC brought a foreclosure action in 2013 alleging default after missed payments beginning April 30, 2012 and seeking $49,783.53 plus interest.
- A default judgment was initially entered, later vacated after Price moved to set it aside; Price filed an answer asserting lack of standing and breach (failure to refinance/extend).
- PNC moved for summary judgment supported by the affidavit of Marika Dienes (PNC loan support analyst) attesting to PNC’s status as holder, the merger history, the account balance, and payment delinquencies; Price opposed and sought to strike the affidavit and later submitted a separate affidavit and recorded phone-transcript exhibits which the court struck as untimely.
- Trial court struck Price’s supplement, denied his motion to strike Dienes’ affidavit, granted PNC’s summary judgment motion, and entered a decree of foreclosure; Price appealed.
Issues
| Issue | Plaintiff's Argument (PNC) | Defendant's Argument (Price) | Held |
|---|---|---|---|
| Admissibility/authentication of bank affidavit and business records | Dienes is a qualified custodian/analyst whose affidavit and stored duplicates authenticate records under Evid.R. 803(6), 901, and 1003 | Dienes lacked personal knowledge to authenticate records; affidavit is hearsay and insufficient | Court: Dienes’ role and averments permit inference of personal knowledge; business‑records exception and authentication satisfied; affidavit admissible |
| Standing/entitlement to summary judgment in foreclosure | PNC is holder and real party in interest by merger and Dienes’ affidavit establishes default, amount due, and right to enforce note/mortgage | PNC failed to present payment history or chain documentation to prove default and amount | Court: PNC met Jackson criteria via affidavit; merger law establishes standing; no payment history required if affidavit establishes indebtedness; summary judgment proper |
| Novation (affirmative defense) | N/A (PNC: original obligations remain; no evidence of new contract) | Price asserts PNC offered and he accepted new loan terms (novation) and sent payments | Court: Novation not pleaded as affirmative defense (waived). Even on the merits, Price failed to show mutual consent by all parties or consideration; no genuine factual dispute |
| Procedural exclusion of Price’s supplemental affidavit/transcripts | PNC: Price’s March 2015 affidavit and transcripts were untimely and irrelevant; court should strike | Price: Recorded conversations and affidavit show negotiation/new terms and create fact issues | Court: Trial court properly struck the late submission as out of rule; evidence excluded |
Key Cases Cited
- Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427 (Ohio 1981) (summary judgment standard; construing evidence most strongly for nonmoving party)
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (Ohio 1987) (appellate review of summary judgment is de novo)
- Home Loan Mtge. Corp. v. Schwartzwald, 979 N.E.2d 1214 (Ohio 2012) (plaintiff must have interest in note/mortgage at time suit filed to have standing)
- State ex rel. Corrigan v. Seminatore, 423 N.E.2d 105 (Ohio 1981) (copies/verification in affidavits may satisfy authentication for summary judgment)
- Acordia of Ohio, L.L.C. v. Fishel, 978 N.E.2d 823 (Ohio 2012) (effect of corporate merger on successor’s rights)
- Jim’s Steakhouse, Inc. v. Cleveland, 688 N.E.2d 506 (Ohio 1998) (waiver of affirmative defenses not raised in pleadings)
Outcome: Trial court judgment granting PNC’s summary judgment and decree of foreclosure affirmed.