2015 Ohio 273
Ohio Ct. App.2015Background
- In 2005 Braunskill bought a house and executed a promissory note (originally $149,600, later modified) secured by a mortgage naming MERS as nominee for the lender.
- Braunskill defaulted in January 2011; Wells Fargo accelerated the loan and filed a foreclosure complaint on August 24, 2011. The recorded assignment of the mortgage to Wells Fargo occurred August 16, 2011 (recorded August 24, 2011) and was attached to the complaint.
- The copy of the note attached to the complaint lacked endorsements; a later affidavit by Wells Fargo’s servicer included a copy of the note showing endorsements (including an endorsement in blank).
- Braunskill initially failed to answer, the case proceeded, she later filed a general-denial answer and opposed summary judgment with three main challenges: (1) standing (possession/endorsement of the note), (2) failure to comply with mortgage condition precedent (acceleration notice), and (3) the servicer-affiant’s lack of personal knowledge and absence of a payment history attachment.
- The magistrate granted Wells Fargo summary judgment; the trial court adopted the decision and entered final decree of foreclosure. Braunskill appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue (possession/endorsement of the note) | Wells Fargo: attached properly assigned mortgage (assigned before filing) and later authenticated note with endorsements; mortgage and note together show interest | Braunskill: note attached to complaint lacked endorsement, so Wells Fargo lacked standing at commencement | Court: assignment of mortgage pre-filing plus mortgage-note cross-references sufficed under Sherman-type precedent; no genuine issue of material fact — standing established |
| Compliance with conditions precedent (acceleration notice) | Wells Fargo: complaint alleged compliance and Braunskill’s answer failed to deny performance with required specificity under Civ.R. 9(C) | Braunskill: she did not recall receiving acceleration letter and disputed service | Court: Braunskill’s failure to specifically deny performance amounted to an admission under Civ.R. 9(C); no fact issue on notice |
| Servicer-affiant’s personal knowledge (Johnston affidavit) | Wells Fargo: affiant was Ocwen default specialist with access to servicing records; affidavit and attached authenticated documents establish personal knowledge | Braunskill: affidavit did not explain discrepancy between unendorsed note in complaint and endorsed note attached to affidavit; affiant lacked firsthand knowledge | Court: affiant’s role and description of record review gave a reasonable inference of personal knowledge; Braunskill failed to submit contrary affidavit; affidavit admissible for summary-judgment purposes |
| Default/payment-history proof (lack of attached payment history) | Wells Fargo: affiant averred default based on loan history review; amount due shown in affidavit and exhibits | Braunskill: absence of payment history exhibit left factual dispute on default/amount | Court: issue waived for failure to raise earlier; moreover, affiant’s averment and exhibits sufficed absent opposing evidence |
Key Cases Cited
- Comer v. Risko, 833 N.E.2d 712 (Ohio 2005) (standard of review for summary judgment)
- Temple v. Wean United, Inc., 364 N.E.2d 267 (Ohio 1977) (summary judgment test)
- Dresher v. Burt, 662 N.E.2d 264 (Ohio 1996) (movant and nonmovant burdens in Civ.R. 56 practice)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (materiality and summary-judgment standards)
- Fed. Home Mtge. Corp. v. Schwartzwald, 979 N.E.2d 1214 (Ohio 2012) (standing is assessed at commencement of suit)
- Bonacorsi v. Wheeling & Lake Erie Ry. Co., 767 N.E.2d 707 (Ohio 2002) (affidavit personal-knowledge requirement)
- State ex rel. Corrigan v. Seminatore, 423 N.E.2d 105 (Ohio 1981) (when an affidavit's asserted personal knowledge suffices; opposing-affidavit requirement)