2015 Ohio 5134
Ohio Ct. App.2015Background
- 2008 loan for a house in Shaker Heights; 2013 foreclosure action filed by Wells Fargo for nonpayment
- Wells Fargo moved for summary judgment; Sowells objected claiming lack of personal knowledge and missing conditions precedent
- Verheyen, Wells Fargo vice president of loan documentation, averred he had personal knowledge of Wells Fargo’s records and the note/mortgage
- Court found Verheyen’s affidavit sufficient to show personal knowledge and standing to foreclose
- Sowells challenged that the notice of default was sent by the servicer, not the lender, and argued a condition-precedent issue; court held servicer notice suffices under the mortgage terms
- Court affirmed summary judgment, holding all conditions precedent satisfied and notice properly provided
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Verheyen’s affidavit shows personal knowledge | Wells Fargo: Verheyen’s role and records establish personal knowledge | Sowell: affidavit lacks explicit basis for personal knowledge | Affirmed: Verheyen’s position supports personal knowledge |
| Whether notice of default satisfied conditions precedent | Wells Fargo: servicer notice on behalf of lender complies | Sowell: notice must come from lender | Affirmed: notice from servicer on lender’s behalf suffices |
Key Cases Cited
- Najar, Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657 (8th Dist. Cuyahoga 2013) (affidavits based on business records meet Civ.R. 56(E) when personal knowledge is stated)
- Wells Fargo Bank, N.A. v. Hammond, 8th Dist. Cuyahoga No. 100141, 2014-Ohio-5270 (8th Dist. Cuyahoga 2014) (no requirement to compare copies with originals in Civ.R. 56(E) when basis is clear)
- Nationstar Mtge., L.L.C. v. Wagener, 8th Dist. Cuyahoga No. 101280, 2015-Ohio-1289 (8th Dist. Cuyahoga 2015) (notice requirement is a condition precedent to foreclosure)
- HSBC Mortgage Serv., Inc. v. Edmon, 6th Dist. Erie No. E-11-046, 2012-Ohio-4990 (6th Dist. Erie 2012) (authenticity concerns of note not controlling where affiant asserts personal knowledge)
- Bank One, N.A. v. Swartz, 9th Dist. Lorain No. 03CA008308, 2004-Ohio-1986 (9th Dist. Lorain 2004) (affidavits based on personal knowledge satisfy Civ.R. 56(E))