BANK OF AMERICA, N.A. v. LORNA C. PATE, ET AL.
No. 100157
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 20, 2014
2014-Ohio-1078
EILEEN A. GALLAGHER, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-12-788249
JUDGMENT: REVERSED AND REMANDED
BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Keough, J.
RELEASED AND JOURNALIZED: March 20, 2014
Mark E. Owens
Ronald L. Cappellazzo
J.P. Amourgis & Associates
3200 West Market Street, Suite 106
Akron, OH 44333
ATTORNEYS FOR APPELLEE
James L. Sassano
Richard J. Feuerman
Carlisle, McNellie, Rini, Kramer, & Ulrich Co., L.P.A.
24755 Chagrin Boulevard, Suite 200
Cleveland, OH 44122
Michael B. Hurley
John R. Wirthlin
Blank Rome, L.L.P.
1700 PNC Center
201 East Fifth Street
Cincinnati, OH 45202
For The Ohio Department of Taxation
Joseph T. Chapman
Collections Enforcement
150 East Gay Street, 21st Floor
Columbus, OH 43215
{¶1} Defendant-appellant, Lorna Pate, appeals from the trial court‘s decision granting summary judgment to plaintiff-appellee, Bank of America, N.A. For the following reasons, we reverse.
{¶2} In July 2003, Pate executed a note, secured by a mortgage, in the amount of $112,251. In August 2012, Bank of America filed a complaint for foreclosure against Pate, alleging that it was the holder of the mortgage deed and that the conditions of the mortgage had been broken by reason of default in payment by Pate and that Pate owed $100,249.47, plus interest at the rate of 6.125 percent per annum from June 1, 2010. The complaint alleged that Bank of America had performed all the conditions precedent required to be performed by it under the note and mortgage. Pate answered, denying that the conditions of the mortgage deed had been broken and generally denying, for lack of information and knowledge, that Bank of America had performed all the required conditions precedent, but she did provide that:
Plaintiff failed to give the proper and requisite notices to the Defendant pursuant to RESPA, the terms of the Note and Mortgage, or pursuant to federal regulations governing FHA mortgages.
{¶3} Bank of America moved for summary judgment, attaching an affidavit in support, as well as copies of the note, mortgage, a description of the property, and a document assigning the mortgage to Bank of America. Pate opposed summary judgment, arguing that Bank of America failed to properly support its documentary evidence with an authenticated affidavit and offered her own affidavit asserting that Bank
{¶4} The trial court granted summary judgment in favor of Bank of America and Pate appeals.
{¶5} Pate‘s first assignment of error states:
The trial court erred when it granted summary judgment to the plaintiff BOA, as there was a genuine issue of material fact as to whether the plaintiff provided the proper notices of default and for a face-to-face meeting prior to acceleration, as required under the mortgage and applicable federal law.
{¶6} To properly support a motion for summary judgment in a foreclosure action, a plaintiff must present “evidentiary-quality materials” establishing: (1) that the plaintiff is the holder of the note and mortgage or is a party entitled to enforce the instrument; (2) if the plaintiff is not the original mortgagee, the chain of assignments and transfers; (3) that the mortgagor is in default; (4) that all conditions precedent have been met and (5) the amount of principal and interest due. HSBC Bank USA, N.A. v. Surrarrer, 8th Dist. Cuyahoga No. 100039, 2013-Ohio-5594, ¶ 16, citing United States Bank, N.A. v. Adams, 6th Dist. Erie No. E-11-070, 2012-Ohio-6253, ¶ 10.
{¶7} Pate argues that a genuine issue of material fact exists regarding whether she received proper notice of default pursuant to the terms of the note and mortgage. Bank of America does not dispute the notices due Pate as conditions precedent to pursuing this foreclosure action, but instead argues that Pate has failed to properly preserve this issue by failing to comply with
[I]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.
{¶9} Bank of America did assert in its complaint that all conditions precedent had been performed. In order to refute Bank of America‘s allegation and put conditions precedent at issue, Pate was required to deny performance of the conditions “specifically and with particularity.” LSF6 Mercury REO Invests. Trust Series 2008-1 v. Locke, 10th Dist. Franklin No. 11AP-757, 2012-Ohio-4499, ¶ 11. A general denial of performance of conditions precedent is not sufficient to place performance of a condition precedent in issue. The effect of the failure to deny conditions precedent in the manner provided by
{¶10} We find that Pate‘s answer, quoted above, provided sufficient specificity and particularity to comply with
{¶11} Pate‘s first assignment of error is sustained.
{¶12} Pate‘s second assignment of error states:
The trial court erred when it granted summary judgment to the plaintiff BOA, as there were genuine issues of material fact remaining and the plaintiff was not entitled to summary judgment as a matter of law.
{¶13} Pate argues that the affidavit of Steven King, attached in support of Bank of America‘s motion for summary judgment, lacked the requisite personal knowledge for the trial court to rely upon it.
{¶14}
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.
Unless controverted by other evidence, a specific averment that an affidavit pertaining to business is made upon personal knowledge of the affiant satisfies the
Civ.R. 56(E) requirement that affidavits both in support or in opposition to motions for summary judgment show that the affiant is competent to testify to the matters stated.
{¶15} Pate argues that without the records attached to Bank of America‘s motion for summary judgment and supported by King‘s affidavit, the bank has failed to provide evidence to rebut her averments that she did not receive proper notice. This argument is without merit because none of the documentary evidence presented by Bank of America pertains to the required notices and, furthermore, Pate‘s notice argument has been rendered moot by our disposition of her first assignment of error.
{¶16} Next, Pate argues that King‘s affidavit failed to state in sufficient detail the basis for his personal knowledge. We find that the affidavit was sufficiently based on personal knowledge for
{¶17} Pate‘s second assignment of error is overruled.
{¶18} This cause is reversed and remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee her costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
FRANK D. CELEBREZZE, JR., P.J., CONCURS IN JUDGMENT ONLY