BANK OF AMERICA, N.A. SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, L.P., f.k.а. COUNTRYWIDE HOME LOANS SERVICING, L.P. v. SYLVIA P. MERLO, et al.
CASE NO. 2012-T-0103
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
November 25, 2013
[Cite as Bank of Am. v. Merlo, 2013-Ohio-5266.]
CYNTHIA WESTCOTT RICE, J.
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2011 CV 01793. Judgment: Affirmed.
Philip Zuzolo and Patrick B. Duricy, Zuzolo Law Office, LLC, 700 Youngstown Warren Road, Niles, OH 44446 (For Defendant-Appellant).
O P I N I O N
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Sylvia P. Merlo, appeals the summary judgment and foreclosure decree entered against her by the Trumbull County Court of Common Pleas. At issue is whether thе trial court erred in finding that no genuine issue of material fact existed concerning whether appellee, Bank of America, N.A. Successor by
{¶2} Appellant acquired title to the subject residential real property in 1994. Fifteen years later, on May 18, 2009, she obtainеd a mortgage loan on the property from BAC in the amount of $170,500, in exchange for which she signed a promissory note in that amount and a mortgage deed securing that amount in favor of BAC.
{¶3} Appellant made payments for just one and one-half years and then defaulted on the note by failing to make her payment due on February 1, 2011, or any subsequent installments. On or about March 21, 2011, BAC gave appellant notice of her default and an opportunity to cure it, but she never cured the default.
{¶4} On August 10, 2011, BAC filed this foreclosure action. BAC attached to the complaint copies of the note and mortgage. Appellant filed an answer denying the material allegations of the complaint and asserting various affirmative defenses, including BAC‘s alleged lack of standing.
{¶5} After the parties engaged in discovеry, BAC filed a motion for summary judgment against appellant supported by the affidavit of its Vice-President, Stacie Marie Pordash. Appellant filed a brief in opposition. In her brief, appellant did not dispute that she signed the subject note and mortgage; that she defaulted in February 2011; that she failed to cure her default; or that she owes the amount set forth in Ms. Pordash‘s affidavit. Instead, appellant arguеd that BAC lacked standing to prosecute this action and that Ms. Pordash‘s affidavit did not satisfy the requirements of
{¶6} Subsequently, the trial court entered summary judgment and a foreclosure decree in favor of BAC. Appellant appeals the trial court‘s judgment, asserting the following for her sole assignment of error:
{¶7} “The trial court erred in granting summary judgment to Plaintiff Bank of America N.A. on the two counts of its complaint when the Plaintiff/Appellee did not have standing to file the complaint and the affidavit and allegations contained therein do not support a grant of summary judgment.”
{¶8} Appellant argues that BAC was not entitled to summary judgment because a genuine issue remains concerning whether BAC had standing to file this action. In Ohio, courts of common pleas have subject matter jurisdiction over justiciable matters.
{¶9} Whether standing exists is a matter of law that is reviewed de novo. Cuyahoga Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-6499, ¶23.
{¶10} In the context of a mortgage foreclosure action, the mortgage lender must establish an interest in the mortgage or promissory note in order to have standing to invoke the jurisdiction of the common pleas court. Fed. Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶28. This court followed Schwartzwald in Fed. Home Loan Mortg. Corp. v. Rufo, 11th Dist. Ashtabula No. 2012-A-0011, 2012-Ohio-5930, ¶18. The Eighth District in CitiMortgage, Inc. v. Patterson, 8th Dist. Cuyahoga No. 98360, 2012-Ohio-5894, held that Schwartzwald stands for the proposition that a party may establish its interest in the suit, and therefore have standing when, at the time it files its complaint, it either (1) holds the mortgage or (2) is the holder
{¶11} Appellant does not dispute that the note and mortgage attached to the complaint show BAC held both instruments when it filed this action, thus complying with Schwartzwald. Instead, she argues that BAC failed to meet certain other standards, which, she contends, are also required by that case.
{¶12} First, appellant argues that in order to have standing, BAC was required to present evidence showing it had an interest in both the note and mortgage on the date it filed the complaint. However, this argument ignores the holding of Schwartzwald that the mortgagee is only required to establish an interest in either the mortgage or the note in order to have standing. In any event, as discussed below, there is no genuine issue that BAC held an interest in both instruments when it filed the complaint.
{¶13} Next, appellant argues that, although the note indicates it is made payable to BAC, thus making BAC its holder, BAC included an endorsement in blank on the note and such endorsement suggests it transferred possession of the note to a third party. However, appellant cites no case law in support of this argument, which, in any event, is nothing more than speculation. “When an instrument is endorsed in blank, [i.e., it does not identify the payee,] the instrument becomes payable to bearer and may be negotiated by transfer of possession alone * * *.” (Emphasis added.)
{¶14} However, while the note includes a blank endorsement, the endorsement merely allows BAC to negotiate the instrument if it later chose to do so. The endorsement itself is no evidence that BAC ever transferred possession of the note. To the contrary, the complaint alleges that BAC presently holds the note. In support of this allegation, Ms. Pordash stated in her affidavit that BAC “has possеssion of the note.” Further, appellant does not reference any competent evidence that BAC ever transferred possession of the note to a third party. Moreover, appellant cites no authority to support her argument that the mere presence of an endorsement in blank on the note “creates a genuine dispute” regarding BAC‘s standing.
{¶15} Next, appellant argues that, because BAC stated in response to her interrogatories that “Fannie Mae is the owner of the Note,” this suggests that BAC is no longer the holder of the note. However, this argument is defeated by the express language of
{¶16} Next, appellant argues that, because a two-page excerpt from Fannie Mae‘s general guidelines, taken from its website, suggests that Fannie Mae generally owns and holds its mortgage notes, this somehow proves BAC does not hold the subject note. However, the record does not indicate when the loan was sold to Fannie Mae. Thus, BAC may have still owned the note when it filed the complaint. Further, the guidelines are dated March 14, 2012, and there is no evidence thаt they were in effect in August 2011, when the complaint in this matter was filed. In addition, these general guidelines do not create a genuine issue of material fact because there is no evidence they apply to the facts before us. Contrary to appellant‘s argument, there is no evidence that Fannie Mae has possession of or is the holder of the note.
{¶17} Since the note attached to the complaint shows that BAC was its holder when the complaint was filed, in order for appellant to create a genuine issue regarding standing, she would have been required to produce competent testimony that Fannie Mae was in possession of the subject note when the complaint was filed. Appellant has failed to submit such evidence and thus has failed to meet her reciprocal burden to oppose summary judgment. In fact, appellant states she did not offer Fannie Mae‘s guidelines as evidence to create a genuine issue regarding BAC‘s standing, but, rather for “impeachment” purposes only. However, impeachment concerns witness credibility,
{¶18} Next, appellant argues that in order for BAC to demonstrate it held the note, pursuant to Schwartzwald, Ms. Pordash was required tо expressly state in her affidavit that BAC was in possession of the original note on the date BAC filed the complaint. However, Ms. Pordash stated in her affidavit that BAC “has possession of the note.” Since she did not qualify her testimony by saying the bank has possession of a copy of the note, she was referring to the actual note itself, i.e., the original, rather than a copy. “An ‘original’ of a writing * * * is the writing * * * itself,” as oрposed to a ‘duplicate,’ which “reproduce[s] the original.” {¶19} To the contrary, {¶20} Appellant has not raised a genuine issue concerning the authenticity of the note and mortgage attached to Ms. Pordash‘s affidavit or made a showing that in the circumstances presented here, it would be unfair to admit copies in lieu of the originals. {¶21} Moreover, there is no requirement in {¶22} In any еvent, if appellant wanted to inspect the original instruments, she was required to issue a request for production pursuant to {¶23} We therefore hold that, at the time BAC filed the complaint, it was and, according to the undisputed evidence before us, remains the holder of the note. For this reason alone, there is no genuine issue regarding BAC‘s standing. {¶24} Next, appellant argues that Ms. Pordash‘s affidavit did not comply with {¶25} “[The] mere assertion of personal knowledge satisfies the personal knowledge requirement of {¶26} Further, it is well settled that personal knowledge may be inferred from the contents of an affidavit. Bush v. Dictaphone Corp., 10th Dist. Franklin No. 00AP1117, 2003-Ohio-883, ¶73. Further, it has been held that an officer of the lender could authenticate copies of the loan documents in her affidavit in support of summary judgment based on her review of the lender‘s loan documents. Bank of New York v. Dobbs, 5th Dist. Knox No. 2009-CA-000002, 2009-Ohio-4742, ¶40. In holding the officer‘s affidavit authenticated the documents, the Fifth District in Dobbs stressed that the officer had access to the original documents to review them and that the debtor did not come forward with any evidence indicating the documents were inaccurate. Id. {¶27} Further, it is not necessary that the witness authenticating a business record have firsthand knowledge of the transaction giving rise to the record. State v. Wagner, 8th Dist. Cuyahoga No. 93432, 2010-Ohio-2221, ¶25. To the contrary, it is only required that the witness be sufficiently familiar with the operation of the business and {¶28} Further, {¶29} {¶30} Appellant argues that Ms. Pordash lacked personal knowledge to authenticate the loan documents because her knowledge was based solely on her position as a bank officer without any explanation as to how her position allowed her to testify regarding the records. However, Ms. Pordash stated in her affidavit that she is a vice-president of BAC, and that, as such, she is authorized to execute her affidavit. She said that as part of her job, she is familiar with the type of records mаintained by BAC in connection with the instant loan. She said she made her affidavit based on her personal knowledge as to how BAC‘s business records are created and maintained and {¶31} Ms. Pordash further stated that, based on her review of the subject documents, appellant defaulted on the note by failing to make payments due for February 1, 2011, or any subsequent installments; the debt has been accelerated; the principal balance due on the loan is $166,367.73 plus interest; and BAC is in possession of the note. The foregoing information was sufficient to demonstrate Ms. Pordash‘s рersonal knowledge of the instant account. {¶32} Finally, appellant has not presented any evidence indicating that any of the documents attached to Ms. Pordash‘s affidavit was inaccurate in any way. We thus hold that her affidavit authenticated the subject documents. {¶33} While appellant‘s argument centers on the promissory note, as discussed above, the Supreme Court of Ohio in Schwartzwald held that stаnding can be established by a showing that the mortgage lender had an interest in the note or in the mortgage when the complaint was filed. Here, in addition to the note, BAC attached to its complaint a copy of the mortgage signed by appellant. Appellant does not dispute that she signed the mortgage in favor of BAC; that BAC remains the mortgagee of record; and that BAC never assigned the mortgаge to any third party. Further, Ms. {¶34} We therefore hold the trial court did not err in entering summary judgment in favor of BAC. {¶35} For the reasons stated in this opinion, appellant‘s assignment of error is overruled. It is the judgment and order of this court that the judgment of the Trumbull County Court of Common Pleas is affirmed. TIMOTHY P. CANNON, P.J., concurs, COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion. BANK OF AMERICA, N.A. SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, L.P., f.k.a. COUNTRYWIDE HOME LOANS SERVICING, L.P. v. SYLVIA P. MERLO, et al. CASE NO. 2012-T-0103 IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO November 25, 2013 {¶36} Finding that appellant has raised a genuine issue of material fact as to whether BAC had pоssession of the note – and thus, standing to institute this action – at the time it filed the complaint, I would reverse and remand. {¶37} It appears that Fannie Mae is the actual owner of the note. Appellant submitted certain regulations from Fannie Mae, downloaded from its website. Information from government websites is self-authenticating, provided the webpage, in fact, exists at a government website. Residential Funding Co., LLC v. Thorne, 6th Dist. Lucas No. L-11-1131, 2012-Ohio-2552, ¶29. The regulations submitted include {¶38} I respectfully dissent.