Bank One v. SwartzBank One v. Swartz
{¶ 3} On October 13, 1997, Appellants executed a second mortgage with Bank One for $43,575. While Appellants remained current on their payments to First Federal, Appellants filed bankruptсy, discharging their personal obligation to repay Bank One. Bank One filed an action to foreclose; First Federal followed suit.
{¶ 4} In its complaint, Bank One alleged that the amount owed was $38,826.59, plus interest at the rate of 12.25 percent per annum. There is attached to the complaint a coрy of the mortgage note to Bank One, a Preliminary Judicial Report from a title company, and a copy of the docket from the bankruptcy proceeding. Appellants denied the amount owed in their answer to the complaint, raising as a defense the discharge in bankruptcy.
{¶ 5} First Federal, in its cross-claim, alleged that the amount unpaid on its note was $68,661.30 with interest at the rate of 6.25 percent per annum, that the amount was secured by a mortgage deed for the house, and that a condition of the mortgage deed required Appellants to "not permit any lien to be enforced against [the] real estate, and if they do the entire principal and interest is due and owing." First Federal's complaint then states that Appellants failed to pay the note according to the conditions and permitted a lien to be enforced upon the real estate. Attached to First Federal's cоmplaint is a copy of the mortgage note and the mortgage deed. In their answer, Appellants admitted the amount owed and that the note required acceleration if they allowed a lien to be enforced against the property; however, Appellants denied that they allowed а lien to be enforced.
{¶ 6} Both mortgagees filed a motion for summary judgment. Bank One's motion contained an affidavit swearing that the loan file was under the immediate control and supervision of the affiant, "that the copies of the Note and Mortgage attached hereto to [the] Complaint arе accurate copies of the original instruments," and that the outstanding balance was $38,826.59 plus interest at 12.25 percent per annum. In response, Appellants claimed that the mortgage was executed defectively and was, therefore, invalid. Appellants also argued that Bank One failed to comply with
{¶ 7} First Federal's motion for summary judgment claimed that it was required only to show the breach of the note and the balance due; First Federal attached an affidavit which purportedly satisfied that requirement. The affiant swore that Appellants permitted a lien to be enforced against the real estate in breach of the mortgage note and, therefore, the entire principle was due including interest and costs. The affiant also stated that the amount due was $68,661.30 plus interest at the rate of 6.25 percent per annum. In reply, Appellants argued that they denied the amount owed in their answer to First Federal's cross-claim, they were current on their payments to First Federal, and there was nothing other than the affidavit to indicate the amount due. Appellants also argued, as with Bank One, that the affidavit dоes not meet the requirements of
{¶ 8} The trial court granted both motions and ordered the sale of the house. Appellants appealed, raising two assignments of error. At oral argument, Appellants withdrew their second assignment of error;1 thеrefore, we address only the remaining assignment of error.
{¶ 9} Appellants arguе that Bank One and First Federal failed to meet their burden in their motions for summary judgment in that they did not include evidence satisfactory to
{¶ 10} We begin by noting that an appellate court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co.
(1996),
{¶ 11} Pursuant to Civil Rule 56(C), summary judgment is proper if:
"(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it aрpears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977),
To prevail on a motion for summary judgment, the party moving for summаry judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt (1996),
{¶ 12} The Ohio Supreme Court has explained the summary judgment burden as follows:
"[T]he movant must be able to point to evidentiary materials of the type listed in
{¶ 13} Only after the movant satisfies the initial Dresher burden, must the nonmoving рarty then present evidence that some issue of material fact remains for the trial court to resolve. Id. at 294.
{¶ 14} We first address Appellant's arguments regarding Bank One's motion for summary judgment. Unless controverted by other evidence, a specific averment that an affidavit pertaining to business is made upon personal knowledge of the affiant satisfies the
"However, where the nature of the facts contained within the affidavit, together with the identity of the affiant, creates a reasonable inference that the affiant has personal knowledge of the facts contained therein, [then] the affiant's simple averment that he has knowledge of the facts contained within the affidavit, while less than ideal, satisfies the requiremеnt of
{¶ 15} In the absence of a specific statement of personal knowledge, personal knowledge may be inferred from the contents of an affidavit. Bendele v. Geise, 3rd Dist. No. 12-02-05,
{¶ 16} The affidavit attached to Bank One's motion for summary judgment stated that the affiant was a foreclosure specialist of Bank One, that the loаn file was under her immediate control and supervision, that the note and mortgage attached to the complaint are accurate copies of the original instruments, that the account was and remains in default and therefore, Bank One has exercised the option to accelerate the loan, and that the outstanding balance was $38,826.59 plus interest. This is an averment made upon personal knowledge of the affiant and it references the documents filed with the complaint. Therefore, the affidavit is sufficient to satisfy
{¶ 17} Regarding First Federаl's motion for summary judgment, Appellants argue that the amount owed is a question of fact; however, First Federal specified an amount due in their cross-complaint and Appellants admitted to the amount in their answer. Appellants' argument that they are entitled to credit for payments made in the interim wаs not raised to the trial court. It is a well established rule that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called, but did not call, to the attention of the trial court at the time when such error could have been avoided or corrected by the trial court. Statev. Glaros (1960),
{¶ 18} Appellant argues, as with Bank One, that the affidavit attached to First Federal's motion for summary judgment is inadequate to satisfy
{¶ 19} Appellants' assignment of error is overruled.
Judgment affirmed.
Carr, P.J., and Batchelder, J., concur.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State оf Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
Exceptions.