DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR AMERICAN HOME MORTGAGE ASSETS TRUST 2007-2, MORTGAGE-BACKED PASS-THROUGH CERTIFICATES SERIES 2007-2 v. JULIE A. AYERS, еt al.
CASE NO. 2019-P-0094
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
March 31, 2020
[Cite as Deutsche Bank Natl. Trust Co. v. Ayers, 2020-Ohio-1332.]
MARY JANE TRAPP, J.
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2017 CV 00225.
Judgment: Affirmed.
John R. Wirthlin and William L. Purtell, Blank Rome LLP, 1700 PNC Center, 201 East Fifth Street, Cincinnati, Ohio 45202, and Robert R. Hoose, The Law Offices of John D. Clunk Co., 4500 Courthouse Boulevard, Suite 400, Stow, Ohio 44224 (For Plaintiff-Appellee).
Grace M. Doberdruk, Law Office of Grace M. Doberdruk, 2000 Auburn Drive, One Chagrin Highlands, Suite 200, Beechwood, Ohio 44122 (For Defendants-Appellants).
MARY JANE TRAPP, J.
{¶1} Appellants, Julie Ayers (“Ms. Ayers“) and Richard Paton (“Mr. Paton“), appeal the judgment of the Portage County Court of Common Pleas granting summary judgment and issuing a decree of foreclosure to appellee, Deutsche Bank National Trust
{¶2} Ms. Ayers and Mr. Paton argue that the trial court erred by granting Deutsche Bank‘s motion for summary judgment because: (1) Deutsche Bank inappropriately attempted to introduce new evidence and argument in its reply brief; (2) the affidavit submitted with Deutsche Bank‘s motion for summary judgment was not made on personal knowledge and did not properly authenticate Ms. Ayers’ original note or her loan payment history; (3) genuine issues of material fact exist regarding whether Deutsche Bank had possession of Ms. Ayers’ original note when the complaint was filed and whether Deutsche Bank is the holder of the mortgage; and (4) Deutsche Bank did not comply with all conditions precedent to foreclosure. Ms. Ayers and Mr. Paton also argue that the trial court erred by granting Deutsche Bank‘s motion to dismiss their counterclaims.
{¶3} After a careful review of the record and pertinent law, we find the trial court properly granted summary judgment to Deutsсhe Bank because: (1) Deutsche Bank‘s reply brief did not introduce new evidence and argument in its reply brief. Even if it did, Ms. Ayers and Mr. Paton waived this argument by failing to seek leave to file a surreply or to move to strike the reply brief prior to the trial court‘s granting of summary judgment; and (2) Ms. Ayers and Mr. Paton have not raised genuine issues of material fact regarding the affiant‘s personal knowledge, authenticity of the note or loan payment history, or Deutsche Bank‘s possession of Ms. Ayers’ original note when the complaint was filed,
{¶4} Thus, we affirm the judgments of the Portage County Court of Common Pleas.
Substantive and Procedural History
The Note and Mortgage
{¶5} On December 26, 2006, Ms. Ayers signed a promissory notе in the principal amount of $1,481,000, plus interest, payable to American Brokers Conduit (“ABC“). The same day, Ms. Ayers granted a mortgage in the same amount to Mortgage Electronic Registration System (“MERS“), as nominee for ABC and its successors and assigns, on the real property located at 695 Club Drive, Aurora, Ohio. The mortgage was recorded on March 8, 2007 in Portage County. The note contains an undated blank endorsement from ABC.
{¶6} Ocwen Loan Servicing, LLC (“Ocwen“) sent Ms. Ayers a “Notice of Default” dated March 22, 2016, informing Ms. Ayers that her payments were past due and she was in default. It listed the total amount past due and informed her that failure to bring her account current may result in acceleration of the note and foreclosure. It also informed her that she “may have the right to reinstate the mortgage loan” after acceleration.
{¶7} MERS assigned Ms. Ayers’ mortgage to Deutsche Bank on January 26, 2017, and the assignment was recorded on February 1, 2017. The instrument indicates it was prepared by an individual named Leonora Jones Williams.
The Complaint, Answer, and Counterclaims
{¶8} On March 6, 2017, Deutsche Bank filed a complaint in foreclosure against Ms. Ayers and Mr. Paton, also naming Ms. Ayers’ unknown spouse and unknown tenants, if any, and the county treasurer. Deutsche Bank alleged that it was the “person entitled to enforce” and “in lawful possession” of Ms. Ayers note by virtue of the blank endorsement. Attached to the complaint were copies of the note, mortgage, and mortgage assignment.
{¶9} Deutsche Bank‘s complaint alleged that Mr. Paton has or may claim to have an interest in the real property. The preliminary judicial report lists that a marriage license between Ms. Ayers and Mr. Paton was filed in Portage County in 2008.
{¶10} Ms. Ayers and Mr. Paton filed a joint answer with a jury demand, raising numerous affirmative defenses. They also assеrted three counterclaims, alleging that Deutsche Bank violated the Fair Debt Collection Practices Act (Count 1), committed common law fraud (Count 2) and invaded their privacy by filing the foreclosure complaint (Count 3). All three counterclaims are premised on allegations that Deutsche Bank is not entitled to enforce the note and mortgage at issue in this case.
Motion to Dismiss Counterclaims and Opposition
{¶11} Deutsche Bank filed a motion to dismiss Ms. Ayers’ and Mr. Paton‘s counterclaims for failure to state claims upon which relief can be granted pursuant to
Motion for Summary Judgment and Opposition
{¶12} A magistrate conducted a status conference and scheduled discovery and dispositive motion deadlines. In April and June of 2018, Deutsche Bank filed notices to stay the deadlines due to Ms. Ayers’ pending loan modification application. Ultimately, the parties were not able to reach a settlement. In May 2019, pursuant to Deutsche Bank‘s request, the trial court lifted the stay and scheduled a dispositive motion deadline. Shortly thereafter, Deutsche Bank filed a motion for summary judgment and an affidavit from Howard R. Handville.
{¶13} With respect to his qualifications and personal knowledge, Mr. Handville‘s affidavit states: (1) he is a senior loan analyst with Ocwen Financial Corporation, whose indirect subsidiary is Ocwen; (2) his stаtements are based on his personal knowledge; (3) he is familiar with the business records that Ocwen maintains for the purposes of servicing mortgage loans, collection payments, and pursuing any delinquencies (collectively, “servicing records“); and (4) based on his training and general knowledge of the processes by which Ocwen‘s servicing records are created and maintained, and by or from information provided by persons with knowledge of the activity and transactions reflected in the records, servicing records relating to Ms. Ayers’ loan are kept in the ordinary course of Ocwen‘s regularly conducted business activities.
{¶14} With respect to the note, Mr. Handville‘s affidavit states: (1) the note is contained in Ocwen‘s records; (2) the date of the note‘s execution and original principal
{¶15} With respect to the mortgage, Mr. Handville‘s affidavit states: (1) the mortgage secured repayment of the note; (2) information regarding the encumbered real property and mortgage recording; and (3) a true and accurate copy of the mortgage is attached as Exhibit B and incorporated by reference.
{¶16} With respect to the mortgage assignment, Mr. Handville‘s affidavit states MERS assigned its interest to Deutsche Bank and a true and accurate copy of the assignment is attached as Exhibit C and incorporated by reference.
{¶17} Mr. Handville‘s affidavit furthers states: (1) Ocwen is the attorney-in-fact and servicer of Ms. Ayers’ loan and is authorized to act on behalf of Deutsche Bank; and (2) a true and accurate copy of a power of attorney is attached as Exhibit D and incorporated by rеference.
{¶18} With respect to possession of the note, Mr. Handville‘s affidavit states: (1) Deutsche Bank was in possession of the Note, and was the holder thereof, when the foreclosure case was filed on March 6, 2017; (2) Deutsche Bank‘s record custodian received the original Note on or around February 21, 2007, which it then delivered to Ocwen to hold on its behalf; (3) a copy of the custodial record verifying possession is attached as Exhibit O; and (4) Deutsche Bank is in possession of the Note and is currently the holder thereof.
{¶19} With respect to default, Mr. Handville‘s affidavit states: (1) the account is in default for the payment date of February 1, 2016 and all subsequent payments; (2) Deutsche Bank elected to call the entire balance due and payable in accordance with the
{¶20} Ms. Ayers and Mr. Paton filed a brief in opposition to summary judgment, contending: (1) a material issue of fact remains for trial regarding whether Deutsche Bank had possession of Ms. Ayers’ original note when the complaint was filed; (2) Mr. Handville‘s affidavit was not made on personal knowledge; (3) Deutsche Bank did not comply with all conditions precedent to foreclosure; (4) Deutsche Bank did not authenticate a proper payment history for the note; and (5) Deutsche Bank is not entitled to judgment as a matter of law and material issues of fact remaining for trial regarding the note, mortgage, and mortgage assignment.
{¶21} Attached to the brief in opposition was an affidavit from their counsel in which she states: (1) based on her internet research, an entity named “American Brokers Conduit Corporation” was not formed until March 16, 2012; (2) based on her internet research, Ms. Williams was not an attorney registered in Ohio; and (3) true and accurate copies of her search results are attached.
{¶22} Pursuant to an agreed stipulation, Deutsche Bank filed a reply brief in support of their motion for summary judgment and a “supplemental affidavit” from Mr. Handville.
{¶23} With respect to his qualifications and personal knowledge, Mr. Handville‘s supplemental affidavit states: (1) he is a senior loan anаlyst with Ocwen Financial Corporation, whose indirect subsidiary is PHH Mortgage Corporation (“PHH“), successor by merger to Ocwen; (2) his statements are based on his personal knowledge; (3) as part of its regular business practices and record keeping system, PHH maintains a computer database (“servicing records“) of loan transactions with respect to mortgage loans it services; (4) the matters in the servicing records are entered by persons with knowledge at the time of the transaction, occurrence, or event referred to therein, or were made within a reasonable time thereafter, are maintained in the ordinary course of PHH‘s regular business activity of mortgage servicing, and reflect regularly conducted business practices of mortgage servicing; (5) individuals maintaining PHH‘s business records are under a business duty to maintain accurate records; (6) he hаs access to the servicing records maintained with respect to Ms. Ayers’ loan; and (7) his statements are based on his personal knowledge, which is obtained through review of PHH and Ocwen‘s business records made in the ordinary course of business.
{¶24} Mr. Handville‘s supplemental affidavit contains information regarding the transfer of servicing records. It states: (1) he has reviewed the servicing records for Ms. Ayers’ loan, which reflect that PHH currently services her loan and is responsible for the day-to-day management of the account and for maintaining the services records related
{¶25} Mr. Handville‘s supplemental affidavit also sets forth information regarding the relationship between Ocwen and Homеward, stating: (1) Ocwen merged with Homeward; (2) he has access to the Homeward‘s corporate records due to the merger; (3) he is personally familiar with the manner in which Homeward‘s servicing records were created; (4) the information in Homeward‘s servicing records was entered by persons with knowledge at the time of the transaction, occurrence, or event referred to therein, or were made within a reasonable time thereafter and are maintained in the ordinary course of Homeward‘s regular business activity of mortgage servicing and reflect regularly conducted business practices of mortgage servicing; and (5) individuals maintaining Homeward‘s servicing business records were under a business duty to maintain accurate records.
{¶27} With respect to ABC, the original lender and payee under the note, Mr. Handville‘s supplemental affidavit states: (1) ABC was a fictitious name registered to American Home Mortgage Corporation as shown on the assumed name registrations attached as Exhibits C and D; and (2) ABC was not a separate corporation but was a “doing business as” name that was formally registered with the New York and Ohio Secretaries of State.
{¶28} Three weeks later, the trial court issued a judgment entry granting summary judgment to Deutsche Bank and issuing a decree of foreclosure.
{¶30} Deutsche Bank filed a brief in opposition to Ms. Ayers’ motion to strike. A magistrate subsequently issued an order denying Ms. Ayers’ motion to strike.
{¶31} Ms. Ayers and Mr. Paton timely appealed the trial court‘s judgment entries granting Deutsche Bank‘s motion for summary judgment and motion to dismiss. They present three assignments of error for our review:
{¶32} “[1.] The trial court erred by granting appellee Deutsche Bank‘s motion for summary judgment.
{¶33} “[2.] The trial court erred by granting appellee‘s motion for summary judgment when the affidavit of Howard R. Handville was not made upon personal knowledge and did not properly authenticate documents.
{¶34} “[3.] The trial court erred by granting appellee‘s motion to dismiss the counterclaims.”
{¶35} In their first and second assignments of error, Ms. Ayers and Mr. Paton set forth several arguments challenging the trial court‘s decision granting summary judgment to Deutsche Bank. We will review these assignments of error together.
Standard of Review
{¶36} We review de novo a trial court‘s order granting summary judgment. (Citation omitted.) Sabo v. Zimmerman, 11th Dist. Ashtabula No. 2012-A-0005, 2012-Ohio-4763, ¶9. “A reviewing court will apply the same standard a trial court is required to apply, which is to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter оf law.” (Citation omitted.) Id.
{¶37} “Since summary judgment denies the party his or her ‘day in court’ it is not to be viewed lightly as docket control or as a ‘little trial‘. The jurisprudence of summary judgment standards has placed burdens on both the moving and the nonmoving party. In Dresher v. Burt, 75 Ohio St.3d 280 (1996), the Supreme Court of Ohio held that the moving party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record before the trial court that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party‘s claim. The evidence must be in the record or the motion cannot succeed. The moving party cannot discharge its initial burden under
{¶38} The “portions of the record * * * are those evidentiary materials listed in
{¶39} “If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in the last sentence of
Required Elements for Foreclosure
{¶40} To properly support a motion for summary judgment in a foreclosure action, the mortgage lender must present evidentiary-quality materials showing: (1) it is the holder of the note and mortgage or is a party entitled to enforce them; (2) if it is not the original mortgagee, the chain of assignments and transfers; (3) the borrower is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due. Portage Cty. Commrs. v. O‘Neil, 11th Dist. Portage No. 2013-P-0066, 2015-Ohio-808, ¶13, citing Wachovia Bank of Delaware v. Jackson, 5th Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203, ¶40-45.
{¶42} In its complaint, Deutsche Bank generally alleged that all conditions precedent had been satisfied. In their joint answer, Ms. Ayers and Mr. Paton specifically denied that Deutsche Bank sent Ms. Ayers a valid notice of default and acceleration letter. Where, as here, prior notice of default and/or acceleration is required by a provision in a note or mortgage instrument, the provision of notice is a condition precedent to foreclosure subject to
{¶43} As an initial matter, we must determine whether we may properly consider Mr. Handville‘s supplemental affidavit.
{¶44} In support of its position that the trial court properly granted summary judgment, Deutsche Bank points not only to the Mr. Handville‘s original affidavit, but also to Mr. Handville‘s supplemental affidavit submitted in conjunction with its reply in support of its motion for summary judgment. Ms. Ayers and Mr. Paton argue that Deutsche Bank inappropriately attempted to introduce new evidence and argument in its reply brief.
{¶45} It is well-established that a party moving for summary judgment must expressly delineate each basis on which it seeks summary judgment in its motion so as to provide the opposing party a meaningful opportunity to respond. Hicks v. Cadle Co., 11th Dist. Trumbull No. 2014-T-0103, 2016-Ohio-4728, ¶18, quoting Baker v. Coast to Coast Manpower, L.L.C., 3d Dist. Hancock No. 5-11-36, 2012-Ohio-2840, ¶35. The danger in allowing a new argument to be asserted in a reply or a supplemental motion is that the opposing party does not hаve an opportunity to respond and may be subjected to summary judgment by ambush. Id.
{¶46} Ms. Ayers and Mr. Paton cite the Ninth District‘s decision in HSBC Bank USA v. Beirne, 9th Dist. Medina No. 10CA0113-M, 2012-Ohio-1386, ¶18. However, Beirne involved a party that attempted to support the trial court‘s granting of summary judgment by pointing to materials attached to its response to a motion to dismiss. Id. at ¶18. Thus, the court held that since the materials were not offered in support of its motion for summary judgment, they could not be relied upon to demonstrate the absence of a genuine issue of material fact. Id.
{¶48} Mr. Handville‘s supplemental affidavit also sought to clarify the issue of the possession of Ms. Ayers’ original note. Courts found that such a practice does not constitute the assertion of a new argument in reply. See, e.g., Bank of New York Mellon v. Crates, 5th Dist. Licking No. 15-CA-70, 2016-Ohio-2700, ¶21 (holding that an affidavit submitted with a reply brief that sought to clarify the issue of possession of a note did not assert a new argument).
{¶49} Further, when a new argument is raised in a reply, the proper procedure is to strike the reply or, alternatively, to allow the opposing party to file a surreply. Hicks at ¶18, quoting Baker at ¶35. Ms. Ayers and Mr. Paton did not seek leave to file a surreply. Although Ms. Ayers filed a motion to strike Mr. Handville‘s supplemental affidavit, she did so after the trial court had issued a judgment entry granting Deutsche Bank‘s motion for summary judgment. In her motion to strike, she did not allege being ambushed but instead argued that the supplemental affidavit raised materiаl issues of fact.
{¶50} And to the extent the magistrate‘s order denying her motion to strike merged into the trial court‘s final order, Ms. Ayers and Mr. Paton did not appeal it or attach it to the notice of appeal in this case. See
Personal Knowledge
{¶51} We now address the merits of Ms. Ayers and Mr. Paton‘s appeal. Ms. Ayers and Mr. Paton argue that Mr. Handville‘s affidavit was not made upon personal knowledge and was therefore deficient to authenticate documents.
{¶52}
{¶53} “[The] mere assertion of personal knowledge satisfies the personal knowledge requirement of
{¶54} Further, it is not necessary that the witness authenticating a business record have firsthand knowledge of the transaction giving rise to the record. Id. at ¶27, citing State v. Wagner, 8th Dist. Cuyahoga No. 93432, 2010-Ohio-2221, ¶25. Rather, the witness must be sufficiently familiar with the operation of the business and with the circumstances of the record‘s preparation and maintenance that he or she can reasonably testify, on the basis of this knowledge, that the record is what it purports to be and that it was made in the ordinary course of business. Id.
{¶55} Ms. Ayers and Mr. Paton argue that Mr. Handville‘s affidavit relies on records from other servicers and does not state that he has knowledge of the record-keeping systems of those servicers.
{¶56} Whether a loan servicer can testify as to documents created by prior servicers has been the subject of a large amount of litigation in Ohio. See Bank of New York Mellon for Certificate Holders of CWABS, Inc. v. Kohn, 7th Dist. Mahoning No. 17 MA 0164, 2018-Ohio-3728, ¶12. Ms. Ayers and Mr. Paton cite the Eighth District‘s decision in Bank of New York Mellon v. Roulston, 8th Dist. Cuyahoga No. 104908, 2017-Ohio-8400. In Roulston, the lender submitted an affidavit from an individual employed by the lender‘s loan servicer. Id. at ¶18. The court stated that the affidavit demonstrated that the individual was qualified to authenticate documents that the servicer and lender created and maintained, even if she was not the person who prepared the documents. Id. However, the individual‘s affidavit did not show she was qualified to authenticate
{¶57} The Eighth District subsequently narrowed its Roulston holding in a subsequent case. See U.S. Bank Natl. Assn. v. O‘Malley, 8th Dist. Cuyahoga No. 108191, 2019-Ohio-5340, ¶57. In addition, this court has not adopted the holding in Roulston. Rather, we have consistently held that an employee of a loan servicer had the requisite personal knowledge about the material for which he averred by stating his personal knowledge was based on his position and that he personally reviewed the loan servicer‘s regularly kept business records. See O‘Neil at ¶17-18; U.S. Bank Natl. Assn. v. Martz, 11th Dist. Portage No. 2013-P-0028, 2013-Ohio-4555, ¶25.
{¶58} Further, Ms. Ayers’ and Mr. Paton‘s argument relates only to Mr. Handville‘s original affidavit. His supplemental аffidavit states that he is an employee of Ocwen Financial Corporation, whose indirect subsidiary is PHH; PHH is the successor by merger to Ocwen and is the current loan servicer; and his statements are based on his personal knowledge obtained through review of PHH and Ocwen‘s business records made in the ordinary course of business.
{¶59} His supplemental affidavit further states that Ocwen incorporated the records of Homeward, the prior loan servicer, into its record keeping system; Ocwen merged with Homeward; he is personally familiar with the manner in which Homeward‘s servicing records were created; the information in Homeward‘s servicing records are maintained in the ordinary course of Homeward‘s regular business activity of mortgage servicing and reflect regularly conducted business practices of mortgage servicing; individuals maintaining Homeward‘s servicing business records were under a business
{¶60} The foregoing information is sufficient to create a reasonable inference that Mr. Handville‘s affidavit was based on personal knowledge under this court‘s precedent and even under the Eighth District‘s decision in Roulston. As a result, the burden shifted to Ms. Ayers and Mr. Paton to present evidentiary materials demonstrating that Mr. Handville‘s affidavit was not based on personal knowledge. State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 467 (1981) (“The specific allegation in [an] affidavit that it was made upon personal knowledge is sufficient to meet this requirement of
{¶61} Having failed to do so, they did not create a genuine issue of material fact as to whether Mr. Handville‘s affidavit was made оn personal knowledge.
Authentication
{¶62} Ms. Ayers and Mr. Paton argue that Mr. Handville‘s affidavit was insufficient to authenticate Ms. Ayers’ original note.
{¶63} There is no requirement in
{¶64} In addition,
{¶65} Further,
{¶66} The party opposing the introduction of the duplicate has the burden of proving that there is a genuine question as to the authenticity of the original or that it would be unfair to admit the duplicate. Merlo at ¶19, citing Natl. City Bank v. Fleming, 2 Ohio App.3d 50, 57 (8th Dist.1981). The objection must be something more than a frivolous objection. Id.
{¶67} Mr. Handville‘s original affidavit states that a true and accurate copy of Ms. Ayers’ note is attached as Exhibit A and incorporated by reference. His supplеmental affidavit states that he has personally reviewed the original blue-ink note and it is identical to the copy attached as Exhibit A to his original affidavit. Thus, these affidavits comply with
{¶69} Accordingly, Ms. Ayers and Mr. Paton have not raised a genuine issue concerning the authenticity of the note attached to Mr. Handville‘s affidavit or made a showing that in the circumstances presented here, it would be unfair to admit a copy of the note in lieu of the original.
{¶70} Ms. Ayеrs and Mr. Paton also argue that Mr. Handville‘s affidavit does not properly authenticate a proper payment history for Ms. Ayers’ note because the payment history does not contain Deutsche Bank‘s letterhead or any reference to Deutsche Bank. Ms. Ayers and Mr. Paton cite no legal authority imposing this requirement, nor do they present any evidence indicating the payment history attached to Mr. Handville‘s affidavit is somehow inaccurate. Accordingly, Ms. Ayers and Mr. Paton have also not raised a genuine issue of material fact concerning the authenticity of the payment history attached to Mr. Handville‘s affidavit.
Holder of the Note
{¶71} Ms. Ayers and Mr. Paton argue that genuine issues of material fact exist as to whether Deutsche Bank was in possession of the note prior to the filing of the complaint on March 6, 2017.
{¶72} A plaintiff in a foreclosure action must have standing at thе time it files the complaint in order to properly invoke the jurisdiction of the trial court. Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶41-42. The lender
{¶73} Ohio‘s version of the Uniform Commercial Code, set forth at
{¶74} In the underlying case, there is no dispute that Ms. Ayers’ note was endorsed in blank, making it payable to bearer. Thus, the issue is whether Deutsche Bank met its burden on summary judgment to establish its possession of the note prior to the complaint being filed.
{¶76} In support of his affidavit, Mr. Handvillе attaches as “Exhibit O” a copy of “the custodial record verifying possession.” Exhibit O appears to be a computer screenshot of comments dated April 9, 2019. The comments do not establish Deutsche Bank‘s or Ocwen Loan Servicing‘s possession of the original note on February 21, 2007. Rather, it states “Per review of Deutsche Bank, as the Custodian‘s business records reflect, initial date of deposit is unavailable [sic] the collateral file including the original note was added into their system on 02/21/2007” and that “Per review of company records Ocwen is currently in possession of this Original Note.” Thus, Exhibit O only establishes that Deutsche Bank added the collateral file and original note into their system on February 21, 2007 and that Ocwen was in possession of the original note after the complaint was filed.
{¶77} However, Ms. Ayers and Mr. Paton‘s argument does not acknowledge Mr. Handville‘s supplemеntal affidavit. In his supplemental affidavit, Mr. Handville states Ocwen received the original note from Deutsche Bank‘s record custodian, Deutsche Bank National Trust Company, on October 20, 2016. In support, Mr. Handville attaches as “Exhibit B” a copy of “the screenshot documenting Ocwen‘s receipt of the original Note and the collateral file.” Exhibit B appears to be a computer screenshot of dated October 20, 2016. This document states: “Collateral file review from Custodian“; “Deutsche Bank
{¶78} While Mr. Handville‘s affidavits create an issue of fact as to the exact date Deutsche Bank‘s agent came into possession, both dates are prior to the filing of the complaint. Thus, this issue of fact is not material and does not preclude summary judgment. See
Holder of the Mortgage
{¶79} Ms. Ayers and Mr. Paton argue that genuine issues of material fact exist as to whether Deutsche Bank is the valid holder of the mortgage.
{¶80} “Holder of the mortgage” means the holder of the mortgage as disclosed by the records of the recorder of the county in which the mortgaged premises are situated.
{¶81} Ms. Ayers and Mr. Paton first argue that the original lender under the mortgage filed a Chapter 11 bankruptcy, and Deutsche Bank presented no evidence that the original lender retained the loan after termination of the bankruptcy estate. However, Ms. Ayers and Mr. Paton did not assert this argument in their opposition to Deutsche Bank‘s motion for summary judgment. This court has held thаt “if during a summary judgment exercise, the nonmoving party fails to raise an issue when responding to the moving party‘s motion for summary judgment, the nonmoving party has waived that issue
{¶82} Ms. Ayers and Mr. Paton also argue that the assignment of Ms. Ayers’ mortgage was void because it was drafted by an individual who was not a licensed attorney. We acknowledge that Supreme Court of Ohio has determined the unauthorized practice of law includes the preparation of legal documents on another‘s behalf, including deeds which convey real property. See Disciplinary Counsel v. Doan, 77 Ohio St.3d 236, 237 (1997). However, the Supreme Court of Ohio also has exclusive jurisdiction over the practice of law in Ohio, including the unauthorized practice of law. See Greenspan v. Third Fed. S. & L. Assn., 122 Ohio St.3d 455, 2009-Ohio-3508, paragraph two of syllabus. Ms. Ayers and Mr. Paton cite no legal authority which would permit us to invalidate an assignment of mortgage on the basis that its creation cоnstituted the unauthorized practice of law.
{¶83} Accordingly, Ms. Ayers and Mr. Paton have not raised a genuine issue of material fact as to whether Deutsche Bank is the holder of the mortgage.
Condition Precedent
{¶84} Finally, Ms. Ayers and Mr. Paton argue that Deutsche Bank failed to satisfy a condition precedent to foreclosure because it did not provide Ms. Ayers with a proper notice of acceleration.
{¶85} On summary judgment, Deutsche Bank provided the affidavit of Mr. Handville, which states (1) Ms. Ayers defaulted on the note and mortgage, (2) Deutsche Bank elected to call the entire balance of the account due and payable, (3) a true and accurate copy of the notice of default and acceleration is attached and incorporated by
{¶86} Paragraph 22 of Ms. Ayers’ mortgage requires the lender to give notice to Ms. Ayers prior to acceleration of the loan. Among other things, the notice “shall further inform” Ms. Ayers of “the right to reinstate after acceleration.” Ms. Ayers contends that Deutsche Bank did not properly accelerate the loan because its notice stated Ms. Ayers ”may have the right to reinstate the mortgage loan, depending on the terms of the note and mortgage” rather than informing her that she did have the right to reinstate. (Emphasis added.) In support, she cites Fed. Natl. Mtge. Assn. v. Marroquin, 477 Mass. 82, 89-90 (2017), which is a decision from the Supreme Judicial Court of Massachusetts.
{¶87} In addition to being nonbinding, we find Marroquin to be inapposite. Unlike in Ohio, Massachusetts permits foreclosure of mortgages by the exercise of a “power of sale” without “judicial oversight.” See id. at 86. Because of that “substantial power,” the lender must “strictly comply with the terms of a mortgage.” See id. Apparently, the case on which Marroquin relies was decided by a bare majority and has not been followed outside of Massachusetts other than in Alabama. See Aubee v. Selene Fin., LP, D.R.I. No. 19-37WES, 2019 WL 7282019, *5 (Dec. 27, 2019).
{¶88} Further, we find that the notice at issue in this case was not deficient. Ms. Ayers’ right to reinstate after acceleration is set forth in Paragraph 19 of her mortgage and states she “shall have” such a right if she meets certain specified conditions. Thus, the notice accurately informed her that she “may” have a right to reinstate, because obtaining the right required Ms. Ayers’ performance of several conditions. Accordingly,
{¶89} Ms. Ayers’ and Mr. Paton‘s first and second assignments of error are without merit.
Motion to Dismiss
{¶90} In their third assignment of error, Ms. Ayers and Mr. Paton argue that the trial grant erred in granting Deutschе Bank‘s motion to dismiss their counterclaims.
{¶91} Ms. Ayers and Mr. Paton asserted three counterclaims against Deutsche Bank: violations of the Fair Debt Collection Practices Act (Count 1), common law fraud (Count 2), and invasion of privacy by intrusion upon seclusion (Count 3). All three counterclaims are premised on allegations that Deutsche Bank is not entitled to enforce the note and mortgage at issue in this case.
{¶92} Ms. Ayers and Mr. Paton raised many of these arguments in opposition to summary judgment. Thus, the trial court‘s granting of summary judgment to Deutsche Bank, which we have affirmed above, constituted a ruling on the issues contained the counterclaims, making them either adjudicated or moot. Wells Fargo Bank, N.A. v. Jarvis, 7th Dist. Columbiana No. 08-CO-30, 2009-Ohio-3055, ¶27; Victor Asset Acquisition, L.L.C. v. Woogerd, 5th Dist. Richland Nos. 15-CA-47 & 15-CA-69, 2016-Ohio-1435, ¶50; see also Wells Fargo Bank, N.A. v. Dumm, 4th Dist. Athens No. 13CA5, 2014-Ohio-3124, ¶10 (summary judgment entry in foreclosure that addressed issues raised in cross-claim rendered the cross-claim moot); Mid-American Natl. Bank & Trust Co. v. Boyer, 6th Dist. Lucas No. L-83-219, 1983 WL 6986, *1 (Nov. 4, 1983) (granting of summary judgment in foreclosure rendered a counterclaim and cross-claim moot); Wise v. Gursky, 66 Ohio St.2d 241, 243 (1981) (a judgment on a jury verdict determined the claims and issues in a third-party complaint).
{¶93} To the extent Ms. Ayers and Mr. Paton did not raise certain arguments regarding Deutsche Bank‘s right to enforce the note and mortgage in opposition to summary judgment, they were waived. A party opposing summary judgment must inform the trial court and the other party of the basis of his or her opposition, so that the court and other party are on notice of all potential issues. Crandall v. Fairborn, 2d Dist. Greene No. 2002-CA-55, 2003-Ohio-3765, ¶18.
{¶94} Further, to the extent Ms. Ayers and Mr. Paton raised certain arguments in opposition to summary judgment but did not raise them on appeal, they have been abandoned. See Jarvis at ¶33 (“Errors not argued in a brief will be regarded as having been abandoned“); State v. Mangold, 11th Dist. Portage No. 2008-P-0033, 2008-Ohio-6406, ¶37 (“by failing to make this argument in his brief, it is abandoned on appeal“).
{¶95} Accordingly, Ms. Ayers’ and Mr. Paton‘s third assignment of error is dismissed as moot.
{¶96} Based on the foregoing, the judgments of the Portage County Court of Common Pleas are affirmed.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.