HSBC Mtge. Servs., Inc. v. TothHSBC Mtge. Servs., Inc. v. Toth
Bill L. Purtell, for appellee.
Brian K. Duncan and Bryan D. Thomas, for appellant.
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YARBROUGH, P.J.
I. Introduction
{¶ 1} This is an accelerated appeal from a judgment of the Sandusky County Court of Common Pleas granting appellee’s, U.S. Bank Trust, N.A., motion for summary judgment in its foreclosure action against appellant, Mark Toth. For the following reasons, we affirm.
{¶ 2} On November 8, 2012, HSBC Mortgage Services (“HSBC”), the predecessor in interest to appellee, filed a complaint in foreclosure against appellant. The complaint alleged that HSBC had possession of and was entitled to enforce a note executed by appellant, that appellant defaulted on the note, that all conditions precedent had been met, and that HSBC had accelerated the balance due on the note, which totaled approximately $97,000. Further, the complaint alleged that HSBC was the assignee of the mortgage, that appellant had broken the conditions of the mortgage, and that HSBC was entitled to have the mortgage foreclosed. Attached to the complaint was a copy of the original note, which was endorsed in blank by the original lender, and a copy of the assignment of mortgage to HSBC. The assignment of mortgage was recorded on April 17, 2012.
{¶ 3} Appellant filed an answer in which he generally denied all of the allegations of the complaint. In addition, appellant raised numerous affirmative defenses including, inter alia, that HSBC lacked standing and was not the real party in interest to enforce the note and mortgage.
{¶ 4} Thereafter, on November 4, 2013, HSBC moved to substitute appellee as plaintiff. Attached to the motion to substitute was a recorded assignment of mortgage transferring the note and mortgage from HSBC to appellee on July 26, 2013. The trial court granted the motion to substitute.
{¶ 6} Appellant filed a response in opposition to appellee’s motion for summary judgment. In his response, appellant presented a list of what he contends are genuine issues of material fact including, but not limited to, appellee’s failure to adhere to appropriate regulations and obligations under the mortgage and note, whether payments were properly allocated, whether the mortgage was properly executed, whether appellee breached the underlying note and mortgage, and whether appellee has standing. Additionally, appellant argued that appellee is not a holder in due course of the note as provided under
{¶ 7} Upon consideration of the parties’ arguments in their briefs, the trial court entered its decision on April 2, 2014, granting summary judgment in favor of appellee.
B. Assignment of Error
{¶ 8} Appellant has timely appealed the April 2, 2014 judgment, and assigns one error for our review:
THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT AND PLAINTIFF WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.
II. Analysis
{¶ 9} We review summary judgment decisions de novo, applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). Applying
{¶ 10} In order to properly support a motion for summary judgment in a foreclosure action, a plaintiff must present evidentiary-quality materials demonstrating: (1) that it is the holder of the note, which is secured by a mortgage, or that it is otherwise entitled to enforce the instrument; (2) that the mortgagor is in default; (3) that all conditions precedent have been met; and (4) the amount of the principal and interest due. Fed. Natl. Mtge. Assn. v. Brunner, 2013-Ohio-128, 986 N.E.2d 565, ¶ 10 (6th Dist.); U.S. Bank, N.A. v. Coffey, 6th Dist. Erie No. E-11-026, 2012-Ohio-721, ¶ 26.
{¶ 11} In his assignment of error, appellant raises the same issues that he presented to the trial court. We will begin with appellant’s argument that McClelland’s affidavit does not meet the requirements of
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.
Civ.R. 56(E) .
{¶ 12} Appellant contends that the affidavit does not demonstrate McClelland’s personal knowledge of the facts. We disagree. Evidence to prove personal knowledge may consist of the witness’ own testimony. Evid.R. 602. “A mere assertion of personal
{¶ 13} Appellant also argues that the affidavit is insufficient because it fails to establish that the loan documents are properly authenticated business records under Evid.R. 803(6). In order to properly authenticate business records, “the witness need not have personal knowledge of the creation of the particular record in question, and need not have been in the employ of the company at the time the record was made, * * * [but] he must be able to vouch from personal knowledge of the record-keeping system that such records were kept in the regular course of business.” State v. Davis, 62 Ohio St.3d 326, 342, 581 N.E.2d 1362 (1991), quoting Dell Publishing Co., Inc. v. Whedon, 577 F.Supp.
{¶ 14} Accordingly, we find that appellant’s arguments concerning the sufficiency of McClelland’s affidavit are without merit.
{¶ 15} Appellant additionally argues that appellee lacks standing to pursue this foreclosure. “It is an elementary concept of law that a party lacks standing to invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the subject matter of the action.” (Emphasis sic.) Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 22, quoting State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio St.2d 176, 179, 298 N.E.2d 515 (1973). In this case, HSBC had standing to pursue the foreclosure action because it was the holder and party entitled to enforce the note and mortgage at the time the complaint was filed. During the pendency of the foreclosure action, HSBC transferred its interest in the note and mortgage to appellee.
{¶ 16} Finally, appellant contends that appellee is not entitled to summary judgment because it is not a holder in due course. Under
{¶ 17} Here, although appellant lists a number of defenses, such as improper allocation of payments, unclean hands, and improper execution of the mortgage, appellant has presented no evidence to substantiate any of those claims, or to show that there is a genuine issue for trial. See Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 24 (nonmoving party bears the initial burden to produce evidence supporting his or her affirmative defenses); Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996) (once moving party has satisfied his or her initial burden to demonstrate that he or she is entitled to judgment, the nonmoving party has a reciprocal burden to set forth specific facts showing that there is a genuine issue for trial). Therefore,
{¶ 18} Accordingly, having found no merit to appellant’s arguments, we hold that summary judgment for appellee is appropriate. Appellant’s assignment of error is not well-taken.
III. Conclusion
{¶ 19} For the foregoing reasons, the judgment of the Sandusky County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Stephen A. Yarbrough, P.J. CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.