Huntington National Bank v. LegardHuntington National Bank v. Legard
{¶ 2} On January 29, 2003, Appellee filed a complaint against Appellants seeking a monetary award due to Appellant's default on a promissory note for the purchase of a vehicle. Thereafter, Appellee filed a motion for summary judgment. Appellants responded in opposition alleging that they did not receive adequate notice of disposition of the vehicle and that the disposition was not commercially reasonable. The court granted summary judgment in favor of Appellee and Appellants appealed asserting two assignments of error, which have been consolidated to facilitate review.
{¶ 3} In these assignments of error, Appellants allege that the trial court erred by granting Appellee's motion for summary judgment. Essentially, Appellants argue that issues of material fact exist regarding proper notice and disposition of the collateral. We agree.
{¶ 4} Pursuant to
{¶ 5} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and is to identify portions of the record that demonstrate the absence of genuine issues of material fact as to an essential element of the non-moving party's claims. Dresher v. Burt (1996),
{¶ 6} Pursuant to
{¶ 7} In the present matter, Appellants contend that neither the disposition of the collateral nor the notification received conform to the statutory requirements. In an action where the secured party's compliance is at issue, "the secured party has the burden of establishing that the * * * disposition * * * was conducted in accordance with [
{¶ 8} Moreover, notwithstanding the language of
"[i]t is basic that regardless of who may have the burden of proof at trial, the burden is on the party moving for summary judgment to establish that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Horizon Savings v.Wootton (1991),
Thus, as Appellee was the party moving for summary judgment, the burden was on the bank to establish the absence of a genuine issue of material fact. See Lance Acceptance Corp. at ¶ 11.
{¶ 9} In support of its motion, Appellee provided copies of various documents and an affidavit of Vilma Kruse, who is identified as the custodian of the records for Appellee. Ms. Kruse's affidavit states that "she has the custody and control of the records herein and makes the within [a]ffidavit based upon his (sic) review of said records maintained in the ordinary course of business." It further states that "she has reviewed all exhibits attached to [Appellee's] [b]rief in [s]upport of its [m]otion for [s]ummary [j]udgment and states to the best of her knowledge and belief that those exhibits are true and accurate copies of the purported documents." The exhibits are photocopies of a report of Appellants payment history and two letters, containing the statement "Notice of Our Plan to Sell Property," addressed to Appellants. The affidavit does not identify how many documents are attached, nor does it specifically identify any documents by exhibit letter or number.
{¶ 10}
{¶ 11} In the present matter, while two of the documents attached to Appellee's motion for summary judgment appear to be letters addressed to Appellants captioned "Notice of Our Plan to Sell Property," they are not proper
{¶ 12} Accordingly, based upon the evidence presented, Appellee has not met its Dresher burden of demonstrating that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Appellant's first and second assignments of error are sustained.
{¶ 13} Appellant's assignments of error are sustained. The judgment of the Lorain County Court of Common Pleas is reversed and the cause is remanded for further proceedings.
Judgment reversed, and cause remanded.
Baird, P.J., Batchelder, J., Concur.