Case Information
*1
[Cite as
PNC Bank, N.A. v. Price
,
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
PNC BANK, N.A., SUCCESSOR BY : Hоn. W. Scott Gwin, P.J.
MERGER WITH NATIONAL CITY : Hon. William B. Hoffman, J.
BANK : Hon. Craig R. Baldwin, J.
:
Plaintiff-Appellee :
: Case No. 15AP0015 -vs- :
:
MARK J. PRICE, JR. AKA MARK J. : OPINION
PRICE, ET AL
Defendant-Appellant CHARACTER OF PROCEEDING: Civil appeal from the Morgan County Court
of Common Pleas, Case No. 13CV0025 JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 4, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant ROBERT HOGAN BRUCE BROYLES STEPHANIE F. GILLEY 5815 Market Street, Ste. 2 700 Walnut Street, Ste. 302 Boardman, OH 44512 Cincinnati, OH 45202
[Cite as
PNC Bank, N.A. v. Price
,
Gwin, P.J. Appellant appeals the October 15, 2015 judgment entry of the Morgan
County Court of Common Pleas granting appellee’s motion for summary judgment and the November 12, 2015 judgment entry granting a decree of foreclosure.
Facts & Procedural History On March 29, 2002, appellant Mark H. Price, Jr. and Alberta Pricе opened an Equity Reserve Line of Credit with National City Bank. The initial amount of the Line of Credit was $50,000. The relevant terms of the Line of Credit Agreement stated as follows:
Line of Credit. Your Line is an open-end line of credit which you may use to obtain cash advances (Advances) from time to time for a period of 10 years (Term). Your line will mature on the last day of the billing cycle ending in March 2012 (Maturity Date). If you continue to meet Bank’s then current standards for credit criteria and collaterаl value, at Bank’s discretion, Bank will either extend the Maturity Date for one or more additional Terms or Bank will refinance your Line on the terms then being offered by Bank for Equity Reserve Lines of Credit.
* * *
The Line Minimum Payment will not fully repay the principal that is outstanding on your Line by the Maturity Date. If you use an FRP after the first five years of your Agreement, then the FRP payment will not fully amortize your FRP by the Maturity Date. Bank will refinance the remaining unpaid balance of your Line and/or FRP on terms then offered by Bank, *3 providеd you continue to meet Bank’s then current standards for credit criteria and collateral value. Otherwise, you will be required to pay the entire balance in a single payment. After the Maturity Date and prior to refinancing or payment of the entire outstanding balance, you will continue to be bound by this Agreement in that you will be liable for all finance charges and other amounts and you will be required to continue making monthly payments. Bank does not waive its right to receive payments in full by accepting partial payments after the Maturity Date.
* * *
Termination of the Line. Bank can terminate your Line and require you to pay the entire outstanding balance in one payment if:
You engage in fraud or material misrepresentation with your Line.
You do not meet the repayment terms of this Agreement.
Your action or inaction adversely affects the collateral or Bank’s rights in the collateral. Appellant secured the Equity Reserve Line of Credit by executing a
mortgage with National City Bank on the real propеrty located at 9850 North Greer Road N.W., in McConnelsville, Ohio. The mortgage was recorded on April 11, 2002. Effective December 31, 2008, National City Corporation merged with and into The PNC Financial Services, Group, Inc. On November 6, 2009, National City Bank was merged with and into Plaintiff-appellee, PNC Bank, National Association. On February 11, 2013, appellee filed a complaint for foreclosure against appellant in the Morgan County Court of Common Pleas. Appellee stated it was the *4 holdеr of the Equity Line of Credit Agreement and mortgage executed by appellant. Copies of the Equity Line of Credit Agreement and mortgage were attached to the complaint as exhibits. Appellee alleged that by reason of default in terms of the Equity Reserve Line of Credit Agreement and the mortgage securing the same, appellant owed the principal sum of $49,783.53 plus interest at the rate of 3.25% per annum from April 30, 2012 to December 6, 2012. After appellee filed a motion fоr default, the trial court granted a judgment
entry and decree of foreclosure on September 17, 2013. On December 16, 2013, appellant filed a motion to vacate default judgment and motion for leave to file answer to complaint instanter. The trial court granted appellant’s motions on December 19, 2013. Appellant thus filed his answer on December 19, 2013. In his answer, appellant raised as an affirmative defense that appellee lacked standing. Appellant further alleged as an affirmative defense that appellee breached the terms of the credit line agreement because appellee did not extend the maturity date or refinance the credit line. After the parties were unable to agree on a loan modification agreement,
appellee moved for summary judgment on December 1, 2014. In support of its motion for summary judgment, appellee attached the affidavit of Marika Dienes (“Dienes”), loаn support analyst with PNC Bank. She averred that in the regular performance of her job functions, she was familiar with the business records maintained by PNC Bank. The affidavit stated PNC Bank was the holder of the Line of Credit Agreement, appellant failed to make the payment due for April 30, 2012, and did not satisfy the payments that came due thereafter.
{¶8} Appellant filed a response to the motion for summary judgment and a motion to strike the affidavit of Dienes. Appellant argued Dienes’ affidavit was inаdmissible hearsay and Dienes lacked knowledge or capacity to testify and authenticate the records. Finally, appellant argued there was a novation of the original debt. Attached to his opposition and motion to strike was appellant’s affidavit in which he stated he began working with PNC in April of 2012 to work out a new loan agreement. Appellant averred he and appellee were negotiating an extension of the line of credit and Issac Wilcox tоld him for a term of thirty (30) years, the payment amount would be $100.05 per month at 1% interest for the first five (5) years of the agreement, and the remainder of the loan payment fixed at 5.25% interest with a monthly payment of $280.50. Appellee filed a reply to appellant’s opposition on December 11, 2014. On
March 19, 2015, appellant filed an additional affidavit, stating he recorded his phone conversations with the employees of PNC. Attached to his affidavit were transcripts of these convеrsations. Appellee filed a motion to strike appellant’s affidavit on April 2, 2015, and argued the trial court should strike appellant’s March 2015 affidavit because appellant did not request leave to supplement his response to summary judgment and because the conversations were not relevant to the issues at hand in the instant case. On July 28, 2015, the trial court granted appellee’s motion to strike the
March 2015 affidavit of appellant as being out of rule. The trial court granted appellee’s motion for summary judgment on October 15, 2015. On November 12, 2015, the trial court entered a judgment entry and decree of foreclosure. Appellant appeals the judgment entries of the Morgan County Court of
Common Pleas and assigns the following as error:
{¶12} “I. THE TRIAL COURT ERRED IN REFUSING TO STRIKE THE AFFIDAVIT OF MARIKA DIENES AND RELYING UPON HER AFFIDAVIT IN DETERMINING THE MOTION FOR SUMMARY JUDGMENT. “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO APPELLEE WHEN APPELLEE FAILED TO ESTABLISH THAT IT WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW. “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO APPELLEE WHEN THERE REMAINED A GENUINE ISSUE OF MATERIAL FACT IN DISPUTE ON THE ISSUE OF WHETHER A NOVATION OF THE OBLIGATION HAD OCCURRED.”
Summary Judgment Standard Summary Judgment Civ. R. 56 states in pertinent part:
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that pаrty being *7 entitled to have the evidence or stipulation construed mostly strongly in the party’s favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co. ,
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc. ,
I. Appellant first argues the trial court erred in relying on the affidavit of Dienes because the affidavit was not based on personal knowledge and was thus inadmissible hearsay. Evidence Rule 803(6) provides that records of regularly conducted business
activity are admissible, as an exception to the rules of hearsay, if shown to be such “by
the testimony of the custodian or other qualified witness.” The question of who may lay
a foundation for the admissibility of business records as a custodian or other qualified
witness must be answered broadly. U.S. Bank Trustee, N.A. v. Herman , 5th Dist.
Delaware No. 14 CAE 04 0023,
[and] set forth such facts as would be admissible in evidence.” Civil Rule 56(E). Ohio
law recognizes personal knowledge may be inferred from the contents of an affidavit.
*9
Wells Fargo Bank, N.A. v. Dawson , 5th Dist. Stark No. 2013CA00095,
I am the Loan Support Analyst of PNC Bank, N.A., successor by merger with National City Bank, and in this position I have reviewed certain business files, documents and other business records of PNC Bank, N.A. successor by merger with National City Bank’s account for Mark H. Price, Jr. and Albеrta Price. I am over the age of 18 and I make this affidavit based upon my personal knowledge obtained from my personal review of such business records, and I am competent to testify to its content.
In the regular performance of my job functions, I am familiar with business records maintained by PNC Bank, N.A. successor by merger with National City Bank for the purpose of servicing mortgage loans. Based on my knowledge of PNC Bank, N.A. successor by merger with National City Bank’s business practices, the entries in these records (which include data compilations, electronic image documents, and others) are made at the time of the events and conditions they describe, either by people with firsthand knowledge of those events and conditions or form information provided by people with such firsthand knowledge. It is PNC Bank, N.A. successor by merger with National City Bank’s business practice to electronically store *10 duplicates of the originals of all notes or other debt instruments, endorsements, allonges, mortgages, and assignments thereof.
{¶22} Dienes’ affidavit goes on to state the details of the Equity Reserve Line of Credit Agreement and the mortgage executed by Price on March 29, 2002. Dienes avers appellant failed to make the payment due for April 30, 2012 and did not satisfy the payments that came thereafter. Further, Dienes stated as of November 24, 2014, there was due and owing the amount of $49,783.53. From her position as the loan support analyst and her statement that she
examined the records in this case, it may be reasonably inferred Dienes had personal knowledge to qualify the documents as an exception to the hearsay rule as business documents. Appellant contends Dienes does not describe her job duties or how she
obtained personal knowledge and thus she does not demonstrate personal knowledge. We disagree. The affiant in this case is clearly identified as a Loan Support Analyst of PNC Bank. She specifically attests to her job duties and states, “in the regular performance of my job functions, I am familiar with business records maintained by PNC bank, N.A. successor by merger with National City Bank for the purpose of servicing mortgage loans.” She provides that, based upon this knowledge of PNC Bank’s business practices, the entries in the record are made at the time of the events and conditions they describe. Though appellant contends this case is analogous to Deutsche Bank Nat’l
Trust Co. v. Dvorak , 9th Dist. Summit No. 27120,
personal knowledge because the affiant authenticated copies of the electronically stored duplicates of the original note and mortgage. Evidence Rule 901 governs authentication or identification of evidence. It
states, “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Evidence Rule 901(A). Evidence Rule 901(B)(1) provides the testimony of a witness with knowledge, who testifies that a matter is what it is claimed to be, conforms with the requirements of Evidence Rule 901. Thus, “any competent witness who has knowledge that а matter is what its proponent claims may testify to such pertinent facts, thereby establishing, in whole or in part, the foundation for identification.” Id. Thus, verification of documents attached to an affidavit supporting or
opposing a motion for summary judgment is generally satisfied by an appropriate
averment in the affidavit itself, for example, that “such copies are true copies and
reproductions.” State ex rel. Corrigan v. Seminatore ,
the business records and does not contend it would be unfair under the circumstances to
accept the duplicate in lieu of the original. Appellant’s argument relates to whether Dienes
was qualified to authenticate the documents because she lacked firsthand knowledge
regarding their creation and whether the facts Dienes swore to in her affidavit regarding
the authenticity of the note and mortgage constituted hearsay. Appellant fails to set forth
any bona fide argument that the note and mortgage documents are not what they purport
to be and has not met his burden to demonstrate a genuine question as to the authenticity
of the duplicate copy of the note and mortgage introduced for the purposes of summary
judgment. Fannie May v. Bilyk , 10th Dist. Franklin No. 15AP-11,
affidavit in support of its motion for summary judgment. Appellant’s first assignment of error is overruled.
II. {¶31} In his second assignment of error, appellant contends the trial court erred in granting summary judgment because appellee failed to establish it was entitled to judgment as a matter of law. To рroperly support a motion for summary judgment in a foreclosure action,
a plaintiff must show:
(1) The movant is the holder of the note and mortgage, or is a party entitled to enforce the instrument;
(2) If the movant is not the original mortgagee, the chain of assignments and transfers;
(3) All conditions precedent have been met;
(4) The mortgage is in default; and
(5) The amount of principal and interest due. Wachovia Bank of Delaware, N.A. v. Jackson , 5th Dist. Stark No. 2010-CA-00291, 2011- Ohio-3202. To have standing to pursue a foreclosure action, a plaintiff “must establish
an interest in the note or mortgage at the time it filed suit.” Home Loan Mtge. Corp. v.
Schwartzwald ,
when the bank failed to provide and attach to Dienes’ affidavit business records which support a history of payment delinquency and default. However, this Court has held there is no requirement that a party seeking
foreclosurе submit a payment history to demonstrate entitlement to summary judgment.
Fifth Third Mtge. v. Fantine , 5th Dist. Fairfield No. 15-CA-5,
III. In his final assignment of error, appellant argues the trial court erred in granting appellee’s motion for summary judgment because there is a material fact in dispute on the issue of novation. Appellant contends he submitted evidence, in the form of his affidavit, that PNC Bank offered a new line of credit agreement and he accepted the agreement by sending payment to PNC Bank. *16 Novation is an affirmative defense. Sheet Metal Workers Nat’l Pension
Fund v. Bryden House Ltd. Partnership ,
amended pleading. Appellant first argued a novation existed in his response to appellee’s motion to summary judgment. Because appellant did not assert novation as an affirmative defense in the pleаdings, we find appellant has waived this issue pursuant to Civil Rule 8(C). See Hollish v. Maners , 5th Dist. Knox No. 2011CA000005, 2011-Ohio- 4823. Further, even if appellant did not waive this issue, we find the trial court did
not err in granting summary judgment to appellee on the novation issue. In order to effect a valid novation, all parties to the original contract must clearly and definitely intend the second agreement to be a novation and intend to completely disregard the original contract obligation. Boulden v. Boulden , 5th Dist. Richland No. 01-CA-21, 2001-Ohio- 1430. To be enforceable, a novation requires consideration and a novation can never be presumed. Id. “Intent, knowledge and consent are the essential elements in determining *17 whether a purported novation has been accepted.” Id. A party’s knowledge of and consent to the terms of a novation need not be express, but may be implied from circumstances or conduct. Id. There must be a common understanding between the parties to the arrangement, and a clear and definite expression of both knowledge and consent. Id. In this case, appellant failed to present any evidence that all parties to the
line of credit agreement and mortgage, including appellee and Alberta Price, consented to any change in terms or new obligations. While appellant stated in his affidavit that he and PNC Bank were negotiating an extension of the line of credit, appellant failed to submit any evidence demonstrating a clear and definite expression of consent by PNC Bank and/or Alberta Price to a new agreement. Further, as in Boulden v. Boulden , appellant offered no evidence of any consideration. Accordingly, even if appellant did not waive the defense of novation, appellant has failed to provide evidence to create a genuine issue of material fact with regards to novation. Appellant’s third assignment of error is overruled. *18 Based on the foregoing, we overrule appellant’s assignments of error. The
judgment entries of the Morgan County Court of Common Pleas are affirmed. By Gwin, P.J.,
Hoffman, J., and
Baldwin, J., concur