U.S. BANK, NATIONAL ASSOCIATION v. CARL LAVETTE, ET AL.
No. 101348
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 5, 2015
2015-Ohio-765
BEFORE: S. Gallagher, P.J., Blackmon, J., and E.T. Gallagher, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-13-814836
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 5, 2015
Marc E. Dann
Grace M. Doberdruk
The Dann Law Firm Co., L.P.A.
P.O. Box 6031040
Cleveland, OH 44103
ATTORNEYS FOR APPELLEE
John E. Codrea
Manley, Deas & Kochalski, L.L.C.
P.O. Box 165028
Columbus, OH 43216
Robert C. Folland
Barnes & Thornburg, L.L.P.
41 South High Street
Suite 3300
Columbus, OH 43215
John B. Kopf
Thompson Hine, L.L.P.
41 South High Street, 17th Floor
Columbus, OH 43215
{¶1} Defendant Carl LaVette appeals the trial court’s decision granting summary judgment upon the foreclosure action in the bank’s favor. For the following reasons, we affirm.
{¶2} This is a simple action in foreclosure. The plaintiff, U.S. Bank, National Association, as Successor Trustee to Bank of America, N.A., as Successor to LaSalle Bank, N.A., as Trustee for the Holders of Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-FF1 (“U.S. Bank”), filed a complaint alleging the right to foreclose on LaVette’s residential property and seeking a judgment upon the promissory note after LaVette defaulted. A copy of the mortgage, note, and assignment were attached to the complaint. There were other named defendants, although none appealed or contested the summary judgment decision in U.S. Bank’s favor. LaVette appealed the trial court’s decision, advancing four assignments of error, none of which have merit.
{¶3} In his first and third assignments of error, LaVette claims the trial court erred in excluding him from a default judgment hearing, held to resolve the claims against the third parties with potential lien interests in the residential property, and also erred because U.S. Bank improperly identified itself in the complaint. LaVette’s claims are supported neither by the record nor with reasons and citations pursuant to
{¶4} In LaVette’s second and fourth assignments of error, he claims the trial court erred by relying on an affidavit signed by a representative from the loan servicing company as evidence supporting U.S. Bank’s motion for summary judgment. LaVette’s final two assignments of error are without merit. Appellate review of summary judgment is de novo, governed by the standard set forth in
Summary judgment may be granted only when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party.
Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957, 991 N.E.2d 232, ¶ 7.
{¶5} LaVette superficially advanced several propositions in these assignments of error, such as the loan servicing company’s representative lacked firsthand information, the note attached was a copy of a copy, and the original note was never introduced into evidence. None of those claims was supported by citations to authority as required by
{¶6} LaVette’s claim that the affidavit presented by U.S. Bank was insufficient because the affiant authenticated copies of the electronically stored duplicates of the original — a copy of a copy — and did not contain an averment about U.S. Bank possessing the note is not supported by the record. See, e.g., Deutsche Bank Natl. Trust Co. v. Dvorak, 9th Dist. Summit No. 27120, 2014-Ohio-4652, ¶ 14.1 In this case, U.S. Bank’s representative averred based on personal knowledge that U.S. Bank possessed the promissory note executed by LaVette currently and before the filing of the complaint, and authenticated copies of the electronically stored duplicates of the originals. Nothing facially indicates that the affiant lacked firsthand knowledge to aver the electronically stored copy of the note, duplicated the original note, or that U.S. Bank possessed the note for purposes of filing and prosecuting the foreclosure.
{¶7} LaVette further failed to support his argument, that the original note must be included in the record in order for U.S. Bank to proceed to summary judgment, with any citations to authority. Generally in Ohio, copies of a note, mortgage, or an assignment of a mortgage are sufficient to establish holder status and grant judgment in foreclosure. Wells Fargo Bank, N.A. v. Murphy, 7th Dist. Mahoning No. 13 MA 35, 2014-Ohio-2937, ¶ 23, citing
{¶8} Notwithstanding, when distilled to its simplest form based on the arguments advanced, the crux of LaVette’s assigned errors is that a representative from the loan servicing corporation cannot provide the evidence satisfying a plaintiff’s burden upon summary judgment in a foreclosure action. On this point, LaVette is mistaken. In Ohio, an affidavit from a representative of the loan servicing company on behalf of the holder of the note and mortgage suffices for the purposes of resolving any motion for summary judgment. See, e.g., Fifth Third Mtge. Co. v. Salahuddin, 10th Dist. Franklin No. 13AP-945, 2014-Ohio-3304, ¶ 15 (summary judgment based on an affidavit from a loan servicing company’s representative affirmed), citing Regions Bank v. Seimer, 10th Dist. Franklin No. 13AP-542, 2014-Ohio-95, ¶ 19; Chase Home Fin., L.L.C. v. Dougherty, 10th Dist. Franklin No. 12AP-546, 2013-Ohio-1464; Deutsche Bank Natl. Trust Co. v. Germano, 11th Dist. Portage No. 2012-P-0024, 2012-Ohio-5833; JP Morgan Chase Bank, NA v. Ackerman, 5th Dist. Richland No. 13CA17, 2013-Ohio-5010.
{¶9} In support of a motion for summary judgment in a foreclosure action, a plaintiff must demonstrate with “evidentiary-quality materials”: (1) the plaintiff is the holder of the note and mortgage or is otherwise entitled to enforce the instrument; (2) the chain of assignments and transfers if applicable; (3) the mortgagor defaulted; (4) all conditions precedent have been met; and (5) the amount due. Hammond, 8th Dist. Cuyahoga No. 100141, 2014-Ohio-5270, ¶ 19, citing HSBC Bank U.S.A., N.A. v. Surrarrer, 8th Dist. Cuyahoga No. 100039, 2013-Ohio-5594, ¶ 16, and U.S. Bank, N.A. v. Adams, 6th Dist. Erie No. E-11-070, 2012-Ohio-6253, ¶ 10.
{¶11} The judgment of the trial court in favor of U.S. Bank is affirmed.
It is ordered that appellee recover of appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
EILEEN T. GALLAGHER, J., CONCUR