U.S. BANK TRUSTEE NA v. BLAYNE HERMAN, ET AL.
Case No. 14 CAE 04 0023
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
February 18, 2015
[Cite as U.S. Bank Trustee, N.A. v. Herman, 2015-Ohio-586.]
Hon. John W. Wise, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 13 CV E 06 0484; JUDGMENT: Affirmed
For Plaintiff-Appellee
JASON A. WHITACRE
ASHLEY E. MUELLER
4500 Courthouse Blvd., Suite 400
Stow, OH 44224
For Defendant-Appellant
FEISUL M. KHAN
The Law Offices of Tajuddin & Khan, LLC.
1675 Old Henderson Road
Columbus, OH 43220
Baldwin, J.
{¶1} Defendant-appellant Blayne Herman appeals from the March 13, 2014 Judgment Entry of the Delaware County Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE
{¶2} In 2005, appellant Blayne Herman and Shawn Herman signed a promissory note and agreed to secure that note with a mortgage on their real property.
{¶3} On June 3, 2013, HSBC Mortgage Services Inc. filed a complaint for foreclosure, declaratory judgment, and other equitable relief against appellant, Shawn Herman and the Delaware County Treasurer. The Delaware County Treasurer, on June 20, 2013, filed an answer and a cross-claim against appellant.
{¶4} Thereafter, appellant, on August 12, 2013, filed an answer and affirmative defenses. The Delaware County Treasurer, on August 27, 2013, filed a Notice of Voluntary Dismissal of its cross-claim without prejudice.
{¶5} HSBC Mortgage Services Inc., on October 11, 2013, filed a Motion to Substitute the Plaintiff, seeking to substitute appellee U.S. Bank Trust, N.A., as Trustee for LSF8 Master Participation Trust as the plaintiff. HSBC, in its motion, stated that the note and the mortgage that are the subject of this case had been assigned to appellee. The motion was granted pursuant to an Order filed on October 15, 2013.
{¶6} Subsequently, appellee, on November 7, 2013, filed a Motion for Summary Judgment against appellant. Appellee, on December 13, 2013, filed a Motion for Default Judgment against Shawn Herman. On February 18, 2014, appellant filed a response to appellee‘s Motion for Summary Judgment.
{¶8} Appellant now appeals, raising the following assignment of error on appeal:
{¶9} THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING PLAINTIFF-APPELLEE‘S MOTION FOR SUMMARY JUDGMENT BECAUSE THE AFFIDAVIT AND DOCUMENTS ATTACHED TO PLAINTIFF-APPELLANT‘S (SIC) MOTION WERE DEFECTIVE AND COULD NOT PROPERLY SUPPORT A MOTION FOR SUMMARY JUDGMENT.
STANDARD OF REVIEW
{¶10} Summary judgment motions are to be resolved in light of the dictates of
{¶11}
I
{¶13} Appellant, in the sole assignment of error, argues that the trial court erred in granting summary judgment in favor of appellee because the affidavit and documents attached to appellee‘s motion were defective. Appellant specifically contends that the trial court erred in relying on the affidavit of Isabel Melendez, along with the documents authenticated and attested to by her, because the affidavit was not based on personal knowledge.
{¶14}
Ohio courts have defined “personal knowledge” as “knowledge gained through firsthand observation or experience, as distinguished from a belief based upon what someone else has said.” Zeedyk v. Agricultural Soc. of Defiance County, Defiance App. No. 4–04–08, 2004–Ohio–6187, at paragraph 16, quoting Bonacorsi v. Wheeling & Lake Erie Railway Co. (2002), 95 Ohio St.3d 314, 320, 767 N.E.2d; Black‘s Law Dictionary (7th Ed. Rev.1999) 875. Affidavits, which merely set forth legal conclusions or opinions without stating supporting facts, are insufficient to meet the requirements of
Civ.R. 56(E) . Tolson v. Triangle Real Estate, Franklin App. No. 03AP–715, 2004–Ohio–2640, paragraph 12. However, self-serving affidavits may be offered relative to a disputed fact, rather than a conclusion of law. CitiMortgage, Inc. v. Ferguson, Fairfield App. No.2006CA00051, 2008–Ohio–556, paragraph 29. Ohio law recognizes that personal knowledge may be inferred from the contents of an affidavit. See Bush v. Dictaphone Corp., Franklin App. No. 00AP1117, 2003–Ohio–883, paragraph73, citing Beneficial Mortgage Co. v. Grover (June 2, 1983), Seneca App. No. 13–82–41. Lasalle at paragraphs 21–22. “Personal knowledge” has been defined as knowledge of factual truth which does not depend on outside information or hearsay.” * * * Further, “An affiant‘s mere assertion that he has personal knowledge of the facts asserted in an affidavit can satisfy the personal knowledge requirement of
Civ.R. 56(E) . See Bank One, N.A. v. Swartz, 9th Dist. No. 03CA008308, 2004–Ohio–1986, paragraph 14. A mere assertion of personal knowledge satisfiesCiv.R. 56(E) if the nature of the facts in the affidavit combined with the identity of the affiant creates a reasonable inference that the affiant has personal knowledge of the facts in the affidavit. Id.” Id. at para 26 and 27 (Citations omitted).
{¶16} See also Wells Fargo Bank, N.A. v. Dawson, 5th Dist. Stark No. 2013CA00095, 2014-Ohio-269.
{¶17} In her affidavit, Melendez stated, in relevant part, as follows:
{¶18} 1. That affiant is an employee of Caliber Home Loans, Inc., loan servicing agent for Substitute-Plaintiff, and is duly authorized to make this Affidavit;
{¶19} 2. That Substitute-Plaintiff is entitled to enforce the promissory note and mortgage, copies of which as executed at origination are referenced in Substitute-Plaintiff Complaint and attached hereto as Exhibits “A” and “B” respectively;
{¶21} 4. That Affiant has examined and has knowledge of the loan account of Defendants, Shawn M. Herman and Blayne A. Herman htta Blayne Herman; that there is presently due on said loan the unpaid principal balance of $164,217.25 with interest accruing thereon at the rate of 7.25% per annum from July 5, 2012; and at such interest rate as may change from time to time pursuant to the terms of the note; and that said account has been and remains in default;
{¶22} 5. That in the regular performance of my job functions; Affiant is familiar with business records maintained by Caliber Home Loans, Inc. for the purpose of servicing mortgage loans. These records (which include data compilations, electronically imaged documents, and others) are made at or near the time by, or from information provided by, persons with knowledge of the activity and transactions reflected in such records, and are kept in the course of business activity conducted regularly by Caliber Home Loans, Inc. It is the regular practice of the mortgage servicing business of Caliber Home Loans, Inc. to make these records. In connection with making this Affidavit, I have examined these business records reflecting data and information as of the date of the signing of this affidavit.
{¶23} She further stated that appellee was the assignee of the mortgage.
{¶24} We find that Melendez‘s affidavit meets the standards set forth in Wachovia Bank v. Jackson. From her position as business records custodian and her statement that she examined the records in this case, it may be reasonably inferred that
{¶25} Appellant‘s sole assignment of error is, therefore, overruled.
{¶26} Accordingly, the judgment of the Delaware County Court of Common Pleas is affirmed.
By: Baldwin, J.
Wise, P.J. and
Delaney, J. concur.