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IN THE SUPREME COURT OF OHIO

BANK OF AMERICA, N.A.

Appellee

-vs-

RUSSELL SAADEY

Appellant.

^ CASE NO. 'I A'^^.

* On Appeal from the Mahoning /County Court of Appeals, 7th

* District Appellate District CaseNo. 12-MA-196

^

X

MEMORANDUM IN SUPPORT OF JURISDICTION

Marc E. Dann 0039425The Dann Law Firm Co., LPAPO Box 6031040Cleveland, OH 44103216/373-0539216/373-0536 - faxnotices(a^dannlaw.com.Counsel for Def'endant-Appellants

Miranda HamrickRomi FoxLemer Sampson & RothfussPO Box 5480Cincinnati, OH 45201513/241-3100Counsel for Plaintiffs-Appellees

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1

Table of Contents

AN EXPLANATION OF WHY THIS CASE IS OF GREAT GENERAL INTEREST ................. 5

STATEMENT OF THE CASE AND THE FACTS ........................................................................ 7

The Complaint ............................................................................................................................ 7

Summary Judgment ..................................................................................................................... 7

The Trial Court's Decisions ........................................................................................................ 8

The Court of Appeals' Decision .................................................................................................. 8

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW .. ..................................................... 9

Proposition of Law No. 1: In order to establish standing in a foreclosure action, a plaintiffmust possess, at the institution of the suit, the right to enforce the debt secured by themortgage . .. ..... .. .. ... .. .. . .. . . . .. .. . . .. . . ... . . . .. .. . .... .. . ... . . . . . . .. . . .. .. . . ... .. . . .. ..... . .. .. ... . .. .... . ... .... .. ... ... . .. ... . .. .... . . . 9

Proposition of Law No. 2: Information obtained from. an affiant's review of hearsay businessrecords is insufficient to provide the personal knowledge required to satisfy Civ. R. 5 6(E). ...11

Proposition of Law No. 3: An affiant who claims personal knowledge based solely upon areview of business records may not provide testimony about facts not contained in properlyauthenticated business records provided to the court in accordance with Civ.R. 56(E). .......... 12

Proposition of Law No. 4: An affiant may not authenticate a business record of an entity withwhich she has no affiliation without providing proper foundation for admission of the record.................................................................................................................................................... 13

Proposition of Law No. 5: In an action to enforce a negotiable instrument, person againstwhom the instrument is sought to be enforced is entitled to inspect the instrument upon motionto the court . ............................................................................................................................... 14

Proposition of Law No. 6: When coriducting a de novo review of a grant of summaryjudgment, a court of appeals may not consider unauthenticated documents not relied upon bythe movant to support its motion in the trial court .................................................................... 15

CONCLUSION .. ............................................................................................................................ 16

CERTIFICATE OF SERVICE ...................................................................................................... 17

APPENDIX ................................................................................................................................... 18

2

CasesAdams v. Madison Realty & Development, Inc., 853 F.2d 163, 168 (3d Cir.1988) ...................... 15BAC Home Loan Serv v. McFerren, 2013-Ohio-3228, 9th Dist. No. 26384 ................................. 5Bank ofAmerica v. Saadey, 2014-Ohio-3569 ........................................................ 9.........................Bank ofAmerica, NA. v. Loya, 9th Dist. Summit No. CA26973, 2014-Ohio-2750 .................. 6, 12Bank ofAmerica, NA., v. Pasqualone, 10th Dist. Franklin No. 13AP-87, 2013-Ohio-5795 ...... 15Bonacorsi v. Wheeling & Lake Erie Ry. Co., 767 N.E.2d 707, 95 Ohio St.3d 314, 2002-Ohio-

2220 (Ohio 2002) .................................................................................................................11, 13Carpenter v Longan, 83 U.S. 271, 274, 21 L.Ed. 313 (1873) ....................................................... 10Citizens Ins. Co. v. Burkes (1978), 56 Ohio App.2d 88, 95-96 ...................................................... 16Countrywide Home Loan Servicing v. Nichpor 136 Ohio St.3d 55 (2013) ....................................11Deutsche Bank Natl. Trust v Brumbaugh, 2012 OK 3, 270 P.3d 151 .......................................... 10Douglass v. Salem Cmty. Hosp., 153 Ohio App.3d 350, 360, 2003-Ohio-4006 ........................... 16Dresher v. Burt, 662 N.E.2d 264, 75 Ohio St.3d 280, 293, 1996-Ohio-107 (Ohio 1996) ............ 16Estate Plan. Legal Services, P.C. v. Cox, 2008-Ohio-2258, Warren App. Nos. CA2006-11-140,

CA2006-12-141 ................................................................................................................... ..... 12First Knox National Bank v. Peterson, 2009-Ohio-5096, ¶18 (5th Dist. No. 08CA28) ............... 10Georg v 1Vetro Fixtures Contractors, Inc., 178 P.3d 1209, 1213 (Col.o.2008) ............................ 14HSBC Bank USA N.A. v. Thompson, 2nd Dist. Montgomery No. 23761, 2010-Ohio-4158 ...... 15In re Miller, 666 F.3d 1255, (10th Cir. 2012) ............................................................................... 14In re Veal, 450 B.R. 897, 910 (9th Cir.BAP 2011)......... ............................................................... 15Int'l Brotherhood Of Electrical Workers, Local No. 8 v. Hyder, 6th Dist. No. WD03067, 04-LW-

2785, 2004-Ohio-3460 .............................................................................................................. 16Kernohan v Manss, 53 Ohio St. 118, 133, 41 N.E. 258 (Ohio 1895) .......................................... 10National City Bank v Skipper, 2009-Ohio-5940, ¶25 (9th Dist. No. C.A. 24772) ....................... 10National City Bank, Dayton v. Ohio National Lif'e Assurance Corp., 111 Ohio App.3d 387, 31

(Hamilton Co. 1996) ................................................................................................................. 14Residential Funding Co., LLC v Thorne, 6th Dist. No. L-09-1324, 2010-Ohio-4271 ..............9, 11Richardson v. Girl Scouts ofNorth East Ohio, 10th Dist. Franklin No. 27127, 2014-Ohio-1036 16Sparks v. Erie Cty. Bd. of Commrs. (Jan. 16, 1998), 6th Dist. No. E-97-007) .............................. 16SRMOF Trust 2009-1 v Lewis, Case No. 2014-0485 ................................................................. 5, 9St. Paul Fire & Marine Ins. Co. v. Ohio Fast Freight, Inc. (1982), 8 Ohio App.3d 155, 456

N.E.2d 551) ................................................................................................................................11St. Paul Fire & Marine Ins. Co. v Ohio Fast Freight, Inc., 8 Ohio App.3d 155, syll. ¶1 (Franklin

Co. 1985) ................................................................................................................................... 12State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 223, 631

N.E.2d 150 .................................................................................................................... ........ 13State ex rel. Corrigan v Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (Ohio 1981) ...... 12TPIAsset Mgt. v. Conrad-Eiford, 2"d Dist. Clark No. 10CA0044, 193 Ohio App.3d 38, 2011-

Ohio-1405 .................................................................................................. .............6, 11Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. No. 2010-CA-00291, 2011-Ohio-3202 14Wells Fargo Bank, NA. v Smith, 12th Dist. Brotivn, No. CA12-04-006, 2013-Ohio-0855 ............. 6

3

StatutesRevised Code § 1303.31 ...........................................................................................................11, 14Revised Code § 1303.58(B) ........................................................................................................... 15Revised Code § 1303.67(A) ..................................................................................................... 14,15Revised Code Chapter 1303 ............................................................................................................ 6

Other AuthoritiesBlack's Law Dictionary (7th Ed.Rev. 1999) .................................................................................. 13Miller & Harrell, supra, ¶ 6.03 [6] [b] [ii] ....................................................................................... 15The Restatement of the Law 3d, Property, Mortgages, Section 5.4(e), at 385 (1996) .................. 10Weissenberger's Ohio Evidence (2002) 213, Section 602.1 ......................................................... 13

RulesCiv. R. 56(E) ................................................................................................................................ 13Civ.R. 56(C) .......................................................................................... ........... 16Civ.R. 56(E) .................................................................................. .............................5,9,11,12,13Evid. R. 602 ................................................................ .................................................................. 13Evid. R. 803 ................................................................................................................................... 13Evid. R. 803(6) .......................................................................................................................... 9, 13

RegulationsUCC § 3-418(b) ................................................................................................ ... 15UCC § 3-602(a) ............................................................................. .... 15UCC § 3-602(c) ..................................................................................... ........ 15

4

AN EXPLANATION OF WHY THIS CASE IS OF GREAT GENERALINTEREST

This case is of great general interest for three distinct reasons. First, this case allows the

court to expand on an issue of law that is currently pending before this Court. Second, the case

involves evidentiary issues that, although not uncommon in years past, are now becoming all too

common in foreclosure cases and consumer collection cases across the state. The expansion of

the secondary market, sophisticated securitization structures for consumer debt, and the frequent

transfer of servicing rights for residential mortgages, present new evidentiary issues which the

Courts of this state are struggling to address. Third, this case presents an issue that is unique to

the area of negotiable instruments - the fundamental requirement that demonstrate, with credible

and admissible evidence, that it was in actual physical possession of the Note when suit is filed.

Saadey's first proposition of law is currently pending before the Court in SRMOF Trust

2009-1 v. Lewis, Case No. 2014-0485. In Lewis, the Court accepted a conflict certified by the

Twelfth District Court of Appeals on the following question:

In order to establish standing in a foreclosure action and invoke the jurisdiction ofthe common pleas court, must a plaintiff establish at the time complaint forforeclosure is filed that it has an interest in both the note and mortgage, or is itsufficient if the plaintiff demonstrates an interest in either the note or themortgage?

The Court's decision in Lewis conflicts witlz the decision of the Ninth District Court of Appeals

in BAC Home Loan Serv v. McFerren, 2013-Ohio-3228, 9th Dist. No. 26384. Because one of the

legal issues presented in this case is currently before the Court, Saadey submits that this case is

of great general interest.

Second, the case presents several related issues regarding the standard for affidavits in

summary judgment proceedings. Over the past few years, Ohio's Courts of Appeals have taken

disparate approaches to the requirements of an affidavit under Civ.R. 56(E). Some of the issues

5

relates to the personal knowledge of the affiant. Compare Wells Fargo Bank, N.A. v. Smith, 12th

Dist. Brown, No. CA12-04-006, 2013-Ohio-0855, ¶39. ("Generally, "a mere assertion of

personal knowledge satisfies the personal knowledge requirement of Civ.R. 56(E) . ..") with TPI

Asset Mgt. v. Conrad-Eiford, 2°d Dist. Clark No. 10CA0044, 193 Ohio App.3d 38, 2011-Ohio-

1405, ^, 22 ("'The affiant Hunter's statement that " I am authorized on behalf of Chase Bank USA,

N.A. to make this affidavit" is insufficient to demonstrate that he has any personal knowledge of

the facts that the affidavit contains."). Other issues relate to document authentication. Compare

Bank of America, N.A. v. Loya, 91h Dist. Summit No. CA26973, 2014-Ohio-2750, ¶14 ("Having

reviewed the business records attached to Ms. Littlejohn's affidavit, we cannot conclude that a

review of the records would have allowed her to attest to the fact that Bank of America was in

possession of Mr. Loya's note at the time it filed suit against him.") In the instant case, the

Affiant merely averred she was 18 years old and familiar with Bank of America's records ("Fazio

averred that she had personal knowledge of the documentation associated with Jackson's loan,

and that she further gained personal knowledge of the related issues by reviewing several

documents, which were attached to her affidavit."). These drastically different standards create

confiision for litigants and judges alike. Depending on the appellate district a litigant is in, very

different rules regarding affidavit testimony apply. The need for uniformity in the application of

the Rules of Evidence and Rules of Civil Procedure make this case one of great general interest.

Finally, this case highlights an aspect of negotiable instruments that Ohio courts have

only recently started to explore. As the Court is aware, the promissory notes used in most

residential mortgage loans are "negotiable instruments" under Revised Code Chapter 1303, a

part of the Uniform Commercial Code as adopted in Ohio. Unlike other contracts, a negotiable

instrument can only be enforced by a limited class of persons defined by statute. And for the

6

most part, such a person must, at a minimum, possess the original instrument. Further, the

entitlement to enforce the instrument is often governed by the endorsements found on the face of

the original instrument. Thus, the obligation of an issuer of a negotiable instrument, i.e. who that

issuer must pay, is controlled solely by the possession of, and endorsements on, the original note

itself. This case presents the issue of whether an Ohio homeowner is entitled to inspect the

negotiable instrument he is being sued on to ensure that the party suing is actually the person

entitled to collect on the note and discharge the issuers obligations under it. This issue implicates

not only the merits of the claim itself, but also matters of standing. For these reasons, the case is

of great general interest.

STATEMENT OF THE CASE AND THE FACTS

This appeal is from the grant of summary judgment in a residential foreclosure matter.

7he Complaint

Bank of America, N.A. ("BANA") filed this foreclosure action in February 2012. In its

Complaint, BANA claimed it was in possession of the note, attached a photocopy of the Note

indorsed in blank. BANA further claimed that it was the holder of the Mortgage, however, the

Mortgage attached to the Complaint was in the name of Countrywide Bank FSB and an

assignment to BAC Home Loans Servicing LP fka Countrywide Home Loans Servicing and not

BANA. Further attached to the Complaint was a series of unauthenticated merger documents

that BANA failed to authenticate in its Motion for Summary Judgment. As a result, the merger

documents were not properly before the court.

Summary Judgment

Later, when BANA filed its motion for summary judgment, it supported the motion with

the fill in the blank affidavit of Shelly Rae Fazio, an officer of BANA. Ms. Fazio did not give the

7

court any information regarding her job duties and/or responsibilities. There is nothing contained

within the affidavit that would offer the reader any indication whatsoever what Ms. Fazio did on

a day-to-day basis or how she would have obtained personal knowledge of the material attached

to her affidavit. Fazio testified at '[2 that BANA maintains records and she is familiar with the

type of records that BANA maintains. There is no testimony or records offered to evidence a

merger.

1. An Account Information Statement, which is not identified with an exhibit letter.

2. Exhibit A - A duplicate copy of the Note. The copy of the note bears anendorsement in blank, however the Affiant never attested that she compared thecopy with the original.

3. Exhibit B - A copy of the Mortgage.

4. Exhibit C -An Assignment of Mortgage that assigns the mortgage to BAC HomeLoans Servicing and not BANA.

Conspicuous by its absence is any Notice of Intent to Accelerate the Note or Mortgage as

required by both the Note and Mortgage.

Ms. Fazio testified, "Bank of America, N.A. has possession of the note." She did not,

however, identify the note she was referring to. Nor did she offer any testimony regarding when

BANA obtained possession of the note. She also testified that °`[t]he indebtedness has been

accelerated."

The Trial Court's Decisions

The trial court granted BANA's motion for summary judgment in rather summary fashion

and concluded that the Affiant Ms. Fazio had personal knowledge of the material contained in

her affidavit, merely because she said so.

The Court of Appeals ' Decision

The Court of Appeals affirmed the trial court in all respects. Bank of AJnerica v. Saadey,

8

2014-Ohio-3569. It found that Ms. Fazio's affidavit was unobjectionable because of its

incantation of personal knowledge. It did not reconcile the limited basis for her personal

knowledge with her testimony as to matters wholly outside of that personal knowledge.

Therefore, Saadey stands for the proposition of law that any employee of any bailk may

authenticate and offer into evidence any document found within the bank's filing system and that

Evid R. 803(6) is not applicable to actions wherein the equitable remedy of foreclosure is sought.

Appellant has not identified any flaw in the affidavit filed in this case that wouldindicate that the affiant lacks the necessary personal knowledge. Absence proofthat the affidavit is insufficient, the general rule applies: "[a] mere assertion ofpersonal knowledge satisfies [XX11] Civ.R. 56(E) if the nature of the facts in theaffidavit combined with the identity of the affiant creates a reasonable inferencethat the affiant has personal knowledge of the facts in the affidavit." ResidentialFunding Co., LLC v. Thorne, 6th Dist. No. L-09-1324, 2010-Ohio-4271.

[*P15] In focusing his argument on the allegedly flawed affidavit, Appellantneglects to address the purported crux of his appeal, which is Appellee's legalstatus as a holder entitled to enforce the note and mortgage

While certain Courts of Appeals in Ohio demand that affidavits offered in support of motions for

summary judgment contain foundational testimony to demonstrate personal knowledge, other

courts, such as the Seventh hold that the mere averment of personal knowledge is sufficient.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1: In order to establish standing in a foreclosure action, a plaintiffmustpossess, at the institution of the suit, the right to enforce the debt secured by themortgage.

This proposition of law is currently pending before the Court in SRMOF Trust 2009-1 v.

Lewis, Case No. 2014-0485. In Lewis, the Court accepted a conflict certified by the Twelfth

District Court of Appeals on the following question:

In order to establish standing in a foreclosure action and invoke the jurisdiction ofthe common. pleas court, must a plaintiff establish at the time complaint forforeclosure is filed that it has an interest in both the note and mortgage, or is itsufficient if the plaintiff demonstrates an interest in either the note or the

9

mortgage?

The case is in the briefing process. Saadey respectfully suggests that the same question of law is

present in this case.

This Court long ago held that in a real estate mortgage loan transaction the note

represents the debt, and the mortgage is a mere incident to the note. Kernohan v. Manss, 53 Ohio

St. 118, 133, 41 N.E. 258 (Ohio 1895). And "[b]eing but an incident of the debt, the mortgage

remains, until foreclosure or possession taken, in the nature of a chose in action." Id. As such, the

mortgage "has no determinate value apart from the notes, and, as distinct from them, is not a fit

subject of assignment." Id. p. 132. The U.S. Supreme Court has gone fuither and stated that "an

assignment of the [mortgage] alone is a nullity." Carpenter v. Longan, 83 U.S. 271, 274, 21

L.Ed. 313 (1873).

The Restatement of the Law 3d, Property, Mortgages, Section 5.4(e), at 385 (1996)

supports this position. "[I]n general a mortgage is unenforceable if it is held by one who has no

right to enforce the secured obligation" Id. Even in Schwartzwald, this Court intimated that

standing to sue in foreclosure was limited to those who were entitled to enforce the note.

Schwartzw°ald ¶27 (citing Deutsche Bank Natl. Trust v. Brumbaugh, 2012 OK 3, 270 P.3d 151, ¶

11 ("If Deutsche Bank became a person entitled to enforce the note as either a holder or

nonholder in possession who has the rights of a holder after the foreclosure action was filed, then

the case may be dismissed without prejudice * * *" [emphasis added])).

This rule makes sense. Foreclosure is a two-step process in Ohio. First Knox Ncrtional

Bank v. Peterson, 2009-Ohio-5096, ¶18 (5th Dist. No. 08CA28). Only after the court determines

liability on the underlying obligation can it move to the foreclosure of the mortgage. Id. See also,

National City Bank v. Skipper, 2009-Ohio-5940, ¶25 (9th Dist. No. C.A. 24772). A foreclosure

10

action is really a proceeding to aid in execution of a judgment. Countr"ywide Home Loan

Servicing v Nichpor 136 Ohio St.3d 55 (2013).

Revised Code §1303.31 limits to a few carefully defined classes of persons who may

enforce a promissory note. To permit the naked holder of the mortgage, a person who is not

permitted by statute to sue on the note itself, to bring suit disturbs this legislatively created

scheme. It would permit persons to invoke the jurisdiction of the common pleas court for a

remedy even when that remedy can never be granted in the absence of the debt.

Proposition of Law No. 2: Information obtained from an affiant's review of hearsay businessrecords is insufficient to provide the personal knowledge required to satisfy Civ. R. 56(E).

In Bonacorsi v. Wheeling & Lake Erie Rv. Co., 767 N.E.2d 707, 95 Ohio St.3d 314, 2002-

Ohio-2220 (Ohio 2002), this Court stated: "Personal knowledge" is "[k]nowledge gained through

firsthand observation or experience, as distinguished from a belief based on what someone else

has said." Id. ¶26. The Sixth District Court of Appeals has stated that "[p]ersonal knowledge has

been defined as knowledge of factual truth which does not depend on outside information or

hearsay." Residential Funding Company v. Thorne, 6th Dist Lucas No. L-09-1324, 2010-Ohio-

4271, T64. And the Second District has held that "[h]earsay knowledge based on the affiant's

review of hearsay business records, for example, is insufficient." TPI Asset Mgt. v. Conrad-

Eiford, 950 N.E.2d 1018, 193 Ohio App.3d 38, 2011-Ohio-1405, 2"d Dist. No. 10-CA-0044, ¶24

(citing St. Paul Fire & Har°ine Ins. Co. v. Ohio Fast Freight, Inc. (1982), 8 Ohio App.3d 155,

456 N.E.2d 551).

The personal knowledge requirement of Civ.R. 56(E) cannot be cast aside as a matter of

convenience. Either an affiant has personal knowledge or she doesn't. There is no basis in Ohio

law for someone to claim personal knowledge simply by reading a piece of paper. If so, then

11

every middle school student in the state can claim personal knowledge of the signing of the

Declaration of Independence because they read a text book entry about it.

Proposition of Law No. 3: An affiant who claims personal knowledge based solely upon areview ofbusiness records may not provide testimony aboutfacts not contained in properlyauthenticated business records provided to tiae court in accordance with Civ.R. 56(E).

If an affiant is testifying as to information contained within documents, she must produce

to the Court the documents themselves. Civil Rule 56(E) provides very stringent standards for

the form and content of affidavits subrnitted in support of, or opposition to, a motion for

summary judgment. The rule provides, in relevant part:

(E) Form of affidavits; further testimony; defense required. Supporting andopposing affidavits shall be made on personal knowledge, shall set forth suchfacts as would be admissible in evidence, and shall show affirmatively that theaffiant is competent to testify to the matters stated in the affidavit. Sworn orcertified copies of all papers or parts ofpapers referred to in an affidavit shall beattached to or served with the affldavit. The court may permit affidavits to besupplemented or opposed by depositions or by further affidavits. * * *

(emphasis added). Therefore, an affidavit used to support summary judgment must have

attached to it copies of all papers to which it refers. State ex rel. Corrigan v Seminatore, 66 Ohio

St.2d 459, 467, 423 N.E.2d 105 (Ohio 1981); Estate Plan. Legal Services, P.C. v. Cox, 2008-

Oluo-2258, Warren App. Nos. CA2006-I1-140, CA2006-12-141, ^26. Further, there is no

hearsay exception allowing a witness to give testimony of the content of business records based

solely on a review of those records. St. Paul Fire & Marine Ins. Co. v. Ohio Fast Freight, Inc., 8

Ohio App.3d 155, syll. ¶1 (Franklin Co. 1985).

The Ninth District considered another Bank of America affidavit in Bank qf America,

N.A. v. Loya, 9th Dist. Summit No. CA26973, 2014-Ohio-2750. It found that an affidavit based

on personal review of business records could not permissibly assert facts not contained within

the documents produced with the affidavit. And it specifically considered whether a review of

12

records could have provided a basis for the affiant to testifv to the possession of the note:

"Having reviewed the business records attached to Ms. Littlejohn's affidavit, we cannot conclude

that a review of the records would have allowed her to attest to the fact that Bank of America

was in possession of Mr. Loya's note at the time it filed suit against him." ¶14.

The holding of the Ninth District is sound. It comports with both the requirements of Civ.

R. 56(E) and those of Evid. R. 803.

Proposition of Law No. 4: An affiant may not authenticate a business record of an entity withwhich she has no affiliation without providing properfoundation for admission of the record.

In Bonacorsi V. Wheeling & Lake Erie Ry. Co., 767 N.E.2d 707, 95 Ohio St.3d 314, 2002-

Ohio-2220 (Ohio 2002), this Court stated:

Civ.R. 56(E) requires that affidavits supporting motions for summary judgment bemade on personal knowledge. State ex rel. Cassels v. Dayton City School Dist. Bd.of Edn. (1994), 69 Ohio St.3d 217, 223, 631 N.E.2d 150. For obvious reasons, thisis the same standard as applied to lay witness testimony in a court of law. Id.;Evid. R. 602. "Personal knowledge" is "[k]nowledge gained through firsthandobservation or experience, as distinguished from a belief based on what someoneelse has said." Black's Law Dictionary (7th Ed.Rev.1999) 875. See, also,VVeissenberger's Ohio Evidence (2002) 213, Section 602.1 ("The subject of awitness's testimony must have been perceived through one or more of the sensesof the witness. ***[_A] witness is 'incompetent' to testify to any fact unless he orshe possesses firsthand knowledge of that fact.").

A testifying witness must, then, provide the court with sufficient evidence to establish

both the requisite personal knowledge to provide foundation evidence to admit a business record

and the actual foundation evidence for the admission of the documents itself. This requires an

affiant to first explain why she possesses the requisite knowledge to authenticate a business

record. Once the required personal knowledge is established, then the affiant must satisfy the

elements of Evid. R. 803(6) to remove the document from operation of the hearsay rule.

In Wachovia Bank of Delaware, N.A. v. ,Iackson, 5th Dist. No. 2010-CA-00291, 2011-

13

Ohio-3202, the Court addressed whether an employee of one company could lay the proper

foundation to authenticate the business record of another company. In reversing a grant of

summary judgment, the court rejected an affidavit in which the affiant, an employee of an entity

other than the plaintiff bank, did not establish that she could have personal knowledge of anotber

company's records or practices. Id. ¶28.

This is not to say that such authentication is not possible. But at a minimum, an affiant

must provide the Court with sonie background evidence as to how she has the requisite

knowledge to provide proper evidentiary foundation.

Proposition of Law No. 5: In an action to enforce a negotiable instrument, person againstwhom the instrument is sought to be enforced is entitled to inspect the instrument upon motionto the court.

In Ohio, a negotiable instrument tells its own story. From its face, a person should be able

to tell who owes whom. National City Bank, Dayton v. Ohio National Life Assurance Corp., 111

Ohio App.3d 387, 31 (Hamilton Co. 1996). Under the U.C.C., the person entitled to payment is

defined as a"person entitled to enforce" the note. Revised Code § 1303.31. And possession of the

note is a critical element to determining holder status or the rights of a holder. In re Miller, 666

F.3d 1255, (10th Cir. 2012).

"Possession is an element designed to prevent two or more claimants from qualifying asholders who could take free of the other party's claim of ownership." Georg v. MetroFixtures Contractors, Inc., 178 P.3d 1209, 1213 (Colo.2008) (citation omitted)." Withrare exceptions, those claiming to be holders have physical ownership of the instrumentin question." Id. (citation omitted).In the case of bearer paper such as the Note, physicalpossession is essential because it constitutes proof of ownership and a consequent right topayment." Id. at pp. 1263-64.

Pursuant to Revised Code §1303.67(A), only payment to a person entitled to enforce a

negotiable instrument discharges the maker's liability on the note. "Subject to division (B) of this

section, an instrument is paid to the extent payment is made by or on behalf of a party obliged to

14

pay the instrument and to a person entitled to enforce the instrument." Id. Therefore, the issuer of

a negotiable iiistrument will be exposed to double liability on the same debt if they pay someone

other than the person entitled to enforce the instrument.

[I]f a maker pays a "person entitled to enforce" the note, the maker's obligationsare discharged to the extent of the amount paid. UCC § 3-602(a) [Revised Code§ 1303.67(A) ]. Put another way, if a maker makes a payment to a "person entitledto enforce," the obligation is satisfied on a dollar for dollar basis, and the makernever has to pay that amount again. Id. See also UCC § 3-602(c) [Revised Code§1303.67(A)].

If, however, the maker pays someone other than a"person entitled to enforce"-even if that person physically possesses the note the maker signed-the paymentgenerally has no effect on the obligations under the note. The maker still owes themoney to the "person entitled to enforce," Miller & Harrell, supra, ¶6.03 [6] [b] [ii], and, at best, has only an action in restitution to recover themistaken payment. See UCC § 3-418(b) [Revised Code §1.303.58(B)].

Bank of America, N.A., v Pasqualone, 10th Dist. Franklin No. 13AP-87, 2013-Ohio-5795, ¶26

(quoting In re Veal, 450 B.R. 897, 910 (9th Cir.BAP 2011). See also HSBC Bank USA, N.A. v.

Thompson, 2nd Dist. Montgomery No. 23761, 2010-Ohio-4158, ^ 71-72, (quoting Adams v.

Madison Realty & Development, Inc., 853 F.2d 163, 168 (3d Cir.1988) ("[F]rom the maker's

standpoint: `it becomes essential to establish that the person who demands payment of a

negotiable note, or to whom payment is made, is the duly qualified holder. Otherwise, the obligor

is exposed to the risk of double payment, or at least to the expense of litigation incurred to

prevent duplicative satisfaction of the instrument.' ")).

As a practical matter, aii inspection of the original note is the only way to determine who

is entitled to enforce it. For only through examining the original can any person know for certain

who possesses the note and what endorsements appear on its face.

Proposition of Law No. 6: When conducting a de novo review of a grant ofsummaryjudgment, a court ofappeals may not consider unautlienticated documents not relied upon by

15

the movant to support its motion in the trial court.

On summary judgment, "the moving party bears the initial burden of demonstrating that

there are no genuine issues of material fact concerning an essential element of the opponent's

case. To accomplish this, the movant must be able to point to evidentiary materials of the type

listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher v. Burt,

662 N.E.2d 264, 75 Ohio St.3d 280, 293, 1996-Ohio-107 (Ohio 1996). Thus, it is the duty of the

movant to identify what evidence in the record it is relying on to support its motion. Thus, it is

improper for an appellate court to base its de novo review on matters neither identified by the

movant nor considered by the trial court. See Richardson v. Girl Scouts of North East Ohio, 10th

Dist. Franklin No. 27127, 2014-Ohio-1036, ¶39.

This rule is doubly true regarding matters contained in the record that are not properly

unauthenticated. "Unauthenticated documents which are not sworn, certified, or authenticated by

way of affidavit have no evidentiary value and may not considered by the trial court." Int'l

Brotherhood Of Electrical Workers, Local No. 8 v. Hyder, 6`h Dist. No. WD03067, 04-LW-2785,

2004-Ohio-3460, ¶19 (J. Lanzinger) (citing Douglass v. Salem Cmty. Hosp., 153 Ohio App.3d

350, 360, 2003-Ohio-4006, ¶25; Citizens Ins. Co. v. Burkes (1978), 56 Ohio App.2d 88, 95-96;

Sparks v. Erie Cty. Bd of Commrs. (Jan. 16, 1998), 6th Dist. No. E-97-007).

If a trial court may not consider unauthenticated documents in deciding summary

judgment, neither may a court of appeals do so during its de novo appellate review.

CONCLUSION

For these reasons set forth above, Appellant Russell Saadey requests that the Court accept

jurisdiction over this case and decide the propositions of law contained herein.

16

Respec umitted,

/ ...^._.__

Marc E. Dann 0039425The Dann Law Firm Co., LPAPO Box 6031040Cleveland, OH 44103216/373-0539216/373-0536 - faxnoticesLa,dannlaw. com.C©unsel for Defendant-Appellants

CERTIFICATE OF SERVICE

A copy of the foregoing has been served by ordinary U. S. Mail on this 29th day ofSeptember 2014 upon the following:

Miranda HamrickRomi FoxLerner Sampson &Rothfuss120 East 4th Street, 8'h FlCincinnati, OH 45202Attorney for Plaintiffs-Appellees

Lori White Laisurec/o ND of Ohio801 Superior Ave, #400Cleveland, OH 44113Attorney for USA

Matthew Gianinni1040 S. Common Place,#200Youngstown, OH 44514Attorney for Villas atLakewoodCondominium

MTG ElectronicRegistration Systems1901 East VoorheesStreet, Suite CDanville, IL 61834

William Urban434 High Street, NEWarren, OH 44481Attorney for HomeSavings & Loan

Marc E. Dann 0039425

APPENDIX

A. Court of Appeals Decision and Judgment

B. Trial Court's Decision Granting Summary Judgment

18

STATE OF OHIO

MAHONING COUNTY

BANK OF AMERICA

IN THE COURT OF APPEALS OF OHIO))) SS: SEVENTH DISTRICT

PLAINTIFF-APPELLEE

VS.

RUSSELL SAADEY, et al.

DEFENDANTS-APPELLANTS

CASE NO. 12 MA 196

JUDGMENT ENTRY

For the reasons stated in the Opinion rendered herein, the assignments of

error are overruled and it is the final judgment and order of this Court that the

judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed.

Costs to be taxed against Appellant.

AAi

7&1 x^4i^^v

JUDGES.

201200196III^IIN^IIIlIl^II1^{{{IIIII^II{^^IlI^{^Nf^lll{{i^ 99 81s

STATE OF OHIO, MAHONING COUNTY ..,...... . . .. /r ^^1

f

INTHECOURTOFAPPEALS

SEVENTH DISTRICT

BANK OF AMERICA

PLAINTIFF-APPELLEE

VS.

RUSSELL SAADEY, et al.

DEFENDANTS-APPELLANTS

CHARACTER OF PROCEEDINGS:

JUDGMENT:

APPEARANCES:

For Plaintiff-Appellee:

For Defendant-Appellant:

JUDGES:

Hon. Cheryl L. WaiteHon. Joseph J. VukovichHon. Mary DeGenaro

001964870204

MEMO

CASE NO. 12 MA 196

OPINION

Civil Appeal from the Court of CommonPleas of Mahoning County, OhioCase No. 12 CV 338

Affirmed.

Atty. Patricia K. BlockAtty. Romi T. FoxLerner, Sampson & Rothfuss120 East Fourth Street, Suite 800Cincinnati, Ohio 45202-4007

Atty. Andrew R. ZellersRichard G. Zellers & Associates, Inc.3810 Starrs Centre Dr.Canfield, Ohio 44406

Dated: August 14, 2014

-1-

WAITE, J.

{11} Appellant, Russell Saadey, appeals the decision of the Mahoning

County Court of Common Pleas granting summary judgment in a foreclosure action

filed by Appellee, Bank of America, N.A. His challenge is based on the sufficiency of

the evidence establishing Appellee's standing to file suit as the real party in interest.

Appellant's three assignments of error are without merit and are overruled. The

judgment of the trial court is affirmed.

Factual and Procedural History

{12} Appellee, Bank of America, N.A., filed its foreclosure action against

Appellant, Russell Saadey on February 6, 2012. Appellee named a number of

additional parties who might hold an interest in the property, including the

condominium association and the federal government. These additional claims

(including a cross-claim by the condominium association) and defendants are not at

issue in this appeal.

{13} Appellee at#ached copies of the subject note and mortgage, which

reflect that Appellant was unmarried when he executed the note as a sole promisor in

May of 2007 to the original lender, Countrywide Bank, FSB. Two additional

indorsements on the last page of the note indicate that the note was transferred via

specific indorsement from Countrywide Bank, FSB, to Countrywide Home Loans, Inc.

and then indorsed in blank by Countrywide Home Loans, Inc. The mortgage

attached to the complaint was executed on the same day between the same parties:

Russell Saadey and Countrywide Bank, FSB. A copy of an assignment of mortgage,

-2-

which was executed on July 9, 2009 by Shellie Hill on behalf of Mortgage Electronic

Registration System, Inc. ("MERS") "as nominee for Countrywide Bank, FSB, its

successors and assigns" and purported to transfer the subject mortgage to "BAC

Home Loans Servicing, L.P., fka Countrywide Home Loans Servicing, L.P."

(2/6/12 Complaint, Exh. C.) Also attached to the complaint is a copy of a certificate

of merger from the office of the Secretary of State of Texas which shows that BAC

Home Loans Servicing, L.P. merged into Bank of America, N.A. and a copy of a

second Texas document showing an amendment to a certificate of limited

partnership and changing the name of the partnership from Countrywide Home

Loans Servicing, L.P. to BAC Home Loans Servicing, L.P. as of April 27, 2009.

(2/6/12 Complaint, Exh. D & E.) Appellee also included a notice of a federal tax lien

against Appellant's property in the amount of $24,879.62. (2/6/12 Complaint, Exh.

F.)

(14) Appellant filed an answer to the complaint on April 24, 2012 after he

was granted leave by the trial court. Appellant's answer contains a general denial of

the allegations in the complaint, with the exception of the fact that the mortgage was

filed and appears in the county recorder's records. Appellant did not assert any

counterclaims or defenses. Appellee filed a motion for summary judgment and

affidavit in support of the motion on July 19, 2012. According to the affidavit offered

in support, Appellant failed to make the payment due on January 1, 2009 and has not

made any subsequent payment. The affiant, Shelley Rae Fazio, Assistant Vice

President of Bank of America, stated that the loan was accelerated and was now

-3-

due, for a principal amount of $194,286.80 with 7.75% interest accruing from

December 1, 2008 through April 2012, and 3.25% from May 1, 2012. The note,

mortgage, transfer of mortgage, and a statement of account were attached to the

affidavit and referenced in the affidavit.

{15} Appellant opposed Appellee's motion for summary judgment by

challenging Appellee's status as the real party in interest in the suit. Appellant

alleges that the 2009 assignment of mortgage did not transfer an interest to Appellee

and therefore prevents Appellee from enforcing the terms of the mortgage.. Appellant

filed an amended answer to the complaint without leave of court in conjunction with

his opposition to Appellee's motion for summary judgment on August 12, 2012. The

amended answer raised a number of defenses and challenged Appellee's standing to

foreclose. Appellee filed a motion to strike Appellant's amended answer, as it was

not filed within the 28-day window allowed by Civ.R. 15. The trial court did not rule

on this motion. The trial court did grant Appellee's motion for summary judgment on

September 28, 2012, however. Hence, the record indicates that Appellee's motion to

strike the amended answer was denied. Appellant's timely appeal was filed from the

entry granting summary judgment.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

MOTION FOR THE PLAINTIFF [SIC] THIS CASE WHEN THERE

WERE GENUINE ISSUES OF MATERIAL FACT REMAINING TO BE

PROVED BY THE PLAINTIFF.

-4-

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

FOR THE PLAINTIFF SINCE THEY WERE NOT THE REAL PARTY IN

INTEREST TO BRING A FORECLOSURE ACTION.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT GRANTED SUMMARY JUDGMENT FOR THE

PLAINTIFF BASED ON INSUFFICIENT EVIDENCE.

{16} Appellant's three assignments of error challenge the sufficiency of the

evidence presented by Appellee in support of its motion for summary judgment.

Appellant's arguments focus on two issues: Appellee's identity as the real party in

interest and the sufficiency of the averments in the affidavit filed in support of the

motion. Because an evaluation of these two issues will determine the outcome of all

three assignments of error, the assignments will be considered together.

(17} A trial court's decision to grant summary judgment is reviewed under a

de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

671 N.E.2d 241 (1996). Before summary judgment can be granted, the court hearing

the motion must determine: (1) no genuine issue as to any material fact remains to

be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it

appears from the evidence that reasonable minds can come to but one conclusion,

and viewing the evidence most favorably in favor of the party against whom the

motion for summary judgment is made, the conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

-5-

{¶8} "[T]he moving party bears the initial responsibility of informing the trial

court of the basis for the motion, and identifying those portions of the record which

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party's claim." (Emphasis sic.) Dresher v. Burt, 75 Ohio St.3d 280, 296,

662 N.E.2d 264 (1996). The nonmoving party has the reciprocal burden of setting

forth specific facts showing that there is a genuine issue for trial. Id. at 293. In order

to prevent summary judgment from being granted, the nonmoving party must

produce some evidence that suggests that a reasonable facffinder could rule in that

party's favor. Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701

N.E.2d 1023 (1997).

{19} Appellant argues that there is a genuine dispute as to Appellee's

standing to foreclose as the owner of the note and mortgage. Appellant contends

that the affidavit filed by Appellee contains the same defects that have led four other

appellate districts to hold that an affidavit filed in support of summary judgment is

insufficient to support a judgment. Appellant is mistaken in this contention. The

conclusions reached in the cases cited by Appellant are based on dispositive facts

that materially differ from the case at bar.

{110} The cases Appellant cites generally fall into two categories: those in

which the affiant is not an employee of the plaintiff bank or lending institution and

those where the note is absent and/or specifically indorsed to an entity other than the

plaintiff.

-s-

{¶11 } Appellant primarily relies on two Sixth District cases, Aurora Loan

Servs., L.L.G. v. Louis, 6th Dist. No. L-10-1289, 2012-Ohio-384 and Fed. Natl. Mtge.

Assn, v. Brunner, 6th Dist. No. L-11-1319, 2013-Ohio 128. Aurora combines both of

the common defects: the complaint was filed without a copy of the note and the note

subsequently produced was specifically indorsed to an entity other than the plaintiff

lending institution. The original lender bank. had closed before the matter was

brought to trial. The affiant, an employee of plaintiff, could not establish personal

knowledge of this closed bank's records, on which plaintiff relied. Similarly, in

Brunner, the Sixth District rejected the affidavit of an employee of an entity other than

the plaintiff lender who relied on "access" to his own employer's records, and not the

plaintiff lender's, in making the affidavit.

{112} Appellant emphasizes the fact that in this case and in Aurora the affiant

is a bank vice president. Appellant overlooks the fact that in Aurora, the affiant was

not the vice president of the bank whose records were necessary to establish a chain

of title. Similarly, Appellant argues that the affiant in Brunner averred "knowledge"

based on his "position" but the court found this claim insufficient. Appellant ignores

the fact that the Brunner affiant was not an employee of the plaintiff and the affiant's

purported knowledge was of a third party's records, not those presented by the

plaintiff. Both of these cases are inapplicable to the matter now before us, in which

the note is bearer paper and the motion for summary judgment is supported by the

affidavit of an employee who has sworn to have personal knowledge of documents

-7-

that are the business records of her own employer and which she reviewed prior to

executing her affidavit. (Fazio Aff.)

{113} Appellant's other cases are equally inapplicable to the matter before us.

In RBS Citizens N.A. v. Vemyi, 9th Dist. No. 26046, 2012-Ohio-2178 the affidavit was

defective because the affiant did not indicate her relationship to the plaintiff bank; in

Maxum ldemn. Co. v. Selective Ins. Co. of South Carolina, 2012-Ohio-2115 affiant's

knowledge was purportedly based on a contract not in evidence; in Bank of New York

Mellon Trust Co. v. Mihalca, 9th Dist. No. 25747, 2012-Ohio-567 the employee of a

separate entity who identified herself as "attorney in fact" for the plaintiff bank did not

establish a basis as to her personal knowledge sufficient to authenticate the plaintiffs

business records; in Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. No.

2010-CA-00291, 2011-Ohio-3202, the affiant was, again, an employee of an entity

other than the plaintiff bank and her affidavit did not establish that she could have

personal knowledge of another company's records or practices. Finally, in TPI Asset

Mgt., L.L.C. v. Conrad-Eiford, 193 Ohio App.3d 38, 2011-Ohio-1405, two affidavits

were rejected, both because the affiants were not employees of the business whose

records they purported to authenticate and because the affidavits did not contain

facts sufficient to establish personal knowledge. The court held that the general

statement that the affiants were "authorized" to execute affidavits for Chase Bank did

not support a finding that the information in the affidavits were based on personal

knowledge.

-8-

(¶14) The affiant in this matter is an employee of Appellee who swears to

have personal knowledge as to documents produced and maintained in th® course of

Appellee's business. As each of the districts Appe#lant cites in support of his

misguided argument have noted:

Pursuant to Civ.R. 56(E), affidavits submitted in support of, or in

opposition to, a motion for summary judgment must be "made on

personal knowledge[.]" "Unless controverted by other evidence, a

specific averment that an affidavit per#aining to business is made upon

personal knowledge of the affiant satisfies th[is] Civ.R. 56(E)

requirement[.]" Bank One, N.A. v. Swartz, 9th Dist. No. 03CA008306,

2004-Ohio-1986, 114, citing State, ex rel. Corrigan v. Seminatore, 66

Ohio St.2d 459[, 423 N.E.2d 105] (1981). However, "[i]f particular

averments contained in an affidavit suggest it is unlikely that the affiant

has personal knowledge of those facts, then * * * something more than

a conciusory averment that the affiant has knowledge of the facts would

be required." Bank One at ¶ 14, quoting Merchants Natl. Bank v.

Leslie, 2d Dist. No. 2072 (Jan. 21, 1994).

Mihalca, supra, ¶16. Appellant has not identified any flavv in the affidavit filed in this

case that would indicate that the affiant lacks the necessary personal knowiedge.

Absence proof that the affidavit is insufficient, the general rule applies: "[a] mere

assertion of personal knowledge satisfies Civ.R. 56(E) if the nature of the facts in the

affidavit combined with the identity of the affiant creates a reasonable inference that

-9-

the affiant has personal knowledge of the facts in the affidavit." Residential Funding

Co., LLC v. Thome, 6th Dist. No. L-09-1324, 2010-Ohio-4271.

(115) In focusing his argument on the. aflegedly flawed affidavit, Appellant

neglects to address the purported crux of his appeal, which is Appellee's legal status

as a holder entitled to enforce the note and mortgage. Under Ohio law, the current

holder of the note and mortgage is the real party in interest in foreclosure actions.

When a party fails to establish that it is the current holder of the note and mortgage,

summary judgment is inappropriate, U.S. Bank Natl. Assn. v. Marcino, 2009-Ohio-

1178, ¶32. Where, as here, the note produced in support of Appellee's claim

contains an indorsement that does not specifically identify the payor, it is a note

indorsed in blank and payable to the bearer. R.C. 1303.25(B) states:

"Blank indorsement" means an indorsement that is made by the holder

of the instrument and that is not a special indorsement. When an

instrument is indorsed in blank, the instrument becomes payable to

bearer and may be negotiated by transfer of possession alone until

specially indorsed.

Appellee's affidavit states: "Bank of America, N.A. successor by merger to BAC

Home.Loans [sic] Servicing, LP fka Countrywide Home Loans Servicing, LP has

possession of the note. The business records attached, which I have reviewed, are

true and correct copies * * *." (Fazio Aff., ¶4-5.) In Ohio, a person or entity who is in

possession of an instrument made payable to bearer is entitled to enforce the terms

of the instrument as the "holder." R.C. 1301.01(T)(1).

-10-

{¶16} For nearly a century, Ohio courts have held that whenever a promissory

note is secured by a mortgage, the note constitutes the evidence of the debt and the

mortgage is a mere incident to the obligation. Edgar v. Haines, 109 Ohio St. 159,

164, 141 N.E. 837 (1923). Therefore, the negotiation of a note operates as an

equitable assignment of the mortgage, even when the mortgage is not assigned or

delivered.. Kemohan v. Manss, 53 Ohio St. 118, 133, 34 WLB 79 (1895.)

(117) Various sections of the Uniform Commercial Code, as adopted in Ohio,

support the conclusion that the owner of a promissory note should be recognized as

the owner of the related mortgage. See R.C. 1309:109(A)(3) ("this chapter applies to

the following: ***[a] sale of * * * promissory notes"), 1309.102(A)(73)(d) ("`Secured

party' means: ***[a] person to whom * * * promissory notes have been sold"), and

1309.203(G) ("The attachment of a security interest in a right to payment or

performance secured by a security interest or other lien on personal or real property

is also attachment of a security interest in the security interest, mortgage, or other

lien"). Further, "[s]ubsection (g) [of U.C.C. 9-203] codifies the common-law rule that

a transfer of an obligation secured by a security interest or other lien on personal or

real property also transfers the security interest or lien." Official Comment 9 to

U.C.C. 9-203, the source of R.C. 1309.203.

(118) Thus, although the record does not contain an additional recorded

assignment of the mortgage, there is sufficient evidence in the record to establish

that Appellee is the current owner of the note and mortgage. In addition to

establishing that it is the current holder of the note and the real party in interest,

-11-

Appellee also provided evidence of Appellant's default due to nonpayment, and

established the amount due and owing. (Fazio Aff.) Appellee also produced the

required accounting showing the date of default as it is identified in the complaint.

This was confirmed in the affidavit. (Fazio Aff., Exh. 1.) Accordingly, Appellant's

three assignments of error are without merit and are overruled.

Conclusion

{119} Appellant's three assignments of error are without merit. The affidavit

offered in support of summary judgment was legally sufficient, Appellee produced

evidence to establish standing as the real party in interest, identified a default, and

provided an accounting of the amount due on the obligation. The judgment of the

trial court is affirmed in full.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.

APPROVED:

R AlE,J GE

r

_vs_

201200255

(sla)

COURT OF COMMON PLEAS

MAHONING COUNTY, OHIO

vUtJif t ii^^riO^tidf^•1G

5E EIi;Eji'ft Lt^^'rj7HQ,^I'0 ;I!'.Io. C, r ^cz;r

Bank of America, N.A. successor Case No. 2012CV00338by merger to BAC Home LoansServicing, LP fka Countrywide Judge James C. Evans

Home Loans Servicing, LP

Russell. Saadey, et al

Plaintiff,

Defendants.i

ENTRY GRANTING SUMMARY JUDGMENT

AND DECREE IN FORECLOSURE

This matter is before the Court on the Motion for Summary

Judgment of the plaintiff, to obtain judgment upon the Note as

described in the Complaint; and to foreclose the lien of the

Mortgage securing the obligation of such Note upon the real estate

described herein; and to require all parties to set up their

claims to the real estate or be barred.

The Court finds that all necessary parties have been properly

served, are properly befoie the Court, and that the defendants,

Jane Doe, name unknown, spouse of Russell Saadey and Mortgage

Electronic Registration Systems, Inc. are in default of Motion or

Answer.

The Court finds that the defendant, Russell Saadey, filed an

Answer in response to the plaintiff's Complaint. The Court

finds that the plaintiff has filed a motion for Summary Judgment

llll^l^^l[l!Ill^l^l^ll^^l l ^^[[^I^III^II^^lillll^II^E1^^ill^l^ I^i{il^l[Illl^llll^^^l^^f^^ll^^lI^IIIIII.LSR201200256D2781' 1500C9

supported by a Memorandum, and Affidavit. Upon consideration

thereof, the Court finds no genuine issue as to any material

fact and the ,plaintiff is entitled to a Judgment and Decree in

Foreclosure as a matter of law.

The Court finds that the allegations contained in the

Complaint are true and that there is due and owing to the

plaintiff, from the defendant, Russell Saadey, upon the subject

Note the principal balance of $194,286.80, for- which amount

judgment is hereby rendered in favor of the plaintiff, with

interest at the rate of 7.5000 percent per annum from December 1,

2008, and as may be adjusted pursuant to- the terms of the note,

together with advances for taxes, insurance and otherwise

expended, plus costs.

The Court finds that the Note is secured by the Mortgage held

by the plaintiff, which mortgage constitutes a valid and first

lien upon the following described premises:

See Exhibit "A"

The Court finds that the Mortgage was filed for record on May

4, 2007, in Mortgage Volume 5692, page 169, of this County's

Recorder's Office; that the conditions of said Mortgage have been

broken and plaintiff is entitled to have the equity_of redemption

®f the defendant-titleholders foreclosed.

The Court finds that the defendants, Villas at Lakewood

Condominium, The Home Savings and Loan Company, and United

States of Ai-nerica have filed separate Answers herein asserting

an interest in the real estate which is the subject of this

action, which interest are junior in priority to plaintiff's

interest as hereinabove set forth.

The Court finds that the defendant, Mahoning County

Treasurer, has an interest in the real estate which is the

subject of this action, which interest is senior in priority to

plaintiff's interest as hereinabovc set forth.

IT IS THEREFORE, ORDERED that unless the sums hereinabove

found to be due to plaintiff, and the costs of this action, be

fully paid within three (3) days from the date of the entry of

this decree, the equity of redemption of the defendant-

titleholders in said real estate shall be foreclosed and the real

estate sold, free of the interests of all parties herein, and an

order of sale may issue to the Sheriff of this County, directing

him to appraise, advertise and sell said real estate, according to

law and the orders of this Court, and report his proceedings to

.this Court. If the United States of America holds a lien on the

real estate, the United States of America shall have the right to

redeem as provided by Title 28, Section 24I0 (C), United States

Code.

IT IS FURTHER ORDERED that the Sheriff shall send counsel for

the party requesting the Order of Sale a copy of the publication

notice promptly upon its first publication.

IT IS FURTHER ORDERED that the Sheriff, upon confirmation of

said sale, shall pay from the proceeds of said sale, upon the

claims herein found, the amounts thereof in the following order of

priority:

1. To the Clerk of this Court, the costs of this action,including the fees of appraisers.

2. To the Treasurer of this County, the taxes andassessments, due and payable as of the date of transferof the deed following sale, and legally assessed againstthe real estate.

3. To the plaintiff, the sum of $194,286.80, with interestat the rate of 7.5000 percent per annum from December 1,2008, and as may be adjusted pursuant to the terms ofthe note, together with advances for taxes, insuranceand otherwise expended, plus costs.

4. The baiance.of the sale proceeds, if any, shall be paidby the Sheriff to the Clerk of this Court to awaitfurther orders of this Court:

The Court further finds that there i.>s no just reason for delay.

4JUDGE

/uunsel^1.i.randa S . Hamrick, T'rial C6Af7

Ohio Supreme Court Reg. #k0084960

LERNER, SAMPSON & ROTHFUSS

Attorneys for PlaintiffP.O. Box 5480Cincinnati, OH 45201-5480

(513) 241-3100

attyemail@lsrlaw.com

Andrew R. Zellers, Esq.

Attorney for Russell Saadey

Matthew C . Giannini, Esq

Attorney for Villas at Lakewood Condominium

William J. Ur n, Esq.

Attorney for The Home Savings an& Loan Company

^

Lori White Laisure, Esq. ^ "-I^Attorney for United States of America

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