U.S. Bank, N.A. v. Martin

[Cite as U.S. Bank, N.A. v. Martin, 2014-Ohio-3874.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

U.S. BANK, NATIONAL ASSOCIATION, )

SUCCESSOR TRUSTEE TO BANK OF )

AMERICAN, N.A. AS SUCCESSOR TO )

LASALLE BANK, N.A. AS TRUSTEE )

FOR THE MERRILL LYNCH FIRST )

FRANKLIN MORTGAGE LOAN TRUST, )

MORTGAGE LOAN ASSET-BACKED ) CASE NO. 13 MA 107

CERTIFICATES, SERIES 2007, )

) OPINION

PLAINTIFF-APPELLEE, )

)

V. )

)

DANIEL MARTIN AKA DANIEL L. )

MARTIN, )

)

DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common

Pleas of Mahoning County, Ohio

Case No. 12CV1013

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee Attorney Sarah E. Leibel

3962 Red Bank Road

Cincinnati, Ohio 45227

For Defendant-Appellant Attorney Thomas N. Michaels

839 Southwestern Run

Youngstown, Ohio 44514

JUDGES:

Hon. Gene Donofrio

Hon. Joseph J. Vukovich

Hon. Cheryl L. Waite

Dated: September 4, 2014

[Cite as U.S. Bank, N.A. v. Martin, 2014-Ohio-3874.]

DONOFRIO, J.

{¶1} Defendant-appellant Daniel Martin appeals the decision of the

Mahoning County Common Pleas Court granting summary judgment for plaintiff-

appellee U.S. Bank, N.A. in its foreclosure action.

{¶2} In 2007, Martin signed a promissory note for $165,000 and entered a

corresponding mortgage on 501 Quisner Avenue, Lowellville, OH 44436. U.S. Bank

was later assigned the note and mortgage. Martin defaulted on the loan.

{¶3} On April 5, 2012, U.S. Bank filed a complaint seeking judgment on the

note and mortgage, and asking for foreclosure on the property. Martin filed an answer

setting forth numerous affirmative defenses, including that U.S. Bank had failed to

follow proper notice procedures as required by the mortgage prior to filing its

complaint.

{¶4} U.S. Bank then filed for summary judgment on July 30, 2012. Attached

to the motion was a copy of the assignment of the mortgage and, of particular

relevance to this appeal, the notice of intent to accelerate, labeled as Exhibit B, that

U.S. Bank had sent to Martin on September 2, 2011. Also in support of its motion,

U.S. Bank separately filed that same day the affidavit of Carol Yagusic, an authorized

signer and an Assistant Vice President of Bank of America, N.A., the loan servicing

agency for U.S. Bank. Yagusic averred that Martin had defaulted under the terms of

the note and mortgage by failing to make his monthly installment payments, that the

debt had been accelerated, and that the total due under the note was the principal

sum of $156,156.40 plus interest. Attached to Yagusic’s affidavit were copies of the

note, mortgage, account information statement, and the assignment of the mortgage.

{¶5} Martin filed a memorandum in opposition on April 4, 2013, claiming only

that he did not receive any notice of acceleration. That same day, he also filed a

motion to strike Exhibit B attached to U.S. Bank’s summary judgment motion

essentially arguing that the copy of the notice of intent to accelerate was not properly

authenticated and that the affidavit failed in that regard by not referencing it.

{¶6} On May 1, 2013, U.S. Bank filed a memorandum in opposition to

Martin’s motion to strike Exhibit B on two grounds. First, U.S. Bank alleged that it did

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not receive Martin’s motion to strike until Monday, April 29, 2013, despite its time-

stamp of April 4, 2013, in violation of Civ.R. 5(A). Second, U.S. Bank argued that,

under Civ.R. 12(F) which governs a motion to strike, Exhibit B was not “redundant,

immaterial, impertinent or scandalous matter” and that Martin had failed to argue that

it was.

{¶7} That same day, U.S. Bank separately filed a reply to Martin’s

memorandum in opposition, arguing that Martin’s answer failed to allege with

specificity and particularity that the note and mortgage had not been properly

accelerated. Additionally, U.S. Bank argued that it had complied with the terms of the

note and mortgage by sending the acceleration notice to Martin. Stating that it did not

have sufficient time to attach an affidavit because it was not served with Martin’s

pleadings until April 29 and the response was due to the trial court on May 1, it was

reserving the right to supplement its reply brief with an affidavit.

{¶8} Two weeks later on May 15, 2013, U.S. Bank filed a supplemental

affidavit in support of its summary judgment motion and in response to Martin’s

motion to strike. The affidavit was executed by Arsheen Littlejohn. In it, she

authenticates a copy of the notice of intent to accelerate that U.S. Bank had

previously presented in support of its summary judgment motion. The notice reflects

that U.S. Bank sent it to Martin on September 2, 2011, by first class mail.

{¶9} On June 10, 2013, the trial court granted summary judgment in favor of

U.S. Bank, concluding that U.S. Bank was entitled to a decree of foreclosure. This

appeal followed.

{¶10} Martin sets forth one assignment of error with two corresponding issues

presented for review. One issue concerns the propriety of Exhibit B, which U.S. Bank

attached in support of its July 30, 2012 summary judgment motion. The other issue

concerns whether U.S. Bank’s May 15, 2013 supplemental affidavit served to

establish that it had provided proper notice of acceleration to Martin. Martin’s sole

assignment of error states:

THE TRIAL COURT ERRED AS A MATTER OF LAW IN

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GRANTING SUMMARY JUDGMENT TO PLAINTIFF-APPELLEE[.]

(JUDGMENT ENTRY DATED JUNE 10, 2013[.])

{¶11} An appellate court reviews a trial court’s decision on a motion for

summary judgment de novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio

St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, at ¶ 24. Summary judgment can be

granted where there remain no genuine issues of material fact for trial and where,

after construing the evidence most strongly in favor of the nonmovant, reasonable

minds can only conclude that the moving party is entitled to judgment as a matter of

law. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10, citing

Civ.R. 56(C). The burden of showing that there is no genuine issue of material fact

initially falls upon the party who files for summary judgment. Id., citing Dresher v.

Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996).

{¶12} Thereafter, the nonmovant may not rest upon the mere allegations or

denials of the party's pleadings. Civ.R. 56(E). The burden shifts to the nonmoving

party to produce evidence on any issue for which it would bear the burden of

production at trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997);

Civ.R. 56(E) (requiring the nonmoving party to put forth summary judgment compliant

evidence that sets forth specific facts showing that there is a genuine issue for trial).

“If the party does not so respond, summary judgment, if appropriate, shall be entered

against the party.” Civ.R. 56(E).

{¶13} The mortgage here addressed the notice of acceleration as follows:

Lender shall give notice to Borrower prior to acceleration

following Borrower’s breach of any covenant or agreement in this

Security Instrument (but not prior to acceleration under Section 18

unless Applicable Law provides otherwise). The notice shall specify: (a)

the default; (b) the action required to cure the default; (c) a date, not

less than 30 days from the date the notice is given to Borrower, by

which the default must be cured; and (d) that failure to cure the default

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on or before the date specified in the notice may result in acceleration

of the sums secured by this Security Instrument, foreclosure by judicial

proceeding and sale of the Property. The notice shall further inform

Borrower of the right to reinstate after acceleration and the right to

assert in the foreclosure proceeding the non-existence of a default or

any other defense of Borrower to acceleration and foreclosure. If the

default is not cured on or before the date specified in the notice, Lender

at its option may require immediate payment in full of all sums secured

by this Security Instrument without further demand and may foreclose

this Security Instrument by judicial proceeding. Lender shall be entitled

to collect all expenses incurred in pursuing the remedies provided in

this Section 22, including, but not limited to, costs of title evidence.

Civ.R. 9(C) & Condition Precedent

{¶14} “Where prior notice of default and/or acceleration is required by a

provision in a note or mortgage instrument, the provision of notice is a condition

precedent,” and it is subject to the requirements of Civ.R. 9(C). First Financial Bank

v. Doellman, 12th Dist. No. CA2006-02-029, 2007-Ohio-222, ¶ 20. Civ.R. 9(C)

provides: “In pleading the performance or occurrence of conditions precedent, it is

sufficient to aver generally that all conditions precedent have been performed or have

occurred.” By contrast, “[a] denial of performance or occurrence shall be made

specifically and with particularity.” Id. Conditions precedent that are not denied in the

manner provided by Civ.R. 9(C) are deemed admitted. Fifth Third Mtge. Co. v.

Orebaugh, 12th Dist. No. CA2012-08-153, 2013-Ohio-1730, ¶ 29, citing First

Financial at ¶ 20; see also Civ.R. 8(D).

{¶15} In this instance, Martin satisfied Civ.R. 9(C) when he specifically

alleged in paragraph eighteen of his answer that U.S. Bank had failed to comply with

the notice provisions of the mortgage prior to filing its complaint in foreclosure.

Although U.S. Bank took issue with whether Martin had alleged with sufficient

specificity and particularity denial of receipt of the acceleration notice, U.S. Bank

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does not dispute this on appeal.

Original Affidavit & Copy of Notice of Intent to Accelerate

{¶16} U.S. Bank filed its summary judgment motion on July 30, 2012. One of

the attachments to the motion was a copy of the notice of intent to accelerate,

labeled as Exhibit B. Also in support of its motion, U.S. Bank separately filed the

affidavit of Carol Yagusic, an authorized signer and an Assistant Vice President of

Bank of America, N.A., the loan servicing agency for U.S. Bank. Yagusic averred that

Martin had defaulted under the terms of the note and mortgage by failing to make his

monthly installment payments, that the debt had been accelerated, and that the total

due under the note was the principal sum of $156,156.40 plus interest. Attached to

Yagusic’s affidavit were the note, mortgage, account information statement, and an

assignment of the mortgage.

{¶17} On appeal, Martin argues that since Exhibit B was not attached to

Yagusic’s affidavit and incorporated by reference therein it was not properly

authenticated in accordance with Civ.R. 56 and should not have been considered by

the trial court. In response, U.S. Bank contends that it never represented to the trial

court that Yagusic’s affidavit authenticated the copy of the notice of intent to

accelerate. Instead, U.S. Bank relied on the May 15, 2013 supplemental affidavit it

filed in support of its reply brief in support of its summary judgment motion.

{¶18} U.S. Bank readily acknowledges the body of case law that has

developed holding that the acceleration notice must be authenticated in order to be

considered proper Civ.R. 56 evidence. First Fin. Bank v. Doellman, 12th Dist.

CA2006-02-029, 2007-Ohio-222 (letter providing notice that was attached to lender’s

reply memorandum was not incorporated by reference into an affidavit or

authenticated); Mortgage Electronic Registration Systems, Inc. v. Akpele, 9th Dist.

No. 21822, 2004-Ohio-3411 (default letter attached to reply brief not authenticated by

affidavit); Wells Fargo Bank N.A. v. Shalvey, 5th Dist. No. 06CAE090060, 2007-Ohio-

3928 (notice of default not submitted with summary judgment and copy attached to

reply brief not authenticated by affidavit.)

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{¶19} In sum, the notice of intent to accelerate attached to U.S. Bank’s July

30, 2012 summary judgment (Exhibit B) was not properly authenticated. U.S. Bank

concedes this and instead relies on its May 15, 2013 supplemental affidavit

authenticating the acceleration notice to establish that it sent the acceleration notice

to Martin. Given U.S. Bank’s position on this point and the lack of any indication in

the record that the trial court relied on Exhibit B in granting U.S. Bank’s summary

judgment, the exhibit is a nonissue on appeal.

Procedural Propriety of May 15, 2013 Supplemental Affidavit

{¶20} Next, Martin argues that the trial court should not have considered U.S.

Bank’s May 15, 2013 supplemental affidavit (which contained the properly

authenticated acceleration notice). U.S. Bank filed its summary judgment motion on

July 30, 2012. Martin filed a memorandum in opposition on April 4, 2013. U.S. Bank

then filed a reply in support of its summary judgment motion on May 1, 2013, which

Martin points out did not contain an affidavit or any exhibits. Martin argues that U.S.

Bank had from July 31, 2012, until May 15, 2013, to submit an additional affidavit in

support of its summary judgment but did not do so until after he had informed it that

the motion was allegedly deficient. Martin argues that the trial court should not have

considered U.S. Bank’s May 15, 2013 supplemental affidavit because it did not file it

until the date of the hearing on the summary judgment motion and it was not

otherwise permitted under the local rules of court.

{¶21} In response, U.S. Bank states that its May 1, 2013 reply in support of its

summary judgment motion indicated that a supplemental affidavit would be

forthcoming. As for any delay in filing its May 1, 2013 reply, U.S. Bank points out that

the parties were engaged in an unsuccessful attempt to mediate the case during that

period of time. Additionally, U.S. Bank contends that it was not properly served with

Martin’s April 4, 2013 memorandum in opposition.

{¶22} Upon review, we conclude that the trial court did not abuse its discretion

in considering U.S. Bank’s May 15, 2013 supplemental affidavit. First, Martin

concedes that he did not object to the supplemental affidavit or the exhibits. A

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nonmovant’s failure to object to the form of evidence attached to a movant’s

summary judgment motion results in waiver of any later objection as to the form of

that evidence. Wells Fargo Home Mtge., Inc. v. Landram, 2d Dist. No. 2011-CA-38,

2012-Ohio-1088, ¶ 17 (mortgagor waived any objection to mortgagee’s reliance upon

mortgagor’s bank statements which proved that mortgagor could not have sent a

check with sufficient funds to cure a default by never objecting to the form of that

evidence attached to mortgagor’s summary judgment motion in foreclosure action);

Stegawski v. Cleveland Anesthesia Group, Inc., 37 Ohio App.3d 78, 83, 523 N.E.2d

902 (8th Dist.1987) (failure to move to strike or otherwise object to documentary

evidence submitted by a party in support of a motion for summary judgment waives

any error in considering that evidence under Civ.R. 56(C)).

{¶23} Second, Martin does not cite a local rule that would have prohibited

U.S. Bank from filing the supplemental affidavit in support of its reply brief. As for

U.S. Bank’s reply brief (in which it indicated that it would be filing a supplemental

affidavit in support), nothing in Civ.R. 56 precludes the filing of a reply brief by the

party seeking summary judgment. Dunfee v. Midwestern Indemn. Co., 70 Ohio

App.3d 301, 590 N.E.2d 1365 (9th Dist.1990).

Sufficiency of May 15, 2013 Supplemental Affidavit

{¶24} Next, Martin argues that U.S. Bank’s May 15, 2013 supplemental

affidavit was substantively insufficient to support its summary judgment motion.

Martin takes issue with the affidavit itself and the attachment concerning the notice of

intent to accelerate. The affidavit was executed by Arsheen Littlejohn. Martin states

that Littlejohn’s affidavit fails to state if she is employed by Bank of America and if so,

in what capacity. Martin argues that Littlejohn’s affidavit reflects that she has no

personal knowledge of the manner in which U.S. Bank’s documents are executed or

how U.S. Bank mails documents to account holders. As for the notice of intent to

accelerate, Martin contends that it does not identify the person sending the notice or

how it was sent.

{¶25} In response, U.S. Bank argues that Littlejohn’s affidavit does indicate

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her employment with Bank of America and her position with Bank of America.

Further, U.S. Bank argues that Littlejohn has sufficient personal knowledge of the

documents attached to her affidavit. Lastly, U.S. Bank maintains that the notice of

intent to accelerate was properly authenticated and adequate to establish that it had

provided Martin with notice of its intent to accelerate.

{¶26} The facts relied upon in a motion for summary judgment must be the

type of evidence listed in Civ.R. 56(C), which includes affidavits. “Supporting and

opposing affidavits shall be made on personal knowledge, shall set forth such facts

as would be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated in the affidavit.” Civ.R. 56(E). The personal

knowledge requirement is satisfied if the affiant states that the affidavit was made on

personal knowledge (unless controverted by other evidence) or if the contents of the

affidavit allow one to infer that the affidavit was made upon personal knowledge.

Bank One, N.A. v. Swartz, 9th Dist. No. 03CA8308, 2004-Ohio-1986, ¶ 14-16

(personal knowledge where affiant stated she was a foreclosure specialist at bank,

loan file was under her immediate supervision, instruments attached to the complaint

were accurate copies of the originals, the account was in default for the amount

stated). See also Ohio Health Corp. v. Ryan, 10th Dist. No. 10AP-937, 2012-Ohio-60,

¶ 32; Chase Bank, USA v. Curren, 191 Ohio App.3d 507, 2010-Ohio-6596, 946

N.E.2d 810, ¶ 18 (4th Dist.) (personal knowledge may be inferred from the contents).

{¶27} Regarding documents referenced in an affidavit, “Sworn or certified

copies of all papers or parts of papers referred to in an affidavit shall be attached to

or served with the affidavit.” Id. This requirement is satisfied by a statement in the

affidavit declaring that the documents attached are true copies. State ex rel. Corrigan

v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981).

{¶28} In this instance, U.S. Bank’s May 15, 2013 supplemental affidavit and

its attachments conformed with Civ.R. 56 and served to establish that U.S. Bank

complied with the notice of provision of the mortgage. Contrary to Martin’s argument,

Littlejohn’s affidavit clearly indicates that she is an employee of Bank of America. In

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the first paragraph of the affidavit she states that she is an officer of Bank of America,

which is U.S. Bank’s servicer of the loan. The signature line of the affidavit identifies

her title as an “AVP, Operations Team Manager.”

{¶29} Also, the personal knowledge requirement of the affidavit was satisfied.

Martin seems to argue that Littlejohn must have firsthand knowledge of the

documents and records that were generated in connection with his note and

mortgage, but that is not what is required. As it pertains to business records, the

personal knowledge requirement stems from Evid.R. 803(6) which governs the

admissibility of business records as an exception to the hearsay rule:

(6) Records of regularly conducted activity. A memorandum,

report, record, or data compilation, in any form, of acts, events, or

conditions, made at or near the time by, or from information transmitted

by, a person with knowledge, if kept in the course of a regularly

conducted business activity, and if it was the regular practice of that

business activity to make the memorandum, report, record, or data

compilation, all as shown by the testimony of the custodian or other

qualified witness or as provided by Rule 901(B)(10), unless the source

of information or the method or circumstances of preparation indicate

lack of trustworthiness. The term ‘business’ as used in this paragraph

includes business, institution, association, profession, occupation, and

calling of every kind, whether or not conducted for profit.

{¶30} “The rationale behind Evid.R. 803(6) is that if information is sufficiently

trustworthy that a business is willing to rely on it in making business decisions, the

courts should be willing to as well.” Deutsche Bank Natl. Trust Co. v. Hansen, 5th

Dist. No. 2010 CA 00001, 2011-Ohio-1223, ¶ 21, citing Staff Note to Evid.R. 803(6).

“To qualify for admission under Rule 803(6), a business record must manifest four

essential elements: (i) the record must be one regularly recorded in a regularly

conducted activity; (ii) it must have been entered by a person with knowledge of the

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act, event or condition; (iii) it must have been recorded at or near the time of the

transaction; and (iv) a foundation must be laid by the ‘custodian’ of the record or by

some ‘other qualified witness.’” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880

N.E.2d 31, ¶ 171, quoting Weissenberger, Ohio Evidence Treatise (2007) 600,

Section 803.73. See also McCormick v. Mirrored Image, Inc., 7 Ohio App.3d 232,

233, 454 N.E.2d 1363 (1982).

{¶31} The phrase “other qualified witness” is not strictly or narrowly

interpreted as Martin might have it be. See State v. Patton, 3d Dist. App. No. 1-91-12,

1992 WL 42806 (Mar. 5, 1992), citing 1 Weissenberger’s Ohio Evidence (1985) 75,

Section 803.79. In other words, it is not necessary that the affiant have firsthand

knowledge of the transaction giving rise to the record. State v. Vrona, 47 Ohio

App.3d 145, 547 N.E.2d 1189 (9th Dist.1988), paragraph two of the syllabus.

“Rather, it must be demonstrated that: the witness is sufficiently familiar with the

operation of the business and with the circumstances of the record’s preparation,

maintenance and retrieval, that he can reasonably testify on the basis of this

knowledge that the record is what it purports to be, and that it was made in the

ordinary course of business consistent with the elements of Rule 803(6).” Patton,

supra, quoting Weissenberger at 76.

{¶32} Littlejohn stated that she has personal knowledge of the procedures for

creating the records in connection with the loan. At paragraph three of her affidavit,

she explained, in detail, the nature of her personal knowledge of the records

generated in connection with the loan:

The information in this affidavit is taken from [Bank of America,

N.A.] BANA’s business records. These records are: (a) made at or near

the time of the occurrence of the matters recorded by persons with

personal knowledge of the information in the business record, or from

information transmitted by persons with personal knowledge; (b) kept in

the course of BANA’s regularly conducted business activities; and (c)

created by BANA as a regular practice. I have personally reviewed the

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attached records, and I make this affidavit from a review of those

business records, and from my personal knowledge of how said records

are created and maintained.

{¶33} Thus, on its face, Littlejohn’s affidavit was sufficient to establish she had

personal knowledge of the documents and records concerning Martin’s note and

mortgage. Notably, Littlejohn’s affidavit was not controverted by other evidence. Bank

One, N.A., supra.

{¶34} Given the sufficiency of Littlejohn’s affidavit, her incorporation by

reference of the notice of intent to accelerate was likewise sufficient to authenticate

that document. She stated that Exhibit E, a copy of the notice of intent to accelerate,

was a true and accurate copy of the notice that was sent to Martin.

{¶35} As indicated earlier, section twenty-two of the mortgage does provide

that the Lender must give notice to the Borrower of the breach of any covenant. It

also indicates what information the notice must contain. Martin does not argue that

the notice does not contain the information required. Rather, his argument is that he

did not receive service of the notice. Section twenty-two of the mortgage does not

specifically address service, however, section fifteen of the mortgage does:

15. Notices. All notices given by Borrower or Lender in

connection with this Security Instrument must be in writing. Any notice

to Borrower in connection with this Security Instrument shall be deemed

to have been given to Borrower when mailed by first class mail or when

actually delivered to Borrower’s notice address if sent by other means.

Notice to any one Borrower shall constitute notice to all Borrowers

unless Applicable Law expressly requires otherwise. The notice

address shall be the Property Address unless Borrower has designated

a substitute notice address by notice to Lender. * * * There may be only

one designated notice address under this Security Instrument at any

one time. * * * If any notice required by this Security Instrument is also

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required under Applicable Law, the Applicable Law requirement will

satisfy the corresponding requirement under this Security Instrument.

{¶36} Exhibit E, attached to and authenticated by Littlejohn’s affidavit, clearly

reflects that the notice of intent to accelerate was sent by first class mail to Martin.

Exhibit E contains a copy of the envelope bearing Martins address and first class

postage. The notice itself reflects that it was sent to Martin on September 2, 2011.

{¶37} Although the notice does not bear the signature of a person, Martin has

not cited any provisions of the note or mortgage that require that it be signed by a

person. Nor has he cited any statutory or case law requiring that such a notice

contain a signature.

{¶38} As for Martin’s argument that he never received the notice, he

concedes that the mortgage does not require that U.S. Bank show that he actually

received the notice of intent to accelerate, but instead incongruously contends that it

creates a genuine issue of material fact. Martin’s affidavit stating that he did not

receive notice may create a genuine of issue of material fact as to whether he

actually received the notice. But the terms of the mortgage do not require that he

actually receive the notice. There is no genuine issue of material fact as to whether

U.S. Bank sent the notice by first class mail, which is all that was required under the

terms of the mortgage. In a similar case involving a mortgagor who filed an affidavit

claiming they had not received service of the notice, this court found such evidence

does not create a genuine issue of material fact concerning whether the mortgagee

had sent a compliant notice according to the terms of the mortgage. CitiMtge., Inc. v.

Loncar, 7th Dist. No. 11 MA 174, 2013-Ohio-2959, appeal not allowed, 2013-Ohio-

5096, 137 Ohio St.3d 1413, 998 N.E.2d 511. See also Fifth Third Mtge. Co. v.

Wizzard, 10th Dist. No. 2013-Ohio-3084 appeal not allowed, 2013-Ohio-5285, 137

Ohio St.3d 1423, 998 N.E.2d 1178 (In response to mortgagor’s claim that she never

“received” acceleration notice, court held that compliance with the notice provisions

of the note and mortgage did not hinge upon mortgagor’s actual receipt of the notice

of default.)

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{¶39} In sum, U.S. Bank brought a foreclosure action against Martin for

defaulting on his loan and mortgage. Contrary to Martin’s argument, U.S. Bank’s May

15, 2013 supplemental affidavit in support of its summary judgment motion was

properly before the trial court. Additionally, that affidavit properly authenticates the

September 2, 2011 notice of intent to accelerate that U.S. Bank sent to Martin by first

class mail. There is no genuine dispute as to any material fact, and the trial court

properly sustained U.S. Bank’s motion for summary judgment and granted the

foreclosure.

{¶40} Accordingly, Martin’s sole assignment of error is without merit.

{¶41} The judgment of the trial court is affirmed.

Vukovich, J., concurs.

Waite, J., concurs.