Huntington Natl. Bank v. Kopnisky

[Cite as Huntington Natl. Bank v. Kopnisky, 2017-Ohio-641.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

THE HUNTINGTON NATIONAL BANK, )

)

PLAINTIFF-APPELLEE, )

) CASE NO. 15 MA 0172

V. )

) OPINION

DENNIS G. KOPNISKY, et al., )

)

DEFENDANTS-APPELLANTS. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common

Pleas of Mahoning County, Ohio

Case No. 15 CV 331

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee Attorney Eric T. Deighton

24755 Chagrin Blvd., Suite 200

Cleveland, Ohio 44112

For Defendants-Appellants Attorney Bruce M. Broyles

5815 Market Street, Suite 2

Boardman, Ohio 44512

JUDGES:

Hon. Gene Donofrio

Hon. Cheryl L. Waite

Hon. Carol Ann Robb

Dated: February 14, 2017

[Cite as Huntington Natl. Bank v. Kopnisky, 2017-Ohio-641.]

DONOFRIO, J.

{¶1} Defendants-appellants, Dennis and Sonya Kopnisky, appeal the

summary judgment entered against them and the decree of foreclosure entered by

the Mahoning County Common Pleas Court.

{¶2} On August 12, 2005, Appellants signed a note promising to pay Sky

Bank, the lender, $78,000.00. Monthly payments were due on the first day of each

month. Exhibit B, ¶ 3. Failure to pay the amounts when due would put Appellants in

default. The note provides that if Appellants are in default, the holder of the note may

send a written notice telling Appellants that they are in default and if payments are

not made by a date certain, the holder of the note may require Appellants to

immediately pay the full amount owed. The note provides that the date by which

payment would have to be made “must be at least 30 days after the date on which

the notice is mailed * * * or delivered by other means.” Exhibit B ¶ 6(C).

{¶3} On the same day, August 12, 2005, Appellants signed a mortgage to

secure the note in favor of the lender, Sky Bank.

{¶4} Sky Bank was acquired by Plaintiff-appellee, Huntington National Bank,

on September 21, 2007.

{¶5} On January 13, 2010, Appellants signed a Loan Modification

Agreement with Huntington. Exhibit C.

{¶6} On November 9, 2014, Huntington mailed a Notice of Intention to

Accelerate and Foreclose, dated November 4, 2014, to Appellants stating that they

were in default and that the full amount due of $5,005.32 had to be paid by

December 9, 2014, or their mortgage would be accelerated which meant they would

have to repay the balance due in full, and foreclosure might be initiated. The Notice

was received by Appellants on November 10, 2014.

{¶7} On February 5, 2015, Huntington filed a complaint based upon the note

and the mortgage. Since no answer was filed, on March 23, 2015, Huntington filed a

motion for default judgment. On March 24, 2015, Appellants filed a motion for leave

to file an answer instanter. The trial court granted their motion on the same day. In

addition to generally denying the allegations in the complaint, Appellants asserted

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affirmative defenses. Appellants claimed that Huntington failed to provide the notice

of default required by paragraph 6(C) of the note, that Huntington failed to perform all

conditions precedent to accelerate the debt and foreclose pursuant to paragraph 22

on page 13 of 14 of Form 3036, and that Huntington did not have a valid mortgage

because of contradictory legal descriptions and because no master mortgage

document was recorded with the mortgage.

{¶8} On July 16, 2015, Huntington filed a motion for summary judgment and

attached the affidavit of Robin Scott. The Scott affidavit states that Robin Scott is an

authorized signer for Huntington, which is the successor by merger to Sky Bank as

demonstrated by the National Information Center report attached to the affidavit as

Exhibit A. The Scott affidavit provides that Huntington maintains physical loan files

and computer databases associated with each of its loans. Scott states that the

material in those files is placed there by a person with knowledge and in the normal

course of business. Scott attested in her affidavit that she has access to the loan files

and reviewed the files relative to the pending matter. She states that she has

personal knowledge of the business records described in her affidavit and of the

contents of those records. Scott states that the documents attached to her affidavit

are true and accurate copies of the records. Attached to the affidavit are the note

(Exhibit B), loan modification agreement (Exhibit C), the mortgage (Exhibit D), and

the Master Mortgage separately recorded in Mahoning County (Exhibit E). Scott

states that all of the prerequisites necessary to accelerate the note and mortgage

were performed and that the Notice of Default Letter mailed by First Class Mail is

attached as Exhibit F. She provides in her affidavit that Appellants are in default. She

attaches the loan histories to her affidavit as Exhibit G.

{¶9} Appellants filed a Memorandum in Opposition to Huntington’s motion

for summary judgment asserting that the Scott affidavit should not be accepted, that

the records attached to it did not qualify as exceptions to the hearsay rule pursuant to

Evid.R. 803(6), that Huntington failed to prove that it was the successor in interest to

Sky Bank, and that Huntington failed to comply with all conditions precedent to

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foreclosure.

{¶10} The trial court granted summary judgment to Huntington on August 27,

2015. The trial court concluded that the Scott affidavit was sufficient and that all the

documents attached thereto met the requirements of Evid.R. 803(6). The trial court

determined that Huntington met all the conditions precedent and noted that

Appellants failed to submit any evidentiary material whatsoever. On September 4,

2015, the trial court filed a judgment entry ordering foreclosure and sale of the

mortgaged property.

{¶11} Appellants’ sole assignment of error states:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

WHEN THERE WERE GENUINE ISSUES OF MATERIAL FACT STILL

IN DISPUTE.

{¶12} In U.S. Bank, N.A. v. Martin, 7th Dist. No. 13 MA 107, 2014-Ohio-3874,

¶ 11-12, we reiterated the duty of an appellate court when reviewing a trial court’s

decision with regard to summary judgment. 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, 1996-Ohio-107, 662

N.E.2d 264.

{¶13} 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

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production at trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, 674 N.E.2d

1164; Civ.R. 56(E). “If the party does not so respond, summary judgment, if

appropriate, shall be entered against the party.” Civ.R. 56(E).

{¶14} To support a motion for summary judgment in a foreclosure action, the

plaintiff must present evidentiary-quality materials establishing 1) that it is the holder

of the note and mortgage, or is entitled to enforce the instrument, 2) if not the original

mortgagee, the chain of assignments or transfers, 3) that all conditions precedent

have been met, 4) that the mortgagor is in default, and 5) the amount of principal and

interest due. Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. No. 2010-CA-

00291, 2011-Ohio-3203, ¶ 40-45.

{¶15} Appellants divide their only assignment of error into three issues for

review. Those three issues involve the first three requirements set forth above in

Wachovia. Appellants do not contest that they are in default or the amount due in

principal or interest, i.e., requirements four and five.

{¶16} Appellants’ first issue questions the ability of Huntington to enforce the

note. Their second issue involves whether Scott’s affidavit was sufficient for purposes

of the business records exception to the hearsay rule set forth in Evid.R. 803(6).

Appellants’ third issue asserts that there was a genuine issue of material fact as to

whether Huntington met all conditions precedent. Appellants address their first two

issues for review together.

{¶17} The facts relied upon with regard to a motion for summary judgment

must comply with Civ.R. 56(C). Martin at ¶ 26. Affidavits, supporting and opposing,

“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 requirement that the

affiant have personal knowledge is satisfied if the affiant states that the affidavit is

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. Martin at ¶ 26, citing Bank One, N.A. v. Swartz, 9th Dist. No. 03CA8303,

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2004-Ohio-1986, ¶ 14-16.

{¶18} Appellants assert Scott’s affidavit is unacceptable because Scott’s

statements are contradicted by the documents attached to the affidavit. First,

Appellants assert that Scott’s personal knowledge that Huntington is the successor to

Sky Bank comes from an unauthenticated form on the internet. We assume

Appellants are referring to the statement in paragraph one of Scott’s affidavit. We

read that sentence differently. Scott states that Huntington is the successor by

merger to Sky Bank and that this fact is evidenced by a National Information Center

report, which is attached to her affidavit and purports to be a repository of financial

data and institution characteristics collected by the Federal Reserve System and

placed on the internet. Scott also states that she is an authorized signer of

Huntington. We do not find these statements to be conflicting. Furthermore,

Appellants have offered no evidence which controverts Scott’s sworn statement.

There is no evidence that suggests that Huntington is not the successor to Sky Bank.

{¶19} Next, Appellants complain that Exhibit A, the National Information

Center page, states that Sky Bank was acquired by Huntington but that Exhibit C, the

Loan Modification Agreement, describes Huntington not as the payee or successor in

interest to Sky Bank but as a “servicer.” However, Appellants’ representation is only

partially accurate. Exhibit C, the Loan Modification Agreement, begins by describing

Huntington as the “Lender and/or Servicer” and indicates that, thereafter, Huntington

is referred to as the “Lender.” Again, this is not a contradiction. And, in light of

Appellants’ failure to present any contrary evidence, this does not create a genuine

issue of material fact.

{¶20} Appellants, also, seemingly complain that the note is endorsed in blank

by Sky Bank and, thus, the note did not need to be endorsed to convey title to Sky

Bank’s successor in interest. This observation does not create a genuine issue of

material fact. In fact, it has the opposite result. If Appellants’ argument is accepted,

Huntington is clearly the holder of the note and can enforce it. The Scott affidavit

establishes that Huntington is the successor by merger to Sky Bank, that it is entitled

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to enforce the note, and that the affidavit and business records attached thereto

otherwise meet the requirements of Evid.R. 803(6). Thus, Appellants’ first two issues

for review are without merit.

{¶21} Appellants’ third issue for review questions whether there is a genuine

issue of material fact regarding Huntington’s compliance with all conditions

precedent. Specifically, Appellants complain that Huntington failed to comply with

Paragraph 6(C) of the note which provides:

If I am in default, the Note Holder may send me a written notice telling

me that if I do not pay the overdue amount by a certain date, the Note

Holder may require me to pay immediately the full amount of Principal

which has not been paid and all the interest that I owe on that amount.

That date must be at least 30 days after the date on which the notice is

mailed to me or delivered by other means.

(Exhibit B, ¶ 6(C)). Further, the Master Mortgage provides that the notice “shall

specify * * * a date, not less than 30 days from the date the notice is given to the

Borrower, by which the default must be cured * * *.” (Exhibit E, ¶ 22). Appellants

assert that, in regard to both, they were given only 29 days to cure their default.

{¶22} Since the note and Master Mortgage provide that a notice of default and

acceleration must be provided, and that Appellants be given time to cure the default,

notice is a condition precedent subject to the requirements of Civ.R. 9(C). Martin at

¶ 14. In pleading the performance of any conditions precedent, a general averment to

that extent is sufficient. Id., Civ.R. 9(C). The denial of performance or occurrence,

however, “shall be made specifically and with particularity.” Id. Conditions precedent

not denied pursuant to Civ.R. 9(C) are deemed admitted. Id. Here, the parties do not

contest whether the condition precedent was properly pleaded in the complaint or

properly denied in the answer. Instead, Appellants assert that there is a genuine

issue of material fact as to whether the condition precedent was satisfied.

{¶23} Appellants argue that the notice must provide at least 30 days to cure

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the default after delivery. Appellants count the days after delivery. The trial court

similarly concluded that the date of receipt is the operative date. Counting the days

after delivery or after receipt is incorrect. The note, quoted above, provides that the

time to cure is “30 days after the date on which the notice is mailed to me

[Appellants] or delivered by other means.” This language does not require actual

delivery. The Master Mortgage provides that Appellants be provided 30 days from the

date the notice is given to Appellants. The Master Mortgage further provides that any

notice to Appellants “shall be deemed to have been given to Borrower when mailed

by first class mail or when actually delivered * * *.” (Exhibit E, ¶ 15). Actual receipt is

not required by either the note or the Master Mortgage.

{¶24} Huntington also draws the court’s attention to paragraph seven of the

note. Paragraph seven of the note provides that any required notices will be given by

delivery or by mailing the notice by first class mail. Contrary to Huntington’s

assertion, this paragraph does not state that the day of mailing is deemed the date of

notice.

{¶25} Thus, the question presented is on what date a first class mailing to

Appellants occurred and whether they were provided 30 days after that mailing to

cure the default. Although Huntington does not say so with any particularity, it seems

to strongly imply that there were two mailings here, one by first class mail on the

same day as the date of the notice, i.e., November 4, 2014, and a second, certified

mailing, on November 9, 2014. Indeed, Huntington asks the court to accept a mailing

on November 4, 2014, allowing Huntington to make the argument that Appellants

actually had 35 days’ notice. To support its argument that there was 35 days’ notice,

Huntington states: “See un-contradicted affidavit of Robin Scott.”

{¶26} Before discussing Scott’s affidavit, as suggested by Huntington, we

note that the Notice of Intention to Accelerate and Foreclose is dated November 4,

2014, but the USPS Tracking internet printout attached to it states that the Postal

Product was first class mail with the feature titled “Certified Mail.” (Exhibit F). This

document relates only to the certified mail. It demonstrates that the document was

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mailed November 9, 2014, and was delivered on November 10, 2014. It does not

reflect that any other item was mailed before November 9, 2014.

{¶27} Thus, as Huntington suggests, Scott’s affidavit is important in

determining if there was both a first class mailing and a certified mailing and, if there

were both, determining when the first class mailing occurred.

{¶28} Paragraph 5 of the Scott affidavit is the only part of the affidavit which

addresses the condition precedent. It states:

That all of the prerequisites required under the note and mortgage

necessary to accelerate the balance due on the note have been

performed and that a true and accurate copy of the Notice of Default

Letter mailed by First Class Mail is attached hereto as Exhibit “F” and is

incorporated herein; and, that plaintiff has accelerated and called due

the entire principal balance due thereon * * *

(Exhibit F). Contrary to Huntington’s implications, this affidavit is devoid of any

reference to a mailing of any sort on November 4, 2014. Thus, there is no factual

support for Huntington’s assertion that 35 days’ notice was provided. At best, Scott’s

affidavit establishes one mailing date, by any means, and that date is November 9,

2014. Scott’s affidavit and Exhibit F indicate only that there was a first class mailing

by certified mail on November 9, 2014.

{¶29} The note states that Appellants be given 30 days’ notice after the date

on which the notice is mailed or delivered by other means. The Master Mortgage

states that notice is deemed given on the date of mailing or when actually delivered.

The notice was mailed on November 9, 2014 and delivered on November 10, 2014. It

provided that Appellants had to cure the default by December 9, 2014. Neither party

contests that a certified (first class mailing) took place on November 9, 2014.

Counting 30 days after the date of mailing, i.e., excluding November 9, 2014 from the

calculation, 30 days would give Appellants until December 9, 2014, the date provided

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in the Notice of Intention to Accelerate and Foreclose. Thus, Appellants’ third issue

for review is without merit.

{¶30} Accordingly, Appellants’ sole assignment of error is without merit and is

overruled.

{¶31} For the reasons stated above, the trial court’s judgment is hereby

affirmed.

Waite, J., concurs.

Robb, P.J., concurs.