[Cite as Deutsche Bank Natl. Trust Co. v. Eversole, 2017-Ohio-1217.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      ERIE COUNTY


Deutsche Bank National Trust Company,                      Court of Appeals No. E-16-011
As Trustee for the Holders of Morgan
Stanley ABS Capital I Inc., Trust                          Trial Court No. 2015 CV 0088
2005-HE3, Mortgage Pass-Through
Certificates, Series 2005-HE3

        Appellee

v.

Susan J. Eversole, et al.                                  DECISION AND JUDGMENT

        Appellant                                          Decided: March 31, 2017

                                                 *****

        John B. Kopf, for appellee.

        Daniel L. McGookey, for appellant.

                                                 *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant Susan J. Eversole, appeals the January 19, 2016

judgment of the Erie County Court of Common Pleas which granted summary judgment
in favor of plaintiff-appellee, Deutsche Bank National Trust Co., etc., on its foreclosure

complaint. Because we agree that no genuine issues of fact remain, we affirm.

       {¶ 2} The action commenced on February 6, 2015, with appellee’s filing of a

complaint for foreclosure and declaratory judgment against appellant Eversole, Mortgage

Electronic Registration Systems, Inc. (“MERS”) as nominee for Intervale Mortgage

Corporation, State of Ohio Department of Taxation, Intervale Mortgage Corporation,

Decision One Mortgage Company, and the Treasurer of Erie County. The complaint

alleged that appellant had defaulted on the terms of a promissory note which was in

appellee’s possession and which it was entitled to enforce. Appellee claimed that the

unpaid sum of $210,502.38, plus interest at the rate of 6.84 percent per annum was due

from April 1, 2008. The complaint indicated that because appellant was discharged in a

bankruptcy proceeding, appellee was not pursuing a personal money judgment.

       {¶ 3} Appellee further claimed that it was the holder of a mortgage given to

secure the indebtedness of the promissory note, that appellant defaulted on the terms of

the mortgage, that the conditions precedent had been met and that appellee was entitled to

foreclose on the mortgage. Several exhibits were attached to the complaint including a

copy of the note executed on September 24, 2004, listing Intervale Mortgage Corporation

as the lender; a copy of the mortgage recorded on September 30, 2004, with Decision

One Mortgage Company as Servicing Agent for Intervale and MERS as nominee for the




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lender, its successors and assigns; the June 7, 2011 assignment of the mortgage to

appellee; and the October 23, 2014 title insurance report.

       {¶ 4} On February 24, 2015, appellant filed her answer and cross-claim.

Appellant denied “all of the allegations in Plaintiff’s Complaint” and asserted multiple

defenses including that appellee was not the holder of the note or mortgage and, thus, not

entitled to enforce the documents and that appellee failed to meet the conditions

precedent to pursuing the action. In her cross-claim for declaratory judgment against

defendant MERS, appellant requested that the court declare that MERS had no interest in

the promissory note or mortgage and that they be declared “null and void.” On June 5,

2015, MERS filed a notice of its May 11, 2015 recordation of an assignment and release

of mortgage. MERS stated that it had no interest in the subject property.

       {¶ 5} On August 24, 2015, appellee filed its motion for summary judgment. In

support, appellee relied on the affidavits of Dan Dickey, Nationstar Document Execution

Specialist (servicer of the subject loan mortgage beginning September 2013), and Rachel

Valli, employee of appellee’s counsel. Appellee also proffered the deposition testimony

of Fay Janati, a Nationstar employee. Appellant filed her opposition to the summary

judgment motion and filed motions to strike the affidavits of Dickey and Valli contending

that they were not based on personal knowledge as required under Civ.R. 56(E).

       {¶ 6} The trial court granted summary judgment on January 19, 2016, finding

that pursuant to the promissory note, $210,502.38 plus interest at 6.84 percent per annum




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from April 1, 2008 was due and owing. The court found that in order to secure payment

of the promissory note, appellant executed and delivered a mortgage deed to MERS as

nominee of Intervale. MERS then assigned the mortgage deed to appellee. The court

further found that the mortgage conditions had been broken and that appellee was entitled

to have the equity of redemption. The court also denied appellant’s motions to strike.

         {¶ 7} This appeal followed with appellant raising the following assignment of

error:

                The trial court erred in granting Deutsche Bank’s motion for

         summary judgment.

         {¶ 8} We initially note that appellate review of a trial court’s judgment granting a

motion for summary judgment is de novo; that is, an appellate court applies the same

standard in determining whether summary judgment should be granted as the trial court.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). To prevail

on a motion for summary judgment the moving party must demonstrate:

                (1) that there is no genuine issue as to any material fact; (2) that the

         moving party is entitled to judgment as a matter of law; and (3) that

         reasonable minds can come to but one conclusion, and that conclusion is

         adverse to the party against whom the motion for summary judgment is

         made, who is entitled to have the evidence construed most strongly in his




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        favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375

        N.E.2d 46 (1978).

        {¶ 9} The grant of summary judgment is limited to circumstances where there is

no dispute of material fact. Civ.R. 56(C) provides:

               Summary judgment shall be rendered forthwith if the pleadings,

        depositions, answers to interrogatories, written admissions, affidavits,

        transcripts of evidence, and written stipulations of fact, if any, timely filed

        in the action, show that there is no genuine issue as to any material fact and

        that the moving party is entitled to judgment as a matter of law.

        {¶ 10} In her sole assignment of error, appellant raises several arguments as to

why issues of fact precluded an award of summary judgment. We will discuss each in

turn.

                              Personal Knowledge Requirement

        {¶ 11} As raised in the trial court in her motions to strike and opposition to

summary judgment, appellant contends that the affidavits in support of appellee’s motion

for summary judgment were not based on personal knowledge. This court has stated:

               To properly support a motion for summary judgment in a foreclosure

        action, a plaintiff must present evidentiary-quality materials showing: (1)

        the movant is the holder of the note and mortgage, or is a party entitled to

        enforce the instrument; (2) if the movant is not the original mortgagee, the




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       chain of assignments and transfers; (3) the mortgagor is in default; (4) all

       conditions precedent have been met; and (5) the amount of principal and

       interest due. U.S. Bank, N.A. v. Coffey, 6th Dist. Erie No. E-11-026, 2012-

       Ohio-721, ¶ 26, citing Wachovia Bank of Del., N.A. v. Jackson, 5th Dist.

       Stark No. 2010-CA-0091, 2011-Ohio-3203, ¶ 40-45. CitiMortgage, Inc. v.

       Teofilo, 6th Dist. Lucas No. E-14-094, 2016-Ohio-334, ¶ 11.

       {¶ 12} In determining whether an affidavit submitted in support of a summary

judgment motion is “evidentiary-quality,” we turn to the requirements under Civ.R.

56(E), which provides, in part:

              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. 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.

       {¶ 13} In his affidavit attached to appellee’s motion for summary judgment, Dan

Dickey stated that he was an employee of Nationstar Mortgage and had personally

examined the relevant business records. Dickey stated that Nationstar was in possession

of the original promissory note and that he reviewed the copy attached to the affidavit

and it was true and accurate. Dickey attested that a true and accurate copy of the




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assignment of the mortgage to appellee was also attached to the affidavit. Mr. Dickey

further indicated that the original note was sent to appellee’s counsel’s office prior to the

filing of the complaint.

       {¶ 14} Dickey indicated that he examined and had personal knowledge of

appellant’s loan account, the sum that was due and owing, and that it remained in default.

He attested that the attached payment history was true and accurate and that the notice of

default was sent to appellant.

       {¶ 15} Appellee also submitted the affidavit of Rachel Valli who stated that she is

the business records custodian for appellee’s counsel. Valli stated that the original

promissory note was delivered to counsel on or about August 14, 2014. She indicated

that she compared the original to the copy of the note attached to the affidavit.

       {¶ 16} This court has held that “‘[u]nless controverted by other evidence, a

specific averment that an affidavit is made upon personal knowledge of the affiant

satisfies the Civ.R. 56(E) requirement that the affiant must be competent to testify to the

matters stated.’” U.S. Bank Natl. Assn. v. Downs, 6th Dist. Erie No. E-15-062, 2016-

Ohio-5360, ¶ 20, quoting HSBC Mtge. Servs., Inc. v. Edmon, 6th Dist. Erie No. E-11-046,

2012-Ohio-4990, ¶ 13.

       {¶ 17} Reviewing appellant’s arguments, we find that she failed to rebut Dickey’s

or Valli’s assertions that their affidavits were based upon personal knowledge. Thus,

they were properly considered by the trial court.




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                            Holder and Entitlement to Enforce

       {¶ 18} Turning to the substance of appellee’s motion for summary judgment,

appellant’s main argument is that appellee failed to prove that it was the holder of the

note and mortgage and was entitled to enforce it. See Wachovia Bank of Del., N.A. v.

Jackson, 5th Dist. Stark No. 2010-CA-0091, 2011-Ohio-3203, ¶ 40-45. Appellant

contends that appellee failed to establish the chain of custody of the note and that mere

possession is not enough. Specifically, appellant asserts that there is no endorsement

from the loan originator, Intervale Mortgage Corporation to Decision One thus, any

transfer from Decision One was a nullity.

       {¶ 19} Conversely, appellee asserts that as a nonholder in possession of the note,

R.C. 1303.31, it had the rights of a holder. This section provides:

              (A) “Person entitled to enforce” an instrument means any of the

       following persons:

              (1) The holder of the instrument;

              (2) A nonholder in possession of the instrument who has the rights

       of a holder;

              (3) A person not in possession of the instrument who is entitled to

       enforce the instrument pursuant to Section 1303.38 or division (D) of

       section 1303.58 of the Revised Code.




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              (B) A person may be a “person entitled to enforce” the instrument

       even though the person is not the owner of the instrument or is in wrongful

       possession of the instrument.

       {¶ 20} Appellee further asserts that regarding the chain of custody, appellant filed

a prospectus, dated July 19, 2005, with the court which evidences that Intervale

transferred its interest in the note to Decision One who, in turn, transferred it to appellee,

as trustee. Further, Intervale in its answer to appellee’s complaint stated that it had “sold

or otherwise entirely disposed of all of its rights and/or interests in the underlying

mortgage loan.”

       {¶ 21} Appellee alleged that it had an original copy of the note in its possession

when it commenced the foreclosure action. Appellant counters, however, that there was

an inconsistency in the summary judgment evidence as to the date that the original note

was transferred to appellee’s counsel. Specifically, appellant argues that Dickey’s

statement that appellee had been in possession of the original promissory note from “at

least” the time the complaint was filed (February 6, 2015) conflicted with Rachel Valli’s

statement that the original note was delivered to appellee’s counsel on August 14, 2014.

Appellant contends that these statements further conflict with the deposition testimony of

Nationstar employee Fay Janati who stated that the note was delivered to counsel’s office

in September 2014. Reviewing the Janati deposition, the testimony indicates her

agreement with a discovery response indicating that the original note was delivered to the




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attorney’s office on August 14, 2194. In any event, the uncontroverted evidence

demonstrated that appellee had the original note in its possession prior to filing the

complaint.

       {¶ 22} Based on the foregoing, we find that because appellee attached a copy of

the note to its complaint and had two affidavits attesting that it had possession of the

original copy of the note, combined with the evidence of transfer of interest in the note

from Intervale to Decision One and then to appellee, appellee established its status as an

entity entitled to enforce the note.

       {¶ 23} Regarding appellee’s interest in the mortgage, MERS, as nominee for

original lender Intervale and its “successors and assigns” which would include Decision

One, assigned the mortgage to appellee as trustee on May 27, 2011; the assignment was

recorded on June 7, 2011.

                                       Conditions Precedent

       {¶ 24} Appellant next argues that appellee failed to satisfy the requirement that it

send, and appellant receive, a notice of default and intent to accelerate. There is evidence

in the record demonstrating that notice was sent on June 26, 2013, by certified mail.

Appellant presented no contradictory evidence stating that she did not receive the notice.

See, e.g., Wells Fargo Bank, N.A. v. Scott, 2d Dist. Montgomery No. 26552, 2015-Ohio-

3269, ¶ 22. Thus, we reject appellant’s argument.




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                                       Amount Due

       {¶ 25} Appellant next argues that appellee failed to prove the amount due and

owing under the note. Specifically, appellant contends that because she signed a loan

modification in March 2009, and made payments under the agreement the amount

appellee alleged was owed was inaccurate. Reviewing the Dan Dickey affidavit and

attached payment history, such payments that had been made were reflected in the

payment history. Appellant does not dispute that the modification was never

implemented thus the payments being made were insufficient and continually being

utilized to cover shortfalls from the preceding months. Thus, we find that appellant failed

to rebut the evidence of the amount owed that was set forth by appellee.

                                     Equitable Relief

       {¶ 26} Appellant’s final argument sets forth the general proposition that equity

should preclude foreclosure in this case. Appellant argues that prior to a judgment of

foreclosure, all courts must address two questions: first, whether there was a default on

the note and second as to the mortgage, whether “‘the equity of redemption should be

foreclosed.’” Gevedon v. Hotopp, 2d Dist. Montgomery No. 20673, 2005-Ohio-4597, ¶

28, quoting Metropolitan Life Ins. Co. v. Triskett Illinois, Inc., 97 Ohio App.3d 228, 234,

646 N.E.2d 528 (1st Dist.1994).

       {¶ 27} Appellant contends that in weighing the potential harms to each party, she

faces a greater loss than appellee by losing her home. We note that when dealing with a




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large financial institution, this would nearly always be true. This fact alone does not

establish that foreclosure on the mortgage would be inequitable.

       {¶ 28} Appellant’s reliance on the “equity of redemption” language is misplaced.

The term of art allows a mortgagor to redeem the property following default; it is

generally cut off once the mortgagee is granted a judgment in foreclosure. See generally

Hausman v. City of Dayton, 73 Ohio St.3d 671, 653 N.E.2d 1190 (1995).

       {¶ 29} Based on the foregoing, we find that no genuine issue of fact remains, and

that the property was properly foreclosed upon. Appellant’s assignment of error is not

well-taken.

       {¶ 30} On consideration whereof, we find that substantial justice was done the

party complaining and that the judgment of the Erie County Court of Common Pleas is

affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.




                                                                       Judgement affirmed.




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                                                 Deutsche Bank Natl. Trust Co., as Trustee
                                          for the Holders of Morgan Stanley ABS Capital,
                                                Inc., Trust 2004-HE3, Mtge. Pass-Through
                                                 Certificates, Series 2005-HE3 v. Eversole
                                                                         C.A. No. E-16-011




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       ____________________________
                                                       JUDGE
Arlene Singer, J.
                                               ____________________________
Thomas J. Osowik, J.                                   JUDGE
CONCUR.
                                               ____________________________
                                                       JUDGE




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