[Cite as U.S. Bank, N.A. v. Greenless, 2015-Ohio-356.]


STATE OF OHIO                     )                           IN THE COURT OF APPEALS
                                  )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

U.S. BANK, NATIONAL ASSOCIATION                               C.A. No.   14CA010618

        Appellee

        v.                                                    APPEAL FROM JUDGMENT
                                                              ENTERED IN THE
WILLIAM N. GREENLESS, II, et al.                              COURT OF COMMON PLEAS
                                                              COUNTY OF LORAIN, OHIO
        Appellants                                            CASE No.   12CV178711

                                 DECISION AND JOURNAL ENTRY

Dated: February 2, 2015



        CARR, Judge.

        {¶1}     Appellant William Greenless II appeals the judgment of the Lorain County Court

of Common Pleas that granted summary judgment in favor or appellee U.S. Bank, N.A. This

Court reverses and remands.

                                                         I.

        {¶2}     U.S. Bank filed a complaint for foreclosure against Mr. Greenless and Stephanie

Shank, asserting that the terms and conditions of the promissory note had been breached and that

the bank had satisfied all conditions precedent pursuant to the note and mortgage. Mr. Greenless

answered and asserted the affirmative defense that U.S. Bank had failed to give him the

necessary notices pursuant to the terms of the note and mortgage. Nine months after filing its

complaint, U.S. Bank notified the court that it was placing its foreclosure action on “internal

hold” because the defendants had qualified for a trial loan modification plan. The trial court,

therefore, transferred the case to its inactive docket. Six months later, U.S. Bank moved to
                                                 2


reactivate the case given the defendants’ alleged failure to participate in the loss mitigation plan.

The court reactivated the case and set a dispositive motions briefing schedule.

       {¶3}    U.S. Bank filed a motion for default judgment against Ms. Shank and a motion for

summary judgment against Mr. Greenless. The trial court granted default judgment in favor of

U.S. Bank against Ms. Shank and noted that a motion for summary judgment remained pending.

Mr. Greenless responded in opposition to the motion for summary judgment, and U.S. Bank

replied. The trial court issued a judgment entry in which it granted summary judgment in favor

of U.S. Bank against Mr. Greenless, granted default judgment in favor of the bank against all

remaining defendants, and entered a decree of foreclosure. Mr. Greenless filed a timely appeal

and the trial court stayed its judgment pending appeal. Mr. Greenless raises two assignments of

error which this Court consolidates to facilitate review.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT
       TO US BANK, AS THERE WAS A GENUINE ISSUE OF MATERIAL FACT
       AS TO WHETHER US BANK HAD SATISFIED ALL CONDITIONS
       PRECEDENT.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT
       TO THE PLAINTIFF US BANK, AS THERE WERE GENUINE ISSUES OF
       MATERIAL FACT REMAINING AND THE PLAINTIFF WAS NOT
       ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW.

       {¶4}    Mr. Greenless argues that the trial court erred by granting summary judgment in

favor of U.S. Bank, because genuine issues of material fact exist regarding whether the bank met

all conditions precedent pursuant to the note and mortgage before seeking foreclosure. In

addition, Mr. Greenless argues that the affidavit on which the bank relied in support of its motion
                                                 3


for summary judgment was not based on personal knowledge and, moreover, that it failed to

address the issue of the satisfaction of the conditions precedent regarding notice of default to the

lender. This Court agrees that the trial court erred by granting summary judgment in favor of

U.S. Bank.

       {¶5}    This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio

App.3d 7, 12 (6th Dist.1983).

       {¶6}    Pursuant to Civ.R. 56(C), summary judgment is proper if:

       (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
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

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

       {¶7}    To prevail on a motion for summary judgment, the party moving for summary

judgment must be able to point to evidentiary materials that 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.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once a moving party satisfies its burden of

supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to

Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere

allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine
                                                4


triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d

447, 449 (1996).

       {¶8}    The non-moving party’s reciprocal burden does not arise until after the moving

party has met its initial evidentiary burden. To do so, the moving party must set forth evidence

of the limited types enumerated in Civ.R. 56(C), specifically, “the pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact[.]” Civ.R. 56(C) further provides that “[n]o evidence or stipulation may be

considered except as stated in this rule.”

       {¶9}    As an initial matter, this Court considers whether the trial court erred by granting

summary judgment in favor of U.S. Bank because the bank employee’s affidavit underlying the

motion for summary judgment was not based on personal knowledge. This Court has recently

noted a significant problem in foreclosure cases with affidavits submitted by bank employees in

support of the banks’ motions for summary judgment. In Bank of America, N.A. v. Loya, 9th

Dist. Summit No. 26973, 2014-Ohio-2750, this Court reversed an award of summary judgment

to the bank because the bank employees failed to substantiate their knowledge relevant to any

default by the homeowner. We wrote:

       [A]ffidavits submitted in support of or in opposition to motions for summary
       judgment 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. Generally, a mere
       assertion of personal knowledge satisfies the personal knowledge requirement of
       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 the affiant has personal
       knowledge of the facts in the affidavit. If particular averments contained in an
       affidavit suggest that it is unlikely that the affiant has personal knowledge of
       those facts, [however,] then * * * something more than a conclusory averment
       that the affiant has knowledge of the facts [is] required. This Court cannot infer
       personal knowledge from the averment of personal knowledge alone.

(Internal citations and quotations omitted) Loya at ¶ 12.
                                                 5


       {¶10} In Loya, we were not persuaded that the affiants possessed the requisite personal

knowledge to testify regarding matters germane to the foreclosure action based merely on their

statuses as “assistant vice presidents” of the bank without any explanation of their job

responsibilities and that they were familiar with the “type of records” at issue. ¶ 13. In addition,

the documents appended to their affidavits and on which they relied to aver that the bank

possessed the note at the relevant time did not support their averments. ¶ 13-14. This Court

concluded that the affiants’ averments, having no clear basis of personal knowledge, required us

to make inferences on behalf of the bank, contrary to a consideration of a motion for summary

judgment. Id. at ¶ 15.

       {¶11} A few months after deciding Loya, we confronted similar deficiencies in a bank

employee’s affidavit in a foreclosure action. Bank of New York Mellon v. Villalba, 9th Dist.

Summit No. 26709, 2014-Ohio-4351. Again, the bank’s affiant did not describe her specific job

responsibilities, but merely averred that she was familiar with the types of records at issue and

that she had reviewed them. ¶ 11. This Court noted that the bank employee’s affidavit was “not

the model of clarity, and the imprecise language used seems to indicate that she lacked personal

knowledge [regarding the issue].” ¶ 13. Certain averments were written in the alternative,

giving rise to the lack of clarity. Id.1 Given such indicia of a lack of personal knowledge by the

affiant, we reversed the trial court’s award of summary judgment to the bank on the issue

implicated by the employee’s affidavit.

       {¶12} In the instant case, U.S. Bank appended the affidavit of Jennifer Crabtree in

support of its motion for summary judgment. Although Ms. Crabtree’s affidavit is more detailed


       1
         In addition, she averred that her knowledge that the bank was in possession of the note
was based upon her review of the business records attached to her affidavit. However, the
records attached were not sufficient to permit her to make that attestation. ¶ 13.
                                                6


than those we reviewed in Loya and Villalba, Ms. Crabtree merely identified herself as an officer

of the bank without explaining her specific job responsibilities. Although she explained how

U.S. Bank maintains its records and that she personally examined those records relating to the

subject mortgage loan, she neither identified the nature of those records with particularity nor

attached all necessary documents to evidence payment history and notice of default and

opportunity to cure. Ms. Crabtree averred that she has access to the bank’s records and relies on

them regularly, although she did not explain in what capacity she relies on them. While the

subject affidavit contains more information than others we have reviewed, it still does not fully

enunciate the bases for Ms. Crabtree’s knowledge relevant to Mr. Greenless’ loan. While this

Court would prefer that such affidavits identify with greater specificity the affiant’s title, job

responsibilities, and authority giving rise to her familiarity with the relevant records, Ms.

Crabtree’s averments regarding how the bank maintains its business records and that she has

access to, and regularly uses and relies upon such records “in [her] position,” sufficiently

distinguishes this affidavit from those in Loya and Villalba. Unlike the paucity of any indicia of

personal knowledge in those cases, Ms. Crabtree’s affidavit provides some basis underlying her

personal knowledge in this case.

       {¶13} Nevertheless, while Ms. Crabtree averred that Mr. Greenless failed to make

payments as required by the terms of the note and mortgage, she failed to append any

documentation in support of that averment. Thus, as in both Loya and Villalba, “[h]aving

reviewed the business records attached to Ms. [Crabtree’s] affidavit, we cannot conclude that a

review of the records would have allowed her to attest to the fact[s]” relevant to Mr. Greenless’

default. Loya at ¶ 14; Villalba at ¶ 16. Mr. Greenless, however, does not challenge this aspect of

Ms. Crabtree’s knowledge. Accordingly, this Court is foreclosed from reversing on this basis.
                                                7


       {¶14} Mr. Greenless, however, does challenge the adequacy of the affidavit with regard

to Ms. Crabtree’s averment that U.S. Bank met all conditions precedent prior to accelerating his

loan. The bank has argued that Mr. Greenless has admitted to the bank’s compliance by failing

to allege with particularity in his answer to the complaint its failure to meet all conditions

precedent prior to seeking foreclosure.

       {¶15} Section 6(C) of the note addresses notice of default and states:

       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 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.

       {¶16} Section 7 of the note addresses the giving of notices and states, in relevant part:

       Unless applicable law requires a different method, any notice that must be given
       to me under this Note will be given by delivering it or by mailing it by first class
       mail to me at the Property Address above or at a different address if I give the
       Note Holder a notice of my different address.

       {¶17} Section 22 of the mortgage addresses acceleration and states, in relevant part:

       Lender shall give notice to Borrower prior to acceleration following Borrower’s
       breach of any covenant of agreement in this Security Instrument (but not prior to
       acceleration under Section 18 [regarding transfer of the property or beneficial
       interest therein] 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 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.

       {¶18} Section 15 of the mortgage addresses notices and states, in pertinent part:
                                                8


       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 * * *.

       {¶19} This Court has held that “‘[w]here 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).” LaSalle Bank, N.A. v. Kelly, 9th

Dist. Medina No. 09CA0067-M, 2010-Ohio-2668, ¶ 13, quoting First Fin. Bank v. Doellman,

12th Dist. Butler No. CA2006-02-029, 2007-Ohio-222, ¶ 20. Civ.R. 9(C) states: “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.          A denial of performance or

occurrence shall be made specifically and with particularity.” This Court has recognized that

“‘[t]he effect of the failure to deny conditions precedent in the manner provided by Civ.R. 9(C)

is that they are deemed admitted.’” Deutsche Bank Natl. Trust Co. v. Byrd, 9th Dist. Summit No.

27280, 2014-Ohio-3704, ¶ 10, quoting Bank of Am., N.A. v. Thompson, 2d Dist. Montgomery

No. 25952, 2014-Ohio-2300, ¶ 16, quoting CitiMtge, Inc. v. Byington, 6th Dist. Erie No. E-12-

003, 2013-Ohio-3950, ¶ 11. See also Liberty Savs. Bank, F.S.B. v. Bowie, 9th Dist. Summit

27126, 2014-Ohio-1208, ¶ 13.

       {¶20} In this case, U.S. Bank alleged generally in its complaint that it “has satisfied all

conditions precedent pursuant to the Promissory Note [and] * * * Mortgage.” In his answer, Mr.

Greenless asserted as an affirmative defense that the bank had “failed to give the proper and

requisite notices to [him] pursuant to the terms of the Note and Mortgage in which [U.S. Bank] is

now attempting to foreclose.” This Court need not address the bank’s argument that Mr.

Greenless’ denial failed the particularity requirement enunciated in Civ.R. 9(C) so as to

constitute an admission because U.S. Bank failed to allege Mr. Greenless’ admission in its
                                                9


motion for summary judgment. This Court confronted a similar argument by a bank in Wells

Fargo Bank, N.A. v. Beirne, 9th Dist. Medina No. 09CA0103-M, 2011-Ohio-6678. In that case,

we declined to recognize such argument where the bank had failed to assert in its motion for

summary judgment that the homeowner admitted to the bank’s performance of all conditions

precedent. Id. at ¶ 15 (“Because Wells Fargo made no mention of possible admissions in the

pleadings in its motion for summary judgment, the question of whether the purported general

denial constituted an admission by the Beirnes is not before us.”). See also U.S. Bank, N.A. v.

Coffey, 6th Dist. Erie No. E-11-026, 2012-Ohio-721, ¶ 40. Here, U.S. Bank failed to note the

possibility of admissions by Mr. Greenless in its motion for summary judgment. Accordingly,

this Court declines to address the bank’s argument that Mr. Greenless admitted to its

performance of all conditions precedent.

       {¶21} With regard to the substantive issue of whether the trial court’s award of summary

judgment to the bank was warranted, this Court concludes that U.S. Bank failed to meet its initial

Dresher burden to demonstrate that it had performed all conditions precedent prior to

acceleration and foreclosure.

       {¶22} In support of its motion for summary judgment, U.S. Bank’s affiant addressed its

performance of conditions precedent in a mere two sentences: “All conditions precedent to

accelerate the loan have been met and the loan has been accelerated, making the entire unpaid

principal balance due and owing * * *. Attached hereto as Exhibit ‘D’ is a true and correct copy

of the acceleration letter sent to William N. Greenless, II and Stephanie M. Shank.” Exhibit D

appears to be a copy of a letter addressed to Mr. Greenless and Ms. Shank, dated October 24,

2012, notifying them as follows:

       Due to the status of your account, it is necessary to initiate a foreclosure action.
       The account has been referred to our attorney to begin legal proceedings
                                                 10


       immediately. All prior reinstatement and payoff figures are now void. A current
       reinstatement figure or any other information needed may be obtained from our
       legal counsel listed below * * *.

       {¶23} Ms. Crabtree made no averments in her affidavit regarding the method used to

send this letter. Accordingly, U.S. Bank failed to present any evidence that it complied with its

obligation to send any notice of acceleration and/or foreclosure by first class mail. Ms. Crabtree

further failed to aver that the letter was actually delivered to either Mr. Greenless or Ms. Shank if

it was sent by any means other than first class mail. In U.S. Bank Natl. Assn. v. Umphrey, 9th

Dist. Summit No. 27172, 2014-Ohio-4461, we concluded that the bank failed to meet its initial

burden in part because of an identical deficiency. Id. at ¶ 21 (addressing the bank’s purported

notice of default and noting that the affiant “[did] not, however, state whether the letter was sent

or by what method (i.e., first-class mail).”).

       {¶24} Moreover, Exhibit D makes no reference to the information of the type required

pursuant to the mortgage document prior to the bank’s seeking foreclosure. Specifically, the

letter does not inform Mr. Greenless that he is in default. Rather it merely makes a vague

reference to “the status of [the] account,” requiring this Court to infer that that status is one of

default. As we discussed in Loya, supra, such inferences on behalf of the moving party are not

appropriate to the determination of a motion for summary judgment. Id. at ¶ 15 (“At the

summary judgment stage, however, evidence must be viewed and inferences must be drawn in a

light most favorable to the non-moving party.”). In addition, U.S. Bank’s letter fails to notify

Mr. Greenless of the action required to cure the default and provide a date not less than 30 days

from the date of the notice in which he may cure the default. Under these circumstances, U.S.

Bank failed to meet its initial Dresher burden to demonstrate that it complied with all conditions

precedent prior to acceleration and foreclosure. Accordingly, the trial court erred by concluding
                                                11


that no genuine issues of material fact existed and that U.S. Bank was entitled to judgment as a

matter of law. Mr. Greenless’ assignments of error are sustained.

                                                III.

       {¶25} Mr. Greenless’ assignments of error are sustained. The judgment of the Lorain

County Court of Common Pleas is reversed and the cause remanded for further proceedings

consistent with this opinion.

                                                                             Judgment reversed,
                                                                            and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       DONNA J. CARR
                                                       FOR THE COURT
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BELFANCE, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

JOHN MCINTYRE, Attorney at Law, for Appellant.

BARBARA A. BORGMANN, Attorney at Law, for Appellee.
