[Cite as Bank of New York Mellon v. Roulston, 2017-Ohio-8400.]



                   Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 104908



              BANK OF NEW YORK MELLON, ET AL.
                                                         PLAINTIFFS-APPELLEES

                                                   vs.

                     THOMAS ROULSTON, III, ET AL.
                                                         DEFENDANTS-APPELLANTS




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-14-832602

             BEFORE: Blackmon, J., Kilbane, P.J., and Stewart, J.
             RELEASED AND JOURNALIZED: November 2, 2017
ATTORNEYS FOR APPELLANTS

Marc E. Dann
William C. Behrens
Emily White
The Dann Law Firm Co., L.P.A.
P.O. Box 6031040
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEES

For Bank of New York Mellon

Ryan F. Hemmerle
John Rollin Tarter
Carrie L. Davis
Reisenfeld & Associates
3962 Red Bank Road
Cincinnati, Ohio 45227

Gregory A. Stout
Reisenfeld & Associates
8050 Hosbrook Road, Suite 107
Cincinnati, Ohio 45236

J. P. Morgan Chase Bank, NA
f.k.a. Citizens Bank
1111 Polaris Parkway
Columbus, Ohio 43240

For Skoda Minotti Company

Robert B. Weltman
Weltman Weinberg & Reis Co., L.P.A.
323 W. Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

                                      -ii-
For Nottinghill Investment Advisers, Ltd.

Bradley D. McPeek
Lindhorst & Dreidame Co., L.P.A.
312 Walnut Street, Suite 2300
Cincinnati, Ohio 45202

Also Listed

State of Ohio, Dept. of Taxation
150 East Gay Street, 21st Floor
Columbus, Ohio 43215

Thomas Roulston, III
3615 Superior Avenue, East
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, J.:

       {¶1} Christine L. King-Roulston (“Christine”) appeals from the trial court’s

granting summary judgment to The Bank of New York Mellon 1 (“BONY”) in this

foreclosure case and assigns the following error for our review:

       I. The trial court erred by granting a judgment of foreclosure based upon
       unreliable and unauthenticated hearsay evidence that did not qualify under
       the business records exception.

       {¶2} Having reviewed the record and pertinent law, we reverse and remand to

the trial court. The apposite facts follow.

       {¶3} On October 26, 2006, Thomas Roulston, III (“Thomas”) executed a note

with Countrywide Home Loans, Inc. (“the Note”) for $800,000, plus interest.                   As

security for the Note, Thomas and his wife Christine executed a mortgage on property

located at 3950 Waterford Court in Beachwood, Ohio. Subsequently, the Note was

endorsed to BONY. On May 1, 2010, Thomas defaulted on the note.                   On August 9,

2011, the mortgage was assigned to BONY by Mortgage Electronic Registration Systems,

Inc. (“MERS”). On February 10, 2012, notice of default on the mortgage was sent to

Thomas, and on October 10, 2013, notice of default on the mortgage was sent to

Christine.




       1
          Plaintiff’s full name is The Bank of New York Mellon, f.k.a. The Bank of New York, as
Trustee for the Certificate Holders of the CWABS, Inc., Asset-Backed Certificates, Series 2006-24.
       {¶4} On September 11, 2014, BONY filed a foreclosure complaint against

Thomas, Christine, and various alleged lien holders claiming an interest in the property.

The complaint alleged that Thomas owed $892,400.08, plus 4.5% interest per annum

from April 1, 2010, and various fees on the Note.

       {¶5} On June 20, 2016, the magistrate issued a decision granting BONY’S

summary judgment motion, and on August 8, 2016, the court issued an order adopting

this decision. It is from this order that Christine timely appeals.

                                   Summary Judgment

       {¶6} Appellate review of granting summary judgment is de novo. Pursuant to

Civ.R. 56(C), the party seeking summary judgment must prove that (1) there is no

genuine issue of material fact; (2) they are entitled to judgment as a matter of law; and (3)

reasonable minds can come to but one conclusion and that conclusion is adverse to the

nonmoving party. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

Furthermore, to support summary judgment motions, “sworn or certified” documents may

be submitted, accompanied by an affidavit, which “shall be made on personal knowledge,

shall set forth 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).

       {¶7} Once the movant satisfies this burden, it shifts to the opposing party, who

“may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s

response, by affidavit or as otherwise provided in this rule, must set forth specific facts

showing that there is a genuine issue for trial.” Id.
      {¶8} To succeed in a foreclosure action, a plaintiff must present evidence that:

(1) it is the holder of the note and mortgage or otherwise entitled to enforce the note and

mortgage; (2) the borrower is in default; and (3) the conditions precedent of the mortgage

and note have been met. Additionally, the plaintiff must show the amount of principal

and interest due. See HSBC Bank USA, N.A. v. Surrarrer, 8th Dist. Cuyahoga No.

100039, 2013-Ohio-5594, ¶ 16.

                               Admissibility of Evidence

      {¶9} “The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343

(1987). Generally, hearsay is inadmissible unless it falls under one of the exceptions in

Evid.R. 803. The hearsay exception at issue in the case at hand concerns business

records, which are admissible under the following standard:

      A memorandum, report, records, 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.
Evid.R. 803(6).

       {¶10} On appeal, Christine argues that the loan payment records at issue are

“flagged as unreliable by the business that produced them, and * * * authenticated by an

individual without sufficient personal knowledge of the record-keeping system through

which they were created.”       BONY, on the other hand, argues that it submitted

documentary evidence, along with an affidavit from a representative of loan servicer

Specialized Loan Servicing, L.L.C. (“SLS”), consisting of the note, the mortgage, the

assignment, the payment history showing default, and notice of default letters. BONY

further argues that this evidence is unchallenged and sufficient under Civ.R. 56.

       {¶11} Christine’s first argument is that the payment records BONY submitted are

unreliable, because the following notice is on one of the pages:

       Bank Of America Home Loans provides you with detailed reports under the
       terms of your agreement with it. In contrast, the information provided
       herein is in a user friendly summary format and should not [be] considered
       as a report. Among other things, the information may be incomplete, may
       not provide sufficient detail for your own reporting or audit purposes, may
       not be real time data, and therefore it should not be relied upon by you.

       {¶12} In response, BONY argues that Christine failed to preserve this issue for

appellate review by not objecting to it in the trial court. Our review of the summary

judgment briefs filed in the trial court shows that this issue was not addressed. Christine

challenged summary judgment on the basis that “the Affidavit of Cynthia Wallace was

not made upon personal knowledge and failed to authenticate the necessary evidence for

foreclosure.”
       {¶13} “A litigant’s failure to raise an argument in the trial court waives the

litigant’s right to raise the issue on appeal.” Foster v. Wells Fargo Fin. Ohio, Inc., 195

Ohio App.3d 497, 2011-Ohio-4632, 960 N.E.2d 1022, ¶ 24 (8th Dist.).             Therefore,

Christine’s argument that the Bank of America Home Loans records are unreliable is not

properly before this court.

       {¶14} We turn to Christine’s argument that BONY’s documents are

unauthenticated, because Wallace did not have personal knowledge of the records.

Wallace’s affidavit states that she is an employee of SLS, the loan servicing agent for

BONY.     Wallace has “access to SLS’s business records maintained in the ordinary

course of regularly conducted business activity, including the business records for and

relating to [Thomas’s] loan.” Wallace states that her affidavit is “based upon my review

of those records relating to [Thomas’s] loan and from my own personal knowledge of

how they are kept and maintained.”

       {¶15} Wallace’s affidavit further states that she also reviewed Christine’s file and

records from the previous servicer of the Note, Bank of America, including “the loss

mitigation notes, correspondence, payment history, the original note, mortgage,

assignment, and origination file.”     Wallace’s affidavit fails to state that she has

familiarity with Bank of America’s record-keeping system.

       {¶16} A witness authenticating records need not have personal knowledge of the

creation of the document. See State v. Davis, 62 Ohio St.3d 326, 581 N.E.2d 1362

(1991). Rather, the witness must have personal knowledge of the record-keeping system
in which the documents were maintained. See Hetzer-Young v. Precision Airmotive

Corp., 184 Ohio App.3d 516, 2009-Ohio-5365, 921 N.E.2d 683, ¶ 43 (8th Dist.). More

precisely as it relates to foreclosure cases, this court has held that the affidavit of a loan

servicing agent may be sufficient to authorize loan documents. See, e.g., Deutsche Bank

Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 27; United

States Bank Natl. Assn. v. Turner, 8th Dist. Cuyahoga No. 97935, 2012-Ohio-4592, ¶ 5.

       {¶17} However, this does not mean that all employees of loan servicing companies

qualify to testify as witnesses about another company’s loan documents. In Keeva J.

Kekst Architects v. George, 8th Dist. Cuyahoga No. 70835, 1997 Ohio App. LEXIS 2077

(May 15, 1997), this court held that the witness must show “that he or she is sufficiently

familiar with the operation of the business and with the circumstances of the preparation,

maintenance, and retrieval of the record in order to reasonably testify on the basis of this

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

of business.”     See also Monroe v. Steen, 9th Dist. Summit No. C.A. No. 24342,

2009-Ohio-5163, ¶ 14 (noting that merely receiving and retaining business records from

another company does not necessarily demonstrate a “working knowledge of the specific

record-keeping system that produced the document”).

       {¶18} Wallace works for SLS, which is the company that services BONY’s loans,

and Wallace’s affidavit demonstrates that she is qualified to authenticate documents that

SLS and BONY created and maintained, even if she was not the person who prepared

these documents. Nothing in the record, nor in Wallace’s affidavit, shows that she is
qualified to authenticate records created by Bank of America, or any company other than

SLS and BONY, for that matter.

       {¶19} Upon review, we find that there are genuine issues of material fact regarding

the authentication of the evidentiary materials BONY submitted, because Wallace’s

affidavit is insufficient as to some of the documents it references. Accordingly, the court

 erred in granting summary judgment, and Christine’s sole assigned error is sustained.

       {¶20} Judgment reversed and remanded to the trial court for proceedings

consistent with this opinion.

       It is ordered that appellants recover from appellees costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas

Court to carry this judgment into execution.




       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

MARY EILEEN KILBANE, P.J., and
MELODY J. STEWART, J., CONCUR
