[Cite as PNC Bank, Natl. Assn. v. West, 2014-Ohio-161.]


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

PNC BANK, NATIONAL ASSOCIATION                            C.A. No.   12CA0061

        Appellee

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
MICHAEL R. WEST, et al.                                   COURT OF COMMON PLEAS
                                                          COUNTY OF WAYNE, OHIO
        Appellants                                        CASE No.   10-CV-0693

                                DECISION AND JOURNAL ENTRY

Dated: January 21, 2014



        WHITMORE, Judge.

        {¶1}    Appellants, Michael and Dena West (collectively, “the Wests”), appeal from the

judgment of the Wayne County Court of Common Pleas, granting summary judgment in favor of

Appellee, PNC, National Association (“PNC”). This Court reverses.

                                                      I

        {¶2}    In June 2001, the Wests executed a promissory note in favor of National City

Bank to purchase a property in Wooster, Ohio. Along with the note, the Wests also signed a

mortgage granting a security interest in the property to National City Bank. On that same day,

National City Bank executed an assignment of the mortgage to National City Mortgage Co. This

assignment was never recorded. Approximately five months later, in November 2001, National

City Mortgage Co. assigned the mortgage and the note to Federal Home Loan Mortgage

Corporation (“Freddie Mac”). This assignment was also never recorded.
                                                2


       {¶3}    In September 2010, PNC, as successor by merger to National City Bank, filed a

complaint in foreclosure against the Wests. PNC attached a copy of the Wests’ note, which

contained one undated indorsement from National City Bank to National City Mortgage Co.

Additionally, PNC attached a copy of the Wests’ mortgage. No assignments were attached to the

complaint.

       {¶4}    In June 2011, PNC filed a motion for summary judgment. PNC attached, among

other things, copies of the Wests’ note and mortgage. These copies were identical to the copies

that were attached to the initial complaint. Ultimately, the court denied PNC’s motion for

summary judgment. In July 2012, PNC filed a second motion for summary judgment. The copy

of the note attached to this motion showed an additional, undated indorsement from National

City Mortgage Co. to blank. Additionally, PNC attached uncertified photocopies of documents

to establish National City Bank had merged into PNC. The court granted PNC’s motion for

summary judgment over the Wests’ opposition.           The Wests now appeal and raise two

assignments of error for our review.

                                                II

                               Assignment of Error Number One

       THE TRIAL COURT ERRED IN DETERMINING PLAINTIFF HAD MET
       THE STANDARDS REQUIRED FOR SUMMARY JUDGMENT WITH
       RESPECT TO THE ISSUE OF WHETHER OR NOT PLAINTIFF WAS THE
       HOLDER OF THE NOTE AND MORTGAGE, OR THE PARTY INITIATED
       (sic) TO ENFORCE THE INSTRUMENT.

       {¶5}    In their first assignment of error, the Wests argue that the court erred in granting

summary judgment in favor of PNC because it did not establish that it was the real party in

interest. We agree.

       {¶6}    Pursuant to Civ.R. 56(C), summary judgment is proper if:
                                                 3


       (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). This Court reviews a trial court’s

decision to grant a motion for summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio

St.3d 102, 105 (1996).

       {¶7}    The party moving for summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts of the record that show the absence of

a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). Once this

burden is satisfied, the non-moving bears the burden of offering specific facts to show a genuine

issue for trial. See Civ.R. 56(E); Dresher at 293.

       {¶8}    “[A] party lacks standing to invoke the jurisdiction of the court unless he has, in

an individual or representative capacity, some real interest in the subject matter of the action.”

(Emphasis sic.) Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-

5017, ¶ 22, quoting State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio

St.2d 176, 179 (1973). “The real party in interest in a foreclosure action ‘is the current holder of

the note and mortgage.’” Quantum Servicing Corp. v. Haugabrook, 9th Dist. Summit No.

26542, 2013-Ohio-3516, ¶ 8, quoting Wells Fargo Bank N.A. v. Horn, 9th Dist. Lorain No.

12CA010230, 2013-Ohio-2374, ¶ 10. Accord BAC Home Loan Serv. v. McFerren, 9th Dist.

Summit No. 26384, 2013-Ohio-3228, ¶ 13. Standing is determined at the time the complaint is

filed. Schwartzwald at ¶ 24.

       {¶9}    Attached to its second motion for summary judgment, PNC attached a sworn

affidavit of Dorothy Thomas, a mortgage officer with PNC. Thomas averred that she was
                                                 4


competent to testify about the matters contained in the affidavit. Thomas attested that in 2005,

National City Mortgage Co. changed its name to National City Mortgage, Inc. In 2007, National

City Mortgage, Inc. merged into National City Real Estate Services, L.L.C. In 2009, “National

City Bank, along with its wholly owned subsidiary National City Real Estate Services, LLC

merged with and into PNC Bank, National Association.”             Thomas incorporated various

documents attached to her affidavit to support her assertions.1

         {¶10} The Wests objected to the supporting documents in their memorandum in

opposition. Now, on appeal, the Wests argue that the court erred in considering the documents

attached to Thomas’ affidavit when ruling on the bank’s motion for summary judgment because

the documents were not original copies. In support of their argument, the Wests cite Bank of

America, N.A. v. Miller, 194 Ohio App.3d 307, 2011-Ohio-1403 (2d Dist.). In Miller, the court

reviewed its decision in Congress Park Business Ctr. L.L.C. v. Nitelites, Inc., 2d Dist.

Montgomery No. 21262, 2007-Ohio-4200. In that case, one of the parties submitted “a copy of a

certificate of incorporation bearing the signature of the Ohio Secretary of State, made under his

seal.” Miller at ¶ 53, quoting Congress Park Business Ctr. L.L.C. at ¶ 7. The Second District

concluded that the document, despite being a copy, qualified as a self-authenticating document


1
    The documents include:
     1. Photocopies of the following certificates from the Ohio Secretary of State, made under
         seal:
             a. January 4, 2005, National City Mortgage Co. amended its articles to change its
                name to National City Mortgage, Inc.
             b. January 1, 2007, National City Mortgage, Inc. merged into National City Real
                Estate Services L.L.C.
             c. October 1, 2008, National City Mortgage Co. merged into National City Bank.
             d. November 7, 2009, National City Real Estate Services, L.L.C. dissolved.
     2. A certificate by George Long III, Secretary of PNC, detailing National City Bank’s
         merger into PNC on November 6, 2009.
     3. A final approval for National City Bank’s merger into PNC by the Comptroller of the
         Currency.
                                                5


under Evid.R. 902(1) as a document under seal. Miller at ¶ 53; Congress Park Business Ctr.

L.L.C. at ¶ 12. However, the court held that the copy of the certified certificate was not

admissible because there was no supporting testimony of a witness that compared it to the

original, pursuant to Evid.R. 1005. Miller at ¶ 54; Congress Park Business Ctr. L.L.C. at ¶ 12.

Evid.R. 1005, in relevant part, states that “[t]he contents of an official record * * * may be

proved by copy, certified as correct in accordance with Rule 902 * * * or testified to be correct

by a witness who has compared it with the original.”

       {¶11} The certificates from the Secretary of State attached to PNC’s second motion for

summary judgment were photocopies.         These photocopies were not certified as correct in

accordance with Evid.R. 902 and Thomas did not testify that she compared the photocopies with

the originals. See Evid.R. 902(1) and 1005. Therefore, these documents were not properly

before the trial court when ruling on PNC’s motion for summary judgment.

       {¶12} Similarly, the letters from the Comptroller of the Currency and the certificate of

PNC’s Secretary were not admissible as business records under Evid.R. 803(6) and 902(10).

“To qualify for admission under Evid.R. 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 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.”        (Internal quotations and

citations omitted.) Green Tree Servicing, L.L.C. v. Roberts, 12th Dist. Butler No. CA2013-03-

039, 2013-Ohio-5362, ¶ 29.      Thomas’ affidavit fails to establish that the letters from the

Comptroller of the Currency and the certificate of PNC’s Secretary met any of the four

requirements of Evid.R. 803(6). Further, to the extent that the corporate documents attached to
                                                 6


the Secretary of State’s Certificates could be considered business records, the records were

inadmissible for the same reason, i.e., Thomas’ affidavit is deficient in establishing the

foundational requirements of Evid.R. 803(6).

       {¶13} Without the documents establishing that National City Mortgage Co. had merged

into PNC, there remained a genuine issue of material fact. While there is evidence that PNC had

possession of the Wests’ promissory note indorsed in blank, there is conflicting evidence that, at

the time the complaint was filed, the note was indorsed to National City Mortgage Co. Standing

must be established at the time of the commencement of the action. Schwartzwald, 134 Ohio

St.3d 13, 2012-Ohio-5017, at ¶ 24. Because there remained a genuine issue of material fact as to

whether PNC was the real party in interest at the time the foreclosure action was filed, summary

judgment was not appropriate. The Wests’ first assignment of error is sustained.

                                Assignment of Error Number Two

       THE TRIAL COURT ERRED IN DETERMINING PLAINTIFF HAD
       PERFORMED ALL CONDITIONS PRECEDENT TO ITS BEING ABLE TO
       FORECLOSE UPON THE NOTE AND MORTGAGE.

       {¶14} In their second assignment of error, the Wests argue that the court erred when it

granted summary judgment in favor of PNC because it did not show that it met certain conditions

precedent.   In light of our resolution of the Wests’ first assignment of error, their second

assignment of error is not yet ripe for review and we decline to address it.

                                                 III

       {¶15} The Wests’ first assignment of error is sustained and their second assignment of

error is not ripe for review. The judgment of the Wayne County Court of Common Pleas is

reversed, and the cause is remanded for further proceedings consistent with the foregoing

opinion.
                                                 7


                                                                              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 Wayne, 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.




                                                     BETH WHITMORE
                                                     FOR THE COURT



BELFANCE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

EDWIN H. BREYFOGLE, Attorney at Law, for Appellants.

LISA BABISH FORBES and LINDSAY E. DOSS, Attorneys at Law, for Appellee.
