[Cite as Beneficial Fin. I, Inc. v. Labraney, 2014-Ohio-1801.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



BENEFICIAL FINANCIAL I, INC.                        :            JUDGES:
                                                    :            Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                          :            Hon. Sheila G. Farmer, J.
                                                    :            Hon. Patricia A. Delaney, J.
-vs-                                                :
                                                    :
GREG LABRANEY, ET AL.                               :            Case No. 13 CA 32
                                                    :
        Defendants-Appellants                       :            OPINION




CHARACTER OF PROCEEDING:                                         Appeal from the Court of Common
                                                                 Pleas, Case No. 13 FR 03 0152




JUDGMENT:                                                        Affirmed




DATE OF JUDGMENT:                                                April 28, 2014




APPEARANCES:

For Plaintiff-Appellee                                           For Defendants-Appellants

MELISSA L. ZUJKOWSKI                                             BRIAN K. DUNCAN
WARREN T. MCCLURG, II                                            BRYAN D. THOMAS
1660 West 2nd Street                                             600 South High Street
Suite 1100                                                       Suite 100
Cleveland, OH 44113                                              Columbus, OH 43215
Knox County, Case No. 13 CA 32                                                         2

Farmer, J.

      {¶1}   On March 25, 2013, appellee, Beneficial Financial I, Inc., filed a complaint

in foreclosure against appellants, Greg and Maureen LaBraney, for failure to pay on a

note secured by a mortgage.

      {¶2}   On July 19, 2013, appellee filed a motion for summary judgment.          By

judgment entry filed October 31, 2013, the trial court granted the motion and entered a

decree in foreclosure.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶4}   "THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WERE

GENUINE ISSUES OF FACT AND PLAINTIFF WAS NOT ENTITLED TO JUDGMENT

AS A MATTER OF LAW."

                                            I

      {¶5}   Appellant claims the trial court erred in granting summary judgment to

appellee as genuine issues of material fact exist. We disagree.

      {¶6}   Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:



             Civ.R. 56(C)     provides that before summary judgment may be

      granted, it must be determined that (1) no genuine issue as to any
Knox County, Case No. 13 CA 32                                                       3


      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 nonmoving party, that conclusion is

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

      made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,

      628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50

      Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.



      {¶7}   As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35 (1987).

      {¶8}   Specifically, appellant argues issues exist as to whether appellee is the

holder in due course, violations of the Real Estate Settlement Procedures Act, Ohio

Consumer Sales Practices Act, and Fair Debt Collections Practices Act, disputes as to

the amount due on the underlying loan and to the appraisal, and fraud.

      {¶9}   Appellee supported its motion for summary judgment with the affidavit of

Tanya Wood, vice-president and assistant secretary of appellee's Administrative

Services Division.   She averred that she has personal knowledge of the business

records appellee maintains in servicing mortgage loans, and appellee is and was in

possession of the original note at the time of the filing of the complaint. She further

averred that a demand default letter was mailed to appellants on January 4, 2013
Knox County, Case No. 13 CA 32                                                        4


(attached to the affidavit as Exhibit A), and said default had not been cured. The last

payment on the loan was made in May 2011 for $842.14, and the amount due and

owing was $147,718.34 (Exhibit B).

      {¶10} In LaSalle Bank National Association v. Street, 5th Dist. Licking App. No.

08CA60, 2009-Ohio-1855, ¶ 20-22, this court stated the following:



             "To qualify for admission under Rule 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.' " State v. Davis (2008), 116 Ohio St.3d 404, 429, 880 N.E.2d 31,

      quoting Weissenberger, Ohio Evidence Treatise (2007) 600, Section

      803.73.

             Ohio courts have defined "personal knowledge" as "knowledge

      gained through firsthand observation or experience, as distinguished from

      a belief based upon what someone else has said." Zeedyk v. Agricultural

      Soc. of Defiance Cty., Defiance App. No. 4-04-08, 2004-Ohio-6187, ¶ 16,

      quoting Bonacorsi v. Wheeling & Lake Erie Railway Co. (2002), 95 Ohio

      St.3d 314, 320, 767 N.E.2d; Black's Law Dictionary (7th Ed. Rev.1999)

      875.   Affidavits, which merely set forth legal conclusions or opinions

      without stating supporting facts, are insufficient to meet the requirements
Knox County, Case No. 13 CA 32                                                          5

      of Civ.R. 56(E). Tolson v. Triangle Real Estate, Franklin App. No. 03AP-

      715, 2004-Ohio-2640, ¶ 12.        However, self-serving affidavits may be

      offered relative to a disputed fact, rather than a conclusion of law.

      CitiMortgage, Inc. v. Ferguson, Fairfield App.No.2006CA00051, 2008-

      Ohio-556, ¶ 29.

             Ohio law recognizes that personal knowledge may be inferred from

      the contents of an affidavit. See Bush v. Dictaphone Corp., Franklin App.

      No. 00AP1117, 2003-Ohio-883, ¶ 73, citing Beneficial Mortgage Co. v.

      Grover (June 2, 1983), Seneca App. No. 13-82-41.



      {¶11} In Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. Stark No. 2010-

CA00291, 2011-Ohio-3202, ¶ 27, this court further stated:



             In Residential Funding Company v. Thorne, Lucas App. No. L-09-

      1324, 2010-Ohio-4271, the Sixth District Court of Appeals held: "

      'Personal knowledge' has been defined as knowledge of factual truth

      which does not depend on outside information or hearsay." Thorne at

      paragraph 64, citation deleted. Further, "An affiant's mere assertion that

      he has personal knowledge of the facts asserted in an affidavit can satisfy

      the personal knowledge requirement of Civ.R. 56(E). See Bank One, N.A.

      v. Swartz, 9th Dist. No. 03CA008308, 2004-Ohio-1986, paragraph 14. A

      mere assertion of personal knowledge satisfies Civ.R. 56(E) if the nature

      of the facts in the affidavit combined with the identity of the affiant creates
Knox County, Case No. 13 CA 32                                                          6


       a reasonable inference that the affiant has personal knowledge of the

       facts in the affidavit. Id." Thorne at paragraph 70.



       {¶12} A copy of the original note and mortgage identifies Beneficial Ohio, Inc. as

the "lender," and Beneficial Ohio, Inc. was merged out of existence to appellee. See

Loan Agreement, Mortgage, and Certificate of Secretary of State of Ohio, attached to

the March 25, 2013 Complaint as Exhibits A, B, and C.

       {¶13} In response to appellee's motion for summary judgment, appellants filed a

combined motion, requesting additional time for discovery pursuant to Civ.R. 56(F) and

a memorandum contra (July 31, 2013). The trial court denied the request for additional

time on October 30, 2013. In their memorandum contra, appellants claimed the affidavit

and documents presented by appellee failed to establish that appellee was entitled to

judgment. No arguments relative to the facts were made other than what was alleged in

their answer and their affirmative defenses, and they did not file any affidavits.

       {¶14} Civ.R. 56(E) states in pertinent part:



                When a motion for summary judgment is made and supported as

       provided in this rule, an adverse party 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. If the party does not so

       respond, summary judgment, if appropriate, shall be entered against the

       party.
Knox County, Case No. 13 CA 32                                                              7




       {¶15} In their answer filed May 30, 2013, appellants denied each and every

allegation in the complaint in the manner of a general denial, and a request for dismissal

pursuant to Civ.R. 12(B)(6) was made.          Appellants presented affirmative defenses

including statute of limitations, waiver, release, laches, mistake, negligence, statute of

frauds, lack of consideration, breach of contract, and avoidance. Appellants further

claimed appellee was not a real party of interest, failed to join necessary parties,

violated the Federal Truth in Lending statute, RESPA, FDCPA, and the Ohio Consumer

Sales Practices Act, failed to mitigate damages, and failed to establish that it was the

holder in due course.

       {¶16} Appellee addressed each of these defenses, and rebutted their

applicability to the case sub judice. These challenges remain unrebutted by appellants.

       {¶17} We have examined the affidavit, exhibits, and attachments to the

complaint, and find they satisfy the requirements of the Ohio Rules of Evidence. The

facts averred remain unchallenged by appellants. Appellants cite to no facts or case

law that would create any general issue of material fact. The statute of limitations

defense and laches are not available as the complaint was filed two months after the

default. This court has ruled the Ohio Consumer Sale Practice Act does not apply to

banks, and no facts were alleged to support appellants' arguments relative to the other

alleged statutory violations. Residential Credit Solutions, Inc. v. Virgili, 5th Dist. Ashland

No. 2011-COA-024, 2012-Ohio-506.

       {¶18} Upon review, we find the trial court did not err in granting summary

judgment to appellee.
Knox County, Case No. 13 CA 32                                             8


      {¶19} The sole assignment of error is denied.

      {¶20} The judgment of the Court of Common Pleas of Knox County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.




SGF/sg 411
