[Cite as Bank of Am. v. Berman, 2014-Ohio-3331.]




                 Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                     No. 101049



                                 BANK OF AMERICA
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                         TEALLA P. BERMAN, ET AL.
                                                         DEFENDANTS-APPELLANTS



                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-12-781367


        BEFORE: E.A. Gallagher, J., S. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: July 31, 2014
ATTORNEYS FOR APPELLANTS

Brian K. Duncan
Bryan D. Thomas
Duncan Law Group, L.L.C.
600 S. High Street
Suite 100
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEES

For Bank of America

Edward G. Bohnert
Reimer, Arnovitz, Chernek & Jeffrey
P.O. Box 39696
30455 Solon Road
Solon, Ohio 44139

James W. Sandy
James S. Wertheim
McGlinchey Stafford, P.L.L.C.
25550 Chagrin Boulevard
Suite 406
Cleveland, Ohio 44122

For Deutsche Bank Trust Co., Etc.

Deutsche Bank Trust Co., Etc.
60 Wall Street
New York, New York 10005

For Huntington National Bank

Huntington National Bank
2361 Morse Road
Columbus, Ohio 43229
For State of Ohio Department of Taxation

Lucas Ward
Ohio Attorney General
Collection Enforcement Section
150 E. Gay Street, 21st Floor
Columbus, Ohio 43215
EILEEN A. GALLAGHER, J.:

        {¶1} Defendants-appellants, Tealla and David Berman, appeal the judgment of the

Cuyahoga County Court of Common Pleas adopting a magistrate’s decision to grant

summary judgment in favor of plaintiff-appellee, Bank of America, N.A.                             For the

following reasons, we affirm.

        {¶2} In December 2003, Tealla Berman executed a note, secured by a mortgage,

in the amount of $544,000.             In April 2012, Bank of America filed a complaint in

foreclosure against Berman, alleging that she was the holder of the mortgage and that the

conditions of the contract had been broken by default in payment. Specifically, Bank of

America alleged that Berman owed $469,861.63, plus interest at the rate of 3.25 percent

per year from December 1, 2010.1 The Bermans answered denying the allegations of the

complaint and asserting counterclaims for alleged violations of the Real Estate Settlement

Procedures Act (“RESPA”), detrimental reliance, negligence and breach of contract.

Bank of America moved for summary judgment and attached an affidavit as well as

supporting documentation.2 The Bermans opposed summary judgment and argued that




         We note that despite the fact that the trial court did not enter judgment against the plaintiffs for
        1


this amount, this is a final appealable order. This court has held that a judgment in a foreclosure is
final and appealable despite the lack of specificity. Bank of N.Y. Mellon v. Adams, 8th Dist.
Cuyahoga No. 99399, 2013-Ohio-5572, ¶ 4. The question of whether a judgment of foreclosure is a
final appealable order is currently under review by the Ohio Supreme Court.

            The signature of Berman’s husband, David Berman, appears on the mortgage but not the
        2


note.
Bank of America acted fraudulently and with deceit in communicating with her.           They

also argued that Bank of America breached the contract.

       {¶3} On August 29, 2013, a foreclosure magistrate issued a decision granting
summary judgment in favor of Bank of America on its complaint as well as the
counterclaims. The Bermans filed objections to the magistrate’s decision on September
11, 2013. The trial court overruled the objections on January 27, 2014, and adopted the
magistrate’s decision on February 3, 2014. The Bermans appeal, asserting the following
sole assignment of error:

       The trial court abused its discretion in adopting the magistrate’s decision on
       January 27th 2014, because genuine issues of material facts remained to be
       litigated; therefore, plaintiff was not entitled to summary judgment.

       {¶4} An appellate court reviews a decision granting a motion for summary

judgment on a de novo basis. Huntington Natl. Bank v. Brown, 8th Dist. Cuyahoga No.

100567, 2014-Ohio-2649, ¶ 12, citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,

105, 671 N.E.2d 241 (1996). Summary judgment is properly granted when (1) there is no

genuine issue as to any material fact; (2) the moving party is 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 party against whom the motion for summary judgment is

made. Id.

       {¶5}    This court in Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga

No. 98502, 2013-Ohio-1657, ¶ 17, held that to prevail on a motion for summary judgment

claim in a foreclosure action the plaintiffs must prove:

       (1) that the plaintiff is the holder of the note and mortgage, or is a party
       entitled to enforce the instrument; (2) if the plaintiff is not the original
       mortgagee, the chain of assignments and transfers; (3) that the mortgagor is
       in default; (4) that all conditions precedent have been met; and (5) the
       amount of principal and interest due.
       {¶6} To establish the above facts, Bank of America offered the affidavit of

Jennefer Bartholomew, an assistant vice president of the bank. Civ.R. 56(E) provides in

pertinent part that:

       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.

       Unless controverted by other evidence, a specific averment that an affidavit
       pertaining to business is made upon personal knowledge of the affiant
       satisfies the Civ.R. 56(E) requirement that affidavits both in support or in
       opposition to motions for summary judgment show that the affiant is
       competent to testify to the matters stated.


       {¶7} Bartholomew’s affidavit and supporting documentation was sufficient to

meet Bank of America’s initial burden under the Civ.R. 56(C) burden. Bartholomew

averred that she had personal knowledge of the bank’s procedures for creating and

maintaining records kept in the course of the bank’s regularly conducted business made at

or near the time of the occurrence by persons with personal knowledge or from

information transmitted by persons with personal knowledge. Bartholomew testified that

she was familiar with the types of records maintained by the bank in connection with a

loan and had personally reviewed the bank’s records and documents that demonstrated the

assignment of the mortgage, showed the payment history on the account and included

notices of default and acceleration.      Bartholomew averred that the bank’s records

demonstrated that Berman was in default, the indebtedness had been accelerated,
Berman’s application for loan modification had been denied and the balance due on the

loan was $469,861.63 plus interest at 3.25 percent. Contrary to Berman’s argument,

Bartholomew’s affidavit and supporting documentation was sufficient to meet Bank of

America’s burden on summary judgment in regards to the foreclosure action. See, e.g.,

Bank of Am., N.A. v. Pate, 8th Dist. Cuyahoga No. 100157, 2014-Ohio-1078, ¶ 16.

      {¶8} The documents included in the affidavit were admissible under the business

records exception. This court in Deutsche Bank Natl. Trust Co., 8th Dist. Cuyahoga No.

98502, 2013-Ohio-1657, ¶ 30, citing Wachovia Bank of Del., N.A. v. Jackson, 5th Dist.

Stark No. 2010-CA-00291, 2011-Ohio-3203, stated that to be admissible a business

record:

      (1) the record must be one regularly recorded in regularly conducted activity;
      (2) it must have been entered by a person with knowledge of the act, event or
      condition; (3) it must have been recorded at or near the time the transaction;
      and (4) a foundation must be laid by the custodian of record or some other
      qualified witness.
      {¶9} Here, Bartholomew’s affidavit satisfied all of the requirements to make the

documentary evidence attached to her affidavit admissible under the business records

exception.

      {¶10} Despite the documentary evidence offered by Bank of America, Berman

argues that genuine issues of material fact exist to preclude summary judgment.    Berman

argues that Bank of America violated RESPA and acted fraudulently or with deceit in

regards to a loan transfer that did not come to fruition. On June 10, 2011, Bank of

America sent Berman a letter notifying her that servicing of her loan was being assigned to

Saxon Mortgage Services effective July 1, 2011. Berman argues that the letter did not
provide the relevant contact information for the new loan servicer required pursuant to 12

U.S.C. 2605(b). This is simply not true. The letter was introduced as documentary

evidence by both parties and included all of the pertinent contact information for the new

loan servicer.   Furthermore, the letter was sent to the defendants 20 days before the loan

was set to be transferred. On June 30, 2011, Bank of America notified Berman that the

loan would not be transferred to Saxon. Nothing in the record indicates that Bank of

America violated 12 U.S.C. 2605(b), or acted fraudulently in providing notice.         We

agree with the trial court’s conclusion that summary judgment in favor of Bank of America

was appropriate on the foreclosure claim.

       {¶11} The Bermans next argue that genuine issues of material fact exist that

precluded summary judgment on their counterclaims.      We disagree.

       {¶12} The first counterclaim alleges a violation of RESPA stemming from the

above referenced Saxon transaction that never came to fruition.           For the reasons

previously addressed, we find no outstanding issues of fact on this issue or merit to the

claim and, therefore, summary judgment was appropriate.

       {¶13} The second counterclaim asserts that the Bermans detrimentally relied upon

representations by Bank of America that it was possible to modify the note and mortgage

so that they might make payments and maintain their residence and that the bank failed to

conduct a loan modification review.    Assuming arguendo that this was a proper cause of

action, the essence of the claim is refuted by the documentary evidence cited above

pertaining to Tealla Berman’s denied application for a loan modification.     Furthermore,
the facts stated in Berman’s affidavit submitted in opposition to summary judgment do not

refute the documentary evidence offered by the bank or demonstrate any reliance on a

statement made by the bank. Finally, we note that the Bermans failed to oppose summary

judgment on this claim before the trial court and offer no arguments pertaining to it on

appeal.

      {¶14} The third counterclaim asserts that Bank of America owed the Bermans a

duty to ensure that records regarding the account were accurate and current and that the

bank acted negligently in communicating with the Bermans regarding the aborted transfer

of the loan servicing to Saxon. In stark contrast to these allegations, Bank of America

submitted a detailed accounting of payments made on the account and a letter informing

the Bermans that the Saxon transfer would not occur. Furthermore, as noted by Bank of

America, the Bermans’ negligence claims stem from alleged breaches of contractual duties

rather than any independent duty.     This court explained in Corsaro v. ARC Westlake

Village, Inc., 8th Dist. Cuyahoga No. 84858, 2005-Ohio-1982, ¶ 27:

      [I]t is well established that a breach of contract alone will not give rise to an
      action in tort, regardless of the tortfeasor’s motive. It has long been the
      general rule that, when the only relation between the parties is contractual,
      the liability of one to the other in a tort action must arise from some positive
      duty which the law imposes because of the relationship, or because of the
      negligent manner in which some act which the contract provides for is done;
      and the mere omission to perform a contract obligation is never a tort unless
      the omission is also the omission to perform a legal duty. Thus, a negligence
      claim cannot be maintained unless the defendant’s conduct constituted the
      breach of a duty imposed by law, apart from it being a breach of an
      obligation created by agreement of the parties, either express or implied.

      {¶15} Here, the Bermans have offered no explanation of the alleged duty owed to
them by Bank of America independent of the contract and summary judgment was

appropriate on their negligence claim.

       {¶16} The Bermans’ fourth counterclaim alleges that Bank of America breached a

contractual duty owed under the note and mortgage by allowing charges, fees and interest

to accrue on the account during a period in which the Bermans allegedly believed the

account had been transferred to Saxon.     As an initial matter, we note that the Bermans

offer no argument as to how the transfer to Saxon would have paused the accrual of such

charges, fees and interest on an account that the record reflects they had been in

delinquency on for roughly a year at the time of the aborted transfer.      Furthermore, as

previously noted, Bank of America sent Berman a letter informing her the Saxon transfer

would not proceed on June 30, 2011. Although Tealla Berman asserted in her affidavit that

she was informed by Saxon that the mortgage was not transferred she claimed that she

received only the bank’s notice of transfer and not their subsequent notice that the transfer

would not occur. This court has previously held that,

       [g]enerally, a party’s unsupported and self-serving assertions, offered by way
       of affidavit, standing alone and without corroborating materials under Civ.R.
       56, will not be sufficient to demonstrate material issues of fact. Otherwise, a
       party could avoid summary judgment under all circumstances solely by
       simply submitting such a self-serving affidavit containing nothing more than
       bare contradictions of the evidence offered by the moving party.

(Citations omitted.) Davis v. Cleveland, 8th Dist. Cuyahoga No. 83665, 2004-Ohio-6621,

¶ 23, quoting Bell v. Beightler, 10th Dist. Franklin No. 02AP-569, 2003-Ohio-88, ¶ 33.

       {¶17} Finally, as addressed above, there is no dispute that the Bermans had been in

default on the mortgage for a significant period of time when the alleged
miscommunication regarding the Saxon transfer occurred.      Individuals cannot maintain a

breach of contract action when they themselves failed to substantially perform under the

contract terms. Mtge. Elec. Registration Sys. v. Mosley, 8th Dist. Cuyahoga No. 93170,

2010-Ohio-2886, ¶ 47. Generally, a breach of contract occurs when the nonbreaching party

performed its contractual obligations, the other party failed to fulfill its contractual

obligations without legal excuse and the nonbreaching party suffered damages as a result

of the breach.   Id., citing Wauseon Plaza Ltd. Partnership v. Wauseon Hardware Co.,

156 Ohio App.3d 575, 2004-Ohio-1661, 807 N.E.2d 953 (6th Dist.). We agree with the

trial court that summary judgment was appropriate in this instance.

      {¶18} The Bermans’ assignment of error is overruled.

      {¶19} The judgment of the trial court is affirmed.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said 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.




EILEEN A. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
Keywords:

Motion for summary judgment; foreclosure; mortgage; RESPA; negligence; breach of

contract; de novo; magistrate’s decision.



Trial court properly granted summary judgment in favor of bank in foreclosure where

defendant failed to demonstrate a RESPA violation or any deficiency in the bank’s

documentation supporting summary judgment. Trial court also properly granted summary

judgment on defendant’s counterclaims which failed as a matter of law.
