[Cite as Provident Funding Assocs. v. Ettayem, 2016-Ohio-226.]




                                          COURT OF APPEALS
                                      DELAWARE COUNTY, OHIO
                                      FIFTH APPELLATE DISTRICT


 PROVIDENT FUNDING ASSOCIATES, :                                 JUDGES:
                               :                                 Hon. John W. Wise, P.J.
      Plaintiff - Appellee     :                                 Hon. Patricia A. Delaney, J.
                               :                                 Hon. Craig R. Baldwin, J.
 -vs-                          :
                                                       :
 ASHRAF A. ETTAYEM                                 :             Case No. 15 CAE 08 0066
                                                       :
          Defendant - Appellant                    :             OPINION



 CHARACTER OF PROCEEDING:                                        Appeal from the Delaware County
                                                                 Court of Common Pleas, Case No.
                                                                 14 CV E 06 0468



 JUDGMENT:                                                       Affirmed



 DATE OF JUDGMENT:                                               January 21, 2016




 APPEARANCES:

 For Plaintiff-Appellee                                          For Defendant-Appellant

 PHILLIP BARRAGATE                                               ASHRAF A. ETTAYEM, pro se
 ASHLYN HEIDER                                                   1195 Breakers Court
 Shapiro, Van Ess, Phillips                                      Westerville, Ohio 43082
 & Barragate LLP
 4805 Montgomery Road, Suite 320
 Norwood, Ohio 45212
Delaware County, Case No. 15 CAE 08 0066                                             2



Baldwin, J.

        {¶1}   Appellant Ashraf A. Ettayem appeals a judgment of foreclosure of the

Delaware County Common Pleas Court. Appellee is Provident Funding Associates.

                             STATEMENT OF FACTS AND CASE

        {¶2}   Appellant executed a promissory note with PFG Loans, Inc., a DBA of

Provident Funding Group, Inc., on August 9, 2006 in the amount of $340,000.        The

promissory note includes two allonges: the first containing a special indorsement from

the original lender to appellee, and the second containing a blank indorsement. Both

are signed by C. Nillo as Assistant Vice President.

        {¶3}   Appellant also executed a mortgage to Mortgage Electronic Registration

Systems, Inc., acting as a nominee for PFG Loans. The mortgage was recorded on

August 17, 2006, and transferred by an assignment to appellee recorded on September

17, 2012.

        {¶4}   Appellant executed a loan modification agreement effective November 15,

2013.    Appellant failed to make the first payment under the loan modification and

defaulted on December 1, 2013. Appellee accelerated the note, and filed the instant

action for foreclosure on June 23, 2014 against appellant; Natasha A. Ettyam; Eastman

Savings and Loan Association; PNC Bank, N.A.; Wesbanco Bank, Inc.; Huntington

National Bank; the Medallion Estates Homeowners Association, Inc.; the Ohio

Department of Taxation; and the Delaware County Treasurer.

        {¶5}   Appellee filed a motion for summary judgment, attaching the affidavit of

Sae Bin Park. Appellant filed a response, but did not attach any evidentiary materials.

Appellee filed a reply, attaching the affidavit of Jonathan Mildbrand. The trial court
Delaware County, Case No. 15 CAE 08 0066                                            3



found no issues of material fact, and concluded that appellee was entitled to judgment

as a matter of law. After granting the motion for summary judgment, the court issued a

final judgment of foreclosure.

       {¶6}   Appellant assigns a single error:

       {¶7}   “THE TRIAL COURT ERRED IN GRANTING PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT AND DECREE FOR FORECLOSURE.”

       {¶8}   Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must

refer to Civ. R. 56(C) which provides in pertinent part:

                     Summary Judgment shall be rendered forthwith if the

              pleadings, depositions, answers to interrogatories, written

              admissions, affidavits, transcripts of evidence, and written

              stipulations of fact, if any, timely filed in the action, 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. No

              evidence or stipulation may be considered except as stated

              in this rule. A summary judgment shall not be rendered

              unless it appears from the evidence or stipulation, and only

              from the evidence or stipulation, that reasonable minds can

              come to but one conclusion and that conclusion is adverse

              to the party against whom the motion for summary judgment
Delaware County, Case No. 15 CAE 08 0066                                                4




             is made, that party being entitled to have the evidence or

             stipulation construed most strongly in the party’s favor.

      {¶9}   Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed.     The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for its motion

and identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact. The moving party may not make a conclusory assertion that the

non-moving party has no evidence to prove its case. The moving party must specifically

point to some evidence which demonstrates that the moving party cannot support its

claim. If the moving party satisfies this requirement, the burden shifts to the non-moving

party to set forth specific facts demonstrating that there is a genuine issue of material

fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v.

Burt, 75 Ohio St.3d 280, 1996-Ohio-107.

      {¶10} Appellant argues that appellee failed to prove it was the holder of the note.

He argues that the affidavit of Sae Bin Park was made without personal knowledge and

failed to authenticate the note and mortgage.

      {¶11} Affidavits filed in foreclosure cases must demonstrate that the affiant is

competent to testify; that the affiant has personal knowledge of the facts, as shown by a

statement of the operant facts sufficient for the court to infer the affiant has personal

knowledge; and that the affiant was able to compare the copy with the original and

verify the copy is accurate, or explain why this cannot be done.         Wachovia Bank of

Delaware, N.A. v. Jakcson, 5th Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203, ¶46-
Delaware County, Case No. 15 CAE 08 0066                                                     5




49. The affidavit must be notarized, and any documents the affidavit refers to must be

attached to the affidavit or served with the affidavit. Id. at ¶50-51.

       {¶12} The affidavit of Sae Bin Park states that she is an assistant vice president

for appellee, and her duties include the review of loan records. She avers that the note

and mortgage deed filed in the case are true and accurate copies of the original

instruments held by appellee. The trial court correctly found that her statement that she

compared the copies of the note and mortgage that were incorporated as exhibits to the

affidavit with the originals in order to verify their accuracy was sufficient to demonstrate

personal knowledge and to authenticate the note and mortgage.

       {¶13} Appellant also argues that the allonges to the note are improper, as they

were not dated to show when and how each entity acquired the note, and the signer of

both allonges acted in the capacity of assistant vice president to two different entities.

       {¶14} The first allonge to the note is payable to the order of Provident Funding

Associates, L.P., a California Limited Partnership, by PFG Loans, Inc., a DBA of

Provident Funding Group, Inc. The second allonge to the note is a blank indorsement

by Provident Funding Associates, L.P., a California Limited Partnership. Both allonges

are signed by C. Nillo as Assistant Vice President.

       {¶15} As noted by the trial court, appellee presented evidence to establish that it

was in possession of the note at the time the instant action was filed, and the second

allonge included a blank indorsement. “An entity which possesses a note indorsed in

blank is a holder entitled to enforce the note.” Bank of Am., N.A. v. Pasqualone, 10th

Dist. Franklin No. 13AP-87, 2013-Ohio-5795, ¶35, fn. 14. Further, R.C. 1303.24, which

sets forth the requirements for a valid indorsement, does not require the date to be
Delaware County, Case No. 15 CAE 08 0066                                                 6




included. The trial court did not err in finding the allonges to be valid, and appellee to

be the holder of the note and mortgage at the time the complaint was filed, with

standing to file the complaint in foreclosure.

       {¶16} Appellant argues that the affidavit of Jonathan Mildbrand failed to

authenticate any document and creates a genuine issue of material fact.

       {¶17} In response to appellee’s motion for summary judgment, appellant filed a

brief which raised issues concerning the loan modification and notice of default.

Appellee then provided the supplemental affidavit of Mildbrand which provided further

details to Park’s affidavit concerning the loan modification, the default of the loan, the

acceleration of the loan, and the notice of default. The affidavit does not contradict

Park’s affidavit, nor did it create genuine issues of material fact.

       {¶18} Finally appellant argues that the signatures on the loan modification

agreement are dated after the alleged default.             Although the loan modification

agreement was not signed until January 29, 2014 and February 3, 2014, the agreement

expressly provides that it is effective on November 15, 2013, and requires monthly

payments to begin on December 1, 2013.              Mildbrand’s affidavit confirms that the

effective date of the modification was November 15, 2013.

       {¶19} The court did not err in granting summary judgment to appellee.           The

assignment of error is overruled. The judgment of the Delaware County Common Pleas

Court is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Wise, J. and

Delaney, J. concur.
