[Cite as PNC Bank, N.A. v. Price, 2016-Ohio-2887.]


                                       COURT OF APPEALS
                                     MORGAN COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                             JUDGES:
PNC BANK, N.A., SUCCESSOR BY                         :       Hon. W. Scott Gwin, P.J.
MERGER WITH NATIONAL CITY                            :       Hon. William B. Hoffman, J.
BANK                                                 :       Hon. Craig R. Baldwin, J.
                                                     :
                         Plaintiff-Appellee          :
                                                     :       Case No. 15AP0015
-vs-                                                 :
                                                     :
MARK J. PRICE, JR. AKA MARK J.                       :       OPINION
PRICE, ET AL

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                                 Civil appeal from the Morgan County Court
                                                         of Common Pleas, Case No. 13CV0025

JUDGMENT:                                                Affirmed



DATE OF JUDGMENT ENTRY:                                  May 4, 2016



APPEARANCES:

For Plaintiff-Appellee                                   For Defendant-Appellant

ROBERT HOGAN                                             BRUCE BROYLES
STEPHANIE F. GILLEY                                      5815 Market Street, Ste. 2
700 Walnut Street, Ste. 302                              Boardman, OH 44512
Cincinnati, OH 45202
[Cite as PNC Bank, N.A. v. Price, 2016-Ohio-2887.]


Gwin, P.J.

        {¶1}    Appellant appeals the October 15, 2015 judgment entry of the Morgan

County Court of Common Pleas granting appellee’s motion for summary judgment and

the November 12, 2015 judgment entry granting a decree of foreclosure.

                                         Facts & Procedural History

        {¶2}    On March 29, 2002, appellant Mark H. Price, Jr. and Alberta Price opened

an Equity Reserve Line of Credit with National City Bank. The initial amount of the Line

of Credit was $50,000. The relevant terms of the Line of Credit Agreement stated as

follows:

        Line of Credit. Your Line is an open-end line of credit which you may use

        to obtain cash advances (Advances) from time to time for a period of 10

        years (Term). Your line will mature on the last day of the billing cycle ending

        in March 2012 (Maturity Date). If you continue to meet Bank’s then current

        standards for credit criteria and collateral value, at Bank’s discretion, Bank

        will either extend the Maturity Date for one or more additional Terms or Bank

        will refinance your Line on the terms then being offered by Bank for Equity

        Reserve Lines of Credit.

        ***

        The Line Minimum Payment will not fully repay the principal that is

        outstanding on your Line by the Maturity Date. If you use an FRP after the

        first five years of your Agreement, then the FRP payment will not fully

        amortize your FRP by the Maturity Date. Bank will refinance the remaining

        unpaid balance of your Line and/or FRP on terms then offered by Bank,
Morgan County, Case No. 15AP0015                                                         3


      provided you continue to meet Bank’s then current standards for credit

      criteria and collateral value. Otherwise, you will be required to pay the entire

      balance in a single payment. After the Maturity Date and prior to refinancing

      or payment of the entire outstanding balance, you will continue to be bound

      by this Agreement in that you will be liable for all finance charges and other

      amounts and you will be required to continue making monthly payments.

      Bank does not waive its right to receive payments in full by accepting partial

      payments after the Maturity Date.

      ***

      Termination of the Line. Bank can terminate your Line and require you to

      pay the entire outstanding balance in one payment if:

      You engage in fraud or material misrepresentation with your Line.

      You do not meet the repayment terms of this Agreement.

      Your action or inaction adversely affects the collateral or Bank’s rights in the

      collateral.

      {¶3}   Appellant secured the Equity Reserve Line of Credit by executing a

mortgage with National City Bank on the real property located at 9850 North Greer Road

N.W., in McConnelsville, Ohio. The mortgage was recorded on April 11, 2002.

      {¶4}   Effective December 31, 2008, National City Corporation merged with and

into The PNC Financial Services, Group, Inc. On November 6, 2009, National City Bank

was merged with and into Plaintiff-appellee, PNC Bank, National Association.

      {¶5}   On February 11, 2013, appellee filed a complaint for foreclosure against

appellant in the Morgan County Court of Common Pleas. Appellee stated it was the
Morgan County, Case No. 15AP0015                                                         4


holder of the Equity Line of Credit Agreement and mortgage executed by appellant.

Copies of the Equity Line of Credit Agreement and mortgage were attached to the

complaint as exhibits. Appellee alleged that by reason of default in terms of the Equity

Reserve Line of Credit Agreement and the mortgage securing the same, appellant owed

the principal sum of $49,783.53 plus interest at the rate of 3.25% per annum from April

30, 2012 to December 6, 2012.

       {¶6}   After appellee filed a motion for default, the trial court granted a judgment

entry and decree of foreclosure on September 17, 2013.           On December 16, 2013,

appellant filed a motion to vacate default judgment and motion for leave to file answer to

complaint instanter. The trial court granted appellant’s motions on December 19, 2013.

Appellant thus filed his answer on December 19, 2013. In his answer, appellant raised

as an affirmative defense that appellee lacked standing. Appellant further alleged as an

affirmative defense that appellee breached the terms of the credit line agreement because

appellee did not extend the maturity date or refinance the credit line.

       {¶7}   After the parties were unable to agree on a loan modification agreement,

appellee moved for summary judgment on December 1, 2014. In support of its motion

for summary judgment, appellee attached the affidavit of Marika Dienes (“Dienes”), loan

support analyst with PNC Bank. She averred that in the regular performance of her job

functions, she was familiar with the business records maintained by PNC Bank. The

affidavit stated PNC Bank was the holder of the Line of Credit Agreement, appellant failed

to make the payment due for April 30, 2012, and did not satisfy the payments that came

due thereafter.
Morgan County, Case No. 15AP0015                                                            5


       {¶8}   Appellant filed a response to the motion for summary judgment and a

motion to strike the affidavit of Dienes.        Appellant argued Dienes’ affidavit was

inadmissible hearsay and Dienes lacked knowledge or capacity to testify and authenticate

the records. Finally, appellant argued there was a novation of the original debt. Attached

to his opposition and motion to strike was appellant’s affidavit in which he stated he began

working with PNC in April of 2012 to work out a new loan agreement. Appellant averred

he and appellee were negotiating an extension of the line of credit and Issac Wilcox told

him for a term of thirty (30) years, the payment amount would be $100.05 per month at

1% interest for the first five (5) years of the agreement, and the remainder of the loan

payment fixed at 5.25% interest with a monthly payment of $280.50.

       {¶9}   Appellee filed a reply to appellant’s opposition on December 11, 2014. On

March 19, 2015, appellant filed an additional affidavit, stating he recorded his phone

conversations with the employees of PNC. Attached to his affidavit were transcripts of

these conversations. Appellee filed a motion to strike appellant’s affidavit on April 2, 2015,

and argued the trial court should strike appellant’s March 2015 affidavit because appellant

did not request leave to supplement his response to summary judgment and because the

conversations were not relevant to the issues at hand in the instant case.

       {¶10} On July 28, 2015, the trial court granted appellee’s motion to strike the

March 2015 affidavit of appellant as being out of rule. The trial court granted appellee’s

motion for summary judgment on October 15, 2015. On November 12, 2015, the trial

court entered a judgment entry and decree of foreclosure.

       {¶11} Appellant appeals the judgment entries of the Morgan County Court of

Common Pleas and assigns the following as error:
Morgan County, Case No. 15AP0015                                                          6


     {¶12} “I. THE TRIAL COURT ERRED IN REFUSING TO STRIKE THE

AFFIDAVIT OF MARIKA DIENES AND RELYING UPON HER AFFIDAVIT IN

DETERMINING THE MOTION FOR SUMMARY JUDGMENT.

     {¶13} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO APPELLEE WHEN APPELLEE FAILED TO ESTABLISH THAT IT WAS ENTITLED

TO JUDGMENT AS A MATTER OF LAW.

     {¶14} “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO APPELLEE WHEN THERE REMAINED A GENUINE ISSUE OF MATERIAL FACT

IN DISPUTE ON THE ISSUE OF WHETHER A NOVATION OF THE OBLIGATION HAD

OCCURRED.”

                                 Summary Judgment Standard

                                      Summary Judgment

     {¶15} Civ. R. 56 states 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 of 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 is made, that party being
Morgan County, Case No. 15AP0015                                                             7


       entitled to have the evidence or stipulation construed mostly strongly in the

       party’s favor. A summary judgment, interlocutory in character, may be

       rendered on the issue of liability alone although there is a genuine issue as

       to the amount of damages.

       {¶16} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d

271 (1984). A fact is material if it affects the outcome of the case under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d

1186 (6th Dist. 1999).

       {¶17} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.

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

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrate the absence of a genuine issue of fact on a material element of the

non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

Once the moving party meets its initial burden, the burden shifts to the non-moving party

to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.
Morgan County, Case No. 15AP0015                                                            8


The non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary materials showing a genuine dispute over material

facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).

                                                 I.

      {¶19} Appellant first argues the trial court erred in relying on the affidavit of Dienes

because the affidavit was not based on personal knowledge and was thus inadmissible

hearsay.

      {¶20} Evidence Rule 803(6) provides that records of regularly conducted business

activity are admissible, as an exception to the rules of hearsay, if shown to be such “by

the testimony of the custodian or other qualified witness.” The question of who may lay

a foundation for the admissibility of business records as a custodian or other qualified

witness must be answered broadly.        U.S. Bank Trustee, N.A. v. Herman, 5th Dist.

Delaware No. 14 CAE 04 0023, 2015-Ohio-586. It is not a requirement the witness have

firsthand knowledge of the transaction giving rise to the business record. Id. “Rather, it

must be demonstrated that: the witness is sufficiently familiar with the operation of the

business and with the circumstances of the record’s preparation, maintenance and

retrieval; he can reasonably testify on the basis of this knowledge the record is what it

purports to be; and it was made in the ordinary course of business consistent with the

elements of Rule 803(6).”      Id.; PNC Bank, N.A. v. Bradford, 5th Dist. Stark No.

2014CA00029, 2015-Ohio-4092.

      {¶21} Civil Rule 56(E) states an affidavit must “be made on personal knowledge

[and] set forth such facts as would be admissible in evidence.” Civil Rule 56(E). Ohio

law recognizes personal knowledge may be inferred from the contents of an affidavit.
Morgan County, Case No. 15AP0015                                                        9

Wells Fargo Bank, N.A. v. Dawson, 5th Dist. Stark No. 2013CA00095, 2014-Ohio-269.

The assertion of personal knowledge in an affidavit satisfies Rule 56(E) if the nature of

the facts in the affidavit combined with the identity of the affiant creates a reasonable

inference the affiant has personal knowledge of the facts in the affidavit. Id. In her

affidavit, Dienes stated as follows:

              I am the Loan Support Analyst of PNC Bank, N.A., successor by

       merger with National City Bank, and in this position I have reviewed certain

       business files, documents and other business records of PNC Bank, N.A.

       successor by merger with National City Bank’s account for Mark H. Price,

       Jr. and Alberta Price. I am over the age of 18 and I make this affidavit based

       upon my personal knowledge obtained from my personal review of such

       business records, and I am competent to testify to its content.

              In the regular performance of my job functions, I am familiar with

       business records maintained by PNC Bank, N.A. successor by merger with

       National City Bank for the purpose of servicing mortgage loans. Based on

       my knowledge of PNC Bank, N.A. successor by merger with National City

       Bank’s business practices, the entries in these records (which include data

       compilations, electronic image documents, and others) are made at the time

       of the events and conditions they describe, either by people with firsthand

       knowledge of those events and conditions or form information provided by

       people with such firsthand knowledge. It is PNC Bank, N.A. successor by

       merger with National City Bank’s business practice to electronically store
Morgan County, Case No. 15AP0015                                                        10


      duplicates of the originals of all notes or other debt instruments,

      endorsements, allonges, mortgages, and assignments thereof.

      {¶22} Dienes’ affidavit goes on to state the details of the Equity Reserve Line of

Credit Agreement and the mortgage executed by Price on March 29, 2002. Dienes avers

appellant failed to make the payment due for April 30, 2012 and did not satisfy the

payments that came thereafter. Further, Dienes stated as of November 24, 2014, there

was due and owing the amount of $49,783.53.

      {¶23} From her position as the loan support analyst and her statement that she

examined the records in this case, it may be reasonably inferred Dienes had personal

knowledge to qualify the documents as an exception to the hearsay rule as business

documents.

      {¶24} Appellant contends Dienes does not describe her job duties or how she

obtained personal knowledge and thus she does not demonstrate personal knowledge.

We disagree. The affiant in this case is clearly identified as a Loan Support Analyst of

PNC Bank.      She specifically attests to her job duties and states, “in the regular

performance of my job functions, I am familiar with business records maintained by PNC

bank, N.A. successor by merger with National City Bank for the purpose of servicing

mortgage loans.” She provides that, based upon this knowledge of PNC Bank’s business

practices, the entries in the record are made at the time of the events and conditions they

describe.

      {¶25} Though appellant contends this case is analogous to Deutsche Bank Nat’l

Trust Co. v. Dvorak, 9th Dist. Summit No. 27120, 2014-Ohio-4652, we find the instant

case is factually and legally distinguishable from Dvorak. Further, this Court has held
Morgan County, Case No. 15AP0015                                                           11


similar affidavits by PNC Bank were sufficiently based on personal knowledge and

affirmed lower courts’ granting of summary judgment. PNC Bank, N.A. v. Olivieri, 5th

Dist. Delaware No. 15 CAE 08 0061, 2016-Ohio-1078; PNC Bank, N.A. v. Bradford, 5th

Dist. Stark No. 2014CA00029, 2015-Ohio-4092.

       {¶26} Finally, appellant contends the affidavit was insufficient and not based upon

personal knowledge because the affiant authenticated copies of the electronically stored

duplicates of the original note and mortgage.

       {¶27} Evidence Rule 901 governs authentication or identification of evidence. It

states, “the requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter in

question is what its proponent claims.” Evidence Rule 901(A). Evidence Rule 901(B)(1)

provides the testimony of a witness with knowledge, who testifies that a matter is what it

is claimed to be, conforms with the requirements of Evidence Rule 901. Thus, “any

competent witness who has knowledge that a matter is what its proponent claims may

testify to such pertinent facts, thereby establishing, in whole or in part, the foundation for

identification.” Id.

       {¶28} Thus, verification of documents attached to an affidavit supporting or

opposing a motion for summary judgment is generally satisfied by an appropriate

averment in the affidavit itself, for example, that “such copies are true copies and

reproductions.” State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 423 N.E.2d 105

(1981). In the present case, Dienes averred the note and mortgage attached to the

affidavit were true and accurate copies of the electronically stored duplicates of the

originals. Evidence Rule 1003 governs the admissibility of duplicates and provides a
Morgan County, Case No. 15AP0015                                                            12


duplicate, “is admissible to the same extent as an original unless: (1) a genuine question

is raised as to the authenticity of the original or (2) in the circumstances it would be unfair

to admit the duplicate in lieu of the original.” The party seeking to exclude a duplicate

cannot rely on mere speculation as to its authenticity. Evidence Rule 1003. Furthermore,

“the decision to admit duplicates, in lieu of originals, is one that is left to the sound

discretion of the trial court.” Fannie May v. Bilyk, 10th Dist. Franklin No. 15AP-11, 2015-

Ohio-554.

       {¶29} Here, appellant does not raise any issues about the actual authenticity of

the business records and does not contend it would be unfair under the circumstances to

accept the duplicate in lieu of the original. Appellant’s argument relates to whether Dienes

was qualified to authenticate the documents because she lacked firsthand knowledge

regarding their creation and whether the facts Dienes swore to in her affidavit regarding

the authenticity of the note and mortgage constituted hearsay. Appellant fails to set forth

any bona fide argument that the note and mortgage documents are not what they purport

to be and has not met his burden to demonstrate a genuine question as to the authenticity

of the duplicate copy of the note and mortgage introduced for the purposes of summary

judgment. Fannie May v. Bilyk, 10th Dist. Franklin No. 15AP-11, 2015-Ohio-554; U.S.

Bank v. Lavette, 8th Dist. Cuyahoga No. 101348, 2015-Ohio-765.

       {¶30} Upon review, we find the trial court did not err in relying upon Dienes’

affidavit in support of its motion for summary judgment. Appellant’s first assignment of

error is overruled.
Morgan County, Case No. 15AP0015                                                          13


                                                 II.

       {¶31} In his second assignment of error, appellant contends the trial court erred

in granting summary judgment because appellee failed to establish it was entitled to

judgment as a matter of law.

       {¶32} To properly support a motion for summary judgment in a foreclosure action,

a plaintiff must show:

       (1) The movant is the holder of the note and mortgage, or is a party entitled

       to enforce the instrument;

       (2) If the movant is not the original mortgagee, the chain of assignments

       and transfers;

       (3) All conditions precedent have been met;

       (4) The mortgage is in default; and

       (5) The amount of principal and interest due.

Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. Stark No. 2010-CA-00291, 2011-

Ohio-3202.

       {¶33} To have standing to pursue a foreclosure action, a plaintiff “must establish

an interest in the note or mortgage at the time it filed suit.” Home Loan Mtge. Corp. v.

Schwartzwald, 134 Ohio St.3d, 2012-Ohio-5017, 979 N.E.2d 1214. The current holder of

the note and mortgage is the real party in interest in a foreclosure action. U.S. Bank Nat’l.

Assn v. Marcino, 181 Ohio App.3d 328, 2009-Ohio-1178, 908 N.E.2d 1032 (7th Dist.),

citing Chase Manhattan Corp. v. Smith, 1st Dist. Hamilton No. C061069, 2007-Ohio-5874.

       {¶34} In this case, appellee presented Civil Rule 56(C) evidence to properly

support a motion for summary judgment in a foreclosure action. The affidavit of Dienes
Morgan County, Case No. 15AP0015                                                           14


provides the amount of principal and interest due and states appellant has failed to make

the payment due for April 30, 2012 and has not satisfied the payments that have come

due thereafter. Further, that PNC has elected to call the entire balance of said account

due and payable, in accordance with the terms of the Note and Mortgage. Dienes’

affidavit establishes appellee is the holder of and has the right to enforce the Note.

       {¶35} The affidavit submitted by PNC demonstrated National City Bank merged

with PNC Bank in 2009. “When two banks merge, the absorbed bank becomes a part of

the resulting bank, and the merged bank has the ability to enforce agreements as if the

resulting bank had stepped into the shoes of the absorbed one.” Bank of Am., N.A. v.

Laster, 8th Dist. Cuyahoga No. 100606, 2014-Ohio-2536, citing Acordia of Ohio, L.L.C.

v. Fishel, 133 Ohio St.3d 356, 2012-Ohio-4648, 978 N.E.2d 823. Once an existing bank

takes the place of another bank after a merger, no further action is necessary to become

a real party in interest in regard to its property. Huntington Nat’l Bank v. Hoffer, 2nd Dist.

Greene No. 2010-CA-31, 2011-Ohio-242. Further, Dienes’ affidavit stated, “PNC Bank,

N.A. is the holder of, and has the right to enforce, the Note * * *.” Accordingly, reasonable

minds can only conclude PNC Bank is the real party in interest with standing to bring the

foreclosure suit against appellant.

       {¶36} Appellant maintains the trial court erred in entering a decree of foreclosure

when the bank failed to provide and attach to Dienes’ affidavit business records which

support a history of payment delinquency and default.

       {¶37} However, this Court has held there is no requirement that a party seeking

foreclosure submit a payment history to demonstrate entitlement to summary judgment.

Fifth Third Mtge. v. Fantine, 5th Dist. Fairfield No. 15-CA-5, 2015-Ohio-4260. Rather, an
Morgan County, Case No. 15AP0015                                                        15


averment of outstanding indebtedness in the affidavit of a bank loan officer with personal

knowledge of the debtor’s account is sufficient to establish the amount due and owing on

the note, unless the debtor refutes the averred indebtedness with evidence that a different

amount is owed. Id. Dienes’ affidavit provided the amount due and payable on the

account was $49,783.53 plus interest at the rate of 3.25% as of April 31, 2012 and 0% as

of November 24, 2014. Further, Dienes averred appellant failed to make the payment

due for April 30, 2012 and those due thereafter. Appellant did not provide evidence which

would controvert Dienes’ averments regarding the $49,783.53 balance amount.

      {¶38} PNC, via the Dienes affidavit, provided evidence to satisfy the Jackson

criteria. Thus, PNC set forth sufficient evidence to support its motion for summary

judgment. Because appellant failed to meet his reciprocal burden of submitting evidence

which would create a genuine issue of material fact for trial, we conclude the trial court

did not err in granting summary judgment and entering the decree of foreclosure. See

Fifth Third Mtge. Co. v. Fantine, 5th Dist. Fairfield No. 15-CA-5, 2015-Ohio-4260; PNC

Bank, N.A. v. Bradford, 5th Dist. Stark No. 2014CA00029, 2015-Ohio-4092.

      {¶39} Appellant’s second assignment of error is overruled.

                                               III.

      {¶40} In his final assignment of error, appellant argues the trial court erred in

granting appellee’s motion for summary judgment because there is a material fact in

dispute on the issue of novation. Appellant contends he submitted evidence, in the form

of his affidavit, that PNC Bank offered a new line of credit agreement and he accepted

the agreement by sending payment to PNC Bank.
Morgan County, Case No. 15AP0015                                                           16

        {¶41} Novation is an affirmative defense. Sheet Metal Workers Nat’l Pension

Fund v. Bryden House Ltd. Partnership, 130 Ohio App.3d 132, 719 N.E.2d 646 (10th Dist.

1998); Hollish v. Maners, 5th Dist. Knox No. 2011CA000005, 2011-Ohio-4823.                  A

novation “is created where a previous valid obligation is extinguished by a new valid

contract, accomplished by substitution of parties or of the undertaking, with the consent

of all the parties, and based on valid consideration.´ Swayne v. Beeble Investments, Inc.,

176 Ohio App.3d 293, 2008-Ohio-1839, 891 N.E.2d 1216 (10th Dist.). The Ohio Supreme

Court in Jim’s Steakhouse, Inc. v. Cleveland, 81 Ohio St.3d 18, 688 N.E.2d 506 (1998),

provides for waiver of an affirmative defense if it is not raised in a pleading or an amended

pleadings. See also Civ.R. 8.

        {¶42} In this case, appellant did not assert novation in his answer or through an

amended pleading. Appellant first argued a novation existed in his response to appellee’s

motion to summary judgment.          Because appellant did not assert novation as an

affirmative defense in the pleadings, we find appellant has waived this issue pursuant to

Civil Rule 8(C). See Hollish v. Maners, 5th Dist. Knox No. 2011CA000005, 2011-Ohio-

4823.

        {¶43} Further, even if appellant did not waive this issue, we find the trial court did

not err in granting summary judgment to appellee on the novation issue. In order to effect

a valid novation, all parties to the original contract must clearly and definitely intend the

second agreement to be a novation and intend to completely disregard the original

contract obligation. Boulden v. Boulden, 5th Dist. Richland No. 01-CA-21, 2001-Ohio-

1430. To be enforceable, a novation requires consideration and a novation can never be

presumed. Id. “Intent, knowledge and consent are the essential elements in determining
Morgan County, Case No. 15AP0015                                                       17

whether a purported novation has been accepted.” Id. A party’s knowledge of and

consent to the terms of a novation need not be express, but may be implied from

circumstances or conduct. Id. There must be a common understanding between the

parties to the arrangement, and a clear and definite expression of both knowledge and

consent. Id.

      {¶44} In this case, appellant failed to present any evidence that all parties to the

line of credit agreement and mortgage, including appellee and Alberta Price, consented

to any change in terms or new obligations. While appellant stated in his affidavit that he

and PNC Bank were negotiating an extension of the line of credit, appellant failed to

submit any evidence demonstrating a clear and definite expression of consent by PNC

Bank and/or Alberta Price to a new agreement. Further, as in Boulden v. Boulden,

appellant offered no evidence of any consideration. Accordingly, even if appellant did not

waive the defense of novation, appellant has failed to provide evidence to create a

genuine issue of material fact with regards to novation.

      {¶45} Appellant’s third assignment of error is overruled.
Morgan County, Case No. 15AP0015                                                  18


      {¶46} Based on the foregoing, we overrule appellant’s assignments of error. The

judgment entries of the Morgan County Court of Common Pleas are affirmed.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur
