[Cite as JPMorgan Chase Bank, N.A. v. Snedeker, 2014-Ohio-1593.]


                                      COURT OF APPEALS
                                    LICKING COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




JPMORGAN CHASE BANK, N.A.                       :           JUDGES:
                                                :           Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      :           Hon. Sheila G. Farmer, J.
                                                :           Hon. Craig R. Baldwin, J.
-vs-                                            :
                                                :
ROBERT W. SNEDEKER, ET AL.                      :           Case No. 13-CA-98
                                                :
        Defendants-Appellants                   :           OPINION




CHARACTER OF PROCEEDING:                                    Appeal from the Court of Common
                                                            Pleas, Case No. 2013 CV 00341




JUDGMENT:                                                   Affirmed




DATE OF JUDGMENT:                                           April 11, 2014




APPEARANCES:

For Plaintiff-Appellee                                      For Defendants-Appellants

THOMAS WYATT PALMER                                         DAVID C. MORRISON
41 South High Street                                        987 Professional Parkway
Suite 1700                                                  Heath, OH 43056-1698
Columbus, OH 43215
Licking County, Case No. 13-CA-98                                                     2

Farmer, J.

      {¶1}   On April 9, 2013, appellee, JPMorgan Chase Bank, N.A., filed a complaint

in foreclosure against appellants, Robert and Brenda Snedeker. On August 6, 2013,

appellee filed a motion for summary judgment. The next day, appellants filed a motion

to strike the motion. By judgment entry filed September 26, 2013, the trial court denied

appellants' motion to strike. By entry filed September 30, 2013, the trial court granted

appellee's motion for summary judgment, and issued a decree in foreclosure.

Appellants filed a motion to reconsider on October 9, 2013. By judgment entry filed

October 10, 2013, the trial court denied the motion.

      {¶2}   Appellants filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶3}   "THE SUMMARY JUDGMENT IS CONTRARY TO LAW, BECAUSE

APPELLEE, JP MORGAN CHASE BANK, N.A., FAILED TO DEMONSTRATE AN

ABSENCE OF ANY GENUINE ISSUE OF MATERIAL FACT CONCERNING THE

QUESTION WHETHER IT WAS THE REAL PARTY IN INTEREST."

                                            II

      {¶4}   "THE SUMMARY JUDGMENT IS CONTRARY TO LAW, BECAUSE

CHASE FAILED TO DEMONSTRATE AN ABSENCE OF ANY GENUINE ISSUE OF

MATERIAL FACT CONCERNING THE AMOUNT DUE."

                                           III

      {¶5}   "THE TRIAL COURT'S DENIAL OF THE APPELLANT'S MOTION TO

STRIKE THE AFFIDAVIT IN SUPPORT OF CHASE'S SUMMARY-JUDGMENT
Licking County, Case No. 13-CA-98                                                     3


MOTION IS CONTRARY TO LAW, BECAUSE THE AFFIDAVIT WAS INADMISSIBLE

UNDER CIV.R. 56, THE BEST-EVIDENCE RULE, THE AUTHENTICATION RULE,

AND THE RULE AGAINST HEARSAY."

                                          I, II

      {¶6}   Appellants claim the trial court erred in granting summary judgment to

appellee as it did not establish it was the real party in interest or the amount due. We

disagree.

      {¶7}   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

      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.
Licking County, Case No. 13-CA-98                                                        4


         {¶8}   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).

         {¶9}   Apart from filing the motion to strike, appellants did not respond to the

motion for summary judgment. By order filed August 28, 2013, the trial court set the

matter for a non-oral hearing on September 20, 2013 with the following caveat:



                THIS   IS   A   NON-ORAL      HEARING.        THEREFORE,       ALL

         RESPONSES MUST BE FILED IN WRITING PRIOR TO THE DATE AND

         TIME LISTED ABOVE. DO NOT APPEAR FOR THIS HEARING. YOU

         WILL BE ADVISED OF THE DECISION BY THE COURT IN WRITING.



         {¶10} As provided in Civ.R. 56(C): "The motion shall be served at least fourteen

days before the time fixed for hearing. The adverse party, prior to the day of hearing,

may serve and file opposing affidavits." With the summary judgment motion having

been filed on August 6, 2013, the trial court complied with Civ.R. 56 via its scheduling

order.

         {¶11} 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 which demonstrate the absence of a genuine issue of material fact. Dresher v.

Burt, 75 Ohio St.3d 280 (1996). If the moving party satisfies this requirement, the
Licking County, Case No. 13-CA-98                                                            5


burden shifts to the non-moving party to set forth specific facts demonstrating there is a

genuine issue of material fact for trial. Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988).

       {¶12} Civ.R. 56(E) states the following 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.



       {¶13} Under the particular framework of the pleadings in this case, there is no

denial of the issues claimed to be correct in appellee's motion.               Attached to the

complaint as Exhibit C is a "Merger Certificate" which states the following:



                This letter is the official certification of the Office of the Comptroller

       of the Currency for the merger of Bank One, National Association,

       Chicago, Illinois, Charter Nr. 8, and, Bank One, National Association,

       Columbus, Ohio, Charter Nr. 7621, into and under the charter and title of

       JPMorgan Chase Bank, National Association, New York, New York,

       Charter Nr. 24542, effective November 13, 2004.
Licking County, Case No. 13-CA-98                                                          6


       {¶14} The original note attached to the complaint as Exhibit A is to Bank One,

NA, and the mortgage attached as Exhibit B names Bank One, NA as the lender. In an

affidavit filed August 6, 2013, Myrtle Cox, a vice-president for appellee, averred she had

personal knowledge of the amount in default and the amount due on the note.

       {¶15} Appellants essentially argue the issues raised in their motion to strike;

however, once they lost that motion, there was no affirmative effort to challenge the

facts that appellee was in possession of the note and the amount due on the note.

       {¶16} Upon review, we find the facts as claimed by appellee and undisputed by

appellants establish that summary judgment was properly given to appellee.

       {¶17} Assignments of Error I and II are denied.

                                             III

       {¶18} Appellants claim the trial court erred in not granting their motion to strike

the affidavit of Ms. Cox as she did not make the affidavit based on her personal

knowledge, and the attachments were not properly authenticated and violated the best

evidence rule. We disagree.

       {¶19} "Hearsay" is defined as a statement "other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted." Evid.R. 801(C). Evid.R. 803 provides exceptions to the hearsay

rule. Subsection (6) states the following:



              The following are not excluded by the hearsay rule, even though

       the declarant is available as a witness:
Licking County, Case No. 13-CA-98                                                        7


             (6) Records of regularly conducted activity. A memorandum,

      report, record, or data compilation, in any form, of acts, events, or

      conditions, made at or near the time by, or from information transmitted

      by, a person with knowledge, if kept in the course of a regularly conducted

      business activity, and if it was the regular practice of that business activity

      to make the memorandum, report, record, or data compilation, all as

      shown by the testimony of the custodian or other qualified witness or as

      provided by Rule 901(B)(10), unless the source of information or the

      method or circumstances of preparation indicate lack of trustworthiness.

      The term "business" as used in this paragraph includes business,

      institution, association, profession, occupation, and calling of every kind,

      whether or not conducted for profit.



      {¶20} Evid.R. 901 governs requirement of authentication or identification.

Subsection (B)(7) states the following:



             By way of illustration only, and not by way of limitation, the following

      are examples of authentication or identification conforming with the

      requirements of this rule:

             (7) Public records or reports. Evidence that a writing authorized by

      law to be recorded or filed and in fact recorded or filed in a public office, or

      a purported public record, report, statement or data compilation, in any

      form, is from the public office where items of this nature are kept.
Licking County, Case No. 13-CA-98                                                        8


       {¶21} Evid.R. 1002 governs requirement of original and states: "To prove the

content of a writing, recording, or photograph, the original writing, recording, or

photograph is required, except as otherwise provided in these rules or by statute

enacted by the General Assembly not in conflict with a rule of the Supreme Court of

Ohio." Evid.R.       1003 governs admissibility of duplicates and states: "A 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."

       {¶22} In Deutsche Bank National Trust Co. v. Hansen, 5th Dist. Fairfield No.

2010 CA 00001, 2011-Ohio-1223, ¶ 13, this court stated the following:



               Civ.R. 56(E) provides that an affidavit must "be made on personal

       knowledge, [and] set forth such facts as would be admissible in evidence."

       Civ.R. 56(E). 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 v. Swartz, 9th Dist. No.

       03CA008308, 2004-Ohio-1986, at ¶ 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 a reasonable inference

       that the affiant has personal knowledge of the facts in the affidavit. Id.

       This Court has recognized that personal knowledge may be inferred from

       the contents of an affidavit. LaSalle Bank National Association v. Street,

       Licking App. No. 08CA60, 2009-Ohio-1855, ¶ 22.
Licking County, Case No. 13-CA-98                                                      9


        {¶23} The Cox affidavit averred the following:

        {¶24} 1. She is a vice-president for appellee and is authorized to make the

affidavit.

        {¶25} 2. Appellee collects payments and "maintains up-to-date electronic

records concerning the loans it services in its electronic record-keeping system." See, ¶

4.

        {¶26} 3. "The loan records for the Borrower are maintained by Chase in the

course of its regularly conducted business activities and are made at or near the time of

the event, by or from information transmitted by a person with knowledge. It is the

regular practice to keep such records in the ordinary course of a regularly conducted

business activity." See, ¶ 5.

        {¶27} From our review, we find these averments are sufficient to qualify for the

hearsay exception under Evid.R. 803(6) and permit the use of duplicate copies under

Evid.R. 1002 and 1003.

        {¶28} Upon review, we find the trial court did not err in denying appellants'

motion to strike.

        {¶29} Assignment of Error III is denied.
Licking County, Case No. 13-CA-98                                            10


      {¶30} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, J.

Baldwin, J. concur and

Hoffman, P.J. concurs in part and dissents in part.



SGF/sg 319
Licking County, Case No. 13-CA-98                                                        11

Hoffman, P.J., concurring in part and dissenting in part

       {¶31} I concur in the majority’s analysis and disposition of Appellant’s first

assignment of error.

       {¶32} I respectfully dissent, in part, from the majority’s disposition of Appellant’s

second and third assignments of error. My reasons follow.

       {¶33} I find the failure to attach the electronic record of payments referred to in

Cox’s affidavit as required by Civ.R. 56(E) renders summary judgment on the amount

due on the defaulted promissory note inappropriate. A printout of the electronic records

reviewed by Cox could have been easily attached to her affidavit and reviewed by the

trial court for accuracy.   To that extent, I disagree with this Court’s holding in LaSalle

Bank National Association v. Street, Licking Ap. No. 08 CA 60, 2009-Ohio-1855.1

       {¶34} I also find Cox’s affidavit insufficient to establish the payment history prior

to the merger between Bank One and JP Morgan Chase Bank. While Cox’s affidavit is

sufficient to demonstrate personal knowledge of the payment records while being

serviced by JP Morgan Chase Bank after the merger, I find Cox’s affidavit insufficient to

demonstrate her personal knowledge that the payment records maintained while Bank

One serviced the loan were made at or near the time of compilation, were made by a

person from Bank One with knowledge, or were kept in the regular course of Bank

One’s business activity.     Cox was not the custodian of Bank One’s records at all

relevant times.   The merger does not serve to eliminate JP Morgan Chase Bank’s


1
  I do agree with the LaSalle court’s recognition, “even in the absence of evidence from
the non-moving party, the trial court …may not enter summary judgment unless
warranted by law.” Id., at ¶23.
Licking County, Case No. 13-CA-98                                                    12


obligation to provide competent Civ.R. 56 evidence as to those Bank One payment

records.

         {¶35} I would affirm the trial court’s decision granting summary judgment in

regards to the foreclosure, but reverse that portion of its judgment granting a specific

monetary award and remand the case to the trial court for further proceedings on that

issue.
