Wells Fargo Bank, N.A. v. Dawson , 2014 Ohio 269 ( 2014 )

[Cite as Wells Fargo Bank, N.A. v. Dawson, 2014-Ohio-269.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WELLS FARGO BANK, N.A. JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2013CA00095
DAIVD D. DAWSON, ET AL.
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2012CV01673
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 21, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
STEPHEN D. WILLIGER MARC E. DANN
RICHARD A. FRESHWATER GRACE DOBERDRUK
Thompson Hine LLP Dann, Doberdruk & Harshman
3900 Key Center, 127 Public Square 4600 Prospect Avenue
Cleveland, Ohio 44114 Cleveland, Ohio 44103
SCOTT P. CIUPAK
DOUGLAS A. HAESSIG
Reimer, Arnovitz, Chernek &
Jeffrey Co., L.P.A.
P.O. Box 39696
Solon, Ohio 44139
Stark County, Case No. 2013CA00095 2
Hoffman, J.
{¶1} Defendants-appellants David D. Dawson and Amy B. Dawson appeal the
April 25, 2013 Judgment Entry entered by the Stark County Court of Common Pleas,
which granted summary judgment in favor of plaintiff-appellee Wells Fargo Bank, N.A.
(“Wells Fargo”), and issued a decree of foreclosure.
STATEMENT OF THE FACTS AND CASE
{¶2} On July 26, 2005, Appellants executed a promissory note ("the Note") in
the amount of $332,000, which amount was secured by a mortgage ("the Mortgage")
against real property located at 10745 Johnston St., NW, Canal Fulton, Stark County,
Ohio. The Mortgage was recorded in the Stark County Recorder's Office on August 2,
2005. The Note was originally payable to Washington Mutual Bank, FA ("WaMu").
{¶3} On March 29, 2012, JPMorgan Chase Bank, N.A., successor in interest by
purchase from the FDIC as receiver of WaMu ("Chase"). Chase executed an
assignment of mortgage to Wells Fargo and recorded the same with the Stark County
Recorder's Office on April 13, 2012. Wells Fargo, as Trustee for WaMu Mortgage Pass-
through Certificates Series 2006-PR1, filed a complaint in foreclosure on May 23, 2012.
In the complaint, Wells Fargo alleged it had "complied with all conditions precedent as
set forth in the Note and Mortgage" prior to filing the action. Appellants filed a pro se
answer and requested the matter be referred to mediation. Appellant's set forth a
general denial of the allegations in their answer.
{¶4} The trial court referred the matter to mediation, but such was
unsuccessful. The trial court scheduled a trial for April 12, 2013. On April 8, 2013,
Wells Fargo filed a motion for summary judgment. In support of its motion, Wells Fargo
Stark County, Case No. 2013CA00095 3
attached the affidavit of Nicole L. Smiley, a Vice President of Chase, which was the
servicer of the loan on behalf of Wells Fargo. Smiley averred she had reviewed the
business records related to the loan, had knowledge of how such records were kept and
maintained, and gave her affidavit based upon the knowledge she gained through her
review of those records. Smiley also stated, "true and accurate copies of the Note and
Mortgage were attached to her affidavit as Exhibits and that the debt was 'accelerated *
* * in accordance with the terms of the loan documents." The exhibits showed the Note
was indorsed in blank and the Mortgage was assigned to Wells Fargo. Smiley further
indicated the documents were part of Chase's business records.
{¶5} Appellants filed a memorandum in opposition to Wells Fargo's motion for
summary judgment on April 15, 2013. Appellants included the affidavit of Appellant
David Dawson, in which he averred he had never received a notice of default.
{¶6} Via Judgment Entry filed April 25, 2013, the trial court granted summary
judgment in favor of Wells Fargo and issued a decree of foreclosure.
{¶7} It is from this judgment entry Appellants appeal, raising the following
assignments of error:
{¶8} “I. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT
FOR APPELLEE WELLS FRAGO [SIC] BANK, N.A. WHEN APPELLEE’S AFFIDAVIT
DID NOT STATE THAT AN ACCELRATION [SIC] NOTICE WAS MAILED,
APPELLANT DAVID DAWSON FILED AN AFFIDAVIT STATING THAT HE HAD
NEVER RECEIVED AN ACCLERATION [SIC] NOTICE, AND APPELLEE NEVER
FILED A REPLY BRIEF OR PRODUCED THE NOTICE.
Stark County, Case No. 2013CA00095 4
{¶9} “II. THE TRIAL COURT ERRED BY RELYING ON THE AFFIDAVIT OF
NICOLE L. SMILEY FILED IN SUPPORT OF APPELLEE’S MOTION FOR SUMMARY
JUDGMENT BECAUSE THE AFFIDAVIT WAS NOT MADE UPON PERSONAL
KNOWLEDGE.”
I
{¶10} In their first assignment of error, Appellants maintain the trial court erred in
granting summary judgment in favor of Wells Fargo. We disagree.
{¶11} 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.
{¶12} 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
Stark County, Case No. 2013CA00095 5
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35 (1987).
{¶13} Appellants contend the trial court erred in granting summary judgment to
Wells Fargo as the bank failed to satisfy a condition precedent to foreclosure.
Specifically, Appellants submit Wells Fargo did not establish a notice of default and
intent to accelerate had been given to Appellants as required by paragraph 22 of the
Mortgage. Appellants refer to the affidavit of Nicole L. Smiley, noting the affiant did not
state a notice of default and intent to accelerate was mailed to Appellants. In his
affidavit, Appellant David Dawson expressly indicated he had not received such notice.
{¶14} This Court has repeatedly found sending notice of default and intent to
accelerate is a condition precedent to filing for foreclosure. See, Wells Fargo Bank, N.A.
v. Ward, 5th Dist. No. 2012CA00143, 2013-Ohio-2066.
{¶15} In its complaint, Wells Fargo alleged it complied with all conditions
precedent. Further, in her affidavit, Nicole Smiley testified the debt was "accelerated * *
* in accordance with the terms of the loan documents." "In pleading the performance or
occurrence of conditions precedent, it is sufficient to aver generally that all conditions
precedent have been performed or have occurred." Ward, supra. We find these general
statements are sufficient to establish compliance with the conditions precedent.
{¶16} We now must determine whether Appellant David Dawson’s affidavit was
sufficient to rebut the presumption of compliance. In his affidavit, Appellant David
Dawson states he never received the notice of default and intent to accelerate. We find
this averment is insufficient to create a disputed fact as to whether Wells Fargo
Stark County, Case No. 2013CA00095 6
complied with the condition precedent by mailing the notice of default and intent to
accelerate. It is the act of mailing, not receipt, that satisfies the condition precedent.1
{¶17} Based upon the foregoing, we find the trial court did not err in granting
summary judgment in favor of Wells Fargo.
{¶18} Appellants' first assignment of error is overruled.
II
{¶19} In their second assignment of error, Appellants maintain the trial court
erred in relying on the affidavit of Nicole Smiley when it granted Wells Fargo's motion for
summary judgment as the affidavit was not made upon personal knowledge.
{¶20} In Wachovia Bank v. Jackson, 5th Dist. No. 2010-CA-00291, 2011-Ohio-
3202, this Court, citing Lasalle Bank Nat’l. Assoc. v. Street, Licking App. No. 08CA60,
2009–Ohio–1855, noted:
“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 County, Defiance App. No. 4–04–08, 2004–Ohio–6187,
at paragraph 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 of Civ.R. 56(E). Tolson v. Triangle Real Estate, Franklin
App. No. 03AP–715, 2004–Ohio–2640, paragraph 12. However, self-
1
We note there was no affidavit from Appellant Amy Dawson averring she did not
receive the notice.
Stark County, Case No. 2013CA00095 7
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, paragraph 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, paragraph 73, citing Beneficial Mortgage Co. v. Grover (June 2,
1983), Seneca App. No. 13–82–41.” Lasalle at paragraphs 21–22.
* * “ ‘Personal knowledge’ has been defined as knowledge of
factual truth which does not depend on outside information or hearsay.” * *
* 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 a reasonable
inference that the affiant has personal knowledge of the facts in the
affidavit. Id.” Id. at para 26 and 27 (Citations omitted).
{¶21} In her affidavit, Smiley averred:
1. I am authorized to execute this affidavit on behalf of [Chase].
The statements made in this Affidavit are based on my personal
knowledge.
2. I am over the age of 18 and competent to testify * * *
3. * * *
Stark County, Case No. 2013CA00095 8
4. In my capacity as Vice President, I have access to Chase’s
business records, maintained in the ordinary course of regularly
conducted business activity, including the business records for and
relating to [Appellants’] loan. * * * I make this affidavit based upon my
review of those records relating to [Appellants’] loan and from my personal
knowledge of how they are kept and maintained. The loan records for
[Appellants] 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.
5. Chase’s business records that relate to [Appellants’] loan that I
reviewed and relied upon for the statements made in this Affidavit include
but are not limited to the Note, Mortgage, and Chase’s electronic servicing
system. * * *
6. * * * Chase * * * is the servicer of the loan and is authorized to
act on behalf of the holder of the note.
7. [Appellants have] defaulted under the terms of the Note and
Mortgage. * * *the loan balance has been accelerated making the entire
balance due and owing in accordance with the terms of the loan
documents.
{¶22} We find Smiley's affidavit meets the Wachovia Bank v. Jackson standards.
{¶23} Within this assignment of error, Appellants also argue Wells Fargo failed
to demonstrate it had standing to bring the action as the Note had not been assigned.
Appellants did not separately assign the standing issue. Pursuant to App.R. 12(A)(2),
Stark County, Case No. 2013CA00095 9
we are not required to address issues which are not argued separately as assignments
of error, as required by App.R. 16(A). Kremer v. Cox (1996), 114 Ohio App.3d 41, 60,
682 N.E.2d 1006; Hawley v. Ritley (1988), 35 Ohio St.3d 157, 159, 519 N.E.2d 390.
Nonetheless, we would overrule this argument. The assignment of a mortgage, without
an express transfer of the note, is sufficient to transfer both the mortgage and the note if
the record indicates the parties intended to transfer both the note and mortgage. Bank
of New York v. Dobbs, 5th Dist. No.2009–CA–000002, 2009–Ohio 4742. See also
Federal Home Loan Mtge. Corp. v. Rufo, 983 N.E.2d 406, 2012–Ohio–5930 (11th
Dist.2012) (holding the assignment of the mortgage also resulted in the transfer of the
note on that date); Self Help Ventures Fund v. Jones, 11th Dist. No.2012–A–0014,
2013–Ohio–868 (holding that assignment of mortgage is sufficient to transfer a
contemporaneous note).
{¶24} Appellants' second assignment of error is overruled.
{¶25} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur