Ocwen Loan Servicing, L.L.C. v. Graf , 2018 Ohio 2411 ( 2018 )

[Cite as Ocwen Loan Servicing, L.L.C. v. Graf, 2018-Ohio-2411.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Ocwen Loan Servicing, LLC, :
Plaintiff-Appellee, :
No. 17AP-361
v. : (C.P.C. No. 16CV-2542)
David M. Graf et al., : (REGULAR CALENDAR)
Defendants-Appellants. :
D E C I S I O N
Rendered on June 21, 2018
On brief: Blank Rome, LLP, Chrissy Dunn Dutton, and
John R. Wirthlin, for appellee. Argued: John R. Wirthlin.
On brief: Legal Aid Society of Columbus, and Leslie
Varnado, Jr., for appellants David M. Graf and Michelle Graf
Crawford. Argued: Leslie Varnado, Jr.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendants-appellants, David M. Graf ("Graf") and Michelle Graf Crawford
("Crawford"), appeal from a judgment of the Franklin County Court of Common Pleas in
favor of defendant-appellee, Ocwen Loan Servicing, LLC ("Ocwen"). For the reasons that
follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On December 30, 2009, Graf and his late wife, Donna Graf (the "Grafs"),
executed a note in favor of GMAC Mortgage ("GMAC") in the original amount of $120,421
and a mortgage pledging the Grafs' new residence at 3590 Rolling Hills Lane, Grove City,
No. 17AP-361 2
Ohio 43123, as security for the note. The note was insured by the Federal Housing
Authority ("FHA"). GMAC subsequently endorsed the note in blank.
{¶ 3} On February 7, 2013, the Grafs were informed Ocwen had assumed the
servicing responsibility for their FHA loan. On July 28, 2014, Ocwen sent a letter to the
Grove City address notifying the Grafs of a default in payment and informing the Grafs
Ocwen intended to accelerate the balance due on the note. There is no dispute in this case
the Grafs defaulted on the note. An assignment of the mortgage to Ocwen was recorded on
March 24, 2015.
{¶ 4} When Donna Graf passed away, her interest in the property passed to her two
children, Crawford and David S. Graf. David S. Graf has not appeared in this action.
{¶ 5} Pursuant to applicable federal regulations, the note and corresponding
mortgage places certain limitations on Ocwen's right to declare a default and commence
foreclosure proceedings. More particularly, Section 9(d) of the note provides in relevant
part: "This Security Instrument does not authorize acceleration or foreclosure if not
permitted by regulations of the Secretary." (Ex. B, attached to Complaint.) The relevant
regulations issued by the FHA Secretary appear at 24 C.F.R. 203 et seq. Of critical
importance to this action is 24 C.F.R. 203.604, which provides, in relevant part, as follows:
(b) The mortgagee must have a face-to-face interview with
the mortgagor, or make a reasonable effort to arrange such a
meeting, before three full monthly installments due on the
mortgage are unpaid. If default occurs in a repayment plan
arranged other than during a personal interview, the
mortgagee must have a face-to-face meeting with the
mortgagor, or make a reasonable attempt to arrange such a
meeting within 30 days after such default and at least 30 days
before foreclosure is commenced, or at least 30 days before
assignment is requested if the mortgage is insured on
Hawaiian home land pursuant to section 247 or Indian land
pursuant to section 248 or if assignment is requested under §
203.350(d) for mortgages authorized by section 203(q) of the
National Housing Act.
(c) A face-to-face meeting is not required if:
***
No. 17AP-361 3
(2) The mortgaged property is not within 200 miles of the
mortgagee, its servicer, or a branch office of either.
(Emphasis added.)
{¶ 6} On March 14, 2016, Ocwen commenced a foreclosure action in the Franklin
County Court of Common Pleas against appellants and several other necessary parties. A
copy of the note and mortgage were attached as exhibits to the complaint in support of
Ocwen's allegation that it was both the holder of the note at the time it filed the complaint
and, as assignee of the mortgage, the party entitled to initiate foreclosure.
{¶ 7} On March 31, 2016, the Franklin County Treasurer filed an answer to the
complaint, and on April 11, 2016, appellants filed their answer. Among the defenses
asserted by appellants were the following: "[Ocwen] is required to provide him with notice
of the interview and to actually conduct a face-to-face interview with him prior to filing the
foreclosure complaint. These steps were not taken in this case. Further, there are no
exceptions that waive the requirements of notice and conducting a face-to-face interview.
Moreover, the plaintiff failed to issue the required notice informing David M. Graf of the
opportunity of having a face-to-face interview. Both the failure to conduct the required
interview and the failure to provide notice of the interview are violations of 24 C.F.R.
§203.604(b)." (Apr. 11, 2016 Answer at ¶ 3.)
{¶ 8} On January 17, 2017, Ocwen filed a motion for summary judgment on the
complaint. In support of the motion, Ocwen submitted the affidavit of Jesse Rosenthal,
Ocwen's contract management coordinator. Rosenthal's affidavit contains the following
relevant averments:
1. * * * I am over the age of eighteen years, and I have personal
knowledge of the facts and matters stated herein. The
statements set forth in this Affidavit are true and correct, to the
best of my knowledge and belief.
***
14. [P]ursuant to the regulations of the U.S. Department of
Housing and Urban Development, no attempts to conduct a
face-to-face meeting were necessary and required because the
mortgaged property is not within 200 miles of the mortgagee,
its servicer or a branch office of either.
No. 17AP-361 4
(Rosenthal Aff. at 1, 4, attached to Pl.'s Mot. for Summ. Jgmt.)
{¶ 9} On February 28, 2017, appellants filed a memorandum in opposition to
Ocwen's motion for summary judgment and a cross-motion for summary judgment.
Appellants submitted the affidavit of Graf both in opposition to Ocwen's motion for
summary judgment and in support of appellants' cross-motion for summary judgment. In
his affidavit, Graf avers as follows:
Having been duly cautioned, the affiant says the following
statements are true:
***
4. The plaintiff, Ocwen Loan Servicing, has not pursued
reasonable loss mitigation efforts. There should be no
forfeiture of my right to own real estate when that is the case.
5. The servicer, Ocwen Loan Servicing, does have branch
within 200 miles of Columbus in Springfield, Ohio at One
Assurant Way, Springfield, Ohio 45505 per its website as
noted in Exhibit 2.
6. Ocwen Loan Servicing has not provided me with certified
notice of a face-to-face interview prior to filing the foreclosure
petition.
7. Ocwen Loan Servicing has not attempted to provide me with
me of notice of loss mitigation by making a visit to my residence
prior to filing the foreclosure petition.
8. Ocwen Loan Servicing has not conducted a face-to-face
interview with me prior to filing the foreclosure complaint.
(Emphasis added.) (Graf Aff. at 1-2, attached to Def.'s Memo. in Opp. to Mot. for Summ.
Jgmt.)
{¶ 10} "Exhibit 2" referenced in the affidavit and attached thereto is a two-page
document which looks to be a screen shot printed from an Internet website. The Uniform
Resource Locator ("URL") printed at the very top of each page reads:
"https://www.ocwencustomers.com/T001/public/contactCompanyPre ...." Just below
the URL is what appears to be an Ocwen corporate logo, a telephone number for
"Customer Care," and the words "Contact Ocwen" appearing in large print just above a
No. 17AP-361 5
solid black line. Below the line, there are a number of headings such as "Payments,"
"Customer Inquiries," and "Tax," each with telephone numbers and addresses listed. The
following information appears under the heading "Property Insurance Claims":
Regular Mail:
Ocwen Loan Servicing, LLC
Insurance Loss Drafts
PO Box 6501
Springfield, OH 45501
Overnight Mail:
Ocwen Loan Servicing, LLC
Insurance Loss Drafts
One Assurant Way
Springfield, OH 45505
Telephone:
Loss Drafts: (866) 825-9266
Fax: (470) 415-5185
Hours of Operation:
Monday through Friday 8:00 a.m. to 9:00 p.m. ET
Saturday 8:00 a.m. to 5:00 p.m. ET
Sunday 9:00 a.m. to 9:00 p.m. ET
(Ex. 2, Graff Aff.)
{¶ 11} A subscript on page two of the document contains the notation: "NMLS#:
1852 Ocwen Loan Servicing, LLC." (Ex. 2, Graff Aff.)
{¶ 12} On March 7, 2017, Ocwen filed a reply in support of its motion for summary
judgment. In its reply, Ocwen argued that Graf's averment regarding the existence of a
Springfield, Ohio branch office was not based on his own personal knowledge and that the
unauthenticated screen shot attached to his affidavit contains inadmissible hearsay.
Accordingly, Ocwen maintained Graf's affidavit does not contain admissible evidence to
rebut Rosenthal's averment that "the mortgaged property is not within 200 miles of the
mortgagee, its servicer or a branch office of either." (Rosenthal Aff. at ¶ 14.) In the
alternative, Ocwen argued even if the trial court were to consider Graf's affidavit, pursuant
to the decision of the Fourth District Court of Appeals in Wells Fargo Bank, N.A. v. Dumm,
4th Dist. No. 13CA5, 2014-Ohio-3124, the affidavit does not give rise to an issue of fact
No. 17AP-361 6
whether the mortgaged property was within 200 miles of an Ocwen "branch office," as that
term is used in 24 C.F.R. 203.604(c).
{¶ 13} On April 19, 2017, the trial court issued a decision granting Ocwen's motion
for summary judgment and denying appellants' cross-motion for summary judgment. The
trial court held the averment in Graf's affidavit regarding the Ocwen office in Springfield,
Ohio did not permit the inference that Ocwen had an office at that location that conducted
loan originating or loan servicing functions. The trial court found, at best, the affidavit and
documents attached thereto established that Ocwen maintained an insurance claims office
at the Springfield location. Accordingly, the trial court granted Ocwen's motion for
summary judgment and denied appellants' cross-motion for summary judgment.
{¶ 14} Appellants timely appealed to this court from the judgment of the trial court.
II. ASSIGNMENT OF ERROR
{¶ 15} Appellants sets forth the following assignment of error:
THE TRIAL COURT ERRED IN GRANTING THE
APPELLEE'S MOTION FOR SUMMARY JUDGMENT AND
ERRED IN DENYING THE APPELLANTS' CROSS MOTION
FOR SUMMARY JUDGMENT.
III. STANDARD OF REVIEW
{¶ 16} We review a summary judgment motion de novo. Leonard v. MBB
Partnership, 10th Dist. No. 15AP-956, 2016-Ohio-3534, ¶ 7, citing Regions Bank v. Seimer,
10th Dist. No. 13AP-542, 2014-Ohio-95, ¶ 9. Pursuant to Civ.R. 56(C), 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."
{¶ 17} "[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record before the
trial court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). The
burden then shifts to the defending party to set forth specific facts showing there is a
No. 17AP-361 7
genuine issue for trial. Id. If the defending party does not so respond, summary judgment,
if appropriate, may be entered in favor of the party seeking affirmative relief. Id.IV. LEGAL ANALYSIS
{¶ 18} Appellants argue that Graf's affidavit provided admissible evidence the
mortgaged property is within 200 miles of an Ocwen "branch office," as that term is used
in 24 C.F.R. 203.604(c). Accordingly, appellants argue the trial court erred when it granted
summary judgment for Ocwen.
{¶ 19} Ocwen's threshold argument in support of the trial court's ruling is that
Rosenthal's affidavit establishes Ocwen does not have any office within 200 miles of
appellants' Grove City address and that Graf's affidavit does not contain admissible
evidence to rebut the relevant averments in Rosenthal's affidavit. Ocwen maintains
because appellants did not produce any admissible evidence to rebut Rosenthal's affidavit,
there is no factual issue regarding Ocwen's compliance with 24 C.F.R. 203.604(b). We
agree.
{¶ 20} As noted above, Ocwen objected to Graf's affidavit in the trial court on several
evidentiary bases including Graf's lack of personal knowledge, his failure to properly
authenticate the screen shot attached as an exhibit to his affidavit, and hearsay.1 "When an
appellate court reviews a trial court's disposition of a summary judgment motion, it applies
the same standard as the trial court and conducts an independent review, without deference
to the trial court's determination." Riverside v. State, 190 Ohio App.3d 765, 2010-Ohio-
5868, ¶ 17 (10th Dist.), citing Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107
(10th Dist.1992); Brown v. Cty. Commrs., 87 Ohio App.3d 704, 711 (4th Dist.1993). "We
must affirm the trial court's judgment if any grounds the movant raised in the trial court
support it." Riverside at ¶ 17, citing Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42
(9th Dist.1995).
{¶ 21} Pursuant to Civ.R. 56(E), "[s]upporting 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
1 We disagree with appellants' contention that Ocwen conceded it has an insurance claims office in Springfield,
Ohio. The record shows that Ocwen addressed the information in Graf's affidavit only in furtherance of its
alternative argument based on the holding in Dumm.
No. 17AP-361 8
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." Civ.R. 56(E). Additionally, " '[o]nly facts
which would be admissible in evidence can be * * * relied upon by the trial court when ruling
upon a motion for summary judgment.' " Guernsey Bank v. Milano Sports Ents., LLC, 177
Ohio App.3d 314, 2008-Ohio-2420, ¶ 20 (10th Dist.), quoting Tokles & Son, Inc. v.
Midwestern Indemn. Co., 65 Ohio St.3d 621, 631 (1992), fn. 4.
{¶ 22} Civ.R. 56(E) requires affidavits filed in support of or in opposition to
summary judgment must be made on personal knowledge. Applegate v. N.W. Title Co.,
10th Dist. No. 03AP-855, 2004-Ohio-1465, ¶ 33, citing State ex rel Cassels v. Dayton City
School Dist. Bd. of Edn., 69 Ohio St.3d 217, 223 (1994). " '[P]ersonal knowledge' " is defined
as " 'knowledge of the truth in regard to a particular fact or allegation, which is original, and
does not depend on information or hearsay.' " Applegate at ¶ 33, quoting Brannon v.
Rinzler, 77 Ohio App.3d 749, 756 (2d Dist.1991). "An affidavit without an averment of
personal knowledge must demonstrate personal knowledge specifically." Applegate at
¶ 33, citing Equitable Assur. Corp. v. Kuss, 17 Ohio App.3d 136, 138 (3d Dist.1984).
" 'Personal knowledge' must be 'gained through firsthand observation or experience.' "
(Internal quotation marks omitted.) Bader v. Ferri, 3d Dist No. 1-13-01, 2013-Ohio-3074,
¶ 15, quoting Emerson Family Ltd. Partnership v. Emerson Tool, L.L.C., 9th Dist. No.
26200, 2012-Ohio-5647, ¶ 19, quoting Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio
St.3d 314, 2002-Ohio-2220, ¶ 26, and Black's Law Dictionary 875 (7th Ed.Rev.1999). "The
subject of a witness's testimony must have been perceived through one or more of the
senses of the witness." (Internal quotation marks omitted.) Emerson at ¶ 19, quoting
Bonacorsi at ¶ 26, and Weissenberger, Ohio Evidence, Section 602.1, at 213 (2002).
" 'Courts have found that the personal knowledge requirement of Civ.R. 56(E) is satisfied
where the affiant asserts personal knowledge and the nature of the facts involved and the
identity of the affiant "creates a reasonable inference that the affiant has personal
knowledge of the facts in the affidavit." ' " Bader at ¶ 15, quoting Retail Recovery Serv. of
New Jersey v. Conley, 3d Dist. No. 10-09-15, 2010-Ohio-1256, ¶ 16, quoting Bank One,
N.A. v. Lytle, 9th Dist. No. 04CA008463, 2004-Ohio-6547, ¶ 13.
{¶ 23} In this case, the critical averment in Graf's affidavit is as follows: "The
servicer, Ocwen Loan Servicing, does have branch within 200 miles of Columbus in
No. 17AP-361 9
Springfield, Ohio at One Assurant Way, Springfield, Ohio 45505 per its website as noted in
Exhibit 2." (Graf. Aff. at ¶ 5.) This is the only averment in Graf's affidavit that arguably
refutes Ocwen's claim that it is exempt from the face-to-face interview requirements of 24
C.F.R. 203.604(b). Graf's affidavit, however, contains no averment he has personal
knowledge of any of the facts contained therein.
{¶ 24} In Wells Fargo v. Phillabaum, 192 Ohio App.3d 712, 2011-Ohio-1311 (4th
Dist.), the issue for the court was whether the mortgagor's affidavit contained admissible
evidence the mortgagee/bank maintained a branch within 200 miles of the mortgaged
property for purposes of 24 C.F.R. 203.604. The bank argued it fell under an exception to
24 C.F.R. 203.604 based on the affidavit of an employee who averred the " 'mortgaged
property is not within 200 miles of the mortgagee, its servicer, or a branch office of either.' "
(Emphasis sic.) Id. at ¶ 11, quoting 24 C.F.R. 203.604(c). The affidavit in support of the
mortgagor's cross-motion for summary judgment stated "Wells Fargo has at least one
branch office within 200 miles of my home" and went on to explain he visited that office on
at least one prior occasion. Id. The Fourth District held appellee's affidavit was sufficient
"to carry his initial Civ.R. 56(C) burden and, thus, the burden shifted to the Bank to provide
rebuttal materials." Id.
{¶ 25} Graf's affidavit does not contain an averment that he has personal knowledge
of the information contained therein. The affidavit contains no other facts or information
which would permit the inference that Graf has personal knowledge that Ocwen has a
branch office in Springfield, Ohio. Unlike the affiant in Phillabaum, Graf does not claim to
have ever seen or visited the Springfield branch, nor does he claim to have ever contacted
the Springfield branch either by telephone or other means. Consequently, Graf's knowledge
of the existence an Ocwen Springfield branch office, if any, arises exclusively from the
screen shot attached to his affidavit as Exhibit 2.
{¶ 26} In the trial court, Ocwen argued Exhibit 2 was not properly authenticated.
We agree.
{¶ 27} "Documents that are 'not sworn, certified, or authenticated by affidavit have
no evidentiary value' and cannot be considered by the trial court on summary judgment
unless 'the opposing party has raised no objection.' " Emerson at ¶ 15, quoting Green v.
No. 17AP-361 10
B.F. Goodrich Co., 85 Ohio App.3d 223, 228 (9th Dist.1993). Evid.R. 901 governs
authentication and provides, in relevant part, as follows:
(A) General provision. 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.
(B) Illustrations. 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:
(1) Testimony of witness with knowledge. Testimony that a
matter is what it is claimed to be.
{¶ 28} In State ex rel. Montgomery v. Villa, 101 Ohio App.3d 478 (10th Dist.1995),
this court noted cases decided under the analogous provisions of Fed.R.Evid. 901 are
helpful to the court in determining the requirements for authenticating documentary
evidence purportedly taken for commercial websites. Id. at 484-85. In Foreword
Magazine, Inc. v. OverDrive, Inc., W.D. Mich. No. 1:10-cv-1144 (Oct. 31, 2011), the district
court discussed the authentication of screen shots from Internet websites under
Fed.R.Evid. 901:
"The Federal Rules of Evidence, including Rule 901, apply to
computer-based evidence in the same way as they do to other
evidence." 5 Weinstein's Federal Evidence § 900.05(1)(b) at
900-50 (2d. ed. 2004). The federal district courts have applied
the concepts embodied in Rule 901 to questions involving
authentication of screen shots from Internet websites.
Although records from government websites are generally
considered to be self-authenticating, see Williams v. Long, 585
F. Supp. 2d 679, 686-89 (D. Md. 2008), exhibits reflecting
information from commercial websites must be authenticated
by one of the methods allowed by Rule 901, including
testimony from a witness with personal knowledge, expert
testimony, or reference to distinctive characteristics. See
Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 556 (D. Md.
2007).
{¶ 29} In Montgomery, this court borrowed from federal case law in explaining the
burden on the proponent of an Internet website:
No. 17AP-361 11
"[T]he showing of authenticity is not on a par with more
technical evidentiary rules, such as hearsay exceptions,
governing admissibility. Rather, there need be only a prima
facie showing, to the court, of authenticity, not a full argument
on admissibility. Once a prima facie case is made, the evidence
goes to the jury and it is the jury who will ultimately determine
the authenticity of the evidence, not the court. The only
requirement is that there has been substantial evidence from
which they could infer that the document was authentic."
(Emphasis added.) Id. at 484-85, quoting United States v. Reilly, 33 F.3d 1396, 1404 (3d
Cir.1994).
{¶ 30} In GMAC Bank v. Bradac, 8th Dist. No. 105242, 2017-Ohio-7888, the
mortgagor submitted her own affidavit attaching numerous exhibits in opposition to the
mortgagee's motion for summary judgment. "The facts averred in her affidavit were mostly
based on her internet research, which facts she has no personal knowledge of; and the
exhibits were mostly unauthenticated documents she printed from various websites." Id.
at ¶ 16. The mortgagor's affidavit did not contain an averment the exhibits were true and
accurate copies of the originals. The trial court struck most of the exhibits.
{¶ 31} The Eighth District Court of Appeals in Bradac held that because copies of
the assignment of the subject mortgage printed from the Cuyahoga County Fiscal Officer's
website were not authenticated with testimony by a witness with knowledge or by a certified
copy as required by Evid.R. 901, the mortgagor could not rely on the copies in opposition
to the mortgagee's motion for summary judgment. Id. at ¶ 22. The Eighth District did not
treat the pages allegedly printed from the fiscal officer's website as self-authenticating. Id.
{¶ 32} In his affidavit in opposition to Ocwen's motion for summary judgment, Graf
does not claim the screen shot attached as Exhibit 2 is a true and accurate copy of
information contained on Ocwen's website. Though the screen shot attached to Graf's
affidavit contains a URL at the top of each page and some other identifying information,
Graf does not provide any factual information in his affidavit which would permit the trial
court to determine the screen shot is a true and accurate copy of information on Ocwen's
website. Graff does not claim to have ever seen or visited the Springfield branch office at
the address listed on the website, nor does he claim to have ever contacted the Springfield
branch office at the telephone number listed on the screen shot or by any other means.
No. 17AP-361 12
Graf's affidavit contains no averment that he personally accessed the information from the
URL listed at the top of the screen shot, that he personally downloaded the information to
his computer, or that he personally printed the copy of the screen shot attached to his
affidavit as Exhibit 2.
{¶ 33} In Fish v. Stone, W.D.Tenn. No. 2:17-cv-02093-SHM-EGB (Dec. 29, 2017), a
borrower attempted to establish the lender was a "debt collector" in order to show the
lender failed to comply with federal debt collection regulations. The debtor submitted a
screen shot from the lender's website in support of his motion for summary judgment. In
responding to the lender's objection to the website, the debtor attempted to authenticate
the document by representing that "the undersigned certifies that the printouts * * *
accurately represent the website listed at the top of each page, as it appeared on June 13,
2017." Id. The district court held the website information was inadmissible for purposes
of summary judgment. In so holding, the court reviewed relevant decisions regarding
authentication of websites:
Courts confronting images that purport to represent websites
have held that "[t]o authenticate printouts from a website, the
party proffering the evidence must produce some statement or
affidavit from someone with knowledge of the website . . . for
example a web master or someone else with personal
knowledge would be sufficient." St. Luke's Cataract and Laser
Institute v. Sanderson, 2006 U.S. Dist. LEXIS 28873, 2006
WL 1320242, at *2 (M.D. Fla. 2006) (internal citations and
quotation marks omitted); see also United States v. Bansal,
663 F.3d 634, 667-68 (Fed. Cir. 2011) (concluding that
testimony of a witness with personal knowledge was sufficient
to authenticate screenshot images of a website); Wady v.
Provident Life and Accident Ins. Co. of America, 216 F. Supp.
2d 1060, 1064 (C.D. Cal. 2002) (sustaining objection to
affidavit of a witness attempting to authenticate documents
from a website because the affiant had no personal knowledge
of who maintained the website). Plaintiff has not offered
evidence "sufficient to support a finding that the [website] is
what the proponent claims it is." Rule 901(a).
Id.{¶ 34} Though we do not believe Graf needed to present the testimony of the
Internet webmaster in order to authenticate the screen shot at issue in this case, Graf's
No. 17AP-361 13
affidavit essentially treats Exhibit 2 as a self-authenticating document. In our opinion, Graf
could not have done less in this case to establish his personal knowledge of the existence of
the Springfield office or to establish the screen shot is authentic. Without any averment
Exhibit 2 represents a true and accurate copy of information from Ocwen's website, and in
the absence of substantial evidence from which the trial court could infer the screen shot
was authentic, we find Exhibit 2 is of no evidentiary value and could not be considered by
the trial court in ruling on Ocwen's motion for summary judgment. Bradac.
{¶ 35} In 2003, this court noted "the authentication requirements for documents
copied from the internet may not yet be fully established," and "assurances of authenticity
are especially important due to the technical ease of altering downloaded materials." State
ex rel. Leslie v. Ohio Hous. Fin. Agency, 10th Dist. No. 02AP-1147, 2003-Ohio-6560, ¶ 70,
fn. 1, affd. in part and rev. in part, State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio
St.3d 261, 2005-Ohio-1508. We also noted "a party's statement that 'I downloaded these
pages from the internet' is probably not sufficient to authenticate a downloaded document."
Id. Here, Graf's affidavit does not even contain an averment he personally downloaded
Exhibit 2 from the Internet.
{¶ 36} In 2007, the United States District Court in Maryland decided Lorraine v.
Markel Amer. Ins. Co., 241 F.R.D. 534 (D.Md.2007). The Lorraine case has been identified
as "[o]ne of the earliest and most comprehensive cases addressing the evidentiary hurdles
of admitting [electronically stored information]." State v. Gibson, 6th Dist. No. L-13-1222,
2015-Ohio-1679, ¶ 38. In Lorraine, the district court made similar observations regarding
the reliability of electronically stored information:
"There are many states in the development of computer data
where error can be introduced, which can adversely affect the
accuracy and reliability of the output. * * * Determining what
degree of foundation is appropriate in any given case is in the
judgment of the court. The required foundation will vary not
only with particular circumstances but also with the individual
judge."
Id. at 543-44, quoting Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal
Evidence, Section 900.06[3] (Joseph M. McLaughlin Ed., Matthew Bender 2d Ed.1997).
No. 17AP-361 14
{¶ 37} In this case, Graf's affidavit does not contain an averment he has personal
knowledge of the facts and information contained therein. The affidavit is also devoid of
even the most basic information necessary to establish his personal knowledge that Ocwen
maintained a "branch office" in Springfield. He also failed to aver the screen shot attached
to his affidavit as Exhibit 2 was a true and accurate copy of information contained on
Ocwen's website and failed to provide substantial evidence from which the trial court could
infer the document was authentic. Montgomery at 484-85. In light of Ocwen's objections,
appellants could not have made less of an effort to make out a prima facie showing of
authenticity.
{¶ 38} Moreover, " '[h]earsay statements, unless an exception to the hearsay rule,
are not admissible evidence in a summary judgment context.' " Guernsey Bank at ¶ 59,
quoting Paulino v. McCary, 10th Dist. No. 04AP-1186, 2005-Ohio-5920, ¶ 6, fn. 1. See also
Ullmann v. Duffus, 10th Dist. No. 05AP-299, 2005-Ohio-6060, ¶ 23; Jones v. Greene
Countrie Apts., 1oth Dist. No. 94APE01-105 (June 14, 1994). As a general rule, "[p]rintouts
from the internet constitute inadmissible hearsay." Bradac at ¶ 21, citing State v. Kinder,
6th Dist. No. WD-09-086, 2010-Ohio-5173. However, where it is established the website
at issue belongs to a party opponent, the statements contained in the website may be non-
hearsay under Evid.R. 801(D)(2). Lorraine at 567-68. In this instance, Graff's affidavit
contains no facts or other information on which it can be inferred the screen shot attached
as Exhibit 2 is a true and accurate copy of information contained on Ocwen's website.
Accordingly, the information is inadmissible hearsay for which no exception applies.
Kinder; Lorraine.2
2Though appellants argue Ocwen waived the hearsay argument by failing to raise it in the trial court, we note
that Ocwen's March 27, 2017 brief in opposition to appellants' motion for summary judgment states at page
6:
Defendant attested that the business located at Springfield, Ohio is a branch office but
provides no actual knowledge of this aside from a website printout that states no such thing.
First, the printout is inadmissible hearsay evidence for which Defendant has not even
attempted to argue an exception and, therefore, cannot authenticate. Second, he has no
actual knowledge as to what the Springfield, Ohio location is. Defendant has made no
argument that it is staffed by Plaintiffs personnel who can help him with his mortgage much
less provide evidence of the same. As such, his argument that Plaintiff has a branch office
within 200 miles should not be considered.
Ocwen makes the same argument regarding the admissibility of Graf's affidavit in its reply brief in support of
summary judgment at page 7.
No. 17AP-361 15
{¶ 39} Appellants' only remaining defense to Ocwen's claims in this case is
appellants' assertion that Ocwen failed to comply with the requirements of 24 C.F.R.
203.604(b) prior to commencing the foreclosure action. Pursuant to 24 C.F.R. 203.604(b),
Ocwen is exempt from the face-to-face meeting requirement if the mortgaged property is
not within 200 miles of the mortgagee, its servicer, or a branch office of either. Ocwen
produced evidence in support of its motion for summary judgment establishing the absence
of a genuine issue of material fact as to the dispositive issue. Rosenthal's affidavit provides
"the mortgaged property is not within 200 miles of the mortgagee, its servicer or a branch
office of either." (Rosenthal Aff. at ¶ 14.) Graf's affidavit does not contain admissible
evidence to rebut Ocwen's evidence, and it is legally insufficient to create a genuine issue of
fact for trial. Accordingly, the record supports the trial court's judgment in this case.
{¶ 40} We note that in ruling on the cross-motions for summary judgment, the trial
court considered Graf's affidavit without specifically ruling on Ocwen's objections to the
admissibility of his averments regarding the Springfield branch office. The trial court held
Graf's affidavit did not contain facts which would permit a reasonable inference the
purported Ocwen office referenced in the screen shot performs loan originating or loan
servicing functions. The trial court determined Graf's affidavit proved only that Ocwen may
have a Springfield branch office dedicated to processing insurance claims. Accordingly, the
trial court determined, pursuant to Dumm, Graf's affidavit was insufficient to rebut
Ocwen's evidence the mortgaged property was not within 200 miles of an Ocwen branch
office.
{¶ 41} In Dumm, the Fourth District Court of Appeals determined the face-to-face
meeting requirement of 24 C.F.R. 203.604(b) does not apply unless the mortgaged
property is within 200 miles of the mortgagee, its servicer, or a branch office of either that
is staffed with personnel qualified to have the "face-to-face" meeting contemplated in the
regulation. Id. at ¶ 34-36. Relying on Dumm, the trial court found Graf's affidavit failed to
create an issue of fact whether the Springfield location performed loan originating or loan
servicing functions, and Ocwen was entitled to judgment as a matter of law. In the trial
court and in this appeal, appellants have argued other appellate court decisions have held
the term "branch office" for purposes of 24 C.F.R. 203.604(c) is not limited to offices that
perform loan origination or loan servicing functions. See, e.g., Wells Fargo, N.A. v. Isaacs,
No. 17AP-361 16
1st Dist. No. C-100111, 2010-Ohio-5811, ¶ 10; Phillabaum at ¶ 14; HSBC Bank USA v.
Teagarden, 11th Dist. No. 2012-T-0091, 2013-Ohio-5816, ¶ 61.
{¶ 42} This court has not weighed in on the question whether the term "branch
office," for purposes of 24 C.F.R. 203.604(c), is limited to a branch office that performs loan
origination or loan servicing functions. However, because we find appellants produced no
admissible evidence in opposition to Ocwen's properly supported motion for summary
judgment to create an issue of fact whether the mortgaged property is within 200 miles of
any Ocwen branch office, regardless of the function performed at that office, we need not
address appellants' alternative argument in order to affirm the trial court.
{¶ 43} For the foregoing reasons, we hold the trial court did not err when it granted
summary judgment in favor of Ocwen, albeit for a different reason than the trial court.
Because appellants' cross-motion for summary judgment argues that issues of fact exist
regarding Ocwen's compliance with 24 C.F.R. 203.604(b), we hold the trial court did not
err when it denied appellants' cross-motion for summary judgment. Appellants' sole
assignment of error is overruled.
V. CONCLUSION
{¶ 44} Having overruled appellants' sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN, P.J., and LUPER SCHUSTER, J., concur.
_____________________