Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from Court of Common Pleas of Mahoning County, Ohio
Case No. 15 CV 331
Plaintiff-Appellee Attorney Eric T. Deighton
Defendants-Appellants Attorney Bruce M. Broyles
JUDGES: Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Carol
Defendants-appellants, Dennis and Sonya Kopnisky, appeal the
summary judgment entered against them and the decree of
foreclosure entered by the Mahoning County Common Pleas
On August 12, 2005, Appellants signed a note promising to pay
Sky Bank, the lender, $78, 000.00. Monthly payments were due
on the first day of each month. Exhibit B, ¶ 3. Failure
to pay the amounts when due would put Appellants in default.
The note provides that if Appellants are in default, the
holder of the note may send a written notice telling
Appellants that they are in default and if payments are not
made by a date certain, the holder of the note may require
Appellants to immediately pay the full amount owed. The note
provides that the date by which payment would have to be made
"must be at least 30 days after the date on which the
notice is mailed * * * or delivered by other means."
Exhibit B ¶ 6(C).
On the same day, August 12, 2005, Appellants signed a
mortgage to secure the note in favor of the lender, Sky Bank.
Sky Bank was acquired by Plaintiff-appellee, Huntington
National Bank, on September 21, 2007.
On January 13, 2010, Appellants signed a Loan Modification
Agreement with Huntington. Exhibit C.
On November 9, 2014, Huntington mailed a Notice of Intention
to Accelerate and Foreclose, dated November 4, 2014, to
Appellants stating that they were in default and that the
full amount due of $5, 005.32 had to be paid by December 9,
2014, or their mortgage would be accelerated which meant they
would have to repay the balance due in full, and foreclosure
might be initiated. The Notice was received by Appellants on
November 10, 2014.
On February 5, 2015, Huntington filed a complaint based upon
the note and the mortgage. Since no answer was filed, on
March 23, 2015, Huntington filed a motion for default
judgment. On March 24, 2015, Appellants filed a motion for
leave to file an answer instanter. The trial court granted
their motion on the same day. In addition to generally
denying the allegations in the complaint, Appellants asserted
affirmative defenses. Appellants claimed that Huntington
failed to provide the notice of default required by paragraph
6(C) of the note, that Huntington failed to perform all
conditions precedent to accelerate the debt and foreclose
pursuant to paragraph 22 on page 13 of 14 of Form 3036, and
that Huntington did not have a valid mortgage because of
contradictory legal descriptions and because no master
mortgage document was recorded with the mortgage.
On July 16, 2015, Huntington filed a motion for summary
judgment and attached the affidavit of Robin Scott. The Scott
affidavit states that Robin Scott is an authorized signer for
Huntington, which is the successor by merger to Sky Bank as
demonstrated by the National Information Center report
attached to the affidavit as Exhibit A. The Scott affidavit
provides that Huntington maintains physical loan files and
computer databases associated with each of its loans. Scott
states that the material in those files is placed there by a
person with knowledge and in the normal course of business.
Scott attested in her affidavit that she has access to the
loan files and reviewed the files relative to the pending
matter. She states that she has personal knowledge of the
business records described in her affidavit and of the
contents of those records. Scott states that the documents
attached to her affidavit are true and accurate copies of the
records. Attached to the affidavit are the note (Exhibit B),
loan modification agreement (Exhibit C), the mortgage
(Exhibit D), and the Master Mortgage separately recorded in
Mahoning County (Exhibit E). Scott states ...