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The Huntington National Bank v. Kopnisky

Court of Appeals of Ohio, Seventh District, Mahoning

February 14, 2017

THE HUNTINGTON NATIONAL BANK, PLAINTIFF-APPELLEE,
v.
DENNIS G. KOPNISKY, et al., DEFENDANTS-APPELLANTS.

         Civil Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 15 CV 331

         Affirmed

          For Plaintiff-Appellee Attorney Eric T. Deighton

          For Defendants-Appellants Attorney Bruce M. Broyles

          JUDGES: Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Carol Ann Robb

          OPINION

          DONOFRIO, J.

         {¶1} 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 Court.

         {¶2} 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).

         {¶3} On the same day, August 12, 2005, Appellants signed a mortgage to secure the note in favor of the lender, Sky Bank.

         {¶4} Sky Bank was acquired by Plaintiff-appellee, Huntington National Bank, on September 21, 2007.

         {¶5} On January 13, 2010, Appellants signed a Loan Modification Agreement with Huntington. Exhibit C.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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 ...


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