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PNC Mortgage v. Krynicki

Court of Appeals of Ohio, Seventh District, Mahoning

March 1, 2017

PNC MORTGAGE, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION, PLAINTIFF-APPELLEE,
v.
FRANK J. KRYNICKI, ET AL., DEFENDANTS-APPELLANT.

         Civil Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 2014 CV 00741

          For Plaintiff-Appellee Attorney Matthew W. Faber Attorney Joshua J. Epling

          For Defendants-Appellant Attorney Bruce M. Broyles

          JUDGES: Hon. Gene Donofrio Hon. Mary DeGenaro Hon. Carol Ann Robb

          OPINION

          DONOFRIO, J.

         {¶1} Defendant-appellant, Frank J. Krynicki, appeals the judgment of the Mahoning County Common Pleas Court granting summary judgment against him.

         {¶2} On March 20, 2014, PNC Mortgage, A Division of PNC Bank, National Division, filed a complaint in foreclosure against Appellant and others. U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust, was substituted as Plaintiff-appellee on April 22, 2015. Appellee asserts that it is the holder of a promissory note and a mortgage deed executed by Appellant. Appellee claims that Appellant breached the terms of the promissory note and the mortgage, that Appellant is in default, that Appellee is entitled to foreclose and to have the property sold, and that all conditions precedent have been satisfied. Attached to the complaint are copies of a note and an open-end mortgage. On September 23, 2014, Appellant filed an answer which includes general denials of the allegations in the complaint and affirmative defenses alleging that Appellee failed to meet certain conditions precedent included in the note and mortgage.

         {¶3} On April 21, 2015, Appellee filed a motion for summary judgment. Attached to Appellee's motion is the Affidavit of Status of Account signed by Alyssa Salyers. The affidavit states that Salyers is a "Foreclosure Document Specialist II" of Caliber Home Loans, Inc. and that Caliber is the loan servicing agent of Appellee. Attached to the affidavit as Exhibits A, B, and C, respectively, are copies of the note, open-end mortgage, and PNC Mortgage letter to Appellant dated January 3, 2014 notifying Appellant that he is in default. Salyers also states that Appellant is in default as he has not made the required monthly payments. On June 8, 2015, Appellant filed a motion for additional time to provide an affidavit in opposition to Appellee's motion; a motion to strike the Salyers affidavit and objection to the court's consideration of the affidavit; and a memorandum in opposition to Appellee's motion for summary judgment. On June 22, 2015, Appellee filed a reply to Appellant's motion to strike and a motion to strike Appellant's memorandum or, alternatively, for an extension of time to file a response. Appellant filed his affidavit on July 31, 2015.

         {¶4} On September 29, 2015, the trial court filed a judgment entry which, inter alia, granted summary judgment to Appellee.

         {¶5} Appellant filed a timely appeal.

         {¶6} Appellant's first assignment of error states:

The trial court erred in failing to strike the affidavit of Alyssa Salyers as she was not a qualified witness capable of authenticating the business records of PNC.

         {¶7} An appellate court reviews the granting of summary judgment de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Thus, we shall apply the same test as the trial court in determining whether summary judgment was proper.

         {¶8} A court may grant summary judgment only when (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) the evidence can only produce a finding that is contrary to the non-moving party. Mercer v. Halmbacher, 9th Dist. No. 27799, 2015-Ohio-4167, ¶ 8; Civ.R. 56(C). The initial burden is on the party moving for summary judgment to demonstrate the absence of a genuine issue of material fact as to the essential elements of the case with evidence of the type listed in Civ.R 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107, 662 N.E.2d 264. If the moving party meets its burden, the burden shifts to the non-moving party to set forth specific facts to show that there is a genuine issue of material fact. Id.; Civ.R 56(E). "Trial courts should award ...


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