Court of Appeals of Ohio, Seventh District, Mahoning
PNC MORTGAGE, A DIVISION OF PNC BANK, NATIONAL ASSOCIATION, PLAINTIFF-APPELLEE,
FRANK J. KRYNICKI, ET AL., DEFENDANTS-APPELLANT.
Appeal from Court of Common Pleas of Mahoning County, Ohio
Case No. 2014 CV 00741
Plaintiff-Appellee Attorney Matthew W. Faber Attorney Joshua
Defendants-Appellant Attorney Bruce M. Broyles
JUDGES: Hon. Gene Donofrio Hon. Mary DeGenaro Hon. Carol Ann
Defendant-appellant, Frank J. Krynicki, appeals the judgment
of the Mahoning County Common Pleas Court granting summary
judgment against him.
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
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.
On September 29, 2015, the trial court filed a judgment entry
which, inter alia, granted summary judgment to Appellee.
Appellant filed a timely appeal.
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.
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.
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 ...