HSBC Bank USA, National Association, As Trustee for Citigroup Mortgage Loan, Trust Inc., Asset Backed Pass Through Certificates Series 2003-HE4 Plaintiff-Appellee,
Graydon D. Webb et al., Defendants-Appellants.
from the Franklin County Court of Common Pleas No. 15CV-10696
Thompson Hine LLP, Scott A. King, and Terry W. Posey, Jr.,
Dann Law Firm, Emily C. White, Brian D. Flick, and Marc E.
Dann, for appellants.
W. Posey, Jr.
1} Defendants-appellants, Graydon Webb and Terri
Webb, appeal an entry and foreclosure decree issued on
November 9, 2016 by the Franklin County Court of Common Pleas
in favor of plaintiff-appellee, HSBC Bank USA, National
Association, as Trustee for Citigroup Mortgage Loan Trust
Inc., Asset Backed Pass Through Certificates Series 2003-HE4
("HSBC"). Because the paragraphs in the supporting
affidavit that address the principal and interest due on the
note must be stricken for failure to comply with Civ.R.
56(E), HSBC failed to establish all the requirements for
summary judgment in a foreclosure action. Therefore, we
sustain the Webbs' assignment of error, reverse the
judgment of the trial court, and remand for proceedings
consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
2} On December 1, 2015, HSBC sued the Webbs and
other defendants not relevant to this appeal. (Dec. 1, 2015
Compl.) The complaint sought to obtain judgment on the
outstanding balance of a note signed by the Webbs and to
foreclose, pursuant to a mortgage, on residential real estate
located at 4815 Stonehaven Drive, Columbus, Ohio 43220.
Id. On December 21, 2015, the Webbs answered denying
every allegation in the complaint for lack of knowledge.
(Dec. 21, 2015 Answer); Civ.R. 8(B).
3} Approximately four months later, on April 27,
2016, HSBC moved for summary judgment. (Apr. 27, 2016 Mot.
for Summ. Jgmt.) In support of its motion, HSBC attached an
affidavit from Cynthia Thomas, an employee of Wells Fargo,
N.A., which was the servicing agent of HSBC in this case.
(Apr. 27, 2016 Thomas Aff.) The affidavit was accompanied by
documents purporting to be copies of the note (with
allonges), the mortgage, several transfers, several
modifications, and a delinquency notice. (Exs. A-H attached
to Thomas Aff.) Notably, HSBC failed to attach any documents
that substantiated Thomas' assertions regarding the
amount of principal and interest due on the note. The Webbs
opposed summary judgment by filing a motion to strike
Thomas' affidavit in which they argued that the affidavit
was not based on Thomas' personal knowledge, did not
authenticate or provide a sufficient foundation to
authenticate the exhibits to it, and did not attach
documentary evidence of the delinquency. (May 9, 2016 Mot. to
Strike.) The Webbs also filed a response in opposition to
summary judgment arguing the same alleged deficiencies in
Thomas' affidavit as were highlighted in their motion to
strike. (May 9, 2016 Resp. in Opp. to Summ. Jgmt.)
4} On November 9, 2016, the trial court
denied the Webbs' motion to strike and granted HSBC's
motion for summary judgment. (Nov. 9, 2016 Entry
& Decree.) Essentially, the trial court found that
"the affidavit of Ms. Thomas contain[ed] the proper
foundation, authenticate[d] the documents attached thereto,
establishe[d] that Plaintiff [wa]s in possession of the
subject note, and establishe[d] the default and balance due
on the note." Id. at 2. The trial court then
noted that "[o]ther than their arguments related to the
sufficiency of Plaintiffs supporting affidavit, " the
Webbs had "not presented any Civ.R. 56 evidence to
indicate they [we]re not in default of the subject note or
that the amount alleged due on the note [wa]s
incorrect." Id. The trial court entered
judgment against the Webbs jointly and severally for $790,
528.49 and ordered foreclosure of the subject property.
Id. at 3-4.
5} The Webbs now appeal.
ASSIGNMENT OF ERROR
6} The Webbs set forth a ...