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HSBC Bank USA v. Webb

Court of Appeals of Ohio, Tenth District

December 28, 2017

HSBC Bank USA, National Association, As Trustee for Citigroup Mortgage Loan, Trust Inc., Asset Backed Pass Through Certificates Series 2003-HE4 Plaintiff-Appellee,
v.
Graydon D. Webb et al., Defendants-Appellants.

         APPEAL from the Franklin County Court of Common Pleas No. 15CV-10696

         On brief:

          Thompson Hine LLP, Scott A. King, and Terry W. Posey, Jr., for appellee.

          The Dann Law Firm, Emily C. White, Brian D. Flick, and Marc E. Dann, for appellants.

         Argued:

          Terry W. Posey, Jr.

          Emily C. White.

          DECISION

          KLATT, J.

         {¶ 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.

         I. 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.

         II. ASSIGNMENT OF ERROR

         {¶ 6} The Webbs set forth a ...


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