Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANTS Marc E. Dann William C. Behrens The
Dann Law Firm, Co., L.P.A.
ATTORNEYS FOR APPELLEE Brooke D. Turner-Bautista Stefanie
Deka McGlinchey Stafford, P.L.L.C Justin M. Ritch Manley,
Deas & Kochalski, L.L.C.
BEFORE: Stewart, P.J., Blackmon, J., and Jones, J.
JOURNAL ENTRY AND OPINION
J. STEWART, P.J.
The Bank of New York Mellon brought this action on a
promissory note along with a demand to foreclose on real
property owned by defendants-appellants Marvin and Vicky
Primes. The court approved a magistrate's decision
granting summary judgment on the note and foreclosure,
overruling the Primeses' objections that (1) an affidavit
offered by the bank to prove its standing to enforce the note
had not been made on personal knowledge, and (2) that the
magistrate erred by finding that the Primeses lacked standing
to challenge the transfer of the mortgage from the original
mortgagee to the bank. The Primeses raise these same issues
The bank supported its motion for summary judgment by
appending the affidavit of a loan analyst for the company
that serviced the Primeses' loan. The affidavit stated
that a copy of the note appended to the motion was a true and
accurate copy of the note. Despite the loan analyst stating
that he "personally reviewed" documents, including
the promissory note, the Primeses maintain that the analyst
could not have personal knowledge of the note because he
worked for the parent company of the loan servicing company.
An affidavit submitted in support of a motion for summary
judgment must be made on "personal knowledge."
"Personal knowledge" in this context means
"knowledge gained through firsthand observation or
experience, as distinguished from a belief based upon what
someone else has said." Bonacorsi v. Wheeling &
Lake Erie Ry. Co., 95 Ohio St.3d 314,
2002-Ohio-2220, 767 N.E.2d 707.
Where an affiant indicates that he or she is an employee of
the bank, his or her job duties include the supervision of
the loan, he or she has personal knowledge of the loan, and
he or she is the records custodian of the records relating to
the mortgage and line of credit at issue, the affidavit
complies with Civ.R. 56(E).
Bayview Loan Servicing, L.L.C. v. St Cyr, 8th Dist.
Cuyahoga No. 104655, 2017-Ohio-2758, ¶ 32.
The affiant stated that he is employed as a loan analyst for
Ocwen Financial Corporation, whose "indirect subsidiary
is Ocwen Loan Servicing, L.L.C." He stated that Ocwen
Loan Servicing is the "servicer and
attorney-in-fact" for the bank and maintains the records
of the Primeses' loan that he examined when preparing the
affidavit. The Primeses argue that a question of fact exists
as to whether the loan analyst, as an employee of Ocwen
Financial, had personal knowledge of the records of Ocwen
No question of fact exists. The loan analyst stated both that
he was a loan analyst at Ocwen Financial and that he was
"a Loan Analyst for Ocwen Loan." As the nonmoving
party, the Primeses were required to offer evidence
to rebut the loan analyst's assertions, not just mere
denials. See Civ.R. 56(E) ("When a motion for
summary judgment is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations
or denials of the party's pleadings, but the party's
response, by affidavit or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine
issue for trial."). The Primeses offer no evidence in
rebuttal, but argue that the loan analyst's statements
about working for both Ocwen Financial and Ocwen Loan
Servicing were "self-rebutting."
There is nothing so inherently contradictory about the loan
analyst's statements that they create a question of fact.
It is possible that the corporate structure of the two
entities was such that the loan analyst worked for both Ocwen
Financial and Ocwen Loan Servicing. And even if the loan
analyst did not actually work for Ocwen Loan Servicing, the
nature of the subsidiary relationship between Ocwen Loan
Servicing and Ocwen Financial could be close enough that the
loan analyst could truthfully state that he has
"personal knowledge of Ocwen Loan's procedures for
creating and maintaining these records[, ]" and that he
"personally reviewed" the loan records, including
the promissory note. The Primeses could not merely assert a
denial - they had the ...