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Bank of New York Mellon v. Primes

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 10, 2018


          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-838851

          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.


          MELODY J. STEWART, P.J.

         {¶1} 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 on appeal.

         I. Personal Knowledge

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 Loan Servicing.

         {¶5} 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."

         {¶6} 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 ...

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