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U.S. Bank Trust, N.A. v. Edmon

Court of Appeals of Ohio, Sixth District, Erie

July 27, 2018

U.S. Bank Trust, N.A., as Trustee for LSF8 Master Participation Trust Appellee
v.
Dannie Edmon, et al. Appellant

          Trial Court No. 2015 CV 0819

          Daniel A. Friedlander, for appellee.

          Geoffrey L. Oglesby, for appellant.

          DECISION AND JUDGMENT

          SINGER, J.

         {¶ 1} Appellant, Dannie Edmon, appeals the August 17, 2017 summary judgment of the Erie County Court of Common Pleas granted in favor of appellee, U.S. Bank, National Association. For the reasons that follow, we affirm.

         Assignments of Error

         {¶ 2} Appellant sets forth the following assignments of error:

I. The court erred in allowing the plaintiff an extension in time to supplement its motion for summary judgment.
II. The court erred when it denied the motion to dismiss finding the plaintiff had standing to sue.
III. The court erred in granting summary judgment when the facts were not rehabilitated from the former appellate issue regarding the firsthand knowledge.
IV. The court erred in considering items found only in the reply brief in deciding the motion for summary judgment.

         Background

         {¶ 3} Appellant executed a promissory note and mortgage and secured a $155, 000 loan from Accredited Home Lenders, Inc. in November of 2005. The note and mortgage were transferred to HSBC Mortgage Services, Inc. in February of 2010.

         {¶ 4} Appellant defaulted on the loan, and HSBC filed a complaint to foreclose in March of 2010. See HSBC Mtge. Servs., Inc. v. Edmon, 6th Dist. Erie No. E-11-046, 2012-Ohio-4990, ¶ 2. Attached to the complaint were copies of the note, the mortgage, and a mortgage assignment. On November 24, 2010, HSBC moved for summary judgment, and attached to the motion was an affidavit from an HSBC employee. The contents of the affidavit were summarized as follows:

(1) [The affiant] is an employee of HSBC in the capacity of a loan servicing agent, (2) HSBC is the "owner in possession" of the promissory note and mortgage, "true and accurate copies of which were attached to [HSBC's] Complaint as Exhibits thereto," (3) HSBC acquired the note on February 1, 2010, prior to the execution of the mortgage assignment, (4)HSBC has exercised the option contained in the "mortgage note," and (5)[The affiant-employee] has personal knowledge of Edmon's account, the account is under her supervision, and Edmon is in default on the note ...

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