author: HALL, J.

text:
    OCWEN LOAN SERVICING, LLC, Plaintiff-Appellee v. Ronald K. MALISH, et al., Defendants-Appellants
    No. 27532
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered March 23, 2018
    KIMBERLY Y. SMITH-RIVERA, Atty. Reg. No. 0066849, and STEFANIE L. DEKA, Atty. Reg. No. 0089248, 25550 Chagrin Boulevard, Suite 406, Cleveland, OH 44122, Attorneys for Plaintiff-Appellee
    ANDREW M. ENGEL, Atty. Reg. No. 0047371, 7925 Paragon Road, Dayton, Ohio 45459, Attorney for Defendants-Appellants
   HALL, J.

{¶ 1} Ronald and Janis Malish appeal from a summary judgment of foreclosure rendered for Ocwen Loan Servicing, LLC. We find no error, so we affirm.

I. Background

{¶ 2} The Malishes executed a promissory note in 2006 in favor of GMAC Mortgage, LLC f/k/a GMAC Mortgage Corporation for $231,647, secured by a mortgage on their residential property. Later, the Malishes and GMAC entered into a loan modification agreement. In 2013, the mortgage was assigned to Ocwen.

{¶ 3} Ocwen filed a complaint in foreclosure against the Malishes in 2016, alleging that they had defaulted on the note and owed $246,349.54, plus interest, late fees, advances, and various expenditures recoverable under the note and mortgage. Ocwen then moved for summary judgment. Attached to its summary-judgment motion is an affidavit from loan analyst, Crystal Kearse. The affidavit states that when Ocwen took over the Malishes' loan, it acquired GMAC's loan records and incorporated them into its own records. The affidavit states that Ocwen relies on those GMAC records. Attached to the affidavit are the note and mortgage, the mortgage assignments, the loan modification agreement, a notice of default, a mortgage statement, Ocwen's payment history, GMAC's payment history, and GMAC's comment logs. The affidavit states that in August 2015 Ocwen sent the Malishes the notice of default by certified mail. Thereafter, states the affidavit, the Malishes failed to cure the default, the loan was accelerated, and the unpaid balance is $246,349.54 plus interest, late charges, and advances for real estate taxes, hazard insurance premiums, and property protection, as well as costs and expenses allowed by law. The Malishes moved to strike the payment histories and the related averments from Ocwen's affidavit. The trial court did not rule on the motion.

{¶ 4} The Malishes opposed summary judgment with an affidavit from Ronald Malish. Malish avers that he never received the notice of default and never signed for the certified mail. He attached to his affidavit a printout from the United States Postal Service's website that shows the tracking information for the certified mail sent by Ocwen. Malish further avers that the monthly amounts Ocwen demanded they pay were higher than the monthly amount stated in the loan modification agreement. Malish also avers that Ocwen representatives told him that he was paying too much and that his payments were being misapplied to the loan.

{¶ 5} The trial court entered a judgment of foreclosure for Ocwen. The Malishes appealed. We determined that the judgment entry is not a final, appealable order because it fails to state the amount of the liens held by the Ohio Department of Taxation. On remand, on March 14, 2017, the trial court entered an amended judgment entry.

{¶ 6} The Malishes appealed from the amended judgment, and that appeal is now before us.

II. Analysis

{¶ 7} The Malishes present two assignments of error. The first argues that the trial court should not have overruled their motion to strike portions of Ocwen's affidavit. And the second assignment of error argues that the court should not have entered summary judgment for Ocwen.

A. The Amended Judgment Entry is a final, appealable order.

{¶ 8} One of the Malishes' contentions in the second assignment of error is that the amended judgment entry is not a final, appealable order. Because this is a jurisdictional issue, we address it first.

{¶ 9} The Malishes argue that the damage award in the amended judgment entry-the foreclosure order-is not specific enough. The order pertinently states: "The Court further finds that based on the evidence, Ocwen is due on the promissory note the amount of $246,349.54 plus interest on the outstanding principal amount at the rate of 2.0% per annum, subject to adjustment, from April 1, 2015, plus late charges and advances and all costs and expenses incurred for the enforcement of the Note and Mortgage except to the extent the payment is prohibited by Ohio law , for which sum judgment is hereby rendered in favor of Ocwen." (Emphasis added.). The Malishes say that the italicized language prevents the foreclosure order from being final and appealable, for three reasons. First, "costs and expenses" are not defined. Second, say the Malishes, no specific amount is awarded for costs and expenses. And third, the order does not say which costs and expenses are lawful.

{¶ 10} The Ohio Supreme Court said in CitiMortgage, Inc. v. Roznowski , 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, that "for a judgment decree in foreclosure to constitute a final order, it must address the rights of all lienholders and the responsibilities of the mortgagor." Roznowski at ¶ 20. A foreclosure judgment does this if it "forecloses on the mortgage, sets forth the principal sum and interest accrued on the note, and lists the categories for future expenses for which the [mortgagors] will be liable." Id. at ¶ 22.

Although the focus in Roznowski is a foreclosure judgment that awards unspecified amounts advanced by the mortgagee, the Court's rationale applies equally to an award of costs and expenses incurred to enforce a note and mortgage. It is enough that "all damages for which the [mortgagors] are responsible are established, and only the amount is subject to clarification." Id.

{¶ 11} As the Court explained, the foreclosure order is one of two judgments that is appealable in a foreclosure action. The later order of confirmation of sale may also be appealed. "A mortgagor that contests amounts expended by a mortgagee for inspections, appraisals, property protection, and maintenance may challenge those amounts as part of the proceedings to confirm the foreclosure sale and may appeal the order of confirmation." Id. at ¶ 35. The same is true of enforcement expenditures. A mortgagor may challenge the inclusion of particular expenditures-whether because an expenditure is invalid or unlawful-and the amounts awarded.

{¶ 12} We note that the note and mortgage here allow Ocwen to recover those "costs and expenses incurred for the enforcement of the Note and Mortgage." Paragraph 6(E) of the note, "Payment of Note Holder's Costs and Expenses," states: "If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law." And paragraph 9 of the mortgage, "Protection of Lender's Interest in the Property and Rights Under this Security Instrument," states that "[a]ny amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower secured by this Security Interest." The paragraph states that these amounts may include "whatever is reasonable or appropriate to protect Lender's interest in the Property and rights under this Security Instrument," which can include "appearing in court." Ocwen will be awarded enforcement costs and expenses in the confirmation-of-sale order. At that time, the Malishes will have an opportunity to challenge the award and raise the issues they raise here.

{¶ 13} As it is, none of the issues they raise prevent the amended judgment entry from being final and appealable.

B. The trial court properly overruled the Malishes' motion to strike Ocwen's affidavit.

{¶ 14} The first assignment of error alleges that the trial court erred by overruling the Malishes' motion to strike GMAC's payment history and Ocwen's payment history and the related averments from Ocwen's affidavit supporting its summary-judgment motion. The Malishes argue that the affidavit does not properly authenticate the GMAC payment history and that Ocwen's payment history contains hearsay.

{¶ 15} The trial court did not expressly rule on the motion to strike. But in its decision, the court relied on the payment histories to find that Ocwen met its summary-judgment burden. So the court, by granting summary judgment, implicitly overruled the Malishes' motion to strike. The question is whether it erred by doing so.

{¶ 16} "Authentication of business records is governed by Evid.R. 803(6), the hearsay exception for business records." U.S. Bank, N.A. v. Christmas , 2d Dist. Montgomery No. 26695, 2016-Ohio-236, 2016 WL 362994, ¶ 16, vacated on other grounds , 146 Ohio St.3d 1468, 2016-Ohio-5108, 54 N.E.3d 1267, citing Great Seneca Financial v. Felty , 170 Ohio App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶ 9 (1st Dist.). The exception states that, even though it contains hearsay, a business record is admissible if it satisfies these requirements:

A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. * * *

To satisfy the authentication requirement in the business-records exception, "the testifying witness must possess a working knowledge of the specific record-keeping system that produced the document * * * [and] 'be able to vouch from personal knowledge of the record-keeping system that such records were kept in the regular course of business.' " State v. Davis , 62 Ohio St.3d 326, 343, 581 N.E.2d 1362 (1991), quoting Dell Publishing Co., Inc. v. Whedon , 577 F.Supp. 1459, 1464, fn. 5 (S.D.N.Y.1984).

{¶ 17} The Malishes argue that Ocwen failed to satisfy the authentication requirement as to the GMAC payment history. They say that neither Ocwen's affidavit nor any other evidence sufficiently establishes the manner in which GMAC prepared or kept its payment-history records.

{¶ 18} At issue here is the rule for admitting adopted business records, that is, records that were created by a third party, here GMAC, a predecessor in interest, that have been incorporated into the business records of the assignee, here Ocwen, who seeks admission.

{¶ 19} The Malishes rely on this Court's decision in Ohio Receivables, L.L.C. v. Williams , 2d Dist. Montgomery No. 25427, 2013-Ohio-960, 2013 WL 1092258, to support their argument that Ocwen failed to satisfy the authentication requirement. In Williams , this Court addressed the issue of adoptive business records in the context of credit-card debt. In that case, the bank "charged off" the outstanding balance on the defendant-appellant's credit card by selling the account, along with hundreds of other accounts. The purchasing company in turn sold the account, along with hundreds of others, to the plaintiff-appellee. The plaintiff then filed suit against the defendant in an attempt to collect the debt. The plaintiff moved for summary judgment, supporting its motion with affidavits from its agents regarding the assignments of the defendant's debt and the amount owed. The trial court sustained the motion, and the defendant appealed.

{¶ 20} The defendant had opposed summary judgment in part on the grounds that the plaintiff's supporting affidavits were not based on personal knowledge, that "personal knowledge gained from a review of business records, without the presentation of evidence about the creation of those records, was insufficient," and that the plaintiff's " 'mere acquisition' of documents from other companies did not make those documents business records of [the plaintiff] within the meaning of the business records exception to the hearsay rule." Williams at ¶ 4. The plaintiff filed a reply to which it attached additional affidavits, from employees of the bank and the first purchaser of the defendant's debt.

{¶ 21} After reviewing the plaintiff's supporting affidavits, we concluded that the documents attached to the affidavits were not properly authenticated. We said that employees of the plaintiff could not attest to the facts that the contract documents between the defendant and the bank reflected the terms of the credit-card agreement, the documents were made at or near the time that the account was opened by someone with knowledge of that transaction, or the billing statements and spreadsheets were generated in the regular course of the bank's business. In the absence of first-hand knowledge of the transaction at issue, we said, the plaintiff had to prove by some other means that the documents on which it relied were business records of the bank. That is, the plaintiff had to prove that the documents were first business records created and maintained by the bank in the course of its (the bank's) regularly conducted business. We concluded that the plaintiff's affidavits stating that the documents were received from the bank as part of the series of purchases of the defendant's account were insufficient to prove this fact.

{¶ 22} One of the arguments made by the plaintiff in Williams was that the bank's records were admissible as business records because the plaintiff had incorporated and relied on them in its own business dealings, citing Air Land Forwarders, Inc. v. United States , 172 F.3d 1338 (Fed.Cir.1999). We noted that the court in Air Land Forwarders held that repair estimates produced by third parties and submitted by military service members in support of claims for loss and damage to property were "business records" of the military and fell within the hearsay-rule exception. This holding, we said, was based on the fact that the business incorporating the third-party records relied on the accuracy of the records and that there were other circumstances indicating the records' trustworthiness. But "[w]e have no such circumstances in this case," we said. Williams at ¶ 29. We also said that it did not appear that the plaintiff relied on the bank's records in its business, "except to the extent that it uses them as a basis for this and other lawsuits." Id. The plaintiff's "business endeavor is merely to collect on the debt, not to receive or process payments, send bills, record charges, and the like." Id. Ultimately, in Williams the plaintiff debt collector received the history records from the bank solely for the purpose to collect the debt and not to operate an ongoing business of debt service.

{¶ 23} The rule for admitting adopted business records that we applied in Williams does not apply here. This is also a mortgage-foreclosure case not a debt-collection case. And in mortgage-foreclosure cases, we have applied a different rule: "a court may admit a document as a business record even when the proffering party is not the maker of the document, if the other requirements of Evid.R. 803(6) are met and the circumstances suggest that the record is trustworthy." U.S. Bank, N.A. v. Christmas , 2d Dist. Montgomery No. 26695, 2016-Ohio-236, 2016 WL 362994, ¶ 18, vacated on other grounds , 146 Ohio St.3d 1468, 2016-Ohio-5108, 54 N.E.3d 1267, citing Great Seneca Financial v. Felty , 170 Ohio App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶ 14 (1st Dist.) ; Secy. of Veterans Affairs v. Leonhardt , 2015-Ohio-931, 29 N.E.3d 1, ¶ 57 (3d Dist.) ; State Farm Mut. Auto. Ins. Co. v. Anders , 197 Ohio App.3d 22, 2012-Ohio-824, 965 N.E.2d 1056, ¶ 24 (10th Dist.). "Trustworthiness of a record is suggested by the profferer's incorporation into its own records and reliance on it." Christmas , 2016-Ohio-236, ¶ 18, citing Leonhardt at ¶ 58. "Because 'if information is sufficiently trustworthy that a business is willing to rely on it in making business decisions, the courts should be willing to rely on that information as well.' " Id. , quoting Quill v. Albert M. Higley Co. , 2014-Ohio-5821, 26 N.E.3d 1187, ¶ 44 (5th Dist.) (referring to this as the rationale behind the business-records exception), citing 1980 Staff Note, Evid.R. 803(6).

{¶ 24} We applied this rule in U.S. Bank, N.A. v. Christmas , a case in which the defendants argued that the third-party business records attached to the plaintiff's affidavit were improperly authenticated because the affiant did not know anything about the circumstances in which the prior servicer of the mortgage created them. We concluded that the records were admissible under Evid.R. 803(6). The affiant stated that she had personal knowledge of the current servicer's record-keeping system and that the records attached to the affidavit were kept in the regular course of the servicer's business. Although the affiant did not explicitly state that the records were incorporated into the servicer's own records, we said that the fact that the records were in the servicer's records was sufficient to show incorporation, as the defendants submitted no evidence to the contrary. We noted too that the servicer plainly relied on the incorporated records in its business of servicing loans. And we saw nothing that indicated that the source of the information in the records or the method or circumstances of their preparation was untrustworthy.

{¶ 25} Here, Ocwen's affidavit states that its business records, including those records relating to the Malishes' loan, were made "at or near the time by, or from information transmitted by, a person with knowledge" and that the records were "kept in the ordinary course of Ocwen's regularly conducted business activity." The affidavit further states that "Ocwen fully incorporated the business records of the prior servicer into its records" and that Ocwen "relies upon these records in the ordinary course of business." And the affidavit states that, for around ten months after it acquired the Malishes' loan, "Ocwen continued to use GMAC's servicing platform for all activity on the Malishes' account." Ocwen is in much the same business as GMAC and plainly relies on GMAC's records in its business. Ocwen is not a debt collector but a mortgage servicer. And the fact that after Ocwen began servicing the Malishes' loan it continued using GMAC's servicing platform shows an ongoing relationship between the two businesses. We see nothing that indicates that the source of the information in the records or the method or circumstances of their preparation was untrustworthy. The GMAC payment history is properly authenticated and is admissible under the business-records hearsay exception.

{¶ 26} The Malishes also argue that Ocwen's payment history is inadmissible because it contains embedded hearsay. But this argument is premised on the conclusion that the GMAC payment history is inadmissible: the Malishes say that Ocwen's payment history is based entirely on the inadmissible GMAC payment history. We have concluded that the GMAC records satisfy the business-records hearsay exception, so Ocwen's records do not present a hearsay problem.

{¶ 27} The trial court did not err by overruling the Malishes' motion to strike the payment histories attached to Ocwen's affidavit or the related averments.

{¶ 28} The first assignment of error is overruled.

C. There is no genuine issue of material fact.

{¶ 29} The second assignment of error alleges that the trial court erred by rendering summary judgment for Ocwen. The Malishes contend that there is a genuine issue as to whether Ocwen complied with all the conditions precedent to foreclosure. They also contend that there is a genuine issue as to the amount due.

{¶ 30} Appellate courts review summary-judgment awards using a de novo standard. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). "Under Civ.R. 56(C), summary judgment is proper if there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds, after construing the evidence most strongly in favor of the nonmoving party, can only conclude adversely to that party." Christmas , 2016-Ohio-236, at ¶ 9, citing Zivich v. Mentor Soccer Club, Inc. , 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998).

{¶ 31} "To properly support a motion for summary judgment in a foreclosure action, a plaintiff must present evidentiary-quality materials showing: (1) the movant is the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2) if the movant is not the original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due." JPMorgan Chase Bank, N.A. v. Chenoweth , 2d Dist. Montgomery No. 25953, 2014-Ohio-3507, 2014 WL 4049823, ¶ 20.

{¶ 32} "[T]he moving party bears the initial burden of demonstrating that there are no genuine issues of material fact concerning an essential element of the opponent's case. To accomplish this, the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment." Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). Once the moving party meets its initial burden, the nonmovant must set forth specific facts demonstrating a genuine issue for trial. Id. at 293, 662 N.E.2d 264. "In a foreclosure proceeding, when the lender moves for summary judgment, submitting an affidavit in support of its motion, and then the borrower submits an affidavit rebutting an allegation made by the lender regarding a material issue of fact, the court must view this evidence in the light most favorable to the borrower and find that there is a genuine issue of material fact." Wells Fargo Bank, N.A. v. Scott , 2d Dist. Montgomery No. 26552, 2015-Ohio-3269, 2015 WL 4873000, ¶ 15.

{¶ 33} The Malishes argue that Ocwen did not satisfy all the conditions precedent to foreclosure because it failed to give them written notice of default as required by the note and mortgage.

{¶ 34} Both the note and mortgage here require that written notice of default be given to the Malishes before Ocwen may foreclose. Ocwen's summary-judgment affidavit states that written notice of default was sent to them on August 14, 2015, at the property address via certified mail. The notice is attached to the affidavit and bears the same date and address and states that it was sent via certified mail.

{¶ 35} Ronald Malish states in his opposing affidavit that he did not receive the notice of default. In support of this statement, he attached to his affidavit a printout from the website of the United States Postal Service (USPS) that shows the tracking information for the certified mail sent by Ocwen. Citing the printout (Exhibit 1) and the notice of default (Exhibit G), Malish avers:

4. I did not receive Exhibit G by certified mail, and it was never delivered to my house. I never signed for certified mail from Ocwen at any time around August 14, 2015. I have never seen Exhibit G before.
5. When I reviewed Exhibit G, I wanted to make sure that my memory was correct and that I never received Exhibit G. I visited the United States Post Office website to check the certified mail tracking number that is listed on Exhibit G. The information on the website confirmed my memory that I never received Exhibit G, and it was never delivered to my house. I attach Exhibit 1, which is a printout from the USPS website that shows the USPS tracking for Exhibit G. It reflects that the certified mail was not delivered to me and was returned to Ocwen.

{¶ 36} The printout shows that the notice of default was sent on August 14, 2015. The post office attempted to deliver the notice to the Malishes' home on August 18 but could not because, according to the printout, "No Authorized Recipient [was] Available." So the post office left notice at the Malishes home that it had certified mail for them. The Malishes still had not claimed the default notice when the "Max Hold Time Expired" on August 24, so the post office returned the notice to Ocwen.

{¶ 37} Accordingly, the Malishes contend that the notice of default was never delivered to them like the note and mortgage require. Regarding delivery of notice, the note states:

Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above * * *.

(Note, ¶ 7). And the mortgage states:

Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means.
* * *

(Mortgage, ¶ 15).

{¶ 38} The Malishes argue that because Ocwen sent the default notice by certified mail and not first-class mail, it had to "deliver[ ]" the notice to them. They say that the post office merely leaving notice that it has certified mail did not satisfy this requirement.

{¶ 39} The Malishes rely largely on National City Mortgage Co. v. Richards , 182 Ohio App.3d 534, 2009-Ohio-2556, 913 N.E.2d 1007 (10th Dist.), to support their argument that Ocwen failed to satisfy the notice requirements. In Richards , the Tenth District held that notice of default sent by certified mail that was returned as "undelivered" did not satisfy a delivery requirement in a note and mortgage substantively identical to the requirement in the note and mortgage here. The court concluded that no presumption of delivery arose and that even if a presumption had arisen, the presumption was rebutted by the evidence that the certified mail was returned unclaimed. The court also rejected the argument that the post office's attempts to deliver the certified mail qualified as delivery. "Delivery," said the court, "presumes the giving or yielding of possession or control to another." Richards at ¶ 29. "Notification that certified mail is being held for a recipient is undeniably distinct from delivery of the certified-mail contents." Id.

{¶ 40} We conclude Richards does not apply here. Unlike the evidence in Richards , the evidence here shows that certified mail is first-class mail. The Malishes' tracking-information printout they submitted from the USPS website shows that certified mail is simply enhanced first-class mail. Under the heading "Postal Product" is stated "First-Class Mail." And beside this under the heading "Features" is stated "Certified Mail." This indicates that certified mail is basically a service that can be added-on to first-class mail. It stands to reason that a sender purchases this service if the sender wants to ensure that the first-class mail gets to the recipient. Therefore, because Ocwen sent the notice of default to the Malishes by first-class mail, the notice must be "deemed to have been given" when it was sent on August 14, 2015.

{¶ 41} We note too that the evidence suggests that the only reason that the Malishes did not actually receive the notice of default was because they failed to retrieve it from the post office. In his affidavit, Malish is careful to avoid saying that he did not receive the post office's notice that certified mail was being held. The Malishes simply ignored the notice of certified mail. This is akin to a person simply ignoring a piece of mail left in his mailbox, or not opening an unpleasant letter. This is likely why the mortgage deems undesirable mail, like a notice of default, is given when it is sent and, unlike the more formal civil rules, the mortgage terms contain no requirement of ordinary mail redelivery.

{¶ 42} The Malishes fail to show a genuine issue of fact as to whether Ocwen satisfied all conditions precedent to foreclosure.

{¶ 43} The Malishes also contend that there is a genuine issue as to the amount of principal and interest due. They contend that Ocwen demanded monthly payments higher than the monthly payment required by the loan modification agreement and failed to post the payments to their account properly.

{¶ 44} Ronald Malish states in his affidavit that under the loan modification agreement the total monthly payment was to be $1,518.66 but that Ocwen demanded more and that Ocwen failed to properly post the payments that he made:

6. I am also responsible for paying all the bills in my household. I was responsible for making the monthly mortgage payment to Ocwen. Ocwen provides a phone payment system which I used to make all my mortgage payments. I personally made all the payments and attach a record of those payments as Exhibit 2. Exhibit 2 shows all the payments I made on my home loan since June 15, 2012.
7. Ocwen charged me a fee each time I used the phone payment system. Each time I called Ocwen to make a payment, I was told how much to pay. Then I paid the exact amount given to me, plus the fee.
8. When I called Ocwen to make a payment, the amount Ocwen told me to pay kept changing, and I did not know why. When I received a loan modification in 2012, my total monthly payment was supposed to be $1,518.66, which included escrow amounts. However, as set forth in Exhibit 2, the payments I made after the modification were well in excess of that amount.
9. Around May 27, 2015, I spoke with an Ocwen representative who told me "Your problem is is [sic] that you've been overpaying."
10. On June 12, 2015, I spoke with my relationship manager at Ocwen about why my payment kept changing, the representative told me "You were making over the amount you needed to make" and told me that payments I made were being applied to principal when they should have been applied toward my regular mortgage payment.

{¶ 45} The payment-schedule table in the loan modification agreement shows that the total monthly payment (through April 1, 2017) would be $1,518.66. Of this amount, $788.71 is principal and interest and $729.95 is escrow. The payment histories attached to Ocwen's affidavit show that the total monthly payment did increase over time, and they show that the increases were in the escrow amount. But the loan modification agreement explicitly says that this could happen. Beside the escrow amount in the payment-schedule table it says, "adjusts periodically." The same is stated beside the total monthly payment amount in the table. And beneath the payment-schedule table, it says, "The Escrow payments may be adjusted periodically in accordance with applicable law and therefore my total monthly payment may change accordingly." The agreement later gives the reasons for escrow adjustments:

Lender may, at any time, collect and hold Funds [the amount to pay the escrow items] in an amount (a) sufficient to permit Lender to apply the Funds at the time specified under the Real Estate Settlement Procedures Act ("RESPA"), and (b) not to exceed the maximum amount a lender can require under RESPA. Lender shall estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow Items or otherwise in accordance with applicable law.

(Section E, "Funds for Escrow Items," ¶ 4). (A substantively identical provision is in section 3 of the mortgage.)

{¶ 46} A cursory look at Ocwen's payment histories reveals that the payment amounts applied to principal and interest stayed fairly constant (changing by only a few dollars) but that the amount applied to escrow fluctuated. The Malishes do not allege any problem with the escrow calculations. So contrary to their claim, Ocwen did not breach the loan modification agreement merely because it demanded higher total monthly payments.

{¶ 47} As to the Malishes' claim that their payments were not properly applied, a cursory comparison of the list of claimed payments attached to their affidavit and the payment histories attached to Ocwen's affidavit suggests otherwise. Admittedly, the reason for each transaction listed in Ocwen's payment histories is not always clear. But it appears that the payments made by the Malishes were applied to their account. And the Malishes have not pointed to any particular payment as being misapplied.

{¶ 48} The Malishes fail to show that a genuine issue exists as to the amount of principal due. Their affidavit does not show that the monthly payments demanded by Ocwen were wrong or that they made proper payments and Ocwen misapplied them. Nor does the affidavit show that they were overpaying.

{¶ 49} The second assignment of error is overruled.

III. Conclusion

{¶ 50} We have overruled both of the assignments of error presented. Therefore the trial court's judgment is affirmed.

WELBAUM, P.J. and FROELICH, J., concur.

      Standard USPS procedure for certified mail is to twice leave or send a peach Form 3849 notice that the post office will "will redeliver OR you or your agent can pick up your mail at the Post Office."


source: Caselaw Access Project

author: KLATT, J.

license: Public Domain

text:
    Barbara A. ROUBANES LUKE, Plaintiff-Appellee/Cross-Appellant, v. Matthew G. ROUBANES, Defendant-Appellant/Cross-Appellee.
    No. 16AP-766
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 23, 2018
    On brief: Denison Law Office, and Sallynda Rothchild Dennison, Columbus, for plaintiff-appellee. Argued: Sallynda Rothchild Dennison.
    On brief: The Nigh Law Group LLC, Joseph A. Nigh and Courtney A. Zollars ; Law Office of Margaret L. Blackmore LLC, and Margaret L. Blackmore, Columbus, for defendant-appellant. Argued: Joseph A. Nigh.
    DECISION
   KLATT, J.

{¶ 1} Defendant-appellant, Matthew G. Roubanes, appeals a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, that granted plaintiff-appellee, Barbara A. Roubanes Luke, relief under Civ.R. 60(B). Luke cross appeals from the same judgment. For the following reasons, we affirm in part and reverse in part the trial court's judgment.

{¶ 2} Roubanes and Luke married in 1998 and had two children. On June 21, 2008, Luke filed a complaint for divorce. In an agreed order entered September 30, 2008, Luke assented to the requirement that she pay Roubanes $1,000 per month in temporary child support during the pendency of the divorce proceedings.

{¶ 3} On March 25, 2009, the trial court issued a scheduling order. The trial court required the parties to respond to all discovery requests by April 24, 2009, and it set August 10, 2009 as the trial date.

{¶ 4} Luke served her first set of interrogatories and requests for the production of documents on April 27, 2009-three days after the deadline for responding to such discovery. Luke served a second set of interrogatories on June 5, 2009. When Roubanes only turned over two documents in response to Luke's discovery requests, Luke did not move to compel. Rather, on July 30, 2009, Luke filed a motion in limine requesting that the trial court prohibit Roubanes from offering any undisclosed documentary evidence at trial.

{¶ 5} The record contains no ruling on Luke's motion in limine, likely because Roubanes and Luke agreed to resolve all disputed issues in a summary trial. In such a trial, each party informally presents evidence to a judge. No transcript of the proceedings is made.

{¶ 6} According to Roubanes and Luke, during their summary trial, they presented the trial judge with information regarding their assets and debts. Using the information the parties provided, the trial judge recorded in a "Domestic Trial Summary Form" the parties' assets and debts, along with a value for each. (Pl.'s Ex. 24, Roubanes Dep.) The trial judge then proposed a division of the marital property, to which both Roubanes and Luke agreed.

{¶ 7} In a judgment dated August 27, 2009, the trial court granted the parties a divorce, divided their marital property in the manner agreed to at the summary trial, and approved the shared parenting plan to which the parties agreed. The shared parenting plan required Luke to pay to Roubanes child support in the amount of $930.70 per month, plus a processing charge and cash medical support (in the absence of private health insurance coverage for the children). The parties arrived at that amount of child support after setting Roubanes' annual income at $40,000 and Luke's annual income at $75,520. The trial court increased the amount of child support due by $554 "per month for 28 months, to pay past [temporary child support] arrearages and equalize [the] property settlement." (Aug. 27, 2009 Deviation Findings of Fact.)

{¶ 8} Luke did not pay the child support due, and a post-divorce arrearage began to accumulate. Roubanes filed motions for contempt when Luke failed to pay child support, fees owed to the guardian ad litem, and attorney fees awarded to him. Roubanes prevailed on a number of these motions. Luke eventually requested that the trial court modify the amount of child support due. The trial court granted Luke's motion and decreased the amount of her monthly child support obligation. This post-divorce litigation resulted in two appeals to this court. See Roubanes v. Roubanes , 10th Dist. No. 14AP-183, 2014-Ohio-5163, 2014 WL 6482785 ; Roubanes v. Roubanes , 10th Dist. No. 13AP-369, 2013-Ohio-5778, 2013 WL 6858958.

{¶ 9} On July 14, 2015, Luke filed a motion seeking relief under Civ.R. 60(B)(5) from the property distribution and child support provisions contained in the August 27, 2009 divorce decree. Luke also requested that that trial court relieve her of all child support obligations, whether imposed pre-divorce or post-divorce, and all orders requiring her to pay Roubanes' attorney fees. Luke asserted such relief was necessary because Roubanes had deliberately withheld from her and the trial court financial information relevant to the determination of his income and the division of the marital property. According to Luke, her motion was timely because she based it on Civ.R. 60(B)(5), and such motions need only be filed within a reasonable time after a final judgment.

{¶ 10} In opposing Luke's motion for Civ.R. 60(B) relief, Roubanes denied withholding financial information from Luke or the trial court. Additionally, Roubanes argued that Luke's motion was untimely. Given the character of Luke's allegations, Roubanes contended that Civ.R. 60(B)(3), not Civ.R. 60(B)(5), applied to her motion. Because Luke did not file her motion within one year of the August 27, 2009 judgment, Roubanes maintained that she missed the one-year deadline for seeking relief under Civ.R. 60(B)(3).

{¶ 11} The trial court held a hearing on Luke's Civ.R. 60(B) motion. Both Luke and Roubanes testified and presented documentary evidence at the hearing.

{¶ 12} In a judgment issued October 14, 2016, the trial court granted Luke's motion in part and denied it in part. First, the trial court examined affidavits that Roubanes had submitted to the court in 2008 and 2009. In the 2008 affidavit, Roubanes stated that his annual income was $6,000. In the 2009 affidavit, Roubanes stated that his annual income had risen to $7,200. The trial court compared Roubanes' representations to Luke's affidavit testimony, presented in support of her Civ.R. 60(B) motion, that Roubanes had deposited into his U.S. Bank and Chase Bank accounts $74,559.54 in 2008 and $103,243.58 in 2009.

{¶ 13} The trial court found it mathematically impossible for an individual with such low annual income to amass the funds necessary to deposit such large sums. Thus, the trial court concluded that Roubanes had misrepresented his 2008 and 2009 annual incomes in his affidavit testimony. Additionally, the trial court decided that Roubanes had falsely testified regarding his 2008 income because he had claimed $4,500 in net monthly receipts in his 2008 budget and his budgeted expenses for 2008 far outstripped his reported income. Based upon its analysis of the evidence, the trial court determined that Roubanes had committed fraud upon the court, which justified granting Luke relief under Civ.R. 60(B)(5). The trial court also concluded that Luke's Civ.R. 60(B)(5) motion was timely because she filed it within a month of discovering the amounts Roubanes had deposited into his U.S. Bank and Chase Bank accounts in 2008 and 2009.

{¶ 14} The trial court then turned to fashioning relief for Luke. According to the trial court, Roubanes' misrepresentations regarding his income caused the court to issue inequitable child support orders and erroneously rule in Roubanes' favor when he moved for contempt based on non-payment of child support. Thus, the trial court concluded that Roubanes' fraud on the court warranted granting Luke relief from all child support orders and ordering Roubanes to reimburse Luke for the attorney fees awarded to Roubanes in connection with the findings of contempt.

{¶ 15} The trial court next considered Luke's allegations that Roubanes had failed to disclose certain marital assets and misrepresented the value of other marital assets. The trial court concluded that these allegations, if true, only amounted to the type of fraud contemplated by Civ.R. 60(B)(3). The trial court denied Luke relief from the property distribution because she failed to file her motion within one year of the August 27, 2009 judgment, as required for motions filed under Civ.R. 60(B)(3).

{¶ 16} Both Roubanes and Luke appealed the October 14, 2016 judgment. However, neither party has asserted any assignments of error. Pursuant to App.R. 16(A)(3), an appellant's brief must contain "[a] statement of the assignments of error presented for review, with reference to the place in the record where each error is reflected." Assignments of error are particularly important because appellate courts determine each appeal "on its merits on the assignments of error set forth in the briefs under App.R. 16." App.R. 12(A)(1)(b). Consequently, without assignments of error, an appellate court has nothing to review. Pack v. Hilock Auto Sales , 10th Dist. No. 12AP-48, 2012-Ohio-4076, 2012 WL 3861233, ¶ 13.

{¶ 17} Appellate courts have discretion to dismiss appeals that fail to set forth assignments of error. CitiMortgage, Inc. v. Asamoah , 10th Dist. No. 12AP-212, 2012-Ohio-4422, 2012 WL 4470640, ¶ 5 ; Tonti v. Tonti , 10th Dist. No. 06AP-732, 2007-Ohio-2658, 2007 WL 1560261, ¶ 2. Many times, however, appellate courts instead review the appealed judgment using the appellant's arguments in the interest of serving justice. Asamoah at ¶ 6 ; Tonti at ¶ 2. We will follow that path in this case.

{¶ 18} For Roubanes, we draw assignments of error from the section headings in his appellant's brief. Thus, Roubanes assigns as error:

[1.] The trial court erred when it found that Appellant committed "fraud upon the court" and granted Cross-Appellant's Motion for Relief pursuant to Civ.R. 60(B).
[2.] The trial court erred and abused its discretion when it found Cross-Appellant's Motion for 60(B) [sic] was filed in a timely manner.
[3.] Trial court abused its discretion when they [sic] found that any and all child support orders naming Cross-Appellant as the obligor were released and any attorney fees awarded to Appellant were to be reimbursed.
[4.] The trial court's failure to recuse itself from this matter prior to holding a hearing on Cross-Appellant's Motion for 60(B) [sic] Relief, or prior to issuing a decision, was an abuse of discretion and violation of the Judicial Cannons [sic].

(Emphasis deleted.)

{¶ 19} For Luke, we extract an assignment of error from the statement of issues contained in the cross-appellant's brief. Thus, Luke assigns as error:

[T]he trial court abused its discretion by failing to find that Defendant/Appellant's misrepresentation of the property value in West Virginia as $800 at the time of the divorce also constituted fraud upon the court and was therefore timely raised by Plaintiff/Cross-Appellant.

(Emphasis deleted.)

{¶ 20} By Roubanes' first assignment of error, he argues that the trial court erred in finding that he committed fraud upon the court and granting Luke relief under Civ.R. 60(B)(5). We agree.

{¶ 21} Pursuant to Civ.R. 60(B), a court may relieve a party from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
(4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(5) any other reason justifying relief from the judgment.

Civ.R. 60(B)(1) through (5). To prevail on a Civ.R. 60(B) motion, a party must demonstrate that: (1) it has a meritorious claim or defense to present if the court grants it relief; (2) it is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) it filed the motion within a reasonable time and, when relying on a ground for relief set forth in Civ.R. 60(B)(1), (2), or (3), it filed the motion not more than one year after the judgment, order, or proceeding was entered or taken. GTE Automatic Elec., Inc. v. ARC Industries, Inc. , 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. If the moving party fails to demonstrate any of these three requirements, the trial court should overrule the motion. Rose Chevrolet, Inc. v. Adams , 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988). A trial court exercises its discretion when ruling on a Civ.R. 60(B) motion, and, thus, an appellate court will not disturb such a ruling absent an abuse of discretion. Griffey v. Rajan , 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987).

{¶ 22} A court may grant relief under Civ.R. 60(B)(5), the so-called "catch-all"

provision, only in those extraordinary and unusual cases where the moving party demonstrates substantial grounds warranting relief from judgment. Caruso-Ciresi, Inc. v. Lohman , 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983), paragraph two of the syllabus; Social Psychological Servs., Inc. v. Magellan Behavioral Health, Inc. , 10th Dist. No. 10AP-326, 2010-Ohio-6531, 2010 WL 5550695, ¶ 17. Such substantial grounds exist if the moving party establishes a fraud upon the court. Coulson v. Coulson , 5 Ohio St.3d 12, 448 N.E.2d 809 (1983), paragraph one of the syllabus. Fraud upon the court exists if the fraud " 'defile[s] the court itself, or is a fraud perpetrated by the officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudicating cases that are presented for adjudication.' " Id. at 15, 448 N.E.2d 809. Examples of fraud upon the court justifying Civ.R. 60(B)(5) relief include egregious misconduct such as bribery of a judge or jury member by a third party or fabrication of evidence by counsel. Barton v. Barton , 2d Dist. No. 2015-CA-53, 2016-Ohio-5264, 2016 WL 4168857, ¶ 19 ; Wilkerson v. Wilkerson , 12th Dist. No. CA2013-06-089, 2014-Ohio-1322, 2014 WL 1356673, ¶ 17 ; Stairwalt v. Stairwalt , 2d Dist. No. 2007 CA 30, 2008-Ohio-2597, 2008 WL 2222384, ¶ 14.

{¶ 23} Courts carefully distinguish between fraud upon the court, which is a basis for relief from judgment under Civ.R. 60(B)(5), and fraud upon a party, which is a basis for relief from judgment under Civ.R. 60(B)(3). Technically, any fraud connected with the presentation of a case to a court could constitute fraud upon the court in a broad sense. Coulson at 15, 448 N.E.2d 809. However, courts cannot invoke Civ.R. 60(B)(5) when any of the more specific provisions of Civ.R. 60(B) apply. Cuyahoga Support Enforcement Agency v. Guthrie , 84 Ohio St.3d 437, 440, 705 N.E.2d 318 (1999) ; Lohman at paragraph one of the syllabus. As we stated above, Civ.R. 60(B)(3) permits relief from judgment in cases of fraud, misrepresentation, and other misconduct by an adverse party. Thus, Civ.R. 60(B)(3) applies when an adverse party's fraud, misrepresentation, or misconduct in obtaining a judgment has prevented the other party from fully and fairly presenting its case. Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 13 ; PNC Bank, N.A. v. Botts , 10th Dist. No. 12AP-256, 2012-Ohio-5383, 2012 WL 5868891, ¶ 15. "Fraud on an adverse party may exist when, for example, a party presents material false testimony at trial, and the falsity is not discovered until after the trial." Botts at ¶ 15 ; accord Barton at ¶ 18 ; In re Dankworth Trust , 7th Dist. No. 14 BE 9, 2014-Ohio-5825, 2014 WL 7475202, ¶ 38. If courts accorded fraud upon the court a broad meaning, it could easily subsume the type of fraud covered by Civ.R. 60(B)(3). Courts, therefore, narrowly construe fraud upon the court in order to prevent it from overwhelming Civ.R. 60(B)(3) and rendering Civ.R. 60(B)(3)'s one-year time limitation meaningless. Heltzel v. Heltzel , 11th Dist. No. 3788, 1987 WL 18032 (Sept. 30, 1987) ; Hartford v. Hartford , 53 Ohio App.2d 79, 83, 371 N.E.2d 591 (8th Dist.1977) ; accord Great Coastal Express, Inc. v. Internatl. Bhd. of Teamsters , 675 F.2d 1349, 1356 (4th Cir.1982) ("The principal concern motivating narrow construction is that the otherwise nebulous concept of 'fraud on the court' could easily overwhelm the specific provision of 60(b)(3) and its time limitation and thereby subvert the balance of equities contained in the Rule.").

{¶ 24} Due to this narrow construction, in the usual case, fraud in the presentation of evidence amounts to fraud upon a party. Coulson at 15, 448 N.E.2d 809. False testimony and the withholding of evidence generally fall within Civ.R. 60(B)(3), not Civ.R. 60(B)(5). Derico v. Schimoler , 8th Dist. No. 94935, 2011-Ohio-615, 2011 WL 494953, ¶ 12 ; Caron v. Manfresca , 10th Dist. No. 98AP-1399, 1999 WL 739570 (Sept. 23, 1999) ; Still v. Still , 4th Dist. No. 95CA15, 1996 WL 362259 (June 25, 1996) ; accord Geo. P. Reintjes Co. v. Riley Stoker Corp. , 71 F.3d 44, 49 (1st Cir.1995) (holding that "perjury alone, absent allegation of involvement by an officer of the court * * *, has never been sufficient" to constitute fraud upon the court); Gleason v. Jandrucko , 860 F.2d 556, 560 (2d Cir.1988) (holding that "neither perjury nor nondisclosure, by itself, amounts to anything more than fraud involving injury to a single litigant"); Kerwit Med. Prods., Inc. v. N & H Instruments, Inc. , 616 F.2d 833, 837 (5th Cir.1980) ("[M]ere nondisclosure to an adverse party and to the court of facts pertinent to a controversy before the court does not add up to 'fraud upon the court.' "). "The possibility of perjury, even concerted, is a common hazard of the adversary process with which litigants are equipped to deal through discovery and cross-examination, and, where warranted, [a Civ.R. 60(B)(3) ] motion for relief from judgment." Geo. P. Reintjes at 49. Fraud upon the court is limited to the more egregious forms of subversion of the legal process, which a court cannot necessarily expect to be exposed by the normal adversary process. Great Coastal Express at 1357,.

{¶ 25} In Scholler v. Scholler , 10 Ohio St.3d 98, 462 N.E.2d 158 (1984), the Supreme Court of Ohio considered whether a fraud upon the court occurred based on an ex-wife's allegation that her ex-husband fraudulently withheld critical financial information and misrepresented his financial status during negotiation of a separation agreement. The court defined "fraud upon the court" "as the situation '[w]here an officer of the court, e.g. , an attorney * * * actively participates in defrauding the court * * *.' " Id. at 106, 462 N.E.2d 158, quoting Coulson at 15, 448 N.E.2d 809. Because the ex-wife alleged that the adverse party-not an officer of the court-had committed the fraud at issue, the court concluded that the ex-wife had not established fraud upon the court. Id.

{¶ 26} Subsequently to Scholler , multiple Ohio courts, including this court, have concluded that, if the alleged fraud occurred between the parties, Civ.R. 60(B)(3) is the only ground upon which the aggrieved party can seek relief from a prior judgment. If, on the other hand, an attorney or other officer of the court perpetrates a fraud on the court, then Civ.R. 60(B)(5) is the proper basis for requesting relief. Wells Fargo Bank, N.A. v. Bluhm , 6th Dist. No. E-13-052, 2015-Ohio-921, 2015 WL 1137972, ¶ 30-31 ; Costakos v. Costakos , 10th Dist. No. 03AP-959, 2004-Ohio-2138, 2004 WL 886900, ¶ 11 ; McGowan v. Stoyer , 10th Dist. No. 02AP-263, 2002-Ohio-5410, 2002 WL 31248020, ¶ 18 ; Applegate v. Applegate , 10th Dist. No. 99AP-1321, 2000 WL 1358063 (Sept. 21, 2000) ; In re Foreclosure of Liens for Delinquent Land Taxes , 10th Dist. No. 99AP-714 (Mar. 28, 2000); Turoczy v. Turoczy , 30 Ohio App.3d 116, 506 N.E.2d 942 (8th Dist.1986), syllabus; accord In re Dankworth Trust at ¶ 38 (holding that Civ.R. 60(B)(5) is "used when the fraud alleged is done by an officer of the court; Civ.R. 60(B)(3) only applies to fraud that is committed by an adverse party"); BAC Home Loans Servicing, L.P. v. Meister , 11th Dist. No. 2012-L-042, 2013-Ohio-873, 2013 WL 942747, ¶ 16, quoting Coulson at 15, 448 N.E.2d 809 ("[A] party may use Civ.R. 60(B)(5) to raise the issue of fraud upon the court; however, this concept has been distinguished from fraud by an adverse party and has been carefully limited to the occasion where an 'officer of the court * * * actively participates in defrauding the court.' "); Huffman v. Huffman , 4th Dist. No. 00CA704, 2001 WL 1383020 (Oct. 30, 2001) ("[I]n order to show fraud upon the court, and be subject to Civ.R. 60(B)(5)'s more lenient time limits, a party must show that an officer of the court actively participated in defrauding the court.").

{¶ 27} Here, the trial court concluded that Roubanes committed a fraud on the court because he misrepresented his income for 2008 and 2009 in affidavits that he submitted to the court. We will assume, without deciding, that the trial court correctly found that Roubanes engaged in fraud by falsely testifying about his income. Therefore, the issue becomes whether Roubanes committed fraud on the court, or on Luke. We conclude that Roubanes' false testimony constituted fraud on Luke. Roubanes' fraud is the kind of fraud either rooted out through the adversary process or corrected post-judgment through the application of Civ.R. 60(B)(3).

{¶ 28} Nevertheless, Luke could establish the level of egregiousness necessary for establishing fraud upon the court by showing that an officer of the court participated in Roubanes' fraud. Luke did not argue or present evidence to the trial court that an officer of the court was involved in the fraud at issue. Now, on appeal, Luke argues for the first time that a fraud upon the court occurred because Roubanes, as a pro se litigant, was the equivalent of an officer of the court.

{¶ 29} Generally, a party waives the right to appeal an issue that the party could have, but did not, raise before the trial court. Columbus City School Bd. of Edn. v. Franklin Cty. Bd. of Revision , 144 Ohio St.3d 549, 2015-Ohio-4837, 45 N.E.3d 968, ¶ 14 ; Niskanen v. Giant Eagle, Inc. , 122 Ohio St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 34. Because Luke did not argue before the trial court that Roubanes was, in effect, an officer of the court, she waived that argument on appeal. This court, therefore, need not consider Luke's argument.

{¶ 30} Moreover, even had Luke not waived her argument, she cannot prevail on it. An "officer of the court" is " '[a] person who is charged with upholding the law and administering the judicial system[;] typically, officer of the court refers to a judge, clerk, bailiff, sheriff, or the like, but the term also applies to a lawyer, who is obliged to obey court rules and who owes a duty of candor to the court.' " (Emphasis sic.) Wilkerson , 2014-Ohio-1322, at ¶ 19, quoting Black's Law Dictionary 1119 (8th Ed.2004). A pro se litigant is not an officer of the court and, consequently, cannot commit a fraud upon the court. Gerber v. Gospich , 8th Dist. No. 60832, 1991 WL 232136 (Nov. 7, 1991) ; accord Damiani v. Duffy , D.Del. No. 12-1637-RGA, 2017 WL 635644 (Feb. 16, 2017) ; Vaughan v. Brigham , E.D.Ken. No. 3: 10-05-DCR, 2011 WL 2633369 (July 5, 2011), aff'd , 6th Cir. No. 11-5981, 2012 U.S. App. LEXIS 21754 (May 9, 2012); Florence v. Donald , S.D.Ga. No. CV 306-087, 2008 WL 1758796 (Apr. 16, 2008).

{¶ 31} In sum, Luke failed to prove that fraud upon the court occurred in this case. We thus conclude that the trial court erred in finding that Roubanes committed a fraud upon the court and granting Luke Civ.R. 60(B)(5) relief on that basis. Accordingly, we sustain Roubanes' first assignment of error.

{¶ 32} Given our ruling on Roubanes' first assignment of error, we must reverse the trial court's judgment to the extent that it grants Luke relief from the orders requiring Luke to pay child support and Roubanes' attorney fees. Roubanes' remaining assignments of error advance alternative reasons for reversing the same portion of the judgment. Thus, our determination of Roubanes' first assignment of error renders moot the remaining assignments of error. We, consequently, will not rule on the second through fourth assignments of error.

{¶ 33} By Luke's cross assignment of error, she argues that the trial court erred in refusing to find that Roubanes engaged in fraud upon the court by misrepresenting the value of real property the couple owned in West Virginia. We disagree.

{¶ 34} During the parties' marriage, Roubanes purchased a house in West Virginia. Immediately prior to the summary trial, Roubanes filed a "Statement of Assets and Liabilities" in which he valued the West Virginia property at $38,640 and represented that the mortgage on the property amounted to $37,834.04. No transcript was made of the summary trial, so we have no record of exactly what Roubanes told the trial judge about the West Virginia property's value during the summary trial. When asked at his deposition what he said at the summary trial, Roubanes stated that the value he offered "came right off the tax statement. It came right off the assessed value statement; and I would be guessing, but I think it was thirty-six or thirty-eight thousand dollars." (Roubanes Dep. at 298-99.)

{¶ 35} The trial judge included the West Virginia property in the "Domestic Trial Summary Form," but he did not note in the form the appraised value of the property or the amount owed on the mortgage. Instead, the form only lists the "equity value" of the West Virginia property at $800. (Pl.'s Ex. 24, Roubanes Dep.) This value is consistent with the figures Roubanes reported in his "Statement of Assets and Liabilities," which reflected that the equity value of the West Virginia property was $805.96. The trial court used the $800 value when dividing the parties' marital property.

{¶ 36} During the Civ.R. 60(B) hearing, Luke produced Exhibit E, which her attorney described as a printout from the West Virginia auditor's website. Exhibit E appears to show that the value of the West Virginia property was $67,000 in tax year 2009. Luke relied on Exhibit E to contend that Roubanes misrepresented the value of the West Virginia property during the summary trial. Luke argued to the trial court that this misrepresentation warranted relief under Civ.R. 60(B)(5). The trial court rejected Luke's argument, stating the allegations of fraud associated with the marital property division constituted fraud upon Luke, and not the court.

{¶ 37} Applying the law set forth above, we conclude that the alleged misrepresentation of the West Virginia property's value is not fraud upon the court. Luke merely complains that Roubanes falsely testified about the value of a marital asset. She does not claim that an officer of the court participated in the alleged fraud. Accordingly, the trial court did not err in concluding that Roubanes did not commit fraud upon the court when he allegedly misrepresented the value of the West Virginia property.

{¶ 38} In making her appellate argument, Luke cites precedent from this court holding that a trial court may grant relief under Civ.R. 60(B)(5) if a party fails to disclose a marital asset prior to the entry of a divorce decree. See, e.g., Clymer v. Clymer , 10th Dist. No. 91AP-438, 1991 WL 224478 (Sept. 10, 1991) ; Hellwege v. Hellwege , 10th Dist. No. 85AP-927, 1986 WL 6335 (June 5, 1986). Notably, in these cases, the question was not whether a party had committed fraud upon the court, thus entitling the opposing party to relief under Civ.R. 60(B)(5). Rather, the precedent at issue held that a party's failure to disclose a marital asset can constitute a Civ.R. 60(B)(5) ground independent from the fraud-upon-the-court basis for relief. Trenner v. Trenner , 10th Dist. No. 01AP-743, 2002 WL 124719 (Jan. 31, 2002).

{¶ 39} The above-cited cases are irrelevant to this case for two reasons. First, Luke's assignment of error only asserts that the trial court erred in failing to find fraud upon the court due to Roubanes' alleged misrepresentation regarding the West Virginia property. Because Luke's assignment of error does not contend that the trial court erred in failing to grant her Civ.R. 60(B) relief based on the rule followed in Clymer and Hellwege , we need not address that contention. See Bonn v. Bonn , 10th Dist. No. 12AP-1047, 2013-Ohio-2313, 2013 WL 2444641, ¶ 9 ("[T]his court rules on assignments of error only, and will not address mere arguments."). Second, the precedent at issue only applies when a marital asset is entirely omitted from the property division; not where a party misstates an asset's value. Tait v. Tait , 10th Dist. No. 92AP-306, 1992 WL 249943 (Sept. 29, 1992) ; Hellwege . As the alleged misrepresentation here relates solely to the property's value, this precedent does not justify relief from judgment in this case.

{¶ 40} In sum, we conclude that the trial court did not err in determining that Roubanes did not engage in fraud upon the court when he allegedly misstated the value of the West Virginia property. Accordingly, we overrule Luke's assignment of error.

{¶ 41} For the foregoing reasons, we sustain Roubanes' first assignment of error, which moots the second through fourth assignments of error. Additionally, we overrule Luke's sole assignment of error. We thus reverse the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, to the extent that it granted Luke Civ.R. 60(B) relief, and we affirm that judgment to the extent that it denied Luke Civ.R. 60(B) relief.

Judgment affirmed in part; reversed in part.

BROWN, P.J., and BRUNNER, J., concur.

      Civ.R. 60(B)(3) allows a court to vacate a judgment due to "fraud * * *, misrepresentation or other misconduct of an adverse party."

      According to Luke, Roubanes did not divulge the existence of the U.S. Bank account before or during the summary trial. Although Luke knew of the Chase Bank account at the time of trial, she claims that she did not know the amount of the funds that Roubanes had deposited into that account in 2008 or 2009. Roubanes maintains that he disclosed printouts of his bank account balances during the summary trial.

      The adversarial process provided Luke with the means to uncover evidence to expose Roubanes' fraud, but she did not use those means. Luke failed to diligently pursue discovery and she relinquished her right to a full trial, where she could have cross-examined Roubanes.

      No witness authenticated Exhibit E. Therefore, there is no evidence explaining the origin or meaning of the information contained on the page of the exhibit that appears to state the property's appraised value. Despite the murkiness surrounding Exhibit E, we will presume for purposes of this appeal that Exhibit E establishes that in 2008 a West Virginia government entity appraised the parties' property at $67,000.


author: TUCKER, J.

text:
    U.S. HOME OWNERSHIP, LLC, Plaintiff-Appellee v. Collin L. YOUNG, et al., Defendant-Appellant
    No. 27382
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on March 23, 2018
    BRIAN S. JACKSON, Atty. Reg. No. 0068516, 7550 Paragon Road, Centerville, Ohio 45459, Attorney for Plaintiff-Appellee
    WORRELL A. REID, Atty. Reg. No. 0059620, 6718 Loop Road, Centerville, Ohio 45459, Attorney for Defendant-Appellant
   TUCKER, J.

{¶ 1} Defendant-appellant, Collin L. Young, appeals from the trial court's decision of November 16, 2016, granting summary judgment in favor of Plaintiff-appellee, U.S. Home Ownership, LLC ("USHO"). Young argues, in three assignments of error, that the trial court incorrectly concluded that USHO met its burden under Civ.R. 56(C) to demonstrate the absence of any genuine issues of material fact. We find that USHO did not meet its burden, and therefore, we reverse.

I. Facts and Procedural History

{¶ 2} Young executed a promissory note on or about October 17, 2005 (the "Note") made payable to Intervale Mortgage Corporation in the principal amount of $138,000.00. Am. Compl., Ex. A. On or about the same date, Young executed a mortgage (the "Mortgage") on the real property located at 1200 Latchwood Avenue in Dayton (the "Property") to secure his repayment of the Note. Id. at Ex. B. Afterward, Intervale Mortgage Corporation assigned the Mortgage to the Bank of New York Trust Company, N.A.; the Bank of New York Trust Company, N.A. assigned the Mortgage to Residential Funding Company, LLC; and Residential Funding Company, LLC assigned the Mortgage to CSH Fund IV, LLC. See id. CSH Fund IV, LLC also took possession of the Note. See id. at Ex. A.

{¶ 3} On October 1, 2012, CSH Fund IV, LLC commenced a foreclosure proceeding against Young in Montgomery County Court of Common Pleas Case No. 2012 CV 07043. The case was dismissed pursuant to Civ.R. 41(A) on September 10, 2013. Subsequently, CSH Fund IV, LLC transferred the Mortgage and the Note to Capital Income and Growth Fund, LLC, which in turn, transferred the Mortgage and the Note to USHO. See Am. Compl., Exs. A-B.

{¶ 4} USHO filed its own complaint in foreclosure against Young on May 28, 2015. On USHO's motion, the trial court entered summary judgment in its favor in a decision entered on November 16, 2016 (the "Decision").

II. Analysis

{¶ 5} Young challenges the trial court's entry of summary judgment in favor of USHO. Because appellate review of summary judgment rulings is de novo, we apply the standard set forth in Civ.R. 56(C), pursuant to which summary judgment "shall be rendered forthwith" when: (1) "there is no genuine issue as to any material fact"; (2) "the moving party is entitled to judgment as a matter of law"; and (3) construing the evidence most strongly in favor of the non-moving party, "reasonable minds" could not conclude otherwise. See also Bonacorsi v. Wheeling & Lake Erie Ry. Co. , 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 24 ; Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). The movant initially bears the burden of showing that no genuine issues of material fact exist. Mitseff v. Wheeler , 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988).

{¶ 6} In order to meet this burden, the movant may rely only on those portions of the record properly before the court under Civ.R. 56(C). Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant thus provides the court with evidence that no genuine issues of material fact exist, then the non-moving party bears the reciprocal burden, as stated in Civ.R. 56(E), to establish specific facts showing genuine issues to be tried. Id. at 293, 662 N.E.2d 264. The non-moving party "may not rest upon the mere allegations or denials of [the] pleading[s], but must set forth specific facts showing there is [at least one] genuine issue for trial" to satisfy its reciprocal burden. Chaney v. Clark County Agric. Soc. , 90 Ohio App. 3d 421, 424, 629 N.E.2d 513 (2d Dist.1993), citing Civ.R. 56(E), and Jackson v. Alert Fire & Safety Equip. , 58 Ohio St.3d 48, 51, 567 N.E.2d 1027 (1991). Whether a fact is "material" depends on the substantive law of the claim being litigated. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Turner v. Turner , 67 Ohio St.3d 337, 340, 617 N.E.2d 1123 (1993).

{¶ 7} Young bases his three assignments of error on the premise that the trial court incorrectly concluded that this case presents no genuine issues of material fact. To prevail on a motion for summary judgment in a foreclosure action, the plaintiff must prove: " '(1) [it] is the holder of the note and [the] mortgage, or is a party entitled to enforce [them]; (2) if the [plaintiff] is not the original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due.' " JP Morgan Chase Bank, N.A. v. Massey , 2d Dist. Montgomery No. 25459, 2013-Ohio-5620, 2013 WL 6795596, ¶ 20, quoting Wright-Patt Credit Union, Inc. v. Byington , 6th Dist. Erie No. E-12-002, 2013-Ohio-3963, 2013 WL 5211503, ¶ 10. According to Young, the record establishes the existence of genuine disputes of fact concerning USHO's satisfaction of the conditions precedent to its right to initiate foreclosure proceedings, its entitlement to enforce the Note and the Mortgage, and the amount of unpaid principal and interest it seeks to recover. These are material facts under substantive foreclosure law.

{¶ 8} For his first assignment of error, Young contends that:

THE TRIAL COURT'S RULING IN THE FINAL AND APPEALABLE DECISION AND ENTRY SUSTAINING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND THE ACCOMPANYING DECREE OF FORECLOSURE, FILED ON NOVEMBER 16, 2016, WHEREIN THE COURT FOUND THAT THE PLAINTIFF HAD MET ALL CONDITIONS PRECEDENT, WAS CONTRARY TO LAW AS THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER OR NOT THE HOMEOWNER WAS PROPERLY SERVED WITH NOTICE OF DEFAULT, AND THUS IN REGARDS TO PLAINTIFF'S STANDING.

{¶ 9} In the Decision, the trial court held that USHO "complied with all conditions precedent" to its right to initiate foreclosure proceedings "by mailing the requisite notice [of default] by first-class mail as required by the [N]ote." Decision 27. Young argues that the trial court erred because: (1) neither the notice dated April 4, 2012, nor the notice dated February 5, 2014, has been properly authenticated; (2) the notice dated February 5, 2014 does not comply with the relevant terms of the Mortgage; and (3) the notice dated April 4, 2012 was issued on behalf of one of USHO's predecessors in anticipation of a previous foreclosure action (Case No. 2012 CV 07043) that has since been dismissed, effectively nullifying it. See Appellant's Br. 3-7.

{¶ 10} Regarding Young's first argument, USHO submitted two affidavits in support of its motion for summary judgment, both of which were executed by Darryl Fry, USHO's managing member. Pl.'s Aff. of Status of Account ¶ 1, Mar. 10, 2016 [hereinafter First Affidavit ]; Pl.'s Supplemental Aff. of Status of Account ¶ 1, Oct. 11, 2016 [hereinafter Second Affidavit ]. In the First Affidavit, Fry avers that "[a]ccording to [USHO]'s business records, a written notice of default was sent to Collin L. Young in accordance with the terms of the [N]ote and [the] [M]ortgage," and that a "duplicate, true and accurate copy of the notice" is attached. First Aff. ¶ 9. Fry offers no other description of the attached document itself, though Exhibit "D" consists of at least one page of the notice of default dated February 5, 2014. See id. at Ex. D. In the Second Affidavit, Fry avers that "[a]ccording to [USHO]'s business records, a [n]otice of [d]efault was sent [to] Collin L. Young by first class mail." Second Aff. ¶ 5. Fry supports this averment with "a duplicate, true and accurate copy of the [a]ffidavit of Dawn Kernicky," which was filed by CSH Fund IV, LLC in Case No. 2012 CV 07043; a "duplicate true and accurate copy of the notice of default" attached to Kernicky's affidavit; and "a copy of its first class mail envelop[e]." Id.

{¶ 11} For an affiant to authenticate a business record under Evid.R. 803(6), he "must demonstrate that: (1) the record was prepared by an employee of the business who had a duty to report the information; (2) [he has] personal knowledge of the event or transaction reported; (3) the record was prepared at or near the time of the event or transaction"; and (4) the business created such records as a regular practice. State v. Richardson , 2016-Ohio-8081, 75 N.E.3d 831, ¶ 39 (2d Dist.), citing State v. Hall , 2d Dist. Montgomery No. 19074, 2003-Ohio-2824, 2003 WL 21267771, ¶ 34. By this standard, Fry would not seem to have the requisite personal knowledge to authenticate Kernicky's affidavit or the attached exhibits, though the affidavit itself has been notarized and is therefore self-authenticating under Evid.R. 902(1). Second Aff. ¶ 5 and Ex. A. With respect to the First Affidavit, however, we find that Fry has failed to demonstrate sufficient personal knowledge to authenticate Exhibit D.

{¶ 12} If "particular averments contained in an affidavit suggest that it is unlikely that the affiant has personal knowledge of [the corresponding] facts, then * * * something more than a conclusory averment that the affiant [actually] has [personal] knowledge of the facts [is] required." Merchants Nat'l Bank v. Leslie , 2d Dist. Clark No. 3072, 1994 WL 12433, *2 (Jan. 21, 1994) ; see also U.S. Bank, N.A. v. Duvall , 8th Dist. Cuyahoga No. 102156, 2015-Ohio-2275, 2015 WL 3647460, ¶ 19, citing Leslie , 1994 WL 12433. In Paragraph 9 of the First Affidavit, Fry avers that "a written notice of default was sent to Collin L. Young in accordance with the terms of the [N]ote and [the] [M]ortgage," and he describes the attached Exhibit D as "a duplicate, true and accurate copy of the notice." First Aff. ¶ 9.

{¶ 13} A comparison of Fry's averment in Paragraph 9 with the single page appearing in Exhibit D calls Fry's personal knowledge of the document into question. Fry fails to specify even as much as the date on which the document was purportedly sent to Young, nor does he provide any other description of the document, such as a reference to the identity of the attorney or law firm responsible for sending it. Id. Fry's assertion, furthermore, that the document accords "with the terms of the [N]ote and [the] [M]ortgage" is inaccurate. Paragraph 22 of the Mortgage requires that a notice of default advise Young of his "right to assert in [a] foreclosure proceeding the non-existence of a default or any other defense * * * to acceleration and foreclosure" and list "a date, not [fewer] than 30 days from the date the notice is given" by which "the default must be cured." Am. Compl., Ex. B. The text of Exhibit D includes no advice concerning Young's right to assert the non-existence of default or other defenses in a foreclosure proceeding, and the document, dated February 5, 2014, specifies a cure-by date of March 6, 2014-only 29 days later. See First Aff. ¶ 9 and Ex. D. Additionally, the document itself, written on a law firm's letterhead, appears to be an incomplete copy inasmuch as contrary to prevailing custom, it bears no signature; ordinarily, a law firm's correspondence is signed by one or more of the firm's agents, associates, employees or partners. Id. at Ex. D.

{¶ 14} We hold that Fry lacks personal knowledge sufficient to authenticate the notice of default dated April 4, 2012. Further, we hold that Fry has failed to demonstrate that he has personal knowledge sufficient to authenticate the notice of default dated February 5, 2014. Our holding that Fry has failed to authenticate Exhibit D to the First Affidavit essentially renders Young's second argument moot, though as noted above, the text of Exhibit D does not satisfy the requirements of Paragraph 22 of the Mortgage.

{¶ 15} Regarding Young's third argument, the notice of default dated April 4, 2012 was issued by "RoundPoint Mortgage Servicing Corporation as servicer for CSH Fund IV, LLC," one of USHO's predecessors in interest. Second Aff. ¶ 5 and Exs. A-B. Paragraph 22 of the Mortgage requires that the "[l]ender give notice to [the] [b]orrower prior to acceleration." (Emphasis added.) Am. Compl., Ex. B. Likewise, Subparagraph 7(C) of the Note indicates that upon the borrower's failure to pay as agreed, "the [n]ote [h]older may send [the borrower] a written notice" of default. (Emphasis added.) Id. at Ex. A. On its face, then, the notice of April 4, 2012 does not satisfy the conditions precedent to USHO's right to initiate a foreclosure action because Paragraph 22 of the Mortgage requires that notice of default be sent by the "[l]ender," and Subparagraph 7(C) of the Note requires that notice of default be sent by the "[n]ote [h]older." Id. at Exs. A-B. At the time USHO filed its complaint against Young, CSH Fund IV, LLC was no longer the mortgagee or the holder of the Note, meaning that USHO did not, itself or through an agent, fulfill the notice requirements set forth in the Mortgage and the Note by way of the notice sent to Young on April 4, 2012. See Wells Fargo Bank v. Sowell , 2015-Ohio-5134, 53 N.E.3d 969, ¶ 23-28 (8th Dist.) ; Wells Fargo Bank v. Watson , 2015-Ohio-2599, 41 N.E.3d 79, ¶ 72-73 (11th Dist.).

{¶ 16} Moreover, we are persuaded by case law suggesting that when a mortgagee issues a notice of default, commences a foreclosure action and then dismisses the action, the mortgagee (or its successor in interest) must send a new notice of default if it wishes to commence a second action against the mortgagor. See , e.g. , Deutsche Bank Trust Co. Americas v. Beauvais , 188 So.3d 938, 950-952 (Fla. 3d Dist. Ct. App.2016) ; Granados v. Nadel , 220 Md.App. 482, 104 A.3d 921, 935 (Md. Ct. Spec. App.2014) ; compare with Bank of New York Mellon v. Walker , 2017-Ohio-535, 78 N.E.3d 930, ¶ 11-17 (8th Dist.) (considering a roughly similar question for purposes of the statute of limitations). This requirement seems all the more justified in cases like the instant matter, where the Mortgage and the Note were transferred twice after CSH Fund IV, LLC dismissed its foreclosure action against Young, and the intervening party in interest, Capital Income and Growth Fund, LLC, chose not to initiate a foreclosure action of its own.

{¶ 17} The notice of February 5, 2014, although purportedly sent by USHO, has not been properly authenticated. In the absence of a properly authenticated exhibit showing that USHO itself complied with the notice requirements established by the terms of the Mortgage and the Note, we hold that USHO has failed to demonstrate the absence of any genuine dispute of fact concerning its satisfaction of conditions precedent. Consequently, Young's first assignment of error is sustained.

{¶ 18} For his second assignment of error, Young contends that:

THE TRIAL COURT'S RULING IN THE FINAL AND APPEALABLE DECISION AND ENTRY SUSTAINING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND THE ACCOMPANYING DECREE OF FORECLOSURE, FILED ON NOVEMBER 16, 2016, WHEREIN THE TRIAL COURT FOUND THAT THE CHAIN OF ASSIGNMENTS AND TRANSFERS SHOWED THAT THE PLAINTIFF WAS THE REAL PARTY IN INTEREST, WAS CONTRARY TO LAW AS THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER OR NOT THE PLAINTIFF WAS THE TRUE OWNER OF THE NOTE AND MORTGAGE.

{¶ 19} Young argues that USHO has failed to demonstrate that it has possession of the Note and the Mortgage. Appellant's Br. 8. The exhibits attached to USHO's amended complaint refute this argument.

{¶ 20} Exhibit A to the amended complaint is a copy of a promissory note executed by Young on or about October 17, 2005 and made payable to Intervale Mortgage Corporation in the principal amount of $138,000.00, and in his own affidavit, Young avers that on "October 17, 2005, [he] executed a [n]ote * * * in favor of Intervale Mortgage Corporation for the purchase of [his] home." Am. Compl., Ex. A; Aff. of Collin Young ¶ 3, May 6, 2016. Through a series of endorsements and allonges, Intervale Mortgage Corporation transferred the Note to Decision One Mortgage Company LLC, Ltd.; Decision One Mortgage Company LLC, Ltd. transferred the Note to Residential Funding Company, LLC; Residential Funding Company, LLC transferred the Note to the Bank of New York Trust Company, N.A.; the Bank of New York Trust Company, N.A. transferred the Note back to Residential Funding Company, LLC; Residential Funding Company, LLC transferred the Note to CSH Fund IV, LLC; CSH Fund IV, LLC transferred the Note to Capital Income and Growth Fund, LLC; and Capital Income and Growth Fund, LLC transferred the Note to USHO. Am. Compl., Ex. A. Thus, we conclude that USHO has established that it is the holder of the Note.

{¶ 21} Exhibit B to the amended complaint is a notarized copy of a mortgage executed by Young on October 17, 2005 with respect to the real property located at 1200 Latchwood Avenue in Dayton. Am. Compl., Ex. B; Young Aff. ¶ 3. Because the Mortgage is notarized, it is self-authenticating. Evid.R. 902(1).

{¶ 22} In a series of assignments, Intervale Mortgage Corporation assigned the Mortgage to the Bank of New York Trust Company, N.A.; the Bank of New York Trust Company, N.A. assigned the Mortgage to Residential Funding Company, LLC; Residential Funding Company, LLC assigned the Mortgage to CSH Fund IV, LLC; CSH Fund IV, LLC assigned the Mortgage to Capital Income and Growth Fund, LLC; and Capital Income and Growth Fund, LLC assigned the Mortgage to USHO. Am. Compl., Ex. B. The last assignment, which refers to the Note, was recorded on December 30, 2013, indicating that USHO took possession of the Mortgage and the Note before it filed its complaint against Young. Id. ; see also U.S. Bank, N.A. v. Rex Station Ltd. , 2d Dist. Montgomery No. 26019, 2014-Ohio-1857, 2014 WL 1779369, ¶ 20-22 (holding that cross-references among an assignment of mortgage, a mortgage and a note are "sufficient to raise a rebuttable presumption of [the assignor's] intent to convey both the mortgage and the note" to the assignee, even if the assignment lacks " 'an express transfer of the note' "), quoting Fed. Home Loan Mortgage Corp. v. Koch , 11th Dist. Geauga No. 2012-G-3084, 2013-Ohio-4423, 2013 WL 5532836, ¶ 36. As a result, we find that USHO has established that it had possession of the Mortgage and the Note at the time it filed its complaint, that it presently has possession of the Mortgage and the Note, and it thus has standing to pursue the instant action in foreclosure. Young's second assignment of error is overruled.

{¶ 23} For his last assignment of error, Young contends that:

THE TRIAL COURT'S RULING IN THE FINAL AND APPEALABLE DECISION AND ENTRY SUSTAINING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND THE ACCOMPANYING DECREE OF FORECLOSURE, FILED ON NOVEMBER 16, 2016, WHEREIN THE TRIAL COURT FOUND THAT THE PLAINTFF HAD PROVEN THE AMOUNT OF PRINCIPLE AND INTEREST DUE, WAS CONTRARY TO LAW AS THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER OR NOT THE HOMEOWNER HAD SIGNED THE LOST MODIFICATION AGREEMENT WHICH CHANGED THE AMOUNT DUE.

{¶ 24} USHO's claim for damages implicates a loan modification agreement allegedly executed by Young on or about December 16, 2008 (the "Modification Agreement"). First Aff. ¶ 8 and Ex. C. In Exhibit C to the First Affidavit, USHO provides an unexecuted copy of the Modification Agreement along with the affidavit of John Paredes, an "asset manager" in its employ, who avers that the Modification Agreement "increased the original principal amount of the [N]ote * * * from $138,000.00 to $167,844.49 and lowered the original adjustable interest rate from 8.99% to a fixed rate for five years of 3.5%." USHO provided Paredes's affidavit because "[a]fter a thorough and diligent manual search of the hard copy collateral file pertaining to [Young's] loan[,] the original [copy of the Modification Agreement] was not located." Id. Young denies that he executed the agreement. Young Aff. ¶ 5-10.

{¶ 25} R.C. 1303.38(A) states that a "person not in possession of an instrument is entitled to enforce" it only if: (1) the "person * * * was entitled to enforce the instrument when loss of possession occurred or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred"; (2) the "loss of possession was not the result of a transfer by the person or a lawful seizure;" and (3) the person "cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process." USHO acquired the Mortgage and the Note on or about December 30, 2013, roughly five years after the Modification Agreement was allegedly executed. Am. Compl., Ex. B.

{¶ 26} As a threshold matter, we conclude that the trial court erred in its decision to strike Paragraphs 6 through 10 of Young's affidavit. Decision 23. The trial court made this ruling in reliance on Evid.R. 408, which states that "[e]vidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount," and that "[e]vidence of conduct or statements made in compromise negotiations is likewise not admissible." Yet, the "rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations" or "when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing [sic] a contention of undue delay, or proving an effort to obstruct a criminal investigation." Id. Given that USHO is itself relying on the Modification Agreement, which apparently was at least proposed to Young during the course of settlement or compromise negotiations, Young should be allowed to offer evidence contesting USHO's allegation that he executed the agreement.

{¶ 27} Applying R.C. 1303.38 to the Modification Agreement, we find that USHO has failed to demonstrate the absence of any genuine dispute of fact on the material question of whether USHO was entitled to enforce the agreement at the time possession of the original was lost, or had obtained possession of the agreement from "a person who was entitled to enforce [it] when loss of possession occurred." Fry and Paredes cannot have personal knowledge concerning Young's alleged execution of the agreement because USHO did not acquire the Mortgage until December 30, 2013, and USHO has not provided an affidavit from "Homecomings Financial, LLC," the other party listed in the agreement. First Aff., Ex. C. Young's third assignment of error is sustained.

III. Conclusion

{¶ 28} Young's first and third assignments of error are sustained. Accordingly, we reverse the trial court's decision sustaining USHO's motion for summary judgment and remand this matter to the trial court for proceedings consistent with this opinion.

DONOVAN, J. and FROELICH, J., concur.

      The series of endorsements and allonges appears to indicate that Intervale Mortgage Corporation transferred the Note to Decision One Mortgage Company LLC, Ltd.; Decision One Mortgage Company LLC, Ltd. transferred the Note to Residential Funding Company, LLC; Residential Funding Company, LLC transferred the Note to the Bank of New York Trust Company, N.A.; the Bank of New York Trust Company, N.A. transferred the Note back to Residential Funding Company, LLC; and Residential Funding Company, LLC then transferred the Note to CSH Fund IV, LLC. See Am. Compl., Ex. A.

      Construing the words of his affidavit literally, Fry never squarely avers that he saw Exhibit D as part of his "review[ ] [of] certain business files, documents and other business records." See First Aff. ¶ 1 and 9. He did, on the other hand, aver unequivocally that he reviewed the copies of the Mortgage, the Note and the Modification Agreement. Id. at ¶ 8.

      A defective notice of default can theoretically satisfy a mortgagee's obligation to notify the mortgagor in advance of filing a complaint in foreclosure. U.S. Bank, N.A. v. Green Meadow SWS L.L.C. , 2014-Ohio-738, 9 N.E.3d 433, ¶ 26-28 (5th Dist.) (finding that a technically inaccurate or imprecise notice of default provides "constructive notice * * * sufficient to provide proper notice" to a mortgagor). The notice of April 4, 2012, however, is not technically inaccurate or imprecise; it originated from a party who no longer had any interest in the underlying instruments or standing to prosecute a foreclosure action against Young.

      The trial court did not err in its decision to strike Paragraphs 11 through 15 of the affidavit.