[Cite as BAC Home Loans Servicing, LP v. Moore,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: BAC HOME LOANS SERVICING, LP : W. Scott Gwin, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 12 CA 50 : : CHARLES MOORE, et al., : OPINION

Defendants-Appellants

CHARACTER OF PROCEEDING: Civil Appeal from Licking County Court of Common Pleas Case No. 11 CV 0934

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: December 24, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

ERIC T. DEIGHTON JOHN SHERROD C. SCOTT CASTERLINE Mills, Mills, Fiely & Lucas, LLC Carlisle, McNellie, Rini, Kramer 503 South Front Street, Suite 240 & Ulrich, Co., LPA Columbus, Ohio 43215 24755 Chagrin Blvd., Suite 200 Cleveland, Ohio 44112 [Cite as BAC Home Loans Servicing, LP v. Moore,

.]

Edwards, J.

{¶1} Appellants, Veronica and Charles Moore, appeal a summary judgment of

the Licking County Common Pleas Court. Appellee is BAC Home Loans Servicing, L.P.

STATEMENT OF FACTS AND CASE

{¶2} On July 14, 2012, appellee filed the instant foreclosure action. Appellee

filed a motion for summary judgment. Appellants filed a memorandum contra the

motion for summary judgment, arguing that questions of fact existed as to whether the

notice condition precedent was satisfied and whether the note and mortgage were

separated. Appellants also argued that appellee failed to submit an authenticated copy

of the note in support of its motion for summary judgment.

{¶3} The trial court granted the motion for summary judgment and granted

appellee a judgment of foreclosure. Appellants assign a single error on appeal:

{¶4} “THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION FOR

SUMMARY JUDGMENT GIVEN THAT APPELLEE DID NOT ATTACH A COPY OF

THE APPLICABLE PROMISSORY NOTE IT ALLEGED IT HELD TO ITS MOTION FOR

SUMMARY JUDGMENT.”

{¶5} This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

{¶6} (E) Determination and judgment on appeal. The appeal will be determined

as provided by App. R. 11.1. It shall be in sufficient compliance with App. R. 12(A) for

the statement of the reason for the court's decision as to each error to be in brief and

conclusionary form. The decision may be by judgment entry in which case it will not be

published in any form. Licking County App. Case No. 12 CA 50 3

{¶7} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusionary decision more quickly than in a case

on the regular calendar where the briefs, facts and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn.,

,

(10th

Dist. 1983). This appeal shall be considered in accordance with the aforementioned

rule.

{¶8} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc.,

(1987). As such, we must

refer to Civ. R. 56(C) which provides in pertinent part: “Summary Judgment shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,

timely filed in the action, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law. No evidence or

stipulation may be considered except as stated in this rule. A summary judgment shall

not be rendered unless it appears from the evidence or stipulation, and only from the

evidence or stipulation, that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence or stipulation construed most

strongly in the party’s favor.”

{¶9} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for its motion Licking County App. Case No. 12 CA 50 4

and identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact. The moving party may not make a conclusory assertion that the

non-moving party has no evidence to prove its case. The moving party must specifically

point to some evidence which demonstrates that the moving party cannot support its

claim. If the moving party satisfies this requirement, the burden shifts to the non-moving

party to set forth specific facts demonstrating that there is a genuine issue of material

fact for trial. Vahila v. Hall,

,

, citing Dresher v.

Burt,

,

.

{¶10} This Court has held that in order to support a motion for summary

judgment in a foreclosure action, a plaintiff must present evidentiary-quality materials

showing the following:

{¶11} “1.) The movant is the holder of the note and mortgage, or is a party

entitled to enforce the instrument;

{¶12} “2.) if the movant is not the original mortgagee, the chain of assignments

and transfers;

{¶13} “3.) all conditions precedent have been met;

{¶14} “ 4.) the mortgagor is in default; and

{¶15} “5.) the amount of principal and interest due.” Wachovia Bank of

Delaware v. Jackson, 5th Dist. No. 2010-CA-00291,

.

{¶16} An affidavit must demonstrate the following:

{¶17} “1.) the affiant is competent to testify; Licking County App. Case No. 12 CA 50 5

{¶18} “2.) the affiant has personal knowledge of the facts, as shown by a

statement of the operant facts sufficient for the court to infer the affiant has personal

knowledge;

{¶19} “3.) the affiant must state he or she was able to compare the copy with the

original and verify the copy is accurate, or explain why this cannot be done; and

{¶20} “4.) the affidavit must be notarized.” Id. at ¶47-50.

{¶21} In addition, any documents the affidavit refers to must be attached to the

affidavit or served with the affidavit, and the documentary evidence must be:

{¶22} “1.) certified copies of recorded documents; or

{¶23} “2.) if business records, must be accompanied by an affidavit attesting that

they are business records kept in the regular course of business;

{¶24} “3.) the affiant must be familiar with the compiling and retrieval of the

records;

{¶25} “4.) the affiant must state the records are compiled at or near the

occurrence of each event by persons with knowledge of said events; and

{¶26} “5.) the records must be authenticated by the custodian of the records or

by another witness who has personal knowledge of the records.” Id. at ¶53-57.

{¶27} In the instant case, a copy of the note was attached to the complaint. This

note is not authenticated. In support of its summary judgment motion, appellee

submitted the affidavit of Justin Nicole Hillberry, an officer of appellee. While the

affidavit states that appellee has possession of the note and that the business records

attached to the affidavit are true and accurate copies of the original, a copy of the note

is not attached to the affidavit. She does not attempt to authenticate the note attached Licking County App. Case No. 12 CA 50 6

to the complaint or to incorporate it by reference. Appellee therefore failed to properly

support its motion for summary judgment according to the guidelines set forth by this

Court in Wachovia Bank v. Jackson, supra.

{¶28} The assignment of error is sustained.

{¶29} The judgment of the Licking County Common Pleas Court is reversed.

This cause is remanded to that court for further proceedings according to law.

By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/rad1004 [Cite as BAC Home Loans Servicing, LP v. Moore,

.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

BAC HOME LOANS SERVICING, LP : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : CHARLES MOORE, et al., : : Defendants-Appellants : CASE NO. 12 CA 50

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Licking County Court of Common Pleas is reversed. This cause is

remanded to the trial court for further proceedings according to law. Costs assessed to

appellee.

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JUDGES