[Cite as OneWest Bank, FSB v. Albert,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

ONEWEST BANK, FSB : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2013CA00180 : DIANA L. ALBERT : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, General Division Case No. 2011CV03450

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: May 12, 2014

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

MONICA LEVINE LACKS MARK E. OWENS DUSTIN D. GODENSWAGER J.P. AMOURGIS & ASSOCIATES MCGLINCHEY STAFFORD LLC 3200 W. Market St., Suite 106 25550 Chagrin Blvd., Suite 406 Akron, OH 44333 Cleveland, OH 44122 Stark County, Case No. 2013CA00180 2

Delaney, J.

{¶1} Defendant-Appellant Diana L. Albert appeals the August 6, 2013 judgment

entry of the Stark County Court of Common Pleas, General Division. Plaintiff-Appellee is

OneWest Bank, FSB.

FACTS AND PROCEDURAL HISTORY

{¶2} On June 26, 2006, Defendant-Appellant Diana L. Albert executed a Note

in the amount of $84,000.00. The Note was secured by a Mortgage on real property

located at 2512 - 12th Street N.W., Canton, Ohio 44708. The lender was Quicken

Loans, Inc.

{¶3} Quicken Loans, Inc. endorsed the Note to IndyMac Bank, F.S.B. IndyMac

Bank F.S.B. endorsed the Note in blank. IndyMac is a division of OneWest Bank. On

October 14, 2011, Mortgage Electronic Registrations Systems, Inc., as nominee for

Quicken Loans, Inc. assigned the Mortgage to Plaintiff-Appellee OneWest Bank, FSB.

OneWest Bank is in possession of the Note and Mortgage.

{¶4} On October 27, 2011, OneWest Bank filed a complaint in foreclosure

against Albert. The complaint alleged Albert was in default of the terms of the Note and

Mortgage. OneWest Bank attempted to serve the complaint on Albert at the 12th Street

property address listed in the Note and Mortgage. OneWest Bank failed to obtain

service on Albert at the 12th Street address. On December 28, 2011, OneWest Bank

completed service on Albert at an address located at 51st Street, Canton, Ohio.

{¶5} Albert filed a motion for leave to plead on January 19, 2012 and her

answer was filed on February 10, 2012. Relevant to this appeal, Albert raised as an

affirmative defense in her answer that OneWest Bank “failed to give the proper and Stark County, Case No. 2013CA00180 3

requisite notices to Defendant pursuant to RESPA and the terms of the Note and

Mortgage.”

{¶6} On June 15, 2012, the case was placed on an automatic bankruptcy stay.

The case was returned to the active docket on November 15, 2012.

{¶7} OneWest Bank filed a motion for summary judgment on November 13,

2012. In support of its motion for summary judgment, OneWest Bank submitted the

affidavit of Lisa Marie Gonzalez, assistant secretary for OneWest Bank. She averred

that she had personal knowledge of the file and loan history of Albert’s Note and

Mortgage held and serviced by OneWest Bank. Gonzalez stated that on August 31,

2011, One West Bank provided Albert with written notice of default and informed her of

OneWest Bank’s intent to accelerate the debt. A copy of the August 31, 2011 default

notice was attached to Gonzalez’s affidavit as Exhibit D. The default notice letter states

that IndyMac Mortgage Services, a Division of OneWest Bank, sent the written default

notice by first-class certified mail to Albert at the 51st Street address.

{¶8} Albert responded to the motion for summary judgment. She argued there

was a genuine issue of material fact whether OneWest Bank was entitled to judgment in

foreclosure because OneWest Bank failed to meet all the conditions precedent under

the Note and Mortgage. Albert submitted her affidavit stating she never received written

notice of default and the intent to accelerate the debt.

{¶9} On July 23, 2013, the trial court granted OneWest Bank’s motion for

summary judgment. On August 6, 2013, the judgment entry granting the motion for

summary judgment and decree in foreclosure were filed. It is from this judgment Albert

now appeals. Stark County, Case No. 2013CA00180 4

ASSIGNMENTS OF ERROR

{¶10} Albert raises two Assignments of Error:

{¶11} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO THE PLAINTIFF/APPELLEE ONEWEST BANK, FSB, AS PLAINTIFF’S AFFIDAVIT

WAS DEFECTIVE AND INADMISSIBLE UNDER CIV.R. 56(E).

{¶12} “II. THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY

JUDGMENT TO THE PLAINTIFF/APPELLEE ONEWEST BANK, AS THERE WERE

GENUINE ISSUES OF MATERIAL FACT REMAINING AND THE PLAINTIFF WAS

NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW.”

ANALYSIS

I. and II.

Standard of Review

{¶13} We consider Albert’s two Assignments of Error together because they

raise interrelated issues. Albert’s two Assignments of Error regard the trial court’s grant

of summary judgment in favor of OneWest Bank. We refer to Civ.R. 56(C) in reviewing a

motion for summary judgment which provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleading,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence in the pending case 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. * * * A summary judgment shall not be rendered unless it

appears from such evidence or stipulation and only from the evidence or Stark County, Case No. 2013CA00180 5

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, such party being entitled to have the

evidence or stipulation construed most strongly in the party's favor.

{¶14} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party's claim. Dresher v. Burt,

,

(1996). The nonmoving party then has a reciprocal burden of specificity and cannot

rest on the allegations or denials in the pleadings, but must set forth “specific facts” by

the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler,

,

(1988).

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

if it appears a material fact is genuinely disputed. Vahila v. Hall,

,

(1997), citing Dresher v. Burt,

,

(1996).

Notice of Default and Acceleration

{¶16} In Albert’s first Assignment of Error, she argues OneWest Bank failed to

establish, as a matter of law, that it complied with the applicable notice requirements

necessary to accelerate the payments due under the Note and Mortgage. We disagree.

{¶17} Albert first argues that OneWest Bank failed to comply with the notice

provisions contained in 24 CFR 201.50(a) and 24 CFR 203.604(b), which require the

lender to contact the borrower in a face-to-face meeting in a specified time frame to Stark County, Case No. 2013CA00180 6

discuss the default and to seek its cure. Where the mortgage at issue is federally

insured and therefore subject to HUD regulations regarding default or accelerations, the

requirements found in those regulations are conditions precedent to foreclosure. Wells

Fargo Bank v. Gerst, 5th Dist. Delaware No. 13 CAE 05 0042,

; BAC

Home Loans Servicing, LP v. Taylor, 9th Dist. Summit No. 26423,

.

{¶18} In the present case, there is no Civ.R. 56 evidence to demonstrate that

Albert’s Mortgage is federally insured. Albert’s Mortgage is a conventional loan and is

not subject to federal housing regulations regarding notice, default, and acceleration.

Albert may not rely upon such regulations as a defense to the foreclosure action where

the regulations have no application to her Mortgage with OneWest Bank. U.S. Bank

Natl. Assn. v. Martz, 11th Dist. Portage No. 2013-P-0028,

, ¶16 citing

Fifth Third Mtge. Co. v. Orebaugh, 12th Dist. Butler No. CA2012–08–153, 2013–Ohio–

1730, ¶ 33 and Chase Home Fin. LLC v. Middleton, 5th Dist. Fairfield No. 12 CA 10,

2012–Ohio–5547, ¶ 32.

{¶19} Albert next argues there is a genuine issue of material fact as to whether

OneWest Bank satisfied the condition precedents found in the Note and Mortgage

regarding notice of default and acceleration.

{¶20} Paragraph 15 of the Mortgage reads:

Notices. All notices given by Borrower or Lender in connection with this

Security Instrument must be in writing. 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. * * * The Stark County, Case No. 2013CA00180 7

notice address shall be the Property Address unless Borrower has

designated a substitute notice address by notice to Lender. * * *

{¶21} The notice provision of Paragraph 22 of the Mortgage provides:

Acceleration; Remedies. Lender shall give notice to Borrower prior to

acceleration following Borrower’s breach of any covenant or agreement in

this Security Instrument (but not prior to acceleration under Section 18

unless Applicable Law provides otherwise). The notice shall specify: (a)

the default; (b) the action required to cure the default; (c) a date, not less

than 30 days from the date the notice is given to Borrower, by which the

default must be cured; and (d) that failure to cure the default on or before

the date specified in the notice may result in acceleration of the sums

secured by this Security Instrument, foreclosure by judicial proceeding and

sale of the Property. The notice shall further inform Borrower of the right to

reinstate after acceleration and the right to assert in the foreclosure

proceeding the non-existence of a default or any other defense of

Borrower to acceleration and foreclosure.

{¶22} Albert stated in her affidavit submitted with her response to the motion for

summary judgment that she did not receive written notice of default and acceleration

from OneWest Bank. The affidavit of Lisa Marie Gonzalez, assistant secretary of

OneWest Bank, averred that on August 31, 2011, OneWest Bank mailed written notice

of default and acceleration to Albert pursuant to the terms of the Note and Mortgage.

The August 31, 2011 written notice of default and acceleration was attached to

Gonzalez’s affidavit as Exhibit D. The letter shows it was sent by first-class certified Stark County, Case No. 2013CA00180 8

mail. OneWest Bank did not mail the notice of default and acceleration to the mortgage

property address located on 12th Street, but rather to Albert’s 51st Street address.

OneWest Bank later obtained service of the foreclosure complaint upon Albert at the

same 51st Street address. The letter was mailed on August 31, 2011, more than 30

days before filing the foreclosure action. We find there is no genuine issue of material

fact that OneWest Bank satisfied its duty to provide Albert with notice of default and

acceleration pursuant to the terms of the Note and Mortgage. Further, this Court has

recently held after interpreting a similarly written notice provision that there was no

requirement that the borrower actually receive the notice. Citimortgage, Inc. v. Cathcart,

5th Dist. Stark No. 2013CA00179,

.

Personal Knowledge

{¶23} Albert contends that Gonzalez’s affidavit failed to satisfy the requirement

of Civ.R. 56(E) that affidavits must be made on personal knowledge with respect to the

attached documents’ admissibility as records of regularly conducted activity pursuant to

Evid.R. 803(6).

{¶24} Evidence Rule 803(6) provides that records of regularly conducted

business activity are admissible, as an exception to the rules of hearsay, if shown to be

such “by the testimony of the custodian or other qualified witness.” The question of who

may lay a foundation for the admissibility of business records as a custodian or other

qualified witness must be answered broadly.

[I]t is not necessary that the witness have firsthand knowledge of the

transaction giving rise to the record. * * * “Rather, it must be demonstrated

that: the witness is sufficiently familiar with the operation of the business Stark County, Case No. 2013CA00180 9

and with the circumstances of the record's preparation, maintenance and

retrieval, that he can reasonably testify on the basis of this knowledge that

the record is what it purports to be, and that it was made in the ordinary

course of business consistent with the elements of Rule 803(6).”

(Citations omitted.) U.S. Bank Natl. Assn. v. Green Meadow SWS, LLC, 5th Dist.

Delaware No. 21 CAE 09 0069, 2013–Ohio–2002, ¶ 49.

{¶25} In the affidavit, Gonzalez avers that the statements made in the affidavit

are based on her personal knowledge and her personal review of the business records

for the Note and Mortgage which are the subject of the action. She stated that in her

capacity as assistant secretary for OneWest Bank, she has access to the loan

documents and loan account records of OneWest Bank, and the affidavit was based on

her personal knowledge obtained from review of the records and from her personal

knowledge of the operation of the maintenance and retrieval of records in OneWest

Bank’s record keeping systems. She stated that loan account records are compiled and

recorded by OneWest Bank in the course of its regularly conducted business activities,

and it is the regular practice of OneWest Bank to make such records. She further stated

that loan account records are made at or near the time of the occurrence of each act or

event affecting the account by persons with knowledge of said act or event, or from

information transmitted by a person with knowledge of acts or events described within

the loan account records. She also averred that the records are kept, maintained and

relied upon in the ordinary course of business activity. From her position as assistant

secretary of OneWest Bank and her statement that she reviewed the documents in the

instant case, it may be reasonably inferred that she has personal knowledge to qualify Stark County, Case No. 2013CA00180 10

the documents as an exception to the hearsay rule as a business document. See

Citimortgage, Inc. v. Cathcart, 5th Dist. No. 2013CA00179,

.

{¶26} Based on the foregoing, the two Assignments of Error of Diana L. Albert

are overruled. The trial court did not err in granting summary judgment in favor of

OneWest Bank on its complaint in foreclosure.

CONCLUSION

{¶27} The judgment of the Stark County Court of Common Pleas, General

Division is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Farmer, J., concur.