[Cite as Macintosh Farms Community Assn., Inc. v. Baker,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102820

MACINTOSH FARMS COMMUNITY ASSOCIATION, INC. PLAINTIFF-APPELLEE

vs.

MARIA BAKER, ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-11-766211

BEFORE: Stewart, P.J., Boyle, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: December 17, 2015 FOR APPELLANTS

Howard Baker, pro se 1100 Fireside Trail Broadview Heights, OH 44147

Maria Baker, pro se 1100 Fireside Trail Broadview Heights, OH 44147

ATTORNEYS FOR APPELLEE

For Macintosh Farms Community Association, Inc.

M. Katherine Bushey Janice E. Zupon Kaman & Cusimano, L.L.C. 50 Public Square, Suite 2000 Cleveland, OH 44113

Thomas M. Coughlin Ritzler, Coughlin & Paglia, Ltd. 1000 IMG Center 1360 East Ninth Street Cleveland, OH 44114

Ted A. Humbert Law Offices of John D. Clunk Co., L.P.A. 4500 Courthouse Drive, Suite 400 Stow, OH 44224

For Deutsche Bank National Trust

John C. Allerding Thompson Hine L.L.P. 3900 Key Center 127 Public Square Cleveland, OH 44114 John B. Kopf Thompson Hine L.L.P. 41 South High Street, Suite 1700 Columbus, OH 43215 MELODY J. STEWART, P.J.:

{¶1} Defendants-appellants Howard and Maria Baker appeal pro se from the trial

court’s decision adopting the recommendation of the magistrate in a foreclosure action.

For the reasons that follow, we affirm.

{¶2} In October 2011, MacIntosh Farms Community Association, Inc. (a

homeowner’s association) filed a complaint seeking to foreclose on a homeowner’s lien

against the Bakers’ Broadview Heights residence. In addition to the Bakers, the

complaint named Deutsche Bank National Trust Company (“Deutsche Bank”) as an

interested party defendant because of a recorded mortgage it held on the property.1 The

Bakers answered the complaint and asserted a counterclaim against the association.

{¶3} On July 25, 2012, Deutsche Bank answered the association’s complaint and

asserted a cross-claim against the Bakers. The cross-claim alleged that Deutsche Bank

National Trust Company, as Trustee for the Certificate holders of Merrill Lynch

Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-MLN1,

was the holder of a promissory note executed by the Bakers, upon which there was due

the sum of $263,909.86 plus interest from January 1, 2008. The cross-claim further

alleged that Deutsche Bank was the holder of a duly recorded mortgage deed on the

Bakers’ Broadview Heights home. The complaint stated that by reason of nonpayment of

the note, Deutsche Bank had accelerated the unpaid balance of the debt that was

The complaint also named Asset Acceptance L.L.C. and Capital One Bank as third-party 1

defendants due to their potential interest in the property. immediately due and owning. The bank asserted that it complied with all conditions

precedent to default and acceleration. Attached to the complaint were copies of the

executed promissory note endorsed in blank and the mortgage evidencing a chain of

assignments that led to Deutsche Bank as the ultimate assignee.

{¶4} On September 24, 2013, the Bakers and MacIntosh Farms entered into a

settlement agreement and voluntarily dismissed their respective lawsuits. On the same

day, the Bakers filed their answer to Deutsche Bank’s cross-claim and in the same

document asserted a cross-claim against the bank alleging, among other things, that the

bank was fraudulently claiming to hold the note and mortgage.

{¶5} On December 13, 2013, Deutsche Bank filed an amended complaint with

leave of court. The amended complaint added third-party defendants, sought reformation

of the deed to include the correct legal description of the Broadview Heights property,

and sought a declaratory judgment as to any claims or rights the third-party defendants

might have against, or to, the property. The Bakers answered the amended complaint on

January 14, 2014. The bank moved for summary judgment on July 1, 2014. The Bakers

filed their brief in opposition to the motion for summary judgment on September 10,

2014.

{¶6} The magistrate issued a decision on the summary judgment motion on

December 18, 2014. In his decision, he found that there were no genuine issues of

material fact and that reasonable minds can come to only one conclusion, which was that

Deutsche Bank was entitled to summary judgment as a matter of law. The magistrate laid out the summary judgment standard for foreclosure actions and then explained how

each of the five elements of that standard had been met.

{¶7} The magistrate found that Deutsche Bank had standing to sue in foreclosure

and that the motion for summary judgment included evidentiary support for each of the

assertions. The magistrate found that the Bakers’ opposition to the bank’s motion for

summary judgment challenging the assignments of the subject mortgage, challenging the

affidavit of Raymond Burks (custodian of the records for the bank’s servicing agent), and

challenging the authenticity of the promissory note, did not raise any genuine issues of

material fact because none of the arguments were supported by evidentiary quality

testimony or materials. Over three weeks later, on January 13, 2015, the Bakers filed

objections to the magistrate’s decision. The trial court entered a final judgment adopting

the magistrate’s decision three days later on January 16, 2015.

{¶8} On appeal, the Bakers raise seven assignments of error. However, because

the Bakers failed to timely object to the magistrate’s decision, see Civ.R. 53(D)(3)(b)(i)

(requiring parties to object to a magistrate’s decision within 14 days of its filing), we can

review the record only for plain error. See Civ.R. 53(D)(3)(b)(iv). Plain errors are

errors in the judicial process that are clearly apparent on the face of the record and are

prejudicial to the appellant. Reichert v. Ingersoll,

,

(1985). In civil cases, appellate courts may recognize plain error only in “extremely

rare cases where exceptional circumstances require its application to prevent a manifest

miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial

proceedings.” Goldfuss v. Davidson,

,

(1997).

{¶9} In their first assignment of error, the Bakers contend that the trial court erred

in granting summary judgment to Deutsche Bank because there existed a genuine issue of

material fact as to whether the bank had standing to sue in foreclosure and was the proper

party in interest at the time it filed the action. According to the Bakers, Deutsche Bank

failed to demonstrate that it had standing to sue, and failed to show that it was the holder

of the note and mortgage. We find no merit to this argument.

{¶10} In a foreclosure action, a party has standing when it has either the mortgage

assigned to it, or it is the holder of the note that is secured by the mortgage. Nationstar

Mtge., L.L.C. v. Wagener, 8th Dist. Cuyahoga No. 101280,

, citing

CitiMortgage, Inc. v. Patterson,

,

, ¶ 21 (8th Dist.)

(where plaintiff failed to establish an interest in the note or mortgage at the time it filed its

foreclosure action, it had no standing to invoke the jurisdiction of the common pleas

court).

{¶11} Here, Deutsche Bank attached to its amended cross-claim a copy of the

promissory note that was endorsed in blank and a copy of the recorded assignments of the

mortgage that established a chain of assignments eventually leading to the assignment of

the mortgage to Deutsche Bank. As the possessor of an instrument endorsed in blank,

Deutsche Bank was a holder entitled to enforce the note. See R.C. 1303.25; R.C.

1301.01(T)(1)(a). {¶12} Deutsche Bank also attached the affidavit of Raymond Burks to reinforce its

standing to file the foreclosure action. In his affidavit, Burks avers that he was an

employee of Nationstar Mortgage, L.L.C., the loan serving agent for Deutsche Bank

National Trust Company, as Trustee for the Certificate holders of Merrill Lynch

Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-MLN1.

Burks stated that in the regular performance of his job functions, he is familiar with the

business records maintained by Nationstar Mortgage, L.L.C., for the purpose of servicing

its mortgage loans. As custodian of the records, he further averred that the records are

kept in the normal course of business, that the information contained in them was created

at or near the time of the events described therein by a person with knowledge of the

events, and that Nationstar Mortgage, L.L.C., often relies on the records in the normal

course of conducting business. Burks then stated that Deutsche Bank was in possession of

the promissory note and mortgage and that the copies attached to the cross-claim and

motion for summary judgment were true and accurate copies of the original note and

mortgage.

{¶13} Burks further averred that he had personal knowledge of the Bakers’ loan

accounts and that the Bakers’ loan was in default in the amount of $263,909.86 plus

interest from January 1, 2008. Burks stated that he has personally examined the

business records in this case, including the Bakers’ mortgage. The affidavit then walks

through all of the mortgage assignments establishing how Deutsche Bank became the

final assignee of the mortgage. Finally, Burks averred that he is able to testify as the custodian of the records that the Notice of Intent to Accelerate, attached to the motion for

summary judgment as exhibit H, is a true and accurate copy of the breach letter that was

mailed to the Bakers on January 11, 2011. Thus, Deutsche Bank met its evidentiary

burden of establishing a sufficient foundation for the admissibility of the relevant loan

documents as business records under Evid.R. 803(6). See Deutsche Bank Natl. Trust Co.

v. Najar, 8th Dist. Cuyahoga No. 98502,

.

{¶14} In their opposition to the bank’s motion for summary judgment, the Bakers

did not submit or refer to any evidence previously introduced that would rebut the

authenticity of the copies of the note and mortgage, or the fact that Deutsche Bank was

entitled to enforce the loan documents. Rather, the Bakers simply bare, unsupported

allegations that the note and mortgage are void or were fraudulently obtained by Deutsche

Bank.2 Because the Bakers failed to raise a genuine issue of fact on the question of

The Bakers did attach several documents to their brief in opposition to the motion for 2

summary judgment. Attached as exhibit A is what appears to be an unauthenticated electronic copy of a U.S. Bank article entitled “The Role of the Corporate Trustee,” exhibit B includes what appears to be an unauthenticated 2010 memo from Deutsche Bank to its investors (that acknowledges certain allegations regarding loan servicer foreclosure practices) and two unauthenticated memos from 2008 and 2010, respectively, from the bank to its loan servicers (that highlights and addresses issues that might arise in foreclosure practices and how those issues should be handled by the servicer), and, exhibit C a payment history of the Bakers’ account that the Bakers maintain is “illegitimate” because it does not contain any explanation or key to the terms and abbreviations used. Exhibits A and B are not evidentiary quality material that would create a genuine issue of material fact. See Civ.R. 56(C); see also Najar at ¶ 34 (stating “‘documents submitted in opposition to a motion for summary judgment which are not sworn, certified, or authenticated by affidavit have no evidentiary value and may not be considered by the court in deciding whether a genuine issue of material fact remains for trial.’” Bank of N.Y. Mellon Trust Co., N.A. v. Unger, 8th Dist. Cuyahoga No. 97315,

). Further, exhibit C is not enough to create a genuine issue of material fact in light of Raymond Burks’s affidavit that states that he has personal knowledge based on his review whether Deutsche Bank was entitled to enforce the note and mortgage, we overrule the

assigned error.

{¶15} The Bakers next contend that the trial court erred in denying their request

for “strict proof” that the note presented was the originally executed note, and not a

computer generated document created solely for the purpose of the foreclosure action.

{¶16} The Bakers believe that because they asserted from the beginning of the

action that the alleged note was falsely created, that the trial court had a heightened

obligation to ensure that the note and mortgage were authentic copies and not copies

generated solely for the purpose of the foreclosure action. It is also clear from their brief

that the Bakers’ belief that the note is not genuine comes from their own inspection of the

note, and a general feeling of unease created by a newspaper article about a U.S.

Department of Justice investigation into whether Deutsche Bank may have been filing

false documents in an unrelated case.3

{¶17} The trial court had no obligation to require the plaintiffs to give “strict

proof” that the note was an authentic copy of the original when Deutsche Bank met its

burden of proving the authenticity of the document by attaching it to the complaint and

including the affidavit of Raymond Burks that averred personal knowledge of the note’s

of the records that the Bakers’ loan has remained unpaid and is in default.

At several times throughout the pendency of this case, the Bakers refer to alleged 3

investigations into Deutsche Bank’s foreclosure practices, the Bakers have not been able to show that the investigations uncovered anything criminal in the way the bank processes their foreclosures, nor have the Bakers been able to connect the investigations to this specific foreclosure action. authenticity. Had the Bakers wished to formally challenge the authenticity of the note,

they could have obtained an expert or other qualified person to inspect the note and give

evidence contrary to the Bank’s.4 We therefore do not find plain error.

{¶18} The Bakers next contend that the trial court erred in denying their motion to

strike the affidavit of Raymond Burks. Burks affidavit complied with the form

requirements of Civ.R. 56(E) because it was made based on personal knowledge, sets

forth facts that would be admissible in court, and shows that he is competent as the

custodian of the business records to testify to the facts contained therein. Thus, we

cannot conclude that the trial court’s denial of the motion to strike was plain error.

{¶19} The fourth assignment of error asserts that the trial court erred in denying

the Bakers’ motion for an evidentiary hearing. We do not agree.

{¶20} Under Civ.R. 56(C), courts are not required to hold an evidentiary hearing

prior to ruling on a motion for summary judgment. Rather, the court has discretion

whether to grant oral hearings on the motion. Gates Mills Invest. Co. v. Pepper Pike, 59

Although not reflected in the record, both Deutsche Bank and the Bakers agree in their 4

briefs that the original note was produced at a hearing on August 7, 2014 (according to the docket, the only hearing that occurred on this date was a default hearing regarding third-party defendants who failed to appear to defend the suit — the appellants have not provided us with a transcript of this hearing or the evidence that was introduced). The magistrate’s decision also states that the original note was produced at a hearing and when offered to the Bakers for inspection, the Bakers refused it. The Bakers contend that they only refused to touch the note because they did not want their fingerprints on it, but would have visually inspected it had the bank’s counsel placed it on the table before them. Regardless of the Bakers’ reasons for failing to inspect the note, it is clear that the trial court did inspect it and was satisfied with its authenticity. Ohio App.2d 155, 164-165,

(8th Dist. 1979). Given the court’s

discretion, we cannot find plain error in the court’s refusal to grant a hearing in this case.

{¶21} The Bakers next contend that the trial court erred “in denying the Bakers’

evidence supporting their assertion they can challenge the assignment of mortgage to

establish the assignee’s lack of title.”

{¶22} In making its determination that the Bakers could not challenge the

mortgage assignment, the trial court relied on Unger, 8th Dist. Cuyahoga No. 97315,

. This case stands for the proposition that a borrower lacks standing to

challenge the assignment of a mortgage, because a borrower is not a party to the

assignment.

“The basis for such a finding is that the assignment does not alter the

[the borrowers] obligations under the note or mortgage.” U.S. Bank N.A. v. Kamal, 7th

Dist. Mahoning No. 12 MA 189,

, citing Unger at ¶ 35.

{¶23} The Bakers argue that the rule of law outlined in Unger does not apply to

them because they are not challenging the assignment based on any alleged breach of

agreement between the parties, rather they are challenging Deutsche Bank’s standing to

sue by attempting to show that the bank fraudulently acquired the mortgage and was

therefore not entitled to enforce the mortgage contract.

{¶24} Although the assignment of error is not clearly worded, the Bakers appear to

be arguing that they provided sufficient evidence of fraud, forgery, or fabrication in

connection with the assignments that there remained a genuine issue of material fact

concerning Deutsche Bank’s standing. In support of this argument, the Bakers contend that it is evident from the face of the mortgage documents that the signatures on the

assignments were forged. The Bakers also argue that the assignment was void due to a

possible conflict of interest in which the representative for the assignor who executed the

assignment may have also worked for the assignee.

{¶25} We cannot conclude that the trial court committed plain error when it denied

the Bakers’ challenge to the assignment of the mortgage. Even if we were to agree that

this court’s decision in Unger, 8th Dist. Cuyahoga No. 97315,

, does

not apply to this case because the Bakers are challenging Deutsche Bank’s standing to sue

due to an alleged invalid assignment, we agree with the court that the Bakers failed to

present sufficient evidence to create a genuine issue of material fact on this issue.

{¶26} Although the Bakers assert that it was evident from the face of the mortgage

documents that the signatures purporting to assign the mortgage to Deutsche Bank were

forged, apparently the magistrate and the trial judge who eventually adopted the

magistrate’s decision did not agree. The Bakers never brought in a handwriting expert or

any other qualified person to contest the authenticity of the signatures. Further, although

the Bakers contend that there may have been a conflict of interest in the assignment that

rendered the assignment void, the Bakers failed to present sufficient evidence to support

that belief.

{¶27} The record reveals that the only evidence the Bakers presented to the court

were unauthenticated excerpts from a deposition of the Senior Vice President of

Merscorp, William Hultman, who testified that MERS (the assignor in the present case) has no employees. This deposition was not taken in connection with Bakers’ case, but

was taken for a completely different 2010 case. Therefore, we overrule this assignment

of error.

{¶28} The sixth assignment of error asserts that the trial court erred by accepting

as evidence any and all documents presented by Deutsche Bank, while refusing to accept

the same documents as evidence when the Bakers referred to them. The Bakers also

argue that the trial court erred in “deeming any and all documents submitted as evidence

by the Bakers insufficient as evidence.” We find no merit to this argument. The record

reveals that much of the evidence the Bakers submitted was not self-authenticating or

accompanied by an authenticating affidavit as required by Civ.R. 56(C). Furthermore,

while the Bakers at times either referred to, or submitted, some of the same evidence as

Deutsche Bank, (such as the payment history and the affidavit of Raymond Burks), the

Bakers’ reference to or introduction of this evidence was for the sole purpose of attacking

its authenticity. At no point did the Bakers present expert testimony to attack the

authenticity, and the Bakers’ facial attacks on the evidence did not rise to the level of

creating a genuine issue of material fact. Therefore, we do not find that the court

committed plain error when it found the Bakers’ evidence insufficient.

{¶29} Finally, the Bakers contend that the trial court erred when it relied on a

single case when making its decision, while ignoring “numerous rulings that support the

Bakers’ pleadings.” This sentence does not indicate to us which case the Bakers believe

that the court erroneously relied on in its ruling, or the cases that would otherwise support their pleadings. Our review of the record reveals that the court’s decision cites to several

different cases in support of its analysis. Therefore, without more, we summarily

overrule this assignment of error.

{¶30} Judgment affirmed.

It is ordered that the appellee recover of said appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ MELODY J. STEWART, PRESIDING JUDGE

MARY J. BOYLE, J., and SEAN C. GALLAGHER, J., CONCUR