IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO. PNC BANK, NATIONAL ASSOCIATION, Plaintiff, : Case No. 16 CV 137. v.

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1 IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO PNC BANK, NATIONAL ASSOCIATION, Plaintiff, : Case No. 16 CV 137 v. : Judge Berens : JONATHAN B. BROOKS, ET AL., : Entry Regarding Plaintiff s Motion for Summary Judgment Defendants. : This matter is before the Court upon PNC Bank, National Association s ( Plaintiff ) Motion for Summary Judgment filed June 23, 2016, Jonathan B. Brooks, et al s ( Defendant ) Response thereto, and Plaintiff s Response thereafter. Based on the foregoing the Court GRANTS Plaintiff s Motion for Summary Judgment. Ohio Civ. R. 56(A) and (B) permit both plaintiffs and defendants to move for summary judgment on all or part of any claim. Summary judgment is appropriate 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) 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. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46, 47 (1978). The party moving for summary judgment has the initial burden of demonstrating the absence of any genuine issues of material fact, and must specifically delineate the basis for which summary judgment is sought in order to allow the opposing party a meaningful opportunity to respond. Mitseff v. Wheeler, 38 Ohio St. 3d 112, 116, 526 N.E.2d 798, 802 (1988); Dresher v. Burt, 75 Ohio St. 3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264, 274. In so doing, the moving party cannot rest on bare conclusory assertions that the non-movant lacks evidence or cannot Page 1 of 5

2 prove her case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ. R. 56(C)[.] Dresher, at 293. If the moving party fails to meet its burden, summary judgment is inappropriate; however, if the moving party meets its initial burden, the burden then shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Id. at 294. If the non-movant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Id; Egli v. Cong. Lake Club, 5th Dist. No CA-00216, 2010-Ohio-2444 (June 1, 2012), appeal not allowed, 126 Ohio St. 3d 1600, 2010-Ohio-4928, 935 N.E.2d 46; Ohio Civ. R. 56(E) ( [A]n adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.). In its Motion for Summary Judgment and Response the Plaintiff relies heavily on the affidavits of its employees Barbara Wacker and Gaynelle Bronson and concludes it is entitled to summary judgment with respect to foreclosure of the mortgage. The Defendants submit that conditions precedent laid out in the Note and Mortgage concerning notice of default and acceleration of the debt have not been satisfied and reason this remaining issue should be resolved at trial. I. THE PLAINTIFF IS ENTITLED TO FORECLOSE THE MORTGAGE [I]n order 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.) all conditions precedent have been met; 4.) the mortgagor is in default; and 5.) the amount of principal and interest due. Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. Stark No CA-00291, Ohio-3203, Page 2 of 5

3 The Plaintiff supports its Motion for Summary Judgment and Response with the affidavits of its employee Barbara Wacker and Gaynelle Bronson, which incorporate by reference certain exhibits including the Note, Mortgage, Loan Modifications, Notices of Default, and a State of Ohio Certificate. The affiants, Plaintiff s employees, are over the age of eighteen and base their testimony on personal knowledge and experience with the creation and maintenance of Plaintiff s business records. Affidavit of Status of Account; Supplemental Affidavit of Status of Account, collectively ( Affidavits ). Defendants argue the affiants, especially Wacker, did not make her statement based on personal knowledge, but has offered no evidence to substantiate this assertion 1. Together, the testimony presented in each notarized affidavit identifies the material documents as true and accurate copies of the originals and avers a series of facts, despite that Defendants dispute the same. Wachovia Bank of Delaware, N.A. v. Jackson, 2011-Ohio- 3203, (5th Dist. Stark). As such, the Court finds both affiants are competent to provide testimony in this manner in support of Plaintiff s Motion via affidavit for the purposes of Civ. R. 56(C). The Plaintiff is the holder of both the Note and Mortgage referenced in its Affidavits and purportedly signed by the Defendants. The original lender stated in both the Note and the Mortgage is PNC Mortgage, a division in Plaintiff s organization registered to the same which is confirmed by the State of Ohio Certificate. This certificate affirms Plaintiff s custody of PNC Mortgage s business records as of January See Affidavit of Status of Account, State of 1 The affidavits must show: 1.) the affiant is competent to testify; 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; 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; 5.) and the affidavit must be notarized. Wachovia Bank of Delaware, N.A. v. Jackson, 2011-Ohio-3203, (5th Dist. Stark). Page 3 of 5

4 Ohio Certificate, pgs Further, Loan Modifications were executed by the Defendants and the Plaintiff, rather than its subdivision. Affidavit of Status of Account, Loan Modification Agreement of 2/1/2014; 12/1/2014 These Loan Modifications expressly confer the right to enforce the terms of the modification regarding the underlying Note and Mortgage. Id. Therefore, the Court finds the Plaintiff is the holder of the Note and Mortgage entitled to enforce their respective terms. The Defendants argue the Plaintiff has not satisfied all conditions precedent, namely that the Plaintiff failed to provide notice of default and acceleration of the debt, in compliance with paragraphs 15 and 22 of the Mortgage before initiating foreclosure proceedings. Defendants Memo. Contra., at pgs In pertinent part, paragraphs 15 and 22 require that the debtor shall be informed via first class mail, or otherwise, with notice specifying: (1) default, (2) action required to cure the default, (3) a date, not less than 30 days from the date the notice is given to the Borrower, by which the default must be cured, (4) that failure to cure the default by the specified date may result in the acceleration of the debt and foreclosure of the property in question, (5) that the debtor has the right to reinstate after acceleration. Affidavit of Status of Account, 7/25/2011 Mortgage, para. 15; 22. The Affidavits contain copies of Notices, which Plaintiff asserts were sent to Andrea D. Lewis and Jonathan B. Brooks via first class mail on November 23, Defendants admit Defendant Lewis received the Notice, but that the letter itself is unclear and that Defendant Brooks never received a copy. Upon review of the Mortgage s requirements the Court finds the Notice is sufficiently clear and meets the requirements set out in paragraph 15 and 22, to which the Defendants assented. Despite the claim that only Defendant Lewis received the Notice, the Mortgage at paragraph 15 states notice to one Borrower shall constitute notice to all Page 4 of 5

5 Borrowers Further, case law on the subject of acceleration notices instructs that the mailing, not receipt of notice satisfies the condition precedent. Wells Fargo Bank, N.A. v. Dawson, Ohio-269, 16 (5th Dist. Stark). Based on Defendant Lewis receipt of the Notice, proper notice of default and possible acceleration was provided to the Defendants per the terms of the Mortgage. Therefore, the Court finds that that all conditions precedent are satisfied. As the basis for this foreclosure the Plaintiff asserts the Defendants are in default of the terms of the Note and Mortgage due to non-payment from September 1, 2015 to the present, with a total loan amount due and owing of $131, plus interest at the rate of 4.5% per annum as prayed for in the Complaint and stated in Plaintiff s Motion. Once put on notice of the default, the Defendants did not cure the default nor did they attempt to reinstate the payments after acceleration commenced. Therefore, the Plaintiffs have shown the Defendants to be in default with a loan balance of $131, plus interest. Based on the record before it taken in the light most favorable to the non-moving party the Court finds there are no genuine issue of material fact, that the Plaintiff is entitled to judgment as a matter of law, and that reasonable minds can come but to one conclusion adverse to the Defendants. Therefore, the Court GRANTS Plaintiff s Motion for Summary Judgment. IT IS SO ORDERED. This is a final appealable order. There is no just cause for delay. Judge Richard E. Berens Copies to: Joshua J. Epling, Esq., 7550 Paragon Rd., Dayton, OH Robin L. Jindra, Esq., 33 S. James Rd., 3rd Floor, Columbus, OH PNC Bank, NA as Successor by Merger, 3232 Newmark Dr., Miamisburg, OH Fairfield County Treasurer, 210 E. Main St., Rm. 206, Lancaster, OH Page 5 of 5

IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO. Plaintiff, : Case No. 15 CV 030. v. : Judge Berens

IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO DITECH FINANCIAL, LLC, : Plaintiff, : Case No. 15 CV 030 v. : Judge Berens WILLIE T. CONLEY, ET AL., : Entry Regarding Plaintiff s Motion for Summary