Montgomery County Common Pleas Court E s 2 5 é (alta oy AN At IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY HSBC BANK USA, N.A., TRUSTEE, + CASENO. 2007 CV 9439 Plaintiy, (A.J. Wagner) a (Magistrate Cowdrey) JAMIE THOMPSON, ADMINISTRATRIX, : DECISION, ORDER, AND ENTRY ET AL., : OVERRULING PLAINTIFF'S : OBJECTIONS TO THE Defendants. : MAGISTRATE’S DECISION This matter is before the Court on the objections filed to the Magistrate's May 15, 2009 decision. Plaintiff filed its objections on May 29, 2009. On Jun 19, 2009, Defendant filed a memorandum in opposition to plaintiff's objections. On August 19, 2009, Plaint filed a Reply Memorandum. This matter is now properly before the Court. I. PROCEDUAL HISTORY Plaintiff filed a Motion for Summary Judgment on its Complaint for Foreclosure and the Counterclaim filed by Defendants, Plaintiff provided an Affidavit of Chomie R. Neil, a promissory note dated January 24, 2007 between Fidelity Mortgage and Howard W. Tumer, a mortgage between Fidelity Mortgage and Howard W. Turner and an Assignment of Mortgage between Fidelity Mortgage and HSBC dated November 14, 2007. Defendant filed a Motion to Strike theAffidavit of Chomie R. Neil and a Motion for Partial Summary Judgment requesting a dismissal of Plaintiffs Complaint without prejudice. H. FACTS. The Magistrate granted Defendant's Motion to Strike the Affidavit of Chomie R. Neil. The ‘Affidavit was sworn to in the State of New Jersey but signed in Florida and notarized by a Notary in the State of New Jersey. Further, the Magistrate found that because he granted Defendant's Motion to Strike the Neil Affidavit, Plaintiff failed to demonstrate the absence of a genuine issue of material fact. The Magistrate overruled Plaintiff's Motion for Summary Judgment as to the promissory note and foreclosure of the mortgage. Additionally, the Magistrate found there was no evidence properly before him to establish that Plaintiff is the holder of the promissory note originally executed by Howaid W. Tumer to Fidelity Mortgage. itis undisputed that the mortgage was assigned to Plaintiff one week after the institution of the case at bar. The Magistrate granted Defendant's Motion for P Summary Judgment and dismissed Plaintiff's Complaint without prejudice. Moreover, the ‘Magistrate found that there remain genuine issues of material fact as to whether HSBC violated provisions of the Fair Debt Collections Practices Act and overruled HSBC’s Motion for Summary Judgment as to Thompson’s Counterclaim, Plaintiff raises three objections to the Magistrate's decision. First, allowing a scrivener's error to dictate summary judgment elevates form over substance. Second, the Magistrate failed to consider thatthe Not is a negotiable instrument frely transferable under the Uniform Commercial Céde. ‘Third, the pleadings establish HSBC Bank’s status as the real party in interest and preclude Defendant's motion for summary judgment. On the other hand, Defendants asserts that the Magistrate was correct in striking the Neil affidavit because of its defects and without an affidavit Plaintiff failed to establish any fact upon which the Magistrate could rule in its favor. Ill, LAW AND ANALYSIS A. STANDRAD OF REVIEWWhere objections are filed to a magistrate’s decision, the trial court has the duty to conduct, an independent review of the magistrate’s findings of fact and conclusions of law.' The trial court’s. role is to determine whether the magistrate has properly determined the factual issues and appropriately applied the law and, where the magistrate has failed to do so, the trial court must substitute its judgment for that of the magistrate.” The magistrate’s decision should not be adopted unless the trial court independently reaches the same findings of fact and conclusions of law.? _ B. CHOMIE R. NEIL AFFIDAVIT A scrivener’s error is defined as an error resulting from a minor mistake or inadvertence in writing,’ “An affidavit is a written declaration under oath, made without notice to the adverse party.” However, “the format of the affidavit does not affect the existence of facts based upon the affiant’s personal knowledge.” In the instant case, the errors in this affidavit are more than format errors. The statements Were sworn to a notary ina state outside of the notary’s jurisdiction. This error tums the document into an unswom statement which can not be used for summary judgment purposes. The Court hereby overrules Plaintiff's objection regarding the affidavit of Chomie Neil. c UMMARY JUDGMENT “Trial courts should award summary judgment with caution.”” In Harless v, Willis Day Warehousing Inc. (1978), the Ohio Supreme Court stated in order for summary judgment to be appropriate, it must appear that: (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 1 Hart v. Munobe (1993), 67 Ohio St.3d 3. 2 Coronet Ins. Co. v. Richards (1991), 76 Ohio App.3d 578. § DeSantis v, Soller (1990), 70 Ohio App.3d 226. * Black's Law Dictionary (7 Ed. 1999) 663. ® Chase Manhattan Mortgage Corp. v Locker (2003), 2003 Ohio 6665, citing R.C. 2319.02. Sig eng Boros v Oras (1988), 1983 Ohio App. LEXIS 4473, "9 Harty Manabe (1993), 61 Oho 1383.(3) Reasonable minds can come to but one conclusion and that conclusion is adverse (0 the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.* ‘The moving party bears the burden of informing the court of the basis of the motion and identifying those portions of the pleadings, depositions and other such material which it believes demonstrates the absence of a genuine issue of material fact.? The burden on the moving party may be satisfied by "showing" that there is an absence of evidence to support the non-moving party's case.'" Furthermore, any inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion." ‘Thereafier, the non-moving party bears the burden of coming forward with specific facts and evidence showing that there is a genuine issue of material fact for trial.'? The non-moving party has the burden "to produce evidence on any issue for which that party bears the burden of production at trial.""? Therefore, the non-moving party may not rest upon unsworn or unsupported allegations in the pleadings.'* The non-moving party must respond with affidavits or other ence to controvert the facts established by the moving party.'* Further, the non- appropriate e moving party must do more than show there is some metaphysical doubt as to the material facts of the case." i, HSBC’s Motion for Summary Judgment Here, absent the affidavit of Chomie Neil, Plaintiffs have failed to provide support their Motion for Summary Judgment. The Court hereby overrules Plaintiff's objection regarding their motion for summary judgment. 54 Ohio St.24 64, 66 ® Misteffv. Wheeler (1988), 38 Ohio S136 112, 114. 1 Celotex Corp, v. Catrett (1986), 477 US. 317, 323-325, Leibroich, 67 Ohio S34 266, 269 £8 VanFossen . Babcock & Wilson Co. (1988), 36 Ohio St34 100, 117, ® Leibrech, 67 Ohio Std a 269 “Benjamin . Deffet Rentals (1981), 66 Ohio S128 86 id © Matsushita Electric Ind. Co. . Zenith Radio (1980), 475 US. 574,ii, Thompson’s Motion for Partial Summary Judgment In the instant case, Plaintiff has provided no evidence that it was in possession of the Note prior to the fling of the Complaint, The Neil Affidavit provides the date of March 29, 2007. However, the Neil Affidavit has been stricken as evidence. Further, the Jeyes Affidavit provides no evidence as to the date of the allonges. Moreover, it only verifies the Mortgage and the Note as true copies not the undated allonges. IV. CONCLUSION Upon review and consideration, Plaintiff's Objections are OVERRULED. The Court adopts the decision of the Magistrate in its entirety. Accordingly, the Court orders: 1) The Motion for Summary Judgment of Plaintiff HSBC Bank USA N.A. against Defendant Jamie W. Thompson, Individually and as Administrator of the Estate of Howard W. ‘Turner, is hereby DENIED; and 2) The Motion for Partial Summary Judgment by Defendant Jamie W. Thompson, Individually and as Administrator of the Estate of Howard W. Turner, is GRANDTED to the effect that the Complaint of Plaintiff HSBC Bank USA N.A. is DISMISSED without prejudice; and 3) Counsel for the Respective parties are to attend a telephone scheduling conference with the undersigned Magistrate to discuss the Counterclaim filed by Jamie W. Thompson, Individually and as Administrator of the Estate of Howard W. Turner. THIS IS A FINAL APPEALABLE ORDER, AND THERE IS NOT JUST REASON FOR DELAY FOR PURPOSES OF CIV. R. $4. PURSUANT TO APP. R. 4, THE PARTIES SHALL FILE A NOTICE OF APPEAL WITHIN THIRTY (30) DAYS.SO ORDERED Copies of the above were sent to all parties listed below by ordinary mail this date of filing BEN CARNAHAN ATTORNEY AT LAW 4805 MONTGOMERY ROAD NORWOOD, OH 45212 Attorney for Plaintiff ANDREW ENGEL ATTORNEY AT LAW 3077 KETTERING BLVD., SUITE 109 MORAINE, OH 45439 TINA M. LOONEY, BAILIFF (937) 225-4409