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The Ohio Court of Appeals for the Ninth Judicial District reversed a summary judgment based upon CitiMortgage's

failure to satisfy conditions precedent in the case CitiMortgage, Inc. v. Elia: CitiMortgage, Inc. v. Elia, No. 25482, 2011 Ohio 2499 (Oh. App. 9th Dist, 2011) http://www.sconet.state.oh.us/rod/docs/pdf/9/2011/2011-ohio-2499.pdf Although the decision turned on CitiMortgage's failure to prove compliance with conditions precedent in respect of Section 22 of the mortgage, the case also has some additional insight on evidentiary issues. First, the Court implicitly NOTED that the plaintiff had not properly authenticated ANY of its documentary evidence, but that the defendant had FAILED TO OBJECT: "In support of its motion for summary judgment, CitiMortgage relied on the affidavit of Aaron Menne, who identified himself as its vice president. Menne averred that he had custody of and familiarity with the records of the payments on the account of Ziad F. Elia. Menne further averred that the September 1, 2008 payment was the last one received on the account and, due to a default thereafter, [CitiMortgage] *** elected to call the entire balance of said account due and payable, in accordance with the terms of the note and mortgage. The affidavit then noted the amount due and owing on the loan and the applicable interest rate. CitiMortgage did not attach any documents to Mennes affidavit or incorporate any documents by reference through his affidavit. The affidavit was the only item appended to CitiMortgages motion. The copies of the note and mortgage upon which CitiMortgage brought suit were filed with the complaint. {9} Civ.R. 56(C) limits the types of evidentiary materials that a party may present when seeking or defending against summary judgment. Civ.R. 56(C) (limiting summary judgment evidence to pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact). The proper procedure for introducing evidentiary matter not specifically authorized by Civ.R. 56(C) is to incorporate it by reference in a properly framed affidavit pursuant to Civ.R. 56(E). Skidmore & Assoc. Co., L.P.A. v. Southerland (1993), 89 Ohio App.3d 177, 179. [P]apers referred to in an affidavit shall be attached to or served with the affidavit. GMAC Mtge., L.L.C. v. Jacobs, 9th Dist. No. 24984, 2011-Ohio-1780, at 17, quoting Civ.R. 56(E). Even so, it is the opposing partys duty to object when a summary judgment motion relies upon improperly introduced materials. Id. [I]f the opposing party fails to object to improperly introduced evidentiary materials, the trial court may, in its sound discretion, consider those materials in ruling on the summary judgment motion. Wolford v. Sanchez, 9th Dist. No. 05CA008674, 2005-Ohio-6992, at 20, quoting Christe v. GMS Mgt. Co., Inc. (1997), 124 Ohio App.3d 84, 90. {10} The Elias did not object to CitiMortgages summary judgment motion on the basis that it referred to improper Civ.R. 56(C) materials, which were not incorporated by reference in Mennes affidavit. Further, they did not object to Mennes affidavit on the basis that it lacked any attachments. See Civ.R. 56(E). . . ." If the defendant had simply OBJECTED to the introduction of the documents without proper authentication, the defendant could have probably avoided summary judgment in the trial court!

* The discussion on personal knowledge is also interesting. The bare unsupported assertion that an affiant lacks personal knowledge is usually unavailing UNLESS, as in the Murphy case in Maine the averments seem to undermine the credibility of the affiant. It would usually be better to have deposed the witness OR to have an expert affidavit which could impeach the allegation that the affiant has personal knowledge of the facts. * In the end, the defendant wins this round on the conditions precedent argument. Since the case is being remanded, CitiMortgage might still prevail if it produces the notice of acceleration. But the case is interesting and instructive. It also has some helpful case citations which should be useful to Ohio defendants.