n1 '1, ORIGINAL IN THE SUPREME COURT OF OHIO

17-1311 Michael McCurry, On Appeal from the Eighth Appellate

Appellant, District Cuyahoga County Vs. Court of appeals case CV-lS—854l04

DITECH FINANCIAL, LLC Defendants Appellant

NOTICE OF APPEAL OF MICHAEL MCCURRY

Eric T. Deighton, Esq (#0071456) James L. Sassano, Esq. (*0062253) Carlisle, McNellie, Rini, Kramer & Ulrich 24755 Chagrin Blvd, Suite 200 Cleveland, Ohio 44122

, WV" ., Michael McCurry I rights reserved 480 Jeanette Drive, Richmond heights, Ohio 44143

———-—_._.:_.:._.__...__

IEUILEID RECEIVED S£F'1:9,7.01'I

1g CLERK (II UUIIFIT SUPREME COURT OF OHIO CLERK OF COURT 1 SUPREME COURT OF OHIO

5113??‘ NOTICE OF APPEAL OF APPELLANT MICHAEL MCCURRY

Appellant Michael McCurry hereby gives notice of appeal to the Supreme Court of Ohio From the judgment of Cuyahoga Court of Appeals Eighth District, entered in Court of Appeals case number CA-16—l05005 filed on or about October 3, 2016.

This case is a substantial constitutional question and is one of great public interest.

Respectfully submitted,

Michael McCurry All rights reserved 480 Jeanette Drive, Richmond heights, Ohio 44143

CERTIFICATE OF SERVICE I certify that a cpy of this Notice of Appeal was sent by ordinary U.S. mail to counsel for Apelles, by ordinary U.S. mail to counsel or Apelles, DITECH FIANACIAL’S Attorneys.

ectfiill subm' ed

Michael Mccuny All 480 Jeanette Drive, Richmond heights, Ohio 44143

IN THE SUPREME COURT OF OHIO

Michael McCurry, On Appeal from the eight appelate Appellant, district Cuyahoga cunty

Vs. Court of appeals case CV-15~8S4104

DITECH FINANCIAL, LLC Defendants Appellant

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT MICHCHAEL MCCURRY

Eric T. Deighton, Esq (#0071456) James L. Sassano, Esq. (*OO62253) Carlisle, McNellie, Rini, Kramer & Ulrich 24755 Chagrin Blvd, Suite 200 Cleveland, Ohio 44122

Respectfully sufiittedg o-../ ,/—21__ Mic ael McCurry Al rights reserved

480 Jeanette Drive, Richmond heights, Ohio 44143

RE Ell/ED SEP 19 2017

CLERK OF COURT SUPREME COURT OF OHIO

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TABLE OF CONTENTS Page EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENEREAL INTERST AND INVOLVES A SUBSTANTIAL CON STITIUTIONAL QUESTION ................................................. .. 5

STATEMENT OF THE CASE AND FACTS ................................................................ .. 5 ARGUMENT AND SUPPORT OF LAWS. ......................... .. 6

Assignment of Error No. I ................................................................................... .. 8 Assignment of Error No. II.. ...................................................................... .. 9

CONCLUSION ....................... ............................................................. .. .. 9 CERTIFICATE OF SERVICE ....................................................................................... .. 10 APPENDIX ................................................ .. 11

EXPLANANTION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENRERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

This causes presents several critical issues for all Citizens/citizens of the United States of America/ The 5"‘ and/or 14"‘ Amendment of the US. Constitution denial of due process‘

The decision of the court of appeals threatens the integrity of justice, on the merits of the facts and conclusion of clearly established law case. This is a claimed appeal of rights, according to the S.Ct. Prac. 2.1, Types of Appeals (1)(2)and (3). Providing evidence of great general interest and involves a substantial constitutional questions.

STATEMENT OF THE CASE AND FACTS The case arises from an unlawfiil transfer of Appellant’s property caused by a denial of

due process of real—estate located at 480 Jeanette Drive, Richmond heights, Ohio 44143. Numerous documentations were filed in the Eighth District Court of Appeals. In which all of the facts of the matter and evidence were filed in the subject case. The Sheriffs sale for the subject property was scheduled for October 3, 2016. Yet, the Notice of an Appeal was filed by Appellant and also a stay of execution on September 26, 2016. When a case is moved to a different venue all proceedings in the lower case are to stay all proceedings according to FRCP §1446. The property was sold on October 31, 2016 and the confirmation took place on November 28, 2016. In which an astute observation of the Courts procedures show a blatant denial of due process‘ Yet, the constitutional guarantee of ‘equal protection of the law means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and in their pursuit of happiness. People v. Jacobs, 27 CuI.App.3d 246, 103 Cal. Rptr. 536: 14"‘ Ameml, US Const. Appellant provided evidence of the procedural defect in the case ruled upon in the Eighth District Appellate Court. Appellant Courts must review decisions/judgments de nnvo, which means that we apply the

same standards as the trial court”. GNFH, Inc. vs. Am. Ins. Co., 172 0111'!) App.3d 127, 2007 Ohio 2 77. At all times relevant to the transfer of the subject property the transfer was fraudulent and defective in its transaction.

ARGUMENT IN SUPPORT OF LAWS The Appellee failed to set forth any meaningful facts and tmly supporting evidence,

other than to make general allegations and to past interest to the Appellee. At no time was Appellant given a reasonable opportunity to learn of its fraudulent character, or essential terms.

An intentional perversion of the truth for the purpose of inducing another in reliance upon it to pan with some valuable thing belonging to him or to surrender a legal right. Which is a false representation of a matter of fact, whether by words or by conduct, by false or misleading

allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Brainard Dispatch Newspaper Co. v. Crow Wing County, 196 Minn., 194, 264 N. W 779, 780. A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, tricks, cunning, dissembling, and any unfair way by which another is cheated. Johnson v. McDonald, 1 70 OH. 11 7, 39 P.2d150. “Bad faith” and “fraud” are synonymous, and also synonyms of dishonesty, infidelity, faithlessness, perfidy, unfairness, etc. Joiner v. Joiner, T ex. Civ.app., 87S. W 241 903, 914, 915. As to what constitutes fraud, see Am. Jur. 2d, Fraud and Deceit §1

No rights can be acquired by fraud. See Craig v. Mo. 4 Peters reports 912 Courts can only tread only that path which is marked out by duty. The right to a remedy should been enforced or the Violation of a right should been prevented, redressed, or compensated. Long Leaf Lumber, inc. v. Svolas, La. App., 258 So.2d 121, 124. When exhibits are attached to a

6

complaint the contents of the exhibits control over the allegations of the complaint. Hunt Ridge at Tall Pines, Inc. v. Hall 766 So. 2d 399-Fla Dist. court of Appeal, 2'" Dist. 2000. When a legal right is violated to the injury of another a right of action is created, and the injured party

may put in motion the law of the remedy against the wrongdoer. Vasu v. Kohlers, Inc., 145 Ohio St. 321, 30 Ohio Op, 542, 61 NE. 2d 707, I66 A.L.R. 855 (1945) The actions of the Defendants violated clearly established Constitutional rights which a reasonable person would have known and recognized. The Appellees took the described actions with the malicious intent to cause injury to the Appellee. Appelee’s lacked jurisdiction to proceed with the sheriffs sale. The issue is presented is thus clearly drawn. As preliminary matter let us consider two well—established legal doctrines pertinent in this case. First the corporation is liable for the tort of its agent when committed with the scope of the agent’s authority and course of employment even thought did not authorize or ratify the tortuous acts. Imssell v. American Rock Crusher Ca, 181, 894, 317 P.2d 347 (1957).

If the servant has committed a tort within the scope of his employment so as to render the Corporation liable for compensatory damages, and if the servant’s act is such as to render him liable for punitive damages Stmud v. Denn}g’s Restaurant, 271 Or. 430, 435, 532 P.2d 790 (1975). For Mens Rea it is necessary to prove that the purpose of the conspirators was to cause the victim economic loss” (per Lord Diplock vs. Scott) for the test of Dishonesty, see R v Ghosh (1982) 2 All ER The evidence provided to the Appellate Court clearly shows a denial of due process of clearly established law. Where as an orderly proceeding wherein a person is served with notice, actual or constructive, and has an opportunity to be heard and to enforce and protect his rights before court having power to hear and determine the case Kazubowski, v. Kazubowski, 45 i1.l.2d 405, 25 91V.E. 211 282, 290. Aside from all else, “due process” means fundamental fairness and substantial justice. Vaughn v. State, Tenn. Crim.App.

7

54, 456 S. WZD 879.883. Moreover, a foreclosure action is equitable in nature. City Loan & Savings v. Howard (1984), 16 Ohio App. 311 185, 186. In Charter One Bank. F.S.li v. Kobenald Cam, 2002-0hio-1315, the Tenth District Court of Appeals addressed another similar situation. Charter One did attach an affidavit in support of its motion for summary. Id. The Affidavit did reference and attach a payment history. Id. In fact, the Kobenald Corp. court opinion that the payment history was crucial to a motion for summary judgment in foreclosure cases. Id. The Tenth District Court of Appeals found that genuine issues existed as to whether the homeowner was actually in default and, even if so, the proper relief due Appellee. Id. Pro Se Litigants pleadings are to be considered without regard to technicality; pro se litigants pleadings are not to be held to the same high standards of perfection as lawyers. Haines v. Kerner 404 US. 519 (1972)

ASSIGNMENT OF ERROR I An astute observation of the procedure to have a Sheriff s sale provides evidence that Appellees put the cart before the horse so to speak. The Appellant then Defendant had filed a notice of an Appeal. Which is a violation of proper procedure and rights of the

Appellant to be heard in the Appellate Court’s venue.

ASSIGNIVIENT OF ERROR II At all times relevant Appellant’s rights were clearly violated according to clearly

established law. The confirmation of Sale has taken affect while the Appellate Courts procedure had not been completed. Wherefore the sale was fraudulent, and

Appellant has clearly been denied equal protection of his rights.

CONCLUSION At all times relevant to the unlawful transfer of Appellants property located at 480

Jeanette Dr. Richmond Hts, Ohio 44143. The procedure denied Appellant proper procedure to keep the subject property. In which the law provides equal protection according to the U. S. Constitution. In all respect to the Constitution of the United States, it clearly states thou should

not be denied life, liberty, or property. A charter of government deriving its whole authority from the governed. Where for the property should be transferred back according to O.R.C. re; Replevin in the court to right the wrong put upon Appellant. Fairhope Single Tax Corporation vs. Melville, 193, Ala. 289, 69, So. 4617, 470.

WHEREFORE, Appellant’s rights have been violated, and he has the right to redress his grievances.

E‘”4°‘“’?Z‘2";’2E"’77z Michael McCurry All rights rese d 480 Jeanette Drive, Richmond heights, Ohio 44143

CERTIFICATE OF SERVICE

I certify that the original of the foregoing Complaint was sent to all of the Defendants listed below. Sent this day 5 of gpég -mmc, 2017.

Eric T. Deightorr, Esq (#0071456) James L‘ Sassano, Esq. (#0062253) Carlisle, McNellie, Rini, Kramer & Ulrich 24755 Chagrin Blvd, Suite 200 Cleveland, Ohio 44122

K «-4. /bu’-3X Michael McCurry All rights reserved 480 Jeanette Drive) Richmond heights, Ohio 44143

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APPENDIX Am. Jur. 2d, Fraud and Deceit §l ...... .. 6 Brainard Dispatch Newspaper Co. v. Crow Wing County, 1961Winn., 194, 264N. W 779, 780. ....................................................... .. 6 Charter One Bank. F.S.B. v. Kobenald Corp., 2002-0hio—1315, ......................... .. 8 City Loan & Savings v. Howard (1984) ......................................... .. 8 Craig v. Mo. 4 Peters reports 912 ......................................................................... .. 6 Fairhope Single Tax Corporation vs. Melville, 193, Ala. 289, 69, So. 466, 470.... 9 FRCP §l446. ...... .. 5 GNFH, Inc. vs. Am. Ins. Co., 172 Ohio App.3d 127, 2007 Ohio 277. ................ .. 6 Haines v. Kerner 404 U.S. 519 (I972) . 8 Hunt Ridge at Tall Pines, Inc. v. Hall 766 So. 2d 399-Fla. Dist court of Appeal, 2"” Dist. 2000 ............................................. .. . 7 Johnson v. McDonald, 170 Okl. II 7, 39 P.2d150. .............................................. .. 6 Joiner v. Joiner, Tex. Civ.app., 87S. W 211 903 6 Kazubowski, v. Kazubowski, 45 i1.1.2d 405, 259N.E.2d 282, 290. .................... .. 8 Long Leaf Lumber, inc. v. Svolos, La. App., 258 So.2d 121, 124. ...................... .. 7 People v. Jacobs, 27 Cal.App.3d 246, 103 Cal. Rptr. 536: 14"‘ Amend, US Const. ......................................................................................... ..~ Russell v. American Rock Crusher Co., 181, 894, 317 P.2d 847 (1957) .............. .. 7 R v Ghosh (1982) 2 All ER. ............................................. .. Stroud v. Denng’s Restaurant, 271 Or. 430, 435, 532 P.2d 790 (1975) ................ .. 7 Vasu v. Kohlers, Inc. , 145 Ohio St. 321, 30 Ohio Op, 542, 61 N.E.2d 707, I66 A.L.R. 855 (I945) ................................................................... .. 7 Vaughn v. State, T enn. Crim.App. 54, 456 S. W2D 879. 883. . .......... ..

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AFFIDAVIT OF THE FACTS State of CWO )

) : ss County f/V

NOTICE TO THE AGENT IS NOTICE TO THE PRINCIPAL NOTICE TO THE PRINCIPAL IS NOTICE TO THE AGENT “In deed, no more than (affidavit) is necessary to make the prima facie case.” United States v. Kis, 658 F.2"", and 526 (7“‘ Cir, 1981) Cert Denied, 50 U.SLW. 2169; U.S.L.W. March 22, 1982.

Affiant being of sound mind and over the age of twenty-one being first duly sworn under the penalty or perjiuy Certify on unlimited commercial liability that, the contents are of aff'1ant’s own firsthand knowledge. Affiant does solemnly swear, depose say and declare; that affiant has personal knowledge and belief of the facts stated herein. That affiant is competent to state the matter set forth herein; that affiant has personal knowledge and belief of the facts stated herein; and all facts stated herein are true, correct, and complete, not misleading, the truth, the whole truth, and noting but the truth.

1) Affiant states that Affiant all statements, laws, and facts are true and correct. 2) Affiant states that the procedure in the statement of the case and facts is true and accurate

via of Cuyahoga County Clerk’s website.

An Affidavit unrebutted stands as Truth.

Affidavit uncontested unrebutted unanswered [United States v. Kis, 658 F.2d 526, S36 (7th Cir. 1981); Cert. Denied, 50 U.S. L. W. 2169; S. Ct. March 22, 1982 1982]"A|legations in affidavit in support of motion must be considered as true in absence of counter~affidavit.” [Group v Finletter, 108 F. Supp. 327 Federal case of Group v Finletter, 108 F. Supp. 327]"Indeed, no more than affidavits is necessary to make the prima facie case.” [United States v. Kis, 658 F.2d 526, S36 (7th Cir. 1981); Cert. Denied, 50 U.S L. W. 2169; S. Ct. March 22, 1982]AFFIDAV|T. A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath. Cox v. Stern, 170 III. 442, 48 ME. 906, 62 Am.St.Rep. 385; Hays v. Loomis, 84 Ill. 18. A statement or declaration reduced to writing, and sworn to or affirmed before some officer who has authority to administer an oath or affirmation. Shelton v. Berry, 19 Tex.

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154, 70 Am.Dec. 326, and In re Breidt, 84 N.J.Eq. 222, 94 A. 214, 216.affidavit uncontested unrebutted unanswered - [United States v. Kis, 658 F.2d 526, S36 (7th Cir. 1981); Cert. Denied, 50 U.S. L. W. 2169; S. Ct. March 22, 1982 1982] "Indeed, no more than affidavits islnecessary to make the prima facie case." [United States v. Kis, 658 F.2d 526, 536 (7th Cir. 1981); Cert. Denied, 50 U.S. L. W. 2169; S. Ct. March 22, 1982] affidavit uncontested unrebutted unanswered Morris v National Cash Register, 44 s.w. 2d 433 Morris v National Cash Register, 44 S.W. 2d 433, clearly states at point #4 that ”uncontested allegations in affidavit must be accepted as true." affidavit uncontested unrebutted unanswered Morris vs. NCR, 44 SW2d 433 Morris v National Cash Register, 44 SW2d 433: ”An Affidavit if not contested in a timely manner is considered undisputed facts as a matter of law." Non Rebutted Affidavits are "Prima Facie Evidence in the Case,» "United States vs. Kis, 658 F.2d, 526, 536-337 (7th Cir. 1981);"lndeed, no more than (Affidavits) is necessary to make the Prime Facie Case." ~- Cert Denied, 50 U.S. L.W. 2169; S.Ct. March 22, 1982."Uncontested Affidavit taken as true in support of Summary Judgment." -- Seitzer v. Seitzer, 80 Cal. Rptr. 688"Uncontested Affidavit taken as true in Opposition of Summaryjudgment." —

Melorich Builders v. The SUPERIOR COURT of San Bernardino County (Serbia) 207 Cal.Rptr. 47 (Cal.App.4 Dist. 1984) "Silence can only be equated with fraud where there is a legal or moral duty to speak, or where an inquiry left unanswered would be intentionally misleading. . . We cannot condone this shocking behavior... This sort of deception will not be tolerated and if this is routine it should be corrected immediately." ~- U.S. v. Tweel, 550 F.2d 297, 299. See also U.S. v. Prudden, 424 F.2d

1021, 1032; Carmine v. Bowen, 64 A. 932.

WHEREFORE UPON Affiants unrebutted Affidavits Afiiants swears that Appellee’s Will not rebut any Affidavits. Giving Affiant the right to oppose All actions in the Eighth

District Court of Appeals, and the Cuyahoga County Common Ple~ \\ ‘”R””"’/

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406* I "30/7

Qiinurt of Qppealsz of QBIJIJJ EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105005

DITECH FINANCIAL L.L.C., F.K.A. GREEN TREE SERVICING L.L.C.

PLAINTIFEAPPELLEE

VS.

MICHAEL MCCURRY, ET AL. DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV—15-854104

BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Stewart, J.

RELEASED AND JOURNALIZED: August 10, 2017

lcllllllslllllllllllllllllllllIlllllllllllllllllllllllgloi

ATTORNEY FOR APPELLANT A. Clifford Thornton PDC Building #305 3659 Green Road Beachwood, Ohio 44122

ATTORNEYS FOR APPELLEE James L. Sassano Eric T. Deighton Carlisle McNellie Rini Kramer & Ulrich, Co. L.P.A. 24755 Chagrin Boulevard, Suite 200 Cleveland, Ohio 44122

For Ohio Department of Taxation

Mike DeWine Ohio Attorney General C/O Department of Taxation 150 East Gay Street Columbus, Ohio 43215

MARY EILEEN KILBANE, P.J.: {fill} Defendant-appellant, Michael McCurry (“McCurry”), appeals the

trial court’sjudgment granting summary judgment in favor ofplaintiff-appellee

Ditech Financial L.L.C. (“Ditech”), denying McCurry’s motion to dismiss, and

decree of foreclosure. For the reasons set forth below, we affirm.

{$12} In November 2015, Ditech f.k.a. Green Tree Servicing L.L.C., filed

a foreclosure complaint against McCurry. In its complaint, Ditech alleged that

it was the owner and holder of a note and mortgage executed by McCurry and

McCurry was in default on the note. Ditech sought to foreclose on the property

and sought to recover the unpaid balance on the note in the amount of

$196,389.83. Copies of the note and mortgage were attached to the complaint.

Ditech moved for summary judgment in July 2016. In response, McCurry filed a brief in opposition and a motion to dismiss. In August 2016, the trial court

issued a decision denying McCurry’s motion to dismiss and granting Ditech’s

motion for summary judgment. The trial court also ordered the foreclosure and sale of the property. Subsequently, a sheriffs sale was scheduled for October

31, 2016.

H3} In the interim, McCurry filed his notice of appeal with this court on September 26, 2016. That same day, McCurry also filed a motion to stay the

proceedings with the trial court. The trial court denied this motion on October

3, 2016. Then on October 12, 2016, McCurry filed a motion to stay execution of

the judgment with this court, This court granted the motion on November 1,

2017, pending McCurry posting a bond. However, the property was sold at the

sheriffs sale on October 31, 2016, and the trial court confirmed the sale of the

property on November 28, 2016, Furthermore, a review of the record reveals

that McCurry never posted the bond.

HI4} McCurry now appeals, raising the following two assignments of

error, which shall be discussed together,

Assignment of Error One

Reviewing [Ditech’s] motion for summary judgment de novo, the record is clear and convincing that the trial court erred to the prejudice of [McCurry] by granting [Ditech’s] motion for summary judgment and denying [McCurry’s] motion to dismiss in favor of [Ditech].

Assignment of Error Two

The trial court erred to the prejudice of [McCurry] by granting [Ditech’s] motion for summary judgment and denying [McCurry‘s] motion to dismiss based upon the presence of genuine issues of material fact regarding [Ditech’s] failure to provide sufficient evidence ofentitlement to foreclosure and/or damages.

H15} We initially note that Ditech contends that McC urry’s appeal is moot because the property has been sold and McCurry failed to obtain a stay, This

court has previously dismissed appeals as moot when the order of confirmation of the sheriffs sale is appealed, the property has been sold, and the appellant

never sought a stay. Wells Fargo Bank, NA. v. Cueuas, 8th Dist. Cuyahoga No. 99921, 2014-Ohio—498; Third Fed. Sau. & LocmsAssn. ofCleueland u. Rains,

{1I8} We review an appeal from summary judgment under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

1996-Ohio-336, 671 N.E.2d 241; Zemcik u. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706 N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor

Soccer Club, 82 Ohio St.3d 367, 369-370, 1998-Ohio-389, 696 NE2d 201, the Ohio Supreme Court set forth the appropriate test as follows:

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled tojudgment as a matter oflaw, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton u. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue ofmaterial fact and that it is entitled tojudgment as a matter oflaw. Dresher u. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio—107, 662 N.E.2d 264.

M19} Once the moving party satisfies its burden, the nonmoving party “may not rest upon the mere allegations or denials ofthe 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.” Civ.R. 56(E);

Mootispaw v. Eckstein, 76 Ohio St.3d 383,385, 1996-Ohio-389, 667 N.E.2d1197.

Doubts must be resolved in favor of the nonmoving party. Murphy u. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 1992-Ohio-95, 604 N.E.2d 138.

W10} In the instant case, Ditech submitted several documents demonstrating that it had standing to invoke the trial court’s jurisdiction,

including D’Addona’s affidavit, In her affidavit, D’Addona avers that she is

Assistant Vice President of Ditech, and that she has personal knowledge of the

contents of her affidavit. She further avers that she is the custodian of the

business records involving McCurry’s loan, knows how those business records are created and maintained, and she reviewed those business records in order

to testify in the affidavit.

H111} Under Civ.R. 56(E), affidavits supporting a motion for summary judgment must be made on personal knowledge. “Personal knowledge’ is ‘knowledge gained through firsthand observation or experience, as distinguished

from a belief based on what someone else has said.”’ Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, 1] 26,

quoting Blacks Law Dictionary 875 (7th Ed.Rev.1999). The foregoing averments by D’Addona demonstrate that the affidavit was sufficiently based

on personal knowledge for purposes of Civ.R. 56(E). See CiliMartgage, Inc. v.

Evans, 8th Dist. Cuyahoga No. 101882, 2015-Ohio~1384, 1] 21.

H! 12} D’Addona further averred that Ditech is and was, prior to the filing

of the complaint, in possession of the note and the assignee of the mortgage.

Ditech attached to its complaint a copy of the note, with the original lender

listed as Freedom Mortgage Corporation. The note was indorsed to Irwin

Mortgage Corporation, which indorsed the note in blank.

H113} The Ohio Supreme Court addressed the issue of standing in a

foreclosure action in Fed. Home Loan Mtge. Corp. 11. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214. In Schwartzwald, the court found

that a plaintiffmust have standing at the time it files the complaint in order to

invoke the jurisdiction of the court. Id. at 1| 41-42. A party has standing in a foreclosure case, when, at the time it files its complaint, “it either (1) has had

a mortgage assigned or (2) is the holder of the note.” Bank of Am., N.A. U.

Calloway, 8th Dist. Cuyahoga No. 103622, 2016-Ohio-7959, 1! 13, citing

CitiMortgage, Inc. v. Patterson, 2012-Ohio-5894, 984 N.E.2d 392, 1] 21 (8th

Dist.), citing Schwartzwald.

HII4} Under R.C. 1303.25(B), a “[b}lank indorsement” means an

instrument that is made by the holder of the instrument and that is not a special indorsement. When an instrument is indorsed in blank, the instrument becomes payable to the bearer and may be negotiated by transfer of possession alone until specially indorsed.

W15} R.C. 1301.201(B)(21)(a) provides that a “holder” is a “person in possession ofa negotiable instrument that is payable * * * to bearer[.]” Ditech

had possession ofthe note, which was payable to the bearer. Therefore, Ditech

was the current holder of the note and was entitled to enforce it at the time of

the filing of its complaint.

“I 16} Furthermore, Ditech attached the mortgage and an assignment of

the mortgage to Mortgage Electronic Registration Systems, Inc. (“MERS”) as

nominee for Freedom Mortgage Company and then assigned to Everhome Mortgage Company and then later assigned to Green Tree Servicing L.L.C. Ditech attached a copy of a certificate of merger from the office of the secretary

of state of Delaware, stating that Green Tree Servicing L.L.C. merged into

Ditech.

HI 17} We recognize that when a merger between two companies occurs, one of those companies ceases to exist. “[A] merger involves the absorption of

one company by another, the latter retaining its own name and identity, and acquiring the assets, liabilities, franchises, and powers of the former. Of

necessity, the absorbed company ceases to exist as a separate business entity.”

Morris 1). Invest. Life Ins. Co., 27 Ohio St.2d 26, 31, 272 N.E.2d 105 (1971).

“[T]he absorbed company becomes a part of the resulting company following merger [and] the merged company has the ability to enforce * * * agreements as ifthe resulting company had stepped in the shoes ofthe absorbed company.”

Acordia of Ohio, L.L.C. U. Fishel, 133 Ohio St.3d 356, 2012-Ohio-4648, 978

N.E.2d 823, T] 7. Once “‘an existing bank takes the place of another bank after a merger, no further action is necessary’ to become a real party in interest.”

Harris, 8th Dist. Cuyahoga No. 99272, 2013-Ohio-5749, at 1| 18, quoting

Huntington Natl. Bank v. Ho/‘fer, 2d Dist. Greene No. 2010—CA-31, 2011-Ohio-242, 1I 15.

{1[18} Based on the foregoing, we find that D’Addona’s affidavit was

sufficient, and Ditech established that it was the real party in interest at the

time it filed the foreclosure complaint against McCurry. As a result, Ditech had

standing to bring the action.

H] 19} McCurry next argues the trial court erred when it granted Ditech’s motion for summaryjudgment and denied his motion to dismiss because Ditech failed to submit credible “payment history.”

H120} In support ofits motion for summary judgment, Ditech produced the loan payment history and evidence of late fees by attaching those

documents and incorporating them through D’Addona’s affidavit. In her

affidavit, D’Addona testified as to the amount due on the note, based upon her

review of the relevant business records relating to McCurry’s loan. As we

stated in Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, TI 40,

[t]here is no requirement that a plaintiff provide a complete “payment history” in order to establish its entitlement to summary judgment in a foreclosure action. [The affidavit of the vice president of the bank's loan servicer] and supporting documents were sufficient to meet [the bank’s] burden of establishing the amount due on the note. See, e.g., Cent. Mtge. Co. v. Elia, 9th Dist. No. 25505, 2011-Ohio-3188, 1[ 7 (“‘An affidavit stating [a] loan is in

default, is sufficient for purposes of Civ.R. 56, in the absence of evidence controverting those averments.’"), quoting [Bank One, NA. 1}. Swartz, 9th Dist. N0. 03CAOO8308, 2004-Ohio-1986, TII4].

Likewise in the instant case, D’Addona’s affidavit sufficiently authenticated the

loan documents submitted in support of Ditech‘s motion for summary judgment, and Ditech satisfied its burden of establishing the amount due on the note.

W21} Therefore, the first and second assignments oferror are overruled. W22} Judgment affirmed.

It is ordered that appellee recover of appellant 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. FILED AND JOURNALIZED

PER APFTR. ?.2fC) //2/5%’ ééw AUG102Dl7 MARY EILEEN KILBANE, PRESIDING JUDGE

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