[Cite as Bank of New York Mellon v. Roulston, 2017-Ohio-8400.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 104908 

BANK OF NEW YORK MELLON, ET AL.

PLAINTIFFS-APPELLEES 

vs. 

THOMAS ROULSTON, III, ET AL.

DEFENDANTS-APPELLANTS 

JUDGMENT: 

REVERSED AND REMANDED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-14-832602 

 BEFORE: Blackmon, J., Kilbane, P.J., and Stewart, J. 

 RELEASED AND JOURNALIZED: November 2, 2017
ATTORNEYS FOR APPELLANTS

Marc E. Dann 

William C. Behrens 

Emily White 

The Dann Law Firm Co., L.P.A. 

P.O. Box 6031040 

Cleveland, Ohio 44103 

ATTORNEYS FOR APPELLEES 

For Bank of New York Mellon 

Ryan F. Hemmerle 

John Rollin Tarter 

Carrie L. Davis 

Reisenfeld & Associates 

3962 Red Bank Road 

Cincinnati, Ohio 45227 

Gregory A. Stout 

Reisenfeld & Associates 

8050 Hosbrook Road, Suite 107 

Cincinnati, Ohio 45236 

J. P. Morgan Chase Bank, NA 

f.k.a. Citizens Bank 

1111 Polaris Parkway 

Columbus, Ohio 43240 

For Skoda Minotti Company

Robert B. Weltman 

Weltman Weinberg & Reis Co., L.P.A. 

323 W. Lakeside Avenue, Suite 200 

Cleveland, Ohio 44113 

-ii-
For Nottinghill Investment Advisers, Ltd.

Bradley D. McPeek 

Lindhorst & Dreidame Co., L.P.A. 

312 Walnut Street, Suite 2300 

Cincinnati, Ohio 45202 

Also Listed

State of Ohio, Dept. of Taxation 

150 East Gay Street, 21st Floor 

Columbus, Ohio 43215 

Thomas Roulston, III 

3615 Superior Avenue, East 

Cleveland, Ohio 44114 
PATRICIA ANN BLACKMON, J.: 

{¶1} Christine L. King-Roulston (“Christine”) appeals from the trial court’s 

granting summary judgment to The Bank of New York Mellon1 (“BONY”) in this 

foreclosure case and assigns the following error for our review: 

I. The trial court erred by granting a judgment of foreclosure based upon 

unreliable and unauthenticated hearsay evidence that did not qualify under 

the business records exception. 

{¶2} Having reviewed the record and pertinent law, we reverse and remand to 

the trial court. The apposite facts follow. 

{¶3} On October 26, 2006, Thomas Roulston, III (“Thomas”) executed a note 

with Countrywide Home Loans, Inc. (“the Note”) for $800,000, plus interest. As 

security for the Note, Thomas and his wife Christine executed a mortgage on property 

located at 3950 Waterford Court in Beachwood, Ohio. Subsequently, the Note was 

endorsed to BONY. On May 1, 2010, Thomas defaulted on the note. On August 9, 

2011, the mortgage was assigned to BONY by Mortgage Electronic Registration Systems, 

Inc. (“MERS”). On February 10, 2012, notice of default on the mortgage was sent to 

Thomas, and on October 10, 2013, notice of default on the mortgage was sent to 

Christine. 

 1 Plaintiff’s full name is The Bank of New York Mellon, f.k.a. The Bank of New York, as 

Trustee for the Certificate Holders of the CWABS, Inc., Asset-Backed Certificates, Series 2006-24.
{¶4} On September 11, 2014, BONY filed a foreclosure complaint against 

Thomas, Christine, and various alleged lien holders claiming an interest in the property. 

The complaint alleged that Thomas owed $892,400.08, plus 4.5% interest per annum 

from April 1, 2010, and various fees on the Note. 

{¶5} On June 20, 2016, the magistrate issued a decision granting BONY’S 

summary judgment motion, and on August 8, 2016, the court issued an order adopting 

this decision. It is from this order that Christine timely appeals. 

Summary Judgment

{¶6} Appellate review of granting summary judgment is de novo. Pursuant to 

Civ.R. 56(C), the party seeking summary judgment must prove that (1) there is no 

genuine issue of material fact; (2) they are 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 

nonmoving party. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). 

Furthermore, to support summary judgment motions, “sworn or certified” documents may 

be submitted, accompanied by an affidavit, which “shall be made on personal knowledge, 

shall set forth facts as would be admissible in evidence, and shall show affirmatively that 

the affiant is competent to testify to the matters stated in the affidavit.” Civ.R. 56(E). 

{¶7} Once the movant satisfies this burden, it shifts to the opposing party, who 

“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.” Id. 
{¶8} To succeed in a foreclosure action, a plaintiff must present evidence that: 

(1) it is the holder of the note and mortgage or otherwise entitled to enforce the note and 

mortgage; (2) the borrower is in default; and (3) the conditions precedent of the mortgage 

and note have been met. Additionally, the plaintiff must show the amount of principal 

and interest due. See HSBC Bank USA, N.A. v. Surrarrer, 8th Dist. Cuyahoga No. 

100039, 2013-Ohio-5594, ¶ 16. 

Admissibility of Evidence

{¶9} “The admission or exclusion of relevant evidence rests within the sound 

discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 

(1987). Generally, hearsay is inadmissible unless it falls under one of the exceptions in 

Evid.R. 803. The hearsay exception at issue in the case at hand concerns business 

records, which are admissible under the following standard: 

A memorandum, report, records, or data compilation, in any form, of acts, 

events, or conditions, made at or near the time by, or from information 

transmitted by, a person with knowledge, if kept in the course of a regularly 

conducted business activity, and if it was the regular practice of that 

business activity to make the memorandum, report, record, or data 

compilation, all as shown by the testimony of the custodian or other 

qualified witness or as provided by Rule 901(B)(10), unless the source of 

information or the method or circumstances of preparation indicate lack of 

trustworthiness. 
Evid.R. 803(6). 

{¶10} On appeal, Christine argues that the loan payment records at issue are 

“flagged as unreliable by the business that produced them, and * * * authenticated by an 

individual without sufficient personal knowledge of the record-keeping system through 

which they were created.” BONY, on the other hand, argues that it submitted 

documentary evidence, along with an affidavit from a representative of loan servicer 

Specialized Loan Servicing, L.L.C. (“SLS”), consisting of the note, the mortgage, the 

assignment, the payment history showing default, and notice of default letters. BONY 

further argues that this evidence is unchallenged and sufficient under Civ.R. 56. 

{¶11} Christine’s first argument is that the payment records BONY submitted are 

unreliable, because the following notice is on one of the pages: 

Bank Of America Home Loans provides you with detailed reports under the 

terms of your agreement with it. In contrast, the information provided 

herein is in a user friendly summary format and should not [be] considered 

as a report. Among other things, the information may be incomplete, may 

not provide sufficient detail for your own reporting or audit purposes, may 

not be real time data, and therefore it should not be relied upon by you. 

{¶12} In response, BONY argues that Christine failed to preserve this issue for 

appellate review by not objecting to it in the trial court. Our review of the summary 

judgment briefs filed in the trial court shows that this issue was not addressed. Christine 

challenged summary judgment on the basis that “the Affidavit of Cynthia Wallace was 

not made upon personal knowledge and failed to authenticate the necessary evidence for 

foreclosure.” 
{¶13} “A litigant’s failure to raise an argument in the trial court waives the 

litigant’s right to raise the issue on appeal.” Foster v. Wells Fargo Fin. Ohio, Inc., 195 

Ohio App.3d 497, 2011-Ohio-4632, 960 N.E.2d 1022, ¶ 24 (8th Dist.). Therefore, 

Christine’s argument that the Bank of America Home Loans records are unreliable is not 

properly before this court. 

{¶14} We turn to Christine’s argument that BONY’s documents are 

unauthenticated, because Wallace did not have personal knowledge of the records. 

Wallace’s affidavit states that she is an employee of SLS, the loan servicing agent for 

BONY. Wallace has “access to SLS’s business records maintained in the ordinary 

course of regularly conducted business activity, including the business records for and 

relating to [Thomas’s] loan.” Wallace states that her affidavit is “based upon my review 

of those records relating to [Thomas’s] loan and from my own personal knowledge of 

how they are kept and maintained.” 

{¶15} Wallace’s affidavit further states that she also reviewed Christine’s file and 

records from the previous servicer of the Note, Bank of America, including “the loss 

mitigation notes, correspondence, payment history, the original note, mortgage, 

assignment, and origination file.” Wallace’s affidavit fails to state that she has 

familiarity with Bank of America’s record-keeping system. 

{¶16} A witness authenticating records need not have personal knowledge of the 

creation of the document. See State v. Davis, 62 Ohio St.3d 326, 581 N.E.2d 1362 

(1991). Rather, the witness must have personal knowledge of the record-keeping system 
in which the documents were maintained. See Hetzer-Young v. Precision Airmotive 

Corp., 184 Ohio App.3d 516, 2009-Ohio-5365, 921 N.E.2d 683, ¶ 43 (8th Dist.). More 

precisely as it relates to foreclosure cases, this court has held that the affidavit of a loan 

servicing agent may be sufficient to authorize loan documents. See, e.g., Deutsche Bank 

Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 27; United 

States Bank Natl. Assn. v. Turner, 8th Dist. Cuyahoga No. 97935, 2012-Ohio-4592, ¶ 5. 

{¶17} However, this does not mean that all employees of loan servicing companies 

qualify to testify as witnesses about another company’s loan documents. In Keeva J. 

Kekst Architects v. George, 8th Dist. Cuyahoga No. 70835, 1997 Ohio App. LEXIS 2077 

(May 15, 1997), this court held that the witness must show “that he or she is sufficiently 

familiar with the operation of the business and with the circumstances of the preparation, 

maintenance, and retrieval of the record in order to reasonably testify on the basis of this 

knowledge that the record is what it purports to be, and was made in the ordinary course 

of business.” See also Monroe v. Steen, 9th Dist. Summit No. C.A. No. 24342, 

2009-Ohio-5163, ¶ 14 (noting that merely receiving and retaining business records from 

another company does not necessarily demonstrate a “working knowledge of the specific 

record-keeping system that produced the document”). 

{¶18} Wallace works for SLS, which is the company that services BONY’s loans, 

and Wallace’s affidavit demonstrates that she is qualified to authenticate documents that 

SLS and BONY created and maintained, even if she was not the person who prepared 

these documents. Nothing in the record, nor in Wallace’s affidavit, shows that she is 
qualified to authenticate records created by Bank of America, or any company other than 

SLS and BONY, for that matter. 

{¶19} Upon review, we find that there are genuine issues of material fact regarding 

the authentication of the evidentiary materials BONY submitted, because Wallace’s 

affidavit is insufficient as to some of the documents it references. Accordingly, the court 

 erred in granting summary judgment, and Christine’s sole assigned error is sustained. 

{¶20} Judgment reversed and remanded to the trial court for proceedings 

consistent with this opinion. 

It is ordered that appellants recover from appellees costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to the Cuyahoga County 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. 

 

PATRICIA ANN BLACKMON, JUDGE 

MARY EILEEN KILBANE, P.J., and 

MELODY J. STEWART, J., CONCUR