IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MSCI 2007-IQ16 GRANVILLE RETAIL, LLC, 

 Plaintiff, 

 

vs. Case No. 2:11-cv-487 

 Magistrate Judge King 

UHA CORPORATION, LLC, et al., 

 

 Defendants. 

OPINION AND ORDER 

 This is a diversity action for a money judgment and foreclosure 

of mortgaged premises in Delaware, Fairfield, and Franklin Counties, 

and associated leases and personal property, following the alleged 

default by defendant UHA Corporation, LLC (“defendant”), under a 

commercial loan. Defendant asserts counterclaims for an accounting 

and an accord and satisfaction. Amended Answer of Defendant UHA 

Corporation, LLC to the Complaint, ECF 36. With the consent of the 

parties, see 28 U.S.C. § 636(c), this matter is now before the Court 

on plaintiff’s motion for summary judgment. Plaintiff MSCI 2007-IQ16 

Granville Retail, LLC’s Motion for Summary Judgment (“Motion for 

Summary Judgment”), ECF 61. Defendant has filed a response to the 

Motion for Summary Judgment, Memorandum contra of Defendant UHA 

Corpoartion, LLC to Plaintiff MSCI 2007-IQ16 Granville Retail, LLC’s 

Motion for Summary Judgment (“Defendant’s Response”), ECF 71, and 

plaintiff has filed a reply, Reply Memorandum of Plaintiff MSCI 2007-

IQ16 Granville Retail, LLC in Support of Its Motion for Summary 

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Judgment, ECF 76. For the reasons that follow, plaintiff’s Motion for 

Summary Judgment is GRANTED. 

I. 

The standard for summary judgment is well established. This 

standard is found in Rule 56 of the Federal Rules of Civil Procedure, 

which provides in pertinent part: “The court shall grant summary 

judgment if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). In making this determination, the 

evidence “must be viewed in the light most favorable” to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). 

Summary judgment will not lie if the dispute about a material fact is 

genuine, “that is, if the evidence is such that a reasonable jury 

could return a verdict for the non-moving party.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986). However, summary judgment is 

appropriate if the opposing party “fails to make a showing sufficient 

to establish the existence of an element essential to that party’s 

case, and on which that party will bear the burden of proof at trial.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The “mere 

existence of a scintilla of evidence in support of the [opposing 

party’s] position will be insufficient; there must be evidence on 

which the jury could reasonably find for the [opposing party].” 

Anderson, 477 U.S. at 252.

 The “party seeking summary judgment always bears the initial 

responsibility of informing the district court of the basis for its 

motion, and identifying those portions” of the record that demonstrate 

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“the absence of a genuine issue of material fact.” Celotex Corp., 477 

U.S. at 323. The burden then shifts to the nonmoving party who “must 

set forth specific facts showing that there is a genuine issue for 

trial.” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)). 

“Once the moving party has proved that no material facts exist, the 

non-moving party must do more than raise a metaphysical or conjectural 

doubt about issues requiring resolution at trial.” Agristor Fin. 

Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (citing 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 

(1986)). Instead, the non-moving party must support the assertion 

that a fact is genuinely disputed. Fed. R. Civ. P. 56(c)(1). 

 In ruling on a motion for summary judgment “ʽ[a] district court 

is not . . . obligated to wade through and search the entire record 

for some specific facts that might support the nonmoving party’s 

claim.’” Gover v. Speedway Super Am., LLC, 284 F. Supp. 2d 858, 862 

(S.D. Ohio 2003) (quoting InterRoyal Corp. v. Sponseller, 889 F.2d 

108, 111 (6th Cir. 1989)). Instead, a “court is entitled to rely, in 

determining whether a genuine issue of material fact exists on a 

particular issue, only upon those portions of the verified pleadings, 

depositions, answers to interrogatories and admissions on file, 

together with any affidavits submitted, specifically called to its 

attention by the parties.” Id. See also Fed. R. Civ. P. 56(c)(3). 

II. 

 In August 2007, defendant obtained a loan in the principal amount 

of $9,600,000.00. Plaintiff MSCI 2007-IQ16 Granville Retail, LLC’s 

First Amended Complaint (“Amended Complaint”), ECF 29, ¶ 8; Amended 

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Answer of Defendant UHA Corporation, LLC to the Complaint (“Answer to 

Amended Complaint”), ECF 36, ¶ 1. In order to secure obligations 

evidenced by its note, defendant executed and delivered to the 

original lender three mortgages, encumbering certain land and 

improvements located in Delaware, Fairfield, and Franklin Counties. 

Amended Complaint, ¶¶ 11-15; Answer to Amended Complaint, ¶ 1. 

Defendant also granted the holder of the mortgages a security interest 

in any items as part of the real estate that may be subject to a 

security interest under the Uniform Commercial Code, including, but 

not limited to “all inventory, machinery, furniture, equipment and 

fixtures and other property of every kind and nature whatsoever 

located upon the Real Estate or the improvements thereon or 

appurtenant thereto or used in connection with the present or future 

operation of the Real Estate or the improvements thereon[.]” Amended 

Complaint, ¶ 17; Answer to Amended Complaint, ¶ 1. In addition, 

defendant executed and delivered to the original lender certain 

assignments of leases and rents, assigning certain additional 

collateral in the mortgages as security, including “leases, subleases, 

tenancies, subtenancies, licenses, contracts, contract rights and 

occupancy agreements affecting any portion of the mortgaged property, 

together with rents, revenues, payments, income, issues, profits 

deposits, accounts, cash, bankruptcy claims, lease guaranties, 

proceeds and other rights of UHA.” Amended Complaint, ¶ 26; Answer to 

Amended Complaint, ¶ 1. 

 The note and mortgages were assigned and transferred by allonges 

to various entities, and ultimately to plaintiff. Amended Complaint, 

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¶¶ 9, 12, 14, 16; Answer to Amended Complaint, ¶ 1. The UCC-1 

financing statement securing the security interest in the personal 

property was also assigned to plaintiff, Amended Complaint, ¶¶ 19-25; 

Answer to Amended Complaint, ¶ 1, as were the assignments of leases 

and rents. Amended Complaint, ¶¶ 27, 29, 31; Answer to Amended 

Complaint, ¶ 1.1

 

 According to plaintiff, defendant 

defaulted on its obligations to Plaintiff under the Loan 

Documents by virtue of various acts and failures to act, 

including without limitation its failure to make payments 

when due of amounts payable on the Note, as a result of 

which Assignee #1 accelerated the maturity of the Note and 

instituted this foreclosure action. 

Amended Complaint, ¶ 34. 

 Defendant has conceded that it defaulted on its obligations under 

the loan documents, resulting in the accelerated maturity of the note. 

Answer to Amended Complaint, ¶ 1. In response to the Amended 

Complaint, defendant raised two affirmative defenses. Id. at ¶¶ 5-6. 

First, defendant alleged that, “since the commencement of this action 

in June 6, 2011, substantial payments in the form of adequate 

protection payments were made to substitute plaintiff’s predecessor in 

interest” and after the bankruptcy court dismissed UHA’s bankruptcy 

filing, “additional, voluntary payments continued for more than an 

additional 12 months[.]” Id. at ¶ 5. Defendant also asserted the 

defense of accord and satisfaction or settlement as a bar to 

plaintiff’s claims for relief: 

 

1

 Although this litigation was initiated by Bank of America, plaintiff was 

thereafter substituted as plaintiff. Agreed Order Substituting MSCI 2007-

IQ16 Granville Retail, LLC as Plaintiff Herein, ECF 16. See also Amended 

Complaint, ¶ 9; Answer to Amended Complaint, ¶ 1. 

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As its Second Affirmative Defense Defendant states that 

during the period between May of 2012 and December 2012, 

Debtor and Plaintiff’s predecessor in interest, negotiated 

a resolution of the controversy between the parties in the 

nature of a loan modification agreement. At the request of 

said predecessor, defendant consented and attempted to 

arrange a “soft block” Controlled Account with Fifth Third 

Bank, the designated financial institution of the lender. 

Creation of such an account was a prerequisite to 

completion of the agreed to loan modification documents. 

Through no fault of Defendant, and after expenditure of 

considerable time and effort, Fifth Third Bank suddenly and 

without reasonable explanation refused to proceed further 

with the Controlled Account agreement. Thereafter 

defendant was unable to obtain cooperation from the lender 

or its servicer in completing the arrangements described 

above. The course of dealing described represents an 

Accord and Satisfaction or Settlement barring relief to 

Plaintiff in this case. 

Id. at ¶ 6. 

 Rachel Naylor, asset manager of LNR Partners, LLC,2

 avers that, 

as of April 4, 2014, defendant is indebted in the principal amount of 

$9,511,064.08, plus accrued and unpaid interest at the contract rate 

in the amount of $1,663,015.86 (as of May 1, 2014), plus accrued and 

unpaid interest at the default rate in the amount of $2,189,064.24, 

plus late charges and various taxes and other amounts advanced or 

incurred by plaintiff or its predecessors in interest, as well as 

additional interest thereon. Naylor Affidavit, ¶ 9. According to Ms. 

Naylor, the loan payoff amount totals $13,727,204.41 as of April 4, 

2014. Exhibit I, attached to Naylor Affidavit. 

 Although defendant has conceded that it defaulted on its 

obligations under the loan documents, Answer to Amended Complaint, ¶ 

1, and asserts in its counterclaim that it has made substantial 

 

2

 LNR Partners, LLC, is identified as both the special servicer of the loan 

evidenced by the note and a non-member manager of plaintiff. Affidavit of 

Rachel Naylor (“Naylor Affidavit”), ¶ 2, attached as Exhibit 1 to Motion for 

Summary Judgment. 

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payments since the commencement of this action, id. at ¶ 5, 

Defendant’s Response offers no evidence of the amount owed by 

defendant. 

III. 

 Under Ohio law, which controls in this diversity action, see 

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941), a 

mortgagee is entitled to foreclose on a mortgage upon evidence that 

the note and mortgage have been executed and delivered, that the 

mortgage has been validly recorded, that the amount due is 

established, and that the mortgagor is in default. Fidelity Tax, 

L.L.C. v. Hall, 2013–Ohio–3165, 2013 WL 3808206, at *3 (10th Dist. Ct. 

App. July 18, 2013); Chase Home Fin., L.L.C. v. Heft, 2012-Ohio-876, 

2012 WL 691703 (3rd Dist. Ct. App. Mar. 5, 2012). 

 The pleadings of the parties establish, for purposes of this 

litigation, the existence, execution, and delivery of the note and 

the three recorded mortgages securing defendant’s obligations under 

defendant’s note. Amended Complaint, ¶¶ 8, 11, 13, 15; Answer to 

Amended Complaint, ¶ 1. 

 Defendant opposes the Motion for Summary Judgment in three 

respects: (1) defendant challenges plaintiff’s standing to pursue the 

action, (2) defendant disputes the sufficiency of plaintiff’s 

calculation of the amount due, and (3) defendant contends that the 

parties “agreed to agree to a loan modification.” Each argument will 

be discussed in turn. 

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1. Standing 

 Defendant challenges plaintiff’s standing as the real party in 

interest in this action. Defendant’s Response, pp. 2-3. A plaintiff 

who does not hold an interest in a note or mortgage at the time that 

it files a foreclosure action has no standing to invoke a court’s 

jurisdiction. Fed. Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio 

St. 3d 13 (2012). Moreover, that lack of standing is fatal to the 

litigation and cannot be cured after the commencement of the action by 

mere substitution as the real party in interest. Id. 

As noted supra, the action was initiated in the name of Bank of 

America, which identified itself as the “successor by assignment from 

National City Bank,” the original lender and mortgagee. Complaint, 

ECF 1, ¶ 2. There is no evidence that, at the time the action was 

filed, Bank of America did not hold the note and mortgages or that the 

jurisdiction of this Court had not been properly invoked. See also 

Preliminary Pretrial Order, ECF 21, p. 1 (“The parties agree that the 

Court has subject matter jurisdiction under 28 U.S.C. § 1332.”). 

Moreover, defendant previously agreed that plaintiff is the current 

assignee, pursuant to assignments and allonges, is the real party in 

interest, “and is therefore entitled to prosecute this action as 

plaintiff.” Agreed Order Substituting MSCI 2007-IQ16 Granville 

Retail, LLC as Plaintiff Herein, ECF 16, pp. 2-3. See also Amended 

Complaint, ¶ 9; Answer to Amended Complaint, ¶ 1. This Court has 

previously rejected defendant’s challenge to plaintiff’s standing to 

prosecute this action, Opinion and Order, ECF 72, pp. 8-9, and the 

Court reaffirms that conclusion now. 

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2. Calculation of Amount Due 

 As noted supra, defendant offers no evidence relating to the 

amount actually due in connection with the loan. Rather, defendant 

disputes the calculation of the amount reflected in the Naylor 

Affidavit, “since [the Naylor Affidavit] is not made on the personal 

knowledge of the affiant except in a limited fashion.” Defendant’s 

Response, p. 6. According to defendant, plaintiff should have 

provided “an affidavit from each and every entity/affiant that came 

into possession of the loan documents upon which this foreclosure 

action is sought and the duration of such custody, the identification 

of such entity providing the information and the date of transfer of 

the loan documents to the affiant.” Id. at p. 5.3

 The calculations reflected in the Naylor Affidavit are based on 

Ms. Naylor’s personal review of documents relating to the loan, and in 

particular the “Transaction History” and the “Payoff Statement,” 

through April 4, 2014. Naylor Affidavit, ¶ 7. Ms. Naylor defines the 

“Transaction History” and describes its origins as follows: 

The Transaction History was created by the master servicer 

for the Loan at the inception of the securitization of the 

Loan in the ordinary course of business of the master 

servicer by persons with firsthand knowledge of the 

information contained therein, at or about the time that 

such knowledge was acquired. The Transaction History was 

integrated into LNR’s records when the Loan was transferred 

to LNR for special servicing and it is the only record of 

the Loan history and the record upon which LNR relies. 

Since the transfer of the Loan to LNR for special 

servicing, the Transaction History has been maintained by 

the master servicer under LNR’s direct supervision and 

control as part of the ordinary course of business of LNR 

 

3

 Defendant also challenges, on the same basis, the sufficiency of the 

authentication of various transaction documents. However, as the Court noted 

supra, defendant’s own filings admit plaintiff’s allegations as they relate 

to those documents. 

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as special servicer of the Loan. Since the transfer of the 

Loan to LNR for special servicing, I have obtained 

knowledge of all Loan transactions and I, or other LNR 

employees in my group, direct the master servicer to enter 

the information at or about the time of the occurrence of 

the event that is recorded. I have relied upon the 

accuracy of the Transaction History in making this 

affidavit . . . . 

Id.4

 Ms. Naylor describes the “Payoff Statement,” in which the payoff 

amount is summarized, as follows: 

The Payoff Statement was made at or near the time it is 

dated by or from information obtained from the Transaction 

History and the Statement Backup, was transmitted by a 

person with first-hand knowledge of the information 

contained therein, and is kept in the course of LNR’s 

regularly-conducted business activity. It is the regular 

practice of LNR to make and keep such records. 

Id. at ¶ 8. 

 Affidavits submitted in connection with motions for summary 

judgment “must be made on personal knowledge, set out facts that would 

be admissible in evidence, and show that the affiant . . . is 

competent to testify on the matters stated.” Fed. R. Civ. P. 

56(c)(4). However, “[p]ersonal knowledge is not strictly limited to 

actions in which the affiant directly participated, but may be derived 

from reviewing the content of files and records.” Ridenour v. 

Collins, 692 F. Supp. 2d 827, 846 (S.D. Ohio 2010). Accord Howard v. 

Chase Home Fin., LLC, No. 11-10897, 2012 WL 3151571, at *1 n.3 (E.D. 

Mich, Aug. 2, 2012). 

 It is true that Ms. Naylor may not have personally participated 

in all the events underlying every entry in the Transaction History 

and upon which she relied in producing her affidavit. However, 

 

4

 The Transaction History is reflected at Exhibit H, attached to the Naylor 

Affidavit. 

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plaintiff has established that the records upon which Ms. Naylor 

personally relied would be admissible in evidence. Records of a 

regularly conducted activity are admissible into evidence where 

(A) the record was made at or near the time by--or from 

information transmitted by--someone with knowledge; 

(B) the record was kept in the course of a regularly 

conducted activity of a business, organization, occupation, 

or calling, whether or not for profit; 

(C) making the record was a regular practice of that 

activity; 

(D) all these conditions are shown by the testimony of the 

custodian or another qualified witness, or by a 

certification that complies with Rule 902(11) or (12) or 

with a statute permitting certification; and 

(E) the opponent does not show that the source of 

information or the method or circumstances of preparation 

indicate a lack of trustworthiness. 

Fed. R. Evid. 803(6) (eff. Dec. 1., 2014). The Naylor Affidavit

establishes that the records of which Ms. Naylor has personal 

knowledge qualify as admissible business records and defendant has not 

shown that the source of the information contained in those records, 

or that the method or circumstances of the preparation of those 

records, indicate that the records lack trustworthiness. 

 The Court therefore concludes that the Naylor Affidavit is 

properly considered in resolving the Motion for Summary Judgment. See 

also Clark v. Main St. Acquisition Corp., 553 F. App’x 510, 516 (6th 

Cir. 2014) (corporate representative’s personal review of and reliance 

on the corporation’s business records in preparing an affidavit 

qualify as the “personal knowledge” of the affiant). Moreover, 

because defendant has offered no evidence controverting plaintiff’s 

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calculations, the Court finds that plaintiff has established the 

amounts due, as reflected in Paragraph 9 of the Naylor Affidavit. 

3. Agreement to Agree to Modify the Loan 

 Finally, defendant argues that summary judgment is not warranted 

because the parties “agreed to agree to a loan modification:” 

[P]laintiff’s predecessor in interest conditioned further 

progress on the compromise of the parties on the execution 

of a “controlled account.” That controlled account, at the 

insistence of the servicer, was to be opened at Fifth Third 

Bank. In an effort to comply with the condition precedent, 

defendant attempted to establish the required account, but 

was stymied in that effort by the sudden and unexplained 

refusal of Fifth Third Bank to proceed . . . . No 

alternative was presented by the special servicer and no 

further communication was received by the defendant. 

In essence, the parties entered into an agreement to agree. 

Defendant’s Response, p. 7. 

 In Ohio, an “agreement to agree” can be, under certain 

circumstances, enforceable: “The enforceability of such an agreement 

depends rather on whether the parties have manifested an intention to 

be bound by its terms and whether these intentions are sufficiently 

definite to be specifically enforced.” Normandy Place Assocs. v. 

Beyer, 2 Ohio St. 3d 102, 105-06 (Ohio 1982). See also M.J. DiCorpo, 

Inc. v. Sweeney, 69 Ohio St. 3d 497, 503 (Ohio 1994). “ʽThe actions 

of the parties may show conclusively that they have intended to 

conclude a binding agreement, even though one or more terms are 

missing or are left to be agreed upon.’” B.W. Rogers Co. v. Wells 

Bros. Inc., 2012-Ohio-750, 2012 WL 605519, at *6 (3rd Dist. Ct. App. 

Feb. 27, 2012) (quoting Oglebay Norton Co. v. Armco, Inc., 52 Ohio St. 

3d 232, 236 (Ohio 1990)). “Therefore, a trial court must consider 

whether the parties manifested a sufficiently definite intention to be 

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bound such that an agreement would be specifically enforceable, or 

whether they merely negotiated toward a formal contract without ever 

reaching it.” Id. (citing Oglebay Norton Co., 52 Ohio St. 3d at 236; 

Brotherwood v. Gonzalez, No. 10-06-33, 2007 WL 1881300 (3rd Dist. Ohio 

Ct. App. July 2, 2007)). 

 In support of its contention that the parties entered into an 

agreement to agree to a loan modification, defendant offers copies of 

what appears to be an exchange of email correspondence reflecting the 

parties’ efforts to negotiate a loan modification. Exhibit C attached 

to Defendant’s Response. According to the emails, the parties were 

“currently negotiating a loan modification agreement” that “remain[ed] 

under and subject to lender approval.” Id. at p. 1. The proposed 

modification would have “require[d] the parties to enter into a Cash 

Management Agreement and a Springing DACA with Fifth Third [Bank],” 

but Fifth Third Bank “pass[ed] on [the] opportunity.” Id.; Exhibit B

attached to Defendant’s Response. 

 Defendant has failed to offer any evidence that the parties 

“agreed to agree to a loan modification.” The email correspondence 

referred to by defendant demonstrates that the parties were attempting 

to negotiate a loan modification. The evidence is not, however, 

sufficient to establish that that the parties either intended to or 

actually entered into a binding agreement to enter into a loan 

modification. To the contrary, plaintiff’s apparent representation 

that the parties were “currently negotiating a loan modification 

agreement” that “remain[ed] under and subject to lender approval,” 

Exhibit C attached to Defendant’s Response, suggests that the parties 

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were merely negotiating a formal loan modification that was never 

finalized. Defendant seems to argue that its unsuccessful attempt to 

open an account at Fifth Third Bank is evidence that the parties 

“agreed to agree to a loan modification.” See Defendant’s Response, 

p. 7. However, as discussed supra, the email correspondence produced 

by defendant suggests otherwise. It is significant in this regard 

that defendant characterizes the required opening of a Fifth Third 

Bank account as a “condition precedent” to the purported agreement; 

the fact that this condition precedent was never met or satisfied 

undermines any suggestion that the parties entered into an enforceable 

agreement to agree. See Troha v. Troha, 663 N.E.2d 1319, 1323 (2nd 

Dist. Ohio Ct. App. 1995) (“A condition precedent is a condition which 

must be performed before the obligations in the contract become 

effective.”) (citing Mumaw v. W. & S. Life Ins. Co., 97 Ohio St. 1 

(Ohio 1917)). Moreover, defendant’s arguments to the contrary 

notwithstanding, the Court notes that defendant’s Answer to Amended 

Complaint does not expressly assert the existence of an “agree[ment] 

to agree to a loan modification” as an affirmative defense or 

counterclaim. The Answer to Amended Complaint asserts as defenses 

only accord and satisfaction and settlement, but there is no evidence 

whatsoever that the parties entered into an actual loan modification 

agreement. 

 In short, the Court concludes that defendant has not raised a 

genuine issue of material fact and that plaintiff is entitled to 

judgment as a matter of law. Plaintiff’s Motion for Summary Judgment, 

ECF 61, is therefore GRANTED. 

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 Plaintiff is DIRECTED to provide, within seven (7) days, a 

proposed order directing foreclosure of the mortgaged premises. 

February 10, 2015 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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