[Cite as Bank of Am. v. Smith, 2014-Ohio-2845.] 

 

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Reversed and Cause Remanded 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

BANK OF AMERICA, N.A., 

SUCCESSOR BY MERGER TO BAC 

HOME LOANS SERVICING LP, f.k.a. 

COUNTRYWIDE HOME LOANS 

SERVICING, LP, 

 Plaintiff-Appellee, 

 vs. 

SANDRA K. SMITH, 

 Defendant-Appellant, 

 and 

JOHN DOE, SPOUSE OF SANDRA K. 

SMITH, IF MARRIED (NAME 

UNKNOWN), 

MIDLAND FUNDING LLC, 

CREDIT ACCEPTANCE 

CORPORATION, 

CITY OF CINCINNATI, 

THE STATE OF OHIO DEPARTMENT 

OF TAXATION, 

THE UNITED STATES OF AMERICA, 

 and 

HAMILTON COUNTY TREASURER, 

 Defendants. 

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APPEAL NO. C-130306 

TRIAL NO. A-1200156 

O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

 2

Date of Judgment Entry on Appeal: June 30, 2014 

Lerner, Sampson, & Rothfuss and Bill L. Purtell, for Plaintiff-Appellee, 

 

Dann, Doberdruk & Harshman, Marc E. Dann, Grace M. Doberdruk and Daniel M. 

Solar, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. 
OHIO FIRST DISTRICT COURT OF APPEALS

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DINKELACKER, Presiding Judge. 

{¶1} In two assignments of error, defendant-appellant Sandra K. Smith 

argues that the trial court improperly granted the motion for summary judgment of 

plaintiff-appellee Bank of America, NA, in this foreclosure case. We agree. 

Filing of Foreclosure Action 

Leads To Summary Judgment 

{¶2} Bank of America filed a complaint alleging that it was the holder of a 

note and mortgage on property owned by Smith, and that Smith had failed to make 

her mortgage payments. In the first paragraph of the complaint, Bank of America 

identified the note as “attached exhibit A.” In paragraph two of the second count, 

Bank of America identified the mortgage as “attached exhibit B.” The documents 

were not authenticated by affidavit. In paragraph one of her pro se answer, Smith 

stated that she “lacks sufficient information and/or knowledge to either admit or 

deny that Plaintiff is the holder of a certain promissory note.” In paragraph four, she 

stated that she “lacks sufficient information and/or knowledge to either admit or 

deny that Plaintiff is the holder of a Mortgage Deed as alleged in paragraph 2 of 

Plaintiff’s Complaint, count 2.” 

{¶3} One month after filing her answer, Smith, now represented by 

counsel, filed a motion to dismiss the complaint on the basis that the copy of the note 

attached to the complaint was defective. She claimed that the copy attached to the 

complaint was different from the copy filed in a previously-dismissed foreclosure 

action. “The differences in the endorsements indicate that Plaintiff Bank of America 

does not own Defendant Sandra Smith’s note.” In its response to Smith’s argument, 

Bank of America only argued that “the failure to provide the requisite documents 

with the filing of Plaintiff’s complaint is not grounds for dismissal,” and that the 
OHIO FIRST DISTRICT COURT OF APPEALS

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proper recourse was to serve a motion for a more definite statement pursuant to 

Civ.R. 12(E). Smith did not file a motion for a more definite statement. The trial 

court never ruled on Smith’s motion to dismiss the complaint before granting 

summary judgment in favor of Bank of America. 

{¶4} When Bank of America filed its motion for summary judgment, it 

concurrently filed an affidavit from an assistant vice president. In the affidavit, the 

affiant stated that she had “reviewed the attached records,” and that Bank of America 

was in possession of the note. But the only record attached to the affidavit was some 

account information showing the amount due to Bank of America. This information 

did not list the complete account history—beginning with a zero balance, listing all 

the payments and charges, and ending with the amount owed. At no point, did the 

affiant identify either the note or mortgage attached to the complaint. Based on the 

motion and affidavit, the magistrate recommended that the trial court grant Bank of 

America’s motion for summary judgment. 

{¶5} In her objections to the magistrate’s decision granting summary 

judgment, Smith raised the issue of the failure of Bank of America to properly 

authenticate the documents pursuant to Civ.R. 56(E). She argued that “[a]t no point 

in the Motion or Reply does Plaintiff establish through proper evidence under Civ.R. 

56(E) that the alleged Note, attached to the Complaint as Exhibit A, is a true and 

accurate copy of the original blue-ink signed Note in this matter.” In response to this 

argument, Bank of America simply asserted that the documents were attached to the 

complaint and referenced therein, thus “the note and mortgage were identified into 

the record.” The trial court overruled Smith’s objections, and granted Bank of 

America’s motion for summary judgment. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Bank Failed To Support Summary Judgment 

Motion With Properly Authenticated Documents 

{¶6} In her first assignment of error, Smith argues that Bank of America 

failed to meet its burden under Civ.R. 56 by failing to properly submit evidence 

establishing that there was no genuine issue of material fact for trial. We agree. 

{¶7} In order to establish that it was entitled to summary judgment, Bank 

of America had to establish (1) that there was no genuine issue as to any material 

fact; (2) that it was entitled to judgment as a matter of law; and (3) that reasonable 

minds could come to but one conclusion, and that that conclusion is adverse to 

Smith, who was entitled to have the evidence construed most strongly in her favor. 

See Bostic v. Connor, 37 Ohio St.3d 144, 524 N.E.2d 881 (1988). Once a motion for 

summary judgment has been made and supported as provided in Civ.R. 56(C), the 

nonmoving party has a reciprocal burden to set forth specific evidentiary facts 

showing the existence of a genuine issue for trial, and cannot rest on the allegations 

or denials in the pleadings. Wing v. Anchor Media, Ltd. Of Texas, 59 Ohio St.3d 

108, 111, 570 N.E.2d 1095 (1991). But, if the moving party does not meet its initial 

burden, then no duty arises on the part of the responding party to produce evidence 

in opposition to the motion, and the motion must be denied. Stinespring v. Natorp 

Garden Stores, 127 Ohio App.3d 213, 216, 711 N.E.2d 1104 (1st Dist.1998), citing 

Vahila v. Hall, 77 Ohio St.3d 421, 430, 674 N.E.2d 1164 (1997). 

{¶8} In a residential foreclosure action, the court is faced with two distinct, 

but related issues. Metro. Life Ins. v. Triskett Illinois, Inc., 97 Ohio App.3d 228, 234, 

646 N.E.2d 528 (1st Dist.1994). The first issue presents the legal question of whether 

the mortgagor has defaulted on the note. Id. The second issue entails an inquiry 

into whether the mortgagor's equity of redemption should be foreclosed. Id. We will 

address each issue in turn. 
OHIO FIRST DISTRICT COURT OF APPEALS

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The Note 

{¶9} In the first count of its complaint, Bank of America claimed that it was 

the “holder of a certain promissory note,” that Smith had breached the terms of the 

promissory note by failing to make payments, that Bank of America was entitled by 

the terms of the note to accelerate the indebtedness due, and that it was entitled to 

payment of the full amount owed, which it stated was $608,585.98, along with 

assorted other charges and fees. Bank of America also alleged that it had “satisfied 

all conditions precedent pursuant to the promissory note.” 

{¶10} A promissory note is simply an instrument that evidences an 

agreement to pay a monetary obligation. R.C. 1309.102(A)(65). When a party fails 

to make payments on the note, that party has breached the terms of that agreement. 

In this way, an action to enforce a promissory note is akin to an action for breach of 

contract. See Chattree v. Chattree, 8th Dist. Cuyahoga No. 95051, 2011-Ohio-1925. 

“It is axiomatic that a promissory note, even though its execution may be a condition 

of another contract, constitutes a separate enforceable contract.” Fisk Alloy Wire, 

Inc. v. Hemsath, 6th Dist. Lucas No. L-05-1097, 2005-Ohio-7007, ¶ 40, citing Metro. 

Life Ins., 97 Ohio App.3d 228, 646 N.E.2d 528. 

{¶11} To succeed on a breach of contract claim, a plaintiff must 

demonstrate the existence of a contract, performance by the plaintiff, a breach by the 

defendant, and resulting damages. Huttenbauer Land Co., LLC v. Harley Riley, 

Ltd., 1st Dist. Hamilton No. C-110842, 2012-Ohio-4585, ¶ 8, citing Brunsman v. W. 

Hills Country Club, 151 Ohio App.3d 718, 2003-Ohio-891, 785 N.E.2d 794, ¶ 11 (1st 

Dist.). Where, as here, a party seeks to enforce its rights under the terms of a written 

agreement, the party must produce the writing itself—or some acceptable 

explanation as to why that document cannot be produced. This court has held that 
OHIO FIRST DISTRICT COURT OF APPEALS

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[w]here proof is to be made of some fact which is recorded in a writing, 

the best evidence of the contents of the writing consists in the actual 

production of the document itself. And the general rule is that 

secondary evidence of the contents of a written instrument cannot be 

admitted until the nonproduction of the original has been satisfactorily 

accounted for. 

Smith v. Andres, 1st Dist. Hamilton No. C-77297, 1978 Ohio App. LEXIS 8118 (June 

28, 1978). 

{¶12} Throughout the proceedings below, Bank of America had claimed that 

the promissory note was properly incorporated into the record. For the first time on 

appeal, it argues that the note was properly authenticated because it was selfauthenticating as a negotiable instrument pursuant to Evid.R. 902(9). But Bank of 

America has cited no case law in support of its proposition that a photocopy of a 

promissory note is self-authenticating when no evidence has been presented that it is 

a true and accurate copy. 

{¶13} Evid.R. 902(9) expressly adopts the tenets of general commercial law 

in applying the doctrine of self-authentication to commercial paper, signatures 

thereon, and documents relating thereto. There are four provisions that relate to 

self-authentication in the commercial code, R.C. 1301.307, 1303.36, 1308.04, and 

1303.65. See Weissenberger, Ohio Evidence, Section 902.97 (2013). But only R.C. 

1301.307 addresses the authentication of entire documents, and that statute is 

limited to certain document types, of which a photocopied promissory note is not 

one. Two of the remaining statutes address only the authentication of signatures on 

certain documents. See R.C. 1303.36 and 1308.04. And the fourth statute addresses 

only the issue of evidence of dishonor and notice of dishonor. R.C. 1303.65. None of 
OHIO FIRST DISTRICT COURT OF APPEALS

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these statutes, and therefore Evid.R. 902(9), stands for the proposition that a 

photocopy of a promissory note is self-authenticating. 

{¶14} A review of the case law in Ohio indicates that, in order for a trial 

court to consider the content of a promissory note in a foreclosure action, that note 

must be properly authenticated and admitted into the record. The Sixth Appellate 

District held that an affidavit that failed to properly authenticate a promissory note 

in a foreclosure case precluded its consideration and prevented summary judgment 

in favor of the bank. HSBC Mortg. Servs., Inc. v. Edmon, 6th Dist. Erie No. E-11-

046, 2012-Ohio-4990, ¶ 23; see also BAC Home Loans Servicing v. Moore, 5th Dist. 

Licking No. 12 CA 50, 2012-Ohio-6284, ¶ 27; Wachovia Bank of Delaware v. 

Jackson, 5th Dist. Stark No. 2010-CA-00291, 2011-Ohio-3203, ¶ 39, 53-57. 

{¶15} In its complaint, Bank of America’s only claim that Smith owed it 

money arises from its allegation that Smith breached the terms of the promissory 

note. And Bank of America failed to properly introduce the note into the record to 

support its motion for summary judgment. Therefore, summary judgment was 

improper as to that claim. 

The Mortgage 

{¶16} Similarly, Bank of America failed to produce an authenticated copy of 

the mortgage in support of its motion for summary judgment. As with the note, 

Bank of America argues for the first time on appeal that the mortgage was selfauthenticating. In this instance, the bank claims that the mortgage was selfauthenticating as a public record. We disagree. 

{¶17} Evid.R. 1005 provides that “the contents of an official record * * * may 

be proved by copy, certified as correct in accordance with Rule 902, Civ.R. 44, 

Crim.R. 27 or testified to be correct by a witness who has compared it with the 
OHIO FIRST DISTRICT COURT OF APPEALS

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original.” For domestic public records, the certification will be sufficient if it bears 

an official seal and a signature purporting to be an attestation or execution. State v. 

Dominguez, 1st Dist. Hamilton No. C-980148, 1999 Ohio App. LEXIS 184 (Jan. 29, 

1999). The certification “may be made by any public officer having a seal of office 

and having official duties in the political subdivision in which the record is kept, 

authenticated by the seal of his office.” Id. 

{¶18} In this case, there is nothing from the Hamilton County Recorder’s 

office certifying that the photocopy was an accurate reproduction of the original. 

Therefore, it does not qualify for self-authentication pursuant to Evid.R. 902. 

Without an affidavit attesting to its authenticity, it was not properly before the trial 

court. Therefore the trial court erred when it considered the mortgage as evidence 

when it granted Bank of America’s motion for summary judgment. 

{¶19} Smith’s first assignment of error is sustained. 

Reformation of the Mortgage Not Established 

{¶20} In its second assignment of error, Smith argues that the trial court 

erred by granting a judgment of foreclosure because Bank of America was not 

entitled to reformation of the mortgage when its predecessor was inexcusably 

negligent in its preparation. Bank of America argues that there was no negligence, 

but rather a simple scrivener’s error in the description of the property in the 

mortgage. But, because the mortgage was not properly in the record, Bank of 

America failed to meet its initial burden to demonstrate that it was entitled to 

summary judgment. Solely for this reason, we sustain Smith’s second assignment of 

error. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Conclusion 

{¶21} Without presenting sufficient admissible evidence to support the 

claims set forth in its foreclosure complaint, Bank of America failed to meet its initial 

burden to demonstrate that it was entitled to summary judgment. Had Bank of 

America simply produced properly authenticated copies of the promissory note and 

mortgage, the outcome of this case may have been different. But we must reverse the 

decision of the trial court granting summary judgment in favor of Bank of America, 

and remand this cause for further proceedings consistent with law and this opinion. 

Judgment reversed and cause remanded. 

FISCHER, J., concurs in judgment only. 

DEWINE, J., concurs. 

DEWINE, J., concurring in judgment. 

{¶22} It is fundamental that “[d]ocuments that have not been sworn, certified, 

or authenticated by way of affidavit ‘have no evidentiary value.’ ” Michell v. Internatl. 

Flavors & Fragrances, Inc., 179 Ohio App.3d 365, 2008-Ohio-3697, 902 N.E.2d 37, 

¶ 17 (1st Dist.), citing Lance Acceptance Corp. v. Claudio, 9th Dist. Lorain No. 

02CA008201, 2003-Ohio-3503, ¶ 15. Simply attaching the note and mortgage to the 

complaint does not make them proper for consideration on summary judgment. As a 

result, I concur with the conclusion reached in the lead opinion. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.