[Cite as HSBC Mtge. Servs. v. Williams, 2014-Ohio-3778.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

HSBC MORTGAGE SERVICES, : 

 Plaintiff-Appellee, : CASE NO. CA2013-09-174 

 

 : O P I N I O N

 - vs - 9/2/2014 

 : 

DAVID C. WILLIAMS, et al., : 

 Defendants-Appellants. : 

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CV2012-10-3600 

Ulmer and Berne LLP, Melissa L. Zujkowski, Warren T. McClurg II, Skylight Office Tower, 

1660 West 2nd Street, Suite 1100, Cleveland, Ohio 44113-1448, for plaintiff-appellee 

Bruce M. Broyles, 5815 Market Street, Suite 2, Boardman, Ohio 44512, for defendantappellant, David C. Williams 

Tamela K. Williams, 173 Carmen Avenue, Hamilton, Ohio 45013, defendant-appellant, pro 

se 

Jackson T. Moyer, 471 East Broad Street, 12th Floor, Columbus, Ohio 43215, for defendant, 

Ohio Receivables LLC 

 PIPER, J.

{¶ 1} Defendant-appellant, David C. Williams, appeals the decision of the Butler 

County Common Pleas Court granting summary judgment to plaintiff-appellee, HSBC 
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Mortgage Services, Inc., in its foreclosure action against appellant. For the reasons that 

follow, we affirm the judgment of the trial court. 

{¶ 2} In 2005, appellant borrowed $136,000 from Wilmington Finance. The loan was 

evidenced by a promissory note and secured by a mortgage on appellant's home in 

Hamilton, Ohio. Acting as nominee for Wilmington Finance, Mortgage Electronic Registration 

Systems ("MERS") assigned the mortgage to HSBC. The assignment was recorded on June 

13, 2012. 

{¶ 3} By early 2012, appellant stopped making his mortgage payments. On March 

17, 2012, HSBC sent appellant a "Notice of Right to Cure Default." Appellant failed to cure 

the default. On October 3, 2012, HSBC commenced a foreclosure action against appellant, 

attaching a copy of the promissory note and mortgage to its complaint. 

{¶ 4} On December 17, 2012, HSBC filed a motion for summary judgment on its 

foreclosure complaint and contemporaneously filed an "Affidavit of Amount Due," prepared 

by Heather Burgos, the Vice President and Assistant Secretary of the Administrative Services 

Division of HSBC Mortgage. The trial court granted HSBC's motion for summary judgment. 

Appellant moved for reconsideration, arguing that he had not been given sufficient time to 

respond to the motion for summary judgment. The trial court agreed, and thus vacated its 

decision granting summary judgment to HSBC. Appellant then filed a memorandum in 

opposition to HSBC's motion for summary judgment, and HSBC again moved for summary 

judgment. The trial court again granted summary judgment to HSBC. Appellant appealed 

the trial court's decision to this court, which dismissed appellant's appeal for lack of a final, 

appealable order. HSBC Mortgage Services v. Williams, 12th Dist. Butler No. CA2013-04-

064 (May 21, 2013) (Dismissal entry). On June 12, 2013, the trial court reactivated the case, 

and on June 26, 2013, the trial court again granted summary judgment to HSBC. 

{¶ 5} Appellant now appeals, assigning the following as error: 
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{¶ 6} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO 

APPELLEE. 

{¶ 7} Appellant contends that the trial court erred in granting summary judgment to 

HSBC on its foreclosure action against him. 

{¶ 8} This court's review of a trial court's decision granting summary judgment is de 

novo. Lindsay P. v. Towne Properties Asset Mgt. Co., Ltd., 12th Dist. Butler No. CA2012-11-

215, 2013-Ohio-4124. To prevail on a motion for summary judgment, the moving party must 

show that (1) there are no genuine issues of material fact remaining to be litigated, (2) it is 

entitled to judgment as a matter of law, and (3) reasonable minds can come to only one 

conclusion and that conclusion is adverse to the nonmoving party. Civ.R. 56(C). The 

"moving party has the initial burden of demonstrating that there is no genuine issue of 

material fact concerning an essential element of the opponent's case." (Emphasis sic.) 

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the moving party fails to satisfy its initial 

burden, its motion for summary judgment must be denied. Id. at 293. If the moving party 

satisfies its initial burden, the nonmoving party may not rest on the allegations or denials of 

its pleadings, but instead must meet its reciprocal burden under Crim.R. 56(E) to set forth 

specific facts showing that there is a genuine issue of material fact for trial. Id. 

{¶ 9} Appellant presents several arguments under this assignment of error. First, he 

argues that in its initial decision granting summary judgment to HSBC, "the trial court 

repeatedly stated that [he] failed to support his opposition [to HSBC's motion for summary 

judgment] with evidence." He asserts that the trial court erred in requiring him to provide his 

"own" evidence in order to oppose the motion for summary judgment, because the evidence 

already in the record was sufficient to establish the existence of genuine issues of material 

fact, and therefore it was not necessary for him to present any additional evidence of his own 

to support them. 
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{¶ 10} In furtherance of his argument, appellant cites the language in Bank One, N.A. 

v. Swartz, 9th Dist. Lorain No. 03CA008308, 2004-Ohio-1986, ¶ 12, quoting Dresher v. Burt, 

75 Ohio St.3d 280, 292-293 (1996), which states that "'[w]hile the movant is not necessarily 

obligated to place any of these evidentiary materials in the record, the evidence must be in 

the record or the motion cannot succeed.'" However, this language has no application to this 

case as the language concerns the moving party in summary judgment proceedings, and in 

this case, HSBC, not appellant, was the moving party in these summary judgment 

proceedings. 

{¶ 11} Additionally, a careful reading of the trial court's decision shows that the trial 

court did not place the burden on appellant to present his or her "own" evidence in order to 

oppose HSBC's motion for summary judgment. Instead, the trial court, citing Dresher and its 

progeny, correctly noted that "in response to a properly supported motion for summary 

judgment, the nonmoving party must set forth specific facts which demonstrate that there is a 

genuine issue of material fact for trial, and may not rest on mere allegations or denials in the 

pleading." (Emphasis added.) See also Dresher at 292-293 (once moving party satisfies its 

initial burden of demonstrating that there are no genuine issues of material fact concerning 

an essential element of the nonmoving party's case, nonmoving party must meet its 

reciprocal burden under Crim.R. 56(E) to set forth specific facts showing that there is a 

genuine issue of material fact for trial). The trial court concluded that since appellant had 

failed to set forth such specific facts, HSBC was entitled to summary judgment. 

{¶ 12} Second, appellant argues the trial court erred in determining that (1) Burgos' 

affidavit sufficiently demonstrated her personal knowledge of the matters set forth in her 

affidavit and (2) HSBC was in possession of the original promissory note. Appellant points 

out that the trial court found that under State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 

459 (1981), Burgos' averment in her affidavit that she has personal knowledge of the matters 
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stated therein was sufficient to establish her personal knowledge of those matters, and that 

the burden then shifted to him to establish that she did not possess such personal 

knowledge. Appellant contends that several appellate districts in this state have "rejected or 

altered" the burden-shifting rule in Seminatore, and instead have found that "'[i]f particular 

averments contained in an affidavit suggest that it is unlikely that the affiant has personal 

knowledge of those facts, then * * * something more than a conclusory averment that the 

affiant has knowledge of the facts would be required.'" Bank One, N.A. v. Swarz, 9th Dist. 

Lorain No. 03CA008308, 2004-Ohio-1986, ¶ 14, quoting Merchant's Natl. Bank v. Leslie, 2d 

Dist. Clark No. 3072, 1994 WL 12433, *2 (Jan. 21, 1994). 

{¶ 13} Appellant asserts that the averments in Burgos' affidavit suggest that it is 

unlikely that she has personal knowledge of the facts stated therein and therefore something 

more than her conclusory averment that she had personal knowledge of the facts was 

required. Appellant notes, for instance, that while Burgos averred in her affidavit that she has 

access to and is familiar with HSBC's business records, there is nothing in the affidavit 

showing that she personally reviewed the original copies of the notice of default and 

promissory note and compared them to the copies attached to her affidavit, as required 

under Wachovia Bank of Delaware, N.A. v. Jackson, 5th Dist. Stark No. 2010-CA000291, 

2011-Ohio-3202, ¶ 46-51. Appellant also contends that Burgos' affidavit failed to attach the 

business records she reviewed to determine that HSBC was in possession of the original 

promissory note, as she averred in her affidavit. 

{¶ 14} Civ.R. 56(E) states in pertinent part: 

(E) Form of affidavits; further testimony; defense required

Supporting and opposing affidavits shall be made on personal 

knowledge, shall set forth such 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. Sworn 

or certified copies of all papers or parts of papers referred to in 

an affidavit shall be attached to or served with the affidavit. The 
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court may permit affidavits to be supplemented or opposed by 

depositions or by further affidavits. 

{¶ 15} In Seminatore, 66 Ohio St.2d at 467, the court reversed a court of appeals' 

decision finding an affidavit ineffective, stating as follows: 

While the form of the affidavit of defendant board chairman 

submitted in support of the motion for summary judgment leaves 

much to be desired, it is sufficiently in compliance with Civ.R. 

56(E) as to require the adverse party to respond by affidavit or 

otherwise as provided by Civ.R. 56. The specific allegation in the 

affidavit that it was made upon personal knowledge is sufficient 

to meet this requirement of Civ.R. 56(E) and, if the adverse party 

contends otherwise, an opposing affidavit setting forth the 

appropriate facts must be submitted. There is an affirmative 

indication that defendant board chairman was competent to 

testify as to the matters stated, the affidavit specifically indicating 

that he was the chairman of the board of mental retardation. The 

requirement of Civ.R. 56(E) that sworn or certified copies of all 

papers referred to in the affidavit be attached is satisfied by 

attaching the papers to the affidavit, coupled with a statement 

therein that such copies are true copies and reproductions. 

{¶ 16} Burgos' affidavit states in pertinent part: 

AFFIDAVIT OF AMOUNT DUE

Heather Burgos (signature), being of lawful age and being first duly 

sworn on oath, states and deposes as follows: 

1. I am a VP and Asst Sec (stamp) of the Administrative Services 

Division of the Plaintiff [i.e., HSBC]. I am over the age of eighteen 

years, and I am authorized to make this Affidavit on behalf of the 

Plaintiff. If sworn as a witness I can competently testify to the 

matters stated herein. The statements set forth in this Affidavit are 

true and correct, to the best of my knowledge and belief. 

2. In the regular performance of my job functions, I have access to 

and am familiar with business records maintained by the Plaintiff for 

the purpose of servicing mortgage loans. I have personal 

knowledge of the manner in which these business records are 

created. These records (which include data compilations, 

electronically imaged documents, and others) are: (a) made at or 

near the time of occurrence of the matters set forth by, or from 

information provided by, persons with knowledge of the activity and 

transactions reflected in such records; and (b) kept as a regular 

practice and in the ordinary course of business conducted by the 

Plaintiff. It is the regular practice of the Plaintiff to make and 
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receive such records. In connection with making this Affidavit, I 

reviewed and relied on those business records concerning the loan 

which is the subject of this proceeding ("Loan"). 

3. The Plaintiff is in possession of the original promissory note 

and/or loan agreement ("Note") for this Loan, bearing the date of 

09/15/2005, in which the Defendant(s) David C. Williams promised 

to pay the sum of $136,000.00. 

4. The Note is secured by a mortgage ("Mortgage") dated 

09/15/2005, on real estate together with all improvements thereon. 

5. The business records that I have reviewed indicate that Plaintiff 

caused the attached demand letter and notice of default under the 

mortgage to be mailed to DAVID C. WILLIAMS on 03/17/2012. A 

true and correct copy of the notice and address(es) to which it was 

sent is attached hereto as Exhibit "A." The default has not been 

cured. 

6. The payments due have not been made according to the terms of 

the Note and the Mortgage. The Loan is currently due for the 

01/01/2012 payment and all payments thereafter pursuant to the 

terms of the Note and Mortgage. 

7. As of 11/06/2012, as reflected in Plaintiff's business records 

(consisting of the Note, Mortgage and a printout from the electronic 

servicing system), attached hereto as Exhibit "B," there is due and 

owing on the Loan the sum of $149,805.43[.]" 

{¶ 17} Burgos' affidavit was sufficient to establish that she had personal knowledge of 

the matters averred therein, including that HSBC possessed the original promissory note, 

and if appellant wished to contend otherwise, it was his responsibility to "submit" "an 

opposing affidavit setting forth the appropriate facts[.]" Seminatore, 66 Ohio St.2d at 467. 

Additionally, none of the averments in Burgos' affidavit suggest that it is unlikely that she has 

personal knowledge of the facts stated therein. Swarz, 9th Dist. Lorain No. 03CA008308, 

2004-Ohio-1986 at ¶ 14, quoting Leslie, 2d. Dist. Clark No. 3072, 1994 WL 12433 at *2. 

{¶ 18} Burgos' affidavit discloses the position she holds at HSBC and describes her 

duties there, Maxum Idemn. Co. v. Selective Ins. Co. of South Carolina, 9th Dist. Wayne No. 

11CA0015, 2012-Ohio-2115, ¶ 22, and states how her position at HSBC made her familiar 
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with its account records. Bank of New York Mellon Trust. Co. Natl. v. Mihalca, 9th Dist. 

Summit No. 25747, 2012-Ohio-567, ¶ 17. The nature of the facts stated in Burgos' affidavit, 

combined with her identity as revealed through the position she holds at HSBC and her 

duties there, creates a reasonable inference that Burgos has personal knowledge of the facts 

contained in her affidavit. Compare Fed. Natl. Mtge. Assn. v. Brunner, 6th Dist. Lucas No. L11-1319, 2013-Ohio-128, ¶ 15-16. 

{¶ 19} As for the Fifth District Court of Appeals' decision in Wachovia Bank of 

Delaware, N.A., 2011-Ohio-3202 at ¶ 46, 49, which provides that summary judgment 

affidavits based on documents must include an averment that the affiant compared copies of 

the documents attached to the affidavit with the originals, this court has not adopted this as a 

requirement under Civ.R. 56(E), nor do we intend to do so, as the Ohio Supreme Court has 

not made this a requirement of Civ.R. 56(E). See Seminatore, 66 Ohio St.2d at 466-467. 

{¶ 20} In his third argument, appellant asserts that the trial court erred in determining 

that HSBC complied with the condition precedent in the parties' promissory note requiring it 

to provide him with a notice of default before commencing a foreclosure action against him. 

{¶ 21} Paragraph 7(C) of the promissory note states: 

If I am in default, the Note Holder may send me a written notice 

telling me that if I do not pay the overdue amount by a certain 

date, the Note Holder may require me to pay immediately the full 

amount of Principal which has not been paid and all the interest 

that I owe on that amount. That date must be at least 30 days 

after the date on which the notice is mailed to me or delivered by 

other means. 

{¶ 22} The promissory note defines the term "Note Holder" as "[t]he Lender or anyone 

who takes this Note by transfer and who is entitled to receive payments under this Note[.]" 

Compliance with a notice-of-default provision in a promissory note has been held to be a 

condition precedent to the filing of a foreclosure action. Bank of New York Mellon v. Roarty, 

7th Dist., Mahoning, No. 10-MA-42, 2012-Ohio-1471, ¶ 16-34. 
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{¶ 23} Appellant acknowledged in his memorandum in opposition to HSBC's motion 

for summary judgment that HSBC sent a notice of default to him on March 17, 2012. 

Nevertheless, he asserts that even though he received the March 17, 2012 notice of default, 

HSBC was not the Note Holder at the time the notice of default was sent. He points out that 

the assignment of the mortgage from MERS to HSBC was executed on June 13, 2012, and 

that the allonge attached to the promissory note is undated. Therefore, he contends, the only 

evidence in the record as to the date on which HSBC became the Note Holder is the date of 

the assignment of the mortgage, i.e., June 13, 2012. He also points out that Burgos' affidavit 

states only that HSBC "caused the notice of default to be mailed" to him, and does not state 

whether HSBC was acting on behalf of some other entity. He contends that because the 

March 17, 2012 notice of default was not sent by the Note Holder or the agent of the Note 

Holder, it cannot be deemed to constitute the notice of default required by paragraph 7(C) of 

the promissory note. 

{¶ 24} HSBC responds to this argument by stating that it sent the notice of default to 

appellant after it acquired an interest in the promissory note and mortgage and that the 

assignment of the mortgage executed on June 13, 2012 "was merely a memorialization of 

the transfer of interest, not an indication of the date of the occurrence of the transfer." We 

conclude that while appellant may have shown the existence of an issue of fact as to whether 

or not HSBC was the Note Holder of the parties' promissory note as of March 17, 2012, he 

has failed to show that this issue of fact constitutes a genuine issue of material fact that 

should have precluded summary judgment. 

{¶ 25} The existence of some mere factual dispute between the parties will not defeat 

an otherwise properly supported motion for summary judgment. Scott v. Harris, 550 U.S. 

372, 380, 127 S.Ct. 1769 (2007). "A dispute of fact is 'material' if it affects the outcome of 

the litigation, and is 'genuine' if demonstrated by substantial evidence going beyond the 
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allegations of the complaint." Myers v. Jamar Enterprises, 12th Dist. Clermont No. CA2001-

06-056, 2001 WL 1567352, *2 (Dec. 10, 2001), citing Burkes v. Stidham, 107 Ohio App.3d 

363, 371 (8th Dist.1995). A factual dispute that cannot affect the outcome is deemed 

irrelevant and will not preclude a grant of summary judgment. Smith v. A.B. Bonded 

Locksmith, Inc., 143 Ohio App. 3d 321, 326 (1st Dist.2001). 

{¶ 26} Here, there is nothing to show that the issue of whether HSBC was the Note 

Holder on March 17, 2012, the date on which the notice of default was sent to appellant, 

constitutes a genuine issue of material fact for purposes of Civ.R. 56(C). Even if HSBC was 

not the Note Holder on March 17, 2012 and only became the Note Holder on June 13, 2012, 

there is nothing to show that appellant has been prejudiced as a result. The notice of default 

provision in the parties' promissory note entitled appellant to receive notice of default and his 

right to cure it, and he received such notice. 

{¶ 27} In his fourth argument, appellant contends that the language of the March 17, 

2012 notice of default failed to comply with the promissory note's notice-of-default provision. 

{¶ 28} Paragraph 7(C) of the promissory note states that "[i]f I am in default, the Note 

Holder may send me a written notice telling me that if I do not pay the overdue amount by a 

certain date, the Note Holder may require me to pay immediately the full amount of Principal 

which has not been paid and all the interest that I owe on that amount." 

{¶ 29} The March 17, 2012 notice of default that HSBC sent to appellant states in 

pertinent part: 

This is formal notice that your agreement to pay as outlined in 

the terms of your Note and Mortgage/Deed of Trust has been 

breached by your failure to make such payments that were due 

on or after 01/01/12. 

To correct this breach of agreement, the total amount of 

$4,202.06, in certified funds, must be received in our office within 

thirty (30) days from the date of this letter. Only the full amount 

due will be accepted. 
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* * * 

It is our intent to declare your loan past due and payable 

immediately if the above referenced breach is not remedied as 

outlined in this letter. You have the right to reinstate after 

acceleration and to bring court action to assert the non-existence 

of a default or any other defense you may have to acceleration 

and sale of your property. 

{¶ 30} Appellant contends that while HSBC "may have intended for the statement 'past 

due and payable immediately['] to mean that [']the Note Holder may require me to pay 

immediately the full amount of Principal which has not been paid and all the interest that I 

owe on that amount[,']" "the March 17, 2012 [notice of default] does not make that 

statement." In support of his contention, appellant cites Third Fed. S. & L. Assn. v. Haydu, 

9th Dist. Summit No. 25985, 2012-Ohio-2887, ¶ 13, which states: 

The attached Exhibit B appears to be a copy of a letter 

addressed to Haydu, which indicates that Third Federal intended 

to foreclose upon the property if she did not pay in full the pastdue amount within thirty days. However, Exhibit B makes no 

reference to acceleration of the amounts due under the note. 

Therefore we conclude that * * * Third Federal failed to meet its 

initial Dresher burden of demonstrating compliance with the 

conditions precedent to an action on the note. 

Appellant argues that this court should likewise find that HSBC failed to demonstrate that it 

fulfilled the conditions precedent to an action on the parties' promissory note. We decline to 

do so. 

{¶ 31} The only argument appellant raised at trial regarding HSBC's failure to comply 

with a condition precedent in the parties' promissory note was the one set forth in his third 

argument under this assignment of error, which we have just rejected, to wit: the trial court 

erred in determining that HSBC complied with the condition precedent in the promissory note 

requiring it to provide him with a notice of default, as HSBC was not the Note Holder at the 

time the notice was sent, and therefore could not be deemed to have complied with this 

condition precedent. However, appellant did not raise in the trial court the argument that he 
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is raising now in the fourth argument of his assignment of error, i.e., that the language in the 

March 17, 2012 notice of default was insufficient to comply with the notice requirements of 

Paragraph 7(C) of the promissory note. 

{¶ 32} Generally, an error not raised in the trial court is deemed forfeited. State ex rel. 

Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81 (1997); CitiMortgage, Inc. v. 

Haverkamp, 12th Dist. Clermont No. CA2010-11-2099, 2011-Ohio-2099, ¶ 8. In limited 

instances, errors not raised in the trial court may be considered for the first time on appeal if 

they constitute "plain errors," i.e., "errors clearly apparent on their face and prejudicial to the 

complaining party." LeFort v. Century 21-Maitland Realty Co., 32 Ohio St.3d 121, 124 

(1987). However, in civil cases, plain error is recognized "only in the extremely rare case 

involving exceptional circumstances where error, to which no objection was made at the trial 

court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, 

thereby challenging the legitimacy of the underlying process itself." Goldfuss v. Davidson, 79 

Ohio St.3d 116 (1997). 

{¶ 33} Here, the error appellant raises in his fourth argument of his assignment of error 

does not rise to the level of civil plain error, as defined in Goldfuss. While the March 17, 

2012 notice of default sent to appellant by HSBC was deficient in that it failed to include the 

language in Paragraph 7(C) of the promissory note, notifying appellant that HSBC was 

requiring him to pay immediately "the full amount of Principal which has not been paid and all 

the interest that [he] owe[s] on that amount[,]" the error is not one that "seriously affects the 

basic fairness, integrity, or public reputation of the judicial process, thereby challenging the 

legitimacy of the underlying process itself." Id. 

{¶ 34} The March 17, 2012 notice of default informs appellant that it is HSBC's "intent 

to declare your loan past due and payable immediately if the above referenced breach is not 

remedied as outlined by this letter." And unlike the circumstances in Haydu, acceleration of 
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the note is referenced in the March 17, 2012 notice of default, which states in pertinent part, 

"You have the right to reinstate after acceleration and to bring court action to assert the nonexistence of a default or any other defense you may have to acceleration and sale of your 

property." Compare Haydu, 2012-Ohio-2887 at ¶ 13 (mortgagee's notice to mortgagor 

indicating it intended to foreclose on property if mortgagor did not pay in full past due amount 

made no reference to acceleration of amount due under the note). 

{¶ 35} In light of the foregoing, appellant's assignment of error is overruled. 

{¶ 36} Judgment affirmed. 

HENDRICKSON, P.J., and M. POWELL, J., concur.