2013-Ohio-1657

DEUTSCHE BANK NATIONAL TRUST CO.PLAINTIFF-APPELLEE

v.

MOHAMMED NAJAR, ET AL.DEFENDANTS-APPELLANTS

No. 98502

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 25, 2013

Civil Appeal from the Cuyahoga County Court ofCommon Pleas Case No. CV-723607

ATTORNEY FOR APPELLANTS Darryl E.Pittman Pittman, Alexander Attorneys Co., L.P.A.

ATTORNEYS FOR APPELLEE DEUTSCHEBANK NATIONAL TRUST COMPANY, ASTRUSTEE FOR ARGENT SECURITIES INC.,ASSET-BACKED PASS-THROUGH CERTIFICATESSERIES 2003-W3 Kimberly Y. Smith Rivera James W.Sandy James S. Wertheim McGlinchey Stafford P.L.L.C.

ATTORNEYS FOR APPELLEE MANLEY DEASKOCHALSKI L.L.C. David B. Bokor Matthew P. CurryEdward M. Kochalski Matthew J. Richardson Justin M.Ritch Manley Deas Kochalski L.L.C.

BEFORE: Rocco, J., S. Gallagher, P.J., andMcCormack, J.

KENNETH A. ROCCO, JUDGE

{¶ 1} In this foreclosure action,defendants-appellants Mohammed Najar, Ahmad Zoqash,and Rehab Zoqash appeal from the decision of the trialcourt granting summary judgment in favor ofplaintiff-appellee Deutsche Bank National TrustCompany, as Trustee for Argent Securities Inc.,Asset-Backed Pass-Through Certificates, Series2003-W3, under the pooling and servicing agreementdated September 1, 2003 ("Deutsche Bank"), on itscomplaint and appellants' counterclaims for allegedviolations of the Ohio Consumer Sales Practices Act("CSPA") and Ohio's falsification statute. Appellants alsoappeal the trial court's entry of summary judgment infavor of cross-claim defendant-appellee Manley DeasKochalski L.L.C. ("MDK") on appellants' cross-claimsfor alleged violations of CSPA and the Fair DebtCollection Practices Act ("FDCPA").

{¶ 2} Raising five assignments of error, appellantsargue that the trial court erred in granting DeutscheBank's and MDK's motions for summary judgmentbecause the affidavits and other evidentiary materialssubmitted by Deutsche Bank and MDK in support oftheir motions "do not carry their summary judgmentburden." Appellants further contend that the note at issuewas nonnegotiable and that the trial court erred inentering summary judgment on Deutsche Bank'scomplaint because Deutsche Bank failed to establish itsright to enforce the note and mortgage under theprovisions of the Ohio Uniform Commercial Code("UCC") applicable to nonnegotiable instruments.Appellants also argue that Deutsche Bank lackedstanding to enforce the note and mortgage because: (1)Deutsche Bank failed to establish that it was the "owner"or holder of the note when the foreclosure complaint wasfiled; (2) Deutsche Bank could not establish its ownershipof the note and mortgage due to its allegednoncompliance with a pooling and servicing agreementapplicable to appellants' loan; and (3) the assignment ofthe mortgage to Deutsche Bank was "robo-signed." Forthe following reasons, we affirm the trial court'sjudgment.

{¶3} On July 8, 2003, Najar and Ahmad Zoqash(the "borrowers") executed an adjustable rate note,payable to Argent Mortgage Company, L.L.C.("Argent"), in the amount of $171, 950. To securepayment of the note, Najar, Ahmad Zoqash, and Ahmad'swife, Rehab Zoqash, executed a mortgage on realproperty located at 6593 Sutton Drive, North Olmsted,Ohio, in favor of Argent. The mortgage was recorded onJuly 16, 2003.[1]

{¶4} Appellants' loan was thereafter securitizedwith other loans into a trust, pursuant to a pooling andservicing agreement ("PSA").[2] Deutsche Bank is thetrustee for the trust that includes appellants' loan.

{¶5} After the borrowers executed the note, Argenttransferred the note to Ameriquest Mortgage Company("Ameriquest"), using a special endorsement. Ameriquestthereafter endorsed the note in blank, and the note wastransferred to Deutsche Bank. There is no information inthe record as to precisely when these endorsements weremade; however, Deutsche Bank claims to have been inpossession of the note endorsed in blank since September2003.

{¶ 6} On January 20, 2009, Citi ResidentialLending Inc., as attorney-in-fact for Argent, assigned themortgage "together with the certain note(s) describedtherein" to Deutsche Bank. The assignment of mortgagewas recorded on February 18, 2009.

{¶ 7} The borrowers failed to make payments dueon the note, and on April 8, 2010, Deutsche Bank filed a

foreclosure action against appellants, seeking to recoverthe unpaid balance on the note and to foreclose on themortgaged property. In its complaint, Deutsche Bankalleged that it was the holder of the note and mortgage,that the note was in default, and that the default had notbeen cured. Copies of the unendorsed note and mortgage,which the borrowers had executed in favor of Argent,were attached to the complaint. Also attached to thecomplaint was a copy of the assignment of mortgagefrom Argent to Deutsche Bank. A copy of the noteendorsed in blank was not attached to the complaint.

{¶ 8} Appellants failed to timely respond to thecomplaint, and a default judgment was originally enteredagainst them. However, that judgment was subsequentlyvacated under Civ.R. 60(B).

{¶9} On February 15, 2011, appellants filed an"Amended Answer, Affirmative Defenses Counterclaimsand Third Party Complaint, " in which they denied thematerial allegations of the complaint, raised variousaffirmative defenses, and asserted counterclaims againstDeutsche Bank and cross-claims against MDK, the lawfirm that had filed the foreclosure action on behalf ofDeutsche Bank. With respect to their claims againstDeutsche Bank and MDK, appellants alleged that theforeclosure action had been filed using falsedocumentation. Specifically, appellants alleged thatDeutsche Bank did not "own" the note and mortgage, thatthe assignment of mortgage from Argent to DeutscheBank was fraudulent, having been "signed by notoriousrobo-signers, "[3] and that Deutsche Bank and MDK hadfiled a copy of the fraudulent assignment with the countyrecorder. Appellants further alleged that by attaching acopy of the assignment to the complaint, MDK "swore to[the] authenticity" of the assignment, thereby"perpetrating a fraud on the Court." Based on theseallegations, appellants asserted claims against MDK foralleged violations of the FDCPA, 15 U.S.C. 1692 et seq.,and against Deutsche Bank and MDK for allegedviolations of CSPA, R.C. 1345.01 et seq., and Ohio'sfalsification statute, R.C. 2921.13. On May 19, 2011, thetrial court granted MDK's motion to dismiss appellants'claim against MDK for alleged violations of Ohio'sfalsification statute.

{¶10} Deutsche Bank thereafter filed two motionsfor summary judgment — one as to its complaintand one as to appellants' counterclaims. In its motion forsummary judgment on its complaint, Deutsche Bankargued that appellants were in default and that based onits possession of the note endorsed in blank and theassignment of the mortgage from Argent to DeutscheBank, it was entitled to judgment on the note and toforeclose on the mortgage. In its motion for summaryjudgment on appellants' counterclaims, Deutsche Bankargued that because it was a national bank organized andexisting pursuant to the National Bank Act, it was not a"supplier" under CSPA, and that, therefore, there was no"consumer transaction" within the meaning of the statute.

Deutsche Bank also argued that appellants' falsificationclaim failed because there is no independent civil actionfor falsification under Ohio law absent criminalproceedings.

{¶11} MDK filed a motion for summary judgmenton appellants' cross-claims in which it argued thatappellants lacked standing to challenge the assignment ofmortgage and could not establish essential elements oftheir FDCPA and CSPA claims against MDK, includingthat MDK committed any prohibited acts with themeaning of the statutes or that appellants haddetrimentally relied upon, or were injured by, the allegedfraudulent assignment. Appellants opposed DeutscheBank's and MDK's motions for summary judgment.

{¶ 12} Determining that there were no genuineissues of material fact and that Deutsche Bank wasentitled to judgment as a matter of law, the trial courtgranted summary judgment in favor of Deutsche Bank onits complaint, entering judgment against Najar andAhmad Zoqash in the amount of $218, 879.27, andordering foreclosure of the mortgaged property. The trialcourt also granted Deutsche Bank's and MDK's motionsfor summary judgment on appellants' counterclaims andcross-claims. Appellants appeal from the trial court'sorder granting Deutsche Bank's and MDK's motions forsummary judgment.

{¶ 13} Appellants present five assignments of errorfor our review:

ASSIGNMENT OF ERROR NO. 1:

The trial court erred when it granted summary judgmentto plaintiff where there were unresolved conflicts in theevidence regarding whether plaintiff was a holder of thenote entitled to enforce it through foreclosure * * *.

ASSIGNMENT OF ERROR NO. 2:

The trial court erred by finding that plaintiff couldenforce defendants' mortgage because the note isnonnegotiable and the evidentiary standards underRevised Code § 1309.01 et [seq.] (UCC Article 9) asopposed to those set forth in Revised Code § 1303.01 etseq., were not met inasmuch as plaintiff failed to complywith the UCC Article 9 provisions that govern thetransfer of nonnegotiable instruments and theenforceability of mortgages securing those instruments.

ASSIGNMENT OF ERROR NO. 3:

The court erred when it found defendant MDK did notviolate the Fair Debt Collection Practices Act by filingfraudulent documents with their foreclosure filings andmaking false and misleading representations in theattempt to collect this debt; and supported its motion forsummary judgment with evidence cognizable underCiv.R. 56(E).

ASSIGNMENT OF ERROR NO. 4:

The court erred when it found that MDK was not liableunder the Ohio Consumer Sales Practices Act because itcommitted unfair, unconscionable and deceptive Acts inconnection with this consumer transaction.

ASSIGNMENT OF ERROR NO. 5:

The court erred when it found that plaintiff establishedthat it is a national bank exempt under the ConsumerSales Practices Act; and erred when it found that plaintiffas a matter of law was not a supplier under the ConsumerSales Practices Act.

{¶ 14} We review summary judgment rulings denovo, applying the same standard as the trial court.Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671N.E.2d 241 (1996). We accord no deference to the trialcourt's decision and independently review the record todetermine whether summary judgment is appropriate.

{¶15} Under Civ.R. 56, summary judgment isappropriate when (1) no genuine issue as to any materialfact exists, (2) the party moving for summary judgment isentitled to judgment as a matter of law, and (3) viewingthe evidence most strongly in favor of the nonmovingparty, reasonable minds can reach only one conclusionthat is adverse to the nonmoving party.

{¶ 16} On a motion for summary judgment, themoving party carries an initial burden of setting forthspecific facts that demonstrate its entitlement to summaryjudgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293,662 N.E.2d 264 (1996). If the moving party fails to meetthis burden, summary judgment is not appropriate; if themoving party meets this burden, summary judgment isappropriate only if the nonmoving party fails to establishthe existence of a genuine issue of material fact. Id. at293.

{¶ 17} To properly support a motion for summaryjudgment in a foreclosure action, a plaintiff must present"evidentiary quality materials" establishing: (1) that theplaintiff is the holder of the note and mortgage, or is aparty entitled to enforce the instrument; (2) if the plaintiffis not the original mortgagee, the chain of assignmentsand transfers; (3) that the mortgagor is in default; (4) thatall conditions precedent have been met; and (5) theamount of principal and interest due. See, e.g., UnitedStates Bank, N.A. v. Adams, 6th Dist. No. E-11-070,2012-Ohio-6253, ¶ 10, citing Wachovia Bank v. Jackson,5th Dist. No. 2010 CA 00291, 2011-Ohio-3203, ¶ 40-45.

Deutsche Bank's Motion for Summary Judgment onIts Complaint

Evidentiary Materials Submitted by Deutsche Bankin Support of Its Motion for Summary Judgment

{¶ 18} In their first assignment of error, appellants

argue that the trial court erred in granting DeutscheBank's motion for summary judgment on its complaintbecause Deutsche Bank failed to present sufficientevidence establishing its right to enforce the note andmortgage at issue. Specifically, appellants contend thatthe affidavit Deutsche Bank relied upon in support of itsmotion for summary judgment was "based on hearsay,unsupported legal conclusions, and records for which noproper foundation for admission was established, " didnot constitute competent summary judgment evidenceunder Civ.R. 56(E), and was "insufficient to carry[Deutsche Bank's] summary judgment burden."[4]

{¶19} Civ.R. 56(E) sets forth the requirements foraffidavits submitted on summary judgment. It provides,in relevant part:

Supporting and opposing affidavits shall be made onpersonal knowledge, shall set forth such facts as would beadmissible in evidence, and shall show affirmatively thatthe affiant is competent to testify to the matters stated inthe affidavit. Sworn or certified copies of all papers orparts of papers referred to in an affidavit shall be attachedto or served with the affidavit. The court may permitaffidavits to be supplemented or opposed by depositionsor by further affidavits.

{¶ 20} "Unless controverted by other evidence, aspecific averment that an affidavit pertaining to businessis made upon personal knowledge of the affiant satisfiesthe Civ.R. 56(E) requirement that affidavits both insupport or in opposition to motions for summaryjudgment show that the affiant is competent to testify tothe matters stated." Bank One, N.A. v. Swartz, 9th Dist.No. 03CA008308, 2004-Ohio-1986, ¶ 14, citing State exrel.Corrigan v. Seminatore, 66 Ohio St.2d 459, 423N.E.2d 105 (1981), paragraph two of the syllabus. Wherean affiant avers that he or she has personal knowledge ofa transaction "this fact cannot be disputed absentevidence to the contrary." Household Realty Corp.v.Henes, 8th Dist. No. 89516, 2007-Ohio-5846, ¶ 12, citingPapdelis v. First Am. Sav.Bank, 112 Ohio App.3d 576,579, 679 N.E.2d 356 (8th Dist. 1996). Similarly,verification of documents attached to an affidavitsupporting or opposing a motion for summary judgmentis generally satisfied by an appropriate averment in theaffidavit itself, for example, that "such copies are truecopies and reproductions." Seminatore at paragraph threeof the syllabus.

{¶21} In support of its motion for summaryjudgment on its complaint, Deutsche Bank submitted theaffidavit of Roger Kistler, vice president of AmericanHome Mortgage Servicing Incorporated ("AHMSI"),Deutsche Bank's mortgage loan servicer since February2009. Deutsche Bank also submitted copies of theunendorsed note, the note endorsed in blank, themortgage, the assignment of mortgage from Argent toDeutsche Bank, selected pages from the PSA, a payoffstatement for appellants' loan, and various notices of

acceleration and default for the loan, all of which wereattached to Kistler's affidavit.

{¶ 22} In his affidavit, Kistler attested that he hasbeen employed by AHMSI for six years, that his jobduties include personally reviewing AHMSI's businessrecords, including the records relating to the loan at issue,and that his affidavit is based on his personal knowledgeand his review of AHMSI's records relating to appellants'loan. In addition, he attested that Deutsche Bank obtainedpossession of the note endorsed in blank on September 1,2003, that "[s]ince the date of the transfer, Deutsche Bankhas been, and still is, the holder of the Note, " and that anassignment of mortgage from Argent to Deutsche Bankwas recorded on February 18, 2009. His affidavit furtherstates that the borrowers failed to make requiredpayments due on the note and have defaulted on the loan,that a notice of default was provided to appellants, thatthe default has not been cured, that the balance due on thenote was accelerated, and that $218, 879.27 is the balancedue on the loan. Kistler also stated that the copies of thedocuments attached to his affidavit are "true and correctcopies" of the originals.

{¶23} Ohio's version of the UCC governs who mayenforce a negotiable note. Article 3 of the UCC governsthe creation, transfer, and enforceability of negotiableinstruments, including promissory notes secured bymortgages on real estate. Mohammad v. Awadallah, 8thDist. No. 97590, 2012-Ohio-3455, ¶ 15, citing Fed. LandBank of Louisville v. Taggart, 31 Ohio St.3d 8, 10, 508N.E.2d 152 (1987).

{¶24} Under R.C. 1303.31(A), the "holder" of anegotiable instrument is a "[p]erson entitled to enforce"the instrument. A "holder" includes a person who is inpossession of an instrument payable to bearer. R.C.1301.01(T)(l)(a).[5] When an instrument is endorsed inblank, the instrument becomes payable to bearer and maybe negotiated by transfer of possession alone untilspecially endorsed. R.C. 1303.25(B). By virtue of itspossession of the note endorsed in blank and theassignment of mortgage from Argent, Deutsche Bankargued that it was the holder of the note and mortgage,entitled to enforce the note and mortgage, due to theborrowers' default.

{¶25} The evidentiary materials submitted byDeutsche Bank established: that Deutsche Bank was thecurrent holder of the note and mortgage, the chain ofassignments and transfers of the note and mortgage, theborrowers' default, that the conditions precedent toforeclosure set forth in the note and mortgage had beensatisfied, and the balance owed on the loan. Kistler'saffidavit and accompanying documents were, therefore,sufficient to meet Deutsche Bank's initial burden underCiv.R. 56(C) of establishing the absence of any genuineissues of material fact and Deutsche Bank's entitlement tojudgment as matter of law on the claims asserted in itscomplaint. See, e.g., United States Bank Natl. Assn. v.

Mitchell, 6th Dist. No. S-10-043, 2012-Ohio-3732.

{¶ 26} Once a plaintiff has met its burden ofestablishing that there is no genuine issue of material factfor trial, a defendant may not rest upon mere allegationsor denials in the pleadings but must present evidence ofspecific facts demonstrating a genuine issue of materialfact for trial. Accordingly, the burden then shifted toappellants to demonstrate a triable issue of fact.

{¶27} Appellants argue that Kistler's affidavit wasinsufficient to meet Deutsche Bank's burden on summaryjudgment because he is an employee of AHMSI,Deutsche Bank's mortgage servicer, rather than anemployee of Deutsche Bank. However, this court andmany others have upheld judgments in foreclosureactions based on testimony from mortgage servicers. See,e.g., United States Bank Natl. Assn. v. Turner, 8th Dist.No. 97935, 2012-Ohio-4592 ¶ 5, 13-14; Deutsche BankNatl. Trust Co. v. Gardner, 8th Dist. No. 92916,2010-Ohio-663, ¶ 10 (servicer of borrower's loancompetent to testify regarding the content of documentsin borrower's loan file with which he was personallyfamiliar); Deutsche Bank Natl. Trust Co. v. Ingle, 8thDist. No. 92487, 2009-Ohio-3886, ¶ 9, 18 (affidavit ofbank's loan servicing agent, along with other supportingdocuments, sufficient to show bank was the real party ininterest); New York v. Dobbs, 5th Dist. No.2009-CA-000002, 2009-Ohio-4742, ¶ 40 ("even though ** * not employed by" appellee, affidavit of loan servicingagent was sufficient to authenticate documents).

{¶28} Appellants also claim that Kistler's affidavitshould be disregarded because Kistler did not attach acopy of the power of attorney to his affidavit establishingthat AHMSI was Deutsche Bank's attorney-in-fact "as isrequired by Rule 56(E)." However, there is norequirement that a mortgage servicer produce a power ofattorney in order for an affidavit of its representative tobe properly considered on summary judgment where, ashere, appellants have not come forward with anyevidence challenging that fact. Further, even ifproduction of a power of attorney were required, anauthenticated copy of the power of attorney is in therecord. After obtaining leave of court, Deutsche Banksubmitted a copy of the limited power of attorneygranting AHMSI the power to act on behalf of DeutscheBank with its reply in support of its motion for summaryjudgment on appellants' counterclaims.

{¶ 29} Appellants also take issue with Kistler'sstatements in his affidavit regarding his review of"AHMSI's business records, " claiming that he "fails toacknowledge in his affidavit that he has not reviewed theactual record but imaged copies of those records, " andthat his affidavit failed to establish "an adequatefoundation" for the admissibility of appellants' loandocuments as business records. As such, appellants argue,his affidavit contains "inadmissible hearsay" and "does

not satisfy the business records exception."

{¶ 30} For a document to be admitted as a businessrecord, it must first be properly identified andauthenticated "by evidence sufficient to support a findingthat the matter in question is what its proponent claims."Evid.R. 901(A). "This low threshold standard does notrequire conclusive proof of authenticity, but onlysufficient foundational evidence for the trier of fact toconclude that the document is what its proponent claimsit to be." State v. Easter, 75 Ohio App.3d 22, 25, 598N.E.2d 845 (4th Dist.1991). In addition, to be admissibleas a business record:

(1) the record must be one regularly recorded in regularlyconducted activity; (2) it must have been entered by aperson with knowledge of the act, event or condition; (3)it must have been recorded at or near the time thetransaction; and (4) a foundation must be laid by thecustodian of record or some other qualified witness.Jackson, 201 l-Ohio-3203 at ¶ 35.

{¶31} If as appellants contend, Kistler had viewedonly imaged copies of the documents he claimed toauthenticate in his affidavit, there could be an issue offact as to whether the documents were authentic. See,e.g., HSBC Mtge. Servs., Inc. v. Edmon, 6th Dist. No.E-11-046, 2012-Ohio-4990, ¶ 19, 23-24 (trial court erredin granting summary judgment to bank in foreclosureaction where borrower demonstrated triable issue of factas to authenticity of promissory note by offeringtestimony showing that loan servicing officer did notreview original promissory note prior to swearing in heraffidavit that copy of note attached to complaint was atrue and accurate copy of original and that she wasunfamiliar with the processes of the office where theoriginal documents were maintained). Such contentionsmust, however, be supported by proper summaryjudgment evidence.

{¶ 32} In support of their claims that Kistler viewedonly imaged copies of the documents at issue, appellantsrefer generally to Kistler's "deposition testimony."Appellants contend that "[Kistler] testified in hisdeposition that the image system is a big black box andhe has no personal knowledge of who prepared therecords that were imaged, who verified the accuracy ofthose records or how they were handled when they wereimaged." Appellants, however, do not identify where inhis deposition this testimony allegedly appears. "[I]t isnot the duty of an appellate court to search the record forevidence to support an appellant's argument as to anyalleged error." Rodriguez v. Rodriguez, 8th Dist. No.91412, 2009-Ohio-3456, ¶ 7.

{¶33} With their opposition to Deutsche Bank'smotion for summary judgment on its complaint,appellants submitted three disks, containing copies ofwhat is described as Kistler's "video testimony." Thevideo files contained on the disk are difficult to access.

An additional program, not included on the disks, isrequired to view the "video testimony." There areinterruptions in the testimony from one video file to thenext, and it is virtually impossible to tell from the disksalone whether the interruptions in the testimony are dueto breaks that were taken during the deposition or theresult of difficulties in accessing the video files, raisingquestions regarding the accuracy and completeness of thetestimony as it is reviewed on the disks. No writtentranscript of Kistler's deposition was filed, and nocertified copy of the video deposition appears in therecord.

{¶34} Civ.R. 56(C) places strict limitations uponthe type of documentary evidence that a party may use insupporting or opposing a motion for summary judgment.Under Civ.R. 56(C), the materials that may be consideredon a motion for summary judgment include depositions,answers to interrogatories, written admissions, affidavits,transcripts of evidence in the pending case, and writtenstipulations of fact. Other types of documents may beintroduced as evidentiary material only throughincorporation by reference in a properly framed affidavit.Dzambasow v. Abakumov, 8th Dist. No. 80621,2005-Ohio-6719, ¶ 26, citing Lance Acceptance Corp. v.Claudio, 9th Dist. No. 02CA008201, 2003-Ohio-3503.'"Documents submitted in opposition to a motion forsummary judgment which are not sworn, certified, orauthenticated by affidavit have no evidentiary value andmay not be considered by the court in deciding whether agenuine issue of material fact remains for trial.'" linger,2012-Ohio-1950 at ¶ 44, quoting Lotarski v. Szczepanski,8th Dist. No. 68088, 1995 Ohio App. LEXIS 5591, *9-10(Dec. 20, 1995); Green v. B.F. Goodrich Co., 85 OhioApp.3d 223, 228, 619 N.E.2d 497 (9th Dist. 1993).

{¶ 35} Civ.R. 56(C) specifically authorizes the useof depositions in supporting or opposing a motion forsummary judgment. However, before a deposition can beconsidered as "legally acceptable evidence for summaryjudgment purposes": (1) the deposition must be filed withthe court or otherwise authenticated; (2) the deponentmust sign the deposition or waive signature; and (3) theremust be a certification by the officer before whom thedeposition is taken. linger, 2012-Ohio-1950 at ¶ 43.These requirements apply equally to depositiontranscripts and videotaped deposition testimony. Civ.R.30; see also Sup.R. 13(A)(8) (setting forth certificationrequirements for videotaped depositions).

{¶ 36} These requirements were not met in thiscase. Accordingly, Kistler's video deposition testimonywas not in the form required for consideration onsummary judgment.

{¶ 37} However, since Deutsche Bank did notobject to the improperly introduced video testimony, itcould be considered in ruling on Deutsche Bank's motionfor summary judgment within the court's discretion. See,e.g., Dzambasow, 2005-Ohio-6719 at ¶ 27 ('"[I]f the

opposing party fails to object to improperly introducedevidentiary materials, the trial court may, in its sounddiscretion, consider those materials in ruling on thesummary judgment motion.'"), quoting Christe v. GMSMgt. Co., Inc., 124 Ohio App.3d 84, 90, 705 N.E.2d 691(9th Dist.1997); Papdelis, 112 Ohio App.3d at 579, 679N.E.2d 356 ('"When ruling on a motion for summaryjudgment, a trial court may consider documents otherthan those specified in Civ.R. 56(C) in support of themotion when no objection is raised by the party againstwhom the motion is directed.'"), quoting Rodger v.McDonald's Restaurants of Ohio, Inc., 8 Ohio App.3d256, 456 N.E.2d 1262 (8th Dist.1982), paragraph one ofthe syllabus. Due to appellants' failure to identifyspecifically where in the video deposition the particulartestimony on which they rely appears and due to ourconcerns regarding the accuracy and completeness of thevideo testimony based on the lack of certification and thedifficulties in accessing and reviewing the video files, wedecline to do so in this case.[6]

{¶38} Accordingly, we find that Kistler's affidavitsufficiently authenticated the loan documents submittedin support of Deutsche Bank's motion for summaryjudgment.

{¶39} We, likewise, find that Kistler's affidavitprovided a sufficient foundation for the admissibility ofthe relevant loan documents as business records underEvid.R. 803(6). Kistler testified in his affidavit that hisduties included accessing and reviewing the recordsrelating to appellants' loan, that the records were made ator near the time by, or from information transmitted by, aperson with knowledge, that the records were made andkept in the ordinary course of AHMSI's regularlyconducted business activity, and that he had personallyreviewed them. This satisfies Evid.R. 803(6). '"A witnessproviding the foundation [for a recorded businessactivity] need not have firsthand knowledge of thetransaction.'" U.S. Bank N.A. v. Wilkens, 8th Dist. No.96617, 2012-Ohio-1038, ¶ 46, quoting Moore v.Vandemark Co., Inc., 12th Dist. No. CA2003-07-063,2004-Ohio-4313, ¶ 18. Appellants have not presented anyevidence of specific facts challenging Kistler's testimonyregarding this issue.

{¶ 40} Appellants also contend that Kistler'saffidavit fails to adequately establish the amount due onthe loan and that Deutsche Bank's motion for summaryjudgment should have been denied based on DeutscheBank's failure to provide a "payment history." In hisaffidavit, Kistler testified as to the amount due on thenote, based upon his review of the relevant businessrecords relating to appellants' loan. He attached a copy ofone of those documents, a payoff statement for the loan,to his affidavit. There is no requirement that a plaintiffprovide a complete "payment history" in order toestablish its entitlement to summary judgment in aforeclosure action. Kistler's affidavit and supportingdocuments were sufficient to meet Deutsche 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, ¶ 7 ('"An affidavit stating [a] loan is indefault, is sufficient for purposes of Civ.R. 56, in theabsence of evidence controverting those averments.'"),quoting Swartz, 2004-Ohio-1986 at ¶14.

The Affidavit of Rehab Zoqash

{¶ 41} The only evidence appellants offered tocontradict the balance due on the note was the conclusoryaffidavit of Rehab Zoqash. In her affidavit, Rehab Zoqashasserted that the payoff statement attached to Kistler'saffidavit is "not a record of my payment history" anddoes not "accurately reflect the amount I owe on thisaccount." She also disputed Kistler's assertion in hisaffidavit that the last payment on the loan was made inOctober 2009 and claimed to have "remitted at least 4payments to AHMSI after October of 2009" for whichshe has receipts. She further stated that she does "notrecall having received the notices of acceleration anddefault attached to the Kistler affidavit." Rehab Zoqashdid not, however, dispute that the borrowers were indefault under the note.

{¶ 42} An affidavit submitted on summaryjudgment must contain more than denials and conclusoryassertions to create a genuine issue of material fact:

"Generally, a party's unsupported and self-servingassertions, offered by way of affidavit, standing aloneand without corroborating materials under Civ.R. 56, willnot be sufficient to demonstrate material issues of fact.Otherwise, a party could avoid summary judgment underall circumstances solely by simply submitting such aself-serving affidavit containing nothing more than barecontradictions of the evidence offered by the movingparty." Davis v. Cleveland, 8th Dist. No. 83665,2004-Ohio-6621, ¶ 23, quoting Bell v. Beightler, 10thDist. No. 02AP-569, 2003-Ohio-88, ¶ 33.

{¶ 43} Rehab Zoqash was not one of the borrowersand, therefore, was not personally liable on the note.Accordingly, her contention that Kistler's affidavit doesnot "accurately reflect the amount I owe on the account"is of little relevance. Further, although Rehab Zoqashclaimed, in her affidavit, to have receipts documentingadditional payments, those receipts do not appear in therecord. Nor did she identify what additional payments shecontends were made, when they were made, in whatamounts, or what amount appellants contend is actuallydue on the loan. Her conclusory statement that thebalance Deutsche Bank claimed was due was incorrectwas unsupported by any facts or evidence. Zoqash'saffidavit, therefore, does not demonstrate the existence ofa genuine issue of fact as to the amount due on the note.Accordingly, appellants' first assignment of error isoverruled.

Negotiability of the Note and Deutsche Bank's

Standing to Enforce the Note and Mortgage

{¶ 44} In their second assignment of error,appellants contend that the trial court erred in grantingDeutsche Bank's motion for summary judgment on itscomplaint because (1) Deutsche Bank failed to establishthat the note was negotiable and did not comply withUCC provisions governing "the transfer of nonnegotiableinstruments and the enforceability of mortgages securingthose instruments" and (2) Deutsche Bank otherwiselacked standing to enforce the note and mortgage. Wedisagree.

Negotiability of the Note

{¶45} R.C. 1303.03 sets forth the requirements fora "negotiable instrument." R.C. 1303.03(A) provides inrelevant part:

"negotiable instrument" means an unconditional promiseor order to pay a fixed amount of money, with or withoutinterest or other charges described in the promise ororder, if it meets all of the following requirements:

(1)It is payable to bearer or to order at the time it isissued or first comes into possession of a holder.

(2)It is payable on demand or at a definite time.

(3) It does not state any other undertaking or instructionby the person promising or ordering payment to do anyact in addition to the payment of money, but the promiseor order may contain any of the following:

(a) An undertaking or power to give, maintain, or protectcollateral to secure payment;

(b)An authorization or power to the holder to confessjudgment or realize on or dispose of collateral;

(c) A waiver of the benefit of any law intended for theadvantage or protection of an obligor. * * *

{¶ 46} Appellants argue that section 5(C) of thenote, which requires a payor to provide written notice ifthe payor wishes to prepay the loan, and uniformcovenant 2 of the mortgage, which identifies the order ofpriority in which the lender shall apply payments,constitute "other undertakings" under R.C. 1303.03(A),which render the note nonnegotiable. As a number ofcourts have held, however, the right of a payor under anote to prepay part of the principal does not constitute anadditional "undertaking or instruction" that renders thenote nonnegotiable. See, e.g., HSBC Bank USA, NAv.Gouda, N.J.Super. No. F-20201-07, 2010 N.J.Super.Unpub. LEXIS 3029, *7-8 (Dec. 17, 2010); In re Walker,466 B.R. 271, 283-284 (Bankr.E.D.Pa. 2012); Kain v.Bank ofNew York Mellon (In re Kain), Bankr.D.S.C. Nos.08-08404-HB, 10-80047-HB, 2012 Bankr. LEXIS 1406,* 19-20 (Mar. 30, 2012).

{¶47} Nor does uniform covenant 2 of the mortgageconstitute an "other undertaking or instruction" within themeaning of R.C. 1303.03(A). The provision at issuestates:

[A]ll payments accepted and applied by Lender shall beapplied in the following order of priority: (a) interest dueunder the Note; (b) principal due under the Note; (c)amounts due under Section 3 [funds for escrow items].Such payments shall be applied to each Periodic Paymentin the order in which it became due. Any remainingamounts shall be applied first to late charges, second toany other amounts due under this Security Instrument,and then to reduce the principal balance of the Note.

{¶ 48} Appellants contend that this clause in themortgage "provides that to the extent payments aremisapplied[, ] the borrower is entitled to a proper crediton the outstanding principal balance owed" and that, assuch, it constitutes an "other undertaking." However, thatis not what the provision states. Further, the negotiabilityof the note is determined from the note, not the mortgage.Mohammad, 2012-Ohio-3455 at ¶ 16 ("The question ofwhether a document is a negotiable instrument isdetermined from the language used on the face of thedocument by its maker or drawer."). Accordingly, thisprovision does not adversely impact the negotiability ofthe note.

{¶ 49} Appellants also argue that the note isnonnegotiable because the promise to pay is conditional.Specifically, appellants contend that section 6 of the noteand uniform covenant 14 of the mortgage contain"express conditions to payment" that "create[] a bar tonegotiability" under R.C. 1303.05(A).

{¶50} R.C. 1303.05 provides, in relevant part:

(A)* * * for the purposes of division (A) of section1303.03 of the Revised Code, a promise or order isunconditional unless it states any of the following:

(1)An express condition to payment;

(2)That the promise or order is subject to or governed byanother writing;

(3)That rights or obligations with respect to the promiseor order are stated in another writing. A reference toanother writing does not of itself make the promise ororder conditional.

(B) A promise or order is not made conditional by areference to another writing for a statement of rights withrespect to collateral, prepayment, or acceleration orbecause payment is limited to resort to a particular fundor source.

{¶51} Section 6 of the note and uniform covenant14 of the mortgage provide that, to the extent interest orother loan charges collected on the loan exceed the

amounts permitted by law, the excess will be refunded tothe borrowers, and then specify the manner in which thatwill occur. Appellants argue that "by expressly justifyingthe borrower in withholding a portion of the statedprincipal amount of the note" and by "conditioning] themaker's obligation to repay the stated principal andinterest on the lawfulness of the negotiated paymentterms, " these provisions create an express condition topayment that "deprives the note of negotiability."However, contrary to appellants' argument, nothing inthese provisions gives the borrowers the right to withholdpayment or relieves the borrowers of their obligation torepay the amounts due under the note. Accordingly,appellants' argument is without merit.

{¶ 52} Appellants further contend that the note isnonnegotiable because "[t]he first full paragraph ofSection 11 of the note clearly makes the note subject tothe provisions of the mortgage" and therefore "violatesArticle 3 rules regarding unconditional promises."

{¶53} Section 11 states:

This Note is a uniform instrument with limited variationsin some jurisdictions. In addition, to the protections givento the Note Holder under this Note, A Mortgage, Deed ofTrust or Security Deed (the "Security Instrument"), datedthe same as this Note, protects the Note Holder frompossible losses which might result if I do not keep thepromises that I make in this Note. That the SecurityInstrument describes how and under what conditions Imay be required to make immediate payment in full of allamounts I owe under this Note. Some of those conditionsare described as follows: * * *

{¶54} Appellants' argument ignores R.C.1303.05(B). R.C. 1303.05(B) expressly states that "[a]promise or order is not made conditional by a reference toanother writing for a statement of rights with respect tocollateral, prepayment, or acceleration * * * ." See alsoOfficial Comment to UCC 3-106, comment 1 ("In somecases it may be convenient not to include a statementconcerning collateral, prepayment, or acceleration in thenote, but rather to refer to an accompanying loanagreement, security agreement, or mortgage for thatstatement. Subsection (b)(i) [R.C. 1303.05(B)] allows areference to the appropriate writing for a statement ofthese rights.") Accordingly, the reference to themortgage, in Section 11 of the note, with respect to rightsof acceleration does not render the note nonnegotiable.See Mesina v. Citibank, NA, Bankr.D.N.J. No. 10-2304RTL, 2012 Bankr. LEXIS 2958, *3-6 (June 27, 2012).

Deutsche Bank's Status as Holder of Note andMortgage at Time Foreclosure Complaint Filed

{¶ 55} Appellants also contend that Deutsche Banklacked standing to enforce the note and mortgage becauseit failed to establish that it was the "owner" or holder ofthe note when the foreclosure complaint was filed.

Appellants further argue that because "[t]here weremultiple versions of the promissory note in the record[, ]* * * there were unresolved conflicts as to which versionwas authentic" and that a genuine issue of material factexisted as to whether Deutsche Bank possessed the noteendorsed in blank at the time it filed its complaint, whichshould have precluded summary judgment.

{¶ 56} The current holder of the note and mortgageis the real party in interest in a foreclosure action. Turner,2012-Ohio-4592 at ¶ 16. An entity must prove that it wasthe holder of the note and mortgage on the date that theforeclosure complaint was filed; otherwise, summaryjudgment is inappropriate. Wells Fargo Bank, N.A. v.Jordan, 8th Dist. No. 91675, 2009-Ohio-1092, ¶ 23. Lackof standing cannot be "cured" after the complaint is filed.Deutsche Bank Natl. Trust Co. v. Rudolph, 8th Dist. No.98383, 2012-Ohio-6141, ¶ 17; Fed. Home Loan Mtge.Corp. v. Schwartzwald, 134 Ohio St.3d 13,2012-Ohio-5017, 979 N.E.2d 1241, ¶ 27-28.

{¶ 57} Although a plaintiff must establish that itwas the holder of the note and mortgage at the time theforeclosure action was filed, it need not present its proof"on the exact date that the complaint in foreclosure isfiled." Bank of N.Y. Mellon v. Watkins, 10th Dist. No.11AP-539, 2012-Ohio-4410, ¶ 18, citing CountrywideHome Loans v. Montgomery, 6th Dist. No. L-09-1169,2010-Ohio-693, ¶ 13. Rather, a plaintiff can offeradditional proof after the filing of the foreclosure action,including with its motion for summary judgment,establishing that it became the holder of the note andmortgage prior to or at the time of the filing of theforeclosure action. See, e.g., Wells Fargo Bank, N.A. v.Stovall, 8th Dist. No. 91802, 2010-Ohio-236, ¶ 16-17(assignment of mortgage to bank, dated prior to the filingof the complaint, that was attached to bank's motion forsummary judgment demonstrated that bank was the realparty in interest at the time foreclosure action was filed);U.S. Bank Natl. Assn. v. Kafantaris, 11th Dist. No.2011-T-0002, 2011-Ohio-5601, ¶ 29 (bank's failure toattach "the complete documents evidencing its status asthe holder of the note and mortgage" at the time thecomplaint was filed was a "curable defect").

{¶ 58} In this case, although the documentsattached to the foreclosure complaint do not establishDeutsche Bank as the current holder of the note at thetime the complaint was filed, i.e., the copy of the noteattached to complaint was a copy of the unendorsed notethe borrowers executed in favor of Argent, the documentsDeutsche Bank submitted with its motion for summaryjudgment — a copy of the note endorsed in blank,along with Kistler's affidavit authenticating the endorsednote and establishing that Deutsche Bank had beenpossession of the endorsed note since September 2003— demonstrate that it was the holder of the note atthe time the complaint was filed. Accordingly, DeutscheBank established that it was the holder of the note at thetime it filed its foreclosure complaint. It was not

additionally required to prove that it was the "owner" ofthe note and mortgage. Adams, 2012-Ohio-6253 at ¶13-14, citing U.S. Bank, N.A. v. Coffey, 6th Dist. No. E-l1-0-26, 2012-Ohio-721, ¶ 18; R.C. 1303.31(B) ("Aperson may be a 'person entitled to enforce' theinstrument even though the person is not the owner of theinstrument * * * ."); see also Mitchell, 2012-Ohio-3732 at¶ 16 ("An assertion of ownership rights does not indicateentitlement to enforce an instrument, nor does a lack ofownership necessarily prevent a person from beingentitled to enforce an instrument. * * * '[B]ecause apromissory note is transferred through the process ofnegotiation, ownership is not a requirement forenforcement of the note.'"), quoting Coffey at ¶ 20.[7]

{¶ 59} The mere fact that there were two differentcopies of the note in the record — one withendorsements and one without — does notmandate a finding that one of the notes was "unauthentic"or otherwise preclude summary judgment. Adams,2012-Ohio-6253 at ¶ 19-20. In his affidavit, Kistlerexplained the existence of the two versions of the notes asfollows:

The copy of the Note attached to the Complaint lackedthe endorsements because it was a copy from themortgage loan closing file. The closing file containscopies of documents as they were on the day theDefendants closed the loan, which is why noendorsements were contained on that copy of the Note. Atrue and accurate copy of that Note from the closing fileis attached hereto as Exhibit B. The copy attached heretoas Exhibit A-l that includes the endorsements is from thecollateral file, which contains the original Note assubsequently endorsed. This is not uncommon. In fact, inmy experience the note attached to the complaint isusually a copy from the closing file.

{¶ 60} Kistler's explanation is credible andsupported by other facts and documents in the record.Appellants offer no facts or evidence contradicting theexplanation provided. Accordingly, the existence of boththe endorsed note and the unendorsed note in the recorddid not create a triable issue of fact.

Noncompliance with the PSA

{¶61} Alternatively, appellants contend thatDeutsche Bank lacked standing to enforce the notebecause the transfer of appellants' loan to Deutsche Bankwas not in compliance with the PSA. Appellants assertthat because the PSA "provides the only avenue by whichassets become part of the [trust]" and appellants' loan wasnot properly transferred to the trust under the PSA,Deutsche Bank, could not "own" the note and mortgage.Appellants further argue that because the PSA states thatit is to governed by New York law, Deutsche Bank'sstanding to enforce the note must be determined underNew York law and the PSA, rather than Ohio law. We

disagree.

{¶ 62} Appellants are not parties to the PSA.Whether or not the parties to the PSA failed to complywith the terms of the PSA is irrelevant to DeutscheBank's standing as the holder of the note. By virtue of itspossession of the note endorsed in blank, Deutsche Bankwas the holder of the note and entitled to enforce the noteunder Ohio law. See R.C. 1301.01(T)(1) and1303.31(A)(1); see also Smoak, 461 B.R. at 519 (citingcases rejecting argument that "noncompliance with thePSA vitiates the standing of lenders to enforce notes andmortgages"). Accordingly, any alleged noncompliancewith the PSA does not create a genuine issue of materialwith respect to Deutsche Bank's standing to enforce thenote and mortgage.

Appellants' Challenges to the Assignment ofMortgage

{¶ 63} Finally, appellants argue that the trial courterred in entering summary judgment in favor of DeutscheBank on its complaint because the assignment ofmortgage from Argent to Deutsche Bank was"robo-signed." In support of their "robo-signing" claim,appellants offered a deposition transcript from anon-party witness in an unrelated case, involving anunrelated loan. The transcript does not bear the witness'ssignature or waiver of signature, or any court reportercertification. Accordingly, it is not properly consideredon summary judgment, linger, 2012-Ohio-1950 at ¶ 43.Appellants have produced no evidence that theassignment of mortgage in this case was robo-signed.

{¶ 64} Further, as this court previously explained inlinger, given that there is no dispute that appellantsexecuted the mortgage to secure the obligations owed onthe note, appellants lack standing to challenge thesubsequent assignment of the mortgage:

The mortgage assignments did not alter the Ungers'obligations under the note or mortgage. Mellon filed theforeclosure complaint based on the Unger' default underthe note and mortgage, not because of the mortgageassignments. The Unger' default exposed them toforeclosure regardless of the party who actually proceedswith foreclosure. The Ungers, therefore, failed to showthey suffered or will suffer any injury, the injury istraceable to the mortgage assignments, and it is likely afavorable decision will remedy the injury. The trial courtproperly granted Mellon's motion for summary judgmentbecause the Ungers lacked standing to challenge themortgage assignments. (Citations omitted.) Unger,2012-Ohio-1950 at ¶ 35; see also Bridge v. AamesCapital Corp., N.D. Ohio No. 1:09 CV 2947, 2010 U.S.Dist. LEXIS 103154, * 10-16 (Sept. 28, 2010); Smoak,461 B.R. at 519 (makers of note could not challengemortgage securing the note based on a defect in itsassignment, where holder provided evidence that themakers granted the mortgage to secure the obligations

owed on the note).

{¶ 65} Even if the assignment of mortgage fromArgent to Deutsche Bank was invalid, Deutsche Bankwould still be entitled to enforce the mortgage becauseunder Ohio law, the mortgage "follows the note" itsecures. U.S. Bank N.A. v. Marino, 181 Ohio App.3d 328,2009-Ohio-1178, 908 N.E.2d 1032, ¶ 52 (7th Dist.) ("Fornearly a century, Ohio courts have held that whenever apromissory note is secured by a mortgage, the noteconstitutes the evidence of the debt, and the mortgage is amere incident to the obligation. Therefore, the negotiationof a note operates as an equitable assignment of themortgage, even though the mortgage is not assigned ordelivered.") (Citations omitted.) The physical transfer ofthe note endorsed in blank, which the mortgage secures,constitutes an equitable assignment of the mortgage,regardless of whether the mortgage is actually (orvalidly) assigned or delivered. See, e.g., Dobbs,2009-Ohio-4742 at ¶ 30. Accordingly, appellants' secondassignment of error is overruled.

MDK's Motion for Summary Judgment onAppellants' Cross-Claims

{¶ 66} In their third and fourth assignments oferror, appellants contend that the trial court erred inentering summary judgment in favor of MDK onappellants' FDCPA and CSPA claims based on MDK'spurported "failure to submit any materials cognizableunder Rule 56(E) in support of its motion for summaryjudgment."

{¶ 67} Appellants' arguments with respect to itsthird and fourth assignments of error relate exclusively toMDK's reliance on the affidavit of David Merrill tosupport its motion for summary judgment. For thereasons that follow, appellants' arguments are meritless.

{¶ 68} Appellants first argue that MDK's motion forsummary judgment should have been denied becauseMDK did not submit any of its own evidentiary materialswith its motion for summary judgment and instead "reliedsolely on the affidavit of David Merrill, " which DeutscheBank submitted in support of its motion for summaryjudgment on appellants' counterclaims. MDK, however,was not required to submit its own "materials cognizableunder Rule 56(E)" in order to prevail on summaryjudgment.

{¶ 69} Civ.R. 56(C) states in relevant part:

Summary judgment shall be rendered forthwith if thepleadings, depositions, answers to interrogatories, writtenadmissions, affidavits, transcripts of evidence, andwritten stipulations of fact, if any, timely filed in theaction, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled tojudgment as a matter of law.

{¶ 70} It is not the burden of the moving party on

summary judgment to place evidence in the record, butmerely point to evidence that exists in the record thatestablishes the absence of a genuine issue of material factfor trial. Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264(observing that "the movant is not necessarily obligatedto place any of these [Rule 56(C)] evidentiary materialsin the record" but that "the evidence must be in the recordor the motion cannot succeed"). MDK properly met itsinitial burden on summary judgment by pointing toevidence in the record, i.e., the pleadings, Merrill'saffidavit, and the assignment of mortgage, indicating thatappellants could not succeed on their FDCPA and CSPAclaims against MDK.

{¶ 71} Appellants also contend that MDK failed tomeet its "summary judgment burden" because the Merrillaffidavit "contains hearsay, is not made on personalknowledge, and does not address the issues raised byDefendants against MDK in their cross-complaint."

{¶ 72} Appellants contend the Merrill affidavit is"flawed" because: (1) Merrill is not an employee ofDeutsche Bank or MDK, but rather, works for AHMSI;(2) he failed to attach a copy of the power of attorney orother documentation establishing AHMSI as DeutscheBank's attorney-in-fact; (3) his affidavit references"Deutsche Bank" rather than the trust; (4) Merrill lackspersonal knowledge of the facts to which he attests in theaffidavit; and (5) Merrill makes "no attestationwhatsoever regarding the false assignment MDK attachedto the complaint."

{¶ 73} We addressed appellants' first twoarguments in our discussion of the Kistler affidavit. Forthe same reasons we rejected appellants' arguments withrespect to the Kistler affidavit, we reject them here.

{¶ 74} With respect to appellants' third argument,the term "Deutsche Bank, " as used in the affidavit, isdefined as the trust. As to appellants' claim that Merrilllacked personal knowledge of the facts stated in hisaffidavit, the assertion in his affidavit that the affidavitwas based upon his personal knowledge was sufficient tosatisfy the requirements of Civ.R. 56(E) "absent evidenceto the contrary." Papdelis, 112 Ohio App.3d at 579, 679N.E.2d 356. Moreover, an affiant need not explain thebasis for his personal knowledge where, as here, hispersonal knowledge can be reasonably inferred based onthe affiant's position and other facts contained in theaffidavit. See, e.g., Stovall, 2010-Ohio-236 at ¶ 25;Swartz, 2004-Ohio-1986 at ¶ 14-15; Bush v. DictaphoneCorp., 10th Dist. No. 00AP-1117, 2003-Ohio-883, ¶74-75. Appellants did not present any evidencecontradicting Merrill's claims of personal knowledge.Finally, Merrill's affidavit was not the only evidenceMDK relied on in support of its motion for summaryjudgment. Accordingly, the fact that Merrill did notspecifically address appellants' allegations of fraud in hisaffidavit, did not preclude summary judgment in MDK's

favor.

{¶ 75} Upon our review of the record, we find thatMDK satisfied its initial burden under Civ.R. 56(C),showing that appellants could not establish a triable issueof fact on essential elements of their FDCPA and CSPAclaims against MDK. We likewise find that appellantsfailed to satisfy their reciprocal burden under Civ.R.56(E) to produce summary judgment evidenceestablishing a triable issue of fact. Accordingly, the trialcourt did not err in entering summary judgment in favorof MDK on appellants' FDCPA and CSPA claims.Appellants' third and fourth assignments of error areoverruled.

Deutsche Bank's Motion for Summary Judgment onAppellants' Counterclaim

{¶ 76} In their fifth assignment of error, appellantscontend that the trial court erred in entering summaryjudgment in favor of Deutsche Bank on their CSPAclaim. However, appellants' brief contains no argument insupport of its fifth assignment of error. Under App.R.16(A)(7), an appellant must set forth in his or her brief"[a]n argument containing the contentions of theappellant with respect to each assignment of errorpresented for review and the reasons in support of thecontentions, with citations to the authorities, statutes, andparts of the record on which appellant relies." Where aparty raising an assignment of error "fails to identify inthe record" the error on which a particular assignment oferror is based or "fails to argue the assignment separatelyin the brief, as required under App.R. 16(A), " the courtmay disregard an assignment of error presented forreview. App.R. 12(A)(2). Accordingly, appellants' fifthassignment of error is overruled. Fine v. Fine, 8th Dist.Nos. 96433 and 96434, 2012-Ohio-105, ¶ 17-20; State v.Durham, 8th Dist. No. 94747, 2011-Ohio-2256, 142-45.

{¶ 77} Judgment affirmed.

It is ordered that appellee recover from appellantscosts herein taxed.

The court finds there were reasonable grounds forthis appeal.

It is ordered that a special mandate be sent to saidcourt to carry this judgment into execution.

A certified copy of this entry shall constitute themandate pursuant to Rule 27 of the Rules of AppellateProcedure.

SEAN C GALLAGHER, PJ, and TIMMcCORMACK, J, CONCUR

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Notes:

[1] The note and mortgage at issue are hereinaftercollectively referred to as "appellants' loan."

[2]A pooling and servicing agreement is "an agreementcreating a trust that defines the terms under whichpromissory notes and their related mortgages are placedinto the trust, describes how the notes and mortgages andrelated loan documents are transferred by and betweenthe parties to the trust, and sets forth the variousresponsibilities of the parties to the trust. The promissorynotes, mortgages or deeds of trust, and related loandocuments are the trust res. Through the securitizationprocess, the beneficial or ownership interests in the trustare held by investors." In re Smoak, 461 B.R. 510, 515(Bankr.S.D.Ohio 2011). The PSA "represents contractualobligations" among the parties to the agreement, i.e., inthis case, Argent Securities Inc. as depositor, AmeriquestMortgage Company as master servicer, and DeutscheBank as trustee. Id. at 516.

[3] "Robo-signing" occurs "when bank employees signlarge numbers of affidavits and legal documents assertingthe bank's right to foreclose without confirming theiraccuracy." Bank ofN.Y.Mellon Trust Co., N.A. v. Unger,8th Dist. No. 97315, 2012-Ohio-1950, ¶ 25, fn. 4, citingOhio v. GMACMtge., L.L.C., 760 F.Supp.2d 741, 743(N.D.Ohio 2011).

[4]As part of the argument in their first assignment oferror, appellants also challenge MDK's use of theaffidavit of David Merrill to support its motion forsummary judgment on appellants' cross-claims. AlthoughDeutsche Bank submitted the Merrill affidavit in supportof its motion for summary judgment on appellants'counterclaims, in this appeal, appellants challenge theMerrill affidavit only to the extent MDK used the Merrillaffidavit "to carry its summary judgment burden."Because appellants' arguments with respect to the Merrillaffidavit involve the evidentiary basis for MDK's motionfor summary judgment, we believe it is more appropriateto address those arguments in connection with appellants'third and fourth assignments of error (which involveMDK's motion for summary judgment), rather thanappellants' first assignment of error (which involvesDeutsche Bank's motion for summary judgment on itscomplaint).

[5]R.C. 1301.01 was repealed by 2011 Am.H.B. No. 9and renumbered R.C. 1301.201. Because R.C. 1301.201only applies to transactions entered on or after June 29,2011, we apply former R.C. 1301.01 to this appeal.

[6]Even if we were to consider the video testimonyoffered by appellants, we do not believe, based on theportions of the video testimony we have been able toreview, that Kistler's deposition testimony creates agenuine issue of material fact as to whether DeutscheBank was entitled to summary judgment on its complaint.Although Kistler testified in his deposition that he hadviewed imaged copies of the documents referenced in his

affidavit, he also testified that the original collateral filehad been ordered and provided to Deutsche Bank'scounsel and that he had personally reviewed a "wet copy"of the endorsed note. Further, unlike the affiant inEdmon, supra, Kistler was not unfamiliar with theprocesses and procedures by which original documentswere scanned, and thereafter forwarded to, maintainedby, and retrieved from the record custodian, DeutscheBank. He testified regarding his knowledge of theseprocesses and procedures during his deposition. Cf.Deutsche Bank Natl. Trust Co. v. Hansen, 5th Dist. No.2010 CA 00001, 2011-Ohio-1223 (affidavit in support ofsummary judgment in a foreclosure case satisfied Civ.R.56(E) where affiant's later deposition testimonydemonstrated that, based on the affiant's knowledge ofthe business practices of the organization, affiant hadpersonal knowledge that the copy affiant received was atrue and accurate copy regardless of the fact that affiantdid not personally see the original promissory note, makethe copy, or watch the copy being made).

[7]Appellants contend that it is of "critical importance"that Deutsche Bank never amended its complaint orsupplemented its discovery responses to include a copyof the endorsed note. However, Deutsche Bank was notrequired to amend its complaint to substitute a copy ofthe endorsed note for the unendorsed note attached to thecomplaint. See Wells Fargo Bank v. McConnell, 5th Dist.No. 12CAE070040, 2012-Ohio-5159, ¶ 14-15. Further,the record reflects that a copy of the endorsed note wasproduced to appellants during discovery.

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