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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Tuesday, March 30, 2010 6:58:16 PM
CASE NUMBER: 2007 CV 09571 Docket ID: 14935808
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
COURT OF COMMON PLEAS
MONTGOMERY COUNTY, OHIO
U.S. Bank, N.A., as Trustee for the Structured Case No. 2007 CV 9571
Asset Securities Corporation Mortgage Loan
Trust, 2006- NC1, Judge Connie S. Price
Plaintiff,
PLAINTIFF’S MEMORANDUM
-vs- CONTRA MOTION OF
DEFENDANTS, WESLEY A. QUINN
Wesley A. Quinn, et al., AND MARION L. QUINN, TO STRIKE
THE AFFIDAVIT OF PLAINTIFF’S
Defendants. CUSTODIAL AGENT, AS TO THE
DATE THAT THE CUSTODIAL
AGENT RECEIVED THE ORIGINAL
NOTE
The plaintiff herein, U.S. Bank, N.A., as Trustee for the SASCO Mortgage Loan
Trust, 2006 NC1 (“Plaintiff”), by and through undersigned counsel, does hereby submit
its Memorandum Contra Motion to Strike Affidavit of Mark Kelly, Vice President of
Deutsche Bank National Trust Company, Plaintiff’s Custodial Agent. Defendants,
LSR # 200725626
Wesley A. Quinn and Marion L. Quinn (“Defendants”) seek to exclude sworn affidavit
testimony of Plaintiff’s Custodial Agent, Deutsche Bank National Trust Company
(“Deutsche Bank Affidavit”), which avers that, as Custodian for Plaintiff, Deutsche
Bank obtained custody and control on or about June 1, 2006 of the Original Master
Custodial File containing, among other original loan documents, the Note given by
Defendant Wesley A. Quinn, bearing the blank indorsement of New Century Mortgage
Corporation, and the Mortgage executed and delivered by Defendants. Defendants
assert that the Deutsche Bank Affidavit should be stricken because itis untimely and
because it is hearsay. Defendants are wrong in all respects.
The Deutsche Bank Affidavit is not untimely. In their Objection and Motion to
Strike, Defendants, Wesley A. Quinn and Marion L. Quinn, suggest that Plaintiff
proffered the Deutsche Bank Affidavit in support of its Objection to Magistrate’s
Decision, and therefore, the Deutsche Bank Affidavit was filed out of time. This
suggestion is plainly inaccurate. A cursory reading of Plaintiff’s Objection to
Magistrate’s Decision and Plaintiff’s Reply Brief in Response to Defendants’ Objection
to Magistrate’ Decision reveals that Plaintiff expressly disclaims any reliance upon
Deutsche Bank Affidavit as support for its Objection and/or its Reply Brief. The
Deutsche Bank Affidavit is not new evidence or new testimony that Plaintiff has
proffered in the hopes that the Magistrate will reconsider his Decision.
2
Rather, Plaintiff proffered the Deutsche Bank Affidavit for this Court’s
consideration in furtherance of “the fundamental tenet of judicial review in Ohio that
courts should decide cases on their merits” whenever possible. State ex rel. Lapp Roofing
& Sheet Metal Co. (2008), 117 Ohio St.3d 179, 180; Bently v. Grey Fox Homes, Ltd (Ohio
App. 2 Dist., 2009), 184 Ohio App.3d 276, 278 (It is a general tenet of Ohio jurisprudence
that cases should be decided on their merits whenever possible); Wilson v. Lee (Ohio
App. 2 Dist., 2007), 172 Ohio Spp.3d 791, 796, quoting, v. Quality Chevrolet, Inc.(1992), 79
Ohio App.3d 578, 583, 607 N.E.2d 914. The Deutsche Bank Affidavit proves that
Plaintiff is holder in due course of the Quinn Note and Plaintiff was the real party in
interest with standing to bring this action for foreclosure on the date that it filed its
Complaint for Foreclosure, i.e.to further establish the merits of Plaintiff’s foreclosure
case. Defendants’ Objection and Motion to Strike is just one more, in a series of
motions, briefs, and other court papers Defendants have filed in this action seeking to
preclude this Court from determining this case on its merits. Should the Judgment to
Plaintiff be vacated ultimately, this case will be reactivated for adjudication upon the
merits. The Deutsche Bank Affidavit may be relied upon by the Court in making a
determination of this case on its merits.
Defendants’ Objection and Motion to Strike Affidavit is premised upon their
misstatement that the Magistrate had requested, and Plaintiff failed to provide in a
timely manner, evidence by which to establish how and when Plaintiff acquired its
3
right, title and interest in and to the original indorsed Note given by Defendant Wesley
A. Quinn. Defendants have falsely represented to this Court in their Objection and
Motion to Strike that “the Magistrate requested that U.S. Bank provide evidence about
when it received the original indorsed Note.”1 Notably, Defendants’ representation in
this regard was made without any citation to the record. This is likely because no
support exists within the record for such misrepresentation.
The record of this case is devoid of any instruction or request from the
Magistrate that Plaintiff supplement, clarify, or amend its briefing or Plaintiff’s offer of
proof as to its standing as real party in interest.2 Likewise, the record of this case is
devoid of any Order or Entry by the Court setting a briefing schedule or submission
deadline after which no party may provide testimony or evidence to allow the Court to
make a ruling on the merits of Defendants’ Motion to Vacate Judgment.3
In truth, it was Plaintiff, acting on its own impetus, who filed Plaintiff’s Brief as
to Real Party in Interest, together with Notices of Filing SEC Form 8K and Trust
Agreement for the Structured Asset Securities Corporation (SASCO) Mortgage Loan
Trust 2006-NC1; the Mortgage Loan Sale and Assignment Agreement for SASCO
Mortgage Loan Trust 2006 NC1; and the applicable Securitization Subservicing
1
Defendants’ Objection and Motion to Strike Notice of Filing Original Affidavit of Custodial Agent, Mark J. Kelly,
pg. 1.
2
Id.
3
4
Agreement on October 26, 2009.4 Plaintiff elected to file its Brief as to Real Party in
Interest because several months had passed without apparent action by the Court and
because Plaintiff wanted to equip the Court with legal authority and evidentiary
materials to allow it to render a decision upon the merits of Defendants’ Motion to
Vacate Judge. Thereafter, on December 24, 2009, Plaintiff filed its Motion to Lift Order
Staying Sale.5 Contemporaneous with the filing of Plaintiff’s Motion to Lift Order
Staying Sale, the Affidavit of Bailee of Original Master Custodial File, to which was
attached a true and correct copy of the entire contents of the Custodial File, was filed
with the Court.6
The Original Master Custodial File contains, among other items, the Custodial
Agent’s, Deutsche Bank’s, chain-of-custody records. The chain-of-custody records
establish that Deutsche Bank, as Custodian for Plaintiff, was in possession, custody and
control of the original Note with indorsement at least as of October 2006 –over a year
before Plaintiff filed its Complaint for Foreclosure. The Magistrate completely
overlooked, or disregarded, the chain-of-custody records contained within and that
comprising, in part, the Master Custodial File. Consequently, the Magistrate’s finding
that Plaintiff was a nonholder in possession was in error and is contradicted by
evidence that was before the Court at the time the Magistrate’s Decision was issued. It
was not a failure by Plaintiff to identify and produce sufficient evidence, but rather the
4
See, Case Docket.
5
Id.
6
Id.
5
Magistrate’s oversight or conscious disregard of the evidence presented that resulted in
this erroneous finding by the Magistrate.
Irrespective of the Deutsche Bank Affidavit, the evidence properly introduced
and admitted into the record of these proceedings, which the Magistrate was bound to
consider, proves that on the date Plaintiff filed its Complaint it was owner and holder of
the Note –not a nonholder in possession, as the Magistrate erroneously found. The
Deutsche Bank Affidavit serves merely to identify with greater precision the date when
Plaintiff, via its Custodial Agent, first obtained possession, custody and control of the
original Note and Mortgage. But for the “fundamental tenet of judicial review in Ohio”
mandating Ohio courts decide cases upon their merits whenever possible, this Court
would be free to ignore, for the time being, the Deutsche Bank Affidavit.
Although the Court may refuse to consider the Deutsche Bank Affidavit, there
are no legitimate grounds for striking it. The Deutsche Bank was not untimely and it
does not constitute inadmissible hearsay either. Defendants appear to argue that,
because an affidavit is a written statement, as opposed to live testimony, an affidavit is
necessarily an “out of court statement”. Defendants are incorrect in this regard. See,
Carnes v. Gordon Food Service (Ohio App. 2 Dist, May 11, 2007) 2007-Ohio-2350, ¶17 (we
note that affidavits and depositions are similar insofar as they both involve sworn
statements. One obvious difference between the two is that an affidavit is written
whereas a deposition involves oral testimony.)
6
By definition, the Deutsche Bank Affidavit is not an out-of-court statement
subject to exclusion under the Hearsay Rule. Evid.R. 801(A) defines a “statement” to
which the Hearsay Rule applies as including a “written assertion.” A statement,
including a written assertion, is hearsay only if made by someone other than the
declarant, and offered into evidence to prove the truth of the matter asserted. Evid.R.
801(C). Under the Hearsay Rule contained Evid.R. 801 “a witness is barred from
testifying as to statements made by another person if the statements are admitted to
prove the truth of the matter asserted and no specific exception applies” Reardon v. Hale
Ohio App. 12 Dist, Aug. 27, 2007) 2007-Ohio-4351, ¶23 (Emphasis added.), citing, State
v. Carter (1995), 72 Ohio St.3d 545, 549.
The Deutsche Bank Affidavit is a written “statement” by a “declarant” under
oath “offered into evidence” in these proceedings to prove the truth of the matter
asserted. Does not contain or rely upon a statement by another. To be admissible, the
Deutsche Bank Affidavit must be based upon the personal knowledge of the declarant,
Mark Kelly. "[P]ersonal knowledge" is "knowledge gained through firsthand
observation or experience, as distinguished from a belief based upon what someone else
has said." Bonacorsi v. Wheeling & Lake Erie Railway Co. (2002), 95 Ohio.St.3d 314, 320.
Ohio courts have found that the personal knowledge requirement is satisfied
where the affiant asserts personal knowledge and the nature of the facts involved and
the identity of the affiant "creates a reasonable inference that the affiant has personal
7
knowledge of the facts in the affidavit.“ Retail Recovery Service of NJ v. Conley (Ohio
App.3 Dist, March 29, 2010), 2010-Ohio-1256, ¶16; LaSalle Bank Natl. Assn. v. Street (Ohio
App. 5 Dist, April 17, 2009), 2009-Ohio-1855, ¶21; Fitch b. C.B. Richard Ellis, Inc. (Ohio
App. 10 Dist., Aug. 9, 2007), 2007-Ohio-4517, ¶22. The affiant is Vice President of
Deutsche Bank, Plaintiff’s designated Custodial Agent, and he testified in such capacity
and based upon his personal knowledge of Deutsche Bank’s actions as Custodian for
Plaintiff as to when Deutsche Bank initially received the Original Master Custodial File
at issue. His personal knowledge of such facts may be inferred under these
circumstances.
Finally, Defendants’ suggestion that the Deutsche Bank Affidavit is drawn into
question by virtue of the fact that Deutsche Bank delivered the Original Master
Custodial File under a contract of bailment to an authorized bailee for a limited time
and for the limited purpose of allowing this Court and opposing counsel to inspect the
original documents is utter without basis in fact and in law. Under the law of bailment,
mere possession of the bailed property is transferred temporarily to the bailee; no right,
title or interest in or to the bailed property is conveyed. The bailee is obligated to return
the bailed property upon termination of the bailment. The temporary transfer under
bailment of the possession of the Original Master Custodial File does not effect a break
in the chain of Custody or supplant the bailee as Custodian. While temporarily in the
bailee’s possession, pursuant to the contract of bailment, the Custodian retains legal
8
custody of the bailed property. Possession and legal custody are not synonymous in
the context of bailment.
Likewise, the Deutsche Bank Affidavit is not legitimately called into question by
the absence of testimony explaining if, when, or how the bailment contract was
terminated and the bailed property returned to Plaintiff’s Custodial Agent. The
Deutsche Bank Affidavit is not rendered suspect simply because it does not fully
assuage opposing counsel’s curiosity as to how the law of bailment operates in practice.
The Deutsche Bank Affidavit truthfully avers that Deutsche Bank, as Custodial Agent
for Plaintiff, initially obtained custody and control of the Original Note –among other
original loan documents‒ in June 2006. This testimony is not legitimately drawn into
question.
As for Defendants’ suggestion that the omission from the Affidavit of Bailee of
an averment as to the date that Deutsche Bank first obtained the Original Master
Custodial File somehow renders both the Affidavit of Bailee and the Deutsche Bank
Affidavit suspect. Once again, this suggestion is erroneous, baseless, and further
demonstrates an utter lack of understanding of bailment. The Affidavit of Bailee makes
but two factual averments: (1) that a contract of bailment exists and (2) and that the
bailee has received possession of the bailed property from the lawful bailor. The
balance of the Affidavit of Bailee is dedicated to describing the bailed property –in this
instance, an Original Master Custodial File.
9
The bailee, herself, not being a designated and authorized Custodian of the
Original Master Custodial File, cannot testify concerning any matter that does not
appear on the face of the documents comprising the Original Master Custodial File. As
the initial date that Deutsche Bank obtained custody of the Original Master Custodial
File is not reflected on the face of the documents contained therein, the bailee cannot
aver as to that information. The omission of any allegation or averment by the bailee as
to the date that Deutsche Bank first obtained custody of the Original Master Custodial
File was intentional and entirely appropriate.
CONCLUSION
This Court must deny Defendants’ Objection and Motion to Strike Affidavit of
Deutsche Bank. The Deutsche Bank Affidavit is not untimely for the purposes for
which it was offered. The Deutsche Bank Affidavit is not inadmissible hearsay and
does not contain inadmissible hearsay. The Deutsche Bank Affidavit contains the
truthful statement of Deutsche Bank’s Vice President, based upon his personal
knowledge of Deutsche Bank’s acquisition of custody and control of the Original Master
Custodial File at issue presently. This testimony goes to the merits of Plaintiff’s
foreclosure complaint. Defendants, throughout these proceedings, have gone to great
lengths to obscure and evade the true merits of this case. While this is understandable,
given the absence of any meritorious defense to Plaintiff’s Judgment and Decree of
Foreclosure, meaningful evaluation of the merits cannot be avoided indefinitely. It is a
10
general tenet of Ohio jurisprudence that cases should be decided on their merits
whenever possible. In this instance, the Judgment and Decree of Foreclosure was
warranted upon its merits and, therefore, must be sustained.
Respectfully submitted,
/S/ Deanna C. Stoutenborough
Deanna C. Stoutenborough (# 0069761)
Rick D. DeBlasis, Esq. (# 0012992)
Craig A. Thomas, Esq. (#0037667)
LERNER, SAMPSON & ROTHFUSS
Attorney for Plaintiff
120 E. Fourth St., 8th Floor
Cincinnati, OH 45202
Ph.: (513) 412-6093
11
CERTIFICATE OF SERVICE
I hereby certify that, on March 30, 2010, I electronically filed the foregoing with
the Clerk of the Court using the electronic filing system and have requested the Clerk
to send notification of such filing, via the ECF system, to the following:
Craig A. Thomas, Esq.
P.O. Box 5480
Cincinnati, OH 45201
Co-counsel for Plaintiff
Randall J. Smith, Esq.
Miami Valley Fair Housing Center, Inc.
21-23 E. Babbitt Street
Dayton, OH 45405
Counsel for Defendants, Wesley and Marion Quinn
Collette S. Carr, Esq.
301 West Third Street
5th Floor
Dayton, OH 45402
Counsel for Defendant, Montgomery County Treasurer
I hereby further certify that a true and correct copy of the foregoing Motion for
Extension of Time to Object to Magistrate’s Decision was sent via ordinary U.S. mail,
postage prepaid, to the following on the 31st day of March, 2010:
Chase Home Finance
3415 Vision Drive
Columbus, OH 43219
/S/ Deanna C. Stoutenborough
12
Preview
ELECTRONICALLY FILED COURT OF COMMON PLEAS Tuesday, March 30, 2010 6:58:16 PM CASE NUMBER: 2007 CV 09571 Docket ID: 14935808 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO COURT OF COMMON PLEAS MONTGOMERY COUNTY, OHIO U.S. Bank, N.A., as Trustee for the Structured Case No. 2007 CV 9571 Asset Securities Corporation Mortgage Loan Trust, 2006- NC1, Judge Connie S. Price Plaintiff, PLAINTIFF’S MEMORANDUM -vs- CONTRA MOTION OF DEFENDANTS, WESLEY A. QUINN Wesley A. Quinn, et al., AND MARION L. QUINN, TO STRIKE THE AFFIDAVIT OF PLAINTIFF’S Defendants. CUSTODIAL AGENT, AS TO THE DATE THAT THE CUSTODIAL AGENT RECEIVED THE ORIGINAL NOTE The plaintiff herein, U.S. Bank, N.A., as Trustee for the SASCO Mortgage Loan Trust, 2006 NC1 (“Plaintiff”), by and through undersigned counsel, does hereby submit its Memorandum Contra Motion to Strike Affidavit of Mark Kelly, Vice President of Deutsche Bank National Trust Company, Plaintiff’s Custodial Agent. Defendants, LSR # 200725626 Wesley A. Quinn and Marion L. Quinn (“Defendants”) seek to exclude sworn affidavit testimony of Plaintiff’s Custodial Agent, Deutsche Bank National Trust Company (“Deutsche Bank Affidavit”), which avers that, as Custodian for Plaintiff, Deutsche Bank obtained custody and control on or about June 1, 2006 of the Original Master Custodial File containing, among other original loan documents, the Note given by Defendant Wesley A. Quinn, bearing the blank indorsement of New Century Mortgage Corporation, and the Mortgage executed and delivered by Defendants. Defendants assert that the Deutsche Bank Affidavit should be stricken because itis untimely and because it is hearsay. Defendants are wrong in all respects. The Deutsche Bank Affidavit is not untimely. In their Objection and Motion to Strike, Defendants, Wesley A. Quinn and Marion L. Quinn, suggest that Plaintiff proffered the Deutsche Bank Affidavit in support of its Objection to Magistrate’s Decision, and therefore, the Deutsche Bank Affidavit was filed out of time. This suggestion is plainly inaccurate. A cursory reading of Plaintiff’s Objection to Magistrate’s Decision and Plaintiff’s Reply Brief in Response to Defendants’ Objection to Magistrate’ Decision reveals that Plaintiff expressly disclaims any reliance upon Deutsche Bank Affidavit as support for its Objection and/or its Reply Brief. The Deutsche Bank Affidavit is not new evidence or new testimony that Plaintiff has proffered in the hopes that the Magistrate will reconsider his Decision. 2 Rather, Plaintiff proffered the Deutsche Bank Affidavit for this Court’s consideration in furtherance of “the fundamental tenet of judicial review in Ohio that courts should decide cases on their merits” whenever possible. State ex rel. Lapp Roofing & Sheet Metal Co. (2008), 117 Ohio St.3d 179, 180; Bently v. Grey Fox Homes, Ltd (Ohio App. 2 Dist., 2009), 184 Ohio App.3d 276, 278 (It is a general tenet of Ohio jurisprudence that cases should be decided on their merits whenever possible); Wilson v. Lee (Ohio App. 2 Dist., 2007), 172 Ohio Spp.3d 791, 796, quoting, v. Quality Chevrolet, Inc.(1992), 79 Ohio App.3d 578, 583, 607 N.E.2d 914. The Deutsche Bank Affidavit proves that Plaintiff is holder in due course of the Quinn Note and Plaintiff was the real party in interest with standing to bring this action for foreclosure on the date that it filed its Complaint for Foreclosure, i.e.to further establish the merits of Plaintiff’s foreclosure case. Defendants’ Objection and Motion to Strike is just one more, in a series of motions, briefs, and other court papers Defendants have filed in this action seeking to preclude this Court from determining this case on its merits. Should the Judgment to Plaintiff be vacated ultimately, this case will be reactivated for adjudication upon the merits. The Deutsche Bank Affidavit may be relied upon by the Court in making a determination of this case on its merits. Defendants’ Objection and Motion to Strike Affidavit is premised upon their misstatement that the Magistrate had requested, and Plaintiff failed to provide in a timely manner, evidence by which to establish how and when Plaintiff acquired its 3 right, title and interest in and to the original indorsed Note given by Defendant Wesley A. Quinn. Defendants have falsely represented to this Court in their Objection and Motion to Strike that “the Magistrate requested that U.S. Bank provide evidence about when it received the original indorsed Note.”1 Notably, Defendants’ representation in this regard was made without any citation to the record. This is likely because no support exists within the record for such misrepresentation. The record of this case is devoid of any instruction or request from the Magistrate that Plaintiff supplement, clarify, or amend its briefing or Plaintiff’s offer of proof as to its standing as real party in interest.2 Likewise, the record of this case is devoid of any Order or Entry by the Court setting a briefing schedule or submission deadline after which no party may provide testimony or evidence to allow the Court to make a ruling on the merits of Defendants’ Motion to Vacate Judgment.3 In truth, it was Plaintiff, acting on its own impetus, who filed Plaintiff’s Brief as to Real Party in Interest, together with Notices of Filing SEC Form 8K and Trust Agreement for the Structured Asset Securities Corporation (SASCO) Mortgage Loan Trust 2006-NC1; the Mortgage Loan Sale and Assignment Agreement for SASCO Mortgage Loan Trust 2006 NC1; and the applicable Securitization Subservicing 1 Defendants’ Objection and Motion to Strike Notice of Filing Original Affidavit of Custodial Agent, Mark J. Kelly, pg. 1. 2 Id. 3 4 Agreement on October 26, 2009.4 Plaintiff elected to file its Brief as to Real Party in Interest because several months had passed without apparent action by the Court and because Plaintiff wanted to equip the Court with legal authority and evidentiary materials to allow it to render a decision upon the merits of Defendants’ Motion to Vacate Judge. Thereafter, on December 24, 2009, Plaintiff filed its Motion to Lift Order Staying Sale.5 Contemporaneous with the filing of Plaintiff’s Motion to Lift Order Staying Sale, the Affidavit of Bailee of Original Master Custodial File, to which was attached a true and correct copy of the entire contents of the Custodial File, was filed with the Court.6 The Original Master Custodial File contains, among other items, the Custodial Agent’s, Deutsche Bank’s, chain-of-custody records. The chain-of-custody records establish that Deutsche Bank, as Custodian for Plaintiff, was in possession, custody and control of the original Note with indorsement at least as of October 2006 –over a year before Plaintiff filed its Complaint for Foreclosure. The Magistrate completely overlooked, or disregarded, the chain-of-custody records contained within and that comprising, in part, the Master Custodial File. Consequently, the Magistrate’s finding that Plaintiff was a nonholder in possession was in error and is contradicted by evidence that was before the Court at the time the Magistrate’s Decision was issued. It was not a failure by Plaintiff to identify and produce sufficient evidence, but rather the 4 See, Case Docket. 5 Id. 6 Id. 5 Magistrate’s oversight or conscious disregard of the evidence presented that resulted in this erroneous finding by the Magistrate. Irrespective of the Deutsche Bank Affidavit, the evidence properly introduced and admitted into the record of these proceedings, which the Magistrate was bound to consider, proves that on the date Plaintiff filed its Complaint it was owner and holder of the Note –not a nonholder in possession, as the Magistrate erroneously found. The Deutsche Bank Affidavit serves merely to identify with greater precision the date when Plaintiff, via its Custodial Agent, first obtained possession, custody and control of the original Note and Mortgage. But for the “fundamental tenet of judicial review in Ohio” mandating Ohio courts decide cases upon their merits whenever possible, this Court would be free to ignore, for the time being, the Deutsche Bank Affidavit. Although the Court may refuse to consider the Deutsche Bank Affidavit, there are no legitimate grounds for striking it. The Deutsche Bank was not untimely and it does not constitute inadmissible hearsay either. Defendants appear to argue that, because an affidavit is a written statement, as opposed to live testimony, an affidavit is necessarily an “out of court statement”. Defendants are incorrect in this regard. See, Carnes v. Gordon Food Service (Ohio App. 2 Dist, May 11, 2007) 2007-Ohio-2350, ¶17 (we note that affidavits and depositions are similar insofar as they both involve sworn statements. One obvious difference between the two is that an affidavit is written whereas a deposition involves oral testimony.) 6 By definition, the Deutsche Bank Affidavit is not an out-of-court statement subject to exclusion under the Hearsay Rule. Evid.R. 801(A) defines a “statement” to which the Hearsay Rule applies as including a “written assertion.” A statement, including a written assertion, is hearsay only if made by someone other than the declarant, and offered into evidence to prove the truth of the matter asserted. Evid.R. 801(C). Under the Hearsay Rule contained Evid.R. 801 “a witness is barred from testifying as to statements made by another person if the statements are admitted to prove the truth of the matter asserted and no specific exception applies” Reardon v. Hale Ohio App. 12 Dist, Aug. 27, 2007) 2007-Ohio-4351, ¶23 (Emphasis added.), citing, State v. Carter (1995), 72 Ohio St.3d 545, 549. The Deutsche Bank Affidavit is a written “statement” by a “declarant” under oath “offered into evidence” in these proceedings to prove the truth of the matter asserted. Does not contain or rely upon a statement by another. To be admissible, the Deutsche Bank Affidavit must be based upon the personal knowledge of the declarant, Mark Kelly. "[P]ersonal knowledge" is "knowledge gained through firsthand observation or experience, as distinguished from a belief based upon what someone else has said." Bonacorsi v. Wheeling & Lake Erie Railway Co. (2002), 95 Ohio.St.3d 314, 320. Ohio courts have found that the personal knowledge requirement is satisfied where the affiant asserts personal knowledge and the nature of the facts involved and the identity of the affiant "creates a reasonable inference that the affiant has personal 7 knowledge of the facts in the affidavit.“ Retail Recovery Service of NJ v. Conley (Ohio App.3 Dist, March 29, 2010), 2010-Ohio-1256, ¶16; LaSalle Bank Natl. Assn. v. Street (Ohio App. 5 Dist, April 17, 2009), 2009-Ohio-1855, ¶21; Fitch b. C.B. Richard Ellis, Inc. (Ohio App. 10 Dist., Aug. 9, 2007), 2007-Ohio-4517, ¶22. The affiant is Vice President of Deutsche Bank, Plaintiff’s designated Custodial Agent, and he testified in such capacity and based upon his personal knowledge of Deutsche Bank’s actions as Custodian for Plaintiff as to when Deutsche Bank initially received the Original Master Custodial File at issue. His personal knowledge of such facts may be inferred under these circumstances. Finally, Defendants’ suggestion that the Deutsche Bank Affidavit is drawn into question by virtue of the fact that Deutsche Bank delivered the Original Master Custodial File under a contract of bailment to an authorized bailee for a limited time and for the limited purpose of allowing this Court and opposing counsel to inspect the original documents is utter without basis in fact and in law. Under the law of bailment, mere possession of the bailed property is transferred temporarily to the bailee; no right, title or interest in or to the bailed property is conveyed. The bailee is obligated to return the bailed property upon termination of the bailment. The temporary transfer under bailment of the possession of the Original Master Custodial File does not effect a break in the chain of Custody or supplant the bailee as Custodian. While temporarily in the bailee’s possession, pursuant to the contract of bailment, the Custodian retains legal 8 custody of the bailed property. Possession and legal custody are not synonymous in the context of bailment. Likewise, the Deutsche Bank Affidavit is not legitimately called into question by the absence of testimony explaining if, when, or how the bailment contract was terminated and the bailed property returned to Plaintiff’s Custodial Agent. The Deutsche Bank Affidavit is not rendered suspect simply because it does not fully assuage opposing counsel’s curiosity as to how the law of bailment operates in practice. The Deutsche Bank Affidavit truthfully avers that Deutsche Bank, as Custodial Agent for Plaintiff, initially obtained custody and control of the Original Note –among other original loan documents‒ in June 2006. This testimony is not legitimately drawn into question. As for Defendants’ suggestion that the omission from the Affidavit of Bailee of an averment as to the date that Deutsche Bank first obtained the Original Master Custodial File somehow renders both the Affidavit of Bailee and the Deutsche Bank Affidavit suspect. Once again, this suggestion is erroneous, baseless, and further demonstrates an utter lack of understanding of bailment. The Affidavit of Bailee makes but two factual averments: (1) that a contract of bailment exists and (2) and that the bailee has received possession of the bailed property from the lawful bailor. The balance of the Affidavit of Bailee is dedicated to describing the bailed property –in this instance, an Original Master Custodial File. 9 The bailee, herself, not being a designated and authorized Custodian of the Original Master Custodial File, cannot testify concerning any matter that does not appear on the face of the documents comprising the Original Master Custodial File. As the initial date that Deutsche Bank obtained custody of the Original Master Custodial File is not reflected on the face of the documents contained therein, the bailee cannot aver as to that information. The omission of any allegation or averment by the bailee as to the date that Deutsche Bank first obtained custody of the Original Master Custodial File was intentional and entirely appropriate. CONCLUSION This Court must deny Defendants’ Objection and Motion to Strike Affidavit of Deutsche Bank. The Deutsche Bank Affidavit is not untimely for the purposes for which it was offered. The Deutsche Bank Affidavit is not inadmissible hearsay and does not contain inadmissible hearsay. The Deutsche Bank Affidavit contains the truthful statement of Deutsche Bank’s Vice President, based upon his personal knowledge of Deutsche Bank’s acquisition of custody and control of the Original Master Custodial File at issue presently. This testimony goes to the merits of Plaintiff’s foreclosure complaint. Defendants, throughout these proceedings, have gone to great lengths to obscure and evade the true merits of this case. While this is understandable, given the absence of any meritorious defense to Plaintiff’s Judgment and Decree of Foreclosure, meaningful evaluation of the merits cannot be avoided indefinitely. It is a 10 general tenet of Ohio jurisprudence that cases should be decided on their merits whenever possible. In this instance, the Judgment and Decree of Foreclosure was warranted upon its merits and, therefore, must be sustained. Respectfully submitted, /S/ Deanna C. Stoutenborough Deanna C. Stoutenborough (# 0069761) Rick D. DeBlasis, Esq. (# 0012992) Craig A. Thomas, Esq. (#0037667) LERNER, SAMPSON & ROTHFUSS Attorney for Plaintiff 120 E. Fourth St., 8th Floor Cincinnati, OH 45202 Ph.: (513) 412-6093 11 CERTIFICATE OF SERVICE I hereby certify that, on March 30, 2010, I electronically filed the foregoing with the Clerk of the Court using the electronic filing system and have requested the Clerk to send notification of such filing, via the ECF system, to the following: Craig A. Thomas, Esq. P.O. Box 5480 Cincinnati, OH 45201 Co-counsel for Plaintiff Randall J. Smith, Esq. Miami Valley Fair Housing Center, Inc. 21-23 E. Babbitt Street Dayton, OH 45405 Counsel for Defendants, Wesley and Marion Quinn Collette S. Carr, Esq. 301 West Third Street 5th Floor Dayton, OH 45402 Counsel for Defendant, Montgomery County Treasurer I hereby further certify that a true and correct copy of the foregoing Motion for Extension of Time to Object to Magistrate’s Decision was sent via ordinary U.S. mail, postage prepaid, to the following on the 31st day of March, 2010: Chase Home Finance 3415 Vision Drive Columbus, OH 43219 /S/ Deanna C. Stoutenborough 12