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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Friday, March 19, 2010 1:05:42 PM
CASE NUMBER: 2007 CV 09571 Docket ID: 14901093
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE MONTGOMERY COUNTY
COURT OF COMMON PLEAS
U.S. Bank N.A. as Trustee )
) CASE NO. 2007 CV 9571
Plaintiff )
)
v. )
) JUDGE: CONNIE S. PRICE
) Magistrate David Fuchsman
Wesley A. Quinn et al. )
) DEFENDANTS’ OBJECTION
Defendants. ) AND MOTION TO STRIKE
) NOTICE OF FILING ORIGINAL
) AFFIDAVIT OF CUSTODIAL
) AGENT, MARK J. KELLY
)
Defendants Wesley and Marion Quinn object and move to strike Mark Kelly’s
Affidavit as untimely, inadmissible hearsay, and a violation of the best evidence rule.
First, U.S. Bank filed the affidavit after the Magistrate’s Decision. Second, the affidavit
is inadmissible hearsay that fails to meet the business record exception. And lastly, the
best evidence rule requires the production of the Custodial File containing the original
Note and documentation of the Trust’s acquisition of the Note and Mortgage. In
support, the Quinns state the following:
Months before its Decision, the Magistrate requested that U.S. Bank provide
evidence about when it received the original indorsed Note. It failed to do so. As a
result, the Magistrate’s Decision specifically finds that U.S. Bank’s failure causes it to
conclude that U.S. Bank was not in possession of the indorsed Note at the time the
Complaint was filed.1 Through the Mark Kelly affidavit, U.S. Bank is attempting to offer
evidence after the Magistrate’s Decision. It is too late. The Magistrate was never
1
See: Magistrate’s Decision at pg. 14.
1
provided the opportunity to review this evidence. And, this evidence does not add
anything. Despite the failure to provide the requested evidence or show when the
indorsed Note was acquired, the Magistrate found that U.S. Bank had standing to sue.
But not only is the Kelly affidavit untimely, it is inadmissible. Affidavits are out
of court statements being offered for the truth of the matter asserted and, as such, are
hearsay. 2 In general, hearsay is inadmissible. 3 For hearsay to be admitted into
evidence, the statement must fit into an exception to the rule.4 The business record
exception is the only exception that could possibly apply to the Kelly affidavit.5
The business record exception allows for hearsay to be admissible so long as: (1)
it is a record made at or near the time by, or from information transmitted by, a person
with knowledge; (2) this record is kept in the course of regularly conducted business
activity; (3) it is the regular practice of that business activity to make the record; and (4)
it is presented by the custodian or other qualified witness.6 But even if these elements
are met, if the source of the information or the method or circumstances of preparation
indicate a lack of trustworthiness, it remains inadmissible.7
The Kelly affidavit fails to allege any of the elements required to meet the
business record exception. It merely states that Kelly is familiar with the records
maintained by the Custodial File. This is not enough.
Furthermore, the circumstances of preparation indicate a lack of trustworthiness.
In other words, the legitimacy of the Kelly affidavit is questionable. On December 22,
2009, U.S. Bank’s attorney, Deanna Stoutenborough, created an affidavit attesting that
2
Evid.R.801.
3
Evid.R.802.
4
Evid.R.803.
5
Evid.R.803(6).
6
Id.
7
Id.
2
she had the original Master Custodial File. And it said that she was the designated
Bailee of the Original Custodial file by U.S. Bank’s designated Custodial Agent, Deutsche
Bank National Trust Company. This affidavit was notarized by an Ohio Notary. Plainly,
Stoutenborough was given the file and Deutsche Bank no longer had it in its possession.
Yet, Mark Kelly, a Deutsche Bank Vice President, is attesting that Deutsche Bank
has and has had custody of the file since June 2006. Kelly’s affidavit was created on
February 23, 2009 and notarized by a California Notary. In the affidavit, he attests that
Deutsche Bank has had possession and custody of the Quinn Note and Mortgage since
June 2006. Specifically, Kelly states:
Deutsche received physical possession, custody and control of the
Quinn Note and Mortgage, on or about June 1, 2006, pursuant
to that certain Pooling and Servicing Agreement dated June 1,
2006. Deutsche had maintained possession and custody of the
Quinn Note and the Quinn Mortgage since the inception of the
Securitization in June 2006. Deutsche maintains physical
possession and custody of the original Quinn Note as agent for
and on behalf of U.S. Bank National Association, as Trustee . . .
This affidavit does not explain how and when Kelly and Deutsche Bank received
the file back from Stoutenborough. Not necessarily a quick and easy transfer, since one
appears to be in Ohio and the other in California. And in fact, the affidavit is written to
suggest that the Custodial File has never left Deutsche Bank’s possession since receiving
it in June 2006.
Furthermore, Stoutenborough reviewed the same file as Kelly. Yet, Kelly adds a
date that Stoutenborough did not. Even though the purpose of the affidavit was to
provide the Magistrate with evidence about when the Trust acquired the Note and
Mortgage, the only information that Stoutenborough attested to was that the Note and
3
Mortgage were both sold to Lehman on March 22, 2006 and “thereafter sold” to the
Trust.
It is only after the Magistrate found Stoutenborough’s affidavit insufficient as to
when the endorsed Note was received that the Kelly affidavit appears. The Kelly
affidavit adds a specific date regarding when Deutsche Bank received “physical
possession, custody and control of the Quinn Note and Mortgage.” But even the Kelly
affidavit fails to address when the indorsed Note was acquired. It merely states, as does
the Stoutenborough affidavit, that the current file contains an indorsed Note.
Additionally, an affidavit is not the best evidence to prove what the Trust has in
its possession currently and when it received it. The best evidence is the Custodial File
that supposedly contains the original Note and Mortgage, along with the acquisition
information. The rules of evidence provide that in order to prove the content of a
writing, recording, or photograph, the original writing, recording, or photograph is
required.8 There are two exceptions. First, a duplicate is admissible to the same extent
as the original unless there is a genuine question raised as to the authenticity of the
original or it would be unfair to admit the duplicate.9 Second, other evidence as to the
contents is admissible only if: (1) the originals are lost or destroyed; (2) the original is
not obtainable; (3) a party not in possession of the original is offering other evidence
due to opponents failure to bring in the original after being afforded the opportunity to
do so; or (4) the issue presented in the other evidence is a collateral matter.10
An affidavit is other evidence as to the contents of the Custodial File. But in this
case, none of the acceptable circumstances apply. The Custodial File clearly is not lost
8
Evid.R.1002
9
Evid.R.1003
10
Evid.R.1004
4
or destroyed. Nor is the original unobtainable as shown through the flurry of affidavits
attesting to what is in the Custodial File. It is not the Quinns, but U.S. Bank, who has
possession of the Custodial File and is trying to admit in other evidence. Lastly, the
affidavit is addressing an issue at the heart of the matter, not a collateral matter.
Therefore, if it was timely and not after the Magistrate’s Decision, the only admissible
evidence would be the original Custodial File.
WHEREFORE, the Quinns object to and move to strike Mark Kelly’s affidavit.
Respectfully submitted,
_/S/ Randall J. Smith__________________
Randall J. Smith (000079)
Attorney for Defendant Wesley and Marion Quinn
Miami Valley Fair Housing Center, Inc.
21-23 East Babbitt Street
Dayton, OH 45405-4968
Phone (937) 223-6035
Fax (937) 223-6279
e-mail: randy.smith@mvfairhousing.com
5
CERTIFICATE OF SERVICE
I hereby certify that on March 19, 2010 I electronically filed the foregoing with
the Clerk of the Court using the CM>ECF system which will send notification of such
filing to the following:
Craig A. Thomas Deanna C. Stoutenborough
Attorney for Plaintiff Rick D. Deblasis
P.O. Box 5480 Co-Counsel for Plaintiff
Cincinnati, OH 45201 120 E. Fourth St., 8th Floor
Cincinnati, OH 45202
Collette Carr
Montgomery County Treasurer
451 W. Third Street
Dayton, OH 45422-5480
I hereby further certify that a true and correct copy of the foregoing Objection
was sent via ordinary U.S. mail, postage prepaid, to the following on the 19th day of
March, 2010:
Chase Home Finance
3415 Vision Drive
Columbus, OH 43219
/S/ Randall J. Smith_______________
Randall J. Smith (0000079)
6
Preview
ELECTRONICALLY FILED COURT OF COMMON PLEAS Friday, March 19, 2010 1:05:42 PM CASE NUMBER: 2007 CV 09571 Docket ID: 14901093 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE MONTGOMERY COUNTY COURT OF COMMON PLEAS U.S. Bank N.A. as Trustee ) ) CASE NO. 2007 CV 9571 Plaintiff ) ) v. ) ) JUDGE: CONNIE S. PRICE ) Magistrate David Fuchsman Wesley A. Quinn et al. ) ) DEFENDANTS’ OBJECTION Defendants. ) AND MOTION TO STRIKE ) NOTICE OF FILING ORIGINAL ) AFFIDAVIT OF CUSTODIAL ) AGENT, MARK J. KELLY ) Defendants Wesley and Marion Quinn object and move to strike Mark Kelly’s Affidavit as untimely, inadmissible hearsay, and a violation of the best evidence rule. First, U.S. Bank filed the affidavit after the Magistrate’s Decision. Second, the affidavit is inadmissible hearsay that fails to meet the business record exception. And lastly, the best evidence rule requires the production of the Custodial File containing the original Note and documentation of the Trust’s acquisition of the Note and Mortgage. In support, the Quinns state the following: Months before its Decision, the Magistrate requested that U.S. Bank provide evidence about when it received the original indorsed Note. It failed to do so. As a result, the Magistrate’s Decision specifically finds that U.S. Bank’s failure causes it to conclude that U.S. Bank was not in possession of the indorsed Note at the time the Complaint was filed.1 Through the Mark Kelly affidavit, U.S. Bank is attempting to offer evidence after the Magistrate’s Decision. It is too late. The Magistrate was never 1 See: Magistrate’s Decision at pg. 14. 1 provided the opportunity to review this evidence. And, this evidence does not add anything. Despite the failure to provide the requested evidence or show when the indorsed Note was acquired, the Magistrate found that U.S. Bank had standing to sue. But not only is the Kelly affidavit untimely, it is inadmissible. Affidavits are out of court statements being offered for the truth of the matter asserted and, as such, are hearsay. 2 In general, hearsay is inadmissible. 3 For hearsay to be admitted into evidence, the statement must fit into an exception to the rule.4 The business record exception is the only exception that could possibly apply to the Kelly affidavit.5 The business record exception allows for hearsay to be admissible so long as: (1) it is a record made at or near the time by, or from information transmitted by, a person with knowledge; (2) this record is kept in the course of regularly conducted business activity; (3) it is the regular practice of that business activity to make the record; and (4) it is presented by the custodian or other qualified witness.6 But even if these elements are met, if the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness, it remains inadmissible.7 The Kelly affidavit fails to allege any of the elements required to meet the business record exception. It merely states that Kelly is familiar with the records maintained by the Custodial File. This is not enough. Furthermore, the circumstances of preparation indicate a lack of trustworthiness. In other words, the legitimacy of the Kelly affidavit is questionable. On December 22, 2009, U.S. Bank’s attorney, Deanna Stoutenborough, created an affidavit attesting that 2 Evid.R.801. 3 Evid.R.802. 4 Evid.R.803. 5 Evid.R.803(6). 6 Id. 7 Id. 2 she had the original Master Custodial File. And it said that she was the designated Bailee of the Original Custodial file by U.S. Bank’s designated Custodial Agent, Deutsche Bank National Trust Company. This affidavit was notarized by an Ohio Notary. Plainly, Stoutenborough was given the file and Deutsche Bank no longer had it in its possession. Yet, Mark Kelly, a Deutsche Bank Vice President, is attesting that Deutsche Bank has and has had custody of the file since June 2006. Kelly’s affidavit was created on February 23, 2009 and notarized by a California Notary. In the affidavit, he attests that Deutsche Bank has had possession and custody of the Quinn Note and Mortgage since June 2006. Specifically, Kelly states: Deutsche received physical possession, custody and control of the Quinn Note and Mortgage, on or about June 1, 2006, pursuant to that certain Pooling and Servicing Agreement dated June 1, 2006. Deutsche had maintained possession and custody of the Quinn Note and the Quinn Mortgage since the inception of the Securitization in June 2006. Deutsche maintains physical possession and custody of the original Quinn Note as agent for and on behalf of U.S. Bank National Association, as Trustee . . . This affidavit does not explain how and when Kelly and Deutsche Bank received the file back from Stoutenborough. Not necessarily a quick and easy transfer, since one appears to be in Ohio and the other in California. And in fact, the affidavit is written to suggest that the Custodial File has never left Deutsche Bank’s possession since receiving it in June 2006. Furthermore, Stoutenborough reviewed the same file as Kelly. Yet, Kelly adds a date that Stoutenborough did not. Even though the purpose of the affidavit was to provide the Magistrate with evidence about when the Trust acquired the Note and Mortgage, the only information that Stoutenborough attested to was that the Note and 3 Mortgage were both sold to Lehman on March 22, 2006 and “thereafter sold” to the Trust. It is only after the Magistrate found Stoutenborough’s affidavit insufficient as to when the endorsed Note was received that the Kelly affidavit appears. The Kelly affidavit adds a specific date regarding when Deutsche Bank received “physical possession, custody and control of the Quinn Note and Mortgage.” But even the Kelly affidavit fails to address when the indorsed Note was acquired. It merely states, as does the Stoutenborough affidavit, that the current file contains an indorsed Note. Additionally, an affidavit is not the best evidence to prove what the Trust has in its possession currently and when it received it. The best evidence is the Custodial File that supposedly contains the original Note and Mortgage, along with the acquisition information. The rules of evidence provide that in order to prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required.8 There are two exceptions. First, a duplicate is admissible to the same extent as the original unless there is a genuine question raised as to the authenticity of the original or it would be unfair to admit the duplicate.9 Second, other evidence as to the contents is admissible only if: (1) the originals are lost or destroyed; (2) the original is not obtainable; (3) a party not in possession of the original is offering other evidence due to opponents failure to bring in the original after being afforded the opportunity to do so; or (4) the issue presented in the other evidence is a collateral matter.10 An affidavit is other evidence as to the contents of the Custodial File. But in this case, none of the acceptable circumstances apply. The Custodial File clearly is not lost 8 Evid.R.1002 9 Evid.R.1003 10 Evid.R.1004 4 or destroyed. Nor is the original unobtainable as shown through the flurry of affidavits attesting to what is in the Custodial File. It is not the Quinns, but U.S. Bank, who has possession of the Custodial File and is trying to admit in other evidence. Lastly, the affidavit is addressing an issue at the heart of the matter, not a collateral matter. Therefore, if it was timely and not after the Magistrate’s Decision, the only admissible evidence would be the original Custodial File. WHEREFORE, the Quinns object to and move to strike Mark Kelly’s affidavit. Respectfully submitted, _/S/ Randall J. Smith__________________ Randall J. Smith (000079) Attorney for Defendant Wesley and Marion Quinn Miami Valley Fair Housing Center, Inc. 21-23 East Babbitt Street Dayton, OH 45405-4968 Phone (937) 223-6035 Fax (937) 223-6279 e-mail: randy.smith@mvfairhousing.com 5 CERTIFICATE OF SERVICE I hereby certify that on March 19, 2010 I electronically filed the foregoing with the Clerk of the Court using the CM>ECF system which will send notification of such filing to the following: Craig A. Thomas Deanna C. Stoutenborough Attorney for Plaintiff Rick D. Deblasis P.O. Box 5480 Co-Counsel for Plaintiff Cincinnati, OH 45201 120 E. Fourth St., 8th Floor Cincinnati, OH 45202 Collette Carr Montgomery County Treasurer 451 W. Third Street Dayton, OH 45422-5480 I hereby further certify that a true and correct copy of the foregoing Objection was sent via ordinary U.S. mail, postage prepaid, to the following on the 19th day of March, 2010: Chase Home Finance 3415 Vision Drive Columbus, OH 43219 /S/ Randall J. Smith_______________ Randall J. Smith (0000079) 6