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WACHOVIA BANK OF DELAWARE v. JACKSON | Ohio Appeals Court SJ Reversed “Noriko Colston Affidavit, Uncertified Recorded Copies of Public Records”

WACHOVIA BANK OF DELAWARE v. JACKSON | Ohio Appeals Court SJ Reversed “Noriko Colston Affidavit, Uncertified Recorded Copies of Public Records”


COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT


WACHOVIA BANK OF DELAWARE, NA

-vs-

IRENE P. JACKSON

EXCERPT:

{¶14} In her first assignment of error, appellant asserts her affidavit in opposition to the motion for summary judgment challenged Wachovia’s allegation it was the holder of the note and mortgage. Appellant’s affidavit states she had been unable to verify that Wachovia Bank of Delaware was authorized to do business in the State of Ohio. She also alleged the affidavit Wachovia submitted in support of its motion for summary judgment was signed by an assistant secretary for a fourth entity claiming power of attorney for the plaintiff and was not sufficient to prove Wachovia is the proper party.

[…]

{¶24} Wachovia’s affidavit to which appellant refers was signed by Noriko Colston, who identified herself as an assistant secretary of Barclay’s Capital Real  Stark County, Case No. 2010-CA-00291 Estate, Inc., dba HomEq Servicing, as attorney in fact for Wachovia Bank of Delaware. The affidavit recites Wachovia Bank of Delaware was formerly known as First Union National Bank of Delaware, formerly known as First Union Home Equity Bank, N.A., and is the successor in interest to First Union Home Equity Corporation. Colston’s affidavit asserts she has personal knowledge of all the facts contained in the affidavit and is competent to testify. Colston’s affidavit states the copies of the note and mortgage attached to the pleadings are true and accurate copies of the original instruments, but the documents are not attached to the affidavit itself. Colston’s affidavit states Wachovia has exercised its option to accelerate and call due the entire principal balance. Colston’s affidavit states she has examined and has personal knowledge of the appellant’s loan account, which is in default. Finally the affidavit lists the amount due.

[…]

{¶28} Colston’s affidavit identifies the mortgage and the note as accurate copies of the originals, but does not identify any other documents Wachovia submitted to the trial court. Her affidavit states she has examined appellant’s loan account. It does not identify the account as a business record, kept in the regular course of business, nor does it state the records were compiled at or near the occurrence of each event by Stark County, Case No. 2010-CA-00291 persons with knowledge of said events. Colston’s affidavit asserts she has personal knowledge of all the facts contained in her affidavit, but she merely alleges she is an assistant secretary of Barclay’s, without elaborating on how her position with the company relates to or makes her familiar with the appellant’s account records.

[…]

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