Citibank, N.A. v. Gleisinger , 2014 Ohio 3894 ( 2014 )

[Cite as Citibank, N.A. v. Gleisinger, 2014-Ohio-3894.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CITIBANK, N.A., : APPEAL NO. C-130766
TRIAL NO. A-1208687
Plaintiff-Appellee, :
vs. : O P I N I O N.
JEANETTE GLEISINGER, :
Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 10, 2014
Javitch Block & Rathbone and Megan Lindner, for Plaintiff-Appellee,
Katzman Logan Halper & Bennett and Kenneth B. Flacks, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER , Judge.
{¶1} Defendant-appellant Jeanette Gleisinger appeals the trial court’s entry
granting summary judgment to plaintiff-appellee Citibank, N.A., on its complaint to
recover the unpaid balance of $4,629.90 on a credit card account, and on
Gleisinger’s counterclaims for breach of contract, abuse of process, and defamation.
Because no genuine issues of material fact exist with respect to Citibank’s claim and
Gleisinger’s counterclaims, we affirm the trial court’s judgment.
Facts
{¶2} Citibank filed suit against Gleisinger in the Hamilton County
Municipal Court, seeking to recover the $4,629.90 balance owed on the credit card
account. Gleisinger filed an answer and counterclaims for breach of a settlement
contract, violation of the Ohio Consumer Sales Practices Act, abuse of process,
malicious prosecution, defamation, and violations of the Fair Credit Reporting Act.
Because Gleisinger’s counterclaims exceeded the jurisdiction of the municipal court,
the case was transferred to the common pleas court.
{¶3} Citibank subsequently filed a motion for summary judgment on its
complaint and all of Gleisinger’s counterclaims. The motion was supported by the
affidavit of Terri Ryning, a vice president of Citibank, Citibank’s credit card
agreement, and Gleisinger’s account statements from January 21, 2004, to July 19,
2011. Gleisinger filed a motion in opposition with her own affidavit. In her affidavit,
she asserted that she had had a telephone conversation with an account
representative for Citibank, who had agreed to accept 12 $100 payments in full
settlement of her credit card debt. She argued that her affidavit raised a factual issue
in support of her defense of accord and satisfaction, as well as her counterclaims.
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OHIO FIRST DISTRICT COURT OF APPEALS
Citibank filed a reply. The trial court granted Citibank’s motion for summary
judgment on its claim and all of Gleisinger’s counterclaims.
Standard of Review
{¶4} We review a trial court’s grant of summary judgment under Civ.R. 56 de
novo. Esber Beverage Co. v. LaBatt USA Operating Co., L.L.C., 138 Ohio St.3d 71,
2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9. Under Civ.R. 56(C), summary judgment is proper
when no genuine issues of material fact remain, the moving party is entitled to judgment
as a matter of law, and it appears from the evidence that reasonable minds can come to
but one conclusion, and with the evidence construed most strongly in favor of the
nonmoving party, that conclusion is adverse to that party. Id.No Accord and Satisfaction
{¶5} In her first assignment of error, Gleisinger argues that the trial court
erred in granting summary judgment on Citibank’s action on an account because
there was a genuine issue of material fact as to whether there was an accord and
satisfaction. In her third assignment of error, she argues the trial court erred in
granting summary judgment on her counterclaim for breach of contract. Both
assignments of error are premised upon Gleisinger’s argument that she had entered
into an agreement with Citibank to settle her credit card account for 12 monthly
payments of $100 with no interest. As a result, we address them together.
{¶6} “An accord is a contract between a debtor and a creditor in which the
creditor’s claim is settled in exchange for a sum of money other than that which is
allegedly due. Satisfaction is the performance of that contract.” See Allen v. R.G.
Indus. Supply, 66 Ohio St.3d 229, 231, 611 N.E.2d 794 (1993). A debtor raising the
defense of accord and satisfaction must show (1) that the parties went through a
process of offer and acceptance―an accord; (2) that the accord was carried out–a
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OHIO FIRST DISTRICT COURT OF APPEALS
satisfaction, and (3) that the agreement was supported by consideration. Id. at 231-
232.
{¶7} Where the amount of the claim is unliquidated or disputed, and an
accord is reached whereby the creditor accepts payment of less than what it believes
is owed, the consideration for the settlement lies in the mutual concessions of the
parties. Id. at 232; see Yin v. Amino Products Co., 141 Ohio St. 21, 46 N.E.2d 610(1943). Alternatively, if the claim is liquidated and undisputed, some additional
consideration will be required to establish an accord and satisfaction. See Complete
Credit Solutions v. Kellum, 1st Dist. Hamilton No. C-130216, 2013-Ohio-5324, ¶ 13.
{¶8} Once an accord and satisfaction has been established, the substituted
agreement is treated the same as any other contract. Cincinnati ex rel. Ritter v.
Cincinnati Reds L.L.C., 150 Ohio App.3d 728, 2002-Ohio-7078, 782 N.E.2d 1225, ¶
43-47 (1st Dist.). Thus, a debtor may be entitled to bring a separate action for breach
of the settlement agreement. See Drive-N-Shoppe, Inc. v. Pavlik, 33 Ohio App.3d
149, 151, 514 N.E.2d 917 (11th Dist.1986).
{¶9} Here, Gleisinger offered her own affidavit in support of her defense of
accord and satisfaction. She stated in relevant part as follows:
I spoke with two different people on March 2, 2010. I recall that
the first time I was told the computers were down and [I] needed
to call back. I am not 100% sure, but there was a reason like that
and I wrote down the name “Tara.” I called back on the same day
and spoke with Bethany or at least that was the name she gave me.
I said I could not pay $1,104.35 all at once and I was offered an
installment plan of $100 per month for 12 months for a total of
$1,200.00. I was told if I made all of my payments on time that
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OHIO FIRST DISTRICT COURT OF APPEALS
my balance would be zero. If I was late or missed a payment, I
would owe the entire amount. I agreed to the installment plan
that was more than the $1,104.35. The zero balance was very
important to me and I did not want to lose out on this because of a
late payment being delivered in the mail. So, I told the person my
PNC checking account number to immediately start the first
$100.00 payment and authorized the automatic payment of
$100.00 per month from my PNC checking account for the
remaining 11 payments.
{¶10} Glesinger also relies on a letter from Citibank offering to reach a
settlement with her by telephone. Gleisinger argues that her affidavit and the letter are
sufficient to raise a genuine issue of material fact as to whether she had entered into an
accord and satisfaction with Citibank. We disagree. Gleisinger’s debt was not disputed
on March 2, 2010, when she contacted Citibank to discuss the payment options for her
account. Because there was no actual dispute regarding the amount that Gleisinger
originally owed to Citibank on the account, as a matter of law additional consideration
was required to support the alleged settlement agreement Gleisinger claimed to have
reached with Citibank’s representative. See Citibank (South Dakota) N. Am. v. Perez,
191 Ohio App.3d 575, 2010-Ohio-5890, 947 N.E.2d 191 (6th Dist.) (holding that a
debtor’s partial payment in lieu of filing bankruptcy is sufficient consideration for an
accord and satisfaction); see also Reid v. Wallaby’s Inc., 2d Dist. Greene No. 2011-CA-
1437, 2012-Ohio-1437, ¶ 42-52; Rhoades v. Rhoades, 40 Ohio App.2d 559, 562, 321
N.E.2d 242, 245 (1st Dist.1974) (“neither the promise to do a thing, nor the actual doing
of it will constitute a sufficient consideration to support a contract if it is merely a thing
which the party is already bound to do.”).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Gleisinger, however, has pointed to no consideration for the alleged
settlement. As a result, the trial court properly concluded that Gleisinger’s affidavit had
failed to establish that an accord and satisfaction existed between her and Citibank, and
that Citibank, therefore, was entitled to judgment on her counterclaim for breach of
contract. The first and third assignments of error are overruled.
Citibank’s Action on an Account
{¶12} In her second assignments of error, Gleisinger argues that the trial
court erred in granting summary judgment to Citibank on its complaint to recover on
the credit card account. She argues that Citibank failed to meet its evidentiary
burden to show its right to recover on the credit card account.
{¶13} To establish a prima facie case for money owed on an account, a
plaintiff must show an account in the name of the party charged which contains:
(1) a beginning balance of zero, or a sum that can qualify as an account
stated, or some other provable sum; (2) listed items, or an item, dated
and identifiable by number or otherwise, representing charges, or
debits, and credits; and (3) summarization by means of a running or
developing balance, or an arrangement of beginning balance and items
that permits the calculation of the amount claimed to be due.
Great Seneca Fin. v. Felty, 170 Ohio App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶
6 (1st Dist.).
{¶14} Gleisinger argues, without citation to any legal authority, that
Citibank’s affidavit and supporting documentation fail to establish its right to recover
the outstanding balance on her credit card account. She maintains that Citibank has
attached a generic affidavit, which relies on the wrong cardholder agreement,
incomprehensible collection history notes, and a form letter. We disagree.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} The cardholder agreement attached to Citibank’s motion for summary
judgment is dated March 2010, and was in effect at the time that Gleisinger’s account
was closed. It provides for late fees and interest. Additionally, the billing statements
set forth the late fees and interest, and itemized every charge and credit on the
account from a zero balance to the charge-off date. See Citibank (South Dakota) N.A.
v. Ogunduyile, 2d Dist. Montgomery No. 21794, 2007-Ohio-5166, ¶ 12 (holding that
the affidavit of a bank representative which authenticated copies of monthly account
statements submitted in support of a motion for summary judgment were sufficient
to establish a prima facie case for money owed on an account).
{¶16} Gleisinger’s billing statements provide the necessary information to
prove the account. The statements were addressed to Gleisinger at her home address
and included the last four digits of her account number. The billing statement dated
January 2004, begins with a zero balance, and the subsequent statements through
July 19, 2011, itemize every charge and credit on the account before it was charged
off. At the time of Gleisinger’s final payment on the account, which was dated
February 2011, a balance of $3,954.52 remained. In July 2011, Citibank charged off
the account with a remaining balance of $4,629.90. Rhyning authenticated the
cardholder agreement and billing statements. She verified that, according to
Citibank’s records, Gleisinger had defaulted on the account by failing to make the
required payments, leaving a balance due in the amount of $4629.90.
{¶17} Accordingly, Citibank met its burden to prove that there was no
genuine issue of material fact as to Gleisinger’s liability for the $4,629.90 balance
due and owing to Citibank. As a result, the trial court properly granted summary
judgment to Citibank on its claim to recover on Gleisinger’s credit card account. See
Wolf Automotive v. Rally Auto Parts, Inc., 96 Ohio App.3d 130, 137, 641 N.E.2d 11957
OHIO FIRST DISTRICT COURT OF APPEALS
(10th Dist.1991); Citibank, N.A. (South Dakota) v. Hyslop, 10th Dist. Franklin No.
12AP-885, 2014-Ohio-844, ¶ 17. The second assignment of error is overruled.
Counterclaims for Abuse of Process and Defamation
{¶18} In her fourth assignment of error, Gleisinger argues that the trial court
erred in granting Citibank’s motion for summary judgment on her counterclaims for
abuse of process and defamation when there were genuine issues of material fact for
trial.
{¶19} The elements of abuse of process are: “(1) that a legal proceeding has been
set in motion in proper form and with probable cause; (2) that the proceeding has been
perverted to attempt to accomplish an ulterior purpose for which it was not designed,
and (3) that direct damage has resulted from the wrongful use of process.” Yaklevich v.
Kemp Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 626 N.E.2d 115 (1994),
paragraph one of the syllabus.
{¶20} Gleisinger alleged that Citibank had recklessly, wrongfully, and
intentionally attempted to collect a debt that was not owed to it and had instituted the
current lawsuit against her. Here, Gleisinger has offered no evidence in support of her
abuse-of-process claim. Citibank has produced numerous records reflecting Gleisinger’s
failure to pay the balance due and owing on her account. Gleisinger has not produced
any evidence outside of her own statements in her affidavit that Citibank lacked
probable cause to initiate the current action against her. Nor has she set forth any
evidence that Citibank had an ulterior purpose in initiating the proceedings or that she
has been damaged in any way. As a result, Citibank was entitled to judgment in its favor,
and the trial court properly entered summary judgment on Gleisinger’s counterclaim for
abuse of process.
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{¶21} Gleisinger also argues the trial court erred in granting summary
judgment on her defamation claim. Gleisinger’s defamation claim rested exclusively on
Citibank’s reporting of the status of her credit card account to the credit reporting
agencies. Citibank argues that Gleisinger’s defamation claim is preempted by the Fair
Credit Reporting Act, and further, if not preempted, Gleisinger has failed to present any
evidence to support her defamation claim.
{¶22} To establish a claim for defamation, Gleisinger had to prove the following
elements: “(a) a false and defamatory statement concerning another; (b) an unprivileged
publication to a third party; (c) fault amounting at least to negligence on the part of the
publisher; and (d) either actionability of the statement irrespective of special harm or
the existence of special harm caused by the publication.” Harris v. Bornhorst, 513 F.3d
503, 522 (6th Cir.2008), quoting Akron-Canton Waste Oil v. Safety-Kleen Oil Servs., 81
Ohio App.3d 591, 611 N.E.2d 955 (9th Dist.1992).
{¶23} Under 15 U.S.C. 1681h(e) of the Fair Credit Reporting Act, any action or
proceeding “in the nature of defamation, invasion of privacy, or negligence” is
preempted [by the Act] unless the “false information [was] furnished with malice or with
intent to injure the consumer.” Although 15 U.S.C. 1681h(e) does not define malice,
federal courts have held that information is “furnished with malice” if “the furnisher
‘either knows [the information] is false or * * * the [furnisher] acts in reckless disregard
of its truth or falsity.’ ” Saint Torrance v. Firstar, 529 F.Supp.2d 836, 844 (S.D.Ohio
2007), quoting Wolfe v. MBNA Am. Bank, 485 F.Supp.2d 874, 888 (W.D.Tenn. 2007).
{¶24} While Gleisinger alleged in her complaint that Citibank made false
statements to the credit reporting agencies “maliciously, without privilege and with a
willful intent to injure [her],” she has failed to set forth any evidence to support her
assertions that Citibank reported the information maliciously, without privilege, and
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OHIO FIRST DISTRICT COURT OF APPEALS
with a willful intent to injure her. Based upon Citibank’s records, Gleisinger owes the
outstanding balance on her account. As a result, the trial court properly entered
summary judgment on her counterclaim for defamation. We, therefore, overrule
Gleisinger’s fourth assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
CUNNINGHAM, P.J, and HENDON, J., concur.
Please note:
The court has recorded its own entry this date.
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