PCA Acquisitions L.L.C. v. Parson , 2020 Ohio 3218 ( 2020 )

[Cite as PCA Acquisitions L.L.C. v. Parson, 2020-Ohio-3218.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
PCA ACQUISITIONS L.L.C., :
:
Plaintiff-Appellee, : Case No. 19CA15
:
vs. :
:
ROBERT J. PARSON, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
APPEARANCES:
Robert J. Parson, Hillsboro, Ohio, Appellant Pro Se.
Yale R. Levy, Kathleen M. Smith, Levy & Associates, LLC, Columbus, Ohio, for
Appellee.
Smith, P.J.
{¶1} Robert J. Parson (“Appellant”) appeals the June 25, 2019 entry of the
Hillsboro Municipal Court, which granted PCA Acquisitions, L.L.C.’s
(“Appellee’s”) motion for summary judgment, to which Appellant did not respond.
Having reviewed the record, we find no merit to Appellant’s arguments.
Accordingly, we affirm the judgment of the trial court.
FACTS
{¶2} On November 26, 2018, Appellee filed a complaint in the Hillsboro
Municipal Court. The complaint alleged that Appellee was the assignee of
Highland App. No. 19CA15 2
Appellant’s National Rifle Association (NRA) credit card account. The complaint
further alleged that Appellant owed the sum of $2,070.52 for money due to
Appellee via Appellant’s use of the credit card account, and that Appellant had
breached the account agreement for failing to make payments. The complaint
attached a copy of the account statement and demanded judgment for $2,072.52,
plus interest. Appellant was properly served with the complaint.
{¶3} On December 28, 2018, Appellant filed a responsive pleading
captioned “Private” and indicating it was a response to Appellee’s counsel. For
various reasons contained within the pleading, Appellant answered that the debt
was uncollectable. The trial court scheduled the matter for a pretrial.
{¶4} On February 6, 2019, Appellee filed a notice of service of written
discovery requests, including requests for admissions. On February 22, 2019,
Appellant filed a motion to dismiss the complaint.1 On March 6, 2019, Appellant
filed a response to the discovery requests. Also on March 6, 2019, Appellant filed
a pleading objecting to or denying all requests for admissions.
{¶5} On March 8, 2019, Appellee filed Plaintiff’s First Motion for
Extension of Time in order to respond to Appellant’s motion to dismiss. On March
11, 2019, the trial court granted the motion for extension and ordered Appellee
1
Actually, the pleading was titled “Notice of Motion and Motion Memorandum of Points and Authorities and
Declaration of Robert J. Parson in Support of Motion to Dismiss Complaint and For Damages.”
Highland App. No. 19CA15 3
reply to the motion to dismiss within thirty days. On March 13, 2019, Appellant
filed requests for written discovery and requests for admissions.
{¶6} On April 8, 2019, Appellee filed Plaintiff’s Motion to Correct the
Record, pursuant to Civ.R. 15. In the motion, Appellee asserted that the creditor’s
name in the original complaint should have been “First National Bank of Omaha,”
not “National Rifle Association.” On April 9, 2019, the trial court granted the
motion to correct the record and ordered that the complaint and court records be
amended so that the original creditor’s name was changed from “National Rifle
Association” to “First National Bank of Omaha.”
{¶7} On April 10, 2019, Appellee filed Plaintiff’s Memorandum in
Opposition to Defendant’s Motion to Dismiss. Also on April 10, 2019, the trial
court denied the motion to dismiss. Appellee next moved the court for an
extension of time to respond to Appellee’s first set of discovery requests. On April
11, 2019, the trial court ordered that Appellee reply to the discovery requests
within thirty days.
{¶8} On May 13, 2019, Appellant filed Defendant’s Request to Strike in
Opposition to Plaintiff’s Motion for Summary Judgment. On May 16, 2019,
Appellee filed both a Motion for Leave to File a Motion for Summary Judgment
and a Motion for Summary Judgment. The trial court scheduled a hearing on June
26, 2019. On May 23, 2019, Appellee also filed Plaintiff’s Memorandum in
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Opposition to Defendant’s Motion to Strike. On May 29, 2019, the trial court
denied the motion to strike.
{¶9} On June 21, 2019, the trial court denied Appellant’s request to strike.
On June 25, 2019, the trial court granted both Appellee’s motion for leave and the
motion for summary judgment. This timely appeal followed.
ASSIGNMENT OF ERROR
{¶10} Appellant's brief posits no assignments of error but does raise
several issues. In light of our policy of extending considerable leniency to pro se
litigants, see State v. Esparza, 4th Dist. Washington No. 12CA42, 2013-Ohio-
2138, at ¶ 5; State v. Evans, 4th Dist. Pickaway No. 11CA24, 2013-Ohio-4143, at
¶ 7, fn. 2, we will consider those issues despite Appellant's failure to comply with
App.R. 16(A)(3). State v. Cargile,4th Dist. Scioto No.14CA3661, 2015-Ohio-
3629, at ¶ 5; See also, In re Estate of Poling, 4th Dist. Hocking No. 04CA18, 2005-
Ohio-5147, at ¶ 18.
STANDARD OF REVIEW
{¶11} Appellate review of summary judgment decisions is de novo,
governed by the standards of Civ.R. 56. Turner v. Dimex, 4th Dist. Washington
No. 19CA3, 2019-Ohio-4251, at ¶ 6; Vacha v. N. Ridgeville, 136 Ohio St.3d 199,
2013-Ohio-3020, 992 N.E.2d 1126, ¶ 19; Citibank v. Hine, 4th Dist. Ross, 2019-
Ohio-464, 130 N.E.3d 924, at ¶ 27. Summary judgment is appropriate if the party
Highland App. No. 19CA15 5
moving for summary judgment establishes that (1) there is no genuine issue of
material fact, (2) reasonable minds can come to but one conclusion, which is
adverse to the party against whom the motion is made and, (3) the moving party is
entitled to judgment as a matter of law. Capital One Bank (USA) N.A. v. Rose, 4th
Dist. Ross No. 18CA3628, 2018-Ohio-2209, 2018 WL 2749510, at ¶ 23; Civ.R.
56; New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-
2266, 950 N.E.2d 157, ¶ 24; Chase Home Finance, LLC v. Dunlap, 4th Dist. Ross
No. 13CA3409, 2014-Ohio-3484, at ¶ 26.
{¶12} The moving party has the initial burden of informing the trial
court of the basis for the motion by pointing to summary judgment evidence
and identifying parts of the record that demonstrate the absence of a genuine
issue of material fact on the pertinent claims. Turner, supra, at ¶ 7; Dresher
v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996); Chase Home
Finance, supra, at ¶ 27; Citibank, supra, at ¶ 28. Once the moving party
meets this initial burden, the non-moving party has the reciprocal burden
under Civ.R. 56(E) to set forth specific facts showing that there is a genuine
issue remaining for trial. Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264.
See also Rose, supra, at ¶ 24.
{¶13} Pursuant to the above rule, a trial court may not enter summary
Highland App. No. 19CA15 6
judgment if it appears a material fact is genuinely disputed. Turner, supra,
at ¶ 8; Ball v. MPW Indus. Servs., Inc., 2016-Ohio-5744, 60 N.E. 3d 1279(5th Dist.) at ¶ 29, citing, Vahila v. Hall, 77 Ohio St.3d 421, 429, 674
N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d
264 (1996).
LEGAL ANALYSIS
{¶14} In this case, Appellant did not file a response in opposition to
Appellee’s motion for summary judgment. Civ.R. 56(E) provides in part that:
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere
allegations or denials of the party's pleadings, but the party's
response, by affidavit or as otherwise provided in this rule, must set
forth specific facts showing that there is a genuine issue for trial. If
the party does not so respond, summary judgment, if appropriate,
shall be entered against the party. (Emphasis added.)
{¶15} Thus, the fact that the non-moving party failed to file a timely
response in opposition to the motion for summary judgment, standing alone, is not
a proper basis on which to grant summary judgment. Calvalry SPV I LLC v.
Taylor, 7th Dist. Mahoning No.17MA0107, 2018-Ohio-1765, at ¶ 16. “ ‘[E]ven if
the non-moving party does not respond, summary judgment may be granted only if
Highland App. No. 19CA15 7
the movant has satisfied the prerequisites to summary judgment.’ ” Calvalry,
supra, quoting, CitiMortgage, Inc. v. Firestone, 9th Dist. No. 25959, 2012-Ohio-
2044, ¶ 10. Here, despite Appellant’s failure to file a responsive pleading asserting
that there are genuine issues of material fact, we must determine if the trial court’s
ruling in favor of Appellee was appropriate.
{¶16} Civil Rule 56(E) also provides:
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein. Sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be attached
thereto or served therewith.
{¶17} In this case, in November 2018, Appellee filed a suit for money lent
to Appellant on an NRA Visa credit card issued to him. In April 2019, Appellee
filed a motion to correct the record to correct the pleadings to indicate that the First
National Bank of Omaha was the original creditor. Appellee also asserted that
Exhibit A attached to the complaint demonstrated that the First National Bank of
Omaha was the servicer of the NRA Visa credit card.
{¶18} The trial court granted this motion. Exhibit A, Appellant’s NRA Visa
credit account statement demonstrates that on the statement, the First National
Highland App. No. 19CA15 8
Bank of Omaha is the contact name if a copy of Billing Rights is requested. The
First National Bank of Omaha is also the contact name for receipt of any
complaints regarding dissatisfaction with the NRA Visa credit card purchases.
{¶19} In support of the motion for summary judgment, Appellant attached
an affidavit made by Keona I. Berry, employed as a business analyst for Appellee.
In the first paragraph, she averred that she had personal knowledge of the facts
from her review of the account information in the possession of Appellee. Her
affidavit set forth the following additional facts:
2. Plaintiff purchased the receivable after it was in default from the
credit grantor, First National Bank of Omaha, and succeeded to all
rights that Plaintiff’s assignor had against Defendant.
3. This action is based upon a credit agreement entered into between
Defendant and the credit grantor. Pursuant to the agreement,
Defendant agreed to pay monthly installments to the credit grantor.
Upon information and belief, Defendant failed to make payments due
pursuant to the agreement.
4. In the performance of my duties, I’m familiar with the manner and
method by which Plaintiff creates and maintains its normal business
books and records, including computer records of its collection
accounts. Plaintiff maintains computer records of activity on the
accounts that occurred since it purchased the accounts including
payments received, amounts owing on such accounts, credits and
debits, and also has computer records of the information that Plaintiff
acquired from its assignor. Entries are made in such computer
records only by individuals who have examined the account
information at or near the time the events reflected in them occurred
or who have relied on account information from Plaintiff’s assignor.
Plaintiff’s records were made in the regular course of business and it
was the regular course of such business to make the records.
Highland App. No. 19CA15 9
5. The balance, after all prior payments and credits have been
allowed, due and owing to Plaintiff from Defendant is $2,070.52.
6. Attached hereto are true and exact copies of documents reflecting
the transfer of ownership of this account from First National Bank of
Omaha to Plaintiff.
{¶20} In Bank of New York Mellon v. Bobo, 2015-Ohio-4601, 50 N.E.3d
229 (4th Dist.), this court discussed the applicable rules governing the Civ.R. 56(E)
requirement that an affidavit be made on personal knowledge. “ ‘To be considered
in a summary judgment motion, Civ.R. 56(E) requires an affidavit to be made on
personal knowledge, set forth such facts as would be admissible in evidence, and
affirmatively show that the affiant is competent to testify to the matters stated in
the affidavit.’ ” Bobo, supra, at ¶ 35, quoting, Fifth Third Mtge. Co. v. Bell, 12th
Dist. Madison No. CA2013-02-003, 2013-Ohio-3678, ¶ 27, citing Civ.R. 56(E);
see also Wesley v. Walraven, 4th Dist. Washington No. 12CA18, 2013-Ohio-473,
¶ 24. “ ‘ “Absent evidence to the contrary, an affiant's statement that his affidavit
is based on personal knowledge will suffice to meet the requirement of Civ.R.
56(E).” ’ ” Bobo, supra, quoting, Bell at ¶ 27, quoting Wells Fargo Bank v. Smith,
12th Dist. Brown No. CA2012-04-006, 2013-Ohio-855, ¶ 16. “Additionally,
documents referred to in an affidavit must be attached and must be sworn or
certified copies.” Id., citing Civ.R. 56(E). “Verification of these documents is
generally satisfied by an appropriate averment in the affidavit, for example, that
‘such copies are true copies and reproductions.’ ” Id., quoting State ex rel.
Highland App. No. 19CA15 10
Corrigan v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981); see also
Walraven at ¶ 31 (“Civ.R. 56(E)'s requirement that sworn or certified copies of all
papers referred to in the affidavit be attached is satisfied by attaching the papers to
the affidavit with a statement contained in the affidavit that the copies are true and
accurate reproductions.”) JPMorgan Chase Bank, Natl. Assn. v. Fallon, 4th Dist.
Pickaway No. 13CA3, 2014-Ohio-525, ¶ 16.
{¶21} In this case, Berry’s affidavit sets forth the necessary information to
satisfy the requirements of Civ.R. 56(E). Berry specifically stated in the first
paragraph of her affidavit that it was based on her personal knowledge of the facts
obtained through her review of account records made in the course of her
employment as a business analyst for Appellee. In the fourth paragraph of Berry’s
affidavit, she avers that in the performance of her job duties, she is familiar with
the manner and method by which Appellee maintains its computerized business
records of account activity.
{¶22} Further, Berry’s affidavit included explicit statements that the
documents attached were true and exact copies of documents reflecting the transfer
of ownership of the First National Bank of Omaha accounts to Appellee. See
Parsons v. Thacker, 4th Dist. Vinton No. 13CA692, 2013-Ohio-4770, ¶ 11,
quoting Deblasio v. Sinclair, 7th Dist. Mahoning No. 08-MA-23, 2012-Ohio-5848,
¶ 50, quoting State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 467, 423
Highland App. No. 19CA15 11
N.E.2d 105 (1981) (“ ‘ “The requirement of Civ.R. 56(E) that sworn or certified
copies of all papers referred to in the affidavit be attached is satisfied by attaching
the papers to the affidavit, coupled with a statement therein that such copies are
true copies and reproductions” ’ ”); Freedom Mtge. Corp. v. Vitale, 5th Dist.
Tuscarawas No. 2013 AP 08 0037, 2014-Ohio-1549, ¶ 26 (“Ohio law recognizes
that personal knowledge may be inferred from the contents of an affidavit * * *
[and] [t]he assertion of personal knowledge in an affidavit satisfies Civil Rule
56(E) if the nature of the facts in the affidavit combined with the identity of the
affiant creates a reasonable inference that the affiant has personal knowledge of the
facts in the affidavit.”).
{¶23} Appellant has raised the following issues on appeal:
1. Is it error for the trial court to not require Appellee to present any
signed written agreement between the parties?
2. Is it error for trial court to not require Appellee to authenticate its
evidence?
3. Is it error for the trial court to not require the debt collector to
properly validate the alleged debt before litigation?
4. Is it error for the trial court to not consider the Fair Debt Collection
Practices Act violations committed by Appellee or Appellee’s
counsel?
5. Is it error for the trial court to not recognize Appellee’s lack of
privity?
6. Is it error for the trial court to not recognize Appellee’s lack of
consideration?
7. Is it error for the trial court to not rule on Appellant’s alternative
defenses?
8. Is it error for the trial court to not rule on Appellant’s
counterclaims?
Highland App. No. 19CA15 12
9. Is it error for the trial court to not rule that counsel misrepresented
the material facts?
{¶24} Appellant filed no reply to Appellee's motion for summary judgment.
As stated above, although the burden of showing that no genuine issue of material
fact exists falls upon the party requesting summary judgment, once this has been
shown the nonmoving party must then present evidentiary materials demonstrating
that a material issue of fact does exist. Sheppard v. McSweeney’s Inc., 4th Dist.
Lawrence No. CA-95-4, 1995 WL 571890 (Sept. 27, 1995), at *3; Wing v. Anchor
Media, Ltd. of Texas, 59 Ohio St.3d 108, 111, 570 N.E. 2d 1095 (1991); Mitseff v.
Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988); Morehead v. Conley, 75
Ohio App.3d 409, 413, 599 N.E.2d 786, (4th Dist. 1991). “[T]he nonmoving party
cannot rely on bare pleadings unsupported by evidentiary material.” Whiteleather
v. Yosowitz, 10 Ohio Ap.3d 272, 275,461 N.E. 2d 1331, (8th Dist.1983). Rather,
the nonmoving party has an obligation to present evidence in some form permitted
by Civ.R. 56(C) controverting the evidence presented by the moving party.
Rayburn v. J.C. Penney Outlet Store, 3 Ohio App.3d 463, 464, 445 N.E.2d 1167(10th Dist. 1982).
{¶25} The record before us contains no response to plaintiff's motion for
summary judgment. Appellant did not fulfill his obligation to present evidence
controverting that proffered by Appellee. Consequently, there is no genuine issue
of material fact, and reasonable minds could only conclude that Appellant owed
Highland App. No. 19CA15 13
$2,072.52 on his credit card account to Appellee. Appellee is entitled to judgment
as a matter of law, and the trial court did not err in granting Appellee's motion for
summary judgment. Accordingly, Appellant’s assignment of error is overruled,
and the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Highland App. No. 19CA15 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Hillsboro Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J. concur in Judgment and Opinion.
For the Court,
__________________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.