Target Natl. Bank v. Loncar

[Cite as Target Natl. Bank v. Loncar, 2013-Ohio-3350.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
TARGET NATIONAL BANK, ) CASE NO. 12 MA 104
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
PATRICIA LONCAR, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from County Court No. 5,
Case No. 10CVF2286.
JUDGMENT: Judgment modified and affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney William McCann
1100 Superior Avenue, 19th Floor
Cleveland, Ohio 44114-2581
For Defendant-Appellant: Attorney Thomas Michaels
839 Southwestern Run
Youngstown, Ohio 44514
JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Frank D. Celebrezze, Jr.,
Judge of the Eighth District Court of Appeals,
Sitting by Assignment.
Dated: June 25, 2013
[Cite as Target Natl. Bank v. Loncar, 2013-Ohio-3350.]
VUKOVICH, J.
{¶1} Defendant-appellant Patricia Loncar appeals the decision of Mahoning
County Court No. 5, which entered summary judgment in favor of plaintiff-appellee
Target National Bank. Appellant raises various issues with the adequacy of the
affidavit attached to Target’s summary judgment motion. For instance, she claims
the affidavit does not establish that it was made upon personal knowledge and that it
does not properly incorporate the monthly account statements. These arguments are
without merit as the affidavit adequately established, among other things, that the
employee was a custodian of records for Target, that reviewing Target’s records for
collections is in the scope of his job, and that his review of appellant’s records
provided him with knowledge that her account is delinquent. In addition, the affidavit
properly incorporates the monthly statements.
{¶2} Appellant also argues that her affidavit filed in response to the motion
for summary judgment sufficiently raised a genuine issue of material fact because
she denied that a demand was made and that she owed the amount claimed.
However, a general denial is not sufficient to avoid summary judgment. As explained
infra, there is a minor issue with the amount of the judgment. For the following
reasons, the trial court’s entry of summary judgment is affirmed, but the judgment is
decreased by $5 to $13,935.21.
STATEMENT OF THE CASE
{¶3} On July 30, 2010, Target filed a complaint against appellant for
$13,940.21 as a result of a delinquent credit card account. Attached to the complaint
was the June 11, 2010 billing statement due July 8, which showed that $13,940.21
was both the balance and the minimum payment due and that no payment had been
received the prior month. Default judgment was granted but then vacated after
appellant stated that she never received the complaint. She then filed an answer to
the complaint.
{¶4} Target moved for summary judgment, stating that it was undisputed that
appellant opened the account, used it to make purchases, and then failed to pay her
bills. Exhibit A to the motion contained monthly billing statements from January 11,
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2005 through June 11, 2010. Exhibit B was the affidavit of a Target employee who
stated the balance due on appellant’s account and who swore that the attached
monthly billing statements were kept in the regular course of business.
{¶5} Appellant’s response argued that the employee’s affidavit was deficient
for various reasons and that the monthly statements should not be considered
because they were not properly incorporated into the affidavit. She also attached her
own affidavit denying that she owed Target the amount claimed and denying that she
received a demand for payment regarding a delinquent balance.
{¶6} On May 4, 2012, the trial court granted summary judgment in favor of
Target. Appellant filed a timely notice of appeal. She sets forth one assignment of
error generally contending that the trial court erred as a matter of law in granting
summary judgment to Target. Within her one assignment of error, appellant presents
two main arguments: the employee’s affidavit was insufficient and there existed a
genuine issue of material fact. We divide our analysis accordingly.
SUFFICIENCY OF THE EMPLOYEE’S AFFIDAVIT
{¶7} The facts relied upon in a motion for summary judgment must be the
type of evidence listed in Civ.R. 56(C), which includes affidavits. “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 in the affidavit.” Civ.R. 56(E). The personal
knowledge requirement is satisfied if the affiant states that the affidavit was made on
personal knowledge (unless controverted by other evidence) or if the contents of the
affidavit allow one to infer that the affidavit was made upon personal knowledge.
Bank One, N.A. v. Swartz, 9th Dist. No. 03CA8308, 2004-Ohio-1986, ¶ 14-16
(personal knowledge where affiant stated she was a foreclosure specialist at bank,
loan file was under her immediate supervision, instruments attached to the complaint
were accurate copies of the originals, the account was in default for the amount
stated). See also OhioHealth Corp. v. Ryan, 10th Dist. No. 10AP-937, 2012-Ohio-60,
¶ 32; Chase Bank, USA v. Curren, 191 Ohio App.3d 507, 2010-Ohio-6596, 946
N.E.2d 810, ¶ 18 (4th Dist.) (personal knowledge may be inferred from the contents).
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{¶8} Regarding documents referenced in an affidavit, “Sworn or certified
copies of all papers or parts of papers referred to in an affidavit shall be attached to
or served with the affidavit.” Id. This requirement is satisfied by a statement in the
affidavit declaring that the documents attached are true copies. State ex rel.
Corrigan v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981).
{¶9} Appellant posits that the copies of the monthly statements attached to
the motion for summary judgment fell outside the scope of Civ.R. 56(C) and thus had
to be incorporated by reference in a properly framed affidavit. Appellant then raises
various issues with the employee’s affidavit in order to argue that neither the affidavit
nor the monthly billing statements should have been considered as summary
judgment evidence.
{¶10} First, appellant argues that the affidavit does not show that it was made
with personal knowledge. She relies on a case out of the Ninth District involving an
affidavit signed by this same Target employee. See Target Natl. Bank v. Enos, 9th
Dist. No. 25268, 2010-Ohio-6307. In that case, the court found a lack of personal
knowledge because: it seemed the employee gained his knowledge of the facts
about the account from reading the summary judgment motion rather than from the
business records; the employee’s affidavit predated two of the account statements
submitted; the employee did not identify his position or title; it was not stated that the
employee had personal knowledge of Target’s business practice and records; and
the affidavit did not identify how many documents were attached or identify them by
exhibit letter. Id. at ¶ 11.
{¶11} Contrary to appellant’s argument, the employee’s affidavit here is not
comparable to the one in Enos, which decision is not binding on this court in any
event. The employee’s affidavit here shows that he gained his knowledge of the
account from his review of the business records of Target relating to appellant’s
account, rather than from reading the motion, as he stated that the attached business
records “show” and the business records “indicate” or the business records “do not
show.” None of the account statements predated the affidavit.
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{¶12} The employee stated his job title at Target. He explained that he was
an assistant secretary, that he was authorized to make the affidavit on Target’s
behalf, that the information is true and correct to the best of his knowledge, and that
the scope of his job responsibility involves processing and collection of credit
accounts including appellant’s account.
{¶13} Moreover, the employee stated that he is familiar with the manner and
method by which Target creates and maintains its normal business books and
records, including computer records and data. He noted that he is a custodian of
their records. He then stated that it is the regular practice of Target to send monthly
statement to the accountholders showing the purchases made, payments received,
and amounts owed and to maintain these records in the ordinary course of business
as a part of a regular business practice.
{¶14} Finally, the employee swore that the documents attached were
accurate and correct copies of the records relating to the account at issue. That
account had already been identified by number and name and described as having
monthly statements to evidence its existence. The affidavit was also labeled with a
file number, J48805, that corresponded to the number written on every account
statement provided in Exhibit A. And, the affidavit identified the monthly statements
attached as Exhibit A. Correspondingly, the monthly statements were labeled as
Exhibit A.
{¶15} This leads into appellant’s claim that: the monthly statements were
labeled as Exhibit A to the motion for summary judgment; the affidavit was labeled
Exhibit B to the motion; and thus, the statements were not properly attached to the
back of the affidavit itself. This argument is hypertechnical and without merit in any
event. There is not a failure to attach a document merely because that document is
stapled to the front of an affidavit as opposed to the back of the affidavit. That is,
appellant’s argument would not even exist if the affidavit was labeled Exhibit A and
the statements were labeled Exhibit B instead of vice versa. Regardless, as Target
points out, the language of the rule provides, “attached to or served with the
affidavit.” (Emphasis added.) Civ.R. 56(E).
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{¶16} Finally, we dispose of appellant’s erroneous assertion that her name is
not referenced in the body of the affidavit and that the affidavit appears to be a form
as the state, county, employee’s name, and employee’s job title are handwritten in
pen. However, there is nothing prohibiting the use of a form where an affiant fills in
the blanks specific to a certain case. See Citibank, N.A. v. Lesnick, 11th Dist. No.
2005-L-013, 2006-Ohio-1448, ¶ 15. Additionally, appellant’s name is not only listed
in the heading of the affidavit, but it is also clearly set forth in Paragraph 3 of the
affidavit. In fact, appellant’s name and credit card number are typed into the
document twice.
{¶17} For all of these reasons, appellant’s arguments concerning the affidavit
are overruled.
GENUINE ISSUE OF MATERIAL FACT
{¶18} Summary judgment can be granted where there remain no genuine
issues of material fact for trial and where, after construing the evidence most strongly
in favor of the nonmovant, reasonable minds can only conclude that the moving party
is entitled to judgment as a matter of law. Byrd v. Smith, 110 Ohio St.3d 24, 2006-
Ohio-3455, 850 N.E.2d 47, ¶ 10, citing Civ.R. 56(C). The burden of showing that
there is no genuine issue of material fact initially falls upon the party who files for
summary judgment. Id., citing Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d
264 (1996).
{¶19} Thereafter, the nonmovant may not rest upon “mere allegations or
denials of the party's pleadings” but must respond by setting forth specific facts
showing that there is a genuine issue for trial. Id., citing Civ.R. 56(E). “If the party
does not so respond, summary judgment, if appropriate, shall be entered against the
party.” Civ.R. 56(E). Although courts are cautioned to construe the evidence in favor
of the nonmoving party, summary judgment is not to be discouraged where a
nonmovant fails to respond with evidence supporting the essentials of his claim.
Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993).
{¶20} The initial argument appellant makes here revolves around her belief
that the first statement submitted (which she says is from April 22, 2006) shows a
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balance of $35.10 rather than zero. This argument is without merit and factually
incorrect. The first statement submitted is dated January 11, 2005. It shows that
appellant’s previous balance was $35.10 and that a payment for $35.10 had been
made. Thus, it does in fact show a zero balance prior to that month’s purchases.
This is further demonstrated in that it shows that $667.54 in purchases were made
during that cycle and the new balance was the same amount as the purchases
made, establishing that the account had a zero balance prior to the purchases
specified in that statement.
{¶21} Another argument made here is that the complaint and motion for
summary judgment stated that the amount due was $13,940.21, but the employee’s
affidavit states that appellant’s credit records show a balance of $13,935.21. Target
states that it was not served with her response below and thus did not get a chance
to explain that this was a typographical error in the employee’s affidavit. As Target
points out, the trial court was presented with this argument below and chose the
figure of $13,940.21 because the monthly statement due just prior to the complaint
being filed shows this amount. Target also points out that appellant’s affidavit stated,
“I deny I owe Target National Bank the amount of $13,935.21 or $13,942.21.” Using
her own claim against her, Target urges that appellant did not deny that she owes
Target $13,940.21, allowing the court to use this figure.
{¶22} Contrary to Target’s argument, the employee’s affidavit did not contain
a typographical error. True, the statement due right before the complaint was filed
showed a balance of $13,940.21. However, later statements printed closer to the
time the affidavit was signed showed a balance of $13,935.21. Notably, the
December 2010 statement that shows a $5 “payment from agency” was received.
Thus, Target credited her account $5. As such, the employee’s affidavit and the final
statements attached to that affidavit are consistent.
{¶23} Thus, the error lies in the Target’s attorney’s factual statement in the
motion for summary judgment. Contrary to appellant’s assertion, however, this minor
discrepancy does not create a genuine issue that would wholly allow her to avoid
summary judgment. We are reviewing this case de novo. See Doe v. Shaffer, 90
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Ohio St.3d 388, 390, 738 N.E.2d 1243, 1245 (2000) (de novo review). We can thus
modify the judgment by $5 in favor of appellant.
{¶24} All of the above arguments represent appellant’s contentions
concerning Target’s initial burden in moving for summary judgment. Her final
argument, arising upon the resolution of these arguments, deals with whether she
met her reciprocal burden. Appellant urges that her affidavit, submitted in her
response to Target’s summary judgment motion, creates a genuine issue of material
fact because it states, “I deny I owe Target National Bank the amount of $13,935.21
or $13,942.21.”
{¶25} Target responds that appellant failed to meet her reciprocal burden as
this is a bare denial in a self-serving affidavit, which fails to point to any evidence or
set forth any theory as to why she does not owe this amount. They posit that in
responding to summary judgment, a nonmovant does not meet their reciprocal
burden by merely denying that they owe the amount claimed to be due.
{¶26} “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.) Civ.R. 56(E).
{¶27} In other words, once the initial burden is met, the non-movant has a
reciprocal burden of specificity and cannot rest on the mere allegations or denials in
the pleadings. Pinnacle Credit Servs., Inc. v. Kuzniak, 7th Dist. No. 08MA111, 2009-
Ohio-1021, ¶ 15, citing Dresher, 75 Ohio St.3d at 294. This is so that the movant will
have a meaningful opportunity to respond, which is impossible from a bare denial.
See Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988) (and coining
the phrase, “reciprocal burden of specificity”).
{¶28} This court has upheld summary judgment entered in favor of a creditor
where the defendant merely responded that an amount due is disputed. American
Express Centurian Bank v. Banaie, 7th Dist. No. 10MA9, 2010-Ohio-6503, ¶ 17 (and
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suggesting that the defendant should have offered evidence of what amount was due
or what the interest rate should have been). We reiterated that a person does not
meet their reciprocal burden by relying on generalities and failing to submit evidence
that goes beyond the mere pleading denials. Id. at ¶ 25.
{¶29} A non-movant’s mere denial that a certain listed amount is not owed is
not sufficient to thwart a movant’s request for summary judgment. Id. See also
Discover Bank v. Combs, 4th Dist. No. 11CA25, 2012-Ohio-3150, ¶ 20. “[T]he mere
rejection of the plaintiff's claim does not meet the nonmovant's burden to set forth
specific facts to show there is a genuine issue for trial.” R&R Takhar Oil Co., Inc. v.
PN & SN Mann, L.L.C., 2d Dist. No. 24444, 2011-Ohio-4548, ¶ 20 (Vukovich, J.,
writing opinion by assignment), citing McGuire v. Lovell, 85 Ohio St.3d 1216, 1218,
709 N.E.2d 841 (1999).
{¶30} Here, appellant provided no “specific facts showing that there is a
genuine issue for trial” in violation of Civ.R. 56(E). She did not state that she paid
this amount down to a different amount, that she did not make the purchases
contained in the attached statements, that the interest rate was incorrect, or provide
any other specific facts in support of her bare denial that she owes the amount
alleged. Accordingly, the court’s entry of summary judgment is upheld but modified
by $5 to reflect a judgment in the amount of $13,935.21.
Waite, J., concurs.
Celebrezze, J., concurs.