Discover Bank v. HeinzDiscover Bank v. Heinz
Rendered on June 16, 2009
Thomas & Thomas, and Anne C. Little, for appellee.
Stephanie Heinz, pro se.
APPEAL from the Franklin County Municipal Court.
PER CURIAM.
{¶1} Defendant-appellant, Stephanie Heinz, pro se in both the trial court and on appeal, appeals from a judgment of the Franklin County Municipal Court granting the summary judgment motion of plaintiff-аppellee, Discover Bank, and entering judgment for plaintiff in the amount of $8,549.63, plus contractual interest and costs. Because the trial court properly granted summary judgment for plaintiff on its breаch of contract claim
{¶2} Defendant undisputedly signed an application for a Discover Bank credit card (the “Discover card“) on January 22, 2003. Following defendant‘s application, plaintiff issued the Discover card to defendant with a Cardmember Agreement that contained the terms and conditions of the Discover card account. The agreement states that “[t]he use of your Account or a Card by you [the cardholder] or an Authorized User, or your failure to cancel your Account within 30 days after receiving a Card, means you accept this Agreement[.]” (Agreement, 2.)
{¶3} Under the terms of the agreement, the cardholder expressly agrees to pay for “all purchases, cash advances, and balance transfers including applicable Finance Charges and other charges or fees” that the cardholder or an authorized user incurs and tо pay the minimum payment due each month as shown on the monthly billing statement sent to the cardholder. (Agreement, 4.) The agreement provides that if a required payment on the Discover card account is not made when due, the cardholder is in “default.” According to the agreement, plaintiff then can declare the entire balance of the cardholder‘s account immediately due and payable and refer the matter for collection. (Agreement, 8.)
{¶4} Shortly after receiving the Discover card and Cardmember Agreement, defendant made a $6,000 balance transfer to hеr Discover card account and used the Discover card to purchase various goods and services. Defendant made payments on the account until November 2007, when she sent a letter to plaintiff contending she was not
{¶5} On Marсh 28, 2008, plaintiff filed a breach of contract action against defendant seeking to recover damages in the amount of $8,549.63, the balance due according to the January 6, 2008 billing statement for defendant‘s Discover card account. Defendant did not respond to the complaint with an answer. Instead, she filed assorted documentary materials, which the trial court declared on May 5, 2008 to be her “answer” to the complaint.
{¶6} As discovery ensued, plaintiff moved for summary judgment on its breach of contract claim. In support, plaintiff submitted documentary evidence, including defendant‘s signed аpplication for the Discover card, the Cardmember Agreement issued to defendant with her Discover card, defendant‘s Discover card account statements from March 2003 through April 2008, along with аn affidavit authenticating the documents. Plaintiff also submitted plaintiff‘s interrogatories and requests for admissions served upon defendant, together with her responses, and letters exchanged between the parties.
{¶7} In response to plaintiff‘s summary judgment motion, defendant filed a “Motion to Oppose Summary Judgment” as well as a “Motion to Claim and Exercise Constitutional Rights and Require the Presiding Judge to Rule Upon This Motion, and All Public Officers of This Court to Uphold Said Rights,” a “Request [to Plaintiff] for Admissions,” an “Affidavit of Truth” by defendant, a “Notice of Default,” and various documentary materials. Subsequently, defendant also filed: (1) “Motion to Demand This Court Read All Pleadings Defendant Files With This Court, and Adhere Only to Constitutionally Compliant Law and Case Law, and More Particularly, the Bill of Rights, in
{¶8} In opрosition to defendant‘s motion to dismiss, plaintiff filed a copy of its “Response to Defendant‘s First Request for Admissions” that plaintiff had served upon defendant.
{¶9} On October 15, 2008, the trial court conducted a hearing on plaintiff‘s motion for summary judgment and defendant‘s motion to dismiss the complaint. Following the arguments of both parties, the trial court overruled defendant‘s motion to dismiss, concluding neither the law nor the evidence supported it. The trial court granted plaintiff‘s summary judgment motion, determining the evidence revealed no genuine issues as to any material facts and plaintiff is entitled to judgment as a mаtter of law. On October 17, 2008, the court entered judgment for plaintiff in the amount of $8,549.63, plus court costs and contractual interest from January 6, 2008.
{¶10} Defendant timely filed an appeal of the trial court‘s judgmеnt. In her appeal, “without accepting jurisdiction” of this court, defendant filed two motions entitled: (1) “Motion to Challenge Jurisdiction of this Court and to Require the Court to Verify and Prove Jurisdiction in this Matter or to Dismiss for Lack of Jurisdiction” and (2) “Motion for Reconsideration of Heinz‘s Motions.”
{¶11} In her motion challenging jurisdiction of this court, defendant argues that plaintiff‘s case against her must be dismissed because both thе trial court and this court
{¶12} In her motion for recоnsideration, defendant requests that this court “reconsider” the trial court‘s rulings denying the motions defendant filed in that court. Initially, although appellate courts review trial court rulings on appeal, no appellate rule or other legal basis exists for an appellate court to “reconsider” a trial court‘s ruling. More significant to this appeal, defendant‘s motion for reconsideration essentially contains the same arguments defendant presented in her brief on appeal, which we will consider in that context. Defendant‘s motion for reconsideration is overruled.
{¶13} Before addressing the substance of defendant‘s appeal, we note that defendant‘s brief on appeal fails to set forth any specific assignments of error as
{¶14} “To prove a breach of contract claim, a plaintiff must show ‘the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff.’ ” Discover Bank v. Poling, 10th Dist. No. 04AP-1117, 2005-Ohio-1543, ¶17, quoting Nilavar v. Osborn (2000), 137 Ohio App.3d 469, 483, quoting Doner v. Snapp (1994), 98 Ohio App.3d 597, 600. Pursuant to Ohio law, “credit card agreements are
{¶15} On appeal, as in the trial court, defendant argues generally that the contract plaintiff seeks to enforce is ultra vires and fraudulent, and therefore invalid and unenforceable. In support, defendant contends: (1) she never received nor signed a “contract“; (2) plaintiff failed to make full disсlosure it was loaning “credit” rather than “money“; (3) plaintiff gave no lawful consideration in the form of currency or coins and was merely “creating money out of thin air“; (4) plaintiff‘s manner of transacting business made defendant a “debt slave,” in violation of constitutional prohibitions against involuntary servitude; and (5) plaintiff‘s actions denied defendant various constitutional rights, including due process and equal рrotection of the law.
{¶16} We note that similar arguments were raised and rejected as frivolous in Rene v. Citibank N.A. (E.D.N.Y.1999), 32 F.Supp.2d 539. Defendant has not claimed that she did not reap the benefits of using the credit card plaintiff issued. Hеr arguments, like those in Bank of New York v. Barclay, 10th Dist. No. 04AP-48, 2004-Ohio-4555, ¶9, “appear ultimately grounded in the theory that no debt need ever be repaid but at the option and convenience of the debtor.” Although defendant asserts she was denied due process under the law, the record demonstrates she was afforded all the process she was due, including service of plaintiff‘s complaint, opportunities to file motions and have them determined, and the opportunity to present evidence in response to plaintiff‘s summary judgment motion.
{¶18} Because no genuine issue of material fact exists that the parties have a legally binding agreement, defendant breached the agreement, and plaintiff sustained a loss of $8,549.63 as a result of defendant‘s breach, the trial court properly entered summary judgment for plaintiff. Accordingly, the judgment of the Franklin County Municipal Court is affirmed.
Motions denied;
judgment affirmed.
BRYANT, J., FRENCH, P.J., and TYACK, J., concur.
_____________