Doreen Johnson, Plaintiff-Appellant, v. Yale R. Levy, Defendant-Appellee.
No. 18AP-775
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
August 29, 2019
[Cite as Johnson v. Levy, 2019-Ohio-3492.]
(C.P.C. No. 18CV-4149) (REGULAR CALENDAR)
Rendered on August 29, 2019
On brief: Doreen Johnson, pro se.
On brief: Levy & Associates, LLC, and Sean M. Winters, for appellee.
APPEAL from the Franklin County Court of Common Pleas
KLATT, P.J.
{1} Plaintiff-appellant, Doreen Johnson, appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment to defendant-appellee, Yale R. Levy. Because appellee has established that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law, we affirm.
{2} Appellee, an attorney and the owner of Levy & Associates, LLC, a Columbus law firm, was retained by Bank of America, N.A. (“the bank“) to collect on a debt allegedly owed by appellant. On December 12, 2017, appellee sent appellant a letter stating that he and his law firm had been retained by the bank to collect the debt. The letter listed the bank as creditor, appellant as account holder, the last four digits of the account number associated with the debt, and the balance due on the debt ($3,603.02). The letter further
{3} Appellant responded by letter dated January 11, 2018, wherein she disputed the debt and requested validation of the account “pursuant to the Fair Debt Collection Practices Act,
{4} By letter dated January 22, 2018, appellee responded to appellant‘s request for validation, setting forth the name of the original creditor (the bank), the date the account was opened (June 14, 2013), the current balance on the account ($3,603.02), the date of the last account activity (May 15, 2017), and the date the account was charged off (August 31, 2017). Appellee attached to the letter documentation associated with appellant‘s account with the bank. On June 11, 2018, appellee sent appellant a nearly identical letter, again accompanied by documentation pertaining to appellant‘s account with the bank.
{5} On March 6, 2018, appellee filed a collection action in the Franklin County Municipal Court (“municipal court“) on behalf of the bank.1
{7} On August 10, 2018, appellee filed a motion for summary judgment arguing that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law. Appellee supported the motion with his own affidavit along with the three letters and bank documentation referenced above, all of which were incorporated by reference as exhibits into his affidavit. Appellant did not file a response to appellee‘s motion. In a judgment entry dated September 11, 2018, the trial court granted appellee‘s motion for summary judgment.
{8} Appellant has appealed the trial court‘s grant of summary judgment, setting forth a single assignment of error, as follows:
The court erred and abused its discretion in making an order/decision to grant summary judgment in favor of the Defendant. The court also erred without considering Plaintiffs‘/Appellants’ (herein Doreen) evidence or facts stated in Doreen‘s compliant.
(Sic passim.)
{9} In her sole assignment of error, appellant challenges the trial court‘s grant of summary judgment to appellee. Appellant argues that the trial court erred in failing to consider the “evidence or facts” asserted in her complaint, i.e., that she had “no contracts and/or agreements nor any business matters with Yale R. Levy who filed fraudulent documents against [appellant].” (Appellant‘s brief at 1.)
{10} A trial court must grant summary judgment under
{11} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of fact as to a material element of one or more of the nonmoving party‘s claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving party does not discharge this initial burden under
{12} As noted above, appellant‘s complaint alleged claims of fraud, negligent misrepresentation, racketeering, extortion, and violation of Section
{13} To establish a prima facie case of fraud, a plaintiff must demonstrate: “(1) a representation material to the transaction, (2) made falsely, with knowledge of its falsity, or with utter disregard and recklessness regarding its truth or falsity, (3) with the intent to mislead another into reliance, (4) justifiable reliance on the representation * * *, and (5) injury proximately resulting from such reliance.” Kamnikar v. Fiorita, 10th Dist. No. 16AP-736, 2017-Ohio-5605, ¶ 31, citing Burr v. Stark Cty. Bd. of Commrs., 23 Ohio St.3d 69 (1986), paragraph two of the syllabus.
{14} Negligent misrepresentation occurs when ” ’ “[o]ne who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” ’ ” Id., quoting Delman v. Cleveland Heights, 41 Ohio St.3d 1, 4 (1989), quoting 3 Restatement of the Law 2d, Torts, Section 552(1) at 126-27 (1965).
{15} Appellant‘s claim for racketeering ostensibly falls under
{16} Regarding appellant‘s extortion claim,
{17} From what we can discern from appellant‘s complaint, her claims for fraud, negligent misrepresentation, racketeering and extortion allegedly arise from appellee‘s conduct in sending appellant the demand letter and filing the collection action against her, as she had no contacts and/or agreements with appellee or his law firm. Appellant misconstrues the nature of the proceedings against her. Appellee did not seek to collect on a debt owed by appellant to him or his law firm. Rather, in sending the demand letter and filing the collection action, appellee was acting as a debt collector for the bank. Indeed, in his affidavit, appellee attested that he corresponded with appellant in an attempt to collect on an account owed to his client, the bank. (Levy Aug. 10, 2018 Aff. at ¶ 4, 6, 7, and 9, attached to Mot. for Summ. Jgmt.) Appellee‘s affidavit and the documentation incorporated therein with regard to his actions on behalf of the bank demonstrate the absence of a genuine issue of material fact as to these claims.
{18} Appellee‘s
{19} The FDCPA further provides that if the consumer notifies the debt collector in writing within the 30-day period set forth in
{20} The evidentiary materials attached to appellee‘s summary judgment motion, including his affidavit and the December 12, 2017, January 11, January 22, and June 11, 2018 correspondence incorporated therein, demonstrate that there is no genuine issue of material fact as to appellant‘s claim that appellee violated the FDCPA. The correspondence establishes that appellee properly conveyed the information required by the FDCPA to appellant. Appellant offered no qualified summary judgment evidence to establish a factual issue as to appellee‘s compliance with the FDCPA.
{21} Further, there is no indication that the trial court failed to consider the “evidence or facts” contained in appellee‘s complaint. We note initially that the complaint contains merely a litany of causes of action against appellee; it does not include even a formulaic recitation of the elements of any of the causes of action purportedly asserted, not to mention sufficient operative facts to establish the elements of each of the claims. Moreover, the trial court noted in its judgment entry that the evidentiary materials submitted by appellee in support of his motion for summary judgment refuted the claims set forth in the complaint. The court‘s statement in this regard demonstrates that it considered the “evidence or facts” contained in the complaint. The court further noted that appellant failed to present any evidence in response to appellee‘s motion for summary judgment. As noted above, a party confronted with a properly supported motion for summary judgment may not rest on the mere allegations or denials in the pleadings or
{22} Finally, due to her pro se status, appellant requests that this court excuse her noncompliance with court procedure. We cannot do so. “Pro se litigants are presumed to have knowledge of the law and legal procedures and are held to the same standard as litigants who are represented by counsel.” Rizzo-Lortz v. Erie Ins. Grp., 10th Dist. No. 17AP-623, 2019-Ohio-2133, ¶ 18, citing In re Application of Black Fork Wind Energy, LLC, 138 Ohio St.3d 43, 2013-Ohio-5478, ¶ 22. “A litigant proceeding pro se can neither expect nor demand special treatment.” Id., citing Suon v. Mong, 10th Dist. No. 17AP-879, 2018-Ohio-4187, ¶ 26.
{23} There is simply no evidence to support appellant‘s claims for fraud, negligent misrepresentation, racketeering, extortion, or violation of the FDCPA in appellee‘s representation of the bank in the debt collection process against appellant. Thus, appellee has established that there is no genuine issue of material fact remaining to be litigated and that he entitled to judgment as a matter of law. Accordingly, we overrule appellant‘s sole assignment of error, and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and DORRIAN, JJ., concur.