LVNV Funding, L.L.C. v. TakatsLVNV Funding, L.L.C. v. Takats
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Yale R. Levy and Sean M. Winters, for appellee.
Mark Takats, pro se.
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PIETRYKOWSKI, J.
{¶ 1} Mark Takats, appellant, appeals a June 6, 2014 judgment of the Lucas County Court of Common Pleas granting LVNV Funding, LLC (“LVNV“), appellee, summary judgment against him on both liability and damages in an action on an account. Appellant appears pro se.
{¶ 3} LVNV filed a notice of service of its first set of interrogatories, request for production of documents and request for admission on appellant on September 27, 2013, and again on November 18, 2013. Counsel for appellant filed three separate motions in the trial court for extensions of time to respond to the discovery requests. These three motions for extension of time to respond were filed on December 16, 2013, on January 13, 2014, and on February 10, 2014. The trial court granted all three requests. The last extension of time granted by the trial court to respond to the discovery requests (including the set of requests for admissions) required appellant to respond on or before March 10, 2014, to the requests. Appellant ultimately failed to respond to the requests for admissions despite the extensions of time granted by the trial court.
{¶ 4} With leave of court, appellee filed a motion for summary judgment against appellant with supporting materials on March 31, 2014. Facts deemed admitted by failure of appellant to respond to requests for admissions served by LVNV upon
Assignment of Error
{¶ 5} Appellant appears pro se and has failed to provide a statement of assignments of error presented for review in his appeal, as required under
Summary Judgment
{¶ 6} The standard of review on motions for summary judgment is de novo; that is, an appellate court applies the same standard in determining whether summary judgment should be granted as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
{¶ 7} Under
- that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 8} The party moving for summary judgment bears the burden of showing that no genuine issue of fact exists. Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996); Harless at 66. “If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden” under
{¶ 9} Admissions by appellant arising from his failure to respond to LVNV‘s requests for admissions in this case provide the framework of LVNV‘s motion for summary judgment. We consider them first.
{¶ 10} In support of the motion for summary judgment, LVNV filed a copy of the unanswered requests for admissions previously served on appellant, the affidavit of Matthew Sowell, a copy of a bill of sale and assignment executed by Teri All-Klingbeil as vice president on behalf of both The Huntington National Bank and Huntington LT, assignors, a declaration of account transfer, and a military affidavit. LVNV argues that the trial court properly recognized the requests for admissions are deemed admitted and constitute facts upon which a motion for summary judgment was properly granted. The trial court relied only on appellant‘s admissions in its judgment.
{¶ 11}
A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of
Civ.R. 26(B) set forth in the request, that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request.
{¶ 12} Requests for admissions are deemed admitted where they are not answered by the deadline set in the rule. B & T Distributors v. CSK Constr., Inc., 6th Dist. No. L-07-1362, 2008-Ohio-1855, ¶ 12-13; RKT Properties, L.L.C. v. Northwood, 162 Ohio App.3d 590, 2005-Ohio-4178, 834 N.E.2d 393, ¶ 9 (6th Dist.). The rule states:
The matter is admitted unless, within a period designated in the request, not less than twenty-eight days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party‘s attorney.
Civ.R. 36(A)(1) .
{¶ 13} In this case appellant did not respond to LVNV‘s request for admissions within the time period established under
{¶ 15} Accordingly, we conclude that the trial court properly deemed LVNV requests for admissions admitted under the rule and that the admissions constituted facts properly before the court on LVNV‘s motion for summary judgment. Accordingly the following facts are deemed admitted in this case: (1) that appellant applied for a credit card and/or charge account with Huntington Bank; (2) that appellant was issued a credit card/charge account by Huntington Bank; (3) that appellant received monthly statements from Huntington Bank indicating all of the charges appellant made on the account; (4) that appellant charged items on the account with Huntington Bank; (5) that appellant never notified Huntington Bank of any dispute concerning debits or credits to the account; (6) that appellant is not entitled to any credits, offsets, or deductions that have not already been granted by Huntington Bank and LVNV; (7) that LVNV is the owner of appellant‘s Huntington Bank Account; (8) that appellant owes LVNV the sum of $49,715.84 plus interest at the rate of 3 percent from June 28, 2010 on appellant‘s Huntington Bank account which is the subject of this action, (9) that LVNV Funding LLC has complete authority to sue, collect, settle, adjust, compromise and satisfy the account; and (10) that the balance herein sued for is due and owing by appellant to
Action on Account
{¶ 16} “The elements of a breach of contract action are ‘the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff.’ (Citations omitted.) Firelands Regional Med. Ctr. v. Jeavons, 6th Dist. Erie No. E-07-068, 2008-Ohio-5031, ¶ 19.” Burroughs Framing Specialists, Inc. v. 505 W. Main St., L.L.C., 2014-Ohio-3961, 18 N.E.3d 1253, ¶ 32 (6th Dist.). An action on account is based on contract:
An action on an account is founded upon contract, Arthur v. Parenteau (1995), 102 Ohio App.3d 302, 304, 657 N.E.2d 284, and “is appropriate where the parties have conducted a series of transactions for which a balance remains to be paid.” Blanchester Lumber & Supply, Inc. v. Coleman (1990), 69 Ohio App.3d 263, 265, 590 N.E.2d 770. Creditrust Corp v. Richard, 2d Dist. Clark No. 99-CA-94, 2000 WL 896265, *3 (July 7, 2000).
{¶ 17} Appellant argues that the trial court erred in granting LVNV‘s motion for summary judgment on three grounds: (1) that the documents submitted in support of the motion failed to demonstrate an enforceable assignment of rights under the loan note, (2) that appellee failed to establish any clear chain of title of the note, and (3) that appellee suffered no financial loss.
{¶ 19} Appellant admitted to facts demonstrating an enforceable right of LVNV to recover judgment for sums owing on the Huntington Bank charge account. Under the admissions, appellant admitted that he applied for and was issued the account and made charges on the account. Appellant admitted that LVNV now owns the account and that it “has complete authority to sue and collect on the account.” LVNV‘s ownership of the account by assignment was also shown by the affidavit of Mathew Sowell.
{¶ 20} Accordingly, appellant‘s contention that the record fails to demonstrate an enforceable assignment of rights under the loan note to LVNV are without merit. On the same basis, appellant‘s contention that the record fails to establish a clear chain of title to the note is also without merit. Appellant expressly admitted that LVNV owns the account. The Sowell affidavit details the chain of title to the account.
{¶ 21} With respect to the claim that appellee has suffered no financial loss, this contention is also without merit because appellant admitted that there is a balance due and owing on the account to LVNV in the amount of $49,715.84, plus interest at the rate of 3 percent from June 28, 2010.
{¶ 22} Appellant argues further (1) that appellee is not the original mortgage lender, (2) that appellee lacks standing because appellee is not the holder of both the
{¶ 23} Finally, appellant argues that LVNV is not a holder in due course. However, appellant has not claimed or presented evidence on the motion for summary judgment that it has defenses against Huntington Bank that may be asserted against LVNV on claims for liability under the note that would place whether it is a holder in due course in issue in this case.
{¶ 24} In our view, the materials submitted by LVNV in support of its motion for summary judgment established the existence of a loan agreement between Huntington Bank and appellant in the nature of a running charge account, breach of the agreement by appellant in failing to pay sums due under the contract, and damages from the breach. The evidence on the motion for summary judgment also established assignment of contract to LVNV.
{¶ 25} We conclude that LVNV met its burden under
{¶ 26} Accordingly, we find appellant‘s assignment of error not well-taken.
{¶ 27} Justice having been afforded the party complaining, we affirm the judgment of the Lucas County Court of Common Pleas and order appellant to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.