[Cite as Citibank v. Valentine, 2012-Ohio-2786.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


CITIBANK, N.A.                                     :      JUDGES:
                                                   :
                                                   :      Hon. Patricia A. Delaney, P.J.
       Plaintiff-Appellee                          :      Hon. William B. Hoffman, J.
                                                   :      Hon. Julie A. Edwards, J.
-vs-                                               :
                                                   :      Case No. 11 CAE 10 0087
LEWIS J. VALENTINE                                 :
                                                   :
                                                   :
       Defendant-Appellant                         :      OPINION


CHARACTER OF PROCEEDING:                               Appeal from the Delaware County Court of
                                                       Common Pleas, Case No. 11 CVH 01-
                                                       0136



JUDGMENT:                                              AFFIRMED




DATE OF JUDGMENT ENTRY:                                June 20, 2012




APPEARANCES:

For Appellant:                                            For Appellee:

LEWIS VALENTINE, PRO SE                                   HARRY J. FINKLE IV
4642 Aberdeen Ave.                                        1900 Fifth Third Center
Dublin, OH 43016                                          511 Walnut St.
                                                          Cincinnati, OH 45202-3157
Delaney, P.J.

       {¶1} Defendant-Appellant Lewis J. Valentine appeals the September 21, 2011

judgment entry of the Delaware County Court of Common Pleas granting summary

judgment in favor of Plaintiff-Appellee Citibank, N.A.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} On January 27, 2011, Citibank filed a Complaint for Money against

Valentine in the Delaware County Court of Common Pleas. The Complaint alleged

Valentine executed and delivered to Citibank a Home Equity Line of Credit Agreement

and Disclosure on March 10, 2006. In the Complaint, Citibank refers to the Home

Equity Line of Credit Agreement and Disclosure as a Promissory Note. The Home

Equity Line of Credit Agreement and Disclosure was attached to the Complaint.

       {¶3} Based on the terms of the Home Equity Line of Credit Agreement and

Disclosure, Valentine was eligible to finance up to $285,000. Valentine drew on the

account and made some payments on the account. Valentine became delinquent on

the account and owes $276,748.14, plus interest and costs.

       {¶4} The case proceeded through limited discovery.        On June 13, 2011,

Citibank filed a motion for summary judgment on its Complaint.        The motion for

summary judgment was supported by the affidavit of Courtney Beaver, Assistant Vice

President of Citibank.    Valentine filed a reply, attaching his personal affidavit in

support.

       {¶5} On September 21, 2011, the trial court granted the motion for summary

judgment in favor of Citibank. The trial court found there was no genuine issue of

material fact that Valentine entered into the Home Equity Line of Credit Agreement
and Disclosure with Citibank and was now delinquent under the terms of the

agreement.

     {¶6} It is from this judgment Valentine now appeals.

                           ASSIGNMENTS OF ERROR

     {¶7} Valentine’s pro se appeal raises five Assignments of Error:

     {¶8}    “I. THE TRIAL COURT ERRED IN BY SUBSTITUTING A TRUTH IN

LENDING DOCUMENT TITLED HOME EQUITY LINE OF CREDIT AGREEMENT

AND DISCLOSURE FOR THE ACTUAL PROMISSORY NOTE, HENCE SUMMARY

JUDGMENT BECOMES INAPPROPRIATE AND MUST BE DENIED.

     {¶9} “II.     THE     TRIAL    COURT      ERRED        BY    FINDING   THE

PLAINTIFF/APPELLEE IS NOT SEEKING JUDGMENT ON A NOTE.

     {¶10} “III. THE TRIAL COURT ERRED IN BY SUBSTITUTING THE TRIAL

COURT’S OPINION IN PLACE OF A KNOWN DEFECTIVE AFFIDAVIT IN BY

RENDERING JUDGMENT APPLYING THE COURT’S SUBSTITUTION AS BASIS.

     {¶11} “IV. THE TRIAL COURT ERRED WHEN APPLYING THE LAW TO THE

UNDISPUTED MATERIAL FACTS THUS RENDERING PLAINTIFF/APPELLEE’S

SUMMARY JUDGMENT INAPPROPRIATE AND MUST BE DENIED.

     {¶12} “V. THE TRIAL COURT ERRED IN BY PREMATURELY HALTING THE

DISCOVERY        PROCESS    THUS    DENYING      DEFENDANT/APPELLANT        HIS

EVIDENCE AND ANY PROTECTION UNDER THE LAW.”
                                        ANALYSIS

                                        I., II., III., IV.

                                 STANDARD OF REVIEW

       {¶13} We review Valentine’s first, second, third, and fourth Assignments of

Error together because they relate to Citibank’s motion for summary judgment and the

trial court’s granting of the same.

       {¶14} We review a summary judgment de novo and without deference to the

trial court's determination. When an appellate court reviews a trial court's disposition

of a summary judgment motion, it applies the same standard of review as the trial

court and conducts an independent review, without deference to the trial court's

determination. We must affirm the trial court's judgment if any grounds the movant

raised in the trial court support it. Westbrook v. Swiatek, 5th Dist. No. 09CAE09-0083,

2011-Ohio-781, ¶ 43.

       {¶15} Pursuant to Civ.R. 56(C), summary judgment “shall be rendered forthwith

if the pleadings, depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,

show that there is no genuine issue as to any material fact and that the moving party

is entitled to summary judgment as a matter of law.”

       {¶16} The moving party bears the initial responsibility of informing the trial

court of the basis for the motion, and identifying those portions of the record before the

trial court, which demonstrate the absence of a genuine issue of fact on a material

element of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662

N.E.2d 264 (1996). The nonmoving party then has a reciprocal burden of specificity
and cannot rest on the allegations or denials in the pleadings, but must set forth

“specific facts” by the means listed in Civ.R. 56(C) showing that a “triable issue of fact”

exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

        HOME EQUITY LINE OF CREDIT AGREEMENT AND DISCLOSURE

       {¶17} Valentine argues in his first and second Assignments of Error the trial

court erred when it granted summary judgment in favor of Citibank because in support

of Citibank’s motion for summary judgment, Citibank presented a Home Equity Line of

Credit Agreement and Disclosure, not a Promissory Note.             Valentine asserts he

entered into a Promissory Note with Citibank, not a Home Equity Line of Credit

Agreement and Disclosure.        Because Citibank has failed to produce the valid

documents in support of its motion for summary judgment, Valentine argues there is a

genuine issue of material fact as to whether there is a breach of the Promissory Note.

       {¶18} We disagree.      As the trial court noted in its September 21, 2011

judgment entry granting summary judgment in favor of Citibank, Citibank produced a

contract for a Home Equity Line of Credit signed by Valentine on March 10, 2006. The

Home Equity Line of Credit Agreement and Disclosure, which Citibank refers to as a

“Note,” contains the terms of the agreement. The terms of the agreement include the

amount of the credit limit, the interest rate on the agreement, payment obligations, and

default provisions. This evidence is verified with a Civ.R. 56 affidavit from Courtney

Beaver, Assistant Vice President with Citibank.

       {¶19} Valentine argues in his third Assignment of Error that the affidavit

provided by Citibank is defective. He refers to “Exhibit A” referenced in the Beaver

affidavit in support of the motion for summary judgment. The Beaver affidavit states
“Exhibit A” is a hard copy print out of the financial information, including the balance

owing. Valentine argues that there is no “Exhibit A” attached to the affidavit. Upon

review of Citibank’s motion for summary judgment, it shows Citibank attached Exhibits

A, B, and C to their motion for summary judgment. Exhibits A, B, and C are the Home

Equity Line of Credit Agreement and Disclosure, balance statements of the loan, and

Beaver affidavit, respectively. Attached to the Beaver affidavit is the first page of the

Home Equity Line of Credit Agreement and Disclosure with Valentine’s signature,

Valentine’s promise to pay the loan, and a balance statement showing the amount due

and owing on the loan at the time of default. While not specifically marked “Exhibit A,”

we find the existence of an agreement, the terms of the agreement and balance due

are established by the Beaver affidavit. See Discover Bank v. Heinz, 10th Dist. No.

08Ap-1001, 2009-Ohio-2850.       These evidentiary materials are sufficient to carry

Citibank’s burden of showing that there was no genuine issue of material fact and that

it was entitled to judgment as a matter of law on its claims. See Citibank (S.Dakota),

N.A. v. Lesnick, 11th Dist. No.2005-L-013, 2006-Ohio-1448.

      {¶20} The burden thereupon shifted to Valentine to affirmatively demonstrate

the existence of genuine issues of material fact. Dresher, supra. Valentine does not

dispute he borrowed money from Citibank and he made payments on the loan. His

affidavit, filed with his response to Citibank’s motion for summary judgment, attests

that at the closing he signed a Promissory Note and a mortgage deed to the property.

He argues the Home Equity Line of Credit Agreement and Disclosure attached to

Citibank’s Complaint and to the motion for summary judgment is not the Promissory

Note signed by Valentine but rather a Truth in Lending Statement.
       {¶21} Valentine does not present any contrary documents in support of his

argument. He states that he signed a Promissory Note and mortgage, but he never

received a copy of those documents. He stated in his response to the motion to

summary judgment that without the correct documents, “perhaps” the interest rate was

wrong and “perhaps” the calculation of payments and credits were incorrect. Pursuant

to Civ.R. 56, the non-moving party cannot rest upon conclusory statements to create a

genuine issue of material fact. The non-moving party must point to specific facts to

demonstrate a genuine issue of material fact for trial. Misteff, supra.

       {¶22} Upon our de novo review, we find that Citibank met its burden under

Civ.R. 56 to establish an absence of a genuine issue of triable fact that Valentine

entered into the Home Equity Line of Credit Agreement and Disclosure, failed to make

payments under the agreement, and breached the agreement.

       {¶23} Valentine’s first, second, third, and fourth Assignments of Error are

overruled.

                                           V.

       {¶24} Valentine argues in his fifth Assignment of Error the trial court erred in

ruling on Citibank’s motion for summary judgment while discovery was pending in the

case. We disagree.

       {¶25} Civ.R. 56(F) provides the remedy for a party who seeks a continuance

on a motion for summary judgment in order to conduct discovery relevant to the

motion. TPI Asset Mgt., LLC v. Baxter, 5th Dist No. 2011CA000007, 2011-Ohio-5584

¶ 16 citing Jacobs v. Jones, 10th Dist. No. 10AP–930, 2011–Ohio–3313, ¶ 58. Civ.R.

56(F) provides, “[s]hould it appear from the affidavits of a party opposing the motion
for summary judgment that the party cannot for sufficient reasons stated present by

affidavit facts essential to justify the party's opposition, the court may refuse the

application for judgment or may order a continuance to permit affidavits to be obtained

or discovery to be had or may make such other order as is just.”

      {¶26} The record shows Valentine made no such motion to the trial court to

continue the summary judgment for Valentine to receive his discovery requests. While

Valentine proceeded pro se, pro se litigants are not exempt from complying with the

rules and regulations.    “Pro se civil litigants are bound by the same rules and

procedures as those litigants who retain counsel. They are not to be accorded greater

rights and must accept the results of their own mistakes and errors.” Meyers v. First

Ntl. Bank of Cincinnati, 3 Ohio App.3d 209, 210 (1st Dist.1981).

      {¶27} The absence of a Civ.R. 56(F) motion gave the trial court no alternative

but to rule on the pending motion for summary judgment.

      {¶28} Valentine’s fifth Assignment of Error is overruled.
                                  CONCLUSION

      {¶29} Our de novo review of Citibank’s motion for summary judgment shows

that reasonable minds could only conclude that Citibank is entitled to judgment as a

matter of law.

      {¶30} Valentine’s five Assignments of Error are overruled.

      {¶31} The judgment of the Delaware County Court of Common Pleas is

affirmed.

By: Delaney, P.J.

Hoffman, J. and

Edwards, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. WILLIAM B. HOFFMAN



                                      HON. JULIE A. EDWARDS




PAD:kgb
                  IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


                                      :
CITIBANK, N.A.                        :
                                        :
   Plaintiff - Appellee                 :       JUDGMENT ENTRY
                                        :
                                        :
-vs-                                    :
                                        :       Case No.   11 CAE 10 0087
LEWIS J. VALENTINE                      :
                                        :
   Defendant - Appellant                :
                                        :


       For the reasons stated in our accompanying Opinion on file, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                        HON. PATRICIA A. DELANEY



                                        HON. WILLIAM B. HOFFMAN



                                        HON. JULIE A. EDWARDS
