[Cite as MSW Capital, L.L.C. v. Bryant, 2017-Ohio-5683.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


MSW Capital, LLC                                           Court of Appeals No. L-16-1200

        Appellee                                           Trial Court No. CVF-16-01755

v.

Ian Bryant                                                 DECISION AND JUDGMENT

        Appellant                                          Decided: June 30, 2017


                                                 *****

        C. Edward Noe, for appellee.

        Ian Bryant, pro se.

                                                 *****

        JENSEN, P.J.

        {¶ 1} Defendant-appellant, Ian D. Bryant, appeals from a summary judgment

rendered against him and in favor of MSW Capital, L.L.C. (“MSW”). Bryant, who is pro

se, argues that the trial court erred when it rendered summary judgment against him. For

the reasons that follow, we affirm.
       {¶ 2} MSW brought this action against Bryant, contending that it was the assignee

of the interest of Credit One Bank NA (Credit One) in a credit card account in Bryant’s

name upon which there was due and payable the sum of $1,459.84, plus interest from

September 18, 2013, at the rate of 23.9 percent per annum. Bryant, pro se, filed an

answer denying the allegations set forth in the complaint.

       {¶ 3} MSW served a request for admissions on Bryant by regular U.S. Mail.

Bryant did not respond to the admissions within the required 28 days. Relying, in part,

on the unanswered admissions, MSW moved for summary judgment. Bryant responded

to the motion for summary judgment denying, generally, the facts set forth in the motion

for summary judgment, including matters which were deemed admitted, without

mentioning any issue with the service of the request for admissions. Bryant did not

explain to the trial court why he failed to respond to the request for admissions, nor did

he seek to have the admissions withdrawn or amended. The trial court granted summary

judgment in favor of MSW.

       {¶ 4} Appellant, acting pro se, timely appealed the judgment entry. In his brief, he

raised the following assignment of error:

              THE TRIAL COURT ABUSED IT’S DESCRETION TO THE

       PREJUDICE OF THE DEFENDANT BY RULING IN FAVOR OF THE

       PLAINTIFF REGARDING SUMMARY JUDGMENT IN HIS FAVOR IN

       VIOLATION OF THE DEFENDANT’S DUE PROCESS AND EQUAL

       PROTECTION RIGHTS AND IN VIOLATION OF THE [OHIO

       REVISED CODE].

2.
       {¶ 5} Bryant asserts that the trial court committed reversible error when it granted

MSW’s motion for summary judgment. The crux of Bryant’s argument is that the trial

court’s docket sheet fails to show that Bryant was served with a copy of MSW’s request

for admission and that he never received a copy of the admissions by either certified or

express mail.

       {¶ 6} Civ.R. 36 (A) provides, in relevant part:

                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 statement or opinions of fact or of the application of law to fact,

       including the genuineness of any document described in the request. * * *

       The request may, without leave of court, be served upon * * * any * * *

       party with or after service of the summons and complaint upon that party.

       {¶ 7} Service of a Civ.R. 36(a) request for admission is governed by Civ.R. 5.

Pursuant to Civ.R. 5(B), “service is complete upon mailing.” A presumption of proper

service arises when the record reflects that a party has followed the Civil Rules pertaining

to service of process. Potter v. Troy, 78 Ohio App.3d 372, 377, 604 N.E.2d 828 (2d

Dist.1992). “The presumption may be rebutted by sufficient evidence to the contrary.”

Id.

       {¶ 8} Here, a certificate of service attached to MSW’s request for admissions

states that the counsel served a copy of the request on April 25, 2016. Bryant has not



3.
rebutted the presumption of proper service with evidence to the contrary. There is no

evidence by affidavit or sworn testimony in the record indicating that a copy of the

request for admissions was not received or that the address used by counsel to serve

Bryant was incorrect. Thus, the trial court did not error in deeming the matters contained

within the request admitted.

       {¶ 9} In its motion for summary judgment, MSW claimed that Bryant opened a

credit card account with Credit One Bank. The account became delinquent and MSW

purchased the account from Credit One Bank. MSW further claimed that it purchased the

credit card account from Credit One Bank pursuant to an assignment of accounts and bill

of sale attached to the complaint. Attached to the motion for summary judgment was the

affidavit of Henry Benton, account manager for MSW Capital, LLC, attached. Benton,

as custodian of appellee’s books and records, averred, in relevant part, that at the time

MSW purchased the subject account from Credit One Bank NA, Bryant was indebted to

Credit One for unpaid credit card account charges. MSW further alleged that because

Bryant failed to respond to its request for admissions, the matters contained therein

should be deemed admitted. A copy of the request for admissions was attached to the

motion for summary judgment.

       {¶ 10} Any matter deemed admitted under Civ.R. 36 is conclusively established

unless the court allows withdrawal or amendment. An admission can be used to establish

a fact essential to the case because the purpose of a request for admission is to eliminate

any issue not in dispute, if possible. Cleveland Trust Company v. Willis, 20 Ohio St.3d



4.
66, 485 N.E.2d 1052 (1985). We have reviewed the admissions and evidence set forth in

the motion for summary judgment. We find that the trial court did not error in granting

summary judgment in favor of MWS. Accordingly, Bryant’s sole assignment of error is

overruled.

       {¶ 11} For the foregoing reasons, the judgment of the Toledo Municipal Court is

affirmed. Costs of this appeal are assessed to appellant pursuant to App.R. 24.

                                                                      Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, P.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.supremecourt.ohio.gov/ROD/docs/.



5.
