                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0238n.06

                                          No. 10-4352.
                                                                                          FILED
                          UNITED STATES COURT OF APPEALS                             Feb 29, 2012
                               FOR THE SIXTH CIRCUIT
                                                                               LEONARD GREEN, Clerk

ARTHUR F. JONES,                                     )
                                                     )
       Plaintiff-Appellant,                          )
                                                     )
v.                                                   )   ON APPEAL FROM THE UNITED
                                                     )   STATES DISTRICT COURT FOR THE
OPTION ONE        MORTGAGE                           )   SOUTHERN DISTRICT OF OHIO
CORPORATION, ET AL.,                                 )
                                                     )
       Defendants-Appellees.                         )
                                                     )
                                                     )



BEFORE: COLE, GILMAN, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. In this diversity action, Plaintiff-Appellant Arthur

F. Jones (“Jones”) appeals the district court’s grant of summary judgment in favor of mortgage

lenders Defendants-Appellees Sand Canyon Corporation f/k/a Option One Mortgage Corporation

(“Option One”) and American Home Mortgage Servicing Inc. (“AHMSI”), dismissing Jones’s state

and federal claims arising out of Option One’s attempts to collect mortgage payments owed by

Jones. We AFFIRM.

                                                I.

                                                A.

       Jones is in the business of purchasing properties, making needed repairs, and then renting or

selling the properties. Option One was formerly a residential mortgage lender and servicer. Between
Nos. 10-4352
Jones v. Option One Mortgage Corp.

2003 and 2007, Jones executed nine promissory notes payable to Option One, which were secured

by mortgages on properties he owned. Under the terms of the notes, Jones was required to make

loan payments on the first day of each month. However, Jones set up his automatic bank payments

so that his loan payments would be made on the fifth or sixth day of each month. As a result, Option

One representatives would call Jones between the first and sixth day of each month regarding his

mortgage payments. Because each loan was separately serviced, Jones would receive separate calls

regarding each loan.

       Under the terms of the mortgage agreements, if Jones failed to insure his properties, Option

One was entitled to obtain insurance coverage at Jones’s expense. In May 2007, Option One

informed Jones that it had not received proof of insurance relating to several of his mortgaged

properties. In June 2007, Option One obtained insurance coverage (“forced-placed insurance”) for

seven of these properties, not including Jones’s home residence, and applied additional charges to

Jones’s mortgage accounts. Jones did not increase the amount of his automatic payments, and

therefore the monthly payments were insufficient to cover the additional charges on his accounts.

       In August 2007, Option One began sending Jones letters informing him that his mortgage

payments were insufficient to cover the amounts due. Jones called Option One and was told about

the forced-placed insurance. During that call, Jones informed Option One that he already had

insurance coverage through Wade Insurance, and Option One advised Jones to send it proof of

coverage. The following month, an Option One representative spoke with a representative of Wade

Insurance and advised her to fax the declarations page of Jones’s insurance policy as proof of

insurance. In September and October 2007, having received no proof of insurance, Option One sent

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Jones v. Option One Mortgage Corp.

additional letters informing Jones that his payments were deficient and that Option One would no

longer accept partial payments. In November 2007, Jones again did not pay the full amount due on

several of his accounts, and Option One rejected the partial payments.

       Jones testified that whenever he received letters notifying him that Option One had not

received proof of insurance, he called Wade Insurance and asked that someone send proof of

insurance to Option One. Jones further testified that Wade Insurance agents told him that they had

sent proof of insurance to Option One. But he also testified that a Wade Insurance representative

told him that she had been having problems sending faxes to Option One and had received calls from

Option One informing her that it had not received the proof of insurance. Option One asserts that

it finally received Jones’s proof of insurance on November 20, 2007, a date that Jones does not

challenge. (See Jones Dep. at 294.) Option One then cancelled the forced-placed insurance on his

properties and reimbursed him for the payments that had been applied to pay for the forced-placed

insurance.1

       Throughout September, October, and November, Option One representatives called Jones

in an attempt to obtain payment for the shortfalls in his loan payments. Because each loan was

separately serviced, he received separate calls for each loan. Jones received additional calls in

October and December of 2007 because he did not make his monthly payment until more than three




       1
        Option One representative Dale Sugimoto averred that Jones was “reimbursed” after Option
One received proof of insurance, but did not explain whether that meant the funds were sent back
to Jones or credited through an accounts adjustment. (Sugimoto Decl. at ¶ 11.)

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Jones v. Option One Mortgage Corp.

weeks into each month. Jones testified that he sometimes received between twenty and thirty calls

a day from Option One representatives.

          On December 5, 2008, Option One reported to credit bureaus that five of Jones’s accounts

were thirty days past due. In February 2008, Jones learned that Option One had reported some of

his accounts as delinquent when he attempted to get a loan to refinance one of his properties. Jones’s

mortgage broker informed Jones that his credit score, which had ranged from 620 to 643 between

June 2006 and May 2007, had dropped to approximately 544 and was not high enough to qualify for

a loan.

          In Spring 2008, Jones stopped making all payments on his Option One mortgage accounts.

Option One then began foreclosure proceedings as to some of Jones’s properties, including his home

residence.

          AHMSI purchased certain of Option One’s assets, including the right to service Jones’s

loans, in April 2008. Before this time, AHMSI had no involvement with any of Jones’s loans.

                                                   B.

          Jones originally filed a nearly identical action in the Southern District of Ohio in May 2008,

which he moved to voluntarily dismiss at the close of discovery. The district court dismissed Jones’s

sole federal claim under the Fair Credit Reporting Act (“FCRA”) with prejudice and his state-law

claims without prejudice.

          Jones then filed this lawsuit in state court, alleging claims for (1) invasion of privacy, (2)

intentional infliction of emotional distress, (3) tortious interference with a contract, (4) violation of

the Fair Debt Collection Practices Act (“FDCPA”), (5) violation of the FCRA, (6) civil conspiracy,

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Jones v. Option One Mortgage Corp.

and (7) trade libel. Defendants removed the case to federal court and filed a motion to dismiss or

alternatively for summary judgment, which the district court granted. Jones timely appealed,

asserting error only with respect to his state-law claims, thereby abandoning his federal claims.

Jones also asserts that the district court improperly weighed the evidence in granting summary

judgment.

                                                II.

       We review a district court’s grant of summary judgment de novo. See Barr v. Lafon, 538

F.3d 554, 561 (6th Cir. 2008) (citing Clay v. United Parcel Serv., Inc., 501 F.3d 695, 700 (6th Cir.

2007)). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

However, “summary judgment is inappropriate when the evidence raises a genuine issue about a

material fact, that is, if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Clay, 501 F.3d at 700 (quoting Wright v. Murray Guard, Inc., 455 F.3d 702, 706

(6th Cir. 2006) (internal quotation marks and alterations omitted)). The moving party has the initial

burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to identify “specific facts

showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, 477 U.S. 242, 248

(1986). Evidence is viewed in the light most favorable to the nonmoving party. Clay, 501 F.3d at

700 (citation omitted).

       A. Improper Weighing of Evidence



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Jones v. Option One Mortgage Corp.

       Jones first claims that the district court violated Rule 56 of the Federal Rules of Civil

Procedure by relying solely on affidavits filed by the defendant. Jones claims that the facts averred

in the declaration of Option One representative Dale Sugimoto and the deposition of Option One

employee Steven Lujan “are directly disputed by the Plaintiff’s depositional testimony.” (Jones Br.

at 10.) Jones also argues that the district court ignored evidence produced “during interrogatories

and depositions” that demonstrate that Jones had provided “the proper insurance and other

payments.” (Id.)

       This claim is without merit. There is no evidence that the district court failed to consider all

the evidence before it. In fact, Jones’s deposition testimony is cited throughout the district court’s

order. Further, although Jones claims that he produced evidence to establish a material factual

dispute and to demonstrate that he had provided proper insurance and made payments, he cites only

a single page of his deposition in support of his argument and does not explain how anything on that

page establishes a genuine dispute with respect to a material fact.2

       “A district court is not required to speculate on which portion of the record the nonmoving

party relies, nor is it obligated to wade through and search the entire record for some specific facts

that might support the nonmoving party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111

(6th Cir. 1989). Because Jones relies solely on conclusory allegations and fails to establish that the

district court improperly ignored any evidence in granting summary judgment, we find that the


       2
         Jones cites page 313 of his deposition transcript, without elaboration. In that portion of his
testimony, Jones stated that he received the bulk of calls from Option One between the 1st and 6th
day of each month, that he understood that payments were technically due on the 1st of each month,
and that Option One would not impose a late charge until the 15th of each month.

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Jones v. Option One Mortgage Corp.

district court properly evaluated the evidence in accordance with Rule 56 of the Federal Rules of

Civil Procedure.

       B. Invasion of Privacy

       Jones next appeals the district court’s grant of summary judgment on his invasion-of-privacy

claim. The right of privacy is invaded by, inter alia, “the wrongful intrusion into one’s private

activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person

of ordinary sensibilities.” Welling v. Weinfeld, 866 N.E.2d 1051, 1053 (Ohio 2007) (quoting Housh

v. Peth, 133 N.E.2d 340, 343 (Ohio 1956)). However, a creditor “has a right to take reasonable

action to pursue his debtor and persuade payment, although the steps taken may result to a certain

degree in the invasion of the debtor’s right of privacy.” Housh, 133 N.E.2d at 344. In Housh, the

Ohio Supreme Court found that a creditor committed invasion of privacy by “initiat[ing] a systemic

campaign of harassment of the plaintiff, not only in numerous telephone calls . . . every day for a

period of three weeks, some of which were late at night, but also calls to her superiors over the

telephone, informing them of the debt . . . .” Id.

       In response to defendants’ motion for summary judgment, Jones argued merely that the

invasion-of-privacy claim should go to a jury because the court must assume at this stage that

defendants’ actions were unreasonable.        But Jones provided no relevant authority for that

proposition. The case law, in fact, suggests the opposite. See, e.g., Soc’y Bank, N.A. v. Kellar, 579

N.E.2d 717, 720 (Ohio Ct. App. 1989) (finding that a creditor acted reasonably as a matter of law

when it made numerous calls to plaintiff at her home, when it was never asked to stop, and the phone

calls were not abusive in nature and plaintiff did not fear for her safety or welfare).

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Jones v. Option One Mortgage Corp.

       On appeal, Jones argues that the district court erred in finding that Jones did not identify any

facts from which we could conclude that defendants’ actions were unreasonable, and makes vague

and conclusory references to evidence that he claims to have presented to demonstrate that

defendants reported false information. However, the evidence to which Jones points was never

actually put before the district court,3 does not support what Jones alleges,4 or is irrelevant for the

purposes of Jones’s claim.5

       Option One met its burden by producing specific evidence to demonstrate that Jones was

contacted multiple times per day regarding his late payments only because he had nine separate

loans, which Jones conceded he neither paid on time, nor in full, because he did not adjust his

automatic bank payments to cover the additional charges for forced-placed insurance. In response,



       3
         Jones refers to interrogatory answers—presumably from his initial lawsuit— in support of
his claims. But those answers were never submitted to the district court as evidence and are
therefore not in the record. Jones also asserts that he presented emails and phone logs that
demonstrate defendants knew of his separate insurance. But Jones does not provide any specifics
or citations to the record.
       4
         In arguing that he presented documentation of his separate insurance, Jones merely cites to
certain deposition exhibits that contain copies of the promissory notes. But Jones does not explain
how any of the notes provide evidence that Option One knew that Jones was maintaining the
required insurance through a separate provider.
       5
         Jones asserts that Option One representative Lujan offered testimony that supported the
proposition that defendants “knew of [Jones’s] separate insurance and stated that they would correct
their own errors made.” (Jones Br. at 11.) But Jones not only misquotes Lujan in his brief, he does
not explain how Lujan’s admission—that he was unaware of any program that checked Option One’s
automated reporting program for “false positives”—provides support for Jones’s claim of invasion
of privacy. In any event, Lujan testified that before information is reported to a credit agency, “a
report is run and reviewed by . . . the customer service division.” (Lujan Dep., R. 12, at 15.) He also
testified that there were no incorrect reports submitted with respect to Jones.

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Jones v. Option One Mortgage Corp.

Jones identified no specific facts showing that there is a genuine issue for trial regarding when

Option One received proof of insurance, and whether he made his payments when due. Accordingly,

Jones’s invasion-of-privacy claim based on allegedly improper phone calls fails as a matter of law.

        C. Intentional Infliction of Emotional Distress

        To prevail on an intentional-infliction-of-emotional-distress claim, a plaintiff must prove four

elements:

        (1) the defendant intended to cause emotional distress, or knew or should have
        known that his actions would result in serious emotional distress; (2) the defendant’s
        conduct was so extreme and outrageous that it went beyond all possible bounds of
        decency and can be considered completely intolerable in a civilized community; (3)
        the defendant’s actions proximately caused psychological injury to the plaintiff; and
        (4) the plaintiff suffered serious mental anguish of a nature no reasonable person
        could be expected to endure.

Eblin v. Corr. Med. Center, 822 N.E.2d 814, 820–21 (Ohio Ct. App. 2004) (citing Ashcroft v. Mt.

Sinai Med. Ctr., 588 N.E.2d 280, 284 (Ohio Ct. App. 1990)).

        Jones argues that the district court erred in granting summary judgment on this claim because

he offered evidence demonstrating that the defendants “set up an automated system of immediate

credit reporting for any alleged deficiencies; [sic] without a systematic check for false positives.”

(Jones Br. at 13.) This claim is also without merit. Option One’s system of reporting to credit

agencies payment deficiencies in mortgage accounts, after repeatedly providing notice of those

deficiencies, clearly does not constitute extreme and outrageous conduct. See Morrow v. Reminger

& Reminger Co., 915 N.E.2d 696, 714 (Ohio App. Ct. 2009) (“Whether conduct is ‘extreme and

outrageous’ is initially a question of law for the court”). Accordingly, this claim fails as a matter of

law.

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        D. Tortious Interference With Contract

        To prove a claim of tortious interference with a contract, a plaintiff must establish “(1) the

existence of a contract, (2) the wrongdoer’s knowledge of the contract, (3) the wrongdoer’s

intentional procurement of the contract’s breach, (4) lack of justification, and (5) resulting damages.”

Kenty v. Transmerica Premium Ins. Co., 650 N.E.2d 863, 866 (Ohio 1995). The district court

correctly held that Jones’s intentional-interference-with-contract claim failed on each of the first four

elements. Jones never identified evidence of an actual or prospective contract between himself and

a mortgage lender. Jones merely pointed to the deposition of mortgage lender Brian McKenzie, who

stated his belief that Jones would have been able to qualify for a loan in February 2008 if his credit

score was higher than 660. This hypothetical contract that might have come to pass if Jones had

maintained a sufficiently high credit score cannot serve as the basis of a claim of intentional

interference with contract. On appeal, Jones argues for the first time that defendants breached their

own mortgage contracts with Jones, and that the tortious-interference-with-contract claim was

actually “derivative of” this breach of contract. Even assuming this claim has any merit, Jones did

not make this argument to the district court, and it is therefore waived. See Taft Broadcasting Co.

v. United States, 929 F.2d 240, 243 (6th Cir. 1991). Accordingly, the district court did not err in

granting summary judgment with respect to this claim.

        E. Trade Libel

        In Ohio, libel is “a false written publication, made with some degree of fault, reflecting

injuriously on a person’s reputation, or exposing a person to public hatred, contempt, ridicule, shame

or disgrace, or affecting a person adversely in his or her trade, business or profession.” A & B-Abell

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Jones v. Option One Mortgage Corp.

Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 651 N.E.2d 1283, 1289 (Ohio

1995) (citation omitted). Ohio recognizes a qualified privilege in libel actions, which applies where

(1) a statement is made in good faith; (2) in which the person communicating has an interest; (3)

limited in scope to its purpose; (4) made at a proper occasion; and (5) published in a proper manner

to proper parties. Hahn v. Kotten, 331 N.E.2d 713, 718–19 (Ohio 1975); Jackson v. Columbus, 883

N.E.2d 1060, 1064 (Ohio 2008). “A qualified privilege may be defeated only if a claimant proves

with convincing clarity that a publisher acted with actual malice.” Jackson, 883 N.E.2d at 1064

(citing Jacobs v. Frank, 573 N.E.2d 609, 613 (Ohio 1991)).

        The district court properly held that this claim fails as a matter of law because Jones has not

identified any evidence to demonstrate that the information reported was inaccurate. Additionally,

Jones fails entirely to respond to the district court’s holding that, even assuming Jones could

establish a prima facie case of libel, defendants would be entitled to a qualified privilege because the

statements were made in good faith, in the belief that the information was true, pursuant to Option

One’s business interest, limited in scope to that interest, at the proper time, in a proper manner, and

to the proper parties.

        F. Civil Conspiracy

        To establish a civil conspiracy, a plaintiff must demonstrate the following: “(1) a malicious

combination; (2) two or more persons; (3) injury to person or property; and (4) existence of an

unlawful act independent from the actual conspiracy.” Universal Coach, Inc. v. New York City

Transit Auth., Inc., 629 N.E.2d 28, 33 (Ohio App. Ct. 1993). Jones’s civil-conspiracy claim fails

because he has not identified facts to show an underlying unlawful act or a combination of two or

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Jones v. Option One Mortgage Corp.

more persons. On appeal, Jones concedes that there could not have been a conspiracy between

Option One and its successor, AHMSI, but argues for the first time that a civil conspiracy can exist

between two or more persons within an organization. Because Jones did not present this argument

to the district court below, it is waived. See Taft, 929 F.2d at 243. And because Jones has not

established a genuine issue of material fact with respect to any independent unlawful act, we affirm

the district court’s grant of summary judgment on Jones’s civil-conspiracy claim.

                                               III.

       For the foregoing reasons, we AFFIRM the district court’s order granting summary judgment

on all claims.




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