      [Cite as PCA Acquisitions L.L.C. v. Parson, 2020-Ohio-3218.]




                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                              HIGHLAND COUNTY

PCA ACQUISITIONS L.L.C.,                            :
                                                    :
      Plaintiff-Appellee,                           :   Case No. 19CA15
                                                    :
      vs.                                           :
                                                    :
ROBERT J. PARSON,                                   :   DECISION AND JUDGMENT
                                                    :   ENTRY
      Defendant-Appellant.                          :

                                        APPEARANCES:

Robert J. Parson, Hillsboro, Ohio, Appellant Pro Se.

Yale R. Levy, Kathleen M. Smith, Levy & Associates, LLC, Columbus, Ohio, for
Appellee.

Smith, P.J.

      {¶1} Robert J. Parson (“Appellant”) appeals the June 25, 2019 entry of the

Hillsboro Municipal Court, which granted PCA Acquisitions, L.L.C.’s

(“Appellee’s”) motion for summary judgment, to which Appellant did not respond.

Having reviewed the record, we find no merit to Appellant’s arguments.

Accordingly, we affirm the judgment of the trial court.

                                               FACTS

      {¶2} On November 26, 2018, Appellee filed a complaint in the Hillsboro

Municipal Court. The complaint alleged that Appellee was the assignee of
Highland App. No. 19CA15                                                                        2


Appellant’s National Rifle Association (NRA) credit card account. The complaint

further alleged that Appellant owed the sum of $2,070.52 for money due to

Appellee via Appellant’s use of the credit card account, and that Appellant had

breached the account agreement for failing to make payments. The complaint

attached a copy of the account statement and demanded judgment for $2,072.52,

plus interest. Appellant was properly served with the complaint.

        {¶3} On December 28, 2018, Appellant filed a responsive pleading

captioned “Private” and indicating it was a response to Appellee’s counsel. For

various reasons contained within the pleading, Appellant answered that the debt

was uncollectable. The trial court scheduled the matter for a pretrial.

        {¶4} On February 6, 2019, Appellee filed a notice of service of written

discovery requests, including requests for admissions. On February 22, 2019,

Appellant filed a motion to dismiss the complaint.1 On March 6, 2019, Appellant

filed a response to the discovery requests. Also on March 6, 2019, Appellant filed

a pleading objecting to or denying all requests for admissions.

        {¶5} On March 8, 2019, Appellee filed Plaintiff’s First Motion for

Extension of Time in order to respond to Appellant’s motion to dismiss. On March

11, 2019, the trial court granted the motion for extension and ordered Appellee




1
 Actually, the pleading was titled “Notice of Motion and Motion Memorandum of Points and Authorities and
Declaration of Robert J. Parson in Support of Motion to Dismiss Complaint and For Damages.”
Highland App. No. 19CA15                                                          3


reply to the motion to dismiss within thirty days. On March 13, 2019, Appellant

filed requests for written discovery and requests for admissions.

      {¶6} On April 8, 2019, Appellee filed Plaintiff’s Motion to Correct the

Record, pursuant to Civ.R. 15. In the motion, Appellee asserted that the creditor’s

name in the original complaint should have been “First National Bank of Omaha,”

not “National Rifle Association.” On April 9, 2019, the trial court granted the

motion to correct the record and ordered that the complaint and court records be

amended so that the original creditor’s name was changed from “National Rifle

Association” to “First National Bank of Omaha.”

      {¶7} On April 10, 2019, Appellee filed Plaintiff’s Memorandum in

Opposition to Defendant’s Motion to Dismiss. Also on April 10, 2019, the trial

court denied the motion to dismiss. Appellee next moved the court for an

extension of time to respond to Appellee’s first set of discovery requests. On April

11, 2019, the trial court ordered that Appellee reply to the discovery requests

within thirty days.

      {¶8} On May 13, 2019, Appellant filed Defendant’s Request to Strike in

Opposition to Plaintiff’s Motion for Summary Judgment. On May 16, 2019,

Appellee filed both a Motion for Leave to File a Motion for Summary Judgment

and a Motion for Summary Judgment. The trial court scheduled a hearing on June

26, 2019. On May 23, 2019, Appellee also filed Plaintiff’s Memorandum in
Highland App. No. 19CA15                                                       4


Opposition to Defendant’s Motion to Strike. On May 29, 2019, the trial court

denied the motion to strike.

      {¶9} On June 21, 2019, the trial court denied Appellant’s request to strike.

On June 25, 2019, the trial court granted both Appellee’s motion for leave and the

motion for summary judgment. This timely appeal followed.

                            ASSIGNMENT OF ERROR

      {¶10} Appellant's brief posits no assignments of error but does raise

several issues. In light of our policy of extending considerable leniency to pro se

litigants, see State v. Esparza, 4th Dist. Washington No. 12CA42, 2013-Ohio-

2138, at ¶ 5; State v. Evans, 4th Dist. Pickaway No. 11CA24, 2013-Ohio-4143, at

¶ 7, fn. 2, we will consider those issues despite Appellant's failure to comply with

App.R. 16(A)(3). State v. Cargile,4th Dist. Scioto No.14CA3661, 2015-Ohio-

3629, at ¶ 5; See also, In re Estate of Poling, 4th Dist. Hocking No. 04CA18, 2005-

Ohio-5147, at ¶ 18.

                           STANDARD OF REVIEW

      {¶11} Appellate review of summary judgment decisions is de novo,

governed by the standards of Civ.R. 56. Turner v. Dimex, 4th Dist. Washington

No. 19CA3, 2019-Ohio-4251, at ¶ 6; Vacha v. N. Ridgeville, 136 Ohio St.3d 199,

2013-Ohio-3020, 992 N.E.2d 1126, ¶ 19; Citibank v. Hine, 4th Dist. Ross, 2019-

Ohio-464, 130 N.E.3d 924, at ¶ 27. Summary judgment is appropriate if the party
Highland App. No. 19CA15                                                         5


moving for summary judgment establishes that (1) there is no genuine issue of

material fact, (2) reasonable minds can come to but one conclusion, which is

adverse to the party against whom the motion is made and, (3) the moving party is

entitled to judgment as a matter of law. Capital One Bank (USA) N.A. v. Rose, 4th

Dist. Ross No. 18CA3628, 2018-Ohio-2209, 2018 WL 2749510, at ¶ 23; Civ.R.

56; New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-

2266, 950 N.E.2d 157, ¶ 24; Chase Home Finance, LLC v. Dunlap, 4th Dist. Ross

No. 13CA3409, 2014-Ohio-3484, at ¶ 26.

      {¶12} The moving party has the initial burden of informing the trial

court of the basis for the motion by pointing to summary judgment evidence

and identifying parts of the record that demonstrate the absence of a genuine

issue of material fact on the pertinent claims. Turner, supra, at ¶ 7; Dresher

v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996); Chase Home

Finance, supra, at ¶ 27; Citibank, supra, at ¶ 28. Once the moving party

meets this initial burden, the non-moving party has the reciprocal burden

under Civ.R. 56(E) to set forth specific facts showing that there is a genuine

issue remaining for trial. Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264.

See also Rose, supra, at ¶ 24.

      {¶13} Pursuant to the above rule, a trial court may not enter summary
Highland App. No. 19CA15                                                         6


judgment if it appears a material fact is genuinely disputed. Turner, supra,

at ¶ 8; Ball v. MPW Indus. Servs., Inc., 2016-Ohio-5744, 60 N.E. 3d 1279

(5th Dist.) at ¶ 29, citing, Vahila v. Hall, 77 Ohio St.3d 421, 429, 674

N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d

264 (1996).

                                   LEGAL ANALYSIS

      {¶14} In this case, Appellant did not file a response in opposition to

Appellee’s motion for summary judgment. Civ.R. 56(E) provides in part that:

      When a motion for summary judgment is made and supported as

      provided in this rule, an adverse party may not rest upon the mere

      allegations or denials of the party's pleadings, but the party's

      response, by affidavit or as otherwise provided in this rule, must set

      forth specific facts showing that there is a genuine issue for trial. If

      the party does not so respond, summary judgment, if appropriate,

      shall be entered against the party. (Emphasis added.)

      {¶15} Thus, the fact that the non-moving party failed to file a timely

response in opposition to the motion for summary judgment, standing alone, is not

a proper basis on which to grant summary judgment. Calvalry SPV I LLC v.

Taylor, 7th Dist. Mahoning No.17MA0107, 2018-Ohio-1765, at ¶ 16. “ ‘[E]ven if

the non-moving party does not respond, summary judgment may be granted only if
Highland App. No. 19CA15                                                         7


the movant has satisfied the prerequisites to summary judgment.’ ” Calvalry,

supra, quoting, CitiMortgage, Inc. v. Firestone, 9th Dist. No. 25959, 2012-Ohio-

2044, ¶ 10. Here, despite Appellant’s failure to file a responsive pleading asserting

that there are genuine issues of material fact, we must determine if the trial court’s

ruling in favor of Appellee was appropriate.

      {¶16} Civil Rule 56(E) also provides:

      Supporting and opposing affidavits shall be made on personal

      knowledge, shall set forth such facts as would be admissible in

      evidence, and shall show affirmatively that the affiant is competent to

      testify to the matters stated therein. Sworn or certified copies of all

      papers or parts thereof referred to in an affidavit shall be attached

      thereto or served therewith.

      {¶17} In this case, in November 2018, Appellee filed a suit for money lent

to Appellant on an NRA Visa credit card issued to him. In April 2019, Appellee

filed a motion to correct the record to correct the pleadings to indicate that the First

National Bank of Omaha was the original creditor. Appellee also asserted that

Exhibit A attached to the complaint demonstrated that the First National Bank of

Omaha was the servicer of the NRA Visa credit card.

      {¶18} The trial court granted this motion. Exhibit A, Appellant’s NRA Visa

credit account statement demonstrates that on the statement, the First National
Highland App. No. 19CA15                                                      8


Bank of Omaha is the contact name if a copy of Billing Rights is requested. The

First National Bank of Omaha is also the contact name for receipt of any

complaints regarding dissatisfaction with the NRA Visa credit card purchases.

      {¶19} In support of the motion for summary judgment, Appellant attached

an affidavit made by Keona I. Berry, employed as a business analyst for Appellee.

In the first paragraph, she averred that she had personal knowledge of the facts

from her review of the account information in the possession of Appellee. Her

affidavit set forth the following additional facts:

      2. Plaintiff purchased the receivable after it was in default from the
      credit grantor, First National Bank of Omaha, and succeeded to all
      rights that Plaintiff’s assignor had against Defendant.

      3. This action is based upon a credit agreement entered into between
      Defendant and the credit grantor. Pursuant to the agreement,
      Defendant agreed to pay monthly installments to the credit grantor.
      Upon information and belief, Defendant failed to make payments due
      pursuant to the agreement.

      4. In the performance of my duties, I’m familiar with the manner and
      method by which Plaintiff creates and maintains its normal business
      books and records, including computer records of its collection
      accounts. Plaintiff maintains computer records of activity on the
      accounts that occurred since it purchased the accounts including
      payments received, amounts owing on such accounts, credits and
      debits, and also has computer records of the information that Plaintiff
      acquired from its assignor.     Entries are made in such computer
      records only by individuals who have examined the account
      information at or near the time the events reflected in them occurred
      or who have relied on account information from Plaintiff’s assignor.
      Plaintiff’s records were made in the regular course of business and it
      was the regular course of such business to make the records.
Highland App. No. 19CA15                                                        9


      5. The balance, after all prior payments and credits have been
      allowed, due and owing to Plaintiff from Defendant is $2,070.52.

      6. Attached hereto are true and exact copies of documents reflecting
      the transfer of ownership of this account from First National Bank of
      Omaha to Plaintiff.

      {¶20} In Bank of New York Mellon v. Bobo, 2015-Ohio-4601, 50 N.E.3d

229 (4th Dist.), this court discussed the applicable rules governing the Civ.R. 56(E)

requirement that an affidavit be made on personal knowledge. “ ‘To be considered

in a summary judgment motion, Civ.R. 56(E) requires an affidavit to be made on

personal knowledge, set forth such facts as would be admissible in evidence, and

affirmatively show that the affiant is competent to testify to the matters stated in

the affidavit.’ ” Bobo, supra, at ¶ 35, quoting, Fifth Third Mtge. Co. v. Bell, 12th

Dist. Madison No. CA2013-02-003, 2013-Ohio-3678, ¶ 27, citing Civ.R. 56(E);

see also Wesley v. Walraven, 4th Dist. Washington No. 12CA18, 2013-Ohio-473,

¶ 24. “ ‘ “Absent evidence to the contrary, an affiant's statement that his affidavit

is based on personal knowledge will suffice to meet the requirement of Civ.R.

56(E).” ’ ” Bobo, supra, quoting, Bell at ¶ 27, quoting Wells Fargo Bank v. Smith,

12th Dist. Brown No. CA2012-04-006, 2013-Ohio-855, ¶ 16. “Additionally,

documents referred to in an affidavit must be attached and must be sworn or

certified copies.” Id., citing Civ.R. 56(E). “Verification of these documents is

generally satisfied by an appropriate averment in the affidavit, for example, that

‘such copies are true copies and reproductions.’ ” Id., quoting State ex rel.
Highland App. No. 19CA15                                                           10


Corrigan v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981); see also

Walraven at ¶ 31 (“Civ.R. 56(E)'s requirement that sworn or certified copies of all

papers referred to in the affidavit be attached is satisfied by attaching the papers to

the affidavit with a statement contained in the affidavit that the copies are true and

accurate reproductions.”) JPMorgan Chase Bank, Natl. Assn. v. Fallon, 4th Dist.

Pickaway No. 13CA3, 2014-Ohio-525, ¶ 16.

      {¶21} In this case, Berry’s affidavit sets forth the necessary information to

satisfy the requirements of Civ.R. 56(E). Berry specifically stated in the first

paragraph of her affidavit that it was based on her personal knowledge of the facts

obtained through her review of account records made in the course of her

employment as a business analyst for Appellee. In the fourth paragraph of Berry’s

affidavit, she avers that in the performance of her job duties, she is familiar with

the manner and method by which Appellee maintains its computerized business

records of account activity.

      {¶22} Further, Berry’s affidavit included explicit statements that the

documents attached were true and exact copies of documents reflecting the transfer

of ownership of the First National Bank of Omaha accounts to Appellee. See

Parsons v. Thacker, 4th Dist. Vinton No. 13CA692, 2013-Ohio-4770, ¶ 11,

quoting Deblasio v. Sinclair, 7th Dist. Mahoning No. 08-MA-23, 2012-Ohio-5848,

¶ 50, quoting State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 467, 423
Highland App. No. 19CA15                                                         11


N.E.2d 105 (1981) (“ ‘ “The requirement of Civ.R. 56(E) that sworn or certified

copies of all papers referred to in the affidavit be attached is satisfied by attaching

the papers to the affidavit, coupled with a statement therein that such copies are

true copies and reproductions” ’ ”); Freedom Mtge. Corp. v. Vitale, 5th Dist.

Tuscarawas No. 2013 AP 08 0037, 2014-Ohio-1549, ¶ 26 (“Ohio law recognizes

that personal knowledge may be inferred from the contents of an affidavit * * *

[and] [t]he assertion of personal knowledge in an affidavit satisfies Civil Rule

56(E) if the nature of the facts in the affidavit combined with the identity of the

affiant creates a reasonable inference that the affiant has personal knowledge of the

facts in the affidavit.”).

       {¶23} Appellant has raised the following issues on appeal:

       1. Is it error for the trial court to not require Appellee to present any
          signed written agreement between the parties?
       2. Is it error for trial court to not require Appellee to authenticate its
          evidence?
       3. Is it error for the trial court to not require the debt collector to
          properly validate the alleged debt before litigation?
       4. Is it error for the trial court to not consider the Fair Debt Collection
          Practices Act violations committed by Appellee or Appellee’s
          counsel?
       5. Is it error for the trial court to not recognize Appellee’s lack of
          privity?
       6. Is it error for the trial court to not recognize Appellee’s lack of
          consideration?
       7. Is it error for the trial court to not rule on Appellant’s alternative
          defenses?
       8. Is it error for the trial court to not rule on Appellant’s
          counterclaims?
Highland App. No. 19CA15                                                       12


      9. Is it error for the trial court to not rule that counsel misrepresented
         the material facts?
      {¶24} Appellant filed no reply to Appellee's motion for summary judgment.

As stated above, although the burden of showing that no genuine issue of material

fact exists falls upon the party requesting summary judgment, once this has been

shown the nonmoving party must then present evidentiary materials demonstrating

that a material issue of fact does exist. Sheppard v. McSweeney’s Inc., 4th Dist.

Lawrence No. CA-95-4, 1995 WL 571890 (Sept. 27, 1995), at *3; Wing v. Anchor

Media, Ltd. of Texas, 59 Ohio St.3d 108, 111, 570 N.E. 2d 1095 (1991); Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988); Morehead v. Conley, 75

Ohio App.3d 409, 413, 599 N.E.2d 786, (4th Dist. 1991). “[T]he nonmoving party

cannot rely on bare pleadings unsupported by evidentiary material.” Whiteleather

v. Yosowitz, 10 Ohio Ap.3d 272, 275,461 N.E. 2d 1331, (8th Dist.1983). Rather,

the nonmoving party has an obligation to present evidence in some form permitted

by Civ.R. 56(C) controverting the evidence presented by the moving party.

Rayburn v. J.C. Penney Outlet Store, 3 Ohio App.3d 463, 464, 445 N.E.2d 1167

(10th Dist. 1982).

      {¶25} The record before us contains no response to plaintiff's motion for

summary judgment. Appellant did not fulfill his obligation to present evidence

controverting that proffered by Appellee. Consequently, there is no genuine issue

of material fact, and reasonable minds could only conclude that Appellant owed
Highland App. No. 19CA15                                                        13


$2,072.52 on his credit card account to Appellee. Appellee is entitled to judgment

as a matter of law, and the trial court did not err in granting Appellee's motion for

summary judgment. Accordingly, Appellant’s assignment of error is overruled,

and the judgment of the trial court is affirmed.

                                        JUDGMENT AFFIRMED.
Highland App. No. 19CA15                                                       14




                                  JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Hillsboro Municipal Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.


Abele, J. and Hess, J. concur in Judgment and Opinion.

                                       For the Court,

                                       __________________________________
                                       Jason P. Smith
                                       Presiding Judge

                                NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
