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Target National Bank v. Loncar

Court of Appeals of Ohio, Seventh District

June 25, 2013

TARGET NATIONAL BANK, PLAINTIFF-APPELLEE,
v.
PATRICIA LONCAR, DEFENDANT-APPELLANT.

Civil Appeal from County Court No. 5, Case No. 10CVF2286.

For Plaintiff-Appellee: Attorney William McCann

For Defendant-Appellant: Attorney Thomas Michaels

JUDGES: Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Hon. Frank D. Celebrezze, Jr., Judge of the Eighth District Court of Appeals, Sitting by Assignment.

OPINION

VUKOVICH, J.

{¶1} Defendant-appellant Patricia Loncar appeals the decision of Mahoning County Court No. 5, which entered summary judgment in favor of plaintiff-appellee Target National Bank. Appellant raises various issues with the adequacy of the affidavit attached to Target's summary judgment motion. For instance, she claims the affidavit does not establish that it was made upon personal knowledge and that it does not properly incorporate the monthly account statements. These arguments are without merit as the affidavit adequately established, among other things, that the employee was a custodian of records for Target, that reviewing Target's records for collections is in the scope of his job, and that his review of appellant's records provided him with knowledge that her account is delinquent. In addition, the affidavit properly incorporates the monthly statements.

{¶2} Appellant also argues that her affidavit filed in response to the motion for summary judgment sufficiently raised a genuine issue of material fact because she denied that a demand was made and that she owed the amount claimed. However, a general denial is not sufficient to avoid summary judgment. As explained infra, there is a minor issue with the amount of the judgment. For the following reasons, the trial court's entry of summary judgment is affirmed, but the judgment is decreased by $5 to $13, 935.21.

STATEMENT OF THE CASE

{¶3} On July 30, 2010, Target filed a complaint against appellant for $13, 940.21 as a result of a delinquent credit card account. Attached to the complaint was the June 11, 2010 billing statement due July 8, which showed that $13, 940.21 was both the balance and the minimum payment due and that no payment had been received the prior month. Default judgment was granted but then vacated after appellant stated that she never received the complaint. She then filed an answer to the complaint.

{¶4} Target moved for summary judgment, stating that it was undisputed that appellant opened the account, used it to make purchases, and then failed to pay her bills. Exhibit A to the motion contained monthly billing statements from January 11, 2005 through June 11, 2010. Exhibit B was the affidavit of a Target employee who stated the balance due on appellant's account and who swore that the attached monthly billing statements were kept in the regular course of business.

{¶5} Appellant's response argued that the employee's affidavit was deficient for various reasons and that the monthly statements should not be considered because they were not properly incorporated into the affidavit. She also attached her own affidavit denying that she owed Target the amount claimed and denying that she received a demand for payment regarding a delinquent balance.

{¶6} On May 4, 2012, the trial court granted summary judgment in favor of Target. Appellant filed a timely notice of appeal. She sets forth one assignment of error generally contending that the trial court erred as a matter of law in granting summary judgment to Target. Within her one assignment of error, appellant presents two main arguments: the employee's affidavit was insufficient and there existed a genuine issue of material fact. We divide our analysis accordingly.

SUFFICIENCY OF THE EMPLOYEE'S AFFIDAVIT

{¶7} The facts relied upon in a motion for summary judgment must be the type of evidence listed in Civ.R. 56(C), which includes affidavits. "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 in the affidavit." Civ.R. 56(E). The personal knowledge requirement is satisfied if the affiant states that the affidavit was made on personal knowledge (unless controverted by other evidence) or if the contents of the affidavit allow one to infer that the affidavit was made upon personal knowledge. Bank One, N.A. v. Swartz, 9th Dist. No. 03CA8308, 2004-Ohio-1986, ¶ 14-16 (personal knowledge where affiant stated she was a foreclosure specialist at bank, loan file was under her immediate supervision, instruments attached to the complaint were accurate copies of the originals, the account was in default for the amount stated). See ...


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