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Fifth Third Bank v. Bolera

Court of Appeals of Ohio, Twelfth District, Butler

December 18, 2017

FIFTH THIRD BANK, Plaintiff-Appellee,
v.
THOMAS BOLERA, Defendant-Appellant.

         CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2016-02-0366

          Graydon Head & Ritchey LLP, Kara A. Czanik, for plaintiff-appellee.

          Megan J. Urban, for plaintiff-appellee.

          Thomas G. Eagle Co., L.P.A., Thomas G. Eagle, for defendant-appellant.

          OPINION

          S. POWELL, J.

         {¶ 1} Appellant, Thomas Bolera, appeals from the decision of the Butler County Court of Common Pleas denying his motions to dismiss and, for summary judgment, and also granting summary judgment to appellee, Fifth Third Bank. For the reasons outlined below, we affirm.

         {¶ 2} On February 8, 2016, Fifth Third Bank filed a complaint against Bolera to collect a debt arising from a delinquent Equity Flexline Credit Agreement, Security Agreement, for the account ending in #9105 that had an outstanding principal balance of $98, 938.55 plus interest and fees. Fifth Third Bank purchased this debt when it merged its northern Kentucky operations with its Ohio-based parent company, thus giving Fifth Third Bank the right to enforce the note against Bolera. The agreement was signed on June 22, 2007 and specifically stated that it would be governed by the laws of the state of Kentucky. There is no dispute that Bolera last paid on the note on December 1, 2009.

         {¶ 3} On February 16, 2016, the complaint was delivered by certified mail to Bolera at 7641 Legendary Lane, West Chester, Butler County, Ohio where it was accepted and signed for by Bolera's purportedly estranged wife.

         {¶ 4} Approximately one month later, on March 10, 2016, Bolera, appearing pro se, filed a motion for a more definite statement, which the trial court denied in a decision issued on March 29, 2016. As part of his motion for a more definite statement, it is undisputed that Bolera listed his address as 7641 Legendary Lane, West Chester, Butler County, Ohio.

         {¶ 5} On April 13, 2016, Bolera, still appearing pro se, filed an answer to Fifth Third Bank's complaint, again listing his address as 7641 Legendary Lane, West Chester, Butler County, Ohio. As part of this answer, Bolera did not include any claim challenging service of process, nor did he raise as an affirmative defense a claim of improper venue.

         {¶ 6} Rather, in addition to making a general denial to Fifth Third Bank's claims, Bolera alleged two counterclaims against Fifth Third Bank, seeking damages in excess of $50, 000. Specifically, Bolera alleged Fifth Third Bank had committed a breach of contract and had further violated the Fair Credit Reporting Act by violating a forbearance agreement entered into between the parties, wherein Fifth Third Bank agreed not to report to the credit bureau "several loans unrelated to the present loan" as being delinquent. The record indicates these "unrelated" loans were mortgages on homes Bolera owned in Oregon and Florida.

         {¶ 7} On April 28, 2016, Fifth Third Bank moved to dismiss Bolera's two counterclaims against it. In support of its motion, Fifth Third Bank argued Bolera had failed to state a claim upon which relief could be granted in accordance with Civ.R. 12(B)(6). On May 13, 2016, Bolera filed a pro se response alleging his two counterclaims should be allowed to proceed since each claim consisted of a short and plain statement containing the necessary operative facts demonstrating he was entitled to relief. As part of this filing, it is undisputed that Bolera once again listed his address as 7641 Legendary Lane, West Chester, Butler County, Ohio.

         {¶ 8} On June 23, 2016, the trial court entered a decision dismissing Bolera's claim alleging Fifth Third Bank had violated the Fair Credit Reporting Act, but did not dismiss Bolera's claim alleging a breach of contract resulting from an alleged breach of the forbearance agreement regarding the mortgages on his Oregon and Florida properties. In so holding, the trial court determined that Bolera fulfilled his notice pleading requirements by alleging Fifth Third Bank breached a contract "by simply reporting the delinquencies, not that the report was inaccurate or incomplete, and he sustained injury as a result of that breach * * *." The trial court then correctly noted that pursuant to Civ.R. 12(B)(6), "[a]s long as there is a set of facts consistent with the claim that would allow recovery, a motion to dismiss may not be granted."

         {¶ 9} On July 28, 2016, new counsel filed a notice of appearance indicating he had been retained to represent Bolera in this matter. Shortly thereafter, on August 31, 2016, Bolera, now represented by counsel, moved for leave to amend his answer and counterclaims to include additional claims alleging unjust enrichment, common law accounting, and breach of the covenant of good faith and fair dealing. Bolera's motion also included a request to add PT Centers of Florida, Inc. ("PT Centers"), owned by Bolera's estranged wife, as a third-party plaintiff to ...


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