COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73723 HUNTINGTON NATIONAL BANK, : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION TERRY SHANE METZENBAUM, : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 12, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-292730 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Defendant-Appellant: TERRY S. METZENBAUM, Pro Se 3882 Bushnell Road University Heights, Ohio 44118 For Plaintiff-Appellee: ALAN H. WEINBERG JAMES P. VALECKO 323 Lakeside Avenue Suite 200 Cleveland, Ohio 44113-1099 DAVID ARNOLD 2500 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2241 TERRENCE O'DONNELL, PRESIDING JUDGE: Terry Metzenbaum, pro se, appeals from orders of the common -2- pleas court granting summary judgment in favor of the Huntington National Bank on his delinquent credit card balance and also granting Huntington Bank summary judgment on Metzenbaum's counterclaim. Metzenbaum argues that the court erred in failing to apply the provisions of the Fair Debt Collection Practices Act. This action arose when Metzenbaum failed to make payments on his Mastercard account with the Huntington Bank, and Huntington exercised its right to accelerate the entire balance due. Huntington sent Metzenbaum a written demand for payment of the debt identifying itself as the creditor, informing him that it planned to file suit against him in the Shaker Heights Municipal Court, and giving him a notice which stated in part: * * * if you notify us in writing within the thirty (30) day period that the debt, or any portion of the debt is disputed and/or request the name of the original creditor, we will not take any action to obtain a Judgment against you in the pending lawsuit until the verification of the debt and/or the name of the original creditor has been provided to you. Although Metzenbaum disputed the debt, on June 8, 1995, Huntington filed suit in Shaker Heights Municipal Court seeking a judgment for the outstanding balance on his account. Metzenbaum then wrote to Huntington protesting the debt and requesting verification of it, and also filed an answer and counterclaim, alleging that Huntington violated the Fair Debt Collection Practices Act. Because he sought damages in excess of the court's monetary jurisdiction, the court transferred the case to common pleas court. In response to Metzenbaum's letter, Huntington's counsel -3- furnished a copy of his original signed application for the card, a copy of the Mastercard and Visa Agreement and Disclosure Statement, and copies of his monthly billing statements indicating charges, payments, and the outstanding balance. Metzenbaum then filed a motion for summary judgment, which the court denied. On March 25, 1996, Metzenbaum filed a second motion for summary judgment, alleging the verification which Huntington supplied him, consisting of a signed copy of his application for the Mastercard, the Mastercard and Visa Agreement and Disclosure Statement, and copies of his monthly statements, failed to comply with the FDCPA because he had requested actual receipts from each transaction. Huntington filed a cross motion for summary judgment, contending that because Metzenbaum defaulted under the terms of the agreement, Metzenbaum became obligated to pay the balance due on the account. The court denied Metzenbaum's motion and granted judgment in favor of Huntington in the amount of $5,426.35, together with accrued interest of $28.02 through June 5, 1995, and interest thereafter in the amount of 16.9% per annum. Metzenbaum now appeals and presents three assignments of error: I. THE COURT BELOW ERRED IN THE APPLICATION OR FAILURE TO APPLY THE PROVISIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. 1601 ET. SEQ. II. THE COURT BELOW ERRED IN ORDERING APPELLANT TO PROVIDE DEPOSITION TESTIMONY TO APPELLEE, IN CLEAR VIOLATION OF THE PROVISIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT, 15 USC 1601 ET. SEQ. -4- III. THE COURT BELOW FAILED TO TIMELY RULE ON A MOTION PENDING BEFORE SAID COURT, AND, AS A RESULT, APPELLANT'S RIGHT TO APPEAL WAS UNJUSTLY DELAYED. Metzenbaum essentially contends the court erred in granting Huntington's motion for summary judgment because it misapplied provisions of the Fair Debt Collection Practices Act, ordered him to appear for a deposition, and delayed his appeal by not timely ruling on his motions. Huntington maintains the court correctly granted summary judgment because it urges the Fair Debt Collection Practices Act does not apply to creditors, and it is entitled to judgment as a matter of law on its claim for payment on Metzenbaum's account. The issues before us, then are whether the trial court correctly granted summary judgment to Huntington in this case and correctly denied Metzenbaum relief on his counterclaim. Civ. R. 56 provides in part: * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Civ.R. 56(E) provides in relevant part: * * * 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 his pleadings, but his 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 he does not so respond, summary judgment, if appropriate, shall be entered against him. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the court stated -5- at 293: * * * a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. * * * If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden * * * to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. A review of the record in this case indicates that Huntington supported its motion for summary judgment with an affidavit from Jeff Rohrs, its records custodian, in connection with records of Metzenbaum's account; Metzenbaum failed to set forth sufficient facts to show a genuine issue for trial, and therefore, because Metzenbaum failed to satisfy his burden under Dresher v. Burt, supra, the court did not err in granting summary judgment in favor of Huntington. Metzenbaum predicated his counterclaim on allegations that Huntington violated the FDCPA. Regarding Metzenbaum's counter- claim, we recognize that the Fair Debt Collection Practices Act is a federal statute codified at 15 U.S.C. 1692. The FDCPA makes it unlawful for debt collectors to use abusive tactics while collecting debts for others. The FDCPA defines a debt collector in 15 U.S.C. 1692a(6) as: -6- * * * any person * * * who regularly collects or attempts to collect * * * debts owed or due or asserted to be owed or due another. * * * The Act further provides in 15 U.S.C. 1692a(6)(G) that the term debt collector does not include: any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity * * * concerns a debt which was originated by such person. As the court noted in Perry v. Stewart Title Co., (C.A.5, 1985), 756 F.2d 1197, at 1208, The legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer's creditors * * * . Thus, actual creditors- -the extenders of credit or bona fide assignees--generally are not subject to the Act. Meads v. Citicorp Credit Services, Inc. (S.D.Ga. 1988), 686 F.Supp. 330, at 333. Since Huntington is not a debt collector, it cannot be subject to the requirements under the Act, and these allegations cannot serve as a basis for a judgment in Metzenbaum's favor. Thus, Huntington is entitled to judgment as a matter of law on his counterclaim, and the court did not err in granting judgment in favor of Huntington. Therefore, Metzenbaum's first assignment of error is without merit. Furthermore, because Huntington is not subject to the provisions of the FDCPA, any alleged error by the court in allowing Huntington to depose Metzenbaum in violation of the Act, is inapplicable as well. Thus, Metzenbaum's second assignment of error is also without merit. Finally, regarding Metzenbaum's third assignment of error, he -7- has failed to establish he suffered any prejudice as a result of the court's delay in ruling on his claim motion, because after Metzenbaum obtained a final appealable order, this court fully considered the matter on appeal. Because Metzenbaum failed to satisfy his burden under Dresher v. Burt, supra, the court did not err in granting summary judgment in favor of the Huntington Bank. Accordingly, Metzenbaum's assignments of error are without merit and the judgment of the common pleas court is affirmed. Judgment affirmed. -8- It is ordered that appellee recover of appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. KENNETH A. ROCCO, J., and JAMES D. SWEENEY, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .