COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78601 DAVE GARCIA, et al. : : Plaintiffs-appellants : : JOURNAL ENTRY vs. : and : OPINION HUNTINGTON BANK : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : JULY 5, 2001 CHARACTER OF PROCEEDING : Civil appeal from : Cuyahoga County : Common Pleas Court : Case No. 396,758 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: THOMAS P. ALDRICH, III Attorney at Law 5247 Oakmont Drive Lyndhurst, OH 44124-2722 For defendant-appellee: ROBERT G. MILLER Attorney at Law Strachan, Miller, Olender & Roessler Co., L.P.A. 1940 Huntington Building 925 Euclid Avenue Cleveland, OH 44115 -2- KENNETH A. ROCCO, P.J.: Appellants Dave and Jean Garcia ( the Garcias ) appeal from the entry of summary judgment against them in the common pleas court. They urge: I. THE TRIAL COURT ERRED IN GRANTING A SUM- MARY JUDGMENT FOR APPELLEE WHILE A DIS- PUTE IN MATERIAL FACTS EXISTED BETWEEN THE PARTIES. II. WHETHER THE TRIAL COURT ERRED IN NOT FINDING THAT APPELLANTS WERE DAMAGED BY APPELLEE. We find no error in the trial court's ruling and affirm its judgment. PROCEDURAL HISTORY The complaint filed November 16, 1999 alleged that the Garcias had previously entered into a settlement agreement with appellee Huntington Bank ( Huntington ) to resolve a lawsuit Huntington had filed to collect upon an automobile loan. According to the com- plaint, as part of the settlement, Huntington agreed to clear Plaintiffs' credit record with regard to the purchase and financing of the aforementioned auto. The Garcias claimed that Huntington failed to comply with this obligation and also asserted Huntington had defrauded them because it did not intend to comply with this obligation when it entered into the settlement agreement. They demanded $10,000 in damages, injunctive relief requiring Huntington -3- to clear their credit record with the three major credit reporting agencies, punitive damages, costs and attorney fees. Huntington moved for summary judgment on May 25, 2000. It attached portions of the Garcias' depositions and answers to interrogatories as well as exhibits and a copy of a Trans Union Credit Report as of December 30, 1999. The evidence attached to Huntington's motion showed that the terms of the settlement agreement required Huntington to use its best efforts to inform the applicable credit reporting agencies that the loan referenced in the Lawsuit, including but not limited to its status and its repayment history, should no longer appear on any credit reports relating to the Garcias. In his deposition, Dave Garcia admitted that, with one exception, he did not know what efforts Huntington had made to comply with this contractual duty. Jean Garcia said she had no additional evidence. Furthermore, while the Garcias were denied credit after this agreement was executed, the Huntington item was not the only negative one on their credit report, and none of the lenders specifically identi- fied the Huntington item as the reason for the denial in the let- ters they sent. In his deposition, Dave Garcia conceded that the only evidence he had of fraud was the settlement agreement itself and a credit report from July 20, 1999, which included a negative report on the Huntington debt, indicating that Huntington had not, in fact, complied with its contractual duties. -4- In opposition to Huntington's motion, the Garcias submitted (1) a copy of the settlement agreement, (2) copies of correspon- dence from the Garcias' counsel to Huntington demanding that Huntington clear the Garcias' credit record, (3) copies of the Garcias' Trans Union credit reports from December 21, 1998 and July 20, 1999 which listed the Huntington debt, (4) a copy of a letter from Huntington's counsel to the Garcias' attorney dated June 21, 1999, enclosing a copy of a form Huntington allegedly provided to the credit reporting agencies, (5) parts of Huntington's answers to interrogatories and responses to the Garcias' request for produc- tion of documents, which showed that Huntington was unable to locate any correspondence with plaintiffs or the credit reporting agencies and assumed these documents had been destroyed pursuant to R.C. 1109.69, and (6) the Garcias' affidavits. Among other things, the Garcias' affidavits averred that when they refinanced their mortgage in March 1999, they were told that their interest rate was 1/% higher than it would have been if not for the Huntington Bank debt. On August 22, 2000, the trial court entered judgment as follows: After review of all documents submitted to Court, Defendant Huntington Bank's Motion for Summary Judgment (filed 5/25/00) is granted as to all claims. Final. Trial of 8/21/00 canceled. Both counsel notified via telephone 8/16/00. The Garcias timely filed this appeal on September 20, 2000. LAW AND ANALYSIS -5- Both of the Garcias' assignments of error assert that the court erred by entering summary judgment against them. We review the trial court's ruling on summary judgment de novo, applying the same standard the trial court was required to apply. Hillyer v. State Farm Mut. Auto Ins. Co. (1999), 131 Ohio St.3d 172, 175; Weiland v. Benton (1996), 108 Ohio App.3d 512, 518. In their first assignment of error, the Garcias contend that the evidence they submitted in opposition to Huntington's motion demonstrated that there were genuine issues of material fact for trial. First, they claim that the settlement agreement requiring Huntington to use its best efforts to clear the Garcias' credit, combined with the credit report showing that the Huntington debt was still listed as a negative credit reference more than two years later, demonstrates that Huntington failed to comply with its contractual obligations. They further argue that their affidavits demonstrated they were damaged by this failure because they were forced to pay higher interest rates than they otherwise would have paid. Neither of these arguments addresses the fraud claim, so we affirm the summary judgment for Huntington on that claim. Huntington agreed to use its best efforts to inform the credit reporting agencies that this loan should not appear on any credit reports concerning the Garcias. The fact that the item continued to appear on the report of one credit reporting agency is ambigu- ous, but it is some evidence that Huntington failed to inform that agency that the item should be removed. (Alternatively, it could -6- mean that that credit reporting agency failed to act upon the information Huntington provided.) In any case, however, there was no evidence that the Garcias were injured. The portions of the Garcias' affidavits averring that the interest rates they paid were higher than they would have been if the Huntington debt had been removed are insufficient to create a genuine issue of material fact because there is no evidence to show how the Garcias knew that they had to pay a higher rate. Affidavits submitted on summary judgment must be made on personal knowledge, i.e., `knowledge of the truth in regard to a particular fact or allegation, which is original, and does not depend on information or hearsay.' Brookwood Inn, Inc. v. Brook Park (June 1, 2000), Cuyahoga App. No. 76200, unreported (quoting Black's Law Dictionary [6th Ed. 1990] 604); Civ.R. 56(E); also see Evid.R. 602. Moreover, the single paragraph asserting that the Garcias were told that they would have qualified for a lower interest rate on their refinanced mortgage but for the Huntington debt is inadmissible hearsay which the court was not required to consider. Felker v. Schwenke (1998), 129 Ohio App.3d 427, 431. Because there was no evidence that the Garcias were damaged by Huntington's conduct, summary judgment for Huntington was appropri- ate. Therefore, the first assignment of error is overruled. The Garcias' second assignment of error urges that the court erred by finding they suffered no damages. We disagree. First, in their depositions, the Garcias conceded that none of the letters they received from persons denying them credit stated that the -7- reason for their refusal was the negative reference to the Huntington item in the credit report. The Garcias admitted they had no other evidence that this was the reason they were refused credit. The Garcias' affidavits averred that they would have gotten lower interest rates but for the negative credit report regarding the Huntington item, but these averments were not based upon the Garcias' personal knowledge. Therefore, the affidavits were not evidence upon which the court could rely in determining whether there was a genuine issue of material fact for trial. Accordingly, we overrule the second assignment of error. Affirmed. -8- It is ordered that appellee recover of appellants its 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 Cuyahoga County Court of Common Pleas 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. MICHAEL J. CORRIGAN, J. and COLLEEN CONWAY COONEY, J. CONCUR PRESIDING JUDGE KENNETH A. ROCCO 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .