Home Bank, F.S.B. v. Daniel T. Pauer
| Decision Date | 19 February 1998 |
| Docket Number | 72242,98-LW-1604 |
| Parties | HOME BANK, F.S.B., Plaintiff-appellee v. DANIEL T. PAUER, Defendant-appellant CASE |
| Court | Ohio Court of Appeals |
Civil appeal from Cleveland Municipal Court, Case No 96-CVF-0002471.
For plaintiff-appellee: BRENDAN DELAY, Attorney at Law, 323 Lakeside Avenue, W., Suite 450, Cleveland, Ohio 44113.
For defendant-appellant: DANIEL T. PAUER, pro se, 7060 Brook Lane
Chesterland Ohio 44026.
In this action originally brought by plaintiff-appellee Home Bank, F.S.B. on a claim of unjust enrichment against defendant-appellant Daniel T. Pauer, appellant appeals from several trial court orders in favor of appellees Home Bank and Nancy Czupik. The trial court denied appellant's motions for default judgment, to compel discovery, for sanctions, and for summary judgment on the complaint however, it granted appellees' motions for a protective order and for summary judgment on both the complaint and appellant's counterclaims.
Appellant contends the trial court's orders were improper. Appellant further contends the trial court lacked jurisdiction over the subject matter of the action. This court has reviewed the record, finds the relevant trial court orders were appropriate and, therefore, affirms those orders.
In July 1995, appellant was a customer of appellee Home Bank, where he held both a personal checking account and a savings account through the union to which he belonged. The record reflects that late in the work day of July 17, 1995, Donna Hubany, General Ledger Analyst for Home Bank, received two wire transfers from other banking institutions. One of the wire transfers was in the amount of $225 and was for appellant from his daughter in New York. The other wire transfer was in the amount of $4800 and was to Home Bank for the payment of a mortgage from one of its other customers.
The following day, Ms. Hubany prepared a deposit slip, placed appellant's name and checking account number on it, and listed the amount of the deposit as "$4800,"[1] noting it was "per wire transfer." That same day, appellant telephoned Home Bank to request information as to the wire transfer from his daughter. Appellant spoke to Melissa Nero. Appellant asked if the $225 "was in his account yet." Ms. Nero informed appellant that although a wire transfer had been received, it was in the amount of $4800, not $225. Appellant Expressed surpriser and "indicated that he would telephone his daughter" about the matter. Subsequently, the wire transfer in the amount of $225 was also deposited in appellant's account.
The following day, appellant withdrew $4600 in cash from the account. A check appellant had previously written was honored that day, leaving a balance of $18.26 in his account.
On July 24, 1995, when Hubany conducted her weekly account balancing procedure, she noted the error she had made with regard to the wire transfer to appellant's account. Hubany corrected the error by reversing the deposit of $4800 and then informing Donna Callahan, Home Bank's Assistant Collection Administrator, of the situation.
On July 25, 1995, since Callahan had difficulty in reaching appellant by telephone, she requested a credit report on appellant in order to verify both appellant's home address and his home and business telephone numbers. That same day, Callahan drafted a letter to appellant. The letter informed appellant of the deposit error, noted his withdrawal of a large portion of that amount, requested a return to Home Bank of the funds to which appellant was not entitled, and further requested appellant to contact Callahan immediately regarding the matter. Callahan mailed the letter to appellant's home address.
Two days later, Callahan still had been unsuccessful in reaching appellant. She therefore engaged Metro Mortgage Services to leave a "tag message" on the front door of appellant's residence. She also informed Home Bank's General Counsel/Corporate Secretary, appellee Nancy Czupik, about the matter.
On August 9, 1995, Czupik drafted a letter to appellant demanding repayment of the funds. She gave the letter to Metro Mortgage Services for delivery. Metro Mortgage Services sent its employee, Alfred Henderson, to deliver the letter. Thereafter, Henderson appeared with the letter at appellant's house. Appellant observed Henderson for some time from inside the home before Henderson finally deposited the letter inside appellant's garage. By August 26, 1995, the original letter sent to appellant was returned to Home Bank by the postal service as "unclaimed." Appellant made no response to any of Home Bank's efforts to contact him.
On November 30, 1995, Home Bank withdrew the total amount of appellant's balance from his union savings account, viz., $781.98, as a "set off" against the $4600 amount appellant had withdrawn from his checking account.[2]
On February 2, 1996, Home Bank filed a complaint against appellant in the Cleveland Municipal Court. Home Bank averred the following: 1) appellant had been unjustly enriched by the error made to his checking account; 2) Home Bank had made a demand upon appellant for return of the funds; and 3) after "set off" from funds in appellant's other accounts, appellant owed Home Bank $3,762.74. Home Bank attached to its complaint a copy of the demand letter sent by Czupik to appellant and Henderson's affidavit, in which Henderson stated that in his capacity as a Certified Service Processor" who was "employed by Reporters, Etc.," he delivered Czupik's letter on August 13, 1995.
On April 2, 1996, two months after the complaint was filed, appellant filed a request for "twenty-eight days" in which to file a responsive pleading to it.
On May 2, 1996, appellant filed an answer in which he denied all the allegations of the complaint, asserted the allegations were invalid for Home Bank's failure to attach any "accounting" documents, and raised several affirmative defenses, including improper venue. In the same pleading, appellant also set forth a counterclaim against Home Bank, Nancy Czupik, both in her capacity as Corporate Counsel and individually, and Alfred Henderson.
Appellant's first count of his counterclaim was against Home Bank for the "unlawful acts" of its "agent," Alfred Henderson, including "trespass, invasion of property, seizure of property, assault, intentional infliction of emotional distress, negligent infliction of emotional distress, unlawful entering * * * and invasion of privacy." Appellant also asserted in a second count a cause of action against Home Bank for breach of "contractual agreement" for its "negligence in failing to notify [appellant] of any [checking account] errors * * * in a reasonable and timely manner."
In the third count of his counterclaim, appellant alleged Czupik had "converted" funds from his union account. In the fourth, appellant alleged the "credit search" conducted by Home Bank's employee violated the Fair Credit Reporting and the Equal Opportunity Credit Acts.
Finally, appellant claimed his wife was "denied access to her checking account" by appellees' acts, which violated the federal Fair Debt Collection and Privacy Acts. Appellant attached to his pleading copies of his July and August 1995 checking account statements and his December 1995 and January 1996 union account statements. Appellant also filed a motion to certify the case to the court of common pleas.
On May 14, 1996, appellees filed a brief in opposition to appellant's motion to certify the case. On May 24, 1996, appellant filed his response to appellees' brief.
On May 31, 1996, Home Bank filed a request for leave to file a responsive pleading to the answer and counterclaim within "14 days following the disposition of [appellant's] pending motion to certify this cause of action to the Court of Common Pleas of Cuyahoga County, Ohio." On June 10, 1996, Nancy Czupik filed the same request. Appellees stated the request was submitted in order that they file their answers to appellant's counterclaims "in the court before which it is determined that this [case] shall be heard."
In an entry journalized on June 28, 1996, the trial court denied appellant's motion to certify the case to the court of common pleas. The trial court also journalized an entry granting appellees leave to plead until July 1, 1996.
On July 1, 1996, appellees filed a motion for extension of time, requesting another fourteen days to respond to the counterclaims. The trial court did not rule on this motion. On July 15, 1996, appellees filed a motion to dismiss the first count of appellant's counterclaim. On July 19, 1996, appellees filed a "reply" to appellant's counterclaim in which they denied the pertinent allegations and set forth a list of affirmative defenses.
On July 31, 1996, appellant filed a motion for default judgment on his counterclaim against Home Bank and Czupik. Therein, appellant argued that since the trial court had not issued a journal entry granting appellees' second request for leave to file a responsive pleading, he was entitled to judgment. Appellees responded with a brief in opposition. Discovery then proceeded in the action.
On August 19, 1996, appellees filed a motion for leave to file an amended reply to appellant's counterclaim, which was supported by counsel's affidavit. On August 20, 1996, the trial court granted this motion. Ultimately, on October 8, 1996, following numerous additional filings in the case, the trial court denied appellants motion for default judgment.
On October 28, 1996, appellant filed a motion to compel discovery, alleging Home Bank was providing insufficient and dishonest information in its responses to appellant's discovery requests. Home Bank filed a brief in opposition to appe...
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