Nat'l Collegiate Student Loan Trust 2005-3 v. Dunlap

115 N.E.3d 689, 2018 Ohio 2701
CourtCourt of Appeals of Ohio, Fourth District, Ross County
DecidedJune 27, 2018
DocketNo. 17CA3611
StatusPublished
Cited by7 cases

This text of 115 N.E.3d 689 (Nat'l Collegiate Student Loan Trust 2005-3 v. Dunlap) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Fourth District, Ross County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nat'l Collegiate Student Loan Trust 2005-3 v. Dunlap, 115 N.E.3d 689, 2018 Ohio 2701 (Ohio Super. Ct. 2018).

Opinion

Harsha, J.

*691{¶ 1} David Dunlap II appeals from the summary judgment in favor of National Collegiate Student Loan Trust 2005-3 ("NCSLT") on a student loan he co-signed and in favor of NCSLT on his counterclaims against NCSLT. Dunlap asserts that the trial court erred in granting summary judgment and not dismissing the case because NCSLT lacked standing to collect on the debt.

{¶ 2} However, NCSLT submitted an affidavit of an employee of the subservicer of the loan, with attached documentation, showing that the original lender transferred the loan to another entity, which in turn transferred it to NCSLT before the loan was in default. This evidence also established that there had been no payment on the loan since March 2011, it was in default, and that absent a viable defense, Dunlap owed the principal sum of $28,603.21, plus accrued interest of $5,830.37 as of March 2017. The employee of the subservicer was competent and the documentation attached to his affidavit was admissible as business records. Although NCSLT's amended complaint erroneously referred to an incorrect date for the loan, the error was corrected by its motion to amend its amended complaint to include the correct date.

{¶ 3} Moreover, Dunlap's defense that he paid the obligation was meritless. The $30,000 promissory note he executed and mailed to the entity that demanded payment of the loan did not suspend his obligation under R.C. 1303.39(B) because there was no evidence that NCSLT had "taken" the note for the underlying loan obligation. Based on these circumstances, the trial court did not err in granting summary judgment in favor of NCSLT on its claim.

{¶ 4} In addition, the trial court properly granted summary judgment in favor of NCSLT on Dunlap's counterclaims asserting that NCSLT was required to have a license to transact business in Ohio and was subject to the Fair Debt Collection Practices Act ("FCDPA"), 15 U.S.C. 1692 et seq. Dunlap did not contest this part of the summary judgment in his initial brief and we need not consider the attempt in his reply brief to argue that his counterclaims had merit.

{¶ 5} Next Dunlap contends that the trial court erred by failing to issue findings of fact and conclusions of law on its judgment granting for summary judgment to NCSLT. We reject his contention because findings of fact and conclusions of law are unnecessary for rulings on motions for summary judgment.

{¶ 6} Dunlap also claims that the trial court's entry of summary judgment for NCSLT violated his right to a jury trial. We reject Dunlap's claim because the proper entry of summary judgment does not violate an individual's right to a jury trial.

{¶ 7} Next Dunlap argues that the trial court judge erred by denying the motion to recuse himself because of his personal bias or prejudice against Dunlap. But we lack jurisdiction to consider the trial court judge's failure to recuse himself when Dunlap could have-and did-file a timely affidavit of disqualification with the Chief Justice of the Supreme Court to resolve his claims.

{¶ 8} Finally, Dunlap asserts that the trial court committed reversible error by ruling on various motions before he had the opportunity to respond, rendering the court's subsequent entry of summary judgment void. We agree it appears that under the civil rules of procedure and the local rules of the trial court, the trial court ruled *692on certain motions before Dunlap had the opportunity to respond. But because he was given the opportunity to respond to NCSLT's motion for summary judgment, the trial court's judgment was not void or violative of his right to due process. He has not established that the trial court's error prejudiced his right to defend against summary judgment.

{¶ 9} Therefore, we find no error by the trial court in granting NCSLT's motion for summary judgment on its claim and Dunlap's counterclaims. We overrule Dunlap's assignments of error and affirm the court's judgment.

I. FACTS

{¶ 10} In an amended complaint NCSLT sought to recover the amount due on a July 2005 defaulted college loan that Dunlap co-signed. After Dunlap filed an answer and counterclaims, he filed motions for summary judgment and to dismiss NCSLT's complaint, claiming that NCSLT lacked standing to collect on the loan because it had not established a proper assignment from the original lender, but the trial court denied the motions.

{¶ 11} Dunlap also filed an emergency motion asking the trial judge to recuse himself based on bias and prejudice. After the judge denied the motion, Dunlap filed an affidavit of disqualification in the Supreme Court of Ohio, raising the same claims of bias and prejudice. The Chief Justice declined to disqualify the trial judge.

{¶ 12} NCSLT filed a motion for summary judgment, supported by an affidavit of an employee of the subservicer of the student loan, which is the designated custodian of records for the loan. NCSLT also included documentation attempting to establish NCSLT's standing to collect on the loan, the loan default, and the amount due on the loan. Dunlap filed a response supported by his affidavit and documentation purporting to establish that he had paid off the loan by tendering a $30,000 promissory note to the entity that had sent him demand letters for payment. The trial court granted NCSLT's motion for summary judgment and awarded it $34,433.58 plus interest against Dunlap; it also entered summary judgment in NCSLT's favor on Dunlap's counterclaims. Other facts will appear under the assignments of error.

II. ASSIGNMENTS OF ERROR

{¶ 13} Dunlap assigns the following errors for our review:

1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE PREJUDICE OF APPELLANT, DAVID DUNLAP II ("DUNLAP") IN RULING ON APPELLEE, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-3 ("NCSLT") MOTION FOR LEAVE TO RESPOND TO COUNTERCLAIM AND DISCOVERY BY MAY 20, 2016, DUNLAP'S MOTION TO DISMISS AMENDED COMPLAINT, AND NCSLT'S MOTION TO AMEND BY INTERLINEATION, BECAUSE THE COURT RULED ON THESE MOTIONS WITHOUT AFFORDING DUNLAP THE OPPORTUNITY TO BE HEARD VIOLATING DUNLAP'S DUE PROCESS RIGHT TO BE HEARD, CONTRARY TO THE PROTECTIONS OF THE U.S. CONSTITUTION, OHIO CONSTITUTION, JUD. COND., AND THE OATH OF OFFICE OF JUDGE MICHAEL ATER.
2. THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE PREJUDICE OF APPELLANT, DUNLAP IN GRANTING
*693SUMMARY JUDGMENT TO NCSLT, BECAUSE NO EVIDENCE EXISTS TO ESTABLISH NCSLT AS A PARTY TO THE ALLEGED NOTE OF THE SECOND AMENDED COMPLAINT AND HAVING AUTHORITY TO BRING THIS CASE BEFORE THE TRIAL COURT AND LACKING STANDING, CONTRARY TO CIV.R. 10, CIV.R. 56 AND EVID.R. 401, EVID.R. 402.
3.

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Bluebook (online)
115 N.E.3d 689, 2018 Ohio 2701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/natl-collegiate-student-loan-trust-2005-3-v-dunlap-ohctapp4ross-2018.