Discover Bank v. Smith

[Cite as Discover Bank v. Smith, 2026-Ohio-3501.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY Discover Bank Court of Appeals No. E-25-058 Appellee Trial Court No. 2025 CV 0041 v. Shardaye Smith DECISION AND JUDGMENT Appellant Decided: September 4, 2026 ***** Roy J. Schechter, for appellee. Shardaye Smith, pro se, appellant. ***** OSOWIK, J. Procedural History  {¶ 1} Appellee, Discover Bank (Discover), commenced this action on August 27, 2024, by filing a Complaint in the Sandusky Municipal Court, alleging that appellant, Shardaye Smith, defaulted under the terms of her Agreement and failed to pay the balance due on her Discover Credit Card in the amount of $3,761.54. {¶ 2} On October 25, 2024, Smith filed a Motion to Dismiss for Lack of Standing. {¶ 3} On January 22, 2025, Discover filed a Motion for Summary Judgment on its Complaint. {¶ 4} On January 28, 2025, Smith filed an Answer and a Counterclaim against Discover, claiming the Complaint failed to provide sufficient documentation to establish its standing and further alleging violations of the Ohio Consumer Sales Practices Act, Defamation, Negligent Misrepresentation, Intentional Infliction of Emotional Distress, Abuse of Process Violation of Ohio Rule of Civil Procedure 4(E) and the Fifth Amendment. Smith claimed damages in the amount of $125,00 on her counterclaims. {¶ 5} As a result of the counterclaim, the Sandusky Municipal Court transferred the entire case to the Erie County Court of Common Pleas. {¶ 6} On July 7, 2025, the Court of Common Pleas issued a judgment entry, ruling on the numerous pending motions. The court denied Smith’s Motion to Dismiss for Failure of Service; denied Smith’s Motion to Dismiss Based on Lack of Standing; denied Smith’s Motion to Strike Discover’s Reply to Counterclaim and denied Smith’s Motion to Compel Discovery, noting that Discover had already responded. 2.  {¶ 7} The Court also granted Discover’s Motion to Find Smith engaged in Frivolous Conduct, finding her Motion to Compel and Motion to Strike were not justified and that there was no basis to file a pleading called “Response” after Discover filed a Reply to the Counterclaim. {¶ 8} On November 7, 2025, the Court also granted Discover’s Motion for Summary Judgment on its Complaint issuing extensive enumerated concise findings of fact and conclusions of law. Ultimately, the counterclaim was dismissed in its entirety. {¶ 9} Appellant appeals from the Judgment Entry of November 7, 2025, with a stated intention to focus on three issues: The Judgment Entry Granting Plaintiff’s Motion for Summary Judgment on Defendant’s Counterclaim; The Judgment Entry Denying her Motion for Sanctions and the Judgment Entry Denying her Motion to Compel. Assignments of Error {¶ 10} Despite her stated issues concerning the dismissal of her Counterclaim, her Motion for Sanctions and her Motion to Compel, Smith’s assignments of error focus on the Discover’s Motion for Summary Judgment on its Complaint. Smith sets forth three assignments of error in that respect for our review: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGEMENT WHERE PLAINTIFF FAILED TO PRODUCE ADMISSIBLE EVIDENCE ESTABLISHING THE ALLEGED DEBT. {¶ 11} Appellant argues that the affidavit submitted by Discover in support of its motion for summary judgment fails to establish personal knowledge as required 3. under Civ.R.56(E). More specifically, Smith argues that the affidavit fails to explain who created the records, how the records were created, whether the affiant personally reviewed the original records or how the balance was calculated. Smith also claims that the affidavit improperly authenticates the attached affidavits, making the affidavit not admissible. Standard of Review {¶ 12} Appellate review of a summary judgment is de novo, Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996), employing the same standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129 (9th Dist. 1989). The motion may be granted only when it is demonstrated: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67 (1978), Civ.R. 56(C). {¶ 13} When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings but must respond with specific facts showing that there is a genuine issue of material fact. Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79 (1984). Apple-Chamberlain v. Apple, 2025-Ohio-5388, ¶ 21-22, (6th Dist.), appeal not allowed, 2026-Ohio-1092. 4.  Analysis {¶ 14} As evidence that purchases were made on Smith’s Discover credit card and that indebtedness was owed to Discover, the bank submitted the affidavit of Robert Adkins (Exhibit B), which specifically incorporated Exhibits A and C. His affidavit indicates that he is employed by Discover Bank as a Litigation Specialist. He specifically averred that he had reviewed the bank's records that had been specifically prepared in this case against Shardaye Smith. He attested that her account was in default by failing to make the required payments as they became due and owing and that the amount due and owing at the time of the filing of the motion for summary judgment was $3,761.54, plus costs. He also concluded by attesting that the attached exhibits were true and accurate copies of the documents. {¶ 15} Unless controverted by other evidence, a specific averment that an affidavit is made upon personal knowledge of the affiant satisfies the Civ.R. 56(E) requirement that the affiant must be competent to testify to the matters stated. HSBC Mtge. Servs., Inc. v. Edmon,, 2012–Ohio–4990, ¶ 13, (6th Dist). Additionally, verification of documents attached to an affidavit in support of a motion for summary judgment may be accomplished by an appropriate averment in the affidavit that the documents are, for example, “true and correct copies.” Id. Smith’s response to the Motion for Summary Judgment and the use of Random Meaningless Caselaw Citations 5.  {¶ 16} Smith brings this appeal pro se, without apparent assistance of counsel. However, Ohio courts recognize that pro se litigants are expected to abide by the relevant rules of procedure and substantive laws, regardless of their familiarity with them, to the same extent as an attorney and must accept the results of their own mistakes and errors. Alselaim v. Ahreshien, 2023-Ohio-2420, ¶ 26 (6th Dist). {¶ 17} Mindful that Smith has, presumably, been without counsel since the outset of these proceedings, we are nevertheless troubled by her seemingly random use of irrelevant cases and improper citations when she responded to the appellee’s motion for summary judgment in the trial court. {¶ 18} In the trial court, Smith responded by citing to three cases in her “Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment”. One case is Wright v. Suzuki Motor Corp., 138 Ohio App.3d 165 (2000). In our research, we have found the closest citation to be Kraus v. Maurer, 138 Ohio App.3d 163( 8th Dist. 2000). Further, we have been unable to find any citation involving “Wright v. Suzuki Motor Corp” from the year 2000 that would be of any relevance to this proceeding. {¶ 19} Smith also cited to U.S. Bank, N.A. v. Adams, 6th Dist. Lucas No. L-15- 1030, 2016-Ohio-490. That citation belongs to State v. Whitfield, a case originating from the Eighth District Court of Appeals and of no relevance to this case. Further, L-15-1030 is a reference to In re B.L.,L.L., properly cited as 2016-Ohio-738 (6th Dist.) and also of no relevance to this case. Smith may have been referencing U.S. Bank, Natl. Assn. v. Adams, 2012-Ohio-6253 (6th Dist.) but we will not speculate. 6.  {¶ 20} Finally, Smith also cited State v. Glenn, 2018-Ohio-4250. That citation belongs to State v. Heater, 2018-Ohio-4250 (9th Dist.) and is of no relevance to this case. We could find no case captioned “State v. Glenn” published in 2018 that could be of any relevance to this case. {¶ 21} Of significance, Smith presented no contrary affidavit or evidence in the trial court to refute any of the facts contained in the affidavit and attached documents filed in Discover’s Motion for Summary Judgment. {¶ 22} In our view, the nature of the facts stated in Adkins’s affidavit, combined with his identity as revealed through the position he holds at Discover, creates a reasonable inference that Adkins has personal knowledge of the facts contained in his affidavit. As noted, Adkins also outright swore that the exhibits were true and accurate copies of the documents. Thus, the Adkins affidavit was sufficient to establish that he had personal knowledge of the matters relevant to this case. See Bank of Am. v. Lynch, 2014-Ohio-3586 (8th Dist.). {¶ 23} In her appeal to this court, Smith cites the Wachovia Bank case to support her position that the Adkins affidavit is inadmissible. As for the decision of the Fifth District Court of Appeals in Wachovia Bank of Delaware, N.A., 2011-Ohio-3202, at ¶ 46, 49, we have repeatedly cited this case as authority in mortgage foreclosure cases only. {¶ 24} Specifically, to properly support a motion for summary judgment in a foreclosure action, a plaintiff must present evidentiary-quality materials showing: (1) the movant is the holder of the note and mortgage, or is a party entitled to enforce the 7. instrument; (2) if the movant is not the original mortgagee, the chain of assignments and transfers; (3) the mortgagor is in default; (4) all conditions precedent have been met; and (5) the amount of principal and interest due. Deutsche Bank Nat'l Tr. Co. for Holders of Morgan Stanley ABS Cap. I Inc. v. Eversole, 2017-Ohio-1217, ¶ 11 (6th Dist.), citing U.S. Bank, N.A. v. Coffey, 2012–Ohio–721, ¶ 26 (6th Dist.), citing Wachovia Bank of Del., N.A. v. Jackson, 2011–Ohio–3203, ¶ 40–45 (5th Dist.). CitiMortgage, Inc. v. Teofilo, 2016–Ohio–334, ¶ 11 (6th Dist.). {¶ 25} In this case, the Adkins affidavit establishes that Discover is entitled to enforce the indebtedness on the credit card, that Smith is in default and the amount of principal and interest that is due. Thus, there is no triable issue relating to Adkins’s personal knowledge in this matter. Accordingly, Smith’s first assignment of error is found not well-taken and it is denied. {¶ 26} In Smith’s second assignment of error, she presents the following: II. THE AFFIDAVIT FAILED TO COMPLY WITH CIV.R.56(E) AND MIRRORS THE DEFECTIVE AFFIDAVIT FOUND IN DISCOVER BANK v. HINDERS. {¶ 27} In Discover Bank v. Hinders, 2026-Ohio-483(2D Dist.) the court held that all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit. To properly incorporate attached evidentiary exhibits, the affidavit must state “that the attached materials are true copies and reproductions of the original documents.” Id. at ¶ 20. 8.  {¶ 28} This case is factually distinguishable from Hinders. In this case, Adkins’ affidavit clearly states the attached Exhibits A and C were “true and accurate copy of the purported document.” Further, in contrast with the facts of Hinders, the attached exhibits include the periodic and final statements of the credit card. {¶ 29} Nevertheless, Smith further maintains that there remains a dispute of fact concerning the balance on the credit card. However, she misconstrues the “New Balance of $0.00” on the statements. The statements obviously indicate that there was in “Internal Charge-off of $3,761.54.” Smith has provided no response to dispute the balance owed on her Discover credit card. {¶ 30} For the forgoing reasons, appellant's second assignment of error is overruled. {¶ 31} As for Smith’s third assignment of error, she presents the following: III. PLAINTIFF FAILED TO ESTABLISH CONTRACT FORMATION, DAMAGES, OR STANDING AS THE REAL PARTY IN INTEREST. Action on Account {¶ 32} The Complaint brought against Smith is an action on an account. Although founded in contract, an action on an account exists only as to the balance that may be due one of the parties as a result of a series of transactions. Citibank (South Dakota) N.A. v. Lesnick, 2006-Ohio-1448, ¶ 8 (11th Dist.), citing Am. Sec. Serv., Inc. v. Baumann, 32 Ohio App.2d 237, 242 (10th Dist. 1972). 9.  {¶ 33} This court has held that a prima facie case for an action on an account requires the plaintiff to affirmatively establish the following: An account must show the name of the party charged and contain: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum); (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items which permits the calculation of the amount claimed to be due. Avita Health Sys. v. Robertson, 2024-Ohio-1619, ¶ 17 (6th Dist.), citing Midland Funding LLC v. Coleman, 2019-Ohio-432, ¶ 15 (6th Dist.). {¶ 34} An action upon an account may be proved by the introduction of business records showing the existence of the account. Hinders, supra, quoting Wolf Automotive v. Rally Auto Parts, Inc., 95 Ohio App.3d 130, 137 (10th Dist. 1994). {¶ 35} The Adkins affidavit, in addition to the attached Exhibits A and C, is sufficient to establish an account stated, including the amount owed by Smith. Again, Smith presented nothing to dispute the facts alleged in the Adkins affidavit and attached exhibits. Standing {¶ 36} Smith further claims that appellee Capital One, N.A., failed to establish standing. However, the record reflects that on July 23, 2025, appellee filed a “Plaintiff’s Notice of Merger” with an attached statement from Jason Almonte, Director for Large Bank Licensing, of the Office of the Comptroller of the Currency. That exhibit states that 10. it is an official certification of the Comptroller of the Currency that acknowledges the merger of Discover Bank into Capital One, effective May 18, 2025. The relevant section of the United States Code 12 U.S.C. 215a states in relevant part: (e) Status of receiving association; property rights and interests vested and held as fiduciary. The corporate existence of each of the merging banks or banking associations participating in such merger shall be merged into and continued in the receiving association and such receiving association shall be deemed to be the same corporation as each bank or banking association participating in the merger. All rights, franchises, and interests of the individual merging banks or banking associations in and to every type of property (real, personal, and mixed) and choses in action shall be transferred to and vested in the receiving association by virtue of such merger without any deed or other transfer. 12 U.S.C.A. § 215a. {¶ 37} Thus, by virtue of the operation of this federal statute, appellee has established standing in this case. {¶ 38} Upon consideration of appellant’s arguments, Smith’s third assignment of error is found not well-taken and is denied. Conclusion {¶ 39} For the foregoing reasons, the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal under App.R. 24. Judgment affirmed A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4. 11.  Discover Bank v. Shardaye Smith Court of Appeals No. {22}E-25-058 Trial Court No. 2025 CV 0041 Thomas J. Osowik, P.J. JUDGE Myron C. Duhart, J JUDGE Charles Sulek, J CONCUR. JUDGE This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/. 12.