[Cite as Credit Acceptance Corp. v. Koher, 2019-Ohio-2727.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

BELMONT COUNTY

CREDIT ACCEPTANCE CORP., 

Plaintiff-Appellee, 

v. 

AARON KOHER, 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 18 BE 0040 

 

Civil Appeal from the 

Court of Belmont County, Western Division of Belmont County, Ohio 

Case No. 17CVF00530W 

BEFORE: 

Gene Donofrio, Cheryl L. Waite, David A. D’Apolito, Judges. 

JUDGMENT: 

Affirmed 

Atty. Yale Levy and Atty. Kathleen Smith, Levy & Associates, LLC., 4645 Executive 

Drive, Columbus, Ohio 43220, for Plaintiff-Appellee and 

Aaron Koher, PRO SE, 4236 Pine Alley, Bellaire, Ohio 43906, for DefendantAppellant. 

 
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Case No. 18 BE 0040

Dated: 

June 28, 2019 

 

Donofrio, J. 

{¶1} Defendant-appellant, Aaron Koher, appeals the Belmont County Court, 

Western Division’s judgment awarding summary judgment on a breach of contract claim 

in favor of plaintiff-appellee, Credit Acceptance Corporation. 

{¶2} On January 8, 2016, appellant purchased a 2006 Ford F150 truck with 

Ohio Motor Group, LLC. Appellant signed a retail installment contract with Ohio Motor 

Group where he agreed to pay a total of $9,014.30 consisting of a down payment of 

$800.00 and 45 monthly payments of $182.54. In the contract, Ohio Motor Group 

assigned its interest to appellee. 

{¶3} According to appellant, two days after he purchased the truck, it became 

completely inoperable. Appellant argues that the truck was defective and refused to make 

any payments on the contract. At some point, the truck was repossessed due to 

appellant’s failure to make payments on the contract. On September 22, 2016, appellee 

sent appellant a notice that the truck was repossessed due to appellant’s failure to make 

payments. 

{¶4} On October 27, 2016, appellee sent appellant a notice to sell the truck at 

a public sale via certified mail. On November 28, 2016, appellee sent appellant a notice 

of disposition of repossessed property. The notice of disposition of repossessed property 

stated appellant owed a deficiency balance of $4,865.31 on the truck. Appellant made 

no payments on the deficiency balance. 

{¶5} On December 22, 2017, appellee filed this action raising a sole breach of 

contract claim and sought the deficiency balance plus interest from September 21, 2016. 

Appellee attached to its complaint: an affidavit from one of its employees attesting to the 

amount owed, appellant’s payment history report, a copy of the retail installment contract, 

a copy of the notice of repossession, a copy of the notice to sell property, and a copy of 

the notice of disposition of repossessed property. Appellant was served notice of this 

action by certified mail. 

{¶6} On January 19, 2018, appellant filed what was construed to be an answer. 

While the answer did not admit or deny the specific allegations in the complaint, appellant 
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Case No. 18 BE 0040

generally indicated that he disputed all of appellee’s allegations. The answer also argued 

that the truck began having problems approximately one hour after leaving Ohio Motor 

Group. Appellant accused Ohio Motor Group of fixing the vehicle to work for only a short 

period of time in order to sell the truck. 

{¶7} On February 12, 2018, appellee sent appellant its first set of 

interrogatories, requests for production of documents, and requests for admission. 

Appellee filed a notice of service of these discovery requests on February 14, 2018. 

{¶8} On April 12, 2018, appellee filed a motion for summary judgment. 

Appellee argued that it was entitled to summary judgment because appellant failed to 

respond to the requests for admission and the requests were admitted by default. With 

the requests for admission now admitted by default, appellee argued that there was no 

genuine issue of material fact regarding its breach of contract claim. Appellee attached 

to its motion a copy of its requests for admission propounded to appellant as well as the 

exhibits that were attached to the complaint. 

{¶9} On April 27, 2018, appellant filed two separate motions. The first was a 

“notice to bring suit.” The second was styled as an opposition to summary judgment. In 

the opposition to summary judgment, appellant generally argued that the facts of the 

action were in dispute. Appellant also argued that he was not properly served notice of 

this action. Appellant attached his responses to appellee’s requests for admission and 

interrogatories to his opposition to summary judgment. 

{¶10} On May 8, 2018, the trial court granted appellee’s motion for summary 

judgment. The trial court held that because appellant failed to timely respond to 

appellee’s discovery requests, the requests for admission were deemed admitted and no 

genuine issue of material fact existed regarding appellee’s breach of contract claim. The 

trial court also held that appellant was properly served because the certified mail return 

receipt was signed and appellant timely filed an answer. 

{¶11} Appellant timely filed a notice of appeal on June 5, 2018. Appellant now 

raises three assignments of error. 

{¶12} Because appellant’s first and second assignments of error raise similar 

arguments, they will be addressed together. Appellant’s first assignment of error states: 
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Case No. 18 BE 0040

 THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING 

THE MOTION FOR SUMMARY JUDGMENT ON MAY 08, 2018. 

{¶13} Appellant’s second assignment of error states: 

 THE PLAINTIFF-APPELLEE WAS NOT ENTITLED TO THE 

SUMMARY JUDGMENT. 

{¶14} Appellant argues that he does not owe any money to appellee because: 

the truck he purchased was defective, he verbally canceled the contract, and the car 

dealership where he purchased the truck is being investigated for fraudulent activities. 

{¶15} An appellate court reviews a trial court’s summary judgment decision de 

novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan v. 

Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. A motion for 

summary judgment is properly granted if the court, upon viewing the evidence in a light 

most favorable to the nonmoving party, determines that: (1) there are no genuine issues 

as to any material facts; (2) the movant is entitled to judgment as a matter of law, and (3) 

the evidence is such that reasonable minds can come to but one conclusion and that 

conclusion is adverse to the opposing party. Civ.R. 56(C); Byrd v. Smith, 110 Ohio St. 

3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10. 

{¶16} “[T]he moving party bears the initial responsibility 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 fact on a material element of the 

nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264 

(1996). The trial court’s decision must be based upon “the pleadings, depositions, 

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and 

written stipulations of fact, if any, timely filed in the action.” Civ.R. 56(C). The nonmoving 

party has the reciprocal burden of specificity and cannot rest on the mere allegations or 

denials in the pleadings. Id. at 293. 

{¶17} In Dresher, the Ohio Supreme Court held that a party who moves for 

summary judgment need not support its motion with affidavits provided that the party does 

not bear the burden of proof on the issues contained in the motion. Dresher at 277. 
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Case No. 18 BE 0040

Further, there is no requirement in Civ.R. 56 that any party submit affidavits to support a 

motion for summary judgment. See, e.g., Civ.R. 56(A) and (B). Id. However, there is a 

requirement that a moving party, in support of a summary judgment motion, specifically 

point to something in the record that comports with the evidentiary materials set forth in 

Civ.R. 56(C). Id. 

{¶18} Summary judgment is appropriate when there is no genuine issue as to 

any material fact. A “material fact” depends on the substantive law of the claim being 

litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d, 598, 603, 662 N.E.2d 

1088 (8th Dist.1995), citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-248, 106 

S.Ct. 2505, 91 L.Ed.2d 202 (1986). 

{¶19} Appellee set forth a sole breach of contract claim. “In order to recover on 

a claim of breach of contract, the plaintiff must prove (1) the existence of a contract, (2) 

performance by the plaintiff, (3) breach by the defendant, and (4) damage or loss to the 

plaintiff.” Price v. Dillon, 7th Dist. Mahoning Nos. 07-MA-75, 07-MA-76, 2008-Ohio-1178, 

¶ 44. 

{¶20} Appellee’s motion for summary judgment contained two exhibits. Exhibit 

B is identified as “additional documents.” One of the documents in Exhibit B is a copy of 

the retail installment contract between appellant and Ohio Motor Group. This contract 

details that appellant was purchasing a Ford F150 truck for a total purchase price of 

$9,014.30. The contract called for appellant to make a down payment of $800.00 and 

monthly payments of $182.54. Page four of the contract states that Ohio Motor Group 

assigned its interest in the contract to appellee. Finally, the contract is electronically 

signed by appellant. Based on these facts, there was a valid contract between appellant 

and Ohio Motor Group and appellee was immediately the successor on Ohio Motor 

Group’s interest on the contract. 

{¶21} As for the second breach of contract element, appellant’s answer in this 

action indicates that he received the truck. Appellant also admitted by default that 

appellee financed the purchase of the truck. Therefore, appellee and Ohio Motor Group 

performed on the contract. 

{¶22} As for the third breach of contract element, Exhibit B of appellee’s motion 

for summary judgment contains an affidavit of accounting from Kristen Fountaine. 
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Case No. 18 BE 0040

Fountaine’s affidavit avers that “Defendant has failed to make one or more payments 

when due.” (Fountaine Aff. ¶ 5[B]). Also part of Exhibit B is appellant’s customer payment 

history report. This report indicates that appellant never made a payment on the truck. 

As such, the element of appellant breaching the contract is met. 

{¶23} As for the fourth breach of contract element, Fountaine’s affidavit also 

avers that after giving credit for all payments, rebates, and set-offs, there remained due 

and owing under the contract $4,865.31 plus interest from September 21, 2016. 

(Fountaine Aff. ¶ 5[C]). As such, the element of loss to the plaintiff is met. 

{¶24} Additionally, Exhibit A of appellee’s motion for summary judgment is a 

copy of the requests for admission appellant failed to timely answer. As appellant failed 

to timely respond, the trial court held that they were admitted by default. These default 

admissions show: appellant had a contract for the purchase of the truck with Ohio Motor 

Group, appellant’s purchase was financed by appellee, appellant breached the terms of 

the contract, and appellant owes $4,865.31. Appellant never filed a motion to amend or 

withdraw his default admissions. Based on the above, appellee put forth sufficient 

evidence to establish that it was entitled to summary judgment on its breach of contract 

claim. 

{¶25} With appellee’s burden satisfied, appellant had a reciprocal burden to 

submit evidence which would create a genuine issue of material fact. 

{¶26} Appellant’s opposition to summary judgment only argued that “[t]he facts 

in this case are now and have always been in dispute.” It did not state with any specificity 

exactly what facts were in dispute. It also had no accompanying exhibits or affidavits 

supporting appellant’s argument that the facts were in dispute. Appellant did attach his 

responses to appellee’s interrogatories and requests for admission but, as previously 

explained, they were untimely and the requests for admission were deemed admitted by 

default. Moreover, self-serving responses to interrogatories, absent further evidentiary 

support, do not create a genuine issue of material fact. White v. Sears, Roebuck & Co., 

10th Dist. Franklin No. 10AP-294, 2011-Ohio-204, ¶ 8-10. 

{¶27} Appellant’s brief in this appeal also argues that summary judgment was 

improper because Ohio Motor Group was potentially engaged in fraudulent business 

practices. Appellant argues that this is evidenced by the fact that the car dealership where 
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Case No. 18 BE 0040

he purchased the truck is now vacant. But appellant did not submit any evidence that 

would indicate Ohio Motor Group engaged in fraudulent business practices and relies 

only on his assertions. A party’s unsupported and self-serving assertions are insufficient 

to overcome a properly supported motion for summary judgment. Nolan v. Hinzey, 7th 

Dist. Belmont Nos. 15 BE 0047, 15 BE 0048, 2016-Ohio-4657, ¶ 56 quoting Telecom 

Acquisition Corp. I v. Lucis Ents., Inc., 8th Dist. Cuyahoga No. 102119, 2016-Ohio-1466. 

Because appellant did not meet his reciprocal summary judgment burden, the award of 

summary judgment in appellee’s favor was proper. 

{¶28} Accordingly, appellant’s first and second assignments of lack merit and 

are overruled. 

{¶29} Appellant’s third assignment of error states: 

 THE APPELLEE DID NOT GIVE PROPER SERVICE TO THE 

APPELLANT. 

{¶30} Appellant argues that he did not receive proper notice of this action. 

{¶31} Due process requires that service of process be accomplished in a manner 

“reasonably calculated, under all the circumstances, to apprise [interested parties] of the 

pendency of the action.” Samson Sales, Inc. v. Honeywell, Inc., 66 Ohio St.2d 290, 293, 

421 N.E.2d 522 (1981). 

{¶32} Service of process must comply with Civ.R. 4.1 through 4.6. The plaintiff 

bears the burden of achieving proper service on the defendant. Draghin v. Issa, 8th Dist. 

Cuyahoga No. 98890, 2013-Ohio-1898, ¶ 21. There is a rebuttable presumption of proper 

service when the civil rules governing service are followed. Id. at ¶ 10. 

{¶33} Appellant’s opposition to summary judgment and brief in this appeal only 

argue that he never received service. The methods of service are governed by Civ.R. 

4.1. Pursuant to Civ.R. 4.1(A)(1)(a), service may be made via U.S. certified mail 

evidenced by a return receipt signed by any person. 

{¶34} The record shows that the summons and complaint were sent to appellant 

via U.S. certified mail to 41381 Brown Road in Bethesda, Ohio. This is the address listed 

for appellant on the contract at issue. The return receipt shows that the service was 

signed for by a person. 
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Case No. 18 BE 0040

{¶35} Moreover, appellant timely filed what was construed to be an answer to 

the complaint. Appellant’s answer cited the correct trial court case number for this action 

(17CVF00530W) and raised general denials to all of the complaint’s allegations. As for 

appellant’s opposition to summary judgment, it has no evidence to rebut the presumption 

that he was properly served notice of this action. Based on the above, appellant was 

properly served notice of this action. 

{¶36} Accordingly, appellant’s third assignment of error lacks merit and is 

overruled. 

{¶37} For the reasons stated above, the trial court’s judgment is hereby affirmed. 

Waite, P. J., concurs. 

D’Apolito, J., concurs. 
[Cite as Credit Acceptance Corp. v. Koher, 2019-Ohio-2727.]

 

 

For the reasons stated in the Opinion rendered herein, the assignments of error 

are overruled and it is the final judgment and order of this Court that the judgment of 

the Belmont County Court, Western Division of Belmont County, Ohio, is affirmed. 

Costs to be taxed against the Appellant. 

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution. 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.