Cavalry SPV 1, Assignee of Beneficial, Ohio, Inc., Assignee of Beneficial Mtge., Co. of Ohio v. Griggs

2025 Ohio 1167

• Court: Ohio Court of Appeals
• Decided: April 1, 2025
• Docket: 2024 CA 00043
• Status: Published

Opinion

[Cite as Cavalry SPV 1, Assignee of Beneficial, Ohio, Inc., Assignee of Beneficial Mtge., Co. of Ohio v. Griggs, 2025-Ohio-1167.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

CAVALRY SPV 1, ASSIGNEE OF : JUDGES: BENEFICIAL, OHIO, INC., ASSIGNEE : Hon. Andrew J. King, P.J. OF BENEFICIAL MORTGAGE CO. : Hon. Robert G. Montgomery, J. OF OHIO : Hon. Kevin W. Popham, J. : Plaintiff-Appellee : : -vs- : : JASON M. GRIGGS : Case No. 2024 CA 00043 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No. 05 CVF 2810

JUDGMENT: Reversed

DATE OF JUDGMENT: April 1, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ANTHONY BARONE JASON M. GRIGGS, PRO SE 1100 Superior Avenue 8110 Hula Popper Street 19th Floor Pickerington, OH 43147 Cleveland, OH 44114 King, J.

{¶ 1} Defendant-Appellant, Jason M. Griggs, appeals the October 24, 2024 entry

of the Municipal Court of Fairfield County, Ohio, denying his motion to strike the motions

of judgment creditor and to vacate orders of the court. Purported judgment creditor is

Plaintiff-Appellee, Cavalry SPV 1, Assignee of Beneficial, Ohio, Inc., Assignee of

Beneficial Mortgage Company. We reverse the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On October 17, 2005, Beneficial Ohio, Inc. filed a complaint against Griggs

for amount due on an account secured by a promissory note with an outstanding balance

of $14,575.96, plus interest. Beneficial received a default judgment on August 11, 2006.

A bank garnishment was filed on October 23, 2006, but no funds were available. A

judgment debtor exam was held on February 27, 2007. Additional bank garnishments

were filed on May 31, 2007, resulting in Beneficial recovering $2,038.90.

{¶ 3} On April 10, 2017, Cavalry filed a motion to substitute party plaintiff. The

motion alleged it had been assigned the rights to collect on the account five years earlier

on November 6, 2012; but no exhibit was attached to indicate an assignment relative to

Griggs's account (no name or account number). The trial court granted the motion on

April 18, 2017.

{¶ 4} Three years later, on June 24, 2020, Cavalry filed a motion to revive

dormant judgment which the trial court granted on September 22, 2020. On March 15,

2021, Cavalry filed a garnishment order with Griggs's employer to garnish his wages, but

he was no longer employed with the employer. On May 21, 2024, Cavalry filed another

garnishment order with another purported employer in Texas. {¶ 5} On May 29, 2024, Griggs filed a motion to strike all motions filed by Cavalry

and to vacate all court orders made in response to the motions, arguing he never received

notice of the motion to substitute party plaintiff and Cavalry did not allege and prove the

assignment from Beneficial; he further argued he was not properly served with the motion

to revive dormant judgment. Cavalry did not respond to the motion.

{¶ 6} A hearing on Griggs's motion was held on July 10, 2024. Cavalry did not

appear. By entry filed October 1, 2024, the trial court denied Griggs's motion, finding inter

alia the motion to substitute party plaintiff was properly served to Griggs. The trial court

did not address Griggs's argument relative to alleging and proving a proper assignment.

{¶ 7} Griggs filed an appeal and assigned the following errors:

I

{¶ 8} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY HOLDING THAT

APPELLEE, AN ASSIGNEE, DID NOT ALLEGE AND PROVE THE ASSIGNMENT IN

ORDER TO COLLECT IN AN ACTION ON AN ACCOUNT."

II

{¶ 9} "THE TRIAL COURT ERRED WHEN IT DETERMINED THAT PROPER

SERVICE OCCURRED WHEN A REVIVOR OF JUDGMENT WAS SIGNED BY THE

PARTY DELIVERING THE MOTION AND THE PROOF OF SERVICE CONTAINED AN

INCORRECT ADDRESS."

{¶ 10} In his first assignment of error, Griggs claims the trial court erred in failing

to have Cavalry allege and prove the assignment in order to collect on the account. We

agree. {¶ 11} The trial court treated Griggs's motion as a Civ.R. 60(B) motion to vacate,

limiting its analysis to the catch-all provision of subsection (5): "any other reason justifying

relief from the judgment." A motion for relief from judgment under Civ.R. 60(B) lies in the

trial court's sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75 (1987). "Abuse of

discretion" means an attitude that is unreasonable, arbitrary or unconscionable. Huffman

v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87 (1985). An unreasonable decision is one

backed by no sound reasoning process which would support that decision. AAAA

Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161 (1990). "An abuse of discretion exists where the reasons given by the court for

its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where

the judgment reaches an end or purpose not justified by reason and the evidence." State

v. AAA Sly Bail Bonds, 2018-Ohio-2943, ¶ 28 (5th Dist.), citing Tennant v. Gallick, 2014-

Ohio-477, ¶ 35 (9th Dist.); In re Guardianship of S.H., 2013-Ohio-4380, ¶ 9 (9th Dist.);

State v. Firouzmandi, 2006-Ohio-5823, ¶ 54 (5th Dist.). "As a general rule, misapplication

of the law to the facts is an abuse of discretion." Thirty Four Corp. v. Sixty Seven Corp.,

91 Ohio App.3d 818, 823 (10th Dist. 1993).

{¶ 12} In an action on an account, when an assignee is attempting to collect on an

account, the assignee must "allege and prove the assignment." Zwick v. Zwick, 103 Ohio

App. 83, 84 (1956). In order to prevail, "the assignee must prove that they are the real

party in interest for purposes of bringing the action"; an "assignee cannot prevail on the

claims assigned by another holder without proving the existence of a valid assignment

agreement." Worldwide Asset Purchasing, L.L.C. v. Sandoval, 2008-Ohio-6343, ¶ 26 (5th

Dist.). {¶ 13} Cavalry attached several documents to its April 10, 2017 motion to

substitute party. One document is a November 6, 2012 Assignment and Bill of Sale

stating the Beneficial entities listed in Schedule I sold and assigned the "Accounts (as

defined in Section 1 of the Agreement)." Schedule I is attached listing at a minimum

nineteen Beneficial entities. The "Agreement" or "Accounts" are not attached. The only

other attachment is a Limited Power of Attorney without any reference to specific

accounts. In the motion and the attachments, there is no mention of Griggs (other than

the case caption), his account number, or his outstanding balance. The Assignment and

Bill of Sale was signed by "Donald J. Scarcello" with the title of "Vice President" of some

unnamed entity. There is zero evidence that this purported Assignment and Bill of Sale

included Griggs's account among the assigned accounts.

{¶ 14} Based upon the state of the record, there is no evidence that the subject

account was properly assigned to Cavalry. See Cavalry SPV, I LLC v. Workman, 2019-

Ohio-4750 (5th Dist.); Midland Funding, LLC v. Snedeker, 2014-Ohio-887 (5th Dist.);

Midland Funding, LLC v. Biehl, 2013-Ohio-4150 (5th Dist.).1 In these cases, this court

found the purported assignees failed to produce sufficient evidence of a lawful

assignment and each of those cases included more information than this case.

{¶ 15} Upon review, we find the trial court misapplied the law to the facts and its

decision was legally incorrect; therefore, the trial court abused its discretion in denying

Griggs's motion to vacate the order of substitution of party plaintiff.

{¶ 16} Assignment of Error I is granted. Assignment of Error II is moot.

1Contrary to the trial court's decision, the fact that these cases involved an analysis under

a summary judgment standard is of no consequence; the analysis to "allege and prove an assignment" contained therein is applicable to this case. {¶ 17} The judgment of the Municipal Court of Fairfield County, Ohio is hereby

reversed.

By: King, P.J.

Montgomery, J. and

Popham, J. concur.