John Soliday Financial Group, L.L.C. v. Pittenger

940 N.E.2d 1035, 190 Ohio App. 3d 145
CourtOhio Court of Appeals
DecidedSeptember 30, 2010
DocketNo. 10 CA 17
StatusPublished
Cited by14 cases

This text of 940 N.E.2d 1035 (John Soliday Financial Group, L.L.C. v. Pittenger) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John Soliday Financial Group, L.L.C. v. Pittenger, 940 N.E.2d 1035, 190 Ohio App. 3d 145 (Ohio Ct. App. 2010).

Opinion

Wise, Judge.

{¶ 1} Plaintiff-appellant, John Soliday Financial Group, L.L.C., appeals the August 13, 2009 magistrate’s decision and the December 30, 2009 judgment entry entered in the Mansfield Municipal Court dismissing both appellant’s complaint and the counterclaim of appellee, Jeff Pittenger.

STATEMENT OF THE FACTS AND CASE

{¶ 2} On February 24, 2005, appellee entered into a retail installment contract with Pro Car Auto Group, Inc., for the purchase of a used 1999 Saturn SL2 motor vehicle. Pursuant to the terms of the contract, the contract and security agreement were assigned to Atlantic Financial Services, Inc., on February 24, 2005. Appellee eventually defaulted on the terms of the contract, and the vehicle was repossessed.

{¶ 3} Appellant asserts that it is the owner of the debt, claiming that it purchased the debt from Ameristar Financial Servicing Co., L.L.C., which acquired the debt from Atlantic Financial Services, Inc., after Atlantic sold it as part of a batch of bad debts.

{¶ 4} At the time of sale of appellee’s account, there was a balance due and owing of $5,428.24.

{¶ 5} On February 27, 2008, appellant filed a complaint in the Mansfield Municipal Court, alleging that appellee had entered into an agreement with appellant’s assignor and defaulted on that agreement. The complaint also alleged that as of the date of the complaint, the unpaid obligation included $5,428.24, plus accrued interest at the contract rate of 24.95 percent. A copy of the retail installment contract was attached to appellant’s complaint.

{¶ 6} Appellee was served via certified mail service on March 6, 2008.

{¶ 7} Appellee did not initially file an answer to the complaint, and on April 17, 2008, a default judgment was granted in favor of appellant.

{¶ 8} On May 1, 2008, counsel for appellee filed a motion for relief from judgment, which was granted on July 10, 2008.

{¶ 9} Subsequently, appellee filed an answer to appellant’s complaint and a counterclaim.

{¶ 10} Appellant answered the counterclaim, and the parties participated in extensive discovery in this matter.

{¶ 11} On July 21, 2009, a trial before a magistrate commenced in this matter. At trial, the magistrate heard testimony from Todd Turner, Robert Bowman, William H. Dunn, and Elaine North. Appellant also submitted the following [149]*149documentary evidence: the retail installment contract, the purchase agreement between Atlantic and Ameristar, the bills of sale/assignments and a redacted copy of the Schedule A referred to in the bills of sale/assignments. Schedule A purports to be an Excel spreadsheet identifying and detailing the included accounts, which was compiled and transmitted via e-mail as part of the sales transaction between Atlantic and Ameristar and then from Ameristar to appellant.

{¶ 12} Todd Turner was the chief operating officer for Atlantic, and his duties included the review and examination of bad debts. He stated that he was personally involved in a transaction that occurred on December 19, 2007, wherein Atlantic entered into a contract with Ameristar to sell a batch of bad debts.

{¶ 13} Robert Bowman testified that he signed the bill of sale and closed the deal between Atlantic and Ameristar.

{¶ 14} William H. Dunn, an employee of Ameristar, testified that he was personally involved in the Atlantic-Ameristar sale.

{¶ 15} Elaine North, the director of administration for appellant, testified that she is the keeper of the records from the sale of debt transactions entered into by appellant.

{¶ 16} On August 13, 2009, a magistrate’s report was filed dismissing both the complaint and the counterclaim without prejudice. In that decision, the magistrate found that the evidence presented by appellant was inadequate and failed to establish that it was the owner of the debt at issue.

{¶ 17} On December 30, 2009, after both parties objected to the magistrate’s report, the magistrate’s report was approved by the judge.

{¶ 18} Appellant now appeals, raising the following assignments of error:

ASSIGNMENTS OF ERROR

{¶ 19} “I. The trial court erred by determining that the evidence presented by appellant failed to meet the authenticity requirements of Ohio Rule of Evidence 901.

{¶ 20} “II. The trial court erred by determining that the evidence presented by appellant failed to meet the business records exception of Ohio Rule of Evidence 803.

{¶ 21} “HI. The trial court erred by determining that the evidence presented by appellant failed to meet the requirements of Ohio Rule of Evidence 1002.

{¶ 22} “IV. The decision of the trial court determining that appellant did not prove its purchase of appellee’s account was against the manifest weight of the evidence presented by appellant at trial.”

[150]*150I, II, and III

{¶ 23} In appellant’s first three assignments of error, appellant challenges the trial court’s decision not to admit evidence pursuant to Evid.R. 901, 803, and 1002.

{¶ 24} The decision before the trial court in this case was whether Evid.R. 1002 required that the original documentation be presented in the case.

{¶ 25} “Evid. R 1002 Requirement of original

{¶ 26} “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio.” (Boldface sic.)

{¶ 27} The Rules of Evidence go on to provide that “[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Evid.R. 1003.

{¶ 28} Generally, the admission or éxclusion of relevant evidence rests within the sound discretion of the trial court, and its decision to admit or exclude that evidence will not be disturbed absent an abuse of that discretion. State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus; State v. Reed (1996), 110 Ohio App.3d 749, 752, 675 N.E.2d 77. However, while the trial court has discretion to admit or exclude relevant evidence, it has no discretion to admit hearsay. Evid.R. 802 requires the exclusion of hearsay unless an exception applies. Thus, we review de novo the trial court’s decision regarding whether evidence is hearsay or nonhearsay under Evid.R. 801. State v. Sorrels (1991), 71 Ohio App.3d 162, 165, 593 N.E.2d 313.

{¶ 29} Hearsay is generally inadmissible, unless it falls within the scope of an exception within the Rules of Evidence. Evid.R. 802; State v. DeMarco (1987), 31 Ohio St.3d 191, 195, 31 OBR 390, 509 N.E.2d 1256.

{¶ 30} One such exception is the “records of regular conducted activity,” more commonly known as the business-records exception. Evid.R. 803(6). The rationale behind Evid.R.

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Cite This Page — Counsel Stack

Bluebook (online)
940 N.E.2d 1035, 190 Ohio App. 3d 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-soliday-financial-group-llc-v-pittenger-ohioctapp-2010.