[Cite as Matrix Acquisitions, LLC v. Hooks, 2011-Ohio-3033.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
MATRIX ACQUISITIONS, LLC JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 10CA111 TIMOTHY HOOKS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2010 CV 557
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 15, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PARRI J. HOCKENBERRY BRIAN J. CHISNELL JACKSON T. MOYER UAW-GM Legal Services Plan Cheek Law Offices, LLC 1075 National Parkway, P.O. Box 2668 471 E. Broad St., 12th Floor Mansfield, Ohio 44906 Columbus, Ohio 43215 Richland County, Case No. 10CA111 2
Hoffman, J.
{¶1} Defendant-appellant Timothy Hooks appeals the August 25, 2010
Judgment Entry of the Richland County Court of Common Pleas entering summary
judgment in favor of Plaintiff-appellee Matrix Acquisitions, LLC.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 7, 2010, Appellee Matrix Acquisitions LLC (“Matrix”) filed a
Complaint against Appellant Timothy Hooks asserting Appellant owed a debt arising
from a Chase Bank USA credit card account purchased by Matrix. The credit card was
issued by Chase Bank USA/First USA (“Chase”).
{¶3} After Appellant filed his Answer, Matrix filed a motion for summary
judgment supported by an affidavit of an unidentified custodian of Matrix, a Bill of Sale
from Chase to Dodeka, LLC dated December 1, 2008, an Assignment of Accounts and
Waiver of Notice of Transfer of Claims from Dodeka, LLC to Matrix dated March 5,
2010, Bank One/Chase Bank Billing Statements for the period of February 27, 2003 to
November 25, 2006, six checks from Appellant payable to Chase for the period of
September 22, 2006 to April 19, 2007, and Appellant’s responses to discovery requests.
{¶4} Via Judgment Entry of August 25, 2010, the trial court entered judgment in
favor of Matrix in the amount of $5,966.94, plus interest of $5,186.82 through July 15,
2010 and further interest at 4% thereafter.
{¶5} Appellant now appeals, assigning as error:
{¶6} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN
DETERMINING THAT PLAINTIFF/APPELLEE IS ENTITLED TO JUDGMENT AS A
MATTER OF LAW. Richland County, Case No. 10CA111 3
{¶7} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN
DETERMINING THAT THERE WERE NO GENUINE ISSUES OF MATERIAL FACT.”
{¶8} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212.
Therefore, we must refer to Civ.R. 56(C), which provides, in pertinent part: “Summary
judgment shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence in the pending
case, and written stipulations of fact, if any, timely filed in the action, show that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. * * * A summary judgment shall not be rendered unless it
appears from the evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled
to have the evidence or stipulation construed most strongly in the party's favor.”
{¶9} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears that a material fact is genuinely disputed. The party moving for summary
judgment bears the initial burden of informing the trial court of the basis for its motion
and identifying those portions of the record that demonstrate the absence of a genuine
issue of material fact. The moving party may not make a conclusory assertion that the
nonmoving party has no evidence to prove its case. The moving party must specifically
point to some evidence which demonstrates that the nonmoving party cannot support its
claim. If the moving party satisfies this requirement, the burden shifts to the nonmoving Richland County, Case No. 10CA111 4
party to set forth specific facts demonstrating there is a genuine issue of material fact for
trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997–Ohio–259, 674 N.E.2d 1164, citing
Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264.
I.
{¶10} Appellant asserts the trial court erred in applying the incorrect statute of
limitations in this matter. Appellant argues because Bank One and Chase were
Delaware corporations and the billing statements originated in Delaware, it is presumed
Delaware law controls under the cardholder agreement. Delaware law mandates a
three-year statute of limitations for actions on an account. Title 10 of Delaware Code
Section 8106.
{¶11} Appellant asserts pursuant to Ohio’s borrowing statute, found in R.C.
2305.03, the cause of action herein accrued in Delaware, therefore the Delaware
statute of limitations governs the action. Further, Appellant suggests the choice of law
provision in the cardholder agreement most likely specifies Delaware law should govern
the action.
{¶12} Matrix did not offer the cardholder agreement into evidence. Rather,
Matrix argued either a fifteen-year statute of limitations for written contracts, pursuant to
Ohio Revised Code Section 2305.06, applies to this action, or a six-year statute of
limitations for unwritten contracts, pursuant to Ohio Revised Code Section 2305.07,
applies.
{¶13} “The Ohio Supreme Court has adopted the Restatement (Second) of
Conflict of Laws to govern conflict of law issues. Cole v. Mileti, 133 F.3d 433, 437 (6th
Cir.1998). When there is a conflict between two states' statutes of limitations, the Richland County, Case No. 10CA111 5
Restatement provides that ‘[a]n action will be maintained if it is not barred by the statute
of limitations of the forum, even though it would be barred by the statute of limitations of
another state.’ Id. (citing Restatement (Second) of Conflict of Laws § 142(2) (1971)).
[Footnote omitted.] Therefore, Ohio courts are required to apply Ohio's statute of
limitations to an action filed in Ohio even if that action would be time-barred in another
state. Id.” Dudek v. Thomas & Thomas Attorneys & Counselors at Law, LLC (N.D.
Ohio. 2010), 702 F.Supp.2d 826, 834.
{¶14} Appellant raised the statute of limitations argument as an affirmative
defense and Appellant has the burden of proof with regard to establishing the defense.
A motion for summary judgment forces the non-moving party to produce probative
evidence on all essential elements of the case for which the burden of production rests
on that party. Celotex Corp. v. Catrett, (1987), 477 U.S. 317
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[Cite as Matrix Acquisitions, LLC v. Hooks, 2011-Ohio-3033.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
MATRIX ACQUISITIONS, LLC JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 10CA111 TIMOTHY HOOKS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2010 CV 557
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 15, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PARRI J. HOCKENBERRY BRIAN J. CHISNELL JACKSON T. MOYER UAW-GM Legal Services Plan Cheek Law Offices, LLC 1075 National Parkway, P.O. Box 2668 471 E. Broad St., 12th Floor Mansfield, Ohio 44906 Columbus, Ohio 43215 Richland County, Case No. 10CA111 2
Hoffman, J.
{¶1} Defendant-appellant Timothy Hooks appeals the August 25, 2010
Judgment Entry of the Richland County Court of Common Pleas entering summary
judgment in favor of Plaintiff-appellee Matrix Acquisitions, LLC.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 7, 2010, Appellee Matrix Acquisitions LLC (“Matrix”) filed a
Complaint against Appellant Timothy Hooks asserting Appellant owed a debt arising
from a Chase Bank USA credit card account purchased by Matrix. The credit card was
issued by Chase Bank USA/First USA (“Chase”).
{¶3} After Appellant filed his Answer, Matrix filed a motion for summary
judgment supported by an affidavit of an unidentified custodian of Matrix, a Bill of Sale
from Chase to Dodeka, LLC dated December 1, 2008, an Assignment of Accounts and
Waiver of Notice of Transfer of Claims from Dodeka, LLC to Matrix dated March 5,
2010, Bank One/Chase Bank Billing Statements for the period of February 27, 2003 to
November 25, 2006, six checks from Appellant payable to Chase for the period of
September 22, 2006 to April 19, 2007, and Appellant’s responses to discovery requests.
{¶4} Via Judgment Entry of August 25, 2010, the trial court entered judgment in
favor of Matrix in the amount of $5,966.94, plus interest of $5,186.82 through July 15,
2010 and further interest at 4% thereafter.
{¶5} Appellant now appeals, assigning as error:
{¶6} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN
DETERMINING THAT PLAINTIFF/APPELLEE IS ENTITLED TO JUDGMENT AS A
MATTER OF LAW. Richland County, Case No. 10CA111 3
{¶7} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN
DETERMINING THAT THERE WERE NO GENUINE ISSUES OF MATERIAL FACT.”
{¶8} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212.
Therefore, we must refer to Civ.R. 56(C), which provides, in pertinent part: “Summary
judgment shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence in the pending
case, and written stipulations of fact, if any, timely filed in the action, show that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. * * * A summary judgment shall not be rendered unless it
appears from the evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled
to have the evidence or stipulation construed most strongly in the party's favor.”
{¶9} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears that a material fact is genuinely disputed. The party moving for summary
judgment bears the initial burden of informing the trial court of the basis for its motion
and identifying those portions of the record that demonstrate the absence of a genuine
issue of material fact. The moving party may not make a conclusory assertion that the
nonmoving party has no evidence to prove its case. The moving party must specifically
point to some evidence which demonstrates that the nonmoving party cannot support its
claim. If the moving party satisfies this requirement, the burden shifts to the nonmoving Richland County, Case No. 10CA111 4
party to set forth specific facts demonstrating there is a genuine issue of material fact for
trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997–Ohio–259, 674 N.E.2d 1164, citing
Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264.
I.
{¶10} Appellant asserts the trial court erred in applying the incorrect statute of
limitations in this matter. Appellant argues because Bank One and Chase were
Delaware corporations and the billing statements originated in Delaware, it is presumed
Delaware law controls under the cardholder agreement. Delaware law mandates a
three-year statute of limitations for actions on an account. Title 10 of Delaware Code
Section 8106.
{¶11} Appellant asserts pursuant to Ohio’s borrowing statute, found in R.C.
2305.03, the cause of action herein accrued in Delaware, therefore the Delaware
statute of limitations governs the action. Further, Appellant suggests the choice of law
provision in the cardholder agreement most likely specifies Delaware law should govern
the action.
{¶12} Matrix did not offer the cardholder agreement into evidence. Rather,
Matrix argued either a fifteen-year statute of limitations for written contracts, pursuant to
Ohio Revised Code Section 2305.06, applies to this action, or a six-year statute of
limitations for unwritten contracts, pursuant to Ohio Revised Code Section 2305.07,
applies.
{¶13} “The Ohio Supreme Court has adopted the Restatement (Second) of
Conflict of Laws to govern conflict of law issues. Cole v. Mileti, 133 F.3d 433, 437 (6th
Cir.1998). When there is a conflict between two states' statutes of limitations, the Richland County, Case No. 10CA111 5
Restatement provides that ‘[a]n action will be maintained if it is not barred by the statute
of limitations of the forum, even though it would be barred by the statute of limitations of
another state.’ Id. (citing Restatement (Second) of Conflict of Laws § 142(2) (1971)).
[Footnote omitted.] Therefore, Ohio courts are required to apply Ohio's statute of
limitations to an action filed in Ohio even if that action would be time-barred in another
state. Id.” Dudek v. Thomas & Thomas Attorneys & Counselors at Law, LLC (N.D.
Ohio. 2010), 702 F.Supp.2d 826, 834.
{¶14} Appellant raised the statute of limitations argument as an affirmative
defense and Appellant has the burden of proof with regard to establishing the defense.
A motion for summary judgment forces the non-moving party to produce probative
evidence on all essential elements of the case for which the burden of production rests
on that party. Celotex Corp. v. Catrett, (1987), 477 U.S. 317. The evidence must be
such that a reasonable jury might return a verdict in the party’s favor. Seredick v.
Karnok (1994), 99 Ohio App.3d 502.
{¶15} Appellant has conclusively and summarily alleged the cause of action
accrued in Delaware and the cardholder agreement is likely to elect Delaware Law as
the choice of law. However, upon our review, we find Appellant has not affirmatively
demonstrated via the pleadings, written admissions and affidavits submitted in support
thereof, how the laws of the State of Delaware govern the subject account. As neither
party has filed the cardholder agreement with their pleadings or in support of the motion
or in opposition to summary judgment, we find the trial court properly applied the law of
the State of Ohio. Richland County, Case No. 10CA111 6
{¶16} Appellant further argues R.C. 1319.12 applies to Matrix as a collection
agency; therefore, Matrix failed to prove proper assignment of the subject account
pursuant to the statute’s requirements.
{¶17} Matrix is not a debt collection agency; rather, the owner of the debt owed.
The record demonstrates Matrix is attempting to collect the debt on its own behalf, not
on behalf of another party or creditor. The Bill of Sale Matrix submitted in support of its
motion for summary judgment indicates any and all interest, title and ownership rights to
the accounts receivable were sold and not merely assigned to Matrix.
{¶18} Appellant’s first assignment of error is overruled.
II.
{¶19} Appellant asserts the affidavit of an “unidentified individual”1 submitted as
evidence of the chain of title for Appellant’s account is sufficient to establish the Bill of
Sale included the sale of Appellant’s account to Dodeka, LLC. We agree.
{¶20} The affidavit submitted by Appellee identified and attached a Bill of Sale
from Chase Bank USA, N.A. to Dodeka, LLC which purports to transfer all Chase’s
rights to certain accounts receivable described in an attached Exhibit One. The affiant
is records custodian for Appellee. While we question whether the affiant is competent
to lay the proper foundation for the transfer from Chase to Dodeka, we need not answer
that issue now. From our review of the file, we cannot find Exhibit One which we
believe is necessary to show a transfer of Appellant’s account to Dodeka.
{¶21} The second document attached as Exhibit B to the affidavit is an
Assignment of Accounts from Dodeka to Appellee. It purports to transfer Dodeka’s
accounts receivable to Appellee as described on computer files furnished by Dodeka to 11 Appellant’s brief identifies the affiant as Gabriel Cheek. Richland County, Case No. 10CA111 7
Appellee. Again, we are unable to locate such computer files from our review of the
record
{¶22} We find Appellee’s affidavit insufficient to establish it is the legal owner of
the Appellant’s account. Appellant’s second assignment of error is sustained.
{¶23} The August 25, 2010 Judgment Entry of the Richland County Court of
Common Pleas is reversed, and the matter remanded for further proceedings in
accordance with the law and this opinion.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY Richland County, Case No. 10CA111 8
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
MATRIX ACQUISITIONS, LLC : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : TIMOTHY HOOKS : : Defendant-Appellant : Case No. 10CA111
For the reasons stated in our accompanying Opinion, the judgment of the
Richland County Court of Common Pleas is reversed, and the matter is remanded to
that court for further proceedings in accordance with the law and our Opinion. Costs to
Appellee.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY