Midland Funding. L.L.C. v. Farrell

2013 Ohio 5509

• Court: Ohio Court of Appeals
• Decided: July 24, 2013
• Docket: C-120674
• Status: Published

Opinion

[Cite as Midland Funding. L.L.C. v. Farrell, 2013-Ohio-5509.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

MIDLAND FUNDING LLC, d.b.a. : APPEAL NO. C-120674 MIDLAND FUNDING DE LLC, TRIAL NO. 12CV-10765 : Plaintiff-Appellee, : O P I N I O N. vs. : WILLIAM I. FARRELL,

Defendant-Appellant. :

Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 24, 2013

Javitch, Block & Rathbone, LLC, and Steven E. Alslip, for Plaintiff-Appellee,

William I. Farrell, pro se.

Please note: this case has been removed from the accelerated calendar. [Cite as Midland Funding. L.L.C. v. Farrell, 2013-Ohio-5509.]

FISCHER, Judge.

{¶1} Defendant-appellant William Farrell contests the entry of summary

judgment for plaintiff-appellee Midland Funding LLC (“Midland”) on its claim to

collect an unpaid balance due on a credit-card account. Because we determine that

Midland was entitled to judgment as a matter of law on its action on account, we

affirm.

{¶2} Midland alleged in its complaint that it had acquired all the rights,

title, and interest in Farrell’s credit-card account with Chase Bank, and that Farrell

owed $8,331.05. In his answer, Farrell denied the allegations and asserted as a

defense that Midland was not the proper party in interest to bring suit. Midland then

moved for summary judgment, supporting its motion with the affidavits of April

Crandall and Martin Lavergne, a redacted bill of sale between Chase Bank and

Midland, and account statements dated from late October 2008, with a starting

balance of $6,367.99, to April 2010, which contained Farrell’s name and an account

number ending in 9263.

{¶3} Crandall averred that she was a legal specialist for the servicer of the

account at issue, Midland Credit Management, Inc., who had access to Midland’s

records. Crandall averred the following:

Plaintiff is the current owner of, and/or successor to, the

obligation sued upon, and was assigned all the rights,

title, and interest to defendant’s CHASE BANK USA,

N.A. account XXXXXXXXXXXX9263 (MCM Number

[redacted]) (hereinafter “the account”). I have access to

and have reviewed the records pertaining to the account [Cite as Midland Funding. L.L.C. v. Farrell, 2013-Ohio-5509.]

and am authorized to make this affidavit on plaintiff’s

behalf.

{¶4} Crandall also stated in her affidavit that Farrell owed $8,331.05 on the

account. Lavergne averred that he was an officer of JPMorgan Chase Bank, N.A.,

and that Chase Bank sold a pool of charged-off accounts to Midland. Finally, the bill

of sale provided, in part, that Chase Bank had assigned “all rights, title and interest *

* * in and to those certain receivables, judgments or evidences of debt described in

the Final Data File entitled (Account’s Primary Final Name) attached hereto and

made part hereof for all purposes.” The “Final Data File” referenced as an

attachment to the bill of sale was never filed with the trial court.

{¶5} In response to Midland’s motion for summary judgment, Farrell filed

an affidavit requesting more time to complete discovery, averring in part that more

discovery was needed on the issue of Midland’s standing to bring suit. Farrell

submitted no evidence of any kind to dispute that his account with Chase Bank had

been assigned to Midland. The trial court denied Farrell’s request for more discovery

and granted summary judgment for Midland.

{¶6} In a single assignment of error, Farrell contends that the trial court

erred in granting summary judgment for Midland. Farrell specifically argues that the

trial court erred in not allowing him more time to conduct discovery, and in relying

on the affidavits of Crandall and Lavergne because neither allegedly properly

authenticated the records attached to Midland’s motion, nor did they establish a

valid chain of assignment. [Cite as Midland Funding. L.L.C. v. Farrell, 2013-Ohio-5509.]

Summary Judgment

{¶7} Under Civ.R. 56(C), a motion for summary judgment may be granted

only when no genuine issue of material fact remains to be litigated, the moving party

is entitled to judgment as a matter of law, and it appears from the evidence that

reasonable minds can come to but one conclusion, and with the evidence construed

most strongly in favor of the nonmoving party, that conclusion is adverse to that

party. See State ex rel. Howard v. Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189

(1994). Where a party moves for summary judgment as to its claims, that party has

the initial burden to identify the absence of genuine issues of material fact on

essential elements of its claims. See Civ.R. 56(A); see also Dresher v. Burt, 75 Ohio

St.3d 280, 293, 662 N.E.2d 264 (1996). The nonmoving party then has a reciprocal

burden to set forth specific facts, by the means listed in Civ.R. 56(C) and 56(E),

showing that triable issues of fact exist, and cannot rest on the allegations or denials

in the pleadings. See Dresher.

{¶8} We review a trial court’s grant of summary judgment de novo. E.g.,

Jorg v. Cincinnati Black United Front, 153 Ohio App.3d 258, 2003-Ohio-3668, 792

N.E.2d 781 (1st Dist.).

Failure to Object to Authenticity of Documents

{¶9} As to Farrell’s claim that the account statements and bill of sale were

not properly authenticated, Farrell never objected to the authenticity of these records

at the trial-court level, and therefore, he has waived all but plain error on appeal.

See, e.g., Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 436-437,

659 N.E.2d 1232 (1996). The plain error doctrine is not favored in civil cases, and it

should only be applied in “the extremely rare case involving exceptional [Cite as Midland Funding. L.L.C. v. Farrell, 2013-Ohio-5509.]

circumstances where error * * * seriously affects the basic fairness, integrity, or

public reputation of the judicial process, thereby challenging the legitimacy of the

underlying judicial process itself.” See Goldfuss v. Davidson, 79 Ohio St.3d 116, 679

N.E.2d 1099 (1997), syllabus. We refuse to recognize the failure, if any, to properly

authenticate these documents as plain error.

Civ.R. 56(F) Motion

{¶10} Farrell also argues that the trial court erred in overruling his Civ.R.

56(F) motion seeking more time for discovery. We review a trial court’s decision

granting or denying a party’s request for more time for discovery for an abuse of

discretion, and a denial of such request should be upheld if the party fails to show

that the requested discovery would have precluded summary judgment. See Bank of

Am., N.A. v. Omega Design/Build Group LLC, 1st Dist. Hamilton No. C-100018,

2011-Ohio-1650, ¶ 40. “General averments requesting a continuance for the purpose

of discovery are insufficient as ‘the party seeking the Civ.R. 56(F) continuance must

state a factual basis and reasons why the party cannot present sufficient

documentary evidence without a continuance.’ ” BAC Home Loans Servicing, LP. v.

Kolenich, 194 Ohio App.3d 777, 2011-Ohio-3345, 958 N.E.2d 194, ¶ 18 (12th Dist.),

quoting Silver v. Jewish Home of Cincinnati, 190 Ohio App.3d 549, 2010-Ohio-5314,

943 N.E.2d 577, ¶ 20 (12th Dist.).

{¶11} In his Civ.R. 56(F) motion, Farrell requested more time for discovery

to “adequately investigate [Midland’s] allegations” and to possibly file counterclaims

or additional claims against others. Farrell also argued that he “never had any

contractual relationship, account, or other fiduciary relationship * * * [with

Midland], and the lack of any such standing would entitle [him] to the ordinary [Cite as Midland Funding. L.L.C. v. Farrell, 2013-Ohio-5509.]

discovery efforts applicable to a civil action prior to granting a motion for summary

judgment.”

{¶12} Farrell, however, had more than three months in which to initiate

discovery upon Midland prior to the filing of Midland’s summary-judgment motion,

during which time Farrell was served with, and responded to, Midland’s discovery

requests. Farrell did nothing to advance the discovery he argued was needed, prior

to his Civ.R. 56(F) motion. Therefore, we cannot say that the trial court’s decision in

overruling Farrell’s request under Civ.R. 56(F) was unreasonable, arbitrary, or

unconscionable. See Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

1140 (1983).

Existence of a Valid Assignment Agreement

{¶13} In order to establish a prima facie case for money owed on an account,

Midland must show the following:

[a]n 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.

(Internal quotations omitted.) See Gabriele v. Reagan, 57 Ohio App.3d 84, 87, 566

N.E.2d 684 (12th Dist.1988).

{¶14} Midland, as an assignee, also must establish the existence of a valid

assignment agreement. See Capital Fin. Credit, LLC v. Mays, 191 Ohio App.3d 56, [Cite as Midland Funding. L.L.C. v. Farrell, 2013-Ohio-5509.]

2010-Ohio-4423, 944 N.E.2d 1184, ¶ 6 (1st Dist.); Zwick & Zwick v. Suburban

Constr. Co., 103 Ohio App. 83, 84, 134 N.E.2d 733 (8th Dist.1956). To establish the

existence of a valid assignment agreement for purposes of summary judgment,

courts have required more than an averment by an assignee that it has acquired all

rights, title, and interest in the account. See EMCC Invest. Ventures, LLC v. Rowe,

11th Dist. Portage No. 2011-P-0053, 2012-Ohio-4462, ¶ 26 (evidence insufficient to

establish chain of title on an account where the alleged assignee presented an

affidavit of an employee who averred that the assignee had acquired all rights, title,

and interest in the account, but no bill of sale or similar document detailing the

terms of the assignment were presented).

{¶15} In this case, the trial court properly granted summary judgment to

Midland. Midland produced evidence in the form of affidavits on all elements of an

action on an account. Crandall’s affidavit contained the unequivocal and

uncontradicted statement that Midland was the successor in interest to Farrell’s

account and that Farrell owed $8,331.05. The affidavit further contained the last

four digits of Farrell’s account number, which matched the last four digits of the

account number on the specific account statements with Farrell’s name on them.

Crandall’s affidavit and the account statements, together with Lavergne’s affidavit

and the bill of sale, were sufficient to establish the absence of any genuine issues of

material fact as to the elements of Midland’s claim.

{¶16} Farrell then failed to meet his reciprocal burden as the nonmoving

party to set forth specific factual evidence showing a genuine issue of material fact.

See Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264; see also Gabriele, 57 Ohio [Cite as Midland Funding. L.L.C. v. Farrell, 2013-Ohio-5509.]

App.3d at 87, 566 N.E.2d 684. Because he did not submit any evidence permitted

under Civ.R. 56, Farrell did not create a material fact dispute.

{¶17} Because we determine that summary judgment was properly granted

to Midland by the trial court, we overrule Farrell’s assignment of error. The

judgment of the trial court is affirmed.

Judgment affirmed.

HILDEBRANDT, P.J., concurs. CUNNINGHAM, J., dissents.

CUNNINGHAM, J., dissenting,

{¶18} Because Midland did not establish that it is the assignee of Farrell’s

credit-card account, I respectfully dissent.

{¶19} When, as here, a plaintiff brings an action on an account obtained from

another entity, it must “allege and prove the assignment.” See Worldwide Asset

Purchasing, L.L.C. v. Sandoval, 5th Dist. Stark No. 2007-CA-00159, 2008-Ohio-6343, ¶

26, quoting Zwick v. Zwick, 103 Ohio App. 83, 84, 134 N.E.2d 733 (8th Dist.1956); see

also Capital Fin. Credit, 191 Ohio App.3d 56, 2012-Ohio-4423, 944 N.E.2d 1184, at ¶ 6

(holding that an assignee bringing an action on an account must establish the existence

of a valid assignment agreement).

{¶20} Midland claims that it was the purported assignee of Farrell’s credit-card

account. Midland, as a party seeking summary judgment on its own claim, bears the

burden of affirmatively demonstrating as a matter of law that there are no genuine

issues of material fact with respect to every essential element of its claim. See Civ.R.

56(A); see also Capital Fin. Credit, 191 Ohio App.3d 56, 2012-Ohio-4423, 944 N.E.2d [Cite as Midland Funding. L.L.C. v. Farrell, 2013-Ohio-5509.]

1184, at ¶ 5. Farrell’s reciprocal burden to establish the existence of genuine issues of

material fact does not arise if Midland cannot meet its initial burden. See Capital Fin.

Credit, 191 Ohio App.3d 56, 2012-Ohio-4423, 944 N.E.2d 1184, at ¶ 5.

{¶21} Here, Midland has failed to establish an essential element of its claim:

that Farrell’s account was among those assigned to Midland. See Hudson & Keyse, LLC

v. Yarnevic-Rudolph, 7th Dist. Jefferson No. 09 JE 4, 2010-Ohio-5938, ¶ 24. Crandall’s

affidavit states only that Midland is the current owner of Farrell’s account. It does not

describe when or under what terms Midland acquired the account. Lavergne’s affidavit

and the one-page, redacted bill of sale establish that on November 28, 2011, Midland

became the assignee of Chase Bank’s interest in “certain receivables, judgments or

evidences of debt.” But the list identifying those accounts—the Final Data File—was

never filed with the trial court. Thus Midland did not present any evidence to the trial

court that Farrell’s agreement was among the accounts assigned to Midland by Chase

Bank.

{¶22} Since a genuine issue of material fact remains as to whether Farrell’s

account was among those properly assigned to Midland, an essential element of its

claim, I would reverse the trial court’s grant of summary judgment, and remand this

case for further proceedings.

Please note: The court has recorded its own entry on the date of the release of this opinion.