Midland Funding L.L.C. v. Mays

2016 Ohio 327

• Court: Ohio Court of Appeals
• Decided: January 29, 2016
• Docket: L-14-1154
• Status: Published

Opinion

[Cite as Midland Funding L.L.C. v. Mays, 2016-Ohio-327.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Midland Funding LLC, doing business Court of Appeals No. L-14-1154 in Ohio as Midland Funding DE LLC Trial Court No. CVF-12-16161 Appellee

v.

Rene Mays DECISION AND JUDGMENT

Appellant Decided: January 29, 2016

*****

Rene Mays, pro se.

OSOWIK, J.

{¶ 1} This is an accelerated pro se appeal from a judgment of the Toledo

Municipal Court denying appellant Rene Mays’ motion for relief from judgment in this

action brought to recover funds due and owing appellee Midland Funding LLC, doing

business in Ohio as Midland Funding DE LLC. For the following reasons, the judgment

of the trial court is affirmed. {¶ 2} On September 5, 2012, appellee filed a complaint alleging that appellant

owed $5,323.45, plus interest, for repayment of a credit card account appellee purchased

from Chase Bank USA, N.A. Appellee claimed it had made a demand on appellant for

repayment of the account but that appellant had failed to pay the balance due.

{¶ 3} Appellant filed an answer pro se, denying the allegations and asserting

numerous defenses. On December 19, 2012, appellant filed a pro se motion for summary

judgment and/or motion to dismiss, arguing that appellee had failed to attach a proper

account to the complaint pursuant to Civ.R. 10(D). On January 9, 2013, appellee filed a

memorandum in opposition to appellant’s motion, asserting that it had in fact alleged an

amount due and provided the charge-off statement that set forth appellant’s name, the

original creditor information and the balance due, and stating that the foregoing

information was more than sufficient for appellant to answer the complaint. Appellee

added that appellant, in support of her motion, had not stated any legitimate dispute as to

the nature of the debt, the amount alleged to be outstanding or her right of action on the

debt.

{¶ 4} On April 18, 2013, appellee filed a motion for summary judgment, asserting

that the material facts in this case were undisputed: that appellant utilized the credit card

and left an outstanding balance on the account. Appellee also asserted that it was entitled

to judgment as a matter of law based on those facts and that appellant had not produced

any evidence to demonstrate that the account was paid in full. Appellant filed a

memorandum contra on May 6, 2013. On May 20, 2013, the trial court granted

2. appellee’s motion for summary judgment. On June 18, 2013, appellant filed a motion to

vacate that judgment entry. The trial court’s journal indicates that neither party appeared

at a hearing on June 28, 2013, and that the trial court ordered summary judgment to

stand. On December 9, 2013, appellant filed a motion for relief from judgment. On

April 28, 2014, appellant filed an affidavit in support of her motion for relief from

judgment, instanter. The trial court denied appellant’s motion for relief from judgment

on June 16, 2014.

{¶ 5} Appellant sets forth the following sole assignment of error:

Assignment of Error No. 1: The trial court abused its discretion in

denying inter alia Appellant’s Rule 60(B) July 8, 2013 motion to vacate

entry of May 20, 2013, and Appellant’s Rule 60(B) December 9, 2013

motion to vacate entry of July 16, 2013 under the facts and circumstances

of this case. See Orders of 07/16/2013 and 06/16/2014.

{¶ 6} In order to prevail on a Civ.R. 60(B) motion for relief from judgment, a

movant must demonstrate that: (1) the party has a meritorious defense or claim to present

if relief is granted; (2) the party is entitled to relief under one of the grounds stated in

Civ.R. 60(B)(1)-(5); and the motion is made within a reasonable time. GTE Automatic

Elec. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976). If any of the

three requirements are not met, the motion should be overruled. Rose Chevrolet, Inc. v.

Adams, 36 Ohio St.3d 17, 520 N.E.2d 564 (1988).

3. {¶ 7} An appeal from a denial of a Civ.R. 60(B) motion is reviewed pursuant to an

abuse of discretion standard. Fifth Third Mtge. Co. v. Whittington, 6th Dist. Lucas No. L-

13-1010, 2013-Ohio-2815, ¶ 7-8. An abuse of discretion constitutes more than an error

of law or judgment; it implies an attitude that is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

{¶ 8} The record herein reflects that appellee demonstrated it purchased

defendant’s debt from Chase Bank USA, N.A. on April 26, 2012. Appellee provided the

trial court with the original creditor’s information and balance due, the charge-off

statement, the bill of sale, and the September 25, 2012 affidavit of Serena Slatinsky,

appellee’s legal specialist, affirming that appellee was the current owner of the account

with a balance owed of $5,373.76 as of August 8, 2012.

{¶ 9} The material facts set forth above are undisputed. The record reflects that

appellant utilized the account and left an outstanding balance. Appellant is obligated to

pay the amount due on the account and has not produced any evidence to demonstrate

that the account was paid in full. Therefore, appellant did not demonstrate she had a

meritorious defense or claim to present if relief were granted.

{¶ 10} Accordingly, we find that the trial court correctly denied appellant’s motion

and appellant’s sole assignment of error is not well-taken.

4. {¶ 11} On consideration whereof, the judgment of the Toledo Municipal Court is

affirmed. Costs of this appeal are assessed to appellant pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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