Phoenix Fin. Solutions, Inc. v. Nichols

2013 Ohio 5278

Opinion

[Cite as Phoenix Fin. Solutions, Inc. v. Nichols, 2013-Ohio-5278.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

PHOENIX FINANCIAL SOLUTIONS, : JUDGES: INC. AN ASSIGNEE OF: DUTRO : USED CARS, INC. : Hon. William B. Hoffman, P.J. Plaintiff-Appellant : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. CT2013-0013 : JODI NICHOLS : : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court, Case No. CVF-1201014

JUDGMENT: REVERSED & REMANDED

DATE OF JUDGMENT ENTRY: November 19, 2013

APPEARANCES:

For Plaintiff-Appellant: For Defendant-Appellee:

JAMES L. BLUNT JODI NICHOLS, pro se 445 Longview Ave. 44 Village Green Court Mansfield, OH 44903 Crooksville, OH 43731 Muskingum County, Case No.CT2013-0013 2

Delaney, J.

{¶1} Appellant Phoenix Financial Solutions, Inc., an Assignee of: Dutro Used

Cars, Inc., hereby appeals from the February 12, 2013 Consent Judgment Entry

entered in the Muskingum County Court. Appellee Jodi Nichols is pro se and did not file

a brief.

{¶2} This case is factually and procedurally similar to Phoenix Financial

Solutions, Inc., an Assignee of: Dutro Used Cars, Inc. v. Jackson, 5th Dist. Muskingum

No. CT2013-0019, which is decided upon the same rationale as the instant case.

FACTS AND PROCEDURAL HISTORY

{¶3} Appellee bought a car from Dutro Used Cars, Inc. and signed a

promissory note with interest at a rate of 21.0% and then failed to remit the payments as

required by the promissory note. The debt was assigned to appellant on September 28,

2012, and appellant filed a complaint in the Muskingum County Court on December 27,

2012 for the deficiency balance, requesting the contractual rate of interest from the date

of sale of the repossessed vehicle.

{¶4} Appellant served the summons and complaint upon appellee by certified

mail which appellee signed for on January 8th, 2013.

{¶5} On February 12, 2013, the trial court granted a Consent Judgment Entry

against appellee, but sua sponte reduced the interest rate in the entry from the agreed-

upon contractual rate to the statutory rate.

{¶6} Appellant now appeals from the February 12, 2013 Consent Judgment

Entry of the trial court. Muskingum County, Case No.CT2013-0013 3

{¶7} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶8} “I. THE TRIAL COURT ERRED BY FAILING TO GRANT PLAINTIFF THE

CONTRACTUAL RATE OF INTEREST, PURSUANT TO OHIO REVISED CODE

1343.03, AS AGREED TO BY DEFENDANT ON A CONSENT TO JUDGMENT.”

ANALYSIS

{¶9} Appellant argues the trial court improperly entered judgment including the

statutory interest rate instead of the contractual interest rate. In light of our decision in

Dutro Used Cars, Inc. v. Spohn, 5th Dist. Muskingum No. CT08-0047, 2009-Ohio-2912,

we agree, and therefore we reverse the judgment of the trial court.

{¶10} Appellant argues the trial court improperly reduced the interest rate from

the contractual rate of 21.0% to the statutory rate. Ohio Revised Code Section 1343.03

states in pertinent part:

(A) In cases other than those provided for in sections 1343.01 and

1343.02 of the Revised Code, when money becomes due and

payable upon any bond, bill, note, or other instrument of writing,

upon any book account, upon any settlement between parties,

upon all verbal contracts entered into, and upon all judgments,

decrees, and orders of any judicial tribunal for the payment of

money arising out of tortious conduct or a contract or other

transaction, the creditor is entitled to interest at the rate per annum

determined pursuant to section 5703.47 of the Revised Code,

unless a written contract provides a different rate of interest in Muskingum County, Case No.CT2013-0013 4

relation to the money that becomes due and payable, in which case

the creditor is entitled to interest at the rate provided in that

contract. Notification of the interest rate per annum shall be

provided pursuant to sections 319.19, 1901.313, 1907.202,

2303.25, and 5703.47 of the Revised Code. (Emphasis added.)

{¶11} As we stated above, we have previously held when a written contract

contains a legal rate of interest then the rate should be applied to the judgment. Dutro

Used Cars, Inc., supra, 2009-Ohio-2912, ¶ 9, citing Amer. Gen. Fin., Inc. v. Bauer, 5th

Dist. Delaware No. 00CAG08023, unreported, 2001 WL 498508 (May 4, 2001).

CONCLUSION

{¶12} We therefore sustain appellant’s sole assignment of error. The judgment

of the Muskingum County Court is reversed and this matter is remanded for further

proceedings in accord with this opinion.

By: Delaney, J. and

Hoffman, P.J.

Farmer, J., concur.

HON. PATRICIA A. DELANEY

HON. WILLIAM B. HOFFMAN

HON. SHEILA G. FARMER