Unifund CCR, L.L.C. v. Barden

2020 Ohio 215

• Court: Ohio Court of Appeals
• Decided: January 22, 2020
• Docket: 19 CAE 05 0036
• Status: Published

Opinion

[Cite as Unifund CCR, L.L.C. v. Barden, 2020-Ohio-215.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

UNIFUND CCR, LLC : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JAIME A. BARDEN : Case No. 19 CAE 05 0036 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 18 CV H 05 0269

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 22, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DAVID A. BADER JAIME A. BARDEN, PRO SE P.O. Box 42348 709 Slate Hollow Court Cincinnati, OH 45242 Powell, OH 43065 Delaware County, Case No. 19 CAE 05 0036 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant, Jaime A. Barden, appeals the April 29, 2019

judgment entry of the Court of Common Pleas of Delaware County, Ohio, granting

summary judgment to Plaintiff-Appellee, Unifund CCR, LLC.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On May 29, 2018, appellee filed a complaint against appellant for non-

payment on a credit card issued by Citibank, N.A. The complaint alleged breach of

contract, claims on account, promissory estoppel, and unjust enrichment.

{¶ 3} On December 7, 2018, appellee filed a motion for summary judgment,

claiming genuine issues of material fact did not exist. By judgment entry filed April 29,

2019, the trial court granted the motion, finding appellee had established the right to

recover damages under its breach of contract claim and was entitled to judgment in the

amount of $25,110.85 plus interest and costs.

{¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶ 5} "THE TRIAL COURT ERRED BY GRANTING PLAINTIFF'S MOTION FOR

SUMMARY JUDGMENT BEFORE DISCOVERY WAS COMPLETE, OR DUE."

II

{¶ 6} "THE TRIAL COURT ERRED IN GRANTING MOTION FOR SUMMARY

JUDGMENT WITH UNAUTHENTICATED DOCUMENTATION. CASE IS NOT TIME

BARRED. CHAIN OF TITLE NOT COMPLETE." Delaware County, Case No. 19 CAE 05 0036 3

III

{¶ 7} "NO AGREEMENT PRESENTED ATTACHING DEFENDANT TO

ACCOUNT, NO SIGNATURE ON DOCUMENTS, NO PROOF OF USE BY

DEFENDANT."

{¶ 8} All three assignments of error challenge the trial court's granting of summary

judgment to appellee. Summary Judgment motions are to be resolved in light of the

dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex

rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):

Civ.R. 56(C) provides that before summary judgment may be

granted, it must be determined that (1) no genuine issue as to any material

fact remains to be litigated, (2) the moving party is entitled to judgment as

a matter of law, and (3) it appears from the evidence that reasonable minds

can come to but one conclusion, and viewing such evidence most strongly

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

against whom the motion for summary judgment is made. State ex. rel.

Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d

466, 472, 364 N.E.2d 267, 274.

{¶ 9} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13: Delaware County, Case No. 19 CAE 05 0036 4

It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial.

Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986). The standard for granting summary judgment is

delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party

seeking summary judgment, on the ground that the nonmoving party cannot

prove its case, bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate

the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its

initial burden under Civ.R. 56 simply by making a conclusory assertion the

nonmoving party has no evidence to prove its case. Rather, the moving

party must be able to specifically point to some evidence of the type listed

in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

no evidence to support the nonmoving party's claims. If the moving party

fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the

nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

set forth specific facts showing there is a genuine issue for trial and, if the

nonmovant does not so respond, summary judgment, if appropriate, shall

be entered against the nonmoving party." The record on summary Delaware County, Case No. 19 CAE 05 0036 5

judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.

{¶ 10} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).

{¶ 11} We will review the three assignments of error within the framework of these

standards.

{¶ 12} In the first assignment of error, appellant claims the trial court erred in

granting summary judgment to appellee before discovery was complete or due. We

disagree.

{¶ 13} By scheduling entry filed October 11, 2018, the trial court set the discovery

cutoff date for March 8, 2019, with dispositive motions filed by March 29, 2019. The trial

court filed its decision on April 29, 2019, after the discovery cutoff date. The record does

not contain any indication that appellant requested an extension to conduct additional

discovery. If appellee failed to respond to requested discovery, appellant did not file a

motion to compel to bring the matter to the trial court's attention.

{¶ 14} Upon review, we find the trial court did not rule prior to discovery being

complete or due.

{¶ 15} Assignment of Error I is denied.

II Delaware County, Case No. 19 CAE 05 0036 6

{¶ 16} In the second assignment of error, appellant claims the trial court erred in

granting summary judgment to appellee with unauthenticated documentation. We

{¶ 17} Appellant argues appellee did not prove it was the real party in interest and

the trial court should have stricken the affidavit of Heather Rodgers.

{¶ 18} In her affidavit attached to appellant's motion for summary judgment, Ms.

Rodgers averred she was appellee's authorized representative, she was a custodian of

the records, and "all records are kept within my immediate supervision." Rodgers aff. at

¶ 1 and 5. She stated she was familiar with all of the records held by appellee "which

includes contract and/or accounts that have been assigned to Plaintiff when the amounts

owed under the contract and/or account to the original creditor are due and owing and

charged off by the original creditor." Id. at ¶ 3. She averred her statements were based

upon her personal knowledge and her review "of the business records of Citibank, which

were maintained by them in the regular course of business" and were provided to

appellee. Id. at ¶ 6. She stated appellant's account was assigned to appellee as

evidenced by attached Exhibit 1 "which are true and accurate copies and were obtained

and maintained in the normal and ordinary course of Plaintiff's business." Id. at ¶ 9.

{¶ 19} Exhibit 1 contains assignments from Citibank, N.A. to Pilot Receivables

Management, LLC, from Pilot to Distressed Asset Portfolio III, LLC, and from Distressed

to appellee. Each assignment contains an attachment listing appellant's name and

account number [redacted to comply with Sup.R. 45(D)]. Attached to the affidavit as

Exhibit 2 are credit card statements issued by Citi evidencing the amount due and owing. Delaware County, Case No. 19 CAE 05 0036 7

{¶ 20} In its judgment entry filed April 29, 2019, the trial court thoroughly analyzed

the applicable rules and case law and concluded the documents satisfied Evid.R. 803(6)

and thus were properly authenticated. We concur with the trial court's analysis and

decision. As noted by the trial court, appellant did not produce any evidence to indicate

the affidavit or the attached documents were not trustworthy.

{¶ 21} Upon review, we find the trial court relied on properly authenticated

documents in granting summary judgment to appellee.

{¶ 22} In the third assignment of error, appellant claims the trial court erred in

granting summary judgment to appellee because no documentation was presented

attaching appellant to the account i.e., no showing of a signature or proof of use. We

{¶ 23} Via the affidavit of Ms. Rodgers with the attached exhibits, appellee

presented evidence of a credit card account bearing appellant's name and statements

from 2015 bearing appellant's current address and an outstanding balance. Ms. Rodgers

averred the account was opened in January 2000, and appellant "utilized services from

the original creditor as late as 09/10/2015, which represents the last activity associated

with the Defendant." Rodgers aff. at ¶ 7 and 8. Appellant used the account or authorized

its use to charge amounts to acquired goods and/or services for fifteen years. As stated

by our colleagues from the Twelfth District in CACH, LLC v. Donohue, 12th Dist. Warren

No. CA2016-08-083, 2017-Ohio-5672, ¶ 13: Delaware County, Case No. 19 CAE 05 0036 8

The case law in Ohio is clear that the issuance and use of a credit

card creates a legally binding agreement between the issuer and the user

of a credit card. See Citibank v. Ebbing, 12th Dist. Butler No. CA2012-12-

252, 2013-Ohio-4761, ¶ 54. Accordingly, a written contract is not necessary

for a credit card agreement to be binding. Id.

{¶ 24} As further explained in Citibank, N.A. v. Hyslop, 10th Dist. Franklin No.

12AP-885, 2014-Ohio-844, ¶ 11:

Thus, "a creditor need not produce a signed credit card application

to prove the existence of a legally binding agreement because the credit

card agreement created one." Discover Bank v. Poling, 10th Dist. No.

04AP-1117, 2005-Ohio-1543, ¶ 17. Further, "[t]o constitute an account, 'it

is not necessary that every transaction that has transpired between the

parties be included during the entire existence of their business

relationship.' " Ohio Receivables, LLC v. Dallariva, 10th Dist. No. 11AP-

951, 2012-Ohio-3165, ¶ 30, quoting Wolf Automotive v. Rally Auto Parts,

Inc., 95 Ohio App.3d 130, 134, 641 N.E.2d 1195 (10th Dist.1994).

{¶ 25} Appellant did not allege or provide any evidence of identity theft or forgery.

{¶ 26} Upon review, we find the trial court did not err in granting summary judgment

to appellee.

{¶ 27} Assignment of Error III is denied. Delaware County, Case No. 19 CAE 05 0036 9

{¶ 28} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.

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