Am. Express Centurian Bank v. Banaie
2010 Ohio 6503
Ohio Ct. App.2010Background
- AmERICAN EXPRESS CENTURIAN BANK filed suit in Mahoning County Court of Common Pleas to collect on Banaie's credit card account; case 08 CV 4812.
- Bank attached a 'Cardmember Agreement' outlining terms of use for the credit card.
- Banaie admitted opening the account and defaulting, but contested the existence of a written contract and claimed he received only an envelope and a card.
- Bank moved for summary judgment; Chao affidavit and attached records stated Banaie used the card and the balance was $31,107.02 plus 5% interest and costs.
- Banaie opposed, arguing lack of personal knowledge, lack of a signed contract, and Civ.R. 10(D) deficiencies; he contended the balance and interest rate were incorrect.
- Trial court granted summary judgment for Bank; judgment amount: $31,357.02 with 5% interest from date of judgment plus costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of a contract (written or implied) governing the account | Bank proved Banaie used the card and opened the account. | No written contract; Banaie received only a card and envelope; dispute over terms. | Implied-in-fact contract established; sufficient to support breach claim. |
| Damages and amount owed | Monthly statements and admissions show a definite balance due. | Disputes amount and terms; evidence insufficient to prove damages. | Uncontroverted evidence supports the amount owed; no genuine issue as to damages. |
| Affidavit sufficiency under Civ.R. 56(E) | Chao affidavit based on personal knowledge and business records; admissible. | Affidavit lacks explicit personal knowledge and accounting process details. | Affidavit complies with Civ.R. 56(E) and admissible. |
| Civ.R. 10(D) attachment requirement and waiver | Account record need not be attached; complaint referenced terms; attachment not fatal. | Failure to attach account or provide reason violates Civ.R. 10(D). | Defendant waived objection by not timely moving for a more definite statement; attachment deficiency not fatal. |
| Concealing unconscionability defense | No unconscionability defense raised in complaint; charge waived on appeal. | Interest rate was unconscionable (new argument). | Waived; cannot raise unconscionability defense for the first time on appeal. |
Key Cases Cited
- Capital One Bank (USA), N.A. v. Heidebrink, 2009-Ohio-2931 (6th Dist. No OT-08-049) (elements of contract action and proof of damages)
- Dunn v. Bruzzese, 172 Ohio App.3d 320 (2007-Ohio-3500) (meeting of the minds and implied contracts)
- Lucas v. Costantini, 13 Ohio App.3d 367 (1983) (implied contracts and circumstantial evidence of agreement)
- Presidential Square Estates Condominium Association v. Slabochova, 2004-Ohio-2936 (7th Dist. No 03 MA 111) (procedure for failure to attach documents; Civ.R. 12(E) as alternative)
- McDonald Cmty. Fed. Credit Union v. Presco, 2004-Ohio-7033 (11th Dist. No. 89T4241) (attachment of account records; procedural vs evidentiary rule)
- Charter One Mortg. Corp. v. Keselica, 2004-Ohio-4333 (9th Dist. No. 04CA008426) (Civ.R. 56(E) affiant competency and evidence basis)