2017 Ohio 5672
Ohio Ct. App.2017Background
- CACH, LLC sued John Donohue in July 2014 on a purchased Fifth Third Bank credit-card account, seeking $13,538.90 plus post-judgment interest.
- CACH submitted authenticated Fifth Third account statements (Oct 2011–Nov 2012), a Fifth Third affidavit (custodian George Hunter) stating the account opened in 2008, last payment in Mar 2012, and assignment to CACH in Nov 2012 with an unpaid balance of $13,538.90.
- CACH submitted its custodian affidavit, a signed bill of sale, and county property records linking Donohue to the address on the statements.
- Donohue opposed summary judgment arguing (1) the cardholder agreement was lost/destroyed so assent to interest/fees is unproven, (2) CACH’s standing and purchase evidence were insufficient, and (3) disputed amount of damages; he produced no contrary evidentiary materials.
- The trial court granted summary judgment for CACH for $13,538.90 plus 3% post-judgment interest.
- The appellate court affirmed liability for the card charges but reversed as to contracted interest and fees, remanding for further proceedings consistent with Minster.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damages — amount claimed (interest & fees) | CACH: account statements and affidavits prove total balance including interest/fees | Donohue: without the cardholder agreement, assent to interest/fees is unproven | Court: liability for card charges affirmed; genuine issue exists for contracted interest/fees — cannot award them without written assent per Minster |
| Liability for charges/use of account | CACH: authenticated statements and custodian affidavit show Donohue opened and used account | Donohue: disputes opening/use but provided no contradictory evidence | Court: CACH proved Donohue incurred the charges; liability for charges affirmed |
| Standing / assignment of debt | CACH: bill of sale and custodian affidavits show assignment/purchase from Fifth Third | Donohue: vaguely disputes standing and purchase proof | Court: affidavits and bill of sale suffice; Donohue offered no rebuttal evidence; standing established |
| Sufficiency of account as evidence (beginning balance) | CACH: October 2011 statement shows beginning (zero) balance and itemized transactions | Donohue: argues missing earlier statements and that beginning balance is unclear | Court: October 2011 statement properly shows a beginning zero balance; no need for earlier statements |
Key Cases Cited
- Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367 (1998) (summary judgment standard and test)
- Minster Farmers Coop. Exchange Co. v. Meyer, 117 Ohio St.3d 459 (2008) (creditor must produce written contract to recover contractual interest rate)
- Gabriele v. Reagan, 57 Ohio App.3d 84 (1988) (requirements for an account to prove amount owed)
- Brown v. Columbus Stamping & Mfg. Co., 9 Ohio App.2d 123 (1967) (formulation of elements for proving an account)