Citibank (South Dakota), N.A. v. Perz
191 Ohio App. 3d 575
| Ohio Ct. App. | 2010Background
- Citibank surfaces two credit-card accounts for appellant Julie Perz: $4,285.63 on account 2247 and $9,016.80 on account 6898 as of May 2004.
- On May 12, 2004, appellant sent $1,000 (2247) and $3,000 (6898) via checks payable to Citibank, endorsed as full settlement for each account.
- Letters from appellant’s counsel stated settlement offer; if not accepted, bankruptcy would be pursued; checks were attached to the letters.
- Citibank cashed the checks, applied them to the balances, and continued monthly statements for remaining amounts.
- Citibank filed suit for remaining balances on April 13, 2005; appellant asserted accord and satisfaction as an affirmative defense and counterclaimed for wrongful filing.
- The trial court granted summary judgment for Citibank on the complaint and counterclaim, after adopting appellee’s findings; appellant appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authentication of card-agreement provisions | Citibank offered card agreements (Exs. F–G) to enforce partial-payments. | Exhibits F–G are unsigned, unauthenticated, and not shown to apply to Perz's accounts. | Exhibits F–G not authenticated; summary judgment improper on this ground. |
| Effect of partial-payment provisions | Partial-payment provisions permitted acceptance of restrictively endorsed payments without full satisfaction. | The agreements did not prove binding application to Perz or her accounts. | Partial-payment provisions cannot be enforced without authentication showing applicability to appellant. |
| Existence of a bona fide dispute | There was no genuine dispute as to the balance; debtor did not contest the amounts. | A bankruptcy-related settlement can constitute consideration even without a bona fide dispute. | Lack of dispute not fatal where settlement is supported by consideration; but issues remain about accord applicability. |
| Choice of law and its effect on accord | South Dakota law applies per card agreements; supports valid accord via forbearance and partial payment. | No proper authentication or applicability of SD-law-based terms to Perz; Ohio law controls some aspects. | Authentication and applicability required; SD-law-based accord not established on this record. |
Key Cases Cited
- Allen v. R.G. Indus. Supply, 66 Ohio St.3d 229 (1993) (forbearance in settlement can constitute consideration for accord and satisfaction)
- Dawson v. Anderson, 1997 (Ohio App.3d 9) (absence of prior discussions does not preclude accord and satisfaction)
- Rhoades v. Rhoades, 40 Ohio App.2d 559 (1974) (partial payment without dispute may be insufficient without consideration)
- Discover Bank v. Lammers, 2009-Ohio-3516 (2d Dist.) (need for authentication of agreement attached to motion for summary judgment)