Midland Funding, L.L.C. v. Biehl
2013 Ohio 4150
Ohio Ct. App.2013Background
- Midland Funding filed a collection action on HSBC credit card account xxxx-xxxx-xxxx-4894 for $1,351.02 in February 2012.
- Appellant moved to dismiss in April 2012, arguing Civ.R. 10(D) requirements and lack of attached assignment/contract.
- Trial court denied the motion to dismiss in October 2012; appellant answered in November 2012 denying allegations and Civ.R.10 compliance.
- Midland moved for summary judgment in November 2012; appellant opposed and filed a cross-motion for summary judgment.
- Court granted Midland's summary judgment in January 2013; appellant appealed arguing insufficient proof of assignment and Civ.R.10 noncompliance.
- Appellant's fourth assignment about denial of, and non-ruling on, a separate summary judgment motion was deemed moot; court ultimately affirmed in part, reversed in part, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Civ.R. 10(D) compliance | Midland attached statements showing account holder and balances; assignment not required for pleading. | No attached assignment or contract; Civ.R. 10(D) not satisfied. | First assignment overruled; Civ.R. 10(D) satisfied for pleading purposes. |
| Sufficiency of evidence of assignment for summary judgment | Haag affidavit and account statements prove assignment; bill of sale shows transfer. | Exhibit lacks the accompanying 'purchased receivables' list; insufficient to prove assignment as to the specific account. | Second assignment sustained; summary judgment improper due to lack of clear proof the specific HSBC account was included in the sale. |
| Appellant's rebuttal evidence | Appellant's response and evidence rebut Midlands' affidavit. | Rebuttal not sufficient to negate the assignment evidence. | Rationale relied on in Part II; resulted in reversal on the summary judgment issue (moot as to other assignments). |
| Ruling on appellant's 11-26-12 summary judgment motion | Requested summary judgment based on attached evidence. | Court had not ruled; issues remained moot after partial reversal. | Moot; no independent ruling necessary on that motion. |
Key Cases Cited
- Hudson & Keyse LLC v. Carson, 2008-Ohio-2570 () (assignment proof requires clear linkage to the specific account)
- Washington Mut. Bank, F.A. v. Green, 156 Ohio App.3d 461 (2004-Ohio-1555) (how and when to prove assignment of accounts for summary judgment)
- Capital One Bank v. Nolan, 2008-Ohio-1850 (4th Dist. Washington App.No. 06CA77) (pleading may allege assignment without attaching full contract)
- Asset Acceptance Corp. v. Proctor, 156 Ohio App.3d 60 (2004-Ohio-623) (attachment not required to show basic assigned balance, but must show account basics)
- State Farm Mut. Auto. Ins. Co. v. Loken, 2004-Ohio-5074 (5th Dist. Fairfield No. 04-CA-40) (waiver of Civ.R. 10(D) right when 12(E) not pursued)