Capital One Bank (USA), N.A. v. HeidebrinkCapital One Bank (USA), N.A. v. Heidebrink
James Y. Oh, for appellant.
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DECISION AND JUDGMENT
HANDWORK, J.
{¶ 1} Appellant, Capital One Bank (U.S.A.), N.A. (“Capital One“), filed a complaint on a credit card account against appellee, Jennifer Heidebrink. Heidebrink did not answer the complaint. The Ottawa County Municipal Court granted Capital One‘s motion for default judgment. Capital One was unsatisfied with the judgment and appealed. For the following reasons, we affirm.
{¶ 3} (1) A computer-generated printout titled a “cycle facsimile report” showing a balance due of $895.25, dated through July 25, 2007.
{¶ 4} (2) Two photocopied pages titled “Customer Agreement.”
{¶ 5} (3) A statement of the account dated through December 19, 2006, showing a balance of $559.37
{¶ 6} (4) A statement of the account dated through May 19, 2007, showing a balance of $820.01.
{¶ 7} (5) A document titled “Platinum Invitation” signed in the name of Jennifer Heidebrink.
{¶ 8} The top of the “Platinum Invitation” states in bold: ”YES! I want the Platinum power of the Capital One Platinum MasterCard with a 0% introductory APR on all purchases!”
{¶ 9} Above the signature line, the “Platinum Invitation” states, in very small print: “I have read the IMPORTANT DISCLOSURES and Terms and Conditions enclosed, including the provision relating to Arbitration, and agree to be bound as specified therein. You are authorized to check my credit and employment history.”
{¶ 10} Next to the signature line, the “Platinum Invitation” states: “Please see the Important Disclosures on the back of the letter for rate, fee and other cost information.”
{¶ 12} A section titled “Periodic Rates” relevantly states: “You were told the daily periodic rates when you opened your account. * * * If any other rate changes are made subsequent to your account opening, you will be advised of the new rate.”
{¶ 13} A section titled “Variable Rates” states, “Where and when variable rates apply to your account,” the rate varies according to the LIBOR rate.
{¶ 14} A section titled “Cash Advance Fee Finance Charge” states: “If a cash advance fee applies to your account, you were told the fee when you opened your account.”
{¶ 15} A section titled “Membership Fee” states: “If your account has a membership fee, it was disclosed to you when you opened your account.”
{¶ 16} A section titled “Other Charges” states: “The following charges may be billed to the purchase segment of your account late charge if we do not receive your payment in time for it to be credited to your account by the due date shown on your periodic statement * * * over limit charge if your account exceeds its assigned credit limit, even if we approved the over limit amount, returned check charge if a check is returned to us for any reason, or if we cannot honor your account access checks for any reason * * * . The fee amounts were disclosed to you when you opened your account. If any of these fees are changed subsequent to your account opening, you will be advised of the new fee.”
{¶ 18} The complaint alleged that Heidebrink owed the sum of $1,064.87, which consisted of “$895.25 as evidenced by the attached statement, plus accrued finance charges and/or interest at the contract rate of 20.40% in the sum of $169.62 through May 30, 2008 and an additional sum for interest accumulated from May 30, 2008 to the date of the judgment.” It prayed for additional post-judgment interest at the “contract rate of 20.40% until paid.”
{¶ 19} Capital One filed a motion for default judgment on the amount prayed for in the complaint. The trial court sua sponte ordered Capital One to file a complete itemized statement of the account within 14 days. Capital One complied and submitted Heidebrink‘s account statements from the opening of the account until the filing of the complaint.
{¶ 20} The trial court entered a judgment of default in favor of Capital One and ordered judgment in the amount of $559.37. This amount corresponds to the amount due and owing on the account as of January 19, 2007, when the account first showed the balance was “over limit” and first charged an “over limit fee.” The trial court also ordered statutory post-judgment interest instead of the “contract rate” prayed for by Capital One.
{¶ 22} “Whether the trial court prejudicially erred when ordering plaintiff to produce accounting evidence when granting default judgment.
{¶ 23} “Whether the trial court prejudicially erred by refusing to grant contract interest, late fees, and over-limit fees in default judgment.”
{¶ 24} In its first assigned error, Capital One argues that the trial court should have entered default judgment on the amount reflected in the “final computerized account balance” attached to the complaint instead of ordering it to produce all of the statements on the account.
{¶ 25}
{¶ 26} “If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right of trial by jury to the parties.” (Emphasis added.)
{¶ 27}
{¶ 28} “[A] suit concerning a credit card balance has been held to constitute an action on an account for purposes of
{¶ 29} “An ‘action on an account’ is ‘merely a pleading device used to consolidate several different claims one party has against another.’ AMF, Inc. v. Mravec (1981), 2 Ohio App.3d 29, 31. Such action is ‘founded upon contract and thus a plaintiff must prove the necessary elements of a contract action, and, in addition, must prove that the contract involves a transaction that usually forms the subject of a book account.’ Gabriele v. Reagan (1988), 57 Ohio App.3d 84, 85.” Arthur v. Parenteau (1995), 102 Ohio App.3d 302, 304.
{¶ 30} “It is elementary that in an action on an account, a plaintiff must set forth an actual copy of the recorded account. The records must show ‘the name of the party charged’ and must include the following:
{¶ 31} “(1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum);
{¶ 32} “(2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and
{¶ 34} Pursuant to
{¶ 35} In its second assigned error, Capital One argues that the trial court should have entered default judgment for the amount prayed for in its complaint and the total amount its computerized printout showed due and owing. It specifically challenges the trial court‘s subtraction of late fees and over limit fees and the imposition of statutory interest pursuant to
{¶ 36} Regarding the imposition of the statutory rate of interest, we have held:
{¶ 37} “‘For entitlement to a rate different than the statutory rate of interest to be charged,
{¶ 38} The Ohio Supreme Court has also recently addressed this question. In Minster Farmers Coop. Exchange Co., Inc. v. Meyer, 117 Ohio St.3d 459, 2008-Ohio-1259, which Capital One Bank cites, it held:
{¶ 39} ”
{¶ 40} “* * * [W]e agree with the view put forth by the clear majority of Ohio appellate courts that have addressed the question [of] whether invoices can serve as the written contract required by
{¶ 41} “We agree that an invoice or account statement unilaterally stating interest terms does not meet
{¶ 42} Since the interest rate the plaintiff in Minster sought was not a term of a written contract but was only written on the invoices, the result was the imposition of the statutory rate rather than the rate listed on the invoices. The “placement of an interest rate on invoices constituted no promise * * * and demonstrated no meeting of the minds between the parties.” Id. at ¶ 28. Clearly, an interest rate showing on account statements does not constitute proof that the interest rate was a term of the underlying contract or agreement.
{¶ 43} The same result applies here. Capital One has not submitted any evidence of the interest rate to which Heidebrink assented. Because Capital One did not submit proof that its claimed interest rate of 20.40 percent was a term of an agreed-upon contract, the trial court did not abuse its discretion in imposing the statutory rate pursuant
{¶ 44} Farmers & Merchants State & Sav. Bank v. Raymond G. Barr Enterprises (1982), 6 Ohio App.3d 43, is distinguishable. There, the court awarded default judgment for the amount prayed for in the complaint, a balance due and owing on an account, where a promissory note was the basis of the action on the account. Capital One cites Farmers in support of its contention that the amount due on the account as claimed in the complaint is not “damages” pursuant to
{¶ 45} Still, Capital One argues that it proved a contract, insofar as the documents submitted with the complaint show a “signed offer tendered by Heidebrink; acceptance by the Bank; and the mutual assent to the terms and conditions through use of the credit card.” As reviewed supra, Capital One did not submit any evidence of the “terms and conditions” or “IMPORTANT DISCLOSURES” to which Heidebrink allegedly assented, or any of the terms which were “disclosed” to Heidebrink when the account was opened.
{¶ 46} Capital One also points to the “customer agreement” as evidence of a contract. As reviewed supra, the customer agreement does not state what the fees would be for over limit occurrences or late payments. Instead, each relevant section of the “customer agreement” refers to fees “disclosed” or “told to” the account holder when the account was opened. Capital One has submitted no evidence of what specific fees were disclosed to Heidebrink. The second assignment of error is, therefore, not well-taken.
{¶ 47} The judgment of the Ottawa County Municipal Court is affirmed. Appellant is to pay the costs of this action pursuant to App.R. 24.
JUDGMENT AFFIRMED.
Peter M. Handwork, J.
Mark L. Pietrykowski, J.
Arlene Singer, J. CONCUR.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.