Citibank v. EckmeyerCitibank v. Eckmeyer
O P I N I O N
Civil Appeal from the Court of Common Pleas, Case No. 2007 CV 0789.
Judgment: Affirmed.
Thomas L. Rosenberg and Paul W. Lombardi, Roetzel & Andress, L.P.A., 155 East Broad Street, 12th Floor, Columbus, OH 43215 (For Plaintiff-Appellee).
James E. Banas and Paul R. Hoffer, 3076 Wadsworth Road, Norton, OH 44203 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Keith W. Eckmeyer, files this timely appeal from the judgment of the Portage County Court of Common Pleas granting summary judgment in favor of appellee, Citibank (South Dakota), NA. For the reasons discussed below, we affirm the judgment of the trial court.
{¶2} On June 13, 2007, Citibank filed a complaint against Eckmeyer alleging that Eckmeyer owed $19,448.29 as a result of defaulting on his credit card agreement. It attached to its complaint a copy of a statement demonstrating Eckmeyer’s name, his
{¶3} Eckmeyer filed an answer instanter denying Citibank’s allegations and raising affirmative defenses, including the following: (1) failure to comply with
{¶4} Thereafter, Eckmeyer filed a motion to dismiss the complaint based upon Citibank’s failure to prosecute claims as an unregistered foreign entity, pursuant to
{¶5} On April 22, 2008, Citibank moved for summary judgment. In support of its motion, Citibank attached copies of the following: monthly accounting statements, detailing account activity from January 2000 through September 2007; the credit card agreement; an affidavit from Kathy Rizor, the records custodian, averring that there is an unpaid balance on Eckmeyer’s account of $19,448.29 plus interest on the principle balance at the rate of 24.99% per annum from the date of judgment, and court costs; and a certificate of the merger between Universal Bank and Citibank, effective January 7, 2002.
{¶6} Eckmeyer filed a brief and affidavit in opposition to Citibank’s motion for summary judgment. Eckmeyer argued that Citibank (1) failed to prove the terms of the contract, (2) failed to accept his compromised payment of $7,000, and (3) does not have standing to seek redress in the courts of Ohio, pursuant to
{¶8} Eckmeyer filed a timely appeal and, as his first assignment of error, alleges:
{¶9} “The trial [c]ourt erred to the prejudice of Defendant-Appellant in overruling his
{¶10} An action on an account, as in the instant case, is a suit claiming the balance of the account due to one of the parties “‘as a result of (a) series of transactions,‘” not to each item of the account. Citibank (South Dakota), N.A. v. Lesnick, 11th Dist. No. 2005-L-013, 2006-Ohio-1448, at ¶8. (Citation omitted.) “The purpose of an action on an account is ‘to avoid the multiplicity of suits necessary if each transaction between the parties (or item on the account) would be construed as constituting a separate cause of action.‘” Id. (Citation omitted.)
{¶11} Although Ohio is a notice-pleading state,
“{¶12} (1) Account or written instrument. When any claim *** is founded on an account or other written instrument, a copy of the account or written instrument must be attached to the pleading. If the account or written instrument is not attached, the reason for the omission must be stated in the pleading.”
{¶13} Eckmeyer argues that Citibank‘s complaint was vague and ambiguous, and the attached statement failed to comply with
{¶15} Eckmeyer alleges that Citibank failed to attach to its complaint a copy of the agreement upon which it relied. However, as previously stated, the instant case involves a suit concerning a credit card balance and, therefore, is an action on an account. Capital One Bank v. Toney, 7th Dist. No. 06 JE 28, 2007-Ohio-1571, at ¶34. (Citations omitted.) As a result, Citibank was required to comply with
{¶16} Although “account” is not defined in
{¶17} “‘[A]n account must show the name of the party charged and contain: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum); (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items which permits the calculation of the amount claimed to be due.‘” Citibank (South Dakota), N.A. v. Lesnick, 2006-Ohio-1448, at ¶9. (Citations omitted.)
{¶18} As noted by the Fourth Appellate District, “Rule 10(D)(1) does not require a plaintiff to attach ‘a complete copy of the account’ ***, nor does it require a creditor to
{¶19} In the instant case, Citibank attached an account to its complaint that identified Eckmeyer‘s name, his account number, the interest rate, and the amount purported due. As such, contrary to Eckmeyer‘s assertion, he was presented with adequate information to put him on notice and to allow him to file a proper responsive pleading. See Capital One Bank v. Nolan, 2008-Ohio-1850, at ¶12.
{¶20} Additionally, while the attached account does not have a beginning balance of zero, it is a “provable sum.” Furthermore, Eckmeyer did not dispute the existence of such account nor did he present evidence illustrating such account was incorrect.
{¶21} Therefore, Citibank satisfied the pleading requirements as set forth in
{¶22} Eckmeyer‘s second assignment of error maintains:
{¶23} “The trial [c]ourt erred to the prejudice of Defendant-Appellant in overruling his
{¶24} At the outset, we note that Eckmeyer filed a motion to dismiss pursuant to
{¶25} Even though Eckmeyer failed to properly raise the
{¶26} “The doctrine of federal preemption is rooted in the Supremacy Clause, which provides that ‘the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.’
{¶27} As stated in
{¶28} It is undisputed that Citibank is a national bank. “Business activities of national banks are controlled by the National Bank Act (NBA or Act),
{¶29} In determining that application of
{¶30} Eckmeyer argues that under
{¶31} Further, we recognize that while
{¶32} In MBNA Am. Bank, N.A. v. McArdle, 6th Dist. No. L-06-1319, 2007-Ohio-2033, at ¶15-19, the Sixth Appellate District determined that since the issuer of a credit card was a national bank, the prohibitions against maintaining an action by a foreign corporation under
{¶33} Additionally,
{¶34} “(a) Authority of national banks. A national bank may make, sell, purchase, participate in, or otherwise deal in loans and interests in loans that are not secured by liens on, or interests in, real estate, subject to such terms, conditions, and limitations prescribed by the Comptroller of the Currency and any other applicable Federal law.
{¶35} “***
{¶36} “(d) Applicability of state law. (1) Except where made applicable by Federal law, state laws that obstruct, impair, or condition a national bank‘s ability to fully exercise its Federally authorized non-real estate lending powers are not applicable to national banks.
{¶37} “(2) A national bank may make non-real estate loans without regard to state law limitations concerning:
{¶38} “(i) Licensing, registration (except for purposes of service of process), filings, or reports by creditors[.]” (Emphasis added.)
{¶39} Based on the foregoing, this court determines that under the Supremacy Clause a national bank is not required to comply with the licensing requirements as stated in
{¶40} Eckmeyer‘s second assignment of error is without merit.
{¶42} “The trial court erred to the prejudice of Defendant-Appellant in granting Plaintiff-Appellee‘s
{¶43} In order for a motion for summary judgment to be granted, the moving party must prove:
{¶44} “(1) [N]o genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made.” Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385. (Citation omitted.)
{¶45} Summary judgment will be granted if “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of facts, if any, *** show that there is no genuine issue as to any material fact ***.”
{¶46} If the moving party meets this burden, the nonmoving party must then provide evidence illustrating a genuine issue of material fact, pursuant to
{¶47} “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials
of the party‘s pleadings, but the party‘s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.” (Emphasis added.)
{¶48} Summary judgment is appropriate pursuant to
{¶49} Appellate courts review a trial court‘s entry of summary judgment de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. “De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial.” Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 383, citing Dupler v. Mansfield Journal (1980), 64 Ohio St.2d 116, 119-120.
{¶50} First, Eckmeyer claims that Citibank failed to establish the terms of the contract and failed to establish “if there was a meeting of the minds.” We disagree.
{¶51} As previously noted, Citibank attached to its motion for summary judgment a copy of the credit card agreement along with account statements demonstrating Eckmeyer‘s use of the issued card. This evidentiary material attached to Citibank‘s motion for summary judgment established a prima facie case on its account. See Chase Bank USA, NA v. Lopez, 8th Dist. No. 91480, 2008-Ohio-6000, at ¶12-13. In addition, Eckmeyer‘s use of the issued card created a legally binding contract. See Calvary SPV I, LLC v. Furtado, 10th Dist. No. 05AP-361, 2005-Ohio-6884, at ¶18. (Citation omitted.) In fact, the credit card agreement provides, in part:
{¶52} “You agree to use your account in accordance with this Agreement. This Agreement is binding on you unless you cancel your account within 30 days after receiving the card and you have not used or authorized use of the card.”
{¶53} In addition, Eckmeyer failed to put forth evidence refuting that he made charges on the account or made payments on said account.
{¶54} Second, Eckmeyer argues that Citibank failed to comply with
{¶55}
{¶56} As the trial court stated:
{¶57} “Eckmeyer also asserts that there was no mutual meeting of the minds between himself and Citibank on the interest charged. On the other hand, Eckmeyer offers no evidence of what those charges should be. The statements sent to Eckmeyer by MasterCard, which Eckmeyer‘s memorandum accepts largely undisputed, alter the interest charges, sometimes monthly. In June 2001, the interest rate was 10.900
{¶58} Furthermore, a review of the credit card agreement reveals that the annual percentage rate (APR) “may automatically increase to the Default APR (which is the LIBOR Rate plus 26.99%) if you fail to make a payment to us when due, exceed your credit line, or make a payment to us that is not honored.” As such, the evidence supports the trial court‘s decision of awarding contractual interest at a rate of 24.99% per annum since a written contract was in existence illustrating the “rate of interest in relation to the money that [became] due and payable.”
{¶59} Eckmeyer further alleges that he contacted Citibank to negotiate settlement of the outstanding account, and Citibank agreed to settle said account for the amount of $7,000. To support this allegation, Eckmeyer attached a self-serving affidavit to his memorandum in opposition of summary judgment, which is insufficient to create a genuine issue of material fact. In addition, the affidavit failed to identify the individual whom Eckmeyer contacted and whether that individual had authority to settle a debt. Further, Eckmeyer conceded that he received a letter from Citibank rejecting his offer to settle the account.
{¶61} After reviewing the evidence in a light most favorable to Eckmeyer, we determine the trial court did not err in granting Citibank‘s motion for summary judgment. Therefore, Eckmeyer‘s third assignment of error is without merit.
{¶62} The judgment of the Portage County Court of Common Pleas is hereby affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O‘TOOLE, J., concurs with Concurring Opinion.
COLLEEN MARY O‘TOOLE, J., concurs with Concurring Opinion.
{¶63} I write separately from the majority, as I believe the trial court erred in failing to grant Mr. Eckmeyer‘s motion for definite statement.
{¶64} Nevertheless, the error was harmless, pursuant to
{¶65} I concur.