Discover Bank v. SchieferDiscover Bank v. Schiefer
Rendered on June 29, 2010
Weltman, Weinberg & Reis Co., L.P.A., Rosemary Taft Milby, and Matthew G. Burg, for appellee.
Kathie E. Schiefer, pro se.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1} Kathie E. Schiefer, defendant-appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court denied appellant‘s motion for summary judgment and granted the motion for default judgment filed by Discover Bank (“Discover“), plaintiff-appellee.
{¶2} On June 18, 2009, Discover filed a complaint, naming appellant as defendant and seeking to collect on $15,675.32 in credit card debt allegedly owed by
{¶3} On November 2, 2009, Discover filed a motion for default judgment asserting that, although appellant had filed several documents in the case, she had failed to file an answer. On November 4, 2009, appellant filed a motion for summary judgment. In her motion, appellant indicated that she had initiated an arbitration action in Arizona against Discover using an alleged “arbitration board,” R.G. Services, L.L.C., which is registered in New Mexico, and Discover failed to respond. Appellant attached the alleged arbitration award, in which the arbiter awarded appellant $20,050,000.
{¶4} On December 8, 2009, the trial court issued a decision and entry in which it denied appellant‘s motion for summary judgment and granted Discover‘s motion for default judgment. In denying appellant‘s motion for summary judgment, the trial court called appellant‘s alleged arbitration award a “complete and total sham” with no binding effect on Discover whatsoever, adding that “Defendant must really think that this Court is stupid.” In granting Discover‘s motion for default judgment, the trial court found that, while appellant had filed numerous documents in the matter, she never filed an answer. Appellant appeals the judgment of the trial court, asserting the following assignments of error:
[I.] The court granted a default judgment to Plaintiff on the erroneous belief that Defendant did not file a response to Plaintiff‘s complaint and without Plaintiff providing the burden
of proof to support the complaint. Defendant filed a verified answer and response with the Clerk of Courts of Franklin County Court of Common Pleas on July 20, 2009 at 11:02 a.m. as a Sworn Notice. [II.] The court denied Defendant the right to contract by disregarding the only valid evidence and legal contract entered into this case. By disregarding the contract, the court violated Defendant‘s due process rights.
[III.] The court acted without authority or jurisdiction over the contract. The court has the authority to hear the case but not the authority to give an opinion on or rewrite a valid and legal contract in force between two parties.
[IV.] The court denied Defendant‘s right to an administrative process without a tribunal. The court disregarded the alternative process chosen by Defendant and agreed upon by Plaintiff in our contract. The court failed to uphold the decision and enforce the award issued by the impartial arbitration board by denying Defendant‘s Motion for Summary Judgment.
[V.] The judge did not faithfully adhere to his oath of office in his decisions by overlooking the frivolous conduct of Plaintiff. The court allowed the case to continue even though evidence was submitted confirming Defendant is the victim and granted Plaintiff a default judgment; thereby denying Defendant her due process. The judge exhibited a pattern of behavior in a manner that prevented and hindered Defendant from receiving a fair and impartial administration of justice.
{¶5} In her first assignment of error, appellant argues that the trial court erred when it granted Discover‘s motion for default judgment. An appellate court reviews a trial court‘s decision to grant or deny a motion for default judgment under an abuse of discretion standard. Domadia v. Briggs, 11th Dist. No. 2008-G-2847, 2009-Ohio-6510, ¶19; Natl. City Bank v. Shuman, 9th Dist. No. 21484, 2003-Ohio-6116, ¶6. An abuse of discretion is more than an error of law or judgment; it implies that the court‘s attitude is
{¶6}
When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply in writing or orally to the court therefore[.]
{¶7} The Supreme Court of Ohio has noted that “[d]efault, under * * *
{¶8} Under the civil rules, only three types of “pleadings” are allowed: complaints, answers, and replies.
{¶9} Although it is clear that appellant did not file any pleading purporting to be an “answer,” appellant maintains that her July 20, 2009 pleading entitled “Motion to Dismiss with Prejudice” constituted an answer. More specifically, appellant seems to be asserting that the exhibits entitled “Sworn Notice and Claim” and “Sworn Notice Addendum and Restitution Contract,” which were attached to the motion to dismiss, constituted an answer. However, we find none of these documents constituted an answer. Initially, with regard to the motion to dismiss itself, the motion consists of only a few sentences and a list of attached exhibits. What little text the motion does include asserts that dismissal was warranted because Discover committed fraud against appellant and admitted to such fraud when it failed to appear and participate in the arbitration proceedings, resulting in an arbitration determination in her favor by default. In no way do these allegations directly or indirectly respond to the allegations in Discover‘s complaint, and they do not involve challenges to the jurisdiction of the trial court under the “otherwise defend” provisions in
{¶10} With regard to the “Sworn Notice and Claim” and “Sworn Notice Addendum and Restitution Contract,” which were attached to the motion to dismiss, both of these documents contained statements that generally disputed the credit card debt at issue. However, we find these documents also could not have constituted an answer. We first note that these documents were not filed as independent pleadings in the case, but were attached as exhibits to the original pleading, which, as explained above, was a motion to dismiss based upon fraud and Discover‘s failure to participate in arbitration. Furthermore, neither document appears to have been created for purposes of answering Discover‘s
{¶11} In addition,
{¶12} Importantly, the “Sworn Notice” documents failed to comply with the Ohio civil rules in numerous respects. The “Sworn Notice” documents individually contained no caption as required by
{¶13} We will address appellant‘s second, third, and fourth assignments of error together, as they are related. Although somewhat unclear, all three of these assignments of error appear to contest the trial court‘s failure to recognize the arbitration decision appellant obtained, as well as “the contract” between the parties. Appellant maintains
{¶14} We disagree with appellant‘s contentions. Appellant indicates that she initiated an arbitration action in September 2009 in Arizona against Discover using an alleged “arbitration board” registered in New Mexico, and Discover failed to appear in or respond to the action. In her motion for summary judgment, appellant attached the alleged arbitration award, in which the alleged arbiter awarded appellant $20,050,000 against Discover. The precise basis upon which the alleged arbitration board made its generous damages award is elusive, but it may have been based upon the premise that appellant mailed several “notices” to Discover that purported to modify the terms of the contract between the parties or create new contracts between the parties, and Discover never responded to any of these “notices.” In the trial court‘s December 8, 2009 judgment, the trial court called appellant‘s alleged arbitration award a “complete and total sham” with no binding effect on Discover whatsoever, and added that “Defendant must really think that this Court is stupid.”
{¶15} We concur with the trial court‘s findings. Both the “notices” mailed to Discover, as well as the arbitration process initiated by appellant, were fraudulent attempts to evade the legal consequences of her credit card debt. With regard to the arbitration process, page 13 of the Cardmember Agreement provides that arbitration must be conducted by either the American Arbitration Association or the National Arbitration Forum, and specifically indicates that no other arbitration forum will be permitted. Thus, appellant‘s invocation of R.G. Services, L.L.C., to arbitrate the dispute was impermissible. Insofar as appellant may be arguing that the parties formed a new contract, altered the
{¶16} Appellant argues in her fifth assignment of error that the trial judge exhibited bias against her and was not fair and impartial. However, the Chief Justice of the Supreme Court has exclusive jurisdiction to determine a claim that a common pleas court judge is biased or prejudiced, and common pleas litigants must bring any challenge to the trial judge‘s objectivity by way of the procedure set forth in
{¶17} Accordingly, appellant‘s five assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER and FRENCH, JJ., concur.
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