MIDLAND FUNDING LLC, d.b.a. MIDLAND FUNDING DE LLC v. WILLIAM I. FARRELL
APPEAL NO. C-120674
TRIAL NO. 12CV-10765
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
July 24, 2013
2013-Ohio-5509
FISCHER, Judge.
Civil Appeal From: Hamilton County Municipal Court. Judgment Appealed From Is: Affirmed.
William I. Farrell, pro se.
Please note: this case has been removed from the accelerated calendar.
{1} Defendant-appellant William Farrell contests the entry of summary judgment for plaintiff-appellee Midland Funding LLC (“Midland“) on its claim to collect an unpaid balance due on a credit-card account. Because we determine that Midland was entitled to judgment as a matter of law on its action on account, we affirm.
{2} Midland alleged in its complaint that it had acquired all the rights, title, and interest in Farrell‘s credit-cаrd account with Chase Bank, and that Farrell owed $8,331.05. In his answer, Farrell denied the allegations and asserted as a defense that Midland was not the proper party in interest to bring suit. Midland then moved for summary judgment, supporting its motion with the affidavits of April Crandall and Martin Lavergne, a redacted bill of sale between Chase Bank and Midland, and account statements dated from late October 2008, with a starting balance of $6,367.99, to April 2010, which contained Farrell‘s name and an account number ending in 9263.
{3} Crandall averred that she was a legal specialist for the servicer of the account at issue, Midland Credit Management, Inc., who had access to Midland‘s records. Crandall averred the following:
Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title, and interest to defendant‘s CHASE BANK USA, N.A. account XXXXXXXXXXXX9263 (MCM Number [redacted]) (hereinafter “thе account“). I have access to and have reviewed the records pertaining to the account
and am authorized to make this affidavit on plaintiff‘s behalf.
{4} Crandall also stated in her affidavit that Farrell оwed $8,331.05 on the account. Lavergne averred that he was an officer of JPMorgan Chase Bank, N.A., and that Chase Bank sold a pool of charged-off accounts to Midland. Finally, the bill of sale provided, in part, thаt Chase Bank had assigned “all rights, title and interest * * * in and to those certain receivables, judgments or evidences of debt described in the Final Data File entitled (Account‘s Primary Final Name) attached hereto and madе part hereof for all purposes.” The “Final Data File” referenced as an attachment to the bill of sale was never filed with the trial court.
{5} In response to Midland‘s motion for summary judgment, Farrell filed an affidavit rеquesting more time to complete discovery, averring in part that more discovery was needed on the issue of Midland‘s standing to bring suit. Farrell submitted no evidence of any kind to dispute that his account with Chase Bank had beеn assigned to Midland. The trial court denied Farrell‘s request for more discovery and granted summary judgment for Midland.
{6} In a single assignment of error, Farrell contends that the trial court erred in granting summary judgment for Midland. Farrell specificаlly argues that the trial court erred in not allowing him more time to conduct discovery, and in relying on the affidavits of Crandall and Lavergne because neither allegedly properly authenticated the records аttached to Midland‘s motion, nor did they establish a valid chain of assignment.
{7} Under
{8} We review a trial court‘s grant of summary judgment de novo. E.g., Jorg v. Cincinnati Black United Front, 153 Ohio App.3d 258, 2003-Ohio-3668, 792 N.E.2d 781 (1st Dist.).
Failure to Object to Authenticity of Documents
{9} As to Farrell‘s claim that the account statements and bill of sale were not properly authenticated, Farrell never objected to the authenticity of these records at the trial-court level, and therefore, he has waived all but plain error on appeal. See, e.g., Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 436-437, 659 N.E.2d 1232 (1996). The plain error doctrine is not favored in civil cases, and it should only be аpplied in “the extremely rare case involving exceptional
Civ.R. 56(F) Motion
{10} Farrell also argues that thе trial court erred in overruling his
{11} In his
{12} Farrell, however, had more than three months in which to initiate discovery upon Midland prior to the filing of Midland‘s summary-judgment motion, during which time Farrell was served with, and responded to, Midland‘s discovery requests. Farrell did nothing to advance the discovery he argued was needed, prior to his
Existence of a Valid Assignment Agreement
{13} In order to establish a prima facie case for money owed on an account, Midland must show the following:
[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.
(Internal quotations omitted.) See Gabriele v. Reagan, 57 Ohio App.3d 84, 87, 566 N.E.2d 684 (12th Dist.1988).
{14} Midland, as an assignee, also must establish the existence of a valid assignment agreemеnt. See Capital Fin. Credit, LLC v. Mays, 191 Ohio App.3d 56, 2010-Ohio-4423, 944 N.E.2d 1184, ¶ 6 (1st Dist.); Zwick & Zwick v. Suburban Constr. Co., 103 Ohio App. 83, 84, 134 N.E.2d 733 (8th Dist.1956). To establish the existence of a valid assignment agreement for purposes of summary judgment, courts have required more than an averment by an assignee that it has acquired all rights, title, and interest in the acсount. See EMCC Invest. Ventures, LLC v. Rowe, 11th Dist. Portage No. 2011-P-0053, 2012-Ohio-4462, ¶ 26 (evidence insufficient to establish chain of title on an account where the alleged assignee presented an affidavit of an employee who averred that the assignee had acquirеd all rights, title, and interest in the account, but no bill of sale or similar document detailing the terms of the assignment were presented).
{15} In this case, the trial court properly granted summary judgment to Midland. Midland produced evidenсe in the form of affidavits on all elements of an action on an account. Crandall‘s affidavit contained the unequivocal and uncontradicted statement that Midland was the successor in interest to Farrell‘s аccount and that Farrell owed $8,331.05. The affidavit further contained the last four digits of Farrell‘s account number, which matched the last four digits of the account number on the specific account statements with Farrell‘s name on them. Crandall‘s affidavit and the account statements, together with Lavergne‘s affidavit and the bill of sale, were sufficient to establish the absence of any genuine issues of material fact as to the elements of Midland‘s claim.
{16} Farrell then failed to meet his reciprocal burden as the nonmoving party to set forth specific factual evidence showing a genuine issue of material fact. See Dresher, 75 Ohio St.3d at 293; see also Gabriele, 57 Ohio App.3d at 87. Because he did not submit any evidence permitted under
{17} Because we determine that summary judgment was properly granted to Midland by the trial court, we overrule Farrell‘s assignment of error. The judgment of the trial court is affirmed.
Judgment affirmed.
HILDEBRANDT, P.J., concurs.
CUNNINGHAM, J., dissents.
CUNNINGHAM, J., dissenting,
{18} Because Midland did not establish that it is the assignee of Farrell‘s credit-cаrd account, I respectfully dissent.
{19} When, as here, a plaintiff brings an action on an account obtained from another entity, it must “allege and prove the assignment.” Worldwide Asset Purchasing, L.L.C. v. Sandoval, 5th Dist. Stark No. 2007-CA-00159, 2008-Ohio-6343, ¶ 26, quoting Zwick v. Zwick, 103 Ohio App. 83, 84; see also Capital Fin. Credit, 191 Ohio App.3d 56, 2012-Ohio-4423, 944 N.E.2d 1184, at ¶ 6 (holding that an assignee bringing an aсtion on an account must establish the existence of a valid assignment agreement).
{20} Midland claims that it was the purported assignee of Farrell‘s credit-card account. Midland, as a party seeking summary judgment on its own claim, bears the burden of affirmatively demonstrating as a matter of law that there are no genuine issues of material fact with respect to every essential element of its claim. See
{21} Here, Midland has failed to establish an essential element of its claim: that Farrеll‘s account was among those assigned to Midland. See Hudson & Keyse, LLC v. Yarnevic-Rudolph, 7th Dist. Jefferson No. 09 JE 4, 2010-Ohio-5938, ¶ 24. Crandall‘s affidavit states only that Midland is the current owner of Farrell‘s account. It does not describe when or under what terms Midland acquired the account. Lavеrgne‘s affidavit and the one-page, redacted bill of sale establish that on November 28, 2011, Midland became the assignee of Chase Bank‘s interest in “certain receivables, judgments or evidences of debt.” But the list identifying those accounts—the Final Data File—was never filed with the trial court. Thus Midland did not present any evidence to the trial court that Farrell‘s agreement was among the accounts assigned to Midland by Chase Bank.
{22} Since a genuine issue of material fact remains as to whether Farrell‘s account was among those properly assigned to Midland, an essential element of its claim, I would reverse the trial court‘s grant of summary judgment, and remand this case for further proceedings.
Please note: The court has recorded its own entry on the date of the release of this opinion.