0,2 - supreme court of ohio certificate of service ... advanced in jarvis v. first resolution...
TRANSCRIPT
IN THE SUPREME COURT OF OHIO
DUSTIE HOTTENROTH, N.K.A.DUSTIE MILLER,
%?l0,2 ^VG i^
APPEAL NO. 14-1236
Appellee,
V.
ON APPEAL FROM THE CUYAHOGACOUNTY COURT OF COMMON PLEAS,EIGHTH APPELLATE DISTRICT
MIDLAND FUNDING LLC
-and-Court of Appeals Case No. 13-100146
JAVITCH, BLOCK AND RATHBONE,LLP, N.K.A. JAVITCH, BLOCK ANDRA'I'HBONE, LLC
Appellants.
MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTMIDLAND FUNDING LLC
ANAND N. MIRSA (0067594)THE MISRA LAW FIRM, LLC3659 Green Road, Suite 100Beachwood, Ohio 44122(216) 752-3330Email: [email protected]
ROBERT S. BELOVICH (0024187)9100 South Hills Blvd., Suite 320Broadview Heights, Ohio 44147(440) 838-8883Email: [email protected] Appellee Dustie Hottenroth Miller
JAMES OH (0070325)MARK C. BRNCIK (0089134)(Counsel ofRecord)JAVITCH, BLOCK & RATHBONE, LLC1100 Superior Avenue, 19th FloorCleveland, Ohio 44114(216) 623-0000Email: j oh@j bandr. com
mbrncik@ j bandr. comCounselfor Appellant Javitch, Block &Rathbone, LLC
STEVEN G. JANIK (0021934)CRYSTAL L. MALUCHNIK (0077875)ELLYN TAMULEWICZ MEHENDALE(0063524)(Of Counsel)(Counsel of Record)JANIK LLP9200 South Hills Boulevard, Suite #300Cleveland, Ohio 44147-3521(440) 838-7600 • Fax (440) 838-7601Email: [email protected]
Crystal. Maluchnik@Janiklaw. [email protected]
Counsel foN Appellant Midland Funding LLC
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{552066_2; 0002-3729}CLERK OF ^^UKrREMECOURTOFC
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................................................iii
EXPLANATION OF WHY THIS CASE INVOLVES A QUESTION OF PUBLIC ORGREAT GENERAL INTEREST ..............................................................................................2
STATEMENT OF THE CASE AND FACTS ..........................................................................3
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW .................................................4
1. Proposition of Law No. 1: A claim for breach of a credit card contract accruestivhen a consumer fails to make a required payment ......................................................4
II. Proposition of Law No. 2: A state appellate court must interpret the Fair DebtCollection Practices Act according to its plain terms, and may not require a debtcollector to sue a consumer in his or her place of domicile when the law onlyrequires a debt collector to file suit in the consumer's place of residence . ...................5
IIL Proposition of Law No. 3: An appellate court applying a de novo standard ofreview may not make new findings of fact unsupported by the record ......................... 5
CONCLUSION ........................................................................................................................... 6
CERTIFICATE OF SERVICE .................................................................................................. 7
APPENDIX ...............................................................................................................................8
Opinion and Judgment of the Eighth District Court of Appeals ................................ A l
Journal Entry Denying Motion for Reconsideration ................................................ A20
1552066_2; 0002-37291 ii
TABLE OF AUTHORITIESCases Page
Children's Hosp, v. Ohio Dept. of Pub. lfelfare, 69 Oliio St.2d 523, 433 N.E.2d 187 (1982) .....4
Davis v. Huron Rd. Hosp., 8th Dist. Cuyahoga No. 57722, 1990 WL 180647 (1\Tov. 21, 1990)..5
Dresher v. 13urt, 75 Ohio St. 3d 280, 662 N.E.2d 264 (1996) .......................................................2
In re Comshare Inc. Securities Litigation, 183 F.3d 542 (6th Cir.1999) ......................................5
Jarvis v. First Resolution Financial Corp., Ohio S. Ct. No. 2013-0118 .......................................2
Midland Funding, LLC v. Hottenroth, 8th Dist. Cuyahoga No. 100146, 2014-Ohio-2390 ......4, 5
Slack v. Cropper, 143 Ohio App.3d 74, 2001-Ohio-8894, 757 N.E.2d 404 (11th Dist. 2001).....5
State, ex rel. Tearnsters Local Union 377 v. Youngstown, 50 Ohio St. 2d 200,364 N.E.2d 18 (1977) ....................................................................................................................4
State v. Chappell, 127 Ohio St. 3d 376, 2010-Ohio-5991, 939 N.E.2d 1234 (2010) ....................5
Statutes
15 U.S.C. § 1692i(a) ......................................................................................................................5
{552066_2; 0002-3729} iii
EXPLANATION OF WHY THIS CASE INVOLVES A QUESTION OF PUBLICORGREAT GENERAL INTEREST
Appellant Midland Funding LLC ("Midland") joins in the appeal of Appellant Javitch
Block & Rathbone LLC ("Javitch"), and for efficiency and brevity, relies upon Javitch's
Amended MemoNandum in Support of ,7ur°isdiction to the extent not inconsistent with Midland's
position in the proceedings below. As set forth therein, this case involves three questions of
public and great general interest. First, Ohioans should know when causes of actions relating to
credit card debt accrue, and the decision of the Eighth District Court of Appeals ("Eighth
District") confuses that issue. Because this appeal advances a proposition of law like that
advanced in Jarvis v. First Resolution Financial Corp., Ohio S. Ct. No. 2013-0118, this appeal
involves an issue which this Court has already found to be of public and great general interest.
Second, Ohio litigants have a significant interest in having Ohio courts apply federal law,
including the FDCPA, according to its plain meaning, and not, as the Eighth District did here,
have courts rewrite the statute to impose additional requirements not present in the statute as
written.
Third, this is a matter of public and great general interest because it involves the proper
application of de novo review on summary judgment. Ensuring that courts properly apply the
summary judgment standard is critical because summary judgment is "the most important tool
Ohio courts have for disposing of issues without a trial." Dresher v. Burt, 75 Ohio St. 3d 280,
299, 662 N.E.2d 264, 278 (1996) (Cook, J., dissenting). Here, the Eighth District reversed the
Trial Court, and in so doing made new, binding factual findings based upon its own
interpretation of the evidentiary record, when there was no undisputed evidence to support that
conclusion.
{552066_2; 0002-3729} 2
STATEMENT OF THE CASE AND FACTS
On April 5, 2010, Javitch filed a complaint in the Euclid Municipal Court on behalf of
Midland, on. an unpaid credit card account Midland purchased from Bank of America. (Euclid
Muni Ct. Complaint, Apr. 5, 2010.) On May 10, 2010, Defendant Dustie Miller (f/k/a
Hottenroth) filed a counterclaim asserting that Javitch and Midland, inter alia, violated the
FDCPA and the Ohio Consumer Sales Practices Act ("OCSPA") by (1) filing a lawsuit in a
judicial district in which Ms. Miller did not reside; and (2) filing a lawsuit on a time-barred debt.
(See Ans. & Countercl., May 10, 2010.)
The information Javitch possessed prior to filing suit revealed multiple addresses
associated with Ms. Miller, including (1) a Euclid, Ohio address; and (2) a West Virginia
address. (Javitch Mot. Summ. J., Ex. 7, Feb. 4, 2011.) Javitch selected the Euclid, Ohio address
for purposes of serving Ms. Miller. During discovery, records from Charter One Bank supported
service at the Euclid, Ohio address. Charter One's records showed that on December 28, 2009 --
nearly four months before Javitch filed suit -- Ms. Miller signed a signature card, identified her
address was located in Euclid, Ohio, and certified that the statements on the signature card were
true and accurate. (Aff, o}'RBS Citizens, N.A., Charter One Personal Signature Card, Feb. 22,
2011). Information also showed that Ms. Miller first failed to make required payments in 2004,
and last made a payment on the credit card account on April 13, 2007. (See FIA Afj:, Documents
000042, 000044, 000127).
On February 4, 2011 and February 22, 2011, Javitch and Midland filed their respective
motions for summary judgment as to Ms. Miller's counterclaims. (See Javitch Mot. Summ. J,
Feb. 4, 2011, Midland Mot. Summ. .L, Feb. 22, 2011.) The Trial Court granted Javitch and MFL
summary judgment on June 25, 2013 and dismissed Ms. Miller's counterclaim by entry of June
26, 2013. (See Order, June 25, 2013; Judgment, June 26, 2013.)
{552066_2;0002-3729} 3
Ms. Miller appealed the Trial Court's June 25, 2013 Order granting summary judgment,
and on June 5, 2014, the Eighth District reversed in part, dismissed in part, and remanded,
holding, inter alia, that genuine issues of fact existed as to where Ms. Miller resided when
Javitch filed the collection lawsuit, and as to whether the debt was time-barred. (See Appx. Al.)
Midland appeals from this decision. i
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. 1: Absent an agreement otherwise, a claim for breach of acredit card contract accrues when a consumer fails to make a required payment
Ms. Miller first failed to make payments that were less than the minimum required
payment due on May 11, 2004.2 Nevertheless, the Eighth District concluded that Midland's
cause of action against Ms. Miller did not accrue until April 12, 2005 (at the earliest), lllidland
Funding, LLC v. Hottenroth, 8th Dist. Cuyahoga No. 13-100146, 2014-Ohio-2390, ¶¶ 18-19.
This conclusion conflicts with long-established Ohio law that holds "when one's conduct
becomes presently injurious, the statute of limitations begins to run." ChildNen's Hosp. v. Ohio
Dept. of Pub. Welfare, 69 Ohio St. 2d 523, 526, 433 N.E.2d 187, 190 (1982) (citing State, ex rel.
Teamsters Local Union 377 v. Youngstown, 50 Ohio St. 2d 200, 364 N.E.2d 18 (1977)).
The Eighth District further held that the statute of limitations could have accrued as late
as March 15, 2007 - the supposed date of Ms. Miller's last partial payment because partial
payments toll the statute of limitations. Midland Funding, LLC, 8th Dist. Cuyahoga No. 13-
100146, 2014-Ohio-2390, ¶¶ 20-22. This was error as a partial payment does not impact the
1 Javitch filed a Motion for Reconsideration on June 16, 2014, which the Eighth District deniedon July 1, 2014. Midland had joined in that Motion for Reconsideration. Also, Ms. Miller'sapplication for en banc consideration remains pending with the Eighth District.2 Javitch's Amended Memorandum in Support of Jurisdiction mistakenly stated that Ms. Milleropened her account on July 10, 2013. (Javitch Memorandum at p. 6.) The correct date is July 10,2003. (A,ff. ofMelinda Stephenson, ¶ 5(a)). There is no dispute concerning the date the accountwas opened.
{552066_2; 0002-3729} 4
accrual date of the statute of limitations but rather extends the running of the statute. Slack v.
CNopper, 143 Ohio App. 3d 74, 83, 2001-Ohio-8894, 757 N.E.2d 404 (11th Dist. 2001).
Proposition of Law No. 2: A state court must interpret the FDCPA according toits plain terms, and mav not require a debt collector to sue a consumer in his orher place of domicile when the FDCPA only requires a debt collector to file suitin the consumer's place of residence.
The Eighth District erred by rewriting the FDCPA and requiring a debt collector to
commence suit in the debtor's place of domicile, when the plain language of the statute requires
a debt collector to file a. lawsuit "only in the judicial district or similar legal entity (A) in which
such consumer signed the contract sued upon; or (B) in which such consumer resides at the
commencement of the action." 15 U.S.C. § 1692i(a)(2)(A)-(B) (emphasis added). A state court
adjudicating a claim arising under federal law "[m]ust apply federal law as created by federal
courts or established by federal statute." Davis v. Huron Rd. Hosp., 8th Dist. Cuyahoga No.
57722, 1990 WL 180647, *4 (Nov. 21, 1990). When interpreting a statute, federal courts "begin
with its plain language . . . ." In re Comshare Inc. Securities Litigation, 183 F.3d 542, 549 (6th
Cir. 1999); State v. Chappell, 127 Ohio St. 3d 376, 379, 2010-Ohio-5991, ¶16, 939 N.E.2d 1234
(2010). Proposition of Law No. 3: An appellate court applying a de novo standard ofreview may not make new findings of fact.
"fhe Eighth District erred by exceeding the scope of de novo review and issuing new,
independent findings of fact, rather than remanding to the Trial Court to resolve the alleged
issues of fact. In particular, the Eighth District concluded that the latest date the cause of action
could have accrued was March 15, 2007 because, according to the Eighth District, Bank of
America rejected Ms. Miller's final payment of April 16, 2007. Midland Funding, LLC, 8th Dist.
Cuyahoga No. 13-100146, 2014-Ohio-2390, ¶21. But, nothing in the record supports the Eighth
1552066_2; 0002-3729} 5
District's conclusion that Bank of America rejected the April 16, 2007' payment, and thus, the
Eighth District exceeded the scope of its de novo review and authority by making new findings
of fact on appeal.
CONCLUSION
For the reasons stated above, Appellant Midland Funding LLC respectfully requests that
the Court grant jurisdiction to consider this matter on its merits.
Respectftilly submitted,
STEVE. G. JANIK (0021934)CRYSTAL L. MALUCHNIK (0077875)ELLYN TAMULEWICZMEHEiti'DALE (0063524)(Of Counsel)JANIK LLP9200 South Hills Boulevard, Suite #300Cleveland, Ohio 44147-3521(440) 838-7600 • Fax (440) 838-7601Email: Steven.Janik(cr;Janiklaw.corn
Cr^stal.Maluchnik(cz^Janiklaw co7nE11yt7, Meliendal.e.^ri^Jarii kl aw.com
Counselfor Appellant Midland Funding LLC
3 The Eighth District inaccurately recited the date of this disputed payment. The payment wasposted on April 13, 2007. (FIA Aff , Document No. 000127.)
}552066_2;0002-3729} 6
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was sent via electronic mail and via ordinary
U.S. mail pursuant to S. Ct. Prac. R. 3.11(B) this 29th day of July, 2014 on counsel for Dustie
Hottenroth Miller, Anand N. Mira, The Misra Law Firm, LLC, 3659 Green Road, Suite 10,
Beachwood, OH 44112, [email protected], and Robert S. Belovich, 9100 South Hills
Blvd., Suite 320, Broadview Heights, OH 44147, [email protected]; and counsel for Javitch,
Block & Rathbone, LLC, James Oh, [email protected] and Mark C. Brncik,
[email protected], Block & Rathbone LLC, 1100 Superior Avenue, 19th Floor, Cleveland,
OH 44114, Block & Rathbone LLC, 1100 Superior Avenue, 19th Floor, Cleveland, OH 44114,
ELLYN T MU1th4L1 eAL4tdi4
PICZ MEHENDALE (0063524)(Of Counsel)JANIK LLP
Counsel for Appellee Midland Funding LLC
{552066_2;0002-3729} 7
APPENDIX
Opinion and Judgment of the Eighth District Court of Appeals ...........................................Al
Journal Entry Denying Motion for Reconsideration ............................................................. A20
{552066_2;0002-3729}
^JUN X 5 2014
Court of Zippiit5 of (ObiflFIOI fTI-I APPFLT..ATF DISTRICT
COUNTY OF C;UYAH0OA
JOURNAL EiNTRY AND OPINIONNo. 100146
MIDIAND FUNDING L.L. C.
PLAINTIFF-APPELLEE
V3.
DUSTIE HOTTENROTHN.K.A. DUSTIE MI LLE R
DEFENDANT-APPELL,xi'vT
JUDGMENT:REVERSED IN PART, DISMISSED IN PART,
AND REMANDED
Civil Appealfrom theCuyahoga Cotinty Court of Cornman Pleas
Case iVo. CV-729712
BEFORE: S. Gallagher, P.J., EA. CYallagher, J., iiizd E,T. ( rallagher, rJ.
RELEASED AND JOURNALIZED: June 5, 2014
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Appendix, Al
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AT'T`CI.RNEYS FOR APPELLANT
Robert S. Belovich.3100 South Hills Blvd.Suite 300F3raadvietiv :Heights, OH 441.47
Anand N. MisraThe 'Misra Law Firm, L,L.C.3659 Green RoadSuite 100Beachwood, OH 44122
ATTORNEYS FOR AFPELLEIE',
For 1'Iidlan.d Fuxiciing, L.L.C.
Steven G. JanikCYrystal Lynn MaluchnikEllyn MehendaleSean T. Needham:.ianak. L.L.P.9200 South ililLs Blvd.Suite 300I3roadview Heights, OH 44147
Sam. A. Bens©n1100 Superior M1venu.e19th FloorCleveland, OH 44114
For Javitch, Block aYZd Rathbone, L.L.G.
Robert CY. KnirschN,faz.•k :I3ri-icikJames OhJavitch, Block & Rathboue L.L.C;.l. 100 Superior Aventte, 19th FloorCleveland, OH 44114-1503
FILED AND JOURNAE.fZED
PER APP,R. 22(C)
JUUX520t4144
1'UYANO'3A COUNTY CLERKOF 3H GOtJRF QF AFPE;;LS %3y ^l. CL" Gepnty
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Appendix, A2
SEAN C. GALLAGHER, I'.J..
{^1} Counterclaim-plaintiff Dustie Miller, f.k.a.. Dustie Hottenroth
("Miller"), appeals from the trial cotxrt's decision granting summary jirdgnzent
in favor of iV:tidl.and Funding, L.L.C., and Javitch, Block, and Rathbone, L.L.P.
(collectively °`defendan.ts").' For the following reasons, we reverse in part and
dismiss in part and remand to the trial cou.rt for further praceedings.
(^2} The underlying facts are fairly straightforward. According to the
exhibits in the record, especially those attached to Miller's deposition that
included a complete compilation of all billi.tig records for account No. xxxx-xxxx-
xxxx-9562, the credit limit an that account was exceeded sometime in April 2004.
Between April 2004 and April 2005, payznents were continually posted to the
account, but several times the account reflected a nominal amun.t past due,
which was immediately paid. For example, as of the October 15-November 12,
2004 billing cycle, the :statement reflects a total balance of $4,409.41, but that
N'Iiller owed $80 as an amount past due, $78 for the zninim-Lirn payment for that
billing cycle, and $409.41 for the amount she exceeded the credit lin.zit. In fine
print at the bottom of the clocuznent, Bank of America deemed the account
"currentiy closed." INJilier tendered an $80 payment before the d.tie date for that
biiling cycle, 'i`hei-eafter, despite the account being dceined closed, Miller kept
` For the purposes of this appeal, we will a°eEew to the plaintiff Midland I^^ zindiii;and countercla.im dei'enciant,7avitch, Block, and Rathbone, L.L,P., as "ctefendants" f'orease cf'reference in consideration of their roles in the counterclaim advanced.
Appendix, A3
the account from accumulating an amount past due until sUanetime in April
2005, in other words, she never allowed a past-due amount to accrue for longer
than 30 days.
{¶3} No payment was tendered as of the April 12, 2005 due date; for that
lailling cycle, and the overdue balance grew. It was not until October 2005 that
Bank of America first requested that iMiller pay the entire balance owed as the
minimurn payment required, at that time being the sum of $4,180.84, pursuant
to the default provision of the credit agreement. Thereafter, Bank afAme.rica.
sought the entire amount owed as the minimum monthly balance until
October 26, 2006, when Bank of America charged off the remaining balance.
{!j4} On that date, Bank ofAinerica charged off $5,050.43 from the xxxx-
xxxx-xxxx-9562 account, representing the closing balance for that billing cycle.
The apparent opening balance, denoted as the previous balance, on the
November 2006 billing statement for account No. xxxx-xxxx-xxxx-7342 was
$5,064,50.' Relying on the defendants' evidentiary submissions, including
aff'iciavits and depositions from the defendants' representatives, the defendants
claimed Miller's account was a single account, only differing with respect to the
account aztambers as the charge-off balance was prepared for resale.
2The only explanatican for the discrepancy between the charge-off amount andt;lYe openixlg bal.anc:e in the ifxtter raccount ntcinber came at oral ar;;uinent. Thedei'endarats claiir7.ed the $14.07 difference was due to interest accumulation, althoughthe statements never reflected accumulated interest beiiag added to the charge-offainount from the immediately preceding billing statement.
Appendix, A4
(f 5) Ultimately, in January 2008, the xxxx.-xxxxaxxxx-7342 account was
again officially charged off and the $5,427.24 balance was transferred through
a purchase agreenient to Midland Funding. -Midland Funding began pursuing
debt collection actions culrninating in the April 5, 2010 filing c^fthe underlying
claim against Miller, based on the xxxxx.xxx-xxxx-9562 account, seeking a
judgment in the ainauzit of $4,129.81. Midland Funding used a Euclid, Ohio,
address for Miller for the purposes of serving Miller and establishing venue in.
Ohio. 1Vliller disputed residing at that address at the commencement of the case,
claiming to have rnoved there at the end of April 20I0.
}¶6} Miller answered the complaint and filed a counterclaim asserting on
behalf eifherself and other similarly situated persons, several claims against the
defendants for violations of the Fair Debt Collection Practices Act ("F+`I)CPA")
and Ohio's Consumer Sales Practices Act (:`CC:SPA"). Succinctly stated, iNfiller
c.laimed that the defendants violated the FDCPA and OCSPA by (1) commencing
and maintaining a time-b.srred lawsuit; (2) concealing material information in
the lawsuit; (3) making false representations in the lawsuit; (4) demanding
interest alid costs in the lawsuit; (4) causing the lawsuits to be reported to the
credit bureaus; (5) filing lawsuits without conducting an adequate investigation
of the debt; and (6) filing the lawsuit in a territory in tivhicli Miller cl`zd not reside.
Miller also advanced common law tort claians of abuse of process, defamation,
civil conspiracy, and fraud.
Appendix, A5
{¶'7} The trial court granted Midland Funding leave to anzerld the
complaint, filed on August 13, 2010. Tliiee days later, i1^:Iidland Funding
dismissed the complaint without prejudice, prior to the deadline to file an
answer. Simultaneously, iMidland Funding argued that the entire case should
be dismissed because the amended complaint was dismissed prior to an amended
answer, and according to Midland Funding, the co ►.interclaizn ceased to exist.
The trial court dispensed with that argument, but upon summary judgment,
condensed 1~rTiller's claims into two basic causes of action based on the filing of
a tizne-barred, claim in a territory in which Nliller did not reside.
f ¶$} The trial court determined that there were no genuine issues of
material fact regarding the date that the cause of action accrued and where
Miller lived on. April 5, 2014. The trial court determined that all of Miller's
c:laimg failed as a matter of law because the 15-year statute of limitations,
pursuant to the version of R.C. 2305.06 in effect at the time, applied to the facts
of this case because the cause of action accrued in October 2004 when the
account was closed. In so ruling, the trial court expressly relied on the statute
of'limitations prior to the April 7, 2005 enactinent of the borrowing statute, R.C.
2305.03(B). Further, the trial court held that Miller lived at the Eiaclid, Qhio
address on the date the action was commenced. Nliller t,in-tely appealed from the
trial court's decision,
Appendix, A6
{^j9} Despite starting i:xoan the cleceptively sirnple origins of an action
arising from a consttmer debt, this case became tindcdy complicated, in part
brought upon by the parties' inability to accurately set forth the facts as
preseiited in the docuanentary evidence. The crux of the issues before the trial
court and upon this appeal focus on a statute of limitations issize and Miller's
place of residence on April 5, 2010, In this regard, precisely identifying the
pertinent dates is paramount to the resolution of the claims.
{^ 10} Before addressing the xn.er its of the appeal, we must address the
procedural posture of this case. Miller's counterclaim advanced claims on behalf
of a putative class. In the midst of several discovery disputes, the trial couxt
indefinitely stayed discovery on the class certification issue, and only allowed
Miller to proceed with discovery on the merits of her individual claims. In
granting the defendants' 1T1ot1tJJIi for summary judgment, the trial court
dismissed the counterclaini. On appeal, this court sought additional briefing on
whether tiae dismissal of Miller's individual counterclaims created a final
appealable order in. light of the fact that the order omitted any reference to
disposing of the class action c.laims. Both parties file(I supplemental briefs
agreeing that the trial court's surnmaiy judgment opinion disposed of all claims.
{^(11} We are coiilpellcci to note, however, that the dcfendants' cla:im that
the class action alle;gations were znooted --- by the fact that Miller failed to
advance claims for class certification prior to the court's resolution of' her
Appendix, A7
individual claims ---- is inisplac;ed.. The trial court's inteecession staying
discovery absolved Miller of the responsibility of filing for class certification in
order to preserve the putative class's claims for appeal. See Iloban u. Apatd. City
Bank, 8th :Dist, Guyahaga. No, 84321, 2004-Ohiv-6115, '!( 22 (string citing
authority stating that the "mootness doctrine" could not be invoked in situations
where a plaintiffis prewented from seeking class certification). Nevertheless, the
trial court's June 25, 2013 order granting judgment in the defendants' favor
disinissed the entirety of Miller's eounterclaiin, including any class action
component. iNliller never challenged this dismissal with respect to the class-wide
allegations, and therefore, all claims were disposed of for the puxposes of R.C.
2505.02. Further, Miller only appealed the trial coizrt's decisioi-i with respect to
her individual claims, so we need not delve irito the class action camponent of'the
cvunterciairn.
I I(12} Turning to the merits of the claim, appellate review of suanmary
jzidgment is de novo, governed by the standard set forth in Liv.R. 56. Carn.er v.
Risho, 106 Ohio St.3d 185, 20{)5-Ohio-4559, 833 N.E.2d 712, 1118.
Suznznary jizdgment may be granted only when (1) there is no;enuine issue of 7naterial fact, (2) the rnoving party is entitled tojttdgment as a ina.tter of law, and (3) viewing the evidez7ce moststrongly in favor of the z-ionrn.vving party, reasonable minds cancome to but one conclusion and that conclusion is adverse to thenan.moving party.
Appendix, A8
111arresa u. Erie .Irts. Co., I36 Ghio St.3d 118, 2013-C)hio-1957, 991 v.E.2d 232,
!J E. A party requesting summary judgsrzent bears the initial burden to show the
basis of.'the motion. Dresher v. Bar#, 75 Ohio St.3d 28(}, 2cJ3-294, 6GZ NX2d 264
(1996). Only when the moving party satisfies this burden of production is the
opposing party's reciprocal burden trigger ed, requiring introduction of evidence
allowed under Civ.R. 56(C) to demozistrate genuine issues of nxateriay fact. Id.
{T, 13) In Miller's rirst, second, third, fourth, and ninth assignments of
error, she claims the trial court erred in granting sumznary judg.m.ent ttpon the
counterclaim because of the existence of genuine issues of inateria.t fact. After
thoroughly reviewing the record, we agree and hold that the trial coui-t erred by
applying the 15 -year statute of limitations for a written contract pursuant to the
pre-September 2012 version offt. C. 2305.06, by determining thatthe defendants'
claims accrued in October 2004, in failing to apply the borrowing statute R.C.
2305.()3(B) to the facts of this case, azid by determining that no genuine isgues
of znaterial fact existed with rega.rd to Miller's permanent residency as of April 5,
2010.
I ^, 14} "A debt collector violates [1.D-li,S.C.] 1.692e by, among other things,
falsely rep.resenting `tlre character, aimount, or legal status of any debt."' Dudek
V. Tlaomas &- Thomas Attys. & CorEnselors at Law, LLC, 702 F.Supp.2d 826, 833
(N.D.Ohio 2010), citing 15 U.S.C. 1692e(2)(A). ""Coznmon sense dictates that
whether a debt is time-barred is directly related to the legal status of that debt."'
Appendix, A9
Id., quoting C;Tervccis u. Riddle & Assocs., .t'.G`., 479 i+',Supp.2d 270, 277
(.D,Conn.2007). As a result, a debt collector violates the FDCPA in filing a legal
action based on a time-barred debt,
(¶ 15) The determination as to when the defendants' claim accrued based
on the alleged debt is of paramount concern to the resolution of the claims.
Rather than addressing this issue, the trial court, a.draittedly upon the urging
al'the parties, accepted Miller's statement, in her brief in opposition to summary
judgment, that the defendants' claim accr-ued in October 2004 when Bank of
America deemed the accoun,t as being "curreixtly closed." The parties provided
no authority for the proposition that the date of the closing of the account is the
date the cause of action definitively accrued, and the affidavits attached in
support of defcnda.nts' respective motions for summary j udgment are simply
incorrect as compared to the bi:llingstatemen.ts, creating a genuine issue of
material fact regarding when ,Vlidtand Funding's cause of action accrued.
(¶ 16} In particular, in her February 15, 2011 affidavit, Melinda
Stephenson claimed that Bank of America was owed the sum of $5,427.24 oii
October 15, :3005, but that the xxxx-xxxx-xxxx-7,342 accotxnt was the same as the
original xxxx•xxxx-xxxx-9562 accor.tnt, despite the fact that the former did not
ex.ist until Noveiiiber 2,QQG. According to those same records, the balance on
account No. xxxx-xxxx-xxxx-9562 was $4,180.84 as of the October 2005
statement, and the ai77otint actually charged off on October 26, 2oO6, was
Appendix, A10
^,,45,050.43. It was not until January 2008 that Baiik of America sold the x:nxxn
xx:^x-xxxx-'7<3=i2 accouzit, then totaIiiig $5,427.24, to Midland Funding. Likewise,
according to Joel Rathbone's affidavit, the law firm tased. '̂^idiand Fiznding`s date
of October 15, 2005, as the date the xxxx-xxxx-xxxx-9562 account was charged
off and transferred to the xxxx-xxxx-xxxx-7342 account number. He further
stated that the only discrepancy in their records was the account numbers used
to identify the single accotint, althotzgh the charge-off amount from the original
account number did not match the opening balance of the later one.
{I(1.7} While the exact accrual date is beyond the scope of this appeal, the
bookend dates are determinable as a matter of Iaw. The accrual date for a credit
card debt has largely been unsettled, "in part because courts have not
consistently categorized credit card accounts." Jarvis u. First Resolution Invest.
Corp., 9th Dist. Summit No. 26042, 2012-Uhio-5653, ^, 33. In xecogniti.on of the
unsettled law, the Ninth District held that credit card accounts are open
accoun.ts based on the legislature's definition of account to include "a right to
payznent of a znonetary obligation, whether or not earned by performance,
rtisix-ig out of the use of a credit or charge card." Id., citing R.C.
1309.102(.02)(a). According to the comrnon law definition, an open account is
an "account with a balance which has not been ascertained and is kept open in
^znticipa.tic^n of fiitzire transactions." Id. at jF 34, citing Srnith^r u. Asset
Acceptance, L,L, C, 919 N.E.:?d 1153, 1159 (Inci.,kpp.201()). An accozint rernains
Appendix, A11
opetr until "one of th.e parties wishes to settle and close the account, and where
there is but ozze single and indivisible liability arising from the such ser.zes of
related and reciprocal debits and credits," Id. Thus, an account z.en-iazns open
until both settleci to a single liability and closed by one of the parties.
{¶18} In light of the evidentiary submissions by defendants in prosecuting
their respective znotions for suznmaxy judgment, it is urzdisputed that any claim
for the xxxx-xxxx-:cxxx-9562 account number accrued after i1pril 7, 2005, the
effective date of the borrowing statute. In this regard, the court erred as a
matter of law by failing to apply the borrowing statute to the claims in this case.
According to the April 2005 billing statement, the xxxx-xxxx-xxxx-9562 account
was past due. Prior to that billing stateinen.t, there were sporadic billing cycles
rexlecting a balance past due. The delinquency was remedied until April 12,
2005. That paymezxt was never tendered, and thus Miller could not have
defaulted until April 12, 2005. Also, becattse Ntiller continued to gnake
payrnents, the fact that Bank afAnierica deemed the account "currently closed"
is of no consequence for the purposes of this case. The a.ccount was not settled
to a sii-igle liability until October 2005 when Bank of America both closed the
accoitnt and sought the entire amount owed as a lump-sum payinent, as a
conseqtience to Miller's defaLilt:. Jarvis at 'j 34.
t 1[ 19} ,z1pt zl 12, 2005, is the earliest the cause ofactian could have accrued,
:;even +:lays after the enactmLnt; of the borrowing statzite, i1vIidland Ii uncling
Appendix, A12
conceded as much in its motions for surnnxa.ry judgment, identifying the April
2005 biiling statement as the date that Miller finally defaulted on her obligation
by failing to remit a payment for the amount she owed that was past due. The
fZathlione affidavit attached to Javitch's in;otion for suznmary judgment indicated
that the charge-off date was the appropriate date for the purposes of resolving
the statute of liynitations issues. Thus, the iinclisputed evidence demonstratecl
tI-zat the earliest accrual date of Midland Funding's purchased claim against
Miller was April 12, 2005. The trial court erred in determining an earlier date
and by not applying the borrowing statute to the facts of the ctirrent claim.
{¶20} Defendants also claim that the shortest statute of limitations that
could possibly be applicable is a three-year term and that Miller made sporadic
payments to the xxxx-xxxx-xxxx-9562 arid xxxx-xxxxaxxxx-7342 account
nurnbers untilApril 16, 2007, thereby profongingthe accrual date for their claim
against NIiller until April 16, 2010. Typically, the making of a partial payment
on an open account laefore the statute of limitations expires extends the iznplied
promise to pay the balance owed amount, acting to renew the statute c,f
limitations period. Ilirrtelfarb u, Axtz. E, xpress f;'o., "301. Md. 698, 705, 484 A.2d
1013 (1984).
(T 22} Even if thosf: payments did act to extend the statute of limitations,
althoi-rgh a payinent was posted in the xxxx-xxxx-xxxx•"7342 account on April 16,
9007, that payxrient was rejected by Banlt of .1.inerzca on May 2, 20(77. The last
Appendix, A13
actual payment accepted bv the creditor was posted on March 15, 2007.
C.̀Feneraily, in order
[t]o interrupt the running of the statute of limitations, the partpayment must be the debtor's volutztary act * * *. A"voltantarypayment" for this purpose is one that is intentionally andconsciously made and accepted as part paymerat of the particulardebt in question, under such circumstances as would warrant aclear inference that the debtor assents to and acknowledges that agreater debt is due as an existing liability.
(Emphasis added.) 51 :^i-aerican Jurisprudence 2d, Limitation of Actions,
Section 328 (2014); see also 11artin u. 13'ror,cn, 716 N.E.2d 1030, 1.034
(Ind.App.1999). Under the dcfeizdants' theory, therefore, the claim accrued at
the latest on March 15, 2007, the date of the last accepted payment.
{¶2L} In short, sonxetirne between April 12, 2005 and March 15, 21007, lies
the accrual date of the claim for the purposes of determining whether the
April 5, 21010 complaint was tiznety. It is undisputed, therefore, that the
borrowing statute applied and the trial court erred by applying Ohio's statute of
limitations without consideration of R.C. 2305,03{B}. Accordingly we must
remand for resolution of the implications (if R.C. 2305.03(F). See Jr.zr•z)is, 9th
Dist. SLatnmit No. 26042, 2012-Ohia-5653.
( ,̂2;3) Finally, there remains a genLiine issue o# material fact as to whether
Miller lived in Euelid, Ohio, on April 5, 2010. 15 U.S.C. 1692i provides that a
debt collector shall file an action only in the judicial district in which the
Appendix, A14
consumer signed the contract or in which the coiisu.irrer resides at the
commencement of the action.
The term "reside" has a commonly accepted meaning. Dictionariesdefine "reside" as "to live in a place for a permanent or extendedtime," Webster's II New College Dictionary 943 (2001), or to "live,dwell ... to have a settled abode for a time ...." Black's LawDictionary (5th ed. I979). tln ordinary person would understandthat a person resides where the person regularly lives or has a homeas opposed to where the person might visit or vacation.
United St(.ztes u. XarnEy, 364 F3d 843, 845 (6th Cir.2004); aYativnwide Property
Cces. In,s. Co. u. Kavcznaztgh, 2d Dist. iVlontgon-ieiy No. 2,5747, 2013-Qhio-4730;
!f 33.
{!{24) Defendants argue that Miller resided in Euclid, Ohio, and Ripley,
West Virginia, on the date they commenced the underlying case agaizist her.
Miller disputes that and presented evidence that she moved to Euclid at the end
of Api•i.l 2010, including a United States Postal Service permanent change of
address form, bank statements demonstrating purchases being made primarily
in West Virginia during April 2010, and her own deposition testimony,
j^25} Irz its n-zotion for sumtna.ry judgment, Javitch solely relied on the
fact that Miller's bank or credit card accounts indicated transactions occurring
in (Jhio around the tizne the lawsuit was filed and that abank form indicrzted
1%Iiller ilsed the Euclid, Ohio address. L-Iidland Ii'^indii^.g relied on the fact that
Miller rzicived to the address sometime after the lawsuzt was 1`iled. Neither
ax°guznei-it satisfies the defendants' htxrclen to demonstrate the lack of ;ei3uine
Appendix, A15
issues of inaterial fact for the purposes of summary judgmeixt. Javitch's
evidence is open to interpretation and is contra.dicted by Miller's deposition
testimony stating the bank accoiant was opened before she moved out of Ohio
and got ni.arried. Simply making purchases in Ohio is insufficient to estahlish:
residency in light of the undisputed fact that Miller's family, whom she may
have been visiting, lived in Ohio. Further, N:Iidland Funding's argument fails to
address the issue of where Miller resided at the c.oinmenceznent of the lawsuit.
The trial co-Lizrt accepted the defenrlants' arguments without consideration of the
evidence presented in response, As a result, based on the evidence considered
in a light most favorable to the nonmoving partyr, there is an issue of fact
regarding whether Miller resided in EcZ Clid, Ohio, at the commencement of the
lawsuit.
{¶ 26} Accordingly, Miller's first, second, third, fourth, and ninth
assignments of error ar esustai.ned. The trial court erred in failing to consider
the implications of R.C. 2305.03(F3), and genuine issues of inaterial fact exist
with respect to :bliller's residence at the comznencemen.t of i-Vlidland Funding's
now dismissed action. We inust reverse the trial court's decision granting
summary judgment upon i•rliller's individual clazrins.3
'Our resolution of these assigtimen"ts of error moot Miller's eighth assignment
of error, in which she claims the trial court erred by failing to strike Stephenson's
Fifficlavit originally included for the ptirposes of resolvira; the motions for sumtnary
i ucl ;menf;.
Appendix, A16
{!j27} I{'inally, in Miller's sixth and seventh assignments of error, she
claims the trial court erred by dismissii-ig two other defendants and denving a
inotion for sanctions against a third defendant, The relevant decisions, however,
were interlocutory in nature. Miller failed to include a copy of each judgment in
her notico of appeal as required by App.R. 3(D) and Loc.App.R. 3(B). As this
court has previotzsly noted, the purpose of a notice of appeal is to notify appeI?ees
of the appeal and advise them of the scope of the appeal. Parks v. Baltimore &
Ohio h'R., 77 Ohio App.3d. 426, 427, 602 ME.2d 674 (8th IJist.1991), citing
;:l^.^czr•itirne Ylfrs., Inc. c,j. Ili-Skipper Marina, 70 Qhic, St.2d 257, 258-259, 436
N.E.2d 1034 (1982). Absent the requisite notice, this court lacks jtarisdiction..
l'd. The three defendants with interests in ttie outcome of the last two
assignments of exTor were never put on notice of Miller's intent to appeal the
trial court's decision. We, therefore, lack jurisdiction over Miller's sixth and
seventh assignments of error.
{0,T, 2$1 The decision of the trial court is reversed in part and dismissed in
part, atzd the case is remanded for further proceedings.
lt is ordered that :zppoilant and appellees share the costs hereiia taxed.
The cotkxt finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
ccarnmon pleas court to carry this judgment into execution.
Appendix, A17
A certified copy of this entry shall canstitLrte the marzdate pursuant to
Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRE .: ING JL^'DGE
EILEEN A. GALLkGHER, J., andEILEEN T. GALLAGHER, J,, CONCUR
Appendix, A18
CC 97/ ^7$3
btdtL' of ObtU, ss. I, GERALD E. Ft1ERSI', Clct-k of the Court ofGuyahoga County.
:1ppeals within and for said County, aaici i n whose cti'stoc3y the files, .touzriais and =orcis of said Court are
reqttired by ttte laws of tC1e State of 3, ^ i^ ^, kept l^rcby cea-tit that the foregoing is taken and copied.
from the Journal entry dated on ^ CA ^.
fsf the proceedings of t'qe Court of Appeals within and for said Cuyahoga CouaCy, anc-1 tt^at the ^zid ^ore^o' g/ ^^ f!
cc^py has ee i ct^^tpa e by rrze with the c^riginal ej7tiy on said Journal entry dated on /!
CA ^ ^ and that the sarrze i s correct transUript thereaf.
Itr XtotfDttattp Iftertttt, I ctc7 trereuuto subscribe rny name officially,
and affix the seal of said court, at the Cou ouse in the City of
Cleveland, in said County, t s,
tlay of A.D. 20
GE7V E. It'^i'.iG'IZST, Clerk off'Courts
By _ Deputy Clerk
Appendix, A19
Court of Appeals of Ohio, Eighth DistrictCounty of Cuyahoga
Andrea Rocco, Clerk of Courts
tky
ih
^'.
MIDLAND FUNDING LLC
ApPellee COA NO. LOWER COURT NO.100146 CV-10-729712
COMMON PLEAS COURT^JS-
LUSTPE HOTTENROTH, NKA MILLER
Appellant
E7ate 07101114
MOT1QEJ NO. 475883
aurna ntn^
Motion by appellee, Javitch, Block & Rathbone, L. L. G., for reconsideration is denied. >
^...HECEiwJFOR FILING. . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . ^ . _^.. ^ . -
JUL X^^C114
Ci}'l- C KU" TI +^LE E^K ^OF , E ,4PFE?,LS3`/ 3BPk hf JJ
JuciQe q}LEEN A. ^^LLAGHER, Concurs
i rrJrLe H!LE^N T. G^tLL,^GNER Cc^nci^rs--- -----r__-_._._-_ ----_-- _ __SEAN C{Presiding
Appendix, A20