LVNV Funding, L.L.C. v. Tanevski

[Cite as LVNV Funding, L.L.C. v. Tanevski, 2014-Ohio-1741.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

LVNV Funding, LLC, :

Plaintiff-Appellee, :

No. 13AP-398

v. : (M.C. No. 2012 CVF 03 2974)

Dance Tanevski, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on April 24, 2014

__________________________________________

Levy & Associates, LLC, Yale R. Levy and Sean M. Winters,

for appellee.

Watson Law Group, LLP, David C. Watson, Jr., for appellant.

APPEAL from the Franklin County Municipal Court

T. BRYANT, J.

{¶ 1} Defendant-appellant, Dance Tanevski, appeals from a decision of the

Franklin County Municipal Court granting summary judgment to plaintiff-appellee,

LVNV Funding, LLC, and entering judgment for plaintiff in the amount of $5,370.60.

Because the evidence demonstrates a genuine issue of material fact for trial, we reverse.

I. Facts and Procedural History

{¶ 2} On August 29, 2012, plaintiff filed a complaint in the Franklin County

Municipal Court alleging that it was the assignee of defendant's credit card account with

Citibank and that defendant owed $5,370.60 on this account. (R. 1.) Plaintiff alleged

defendant breached the account's agreement by failing to make payment as required.

{¶ 3} On October 25, 2012, defendant filed a motion to dismiss, asserting that

plaintiff failed to demonstrate that it was the assignee of defendant's Citibank account. (R.

4.) The trial court on November 12, 2012 dismissed defendant's motion to dismiss. (R. 6.)

No. 13AP-398 2

On November 19, 2012, defendant filed his answer, denying the allegations and asserting

that plaintiff's complaint failed to state a claim upon which relief could be granted. (R. 7.)

{¶ 4} On March 8, 2013, plaintiff filed a motion for summary judgment,

supporting its motion with the affidavit of Matthew Sowell, a representative of plaintiff,

and three pages of account statements. (R. 14.) Defendant responded with a

memorandum opposing summary judgment, asserting plaintiff was not entitled to

judgment as a matter of law since the evidence submitted in support of summary

judgment did not contain a record of the parties' agreement or the balance claimed by

plaintiff. (R. 12.) On April 17, 2013, the trial court granted plaintiff's motion for summary

judgment, finding no genuine issue of fact remained for trial. (R. 15.)

II. Assignments of Error

{¶ 5} Defendant appeals, assigning the following two errors:

I. THE TRIAL COURT ERRED BY GRANTING PLAINTIFF'S

MOTION FOR SUMMARY JUDGMENT BECAUSE THE

PLAINTIFF FAILED TO ESTABLISH A PRIMA FACIE CASE

FOR AN ACTION UPON AN ACCOUNT BASED ON

CONTRACT AND THE TRIAL COURT'S DECISION

SHOULD BE REVERSED.

II. THE TRIAL COURT ERRED BY GRANTING PLAINTIFF'S

MOTION FOR SUMMARY JUDGMENT BECAUSE THE

JUDGMENT ENTRY FAILED TO ADDRESS GENUINE

ISSUES OF MATERIAL FACT AND THE TRIAL COURT'S

DECISION SHOULD BE REVERSED.

Because defendant's assignments of error are interrelated, we will address them jointly.

III. Standard of Review

{¶ 6} An appellate court reviews summary judgment under a de novo standard.

Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio

Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is proper

only when the parties moving for summary judgment demonstrate: (1) no genuine issue of

material fact exists; (2) the moving parties are entitled to judgment as a matter of law;

and (3) reasonable minds viewing the evidence most strongly in favor of the nonmoving

party could reach but one conclusion, and that conclusion is adverse to the nonmoving

No. 13AP-398 3

party. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181

(1997).

{¶ 7} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis for the motion and identifying those portions of the

record demonstrating the absence of a genuine issue of material fact by pointing to

specific evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280,

293 (1996). If the moving party fails to satisfy its initial burden, the court must deny the

motion for summary judgment; however, if the moving party satisfies its initial burden,

summary judgment is appropriate unless the nonmoving party responds, by affidavit or as

otherwise provided under Civ.R. 56, with specific facts demonstrating a genuine issue

exists for trial. Id.; Hall v. Ohio State Univ. College of Humanities, 10th Dist. No. 11AP-

1068, 2012-Ohio-5036, ¶ 12, citing Henkle v. Henkle, 75 Ohio App.3d 732, 735 (12th

Dist.1991).

{¶ 8} "Trial courts should award summary judgment with caution, being careful

to resolve doubts and construe evidence in favor of the nonmoving party." Welco

Industries, Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993), citing Murphy v.

Reynoldsburg, 65 Ohio St.3d 356 (1992). "Even the inferences to be drawn from the

underlying facts contained in the evidentiary materials, such as affidavits and depositions,

must be construed in a light most favorable to the party opposing the motion." Hannah v.

Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998), citing Turner v. Turner, 67

Ohio St.3d 337, 341 (1993).

IV. Summary Judgment Improperly Granted

{¶ 9} Defendant contends that the trial court improperly granted summary

judgment because plaintiff failed to prove (1) that a contract existed between defendant

and Citibank, and (2) a summarization of the amount allegedly owed on the account.

Plaintiff responds that defendant waived any objections concerning the nature of the debt

and the amount due and owing by failing to file a motion for a more definite statement.

Plaintiff also contends that it pled a prima facie case sufficient to establish an account and

the amount remaining due from plaintiff. (Plaintiff's Brief, 27.)

{¶ 10} Civ.R. 10(D)(1) requires that "[w]hen any claim or defense is founded on an

account * * * a copy of the account * * * must be attached to the pleading. If the account

No. 13AP-398 4

* * * is not attached, the reason for the omission must be stated in the pleading." The

account attached to the complaint as required by Civ.R. 10(D)(1) " 'is the best evidence of

the transaction and becomes a part of the complaint for all purposes.' " Asset Acquisitions

Group, L.L.C. v. Gettis, 186 Ohio App.3d 586, 2010-Ohio-950, ¶ 14, quoting Point Rental

Co. v. Posani, 52 Ohio App.2d 183, 185 (10th Dist.1976). Here, regardless of whether

plaintiff complied with Civ.R. 10(D)(1) by attaching a copy of the account to its complaint,

this court has held that a defendant's failure to file a motion for a more definite statement

under Civ.R. 12(E) waives any objections regarding Civ.R. 10(D)(1). Ohio Receivables,

L.L.C. v. Dallariva, 10th Dist. No. 11AP-951, 2012-Ohio-3165, ¶ 36.

{¶ 11} Although defendant waived any objections to the complaint's compliance

with Civ.R. 10(D)(1), this court has previously stated that to establish a prima facie case in

an action to recover upon an account, the following "fundamentals" must be present:

An account must show the name of the party charged. It

begins with a balance preferably at zero, or with a sum recited

that can qualify as an account stated, but at least the balance

should be a provable sum. Following the balance, the item or

items, dated and identifiable by number or otherwise,

representing charges, or debits, and credits, should appear.

Summarization is necessary showing a running or developing

balance or an arrangement which permits the calculation of

the balance claimed to be due.

Brown v. Columbus Stamping & Mfg. Co., 9 Ohio App.2d 123 (10th Dist.1967). To

adequately plead and prove an account, "[i]t is not necessary that every transaction

between the parties be included." Hudson & Keyse, LLC v. Carson, 10th Dist. No. 07AP-

936, 2008-Ohio-2570, ¶ 13, modifying Brown. See also Wolf Automotive v. Rally Auto

Parts, Inc., 95 Ohio App.3d 130 (10th Dist.1994) (concluding that, although the account

did not start at a zero balance, it showed debits and credits that allowed the court to

determine the total claimed to be due and owing); Am. Express Travel Related Servs. v.

Silverman, 10th Dist. No. 06AP-338, 2006-Ohio-6374 (finding that four years of credit

card statements, two affidavits, and a copy of the cardholder's agreement constituted

adequate evidence to establish an account, since it was an "unreasonable burden" for the

plaintiff to provide 30 years of statements). Compare Equable Ascent Fin., L.L.C. v.

Christian, 196 Ohio App.3d 34, 2011-Ohio-3791, ¶ 16-17 (10th Dist.) (determining

No. 13AP-398 5

complaint insufficiently met standard for an account where no cardholder agreement

attached, statements did not reflect purchases or payments but only the final amount

owed).

{¶ 12} Here, the evidence submitted by plaintiff fails to adequately prove an

account. Plaintiff attached to its complaint three copies of partial account statements from

Citibank bearing defendant's name and a partially redacted account number. (R. 1) Each

of the account statements consists of two pages from the following periods: June 12

through July 12, 2006; January 10 through February 9, 2007; and February 9 through

March 12, 2007. (R. 1.) Notably, the account statements are incomplete in the record as

they each contain only two of the three noted pages from the periods they purport to

cover. (R. 1.) The statements do not begin at a balance of zero or contain an itemized list

of the purchases or actions taken by plaintiff to arrive at the balance on the statements.

{¶ 13} Plaintiff's complaint also includes an account summary provided by plaintiff

showing the alleged final balance on the account. (R. 1) However, the amount shown in

plaintiff's account summary does not show a running or developing balance, nor is it

possible to calculate the balance on the summary claimed to be due by reference to the

account statements in the record. See Brown at 123. For these reasons, plaintiff fails to

meet the minimum requirements for demonstrating the existence of an account under the

standard outlined in Brown. See Equable at ¶ 17.

{¶ 14} We note that the record lacks a copy of the alleged financial services

agreement between defendant and the institution that assigned its account to plaintiff.

Although it is sufficient for purposes of pleading to allege the existence of a financial

services agreement, a party cannot prevail on its claims without proving the existence of

an agreement. Carson at ¶ 12; FIA Card Servs., N.A. v. Ryan, 10th Dist. No. 09AP-193,

2009-Ohio-6660, ¶ 20.

{¶ 15} Finally, plaintiff did not supply a bill of sale or copy of the assignment

agreement pertaining to the alleged account between defendant and Citibank. "[A]n

alleged assignee who brings an action in his own name must allege and prove the

assignment." Ohio Kwik, Inc. v. O'Brien, 10th Dist. No. 92AP-494 (Sept. 17, 1992), citing

Zwick & Zwick v. Suburban Constr. Co., 103 Ohio App. 83 (8th Dist.1956). See also

Carson at ¶ 11 (noting plaintiff "could not prevail on the claims assigned by the bank

No. 13AP-398 6

without proving the existence of a valid assignment agreement"). Although plaintiff's

motion for summary judgment includes an affidavit from Matthew Sowell, an authorized

representative of plaintiff, stating that Citibank assigned all rights in the account in

question to plaintiff, such evidence is not proof of an assignment agreement sufficient to

protect defendant from multiple claims. Hudson & Keyse, L.L.C. v. Yarnevic-Rudolph,

7th Dist. No. 09 JE 4, 2010-Ohio-5938, ¶ 37 (finding summary judgment was improperly

granted where assignment and bill of sale did not demonstrate account in question was

assigned to claimant). See also First Union Natl. Bank v. Hufford, 146 Ohio App.3d 673,

2001-Ohio-2271, ¶ 20-21 (3d Dist.); Washington Mut. Bank, F.A. v. Green, 156 Ohio

App.3d 461, 2004-Ohio-1555, ¶ 31-32 (7th Dist.).

{¶ 16} The absence of the disputed credit card agreement, documents sufficient to

demonstrate an account, and the assignment agreement demonstrating plaintiff is the

assignee of the alleged account creates issues of material fact. Carson at ¶ 17; Riley

Petroleum Prods., L.L.C. v. Hilltop Drive, L.L.C., 7th Dist. No. 12 JE 16, 2013-Ohio-4359,

¶ 17. Compare Discover Bank v. Paoletta, 8th Dist. No. 95223, 2010-Ohio-6031, ¶ 7-14

(credit card issuer established a prima facie case for money owed on account by supplying

copy of the agreement between the parties, seven years of account statements, and

affidavit of account manager); Ohio Receivables, L.L.C. v. Dallariva, 10th Dist. No. 11AP-

951, 2012-Ohio-3165, ¶ 25-26.

{¶ 17} Because genuine issues of material fact remain for trial, it was improper to

grant summary judgment in favor of plaintiff. Accordingly, we sustain defendant's

assignments of error.

V. Disposition

{¶ 18} Having sustained defendant's two assignments of error, we reverse the

judgment of the Franklin County Municipal Court and remand for further proceedings.

Judgment reversed and cause remanded.

TYACK and DORRIAN, JJ., concur.

T. BRYANT, J., retired, of the Third Appellate District,

assigned to active duty under authority of the Ohio

Constitution, Article IV, Section 6(C).

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