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Case Information
Filed
2021-10-17
Status
CLOSED
Type
Civil Austintown
Docket
34 entries
Disposition
judgment
Parties
Plaintiff
U.s. Bank National Association
Defendant
Jones, Judith
Lawyers
Docket Entries
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- PROCESS SERVER GRANTED
- Issue Date: 10/20/2021 Service: SUMMONS ISSUED Method: (A) CERTIFIED MAIL Cost Per: $0.00 JONES, JUDITH 4 THRUSH AVE LAKE MILTON, OH 44429 Tracking No: 941472669904218572273
- SUCCESSFUL SERVICE Method : (A) CERTIFIED MAIL Issued : 10/20/2021 Service : SUMMONS ISSUED Served : 10/27/2021 Return : 10/29/2021 On : JONES, JUDITH Signed By : JUDITH JONES Reason : (A) SUCCESSFUL SERVICE Comment : Tracking #: 941472669904218572273
- RETURN OF SERVICE SUCCESSFUL BY PERSONAL SERVICE ON JUDITH JONES ON 10/21/21 BY PROCESS SERVER FRED L DELUCA
- ANSWER FILED BY ATTY FOR DEFENDANT Attorney: IPRI ESQ, STEVEN M (87597)
- HEARING SCHEDULED Event: CIVIL PRE TRIAL Date: 01/28/2022 Time: 9:40 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4
- NOTICE OF PHONE PRE TRIAL SENT TO ATTY STEVEN M IPRI AND ATTY SHAWN R RYAN
- NOTICE OF SUBSTITUTION OF COUNSEL FILED BY Attorney: FITZGIBBON, BRITTANY (91763)
- PRE-TRIAL HELD ON THE 28TH DAY OF JANUARY, 2022. COUNSEL FOR PLAINTIFF PRESENT(ATTY BRITTANY FITZGIBBON). COUNSEL FOR DEFENDANT PRESENT(ATTY STEVEN M IPRI). DISCOVERY COMPLETED AS PER REPRESENTATIVES OF COUNSEL. DISPOSITIVE MOTIONS, IF ANY, FILED IN 60 DAYS. TRIAL TO BENCH. SET BENCH TRIAL FOR 90 DAYS. /S/MAGISTRATE DONALD J DESANTO
- PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT WITH ATTACHED AFFIDAVIT FILED BY Attorney: ARMSTRONG, KIRSTEN R (91424)
- HEARING SCHEDULED-CANCELLED/DECSISION/JUDGMENT FILED Event: CIVIL TRIAL Date: 05/06/2022 Time: 11:00 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4 Result: JOURNAL ENTRY FILED
- NOTICE OF CIVIL TRIAL SENT TO ATTY STEVEN M IPRI AND ATTY BRITTANY FITZGIBBON
- HEARING SCHEDULED Event: NON-ORAL HEARING - MOTION FOR SUMMARY JUDGMENT Date: 03/18/2022 Time: 11:00 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4
- NOTICE OF NON ORAL HEARING SENT TO ATTY STEVEN M IPRI AND ATTY BRITTANY FITZGIBBON
- BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT FILED BY Attorney: IPRI ESQ, STEVEN M (87597)
- PLAINTIFF'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT FILED BY Attorney: ARMSTRONG, KIRSTEN R (91424)
- MAGISTRATE HAS FILE UNDER REVIEW
- DECISION OF MAGISTRATE: THE PROCEEDINGS This matter came on for non-oral hearing on March 18, 2022 on the Plaintiff's Motion for Summary Judgment filed February 8, 2022, the Defendant's Brief in Opposition filed February 18, 2022 and the Plaintiff's Reply filed February 24, 2022 to the defendant's brief in opposition. PRESENT WERE Neither party nor counsel was required to appear as the matter was considered by way of non-oral hearing. FINDINGS OF FACT 1. The Plaintiff filed its complaint on September 29, 2021. In such complaint plaintiff alleges that it extended a credit account to the defendant and that by the use and retention of such account the defendant became bound by the terms and conditions of the credit agreement. The plaintiff alleges that the defendant defaulted under the terms of the agreement and that by virtue of same there is presently an amount due and owing from the defendant of $8,563.47. Plaintiff requests judgment for such sum with no request for interest or costs. The defendant filed an answer on November 12, 2021 generally denying the allegations and averments of the complaint and asserting the defense of failure to state a claim upon which relief can be granted. 2. In its motion for summary judgment plaintiff argues that the defendant applied for and received a charge account from the plaintiff. Plaintiff maintains that by accepting and using the account the defendant became bound by the terms and conditions of the credit card agreement. Plaintiff attached in support an affidavit as exhibit A as well as the credit agreement, Exhibit 2, and billing statements as Exhibit 1. Plaintiff's affiant, one, Belinda Boston, states she is familiar with the recordkeeping of the plaintiff and that the billing statements and other documents referenced by the plaintiff were made and kept in the ordinary course of its business. The affiant further indicated that the referenced account was opened on or about March 20, 2015 by one, Judith Jones. The affidavit further indicated that regular billing statements were provided to the account holder and no objection was ever lodged to the balances shown as due and owing. The affiant indicates that attached to the motion as Exhibit 1 are true and accurate copies of statements from the account holder's account. She further indicated that attached Exhibit 2 is a true and correct copy of the applicable agreement which governs the account. Plaintiff maintains that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law 3. In her response in opposition the defendant argues that the plaintiff has failed to provide any evidence that the defendant assented, in writing, to any interest rate above the statutory limits as set forth in R.C. 5703.47. The defendant cites in support Citibank, N.A. v. Hine, 2019-Ohio-464, for the proposition that for entitlement to a different rate than the statutory interest rate R. C. 1343.03(A) requires that there must be a written contract between the parties and the contract must provide a rate of interest with respect to the money that becomes due and payable. While the defendant concedes that the issuance and acceptance of a credit card creates a contractual relationship, she argues that Hine establishes that there must be a written and signed contract where interest is to exceed the statutory limits. The defendant argues that the disputed interest rate constitutes a genuine issue of material fact precludes summary judgment. 4. In its reply to the defendant's response in opposition the plaintiff argues that it has shown the existence of a contract by providing the cardmember agreement and several account statements establishing the defendant's acceptance of those terms through her repeated use of the credit card. Plaintiff argues that it has established the contract and the breach thereby switching the burden to the defendant to prove operative facts or evidence that genuine issues remain for trial. Plaintiff further argues that it did provide an interest rate with regard to moneys due and payable and therefore is in compliance with R.C. 1343.0 03(A). 5. Civil Rule 56(E) provides that, 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. Based upon the affidavit of Plaintiff's representative, the documents referenced in such affidavit, being Exhibits 1 and 2, and taking into account that the defendant has filed no affidavit nor provided any evidentiary materials in support of her position as recognized in civil rule 56(E), the Magistrate finds that there is no genuine issue of material fact and that the plaintiff is owed the sum of $8,563.47. DECISION 1. Judgment for the Plaintiff for $8,563.47 with no award of interest or costs as none has been requested. IT IS SO ORDERED. /S/MAGISTRATE DONALD J DESANTO Pursuant to Civil Rule 53(D)(3)(a)(iii) a party shall not assign as error the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civil Rule 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civil Rule 53(D)(3)(b).
- DECISION OF MAGISTRATE SENT TO ATTY BRITTANY FITZGIBBON AND ATTY SETEN M IPRI
- AMENDED DECISION OF MAGISTRATE: THE PROCEEDINGS This matter came on for non-oral hearing on March 18, 2022 on the Plaintiff's Motion for Summary Judgment filed February 8, 2022, the Defendant's Brief in Opposition filed February 18, 2022 and the Plaintiff's Reply filed February 24, 2022 to the defendant's brief in opposition. PRESENT WERE Neither party nor counsel was required to appear as the matter was considered by way of non-oral hearing. FINDINGS OF FACT 1. The Plaintiff filed its complaint on September 29, 2021. In such complaint plaintiff alleges that it extended a credit account to the defendant and that by the use and retention of such account the defendant became bound by the terms and conditions of the credit agreement. The plaintiff alleges that the defendant defaulted under the terms of the agreement and that by virtue of same there is presently an amount due and owing from the defendant of $8,563.47. Plaintiff requests judgment for such sum with no request for interest or costs. The defendant filed an answer on November 12, 2021 generally denying the allegations and averments of the complaint and asserting the defense of failure to state a claim upon which relief can be granted. 2. In its motion for summary judgment plaintiff argues that the defendant applied for and received a charge account from the plaintiff. Plaintiff maintains that by accepting and using the account the defendant became bound by the terms and conditions of the credit card agreement. Plaintiff attached in support an affidavit as exhibit A as well as the credit agreement, Exhibit 2, and billing statements as Exhibit 1. Plaintiff's affiant, one, Belinda Boston, states she is familiar with the recordkeeping of the plaintiff and that the billing statements and other documents referenced by the plaintiff were made and kept in the ordinary course of its business. The affiant further indicated that the referenced account was opened on or about March 20, 2015 by one, Judith Jones. The affidavit further indicated that regular billing statements were provided to the account holder and no objection was ever lodged to the balances shown as due and owing. The affiant indicates that attached to the motion as Exhibit 1 are true and accurate copies of statements from the account holder's account. She further indicated that attached Exhibit 2 is a true and correct copy of the applicable agreement which governs the account. Plaintiff maintains that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law 3. In her response in opposition the defendant argues that the plaintiff has failed to provide any evidence that the defendant assented, in writing, to any interest rate above the statutory limits as set forth in R.C. 5703.47. The defendant cites in support Citibank, N.A. v. Hine, 2019-Ohio-464, for the proposition that for entitlement to a different rate than the statutory interest rate R. C. 1343.03(A) requires that there must be a written contract between the parties and the contract must provide a rate of interest with respect to the money that becomes due and payable. While the defendant concedes that the issuance and acceptance of a credit card creates a contractual relationship, she argues that Hine establishes that there must be a written and signed contract where interest is to exceed the statutory limits. The defendant argues that the disputed interest rate constitutes a genuine issue of material fact precludes summary judgment. 4. In its reply to the defendant's response in opposition the plaintiff argues that it has shown the existence of a contract by providing the cardmember agreement and several account statements establishing the defendant's acceptance of those terms through her repeated use of the credit card. Plaintiff argues that it has established the contract and the breach thereby switching the burden to the defendant to prove operative facts or evidence that genuine issues remain for trial. Plaintiff further argues that it did provide an interest rate with regard to moneys due and payable and therefore is in compliance with R.C. 1343.0 03(A). 5. Civil Rule 56(E) provides that, 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. Based upon the affidavit of Plaintiff's representative, the documents referenced in such affidavit, being Exhibits 1 and 2, and taking into account that the defendant has filed no affidavit nor provided any evidentiary materials in support of her position as recognized in civil rule 56(E), the Magistrate finds that there is no genuine issue of material fact and that the plaintiff is owed the sum of $8,563.47. DECISION 1. Judgment for the Plaintiff against the Defendant, Judith Jones, for $8,563.47 with no award of interest or costs as none has been requested. IT IS SO ORDERED. /S/MAGISTRATE DONALD J DESANTO Pursuant to Civil Rule 53(D)(3)(a)(iii) a party shall not assign as error the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civil Rule 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civil Rule 53(D)(3)(b).
- AMENDED MAGISTRATE'S DECISION SENT TO ATTY BRITTANY FITZGIBBON AND ATTY STEVEN M IPRI
- JOURNAL ENTRY ADOPTING THE MAGISTRATE'S DECISION: The attached decision was filed by the Magistrate of this Court on 422/22. The Court finds that no written objections have been timely filed. The Court has conducted an independent review of the Magistrate's Decision and finds that such Decision is well supported and there is no error or defect on the face of such Decision. Accordingly, such attached Magistrate's Decision is adopted in its entirety, pursuant to Civil Rule 53(D)(4), as a permanent Order of the Court. /S/JUDGE SCOTT D HUNTER
- ADOPTION OF MAGISTRATE'S DECISION AND AMENDED DECISION OF MAGISTRATE SENT TO ATTY BRITTANY FITZGIBBON AND ATTY STEVEN M IPRI
- FAXED MOTION TO WITHDRAW AS DEFENSE COUNSEL FILED BY Attorney: IPRI ESQ, STEVEN M (87597)
- JUDGMENT ENTRY: THE COURT HAS BEFORE IT DEFENDANT COUNSEL'S MOTION TO WITHDRAW. DEFENDANT HAS TERMINATED THE SERVICES OF STEVEN M IPRI WHO SOCKS AN ORDER GRANTING THE MOTION TO WITHDRAW. ACCORDINGLY IT IS HEREBY ORDERED THAT DEFFENDANT'S COUNSEL IS PERMITTED TO WITHDRAW AT ATTORNEY OF RECORD. IT IS FURTHER ORDERED THAT DEFENDNAT HAS 30 DAYS TO OBTAIN NEW COUNSEL IF NEEDED. SO ORDERED. /S/JUDGE SCOTT D HUNTER
- ENTRY OF 10/26/22 SENT TO ATTY BRITTANY FITZGIBBON, ATTY STEVEN M IPRI, AND JUDITH JONES
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Full Analytics Report
- Complete case narrative
- Judge details and rulings
- Case disposition and outcome
- All docket entries
- Related cases and filings
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