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Case Information
Filed
2022-09-07
Status
CLOSED
Type
Civil Austintown
Docket
33 entries
Disposition
dismiss
Parties
Plaintiff
Midland Credit Management, Inc.
Defendant
Fox, Joseph
Lawyers
Docket Entries
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- Issue Date: 09/07/2022 Service: SUMMONS ISSUED Method: (A) CERTIFIED MAIL Cost Per: $0.00 FOX, JOSEPH 4344 WOODLEIGH LN YOUNGSTOWN, OH 44511 Tracking No: 941472669904218571877
- SUCCESSFUL SERVICE Method : (A) CERTIFIED MAIL Issued : 09/07/2022 Service : SUMMONS ISSUED Served : Return : 09/14/2022 On : FOX, JOSEPH Signed By : KEITH REYNOLDS Reason : (A) SUCCESSFUL SERVICE Comment : Tracking #: 941472669904218571877
- ANSWER FILED Attorney: SARNA, WAYNE W. (19546)
- HEARING SCHEDULED Event: CIVIL PRE TRIAL Date: 12/09/2022 Time: 9:40 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4
- NOTICE OF PHONE PRE TRIAL SENT TO ATTORNEY VIKTORIYA DYRDA AND ATTORNEY WAYNE SARNA
- ENTRY: PRE TRIAL HELD ON THE 9TH DAY OF DECEMBER,2022. COUNSEL FOR PLAINTIFF PRESENT (ATTY VIKTORIYA DYRDA). COUNSEL FOR DEFENDANT PRESENT(ATTY WAYNE W SARNA). DISCOVERY TO BE COMPLETED IN 60 DAYS. DISPOSITIVE MOTIONS, IF ANY, FILED IN 90 DAYS. SET BENCH TRIAL FOR 120 DAYS. /S/MAGISTRATE DONALD J DESANTO
- HEARING SCHEDULED-CONTINUED BY THE COURT Event: CIVIL TRIAL Date: 04/14/2023 Time: 11:30 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4 Result: CONTINUED BY JUDGE
- NOTICE OF CIVIL TRIAL SENT TO ATTY VIKTORIYA DYRDA AND ATTY WAYNE W SARNA
- HEARING SCHEDULED-CANCELLED BY THE COURT Event: CIVIL TRIAL Date: 05/05/2023 Time: 11:30 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4 Result: CONTINUED BY JUDGE
- NOTICE OF NEW CIVIL TRIAL DATE AND CANCELLED DATE SENT TO ATTY WAYNE W SARNA AND VIKTORIYA DYRDA
- PLAINTIFF'S MOTION FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT INSTANTER FILED BY Attorney: BROFMAN, TIMOTHY (96576)
- LEAVE TO FILE SUMMARY JUDGMENT GRANTED. /S/DJD /S/JUDGE SCOTT D HUNTER
- PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT INSTANTER FILED BY Attorney: BROFMAN, TIMOTHY (96576)
- HEARING SCHEDULED Event: NON-ORAL HEARING - MOTION FOR SUMMARY JUDGMENT Date: 05/05/2023 Time: 11:00 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4
- NOTICE OF NON ORAL HEARING SENT TO ATTY DYRDA AND ATTY SARNA
- FAXED PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT TO ATTORNEY SARNA
- DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT WITH ATTACHED AFFIDAVIT FILED BY Attorney: SARNA, WAYNE W. (19546)
- DECISION OF MAGISTRATE: THE PROCEEDINGS This matter came on for non-oral hearing on May 5, 3023 on the Motion for Summary Judgment filed by the Plaintiff on March 20, 2023. Also considered was the Defendant's Memorandum in Opposition filed April 15, 2023. PRESENT WERE Neither party nor counsel was required to appear as the matter was considered by way of non-oral hearing. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. Plaintiff filed its complaint on September 26, 2022. Plaintiff alleges that it acquired all right, title, and interest in a claim originally owed by Defendant to CitiBank, NA. Plaintiff alleges that there is due to the Plaintiff on such account the sum of $4,901.63. Plaintiff alleges that it notified Defendant of the assignment and requested payment, but no part of the balance has been paid. The Defendant filed an answer on September 20, 2022 generally denying the allegations of the complaint. Defendant acknowledged opening an account in the past with CitiBank, but denied all further allegations regarding assignment of the account to Plaintiff, Midland Credit Management. The Defendant further alleged that the Plaintiff failed to attach documentation reflecting assignment of the account and as such is not the real party in interest. The Defendant thereafter asserted a host of other affirmative defenses. 2. In its motion for summary judgment, Plaintiff argues that it acquired for valuable consideration all right, title, and interest to a claim originally owed by the defendant to Citibank, N.A. Plaintiff attached to its motion as Exhibit A a copy of the subject account. Plaintiff cites the applicable law regarding the requirements for summary judgment as per Civil Tule 56. Plaintiff attached in further support, as Exhibit B, an affidavit of one, Jeanette Ruff. Plaintiff maintains such affidavit reflects the alleged balance due of $4,901.63. Plaintiff further maintains that the defendant has produced no evidence to demonstrate that the amount claimed by the plaintiff was paid in full. Based upon such affidavit plaintiff argues reasonable minds could come to but one conclusion, specifically that summary judgment in favor of the plaintiff is warranted. 3. In the Defendant's memorandum in opposition, he initially argues that the Plaintiff has failed to prove the existence of the assignment of the account and that it is the real party in interest. Defendant asserts that the Plaintiff's action is predicated on an alleged account that started with Best Buy Credit Services. Defendant maintains that the Plaintiff's documents and exhibits fail to establish the connection and authority to transfer the account from Best Buy Credit Services to Citibank, N.A. and then to Plaintiff, Midland Credit Management, Inc. Defendant further maintains that a bill of sale without verification and identification is a self-serving allegation that the account has been sold. Defendant also challenges the affidavit of Plaintiff's employee, Jeanette Ruff. The Defendant maintains that such affidavit does not state the applicant's job responsibilities. He further argues that the affidavit does not specifically reference and incorporate any of the exhibits attached to the Plaintiff's motion for summary judgment. Defendant cites in support Target National Bank v. Enos, 2010-Ohio-6307, C.A. 25268 (OHCA9). The Magistrate disagrees noting that Plaintiffs affiant does reference a bill of sale, assignment, credit agreement and records regarding the account and states that such documents attached to the motion for summary judgment are true and correct copies of the originals. 4. The Magistrate finds that there is a genuine issue of material fact regarding the assignment of the underlying account, same clearly reflecting Best Buy Credit Services, to Citibank, N.A. and ultimately to Plaintiff, Midland Credit Management, Inc. It is assumed that there are, or may be, documents which reflect such a chain of transfers however such documentation is not attached to the plaintiff's motion for summary judgment and incorporated within a properly framed affidavit thereby precluding an order granting summary judgment. DECISION 1. Plaintiff's Motion for Summary Judgment is overruled. 2. Case to be set for trial in 45 days. IT IS SO ORDERED. /S/MAGISTRATAE 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).
- HEARING SCHEDULED Event: CIVIL TRIAL Date: 07/21/2023 Time: 11:30 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4
- DECISION OF MAGISTRATE AND NOTICE OF CIVIL TRIAL SENT TO ATTY WAYNE W SARNA AND ATTY VIKTORIYA DYRDA
- JOURNAL ENTRY ADOPTING THE MAGISTRATE'S DECISION: The attached decision was filed by the Magistrate of this Court on 5/19/23. 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
- FAXED NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE AT PLAINTIFF'S COSTS FILED BY Attorney: BROFMAN, TIMOTHY (96576)
- FAXED COPY OF VOLUNTARY DISMISSAL TO JAVITCH BLOCK LLC PER REQUEST
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Full Analytics Report
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- All docket entries
- Related cases and filings
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