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Case Information
Filed
2024-08-06
Status
CLOSED
Type
Civil Boardman
Docket
20 entries
Parties
Plaintiff
Security Credit Services Llc
Defendant
Morgan Dunn, Liam
Lawyers
Docket Entries
- $0.00
- PERSONAL SERVICE HAS BEEN REQUESTED BY: ATTY SLOVIN Receipt: 322671 Date: 08/06/2024
- BOARDMAN TWP FEES FOR PERSONAL SERVICE. PERSONALLY SERVED TO LIAM MORGAN DUNN ON 8/7/24 BY SGT PTL GRIMES Receipt: 323910 Date: 08/30/2024
- INVOICE ISSUED CIVIL INVOICE Sent on: 08/08/2024 10:27:54.63
- Issue Date: 08/08/2024 Service: SUMMONS ISSUED Method: (B) CERTIFIED MAIL Cost Per: $ MORGAN DUNN, LIAM 122 INDIANOLA ROAD BOARDMAN, OH 44512 Tracking No: 9414726699042225737490
- ANSWER FILED
- HEARING SCHEDULED Event: CIVIL PRE TRIAL (B) Date: 12/09/2024 Time: 9:45 am Judge: DESANTO, DONALD Location: COUNTY COURT # 2
- UNSUCCESSFUL SERVICE Method : (B) CERTIFIED MAIL Issued : 08/08/2024 Service : SUMMONS ISSUED Served : Return : 09/03/2024 On : MORGAN DUNN, LIAM Signed By : NOT DELIVERABLE AS ADDRESSED Reason : (B) UNSUCCESSFUL Comment : NOT DELIVERABLE AS ADDRESSED Tracking # : 9414726699042225737490
- FAILURE OF SERVICE SENT TO ATTY./PLTF. FAILURE OF SERVICE Sent on: 09/03/2024 15:41:27.14
- MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS FILED BY DEFENDANT.
- HEARING SCHEDULED Event: NON ORAL HEARING (B) Date: 10/21/2024 Time: 12:00 pm Judge: DESANTO, DONALD Location: COUNTY COURT # 2
- This matter came on for non-oral hearing on October 21, 2024 on the defendant's Motion to Compel Arbitration and Stay Proceedings filed September 13, 2024. 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's complaint filed August 6, 2024 concerns an alleged breach of the obligation to repay a certain promissory note for which the plaintiff claims there is an outstanding balance of $10,476.24. Service of the complaint was perfected by personal service upon the defendant on August 7, 2024. The defendant timely filed an answer on September 3, 2024 generally denying the allegations of the plaintiff's complaint and setting forth various affirmative defenses. 2. In his motion to compel arbitration and stay proceedings the defendant alleges that attached to his motion, and also to the complaint, is a copy of the agreement by and between the parties which provides for arbitration. Pursuant to such agreement the defendant requests that the court direct the matter into arbitration and that these proceedings be stayed pending the outcome of such arbitration. The Court notes that the plaintiff has filed no response in opposition to the defendant's request for arbitration. 3. The magistrate notes that in reviewing the defendant's answer the affirmative defense of arbitration has not been raised. Failure to raise such defense in the answer is not however fatal based upon the Civil Rules, R.C. 2711.02 and the case law cited below. Civil Rule 8 provides that, . . . (C) Affirmative defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, want of consideration for a negotiable instrument, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. . . . Despite same, such defense was raised by motion on September 13, 2023, a mere 10 days after the defendant's answer. R.C. 2711.02 provides that, . . . (B) If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration. . . . 4. The arbitration clause in the parties' agreement provides that, Claims to Be Arbitrated. All Claims between you and us, and against our affiliates, agents and representatives, that arise from or relate to the Loan, a previous related loan or the parties' relationship must, if you or we choose, be resolved by arbitration and not in the court. If a Claim is arbitrated you and we waive the right to a jury trial or court trial on those claims. The term Claim means all claims or disputes of any kind, such as for breach of this note or violation of law, statute, regulation or ordinance, that could have been brought in court. . . The Court notes that the plaintiff's claim alleging failure to pay a pre-existing note by and between the parties is encompassed within the specific language of the parties' arbitration agreement. 5. The Seventh District Court of Appeals in Bernat v. EK Real Estate Fund 1 LLC, 2024 Ohio 5043 - Ohio Court of Appeals, 7th Appellate Dist. 2024 recently had occasion to address a similar factual situation and provided the following guidance, . . . 29} This Court has set out the relevant law to apply when considering whether a party has waived its right to arbitrate: As a general rule, either party to a contract of arbitration may waive the contractual right to arbitrate. Rock v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1992), 79 Ohio App.3d 126, 128, 606 N.E.2d 1054. For instance, a plaintiff waives the right to arbitrate by filing a complaint. Id. For the defendant, the right to arbitrate can be preserved by seeking enforcement of the arbitration clause. Harsco Corp. v. Crane Carrier Co. (1997), 122 Ohio App.3d 406, 412, 701 N.E.2d 1040. Failure to move for a stay pursuant to R.C. 2711.02, coupled with responsive pleadings, will constitute a defendant's waiver. Peterson v. Crockett Constr. (Dec. 7, 1999), 7th Dist. No. 99-CO-2, 1999 WL 1138586, citing Mills v. Jaguar-Cleveland Motors, Inc. (1980), 69 Ohio App.2d 111, 113, 430 N.E.2d 965. To prove that a defending party waived its right to arbitration, a complainant is required to demonstrate that the defending party knew of an existing right to arbitration but acted inconsistently with that right. Harsco at 414, 701 N.E.2d 1040. "The essential question is whether, based on the totality of the circumstances, the party seeking arbitration has acted inconsistently with the right to arbitrate." Id. at 413-414, 701 N.E.2d 1040. Circumstances which may be considered by the court as pertinent to the issue are: (1) any delay in the requesting party's demand to arbitrate via a motion to stay judicial proceedings and an order compelling arbitration; (2) the extent of the requesting party's participation in the litigation prior to its filing a motion to stay the judicial proceeding, including a determination of the status of discovery, dispositive motions, and the trial date; (3) whether the requesting party invoked the jurisdiction of the court by filing a counterclaim or third-party complaint without asking for a stay of the proceedings; and (4) whether the non-requesting party has been prejudiced by the requesting party's inconsistent acts. Id. Hoppel, 2011-Ohio-1183, 44-46 (7th Dist.). 6. Based upon all of the foregoing the magistrate finds that the defendant has raised the affirmative defense of arbitration and that arbitration is mandated pursuant to the terms of the parties' agreement and R.C. 2711.02. Decision 1. The defendant's motion requesting arbitration is granted. Matter is to be referred to arbitration as per the terms of the parties' agreement. 2. Case stayed pending the outcome of arbitration. 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).
- THE ATTACHED DECISION WAS FILED BY THE MAGISTRATE OF THIS COURT ON OCTOBER 28, 2024 . 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. ACCORDING, 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/ JOSEPH M HOUSER/MKD
- $125.00
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- $4.40
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