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: misraan@misralaw.corn

ROBERT S. BELOVICH (0024187)9100 South Hills Blvd., Suite 320Broadview Heights, Ohio 44147(440) 838-8883Email: rsb@belovichlaw.comCounselfor 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: Steven.Janik@Janiklaw.com

Crystal. Maluchnik@Janiklaw. comE11yn.Mehendale@Janiklaw.com

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

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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.

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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.)

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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.)

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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, misraan@misralaw.com, and Robert S. Belovich, 9100 South Hills

Blvd., Suite 320, Broadview Heights, OH 44147, rsb@elovichlaw.com; and counsel for Javitch,

Block & Rathbone, LLC, James Oh, joh@jbandr.com and Mark C. Brncik,

mbrncik@jbandr.com, 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

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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