[Cite as Absolute Resolutions X, L.L.C. v. Ratta, 2018-Ohio-3661.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

ABSOLUTE RESOLUTIONS X, LLC                                 C.A. No.   28414

        Appellee

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
RAJIV RATTA                                                 AKRON MUNICIPAL COURT
                                                            COUNTY OF SUMMIT, OHIO
        Appellant                                           CASE No.   16CV-03737

                                 DECISION AND JOURNAL ENTRY

Dated: September 12, 2018



        TEODOSIO, Presiding Judge.

        {¶1}     Rajiv Ratta appeals the judgment of the Akron Municipal Court granting

summary judgment in favor of Absolute Resolutions X, LLC. We reverse and remand.

                                                       I.

        {¶2}     Absolute Resolutions X, LLC (“ARX”) filed its complaint in May 2016, for

nonpayment of account, unjust enrichment, and breach of contract against Rajiv Ratta. The

claims were premised upon Mr. Ratta’s alleged nonpayment of money due on an account

originally held by Citibank, N.A., which ARX alleged it had been assigned. ARX filed its

motion for summary judgment in September 2016, and Mr. Ratta filed a response. The trial

court granted the motion for summary judgment on October 14, 2016. Mr. Ratta now appeals,

raising three assignments of error, which we have reordered for the purposes of our analysis.
                                                 2


                                                II.

                              ASSIGNMENT OF ERROR THREE

       THE TRIAL COURT ERRED IN GRANTING THE APPELLEE’S MOTION
       FOR SUMMARY JUDGMENT AS APPELLEE FILED ITS MOTION AFTER
       THE COURT ORDERED FILING DEADLINE WITHOUT ESTABLISHING
       EXCUSABLE NEGLECT FOR THIS UNTIMELY FILING.

       {¶3}    In his third assignment of error, Mr. Ratta argues the trial court erred in accepting

and considering a dispositive motion that was untimely filed. We disagree.

       {¶4}    In its order of August 23, 2016, the trial court set a dispositive motion deadline of

September 26, 2016. ARX filed its motion for summary judgment on September 28, 2016,

without having sought an extension or leave from the trial court. Mr. Ratta filed a response to

the motion for summary judgment on October 3, 2016, and the trial court granted the motion for

summary judgment on October 14, 2016.

       {¶5}    Mr. Ratta has failed to show how the untimely filing of the motion for summary

judgment prejudiced a substantial right, and we therefore conclude any error was harmless. See

Civ.R. 61.

       {¶6}    Mr. Ratta’s third assignment of error is overruled.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED IN GRANTING THE APPELLEE’S MOTION
       FOR SUMMARY JUDGMENT AS THE APPELLEE WAS NOT AN
       ASSIGNEE OF CITIBANK AND DID NOT HAVE STANDING TO
       COMMENCE THIS ACTION.

       {¶7}    In his first assignment of error, Mr. Ratta argues that ARX failed to establish

standing because it was not the assignee of the account in question.

       {¶8}    Appellate review of an award of summary judgment is de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56
                                                3


when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is

entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of

the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is

adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977),

citing Civ.R. 56(C). A court must view the facts in the light most favorable to the non-moving

party and must resolve any doubt in favor of the non-moving party. Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 358–359 (1992). A trial court does not have the liberty to choose among

reasonable inferences in the context of summary judgment, and all competing inferences and

questions of credibility must be resolved in the nonmoving party’s favor. Perez v. Scripps–

Howard Broadcasting Co., 35 Ohio St.3d 215, 218 (1988).

       {¶9}    The Supreme Court of Ohio has set forth the nature of this burden-shifting

paradigm:

       [A] party seeking summary judgment, on the ground that the nonmoving party
       cannot prove its case, bears the initial burden of informing the trial court of the
       basis for the motion, and identifying those portions of the record that demonstrate
       the absence of a genuine issue of material fact on the essential element(s) of the
       nonmoving party’s claims. The moving party cannot discharge its initial burden
       under Civ.R. 56 simply by making a conclusory assertion that the nonmoving
       party has no evidence to prove its case. Rather, the moving party must be able to
       specifically point to some evidence of the type listed in Civ.R. 56(C) which
       affirmatively demonstrates that the nonmoving party has no evidence to support
       the nonmoving party’s claims. If the moving party fails to satisfy its initial
       burden, the motion for summary judgment must be denied. However, if the
       moving party has satisfied its initial burden, the nonmoving party then has a
       reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that
       there is a genuine issue for trial and, if the nonmovant does not so respond,
       summary judgment, if appropriate, shall be entered against the nonmoving party.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

       {¶10} To support a motion for summary judgment the court may consider “the

pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of
                                                 4


evidence, and written stipulations of fact, if any * * *.” Civ.R. 56(C). Additional documentation

may be submitted if it is properly incorporated into an affidavit. Civ.R. 56(E). “No evidence or

stipulation may be considered except as stated in [Civ.R. 56].” Civ.R. 56(C).

        {¶11} In its motion for summary judgment, ARX alleges that it is the assignee of an

account that Mr. Ratta originally opened with Citibank, N.A. Attached to ARX’s motion for

summary judgment is the affidavit of Mark Naiman who avers to be “an authorized

representative of Absolute Resolutions X, LLC.” No further information is given as to his job

title or responsibilities. The affidavit provides “[t]hat Plaintiff is the assignee of Rajiv Ratta’s

account formerly with Citibank, N.A., account number [****************], and that Absolute

Resolutions X, LLC, having purchased this account, is the owner of the debt and is the real party

in interest.”

        {¶12} Also attached to ARX’s motion for summary judgment is an “AFFIDAVIT OF

SALE OF ACCOUNT BY ORIGINAL CREDITOR,” from Patricia Hall, the Financial Account

Manager of Citibank, N.A. The affidavit, which was prepared prior to the litigation, provides:

“On or about November 21, 2014, [Citibank, N.A.] sold a pool of charged-off accounts (the

Accounts) by a Purchase and Sale Agreement and a Bill of Sale to ABSOLUTE

RESOLUTIONS CORP. As part of the sale of the Accounts, certain electronic records were

transferred on individual account to the debt buyer.”

        {¶13} Other documents attached to ARX’s motion for summary judgment, but not

incorporated by affidavit, include a document prepared by Patricia Hall purporting to be a “BILL

OF SALE AND ASSIGNMENT, dated November 21, 2014, * * * by Citibank, N.A. * * * to

Absolute Resolutions Corp.” The document states: “For value received and subject to the terms

and conditions of the Purchase and Sale Agreement dated November 18, 2014, between Buyer
                                                  5


and the Bank (the ‘Agreement’), the Bank does hereby transfer, sell, assign, convey, grant,

bargain, set over and deliver to Buyer, and to Buyer’s successors and assigns, the Accounts

described in Exhibit 1 and the final electronic file.” The “Exhibit 1” referenced by the affidavit

is not attached or included with the motion for summary judgment.

       {¶14} Also attached but not incorporated by affidavit is an “ASSIGNMENT OF

RECEIVABLES” executed by the assignor, Absolute Resolutions Corp., to the assignee,

Absolute Resolutions X, LLC. The document states “Assignor is the owner of the receivables

identified as SAS003, comprised of 246 Accounts with a total face value of $1,813,112.91, and

listed on Exhibit A attached hereto * * *.” The document further provides that “Assignor does

hereby transfer, assign and deliver to Assignee, all of its right, title and interest in and to the

Receivables free and clear of all liens and encumbrances thereon.” The “Exhibit A” referenced

by the affidavit is not attached or included with the motion for summary judgment.

       {¶15} “In an action on an account, when an assignee is attempting to collect on an

account in filing a complaint, the assignee must ‘allege and prove the assignment.’” Natl. Check

Bur., Inc. v. Ruth, 9th Dist. Summit No. 24241, 2009-Ohio-4171, ¶ 6, quoting Worldwide Asset

Purchasing, L.L.C. v. Sandoval, 5th Dist. Stark No. 2007-CA-00159, 2008-Ohio-6343, ¶ 26,

quoting Zwick & Zwick v. Suburban Constr. Co., 103 Ohio App. 83, 84 (8th Dist.1956). “In

other words, in order to prevail, the assignee must prove that they are the real party in interest for

purposes of bringing the action. An assignee cannot prevail on the claims assigned by another

holder without proving the existence of a valid assignment agreement.” Id. quoting Sandoval at ¶

26. Failure to prove the assignment of an account leaves a hole in the chain of title and bars an

alleged assignee from recovering on the account. Id. “It is fundamental that a party commencing

litigation must have standing to sue in order to present a justiciable controversy and invoke the
                                                 6


jurisdiction of the * * * court.” Citibank N.A. v. Rowe, 9th Dist. Lorain No. 12CA010217, 2013-

Ohio-523, ¶ 8, quoting Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-

Ohio-5017, ¶ 41.

       {¶16} We conclude there are several holes in the chain of title. ARX has failed to prove

that Mr. Ratta’s account was one of the accounts included in the pool sold by Citibank to

Absolute Resolutions Corp. ARX has likewise failed to prove that Mr. Ratta’s account was

assigned by Absolute Resolutions Corp. to Absolute Resolutions X, LLC. We further note that

the “BILL OF SALE AND ASSIGNMENT” and the “ASSIGNMENT OF RECEIVABLES”

attached to the motion for summary judgment were not incorporated by affidavit and did not

otherwise qualify as evidence allowed by Civ.R. 56.

       {¶17} ARX has failed to prove that it was the real party in interest for the purposes of

bringing the action. Mr. Ratta’s first assignment of error is sustained.

                                ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED IN GRANTING THE APPELLEE’S MOTION
       FOR SUMMARY JUDGMENT AS THE APPELLEE FAILED TO PROVIDE
       EVIDENTIARY MATERIAL ESTABLISHING ANY VALID CLAIM
       AGAINST THE APPELLANT.

       {¶18} In his second assignment of error, Mr. Ratta argues the trial court erred in

granting summary judgment because ARX failed to provide a copy of a cardholder agreement

and documents showing the charges made on the account. We do not reach the merits of this

argument because our resolution of assignment of error one has rendered it premature. We

therefore decline to address assignment of error two. See App.R. 12(A)(1)(c).
                                                 7


                                                III.

       {¶19} Mr. Ratta’s first assignment of error is sustained. His third assignment of error is

overruled. We decline to address the merits of the second assignment of error as it has been

rendered premature. The judgment of the Akron Municipal Court is reversed and remanded.

                                                                               Judgment reversed
                                                                                  and remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT




CALLAHAN, J.
CONCURS.
                                      8


CARR, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

RAJIV RATTA, pro se, Appellant.

ANTHONY J. HUSPASKA and ROBERT LEE HENGGE, Attorney at Law, for Appellee.
