[Cite as Calvary SPV I, L.L.C. v. Workman, 2019-Ohio-4750.]


                                    CalCOURT OF APPEALS
                                   FAIRFIELD COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



CALVARY SPV, I LLC                               :            JUDGES:
                                                 :            Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                       :            Hon. Craig R. Baldwin, J.
                                                 :            Hon. Earle E. Wise, Jr., J.
-vs-                                             :
                                                 :
STEPHANIE WORKMAN                                :            Case No. 2019 CA 00020
                                                 :
        Defendant-Appellant                      :            OPINION




CHARACTER OF PROCEEDING:                                      Appeal from the Municipal Court,
                                                              Case No. 18CVF02296




JUDGMENT:                                                     Reversed and Remanded




DATE OF JUDGMENT:                                             November 18, 2019




APPEARANCES:

For Plaintiff-Appellee                                        For Defendant-Appellant

MATTHEW S. SALYER                                             JASON A. PRICE
4645 Executive Drive                                          126 East Chestnut Street
Columbus, OH 43220                                            Lancaster, OH 43130
Fairfield County, Case No. 2019 CA 00020                                               2



Wise, Earle, J.

      {¶ 1} Defendant-Appellant, Stephanie Workman, appeals the February 26, and

April 10, 2019 entries of the Municipal Court of Fairfield County, Ohio, overruling her

objections and adopting the magistrate's decision granting summary judgment to Plaintiff-

Appellee, Cavalry SPV I, LLC.

                        FACTS AND PROCEDURAL HISTORY

      {¶ 2} On July 17, 2018, appellee filed a complaint against appellant for non-

payment on a credit card issued by Citibank, N.A. The complaint alleged claims on

account and unjust enrichment.

      {¶ 3} On December 27, 2018, appellee filed a motion for summary judgment,

claiming genuine issues of material fact did not exist. A hearing before a magistrate was

held on February 15, 2019. By decision filed February 15, 2019, the magistrate granted

the motion, finding appellee had established the right to recover damages and was

entitled to judgment in the amount of $11,353.24 plus interest and costs. By entry filed

February 26, 2019, the trial court adopted the magistrate's decision.

      {¶ 4} Appellant filed objections. By entry filed April 10, 2019, the trial court

overruled the objections and upheld its February 26, 2019 entry.

      {¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶ 6} "THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE'S MOTION

FOR SUMMARY JUDGMENT."
Fairfield County, Case No. 2019 CA 00020                                               3




                                             I

       {¶ 7} In her sole assignment of error, appellant claims the trial court erred in

granting summary judgment to appellee as appellee failed to carry its burden of

demonstrating that it is the real party in interest. We agree.

       {¶ 8} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):



              Civ.R. 56(C) provides that before summary judgment may be

       granted, it must be determined that (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) it appears from the evidence that reasonable minds

       can come to but one conclusion, and viewing such evidence most strongly

       in favor of the nonmoving party, that conclusion is adverse to the party

       against whom the motion for summary judgment is made. State ex. rel.

       Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

       citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d

       466, 472, 364 N.E.2d 267, 274.



       {¶ 9} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and
Fairfield County, Case No. 2019 CA 00020                                               4


evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).

      {¶ 10} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13:



      It is well established the party seeking summary judgment bears the burden

     of demonstrating that no issues of material fact exist for trial. Celotex Corp.

     v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

     The standard for granting summary judgment is delineated in Dresher v. Burt

     (1996), 75 Ohio St.3d 280 at 293: " * * * 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 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 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
Fairfield County, Case No. 2019 CA 00020                                               5


     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." The record on summary judgment must be viewed in the light most

     favorable to the opposing party. Williams v. First United Church of Christ

     (1974), 37 Ohio St.2d 150.



      {¶ 11} As explained by our colleagues from the Eighth District in Moreland v.

Ksiazek, 8th Dist. Cuyahoga No. 83509, 2004-Ohio-2974, ¶ 25:



             Civ.R. 56(C) provides an exclusive list of materials that a trial court

      may consider when deciding a motion for summary judgment.              Those

      materials are affidavits, depositions, transcripts of hearings in the

      proceedings, written admissions, answers to interrogatories, written

      stipulations, and the pleadings, if timely filed. Civ.R. 56(C). Other types of

      documents may be introduced as evidentiary material only through

      incorporation by reference in a properly framed affidavit. Martin v. Cent.

      Ohio Transit Auth. (1990), 70 Ohio App.3d 83, 89, 590 N.E.2d 411.

      Documents that have not been sworn, certified, or authenticated by way of

      affidavit "have no evidentiary value." Mitchell v. Ross (1984), 14 Ohio

      App.3d 75, 470 N.E.2d 245.



      {¶ 12} Appellee attached several documents to its December 27, 2018 motion for

summary judgment. One document is a December 28, 2017 Bill of Sale and Assignment
Fairfield County, Case No. 2019 CA 00020                                                  6


with Citibank, N.A. through which appellee purchased various credit card accounts. The

Bill of Sale states Citibank sold and assigned "the Accounts described in Exhibit 1 to the

Addendum and the final electronic file." The Addendum is not attached. There are two

documents titled "Exhibit 1": one is "EXHIBIT 1 (CONT.)" which does not reference the

subject account in any way, and the other is "Exhibit 1" which references a purchase date

of December 28, 2017, and lists appellant's name with a redacted account number

showing an outstanding balance of $11,353.24. The Bill of Sale was verified by the

affidavit of Sean Cooney, a senior Vice President for Citibank. Mr. Cooney did not list

appellant's name or reference the subject account as being part of the sale.             No

documents were attached to the affidavit.       Appellee also attached unauthenticated

statements issued by Citibank showing as of June 8, 2015, appellant purportedly owed

$11,353.24 on the account.

       {¶ 13} In her memorandum contra filed February 15, 2019, appellant argued that

appellee failed to produce sufficient evidence of a lawful assignment and therefore the

summary judgment motion should be denied. We agree.

       {¶ 14} This case has a very similar fact pattern to the case of Midland Funding,

LLC v. Snedeker, 5th Dist. Licking No. 13-CA-56, 2014-Ohio-887, wherein this court

reversed the grant of summary judgment to the plaintiff, finding there existed a genuine

issue of material fact as to whether the defendant's account was properly assigned to the

plaintiff. First, this court noted at ¶ 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.' Zwick & Zwick v. Suburban Const. Co., 103 Ohio App. 83, 84,

134 N.E.2d 733 (8th Dist.1956)." In Midland, the plaintiff produced the affidavit of a legal
Fairfield County, Case No. 2019 CA 00020                                                    7


specialist who had access to the account records and averred the plaintiff was the current

owner of the debt due and owing. The affiant confirmed that the plaintiff was assigned

the subject account and specifically listed the defendant's name and account number.

Attached to the affidavit were the bill of sale and billing statements. The bill of sale

reflected the assignment of " 'Accounts listed in the electronic file identified in Appendix 1

hereto * * *.' " Appendix 1 was not attached nor provided as Civ.R. 56 evidence.

       {¶ 15} Also attached to the affidavit was a document containing the defendant's

credit account information. This document was silent "as to whether the data was pulled

from Appendix 1 referred to in the bill of sale." Midland at ¶ 18. The affiant did not refer

to this document. The affidavit contained copies of credit card statements and a copy of

the credit card agreement. In reviewing all of the materials submitted by the plaintiff, this

court found at ¶ 22, "insufficient information to enable the trial court to determine as a

matter of law" that the subject account was included in the bill of sale and referred to by

Appendix 1.

       {¶ 16} In reviewing the case sub judice, we find the Civ.R. 56 evidence to be even

less than produced in the Midland case. Here, Mr. Cooney did not reference appellant's

name or account number. The affidavit merely confirmed the bill of sale which was not

attached to his affidavit. The "Addendum" was not attached to the Bill of Sale, and the

reference in the Addendum to "Exhibit 1" is ambiguous given the two different exhibits,

neither of which were attached to the Bill of Sale or Mr. Cooney's affidavit.

       {¶ 17} Following the sound analysis and reasoning of the Midland case, we too

find insufficient evidence to enable the trial court to determine as a matter of law that the
Fairfield County, Case No. 2019 CA 00020                                                 8


subject account was properly assigned to appellee. Accord Midland Funding, LLC v.

Biehl, 5th Dist. Stark No. 2013 CA 00035, 2013-Ohio-4150.

       {¶ 18} Upon review, we find a genuine issue of material fact to exist and therefore,

the trial court erred in granting summary judgment to appellee.

       {¶ 19} The sole assignment of error is granted.

       {¶ 20} The judgment of the Municipal Court of Fairfield County, Ohio is hereby

reversed, and the matter is remanded to said court for further proceedings consistent with

this opinion.

By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.


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