[Cite as Midland Funding, L.L.C. v. Snedeker, 2014-Ohio-887.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


MIDLAND FUNDING, LLC DBA                            :     JUDGES:
MIDLAND FUNDING DE LLC                              :
                                                    :
                                                    :     Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                           :     Hon. William B. Hoffman, J.
                                                    :     Hon. Patricia A. Delaney, J.
-vs-                                                :
                                                    :     Case No. 13-CA-56
                                                    :
ROBERT SNEDEKER AKA ROBERT                          :
W. SNEDEKER                                         :
                                                    :
                                                    :
       Defendant-Appellant                          :     OPINION


CHARACTER OF PROCEEDING:                                  Appeal from the Licking County
                                                          Municipal Court, Case No. 12 CVF
                                                          03066



JUDGMENT:                                                 REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                                   February 25, 2014




APPEARANCES:

For Plaintiff-Appellee:                                   For Defendant-Appellant:

AUDRA T. FUNK                                             DAVID C. MORRISON
Javitch, Block & Rathbone, LLC                            Morrison & Bindley
140 E. Town St., Suite 1250                               987 Professional Parkway
Columbus, OH 43215                                        Heath, OH 43056-1698
Licking County, Case No. 13-CA-56                                                     2

Delaney, J.

      {¶1} Defendant-Appellant Robert Snedeker aka Robert W. Snedeker appeals

the May 30, 2013 judgment entry of the Licking County Municipal Court.

                       FACTS AND PROCEDURAL HISTORY

      {¶2} On January 31, 2013, Plaintiff-Appellee Midland Funding, LLC DBA

Midland Funding DE LLC filed an Amended Complaint against Defendant-Appellant

Robert Snedeker aka Robert W. Snedeker in the Licking County Municipal Court. In the

complaint, Midland alleged breach of contract, claim on account, money lent/money

paid, and unjust enrichment. The complaint stated that in 1999, Snedeker entered into

a contract for the extension of credit with Target National Bank. Snedeker or someone

authorized by him made purchases on the Target credit card account XXXX-XXXX-

XXXX-0675. Snedeker failed to make payments on the Target credit account. On

November 22, 2011, Midland acquired the right, title, and interest in Snedeker’s Target

credit account from the assignor, Target National Bank. Midland notified Snedeker of

the assignment of the credit account and demanded that Snedeker pay the balance due

on the account. Snedeker did not remedy the credit account default. The complaint

alleged Snedeker owed $6,500.07 on the credit account.

      {¶3} Snedeker filed a Motion to Dismiss on February 19, 2013. The trial court

denied the motion.

      {¶4} On April 8, 2013, Midland filed its Motion for Summary Judgment.           In

support of its motion, Midland filed Snedeker’s responses to Midland’s interrogatories

and request for production of documents, and requests for admission. Midland also

filed the affidavit of Tanya Johnson, legal specialist who has access to account records
Licking County, Case No. 13-CA-56                                                         3


for Midland Credit Management, Inc., servicer of accounts on behalf of Midland. In her

affidavit, Johnson stated that Midland is the current owner of, and/or successor to, the

obligation sued upon by Midland. She averred that Target National Bank assigned to

Midland all the rights, title, and interest to Snedeker’s credit card account XXXX-XXXX-

XXXX-0675. She states that attached to the affidavit are records regarding the account

and/or payment(s) received: bill of sale and assignment and/or billing statements. The

bill of sale, dated November 22, 2011, is a one page document reflecting the sale,

assignment, and transfer to Midland of “Accounts listed in the electronic file identified in

Appendix 1 hereto (the “Accounts”) as provided in the Asset Sale Agreement dated

June 10, 2011.” Appendix 1 is not attached to the bill of sale. Next attached to the

affidavit is a document with Snedeker’s credit account information. The bottom of the

document contains the following statement: “Data printed by Midland Credit

Management, Inc. from electronic records provided by Target National Bank and Target

Receivables LLC pursuant to the bill of sale/assignment of accounts transferred on or

about 11/22/2011 in connection with the sale of accounts from Target National Bank

and Target Receivables LLC to Midland Funding LLC.” Finally, the affidavit provides

copies of credit card statements showing purchases and payments on account number

XXXX-XXXX-XXXX-0675 starting on May 1, 2009 with a balance of $6,498.33 and the

credit card agreement.

       {¶5} Snedeker filed his response to the motion for summary judgment on April

23, 2013.
Licking County, Case No. 13-CA-56                                                     4


      {¶6} The trial court granted Midland’s Motion for Summary Judgment on May

30, 2013. The trial court awarded Midland judgment in the amount of $6,500.07 with

statutory interest at a rate of 3.00% per annum from the date of the judgment.

      {¶7} It is from this decision Snedeker now appeals.

                             ASSIGNMENTS OF ERROR

      {¶8} Snedeker raises two Assignments of Error:

      {¶9} “I. THE SUMMARY JUDGMENT IS CONTRARY TO LAW, BECAUSE

APPELLEE, MIDLAND FUNDING, LLC, FAILED TO DEMONSTRATE AN ABSENCE

OF GENUINE ISSUE OF MATERIAL FACT CONCERNING THE QUESTION

WHETHER IT WAS THE REAL PARTY IN INTEREST.

      {¶10} “II. THE SUMMARY JUDGMENT IS CONTRARY TO LAW, BECAUSE

MIDLAND FAILED TO DEMONSTRATE AN ABSENCE OF ANY GENUINE ISSUE OF

MATERIAL FACT CONCERNING THE AMOUNT DUE.”

                                      ANALYSIS

                                 Standard of Review

      {¶11} Snedeker’s two Assignments of Error concern the trial court’s application

of the summary judgment standard. We refer to Civ.R. 56(C) in reviewing a motion for

summary judgment which provides, in pertinent part:

      Summary judgment shall be rendered forthwith if the pleading,

      depositions, answers to interrogatories, written admissions, affidavits,

      transcripts of evidence in the pending case and written stipulations of fact,

      if any, timely filed in the action, show that there is no genuine issue as to

      any material fact and that the moving party is entitled to judgment as a
Licking County, Case No. 13-CA-56                                                        5


       matter of law. * * * A summary judgment shall not be rendered unless it

       appears from such evidence or stipulation and only from the evidence or

       stipulation, that reasonable minds can come to but one conclusion and

       that conclusion is adverse to the party against whom the motion for

       summary judgment is made, such party being entitled to have the

       evidence or stipulation construed most strongly in the party's favor.

       {¶12} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d

264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot

rest on the allegations or denials in the pleadings, but must set forth “specific facts” by

the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

       {¶13} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421,

429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996).

                                I. Real Party in Interest

       {¶14} Snedeker argues in his first Assignment of Error the trial court erred in

granting summary judgment in favor of Midland because there was a genuine issue of

material fact whether Midland was the real party in interest. We agree.
Licking County, Case No. 13-CA-56                                                      6


      {¶15} Midland brought its complaint on account based on an alleged assignment

of the credit account from Target National Bank to Midland. 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 other words, in order to

prevail, the assignee must prove that they are the real party in interest for purposes of

bringing the action. Worldwide Asset Purchasing, L.L.C. v. Sandoval, 5th Dist. Stark

No. 2007–CA–00159, 2008–Ohio–6343, ¶ 26.           An assignee cannot prevail on the

claims assigned by another holder without proving the existence of a valid assignment

agreement. Sandoval, ¶ 26 citing Natl. Check Bur., Inc. v. Cody, 8th Dist. Cuyahoga

No. 84208, 2005–Ohio–283, citing Zwick & Zwick, supra.

      {¶16} Midland, as the party seeking summary judgment on its claims, bears the

responsibility of identifying those portions of the record before the trial court that

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264

(1996). To support its claim that there is no genuine issue of material fact that it was

assigned Snedeker’s credit card account, Midland provided the affidavit of Tanya

Johnson, legal specialist who has access to account records for Midland Credit

Management, Inc., servicer of accounts on behalf of Midland. In her affidavit, Johnson

stated that Midland is the current owner of, and/or successor to, the obligation sued

upon by Midland. She averred that Target National Bank assigned to Midland all the

rights, title, and interest to Snedeker’s credit card account XXXX-XXXX-XXXX-0675.
Licking County, Case No. 13-CA-56                                                      7


She states that attached to the affidavit are records regarding the account and/or

payment(s) received: bill of sale and assignment and/or billing statements.

       {¶17} The bill of sale, dated November 22, 2011, is a one page document

reflecting the sale, assignment, and transfer to Midland of “Accounts listed in the

electronic file identified in Appendix 1 hereto (the “Accounts”) as provided in the Asset

Sale Agreement dated June 10, 2011.” Appendix 1 is not attached to the bill of sale nor

is it provided as Civ.R. 56 evidence.

       {¶18} Next attached to the affidavit is a document with Snedeker’s credit

account information. The bottom of the document contains the following statement:

“Data printed by Midland Credit Management, Inc. from electronic records provided by

Target National Bank and Target Receivables LLC pursuant to the bill of

sale/assignment of accounts transferred on or about 11/22/2011 in connection with the

sale of accounts from Target National Bank and Target Receivables LLC to Midland

Funding LLC.” The document is silent as to whether the data was pulled from Appendix

1 referred to in the bill of sale. The affidavit of Tanya Johnson does not refer to this

document.

       {¶19} The affidavit provides copies of credit card statements showing purchases

and payments on account number XXXX-XXXX-XXXX-0675 starting in May 1, 2009

with a balance of $6,498.33. Finally, the affidavit provides a copy of the credit card

agreement issued by Target National Bank.

       {¶20} In Midland Funding, L.L.C. v. Biehl, 5th Dist. Stark No. 2013 CA 00035,

2013-Ohio-4150, this court analyzed whether the Civ.R. 56 evidence presented by the

plaintiff Midland Funding in support of its motion for summary judgment established
Licking County, Case No. 13-CA-56                                                       8


there was no genuine issue of material fact that it was assigned a credit card account

and was entitled to judgment as a matter of law on its claim on account. We stated:

             In the case sub judice, attached to Appellee Midland's motion for

      summary judgment was an affidavit from Melissa Haag, who works in the

      capacity of a records specialist for an agency in St. Cloud, Minnesota

      servicing accounts for appellee.     In her affidavit, Haag stated that the

      HSBC account at issue had been assigned to appellee. See Exhibit A.

      Appellee also attached account statements to the summary judgment

      motion showing that purchases and payments had been made on said

      HSBC account. See Exhibit B. In addition, appellee attached a single-

      page bill of sale showing a transfer of various accounts from HSBC to

      Appellee Midland. See Exhibit C. The bill of sale makes reference to

      “purchased receivables listed on the Sale File” which purports to be

      attached as another exhibit; however, such an exhibit is not attached, nor

      is it found elsewhere in the summary judgment documents.

             Appellant, in support of his argument, directs us to Hudson &

      Keyse, LLC v. Yarnevic–Rudolph, 7th Dist. Jefferson No. 09 JE 4, 2010–

      Ohio–5938. In that case, the Seventh District Court of Appeals concluded

      that even though the purported assignee (Hudson & Keyse) had attached

      an affidavit to its summary judgment motion averring that Hudson & Keyse

      was the assignee of assignor's (Beneficial Company's) interest in a

      personal loan agreement, “ * * * due to the fact that the agreement

      referred to in the assignment and bill of sale is not attached, it is not clear
Licking County, Case No. 13-CA-56                                                     9

      that [borrower's] account is among the assigned accounts.” Id. at ¶ 24.

      The Court, having earlier reiterated what it labeled the “how and when”

      requirement set forth in Washington Mut. Bank, F.A. v. Green, 156 Ohio

      App.3d 461, 806 N.E.2d 604, 2004–Ohio–1555, thus concluded as

      follows: “To the extent that there is no evidence that [borrower's] personal

      loan agreement was among the accounts assigned to [Hudson & Keyse]

      by Beneficial, the trial court erred as a matter of law when it entered

      summary judgment.” Hudson & Keyse, LLC v. Yarnevic–Rudolph at ¶ 24.

             We find a similar result is warranted in the case sub judice. In other

      words, although appellee herein attached (1) the affidavit from Ms. Haag

      generally averring that the HSBC Bank Nevada N.A. account no. xxxx–

      xxxx–xxxx–4894 had been assigned to appellee, (2) copies of several

      credit card statements showing purchases and payments on account no.

      xxxx–xxxx–xxxx–4894, and (3) the one-page bill of sale between HSBC

      Card Services and Appellee Midland from May 28, 2009, we hold there

      was insufficient information to enable the trial court to determine as a

      matter of law that account no. xxxx–xxxx–xxxx–4894 was actually

      included in the group of accounts affected by the bill of sale and thus duly

      assigned to appellee for purposes of summary judgment.

Midland Funding, L.L.C. v. Biehl, 5th Dist. No. 2013 CA 00035, 2013-Ohio-4150, ¶ 22-

24. See, Midland Funding LLC v. Farrell, 1st Dist. Hamilton No. C-120674, 2013-Ohio-

5509 (Cunningham, J., dissenting).
Licking County, Case No. 13-CA-56                                                       10


       {¶21} The Civ.R. 56 evidence presented by Midland in support of the

assignment of Snedeker’s credit card account is substantially similar to that presented

in Biehl. The difference in the present case is that Midland also submitted a document

with Snedeker’s account information that Midland alleges was culled from the data

referred to in the bill of sale. The statement on the document reads: “Data printed by

Midland Credit Management, Inc. from electronic records provided by Target National

Bank and Target Receivables LLC pursuant to the bill of sale/assignment of accounts

transferred on or about 11/22/2011 in connection with the sale of accounts from Target

National Bank and Target Receivables LLC to Midland Funding LLC.”               While the

affidavit of Tanya Johnson refers to the attached bill of sale, assignment, and billing

statement, the affidavit makes no mention of this document. This document is not

Appendix 1 referred to in the bill of sale.

       {¶22} At the appellate level, we conduct a de novo review of a motion for

summary judgment from a posture most favorable to the non-moving party. In this

case, following the precedent of Biehl, we find there is insufficient information to enable

the trial court to determine as a matter of law that account number XXXX-XXXX-XXXX-

0675 was included in the group of accounts affected by the bill of sale and referred to by

Appendix 1. A genuine issue of material fact remains whether Snedeker’s account was

among those properly assigned to Midland.

       {¶23} Snedeker’s first Assignment of Error is sustained.
Licking County, Case No. 13-CA-56                                                    11


                                    II. Balance Due

        {¶24} Snedeker argues in his second Assignment of Error the trial court erred in

granting summary judgment because there are genuine issues of material fact as to the

amount due.

        {¶25} In order to In order to establish a prima facie case for money owed on an

account, we held in Worldwide Asset Purchasing, L.L.C. v. Sandoval the plaintiff must

show:

        “[a]n account must show the name of the party charged and contain: (1) a

        beginning balance (zero, or a sum that can qualify as an account stated,

        or some other provable sum); (2) listed items, or an item, dated and

        identifiable by number or otherwise, representing charges, or debits, and

        credits; and (3) summarization by means of a running or developing

        balance, or an arrangement of beginning balance and items which permits

        the calculation of the amount claimed to be due.” Gabriele v. Reagan

        (1988), 57 Ohio App.3d 84, 87, 566 N.E.2d 684, quoting Brown v.

        Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 223 N.E.2d

        373, paragraph three of the syllabus. “[A]n action upon an account may

        be proved by the introduction of business records showing the existence

        of the account.” Wolf Automotive v. Rally Auto Parts, Inc. (1994), 95 Ohio

        App.3d 130, 137, 641 N.E.2d 1195. See, generally, Raymond Builders

        Supply, Inc. v. Slapnicker, 11th Dist. No.2003-A-0040, 2004-Ohio-1437, at

        ¶ 8.

Sandoval, 5th Dist. Stark No. 2007-CA-00159, 2008-Ohio-6343, ¶ 27.
Licking County, Case No. 13-CA-56                                                      12


       {¶26} We determined in the first Assignment of Error there was a genuine issue

of material fact as to whether Midland is the real party in interest, an essential element

of Midland’s claim on account. Based on this conclusion, it is premature to determine

whether Midland has demonstrated the remaining elements to its claim on account.

                                     CONCLUSION

       {¶27} For the foregoing reasons, we find the judgment of the Licking County

Municipal Court is reversed and remanded for further proceedings consistent with this

opinion and law.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.
