[Cite as Liberty Credit Servs. Assignee v. Yonker, 2013-Ohio-3976.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


LIBERTY CREDIT SERVICES ASSIGNEE                         :            OPINION
OF OR SUCCESSOR IN INTEREST TO
CAPITAL ONE,                                             :
                                                                      CASE NO. 2012-P-0096
          Plaintiff-Appellee,                            :

        - vs -                                           :

CRYSTAL YONKER,                                          :

          Defendant/                                     :
          Third Party Plaintiff-Appellant,
                                                         :
        - vs -
                                                         :
SLOVIN & ASSOCIATES, LPA, et al.,
                                                         :
          Third Party Defendants-Appellees.


Civil Appeal from the Portage County Court of Common Pleas.
Case No. 2010 CV 0525.

Judgment: Reversed and remanded.


Alan H. Abes and Elizabeth M. Shaffer, 255 East Fifth Street, Suite 1900, Cincinnati,
OH 45202 (For Plaintiff-Appellee).

Anand N. Misra, The Misra Law Firm, L.L.C., 3659 Green Road, Suite 100,
Beachwood, OH 44122; and Robert S. Belovich, 9100 South Hills Blvd., Suite 300
Broadview Heights, OH 44147 (For Defendant/Third Party Plaintiff-Appellant).

Franklin C. Malemud, James O’Connor, and Holly Marie Wilson, Reminger & Co.,
L.P.A., 1400 Midland Building, 101 Prospect Avenue, West, Cleveland, OH 44115-
1093 (For Third Party Defendants-Appellees).
TIMOTHY P. CANNON, P.J.

       {¶1}   Appellant, Crystal Yonker, appeals the judgment of the Portage County

Court of Common Pleas requiring arbitration and dismissing, with prejudice, her claim

against appellees Liberty Credit Services, assignee of or successor in interest to Capital

One (“Liberty”), and Slovin & Associates, L.P.A., Randy Slovin, Esq. and Bradley

Council, Esq. (collectively “Slovin”). For the following reasons, we reverse and remand

for proceedings consistent with this opinion.

       {¶2}   On March 17, 2009, Slovin, as counsel for Liberty, filed a complaint in the

Portage County Municipal Court against Yonker to collect a debt of $517.18 that Liberty

claimed Yonker owed on a credit card account.           Liberty amended its complaint to

include a number of documents to establish the existence of the account and the

amount of the debt, and to demonstrate that Capital One provided Yonker with notice of

the obligation.

       {¶3}   Yonker filed an amended answer denying all of the allegations in the

complaint and asserting a counterclaim against Liberty, Slovin, and John Does 1-10

alleging a violation of the Fair Debt Collection Practices Act; the Ohio Consumer

Practices Act; fraud; defamation; abuse of process; and civil conspiracy. Yonker further

asserted a class action against Liberty, Slovin, and John Does 1-10 claiming a violation

of the Fair Debt Collection Practices Act; deceptive, unfair, or unconscionable acts;

abuse of process; civil conspiracy; and defamation. The case was transferred to the

Portage County Court of Common Pleas due to the counterclaim exceeding the

monetary jurisdictional limit of the municipal court.




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      {¶4}   Slovin filed a notice of removal from the common pleas court to federal

court; however, Yonker filed a motion to remand, which was granted.

      {¶5}   Thereafter, the trial court issued a case management order.            Liberty

moved to compel arbitration and dismiss the case, followed by Slovin’s motion for the

same relief. Both Liberty and Slovin attached the affidavit of Slovin then filed motions to

stay discovery only as to the issues unrelated to the motions to compel arbitration. The

trial court granted Slovin’s motion and issued an order limiting discovery to that

necessary for Yonker to defend the motions to compel arbitration.

      {¶6}   For nearly a year, Yonker conducted limited discovery relative to the

motion to compel. Yonker then filed a combined opposition to the motions to compel.

      {¶7}   In the July 24, 2012 judgment entry, the trial court found that the action

“arises from a credit card debt owed by Yonker to Capital One Services, Inc., which was

ultimately assigned to Liberty.” Further, the trial court recognized that the credit card

contract “allows either party to demand arbitration of any dispute between them.”

      {¶8}   The arbitration agreement at issue states, in relevant part:

             You and we agree that either you or we may, at either party’s sole
             election that any Claim (as defined below) be resolved by binding
             arbitration. * * *

             ‘Claim’ means any claim, controversy or dispute of any kind or
             nature between you and us.

             A. This definition includes, without limitation, any Claim that in any
             way arises from or relates to * * *

             this Arbitration Provision (including whether any Claim is subject to
             arbitration)

             any billing or collection matter relating to your account.

             any other matters relating to your account or relationship with us.



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             ***

             This definition also includes, without limitation, any Claim
             regardless of how or when it is brought (for example, as an initial
             claim, counterclaim, cross-claim, interpleading or third-party claim).

      {¶9}   The trial court found that neither Liberty nor Slovin had waived their right

of arbitration, and therefore, Liberty’s and Slovin’s motions to compel arbitration and to

dismiss Yonker’s counterclaims and class certification were granted.

      {¶10} Yonker appealed and assigns the following errors:

             [1.] The trial court committed prejudicial error in finding that the
             appellees had not waived any right to arbitration by electing to
             litigate the claims.

             [2.] The trial court committed prejudicial error in finding that Liberty,
             as a claimed secondary assignee, has established a continuous
             chain of title.

             [3.] The trial court committed prejudicial error in failing to determine
             whether appellees were intended beneficiaries of the alleged
             arbitration agreement.

             [4.] The trial court committed prejudicial error in finding that
             appellee Liberty, as claimed assignee, continued to have a right to
             demand arbitration when the claimed assignor (Capital One Bank)
             was itself foreclosed from arbitration by court order.

             [5.] The trial court committed prejudicial error in finding that Ms.
             Yonker’s debt collection violation counterclaims were subject to the
             alleged arbitration agreement, when the Complaint on which the
             counterclaims are premised was itself not based on the alleged
             agreement.

             [6.] The trial court committed prejudicial error in granting appellees’
             motion to require arbitration without permitting Ms. Yonker the
             opportunity to obtain necessary discovery as to the defenses of
             fraud, fraud in the inducement, and unconscionability.

             [7.] The trial court committed prejudicial error in granting appellees’
             motion to require arbitration without considering the prohibitive cost
             of arbitration imposed on Ms. Yonker in the alleged agreement.



                                             4
       {¶11} We have held that a ruling on a motion to stay proceedings pending

arbitration is a final, appealable order pursuant to R.C. 2711.02. River Oaks Homes,

Inc. v. Krann, 11th Dist. Lake No., 2008-L-166, 2009-Ohio-5208, ¶39. Here, Yonker

moved for an order to stay arbitration, which was denied. That order, therefore, falls

within the purview of R.C. 2711.02, and the judgment is a final, appealable order

properly before this court.

       {¶12} Generally, the standard of review for a decision granting or denying a

motion to stay proceedings pending arbitration is abuse of discretion. Id. at ¶41. For

example, this court reviews a trial court’s decision as to whether a party waived

arbitration for an abuse of discretion.

       {¶13} A trial court’s grant or denial of a stay based solely upon questions of law,

however, is reviewed under a de novo standard. Buyer v. Long, 6th Dist. Fulton No. F-

05-012, 2006-Ohio-472, ¶6. Therefore, this court reviews de novo a trial court’s legal

conclusion as to whether a party is contractually bound by an arbitration clause.

       {¶14} At the outset, we address whether Liberty and Slovin have a right to assert

arbitration. Yonker applied for and was issued a Capital One credit card whereupon

she incurred debt; Liberty alleges Capital One sold, assigned, and transferred accounts

to Global Acceptance Credit Company, LP (“Global’).         Thereafter, Liberty claims it

entered into a Purchase and Sale Agreement with Global, assigning all rights, title, and

interest on certain accounts, including Yonker’s account. In the motions to compel,

Liberty and Slovin contend the trial court should compel arbitration as to Yonker’s

counterclaims because she agreed to binding arbitration of all disputes arising out of the

Capital One credit card account agreement (the “Agreement”). Liberty and Slovin argue



                                            5
that all of Yonker’s counterclaims arise out of and are related to the credit card account

and fall within the scope of the binding arbitration clause contained in the Agreement.

       {¶15} Under her second assignment of error, Yonker maintains that Liberty, as

assignee, has failed to establish the chain of title from the original lender, Capital One.

       {¶16} 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 v. Zwick, 103 Ohio App. 83, 84 (8th Dist.1986). In other words, in order to

prevail, the assignee must prove it is 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. (Emphasis added.)

H&S Fin., Inc. v. Davidson, 2d Dist. Montgomery No. 24291, 2011-Ohio-4290, ¶24.

       {¶17} Attached to Liberty’s and Slovin’s motions to compel arbitration was the

affidavit of Mitchell Johnston, the Vice President of Liberty.        With respect to the

transaction from Global to Liberty, Mr. Johnston averred that on June 8, 2007, Liberty

entered into a Purchase and Sale Agreement with Global. The Purchase and Sale

Agreement was attached. Additionally, the Assignment and Bill of Sale was attached,

stating, in part, that Global has “entered into a Loan Sale Agreement * * * for the sale of

accounts described in Schedule A thereof to Liberty.”

       {¶18} With respect to the transaction between Capital One and Global, the

affidavit stated that Capital One had sold accounts to Global assigning all rights, title,

and interest on the accounts. The Bill of Sale was attached to the affidavit. That Bill of

Sale stated that Capital One “for valuable consideration * * * hereby sells, assigns and

transfers the Primary–LV Portfolio PDS201 Accounts as described in Exhibit 1 of this




                                             6
Agreement, to [Global.]” A Receivable Agreement dated January 31, 2007, was also

attached to the affidavit stating, inter alia, that Capital One sold, assigned, and

transferred “all right, title and interest in the Accounts identified in the Sale File specified

in Exhibit 1 of the Agreement * * * entitled 20070130.PDS03Q. SLDFLE.csv * * * to

Global.”

       {¶19} Based on the information attached to Liberty’s and Slovin’s motions to

compel, we agree with Yonker that Liberty has not established a chain of title to

establish its interest in the account at issue. Although appellees attached the affidavits

establishing the sale of accounts from Capital One to Global and from Global to Liberty,

there was no evidence presented that Yonker’s specific account was sold, assigned and

transferred. For example, Yonker’s account is not specifically identified as an account

being within the Primary–LV Portfolio PDS201 Accounts or the Sale File, identified as

20070130.PDS03Q.SLDFLE.csv—i.e., those accounts that were sold, assigned, and

transferred from Capital One to Global. Therefore, Liberty did not meet its burden as

assignee, and neither Liberty nor Slovin could rely upon the arbitration clause in the

Agreement specified above.

       {¶20} We further note that Slovin submitted the affidavit of Richard Napolitano,

Senior Extended Operations Associate by Capital One Services, stating, inter alia, that

the Customer Agreement attached to the affidavit, which includes the arbitration

agreement, was provided to Yonker upon opening her account with Capital One. Mr.

Napolitano also averred that Yonker incurred debt on the “Account,” “which was later

sold to [Liberty].”   Again, there is no evidence that Yonker’s specific Capital One

account was sold, assigned, and transferred to Global and from Global to Liberty.




                                               7
       {¶21} Liberty contends that the issue of whether it is a proper assignee entitled

to demand arbitration should, in any event, be determined by the arbitrator.            That

suggestion is not sensible. Liberty decided to file suit in court. Accordingly, the court

must determine whether they have a legal right to demand arbitration.

       {¶22} Yonker’s second assignment of error has merit.

       {¶23} This, however, does not conclude our analysis. On remand, it is possible

that Liberty and Slovin could take further steps to establish standing and to demonstrate

a right to demand arbitration based upon the language of the arbitration clause outlined

herein. As a result, in the interest of judicial economy, we must address whether the

trial court abused its discretion in finding that Liberty and Slovin had not waived their

right to arbitration. As such, we address Yonker’s first and seventh assignment of error

in a consolidated fashion.

       {¶24} Under her first assignment of error, Yonker argues that while courts will

regularly enforce a contract for arbitration, the right to arbitration under the contract may

be waived when the party asserting the right engages in conduct inconsistent with the

right to arbitrate. Yonker maintains that Liberty and Slovin waived their right to arbitrate

the dispute involved herein, as both failed to assert it as an affirmative defense and

participated in litigation for 27 months, and because Liberty initially chose the forum by

filing the complaint against Yonker.        Yonker further claims, under her seventh

assignment of error, that the trial court failed to consider the prohibitive cost of

arbitration.




                                             8
      {¶25} To support the argument that Liberty and Slovin waived their right to

arbitration, Yonker cites to this court’s opinion in EMCC Invest v. Rowe, 11th Dist.

Portage No. 2011-P-0053, 2012-Ohio-4462, where we stated:

             ‘It is well-established that the right to arbitration can be waived. * *
             * “A party can waive his right to arbitrate under an arbitration
             clause by filing a complaint.” Glenmoore Builders, Inc. v. Kennedy,
             11th Dist. No. 2001-P-0007, 2001-Ohio-8777, 2001 Ohio App.
             LEXIS 5449, *9 (Dec. 7, 2001) * * *. “‘“When the defendant [files]
             its answer in that suit without demanding arbitration, it, in effect,
             [agrees] to the waiver.”’” Hoffman v. Davidson, 11th Dist. No. 3909,
             1988 Ohio App. LEXIS 773, *5 (Mar. 11, 1988), quoting Mills v.
             Jaguar-Cleveland Motors, Inc., 69 Ohio App.2d 111, 113 (1980).

             ‘To prove waiver, the opposing party merely needs to show: (1) that
             the party waiving the right knew of the existing right of arbitration
             and (2) that the party acted inconsistently with that right. * * *

             ‘“Active participation in a lawsuit * * * evidencing an acquiescence
             to proceeding in a judicial rather than arbitration forum has been
             found to support a finding of waiver.” Griffith [v. Linton, 130 Ohio
             App.3d 746, 751, 721 N.E.2d 146 (1998)].’

Rowe at ¶33-35, quoting Hogan v. Cincinnati Finl. Corp., 11th Dist. Trumbull No. 2003-

T-0034, 2004-Ohio-3331, ¶22-25.

      {¶26} In Rowe, this court found the appellees waived their right to arbitration

because the parties engaged in the discovery process, filed motions for summary

judgment, addressed the question of class certification, and engaged in mediation

without ever asserting the right to arbitration.      Nearly 28 months after filing the

complaint, the appellees filed a motion to compel arbitration. We held that based on the

record before us, the appellees acted inconsistently with the right to arbitrate. Next, we

addressed the prejudice suffered by the appellant who had expended considerable

resources by filing numerous pleadings in the trial court, including dispositive motions.

In finding that the appellees waived their right to arbitrate, we reasoned that the



                                            9
appellees should not be permitted to engage in litigation practice to the extent indicated

and then decide, unilaterally, that forum shopping would be in their best interests.

        {¶27} We find the reasoning employed in Rowe applicable to the instant case.

Here, Liberty and Slovin chose to file an action in the municipal court. Yonker filed a

counterclaim against Liberty and Slovin, and the case was transferred to the court of

common pleas. Liberty and Slovin then sought removal to federal court. Yonker’s

motion to remand from federal court was granted on July 6, 2010. Thereafter, the

parties engaged in discovery including the exchange of interrogatories, request for

admissions, and request for production of documents. On September 8, 2011, Slovin

filed a motion to limit discovery to arbitration issues, which was granted on October 18,

2011.

        {¶28} Unlike Rowe, this case does not present a situation in which class

certification was addressed or motions for summary judgment were filed; however, the

parties did engage in the discovery process. Both Liberty and Slovin made what appear

to be attempts at forum shopping. Neither Liberty nor Slovin asserted arbitration as an

affirmative defense until after the case had been removed to, and then remanded from,

federal court. Under these circumstances, any right to arbitrate was waived. We find

the trial court abused its discretion in granting the motion to compel arbitration, as both

Liberty and Slovin acted inconsistently with the right to arbitrate.

        {¶29} Yonker’s first and seventh assignments of error are with merit.

        {¶30} On appeal, Yonker also claims that even if the assignment to Liberty was

proven, Liberty is foreclosed from arbitration based upon the plain terms of the

arbitration agreement and the multi-district class action filed in the U.S. District Court for




                                             10
the Southern District of New York in Ross v. Bank of America, N.A., No. 05 CV 7116

(S.D.N.Y. July 22, 2010). Yonker maintains that based upon the disposition in Ross,

Capital One did not possess any right to claim arbitration under the Agreement, and

therefore, neither Liberty nor Yonker could claim a right to arbitration as the alleged

assignor of the claimed right. We decline to address the merits of these arguments on

appeal: neither Liberty nor Slovin have yet established standing to assert a claim

against Yonker, and even if standing is established, we find merit in Yonker’s argument

that both Liberty and Slovin waived the right to arbitrate.

       {¶31} Based on the disposition of the first, second, and seventh assignments of

error, we decline to address Yonker’s third, fourth, fifth, and sixth assignments of error.

For the foregoing reasons, the judgment of the Portage County Court of Common Pleas

is reversed and remanded for proceedings consistent with this opinion.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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