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Kemba Financial C.U. v. Griffin

Court of Appeals of Ohio, Fifth District

October 1, 2007

KEMBA FINANCIAL C.U. Plaintiff-Appellee
v.
ROBERT J. GRIFFIN Defendant-Appellant

Appeal from the Licking County Municipal Court, Civil Case No. 06CVF01128

MR. DAVID MARTIN For Plaintiff-Appellee

MR. STEPHEN A. SANTANGELO For Defendant-Appellee

Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.

OPINION

Hoffman, Judge.

{¶1} Defendant-appellant Robert J. Griffin appeals the March 28, 2007 Judgment Entry of the Licking County Municipal Court granting summary judgment in favor of Plaintiff-appellee Kemba Financial Credit Union.

STATEMENT OF THE FACTS AND CASE

{¶2} On October 2, 1992, Appellant executed a Loanliner Note and Disclosure Statement (hereinafter "Note"), held by Kemba Financial C.U. (hereinafter "Kemba"). Appellant's 1992 Hyundai Elentra served as security on the note.

{¶3} Appellant defaulted on the note by failing to make the required payments. As a result, Appellee exercised its right to repossess the vehicle and accelerate the balance due and owing.

{¶4} Appellant requested Kemba transfer him the vehicle's title, in order for his father-in-law to sell the vehicle along with four other cars. Appellant told Kemba, even if the vehicle was sold at a loss, his father-in-law would give the money received from the sale of all the vehicles to Appellant to pay the money due and owing to Kemba. Kemba declined the offer, stating the father-in-law, a third party, was not legally bound to pay, nor was there any guarantee the third party would pay the debt owed to Kemba. Appellant then suggested Kemba send a title clerk to the dealership with the title in order to collect the money from the sale. Kemba declined citing the contract between the parties specifically illustrating the procedure in the event of default.

{¶5} Appellant turned the vehicle over to Kemba.

{¶6} On September 20, 1994, Kemba sent a letter to Appellant detailing the public sale of the vehicle. On October 12, 2004, Kemba sent Appellant a deficiency balance letter. The vehicle was sold at public sale for the total amount of $3, 800.00.

{¶7} On May 2, 2006, Kemba filed a complaint in the Licking County Municipal Court seeking the principal sum of $6, 973.00, plus interest accrued in the additional amount of $7, 195.06 through April 6, 2006, plus interest thereafter at a rate of 8.990% per annum and costs.

{¶8} On November 13, 2006, Kemba filed a motion for summary judgment. Appellant responded to the motion claiming Kemba failed to mitigate its damages. Kemba filed a supplemental motion for summary judgment, to which Appellant filed a memorandum contra. Via Judgment Entry of March 28, 2007, the trial court ...


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