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Shirley Drake v. Barclays Bank Delaware

October 13, 2011

SHIRLEY DRAKE PLAINTIFF-APPELLANT
v.
BARCLAYS BANK DELAWARE, INC., ET AL. DEFENDANTS-APPELLEES



Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-734663

The opinion of the court was delivered by: Mary J. Boyle, P.J.:

Cite as Drake v. Barclay's Bank Delaware, Inc.,

JOURNAL ENTRY AND OPINION

JUDGMENT:

REVERSED AND REMANDED

BEFORE: Boyle, P.J., Rocco, J., and Keough, J.

{¶1} Plaintiff-appellant, Shirley Drake, appeals from the judgment of the trial court submitting his case to arbitration and staying the proceedings. We find merit to his appeal and reverse and remand.

{¶2} In August 2010, Drake filed a complaint against defendants-appellees, Barclays Bank Delaware, Inc. and Juniper Card Services, alleging fraud, breach of contract, and various consumer violations. According to the complaint, Drake entered into a contract with appellees for credit card services sometime prior to 2009. Drake closed his credit card account in July 2009. In November of that same year, Drake entered into an oral agreement with appellees where he agreed to pay them $100 per month for the months of November, December, and January. Drake claims that he paid appellees as agreed, but asserts that appellees removed an extra $98 from his National City Bank account for the months of December 2009 and January 2010 without his approval for a total of $196, which also resulted in two returned check fees totaling $146.

{¶3} In October 2010, appellees moved to stay the proceedings and to compel arbitration. In February 2011, appellees withdrew their motion to compel arbitration, and moved "only for an order staying the proceedings in accordance with [R.C.] 2711.02," which the trial court granted. It is from this judgment that Drake appeals, raising two assignments of error for our review:

{¶4} "[1.] The trial court erred in granting the defendant[-]appellee's motion to compel arbitration because the arbitration clause as found in the contract prepared by the defendant-appellee is both substantively and procedurally unconscionable.

{¶5} "[2.] The trial court erred in granting the defendant-appellee's motion to compel arbitration thereby halting further legal proceedings and enforcing the arbitration provision contained in an adhesion contract for a credit card without a hearing."

Hearing Requirement

{¶6} We will address Drake's second assignment of error first. In doing so, we conclude that there is no merit to his argument that a hearing was required. Because appellees only moved to stay the proceedings pursuant to R.C. 2711.02, the trial court was not required to hold a hearing. Maestle v. Best Buy Co., 100 Ohio St.3d 330, 2003-Ohio-6465, 800 N.E.2d 7, syllabus; Castron v. Higginbotham, 8th Dist. No. 88559, 2007-Ohio-3260, ΒΆ9. Although R.C. 2711.03 contains a requirement for a hearing when a party files a motion to compel arbitration, appellees withdrew that portion of their motion and only sought to stay the proceedings ...


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