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Tpi Asset Management, L.L.C v. Eugene S. Baxter

October 25, 2011

TPI ASSET MANAGEMENT, L.L.C.,: PLAINTIFF-APPELLEE,
v.
EUGENE S. BAXTER, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Case No. 10 AC11-0713

The opinion of the court was delivered by: Delaney, J.

Cite as TPI Asset Mgt., L.L.C. v. Baxter,

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

OPINION

JUDGMENT: AFFIRMED

{¶1} Defendant-Appellant Eugene S. Baxter appeals the April 6, 2011 decision of the Knox County Court of Common Pleas granting summary judgment in favor of Plaintiff-Appellee TPI Asset Management, LLC., in this credit card collection action.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant obtained a credit card account from Citibank South Dakota N.A. on or about June 15, 1993. Appellant allegedly made his last payment on the account on March 4, 2005, leaving a remaining balance on the account in the amount of $5,610.25. Citibank assigned the account to Unifund CCR Partners, which assigned the account to Appellee.

{¶3} Appellee originally filed its complaint for collection of the credit card debt against Appellant on October 8, 2009. The case proceeded through discovery and on June 29, 2010, Appellee filed a motion for summary judgment. The motion for summary judgment was filed in contravention of the Knox County Court of Common Pleas Local Rules, so Appellee dismissed its complaint without prejudice on August 31, 2010. At that time, the case had been set for trial on September 2, 2010.

{¶4} On November 15, 2010, Appellee re-filed its complaint. Appellee alleged breach of contract, account, and unjust enrichment, demanding $5,610.25, plus costs and accrued interest and charges of $10,563.07 through July 31, 2009, plus costs and interest at the rate of 31.74% per annum. Appellee served Appellant with discovery on January 18, 2011. Appellant answered the complaint and responded to Appellee's discovery requests.

{¶5} Appellee re-filed its motion for summary judgment on January 27, 2011. Appellant filed a response to Appellant's motion for summary judgment pursuant to Civ.R. 56(F), requesting more time to respond to Appellee's motion to permit Appellant to conduct discovery. Appellant attached an affidavit to its Civ.R. 56(F) motion, stating in pertinent part, Appellant "desired to take the deposition of counsel for plaintiff; take the deposition of the Citi Bank employee that signed the affidavits relied upon by plaintiff; and submit written interrogatories. [Counsel for Appellant] has not had the opportunity to do so due to his efforts in responding to plaintiff's pleadings, and the heavy workload of the office." Appellee responded to Appellant's motion arguing that Appellant had ample time to conduct discovery due to this case being a re-filing.

{¶6} The trial court did not rule on Appellant's request for continuance of the summary judgment proceedings pursuant to Civ.R. 56(F). Rather, the trial court granted Appellee's motion for summary judgment on April 6, 2011. The trial court found there was no genuine issue of material fact that Appellant owed Appellee $5,610.25, plus accrued interest and charges of $10,563.07 through July 31, 2009, plus interest at the rate of 28.24% per annum thereafter, plus costs.

{¶7} It is from this decision Appellant now appeals. ASSIGNMENTS OF ERROR

{¶8} Appellant raises three Assignments of Error:

{¶9} "I. A TRIAL COURT ABUSES ITS DISCRETION WHERE, AS HERE, IT GRANTS A MOTION FOR SUMMARY JUDGMENT WHEN THE CASE HAS BEEN PENDING FOR A TOTAL OF SEVENTY-ONE (71) DAYS AT THE TIME THE MOTION IN FILED; NO DISCOVERY CUTOFF HAS BEEN SET; NO PRE-TRIAL OR TRIAL DATES HAVE BEEN SET; A MOTION IS FILED PURSUANT TO CIV.R. 56(F) OF THE OHIO RULES OF CIVIL PROCEDURE AND SUPPORTED BY AN AFFIDAVIT OF COUNSEL STATING THAT THE MOTION FOR SUMMARY JUDGMENT IS PREMATURE AND ADDITIONAL TIME IS REQUIRED TO OBTAIN DISCOVERY; AND NO FURTHER OPPORTUNITY TO RESPOND TO THE MOTION FOR SUMMARY JUDGMENT IS PROVIDED.

{¶10} "II. A TRIAL COURT COMMITS ERROR AS A MATTER OF LAW WHERE, AS HERE, IT GRANTS A MOTION FOR SUMMARY JUDGMENT ON AN ASSIGNED CREDIT CARD ACCOUNT, AND THE ACCOUNT SUED UPON DOES NOT BEGIN WITH A ZERO BALANCE.

{ΒΆ11} "III. A TRIAL COURT COMMITS ERROR AS A MATTER OF LAW WHERE, AS HERE, IT GRANTS A MOTION FOR SUMMARY JUDGMENT ON AN ASSIGNED CREDIT CARD ACCOUNT, AND THE RECORDS RELIED UPON TO PROVE THE CASE ARE FROM THE ORIGINAL CREDITOR; AND THE AFFIDAVIT SUPPORTING THE RECORDS IS FROM AN INTERMEDIATE ASSIGNEE OF THE ACCOUNT; AND ...


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