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Merchants Acceptance, Inc. v. Jessica Bucholz

October 28, 2011

MERCHANTS ACCEPTANCE, INC.
PLAINTIFF-APPELLANT
v.
JESSICA BUCHOLZ, ET AL.
DEFENDANTS-APPELLEES



(Civil appeal from Municipal Court) T.C. NO. 06CVF363

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

Cite as Merchants Acceptance, Inc. v. Bucholz,

OPINION

{¶1} This matter is before the Court on the Notice of Appeal of Merchants Acceptance, Inc., ("Merchants"), filed January 10, 2011. On April 5, 2006, Merchants filed a Complaint against Jessica Bucholz and Melissa Wallace, alleging that it is the holder of a promissory note executed by Bucholz and Wallace, and that $1,436.11 is due and owing on the note, plus interest. Attached to the Complaint is a "Membership Agreement," dated January 27, 2005, identifying Wallace and Bucholz as buyers, and World Gym Fitness Center as seller. The Agreement provides in part, "The seller may at its own discretion assign this contract to a financial institution." The Agreement contains a section entitled "Promissory Note" that provides that Wallace and Bucholz will make 36 consecutive monthly payments of $55.39 a month for 36 months to satisfy a total balance due of $1993.32. The section further provides that Bucholz and Wallace financed $1500.00 at an annual percentage rate of 19.50 percent, that the finance charge is $493.32, and the amount of tax is $125.00. The bottom of the second page of the Agreement provides:

"Sell Assignment 2-1 2005 Signed World Gym For Value Received Pay to the Order of By Mike Mobley Without Recourse Merchants Acceptance, Inc. Owner, Officer or Firm Member"

{¶2} Bucholz and Wallace did not file an answer to the complaint.

{¶3} On June 27, 2006, Merchants filed a motion for default judgment, to which Bucholz and Wallace did not respond, and which the trial court granted on July 3, 2006. On October 7, 2010, Merchants filed a demand addressed to Wallace entitled "Notice of Court Proceeding to Collect Debt.," which states that Wallace owes $2,253.40, including interest and court costs pursuant to the judgment obtained on July 3, 2006. On the same date, Merchants filed an "Affidavit & Order & Notice of Garnishment & Answer of Employer," and a "Notice to the Judgment Debtor of Garnishment of Personal Earnings." The notice provides that Wallace may request a hearing to dispute the judgment creditor's right to garnish her personal earnings. The notice further states, "NO OBJECTIONS TO THE JUDGMENT ITSELF WILL BE HEARD OR CONSIDERED AT THE HEARING."

{¶4} On November 12, 2010, Wallace filed a Request for Hearing, disputing Merchants' right to garnish her personal earnings. The Request provides, above Wallace's signature, "I UNDERSTAND THAT NO OBJECTIONS TO THE JUDGMENT ITSELF WILL BE HEARD OR CONSIDERED AT THE HEARING."

{¶5} A garnishment hearing was scheduled for December 2, 2010. On that date, Laura Fannin made an unsworn statement to the judge that she was a member of World Gym, and that the owner of the gym was in prison "because he fraudulently took all these memberships." According to Fannin, she has "a case against him from the Attorney General's Office where they owe money to me because they closed down, they didn't pay their rent on their equipment, nothing, and they knew that they were going to close and they kept taking money from people. * * *." When counsel for Merchants objected to Fannin's remarks, the following exchange occurred:

{¶6} "THE COURT: Well, I understand she's not an attorney and you got an objection but you also got some explanation, what's going on?

{¶7} "MS. WILLIAMS: I mean, I just think the time to object to the underlying judgment would have been done with the pending case.

{¶8} "THE COURT: Yeah, but when it comes out you got stuff from the Attorney

General's Office that says it's fraud and this process, I think that it certainly raises some issues from our point. You're aware of this ...


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