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Liberty Credit Services v. Yonker

Court of Appeals of Ohio, Eleventh District

September 16, 2013

LIBERTY CREDIT SERVICES ASSIGNEE OF OR SUCCESSOR IN INTEREST TO CAPITAL ONE, Plaintiff-Appellee,
v.
CRYSTAL YONKER, Defendant/ Third Party Plaintiff-Appellant,
v.
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, (For Plaintiff-Appellee).

Anand N. Misra, The Misra Law Firm, L.L.C., and Robert S. Belovich, (For Defendant/Third Party Plaintiff-Appellant).

Franklin C. Malemud, James O'Connor, and Holly Marie Wilson, Reminger & Co., L.P.A., (For Third Party Defendants-Appellees).

OPINION

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.

(¶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 ...

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