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Equable Ascent Financial, LLC v. Ybarra

Court of Appeals of Ohio, Ninth District

September 30, 2013

EQUABLE ASCENT FINANCIAL, LLC Appellee
v.
PHILLIP L. YBARRA Appellant

APPEAL FROM JUDGMENT ENTERED IN THE AVON LAKE MUNICIPAL COURT COUNTY OF LORAIN, OHIO CASE No. CVF 1100560

TONY DALAYANIS, Attorney at Law, for Appellant.

MATTHEW G. BURG, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

BELFANCE, Judge.

(¶1} Phillip Ybarra appeals the trial court's award of summary judgment for Equable Ascent Financial. For the reasons set forth below, we affirm in part and reverse in part.

I.

(¶2} Equable Ascent filed a complaint alleging that Mr. Ybarra owed $6632.62 on a credit card account. Mr. Ybarra moved to dismiss the complaint, arguing that Equable Ascent was a collection agency and failed to comply with R.C. 1319.12. The trial court denied the motion, and both parties moved for summary judgment. The trial court denied Mr. Ybarra's motion and awarded summary judgment to Equable Ascent. Mr. Ybarra has appealed, raising two assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ABUSED ITS DISCRETION AND/OR IN ERROR DENIED APPELLANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTED SUMMARY JUDGMENT IN FAVOR [OF] APPELLEE.

(¶3} Mr. Ybarra argues in his first assignment of error that the trial court should not have awarded summary judgment in favor of Equable Ascent because Equable Ascent failed to comply with R.C. 1319.12. He also argues that, because Equable Ascent failed to comply with R.C. 1319.12, the trial court should have granted his motion for summary judgment. We agree in part.

(¶4} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). "We apply the same standard as the trial court, viewing the facts of the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party." Garner v. Robart, 9th Dist. Summit No. 25427, 2011-Ohio-1519, ¶ 8.

(¶5} Pursuant to Civ.R. 56(C), summary judgment is appropriate when:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the ...

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