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Asset Acceptance v. Proctor 2004 OH appeal re. documentation of alleged balance owed

This is your typical debt buyer lawsuit for over twice the amount owed when the account was charged off.  Local court granted summary judgment for Asset, relying on the infamous affidavit to establish the amount owed despite Proctor’s denial.

The OH appeals remanded.  From the unpublished opinion Asset Acceptance Corp. v. Proctor:

{¶3} Asset filed a complaint in the municipal court alleging that Proctor owed it $3,540.92, plus another $3,901.55 in accrued interest through September 30, 2002, and interest thereafter at the rate of 10% per annum on the principal balance. The complaint included a copy of a Customer Account Statement and an affidavit of Charles Hilson, Branch Manager, showing the amount due. Proctor filed a general denial and raised the following affirmative defenses: the claim is barred by the applicable statute of limitations, laches, and accord and satisfaction.

{¶4} Asset sent Proctor interrogatories, requests for admissions and requests for production of documents. Proctor answered the requests.

{¶5} Asset filed a motion for summary judgment. It referenced Proctor’s admissions where Proctor admitted (1) signing the credit card application, (2) using the card to purchase items, (3) failing to make all payments timely, and (4) failing to pay the total amount due. In addition, Asset filed the affidavit of Steve Robertson, Assistant Branch Manager, to verify Proctor’s indebtedness. However, just like the complaint, the affidavit of Charles Hilson, and the Customer Account Statement, Robertson’s affidavit only stated the total principal and total accrued interest through September 30, 2002. It did not state how Asset arrived at these numbers. Based on these admissions and the affidavit, Asset argued that the trial court should grant its motion for summary judgment.

{¶6} Proctor filed a memorandum opposing the motion for summary judgment. Proctor argued that the trial court should deny the motion because he did not owe the amount that Asset said he owed. Proctor filed an affidavit and averred: “1. That an accounting was never shown to me as to the basis of the alleged debt, time of the alleged debt, and/or the amount of the alleged debt. 2. That I was previously told by a representative of Plaintiff that the account was closed and written off. 3. That no information showing the balance, payments, credits, etc., has been provided. 4. That there is no basis for me to believe that any of the alleged debt was charged by me.”

{¶7} The trial court granted Asset’s motion for summary judgment.

{¶8} Proctor appeals and asserts one assignment of error: “The trial court erred in granting the motion for summary judgment in that there was not sufficient proof by the appellee of its damages.”
II.
{¶9} Proctor argues in his sole assignment of error that the trial court erred because there is a genuine issue of material fact. He contends that the total amount that Asset alleges he owes is in dispute. Our standard of review is de novo.

Of course he SHOULD have objected to the Asset evidence in LOCAL court.

{¶12} Because an action on an account is founded upon contract, the plaintiff must prove the necessary elements of a contract action, and, in addition must prove that the contract involves a transaction that usually forms the subject of a book account. Gabriele v. Reagan (1988), 57 Ohio App.3d 84, 87. In order to adequately plead and prove an account, “[a]n account must show the name of the party charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due.” Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 126.

{¶13} Here, Asset moved for summary judgment alleging that the total damages were not in dispute. Asset supported its motion by pointing to certain admissions Proctor had made and by an affidavit only showing the total amount due on the account. Asset failed to provide documentation of the charges, debits, or credits that would permit Proctor, the trial court, or this court to calculate the balance claimed to be due. Proctor responded by pointing out that in his admissions he denied that he owed what Asset claimed and by his affidavit where he disputed the total amount owed on his account. Hence, we find that this dispute over the total amount of damages owed is a genuine issue of material fact.

Gengo v. Target Nat. Bank (a case relating to the fact that the banks CREATE the money) provides some insight in the creditors’ obligations to investigate FCBA disputes and it is very important that consumers submit disputes.  While the FCBA requires disputes within 60 days from the statement with disputed data, in Genko the court wrote:

Defendant argues that Plaintiff’s first notice is untimely under Regulation Z because Defendant did not receive the notice 60 days after it transmitted the first periodic statement that reflects the alleged billing errors, but rather it received Plaintiff’s notice within 60 days following the date of the statement being disputed by Plaintiff. (Instrument No. 24, at 6-7). Defendant’s argument focuses on the following specific language used in Plaintiff’s notice, “because I believe I should not have been charged finance charges or fees for the history of the account, I dispute the accuracy of the following items on my statements ...” (Id. at 8) (emphasis added). Secondly, Defendant argues that Plaintiff’s notices do not involve billing errors as defined by the FCBA because finance charges are merely incidents to the extension of credit, but not themselves extensions of credit. (Id. at 10). Defendant goes on to argue that simply because Plaintiff has dubbed something a billing error does not necessarily make it a billing error under the Act. Moreover, Defendant attempts to make what the Court has determined to be a trivial distinction with respect to when a creditor’s duties are triggered by an obligor who makes a mistake of fact about an alleged billing error and an obligor who makes a mistake of law about a billing error. (Id. at 11-12). Further, it is Defendant’s interpretation that the statutory requirements for Plaintiff to assert a billing error properly impose upon Plaintiff a duty to indicate her belief that the statement contains a billing error as the statute defines a billing error. (Instrument No. 23, at 7-10).  ...

Of course it’s more difficult to prevail against original creditors, but debt buyers generally don’t have ADMISSIBLE evidence.

I really don’t understand why these debt buyers dare to sue at all.  I was actually looking for more cases against the debt buyers’ attorneys such as FARID M. SAYYED, Plaintiff-Appellant, v. WOLPOFF & ABRAMSON, Defendant-Appellee, but since Asset and other collectors are filing countless suits, I thought I’d post the OH opinion.