[Cite as Midland Funding L.L.C. v. Mays, 2016-Ohio-327.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Midland Funding LLC, doing business Court of Appeals No. L-14-1154
in Ohio as Midland Funding DE LLC
Trial Court No. CVF-12-16161
Appellee
v.
Rene Mays DECISION AND JUDGMENT
Appellant Decided: January 29, 2016
*****
Rene Mays, pro se.
*****
OSOWIK, J.
{¶ 1} This is an accelerated pro se appeal from a judgment of the Toledo
Municipal Court denying appellant Rene Mays’ motion for relief from judgment in this
action brought to recover funds due and owing appellee Midland Funding LLC, doing
business in Ohio as Midland Funding DE LLC. For the following reasons, the judgment
of the trial court is affirmed.
{¶ 2} On September 5, 2012, appellee filed a complaint alleging that appellant
owed $5,323.45, plus interest, for repayment of a credit card account appellee purchased
from Chase Bank USA, N.A. Appellee claimed it had made a demand on appellant for
repayment of the account but that appellant had failed to pay the balance due.
{¶ 3} Appellant filed an answer pro se, denying the allegations and asserting
numerous defenses. On December 19, 2012, appellant filed a pro se motion for summary
judgment and/or motion to dismiss, arguing that appellee had failed to attach a proper
account to the complaint pursuant to Civ.R. 10(D). On January 9, 2013, appellee filed a
memorandum in opposition to appellant’s motion, asserting that it had in fact alleged an
amount due and provided the charge-off statement that set forth appellant’s name, the
original creditor information and the balance due, and stating that the foregoing
information was more than sufficient for appellant to answer the complaint. Appellee
added that appellant, in support of her motion, had not stated any legitimate dispute as to
the nature of the debt, the amount alleged to be outstanding or her right of action on the
debt.
{¶ 4} On April 18, 2013, appellee filed a motion for summary judgment, asserting
that the material facts in this case were undisputed: that appellant utilized the credit card
and left an outstanding balance on the account. Appellee also asserted that it was entitled
to judgment as a matter of law based on those facts and that appellant had not produced
any evidence to demonstrate that the account was paid in full. Appellant filed a
memorandum contra on May 6, 2013. On May 20, 2013, the trial court granted
2.
appellee’s motion for summary judgment. On June 18, 2013, appellant filed a motion to
vacate that judgment entry. The trial court’s journal indicates that neither party appeared
at a hearing on June 28, 2013, and that the trial court ordered summary judgment to
stand. On December 9, 2013, appellant filed a motion for relief from judgment. On
April 28, 2014, appellant filed an affidavit in support of her motion for relief from
judgment, instanter. The trial court denied appellant’s motion for relief from judgment
on June 16, 2014.
{¶ 5} Appellant sets forth the following sole assignment of error:
Assignment of Error No. 1: The trial court abused its discretion in
denying inter alia Appellant’s Rule 60(B) July 8, 2013 motion to vacate
entry of May 20, 2013, and Appellant’s Rule 60(B) December 9, 2013
motion to vacate entry of July 16, 2013 under the facts and circumstances
of this case. See Orders of 07/16/2013 and 06/16/2014.
{¶ 6} In order to prevail on a Civ.R. 60(B) motion for relief from judgment, a
movant must demonstrate that: (1) the party has a meritorious defense or claim to present
if relief is granted; (2) the party is entitled to relief under one of the grounds stated in
Civ.R. 60(B)(1)-(5); and the motion is made within a reasonable time. GTE Automatic
Elec. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976). If any of the
three requirements are not met, the motion should be overruled. Rose Chevrolet, Inc. v.
Adams, 36 Ohio St.3d 17, 520 N.E.2d 564 (1988).
3.
{¶ 7} An appeal from a denial of a Civ.R. 60(B) motion is reviewed pursuant to an
abuse of discretion standard. Fifth Third Mtge. Co. v. Whittington, 6th Dist. Lucas No. L-
13-1010, 2013-Ohio-2815, ¶ 7-8. An abuse of discretion constitutes more than an error
of law or judgment; it implies an attitude that is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
{¶ 8} The record herein reflects that appellee demonstrated it purchased
defendant’s debt from Chase Bank USA, N.A. on April 26, 2012. Appellee provided the
trial court with the original creditor’s information and balance due, the charge-off
statement, the bill of sale, and the September 25, 2012 affidavit of Serena Slatinsky,
appellee’s legal specialist, affirming that appellee was the current owner of the account
with a balance owed of $5,373.76 as of August 8, 2012.
{¶ 9} The material facts set forth above are undisputed. The record reflects that
appellant utilized the account and left an outstanding balance. Appellant is obligated to
pay the amount due on the account and has not produced any evidence to demonstrate
that the account was paid in full. Therefore, appellant did not demonstrate she had a
meritorious defense or claim to present if relief were granted.
{¶ 10} Accordingly, we find that the trial court correctly denied appellant’s motion
and appellant’s sole assignment of error is not well-taken.
4.
{¶ 11} On consideration whereof, the judgment of the Toledo Municipal Court is
affirmed. Costs of this appeal are assessed to appellant pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
5.