Midland Funding, L.L.C. v. Schwarzmer

[Cite as Midland Funding, L.L.C. v. Schwarzmer, 2022-Ohio-4506.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

MIDLAND FUNDING LLC, :

Plaintiff-Appellant, :
No. 111357
v. :

MENDY SCHWARZMER, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 15, 2022

Civil Appeal from Cleveland Municipal Court
Case No. 2020-CVF-006312

Appearances:

Dinsmore & Shohl, LLP, and H. Toby Schisler, for
appellant, Midland Credit Management, Inc.

Frederick & Berler LLC, Ronald I. Frederick, and Michael
L. Berler; DePledge Law Office, Inc., and Laura A.
DePledge, for appellee.

MARY J. BOYLE, J.:

Defendant-appellant, Midland Funding, LLC (“Midland Funding”),

and third-party-defendant-appellant, Midland Credit Management, Inc. (“MCM”)

(jointly, “Midland”), appeal the municipal court’s decision denying Midland’s
motion to compel arbitration based on a credit cardholder agreement originally

entered between plaintiff-appellee, Mendy Schwarzmer (“Schwarzmer”), and

Citibank. For the following reasons, we affirm the municipal court’s judgment.

I. Facts and Procedural History

In June 2016, Schwarzmer opened a Sears credit card account

through Citibank and received monthly billing statements at his residence. The

following year, Schwarzmer stopped making payments, and Citibank closed the

account and charged off an outstanding balance of $1,039.82. In June 2018,

Citibank notified Schwarzmer that it had assigned the account to Midland Funding.

Two years later, on July 20, 2020, Midland Funding initiated a

collection action in the Cleveland Municipal Court. On September 18, 2020,

Schwarzmer filed an answer and counterclaim, alleging that he is a resident of

University Heights, Ohio, not Cleveland, Ohio, and asserting that Midland Funding

violated the Fair Debt Collection Practices Act (“FDCPA”) and the Ohio Consumer

Sales Practices Act (“CSPA”) by initiating its collection action in the Cleveland

Municipal Court.

On October 7, 2020, Midland filed a motion for default judgment,

which Schwarzmer opposed and the municipal court later denied as moot because

Schwarzmer had answered Midland’s complaint. On October 23, 2020,

Schwarzmer filed a notice that he had propounded discovery on Midland Funding.

The following month, on November 13, 2020, Midland Funding filed an answer to

Schwarzmer’s counterclaim but did not assert that an arbitration agreement
governed the dispute. On January 4, 2021, Schwarzmer filed an amended

counterclaim and third-party complaint against MCM. In the amended

counterclaim and third-party complaint, Schwarzmer again asserted violations of

the FDCPA and CSPA, but as putative class action claims against the Midland

parties, alleging that Midland regularly initiates collection actions and seeks default

judgments in the Cleveland Municipal Court against consumers who do not reside

within the jurisdiction of the court. On February 8, 2021, Midland filed an answer

to Schwarzmer’s amended counterclaim, raising an arbitration agreement and its

class action waiver provision among its affirmative defenses.

On April 21, 2021, Midland filed a motion to compel arbitration of the

amended counterclaim or, in the alternative, to strike the amended counterclaim’s

class allegations. Midland attached to its motion a copy of a cardholder agreement

between Schwarzmer and Citibank. Included within the agreement is an arbitration

provision that states:

ARBITRATION

PLEASE READ THIS PROVISION OF THE AGREEMENT
CAREFULLY.

THIS SECTION PROVIDES THAT DISPUTES MAY BE
RESOLVED BY BINDING ARBITRATION. ARBITRATION
REPLACES THE RIGHT TO GO TO COURT, HAVE A JURY
TRIAL OR INITIATE OR PARTICIPATE IN A CLASS ACTION.
IN ARBITRATION, DISPUTES ARE RESOLVED BY AN
ARBITRATOR, NOT A JUDGE OR JURY. ARBITRATION
PROCEDURES ARE SIMPLER AND MORE LIMTED THAN
IN COURT. THIS ARBITRATION PROVISION IS
GOVERNED BY THE FEDERAL ARBITRATION ACT (FAA),
AND SHALL BE INTERPRETED IN THE BROADEST WAY
THE LAW WILL ALOW.

Covered claims

• You or we may arbitrate any claim, dispute or controversy
between you and us arising out of or related to your account, a
previous related account or our relationship (called “Claims”).
• If arbitration is chosen by any party, neither you nor we
will have the right to litigate that Claim in court or have
a jury trial on that Claim.

Except as stated below, all Claims are subject to arbitration, no matter
what legal theory they’re based on or what remedy (damages, or
injunctive or declaratory relief) they seek, including Claims based on
contract, tort (including intentional tort), fraud, agency, your or our
negligence, statutory or regulatory provisions, or any other sources of
law; Claims made as counterclaims, cross-claims, third-party claims,
interpleaders or otherwise; Claims regarding past, present, or future
conduct; and Claims made independently or with other claims. This
also includes Claims made by or against anyone connected with us or
you or claiming through us or you, such as a co-applicant, authorized
user, employee, agent, representative or an
affiliated/parent/subsidiary company.

Arbitration limits

• Individual Claims filed in small claims court are not subject to
arbitration, as long as the matter stays in small claims court.
• We won’t initiate arbitration to collect a debt from you unless
you choose to arbitrate or assert a Claim against us. If you assert
a Claim against us, we can choose to arbitrate, including actions
to collect a debt from you. You may arbitrate on an individual
basis Claims brought against you, including Claims to collect a
debt.
• Claims brought as part of a class action, private attorney general
or other representative action can be arbitrated only on an
individual basis. The arbitrator has no authority to arbitrate any
claim on a class or representative basis and may award relief only
on an individual basis. If arbitration is chosen by any party,
neither you nor we may pursue a Claim as part of a class action
or other representative action. Claims of 2 or more persons may
not be combined in the same arbitration. However, applicants,
 co-applicants, authorized users on a single account and/or
related accounts, or corporate affiliates are here considered as
one person.

(Emphasis sic.)

Midland also attached to its motion an affidavit of William Peck,

Document Control Officer for Citibank, attesting that the card agreement that

included the arbitration provision was mailed to Schwarzmer when he opened the

account; the arbitration provision had not changed during the time Schwarzmer’s

account was active; Citibank maintains a record of all cardholders’ addresses and

makes a note on an account when a mailing is returned as undelivered; and

Schwarzmer’s account did not contain a notation indicating that any mailing was

returned as undelivered. Peck further attested in his affidavit that Citibank charged

off Schwarzmer’s account in March 2018, and in June 2018, sold “all rights, title and

interest in the [a]ccount” to Midland Funding as provided by the Bill of Sale and

Assignment attached to Midland’s motion. The Bill of Sale and Assignment provides

that Citibank “does hereby transfer, sell, assign, convey, grant, bargain, set over and

deliver to Buyer [Midland Funding], and to Buyer’s successors and assigns, the

Accounts summarized on the Asset Schedule attached hereto.” Schwarzmer’s

account reflecting an outstanding balance of $1,039.82 was among the charged-off

accounts listed in the asset schedule. Midland also attached to its motion an

affidavit of Adam Swaninger, Manager of Operations for MCM, attesting that MCM

manages the debt purchased by Midland Funding and that a review of MCM’s
records reflects that Schwarzmer’s account was among those that Midland Funding

purchased from Citibank in June 2018.

On May 19, 2021, the Cleveland Municipal Court issued a judgment

entry determining that it was the improper venue to hear Midland Funding’s

complaint and transferred the matter to the Shaker Heights Municipal Court. On

May 26, 2021, the parties filed a stipulated motion to stay briefing on Midland’s

motion to compel arbitration pending transfer of the case. On July 28, 2021, the

Cleveland Municipal Court dismissed the case for Midland Funding’s failure to

pursue the collection action in the Shaker Heights Municipal Court. On August 25,

2021, Schwarzmer filed a motion for relief from judgment, which the Cleveland

Municipal Court granted the following month, limiting dismissal to Midland

Funding’s complaint and preserving Schwarzmer’s amended counterclaim.

On December 29, 2021, Schwarzmer filed a brief opposing Midland’s

motion to compel arbitration, arguing (1) Midland was not a party to the card

agreement between Schwarzmer and Citibank; (2) Midland produced no evidence

that Schwarzmer assented to the arbitration provision contained within the card

agreement; (3) Schwarzmer’s counterclaim is not a claim covered by the card

agreement’s arbitration provision; (4) any disputes arising from the card agreement

are governed by South Dakota law, which provides that assignees must be

specifically identified in a contract to enforce contract rights such as a right to

arbitration; and (5) Midland waived any purported right to arbitration by initiating

the collection action against Schwarzmer.
 On January 10, 2022, the Cleveland Municipal Court lifted the stay

on the parties’ briefing on Midland’s motion to compel arbitration and on February

28, 2022, denied Midland’s motion. The court found that while Schwarzmer did not

deny opening the credit card account and using the card to make purchases,

Midland failed to produce evidence of having mailed the card agreement to

Schwarzmer or a signed and dated copy of the card agreement showing that

Schwarzmer had assented to its terms. The court also found that under South

Dakota law, which governed the agreement between Schwarzmer and Citibank, an

assignee such as Midland could not enforce the card agreement’s arbitration

provision unless Midland was explicitly identified in the agreement. Finally, the

court found that Midland waived any right to arbitration by electing to file the

collection action in municipal court rather than in arbitration.

Midland now appeals this judgment, raising two assignments of error

for review:

Assignment of Error I: The trial court erred by failing to enforce the
terms of the arbitration agreement.

Assignment of Error II: The trial court erred by not enforcing the class
action waiver provision in the agreement.

II. Law and Analysis

In its first assignment of error, Midland first argues that the

municipal court erred by denying its April 21, 2021 motion to compel arbitration of

Schwarzmer’s amended counterclaim. Midland maintains that it produced

unrefuted evidence that it mailed the credit card agreement to Schwarzmer when he
opened the credit card account with Citibank and that Schwarzmer agreed to the

terms of the card agreement, including its arbitration provision, when he continued

to use the card to make purchases. Midland also maintains that the municipal court

improperly held that as Citibank’s assignee, Midland could not enforce the

arbitration provision in the card agreement. Lastly, Midland maintains that it did

not waive its right to arbitration by initiating a collection action against Schwarzmer

in the municipal court rather than pursuing the claim in arbitration because the card

agreement precludes it from initiating debt collection in arbitration. We review the

last of Midland’s arguments first because it is dispositive.

Schwarzmer argued successfully in the municipal court that Midland

waived any asserted right to arbitrate when it initiated the collection action against

him in municipal court rather than seeking to collect the debt in arbitration.

Midland counters that the language of the arbitration provision requires that it file

an action to collect a debt in small claims court. We therefore review the language

of the arbitration agreement to determine whether Midland waived the right to

arbitrate by filing a collection action against Schwarzmer in municipal court.

Whether a dispute is arbitrable is a question for the court to

determine by examination of the parties’ contract. Smith, 2021-Ohio-3344, ¶ 9.

“The intent of the parties is determined from the language used in their contract.”

Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884

N.E.2d 12, ¶ 40.
 Here, the arbitration provision states that “[i]ndividual claims filed in

small claims court are not subject to arbitration” and “[w]e won’t initiate arbitration

to collect a debt from you[.]” Consistent with the terms of the arbitration provision,

Midland filed an individual collection action against Schwarzmer in the Cleveland

Municipal Court. Therefore, Midland did not waive any asserted right to arbitrate

by initiating the action in municipal court.

Schwarzmer next argues that Midland waived its right to arbitrate by

answering his initial counterclaim and participating in discovery without requesting

a stay of proceedings or moving to compel arbitration. Midland responds that the

municipal court never found that Midland acted inconsistently with its right to

arbitrate; that Schwarzmer changed the nature of the dispute by amending his

individual counterclaim to a putative class action and adding MCM as a new party;

and that Midland raised the arbitration provision in its answer to Schwarzmer’s

amended counterclaim and filed a motion to compel arbitration shortly thereafter.

Because waiver is a fact-based issue, an appellate court reviews a trial

court’s decision about whether a party waived its right to arbitrate for an abuse of

discretion. Ohio Bell Tel. Co. v. Cent. Transport, Inc., 8th Dist. Cuyahoga No.

96472, 2011-Ohio-6161, ¶ 17. “Abuse of discretion” is

“commonly employed to justify an interference by a higher court with
the exercise of discretionary power by a lower court, [and] implies not
merely error of judgment, but perversity of will, passion, prejudice,
partiality, or moral delinquency. The exercise of an honest judgment,
however erroneous it may appear to be, is not an abuse of discretion.”
(Emphasis sic.) Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187

N.E.3d 463 at ¶ 35, quoting Black’s Law Dictionary 11 (2d Ed.1910).

“The trial court is in the best position to determine whether a party

has waived its right to arbitrate.” Debois, Inc. v. Guy, 2020-Ohio-4989, 161 N.E.3d

99, ¶ 22 (8th Dist.), citing Phillips v. Lee Homes, Inc., 8th Dist. Cuyahoga No. 64353,

1994 Ohio App. LEXIS 596, 10-11 (Feb. 17, 1994). “Accordingly, when applying the

abuse of discretion standard, an appellate court may not substitute its own judgment

for that of the trial court.” Id., citing Black v. Hicks, 8th Dist. Cuyahoga No. 108958,

2020-Ohio-3976, ¶ 96. “Thus, if the record demonstrates a reasonable basis for the

trial court's decision, we must affirm.” Id., citing MRK Technologies, Ltd. v.

Accelerated Sys. Integration, Inc., 8th Dist. Cuyahoga No. 84747, 2005-Ohio-30, ¶

11.

The right to arbitration may be waived like any other contractual

right. Blue Technologies Smart Solutions, L.L.C. v. Ohio Collaborative Learning

Solutions, Inc., 8th Dist. Cuyahoga No. 108535, 2020-Ohio-806, ¶ 13. “To establish

waiver, the party seeking waiver must demonstrate (1) that the party knew of its

right to assert an argument or defense and (2) that the totality of the circumstances

establish that the party acted inconsistently with that right.” Gembarski v.

PartsSource, Inc., 157 Ohio St.3d 255, 2019-Ohio-3231, 134 N.E.3d 1175, ¶ 25.

A trial court may consider several factors when evaluating the totality

of the circumstances, including (1) whether the party seeking arbitration invoked

the court’s jurisdiction by filing a complaint, (2) whether there was any delay in
requesting a stay of proceedings or an order compelling arbitration, and (3) whether

the party seeking arbitration participated in the litigation, including discovery and

dispositive motions. Blue Technologies at ¶ 19.1

Here, Midland does not dispute that it was aware of the arbitration

provision contained in the card agreement. Indeed, it relies on the language of the

arbitration provision in maintaining that collection actions are excepted from

arbitration and that its conduct was consistent with its right to arbitrate. Therefore,

having established that Midland knew about its asserted right to arbitrate, we next

determine whether Midland acted inconsistently with that right.

The first factor to consider is whether Midland invoked the municipal

court’s jurisdiction by filing a complaint. Blue Technologies at ¶ 19. The municipal

court concluded that Midland waived its right to arbitrate when it elected to file the

collection action in the municipal court instead of in arbitration. Midland contends

that the municipal court never expressly found that Midland acted inconsistently

with that right.

1 We omit a final factor — namely, whether the delay in requesting arbitration
prejudiced the opposing party — based on a recent holding of the United States Supreme
Court in Morgan v. Sundance, Inc., 596 U.S. __ (2022), that the general policy favoring
arbitration does not create any new procedural rules concerning waiver. The Morgan
Court defined waiver as “‘the intentional relinquishment or abandonment of a known
right’” and reasoned that when deciding “whether a waiver ha[s] occurred, [a] court
focuses on the actions of the person who held the right” and “seldom considers the effects
of those actions on the opposing party.” Id., quoting United States v. Olano, 507 U.S. 725,
733 (1993). The Ohio Supreme Court’s analysis of waiver has been consistent with this
holding. See, e.g., Gembarski at ¶ 24-25 (waiver occurs when a party acts inconsistently
with a known right).
 In its judgment entry denying Midland’s motion to compel

arbitration, the municipal court made the following relevant findings concerning the

case’s procedural history:

On July 20, 2020, Midland filed its Complaint, seeking a money
judgment for default on a credit card account.

On September 18, 2020, Schwarzmer filed an initial Answer and
Counterclaim.

On October 7, 2020, Midland moved for default judgment, which was
denied.

On October 23, 2020, Schwarzmer propounded discovery to Midland.

On November 13, Midland replied to the [initial] counterclaim, but did
not claim a right to arbitrate.

On December 18, 2020, Midland answered the discovery request.

On January 4, 2021, Schwarzmer filed a “First Amended Class Action
Counterclaim and New Party/Third Party Complaint.”

On February 8, 2021, Midland replied to the amended counterclaim.
In its reply, Midland raised arbitration as an affirmative defense.

On April 20, 2021, Midland filed a Motion for Arbitration, based upon
the “Arbitration Clause” in the credit “Card Agreement.”

(Judgment Entry, Feb. 28, 2022.) The municipal court then concluded that

“Midland waived its right to arbitration when it chose to file [its collection] lawsuit

as opposed to electing to settle the case through arbitration.” (Judgment Entry, Feb.

28, 2022.)

Contrary to Midland’s contention that the municipal court never

determined that it acted inconsistently with its right to arbitrate, the municipal court

did find that Midland filed a complaint, moved for default judgment, and answered
Schwarzmer’s counterclaim and discovery requests. From this conduct, the

municipal court concluded that Midland had waived its right to arbitrate.

Although Midland points to an exception in the arbitration provision

that states it will not initiate debt collection in arbitration, the agreement also

provides that if the debtor countersues, Midland may at that point assert its right to

arbitrate. Specifically, the arbitration provision states that “[w]e won’t initiate

arbitration to collect a debt from you unless you choose to arbitrate or assert a Claim

against us. If you assert a Claim against us, we can choose to arbitrate, including

actions to collect a debt from you.” The municipal court found that Schwarzmer

answered Midland’s collection action and filed a counterclaim. Instead of asserting

the right to arbitrate under the terms of the card agreement, Midland answered the

counterclaim and replied to Schwarzmer’s request for discovery. Even if Midland’s

complaint and motion for default judgment do not factor into the analysis, by

answering Schwarzmer’s counterclaim and participating in discovery, Midland

acted inconsistently with its asserted right to arbitrate. See Crosscut Capital, LLC

v. DeWitt, 2021-Ohio-1827, 173 N.E.3d 536, ¶ 18-19 (10th Dist.), citing Murtha v.

Ravines of McNaughton Condominium Assn., 10th Dist. Franklin No. 09AP-709,

2010-Ohio-1325, ¶ 25 (finding that filing an answer and participating in discovery

were inconsistent with the right to arbitrate).

The second factor considers any delay in requesting a stay of

proceedings or an order compelling arbitration. Blue Technologies at ¶ 19. The

municipal court found that Midland initiated the collection action in July 2020,
answered Schwarzmer’s counterclaim in September 2020, and raised the

arbitration provision for the first time in its February 2021 answer to Schwarzmer’s

amended counterclaim.

This court has found that a delay of six months in asserting a right to

arbitrate “has been deemed both sufficient to show waiver, and insufficient to show

waiver, depending on the degree of participation in the litigation during this time

period.” Vining v. Logan Clutch Corp., 8th Dist. Cuyahoga No. 108563, 2020-Ohio-

675, ¶ 14 (citing cases). Again, assuming Schwarzmer’s initial counterclaim was the

triggering event from which Midland could have asserted its right to arbitrate,

Midland did not raise that right until nearly five months later and did not move to

compel arbitration for more than two months thereafter. Before raising its right to

arbitrate, Midland answered the counterclaim and responded to discovery requests.

We cannot conclude that the municipal court abused its discretion in finding waiver

when we consider these circumstances. See Debois, 2020-Ohio-4989, 161 N.E.3d

99, at ¶ 34 (affirming waiver when the party moving to stay proceedings initiated

the litigation, sought default judgment, attended a court conference, and sought two

extensions of time before asserting its right to arbitrate five months later).

The third factor considers the extent of participation in the litigation,

including discovery and dispositive motions. Blue Technologies at ¶ 19. After filing

its collection action, Midland moved for default judgment, answered Schwarzmer’s

initial counterclaim, and responded to Schwarzmer’s request for discovery, only

raising the right to arbitrate after Schwarzmer amended the counterclaim to a
putative class action lawsuit. Midland cannot have it both ways—ignoring its right

to arbitrate when facing an individual counterclaim but asserting that right when

facing a putative class action based on the same causes of action brought by the

counterclaim. Midland acted inconsistently with its right to arbitrate by answering

Schwarzmer’s initial counterclaim and participating in the litigation for seven

months before filing its motion to compel arbitration.

Midland nevertheless maintains that a party cannot be found to have

waived its right to arbitrate unless its conduct is “completely inconsistent” with that

right. Midland relies on Little v. Midland Credit Mgt., S.D.Ohio No. 2:19-cv-5419,

2021 U.S. Dist. LEXIS 73407, at 19 (Feb. 24, 2021), to support its argument. But

Little is distinguishable. MCM, the defendant in that case, first indicated its

intention to arbitrate the matter in its answer to the plaintiff’s complaint, reiterated

that intention in a discovery report it filed with the trial court, and thereafter filed a

motion to compel arbitration, less than two months after its answer. Here, however,

Midland answered the complaint and participated in discovery without asserting its

right to arbitrate.

Midland also maintains that Schwarzmer changed the nature of the

dispute by amending his counterclaim to a putative class action and adding MCM as

a party. However, Midland cites no law supporting its contention that amending the

same causes of action to a putative class action revives a waived right to arbitrate.

Further, Midland’s contention that MCM reserves that right even if Midland

Funding waived it is not well taken. Our review of the documents that Midland
attached to its motion to compel arbitration reveal that in Bill of Sale and

Assignment, Citibank assigned Schwarzmer’s debt to Midland Funding, not MCM,

and Adam Swaninger, MCM Manager of Operations, states in his affidavit that

“Midland Credit manages the debt that Midland Funding purchases.” Accordingly,

MCM is not a party to Citibank’s assignment of Schwarzmer’s debt to Midland

Funding and therefore cannot assert a right to arbitrate under the credit card

agreement that governs the debt. See Smith v. Javitch Block, L.L.C., 8th Dist.

Cuyahoga No. 110154, 2021-Ohio-3344, ¶ 13 (holding that an assignee of a

cardholder agreement stands in the shoes of the creditor and retains all the rights

that the creditor held under the agreement). Alternatively, MCM is an arm or

affiliate of Midland Funding, in which case MCM cannot independently assert a

contract right that Midland Funding already waived.

The dissent would find that Midland Funding acted consistently with

its right to arbitrate based on language in the card agreement stating that neither

party waives the right to arbitrate by participating in the litigation. In Debois, 2020-

Ohio-4989, 161 N.E.3d 99, however, we affirmed under an abuse-of-discretion

standard the trial court’s finding of waiver under similar circumstances and despite

contract language providing that “institution and maintenance of any action for

judicial relief in a court to obtain a monetary judgment * * * shall not constitute a

waiver of the right of any party to compel arbitration[.]” Id. at ¶ 4. We concluded

that such “antiwaiver language * * * is merely one factor a court may consider in

evaluating waiver of the right to arbitrate and can be waived just like any other
contractual provision.” Id. at ¶ 46. Further, in its brief, Midland only cites the

antiwaiver provision in the card agreement that permits it to initiate a collection

action, not maintain the litigation following the filing of a counterclaim. App.R.

12(A)(2); App.R. 16(A)(7). Finally, while we understand the dissent’s concern that

a debtor may wait to amend until after the creditor has waived its right to arbitrate,

we do not share this concern in the instant case. The dissent overlooks that

Schwarzmer’s putative class-action counterclaim arises from an alleged pattern of

practice on the part of this creditor of filing collection actions in the wrong court,

seeking and obtaining default judgment from unsuspecting debtors, and then in this

case attempting to avoid liability by belatedly asserting its right to arbitrate under

the card agreement that it may avail itself of the arbitration clause’s class-action

waiver. Therefore, based on our review of the record before us, we find that the

municipal court had a reasonable basis to conclude that Midland waived its right to

arbitrate and would not substitute our judgment for that of the municipal court.

In addition to its argument that it did not waive is right to arbitrate

Schwarzmer’s counterclaim, Midland raises several other arguments in its first

assignment of error concerning whether the arbitration agreement was received by

Schwarzmer and whether it was enforceable against him. We acknowledge that

Midland attached to its motion to compel arbitration affidavit evidence showing that

Schwarzmer received the cardholder agreement and that Citibank, the original

creditor, assigned Schwarzmer’s debt to Midland. However, we need not consider
these arguments because Midland waived any right to arbitrate that it held under

the card agreement when it chose to litigate Schwarzmer’s counterclaim.

Therefore, Midland’s first assignment of error is overruled.

In its second assignment of error, Midland contends that the

municipal court erred, in the alternative, by not ruling on Midland’s motion to strike

the class allegations in Schwarzmer’s amended counterclaim consistent with the

class-waiver terms of the arbitration provision.

“When a trial court does not grant [the] relief requested, the motion

is deemed to have been denied.” Diehl v. Swartz, 3d Dist. Union No. 14-96-39, 1997

Ohio App. LEXIS 525, at 5 (Feb. 7, 1997). “A ruling on a motion to strike is an

interlocutory order and is not immediately appealable.” Marc Glassman, Inc. v.

Fagan, 8th Dist. Cuyahoga No. 87164, 2006-Ohio-5577, ¶ 11. “If an order is not final

and appealable, then an appellate court has no jurisdiction to review the matter[.]”

Assn. of Cleveland Firefighters, # 93 v. Campbell, 8th Dist. Cuyahoga No. 84148,

2005-Ohio-1841, ¶ 6. Pursuant to R.C. 2505.02(B)(5), an appellate court may

review an interlocutory order that “determines that an action may or may not be

maintained as a class action.” Cooney v. Radostitz, 8th Dist. Cuyahoga No. 110009,

2021-Ohio-2521, ¶ 13. A class action may not be maintained prior to certification of

the putative class members. Gembarski, 157 Ohio St.3d 255, 2019-Ohio-3231, 134

N.E.3d 1175, at ¶ 29.

Here, Midland moved to strike allegations concerning a putative

class. Because the municipal court has not yet determined whether Schwarzmer’s
amended counterclaim may be maintained as a class action, we are without

jurisdiction to review Midland’s second assignment of error.

Accordingly, Midland’s second assignment of error is overruled.

Judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, JUDGE

ANITA LASTER MAYS, P.J., CONCURS;
LISA B. FORBES, J., CONCURS IN JUDGMENT ONLY IN PART AND DISSENTS
IN PART (WITH SEPARATE OPINION)

LISA B. FORBES, J., CONCURRING IN JUDGMENT ONLY IN PART AND
DISSENTING IN PART:

I respectfully dissent from the majority’s opinion that Midland

waived its right to arbitrate under the first assignment of error. Rather, I would find

that, under the second prong of the Blue Technologies test regarding waiver of the

right to arbitrate, Midland acted consistently with its right to arbitrate pursuant to

the credit card agreement applicable to the case at hand (the “Card Agreement”).
 The Card Agreement states that “Federal law and the law of South

Dakota, where [Citibank is] located, govern the terms and enforcement of this

Agreement.” However, it is well-settled that “while the law selected in a choice-of-

law provision of a contract governs substantive rights, the issue of arbitration is a

procedural remedy to be decided pursuant to the law of the forum state.” Choice

Hotels, Internatl., Inc. v. C&O Developers, L.L.C., 8th Dist. Cuyahoga No. 111182,

2022-Ohio-3234, ¶ 15, citing Shafer v. Metro-Goldwyn-Mayer Distrib. Corp., 36

Ohio App. 31, 172 N.E. 689 (10th Dist.1929). Accordingly, I would determine that

Ohio law governs the analysis in this opinion.

First, I would find that the Card Agreement’s arbitration clause is

enforceable under Ohio law. Appellate review of whether an arbitration agreement

is enforceable is de novo, although “any factual findings of the trial court must be

accorded appropriate deference.” Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio

St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 2. R.C. 2711.01(A) states that an

arbitration agreement in a written contract “shall be valid, irrevocable, and

enforceable, expect upon grounds that exists in law or equity for the revocation of

any contract.”

Midland presented an affidavit attesting that it mailed the Card

Agreement to Schwarzmer, the mailing was not “returned undeliverable,” and

Schwarzmer used the credit card at issue. See Bank One, Columbus, N.A. v. Palmer,

63 Ohio App.3d 491, 493, 579 N.E.2d 284 (10th Dist.1989) (“Credit card agreements

are contracts whereby the issuance and use of a credit card creates a legally binding
agreement.”). Therefore, the arbitration agreement is enforceable as to

Schwarzmer.

The original parties to the Card Agreement at issue in the case at hand

are Schwarzmer and Citibank. The Card Agreement states that Citibank “may assign

any or all of our rights and obligations under this Agreement to a third party.” As

the majority noted, in June 2018, Citibank assigned Schwarzmer’s account to

Midland Funding. Basic contract law states that, after a valid assignment, “the

assignee steps into the shoes of the assignor and assumes the rights and

responsibilities under the contract.” B&G Properties Ltd. Partnership v. OfficeMax,

Inc., 2013-Ohio-5255, 3 N.E.3d 774, ¶ 7 (8th Dist.). Therefore, the arbitration

agreement is enforceable as to Midland Funding.

Furthermore, pursuant to the Card Agreement, Midland Funding has

the right to demand arbitration of Schwarzmer’s claims against MCM, to the extent

there are any. Specifically, the Card Agreement states that “Claims made * * *

against anyone connected with us * * * such as a[n] * * * affiliated/parent/subsidiary

company” are “subject to arbitration * * *.” It is undisputed that Midland presented

an affidavit of Adam Swaninger, who is “authorized to submit this declaration on

behalf of [MCM] * * * and Midland Funding * * *.” Swaninger further stated that he

is the “Manager of Operations for [MCM],” which “manages the debt that Midland

Funding purchases.” See Little v. Midland Credit Mgt., S.D.Ohio No. 2:19-cv-5419,

2021 U.S. Dist. LEXIS 73407 (Feb. 24, 2021) (holding that “Midland Funding was

assigned the right to enforce [the arbitration] agreement, and * * * in turn,” MCM
“has the right to compel arbitration against Plaintiff as Midland Funding’s agent and

wholly owned subsidiary”).

Having found that the arbitration clause in the Card Agreement is

enforceable, I would turn to whether this right to arbitration was waived in the

instant case.

I agree with the majority’s conclusion that Midland did not waive its

right to arbitrate by filing its complaint against Schwarzmer to collect a debt. The

Card Agreement expressly states that “Individual Claims filed in a small claims court

are not subject to arbitration, as long as the matter stays in small claims court” and

“We won’t initiate arbitration to collect a debt from you * * *.”

However, the Card Agreement gives the parties the discretionary

right to arbitrate at other stages of the litigation. For example, Schwarzmer “can

choose to arbitrate * * * Claims brought against” him. Additionally, Midland “can

choose to arbitrate” if Schwarzmer “assert[s] a Claim against” it. The Card

Agreement further states as follows: “Arbitration may be requested any time, even

where there is a pending lawsuit, unless a trial has begun or a final judgment

entered. Neither [Schwarzmer] nor [Midland] waive the right to arbitrate by filing

or serving a complaint, answer, counterclaim, motion, or discovery in a court

lawsuit.”

Schwarzmer filed a counterclaim on his own behalf on September 18,

2020, alleging violations of the FDCPA and the CSPA. Midland Funding filed an
answer and, pursuant to the agreement, chose not to arbitrate these individual

claims.

On January 4, 2021, Schwarzmer filed a first amended class action

counterclaim against Midland Funding and a “new party/third-party complaint”

against MCM, seeking a declaratory judgment and “certification of three classes of

plaintiffs” and alleging violations of the FDCPA and the CSPA. When this amended

counterclaim and third-party complaint changed the legal theory upon which

Schwarzmer based his allegations, Midland chose to arbitrate these class action

claims, pursuant to its right under the agreement.

Midland acted consistently with its right to arbitrate by filing an

answer on February 8, 2021, stating as its first affirmative defense that

“Schwarzmer’s Counterclaim is governed by a valid arbitration agreement and/or

class action waiver provision. If Schwarzmer refuses to consent to arbitration,

Midland will move to compel arbitration.” Midland again acted consistently with its

right to arbitrate by filing a motion to compel arbitration on April 21, 2021. As stated

in the Card Agreement, Midland did not “waive the right to arbitrate by filing * * *

[an] answer.”

Where the majority sees Schwarzmer’s initial counterclaim as the sole

“triggering event from which Midland could have asserted its right to arbitrate,” I

see Schwarzmer’s amended class action counterclaim and third-party complaint as

another triggering event from which Midland had the right to, and did assert,

arbitration. Indeed, the parties specifically contracted for this right within the Card
Agreement. See Morgan v. Sundance, Inc., ___U.S.___, 142 S.Ct. 1708, 1713, 212

L.Ed. 753 (2022) (“[A] court must hold a party to its arbitration contract just as the

court would to any other kind.”).

The majority opinion creates the unfortunate situation in which

debtors may wait until creditors decide not exercise their right to arbitrate a certain

claim, then assert a new claim, thus changing the landscape of the litigation, only

then to argue that it is too late for the creditor to assert arbitration.

I would sustain Midland’s first assignment of error, finding that,

under the terms of the Card Agreement and based on Midland’s conduct following

the filing of Schwarzmer’s amended counterclaim, Midland did not waive its right

to arbitrate, and the municipal court abused its discretion when it denied Midland’s

motion to compel arbitration.

In concur in judgment only with the majority’s disposition of

Midland’s second assignment of error. As relates to Midland’s motion to strike, I

would find that, because there is no ruling from the municipal court on the motion

and the case remains pending, there is nothing for this court to review.