Calvary S.P v. I., L.L.C. v. Krantz

[Cite as Calvary S.P.V. I., L.L.C. v. Krantz, 2012-Ohio-2202.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97422
CAVALRY SPV I, LLC
PLAINTIFF-APPELLEE
vs.
MARC K. KRANTZ
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-734879
BEFORE: Kilbane, J., Jones, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: May 17, 2012
APPELLANT
Marc K. Krantz, pro se
24877 Letchworth Road
Beachwood, Ohio 44122
ATTORNEY FOR APPELLEE
Cliff G. Linn
Immerman & Tobin Co., LPA
10810 Indeco Drive
Cincinnati, Ohio 45241
MARY EILEEN KILBANE, J.:
{¶1} Pro se defendant-appellant, Mark K. Krantz, appeals from the order of the
trial court that denied his motion for summary judgment in a collection action brought by
plaintiff-appellee, Cavalry SPV I, LLC (“Cavalry”), assignee of Citibank (South Dakota)
N.A. (“Citibank”). For the reasons set forth below, we affirm.
{¶2} On August 23, 2010, Cavalry filed this action for collection on an account,
alleging that defendant owes $16,255.36 on a credit card issued by Citibank, and that
Cavalry is the purchaser and assignee of this debt. Cavalry also sought prejudgment
interest in the amount of $19,613.03, the accumulated interest allegedly incurred due to
nonpayment of the debt.
{¶3} Krantz denied liability. On July 27, 2011, he moved for summary
judgment, asserting that the account belonged to Citibank, Cavalry lacked standing,
Cavalry failed to provide a detailed accounting of the fees and charges and had not
disclosed the material terms of the agreement, and the complaint was generally
insufficient. In support of his motion for summary judgment, defendant submitted a
“Citibank Credit Card Insurance Trust” that described certain Class A Notes underwritten
by Citigroup, Lehman Brothers, and RBS Greenwich Capital, in connection with a
Prospectus Supplement dated June 20, 2005. This document was not authenticated, and
defendant did not establish that his debt is part of the Class A Notes from Citibank’s
Credit Card Insurance Trust.
{¶4} In opposition, Cavalry presented evidence that on February 27, 2008, it
entered into a Bill of Sale, Assignment and Assumption Agreement with Citibank,
through which it purchased various credit card accounts, including defendant’s Citibank
account. Based upon the last statement that Citibank issued to defendant on July 19,
2006, defendant owes $16,255.36 on the account and it is subject to a 24 percent annual
rate of interest. Cavalry also presented evidence that defendant’s account “became
delinquent and was charged off on 7/19/06.” As of that date, defendant owed $19,613.03
in accumulated interest on the account.
{¶5} On August 17, 2011, the trial court denied defendant’s motion for summary
judgment. The matter proceeded to a bench trial on Cavalry’s complaint on September
19, 2011. At trial, Cavalry presented the testimony of John Spruill of Cavalry’s accounts
department. Spruill testified that Cavalry purchased defendant’s account from Citibank
on February 27, 2008. Cavalry’s business records, as authenticated by Spruill,
established that the present balance due on Krantz’s account is $35,868.39, and this
amount reflects $16,255.36 in principal charges and $19,613.03 in accumulated interest.
{¶6} Defendant did not cross-examine Cavalry’s witness and did not present
witnesses or documentary evidence.
{¶7} On September 20, 2011, the trial court entered judgment for Cavalry in the
amount of $16,255.36, plus prejudgment interest in the amount of $19,613.03, in addition
to statutory interest from the date of the court’s order.
{¶8} Defendant now appeals, assigning the following error for our review:
The trial court erred to the prejudice of Defendant-Appellant, Marc K.
Krantz when it denied his motion for summary judgment of July 27, 2011,
where it was clearly shown that an incorrect plaintiff brought suit in this
case.
{¶9} As an initial matter, we note that in Ortiz v. Jordan, 526 U.S. 1, 131 S.Ct.
884, 888-89, 178 L.Ed.2d 703 (2011), the Supreme Court held that a party may not
“appeal an order denying summary judgment after a full trial on the merits” because that
“order retains its interlocutory character as simply a step along the route to final
judgment.” The court reasoned that “[o]nce the case proceeds to trial, the full record
developed in court supersedes the record existing at the time of the summary judgment
motion.” Id. at 889.
{¶10} Herein, following the trial court’s denial of defendant’s motion for summary
judgment on August 17, 2011, the matter proceeded to a bench trial on the merits on
September 19, 2011. Cavalry demonstrated that $16,255.36 in principal charges and
$19,613.03 in accumulated interest is due and owing on defendant’s account. Defendant
presented no evidence to refute the debt, and final judgment was rendered for Cavalry.
Therefore, the record produced at trial supersedes the record produced on summary
judgment and establishes the basis of the court’s judgment.
{¶11} In any event, it is well settled that once a moving party meets the initial
burden of providing specific facts that demonstrate its entitlement to summary judgment,
the nonmoving party must produce competent evidence to establish the existence of a
genuine issue for trial. Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107, 662
N.E.2d 264. The nonmoving party may not rely upon unsupported allegations. Civ.R.
56(E).
{¶12} In this matter, defendant moved for summary judgment, but Cavalry
provided specific facts that demonstrated that it purchased defendant’s Citibank account
on February 27, 2008, the account is delinquent, and $16,255.36 in principal charges and
$19,613.03 in accumulated interest are due. Defendant alleged that Cavalry lacked
standing and also presented a Citibank Credit Card Issuance Trust describing certain
Class A Notes contained within a Prospectus Supplement. This evidence was
insufficient to defeat Cavalry’s standing in this matter because it was unauthenticated,
failed to establish that his debt is part of the Class A Notes from Citibank’s Credit Card
Insurance Trust, and failed to establish that defendant was entitled to judgment as a
matter of law.
{¶13} Moreover, insofar as defendant asserted that his account is a note and
therefore actually part of the Citibank Credit Card Issuance Trust rather than Cavalry’s
February 27, 2008, Bill of Sale, Assignment and Assumption Agreement with Citibank,
we note that the Bill of Sale specifically lists defendant’s account as one of the accounts
purchased by Cavalry. Further, there is no basis for the contention that defendant’s
credit card account is the equivalent of a promissory note. See Smith v. Palasades
Collection, LLC, N.D.Ohio No. 1:07 CV 176, 2007 WL 1039198 (Apr. 3, 2007). In that
case, the court rejected a debtor’s claim that the credit card company could not collect on
his debt because it failed to establish that it was a cosigner of the note and a holder in due
course. The court stated:
[The debtor’s claim] is based upon the flawed premise that a credit card
agreement is equivalent to a promissory note. The credit card relationship
is an offer by the issuer for a series of unilateral contracts which are actually
formed when the holder uses the credit card to buy goods or services or to
obtain cash. In re Ward, 857 F.2d 1082, 1086-87 (6th Cir.1988) ( citing
Restatement (Second) of Contracts § 31 (1981)). The rights and
obligations of the parties to the contracts, including the rights to assign a
debt for collection, are governed by the terms of the agreement. See Id. A
negotiable instrument, such as a promissory note, however, is a writing
signed by the maker, containing an unconditional promise to pay a sum
certain in money, on demand or at a definite time, to the order of a
particular person or entity or to the bearer. U.C.C. § 3-104 (1972); Fed.
Deposit Ins. Corp. v. Wood, 758 F.2d 156, 160 (6th Cir.1985).
{¶14} In accordance with the foregoing, defendant was not entitled to summary
judgment. This assignment of error is without merit.
{¶15} Moreover, because Cavalry established at trial that defendant owed
$16,255.36 in principal charges, $19,613.03 in accumulated interest, and defendant
presented no evidence to refute this debt, the trial court properly awarded judgment to
Cavalry herein.
{¶16} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
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 EILEEN KILBANE, JUDGE
LARRY A. JONES, SR., P.J., and
COLLEEN CONWAY COONEY, J., CONCUR