[Cite as Matrix Acquisitions, LLC v. Hooks,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

MATRIX ACQUISITIONS, LLC JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 10CA111 TIMOTHY HOOKS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2010 CV 557

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: June 15, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

PARRI J. HOCKENBERRY BRIAN J. CHISNELL JACKSON T. MOYER UAW-GM Legal Services Plan Cheek Law Offices, LLC 1075 National Parkway, P.O. Box 2668 471 E. Broad St., 12th Floor Mansfield, Ohio 44906 Columbus, Ohio 43215 Richland County, Case No. 10CA111 2

Hoffman, J.

{¶1} Defendant-appellant Timothy Hooks appeals the August 25, 2010

Judgment Entry of the Richland County Court of Common Pleas entering summary

judgment in favor of Plaintiff-appellee Matrix Acquisitions, LLC.

STATEMENT OF THE FACTS AND CASE

{¶2} On May 7, 2010, Appellee Matrix Acquisitions LLC (“Matrix”) filed a

Complaint against Appellant Timothy Hooks asserting Appellant owed a debt arising

from a Chase Bank USA credit card account purchased by Matrix. The credit card was

issued by Chase Bank USA/First USA (“Chase”).

{¶3} After Appellant filed his Answer, Matrix filed a motion for summary

judgment supported by an affidavit of an unidentified custodian of Matrix, a Bill of Sale

from Chase to Dodeka, LLC dated December 1, 2008, an Assignment of Accounts and

Waiver of Notice of Transfer of Claims from Dodeka, LLC to Matrix dated March 5,

2010, Bank One/Chase Bank Billing Statements for the period of February 27, 2003 to

November 25, 2006, six checks from Appellant payable to Chase for the period of

September 22, 2006 to April 19, 2007, and Appellant’s responses to discovery requests.

{¶4} Via Judgment Entry of August 25, 2010, the trial court entered judgment in

favor of Matrix in the amount of $5,966.94, plus interest of $5,186.82 through July 15,

2010 and further interest at 4% thereafter.

{¶5} Appellant now appeals, assigning as error:

{¶6} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN

DETERMINING THAT PLAINTIFF/APPELLEE IS ENTITLED TO JUDGMENT AS A

MATTER OF LAW. Richland County, Case No. 10CA111 3

{¶7} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN

DETERMINING THAT THERE WERE NO GENUINE ISSUES OF MATERIAL FACT.”

{¶8} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987),

,

.

Therefore, we must refer to Civ.R. 56(C), which provides, in pertinent part: “Summary

judgment shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence in the pending

case, and written stipulations of fact, if any, timely filed in the action, show that there is

no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. * * * A summary judgment shall not be rendered unless it

appears from the evidence or stipulation, and only from the evidence or stipulation, that

reasonable minds can come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made, that party being entitled

to have the evidence or stipulation construed most strongly in the party's favor.”

{¶9} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears that a material fact is genuinely disputed. The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for its motion

and identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact. The moving party may not make a conclusory assertion that the

nonmoving party has no evidence to prove its case. The moving party must specifically

point to some evidence which demonstrates that the nonmoving party cannot support its

claim. If the moving party satisfies this requirement, the burden shifts to the nonmoving Richland County, Case No. 10CA111 4

party to set forth specific facts demonstrating there is a genuine issue of material fact for

trial. Vahila v. Hall,

, 1997–Ohio–259,

, citing

Dresher v. Burt (1996),

,

.

I.

{¶10} Appellant asserts the trial court erred in applying the incorrect statute of

limitations in this matter. Appellant argues because Bank One and Chase were

Delaware corporations and the billing statements originated in Delaware, it is presumed

Delaware law controls under the cardholder agreement. Delaware law mandates a

three-year statute of limitations for actions on an account. Title 10 of Delaware Code

Section 8106.

{¶11} Appellant asserts pursuant to Ohio’s borrowing statute, found in R.C.

2305.03, the cause of action herein accrued in Delaware, therefore the Delaware

statute of limitations governs the action. Further, Appellant suggests the choice of law

provision in the cardholder agreement most likely specifies Delaware law should govern

the action.

{¶12} Matrix did not offer the cardholder agreement into evidence. Rather,

Matrix argued either a fifteen-year statute of limitations for written contracts, pursuant to

Ohio Revised Code Section 2305.06, applies to this action, or a six-year statute of

limitations for unwritten contracts, pursuant to Ohio Revised Code Section 2305.07,

applies.

{¶13} “The Ohio Supreme Court has adopted the Restatement (Second) of

Conflict of Laws to govern conflict of law issues. Cole v. Mileti,

(6th

Cir. 1998). When there is a conflict between two states' statutes of limitations, the Richland County, Case No. 10CA111 5

Restatement provides that ‘[a]n action will be maintained if it is not barred by the statute

of limitations of the forum, even though it would be barred by the statute of limitations of

another state.’

(citing Restatement (Second) of Conflict of Laws § 142(2) (1971)).

[Footnote omitted.] Therefore, Ohio courts are required to apply Ohio's statute of

limitations to an action filed in Ohio even if that action would be time-barred in another

state. Id.” Dudek v. Thomas & Thomas Attorneys & Counselors at Law, LLC (N.D.

Ohio. 2010),

.

{¶14} Appellant raised the statute of limitations argument as an affirmative

defense and Appellant has the burden of proof with regard to establishing the defense.

A motion for summary judgment forces the non-moving party to produce probative

evidence on all essential elements of the case for which the burden of production rests

on that party. Celotex Corp. v. Catrett, (1987),

. The evidence must be

such that a reasonable jury might return a verdict in the party’s favor. Seredick v.

Karnok (1994),

.

{¶15} Appellant has conclusively and summarily alleged the cause of action

accrued in Delaware and the cardholder agreement is likely to elect Delaware Law as

the choice of law. However, upon our review, we find Appellant has not affirmatively

demonstrated via the pleadings, written admissions and affidavits submitted in support

thereof, how the laws of the State of Delaware govern the subject account. As neither

party has filed the cardholder agreement with their pleadings or in support of the motion

or in opposition to summary judgment, we find the trial court properly applied the law of

the State of Ohio. Richland County, Case No. 10CA111 6

{¶16} Appellant further argues R.C. 1319.12 applies to Matrix as a collection

agency; therefore, Matrix failed to prove proper assignment of the subject account

pursuant to the statute’s requirements.

{¶17} Matrix is not a debt collection agency; rather, the owner of the debt owed.

The record demonstrates Matrix is attempting to collect the debt on its own behalf, not

on behalf of another party or creditor. The Bill of Sale Matrix submitted in support of its

motion for summary judgment indicates any and all interest, title and ownership rights to

the accounts receivable were sold and not merely assigned to Matrix.

{¶18} Appellant’s first assignment of error is overruled.

II.

{¶19} Appellant asserts the affidavit of an “unidentified individual”1 submitted as

evidence of the chain of title for Appellant’s account is sufficient to establish the Bill of

Sale included the sale of Appellant’s account to Dodeka, LLC. We agree.

{¶20} The affidavit submitted by Appellee identified and attached a Bill of Sale

from Chase Bank USA, N.A. to Dodeka, LLC which purports to transfer all Chase’s

rights to certain accounts receivable described in an attached Exhibit One. The affiant

is records custodian for Appellee. While we question whether the affiant is competent

to lay the proper foundation for the transfer from Chase to Dodeka, we need not answer

that issue now. From our review of the file, we cannot find Exhibit One which we

believe is necessary to show a transfer of Appellant’s account to Dodeka.

{¶21} The second document attached as Exhibit B to the affidavit is an

Assignment of Accounts from Dodeka to Appellee. It purports to transfer Dodeka’s

accounts receivable to Appellee as described on computer files furnished by Dodeka to 11 Appellant’s brief identifies the affiant as Gabriel Cheek. Richland County, Case No. 10CA111 7

Appellee. Again, we are unable to locate such computer files from our review of the

record

{¶22} We find Appellee’s affidavit insufficient to establish it is the legal owner of

the Appellant’s account. Appellant’s second assignment of error is sustained.

{¶23} The August 25, 2010 Judgment Entry of the Richland County Court of

Common Pleas is reversed, and the matter remanded for further proceedings in

accordance with the law and this opinion.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY Richland County, Case No. 10CA111 8

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

MATRIX ACQUISITIONS, LLC : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : TIMOTHY HOOKS : : Defendant-Appellant : Case No. 10CA111

For the reasons stated in our accompanying Opinion, the judgment of the

Richland County Court of Common Pleas is reversed, and the matter is remanded to

that court for further proceedings in accordance with the law and our Opinion. Costs to

Appellee.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY