Citibank, N.A. v. Hine

• Decision Date: 07 February 2019
• Docket Number: No. 17CA3624,17CA3624
• Citation: 130 N.E.3d 924,2019 Ohio 464
• Parties: CITIBANK, N.A. Plaintiff-Appellee, v. Katherine HINE, Defendant-Appellant.
• Court: Ohio Court of Appeals

130 N.E.3d 924

2019 Ohio 464

CITIBANK, N.A. Plaintiff-Appellee,

v.Katherine HINE, Defendant-Appellant.

No. 17CA3624

Court of Appeals of Ohio, Fourth District, Ross County.

Released: February 7, 2019

David L. Kastner, Attorney at Law, Beavercreek, Ohio, Pro Se Appellant.

Katherine Hine, Chillicothe, Ohio, Pro Se Appellant.

Robert C. Folland and David J. Dirisamer, Barnes & Thornburg LLP, Columbus, Ohio, for Appellee Citibank, N.A.

DECISION AND JUDGMENT ENTRY

McFarland, J.

{¶1} Appellant Katherine Hine and interested party Appellant David L. Kastner, Hine's prior attorney, jointly appeal various entries of the Ross County Court of Common Pleas. Appellants have set forth six assignments of error challenging the propriety of the trial court's ruling on the parties' motions for summary judgment, Appellee Citibank, N.A.'s motion for directed verdict, and the parties' motions for sanctions. Upon review of the record, we find merit to the first assignment of error. Accordingly, we affirm in part, reverse in part, and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

{¶2} On April 4, 2016, Citibank, N.A., successor to Citibank (South Dakota), N.A. (hereinafter "Citibank"), filed a complaint on a credit card account debt, alleging Katherine Hine owed the sum of $ 15,013.83. Attached to the complaint was a Sears Mastercard account statement in the name of Katherine Hine and addressed to her at 189 E. Water Street Rear, Chillicothe, Ohio. The due date of the amount due was November 13, 2015. The statement also reflected an interest rate of 25.24% on all regular purchases. This appeal challenges various trial court rulings and involves a voluminous trial court record, all of which arose from what appeared at the outset to be a "rather straightforward collections case."¹

{¶3} On May 4, 2016, Katherine Hine filed a motion to dismiss the complaint by and through her attorney, David L. Kastner.² Among other assertions, she argued that Citibank had no standing to establish its right to collect on the Sears credit card account. Citibank filed a Brief in Opposition to Defendant's Motion to Dismiss. Hine filed a reply brief. The trial court denied Hine's motion to dismiss.

{¶4} Suffice it to say, there were numerous filings in the underlying proceedings, which necessitated responsive pleadings from the adverse party. While we set forth an outline of the proceedings here, in the interest of brevity, we will set forth additional pleadings and dates in the body of this opinion, where pertinent.

{¶5} On September 6, 2016, Hine filed a Jury Demand. On October 18, 2016, the court filed a pretrial conference Order which explicitly stated at the last paragraph: "The Court directs that the attorney or attorneys who will try this case shall be present at the pretrial." Attorney Kastner later filed a Motion to Convert December 2016 Pre-Trial Conference to Phone Conference. The trial court granted Kastner's request. Subsequent to the telephone pre-trial conference, the court filed an entry scheduling a jury trial date of August 3, 2017.

{¶6} Citibank filed notices of the depositions of Hine and another person, Karen Stanley. Hine subsequently filed a "Notice Re Court's Scheduling." This pleading sets forth 12 paragraphs of information for purposes of "notice for the record." Hine advises of the intent to appeal the court's orders compelling the depositions of Ms. Stanley and herself. Several pertinent paragraphs are set forth as follows:

"3. The aforementioned orders were never sent to co-counsel Robert Fitrakis, evidently because this court did not instruct the clerk to do so.³

* * *

5. Without an extensive amount of prior notice, co-counsel has long been unavailable for hearings on Tuesdays and Thursdays because of his teaching responsibilities.

* * *

7. The court's scheduling of May 2 was done without consulting with co-counsel's schedule. Co-counsel and counsel share the representation. The undersigned generally does not make court appearances in this case due to his responsibilities with contract work involving the U.S. military."

{¶7} On April 26, 2017, Hine, through Kastner, filed a Motion for Stay to the Trial court, pending her appeal, supported by affidavits from Stanley, Kastner, and herself. On May 4, 2017, the trial court overruled the motion for stay.⁴ Hine's appeal to this court was eventually dismissed. See Citibank N.A. v. Hine , 2017-Ohio-5537, 93 N.E.3d 108 (4th Dist.).

{¶8} On May 8, 2017, Attorney Fitrakis filed a Motion for Leave to Withdraw as Defendant's Attorney. In the motion, Attorney Fitrakis advised he was engaged "ostensibly" because Attorney Kastner was unavailable to attend a previous hearing and that he had not been engaged for future activity. Attorney Fitrakis attached an email from Attorney Dirisamer asking him to "clarify the nature of his representation," as Karen Stanley had advised that Kastner and Fitrakis were her attorneys and Attorney Kastner had further advised he "would not be appearing in Ross County for any proceedings related to this matter * * * due to the biased nature of the Court."

{¶9} On June 21, 2017, both Citibank and Hine filed motions for summary judgment. On July 12, 2017, Attorney Darren L. Meade filed a notice of appearance of co-counsel on behalf of Ms. Hine.

{¶10} On August 1, 2017, the trial court issued decisions on the pending motions for summary judgment. The trial court found as a matter of law that Citibank had standing to bring its action. The trial court granted partial summary judgment to Citibank on the issue of standing and denied Hine's motion for summary judgment.

{¶11} On August 2, 2017, Attorney Paul N. Garinger filed a Notice of Appearance as co-counsel on behalf of Citibank. On August 2, 2017, Attorney Kastner filed a Motion to Withdraw as counsel. On August 3, 2017, Hine formally waived her appearance at the jury trial.

{¶12} The jury trial commenced on August 3, 2017. Steven Sabo, assistant vice-president of Citibank, testified he is a primary custodian of Citibank's business records. He reviews the business records and has reviewed the records of Katherine Hine. He testified Citibank maintains records from accountholders, merchants, and credit bureaus. All information is stored electronically and Sabo has access to the computer system.

{¶13} Sabo identified Exhibit 1 as a true and accurate copy of a credit card agreement, dated 2010, existing between Citibank and Appellant. The card agreement, a 16-page document, governs the use of the account. Sabo testified the document would have been sent to Appellant on or about October 2010. Sabo testified he had verified that Appellant received the card based on its code with a number that he cross-referenced to the actual card product based upon Citibank's electronic storage system. Specifically, he testified:

"Systemically, there's no record of ever turned down [sic ] coming back, so I would have to say yes, every payment- - every billing statement was sent to Ms. Hine."

{¶14} Exhibit 2 was identified as a card agreement from 2004. Sabo testified Exhibit 2 was kept in the regular practice of Citibank. Exhibit 3 was identified as 367 pages of duplicated billing statements sent to Appellant on a monthly basis and created by Citibank in the ordinary course of its business. Sabo testified he maintained these records in the course of his job duties.

{¶15} Exhibit 3, page 110, was a copy of a billing statement dated November 16, 2010. It was addressed to Appellant. It showed a previous balance of $ 49.00 and payment received of $ 49.00, bringing her account balance to zero. Sabo testified that Exhibit 3 demonstrated that Appellant used the credit card after she received the October 2010 card agreement (Exhibit 1).

{¶16} Exhibit 4 was identified as 90 pages of copies of payments that Citibank received throughout the years of the account. The exhibits showed copies of a payment coupon which Citibank would prepare as part of its monthly statement to be returned with the payment. The exhibit also showed copies of checks Citibank received as payment. These documents were also maintained in the ordinary course of business. Sabo explained he had actually observed the process of Citibank's receiving payment, making copies of checks, and electronic storage.

{¶17} Sabo testified the last statement Appellant received on December 17, 2014 reflected an account balance of $ 13,025.96. He also identified the last billing statement sent to Appellant dated October 16, 2015, which showed a total new balance of $ 15,013.83 and included interest.

{¶18} On cross-examination, Sabo admitted he does not have any personal experience with Sears' internal business practices. Sabo testified that the Citibank account was branded with Sears on Citibank's own card. He admitted the account was not originated by Citibank so he does not know what the application looked like or what the interest rate was. The account was acquired by Citibank. Citibank does not have the origination records. To his knowledge, the account with Sears was opened in August 1994.

{¶19} Sabo testified that Citibank does not have any card agreement or other record of Appellant's signing an agreement for a specified interest rate or a specified rate of late fees. However, he further testified such an agreement "does not exist within the credit card industry."

{¶20} After Citibank presented its evidence and rested, Hine moved for a directed verdict pursuant to Civ.R. 50. The Court overruled the motion. Hine elected not to present evidence and rested. Citibank subsequently moved for a directed verdict. After considering the arguments of counsel, the trial court sustained Citibank's motion.

{¶21} On September 8, 2017, Hine filed "Defendant's Notice RE Pro Se Status & Discharge of Counsel." She explained she had discharged her counsel and intended, for the time being, to represent herself. Underneath the signature line, she listed the...