Citibank v. Eckmeyer, 2009 Ohio 2435 (Ohio App. 5/8/2009), No. 2008-P-0069.
| Decision Date | 08 May 2009 |
| Docket Number | No. 2008-P-0069. |
| Parties | Citibank (South Dakota), Na, Plaintiff-Appellee, v. Keith W. Eckmeyer, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Thomas L. Rosenberg and Paul W. Lombardi, Roetzel & Andress, L.P.A., 155 East Broad Street, 12th Floor, Columbus, OH 43215 (For Plaintiff-Appellee).
James E. Banas and Paul R. Hoffer, 3076 Wadsworth Road, Norton, OH 44203 (For Defendant-Appellant).
{¶1} Appellant, Keith W. Eckmeyer, files this timely appeal from the judgment of the Portage County Court of Common Pleas granting summary judgment in favor of appellee, Citibank (South Dakota), NA. For the reasons discussed below, we affirm the judgment of the trial court.
{¶2} On June 13, 2007, Citibank filed a complaint against Eckmeyer alleging that Eckmeyer owed $19,448.29 as a result of defaulting on his credit card agreement. It attached to its complaint a copy of a statement demonstrating Eckmeyer's name, his account number, the current balance, and interest rate. Eckmeyer filed a motion for more definite statement, pursuant to Civ.R. 12(E), claiming that Citibank failed to meet the requirements as set forth in Civ.R. 10(D). The trial court denied Eckmeyer's motion.
{¶3} Eckmeyer filed an answer instanter denying Citibank's allegations and raising affirmative defenses, including the following: (1) failure to comply with R.C. Chapter 1703, et seq., (2) improper account, (3) accord and satisfaction, and (4) recoupment/set off.
{¶4} Thereafter, Eckmeyer filed a motion to dismiss the complaint based upon Citibank's failure to prosecute claims as an unregistered foreign entity, pursuant to R.C. 1703.01 through R.C. 1703.31. The trial court denied said motion on January 28, 2008.
{¶5} On April 22, 2008, Citibank moved for summary judgment. In support of its motion, Citibank attached copies of the following: monthly accounting statements, detailing account activity from January 2000 through September 2007; the credit card agreement; an affidavit from Kathy Rizor, the records custodian, averring that there is an unpaid balance on Eckmeyer's account of $19,448.29 plus interest on the principle balance at the rate of 24.99% per annum from the date of judgment, and court costs; and a certificate of the merger between Universal Bank and Citibank, effective January 7, 2002.
{¶6} Eckmeyer filed a brief and affidavit in opposition to Citibank's motion for summary judgment. Eckmeyer argued that Citibank (1) failed to prove the terms of the contract, (2) failed to accept his compromised payment of $7,000, and (3) does not have standing to seek redress in the courts of Ohio, pursuant to R.C. Chapter 1703, et seq. {¶7} The trial court entered judgment in favor of Citibank in the amount of $19,448.29, plus interest.
{¶8} Eckmeyer filed a timely appeal and, as his first assignment of error, alleges:
{¶9} "The trial [c]ourt erred to the prejudice of Defendant-Appellant in overruling his Civ.R. 12(E) Motion for a More Definite Statement in response to Plaintiff-Appellee's complaint."
{¶10} An action on an account, as in the instant case, is a suit claiming the balance of the account due to one of the parties "`as a result of (a) series of transactions,'" not to each item of the account. Citibank (South Dakota), N.A. v. Lesnick, 11th Dist. No. 2005-L-013, 2006-Ohio-1448, at ¶8. (Citation omitted.) "The purpose of an action on an account is `to avoid the multiplicity of suits necessary if each transaction between the parties (or item on the account) would be construed as constituting a separate cause of action.'" Id. (Citation omitted.)
{¶11} Although Ohio is a notice-pleading state, Civ.R. 10(D)(1) provides, in relevant part:
{¶12}
{¶13} Eckmeyer argues that Citibank's complaint was vague and ambiguous, and the attached statement failed to comply with Civ.R. 10(D)(1).
{¶14} In denying Eckmeyer's motion for a more definite statement, the trial court, in essence, ruled that Citibank's complaint was sufficient. We agree and hold that Citibank's complaint and the attached account satisfied Civ.R. 10(D)(1) for pleading purposes.
{¶15} Eckmeyer alleges that Citibank failed to attach to its complaint a copy of the agreement upon which it relied. However, as previously stated, the instant case involves a suit concerning a credit card balance and, therefore, is an action on an account. Capital One Bank v. Toney, 7th Dist. No. 06 JE 28, 2007-Ohio-1571, at ¶34. (Citations omitted.) As a result, Citibank was required to comply with Civ.R. 10(D), which mandates that a copy of the account must be attached to the complaint. Id. (Citations omitted.)
{¶16} Although "account" is not defined in Civ.R. 10(D)(1), this court has recognized that in order to show a prima facie case for money owed on an account:
{¶17} "`[A]n account must show the name of the party charged and contain: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum); (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items which permits the calculation of the amount claimed to be due.'" Citibank (South Dakota), N.A. v. Lesnick, 2006-Ohio-1448, at ¶9. (Citations omitted.)
{¶18} As noted by the Fourth Appellate District, "Rule 10(D)(1) does not require a plaintiff to attach `a complete copy of the account' ***, nor does it require a creditor to attach a copy of every statement issued to the borrower." Capital One Bank v. Nolan, 4th Dist. No. 06CA77, 2008-Ohio-1850, at ¶10.
{¶19} In the instant case, Citibank attached an account to its complaint that identified Eckmeyer's name, his account number, the interest rate, and the amount purported due. As such, contrary to Eckmeyer's assertion, he was presented with adequate information to put him on notice and to allow him to file a proper responsive pleading. See Capital One Bank v. Nolan, 2008-Ohio-1850, at ¶12.
{¶20} Additionally, while the attached account does not have a beginning balance of zero, it is a "provable sum." Furthermore, Eckmeyer did not dispute the existence of such account nor did he present evidence illustrating such account was incorrect.
{¶21} Therefore, Citibank satisfied the pleading requirements as set forth in Civ.R. 10(D)(1), and Eckmeyer's first assignment of error is without merit.
{¶22} Eckmeyer's second assignment of error maintains:
{¶23} "The trial [c]ourt erred to the prejudice of Defendant-Appellant in overruling his Civ.R. 12(B)(1) motion to dismiss Plaintiff-Appellee's complaint for lack of authority and standing to bring actions in the courts of Ohio for failing to comply with Ohio corporate law pursuant to O.R.C. 1703.01 through O.R.C. 1703.31."
{¶24} At the outset, we note that Eckmeyer filed a motion to dismiss pursuant to Civ.R. 12(B)(1), lack of subject matter jurisdiction; however, in his motion, he maintained only that Citibank lacked standing to initiate the instant lawsuit. Standing does not challenge the subject matter jurisdiction of a court; it "`challenges the capacity of a party to bring an action.'" Washington Mut. Bank v. Beatley, 10th Dist. No. 06AP-1189 2008-Ohio-1679, at ¶10. (Citation omitted.) Furthermore, Eckmeyer's 12(B)(1) motion to dismiss was not properly raised, as Civ.R. 12(B) permits the Civ.R. 12(B)(1)-(6) defenses to be raised in the responsive pleading or, at the option of the pleader, prior to the responsive pleading. This defense was not raised in Eckmeyer's answer or by prior motion.
{¶25} Even though Eckmeyer failed to properly raise the 12(B)(1) defense, we will address his claim that because Citibank is not properly licensed under R.C. Chapter 1703, et seq., it is precluded from bringing an action in Ohio pursuant to R.C. 1703.29(A), which prohibits a "foreign corporation" that is not properly registered by the secretary of state from maintaining any action in an Ohio court. While Eckmeyer does not dispute the fact that Citibank is a national bank, he does allege that a nationally chartered bank is not preempted from complying with a state notice requirement.
{¶26} ***." SPGGC, LLC v. Ayotte (2007), 488 F.3d 525, 530-531....
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