Midland Funding, L.L.C. v. Ogunduyile , 2017 Ohio 9314 ( 2017 )


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  • [Cite as Midland Funding, L.L.C. v. Ogunduyile, 2017-Ohio-9314.]
    IN THE COURT OF APPEALS OF OHIO
    SECOND APPELLATE DISTRICT
    MONTGOMERY COUNTY
    MIDLAND FUNDING, LLC                                :
    :
    Plaintiff-Appellee                          :    Appellate Case No. 27622
    :
    v.                                                  :    Trial Court Case No. 17-CV-1383
    :
    AYO OGUNDUYILE                                      :    (Civil Appeal from
    :     Common Pleas Court)
    Defendant-Appellant                         :
    :
    ...........
    OPINION
    Rendered on the 29th day of December, 2017.
    ...........
    AMANDA R. YURECHKO, Atty. Reg. No. 0072458, 323 West Lakeside Drive, Suite 200,
    Cleveland, Ohio 44113
    Attorney for Plaintiff-Appellee
    AYO OGUNDUYILE, 536 Daytona Parkway, Apt. T3, Dayton, Ohio 45406
    Pro Se, Defendant-Appellant
    .............
    -2-
    HALL, P.J.
    {¶ 1} Ayo Ogunduyile appeals, pro se, from a default judgment entered against
    him. Ogunduyile has not identified any specific assignments of error but argues that the
    trial court erred not in entering the judgment but in the amount of the judgment. Finding
    that there is no basis on which to reverse, we affirm.
    {¶ 2} In 2011, Ogunduyile opened a credit-card account with Credit One Bank,
    N.A. Evidently, in 2013, Credit One considered the account in default and wrote it off. The
    account was ultimately bought by Midland Funding, LLC, which in 2017, brought this
    action on account against Ogunduyile.
    {¶ 3} The complaint alleges that Ogunduyile owes $877.75, the balance due on
    the credit-card account. Midland does not seek pre-judgment interest on the balance. A
    monthly account statement attached to the complaint shows that the balance in July 2013
    was $877.75. Also attached to the complaint is a long chain of title showing how the
    account wended its way to Midland.
    {¶ 4} Ogunduyile was properly served with the complaint, but he did not file an
    answer. The trial court entered a notice of default, which was sent to Ogunduyile. Midland
    then filed a motion for default judgment attached to which it attached the affidavit of a
    “Legal Specialist” employed by the servicer of the account. The affidavit states that as of
    February 14, 2017, Ogunduyile owed a balance of $877.75. The trial court granted
    Midland’s motion for a default judgment on May 15, 2017, and entered judgment against
    Ogunduyile for $877.75 plus costs.
    {¶ 5} Ogunduyile appealed.
    {¶ 6} In his pro se brief, Ogunduyile does not contest the entry of default judgment
    -3-
    but only the judgment amount. He asserts that “[t]he judgment for $877.75 cannot be
    authenticated” because the credit limit on the credit card account was only $400, so
    he “was not allowed to charge beyond that amount.” Ogunduyile states that he is
    “prepared to pay off the credit limit of $400.00 which [he] charged on the credit card.”
    {¶ 7} Civ.R. 55 provides that a default judgment may be entered “[w]hen a party
    against whom a judgment for affirmative relief is sought has failed to plead or otherwise
    defend.” Civ.R. 55(A); see also Lykins v. Miami Valley Hosp., 
    157 Ohio App. 3d 291
    , 2004-
    Ohio-2732, 
    811 N.E.2d 124
    , ¶ 92 (2d Dist.) (“Civ.R. 55(A) provides that default judgment
    may be awarded when a defendant fails to make an appearance by filing an answer or
    otherwise defending an action.”). A trial court’s entry of default judgment is reviewed for
    an abuse of discretion. Wells Fargo Fin. Natl. Bank v. Douglas, 2d Dist. Montgomery No.
    24349, 2011-Ohio-3739, ¶ 17.
    {¶ 8} Civ.R. 8(D) states that “[a]verments in a pleading to which a responsive
    pleading is required, other than those as to the amount of damage, are admitted when
    not denied in the responsive pleading.” In an action on account, “ ‘[p]roof of damages is
    not required before a default judgment can be granted in an action filed upon a liquidated
    damage claim.’ ” RLM Properties, Ltd. v. Brammer, 2d Dist. Champaign No. 2014 CA 6,
    2014-Ohio-3509, ¶ 13, quoting Mid-American Acceptance Co. v. Reedy, 11th Dist. Lake
    No. 89-L-14-072, 
    1990 WL 94816
    , *2 (Jun. 29, 1990). If the account is a credit-card
    account, the amount that a creditor alleges is due constitutes liquidated damages “if ‘the
    amount can be determined with exactness from the agreement between the parties or by
    an arithmetical process or by the application of definite rules of law.’ ” Discover Bank v.
    Swartz, 2016-Ohio-2751, 
    51 N.E.3d 694
    , ¶ 18 (2d Dist.), quoting L.S. Industries v. Coe,
    -4-
    9th Dist. Summit No. 22603, 2005-Ohio-6736, ¶ 22. Therefore “ ‘ “when the complaint and
    the motion for default judgment clearly set forth the amount of damages” and reveal the
    amount to be ascertainable, “the trial court does not abuse its discretion in relying on the
    amount asserted” in the complaint.’ ” Brammer at ¶ 13, quoting Am. Communications of
    Ohio, Inc. v. Hussein, 10th Dist. Franklin No. 11AP-352, 2011-Ohio-6766, ¶ 16, quoting
    Nationwide Mut. Fire Ins. Co. v. Barrett, 7th Dist. Mahoning No. 08 MA 130, 2008-Ohio-
    6588, ¶ 26.
    {¶ 9} Here, Midland alleges in its complaint that Ogunduyile owes $877.75 on a
    credit-card account. A monthly account statement attached to the complaint shows that
    in July 2013 the balance of the account was $877.75. And the affidavit attached to
    Midland’s motion for default judgment states that as of February 14, 2017, the balance
    was $877.75. While it does appear that the credit limit was $400, there is no evidence to
    support Ogunduyile’s assertion that he was not allowed to charge more than the credit
    limit; further, documents attached to the complaint indicate account charges for
    additional interest, fees and late charges.
    {¶ 10} The complaint and motion for default judgment clearly show the balance
    alleged in the complaint. The trial court did not err by relying on that amount.
    {¶ 11} The trial court’s judgment is affirmed.
    .............
    FROELICH, J. and TUCKER, J., concur.
    Copies mailed to:
    Amanda Yurechko
    -5-
    Ayo Ogunduyile
    Hon. Mary Katherine Huffman
    

Document Info

Docket Number: 27622

Citation Numbers: 2017 Ohio 9314

Judges: Hall

Filed Date: 12/29/2017

Precedential Status: Precedential

Modified Date: 12/29/2017