Consumer’s denial of credit card debt did not divest him of standing to sue under FDCPA

The plaintiff corporation filed a suit in the municipal court alleging that it was the assignee of the defendant’s bank credit card account and the defendant had breached his agreement with the bank by failing to pay the account as required.
 
The defendant filed an answer denying that he was a cardholder under the account in question. The defendant also asserted a counterclaim alleging violations of the Fair Debt Collection Practices Act (FDCPA) as well as negligence and invasion of privacy. The plaintiff filed a Civ.R. 12(B)(6) motion to dismiss the plaintiff’s counterclaims.
 
The defendant moved to transfer the case to the common pleas court, which then granted the plaintiff’s motion to dismiss his counterclaim on plaintiff’s theory that he was not a party since he denied the debt. The plaintiff then voluntarily dismissed its claims against the defendant without prejudice.
 
The appellate court concluded that the defendant was a party defendant as he was served with a summons on the complaint by certified mail at his residence address. Also, the defendant was a real party in interest with respect to his counterclaims, and therefore had standing to bring them. Further, the fact that the plaintiff had voluntarily dismissed its claims against the defendant did not divest the trial court of continued jurisdiction to hear the counterclaims.
 
The court also determined that the plaintiff had attempted to collect the bank account from the defendant through a dunning letter. Thus, the defendant fell squarely into the definition of a consumer under the FDCPA. Therefore, the trial court erred by dismissing the defendant’s counterclaims. Accordingly, the trial court’s judgment was reversed and the case was remanded.
 
Midland Funding, LLC v. Stowe, 2009-Ohio-7084.

Trial court had ample evidence to support finding that husband mortgaged his interest.

The defendant couple entered into a land contract for the purchase of property and received a survivorship deed for the property. To finance the purchase, the defendant wife obtained a note from a mortgage company, but due to the defendant husband’s financial and employment situation, he was not included on the note. The mortgage company indorsed the note and the mortgage to a bank which subsequently indorsed the note twice to the plaintiff company. After the defendant wife twice defaulted on the mortgage, the plaintiff filed a complaint for foreclosure and reformation of mortgage. Thereafter, the plaintiff filed an amended complaint seeking an equitable lien, a constructive trust and a resulting trust as to the defendant husband’s one-half interest in the property and sought reformation of the mortgage to fully secure his interest in the property. The defendant hospitals were added as defendants due to a judgment lien obtained by them against the defendant couple. The trial court ruled in the plaintiff’s favor. After the property was sold, the court confirmed the sale and ordered distribution of the proceeds of the sale to the appropriate parties. The appellate court determined that although the defendant husband was not listed as a Borrower/Mortgagor on the first page of the mortgage, paragraph 12 of the mortgage made it clear that a “Borrower” who signed the mortgage instrument, but did not execute the note, mortgaged his interest in the property without assuming liability for repayment of the debt. The defendant husband signed as a “Borrower.” Further, there was no mention in the mortgage about the release of dower rights, nor was there any provision that suggested that the defendant husband signed the mortgage for a purpose other than to mortgage his interest in this property. Thus, even if the mortgage was ambiguous, the trial court had ample evidence to support its conclusion that the defendant husband had mortgaged his interest in the property. Accordingly, the judgment was affirmed. SFJV 2005, LLC v. Ream, 2010-Ohio-1615.