[Cite as Midland Funding, L.L.C. v. Hottenroth, 2014-Ohio-2390.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100146

MIDLAND FUNDING L.L.C.

PLAINTIFF-APPELLEE 

vs. 

DUSTIE HOTTENROTH 

N.K.A. DUSTIE MILLER

DEFENDANT-APPELLANT 

JUDGMENT: 

REVERSED IN PART, DISMISSED IN PART,

AND REMANDED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-729712 

BEFORE: S. Gallagher, P.J., E.A. Gallagher, J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: June 5, 2014 
ATTORNEYS FOR APPELLANT 

Robert S. Belovich 

9100 South Hills Blvd. 

Suite 300 

Broadview Heights, OH 44147 

Anand N. Misra 

The Misra Law Firm, L.L.C. 

3659 Green Road 

Suite 100 

Beachwood, OH 44122 

ATTORNEYS FOR APPELLEE

For Midland Funding, L.L.C.

Steven G. Janik 

Crystal Lynn Maluchnik 

Ellyn Mehendale 

Sean T. Needham 

Janik L.L.P. 

9200 South Hills Blvd. 

Suite 300 

Broadview Heights, OH 44147 

Sam A. Benson 

1100 Superior Avenue 

19th Floor 

Cleveland, OH 44114 

For Javitch, Block and Rathbone, L.L.C.

Robert G. Knirsch 

Mark Brncik 

James Oh 

Javitch, Block & Rathbone L.L.C. 

1100 Superior Avenue, 19th Floor 

Cleveland, OH 44114-1503
SEAN C. GALLAGHER, P.J.: 

{¶1} Counterclaim-plaintiff Dustie Miller, f.k.a. Dustie Hottenroth (“Miller”), 

appeals from the trial court’s decision granting summary judgment in favor of Midland 

Funding, L.L.C., and Javitch, Block, and Rathbone, L.L.P. (collectively “defendants”).1

 

For the following reasons, we reverse in part and dismiss in part and remand to the trial 

court for further proceedings. 

{¶2} The underlying facts are fairly straightforward. According to the exhibits in 

the record, especially those attached to Miller’s deposition that included a complete 

compilation of all billing records for account No. xxxx-xxxx-xxxx-9562, the credit limit 

on that account was exceeded sometime in April 2004. Between April 2004 and April 

2005, payments were continually posted to the account, but several times the account 

reflected a nominal amount past due, which was immediately paid. For example, as of 

the October 15–November 12, 2004 billing cycle, the statement reflects a total balance of 

$4,409.41, but that Miller owed $80 as an amount past due, $78 for the minimum 

payment for that billing cycle, and $409.41 for the amount she exceeded the credit limit. 

In fine print at the bottom of the document, Bank of America deemed the account 

“currently closed.” Miller tendered an $80 payment before the due date for that billing 

 1

 For the purposes of this appeal, we will refer to the plaintiff Midland 

Funding and counterclaim defendant Javitch, Block, and Rathbone, L.L.P., as 

“defendants” for ease of reference in consideration of their roles in the counterclaim 

advanced.
cycle. Thereafter, despite the account being deemed closed, Miller kept the account from 

accumulating an amount past due until sometime in April 2005; in other words, she never 

allowed a past-due amount to accrue for longer than 30 days. 

{¶3} No payment was tendered as of the April 12, 2005 due date, for that billing 

cycle, and the overdue balance grew. It was not until October 2005 that Bank of 

America first requested that Miller pay the entire balance owed as the minimum payment 

required, at that time being the sum of $4,180.84, pursuant to the default provision of the 

credit agreement. Thereafter, Bank of America sought the entire amount owed as the 

minimum monthly balance until October 26, 2006, when Bank of America charged off 

the remaining balance. 

{¶4} On that date, Bank of America charged off $5,050.43 from the 

xxxx-xxxx-xxxx-9562 account, representing the closing balance for that billing cycle. 

The apparent opening balance, denoted as the previous balance, on the November 2006 

billing statement for account No. xxxx-xxxx-xxxx-7342 was $5,064.50.2

 Relying on the 

defendants’ evidentiary submissions, including affidavits and depositions from the 

defendants’ representatives, the defendants claimed Miller’s account was a single 

account, only differing with respect to the account numbers as the charge-off balance was 

prepared for resale. 

 2

The only explanation for the discrepancy between the charge-off amount and 

the opening balance in the latter account number came at oral argument. The 

defendants claimed the $14.07 difference was due to interest accumulation, 

although the statements never reflected accumulated interest being added to the 

charge-off amount from the immediately preceding billing statement. 
{¶5} Ultimately, in January 2008, the xxxx-xxxx-xxxx-7342 account was again 

officially charged off and the $5,427.24 balance was transferred through a purchase 

agreement to Midland Funding. Midland Funding began pursuing debt collection actions 

culminating in the April 5, 2010 filing of the underlying claim against Miller, based on 

the xxxx-xxxx-xxxx-9562 account, seeking a judgment in the amount of $4,129.81. 

Midland Funding used a Euclid, Ohio, address for Miller for the purposes of serving 

Miller and establishing venue in Ohio. Miller disputed residing at that address at the 

commencement of the case, claiming to have moved there at the end of April 2010. 

{¶6} Miller answered the complaint and filed a counterclaim asserting on behalf of 

herself and other similarly situated persons, several claims against the defendants for 

violations of the Fair Debt Collection Practices Act (“FDCPA”) and Ohio’s Consumer 

Sales Practices Act (“OCSPA”). Succinctly stated, Miller claimed that the defendants 

violated the FDCPA and OCSPA by (1) commencing and maintaining a time-barred 

lawsuit; (2) concealing material information in the lawsuit; (3) making false 

representations in the lawsuit; (4) demanding interest and costs in the lawsuit; (4) causing 

the lawsuits to be reported to the credit bureaus; (5) filing lawsuits without conducting an 

adequate investigation of the debt; and (6) filing the lawsuit in a territory in which Miller 

did not reside. Miller also advanced common law tort claims of abuse of process, 

defamation, civil conspiracy, and fraud. 

{¶7} The trial court granted Midland Funding leave to amend the complaint, filed 

on August 13, 2010. Three days later, Midland Funding dismissed the complaint without 
prejudice, prior to the deadline to file an answer. Simultaneously, Midland Funding 

argued that the entire case should be dismissed because the amended complaint was 

dismissed prior to an amended answer, and according to Midland Funding, the 

counterclaim ceased to exist. The trial court dispensed with that argument, but upon 

summary judgment, condensed Miller’s claims into two basic causes of action based on 

the filing of a time-barred claim in a territory in which Miller did not reside. 

{¶8} The trial court determined that there were no genuine issues of material fact 

regarding the date that the cause of action accrued and where Miller lived on April 5, 

2010. The trial court determined that all of Miller’s claims failed as a matter of law 

because the 15-year statute of limitations, pursuant to the version of R.C. 2305.06 in 

effect at the time, applied to the facts of this case because the cause of action accrued in 

October 2004 when the account was closed. In so ruling, the trial court expressly relied 

on the statute of limitations prior to the April 7, 2005 enactment of the borrowing statute, 

R.C. 2305.03(B). Further, the trial court held that Miller lived at the Euclid, Ohio 

address on the date the action was commenced. Miller timely appealed from the trial 

court’s decision. 

{¶9} Despite starting from the deceptively simple origins of an action arising from 

a consumer debt, this case became unduly complicated, in part brought upon by the 

parties’ inability to accurately set forth the facts as presented in the documentary 

evidence. The crux of the issues before the trial court and upon this appeal focus on a 

statute of limitations issue and Miller’s place of residence on April 5, 2010. In this 
regard, precisely identifying the pertinent dates is paramount to the resolution of the 

claims. 

{¶10} Before addressing the merits of the appeal, we must address the procedural 

posture of this case. Miller’s counterclaim advanced claims on behalf of a putative 

class. In the midst of several discovery disputes, the trial court indefinitely stayed 

discovery on the class certification issue, and only allowed Miller to proceed with 

discovery on the merits of her individual claims. In granting the defendants’ motion for 

summary judgment, the trial court dismissed the counterclaim. On appeal, this court 

sought additional briefing on whether the dismissal of Miller’s individual counterclaims 

created a final appealable order in light of the fact that the order omitted any reference to 

disposing of the class action claims. Both parties filed supplemental briefs agreeing that 

the trial court’s summary judgment opinion disposed of all claims. 

{¶11} We are compelled to note, however, that the defendants’ claim that the class 

action allegations were mooted — by the fact that Miller failed to advance claims for 

class certification prior to the court’s resolution of her individual claims — is misplaced. 

The trial court’s intercession staying discovery absolved Miller of the responsibility of 

filing for class certification in order to preserve the putative class’s claims for appeal. 

See Hoban v. Natl. City Bank, 8th Dist. Cuyahoga No. 84321, 2004-Ohio-6115, ¶ 22 

(string citing authority stating that the “mootness doctrine” could not be invoked in 

situations where a plaintiff is prevented from seeking class certification). Nevertheless, 

the trial court’s June 25, 2013 order granting judgment in the defendants’ favor dismissed 
the entirety of Miller’s counterclaim, including any class action component. Miller never 

challenged this dismissal with respect to the class-wide allegations, and therefore, all 

claims were disposed of for the purposes of R.C. 2505.02. Further, Miller only appealed 

the trial court’s decision with respect to her individual claims, so we need not delve into 

the class action component of the counterclaim. 

{¶12} Turning to the merits of the claim, appellate review of summary judgment is 

de novo, governed by the standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio 

St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. 

Summary judgment may be granted only when (1) there is no genuine issue 

of material fact, (2) the moving party is entitled to judgment as a matter of 

law, and (3) viewing the evidence most strongly in favor of the nonmoving 

party, reasonable minds can come to but one conclusion and that conclusion 

is adverse to the nonmoving party. 

Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957, 991 N.E.2d 232, ¶ 7. A 

party requesting summary judgment bears the initial burden to show the basis of the 

motion. Dresher v. Burt, 75 Ohio St.3d 280, 293-294, 662 N.E.2d 264 (1996). Only 

when the moving party satisfies this burden of production is the opposing party’s 

reciprocal burden triggered, requiring introduction of evidence allowed under Civ.R. 

56(C) to demonstrate genuine issues of material fact. Id.

{¶13} In Miller’s first, second, third, fourth, and ninth assignments of error, she 

claims the trial court erred in granting summary judgment upon the counterclaim because 

of the existence of genuine issues of material fact. After thoroughly reviewing the 

record, we agree and hold that the trial court erred by applying the 15-year statute of 
limitations for a written contract pursuant to the pre-September 2012 version of R.C. 

2305.06, by determining that the defendants’ claims accrued in October 2004, in failing to 

apply the borrowing statute R.C. 2305.03(B) to the facts of this case, and by determining 

that no genuine issues of material fact existed with regard to Miller’s permanent residency 

as of April 5, 2010. 

{¶14} “A debt collector violates [15 U.S.C.] 1692e by, among other things, falsely 

representing ‘the character, amount, or legal status of any debt.’” Dudek v. Thomas & 

Thomas Attys. & Counselors at Law, LLC, 702 F.Supp.2d 826, 833 (N.D.Ohio 2010), 

citing 15 U.S.C. 1692e(2)(A). “‘Common sense dictates that whether a debt is 

time-barred is directly related to the legal status of that debt.’” Id., quoting Gervais v. 

Riddle & Assocs., P.C., 479 F.Supp.2d 270, 277 (D.Conn.2007). As a result, a debt 

collector violates the FDCPA in filing a legal action based on a time-barred debt. 

{¶15} The determination as to when the defendants’ claim accrued based on the 

alleged debt is of paramount concern to the resolution of the claims. Rather than 

addressing this issue, the trial court, admittedly upon the urging of the parties, accepted 

Miller’s statement, in her brief in opposition to summary judgment, that the defendants’ 

claim accrued in October 2004 when Bank of America deemed the account as being 

“currently closed.” The parties provided no authority for the proposition that the date of 

the closing of the account is the date the cause of action definitively accrued, and the 

affidavits attached in support of defendants’ respective motions for summary judgment 
are simply incorrect as compared to the billing statements, creating a genuine issue of 

material fact regarding when Midland Funding’s cause of action accrued. 

{¶16} In particular, in her February 15, 2011 affidavit, Melinda Stephenson 

claimed that Bank of America was owed the sum of $5,427.24 on October 15, 2005, but 

that the xxxx-xxxx-xxxx-7342 account was the same as the original 

xxxx-xxxx-xxxx-9562 account, despite the fact that the former did not exist until 

November 2006. According to those same records, the balance on account No. 

xxxx-xxxx-xxxx-9562 was $4,180.84 as of the October 2005 statement, and the amount 

actually charged off on October 26, 2006, was $5,050.43. It was not until January 2008 

that Bank of America sold the xxxx-xxxx-xxxx-7342 account, then totaling $5,427.24, to 

Midland Funding. Likewise, according to Joel Rathbone’s affidavit, the law firm used 

Midland Funding’s date of October 15, 2005, as the date the xxxx-xxxx-xxxx-9562 

account was charged off and transferred to the xxxx-xxxx-xxxx-7342 account number. 

He further stated that the only discrepancy in their records was the account numbers used 

to identify the single account, although the charge-off amount from the original account 

number did not match the opening balance of the later one. 

{¶17} While the exact accrual date is beyond the scope of this appeal, the bookend 

dates are determinable as a matter of law. The accrual date for a credit card debt has 

largely been unsettled, “in part because courts have not consistently categorized credit 

card accounts.” Jarvis v. First Resolution Invest. Corp., 9th Dist. Summit No. 26042, 

2012-Ohio-5653, ¶ 33. In recognition of the unsettled law, the Ninth District held that 
credit card accounts are open accounts based on the legislature’s definition of account to 

include “a right to payment of a monetary obligation, whether or not earned by 

performance, arising out of the use of a credit or charge card.” Id., citing R.C. 

1309.102(A)(2)(a). According to the common law definition, an open account is an 

“account with a balance which has not been ascertained and is kept open in anticipation 

of future transactions.” Id. at ¶ 34, citing Smither v. Asset Acceptance, L.L.C., 919 

N.E.2d 1153, 1159 (Ind.App.2010). An account remains open until “one of the parties 

wishes to settle and close the account, and where there is but one single and indivisible 

liability arising from the such series of related and reciprocal debits and credits.” Id. 

Thus, an account remains open until both settled to a single liability and closed by one of 

the parties. 

{¶18} In light of the evidentiary submissions by defendants in prosecuting their 

respective motions for summary judgment, it is undisputed that any claim for the 

xxxx-xxxx-xxxx-9562 account number accrued after April 7, 2005, the effective date of 

the borrowing statute. In this regard, the court erred as a matter of law by failing to 

apply the borrowing statute to the claims in this case. According to the April 2005 

billing statement, the xxxx-xxxx-xxxx-9562 account was past due. Prior to that billing 

statement, there were sporadic billing cycles reflecting a balance past due. The 

delinquency was remedied until April 12, 2005. That payment was never tendered, and 

thus Miller could not have defaulted until April 12, 2005. Also, because Miller 

continued to make payments, the fact that Bank of America deemed the account 
“currently closed” is of no consequence for the purposes of this case. The account was 

not settled to a single liability until October 2005 when Bank of America both closed the 

account and sought the entire amount owed as a lump-sum payment, as a consequence to 

Miller’s default. Jarvis at ¶ 34. 

{¶19} April 12, 2005, is the earliest the cause of action could have accrued, seven 

days after the enactment of the borrowing statute. Midland Funding conceded as much 

in its motions for summary judgment, identifying the April 2005 billing statement as the 

date that Miller finally defaulted on her obligation by failing to remit a payment for the 

amount she owed that was past due. The Rathbone affidavit attached to Javitch’s motion 

for summary judgment indicated that the charge-off date was the appropriate date for the 

purposes of resolving the statute of limitations issues. Thus, the undisputed evidence 

demonstrated that the earliest accrual date of Midland Funding’s purchased claim against 

Miller was April 12, 2005. The trial court erred in determining an earlier date and by not 

applying the borrowing statute to the facts of the current claim. 

{¶20} Defendants also claim that the shortest statute of limitations that could 

possibly be applicable is a three-year term and that Miller made sporadic payments to the 

xxxx-xxxx-xxxx-9562 and xxxx-xxxx-xxxx-7342 account numbers until April 16, 2007, 

thereby prolonging the accrual date for their claim against Miller until April 16, 2010. 

Typically, the making of a partial payment on an open account before the statute of 

limitations expires extends the implied promise to pay the balance owed amount, acting to 
renew the statute of limitations period. Himelfarb v. Am. Express Co., 301 Md. 698, 

705, 484 A.2d 1013 (1984). 

{¶21} Even if those payments did act to extend the statute of limitations, although 

a payment was posted in the xxxx-xxxx-xxxx-7342 account on April 16, 2007, that 

payment was rejected by Bank of America on May 2, 2007. The last actual payment 

accepted by the creditor was posted on March 15, 2007. Generally, in order 

[t]o interrupt the running of the statute of limitations, the part payment must 

be the debtor’s voluntary act * * *. A “voluntary payment” for this purpose 

is one that is intentionally and consciously made and accepted as part 

payment of the particular debt in question, under such circumstances as 

would warrant a clear inference that the debtor assents to and acknowledges 

that a greater debt is due as an existing liability. 

(Emphasis added.) 51 American Jurisprudence 2d, Limitation of Actions, Section 328 

(2014); see also Martin v. Brown, 716 N.E.2d 1030, 1034 (Ind.App.1999). Under the 

defendants’ theory, therefore, the claim accrued at the latest on March 15, 2007, the date 

of the last accepted payment. 

{¶22} In short, sometime between April 12, 2005 and March 15, 2007, lies the 

accrual date of the claim for the purposes of determining whether the April 5, 2010 

complaint was timely. It is undisputed, therefore, that the borrowing statute applied and 

the trial court erred by applying Ohio’s statute of limitations without consideration of 

R.C. 2305.03(B). Accordingly we must remand for resolution of the implications of 

R.C. 2305.03(B). See Jarvis, 9th Dist. Summit No. 26042, 2012-Ohio-5653. 

{¶23} Finally, there remains a genuine issue of material fact as to whether Miller 

lived in Euclid, Ohio, on April 5, 2010. 15 U.S.C. 1692i provides that a debt collector 
shall file an action only in the judicial district in which the consumer signed the contract 

or in which the consumer resides at the commencement of the action. 

The term “reside” has a commonly accepted meaning. Dictionaries define 

“reside” as “to live in a place for a permanent or extended time,” Webster’s 

II New College Dictionary 943 (2001), or to “live, dwell . . . to have a 

settled abode for a time . . . .” Black’s Law Dictionary (5th ed. 1979). An 

ordinary person would understand that a person resides where the person 

regularly lives or has a home as opposed to where the person might visit or 

vacation. 

United States v. Namey, 364 F.3d 843, 845 (6th Cir.2004); Nationwide Property Cas. Ins. 

Co. v. Kavanaugh, 2d Dist. Montgomery No. 25747, 2013-Ohio-4730, ¶ 33. 

{¶24} Defendants argue that Miller resided in Euclid, Ohio, and Ripley, West 

Virginia, on the date they commenced the underlying case against her. Miller disputes 

that and presented evidence that she moved to Euclid at the end of April 2010, including a 

United States Postal Service permanent change of address form, bank statements 

demonstrating purchases being made primarily in West Virginia during April 2010, and 

her own deposition testimony. 

{¶25} In its motion for summary judgment, Javitch solely relied on the fact that 

Miller’s bank or credit card accounts indicated transactions occurring in Ohio around the 

time the lawsuit was filed and that a bank form indicated Miller used the Euclid, Ohio 

address. Midland Funding relied on the fact that Miller moved to the address sometime 

after the lawsuit was filed. Neither argument satisfies the defendants’ burden to 

demonstrate the lack of genuine issues of material fact for the purposes of summary 

judgment. Javitch’s evidence is open to interpretation and is contradicted by Miller’s 
deposition testimony stating the bank account was opened before she moved out of Ohio 

and got married. Simply making purchases in Ohio is insufficient to establish residency 

in light of the undisputed fact that Miller’s family, whom she may have been visiting, 

lived in Ohio. Further, Midland Funding’s argument fails to address the issue of where 

Miller resided at the commencement of the lawsuit. The trial court accepted the 

defendants’ arguments without consideration of the evidence presented in response. As a 

result, based on the evidence considered in a light most favorable to the nonmoving party, 

there is an issue of fact regarding whether Miller resided in Euclid, Ohio, at the 

commencement of the lawsuit. 

{¶26} Accordingly, Miller’s first, second, third, fourth, and ninth assignments of 

error are sustained. The trial court erred in failing to consider the implications of R.C. 

2305.03(B), and genuine issues of material fact exist with respect to Miller’s residence at 

the commencement of Midland Funding’s now dismissed action. We must reverse the 

trial court’s decision granting summary judgment upon Miller’s individual claims.3

 

{¶27} Finally, in Miller’s sixth and seventh assignments of error, she claims the 

trial court erred by dismissing two other defendants and denying a motion for sanctions 

against a third defendant. The relevant decisions, however, were interlocutory in nature. 

 Miller failed to include a copy of each judgment in her notice of appeal as required by 

 3

Our resolution of these assignments of error moot Miller’s eighth assignment 

of error, in which she claims the trial court erred by failing to strike Stephenson’s 

affidavit originally included for the purposes of resolving the motions for summary 

judgment.
App.R. 3(D) and Loc.App.R. 3(B). As this court has previously noted, the purpose of a 

notice of appeal is to notify appellees of the appeal and advise them of the scope of the 

appeal. Parks v. Baltimore & Ohio RR., 77 Ohio App.3d 426, 427, 602 N.E.2d 674 (8th 

Dist.1991), citing Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio St.2d 257, 

258-259, 436 N.E.2d 1034 (1982). Absent the requisite notice, this court lacks 

jurisdiction. Id. The three defendants with interests in the outcome of the last two 

assignments of error were never put on notice of Miller’s intent to appeal the trial court’s 

decision. We, therefore, lack jurisdiction over Miller’s sixth and seventh assignments of 

error. 

{¶28} The decision of the trial court is reversed in part and dismissed in part, and 

the case is remanded for further proceedings. 

It is ordered that appellant and appellees share the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

SEAN C. GALLAGHER, PRESIDING JUDGE 

EILEEN A. GALLAGHER, J., and 

EILEEN T. GALLAGHER, J., CONCUR 

KEY WORDS: 

Appeal No. 100146 Midland Funding LLC v. Dustie Hottenroth n.k.a. (Miller) 
Civ.R. 56; FDCPA; OCSPA; summary judgment; issues of fact. The trial court erred in 

granting summary judgment because, when considering the evidence in a light most 

favorable to the nonmoving party, there were genuine issues of material fact regarding the 

counterclaim plaintiff’s claims.