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(octaneA-FILEOCQURT OF COMMON PLEASWWR # 2081522015 JUL -7 AM 8: 4aIN THE COURT OF COMMON PLEASGMONTGOMERY COUNTY, OHIOWHEE EOa MEF .» 15PNC BANK, N.A. CASE 2015 EX 63897JUDGEPlaintiffVS.LINDA D. BRADFIELD, AKA MOTION TO SHOW CAUSE (WITHREQUEST FOR ATTORNEY’S FEESAND SANCTIONS)we Se ee EeDefendantNOW COMES the Plaintiff, PNC Bank, N.A., by and through its counsel, Weltman,Weinberg & Reis Co., L.P.A., and hereby moves this Honorable Court, pursuant to Ohio CivilRule 37(D), for an Order upon Linda D. Bradfield, aka Linda D. Nalls to appear and show causewhy she should not be held in contempt of this Court for failure to appear for the debtor’s exam.Defendant, Linda D, Bradfield, aka Linda D. Nalls, failed to appear, in Court, for the Debtor’sExam scheduled on June 5, 2015 at 1:30 p.m. The basis for this Motion is more fully set forth inthe Brief and Affidavit attached hereto and made a pg¢f hereof.WE} wp, G & REIS CO., L.P.A.ANDREW €-7OORHEES #0077955AttOmey for PlaintiffLakeside Place, Suite 200323 W. Lakeside AvenueCleveland, OH 44113Phone: (216) 685-1050Fax: (216) 363-4033E-mail: avoorhees@weltman.comBRIEF IN SUPPORTL STATEMENT OF FACTSOn or about April 29, 2015, the Plaintiff, PNC Bank, N.A., obtained a Judgment againstthe Defendant, Linda D. Bradfield, aka Linda D. Nalls, in the Montgomery County CommonPleas Court under Case No. 2015 CV 00227, entitled “PNC Bank, N.A. vs. Linda D. Bradfield,aka,” for $49,521.37, plus interest and costs. On May 15, 2015, counsel for Plaintiff filed withthe Court an Order in Aid of Execution Examination before Judge on the above Judgmentbalance, a copy of which was mailed to the Defendant, Linda D. Bradfield, aka Linda D. Nalls,by the Court. Defendant, Linda D. Bradfield, aka Linda D. Nalls, was to appear on June 5, 2015at 1:30 p.m. in Court for this Debtor’s Examination. A copy of Debtor’s Examination is attachedhereto and incorporated herein as Exhibit “1”. Defendant, Linda D. Bradfield, aka Linda D.Nalls, did not appear for the Debtor’s Exam, nor did she contact counsel for the Plaintiff bytelephone or via correspondence in order to explain her failure to appear or reschedule theDebtor’s Examination. See Affidavit attached hereto and incorporated as if fully rewrittenherein.Defendant, Linda D. Bradfield, aka Linda D. Nalls, failed to appear and is now inviolation of this Court’s prior Order.IL. LAW AND ARGUMENT(a) SanctionsRule 37(D) of the Ohio Rules of Civil Procedure provides, in pertinent part, that:If a party .. . or a person designated under . . . Rule 31(A) totestify on behalf of a party fails (1) to appear before the officerwho is to take his deposition, after being served with a propernotice, . . . the court in which the action is pending on motionand notice may make such orders in regard to the failure as arejust, and among others it may take any action authorized undersubsections (a), (b) and (c) of subdivision (B)(2) of this rule.In lieu of any order or in addition thereto, the court shallrequire the party failing to act or the attorney advising him orboth to pay the reasonable expenses, including attorney's fees,caused by the failure, unless the court expressly finds that thefailure was substantially justified or that other circ*mstancesmake an award of expenses unjust.The failure to act described in this subdivision may not beexcused on the ground that the discovery sought isobjectionable unless the party failing to act has applied for aprotective order as provided by Rule 26(C). (Emphasis added)As the Court aptly stated in Midwest Sportservice, Inc. v. Andreoli, 3 Ohio App.3d 242,244 (Ct. App. Hamilton Co., 1981):If the scheduled time and place are inconvenient or present unreasonableburdens on the party to be deposed, or should the party have any otherobjections to the taking of his deposition, his remedy is to obtain a protectiveorder under Ciy. R. 26(C). [footnote omitted] Where a party fails to do so, hemay be subjected to any of the sanctions appropriate under Civ. R. 37(D).Ward_v. Hester (1972), 32 Ohio App.2d 121 [62 0.0.2d 124]. See,generally, Case Notes, Civil Procedure - Which Party Must Travel -- Costs --Protective Orders and the Requirement of Good Cause, 33 Ohio St. L.J. 246(Emphasis added).Accord, Dafco v. Reynolds, 9 Ohio App.3d at 5-6; E.I. DuPont de Nemours v. Thompson, 29Ohio App.3d 272, 276 (Ct. App., Cuyahoga Co., 1986)McCarthy v. Dunfee, 19 Ohio App.3d 68, 69 (Ct. App. Lorain Co., 1984).Accordingly, this Court should issue an Order upon the Defendant, Linda D. Bradfield,aka Linda D. Nalls, to appear and show cause why she should not be heid in contempt of court,and should order Linda D. Bradfield, aka Linda D. Nails to appear for her Debtor’s Exam.Additionally, this Court should impose sanctions upon Linda D. Bradfield, aka Linda D. Nallsand award attorney’s fees to the Plaintiff in light of Linda D. Bradfield, aka Linda D. Nalls’unconscionable conduct.The Motion to Show Cause is clearly appropriate considering the unjustifiable conduct ofthe Defendant, Linda D. Bradfield, aka Linda D. Nalls.vIll. CONCLUSIONFor the above reasons, this Court should grant Plaintiff's Motion to Show Cause and issuean Order upon the Defendant, Linda D. Bradfield, aka Linda D. Nalls, to appear and show causewhy she should not be held in contempt of court. In addition, Plaintiff is requesting sanctions inthe form of the relevant expenses and attorney's fees in an amount to be determined by the Courtat the time of the Hearing as a result of the Defendant's failure to submit to discovery. Plaintifffurther prays for any additional Orders deemed by this Court as just in view of the unjustifiableconduct of Linda D. Bradfield, aka Linda D. Nalls. INBERG & REIS CO., L.P.A. ANDREW. IRHEES #0077955lomney for PlaintiffLakeside Place, Suite 200323 W. Lakeside AvenueCleveland, OH 44113Phone: -685-1050Fax: (216) 363-4033E-mail: avoorhees@weltman.comCERTIFICATE OF SERVICEA copy of the foregoing Motion to Show Cause (With Request For Attorney’s Fees andSanctions) was mailed this th day of June 2015, by regular U.S. Mail, to the Defendant,Linda D. Bradfield, aka Linda D. Nalls, at 45 N. Trenton Street, Dayton, Ohio 45417,WELTMAN, ERG & REIS CO., L.P.A. Lakeside Place, Suite 200323 W. Lakeside AvenueCleveland, OH 44113Phone: -685-1050Fax: (216) 363-4033E-mail: avoorhees@weltman.comWWR #20815220Common Pleas Court, Me WeurasIS MAYS ABI: 38 )aici,PNC Bank, NA, _ G11.% OF COUNT ) No. 2015 CV 00227Plaintiff + MONTGSHERY )449* £X¢3297) Proceedings in Aid of Execution) ORDER FOR EXAMINATIONLinda D. Bradfield, akaDefendant }It appearing to the Court, by the Affidavit of Andrew C. Voorhees, Attorney for the Plaintiff, that theDefendant, Linda D. Bradfield, aka Linda D. Nalls, in this action, and that said Defendant has property in herhands which she unjustly refuses to apply toward the satisfaction of said Judgment.eIt is therefore ordered that the said Defendant, Linda D. Bradfield, aka Linda D. Nails, is to appear beforethe Honorable Judge, O'Connell, of said Court at his office in Dayton, Ohio on then) = 5 29m day of‘2015 at LZ am JER to answer, under oath, concerning the property of saidJudgment debtor; and in the meantime, said Defendant, Linda D. Bradfield, aka Linda D. Nalls, and all otherpersons are forbidden to transfer or dispose of the property of said Defendant, Linda D. Bradfield, aka Linda D,LY ascy Mt. Mf foJUDGE O'C% LLNalls, or in any manner interfere therewith.EXHIBITWWR #20815220STATE OF OHIO )) SS: AFFIDAVITCOUNTY OF CUYAHOGA _)Andrew C. Voorhees, being first duly sworn according to law, deposes and states that heis the attorney for the Plaintiff in the within action.AFFIANT STATES that on or about April 29, 2015, a Judgment was rendered against theDefendant, Linda D. Bradfield, aka Linda D. Nalls, in the Montgomery County Common PleasCourt under Case No. 2015 CV 02277, in the amount of $49,521.37, plus interest and costs.AFFIANT FURTHER STATES that a Debtor’s Exam was schedule for Linda D.Bradfield, aka Linda D. Nalls to appear for the taking of her deposition on June 5, 2015, at 1:30p.m. On June 5, 2015, the Defendant failed to appear for the taking of her duly noticed Debtor’sExam, nor did she contact counsel for the Plaintiff by telephone or via correspondence in orderto explain her failure to appear or reschedule the Debtor’s examination.AFFIANT FURTHER STATES that notice was sent to the Defendant, Linda D.Bradfield, aka Linda D. Nalls, by the Court advising that the Debtor’s Exam was set for June 5,2015, at 1:30 p.m. The Defendant failed to appear and is now in violation of this Court’s priorOrder.AFFIANT FURTHER SAYETH NAUGHT.ANDREW C. VOORHEES #0077955SWORN TO BEFORE ME and subscribed in my presence this (24 day of June2015.NOTARY PUBLI!JACLYNNE M, FOXHALLNotary Public, State of OhioMy Commission ExpiresMay 21, 2019
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