IN THE FAIRFIELD CONTY COMMON PLEAS COURT LANCASTER, OHIO ORUM STAIR, LLC Plaintiff vs. PAULA E.

BERRY, et al. Defendants : : : : : : : : :

CASE NO. 13 CV 033 JUDGE MARTIN

MOTION OF DEFENDANT PAULA E. BERRY FOR A MORE DEFINITE STATEMENT Now comes Defendant, Paula E. Berry by and through counsel, and pursuant to Ohio Rule of Civil Procedure 12(E) hereby moves this Honorable Court to order Plaintiffs to provide a more definite statement, as follows: Complaint Paragraph No. 9. 10. Content of More Definite Statement Needed:

Identification of the specific paragraph in Exhibit A with the allegations contained within this paragraph. Identification and attachment of documents showing Plaintiff did in fact list and advertise the property in accordance with the Listing Agreement. Identification and attachment of any written instruments on which this allegation is based, as per Civil Rule 10(D)(1), or explanation of its omission as required in Civil Rule 10(D)(1), if Plaintiffs are unable to attach same. Identification and attachment of any written instruments on which this allegation is based, as per

16.

26.

Complaint Paragraph No.

Content of More Definite Statement Needed:

Civil Rule 10(D)(1), or explanation of its omission as required in Civil Rule 10(D)(1), if Plaintiffs are unable to attach same. Plaintiff claims it would have made $15,810.90 in commissions, yet claims to be damaged in excess of $25,000.00. 29. Documentation of amount of time spent on the Property, and a list of offers and potential buyers or lessees. Identification and attachment of any written instruments on which this allegation is based, as per Civil Rule 10(D)(1), or explanation of its omission as required in Civil Rule 10(D)(1), if Plaintiffs are unable to attach same. Plaintiff claims it would have made $15,810.90 in commissions, yet claims to be damaged in excess of $25,000.00. Copy of the alleged notice sent to Defendant and attachment of proof of receipt by Defendant of said notice. Identification and attachment of any written instruments on which this allegation is based, as per Civil Rule 10(D)(1), or explanation of its omission as required in Civil Rule 10(D)(1), if Plaintiffs are unable to attach same.

32.

5.

6.

This case involves an alleged debt stemming from an alleged US Bank credit card, that Plaintiffs allege they have been assigned for valuable consideration. However, Plaintiffs fail to attach any

documents showing the existence of such an account at US Bank, the history of the account, nor any documents that show any assignment

of an account from US Bank to the Plaintiff, directly or through intermediaries. Civ.R. 10(D) provides, in relevant part: HN5 "When any claim *** is founded on an account or other written instrument, a copy thereof must be attached to the pleading. If not so attached, the reason for the omission must be stated in the pleading." [482] In Point Rental Co. v. Posani (1976), 52 Ohio App.2d 183, 368 N.E.2d 1267, the Tenth District Court of Appeals stated: "The proper procedure in attacking the failure of a plaintiff to attach a copy of a written instrument or to state a valid reason for his failure to attach same is to serve a motion for a definite statement, pursuant to Civ. R. 12(E). Plaintiff has made allegations in its complaint based upon written instruments and failed to attach, or give a reason for its failure to attach the documents. As a result Defendant has properly filed its Motion for a More Definite Statement. Plaintiff should be required to amend its complaint and rectify its pleading deficiencies or state a valid reason for the failure to attach same within 14 days. In the event a party fails to obey the order of the court, the court may strike the pleading to which the motion was directed, or make any other orders as it deems just, which would include involuntary dismissal with prejudice pursuant to Civ.R. 41(B)

(1)." Id. at 186; see, also, Clerac, Inc. v. Shiekh (May 14, 1998), Cuyahoga App. No. 72731, 1998 Ohio App. LEXIS 2155. WHEREFORE, it is respectfully requested that a ruling by the Court under Civil Rule 12(E), requiring the Plaintiffs to plead more specifically on the matters listed above including by complying with Civil Rule 10(D)(1) is appropriate within fourteen (14 days) , and the Defendants do hereby request the same. Respectfully Submitted,

__________________ __________________ Michael J. OReilly (0019892) OREILLY LAW OFFICES 30 Hill Road South, Suite B Pickerington, Ohio 43147 Phone: 614-833-3777 Fax: (866) 257-8939 E-mail: oreillylawohio@yahoo.com Attorney for Defendants, Michael L. Fisher and Mary H. Fisher CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served via U.S. Mail on this 6 th day of November, 2012, on the following parties: Sean M. Winters Javitch, Block & Rathbone, LLC 1100 Superior Avenue, 19th Floor Cleveland, Ohio 44114-2518 Attorneys for Plaintiff 4

____________________________ Michael J. OReilly (0019892) OREILLY LAW OFFICES 30 Hill Road South, Suite B Pickerington, Ohio 43147 Phone: 614-833-3777 Fax: (866) 257-8939 E-mail: oreillylawohio@yahoo.com Attorney for Defendants, Michael L. Fisher and Mary H. Fisher