Pleadings

The general rule is that an assignee of a claim when suing on the assigned chose in action or instrument must allege and prove the assignment of the claim sued upon.[i]  In order to recover on an assigned cause of action, the party must plead and prove that a cause of action capable of being assigned existed and was assigned to the party alleging the theory of assignment.[ii]  A written assignment is an essential part of a suit brought by an assignee and must be attached as an exhibit to the complaint.

Some statutes require that the assignee and bona fide owner of a non-negotiable chose in action may sue thereon in his own name. However, he/she shall allege in his or her complaint that he/she is the actual bona fide owner thereof and set forth when and how he/she acquired title.[iii]  An objection arguing that the plaintiff’s pleading fails to show a valid assignment and therefore does not state a cause of action is not waived by failure to demur.  However such an objection may be made at any stage of the proceeding.[iv]  The assignability of a cause of action and the right of an assignee to sue in his or her own name must be raised by demurrer to the complaint or by a plea in abatement.

[i] Tech. Renewal Corp. v. Houghton, 2001 Ohio App. LEXIS 1417 (Ohio Ct. App., Franklin County Mar. 27, 2001)

[ii] La Joya Gardens, L.L.C. v. Chubb Custom Ins. Co., 2007 U.S. Dist. LEXIS 36191 (N.D. Tex. May 17, 2007)

[iii] Butler v. Milton Coop. Dairy Corp., 112 Vt. 517, 518 (Vt. 1942)

[iv] Zwick & Zwick v. Suburban Constr. Co., 103 Ohio App. 83 (Ohio Ct. App., Cuyahoga County 1956)


Inside Pleadings