*1 Exr., Appellee, Taylor, Resolution Investment First
Corporation Appellants. al., et
It this court because that consumer violations of the federal reaches (“FDCPA”), 1692 et and the Ohio seq., Practices Act 15 U.S.C. Debt Collection (“OCSPA”), et the entities seq., Practices Act R.C. 1345.01 Consumer Sales Today, on it. suing her debt and were involved her collect purchased and the application issues relevant to the of the FDCPA we determine several in Ohio. We hold that the purchased to the collection of credit-card debt OCSPA card in this case accrued cause of action for default on the credit underlying Delaware, state of the bank that issued the credit card and where the home made, that Delaware’s statute of limitations— payments consumer’s were whether the collection borrowing of Ohio’s statute —determines through operation a time-barred collection filing further hold that the timely action was filed. We and the OCSPA. of a violation under both the FDCPA action form the basis claims under the FDCPA bring that that a consumer can actionable We also hold to courts in representations collectors’ made upon and the OCSPA based claim for interest that is unavailable on a debt collector’s legal filings, specifically buyers collecting hold that debt Finally, collector law. we to the debt subject are to the OCSPA. attorneys credit-card debt and their BACKGROUND Using Courts to Collect Purchased Debt *2 questions presented to us from phenomenon arise the now common sales, of debt in which a an creditor sells individual’s to a private entity debt attempts then to collect the debt. The sale of debt can provide grease for the wheels of commerce. “Debt can buying reduce the losses that creditors incur in credit, providing thereby creditors to allowing provide more credit at lower Commission, Federal Trade prices.” The Structure and Practices (Jan.2013) i, Buying Industry Debt available at http://www.fte.gov/sites/default/ files/documents/reports/structure-and-practices-debt-buying-industry/debtbuying (accessed 2016) (“Structure Practices”). report.pdf Mar. Private debt employ collectors often the court process collect the debt that they have thus, purchased, and courts have become vital cogs machinery of debt lawsuit, lawsuit, collection. a The threat of a filed a judgment can abe powerful, intimidating force a consumer.
A Problematic Process First-party debts are debts owed a consumer to an entity that initially Note, extended credit to the consumer. Improving Abusive Debt Relief from Practices, (2014), Collection Harv.L.Rev. fn. 1. aWhen consumer falls in debt, paying arrears on a “first-party creditors frequently charge off the debt (that is, unrecoverable) accоunt for the being debt as and sell the rights delinquent debt to buyers debt and collection agencies who specialize Id., collection of delinquent debts.” citing Consumer Financial Protection Bu- reau, Fair Debt Collection Practices Act: CFPB Annual Report at 8-9 (2013). Those debts are then “bundled” portfolios, into which purchased by are buyers debt a through bidding process, usually discount steep from the face value of the Improving debts. at 1448. Relief During the process, debt-sale documentation of information about the
debt is often lost. Debt buyers debt, receive some information about the but portfolios, most buyers “[f]or did not receive any documents at the time of purchase” “[o]nly a small percentage documents, of portfolios included such as account statements or the terms and conditions of credit.” Structure and Practices at iii. “Even when [account are available buyers documents] and debt them, request require banks often additional payments to supply them. Such demands can prove prohibitively expensive or encourage debt to gather collectors detailed only Horwitz, evidence in sporadic cases.” Banks Face Back- Official Practices, (Jan. lash Against 2013) Card Debt Collection American Banker available at http://www.americanbanker.com/issues/178_12/banks-face-official- (accessed backlash-against-card-debUcollection-practices-1055929-l.html?pg=2 2016). Mar. they to court with the information have. As go Debt collectors value, of face average per debt for an of four cents dollar
industry buys collection, nature, ii, very its is and Practices at consumer-debt Structure acquiescence, It on the enterprise. dependent large part is high-volume ambivalence, or of consumers: ignorance high-volume on a industry premised
The consumer debt collection of debts with a low ratio buyers holding portfolios model. Debt business to face value seek to collect on a sufficient number debts of book value collection efforts as well as lawsuits. generate profit, through direct volume of many buyers using high evidence shows Empirical *3 strategy rely heavily of their on the component recovery lawsuits as case; to contest the this up that consumers often fail to show assumption several reasons for such a may is valid. There assumption largely related to respond. may failure to Some of these reasons themselves be (mistak- notice, violations, may stem from a including defective FDCPA en) being if the debt sued response required consumer belief that no may respond consumers not actually simply, many not hers. Most upon is to avoid legal procedures required misunderstanding due to a addition, rely assumption on the some debt collectors default. whereby approach, has called a “scattershot” pursue default to what been but securing judgments, default they many hope file lawsuits with the actually opposing parties them should the litigate without the intent to respond.
(Footnotes omitted.) 127 Harv.L.Rev. at 1449. Improving Relief, volume of lawsuits based buyers filing high A result of debt predictable right filed after the regularly information is that lawsuits are imperfect on owed; a debt that is not “each has or that seek to collect expired collect debts million that consumers asserted to collect about one debts year, buyers sought at iv. not owe.” Structure and Practices they did
Statutory Protections The FDCPA protections against case play provide Federal and state statutes this to address ‘what passed the FDCPA “Congress
such debt-collection abuses.
at the hands of debt
of consumer abuse
widespread problem’
considered to be
(6th
Assocs., P.C.,
710, 712-713
780 F.3d
collectors.”
v. Zwicker &
Wise
(6th Cir.1992).
Cir.2015),
quoting Frey
Gangwish,
F.2d
intent of the FDCPA is to “eliminate abusive debt collection
practices”
have
loss,
job
contributed to personal bankruptcies,
and invasions of individual privacy.
1692(a)
(e);
Carlisle, McNellie, Rini,
Ulrich,
15 U.S.C.
Jerman v.
Kramer &
L.P.A.,
(2010).
559 U.S.
130 S.Ct.
broad scope “the conduct is through eyes viewed of the ‘least ” sophisticated consumer.’ Currier v. First Corp., Resolution Invest. 762 F.3d (6th Cir.2014). standard, That while protecting gullible “the and the shrewd alike,” also “a presumes basic level of reasonableness and understanding part of the debtor.” Id. A plaintiff must prove four essential elements to prima establish a facie
case for a violation of the FDCPA:
1. plaintiff is a natural who person by [T]he is harmed violations of the FDCPA, or is a “consumer” within the of 15 meaning U.S.C.A. 1692(d) 1692a(3), §§ action, for of a purposes § cause of 15 U.S.C.A. 1692c 1692e(11); § or 15 U.S.C.A.
2. [T]he “debt” arises out of a transaction primarily entered personal, family, 1692a(5); § or household purposes, 15 U.S.C.A.
3. collecting [T]he defendant the debt is a “debt collector” within the 1692a(6); meaning § of 15 U.S.C.A.
4. violated, omission, defendant [T]he has act or a provision FDCPA, 1692a-1692о; 1692a; § 15 U.S.C.A. § 15 U.S.C.A. 15 U.S.C.A. § 1692k. Co.,
Whittiker v. 914, Deutsche Bank Natl. Trust F.Supp.2d 605 938-939 (N.D.Ohio 2009). “The absence of any one the four essential elements is fatal to a FDCPA lawsuit.” Id. at 939.
631 actual that he or she suffered A not need to demonstrate plaintiff does 10} {¶ claim; the risk of “places on an FDCPA the FDCPA prevail in order to damages entirely in activities which are not engages collector that on the debt penalties debt-collector behavior with- lawful, than consumers to unlawful exposing rather L.L.C., Assocs., 770 Recovery v. for relief.” Stratton possibility out a Portfolio (6th Cir.2014). Further, characterized the FDCPA as 443, courts have 449 F.3d Lamar, 503 F.3d statute, Mtge. Corp. Loan v. strict-liability Fed. Home (6th Cir.2007); prove does not have liability, plaintiff to establish 513 Wise, collector, 780 F.3d 713. or intent of the debt knowledge The FDCPA excludes liable under the FDCPA? potentially Who is collection, reaches broadly in but the statute engaged creditors debt first-party collectors,” term that covers third- statutory an inclusive the actions of “debt in debt-collection attorneys regularly- engage as well as who debt collectors party 15 activities, owed consumers. See U.S.C. including litigation collect debts Jenkins, 291, 293-294, 297-299, 131 1692a(6); 115 S.Ct. 514 U.S. Heintz (1995). fact, conducting “to the of law firms response explosion L.Ed.2d 395 businesses,” prior version Congress specifically repealed debt collection from the statute’s reach. attorneys exemption afforded of the FDCPA had (8th Cir.2012); Kramer, P.A., see 674 F.3d v. Messerli & Hemmingsen (9th L.L.C., Johnson, 637 F.3d Rodenburg Lauinger, & McCollough v. Cir.2011).
The OCSPA provides protections the OCSPA also opinion, As we hold later this attorneys. The act states collectors and their for consumer debtors deceptive practice unfair or act shall commit an supplier that “[n]o 1345.02(A). 1345.03(A) R.C. a consumer transaction.” R.C. connection with act or practice an unconscionable supplier shall commit provides “[n]o have and federal courts Ohio transaction.” State connection with consumer See, activities. litigation to debt collectors and applies held that the OCSPA (S.D.Ohio 2004), Acceptance Corp., Hartman v. Asset e.g., today. those validity precedents confirm the and cases cited therein. We AND HISTORY FACTUAL PROCEDURAL used it to make a credit card and Taylor Jarvis1 obtained Sandra J. *5 scheduled eventually unable to make but she was years, over several purchases court, during appeal she died its Taylor original appellee in to this but 1. Jarvis was estate, appellee. her as the Taylor, been substituted for pendency. Brian the executor of her has account, minimum payments on the and the account delinquent. was declared Taylor Jarvis’s debt was purchased eventually and resold and became owned (“FRIC”), First Resolution appellant Corporation subsidiary Investment aof corporation, Canadian appellant Management Corporation First Resolution (“FRMC”). had incomplete FRIC documentation of the terms of the credit-card agreement. Despite centrality agreement of the credit-card to the parties’ it, in this no positions litigation, party produce has been able to and it is not in the record before us. proceeded many The case before us like others. appellants FRIC hired Offices, L.L.C., “Cheek”)
Cheek Law and Parri Hockenberry, Esq. (collectively file a lawsuit to collect on the debt. a complaint Cheek filed on March and filed a motion for default judgment less than two months later. Within a motion, week of the of that filing signed entry FRIC had from trial judge it granting a default it judgment, awarding everything that it had asked for. clockwork, Like this case started out as a typical case the world of buying. But Taylor Jarvis was different from most defendants who are sued way. this She found out about the judgment against her and fight decided to it. Six weeks after entry of the default judgment, successfully she moved to it, vacate and she later raised counterclaims and By doing FRIC Cheek. so, she has given this court the opportunity address issues her case that happen be endemic to the whole debt-collection world and that impact Ohio courts. Those issues include how to proper determine the statute of limitations in debt-collection cases and whether the filing lawsuits unsubstanti- containing ated can claims constitute violations of the FDCPA and the OCSPA. Against Taylor Credit-Card Account and the Collection Action Jarvis Acceptance
Offer Taylor Jarvis awas resident and domiciliary County. of Summit 2001, Taylor Ohio, Jarvis was solicited with a application credit-card completed Ohio, that application in Delaware, and mailed it from issuing bank it approved. where was After application her was approved, Taylor Jarvis began using became, the credit card. The issuing eventually bank through acquisitions, USA, Bank Chase N.A. Although Taylor Jarvis’s credit-card account was with banks with three different names over the years, always account, the same collectively and we refer to the banks as “Chase.” There is no evidence that she used the anything card for other than making purchases household, for personal, family use. *6 History
Account part account at least of through made on the Taylor payments Jarvis 17} {¶ Delaware; one to an address the state payments 2004 and mailed those 3, 2004, that February requested date of payment-due invoice in the record with a Illinois, stated in an affidavit Taylor made to an address but Jarvis payment be Delaware, in the record all to and there is no evidence payments that she mailed 5, on purchase May last used the card for a that contradicts statement. She 2004. then fell into arrears. She minimum on the payment not makе the scheduled Taylor Jarvis did 2005, minimum 1, and made no scheduled January
account that was due on delinquent by thereafter. Her account was declared Chase monthly payments during statements 2005 informed February Subsequent billing 2005. credit-card her that she could lose past that her account was due and warned Taylor Jarvis billing account unless was made. Chase’s charging privileges payment on the 2, 2005, on which covered Taylor payment May for the due statement Jarvis stated, April charge privileges from March 8 “Your billing period through 31, 2006, Taylor had “written off’ Jarvis’s By January are now revoked.” Chase account. continued to send privileges, her Chase suspending charging After February 2006. That bills, one
Taylor including requesting payment Jarvis $1,707, $1,481, due of and payment a minimum past-due showed a amount of bill making $9,065.37. Taylor Jarvis That bill also showed balance of account, Taylor than minimum due. in amounts less on the albeit payments $50, account, 2006. on on June to Chase payment Jarvis made her last charging of her $1,150 suspension after the payments had made a total of She privileges. Jarvis’s account rights Taylor sold its February In Chase (“Unifund”). those A, rights sold June Unifund
Unifund Portfolio L.L.C. to FRIC. FRMC, “final 16, 2009, FRIC, sent a notice” through September On 21}
{¶ had that her account been Taylor That notice advised Jarvis Taylor Jarvis. account was that unless the department” “pre-litigation forwarded to attorney. the claim to a collection FRIC would forward days, resolved within Litigation a letter 3, 2009, Taylor Law sent Jarvis Cheek Offices On November 22}
{¶ $15,818.50 owed Taylor Jarvis her that FRIC had advised Cheek informing suit later, Cheek filed on March on the account. Four months $8,765.37 seeking Pleas Court County Common Taylor Jarvis Summit FRIC $7,738.99, percent. future interest of account, accrued interest attached to its complaint copies rights the bills sale of the to the account FRIC, from Chase to Unifund and from Unifund to as a copy well as of one of the monthly billing statements that Taylor Chase had sent to Jarvis in 2006. The attached statement that Taylor being showed Jarvis was charged interest on the unpaid balance on the account at percent. the rate of 24.99 did not attach FRIC copy of the credit-card agreement Taylor between Jarvis and *7 Chase. 5, 2010, Cheek filed a motion judgment for default on May with an
{¶ 23} accompanying affidavit from a employee, FRIC that claiming Taylor Jarvis owed $8,765.37, $8,067.51, accrued interest the amount of continuing and further 12, 2010, interest at the of 24 percent. By May rate signed entry FRIC had a trial judge granting from the it a default judgment, awarding it everything that it had asked for.
Taylor Jarvis’s Counterclaims 28, 2010, Taylor On June Jarvis filed motion to vacate the judgment, {¶ 24} 26, 2010, July and on granted the court the motion. August On Taylor Jarvis answered original complaint, defenses, raising several affirmative including defense, a statute-of-limitations and filed number of class-action counterclaims; counterclaims, her amended version of on August filed FRIC, FRMC, included claims against and Cheek. Those claims were based on alleged OCSPA, violations of the FDCPA and the with a along common- law claim process. for abuse of Taylor statutory Jarvis’s first, claims flow from two that theories — claim against
FRIC’s Taylor Jarvis was time-barred by the statute of limitations second, that sought Taylor FRIC interest on Jarvis’s debt that was unavail- able to FRIC law. Taylor Jarvis alleged threatening to file a time-barred claim and actually filing a time-barred claim against her misleading constituted deceptive collection practices under 15 U.S.C. 1692e and the OCSPA and unfair and practices unconscionable collection under 15 U.S.C. 1692f and the Taylor OCSPA. Central Jarvis’s statute-of-limitations-based claims is the position that FRIC’s claims against her accrued Delaware and are thus governed by Delaware’s statute of limitations through operation of Ohio’sborrow- statute, 2305.03(B). ing R.C. According Taylor Jarvis, because Delaware law only affords a three-year statute of debts, limitations for actions to collect on Ann., 10, 8106(a), Del.Code Title FRIC and knowingly brought Cheek an action limitations, barred the statute of thereby violating state consumer- protection and federal fair-collection-practice laws. Taylor Jarvis also asserts that FRIC and Cheek improperly sought
percent interest on her, her debt the complaint against purportedly under the terms of the agreement. Taylor cardholder Jarvis asserted since FRIC could no written contract that set forth a produce higher rate interest than the rate, it statutory statutory was limited to the interest rate —4 percent the time filing of the complaint pursuant R.C. 1343.03. She further asserted — that the actions of FRIC and Cheek in in the seeking complaint more interest than was recoverable constituted violations of 15 U.S.C. 1692e and 1692f as well as the OCSPA. Rulings
The Trial Court’s After prejudice FRIC dismissed without its complaint against Taylor 41(A), pursuant Jarvis to Civ.R. the trial court realigned parties so that Taylor Jarvis was the plaintiff. summary On cross-motions for judgment, trial court then judgment entered for Cheek and on Taylor FRIC Jarvis’s claims. noted, turned, As the trial court Taylor Jarvis’s case “in large part, on borrowing whether Ohio’s statute to the facts of It applies this case.” stated: If case, the Court determines that borrowing applies Ohio’s statute to this *8 question the next is whether claims accrued Ohio or Delaware. [FRIC’s] If Delaware, the Court determines that the they claims accrued then be barred Delaware’s three-year statute of limitations. trial The court held that the statute did not that borrowing apply, Ohio {¶ 29} limitations, governed law the determination of the statute of that law limitations, a imposed 15-year either 6- or statute of and that under either limitation period against Tаylor timely FRIC’s suit Jarvis was commenced it was within brought years Taylor because six of Jarvis’s breach. The court also ruled that that Taylor Jarvis failed to show FRIC and
{¶ 30} Cheek violated the in a by requesting complaint post- FDCPA the OCSPA judgment statutory interest excess of the rate. The court reasoned that a for relief in a is not a is rather a prayer complaint demand the debtor but a request Finally, granted for consideration to court. the trial court also to FRIC and on common-law abuse-of- summary judgment Taylor Cheek Jarvis’s claim. process
The
Reverses and Remands
Appeals
Court of
reversed,
the Ninth District
of
appeal,
Appeals
holding
On
Court
based
at a
of 24
“enunciating
was
its absolute entitlement
to interest
rate
complaint
* * *
court,”
Jarvis,
from Ms.
not from the trial
demanding
and
such
percent
claims
Taylor
prima
Jarvis had established
facie
FRIC
¶at 41.
court remanded the
under the FDCPA and the OCSPA. Id.
Cheek
trial court to
sought
the rate of interest
to the
consider whether
regarding
issue
1692k(c)applied:
defense of 15 U.S.C.
the bona-fide-error
a
in a
for interest was
prayer
Because the trial court found that
debtor, it
of
genuine
not a
did not consider whether
issues
demand
regarding
material fact existed
the existence of bona fide error defense.
in the first instance.
This Court declines to address
issue
¶
1692k(c),
42.
collector can escape liability
Id. at
Under 15 U.S.C.
of evidence that the violation was not intentional
showing “by
preponderance
notwithstanding
proce-
and resulted from a bona fide error
the maintenance
reasonably adapted
any
dures
to avoid
such error.”
upon
acceptance
discretionary
The cause is before this court
1412,
appeal. 135 Ohio St.3d
LAW AND ANALYSIS The Statute of Limitations defendants from stale designed protect Statutes limitations are consumers, states, claims, In most many they expiration but for do not. automatically extinguish of limitations does not a debt and is instead statute *9 prove an affirmative that consumers themselves must raise and defense before courts will dismiss actions to collect on their debts. As the noted, Commission has because 90% or more of consum- [Federal Trade] defend, in in court to these appear filing ers sued these actions do not subject actions creates a risk that consumers will be to a default judgment on a time-barred debt.
Structure and Practices at 45. of a lawsuit a debt collector has been held to filing time-barred falsely representing
constitute a violation 15 1692e and 1692f for of U.S.C. attempt status of a debt and an unfair means to to collect a debt. legal employing (7th L.L.C., 1076, 1079 Cir.2013); v. 736 F.3d Dudek v. Phillips Acceptance, Asset
637 Law, L.L.C., 826, & Thomas at 702 Attorneys Thomas & Counselors (N.D.Ohio 2010). Solutions, L.L.C., The court in v. 833 Suesz Med-1 757 F.3d (7th Cir.2014) (en banc) 636, 639 described the too-common scenario: “[T]he collector that the debtor will be unaware that hopes complete he has defense to default, will garnish the suit and so which will enable the debt collector to wages.” debtor’s Thus, determining underlying the correct statute of limitations on the
collection action is essential to this case and others like it. The
court
appellate
Ents.,
Modell,
this court’s
applied
Sports
below
decision Gries
Inc. v.
15 Ohio
284,
(1984),
2d,
St.3d
No civil action that is based cause of action accrued state, district, territory, jurisdiction may other or be commenced foreign if of limitation that to that period applies and maintained this state district, state, territory, foreign action under the laws of that other jurisdiction applies has or the of limitation that to that expired period *10 expired. action under the laws of this state has held, in key determining applicable trial court the issue the As the {¶ 38} 2305.03(B). That statute statute of limitations this case is the effect R.C. Taylor whethér the statute of limitations of Jarvis’s home—or dеtermines Ohio— Taylor and where Jarvis stated her headquartered Delaware—where Chase is all signed agreement affidavit that she mailed her credit-card and sent of her applicable in this case. payments —is from the of an borrowing prevents litigant gaining statute benefit
{¶ 39}
Ohio statute of limitations when the state where the cause accrued has
shorter
Supreme
statute of limitations. As the United States
Court wrote about Ohio’s
earlier,
statute that was later
“The
borrowing
repealed,
similar version
states,
statute as those of other
was
purpose
borrowing
apparently
of the state’s
if
him
require
right
its courts to bar suits
Ohio resident
to sue
state where the
of circumstances
already expired
had
another
combination
(Footnotes omitted.)
giving
right
place.”
Cope
rise to the
to sue had taken
(1947).
Anderson,
Former Part R.C. Am.Sub.H.B. No. 3569. writing The statute of limitations for suit on a contract not reduced to is six case, years. parties R.C. 2305.07. this failed to enter the written credit- statute, into agreement Accordingly, borrowing card evidence. absent the 2305.07, limitation suit applicable period supplied by FRIC’s would be R.C. years which limits the action to six action viability any after the cause of accrued. case, But if borrowing applicable statute is to this Delaware’s
shorter, three-year applied statute of limitations on contract actions action, six-year collection rather than Ohio’s statute of limitations.
The Jurisdiction
Accrual
key
borrowing
Where the cause of action accrued is the
element of the
Thus,
statute.
we must
the underlying
determine where
collection claims ac-
crued in this
most
precedent
case. The
relevant
favors the conclusion
Delaware,
cause of action
which
paid
accrued
is where the debt was
where Chase suffered its loss.
Groschner,
301, 306-307,
In Meekison v.
153 Ohio St.
(1950), this court of where a of action on a question addressed cause accrued note that had promissory Michigan required been executed but promisor pay Napoleon, off the note Ohio. This court considered whether (which borrowing very Ohio’s statute in at that time similar to current place
639 2305.03(B)) note should be unpaid that the cause of action on the required R.C. that This court concluded statute of limitations Ohio’s. subject Michigan’s Michigan—but contract was where the the claim arose not where the executed— made payable contract was —Ohio: note at obligated pay The Heaths were
Where was default? date, on its due a default paid Napoleon If it was not Napoleon, Ohio. of action would arise for the first Napoleon would occur at cause It to us unassailable that Napoleon. of the default at seems time because occurred, the default and therefore the the cause of action arose where * * * and an action on the note must governs statute the instant case accrued. years within 15 after the cause thereof brought Michigan they in when made the decision residing Id. at 307. The Heaths were Thus, made the decision to not they they to not the note. where were when pay the cause of no in this court’s determination of where played the note role pay action accrued. a suit on a New York involving In a case on based directly point, bank, New York’s on a credit card issued Delaware
resident’s default application statute an borrowing required court held that New York’s highest limitations, nonpayment the cause of action for Delaware’s statute of because is an economic injury in The court held that the claimed “[i]f accrued Delaware. resides and sustains one, plaintiff of action accrues ‘where ” typically the cause Assocs., v. 14 Recovery King, L.L.C. impact of the loss.’ economic Portfolio (2010), 410, 416, quoting 1059 Global Fin. 901 N.Y.S.2d 927 N.E.2d N.Y.3d 693 N.Y.S.2d 715 N.E.2d Corp., v. Triarc 93 N.Y.2d Corp. (1999). Delaware, of limitations in that state’s statute Since the bank was located applied. Grimes, L.L.P., 11-2349, E.D.Pa. No. 2011 WL In Hamid v. Stock & 26, 2011), Pennsylvania’s borrowing court determined that (Aug. limitations of Delaware’s statute of because required application
statute Delaware, where the on a credit card accrued nonpayment cause of action for payment: failed to receive bank it did not receive the
Here, to Discover Bank occurred when damage Dover, office Delaware. post on 2006 at its box payment August due motion, may have set events payment Hamid’s failure to mail her While is, took significant place, where the final event it was Delaware of Hamid’s debt. injury non-payment Bank from where Discover sustained August Hamid’s check on It until Bank failed to receive was not Discover 12, 2006 that it was able to sue her for breach of contract. We conclude place underlying that the where the claim the action accrued was in Delaware. at *2.
Id. Assocs., directly point, In another case Conway Recovery Portfolio L.L.C., court, (E.D.Ky.2014), applying Kentucky’s statute, borrowing held the credit-card issuer’s breach-of-contract claim Kentucky-resident cardholder accrued in Virginia, the location where *12 bank, One, the should have received Capital payment. sought The court to “ identify injurious where ‘the of consequences alleged wrongful the conduct ” Austin, 718, 728, quoting occurred.’ Id. at Abel v. (Ky.2013). S.W.3d The court out pointed impracticality using the location where the cardholder made the decisiоn to not payment place make his as the of the accrual of the action:
Presumably, has similar Capital agreements multiple One with customers locations, in multiple but receives from payments those customers at one It impossible central location. would be to Capital One know where any happen they those customers to be when decide not to pay. Rather, matter, practical only way as a can Capital One determine in customer is default is when is not at payment received the central in Virginia by location a certain date. sic.) “[bjecause at
(Emphasis Id. 720-721. The court concluded that the due date passing payment being without received was the final event that allowed accrue, of action Capital One’s cause to and was also actually the event that One, resulted in damages Capital the breach must have occurred when and received, payment where was not which in this case was Id. at 719. Virginia.” We follow our own precedent and that of New York’s court and highest the cited federal courts and hold that the cause of against Taylor action Jarvis for her failure to pay jurisdiction the debt accrued where the debt was to be paid, Delaware.
The Time Accrual The time of accrual of the of action Taylor cause Jarvis’s debt is an important only consideration this case not point determine from what begins statute of limitations to run: FRIC argue and Cheek that the cause of 2305.03(B), action on the debt accrued before the effective date of R.C. so that Delaware, even if Chase’s cause action accrued borrowing Ohio’s statute is 2305.03(B) 2005. Am.Sub. April date of R.C. The effective inapplicable. V, 7915, 7930-7931, The trial court Laws, Part 8037. 150 Ohio S.B. No. that Chase’s claims of FRIC and Cheek arguments apparently accepted monthly payment make minimum failed to Taylor accrued when Jarvis to the effective prior that since Chase’s claims accrued and found January that the statute, agree could not We borrowing apply. statute date of the her minimum payment failed to make Taylor cause of action accrued when Jarvis 2305.03(B) applies that R.C. nonetheless January but we determine of action her. the cause case, in this evidence Although agreement there is no credit-card between her and Chase. not that a contract existed
Taylor
disputed
Jarvis has
of a credit
whereby
contracts
the issuance and use
agreements
card
are
“Credit
Columbus,
One,
N.A. v.
Bank
legally binding agreement.”
card creates
(10th Dist.1989).
Palmer,
There is no
{¶ 51} that she disputed has she monthly payment. a minimum Nor to make bound 2005, 1, and failed to make January due on payment make the minimum failed to action held that the cause of already have a minimum thereafter. We payment Taylor from Delaware, payment Bank did not receive where Chase accrued accrual: informs the time of the The location of accrual Jarvis. intertwined: inextricably of accrual are place of time and elements
[T]he are where arises place of action arises and “The time when a cause in each connected, act is the critical event the same necessarily since into a cause of action liability transforms the The final act which instance. place.” of time and necessarily aspects has both Anderson, 243, 7, fn. Helmers quoting 589 F.3d Sys., Automotive CMACO (6th Cir.1946). 156 F.2d failed Jarvis Taylor action accrued when that the cause of We determine 2005. January minimum due payment
to make the But finding borrowing this does not make Ohio’s statute inapplicable II, It this case. is true that Article Section prohibits Ohio Constitution Assembly enacting the General from retroactive laws. But there no indication 2305.03(B) Assembly General intended R.C. to be retroactive —it is written to all apply prospectively cases commenced after its effective date. The statute reads: No civil action that is based a cause of action that upon any accrued in * * * may
other state be commenced and maintained this state if the period applies limitation to that action under the laws of that other * * * expired state has or the of limitation that period applies to that action under the expired. laws this state has added.) (Emphasis 2305.03(B) applies R.C. to civil actions “commenced and maintained”
Ohio after the effective date of the statute. “Statutes of limitations are remedial
Bank,
Co.,
in nature.” Flagstar
F.S.B. v. Airline
Mtge.
Union’s
128 Ohio St.3d
“
¶
529,
We have also stated that
“retroactivity
clause nullifies those new laws
*14
burdens,
duties,
that ‘reach back and create new
new
obligations,
new
or
new liabilities not
at
existing
the time
statute
[the
becomes effective].’
(1901),
51,
v.
Miller Hixson
64 Ohio St.
59 N.E.
752.” Bielat [v.
Bielat],
[350,]
[2000],
352-353,
87 Ohio St.3d
721 N.E.2d 28
In Van
Co.,
Fossen
Babcock & Wilcox
36
[v.
Ohio St.3d
643 ” 105], Smead, of the quoting to the time of enactment laws.’ The [Id. Legislation: Jurisprudence A Basic of Against Principle Rule Retroactive (1936), 20 Minn.L.Rev. 781-782. Boyce, & Control Found. Bd. Trustees v.
Tobacco Use Prevention
of
¶
511,
extinguish destroy it does not an constitutionally permissible existing limitations is when cause of after the vitality of action. continued of the action amend- cause This the statute is crucial factor in the court has inquiry. ment of the of an amended of limitations operation delineated between the statute an and one which totally existing right which substantive obliterates of be remedy the time in which the can realized. merely period shortens long of an statute is not unlawful as as a application The latter amended “ * * * ‘a reasonable time litigant claimant or is still afforded prospective Flowers, his Ohio St.2d right.” [Gregory v.] [32 which to enforce’ [within] Co., (1972), RR. 48,] 54, v. Cent. quoting N.E.2d 181 Smith New York [290 (1930)]. 45, 49, 122 Ohio St. 170 N.E. (1978). sic.) Matvejs, Cook 56 Ohio 383 N.E.2d St.2d
(Emphasis
“
sum,
may also
already running
of limitations
period
‘[a]
legislature’
long
sufficiently long
as
‘a
allow
period
shortened
as
is allowed.”
ex rel. Nickoli v. Erie Metro-
reasonable time
suit’
State
begin
588, ¶ 29,
Parks,
449,
{¶ 59} of limitations. We affirm applicable filed outside the statute well liable potentially that FRIC and Cheek are judgment appeals filing to file and for suit threatening the OCSPA suit under the FDCPA and for further debt, remand the case to trial court on a time-barred and we *15 determinations, a including determination of the effect of our holding on this on Taylor issue Jarvis’s claim process. for abuse of
The Interest Claim Taylor Jarvis asserted claims FRIC and Cheek pursuant FDCPA and the OCSPA based on claim in complaint FRIC’s that it was entitled to postjudgment interest excess of applicable statutory rate. The trial court granted summary judgment to issue, FRIC and Cheek on the relying primarily on the decision in Argentieri Inc., v. Fisher Landscapes, 15 F.Supp.2d (D.Mass.1998), for proposition that setting forth a claim in prayer relief filed with a court is distinguishable from other conduct in which a debt collector engage. In Argentieri, plaintiff in a federal-court alleged action an FDCPA
violation based upon request for attorney fees that had been in a made state- action; a breach-of-contract the plaintiff asserted that the FDCPA was violated because there no statutory or contractual basis for such Id. at 58-59. an award. According Argentieri, a prayer for relief just is request to the court:
A prayer for relief a complaint, even specifies where it quantity of fees, attorney’s just that: a request to a party third court—for —the consideration, not a demand to the debtor A request himself. for attor- ney’s fees ultimately upon rests the discretion of the court and a determi- nation of applicability at a stage later litigation. The whole purpose of regulating debt collection was to “supervise” a range unsupervised contacts, such as demand letters late-night telephone calls. contrast, a statement in a pleading is supervised by the court and by monitored different. counsel. The two situations are drastically (Footnote omitted.) Id. at 61-62. We disagree with that statement. A prayer for 24 percent interest anis
intimidating statement to a debtor. According Argentieri, such a prayer is “supervised by the court and monitored counsel.” But in a case that is filed with the anticipation obtaining default judgment, how much “supervision” statements in a pleading is actually case, conducted? In others, this as in many there was none. “Unsupervised contacts” debt collectors are annoyances; court, demands to a hand, on the other have the force of legal system behind them. Debt collectors borrow the legitimacy justice system to back up their claims. civil filing serves as a “[A] credible threat to inflict harm on the defendant” by damaging the defendant’s credit rating “may thus induce the Debt Collection Bankrupt: Broke But Not Consumer pay.” Hynes, defendant *16 (2008). it, 1, Courts, put 20 As one court 60 Fla.L.Rev. in State could be reading Complaint consumer the State Court unsophisticated complaint] that law firm that filed the impression with the false [the left fees addition to attorneys’ entitled to recover an award legally turn, could impression, owed. This false allegedly the amount of the debt incurring out of the fear of pay coerce the consumer to the debt subtly greater liability. even Formato, Abrams, Fensterman, Fensterman, Eisman, & Ferrara
Samms
(S.D.N.Y.2015).
L.L.P.,
160,
112
164
Wolf,
F.Supp.3d
for debt
filing
that a court
is not
safe harbor
Federal courts have held
1489,
Heintz,
294, 115
131
In
at
S.Ct.
under the FDCPA.
U.S.
collectors
395,
“applies
held that the FDCPA
Supreme
the
States
Court
L.Ed.2d
United
“circuit
holding,
on that
federal
lawyers.” Relying
activities of
litigating
the
conduct, including
filing
the
that
widely recognized
litigation-related
courts have
Act.”
v. The
Lipscomb
rise to claims under the
complaints,
give
of formal
can
(D.D.C.2015).
Firm, P.L.L.C.,
251, 260
Law
Raddatz
(3d Cir.2015),
Am., N.A.,
168,
F.3d
In
v. Bank
Kaymark
from the FDCPA
uniquely exempted
that “a communication cannot be
court held
case,
In that
or,
complaint.”
particular,
pleading
because it is a formal
Bank of America
by
held
consumer,
mortgage
had defaulted on
Kaymark,
against
(“BOA”).
proceedings
initiated foreclosure
A
firm
BOA
representing
law
list
included an itemized
foreclosure
in state court. The
the consumer
$1,650
yet
fees that had not
been
debt,
attorney
included
of total
which
Id. at 173.
improper fees.
filing
allegedly
time of the
and other
incurred at the
a claim that
law firm included
action
BOA and the
subsequent
Kaymark’s
mortgage
in the
yet performed
not
legal
to collect fees for
services
by attempting
at 174. The court held
foreclosure,
FDCPA.
Id.
law firm had violated the
the amount
conceivably misrepresented
Complaint
Foreclosure
that “the
(10)”
1692e(2)(A)
and
owed,
of [15 U.S.C.]
a basis for violations
forming
to collect
attempt
law
“sufficiently alleged
firm’s]
that
Kaymark
[the
had also
mortgage
not
authorized’
‘expressly
fees was
misrepresented
those
a violation of 15 U.S.C.
law,”
the basis for
forming
permitted
contract or
1692f(1).
law
1692f(1).
response
quoting
at
15 U.S.C.
Kaymark
claims,
court
the basis of FDCPA
cannot be
argument
pleadings
firm’s
text,
text,
interpreting
case law-
as well as the
statutory
concluded that “the
Id. at 176.
this
meritless.”
argument
renders
Dinkin, P.A.,
(11th
In Miljkovic v.
Cir.2015),
&
misleading, or unconscionable documents submitted to a court
served on the
counsel)
consumer or his
in an attempt to collect on any debt were excluded from
Jerman,
proscriptions.” Id. at
fn.
quoting
[FDCPAJ’s
law firms who regularly engage debt-collection activity, even that when activity litigation, involves and categorically prohibits abusive conduct collection, the name of debt even when the audience for such conduct is someone other than the consumer.
Id. at 1297. A recent decision of the Sixth Circuit Court of Appeals involved a
{¶ 66} scenario akin to present case—the consumer’s FDCPA cause of action was based on a debt collector’s claim for improper interest on a credit-card debt. In Assocs., Stratton v. Recovery 770 F.3d at the court held that a debt Portfolio improper collector’s claim statutory for interest made a complaint filed a state trial court could form the basis for a by claim the consumer under the Stratton, In user, FDCPA. Stratton, the credit-card had stopped making pay- card; (“GE”) ments on her credit her contract with Money GE Bank established an interest rate of percent. 21.99 Id. at 446. Once GE determined that the debt uncollectible, was it stopped charging debt, Stratton interest on the for reasons that, to according court, the federal circuit were “neither irrational or altruistic: By off charging the debt and ceasing charge it, interest on GE could a take * * * tax bad-debt deduction and could avoid the cost of sending Stratton periodic statements on her account.” Id. at 445. GE then sold the debt to (“PRA”). Associates, Portfolio Recovery L.L.C. Id. years debt, Two after buying Stratton, PRA filed suit against “
alleging $2,630.95 that she ‘owes with [PRA] interest thereon at the rate of 8% per 19, 2008[,J annum from December until the date of judgment with 12% per ” (Brackets annum sic.) thereafter until paid, plus court costs.’ Id. quoting complaint. statute, PRA’s Kentucky’s usury Ky.Rev.Stat.Ann. 360.010(1), for all loans made that state at 8 legal sets the rate of interest agree writing rate. Stratton at 445. percent parties higher unless court, filed a class action PRA in federal putative Stratton PRA’s collect 8% for the attempt period that interest between alleging that off debt the date sold debt to charged the date GE Stratton’s alleged the 8% particular, PRA violated FDCPA. Stratton creating not “expressly by agreement interest was authorized the debt law,” 1692f(1), § by falsely that PRA had permitted repre 15 U.S.C. owed, the “character” the “amount” she sented of Stratton’s 1692e(2)(A), § and that to recover it was not was PRA’s suit interest owed 1692e(5). taken,” § take an that cannot legally “threat” to “action Id. at 446. case, concluding The district dismissed Stratton’s “even
unsophisticated request consumer would have understood that the interest just by was and would not have been misled it.” Stratton request, Portfolio (Nov. Assocs., L.L.C., 5:13-147-DCR, No. 2013 WL *5 Recovery E.D.Ky. 2013). Further, the district court held that state-court collection action threat, instead a vehicle” recover did not constitute but was “lawful Id. at *7. Stratton’s debt. reversed, the interest sought Circuit first establishing The Sixth
PRA
law. The court found that the 8
in its
not authorized
*18
to
it was
statutory interest rate was unavailable
PRA because
unavailable
percent
with
negotiated
to the contract GE had
Stratton:
GE due
interest,
it had
right
acquired
right
waived its
collect contractual
GE
gave
the
statutory
up
its
to collect
interest. GE
by forgoing
right
in part
agree to a
statutory
8%
interest when it had Stratton
right
to collect
the
it
right
contractual
interest. GE cannot recover
21.99%
rate of
right
it
the
for which
away simply
later chose to waive
bargained
because
bargained.
Stratton,
percent interest rate the consumer constitute Argentieri: holding, the district court’s which had relied rejected court court distinguished The district court “claims made in from the type most often under the and saw abusive tactics invoked FDCPA” “no need court,” invoke the of the Act “when a claim made to the protections” Inc., v. (quoting Argentieri Landscapes, Fisher (D.Mass.1998)). Both Supreme precedent Court and the other traditional statutory tools of construction make clear that district under- the court’s standing of the FDCPA is untenable.
(Footnote omitted.) Stratton at 449. First, the court noted that the United States Court Supreme recognized 72}
{¶ in Heintz that the FDCPA Stratton applies litigating lawyers. activities Second, at 449. court pointed inception out from its FDCPA concern abusive Congressional litigation “reflected with tactics” through 1692i, of 15 FDCPA’s “fair provision, enactment U.S.C. venue” which was designed to problem practice combat the of forum abuse—an unfair in which debt default judgments by collectors seek to obtain suit courts filing so distant Id. at 449-450. Third, an appearance. inconvenient that consumers cannot make Stratton court that post-Heintz recognized amendments to 15 1692e U.S.C. “ only ‘from specifically exempt pleadings particularized formal a sole require 1692e(11)] the requirement ment FDCPA: 15 U.S.C. that all communi [in ” they Stratton cations state that come from a collector.’ at quoting debt Abramson, (4th Cir.2007). Sayyed Wolpoff & 485 F.3d on the Relying Sayyed, the Stratton court determined that formal reasoning Fourth Circuit’s subject are to the other pleadings provisions 15 U.S.C. 1692e: As the Fourth Circuit explained, amendment its in fact “[t]he terms activities, suggests litigation subject that all including pleadings formal are FDCPA, except Congress exempted to the limited extent 1692e(11).” § formal from the pleadings particular requirements of quoting Sayyed Stratton at 231. The Stratton concluded, sum, “In of an strong absent evidence exemption, protections FDCPA’s are available practices wherever unscrupulous might collection most found—and Id. certainly litigation.” Having filing determined that of a can constitute 73}
{¶ *19 Stratton court violation, sophisticated FDCPA the “least employed consumer” ‘the objective tes t —“ usual ”—in legal protection standard consumer cases’ Id., Javitch, Rathbonе, Gionis v. Block & considering complaint. quoting PRA’s L.L.P., Cir.2007). (6th The Stratton court held that “[a]s Fed.Appx. responsible the drafter of the PRA for complaint, ‘is its content and for what the ” sic.) (Brackets it.’ have understood from would sophisticated least [consumer] L.L.P., Schmieg, & 756 F.3d v. Phelan Hallinan quoting McLaughlin at Id. Cir.2014). (3d 240, 246 standard, alleged had the court found Stratton Pursuant to that 74}
{¶ FDCPA violations: plausible numerous debt, to collect interest on Stratton’s right PRA does not have the
Because the “charac a “false contrary representation” is allegation PRA’s 1692e(2); Gearing § see also and “amount” of Stratton’s debt. ter” Cir.2000). (7th PRA’s state Corp., 233 F.3d Brokerage Check $2,630.95 8% plus an “attempt” court suit is an to collect “amount” — in the by any agreement authorized” “expressly is neither interest —that 1692f(1). perspective § And from the by law.” “permitted record nor PRA “to take also a “threat” consumer sophisticated the least to recover 8% interest. namely, legally action that cannot taken” — Stratton, 770 F.3d 451. PRA that its put forth rejected argument court in The Stratton 75}
{¶ to the state request merely aspirational interest was statutory for request The court status of the debt. court, legal representation rather than amount a'nonspecific, open-ended sought that PRA had not significant found it rather, in the numbered appropriate, but might have deemed that the state “ Defendant(s) stated, plaintiff ‘The owes had complaint allegations ” added (Emphasis annum.’ per at the rate of 8% $2,630.95,with interest thereon court.) court found that “even quoting complaint. Id. at by the complaint from the paragraph that numbered consumer would read sophisticated ” The court Id. ‘aspirational request.’ than an allegation a factual rather to be held: not a PRA’s allegation two reasons:
Thus, PRA’s fails for argument that is a representation protection and there is no “simple request” whatever interest plus that Stratton owed Saying inaccurate. $2630.95 saying that Stratton not the same as simply to award is court chooses off her account. charged date GE interest from the plus 8% owed $2630.95 PRA’s plausible It is therefore PRA the latter. averred debt. “character” and “amount” Stratton’s both the falsely represents misled. have been certainly most consumer would unsophisticated An *20 650
Id. We with agree overarching conclusion reached the court in Stratton that both the purpose of the FDCPA as reality well as the text the debt-collection industry’s pursuit of default judgments part as of its typical collection strategy require application FDCPA abusive and unfair employed tactics in litigation: governs court;
The FDCPA collection or out of it does not allow debt collectors to use as a litigation vehicle for abusive and unfair practices “ that the Act forbids. The district court’s that there is ‘no [statement ” “ need to protections’ invoke the of the FDCPA ‘when a claim is made to ” court,’ 62)] (quoting Argentieri, 15 at conflicts with the text and purpose the FDCPA and ignores reality of the debt business, collection where “some debt collectors have all foregone mean- ingful attempts communicate with debtors and have instead opted to file lawsuits against debtors en masse in an effort to collect enforceable default judgments.” Bremner, Matthew R. The Need in the Age for Reform Chaos, Financial 1553, (2011); 76 Brook. L.Rev. 1587 see also Crawford * * * LLC, (11th Funding, 1254, Cir.2014). LVNV 758 F.3d 1256 By in a alleging complaint that a consumer owes interest that had fact been waived, a debt collector may be able to secure default judgment for an Suesz, amount the consumer actually does not owe. See 757 F.3d 639. The FDCPA proscribes practices. such
Stratton at 451-452. Stratton, Like the debt collector complaint FRIC its sought
interest rate to which it was not entitled. A creditor is limited to interest at the
statutory rate unless a written contract provides
interest,
a different rate of
1343.03(A).
pursuant
to R.C.
Co.,
Minster
Coop.
Farmers
Exchange
Inc. v.
¶ 25-27.
Meyer,
459,
117
was a trial The is might appropriate. request at rate the deem set interest complaint: forth in three of the paragraph belief, charged information and Plaintiff is owed the off sum of
Upon $7,738.99, $8,765.37, interest of for a total amount owed of plus accrued Defendant(s) $16,504.36, interest at 24.00 % and plus future is/are obligation pay default of to said balance. his/her/their claim complaint belies idea that FRIC’s of entitlement specificity The of the the request to the court rather than merely aspirational interest was percent legal a the of the debt. representation of status Fin. rely Harvey Corp., FRIC and Cheek v. Great Seneca F.3d (6th Cir.2006), in a lawsuit to collect a filing which the court held the proving debt without the immediate means of the existence of debt
purported In had Harvey, a violation of the FDCPA. the consumer filed does not constitute sought a collection and had pleading complaint а state-court responsive its in the consumer discovery attorneys culminating from the debt collector and — and amount of the debt. compel concerning ownership a motion to filing — its The discovery complaint. collector did not dismissed respond The debt court, and its alleging then that the debt collector consumer filed suit federal they prove knew that documentation to the existence debt law firm lacked filing of a they a action and for which filed state-court collection prac- debt-collection deceptive under those circumstances constituted complaint Id. at 326. tice. complaint, of the consumer’s affirming the district court’s dismissal court, if even the pursued that “a properly Circuit held debt Sixth adequate claim.” Id. at 333. The yet possess proof collector does not its
debt of a district court a similar case: reasoning court in federal Harvey quoted attesting the client’s affidavit “[F]iling supported a lawsuit * * * about representation is not a false and amount of a debt existence debt, of a nor is it unfair or unconscionable. legal or status character is more information or any request A lawsuit entitled defendant claim, through pleadings challeng- either formal plaintiffs details about ing complaint, through discovery. or does not allege [The consumer] false, in the or anything complaint state court was that the alleges that more of a trail essentially paper baseless. She should lawyers’ been in complaint. have hands attached to the such imposes obligation.” FDCPA no Javitch, Block, Rathbone, L.L.P.,
Id. quoting Deere & 413 F.Supp.2d (S.D.Ohio 2006). 886, 891 Harvey pointed Harvey The court in out that allege did not in her
complaint that the its law had debt collector and firm failed to undertake existed; rather, not investigation Harvey’s reasonable into whether or “she essentially focused on contention” that the debt collector and law firm “did possess not presently proving means of that debt” when the state-court complaint was filed. Id. at 333. Harvey distinguishable First, for several reasons. the consumer
{¶ 82} this alleges Taylor case more than the alleged Harvey. consumer Jarvis’s pleading only this case not that alleged against FRIC and Cheek filed a lawsuit debt, her without possessing filing at the time of the of proving means the but she alleged they also regularly maintain lawsuits such as the against one her ability “without the intention or to ever obtain evidence” that would establish statutory FRIC’s entitlement to interest of the agree excess rate. We with courts that have allegations found that this lack of type regarding the intent — investigate prove claims on behalf of debt cases distinguish such collectors— See, L.L.C., as this Haney. e.g., one from Funding, Rollins Midland E.D.Mo. (June ERW, 3506556, 3, No. 2015), 4:14CV01976 2015 WL citing *8 Hinten v. L.L.C., DDN, Midland Funding, E.D.Mo. No. 2:13CV54 2013 WL *7 (Oct. 22, 2013), L.L.C., v. LVNV Funding, Brewer E.D.Mo. No. 4:14CV00942 (Oct. 2014). AGF, *2 WL Further, beyond here went filing FRIC far a simply complaint without
yet having “adequate
of its
proof
Harvey,
claim.”
attempted under rate of interest statutory from the except could FRIC written contract 1343.03(A). forth the interest setting contract existence of written The R.C. of its claim. an essential element rate is claims that are recoverable asserting is a clear difference between There Agency, v. D.B.S. Collection that are not. Foster the law and those
under FDCPA (S.D.Ohio 2006), a violation of the the court found to an pursuant that were unobtainable attorney fees prayed a creditor when of the ‘least “from the perspective court reasoned that The Foster Ohio statute. ” an absolute consumer,’ “constitute^] for such relief prayer sophisticated not recoverable under fees, such fees are though even attorney entitlement Id. Ohio law.” consumer, case, sophisticated of the least perspective from the In this unavailable that was to a rate of interest claimed entitlement for relief prayer Taylor court’s decision appellate affirm the law to FRIC. We
under the the FDCPA and Cheek under case FRIC facie prima established Jarvis this issue. OCSPA Liability the OCSPA Under applicabili- question not address head-on court below did 87} {¶ held simply instead attorneys, and their but collectors the OCSPA debt ty of and the FDCPA under both the viable claims presented had Taylor Jarvis 1345.01(A) 1345.01(C) and in R.C. rely on definitions and Cheek OCSPA. FRIC collection and their assignees to bank apply “does not that the OCSPA to assert *23 ” reject We ‘supplier.’ transaction’ or is no ‘consumer there attorneys because that debt Taylor position with Jarvis’s agree regard in this arguments their collections, liable can be held in debt collectors, attorneys engaged including under OCSPA. statutes, intended remedial are FDCPA and OCSPA Both the FDCPA, a debtor a claim under conduct. To state range of
reach a broad of the act provisions the substantive one of that a violatеd party establish must L.L.C., Fin., Home v. Chase activity. Glazer in debt-collection engaging while “false, Cir.2013). deceptive, (6th forbids 1692e 453, 15 U.S.C. 459-460 704 F.3d any the collection in connection with means or misleading representation^] or representa- a “false 1692e(2)(A) making from party prohibits debt.” 15 U.S.C. 1692e(10) from party prohibits 15 U.S.C. any debt. And the “amount” of tion” of any to collect attempt collect or means to deceptive or “false using representation 654
debt or to obtain information concerning consumer.” For a statement to be actionable, however, it just must be “more than misleading ‘must be material- —it ” ly sic.) false or misleading violate Section 1692e.’ (Emphasis v. Clark Lender Servs., (6th Processing 460, 562 Fed.Appx. Cir.2014), quoting Wallace v. Bank, (6th F.A., Cir.2012). Washington 323, Mut. 683 F.3d “The materiality- * * * standard means that in false, addition to being technically a statement would tend to mislead or Id., confuse the reasonable unsophisticated consumer.” citing Wallace at 326-327. The OCSPA is similar: 1345.02(A) Section provides
[R.C.]
supplier shall commit
“[n]o
an
unfair
deceptive
or
act or practice in connection with a consumer transac-
tion.
an
Such
unfair or
act
deceptive
practice by
or
a supplier violates this
section
before,
whether it
during,
occurs
or after the transaction.” Section
1345.03(A)provides that
supplier
“[n]o
shall commit an unconscionable act
or practice in connection with a consumer transaction. Such an uncon-
act
practice
scionable
aby
supplier violates this section whether it
before,
occurs
during, or after the transaction.” Although the OCSPA
does not expressly address debt collection practices, Ohio courts have
applied the OCSPA to such practices.
Co.,
Liggins May
See
v.
44 Ohio
81,
(Ohio
1975).
Misc.
“[Vjarious violations of the FDCPA constitute violation of the CSPA. * * * purpose [T]he both acts prohibit is to both unfair and deceptive acts and this court any holds that any violation of one the enumerated sections of the FDCPA is necessarily unfair and deceptive act or practice § violation of § R.C. 1345.02 1345.03.” and/or v. Kelly Assocs., Inc., Montgomery Lynch & 1:07-CV-919, N.D.Ohio No. 15, 2008), WL *11 (Apr. quoting Becker v. Montgomery, Lynch, (Feb. N.D.Ohio No. 2003). Civ.A. 1:02CV 2003 WL *2 But see Lerner, Slorp Sampson (6th & Rothfuss, Cir.2014) 587 Fed.Appx. 260-261 *24 (cautioning that some conduct that violates the FDCPA not necessarily OCSPA). constitute a Thus, violation of the helpful to further examine the as we the of the OCSPA the context of debt application FDCPA consider buyers attorneys. debt and collection FDCPA, “any person the a debt collector is who uses any Under any the
instrumentality principal of interstate commerce or the mails business debts, of who or any regularly of which is the collection or collects purpose collect, to indirectly, to or owed or or asserted attempts directly debts due 1692a(6). Jenkins, in Heintz or due another.” 15 U.S.C. And v. U.S. owed 299, 115 131 L.Ed.2d States Court made Supreme S.Ct. the United FDCPA in consumer- applies “attorneys ‘regularly’ engage clear that the who activity even when consists See also activity, litigation.” debt-collection (7th L.L.C., Blatt, Hasenmiller, Moore, Leibsker & Beler v. 480 F.3d Cir.2007). the the to a Typically, applicability particular to determine FDCPA 92}
{¶ firm, law or law firm attorney question attorney or the salient is whether engages activity meaning consumer-debt-collection within the regularly answering “regularity” the focus is on the of the collection question, act. by the and his or her firm. attorney activities of the recognizes, “[ojrdinary interpretations As the Sixth words Circuit activity and fail to the amount of collection ‘regular’ ‘regularly’ delineate debt * * * attorney collector’ under the FDCPA.”
required find ‘debt (6th Cir.1999). Frankel, 197 F.3d The Sixth Circuit holds Schroyer firm debts for attorney ‘regularly’ a court to that an or law collects that “for find FDCPA, attorney that the or law firm plaintiff must show purposes clients, or for or collects debts as of course its clients some collects matter substantial, general practice.” not of his or its law principal, part as a but debts Id. at 1176. reported in Heintz and other Despite Supreme holding Court’s law lawyers and firms
precedent
applies
clear that
FDCPA
makes
Cheek
collection
as to other debt
regularly engage
as well
who
collector
under
because
subject
liability
are not
the OCSPA
they
and FRIC assert that
1345.01(C)
because no
of R.C.
“suppliers”
meaning
are not
within
they
1345.01(A)
of R.C.
occurred.
meaning
“consumer transaction” within
“suppliers.”
are
have
that Cheek
FRIC
concluding
We
little trouble
95}
{¶
Estate, Inc., Real
Barclay’s Capital
Anderson v.
explained
As we
31,
“ franchisor, seller, lessor, person other assignor, or ‘Supplier’ means transactions, soliciting consumer effecting or engaged the business with consumer.” R.C. person directly deals whether not *25 1345.01(C). “soliciting” The are not “effecting” terms defined statute, so terms give plain ordinary meanings. we their about;
“Effect” bring happen.” is defined as to make Black’s Law “[t]o Dictionary at 592 is act or an “Solicitation” defined as [9th Ed.2009]. “[t]he seeking request instance of or a or requesting something; obtain petition.” Black’s at 1520. ¶
Id. at 29-30. Both Taylor FRIC and solicited Cheek Jarvis effort to effect the recovery They of her or resolution it. suppliers of are within now turn meaning the OCSPA. We a question whether “consumer transaction” occurred. OCSPA, For purposes of term “consumer transaction” is defined
to mean sale, lease, chance, award or other assignment, transfer of an item of service, franchise, or an to an
goods, intangible, individual for purposes household, that are primarily personal, family, or or to supply solicitation any оf these things. “Consumer does not transaction” include transactions persons, between defined sections and 5725.01 institu- 4905.03 [financial Code, customers, tion defined] the Revised and their transac- except for tions made involving pursuant loan 1321.35 sections to 1321.48 the Revised Code and transactions in connection with residential mortgages officers, loan brokers, between mortgage or nonbank lenders mortgage customers; and their transactions a home involving construction service contract as in section Code; defined 4722.01 of the Revised transactions between certified public accountants or public accountants and their clients; attorneys, transactions between physicians, dentists and their clients or patients; and transactions between veterinarians and their patients pertain medical but ancillary treatment not services. 1345.01(A). R.C. Relying on this court’s decision in Reagans MountainHigh Coach
works, Inc.,
22,
litigation brought home, plaintiffs plaintiffs sought motor which the claimed was defective. action, a violation of recovery including alleging under various causes of ¶at 1. The also that the bank that loaned them the plaintiffs alleged OCSPA. Id. claims money purchase derivatively for the liable their seller. Id. *26 claim, addressing that we held that a bank cannot be held deriva-
{¶ 100}
(“FTC”) regulation
to a
Trade
or rule
tively
pursuant
liable
Federal
Commission
an
under
damages
attorney
goods
for
award of treble
and
fees
seller
¶
driven, in
analysis
part, by
recognition
the OCSPA. Id. at 2-3. Our
exempted
that transactions between financial institutions and their customers are
meaning
from the definition of a “consumer transaction” within the
of R.C.
¶
1345.01(A)
Sunnyside Toyota,
Id. at
of the OCSPA.
33. See also Jackson
¶ 7 (8th Dist.)
Inc.,
of the
As amicus curiae the state
OCSPA.
with
applies only
for
and financial institutions
transactions
exemption
banks
entities,
financial
as defined
specific
namely,
certain
banks and
institutions
1345.01(A)
statutes,
any
that those
R.C.
and 5725.01. Cheek fails to establish
FRIC,
Code,
buyer
an
on
a debt
exemption
other statutes in the Revised
confer
an
involving
exempt
that
a debt that
in a transaction
purchased
originated
institution,
repre-
or on
because it contracted with and
merely
financial
Cheek
and its
reject
we
notion that a debt collector
buyer.
any
sented a debt
And
exemption
financial-institution
can be
“derivative use” of the
attorneys
permitted
between a
originated
on the fact that the debt at issue
solely
the OCSPA based
Foster,
at
fn. 42
financial institution and a consumer. See
invocation of the
attorney’s
debt collector and its
(rejecting
nonphysician
attempts
their
applies
physicians regarding
exemption
the OCSPA
transactions); Kline v.
arising from
health-care
patient-physician
collect debts
Inc.,
3:08cv408,
No.
Mtge.
Registration Sys.,
Electronic
S.D.Ohio
WL
(Mar.
2010)
that the financial-institution
(holding
exemption
*5
banks).
to national banks and not to subsidiaries of those
applies
OCSPA
Anderson,
that our
additionally
Cheek
asserts
decision
136 Ohio
31,
and homeowners. We held the OCSPA did not providers key presented service three reasons not here. First, in Anderson we held that because “[mjortgage servicing is
contractual between the financial agreement mortgage servicer and the institu- tion that owns and mortgage,” both note there was no “consumer” transaction ¶ Second, meaning within the recognized OCSPA. Id. 12-13. we frequently regulated by land transactions are specialized legislation and thus are Act, from excluded the Uniform Consumer Sales Practices on which the OCSPA ¶ third, is modeled. Id. at 18. And we found that that legislative history *27 the OCSPA that amply Assembly demonstrated the General did not intend for ¶ apply mortgage-service the OCSPA to to Id. at providers. 20-25. None of the factors that were critical to our analysis Anderson is
present reject here. We therefore Cheek’s and that arguments FRIC’s debt attorneys collectors and their are from exempt the OCSPA.
CONCLUSION We hold Ohio’s statute borrowing applies this case and that therefore, applied Delaware’s statute of limitations to FRIC’s debt-collection against Taylor action Jarvis. We further hold that complaint against FRIC’s Taylor Jarvis was time-barred filing and of a time-bаrred collection action form the basis of violations under the FDCPA and the OCSPA. We also hold that FRIC’s claim in its interest that is unavailable law upon Taylor was demand made than an aspirational request Jarvis rather trial court and thus can be the of an basis actionable claim under the and FDCPA the OCSPA. We remand the case the trial court for a determination of those action, causes of including consideration of whether the FDCPA’s bona-fide- error defense is and for a applicable, determination of the cause of action for process. Finally, abuse of we hold that buyers collecting on credit-card debt attorneys subject and their are the OCSPA. appeals affirm of the court of Accordingly, judgment we summary trial of FRIC’s and Cheek’s motions for granting
reversed the court’s proceedings to the trial court for further and remand cause judgment opinion. consistent with this affirmed
Judgment and cause remanded. O’Neill, J., concurs. J.,
Lanzinger, only. in judgment concurs Kennedy, J., judgment, opinion and concurs in the with part concurs O’Donnell, joined by J.
O’Connor, C.J., dissents, French, J. opinion joined by with an J., concurring. Kennedy, Pfeifer; however, I do not agree opinion I with most Justice ¶ I conclusion that the action
join
agree
59. While
with the ultimate
through
I
untimely, disagree
analysis
with
brought against
Taylor
Sandra
Jarvis
accrued, including
opinion’s
action
her
when the cause of
regarding
a credit-card account is an
borrowing
discussion of Ohio’s
statute. Because
contract,
liability arising
from
single
account founded
with
indivisible
upon
series,
as a
the issue of when the cause
individual transactions that are connected
an action on an account. The
regarding
of action accrued is resolved
case law
run on
date of the
begins
for an action on an account
statute of limitations
facts
principles
on the account.
these
before
appearing
Applying
last item
us,
the date
I would hold that the cause of action accrued on June
account.
payment
made her last
on the credit-card
Taylor Jarvis
Pfeifer reasons that when a credit-card debtor
opinion
of Justice
110}
{¶
minimum
when it becomes due
agreed-to monthly
payment
fails to make an
*28
at
purposes. Opinion
statute-of-limitations
a cause of action accrues for
owing,
L.L.C.,
¶
Law,
50,
Attorneys & Counselors at
Dudek v. Thomas & Thomas
citing
(N.D.Ohio
Citibank,
2010);
10th Dist.
826,
Hyslop,
N.A. v.
¶ 16-17;
12AP-885,
breach-of-contract in engage any independent analysis datе and did not accepted undisputed of the cause of action accrued. Id. resolve the issue when (¶ also devoid of discussion of when the cause of action Hyslop any 112} Instead, that Hyslop billing accrued. court noted the credit-card-account activity beginning in evidence reflected September statements ¶ 5, 2011. Id. at 12. An continuing through September employee the bank that had stated an affidavit the debtor was default for his failure to make ¶at The “proper payments” appellate on the account. Id. 13. court did not with any regarding agreed address issue the statute limitations and the trial that that required the bank had established the debtor had failed to make ¶ account Id. at 16-20. payments and default. analysis The Poling proved focused whether the bank had claim alleged payments
breach-of-contract
for the debtor’s
failure to make
on a
¶
action accrued. The court noted that after
for and
applying
receiving the credit
card,
transfer,
the debtor made a balance
some
purchased
goods and services
card,
2007,
with the
payments
“made
on the account until November
when
she sent a letter to
contending she was not
required
pay any
[the creditor]
¶
Heinz,
any of the cases cited Justice the cases relied in his upon opinion are unavailing. Rather, pertaining case law to an action on an account guides
determination of when the
of action
cause
accrues
statute-of-limitations
contract,
An
an
purposes.
upon
action on
account is founded
Arthur v. Paren
teau,
(3d
302, 304,
Dist.1995),
App.3d
102 Ohio
the card is [T]he minimum required payment, debtor the amount of that month’s indicating used, vary upon which how much the card has been depending kinds, has fees of different whether the imposed whether the creditor variable, have previous payments interest rate for the card is and how been made.
Id. analogous concluded that a credit-card account is The Smither court account,” which “open *30 the intend that the individual transactions the parties
“results where
series,
independent
as a connected
rather than as
of
account be considered
other, subject
shifting
to a
balance as additional debits and credits
each
made,
account,
until one of the
wishes to settle and close the
parties
are
liability
and indivisible
from such
single
arising
and where there is but one
reciprocal
series of related and
debits and credits.”
(Footnotes omitted.)
Id.,
2d,
1 American
Accounts and
quoting
Jurisprudence
(2005).
4, at 623-624
Accounting, Section
oрen
court held that a credit-card debt is “an
account
Smither
for statute of limitations
that the statute of limitations for such account to the date of the (“Whether consider the of activity last on the account. Id. we statute limitations on the date of last or the next begun running payment payment to have Smither’s thereafter, 30, 2006, Asset’s lawsuit filed on was more than six May due date dates”). after both years case, Turning activity to the current the last on the account was a $50 120}
{¶ 28, 2006, Taylor on which as the last item on payment by qualifies Jarvis June the it, Taylor payment, accepted account. Jarvis tendered the and Chase with the adjust that Chase would the to the due on understanding apply payment balance Therefore, account. I would find that the of action against Taylor the cause accrued, run, Jarvis and the statute of limitations to on 2006. began June Thus, April the cause of action accrued after the effective date of the statute, 2305.03(B), borrowing applies R.C. and that statute the circumstances here, meaning Delaware’s statute of limitations controls and that the suit determine, It against Taylor untimely. necessary Jarvis was is therefore not 2305.03(B) does, as the of Pfeifer whether to causes opinion applies Justice R.C. of action that accrued but were not commenced before its effective date. if analysis focusing Taylor Even Jarvis’s last on the payment 121}
{¶ rejected, account is conclusion that the cause of action accrued when opinion’s Taylor failed to a minimum monthly payment problematic. Jarvis make Chase obviously did not conclude that this failure rendered the parties’ credit relation- Instead, ship irreparable. Chase continued to extend charging privileges Taylor Taylor Jarvis. It was not until Chase terminated Jarvis’s charging privileges relationship parties the credit between the came to end. The District has Appeal First Court California concluded the relevant date determining purposes when cause action accrues for statute-of-limitations settled; i.e., on an account is date open “the the debt becomes date has come to an end other than for relationship parties purposes between R.N.C., Cal.App.3d past Tsegeletos, amounts due or due.” Inc. paying (1991). analysis, this alternative the cause of CaL.Rptr. Applying run, accrued, began and the statute of limitations against Taylor action Jarvis day billing cycle last very April day earliest on after the Taylor charging privileges. terminated Jarvis’s As that closed before Chase well, statute such, applies analysis statute under this as Delaware’s borrowing And, controls, against Taylor untimely. and the suit Jarvis was of limitations 2305.03(B) applies whether necessary it is therefore not determine R.C. again, that accrued but were not commenced before its effective date. to causes of action respectfully I concur. Accordingly, *31 J., foregoing opinion. concurs in the O’Donnell,
O’Connor, C.J., dissenting. financial, social, legal of and complex This illustrates the nexus appeal commonly called the Great that have arisen the wake of what is phenomena from country considered to have been most severe this (generally Recession 2009), Americans with decreased through many 2007 June which left December of since the World engendered longest periods unemployment net worth and Warner, Recession Has Done to generally II era. What Great War See 6, 2010), http://www. available at Life, Magazine (Aug. New York Times Family nytimes.com/2010/08/08/magazme/08FOB-wwln-t.html?_r=2&ref=magazme& (accessed 12, 2016); Heavy, Dispatch Debt Is Columbus May see also Jobless 2014), 13, http://www.dispatch.com/eontent/stories/editorials/ (Aug. available (accessed 2016). 12, surprisingly, Not May 2014/08/13/jobless-debt-is-heavy.html unwilling they perhaps incurred debts that were unable —or many Americans —to American, one such but the appears in this case to have been pay. The decedent paid.2 debts were not why us does not establish her record before bonum,’ memory profession, our of “[A]lthough nil nisi be a maxim of 2. ‘de mortuis 180, 264, Post, 175, 2 781 spared.” Am.Dec. 1805 WL has Pierson v. 3 Caines deceased not been “(say) (N.Y.1805) J., dissenting) (using phrase translated as (Livingston, a Latin that has been Ed.1988)). (3d dead,” Dictionary College As the nothing good New World 367 but Webster’s notes, decedent, Jarvis, during pendency appeal. Taylor of this She majority died Sandra health, ill health was the reason poor we cannot assume that her have been the victim of but that she was the payments account at issue in this case or to make on the credit-card she failed appears in the record of in an affidavit that gullible of debt collectors. The decedent stated victim capacity bankruptcy more than a supervisory in a trustee’s office for in a this case she worked familiarity degree the law and affirmatively with that she had a considerable decade and stated suffering stroke although alleged after a serious legal processes. she that she became disabled And case, in this as well as February cause of action accrued that date was well after the cards. apparently accumulated on other credit defaulted on credit-card debt others in which she 664 amounts of in the unpaid The United States are In staggering.
2008, credit-card lenders “wrote off’ billion in about bad debt. Dash & $45 Martin, 10, Write-Offs, Banks Brace Credit Card New York Times (May 2009), at http://www.nytimes.com/2009/05/ll/business/llcredit.html?j,= available (accessed 2016). is, May troubling 0 As as that number financial institutions off about billion each from charged quarter early through early 2010. $20 Hauser, Debt, Drop Bank Losses Lead to in Credit Card New York (Seрt. Times 24, 2010), available at http://www.nytimes.com/2010/09/25/business/25credit.html (accessed 2016). May Terms as “charge-off’ such “write-off’ and are based on accounting
principles and are used to describe the situation in which a creditor has that a unlikely paid, usually determined debt is to be after days without payment, Fox, off’ “charges the account receivable as uncollectable. Do We Have A Cautionary Debt Collection Crisis? Some Tales Debt Collection in Indiana, (2012), 16; 24 Loy.Consumer Haneman, L.Rev. fn. The Ethical Consumer, (2008). Exploitation Unrepresented 73 Mo.L.Rev. The debt, however, real does not magically disappear. companies owed the debt suffer the loss of that money, ultimately they shift the burden of paying the debt to other through higher credit-card holders interest rates and fees. Fox at plenty 362. And there are of credit-card bearing holders that burden. average $5,700 debt; American household carried about credit-card about percent an average $15,000. households carried debt that was more than
Gabler, Americans, 2016), The Secret Shame Middle-Class The Atlantic (May of available http://www.theatlantic.com/magazine/archive/2016/05/my-secret-sha (accessed 2016). May Although the number of people holding me/476415/ credit-card debt decreasing years, has been over the last few notably, average debt for those households that carry do a balance has been on the rise. Id. In a then, sense companies credit-card are those charging people for both the costs they they incur as attempt pay off their debts and the costs that others incurred but pay. were unable to Companies engage common, also the sometimes unsavory, but now
{¶ 126} phenomenon debt, of “debt sales” in which a creditor sells an individual’s dollar, pennies private entity debt, to a that then attempts to collect the often the court through process. And the collection efforts include efforts to “charged-off’ collect debts:
See, (Feb. 2005) e.g., Capital Jarvis, Cuyahoga One Bank v. Falls M.C. No. 2004CVF03902 interest). $12,495.27 (entering judgment plus of investment, originating may
To of its lost lender sell recoup portion Buyer, usually part consumer loan to a Debt as of a charged-off portfolio loans, for a fraction of total amount owed to delinquent of consumer * * * Buyer purchased lender. Once a Debt has originating loans, in collection efforts portfolio may engage defaulted consumer (or so), borrowers, third-party locating hire a to do which include determining bankruptcy, commencing legal whether borrowers are portion or “otherwise of all or a of the proceedings, encouraging” payment delinquency. Snow, (D.D.C.2006), a memo Buyers’ quoting
Debt Assn. v. randum filed in the case. collectors, It first undisputable party somе debt whether unconscionably act in the party, unlawfully process attempting
third majority purchasers collect the debt. The raises valid criticisms of those debt financial “reap staggering profits by methodically cleaning who carcasses left Haneman, 73 Mo.L.Rev. at 713. years ago. abandoned” ignores But the characterization of the debt market majority’s if reality purchase many that there would be no debt to there had not been so fact, around. plenty go defaults on debts. there is of blame (“FTC”) results report The Federal Trade Commission’s recent majority which the study debt-purchasing industry, upon of a landmark 5,000 by large than debt heavily, analyzed portfolios purchased relies more debt 2009. The Structure and buyers three-year study period ending June (Jan. ii, 2013), at http://www. A-l available Buying Industry Practices the Debt ftc.gov/sites/default/files/documents/reports/structure-and-practices-debt-buying- 2016) (“Structure (accessed Prac- May industry/debtbuyingreport.pdf ”). 90 million consumer accounts had portfolios nearly tices Those contained credit- Sixty-two Id. at ii. of that debt was percent a face value of billion. $143 card debt. Id. purchasers, study makes clear that information received debt, is disputed the consumer had ever
including information about whether of the consumers many ways. only percent Id. at ii-iii. Yet 3.2 deficient *33 debts, in than half of the and the debts more purchased disputed whose debt was Debt-purchasing Id. at iv. by buyer. those cases were verified the debt only 0.8 percent of their debts and companies only percent disputed resold 2.9 Thus, buyers some debt undoubted- disputed although their unverified debts. Id. debts, vast of them did not. ly bought disputed majority the study purchased in the Similarly, buyers some debt involved although {¶ 131} old, than the FTC also years to collect debts that were more six attempted and buyers] purchased found that “most of the debt that did not to be appear [debt at beyond either old or the statute of limitations.” Id. worse, And, for can acknowledged buying better or FTC debt
{¶ 132} for thereby provided reduce creditors’ losses and allow more credit to be at i. consumers better rates. Id. Much more could be said about the business of debt but for buying, 133}
{¶ now, First, it suffices for two to be made clear.- the debt things market involves both the bad behaviors of consumers and the irresponsible tragedies responsi- Second, despite majority’s ble ones. recitation of the misdeeds imputation industry collectors and its broad-brush of those misdeeds to the as a whole, nothing in the record before us appellants establishes these —Cheek Offices, L.L.C., “Cheek”), attorney Hockenberry (collectively Law and Parri First (“FRIC”), Resolution Investment Corporation Management First Resolution acted in Corporation necessarily wrongly seeking to collect established debt. — injustices, I understand the with I majоrity’s indignation perceived but join analysis, cannot its which is the result it driven seeks to achieve rather than thoughtful precedent public policy. considerations of And therein lies majority’s grandiose the rub: statements and holdings, though intended to consumers, protect harm portend great vitally Ohio’s to them and to the important plaintiffs’ holdings inevitably applied precedent bar —the will as ways future cases in that will not friendly. be consumer I dissent. proper analysis of the claims this case should lead to the conclusion that Ohio law controls both the procedural aspects substantive and law, involved. I would timely hold under Ohio filed and that appellants therefore did not violate the Ohio Consumer Sales Practices Act (“OCSPA”), R.C. 1345.01 et Fair seq., the federal Debt Collection Practices (“FDCPA”), Act seq., by bringing U.S.C. 1692 et a time-barred suit against the decedent. I would also hold that did not violate appellants the OCSPA or the FDCPA requesting the rate of interest prayer relief complaint against the decedent that I they sought. judgment would reverse the of the court of appeals judgment appellants, and enter favor of as the trial court did.
ANALYSIS As trial recognized early in these proceedings, outcome this case turns on whether the law procedural and substantive of Ohio or that of another state controls.
667 Procedural Law Ohio Controls law procedural
Ohio’s
on statutes
limitations
of
key
majority’s
to the
in
holding
favor of the decedent’s estate is
statute,
2305.05,
that Ohio’s borrowing
applies
R.C.
in this case.
It does not.
settled,
It
is well
Ohio that the forum state’s statutes of limitations
which, here,
are to
applied
forum,
is Ohio. “The matter of the statute of
limitations
being question
remedy, it is universally
governed
considered to be
by
200, 201,
the law of the forum.”
Taft,
McCormick v.
61 Ohio
22
App.
N.E.2d
(1st Dist.1938).
510
Ohio,
Because the forum for the
underlying suit is
See,
Wood,
Ohio law controls the
question.3
e.g.,
statute-of-limitations
v.
Kerper
(“Statutes
613, 622,
(1891)
48 Ohio St.
through analysis a muddied that obfuscates the law debtor and creditor alike applies. majority so that it can hold that Delaware’s statute of limitations The accordingly reaches the outcome desired both and the decedent’s estate: time-barred when it filed its FRIC’s claims were decedent.
Application
borrowing
statute
of
2305.03(B)
here,
must
apply
necessarily
For R.C.
there
first be
jurisdiction
in a
than
finding that the cause of action accrued
different
Ohio. See
Co.,
(E.D.Ky.2001) (“borrowing
v. Internatl. Ins.
F.Supp.2d
Combs
jurisdiction”
of action
in another
triggered only
statute is
when
cause
accrued
(6th Cir.2004).
sic]),
trial
aff'd,
The Court finds that where primarily used [the decedent] card, the credit and decided to the minimum stop making required card, payments on her credit was where the agreement breach occurred. The fact that was to mail required payments [the decedent] Delaware does not determine where the breach occurred —or where the that, time, action accrued. There is evidence period some [the Illinois, mailing payments than decedent] rather Delaware. She Internet, could have also chosen to make her on the payments or to a telephone, Chase bank branch. The location where she sent her payments seems less in this case than significant place where [the stop making decided to payments. summary, decedent] the Court finds reason, actions accrued Ohio. For this [FRIC’s] Court finds that Ohio’sstatute of limitations applies present case. *36 sic.)
(Emphasis I agree with the trial court’s in approach grounded is law and {¶ 144} —which common lives, card, sense—that the location where the primarily debtor uses the and decides not to make the more payments significant is to the breach than the See, place payments where would have been sent if no there had been breach. Combs, e.g., 163 at F.Supp.2d 692-695. Because I would find that the cause of Ohio, action accrued in I that borrowing would hold the statute is inapplicable here. view, essence, Conversely, in majority’s is that Ohio consumers who
{¶ 145} Ohio, are applications solicited with credit-card in in complete applications Ohio, Ohio and mail the applications from then receive the credit cards in Ohio Ohio, and use the credit in cards nevertheless would be better served having the law of Delaware —or whichever they payments state mailed their apply to— claims from any arising the credit-card agreements. however, Notably, where a place incorporated creditor is
requеsts to receive its should not that payments controlling, given “Congress’ in purpose passing the FDCPA was ‘to debt collectors from prevent bringing ” in great collection suits forums located at distances from debtors’ residences.’ Colorado, L.L.C., 128, Harrington (D.Mass.2007), v. F.Supp.2d CACV 508 134 Wolhar, 1130, quoting (D.Del.1992), Dutton v. F.Supp. citing S.Rep. 809 1139 No. 95-382, 1695, at in reprinted Cong. 1977 & Adm.News 1699. And the U.S.Code statute was borrowing designed prevent plaintiff shopping from forum when Servs., plaintiffs claims have Miami expired, Valley Mobile Health Inc. (S.D.Ohio 2012). Worldwide, Inc., ExamOne 852 F.Supp.2d 932 statute, essence, majority acknowledges, borrowing As the Ohio’s in “directs forum court to ‘borrow’ the limitation of another state if the period 670 limitation is period in that state and that state’s foreign action accrued
cause of ¶ 37, citing at period.” Majority opinion limitation than the forum state’s shorter Law, L.L.C., at 702 Attorneys Thomas & Counselors Dudek v. Thomas & (N.D.Ohio Combs, 2010), F.3d at and CMACO citing F.Supp.2d (6th Cir.2009). 235, Am. 589 F.3d Sys., Wanxiang Corp., Inc. v. Automotive mandates a determination analysis precedent The better-reasoned Ohio, in an consumer in case accrued because Ohio that the cause of action this Ohio, in in made with card purchases a contract for a credit card executed considering court in Ohio, explained on the debt Ohio. As one and defaulted an of an employee credit card issued to dispute involving Chase choice-of-law applied signed “was for and agreement because the credit-card corporation, Ohio and, primary an its effect was. corporation, as the card was used Ohio Ohio Bank, N.A., 641, 646 Morgan F.Supp.2d Chase Heiges in Ohio.” v. JP 2007). (N.D.Ohio public-policy trial in this found that properly The case cause of action also the conclusion Ohio is where the support considerations accrued, was in Ohio. primary agreement effect of the credit-card because of the case and only aspect history looks to one of the majority dispositive. that fact—the where were sent—to be place payments elevates so, many strongly facts that indicate Ohio doing ignores compelling here, in this case: at all times relevant the decedent predominate interests Ohio, resident, card from her residence and her applied she on her account was a decision made payments decision not to make the due Ohio, Thus, to hold that the cause of action accrued proper Ohio. result is Ohio, Combs, 692-695; Heiges at and because it accrued 2305.03(B) and Ohio law controls the determination inapplicable R.C. *37 limitations, at of Combs 691. statute Groschner, 301, 91 majority clings The to Meekison v. 153 Ohio St.
{¶ 150} (1950), that there is abundant though recognized even Meekison itself N.E.2d where the contract is to be authority for the view that a cause of action accrues at 306. And Meekison is fundamen- or where the breach occurs. Id. performed note, in it executed simple from this case because involved tally distinguishable residents, months later “at required paid that was to be six Michigan by Michigan terms of the note. Id. 302-303. Napoleon, pursuant explicit Ohio” litigation involving simple, promisso- In short-term contracts like basic {¶ 151} notes, vitality But it little in the rule stated in Meekison works well. retains ry cases, which arise from month- contemporary the context of credit-card-collection and the ly purchases of credit advanced lenders to consumers accountings credit, that routine defaults on the interest or other that accrue with charges and creditors to frequent inability and the of consumers required payments, maintain of adequate underlying establishing records the contracts credit-card It in today, accounts. is no wonder that until no court America has applied ever debt; in a reported involving Meekison decision a credit-card and it has been 35 years since an cited in appellate any last Meekison context. Its holding imported should not be to the credit-card context presented by this case. Improper Application of Substantive Law Despite majority’s the haste to conclude that the cause of action in
accrued Delaware and therefore that Delaware law controls the statute of limitations, majority ignores then Delaware law in its analysis of the substantive issues before us. I am left to wonder if the why, cause of action Delaware, majority’s analysis accrued is absolutely any devoid discussion of Delaware substantive law. This is of concern that particularly given attorneys provided decedent’s the trial court with a Chase agree- “cardmember court, filing ment” as exhibit to a that and that agreement clearly states that the terms and enforcement of the cardholder agreement the decedent’s law, “AND, account THE governed by were federal TO EXTENT STATE LAW * * * APPLIES, DELAWARE, THE LAW OF WHERE WE AND YOUR LOCATED, ACCOUNT ARE APPLY MATTER WILL NO WHERE YOU sic.) THE I (Capitalization LIVE OR USE ACCOUNT.” suspect Delaware law in its it majority wholly ignores analysis because cannot use be, Delaware law to reach the result it wants. its it is reasoning Whatever majority applies any clear Ohio law to the substantive issues without explanation of Ohio law controls. why assuming Even Ohio law controls the resolution of the substantive
issues, majority’s analysis unsatisfying. is majority erroneously any concludes that cause of action payments decedent accrued Delaware because the decedent failed make so, doing ignores premised
to Chase Delaware. the record before us— when, its belief that all of the decedent’s were sent to payments Delaware— fact, attorneys during discovery the decedent’s submitted a document obtained Illinois, the trial сourt that she mailed to Delaware and establishing payments and the trial court relied on that evidence in where the cause of considering If, concludes, action accrued. as the majority place payment dispositive, majority why analysis. then the should address Illinois law is irrelevant to the aside, But that opinion’s analysis the lead the date the cause action accrued this case is not sufficient. discovery FRIC contended that the cause of action accrued on during
{¶ 156} *38 1, 2005, minimum January the date that the decedent “first failed to make her [monthly] payment obligation.” and defaulted on her The decedent did not date, clearly dispute that but in her amended counterclaim FRIC and 10, “at the Cheek, August that the cause of action accrued latest” alleged she But delinquent on the account. 2006, payment one month after her last date that 2006 date was the date the cause of never established the decedent accrued, that assertion that the causé of and she never established FRIC’s action trial court found that the cause of action accrued in 2005 was erroneous. The adopts and the lead that as the time of January opinion action accrued accrual. agrees majority’s with the concurring opinion The author of 157}
{¶
opinion
this
that the author of that
analysis
disposition
appeal, except
of
28, 2006,
action did not accrue until June
the date on
asserts that the cause of
payment.
report produced by
made her last
the FTC
which the decedent
in the
is
suggests
expressed
concurring opinion
earlier
the view
mentioned
i.e.,
states,
that “a
on a time-
partial payment
with the law of most
consistent
for a new
of limitations
revives the entire balance of the debt
statute
barred debt
at
appellate
and Practices
47. And
least one Ohio
period.” Structure
Hottenroth,
v.
Funding,
has
a similar view. Midland
L.L.C.
2014-Ohio-
adopted
¶
(8th Dist.)
making
partial payment
of a
(“Typically,
26 N.E.3d
expires
implied
on an
account before the statute of limitations
extends the
open
amount, acting to renew the statute of
promise
pay
the balance owed
case, 142
and held
decision in this
period”), appeal accepted
limitations
for
973;
1464,
limitations need adopted by with it is I use the time of accrual concurring expressly correct. solely evaluating propriety aspects lead of other opinion purposes opinion. lead accrual, If correct in its determination of the time of opinion the lead summary analysis application the retroactive opinion’s permitting
the lead borrowing proper.4 statute is not Ohio’s concurring opinion’s analysis places accrual
4. The of the date the cause of action accrued date borrowing statute. after the effective date
673
statute,
2305.03(B),
borrowing
Ohio’s current
R.C.
became effective on
7,
80,
Laws,
V, 7915, 7930-7931,
No.
Part
April
2005. Am.Sub.S.B.
150 Ohio
8037;
Dudek, 702
F.Supp.2d
borrowing
applied
see
836. The
statute cannot be
to
an
retroactively
deprive
party
right
to sue on
accrued substantive
Constitution,
II,
for breach of contract.
right, including
See Ohio
Article
Section
(“The
laws”);
Assembly
power
pass
28
General
shall have no
to
retroactive
Flowers,
48,
(1972),
Gregory v.
32 Ohio St.2d
It
pronouncement by
is well-established
the absence of a “clear
that a
Assembly
applied retrospectively,
General
statute is
be
statute
LaSalle,
may
applied prospectively only.”
be
State v.
96 Ohio St.3d
[
{¶
to invoke Delaware’s statute of
linchpin
analysis designed
of its
statute —the
opinion
more than three months
the date the lead
deter-
limitations —was
after
retroactively applies
cause of action accrued. But it nevertheless
mines the
“ ‘
*40
blithely asserting
period
to
of limita-
borrowing
appellants,
“[a]
statute
legislature”
long
also
shortened
the
as
as “a
already running may
tions
”
begin
to allow a reasonable time to
suit” is allowed.’
sufficiently long
period
¶ 57,
MetroParks,
at
ex rel. Nickoli v. Erie
124 Ohio
opinion
quoting
Lead
State
¶
449,
long,” particularly
only
three
halves Ohio’s
limitations,
claim
life into the
breathing
but also obliterates FRIC’s
while
borrowing
employed
decedent’s counterclaims. The
statute cannot be
retroac-
234, 237,
tively
Matvejs,
to create such a result. See
56 Ohio St.2d
Cook
(1978). Indeed,
prior holding
N.E.2d 601
the lead
itself
our
opinion
quotes
“ ‘
the
new laws that ‘reach back and create
“retroactivity clause nullifies those
burdens,
duties,
at
obligations,
existing
new
new
new
or new liabilities not
” ’ ”
added.)
time
statute becomes
(Emphasis
opinion
[the
Lead
effective].’
¶ 55, quoting
Boyce,
Tobacco Use Prevention & Control Found. Bd. Trustees v.
¶
511,
No Violation of
Consumer-Protection
Statutes Occurred
Case
matter,
collectors,
I agree,
general
including attorneys
as a
that debt
collections,
engaged
debt
can be held liable under both the OCSPA and the
Jenkins,
FDCPA. Heintz v.
514 U.S.
115 S.Ct.
and therefore to a claim. More statutory give potential abuse-of-process violation or can rise fact that to this court’s prior before us is the importantly appellants bringing a debt collector holding today, ample precedent support there was for a that was less than six suit in an Ohio court Ohio debtor it sanetionable under the suit was not frivolous—nor was years Appellants’ old. imposed not be Liability was filed.5 should civil rules —when an outcome to this sufficiently prescient predict for not appellants being these likely expect. of this court did not justices that even most appeal of the amount of interest set forth Turning my focus to the issue for 24 interest percent the notion that FRIC’s demand prayer complaint, *41 and the to this suit violated the FDCPA OCSPA complaint giving rise estate that FRIC I with the decedent’s analysis. Although agree more requires in claimed that it to interest at the rate ultimately did not establish was entitled majority’s contention—and the I with the estate’s complaint,6 disagree violated the complaint potentially that rate in a demanding determination —that FDCPA and the OCSPA. cause, pursuant plaintiff alleged good court sanction the If without
5.
a falsehood
Inc.,
Landscapes,
F.Supp.2d
Argentieri
15
63
v. Fisher
Rules of Civil Procedure. See
(D.Mass.1998)
they
imposed under
(declining
impose
were
sanctions under the FDCPA because
conclusion,
11).
legal
judgment,
plaintiff
particular
that a
“demands” a
But the fact
Fed.R.Civ.P.
interest, costs,
fees,
attorney
relief,
damages,
does not
compensatory
punitive
or
whether in
or
attorney
showing
requested
there is a clear
relief the basis for sanctions unless
make the
known,
by
knew,
supported
the law.
was not
making
or should have
that the demand
the demand
Civ.R. 11.
See
1343.03(A)
here,
interest
provides,
exceptions
that a creditor is entitled to
not relevant
6. R.C.
with
statutory
pursuant
5703.47 or the interest
in
rate as determined
to R.C.
on an account
either the
Collections,
See, e.g.,
parties.
between the
United
rate set forth in a written contract entered
¶
L-04-1314,
distinguishable from other conduct a debt collector in. may engage As one explained federal district court Ohio has a claim that dismissing FDCPA based on the collector’s for prayer relief: prayer representation for relief does not constitute a
[A] the defen- listed, pay dant must the amount nor that the creditor is entitled to these additional amounts. The for prayer relief is not demand to the debtor Rather, prayer himself. for relief is what it purports prayer to be—a request directed to the court. The FDCPA does not extend protection See, to communications to e.g. courts. O’Rourke v. Palisades Acquisition XVI, L.L.C., (7th Cir.2011) (“the 940-41, 635 F.3d Fair Debt Collection Practices Act does not extend communications that would confuse or judge”). mislead state court (N.D.Ohio 2014).
Hrivnak v. Mgt., NCO Portfolio Another federal explained district has the rationale for rejecting argument that a debt collector violates the FDCPA a claim for making attorney fees to recover the debt from the creditor: A prayer relief even complaint, specifies quantity where *42 fees, attorney’s just is that: a to a request party third court—for —the consideration, not a demand to the A request debtor himself. for attor- ney’s ultimately fees upon rests the discretion of the court a and determi- nation applicability of at a later of stage litigation. The whole purpose of regulating debt collection was to a “supervise” range unsupervised of contacts, such as demand letters late-night telephone and calls. contrast, a statement in a pleading supervised by is the court and monitored counsel. The two situations are drastically different. (Footnote omitted.) Inc., 55, v. Argentieri Landscapes, Fisher 15 61- F.Supp.2d (D.Mass.1998.) 62 country adopted Other federal courts around the have rationales 169}
{¶ See, Abramson, v. & Argentieri. e.g., Sayyed Wolpoff similar to Hrivnak and (D.Md.2010) L.L.P., 635, that a for (holding prayer attorney court, “a a request fees was directed to the not communication direсted debtor, Partners, a v. certainly misrepresentation”); and not Winn CCR Unifund (Mar. 2007) (a 30, 06-447-TUC-FRZ, 974099, prayer D.Ariz. No. CV 2007 WL *3 a purports ‘prayer’ request for relief “is what it to be—a for certain amount fees”); Davis, 1:06-cv-0081-JDT-TAB, 2006 attorney’s Rael v. S.D.Ind. No. WL 2006) 2346396, 11, attorney *5 that a for fees in a (Aug. (holding request court, debtor, a complaint request noting was a not demand on the and ultimately would on future events and the request depend “resolution noted, judgment judge”). of the state court As the Seventh Circuit has * * * Whatever shorthand in the was harmless rather appeared complaint debtor], astray. than an effort to lead It was the not anyone judge, [the owed, who had to be able to determine to whom the debt was for it is the (or court) judge prepares clerk of rather than the defendant who judgment specifying party the relief to which the is entitled. prevailing (7th Blatt, Hasenmiller, Moore, L.L.C., 470, F.3d Beler Leibsker & Cir.2007). prayer a few cases have addressed the context of a for Only specific I complaint agree
interest that seeks to collect a debt. with those have to cases in which interest adopted applied Argentieri and rationale P.A., See, Maryland, in a Hart v. Rehab D.Md. sought complaint. e.g., Pacific 2013) ELH-12-2608, 13, (holding request *23 that a (Sept. No. 2013 WL request interest in a is akin to a to a court for prejudgment complaint attorney improper representation); fees and is not actionable as an FDCPA Bird Pressler, L.L.P., 12-CV-3007(JS)(ETB), v. Pressler & E.D.N.Y. No. 2013 WL 2013) *2 (May finding no FDCPA violation (applying Argentieri is a complaint’s “prayer pre-judgment request because for relief interest Court”). upon the way, “aspirational” Put another demands made are Law
requests, not absolute statements of entitlement. Cisneros v. Neuheisel (Jan. 2008) Firm, P.C., CV06-1467-PHX-DGC, D.Ariz. No. 2008 WL *3 binding “fact that the amount is no more (noting prayer alleges special Plaintiff than factual in the and that “the any allegation complaint” other if it agency what the collection seeks prayer aspirational for relief is describes —it just relief as the Court deem prevails, including ‘such other and further ”). proper’
678
Indeed,
not a
long
prayer
dispositive
law has
held that the
is
Ohio
no
of the cause of
prayer
petition
part
the
“The
of a
portion
complaint.
thereof,
action,
remedy
legal
or the
merely
object
sought
but
indicates the
forth in the
It is a mere incident to the
consequences
petition.
of the facts set
227, 229,
v.
27
Law Abs.
Argentieri and instead upon Agency, relied Foster D.B.S. Collection (S.D.Ohio 2006). majority embraces as well. But Foster wholly Foster is here. inapposite 1692e(2)(b) The court in Foster found that a violation of 15 U.S.C.
occurred because a for made request attorney upon interest —was fees—not fact an despite categorically the debtors that such fees were barred statute, attorney former 1301.21 creditors from fees (proscribing recovering R.C. debt). family incurred or household” Id. at during litigation “personal, collect that the demand in the com- 802. Foster turned the court’s determination fees, plaint attorney though “constituted absolute entitlement even such fees are not recoverable under Ohio law.” Id. *44 the other courts that have found liable Similarly, parties potentially based on in have focused on the fact that prayers complaints
under
FDCPA
in
sought
prayers
impossible
improper
the relief
or
as a matter
law.
of
See,
Partners,
v.
e.g., LeBlanc
CCR
601 F.3d
1195-1198
Unifund
(11th Cir.2010)
could
from a
to file a
(liability
arise
debt collector’s threat
lawsuit
statutory
when the debt collector had failed to
with a
to
comply
requirement
suit);
register as a debt collector and therefore could not
Bradshaw
legally bring
(D.Md.2011)
Receivables, L.L.C.,
v. Hilco
765
729-730
F.Supp.2d
(viewing
of a
“a
filing
required statutory
debt-collection lawsuit without the
license as
* * *
legally
threat
to take
action that cannot
be taken” under 15 U.S.C.
Rankin,
(D.N.M.1995) (a
1692e(5));
Russey v.
911
1454
F.Supp.
collector’s letter
to
a
threatening
file
collection lawsuit when the debt collector
not
a
in
legally
could
file
lawsuit
its own name was
action that could not
be
taken).
(a
Harrington,
See also
508
at 136
fraudulent motion for
default
a
that
in
judgment
legally
is
“threat
take action
cannot
be taken”
1692e(5)).
violation of 15 U.S.C.
relies
on
in
majority
heavily
the Sixth Circuit’s decision Stratton
(6th Cir.2014)
Assocs., L.L.C.,
that a
Recovery
Portfolio request mere for interest that is not available violates the FDCPA. complaint Stratton, But as Batchelder in her dissent in that is built Judge explained opinion shaky foundations: Particularly majority’s holding is the that Stratton has stated pernicious 1692e(5). 1692e(5) § a claim prohibits under Section [15 U.S.C.] “[t]he threat action that cannot taken or that is not any legally take case, however, PRA actually intended to be taken.” this filed state complaint; did not threaten to do so. F.3d Corp., We instructed Hartman v. Great Seneca Financial (6th Cir.2009), FDCPA, begin we interpreting “[w]hen omitted). (internal marks language quotation with the of the statute itself.” false, § Although broadly prohibits using “any 1692e a debt collector from with the deceptive, misleading representation or or means connection 1692e(5), debt,” § a violation of which any pleaded collection Stratton majority right that we specifically requires a “threat.” The specifically which is not addressed” “proscribe improper other conduct 1692e, § alleged § has not a violation of 1692e under but Stratton 1692e(5) textual majority ignore specific § does not authorize the requirement. must majority
To hold that PRA threatened to take action the illegal (1) meaning can be a “threat” within the filing complaint mean either (2) 1692e(5) 1692e(5), already § § even actions that have been penalizes taken. Neither is trae. proposition
[*]
[*]
[*]
is itself a “threat” within the
filing complaint
We have never held
1692e(5).
authority
majority’s
§
for the
con-
The source
meaning
Javitch, Block,
opinion
conclusion is our
Gionis v.
trary
unpublished
(6th Cir.2007).
Rathbone, LLP,
But Gionis the actual
Fed.Appx.
in an
attorney
appeared
“threat” to recover unauthorized
fees
affidavit
itself.
said
appended
complaint,
explicitly
not
We
fees was made in the
attorney
the “unlawful ‘threat’
collect
*45
Affidavit,”
to communicate
with the
directly
id. at
which was intended
debtor;
not itself the “threat.” Both Foster v.
complaint
the
D.B.S.
(S.D.Ohio 2006),
Agency, 463
783
and Poirier v. Alco
Collection
(5th
Collections, Inc.,
Cir.1997),
similarly distinguishable.
(Emphasis
dissenting).
allegation, subject
being
or
admitted
denied
and then
opposing party
clarified through
discovery
process
subsequent litigation.
Hillin
See
(2d
1939).
v. Beightler,
Dist.,
32 Ohio Law Abs.
Cty.,
WL 8086
Franklin
Indeed,
employed
the decedent
this
understanding
same
her class-
throughout
counterclaims,
action
asserting allegations based on
facts
purported
(e.g.,
debt)
decedent’s averment of how a
buyer paid
legal
for her
conclusions
(e.g., the decedent’s assertions that
engaged
FRIC and Cheek had
in deceptive
acts and
subject
punitive
should be
damages). Nothing
required
more was
the decedent
quite properly
equity
so. But
requires
nothing more
required
should be
of FRIC.
state,
Lastly,
majority ignores
is a notice-pleading
State
¶
Gall,
Yeaples
ex rel.
141 Ohio St.3d
23 N.E.3d
(O’Neill, J.,
St.3d,
dissenting), citing Cincinnati v. Beretta
Corp.,
U.S.A.
95 Ohio
¶
416,
under the and not attach prayer complaint FDCPA OCSPA does when the sets forth the if simply plaintiff proves relief seeks its case.
CONCLUSION Debt collection can be a hardhearted debt collectors business. When laws, However, consumer-protection they violate should be held accountable. no particular violations occurred this case. very and the lead very large complex problem, its efforts solve 183}
{¶ analytical precedent providing makes over mountains of without opinion leaps satisfying Delaware’s statute of limitations controls causes of action explanations: (or because consumers have mailed should simply based on credit-card debt Ohio mailed) state; Wilmington have in that statute can payments borrowing Ohio’.s retroactively applied only deprive plaintiffs be to not of their causes of action but before; subject liability liability requests also to them to where was not clear and fees, by plaintiffs attorney attorney for relief made for —whether interest, or used to punitive damages liability against establish —can attorney’s well as the client. attorney as else, if nothing precedent today If it seems ironic that established cases, court is in future consumers and will lose faithfully applied plaintiffs law that a
many provided through opinion benefits them same majority evidently of this court believes will save them. J., foregoing opinion. concurs
French, Jr., Burke F. Horrigan, Horrigan, appellee. & James Burke and John J. for L.P.A., Co., Turner, Surdyk, Jeffrey Dowd & Turner C. John Langenderfer, Lantz, A. appellants Corporation and Kevin for First Resolution Investment and First Resolution Management Corporation. L.L.C.,
Law of Boyd Gentry, Boyd Gentry, appellants Office W. and W. Offices, L.L.C., Law and Parri Hockenberry. Cheek DeWine, General, Hendershot, Attorney
Michael Deputy Michael J. Chief Solicitor, Dickens, Heffernan, Loeser, M. A. Tracy Jeffrey Brittany Teresa Steele, General, M. Wright, Attorneys urging Melissa G. Assistant affirmance for amicus curiae state Ohio. Co., L.P.A.,
Burdge Law and Ronald L. Burdge, urging Office affirmance for amicus curiae AARP.
Sessions, Fishman, Israel, L.L.C., Slodov, Nathan & and Michael D. urging Attorneys reversal for amici curiae Ohio Creditors Association and DBA Interna- tional.