amyw

Sued by JDB in Ohio. Questions on SOL!

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 Yesterday I got the summons from a JDB. It is about a citi credit with last activity in 01/2009. I have a few questions related to SOL, and will really appreciate everyone's help and suggestion:

 

1. The SOL in South Dakota is 6 years. However, in Ohio, some say it is 6 years, but there are also statement that credit card is considered written agreement so SOL in Ohio is 15 years . I would appreciate if anyone can help me to figure out this SOL for credit card in Ohio, especially if there are any case laws....

 

2.Even if SOL in Ohio is 15 years, or if it would be difficult for me to argue SOL in Ohio court, can I use a CITI card agreement to argue that the SOL in South Dakota should apply, since the agreement states that the law in South Dakota governs it?

 

3. If I go with arbitration, can I win simply because SOL has passed? 

 

4. I can only find a CITI card agreement in 2009, would anyone have agreement between 2005 and 2009? Or the 2009 agreement can work in my case?

 

Thank you for any comments/suggestions!!!

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You're protected by the Statute of Limitations. No need to worry about arb, you'll win in court.

 

Credit card is going to be oral contract- 6 years. http://codes.ohio.gov/orc/2305.07

 

Written Contract. Effective September 28, 2012, the SOL decreased from fifteen (15) years to eight (8) years after the cause of action has accrued. Creditors have 8 years from the date of the enactment to sue,unless the old SOL arises sooner. O.R.C. § 2305.06.

 

Does Ohio law apply to Statute of Limitations?

In Ohio, the legislature has enacted a “borrowing statute” under O.R.C. §2305.03 b, which specifies that no cause of action that accrued in another state may be maintained if the SOL has expired in that jurisdiction. This is important in suits based upon a written contract where such contract expressly designates that its terms are governed by a particular state’s laws.

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It looks like in Ohio the credit card standard for written contract (Unifund v. Hemm) is if they can produce a written application with signature. That would get 8 years but the South Dakota 6 year limit allowed by O.R.C. §2305.03 b gets you back into time barred debt.

Unifund v. Hemm:

http://scholar.google.com/scholar_case?case=18314452679073735333&q=2305.07+credit+card&hl=en&as_sdt=4,36

 

There is an attachment with pleadings requirement in the civil procedure code-

Hemm's motion to dismiss claimed that Unifund failed to attach copies of the account or written contract to its complaint, in violation of Civ.R. 10(D). She further claimed that Unifund failed to provide these items pursuant to a request for discovery. Thus, she contends that the trial court was required to dismiss the complaint.

Civ.R. 10(D) provides that "[w]hen any claim *** is founded on an account or other written instrument, a copy of the account or written instrument must be attached to the pleading. If the account or written instrument is not attached, the reason for the omission must be stated in the pleading."

As previously noted, we agree that Unifund failed to attach any document that would support a finding of a written contract. It further failed to attach any document that would prove the existence of an account. However, prior to the filing of the motion to dismiss, Unifund did submit copies of some of the account monthly statements, which could be used to prove the existence of an account.

 

 

 

and don't forget this is a JDB so they have to prove standing.

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Thanks for the help!!! Really appreciate it!

 

Should I then just file my answer mentioning SOL in affirmative defense?

 

OR should I file a motion to dismiss using SOL?

 

Or should I do both?

 

 

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See all threads by @OhioLawsuit and and @ohio ohio.  Click on the "ohio" button next to your thread title.

 

You may want to consult with a consumer lawyer about time-barred debt.  You may have a FDCPA violation for which they would represent you on contingency, meaning they get paid by suing the JDB.  www.naca.net

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Thanks, everyone!!!

 

With the summons, JDB attached:

-- bill of sale and affidavit; of course, none of these mentioned my name or account number

-- several credit card statements; these statements in fact clearly shown when the last activity was.

 

I will start contacting attorneys. Meanwhile, in case no one will take my case, I will read the threads related to cases in Ohio and start preparing my answers.

 

I assume that it will be OK for me to use affirmative defense to argue that SOL passed and file a counterclaim that the JDB violates FDCPA. Will need to figure out how to do a counterclaim, though.

 

Any advice will be welcome!!!

 

Thanks again!

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@amyw try to avoid bankruptcy attorneys. I'd read posts from them saying a credit card is a written contract in Ohio because a cardmember agreement is in writing, as in printed on paper.

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