Unifund CCR Partners v. Piaser

[Cite as Unifund v. Piaser, 2018-Ohio-3016.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

UNIFUND CCR PARTNERS, et al., : OPINION

Plaintiffs-Appellees, :
CASE NO. 2016-A-0076
- vs - :

LISA R. PIASER, :

Defendant-Appellant. :

Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2010 CV
80.

Judgment: Affirmed.

Alan H. Abes and Elizabeth M. Shaffer, Dinsmore & Shohl, LLP, 255 East Fifth Street,
Suite 1900, Cincinnati, OH 45202 (For Plaintiffs-Appellees).

Robert S. Belovich, 9100 South Hills Boulevard, Suite 320, Broadview Heights, OH
44147; and Anand N. Misra, The Misra Law Firm, L.L.C., 3659 Green Road, #100,
Beachwood, OH 44122 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Lisa R. Piaser, appeals the judgment of the

Ashtabula County Court of Common Pleas in favor of appellee, Unifund

CCR Partners, et al. (“Unifund”), denying in part her motion for class

certification on her counterclaim for violations of the federal Fair Debt

Collection Practices Act (“FDCPA”). At issue is whether the trial court

abused its discretion in denying class-action certification to the “Time-Bar
Class” identified in Ms. Piaser’s motion. For the reasons that follow, we

affirm.

{¶2} On October 15, 2009, Unifund filed a complaint against Ms.

Piaser in the Ashtabula County Municipal Court to collect an alleged credit

card debt. The account was opened in April 2000, and the last payment

she made was on July 5, 2000, leaving a balance of $267. Unifund

alleged that Providian National Bank was the original creditor and that

Unifund purchased the account from Providian.

{¶3} In her first amended answer and counterclaim, Ms. Piaser

denied the material allegations of the complaint. She also asserted

individual and class counterclaims, alleging Unifund violated the FDCPA,

and the Ohio Consumer Sales Practices Act (“CSPA”) and committed

various common law torts. Ms. Piaser alleged Unifund is a debt collector

under the FDCPA, and is in the business of acquiring and collecting

defaulted consumer credit card debt. She alleged that Unifund violated

the FDCPA by filing actions against her and others that were barred by the

statute of limitations and without obtaining an assignment of their

accounts. Ms. Piaser prayed for damages and injunctive relief. Upon

assertion of her counterclaims, the municipal court transferred the case to

the common pleas court.

{¶4} Ms. Piaser admitted in deposition that she opened a credit

card account with Providian in April 2000 during a telephone solicitation

and that after the card was sent to her, she received monthly statements

at the address she provided to Providian. She admitted she incurred

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several charges on the account. She made payments between April and

July 2000, when she sent her last payment.

{¶5} Jeffrey Shaffer, Unifund’s Vice-President of Operations,

stated via affidavit that in 2004, Unifund purchased Ms. Piaser’s account

from Providian. At that time Providian sent Unifund electronic information

regarding the account, including Ms. Piaser’s name, address, phone

number, social security number, account number, balance ($267), interest

rate (11.99%), and the date (July 5, 2000) and amount ($105) of her last

payment. Ms. Piaser admitted the accuracy of this information in her

deposition. Providian also provided Unifund with a copy of an Account

Agreement containing the written terms and conditions applicable to Ms.

Piaser’s account. He said that, based on the April 6, 2000 date on which

Ms. Piaser opened her account and further based on the time period

during which the account agreement applied, the account agreement

Providian provided applied to her account. He said that Unifund attached

to the complaint a true and accurate copy of the account agreement.

{¶6} On September 1, 2010, Unifund filed a motion for summary

judgment on Ms. Piaser’s counterclaims. On June 28, 2013, the trial court

entered summary judgment in Unifund’s favor on Ms. Piaser’s common

law claims, leaving only her counterclaims for violations of the FDCPA and

the CSPA. Further, in its summary judgment entry, the court made

findings regarding the Time-Bar Class. Ms. Piaser alleged in her

counterclaim that Unifund knowingly filed a time-barred collection suit

against her. Unifund argued on summary judgment that its claim was not

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time-barred because it was filed within the 15-year statute of limitations

governing written contracts. In contrast, Ms. Piaser argued the claim was

time-barred by the six-year limitations period governing oral contracts or

the three-year limitations period under New Hampshire law. The court

found the account agreement was subject to the 15-year statute of

limitations.

{¶7} On January 16, 2014, Ms. Piaser filed a motion to compel

discovery, in which she sought additional information regarding, inter alia,

the Time-Bar Class. On September 4, 2014, the court held that further

discovery on this issue was not appropriate because the court had already

decided that the complaint was properly filed within the 15-year statute of

limitations.

{¶8} On December 14, 2014, Ms. Piaser filed a motion seeking to

certify her counterclaims as a class action and Unifund filed a brief in

opposition. Despite the court’s earlier ruling that Unifund filed its claim

against Ms. Piaser within the statute of limitations, Ms. Piaser sought to

certify the Time-Bar Class, alleging that Unifund sued her and other class

members outside the statute of limitations. She also asked the court to

certify another class, which she called the “Incompetence Class,” alleging

that Unifund sued her and others without a valid statutory assignment of

the debt.

{¶9} On December 6, 2016, the trial court entered judgment on

Ms. Piaser’s motion to certify. The court: (1) denied Ms. Piaser’s motion

to reconsider the court’s June 28, 2013 judgment finding that Unifund

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timely filed its suit within the 15-year limitations period; (2) denied her

motion to certify the Time-Bar Class; and (3) granted her motion to certify

the Incompetence Class, but only as to her claim under the FDCPA, not

as to her claim under the CSPA. Thus, the class action would proceed

only as to the Incompetence Class on Ms. Piaser’s claim for a violation of

the FDCPA.

{¶10} Ms. Piaser appeals: (1) the trial court’s 2013 judgment

finding the 15-year statute of limitations applied; (2) the 2014 judgment

denying her motion to compel discovery regarding the Time-Bar Class;

and (3) that part of the 2016 judgment denying her motion for

reconsideration of the court’s 2013 judgment applying the 15-year statute.

She asserts two assignments of error. For her first, she alleges:

{¶11} “The trial court erred to the prejudice of defendant-appellant

in finding that the Time-Bar Class failed the class certification requirement

that the named representative must be a member of the class.”

{¶12} As a preliminary matter, the only judgment that is

immediately appealable is the trial court’s 2016 judgment on Ms. Piaser’s

motion for class certification. Ms. Piaser appeals the court’s judgment

denying certification to the Time-Bar Class. Unifund also appealed the

court’s judgment certifying the Incompetence Class, and that appeal will

be addressed in a separate opinion.

{¶13} In Ms. Piaser’s notice of appeal, she stated she was

appealing the 2013 and the 2014 judgments “to the extent they relate to

class certification.” She also indicated in her docketing statement that

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the three appealed judgments were subject to immediate appeal under

R.C. 2505.02(B)(5) as orders determining that an action may or may not

be maintained as a class action.

{¶14} An order is final when it satisfies one of seven categories set

forth in R.C. 2505.02(B), including R.C. 2505.02(B)(5), which provides:

“An order is a final order * * * when it is [a]n order that determines that an

action may or may not be maintained as a class action.” Courts construe

R.C. 2505.02 strictly to allow immediate review of only “the initial

determination regarding whether an action may be maintained as a class

action.” Strickler v. First OhioBanc & Lending, Inc., 9th Dist. Lorain No.

15CA010893, 2016-Ohio-5876, ¶13. Thus, courts routinely dismiss

appeals that use R.C. 2505.02(B)(5) as a means to review orders that did

not initially determine whether claims could be maintained as a class

action. Gabbard v. Ohio Bureau of Workers’ Comp., 10th Dist. Franklin

Nos. 02AP-976 and 02AP-1168, 2003-Ohio-2265, ¶33 (“R.C.

2505.02(B)(5) allows appeals from the initial decision to certify or not to

certify a class, but does not provide for an appeal of [a] trial court’s

decision to modify or not to modify the class membership.”).

{¶15} The 2013 judgment entered summary judgment against Ms.

Piaser as to some of her claims and made a finding regarding the statute

of limitations applicable to Unifund’s claim. The 2014 judgment simply

denied Ms. Piaser’s motion to compel discovery. Neither of these

judgments determined whether Ms. Piaser’s action may be maintained as

a class action. Further, neither of these judgments complies with any of

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the other categories of final orders in R.C. 2505.02(B). In addition, even if

these judgments were final, this court would not have had jurisdiction to

address them because they were not appealed within 30 days of their

entry and thus were not timely filed per App.R. 4(A)(1). In fact, the appeal

of both prior judgments was filed more than two years late. Moreover, the

2013 judgment denying some, but not all, of Ms. Piaser’s claims was not

final because it did not include the “no just reason for delay” language in

Civ.R. 54(B). Under that rule, the court may enter final judgment as to one

or more, but less than all, claims upon a finding of no just reason for delay.

Because the 2013 entry did not include the Civ.R. 54(B) language, that

judgment was not a final order. Further, Civ.R. 54(B) did not apply to the

2014 discovery order because it did not adjudicate any claims. For these

reasons, the 2013 and the 2014 judgments are not final, appealable

orders and this court does not have jurisdiction to address them.

{¶16} The Supreme Court of Ohio has held that “[a] trial judge has

broad discretion in determining whether a class action may be maintained

and that determination will not be disturbed absent a showing of an abuse

of discretion.” Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200 (1987),

syllabus. Thus, appellate courts generally give trial courts broad discretion

in deciding whether to certify a class. Hamilton v. Ohio Savings Bank, 82

Ohio St.3d 67, 70 (1998). The Ohio Supreme Court has stated that “the

appropriateness of applying the abuse-of-discretion standard in reviewing

class action determinations is grounded * * * in the trial court’s special

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expertise and familiarity with case-management problems and its inherent

power to manage its own docket.” Id., citing Marks, supra, at 201.

{¶17} However, “the trial court’s discretion in deciding whether to

certify a class action * * * must be exercised within the framework of Civ.R.

23. The trial court is required to carefully apply the class action

requirements and conduct a rigorous analysis into whether the

prerequisites of Civ.R. 23 have been satisfied.” Hamilton, supra. Where

the trial court’s written decision granting class certification provides an

articulated rationale sufficient to support an appellate inquiry into whether

the relevant factors were properly applied, the trial court does not abuse

its discretion in conducting its rigorous analysis. Baughman v. State Farm

Mut. Auto. Ins. Co., 88 Ohio St.3d 480, 483 (2000). However, when a

court’s judgment that would ordinarily be reviewed for an abuse of

discretion is based on an erroneous interpretation of the law, we apply the

de novo standard of review. Medical Mutual of Ohio v. Schlotterer, 122

Ohio St.3d 181, 2009-Ohio-2496, ¶13.

{¶18} “The following seven requirements must be satisfied before

an action may be maintained as a class action under Civ.R. 23: (1) an

identifiable class must exist and the definition of the class must be

unambiguous; (2) the named representatives must be members of the

class; (3) the class must be so numerous that joinder of all members is

impracticable; (4) there must be questions of law or fact common to the

class; (5) the claims or defenses of the representative parties must be

typical of the claims or defenses of the class; (6) the representative parties

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must fairly and adequately protect the interests of the class; and (7) one of

the three Civ.R. 23(B) requirements must be met.” (Emphasis added.)

Jacobs v. FirstMerit Corp., 11th Dist. Lake No. 2013-L-012, 2013-Ohio-

4308, ¶24.

{¶19} Ms. Piaser alleged in her counterclaim that Unifund is a

“debt collector” whose litigation activity is subject to the FDCPA. She

alleged that Unifund violated Section 1692e of the FDCPA by filing actions

to collect time-barred debts against her and other class members. Section

1692e provides that a debt collector “may not use any false, deceptive, or

misleading representation or means in connection with the collection of

any debt.” A debt collector violates this section by, among other things,

falsely representing “the character, amount, or legal status of any debt.”

See Sec. 1692e(2)(A). As courts in other jurisdictions have pointed out,

“‘[c]ommon sense dictates that whether a debt is time-barred is directly

related to the legal status of that debt.’” Gervais v. Riddle & Assocs., P.C.,

479 F.Supp.2d 270, 277 (D.Conn.2007), quoting Shorty v. Capital One

Bank, 90 F.Supp.2d 1330, 1331 (D.N.M.2000).

{¶20} Ms. Piaser was only entitled to have the trial court certify the

Time-Bar Class if she was able to satisfy each of the seven class-action

requirements as to that class, including the requirement that “the named

representatives must be members of the class.” Jacobs, supra. Ms.

Piaser defined the Time-Bar Class to include those individuals who

Unifund sued “beyond the shorter of: (1) the period of limitation

determined under the laws of Ohio, and (b) the period of limitation

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determined under the laws of the state where the headquarters of the

alleged credit card issuing bank is located [New Hampshire].”

{¶21} The parties agree that resolution of Ms. Piaser’s motion to

certify the Time-Bar Class turns on which state’s statute of limitations

applies to the court action. If, as Ms. Piaser argues, Ohio’s six-year

statute of limitations or New Hampshire’s three-year statute of limitations

applies, she is potentially a member of the class. However, if, as Unifund

argues, Ohio's 15-year limitations period for written contracts applies, the

collection lawsuit was timely filed and Ms. Piaser is not a member of the

class.

{¶22} Since Unifund filed its claim against Ms. Piaser nine years

after it accrued, it was timely filed. Thus, the court in its 2016 judgment on

Ms. Piaser’s motion to certify found that Ms. Piaser was not a member of

the Time-Bar Class because, under her proposed class definition, class

members had to be sued after the expiration of the applicable statute of

limitations. As a result, the court denied certification of this class.

{¶23} Unifund argues that we lack jurisdiction to determine

whether the 15-year statute of limitation applies because the court made

this conclusion in its 2013 summary judgment entry, which was not a final

order. However, Unifund is incorrect because the trial court reiterated its

finding regarding the 15-year statute in the court’s 2016 judgment denying

class certification to the Time-Bar Class.

{¶24} Ms. Piaser argues that the account agreement issued with

the credit card is not a written contract, but rather is an oral contract.

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Thus, she argues that Unifund’s claim would be barred under either Ohio’s

six-year statute for oral contracts or under New Hampshire’s three-year

statute per the choice-of-law provision in the account agreement. As a

result, we must determine whether the contract is written or oral.

{¶25} When there is no evidence that the card holder signed the

credit card application, which is the case here, the case law is not clear as

to whether such contract qualifies as a written contract for statute-of-

limitations purposes.

{¶26} In Am. Express v. Silverman, 10th Dist. Franklin No. 06AP-

338, 2006-Ohio-6374, ¶9, the court held that a consumer’s use of a credit

card subjects him to a binding contract, which is governed by the terms of

the agreement. In Calvary SPV I, LLC v. Furtado, 10th Dist. Franklin No.

05AP-361, 2005-Ohio-6884, the court held that, although the credit card

agreement lacked the defendant’s signature, the bank’s issuance of the

card and the defendant’s use of the card created a binding contract. Id.

at ¶18. These cases did not, however, determine whether the contract

was written or oral.

{¶27} In Midland Funding, LLC v. Paras, 8th Dist. Cuyahoga No.

93442, 2010-Ohio-264, the Eighth District held that Ohio’s 15-year statute

of limitations for written contracts applied to the debt collector’s action on a

credit card account that the debt collector had acquired through

assignment. Id. at ¶12. However, it is unclear whether the card holder in

Midland signed a credit card application. Unlike Midland, the Second

District specifically addressed the issue whether a written contract exists

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 when the debt collector fails to present evidence that the card holder

signed the credit card application. The Second District held that where the

debt collector failed to submit evidence of the card holder’s signature on a

credit card application, an issue of fact “‘exists whether the contract was

reduced to writing, so that it is not clear, as a matter of law, that the

fifteen-year statute of limitations applies.’” Unifund CCR Partners v.

Childs, 2d Dist. Montgomery No. 23161, 2010-Ohio-746, ¶16, quoting

Unifund CCR Partners v. Hemm, 2d Dist. Miami No. 08-CA-36, 2009-

Ohio-3522, ¶24.

{¶28} In finding the account agreement attached to the complaint

is a written contract, the trial court stated in its 2013 summary judgment

entry:

{¶29} The written Account Agreement, which [Unifund] claims [Ms.
Piaser] agreed to in this case, details extensively the rights and
obligations of both parties. It does not require additional
supplementation to establish the existence of a contract. The
agreement provides, “This agreement is a final expression of the
agreement between you and us and may not be contradicted by
evidence of any alleged oral agreement.” It cannot be reasonably
argued that the written Account Agreement is not the contract
between the parties, or that it is merely a written memorandum of
an oral contract. So how does one become bound by the terms
and conditions of the written Account Agreement? The last
sentence of the first paragraph of the Account Agreement provides,
“Any use of this Account shall constitute acceptance of the terms of
this Agreement.” This is completely consistent with the case law of
Ohio.

{¶30} [Unifund] asserts that the Account Agreement attached to the
complaint is the standard credit card agreement of Providian
National Bank that was in effect at the time [Ms. Piaser] was using
the credit card. [Ms. Piaser] says that she received the credit card
as a result of a telephone solicitation from the bank. Whatever
transpired in the telephone conversation, the Bank did agree to
offer a credit card account and she agreed to accept it, as

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 evidenced by her use of the credit card. * * * In the case of credit
cards, a binding contract does not arise from signing anything, but
rather is established by the act of using the credit card. It cannot
be plausibly argued that the conscious decision to use the credit
card is not a conscious agreement to accept the terms and
conditions of the written Account Agreement. Only a lawyer could
argue that the written Account Agreement is not a written contract.

{¶31} The written document expresses all of the terms and conditions,
rights and liabilities of the parties. It is a complete and exclusive
statement of the terms of the agreement between the parties. The
only terms enforceable between these parties are what are set out
in the written agreement. The law does not require that the
signatures of both parties are essential for a written contract. * * *
Persons can unequivocally express their intention to enter into and
be bound by a written contract in ways other than physically signing
a document.

{¶32} [Ms. Piaser] may still argue that [Unifund] cannot prove that the
agreement attached to the complaint is the agreement she entered
into, but by accepting and using the credit card, [Ms. Piaser]
signified her agreement to the written terms and conditions of
Providian National Bank’s credit card agreement which was in
place at that point in time. Whether [Unifund] can prove the
particular Account Agreement applicable to [her] remains an issue
of fact.

{¶33} The Court holds that this credit card agreement is subject to the
fifteen year statute of limitations governing written contracts.
(Emphasis added.)

{¶34} As noted, the trial court subsequently reaffirmed these

findings in its 2016 judgment on Ms. Piaser’s motion to certify, and relied

on them in finding that Ms. Piaser is not a member of the Time-Bar Class

and in denying certification of that class.

{¶35} Thus, the trial court concluded, without qualification, that Ms.

Piaser’s claim is based on a written contract. Apparently because there

were multiple versions of the Providian account agreement, the trial court

noted: “Whether [Unifund] can prove the particular account agreement

13
applicable to [her] remains an issue of fact.” However, the issue is not

one of material fact because, regardless of which account agreement

applies, the agreement is a written contract subject to the 15-year statute

of limitations. We therefore hold the trial court did not err in finding that

Ms. Piaser is not a member of the Time-Bar Class and in denying class-

certification to that class.

{¶36} For her second assigned error, Ms. Piaser alleges:

{¶37} “The trial court abused its discretion in overruling defendant-

appellant’s motion to compel discovery of information relevant to the

court’s inquiry of defendant-appellant’s motion for class certification.”

{¶38} This assigned error refers to the court’s 2013 judgment

denying Ms. Piaser’s motion for additional discovery regarding the Time-

Bar Class. However, because this judgment is not a final order, this

assignment of error lacks merit. In any event, Ms. Piaser concedes that

Unifund produced enough discovery materials to support her motion to

certify the Time-Bar Class. Moreover, she does not specify what

additional information she needed or how not having it would prejudice

her.

{¶39} Unifund asserts three cross-assignments of error. They

contend:

{¶40} “[1.] The trial court did not abuse its discretion in denying

Ms. Piaser’s motion to certify a time-bar class because Ms. Piaser’s

claims are not common to or typical of the purported class claim.

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 {¶41} “[2.] The trial court did not abuse its discretion in denying Ms.

Piaser’s motion to certify a time-bar class because Ms. Piaser did not

satisfy Civ.R. 23(B)(2).

{¶42} “[3.] The trial court did not abuse its discretion in denying

Ms. Piaser’s motion to certify a time-bar class because Ms. Piaser did not

satisfy Civ.R 23(B)(3).”

{¶43} In light of our disposition of Ms. Piaser’s first assignment of

error, Unifund’s cross assignments of error are moot.

{¶44} For the reasons stated in this opinion, the assignments of

error and cross-assignments of error are overruled. It is the order and

judgment of this court that the judgment of the Ashtabula County Court of

Common Pleas is affirmed.

TIMOTHY P. CANNON, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

_______________________

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

{¶45} I respectfully dissent.

{¶46} “[A] judgment may be interpreted if it is ambiguous.” Collette

v. Collette, 9th Dist. Summit No. 20423, 2001 WL 986209, *2 (Aug. 22,

2001). If a judgment is ambiguous, the trial court, in enforcing the

judgment “has the power to hear the matters, clarify the confusion, and

resolve the dispute.” Id.

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 {¶47} While the trial court’s finding that the account agreement is a

written contract seems definitive, the court’s additional finding that a fact

question exists as to whether the account agreement attached to the

complaint applies to Ms. Piaser casts doubt on whether such is the case.

Since the court’s judgment is subject to two different meanings, it is

ambiguous.

{¶48} In light of the trial court’s ambiguous findings regarding the

account agreement, the court erred in finding that the account agreement

qualified as a written contract; in finding that Ms. Piaser was not a member

of the class; and in denying certification of the Time-Bar Class.

{¶49} Because this matter should be reversed and remanded, I

respectfully dissent.

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