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Dudek v. Thomas & Thomas Attorneys & Counselors at Law

March 22, 2010

PATRICIA DUDEK PLAINTIFF,
v.
THOMAS & THOMAS ATTORNEYS & COUNSELORS AT LAW, LLC DEFENDANT.



The opinion of the court was delivered by: Judge Kathleen M. O'malley

MEMORANDUM & ORDER

Before the Court is Defendant Thomas & Thomas Attorneys & Counselors at Law, LLC's Motion for Judgment on the Pleadings. (Doc. 9.) This Motion has been fully briefed and is ripe for adjudication. For the reasons articulated below, Defendant's Motion for Judgment on the Pleadings is GRANTED, and this matter is DISMISSED.

I. BACKGROUND

A. Factual Background

Unless otherwise noted, the following facts are undisputed:

On November 30, 2007, Defendant Thomas & Thomas Attorneys & Counselors at Law, LLC ("T&T") filed a complaint against Plaintiff Patricia Dudek ("Dudek") in the Lorain County Court of Common Pleas on behalf of its client, LVNV Funding LLC ("the State Court Complaint"). (Doc. 4 at ¶¶ 5, 11.) In the State Court Complaint, T&T alleged that LVNV Funding, as the predecessor in interest to the original creditor, Providian Financial Corporation, owned a credit card debt allegedly owed by Dudek. (Id. at 12 (State Court Complaint at ¶ 1).) T&T further alleged that, despite demand for payment, Dudek refused to pay the balance owed. (Id.) T&T attached to the State Court Complaint an affidavit signed by Heather Robertson, an authorized representative of LVNV Funding, attesting that Dudek owed LVNV Funding the amount of $2196.29, plus interest accruing at a rate of 10% from July 22, 2002, on her account number ending in 3065. (Doc. 9-1 at ¶¶ 2, 5.)*fn1

In response to the State Court Complaint, Dudek filed an answer in which she: (1) denied the allegations contained therein; and (2) asserted several affirmative defenses, including a statute of limitations defense. Dudek did not identify which state's statute of limitation she was invoking. During the course of discovery in the state court action, counsel discussed Dudek's position that the case was time-barred. (Doc. 4 at ¶ 17; Doc. 8 at ¶ 12.) On September 3, 2008, immediately before the trial was scheduled to begin, T&T dismissed the State Court Complaint without prejudice. (Doc. 4 at ¶ 19; Doc. 11 at 3.)

B. Procedural History and Jurisdiction

1. Federal Court Proceedings

On September 9, 2008, Dudek filed the instant suit against T&T alleging violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. (Doc. 4.)*fn2 Specifically, in the single cause of action contained in the Complaint, Dudek alleges that T&T violated the FDCPA by filing the State Court Complaint in an attempt to collect on a time-barred debt. Dudek's Complaint seeks actual damages as well as statutory damages, costs, and attorney fees pursuant to 15 U.S.C. § 1692k. (Id. at ¶¶ 27-29.)

In her Complaint, Dudek asserts that this Court has jurisdiction pursuant to 15 U.S.C. § 1692(d) and 28 U.S.C. § 1337.*fn3 (Id. at ¶ 2.) The FDCPA specifically provides for federal jurisdiction over claims made pursuant to the act. See 15 U.S.C. § 1692k(d). Accordingly, the Court has federal question jurisdiction under 28 U.S.C. § 1331.

On November 25, 2008, T&T filed an answer denying liability but admitting, among other things, that the debt allegedly owed by Dudek is a consumer debt, and that, under the facts of this case, T&T qualifies as a "debt collector" as defined in the FDCPA. (Doc. 8 at ¶¶ 4, 9.) T&T asserted several affirmative defenses, including a bona fide error defense pursuant to 15 U.S.C. § 1692k(c). (Id. at ¶ 2.)

2. T&T's Motion for Judgment on the Pleadings

Subsequently, on March 5, 2009, T&T filed a Motion for Judgment on the Pleadings (Doc. 9), on the basis that its conduct in filing the State Court Complaint against Dudek did not violate the FDCPA because its state law claim was not time-barred. Specifically, T&T argues that: (1) its state court collection action against Dudek was timely filed within the applicable Ohio statute of limitations; (2) Ohio's borrowing statute, O.R.C. § 2305.03(B), was not in effect at the time the breach of contract claim accrued, and, therefore, Dudek cannot borrow the limitations period from any other state; and (3) even if Ohio's borrowing statute did apply, analysis under the statute still requires application of Ohio's statute of limitations. On April 30, 2009, Dudek filed a Response in Opposition to Defendant's Motion for Judgment on the Pleadings (Doc. 11). Although the Complaint is silent with respect to which state's statute of limitations applies to the state court action, in her briefing, Dudek clarifies her position that, pursuant to the choice of law provision in the underlying credit card agreement, New Hampshire's three-year limitations period applies. T&T filed a Reply in support of its Motion on May 11, 2009. (Doc. 12.)*fn4 Dudek does not premise her FDCPA claim on any alleged wrongdoing by T&T other than the filing of what Dudek asserts was a time-barred collection action.

3. The Choice of Law Provision

To determine whether Dudek's Complaint states a claim under the FDCPA, the Court must ascertain whether the underlying state court action was filed within the applicable statute of limitations. Resolution of this issue depends, at least in part, on whether the choice of law provision in the credit card agreement between the parties requires application of New Hampshire's statute of limitations. Neither party attached a copy of the underlying agreement to their briefing, and the parties' briefing does not provide the Court with the specific language used in the choice of law provision.

At the CMC held on December 17, 2009, the parties agreed to file a stipulated copy of the relevant choice of law provision. Accordingly, in the Case Management Plan (Doc. 17), Magistrate Judge McHargh ordered the parties to submit the choice of law provision as a joint exhibit. On March 11, 2010, the parties submitted a copy of the relevant card member agreement: Providian's VISA Classic First Deposit National Bank Account Agreement ("the Agreement"). (Doc. 24-1.) The parties stipulate that the Agreement is the contract applicable to Dudek's credit card account. (Doc. 24.) Section 16 of the ...


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