Court of Appeals of Ohio, Eleventh District, Portage
Appeal from the Portage County Court of Common Pleas, Case
No. 2009 CV 0710.
C. Megargel, Megargel & Eskridge Co., LPA, (For
N. Misra, The Misra Law Firm, L.L.C., and Robert S. Belovich,
(For Defendant/Third Party Plaintiff-Appellant).
Lawrence G. Reinhold, (For Third Party Defendant-Appellee).
R. WRIGHT, J.
Appellant, Cindy Keith, appeals two decisions granting
summary judgment against her on her counterclaims and
third-party complaint. Appellant primarily challenges the
conclusion that she is bound by a "choice of law"
provision in the applicable credit card agreement. We reverse
and remand for further proceedings.
This constitutes appellant's second appeal in this
matter. In Dodeka, LLC v. Keith, 11th Dist. Portage
No. 2011-P-0043, 2012-Ohio-6216, we held that the trial court
erred in staying the underlying proceedings and ordering the
parties to proceed to arbitration. Our prior opinion states
"In September 1991, appellant was married to Andrew
Keith. At that time, Andrew submitted an application to U.S.
Bank for a credit card. After receiving the card, Andrew
continued to use it throughout the next eleven years. During
that time frame, appellant's name appeared on the various
account statements that were mailed to the Keith residence.
"In 2000, the Keiths were divorced pursuant to a
judicial decree. As part of the distribution of the marital
property, Andrew was held solely responsible for any debt
under U.S. Bank card, However, no steps were ever taken to
remove appellant's name from the account, and the account
statements mailed to Andrew at his separate address continued
to have her name on them.
"During the time frame in which the 'Keith'
credit card account was open, U.S. Bank would periodically
modify the terms of the underlying agreement by sending
copies of the new contract to the listed address. The last of
these 'amended' contracts was mailed to Andrew's
home address in July 2002. * * *
"In April 2003, Andrew Keith stopped making payments on
a considerable sum that he had charged on the U.S. Bank
credit card. Five months later, he submitted a petition for
federal bankruptcy, and his credit card debt was ultimately
discharged. As a result, U.S. Bank removed Andrew's name
from the 'credit card' account, and began to pursue
possible remedies against appellant." Id. at
At the time Andrew made his final payment to U.S. Bank, the
credit card agreement had a provision governing the
cardholder's responsibility to pay. In addition to
referencing the basic obligation to pay for all purchases,
advances, finance charges, and account fees, the provision
states that U.S. Bank is entitled to collect any attorney
fees it incurred in enforcing agreement, to the extent that
such fees are collectible under the applicable law. Regarding
the choice of law governing the agreement, paragraph 30 of
the agreement states, in pertinent part:
"We extend all Account credit to you in and from the
state of North Dakota, regardless of where you reside or use
the Account. This agreement is governed by North Dakota law
and, to the extent necessary for interest exportation or
consumer protection purposes, by federal law, regardless of
the internal conflicts of law principles of the state where
you reside or use the Account."
In November 2007, U.S. Bank's interest in the Keith
account was sold to Dodeka, LLC. Accordingly, that entity
sought recovery on the outstanding balance, $10, 964.56.
Within one year of the transfer, Dodeka filed an action for
money damages against appellant in the Portage County
Municipal Court. As part of its prayer for relief, ...