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Dodeka, L.L.C. v. Keith

Court of Appeals of Ohio, Eleventh District, Portage

September 5, 2017

DODEKA, L.L.C., Plaintiff-Appellee,
v.
CINDY KEITH, Defendant/Third Party Plaintiff-Appellant, RICHARD J. WELT, Third Party Defendant-Appellee.

         Civil Appeal from the Portage County Court of Common Pleas, Case No. 2009 CV 0710.

          Ralph C. Megargel, Megargel & Eskridge Co., LPA, (For Plaintiff-Appellee).

          Anand 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).

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} 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.

         {¶2} 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 part:

         {¶3} "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.

         {¶4} "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.

         {¶5} "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. * * *

         {¶6} "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 ¶2-5.

         {¶7} 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:

         {¶8} "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."

         {¶9} 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, ...


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