Court of Appeals of Ohio, Eleventh District, Ashtabula
Appeal from the Ashtabula County Court of Common Pleas, Case
No. 2010 CV 80. Judgment: Affirmed.
H. Abes and Elizabeth M. Shaffer, Dinsmore & Shohl, LLP
S. Belovich, South Hills Boulevard, and Anand N. Misra, The
Misra Law Firm, L.L.C., (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
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.
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.
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.
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 several charges on the
account. She made payments between April and July 2000, when
she sent her last payment.
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.
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 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.
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
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
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 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.
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:
"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."
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