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Unifund CCR Partners v. Piaser

Court of Appeals of Ohio, Eleventh District, Ashtabula

July 30, 2018

UNIFUND CCR PARTNERS, et al., Plaintiffs-Appellees,
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 (For Plaintiffs-Appellees).

          Robert S. Belovich, South Hills Boulevard, and Anand N. Misra, The Misra Law Firm, L.L.C., (For Defendant-Appellant).



         {¶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 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 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 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 ...

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