Bill Text: OH HB275 | 2011-2012 | 129th General Assembly | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: To allow suppliers and consumers to enter into a Right to Cure agreement.

Spectrum: Partisan Bill (Republican 21-0)

Status: (Passed) 2012-07-03 - Effective Date [HB275 Detail]

Download: Ohio-2011-HB275-Engrossed.html

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As Passed by the Senate

129th General Assembly Regular Session 2011-2012

Sub. H. B. No. 275

Representatives Young, Slaby 

Cosponsors: Representatives Henne, Bubp, Combs, Hollington, Hackett, Thompson, Adams, J., Adams, R., Newbold 

Senators Schaffer, Hughes, Bacon, Balderson, Coley, Jordan, LaRose, Lehner, Niehaus, Seitz 

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A BILL

To amend section 1345.09 and to enact section

1

1345.092 of the Revised Code to allow suppliers

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and consumers to enter into a Right to Cure

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agreement.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 1345.09 be amended and section	5
1345.092 of the Revised Code be enacted to read as follows:	6

Sec. 1345.09.  For a violation of Chapter 1345. of the	7
Revised Code, a consumer has a cause of action and is entitled to	8
relief as follows:	9

(A) Where the violation was an act prohibited by section	10
1345.02, 1345.03, or 1345.031 of the Revised Code, the consumer	11
may, in an individual action, rescind the transaction or recover	12
the consumer's actual economic damages plus an amount not	13
exceeding five thousand dollars in noneconomic damages.	14

(B) Where the violation was an act or practice declared to be	15
deceptive or unconscionable by rule adopted under division (B)(2)	16
of section 1345.05 of the Revised Code before the consumer	17
transaction on which the action is based, or an act or practice	18
determined by a court of this state to violate section 1345.02,	19
1345.03, or 1345.031 of the Revised Code and committed after the	20
decision containing the determination has been made available for	21
public inspection under division (A)(3) of section 1345.05 of the	22
Revised Code, the consumer may rescind the transaction or recover,	23
but not in a class action, three times the amount of the	24
consumer's actual economic damages or two hundred dollars,	25
whichever is greater, plus an amount not exceeding five thousand	26
dollars in noneconomic damages or recover damages or other	27
appropriate relief in a class action under Civil Rule 23, as	28
amended.	29

(C)(1) Except as otherwise provided in division (C)(2) of	30
this section, in any action for rescission, revocation of the	31
consumer transaction must occur within a reasonable time after the	32
consumer discovers or should have discovered the ground for it and	33
before any substantial change in condition of the subject of the	34
consumer transaction.	35

(2) If a consumer transaction between a loan officer,	36
mortgage broker, or nonbank mortgage lender and a customer is in	37
connection with a residential mortgage, revocation of the consumer	38
transaction in an action for rescission is only available to a	39
consumer in an individual action, and shall occur for no reason	40
other than one or more of the reasons set forth in the "Truth in	41
Lending Act," 82 Stat. 146 (1968), 15 U.S.C. 1635, not later than	42
the time limit within which the right of rescission under section	43
125(f) of the "Truth in Lending Act" expires.	44

(D) Any consumer may seek a declaratory judgment, an	45
injunction, or other appropriate relief against an act or practice	46
that violates this chapter.	47

(E) When a consumer commences an individual action for a	48
declaratory judgment or an injunction or a class action under this	49
section, the clerk of court shall immediately mail a copy of the	50
complaint to the attorney general. Upon timely application, the	51
attorney general may be permitted to intervene in any private	52
action or appeal pending under this section. When a judgment under	53
this section becomes final, the clerk of court shall mail a copy	54
of the judgment including supporting opinions to the attorney	55
general for inclusion in the public file maintained under division	56
(A)(3) of section 1345.05 of the Revised Code.	57

(F) The court may award to the prevailing party a reasonable	58
attorney's fee limited to the work reasonably performed and	59
limited pursuant to section 1345.092 of the Revised Code, if	60
either of the following apply:	61

(1) The consumer complaining of the act or practice that	62
violated this chapter has brought or maintained an action that is	63
groundless, and the consumer filed or maintained the action in bad	64
faith;	65

(2) The supplier has knowingly committed an act or practice	66
that violates this chapter.	67

(G) As used in this section, "actual economic damages" means	68
damages for direct, incidental, or consequential pecuniary losses	69
resulting from a violation of Chapter 1345. of the Revised Code	70
and does not include damages for noneconomic loss as defined in	71
section 2315.18 of the Revised Code.	72

(H) Nothing in this section shall preclude a consumer from	73
also proceeding with a cause of action under any other theory of	74
law.	75

Sec. 1345.092. (A) Not later than thirty days after service	76
of process is completed upon a supplier by a consumer in any	77
action seeking a private remedy pursuant to section 1345.09 of the	78
Revised Code, the supplier may deliver a cure offer to the	79
consumer, or if the consumer is represented by an attorney, to the	80
consumer's attorney. The supplier shall send a cure offer by	81
certified mail, return receipt requested, to the consumer, or if	82
the consumer is represented by an attorney, to the consumer's	83
attorney. The supplier shall file a copy of the cure offer with	84
the court in which the action was commenced.	85

(B) A consumer shall have thirty days after the date the	86
consumer or the consumer's attorney receives a cure offer from a	87
supplier to notify the supplier, or if the supplier is represented	88
by an attorney, the supplier's attorney, of the consumer's	89
acceptance or rejection of the cure offer. The consumer shall file	90
the notice of acceptance or rejection with the court in which the	91
action was commenced and serve the notice to the supplier. The	92
notice shall be deemed effective when it is filed with the court.	93
The failure of a consumer to file a notice of acceptance or	94
rejection of the supplier's cure offer within thirty days after	95
the date of receipt of the cure offer shall be deemed a rejection	96
of the cure offer by the consumer.	97

(C) When by rule, notice, or order of court a motion or	98
pleading is required to be filed by any party during the time	99
periods described in divisions (A) and (B) of this section, the	100
court may extend the time period for filing the motion or pleading	101
to allow both parties adequate time to comply with this section.	102

(D) A cure offer shall include both of the following:

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(1) Language that clearly explains the resolution being	104
offered by the supplier consisting of the following separate	105
components:	106

(a) A supplier's remedy that consists solely of monetary	107
compensation to resolve alleged violations of this chapter;	108

(b) Reasonable attorney's fees that consist of legal fees	109
necessary or reasonably related to the filing of the initial	110
complaint, not to exceed two thousand five hundred dollars;	111

(c) Court costs incurred by the consumer that are related to	112
the filing of the initial complaint.	113

(2) A prominent notice that clearly and conspicuously	114
contains the following disclosure in substantially the following	115
form:	116

NOTICE: THIS LETTER INCLUDES A "CURE OFFER" THAT IS BEING	117
OFFERED TO SETTLE ALL ALLEGED VIOLATIONS OF CHAPTER 1345. OF THE	118
REVISED CODE RAISED BY YOUR WRITTEN COMPLAINT. THE CURE OFFER	119
INCLUDES BOTH A "SUPPLIER'S REMEDY" TO SOLVE THIS DISPUTE AND AN	120
OFFER TO PAY YOUR ATTORNEY'S FEES UP TO $2,500.00 AND YOUR COURT	121
COSTS IN FILING THE COMPLAINT. YOU ARE NOT OBLIGATED TO ACCEPT	122
THIS CURE OFFER AND HAVE THE RIGHT TO CONSULT WITH LEGAL COUNSEL	123
BEFORE MAKING YOUR DECISION.	124

YOU MUST NOTIFY THE SUPPLIER WITHIN 30 DAYS OF RECEIPT OF	125
THIS CURE OFFER OF YOUR DECISION TO EITHER ACCEPT OR REJECT THE	126
OFFER BY FILING A RESPONSE WITH THE COURT AND SENDING A COPY OF	127
THE RESPONSE TO THE SUPPLIER. IF THE COURT DOES NOT RECEIVE YOUR	128
RESPONSE WITHIN THE REQUIRED TIME, YOUR FAILURE TO RESPOND WILL,	129
BY LAW, BE CONSIDERED REJECTION OF OUR OFFER.	130

REJECTION OF THIS CURE OFFER COULD IMPACT YOUR ABILITY TO	131
COLLECT COURT COSTS AND LEGAL FEES. IF A COURT, JURY, OR	132
ARBITRATOR FINDS IN YOUR FAVOR, BUT DOES NOT AWARD YOU AN AMOUNT	133
MORE THAN THE VALUE OF THE SUPPLIER'S REMEDY, THE SUPPLIER WILL	134
NOT BE RESPONSIBLE FOR TREBLE DAMAGES, ATTORNEY'S FEES, OR ANY	135
COURT COSTS YOU INCUR AFTER THE DATE THIS CURE OFFER WAS MADE	136
(fill in the date).	137

VALUE OF SUPPLIER'S REMEDY = $(fill in the blank)	138

THE SELLER ALSO AGREES TO PAY YOUR ATTORNEY'S FEES, UP TO	139
$2,500.00, THAT ARE NECESSARY OR REASONABLY RELATED TO THE FILING	140
OF YOUR INITIAL CLAIM, AS WELL AS YOUR COURT COSTS.	141

(E) If the consumer files a notice rejecting the cure offer	142
provided by the supplier, if a cure offer is deemed rejected	143
pursuant to division (B) of this section, or if no cure offer is	144
made to the consumer by the supplier within the time frame set	145
forth in this section, the consumer may proceed with a civil	146
action in accordance with this chapter.	147

(F) If the consumer files a notice accepting a cure offer,	148
then both of the following shall apply:	149

(1)(a) The consumer shall, upon accepting the cure offer,	150
request an amount, up to two thousand five hundred dollars, from	151
the supplier to pay attorney's fees and an amount to pay court	152
costs. The consumer shall provide to the supplier bills and other	153
documents evidencing these amounts.	154

(b) If the supplier finds the requested amounts to be	155
reasonable, then the supplier shall pay the consumer the requested	156
amounts along with the offered remedy upon the resolution of the	157
cure offer.	158

(c) If the supplier finds the requested amounts to be	159
unreasonable, then the supplier shall, within ten days of the	160
consumer accepting the cure offer, seek a ruling from the court	161
appointed to the case. The court shall review the documentation	162
provided by the consumer evidencing the requested amounts and	163
shall award to the consumer attorney's fees, up to two thousand	164
five hundred dollars, that are necessary or reasonably related to	165
the filing of the claim and court costs.	166

(2) The agreed upon resolution shall be completed and any	167
court-ordered attorney's fees and court costs shall be paid within	168
a reasonable time in accordance with court supervision. The court	169
may at any time, in its discretion, extend any deadlines set forth	170
by rule, statute, or order of the court for filing motions or	171
pleadings, or conducting discovery in order to allow the	172
resolution to be completed.	173

(G) If a judge, jury, or arbitrator awards actual economic	174
damages as defined in section 1345.09 of the Revised Code that are	175
not greater than the value of a supplier's remedy included in a	176
cure offer made pursuant to this section, the consumer shall not	177
be entitled to any of the following:	178

(1) An award of treble damages;

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(2) Any court costs incurred by the consumer after the date	180
the consumer or the consumer's attorney receives the cure offer;	181

(3) Any attorney's fees incurred by the consumer after the	182
date the consumer or the consumer's attorney receives the cure	183
offer from the supplier.	184

The comparison of actual economic damages and the supplier's	185
remedy shall not take into consideration statutory treble damages,	186
court costs, or attorney's fees.	187

(H) A cure offer is not admissible as evidence in a jury	188
trial of the consumer's action seeking a private remedy pursuant	189
to section 1345.09 of the Revised Code as described in division	190
(A) of this section. After a jury renders its verdict in that	191
action or if the action is tried to a judge, the judge shall	192
consider the cure offer only if the offer was timely delivered in	193
accordance with this section and only for the limited purpose of	194
determining whether treble damages may be awarded and the amount	195
of court costs and reasonable attorney's fees that may be awarded.	196
A cure offer is not admissible in a court proceeding for any other	197
purpose.	198

(I) As used in this section, "cure offer" means a written	199
offer of monetary compensation that is made by a supplier to a	200
consumer or to the consumer's attorney in response to a consumer's	201
claim of a violation of Chapter 1345. of the Revised Code. A cure	202
offer shall include reasonable legal fees necessary or reasonably	203
related to the filing of the initial complaint of up to two	204
thousand five hundred dollars and court costs incurred by the	205
consumer and related to the filing of the initial complaint.	206

(J) This section does not apply to claims for personal injury	207
or death.	208

Section 2. That existing section 1345.09 of the Revised Code	209
is hereby repealed.	210