Bill Text: OH SB256 | 2011-2012 | 129th General Assembly | Introduced
Bill Title: To allow suppliers and consumers to enter into a Right to Cure agreement.
Spectrum: Partisan Bill (Republican 6-0)
Status: (Introduced - Dead) 2011-11-16 - To Insurance, Commerce, & Labor [SB256 Detail]
Download: Ohio-2011-SB256-Introduced.html
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Senator Coley
Cosponsors:
Senators Seitz, LaRose, Schaffer, Jones, Patton
| To amend section 1345.09 and to enact section | 1 |
| 1345.092 of the Revised Code to allow suppliers | 2 |
| and consumers to enter into a Right to Cure | 3 |
| agreement. | 4 |
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 file a copy of the cure | 81 |
| offer with the court in which the action was commenced. | 82 |
| (B) A consumer shall have thirty days after the date the | 83 |
| consumer or the consumer's attorney receives a cure offer from a | 84 |
| supplier to notify the supplier, or if the supplier is represented | 85 |
| by an attorney, the supplier's attorney, of the consumer's | 86 |
| acceptance or rejection of the cure offer. The consumer shall file | 87 |
| the notice of acceptance or rejection with the court in which the | 88 |
| action was commenced and serve the notice to the supplier. The | 89 |
| notice shall be deemed effective when it is filed with the court. | 90 |
| The failure of a consumer to file a notice of acceptance or | 91 |
| rejection of the supplier's cure offer within thirty days shall be | 92 |
| deemed a rejection of the cure offer by the consumer. | 93 |
| (C) When by rule, notice, or order of court a motion or | 94 |
| pleading is required to be filed by any party during the time | 95 |
| periods described in divisions (A) and (B) of this section, the | 96 |
| court shall extend the time period for filing the motion or | 97 |
| pleading to allow both parties adequate time to comply with this | 98 |
| section. | 99 |
| (D) A cure offer must include both of the following: | 100 |
| (1) Language that clearly explains the resolution being | 101 |
| offered by the supplier consisting of the following separate | 102 |
| components: | 103 |
| (a) A supplier's remedy to resolve alleged violations of this | 104 |
| chapter that includes one or more things of value, such as cash, | 105 |
| goods, or services. The supplier's remedy shall include an | 106 |
| itemization of the fair market value of cash, goods, and services | 107 |
| included in the remedy. | 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 one thousand five hundred dollars. | 111 |
| (2) A prominent notice that clearly and conspicuously | 112 |
| contains the following disclosure in substantially the following | 113 |
| form: | 114 |
| NOTICE: THIS LETTER INCLUDES A "CURE OFFER" THAT IS BEING | 115 |
| OFFERED TO SETTLE ALL ALLEGED VIOLATIONS OF CHAPTER 1345. OF THE | 116 |
| REVISED CODE RAISED BY YOUR WRITTEN COMPLAINT. THE CURE OFFER | 117 |
| INCLUDES BOTH A "SUPPLIER'S REMEDY" TO SOLVE THIS DISPUTE AND AN | 118 |
| OFFER TO PAY YOUR ATTORNEY'S FEES UP TO $1,500.00. YOU ARE NOT | 119 |
| OBLIGATED TO ACCEPT THIS CURE OFFER AND HAVE THE RIGHT TO CONSULT | 120 |
| WITH LEGAL COUNSEL BEFORE MAKING YOUR DECISION. | 121 |
| YOU MUST NOTIFY THE SUPPLIER WITHIN 30 DAYS OF RECEIPT OF | 122 |
| THIS CURE OFFER OF YOUR DECISION TO EITHER ACCEPT OR REJECT THE | 123 |
| OFFER BY FILING A RESPONSE WITH THE COURT AND SENDING A COPY OF | 124 |
| THE RESPONSE TO THE SUPPLIER. IF THE COURT DOES NOT RECEIVE YOUR | 125 |
| RESPONSE WITHIN THE REQUIRED TIME, YOUR FAILURE TO RESPOND WILL, | 126 |
| BY LAW, BE CONSIDERED REJECTION OF OUR OFFER. | 127 |
| REJECTION OF THIS CURE OFFER COULD IMPACT YOUR ABILITY TO | 128 |
| COLLECT COURT COSTS AND LEGAL FEES. IF A COURT, JURY, OR | 129 |
| ARBITRATOR FINDS IN YOUR FAVOR, BUT DOES NOT AWARD YOU AN AMOUNT | 130 |
| MORE THAN THE VALUE OF THE SUPPLIER'S REMEDY, THE SUPPLIER WILL | 131 |
| NOT BE RESPONSIBLE FOR TREBLE DAMAGES, ATTORNEY'S FEES, OR ANY | 132 |
| COURT COSTS YOU INCUR AFTER THE DATE THIS CURE OFFER WAS MADE | 133 |
| (fill in the date). | 134 |
| VALUE OF SUPPLIER'S REMEDY = $(fill in the blank) | 135 |
| ATTORNEY'S FEES = $(fill in the blank) | 136 |
| TOTAL VALUE OF CURE OFFER = $(fill in the blank) | 137 |
| (E) If the consumer files a notice rejecting the cure offer | 138 |
| provided by the supplier, if a cure offer is deemed rejected | 139 |
| pursuant to division (B) of this section, or if no cure offer is | 140 |
| made to the consumer by the supplier within the time frame set | 141 |
| forth in this section, the consumer may proceed with a civil | 142 |
| action in accordance with this chapter. | 143 |
| (F) If the consumer files a notice accepting a cure offer, | 144 |
| the agreed upon resolution must be completed within a reasonable | 145 |
| time in accordance with court supervision. The court may at any | 146 |
| time, in its discretion, extend any deadlines set forth by rule, | 147 |
| statute, or order of the court for filing motions or pleadings, or | 148 |
| conducting discovery in order to allow the resolution to be | 149 |
| completed. | 150 |
| (G) If a judge, jury, or arbitrator awards actual economic | 151 |
| damages as defined in section 1345.09 of the Revised Code that are | 152 |
| less than the value of a supplier's remedy included in a cure | 153 |
| offer made pursuant to this section, the consumer shall not be | 154 |
| entitled to any of the following: | 155 |
| (1) An award of treble damages; | 156 |
| (2) Any court costs incurred by the consumer after the date | 157 |
| the consumer or the consumer's attorney receives the cure offer; | 158 |
| (3) Any attorney's fees incurred by the consumer after the | 159 |
| date the consumer or the consumer's attorney receives the cure | 160 |
| offer from the supplier. | 161 |
| The comparison of actual economic damages and the supplier's | 162 |
| remedy shall not take into consideration statutory treble damages, | 163 |
| court costs, or attorney's fees. | 164 |
| (H) A cure offer is admissible in a judicial proceeding only | 165 |
| if the offer was timely delivered in accordance with this section | 166 |
| and only for the limited purpose of determining whether treble | 167 |
| damages may be awarded and the amount of court costs and | 168 |
| reasonable attorney's fees that may be awarded. A cure offer is | 169 |
| not admissible in a court proceeding for any other purpose. | 170 |
| (I) As used in this section, "cure offer" means a written | 171 |
| offer of one or more things of value, such as cash, goods, or | 172 |
| services, that is made by a supplier to a consumer or to the | 173 |
| consumer's attorney in response to a consumer's claim of a | 174 |
| violation of Chapter 1345. of the Revised Code. A cure offer shall | 175 |
| include reasonable legal fees necessary or reasonably related to | 176 |
| the filing of the initial complaint of up to one thousand five | 177 |
| hundred dollars. | 178 |
| (J) This section does not apply to claims for personal injury | 179 |
| or death. | 180 |
| Section 2. That existing section 1345.09 of the Revised Code | 181 |
| is hereby repealed. | 182 |
