As Passed by the House

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 

A BILL
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 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:103

        (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

ATTORNEY'S FEES = $(fill in the blank)139

COURT COSTS = $(fill in the blank)140

TOTAL VALUE OF CURE OFFER = $(fill in the blank)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
the agreed upon resolution shall be completed within a reasonable 149
time in accordance with court supervision. The court may at any 150
time, in its discretion, extend any deadlines set forth by rule, 151
statute, or order of the court for filing motions or pleadings, or 152
conducting discovery in order to allow the resolution to be 153
completed.154

        (G) If a judge, jury, or arbitrator awards actual economic 155
damages as defined in section 1345.09 of the Revised Code that are 156
less than the value of a supplier's remedy included in a cure 157
offer made pursuant to this section, the consumer shall not be 158
entitled to any of the following:159

       (1) An award of treble damages;160

       (2) Any court costs incurred by the consumer after the date 161
the consumer or the consumer's attorney receives the cure offer;162

       (3) Any attorney's fees incurred by the consumer after the 163
date the consumer or the consumer's attorney receives the cure 164
offer from the supplier.165

       The comparison of actual economic damages and the supplier's 166
remedy shall not take into consideration statutory treble damages, 167
court costs, or attorney's fees.168

        (H) A cure offer is not admissible as evidence in a jury 169
trial of the consumer's action seeking a private remedy pursuant 170
to section 1345.09 of the Revised Code as described in division 171
(A) of this section. After a jury renders its verdict in that 172
action or if the action is tried to a judge, the judge may 173
consider the cure offer only if the offer was timely delivered in 174
accordance with this section and only for the limited purpose of 175
determining whether treble damages may be awarded and the amount 176
of court costs and reasonable attorney's fees that may be awarded. 177
A cure offer is not admissible in a court proceeding for any other 178
purpose.179

        (I) As used in this section, "cure offer" means a written 180
offer of monetary compensation that is made by a supplier to a 181
consumer or to the consumer's attorney in response to a consumer's 182
claim of a violation of Chapter 1345. of the Revised Code. A cure 183
offer shall include reasonable legal fees necessary or reasonably 184
related to the filing of the initial complaint of up to two 185
thousand five hundred dollars and court costs incurred by the 186
consumer and related to the filing of the initial complaint.187

       (J) This section does not apply to claims for personal injury 188
or death.189

       Section 2. That existing section 1345.09 of the Revised Code 190
is hereby repealed.191