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H. B. No. 275 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Representatives Young, Slaby
Cosponsors:
Representatives Henne, Bubp, Combs, Hollington, Hackett, Thompson
A BILL
To amend section 1345.09 and to enact section
1345.092 of the Revised Code to allow suppliers
and consumers to enter into a Right to Cure
agreement.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 1345.09 be amended and section
1345.092 of the Revised Code be enacted to read as follows:
Sec. 1345.09. For a violation of Chapter 1345. of the
Revised Code, a consumer has a cause of action and is entitled to
relief as follows:
(A) Where the violation was an act prohibited by section
1345.02, 1345.03, or 1345.031 of the Revised Code, the consumer
may, in an individual action, rescind the transaction or recover
the consumer's actual economic damages plus an amount not
exceeding five thousand dollars in noneconomic damages.
(B) Where the violation was an act or practice declared to be
deceptive or unconscionable by rule adopted under division (B)(2)
of section 1345.05 of the Revised Code before the consumer
transaction on which the action is based, or an act or practice
determined by a court of this state to violate section 1345.02,
1345.03, or 1345.031 of the Revised Code and committed after the
decision containing the determination has been made available for
public inspection under division (A)(3) of section 1345.05 of the
Revised Code, the consumer may rescind the transaction or recover,
but not in a class action, three times the amount of the
consumer's actual economic damages or two hundred dollars,
whichever is greater, plus an amount not exceeding five thousand
dollars in noneconomic damages or recover damages or other
appropriate relief in a class action under Civil Rule 23, as
amended.
(C)(1) Except as otherwise provided in division (C)(2) of
this section, in any action for rescission, revocation of the
consumer transaction must occur within a reasonable time after the
consumer discovers or should have discovered the ground for it and
before any substantial change in condition of the subject of the
consumer transaction.
(2) If a consumer transaction between a loan officer,
mortgage broker, or nonbank mortgage lender and a customer is in
connection with a residential mortgage, revocation of the consumer
transaction in an action for rescission is only available to a
consumer in an individual action, and shall occur for no reason
other than one or more of the reasons set forth in the "Truth in
Lending Act," 82 Stat. 146 (1968), 15 U.S.C. 1635, not later than
the time limit within which the right of rescission under section
125(f) of the "Truth in Lending Act" expires.
(D) Any consumer may seek a declaratory judgment, an
injunction, or other appropriate relief against an act or practice
that violates this chapter.
(E) When a consumer commences an individual action for a
declaratory judgment or an injunction or a class action under this
section, the clerk of court shall immediately mail a copy of the
complaint to the attorney general. Upon timely application, the
attorney general may be permitted to intervene in any private
action or appeal pending under this section. When a judgment under
this section becomes final, the clerk of court shall mail a copy
of the judgment including supporting opinions to the attorney
general for inclusion in the public file maintained under division
(A)(3) of section 1345.05 of the Revised Code.
(F) The court may award to the prevailing party a reasonable
attorney's fee limited to the work reasonably performed and
limited pursuant to section 1345.092 of the Revised Code, if
either of the following apply:
(1) The consumer complaining of the act or practice that
violated this chapter has brought or maintained an action that is
groundless, and the consumer filed or maintained the action in bad
faith;
(2) The supplier has knowingly committed an act or practice
that violates this chapter.
(G) As used in this section, "actual economic damages" means
damages for direct, incidental, or consequential pecuniary losses
resulting from a violation of Chapter 1345. of the Revised Code
and does not include damages for noneconomic loss as defined in
section 2315.18 of the Revised Code.
(H) Nothing in this section shall preclude a consumer from
also proceeding with a cause of action under any other theory of
law.
Sec. 1345.092. (A) Not later than thirty days after service
of process is completed upon a supplier by a consumer in any
action seeking a private remedy pursuant to section 1345.09 of the
Revised Code, the supplier may deliver a cure offer to the
consumer, or if the consumer is represented by an attorney, to the
consumer's attorney. The supplier shall file a copy of the cure
offer with the court in which the action was commenced.
(B) A consumer shall have thirty days after the date the
consumer or the consumer's attorney receives a cure offer from a
supplier to notify the supplier, or if the supplier is represented
by an attorney, the supplier's attorney, of the consumer's
acceptance or rejection of the cure offer. The consumer shall file
the notice of acceptance or rejection with the court in which the
action was commenced and serve the notice to the supplier. The
notice shall be deemed effective when it is filed with the court.
The failure of a consumer to file a notice of acceptance or
rejection of the supplier's cure offer within thirty days shall be
deemed a rejection of the cure offer by the consumer.
(C) When by rule, notice, or order of court a motion or
pleading is required to be filed by any party during the time
periods described in divisions (A) and (B) of this section, the
court shall extend the time period for filing the motion or
pleading to allow both parties adequate time to comply with this
section.
(D) A cure offer must include both of the following:
(1) Language that clearly explains the resolution being
offered by the supplier consisting of the following separate
components:
(a) A supplier's remedy to resolve alleged violations of this
chapter that includes one or more things of value, such as cash,
goods, or services. The supplier's remedy shall include an
itemization of the fair market value of cash, goods, and services
included in the remedy.
(b) Reasonable attorney's fees that consist of legal fees
necessary or reasonably related to the filing of the initial
complaint, not to exceed one thousand five hundred dollars.
(2) A prominent notice that clearly and conspicuously
contains the following disclosure in substantially the following
form:
NOTICE: THIS LETTER INCLUDES A "CURE OFFER" THAT IS BEING
OFFERED TO SETTLE ALL ALLEGED VIOLATIONS OF CHAPTER 1345. OF THE
REVISED CODE RAISED BY YOUR WRITTEN COMPLAINT. THE CURE OFFER
INCLUDES BOTH A "SUPPLIER'S REMEDY" TO SOLVE THIS DISPUTE AND AN
OFFER TO PAY YOUR ATTORNEY'S FEES UP TO $1,500.00. YOU ARE NOT
OBLIGATED TO ACCEPT THIS CURE OFFER AND HAVE THE RIGHT TO CONSULT
WITH LEGAL COUNSEL BEFORE MAKING YOUR DECISION.
YOU MUST NOTIFY THE SUPPLIER WITHIN 30 DAYS OF RECEIPT OF
THIS CURE OFFER OF YOUR DECISION TO EITHER ACCEPT OR REJECT THE
OFFER BY FILING A RESPONSE WITH THE COURT AND SENDING A COPY OF
THE RESPONSE TO THE SUPPLIER. IF THE COURT DOES NOT RECEIVE YOUR
RESPONSE WITHIN THE REQUIRED TIME, YOUR FAILURE TO RESPOND WILL,
BY LAW, BE CONSIDERED REJECTION OF OUR OFFER.
REJECTION OF THIS CURE OFFER COULD IMPACT YOUR ABILITY TO
COLLECT COURT COSTS AND LEGAL FEES. IF A COURT, JURY, OR
ARBITRATOR FINDS IN YOUR FAVOR, BUT DOES NOT AWARD YOU AN AMOUNT
MORE THAN THE VALUE OF THE SUPPLIER'S REMEDY, THE SUPPLIER WILL
NOT BE RESPONSIBLE FOR TREBLE DAMAGES, ATTORNEY'S FEES, OR ANY
COURT COSTS YOU INCUR AFTER THE DATE THIS CURE OFFER WAS MADE
(fill in the date).
VALUE OF SUPPLIER'S REMEDY = $(fill in the blank)
ATTORNEY'S FEES = $(fill in the blank)
TOTAL VALUE OF CURE OFFER = $(fill in the blank)
(E) If the consumer files a notice rejecting the cure offer
provided by the supplier, if a cure offer is deemed rejected
pursuant to division (B) of this section, or if no cure offer is
made to the consumer by the supplier within the time frame set
forth in this section, the consumer may proceed with a civil
action in accordance with this chapter.
(F) If the consumer files a notice accepting a cure offer,
the agreed upon resolution must be completed within a reasonable
time in accordance with court supervision. The court may at any
time, in its discretion, extend any deadlines set forth by rule,
statute, or order of the court for filing motions or pleadings, or
conducting discovery in order to allow the resolution to be
completed.
(G) If a judge, jury, or arbitrator awards actual economic
damages as defined in section 1345.09 of the Revised Code that are
less than the value of a supplier's remedy included in a cure
offer made pursuant to this section, the consumer shall not be
entitled to any of the following:
(1) An award of treble damages;
(2) Any court costs incurred by the consumer after the date
the consumer or the consumer's attorney receives the cure offer;
(3) Any attorney's fees incurred by the consumer after the
date the consumer or the consumer's attorney receives the cure
offer from the supplier.
The comparison of actual economic damages and the supplier's
remedy shall not take into consideration statutory treble damages,
court costs, or attorney's fees.
(H) A cure offer is admissible in a judicial proceeding only
if the offer was timely delivered in accordance with this section
and only for the limited purpose of determining whether treble
damages may be awarded and the amount of court costs and
reasonable attorney's fees that may be awarded. A cure offer is
not admissible in a court proceeding for any other purpose.
(I) As used in this section, "cure offer" means a written
offer of one or more things of value, such as cash, goods, or
services, that is made by a supplier to a consumer or to the
consumer's attorney in response to a consumer's claim of a
violation of Chapter 1345. of the Revised Code. A cure offer shall
include reasonable legal fees necessary or reasonably related to
the filing of the initial complaint of up to one thousand five
hundred dollars.
(J) This section does not apply to claims for personal injury
or death.
Section 2. That existing section 1345.09 of the Revised Code
is hereby repealed.
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