Ohio SOL for Credit Card Debts
[ Follow Ups ] [ Post Followup ] [ Credit Forum Index ]
Posted by lawguy
(207.68.86.95) on March 24, 2003 at 09:54:21:
This is in continuation of the discussion from the lower thread, where I asked where one could find the 4 year SOL covering CC debts in Ohio. Airics pointed me to Whychats website, which cited Ohio R.C. 2305.09 as giving a 4 year SOL. I am quite certain that this is not the applicable SOL for credit card debts, as obligations on credit cards arise in contract and not in tort. I checked the annotations of this statute, as well as the case law, and there is nothing that would suggest that 2305.09 applies to credit cards or other debts. A claim based on tort arises from a duty owed by one to another that is inherent in the law. i.e. a duty to operate a motor vehicle with a reasonable standard of care; a duty not to intentionally make unlawful physical contact with another, etc... A claim based on contract arises from a duty owed by one to another that is not inherent in the law, but arises by way of a promise made to the other. This is where obligations pursuant to a credit card arise. You have no duty to pay a credit card issuer unless you promise to pay them (and they won't issue it unless you promise to pay them, whether explicitly or implicitly.) There is no inherent right in the law for a credit card issuer to demand payment from a person. The right arises from the CC holder's promise to pay the debts incurred. Hence, obligations with respect to the use of a credit card arise from contract and not from tort. As such, 2305.09 would not govern a suit on a delinquent credit card, as this statute only covers "injury . . . not arising on contract. . ." The applicable statute would be either the 15 year or 6 year, depending on whether the contract was in writing. Further, 1335.02 has little bearing on the applicable SOL in Ohio. This section is simply the definitions section, and only applies to the Ohio Statute of Frauds. As it says, "As used in this section:" The definitions are not inherently applicable to any other section of the code, and there are no cases in which this definition has been applied to any other situation. Plus, this section only says that a credit card is not a "loan agreement." This does not say that it is "not a contract in writing." An Ohio case that could be used to argue that credit cards are not "contracts in writing" would be RUDOLPH BROS. v. HURST, 187 N.E.2d 190 (Ohio.App. 7 Dist, 1961): "Ohio quite clearly holds that running accounts are a series of implied contracts to which the six year statute of limitations apply" While credit cards are not exaclty running accounts, they are quite similar, and they would likely be construed as a series of implied contracts, that are not written, and to which the 6 year SOL applies. In this same case, the court said that: "In order for an action to come within statutes of limitation governing actions upon a speciality or agreement, contract or promise in writing, the action must grow out of a written instrument which acknowledges indebtedness or promises to pay in such terms as to make supplemental evidence unnecessary." What this usually requires is that the amount owed can be "calculated from the terms of the agreement itself." This is why accounts are not treated the same as written contracts for purposes of SOLs. SOLs serve the purpose of preventing stale suits from being brought, because as time passes evidence and witnesses for a suit become lost or destroyed or pass away. But with a contract from which an amount can be ascertained, that is usually evidence enough to establish the amount owed. For an account (or credit card), there must be additional evidence from which to determine the amount, and the longer the time that passes, the more likely that said evidence cannot be found. That is why written contracts will usually have longer SOL periods that oral or implied contracts. If anybody has any citations or arguments against this, please let me hear them.
Follow Ups:
Post a Followup
|
