Rimmer v. Citifinancial, Inc. , 2014 Ohio 5287 ( 2014 )


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  • [Cite as Rimmer v. Citifinancial, Inc., 2014-Ohio-5287.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 101254
    KAREN RIMMER, ETC.
    PLAINTIFF-APPELLANT
    vs.
    CITIFINANCIAL, INC.
    DEFENDANT-APPELLEE
    JUDGMENT:
    REVERSED AND REMANDED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-05-564493
    BEFORE: E.A. Gallagher, J., Boyle, A.J., and Blackmon, J.
    RELEASED AND JOURNALIZED: November 26, 2014
    ATTORNEYS FOR APPELLANT
    Brian Ruschel
    925 Euclid Avenue
    Suite 660
    Cleveland, Ohio 44115
    Patrick J. Perotti
    Dworken & Bernstein Co., L.P.A.
    60 South Park Place
    Painesville, Ohio 44077
    ATTORNEYS FOR APPELLEE
    James L. Defeo
    Kip T. Bollin
    Thompson Hine L.L.P.
    3900 Key Center
    127 Public Square
    Cleveland, Ohio 44114
    EILEEN A. GALLAGHER, J.:
    {¶1}    This is the third appeal by Karen Rimmer in her attempt to certify a class for her
    claim against Citifinancial, Inc. (“Citi”) regarding its failure to timely record the satisfaction of a
    mortgage as statutorily required.    Rimmer argues the trial court erred in changing the wording
    of the class definition as ordered by this court in its judgment and mandate issued in Rimmer v.
    Citifinancial, Inc., 8th Dist. Cuyahoga No. 99760, 2013-Ohio-5732.             Finding merit in the
    instant appeal, we reverse the decision of the trial court and remand the matter for proceedings
    consistent with this opinion.
    {¶2} The facts as reported in Rimmer at ¶ 4 - 9 are as follows:
    Thirteen years ago, in 2000, Rimmer executed a note and security agreement with
    Bank of Yorba Linda for $5,000. Her loan was subsequently assigned to
    Associates Financial Services, Inc. which was merged with Citi         several months
    later, and Citi became the holder of Rimmer’s mortgage. On April 10, 2001,
    Rimmer paid off her loan in full. On August 16, 2001, the satisfaction of the
    subject mortgage was recorded with the Cuyahoga County Recorder.
    Four years later, on June 6, 2005, Rimmer filed a class action complaint against
    Citi,   alleging Citi    failed to file an entry of satisfaction of mortgage with the
    county recorder within 90 days of full payment of the mortgage, in violation of
    R.C. 5301.36. Rimmer sought automatic damages ($250), interest, and costs as
    allowed under R.C. 5301.36(C).
    On January 25, 2006, Rimmer filed a motion for class certification seeking to
    represent a class of all persons who, from March 8, 1999, paid residential
    mortgages in full but for whom Citi did not file an entry of satisfaction of
    mortgage with the county recorder within 90 days of loan payoff.
    Rimmer moved for partial summary judgment as to her individual claim against
    Citi. Citi also moved for summary judgment, alleging that it mailed within the
    statutory time the entry of satisfaction, but the recorder failed to timely process the
    entry.
    The trial court granted summary judgment in favor of Rimmer on her individual
    claim. The court, however, denied her motion for class certification, without
    providing an analysis.
    Rimmer appealed the trial court’s denial of class certification. On appeal, we
    affirmed the summary judgment in favor of Rimmer on her individual claim,
    rejecting Citi’s   claim that it timely processed Rimmer’s release and was entitled
    to a presumption of timely delivery. Rimmer v. Citifinancial, 8th Dist. Cuyahoga
    No. 89407, 2008-Ohio-1814.
    {¶3} Applying the requirements for class certification, this court reversed the trial court’s
    decision denying class certification. 
    Id. This court
    determined that Rimmer met all seven
    requirements under Civ.R. 23. “She defined an identifiable and manageable class; a question of
    law common to all members of the class predominates over any individual legal issues that may
    arise; and a single adjudication as a class action is the most efficient and fair manner by which to
    resolve the matter.” Rimmer at ¶ 11.
    {¶4} Citi appealed to the Supreme Court of Ohio and the court remanded the case to the
    Eighth District for further consideration in light of its decision in Alexander v. Wells Fargo Fin.
    Ohio 1, Inc., 
    122 Ohio St. 3d 341
    , 2009-Ohio-2962 
    911 N.E.2d 286
    . In Alexander, the Ohio
    Supreme Court held that an arbitration agreement is applicable to statutory mortgage satisfaction
    claims.     This court, in turn, remanded to the trial court to apply Alexander. Upon remand, the
    trial court issued a decision certifying the class but excluded individuals who had an arbitration
    agreement in their loan agreements. The trial court certified the class as follows:
    All persons who from March 8, 1999 entered into a residential mortgage
    agreement (as defined by R.C. 5301.36) with Citifinancial, Inc. without entering
    into an arbitration provision agreement with Citifinancial, Inc. relating to disputes
    arising out of said mortgage agreement, and thereafter satisfied their obligation
    where Citifinancial, Inc. (or any predecessor or other entity acquired or merged
    with, or otherwise now part of Citifinancial, Inc., including any affiliates,
    subsidiaries, and/or related lending institutions) was the mortgagee at the time of
    satisfaction, and, for each such satisfied mortgage, Citifinancial, Inc. did not
    record the fact of the satisfaction in the appropriate county recorder’s office and
    pay fees required for the recording within 90 days from the date of satisfaction.
    {¶5} Rimmer filed her second appeal seeking to define the class for this litigation. On
    appeal, this court agreed with Rimmer that the trial court’s definition limited the class to persons
    who entered into mortgage agreements only with Citifinancial Inc.
    {¶6} This court determined that the trial court, by inserting the parenthetical clause “(or
    any predecessor or other entity * * * )” at the second mention of “Citifinancial Inc.” rather than at
    the first mention of “Citifinancial Inc.,” inadvertently excluded those who entered into
    agreements with Citi’s predecessors or other entities that were acquired by or merged with Citi.
    Rimmer at ¶ 41. This court ordered the trial court on remand, to revise the definition to properly
    reflect the inclusion of those individuals.
    {¶7} On remand, the trial court again failed to insert the parenthetical clause “(or any
    predecessor or other entity * * * )” after both mentions of Citifinancial as instructed by this court
    in Rimmer at ¶ 41. Rimmer now appeals asserting the following sole assignment of error:
    The trial court erred in changing the wording of the class definition ordered by
    this court in its Judgment/Mandate of December 26, 2013, by omitting certain
    mortgagors of predecessors or other entities acquired, merged with, or otherwise
    now part of Citifinancial, Inc., including affiliates, subsidiaries, and/or related
    lending institutions.
    {¶8} In her sole assigned error, Rimmer argues that the trial court must follow the
    mandate of the reviewing court. We agree.
    {¶9} In Hawley v. Ritley, 
    35 Ohio St. 3d 157
    , 
    519 N.E.2d 390
    (1988), the Ohio Supreme
    Court stated,
    [t]hus where at a rehearing following remand a trial court is confronted with
    substantially the same facts and issues as were involved in the prior appeal, the
    court is bound to adhere to the appellate court’s determination of the applicable
    law. Moreover, the trial court is without authority to extend or vary the mandate
    given.
    {¶10} This court in its prior decision mandated that the trial court insert the parenthetical
    clause “(or any predecessor or other entity * * * )” at the first and second mention of
    “Citifinancial Inc.” However, on remand, the trial court’s definition of the class only included
    the parenthetical at the first mention of Citifinancial.   The effect of this omission is to exclude
    all of those who entered into agreements with Citi’s predecessors or other entities that were
    acquired by or merged with Citi.    This result is inconsistent with the mandate of Rimmer and as
    such, must be corrected. Thus, we remand the matter for correction of the class definition to
    read:
    All persons who from March 8, 1999 entered into a residential mortgage
    agreement (as defined by R.C. 5301.36) with Citifinancial, Inc. (or any
    predecessor or other entity acquired or merged with, or otherwise now part of
    Citifinancial, Inc., including any affiliates, subsidiaries, and/or related lending
    institutions)   without entering into an arbitration provision agreement with
    Citifinancial, Inc. relating to disputes arising out of said mortgage agreement, and
    thereafter satisfied their obligation where Citifinancial, Inc. (or any predecessor
    or other entity acquired or merged with, or otherwise now part of Citifinancial,
    Inc., including any affiliates, subsidiaries, and/or related lending institutions) was
    the mortgagee at the time of satisfaction, and, for each such satisfied mortgage,
    Citifinancial, Inc. did not record the fact of the satisfaction in the appropriate
    county recorder’s office and pay fees required for the recording within 90 days
    from the date of satisfaction.
    {¶11} The judgment of the trial court is reversed and the matter is remanded for
    proceedings consistent with this opinion.
    It is ordered that appellant recover from appellee costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate be sent to said court to carry this judgment into
    execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
    Rules of Appellate Procedure.
    EILEEN A. GALLAGHER, JUDGE
    MARY J. BOYLE, A.J., and
    PATRICIA A. BLACKMON, J., CONCUR
    

Document Info

Docket Number: 101254

Citation Numbers: 2014 Ohio 5287

Judges: Gallagher

Filed Date: 11/26/2014

Precedential Status: Precedential

Modified Date: 11/26/2014