Unifund CCR Partners v. Piaser

[Cite as Unifund CCR Partners v. Piaser, 2018-Ohio-2575.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

UNIFUND CCR PARTNERS, : OPINION

Plaintiff-Appellant, :
CASE NO. 2017-A-0003
DAVID ROSENBERG, et al., :

Counterclaim :
Defendants-Appellants,
:
- vs -
:
LISA R. PIASER,
:
Defendant-Appellee.
:

Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2010 CV
80.

Judgment: Affirmed in part, reversed in part, and remanded.

Alan H. Abes and Elizabeth M. Shaffer, Dinsmore & Shohl, LLP, 255 East Fifth Street,
Suite 1900, Cincinnati, OH 45202 (For Plaintiff-Appellant and Counterclaim
Defendants-Appellants).

Robert S. Belovich, 9100 South Hills Boulevard, Suite 320, Broadview Heights, OH
44147, and Anand N. Misra, The Misra Law Firm, L.L.C., 3659 Green Road, #100,
Beachwood, OH 44122 (For Defendant-Appellee).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellants, Unifund CCR Partners, et al. (“Unifund”), appeal the judgment

of the Ashtabula County Court of Common Pleas granting in part appellee, Lisa R.
Piaser’s, motion for class certification on her counterclaim for violations of the federal

Fair Debt Collection Practices Act (“FDCPA”). At issue is whether the trial court abused

its discretion in partially granting Ms. Piaser’s motion. For the reasons that follow, the

judgment is affirmed in part, reversed in part, and remanded.

{¶2} On October 15, 2009, Unifund filed a complaint against Ms. Piaser in the

Ashtabula County Municipal Court to collect an alleged credit card debt. Unifund

alleged that Providian National Bank was the original creditor and that the account had

been assigned to it. The account was open from April to June 2000. The complaint

alleged that the charge-off balance in 2001 was $267 and that, with interest, the amount

due is now $684.

{¶3} In her first amended answer and counterclaim, Ms. Piaser denied the

material allegations of the complaint, including that she owed any amount under the

account. She also asserted individual and class counterclaims for violations of the

FDCPA, the Ohio Consumer Sales Practices Act (“CSPA”), and various common law

claims. Ms. Piaser alleged Unifund is a debt collector under the FDCPA and is in the

business of acquiring and collecting defaulted consumer credit card debt. She alleged

Unifund violated the FDCPA, at 15 U.S.C. 1692e, by making false and misleading

representations in lawsuits and demanding payment. Ms. Piaser prayed for damages

and injunctive relief. Upon assertion of her counterclaims, the municipal court

transferred the case to the Common Pleas Court.

{¶4} On September 1, 2010, Unifund filed a motion for summary judgment on

Ms. Piaser’s counterclaims. On June 28, 2013, the trial court granted the motion in

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Unifund’s favor on Ms. Piaser’s common law claims, leaving only her counterclaims for

violations of the FDCPA and the CSPA. In its entry, the court noted:

{¶5} [Unifund] contends that R.C. 1319.12 [regarding the collection of
assigned debts] does not apply because it was not acting as a
collection agency, but was pursuing collection of the debt against
[Ms. Piaser] on its own behalf, as the purchaser of the obligation.
If true, this could be correct as to [Ms. Piaser]. [Ms. Piaser] claims
that [Unifund] cannot show that it received a valid assignment of
her claimed credit card obligation to Providian National Bank. The
Court finds that, on the state of the record, there remains an issue
of fact as to this contention.

{¶6} On December 14, 2014, Ms. Piaser filed a motion seeking to certify her

counterclaims as a class action and Unifund filed a brief in opposition. She also filed a

motion for sanctions due to Unifund’s alleged failure to comply with the court’s

September 4, 2014 discovery order requiring Unifund to produce documents related to

the ownership of Ms. Piaser’s account. Unifund filed a brief in opposition.

{¶7} In her motion for class certification, Ms. Piaser requested the court certify

two classes, which she referred to as the “Incompetence Class” and the “Time-Bar

Class.” Since the court ultimately granted her motion to certify only as to the

Incompetence Class, our analysis is confined to that class. Ms. Piaser has also filed an

appeal of the trial court’s denial of her motion to certify the Time-Bar Class. That appeal

is also pending and will be addressed in a separate opinion.

{¶8} Ms. Piaser’s proposed common class criteria for each member of the

Incompetence Class (hereafter “the class”) are that each member is (1) an individual;

(2) against whom Unifund filed a lawsuit in Ohio; (3) to collect a debt related to a credit

card; and (4) that the suit was filed on or after December 23, 2008 and thus with a one

year look back period. Ms. Piaser also included the following additional class criteria:

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“At the time of filing of the lawsuit, an entity other than [Unifund] held the right, in whole

or part, to receive the money that was sought to be collected through the lawsuit.

{¶9} In her brief in support of her motion to certify, Ms. Piaser argued that

Unifund does not own her account due to the lack of an assignment from the account’s

owner, Unifund Portfolio E, L.L.C. (“Portfolio E”), but, rather, was merely a debt

collector. In support, she pointed out that in Unifund’s answer to the counterclaim, it

admitted it merely “manages the collection of distressed consumer receivables.”

{¶10} Ms. Piaser further argued that the accounts of the purported class

members are owned by several limited liability companies that are affiliated with

Unifund, which it refers to as “Special Purpose Vehicles” (“SPVs”). Unifund’s vice-

president, Jeffrey Shaffer, testified in deposition that the “special purpose” of the SPVs

is to purchase defaulted credit card accounts from creditors. Mr. Shaffer said that the

SPVs purchase the accounts and Unifund is the “servicer” on these accounts.

{¶11} Further, Scott Walther, another Unifund vice-president, testified as to how

defaulted accounts are purchased. He said Unifund acquires portfolios of defaulted

credit card accounts with funds invested by one or more of the SPVs. He said that

when the SPV(s) contribute funds for the purchase of a portfolio of defaulted accounts

from a creditor, this is considered an investment. When Unifund purchases a portfolio

of defaulted accounts, the accounts in the purchased portfolio are transferred to the

balance sheets of the investing SPVs by a process that Unifund refers to as “marking.”

{¶12} Mr. Walther said that when a payment comes in on an account, either in

collection proceedings or in a later sale of the account, the proceeds are placed into a

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trust account. The funds are then split between Unifund and the SPV (as a return on its

investment) and the SPV pays a collection fee to Unifund.

{¶13} In this case, the SPV that invested the funds to purchase Ms. Piaser’s

account was Portfolio E. After the acquisition of this account, Unifund transferred or

“marked” it to Portfolio E, and thereafter any funds collected on Ms. Piaser’s account

would have been given to Portfolio E.

{¶14} Ms. Piaser argued that Unifund’s act of “marking” or transferring the

accounts it purchased to the SPVs (whose funds were used to purchase them) resulted

in a transfer of ownership of the account to the SPV. As a result, she argued that

before Unifund could sue her, Unifund was required, but failed, to obtain an assignment

of the account from Portfolio E that complied with R.C. 1319.12. She said Unifund

failed to produce in discovery any assignment from Portfolio E of Ms. Piaser’s account.

She argued that because her account was never assigned to Unifund, its allegation in

the complaint that it was entitled to sue on her account in its own name was a

misrepresentation and, thus, a violation of the FDCPA.

{¶15} In a separate motion for sanctions, Ms. Piaser argued she has been

unable to determine the exact interest Unifund transferred by way of “marking” her

account to Portfolio E. She said this is due to Unifund’s failure to comply with the

court’s prior discovery order requiring it to provide documents aimed at determining the

interest Portfolio E received as a result of Unifund marking Ms. Piaser’s account to it.

{¶16} Unifund filed a brief in opposition to Ms. Piaser’s motion to certify, arguing

that it, i.e., Unifund, owns and holds title to Ms. Piaser’s account and that, as a result,

Unifund was not required to obtain an assignment in order to sue her on the account. In

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support, Unifund attached a bill of sale showing it purchased Ms. Piaser’s account from

Providian; however, the bill of sale from Providian to Unifund sheds no light on what

interest, if any, was acquired by Portfolio E in the account as a result of Unifund’s later

transfer or marking the account to Portfolio E in exchange for Unifund’s use of its funds

to purchase the account. Unifund argued that marking an account has nothing to do

with who holds title to the account. Instead, marking simply designates which SPV will

receive a portion of collected funds from the account as a return on the funds the SPV

invested to purchase the portfolio containing the account.

{¶17} On December 6, 2016, the trial court entered judgment partially granting

Ms. Piaser’s motion for class certification. However, the court found Ms. Piaser’s

definition of the class to be overbroad and modified it to read as follows (with the court’s

additional language in bold): “At the time of filing of the lawsuit, an entity other than

[Unifund] held the right, in whole or part, to receive the money that was sought to be

collected through the lawsuit, and [Unifund] did not meet the FDCPA requirements

to lawfully file suit to collect the debt in its own name.” (Emphasis in original.)

{¶18} The court also granted in part Ms. Piaser’s motion for sanctions. Unifund

argued that, because it did not consider Portfolio E as the owner of Ms. Piaser’s

account, in its view, it was not required to produce the documents listed in the court’s

discovery order. The court rejected Unifund’s interpretation of the court’s order, and

found that the issue of Portfolio E’s ownership interest in Ms. Piaser’s account was the

“crux” of this case and again ordered Unifund to turn over the requested documents

within 45 days. These included (1) the servicing agreement Unifund entered into with

Portfolio E, (2) the accounting documents demonstrating Portfolio E’s interest in Ms.

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Piaser’s account, and the (3) transfer documents showing the rights of the parties

during the initial investment and during the “marking” process. After both parties

appealed in part the court’s class-certification judgment, the trial court entered a stay of

proceedings pending further order and the record does not show whether Unifund has

complied with the court’s discovery order.

{¶19} Unifund appeals the trial court’s judgment, asserting the following for its

sole assignment of error:

{¶20} “The trial court abused its discretion by granting Ms. Piaser’s motion to

certify an incompetence class.”

{¶21} As a preliminary matter, the trial court’s judgment was a final order

because it was an order that determined whether the action may be maintained as a

class action. R.C. 2505.02(B)(5).

{¶22} On appeal, the parties essentially repeat the arguments they made below.

Ms. Piaser argues that, as a result of Unifund’s practice of marking, the SPVs that

invested in the purchase of the defaulted accounts have a right to the collection

proceeds, with Unifund receiving a collection service fee. She argues the relationship

between Unifund and the SPVs makes the SPVs the owners of the accounts and

Unifund a debt collector subject to the FDCPA. She argues Unifund’s practice of filing

suit in its own name without obtaining an assignment from the SPVs in compliance with

R.C. 1319.12 when one or more of the SPVs own the accounts violates the FDCPA by

using false or misleading representations in the complaint.

{¶23} In opposition, Unifund argues that it is the owner of the account and, thus,

was not required to have an assignment in order to sue on the account. Unifund argues

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that, although Ms. Piaser’s account was marked to Portfolio E, that did not make this

SPV the owner of the account because, in Unifund’s view, marking is not the same as

transferring title to the account. Unifund argues that marking the account simply

designates which SPV will receive the revenue from the account as a return on the

funds the SPV invested to purchase the account.

{¶24} The Supreme Court of Ohio has held that “[a] trial judge has broad

discretion in determining whether a class action may be maintained and that

determination will not be disturbed absent a showing of an abuse of discretion.” Marks

v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200 (1987), syllabus. Thus, appellate courts

generally give trial courts broad discretion in deciding whether to certify a class.

Hamilton v. Ohio Savings Bank, 82 Ohio St.3d 67, 70 (1998). The Ohio Supreme Court

has stated that “the appropriateness of applying the abuse-of-discretion standard in

reviewing class action determinations is grounded * * * in the trial court’s special

expertise and familiarity with case-management problems and its inherent power to

manage its own docket.” Id., citing Marks, supra, at 201.

{¶25} However, “the trial court’s discretion in deciding whether to certify a class

action is not unlimited, and indeed is bounded by and must be exercised within the

framework of Civ.R. 23. The trial court is required to carefully apply the class action

requirements and conduct a rigorous analysis into whether the prerequisites of Civ.R.

23 have been satisfied.” Hamilton, supra. Where the trial court’s written decision

granting class certification provides an articulated rationale sufficient to support an

appellate inquiry into whether the relevant factors were properly applied and given

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appropriate weight, the trial court does not abuse its discretion in conducting its rigorous

analysis. Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 480, 483 (2000).

{¶26} In reviewing a motion for class certification, the court must take the

substantive allegations of the claim as stated in the complaint (or counterclaim) as true

and not reach the merits of those allegations and claims. Ojalvo v. Bd. of Trustees of

Ohio State Univ., 12 Ohio St.3d 230, 233 (1984). “Class action certification does not go

to the merits of the action.” Id. However, the trial court may probe the merits for the

limited purpose of determining that the plaintiff has satisfied Civ.R. 23. Felix v. Ganley

Chevrolet, Inc., 145 Ohio St.3d 329, 2015-Ohio-3430, ¶26. “[A]ny doubts about

adequate representation, potential conflicts, or class affiliation should be resolved in

favor of upholding the class, subject to the trial court’s authority to amend or adjust its

certification order as developing circumstances demand, including the augmentation or

substitution of representative parties.” Baughman, supra, at 487.

{¶27} “The following seven requirements must be satisfied before an action may

be maintained as a class action under Civ.R. 23: (1) an identifiable class must exist and

the definition of the class must be unambiguous; (2) the named representatives must be

members of the class; (3) the class must be so numerous that joinder of all members is

impracticable; (4) there must be questions of law or fact common to the class; (5) the

claims or defenses of the representative parties must be typical of the claims or

defenses of the class; (6) the representative parties must fairly and adequately protect

the interests of the class; and (7) one of the three Civ.R. 23(B) requirements must be

met. Jacobs v. FirstMerit Corp., 11th Dist. Lake No. 2013-L-012, 2013-Ohio-4308, ¶24,

citing Civ.R. 23(A) and (B); Warner v. Waste Mgt., Inc., 36 Ohio St.3d 91 (1988).

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 {¶28} The Ohio Supreme Court, in Taylor v. First Resolution Invest. Corp., 148

Ohio St.3d 627, 2016-Ohio-3444, ¶7, stated:

{¶29} “Congress passed the FDCPA to address ‘what it considered to be
a widespread problem’ of consumer abuse at the hands of debt
collectors.” Wise v. Zwicker & Assocs., P.C., 780 F.3d 710, 712-
713 (6th Cir.2015), quoting Frey v. Gangwish, 970 F.2d 1516, 1521
(6th Cir.1992). The intent of the FDCPA is to “eliminate abusive
debt collection practices” that have contributed to personal
bankruptcies, job loss, and invasions of individual privacy. 15
U.S.C. 1692(a) and (e); Jerman v. Carlisle, McNellie, Rini, Kramer
& Ulrich, L.P.A., 559 U.S. 573, 577 (2010). “In reaction to the size
of the problem, [Congress] crafted ‘an extraordinarily broad’
remedial statute.” Wise at 713, quoting Frey at 1521. The FDCPA
prohibits debt collectors from employing “any false, deceptive, or
misleading representation * * * in connection with the collection of
any debt[.]” 15 U.S.C. 1692e(2)(A). (Emphasis added.)

{¶30} Ms. Piaser alleges Unifund is a “debt collector” whose litigation activity is

subject to the FDCPA. Her counterclaim alleged Unifund violated Sec. 1692e of the

FDCPA (which prohibits a debt collector from using any false or misleading

representation in the collection of a debt) by alleging in its complaint it was the owner of

the account without obtaining an assignment from Portfolio E that complied with R.C.

1319.12. That section provides, in pertinent part:

{¶31} (A)(1) “[C]ollection agency” means any person who, for
compensation, * * * offers services to collect an alleged debt
asserted to be owed to another.

{¶32} (B) A collection agency * * * may take assignment of another
person’s accounts * * * in its own name for the purpose of * * *
collecting * * * or filing suit in its own name as the real party in
interest.

{¶33} (C) No collection agency shall commence litigation for the collection
of an assigned account unless it has taken the assignment in
accordance with all of the following [pertinent] requirements:

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 {¶34} (1) The assignment was * * * properly executed * * *and
acknowledged by the person transferring title to the collection
agency.

{¶35} * * *

{¶36} (3) The assignment was manifested by a written agreement * * *.
The written agreement shall state the effective date of the
assignment and the consideration paid or given, if any, for the
assignment * * *.

{¶37} In support of her FDCPA claim, Ms. Piaser cites Wallace v. Washington

Mut. Bank, 683 F.3d 323, 327 (6th Cir.2012). In that case, the mortgage debtor brought

an action alleging that the bank’s law firm violated the FDCPA and state law by filing a

foreclosure action on behalf of the bank because the bank did not own her mortgage or

promissory note. The district court dismissed the complaint, but, on appeal, the Sixth

District reversed. The court held the mortgage debtor’s allegation that the law firm filed

the foreclosure action claiming ownership of the mortgage by the bank before it

received the transfer-of-ownership documents was sufficient to state a claim for material

misrepresentation under the FDCPA (15 U.S.C. 1692e), even if state law permitted the

client to anticipate that it would become the title-holder after the foreclosure action was

initiated, but before it became final. The Sixth Circuit stated:

{¶38} District courts have decided, and we agree, that a clearly false
representation of the creditor’s name may constitute a “false
representation * * * to collect or attempt to collect any debt” under
Section 1692e. Hepsen v. J.C. Christensen and Assocs., Inc., No.
8:07-CV-1935-T-EAJ, 2009 WL 3064865, *5 (M.D.Fla. Sept. 22,
2009) (imposing liability based on a statement incorrectly identifying
the name of a creditor comports with the purposes of the Act) * * *.
Wallace, supra

{¶39} Further, this court has stated: “A collection agency may file suit in its own

name only when it has become the legal and equitable owner of the debt through an

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assignment that satisfies all of the requirements set forth in R.C. 1319.22” Capital One

Bank (USA), NA v. Reese, 11th Dist. Portage No. 2014-P-0034, 2015-Ohio-4023, ¶89.

{¶40} IDENTIFIABLE CLASS AND UNAMBIGUOUS CLASS DEFINITION

{¶41} “‘The requirement that there be a class will not be deemed satisfied unless

the description of it is sufficiently definite so that it is administratively feasible for the

court to determine whether a particular individual is a member.”’ Hamilton, supra, at 71-

72, quoting 7A Wright, Miller & Kane, Federal Practice and Procedure 120-121, Section

1760 (2d Ed.1986). Thus, the class definition must be precise enough “‘to permit

identification within a reasonable effort.’” Hamilton, supra, quoting Warner, supra, at 96.

“An identifiable class must exist before certification is permissible. The definition of the

class must be unambiguous.” Warner, paragraph two of the syllabus. Where a class is

overbroad and could include a substantial number of people who have no claim under

the theory advanced by the named plaintiff, the class is not sufficiently definite. Miller v.

Painters Supply & Equip. Co., 8th Dist. Cuyahoga No. 95614, 2011-Ohio-3976, ¶24.

{¶42} In its judgment, the trial court found that Ms. Piaser’s class definition was

overbroad because it would include consumers who have no claim since, under the

FDCPA, there is no blanket prohibition against a plaintiff in a collection lawsuit filing suit

in its own name to collect a debt owed to another entity. The court found the proposed

class definition would include individuals who were not harmed by any unlawful conduct.

In an attempt to limit the class members to those for whom Unifund lacked standing to

sue, the court modified the class definition. That definition, with the court’s modification

in bold, states:

{¶43} At the time of filing of the lawsuit, an entity other than [Unifund]
held the right, in whole or part, to receive the money that was

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 sought to be collected through the lawsuit, and [Unifund] did not
meet the FDCPA requirements to lawfully file suit to collect
the debt in its own name. (Emphasis sic.)

{¶44} Unifund argues the trial court abused its discretion in certifying the class

because the class definition, as modified by the trial court, is an impermissible “fail safe”

class. In support, Unifund relies on Stammco, L.L.C. v. United Tel. Co. of Ohio, 136

Ohio St.3d 236, 2013-Ohio-3019, ¶8, n.2, in which the Ohio Supreme Court (quoting

Melton ex rel. Dutton v. Carolina Power & Light Co., 283 F.R.D. 280, 288 (D.S.C.2012),

stated:

{¶45} “A fail safe class definition is one in which the putative class is
defined by reference to the merits of the claim. See Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 826 (7th Cir.2012) *
* *. It requires a court to rule on the merits of the claim at the class
certification stage in order to tell who was included in the class. Id.
“Such a class definition is improper because a class member either
wins or, by virtue of losing, is defined out of the class and is
therefore not bound by the judgment.” Messner, 669 F.3d at 826.

{¶46} Unifund argues the class definition here defines a fail safe class because

it includes the criterion that Unifund did not meet the FDCPA requirements to lawfully

file suit in its own name. Unifund argues the class is improperly defined by reference to

the merits of the claim because, for each class member, the court would have to find

whether Unifund met the FDCPA requirements to tell who was included in the class.

{¶47} Other examples of fail safe class definitions include language such as

activities “which violate the FDCPA,” and the collection complaints “falsely stated that

the plaintiff had taken assignment of the claims.” Cox v. Sherman Capital, LLC, No.

1:12-cv-01654, 2016 WL 274877, *4 (S.D.Ind.2016); Eager v. Credit Bureau Collection

Servs., Inc., Nos. 1:13-CV-30, etc., 2014 WL 3534949, *2 (W.D.Mich.2014).

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 {¶48} We agree that the class definition, as amended by the trial court, defines a

fail safe class because it requires a court to rule on the merits of the claim at the class

certification stage in order to tell who is included in the class. Thus, the language in the

modified class definition should be deleted.

{¶49} However, the main issues in this case are common to the members of the

class. Marking occurs for every class member’s account that was purchased by

Unifund and the rights and obligations, if any, transferred during marking are the same

for all class member accounts. Further, Unifund concedes that the marking process

gives each SPV the right to at least part of the collection proceeds derived from each

class member’s account. For this reason, the determination of this issue can potentially

be made on a class-wide basis without the need for individualized inquiries if the class

definition can be crafted without use of fail safe language.

{¶50} This court stated that “‘Warner[, supra, at] 98, not only permits but

encourages the trial court to modify what is otherwise an unidentifiable class.’” Jacobs,

supra, at ¶29, quoting Ritt v. Billy Blanks Enters., 8th Dist. Cuyahoga No. 80983, 2003-

Ohio-3645, ¶20. Specifically, courts have discretion to redefine a class to avoid the fail

safe problem by, for example, making the class definition neutral by describing the

defendant’s conduct without interjecting an assumption of liability. Spread Enters., Inc.

v. First Data Merchant Servs. Corp., 298 F.R.D. 54, 69-70 (E.D.N.Y.2014) (court

replaced offending language that defendant charged an “excessive fee” in violation of

the subject contract with neutral language that he charged a particular fee).

{¶51} The Ohio Supreme Court has stated that if the appellate court finds an

abuse of discretion by the trial court in its definition of the class, the appellate court

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should not proceed to formulate the class itself. Rather, the court should remand the

matter to the trial court. Stammco, supra, at ¶12. This is because “the trial judge who

conducts the class action and manages the case must be allowed to craft the definition

with the parties.” Id. Thus, rather than attempt to redefine (or narrow) the class

ourselves, we remand the case to the trial court to do so.

{¶52} On remand, the court should remove the fail safe language and, if

possible, modify or narrow the remaining provisions of the definition in such a way that

the putative class is not defined by reference to the merits of the claim. In this

endeavor, the court should consider referencing Unifund’s practice of marking, but

removing the language that presupposes Unifund is liable for an FDCPA violation.

{¶53} WHETHER LISA PIASER IS A MEMBER OF THE CLASS

{¶54} Unifund argues that Ms. Piaser is not a member of the class because,

unlike the case with other class members, Unifund has title to her account and was thus

entitled to sue her without an assignment. However, contrary to Unifund’s argument,

the fact that it has a bill of sale for Ms. Piaser’s account does not address the central

issue here, which is the legal effect of Unifund’s marking the account to Portfolio E after

Unifund bought it from Providian. Unifund faults the trial court for not making a “rigorous

analysis” concerning whether Portfolio E or Unifund owns Ms. Piaser’s account.

However, Unifund cannot fairly make this argument because it failed to comply with the

trial court’s discovery order to produce documents pertinent to this issue. While

Unifund’s principals provided testimony supporting Ms. Piaser’s position, without

Unifund’s compliance with the court-ordered document production, the trial court was

15
unable to determine at the certification stage whether the marking process resulted in

the transfer of ownership to Portfolio E.

{¶55} Unifund acknowledges the trial court found in its judgment that Ms. Piaser

is a member of the class because her account was marked to an SPV like those of

other class members and that whether that proves to be a FDCPA violation is an

unresolved question for the trier of fact that survived summary judgment. However,

Unifund argues Ms. Piaser was required to prove Unifund does not own the account in

order to be a member of the class. Again, Unifund’s argument is disingenuous because

it hindered Ms. Piaser in making such showing by failing to comply with the court’s order

that it produce its documents that bear on this issue. After Unifund complies with the

court’s discovery order, the issue will be decided at trial.

{¶56} NUMEROSITY

{¶57} Unifund does not dispute the court’s finding that the class identified by Ms.

Piaser is so numerous that joinder of all members is impracticable. The court noted that

Ms. Piaser presented evidence that more than 3,000 accounts would fall into the class.

{¶58} COMMONALITY AND TYPICALITY

{¶59} Unifund argues that Ms. Piaser’s claims are not common to or typical of

the class. Commonality requires “a common nucleus of operative facts.” Warner,

supra, at 97. “The requirement for typicality is met where there is no express conflict

between the class representatives and the class.” Hamilton, supra, at 77. The trial court

identified the following common questions: (1) “the extent that marking the accounts

and investment by the SPVs transfers ownership of the accounts to the SPVs,” (2)

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“whether the SPVs must be named as parties to the action,” and (3) “whether [Unifund]

is the real party in interest.”

{¶60} As the trial court noted, Ms. Piaser asserts that she was sued by Unifund

on a debt that was marked to at least one SPV, Portfolio E. As such, the court found

that her claim appears to be the same as the claims held by other members of the

class. The court also noted that the defenses raised by Unifund would be the same as

it would raise against the claims held by the other class members. Ms. Piaser thus

satisfied the commonality and typicality requirements.

{¶61} ADEQUACY OF REPRESENTATION

{¶62} A representative party is adequate if his or her interest is not antagonistic

to that of other class members Warner, supra, at 98. No evidence in the record

indicates any conflict between Ms. Piaser and the class.

{¶63} THE CIV.R. 23(B) FACTORS

{¶64} Having found all Civ.R. 23(A) factors were met, the trial court was also

required to determine that at least one of the three Civ.R. 23(B) factors was met. The

court found that two apply. Under Civ.R. 23(B)(2), the court must find that the class is

seeking to prevent future injury or damages by enjoining the class action defendant

from engaging further in the practices alleged in the suit as violating the law. Civ.R.

23(B)(2) applies to suits seeking injunctive relief. Warner, supra, at 95. The trial court

found that in her counterclaim, Ms. Piaser “is seeking, in addition to money damages,

that [Unifund] be ordered to develop and implement procedures in order to ensure they

meet the requirement of standing to sue.” Unifund argues that injunctive relief is not

available because the class remedy would be primarily monetary rather than injunctive.

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However, the Ohio Supreme Court has stated that disputes over whether the action is

primarily for injunctive relief rather than a monetary award neither promote the

disposition of the case on the merits nor represent a useful expenditure of energy.

Hamilton, supra, at 87. Thus, such disputes should be avoided, and if injunctive relief

has been requested, the action should be allowed to proceed under Civ.R. 23(B)(2).

Hamilton at 87. Since Ms. Piaser seeks injunctive relief in addition to a monetary

award, the Civ.R. 23(B)(2) factor was satisfied. Several federal courts have allowed

injunctive relief in private class actions alleging FDCPA violations. See, e.g., Schwarm

v. Craighead, 233 F.R.D. 655, 663 (E.D.Cal.Mar. 7, 2006).

{¶65} Civ.R. 23(B)(3) applies where the plaintiff seeks damages and the trial

court makes two findings: (1) that the questions of law or fact common to members of

the class predominate over questions affecting only individual members and (2) that a

class action is superior to other available methods for efficiently adjudicating the

controversy.

{¶66} “For common questions of law or fact to predominate, * * * the common

questions must represent a significant aspect of the case and they must be capable of

resolution for all members in a single adjudication.” Jacobs, supra, at ¶41. The trial

court noted that Ms. Piaser has asserted Unifund uses standardized procedures to

“mark” accounts to SPVs and then files lawsuits to collect on the accounts, which forms

the basis of her allegations of FDCPA violations. The court found the proposed class

apparently relies on these procedures and their alleged unlawfulness as a basis for their

claims.

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 {¶67} The court also found that class certification, as opposed to individual

litigation, is appropriate here since there is a small amount of damages at issue for all

class members and they are unsophisticated consumers who would most likely be

unaware of the legal issues raised by the class action.

{¶68} We thus hold the trial court did not abuse its discretion in finding that Ms.

Piaser met the criteria under Civ.R. 23 and in granting her motion for class certification.

{¶69} For the reasons stated in this opinion, the assignment of error is overruled.

It is the order and judgment of this court that the judgment of the Ashtabula County

Court of Common Pleas is affirmed in part, reversed in part, and remanded.

TIMOTHY P. CANNON, J.,

COLLEEN MARY O’TOOLE, J.,

concur.

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