Midland Funding, L.L.C. v. Colvin

[Cite as Midland Funding, L.L.C. v. Colvin, 2022-Ohio-572.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY

MIDLAND FUNDING, LLC,

PLAINTIFF-APPELLANT, CASE NO. 5-21-04

v.

CASSANDRA COLVIN, ET AL., OPINION

DEFENDANTS-APPELLEES.

Appeal from Hancock County Common Pleas Court
Trial Court No. 2013 CV 00459

Judgment Affirmed

Date of Decision: February 28, 2022

APPEARANCES:

H. Toby Schisler for Appellant

Ronald L. Frederick for Appellee
Case No. 5-21-04

SHAW, J.

{¶1} Plaintiffs/counterclaim-defendants-appellants, Midland Funding LLC

(“Midland”), Midland Credit Management (“Midland Credit”) and Encore Capital

Group, Inc. (“Encore”), collectively (the “Midland parties”), appeal the January 19,

2021 judgment of the Hancock County Common Pleas Court granting the motion

for class certification filed by defendant/counterclaim-plaintiff-appellee, Cassandra

Colvin (“Colvin”).

Background

{¶2} Midland is a “debt collector” as defined in 15 U.S.C. § 1692a(6) of the

Federal Debt Collection Practices Act (“FDCPA”). Generally, Midland purchases

consumer debt from other entities and attempts to collect it. Midland operates

throughout the United States and it has filed thousands of collection actions in Ohio

alone.1

{¶3} On April 22, 2013, Midland filed a complaint against Colvin in the

Hardin County Municipal Court alleging that Colvin had defaulted on a Chase Bank

credit-card account, that Midland had purchased Colvin’s delinquent account from

Chase Bank, and that, despite Midland’s informal efforts to collect the amount

owed, Colvin failed to pay the balance due.

1
Colvin alleged that in the year prior to Midland filing suit against her, Midland filed approximately 11,000
lawsuits in Ohio. For the sake of argument, the Midland parties used the 11,000 figure as an average number
of yearly filings in their motion against class certification.

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{¶4} Attached to the complaint was Colvin’s former Chase account summary

showing Colvin’s address as “7850 US Route 30 #30” in “Forest, OH 45843-8845.”

(Doc. No. 8). The Village of Forest, Ohio, is located in Hardin County.2 In the

complaint that Midland filed in the Hardin County Municipal Court, Midland

requested judgment against Colvin in the amount of $950.60 along with other

related relief.3

{¶5} On June 5, 2013, Colvin filed a motion to dismiss Midland’s complaint

alleging that she “lives in Hancock County, Ohio, and has never lived in Hardin

County, Ohio.” (Emphasis added.) (Id.) Colvin contended that while the Village of

Forest was located in “the Northwest corner of Hardin County,” her actual residence

was outside of Forest, in Hancock County. (Doc. No. 115). Further, Colvin noted

that Midland “made no allegation that there was any contract signed in Hardin

County, or any other connection to Hardin County.” (Id.) Colvin thus argued that

the Hardin County Municipal Court did not have subject-matter jurisdiction over

Midland’s action because Midland’s action did not have a territorial connection to

the court. On June 14, 2013, Midland filed a memorandum in opposition to Colvin’s

motion to dismiss citing the fact that Colvin’s listed address on her Chase account

2
The “General Definitions” in Forest, Ohio’s Codified Ordinances define “County” as “Hardin County,
Ohio.” 101.02(e). Accessible online at: https://codelibrary.amlegal.com/codes/forest/latest/forest_oh/0-0-
0-512.
3
Midland alleged that Colvin owed $929.18 along with $21.42 in interest, totaling $950.60.

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was in Forest, Ohio, and the action had been filed in Hardin County, where Forest

was located.

{¶6} On June 27, 2013, the Hardin County Municipal Court issued its ruling

on Colvin’s motion to dismiss determining that Colvin “at all times relevant lived

in Hancock County, Ohio” and that “there does not appear to be any nexus to the

territory over which [the Hardin County Municipal Court] has jurisdiction.” (Doc.

No. 8). However, the Hardin County Municipal Court did not dismiss Midland’s

action outright; rather, the court transferred Midland’s action to the Findlay

Municipal Court at Midland’s cost.

{¶7} On September 3, 2013, after the case had been transferred to the Findlay

Municipal Court, Colvin filed a combined answer to Midland’s complaint,

counterclaim against Midland, and third-party complaint adding third-party

defendants-appellees, Midland Credit and Encore, as third-party defendants.4 In her

counterclaim and third-party complaint, Colvin alleged that the Midland parties

violated FDCPA provision 15 U.S.C. § 1692i(a) when Midland filed suit against her

in the Hardin County Municipal Court because she did not reside within the

territorial jurisdiction of the Hardin County Municipal Court at the time Midland

4
Although Midland was the only plaintiff named in the complaint filed against Colvin in the Hardin County
Municipal Court, Colvin alleges that Midland, Midland Credit, and Encore “operate as a de facto single
business interest, and jointly plan all significant operations and business activities, including but not limited
to, debt collection and litigation of collection lawsuits in Ohio * * *.” (Doc. No. 8). The Midland parties
adamantly dispute this allegation.

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filed its complaint and she did not sign the contract underlying her alleged debt to

Chase Bank within the territorial jurisdiction of the Hardin County Municipal

Court.5

{¶8} Colvin further maintained that the Midland parties “regularly file[]

collection actions against Ohio residents in counties where the defendant does not

live and did not sign a contract, including * * * instances where [the Midland parties]

used the city or village of defendants’ postal address without determining the

physical location of the address,” in violation of the FDCPA. (Doc. No. 8).

Accordingly, Colvin asserted claims on behalf of a class of plaintiffs who were

injured by the Midland parties’ alleged violations of the FDCPA. Colvin referred

to this class of plaintiffs as the “FDCPA Class.” (Id.) Colvin requested a declaration

that the Midland parties violated the FDCPA when they brought suit against class

members in improper venues, actual and statutory damages as provided for by 15

5
15 U.S.C. 1692i reads:

(a) Venue

Any debt collector who brings any legal action on a debt against any consumer shall—

(1) in the case of an action to enforce an interest in real property securing the
consumer's obligation, bring such action only in a judicial district or similar legal
entity in which such real property is located; or

(2) in the case of an action not described in paragraph (1), bring such action only in
the judicial district or similar legal entity—

(A) in which such consumer signed the contract sued upon; or

(B) in which such consumer resides at the commencement of the action.

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U.S.C. § 1692k(a)(1)-(2)6, and costs of the action and reasonable attorney’s fees as

provided for by 15 U.S.C. § 1692k(a)(3).

{¶9} Due to the fact that the amount of recovery Colvin was seeking

exceeded the jurisdictional limit of the Findlay Municipal Court the case was

subsequently transferred to the Hancock County Common Pleas Court.

{¶10} On November 7, 2013, the Midland parties filed their joint answer to

Colvin’s counterclaim and third-party complaint. The answer was amended

December 5, 2013.7

{¶11} In March 2015, Colvin moved to consolidate her case with case

number 2015-CV-94, Caitlin Gilbert v. Midland Funding LLC (“Gilbert”). See

Gilbert v. Midland Funding, L.L.C., 3d Dist. Hancock No. 5-19-11, 2019-Ohio-

5295, ¶ 5. On May 21, 2015, the trial court ordered that Colvin’s case be

consolidated with Gilbert for purposes of discovery.

{¶12} On February 22, 2016, with leave of the trial court, Colvin filed an

amended counterclaim/third-party complaint. On March 4, 2016, the Midland

parties filed their answer to Colvin’s amended counterclaim/third-party complaint.

6
Pursuant to 15 U.S.C. 1692k(a)(2)(B), in the case of a class action, recovery is “not to exceed the lesser of
$500,000 or 1 per centum of the net worth of the debt collector[.]”
7
In its amended answer, Midland noted that Colvin’s zip code “falls within three different counties.” (Doc.
No. 23). Because of the unusual zip code, Midland asserted, inter alia, the affirmative defense of “Bona Fide
error” to Colvin’s claims, arguing that the mistake was not intentional, which would prevent liability under
15 U.S.C. § 1692k(c), which reads “A debt collector may not be held liable in any action brought under this
subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional
and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to
avoid any such error.”

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{¶13} On June 1, 2017, Colvin filed a motion for class certification pursuant

to Civ.R. 23. Colvin sought to certify a class defined as:

a. All persons who have been sued in Ohio Courts by [the
Midland parties] from April 22, 2012 until the time this class
is certified;

b. where the address on the face of the complaint and/or the
address at which the Defendant was served are not within the
geographical limits of the court where the suit was filed; or

c. where [the Midland parties] filed suit in a court where the
contract was not signed; and

d. the debt alleged by [the Midland parties] was incurred for
personal, family or household use.

(Doc. No. 106). On June 22, 2017, the Midland parties filed their memorandum in

opposition to Colvin’s motion for class certification.

{¶14} On June 12, 2018, the trial court filed an entry analyzing Colvin’s

motion for class certification. The trial court set forth the appropriate legal

authority, including the 7 requirements for class certification under Civ.R. 23, which

all had to be satisfied in order for a class action to proceed. Cullen v. State Farm

Mut. Auto. Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, ¶ 16; Hamilton v. Ohio

Sav. Bank, 82 Ohio St.3d 67, 71 (1998). These 7 requirements include the

following:

(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

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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.

Hamilton at 71, citing Civ. R. 23(A) and (B); Warner v. Waste Mgt., Inc., 36 Ohio

St.3d 91 (1988).8

{¶15} In conducting its analysis on the class certification issue, the trial court

first concluded that the proposed class definition was identifiable and unambiguous

(satisfying requirement 1), that Colvin was a member of the proposed class

(satisfying requirement 2), and that the proposed class was sufficiently numerous

with over 150 purported examples of people who could be class members (satisfying

requirement 3). Thus the trial court found that the first 3 of the 7 class requirements

were met.

{¶16} However, in proceeding to address the “commonality,” “typicality,”

and “adequacy-of-representation” requirements (numbers 4-6 above, respectively),

the trial court determined that there were significantly different questions of law and

fact between Colvin and the proposed class members. The trial court reasoned that

Colvin’s suit was transferred to the correct jurisdiction unlike other potential class

members, that Colvin had not had a judgment rendered against her unlike other class

members, and that Colvin was only seeking statutory damages, whereas some

8
Importantly, as argued in this case under Civ.R. 23(B)(3), the 7th requirement broken into two parts:
“predominance” and “superiority.”

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potential class members might be entitled to actual damages as well. Based on these

issues, the trial court found that the proposed class did not meet all the requirements

for certification, failing requirements 4, 5, and 6. The trial court thus denied

Colvin’s motion for class certification, never reaching the 7th requirement for

certification due to its finding that requirements 4 through 6 were not met.

{¶17} Colvin appealed the trial court’s denial of class certification to this

Court in Midland Funding LLC v. Colvin, 3d Dist. Hancock No. 5-18-15, 2019-

Ohio-5382 (“Colvin I”) arguing that the trial court abused its discretion by

determining that the “commonality,” “typicality,” and “adequacy-of-

representation” requirements were not met in this matter. We analyzed each

requirement in turn, first determining that Colvin met the “commonality”

requirement because, “provided that the Midland parties did in fact file suit against

Colvin and the rest of the proposed class in improper venues, Colvin and the rest of

the proposed class suffered the exact same, complete injury as soon as suit was filed

against them.” Colvin I at ¶ 23.

{¶18} Further, we rejected the trial court’s argument that Colvin’s claims

were not common or typical of the class because her damages were only statutory

while other potential class members might have actual damages, finding that the

trial court should not dispose of a class certification solely on that basis. Further,

we noted that an examination of differing damages was “more appropriately

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addressed in the analysis of Civ.R. 23(B)(3)’s predominance and superiority

requirements,” which is the 7th requirement for class certification—the requirement

that the trial court never reached. Id. at ¶ 24. Unlike the “commonality”

requirement, the “predominance inquiry is far more demanding” and the damages

issue raised by the trial court could have been particularly relevant there. Williams

v. Countrywide Home Loans, Inc., 6th Dist. Lucas No. L-01-1473, 2002-Ohio-5499,

¶ 35, citing Jackson v. Motel 6 Multipurpose, Inc. (C.A.11, 1997), 130 F.3d 999,

1005. However, we found that using damages as the primary disqualifier in what

was effectively a lower bar to the commonality requirement was improper.

{¶19} Whereas the trial court focused on the differences between potential

class members with respect to the commonality requirement (requirement 4), we

focused on the shared attributes between Colvin and the proposed class, finding that

commonality was met in this matter. The shared attributes included the allegations

that Midland engaged in a pattern of filing suit against individuals in jurisdictions

where the individuals did not reside at the time the suit was filed and where the

individuals did not sign the contracts underlying the alleged debts. “[T]he common

issue of law is whether the Midland parties’ pattern of filing suit in such

jurisdictions, if proven, resulted in violations of the FDCPA.” Id. at ¶ 27. Thus we

determined that Colvin had satisfied the commonality requirement.

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{¶20} With the requirement of “commonality” satisfied (requirement 4), we

next addressed the issue of “typicality” (requirement 5), finding that the trial court

erred by determining that Colvin’s injury was atypical of the other members of the

class. We reasoned that Colvin and the other class members had the same injury

because “[b]eing sued in the improper venue is the injury.” Id. at ¶ 30. We

determined that even if some members of the class would be seeking actual damages

in addition to statutory damages, typicality was not defeated in this matter. After

conducting a lengthy review of the “typicality” requirements and the parties’

arguments regarding them, we summarized that:

although Colvin is claiming only statutory damages, her claims
are not atypical of the claims of class members who may be
entitled to both statutory damages and actual damages.
Furthermore, the fact that Colvin is not subject to the defense of
res judicata does not make her atypical of the class because res
judicata is likely inapplicable to many members of the proposed
class as well. Similarly, the bona fide error defense that the
Midland parties may assert against Colvin is not atypical of the
bona fide error defenses that the Midland parties may assert
against class members who were sued by the Midland parties’
internal legal department. Ultimately, Colvin’s FDCPA fair-
venue claim arises from the same alleged conduct that gives rise
to the fair-venue claims of absent class members, and Colvin's
claim is based on the same legal theory. See Tedrow [v. Cowels,
S.D. Ohio No. 2:06-cv-637], 2007 WL 2688276, *7; Holloway [v.
Pekay, N.D. Ill. No. 94 C 3418], 1995 WL 736925, *2. Moreover,
at least concerning class members who were sued by the Midland
parties’ internal legal department, we have been unable to
identify any express conflict between Colvin and the class. For
these class members at least, Colvin will advance their interests
and claims. Tedrow at *7 (“The proofs that are required for [the
class representatives’] claims to prevail are those necessary for

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the putative class to prevail. That is, all interests are advanced by
proving that Defendant has a policy and/or practice of bringing
civil actions against debtors in violation of federal * * * law.”).
Accordingly, we conclude that the trial court erred by holding
that Colvin completely fails to satisfy Civ.R. 23(A)(3)’s typicality
requirement.

Id. at ¶ 45.

{¶21} With our determination that the 4th and 5th requirements for class

certification had been satisfied in the trial court (commonality and typicality,

respectively), we considered the trial court’s determination with respect to the

“adequacy-of-representation” requirement in Civ.R. 23(A)(4) (requirement 6). In

our analysis, we determined that the trial court improperly focused solely on

whether the record established that Colvin was an adequate representative for her

class rather than whether Colvin’s counsel was adequate. We determined that

Colvin’s counsel was adequate and that Colvin was an adequate representative.

Further, we found that many of the same reasons the trial court used to disqualify

the commonality and typicality requirements, such as differing damages between

Colvin and other class members, were not sufficient to disqualify Colvin under the

adequacy-of-representation requirement.

{¶22} Thus, after determining that the trial court erred by denying class

certification on the basis of the 4th, 5th, and 6th requirements for class certification,

we reversed the trial court’s judgment, finding that the trial court would need to

proceed to address the 7th class certification requirement in the first instance:

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namely whether the proposed class met any of the requirements of Civ.R. 23(B).

However, we specifically stated that we offered no opinion as to whether the trial

court should ultimately certify Colvin’s proposed class.

{¶23} The Midland parties appealed our decision to the Supreme Court of

Ohio and the Court declined to accept jurisdiction. Midland Funding, L.L.C. v.

Colvin, 158 Ohio St.3d 1489, 2020-Ohio-1634 (Kennedy and DeWine, J.J.,

dissenting). After the Supreme Court of Ohio declined jurisdiction, with the case

officially remanded, the trial court held a “Zoom” hearing to discuss the impact of

this Court’s reversal. The trial court indicated that the remaining issue to be decided

with respect to class certification was whether Colvin had satisfied the 7th

certification requirement, which required Colvin to establish the presence of one of

the factors of Civ.R. 23(B). Colvin argued that the class should be certified

specifically under Civ.R. 23(B)(3), which required her to establish that “questions

of law or fact common to class members predominate over any questions affecting

only individual members, and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.” (Emphasis added.)

Civ.R. 23(B)(3).9

{¶24} The trial court allowed the parties to submit written memoranda

regarding class certification in order to make its determination on remand. Initially,

9
In short, we will refer to the Civ.R. 23(B)(3) requirements as “predominance” and “superiority.”

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the Midland parties submitted a memorandum arguing that another case released by

this Court the week before Colvin was decided—by the same panel of judges—

Gilbert v. Midland Funding LLC, 3d Dist. Hancock No. 5-19-11, 2019-Ohio-5295,

should prevent the certification of Colvin’s class, regardless of Civ.R. 23(B)(3)

factors. In essence, the Midland parties argued that our decision in Gilbert, which

interpreted the Supreme Court of Ohio’s decision in Lingo v. State, 138 Ohio St.3d

427, 2014-Ohio-1052, established that it would be improper for the Hancock County

Common Pleas Court to determine the validity of other court’s final judgments, thus

the class in that case could not be certified.

{¶25} Colvin disagreed with Midland’s reading of Gilbert, arguing that to

some extent we had already rejected the Midland parties’ arguments in Colvin I,10

and further that an FDCPA claim concerned the method of collecting debt, not

whether the underlying debt in other courts was valid. Thus Colvin argued that both

Gilbert and Lingo were inapplicable.

{¶26} With Gilbert and Lingo addressed in separate memoranda, the parties

then submitted memoranda specifically as to the issue of the remaining class

certification requirements in Civ.R. 23(B)(3). Importantly, Colvin’s memorandum

stated that in light of our decision in Colvin I, the proposed class had “reconsidered

the relief sought and available in the FDCPA matter,” stating that the proposed class

10
Gilbert was not mentioned in Colvin I other than to indicate the cases were consolidated for discovery
purposes. Lingo was not mentioned at all.

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now sought to amend the prayer for relief to seek only statutory damages on behalf

of the entire class, rather than statutory and actual damages. (Doc. No. 133). Colvin

argued that with this amendment to the damages being sought, any arguments that

the Midland parties made that differing damages among class members should

prevent a finding of predominance or superiority were, effectively, moot.

{¶27} In response, the Midland parties argued that even if Colvin met all 6

of the other requirements for class certification, which Midland still disputed despite

our holding on appeal, Colvin could not meet the predominance and superiority

requirements in Civ.R. 23(B)(3) because of the various differences between Colvin

and the class members. The Midland parties contended that the differences required

a significant amount of individual analysis in each case, especially with respect to

different defenses like “bona-fide error” and “statute of limitations.” Moreover, the

Midland parties emphasized that even if Colvin had passed the lower bar of the class

certification requirement of commonality, “A predominance inquiry is far more

demanding than the Civ.R. 23(A) commonality requirement and focuses on the legal

or factual questions that qualify each class member’s case as a genuine

controversy.” Williams v. Countrywide Home Loans, Inc., 6th Dist. Lucas No. L-

01-1473, 2002-Ohio-5499, ¶ 35, citing Jackson v. Motel 6 Multipurpose,

Inc. (C.A.11, 1997), 130 F.3d 999, 1005.

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{¶28} On January 19, 2021, the trial court filed its “Decision on Remand”

readdressing Colvin’s motion for class certification in light of this Court’s

determination in Colvin I. The trial court indicated that the remaining issue before

it was to determine whether Colvin satisfied the 7th requirement for certification,

specifically Civ.R. 23(B)(3). In order to do so, Colvin had to establish the

“predominance” and “superiority” requirements. With regard to predominance, the

trial court held as follows:

In making this [predominance] determination, the Court cannot
ignore the findings of the Appellate Court on the question of
commonality addressed in its Civ.R. 23(A) analysis. * * *

This Court’s focus on the damages question as the difference
maker was rejected. With that distinction eliminated from the
equation, the Court cannot find a basis under Civ.R. 23(B) to deny
certification. Upon review of the basic underlying legal and
factual issues they remain essentially the same for all members,
i.e. were they sued in the wrong jurisdiction? See generally
Schmidt v. Avco Corp., 15 Ohio St.3d 310, 473 N.E.2d 822.

The Court further notes that, unlike in [Gilbert], a similar
case to this, the class action will not fail on the grounds that it
violates the precedent set by Lingo v. State of Ohio, 138 Ohio St.3d
427, 2014-Ohio-1052. Here, Colvin makes clear that the only
damages she now seeks are for statutory damages that arise under
the FDCPA as a result of the alleged violations by Midland of the
fair-venue provision. See 15 U.S.C. § 1692i.

Colvin does not seek equitable relief in the form of
disgorgement of proceeds collected as a result of these actions. As
a result, and unlike in Gilbert, this Court would not be tasked
with determining the validity of other Court’s judgments, rather,
the only determination would be whether the fair-venue provision

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of the FDCPA was violated, and if so, award appropriate damages
under the federal statute.

(Doc. No. 135). Thus the trial court determined that “predominance” was satisfied

here.

{¶29} After finding that the “predominance” requirement was satisfied, the

trial court proceeded to the “superiority” requirement, determining that

[t]here is a significant benefit to all the proposed class members
to have this matter litigated collectively. The evidence suggests
there are many individual claims across the four corners of this
state. This presents a great difficulty to adequately address these
issues and makes likely the prospect of uneven or even conflicting
legal responses. Moreover, as many of the potential class
members never had their day in court and in some cases not been
served personally with the complaint and summons, they may not
even be aware of the potential injury. A broad based attempt to
notify class members would provide an opportunity for the
potentially aggrieved to participate. For these reasons, a class
action would be the superior method of addressing these claims.

(Id.)

{¶30} Finally, after rejecting other arguments made by the Midland parties,

the trial court found that Colvin’s motion for class certification was well-taken. The

Midland parties appealed from the trial court’s determination, asserting the

following assignment of error for our review.11

11
In its decision, the trial court ordered “Counsel for Plaintiff” to prepare an appropriate final entry. Before
a final entry could be filed, the Midland parties filed a notice of appeal. This Court administratively noted
the issue of the lack of a final appealable order since a judgment entry had not been filed, and a judgment
entry was subsequently filed reflecting the trial court’s decision. Notably, the judgment entry granted the
motion for class certification and incorporated the decision as if by reference as if it were fully restated.

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Assignment of Error

The trial court erred by granting Colvin’s Motion for Class
Certification.

{¶31} In their assignment of error, the Midland parties argue that the trial

court abused its discretion by certifying the class in this matter. Specifically, the

Midland parties argue that the predominance and superiority requirements of Civ.R.

23(B)(3) were not established.

Standard of Review

{¶32} At the trial court level, the party seeking to maintain a class action has

the burden to demonstrate that the factual and legal prerequisites to class

certification have been met. Blue Ash Auto, Inc. v. Progressive Cas. Ins. Co., 8th

Dist. Cuyahoga No. 104251, 2016-Ohio-7965, ¶ 11. However, once a trial court

has made its determination with regard to class certification, that “‘determination

will not be disturbed absent a showing of an abuse of discretion.’” Stammco, L.L.C.

v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, ¶

25 quoting Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200, 201 (1987); Colvin I

at ¶ 15. “[T]he appropriateness of applying the abuse-of-discretion standard in

reviewing class action determinations is grounded not in credibility assessment, but

in the trial court’s special expertise and familiarity with case-management problems

and its inherent power to manage its own docket.” Hamilton v. Ohio Sav. Bank, 82

Ohio St.3d 67, 70 (1988). “‘Abuse of discretion has been defined as more than an

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error of law or judgment; it implies an attitude on the part of the trial court that is

unreasonable, arbitrary, or unconscionable.’” Stammco at ¶ 25, quoting Marks at

201. “‘A finding of abuse of discretion, particularly if the trial court has refused to

certify, should be made cautiously.’” Id., quoting Marks at 201.

{¶33} Notably, the trial court’s discretion, while expansive, “‘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.’” State ex rel. Davis v. Pub. Emps. Retirement Bd.,

111 Ohio St.3d 118, 2006-Ohio-5339, ¶ 20, quoting Hamilton at 70.

Analysis

{¶34} This appeal requires us to determine whether the trial court abused its

discretion by finding that Colvin established the final requirement of class

certification pursuant to Civ.R. 23(B)(3). CivR. 23(B)(3) reads as follows:

(B) * * * A class action may be maintained if Civ.R. 23(A) is
satisfied, and if:

***

(3) the court finds that the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy. The matters pertinent to these findings include:

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(a) the class members’ interests in individually controlling the
prosecution or defense of separate actions;

(b) the extent and nature of any litigation concerning the
controversy already begun by or against class members;

(c) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and

(d) the likely difficulties in managing a class action.

{¶35} With regard to analyzing Civ.R. 23(B)(3), the Supreme Court of Ohio

has stated,

While Civ.R. 23(B)(3) sets forth the general rule, clear guidance
as to its meaning and application has been elusive. Schmidt, 15
Ohio St.3d at 313, 15 OBR 439, 473 N.E.2d 822. However, we have
held that “it is not sufficient that common questions merely exist;
rather, the common questions must represent a significant aspect
of the case and they must be able to be resolved for all members
of the class in a single adjudication. And, in determining whether
a class action is a superior method of adjudication, the court must
make a comparative evaluation of the other procedures available
to determine whether a class action is sufficiently effective to
justify the expenditure of judicial time and energy involved
therein.” Id.

In re Consol. Mtge. Satisfaction Cases, 97 Ohio St.3d 465, 2002-Ohio-6720, ¶ 8.

{¶36} Some case authority has developed further guidance. For example,

numerous Ohio Appellate Courts have stated that “A predominance inquiry is far

more demanding than the Civ.R. 23(A) commonality requirement and focuses on the

legal or factual questions that qualify each class member’s case as a genuine

controversy.” (Emphasis added.) Repede v. Nunes, 8th Dist. Cuyahoga No. 87277,

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2006-Ohio-4117, ¶ 13,citing Williams v. Countrywide Home Loans, Inc., 6th Dist.

Lucas App. No. L-01-1473, 2002-Ohio-5499; Haas v. Behr Dayton Thermal Prods.,

L.L.C., 2d Dist. Montgomery No. 21586, 2007-Ohio-571, ¶ 27; Assn. for Hosp. &

Health Sys. v. Ohio Dept. of Human Serv., 10th Dist. Franklin No. 04AP-762, 2006-

Ohio-67, ¶ 25.

{¶37} In its decision on the matter, the trial court recited the controlling

authority then proceeded to analyze whether Civ.R. 23(B)(3) was met here. With

regard to predominance, the trial court noted that in its original decision that was

reversed by this Court, it had found that Colvin’s claims were not common or typical

of other class members largely due to Colvin seeking only statutory damages, while

other class members would be seeking statutory and actual damages. The trial court

found this to be a significant difference that was the primary factor in defeating class

certification. We disagreed with the trial court that the issue of differing damages

defeated the commonality or typicality requirements, and reversed the trial court.

After remand, the trial court stated that we had removed “damages” from the

equation “as the difference maker” in Colvin I, thus intimating that differing

damages could not prevent class certification.

{¶38} The trial court’s statement in its decision is not precisely accurate, as

we stated in Colvin I that the differing damage issue did not prevent the

“commonality” requirement from being satisfied; however, we specifically stated

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that the issue of “differing damages” was more “appropriately addressed” in the

analysis of Civ.R. 23(B)(3)’s predominance and superiority requirements. Colvin I

at ¶ 18. Thus the different damages cited by the trial court in its first decision prior

to Colvin I could have been particularly relevant in the predominance analysis

before us.

{¶39} However, after Colvin I remanded the case to the trial court, Colvin

indicated that the entire class was no longer seeking actual damages; rather, the

entire class was only seeking statutory damages. In its decision certifying the class,

the trial court emphasized this change in the damages being sought by Colvin,

stating that “Colvin makes clear that the only damages she now seeks are for

statutory damages that arise under the FDCPA as a result of the alleged violations

by Midland of the fair-venue provision.” (Doc. No. 135). Thus while the differing

damages could have been particularly relevant to the predominance issue, the class

members elected only to seek statutory damages, largely removing the issue of

damages from the analysis as the trial court ultimately stated.

{¶40} With differing damages removed from the equation, the trial court

found that the underlying factual and legal issues remained the same for all class

members: “i.e. were they sued in the wrong jurisdiction?” (Id.) Thus the trial court

determined that predominance was satisfied in this case.

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{¶41} The Midland parties attempt to undermine the trial court’s finding that

common questions of law and fact predominate in this matter by arguing, inter alia,

that the Midland parties have different defenses with respect different members of

the class. The Midland parties argue that in some cases, including Colvin’s, they

would have a very viable defense of bona-fide error under 15 U.S.C.A. 1692k(c).

In other cases, the Midland parties argue that they have a res judicata defense, or a

statute of limitations defense.

{¶42} Contrary to their argument, the Midland parties cite no controlling

authority showing that defenses against members of the class should prevent

certification of the class. While the Midland parties may have some defenses to

some or all of the class members, we cannot find that the trial court abused its

discretion in determining that the issue of defenses does not prevent certification.

This is particularly true where, as the trial court stated, the factual and legal issues

remain essentially the same, that being whether the class members were sued in the

wrong jurisdiction. “[C]lass action treatment is appropriate where the claims arise

from standardized forms or routinized procedures, notwithstanding the need to

prove reliance.”12 (Emphasis added.) Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d

67, 84 (1998). With the differing damages issue removed from the equation, we

12
The Midland parties argue that no routine procedures have been established in this matter; however, there
are allegations that Midland routinely filed collection actions in the inappropriate jurisdiction, and their
general process for filing by in-house counsel was detailed by Kimberly Klemenok’s in her deposition.

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cannot find that the trial court abused its discretion by determining that the

remaining questions common to the class predominate. The singular, narrow

question of whether the class members were sued in the wrong jurisdiction is a

“significant aspect of the case” and it is “capable of resolution for all members in a

single adjudication.” Marks v. C.P. Chem. Co., 31 Ohio St.3d 200, 204 (1987).

{¶43} We are also not persuaded by the lengthy string-cite the Midland

parties presented in their brief to this Court in an attempt to establish that

“predominance” has not been met in this matter. As Colvin responded in her brief,

there are significantly different factual and legal issues in the cases cited by the

Midland Parties that require far more individualized analysis of each class member.

For example, in Marks, supra, the Supreme Court of Ohio upheld a trial court’s

discretion denying class certification where events prior to commission of the tort

would have to be looked at for each individual, the nature of the wrongdoing would

have to be analyzed for each individual, the identity of the responsible parties had

to be established, the standard of care owed to class members could differ, and legal

liability could differ. Marks at 206.

{¶44} Similarly, in Schmidt v. Avco Corp., 15 Ohio St.3d 310, 314 (1984),

the Supreme Court of Ohio found that a trial court did not abuse its discretion by

denying class certification when individual issues predominated. The Court thus

upheld a trial court’s discretion in addition to finding that individual issues

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predominated, namely that elements of inducement and reliance had to be proven

on an individual basis. Some other cases cited by the Midland parties contain factual

or legal distinctions that do not undermine, but often in fact reaffirm, a trial court’s

broad discretion. See Hall v. Jack Walker Pontiac Toyota, Inc., 143 Ohio App.3d

678, 687 (2nd Dist.2000) (upholding trial court’s denial of class certification where

issues had to be determined such as whether contracts, advertising and loan

agreements violated the CSOA and it had to be determined the behavior of appellee

towards an individual appellant to determine whether that made appellee a credit

services organization); Cannon v. Fid. Warranty Servs., Inc., 5th Dist. Muskingum

No. CT2005-0029, 2006-Ohio-4995 (upholding trial court’s denial of class

certification where common questions did not predominate). Others cases cited by

the Midland parties just strongly illustrate how different the factual and legal

circumstances are. See Linn v. Roto Rooter, Inc., 8th Dist. Cuyahoga No. 82657,

2004-Ohio-2559, ¶ 23 (individual issues predominated where, inter alia, each

potential class member would have to be analyzed to determine “the nature of the

service provided, the representations made by technicians, and each plaintiff’s

understanding of the fee.”).13

13
We are aware that the Midland parties cite many other cases in addition to those mentioned in this opinion.
Again, broadly, we do not find that the cases cited by the Midland parties compel us to find an abuse of
discretion here.

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{¶45} We also do not find that the Midland parties have offered compelling

legal authority that would require us to overturn the trial court’s discretion on this

issue. Accordingly, we find that the trial court did not abuse its discretion by

determining that the predominance requirement for certification was met here.

{¶46} Next, we turn to the trial court’s finding with regard to the

“superiority” requirement of class certification. In its decision, the trial court found

that there was a significant benefit to the class members to have the case adjudicated

collectively. The trial court also found that there were numerous claims all over the

state that could lead to uneven or conflicting legal responses. Further, the trial court

stated, “A broad based attempt to notify class members would provide an

opportunity for the potentially aggrieved to participate.” (Doc. No. 135). Thus the

trial court determined that a class action would be the superior method of addressing

these claims.

{¶47} Again, we can find no abuse of discretion with the trial court’s

analysis. We reiterate that the Supreme Court of Ohio has stated, “[T]he

appropriateness of applying the abuse-of-discretion standard in reviewing class

action determinations is grounded not in credibility assessment, but in the trial

court’s special expertise and familiarity with case-management problems and its

inherent power to manage its own docket.” (Emphasis added.) Hamilton v. Ohio

Sav. Bank, 82 Ohio St.3d 67, 70 (1988). Stated differently, “[a] trial court which

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routinely handles case-management problems is in the best position to analyze the

difficulties which can be anticipated in litigation of class actions.” Marks v. C.P.

Chem. Co., 31 Ohio St.3d 200, 201 (1987). Here, the trial court seems satisfied that

there is a desirability of concentrating the litigation, that the Hancock County

Common Pleas Court would be an appropriate forum to produce more uniform

responses to the matter, and that the class itself is manageable. See Civ.R. 23(B).

{¶48} Moreover, the Supreme Court of Ohio stated in Hamilton,

The purpose of Civ.R. 23(B)(3) was to bring within the fold of
maintainable class actions cases in which the efficiency and
economy of common adjudication outweigh the interests of
individual autonomy. * * * Thus, “[t]his portion of the rule also
was expected to be particularly helpful in enabling numerous
persons who have small claims that might not be worth litigating
in individual actions to combine their resources and bring an
action to vindicate their collective rights.” 7A Wright, Miller &
Kane, supra, at 518, Section 1777.

Hamilton at 80. After reviewing the record, the applicable legal authority, and the

arguments of the parties, we cannot find that the trial court abused its discretion by

finding that the “superiority” requirement of class certification was met here.

{¶49} Finally, before we conclude, we must address a separate argument

raised by the Midland parties. Throughout their brief, the Midland parties contend

that Gilbert v. Midland Funding, L.L.C., 3d Dist. Hancock No. 5-19-11, 2019-Ohio-

5295, and Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, should prevent

recovery in this matter because, in order for Colvin’s class to prevail, the trial court

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would have to invalidate or “void” judgments from other courts over which the trial

court did not have jurisdiction. We disagree. Just as the trial court suggested,

recovery in this matter (assuming any affirmative defenses such as bona-fide error

are overcome) depends only upon whether the FDCPA was violated. The validity

of other court’s judgments would not be determined.14 Thus we do not find that

Gilbert or Lingo control here.

{¶50} In sum, we find that the trial court did not abuse its discretion by

finding that the “predominance” and “superiority” requirements of class

certification were established in this matter. The Midland parties’ arguments to the

contrary are not well-taken, and their assignment of error is overruled.

Conclusion

{¶51} For the foregoing reasons the Midland parties’ assignment of error is

overruled and the judgment of the Hancock County Common Pleas Court is

affirmed.

Judgment Affirmed

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur

/jlr

14
The Midland parties argue that Gilbert is a member of Colvin’s proposed class, and affirming the trial
court’s class certification here would lead to the “peculiar” outcome of Gilbert being unable to recover in her
case individually, but being able to recover as part of Colvin’s class. However, Gilbert’s case did not involve
an FDCPA claim like the one before us, thus it is not the same. Notably, there was also disagreement at oral
argument about whether Gilbert was actually a member of Colvin’s proposed class.

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