dissenting.
{¶ 39} Because I agree with the trial court’s dismissal of this case for lack of jurisdiction, I respectfully dissent.
{¶ 40} Rebekah R. Radatz instituted a class-action lawsuit because Fannie Mae allegedly failed to record the satisfaction of mortgages in various Ohio county recorders’ offices within 90 days after payoff. Under R.C. 5301.36(C):
If the mortgagee fails to comply with division (B) of this section, the mortgagor of the unrecorded satisfaction and the current owner of the real property to which the mortgage pertains may recover, in a civil action, damages of two hundred fifty dollars. This division does not preclude or affect any other legal remedies or damages that may be available to the mortgagor.
*487(Emphasis added.)
{¶ 41} The trial court dismissed the case for lack of jurisdiction pursuant to 12 U.S.C. 4635(b), which states that “no court shall have jurisdiction to affect, by injunction or otherwise, the issuance or enforcement of any notice or order under section 4631 [cease-and-desist orders] * * * or to review, modify, suspend, terminate, or set aside any such notice or order.” The remedy the class action seeks is expressly covered by the Federal Housing Finance Agency’s (“FHFA”) consent order dated March 9, 2013:
Pursuant to 12 U.S.C. § 4631, [Fannie Mae] and [Freddie Mac] (together “the Enterprises”) are hereby
1. ORDERED to CEASE and DESIST from violating 12 U.S.C. § 4617(j)(4) by paying, for any reason, directly or indirectly, any fines or penalties imposed by any state mortgage satisfaction law on the Enterprises for noncompliance.
Furthermore, Fannie Mae is
2. ORDERED to CEASE AND DESIST from violating 12 U.S.C. § 4617(j)(4) by paying, for any reason, directly or indirectly, any amount pursuant to Ohio Code 5301.36 or pursuant to any judgment in connection with the pending lawsuit styled Radatz v. Fed. Nat’l Mortgage Ass’n, Case No. CV-03-507616 (Ohio Com.Pleas).
{¶ 42} The Eighth District Court of Appeals held that R.C. 5301.36(C) awards are compensatory damages. I disagree with this conclusion for reasons expressed in my dissent in Rosette v. Countrywide Home Loans, Inc., 105 Ohio St.3d 296, 2005-Ohio-1736, 825 N.E.2d 599. The statutory payment sought by the class members is not “compensation” but is in the nature of a fine or penalty “imposed by any state mortgage satisfaction law * * * for noncompliance.”
{¶ 43} The majority refuses to hold that the trial court lacked jurisdiction even though it determines that the class cannot recover under R.C. 5301.36 because the award is a penalty under federal law. It is difficult to say what is left for the trial court to do upon remand, when it cannot order payment of $250 to each class member. As R.C. 5301.36(C) notes, a mortgagor may have other remedies available (presumably for compensatory damages), but adjudication of the class members’ claims would modify the FHFA cease-and-desist order if the class members prevailed.
Dworken & Bernstein Co., L.P.A., Patrick J. Perotti, and James S. Timmerberg; and Brian Ruschel, for appellee. Squire Patton Boggs, L.L.P., and Richard S. Gurbst; Porter Wright Morris & Arthur, L.L.P., J. Philip Calabrese, and Kathleen M. Trafford; and O’Melveny & Myers, L.L.P., and Jeffrey Kilduff, for appellant. Bricker & Eckler, L.L.P., Anne Marie Sferra, and Sommer Sheely; and Stephen E. Hart, Deputy General Counsel, Federal Housing Finance Agency, urging reversal for amicus curiae Federal Housing Finance Agency. Jeffrey M. McGaffick, urging affirmance for amicus curiae First Priority Title Agency.{¶44} I therefore would reverse the judgment of the court of appeals and reinstate the trial court’s order dismissing this action.
O’Connor, C.J., concurs in the foregoing opinion.