Court of Appeals of Ohio, Third District, Hancock
from Hancock County Common Pleas Court Trial Court No.
Reversed and Cause Remanded
I. Frederick and Gregory S. Reichenbach for Appellant
Toby Schisler for Appellees, Midland Funding LLC, Midland
Credit Management, Inc., and Encore Capital Group, Inc.
Cassandra Colvin ("Colvin"), appeals the June 12,
2018 judgment of the Hancock County Court of Common Pleas
denying her motion for class certification. For the reasons
that follow, we reverse.
On April 22, 2013, plaintiff/counterclaim-defendant-appellee,
Midland Funding LLC ("Midland"), filed a complaint
against Colvin in the Hardin County Municipal Court. (Doc.
No. 8). Midland alleged that Colvin had defaulted on a Chase
Bank credit-card account, that it had purchased Colvin's
delinquent account from Chase Bank, and that, despite
Midland's informal efforts to collect the amount owing,
Colvin failed to pay the balance due. (Id.). Midland
requested judgment against Colvin in the amount of $950.60
along with other related relief. (Id.).
On June 5, 2013, Colvin filed a motion to dismiss
Midland's complaint. (Id.). In her motion,
Colvin alleged that she "lives in Hancock County, Ohio,
and has never lived in Hardin County, Ohio."
(Id.). In addition, she 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.
(Id.). On June 14, 2013, Midland filed a memorandum
in opposition to Colvin's motion to dismiss.
On June 27, 2013, the Hardin County Municipal Court issued
its ruling on Colvin's motion to dismiss. (Id.).
The court found 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."
(Id.). However, the court did not dismiss
Midland's action outright. (Id.). Instead, the
court transferred Midland's action to the Findlay
Municipal Court at Midland's cost. (Id.).
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 Management,
Inc. ("Midland Credit") and Encore Capital Group,
Inc. ("Encore"), as third-party
defendants. (Id.). In her counterclaim and
third-party complaint, Colvin alleged that the Midland
parties violated the federal Fair Debt Collection Practices
Act ("FDCPA") 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 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. (Id.). See 15 U.S.C. 1692i(a).
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. (Id.). 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 U.S.C.
1692k(a)(1)-(2), and costs of the action and reasonable
attorney's fees as provided for by 15 U.S.C. 1692k(a)(3).
The same day that Colvin filed her answer, counterclaim, and
third-party complaint, Colvin filed a motion to transfer the
case to the Hancock County Court of Common Pleas. (Doc. No.
8). On September 5, 2013, the Findlay Municipal Court granted
Colvin's motion to transfer, and the case was
subsequently transferred to the Hancock County Court of
Common Pleas. (Id.).
On November 7, 2013, the Midland parties filed their joint
answer to Colvin's counterclaim and third-party
complaint. (Doc. No. 20). On December 5, 2013, the Midland
parties filed their amended joint answer to Colvin's
counterclaim and third-party complaint. (Doc. No. 23).
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. Id
On November 30, 2015, Colvin moved for leave to file an
amended counterclaim/third-party complaint. (Doc. No. 68). On
December 28, 2015, the Midland parties filed a memorandum in
opposition to Colvin's motion for leave to file an
amended counterclaim/third-party complaint. (Doc. No. 71). On
January 15, 2016, the trial court granted Colvin's
motion. (Doc. No. 73). On February 22, 2016, Colvin filed her
amended counterclaim/third-party complaint. (Doc. No. 78). On
March 4, 2016, the Midland parties filed their answer to
Colvin's amended counterclaim/third-party complaint.
(Doc. No. 79).
On June 1, 2017, Colvin filed a motion for class
certification. (Doc. No. 106). Colvin sought to certify one
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.
(Id.). On June 22, 2017, the Midland parties filed
their memorandum in opposition to Colvin's motion for
class certification. (Doc. No. 107). On July 14, 2017, Colvin
filed a reply in support of her motion for class
certification. (Doc. No. 108). On July 20, 2017, the Midland
parties filed a reply memorandum in support of their motion
to strike Colvin's class claims. (Doc. No. 109).
On June 12, 2018, the trial court denied Colvin's motion
for class certification. (Doc. No. 115). The trial court
first concluded that the proposed class definition is
unambiguous, that the proposed class is sufficiently
numerous, and that Colvin is a member of the proposed class.
(Id.). However, the trial court held that class
certification is inappropriate because there are not
questions of law or fact common to the class, Colvin's
claims and defenses are not typical of the claims and
defenses of the proposed class, and Colvin cannot fairly and
adequately protect the interests of the proposed class.
(Id.). See Civ.R. 23(A)(2)-(4). Because the
trial court concluded that Colvin and the proposed class fail
to satisfy Civ.R. 23(A)'s commonality, typicality, and
adequacy-of-representation requirements, it did not conduct
an analysis to determine whether the proposed class satisfies
the requirements of Civ.R. 23(B)(3). (Id.).
On July 11, 2018, Colvin filed a notice of appeal. (Doc. No.
116). She raises two assignments of error for our review.
of Error No. I
Trial Court abused its discretion in denying Ms. Colvin's
motion for class certification based on the incorrect premise
that her claims were not common or typical of the purported
class and that she was not an adequate representative,
because she has differing damages.
In her first assignment of error, Colvin argues that the
trial court abused its discretion by denying her motion for
class certification. Colvin contends that the entire basis of
the trial court's conclusion that Civ.R. 23(A)'s
commonality, typicality, and adequacy-of-representation
requirements are not satisfied was the trial court's
belief that, because she is seeking only statutory damages
under the FDCPA, she cannot represent class members with
claims for both actual damages and statutory damages.
(Appellant's Brief at 6). She argues that the trial court
was mistaken and that "Civ.R. 23 permits class
certification despite differing damages among class members
and, in the FDCPA setting, permits a class member claiming
only statutory damages to represent members claiming both
statutory and actual damages." (Id.). Thus,
Colvin maintains that the trial court should have found the
commonality, typicality, and adequacy-of-representation
requirements satisfied with respect to the entire proposed
"Civ.R. 23 sets forth the requirements for maintaining a
class action." Stammco, L.L.C. v. United Tel. Co. of
Ohio, 125 Ohio St.3d 91, 2010-Ohio-1042, ¶ 6
("Stammco I "). The Supreme Court of Ohio
has identified seven requirements that a litigant must
satisfy in order to maintain 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
Id., quoting Hamilton v. Ohio Sav. Bank, 82
Ohio St.3d 67, 71 (1998), citing Civ.R. 23(A) and (B) and
Warner v. Waste Mgt, Inc., 36 Ohio St.3d 91 (1988).
The party moving for class certification must prove each of
these seven requirements by a preponderance of the evidence.
Gordon v. Erie Islands Resort & Marina, 6th
Dist. Ottawa No. OT-15-035, 2016-Ohio-7107, ¶ 26, citing
Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio
St.3d 373, 2013-Ohio-4733, ¶ 15; MidFirst Bank v.
Biller, 3d Dist. Seneca No. 13-10-13, 2010-Ohio-6067,
¶ 18, citing Robinson v. Johnston Coca-Cola Bottling
Group, Inc., 153 Ohio App.3d 764, 2003-Ohio-4417, ¶
2 (1st Dist.) and State ex rel. Ogan v. Teater, 54
Ohio St.2d 235, 247 (1978). "'The failure to meet
any one of these prerequisites will defeat a request for
class certification * * *.'" Stammco, LLC v.
United Tel. Co. of Ohio, 136 Ohio St.3d 231,
2013-Ohio-3019, ¶ 24 ("Stammco II
"), quoting Schmidt v. Avco Corp., 15
Ohio St.3d 310, 313 (1984).
"'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.'" Id. at ¶ 25,
quoting Marks v. C.P. Chem. Co., Inc., 31
Ohio St.3d 200, 201 (1987). "[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 at 70. "'Abuse of discretion has
been defined as more than an error of law or judgment; it
implies an attitude on the part of the trial court that is
unreasonable, arbitrary, or unconscionable.'"
Stammco II at ¶ 25, quoting Marks at
201, citing Ojalvo v. Bd of Trustees of Ohio State
Univ., 12 Ohio St.3d 230, 232 (1984). "'A
finding of abuse of discretion, particularly if the trial
court has refused to certify, should be made
cautiously.'" Id., quoting Marks
However, 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.
In this action, Colvin maintains that the Midland
parties' litigation activities against putative class
members violated the FDCPA. "Congress enacted the FDCPA
* * * to eliminate abusive debt collection practices, to
ensure that debt collectors who abstain from such practices
are not competitively disadvantaged, and to promote
consistent state action to protect consumers."
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich
LPA, 559 U.S. 573, 577, 130 S.Ct. 1605 (2010), citing 15
U.S.C. 1692(e). "Forum abuse," "an unfair
practice in which debt collectors seek to obtain default
judgments by filing suit in courts so distant or inconvenient
that consumers cannot make an appearance," was one such
debt collection practice that concerned Congress. Taylor
v. First Resolution Invest. Corp., 148 Ohio ...