[Cite as Rimmer v. Citifinancial, Inc., 2014-Ohio-5287.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                          No. 101254



                                        KAREN RIMMER, ETC.

                                                            PLAINTIFF-APPELLANT

                                                      vs.

                                         CITIFINANCIAL, INC.

                                                            DEFENDANT-APPELLEE




                                          JUDGMENT:
                                    REVERSED AND REMANDED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CV-05-564493


        BEFORE: E.A. Gallagher, J., Boyle, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: November 26, 2014
ATTORNEYS FOR APPELLANT

Brian Ruschel
925 Euclid Avenue
Suite 660
Cleveland, Ohio 44115

Patrick J. Perotti
Dworken & Bernstein Co., L.P.A.
60 South Park Place
Painesville, Ohio 44077


ATTORNEYS FOR APPELLEE

James L. Defeo
Kip T. Bollin
Thompson Hine L.L.P.
3900 Key Center
127 Public Square
Cleveland, Ohio 44114
EILEEN A. GALLAGHER, J.:

       {¶1}    This is the third appeal by Karen Rimmer in her attempt to certify a class for her

claim against Citifinancial, Inc. (“Citi”) regarding its failure to timely record the satisfaction of a

mortgage as statutorily required.    Rimmer argues the trial court erred in changing the wording

of the class definition as ordered by this court in its judgment and mandate issued in Rimmer v.

Citifinancial, Inc., 8th Dist. Cuyahoga No. 99760, 2013-Ohio-5732.             Finding merit in the

instant appeal, we reverse the decision of the trial court and remand the matter for proceedings

consistent with this opinion.

       {¶2} The facts as reported in Rimmer at ¶ 4 - 9 are as follows:

       Thirteen years ago, in 2000, Rimmer executed a note and security agreement with

       Bank of Yorba Linda for $5,000. Her loan was subsequently assigned to

       Associates Financial Services, Inc. which was merged with Citi         several months

       later, and Citi became the holder of Rimmer’s mortgage. On April 10, 2001,

       Rimmer paid off her loan in full. On August 16, 2001, the satisfaction of the

       subject mortgage was recorded with the Cuyahoga County Recorder.

       Four years later, on June 6, 2005, Rimmer filed a class action complaint against

       Citi,   alleging Citi    failed to file an entry of satisfaction of mortgage with the

       county recorder within 90 days of full payment of the mortgage, in violation of

       R.C. 5301.36. Rimmer sought automatic damages ($250), interest, and costs as

       allowed under R.C. 5301.36(C).

       On January 25, 2006, Rimmer filed a motion for class certification seeking to
       represent a class of all persons who, from March 8, 1999, paid residential
          mortgages in full but for whom Citi did not file an entry of satisfaction of
          mortgage with the county recorder within 90 days of loan payoff.


          Rimmer moved for partial summary judgment as to her individual claim against
          Citi. Citi also moved for summary judgment, alleging that it mailed within the
          statutory time the entry of satisfaction, but the recorder failed to timely process the
          entry.

          The trial court granted summary judgment in favor of Rimmer on her individual
          claim. The court, however, denied her motion for class certification, without
          providing an analysis.

          Rimmer appealed the trial court’s denial of class certification. On appeal, we

          affirmed the summary judgment in favor of Rimmer on her individual claim,

          rejecting Citi’s   claim that it timely processed Rimmer’s release and was entitled

          to a presumption of timely delivery. Rimmer v. Citifinancial, 8th Dist. Cuyahoga

          No. 89407, 2008-Ohio-1814.

          {¶3} Applying the requirements for class certification, this court reversed the trial court’s

decision denying class certification. Id.        This court determined that Rimmer met all seven

requirements under Civ.R. 23. “She defined an identifiable and manageable class; a question of

law common to all members of the class predominates over any individual legal issues that may

arise; and a single adjudication as a class action is the most efficient and fair manner by which to

resolve the matter.” Rimmer at ¶ 11.

          {¶4} Citi appealed to the Supreme Court of Ohio and the court remanded the case to the

Eighth District for further consideration in light of its decision in Alexander v. Wells Fargo Fin.

Ohio 1, Inc., 122 Ohio St.3d 341, 2009-Ohio-2962 911 N.E.2d 286. In Alexander, the Ohio

Supreme Court held that an arbitration agreement is applicable to statutory mortgage satisfaction

claims.     This court, in turn, remanded to the trial court to apply Alexander. Upon remand, the
trial court issued a decision certifying the class but excluded individuals who had an arbitration

agreement in their loan agreements. The trial court certified the class as follows:

       All persons who from March 8, 1999 entered into a residential mortgage
       agreement (as defined by R.C. 5301.36) with Citifinancial, Inc. without entering
       into an arbitration provision agreement with Citifinancial, Inc. relating to disputes
       arising out of said mortgage agreement, and thereafter satisfied their obligation
       where Citifinancial, Inc. (or any predecessor or other entity acquired or merged
       with, or otherwise now part of Citifinancial, Inc., including any affiliates,
       subsidiaries, and/or related lending institutions) was the mortgagee at the time of
       satisfaction, and, for each such satisfied mortgage, Citifinancial, Inc. did not
       record the fact of the satisfaction in the appropriate county recorder’s office and
       pay fees required for the recording within 90 days from the date of satisfaction.

       {¶5} Rimmer filed her second appeal seeking to define the class for this litigation. On

appeal, this court agreed with Rimmer that the trial court’s definition limited the class to persons

who entered into mortgage agreements only with Citifinancial Inc.

       {¶6} This court determined that the trial court, by inserting the parenthetical clause “(or

any predecessor or other entity * * * )” at the second mention of “Citifinancial Inc.” rather than at

the first mention of “Citifinancial Inc.,” inadvertently excluded those who entered into

agreements with Citi’s predecessors or other entities that were acquired by or merged with Citi.

Rimmer at ¶ 41. This court ordered the trial court on remand, to revise the definition to properly

reflect the inclusion of those individuals.

       {¶7} On remand, the trial court again failed to insert the parenthetical clause “(or any

predecessor or other entity * * * )” after both mentions of Citifinancial as instructed by this court

in Rimmer at ¶ 41. Rimmer now appeals asserting the following sole assignment of error:

       The trial court erred in changing the wording of the class definition ordered by
       this court in its Judgment/Mandate of December 26, 2013, by omitting certain
       mortgagors of predecessors or other entities acquired, merged with, or otherwise
       now part of Citifinancial, Inc., including affiliates, subsidiaries, and/or related
       lending institutions.
        {¶8} In her sole assigned error, Rimmer argues that the trial court must follow the

mandate of the reviewing court. We agree.

        {¶9} In Hawley v. Ritley, 35 Ohio St.3d 157, 519 N.E.2d 390 (1988), the Ohio Supreme

Court stated,

        [t]hus where at a rehearing following remand a trial court is confronted with
        substantially the same facts and issues as were involved in the prior appeal, the
        court is bound to adhere to the appellate court’s determination of the applicable
        law. Moreover, the trial court is without authority to extend or vary the mandate
        given.

        {¶10} This court in its prior decision mandated that the trial court insert the parenthetical

clause “(or any predecessor or other entity * * * )” at the first and second mention of

“Citifinancial Inc.” However, on remand, the trial court’s definition of the class only included

the parenthetical at the first mention of Citifinancial.   The effect of this omission is to exclude

all of those who entered into agreements with Citi’s predecessors or other entities that were

acquired by or merged with Citi.    This result is inconsistent with the mandate of Rimmer and as

such, must be corrected. Thus, we remand the matter for correction of the class definition to

read:

        All persons who from March 8, 1999 entered into a residential mortgage

        agreement (as defined by R.C. 5301.36) with Citifinancial, Inc. (or any

        predecessor or other entity acquired or merged with, or otherwise now part of

        Citifinancial, Inc., including any affiliates, subsidiaries, and/or related lending

        institutions)   without entering into an arbitration provision agreement with

        Citifinancial, Inc. relating to disputes arising out of said mortgage agreement, and

        thereafter satisfied their obligation where Citifinancial, Inc. (or any predecessor

        or other entity acquired or merged with, or otherwise now part of Citifinancial,
       Inc., including any affiliates, subsidiaries, and/or related lending institutions) was

       the mortgagee at the time of satisfaction, and, for each such satisfied mortgage,

       Citifinancial, Inc. did not record the fact of the satisfaction in the appropriate

       county recorder’s office and pay fees required for the recording within 90 days

       from the date of satisfaction.

       {¶11} The judgment of the trial court is reversed and the matter is remanded for

proceedings consistent with this opinion.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.




       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and
PATRICIA A. BLACKMON, J., CONCUR
