[Cite as Gati v. Americredit Fin., 2012-Ohio-361.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96919




                               ANTHONY GATI, ET AL.
                                                           PLAINTIFFS-APPELLANTS

                                                     vs.

                  AMERICREDIT FINANCIAL, ETC.
                                                           DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-745353


        BEFORE: Jones, J., Sweeney, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: February 2, 2012
ATTORNEY FOR APPELLANTS

James R. Douglass
James R. Douglass Co., L.P.A.
20521 Chagrin Boulevard
Suite D
Shaker Heights, Ohio 44122


ATTORNEYS FOR APPELLEE

James S. Wertheim
Melany K. Fontanazza
McGlinchey Stafford, P.L.L.C.
25550 Chagrin Boulevard
Suite 406
Cleveland, Ohio 44122




LARRY A. JONES, J.:

      {¶ 1} Plaintiffs-appellants, Anthony Gati and Suzie Galemmo, appeal the trial

court’s judgments (1) denying their motion for a temporary restraining order and (2)

dismissing their claim under the Ohio Consumer Sales Practices Act. We affirm.

                            I. Procedural History and Facts

      {¶ 2} Prior to this litigation, in March 2009, Americredit filed a replevin action

against Gati and Galemmo, seeking possession of Gati’s vehicle.        In October 2009,

Galemmo answered and counterclaimed, asserting a claim for relief based on alleged

violations of the Ohio Consumer Sales Practices Act. Gati also filed a motion to dismiss.
In August 2010, the trial court found that Americredit did not have standing, granted Gati’s

motion to dismiss, and dismissed the case.

       {¶ 3} Americredit repossessed the vehicle in early December 2010.         On December

14, 2010, plaintiffs filed an emergency motion to show cause and for return of the vehicle.

The court denied the motion, stating that the case had been dismissed and it, therefore,

lacked jurisdiction.

       {¶ 4} Gati and Galemmo then initiated this action in January 2011.       Count 1 of the

complaint sought return of the vehicle. Count 2 alleged violations of the Ohio Consumer

Sales Practices Act.   Plaintiffs also filed a motion for a temporary restraining order and

injunctive relief. Shortly after the case was filed, the court ordered that the vehicle not be

sold pending resolution of the case.

       {¶ 5} The record demonstrates that in November 2006, Americredit and Huntington

National Bank entered into an auto loan purchase and sale agreement (“master agreement”).

 The master agreement provided that Huntington would fund auto loans and sell or assign

them to Americredit in bulk.        Upon sale, the loan “shall be owned and controlled

exclusively by Americredit.” Huntington was to be named the initial lienholder on the

certificates of title, but upon its receipt from Americredit of the purchase price for the loan,

the “Loan, and all rights, benefits, payments, proceeds, and obligations arising from or in

connection with the Loan, together with any lien or security interest in the Vehicle serving

as collateral with the loan, shall vest with Americredit.”   As part of the master agreement,

Huntington executed a master power of attorney, giving Americredit the right to, among
other things, repossess vehicles that were part of the master agreement.

       {¶ 6} Gati and Galemmo purchased the vehicle in May 2007.              They obtained

financing from Huntington, thus Huntington was the initial lienholder. In June 2007,

Huntington assigned the loan to Americredit under the master agreement.

       {¶ 7} In February 2011, the trial court denied the plaintiffs’ motion for a

temporary restraining order and injunctive relief. The court found that the plaintiffs

failed to demonstrate by clear and convincing evidence a substantial likelihood of success

on the merits.    Specifically, the court found that the plaintiffs failed to make the

necessary payments on the loan and under the agreements Huntington Bank, the

predecessor lienholder, had with Americredit, Huntington’s assignee, Americredit was

entitled to possession of the vehicle and lawfully repossessed it. Thus, the trial court’s

ruling on plaintiffs’ motion for a temporary restraining order and injunctive relief resolved

Count 1 of their complaint.

       {¶ 8} Americredit filed a motion to dismiss Count 2 of the complaint; the trial

court granted the motion, finding that the allegations of violations of the Consumer Sales

Practices Act were outside the statute of limitations.

       {¶ 9} Gati and Galemmo now present the following assignment of error for our

review: “The court erred when it held that private parties may override the Motor Vehicle

Title Act by contract and thereby vest a party who does not perfect a security interest in a

motor vehicle as required by RC §4505.13 with the rights of a secured party.”

                                   II. Law and Analysis
       A.    Temporary Restraining Order, Injunctive Relief, and Americredit’s
       Repossession of the Vehicle

       {¶ 10} We review a trial court’s decision to grant or deny injunctive relief for an

abuse of discretion. Meade v. Beverly Enterprises-Ohio, Inc., 154 Ohio App.3d 521,

2003-Ohio-5231, 797 N.E.2d 1040, ¶ 11 (11th Dist.). An “abuse of discretion” connotes

more than a mere error of law or judgment; it implies that the court’s attitude was

arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶ 11} The trial court may consider the following factors when determining whether

injunctive relief is appropriate:

               (1) [T]he likelihood of the plaintiff’s success on the merits, (2)
       whether there exists an adequate remedy at law, (3) whether the injunction
       would prevent irreparable harm, (4) a balancing of the potential injury to the
       defendant and the general public, and (5) whether the injunctive relief sought
       is for the purpose of maintaining the status quo pending a trial on the merits.
         Rein Constr. Co. v. Trumbull Cty. Bd. of Commrs., 138 Ohio App.3d 622,
       630-631, 741 N.E.2d 979 (11th Dist.2000).

       {¶ 12} In an action for a temporary or permanent injunction, the plaintiff must

prove his or her case by clear and convincing evidence. Franklin Cty. Bd. of Health v.

Paxson, 152 Ohio App.3d 193, 2003-Ohio-1331, 787 N.E.2d 59, ¶ 25 (10th Dist.).

       {¶ 13} In their assignment of error, Gati and Galemmo contend that security

interests in motor vehicles are governed by R.C. 4505.13, and the interest must be

reflected on the motor vehicle’s title.   Here, the title to the motor vehicle lists Huntington

as the lienholder. Thus, according to the plaintiffs, if Huntington did transfer the loan to

Americredit, it failed to perfect the security interest, and, therefore, did not have an
enforceable security interest in the vehicle.   We disagree.

       {¶ 14} R.C. 4505.13(B), governing security interests in motor vehicles, provides in

pertinent part as follows:

       any security agreement covering a security interest in a motor vehicle, if a
       notation of the agreement has been made by a clerk of a court of common
       pleas on the face of the certificate of title or the clerk has entered a notation
       of the agreement into the automated title processing system and a physical
       certificate of title for the motor vehicle has not been issued, is valid as
       against the creditors of the debtor, whether armed with process or not, and
       against subsequent purchasers, secured parties, and other lienholders or
       claimants.

       {¶ 15} A security interest in a motor vehicle can therefore be perfected in one of

two ways: (1) by notation of the lien on the vehicle’s certificate of title or (2) by the clerk’s

notation in the automated title processing system if no physical certificate of title has yet

been entered. In re Fields, 351 B.R. 887, 890 (S.D.Ohio 2006), citing R.C. 4505.13(B).

       {¶ 16} As stated in In re Fields:

       When perfection of a security interest is accomplished by compliance with
       the Motor Vehicle Title law, the Motor Vehicle Title Law also governs
       issues regarding duration and renewal of that perfected security interest.
       For those matters not involving duration and renewal, Chapter 1309 still
       applies. The assignment of a perfected security interest involves neither
       duration nor renewal, and so the effect of such assignment is determined by
       Chapter 1309. Id. at 891. Thus, “[w]hile it is true that the recordation or
       perfection of a secured creditor[’]s security interest in a motor vehicle is
       controlled by R.C. 4505.13, the creation of the security interest is controlled
       by R.C. 1309.14.” Apple Creek Banking Co. v. Junior M. Smith, Inc., 9th
       Dist. No. 2094, 1985 WL 4647, *2 (Dec. 18, 1985).

       {¶ 17} R.C. 1309.311(B) provides that: “a security interest in property subject to

[R.C. 4505.13(B)] may be perfected only by compliance with those requirements, and a

security interest so perfected remains perfected notwithstanding a change in the use or
transfer of possession of the collateral.”   In In re Fields, the bankruptcy court rejected the

argument that a lienholder’s interest was unperfected because it was not listed on the

certificate of title. Id. at 893-894.    Similarly, here, Americredit was not required to

reperfect the security interest that was assigned to it by Huntington. The interest was

properly assigned, therefore, Americredit was within its rights to repossess the vehicle.

The trial court properly denied plaintiffs’ request for injunctive relief and disposed of

Count 1 of their complaint.

       B. Consumer Sales Practices Act Claim

       {¶ 18} The trial court dismissed the plaintiffs’ claim under the Consumer Sales

Practices Act as being barred by the statute of limitations.         Civ.R. 12(B) governs a

defendant’s motion to dismiss for, among other things, “(6) failure to state a claim upon

which relief can be granted.”    The standard of review regarding a dismissal for failure to

state a claim was set forth by this court as follows in DeMell v. Cleveland Clinic Found.,

8th Dist. No. 88505, 2007-Ohio-2924, ¶ 6-7:

               Appellate review of a judgment granting a Civ.R. 12(B)(6) motion to
       dismiss is de novo. When reviewing such a judgment, an appellate court
       must accept the material allegations of the complaint as true and make all
       reasonable inferences in favor of the plaintiff.
               For a defendant to prevail on a Civ.R. 12(B)(6) motion, it must appear
       beyond doubt from the complaint that the plaintiff can prove no set of facts
       entitling relief. A court is confined to the averments set forth in the
       complaint and cannot consider outside evidentiary materials. Moreover, a
       court must presume that all factual allegations set forth in the complaint are
       true and must make all reasonable inferences in favor of the nonmoving
       party. (Citations omitted.)

       {¶ 19} The transaction that was the basis for the plaintiffs’ Consumer Sales
Practices Act claim occurred on June 15, 2007, when Huntington assigned the loan to

Americredit under the master agreement.      Under the Act, as set forth in R.C. 1345.10(C),

an action must be brought forth within two years of the occurrence of the alleged violation.

 The first action, brought by Americredit, was filed in March 2009.       Gati and Galemmo

did not file their counterclaim in that action, however, until October 17, 2009.   The claim,

therefore, was commenced outside of the two-year statute of limitations.

       {¶ 20} Because such an action would have been brought outside the statute of

limitations, it cannot form the basis for applying the savings statute to the present action.

The Ohio Supreme Court has made it explicitly clear that “[t]he Ohio saving clause cannot

save an action from the running of the statute of limitation unless the original action was

commenced or attempted to be commenced within the applicable period of limitation.”

Howard v. Allen, 30 Ohio St.2d 130, 133-34, 283 N.E.2d 167 (1972).

       {¶ 21} In light of the above, the trial court properly dismissed plaintiffs’ Consumer

Sales Practices Act claim.

       Judgment affirmed.

       It is ordered that appellee recover of appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.
LARRY A. JONES, JUDGE

JAMES J. SWEENEY, P.J., and
MARY EILEEN KILBANE, J., CONCUR
