IN THE SUPREME COURT OF OHIO

MARGARET C. NAGEL,INDIVIDUALLY AND ON BEHALF OFALL OTHERS SIMILARLY SITUATED,

Plaintiff-Appellee,

vs.

THE HUNTINGTON NATIONAL BANK

Defendant-Appellant.

Case No. 2008a2501

On Appeal from theCuyahoga County Court of Appeals,Eighth Appellate District

Court of AppealsCase No. CA-90662

PLAINTIFF-APPELLEE'S BRIEF OPPOSING

MEMORANDUM IN SUPPORT OF JURISDICTION

Patrick J. Perotti, Esq. (#0005481)(COUNSEL OF RECORD)DWORKEN & BERNTSTEIN Co., L.P.A.60 South Park PlacePainesville, Ohio 44077(440) 352-3391 (440) 352-3469 FaxEmail: poerotti@dworkenlaw.com

Brian G. Ruschel, Esq. (#0046631)925 Euclid Avenue, Suite 660Cleveland, OH 44115(216) 621-3370 (216) 621-3371 FaxEmail: bruschel@aol.com

Jennifer T. Mills, Esq. (0022967)(COUNSEL OF RECORD)L. Bradfield Hughes, Esq. (#0070997)PORTER, WRIGHT, MORRIS &ARTHUR LLP41 South High Street, Suite 3100Columbus, OH 43215(614) 227-2000 (614) 227-2100 FaxEmail: imidlsCc^r^norterwright.com

bhughes@,porterwright..com

Counsel for Defendant-Appellant

Counsel for Plaintiff-Appellee

R LDJAN 3 0 2009

ULERK OF UOUwrS^OURTOF ONIO

TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Brief Opposing Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I

This case does not present issues of public or great general interest .......... I

Statement of Facts and of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Huntington's Proposition of Law 1 does not present an issue ofpublic or great general interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Huntington's Proposition of Law 2 does not present an issue ofpublic or great general interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Proof of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TABLE OF AUTHORITIES

Ass'n. for Hosps. & Health Sys. v. Dep't. ofHuman Servs., 10`" Dist.Nos.04AP-762 & 04AP-763, 2006-Ohio-67 ..............................

Cobbett v. Human Dev. & Counseling Assocs. (Dec. 23, 1985), 5`" Dist.

Pa e s

14

No. CA-6711 ....................................................... 14

Cope v. Metropolitan Life Insurance Co. (1988), 82 Ohio St.3d 426,696 N.E.2d 1001 .... ................................................ 3,6

Dubin v. Sec. Union Title Ins. Co., 162 Ohio App.3d 97, 2005-Ohio-3482 ......... 6

Eisen v. Carlisle & Jacquelin (1974), 417 U.S. 156,177 . . . . . . . . . . . . . . . . . . . . . . . 6

Estate ofReedv. Hadley, 163 Ohio App.3d 464, 2005-Ohio-5016 . . . . . . . . . . . . . . . 13

Faralli v. Hair Today, Gone Tomorrow, et al, 2007 U.S. Dist. LEXIS 1977(Northern Dist. of Ohio, Eastern Div.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

George v.. Ohio Dep't. of Human Servs. (2001), 145 Ohio App.3d 681 ........... 14

Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 2006-Ohio-6553 ... 6

Greenwood v. Taft (1996), 75 Ohio St.3d 1204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hamilton v. Ohio Sav. Bank (1998), 82 Ohio St.3d 67 . . . . . . . . . . . . . . . . . . . . . . . . . 12

In re Chiang, (3d Cir., 2004), 385 F.2d 256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Morris v. Wachovia Sec., Inc., (E.D. Va. 2004), 223 F.R.D. 284 . . . . . . . . . . . . . . . . . 8

Noble v. Colwell (1989), 44 Ohio St.3d 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Ojalvo v. Board of Trustees (1984),12 Ohio St.3d 230 . . . . . . . . . . . . . . . . . . . . . . . . . passim

Pinchot v. Charter One Bank, F.S.B., 99 Ohio St.3d 390, 2003-Ohio-4122 ......... 10

Pyles v. Johnson, 143 Ohio App.3d 720, 200 1 -Ohio-2478 . . . . . . . . . . . . . . . . . . . . . . 13

Rimedio v. Summacare, 172 Ohio App.3d 639, 2007-Ohio-3244 . . . . .. . . . . . . . . . . . 12

Rosette v. Countrywide Home Loans, Inc., 105 Ohio St.3d 296, 2005-Ohio-1736 .... 10

m

State, ex rel. Shemo v. City of Mayfield Heights, 96 Ohio St.3d 379,2002 Ohio 4931 ..................................................... 8

State v. Pierce (1992), 64 Ohio St.3d 490 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

State v. Tipka (1984), 12 Ohio St.3d 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Talwar v. Kattan, 3d Dist. No. 1-98-83, 1999-Ohio-803 . . . . . . . . . . . . . . . . . . . . . . . 8

Ungerbuhler v. Butler Electric Co-Op, Inc., 1985 WL 9305 (Ohio App. 1StDist..Jan.3,1985) ................................................... 4

Wood v. Ward, (1853), 10 Ohio Dec. Reprint 505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Statutes:

R.C. 1109.69 ........................................................... passimR.C.2305.07 ........................................................... 9R.C. 5301.36 ........................................................... passim

App.R.3 ..................... . ......................................... 6

Ohio S. Ct. Prac. RULE XII(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

References

Alba Conte & Herbert Newberg, Newberg on Class Actions (4a` Ed., 2002), 22:28 ..... 8

III

This case does not present issues of public or great general interest.

Huntington first asks this court to decide the applicability of R.C. 1109.69 (Proposition of

:,aw 1). The lower courts however did not do so because the facts were in serious dispute. To

raise a challenge that it was being required to prove a claim with records that Ohio law allowed it

to discard, the statute would require Huntington to show that the underlying lawsuit would be

detemiined by records relating to `consumer credit loans and discounts.' The testimony by

Huntington's witnesses explained that the data which would be used were general mortgage

release spreadsheets kept for mortgages of all types. Huntington did not ever have, in the first

instance, the `records' it now asks this court to allow it to discard. Because of this dispute about

the applicability, vel non, of this provision, the lower courts did not credit either version.

Since it has not yet been determined whether Huntington would be factually able to

present the Proposition of Law it suggests, and the lower courts did not decide the merits of the

proposition, discretionary review does not lie.

Huntington next asks this court to announce a proposition of law that a lower court may

consider the contours of the claim-but not its merits-in deciding class certification. That is

already the law. Ojalvo v. Bd. of Trustees of Ohio State Univ. (1984), 12 Ohio St.3d 230.

Here, the trial court decided it would rule upon the merits of Plaintiff's claim, which the

law does not allow. When the trial court reached its conclusion, while at the same time noting

the many factual disputes in the record, the court of appeals predictably reversed. That is not a

novel, unique or unsettled approach, and discretionary review by this court is not warranted.

1

Statement of Facts and of the Case.

The underlying issue in this case is Whether mortgage releases were tiniely recorded.

The facts in this case were hotly disputed in the record below. Plaintiff presented evidence that

the releases were not timely. The official date stamp from the County Recorder showed the

releases were recorded more than 90 days after pay off. The bank questioned that date, arguing

that other dates were relevant. The bank then argued-citing R.C. 1109.69-that it did not

maintain records dealing with `personal lines of credit' which allegedly would show the relevant

dates. Plaintiff introduced evidence that this factual argument was untrue. The representatives

of the bank testified that the bank keeps general computer records on all mortgages, including the

ones in this class. The bank responded by arguing that those computer records would `not be

enough' to show the dates relevant to these claims, and there would have to be a`search through

boxes and boxes of papers and files relating to these consumer lines of credit loans.' That would

be improper, according to the bank, under R.C. 1109.69 which the bank claims allows discarding

of those records after one year. But Plaintiff subpoenaed computer files which showed that the

bank's argument was untrue-the general mortgage records which are kept indefinitely

contained all the needed information, without looking at any of the papers which the bank called

`personal line of credit' records.

The bank next argued that it had prepared and mailed the releases in time, but the county

was dilatory in recording them. The Plaintiff countered by deposing the bank's witnesses. They

admitted under oath there was no such evidence. They admitted that their computer records-

kept for all types of mortgages--showed the date of payoff and did not show any date of

satisfaction within the 90 days required by the statute. The bank then asserted, however, that

other releases of other offices could be compared to suggest that the releases at issue here were

2

timely. Plaintiff countered that the bank's own testimony admitted that to be false: regardless of.

what may be done with other transactions, the subjeot releases in this suit were not recorded

timely, or even sent timely. See Admission by Defendant Huntington to Request for Admission

No. 3. Indeed, after taking depositions of the Vice President of Consumer Loan Servicing and

the Senior Vice President of the Loan Operations including loan servicing, Huntington admitted

that the mailing date is irrelevant: the release occurs on the recording date:

Q. Does the mortgage get released the day you send themortgage release to the county recorder in an envelope?

A. I'm sony. Can you repeat that?Q. In other words, let's say you don't even deal with the bank;

you do it yourself. You say, "Here's my mortgage release.I've been all paid off," and the bank gives it to you, andsays, "Okay. Here's your release," and they sign it, andyou're holding it in your hand. You then stick that releasedocument, and you put it in an envelope, you put thestamps on it, and you send it to the Cuyahoga CountyRecorder's Office, let's say, January 15t. Is your mortgagereleased on January 13f?

A. No.Q. It's not released until the recorder gets it and puts that

stamp on; is that right?A. Correct.

Depo. of Irving Adler, p. 16.

The underlying dispute on the merits in this lawsuit, therefore, became how to deternrine

the timeliness of a release under R.C. 5301.36. The Plaintiff moved for class certification, since

that issue was common to all class members.

The trial court refused, at this stage, to credit the bank's testimony about what records

would be available to address the fact issues raised by the bank, which would be decided later

when the court addressed the merits.

As a threshold matter, a motion for class certification does notfocus on the substantive aspects of the case. Cope v. MetropolitanLife Insurance Co. (1988), 82 Ohio St.3d 426, 696 N.E.2d 1001.

3

Ohio decisions hold that the complaint allegations must beaccepted as true and class certification must be decided on thatbasis. See e.g. Cope, supra; Ungerbuhlet v. Butler Electric Co-Op, Inc., 1985 WL 9305 (Ohio App. 1S` Dist., Jan. 3, 1985).Further, the court may not inquire into the merits of the case upona motion for class certification. Faralli v. Hair Today, Gone

Tomorrow, et al., 2007 U.S. Dist. Lexis 1977 (Northem Dist. ofOhio, Eastem Div.). . . .

Trial Court Opinion at 2-3.

Since existing records, other than the bank's claimed "personal credit line records,"

would address the issues, there was no need to decide the bank's R.C. 1109.69 affirmative

defense. To the extent that the defense challenged numerosity, the trial court did not adopt it,

leaving for later the decision of whether the statute would bar claims of the class members on the

merits. Opinion, 16-17.

Huntington's first proposition of law-which tries to now address R.C. 1109.69 on its

merits-is thus not well taken.

The trial court next looked to how a violation of R.C. 5301.36 is shown. However, the

court forgot its own admonition that it is improper to "address the merits when deciding class

certification"-doing just that. The trial court weighed the conflicting testimony discussed

above and sided with Defendant at page 7 of its opinion:

In the case at bar, Nagel satisfied her mortgage with Huntington onDecember 22, 2001. The mortgage satisfaction was recorded bythe Cuyahoga County Recorder's Office on March 29, 2002,ninety seven days later, as is evidenced by the date stamp on thecertificate of satisfaction. See admission 3, supra. Nagel ar esthat because her satisfaction was filed outside of the ninety dayperiod of time mandated by O.R.C. 5301.36, that she is a properclass representative. Contrarilv Huntington argues that Nagel'smortgage satisfaction was `presented' to the County Recorder'sOffice within the ninet ydayperiod mandated by O.R.C. 5301.36,therefore she is not a proper class representative because hercertificate of satisfaction was timely filed. This Court agrees withHuntington. (emphasis added)

4

This was odd since the testimony on the issue was in dispute-evidence showing that the

release was recorded late versus the argument by Huntington that the release was prepared and

timely mailed-even though testimony by Huntington's witnesses was to the contrary. As the

court of appeals noted at pp. 7-8 of its Opinion,

Huntington did not establish that the envelope was properlyaddressed, had sufficient postage, and was properly deposited inthe mail on February 11, 2002 (the same date the check wassigned). [Footnote omitted] Indeed, Ms. McKee, the fmancialrepresentative who handled Nagel's release, testified [McKeedepo. 66 and McKee affidavit at ¶6] that she had no personalknowledge if Nagel's release was actually mailed, sinceHuntington does `not keep track of when we actually mail [thereleases].'

Regardless, having decided that Ms. Nagel would lose on the merits, the trial court

denied certification. The matter was appealed by Nagel, and the court of appeals not surprisingly

reversed. It found at pages 1 and 5 of its Opinion that the trial court should not address the

merits on a conflicting record when the matter is being heard only on a motion for class

certification:

Because we conclude that the trial court incorrectly determined themerits of the underlying case when it ruled that Nagel was not amember of the class she was seeking to represent, we reverse thetrial court's decision and remand this case for further proceedings.(Appeals Opinion at 1)

The merits of the essential issue in the case-at-bar, whether the`date of mailing' is equivalent to the `date of filing,' should not beat issue at tbis juncture in the proceedings. A trial court mayexamine the underling claims, but only for the purpose ofdetermining whether common questions exist and predominate andnot for the purpose of determining the validity of such claims. ...(Id. at 5)

Huntington's first proposition of law says that a trial court may look to the contours of

the claims-but not decide their merits-in addressing class certification. That is already what

5

the court of appeals held. Huntington thus presents no novel, unsettled matter since the law is

settled by this Court and the U.S. Supreme:Court-that deciding class cerdfication does not go to

deciding the merits of the underlying claim. Ojalvo v. Bd. of Trustees of Ohio State Univ.

(1984), 12 Ohio St.3d 230, 233, citing Eisen v. Carlisle & Jacquelin (1974), 417 U.S. 156, 177;

see also Cope v. Metro. Life Ins. Co. (1998); 82 Ohio St.3d 426, 436; Dubin v. Sec. Union Title

Ins. Co., 162 Ohio App.3d 97, 101, 2005-Ohio-3482, ¶21.

Huntington's Proposition of Law 1 does not present an issue ofpublic or great general interest.

First, Huntington seeks to present an issue of the interpretation of R.C. 1109.69.

Discretionary review is not warranted.

At the outset, this issue was not properly before the court of appeals and thus is not

properly before this Court. Huntington did not file a notice of appeal with the Eighth District.

Instead it raised this issue as a cross-assignment of error. Because Huntington is using its R.C.

1109.69 argument offensively, instead of in defense of the trial court's judgment, the assignment

of error was improper to begin with absent a notice of appeal.

Pursuant to App.R. 3(C), a party who seeks to change the order appealed from in the

event the order is reversed must file a notice of cross-appeal. As this Court explained in Glidden

Co. v. Lumbermens Mut. Cas. Co., 112 Ohio St.3d 470, 476, 2006-Ohio-6553 ¶32, absent a

notice of cross-appeal, cross-assignments of error may be used as a shield to protect the

judgment but not as a sword. Huntington sought to change the trial court order. It asked the

court of appeals to reverse the trial court and find that R.C. 1109 barred this case ad limine. That

required a notice of cross appeal. Specifically, Huntington asked the court of appeals, in its R.C.

6

1109 arguments, to reverse the trial court and issue an order of disniissal on the merits. To do so,

Huntington was required to file a notice of cross-appeal. It did not, and this issue was not

properly before the appeals court.

This point not only frames the matter as not properly before this Court, it also highlights

the impropriety of Huntington's request to accept its appeal. The trial court addressed

Huntington's R.C. 1109.69 argument only in the context of numerosity as related to the class

defmition. (Opinion and Order p. 16 et seq.) In that context, discretionary review by this Court

of the merits of an R.C. 1109.69 argument would not lie because the lower court did not yet

address the matter for which discretionary review is sought. State v. Tipka (1984), 12 Ohio

St.3d 258, 261 (declining to address issues "which were neither before, nor decided by, the

courts below").

On the issue of the lack of cross-appeal, in the appeals court, Huntington presented the

argument as a statute of limitations issue. (Opinion, pp. 9-10.) Huntington sought not to contest

the issue of numerosity but instead to bar Ms. Nagel's claim and those of prospective class

members on the merits. Huntington's Cross-Assignment of Error on this issue was:

The trial court erred when it concluded that the one-yearlimitations period of R.C. 1109.69 did not bar the claims ofappellant and her proposed class members. (Emphasis added)

But the trial court denied Ms. Nagel's motion to certify a class. (Opinion and Order, p.

26.) That is all. Nagel's individual claim remained pending, and Huntington's R.C. 1109.69

defenses remained pending for resolution on the merits. In its "cross-assignment of error,"

Huntington sought to use its statute of limitations argument to dismiss Nagel's individual claim

on the merits. Had Huntington prevailed on the relief it was requesting from the appeals court,

7

then the order below would bave been changed from one denying class certification to one of

dismissal.

The only pending motion before the trial court was to certify a class, not to dismiss

Nagel's case. Huntington's argument on this point was not raised for the purpose of protecting

the trial court's order denying certification but rather to change the order to one of dismissal of

the lawsuit. Huntington was using the argument as a sword rather than a shield.

Huntington's cross assignment of error on this point therefore required a notice of cross-

appeal. Huntington's "cross-assignment of error" on this issue was not properly before the

Eighth District. Accordingly, Huntington's fixst proposition of law here on the very same issue

is not properly before this Court, and discretionary review should not be granted.

Turning now to the issue of the "merits" of Huntington seeking to raise R.C. 1109.69 in

this Court now, the question Huntington presents is not ripe for review.

The bar of a statute of limitations is an affirmative defense' which goes to the merits of

the class claims. Talwar v. Kattan (3d Dist. No. 1-98-83), 1999-Ohio-803 ("the dismissal of an

action on the basis that the statute of liniitations has expired operates as an adjudication upon the

merits"); Wood v. Ward (1853), 10 Ohio Dec. Reprint 505, 506 ("[t]he plea of the statute of

limitations goes directly to the legal merits of the case"). As such, this issue will not be decided

on a motion to certify a class.

The Third Circuit addressed this in In re Chiang (3d Cir. 2004), 385 F.3d 256, 269 and

determined that "the issue of timeliness goes to the merits of the case, not to the definition of the

class." The court concluded that the claims "can not be prejudged to deny certification." The

court in Morris v. Wachovia Sec„ Inc. (E.D. Va. 2004), 223 F.R.D. 284, 296, citing Alba Conte

State ex rel. Shemo v. Ciry ofMayfield Heights, 96 Ohio St.3d 379, 384, 2002 Ohio 4931 ¶ 25.

8

& Herbert Newberg, Newberg on Class Actions (4th ed. 2002), at Section 22:28, noted that

"courts have held that a statute of limitations defense as to the named plaintiff wili not ordinarily

defeat typicality because the issue of whether or not a statute of limitations applies is a merits

determination that cannot be assessed at the class certification stage."

Huntington pretends that it is raising a matter that has been decided on its merits below.

Really? The factual underpinnings bf R.C. 1109.69 were not considered, or decided, by the trial

court or the appeals court. Huntington's request that this Court take them up is out of order and

improper.

Ascertaining the applicability of R.C. 1109.69 deals with the merits because it requires

(1) an interpretation of the disputed term "consumer credit loan"; (2) a determination of whether

the transactions at issue are "consumer credit loans"; (3) a determination of whether the term

"consumer credit loans" encompasses mortgages; (4) a determination of whether the statute

applies to the separate statutory duty imposed by R.C. 5301.36; (5) a determination of whether

R.C. 1109.69 trumps R.C.2305.07, which this Court already determined provides the six-year

statute of limitations for a violation of RC. 5301.36; and (6) a determination of whether the

outcome of the case would depend on the contents of records for which a period of retention or

preservation is set forth in R.C. 1109.69.

Whether Huntington satisfied the above elements was not addressed below and is not a

straight-forward limitations issue with no factual disputes, as Huntington implies. First, there is

the interpretation of the term "consumer credit loan." In this case, that requires a determination

of whether that term encompasses mortgages. A mortgage is not typically considered as a

"consumer credit loan," as evidenced by government regulator reporting forms (which

distinguish mortgage loans). Mortgages also affect title to real property and records related to

9

I

them would be expected to have a much longer retention period than one year. Mortgages are

not specifically mentioned in R.C. 1109.69. Pursuant to R.C. 1109.69(B), records not listed as

having a one-year retention period rnust be retained for six years from the date of completion of

the tra -̂ysaction to which the record relates. (Notably, six years is the time period this Court

recently held as the applicable limitations for R.C. 5301.36 claims. Rosette v. Countrywide

Home Loans, Inc., 105 Ohio St.3d 296, 2005-Ohio-1736.)

Also notably, the Ohio Uniform Commercial Code defines the term "consumer credit

mortgage loan transaction" specifically not to include a "residential mortgage transaction."

R.C. 1349.25(D)(2)(c).

Next, if the term "consumer credit loan" encompasses mortgages, then it must be decided

whether the statute applies to the duty imposed by R.C. 5301.36-a duty separate and distinct

from any lending transaction and hence separate and distinct from any "consumer credit loan."

See Pinchot v. Charter One Ban7y F.S.B., 99 Ohio St.3d 390, 2003-Ohio-4122.

If none of these determinations renders R.C. 1109.69 inapplicable, then the question

becomes whether R.C. 1109.69 tramps R.C.2305.07, which this Court has determined provides

the six-year statute of limitations for a violation of R.C. 5301.36. Rosette (R.C. 5301.36(C) "is a

remedial statute and is thus subject to the six-year limitations period of R.C. 2305.07."). One

crucial fact question is whether an action for the statutory damages under R.C. 5301.36 is "based

on," or its determination "would depend on," the "contents of records for which a period of

retention or preservation is set forth in divisions (A) and (B)" as is required by R.C. 1109.69(F)

to prevent a claim. In this record, the facts on that issue are in notable dispute-with Huntington

claiming that the suit tums on records of "consumer credit loans," while Plaintiff claims they are

10

decided on mortgage data files independent of any records argued by Huntington. The trial

court, itself, highlighted those factual disagreements at pages 4 and 5 of its Opinion:

Huntington, in its regular course of business compiles the namesand addresses in an electronic database of customers whosemortgages are `paid off,' (hereinafter referred to as satisfied), tocomply with O.R.C. 5301.36. Deposition of Irving Adler at 32.Due to the fact that a list containing the date that the mortgage ispaid in fiill or satisfied is available intervally at Huntington, and alist of the date of recording the certificate satisfaction is a matter ofpublic record available from the County Recorder's Office,Huntington is readily able to identify the class members. ConnieMcKee Deposition at pgs. 47-50.

i

The Fidelity system. referenced supra, creates a list of mortgageswhich have been satisfied in order of date in which saidsatisfaction shall be recorded, by statute. Defendant's argumentthat Plaintiff would have to review the entirety of each loandocument stored in boxes to identifv class members is baseless.Huntington compiles a list of the mortgages that need to besatisfied and presents them to the proper department. McKeedepo. at 48. Instead, the evidence demonstrates that whether or nota paper file which can be subsequently imaged or an imageddocument exists, is not relevant. Hence, the assertion of defensecounsel that the information sought by Nagel cannot be ascertainedby `pushing a couple of buttons' is specious at best. (Emphasisadded.)

Huntington simply must review the list of dates compiled inFidelity as the dates of satisfaction and juxtapose them with therecordinglfiling date which is readily obtainable from a CountyRecorder's Office as a matter of public record.

These disputes were canvassed by the trial court and appeals court here in the limited

context of class certification, but the lower courts refrained from deciding them on the merits.

For these reasons, Huntington is unwarranted in its attempt to now have this Court rule

upon matters that it did not bring to the court of appeals by cross-appeal; and matters that also

have not been addressed on their merits by either the trial court or the appeals court. State v.

11

Pierce (1992), 64 Ohio St.3d 490, 502 ([i]ssues not raised at the trial or appellate level need not

be reviewed by this court").

Huntington's Proposition of Law 2 does not present an issue ofpublic or great general interest.

Huntington's second proposition says that a trial court may view the nature of the claims

raised-but not decide their merits-in ruling-upon class certification. That is already the law

from this Court and the U.S. Supreme Court. When the law is already clear on that issue, the

proposition does not present an issue of public or great general interest. Noble v. Colwell (1989),

44 Ohio St.3d 92, 94 (issues of public or great general interest are "[n]ovel questions of law or

procedure"); Greenwood v. Taft (1996), 75 Ohio St.3d 1204, Justice Pfeifer, dissenting (urging

certification on basis of public or great general interest since the case "concerns an area which

this court has not recently addressed, and presents novel legal issues"); Ohio S. Ct. Prac. RULE

XII(A) (appeal will be dismissed as improvidently allowe.d where the court fmds "that the same

question has been raised and passed upon in a prior appeal").

As this Court explained in Hamilton v. Ohio Sav. Bank (1998), 82 Ohio St.3d 67, 70, a

"trial court's discretion in deciding whether to certify a class action is not unlimited, and indeed

is bounded by and must be exercised within the framework of Civ.R. 23." Contrary to

Huntington's argument, a trial court may not inquire into the merits of the claims during class

certification. Ojalvo v. Bd. of Trustees, supra ("Class action certification does not go to the

merits of the action"). (Emphasis sic.)

The consequence of this rule is that the trial court generally accepts the allegations in the

complaint as true when ruling on a motion to certify. Rimedio v. Summacare, 172 Ohio App.3d

12

639, 644, 2007-Ohio-3244 ¶12 ("When a trial court considers a motion to certify a class, it

accepts as true the allegations in the complaint, without considering the merits of those

allegations and claims. Ojalvo v. Bd. of Trustees of Ohio State Univ."); Estate of Reed v. Hadley,

163 Ohio App.3d 464, 472, 2005-Ohio-5016 ¶16 ("The trial court must assume the truth of the

allegations in the complaint and not consider the merits of the case when deciding a Civ.R. 23

motion. See, Ojalvo v. Bd of Trustees of Ohio State Univ."); Pyles v. Johnson, 143 Ohio App.3d

720, 731, 2001-Ohio-2478 ("the trial court must assume the truth of allegations in the complaint

and not consider the merits of the case" [citing Ojalvo v. Bd. of Trustees of Ohio State Univ. ]).

Huntington relies on the fact that the trial court went beyond the pleadings and reviewed

evidence when deciding class certification. The question however is not whether the continuity

for class certification lies in the credited allegations of the complaint, or the written discovery

responses and documents. Either way, the trial judge asks: am I presented with a claim that

meets the requirements of Civ.R. 23 for class certification?

Huntington's real argument is that a trial court's duty to decide if the named plaintiff is

adequate under Rule 23(A)(4) allows a determination whether the named plaintiff's claim is

valid. If a plaintiff has no valid claim, argues Huntington, then the plaintiff is not a member of

the class.

A person who had no mortgage with Huntington is not a member of the class and fails the

adequacy prong. A person with a mortgage challenging an alleged late release is a valid class

plaintif£ The issue of whether the potential class members' releases are detemnined to be timely

based on purported mailing dates, or actual recording dates, is not adequacy but merits. It is

common to all of the class. Otherwise, a court would never reach the class determination-if it

ruled, instead, on the merits of the plaintiff's underlying common merits claim.

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May a trial court decide that common merits question when raling on a class certification

motiou? The law on this is longstanding. This Court in Ojalvo v. Bd of Trustees, supra, at 236

concluded that a court abuses its discretion when it denies certification of a class action based on

the merits of the claim.

Rather than being conflicted or unclear, the courts of appeals have been consistent in

following that rule. See also George v. Ohio Dep't of Human Servs. (2001), 145 Ohio App.3d

681, 687 ("jd]etermining the merits of a claim at the class certification stage constitutes an abuse

of discretion"); Ass'n for Hosps. & Health Sys. v. Dep't of Human Servs. (10th Dist Nos. 04AP-

762 & 04AP-763), 2006-Ohio-67, pp. 25-26 ("a court abuses its discretion by determining the

merits of a claim at the class certification stage"); Cobbett v. Human Dev. & Counseling Assocs.

(Dec. 23, 1985), 5th Dist No. CA-6711 ("[t]o weigh the merits at this stage is an abuse of

discretion").

As the court of appeals said in this specific case at page 5,

The merits of the essential issue in the case-at-bar, whether the`date of mailing' is equivalent to the `date of filing,' should not beat issue at this juncture in the proceedings. A trial court mayexamine the underling claims, but only for the purpose ofdetermining whether common questions exist and predominate andnot for the purpose of determining the validity of such claims. ...

That is a correct statement of the law. There is no unsettled issue here making a review

by this Court necessary. The motion to accept the appeal should be denied.

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Respectfully submitted,

Patrick J. Perotti, Esq. (#0005481)(COUNSEL OF RECORD)

DWORKEN & BERNSTEIN Co., L.P.A.60 South Park PlacePainesville, Ohio 44077(440) 352-3391 (440) 352-3469 FaxEmail: pperotti@drvorkenlaw.com

Brian G. Ruschel (#0046631)925 Euclid AvenueCleveland, OH 44115(216) 621-3370 (216) 621-3371 FaxEmail: bryschel@aol. corrc

Counsel for Plaintiff-Appellee

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PROOF OF SERVICE

A copy of the foregoing Brief in Opposition to Jurisdiction was served via email, and by

regular U.S. Mail, postage prepaid, on January 30, 2009, addressed as follows:

Jennifer T. Mills, Esq.(COUNSEL OF RECORD)L. Bradfield Hughes, Esq.Porter, Wright, Morris & Arthur LLP41 South High Street, Suite 3100Columbus, OH 43215

And as a courtesy to:

Brian G. Ruschel, Esq.925 Euclid AvenueCleveland, OH 44115

Patrick J. Perotti, Esq. (#0005481)DwoxuEN & BExrrsTEmt Co., L.P.A.

Counsel for Plaintiff-Appellee

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