Voss v. Quicken Loans, L.L.C. , 2024 Ohio 12 ( 2024 )

[Cite as Voss v. Quicken Loans, L.L.C., 2024-Ohio-12.]
``IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
SAMUEL VOSS, : APPEAL NO. C-230065
TRIAL NO. A-2002899
Plaintiff-Appellee,
:
vs.
:
QUICKEN LOANS, LLC, O P I N I O N.
and :
MORTGAGE ELECTRONIC
:
REGISTRATION SYSTEMS, INC.,
Defendants-Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: January 5, 2024
Markovits, Stock & DeMarco, LLC, W.B. Markovits, Terence R. Coates, Justin C.
Walker, Dylan J. Gould, Wolterman Law Office, LPA, and Matthew C. Metzger, for
Plaintiff-Appellee,
Goodwin Procter LLP, William M. Jay, Brooks R. Brown, Joseph Yenouskas, Frost
Brown Todd LLC, Nathaniel L. Truit, James C. Frooman, Manley Burke LPA and
Timothy M. Burke, for Defendants-Appellants.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendants-appellants Quicken Loans, LLC, now known as Rocket
Mortgage, LLC, and Mortgage Electronic Registration Systems, Inc., (collectively
“Rocket Mortgage”) challenge the trial court’s decision to grant plaintiff-appellee
Samuel Voss’s motion to certify a class in this action, which seeks damages for Rocket
Mortgage’s violations of Ohio’s mortgage-recording statute, R.C. 5301.36.
{¶2} First, Rocket Mortgage argues that a recent amendment to R.C.
5301.36(C), which barred class recovery of statutory damages for statutory violations
that occurred in 2020, warranted a denial of Voss’s motion. Second, Rocket Mortgage
argues that Voss and the class lack standing to raise claims for violations of the statute.
Third, Rocket Mortgage claims that the trial court abused its discretion when it found
that common issues predominate the class.
{¶3} We hold that the trial court properly considered the version of R.C.
5301.36(C) that was in effect at the time of its decision. We also hold that the
legislature conferred standing on parties like Voss under R.C. 5301.36(C)(1). Finally,
we hold that the trial court reasonably determined that common issues of law and fact
predominate the class.
I. Facts and Procedure
{¶4} On February 5, 2020, plaintiff-appellee Samuel Voss purchased real
property at 486 Stanley Avenue in Cincinnati, Ohio, from Donald Dow, Jr. Dow had
purchased the property in 2016 with a loan from Rocket Mortgage, secured by a
mortgage with Mortgage Electronic Registration Systems, Inc., (“MERS”). Dow used
the proceeds of the sale to satisfy his obligation to Rocket Mortgage.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} On May 26, 2020, more than 90 days later, Rocket Mortgage mailed the
release of that mortgage as evidence of its satisfaction to the Hamilton County
Recorder’s office. The satisfaction was recorded the next day.
{¶6} Voss sued Rocket Mortgage, alleging a violation of R.C. 5301.36(B).
Under Ohio law, Rocket Mortgage had until May 5, 2020, to record the satisfaction of
the mortgage with the Hamilton County Recorder’s office. For its part, Rocket
Mortgage acknowledges that it recorded the satisfaction of the mortgage 22 days after
the 90-day statutory deadline.
{¶7} Rocket Mortgage removed the case to federal court. See Voss v. Quicken
Loans LLC, S.D.Ohio No. 1:20-cv-756, 2021 U.S. Dist. LEXIS 161380 (Aug. 26, 2021).
Roughly one year later, the federal court remanded the case back to the common pleas
court because the amount in controversy fell well short of 28 U.S.C. 1332’s $75,000
threshold for diversity jurisdiction, and alternatively, because Voss failed to show a
concrete injury for Article III standing under the United States Constitution. Id. at 17.
The trial court denied Rocket Mortgage’s motion for summary judgment
{¶8} Months later, Rocket Mortgage moved for summary judgment, arguing
that Voss lacked standing to sue under Ohio law and that the COVID-19 pandemic
constituted an unforeseen event excusing its noncompliance with the recording
statute. In support, Rocket Mortgage relied on roughly 2,000 pages of deposition
testimony, affidavits, government orders, and an expert report.
{¶9} In response, Voss argued that he had standing under Ohio law, which
recognizes intangible injuries, and under R.C. 5301.36, which confers statutory
standing. And Voss cited mortgage-release documents filed by Rocket Mortgage in
April 2020 with the Hamilton County Recorder’s office to demonstrate that statutory
compliance was possible.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} The trial court denied Rocket Mortgage’s motion. It addressed Rocket
Mortgage’s standing claim and explained that “R.C. 5301.36(C) states that ‘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.’ ” (Emphasis added by
the trial court.) In addition, the trial court found “genuine issues of material fact
existing in determining whether [the statutory violation] was excusable.”
The trial court granted Voss’s motion for class certification
{¶11} In June 2022, Voss moved to certify a class of all mortgagors or current
owners of property that was the subject of a loan issued by Rocket Mortgage, and its
affiliates and subsidiaries, “where the mortgage was satisfied in full, and the
mortgagee did not record an entry of mortgage satisfaction with the applicable county
recorder’s office within 90 days of the date of mortgage satisfaction, from August 19,
2014 through August 19, 2020.” In addition, Voss asked to serve as class
representative. Rocket Mortgage opposed what it described as a perfunctory motion
for class certification, claiming that Voss failed to meet his burdens of production and
persuasion. Voss replied in support of his motion.
{¶12} In January 2023, Rocket Mortgage supplemented its objection to class
certification, arguing that the General Assembly’s amendment to R.C. 5301.36(C),
which was signed into law on January 6, 2023, with an April 6, 2023 effective date,
precluded recovery of statutory damages in class actions for violations of R.C.
5301.36(B) that occurred in 2020.
{¶13} In February 2023, the trial court granted Voss’s motion for class
certification, explaining that the class is ascertainable, violations of the statutory duty
are common issues of law and fact, and questions of law and fact common to the class
predominate. Plus, the trial court found that “retroactive application of the statute is
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OHIO FIRST DISTRICT COURT OF APPEALS
not permitted and will apply the law as was written when this action was commenced
and is currently written.”
{¶14} Rocket Mortgage appeals in three assignments of error.
II. Law and Analysis
{¶15} First, Rocket Mortgage argues that the trial court improperly failed to
apply R.C. 5301.36(C)(2) to Voss’s motion for class certification. Second, Rocket
Mortgage maintains that Voss and the entire class lack standing to recover for a
violation of R.C. 5301.36. Third, Rocket Mortgage challenges the trial court’s finding
that questions of law or fact common to the class predominate.
The trial court appropriately considered the law in effect as written
{¶16} In its first assignment of error, Rocket Mortgage argues that newly
enacted R.C. 5301.36(C)(2) warranted a denial of class certification under two
theories. First, it contends that R.C. 5301.36(C)(2) applies prospectively to this case.
Second, it maintains that R.C. 5301.36(C)(2) was permissibly written to apply
retroactively.
{¶17} Ordinarily, we review a trial court’s class-certification decision for an
abuse of discretion. Jones v. Sharefax Credit Union, Inc., 1st Dist. Hamilton No. C-
210260, 2022-Ohio-176, ¶ 22. But we review questions of law de novo. Crutcher v.
Oncology/Hematology Care, Inc., 2022-Ohio-4105, 201 N.E.3d 446, ¶ 55 (1st Dist.).
{¶18} Ohio’s mortgage-recording statute requires mortgage lenders to “record
a release of the mortgage evidencing the fact of its satisfaction” within 90 days of the
satisfaction of the mortgage. R.C. 5301.36(B). When the trial court certified the class
on February 8, 2023, former R.C. 5301.36(C) provided that “the mortgagor of the
unrecorded satisfaction and current owner of the real property to which the mortgage
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OHIO FIRST DISTRICT COURT OF APPEALS
pertains may recover, in a civil action, damages of two hundred fifty dollars” for
noncompliance with that 90-day statutory deadline.
{¶19} Effective April 7, 2023, R.C. 5301.36(C) now states:
(1) Except as provided in division (C)(2) of this section, 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.
(2) A mortgagor or current owner of the real property shall not be
eligible to collect the damages described in division (C)(1) of this
section via a class action for violations of division (B) of this section
that occurred in calendar year 2020. This division does not preclude
or affect any other legal remedies or damages that may be available to
the mortgagor or current owner.
(Emphasis added.)
{¶20} Voss’s proposed class, and the one certified by the trial court, consists
of mortgagors or current owners of property subject to a mortgage issued by Rocket
Mortgage, “where the mortgage was satisfied in full, and the mortgagee did not record
an entry of mortgage satisfaction with the applicable county recorder’s office within
90 days of the date of mortgage satisfaction, from August 19, 2014[,] through August
19, 2020.” Because the statutory amendment precludes statutory damages “via a class
action for violations * * * that occurred in calendar year 2020,” Rocket Mortgage
argues that certifying Voss’s proposed class was untenable.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} But while Rocket Mortgage insists that the trial court erred in certifying
that class because of the statutory amendment’s prospective and retrospective
application, this argument misfires on the launchpad. The trial court certified the class
on February 8, 2023, nearly two months before the amendment’s April 7, 2023
effective date. On February 8, 2023, the statutory amendment was not the law. Indeed,
the trial court explained that it was bound to apply R.C. 5301.36(C) as “currently
written.” Like the trial court, we cannot ignore the statute’s effective date. In this
regard, “[a] court is not bound to apply a statute until its effective date.” State v. Jude,
11th Dist. Lake No. 2011-L-095, 2012-Ohio-1887, ¶ 19. And as an error-correcting
court, we cannot say that the trial court erred when it applied the law as written at the
time of its decision. See Bank of Am., N.A. v. Thompson, 2d Dist. Montgomery No.
25952, 2014-Ohio-2300, ¶ 33 (Froelich, P.J., concurring).
{¶22} In response, Rocket Mortgage maintains that “[i]t makes no difference
that [R.C.] 5301.36(C) had not yet taken effect” because the statutory amendment
would inevitably preclude class-wide recovery. But this argument overlooks the
significance of the statute’s effective date. The 90-day period preceding a statute’s
effective date is more than a mere formality.
{¶23} Under Article II, Section 1(c) of the Ohio Constitution, Ohio laws
generally “do not take effect until 90 days have passed from the date they are filed by
the governor with the secretary of state, to allow for a possible referendum.” State ex
rel. Ohio Gen. Assembly v. Brunner, 115 Ohio St.3d 103, 2007-Ohio-4460, 873 N.E.2d
1232, ¶ 9. Indeed, those 90 days are of “paramount importance” and provide “a means
for direct political participation, allowing the people the final decision, amounting to
a veto power, over enactments of representative bodies.” Id. at ¶ 8. A premature
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OHIO FIRST DISTRICT COURT OF APPEALS
application of the statutory amendment would contravene Article II, Section 1(c) of
the Ohio Constitution and the democratic principles it embodies.
{¶24} We overrule Rocket Mortgage’s first assignment of error.
Voss and the class have standing under R.C. 5301.36(C)
{¶25} Next, Rocket Mortgage argues that Voss and the class lack standing
without any proof of injury. In this regard, Voss explained at his deposition that the
unrecorded satisfaction cast a temporary cloud over his property but had no practical
effect on his ability to live in the house, rent the house, pay his mortgage, or use the
house. Likewise, he conceded that he did not try to sell the house. Further, Rocket
Mortgage maintains that the trial court erroneously found that R.C. 5301.36(C)
confers standing.
{¶26} Standing is an issue of law that we review de novo. See Moore v. City of
Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 20. Standing
requirements derive from Article IV, Section 4(B) of the Ohio Constitution, which
provides that “courts of common pleas and divisions thereof shall have such original
jurisdiction over all justiciable matters * * * as may be provided by law.” A legal claim
must be justiciable in order to invoke the jurisdiction of the common pleas court.
Relevant to this case, a claim is justiciable if a party has standing, or the right to invoke
the jurisdiction of the court. Albanese v. Batman, 148 Ohio St.3d 85, 2016-Ohio-5814,
68 N.E.3d 800, ¶ 24. In other words, standing is the “ ‘right to make a legal claim or
seek judicial enforcement of a legal duty or right.’ ” Cowan v. Ohio Dept. of Job &
Family Servs., 2021-Ohio-1798, 173 N.E.3d 109, ¶ 5 (1st Dist.), quoting Albanese at ¶
24. “[S]tanding turns on the nature and source of the claim asserted by the plaintiffs.”
Moore at ¶ 23. And we are mindful that the Ohio Supreme Court has cautioned judges
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OHIO FIRST DISTRICT COURT OF APPEALS
“to remember, standing is not a technical rule intended to keep aggrieved parties out
of court.” Id. at ¶ 47.
{¶27} Standing is a threshold question in any case—“[a] party must establish
standing to sue before a court can consider the merits of the claim.” State ex rel. Ohio
Stands Up!, Inc. v. DeWine, 167 Ohio St.3d 248, 2021-Ohio-4382, 192 N.E.3d 371, ¶ 5.
In Ohio, a party can establish standing in two ways. See Cowan at ¶ 5. The common-
law test for standing requires a party to have “ ‘(1) an injury (2) that is fairly traceable
to the defendant’s allegedly unlawful conduct and (3) is likely to be redressed by the
requested relief.’ ” Lipp v. Univ. of Cincinnati, 1st Dist. Hamilton No. C-220312, 2023-
Ohio-1224, ¶ 19, quoting Ohioans for Concealed Carry, Inc. v. City of Columbus, 164
Ohio St.3d 291, 2020-Ohio-6724, 172 N.E.3d 935, ¶ 12.
{¶28} But “[s]tanding may also be conferred by statute.” Concealed Carry at
¶ 12, citing Middletown v. Ferguson, 25 Ohio St.3d 71, 75, 495 N.E.2d 380 (1986). This
reflects the principle that common pleas courts have “jurisdiction over all justiciable
matters * * * as may be provided by law.” Article IV, Section 4(B), Ohio Constitution.
“Common-law standing principles do not apply when standing is authorized by
statute.” Cool v. Frenchko, 2022-Ohio-3747, 200 N.E.3d 562, ¶ 29 (10th Dist.).
Statutory standing requires an express “ ‘intention to abrogate the common-law
requirements for standing.’ ” Id., quoting Smith v. Ohio State Univ., 10th Dist.
Franklin No. 17AP-218, 2017-Ohio-8836, ¶ 13. “When a statute provides for judicial
review, ‘ “the inquiry as to standing must begin with a determination of whether the
statute in question authorizes review at the behest of the plaintiff.” ’ ” Middletown at
75-76, quoting Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 31 L.Ed.2d 636(1972).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶29} Here, R.C. 5301.36(C)(1) provides that, if a mortgage lender violates its
statutory duty to record the satisfaction of a mortgage within 90 days, “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.”
The statute unambiguously identifies a class of plaintiffs–the mortgagor and the
current owner of the real property. Elsewhere, the statute explains that “A current
owner may combine the civil actions described in divisions (C) and (E) of this section
by bringing one action to collect for both damages, or may bring separate actions.”
R.C. 5301.36(G).
{¶30} And we cannot ignore that the Ohio Supreme Court has explained that
the recovery of $250 in statutory damages “is not tied to any actual losses suffered by
an aggrieved individual.” Radatz v. Fannie Mae, 145 Ohio St.3d 475, 2016-Ohio-1137,
50 N.E.3d 527, ¶ 26. In this regard, “R.C. 5301.36(C) exacts an arbitrary sum of $250
for each offense, without any reference to the value of the mortgaged property or any
losses sustained by the borrower, for the purpose of punishing the mortgagee for
noncompliance.” Id. at ¶ 28. To hold that the statute does not confer standing to
mortgagors and property owners would defeat the purpose of the statute–“to promote
efficiency and certainty in real-estate transactions and to penalize the untimely
recording of satisfied mortgages rather than to compensate borrowers in full for actual
losses.” Id. at ¶ 25.
{¶31} Therefore, we hold that R.C. 5301.36 confers standing to mortgagors
and owners of “real property to which the mortgage pertains” to file claims seeking
statutory damages for violations of R.C. 5301.36(B). Voss and the class members are
mortgagors or property owners of real property subject to a mortgage issued by Rocket
Mortgage. His complaint alleged violations of R.C. 5301.36(B): that Rocket Mortgage
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OHIO FIRST DISTRICT COURT OF APPEALS
failed to record the satisfaction of the respective mortgages within 90 days as required
by statute.
{¶32} We agree with the trial court that Voss and the class have standing
conferred by the statute. As a result, it is unnecessary to address Rocket Mortgage’s
common-law standing argument. We overrule the second assignment of error.
Certifying the class did not constitute an abuse of discretion
{¶33} In its third assignment of error, Rocket Mortgage challenges the trial
court’s finding, under Civ.R. 23(B)(3), that questions of law or fact common to the
members of the class predominate. In its view, its defense to the claims turn on “highly
individualized facts” related to the COVID-19 pandemic and related shutdowns.
{¶34} The trial court’s decision to certify a class is an exercise of a trial court’s
broad discretion, and we will not disturb a class certification “absent an abuse of
discretion.” Vinci v. Am. Can Co., 9 Ohio St.3d 98, 99, 459 N.E.2d 507 (1984). We
defer to the trial court on these matters because, as the Ohio Supreme Court has
explained,
A trial court which routinely handles case-management problems is in
the best position to analyze the difficulties which can be anticipated in
litigation of class actions. It is at the trial level that decisions as to class
definition and the scope of questions to be treated as class issues should
be made.
Marks v. C.P. Chem. Co., 31 Ohio St.3d 200, 201, 509 N.E.2d 1249 (1987).
{¶35} This discretion “ ‘must be exercised within the framework of Civ.R.
23.’ ” Smith v. Ohio State Univ., 2022-Ohio-4101, 200 N.E.3d 1249, ¶ 24 (10th Dist.),
quoting Egbert v. Shamrock Towing, Inc., 10th Dist. Franklin No. 20AP-266, 2022-
Ohio-474, ¶ 15, citing Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 70, 694 N.E.2d
11OHIO FIRST DISTRICT COURT OF APPEALS
442 (1998). And no court “ ‘has the authority, within its discretion, to commit an error
of law.’ ” Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463,
¶ 34, quoting State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d 345, ¶
17 (2d Dist.).
{¶36} Under Civ.R. 23, a trial court must find that seven prerequisites are
satisfied before certifying a class:
(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 impractical; (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 satisfied.
In re Consol. Mtge. Satisfaction Cases, 97 Ohio St.3d 465, 2002-Ohio-6720, 780
N.E.2d 556, ¶ 6.
{¶37} Relevant here, Civ.R. 23(B)(3) requires that a court make two findings—
“First, it must find that questions of law or fact common to the members of the class
predominate over any questions affecting only individual members; and second, the
court must find that a class action is superior to other available methods for the fair
and efficient adjudication of the controversy.” Id. at ¶ 7. Common questions alone are
not enough: “common questions must represent a significant aspect of the case and
they must be able to be resolved for all members of the class in a single adjudication.”
Id. at ¶ 8.
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{¶38} While the trial court may not consider the merits of a claim at the
certification stage, it “may examine the underlying claims, but only for the purpose of
determining whether common questions exist and predominate and not for the
purpose of determining the validity of such claims.” Nagel v. Huntington Natl. Bank,
179 Ohio App.3d 126, 2008-Ohio-5741, 900 N.E.2d 1060, ¶ 12 (8th Dist.), citing George
v. Ohio Dept. of Human Servs, 145 Ohio App.3d 681, 687, 763 N.E.2d 1261 (2001).
{¶39} Here, the trial court found that “one question of law clearly
predominates – whether Defendants violated their duty – and a single adjudication as
a class is the most efficient and fair manner to resolve this dispute.” According to
Rocket Mortgage, this constitutes an abuse of discretion because the material facts
related to its pandemic defense “will vary substantially based on the circumstances.”
The trial court dismissed Rocket Mortgage’s argument as having been rejected by the
Ohio Supreme Court and found that Rocket Mortgage’s pandemic-related defense
supported class certification.
{¶40} In In re Consol. Mtge. Satisfaction Cases, the Ohio Supreme Court
addressed the propriety of class-action lawsuits for violations of R.C. 5301.36 and
concluded that these statutory claims “necessarily involve a common question of law:
whether a particular lender violated its duty to record a satisfaction of mortgage.”
Mtge. Satisfaction Cases, 97 Ohio St.3d 465, 2002-Ohio-6720, 780 N.E.2d 556, at
¶ 10. As noted by the trial court, the Ohio Supreme Court recognized that, “the trial
court of course will be presented with different evidence relating to each lender’s
failure to record a satisfaction of a residential mortgage.” Id. at ¶ 10. But it explained
that “mere existence of different facts associated with the various members of a
proposed class is not by itself a bar to certification of that class.” Id.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶41} To be sure, Rocket Mortgage presented evidence that the pandemic
changed its procedures for recording the satisfaction and release of mortgages. As a
result of the pandemic, its mortgage-release team shifted to remote work and
authorized a limited number of team members to print and store mortgage-release
documents. Each stage of the mortgage-release process became increasingly
complicated and time consuming. But the trial court reasonably found that these facts,
as they relate to Rocket Mortgage’s defense of impossibility, present issues that are
capable of resolution on a class-wide basis.
{¶42} Rocket Mortgage’s expert explained that “[e]ach Ohio [c]ounty handled
the situation differently,” with some recorder’s offices closed while others “were open
to record instruments, but all documents had to be deposited with the County in a lock
box, where the papers would remain for 24 hours, then disinfected, and then handled
by whatever County employees were able to work.” Other counties like Cuyahoga
County switched to E-Recording. But “the trial court is in the best position to consider
the feasibility of gathering and analyzing class-wide evidence.” Mtge. Satisfaction
Cases at ¶ 12. And while “individualized fact-finding may defeat class certification, this
is true only when the cause of the problem is plaintiff’s overly broad class definition.”
Cantlin v. Smythe Cramer Co., 2018-Ohio-4607, 114 N.E.3d 1260, ¶ 19 (8th Dist.).
{¶43} In sum, the trial court’s finding of predominance was not unreasonable,
and we find no abuse of discretion in certifying the class.
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OHIO FIRST DISTRICT COURT OF APPEALS
Voss satisfied his burden of production
{¶44} Finally, Rocket Mortgage contends that Voss’s “skeleton” motion for
class certification failed to carry his burden under Civ.R. 23. Rocket Mortgage
contends Voss “sandbagged” Rocket Mortgage by subsequently filing a reply with 400
pages of new evidence including three new affidavits.
{¶45} “The burden of establishing the right to a class action rests upon the
plaintiff.” Shaver v. Std. Oil Co., 68 Ohio App.3d 783, 589 N.E.2d 1348 (6th
Dist.1990). In support of his motion, Voss cited portions of an affidavit attached to his
motion and the existing evidence in the record. At this point in the litigation, the
record consisted of almost 2,000 pages of deposition testimony, responses to
interrogatories, expert reports, affidavits, and mortgage documents. Relying on such
evidence, Voss carried his burden.
{¶46} Furthermore, a review of the record reveals that Voss’s allegedly new
arguments were actually responses to Rocket Mortgage’s arguments against class
certification. And “[w]here the affidavit does not raise new grounds and is submitted
to counter evidence in a memorandum in opposition, there ‘is no general prohibition
against affidavits being timely submitted with reply briefs, but instead, is a practice
that has been utilized in other cases.’ ” DeepRock Disposal Solutions, LLC v. Forté
Prods., LLC, 4th Dist. Washington No. 20CA15, 2021-Ohio-1436, ¶ 63, quoting
Cashlink, LLC v. Mosin, Inc., 10th Dist. Franklin No. 12AP-395, 2012-Ohio-5906, ¶ 11.
{¶47} We overrule the third assignment of error.
III. Conclusion
{¶48} We overrule Rocket Mortgage’s three assignments of error and affirm
the trial court’s class certification.
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Judgment affirmed.
ZAYAS, P.J., and KINSLEY, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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