[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,

 

Plaintiff-Appellee,

vs.

QUICKEN LOANS, LLC,

and

MORTGAGE ELECTRONIC 

REGISTRATION SYSTEMS, INC.,

Defendants-Appellants.

:

:

:

:

:

:

APPEAL NO. C-230065

TRIAL NO. A-2002899

 

O P I N I O N.

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

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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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{¶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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{¶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 
OHIO FIRST DISTRICT COURT OF APPEALS

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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. C210260, 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 
OHIO FIRST DISTRICT COURT OF APPEALS

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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. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶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 
OHIO FIRST DISTRICT COURT OF APPEALS

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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 
OHIO FIRST DISTRICT COURT OF APPEALS

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“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 commonlaw 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).
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶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 
OHIO FIRST DISTRICT COURT OF APPEALS

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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 
OHIO FIRST DISTRICT COURT OF APPEALS

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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. 
OHIO FIRST DISTRICT COURT OF APPEALS

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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. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶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. 
OHIO FIRST DISTRICT COURT OF APPEALS

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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.
OHIO FIRST DISTRICT COURT OF APPEALS

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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.