IN THE SUPREME COURT OF OHIO

Wells Fargo Bank, N.A.,

Appellee,

-vs-

Ernest Smith, Jr., et al.,

Appellants.

On Appeal from theFranklin County Courtof Appeals, TenthAppellate District

Court of AppealsCase No. 09AP-559

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANTS, ERNEST SMITH, JR., MARY TURNER,JOHN TURNER, SR. AND EYVONNE SMITH

Marcell Rose Anthony, J.D., LL.M. (0026115)Law Offices of Marcell Rose Anthony, LLC233 South High Street, Suite 300Columbus, Ohio 43215Phone: (614) 220-9081Fax: (614) 461-0000E-Mail: Marrose50 aol.comAttorney for Appellants

Scott A. King, Esq. (0037582)

Jason Bichsel, Esq. (0084204)

Thompson Hine LLP2000 Courthouse Plaza N.E.P.O. Box 8801Phone: (937) 443-6560Fax: (937) 443-6635E-Mail: Scott.KinB@ThomspnNine.com

Jason.Bichsel@ThompsonHine.comAttorneys for Appellee

TABLE OF CONTENTSPage

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION ........................

STATEMENT OF THE CASE AND FACTS .................................................................................... 5

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ........................................................... 6

Proposition of Law No. I: Rule 60(B) provides an option to appeal, iftimely filed, and the application of Doe by Trumbull, supra, to a timelyfiled Rule 60(B) Motion to Vacate a Summary Judgment abrogatesRule 60(B), and is a denial of due process and equal protection under theFourteenth Amendment to the U.S. Constitution ...................................................... 6

Proposition of Law No. II: The Court of Appeals should have decidedthe Rule 60(B) Assignments of Error on the merits, and remanded thecase to the trial court .................................................................................................... 9

Proposition of Law No. III: Appellants satisfied Rule 60(B), O.R.C.P., andThe Summary Judgment Decree in Foreclosure should have been vacated......... 10

CONCLUSION ................................................................................................................................ 11

CERTIFICATE OF SERVICE ............................................................................................................. 12

APPENDIX:

Opinion of the Franklin County Court of Appeals (December 15, 2009) ................... 13Judgment Entry of the Franklin County Court of Appeals (December 15, 2009)..... 21Trial Court's Summary Judgment Entry and Decree in Foreclosure

(January 26, 2009) ................................................................................................. 22

Magistrate's Decision on Defendants' Motion for Relief from Judgment(April 16, 2009) ...................................................................................................... 28

Decision Adopting the Magistrate's Decision Filed April 16, 2009 (April 21, 2009)..32Magistrate's Response to Defendants' Request for Findings of Fact and

Conclusions of Law (May 13, 2009) ........................................................................33Decisions of trial court on Magistrate's Findings (June 2, 2009) .....................................36

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST AND INVOLVES A SUBSTAN-

TIAL CONSTITUTIONAL QUESTION

This ia a foreclosure case where the four Appellants, through Appellant,

Eyvonne Smith, paid all monthly mortgage payments in 2006 and up to October 2007,

to Appellee, Wells Fargo Bank, N.A. In October and November 2007, Eyvonne

Smith mailed her checks to the Bank which were subsequently returned because

according to the Bank-Appellee, they were "not certified," although Eyvonne

Smith had always mailed her checks uncertified and they were automatically

electronically deducted from her bank's checking account. Foreclosure complaint

was filed in November 2007, before the Appellants received notice from the Bank

that their October and November 2007 checks were being returned.

Eyvonne Smith attempted to contact Appellee on numerous occasions,

but the Bank would not speak with her. Even during the litigation of the foreclosure

action, present counsel requested the Bank to provide information on exactly

which months were in default and in what amounts, and received no response.

The Appellee-Bank filed an Amended Motion for Summary Judgment, with an

Affidavit attaching illegible documents. Appellants filed a Memorandum Contra,

with an Affidavit and two charts reflecting that all payments were made in

2006 and up to October 2007, plus the two tendered checks in October and November 2007.

Redacted bank statements of Eyvonne Smith were also attached from January 2007 to

September 2007, reflecting electronic deductions from her account for the note and mortgage.

According to Judge Lynch's lawclerk, after briefing the Bank submitted a Judgment Entry

1

on its Amended Motion for Summary Judgment which was provided to Judge Lynch,

and which Judge Lynch signed, presumably without reading the file.

The Summary Judgment did not discuss any law, but merely reiterated

the Amended Motion for Summary Judgment, which also did not cite law.

Appellants filed a timely Rule 60(B) Motion to Vacate the Summary

Judgment, and a hearing was held. At the hearing, evidence was submitted

by Appellants as to Appellee's fraud, indeed fraud on the Court, racial discrimination

by Appellee as to Appellants, all African-Americans, which comported with a class action

against Appellee brought by The NAACP before the Rule 60(B) hearing.

Also, new evidence, a third chart, a second affidavit, and Eyvonne Smith's

unredacted bank records since inception of the loan were admitted. Eyvonne

Smith testified and was unsuccessfully cross-examined by the Bank. The Bank-Appellee

submitted no witnesses.

The Magistrate came down with a Decision, denying the Rule 60(B) Motion on

grounds that Appellants should have appealed the Summary Judgment citing Doe v. Trumbull

Cty. Children Servs. Bd., 28 Ohio St. 3d 128 (1986), which the trial court adopted, despite

Objections.

This case is of public importance for four reasons:

First of all, a timely Rule 60(B) Motion to Vacate the Summary Judgment

was filed and comported with Rule 60(B), O.R.C.P., unlike Doe v. Trumbull, supra,

where the Ohio Supreme Court held that that untimely Rule 60(B) Motion was

no substitute for an appeal where grounds were change in law.

2

There must be some clarity to the public and bar that every Rule 60(B)

motion to vacate will be scrutinized to determine if an appeal could have been

filed, and if so, then the Rule 60(B) motion to vacate will be denied on its face

without regard to the merits.

Second, to so hold would place an undue burden on trial courts which

through Rule 60(B) motions to vacate are provided an opportunity to correct

their mistakes, without a costly appeal. Indeed, most poor litigants choose

a Rule 60(B) motion to vacate rather than an appeal because it is less expensive.

Third, the Court of Appeals ruling essentially takes out of the ambit of

Rule 60(B) final summary judgments, whether on mistake or fraud of a party or

the court on mistake or fraud of the party. For summary judgments, Rule 60(B)

can only be invoked then, when an appeal of the summary judgment was possible,

on grounds of new evidence, which was true in this case as well, Is it not true,

that every final judgment can be appealed, but there is an option of timely filing a

Rule 60(B) motion to vacate in lieu of an appeal. To preclude otherwise,

would sabotage Rule 60(B) itself and its intended remedial reach. Doe v. Trumbull, supra,

gave no indication that it would be applied to timely filed Rule 60(B) motions to vacate

where appeal was an option.

Fourth, this is a foreclosure action, a harsh remedy for default in payments.

The trial court judges in Franklin County, Ohio have about two hundred each assigned

to them, and it goes without saying that the vast majority of those foreclosure

actions have no defenses to an alleged default in payments and are disposed of

3

tor Summary Judgment, and those attachments were illegible as was pointed out

in trial court and appellate briefing.

The Court of Appeals, in addition to Doe v. Trumbull, supra, also cited its

own case of Citimortgage, Inc. v. Clardy, 2007 Ohio 2940, for the proposition that a

Rule 60(B) motion may not be based on arguments that could have been raised on

appeal. However, the Rule 60(B) motion in Citimortgage., Inc. v. Clardy, supra,

was untimely and the appellant in that case was attempting to substitute an

untimely Rule 60(B) motion for an appeal.

The Court of Appeals attempts to distinguish Miller v. Ohio Dept. of Transp.,

(10`h District), 2003 Ohio 4681 where by way of dictum the Tenth Appellate

District stated that there are two options: either appeal or file a Rule 60(B) motion.

The Miller case also involved an untimely Rule 60(B) motion.

The Court of Appeals did not rule on Appellants' Assignments of Error Nos.

II and III, which went to the merits. Presumably, the Court of Appeals rendered

those Assignments of Error moot after it ruled on Assignments of Error No. i.

Against this background, Appellants will proceed to their Argument on the

Propositions of Law.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. I: Rule 60(B) provides an option to appeal, if timely

filed, and the application of Doe v. Trumbull, supra, to a timely filed Rule 60(B)Motion to Vacate a Summary Judgment abrogates Rule 60(B), and is a denialof due process and equal protection under the Fourteenth Amendment to theU.S. Constitution.

6

Rule 60(B) is a remedial rule to be liberally construed. Where a movant

files a timely Rule 60(B) Motion to Vacate a Summary Judgment, and asserts a meritorious

defense, any remaining doubt should be resolved in favor of the motion to set aside the

judgment so that the case may be decided on the merits. Compare, Colley v. Bazell,

64 Ohio St. 2d 243 (1980). Even the Tenth Appellate District in Miller v. Ohio Dept.

of Transp., 2003 Ohio 4681 (2003) stated by way of dictum that a litigant had two

options: either appeal or file a timely Rule 60(B) motion to vacate. To rule otherwise

would abrogate Rule 60(B) and limit its reach to non-appealable summary judgments, except

for new evidence or fraud on the court, two other reason which were evidenced at

Appellants' Rule 60(B) hearing, falling squarely within Rule 60(B), O.R.C.P.

By applying Doe v. Trumbull, supra, to exclude a timely Rule 60(B) motion

to vacate a final summary judgment, Rule 60(B) as applied to the case at bar,

denied due process and equal protection based upon race as guaranteed under

the Fourteenth Amendment to the U.S. Constitution. The Court of Appeals

also cited, Citimortgage, Inc. v. Clardy, 2007 Ohio 2940, a foreclosure case where the

Rule 60(B) motion was also untimely, unlike the case at bar. Foreclosure is akin to

the taking of property as in eminent domain, and requires a constitutional due process

and equal protection review. See for example, Zelman v. Simmons-Harris,

536 U.S. 639 (2002) and Monterey v. DelMonte Dunes at Monterey, 526 U.S. 687

(1987). Appellants submit that for equal protection, the legitimacy of the foreclosure

action is at issue when payments were made or tendered, and the fairness of the

foreclosure procedures and Rule 60(B) must be examined.

7

of Rule 60(B) at the outset. For the Bank, and then the Court of Appeals, to

cite Doe v. Trumbull as excluding the option of a Rule 60(B) motion for a final

summary judgment which could have been appealed, is a denial of due process and

equal protection as guaranteed by the Fourteenth Amendment of the U.S. Constitution.

Accordingly, the Court of Appeals Decision should be overruled, and the

case remanded to the trial court.

Proposition of Law No. II: The Court of Appeals should have decided theRule 60(B) Assignments of Error on the merits, and remanded the case to thetrial court.

As argued, there were other reasons for Appellants' Rule 60(B) motion,

namely racial discrimination by Appellee, fraud, fraud on the court, and new

evidence in the form of an additional chart and unredacted bank statements

of Eyvonne Smith since the loan's inception, reflecting automatic electronic

withdrawals from her bank account to Appellee in 2006 and 2007 up to

October 2007, which reasons came to bear at the hearing on the Rule 60(B)

Motion, without objection from Appellee. The hearing was transcribed, and is of record.

Although factually different, the U.S. Supreme Court case of Horn

v. Flores, 129 S. Ct. _(2009), is both instructive and persuasive. In Horn,

supra, a 2000 Declaratory Judgment against government defendants was never

appealed. Seven years later, intervening defendants filed a Rule 60(b), F.R.C.P.

motion to vacate the 2000 declaratory judgment. The U.S. Court of Appeals

for the Ninth Circuit, emphasized that there should have been a direct appeal,

but decided the Rule 60(B) denial on a limited basis due to the fact that there

9

had been no appeal of the 2000 Declaratory Judgment. The U.S. Supreme

Court reversed the Court of Appeals, and decided appealable issues as well

as the Rule 60(b), F.R.C.P. motion on the merits in the interest of justice, and

remanded the case for actions consistent with its Opinion.

So too, the Court of Appeals should have considered other reasons

For Appellants' Rule 60(B) which were proven at the hearing, namely,

fraud on the court, fraud, racial discrimination by Appellee, which were not

appealable.

Even if appealable, the Court of Appeals should have decided

Appellants' Assignments of Errors Nos. II and III on the merits, as did the U.S. Supreme

Court did by deciding appealable issues and Rule 60(b), F.R.C.P. on the merits, then

remanding the case in Horn v. Flores, supra. The Magistrate ruled that Rule 60(B)(5)

reason of injustice was apparent except for "hard evidence" of payments.

For the foregoing reasons, the Court of Appeals decision should be

reversed, and the cause remanded to the trial court for a decision on the merits.

Proposition of Law No. III: Appellants satisfied Rule 60(B), O.R.C.P., andthe Summary Judgment Decree in Foreclosure should have been vacated.

Appellants satisfied the requirements of Rule 60(B) as confirmed in Newark

Orthopedics, Inc. v. Brock, 92 O. App. 3d 117 (Tenth App. Dist. 1994), and GTE Automatic

Elec. V. ARC Industries, 47 Ohio St. 2d 146 (1976). Upon a request to provide

Findings of Fact and Conclusions of Law, the Magistrate stated that Appellants

did not provide "hard evidence" such as receipts. However, there were

10

three charts reflecting payments tied to the Eyvonne Smith's bank registration numbers,

and the unredacted bank statements of Eyvonne Smith since inception of the loan by

Appellee reflecting all payments in 2006 and up to October 2007. The submitted

checks of Eyvonne Smith for October and November 2007, which were returned

to her after the filing of the foreclosure action because those checks were "not

certified" were also part of the hearing record.

Essentially, there are no "receipts" provided by this Appellee for the

mortgage payments. The best evidence was the unredacted or redacted

bank statements of Eyvonne Smith reflecting automatic electronic deductions

for the mortgage payments to Appellee-Bank. There were no cancelled checks

since the Appellee-Bank automatically electronically deducted payments from

Eyvonne Smith's bank account.

Appellants had demonstrated that there was no default, that Appellee

made a mistake, that Appellee committed a fraud, indeed, fraud upon the

Court, and Appellee racially discriminated against Appellants.

For the foregoing reasons, the Rule 60(B) motion should be granted, and

the Summary Judgment Decree in Foreclosure should be vacated, and the

case remanded for a trial.

CONCLUSION

For the reasons discussed, Appellants have demonstrated that this case

11

involves matters of public and great general interest and a substantial constitutional

question. The Appellants request that this Honorable Court grant jurisdiction and

allow the case so that the important issues in this case will be reviewed on the

merits.

Respectfully submitted,

Marcell Rose Anthony, J.D., LL.M. (0026115)Law Offices of Marcell Rose Anthony, LLC233 South High Street, Suite 300Columbus, Ohio 43215Phone: (614) 220-9081

Fax: (614) 461-0000

E-Mail: Marrose50(@aol.comAttorney for Appellants

CERTIFICATE OF SERVICE

I, Marcell Anthony, hereby certify that a copy of the foregoing was served by regularUS mail on Scott A. King and Jason Bischsel, Esqs., Thompson Hine LLP, 2000 CourthousePlaza N.E., P.O. Box 8801, Dayton, Ohio 45401-8801, by regular US mail on this ^ day ofJanuary 2010.

Marcell Anthony

12

20653 - C2

Wells Fargo Bank, N.A.,

-f; C4, ky n 6hFIt.ED

COUiti' t<'1: APP^ALSNID

IN THE COURT OF APPEALS OF OWDEC {5 PC112r IJ }

TENTH APPELLATE DISTRICT CLERK OF COuRTS

Plaintiff-Appellee,

V.

Emest Smith, Jr., et al.,

Defendants-Appellants.

No.09AP-559(C.P.C. No. 07CVE11-15559)

(REGULAR CALENDAR)

D E C I S 1 O N

Rendered on December 15, 2009

Thompson Nine LLP, Scott A. King, and Jason P. Bichsel, forappellee.

Law Offices of Man:elt Rose Anthony, LLC, and Mar+cell RoseAnthony, for appellants.

APPEAL from the Franklin County Court of Common Pleas.

SADLER, J.

t11t} Appellants, Emest Smith, Jr., John Tumer, Sr., Eyvonne Smith, and Mary

Tumer (collectively "appellants"), filed this appeal seeking reversal of a judgment by the

Franklin County Court of Common Pleas denying their motion for relief from judgment

filed pursuant to Civ. R. 60(B). For the reasons that follow, we afFrm.

f-3

20653 ® C3

No. 09AP-559 2

112j Appeiiee, Wells Fargo Bank, N.A. ("appeiiee"), filed this acdon seeking

foreclosure of a mortgage secured by real property in Canal Winchester. The complaint

stated that the note secured by the mortgage was in the names of Ernest Smifh, Jr., and

John Turner, Sr., with Eyvonne Smith and Mary Turner being named as other parties who

may have an interest in the property. The complaint named as other defendants who

might have an interest In the property the Frankiin County Treasurer, the Lehman Estates

Homeowners Association, and the Ohio Department of Taxation. The homeowners

association filed an answer and cross-claim against appellants, and the Franklin County

Treasurer fiied an answer. Appellants filed an answer, which they subsequently

amended to assert a counterclaim against appellee asserting claims for abuse of process,

intentional or negiigent misrepresentation, and bad faith.

{93) Appellee filed an amended motion for summary judgment seeking judgment

on its complaint and on appettants' counterclaim. The motton included evidentiary

materials supporting the motion, including an affidavit by one of appeitee's empioyees

setting forlh the defauft on the mortgage and the amount owed. Appellants filed a

memorandum contra, which included appeiiants' own evidentiary materiais, including

affidavits asserting that payments had been tendered for the mortgage. Appellee filed a

reply memorandum.

;14} On January 26, 2009, the trial court issued an entry granting appeiiee's

motion for summary judgment on its foreGosure claim and on appellants' counterclaim.

The entry stated that it was a final appealable order, and included language that there

was no just cause for delay. Appellants did not file a notice of appeal regarding this entry.

20653 - C4

No. 09AP-559 3

{15) On February 11, 2009, appellants filed a Civ.R. 60(B) motion seeking

vacation of the January 22, 2009 entry. The motion alteged as grounds for relief that the

trial court had made a mistake of fact or law and that the judgment had been obtained by

fraud. The mot+on further alleged that a meritorious defense existed in that payment for

the mortgage had been tendered by appellants and impropedy refused by appellee.

{f6} The trial court referred the Civ.R. 60(8) motion to a magistrate for a hearing.

The magistrate conducted that hearing on April 13, 2009. Eyvonne Smith testified at the

hearing regarding attempts she had made to tender payment for the mortgage during the

years 2006 and 2007, which she testified were refused by appellee because they were

not made by certified check. The hear+ng also included testimony regarding a class

action lawsuit filed in federal court against appeilee by the National Association for the

Advancement of Colored People on behalf of African Americans, asserting vioiations of

the Fair Housing Act, the Equal Credit Opportunity Act, and the Civil Rights Act.

(17} Subsequently, the magistrate issued a decision denying appellants' Civ.R.

60(B) motion. The magistrate concluded that the trial courYs January 26, 2009 entry was

a final judgment, and that appellants were improperly using Civ.R. 60(B) as a means to

challenge the correctness of that judgment, rather than raising a challenge by way of

direct appeal. Appellants filed objections to the magistrate's decision, disagnseing with

the magistrate's conclusions that the January 26, 2009 entry was a final appealable order

and that Civ.R. 60(B) cannot be used as a replacement for a direct appeal. The trial court

overruled appellants' ob)ections to the magistrate's decision and adopted the magistrate's

decision as its own.

(18) Appellants then filed this appeal, and assert three assignments of error:

20653 - C5

No. 09AP,559 4

1. WHETHER THE COURT ERRED WHEN IT PRECLUDEDAPPELLANTS' RULE 60(B) MOTION BASED UPON DOE V.TRUMBULL M. CHILDREN SERVICES SD. AS AMATTER OF LAW, AND FURTHER WHETHER THERE IS ADENIAL OF DUE PROCESS AND EQUAL PROTECTIONBASED UPON RACE BY PRECLUDING APPELLANTS'RULE 60(B) MOTION AS A MATTER OF LAW.

tl. WHETHER APPELLANTS SATISFIED THEREQUIREMENTS OF A RULE 60(B) MOTION ANDWHETHER THE COURT ERRED IN ITS FINDINGS OFFACT AND CONCLUSIONS OF LAW BY REQUIRINGHARD EVIDENCE OF PAYMENTS SUCH AS RECEIPTSWHEN THE BANK STATEMENTS, CHARTS, EXHIBITSAND TESTIMONY WERE GOOD, RELIABLE ANDPROBATIVE SUFFICIENT EVIDENCE.

111. WHETHER THE COURT ERRED BY NOT VACATINGTHE SUMMARY JUDGMENT GRANTED TO APPELLEEBANK AND OTHERWISE ORDERING A TRIAL, AND BY SOFAILING, THE COURT DENIED APPELLANTS DUEPROCESS AND EQUAL PROTECTION BASED UPONRACE AS GUARANTEED BY THE FOURTEENTHAMENDMENT TO THE U.S. CONSTITUTION.

M4} Appellants' assignments of error are interrelated, and will therefore be

addressed together. The trial court did not conduct the analysis generally applied to

Civ.R. 60(8) motions, but instead concluded that appellants' Civ.R. 60(B) motion was

being used improperiy as a substitute for a direct appeal. The trial aourt cited Doe v.

Trumbull Cty. Children Servs. Bd. (1986), 28 Ohio St.3d 128, for this proposition.

Appellants argue that Doe is distinguishable, arguing that that case involved a CIv.R.

60(B) mation that was both unttmeiy, and failed to satisfy the requirements for Civ.R.

60(B). Instead, appellants point to our decision In Miller v. Ohio Dept of Transp., 10th

Dist. No. 02AP-1035, 2003-Ohio-4681, to argue that a Civ.R. 60(B) motion is always an

alternative to a direct appeal.

i4-)

20653 - C7

No. 09AP-559 6

Kamofel v. Grrard Police Dept., 11th Dist. No. 2009-T-0045, 2009-Ohio-4446. The

reason behind this prinaple is that it is the function of the appellate courts to correct legal

errors committed by the trial court. Elliott v. Smead Mfg. Co., 4th Dist. No.

OBCA13/08AP13, 2009-Ohio-3754. A party moving for relief from a judgment pursuant to

Civ.R. 60(B) must allege new grounds for relief, rather than use the arguments it lost

under the judgment as the basis for relief. Elyria Twp. Bd. of Trustees v. Kerstefter

(1993), 91 Ohio App.3d 599.

M12) In this case, both at,tle trial court and on appeal, the basis for appellants'

Civ.R. 60(8) motion is their argument that the trial court erred when it granted appellee's

mofion for summary judgment Appellants argued that Civ.R. 6U(B) relief was appropriate

on the grounds of mistake and fraud; however, the arguments set forth in support of the

claims of mistake and fraud are a repeti6on of the arguments set forth in their

memorandum contra appellee's motion for summary judgment. AppeNants argue

extensively about the evidentiary materials attached to their memorandum contra

appellee's motion far summary judgment, which they claim show that payments had been

tendered to and improperiy rejected by appellee. Theretore, appellants' use of Civ.R.

60(B) was nothing more than an attempt to reargue the merits of the summary judgment

motion and not a proper use of Civ.R. 60(B). Thus, the trial court correctiy concluded that

appellants were improperiy using Civ.R. 60(B) as a substkute for a direct appeal.

(113) Appellants attempt to distinguish this case from the cases holding that

Civ.R. 60(B) cannot be used as a substRute for a direct appeal because those cases

invoived situations where the time for direct appeal had passed, and the parties were

attempting to avoid the effect of the appeai time passing by filing Civ.R. 60(B) motions.

I^

20653 - C8

No. O9AP-559 7

Appellants are correct that their Civ.R. 60(B) motion was filed prior to the expiration of the

time during which a direct appeal could have been filed. However, in our view, the logic

behind requiring the filing of a direct appeal to address errors in the trial courts reasoning,

rather than using Civ.R. 60(B) to addres such errors, applies regardless of when the

Civ.R. 60(8) motion was filed, because it remains the function of the appellate courts to

correct errors such as those alleged by appellants as the basis for their motion far relief

from judgment.

{9114) Appellants further argue that they were not required to fife a direct appeal,

because the trial courPs decision was not a final appealable order. Appellants correctly

point out that the decision on appellee's motion for summary judgment disposed of

appetlee's claims and appellants' counterclaim, but did not dispose of the cross-claim filed

by the homeowner's association. However, the court expressly stated in its entry granting

summary judgment that there was no just cause for delay, thereby making the entry a

final appealable order. Civ.R. 64(B).

(1741 Finally, appellants argue that the trial court's refusal to allow the use of a

Civ.R. 80(B) motion constitutes a violation of the due process and equal protection

provisions of the United States Constitution. Appellants cite Home v. Ftores (2009), _

U.S. _, 129 S.Ct. 2579. That case involved an application of a provision in

Fed.R.Civ.P. 60(b)(5) that allows for vacation of a judgment that is based on an eariier

judgment that has been vacated or reversed. The case does not support appellants'

contention that the trial court's application of the law goveming Civ.R. 60(B) somehow

violated appe4tants' constitutional rights. We note that in their assignments of error,

appellants suggest that the tdal courts application of the law goveming Civ.R. 60(B) was

20653 - C9

No. 09AP-559 8

somehow motivated by racial discrimination, afthough they do not specifically argue this in

their brief. We fail to discam how the trial courrs decision could in any way be

characterized as being motivated by racial discrimination.

(¶lG) Appellants' three assignments of error are overruled. Having overruled

appellants' assignments of error, we affirm the judgment of the Franklin County Court of

Common Pleas.

Judgme»t affimred.

TYACK and KLINE, JJ., concur.

KL1NE, J., of the Fourth Appellate District, sitting byassignment in the Tenth Appellate District.

1 A20653 - C48

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Wells Fargo Bank, N.A.,

Plaintiff-Appe{lee,

V.

Ernest Smith, Jr., et ai.,

Defendants-Appellants.

, F'lLEi3

319 aEC 15 AH 12. U9

CZEf'in CpURTS

No. 09AP-559(C.P.C. No. 07CVE11-15559)

(REGULAR CALENDAR)

JUDGMENT ENTRY

For the reasons stated in the decision of this court rendered herein on

December 15, 2009, appellants' assignments of error are overruled, and it is the

judgment and order of this court that the judgment of the Franklin County Court of

Common Pleas is affirmed. Costs shall be assessed against appellants.

SADLER, TYACK, and KLINE, JJ.

Judge isa L. Sadler

KLINE, J., of the Fourth Appeliate District, sitting byassignment in the Tenth Appellate District.

200749831(cfischer)

COURT OF COMMON PLF.ASFRANKLIN COUNTY, OHIO

Wells Fargo Bank, N.A. Case No. o7CVE 11 i55sA

Plaintiff, Judge Julie Lynch

-vs-

Ernest Smith, Jr., et al.,ENTRY GRANTING JUDGMENT ANDDECREE IN FORECLOSURE TOPLAINTIFF WELLS FARGO BANK,

Defendants. ; N.A. AND GRANTING JUDGMENT TOPLAINTIFF ON DEFENDANTS'COUNTERCLAIMS

This matter is before the Courl on the Amended Motion for Summary Judgment

and Affidavit in Support of the Plaintiff, to obtain judgment upon the Note as described in

the Complaint and to obtain judgment on Defendants' counterclaims; and to foreclose the

lien of the Mortgage securing the obligation of such Note upon the real estate described

herein; and to require all parties to set up their claims to the real estate or be barred.

Defendants, Ernest Smith, Jr., John M. Turner, Sr., Eyvonne W.J. Smith, and Mary K.

Turner, have filed a Memorandum Contra Plaintiffs Amended Motion for Summaty

Judgment as well as an Affidavit in Support. Plaintiff filed a Reply Memorandum.

Having reviewed all of the evidence before it, the Court finds that all necessaiy

parties have been properly served, are properly before the Court, and that the defendant,

State of Ohio, Department of Taxation is in default of Motion or Answer. 1'laintiff has filed

a Motion for Default Judgment against defendant, State of Ohio, Department of Taxation,

to which no response has becn filed.

The Court finds that the defendants, Ernest Smith, Jr., John M. Turner, Sr.,

Eyvonne W.J. Smith and Mary K. 'I.trner, filed an Answer and Counterclaim in response

to the plaintiffs Complaint. Upon consideration of the evidence, the Court finds no

genuine issue as to any material fact and that plaintiff is entitled to a Judgment and

Decree in Foreclosure as a matter of law on the Plaintiffs Complaint and upon

Defendants' Counterclaims.

The Court finds that the allegations contained in the Complaint are true and that

there is due and owing to the plaintiff, from the defendants, Ernest Smith, Jr. and John M.

Turner, Sr., jointly and severally, upon the subject Note the principal balance of

$158,050.25, for which amount judgment is hereby rendered in favor of the plaintiff, with

interest at the rate of 6.2500 percent per annum from June 1, 2007, together with

advances for taxes, insurance and other amounts expended, plus costs.

The Court finds that the Note is secured by the Mortgage held by the plaintiff, which

mortgage constitutes a valid and first lien upon the following described preniises:

See Exhibit "A"

The Court finds that the Mortgage was filed for record in Mortgage Volume

Instrument No. 2004o6100134546, of this County's Recorder's Office; that the conditions

of said Mortgage have been broken and plaintiff is entitled to have the equily of

redemption of the defendant-titleholders foreclosed.

The Court finds that the defendant, Lehman Estates Homeowners Association, has

filed an Answer and Cross-Claim herein asserting an interest in the real estate which is the

subject of this action, which interest is junior in priority to plaintiffs interest as

hereinabove set forth.

'I'he Court finds that the defendant, Franklin County Treasurer, has filed an

Answer herein asserting an interest in the real estate which is the subject of this action,

which interest is senior in priority to plaintiff s interest as hereinabove set forth.

IT IS THEREFORE, ORDERED that unless the sums hereinabove found to be due

to plaintiff, and the costs of this action, be fully paid within three (3) days from the date of

the entry of this decree, the equity of redemption of the defendant-titleholders in said real

estate shall be foreclosed and the real estate sold, free of the interests of all parties herein,

and an order of sale shall issue to the Sheriff of this County, directing him to appraise,

advertise and sell said real estate, according to law and the orders of this Court, and report

his proceedings to this Court. If the United States of America holds a lien on the real

estate, the United States of America shall have the right to redeem as provided by Title 28,

Section 2410 (C), United States Code.

IT IS FURTHER ORDERED that the Sheriff sliall send counsel for the party

requesting the Order of Sale a copy of the publication notice promptly upon its first

publication.

IT IS FURTHER ORDERED that the Sheriff, upon confirmation of said sale, shall

pay from the proceeds of said sale, upon the claims herein found, the amounts thereof in

the following order of priority:

1. 'I'o the Clerk of this Court, the costs of this action, including the fees ofappraisers.

2. 'I'o the Treasurer of this County, the taxes and assessments, due and payableas of the date of transfer of the property after Sheriffs Sale.

^:^.

3.

4-

To the plaintiff, the sum of $158,050.25, with interest at the rate of 6.2500percent per annum from June 1, 2007, together with advances for taxes,insurance and otherwise expended, phis costs.

The balance of the sale proceeds, if any, shall be paid by the Sheriff to theClerk of this Court to await further orders of this Court.

The Court further finds that there is no just reason for delay.

JUDGELYNCH

'rendered by:

^Cyiithia M. Fischer, Trial. CounselOhio Supreme Court Reg. #0073761LERNER, SAMPSON & RO'I'IIFUSSAttoi-neys for Plaititiff120 E. 4th St.; Suite 800Cincinnati, OH 45202

(513) 419-4854(513) 354-6952 (fax)Cynthia.fischer@lsrlaw.com

Copies to:

Marcell Rose Anthony, Esq.233 South High StreetSuite 300Columbus, Ohio 43215

Adria Fields, Esq.373 South High St, t7th FlrColumbus, OI-I 43215

Paul T. Saba, Esq.2623 Erie AvenueCincinnati, OH 452o8

State of Ohio, Department of Taxationc/o Ohio Attorney General Revenue Recovery15o E. Gay Street, 21st FloorColumbus, OH 43215

EXHIBIT `A'

Ti(P. STA'T}3 CF 0NIC, CATAnY OF Rw(L'th', AM SN Tt1R CI7.'Y bF C01,'Uri8Tl3 t

1600 I,6T MZR Dfm- HUtdUAPJ7 N:CNM-pNN (191) t IN twN' waN5 St1'BnmmN, SBCx'r0N3 r PttRT 7, A5 261E 3AMt ^S NUMUC.EU AID1!) DSWNf"AM UPON 2O C2OCQMIF) DS.AT if ►k'RUOV, px

RCCORD 7.N p.t,AT Pipolc .590 C'AGC 43, RNCQRI)ER'$ oPtIM, FRAUKL1N CpitNVI Ok170.

04/23/2009 08:58 FAX 614 462 6292 FCCPC MAGISTRATES rM 002

IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIOCIVIL DIVISION

WELLS FARGO BANK. N.A.,

PLAINTIFF,

vs.

ERNEST SMITH, JR., et al.,

DEFENDANTS.

CASE NO. 07CVE11-15555

JUDGE LYNCH

MAGISTRATE McCARTHY

MAGISTRATE'S DECISION O N DEFENDA TS'MOTfON FOR RELIEF FROM JUD MENT

On April 13, 2009, this matter came on for an evidentiary hearing on

defendants' motion for relief from judgment filed on February 11, 2009. Plaintiff

has opposed the motion. At the core of defendants' plea for reconsideration of the

court's money judgment and decree of foreclosure is their ongoing contention that

all necessary periodic payments have been made to plaintiff.

In the court's January 26, 2009 Entry Granting Summary Judgment and

Decree in Foreclosure, the court found, inter alia, that plaintiff was entitled to a

decree in foreclosure and order of sale as a matter of law, that a sum certain was

due and owning from two (and only two) of the defendants, and that plaintiff's

mortgage lien on the subject property was first in priority. The court further found

that there was no just reason to delay the entry of the judgment and decree of

foreclosure. There were no other non-statutorily recognized defendants whose

claims were left for future judicial resolutions-

In some foreclosure cases, issues of substance requiring further judicial

scrutiny and determination are left for consideration following the entry of a finding

04/23/2009 08:58 FAX 614 462 6292 FCCPC MAGISTRATES 10003

of liability and entitlement to the foreclosure remedy. In such cases, the initial or

preliminary determinations by the court are generally considered interlocutory

orders. See, e.g. Centex Home Equity Co., LLC v. Williams (March 5, 2007),3rd

Dist. No. 6-06-07, 2007 Ohio App- LEXIS 799; State ex rel. Montgomery v. Ohio

Cast Products, lnc. (June 26, 2000), 5th Dist. No. 1999 CA 394, 2000 Ohio App.

LEXIS 2839; BCGS, L.L.C. v. Raab (July 17, 1998), 11th Dist. No. 98-L, 1998

Ohio App. LEXIS 6584; Gaul v. Leeper (July 15, 1993), 8th Dist. No. 63222, 1993

Ohio App. LEXIS 3519; Alpine Terrace Condominium Unit Ass'n., Inc. v. Volz

(Nov. 4, 1992), 1st Dist. No. C-910852, 1992 Ohio App. LEXIS 5542.

In the instant action, however, the judgment which is the subject of

defendants' motion for relief from judgment is, in fact, a final judgment. A judgment

entry ordering a foreclosure sale and determining the amounts due the various

claimants is a final appealable order, Third National Bank of Circleville v.

Speakman (1985), 18 Ohio St. 3d 119, 120, 480 N.E.2d 411, citing Oberlin Sav.

Bank v. Fairchild (1963), 175 Ohio St. 311, 194 N.E.2d 580. In addition, the

Supreme Court of Ohio has concluded that "in a mortgage foreclosure action, a

joumalized order determining that the mortgage constitutes the first and best lien

upon the subject real estate is a judgment or final order from which an appeal may

be perfected." Queen City S. & L. Co. v. Foley (1960), 170 Ohio St. 383, 165

N.E_2d 633, paragraph one of the syllabus.

In the instant action, plaintiff opposes defendants' instant motion and raises

the issue of the availability of Civ. R. 60(B) to defendants as a method to challenge

the correctness of the judgment entered. Plaintiff maintains that a motion for relief

2

04/23/2009 08:68 FAX 614 462 6292 FCCPC MAGISTRATESLQj 004

from judgment cannot be used as a substitute for a direct appeal to a higher court.

The magistrate finds plaintiffs position to be well taken.

"A party may not use a Civ.R. 60(B) motion as a substitute for a timely

appeal." Doe v. Trumbull Cty. Children Services Bd. (1986), 28 Ohio St.3d 128, 28

Ohio B. 225, 502 N.E.2d 605, paragraph two of the syllabus. This legal principle

applies in mortgage foreclosure cases. Citimortgage, Inc. v_ Clardy, 2007 Ohio

2940, 2007 Ohio App. LEXIS 2692 (Ohio Ct. App., Franklin County, June 14,

2007); Keybank, N.A. v. Malloy, 2005 Ohio 632, 2005 Ohio App. LEXIS 642 (Ohio

Ct. App., Stark County, Feb. 14, 2005); Firstar Bank Milwaukee v. Whitmore, 2003

Ohio 1506, 2003 Ohio App. LEXIS 1436 (Ohio Ct. App., Cuyahoga County, Mar.

27, 2003); Bankers Trust Co. of Cal., N.A. v. Long, 2002 Ohio 5299, 2002 Ohio

App. LEXIS 5336 (Ohio Ct. App., Stark County, Sept. 30, 2002); Poss v. Morris,

1995 Ohio App. LEXIS 2793 (Ohio Ct. App., Ashtabula County, June 30, 1995).

Because the issues raised in the motion under consideration were or could

have been issues raised in the proceedings before the court, they are unable to be

presently raised and recognized in the guise of a motion for relief from judgment.

Accordingly, and because the magistrate is prohibited from considering or

reconsidering those issues, defendants' instant motion should be denied.

A party shall not assign as error an appeal the court's adoption of any

factual finding or legal conclusion, whether or not specifically designated as a

finding of fact or conciusion of law under Civ. R. 53(D)(3)(a)(ii), unless the party

timely and specifically objects to that factual finding or legal conclusion as required

3

04/23/2008 08:58 FAX 614 462 6292 FCCPC MAGISTRATES

by Civ. R. 53(D)(3)(b). Any party may file written objections to this decision within

fourteen days from the date this decision is filed.

Timothy P. McCarthy, MagistrateCopies to:

Cynthia M. Fisher, Esq.120 East Fourth Street, 8^h FloorCincinnati, OH 45202-4007Counsel for Plaintiff

Marcell Rose Anthony, Esq.233 S. High StreetSuite 300Columbus, OH 43215Counsel for Defendants

Amy Shelton, Magistrate's Secretary"

I0005

4

IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO

Wells Fargo Bank, N.A.,

Plaintiff',

v.

Ernest Smith Jr., et al.,

Defendants.

Case No. 07-CVE-1 1-15559

JUDGE LYNCI-I

DECISION ADOP'TING THE MAGISTRATE'S DECISION,FILED APRIL 16 2009

Rendered this ^ day of April, 2009.

LYNCH, J.

This matter is before the court regarding the decision rendered by Magistrate

McCarthy as the result of an evidentiary hearing. Magistrate McCarthy rendered a

decision and recommended that this court adopt the decision under the provisions of Civ.

R. 53 (E)(4)(C).

After consideration and review, the court adopts in full Magistrate MeCartliy's

decision of April 16, 2009, which is incorporated herein by reference.

I'I' IS S(? (?RDERED.

Copies to:

Cynthia M. Fisher, Esq.Counsel for Plaintiff

Marcell Anthony, Esq.Counsel for Defendants

ulie/lyl. Lynch, Judge

IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIOCIVIL DIVISION

WELLS FARGO BANK. N.A.,][

PLAINTIFF, 0l^

vs. ^l[

ERNEST SMITH, JR., et al., 0][

DEFENDANTS. ^

CASE NO. 07CVE11-15559

JUDGE LYNCH

MAGISTRATE McCARifHY,.,,

r7 ra ;w 'c:

MAGISTRATE'S RESPONSE TO DEFENDANTS' REQUEST FOR FINDIatGSOF FACT AND CONCLUSIONS OF LAW "'

'`_,rate sThe Magistrate's Decision filed on April 16, 2009 contains the magisf

findings of fact and conclusions of law. That decision is comprehensive and

pertinent to the issues raised. It explains the rationale for the conclusions reached

and the relevant positions and arguments of the parties. A fuller elucidation is not

required. See, Strah v. Lake County Humane Society (1993), 90 Ohio App. 3d.

822 (explaining that findings of fact and conclusions of law are not required if there

exists "a 'well-written' opinion, if that opinion, along with the remainder of the

record, forms an 'adequate basis' for determining the issues in the case.", citing

Jones v. Jones, 1990 Ohio App. LEXIS 3100 (Ohio Ct. App., Geauga County, July

27, 1990)); State v. Bush, 1999 Ohio App. LEXIS 3446 (Ohio Ct. App.,

Montgomery County, July 30, 1999), ("the magistrate's decision adequately

explained the rationale for concluding that [a statutory violation occurred]"); and

see Hurban v. Haas, 1999 Ohio App. LEXIS 6282 (Ohio Ct. App., Medina County

Dec. 29, 1999); Kelly v. Northeastern Ohio Univ. College, 2008 Ohio 4893, 2008

Ohio App. LEXIS 4104 (Ohio Ct. App., Franklin County, Sept. 25, 2008).

Nevertheless, the magistrate will attempt to explain his decision in response

to defendants' request for findings of fact and conclusions of law. This case came

on for a hearing on defendants' motion for relief from judgment on April 13, 2009.

The stated grounds for the motion were fraud, mistake and the possession of a

meritorious defense.' There was no evidence presented to go to support the

existence of fraud in this case. Likewise, there was no evidence of a qualifying

mistake presented. On the matter of a claimed meritorious defense, the defense of

payment was once again pursued.

Evidence presented on the matter of payment was more complete than had

been presented theretofore. It was, however, insufficient to (1) alter the fact that it

was the same defense that was presented and considered by the court in granting

a judgment in favor of plaintiff and (2) insufficient to convince the magistrate that

an injustice was being done that would qualify as "any other reason justifying relief

from the judgment" under Civ. R. 60(B)(5). Had the evidence been of a more

decisive nature, a finding of injustice may well have been in order. "Hard evidence"

in the form of receipts, written confirmations of disputed payments and other

weighty evidence was largely missing.

Thus, the magistrate made the conclusion of law that relief under Civ. R.

60(B)(5) was unavailable. The magistrate additionally made the obvious

conclusion of law that the same defense of payment was being attempted to be

' The notion of being possessed with a meritorious defense becomes critical only in the event of ademonstration of one of the five enumerated grounds contended in Civ. R. 60(B). If it does exist,doubts regarding whether one of the grounds set forth in Civ. R. 60(B)(1) through (5) exist shouldbe resolved in favor of the motion so that cases can be decided on the merits. Whipps v. Ryan, 08-383, Franklin County Court of Appeals, May 12, 2009, citing GTE Automatic Electric, Inc. v. ARCIndustries, Inc., 47 Ohio St.2d 146, 1976 Ohio LEXIS 682. Notwithstanding defendants' statedefforts to pursue relief from judgment on this unavailable basis, the magistrate will comment on hisfindings in this connection.

3442

pursued a second time, this time as a substitute for appeal. Thus, the findings of

the magistrate in his April 16, 2009 decision. That decision is incorporated herein

as an additional response to defendants' request for findings of fact and

conclusions of law.

A party shall not assign as error on appeal the court's adoption of any

factual finding or legal conclusion, whether or not specifically designated as a

finding of fact or conclusion of law under Civ. R. 53(D)(3)(a)(ii), unless the party

timely and specifically objects to that factual finding or legal conclusion as required

by Civ. R. 53(D)(3)(b). Any party may file written objections to this decision within

fourteen days from the date this decision is filed.

Copies to:

Cynthia M. Fisher, Esq.120 East Fourth Street, 8th FloorCincinnati, OH 45202-4007Counsel for Plaintiff

Marcell Rose Anthony, Esq.233 S. High StreetSuite 300Columbus, OH 43215Counsel for Defendants

IN THE COURT OF COM1V10N `PLEAS,FRANKhIN COUNTY, OIIIO

Wells Fargo Bank, N.A., Zvo

Plaintiff,

V.

Ernest Smith Jr., et al.,

Defendants.

1.}i" 1 GUI^i I

Case No. 07-CVE-11-15559

JUDGE LYNCII

DECISION AND ENTRY OVERRiJLING DEFENDANTS' OBJECTIONS TOTHE MAGISTRATE'S FINDINGS , FILED MAY 26 2009

and

DECISION AND ENTRY ADOPTING TI3E MAGISTRATE'S FINDINGS ,RENDERED MAY 13, 2009

Rendered this ___d- day of' June, 2009.

LYNCH, J.

This matter is before the court upon the objections of defendants to the

magistrate's findings of facts and conclusions of law. The court has considered all

memoranda submitted.

Defendants seek to vacate the default judgnlent awarded to plaintifl' on April 29,

2008. On May 13, 2009, Magistrate McCaithy rendered a finding of facts and conclusion

of law. Defendants object to that finding and filed objections pursuant to Civ. R. 53

without a transcnpt.

When reviewing objections to a magistrate's report, the cotirt is required to

undertake the equivaleiit of a de novo reviewdetermination, and independently assess the

facts and conclusions contained in the report of a referee. See DeSantis v. Sol#er, (1990)

70 Ohio App. 3d 226. The court has reviewed the magistrate's findings, the defendatits'

brief, as well as all other evidence before the court. After review of said material, the

court does not lind defendauts' position well taken. The court finds that Magistrate

McCarthy considered all relevant facts and that defendants have not presented any basis

for this court to sustain the objeetions to the extent the court should vacate the

Magistrate's decision.

Wherefore, the court hereby OVERRULES the defendants' objections and

ADOPTS Magistrate McCarthy's findings which is incorporated herein by reference.

IT IS SO ORl)ERED.

Copics to:

Cynthia M. Fislrer, Bsq.Counsel for Plaintiff

Marcell Anthony, Esq.Counsel for Defendants

2