IN THE SUPREME COURT OF OHIO

WELLS FARGO BANK, N.A. * Supreme Court Case No.

12-1558Plaintiff-Appellee * On appeal from the Champaign County

Court of Appeals, 2nd Appellate Districtvs.

TIMOTHY BRANDLE, et al. * Appeals Case 2012CA0002

Defendants-Appellants. *

NOTICE OF APPEAL OF APPELLANTS TIMOTHY AND LISA BRANDLE

MARC E. DANN (0039425) (COUNSEL OF RECORD)GRACE DOBERDRUK (0085547)DANN, DOBERDRUK & WELLEN LLC4600 Prospect AvenueCleveland, Ohio 44103(216) 373-0539 Office(216) 373-0536 Facsimilemdann@dannlaw.comgrace@dannlaw.com

CounseLfor Appellants Timothy and Lisa Brandle

SCOTT A. KING (0037582)TERRY POSEY JR. (0078292)THOMPSON HINE LLPAustin Landing I10050 Innovation Drive, Suite 400Dayton, OH 45342(937) 443-6560 Phone(937) 443-6635 FaxScott.King@ThompsonHine.comTerry.Posey@ThompsonHine.com

intiff-Annellee Well.; Faron Rank N A

Ln^LLLu`'v7 iuSEP 14 2012

CLERK oF rn)RTSUPFiF,!r."V xOtI; -! 14!t^

SEP 14 2011

SUP EMF COUR®OF ORlO

Notice of Appeal of Appellants Timothy and Lisa Brandle

Appellants Timothy and Lisa Brandle hereby give notice of appeal to the Supreme Courtof Ohio from the judgment of the Champaign County Court of Appeals, Second AppellateDistrict, entered in Court of Appeals Case No. 12CA0002 on August 3, 2012.

This case raises a substantial constitutional question and is one of public or great general interest.

Respectfully submitted,

COUNSEL FOR APPELLANTS,TIMOTHY AND LISA BRANDLE

Certificate of Service

I certify that a copy of this Notice of Appeal was sent by ordinary U.S. mail to counselfor appellees, Scott King and Terry Posey, Thompson Hine LLP ustin Landing I, 10050Innovation Drive, Suite 400, Dayton, OH 45342 on Sept9.*2012.

Marc E. Dann

COUNSEL FOR APPELLANTSTIMOTHY AND LISA BRANDLE

CHAMPAIGN CQUNSY OHIO

AUG fi 2012

C ^^^CLERK OF GOUfff OF APPIALS

PENNY S. UNDERWOODCHAMPAIGN COUNTY CLERK OF COURTS

200 N. MAIN ST.URBANA, OHIO 43078

TO: GRACE M DOBERDRUK20521 CHAGRIN BLVDSUITE DSHAKER HEIGHTS, OH 44122

NOTICE OF FILINGWELLS FARGO BANK

PLAINTIFF-APPELLEEvS.

TIMOTHY BRANDLE, ET AL.,DEFENDANT-APPELLANT

CASE NO. 2012 CA 00002

You are hereby notified that on AUGUST 6, 2012, SECOND DISTRICT COURT

OF APPEALS filed FINAL ENTRY into the CHAMPAIGN COUNTY COURT OF

COMMON PLEAS.

Sincerely,

PENNY S. UNDERWOODClerk of Courts

f` i 1 =t

CC: SCOTT A KING

IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO

WELLS FARGO BANK, N.A,

Plaintiff=Appellee C.A. CASE NO. 2012CA0002

vs. T.C. CASE NO. 1oCV336

TIMOTHY BRANDLE, et al. . FINAL ENTRY

.Defendants-Appellants

Pursuant to the opinion of this court rendered on the 3rd

day of August 7 2012, the judgment of the trial court i.s

Affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), it is ordered that the Clerk

of the Champaign County Court of Appeals shall immediately serve

notice of this judgment upon all parties and make note in the

docket of the mailing.

MIKE FAIN, JUDGE

NG JUDGE

PENk-LCJBrE R.'/CUNNINGHAM/JUDGEBY ASSIG__Mp!NTT

(Hon. Penelope R. Cunningham/ First Dirict Court of Appeals,sitting by assignment of the Chief Justice of the Supreme Court

of Ohio.)

THE COURT OF APPEALS OF OHIOavrnun APPT:.i.T.ATR nrs'rurCT

Copies mailed to:

Scott A. King, Esq.Terry W. Posey, Jr. Esq.Austin Landing I10050 innovation Dr., Ste 400Dayton, OH 45342

Marc E. Dann, Esq.Grace Doberdruk, Esq.20521 Chagrin Blvd., Ste DShaker Heights, OH 44122

Hon. Roger B. WilsonChampaign County Common Pleas Court200 North Main StreetUrbana, OH 43078

TTiE COURT OF APPEALS OF OHIOSF.CnNn APPELLATE DISTRICT

IN THE COURT OF APPE,A,LS OF CHAMPAIGN COUNTY, OHIO

WELLS FARGO BANK, N.A,

Plaintiff-Appellee . C.A. CASE,NO. 2012CA0002

vs. T.C. CASE NO. 10CV336

TIMOTHY BRANDLE, et al. (Civil Appeal from

Defendarits-AppellantsCommon Pleas Court)

O P I N I O N

Rendered on the 3"' day of August, 2012.

Scott A. King, Atty. Reg. No. 0037582; Terry W. Posey, Jr., Atty.Reg. No. 0078292, Austin Landing I, 10050 Innovation Drive, Suite400, Dayton, OH 45342

Attorneys for Plaintiff-Appellee

Marc E. Dann, Atty. Reg. No. 0039425; Grace Doberdruk, Atty. Reg.No. 0085547, 20521 Chagrin Blvd., Suite D, Shaker Heights, OH44122

Attorneys for Defendants-Appellants

GRADY, P.J.:

{$ 11 Defendants Timothy and Lisa Brandle appeal from an

order denying their Civ.R. 60(B) (3) motion to vacate a final

judgment of foreclosure.

{$ 2} On October 22, 2010, Plaintiff Wells Fargo Bank, N.A.

("Wells Fargo") commenced an action in foreclosure against the

Brandles. The lender and mortgagee identified in the note and

the mortgage attached to the complaint was Washington Mutual

THE COURT OF APPEALS OF OHIOcuOntvn AnnRT r n^r. nrc^nrr-r

2

Bank, FA. Also attached to Wells Fargo's complaint was a copy of

a purported assignment of mortgage from Washington Mutual Bank to

Wells Fargo.

{$ 3} The Brandles failed to file a timely responsive

pleading, and on September 6, 2011, Wells Fargo filed a motion

for default judgment. The Brandles did not respond to the motion

for default judgment. The trial court set an October 3, 2011

hearing on the motion for default judgment. The trial court

stated, in part, "If Defendants fail to appear for the hearing,

the Court expects to grant the motion." (Dkt. 23.)

{9[ 41 On October 25, 2011, the trial court granted Wells

Fargo's motion for default judgment and entered a judgment and

decree in foreclosure in favor of Wells Fargo. The trial court

noted that the Brandles did not appear for the default judgment

hearing. The Brandles did not file a notice of appeal from the

October 25, 2011 judgment.

{g 51 Approximately seven weeks later, on Deeember 19, 2011,

the Brandles filed a Civ.R. 60(B) (3) motion to vacate the

judgment and decree of foreclosure. The Brandles argued that

they had a meritorious defense to foreclosure and were entitled

to relief from judgment because' Wells Fargo does not own their

note and mortgage. According to the Brandles, Wells Fargo was

therefore not the real party in interest and lacked standing,

rendering the judgment in foreclosure void. The Brandles also

argued that the alleged defect was a fraud on the court. Civ.R.

60(B)(3).

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRTCT

3

{9[ 61 On December 29, 2011, the trial court denied the

Brandles' Civ.R. 60(B) motion. The trial court found that Wells

Fargo was entitled to bring the foreclosure action, the Brandles

waived the real party in interest defense by failing to timely

assert it, and the Brandles failed to file their Civ.R. 60(B)

motion within a reasonable time.

{9[ 71 The Brandles filed a notice of appeal, raising the

following two assignments of error.

{9[ 8} First Assignment of Error:

{9[ 91 "IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO

DENY APPELLANTS' 60(B) MOTION TO VACATE WITHOUT HOLDING A

HEARING."

{9( 101 The standard of review of a trial court's decision on

a Civ. R. 60(B) motion is the abuse of discretion standard.

Aurora Zoan Services, LLC v. Wilcox, 2d Dist. Miami No. 2009 CA

9, 2009-Ohio-4577, at $16, citing Griffey v. Rajan, 33 Ohio St.3d

75, 77, 514 N.E.2d 1122 (1987). In AAAA Enterprises, Inc v.

River Place Community Urban Redeve.Zopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990), the Supreme Court held:

"Abuse of discretion" has been defined as an

attitude that is unreasonable, arbitrary or

unconscionable. Huffman v. Hair Surgeon, Inc. (1985),

19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248,

1252. It is to be expected that most instances of

abuse of discretion will result in decisions that are

simply unreasonable, rather than decisions that are

THE COURT OF APPEALS OF OHIO4ECnNn APPRI.T.ATR T)TCTRT(:T

unconscionable or arbitrary.

A decision is unreasonable if there is no sound

reasoning process that would support that decision. it

is not enough that the teviewing court, were it

deciding the issue de novo, would not have found that

reasoning process to be persuasive, perhaps in view of

countervailing reasoning processes.that would support

a contrary xesult.

{9[ 11) In GTE Automatic Elee., Inc. v. ARC Industxzes, Inc.,

47 Ohio St.2d 146, 150, 351 N.E.2d 113 (1976)(citations omitted),

the Supreme Court held:

To prevail on [a] motion under Civ.R. 60(B), the

movant must demonstrate that: (1) the party has a

meritorious defense or claim to present if relief is

granted; (2) the party is entitled to relief under one

of the grounds stated in Civ.R. 60(B)(1) through (5);

and (3) the motion is made within a reasonable time,

and, where the grounds of relief are Civ.R. 60(B)(1),

(2) or (3), not more than one year after the judgment,

order or proceeding was entered or taken.

{$ 12) The Brandles rely on Civ.R. 60(B)(3), which

authorizes a court to vacate its prior final judgment or order

for "fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation or other misconduct of an adverse

party."

{Q 13) The fraud or misconduct contemplated by Civ.R.

THE COURT OF APPEALS OF OHIO9F.(,.C1N7) APPRT.T.ATR T]T.CPRT!`T

5

60 (B) (3) is fraud or misconduct on the part of the adverse party

in obtaining the judgment by preventing the losing party from

fully and fairly presenting his defense, not fraud or misconduct

which in itself wouldbave amounted to a claim or defense in the

case. State Alarm, Inc. V. Riley Industrial Services, et al, 8th

Dist. Cuyahoga No. 92760, 2010-Ohio--900, q 21; First Merit Bank,

N.A. v. Crouse, 9th Dist. Lorain No. 06CA008946, 2007-Ohio-2440,

Q 32; LaSa.Zle National Bank v. Mesas, 9th Dist. Lorain No.

02CA008028, 2002^0hio-6117, 9 15.

{9[ 14} The Brandles' claim that Wells Fargo committed a

fraud or engaged in misconduct when it commenced its foreclosure

action against them because Wells Fargo did not own their note

and mortgage is a matter that could have been presented as a

claim or defense by the Brandles in the foreclosure action Wells

Fargo commenced. There is no basis to find that Wells Fargo's

alleged fraud or misrepresentation that it owned the note or

mortgage in any way prevented the Brandles from fully and fairly

presenting that defense in a pleading responsive to Wells Fargo's

complaint. Instead of presenting that defense, the Brandles

failed to plead or appear in the action, and they offer no reason

for their failure to do that. The Brandles may not now rely on

their failure to appear as a basis to convert a defensive claim

they didn't plead to a claim of fraud or misconduct on which to

vacate the judgment that was granted Wells Fargo pursuant to

Civ.R. 60(B)(3).

{9( 15} The first assignment of error is overruled.

THE COURT OF APPEALS OF OHIOSF.CnNT) APPP.T.T.ATR TIISTRU`9'

{q 16} Second Assignment of Error:

{y[ 17} "APPELLANTS DID NOT WAIVE THEIR LACK OF STANDING

DEFENSE BECAUSE STANDING IS JURISDICTIONAL AND CAN NEVER BE

WAIVED. 'r

{9[ 18} The Brandles argue that because Wells Fargo didn't

own their note or mortgage, Wells Fargo. lacked standing to

commence its foreclosure action against them, depriving the court

of..jurisdiction to adjudicate Wells Fargo's claim for relief

against the Brandles in that action. A lack of jurisdiction may

be a basis for relief pursuant to Civ.R. 60(B)(5).

{9[ 19} In J.P. Morgan Chase Bank Tr. v. Murphy, 2d Dist.

Montgomery No. 23927, 2010-Ohio-5285, we wrote:

{$ 19} "It is well understood *** that the lack

of subject matter jurisdiction may be raised anytime."

Hunt v. Hunt (Oct. 28, 1994), Greene App. No. 93-CA-92.

While Murphy asserted that their motion to dismiss was

a "jurisdictional motion," we have previously held,

"[b]ecause `[t]he issue of lack of standing "challenges

the capacity of a party to bring an action, not the

subject matter jurisdiction of the court," *** the

issue of standing or the "real-party-in-interest""

defense is waived if not timely asserted. "' Countrysvide

Home Loans v. Swayne, Greene App. No.2009 CA 65,

2010-Ohio-3903, 1 29. In other words, "standing is not

an issue of subject matter jurisdiction." Portfolio

Recovery Assoc., L.L. C. v. Thacker., Clark App. No.2008

THE COURT OF APPEALS OF OHIO3F.CnNT) APPF.T.T.ATF. T]TSTRTf:T

z

CA 119, 2009-Ohio-4406, 1 14. As noted_above, Murphy

did not timely challenge the standing of JPMorgan Chase

to prosecute the foreclosure action, and Murphy

accordingly waived this argument.

(y[ 20} That same logic applies in the present case. By not

availing themselves of the opportunity to appear in the action to

present their standing claim.as a defense, the Brandles waived

thei.r•right to rely on a lack of standing as grounds for Civ.R.

60(B) relief. Further, a lack of standing does not deprive a

court of subject matter jurisdiction.

{$ 21} Thesecond assignment of error is overruled. The

judgment of the trial court will be affirmed.

FAIN, J., And CUNNINGHAM, J., concur.

(Hon. Penelope R. Cunningham, First District Court of Appeals,sitting by assignment of the Chief Justice of the Supreme Court

of Ohio. )

Copies mailed to:

Scott A. Ring, Esq.Terry W. Posey, Jr., Esq.

Marc E. Dann, Esq.Grace Doberdruk, Esq.Hon. Roger B. Wilson

THE COURT OF APPEALS OF OHIOcutrnNn APVx.a.T.aTx nIeTRrrT

-,12/29/2011 13:41 9374841025

iiCHAM C0 CMN PLEAS CT PAGE 01/05

IN THE COURT OF COMMON PLEAS CHAMPAIGN COUNTY, OHIO

WELLS FARGO BANK, N.A., *

,Plaintiff,

-vS- ^

Case No. 2010 CV 336

TIMOTHY A. BRANDLE, et al., t^

Journal Entry

+Defendant.

wx . ht aE,t 4w x^x wm w+ . at xt .ax ^_x:.

Q

The case came before the Court on motions filed by Defendants Br44Pd for^

Civ.R. 60(B) relief and to stay sheriff's sale.^

Cfv.R. 60(B) Motion "-,t^ crrC)!, r_n

Upon consideration of all matters submitted, and using the standards of Civ,R.

60, the Court declines to grant the motion.

"'To prevail on a motion brought under Giv.R. 60(B), the movant must

demonstrate that: (1) the party has a meritorious defense or claim to present if relief is

granted; (2) the party is entitled to relief under one of the grounds stated in Civ_R.

60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where

the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the

judgment, order er proceeding was entered or taken."' Mid-State Trust IX v. Davis, 2"°

Dist. Champaign App. No. 07-CA-31, 2008 Ohio 1985, ¶21, quoting GTE Automatic

Elec Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146. "The requirements

outlined above are independent and in the conjunctive; thus the test is not fulfilled if any

one of the requirements is not met. Motions for relief from judgment under Civ.R. 60(B)

are addressed to the triaf court's sound discretion, and the court's ruling will not be

12/29/2011 13:41 9374841025 CHAM CO CMN PLEAS CT PAGE 02/05

^i

WELLS FARGO BANK V, BRANDLE 2010 OHIO 336 PAGE 2

disturbed on appeal absent a showing of abuse of discretioh." Mid-State Trust IX,

supra, at ¶22 (internal quotations and citations omitted),

Defendants Brandle argue that Plaintiff is not the holder of the note because

there is no evidence of an indorsement on the note to Plaintiff, and that as a result

Plaintiff could not have proceeded with this action. Defendants contend that, to have

standing, Plaintiff was required to be the holder of the note and mortgage prior to filing

the complaint in this case. Defendants cite various appellate decisions, including Wells

Fargo v. Jordan, 8'h Dist, No. 91675, 2009 Ohio 1092.

"Some Ohio appellate districts have held ... that the lack of ownership of a

mortgage or note at the time a complaint is filed does not preclude judgmerr^ Javo^f

the plaintiff, so long as the plaintiff is the owner of the note and/or assigneegf;the rD

mortgage at the time the ... judgment is entered." Fed. Home Loan Mtge. Csifro: _v.

Schwartzwald, 2"tl Dist. No. 2010 CA 41, 2011 Ohio 2681, ¶63. "Other distri^^f3ave-ri6i I,T1

taken a different view, requiring the plaintiff to own the note and the mortgage at the

time the complaint is filed_" Id., ¶64.

"[I]n our view, the required analysis is the one put forth by Freddie Mac, i.e., that

the lack of standing or a real party in interest defect oan be cured by the assignment of

the mortgage prior to judgment. To hold otherwise would elevate lack of standing to a

jurisdictional defect, a position that the Ohio Supreme Court has thus far rejected."

Schwartzwald, ¶75.1

9

'The Court notes that the issue of whether a. plaintiffmu.st be the owner of the note andmortgage prior to filing a complaint or, whether sucb, defect may be cured prior to judgtnent iscurrently before the Ohio Supreitle Court.

12/29/2011 13:41 9374841025 CHA1+9 CO CMN PLEAS CT PAGE 03/05

WELLS FARGO DANK V. BRANDLE 2010 OHIO 336 PAGE 3

Thus, the Court finds that Plaintiff was not required to hold the note and

mortgage prior to filing this action.

More importantly, however, the Court finds that Plaintiff is the assignee of the

mortgage. See Complaint, Ex. C. Said assignment states in pertinent part that

Washington Mutual Bank "by these presents does convey, grant, sell, assign, transfer

and set over the described mortgage together with the certain note(s) described therein

together with all interest secured thereby, all liens, and any rights due or to become due

thereon to Wells Fargo Bank, N.A. ...."

This is similar to the case in Schwartzwald, where indorsements onmfixe!not^= r,>

were held to be insuffioient to constitute negotiation under the UCC. Id., W:^saesi5rte^^::1;;:' •'

this insufficiency, the mortgage was clearly assigned and the 2"a District helel;:th'at tlAL^,:y;tiil

assignments reflected the intent to convey both the mortgage and the note, aio'ng v^

the attendant right to enforce the note. Id. The 2"d Dist. concluded "Freddie Mac, as

assignee of the Schwartzwalds' mortgage, was entitled to bring a foreclosure action,

due to the Schwartzwalds' default, as a nonholder in possession with a right to enforce

the note." Id. See, also, Bank of New York v. Dobbs, 51" Dist. No. 2009-CA-2, 2009

Ohio 4742; Third Restatement of Property (Mortgages) §5.4.

In Dobbs, the Fifth District noted that, "in Ohio it has been held thattransfer of the note implies transfer of the mortgage. *** 'Where a notesecured by a mortgage is transferred so as to vest the legal title to thenote in the transferee, such transfer operates as an equitable assignmentof the mortgage, even though the mortgage is not assigned or delivered,"'(Internal citations omitted.) Dobbs at ¶29-30. The Dobbs court extendedthat rationale, holding that the assignment of a mortgage, without anexpress transfer of the note, was also sufficient to transfer both themortgage and the note, if the record indicated that the parties intended totransfer both, Id. at 31.

12/29(2011 13:41 9374841025 CHAM CO CMN PLEAS CT PAGE 04/05

WELLS FARGO BANK V. BRANDLE 2010 OHIO 336 PAGE 4

Schwartzwald, 2011 Ohio 2681, ¶54.

The Court finds that, based on this record, Plaintiff was entitled to bring this

foreclosure action. See Schwartzwald, supra; D4bbs, supra; Third Restatement of

Property (Mortgages), §5.4.

The Court also finds that "the failure to name the real party in interest is an

objection or defense to a claim which is waived if not timely asserted." Washington

MutualBank v. Novak, 8t" Dist. No. 88121, 2007 Ohio 996, ¶16; Mid-State IX v. Davis,

supra. The Court finds that the objection that Plaintiff was not the real party in interest

was not timely raised as a mafter of law and was waived. Novak, ¶17.

The Court further finds that Defendants Brandle did not raise this defense within

a reasonable time as required by Civ.R. 60(B). The Court notes that the motion for

Civ.R. 60(B) relief, although filed just under two months after the judgment and decree

of foreclosure in this case, was filed over a year Defendants Brandle were personally

served with the complaint and represents Defendant Brandle's first filing with the Court

in this matter. Defendants Brandle offer no new evidence or material not availabl

them at the time they,were served with the compiaint.ra

As a result of Defendants' failure to meet the requirements of Civ,R. ^), the

Court declines to grant their motion to vacate the judgment and decree of Otkjos@b.

Motion to Stay Sheriff s Salew

C`-

Upon consideration of a!I matters submitted, the Court declines to grant the

motion to stay sheriff's sale. The Court finds that the requested stay was contingent

upon the Court's ruling in the Civ.R. 60(B) motion,

12/29/2011 13:41 9374841025 CHAM CO CMN PLEAS CT PAGE 05/05

WELLS FARGO BANK V. BRANDLE 2010 OHIO 336 PAGE 5

Given the Court's ru[ing on the Civ.R, 60(B) motion above, a stay of the sale is

unnecessary.

Sheriff's sale remains as previously scheduled. 19^_r.-.. ^...

Defendants Brandfe to pay costs. ;..;=, : ^

944edRogefB. Wi son

rv

Judge

Copies; Jennifer N. Heiler, Counsel for PlaintiffJane A. Napier, Assistant Prosecuting AttorneyMark E. Dann and Grace M. Dob®rdruk, Counsel for Defendants BrandleKeyBank N.A., 127 Public Square, Cleveland, Ohio 44114Sarah Marsh, Champaign County Sheriffs Office