OR1GiN .

IN THE SUPREME COURT OF OHIO

Bank of America, National Association

Case No.
11-2104
Plaintiff-Appellee
vs.
On Appeal from the Delaware County
Ezekiel Jimenez, et al. Court of Appeals
Fifth Appellate District
Defendants-Appellants
Court of Appeals Case No. 11CAE 05 0046

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANTS EZEKIEL JIMENEZ AND AZAR SARIKHANI

Brian K. Duncan (0080751) (COUNSEL OF RECORD)

Elliot B. Garvey (0086266)
DUNCAN SIMONETTE, INC.
155 East Broad Street, Suite 2200
Columbus, Ohio 43215
Ph: (614) 220-9000
Fax: (614) 222-0920
bduncan@duncansimonette.com
Counsel for Appellants Ezekiel Jimenez
and Azar Sarikhani

Scott A. King (0037582) (COUNSEL OF RECORD)

Nicholas W. Myles (0083873)
2000 Courthouse Plaza, N.E.
P.O. Box 8801
Dayton, Ohio 45401-8801
Ph: (937) 443-6600
r
Fax: (937) 443-6635
scott.king@thompsonhine.com D^C'1^ZC19
Counsel for Appellee Bank ofAmerica,
National Association CvERK OF COURT
SUPREME COURT OF OHIO
 TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL

INTEREST ............................................................. 1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT ........................................................... 6

Proposition of Law No. 1: In order to show standing and/or

invoke the jurisdiction of the trial court in a foreclosure
action, the plaintiff must show that it is the holder of the
note and the mortgage at the time at which the complaint
was filed in order to be deemed a real party in interest. A
foreclosure plaintiff must also show, at the time the
foreclosure action is filed, that, as the holder of the note
and mortgage, it has been harmed, usually because the
holder did not receive payment.

CONCLUSION ........................, .................................10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

APPENDIX

Judgment Entry of Fifth Appellate District ( October 31, 2011) . . . . . . . . . . . . . . . . . . . Al

Opinion of Fifth Appellate Distri ct ( October 31, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . A2

 TABLE OF AUTHORITIES
Cases:

Aurora Loan Servs., L.L.C. v. Car, 2010-Ohio-1157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Automated Information Processing, Inc. v. Genesys Solutions Group, Inc., 164 F.R.D. 1, 93
(D.N.Y.1995) . . . . . . . . . . . . . . . . . . . . . . . . . . .....................................

Bank ofNew York v. Stuart, 2007-Ohio-1483 (Ohio App. 9 Dist.) . . . . . . . . . . . . ••••• ••••••• 3

Buckeye Foods v. Cuyahoga Cty. Bd of Revision, 78 Ohio St.3d 459 . . . . . . . . . . . . . . . . . . . . . . 8

...................... • • •
CitiMortage, Inc. v. Slack 2011- Ohio-613 (Ohio App. 8 Dist.) •9

Deutsche Bank Natl. Trust Co. v. Pagani, 2009- Ohio-5665 (Ohio App. 5 Dist.) ............. 3

Deutsche BankNatl. Trust Co. v, Triplett, 2011- Ohio-478 (Ohio App. 8 Dist.) . . . . . . . . . . . . . 7
.....................
Discover Bank v. Brockmeier, 2007-Ogio 1552 (Ohio App. 12 Dist.) 7

DLJMtge. Capital, Inc. v. Parsons, 2008-Ohio-1177 (Ohio App. 7 Dist.) . . . . . . . . . . . . . . . . . . 3

Everhome Mortgage Co. v. Rowland, 2008-Ohio 1282 (Ohio App. 10 Dist.) . . . . . . . . . . . . . . 2-3

Feist v. Consolidated Freightways Corp., (1999), 100 F.Supp.2d 273, 274 . . . . . . . . . . . . . . . 8-9

First Horizon Home Loan Corp. v. Roberts, 2010-Ohio-60 (Ohio App. 8 Dist.) . . . . . . . . . . . . . .9

First Union Natl. Bank Hufford, (2001), 146 Ohio App. 3d 673 . . . . . . . . . . . . . . . . . . . . . . . . . . 3
. . . . . . . . . . . . .8
Gildner v. Accenture, L.L.P., Franklin App. No. 09AP-167, 2009 Ohio 5335 . . .

Grant Thorton v. Windsor House, Inc., (1991), 57 Ohio St. 3d 158, 161 . . . . . . . . . . . . . . . . . . . 7

Home Loan Mortgage Corp. v. Schwartzwald, Case Nos. 11-1201 and 11-1362 . . . . . . . . . . . . . :1

In re Highland Holiday Subdiv., (1971), 27 Ohio App. 2d 237, 240 . . . . . . . . . . . . . . . . . . . . . . . 7

JP Morgan Chase Bank Trustee v. Murphy, 2010-Ohio-5285 (Ohio App. 2 Dist.) ........... 9

Kramer v. Millott, 1994 WL 518193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

........................
Mid-State Trust IX v. Davis, 2008-Ohio-1985 (Ohio App. 2 Dist.) 3

Mtge. Electronic Registration Sys., Inc. v. Mosley, 2010-Ohio-2886 (Ohio App. 8 Dist ).... 8, 9
New Boston Coke Corp. v. Tyler (1987), 32 Ohio St.3d 216 . . . . . . . . . . . . . . . . : . . . . . . . . . . . . .8

State ex rel. Davet v. Sutula, 201 1-Ohio-2803 (Ohio App. 8 Dist.) . . . . . . . . . . . . . . . . . . . . . .7, 9

State ex rel. Jones v. Suster (1998), 84 Ohio St.3d 70 . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . 7-8

United States v. CMA, Inc., (1989), 890 F.2d 1070, 1074 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

U.S. Bank, N.A. v. Duvall, (2011), 128 Ohio St. 3d 1443 . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . 1

US Bank Natl. Assoc. v. Marcino, (2009), 181 Ohio App. 3d 328 . . . . . . . . . . . . . . . . . . . . . . . . .3

Washington Mut. BankF.A. v. Green, 2004-Ohio-1555 (Ohio App. 3 Dist.) . . . . . . . . . . . . . . . . .3

Washington Mutual Bank v. Novak, 2007-Ohio-996 (Ohio App. 8 Dist.) . . . . . . . . . : . . . . . . : . . 3

Washington Mutual Bank v. Wallace, 2011-Ohio-4174 (Ohio App. 12 Dist.) . . . . . . . . . . . . . 1-2

Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285 . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 2-3, 7

Wells Fargo Bank, N.A. v. Jordan, 2009-Ohio-1092 (Ohio App. 8 Dist.) . . . . . . . . . . . . . . 1, 3, 7

Wells Fargo Bank, N.A. v. Sessley, (2010), 188 Ohio App. 3d 213, 221 . . . . . . . . . . . . . . . . . . 2-3

Wells Fargo Bank, N.A. v. Stovall, 2010-Ohio-236 (Ohio App. 8 Dist.) . . . . . . . . . . . . . . . . . . . .3

Ohio Rules:

Civil Rule 60(B) .....................................................:.....4,5,10

iv
 EXPLANATION OF WHY THIS CASE IS
OF PUBLIC OR GREAT GENERAL INTEREST

This case presents a timely opportunity for this Court to resolve a split in authority

among the various District Courts of Appeal of Ohio and address two fundamental issues in Ohio

foreclosure cases. The first question is whether a plaintiff has standing to bring a mortgage

foreclosure action when it cannot show that it owned the note and mortgage at the time the action

was filed? The second question is, in a mortgage foreclosure action, can the lack of standing or

real party in interest defect be cured by an assignment of mortgage prior to judgment? In light of

the conflicting rulings on these issues among Ohio appellate districts and the massive volume of

foreclosure actions, it is critically important that a definitive standard be established to promote

consistency in the legal standard regarding the process of foreclosing on a mortgage. A

resolution to these issues is of great public interest, and would further promote consistency in

Ohio law and efficiency in Ohio courts.

Earlier this year, this Court recognized the importance of such a resolution by certifying a

question identical to the first issue stated above for review in U.S. Bank, N.A. v. Duvall, 128

Ohio St.37d 1443, 944 N.E.2d 693, 2011-Ohio-1618. Although Duvall was eventually dismissed

as the underlying issue became moot, the question still awaits a defmitive resolution. In

addition, a question identical to the second issue is pending certification in Home Loan Mortgage

Corp. v. Schwartzwald, Case Nos. 11-1201 and 11-1362. In Schwartzwald, the Second District

found its decision in conflict with decisions of the First and Eighth Districts.1 Even more

recently, the Twelfth District Court of Appeals certified an identical conflict in Washington

Mutual Bank v. Wallace, Twelfth Dist. App. No. CA2010-10-103, 2011-Ohio-4174, and stated

the question as follows:

' Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722; Wells Fargo Bank, N.A.
v.Jnrdary 8ShD^s1. No. 91675 2009-Ohio-1092

1
 Can a bank that was not the mortgagee when it filed a foreclosure suit cure its lack of
standing to bring the suit by subsequently obtaining an interest in the note andmortgage?

These interrelated issues are ripe for a determination by this Court to resolve the inconsistencies

among the Ohio's district courts and provide a consistent procedure to be followed in the

initiation of a foreclosure action.

The issues are especially pressing in light of the substantial amount of fraudulent and/or

negligent activities that have been exposed recently, both in Ohio and at the federal level, with

respect to loans, mortgages, and related real estate transactions. The long-standing practices of

the real estate finance industry have sought to decrease administrative costs and increase profits

through the use of nominees and servicing agents to facilitate the sale of mortgage-backed

securities and pooled mortgage trusts. However, drastic problems in the oversight of the

secondary mortgage market have caused wide-spread financial repercussions that further suggest

that judicial interpretation of the basic procedure required for foreclosure is essential to resolve

the question of what is required to be shown by a plaintiff in such an action. Recent legislative

and judicial steps to provide relief to homeowners in the form of loan modification assistance

and mediation pragrams have made progress in alleviating the problem, but the issues in the

instant case present a fundamental obstacle to obtaining such relief, namely; how can a

homeowner discuss resolution options when they do not know who owns their mortgage?

Issues regarding the standing of a mortgagee to bring a foreclosure action are

increasingly subject to litigation in Ohio courts, and as stated above, these issues have been

subject to conflicting interpretations. Not only is the present matter of great concem to those

involved in foreclosure actions, but any issue which creates such varying opinions among our

courts presents an opportunity where a clear resolution would benefit the public generally by

promoting consistency in Ohio law and judicial economy. "Appellate courts are often presented

2
 188
with real-party-in-interest issues in foreclosure actions." Wells Fargo Bank, N.A. v. Sessley,

Ohio App.3d 213, 221, 935 N.E.2d 70, 2010-Ohio-2902 (citing Everhome Mtge. Co. v. Rowland,
178 Ohio App.3d
10th Dist. No. 07AP-615, 2008-Ohio-1282; Wells Fargo Bank, N.A. v. Byrd,

285, 2008-Ohio-4603, 897 N.E.2d 722)? As such, this case presents an excellent opportunity for

this Court to address these issues and set forth a standard that can be relied upon by courts,

lenders, and individual homeowners.

The instant case is a quintessential example of the need for a definitive standard. Faced

with financial hardship, Defendants, like many other citizens of Ohio, sought debt-relief options.

Despite substantial attempts to communicate with various individuals and companies,

Defendants discovered they were being foreclosed on by another company, with whom they had

never contracted with or even had any communication, yet were told that they owed this

company over three hundred thousand dollars. Homeowners in Ohio, such as Defendants,

deserve at least a minimal degree of transparency in the buying and selling of the secured interest

in their homes. At the very least, a plaintiff in a foreclosure action should be required to show

that it owns the note and mortgage before it can bring a lawsuit to make claims about the

enforcement of the underlying debt. This timely and pressing issue should be resolved by this

Court and it would be of extraordinary public interest for this Court to hear Defendants' case.

(2001), 146 Ohio App.3d 673, 767 N.E.2d 1206; Kramer v.

2 See also, e.g., First Union Natl. Bank v. Hufford Washington Mut. Bank, F.A. v. Green, 156 Ohio
Millott (Sept. 23, 1994), 6th Dist. No. E-94-5, 1994 WL 518173; 9th Dist. No. 06CA008953, 2007-Ohio-
App.3d 461, 2004-Ohio-1555, 806 N.E.2d 604; Bank ofNew York v Stuart,
DLJMtge. Capital, Inc. v. Parsons,
1483; Washington Mut. Bank v. Novak, 8th Dist. No. 88121, 2007-Ohio-996; 2d Dist. No. 07-CA-31, 2008-Ohio-1985;
7th Dist. No. 07-NiA-17, 2008-Ohio-1177; Mid-State Trust IX v. Davis,
US Bank, Natl. Assn. v. Marcino, 181
Wells Fargo Bank, N.A. v. Jordan, 8th Dist. No. 91675, 2009-Ohio-1092;
Ohio App.3d 328, 2009-Ohio-i 178, 908 N.E.2d 1032; Deutsche Bank Natl. Trust Co. v. Pagani, 5th Dist. No.
09CA 0000j_3,200_9L_0hioS665;-N e1&Fargo Bank N.A. v. Sto v all, 8th Di s t . N o. 91802 , 2010-Ohio-236.

3
 STATEMENT OF THE CASE AND FACTS

Background Facts
This appeal stems from a denial of Defendants-Appellants', Ezekiel Jimenez and Azar

Sarikhani (hereinafter referred to as "Appellants"), motion for relief from judgment under Civ.

R. 60(B). On April 12, 2010, the Complaint in Foreclosure which initiated this Action was filed

by Plaintiff-Appellee Bank of America, National Association (hereinafter referred to as

"Appellee"). As set forth in Appellants' Motion for Relief from Judgment, filed with the trial

court on January 11, 2011, Appellants were engaged in negotiations with non-party Wells Fargo

Home Mortgage ("Wells Fargo") during the pendency of the underlying foreclosure proceeding,

upon the belief that said company owned the mortgage and note at issue, and were completely

unaware of how Appellee was involved in their situation. Said confusion and excusable neglect

was furthered by the fact that Appellants continued to receive numerous account statements and

correspondence ftom Wells Fargo on the same account during this time period.

In addition, and as set forth in Appellants' post-judgment and appellate pleadings,

Appellants originally purchased the property at issue after being approached by Ms. Pamela

McCarty, as agent for Mr. Thomas Parenteau, and were fraudulently induced to apply the

substantial equity of their home at the time toward the purchase the underlying property, relying

on assurances of affordable monthly payments and other misrepresentations (see Exhibits

attached to Appellants post-judgment motions filed with the trial court). Both Ms. McCarty and

Mr. Parenteau were subsequently charged and convicted of fraud and other crimes arising out of

their actions in selling luxury homes at inflated prices throughout central Ohio. As a result,

when Appellants found themselves unable to afford the monthly payments on their home

mortgage and attempted to discuss their situation with the individuals and lender they had

4
worked with, they discovered that the business had been closed and the individuals unavailable

due to their arrests for the aforementioned crimes.

Procedural History

As a result of the facts set forth above and in Appellants' post-judgment motion in the

trial court, Appellants did not respond to the April 12, 2010 foreclosure complaint, and Appellee

first moved for Default Judgment on May 17, 2010. A "Notice of Filing Note or Allonge of

Note" and "Notice of Filing Assignment of Mortgage" were filed with the court in conjunction

with said motion, which purportedly demonstrated that Appellee, over a month after filing its

complaint, had now obtained ownership of the note and mortgage and was owed the balance due

thereunder. Throughout the proceedings, Appellants were still working with Wells Fargo and

various third party companies to resolve their financial situation and to keep up with the

mortgage obligation. After dismissing the first motion, Appellee filed a second Motion for

Default Judgment on June 25, 2010, which the trial court granted on July 1, 2010.

On or about January 11, 2011, Appellants retained the undersigned counsel to pursue

potential debt relief options, including, but not limited to bankruptcy. On that same date,

Appellants filed a Combined Motion to Vacate the July 1, 2010 Judgment Entry, Motion for Stay

of Execution of Sherriff's Sale scheduled for January 12, 2010, Motion for Foreclosure

Mediation and Motion for Extension of Time to Answer (hereinafter referred to as "Motion to

Vacate"). Pursuant to Civ. R. 60(B), Appellants' Motion to Vacate contained allegations of

operative facts set forth in an attached Affidavit of Defendant-Appellant Ezekiel Jimenez ("Mr.

Jimenez"). Based upon the impending time constraints of the scheduled January 12, 2011

Sheriff s Sale, the unavailability of the trial court to rule on the pending Motion to Vacate, and

most importantly, in light of Mr. Jimenez's overall financial situation, a voluntary petition for

5
bankruptcy was prepared and filed in the U.S. District Court for the Southern District of Ohio as

Case No. 11-50213. However, upon review of Mr. Jimenez's mortgage documents, serious

deficiencies were discovered which raised a substantial question as to whether Appellee or Wells

Fargo was in fact the holder in due course of the underlying promissory note, and as to which

lender was the real party in interest with standing to bring the foreclosure action.3

Upon reactivation of the underlying trial proceeding, Appellee filed its Response in

Opposition to Appellant's Motion to Vacate on February 25, 2011. The Trial Court then issued

its Decision denying Appellant's Motion to Vacate on April 12, 2011. Despite Appellant's

Motion for Reconsideration and renewed request for an evidentiary hearing on the subsequently

discovered evidence, the April 12, 2011 Decision remained a final appealable order from which

Defendant brought to the appeal to the Court of Appeals of Ohio Fifth Appellate District. The

Court of Appeals set forth an Opinion and Judgment Entry denying Defendants' Motion on

October 31, 2011 from which the present appeal is brought. A copy of said Opinion and

Judgment Entry is attached hereto.

ARGUMENT

Petitioner's First Proposition of Law:

In order to show standing and/or invoke the jurisdiction of

the trial court in a foreclosure action, the plaintiff must
show that it is the holder of the note and the mortgage at
the time at which the complaint was filed in order to be
deemed a real party in interest. A foreclosure plaintiff must
also show, at the time the foreclosure action is filed, that, as
the holder of the note and mortgage, it has been harmed,
usually because the holder did not receive payment.

3 In said bankruptcy proceeding, Wells Fargo asserted an interest in the real property of the estate on January 17,
2011, despite the fact that its ownership of the note and mortgage was allegedly assigned to Appellee on May 17,
7A1-0

6
 In order to promote fairness and equality in foreclosure actions, it is imperative that only

those who are holders of the relevant note and mortgage at the time of filing are deemed to have

standing. In any other civil action, a plaintiff may not transfer his or her interest on a whim.

Rather, our judicial system is set so that only a person having a genuine interest in resolving a

claim may seek recovery upon it. In a foreclosure action, the only party with a real interest in

recovery is that party which holds the note and mortgage. Although the Ohio courts of appeal

have split views on this matter, there is substantial legal and policy support for finding that such

standing cannot be transferred and/or cured after a complaint is filed.

The real party in interest is generally considered to be the person who can discharge the

claim on which the suit is brought, or is the party who, by substantive law, possesses the right to

be enforced. Wells Fargo v. Byrd, 178 Ohio App.3d 285, 289, 897 N.E.2d 722, 2008-Ohio-4603.

Unless a party has some real interest in the subject matter of the action, that party will lack

standing to invoke the jurisdiction of the court. Id., citing Discover Bank v. Brockmeier, 12th

Dist. No. CA2006-07-078, 2007-Ohio-1552 at ¶ 7, quoting In re Highland Holiday Subdiv.

(1971), 27 Ohio App.2d 237, 240, 56 0.O.2d 404, 273 N.E.2d 903, citing Grant Thornton v.

Windsor House, Inc. (1991), 57 Ohio St.3d 158, 161, 566 N.E.2d 1220. The Eighth District,

along with other courts, has found that the putative mortgagee must own the mortgage at the time

of the filing of the complaint, otherwise it lacks standing. State ex rel. Davet v. Sutula, 8 Dist.

No. 96548, 2011-Ohio-2803 at ¶3, citing Wells Fargo Bank, N.A. v. Jordan, Cuyahoga App. No.

91675, 2009-Ohio-1092; Deutsche Bank Natl. Trust Co. v. Triplett, Cuyahoga App. No. 94924,

2011-Ohio-478 at 112.

In its decision affirming the trial court's denial of Appellants' Motion to Vacate, the Fifth

District relies on this Court's decision in State ex rel. Jones v. Suster (1998), 84 Ohio St.3d 70,

7
and stating that "[t]he failure to be a real party in interest is not a jurisdictional defect." (Opinion,

¶ 17). However, the facts in Suster are distinguishable from the issues presented herein, and this

Court further explained that the concept of jurisdiction may have different meanings "depending

on the context in wliich it is used and the subject matter to which it is directed." Suster, 84 Ohio

St.3d at 77, fin. 4. The Eighth District declined to extend the holding in Suster to a case which

presented nearly identical issues as the instant case in Mortgage Electronic Registration Systems,

Inc. v. Mosley (2010), Ohio App. 8 Dist., 2010 Ohio 2886. In Mosley, the Eighth District

rejected an argument that the appellants had waived their standing argument, stating that

"Standing is a jurisdictional requirement and cannot be waived." Id. (citing Buckeye Foods v.

Cuyahoga Cty. Bd. of Revision, 78 Ohio St.3d 459, 1997 Ohio 199; New Boston Coke Corp. v.

Tyler (1987), 32 Ohio St.3d 216, 513 N.E.2d 302; and Gildner v. Accenture, L.L.P., Franklin

App. No. 09AP-167, 2009 Ohio 5335). As reasoned by the Eighth District, in most contexts,

when a party lacks standing, they are unable to invoke the jurisdiction of the court and the lack

of this necessary element cannot be waived. Knowing this, Appellee has attempted to sidestep

judicial processes by acquiring some interest in the present action and attempting to transfer

subject matter jurisdiction upon itself, subsequent to initiating the underlying action.

In light of the relevant split among our appellate courts, the First District has found it

helpful to rely on federal sources for guidance in interpreting rules related to these matters. See

Byrd at 290. "In light of the foregoing authority, we must respectfully disagree with the Ninth

Appellate District. We hold that in a foreclosure action, a bank that was not the mortgagee when

suit was filed cannot cure its lack of standing by subsequently obtaining an interest in the

mortgage." Id. at 291, relying on United States v. CMA, Inc. (C.A.9, 1989), 890 F.2d 1070, 1074;

Feist v. Consolidated Freightways Corp. (E.D.Pa.1999), 100 F.Supp.2d 273, 274 (Plaintiffs

8
filing of suit in his own name after his Chapter 7 case was closed, and after having failed to list

injury claim as estate asset, was not result of honest mistake and thus warranted dismissal rather

than substitution of bankruptcy trustee as real party in interest); Automated Information

Processing, Inc. v. Genesys Solutions Group, Inc. (D.N.Y.1995), 164 F.R.D. 1, 3 (The rule

permitting substitution of real party in interest when necessary to avoid injustice did not permit

substitution of newly formed corporation as plaintiff, after it was discovered that corporation that

originally brought action had been dissolved). As in these cited examples, this instant matter is

not a situation in which mistake, inadvertence, or some other reasonable error is responsible for

Appellee's attempt to move forward with a suit in which it lacks standing. Rather, this case

presents a scenario in which Appellee attempts to substitute itself as the party-in-interest.

In determining which parties do or do not have standing to file a complaint in a

foreclosure action, this Court must also resolve the conflict relating to when the related defense

must be asserted. There is a split in authority as to whether the issue of standing in a foreclosure

action may be waived if not timely asserted. Sutula at ¶7. See, e.g., JPMorgan Chase Bank

Trustee v. Murphy, Montgomery App. No. 23927, 2010-Ohio-5285, ¶ 19 (standing can be

Cuyahoga App. No. 93170, 2010-
waived); Mtge. Electronic Registration Sys., Inc. v. Mosley,

Ohio-2886, ¶ 17 (standing is jurisdictional and cannot be waived); Aurora Loan Servs., L.L.C. v.

First
Car, Ashtabula App. No .2009-A-0026, 2010-Ohio-1157, ¶ 18 (standing waived);

Horizon Home Loan Corp. v. Roberts, Cuyahoga App. No. 92367, 2010-Ohio-60 (standing

waived)." CitiMortgage, Inc. v. Slack, Cuyahoga App. No. 94899, 2011-Ohio-613, ¶ 10, n. 3.

This Court should find that standing is a jurisdictional issue and therefore cannot be

waived. A court's jurisdiction is based on its ability to hear the controversy before it. If a party

does not have legal standing to bring an action, it follows that the controversy is outside of the

9
court's jurisdiction. As a fundamental element of subject matter jurisdiction, the issue of whether

a party has standing to bring an action is a jurisdictional requirement that cannot be waived.

Even if this Court supports another determination, the question itself is still of great general

interest as it coincides with a party's rights throughout the course of a foreclosure action.

CONCLUSION

The present matter presents a question this is not only highly relevant to the general

public, but which also has created great conflict among the Ohio Courts of Appeal. The question

of standing in a foreclosure action is of great general interest and a ruling by this Court would

benefit the public, the judicial system, and any party involved in a foreclosure action. It is

imperative to protect the rights of homeowners in Ohio by setting forth a standard on which they

can rely. The undersigned, on behalf of Appellants, maintain that the presence of procedural

and/or jurisdictional defects in the underlying action should, in and of itself, be grounds

sufficient to support a ruling in favor of Appellants' on their post-judgment motion for relief

filed under Civ. R. 60(B).

For the foregoing reasons, Appellants respectfully request that this Court accept

jurisdiction in this case.

Brian K. Duncan (0080751)

Elliot B. Garvey (0086266)
DUNCAN SIMONETTE, INC.
155 East Broad Street, Suite 2200
Columbus, OH 43215
Ph: (614) 220-9000
Fax: (614) 222-0920
bduncan@duncansimonette.com
Counsel for Appellants

10
 CERTIFICATE OF SERVICE

I hereby certify that I have mailed the foregoing Memorandum in Support of Jurisdiction by

United States regular mail, postage prepaid, on December 15th, 2011 to the following:

Lerner, Sampson & Rothfuss Nicholas W. Myles

c/o Nicholas Donnermeyer Scott A. King
PO Box 5480 2000 Courthouse Plaza, N.E.
Cincinnati, OH 45201 10 W. Second Street
Dayton, OH 45402
Delaware County Treasurer
c/o Christopher Betts
140 N. Sandusky St.
Delaware, Ohio 43015

Brian K. Duncan (0080751)

11
 9
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

BANK OF AMERICA,
NATIONAL ASSOCIATION

Plaintiff-Appellee

-ys_ JUDGMENT ENTRY

EZEKIEL JIMENEZ, ET AL

Defendants-Appellants CASE NO. 2011CAE050046

For the reasons stated in our accompanying Opinion, the April 12, 2011 Judgment

Entry of the Delaware County Court of Common Pleas is affirmed. Costs to Appellants.

r N. WILLIAM B.

c^`I.. 16^sf''t t"CL 4WZ

ON. SHEIL/A G. FARMER

✓
JOHN W. WI E

III^qI^q^IIIaqI^IIININ^IqI^qI^^IIINIIBII^I ',^
 COURT OF APPEALS
DELAWARE COUNTY, OHIO
'FIFTH APPELLATE DISTRICT

JUDGES:
BANK OF AMERICA, Hon. William B. Hoffman, P.J.
NATIONAL ASSOCIATION Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
Plaintiff-Appellee

-vs- Case No. 2011 CAE050046

EZEKIEL JIMENEZ, ET AL
OPINION
Defendants-Appellants

CHARACTER OF PROCEEDING: Civil appeal from the Delaware County

Court of Common Pleas, Case No.
10CVE04573

JUDGMENT: Affirmed

r^
DATE OF JUDGMENT ENTRY: 2 0 >
4
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APPEARANCES: ^o - ^ '^
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For Plaintiff-Appellee For Defendants-Appel3ants N r ^w
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NICHOLAS W. MYLES BRIAN K. DUNCAN

SCOTT A. KING ELLIOT B. GARVEY
2000 Courthouse Plaza N.E. 155 East Broad Street, Ste. 2200
10 W. Second Street Columbus, OH 43215
Dayton, OH 45402

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• Delaware County, Casello. 2011 CAE050046 2

Hoffman, P.J.
(111) Defendants-appellants Ezekiel Jimenez and Azar Sarikhani appeal the

April 12, 2011 Judgment Entry entered by the Delaware County Court of Common

Bank of America, National

Pleas rendering judgment in favor of Plaintiff-appellee

Association.
STATEMENT OF THE CASE

(12) On April 12, 2010, Appellee Bank of America filed a complaint in

foreclosure against Appellants Ezekiel Jimenez and Azar Sarikhani seeking judgment

for the balance due on a note and to foreclose on the associated mortgage. Appellants

did not file an answer to the complaint.

(13) On May 17, 2010, Appellee moved for default judgment against

Appellants. Appellee then dismissed the motion. On June 25, 2010, Appellee filed a

second motion for default judgment. Via Judgment Entry, the trial court granted the

motion for default judgment on July 1, 2010.

(14) Appellants claim they had been involved in good faith negotiations with

Wells Fargo Home Mortgage regarding potential resolution options, an entity who is not

a party to this action, during the pendericy of the foreclosure proceedings. On January

11, 2011, Appeilants retained counsel to pursue debt relief options, including

bankruptcy.
(115) On January 11, 2011, on the eve of the scheduled SherifPs sale,

Appellants filed a motion to vacate the July 1, 2010 Judgment Entry along with a Motion

for Stay of Execution of Sheriffs Sale, Motion for Foreclosure Mediation and Motion for
• Delaware County, Caseo. 2011CAE050046

of Time to Answer. Via Judgment Entry of April 12, 2011, the trial court
Extension

denied Appellants' motion to vacate.

(16) Appellants now appeal, assigning as error:

(17) '9, THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO

VACATE THE UNDERLYING JUDGMENT AS DEFENDANTS/APPELANTS MADE

THE REQUISITE SHOWING UNDER CIV. R. 60 (B) IN THEIR MOTION TO VACATE,

SPECIFICALLY CIV. R. 60 (B) (1) AND (5).

(18) "I{. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO

TAKE HEED OF THE UNDERLYING POLICY OF OHIO COURTS AND

'LONGSTANDING PRACTICE' WITH RESPECT TO ADJUDICATING MATTERS ON

THEIR MERITS AS OPPOSED TO PROCEDURAL DEFECTS.

(119) "Ifl. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO

ADDRESS, OR EVEN CONSIDER, ALLEGATIONS OF OPERATIVE FACTS WHICH

DEMONSTRATE THAT DEFENDANTS WERE ENTITLED TO RELIEF UNDER CIV. R.

60 (B).
(110) "IV. THE TRIAL COURT ABUSED ITS DISCftETtON BY DENYING

DEFENDANTS/APPELLANTS' REQUEST FOR AN ORAL HEARING ON HIS [SIC]

MOTION TO VACATE, DESPITE THE FACT THAT THERE WERE ALLEGATIONS OF

OPERATIVE FACTS WHICH WOULD WARRANT RELIEF UNDER CIV. R. 60 (B)."

I,II,III&IV

(111) Appellants' assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

 0
• Delaware County, Case 14o. 2011CAE050046

(1112) Civ. R. 60(B) provides the basis upon which a party may obtain relief from

judgment, and states in pertinent part: "On motion and upon such terms as are just, the

court may relieve a party """ from a final judgment, order or proceedings for the

following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly

discovered evidence which by due diligence could not have been discovered in time to

move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the

judgment has been satisfied, released or discharged, or a prior judgment upon which it

is based has been reversed or otherwise vacated, or k is no longer equitable that the

judgment should have prospective application; or (5) any other reason justifying relief

from the judgment. The motion shall be made within a reasonable time, and for reasons

(1), (2), and (3) not more than one year after the judgment, order, or proceeding was

entered to taken."
(113) Furthermore, "a motion for relief from judgment under Civ. R. 60(B) is

addressed to the sound discretion of the trial court, and that court"s ruling will not be
(1987),
disturbed on appeal absent a showing of abuse of discrefion." Grrffey v. Rajan
N.A. v. Stein,
33 Ohio St.3d 75, 77, 514 N.E.2d 1122, and Citibank (South Dakota),

Fairfield App. No. 05CA71, 2006-Ohio-2674 at ¶ 27. In order to find an abuse of

discretion, we must determine that the trial court's decision denying Appeilants' motion

was unreasonable, arbitrary or unconscionable, and not merely an error of law or

(1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.

judgment. Bfakemore v. Blakemore
(114) The Ohio Supreme Court interpreted Civ. R. 60(B) in the seminal case of

GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351
• Delaware County, Case P . 2011 CAE050046 a 5

N.E.2d 113 as follows: "To prevail on his 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." Id. at 150-151.

(115) A trial court must determine whether the motion contains allegations of

operative facts which would warrant relief under Civil Rule 60(B), and if so, should grant

an evidentiary hearing. Adomeit v. Baltimore (1974), 39 Ohio App.3d 97.

(116) Herein, Appellants moved the trial court for relief from judgment due to

excusable neglect and/or inadvertence alleging they were misinformed by a third-party

loan modification company. However, as noted by the trial court, Appellants offered only

a self-serving affidavit in support of their motion which did not support their alleged

defenses. "Unsworn allegations of operative facts contained in a motion for relief from

judgment filed under Civ.R. 60(B) or in a brief attached to the motion are not sufficient

evidence upon which to grant a motion to vacate judgment." East Ohio Gas Co. v.

Walker (1978), 59 Ohio App.2d 216. Furthermore, reliance upon a third party loan

modification company does not justify failing to file an Answer to the complaint.

(117) Appellants' first defense asserted Appellee lacked standing or was not the

real party in interest; however, Appellee filed the assignment of the mortgage

subsequent to the filing of the complaint, but prior to.the trial court's judgment, thereby

curing any defect. The failure to be a real party in interest is not a jurisdictional defect.

State ex rel. Jones v, Suster (1998), 84 Ohio St.3d 70.

• Delaware County, Caseto. 2011CAE050046 6

(1118) As Civil Rule 60(B) does not require the trial court to weigh the evidence,

the court was not charged with issuing findings of fact. A trial court "[is] not required to

cite every piece of evidence or testimony offered in its decision, and the fact that a

particular piece of evidence or testimony [is] not mentioned does not mean it was

ignored." Gardner v. Bisciotti, 2010-Ohio-5975. As an appellate court, we presume the

trial court properly considered the affidavit offered in support of Appellants' motion to

vacate the judgment.

(119) Upon review of the record, the trial court did not err in overruling

Appellants' Civil Rule 60(B) motion to vacate the trial court's July 1, 2010 Judgment

Entry.
(120) The April 12, 2011 Judgment Entry of the Delaware County Court of

Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J., and

Wise, J. concur

HON. WILLIAM

HON. Sti
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JOHN W. WISE