wellsvjordan amicus

8/9/2019 WellsvJordan Amicus

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O R ( G I N A L

IN THE SUPREME COURT OF OHIOWells Fargo Bank, N.A., Successor byMerger to Wells Fargo Bank Minnesota,NA, as Trustee, f/n/a Northwest BankMinnesota, N.A., as Trustee for theRegistered holders of Renaissance HomeEquity Loan Asset-backed Certificates,Series 2003-1,

AppellantV s.

Oties Jordan aka Oties Jordan, Jr., et al.,Appel.lees

)))

Case No. 09-1030

On Appeal from the CuyahogaCounty Court of Appeals, EighthAppellate District

Court of Appeals Case NoCA-08-91675

J U L 0 6 2 0 0 9C L E R K O F C O U R TS U P R E M E C O U R T O F O H I O

BRIEF OF AMICUS CURIAE, THE LEGAL AID SOCIETY OF CLEVELAND,IN SUPPORT OF APPELLEES OTIES AND SYLVIA JORDAN

Howard G. Strain (0069262)(Counsel of Record)howard. strain(cd,lasclev. orgPhil Althouse (0051956)ndalthousen,lasclev.orgKatie I. Feldman (0081963)Katie.FeldmanPlasclev.orgMatthew Vincel. (0084422)mvincelna lasclev.oreThe Legal Aid Society of Cleveland1223 West Sixth StreetCleveland, Ohio 44113(216) 687-1900(216) 861-0704 (fax)Counsel, for Am icus Cur iaeThe Legal Aid Society of ClevelandOties Jordan, Jr.Sylvia Jordan960 East 78`' StreetCleveland, Ohio 44103

Charles E. Ticknor, III (0042559)Martha Van Hoy Asseff (0078502)Dinsmore & Shohl, LLP191 W. Nationwide Blvd, Suite 300Columbus, Ohio 43215(614) 221-8448(614) 221-8495 (fax)[email protected]@dinslaaw.coinPhillip C. Barragate (0063017)Benjamin D. Carnahan (0079737)Shapiro, Van Ess, Phillips & Barragate,1500 West Third Street, Suite 455Cleveland, Ohio 44113(216) 373-3131(847) 627-8805 (fax)bcamahanc^,LOGS. comCounsel for Appellant, Wells FargoBank, N.A., as Trustee

Pro Se Appellees


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Stay Focused, LLCc/o Oties Jordan, Jr.960 East 78' StreetCleveland, Ohio 44103Appellee


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TABLE OF CONTENTSTABLE OF AUTHORITIES .............................................................................................. ii.STATEMENT OF INTEREST OF AMICUS CURIAE ........... ........................................ iii.

I. STATEMENT OF WHY THIS CASE IS NOT OF PUBLIC OR GREAT GENERALINTEREST .......................................................................................................................... 1A. This case is not of public or great general interest because it only affects trustees

of securitized trusts, like Wells Fargo, who do not comply with procedures setforth in their filings to the Securities and Exchange Commission .......................... 1

B. This case is not of public or great general interest on the issue of whether aplaintiff who holds a note when it files the Complaint but acquires the mortgageafterwards has standing to sue because in this case Wells Fargo was not the payeeon the Note .. ............................................................................................................ 2

II. STATEMENT OF FACTS AND STATEMENT OF THE CASE ..................................... . 3A. The original transaction between the Jordans and Delta Funding Corporation...... 3B. The creation of "Renaissance Home Equity Loan Trust 2003-1 ............................. 4C. Procedural history of this lawsuit . .......................................................................... 7

111. ARGUMENT ........... .......................................................................................................... . 8A. Appellant's First Proposition of Law is not of public or great general interest

because Jordan does not harm prudent lenders or trustees who comply with thelaw . .......................................................................................................................... 8

B. Wells Fargo only suffered a private harm of having to refile its lawsuit ................ 9C. Appellant's Second Proposition of Law is not of public or great general interest

because Wells Fargo was not the payee on the Note when it filed the Complaintand never authenticated the Allonge ......................................................................11

W. CONCLUSION ................................................................................................................ .13

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TABLE OF AUTHORITIESCases

Adams u Madison Realty & Dev, Inc. (C.A.3, 1988), 853 F.2d 163,6 U.C.C. Rep.Serv.2d 732 .................................................................................................... 12HSBCBank USA, N.A. v. Charlevagne, 20 Misc.3d 1128(A), 2008 WL 2954767 .................... 7New Boston Coke Corp. v. Tyler (1987), 32 Ohio St.3d 216, 218, 513 N.E.2d 302 ..................11Northland Ins. Co. v. Illuminating Co. (11th Dist. 2004), 2004-Ohio-1529 ..............................11Ohio Pyro, Inc. v. Ohio Dept. of Commerce (2007), 115 Ohio St.3d 375,875 N.E.2d. 550, 2007-Ohio-5024, 27 ................................................................................11State ex rel. Academy ofTrial Lawyers v. Sheward (1999), 86 Ohio St.3d 451,

715 N.E.2d 1062, 1999-Ohio-123 .......................................................................................... 3State ex rel. Dallman v. Franklin Cty. Court of Common Pleas (1973),35 Ohio St.2d 176, 298 N.E.2d 515 ...................................................................................... 3State ex rel. Draper vWilder (1945), 145 Ohio St. 447, 62 N.E.2d 156 .................................. 10State ex rel. Park Inv. Co. v. Board of Tax Appeals (1972); 31 Ohio St. 2d 183,285 N.E.2d 356 . ................................................................................................................... 10Wells Fargo v. Byrd (1st Dist. 2008), 178 Ohio App.3d 285, 897 N.E.2d 722,2008-Ohio-4603 ................................................................................................................2, 11Wells Fargo u Jordan (8th Dist. 2009), 2009-Ohio-1092 ................................................. passimWilliamson v. Rubich (1960), 171 Ohio St. 253, 168 N.E.2d 876 .....................................1, 2, 11

StatutesI.R.C. 860D . .. ........................................................................................................................... 4R.C . 130 3.24 (A) (2) ................................................................................................................... 12

TreatisesTaxation of Securities Transactions Vol. 2, 13A.01 (2002) ..................................................... 4

Constitutional Provisions0. Const. Art. IV 2(B)(2)(e) ..................................................................................................... 1

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STATEMENT OF INTEREST OF AMICUS CURIAEThe Legal Aid Society of Cleveland, founded in 1905, is the law firm for low-income

families in Northeast Ohio. Legal Aid's mission is to secure justice and resolve fundamental

problems for those who are low income and vulnerable by providing high quality legal servicesand working for systemic solutions that empower those we serve. The attorneys of The LegalAid Society of Cleveland represent clients in civil law cases and primarily address issues ofconsumer law, housing law, domestic relations, immigration, community development, andissues of health, education, work and income. Defending consumers in foreclosure litigation isand has been a significant part of Legal Aid's practice, including settlement negotiations thatoften result in the reinstatement of loans. In that vein, The Legal Aid Society of Clevelandsubmits this amicus curiae brief because the issues that the lender proposes for the Court toaccept are not issues of public or great general interest. Rather, the issues are personal to thelender, are issues of settled law and/or Appellant's misreading of the record and settled law.

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I. STATEMENT OF WHY THIS CASE IS NOT OF PUBLIC OR GREAT GENERALINTEREST

A Thiscase is not of public or great general interest because it only affects trustees ofsecuritized trusts, like Wells Fargo, who do not comply with procedures set forth intheir filings to the Securities and Exchange Commission.The "sole issue for determination" before this Court is whether Wells Fargo's' appeal

"presents a question or questions of public or great general interest as distinguished fromquestions of interest primarily to the parties."2 Wells Fargo attempts to meet this standard byclaiming the appeal "presents two critical issues that will effect thousands ofpending andfutureforeclosure actions in Ohio common pleas courts."3 Neither claim is accurate.

Jordan is not a case of "public or great general interest" for anyone filing futureforeclosures. Prudent plaintiffs can comply with Jordan without penalty or increased costs byobtaining the notes and assignments of the mortgage before commencing suit instead ofafterwards.

Jordan is not a case of "public or great general interest" for lenders with pendingforeclosures but who never sold the borrower's loans. These lenders comply with Jordanbecause they never parted with the borrower's note and mortgage.

Jordan is not a case of "public or great general interest" for purchasers of mortgage loanswith pending foreclosures if those purchasers complied with the Pooling and ServicingAgreements that they submit to the Securities and Exchange Commission ("SEC"). Those

1. Wells Fargo is a trustee in this lawsuit. The Appellant's full name is "Wells Fargo Bank,N.A., Successor by Merger to Wells Fargo Bank Minnesota N.A. as Trustee f/k/a NorwestBank Minnesota N.A. as Trustee for the Registered Holders of Renaissance Home EquityLoan Asset Backed Certificate Series 2003-1."

2. O. Const. Art. IV 2(B)(2)(e); Williamson v. Rubich (1960), 171 Ohio St. 253, 254, 168N.E.2d 876, 877 (per curium).

3. Appellant's Memorandum in Support of Jurisdiction ("Appellant's Memorandum") atpage 1 (emphasis added).

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agreements set strict guidelines for immediately transferring notes and assignments of purchasedmortgages to a Trustee. In such cases, the Trustee will have had proof of assignment long beforefiling.

Conversely, Jordan is of private interest to purchasers of mortgage loans, such as theAppellant, who did not comply with their Pooling and Servicing Agreeinents. But even here,Jordan does not rise to "public or great general interest" because the Eighth Appellate Districtdismissed the case without prejudice. Wells Fargo has not lost any substantive rights. It can re-file tomorrow, an inconvenience for it, but not an issue of public or great general interest.B. This case is not of public or great general interest on the issue of whether a plaintiff

who holds a note when it files the Complaint but acquires the mortgage afterwardshas standing to sue because in this case Wells Fargo was not the payee on the Note.This Court has held that motions for discretionary appeals are like petitions for writs of

certiorari 4 As such, "whenever in the progress of the cause facts develop which if disclosed onthe application would have induced a refusal, the court may upon motion by a party or es meromotu dismiss the [motion]"5

Wells Fargo asks this Court to review whether an entity that properly obtained apromissory note on the secondary market before it files the lawsuit must also have an assignmentof the mortgage when it files the lawsuit. But those are not the facts here.

Wells Fargo concedes that a purchaser not holding the note and the mortgage when itfiled the complaint lacks standing to sue.6 The record does not support Wells Fargo's claim thatit had the Note before filing the lawsuit. The Note attached to the Complaint is payable toFunding Corporation ("Delta"). The affidavit attached to the Summary Judgment Motion only

4. Williamson, 171 Ohio St. at 254, 168 N.E.2d at 877.5. Id.,171 Ohio St. at 254-255, 168 N.E.2d at 877.6. Appellant'sMemorandum at page 12, discussing Wells Fargo v. Byrd ( 1 st Dist. 2008),

178 Ohio App.3d 285, 897 N.E.2d 722, 2008-Ohio-4603.

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authenticates the Note attached to the Complaint, the one without an affixed allonge; the affidavitdoes not authenticate the "Allonge" Wells Fargo claims gave it rights to enforce the Note.7

There is no question of public or great general interest even assuming Wells Fargo heldthe Note when it filed the Complaint. Wells Fargo errs when it claims that "standing" to proceedin a case can be waived. Whether an Ohio litigant has standing to sue another party over claimedprivate contractual rights is not a narrow technical issue, but one that addresses the basic powerof Ohio courts. In "the vast majority of cases brought by a private litigant, the question ofstanding depends upon whether the party has alleged such a personal stake in the outcome of thecontroversy, as to ensure that the dispute sought to be adjudicated will be presented in anadversary context and in a form historically viewed as capable of judicial resolution."'$ WellsFargo sued on rights that could only arise from the Mortgage, thus it lacked standing to foreclosewithout the mortgage.H. STATEMENT OF FACTS AND STATEMENT OF THE CASE.A. The original transaction between the Jordans and Delta Funding Corporation.

On January 3, 2003, Oties Jordan borrowed $75,000.00 from Delta at the usurious rate of9.240%.9 Mr. Jordan signed a promissory note ("Note") for this amount, payable to Delta.10 TheNote was secured by a mortgage Mr. Jordan and his wife signed on January 3, 2003." The

7. See 3 of the Affidavit of Jessica Dybas, attached to Wells Fargo's Motion for SummaryJudgment.8. State ex rel. Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 469, 715N.E.2d 1062, 1080, 1999-Ohio-123 (citations and internal quotations omitted); State exrel. Dallman v. Franklin Cty. Court of Common Pleas (1973), 35 Ohio St.2d 176, 178-179, 298 N.E.2d 515, 516

9. See Exhibit A of the Complaint.10. Id.11. See Exhibit B of the Complaint.

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Mortgagee was Mortgage Electronic Registration Systems, Inc. ("MERS"); MERS recorded themortgage on January 14, 2003.12 Neither the Note nor the Mortgage mentioned Wells Fargo.B Thecreation of "Renaissance Home Equity Loan Trust 2003-1"

Delta "bundled" Mr. Jordan's Note with 1,752 other mortgage notes and sold those notesto Renaissance Mortgage Acceptance Corporation. The Jordan's mortgage payments becamepart of a $258,551,000.00 public offering of securities issued as "Renaissance Home EquityLoan Trust 2003-1."13 This entity is a Real Estate Mortgage Investment Conduit ("REMIC").

A REMIC is defined in I.R.C. 860D. In broad tenns, a REMIC is an entity thatpurchases afixed pool of mortgage secured by real property and distributes the payments itcollects from the borrowers as mortgage-backed securities.14 An advantage of a REMIC is that itis generally not taxed for the mortgage payments it collects.15 As will be addressed below, aREMIC must meet strict guidelines, guidelines Wells Fargo wants this Court to ignore.

A critical document for a REMIC is the Pooling and Servicing Agreement.16 This is apublic document filed with the Securities and Exchange Commission. The Pooling and ServicingAgreement, in part, sets forth obligations to insure that a REMIC complies with the tax code,especially the closing date for acquiring mortgages.

In this case, the Pooling and Servicing Agreement was dated March 1, 2003. The partiesincluded Delta Funding Corporation, as Seller; Renaissance Mortgage Acceptance Corp., as

12. Id.13. Prospectus Supplement Dated March 18, 2003 at page 1. A copy is available at theSEC's Edgar Website located at

http://idea.sec.gov/Archives/edgar/data/1 1 64604/0000950 1 3 603 0006 1 0/file001.txt14. Fried, Martin L., Taxation ofSecuritie.r Transactions Vol. 2, 13A.01 (2002).15. Id.16. A copy of the Pooling and Servicing Agreement at issue in this case is available at the

SEC's Edgar Website located athttp://idea.sec.gov/Archives/edgar/data/ 1 223 792/000 1 1 623 1 803 000 1 5 8/psaa.htm

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Depositor; Ocwen Federal Bank FSB as Servicer; and, Wells Fargo Bank Minnesota, NationalAssociation, as Trustee.17 The Closing date was March 27, 2003.18 Wells Fargo Bank, N.A. wasnot involved in this transaction.

Delta should have delivered indorsed copies of Mr. Jordan's Note and the Assignment ofthe Jordan's Mortgage to Wells Fargo Bank Minnesota.

Section 2.01 of the Pooling and Servicing Agreement refutes Wells Fargo's complaintsabout the difficulty in obtaining the Note and Assignment before filing the Complaint. To thecontrary, Section 2.01 required Delta to deliver both the Note and an Assignment of theMortgage to Wells Fargo Bank Minnesota in March 2003.

Section 2.01(a). Conveyance of Initial Mortgage Loans.[T]he Seller shall deliver to, and deposit with, the Trustee ..., on or before theClosing Date, the following documents or instruments with respect to each InitialMortgage Loan...:(i) The original Mortgage Note, with all prior and intervening endorsements

showing a complete chain of endorsements from the originator of theMortgage Loan to the Person so endorsing the Mortgage Loan to theTrustee, endorsed by such Person "Pay to the order of Wells Fargo BankMinnesota, National Association, as Trustee for Renaissance HEL Trust2003-I without recourse" and signed ... in the name of the Seller by aResponsible Officer;

* *(iii) For each Mortgage Loan, the original Assignment of Mortgage in

recordable form, from the Seller in blank, or to "Wells Fargo BankMinnesota, National Association, as Trustee for Renaissance HEL Trust2003-1"19

17. Pooling and Servicing Agreement at page 1(emphasis added).18. Pooling and Servicing Agreement Section 1.01 ("Closing Date").19. Pooling and Servicing Agreement Section 2.01(a)(1) (emphasis added). A "Responsible

Officer" for Delta is its "President or any Vice President, Assistant Vice President or anySecretary or Assistant Secretary." Pooling and Servicing Agreement Section 1.01("Responsible Officer").

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The term "Assignment of Mortgage" was "an assignment, notice of transfer or equivalentinstrument, in recordable form, sufficient under the laws of the jurisdiction in which the relatedMortgaged Property is located to reflect the sale of the Mortgage to the Tnxstee."20

Wells Fargo Bank Minnesota could not claim ignorance of Delta's duty to deliver signeddocuments. The Pooling and Servicing Agreement required it as the Trustee to review the loanfiles to ensure the notes and assignments were properly executed:

[T]he Trustee ... shall certify ... that it has reviewed each Mortgage File and that,as to each Mortgage Loan listed in the related Mortgage Loan Schedule ... (i) alldocuments constituting part of such Mortgage File required to be delivered to itpursuant to paragraphs (i) - (v) and (vii) of Section 2.01(a)21 are in its possession,(ii) such documents have been reviewed by it and appear regular on their face andrelate to such Mortgage Loan ... accurately reflects infonnation set forth in theMortgage File. If within such 45-day period the Trustee or the Custodian onbehalf of the Trusteefinds any document constituting apart of a Mortgage Filenot to have been executed or received ... the Trustee ... shall promptly upon theconclusion of its review notify in the form of an exception report and theSeller.... Z Z

The Seller, Delta, had 90 days to deliver any missing notes or assigmnents and/or properlyexecute such documents. The Trustee had to review the files again 360 days after the closingdate and repeatedly thereafter until the Seller delivered the properly endorsed documents 23

In short, Wells Fargo Bank Minnesota should have reviewed its files repeatedly until itreceived properly endorsed Note and a properly executed Mortgage assignment from theJordans, to Delta, to Wells Fargo Minnesota as trustee.

20. Pooling and Servicing Agreement at Section 1.01 "Assignment of Mortgage" (emphasisadded).

21. Section 2.01(a) governs the endorsements of notes and assignments of mortgages.22. Pooling and Servicing Agreement at Section 2.02 (emphasis added).23. Pooling and Servicing Agreement at Section 2.02.

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C. Procedural history of this lawsuit.According to the Complaint, Mr. Jordan defaulted on the Note on or about March 1,

2007 24 Wells Fargo filed its Complaint on August 3, 2007. The attached Note was payable toDelta and MERS was the mortgagee on the Mortgage.25 On September 24, 2007, Wells Fargofiled a judicial report indicating that "the mortgage had been assigned to WFB on August 22,2007, nearly three weeks after it filed its Complaint."26

Also on September 24, 2007, Wells Fargo filed a "Notice of Filing Allonge to the Note."The Allonge was undated, signed by Scott Anderson - Vice President of Delta FundingCorporation.Z7 It was endorsed "Wells Fargo Bank, N.A., Successor by Merger to Wells FargoMinnesota, N. A., as Trustee for the Registered Holders of Renaissance Home Equity LoanAsset-Backed Certificates Series 2003-1."

On February 26, 2008, Wells Fargo moved for summary judgment. The affidavitattached to this motion stated that "the copies of the Promissory Note and Mortgage Deedattached to the Plaintiff's Complaint are true and accurate copies of the original instrumentsheld by Plaintiftj.]"28

24. Complaint at 1.25. See Exhibits A and B to the Complaint.26. Jordan, at 25.27. Scott Anderson has a reputation for being a Vice President of many companies. See

HSBC Bank USA,IV.A. v. Charlevagne, 20 Misc.3d 1128(A), 2008 WL 2954767 (Table).Scott Anderson most likely works for Ocwen. See the 10K for the trust in this case.http://idea.sec.gov/Archives/eduar/data/1223792/000105640404000970/nna03001 formlOk.txt. He signed for Ocwen.

28. See Paragraph 3 of Exhibit C to the Motion for Summary Judgment (emphasis added).

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On April 8, 2008, the magistrate granted Wells Fargo's motion for summary judgment 29On May 21, 2008, the trial court adopted the Magistrates decision. The Jordans appealed. TheEighth Appellate District reversed and remanded.III. ARGUMENT.A. Appellant's First Proposition of Law is not of public or great general interest

because Jordan does not harm prudent lenders or trustees who comply with the law.Wells Fargo claims Jordan "will effect thousands ofpending andfuture foreclosure

actions in Ohio common pleas courts.i30 This is not accurate.The following foreclosures cases will not be affected: (i) anyone filing a future

foreclosure, (ii) pending foreclosures filed by lenders who never sold the borrower's notes, and(iii) pending foreclosures filed by securitized trusts who complied with their pooling andservicing agreements submitted to the SEC.

First, Jordan does not bar parties from filing foreclosures in the future. Jordan requiresthat a plaintiff possess both the Note and the Mortgage before filing a lawsuit. This imposes nonew or unexpected burden because a lender or the trustee for a securitized trust must ultimatelyhave the Note and Mortgage.

Second, Jordan does not harm lenders who never sold the borrower's note or assigned themortgage. These lenders already have the documents needed to comply with Jordan.

Third, Jordan does not harm those trustees who complied with securities, bankruptcy, andtax law. As seen above in the discussion of the pooling and servicing agreement, theseagreements require a trustee of a REMIC to possess the notes and assignments of mortgagesbefore the closing date. Further, the trustee has an affxrmative duty to ensure the REMIC has

29. On that same day, the magistrate granted default judgment against defendant StayFocused, LLC.

30. Appellant's Memorandum at p. 1 (emphasis added).

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these documents. Thus, a trustee who complies with its respective Pooling and ServingAgreement has nothing to fear from Jordan. That trustee has the note and mortgage in handbefore filing a lawsuit.B. Wells Fargo only suffered a private harm of having to ref'^le its lawsuit.

This Court should not accept appeals addressing private concerns of the litigants. TheCourt of Appeals ordered the trial court to dismiss the case without prejudice. Thus, Wells Fargocould re-file tomorrow if it truly possesses the Note and the assignment of the mortgage. Thisminor inconvenience is not a matter of public interest.

This case is about when a lender should have the Note and Mortgage. In the Pooling andServicing Agreement submitted to the Securities and Exchange Commission, Wells Fargo'spredecessor stated it would obtain properly endorsed copies of the Jordan's Note and Mortgageno later than March 2003. Obtaining properly endorsed documents then was not a randompromise; it was required by the Internal Revenue Code. Wells Fargo Bank Minnesota did notfollow through on this promise.

Wells Fargo did not have the Jordans' Note or Mortgage because of its failure to complywith simple, but critically important, bookkeeping required by law and contract - not someabstract "industry practice" or "secondary market" it cites to this Court.

In essence, Wells Fargo asks this Court to hold that rescuing a multi-billion dollar bankfrom its own folly and faulty book-keeping rises to the level of public or great general interest. Itdoes not.

Before addressing the issue of standing, this Court should ignore Wells Fargo'sunsupported throwaway arguments. Wells Fargo fails to explain how Jordan will burdenRecorder's Offices. The Recorder's job of collecting the filing fee, stamping the assignment, andscanning it into the computer is the same whether the assignment is filed before or after filing.

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Wells Fargo's "current industry practice" argument cuts against it. Wells Fargo argues"[c]unent industry practice is that assignments of mortgage generally are not recorded until aborrower has defaulted and foreclosure is either on the horizon or is already underwaycommenced...... 31 In other words, nothing prevents lenders from obtaining the assignmentbefore the lawsuit is filed. Also, Wells Fargo tries to expand this beyond foreclosures. Butnothing in the Eighth Appellate District's opinion indicates it will apply to other securedtransactions.

A related argument is Wells Fargo's claim that Jordan will clog the "secondary market."This is erroneous for many reasons, including the following two. First, in a$258,551,000.00public offering Wells Fargo should have hired a few people to ensure it complied with thePooling and Servicing Agreement. Further, Wells Fargo provides no citations or proof backingits stateinents about the secondary market it made in the Appellant's Meinoranduin.

Finally, Wells Fargo raises the specter of collateral attack on prior judgments grantingforeclosure.'Z Wells Fargo cites no cases addressing a collateral attack on a confirmed sheriff'ssale. But more importantly, this question is not before the Court and thus is a request for anadvisory opinion, a request this Court should ignore. An advisory opinion is merely the opinionof a judge or judges of a court, which adjudicates nothing and is binding on no one.33 An Ohiocourt does not have "the constitutional or statatory authorization ... for the issuance of anadvisory opinion and this court, for sound legal reasons, has never issued advisory opinions."34

31. Appellant's Memorandum at p. 4 (emphasis added).32, Appellant's Memorandum at p. 5.33 . State ex rel. Draper v. Wilder (1945), 145 Ohio St. 447, 455, 62 N.E.2d 156, 160.34. State ex rel. Parklnv. Co. v. Board of Tax Appeals (1972), 31 Ohio St. 2d 183, 184, 285

N.E.2d 356, 357.

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C. Appellant's Second Proposition of Law is not of public or great general interestWells Fargo was not the payee on the Note when it filed the Complaint and neverauthenticated the Allonge.This Court has held that "whenever in the progress of the cause facts develop which if

disclosed on the application would have induced a refusal, the court may upon motion by a partyor ex mero motu dismiss" the motion to exercise jurisdiction.35 Here, Wells Fargo failed toestablish that it held the Note when it filed the lawsuit.

"Before an Ohio court can consider the merits of a legal claim, the person or entityseeking relief must establish standing to sue.i36 Importantly, a plaintiff's lack of standing isjurisdictional and not an issue that a defendant can waive.37

In Wells Fargo Bank, N.A. v. Byrd, the First Appellate District Court affirmed thedismissal of the foreclosure case for lack of standing because the plaintiff did not haveownership of the mortgage on the date the lawsuit was filed.38 The Byrd Court further observedthat Civil Rule 17 did not apply because the plaintiff lacked standing to commence the lawsuit inthe first place.39 The defect was jurisdictional and could not be cured by the subsequentassignment of the mortgage.4D The Eleventh Appellate District reached the same conclusion.41

35. Williamson, 171 Ohio St. at 254-255, 168 N.E.2d at 877.36. Ohio Pyro, Inc. v. Ohio Dept. qf Commerce (2007), 115 Ohio St.3d 375, 875 N.E.2d 550,

2007-Ohio-5024, 27.37. Northland Ins. Co. v Illuminating Co. (11th Dist. 2004), 2004-Ohio-1529, 17; see also,

New Boston Coke Corp. v. Tyler (1987), 32 Ohio St.3d 216, 218, 513 N.E.2d 302, 305.38. Byrd, 2008-Ohio-4603, at 16.39. Id.40. Id. at 23.41. Northland Ins. Co., 2004-Ohio-1529, at 117.

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Wells Fargo concedes a plaintiff lacks standing if it "acquired ownership of the notesometime after the case originated."42 It then claims "the uncontroverted evidence"demonstrates it held the Note when it filed the Complaint. 43

The facts state otherwise. The Note attached to the Complaint lists Delta as payee,44meaning Wells Fargo lacked standing when it filed the lawsuit.

Wells Fargo tried to avoid this by "filing" an Allonge on September 24, 2007, about sixweeks after filing the Complaint 45 This filing actually causes confusion, not clarity.

As a matter of substantive law, an allonge is an indorsement of a promissory note that ison a separate piece of paper. An allonge must be affixed to the note in order to be considered apart of the instrument.46 Thus, ifWells Fargo's Allonge was valid, then should it should havebeen attached to the Note attached to the Complaint. It was not.

As a matter of procedure, no one authenticated the September 24, 2007 Note with theAllonge attached. The affidavit attached to the Motion for Summary Judgment onlyauthenticates the Note attached to the Complaint 47 The "Allonge" was not affixed to the NoteWells Fargo attached to the Complaint.

Furthermore, filing a document with a trial court does not authenticate it. The Notice ofFiling is not a pleading, it was not a motion, it was not the type of evidence sanctioned underCiv. R. 56(E), nor was it a public record. Simply put, the "Plaintiff s Notice of Filing Allonge to

42. Appellant's Memorandum at p. 12.43. Id. (emphasis in the original).44. See Exhibit A to the Complaint.45. See Plaintiff's Notice of Filing Allonge to the Note, dated September 24, 2007.46. R.C. 1303.24(A)(2); for a detailed discussion about the requirement for attachment see

Adams v. Madison Realty & Dev, Inc. (C.A.3, 1988), 853 F.2d 163, 167-168, 6 U.C.C.Rep.Serv.2d 732.

47. See 3 of the Affidavit of Jessica Dybas, attached to Wells Fargo's Motion for SunnnaryJudginent.

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the Note" was a legal nullity. The record only supports the conclusion that Delta was the payeeof the Note.

Under the Civil Rules, Wells Fargo never established that it held the Note and neverestablished standing or even that it was the real party in interest.IV. CONCLUSION

This case is not of public or great general interest, only a private interest. Wells Fargocreated its own personal dilemma by not following its Pooling and Servicing Agreement and thenfailing to authenticate the Note with the Allonge affixed. Also, Wells Fargo suffered no harmbecause the dismissal was without prejudice. Therefore, Amicus Curiae Legal Aid Society ofCleveland asks this Court to deny the Appellant's Motion.

d G . S t r a is t r a i n Q l a s c l e

Phil Althouse (0051966)pdalthousena,lasclev. orgKatie I. Feldman (0081963)katie.feldmanQlasclev.orgMatthew Vincel (0084422)[email protected], Ohio 44113216-861-5198 (ph - direct)216-861-0704 (fax)Attorneys for Amicus CuriaeThe Legal Aid Society of Cleveland

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CERTIFICATE OF SERVICEOn July 6, 2009, a copy of the foregoing Brief of Amicus Curiae, The Legal Aid Society

of Cleveland, in Support ofAppellees Oties And Sylvia Jordan was served via regular mail upon:

Charles E. Ticknor, III, Esq.Martha Van HoyAsseff, Esq.Dinsinore & Shohl, LLP191 W . Nationwide Blvd, Suite 300Columbus, Ohio 43215Phillip C. Barragate, Esq.Benjamin D. Carnahan, Esq.Shapiro, Van Ess, Phillips & Barragate,1500 West Third Street, Suite 455Cleveland, Ohio 44113Counsel for Appellant,Wells Fargo N.A., Successor by Merger to Wells Fargo Bank Minnesota N.A. asTrustee f/k/a Norwest Bank Minnesota N.A. as Trustee for the Registered Holdersof Renaissance Home Equity Loan Asset Backed Certificate Series 2003-1.Oties Jordan, Jr.Sylvia Jordan960 East 78u' StreetCleveland, Ohio 44103Pro Se AppelleesStay Focused, LLCc/o Oties Jordan, Jr.960 East 78th StreetCleveland, Ohio 44103Appellee

Ho A qrd G. S t r21Y nOne of the Attorney _ for Amicus CuriaeThe Legal Aid Soci ty of Cleveland

wellsvjordan amicus

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