Professional Documents
Culture Documents
Now comes the Defendant, Santana Cline (“Defendant”) by and through Counsel, and
hereby submits her Motion for Relief from Judgment, Memorandum in Support, and Request for
Hearing as follows:
The Defendant moves the Court, pursuant to Civ. R. 60(B)(5), for relief from the
judgment and orders entered herein on or around January 24, 2008. The grounds for this Motion
MEMORANDUM IN SUPPORT
1
I. BACKGROUND FACTS
Defendant executed a promissory note (the “Note”) and mortgage (the “Mortgage”) in
favor of CBSK Financial Group, Inc. (“CBSK”) on April 5, 2006. Mortgage Electronic
Registration Systems, Inc. (“MERS”) was listed as nominee of the lender, CBSK in the
Mortgage. MERS was not listed at all in the Note. After a dispute arose in the payments on the
loan, on March 13, 2007, Plaintiff, HSBC Bank USA N.A. filed the Complaint. The Complaint
had a copy of the Mortgage attached to it, but did not have a copy of the Note attached to it.
There were no assignments of the Mortgage attached, meaning that there was no connection
whatsoever in the exhibits to the Complaint between Plaintiff and the mortgage obligation.
On December 28, 2007, Plaintiff filed its Motion for Summary Judgment. In that
Motion, Plaintiff alleged it was the “holder” of the Note. Attached to that Motion were several
Affidavits, both supposedly executed by one Jessica Dybas (“Dybas”). The first Affidavit, titled
Despite the above assertion, no copy of the Note was even attached to the Complaint.
The second Affidavit was called “Affidavit as to Lost Note” (“ALN”).2 This Affidavit,
1
For ease of reference, a copy of this Affidavit is attached hereto as “Exhibit A”.
2
A copy of this Affidavit is attached hereto as “Exhibit B”.
2
Obviously, this statement is in irreconcilable conflict with the statement made by Dybas in the
Also attached to the Motion for Summary Judgment was an Assignment of Mortgage
supposedly signed by one Scott Anderson (“Anderson”) as “Vice President” of MERS on March
14, 2007, a day after the Complaint was filed (“the First Assignment”). 3 The First Assignment
was recorded by the Franklin County Recorder on April 13, 2007. The First Assignment
purportedly assigned the Mortgage, along with the Note, from MERS to Plaintiff.
Second Assignment was supposedly signed by Anderson on January 5, 2009, but allegedly was
entered into almost three (3) years earlier, on May 14, 2006.
Of course, the effective date of the Second Assignment predates the filing of the
Complaint, yet was not executed until years later. In all other respects, the Two Assignments are
the same. These facts lead one to wonder if the purpose of the Second, backdated Assignment
was made to eliminate any question regarding the Court’s jurisdiction to hear this case since the
First Assignment was not executed, with an effective date after the filing of the Complaint
herein.6
3
A copy of this Assignment is attached hereto as “Exhibit C”.
4
A copy of this Assignment is attached hereto as “Exhibit D”.
5
See Affidavit of Counsel attached hereto as “Exhibit E”
6
It is noteworthy that the Second Assignment was filed for record on March 9, 2009, the
same day as the Cuyahoga County Court of Appeals decided Wells Fargo v. Jordan, 2009-
Ohio-, holding that a foreclosing party must demonstrate that it is the real party in interest
at the time the complaint is filed in order to invoke the jurisdiction of the court.
3
The Second Assignment (again, only produced long after the foreclosure judgement was
rendered) is noteworthy for purpose here for yet another reason. That is because Anderson
supposedly signed it almost three (3) years after it was entered into. This fact is another
indication that Anderson is a robo signer, and that the Assignments are fraudulent!
Finally, on or about December 27, 2007, Plaintiff filed its Motion to Incorporate
Mortgage Note. In that Motion, Plaintiff stated that; “…counsel recently obtained the Mortgage
from CBSK to any other party. Based on this evidence, the Court granted Summary Judgment in
However, the information only recently coming to light, it appears that Dybas and
Anderson were “robo-signers.” Robo-signers are individuals whose sole job responsibility is to
sign affidavits, assignments of mortgage and other legal documents used in foreclosures en
masse so that homeowners can be removed from their homes by banks as quickly and cheaply as
possible. Affidavit of Counsel, “Exhibit E”. Robo-signers may sign thousands of such
documents per month, including affidavits attested to be made of personal knowledge. Id.
Because they are required to sign so many documents in order to effectuate cost savings
for the banks, robo-signers do not even read documents containing critical statements in the
documents that they sign. Id. Rather, the typical robo-signer simply attests under oath that he or
she has personal knowledge of the statements made, and swears that those statements are true
and accurate without even having read the document. Id. In addition, in the rush to generate
these documents, the robo-signer will generally sign the document outside the presence of the
7
A copy of this Motion is attached hereto as “Exhibit F”.
4
In a case involving GMAC, a Maine Court recently found that the use of a robo-signer in
a foreclosure action constituted a “high volume and careless approach” toward the judicial
system. That Court disregarded the subject affidavit, and ordered sanctions against GMAC. See
Federal National Mortgage Association v. Bradbury, Bridgton, Maine District Court Docket No.
BRI-RE-09-65, Order of September 24, 2010, attached hereto as “Exhibit G.” Even more
recently, the Ohio Attorney General filed an Action on behalf of the Citizens of Ohio in the
Lucas County, Common Pleas Court seeking injunctive relief and damages on account of these
same practices. A copy of that Complaint, without attachments, is attached hereto as “Exhibit
H.”
The belief that Dybas and Anderson are robo-signers is supported by, among other
things, a decision rendered by the New York Supreme Court in another case involving HSBC
and Ocwen. In HSBC Bank USA, N.A. v. Valentin, 2008 NY Slip Op 52167(U) [21 Misc 3d
5
West Palm Beach, Florida 33409, and sworn to before Doris
Chapman, a Florida Notary Public. The Court is troubled that Mr.
Anderson acted as both assignor of the instant mortgage loan, and
then as the Vice President of Ocwen, assignee HSBC’s servicing
agent. He admits to this conflict, in ¶ 13, stating that ‘[w]hen the
loan went into default and then foreclosure in 2007, Ocwen, in it
capacity as servicer, elected to remove the loan from the MERS
system and transfer title to HSBC.’ The stockholders of HSBC
and the noteholders of the Trust probably are not aware that Mr.
Anderson, on behalf of the servicer, Ocwen, claims to have the
right to as sign ‘toxic’ nonperforming mortgage loans to them. It
could well be that Ocwen’s transfer of the instant nonperforming
loan, as well as others, is part of what former Federal Reserve
Board Chairman Alan Greenspan referred to in his October 23,
2008 testimony, before the House Oversight Committee, as ‘a once
in a century credit tsunami.’ (emphasis added).
6
between HSBC, Ocwen Federal Bank, FSB (OCWEN), Deutsche
Bank and Goldman Sachs, who all seem to share office space at
1661 Worthington Road, Suite 100, West Palm Beach, Florida
33409 (Suite 100).
…Plaintiff’s moving papers for an order of reference fails to
present an “affidavit made by the party,” pursuant to CPLR §
3215(f). The application contains an April 23, 2007-affidavit by
Jessica Dybas, who states that she is “a Foreclosure Facilitator of
OCWEN LOAN SERVICING, LLC, servicing agent and attorney
in fact to the holder of the bond and mortgage sought to be
foreclosed herein.” On that date, the note and mortgage were still
held by MERS, as nominee of Delta Funding Corporation. For
reasons unknown to the Court, MERS, as nominee of Delta
Funding Corporation, or plaintiff HSBC failed to provide any
power of attorney authorizing OCWEN to go forward with the
instant foreclosure action.
Further, even if HSBC authorized OCWEN to be its attorney in
fact, Ms. Dybas is not an officer of OCWEN. She is a ‘Foreclosure
Facilitator,’ a job title unknown to this Court. Therefore, the
proposed order of reference must be denied without prejudice.
…Additionally, plaintiff HSBC must address a third matter if it
renews its application for an order of reference. In the instant
action, as noted above, Scott Anderson, as Vice President of
MERS, assigned the instant mortgage to HSBC on May 1, 2007.
Doris Chapman, the Notary Public, stated that on May 1, 2007,
‘personally appeared Scott Anderson, of 1661 Worthington Road,
Suite 100, West Palm Beach, Florida 33409.’ In HSBC Bank,
N.A. v. Cherry, at 3, I observed that: Scott Anderson, in his
affidavit, executed on June 15, 2007, states he is Vice President of
OCWEN. Yet, the June 13, 2007 assignment from MERS to HSBC
is signed by the same Scott Anderson as Vice President of MERS.
Did Mr. Anderson change his employer between June 13, 2007 and
June 15, 2007. The Court is concerned that there may be fraud on
the part of HSBC, or at least malfeasance. Before granting an
application for an order of reference, the Court requires an
affidavit from Mr. Anderson describing his employment history for
the past three years. Lastly, the court notes that Scott Anderson, in
the MERS to HSBC assignment gave his address as Suite 100.
This is also the address listed for HSBC in the assignment. In a
foreclosure action that I decided on May 11, 2007 (Deutsche Bank
Nat. Trust Company v. Castellanos, 15 Misc.3d 1134[A] ),
Deutsche Bank assigned the mortgage to MTGLQ Investors, L.P. I
noted, at 4-5, that MTGLQ Investors, L.P.: According to Exhibit
21.1 of the November 25, 2006 Goldman Sachs 10-K filing with
the Securities and Exchange Commission … is a “significant
subsidiary” of Goldman Sachs…. [T]he January 19, 2007
7
assignment has the same address for both the assignor Deutsche
Bank and the assignee MTGLQ Investors, L.P., at 1661
Worthington Road, Suite 100, West Palm Beach, Florida 33409.
The Court will not speculate about why two major financial
behemoths, Deutsche Bank and Goldman Sachs share space in a
West Palm Beach, Florida office suite In the instant action, with
HSBC, OCWEN and MERS, joining with Deutsche Bank and
Goldman Sachs at Suite 100, the Court is now concerned as to why
so many financial goliaths are in the same space. The Court
ponders if Suite 100 is the size of Madison Square Garden to house
all of these financial behemoths or if there is a more nefarious
reason for this corporate togetherness.
If HSBC seeks to renew its application for an order to reference,
the Court needs to know, in the form of an affidavit, why Suite 100
is such a popular venue for these corporations.
…Plaintiff has failed to submit ‘proof of the facts’ in ‘an affidavit
made by the party.’ The affidavit is submitted by Jessica Dybas, ‘a
Foreclosure Facilitator of OCWEN LOAN SERVICING, LLC,
servicing agent and attorney in fact to the holder of the bond and
mortgage sought to be foreclosed herein.’ There must be an
affidavit by an officer of HSBC or a servicing agent, possessing a
valid power of attorney from HSBC for that express purpose.
Additionally, if a power of attorney is presented to this Court and it
refers to pooling and servicing agreements, the Court needs a
properly offered copy of the pooling and servicing agreements, to
determine if the servicing agent may proceed on behalf of plaintiff.
(EMC Mortg. Corp. v. Batista, 15 Misc.3d 1143(A) [Sup Ct, Kings
County 2007]; Deutsche Bank Nat. Trust Co. v. Lewis, 14 Misc.3d
1201(A) [Sup Ct, Suffolk County 2006] ).
The Court will grant plaintiff HSBC an order of reference when it
presents: an affidavit by either an officer of HSBC or someone
with a valid power of attorney from HSBC, possessing personal
knowledge of the facts; an affidavit from Scott Anderson clarifying
his employment history for the past three years and what
corporation he serves as an officer; and, an affidavit by an officer
of HSBC explaining why HSBC would purchase a nonperforming
loan from Delta Funding Corporation, and why HSBC, OCWEN,
MERS, Deutsche Bank and Goldman Sachs all share office space
in Suite 100.” (emphasis added) HSBC Bank USA, N.A. v.
Valentin Slip Copy, 18 Misc.3d 1123(A), 2008 WL 239932
(N.Y.Sup.), 2008 N.Y. Slip Op. 50164(U) (emphasis added).9
Further supporting the belief that Anderson is a robo-signer, is the response to the
plaintiff’s request for admission in Davis v. Home American Credit, Inc., Case No. 1:09-cv-
9
A copy of this decision is attached hereto as “Exhibit J”.
8
1462-TCB (United States District Court for the Northern District of Georgia), wherein Ocwen
admitted that Anderson often did not sign the documents that he was purported to have; rather,
other Ocwen employees did.10 These requests and responses read as follows:
“1) Scott Anderson did not personally place his signature or mark
on the Assignment of deed to secure debt attached as Exhibit A.
Thus it appears that this entire Action was contaminated by the fraud. As a result of that
fraud, Plaintiff obrtained an order of foreclosure against the Residence. As demonstrated below,
not only in the interests of justice and fairness to Defendant, but also in protecting its own
10
A copy of these requests for admission are attached hereto as “Exhibit K”.
9
integrity, this Court cannot permit Plaintiff to benefit from its own fraud, and must se the
In order to prevail on a motion for relief from judgment pursuant to the foregoing Rule, a movant
must demonstrate the following: the existence of a meritorious claim or defense, entitlement to
relief under one of the grounds stated in Civ. R. 60(B)(1) through (5), and timeliness of the
motion. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146.
Even though Ohio courts are granted broad discretion in deciding Civ R. 60(B) motions,
they must be mindful of the long-standing admonition that cases are to be decided on their merits
and not on procedural grounds. Marion Production Credit Association v. Cochran, 40 Ohio St.
3d 265, 271; 533 N.E.2d 325; 1988 Ohio LEXIS 458. As demonstrated below, each of the
elements under the GTE Automatic Electric Rule have been satisfied, and therefore, Defendant’s
Motion for Relief from Judgment should be granted. Further, if “the movant files a motion for
relief from judgment and it contains allegations of operative facts which would warrant relief
under Civil Rule 60(B), the trial court should grant a hearing to take evidence and verify these
facts before it rules on the motion.” Coulson v. Coulson (1983), 5 Ohio.St.3d 12, 16. See Also,
10
U.B.S. – Real Estate Securities, Inc. v. Teague, 2010-Ohio-5634 (C.A. Second Dist, dec.
11/19/10).
In considering whether a party has a meritorious defense, one necessarily must consider
whether there are any grounds which may have prevented judgment under an established legal
doctrine, that is, whether a defense goes “to the merits, substance, or essentials of the case.”
Wayne Mut. Ins. Co. v. Marlow (June 5, 1998), Montgomery App. No. 16882, citing Black’s
Law Dictionary, abridged (6 Ed. Rev. 1991). Further, Defendant is only required to allege the
existence of such a defense; she is not required to demonstrate that she will succeed on the merits
In determining whether Defendant can demonstrate that she has a meritorious defense to
this Action, it is necessary to consider whether Plaintiff met its burden of demonstrating that
there is no issue of material fact with regard to whether it was the proper party to assert the claim
in the first place; in other words, whether it had standing. The Ninth District Court of Appeals
recently had the opportunity to speak again as to the well recognized standard by which a trial
court must review a summary judgment motion. In that case, U.S. Bank, N.A. v. Richards, 2010
– Ohio – 3981(Ct. App. 9th Dist., dec. 8/25/10), the Court stated:
11
Applying this standard, the Richards Court reversed the trial court’s award of summary
judgment ordering foreclosure against the defendant-homeowner’s property. Based on the newly
discovered fraud perpetuated by the Plaintiff in the form of the crucial documents allegedly
signed by Dybas and Anderson, this Court is compelled to act likewise and grant Defendant’s
When ruling on a motion for summary judgment, a court may consider evidence that
complies with Civ.R. 56. Civ.R. 56(C) provides that “pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and
written stipulations of fact” are properly considered when a court rules on a motion for summary
judgment. With regard to affidavits, Civ.R. 56(E) provides that “affidavits shall be made on
personal knowledge, shall set forth such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.”
Further, sworn or certified copies of all papers referred to in an affidavit shall be attached to or
served with the affidavit.” See, also, Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d
Thus, the Rule sets forth three (3) distinct requirements which must be met before a Court
can properly consider an affidavit in connection with a summary judgment motion. 1) it must be
made on personal knowledge; 2) it must set forth facts admissible in evidence (i.e. non-hearsay);
12
“3….copies of the Promissory Note and Mortgage Deed attached
to Plaintiff’s Complaint are true and accurate copies of the original
instruments held by Plaintiff;…
Contrary to Dybas’ statement in Pargraph 3, no copy of the Note was attached to the Complaint,
clearly indicating that she did not even look at the document she was trying to authenticate.
Further her statement in Paragraph 5 that she had personal knowledge of the facts to which she
was attesting. The ALN only adds to the mystery. Therein, Dybas states as follows:
This Affidavit, indicating that the Note has been lost, was signed by Dybas a month and a half
before the AST, wherein she unequivocally stated that Plaintiff held the original Note.
These two Affidavits are clearly irreconcilable with each other. Under Civ.R. 56(E),
Affidavits are to be made on personal knowledge. Further, under the Rule, it is the duty of the
Plaintiff to “show affirmatively that affiant is competent to testify to the matters stated in the
affidavit.” Because the two Affidavits supposedly signed by Dybas that were submitted to the
Court clearly contradict each other, Dybas’s testimony was speculative, and should have been
correctly disregarded by the trial court. See Carter v. U-Haul Internatl., 10th Dist. No. 09AP-
More importantly for purposes here, given the recent news about behemoth financial
institutions such as Plaintiff’s regular use of robo-signers, it has been discovered that Dybas’
Affidavit was disregarded by a Court in New York because her testimony was considered
13
inadequate to prove that HSBC was the proper party to bring that foreclosure action. The Court
stated that:
As with the Court in New York, given the recently discovered information regarding Dybas’
proclivity to sign affidavits wearing a number of corporate hats it now appears likely that, as a
“Foreclosure Facilitator” of Ocwen, Dybas did not have the “personal knowledge” required
under Rule 56(E), and that she was not “competent to testify to the matters stated in the
affidavit.”
Because the Affidavit now appears to have been improperly considered by the Court,
summary judgment should not have been rendered. This is so since unauthenticated materials
are inadmissible. Evid.R. 901(A); see, also, U.S. Bank N.A. v. Richards, 9th Dist. No. 25052,
Dybas’s affidavits did not properly come into evidence. Absent this evidence, Plaintiff failed to
meet its burden of proving that it was the holder of the Note and Mortgage, and therefore that it
was the real party in interest. Thus Defendant has demonstrated a meritorious defense on this
ground alone.
14
3. THE RECENTLY DISCOVERED SECOND ASSIGNMENT VITIATES THE
EFFECTIVENESS OF FIRST ASSIGNMENT, WHICH WAS CONSIDERED
BY THE COURT IN GRANTING SUMMARY JUDGMENT.
Here, Plaintiff submitted the First Assignment, supposedly signed by Anderson as “Vice
President” of MERS on March 14, 2007, one (1) day after the Complaint was filed. Only
recently did the Second Assignment surface. That Assignment, backdated to a day before the
Complaint was filed, was supposedly signed by Anderson almost three (3) years after its
effective date. Here again, it appears that a critical document leading the foreclosure order, the
First Assignment, was not properly considered by this Court, constituting yet another meritorious
defense.
In addition, Ocwen admitted in a deposition that other people signed Scott Anderson’s
names to Assignments of Mortgages. “Exhibit ___”, supra. There are several different
variations of Scott Anderson’s signature, which further establishes that several people signed
were executed in Florida. Under Florida Statute 701.02(2), the rule states:
15
equity against creditors or subsequent purchasers for a valuable
consideration without notice, unless a duly executed assignment be
recorded according to law.”
This rule is similar to that in Ohio. Under O.R.C. 5301.01, the rule states:
If Scott Anderson did not sign either of the Assignments of Mortgage purporting to transfer the
Mortgage from MERS to Plaintiff, then the Assignments were not properly executed. As stated
above, a mortgage shall be signed before a notary public “who shall certify the
acknowledgment.” Thus, if Scott Anderson did not sign the Assignment of Mortgages in
question, those Assignments are void because they were not signed by Anderson in a notary’s
presence. It is Plaintiff’s duty to establish that Anderson actually signed the Assignments in
question. Since Plaintiff’s own agent, OCWEN, publically admitted that Anderson did not sign
his own name, both Assignments appear to be invalid, and could not have been considered by th
Further, it appears that OCWEN, Plaintiff’s servicing agent, violate notary laws in its
robo signing approach with Anderson. Under Chapter 117.05(5) of the 2010 Florida Statute
reads,
16
other form of identification, upon which the notary public is
relying.” (emphasis added)
Ohio law is similar. Under the O.R.C. 147.53, the rule states:
Again, this forms yet another meritorious defense justifying relief from the summary judgment.
In the case cited above, HSBC Bank USA, N.A. v. Valentin, Slip Copy, 18 Misc.3d
1123(A), 2008 WL 239932 (N.Y.Sup.), 2008 N.Y. Slip Op. 50164(U). the Court stated:
17
affidavit from Mr. Anderson describing his employment history for
the past three years. (emphasis added)
Robo-signers working for different entities has become a concern in several other courts. In
Bank of NY v. Mulligan, 2008 NY Slip Op 31501 (June 3, 2008). In that case, the court stated:
This view was repeated in HSBC Bank USA v. Perboo, 2008 NY Slip Op 51385 (U), 20
18
March 13, 2007 to March 14, 2007, and again from September 28,
2007 to December 14, 2007? The Court is concerned that Mr.
Parisi might be engaged in a subterfuge, wearing various corporate
hats. Before granting an application for an order of reference, the
Court requires an affidavit from Mr. Parisi describing his
employment history for the past three years.” (emphasis added)
Because Anderson signed the recorded Previous Assignment on behalf of MERS on March 14,
2007, yet on June 15, 2007 signed on behalf of Ocwen as Vice President (as stated in the case
above), a serious question exists as to whether Anderson had the legal capacity to sign the
Assignments. This question constitutes another basis for finding that Defendant has established
a meritorious defense.
In a thorough analysis of the law in this area, Franklin County Court of Appeals
addressed the proof needed for a foreclosing party to establish standing. In that case, Everhome
Mortgage Company v. Rowland, 2008 – Ohio – 1282 (Ct. App. 10th Dist, dec. 3/20/08), the
Court stated:
19
issue of material fact that precluded summary judgment. Id. at
679-680.
Similarly, in Washington Mut. Bank, F.A. v. Green (2004),
156 Ohio Appp.3d 461, the Seventh District Court of Appeals
reversed the trial court’s finding of summary judgment where the
plaintiff failed to prove that it was the holder of the note and
mortgage. There the defendant executed a note and mortgage in
favor of Check ‘n Go Mortgage Services, not Washington Mutual
Bank, F.A. Although Washington Mutual Bank, F.A. submitted an
affidavit alleging an interest in the note and mortgage, it did not
state how or when it acquired that interest. Id. at 467. The court
concluded that this lack of evidence defeated the purpose of Civ.R.
17(A) by exposing the defendant to the danger that multiple
‘holders’ would seek foreclosure based upon the same note and
mortgage. Id.
In the case at bar, the note and mortgage identify
TrustCorp– not Everhome–as the lender. Therefore, Everhome
needed to present the trial court with other evidence to prove its
status as the current holder of the note and mortgage. To
accomplish this, Everhome relied upon the affidavit testimony of
Becky North, an Everhome officer. In her affidavit, North stated
that ‘the copies of the Promissory Note and Mortgage Deed
attached to Plaintiff’s Complaint are true and accurate copies of the
original instruments held by Plaintiff.’ (Emphasis added.) Beyond
this tangential reference, North’s affidavit contains no further
averments regarding Everhome’s interest in the note and mortgage.
We conclude that North’s testimony is insufficient to
establish that Everhome is the current holder of the note. First,
Everhome failed to attach the note to its complaint. Thus, North’s
statement does not prove anything with regard to the note, much
less that Everhome currently holds the note. Second, North does
not specify how or when Everhome became the holder of the note
and mortgage. Without evidence demonstrating the circumstances
under which it received an interest in the note and mortgage,
Everhome cannot establish itself as the holder.” Id. at pp. 4-5.
(emphasis added)
Without qualified evidence establishing it was the holder of the Note, Plaintiff could not
have made the requisite showing that it was the holder of the Note. In turn, without that
evidence, Plaintiff should not have been awarded summary judgment. Thus, Defendant has
established a meritorious defense, and has met the first prong of the GTE Automatic test.
20
C. DEFENDANT IS ENTITLED TO RELIEF UNDER THESE GROUNDS SET
FORTH IN CIV. R. 60(B)(5)
Ohio Civ. R. 60(B)(5) provides a party against whom a judgment has been entered a
remedy in instances when there is “any other reason [not listed under Ohio Civ. R. 60(B)(1)
through Ohio Civ. R. 60(B)(4)] justifying relief from judgment.” Ohio Courts have interpreted
this rule as a “catch-all provision that reflects the inherent power of a Court to relieve a party
from the unjust operation of a judgment.” Caruso-Ciresi Inc. v. Lohman (1983) 5 Ohio St.3d
64). Further the Courts have reasoned that Civ. R. 60(B)(5) “is only utilized ‘in an extraordinary
and unusual case when the interests of justice warrant it.’” Adomeit v. Baltimore (1974), 29
Ohio App. 2d 97, 105. One of the situations where justice warrants relief from judgment under
In Coulson v. Coulson (1983), 5 Ohio St.3d 12, 15, the Supreme Court of Ohio
21
‘It is generally agreed that.. [a]ny fraud connected with the
presentation of a case to a court is a fraud upon the court, in a
broad sense.’ 11 Wright & Miller, Federal Practice and Procedure
(1973) 253, Section 2870. Thus, in the usual case, a party must
resort to a motion under Civ. R. 60(B)(3). Where an officer of the
court, e.g., an attorney, however, actively participates in
defrauding the court, then the court may entertain a Civ. R. 60(B)
(5) motion for relief from judgment. See Toscano,
supra.”(emphasis added).
This distinction is critical for purposes of a Civ.R. 60(B) analysis. In Coulson, supra, the
Supreme Court of Ohio expressly held that when the alleged fraud occurred between the parties,
Civ.R. 60(B)(3) is the only ground by which a party can seek relief from a prior judgment.
However, in relation to a fraud perpetrated upon the trial court, the Coulson court held that such
a fraud can be a proper basis for seeking relief from judgment under Civ.R. 60(B)(5).
Here, Plaintiff submitted Affidavits and an Assignment of Mortgage which were clearly
meant to convince the Court it had the right to foreclose on Defendant’s residence and take away
her ownership rights. This “high volume and careless approach” should no more be
countenanced by this Court than it was by the court in Bradbury Budgton.. From the evidence
that has recently come to light, it appears the Affidavits and Current Assignment presented in
this case were illegal, and fraudulent. These new facts place this matter squarely in the category
where the judicial machine has been disrupted, and are “extraordinary and unusual.” Certainly
these facts constitute grounds whereby the interests of justice not only justify, but demand, relief.
This Court should not allow fraud to be committed on it, and certainly should not permit Plaintiff
to be rewarded on account of its own with their fraud. Thus, the second prong of the GTE
22
The Civ.R. 60(B) one-year limitation does not apply to a motion made under subsection
(B)(5); instead, a motion made under that provision is allowable if it is made within a reasonable
time. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146. The judgment from
which Defendant seeks relief was granted on November 13, 2008. However, only recently when
all the news about robo-signers came to light did the world, much less Defendant, become aware
that false and fraudulent documents were regularly being used by securitized lenders such as
Further, it was only when OCWEN made the damaging admission that other people
signed documents for Anderson did anyone outside Plaintiff’s walls knew it employed
systematic fraud in prosecuting foreclosures. To allow the judgment to stand on the issue of
timeliness would in effect be allowing Plaintiff to benefit from its own fraud. Clearly, under
these circumstances, Defendant has acted within a reasonable time in bringing this Motion, and
the third and final prong of the GTE Automatic test has been satisfied.
III. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Relief from Judgment should be
granted.
Defendant hereby requests an evidentiary hearing in this matter. Under Ohio law, if a
“movant files a motion for relief from judgment and it contains allegations of operative facts
23
which would warrant relief under Civil Rule 60(B), the trial court should grant a hearing to take
evidence and verify these facts before it rules on the motion.” Coulson v. Coulson (1983), 5
Ohio.St.3d 12, 16, quoting Adomeit, 39 Ohio App.2d at 105. Here, Defendant has filed the
instant Motion containing allegations of operative facts, each of which would warrant relief,
under Ohio Civ. R. 60(B). Therefore, Defendant should be granted a hearing to present
witnesses and argue the merits of her Motion for Relief from Judgment.
___________________________________
Daniel L. McGookey (Reg. No.
0015771) Richard Barry Hardy III (Reg. No.
0068067) Lauren McGookey (Reg. No.
0086407) McGOOKEY LAW OFFICES, LLC
Counsel for Defendant
Santana Cline
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Motion for Relief was served on this ____ th
___________________________________
Daniel L. McGookey (Reg. No. 0015771)
Richard Barry Hardy III (Reg. No. 0068067)
Lauren McGookey (Reg. No. 0086407)
McGOOKEY LAW OFFICE, LLC
Counsel for Defendant
Santana Cline
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