OR(GINAL

IN THE SUPREME COURT OF OHIO

Wells Fargo Bank, N.A., Successor by Case No. 09-1030

Merger to Wells Fargo Bank Minnesota,
NA, as Trustee, f/n/a Northwest Bank
Minnesota, N.A., as Trustee for the On Appeal from the Cuyahoga
Registered holders of Renaissance Home County Court of Appeals, Eighth
Equity Loan Asset-backed Certificates, Appellate District
Series 2003-1,

Appellant Court of Appeals Case No

CA-08-91675
Vs.

Oties Jordan aka Oties Jordan, Jr., et al., ) JUL 06 2009

)
Appel.lees ) CLERK OF COURT
SUPREME COURT OF OHIO

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) Charles E. Ticknor, III (0042559)

howard. strain(cd,lasclev. org Martha Van Hoy Asseff (0078502)
Phil Althouse (0051956) Dinsmore & Shohl, LLP
ndalthousen,lasclev.org 191 W. Nationwide Blvd, Suite 300
Katie I. Feldman (0081963) Columbus, Ohio 43215
Katie.FeldmanPlasclev.org (614) 221-8448
Matthew Vincel. (0084422) (614) 221-8495 (fax)
mvincelna lasclev.ore cticknor@dinslaw.com
The Legal Aid Society of Cleveland masseff@dinslaaw.coin
1223 West Sixth Street
Cleveland, Ohio 44113 Phillip C. Barragate (0063017)
(216) 687-1900 Benjamin D. Carnahan (0079737)
(216) 861-0704 (fax) Shapiro, Van Ess, Phillips & Barragate,
1500 West Third Street, Suite 455
Counsel, for Amicus Curiae Cleveland, Ohio 44113
The Legal Aid Society of Cleveland (216) 373-3131
(847) 627-8805 (fax)
Oties Jordan, Jr. bcamahanc^,LOGS. com
Sylvia Jordan
960 East 78`' Street Counsel for Appellant, Wells Fargo
Cleveland, Ohio 44103 Bank, N.A., as Trustee

Pro Se Appellees
Stay Focused, LLC
c/o Oties Jordan, Jr.
960 East 78' Street
Cleveland, Ohio 44103

Appellee
 TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................................................. ii.

STATEMENT OF INTEREST OF AMICUS CURIAE ........... ........................................ iii.

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

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

A. 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 set
forth 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 a
plaintiff who holds a note when it files the Complaint but acquires the mortgage
afterwards has standing to sue because in this case Wells Fargo was not the payee
on the Note .. ............................................................................................................ 2

II. STATEMENT OF FACTS AND STATEMENT OF THE CASE ..................................... . 3

A. The original transaction between the Jordans and Delta Funding Corporation...... 3

B. The creation of "Renaissance Home Equity Loan Trust 2003-1 ............................. 4

C. Procedural history of this lawsuit . .......................................................................... 7

111. ARGUMENT ........... .......................................................................................................... . 8

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 . .......................................................................................................................... 8

B. Wells Fargo only suffered a private harm of having to refile its lawsuit ................ 9

C. 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 Complaint
and never authenticated the Allonge ......................................................................11

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

i
 TABLE OF AUTHORITIES

Cases

Adams u Madison Realty & Dev, Inc. (C.A.3, 1988), 853 F.2d 163,
6 U.C.C. Rep.Serv.2d 732 .................................................................................................... 12

HSBCBank USA, N.A. v. Charlevagne, 20 Misc.3d 1128(A), 2008 WL 2954767 .................... 7

New Boston Coke Corp. v. Tyler (1987), 32 Ohio St.3d 216, 218, 513 N.E.2d 302 ..................11

Northland Ins. Co. v. Illuminating Co. (11th Dist. 2004), 2004-Ohio-1529 ..............................11

Ohio Pyro, Inc. v. Ohio Dept. of Commerce (2007), 115 Ohio St.3d 375,
875 N.E.2d. 550, 2007-Ohio-5024, ¶27 ................................................................................11

State ex rel. Academy ofTrial Lawyers v. Sheward (1999), 86 Ohio St.3d 451,
715 N.E.2d 1062, 1999-Ohio-123 .......................................................................................... 3

State ex rel. Dallman v. Franklin Cty. Court of Common Pleas (1973),

35 Ohio St.2d 176, 298 N.E.2d 515 ...................................................................................... 3

State ex rel. Draper vWilder (1945), 145 Ohio St. 447, 62 N.E.2d 156 .................................. 10

State ex rel. Park Inv. Co. v. Board of Tax Appeals (1972); 31 Ohio St. 2d 183,
285 N.E.2d 356 . ................................................................................................................... 10

Wells Fargo v. Byrd (1st Dist. 2008), 178 Ohio App.3d 285, 897 N.E.2d 722,
2008-Ohio-4603 ................................................................................................................2, 11

Wells Fargo u Jordan (8th Dist. 2009), 2009-Ohio-1092 ................................................. passim

Williamson v. Rubich (1960), 171 Ohio St. 253, 168 N.E.2d 876 .....................................1, 2, 11

Statutes

I.R.C. § 860D ... ........................................................................................................................... 4

R.C. 1303.24(A)(2) ................................................................................................................... 12

Treatises

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

Constitutional Provisions

0. Const. Art. IV § 2(B)(2)(e) ..................................................................................................... 1

ii
 STATEMENT OF INTEREST OF AMICUS CURIAE

The 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 services

and working for systemic solutions that empower those we serve. The attorneys of The Legal

Aid Society of Cleveland represent clients in civil law cases and primarily address issues of

consumer law, housing law, domestic relations, immigration, community development, and

issues of health, education, work and income. Defending consumers in foreclosure litigation is

and has been a significant part of Legal Aid's practice, including settlement negotiations that

often result in the reinstatement of loans. In that vein, The Legal Aid Society of Cleveland

submits this amicus curiae brief because the issues that the lender proposes for the Court to

accept are not issues of public or great general interest. Rather, the issues are personal to the

lender, are issues of settled law and/or Appellant's misreading of the record and settled law.

iii
I. STATEMENT OF WHY THIS CASE IS NOT OF PUBLIC OR GREAT GENERAL
INTEREST

A. 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 set forth in
their 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 from

questions of interest primarily to the parties."2 Wells Fargo attempts to meet this standard by

claiming the appeal "presents two critical issues that will effect thousands of pending and future

foreclosure 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 future

foreclosures. Prudent plaintiffs can comply with Jordan without penalty or increased costs by

obtaining the notes and assignments of the mortgage before commencing suit instead of

afterwards.

Jordan is not a case of "public or great general interest" for lenders with pending

foreclosures but who never sold the borrower's loans. These lenders comply with Jordan

because 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 loans

with pending foreclosures if those purchasers complied with the Pooling and Servicing

Agreements 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 Norwest
Bank Minnesota N.A. as Trustee for the Registered Holders of Renaissance Home Equity
Loan Asset Backed Certificate Series 2003-1."
2. O. Const. Art. IV § 2(B)(2)(e); Williamson v. Rubich (1960), 171 Ohio St. 253, 254, 168
N.E.2d 876, 877 (per curium).
3. Appellant's Memorandum in Support of Jurisdiction ("Appellant's Memorandum") at
page 1 (emphasis added).

1
agreements set strict guidelines for immediately transferring notes and assignments of purchased

mortgages to a Trustee. In such cases, the Trustee will have had proof of assignment long before

filing.

Conversely, Jordan is of private interest to purchasers of mortgage loans, such as the

Appellant, 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 District

dismissed 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 afterwards
has 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 on

the application would have induced a refusal, the court may upon motion by a party or es mero

motu dismiss the [motion]"5

Wells Fargo asks this Court to review whether an entity that properly obtained a

promissory note on the secondary market before it files the lawsuit must also have an assignment

of 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 it

filed the complaint lacks standing to sue.6 The record does not support Wells Fargo's claim that

it had the Note before filing the lawsuit. The Note attached to the Complaint is payable to

Funding 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's Memorandum 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.

2
authenticates the Note attached to the Complaint, the one without an affixed allonge; the affidavit

does 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 held

the Note when it filed the Complaint. Wells Fargo errs when it claims that "standing" to proceed

in a case can be waived. Whether an Ohio litigant has standing to sue another party over claimed

private contractual rights is not a narrow technical issue, but one that addresses the basic power

of Ohio courts. In "the vast majority of cases brought by a private litigant, `the question of

standing depends upon whether the party has alleged such a personal stake in the outcome of the

controversy, as to ensure that the dispute sought to be adjudicated will be presented in an

adversary context and in a form historically viewed as capable of judicial resolution."'$ Wells

Fargo sued on rights that could only arise from the Mortgage, thus it lacked standing to foreclose

without 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 of

9.240%.9 Mr. Jordan signed a promissory note ("Note") for this amount, payable to Delta.10 The

Note 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 Summary
Judgment.
8. State ex rel. Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 469, 715
N.E.2d 1062, 1080, 1999-Ohio-123 (citations and internal quotations omitted); State ex
rel. 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.

3
Mortgagee was Mortgage Electronic Registration Systems, Inc. ("MERS"); MERS recorded the

mortgage on January 14, 2003.12 Neither the Note nor the Mortgage mentioned Wells Fargo.

B. The creation of "Renaissance Home Equity Loan Trust 2003-1"

Delta "bundled" Mr. Jordan's Note with 1,752 other mortgage notes and sold those notes

to Renaissance Mortgage Acceptance Corporation. The Jordan's mortgage payments became

part of a $258,551,000.00 public offering of securities issued as "Renaissance Home Equity

Loan 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 that

purchases afixed pool of mortgage secured by real property and distributes the payments it

collects from the borrowers as mortgage-backed securities.14 An advantage of a REMIC is that it

is generally not taxed for the mortgage payments it collects.15 As will be addressed below, a

REMIC 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 a

public document filed with the Securities and Exchange Commission. The Pooling and Servicing

Agreement, 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 parties

included 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 the
SEC's Edgar Website located at
http://idea.sec.gov/Archives/edgar/data/1 1 64604/0000950 1 3 603 0006 1 0/file001.txt
14. 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 at
http://idea.sec.gov/Archives/edgar/data/ 1 223 792/000 1 1 623 1 803 000 1 5 8/psaa.htm

4
Depositor; Ocwen Federal Bank FSB as Servicer; and, Wells Fargo Bank Minnesota, National

Association, as Trustee.17 The Closing date was March 27, 2003.18 Wells Fargo Bank, N.A. was

not involved in this transaction.

Delta should have delivered indorsed copies of Mr. Jordan's Note and the Assignment of

the Jordan's Mortgage to Wells Fargo Bank Minnesota.

Section 2.01 of the Pooling and Servicing Agreement refutes Wells Fargo's complaints

about the difficulty in obtaining the Note and Assignment before filing the Complaint. To the

contrary, Section 2.01 required Delta to deliver both the Note and an Assignment of the

Mortgage 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 the
Closing Date, the following documents or instruments with respect to each Initial
Mortgage Loan...:

(i) The original Mortgage Note, with all prior and intervening endorsements
showing a complete chain of endorsements from the originator of the
Mortgage Loan to the Person so endorsing the Mortgage Loan to the
Trustee, endorsed by such Person "Pay to the order of Wells Fargo Bank
Minnesota, National Association, as Trustee for Renaissance HEL Trust
2003-I without recourse" and signed ... in the name of the Seller by a
Responsible Officer;
*^*
(iii) For each Mortgage Loan, the original Assignment of Mortgage in
recordable form, from the Seller in blank, or to "Wells Fargo Bank
Minnesota, National Association, as Trustee for Renaissance HEL Trust
2003-1"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 any
Secretary or Assistant Secretary." Pooling and Servicing Agreement Section 1.01
("Responsible Officer").

5
The term "Assignment of Mortgage" was "an assignment, notice of transfer or equivalent

instrument, in recordable form, sufficient under the laws of the jurisdiction in which the related

Mortgaged 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 signed

documents. The Pooling and Servicing Agreement required it as the Trustee to review the loan

files 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) all
documents constituting part of such Mortgage File required to be delivered to it
pursuant 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 and
relate to such Mortgage Loan ... accurately reflects infonnation set forth in the
Mortgage File. If within such 45-day period the Trustee or the Custodian on
behalf of the Trustee finds any document constituting apart of a Mortgage File
not to have been executed or received ... the Trustee ... shall promptly upon the
conclusion of its review notify in the form of an exception report and the
Seller.... ZZ

The Seller, Delta, had 90 days to deliver any missing notes or assigmnents and/or properly

execute such documents. The Trustee had to review the files again 360 days after the closing

date 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 it

received properly endorsed Note and a properly executed Mortgage assignment from the

Jordans, to Delta, to Wells Fargo Minnesota as trustee.

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

6
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 to

Delta and MERS was the mortgagee on the Mortgage.25 On September 24, 2007, Wells Fargo

filed 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 Funding

Corporation.Z7 It was endorsed "Wells Fargo Bank, N.A., Successor by Merger to Wells Fargo

Minnesota, N. A., as Trustee for the Registered Holders of Renaissance Home Equity Loan

Asset-Backed Certificates Series 2003-1."

On February 26, 2008, Wells Fargo moved for summary judgment. The affidavit

attached to this motion stated that "the copies of the Promissory Note and Mortgage Deed

attached to the Plaintiff's Complaint are true and accurate copies of the original instruments

held 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 forml
Ok.txt. He signed for Ocwen.
28. See Paragraph 3 of Exhibit C to the Motion for Summary Judgment (emphasis added).

7
 On April 8, 2008, the magistrate granted Wells Fargo's motion for summary judgment 29

On May 21, 2008, the trial court adopted the Magistrates decision. The Jordans appealed. The

Eighth 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 and

servicing agreements submitted to the SEC.

First, Jordan does not bar parties from filing foreclosures in the future. Jordan requires

that a plaintiff possess both the Note and the Mortgage before filing a lawsuit. This imposes no

new or unexpected burden because a lender or the trustee for a securitized trust must ultimately

have the Note and Mortgage.

Second, Jordan does not harm lenders who never sold the borrower's note or assigned the

mortgage. These lenders already have the documents needed to comply with Jordan.

Third, Jordan does not harm those trustees who complied with securities, bankruptcy, and

tax law. As seen above in the discussion of the pooling and servicing agreement, these

agreements require a trustee of a REMIC to possess the notes and assignments of mortgages

before 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 Stay
Focused, LLC.
30. Appellant's Memorandum at p. 1 (emphasis added).

8
these documents. Thus, a trustee who complies with its respective Pooling and Serving

Agreement has nothing to fear from Jordan. That trustee has the note and mortgage in hand

before 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. The

Court of Appeals ordered the trial court to dismiss the case without prejudice. Thus, Wells Fargo

could re-file tomorrow if it truly possesses the Note and the assignment of the mortgage. This

minor inconvenience is not a matter of public interest.

This case is about when a lender should have the Note and Mortgage. In the Pooling and

Servicing Agreement submitted to the Securities and Exchange Commission, Wells Fargo's

predecessor stated it would obtain properly endorsed copies of the Jordan's Note and Mortgage

no later than March 2003. Obtaining properly endorsed documents then was not a random

promise; it was required by the Internal Revenue Code. Wells Fargo Bank Minnesota did not

follow through on this promise.

Wells Fargo did not have the Jordans' Note or Mortgage because of its failure to comply

with simple, but critically important, bookkeeping required by law and contract - not some

abstract "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 bank

from its own folly and faulty book-keeping rises to the level of public or great general interest. It

does not.

Before addressing the issue of standing, this Court should ignore Wells Fargo's

unsupported throwaway arguments. Wells Fargo fails to explain how Jordan will burden

Recorder's Offices. The Recorder's job of collecting the filing fee, stamping the assignment, and

scanning it into the computer is the same whether the assignment is filed before or after filing.

9
 Wells Fargo's "current industry practice" argument cuts against it. Wells Fargo argues

"[c]un•ent industry practice is that assignments of mortgage generally are not recorded until a

borrower has defaulted and foreclosure is either on the horizon or is already underway

commenced...... 31 In other words, nothing prevents lenders from obtaining the assignment

before the lawsuit is filed. Also, Wells Fargo tries to expand this beyond foreclosures. But

nothing in the Eighth Appellate District's opinion indicates it will apply to other secured

transactions.

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$258,551,000.00

public offering Wells Fargo should have hired a few people to ensure it complied with the

Pooling and Servicing Agreement. Further, Wells Fargo provides no citations or proof backing

its stateinents about the secondary market it made in the Appellant's Meinoranduin.

Finally, Wells Fargo raises the specter of collateral attack on prior judgments granting

foreclosure.'Z Wells Fargo cites no cases addressing a collateral attack on a confirmed sheriff's

sale. But more importantly, this question is not before the Court and thus is a request for an

advisory opinion, a request this Court should ignore. An advisory opinion is merely the opinion

of a judge or judges of a court, which adjudicates nothing and is binding on no one.33 An Ohio

court does not have "the constitutional or statatory authorization ... for the issuance of an

advisory 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.

10
C. Appellant's Second Proposition of Law is not of public or great general interest
Wells Fargo was not the payee on the Note when it filed the Complaint and never
authenticated 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 party

or ex mero motu dismiss" the motion to exercise jurisdiction.35 Here, Wells Fargo failed to

establish 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 entity

seeking relief must establish standing to sue.i36 Importantly, a plaintiff's lack of standing is

jurisdictional and not an issue that a defendant can waive.37

In Wells Fargo Bank, N.A. v. Byrd, the First Appellate District Court affirmed the

dismissal of the foreclosure case for lack of standing because the plaintiff did not have

ownership of the mortgage on the date the lawsuit was filed.38 The Byrd Court further observed

that Civil Rule 17 did not apply because the plaintiff lacked standing to commence the lawsuit in

the first place.39 The defect was jurisdictional and could not be cured by the subsequent

assignment 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.

11
 Wells Fargo concedes a plaintiff lacks standing if it "acquired ownership of the note

sometime 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,44

meaning Wells Fargo lacked standing when it filed the lawsuit.

Wells Fargo tried to avoid this by "filing" an Allonge on September 24, 2007, about six

weeks 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 is

on a separate piece of paper. An allonge must be affixed to the note in order to be considered a

part of the instrument.46 Thus, ifWells Fargo's Allonge was valid, then should it should have

been 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 the

Allonge attached. The affidavit attached to the Motion for Summary Judgment only

authenticates the Note attached to the Complaint 47 The "Allonge" was not affixed to the Note

Wells Fargo attached to the Complaint.

Furthermore, filing a document with a trial court does not authenticate it. The Notice of

Filing is not a pleading, it was not a motion, it was not the type of evidence sanctioned under

Civ. 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 Sunnnary
Judginent.

12
the Note" was a legal nullity. The record only supports the conclusion that Delta was the payee

of the Note.

Under the Civil Rules, Wells Fargo never established that it held the Note and never

established 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 Fargo

created its own personal dilemma by not following its Pooling and Servicing Agreement and then

failing to authenticate the Note with the Allonge affixed. Also, Wells Fargo suffered no harm

because the dismissal was without prejudice. Therefore, Amicus Curiae Legal Aid Society of

Cleveland asks this Court to deny the Appellant's Motion.

d G. Strai ord)
strainQlascle
Phil Althouse (0051966)
pdalthousena,lasclev. org
Katie I. Feldman (0081963)
katie.feldmanQlasclev.org
Matthew Vincel (0084422)
mvincel@lasclev.org
Cleveland, Ohio 44113
216-861-5198 (ph - direct)
216-861-0704 (fax)
Attorneys for Amicus Curiae
The Legal Aid Society of Cleveland

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 CERTIFICATE OF SERVICE

On 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, LLP
191 W. Nationwide Blvd, Suite 300
Columbus, Ohio 43215

Phillip C. Barragate, Esq.

Benjamin D. Carnahan, Esq.
Shapiro, Van Ess, Phillips & Barragate,
1500 West Third Street, Suite 455
Cleveland, Ohio 44113

Counsel for Appellant,

Wells Fargo N.A., Successor by Merger to Wells Fargo Bank Minnesota N.A. as
Trustee f/k/a Norwest Bank Minnesota N.A. as Trustee for the Registered Holders
of Renaissance Home Equity Loan Asset Backed Certificate Series 2003-1.

Oties Jordan, Jr.

Sylvia Jordan
960 East 78u' Street
Cleveland, Ohio 44103
Pro Se Appellees

Stay Focused, LLC

c/o Oties Jordan, Jr.
960 East 78th Street
Cleveland, Ohio 44103

Appellee

Ho Aqrd G. Str21Yn
One of the Attorney _ for Amicus Curiae
The Legal Aid Soci ty of Cleveland

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