On September 2, 2008, the Court of Appeals of Ohio, 5th Appellate District, Stark County, Upheld a December 2007 decision of the Stark County Court of Common Pleas awarding a foreclosure defendant sanctions under Ohio's Rule 11 and/or O.R.C. 2323.51 in the amount of the defendant's attorney's fees.
The case was Mainsource Bank v. Winafeld, Case No. 2008 CA 00001, COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, STARK COUNTY, 2008 Ohio 4441; 2008 Ohio App. LEXIS 3733, September 2, 2008, Date of Judgment Entry.
The text of the decision is available online at:
This decision was the second time that the issue reached this Ohio appellate court. The first decision can be found at:
Winafeld v. Mainsource Bank, Case No. 2007 CA 00056, COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, STARK COUNTY, 2007 Ohio 6117; 2007 Ohio App. LEXIS 5363, October 29, 2007, Date of Judgment Entry, Appeal after remand at Mainsource Bank v. Winafeld, 2008 Ohio 4441, 2008 Ohio App. LEXIS 3733 (Ohio Ct. App., Stark County, Sept. 2, 2008).
Taken together with Wells Fargo Bank, N.A. v. Jordan, No. 91675, COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY, 2009 Ohio 1092; 2009 Ohio App. LEXIS 881, March 12, 2009, Released; and Wells Fargo Bank, N.A. v. Byrd, APPEAL NOS. C-070889, C-070890, COURT OF APPEALS OF OHIO, FIRST APPELLATE DISTRICT, HAMILTON COUNTY, 178 Ohio App. 3d 285; 2008 Ohio 4603; 897 N.E.2d 722; 2008 Ohio App. LEXIS 3874, September 12, 2008, Date of Judgment Entry on Appeal; we now have a very nice body of law developing in Ohio.
WHERE THE PLAINTIFF INITIATES A FORECLOSURE ACTION IN ADVANCE OF ACQUISITION OF ANY INTEREST IN THE PROMISSORY NOTE, THE DEFENDANT IS ENTITLED NOT ONLY TO A DISMISSAL FOR LACK OF STANDING, BUT ALSO TO AN AWARD OF ATTORNEYS' FEES UNDER RULE 11 AS A SANCTION.
BE SURE TO ASK FOR THE SANCTIONS CONCURRENT WITH THE MOTION TO DISMISS, AS THE COURT SEEMS UNLIKELY TO HAVE AUTHORITY TO GRANT SANCTIONS NOT ALREADY REQUESTED AFTER ACTING TO DISMISS THE CASE.