[Cite as Wells Fargo Bank, Natl. Assn. v. Wick, 2013-Ohio-5422.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 99373 and 99840




    WELLS FARGO BANK, NATIONAL ASSOCIATION
                                                           PLAINTIFFS-APPELLEES

                                                     vs.

                                  JOHN WICK, ET AL.
                                                           DEFENDANTS-APPELLANTS




                               JUDGMENT:
                      NO. 99373: AFFIRMED IN PART,
                    REVERSED IN PART, AND REMANDED;
                          NO. 99840: DISMISSED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-651697

        BEFORE: McCormack, J., Stewart, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: December 12, 2013
ATTORNEY FOR APPELLANTS

For John Wick, et al.

Susan M. Gray
Ohio Savings Bank Building
22255 Center Ridge Rd., Ste. 210
Rocky River, OH 44116

Also listed:

James Chapman, pro se
2132 Case Parkway N
Unit A
Twinsburg, OH 44087



ATTORNEYS FOR APPELLEES

Attorneys for Wells Fargo Bank N.A.

Robert A. West, Jr.
Robert C. Folland
Stephen D. Williger
Thompson Hine L.L.P.
3900 Key Center
127 Public Square
Cleveland, OH 44114

Rachel K. Pearson
Lerner, Sampson, Rothfuss
P.O. Box 5480
Cincinnati, OH 45201

Matthew A. Taulbee
Reisenfeld & Associates
3962 Red Bank Road
Cincinnati, OH 45227
For Amaxx Mortgage Corp.

Amaxx Mortgage Corp.
c/o Kristina J. Henry, Statutory Agent
390 Clearbrook
Avon Lake, OH 44012

For Thomas Floyd

Thomas Floyd, pro se
c/o Sweda, Sweda & Assocs.
36470 Detroit Rd.
Avon, OH 44011

Attorney for Homecomings

Barbara Friedman Yaksic
McGlinchey Stafford, P.L.L.C.
25550 Chagrin Blvd.
Suite 406
Cleveland, OH 44122

For Michael Kangas

Michael Kangas, pro se
c/o Kangas Appraisals, Inc.
P.O. Box 128
Montville, OH 44064

Attorneys for Mortgage Electronic Registration System, Inc., et al.

Julie A. Crocker
Gregory J. O’Brien
Taft, Stettinius & Hollister, L.L.P.
200 Public Square
Suite 3500
Cleveland, OH 44114
For Precision Funding Corp.

Precision Funding Corp., pro se
c/o Dominic Difranco – Statutory Agent
163 E. Aurora Road
Northfield, OH 44067

Attorneys for Sweda, Sweda, & Assocs.

Amy L. Deluca
Michael R. Niederbaumer
Wickens, Herzer, Panza, Cook & Batista
35765 Chester Road
Avon, OH 44011
TIM McCORMACK, J.:

      {¶1} Defendants-appellants, John, Leadonna, and Shirley Wick (collectively “the

Wicks”), appeal the trial court’s decision dismissing their counterclaims, cross-claims,

and third-party claims. For the reasons that follow, we reverse the trial court on the

Wicks’ Truth in Lending Act (“TILA”) claims and remand to the trial court for

consideration.

                      Procedural History and Substantive Facts

      {¶2} This appeal stems from a foreclosure action filed on February 21, 2008, by

Wells Fargo Bank, N.A. (“Wells Fargo”) on the Wicks’ property located on Clarence

Avenue in Lakewood, Ohio. In August 2005, the Wicks executed a note in favor of

GreenPoint Mortgage Funding, Inc. (“GreenPoint”). According to Wells Fargo, the note

contained a special endorsement from GreenPoint to Wells Fargo, as trustee. The Wicks

secured the note with a mortgage in favor of Mortgage Electronic Registration System,

Inc. (“MERS”) acting as nominee for GreenPoint or its successors. On February 29,

2008, MERS, as nominee for GreenPoint, assigned the mortgage to Wells Fargo.

      {¶3} On April 8, 2008, the Wicks filed an answer, counterclaims, and third-party

claims. The first and second counterclaims were filed against Wells Fargo for wrongful

foreclosure and for violations of the Ohio Racketeer Influenced Corrupt Organizations

Act (“RICO”). The Wicks filed a cross-claim against MERS for civil conspiracy. They

filed third-party claims against the following parties: Homecomings Financial for breach

of contract; Homecomings, Floyd Thomas, Sweda Sweda & Associates (“Sweda”),
Amaxx Mortgage Corp., and “Susan (last name unknown)” for civil conspiracy; Floyd

Thomas, Sweda, Amaxx Mortgage Corp., and Susan for breach of fiduciary duty; 1

GreenPoint for violations of disclosure and rescission remedies under TILA; Precision

Funding, James Chapman, Michael Kangas, Kangas Appraisals, Inc., and GreenPoint for

civil conspiracy; James Chapman, Precision Funding, Amaxx Mortgage Corp., and Susan

for violations of the Mortgage Loan Broker Act; and James Chapman and Precision

Funding for breach of fiduciary duty. The Wicks assert that none of these claims arise

from the note or mortgage.

       {¶4} On December 10, 2012, the trial court found that Wells Fargo lacked

standing at the outset of litigation by a subsequent assignment. The court therefore

dismissed the entire action, including the Wicks’ answer, counterclaim, and third-party

complaint, stating that “[b]ecause plaintiff has failed to invoke the jurisdiction of the

court, plaintiff’s complaint and all other claims in the case are hereby dismissed, without

prejudice.” The trial court did not address the Wicks’ claims individually.

       {¶5} Thereafter, the Wicks filed a motion for relief from judgment, claiming that

their claims can be independently adjudicated. The Wicks also filed a notice of appeal to

this court (Appeal No. 99373). We remanded the matter to the trial court until April 1,

2013, for the limited purpose of ruling on the Wicks’ motion for relief from judgment.


       The Wicks note in their brief on appeal that they have settled with Homecomings and Sweda
       1


and the parties associated with Sweda, including Floyd Thomas. They further note that
Homecomings is a party to a bankruptcy proceeding in the Southern District of New York. The
Wicks do not appeal any claims concerning these parties.
On April 16, 2013, more than two weeks after the remand period had expired, the trial

court denied the Wicks’ motion for relief. We dismissed the Wicks’ appeal, sua sponte,

on April 22, 2013, finding that the trial court’s dismissal without prejudice was not a

final, appealable order because the matter could be refiled in the lower court.

       {¶6} After the trial court’s denial of the motion for relief, the Wicks filed a

notice of appeal to this court of the trial court’s disposition of their motion for relief

(Appeal No. 99840). The Wicks also filed a motion for reconsideration of our dismissal

of Appeal No. 99373. On May 16, 2013, we reconsidered our prior dismissal and found

that the trial court’s dismissal of the Wicks’ TILA claims constituted a final, appealable

order because no savings statute applied to permit the refiling of those claims:

       A dismissal without prejudice is generally not a final appealable order
       because the ruling does not prevent the party from refiling. However, a
       dismissal without prejudice is final and appealable where the appellant is
       precluded from refiling as a result of the dismissal. National City
       Commercial Capital Corp. v. AAAA at Your Serv., Inc., 114 Ohio St.3d 82,
       2007-Ohio-2942, 868 N.E.2d 663.

       Appellants claim that their counterclaim for violation of the federal Truth in
       Lending Act (“TILA”) could not be refiled because the statute of limitations
       has now run and the savings statute, R.C. 2305.19, does not apply to federal
       claims like TILA claims, which contain their own statute of limitations.
       Appellees do not dispute this argument; our limited research supports
       appellants’ position. See Burnett v. N.Y. Central R.R. Co., 380 U.S. 424,
       432, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965); Ruth v. Unifund CCR Partners,
       2009 U.S. Dist. LEXIS 17362 (N.D. Ohio Mar. 6, 2009). Therefore, the
       dismissal of the underlying action was a final appealable order at least to
       the extent the court finally disposed of appellants’ TILA claim.

We consolidated Appeal Nos. 99373 and 99840 for purposes of briefing, hearing, and

disposition.
                                  Assignments of Error

       I. The trial court erred as a matter of law and to the prejudice of appellants
       in dismissing their claims.

       II. The trial court erred as a matter of law when it ruled on the Wicks’
       motion for relief from judgment because at the time it ruled it lacked
       jurisdiction.

       III. The trial court erred as a matter of law and to the prejudice of
       appellants when it implicitly and explicitly denied their motion for relief
       from judgment.

                                    Law and Analysis

       {¶7} The Wicks claim that the trial court erred in dismissing all of their

counterclaims, cross-claims, and third-party claims when it dismissed Wells Fargo’s

foreclosure complaint for failure to invoke the court’s jurisdiction. In ruling on the

Wicks’ motion for reconsideration, however, we determined that, with the exception of

the TILA claims, the trial court’s dismissal of the Wicks’ claims was without prejudice

and, therefore, as it related to those non-TILA claims, the trial court’s dismissal was not a

final, appealable order. As such, they were not properly before this court. See Journal

Entry, May 16, 2013; Natl. City Commercial Capital Corp.

       {¶8} With respect to the Wicks’ TILA claims, however, we determined that the

trial court’s dismissal was, in fact, a final, appealable order because the TILA claims

cannot be refiled. The statute of limitations has now run, and the Wicks cannot avail

themselves of Ohio’s savings statute for the federal TILA claims.             We therefore

reinstated the Wicks’ appeal for the limited consideration of their TILA claims. In its
appellee brief, Wells Fargo appears to concede that this court has jurisdiction to review

the TILA claims.

       {¶9} The Wicks argue that their TILA claims can remain in the trial court for

independent adjudication; therefore, the trial court erred in dismissing them. In support

of their position, the Wicks cite CitiMortgage Inc. v. Slack, 8th Dist. Cuyahoga No.

94899, 2011-Ohio-613. In CitiMortgage, this court determined that the trial court had

jurisdiction over the borrowers’ counterclaim and, therefore, its dismissal of those claims

was error. In that case, CitiMortgage filed a foreclosure action, alleging the borrowers

were in default on a note and mortgage, which was secured by their home.               The

borrowers filed a counterclaim for breach of contract, fraud, and intentional or negligent

misrepresentation. The trial court ordered CitiMortgage to file evidence of its standing

to file the case. Rather than filing this evidence, CitiMortgage voluntarily dismissed its

claims without prejudice.    Having found that CitiMortgage failed to show that the

jurisdiction of the court had been properly invoked under the standing requirements, the

trial court determined that any judgment, including a judgment on the counterclaim,

would be a nullity, and it dismissed all remaining claims without prejudice.

       {¶10} On appeal, we determined that, when a trial court dismisses an action for

lack of jurisdiction and disposes of the case, the dismissal is a final, appealable order.

CitiMortgage, Inc. at ¶ 7, citing Natl. City Commercial Capital Corp., 114 Ohio St.3d 82,

2007-Ohio-2942, 868 N.E.2d 663, ¶ 10-12. In considering the merits of the case, we

determined that a “proper and validly asserted counterclaim is not extinguished by a
plaintiff’s voluntary dismissal of its claims when the court has jurisdiction to proceed on

the counterclaim.”     Id. at ¶ 11.    We found, therefore, that where the court has

jurisdiction over the parties and over the controversy, the borrowers’ counterclaim that

does not arise from the note or mortgage can remain pending for independent

adjudication. Id.

       {¶11} Similarly, the trial court’s conclusion in this case that it lacked jurisdiction

over the foreclosure claim because the bank lacked standing does not extinguish the

Wicks’ proper and validly asserted claims. “As long as the court has jurisdiction of the

parties and of the controversy, the counterclaim may remain pending for independent

adjudication by the court following a plaintiff’s voluntary dismissal of the complaint.”

Id. at ¶ 11.

       {¶12} Here, the Wicks argue that their TILA claims can remain for independent

adjudication because they do not arise out of the note or mortgage, rather they arise from

Wells Fargo’s alleged violations of various provisions of the federal statute.

       {¶13} A counterclaim remains pending for independent adjudication if the

dismissal of the plaintiff’s claim does not defeat the trial court’s jurisdiction over the

parties and the controversy. Abbyshire Constr. Co. v. Ohio Civ. Rights Comm., 39 Ohio

App.2d 125, 316 N.E.2d 893 (8th Dist.1974), syllabus; Columbus Metro. Hous. Auth. v.

Flowers, 10th Dist. Franklin Nos. 05AP-87 and 05AP-372, 2005-Ohio-6615, ¶ 15. Here,

the trial court’s dismissal of Wells Fargo’s foreclosure complaint did not deprive the trial

court of jurisdiction over the Wicks and the assertion of their TILA claims. The Wicks’
TILA claims are separate and independent of Wells Fargo’s foreclosure complaint and

could have constituted a separate action. See, e.g., Gravill v. Akram, 8th Dist. Cuyahoga

No. 57392, 1989 Ohio App. LEXIS 3443 (Aug. 31, 1989).

          {¶14} Accordingly, we find that the trial court incorrectly dismissed the Wicks’

TILA claims. Their first assignment of error is sustained in part.

          {¶15} The Wicks also argue two assignments of error that pertain to the denial of

their Civ.R. 60(B) motion for relief from judgment and are the subject of Appeal No.

99840: (1) the trial court erred when it ruled on their motion for relief from judgment

because at the time the court ruled on the motion, it did not have jurisdiction; and (2) the

trial court erred as a matter of law when it implicitly and explicitly denied their motion for

relief.

          {¶16} After the trial court dismissed the Wicks’ counterclaims and third-party

claims, the Wicks filed a motion for relief from judgment with the trial court as well as a

notice of appeal of the trial court’s dismissal in this court. We remanded the matter to

the trial court until April 1, 2013, for the limited purpose of ruling on the motion for

relief. The trial court failed to rule on the motion until April 16, 2013, which is more

than two weeks after the remand period had expired. At that time, the trial court denied

the Wicks’ motion. The Wicks claim that the trial court had no jurisdiction to rule on

their motion outside of the mandate of this court’s remand order.

          {¶17} Once an appeal has been filed, the trial court loses jurisdiction “‘except to

take action in aid of the appeal.’” Novak v. Camino, 8th Dist. Cuyahoga Nos. 99019 and
99332, 2013-Ohio-2907, ¶ 26, quoting In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215,

829 N.E.2d 1207, ¶ 9. The Ohio Supreme Court has expressly held that an appeal divests

the trial court of jurisdiction to consider Civ.R. 60(B) motions for relief from judgment.

Howard v. Catholic Social Servs. of Cuyahoga Cty. Inc., 70 Ohio St.3d 141, 147,

1994-Ohio-219, 637 N.E.2d 890.        Jurisdiction may be conferred on the trial court,

however, through an order by the reviewing court remanding the matter for consideration

of the Civ.R. 60(B) motion. Id. Upon remand, the trial court must follow the mandate

of an appellate court. See State ex rel. Davis v. Cleary, 77 Ohio App.3d 494, 498, 602

N.E.2d 1183 (8th Dist.1991); State v. Roper, 9th Dist. Summit No. 22988,

2006-Ohio-3661, ¶ 10.      “The trial court is without authority to extend or vary the

mandate given by the appellate court.” Roper.

       {¶18} In this case, we conferred jurisdiction upon the trial court until April 1,

2013, for the limited purpose of ruling on the motion for relief. When the trial court

denied the Wicks’ motion on April 16, 2013, this court’s remand order had expired. As

such, the trial court had no jurisdiction to entertain the Wicks’ motion for relief. Because

the trial court’s action was inconsistent with the mandate of this court, the trial court’s

ruling subsequent to the expiration of our remand order was a nullity. Absent a final

order by the trial court on the Wicks’ motion for relief, there is nothing for this court to

review on appeal. Accordingly, Appeal No. 99840 is dismissed.
       {¶19} Appeal No. 99840 is dismissed. In Appeal No. 99373, the judgment of the

trial court is affirmed in part, reversed in part, and remanded to the trial court for further

proceedings consistent with this opinion.

       It is ordered that appellants and appellees share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

MELODY J. STEWART, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
