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Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 30 12:42 PM-22CV003051
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IN THE COURT OF COMMON PLEAS OF
FRANKLIN COUNTY, OHIO
Thomas Lane, Case No. 22CV003051
Plaintiff, Judge Richard Frye
-Vs- DEFENDANT’S RESPONSE TO
MOTION FOR RELIEF FROM
U.S. Bank N.A as Trustee; JUDGMENT
GMAC Mortgage LLC
Defendants.
Now comes the Defendant, U.S. Bank National Association, as Trustee for Residential
Asset Mortgage Products, Inc., Mortgage Asset-Backed Pass-Through Certifies, Series 2005-
EFC4 (“U.S. Bank” or “Defendant”), by and through counsel, and files its Response to Plaintiff
Thomas Lane’s Motion for Relief from Judgment. This Response is supported by the following
Memorandum of Law filed contemporaneously herewith.
Respectfully submitted,
/s/ John R. Wirthlin
John R. Wirthlin (0031526)
BLANK ROME, LLP
1700 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Telephone: (513) 362-8700
Fax: (513) 362-8787
Email: john.wirthlin@blankrome.com
Counsel for Defendant U.S. Bank
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 30 12:42 PM-22CV003051
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MEMORANDUM OF LAW IN SUPPORT OF RESPONSE
I INTRODUCTION
Plaintiff Thomas Lane’s (“Plaintiff”) Motion for Relief from Judgment (the “Motion”) should
be summarily denied because it is another attempt by Plaintiff to re-litigate cases and issues that
have already been decided by this Court and then upheld by the Court of Appeals. Moreover, the
Motion is procedurally improper because the judgment it seeks relief from has already been upheld
on appeal — the proper mechanism for contesting the decision of the Court of Appeals is to file an
appeal to the Ohio Supreme Court. Thus, the Motion is both legally and procedurally improper.
The Court should deny it without hesitation or further consideration.
IL. BRIEF HISTORY
Plaintiff filed his Complaint for Fraud on the Court (the “Complaint”) on May 6, 2022.
The Complaint alleges that U.S. Bank and GMAC “entered false and misleading statements into
their Appellee brief.” See Complaint at 4. The “Appellee brief” attached to the Complaint was a
copy of U.S. Bank’s Appellee Brief, previously filed with the Court of Appeals in Case No. 20AP-
335 on May 6, 2022. This instant matter is a continuation of Plaintiffs attempts to re-litigate the
foreclosure action filed by Defendant in this court on May 20, 2008, under Case No. 08C VE-7360
(the “Foreclosure Action”). On September 29, 2008, the Court granted summary judgment in favor
of Defendants in the Foreclosure Action. The subject property was sold and the sale of the property
was confirmed on January 25, 2010.
On December 29, 2017, Plaintiff filed an action against Defendants in this Court under
Case No. 17CVH-11425 (the “First Action”). Plaintiff's complaint alleged breach of contract and
negligence relating to an alleged loan modification that was never finalized during the Foreclose
Action. The basis of the breach of contract and negligence claims was the alleged fraudulent
statement of Walter Mahone, who represented the defendants. Mr. Mahone’s statement was made
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in a pleading filed in the Foreclosure Action (hereinafter, the “Mahone Statement”). The Court
dismissed Plaintiffs claims on February 12, 2018, on res judicata grounds stating that Plaintiff
had “repeatedly challenged” this Court’s rulings unsuccessfully over three years during the
Foreclosure Action. See Lane v. U.S. Bank, 2018-Ohio-3
140, 3 (Ohio Ct. App. 2018). The Court
of Appeals held that, “[Plaintiff’s] arguments have been necessarily litigated and determined in a
prior action.” /d at §3.
On September 9, 2019, Plaintiff filed a second action in Franklin County Court of Common
Pleas against the same parties in Case No. 19 CV-7293 (the “Second Action”). The Second Action
again alleged fraud based on the Mahone Statement. Plaintiff filed a motion for default judgment
against the defendants. The trial court denied Plaintiff's request for a default judgment and
dismissed Plaintiff's claims with prejudice. Plaintiff then appealed the dismissal of the Second
Action under Case No. 20AP-335. The Court of Appeals affirmed the trial court’s dismissal on
June 3, 2021. On July 26, 2021, the Court of Appeals denied Plaintiffs motion to reconsider the
June 3, 2021, decision. Plaintiff appealed the decision to the Ohio Supreme Court on August 16,
2021, as Case No. 2021-0990. The Supreme Court declined to accept jurisdiction of Plaintiffs
appeal on October 26, 2021.!
On May 6, 2022, Plaintiff filed this action as Case No. 22CV-3051 against Appellees (the
“Current Action”). Plaintiff's Complaint alleges that the Mahone Statement, characterized as a
breach of contract claim in the First Action and a fraud claim in the Second Action, was now a
perjury on the court. See May 6, 2022, Complaint. On June 9, 2022, the Court dismissed the
Complaint, sua sponte, on the grounds of res judicata. On June 21, 2022, Plaintiff appealed the
1 The appeal to the Ohio Supreme Court shows (1) that Plaintiff is aware of the appeal process and (2) that the Motion
is an end-around attempt to circumvent an appeal to the Ohio Supreme Court.
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Court’s dismissal. The Court of Appeals upheld the dismissal on May 10, 2023. Five months later
Plaintiff filed the instant Motion. For the reasons set forth below, the Motion should be denied.
Til. ARGUMENT
A. The Motion is Procedurally Improper
Plaintiffs Motion is made pursuant to Civ.R. 60(B): “Plaintiff moves for relief from final
judgment rendered in this case on the date of 05/09/23, pursuant to Civil Rule 60(B).” See Motion
at pg. 1. Plaintiff, however, is not entitled to relief under Rule 60(B) because his proper recourse
was to file an appeal of Court of Appeals’ decision rendered on May 10, 2023, to the Ohio Supreme
Court. The Motion is procedurally improper and should be denied.
A trial court's judgment must remain undisturbed pursuant to the doctrine of res judicata,
which bars claims that were or could have been raised on direct appeal. La Barbera v. Batsch, 10
Ohio St.2d 106, 113, 227 N.E.2d 55 (1967). Relief from judgment under Civ.R. 60(B) should be
granted only in the exceptional circumstance. Adomeit v. Baltimore, 39 Ohio App.2d 97, 105, 316
N.E.2d 469 (8th Dist.1974). “For these reasons, a Civ.R. 60(B) motion may not be used as a
substitute for appeal to collaterally attack a final judgment.” M & T Bank v. Steel, 8th Dist.
Cuyahoga No. 101924, 2015-Ohio-1036, {| 13 (citing Bank of Am., N.A. v. Kuchta, 141 Ohio St.
E.
3d 75, 2014-Ohio-4275, 21 N.E.3d 104 al rris v. Anderson, 109 Ohio St.3d 101, 2006-
Ohio-1934, 846 N.E.2d 43, {| 8-9). “It is ablished, however, that Civ.R. 60(B) cannot be
used as a substitute for an appeal.” Fannie Mae v. Nedbalski, 8th Dist. Cuyahoga No. 102247,
2015-Ohio-2159, {| 14 (citing Doe v. Trumbull Cty. Children Serv. Bd., 28 Ohio St.3d 128, 28 Ohio
B. 225, 502 N.E.2d 605 (1986), paragraph two of the syllabus); see also Wells Fargo Bank, N.A.
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v. Collins, 8th Dist. Cuyahoga No. 109555, 2021-Ohio-508, ¥ 25 (“it is well established that Civ.R.
60(B) cannot be used as a substitute for an appeal”).
Plaintiff filed an appeal to the Court of Appeals, lost and is now seeking redress in this
Court. As made abundantly clear by the above cases, the proper procedure would have been to
appeal the Court of Appeals’ decision, but Plaintiff has not done so. Civ.R. 60(B) is not an
alternative to an appeal and cannot be used as a mechanism to re-litigate a prior order. The Motion
should be denied because Civ.R. 60(B) does not permit the Court to reconsider its prior order after
the Courts of Appeals has already upheld the same. For this reason, the Motion should be denied.
B. The Motion Fails to Set Forth Sufficient Grounds for Relief
Even if the Motion were procedurally proper, which it is not, it still fails to set forth
sufficient grounds for relief. Plaintiff is once again attempting to re-litigate issues that have been
decided multiple times — against Plaintiff. Moreover, there is no evidence of fraud. The Motion
should be denied because it is fails to set forth a basis for relief under Civ.R. 60(B).
To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving party must
demonstrate (1) the party has a meritorious defense or claim to present if relief is granted; (2) the
party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (B)(5); and
(3) the motion is made within a reasonable time, and where the grounds for relief are Civ.R.
60(B)(1), (2), or (3), not more than one year after the judgment was entered. G7E Automatic Elec.
v. ARC Ind., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. If these
requirements are not met, the motion should be overruled. Svoboda v. Brunswick, 6 Ohio St.3d
348, 351, 6 Ohio B. 403, 453 N.E.2d 648 (1983).
? In an analogous situation, a Civ.R. 60(B) motion cannot be used to undermine the Court of Appeals’ decision to
remand a case. See Jn re G.N., 176 Ohio App. 3d 236, 2008 Ohio 1796, 891 N.E.2d 816, 2008 Ohio App. LEXIS 1539
(2008) (where a judgment has been reversed and remanded, relief from the original judgment pursuant to Civ.R. 60(B)
is not available).
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Plaintiff bases his Motion on Civ.R. 60(B)(3) and (5), which each state in part
“(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or
other misconduct of an adverse party” and
“(5) any other reason justifying relief from the judgment.”
Even if Plaintiff's argument had not already been defeated more than once, the Motion
would still not be meritorious. The Motion once again alleges a fraud. A claim for common law
fraud requires proof of the following elements: (1) a representation or, where there is a duty to
disclose, concealment of a fact, (2) which is material to the transaction at hand, (3) made falsely,
with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true
or false that knowledge may be inferred, (4) with the intent of misleading another into relying upon
it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury
proximately caused by the reliance. Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167, 169, 10 Ohio
B. 500, 462 N.E.2d 407. The Motion fails to set forth the above elements.
Critically, there is no argument that Plaintiff was fraudulently prevented by Defendant from
presenting Plaintiff’ s defenses to the Foreclosure Action. In other words, he fails to show how the
Mahone Statement affected his ability to defeat the Foreclosure Action against him. See Bank of
New York v. Stilwell, 5th Dist. Fairfield No. 12 CA 3, 2012-Ohio-4123, § 31 (in addressing
borrower’s Civ.R. 60(B) motion “We further find no evidence that Appellee prevented
Appellants from having a fair opportunity to present a defense [to the foreclosure action]”)
Any claims of fraud related to the Foreclosure Action should have been presented in the
Foreclosure Action. See PNC Bank, Natl. Assoc. v. Botts, 10th Dist. No. 12AP-256, 2012 Ohio
5383, 15 (“[t]he fraud or misconduct contemplated by Civ.R. 60(B)(3) is fraud or misconduct on
the part of the adverse party in obtaining the judgment by preventing the losing party from fully
and fairly presenting his defense, not fraud or misconduct which in itself would have amounted to
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a claim or defense in the case.”); see also U.S. Bank Natl. Assn. v. Marino, 5th Dist. No.
2011CAE11 0108, 2012 Ohio 1487, § 16 (appellant's argument that bank had no standing because
it was not the holder of the note at the time the foreclosure complaint was filed was not viable
under Civ.R. 60(B)(3), as the adverse party must have prevented the complaining party from fully
and fairly presenting its case or defense, and the appellant had the opportunity to participate in the
litigation, to file an answer, and to participate in discovery, but chose to not file an answer or any
other response). Because Plaintiff does not set forth any indicia of fraud, the Motion should be
denied.*
Finally, relief under Civ.R. 60(B)(5) is to be granted only in extraordinary circumstances.
Salem y. Salem (1988), 61 Ohio App.3d 243, 572 N.E.2d 726. Section 60(B)(5) can only be used
when one of the prior sections is not available. Plaintiff has failed to set forth any extraordinary
circumstances. He has tried on multiple occasion to use Mahone Statement as a means to seek
relief and each time he has been rebuffed. The law does not permit multiple attempts even for those
who are pro se.
IV. CONCLUSION
Accordingly, Defendant respectfully request that the Court deny the Motion and grant
Defendant all additional relief to which they are entitled.
5 The Court originally dismissed the Complaint on res judicata grounds. Defendant will not argue this point when the
Court has already held that Plaintiff's claims are barred by the doctrine.
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Respectfully submitted,
/s/ John R. Wirthlin
John R. Wirthlin (0031526)
BLANK ROME, LLP
1700 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
Telephone: (513) 362-8700
Fax: (513) 362-8787
Email: john.wirthlin@blankrome.com
Counsel for Defendants
CERTIFICATE OF SERVICE
Thereby certify that on October 30, 2023, I sent an exact copy of the foregoing by U.S.
Mail, postage prepaid, to the following parties
Thomas Lane
4878 Dorchester St.
Groveport, Ohio 43125
Plaintiff Pro Se
GMAC Mortgage LLC
200 Renaissance Center
Detroit, Michigan 48243
Defendant
s/ John R. Wirthlin
John R. Wirthlin
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Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 30 12:42 PM-22CV003051 0G600 - V3 IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO Thomas Lane, Case No. 22CV003051 Plaintiff, Judge Richard Frye -Vs- DEFENDANT’S RESPONSE TO MOTION FOR RELIEF FROM U.S. Bank N.A as Trustee; JUDGMENT GMAC Mortgage LLC Defendants. Now comes the Defendant, U.S. Bank National Association, as Trustee for Residential Asset Mortgage Products, Inc., Mortgage Asset-Backed Pass-Through Certifies, Series 2005- EFC4 (“U.S. Bank” or “Defendant”), by and through counsel, and files its Response to Plaintiff Thomas Lane’s Motion for Relief from Judgment. This Response is supported by the following Memorandum of Law filed contemporaneously herewith. Respectfully submitted, /s/ John R. Wirthlin John R. Wirthlin (0031526) BLANK ROME, LLP 1700 PNC Center 201 East Fifth Street Cincinnati, Ohio 45202 Telephone: (513) 362-8700 Fax: (513) 362-8787 Email: john.wirthlin@blankrome.com Counsel for Defendant U.S. Bank Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 30 12:42 PM-22CV003051 0G600 - V3 MEMORANDUM OF LAW IN SUPPORT OF RESPONSE I INTRODUCTION Plaintiff Thomas Lane’s (“Plaintiff”) Motion for Relief from Judgment (the “Motion”) should be summarily denied because it is another attempt by Plaintiff to re-litigate cases and issues that have already been decided by this Court and then upheld by the Court of Appeals. Moreover, the Motion is procedurally improper because the judgment it seeks relief from has already been upheld on appeal — the proper mechanism for contesting the decision of the Court of Appeals is to file an appeal to the Ohio Supreme Court. Thus, the Motion is both legally and procedurally improper. The Court should deny it without hesitation or further consideration. IL. BRIEF HISTORY Plaintiff filed his Complaint for Fraud on the Court (the “Complaint”) on May 6, 2022. The Complaint alleges that U.S. Bank and GMAC “entered false and misleading statements into their Appellee brief.” See Complaint at 4. The “Appellee brief” attached to the Complaint was a copy of U.S. Bank’s Appellee Brief, previously filed with the Court of Appeals in Case No. 20AP- 335 on May 6, 2022. This instant matter is a continuation of Plaintiffs attempts to re-litigate the foreclosure action filed by Defendant in this court on May 20, 2008, under Case No. 08C VE-7360 (the “Foreclosure Action”). On September 29, 2008, the Court granted summary judgment in favor of Defendants in the Foreclosure Action. The subject property was sold and the sale of the property was confirmed on January 25, 2010. On December 29, 2017, Plaintiff filed an action against Defendants in this Court under Case No. 17CVH-11425 (the “First Action”). Plaintiff's complaint alleged breach of contract and negligence relating to an alleged loan modification that was never finalized during the Foreclose Action. The basis of the breach of contract and negligence claims was the alleged fraudulent statement of Walter Mahone, who represented the defendants. Mr. Mahone’s statement was made Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 30 12:42 PM-22CV003051 0G600 - V3 in a pleading filed in the Foreclosure Action (hereinafter, the “Mahone Statement”). The Court dismissed Plaintiffs claims on February 12, 2018, on res judicata grounds stating that Plaintiff had “repeatedly challenged” this Court’s rulings unsuccessfully over three years during the Foreclosure Action. See Lane v. U.S. Bank, 2018-Ohio-3 140, 3 (Ohio Ct. App. 2018). The Court of Appeals held that, “[Plaintiff’s] arguments have been necessarily litigated and determined in a prior action.” /d at §3. On September 9, 2019, Plaintiff filed a second action in Franklin County Court of Common Pleas against the same parties in Case No. 19 CV-7293 (the “Second Action”). The Second Action again alleged fraud based on the Mahone Statement. Plaintiff filed a motion for default judgment against the defendants. The trial court denied Plaintiff's request for a default judgment and dismissed Plaintiff's claims with prejudice. Plaintiff then appealed the dismissal of the Second Action under Case No. 20AP-335. The Court of Appeals affirmed the trial court’s dismissal on June 3, 2021. On July 26, 2021, the Court of Appeals denied Plaintiffs motion to reconsider the June 3, 2021, decision. Plaintiff appealed the decision to the Ohio Supreme Court on August 16, 2021, as Case No. 2021-0990. The Supreme Court declined to accept jurisdiction of Plaintiffs appeal on October 26, 2021.! On May 6, 2022, Plaintiff filed this action as Case No. 22CV-3051 against Appellees (the “Current Action”). Plaintiff's Complaint alleges that the Mahone Statement, characterized as a breach of contract claim in the First Action and a fraud claim in the Second Action, was now a perjury on the court. See May 6, 2022, Complaint. On June 9, 2022, the Court dismissed the Complaint, sua sponte, on the grounds of res judicata. On June 21, 2022, Plaintiff appealed the 1 The appeal to the Ohio Supreme Court shows (1) that Plaintiff is aware of the appeal process and (2) that the Motion is an end-around attempt to circumvent an appeal to the Ohio Supreme Court. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 30 12:42 PM-22CV003051 0G600 - V3 Court’s dismissal. The Court of Appeals upheld the dismissal on May 10, 2023. Five months later Plaintiff filed the instant Motion. For the reasons set forth below, the Motion should be denied. Til. ARGUMENT A. The Motion is Procedurally Improper Plaintiffs Motion is made pursuant to Civ.R. 60(B): “Plaintiff moves for relief from final judgment rendered in this case on the date of 05/09/23, pursuant to Civil Rule 60(B).” See Motion at pg. 1. Plaintiff, however, is not entitled to relief under Rule 60(B) because his proper recourse was to file an appeal of Court of Appeals’ decision rendered on May 10, 2023, to the Ohio Supreme Court. The Motion is procedurally improper and should be denied. A trial court's judgment must remain undisturbed pursuant to the doctrine of res judicata, which bars claims that were or could have been raised on direct appeal. La Barbera v. Batsch, 10 Ohio St.2d 106, 113, 227 N.E.2d 55 (1967). Relief from judgment under Civ.R. 60(B) should be granted only in the exceptional circumstance. Adomeit v. Baltimore, 39 Ohio App.2d 97, 105, 316 N.E.2d 469 (8th Dist.1974). “For these reasons, a Civ.R. 60(B) motion may not be used as a substitute for appeal to collaterally attack a final judgment.” M & T Bank v. Steel, 8th Dist. Cuyahoga No. 101924, 2015-Ohio-1036, {| 13 (citing Bank of Am., N.A. v. Kuchta, 141 Ohio St. E. 3d 75, 2014-Ohio-4275, 21 N.E.3d 104 al rris v. Anderson, 109 Ohio St.3d 101, 2006- Ohio-1934, 846 N.E.2d 43, {| 8-9). “It is ablished, however, that Civ.R. 60(B) cannot be used as a substitute for an appeal.” Fannie Mae v. Nedbalski, 8th Dist. Cuyahoga No. 102247, 2015-Ohio-2159, {| 14 (citing Doe v. Trumbull Cty. Children Serv. Bd., 28 Ohio St.3d 128, 28 Ohio B. 225, 502 N.E.2d 605 (1986), paragraph two of the syllabus); see also Wells Fargo Bank, N.A. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 30 12:42 PM-22CV003051 0G600 - V3 v. Collins, 8th Dist. Cuyahoga No. 109555, 2021-Ohio-508, ¥ 25 (“it is well established that Civ.R. 60(B) cannot be used as a substitute for an appeal”). Plaintiff filed an appeal to the Court of Appeals, lost and is now seeking redress in this Court. As made abundantly clear by the above cases, the proper procedure would have been to appeal the Court of Appeals’ decision, but Plaintiff has not done so. Civ.R. 60(B) is not an alternative to an appeal and cannot be used as a mechanism to re-litigate a prior order. The Motion should be denied because Civ.R. 60(B) does not permit the Court to reconsider its prior order after the Courts of Appeals has already upheld the same. For this reason, the Motion should be denied. B. The Motion Fails to Set Forth Sufficient Grounds for Relief Even if the Motion were procedurally proper, which it is not, it still fails to set forth sufficient grounds for relief. Plaintiff is once again attempting to re-litigate issues that have been decided multiple times — against Plaintiff. Moreover, there is no evidence of fraud. The Motion should be denied because it is fails to set forth a basis for relief under Civ.R. 60(B). To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving party must demonstrate (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (B)(5); and (3) the motion is made within a reasonable time, and where the grounds for relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the judgment was entered. G7E Automatic Elec. v. ARC Ind., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. If these requirements are not met, the motion should be overruled. Svoboda v. Brunswick, 6 Ohio St.3d 348, 351, 6 Ohio B. 403, 453 N.E.2d 648 (1983). ? In an analogous situation, a Civ.R. 60(B) motion cannot be used to undermine the Court of Appeals’ decision to remand a case. See Jn re G.N., 176 Ohio App. 3d 236, 2008 Ohio 1796, 891 N.E.2d 816, 2008 Ohio App. LEXIS 1539 (2008) (where a judgment has been reversed and remanded, relief from the original judgment pursuant to Civ.R. 60(B) is not available). Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 30 12:42 PM-22CV003051 OG600 - v4 Plaintiff bases his Motion on Civ.R. 60(B)(3) and (5), which each state in part “(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party” and “(5) any other reason justifying relief from the judgment.” Even if Plaintiff's argument had not already been defeated more than once, the Motion would still not be meritorious. The Motion once again alleges a fraud. A claim for common law fraud requires proof of the following elements: (1) a representation or, where there is a duty to disclose, concealment of a fact, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (4) with the intent of misleading another into relying upon it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting injury proximately caused by the reliance. Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167, 169, 10 Ohio B. 500, 462 N.E.2d 407. The Motion fails to set forth the above elements. Critically, there is no argument that Plaintiff was fraudulently prevented by Defendant from presenting Plaintiff’ s defenses to the Foreclosure Action. In other words, he fails to show how the Mahone Statement affected his ability to defeat the Foreclosure Action against him. See Bank of New York v. Stilwell, 5th Dist. Fairfield No. 12 CA 3, 2012-Ohio-4123, § 31 (in addressing borrower’s Civ.R. 60(B) motion “We further find no evidence that Appellee prevented Appellants from having a fair opportunity to present a defense [to the foreclosure action]”) Any claims of fraud related to the Foreclosure Action should have been presented in the Foreclosure Action. See PNC Bank, Natl. Assoc. v. Botts, 10th Dist. No. 12AP-256, 2012 Ohio 5383, 15 (“[t]he fraud or misconduct contemplated by Civ.R. 60(B)(3) is fraud or misconduct on the part of the adverse party in obtaining the judgment by preventing the losing party from fully and fairly presenting his defense, not fraud or misconduct which in itself would have amounted to Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 30 12:42 PM-22CV003051 OG600 - v4 a claim or defense in the case.”); see also U.S. Bank Natl. Assn. v. Marino, 5th Dist. No. 2011CAE11 0108, 2012 Ohio 1487, § 16 (appellant's argument that bank had no standing because it was not the holder of the note at the time the foreclosure complaint was filed was not viable under Civ.R. 60(B)(3), as the adverse party must have prevented the complaining party from fully and fairly presenting its case or defense, and the appellant had the opportunity to participate in the litigation, to file an answer, and to participate in discovery, but chose to not file an answer or any other response). Because Plaintiff does not set forth any indicia of fraud, the Motion should be denied.* Finally, relief under Civ.R. 60(B)(5) is to be granted only in extraordinary circumstances. Salem y. Salem (1988), 61 Ohio App.3d 243, 572 N.E.2d 726. Section 60(B)(5) can only be used when one of the prior sections is not available. Plaintiff has failed to set forth any extraordinary circumstances. He has tried on multiple occasion to use Mahone Statement as a means to seek relief and each time he has been rebuffed. The law does not permit multiple attempts even for those who are pro se. IV. CONCLUSION Accordingly, Defendant respectfully request that the Court deny the Motion and grant Defendant all additional relief to which they are entitled. 5 The Court originally dismissed the Complaint on res judicata grounds. Defendant will not argue this point when the Court has already held that Plaintiff's claims are barred by the doctrine. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 Oct 30 12:42 PM-22CV003051 OG600 - v4 Respectfully submitted, /s/ John R. Wirthlin John R. Wirthlin (0031526) BLANK ROME, LLP 1700 PNC Center 201 East Fifth Street Cincinnati, Ohio 45202 Telephone: (513) 362-8700 Fax: (513) 362-8787 Email: john.wirthlin@blankrome.com Counsel for Defendants CERTIFICATE OF SERVICE Thereby certify that on October 30, 2023, I sent an exact copy of the foregoing by U.S. Mail, postage prepaid, to the following parties Thomas Lane 4878 Dorchester St. Groveport, Ohio 43125 Plaintiff Pro Se GMAC Mortgage LLC 200 Renaissance Center Detroit, Michigan 48243 Defendant s/ John R. Wirthlin John R. Wirthlin