Tuesday, December 9, 2025
Wells Fargo Bank, National Association v. Grace M. Doberdruk et al., Case Nos. 2024-1669 and 2025-0071
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Frederick E. Barnes, Case No. 2025-0030
Eighth District Court of Appeals (Cuyahoga County)
In re OVEC Generation Purchase Rider Audit, Case No. 2024-1733
Public Utilities Commission of Ohio
Must Appeal of Foreclosure Be Dismissed if Bond Isn’t Posted and Home Is Sold?
Wells Fargo Bank, National Association v. Grace M. Doberdruk et al., Case Nos. 2024-1669 and 2025-0071
Eighth District Court of Appeals (Cuyahoga County)
ISSUES:
- If a homeowner requests a stay of a foreclosure judgment but can’t post the bond, is an appeal of the judgment moot once the proceeds from the sale of the home are distributed?
- If a homeowner requests a stay but the home is sold and the proceeds are distributed, is the sale voluntary or involuntary?
BACKGROUND:
Wells Fargo Bank, as the trustee for Soundview Home Loan Trust, filed a foreclosure case in December 2022 against Grace Doberdruk. The bank alleged that the 73-year-old defaulted on $449,905 in principal on a Highland Heights property. On top of the principal owed, the lawsuit required payment of 2% interest, starting in June 2023, and other charges.
In Cuyahoga County Common Pleas Court, both sides requested summary judgment. The court granted summary judgment to Wells Fargo in January 2024 and ordered foreclosure on the house.
Doberdruk appealed to the Eighth District Court of Appeals.
Homeowner Asks Court To Place Hold on Sale; Court Requires Bond
While the appeal was pending, the property was sold in May 2024 to a third party for $412,600. Doberdruk filed a motion in the trial court requesting a hold on, or stay of, the sale. The trial court agreed to stay the sale if Doberdruk posted a bond of $472,905 – based on the $449,905 owed plus interest – in 21 days.
Doberdruk didn’t post the bond by the deadline and, in July 2024, the trial court confirmed the sale of the property. The court ordered the sheriff to execute and deliver the deed to the third-party buyer. Doberdruk filed other motions to stop the sale, but the trial court denied them. The Eighth District rejected Doberdruk’s request to stay the distribution of the sale proceeds.
The Eighth District then ordered the parties to address whether the appeal was moot. In October 2024, the appeals court dismissed the appeal, determining it was moot because Doberdruk didn’t post the bond. The court also found that its decision conflicted with rulings from other Ohio appeals courts. Specifically, the state courts are divided on whether an Ohio law provides a remedy for a homeowner after a property is sold and the proceeds are distributed.
The Supreme Court of Ohio agreed to review the conflict among the appellate courts and also accepted an appeal from Doberdruk. The cases were consolidated for briefing and oral argument.
State Law Offers Restitution as Remedy, Homeowner Argues
Doberdruk points to R.C. 2329.45, which states:
“If a judgment in satisfaction of which lands or tenements are sold is reversed on appeal, such reversal shall not defeat or affect the title of the purchaser. In such case restitution in an amount equal to the money for which such lands or tenements were sold, with interest from the day of sale, must be made by the judgment creditor. In ordering restitution, the court shall take into consideration all persons who lost an interest in the property by reason of the judgment and sale and the order of the priority of those interests.”
Doberdruk maintains that the statute provides a remedy to a homeowner after a foreclosure sale and the distribution of the proceeds. When a foreclosure is overturned on appeal, the law requires restitution be paid to the homeowner, she contends.
She rejects the Ninth District Court of Appeals conclusion in Bankers Trust Co. of Cal. v. Tutin (2009) and rulings from courts that have followed its reasoning. Tutin stated that the possibility of restitution through R.C. 2329.45 doesn’t apply if the sale proceeds have been disbursed. Doberdruk argues that the court judgment isn’t completed before the proceeds are distributed, so a case at that stage couldn’t be moot. The Ninth District failed to interpret the statute as written, she contends.
She adds that if the payment of a judgment isn’t voluntary, then an appeal of a foreclosure cannot be moot. In her case, she requested a stay after the property was sold, but her appeal was considered moot because she wasn’t able to secure the stay by posting the bond – a decision that wasn’t voluntary, she maintains. She contends that the bond requirement burdens and discriminates against lower-income litigants, violating their constitutional rights to equal protection under the law.
“A right is not really a right if only those with sufficient assets can exercise it,” her brief states.
For most Americans, their home is their largest asset. But when a home is already encumbered by the mortgage at issue in a foreclosure, then the property can’t be collateral for a bond, Doberdruk maintains. She concludes that R.C. 2329.45 provides the remedy of restitution in these types of circumstances.
Homeowners Must Obtain Bond To Put Hold on Sale, Bank Counters
Wells Fargo contends that when a homeowner fails to obtain a bond to stay the sale of a property, then the remedy of restitution based on R.C. 2329.45 isn’t available. If restitution is available, the homeowner must take action to preserve the remedy, the bank maintains. If the homeowner doesn’t take action, that inaction makes an appeal moot and the case should be dismissed, the bank asserts. In this case, the bank maintains that Doberdruk chose not to post the bond or ask the trial court for a lower one, so there was no relief the appellate court could provide her.
Wells Fargo also argues Tutin was a correct interpretation of the Ohio statute. The Ninth District properly concluded that there is no remedy available to the appealing party after the sale proceeds are distributed, Wells Fargo maintains. Even after the statute was amended in 2016, the statute still didn’t guarantee a right to restitution, the bank argues. Once the proceeds are disbursed, a court no longer holds the funds and there is nothing further for the court to decide, the bank contends.
The bank argues that the completion of a foreclosure judgment is voluntary for the homeowner unless there is economic duress. The inability to pay a bond doesn’t make a sale involuntary, the bank maintains. Based on a 1990 Supreme Court of Ohio decision in Blodgett v. Blodgett, a sale was involuntary if duress was caused by the non-appealing party and rises to the level of coercion, the bank notes. Neither applies in this case, the bank asserts.
The bank also rejects Doberdruk’s constitutional challenges. None are implicated because: 1) a trial court has discretion in setting a bond amount based on each case’s facts and circumstances; 2) an analysis of affordability isn’t required when setting a bond; and 3) the amount of Doberdruk’s bond was rationally related to judgment against her, the bank concludes.
On Nov. 25, Wells Fargo filed a waiver of its participation in oral arguments.
Legal Aid Groups Submit Brief
An amicus curiae brief supporting the Doberdruk’s positions has been submitted jointly by Legal Aid of Southeast and Central Ohio, Legal Aid Society of Cleveland, Legal Aid Society of Southwest Ohio, Advocates for Basic Legal Equality, Legal Aid of Western Ohio, and Community Legal Aid Services. The legal aid groups note that they have represented Ohioans facing the loss of their homes through foreclosure, particularly arising from two economic crises in the last 20 years. They emphasize the importance of low-income homeowners having the right to appellate review in foreclosure cases.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2024-1669 and 2025-0071).
Contacts
Representing Grace Doberdruk: Andrew Engel, notices@dannlaw.com
Representing Wells Fargo Bank, National Association: Stefanie Leigh Deka, sdeka@mcglinchey.com
Are Crime Victims Entitled To Ask To File Delayed Appeals?
State of Ohio v. Frederick E. Barnes, Case No. 2025-0030
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Do crime victims have a constitutional right to seek a delayed appeal?
BACKGROUND:
Frederick Barnes was indicted in Cuyahoga County in December 2017 with breaking and entering, grand theft, and petty theft. The charges arose from an alleged October break-in at a Cleveland property owned by M.S.
About a year earlier, M.S. agreed to let Barnes and members of a church use part of her building for a community outreach/prison reentry program. M.S. gave Barnes a key to the building and to an internal space. After the break-in, M.S. reported it to police and told them that some of her personal property had been stolen. She claimed Barnes stole the items because he was the only person besides herself who had a key to the property. A nail gun and 9mm handgun were taken, she said. The items weren’t located.
In October 2018, Barnes entered a guilty plea to reduced charges – attempted breaking and entering, and petty theft, both misdemeanors. The grand theft charge was dropped. The trial court accepted the plea and scheduled sentencing, where it said restitution would be considered.
At the sentencing hearing, M.S. spoke to the court. She mentioned missing tools and keys. Defense counsel questioned the dates on receipts for replacing the locks and keys, and noted that no receipt for the gun was submitted. The court sentenced Barnes to time served, waived costs, and released him. The court didn’t address restitution.
Property Owner Appeals Lack of Ruling on Restitution
M.S. appealed to the Eighth District Court of Appeals, arguing the trial court failed to order restitution for her losses. In April 2019, M.S. voluntarily dismissed her direct appeal based on an Eighth District decision, State v. Hughes, that led her to think she was barred from filing a direct appeal regarding an alleged Marsy’s Law violation. Marsy’s Law is the state constitutional amendment protecting victim rights. M.S. instead filed a writ of mandamus with the Eighth District and asked for $3,581 in restitution. In December 2019, the appeals court agreed in part, ordering the trial court to hold a hearing to decide whether she was entitled to restitution and how much.
The trial court scheduled the restitution hearing. Several motions were made by each side. Ultimately, in December 2021, Barnes asked the trial court to put the restitution hearing on hold until State v. Brasher was decided by the Supreme Court of Ohio. In December 2022, the Supreme Court ruled in Brasher that victims should assert their rights under Marsy’s Law through a direct appeal, not a writ.
In April 2023, legislation took effect that implemented aspects of Marsy’s Law. M.S. filed a new motion requesting a restitution hearing. She stated that the new laws guaranteed a hearing for victims within 10 days. The trial court scheduled a hearing, but the Eighth District vacated it in October 2024 on procedural grounds. M.S. then filed a request with the Eighth District asking it for “leave,” or permission, to file a delayed appeal. The Eighth District determined that appellate court rules only allow defendants to seek a delayed appeal.
M.S. appealed to the Supreme Court, which accepted the case.
Victims Should Be Able To Pursue Delayed Appeals, Property Owner Argues
M.S. maintains that Marsy’s Law gives victims a constitutional right to appeal and requires victim rights to be “protected in a manner no less vigorous than the rights afforded to the accused.”
If a victim proves losses with competent and credible evidence, the trial court must order full and timely restitution, M.S. asserts. She alleges that the trial court in her case had no discretion to completely ignore her restitution request and the evidence that supported it.
She also argues she was denied a meaningful opportunity to be heard. That denial violates her right to due process to protect her interest in restitution, she contends. And that denial can only be remedied by giving her access to file a delayed appeal, she maintains.
She also asserts that her constitutional right to equal protection under the law was violated, contending that defendants and victims are similarly situated in the criminal justice system. Victims and defendants both have rights and interests at stake under the constitution and by statute, she maintains. Given that defendants have the right to seek a delayed appeal, victims also are entitled to the same right, she concludes.
Rules Don’t Give Victims Right To Ask To File Delayed Appeals, Offender Contends
Barnes responds that the Supreme Court of Ohio rules for appellate cases govern who can request a delayed appeal. There is no right to a delayed appeal, he asserts, only a right to ask permission to file a late appeal. He contends that the rules give only defendants in criminal cases the right to request leave. He notes that M.S. and victim rights advocates can pursue the expansion of the delayed appeal rule with the Court if they want.
He acknowledges that Marsy’s Law entitles victims to full and timely restitution, but argues the provision doesn’t relieve victims from proving they should receive the amount they seek. His brief describes M.S.’s claim to restitution as “a moving target,” lacking documentation until long after the trial court discussion. The Eighth District correctly concluded in 2024 that he had a legitimate expectation of finality in the sentence that was imposed, and M.S. forfeited her right to restitution when she voluntarily dismissed her appeal in April 2019, he contends.
Barnes rejects M.S.’s assertion that defendants and victims are similarly situated in the criminal justice system. A victim isn’t a party in a criminal case and never faces the prospect of prison, and defendants have additional rights under the U.S. Constitution, Barnes notes. M.S. has no legitimate equal protection claim to make, he maintains.
He concludes by noting that restitution wasn’t part of the plea agreement between the prosecutor and defense counsel. Nor was restitution mentioned during the court’s discussion with him regarding the plea, Barnes notes. If he is required to pay restitution now, his guilty plea wasn’t entered into knowingly and intelligently, he contends. In addition, he argues he has completed his sentence, and the trial court no longer has jurisdiction to modify it.
Prosecutor Doesn’t Submit Brief, Won’t Argue Case
The Cuyahoga County Prosecutor’s Office didn’t file a brief in this case and isn’t permitted to participate in oral argument before the Court.
State Public Defender Files Additional Brief
The Ohio Public Defender’s Office filed an amicus curiae brief supporting Barnes. The public defender argues the case contains “repeated and serious procedural flaws” that make it a bad vehicle for the Court to construct a general rule about the procedural rights of victims. The public defender suggests that the Court dismiss the case as improvidently allowed. The office believes the rulemaking process is the best place to address how and when a victim can seek leave to file a delayed appeal while respecting defendant rights.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing M.S.: Elizabeth Well, ewell@ocvjc.org
Representing Frederick E. Barnes from the Cuyahoga County Public Defender’s Office: Erika Cunliffe, ecunliffe@cuyahogacounty.gov
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Kristen Hatcher, ccpointake@prosecutor.cuyahogacounty.us
Were Costs Passed on to Ratepayers Justified for Power Plant Operations?
In re OVEC Generation Purchase Rider Audit, Case No. 2024-1733
Public Utilities Commission of Ohio
ISSUES: Did the Public Utilities Commission of Ohio properly find an audit determined that it was prudent and reasonable for about $115 million in costs from two coal-fired power plants to be passed on to customers of three Ohio utilities?
BACKGROUND:
The Ohio Valley Electric Corporation (OVEC) was formed in 1952 by investment-owned utilities to provide electricity to a federal government uranium enrichment facility. The electricity was supplied by two coal-fired power plants constructed in the 1950s, one in Ohio and another in Indiana. The enrichment facility no longer needs the majority of the power generated by the plants, and it is now owned by nine parent companies of electric utility providers. The nine companies and OVEC control OVEC operations through a board of directors, and the investor-owned utilities, known as sponsoring companies, receive a share of the electricity generated by OVEC that is sold on the open market. They also split the costs to operate it.
Three Ohio utilities, Duke Energy, AES Ohio, and AEP Ohio, collectively own about 34% of OVEC. Prior to 2019, each company had its own rider in which the Public Utilities Commission of Ohio (PUCO) allowed the utilities to pass on the sponsoring companies’ costs of operating OVEC to their customers.
In 2019, state lawmakers passed House Bill 6, which created a single legacy generation resource rider, which would be a single rider that each of the three Ohio companies would use to pass on costs from OVEC. The bill required the rider to be audited in 2020 and periodically for several years after.
The PUCO commissioned an outside auditing firm to conduct the audit. The audit analyzed several issues of the OVEC operations and determined about $115 million of OVEC expenses met the law’s requirement of being “prudent and reasonable” costs that could be passed on to ratepayers of the three companies.
Four organizations challenged the findings, including the Ohio Environmental Council and the Ohio Manufacturers’ Association Energy Group (OMAEG). The PUCO rejected the challenger’s claims and approved the audit findings. The commission allowed the companies to retain the money collected from the ratepayers.
OMAEG and the Environmental Council separately appealed the decision to the Supreme Court of Ohio, which must hear these types of appeals.
PUCO Didn’t Verify Audit’s Conclusions, Environmental Organization Asserts
The Environmental Council explains that H.B. 6 enacted R.C. 4928.148, which has explicit terms on how the PUCO should audit the OVEC costs. Previously, the three Ohio utilities had separate riders with different terms, which allowed them to recover their share of OVEC costs. The legacy generation rider was created to provide a consistent rider to ensure that only “prudent and reasonable” costs could be recovered, the council notes.
The council argues that “prudent” and “reasonable” are two different standards, and the audit approved by the PUCO only focused on whether the actions taken by OVEC in 2020 were prudent. The organization asserts that prudent decisions are those that reflect what a reasonable utility operator exercising good judgment would take based on the evidence available at the time. Reasonable has a different meaning, the council argues, that considers whether the decision made by the operators provides a benefit to the ratepayers and the public interest.
The council argues the 2020 audit reveals several unreasonable decisions by OVEC and the sponsoring companies. OVEC utilizes a coal purchase contract set in 2012, which required it to pay a price for coal that is much higher than coal prices in 2020, the council notes. Passing along the inflated cost of coal to ratepayers is unreasonable, the council argues.
Another key issue is the decision to operate the plant at all times, even when the costs of producing the electricity are higher than the price of electricity available to the utilities on the open market, the council asserts. The organization argues the PUCO is allowing the companies to operate the plant inefficiently with the ratepayers absorbing the consequences.
Audit Review Process Favored Utilities, Manufacturing Group Maintains
OMAEG raises several of the same objections to the approval of the audit as the Ohio Environmental Council. OMAEG adds that the process for approving the audit was flawed, particularly the rejection of testimony from an OMAEG witness in the case and the failure to review a key piece of evidence regarding the reported price of energy on the wholesale market. The PUCO maintained that R.C. 4928.148 created a narrow audit process that focused solely on the OVEC operations in 2020, OMAEG asserts. The group argues the interpretation was so narrow that the PUCO wouldn’t consider the actions of the companies in past years and the information presented to the legislature to encourage the adoption of the legacy generation resource rider in H.B. 6.
OMAEG argues there is no way to evaluate whether the companies made prudent and reasonable decisions in 2020 without comparing them to prior audits and other reviews that raised questions in the past about OVEC operations. OMAEG argues that had the information been factored into the case, it is clear that OVEC disregarded audit findings in the past that would have led it to make better decisions in 2020. The group instead allowed the companies, without any evidence to justify their actions, to pass on $115 million in unreasonable costs to ratepayers. OMAEG and the Environmental Council ask the PUCO to refund the money to customers.
Commission Followed State Law, Regulators Argue
The PUCO rejects the claim that the law distinguishes between “prudent” and “reasonable,” and instead finds they have a similar meaning. The commission argues that the audit produced findings detailing why it was prudent and reasonable for the companies to join the other owners in deciding how to operate OVEC in 2020. The three Ohio utilities, a minority of the owners, don’t have the authority themselves to change how OVEC operates, the PUCO notes, and cannot dictate whether the plants should operate all the time, or only on an as-needed basis, as suggested by the opponents.
The PUCO argues that the audit provided sufficient evidence to determine whether the charges were prudent and reasonable, and it was justifiable to pass the costs on to ratepayers. The PUCO supports its stance to limit the testimony about the audit to the decisions made in 2020 and not to examine materials about events occurring in preceding years. The commission states the law requires a narrow focus on 2020 operations and that the legacy generation resource rider has terms that don’t make an accurate comparison to the previous riders.
Audit Findings Justify Charges, Companies Assert
The Court permitted the three Ohio OVEC companies to intervene in the case and argue for themselves. The companies reiterated that they make up three of the 10 members of the governing board and pay about a third of the operational costs of OVEC.
The companies explain that OVEC acts as a “hedge” for its ratepayers. When the plant operates at costs below the electric market rate, ratepayers enjoy a credit, and their overall costs of electricity are reduced. When the plant operates above the market price, ratepayers pay an additional charge. The rider only contains costs to customers that the PUCO finds prudent and reasonable, the companies note. The audit provided several suggestions for OVEC to consider improving operations, but concluded all of the costs passed on were justified, the companies maintain.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Ohio Environmental Council: Karin Nordstrom, knordstrom@theoec.org
Representing the Ohio Manufacturers’ Association Energy Group: Kimberly Bojko, bojko@carpenterlipps.com
Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Ambrosia Wilson, ambrosia.wilson@ohioago.gov
Representing Ohio Power Company, doing business as AEP Ohio: Steven Nourse, stnourse@aep.com
Representing Dayton Power and Light Company, doing business as AES Ohio: Christopher Hollen, christopher.hollen@aes.com
Representing Duke Energy Ohio: Rocco D’Ascenzo, rocco.dascenzo@duke-energy.com
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