Jenner & Block

Firm Wins Significant Appellate Victory for Washington Mutual Bank

Jenner & Block achieved a significant victory for Firm client Washington Mutual Bank when an Ohio appellate court reversed a lower court’s dismissal of the client’s foreclosure complaint and remanded the case for further proceedings.

The Firm was retained by Washington Mutual on an emergency basis three weeks prior to oral argument, after appellate briefing had been completed. The trial court below had dismissed the otherwise routine residential foreclosure complaint with prejudice, holding that Washington Mutual was barred by state law from filing suit in Ohio and, therefore, Washington Mutual lacked standing and the Court lacked subject matter jurisdiction.  Washington Mutual had appealed on federal preemption grounds.

The Firm’s team first persuaded the Ohio appellate court that appellate briefing should be reopened and oral argument adjourned. In supplemental appellate briefing, the Firm argued the substantive preemption issue and also identified a key procedural error by the trial court. Partner John P. Wolfsmith then argued the case before the appellate court.

After a de novo review of the procedural issue, the appellate court held that the trial court erred as a matter of law and reversed and remanded the case for further proceedings. Among other things, the court determined that Washington Mutual had standing to pursue the appeal and that the trial court erred in its analysis of subject matter jurisdiction.

“Our review of the record reveals no support for the proposition that the trial court lacked subject matter jurisdiction over the foreclosure action,” the court ruled.

As a result of the decision, Washington Mutual can now assert the controlling federal preemption argument, according to the Firm's team.  The trial court's decision that Washington Mutual was barred from filing suit had been rendered without consideration of the federal preemption argument. 

In addition Mr. Wolfsmith, the Jenner & Block team on this case included Partner Barry Levenstam, Co-Chair of the Firm's Appellate and Supreme Court Practice, and Associates Matthew R. Devine and Sapna G. Lalmalani.