Federal Practice Manual for Legal Aid Attorneys
3.1 STANDING
The Supreme Court has made it clear that the burden of establishing standing rests on the plaintiff. At each stage of the litigation—from the initial pleading stage, through summary judgment, and trial—the plaintiff must carry that burden. Standing must exist on the date the complaint is filed and throughout the litigation. Moreover, standing cannot be conferred by agreement and can be challenged at any time in the litigation, including on appeal, by the defendants or, in some circumstances, by the court sua sponte. Finally, plaintiffs must demonstrate standing for each claim and each request for relief. There is no “supplemental” standing: standing to assert one claim does not create standing to assert claims arising from the same nucleus of operative facts.
Federal Practice Manual for Legal Aid Attorneys
3.1 STANDING
The Supreme Court has made it clear that the burden of establishing standing rests on the plaintiff. At each stage of the litigation—from the initial pleading stage, through summary judgment, and trial—the plaintiff must carry that burden. Standing must exist on the date the complaint is filed and throughout the litigation. Moreover, standing cannot be conferred by agreement and can be challenged at any time in the litigation, including on appeal, by the defendants or, in some circumstances, by the court sua sponte. Finally, plaintiffs must demonstrate standing for each claim and each request for relief. There is no “supplemental” standing: standing to assert one claim does not create standing to assert claims arising from the same nucleus of operative facts. In 2008, when the Ohio Supreme Court put out the call for private attorneys to assist legal aids in providing pro bono representation foreclosure cases, it sponsored a two-day foreclosure defense training in conjunction with the Ohio State Bar Association, The Ohio Legal Assistance Foundation, and the Ohio Attorney General’s office. One seemingly “knock it out of the ballpark” defense covered in that training was real party standing. Ohio Civil Rule 17 (A) states “every action shall be prosecuted in the name of the real party in interest.” In cases to enforce an obligation to pay mortgage debt, the party who owns the note would be the real party with standing to sue. With mortgage debt so frequently sold and securitized, the party foreclosing is rarely the one originally named on the note. Foreclosing plaintiffs in a rush to foreclose often file the complaint before the note has been negotiated to them in what one judge called “putting the cart before the house.” 1The note, as a negotiable instrument, must be properly negotiated to transfer the right to enforce. Ohio’s uniform commercial code at R.C. 1303.21(B) governs note transfer and provides that “ * * * if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its endorsement by the holder.” Anyone who has heard Professor Doug Whaley speak on the Uniform Commercial Code knows “only the current holder in physical possession of the original promissory note can file the lawsuit.” Attorneys defending foreclosure cases, armed with statutory support and Ohio Civil Rule 17, were admonished to review the note and mortgage attached to the complaint to determine if those documents demonstrated that the Plaintiff had standing to sue either by being the original named lender on the note, or by endorsement on the note or allonge prior to the filing of the complaint. When this defense was raised, the foreclosing plaintiffs would scurry in to file notes and allonges executed post filing and argue this was a mere “technical” defense. Who cares so long as the documents eventually catch up with the litigation? Federal courts in Ohio cared. They routinely dismiss foreclosure actions where the note transfer is post complaint filing, but Ohio Courts of Appeal are split on whether this “technical” defense is viable. In 2007 the Ninth District reasoned real party status could be acquired by assignment while a foreclosure case is pending so long as the after filing assignment does not “prejudice” the defendant. Bank of New York v. Stuart, 9th Dist. No. 06CA008953, 2007-Ohio-1483 ¶ 13 (March 30, 2007). The First District Court of Appeals in Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285 (Sept. 12, 2008) disagreed with the Ninth District’s reasoning and instead declared: There is little case-law guidance on the issue whether Wells Fargo, which was clearly not a real party in interest when the suit was filed, could later have cured the defect by producing an after-acquired interest in the litigation. We hold that the defect could not have been cured in that way. (emphasis added) Since the Byrd and Stuart decisions initially created the split, other Ohio Courts of Appeal have weighed in. The Eighth District followed Byrd’s reasoning in Wells Fargo Bank v. Jordan, Cuyahoga App. No. 91675, 2009-Ohio- 1092 (March 12, 2009), holding that unless a plaintiff holds the note at the time the complaint is filed it cannot invoke the jurisdiction of the court, and cannot cure its lack of standing by subsequently obtaining an interest in the mortgage. The Fifth District however took the opposite view, reasoning that Rule 17 only requires that the real party of interest prosecute the claim, even if it was initially filed by a party without real party status.U.S. Bank Natl. Assn. v. Bayless, 5th Dist. No. 09 CAE 01 004 (Nov. 13, 2009). This summer’s Tenth District decision in Wells Fargo Bank, N.A. v. Sessley, 935 N.E.2d 70, Franklin App. No. 09AP-178, 2010-Ohio-2902 (June 24, 2010) acknowledged Byrd reasoning that a party had to have real party standing to even invoke the jurisdiction of a court and even reasoned that the plaintiff, lacking real party standing when it filed the foreclosure suit because it obtained the assignment after filing, could not “cure” by ratification since it filed the action on its own behalf. Nonetheless the Court allowed standing to be cured by the subsequent joining of the real party via a third party complaint. Had the real party not been joined by the third party complaint, seemingly, the Tenth District would have followed Byrd and dismissed the case. The Ohio Attorney General took a stand when the issue came before the Second District Court of Appeal, and along with several legal aid organizations filed amicus briefs supporting the homeowner’s standing defense. The Second District sided with the Byrd line of cases, detailing how the obviously flawed affidavits, note and allonges failed to comply with note transfer requirements under Ohio’s uniform commercial code, and therefore affirmed dismissal of the foreclosure action for lack of standing. HSBC Bank USA v. Thompson, 2010 WL 3451130, *7, 2010- Ohio-4158, 4158 (Ohio App. 2 Dist. Sep 03, 2010). Until the Ohio Supreme Court decides where we stand on real party standing, the ability to defeat foreclosure due to after filing note transfers will depend on where the case is filed. With media attention and the Ohio Attorney General’s amicus brief in Thompson urging the Courts that these are not mere “technical defenses” but rather that documentation of standing goes “to the heart and integrity of the legal system”2 perhaps Ohio court will look more critically at the practice of putting the cart before the house. 1. Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 287 (1st Dist. Sept. 12, 2008). 2. Merit Brief of Amicus Curiae Ohio Attorney General Richard Cordray in Support of Defendant Jamie Thompson in HSBC Bank USA v. Thompson, CA 023761 (Ohio App. 2 Dist.) p. 1.
A party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.”
Venture Holdings & Acquisitions Grp.,LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773, 776 (Fla. 4th DCA 2011).
_______________________________
Merit Decision: Court Smacks Freddie Mac in Home Foreclosure Case. Federal Home Loan Mortgage Corp. v. Schwartzwald.
For Andy Engel (Schwartzwald’s attorney): As a practitioner focusing on foreclosure defense what is your thoughts (to be pro-active) for those who lost their home under the “cure,” to file a 60(B)(5) motion and place the new owner, title company and mortgage company on notice? Andy Engel says:
November 2, 2012 at 9:53 am
If the foreclosing bank relied on an after-acquired interest in the note and mortgage to establish its right to enforce the agreements, then I would certainly seek to vacate the judgment. But you need not proceed under Civ.R. 60(B) because the judgment is void. The Schwartzwald decision states that standing has to exist at the time the case is filed, and if it doesn’t exist, the jurisdiction of the common pleas court was not invoked. A court without jurisdiction cannot enter any judgment (except one dismissing the case for lack of jurisdiction). A motion to vacate a void (as opposed to a voidable) judgment is not based on Civ. R. 60(B), it invokes the court’s inherent power. Patton v. Diemer, 35 Ohio St. 3d 68 (1988).
More Courts Reject Eleventh-Hour Attempts To Avoid Foreclosure Based On An Alleged Lack Of Standing
Two more Appellate Division panels have refused to allow defendant’s in foreclosure lawsuits to raise standing as an eleventh-hour defense. As we previously reported — Changing Tide in Forclosure Litigation? Courts Taking Closer Look When Defendants Assert Lack Of Standing At Last Minute — there is now a clear trend against allowing defendants to stay silent in the face of a foreclosure lawsuit only to appear at the last minute, usually on the eve of a sheriff’s sale, and seek to vacate final judgment based on an alleged lack of standing to foreclose. Two recent Appellate Division cases continue to bring this point home. In IndyMac Bank FSB v. DeCastro, [enhanced version available to lexis.com subscribers], a residential borrower moved to vacate final judgment and dismiss the complaint 15 months after it was entered, arguing that he was not served with the complaint. The motion was denied. Defendant filed a second motion to vacate, arguing, for the first time, that the bank lacked standing to foreclose because it was not assigned the mortgage until after the complaint was filed. This motion was denied as untimely and defendant appealed. In an opinion, dated March 13, 2013, the Appellate Division affirmed. In its decision, among other things, the Appellate Division rejected defendant’s standing argument, noting: “[W]e have now made clear that lack of standing is not a meritorious defense to a foreclosure complaint.” Moreover, the Appellate Division held that defendant’s standing argument was meritless “particularly given defendant’s unexcused, years-long delay in asserting that defense or any other claim.” In arriving at this decision, the Appellate Division relied on many of the cases discussed in our prior post.
Similarly, in Wells Fargo Bank, N.A. v. Lopez, [enhanced version available to lexis.com subscribers], a different Appellate Division panel rejected another residential home owner’s last-minute attempt to raise standing as a defense to the foreclosure complaint. The facts in that case were a bit more egregious because the borrower contributed to the four-year delay between the entry of default and the filing of his motion to vacate by filing numerous bankruptcy petitions and seeking a stay to attempt to short sell the property. Nonetheless, the Appellate Division affirmed the trial court’s denial of the motion to vacate holding, among other things, that the lack of standing, even if true, was not a meritorious defense to a foreclosure complaint, particularly in the post-judgment context. Again, the Appellate Division relied primarily on the cases included in our prior post.
Bank of New York Mellon v. Shaffer (Ohio 7/13) Opinion and dissent address late filing, void vs. void, standing and jurisdiction. Since the trial court lacked subject-matter jurisdiction and its default judgment was therefore void, Shaffer was not required to comply with the time requirements of Civ.R. 60(B) in order to be entitled to an order vacating the judgment.
BAC Home Loan Servicing v. Mapp (Ohio 7/13) We therefore reverse the trial court’s finding that “BAC’s alleged lack of standing does not constitute a meritorious defense” and remand the case to the trial court for a hearing to determine BAC’s standing to sue, and correspondingly whether the trial court had jurisdiction over the foreclosure proceedings. On remand, the trial court must determine whether MERS had the authority to assign the mortgage and/or the note as the nominee for Countrywide in light of the claim that Countrywide was no longer in existence when the mortgage was assigned to BAC.
“a common pleas court cannot substitute a real party in interest for
another party if no party with standing has invoked its jurisdiction in the first instance.”
OH: Federal Court Dismisses FCs en Masse for Lack of Standing
by Peter L. Mehler
Reimer, Lorber & Arnovitz Co., L.P.A. – USFN Member (OH)
In what may be a very large obstacle to improving foreclosure timelines, a recent decision from the federal district court for the Northern District of Ohio has dealt a blow to the prevailing practice in the secondary mortgage market. Judge Boyko ruled that the plaintiff in a judicial foreclosure action must be the holder of the note and mortgage at the time the complaint is filed. In Ohio, an endorsement of the note and an assignment of the mortgage recorded in the county where the real property is located is the evidence of ownership.
In the cases before the judge, the assignments had not as yet been filed. In his decision that has led to the dismissal of well over 100 pending cases, Judge Boyko held, “… none of the assignments show the named Plaintiff to be the owner of the rights, title and interest under the mortgage at issue as of the date of the foreclosure complaint … For all the foregoing reasons, the above-captioned foreclosure complaints are dismissed without prejudice.” (In re Foreclosure Cases, 1:07CV2282, N.D. Ohio, Oct. 31, 2007).
The court’s order is the first time lenders in Ohio will be required to be the holder of the note and mortgage at the time the complaint is filed. The ruling is so far confined to cases filed in the federal courts in both the Northern and Southern Districts of Ohio.1 However, it is virtually certain that the ruling will begin to be adopted in state court proceedings throughout Ohio and could extend to other states; the decision may also have an impact in bankruptcy proceedings. The court’s ruling was reported in the New York Times, appearing on the front page of the business section. (Foreclosures Hit a Snag for Lenders, Gretchen Morgenson, NY Times, Nov. 15, 2007)
Since the explosion of the secondary mortgage market, it has been commonplace in the mortgage banking industry to commence foreclosure proceedings without an executed assignment. Attorneys’ offices routinely file complaints without the documents, receiving the assignment sometimes weeks or months later.
The impact of the ruling is not yet known beyond the few hundred cases in Ohio that will have to be re-filed when the servicer obtains possession of the executed assignment, demonstrating that the foreclosing plaintiff is the holder of the note and mortgage before re-filing the complaint in foreclosure.
The fallout is in its infancy, so it is too soon to speculate on the overall impact the court’s ruling will have on the servicing industry. There will certainly be added pressure on timeline management, and internal practices will need to be reconfigured to ensure compliance with this ruling. Obviously, business as usual is a thing of the past.
Endnote
1In a separate ruling, Judge Rose also held that the foreclosing plaintiff must be the holder of both the note and mortgage at the time the complaint is filed. (In re Foreclosure Cases, 3:07CV043, S.D. Ohio, Nov. 15, 2007).
Ohio: Black v. Aristech Chem. Co., Case No. 07CA3155, 2008 Ohio 7038; 2008 Ohio App. LEXIS 5890, Ohio Ct. App., 4th Dist., Scioto County, December 23, 2008):
• Subject-matter jurisdiction describes a court’s “statutory or constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better Environment (1998), 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210; see, also, Pratts, at P11. “Once a tribunal has jurisdiction over both the subject matter of an action and the parties to it, ‘* * * the right to hear and determine is perfect; and the decision of every question thereafter arising is but the exercise of the jurisdiction thus conferred * * *.'” State ex rel. Pizza v. Rayford (1992), 62 Ohio St.3d 382, 384, 582 N.E.2d 992, quoting Sheldon’s Lessee v. Newton (1854), 3 Ohio St. 494, 499. “[A] judgment rendered by a court lacking subject matter jurisdiction is void ab initio.” Patton v. Diemer (1988), 35 Ohio St.3d 68, 70, 518 N.E.2d 941; see, also, Pratts, at P12.
• In addition to subject-matter jurisdiction, a court must also have jurisdiction over a particular case. See Pratts, at P12. “‘”[J]urisdiction over the particular case encompasses the trial court’s authority to determine a specific case within that class of cases that is within its subject matter jurisdiction.”‘” Id., quoting State v. Parker, 95 Ohio St.3d 524, 2002 Ohio 2833, 769 N.E.2d 846, at P22 (Cook, J., dissenting), quoting State v. Swiger (1998), 125 Ohio App.3d 456, 462, 708 N.E.2d 1033. Unlike lack of subject-matter jurisdiction which renders a judgment void, “‘lack of jurisdiction over the particular case merely renders the judgment voidable.'” Id., quoting Parker at P22 (Cook, J., dissenting), quoting Swiger, 125 Ohio App.3d at 462. Thus, “‘”[w]here it is apparent from the allegations that the matter alleged is within the class of cases in which a particular court has been empowered to act, jurisdiction is present. Any subsequent error in the proceedings is only error in the ‘exercise of jurisdiction,’ as distinguished from the want of jurisdiction in the first instance.”‘” Pratts, at P22, quoting State v. Filiaggi (1999), 86 Ohio St.3d 230, 240, 1999 Ohio 99, 714 N.E.2d 867, quoting In re Waite (1991), 188 Mich.App. 189, 200, 468 N.W.2d 912. If a judgment is merely voidable, it may not be collaterally attacked. See Clark v. Wilson (July 28, 2000), Trumbull App. No. 2000-T-0063, 2000 Ohio App. LEXIS 3400 (stating that “if a judgment is deemed voidable, it will have the effect of a proper legal order unless its propriety is successfully challenged through a direct attack on the merits”).
Ohio: State ex rel. Sautter v. Grey, CASE NO. 06-CA-6 , 2007 Ohio 1831; 2007 Ohio App. LEXIS 1673 (Ohio Ct. App. 5th Dist. Morrow County, April 18, 2007):
• “Jurisdiction has been described as ‘a word of many, too many, meanings.'” Pratts v. Hurley, 102 Ohio St.3d 81, 88, 2004 Ohio 1980, 806 N.E.2d 992, quoting United States v. Vanness (C.A .D.C.1996), 318 U.S. App. D.C. 95, 85 F.3d 661, 663, fn. 2. Because the term “jurisdiction” is used in various contexts and often is not properly clarified, misinterpretation and confusion has resulted. Pratts v. Hurley, 102 Ohio St.3d at 88.”
• ‘Jurisdiction’ means ‘the courts’ statutory or constitutional power to adjudicate the case.’ “Pratts v. Hurley, 102 Ohio St.3d at 83, quoting Steel Co. v. Citizens for a Better Environment (1998), 523 U.S. 83, 89, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (emphasis omitted); Morrison v. Steiner (1972), 32 Ohio St.2d 86, 87, 290 N.E.2d 841, paragraph one of the syllabus; see, also, In re J.J., 111 Ohio St.3d 205, 207, 2006 Ohio 5484, 855 N.E.2d 851. The term “jurisdiction” “encompasses jurisdiction over the subject matter and over the person.” Pratts v. Hurley, 102 Ohio St.3d at 83, citing State v. Parker, 95 Ohio St.3d 524, 529, 2002 Ohio 2833, 769 N.E.2d 846. (Cook, J., dissenting).
• “Because subject-matter jurisdiction goes to the power of the court to adjudicate the merits of a case, it can never be waived and may be challenged at any time.” Pratts v. Hurley, 102 Ohio St.3d at 83, citing United States v. Cotton (2002), 535 U.S. 625, 630, 122 S. Ct. 1781, 152 L. Ed. 2d 860; State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St.3d 70, 75, 1998 Ohio 275, 701 N.E.2d 1002, reconsideration denied (1999), 84 Ohio St. 3d 1475, 704 N.E.2d 582. A distinction exists between a court that lacks subject-matter jurisdiction over a case and a court that improperly exercises subject-matter jurisdiction once conferred upon it. Pratts v. Hurley, 102 Ohio St.3d at 83-84.
• Distinguishing between subject-matter jurisdiction and jurisdiction over a particular case is important “because ‘ ” ‘[i]t is only where the trial court lacks subject matter jurisdiction that its judgment is void; lack of subject matter jurisdiction over the particular case merely renders the judgment voidable’ ” ‘ “In re J.J., 111 Ohio St.3d at 207, quoting Pratts v. Hurley, 102 Ohio St.3d at 83, quoting State v. Parker, 95 Ohio St.3d at 529 (Cook, J., dissenting), quoting State v. Swiger (1998), 125 Ohio App.3d 456, 462, 708 N.E.2d 1033. “Jurisdiction over the particular case,” as the term implies, involves ” ‘ “the trial court’s authority to determine a specific case within that class of cases that is within its subject matter jurisdiction.” ‘ ” Pratts, 102 Ohio St.3d at 83 quoting Swiger, 125 Ohio App.3d at 462.
• A void judgment is one rendered by a court lacking subject-matter jurisdiction or the authority to act. Pratts v. Hurley, 102 Ohio St.3d at 84; State v. Beasley (1984), 14 Ohio St.3d 74, 75, 14 Ohio B. 511, 471 N.E.2d 774. A voidable judgment, on the other hand, is a judgment rendered by a court having jurisdiction/authority and, although seemingly valid, is irregular and erroneous. State v. Montgomery, Huron App. No. H-02-039, 2003 Ohio 4095.
• A voidable judgment is one rendered by a court having jurisdiction and although seemingly valid, is irregular and erroneous. Black’s Law Dictionary (7 Ed.1999) 848. A voidable judgment is subject to direct appeal, R.C. 2505.03(A), Article IV, Section 3(B)(2), Ohio Constitution, and to the provisions of Civ.R. 60(B). A Civ.R. 60(B) application for relief must be made to the trial court that rendered the judgment from which relief is sought.
• As the Eleventh District Court of Appeals noted in Clark v. Wilson (July 28, 2000), Trumbull App. No. 2000-T-0063, 2000 Ohio App. LEXIS 3400: “The distinction between ‘void’ and ‘voidable’ is crucial. If a judgment is deemed void, it is considered a legal nullity which can be attacked collaterally. Conversely, if a judgment is deemed voidable, it will have the effect of a proper legal order unless its propriety is successfully challenged through a direct attack on the merits. * * * ” “Where it is apparent from the allegations that the matter alleged is within the class of cases in which a particular court has been empowered to act, jurisdiction is present. Any subsequent error in the proceedings is only error in the ‘exercise of jurisdiction’ as distinguished from the want of jurisdiction in the first instance.” State v Filiaggi (1999), 86 Ohio St.3d 230, 240, 1999 Ohio 99, 714 N.E.2d 867, quoting In re Waite (1991), 188 Mich. App. 189, 200, 468 N.W.2d 912.
Ohio: Wash. Mut. Bank v. Novak, No. 88121 , 2007 Ohio 996; 2007 Ohio App. LEXIS 990 (Ohio Ct. App, 8th Dist. Cuyahoga County 2007):
• Civ.R. 17(A) provides in part that “every action shall be prosecuted in the name of the real party in interest. * * * No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest. Such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. “A “real party in interest” is “one who has a real interest in the subject matter of the litigation, and not merely an interest in the action itself, i.e., one who is directly benefitted or injured by the outcome of the case.” Shealy v. Campbell (1985), 20 Ohio St.3d 23, 24-25, 20 Ohio B. 210, 485 N.E.2d 701.
• If a claim is asserted by one who is not the real party in interest, then the party lacks standing to prosecute the action, but the court is not deprived of subject matter jurisdiction. See State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St. 3d 70, 1998 Ohio 275, 701 N.E.2d 1002, citing State ex rel. Smith v. Smith (1996), 75 Ohio St.3d 418, 420, 1996 Ohio 215, 662 N.E.2d 366, 369; State ex rel. LTV Steel Co. v. Gwin (1992), 64 Ohio St.3d 245, 251, 1992 Ohio 20, 594 N.E.2d 616, 621.
• Because compliance with Civ.R. 17 is not necessary to invoke the jurisdiction of the court of common pleas, State ex rel. Tubbs Jones v. Suster; First Union Natl. Bank v. Hufford (2001), 146 Ohio App.3d 673, 2001 Ohio 2271, 767 N.E.2d 1206, the failure to name the real party in interest is an objection or defense to a claim which is waived if not timely asserted. Id. See, also, MacLellan v. Motorist Ins. Co. (Nov. 8, 1993), Cuyahoga App. No. 64090, 1993 Ohio App. LEXIS 5557; Mikolay v. Transcon Builders, Inc. (Jan. 22, 1981), Cuyahoga App. No. 42047, 1981 Ohio App. LEXIS 11690.
• Applying the foregoing to this matter, we initially note that defendant offered no evidence to demonstrate that he was entitled to relief from judgment under the grounds set forth in Civ.R. 60(B)(1)-(5), as he simply claimed that Washington Mutual was not the real party in interest. Further, defendant did not raise this contention until five years after the complaint was filed. Accordingly, the objection that Washington Mutual was not the real party in interest was not timely raised as a matter of law and was waived. First Union Natl. Bank v. Hufford, supra. We therefore do not accept defendant’s claim that the default was “void” such that he is entitled to relief from judgment under Civ.R. 60(B).
[Cite as Wells Fargo v. Burrows, 2012-Ohio-5995.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
WELLS FARGO BANK, N.A.
Appellee
v.
JAMES R. BURROWS, et al.
Appellants
C.A. No. 26326
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO CASE No. CV 2009129230 DECISION AND JOURNAL ENTRY Dated: December 19, 2012
ASHTABULA COUNTY, OHIO
FEDERAL HOME LOAN MORTGAGE :
O P I N I O N
CORPORATION,
Plaintiff-Appellee,
: CASE NO. 2012-A-0011
– vs –
JANE RUFO, et al.,
Defendant-Appellant.
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Nationstar Mortgage, LLC Court of Appeals No. L-12-1002
Appellee Trial Court No. CI0201005958
v.
Robert J. Van Cott, et al. DECISION AND JUDGMENT
Appellants Decided: December 7, 2012
[Cite as Bank of Am. v. Kuchta, 2012-Ohio-5562.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
BANK OF AMERICA
Appellee
v.
GEORGE M. KUCHTA, et al.
Appellants
C.A. No. 12CA0025-M
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO
CASE No. 10CIV1003
DECISION AND JOURNAL ENTRY
Dated: December 3, 2012
[Cite as U.S. Bank, N.A. v. McGinn, 2013-Ohio-8.] IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
U.S. Bank, N.A., as Trustee Court of Appeals No. S-12-004
Appellee Trial Court No. 08 CV 602
v.
Ronald W. McGinn, et al. DECISION AND JUDGMENT
Appellants Decided: January 4, 2013
[Cite as Flagstar Bank, FSB v. Harvey, 2013-Ohio-2666.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
FLAGSTAR BANK, FSB
Appellee
v.
JIBAU HARVEY, et al.
Appellant
C.A. No. 26594
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO
CASE No. CV 2011 01 0243
DECISION AND JOURNAL ENTRY
Dated: June 26, 2013 [Cite as Wells Fargo Bank N.A. v. Horn, 2013-Ohio-2374.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
WELLS FARGO BANK NA
Appellee
v.
BRIAN HORN, et al.
Appellants
C.A. No. 12CA010230
APPEAL FROM JUDGMENT
ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO
CASE No. 10CV167220
DECISION AND JOURNAL ENTRY
Dated: June 10, 2013
EMC Mortgage v. Atkinson (Ohio 3/13) Mr. Atkinson asserts in his sole assignment of error that the trial court erred in denying his Civ.R. 60(B) motion to vacate the agreed judgment decree. We agree that Mr. Atkinson is entitled to relief from judgment. Upon review of the record on appeal, this Court questioned whether EMC had standing to file an action in foreclosure at the time it filed its complaint. Thus, this Court issued an order requiring EMC to respond and demonstrate its standing. EMC failed to do so.
As EMC has not established it had standing to bring this action at the time it filed its complaint in foreclosure, the judgment against Mr. Atkinson cannot stand. In light of the foregoing, we can only conclude that Mr. Atkinson is entitled to have the agreed judgment entry of foreclosure vacated. [Cite as EMC Mtge. Corp. v. Atkinson, 2013-Ohio-782.] STATE OF OHIO ) IN THE COURT OF APPEALS s: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
EMC MORTGAGE CORPORATION
Appellee
v.
ROBERT W. ATKINSON, JR., et al.
Appellant
C.A. No. 25968
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2003 04 2401 [Cite as BAC Home Loan Serv. v. McFerren, 2013-Ohio-3228.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
BAC HOME LOANS SERVICING, LP fka
COUNTRYWIDE HOME LOANS
SERVICING, LP
Appellee
v.
GARRICK P. MCFERREN, aka
GARRICK MCFERREN, et al.
Appellant
C.A. No. 26384
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO
CASE No. CV-2011-06-3570
DECISION AND JOURNAL ENTRY
Dated: July 24, 2013