[Cite as Bank of NY Mellon Trust Co. v. Shaffer, 2013-Ohio-3205.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
THE BANK OF NEW YORK MELLON : OPINION TRUST COMPANY, N.A. f.k.a. THE BANK OF NEW YORK TRUST COMPANY, N.A., : AS SUCCESSOR IN INTEREST TO CASE NO. 2011-G-3051 JPMORGAN CHASE BANK, NATIONAL : ASSOCIATION, f.k.a. JPMORGAN CHASE BANK, AS TRUSTEE-SURF-BC2, :
Plaintiff-Appellee, :
- vs - :
THERESA A. SHAFFER a.k.a. : THERESA MCFAUL, et al., : Defendant-Appellant, : GEAUGA COUNTY TREASURER, et al., : Defendants-Appellees. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 09F000648.
Judgment: Reversed and remanded.
Matthew I. McKelvey, and Bill L. Purtell, Lerner, Sampson & Rothfuss, 120 East Fourth Street, Suite 800, P.O. Box 5480, Cincinnati, OH 45202 (For Plaintiff-Appellee).
James R. Douglass, James R. Douglass Co., L.P.A., 4600 Prospect Avenue, Shaker Heights, OH 44103 (For Defendant-Appellant).
David P. Joyce, Geauga County Prosecutor, Courthouse Annex, 231 Main Street, Chardon, OH 44024 (For Appellee-Geauga County Treasurer).
David W. Cliffe, 525 Vine Street, #800, Cincinnati, OH 45202 (For Appellee-The Huntington National Bank, Successor by Merger to Sky Bank). CYNTHIA WESTCOTT RICE, J.,
{¶1} Appellant, Theresa A. Shaffer, appeals the default judgment of foreclosure
entered in favor of Appellee, The Bank of New York Mellon Trust Company, N.A. (“New
York Mellon”), by the Geauga County Court of Common Pleas. At issue is whether New
York Mellon’s lack of standing when it filed this action could be cured by the assignment
of the mortgage prior to the entry of final judgment. For the reasons that follow, the trial
court’s judgment is reversed, and this matter is remanded for the trial court to dismiss
the complaint without prejudice.
{¶2} On June 8, 2009, New York Mellon filed a complaint in foreclosure in the
Geauga County Court of Common Pleas against appellant.
{¶3} New York Mellon alleged it was “the holder of a note, a copy of which is
unavailable at this time.” New York Mellon further alleged that the note and the
mortgage securing the note were in default. The mortgage attached to the complaint
identifies “Wilmington Finance” as the lender. That mortgage was recorded on January
21, 2004.
{¶4} On September 11, 2009, New York Mellon filed an affidavit in which it
stated that the principal balance owed by appellant was $178,505.91; “[t]he Creditor
does hold the Debtor[’]s note by assignment;” and “[a]n assignment of mortgage was
recorded with [the] Geauga County Recorder on June 22, 2009.” As noted above, New
York Mellon filed its complaint two weeks earlier on June 8, 2009.
{¶5} Also, on September 11, 2009, New York Mellon filed a motion for default
judgment against appellant.
2 {¶6} On December 9, 2009, appellant filed a motion for leave to plead, which
the trial court granted until January 4, 2010.
{¶7} On January 5, 2010, appellant filed a motion for extension of time to
respond to the complaint, which the trial court granted until February 8, 2010.
{¶8} On February 8, 2010, appellant filed another motion for extension of time
to respond to the complaint, which the trial court denied.
{¶9} On February 25, 2010, the trial court entered a default judgment in
foreclosure. The court found appellant was “in default of * * * Answer;” “that the
allegations contained in the Complaint are true;” and “that the conditions of [the]
Mortgage have been broken and plaintiff is entitled to have the equity of redemption of
the defendant-titleholders foreclosed.”
{¶10} Later that same date, appellant, appearing pro se, filed her answer.
{¶11} On March 2, 2010, appellant filed a “motion to vacate order for sale and
withdraw property from sale” in which she requested mediation “to prevent foreclosure
sale.”
{¶12} On March 19, 2010, the trial court ordered the case stayed and the parties
to attend mediation.
{¶13} On July 9, 2010, appellant filed a motion to dismiss on the grounds that
New York Mellon did not have standing to file the action. She also asked that the
mediation scheduled for that day (July 9) be cancelled.
{¶14} On July 15, 2010, the trial court denied the motion to dismiss.
3 {¶15} On September 2, 2010, appellant filed a motion for summary judgment.
She argued she was entitled to judgment because New York Mellon “has no legal title to
the mortgage and failed to prove ownership of the mortgage.”
{¶16} On September 13, 2010, the trial court entered an order vacating the
mediation stay, noting that such efforts were unsuccessful.
{¶17} On October 28, 2010, the trial court denied appellant’s motion for
summary judgment.
{¶18} On November 22, 2010, appellant filed another motion to dismiss based
on New York Mellon's alleged lack of standing.
{¶19} On December 7, 2010, the trial court denied appellant’s November 22,
2010 motion to dismiss.
{¶20} On September 26, 2011, appellant, now represented by counsel, filed a
motion for relief from judgment, seeking to have the default judgment in foreclosure
vacated. Again, appellant argued that New York Mellon lacked standing to invoke the
trial court’s jurisdiction. New York Mellon did not attach or reference any evidence
showing it had standing when it filed this action. Instead, New York Mellon argued that
standing is not necessary to invoke the trial court’s subject-matter jurisdiction and that
appellant waived any challenge to standing by not raising it within the time limits
specified in Civ.R. 60(B).
{¶21} On November 29, 2011, the trial court entered judgment denying
appellant’s motion for relief from judgment. The court found that the motion was filed
over 18 months after the default judgment was entered and that appellant “has offered
no reason why the motion was filed so long after the entry of judgment.” The court
4 continued: “Even had Ms. Shaffer filed her Motion for Relief from Judgment within a
reasonable time, she has not demonstrated entitlement to such relief. Her motion offers
no explanation as to why she failed to file an answer or responsive pleading within the
time provided by the Rules of Civil Procedure and the extensions granted by the Court.”
{¶22} Appellant appealed the trial court’s default judgment to this court.
Appellant argued that New York Mellon lacked standing and failed to vest the trial court
with subject-matter jurisdiction to enter its default judgment. Further, appellant argued
that the trial court erred in denying her motion for relief from judgment. In Bank of New
York Mellon Trust Co., N.A. v. Shaffer, 11th Dist. Geauga No. 2011-G-3051, 2012-Ohio-
3638, this court affirmed the trial court’s judgment, holding that there was no defect in
New York Mellon’s standing and that appellant failed to show entitlement to relief from
judgment under Civ.R. 60(B).
{¶23} Appellant appealed this court’s decision to the Supreme Court of Ohio. In
Bank of New York Mellon Trust Co., N.A. v. Shaffer, 134 Ohio St.3d 1435, 2013-Ohio-
161, the Supreme Court of Ohio accepted jurisdiction of this case and remanded the
matter to this court for application of the Supreme Court’s recent decision in Fed. Home
Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017.
{¶24} In Schwartzwald, the Supreme Court held that standing is required to
present a justiciable controversy and is a jurisdictional requirement. Id. at ¶21-22. The
Court held that, because standing is required to invoke the trial court’s jurisdiction,
standing is determined as of the filing of the complaint. Id. at ¶24. Further, the Court
held that a mortgage holder cannot rely on events occurring after the complaint is filed
to establish standing. Id. at ¶26. Thus, the plaintiff cannot cure its lack of standing by
5 obtaining an interest in the subject of the litigation after the action is filed. Id. at ¶36.
Further, because standing is jurisdictional, it can never be waived and may be
challenged at any time. See Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶11.
Finally, the Court in Schwartzwald held that when the evidence demonstrates the
mortgage lender lacked standing when the foreclosure action was filed, the action must
be dismissed without prejudice. Id. at ¶40. This court followed the Supreme Court’s
holding in Schwartzwald in Fed. Home Loan Mortg. Corp. v. Rufo, 11th Dist. Ashtabula
No. 2012-A-0011, 2012-Ohio-5930.
{¶25} This court in Rufo held that, pursuant to Schwartzwald, courts of common
pleas have subject-matter jurisdiction over justiciable matters and that standing to sue is
required to make a justiciable case. Rufo at ¶28. Thus, without standing, a case is not
justiciable and the court lacks subject-matter jurisdiction. Id. When the trial court lacks
subject-matter jurisdiction, its final judgment is void. Id. at ¶15.
{¶26} Applying the foregoing jurisprudence to this case, while New York Mellon
filed its complaint on June 8, 2009, the record does not demonstrate that as of that date
it held the note or mortgage. The mortgage attached to the complaint shows that
Wilmington Finance, not New York Mellon, was the holder of the mortgage. Further, the
affidavit filed by New York Mellon demonstrates that the assignment of the mortgage
was recorded on June 22, 2009, two weeks after the complaint was filed. Thus, there is
no evidence that New York Mellon held the mortgage on the date the complaint was
filed.
{¶27} Further, while the complaint alleges that New York Mellon is “the holder of
a note,” New York Mellon did not attach a copy of the note to the complaint, as required
6 by Civ.R. 10. Instead, it alleged a copy of the note was “unavailable at this time” without
offering any reason for its unavailability. Thereafter, New York Mellon never filed a copy
of the note. New York Mellon’s allegation in the complaint that it holds a note is
conclusory without any detail concerning when New York Mellon obtained the note.
Likewise, while New York Mellon stated in its affidavit that it holds the note by
assignment, it did not state when or by whom the note was assigned to it. Thus, there
is no evidence in the record that New York Mellon held the note on the date it filed the
complaint.
{¶28} Because New York Mellon failed to establish it held either the note or
mortgage as of the date it filed the complaint, it lacked standing. As a result, this case
is not justiciable; the trial court lacked subject-matter jurisdiction to enter its judgment of
foreclosure; its judgment was void; and the court’s lack of subject-matter jurisdiction
was subject to challenge at any time.
{¶29} Further, the fact that Shaffer was in default of an answer does not mean
she admitted New York Mellon held the note on the date it filed the complaint, thus
conferring subject-matter jurisdiction on the court. As noted above, the allegation in the
complaint that New York Mellon holds a note is merely conclusory, and does not include
any detail as to when or how it obtained the note. In any event, it is well settled that
“[p]arties may not, by stipulation or agreement, confer subject-matter jurisdiction on a
court, where subject-matter jurisdiction is otherwise lacking.” Fox v. Eaton Corp., 48
Ohio St.2d 236, 238 (1976), overruled on other grounds by Manning v. Ohio State
Library Bd., 62 Ohio St.3d 24, 29 (1991). Further, this court has held that the lack of
subject-matter jurisdiction can be raised at any stage of the proceedings and can be
7 raised for the first time on appeal. Smith v. Dietelbach, 11th Dist. Trumbull No. 2011-T-
0007, 2011-Ohio-4308, ¶14.
{¶30} While this court in Self Help Ventures Fund v. Jones, 11th Dist. Ashtabula
No. 2012-A-0014, 2013-Ohio-868, held that the assignment of a mortgage is sufficient
to transfer a contemporaneous note, id. at ¶39, this court in Jones held that for standing
to exist, the mortgage or note must have been assigned to the mortgagee-plaintiff prior
to the filing of the complaint. Id. at ¶26. Because the only evidence offered by New
York Mellon in its affidavit regarding the mortgage assignment was that it was recorded
two weeks after the complaint was filed, the mortgage assignment was insufficient to
confer standing on New York Mellon or to vest the trial court with subject-matter
jurisdiction.
{¶31} Further, 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.
A court’s authority to vacate a void judgment is not derived from the Rules of Civil
Procedure, but rather is an inherent power possessed by courts. Hoffman v. New Life
Fitness Centers, Inc. 116 Ohio App.3d 737, 739 (3d Dist.1996), appeal not allowed by
Supreme Court of Ohio at 78 Ohio St.3d 1464 (1997). Further, a judgment rendered by
a court lacking subject matter jurisdiction is void ab initio, and may be vacated by virtue
of the court’s inherent power independent of the grounds for vacation of judgments set
forth in Civ.R. 60(B). Falk v. Wachs, 116 Ohio App.3d 716, 721 (9th Dist.1996). Thus,
a motion to vacate a void judgment need not comply with the requirements of Civ.R.
60(B). Id.
8 {¶32} We note that, prior to appellant’s motion for relief from judgment, she
repeatedly brought to the trial court’s attention New York Mellon’s lack of standing. She
asserted the issue in her answer, filed February 25, 2010; in her motion to dismiss, filed
July 9, 2010; in her second motion to dismiss, filed November 22, 2010; and in her
motion for summary judgment, filed September 2, 2010. While Shaffer’s answer was
out of rule by 13 days, thereafter, she diligently attempted to bring the issue of New
York Mellon’s lack of standing to the trial court’s attention.
{¶33} Whether a trial court has subject-matter jurisdiction is a question of law
that we review de novo. Dietelbach, supra. Since the trial court lacked subject-matter
jurisdiction in entering default judgment, the court erred in denying appellant’s motion to
vacate the judgment. Further, since appellant was not required to comply with Civ.R. 60
in her efforts to vacate the court’s void judgment, the court erred in finding that, because
she did not comply with the time requirement of Civ.R. 60(B), she was not entitled to
relief from judgment.
{¶34} For the reasons stated in this opinion, it is the judgment and order of this
court that the judgment of the Geauga County Court of Common Pleas is reversed, and
this matter is remanded for the trial court to dismiss this action without prejudice.
COLLEEN MARY O’TOOLE, J., concurs,
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
______________________
9 {¶35} The essential facts of this appeal are as follows: On June 8, 2009, New
York Mellon filed a foreclosure action against Shaffer, alleging that it was “the holder of
a note,” by assignment, “a copy of which is unavailable at this time.”
{¶36} Despite being granted leave to do so, Shaffer failed to file a timely answer
to the complaint.
{¶37} On February 25, 2010, the trial court issued a default Judgment and
Decree in Foreclosure and Reformation of Mortgage. Shaffer did not appeal this
Judgment.
{¶38} On September 26, 2011, Shaffer filed a Motion for Relief from Judgment,
seeking to have the February 25, 2010 Judgment and Decree in Foreclosure vacated.
The basis for the Motion for Relief from Judgment was New York Mellon’s alleged lack
of “standing to invoke the jurisdiction of this Court.”
{¶39} The trial court’s denial of Shaffer’s Motion for Relief should be affirmed on
the grounds that New York Mellon properly pled its standing to invoke the court’s
jurisdiction, the entry of default judgment was a final order, and a motion for relief from
judgment cannot be used as a substitute for an appeal. Nothing in the Ohio Supreme
Court’s decision of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13,
2012-Ohio-5017, 979 N.E.2d 1214, alters the consequences that the application of
these legal principles have for this case. Accordingly, I dissent.
{¶40} The Complaint filed on June 8, 2009, identified New York Mellon as
successor in interest to JPMorgan Chase Bank, National Association, fka JPMorgan
Chase Bank, as Trustee-SURF-BC2 c/o Litton Loan Servicing, L.P., and “the holder of a
note,” by assignment. Although a copy of the note was unavailable, New York Mellon
10 attached the accompanying mortgage, which attested the existence of a promissory
note executed by Shaffer on January 15, 2004, for the amount of $192,100.
{¶41} There is no defect in New York Mellon’s standing on the face of the
Complaint. This court has recognized that “Ohio Appellate Districts have repeatedly
held that a note can be transferred by assignment.” Self Help Ventures Fund v. Jones,
11th Dist. No. 2012-A-0014, 2013-Ohio-868, ¶ 39 (cases cited). Moreover, the
assignment of the note vests the assignee with standing to enforce the mortgage. Cent.
Mtge. Co. v. Webster, 2012-Ohio-4478, 978 N.E.2d 963, ¶ 27 (5th Dist.) (“[t]he current
holder of the note and mortgage is the real party in interest in foreclosure actions”); U.S.
Bank Natl. Assn. v. Morales, 11th Dist. No. 2009-P-0012, 2009-Ohio-5635, ¶ 32 (“[t]he
proper assignment of the subject note made U.S. Bank its current holder, with the right
to enforce all rights of the original mortgagee - including the right to foreclose”).
{¶42} By asserting that it was the holder of the note by assignment, New York
Mellon effectively invoked the trial court’s jurisdiction. Bank of Am. N.A. v. Edmon, 6th
Dist. No. E-11-054, 2012-Ohio-3406, ¶ 9 (by “pleading * * * that it was the holder of the
note, U.S. Bank satisfied the pleading requirements of Civ.R. 8(A)”).
{¶43} In the absence of any denial to the allegation of standing, New York
Mellon’s right to enforce the note as a holder thereof must be deemed “admitted.”
Civ.R. 8(D) (“[a]verments in a pleading to which a responsive pleading is required, other
than those as to the amount of damage, are admitted when not denied in the responsive
pleading”); Girard v. Leatherworks Partnership, 11th Dist. No. 2004-T-0010, 2005-Ohio-
4779, ¶ 38 (“[w]hen a defendant fails to answer, default judgment is appropriate
11 because liability has been admitted or ‘confessed’ by the omission of statements in a
pleading refuting the plaintiff’s claims”).
{¶44} The majority concludes, on the contrary, that “New York Mellon’s
allegation in the complaint that it holds a note is conclusory without any detail
concerning when New York Mellon obtained the note.” Supra at ¶ 27. Significantly, the
majority cites no authority for the novel proposition that a party must establish the chain
of title in the Complaint to invoke the trial court’s jurisdiction. Rather, the opposite is
true: “a plaintiff is not required to prove his or her case at the pleading stage.” York v.
Ohio State Highway Patrol, 60 Ohio St.3d 143, 144-145, 573 N.E.2d 1063 (1991);
Schmidt v. Brower, 11th Dist. No. 2010-A-0014, 2010-Ohio-4431, ¶ 20 (“[a] default
judgment is ‘based upon admission and * * * therefore obviates the need for proof”)
(citation omitted). Unless challenged, New York Mellon was entitled to rely on the
allegations set forth in its Complaint, which must be taken as admitted due to Shaffer’s
failure to plead.
{¶45} The majority also contends that New York Mellon’s lack of standing at the
time the Complaint was filed is demonstrated by the Creditor’s Affidavit, which stated
that “[t]he Creditor does hold the Debtor[’]s note by assignment,” and “[a]n assignment
of mortgage was recorded with the Geauga County Recorder on June 22, 2009.” The
fact that the assignment was not recorded until fourteen days after the Complaint was
filed is not indicative of when the assignment was made. As this court is aware, the
“recording of the assignment was not a condition precedent to the right of foreclosure.”
Morales, 2009-Ohio-5635, at ¶ 32; U.S. Bank Natl. Assn. v. Mitchell, 6th Dist. No. 5-10-
043, 2012-Ohio-3732, ¶ 20 (“an unrecorded assignment on the date of the complaint is
12 valid, except as to subsequent bona fide purchasers for value”); Wead v. Kutz, 161 Ohio
App.3d 580, 2005-Ohio-2921, 831 N.E.2d 482, ¶ 16 (12th Dist.) (“the issue of when the
mortgage assignment was recorded becomes relevant only to the extent of establishing
creditor priority,” whereas “[t]he validity of the mortgage itself remains unaffected by the
timing of the assignment’s recordation.”).
{¶46} The majority dismisses the implications of Shaffer’s failure to plead by
reiterating that New York Mellon’s claim to be a holder of the note is “merely
conclusory,” and that New York Mellon did “not include any detail as to when or how it
obtained the note.” Supra at ¶ 29. Again, the majority fails to support this proposition,
which is wholly contrary to the pleading requirements of Civil Rule 8, by citation to any
authority. U.S. Bank, N.A. v. Turner, 6th Dist. No. E-11-059, 2012-Ohio-3413, ¶ 12 (“by
pleading inter alia that it was the holder of a note secured by a mortgage, U.S. Bank
satisfied the pleading requirements of Civ.R. 8(A) for its foreclosure claim”).
{¶47} It is important to recognize that it cannot be said, based on the record
before this court, whether the assignment of the note to New York Mellon occurred
before or after the filing of the Complaint. Either conclusion is perfectly consistent with
the evidence. The determinative issue, however, is that New York Mellon claimed to be
a holder at the time it filed the Complaint and the claim is deemed admitted by Shaffer’s
failure to plead. Compare Deutsche Bank Natl. Trust Co. v. Rudolph, 8th Dist. No.
98383, 2012-Ohio-6141, ¶ 23 (“[t]o reach a contrary decision [regarding standing], the
trial court must not have construed Deutsche’s factual allegations as true and must
have considered matters outside of the record - both of which are expressly prohibited”).
13 {¶48} The majority also fails to consider the fact that the February 25, 2010
Judgment and Decree in Foreclosure was a final order that was not appealed. Thus, it
may not be challenged, as Shaffer has attempted, by a Civil Rule 60(B) motion.
{¶49} The Ohio Supreme Court has recently emphasized the significance of a
final judgment, even by default, in a foreclosure action:
{¶50} Default judgment is the functional equivalent of a judgment
following a trial. Civ.R. 55(B). * * * Ohio courts have previously
held that an order of default judgment means that a trial has
commenced for purposes of Civ.R. 41(A) and the matter has
proceeded to verdict and final judgment. * * * Additionally, in GTE
Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146,
149-150, 351 N.E.2d 113 (1976), this court stated, “Regardless of
whatever else may be said of a default judgment, it is a judgment.
It is as good as any other judgment. It is a final determination of
the rights of the parties.” (Emphasis added.) * * * That this default
judgment occurred within a foreclosure proceeding does not make
the judgment any less final.
Countrywide Home Loans Servicing v. Nichpor, __ Ohio St.3d __, 2013-Ohio-2083, __
N.E.2d __, ¶ 5-6.
{¶51} It is equally well-established that “[a] party may not use a Civ.R. 60(B)
motion as a substitute for a timely appeal.” Doe v. Trumbull Cty. Children Servs. Bd.,
28 Ohio St.3d 128, 502 N.E.2d 605 (1986), paragraph two of the syllabus. This means
that “a proper Civ.R. 60(B) motion cannot be predicated upon an argument or point
14 which could have been asserted in a direct appeal.” Karnofel v. Girard Police Dept.,
11th Dist No. 2009-T-0045, 2009-Ohio-4446, ¶ 10; Key v. Mitchell, 81 Ohio St.3d 89,
90-91, 689 N.E.2d 548 (1998).
{¶52} Contrary to this authority, the majority contends that New York Mellon’s
alleged lack of standing deprived the trial court of its subject-matter jurisdiction, which
“can be raised at any state of the proceedings and can be raised for the first time on
appeal.” Supra at ¶ 29. The majority misinterprets the Schwartzwald, 134 Ohio St.3d
13, 2012-Ohio-5017, 979 N.E.2d 1214, decision.1
{¶53} Schwartzwald did state that “standing to sue is required to invoke the
jurisdiction of the common pleas court,” id. at ¶ 24, but it did not state that the common
pleas court lacked subject-matter jurisdiction where a party lacked standing to sue. In
fact, there is “a distinction between a court that lacks subject-matter jurisdiction over a
case and a court that improperly exercises that subject-matter jurisdiction once
conferred upon it.” Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d
992, ¶ 10.
{¶54} “Jurisdiction” means “the courts’ statutory or constitutional power to
adjudicate the case.” (Emphasis omitted.) Steel Co. v. Citizens for
a Better Environment (1998), 523 U.S. 83, 89, 118 S.Ct. 1003, 140
L.Ed.2d 210; Morrison v. Steiner (1972), 32 Ohio St.2d 86, 87, 61
O.O.2d 335, 290 N.E.2d 841, paragraph one of the syllabus. The
term encompasses jurisdiction over the subject matter and over the
person. State v. Parker, 95 Ohio St.3d 524, 2002-Ohio-2833, 769
1. The Schwartzwald decision does not contain any substantive discussion of, and only a passing reference to, a court’s subject-matter jurisdiction.
15 N.E.2d 846, ¶22 (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.
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, 701 N.E.2d 1002. * * *
{¶55} The term “jurisdiction” is also used when referring to a court’s
exercise of its jurisdiction over a particular case. See State v.
Parker, 95 Ohio St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846, ¶20
(Cook, J., dissenting); State v. Swiger (1998), 125 Ohio App.3d
456, 462, 708 N.E.2d 1033. “‘The third category of jurisdiction [i.e.,
jurisdiction 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. It is only when the trial court
lacks subject matter jurisdiction that its judgment is void; lack of
jurisdiction over the particular case merely renders the judgment
voidable.’” Parker at ¶22 (Cook, J., dissenting), quoting Swiger,
125 Ohio App.3d at 462, 708 N.E.2d 1033. “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
16 (1992), 62 Ohio St.3d 382, 384, 582 N.E.2d 992, quoting Sheldon’s
Lessee v. Newton (1854), 3 Ohio St. 494, 499.
Id. at ¶ 11-12.
{¶56} In the present case, as in Schwartzwald, the trial court had subject matter
jurisdiction of the action and the parties. Assuming, arguendo, that New York Mellon
improperly invoked that jurisdiction by lacking the requisite standing to sue, i.e., a
sufficient stake in an otherwise justiciable controversy, the court’s judgment is merely
voidable, not void ab initio. State v. Filiaggi, 86 Ohio St.3d 230, 240, 714 N.E.2d 867
(1999) (“[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[;] [a]ny subsequent error in the proceedings is only error in the ‘exercise of
jurisdiction,’ as distinguished from the want of jurisdiction in the first instance”) (citation
omitted).
{¶57} Accordingly, the majority errs in its conclusion that Shaffer did not need to
comply with the requirements of Civil Rule 60(B) on the grounds that the underlying
judgment is void. PNC Bank, Natl. Assn. v. Botts, 10th Dist. No. 12AP-256, 2012-Ohio-
5383, ¶ 22 (“[l]ack of standing challenges the capacity of a party to bring an action, not
the subject matter jurisdiction of the court”) (citation omitted). On this issue,
Schwartzwald stated that “the issue of standing, inasmuch as it is jurisdictional in
nature, may be raised at any time during the pendency of the proceedings.” 132 Ohio
St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, at ¶ 22 (citation omitted). The key words
are “during the pendency of the proceedings.” In Nichpor, the Ohio Supreme Court
made it clear that, after a judgment entry grants a decree of foreclosure and order of
17 sale, the matter is no longer pending. __ Ohio St.3d __, 2013-Ohio-2083, __ N.E.2d __,
at syllabus.
{¶58} This court’s other post-Schwartzwald decisions similarly confuse a party’s
lack of standing to sue with the trial court’s lack of subject-matter jurisdiction, and
conclude that the issue of standing may be raised at any time. See Self Help, 2013-
Ohio-868; Fed. Home Mtge. Corp. v. Rufo, 11th Dist. No. 2012-A-0011, 2012-Ohio-
5930; and BAC Home Loans Servicing, L.P. v. Meister, 11th Dist. No. 2012-L-042,
2013-Ohio-873. Accordingly, their precedential value is compromised.
{¶59} In sum, New York Mellon properly pled its standing to invoke the trial
court’s jurisdiction. Its standing must be deemed admitted by virtue of Shaffer’s failure
to plead. The trial court’s Judgment and Decree in Foreclosure and Reformation of
Mortgage was a final order that cannot be challenged on issues that could have been
raised on direct appeal. For the foregoing reasons, I respectfully dissent.