2011 Ohio 2954
Ohio Ct. App.2011Background
- Appellee Aurora Loan Services filed a foreclosure action on Nov. 17, 2008, alleging it held the note and mortgage.
- Original lender was Lehman Brothers Bank, FSB; MERS acted as nominee and later, the mortgage was assigned to appellee.
- Defendants Suzanna and Charles Phillips defaulted; they did not answer timely and the trial court entered a default judgment on May 28, 2010.
- On Sept. 16, 2010, the Phillipses moved to stay the sale, vacate the judgment as void ab initio, and dismiss for lack of standing; the court denied these motions and the sheriff’s sale proceeded.
- The sale was confirmed by a judgment entry on Oct. 27, 2010, and a subsequent motion to vacate the confirmation was filed on Nov. 4, 2010.
- The Phillipses appealed from the sale-confirmation judgment; the appellate court affirmed, noting the distinction between subject matter jurisdiction and standing and reviewing for abuse of discretion in sale confirmation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing vs. subject matter jurisdiction | Phillipses claim Aurora had no standing to foreclose. | Phillipses contend lack of standing voids the judgment ab initio. | Standing issues do not defeat subject matter jurisdiction; not void ab initio. |
| Effect of not naming the real party in interest | Non-compliance with Civ. R. 17GA impacts jurisdiction. | Failure to name real party in interest is waived if not timely asserted. | Non-naming is a defense to the claim, not a jurisdictional defect; waiver applies. |
| Abuse of discretion in confirming sheriff’s sale | Sale should not be confirmed due to standing/notice issues. | Sale complied with statutory procedures; confirmation is proper court discretion. | No abuse of discretion shown; sale confirmed. |
| Mootness of appeal after sale | Appeal challenges foreclosure process and decree. | Once the property is sold, related appeals are moot. | Appeal from sale confirmation is controlling; issues about foreclosure process are moot post-sale. |
Key Cases Cited
- Pratts v. Hurley, 102 Ohio St.3d 81 (2004) (distinguishes subject matter jurisdiction from standing)
- Painesville v. Lake County Budget Comm’n, 56 Ohio St.2d 282 (1978) (jurisdictional defect cannot be waived)
- Patton v. Diemer, 35 O.St.3d 68 (1988) (void ab initio judgments and inherent power to vacate)
- In re: Byard, 74 Ohio St.3d 294 (1996) (jurisdictional concepts and related waivers)
- Suster, 84 Ohio St.3d 70 (1998) (real party in interest and standing considerations)
- State ex rel. Smith v. Smith, 75 Ohio St.3d 418 (1996) (standing vs. jurisdiction distinctions)
- LTV Steel Co. v. Gwin, 64 Ohio St.3d 245 (1992) (standing issues and real party in interest considerations)
- Sky Bank v. Mamone, 182 Ohio App.3d 323 (2009) (finality of foreclosure orders; appeal timing)
- Riley v. Cleveland Television Network, 2004-Ohio-3299 (2004) (appeals from foreclosure-related orders; finality considerations)
- Federal Home Mortgage Corp. v. McDaniel, 9th Dist. No. 17142 (1995) (appeals limitations on foreclosure review)