2013 Ohio 782
Ohio Ct. App.2013Background
- Foreclosure action filed by EMC Mortgage Corp. against Atkinson in Summit Co. Court of Common Pleas.
- An Agreed Judgment Decree required Atkinson to pay EMC $18,000 by Dec. 15, 2008; failure allowed immediate execution.
- Atkinson attempted payment in Feb. 2009; EMC rejected and executed on the decree.
- Atkinson moved for relief under Civ.R.60(B); trial court modified the due date from Dec. 15, 2008 to Feb. 12, 2009.
- Appellate court previously reversed for lack of inherent equitable power to modify the decree and lack of Civ.R.60(B) relief consideration on remand.
- Upon remand, the trial court denied the Civ.R.60(B) motion; Atkinson appealed, and the Ninth District vacated and remanded for application of Schwartzwald while addressing standing issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue at filing | EMC had standing to foreclose. | Atkinson contends lack of standing defeats foreclosure. | Standing lacking; judgment vacated and remanded for Schwartzwald application. |
| Relief under Civ.R.60(B) to vacate the Agreed Judgment | EMC seeks affirmance of the judgment. | Atkinson argues entitlement to relief under Civ.R.60(B). | Atkinson entitled to relief; judgment vacated and remanded for proper proceedings under Schwartzwald. |
Key Cases Cited
- Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13 (2012-Ohio-5017) (standing required at filing; dismissal without prejudice if lacking)
- Bank of Am. v. Kuchta, 2012-Ohio-5562 (9th Dist. 2012) (standing is jurisdictional and must be established at commencement; lack of standing leads to dismissal)
- Schwartzwald (cited within Kuchta), Schwartzwald, ¶40 (2012-Ohio-5017) (dismissal without prejudice when lack of standing at filing)