EverHome Mtge. Co. v. BehrensEverHome Mtge. Co. v. Behrens
William C. Behrens, pro se, 645 Bank Street, Painesville, OH 44077 (Defendant-Appellant).
O P I N I O N
MARY JANE TRAPP, J.
{¶1} William C. Behrens, pro se, appeals from a judgment of the Lake County Court of Common Pleas confirming the sheriff‘s sale of his home in this foreclosure action. He claims the trial court lacked subject matter jurisdiction because the plaintiff, EverHome Mortgage Company, is not the real party in interest. Mr. Behrens failed to timely assert this claim below; thus, the doctrine of waiver requires us to affirm the judgment of the trial court.
Substantive Facts and Procedural History
{¶3} On December 1, 2008, EverHome Mortgage Company (“EverHome“) initiated a foreclosure action against Mr. Behrens. The complaint alleged EverHome is the holder of a note secured by a mortgage, which was assigned to EverHome, and that Mr. Mr. Behrens was in default of payment.1 The fact of default is undisputed.
{¶4} Mr. Behrens did not answer the complaint, and EverHome moved for default judgment on January 21, 2009. On the same day, EverHome also filed a “Final Judicial Report,” to which was attached a document entitled “Assignment of Mortgage” showing an assignment of the mortgage from Mortgage Electronic Registration Systems, Inc., as nominee for First Horizon, to EverHome, on November 28, 2008.
{¶5} The trial court entered a “Judgment and Decree in Foreclosure” in EverHome‘s favor. A sheriff‘s sale was ordered, but then withdrawn to allow for a loss mitigation workout. The loss mitigation was not successful, and a sale was again ordered.
{¶6} On November 30, 2010, Mr. Behrens filed a motion to vacate the default judgment pursuant to
{¶7} EverHome was the successful bidder at the sale and filed a motion to confirm the sale. Mr. Behrens then filed a (second) motion to vacate the default judgment. He claimed the complaint did not contain proper documentation to show the note was negotiated or the mortgage assigned, therefore, EverHome was not the real party in interest, and the default judgment entered by the trial court was void. Without explicitly addressing the motion, the trial court entered a “Judgment Entry Confirming Sale, Ordering Deed and Distributing Sale Proceeds,” thereby denying the motion to vacate by implication.
{¶8} Mr. Behrens now appeals, assigning the following error for our review:
{¶9} “The trial court committed prejudicial error in denying defendant-appellant‘s motion to vacate void judgment and confirming sale, ordering deed, and distributing sale proceeds. The documents and pleadings before the court demonstrate no justiciable controversy between Plaintiff EverHome Mortgage Company and Defendant William C. Behrens. The court lacked subject matter jurisdiction to hear the case, and thus the judgment rendered is VOID ab initio, and must be vacated.”
{¶10} Mr. Behrens claims that the complaint filed by EverHome did not establish, through proper documentation, that EverHome was the holder of the note and assignee of the mortgage, and therefore, EverHome lacked standing to institute the foreclosure
Common Law Motion to Vacate and Our Standard of Review
{¶11} As an initial matter, we note that Mr. Behrens’ second motion to vacate was a common law motion to vacate, the denial of which is the subject of this appeal. As we explained in Aurora Loan Servs., LLC. v. Cart, 11th Dist. No. 2009-A-0026, 2010-Ohio-1157, a common law motion to vacate is the proper mechanism for a claim that the underlying judgment of the trial court is void ab initio, because the trial court has the authority to vacate such a judgment based on its inherent power. Id. at ¶14, citing Westmoreland v. Valley Homes Mut. Housing Corp., 42 Ohio St.2d 291, 294 (1975). A proceeding to vacate a judgment on the ground that it is void for lack of jurisdiction is not subject to the provisions of
Subject Matter Jurisdiction and Standing
{¶12} “Subject matter jurisdiction is a court‘s power to hear and decide a case on the merits.” Morrison v. Steiner, 32 Ohio St.2d 86 (1972), paragraph one of the syllabus. “[B]ecause 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 81, 2004-Ohio-1980, ¶11. Standing, on the
{¶13} Here, Mr. Behrens claims the default judgment entered in this case was void because EverHome was not the real party in interest, and thus, lacked standing to initiate the foreclosure action and invoke the trial court‘s jurisdiction.
{¶14} We are aware that there is a conflict of authorities among the appellate districts regarding whether a plaintiff in a mortgage foreclosure action must show that it owned a note and the mortgage when a complaint was filed in order to have standing. In fact, this is the question that had been certified by the Supreme Court of Ohio in U.B. Bank, N.A. v. Duvall, 128 Ohio St.3d 1443, 2011-Ohio-1618, on April 26, 2011.2
{¶16} We recognize that there is also a split of authorities as to whether the issue of standing or the real-party-in-interest defense in a foreclosure action may be waived if not timely asserted.3 This court has already weighed in on this issue and held that the standing issue is not jurisdictional in nature, and therefore, it is waived if not timely challenged. See Yeager, supra, and Cart, supra.4
{¶17} Because Mr. Behrens failed to timely assert his claim that EverHome was not the real party in interest and therefore lacked the standing to bring this foreclosure action, he waived the issue. Yeager, supra; Cart, supra. Consequently, we do not reach the merits of the underlying issue regarding whether EverHome established standing in its complaint. Mr. Behrens’ failure to timely challenge EverHome‘s standing is dispositive of this appeal.
{¶18} The judgment of the Lake County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.