JPMorgan Chase Bank Trustee v. MurphyJPMorgan Chase Bank Trustee v. Murphy
Rendered on the 29th day of October, 2010.
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KEVIN L. WILLIAMS, Atty. Reg. No. 0061656, P. O. Box 16508, Columbus, Ohio 43216 Attorney for Plaintiff-Appellee
DENNIS L. MURPHY and ROBIN L. MURPHY, 6493 Shull Road, Huber Heights, Ohio 45424 Defendants-Appellants
GEORGE PATRICOFF, Atty. Reg. No. 0024506, 301 W. Third Street, 5th Floor, Dayton, Ohio 45402 Attorney for Montgomery County Treasurer
JOSEPH T. CHAPMAN, Atty. Reg. No. 0072326, 150 E. Gay Street, 21st Floor, Columbus, Ohio 43215 Attorney for State of Ohio Department of Taxation
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DONOVAN, P.J.
{¶ 2} On October 14, 2008, Murphy filed pro se correspondence with the court, advising that they are working through Save the Dream organization out of Washington DC * * * and locally CRIAA Community Reinvestment Institute Alumni Association * * * to save our home. Murphy further asserted that the original loan is * * * a predatory loan. According to Murphy, the delinquency in payments is due to the illness and disability of Dennis Murphy. Murphy asked the court to stay the foreclosure proceedings to allow them to obtain affordable financing through CRIAA. The October 14th correspondence is delineated as an Answer on the court‘s docket.
{¶ 3} On October 20, 2008, JPMorgan Chase filed a Final Judicial Report which provides in part, the foreclosure action styled [JPMorgan Chase v. Murphy] * * * reflects that all parties necessary for the adjudication of this dispute have been named.
{¶ 4} On November 4, 2008, JPMorgan Chase filed a Motion for Summary
{¶ 5} Also on November 4, 2008, JPMorgan Chase filed a Notice of Filing of Lost Assignment Affidavit. The affiant, Bill Koch, a Document Control Officer with Select Portfolio Servicing, Inc, formerly known as Fairbanks Capital Corp. (Select), attests that the original holder of the mortgage on the property at issue was Alternative, and that Select is now the custodian of the note and mortgage. The affidavit further provides that the note and mortgage were purchased by JPMorgan Chase by its Attorney-in-Fact [Select] * * * but the assignment from [Alternative] to JPMorgan Chase * * * cannot be located for the recording. Koch avers that at all times, JPMorgan Chase has been the holder of the Mortgage/Deed of Trust and Note with full authority to exercise the rights of a lender thereunder.
{¶ 6} JPMorgan Chase also filed the affidavit of Merlobel Custodio, another Document Control Officer for Select, attesting that Select provides mortgage and foreclosure related services to JPMorgan Chase, that Murphy is in default on their payments, and that JPMorgan Chase is entitled to enforce the mortgage. Attached to the affidavit are copies of the Note and Open-End Mortgage.
{¶ 7} On December 5, 2008, Murphy filed correspondence with the court outlining their attempts to secure representation and assistance in obtaining modification of their loan. This correspondence is delineated as a response to the motion for summary judgment on the
{¶ 8} On December 11, 2008, in ruling upon JPMorgan‘s Chase‘s motion for summary judgment, the trial court issued a Judgment Entry and Decree of Foreclosure against Murphy. The court determined that Murphy executed the Note and Mortgage, and that the Note and Mortgage are in default because payments required to be made * * * have not been made[, and that] the conditions of the Mortgage have been broken, the break is absolute, and [JPMorgan Chase] is entitled to have the equity of redemption and dower of the current title holders foreclosed.
{¶ 9} On February 10, 2010, Murphy, represented by counsel, filed a Motion to Reopen and Dismiss Action for Lack of Plaintiff‘s Standing ab Initio; Motion for Declaratory Judgment Declaring Judgments Issued in this Action Void ab Initio; Motion for Leave to Join any Persons Required by
{¶ 10} On February 18, 2010, JPMorgan Chase filed a Memorandum in Opposition,
{¶ 11} On February 18, 2010, the trial court overruled, without analysis, Murphy‘s motions, finding them to be not well-taken. On March 12, 2010, a Confirmation Entry of Sale and Distribution of Proceeds was issued. On March 15, 2010, Murphy filed a pro se Motion to Dismiss Sale to JPMorgan Chase and Declare Mortgage Paid in Full.
{¶ 12} On March 12, 2010, the trial court issued a Confirmation Entry of Sale and Distribution of Proceeds, which provides that the property was sold by the Sheriff on February 19, 2010 to JPMorgan Chase, for $76,000.00, and that JPMorgan Chase assigned its bid to The Bank of New York Mellon Trust Company. The Entry provides in part, * * * that the sale of the Property conformed in all respects to the law.
{¶ 13} We note that Murphy did not attach a copy of the decision appealed from to the Notice of Appeal, nor does the Notice of Appeal indicate the date of the decision from which he appeals. The Notice of Appeal does indicate, however, that the appeal involves, inter alia, summary judgment. The record reveals that the trial court, in its decision on JPMorgan Chase‘s motion for summary judgment, endorsed thereon a direction to the clerk to serve upon all parties notice of the judgment and the date of its entry upon the journal, and to note said service upon its docket. There is, however, no notation of service on the trial court‘s docket as required by
{¶ 14} In addressing Murphy‘s brief, for the sake of completeness, we will review both of the trial court‘s decisions. We initially note that Murphy‘s brief does not delineate specific assignments of error. Attached to the brief are numerous documents that are beyond our consideration, as they not part of the trial court record.
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{¶ 17} Along with its Motion for Summary Judgment, JPMorgan Chase filed
{¶ 18} In their subsequent motion to reopen and dismiss, and for declaratory judgment, Murphy asserted that JPMorgan Chase did not own the note and mortgage and accordingly lacked standing, that the issue of standing may be raised at anytime, and that [w]hen a court lacks jurisdiction over the case because it was filed by a person without standing, the case must be dismissed.
{¶ 19} It is well understood * * * that the lack of subject matter jurisdiction may be raised anytime. Hunt v. Hunt (Oct. 28, 1994), Greene App. No. 93-CA-92. While Murphy asserted that their motion to dismiss was a jurisdictional motion, we have previously held, [b]ecause ‘[t]he issue of lack of standing “challenges the capacity of a party to bring an action, not the subject matter jurisdiction of the court,” * * * the issue of standing or the “real-party-in-interest” defense is waived if not timely asserted.’ Countrywide Home Loans v. Swayne, Greene App. No. 2009 CA 65, 2010-Ohio-3903, ¶ 29. In other words, standing is not an issue of subject matter jurisdiction. Portfolio Recovery Assoc., L.L.C. v. Thacker, Clark App. No. 2008 CA 119, 2009-Ohio-4406, ¶ 14. As noted above, Murphy did not timely challenge the standing of JPMorgan Chase to prosecute the foreclosure action, and Murphy accordingly waived this argument.
{¶ 20} Since the trial court properly granted summary judgment in favor of JPMorgan Chase and overruled Murphy‘s motions to reopen, dismiss and for declaratory judgment, the judgment of the trial court is affirmed.
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BROGAN, J., concurs.
FROELICH, J., concurring:
{¶ 21} I concur. I write only to stress that this court is acutely aware of potential legal issues surrounding foreclosures. This is perhaps illustrated in the majority opinion where, although we must hold pro se Appellants to the same standards as those represented by counsel, we have been very liberal in applying the Appellate Rules and in interpreting the Appellants’ arguments.
{¶ 22} The homeowners contend judgment against them was in error because, they allege, the assignment of the mortgage to JPMorgan (the plaintiff in the foreclosure complaint) was not recorded until sometime after the Complaint was filed. This alleged fact, the homeowners contend, means that JPMorgan did not have standing to bring the foreclosure, and that the trial court thus did not have subject matter jurisdiction to render judgment in favor of JPMorgan; the homeowners conclude that the foreclosure judgment is void since it was granted by a court that did not have subject matter jurisdiction.
{¶ 23} But this is not a situation where a municipal court grants a real estate
{¶ 24} It is a totally different matter to assert, as do the Appellants, that the Common Pleas Court should have been aware that one of the parties to the litigation - over which the court had subject matter jurisdiction - was not a real party in interest and lacked standing to participate in the litigation. If that were the situation, such contention should have been brought to the attention of the trial court and would have been addressed. Appellant did not do this and thereby gave up, or waived, the right to argue the issue in this court.
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Copies mailed to:
Kevin L. Williams
Dennis L. Murphy
Robin L. Murphy
George Patricoff
Joseph T. Chapman
Hon. Barbara P. Gorman