Wells Fargo Bank, N.A. v. WashingtonWells Fargo Bank, N.A. v. Washington
Dann, Doberdruk & Wellen LLC, Marc E. Dann, Grace Doberdruk, 4600 Prospect Avenue, Cleveland, Ohio 44103, for defendants-appellants, Randy P. & Artiffany A. Washington
Household Realty Corp., 1300 East Ninth Street, Suite 1010, Cleveland, Ohio 44114, defendant, pro se
Kenneth R. Reed, 241 Elm Street, Ludlow, KY 41016, for defendant, Foxborough Home Owners Assn.
Kelly Williams, 620 Main Street, Suite 500, Cincinnati, Ohio 45202, for defendant, Credit Acceptance Corp.
O P I N I O N
RINGLAND, J.
{¶ 1} Defendants-appellants, Randy Washington and Artiffany Washington, appeal
{¶ 2} On March 10, 2010, plaintiff-appellee, Wells Fargo Bank, N.A., filed a complaint in foreclosure against appellants. On April 20, 2010, appellee filed a notice of voluntary dismissal pursuant to
{¶ 3} Appellants now appeal the foreclosure and confirmation of sale of their real estate, raising a single assignment of error for our review.
{¶ 4} Assignment of Error No. 1:
{¶ 5} THE TRIAL COURT ABUSED ITS DISCRETION BY CONFIRMING THE SALE WHEN APPELLANT ARTIFFANY WASHINGTON WAS NEVER PROPERLY SERVED.
{¶ 6} Within this assignment of error, appellants raise two issues. First, appellants argue that “[a]ppellant Artiffany Washington was never served with the complaint which rendered the judgment of foreclosure void ab initio for lack of personal jurisdiction * * *.” Second, they argue that the trial court lacked jurisdiction to render a judgment following appellees filing of a notice of voluntary dismissal pursuant to
{¶ 7} The Ohio Supreme Court has held that, “[t]he plain import of
{¶ 8} Appellants contend that any judgment journalized after the date of the filing of the voluntary dismissal by appellee is a nullity. Kosier v. Lucas, 6th Dist. No. L-12-1019, 2012-Ohio-6243, ¶ 4. Appellants therefore contend that the trial court erred in vacating the voluntary dismissal as its jurisdiction over the case was extinguished. In turn, appellee argues that: (1) appellants’ argument is waived as they failed to raise it below; (2) the proper remedy was not to appeal, but rather to file for an equitable writ; (3) the time for seeking an equitable writ has long since passed; and (4) even if an appeal were available, it would have been from the default judgment, not from the confirmation of sale.
{¶ 9} As to appellee‘s first argument, we note that “[a] jurisdictional defect cannot be waived. Painesville v. Lake Cty. Budget Comm., 56 Ohio St.2d 282 (1978). This means that the lack of jurisdiction can be raised at any time, even for the first time on appeal. See In re Byard, 74 Ohio St.3d 294, 296 (1996). This is because jurisdiction is a condition precedent to the court‘s ability to hear the case. If a court acts without jurisdiction, then any proclamation by that court is void. Patton v. Diemer, 35 Ohio St.3d 68 (1988).” State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 75 (1998).
{¶ 10} With respect to appellee‘s second and third assignments, while appellants could have attacked the decision granting the motion to vacate dismissal through writs of mandamus and prohibition, their failure to do so does not waive their right to appeal on jurisdictional grounds. Accordingly, it is also irrelevant whether the time to seek an equitable writ has passed. Finally, appellants’ appeal from the confirmation of sale is neither an attempt to circumvent an untimely appeal of the foreclosure judgment, nor is it an effort to
{¶ 11} We find that the trial court was divested of jurisdiction following appellee‘s voluntarily dismissal of its complaint. Appellants’ first assignment of error is therefore sustained.
{¶ 12} Judgment reversed and vacated for lack of jurisdiction, as are all judgments, orders and decrees issued by the trial court after the April 20, 2010 voluntary dismissal.
HENDRICKSON, P.J., and S. POWELL, J., concur.