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1N THE SUPREME COURT OF OHIO

^R^ ^ AL

RICHARD F. DAVET Appellant, vs.

Case No. ^, ^ '^ ^ ^ Appeal from the Eighth District Court of Appeals of Ohio, Cuyahoga County Court of Appeals Case No. CA-12097890

FEDERAL NATIONAL MORTGAGE ASSOCIATION, et al. Appellees.

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT RICHARD F. DAVET

Richard Davet, pro se P.O. Box 10092 Cleveland, Ohio 44110 (216) 451-6211 APPELLANT

James S. Wertheim, Esq. Melany A. Fontazza, Esq. MCGLINCHEY & STAFFORD PLLC 25550 Chagrin Boulevard, Suite 406 Beachwood, Ohio 44122-4640 ATTORNEYS FOR APPELLEES

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CLER{( OF CURT OCT 2 2^ c012


CLERK OF COl1RT REME t^OUR`i OE OHIO

TABLE OF CONTENTS EXPLANATION OF WHY THE CASE IS OF PUBLIC OR GREAT GENERAL 1NTEREST AND RAISES A SUBSTANTIAL CONSTITUTIONAL QUESTION SUCH THAT LEAVE TO APPEAL SHOULD BE GRANTED ........................................................................................ 2 STATEMENT OF THE CASE AND FACTS ............................................................................... 4 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ....................................................... 9 Proposition of Law No. I: A non-party and non-assignee to a contract cannot invoke the jurisdiction of an Ohio court by filing a civil action in foreclosure when a present justiciable controversy between them does not exist (i.e., an inchoate controversy dependent upon a future assignment of rights) pursuant to Kincaid v. E^ie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, 13, 17, where the trial court's jurisdiction is not invoked under the Ohio Const. Art. IV, 4(B) and Civil Rule 12(H)(3) requires dismissal for lack of jurisdiction. .......... 9 CONCLUSION ....................................... CERTIFICATE OF SERVICE ................. APPENDIX COVER PAGE ....................... ........................................................... 16 ........................................................ 16 ....................................................... 17

JUDGMENT AND OPINION OF THE COURT OF APPEALS (AUG. 9, 2012) ...................... 18 JOURNAL ENTRY DENYING RECONSIDERATION AND CERTIFICATION OF A CONFLICT (SEP. 12, 2412) ........................................................................................................ 27 JOURNAL ENTRY DENYING EN BANC CONSIDERATION ( SEP. 25, 2012) .................... 28

I. EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL 1NTEREST AND RAISES A SUBSTANTIAL CONSTITUTIONAL QUESTION SUCH THAT LEAVE TO APPEAL SHOULD BE GRANTED The appeal of this case is of public and great general interest and raises a substantial constitutional question. The public should be confident that a void judgment in a foreclosure action is not subject to direct appeal and res judicata and the Court should decide the bounds of "justiciable matter" cited in the Ohio Const. Art. IV, 4(B). When the party foreclosing their mortgage does not have a justiciable controversy with the mortgagor on the date they file a foreclosure action with regard to the mortgage, the court's jurisdiction is not invoked. Specifically, when the party filing the foreclosure action does not own the mortgage and has absolutely no contractual relationship upon filing a civil action, as a party to the contract or an assignee thereof, the trial court does not have jurisdiction to proceed with the case and it must be dismissed.. The facts in this case show that the assignment of the mortgage to the party filing the civil action ( NationsBanc) did not occur until 1999. The underlying foreclosure action was filed on March 1, 1996, in Cuyahoga Court of Common Pleas, Case No. CV-96-304224, captioned NationsBanc 1^fortgage Lorporation v. Tcicha^d rT Davei, et al. The trial courL allowed a foreclosure action to proceed ( by a plaintiff without a justiciable controversy against the defendant) without jurisdiction for over three yea^s. This is a waste of judicial resources, and is an injustice to homeowners in Ohio. The entire process, including the trial proceedings, and subsequent appeal, is a legal nullity because the proceedings were void, and the action should have been dismissed instead of proceeding to foreclosure. Ohio case law states that states a person without contractual rights may not sue on a contract due to a lack of standing where there is no present justiciable controversy between the

plaintiff and defendant at the time the complaint is filed. A mortgage foreclosure is a proceeding on a contract. Only the parties with rights to enforce the contract may file the action and invoke the jurisdiction of Ohio courts. Allowing a bank to assign a mortgage to another party a full three years after filing a complaint in order to claim an initial right to file a civil against is against Ohio law, and must not be allowed by the Ohio Supreme Court. The legal authorities requiring existence of present, and not a possible future, justiciable controversy at the time of filing a contractual claim in order to invoked a trial court's jurisdiction to proceed in a civil action are: Moore v. City of Middletown, 12th Dist. No. CA2009-08-205, 2010-Ohio-2962 47-48 (party seeking relief must have personal stake in the outcome); Culver v. City of Warren, 84 Ohio App. 373, 396, 398, 83 N.E.2d 82 (7th Dist. 1948) (dismissing claims filed by party whose legal interest in a lease had expired for having "no legal interest in the controversy"); Alburn v. Union Trust Co., 80 N.E.2d 721, 730-733 (C.P.1947) (dismissing claims for lack of justiciable controversy and discussing same in context of declaratory judgment action); Karr v. JLH of Athens, Inc., 4th Dist. No. 99CA57, 2000-Ohio-1944 (a claim is moot when it presents no justiciable controversy); Voinovich v. Ferguson, 63 Ohio St.3d 198, 208-209, 586 N.E.2d 1020 (1992) (Douglas, J. concurring opinion, and other justices in both dissent and concurrence discussing justiciable controversy standards); GZK, Inc. v. Schumaker Limited Pa^tnership, 2d Dist. No. 22172, 2008-Ohio-1980 123-124, 127 (finding standing and justiciable controversy where party filing action was a party to an enforceable contract); Shealy v. Campbell, 20 Ohio St.3d 23, 25, 485 N.E.2d 701 (1985) ("courts must look to the substantive law creating the right being sued upon to see if the action has been instituted by the party possessing the substantive right to relief."); Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, 13, 17 (there is no justiciable controversy between adverse parties where lack of contractual damages fails to provide a controversy between adversaries, and a justiciable controversy must be grounded upon a present dispute, not on a possible future dispute); U.S. Bank National Association v. Wo^ley V. Per^^y, 8f Dist. No. 94757, 2010-Ohio-6171, 21 (bank provided insufficient summary judgment evidence to prove it had standing to bring a foreclosure action by proving it was the owner of a mortgage at the time the complaint was filed) (ordering the trial court to dismiss the complaint in foreclosure without prejudice). Applying these authorities requires dismissal of the foreclosure case filed without a present justiciable cont^oversy on March 1, 1996.

Subsequent decisions against the Appellant cannot be based upon the void foreclosure judgment issued in the void action. There is no res judicata effect for a void judgment that is a nullity. Admittedly, there has been over fifteen years of litigation of this issue. However, the void judgment cannot be changed into a valid judgment. For these reasons, leave to appeal should be granted so the public can be assured that void iudgments will not be used against them in future cases, and parties cannot invoke the jurisdiction of Ohio courts by filing civil actions when they do not have a present justiciable controversy based on contract. Further reasons for hearing the appeal are to settle the different case law agreeing and disagreeing with Wells Fargo Bank, NA. v. Jo^dan, 8th Dist. No. 91675, 2009-Ohio-1092, 22, holding that there is no standing to foreclose when the assignment of a mortgage is signed nearly three weeks after the complaint is filed. The facts in this case, in the same appellate district, were that the assignment from Fannie Mae to NationsBanc occurred nearly three years after filing the corrtplaint. Clearly, the foreclosure judgment was void, and not subject to direct appeal, and the appellate court should have applied Jordan to its own ruling.

II. STATEMENT OF THE CASE AND FACTS Richard F. Davet's situation is the same as the situation in Wells Fargo Bank, N.A. v. Jordan. The foreclosure case against Richard Davet was filed by NationsBanc on March 1, 1996, but an assignment of mortgage to NationsBanc was not executed until at least March 14, 1996. (See Defendant's motion to dismiss at pages 2 and 13 in the appeals court). At the time that NationsBanc filed the complaint for foreclosure, NationsBanc was not the owner of the note and mortgage. As recently as February 3, 2011 the Eighth District Court of Appeals of Ohio applied Wells Fargo Bank, N.A. v. Jordan to reverse a pre-2009 foreclosure in Deutsche Bank Natl. Trust Co. v. T^iplett, 8th Dist. No. 94924, 2011-Ohio-478, 12 ("The case law in the 8th District is

simple and clear; the putative mortgagee must own the mortgage at the time of the filing of the complaint, otheNwise it lacks standing. ") (emphasis added). If Richard Davet argued today what he argued in 1996 he would win. NationsBanc, according to the binding case law precedent in Cuyahoga County, was not entitled to judgment in foreclosure as a matte^ of law. The judgment is void and a nullity - void ab initio from the inception of the trial court civil action. Res judicata cannot apply as a bar to a judgment that is void ab initio. Richard F. Davet did not have to appeal the foreclosure judgment because it was void, and not a valid final judgment. The appeal court was incorrect in relying upon the void foreclosure proceedings in their entirety. Collateral estoppel also only bars future claims when there is no fraud or collusion. See, GutieYrez v. Mika Metal Fabricators, l lth Dist. No. 2005-L-152, 2006-Ohio-4818, 14, Grava v. Parkman Township, 73 Ohio St.3d 379, 381-383, 1995-Ohio-331, 653 N.E.2d 223. In Richard F. Davet's case, his mortgage was assigned to Federal National Mortgage Association on August 30, 1988. Therefore, when NationsBanc filed for foreclosure on March l, 1996, NationsBanc did not own Davet's mortgage. The judgment was procured by fraud and cannot be a bar to future claims based on res judicata. Fraud is a material issue of fact for a jury to decide. It is up to a jury to determine whether Fannie Mae breached its contract with Davet by committing fraud and having NationsBanc file for foreclosure against Davet, allowing the servicer NationsBanc to file a faise assignment of mortgage with the Cuyahoga County Recorder's office whereby NationsBanc claimed to receive an assignment of mortgage from Society National Bank, and then recording a contradictory assignment of mortgage ir_ 1999 where Federal National Mortgage Association assigned Davet's mortgage to NationsBanc. The judgment of foreclosure was obtain based on these false representations.

Since the 1988 assignment proves that Fannie Mae owned Davet's mortgage, Fannie Mae has breached its contract with Davet (the mortgagor) by allowing NationsBanc to conduct a foreclosure against Davet while NationsBanc did not own the mortgage. This fraud continued for over three years, until an assignment was made in 1999. The court proceeded under a fraud purported by the plaintiffs. Additionally, collateral estoppel can only bar claims that were brought or should have been brought in an earlier action. Since the foreclosure action was filed by NationsBanc, Davet was not required to bring in that case his claims against Fannie Mae. A litigant is only barred from bringing compulsory counterclaims in a future action. Civ.R. 13. Since Fannie Mae was not a party to the foreclosure action, Richard F. Davet was and is free to pursue his claims against Fannie Mae in this civil action. The statute of limitations does not bar Davet's claims because he has been continuously litigating this issue for fifteen years. Any statute of limitation would be equitably tolled. See, Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1465 (6`h Cir.1988) (equitable tolling applies where the defendant concealed the conduct, the concealment prevented earlier discovery, and the plaintiff has been diligent in trying to find out about the cause of action). Further, Davet filed the action within four years of being forced to leave his home based on a void ab initio foreclosure judgment. The 1996 assignment document was filed 13 days too late and directly contradicts the i 988 assignment to F annie P^ae and the i 999 ownership ciairns of Fan-riie P^ae w hen it assigr^ed the mortgage to NationsBanc. A court of general jurisdiction has the inherent right and power to protect itself against the perpetration of a fraud by vacating a prior judgment. Jelm v. Jelm, 155 Ohio St. 226, 240, 98 N.E.2d 401 (1951).

Plaintiff s breach of contract claim is also within the 15 year statute of limitations because the contract was breached by Fannie Mae when the foreclosure case was filed by NationsBanc on March 1, 1996. Therefore, Plaintiff's claim was timely filed on January 21, 2011. Plaintiff was harmed by Defendant's misconduct because Plaintiff was prevented from the opportunity to negotiate payment arrangements with the true owner of the mortgage and note. Davet attempted to tender payment to NationsBanc, but this offer was rejected: Se"e Complaint. Defendant Fannie Mae breached the contract because Fannie Mae was the holder but not a party to the foreclosure case and did not perform the contract by following its own servicing guidelines

prior to the foreclosure.


The foreclosure documents form the following fact pattern. On March 1, 1996 NationsBanc Mortgage Corporation, through the law firm of Carlisle, McNellie & Rini Co., L.P.A., filed a complaint for foreclosure against Richard F. Davet. The complaint did not have an assignment of mortgage attached in accordance with Ohio Civil Rule 10(d). An assignment of mortgage from Society National Bank, fka, Central National Bank of Cleveland to NationsBanc Mortgage Corporation was executed on March 14, 1996, thirteen days after the complaint was filed on March 1, 1996. The assigned was prepared by the same law firm. On August 30, 1988 an assignment of mortgage was executed, but no recorded, and it states that Society National Bank "sells, assigns, transfers and sets over to Federal National iviortgage Association ^... j aii of iis right, tiiie, and inierest to a ceriain morigage deed dated June 15, 1978." (Plaintiff's motion for summary judgment and to vacate judgment in foreclosure, Ex. A). During the pendency of the foreclosure action, the law firm prepared another assignment of mortgage which was executed on March 18, 1999 whereby Federal National Mortgage

Association assigned Davet's mortgage to NationsBanc Mortgage Corporation (Plaintiffls Motion for summary judgment and to vacate judgment in foreclosure, Ex. B). On September 24, 1999 the Court granted Bank One's motion for summary judgment on its amended cross-claim for foreclosure. Despite numerous attempts by Davet to correct this legal error, foreclosure proceeded, and Davet lost his home in January 2007. The instant case was filed to correct these legal errors and to vacate the null foreclosure judgment. However, the Court of Appeals dismissed Davet's instant appeal because of his failure to appeal the null and void judgments directly in the foreclosure action, in effect giving the void judgment in the foreclosure proceeding validity as a final valid judgment subject to direct appeal on the merits and rather than nullities not entitled to any deference. This case was filed separately by Appellant against FMNA directly because FMNA was not even a party to the foreclosure action and not subject to any judgments entered therein. This case will decide whether a civil action filed by a party without a justiciable controversy based on a contract (mortgage and note) can proceed with trial court jurisdiction for over three years. Fannie Mae's later 1999 assignment to NationsBanc contradicted the March 14, 1996 attempted assignment from Society National Bank fka Central National Bank of Cleveland to NationsBanc Mortgage Corporation in the foreclosure ^ase. On March 1, 1996, when the foreclosure case was filed originally, there was only a possible future justiciable controversy between the Appellant and NationsBanc. The foreclosure action was filed on March 1, 1996 by a party without any enforceable rights to the contracts. This is in direct violation of Kincaid v. Erie, 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, 13, 17, which mandates that a non justiciable case is not a controversy under the Ohio

Constitution that a trial court can proceed with. The trial court must dismiss such an action as it is without jurisdiction to even proceed with the action. III. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. I: Summary judgment against Appellant is incorrect because a non-party and nonassignee to a contract cannot invoke the jurisdiction of an Ohio court by filing a civil action in foreclosure when a present justiciable controversy between them does not exist (i.e., an inchoate controversy dependent upon a future assignment of rights) pursuant to Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio6036, 944 N.E.2d 207, 13, 17, where the trial court's jurisdiction is not invoked under the Ohio Const. Art. IV, 4(B) and Civil Rule 12(H)(3) requires dismissal for lack of jurisdiction. The Ohio Constitution only grants the Common Pleas Courts of Ohio jurisdiction over justiciable controversies. Ohio Const., Art. IV, 4(B) ("(B) The courts of common pleas and divisions thereof shall have such original jurisdiction over all justiciable matters and such powers of review of proceedings of administrative officers and agencies as may be provided by law."). Therefore, only justiciable matters invoke the common pleas court's original jurisdiction. Voinovich v. Ferguson, 63 Ohio St.3d 198, 208-209, 586 N.E.2d 1020 (1992), Shealy v. Campbell, 20 Ohio St.3d 23, 25, 485 N.E.2d 701 (1985), and Kincaid v. Erie Ins. Co., 2010Ohio-6036, 13, 17 mandate the dismissal of a case filed by a party without a p^esent justiciable cont^oversy. A possible future justiciable controversy does not invoke the court's jurisdiction. A justiciable matter involves an actual controversy. When foreclosure plaintiff does not own the note and mortgage at the time a complaint is filed there is absolutely no justiciable controversy between the foreclosing plaintiff and the mortgagor (usually a defendant Ohio homeowner), and therefore absolutely no subject matter jurisdiction before the trial court. A

claim is moot when there is no justiciable controversy. See State ex rel. Ohio Adult Parole Auth.

V. Conigilio, 5th Dist. No. 92AP040028, 82 Ohio App.3d 52, 54, 610 N.E.2d 1196 (1993).
"Subject-matter jurisdiction is fundamental. It defines the court's power to decide cases. Subjectmatter jurisdiction can never be waived; any decision entered without subject-matter jurisdiction is void." Francis David Corp. v. Scrapbook Memories & More, 8`h Dist. No. 93376, 2010-Ohio82, 17 (citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, 11). The Ohio Const. Art. IV only grants the Common Pleas Court of Ohio subject matter jurisdiction over justiciable controversies. To be justiciable, the controversy must have injury, causation, and the court must be capable of redressing the injury. Without the real party in interest, by definition, there is no controversy and no justiciable matter. Cleveland Paint & Color Co. v. Bauer Manufacturing Co., 155 Ohio St. 17, 25, 97 N.E.2d 545 ( 1951) (an action must be prosecuted in the name of the real party in interest). There was no justiciable controversy in the Appellant's foreclosure case because NationsBanc was not the real party in interest and lacked standing to foreclose. NationsBanc was not the holder of the note or the mortgage and had suffered absolutely no injury. Without a current injury, NationsBanc and Appellant did not have a justiciable controversy on March l, 1996. If Fannie Mae actually owned the note and mortgage on March 14, 1996, NationsBanc could not have received any rights from Fannie Mae by a purported assignment from Society Bank, and therefore there was no justiciable controversy between NationsBanc and Appellant on March 14, 1996 either. A trial court is required to dismiss an action in which it does not have subject matter jurisdiction. Civ. R. 12(H)(3). The Supreme Court of Ohio held that "A judgment rendered by a court lacking subject matter jurisdiction is void ab initio." Patton v. Diemer, 35 Ohio St.3d 68, 70, 518 N.E.2d 941

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(1998). "Consequently, the authority to vacate a void judgment is not derived from Civ.R. 60(B), but rather constitutes an inherent power possessed by Ohio courts. See Staff Notes to Civ.R. 60(B); Lincoln Tave^n, Inc. v. Snader, 165 Ohio St. 61, paragraph one of the syllabus, 133 N.E.2d 606 (1956); Westmoreland v. Valley Homes Corp., 42 Ohio St.2d 291, 294, 328 N.E.2d 406 (1975). It was neither incumbent upon Appellee to establish a basis for relief under Civ.R. 60(B) nor was it necessary for the common pleas court to derive its authority therefrom. Rather the `judgment' sought to be vacated constituted a nullity. It was therefore within the inherent power of the trial court to vacate the judgment." Patton v. Diemer, 35 Ohio St.3d 68, 70, 518 N.E.2d 941 (1998). A motion to vacate a judgment on jurisdictional grounds is a direct attack (not a collateral attack) upon a judgment authorized by common law, and constitutes an allegation that the judgment is void. Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61, paragraph one of the syllabus, 133 N.E.2d 606 (1956); Hayes v. Kentucky Joint Land Bank of Lexington, 125 Ohio St. 359, 366, syllabus (1932) (vacating judgment issued without jurisdiction). Appellant's claim of jurisdictional failure in this action is a direct attack on the foreclosure judgment in the NationsFsanc foreciosure aciion. The foreclosure judgment against Appellant was void ab initio because NationsBanc lacked standing. "Standing is a jurisdictional requirement and cannot be waived." Buckeye Foods v. Cuyahoga Cty. Bd. Of Revision, 78 Ohio St.3d 459, 460, 1997-Ohio-199, 678 N.E.2d 917 ("Cleveland replies that standing is jurisdictional and cannot be waived. We agree with Cleveland."); New Boston Coke Corp. v. Tyler, 32 Ohio St.3d 216, 218, 513 N.E.2d 302 (1987) ("[T]he issue of standing, inasmuch as it is jurisdictional in nature, may be raised at any time during the pendency of the proceedings.").

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The conflicting assignments of mortgage, in 1996 and in 1999, raise serious questions as to the true nature of the assignment documents themselves. Any reliance upon either of these assignment documents cannot invoked the court's jurisdiction, and the complaint filed on March 1, 1996, under either assignment document, still did not consist of a present justiciable controversy required by the Ohio Const. Art. IV, 4(B). "The question of standing is whether a litigant is entitled to have a court determine the merits of the issues presented." Ohio Cont^s. Ass'n. v. Bicking, 71 Ohio St.3d 318, 320, 643 N.E.2d 1088 (1994) (citing Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)). To have standing a plaintiff must be able to show actual injury. Id. To be compensable, an injury must be concrete and not simply abstract or suspected. State ex. rel. Consumers League of Ohio v. Ratchford, 8 Ohio App.3d 420, 424, 457 N.E.2d 878 (lOth Dist.1982). In general, a void judgment is one that has been imposed by a court that lacks the authority to act. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568 12; State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, 27. NationsBanc was not the proper party to invoke the jurisdiction of the triai court and therefore, Civii Rule i7 is inapplicable (which governs ratification, joinder, or substitution, after proper jurisdiction is invoked by the proper party). "We hold that in a foreclosure action, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by subsequently obtaining an interest in the mortgage." Wells Fargo Bank, N.A. v. Byrd, lst Dist. Nos. C-070889 & C-070890, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722, 16; Bank of New York v. Gindele, ls` Dist. No. C-090251, 2010-Ohio-542, 4. A holder of rights or interest in property is a necessary party to a foreclosure action. Wells Fa^go Banl^ N.A. v. Jo^dan, 8th Dist. No. 91675, 2009-Ohio-

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1092, 22 (citing Hembree v. Mid-Ame^ica Fed. Sav. & Loan Assn., 2"d Dist. No. 11007, 64 Ohio App.2d 144, 152, 580 N.E.2d 1103 (1989)). In 1988, Society National Bank had assigned Appellant's mortgage to Federal National Mortgage Association. The March 14, 1996 attempted assignment to NationsBanc was a nullity, and the trial court never had jurisdiction to proceed with the foreclosure action ab intio. The foreclosure judgments are all nullities and all subsequent judgments relying upon the foreclosure judgments are also legal nullities. The substantive issues of fraud and breach of contract by the Appellant against FNMA (Fannie Mae) raised in the trial court case against Fannie Mae are valid legal issues that should not have been foreclosed to the Appellant by the appeals court denying the Appellant's appeal based on a res judicata application of the void foreclosure proceedings and judgments. The assignment by Fannie Mae to NationsBanc in 1999 makes Fannie Mae complicit with NationsBanc in the Appellant's fraud claims. These are issues for a jury to hear, but Appellant should not be denied this due to incorrect application of the Ohio Constitution's ban on non justiciable matters. Material issues of fact remain as to whether Appellant's payment were properly applied, and whether Fannie Mae breached the contract with Appellant by refusing to accept payments. Because NationsBanc incorrectly and unlawfully filed a civil action in foreclosure against the Appellant, Appellant was denied an opportunity to litigate his breach of contract claims against Fannie Mae that ripened between March 1, 1996 and the 1999 assignment from Fannie Mae to NationsBanc. Summary judgment on these claims against Fannie Mae should not have been granted to the Appellee. Another substantive issue is that Fannie Mae never filed a satisfaction of mortgage as required under Ohio Revised Code 5301.36.

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Res judicata requires, inter alia, a final valid judgment on the merits entered by a court with jurisdiction. Silve^ v. Krulak, 8th Dist. No. 93285, 2011-Ohio-1666, 11 (citing Portgage Cty. Bd. Of Commrs. v. Akron, 109 Ohio St.3d 106, 123, 2006-Ohio-954, 846 N.E.2d 478). This first element for a claim of ^es judicata fails precisely because the foreclosure judgment was void ab initio and invalid because the trial court did not have jurisdiction to enter foreclosure judgment against the Appellant. Res judicata cannot apply to the appeal of the instant motion to vacate void judgments. Res judicata does not apply unless there is "a final judgment." State v. Perry, 10 Ohio St. 2d 175, paragraph nine of the syllabus, 226 N.E.2d 104 (1967). Since the doctrine of res judicata does not apply to a void judgment, the appeals court should have reached the merits of the appeal. See Ohio v. Baker, 9th Dist. No. 25024, 2010-Ohio-4329, 8. Even a late objection based upon a jurisdictional defect is preserved, without direct appeal, because a party cannot waive a jurisdictional defect regardless of procedural deficiencies. H.R. Options, Inc. v. Zaino, 100 Ohio St.3d 373, 2004-Ohio-1, 8. The party seeking jurisdiction has the burden of proving it has standing and the court has jurisdiction. Appellant raised the void judgment and jurisdictional issues, and NationsBanc has the duty to prove the trial court had jurisdiction on March 1, 1996. A party may collaterally attack a judgment that is void ab initio. Black v. Aristech Chemical Co., 4th Dist. No. 07CA3155, 2008-Ohio-7038 15; Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, 11. In the instant case filed against Fannie Mae, Appellant merely seeks a court of competent jurisdiction in Ohio to exercise its inherent power and authority to declare the foreclosure judgment void. The trial court and Eighth District Court of Appeals of Ohio failed to see this and exercise their authority. If a court lacks subject-matter jurisdiction, its judgment is "null and void [and] is subject to collateral attack, not only by the

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parties thereto, but by others---that is, by whomever it might affect * **." Horn v. Childers, 116 Ohio App. 175, 179, 187 N.E.2d 402 (4th Dist.1959). This Court should address justiciable controversy and jurisdiction under the authority of the Ohio Constitution. Continuing to fail to addre^s the void judgment issue results in erroneous, unconstitutiorial reliance upon the doctrine of res judicata based on the void foreclosure judgment. But the doctrine of res judicata does not apply to a void judgment. That is the crux of this appeal. Declare the foreclosure judgment void and null. Allow the Appellant his day in court to litigate breach of contract and fraud against Fannie Mae, and to address any other injuries caused by the invalid foreclosure proceedings that have dragged Appellant, and Ohio courts, through fifteen years of unnecessary, and unconstitutional, litigation. This Court should put a stop to this now. Court of Appeals Judge Sean C. Gallagher dissented in the denial of en banc consideration. En banc consideration could have addressed the conflicting law in the Eighth District Court of Appeals of Ohio as to a trial court's jurisdiction and justiciable controversies. The Ohio Supreme Court should exercise jurisdiction in this appeal and address these issues. All Ohio courts would benefit from a uniform treatment of the issues of justiciable controversies and trial court jurisdiction in foreclosure actions filed by non-parties and non-assignees to foreclosure documents. The Ohio Const. Art. IV, 4(B) would be applied properly. Foreclosure victims might find relief in Ohio courts for frauds and schemes perpetrated upon them since the foreclosure crises have become commonplace in the United States. In Ohio, foreclosure victims should be able to void any foreclosure judgment entered in foreclosure proceeding where the trial courts lacked subject matter jurisdiction due to lack of justiciable controversies.

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Hearing this appeal is the only proper thing for this Court to do because it is of great public importance and also raises the constitutional issues affecting thousands of Ohio homeowners, banks, and mortgage servicers, more than enough for the Court to choose to hear this appeal. IV. CONCLUSION For the reasons discussed above, this case involves matters of public and great general interest and a substantial constitutional issue of whether Ohio Const. Art. IV, 4(B) requires a present justiciable matter or controversy between plaintiff and defendant in a foreclosure action in order to invoke the subject matter jurisdiction of an Ohio trial court. The appellant requests that this court accept jurisdiction in this case so that the important issues presented will be reviewed on the merits, and reverses the judgment and opinion of the court of appeals. Respect, submitted,

Richard Davet, pro se P.O. Box 10092 Cleveland, Ohio 44110 (216) 451-6211 CERTIFICATE OF SERVICE This is to certify that a true and accurate copy of the foregoing jurisdictional memorandum of the Appellant was sent by regular U.S. Mail on October 19, 2012, to counsel for Appellees, James S. Wertheim, Esq. and i^eiany A. Fontazza, Esq., MCCI,IT1CUEi' c^ STAFFORD PLLC, 25550 Chagrin Boulevard, Suite 406, Beachwood, Ohio 44122-4640.

Richard Davet, pro se

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APPENDIX

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^uurt uf ^^^eaC^ ut ^^jiu


EIGHTII APPELLATE DIST1tICT COUNTY OF CUYAHOGA

JOUR.NAL ENTRY AND OPINION No. 97890

RICHARD F. DAVEZ`
PLAINTIFF-APPELLANT
vs.

EEDEI^,AL l^TATINAL MORTGAGE ASSDCIATIQN


DEFENDANT-APPELLEE

eTUI)GMEleTTe AF^'IRMEI^

Civii Appeal .froan the Cuyahoga County Court of Common Pleas


Case Nc. CeJ-74643^v

BE]F'+IZ,E: S. Gallagher, J., Boyle, P.J., and E. Gallagher, J_


I3;ELEASED A1ND JOI_I^.I^ALIZEI^; August 9, 2012

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A'"J.'OR.IVEYS FOl$ APPELLAI`1T 1V1are Dann Grace Doberdruk


Dann, Doberdruk & Wellen, LLC 4600 Prospect r'wenue

Cleveland, OH 44103

`'^LED AND JOURNALIIED ^'ER APRR. 22{C)

ATTOftNEYS FOR APPELLEE


James S. Wertheim Melany K. Fontanazza McC^linchey Stafford PLLC 25550 Chagrin Blvd.

AU^ 4 9 Z^i^
GEAALp-{, FUffF16T CtER^C9+lRT 4f 41PE^t^S Y ^..^ DEP i

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Suite 406 Beachwood, OI^ 44122

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SEAN C. GALLAGHER, J.:


{ 1} 1'laintif-appellant Richard F. Davet appeals from the trial court's decision granting summary judgment in favor of Federal National Nlortgage Association ("Fannie Mae") on ail clai^ns. For the following reasons, we affirm. {2} Davet's claims date to March l, 1996, when NationsBanc 1Vlortgage Corp. {"NationsBanc") filed a foreclosure action against Davet in Cuyahoga C.P. No. CV-304224 ("foreclos^.ne action") regarding Davet's property located at 24800 Community Drive, Beachwood, Ohio. Dauet u. Mikhli, 8th Dist. No. 97291, 2012Ohio-1200. Over the following 16 years, Davet continuously and vehemently challenged the txial court's jurisdiction over the foreclosure action. See id. at 3. in the foreclosure action, Davet maintained that NationsBanc lacked standing because Fannie Mae did not formally assign the mortgage to NationsBanc until I999. `i`he f.oreclosure trial court, in that case, denied Davet's motion for summary judgment in which he argued the standing issue as an affirmative defense. Thereafter, the trial court granted a judgment of foreclosure against i^avet cn ,1uly a3, 2005, and the property was soid.

^3} As this court previously recognized, Davet filed an eviction action


against the purchasers of the foreclosed property in 2009 and a second tort action against tl?e same purchasers, after the eviction case was dismissed, in C^lyahoga C.P. ?^Io. CV-724' 188. Id, at ^( 5-6. Ir^ voth cases; .navet claimed the foreclosure judgment was void ab initio because NationsBanc lacked standing,

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and therefore, the foreclosure was improper and the purchasers were trespassing on his property. Id. This court held that under the claim preclusion aspect of the doctrine of res judicata, Davet's claims as to the trial court's jurisdiction over the fareclosure case were prohibited when advanced in the separate proceeding. Id. at 13. This court found that Ilavet previously pursued his claim that the ^trial court lacked jurisdiction over the foreclosure action based on the standing issue and his remedy resterl with a direct appeal from the trial court's foreclosure judgment. Id. at 14-15. {4} Despite this court's Mihhli decision, Davet filed the current action against Fannie Mae, alleging that Fannie Mae breached the contract on the moi^tgage note by not crediting aIl Davet's martgage payments, committed a fraud upon the court by allowing its agent, NationsBanc, to file the 1996 fo-reclosure action without standing, failed to file a satisfaction of judgment required pursuant to R.^. 5301.36, participated in a civil conspiracy, and denied Davei basic cons-titutional rights in violation of his due process rights. Fannie Viae fiied a xnotion to dismiss ^he case. The trial court struck i avzt's fra ud upon the court, civil conspiracy, and due process claims as being insufficient pursuant to Civ.R. 12(F). Davet does not raise any error with this aspect of the trial eourt's decision.

{v} The trial court then convertedhe remainder ofthe r_^otxon to dismiss into one for summary judg^nent pursuant to ^iv.R. 12(B) because Fannie Mae

21

presented matters outside the pleadings. Davet filed a brief in opposition, claiming there were issues of material fact. The trial court granted summary judgment in favor of Fannie Mae on the breach of contract and failure to file a satisfaction of j udgxnent claims, holding that Davet cannot collaterally attack the final judgment of foreclosure of another court vested with jurisdiction to enter such order and that res judicata prohibited the claims raised in Davet's current compl_aint.

{^ 6} Davet timely appealed this decision, raising one assignment of error,


which. provides: "The trial court erred by granting summaxy judgment to [Fannie Maej based on res judicata because the court that granted the judgment of foreclosure against Davet did not have jurisdiction and [Fannie MaeJ was never a party to that case.'^ Essentially, Davet claims that he is not precluded from advancing the l^reach of contract claim against Fannie Mae because the foreclosure caurt, which already disposed of those issues when it granted a fcr.eelosure judgment against hi^n, laeked subject matter ju-risd'zction ovex the claixr.s because of I^TaionsLar_c's lac7^ of stand;ng. According to Davet, he may therefore collatexally attack the trial court's foreclosure judgment. Davet's argument is 1_ixnited to the jurisdictiorsal argument and is ^rithout merit.i

'^Te note that. Davet failed to advance argument in support of the proposition that the trial co^trt erred by granting summary judgment upon his claim against P'annie 14'Iae for failing to file a satisfaction of judgment as statutorily mandated pursuant to li,.C. 5301.36(B). Nevertheless, Fannie Mae assigned its interest in the niortgage to NationsBanain 1999. The statute of limitations on claims raised pursuant

22

{^7^ AppeIlate review of summary judgment is de novo, governed by the


standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 155, 2005-Ohio4559, 833 N.E.2d 712, 8. Accordingly, we afford na deference to the trial court's decision and independently review the record to determine whether summary judgment. is appropriate. Hollins u. Shaffer, 182 Ohio App.3d 282, 2009-Ohia2136, 912 N.E.2d 637, 12 (8th Dist.). Under Civ.R. 56(C), summary judgznent is proper when the moving party estabhshes that (1} no genuine issue of any material fact remains, (2} the moving partyis entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and construing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Dicncan v. Mentor City Council, 105 4hio St.3d 372, 2005-Ohio-2163,

S2S N.E.2d 832, 9, citing Temple v, Wean United, Inc., 50 Ohio St:2d 317, 327, 364 N.E.2d 267 (1977).
^$} Generally in Ohia, ccllaterally attacking final judgments by way of a separate action is disfavored. Ohio Fyro, Inc. ^. Ohio ^ept. of Comm.erce, 115 flhic St_3d 375, 200 7-0hio-5024, 875 ^LE.2d 550, 22. "[T]here is a iirrxi and longstanding principle that final judgments are meant to be just that - final." Id., citing Kingsboraugh u. Tousley, 56 Dhio St. 450, 458, 47 N.E. 54I (i897).

to R.^. 5301.36(B) is s^ years. Rosette u. Countrywide Tlo^ne Loans, Inc., 105 Ohio St.3d 296, 299, 2005-Ohio-]736, 825 N.E.2d 599. Davet filed the current action on January 21, 2011, weil after the expiration of the statute of limitations on that claim.

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Tlzere are two notable exceptions: "when the issuing court lacked jurisdiction or when the order was the product of fraud (or of conduct in the nature of fraud)." Id. at 23. Therefore, as this court previously recognized, "a collateral attack on a judgment is really an attack on the integrity of the judgment rather than its merits." .tVlickey u. Rakakis, 8th Dist. No. 97053, 2012-Ohio-273, ^^ 9, citing Ohio Pyro. {J} IDavet argues that the trial court iacked jurisdiction over the foreclosure case because NationsBanc lacked standing to pursue the claims. flstensibly, Davet attempted to invoke the jurisdictional exception to the prohibition against collaterally attacking the judgment of a trial court in a separate proceeding. To the contrary, hawever, Davet already unsuccessfully raised the issue of standing as an affirmative defense in the foreclosure case, the.reby submitting to the foreclosure couxt the issue of whether it had jurisdiction_ State ex rel. Eriyart ^. O 1Veill, 71 Ohio St.3d 655, 646 N.E.2d 1110 {T995) (generally, a court ^,vith general subject matter jurisdiction over the cla^ms asserte^! Can deter?nine its own jurisdictior_, and the party challenging a court's decision on the jurisdictional issue has an adequate remedy at law thxough a direct appeal). r i^} The trial court granted a judgment of foreclosure and overruled Davet's affirmative defense challenging NationsBanc's standing. In short, in this case, Davet impermissibiy attempted to collaterally attack the merits of the

24

t.rial court's decision in the foreclosure action, the decision finding that NationsBanc had standing, rather than the jurisdictional integrity of the judgment. lt is axiomatic that Davet cannot file a separate action challenging a trial court's decision on the merits in any court other than tb.e appellate court with jurisdiction to review that trial court's decisions.

{ 11} More important to the disposition of Davet's current claims, on two


previous occasions this court held that Davet's remedy to challenge the standing issue was in the direct appeal of the foreclosure e.ourt's decision and that NationsSanc's lack of standing was not a jurisdictional defect for which a collateral attack could be taken. State ex rel. Dauet v. Sutula, 8th Dist. No.

96548, 2011-Ohio-2803, ^j 8(holding that Davet had an adequate remedy in directly appealing the final decision of foreclosure, in which the trial court overruled his argument that the plaintiff lacked standing); Mihhli, 8th Dist. No. 97291, 2012-Ohio-1200, ^; 14-15 (holding that the lack of standing did not deprive the txial court in the foreclosure action of jurisdiction and Davet's Y'enled"y" resteai vJitij a dlre:,t appeal nflig fnreClr^g^iye t,'Ot7rt's decision).Z Davet

'-6^ie note thatthe "[1]ack of standing challenges the capacity of a party to bring an action, not. the subject matter jurisdiction ofthe court." State ex rel. Jones u. Suster, 84 Ohio St.3d 70, 77, 1998-hio-275, 701 I^T.E.2d 1002. Standing is generally an affirmative defense that can be waived. Id. The Ohio Supreme Court has "held standing to be jurisdictional only in limited cases involving administrative appeals, t^^here parties must meet strict standing reauzrements in order to satisfy the threshold requirement for the administrative tribunal to obtain jurisdiction." Id., citing Buclaeye ^'oods u. Cuyahoga Cty. Bd. of Reuision, 7 8 Ohio St.3d 459, 678 N.E.2d 917 (T997); New Boston Col^e Corp. u. Tyler, 32 Qhio ,St.3d 216, 218, 513 N.E.2d 302 {1987}.

25

never appealed the trial court's decision in the foreclosure action, and we are

constrained by our precedent in State ex rel. Dauet and Mikhli. Davet's sole assignment of error is overruled.
^^ 12} There was no genuine issue of material fact. Davet's current claims in the underlying case are prohibited because the claims impermissibly

attempted to collatexally attack the merits of a trial court's judgment in a


separately filed action. The decision of the trial court is affirmed. lt is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. lt is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. . A certified copy of this entry shail constitute the mandate pu-rsuant to l^,ule 2^o,^th I^ules of AppelJ^ te Procedure.

 ',, ^ ^ ^ r ^^^ ^!

SE1^N C. CTA"LLAGHER.,^p DGE


. NA^,Y J. BQ ^LE, P_^i ., and

EILEEI^ A. CzALLA^I^E^, ^^., ^GNCU^.

26

^.

..

__-

5:?.

Court of Appea(s of Ohio, Eighth District


County of Cuyahoga Gerald E. Fuerst, Clerk of Courts
RICHARD F. DAVET Appellant COA NO. LOWER COURT NO. 97890 CP CV-746430 COMMON PLEAS COURT -vsFEDERAL NATIONAL MORTGAGE ASSN. Appelfee MOTI4N NO. 457805

Date 09/12/12 Journal Entry

s . ^ . "^

Motion by Appellant for reconsideration and for certification of a conflict to the Ohio Supreme Court is ^ 9 t' O ^'. ^" "^ denied. " M -+^. ^
9 F^ ^ _ ep,^^c .^^

^ r flG^+^^1^^^ ^^ ^OLG9`ev^ .:^r. c ' .i ^ ^ O t&R O ^ S ^ ^^^^^ ^

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GERA

I.^RST

^ a CLERK F T 0 T`,^^^jAPPEALS ^ ^ BY DEP. C^ t^"

O 1^

Presiding Judge MARY J. BOYLE Concurs


Judge EILEEN A. GALLAGHER Concurs

^ ^l.

Judge SEAN C. GA LAGHER

V^1^^760 PG^^^^

27

QCourt of ^p^eaI^ nf ^Ijia, QEightlj ^i^tritt


County of Cuyahoga Gerald E. Fuerst, Clark of Courts RICHARD F. DAVET Appellant COA NO, LOWER COURT ND. 97890 CP CV-746430 COMMON PLEAS CQURT _ys_ FEDERAL NATIONAL MORTGAGE ASSN. Appellee MOTION N0.457806

Dafe 09125I2012 ^ Journal Entry

This matter is before the court on appellant's application for en banc consideration. Pursuant to App.R. 26, Loc.App.R. 26, and McFadden u. Cleue7and State Uniu 120 Ohio St.3d 64, 2008-Ohio-4914, 896 N.E.2d 672, we are obligated to resolv^ conflicts between two or more decisicns of this court on any issue that is dispositive of the case in which the application is filed. We find that, even if there is a conflict among this court's decisions with respect to the question whether standing is a jurisdictional issue (a conclusion we do nnt reach here), that conflict is not dispositive of this appeal. Resolution of the alleged conflict would not change the outcome in this case because appellant was bound by the determination in the previous case that the plaintiff had standing. Therefore, appellant's application for en banc consideration is denied.

^^ ^ ^^ ^^ ^^ '^ ^
(9 ^

PATRICIA A..BLACKMON, ADMINISTRATIVE JUDGE


Concurring: MARY J. BOYLE, J., FRANK D. CELEBREZZE, JR., J., COLLEEN CONWAY COONEY, J., EILEEN A. GALLAGHER, J., LARRY A. JONES, J., KATHLEEN ANN KEOUGH, J., MARY EILEEN KILBANE, J., KENNETH A. ROCCO, J., MELODY J. STEWART, J., and JAMES J. SWEENEY, J. Dissenting: SEAN C. GALLAGHER, J.

R^CEIVED FOR F^^^HC"

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GERALD ^.FUERST
CLER I^JP^TH BY ` CURT^ PP DEP,

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