IN THE SUPREME COURT OF OHIO

Transcription

1 ORIGINAL IN THE SUPREME COURT OF OHIO STATE OF OHIO ex rel. RICHARD F. : Case No DAVET P.O. Box : Original Action in Prohibition and Cleveland, Ohio : Mandamus Arising From Cuyahoga County Common Pleas Relator, : Court Case No. 96 CV vs. THE HONORABLE JUDGE KATHLEEN ANN SUTULA c/o Cuyahoga Court of Common Pleas Courtroom 23-D General Division 1200 Ontario Street Cleveland, Ohio Respondent. RELATOR'S OPPOSITION TO RESPONDENT'S MOTION TO DECLARE RELATOR A "VEXATIOUS LITIGATOR" UNDER S.CT. PRAC. R. 4.03(B) RICHARD DAVET P.O. Box Cleveland, Ohio Tel: (216) Relator pro se TIMOTHY J. McGINTY, Prosecuting Attorney of Cuyahoga County, Ohio CHARLES E. HANNAN * ( ) Assistant Prosecuting Attorney * Counsel of RecoNd The Justice Center, Courts Tower, 8th Floor 1200 Ontario Street Cleveland, Ohio Tel: (216) /Fax: (216) channon(a7prosecutor.cuvahogacountv.us Counselfor Respondent fmnd E APR CLFRKOFCQURT SUPREME CCURT OF OHI F OL 0 APR CLERK OF COURT SUPREME COURT OF HI

2 IN THE SUPREME COURT OF OHIO STATE OF OHIO ex rel. RICHARD F DAVET P.O. Box Cleveland, Ohio vs. - Relator, THE HONORABLE JUDGE KATHLEEN ANN SUTULA c/o Cuyahoga Court of Common Pleas Courtroom 23-D General Division 1200 Ontario Street Cleveland, Ohio Case No Original Action in Prohibition, and Mandamus Arising From Cuyahoga County Common Pleas Court Case No. 96 CV RELATOR'S OPPOSITION TO RESPONDENT'S MOTION TO DECLARE RELATOR A "VEXATIOUS LITIGATOR" PURSUANT TO S.CT. PRAC. R. 4.03(B) Respondent. Pursuant to S.Ct.Prac.R. 4.03(B) and applicable precedent setting the standard for granting a motion to declare a vexatious litigator in Ohio case law, Relator respectfully opposes the Respondent's S.Ct. Prac. R. 4.03(b) motion to declare the Relator a "vexatious litigator." No Ohio court has declared the underlying case not void ab initio under the precedent set forth in this Court's recent (October 31, 2012) decision in Federal Home Loan Mortgage Corporation v. Schwartzwald, 134 Ohio St.3d 13, 979 N.E.2d 1214, 2012-Ohio-5017, 28 (no standing to invoke the jurisdiction of the common pleas court on the date offiling the complaint). As set forth in the original action for writ, the proposed Plaintiff in Cuyahoga County Court of Common Pleas, Case No. 96 CV , did not prove in the record below that, prior to filing the complaint on March 1, 1996, the Plaintiff was a holder

3 entitled to enforce the note upon which the foreclosure action was premised on March 1, 1996, nor did the Plaintiff therein have the mortgage assigned to it until years after March 1, Without a civil action being initiated by a plaintiff with standing to invoke the trial court's jurisdiction, all judgments issued in that case are null and void. The Plaintiff did not hold the original note upon which the foreclosure action was premised on or before March 1, 1996, and the Plaintiff did not receive an assignment of the mortgage until years after filing the complaint therein. These well-established facts in the record below are the legal grounds relied upon by Relator for attacking the action in toto that should not be held against the Relator under S.Ct. Prac. R. 4.03(b) vexatious litigation standards. Relator's legal and factual background in the underlying case represents similar facts and law applicable to many other Ohio citizens whose real property was illegally foreclosed by putative plaintiffs that did not meet the standards set forth in Schwartwald supra. In this writ, the Relator seeks declaration by this Court that the holding in Schwartwald, supra., overrules any other Ohio law to the contrary where a putative civil action, in fact void under Ohio law, cannot be used as res judicata against a Relator when the underlying action is in fact void ab initio, and all foreclosure judgments entered therein are also void and subject to vacation. Also, because a civil action was never legally filed, and the trial court's jurisdiction was never invoked, a civil action did not exist. These are sufficient legal grounds for filing the instant original action for writ and Relator should not be declared a "vexatious litigator" for filing proper actions under existing Ohio case law. Relator did not file the existing original action until after this Court's Schwartzwald decision. Appeals and any other filings in the underlying case are 2

4 in fact void and nullities. There was no holding by this Court previously on the merits of the issue of void ab initio under Schwartzwald's holding. Clearly, Respondent has not met the standards for a declaration of Relator as a "vexatious litigator," as set forth in the attached and incorporated memorandum in opposition to the Respondent's motion. Relator requests that the motion to declare Relator a vexatious litigator be denied. Respectfully submitted, Ricliar,,d Davet P.O. Box Cleveland, Ohio Tel: (216) Relator pro se

5 IN THE SUPREME COURT OF OHIO STATE OF OHIO ex rel. RICHARD F. DAVET P.O. Box Cleveland, Ohio vs. Relator, Case No Original Action in Prohibition and Mandamus Arising From Cuyahoga County Common Pleas Court Case No. 96 CV THE HONORABLE JUDGE KATHLEEN ANN SUTULA c/o Cuyahoga Court of Common Pleas Courtroom 23-D General Division 1200 Ontario Street Cleveland, Ohio Respondent. MEMORANDUM IN S T OF R'S IDENT'S MOTION TO DECLARE RELATOR A "VEXATIO LITIGATOR" PURSUANT TO S.CT. PRAC. R. 4.03(B) This Court has denied motions to declare appellants, appellee's, and relators vexatious litigators. In holdings without opinion this Court denied such motions in Conley v. Smith, No , 117 Ohio St.3d 1474, 2008-Ohio-1841, 884 N.E.2d 1107; and State ex rel. Black v. Risner, No , 131 Ohio St.3d 1551, 2012-Ohio- 2263, 967 N.E.2d 762. Relator acknowledges that the public has a definable interest in curtailing the activities of vexatious litigators under Ohio statutes that transcends the boundaries of judicial concerns and, as a result, is appropriate for legislative enactment. Mayer v. Bristol, Nos , 00-56, 91 Ohio St.3d 3, 7, 2000-Ohio N.E.2d 656 (litigator declared vexatious litigator by criminal plea and statute found constitutional). 4

6 However, Relator is an Ohio citizen and real property owner, and was not found vexatious by criminal plea. The issue brought forth by Relator in Ohio courts is not vexatious and is very important to all Ohio real property owners and citizens. Under the same standard as set forth by this Court in the above case, the Relator states that the Ohio public has a definable interest in curtailing the activities of vexatious mortgage foreclosers, including banks, and mortgage servicers who filed improper complaints and foreclosure actions that did not invoke the jurisdiction of various Ohio trial courts. This also transcends the boundaries of judicial concerns and is appropriate for legislative enactment. However, the Ohio legislature has not enacted new laws to protect Ohio citizens from predatory actions filed by banks that never proved they met the standard for initiating an Ohio civil action. This Court confirmed the standard for invoking a trial court's jurisdiction in Federal Home Loan Mortgage Corporation v. Schwartzwald, 134 Ohio St.3d 13, 979 N.E.2d 1214, 2012-Ohio-5017, 28 (no standing to invoke the jurisdiction of the common pleas court on the date of filing the complaint). In the underlying case, Cuyahoga County Court of Common Pleas, Case No. 96 CV , the putative plaintiff therein did not prove it held the note on the date it filed the case. The putative plaintiff also did not obtain an assignment of the mortgage until well after the filing of the case. Therefore, a civil action, and the trial court's jurisdiction was never invoked. All judgments therein are null and void and subject to vacation. The above case law is set forth for the general standard related to a definition of a "vexatious litigator," and the case law is based on both Ohio statutes and Supreme Court rules of practice. Since Respondent's motion is based solely on S.Ct. Prac. R. 4.03(B), the standard for granting or denying the motion must come directly from the rule itself: 5

7 If a party habitually, persistently, and without reasonable cause engages in frivolous conduct under division (A) of this rule, the Supreme Court may, sua sponte or on motion by a party, find the party to be a vexatious litigator. If the Supreme Court determines that a party is a vexatious litigator under division (A) of this rule, the court may impose filing restrictions on the party. The restrictions may include prohibiting the party from continuing or instituting legal proceedings in the Supreme Court without first obtaining leave, prohibiting the filing of actions in the Supreme Court without the filing fee or security for costs required by S.Ct.Prac.R and 3.05, or any other restriction the Supreme Court considers just. The Relator has not habitually, persistently, or without reasonable cause, engaged in frivolous conduct under S.Ct. Prac. R. 4.03(A), which provides: If the Supreme Court, sua sponte or on motion by a party, determines that an appeal or other action is frivolous or is prosecuted for delay, harassment, or any other improper purpose, it may impose appropriate sanctions on the person who signed the appeal or action, a represented party, or both. The sanctions may include an award to the opposing party of reasonable expenses, reasonable attorney fees, costs or double costs, or any other sanction the Supreme Court considers just. An appeal or other action shall be considered frivolous if it is not reasonably well-grounded in fact or warranted by existing law or a good-faith argument for the extension, modifi cation, or reversal of existing law. Respondent claims that Relator engaged in "frivolous conduct." Therefore, the opposition will focus on this sole claim of "frivolous conduct," as defined in Ohio law. S.Ct. Prac. R. 4.03(A) defines "frivolous conduct" as "not reasonably well-grounded in fact or warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law." Relator's legal filings cited by Respondent in the vexatious litigator motion are all reasonably well-grounded in fact. The facts presented in each case, and in the affidavit in support of the original action for writ, establish that putative plaintiffs in each case attempted to file Ohio civil actions without proving they held the notes, tax liens, or mortgage assignments necessary to invoke Ohio trial court jurisdiction. 6

8 Relator's legal filings cited by the Respondent in the vexatious litigator motion are all warranted by existing law. In filings set forth in each case, the Relator established by citing to existing Ohio law, that a civil action is not invoked by a putative plaintiff without proof of holding a note, tax lien, or assignment of a mortgage. One specific Ohio Supreme Court case provided existing law supporting all of the Relator's legal filings in Ohio, also cited by this Court in Schwartzwald, supra., at 23, is Kincaid v. Erie Ins. Co., 2010-Ohio , 17 (Ohio 2010) (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). Relator cited the same Ohio Supreme Court case that provided precedent for Schwartzwald, supra. Clearly, the existing Ohio law prior to Schwartzwad, supra., also supported Relator's prior cases and legal filings sufficient to overcome a motion for declaration of a vexatious litigator under S.Ct. Prac. R. 4.03(B), under this Court's recognition and application of existing Ohio law prior to SchwaNtzwald's recent holding. Relator's legal filings cited by the Respondent in the vexatious litigator motion are all warranted by existing law good-faith argument for the extension, modification, or reversal of existing law. Relator's legal filings make, and in the past have made, goodfaith arguments for extending existing Ohio case law and modifying application of existing Ohio case law, and reversing Ohio case law in contradiction to Relator's arguments, specifically related to whether Ohio law requires a putative plaintiff to hold a current and valid note or tax lien, or have an assignment of rights to enforce a mortgage, prior to filing a civil action in Ohio to foreclose a mortgage. It is undeniable the the Ohio 7

9 Supreme Court recently decided this issue in Schwartzwald, supra. This is support that Relator made, and continues to make, good-faith argument that the holding in Schwartzwald have always applied to Relator's legal filings in Ohio. Respondent makes irrelevant citations to void and null civil actions in arguing the doctrine of resjudicata in the foreclosure judgments rendered against this Relator. In any event, in filing the instant original action for a writ against the trial court that Relator claims lacked jurisdiction to render its judgments in foreclosure, Relator continues to make good-faith argument that the holding in Schwartzwald should be extended to the facts and law in Relator's case, Cuyahoga County Court of Common Pleas, Case No. 96 CV , and relate back to the date of filing, such that the civil action is declared null and void, and the judgments issued therein be declared vacated, null, and void. Because Schwartzwald was not decided until October 31, 2012, Relator is entitled to rely upon Schwartzwald as existing law applicable to filing this original action for writ on February 14, WHEREFORE, Relator respectfully requests that this Court deny the Respondent's S.Ct. Prac. R. 4.03(B) motion to declare the Relator a vexatious litigator. Respectfully submitted, Richard Davet P.O. Box Cleveland, Ohio Tel: (216) Relator pro se 8

10 PROOF OF SERVICE A true copy of the foregoing Opposition to the Respondent's Motion to Decl e Relator a "Vexatious Litigator" Pursuant to S.Ct. Prac. R. 4.03(B) was served this day of April, 2013, by regular U.S. Mail, postage prepaid, to: CHARLES E. HANNAN * ( ) Assistant Prosecuting Attorney * Counsel of RecoNd The Justice Center, Courts Tower, 8th Floor 1200 Ontario Street Cleveland, Ohio Counselfor Respondent JAMES S. WERTHEIM ( ) MELANY K. FONTANAZZA ( ) McGlinchey Stafford, PLLC Chagrin Boulevard, Suite 406 Cleveland, Ohio Counselfor Proposed Intervenor NationsBa M a 11 e Corp. Richard Davet Relator pro se 9