IN THE SUPREME COURT OF OHIO Mark R. Wellman, et al., 08-0903 Appellants, On Appeal from the Pickaway County Court of Appeals, v. Fourth Appellate District National City Mortgage Company, Court of Appeals Case No. 2008CA02 Appellee. MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS, MARK R. WELLMAN AND GINA S. WELLMAN Roy H. Huffer (0008650) (COUNSEL OF RECORD) Huffer and Huffer Co., L.P.A. 130 West Franklin Street P.O. Box 464 Circleville, Ohio 43113 (740) 474-2179 Fax No. (740) 477-1778 r1huffer&ahoo.com COUNSEL FOR APPELLANTS, MARK R. WELLMAN AND GINA S. WELLMAN Thomas R. Merry (0042429) (COUNSEL OF RECORD) Beth M. Miller (0072747) Barren & Merry Co., L.P.A. 110 Polaris Parkway, Suite 302 Westerville, Ohio 43082 (614) 776-1000 Fax No. (614) 865-3396 COUNSEL FOR APPELLEE, NATIONAL CITY MORTGAGE COMPANY I IF (1l ^!L'^ hiay 0 8?t"'.3 GLERKOFCOURT surne cuu^ ^. ^NH30
TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION................................................ 1 STATEMENT OF THE CASE AND FACTS........................................ 1 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW........................... 2 Page Proposition of Law No. I: All courts are required to follow stare decisis if the case being reviewed is on "all fours" with the legal precedence, and therefore, the trial court's entry of January 22, 2008, is a final appealable order....................... 2 Proposition of Law No. II: A person seeking to exercise ownership and dominion over property, or a property right, must be the true, actual owner thereof in order to have ajusticiable interest to claim any rights in subject property by foreclosure or any other remedy.... 4 Proposition of Law No. III: An attorney who signs a complaint for foreclosure certifies that the facts contained in the complaint are true, within the boundaries of human knowledge, pursuant to Civ. R. 11, and specifically, that the mortgagee is the actual owner of said mortgage.............................................. 5 CONCLUSION... 5 PROOF OF SERVICE... 7 APPENDIX Annx. Page Decision and Judgment Entry of the Pickaway County Court of Appeals (Apri11,2008)....1 i
EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION This case presents important issues for our civilization in Ohio: (1) whether any court is bound by legal precedence (stare decisis), or to what extent; (2) whether a "hodge podge" of personal opinions by judges meets the constitutional test of both the Equal Protection and Due Process clauses; and (3) whether a party must own the property, or a property right, in order to exert dominion over same as against everyone else, especially involving enforcement of foreclosure of a mortgage. STATEMENT OF THE CASE AND FACTS This is a follow-up issue from the original foreclosure case of National City Mortgage Company, Plaintiff, v. Wellmans, et al., Pickaway County Case No. 2002CI067 and the Fourth District Court of Appeals' Case No.06CA029, from which a Memorandum to accept jurisdiciton was filed with the Supreme Court of Ohio on March 3, 2008, bearing Case No. 2008-0469. The current issue is that the Appellee did not own the mortgage and note when it filed foreclosure on same on March 12, 2002. The Appellants-Mortgagors filed for dismissal of the foreclosure suit based on that fact. The trial court (after the Court of Appeals sustained him in Case No. 02-CA-029) filed his Decision and Entry denying the Motion to Dismiss in which he simply stated, "Upon review, Defendants' motion is denied. Defendant is not entitled to the relief requested since this matter has concluded to judgment." This is this trial court's typical "shot-gun" decision, failing to address the issues involved before him. The non-ownership of the mortgage was discovered sometime in August or September of -1-
2007, after the Appellee-Bank had recorded an Assignment of the mortgage back to itself on July 20, 2007, with an "effective" date inserted as of March 5, 2002, being one (1) week prior to the filing of their foreclosure suit. Appellants appealed said Decision and Entry of the trial court filed January 22, 2008. The Court of Appeals upheld the trial court by its Decision and Entry filed April 1, 2008, copy provided as required. The Fourth District Court of Appeals ignored the authorities cited by appellants. It is interesting to note that the non-ownership of the subject matter (note and mortgage) was never denied or disputed by Appellee, as the record patently shows. This raises serious questions about knowingly misrepresenting ownership of the subject matter (note and mortgage) to both appellants and the courts, pursuant to Civ. R. 11 by attorneys, Mr. Kenneth Johnson, and Mr. Thomas Merry. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. I: All courts are required to follow stare decisis if the case being reviewed is on "all fours" with the legal precedence, and therefore, the trial court's entry of January 22, 2008, is a final appealable order. Interestingly, Appellee did not record its Assignment of the mortgage back to itself until July 20, 2007, with an "effective" date of March 5, 2002. This conduct is not authorized by the Statutes of Conveyances (which must be strictly followed), so the Appellee does not own the mortgage yet today. The result of this is that the entire proceeding in the Trial Court is void. The foreclosure decree is invalid. See, O.R.C. 5301.23, 5301.25(A), 5301.31, and 5303.32. Foreclosures in interest in real estate are governed by a strict statutory scheme, which also requires interest in land, including assignments, to be recorded. Ohio law also dictates certain -2-
procedural requirements for regulating foreclosures to assure full protection of due process before a home owner is removed from his home. See O.R.C. 323.28, 323.47, 5303.10 et seq., 5301.24, 5721.18 and 5721.19. Accordingly, if a Plaintiff cannot establish that it holds a claimed interest in real estate, it lacks standing to sue on that alleged interest. This lack of standing arises from a strict statutory scheme and, therefore, it is jurisdictional just as the lack of standing was in the following cases, to wit: New Boston Coke Corp. v. Tyler. (1987), 32 Ohio St:3d 16; and Buckeye Foods v. Cuvahoga County Board of Revision, (1997), 78 Ohio St.3d 459. It is axiomatic that one can submit to jurisdiction of the person, but not of the subject matter! Since jurisdiction over subject matter can never be waived, the Trial Court's Entry filed January 22, 2008, denying Appellants' Motion to Dismiss is a final appealable order, considering the original judgment was entered by the Trial Court's Entry on October 31, 2006. See Holm v. Smilowitz 83 Ohio App. 3d 757; 615 N.E.2d 1047; 1992 Ohio App. LEXIS 5998. Looking at O.R.C. 2505.02(A)(1), we find "Substantial right" includes any rights under the Constitutions, Statutes, Common Law, or a rule of procedure which one is entitled to either enforce or be protected by. Examining subsection (B)(2), we find it covers any order affecting a substantial right (A)(1) made in a special proceeding (foreclosure) or upon a summary application (Motion to Dismiss) in an action after judgment. These citations from 2505.02 entitled Final orders give ample support to the proposition that the order being appealed is a final appealable order. Since jurisdiction over the subject matter can never be waived, there is no time limit on -3-
when that issue (problem) can be considered waived. The entire foreclosure proceeding and the judgment for the order of sale is a nullity. The Trial Court never acquired jurisdiction to grant judgment and issue a decree of foreclosure because Appellee never owned the Note and Mortgage, and, therefore, never was the real party in interest at the time it filed the foreclosure action. This is basic Constitutional law. Proposition of Law No. II: A person seeking to exercise ownership and dominion over property, or a property right, must be the true, actual owner thereof in order to have a justiciable interest to claim any rights in subject property by foreclosure or any other remedy. The Trial Court lacked jurisdiction over Appellee's claim because Appellee had not established the existence of a controversy between Appellee and Appellants. The Ohio Constitution provides in part, that:..."the courts of common pleas and divisions thereof shall have such original jurisdiction over all justiciable matters... as may be provided by law." See Ohio Const. Art. IV, Sections 4(B). emphasis added. Therefore, the "justiciable matter" is a prerequisite to a court acquiring jurisdiction. Since Appellee did not own the Note and Mortgage and was, therefore, not entitled to sue Appellants on it, said test was not met and the Pickaway County Common Pleas Court never acquired jurisdiction to hear the matter. Importantly, since jurisdiction addresses a court's power to hear and decide a case, the proper remedy when a court lacks jurisdiction is to dismiss the Complaint, Civ. R. 12(H)(3). The issue of jurisdiction cannot be waived, and, therefore, may be raised anytime, including after the pleadings are joined, tried and even on appeal. See Cleveland Elec. Illum. Co. v. Lake Countv -4-
Board of Revision, 96 Ohio St.3d 165, 2002-Ohio-4033, 16; H.R. Ontions, Inc. v. Zaino, 100 Ohio St. 3d 373, 2004-Ohio-1, 8 (though raised late, an objection based on a jurisdictional defect was "preserved because a party cannot waive subject-matter jurisdiction, regardless of procedural deficiencies"). Relatedly, courts may address the issue of jurisdiction sua sponte. Rinehart v. Dillard, (10"' Dist.), 2007-Ohio-4310, 17. For additional authority, see: Bank One. NA, Plaintiff-Appellee v. Karl A. Dennnler, Defendant-Appellant; 2007 OHIO 7167; 2007 Ohio App. LEXIS 6269 (December 31, 2007) and from the Fourth District Court of Appeals Third National Bank of Circleville, Appellee, v. Speakman et al: Lemaster, Appellant, 18 Ohio St. 3d 119; N.E. 2d 411; 1985 Ohio LEXIS 507; 18 Ohio B. Rep. 150 (July 3, 1985). Again, the Fourth District Court of Appeals ignored these authorities. Proposition of Law No. III: An attorney who signs a complaint for foreclosure certifies that the facts contained in the complaint are true, within the boundaries of human knowledge, pursuant to Civ. R. 11, and specifically, that the mortgagee is the actual owner of said mortgage. See Civ. R. 11, which is self-explanatory. Appellants believe if they receive their day in court, that they can prove said attorneys knew that Appellee did not own the mortgage and note when the foreclosure complaint was filed. CONCLUSION The Fourth District Court of Appeals did the same thing it has been doing, crafting an opinion to up-hold Judge Knece, even if it means ignoring relevant authorities. Ignoring stare decisis is not good public policy, especially if authority exists within the same district court of appeals. It also violates the Equal Protection and Due Process clauses of -5-
the Constitutions. The only justification not to follow legal precedence would be if the case being considered can be distinguished substantiallv! We practitioners of the law inform our clients of the prevailing law, but then our system allows courts to ignore legal precedence in far too many cases. Is it any wonder the public has such a dismal evaluation of our profession? This kind of conduct mimics the politicians and we all know how little the public thinks of politicians. When a mortgagee files a foreclosure without being the true and actual owner, it has committed fraud upon not only the mortgagor, but the court. The mortgagor and court have every right to rely upon Civ. R. 11. If the foreclosure proceeds to sale, such action creates a cloud upon the title to subject real estate and such action is void! To hold otherwise, would do great damage to the well-being of our society, which is based on the free enterprise system. The fact that Appellant did not own the mortgage at the time it conunenced foreclosure (and still doesn't own the mortgage because of the defective assignment), which violates our basic law and constitutional rights, is more than sufficient for this Honorable Court to correct this bad situation. For the reasons discussed above, this case involves matters of public or great general interest and constitutional questions. The Appellants request this court grant jurisdiction and allow this case with its important issues presented to be reviewed on the merits, along with Ohio -6-
Supreme Court Case No. 2008-0469. Respectfully submitted, Roy H. Huffer, Counsel of Record Roy H. H COUNSEL FOR APPELLANTS, MARK R. WELLMAN AND GINA S. WELLMAN Certificate of Service I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinary U.S. mail to counsel for Appellees, Thomas R. Merry and Beth M. Miller, I10 Polaris Parkway, Suite 302, Westerville, Ohio 43082 on May 7 2008. COUNSEL FOR APPELLANTS, MARK R. WELLMAN AND GINA S. WELLMAN
APPENDIX
P11..Pf3-CT. OF,'',:PPEA!_r IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT 2106 Ap;; -^ ^IJ 12: 50 PICKAWAY COUNTY 0:a ChEi,i, '?;^TS National City Mortgage Company, Case W&MCA2, '. Plaintiff-Appellee, V. DECISION AND JUDGMENT ENTRY Mark R. Wellman, et al., Defenda nts-appella nts. On February 22, 2008, we ordered appellants, Mark R. and Gina S. Wellman, to file a memorandum addressing whether the judgment they were appealing is a final appealable order. Appellants have filed a response in which they argue that the trial court's judgment is void because appellee, National City Mortgage Company, did not own the mortgage at the time it filed the foreclosure complaint in March 2002, depriving the trial court of jurisdiction to decide the case. They further argue that even though the trial court granted appellee's motion to enforce their settlement agreement and entered a decree of foreclosure in October 2006, a party can raise a court's jurisdiction at any time. Appellee, however, maintains that whether or not the trial court had jurisdiction in this case, a point it does not concede, a party cannot challenge the absence of jurisdiction in an appeal from a judgment that is not otherwise final and appealable. Section 3(B)(2), Article IV of the Ohio Constitution provides that courts of appeals have "such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district ***." "An order of a court is a final appealable order only if 1
Pickaway App. No. 08CA2 (2) the requirements of both R.C. 2505.02 and, if applicable, Civ.R. 54(B), are met." State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 776 N.E.2d 101, 2002-Ohio-5315, at 5. If an order is not final and appealable, a reviewing court has no jurisdiction to consider the matter and has no choice but to dismiss the appeal. The Bell Drilling & Producing Co. v. Kilbarger Constr., Inc. (June 26, 1997), Hocking App. No. 96CA23, 1997 WL 361025, at 2. In In re Fennell, Athens App. No. 02CA19, 2002-Ohio-5233, at 11, we held that the denial of a motion to dismiss generally is not a final appealable order. See, also, Holm v. Smilowitz (1992), 83 Ohio App.3d 757, 766, fn. 7. More specific to this case, "[a] party claiming that a trial court lacked jurisdiction can raise that same argument in an appeal from an adverse final judgment." Copenhaver v. Copenhaver, Athens App. No. 05CA16, 2005-Ohio-4322 (holding that the denial of a motion to dismiss in a divorce action does not affect a substantial right and is not a final appealable order.) Therefore, the absence of an immediate appeal does not foreclose appropriate relief. See Lonigro v. Lonigro (1989), 55 Ohio App.3d 30. Furthermore, we note that appellants already have filed a direct appeal from the trial court's judgment entering a decree of foreclosure and that we affirmed the trial court's judgment. Natl. City Mtge. Co. v. We!lman, Pickaway App. No. 06CA29, 2008- Ohio-2007. However, we have found no authority permitting a party to file a motion to dismiss once a court has rendered a decision on the merits of a complaint. Without a final appealable order we do not have jurisdiction to consider this matter. APPEAL DISMISSED. COSTS TO APPELLANTS. IT IS SO ORDERED. 2
Pickaway App. No. 08CA2 ANY PENDING MOTIONS ARE DENIED AS MOO Kline, J., McFarland, J.: Concur. 3