Supreme Court of Ohio Clerk of Court - Filed November 10, Case No IN THE SUPREME COURT OF OHIO

Supreme Court of Ohio Clerk of Court - Filed November 10, 2014 - Case No. 2014-1775 IN THE SUPREME COURT OF OHIO LYNDA HICKS, ) CASE NO. 2014-1775 ) Relator, ) ) vs. ) Original Action in Prohibition Arising from ) Cuyahoga County Common Pleas Court JUDGE McCLELLAND ) Case No. CV-11-746293 and ) MAGISTRATE KEVIN AUGUSTYN, ) Respondents. ) MOTION TO DISMISS ON BEHALF OF RESPONDENTS JUDGE McCLELLAND AND MAGISTRATE AUGUSTYN JOHN WOOD, ESQ.* (0059129) TIMOTHY J. McGINTY (0024626) *Counsel of Record Prosecuting Attorney of Cuyahoga County 281 Corning Drive Bratenahl, Ohio 44108 NORA E. GRAHAM * (0079609) Tel: (216) 707-0474 Assistant Prosecuting Attorney kayakmandjd@hotmail.com * Counsel of Record The Justice Center, Courts Tower, 8 th Floor Counsel for Relator 1200 Ontario Street Cleveland, Ohio 44113 Tel: (216) 443-7814/Fax: (216) 443-7602 ngraham@prosecutor.cuyahogacounty.us Counsel for Respondents Judge Robert C. McClelland and Magistrate Kevin C. Augustyn

IN THE SUPREME COURT OF OHIO LYNDA HICKS, ) CASE NO. 2014-1775 ) Relator, ) Original Action in Prohibition Arising from ) Cuyahoga County Common Pleas Court vs. ) Case No. CV-11-746293 ) ) JUDGE McCLELLAND ) MEMORANDUM IN SUPPORT OF and ) RESPONDENTS JUDGE McCLELLAND MAGISTRATE KEVIN AUGUSTYN, ) AND MAGISTRATE AUGUSTYN S Respondents. ) MOTION TO DISMISS This is an original action in prohibition brought by Relator Lynda Hicks (hereinafter Relator ) against Judge Robert C. McClelland and Magistrate Kevin C. Augustyn (hereinafter Respondents ) stemming from an underlying foreclosure action in Cuyahoga County Common Pleas Court. The facts of this case should be familiar to the Court because the writ that is being sought is based on the exact same recycled, erroneous basis as was already denied by the Eighth District Court of Appeals in Wood v. McClelland, 8th Dist. No. 99939, 2013-Ohio-3922, which was just affirmed by this Court in State ex rel. Wood v. McClelland, 140 Ohio St.3d 331, 2014- Ohio-3969. This frivolous action should be dismissed by this Court as it is entirely meritless. Relator s complaint alleges that she is entitled to a writ of prohibition against Respondents because she claims that the Plaintiff in the foreclosure case against her does not have standing, which she erroneously claims means that Respondents do not have jurisdiction over the matter. Relator does not plead any facts that would state a claim for relief in prohibition against Respondents because they are not patently and unambiguously without jurisdiction in the foreclosure case. It is indisputable that a court of common pleas has subject matter jurisdiction over foreclosure cases, and a party s lack of standing would not divest the court of its subject 2

matter jurisdiction. Bank of Am., N.A. v. Kuchta, Slip Op. No. 2014-Ohio-4275. Accordingly, and for the reasons that follow, said Respondents respectfully request that this Court dismiss the Complaint and this cause against them pursuant to S.Ct.Prac.R. 12.04(C) and Civ. R. 12(B)(6). STATEMENT OF FACTS AND PROCEEDINGS I. Background Relator Lynda Hicks has filed this Complaint for a Writ of Prohibition and Alternative Writ of Prohibition seeking to prevent Respondents from exercising jurisdiction over a foreclosure case in which she is the defendant. Her claim is based upon the incorrect premise that her allegation of lack of standing of the Plaintiff, Fannie Mae, in the foreclosure case divests the court of subject jurisdiction over the matter. This erroneous claim was already rejected by the Eighth District Court of Appeals in Wood v. McClelland, 8th Dist. No. 99939, 2013-Ohio- 3922, which was just affirmed by this Court in State ex rel. Wood v. McClelland, 140 Ohio St.3d 331, 2014-Ohio-3969. Although not necessary for determination of the clear legal deficiencies of Relator s complaint which entitle Respondents to dismissal under Civ.R. 12(B)(6), these proceedings are provided as a background for the Court, which demonstrates the truly frivolous nature of Relator s action. In Wood, Relator s attorney attempted to file the exact same request for a writ in his own name, which he claimed to be on behalf of Lynda Hicks. The Eighth District denied the request for a writ of prohibition, holding that Wood lacked standing to bring the case and that even if the case had been commenced in the name of a real party in interest it would still fail because the trial court does not patently and unambiguously lack jurisdiction over plaintiff s claims in the underlying action. Wood, 2013-Ohio-3922, at 9, 16. The Supreme Court affirmed the Eighth District s denial of the writ, and while it found that it was error for the Eighth District to 3

decide the underlying legal issue based on Wood s lack of standing, the Supreme Court did not address the topic and did not reverse or disturb any of the findings made by the Eight District in its decision. State ex rel. Wood, 2014-Ohio-3969, 13-14. follows: The Eighth District set out the facts underlying the complaint for a writ of prohibition as Wood s petition avers that in the underlying action Fannie Mae is without standing to pursue Count 1 of the second amended complaint, and therefore, the trial court patently and unambiguously lacks jurisdiction to exercise jurisdiction over this count. The gravamen of this action centers around Fannie Mae s cause of action to enforce a note and mortgage in the underlying action. Fannie Mae averred it is a person entitled to enforce the note pursuant to R.C. 1303.01 and 1303.38. Wood contends that the note is invalid because it was lost while in the possession of a third party, not Fannie Mae. Hicks filed a motion to dismiss the second amended complaint on this basis, which the trial court denied. Wood then commenced this action. Wood, 2013-Ohio-3922, at 3-4. These allegations are identical to the claim raised by Relator in this matter, and were already expressly rejected by the Eighth District in Wood. The Eighth District held that: A patent and unambiguous lack of jurisdiction means that there is a total lack of jurisdiction of the lower court to act. State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 77, 701 N.E.2d 1002 (1998), criticized by,[fed. Home Loan Mtge Corp. v. Schwartzwald, 134 Ohio St.3d, 2012-Ohio-5017, 979 N.E.2d 1214, 29]. The court of common pleas clearly has subject-matter jurisdiction in the underlying foreclosure case. State ex rel. Wood v. Olsztyn, 8th Dist. Cuyahoga No. 98061, 2012 Ohio 3160, 5, citing Weigand v. Deutsche Bank Natl. Trust, 8th Dist. Cuyahoga No. 97424, 2012 Ohio 933 (denying relief in prohibition to prevent the court of common pleas from proceeding in a foreclosure action). The issue of standing does not attack the court's jurisdiction and can be adequately raised by postjudgment appeal. State ex rel. Smith v. Smith, 75 Ohio St.3d 418, 420, 662 N.E.2d 366 (1996). Standing is a threshold question for the court to decide in order for it to proceed to adjudicate the action. The trial court has discretion to decide whether the [plaintiff] is a proper party to assert the claim. State ex rel. Jones at 77, 701 N.E.2d 1002. There is an adequate remedy at law to challenge an adverse ruling as to a party's alleged lack of standing in a foreclosure action. See, e.g., Schwartzwald; see also CitiMortgage, Inc. v. Patterson, 8th Dist. Cuyahoga No. 98360, 2012 Ohio 4

5894. Accordingly, prohibition is not an appropriate remedy to correct the alleged error. The trial court had jurisdiction to rule on the motion to dismiss that raised the issue of standing, and the trial court's ruling can be adequately challenged by a postjudgment appeal. The trial court does not patently and unambiguously lack jurisdiction over plaintiff's claims in the underlying action. Wood, 2013-Ohio-3922, at 15-16 (emphasis added). Despite this binding precedent, on September 29, 2014, eleven days after this Court affirmed the denial of the writ of prohibition in State ex rel. Wood v. McClelland, 140 Ohio St.3d 331, 2014-Ohio-3969, Relator again filed a complaint for a writ of prohibition against Respondents based on the exact same faulty claim of lack of jurisdiction based on allegations that the plaintiff lacked standing. See John Wood, Esq. v. Judge McClelland, et al., 8th Dist. No. 101986. 1 Relator then voluntarily dismissed that Complaint for a writ of prohibition in the Eighth District on October 7, 2014 and one week later on October 14, 2014 filed the current writ of prohibition action with the Court. Relator has also filed a Notice of Appeal of the trial court s order granting foreclosure on October 19, 2014. See Fannie Mae v. Lynda Hicks, et al., 8th Dist. No. 102079. 2 As is clear from the fact that this exact issue and factual situation has already been decided, there is no legal basis to support the granting of a writ of prohibition in this matter and Relator s Complaint should be dismissed. 1 The repetitive and harassing nature of these actions is shown by the fact that while the body of the complaint in this matter states that the Relator is Lynda Hicks, the caption of the complaint, which was obviously recycled from the prior filing in 2013-Ohio-3922, did not even bother to change the name of the Relator and still lists the Relator as attorney John Wood. 2 In a writ case, a court is not limited to the facts at the time a proceeding is commenced, but should consider facts at the time it determines whether to issue a writ. State ex rel. Westlake v. Corrigan, 112 Ohio St.3d 463, 2007-Ohio-375, 860 N.E.2d 1017, 22 (citing State ex rel. Newton v. Court of Claims, 73 Ohio St.3d 553, 557, 653 N.E.2d 366 (1995)). Additionally, a court may take judicial notice of appropriate matters in determining a Civ.R. 12(B)(6) motion without converting it to a motion for summary judgment. State ex rel. Scott v. Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923, 26 (internal citations omitted). 5

II. Factual Allegations in Relator s Complaint While the preceding background demonstrates the frivolous nature of this action, this Court need only look at the facts alleged on the face of Relator s complaint, as required under Civ.R. 12(B)(6), to conclude that the complaint fails to state a claim for which relief can be granted. Plaintiff s complaint claims that she is seeking a writ to prohibit Respondents from exercising jurisdiction over the Complaint or acting in aid of execution thereof. See Compl., p. 3. The facts alleged by Relator fail to show that she is entitled to a writ of prohibition because she fails to show that Respondents are patently and unambiguously without jurisdiction in the underlying foreclosure matter. The facts alleged also demonstrate that Relator has an adequate remedy by way of appeal. Thus, Relator fails to state a claim for which relief can be granted because she cannot establish the necessary elements for a writ of prohibition. The facts relevant to this action are drawn from the allegations in Relator s Complaint and the Memorandum and Affidavit attached thereto. 3 This action in prohibition stems from a foreclosure case in the Cuyahoga County Common Pleas Court captioned Fannie Mae vs. Lynda L. Hicks, et al., Case No. CV-11-746293, in which Relator is a defendant. See Compl., 1. The case is assigned to Judge Robert C. McClelland s docket and was referred to Magistrate Kevin C. Augustyn, who is the foreclosure magistrate who was assigned to try issues of law and fact in the matter. See Compl., 2, 3. Relator alleges that the Plaintiff in the foreclosure case against her, Fannie Mae, filed a second amended complaint in which in Count 1 it alleges to be a person entitled to enforce the 3 Documents attached to or incorporated in a complaint may be considered part of the complaint for purposes of determining a Civil Rule 12(B)(6) motion to dismiss. See State ex rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 249, 673 N.E.2d 1281, n. 1 (1997). Relator s complaint also references an Exhibit One which purports to be the Second Amended Complaint filed in the foreclosure action, but Relator failed to attach an Exhibit One to the complaint. See Compl., 4, Affidavit of Relator, 4. 6

Note pursuant to Sections 1303.31 and 1303.38 of the Ohio Revised Code. See Compl., 4, 5. The Plaintiff attached a Lost Note Affidavit to its complaint which Relator alleges is not valid. See Compl., 8, p. 4, Memorandum. Relator then alleges that the court could not have jurisdiction over an action on the Note where the Plaintiff had no standing to bring the Count. See Compl., p. 4, Memorandum. Relator also alleges that Count II of the complaint seeks to enforce the Mortgage without the Note and alleges that absent standing to sue on the Note, there can be no action to enforce the mortgage claim that this is established under the U.C.C. See Compl., p. 4. Memorandum. Relator then acknowledges that the court in the foreclosure action has already entered a judgment in the case granting foreclosure. See Compl., p. 4, Memorandum. Relator claims that Absent a Note, Respondents are patently and unambiguously without jurisdiction over the case. See Compl., Rel. Affidavit. Relator also claims that Respondents are patently and unambiguously without jurisdiction to proceed in aid of execution. See Compl., Rel. Affidavit. Relator fails to include in her complaint any allegations as to how the Respondents are allegedly moving in aid of execution, given the fact that a party seeking to enforce a judgment is who proceeds in aid of execution, not a court. This shows that Relator s true intention in this matter is to stall the Plaintiff from proceeding with a foreclosure sale of the property and not grounded in any good faith basis against Respondents. A review of the complaint and documents attached thereto in this matter show that Relator has failed to allege facts that would entitle her to relief in prohibition against Respondents. For the reasons that follow, Respondents respectfully submit that Relator s complaint fails to state a claim upon which relief in prohibition can be granted and should accordingly be dismissed pursuant to S.Ct.Prac.R. 12.04(C) and Civ.R. 12(B)(6). 7

ARGUMENT AND LAW This Court should dismiss Relator s Complaint for a Writ of Prohibition and Alternative Peremptory Writ of Prohibition because Relator can prove no set of facts in support of her claim that would entitle her to the relief sought. Essentially, Relator is seeking a writ of prohibition because she claims that the Plaintiff Fannie Mae in her underlying foreclosure case lacked standing in the action based on filing a lost note affidavit with the complaint. Plaintiff alleges that because she challenges the Plaintiff s standing that this means that Respondents are patently and unambiguously without jurisdiction. However, it is well-settled law that a court of common pleas has subject matter jurisdiction over foreclosure actions. A party s lack of standing does not affect the subject-matter jurisdiction of the court. Kuchta, supra, at paragraph 3 of the syllabus (emphasis added). Relator is merely attempting to collaterally attack the Respondent court s finding that the Plaintiff in the foreclosure action has standing to proceed, however, any alleged errors by the court regarding Plaintiff s standing must be challenged on appeal and not in a writ action. Prohibition will not lie for such purposes, and thus Relator s complaint fails on its face and should be dismissed. Dismissal of Relator s prohibition action under Civ.R. 12(B)(6) is appropriate if, after all factual allegation of the complaint were presumed true and all reasonable inferences were made in his favor, it appeared beyond doubt that he could prove no set of facts entitling him to the requested writ of prohibition. State ex rel. Bell v. Pfeiffer, 131 Ohio St.2d 114, 2012-Ohio- 54, 961 N.E.2d 181, 12. Even presuming all of the factual allegations of Relator s complaint to be true, she has failed to state facts that support a claim for prohibition and her complaint should be dismissed pursuant to S.Ct.Prac.R. 12.04(C) and Civ.R. 12(B)(6). 8

I. REQUIREMENTS FOR ISSUING A WRIT OF PROHIBITION Relator s complaint fails to set forth facts to establish the necessary elements for a writ of prohibition. An action in prohibition fundamentally contests the jurisdiction of the lower tribunal. See State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 73, 701 N.E.2d 1002 (1998) ( A writ of prohibition tests and determines solely and only the subject matter jurisdiction of the lower court. )(quoting State ex rel. Eaton Corp. v. Lancaster, 40 Ohio St.3d 404, 409, 534 N.E.2d 46 (1988)). See also State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 740 N.E.2d 265 (2001) ( Proceedings on a petition for a writ of prohibition test the subject-matter jurisdiction of the lower court. ); State ex rel. Staton v. Common Pleas Court, 5 Ohio St.2d 17, 21, 213 N.E.2d 164 (1965) ( Prohibition tests and determines solely and only the jurisdiction of the inferior tribunal. ). The principles governing prohibition are well-established. Its requisites are (1) the respondent against whom it is sought is about to exercise judicial power, (2) the exercise of such power is unauthorized by law, and (3) there is not adequate remedy at law. State ex rel. Wood v. Olsztyn, 8th Dist. No. 97928, 2012-Ohio-607, 2012 WL 525476, 4 (citing State ex rel Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989)). When considering a request for relief in prohibition, the Court need not conclusively determine the merits of the underlying jurisdictional issue, for its review is limited to whether *** jurisdiction is patently and unambiguously lacking. State ex rel. Shimko v. McMonagle, 92 Ohio St.3d 426, 431, 751 N.E.2d 472 (2001) (internal citations omitted). See also State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, at 12 ( [O]ur duty in prohibition cases is limited to determining whether jurisdiction is patently and unambiguously lacking. ). The writ will not issue to prevent an erroneous judgment, or to serve the purpose of 9

appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction. State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 65, 90 N.E.2d 598 (1950). Neither mandamus nor prohibition will issue if the party seeking extraordinary relief has an adequate remedy in the ordinary course of law. Dzina v. Celebreeze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, 12. Further, [t]he Supreme Court of Ohio has also firmly established that [i]n the absence of a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party contesting that jurisdiction has an adequate remedy by appeal. Wiegand v. Deutsche Bank Nat l Trust, 8th Dist. No. 97424, 2012-Ohio-933, 2012 WL 760624, 3 (quoting State ex rel. Plant v. Cosgrove, 119 Ohio St.3d 264, 2008-Ohio-3838, 893 N.E.2d 485, 5). Prohibition will not lie, if the court had basic statutory jurisdiction. At the very least, the court would have sufficient jurisdiction to determine its own jurisdiction, and appeal would provide an adequate remedy. State ex rel. West v. McDonnell, 8th Dist. No. 99085, 2013-Ohio 1043, 2013 WL 1183347, 7 (citing State ex rel. Pruitt v. Donnelly, 129 Ohio St.3d 498, 2011 Ohio 4203, 954 N.E.2d 117)(emphasis added). Under these well-settled requirements, Relator cannot show that she is entitled to a writ of prohibition in this matter. II. RELATOR FAILS TO STATE A CLAIM FOR A WRIT OF PROHIBITION Applying these requirements to Relator s complaint in this matter shows that she fails to meet the necessary requirements for a writ of prohibition against Respondents. Relator fails to allege any facts showing that Respondents patently and unambiguously lacked jurisdiction in the underlying foreclosure matter. Additionally, Relator has the adequate remedy of appeal and is now attempting to use this action as a substitute for appeal to collaterally attack the judgment against her. Prohibition will not issue as a substitute for appeal. State ex rel. Nalls v. Russo, 10

96 Ohio St.3d 410, 2002-Ohio-4907, 775 N.E.2d 522, 28 (2002). As such, the complaint fails on its face to establish the Relator is entitled to a writ of prohibition and should be dismissed. A. Respondents Do Not Patently and Unambiguously Lack Jurisdiction Relator s complaint fails to state a claim upon which relief can be granted because Respondents do not patently and unambiguously lack jurisdiction in the underlying matter. It is well-settled that the court of common pleas clearly has subject-matter jurisdiction over foreclosure actions. State ex rel. Wood v. Olsztyn, supra, at 5. As the judicial officers assigned to the case, Respondents have the inherent and statutory authority to preside over the underlying action in foreclosure. Wiegand, supra, at 4. In Wiegand, the Eighth District rejected a relator s claim that a common pleas court judge lacked jurisdiction in a foreclosure matter and granted the respondent judge s motion for summary judgment, holding that: The Cuyahoga County Court of Common Pleas is a court of general jurisdiction and possesses original jurisdiction in all civil cases in which the sum or matter in dispute exceeds the exclusive jurisdiction of county court or municipal courts. R.C. 2305.01.... Clearly, the Cuyahoga County Court of Common Pleas and Judge Kathleen Sutula had jurisdiction over the complaint for foreclosure and possessed the inherent and statutory authority to enter judgment in the underlying case. Absent a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction. Id. at 4 (emphasis added). Moreover, it is also well-settled law that a trial court retains jurisdiction over proceedings in aid of execution of its judgments, even while those judgments are on appeal. Horvath v. Packo, 2013-Ohio-56, 985 N.E.2d 966, 16 (6th Dist.2013)(citing State ex rel Klein v. Chorpening, 6 Ohio St.3d 3, 4, 450 N.E.2d 1161 (1983), R.C. 2505.09 ( [A]n appeal does not operate as a stay of execution until a stay of execution has been obtained * * * and a supersedeas bond is executed * * * )). Until and unless a supersedeas bond is posted the trial court retains jurisdiction over its judgments as well as proceedings in aid of the same. State ex rel Klein, 11

supra, at 4 (denying writ of prohibition seeking to prevent post-judgment proceedings in aid of execution because the court retained jurisdiction and prohibition could not be used as a substitute for appeal). In this matter, there is absolutely no factual or legal basis to support Relator s assertion that Respondents patently and unambiguously lack jurisdiction in the foreclosure matter. It is well-settled that the common pleas court has subject-matter jurisdiction over foreclosure cases. Thus, there is no doubt that Respondents in this matter have jurisdiction over the underlying foreclosure case in this matter. Moreover, Relator fails to allege that she has sought a stay of execution of judgment in the matter or posted a supersedeas bond, therefore the trial court retains jurisdiction over proceedings in aid of execution. 4 Relator incorrectly claims that Respondents are patently and unambiguously without jurisdiction because she believes that Fannie Mae, the plaintiff in the underlying matter, does not have standing to pursue its case against her. This misguided view has been rejected under the nearly identical facts of State ex rel. Davet v. Sutula, 8th Dist. No. 96548, 2011-Ohio-2803, 2011 WL 2409641. In Davet, the relator sought a writ of prohibition to prevent the respondent judge from proceeding in a case because he claimed that the judge continuously lacked jurisdiction over Case No. CV-304224 because plaintiff Nationsbanc was not the owner or assignee with right of ownership when it filed Case No. CV-304224. Id. at 1. The court denied the writ, stating: Davet premises his entire argument on the assumption that a trial court lacks jurisdiction to hear a foreclosure action if the plaintiff lacks standing because it is 4 Relator erroneously claims that Respondents themselves are moving in aid of execution and acting in aid of execution. See Compl., p. 3, Memorandum, p. 5. However, a court does not move or act or proceed in aid of execution, the party that is seeking to enforce a court s judgment does. The Respondent court, however, clearly retains jurisdiction over proceedings in which the Plaintiff is proceeding in execution absent a stay of execution and posting of bond. 12

not the owner of the mortgage at the time of filing the complaint. Davet would have this court conclude that respondent patently and unambiguously lacked jurisdiction because Nationsbanc lacked standing to file Case No. CV 304224. As this court observed in CitiMortgage, however, the question of whether a foreclosure plaintiff's lack of standing is jurisdictional is not settled. In fact, this court has issued opinions in 2010 and 2011 reaching differing conclusions. See CitiMortgage, supra. In this action, therefore, we cannot conclude that respondent patently and unambiguously lacked jurisdiction over Case No. CV 304224. Rather, Davet had an adequate remedy in the ordinary course of the law by way of appeal and relief through an original action is inappropriate. A trial court's decision on the issue of standing is properly challenged in a postjudgment appeal rather than via extraordinary writ. State ex rel. Smith v. Smith [ (1996) ], 75 Ohio St.3d [418,] 420, 662 N.E.2d [366,] 369; State ex rel. LTV Steel [ (1992) ], 64 Ohio St.3d [245,] 251, 594 N.E.2d [616,] 621. State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St.3d 70, 77, 701, 701 N.E.2d 1002, 1998 Ohio 275, N.E.2d 1002, 1008. Because Davet had an adequate remedy by way of appeal, we must deny his request for relief in prohibition. Id. at 8-9 (emphasis added). The Ohio Supreme Court affirmed the Eighth District s denial of the writ, holding: The court of appeals did not need to address the merits of Davet s jurisdictional claim and it did not because its jurisdiction in the writ case was limited to determining whether jurisdiction is patently and unambiguously lacking. State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, 12. State ex rel. Davet v. Sutula, 131 Ohio St.3d 220, 2012-Ohio-759, 963 N.E.2d 811, 3. Thus, Relator s claim that a party s alleged lack of standing makes a court patently and unambiguously lack jurisdiction is without merit. A court has jurisdiction to determine the issue of standing and any challenges regarding the court s ruling are properly challenged by appeal not by a writ of prohibition. Despite Relator s erroneous claims, under Ohio law a party s alleged lack of standing does not affect a court s jurisdiction to hear and decide a case: The subject matter jurisdiction of a court is a court's power to hear and decide a case upon its merits. To be justiciable, a controversy must be grounded on a present dispute. And [t]o have standing, a party must have a personal stake in 13

the outcome of a legal controversy with an adversary. A lack of standing does not deprive a court of subject matter jurisdiction. Deutsche Bank Nat l Trust Co. v. Whiteman, 10th Dist. No. 12AP-536, 2013-Ohio-1636, 2013 WL 1749665, 27 (internal citations omitted) (emphasis added). The Ohio Supreme Court in Bank of America, N.A. v. Kuchta, supra, has just recently reaffirmed this long-standing rule that a lack of standing does not deprive a court of subject matter jurisdiction. In the syllabus of Kuchta, the Court announced that: 2. Lack of standing is an issue that is cognizable on appeal, and therefore it cannot be used to collaterally attack a judgment in foreclosure. 3. Although standing is required in order to invoke the jurisdiction of the court of common pleas over a particular action, lack of standing does not affect the subject-matter jurisdiction of the court. Kuchta, supra, at paragraphs 2 and 3 of the syllabus (emphasis added). The Court expressly held that a court of common pleas that has subject-matter jurisdiction over an action does not lose that jurisdiction merely because a party to the action lacks standing. Id. at 17. The Court reiterated the long-held principle that courts of common pleas have subjectmatter jurisdiction over foreclosure cases: [T]his case involves a constitutionally created common pleas court. Ohio's common pleas courts are endowed with original jurisdiction over all justiciable matters * * * as may be provided by law. Article IV, Section 4(B), Ohio Constitution. Jurisdiction has been provided by law in R.C. 2305.01, which states that courts of common pleas have original jurisdiction in all civil cases in which the sum or matter in dispute exceeds the exclusive original jurisdiction of county courts. This court has long held that the court of common pleas is a court of general jurisdiction, with subject-matter jurisdiction that extends to all matters at law and in equity that are not denied to it. Saxton v. Seiberling, 48 Ohio St. 554, 558 559, 29 N.E. 179 (1891). We have also long held that actions in foreclosure are within the subject-matter jurisdiction of a court of common pleas. Robinson v. Williams, 62 Ohio St. 401, 408, 57 N.E. 55 (1900); see generally Winemiller v. Laughlin, 51 Ohio St. 421, 38 N.E. 111 (1894). The Medina County Court of Common Pleas therefore has subject-matter jurisdiction over actions in foreclosure. Id. at 20 (emphasis added). 14

Moreover, the Court rejected the idea that its holding in Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, means that a lack of standing invalidates a court s subject matter jurisdiction. Id. at 21. The Court stated that: A determination of standing necessarily looks to the rights of the individual parties to bring the action, as they must assert a personal stake in the outcome of the action in order to establish standing. Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, 27. Lack of standing is certainly a fundamental flaw that would require a court to dismiss the action, Schwartzwald at 40, and any judgment on the merits would be subject to reversal on appeal. But a particular party's standing, or lack thereof, does not affect the subject-matter jurisdiction of the court in which the party is attempting to obtain relief. Tubbs Jones at 77, 701 N.E.2d 1002. Accordingly, Bank of America's alleged lack of standing to initiate a foreclosure action against the Kuchtas would have no effect on the subject-matter jurisdiction of the Medina County Court of Common Pleas over the foreclosure action. Kuchta, supra, at 23 (emphasis added). This is identical to the claim being made by Relator in this matter, and it has been rejected by this Court. Relator s entire basis for seeking a writ of prohibition in this matter is that she claims that the plaintiff, Fannie Mae, in the foreclosure case against her does not have standing because she believes the lost note affidavit attached to its complaint is invalid. Relator claims that Fannie Mae does not have standing and that this means the Respondents lack jurisdiction over the case. See Compl. 13-14, Memorandum, p. 4. However, this Court has rejects this idea because inquiry into a party s ability to invoke a court s jurisdiction speaks to jurisdiction over a particular case, not subject-matter jurisdiction. Id. at 22. The decision by this Court in Kutcha is not a new rule of law and merely reaffirms this Court s repeated holdings that a lack of standing does not deprive a court of subject-matter jurisdiction. See, e.g., State ex rel. Jones v. Suster, supra, at 77 ( Lack of standing challenges the capacity of a party to bring an action, not the subject matter jurisdiction of the court. ); State ex rel. Smith v. Smith, 75 Ohio St.3d 418, 420, 662 N.E.2d 366 (1996)( Issues of res judicata and 15

standing do not attack a court's jurisdiction and can be adequately raised by postjudgment appeal. ); State ex rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d 245, 251, 594 N.E.2d 616 (1992)(holding that issues regarding standing and res judicata are appealable as error and do not attack respondents appellate jurisdiction. ); State ex rel. Davet v. Sutula, 131 Ohio St.3d 220, 2012-Ohio-759, 963 N.E.2d 811, 3. Therefore, there is no basis for Relator to claim that Respondents patently and unambiguously lack jurisdiction in the underlying foreclosure case. Under this well-established precedent, it is clear that Respondents do not patently and unambiguously lack jurisdiction in the underlying matter because courts of common pleas indisputably have subject-matter jurisdiction over foreclosure actions and a party s lack of standing does not affect the subject-matter jurisdiction of the court. Relator has an adequate remedy at law by way of appeal to challenge Fannie Mae s alleged lack of standing and she cannot use this action as a substitute for appeal. Therefore, Relator has failed to claim for a writ of prohibition and her complaint should be dismissed. B. Relator Has an Adequate Remedy at Law by Way of Appeal, and is Using the Prohibition Action as a Substitute for Appeal In addition to Relator s complaint failing because Respondents are not patently and unambiguously without jurisdiction in the underlying matter, Relator s complaint also fails because she has an adequate remedy at law by way of appeal. The blatant flaw in Relator s Complaint and Memorandum is her erroneous claim that Fannie Mae lacks standing, and that this means that the trial court lacks jurisdiction over the matter. Issues regarding Fannie Mae s standing must be raised on appeal by Relator and not through a collateral attack against Respondents in this writ action, which she is attempting to use as a substitute for appeal. Relator currently has an appeal of the foreclosure case pending at the Eighth District Court of appeals 16

where her claims regarding standing may properly be raised and thus this action should be dismissed. See Fannie Mae v. Lynda Hicks, et al., 8th Dist. No. 102079. Relator has claimed in the Memorandum attached to her Complaint, without any citation to a legal authority in support of the claim, that The Court could not have jurisdiction over an action on the Note where the Plaintiff had no standing to bring the Count. Standing is jurisdictional. See Memorandum, p. 4. However, this is an incorrect statement of law, because the issue of standing does not attack the court s jurisdiction and can be adequately raised by postjudgment appeal. State ex rel. Smith v. Smith, 75 Ohio St.3d 418, 420, 662 N.E.2d 366 (1996). Thus, as addressed above, a plaintiff s alleged lack of standing would not divest a trial court of the jurisdiction to hear and determine the issue, and its rulings are properly challenged by way of appeal and not through a prohibition action. Relator cannot use this action to collaterally attack the foreclosure judgment against her. Kuchta, supra, at paragraph 2 of the syllabus ( [l]ack of standing is an issue that is cognizable on appeal, and therefore it cannot be used to collaterally attack a judgment in foreclosure. ) Relator seems not to comprehend the distinction between a court s jurisdiction to hear and decide matters and a party s invocation of the court s jurisdiction. A party s failure to properly invoke a court s jurisdiction does not mean that a court loses its subject-matter jurisdiction over the matter and the court s determination regarding a party s standing must be challenged by way of appeal and not by writ of prohibition. The writ will not issue to prevent an erroneous judgment, or to serve the purpose of appeal, or to correct mistakes of the lower court in deciding questions within its jurisdiction. See Sparto, supra, at 65. Moreover, Relator s reliance on Fed. Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214 to claim that the trial court patently and 17

unambiguously lacked jurisdiction is completely misplaced. See Memorandum, p. 4 ( This implicates Scwartzwald, but much else. ) The Court in Schwartzwald reversed, on appeal, a court s granting of summary judgment for a plaintiff finding that the plaintiff lacked standing. This has no relevance to the analysis of a court s jurisdiction in a prohibition action. The Court never held that the trial court patently and unambiguously lacked jurisdiction over the matter because of the plaintiff s lack of standing, rather it held that the plaintiff had not invoked the court s jurisdiction. Id. at 42. If anything, Schwartzwald only emphasizes that Appellant has an adequate remedy by way of appeal to challenge the trial court s ruling regarding standing and that the trial court had jurisdiction over the matter. This Court in Kuchta, recognized that Schwartzwald involved a direct appeal not a collateral attack, and rejected the claim that use of the term jurisdiction in Schwartzwald necessarily connoted subject-matter jurisdiction which it held was an incorrect inference. Kuchta, supra, at 21. Relator is simply unhappy that the trial court has entered a judgment against her in the underlying matter and is attempting to use this prohibition action as a substitute for appeal and to prevent proceedings in aid of execution on the judgment. However, it is firmly established that a prohibition action cannot be used as a substitute for appeal. State ex rel. Tate v. Callahan, 8th Dist. No. 85615, 2005-Ohio-1202, 2005 WL 628520, 4. Relator has an adequate remedy in the ordinary course of law, e.g., appeal, for review of any alleged jurisdictional defects. See Weigand, supra, at 6. There is no doubt that Respondents have subject-matter jurisdiction over the foreclosure case. See Kuchta, supra, 20; State ex rel. Wood v. Olsztyn, supra, at 5. And a party s lack of standing does not affect this subject-matter jurisdiction. Kuchta, supra, 23. Moreover, [u]ntil and unless a supersedeas bond is posted the trial court retains jurisdiction over 18

its judgments as well as proceedings in aid of the same. State ex rel Klein, supra, at 4. Relator s complaint does not claim that any prejudicial conditions have been attached that would even arguably render inadequate the ordinary remedy of appeal. Nor does Relator allege that she has obtained a stay of execution or posted a supersedeas bond in the trial court. Therefore, the Respondent court retains jurisdiction over its judgment and proceedings in aid of execution and Relator has an adequate remedy by way of appeal to challenge the judgment that was entered against her in the underlying matter. Her use of this writ action in an attempt to improperly stall execution of the judgment should not be tolerated by this Court. Relator has failed to establish the elements necessary to entitle her to a writ of prohibition. A relator is required to establish all three elements of a writ of prohibition: that the respondent against whom it is sought is about to exercise judicial power, the exercise of such power is unauthorized by law, and there is not adequate remedy at law. State ex rel. Wood v. Olsztyn, supra, at 4. Relator in this matter has failed to show that Appellees jurisdiction in this matter is unauthorized by law and that there is not an adequate remedy at law. Respondents did not patently and unambiguously lack jurisdiction in the matter below, and Relator has an adequate remedy by appeal to contest the court s determination of its own jurisdiction. Prohibition will not lie, if the court had basic statutory jurisdiction. At the very least, the court would have sufficient jurisdiction to determine its own jurisdiction, and appeal would provide an adequate remedy. See West, supra, at 7. Therefore, Relator can prove no set of facts entitling her to the requested writ of prohibition and alternative writ of prohibition and Respondents Motion to Dismiss should be granted. 19

CONCLUSION Relator has failed to state a claim upon which relief can be granted in prohibition. Therefore, Respondents Judge Robert C. McClelland and Magistrate Kevin C. Augustyn respectfully request that this Court dismiss Relator s Complaint for a Writ of Prohibition and Alternative Writ of Prohibition against them and this cause pursuant to S.Ct.Prac.R. 12.04(C) and Civ. R. 12(B)(6). Respectfully submitted, TIMOTHY J. McGINTY (0024626) Prosecuting Attorney of Cuyahoga County By: /s/ Nora E. Graham NORA E. GRAHAM * (0079609) Assistant Prosecuting Attorney * Counsel of Record The Justice Center, Courts Tower, 8 th Floor 1200 Ontario Street Cleveland, Ohio 44113 Tel: (216) 443-7814/Fax: (216) 443-7602 ngraham@prosecutor.cuyahogacounty.us Counsel for Respondents Judge Robert C. McClelland and Magistrate Kevin C. Augustyn 20

PROOF OF SERVICE A true copy of the foregoing Motion to Dismiss on behalf of Respondents Judge McClelland and Magistrate Augustyn was served this 10th day of November, 2014 by regular U.S. Mail, postage prepaid, upon: JOHN WOOD, ESQ. 281 Corning Drive Bratenahl, Ohio 44108 Tel: (216) 707-0474 kayakmanjd@hotmail.com Counsel for Relator /s/ Nora E. Graham NORA E. GRAHAM * (0079609) Assistant Prosecuting Attorney * Counsel of Record 21