[Cite as BAC Home Loans Servicing, LP v. Mapp, 2013-Ohio-2968.]



                                  IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                         BUTLER COUNTY




BAC HOME LOANS SERVICING, L.P.,                     :
                                                                  CASE NO. CA2013-01-001
       Plaintiff-Appellee,                          :
                                                                       OPINION
                                                    :                   7/8/2013
   - vs -
                                                    :

CURTIS MAPP,                                        :

       Defendant-Appellant.                         :



            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              Case No. CV2010-09-4025



Laurito & Laurito, LLC, Colette S. Carr, 7550 Paragon Road, Dayton, Ohio 45459, for
plaintiff-appellee

Law Office of Joseph C. Lucas, LLC, Tyler W. Kahler, P.O. Box 36736, Canton, Ohio 44735,
for defendant-appellant



       M. POWELL, J.

       {¶ 1} Defendant-appellant, Curtis Mapp, appeals a decision of the Butler County

Court of Common Pleas denying his Civ.R. 60(B) motion for relief from judgment.

       {¶ 2} In July 2008, Mapp executed a promissory note in favor of Countrywide Bank,

SFB, in the principal amount of $284,200. The note was secured by a mortgage which

designated Mapp as mortgagor, and Mortgage Electronic Registration Systems, Inc. (MERS)
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as mortgagee. MERS was identified in the mortgage as a corporation acting "solely as

nominee for [Countrywide] * * * and [Countrywide's] successors and assigns."                               The

promissory note does not mention MERS. On May 28, 2010, MERS, "acting solely as

nominee for Countrywide," assigned the mortgage and promissory note to plaintiff-appellee,

BAC Home Loans Servicing, L.P., f.k.a. Countrywide Home Loans Servicing, L.P. (BAC).

Effective July 1, 2011, BAC was merged into Bank of America, N.A.1

        {¶ 3} On September 28, 2010, BAC filed a complaint against Mapp and Jane Doe,

the unknown spouse of Mapp, demanding judgment on the note in the amount of

$276,924.21 plus late fees and interest, and seeking foreclosure of the property. Ten days

later, Mapp filed a letter in the trial court which the trial court construed as an answer to

BAC's complaint. On September 28, 2011, BAC moved for default judgment against Doe

and for summary judgment against Mapp. Neither Mapp nor Doe responded to BAC's

motions. On November 2, 2011, the trial court granted BAC's motions for default judgment

and summary judgment, entered a judgment in favor of BAC in the amount of $276,924.21

plus interest, and ordered the sale of the property. Mapp's subsequent pro se motion to

dismiss was overruled by the trial court.

        {¶ 4} On October 25, 2012, Mapp filed a motion for relief from judgment pursuant to

Civ.R. 60(B)(1), (3), and (5). Mapp asserted three meritorious defenses: (1) he was not

properly credited with some of the mortgage payments he made; (2) documents attached to

BAC's complaint were forged, altered, or tampered with; and (3) BAC lacked standing to

bring the foreclosure action and/or was not the real party in interest.

        {¶ 5} Mapp asserted that his neglect of the case was excusable under Civ.R.

60(B)(1).     Mapp also asserted that given the forgery, alteration, or tampering of the


1. By entry filed on September 28, 2011, the trial court substituted "Bank of America, N.A., successor by merger
to BAC Home Loans Servicing, L.P. fka Countrywide Home Loans Servicing, L.P." as the plaintiff.
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documents attached to BAC's complaint, he was entitled to relief under Civ.R. 60(B)(3).

Finally, Mapp challenged the amount of damages awarded by the trial court to BAC, pursuant

to Civ.R. 60(B)(5), on the ground the award was not supported by the record.

       {¶ 6} On December 5, 2012, the trial court denied Mapp's Civ.R. 60(B) motion

without a hearing.     The trial court found that although the motion was filed within a

reasonable time, Mapp failed to establish he had meritorious defenses, and he was not

entitled to relief under Civ.R. 60(B)(1), (3), or (5).

       {¶ 7} Mapp appeals, raising three assignments of error.

       {¶ 8} Assignment of Error No. 1:

       {¶ 9} THE TRIAL COURT ABUSED ITS DISCRETION WHERE IT DENIED THE

MOTION MADE PURSUANT TO CIV.R. 60(B)(1), WHICH ASSERTED THAT CURTIS

MAPP HAD EXCUSABLY NEGLECTED THE CASE AND HAD MERITORIOUS DEFENSES

TO PRESENT IF RELIEF WAS GRANTED, INCLUDING (1) THAT THE AMOUNT OF THE

JUDGMENT WAS IN EXCESS OF ANY AMOUNT OWED, (2) THAT PLAINTIFF LACKED

STANDING OR WAS NOT THE REAL PARTY IN INTEREST, AND (3) THAT THE

MORTGAGE AND NOTE DOCUMENTS WERE FORGED OR TAMPERED WITH TO THE

EXTENT THAT THE DOCUMENTS PURPORT TO PERTAIN TO MORE THAN ONE

PARCEL OF LAND.

       {¶ 10} Mapp argues the trial court's denial of his Civ.R. 60(B)(1) motion was an abuse

of discretion because his neglect of the case was excusable and he presented three

meritorious defenses, including that BAC lacked standing to bring the foreclosure action

and/or was not the real party in interest. In its decision, the trial court rejected this defense

as follows:

              Finally, Mapp asserts that he has a meritorious defense because
              BAC "lacks standing and/or is not the real party in interest." He
              alleges that the mortgage was assigned to BAC on May 28,
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              2010, which "was after Countrywide FSB had been converted
              into a national bank and merged into Bank of America, NA."
              Therefore, according to Mapp, Countrywide was out of
              exist[e]nce at the time of the purported assignment. This
              argument presupposes, however, that Countrywide Bank, FSB
              was the transferor. According to the evidence in the record, the
              deed to the property at issue was assigned by Mortgage
              Electronic Registration Systems, Inc. ("MERS") to BAC. Mapp
              has made no allegation with regard to MERS. Therefore, BAC's
              alleged lack of standing does not constitute a meritorious
              defense.

       {¶ 11} We note that although Mapp's Civ.R. 60(B) motion was captioned "Motion for

Relief from Judgment," the portion of his motion challenging BAC's standing was in

substance a motion to vacate a void judgment because it challenged the trial court's

jurisdiction. See In re Adoption of Goldberg, 12th Dist. No. CA2001-04-026, 2001 WL

1079032 (Sept. 17, 2001) (construing a motion for relief from judgment as a motion to vacate

a void judgment for lack of jurisdiction). A motion to vacate a void judgment need not satisfy

the requirements of Civ.R. 60(B), which permits equitable relief from a jurisdictionally valid

judgment. Id. at *2, citing Demianczuk v. Demianczuk, 20 Ohio App.3d 244, 245 (8th

Dist.1984). An Ohio court has inherent power to vacate its own void judgment irrespective of

Civ.R. 60(B). Patton v. Diemer, 35 Ohio St.3d 68 (1988), paragraph four of the syllabus;

Demianczuk at 245. Therefore, it was not incumbent upon Mapp to establish a basis for

relief under Civ.R. 60(B) by showing a meritorious defense. Rather, what is at issue is

whether the trial court had jurisdiction over the foreclosure proceeding or whether it lacked

such jurisdiction because BAC lacked standing to file the foreclosure complaint. See

Goldberg.

       {¶ 12} In a recent decision involving a foreclosure action, the Ohio Supreme Court

held that standing is jurisdictional, and that because standing to sue is required to invoke the

jurisdiction of the common pleas court, standing is to be determined as of the filing of the

complaint. Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-
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5017, ¶ 22, 24, 27. The court emphasized that Civ.R. 17(A), which requires actions to be

prosecuted in the name of the real part in interest, does not address standing but rather,

simply concerns proper party joinder. Id. at ¶ 33. Accordingly, "a lack of standing at the

outset of litigation cannot [subsequently] be cured by receipt of an assignment of the claim."

Id. at ¶ 41. Likewise, "a common pleas court cannot substitute a real party in interest for

another party if no party with standing has invoked its jurisdiction in the first instance." Id. at

¶ 38.

        {¶ 13} In the case at bar, Mapp alleged that BAC lacked standing to file the

foreclosure complaint because Countrywide no longer existed when the mortgage was

assigned to BAC. The trial court rejected Mapp's allegation on the ground it was MERS, not

Countrywide, that assigned the mortgage to BAC. However, as Mapp notes, the assignment

of mortgage clearly states: "(MERS) Mortgage Electronic Registration Systems, Inc., acting

solely as nominee for Countrywide Bank, FSB, * * * does hereby sell, assign, transfer, and

set over unto BAC Home Loans Servicing, LP * * * a certain mortgage deed * * * together

with the Promissory Note[.]" (Emphasis added.) The trial court's decision does not address

Mapp's allegation that Countrywide no longer existed when MERS, "acting solely as nominee

for Countrywide," assigned the mortgage to BAC. There is no evidence in the record as to

when Countrywide ceased to exist and/or was merged into Bank of America.

        {¶ 14} We therefore reverse the trial court's finding that "BAC's alleged lack of

standing does not constitute a meritorious defense" and remand the case to the trial court for

a hearing to determine BAC's standing to sue, and correspondingly whether the trial court

had jurisdiction over the foreclosure proceedings. On remand, the trial court must determine

whether MERS had the authority to assign the mortgage and/or the note as the nominee for

Countrywide in light of the claim that Countrywide was no longer in existence when the

mortgage was assigned to BAC. In this regard, we observe that Schwartzwald only requires
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a party to establish an interest in either the note or the mortgage at the time the complaint is

filed in order to have standing to prosecute a foreclosure action. Schwartzwald, 2012-Ohio-

5017 at ¶ 28.

       {¶ 15} In light of the foregoing, we decline to address whether Mapp's neglect of the

case was excusable under Civ.R. 60(B)(1). We also decline to address his two other

meritorious defenses (that he was not properly credited with some of the mortgage payments

he made, and that documents attached to BAC's complaint were forged, altered, or tampered

with). Mapp's first assignment of error is sustained to the extent indicated.

       {¶ 16} Assignment of Error No. 2:

       {¶ 17} THE TRIAL COURT ABUSED ITS DISCRETION WHERE IT DENIED THE

MOTION MADE PURSUANT TO CIV.R. 60(B)(3) WHERE FRAUD, MISREPRESENTATION

AND/OR MISCONDUCT OF AN ADVERSE PARTY IS PRESENT BASED UPON THE

PURPORTED MORTGAGE OF TWO PARCELS, WHERE THE MORTGAGE WAS TO BE

FOR ONLY ONE PARCEL, AS DEMONSTRATED BY THE SECOND PAGE OF THE OPEN-

END MORTGAGE.

       {¶ 18} Assignment of Error No. 3:

       {¶ 19} THE TRIAL COURT ABUSED ITS DISCRETION WHERE IT DENIED THE

MOTION MADE PURSUANT TO CIV.R. 60(B)(5), WHICH CHALLENGED THE AMOUNT

OF THE JUDGMENT.

       {¶ 20} Given our holding on Mapp's first assignment of error, we decline to address his

second and third assignments of error as they are not ripe for review at this time. If, upon

remand, the trial court determines that BAC had standing to file the foreclosure complaint,

Mapp may appeal that decision and renew his arguments pertaining to the trial court's denial

of his Civ.R. 60(B) motion, and in particular, the trial court's ruling on his several Civ.R. 60(B)

claims and meritorious defenses.
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                                                                 Butler CA2013-01-001

       {¶ 21} Judgment reversed and remanded for further proceedings in accordance with

this opinion.


       RINGLAND, P.J., and S. POWELL, J., concur.




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