[Cite as Bank of NY Mellon Trust Co. v. Shaffer, 2013-Ohio-3205.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     GEAUGA COUNTY, OHIO


THE BANK OF NEW YORK MELLON                            :            OPINION
TRUST COMPANY, N.A. f.k.a. THE BANK
OF NEW YORK TRUST COMPANY, N.A.,                       :
AS SUCCESSOR IN INTEREST TO                                         CASE NO. 2011-G-3051
JPMORGAN CHASE BANK, NATIONAL                          :
ASSOCIATION, f.k.a. JPMORGAN
CHASE BANK, AS TRUSTEE-SURF-BC2,                       :

                 Plaintiff-Appellee,                   :

        - vs -                                         :

THERESA A. SHAFFER a.k.a.                              :
THERESA MCFAUL, et al.,
                                                       :
                 Defendant-Appellant,
                                                       :
GEAUGA COUNTY TREASURER, et al.,
                                                       :
                 Defendants-Appellees.
                                                       :


Civil Appeal from the Geauga County Court of Common Pleas, Case No. 09F000648.

Judgment: Reversed and remanded.


Matthew I. McKelvey, and Bill L. Purtell, Lerner, Sampson & Rothfuss, 120 East Fourth
Street, Suite 800, P.O. Box 5480, Cincinnati, OH 45202 (For Plaintiff-Appellee).

James R. Douglass, James R. Douglass Co., L.P.A., 4600 Prospect Avenue, Shaker
Heights, OH 44103 (For Defendant-Appellant).

David P. Joyce, Geauga County Prosecutor, Courthouse Annex, 231 Main Street,
Chardon, OH 44024 (For Appellee-Geauga County Treasurer).

David W. Cliffe, 525 Vine Street, #800, Cincinnati, OH 45202 (For Appellee-The
Huntington National Bank, Successor by Merger to Sky Bank).
CYNTHIA WESTCOTT RICE, J.,

       {¶1}   Appellant, Theresa A. Shaffer, appeals the default judgment of foreclosure

entered in favor of Appellee, The Bank of New York Mellon Trust Company, N.A. (“New

York Mellon”), by the Geauga County Court of Common Pleas. At issue is whether New

York Mellon’s lack of standing when it filed this action could be cured by the assignment

of the mortgage prior to the entry of final judgment. For the reasons that follow, the trial

court’s judgment is reversed, and this matter is remanded for the trial court to dismiss

the complaint without prejudice.

       {¶2}   On June 8, 2009, New York Mellon filed a complaint in foreclosure in the

Geauga County Court of Common Pleas against appellant.

       {¶3}   New York Mellon alleged it was “the holder of a note, a copy of which is

unavailable at this time.” New York Mellon further alleged that the note and the

mortgage securing the note were in default. The mortgage attached to the complaint

identifies “Wilmington Finance” as the lender. That mortgage was recorded on January

21, 2004.

       {¶4}   On September 11, 2009, New York Mellon filed an affidavit in which it

stated that the principal balance owed by appellant was $178,505.91; “[t]he Creditor

does hold the Debtor[’]s note by assignment;” and “[a]n assignment of mortgage was

recorded with [the] Geauga County Recorder on June 22, 2009.” As noted above, New

York Mellon filed its complaint two weeks earlier on June 8, 2009.

       {¶5}   Also, on September 11, 2009, New York Mellon filed a motion for default

judgment against appellant.




                                             2
         {¶6}   On December 9, 2009, appellant filed a motion for leave to plead, which

the trial court granted until January 4, 2010.

         {¶7}   On January 5, 2010, appellant filed a motion for extension of time to

respond to the complaint, which the trial court granted until February 8, 2010.

         {¶8}   On February 8, 2010, appellant filed another motion for extension of time

to respond to the complaint, which the trial court denied.

         {¶9}   On February 25, 2010, the trial court entered a default judgment in

foreclosure. The court found appellant was “in default of * * * Answer;” “that the

allegations contained in the Complaint are true;” and “that the conditions of [the]

Mortgage have been broken and plaintiff is entitled to have the equity of redemption of

the defendant-titleholders foreclosed.”

         {¶10} Later that same date, appellant, appearing pro se, filed her answer.

         {¶11} On March 2, 2010, appellant filed a “motion to vacate order for sale and

withdraw property from sale” in which she requested mediation “to prevent foreclosure

sale.”

         {¶12} On March 19, 2010, the trial court ordered the case stayed and the parties

to attend mediation.

         {¶13} On July 9, 2010, appellant filed a motion to dismiss on the grounds that

New York Mellon did not have standing to file the action. She also asked that the

mediation scheduled for that day (July 9) be cancelled.

         {¶14} On July 15, 2010, the trial court denied the motion to dismiss.




                                              3
       {¶15} On September 2, 2010, appellant filed a motion for summary judgment.

She argued she was entitled to judgment because New York Mellon “has no legal title to

the mortgage and failed to prove ownership of the mortgage.”

       {¶16} On September 13, 2010, the trial court entered an order vacating the

mediation stay, noting that such efforts were unsuccessful.

       {¶17} On October 28, 2010, the trial court denied appellant’s motion for

summary judgment.

       {¶18} On November 22, 2010, appellant filed another motion to dismiss based

on New York Mellon's alleged lack of standing.

       {¶19} On December 7, 2010, the trial court denied appellant’s November 22,

2010 motion to dismiss.

       {¶20} On September 26, 2011, appellant, now represented by counsel, filed a

motion for relief from judgment, seeking to have the default judgment in foreclosure

vacated. Again, appellant argued that New York Mellon lacked standing to invoke the

trial court’s jurisdiction. New York Mellon did not attach or reference any evidence

showing it had standing when it filed this action. Instead, New York Mellon argued that

standing is not necessary to invoke the trial court’s subject-matter jurisdiction and that

appellant waived any challenge to standing by not raising it within the time limits

specified in Civ.R. 60(B).

       {¶21} On November 29, 2011, the trial court entered judgment denying

appellant’s motion for relief from judgment. The court found that the motion was filed

over 18 months after the default judgment was entered and that appellant “has offered

no reason why the motion was filed so long after the entry of judgment.” The court




                                            4
continued: “Even had Ms. Shaffer filed her Motion for Relief from Judgment within a

reasonable time, she has not demonstrated entitlement to such relief. Her motion offers

no explanation as to why she failed to file an answer or responsive pleading within the

time provided by the Rules of Civil Procedure and the extensions granted by the Court.”

      {¶22} Appellant appealed the trial court’s default judgment to this court.

Appellant argued that New York Mellon lacked standing and failed to vest the trial court

with subject-matter jurisdiction to enter its default judgment. Further, appellant argued

that the trial court erred in denying her motion for relief from judgment. In Bank of New

York Mellon Trust Co., N.A. v. Shaffer, 11th Dist. Geauga No. 2011-G-3051, 2012-Ohio-

3638, this court affirmed the trial court’s judgment, holding that there was no defect in

New York Mellon’s standing and that appellant failed to show entitlement to relief from

judgment under Civ.R. 60(B).

      {¶23} Appellant appealed this court’s decision to the Supreme Court of Ohio. In

Bank of New York Mellon Trust Co., N.A. v. Shaffer, 134 Ohio St.3d 1435, 2013-Ohio-

161, the Supreme Court of Ohio accepted jurisdiction of this case and remanded the

matter to this court for application of the Supreme Court’s recent decision in Fed. Home

Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017.

      {¶24} In Schwartzwald, the Supreme Court held that standing is required to

present a justiciable controversy and is a jurisdictional requirement. Id. at ¶21-22. The

Court held that, because standing is required to invoke the trial court’s jurisdiction,

standing is determined as of the filing of the complaint. Id. at ¶24. Further, the Court

held that a mortgage holder cannot rely on events occurring after the complaint is filed

to establish standing. Id. at ¶26. Thus, the plaintiff cannot cure its lack of standing by




                                            5
obtaining an interest in the subject of the litigation after the action is filed. Id. at ¶36.

Further, because standing is jurisdictional, it can never be waived and may be

challenged at any time. See Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶11.

Finally, the Court in Schwartzwald held that when the evidence demonstrates the

mortgage lender lacked standing when the foreclosure action was filed, the action must

be dismissed without prejudice. Id. at ¶40. This court followed the Supreme Court’s

holding in Schwartzwald in Fed. Home Loan Mortg. Corp. v. Rufo, 11th Dist. Ashtabula

No. 2012-A-0011, 2012-Ohio-5930.

         {¶25} This court in Rufo held that, pursuant to Schwartzwald, courts of common

pleas have subject-matter jurisdiction over justiciable matters and that standing to sue is

required to make a justiciable case. Rufo at ¶28. Thus, without standing, a case is not

justiciable and the court lacks subject-matter jurisdiction. Id. When the trial court lacks

subject-matter jurisdiction, its final judgment is void. Id. at ¶15.

         {¶26} Applying the foregoing jurisprudence to this case, while New York Mellon

filed its complaint on June 8, 2009, the record does not demonstrate that as of that date

it held the note or mortgage. The mortgage attached to the complaint shows that

Wilmington Finance, not New York Mellon, was the holder of the mortgage. Further, the

affidavit filed by New York Mellon demonstrates that the assignment of the mortgage

was recorded on June 22, 2009, two weeks after the complaint was filed. Thus, there is

no evidence that New York Mellon held the mortgage on the date the complaint was

filed.

         {¶27} Further, while the complaint alleges that New York Mellon is “the holder of

a note,” New York Mellon did not attach a copy of the note to the complaint, as required




                                               6
by Civ.R. 10. Instead, it alleged a copy of the note was “unavailable at this time” without

offering any reason for its unavailability. Thereafter, New York Mellon never filed a copy

of the note.   New York Mellon’s allegation in the complaint that it holds a note is

conclusory without any detail concerning when New York Mellon obtained the note.

Likewise, while New York Mellon stated in its affidavit that it holds the note by

assignment, it did not state when or by whom the note was assigned to it. Thus, there

is no evidence in the record that New York Mellon held the note on the date it filed the

complaint.

       {¶28} Because New York Mellon failed to establish it held either the note or

mortgage as of the date it filed the complaint, it lacked standing. As a result, this case

is not justiciable; the trial court lacked subject-matter jurisdiction to enter its judgment of

foreclosure; its judgment was void; and the court’s lack of subject-matter jurisdiction

was subject to challenge at any time.

       {¶29} Further, the fact that Shaffer was in default of an answer does not mean

she admitted New York Mellon held the note on the date it filed the complaint, thus

conferring subject-matter jurisdiction on the court. As noted above, the allegation in the

complaint that New York Mellon holds a note is merely conclusory, and does not include

any detail as to when or how it obtained the note. In any event, it is well settled that

“[p]arties may not, by stipulation or agreement, confer subject-matter jurisdiction on a

court, where subject-matter jurisdiction is otherwise lacking.” Fox v. Eaton Corp., 48

Ohio St.2d 236, 238 (1976), overruled on other grounds by Manning v. Ohio State

Library Bd., 62 Ohio St.3d 24, 29 (1991). Further, this court has held that the lack of

subject-matter jurisdiction can be raised at any stage of the proceedings and can be




                                              7
raised for the first time on appeal. Smith v. Dietelbach, 11th Dist. Trumbull No. 2011-T-

0007, 2011-Ohio-4308, ¶14.

       {¶30} While this court in Self Help Ventures Fund v. Jones, 11th Dist. Ashtabula

No. 2012-A-0014, 2013-Ohio-868, held that the assignment of a mortgage is sufficient

to transfer a contemporaneous note, id. at ¶39, this court in Jones held that for standing

to exist, the mortgage or note must have been assigned to the mortgagee-plaintiff prior

to the filing of the complaint. Id. at ¶26. Because the only evidence offered by New

York Mellon in its affidavit regarding the mortgage assignment was that it was recorded

two weeks after the complaint was filed, the mortgage assignment was insufficient to

confer standing on New York Mellon or to vest the trial court with subject-matter

jurisdiction.

       {¶31} Further, since the trial court lacked subject-matter jurisdiction and its

default judgment was therefore void, Shaffer was not required to comply with the time

requirements of Civ.R. 60(B) in order to be entitled to an order vacating the judgment.

A court’s authority to vacate a void judgment is not derived from the Rules of Civil

Procedure, but rather is an inherent power possessed by courts. Hoffman v. New Life

Fitness Centers, Inc. 116 Ohio App.3d 737, 739 (3d Dist.1996), appeal not allowed by

Supreme Court of Ohio at 78 Ohio St.3d 1464 (1997). Further, a judgment rendered by

a court lacking subject matter jurisdiction is void ab initio, and may be vacated by virtue

of the court’s inherent power independent of the grounds for vacation of judgments set

forth in Civ.R. 60(B). Falk v. Wachs, 116 Ohio App.3d 716, 721 (9th Dist.1996). Thus,

a motion to vacate a void judgment need not comply with the requirements of Civ.R.

60(B). Id.




                                            8
       {¶32} We note that, prior to appellant’s motion for relief from judgment, she

repeatedly brought to the trial court’s attention New York Mellon’s lack of standing. She

asserted the issue in her answer, filed February 25, 2010; in her motion to dismiss, filed

July 9, 2010; in her second motion to dismiss, filed November 22, 2010; and in her

motion for summary judgment, filed September 2, 2010. While Shaffer’s answer was

out of rule by 13 days, thereafter, she diligently attempted to bring the issue of New

York Mellon’s lack of standing to the trial court’s attention.

       {¶33} Whether a trial court has subject-matter jurisdiction is a question of law

that we review de novo. Dietelbach, supra. Since the trial court lacked subject-matter

jurisdiction in entering default judgment, the court erred in denying appellant’s motion to

vacate the judgment. Further, since appellant was not required to comply with Civ.R. 60

in her efforts to vacate the court’s void judgment, the court erred in finding that, because

she did not comply with the time requirement of Civ.R. 60(B), she was not entitled to

relief from judgment.

       {¶34} For the reasons stated in this opinion, it is the judgment and order of this

court that the judgment of the Geauga County Court of Common Pleas is reversed, and

this matter is remanded for the trial court to dismiss this action without prejudice.



COLLEEN MARY O’TOOLE, J., concurs,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

                                ______________________


DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.




                                              9
       {¶35} The essential facts of this appeal are as follows: On June 8, 2009, New

York Mellon filed a foreclosure action against Shaffer, alleging that it was “the holder of

a note,” by assignment, “a copy of which is unavailable at this time.”

       {¶36} Despite being granted leave to do so, Shaffer failed to file a timely answer

to the complaint.

       {¶37} On February 25, 2010, the trial court issued a default Judgment and

Decree in Foreclosure and Reformation of Mortgage.           Shaffer did not appeal this

Judgment.

       {¶38} On September 26, 2011, Shaffer filed a Motion for Relief from Judgment,

seeking to have the February 25, 2010 Judgment and Decree in Foreclosure vacated.

The basis for the Motion for Relief from Judgment was New York Mellon’s alleged lack

of “standing to invoke the jurisdiction of this Court.”

       {¶39} The trial court’s denial of Shaffer’s Motion for Relief should be affirmed on

the grounds that New York Mellon properly pled its standing to invoke the court’s

jurisdiction, the entry of default judgment was a final order, and a motion for relief from

judgment cannot be used as a substitute for an appeal. Nothing in the Ohio Supreme

Court’s decision of Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13,

2012-Ohio-5017, 979 N.E.2d 1214, alters the consequences that the application of

these legal principles have for this case. Accordingly, I dissent.

       {¶40} The Complaint filed on June 8, 2009, identified New York Mellon as

successor in interest to JPMorgan Chase Bank, National Association, fka JPMorgan

Chase Bank, as Trustee-SURF-BC2 c/o Litton Loan Servicing, L.P., and “the holder of a

note,” by assignment. Although a copy of the note was unavailable, New York Mellon




                                              10
attached the accompanying mortgage, which attested the existence of a promissory

note executed by Shaffer on January 15, 2004, for the amount of $192,100.

       {¶41} There is no defect in New York Mellon’s standing on the face of the

Complaint. This court has recognized that “Ohio Appellate Districts have repeatedly

held that a note can be transferred by assignment.” Self Help Ventures Fund v. Jones,

11th Dist. No. 2012-A-0014, 2013-Ohio-868, ¶ 39 (cases cited).                 Moreover, the

assignment of the note vests the assignee with standing to enforce the mortgage. Cent.

Mtge. Co. v. Webster, 2012-Ohio-4478, 978 N.E.2d 963, ¶ 27 (5th Dist.) (“[t]he current

holder of the note and mortgage is the real party in interest in foreclosure actions”); U.S.

Bank Natl. Assn. v. Morales, 11th Dist. No. 2009-P-0012, 2009-Ohio-5635, ¶ 32 (“[t]he

proper assignment of the subject note made U.S. Bank its current holder, with the right

to enforce all rights of the original mortgagee - including the right to foreclose”).

       {¶42} By asserting that it was the holder of the note by assignment, New York

Mellon effectively invoked the trial court’s jurisdiction. Bank of Am. N.A. v. Edmon, 6th

Dist. No. E-11-054, 2012-Ohio-3406, ¶ 9 (by “pleading * * * that it was the holder of the

note, U.S. Bank satisfied the pleading requirements of Civ.R. 8(A)”).

       {¶43} In the absence of any denial to the allegation of standing, New York

Mellon’s right to enforce the note as a holder thereof must be deemed “admitted.”

Civ.R. 8(D) (“[a]verments in a pleading to which a responsive pleading is required, other

than those as to the amount of damage, are admitted when not denied in the responsive

pleading”); Girard v. Leatherworks Partnership, 11th Dist. No. 2004-T-0010, 2005-Ohio-

4779, ¶ 38 (“[w]hen a defendant fails to answer, default judgment is appropriate




                                              11
because liability has been admitted or ‘confessed’ by the omission of statements in a

pleading refuting the plaintiff’s claims”).

       {¶44} The majority concludes, on the contrary, that “New York Mellon’s

allegation in the complaint that it holds a note is conclusory without any detail

concerning when New York Mellon obtained the note.” Supra at ¶ 27. Significantly, the

majority cites no authority for the novel proposition that a party must establish the chain

of title in the Complaint to invoke the trial court’s jurisdiction. Rather, the opposite is

true: “a plaintiff is not required to prove his or her case at the pleading stage.” York v.

Ohio State Highway Patrol, 60 Ohio St.3d 143, 144-145, 573 N.E.2d 1063 (1991);

Schmidt v. Brower, 11th Dist. No. 2010-A-0014, 2010-Ohio-4431, ¶ 20 (“[a] default

judgment is ‘based upon admission and * * * therefore obviates the need for proof”)

(citation omitted).   Unless challenged, New York Mellon was entitled to rely on the

allegations set forth in its Complaint, which must be taken as admitted due to Shaffer’s

failure to plead.

       {¶45} The majority also contends that New York Mellon’s lack of standing at the

time the Complaint was filed is demonstrated by the Creditor’s Affidavit, which stated

that “[t]he Creditor does hold the Debtor[’]s note by assignment,” and “[a]n assignment

of mortgage was recorded with the Geauga County Recorder on June 22, 2009.” The

fact that the assignment was not recorded until fourteen days after the Complaint was

filed is not indicative of when the assignment was made. As this court is aware, the

“recording of the assignment was not a condition precedent to the right of foreclosure.”

Morales, 2009-Ohio-5635, at ¶ 32; U.S. Bank Natl. Assn. v. Mitchell, 6th Dist. No. 5-10-

043, 2012-Ohio-3732, ¶ 20 (“an unrecorded assignment on the date of the complaint is




                                              12
valid, except as to subsequent bona fide purchasers for value”); Wead v. Kutz, 161 Ohio

App.3d 580, 2005-Ohio-2921, 831 N.E.2d 482, ¶ 16 (12th Dist.) (“the issue of when the

mortgage assignment was recorded becomes relevant only to the extent of establishing

creditor priority,” whereas “[t]he validity of the mortgage itself remains unaffected by the

timing of the assignment’s recordation.”).

       {¶46} The majority dismisses the implications of Shaffer’s failure to plead by

reiterating that New York Mellon’s claim to be a holder of the note is “merely

conclusory,” and that New York Mellon did “not include any detail as to when or how it

obtained the note.” Supra at ¶ 29. Again, the majority fails to support this proposition,

which is wholly contrary to the pleading requirements of Civil Rule 8, by citation to any

authority. U.S. Bank, N.A. v. Turner, 6th Dist. No. E-11-059, 2012-Ohio-3413, ¶ 12 (“by

pleading inter alia that it was the holder of a note secured by a mortgage, U.S. Bank

satisfied the pleading requirements of Civ.R. 8(A) for its foreclosure claim”).

       {¶47} It is important to recognize that it cannot be said, based on the record

before this court, whether the assignment of the note to New York Mellon occurred

before or after the filing of the Complaint. Either conclusion is perfectly consistent with

the evidence. The determinative issue, however, is that New York Mellon claimed to be

a holder at the time it filed the Complaint and the claim is deemed admitted by Shaffer’s

failure to plead. Compare Deutsche Bank Natl. Trust Co. v. Rudolph, 8th Dist. No.

98383, 2012-Ohio-6141, ¶ 23 (“[t]o reach a contrary decision [regarding standing], the

trial court must not have construed Deutsche’s factual allegations as true and must

have considered matters outside of the record - both of which are expressly prohibited”).




                                             13
       {¶48} The majority also fails to consider the fact that the February 25, 2010

Judgment and Decree in Foreclosure was a final order that was not appealed. Thus, it

may not be challenged, as Shaffer has attempted, by a Civil Rule 60(B) motion.

       {¶49} The Ohio Supreme Court has recently emphasized the significance of a

final judgment, even by default, in a foreclosure action:

       {¶50} Default judgment is the functional equivalent of a judgment

              following a trial. Civ.R. 55(B). * * * Ohio courts have previously

              held that an order of default judgment means that a trial has

              commenced for purposes of Civ.R. 41(A) and the matter has

              proceeded to verdict and final judgment. * * * Additionally, in GTE

              Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146,

              149-150, 351 N.E.2d 113 (1976), this court stated, “Regardless of

              whatever else may be said of a default judgment, it is a judgment.

              It is as good as any other judgment. It is a final determination of

              the rights of the parties.” (Emphasis added.) * * * That this default

              judgment occurred within a foreclosure proceeding does not make

              the judgment any less final.

Countrywide Home Loans Servicing v. Nichpor, __ Ohio St.3d __, 2013-Ohio-2083, __

N.E.2d __, ¶ 5-6.

       {¶51} It is equally well-established that “[a] party may not use a Civ.R. 60(B)

motion as a substitute for a timely appeal.” Doe v. Trumbull Cty. Children Servs. Bd.,

28 Ohio St.3d 128, 502 N.E.2d 605 (1986), paragraph two of the syllabus. This means

that “a proper Civ.R. 60(B) motion cannot be predicated upon an argument or point




                                             14
which could have been asserted in a direct appeal.” Karnofel v. Girard Police Dept.,

11th Dist No. 2009-T-0045, 2009-Ohio-4446, ¶ 10; Key v. Mitchell, 81 Ohio St.3d 89,

90-91, 689 N.E.2d 548 (1998).

       {¶52} Contrary to this authority, the majority contends that New York Mellon’s

alleged lack of standing deprived the trial court of its subject-matter jurisdiction, which

“can be raised at any state of the proceedings and can be raised for the first time on

appeal.” Supra at ¶ 29. The majority misinterprets the Schwartzwald, 134 Ohio St.3d

13, 2012-Ohio-5017, 979 N.E.2d 1214, decision.1

       {¶53} Schwartzwald did state that “standing to sue is required to invoke the

jurisdiction of the common pleas court,” id. at ¶ 24, but it did not state that the common

pleas court lacked subject-matter jurisdiction where a party lacked standing to sue. In

fact, there is “a distinction between a court that lacks subject-matter jurisdiction over a

case and a court that improperly exercises that subject-matter jurisdiction once

conferred upon it.” Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d

992, ¶ 10.

       {¶54} “Jurisdiction” means “the courts’ statutory or constitutional power to

              adjudicate the case.” (Emphasis omitted.) Steel Co. v. Citizens for

              a Better Environment (1998), 523 U.S. 83, 89, 118 S.Ct. 1003, 140

              L.Ed.2d 210; Morrison v. Steiner (1972), 32 Ohio St.2d 86, 87, 61

              O.O.2d 335, 290 N.E.2d 841, paragraph one of the syllabus. The

              term encompasses jurisdiction over the subject matter and over the

              person. State v. Parker, 95 Ohio St.3d 524, 2002-Ohio-2833, 769


1. The Schwartzwald decision does not contain any substantive discussion of, and only a passing
reference to, a court’s subject-matter jurisdiction.


                                              15
      N.E.2d 846, ¶22 (Cook, J., dissenting).        Because subject-matter

      jurisdiction goes to the power of the court to adjudicate the merits of

      a case, it can never be waived and may be challenged at any time.

      United States v. Cotton (2002), 535 U.S. 625, 630, 122 S.Ct. 1781,

      152 L.Ed.2d 860; State ex rel. Tubbs Jones v. Suster (1998), 84

      Ohio St.3d 70, 75, 701 N.E.2d 1002. * * *

{¶55} The term “jurisdiction” is also used when referring to a court’s

      exercise of its jurisdiction over a particular case.       See State v.

      Parker, 95 Ohio St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846, ¶20

      (Cook, J., dissenting); State v. Swiger (1998), 125 Ohio App.3d

      456, 462, 708 N.E.2d 1033. “‘The third category of jurisdiction [i.e.,

      jurisdiction over the particular case] encompasses the trial court’s

      authority to determine a specific case within that class of cases that

      is within its subject matter jurisdiction. It is only when the trial court

      lacks subject matter jurisdiction that its judgment is void; lack of

      jurisdiction over the particular case merely renders the judgment

      voidable.’” Parker at ¶22 (Cook, J., dissenting), quoting Swiger,

      125 Ohio App.3d at 462, 708 N.E.2d 1033. “Once a tribunal has

      jurisdiction over both the subject matter of an action and the parties

      to it, ‘* * * the right to hear and determine is perfect; and the

      decision of every question thereafter arising is but the exercise of

      the jurisdiction thus conferred * * *.’” State ex rel. Pizza v. Rayford




                                     16
              (1992), 62 Ohio St.3d 382, 384, 582 N.E.2d 992, quoting Sheldon’s

              Lessee v. Newton (1854), 3 Ohio St. 494, 499.

Id. at ¶ 11-12.

       {¶56} In the present case, as in Schwartzwald, the trial court had subject matter

jurisdiction of the action and the parties. Assuming, arguendo, that New York Mellon

improperly invoked that jurisdiction by lacking the requisite standing to sue, i.e., a

sufficient stake in an otherwise justiciable controversy, the court’s judgment is merely

voidable, not void ab initio. State v. Filiaggi, 86 Ohio St.3d 230, 240, 714 N.E.2d 867

(1999) (“[w]here it is apparent from the allegations that the matter alleged is within the

class of cases in which a particular court has been empowered to act, jurisdiction is

present[;] [a]ny subsequent error in the proceedings is only error in the ‘exercise of

jurisdiction,’ as distinguished from the want of jurisdiction in the first instance”) (citation

omitted).

       {¶57} Accordingly, the majority errs in its conclusion that Shaffer did not need to

comply with the requirements of Civil Rule 60(B) on the grounds that the underlying

judgment is void. PNC Bank, Natl. Assn. v. Botts, 10th Dist. No. 12AP-256, 2012-Ohio-

5383, ¶ 22 (“[l]ack of standing challenges the capacity of a party to bring an action, not

the subject matter jurisdiction of the court”) (citation omitted).           On this issue,

Schwartzwald stated that “the issue of standing, inasmuch as it is jurisdictional in

nature, may be raised at any time during the pendency of the proceedings.” 132 Ohio

St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, at ¶ 22 (citation omitted). The key words

are “during the pendency of the proceedings.” In Nichpor, the Ohio Supreme Court

made it clear that, after a judgment entry grants a decree of foreclosure and order of




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sale, the matter is no longer pending. __ Ohio St.3d __, 2013-Ohio-2083, __ N.E.2d __,

at syllabus.

       {¶58} This court’s other post-Schwartzwald decisions similarly confuse a party’s

lack of standing to sue with the trial court’s lack of subject-matter jurisdiction, and

conclude that the issue of standing may be raised at any time. See Self Help, 2013-

Ohio-868; Fed. Home Mtge. Corp. v. Rufo, 11th Dist. No. 2012-A-0011, 2012-Ohio-

5930; and BAC Home Loans Servicing, L.P. v. Meister, 11th Dist. No. 2012-L-042,

2013-Ohio-873. Accordingly, their precedential value is compromised.

       {¶59} In sum, New York Mellon properly pled its standing to invoke the trial

court’s jurisdiction. Its standing must be deemed admitted by virtue of Shaffer’s failure

to plead. The trial court’s Judgment and Decree in Foreclosure and Reformation of

Mortgage was a final order that cannot be challenged on issues that could have been

raised on direct appeal. For the foregoing reasons, I respectfully dissent.




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