[Cite as BAC Home Loans Servicing, L.P. v. Komorowski, 2012-Ohio-1341.]


                Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 96631




                 BAC HOME LOANS SERVICING L.P.
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                 KENNETH J. KOMOROWSKI, ET AL.
                                                        DEFENDANTS-APPELLANTS



                                         JUDGMENT:
                                          AFFIRMED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-699101

        BEFORE: Cooney, J., Stewart, P.J., and Sweeney, J.

        RELEASED AND JOURNALIZED: March 29, 2012
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ATTORNEY FOR APPELLANT

Scott D. Simpkins
Climaco, Wilcox, Peca, Tarantino & Garofoli Co., L.P.A.
55 Public Square, Suite 1950
Cleveland, OH 44113


ATTORNEYS FOR APPELLEES

For BAC Home Loans Servicing

Stacy L. Hart
Julia E. Steelman
Lerner, Sampson & Rothfuss
120 East Fourth Street, Suite 800
Cincinnati, OH 45202

For Dollar Bank

Dollar Bank
Three Gateway Center, 9th Floor
Pittsburgh, PA 15222

For Fifth Third Bank

Fifth Third Bank
Legal Department
530 Walnut Street, 7th Floor
Cincinnati, OH 45202

For State of Ohio Estate Tax Division

Melanie Cornelius
Assistant Attorney General
150 East Gay Street, 21st Floor
Columbus, OH 43215
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For Target National Bank

Target National Bank f/k/a
Retailers National Bank
3701 Wayzata Blvd.
MS-3CG
Minneapolis, MN 55416

For Unifund CCR Partners Assignee

J. Louis Kurtzer
P.O. Box 42465
Cincinnati, OH 45242
                                           4




COLLEEN CONWAY COONEY, J.:

      {¶1} Defendant-appellant, Terese Komorowski (“Terese”), appeals the trial

court’s denial of her motion to vacate a foreclosure decree and order confirming the

sheriff’s sale of her house. We find no merit to the appeal and affirm.

      {¶2} In February 2004, Terese’s husband, Kenneth Komorowski, signed a
promissory note to borrow $148,700 from America’s Wholesale Lender to purchase a
house in Westlake. Terese and Kenneth executed a mortgage that identified America’s
Wholesale Lender as the lender. The mortgage also provided that Mortgage Electronic
Systems, Inc. (“MERS”) “is acting solely as a nominee for Lender and Lender’s
successors and assigns.” (Emphasis sic.)

      {¶3} Kenneth made timely payments for five years before he became ill and

defaulted on the note in April 2009. BAC Home Loans Servicing L.P. (“BAC”) notified

Kenneth that his loan was in default and accelerated the mortgage shortly before he died

on June 14, 2009.

      {¶4} Ten days after Kenneth’s death, Terese sent a cashier’s check to BAC in the

amount of $5,143, which was intended to cover past due mortgage payments for April,

May, and June 2009, as well as an advance payment for the month of July 2009.

However, BAC returned the check with a form indicating it would not accept the funds

because Terese Komorowski was not a party to the loan.

      {¶5} BAC filed the complaint in foreclosure on July 20, 2009. The complaint

named Kenneth Komorowski as a defendant because he was the sole obligor on the note.
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The complaint also named Terese Komorowski as a party defendant because she was a

current title holder of the property. BAC later amended the complaint to substitute

Kenneth Komorowski with “the Unknown Heirs, Devisees, Legatees, Executors,

Administrators, Spouses and Assigns and the Unknown Guardians or Minors and/or

Incompetent Heirs of Komorowski” (“Unknown Heirs”). It is undisputed that BAC did

not attempt to name the Estate of Kenneth Komorowski as a party defendant. It is also

undisputed that no estate for Kenneth had been opened at that time.

       {¶6} There is an “Assignment of Mortgage” attached to the complaint signed by

Shellie Hill (“Hill”) on July 9, 2009, which purports to assign the mortgage to BAC. The

assignment indicates that Hill is “Assistant Secretary and Vice President” of MERS. The

assignment, which was prepared by the law firm of Lerner, Sampson & Rothfuss, states,

in pertinent part:

       KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
       Mortgage Electronic Registration Systems, Inc., as nominee for America’s
       Wholesale Lender, it successors and assigns, whose address is PO Box
       7814 Ocala, FL 34478, does hereby sell, assign, transfer and set over unto
       BAC Home Loans Servicing, L.P. fka Countrywide Home Loans Servicing,
       L.P., whose address is 7105 Corporate Drive, Mail Stop PTX-C-35, Plano,
       TX 75024, a certain mortgage from Kenneth J. Komorowski, a married man
       and Teresa [sic] M. Komorowski, his wife to Mortgage Electronic
       Registration Systems, Inc., as nominee for America’s Wholesale Lender, its
       successors and assigns dated February 27, 2004, recorded March 5, 2004, as
       Instrument Number 200403051022, in the Office of the Cuyahoga County
       Recorder, and all sums of money due and to become due thereon, and
       secured by the following real estate: * * *.
                                             6

       {¶7} After obtaining service on the unknown heirs by publication, BAC moved

for and obtained a default judgment against Terese and the unknown heirs.                The

foreclosure magistrate recommended granting the default judgment on May 20, 2010.

On June 8, 2010, Terese’s trial counsel filed an answer and a stipulation for leave to file

an answer. On June 18, 2010, the trial court adopted the magistrate’s decision granting

the default judgment.     The journal entry granted BAC a decree in foreclosure and

authorization to order a sheriff’s sale of the property. In a separate entry, the court struck

the Komorowski’s stipulation for leave to file an answer because the stipulation did “not

contain the signature of plaintiff’s counsel or any indication that plaintiff’s counsel gave

her consent by telephone,” and struck the untimely answer.           The Cuyahoga County

Sheriff sold the property on August 25, 2010 to the Federal National Mortgage

Association.

       {¶8} On December 13, 2010, Terese Komorowski filed a motion to vacate order

confirming the sheriff’s sale and foreclosure decree, arguing that because BAC failed to

serve the Estate of Komorowski, it failed to serve a necessary party and the judgment is

void ab initio. The court denied the motion to vacate and Terese’s subsequent motion for

reconsideration. This appeal followed.

       {¶9} Terese raises six assignments of error contending the trial court erred: (1) in

denying her motion to vacate decree of foreclosure and confirmation of sheriff’s sale; (2)

in failing to grant her motion for reconsideration, (3) in denying her stipulation for leave
                                            7

to file an answer and striking her answer; (4) granting BAC’s motion for default

judgment; (5) issuing the decree of foreclosure; and (6) issuing the decree of confirmation

of the sheriff’s sale. Terese argues the court made these errors because it acted without

jurisdiction. Terese claims the court lacked jurisdiction because BAC failed to serve the

Estate of Kenneth Komorowski, which was a necessary party.               We address these

assigned errors together because they are interrelated and because Terese has not argued

them separately.

                                    Standard of Review

       {¶10} An appellate court will not reverse the trial court’s ruling on a motion for

relief from judgment unless the trial court abused its discretion. Rose Chevrolet, Inc. v.

Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988). An abuse of discretion standard

requires a showing that the trial court’s attitude was unreasonable, arbitrary, or

unconscionable. In re Jane Doe 1, 57 Ohio St.3d 135, 137, 566 N.E.2d 1181 (1991).

When applying the abuse of discretion standard, this court may not substitute its judgment

for that of the trial court.   Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614

N.E.2d 748 (1993).

       {¶11} To prevail on a Civ.R. 60(B) motion to vacate judgment, the moving party

must demonstrate the following:

       (1) the party has a meritorious defense or claim to present if relief is
       granted; (2) the party is entitled to relief under one of the grounds stated in
       Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable
       time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not
                                             8

       more than one year after the judgment, order or proceeding was entered or
       taken. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d
       146, 351 N.E.2d 113 (1976), paragraph two of the syllabus.

       {¶12} These requirements are independent and written in the conjunctive;

therefore, all three must be clearly established in order to be entitled to relief. Id. at 151.

They must be shown by “operative facts” that demonstrate the movant’s entitlement to

relief. Rose Chevrolet at 21. Although the movant is not required to submit evidentiary

material in support of the motion, the movant must do more than make bare allegations of

entitlement to relief. Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 1996-Ohio-430,

665 N.E.2d 1102. “Moreover, if the material submitted by the movant does not provide

operative facts which demonstrate that relief is warranted, the court may deny the motion

without conducting a hearing.”           Black v. Pheils, 6th Dist. No. WD-03-045,

2004-Ohio-4270, ¶ 68; Kay at 19.

       {¶13} However, a judgment rendered without proper jurisdiction over the action or

the defendant is void rather than voidable. Patton v. Deimer, 35 Ohio St.3d 68, 70, 518

N.E.2d 941 (1988). If the judgment is void, the trial court has the inherent power to

vacate the judgment and a party need not seek relief under Civ.R. 60(B). Id.

                                           Service

       {¶14} Terese argues she has a meritorious defense if relief is granted.

Specifically, she argues the default judgment and subsequent judgments flowing

therefrom are void because BAC did not have service on a necessary party. Terese
                                            9

asserts: “it is axiomatic that a deceased person may not be sued (only the administrator or

executor of an estate of deceased person in his or her representative capacity may be

sued) and that a lawsuit brought against a dead person is a legal nullity.” In support of

this argument, Terese relies on Baker v. McKnight, 4 Ohio St.3d 125, 447 N.E.2d 104

(1983), Wells Fargo Bank NA v. Unknown Heirs of Irene Wackerle, 8th Dist. No. 96223,

2011-Ohio- 4261, and Wells v. Michael, 10th Dist. No. 05AP-1353, 2006-Ohio-5871.

None of these cases support her argument.

       {¶15} This court dismissed Wells Fargo Bank v. Unknown Heirs of Irene Wackerle

for lack of a final appealable order, without reaching the merits of the case. Baker and

Wells are distinguishable because they both involve personal injury claims against

defendants who died before the complaint was filed rather than claims involving real

property.   In Baker, the plaintiffs filed suit against John J. McKnight for damages

resulting from a motor vehicle accident. After the statute of limitations ran, the plaintiffs

learned that McKnight had died before they filed their complaint. They sought leave to

amend their complaint to name the Estate of John J. McKnight pursuant to Civ.R. 15(C),

which the trial court denied.      The trial court’s decision was affirmed on appeal.

However, the Ohio Supreme Court held that where the requirements of Civ.R. 15(C) for

relation back are met, an otherwise timely complaint in negligence, which designates as a

sole defendant one who dies after the cause of action accrued but before the complaint

was filed, has met the requirements of the applicable statute of limitations and
                                           10

commenced an action pursuant to Civ.R. 3(A). Baker at syllabus. Accordingly, the

Supreme Court held that such complaint may be amended to substitute an administrator of

the decedent’s estate for the original defendant after the limitations period has expired.

Id.

       {¶16} Implicitly, Baker holds that a plaintiff in a personal injury action must sue a

deceased defendant’s estate as opposed to the deceased individual, in order to pursue the

plaintiff’s claims.   Such a rule makes sense in personal injury cases because the

defendant who allegedly caused the harm is solely responsible for the harm and because

monetary damages are sought against the estate.          Foreclosure cases and litigation

involving real property are different because “following death, all real estate passes to the

heirs.” Rinehart v. Wilkes, 10th Dist. No. 84AP-952, 1985 WL 10297 (May 23, 1985).

“Upon such circumstance, the next of kin have an immediate beneficial interest in the real

estate.” Id., citing Brownfield v. Home Owners Loan Corp., 38 Ohio Law. Abs. 30, 49

N.E.2d 92 (Franklin Cty. 1942). Hence, in an action to foreclose a mortgage brought

after the death of the mortgagor, the heirs and devisees of the mortgagor are necessary

parties. CitiMortgage Inc. v. Bumphus, 6th Dist. No. E-10-066, 2011-Ohio-4858; Gary

v. May, 16 Ohio 66, 76, 1847 WL 13 (1847); and Rinehart.

       {¶17} Although BAC initially sued Kenneth individually and Terese as a title

holder, it amended the complaint, with leave of court, to substitute the unknown heirs in

Kenneth’s place. Further, BAC also served Terese because she was a current title holder
                                              11

on the property and had an interest in the property. Therefore, BAC sued the appropriate

parties in its foreclosure claim, and the first assignment of error is overruled.

                                            Standing

       {¶18} Terese also argues all judgments rendered in this case are void because BAC

lacked standing to sue her and Kenneth’s heirs. Although Terese did not raise this issue

in the trial court, the issue of standing may be raised at any time during the pendency of

the proceedings because it affects the court’s jurisdiction. New Boston Coke Corp. v.

Tyler, 32 Ohio St.3d 216, 513 N.E.2d 302 (1987), paragraph two of the syllabus.

       {¶19} Terese claims the assignment of the mortgage from MERS to BAC is

invalid because Hill, who executed the assignment on behalf of MERS, did not have

authority to execute a valid assignment on behalf of MERS. Terese refers this court to a

website where Hill’s deposition in another foreclosure case is posted. However, this is

not part the record on appeal for us to review.1

       {¶20} Therefore, Hill’s deposition constitutes evidence outside the record of the

trial court’s proceedings and this Court may not consider it. McAuley v. Smith, 82 Ohio

St.3d 393, 396, 696 N.E.2d 572 (1998).


           Terese’s claim that this issue was raised in her motion for reconsideration is not well
       1


taken. Her motion for reconsideration was a nullity. See Pitts v. Ohio Dept. of Transp., 67 Ohio
St.2d 378, 380, 423 N.E.2d 1105 (1981).
                                            12

                               Stipulation for Leave to Plead

       {¶21} Terese also argues the trial court erred in striking her answer and stipulation

for leave to plead. Terese filed the answer and stipulation for leave to plead after the

answer deadline had passed. In striking the stipulation, the court noted that there was no

indication that BAC had consented to allowing Terese leave to plead. Moreover, the trial

court has an inherent right to control its own docket. State v. Unger, 67 Ohio St.2d 65, 67,

423 N.E.2d 1078 (1981).        Parties cannot unilaterally extend deadlines without the

consent of the court. Civ.R. 6 states that the court has discretion whether to extend

deadlines.

       {¶22} Accordingly, the assignments of error are overruled.

       {¶23} Judgment affirmed.

       It is ordered that appellees recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MELODY J. STEWART, P.J., CONCURS;
JAMES J. SWEENEY, J., CONCURS IN JUDGMENT ONLY
