[Cite as Countrywide Home Loans Servicing, L.P. v. Burden, 2011-Ohio-5949.]




          IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

COUNTRYWIDE HOME LOANS                            :
SERVICING, L.P.
     Plaintiff-Appellee                           :      C.A. CASE NO. 24569

vs.                                               :      T.C. CASE NO. 09CV398

KIMBERLIE BURDEN, ET AL.                          :      (Civil Appeal from
                                                          Common Pleas Court)
        Defendants-Appellants                     :

                                     . . . . . . . . .

                                         O P I N I O N

                Rendered on the 18th day of November, 2011.

                                     . . . . . . . . .

Patricia K. Block, Atty. Reg. No. 0069539, 120 East Fourth Street,
Suite 800, Cincinnati, OH 45201
     Attorney for Plaintiff-Appellee

Richard A. Boucher, Atty. Reg. No. 0033614; Julia C. Kolber, Atty.
Reg. No. 0078855; Lauren E. Grant, Atty. Reg. No. 0087315, 12 W.
Monument Avenue, Suite 200, Dayton, OH 45402
     Attorneys for Defendants-Appellants

                                     . . . . . . . . .

GRADY, P.J.:

        {¶ 1} This is an appeal from a final order overruling a motion

filed pursuant to Civ.R. 60(B), asking the court to vacate a summary

judgment on a complaint in foreclosure.

        {¶ 2} On January 15, 2009, Countrywide Home Loans Servicing,
                                                                   2

L.P. 1 (“Countrywide”) filed a complaint in foreclosure against

Steven and Kimberlie Burden.    Before service of the complaint and

summons on the Burdens was perfected, Countrywide filed a motion

for default judgment on its foreclosure claim for relief on March

13, 2009.   The court granted a default judgment for Countrywide

on March 18, 2009.

     {¶ 3} The Burdens filed a “Response Brief” to Countrywide’s

complaint on July 20, 2009.   On December 3, 2009, Countrywide moved

for summary judgment on its claim in foreclosure.   The trial court

granted summary judgment for Countrywide on January 12, 2010.

     {¶ 4} On August 30, 2010, the Burdens filed a motion to vacate

the trial court’s January 12, 2010 order granting summary judgment

and decree in foreclose to Countrywide, arguing that (1) they have

meritorious defenses; (2) the trial court made a substantive

mistake of law when it retained jurisdiction and issued the January

12, 2010 order, despite the fact that the trial court previously

issued a final order on March 18, 2009, the default judgment, that

had not been vacated; and (3) the trial court’s January 12, 2010

order is estopped based on the doctrine of res judicata because

the March 18, 2009 order serves as a complete bar to any subsequent


        1
         On May 22, 2009, Countrywide filed a Civ.R. 25(C) motion
   to substitute BAC Home Loans Servicing LP as the party plaintiff.
    To minimize confusion, we will refer to Plaintiff throughout
   this opinion as Countrywide.
                                                                     3

action on the same claim or cause of action between the parties

or those in privity with them.

      {¶ 5} On March 23, 2011, the trial court overruled the Burdens’

Civ.R. 60(B) motion.     The trial court found that although the

Burdens had alleged a meritorious defense, they had not presented

any evidence or facts to the court in support of this defense.

Further, the trial court found that Defendants were not entitled

to relief under any of the grounds stated in Civ.R. 60(B)(1)-(5).

 The court stated that the March 18, 2009 default judgment was

void and of no effect because of a lack of service on Defendants,

and   therefore   the   court   retained   jurisdiction   to     grant

Countrywide’s motion for summary judgment on January 12, 2010.

Defendants filed a timely notice of appeal.

      FIRST ASSIGNMENT OF ERROR

      {¶ 6} “THE TRIAL COURT ERRED IN OVERRULING APPELLANTS’ MOTION

TO VACATE JUDGMENT BY NOT APPLYING CIV.R. 60(B).”

      {¶ 7} Defendants argue that the trial court erred when the

court overruled their motion for Civ.R. 60(B) relief from the

summary judgment for Plaintiff the court had granted, because the

prior default judgment, being a final order, operated to terminate

the court’s jurisdiction.

      {¶ 8} “Jurisdiction”   means   the   court’s   statutory    and

constitutional power to adjudicate a case.       State ex rel. Ohio
                                                                       4

Democratic Party v. Blackwell, 111 Ohio St.3d 246, 2006-Ohio-5202.

 Jurisdiction is complete when the subject matter of an action

and the parties to an action are properly before the court.        State

ex rel. Baker v. Toledo State Hospital (1951), 88 Ohio App.3d 345.

 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 perfected and the decision of every question thereafter arising

is but the exercise of the jurisdiction conferred.              State v.

Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245.             A judgment

entered by a court that proceeded without jurisdiction is void

ab initio.   Dollar Savings & Trust Co. v. Trocheck (1999), 132

Ohio App.3d 531, 535, and is a legal nullity for all purposes.

Hayes v. Kentucky Joint Stock Land Bank of Lexington (1932), 125

Ohio St. 359.

     {¶ 9} Defendants had not been served with a summons and

complaint in the action when the trial court entered a default

judgment against them.    Because they were not properly before the

court and parties to the action, the court lacked jurisdiction

to enter the default judgment.      Baker.    The default judgment was

therefore void and a legal nullity.          Trocheck; Hayes.    Being a

legal nullity, the default judgment could have no effect on the

court’s subsequent exercise of its jurisdiction in the action.

     {¶ 10} Defendants   remedied   the   court’s   lack   of   personal
                                                                         5

jurisdiction    when   they   filed   their   “Response   Brief,”    which

constitutes a voluntary appearance that put them properly before

the court.   Maryhew v. Yova (1984), 11 Ohio St.3d 154, 156.        Civ.R.

56 authorizes the court to rule on a motion for summary judgment

that either party then filed.

     {¶ 11} Defendants moved to vacate the summary judgment the court

granted on Plaintiff’s motion, pursuant to Civ.R. 60(B).               “To

prevail on [a] motion under Civ.R. 60(B), the movant must

demonstrate that: (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 more

than one year after the judgment, order or proceeding was entered

or taken.”     GTE Automatic Elec., Inc. v. ARC Industries, Inc.

(1976), 47 Ohio St.2d 146, 150 (citations omitted).

     {¶ 12} Relative to the second prong of GTE v. ARC, Defendants

argue that the trial court made a mistake of law when, following

the default judgment, the court granted Plaintiff’s motion for

summary judgment, because the default judgment was a final order

that terminated the court’s jurisdiction in the action.             As we

pointed out, the default judgment was void and a legal nullity,

so it had no effect on the court’s subsequent acquisition of
                                                                   6

jurisdiction when Defendants made their voluntary appearance.

     {¶ 13} Defendant’s lack of jurisdiction claim fails on its

merits.   Furthermore, as an alleged error of law, their claim

cannot offer grounds for relief under Civ.R. 60(B)(1)-(5).    Those

grounds for relief present a collateral attack on a final order

for reasons which are essentially equitable in nature.       Errors

of law are reviewable on appeal.

     {¶ 14} The first assignment of error is overruled.

     SECOND ASSIGNMENT OF ERROR

     {¶ 15} “THE TRIAL COURT ERRED IN OVERRULING APPELLANTS’ MOTION

TO VACATE JUDGMENT WITHOUT ADDRESSING APPELLANT’S RES JUDICATA

ARGUMENT.”

     {¶ 16} Defendants argue that the trial court’s March 18, 2009

order granting a default judgment to Countrywide serves as a

complete bar to the trial court subsequently entering summary

judgment in favor of Countrywide.   As we explained above, the March

18, 2009 order was void ab initio due to the lack of service of

process on Defendants.   Consequently, the March 18, 2009 order

cannot be used as a basis for the application of the doctrine of

res judicata.

     {¶ 17} The second assignment of error is overruled.        The

judgment of the trial court will be affirmed.
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FAIN, J., And HALL, J., concur.




Copies mailed to:

Patricia K. Block, Esq.
Richard A. Boucher, Esq.
Julia C. Kolber, Esq.
Lauren E. Grant, Esq.
Hon. Barbara P. Gorman
