[Cite as EMC Mtge. Corp. v. Atkinson, 2013-Ohio-782.]


STATE OF OHIO                   )                        IN THE COURT OF APPEALS
                                )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

EMC MORTGAGE CORPORATION                                 C.A. No.    25968

          Appellee

          v.                                             APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
ROBERT W. ATKINSON, JR., et al.                          COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
          Appellant                                      CASE No.   CV 2003 04 2401

                                DECISION AND JOURNAL ENTRY

Dated: March 6, 2013



          BELFANCE, Judge.

          {¶1}   Defendant-Appellant Robert Atkinson, Jr. appeals from the ruling of the Summit

County Court of Common Pleas denying his Civ.R. 60(B) motion. For the reasons set forth

below, we vacate the judgment and remand the matter for proceedings consistent with this

opinion.

                                                    I.

          {¶2}   The relevant history of this matter has been previously summarized in a prior

appeal:

          EMC Mortgage Corporation (“EMC”) brought a foreclosure action against Robert
          Atkinson. In October 2008, EMC and Mr. Atkinson signed an Agreed Judgment
          Decree, which the trial court entered as its judgment. Under the terms of the
          Agreed Judgment Decree, Mr. Atkinson promised to pay EMC $18,000 by
          December 15, 2008. If he did not, EMC could immediately execute on the
          Agreed Judgment Decree. Mr. Atkinson did not pay EMC $18,000 by December
          15, 2008, but attempted to send the payment in February 2009. When EMC
          rejected the payment and executed on the Agreed Judgment Decree, Mr. Atkinson
          moved for relief from judgment under Rule 60(B) of the Ohio Rules of Civil
          Procedure. Following a hearing, the trial court determined that equity required it
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       to modify the Agreed Judgment Decree to change the due date for the payment
       from December 15, 2008, to February 12, 2009. EMC [] appealed, arguing that
       the trial court incorrectly modified the Agreed Judgment Decree. Mr. Atkinson []
       cross-appealed, arguing that the court should have held an evidentiary hearing on
       his motion for relief from judgment. We reverse[d] because the trial court did not
       have inherent equitable power to modify the decree and it failed to determine
       whether Mr. Atkinson was entitled to relief under Civil Rule 60(B).

EMC Mtge. Co., Inc. v. Atkinson, 9th Dist. No. 2567, 2011-Ohio-59, ¶ 1.

       {¶3}    Upon remand, the trial court conducted a hearing on Mr. Atkinson’s Civ.R. 60(B)

motion.   The trial court, thereafter, issued an entry denying Mr. Atkinson’s motion.        Mr.

Atkinson appealed, raising a single assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT’S MAY 9, 2011, JUDGMENT ENTRY DENYING MR.
       ATKINSON’S CIVIL RULE 60(B) MOTION TO VACATE WAS CONTRARY
       TO LAW; AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE;
       AND/OR CONSTITUTED AN ABUSE OF DISCRETION AND MUST BE
       REVERSED.

       {¶4}    Mr. Atkinson asserts in his sole assignment of error that the trial court erred in

denying his Civ.R. 60(B) motion to vacate the agreed judgment decree. We agree that Mr.

Atkinson is entitled to relief from judgment.

       {¶5}    Upon review of the record on appeal, this Court questioned whether EMC had

standing to file an action in foreclosure at the time it filed its complaint. See Fed. Home Loan

Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 28. Thus, this Court issued

an order requiring EMC to respond and demonstrate its standing. EMC failed to do so.

       {¶6}    The Supreme Court of Ohio has recently held that “[s]tanding is a jurisdictional

matter and, therefore, must be established at the time the complaint is filed.”   Bank of Am. v.

Kuchta, 9th Dist. No. 12CA0025-M, 2012-Ohio-5562, ¶ 13, citing Schwartzwald at ¶ 24. “The
                                                  3


lack of standing at the commencement of a foreclosure action requires dismissal of the

complaint[.]” Schwartzwald at ¶ 40. “[H]owever, that dismissal is not an adjudication on the

merits and is therefore without prejudice.” Id. As EMC has not established it had standing to

bring this action at the time it filed its complaint in foreclosure, the judgment against Mr.

Atkinson cannot stand. See id.; Kuchta at ¶ 15.

       {¶7}    In light of the foregoing, we can only conclude that Mr. Atkinson is entitled to

have the agreed judgment entry of foreclosure vacated. See Kuchta at ¶ 15. Further, the matter

is remanded so that the trial court can apply Schwartzwald.

                                                III.

       {¶8}    In light of the foregoing, we reverse the judgment of the Summit County Court of

Common Pleas and remand the matter so that the trial court can apply Schwartzwald.

                                                                               Judgment vacated,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellee.




                                                 EVE V. BELFANCE
                                                 FOR THE COURT



MOORE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JAMES K. REED, Attorney at Law, for Appellant.

ERIC T. DEIGHTON, Attorney at Law, for Appellee.
