[Cite as Mulby v. Poptic, 2012-Ohio-5731.]




         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 98324




                         ANNETTE MULBY, ET AL.
                                                      PLAINTIFFS-APPELLEES

                                                vs.

                          ALAN M. POPTIC, ET AL.
                                                      DEFENDANTS-APPELLANTS




                                             JUDGMENT:
                                              AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                    Case No. CV-505225

       BEFORE:          Keough, J., Cooney, P.J., and E. Gallagher, J.

       RELEASED AND JOURNALIZED: December 6, 2012

ATTORNEY FOR APPELLANT

J. Charles Ruiz-Bueno
Charles Ruiz-Bueno Co., LPA
36130 Ridge Road
Willoughby, OH 44094


ATTORNEY FOR APPELLEES

Stephen P. Leiby
Leiby Hanna Rasnick Towne
Evanchan Palmisano & Hobson, LLC
388 South Main St., Suite 402
Akron, OH 44311


KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Alan Poptic (“Poptic”), 1 appeals from the

trial court’s April 2012 judgment entry of foreclosure that granted summary

judgment to plaintiffs-appellees, Annette Mulby, et al. (“the Mulbys”), and

from the decree confirming the sale of the foreclosed property. Finding no

merit to the appeal, we affirm.




        This appeal initially named both Alan and Joseph Poptic (Alan’s father) as appellants. This
       1


court granted Joseph’s joint motion with the Mulbys to dismiss him because he never consented to
being a party to this appeal nor to being represented by Poptic’s counsel.
         {¶2} This case originated in July 2003, when the Mulbys filed a

foreclosure action against the Poptics in an attempt to collect on an

outstanding debt. The debt was memorialized by a note that was secured by

a mortgage on Poptic’s residence.            In May 2005, the trial court overruled

Poptic’s objections and adopted the magistrate’s decision, granting summary

judgment to the Mulbys and ordering sale of the property. Poptic filed an

appeal, but this court dismissed his appeal for lack of a final appealable order

pursuant to R.C. 2505.02. Mulby v. Poptic, 8th Dist. No. 86582 (July 29,

2005) (“Poptic I”).

         {¶3} In May 2006, a second magistrate’s decision was issued, to which

Poptic again filed his objections.             On August 30, 2006, the trial court

overruled his objections and adopted the magistrate’s decision, once again

ordering the sale of the property. On October 2, 2006, Poptic appealed the

trial court’s order; this court dismissed Poptic’s appeal as untimely, pursuant

to App.R. 4(A). Mulby v. Poptic, 8th Dist. No. 88810 (Mar. 12, 2007) (“Poptic

II”).2

         {¶4} Poptic filed a motion to stay the sale, which was denied. The

property was sold at sheriff’s sale in 2007; Poptic was the winning bidder.

Poptic filed a motion to stay the confirmation of sale, which was denied. The


          Poptic’s motion for reconsideration was denied, pursuant to App.R. 14(A) and Murray v.
         2


Ohio Bur. of Emp. Servs., 8th Dist. No. 67428, 1994 Ohio App LEXIS 5954 (Dec. 29, 1994).
confirmation of sale was issued on June 30, 2008, but vacated the next day

due to service issues. No confirmation of sale was ever properly issued.

      {¶5} In August 2008, Poptic filed a motion for relief from judgment

from the order of foreclosure. A hearing was held on the motion in April

2009; the magistrate subsequently denied the motion, issuing a written

decision. Objections were filed to the magistrate’s decision, and a hearing was

held on the objections in March and April 2011. In May 2011, the trial court

overruled Poptic’s objections, and denied Poptic’s motion. In addition, the

court granted the Mulbys’ motion for confirmation of sale.       However, no

confirmation of sale was issued.

      {¶6} In March 2012, Poptic appealed from the trial court’s denial of his

motion for relief from judgment and the granting of the Mulbys’ motion to

confirm the sale of property. This court dismissed the appeal for lack of a

final appealable order and indicated that after nine years of litigation, the

trial court had yet to issue a final, separate order of foreclosure and a final

order of confirmation that comported with R.C. 2329.31. Mulby v. Poptic, 8th

Dist. No. 96863, 2012-Ohio-1037, ¶11 (“Poptic III”).

      {¶7} In April 2012, the trial court entered a separate order of

foreclosure, adopting the magistrate’s decision from May 2006, and an order

of confirmation in compliance with R.C. 2329.31.
      {¶8} Poptic now appeals from these two entries, raising two

assignments of error.     He makes no argument regarding the trial court’s

denial of his motion for relief from judgment.

                                     Standing

      {¶9} In his first assignment of error, Poptic argues that the Mulbys

never produced evidence that the promissory note, from which the mortgage

arises, was ever assigned to them and accordingly lacked standing to invoke

the trial court’s jurisdiction in this foreclosure action.

      {¶10} Recently, in Fed. Home Loan Mtge. Corp. v. Schwartzwald, __

Ohio St.3d __, 2012-Ohio-5017, __ N.E.2d __, the Ohio Supreme Court held

that standing in a foreclosure action is a “jurisdictional requirement” and that

“standing to sue is required to invoke the jurisdiction of the common pleas

court.”   Id. at ¶ 22, 24. Furthermore, quoting New Boston Coke Corp. v.

Tyler, 32 Ohio St.3d 216, 218, 513 N.E.2d 302 (1987), the Supreme Court

stated, “‘the issue of standing, inasmuch as it is jurisdictional in nature, may

be raised at any time during the pendency of the proceedings.’” Accordingly,

although Poptic did not raise a standing issue in his earlier appeals, because

standing is jurisdictional and may be raised at any time, we address this

assignment of error on its merits. See BAC Home Loans Servicing L.P. v.

Komorowski, 8th Dist. No. 96631, 2012-Ohio-1341, ¶ 18            (“the issue of

standing may be raised at any time during the pendency of the proceedings
because it affects the court’s jurisdiction.”); Pratts v. Hurley, 102 Ohio St.3d

81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11 (“[J]urisdiction 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.”).

      {¶11} Our review of the record demonstrates that the evidence is clear

that the successor trustees of the Boden Family Trust assigned the mortgage

and “the indebtedness secured thereby” (which can only mean the note) to the

Mulbys.   Poptic admitted in his motion for summary judgment that the

mortgage had been assigned to the Mulbys. Further, the successor trustees,

who are defendants in this action, admitted in their answer that the note was

assigned and transferred to the Mulbys. The assignment was filed prior to

commencement of this suit.      Accordingly, the Mulbys were holders and/or

transferees of the note when the complaint was filed and, therefore, had

standing to enforce the note.

      {¶12} The first assignment of error is therefore overruled.

                      Confirmation of the Sheriff’s Sale

      {¶13} In his second assignment of error, Poptic argues that the trial

court erred in confirming the sheriff’s sale in its April 27, 2012 entry because

the sheriff’s sale proceeded pursuant to the August 2006 order that was not a

final appealable order.
      {¶14} R.C. 2329.31 governs confirmation of judicial foreclosure sales

and provides as follows:

      Upon return of any writ of execution for the satisfaction of which
      lands and tenements have been sold, on careful examination of
      the proceedings of the officer making the sale, if the court of
      common pleas finds that the sale was made, in all respects, in
      conformity with sections 2329.01 to 2329.61, inclusive, of the
      Revised Code, it shall direct the clerk of the court of common
      pleas to make an entry on the journal that the court is satisfied of
      the legality of such sale, and that the officer make to the
      purchaser a deed for the lands and tenements. Nothing in this
      section prevents the court of common pleas from staying the
      confirmation of the sale to permit a property owner time to
      redeem the property or for any other reason that it determines is
      appropriate. In those instances, the sale shall be confirmed
      within thirty days after the termination of any stay of
      confirmation.

      The officer making the sale shall require the purchaser, including
      a lienholder, to pay within thirty days of the confirmation of the
      sale the balance due on the purchase price of the lands and
      tenements.

“While the statute speaks in mandatory terms, it has long been recognized

that the trial court has discretion to grant or deny confirmation[.]” Ohio Sav.

Bank v. Ambrose, 56 Ohio St.3d 53, 55, 563 N.E.2d 1388 (1990). The issue,

then, is whether the trial court abused its discretion under the circumstances.

      {¶15} Poptic argues that because the court’s order of August 2006

overruling his objections and adopting the May 2006 magistrate’s decision

was not a final appealable order, the sheriff’s sale is now a nullity.       We

disagree.   Whether an order is appealable merely relates to this court’s
jurisdiction to review it at that time; the fact that the order was not

appealable does not render it a nullity. Therefore, regardless of whether the

order could have been appealed, the August 2006 order still stands as a valid

order from which the property was properly sold at sheriff’s sale.

      {¶16} Accordingly, we find no abuse of discretion in the trial court’s

decision to confirm the sheriff’s sale. Poptic’s second assignment of error is

overruled.

      {¶17} 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.


____________________________________________________
KATHLEEN ANN KEOUGH, JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
COLLEEN CONWAY COONEY, P.J., CONCURS IN JUDGMENT ONLY
WITH SEPARATE OPINION.

COLLEEN CONWAY COONEY, P.J., CONCURRING IN JUDGMENT

ONLY:
      {¶18} I concur in judgment only because I would reach a glaring

procedural flaw that must be addressed.

      {¶19} Poptic admitted in his answer that the Mulbys are the owners

and holders of the note.    He never raised standing until his Civ.R. 60(B)

motion in 2008, two years after his appeal of the 2006 order of foreclosure was

dismissed as untimely.     I realize standing is a jurisdictional issue, but

waiting two years after a final judgment of foreclosure to raise this meritless

argument should not be condoned.

      {¶20} This court went too far in Poptic III in finding that the trial court

had yet to issue a final, separate order of foreclosure. The August 2006 order

constituted that final separate order that Poptic failed to appeal timely. He

should not be allowed a six-year delay in appealing the order when his 33-day

delay was held untimely.

      {¶21} Furthermore, I find the recent decision in Fed. Home Loan Mtge.

Corp. v. Schwartzwald to be distinguishable. The question in that case was

whether the lack of standing at the commencement of a foreclosure action

may be cured by an assignment of the note and mortgage prior to the entry of

judgment. ___ Ohio St.3d ___, 2012-Ohio-5017, ¶ 19. In the instant case,

Poptic admitted in both his answer to the complaint and in his motion for

summary judgment that the successor trustees of the Boden Family Trust

assigned the mortgage and “the indebtedness secured thereby” to the Mulbys.
 As   the   majority    recognized,   “the   assignment   was   filed   prior   to

commencement of this suit.” Therefore, because standing was not an issue

nor any “late assignment” of the note, I find the Fed. Home Loan Mtge. Corp.

case distinguishable.
