[Cite as Bank of Am., N.A. v. Davidson, 2015-Ohio-479.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                         CLERMONT COUNTY




BANK OF AMERICA, N.A., Successor in                       :
Merger to BAC Home Loans Servicing, LP
f.k.a. Countrywide Home Loans Servicing,                  :   CASE NO. CA2014-04-029
LP,
                                                          :        OPINION
        Plaintiff-Appellee,                                         2/9/2015
                                                          :
   - vs -
                                                          :
FRED I. DAVIDSON, et al.,
                                                          :
        Defendants-Appellants.
                                                          :



       CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                          Case No. 2011 CVE 01435



McGlinchey Stafford, James W. Sandy, James S. Wertheim, 25550 Chagrin Blvd., Suite 406,
Cleveland, Ohio 44122, for plaintiff-appellee

Fred I. Davidson and Glenna M. Jenkins, 604 Mercury Drive, Cincinnati, Ohio 45244,
defendants-appellants, pro se



        PIPER, P.J.

        {¶ 1} Defendant-appellant, Fred Davidson, appeals a decision of the Clermont

County Court of Common Pleas vacating a decree of foreclosure and ordering dismissal of

the foreclosure complaint filed against him by plaintiff-appellee, Bank of America.

        {¶ 2} In 2011, Bank of America filed a complaint for foreclosure because of
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Davidson's undisputed failure to make mortgage payments. Bank of America then filed a

motion for summary judgment, arguing that it was entitled to foreclosure as a matter of law.

The trial court granted Bank of America's motion for summary judgment, and ordered

foreclosure. While Davidson did not file a direct appeal of the trial court's decision, he later

filed a motion with the trial court to vacate the decree of foreclosure, which the trial court

denied. Davidson appealed that decision to this court, and we affirmed the decision of the

trial court. Bank of America, N.A. v Davidson, 12th Dist. Clermont No. CA2013-03-024,

(Accelerated Calendar Judgment Entry).

       {¶ 3} Approximately a year after this court affirmed the trial court's decision, Davidson

filed a motion captioned "Void ab Initio" with the trial court, alleging that Bank of America

lacked standing to seek foreclosure of his property. Bank of America opposed the motion,

and provided the trial court with evidence that Davidson's mortgage had been assigned to it

prior to the filing of foreclosure. While waiting for the trial court's ruling on Davidson's motion,

Bank of America entered into a loan modification agreement with Davidson.

       {¶ 4} In order to proceed according to the terms of the loan modification, Bank of

America filed a motion to vacate the foreclosure judgment according to Civ.R. 60. Bank of

America also moved for a voluntary dismissal of its complaint, without prejudice, according to

Civ.R. 41(A)(2). Davidson opposed Bank of America's motion, arguing that the trial court had

not ruled on his motion challenging Bank of America's standing. The trial court then issued

an order in which it granted Bank of America's motions pursuant to Civ.R. 60 and 41(A)(2).

Within the entry, the trial court vacated the decree of foreclosure, denied Davidson's motion,

and dismissed the case without prejudice. Davidson now appeals, pro se, the trial court's

dismissal, raising the following assignments of error. Because Davidson's first and third

assignments of error are interrelated, we will address them together.

       {¶ 5} Assignment of Error No. 1:
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        {¶ 6} THE COURT ERRED WHEN THEY IGNORED THE CHALLENGE OF

JURISDICTION BY FAILING TO ADDRESS THE VOID AB INITIO FILING DATED

NOVEMBER 8, 2013.

        {¶ 7} Assignment of Error No. 3:

        {¶ 8} THE COURT ERRED IN ALLOWING THE PLAINTIFF TO DISMISS A CASE

WHEN THERE WERE OPEN JURISDICTIONAL CHALLENGES YET TO BE PROVEN.

        {¶ 9} Davidson argues in his first and third assignments of error that the trial court

erred by granting a voluntary dismissal of Bank of America's complaint because Bank of

America lacked standing to bring the foreclosure action, requiring the case be dismissed with

prejudice.

        {¶ 10} Civ.R. 41(A) governs the voluntary dismissal of actions. Voluntary dismissal

can occur in two ways: dismissal by agreement of the parties according to Civ.R. 41(A)(1) or

by order of the court according to Civ.R. 41(A)(2). When dismissal is ordered by the court

pursuant to Civ.R. 42(A)(2), the dismissal is ordered "upon such terms and conditions as the

court deems proper." Logsdon v. Nichols, 72 Ohio St.3d 124, 126 (1995). Regarding a

Civ.R. 41(A)(2) motion, "a dismissal on such a motion is within the sound discretion of the
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court and is reversible only for an abuse of discretion."                     Jones v. Williams, 12th Dist.

Clermont No. CA85-12-111, 1986 WL 9710, *3 (Sept. 8, 1986). A decision constitutes an

abuse of discretion only when it is found to be unreasonable, arbitrary, or unconscionable.


1. Voluntary dismissals pursuant to Civ.R. 41(A)(1) are generally not final appealable orders because they do
not constitute a ruling on the merits and are otherwise agreed to by the parties. However, when the dismissal is
ordered pursuant to Civ.R. 41(A)(2), the trial court's ruling "can be subject to appellate scrutiny at an appropriate
time." State ex rel. Die Co., Inc. v Court of Common Pleas Lake County, 11th Dist. Lake No. 2010-L-107, 2011-
Ohio-5232, ¶ 23. For example, the Ohio Supreme Court has held that the failure to follow procedural
requirements of a request for a Civ.R. 41(A)(2) dismissal can result in reversible error. Logsdon, 72 Ohio St.3d
124. Additionally, other courts have reviewed a trial court's decision on a Civ.R. 41(A)(2) motion to determine if
such a dismissal should be overturned as an abuse of discretion. See, e.g., Vistula Management Co. v.
Shoemake, 6th Dist. Lucas No. L-07-1204, 2008-Ohio-365, ¶ 17; Douthitt v. Garrison, 3 Ohio App.3d 254, 256
(9th Dist.1981).


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Hornsby v. Gosser, 12th Dist. Warren No. CA2013-12-134, 2015-Ohio-162, ¶ 8.

       {¶ 11} Davidson contends that the trial court should not have ordered voluntary

dismissal without prejudice because the trial court did not first address his motion regarding

Bank of America's standing. However, the record is clear that the trial court addressed

Davidson's motion on at least two occasions.

       {¶ 12} Davidson responded to Bank of America's motion for Civ.R. 41(A)(2) dismissal

and argued that it should be denied because of the standing issue. Within Davidson's

memorandum in opposition, Davidson requested a hearing for the specific purpose of

arguing his void ab initio motion. In response, the trial court expressly stated, "this matter is

before the court for consideration of a request for hearing on a filing captioned by the

defendant as 'void ab initio' which was filed on March 21, 2014. The court finds that the filing

referred to by the defendant is without merit and that the defendant is not entitled to a

hearing on this matter." Moreover, in its entry granting the Civ.R. 41(A)(2) dismissal, the trial

court expressly denied Davidson's motion.

       {¶ 13} The record is therefore clear that the trial court did not fail to address

Davidson's motion captioned "void ab initio." Instead, and on no less than two occasions, the

trial court expressly addressed the motion and denied the motion because Davidson's

challenge to Bank of America's standing lacked merit.

       {¶ 14} In regard to standing to bring a foreclosure action, "a party may establish that it

is the real party in interest with standing to invoke the jurisdiction of the common pleas court

when, 'at the time it files its complaint of foreclosure, it either (1) has had a mortgage

assigned or (2) is the holder of the note.'" SRMOF 2009-1 Trust v. Lewis, 12th Dist. Butler

Nos. CA2012-11-239, CA2013-05-068, 2014-Ohio-71, ¶ 15, quoting Bank of New York

Mellon v. Burke, 12th Dist. Butler No. CA2012-12-245, 2013-Ohio-2860. (Emphasis sic.)

       {¶ 15} As properly determined by the trial court, Bank of America had standing to bring
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the complaint of foreclosure, as Bank of America submitted evidence that it had been

assigned the mortgage prior to filing its foreclosure action. However, even if Bank of America

would not have had proper standing to bring the suit as Davidson claims, the result of the

case would have been exactly the same as what occurred here: dismissal without prejudice.

       {¶ 16} The Ohio Supreme Court made clear that "the lack of standing at the

commencement of a foreclosure action requires dismissal of the complaint; however, that

dismissal is not an adjudication on the merits and is therefore without prejudice." Federal

Home Loan Mtg. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 40. As such,

despite Davidson's argument that the case should have been dismissed with prejudice, the

trial court properly dismissed the case without prejudice.

       {¶ 17} Having found that the trial court addressed Davidson's motion and that the trial

court properly overruled the motion because Bank of America had standing, Davidson's first

and third assignments of error are overruled.

       {¶ 18} Assignment of Error No. 2:

       {¶ 19} THE COURT ERRED WITH FACTS AND LAW WHEN IT WAS INFORMED

THAT THE NOTARY SEAL MUST BE COMPLIANT WITH O.R.C. 147.04.

       {¶ 20} Davidson argues in his second assignment of error that the notary seal applied

to the mortgage assignment failed to comport with R.C. 147.04 and therefore the assignment

was invalid. However, we find that Davidson's challenge to the notary seal is barred by res

judicata.

       {¶ 21} Pursuant to the doctrine of res judicata, "a final judgment rendered by a court of

competent jurisdiction on the merits is conclusive as to the rights of the parties and their

privies, and, as to them, constitutes an absolute bar to a subsequent action involving the

same claim, demand or cause of action." Holzemer v. Urbanski, 86 Ohio St.3d 129, 132

(1999). Res judicata precludes a party from both relitigating issues already decided by a
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court of competent jurisdiction or raising matters that should have been brought by the party

in a prior action involving the same parties. Buckner v. Bank of New York, 12th Dist.

Clermont No. CA2013-07-053, 2014-Ohio-568, ¶ 38.

       {¶ 22} The record indicates that Bank of America moved for summary judgment on its

foreclosure complaint, and that the trial court ordered foreclosure after granting Bank of

America's motion. Davidson did not appeal that decision, although he could have. Davidson

then filed a motion to vacate the grant of summary judgment, which the trial court denied.

Davidson chose to appeal the trial court's denial of his motion to vacate, raising several

assignments of error. This court affirmed the trial court's decision, overruling each of

Davidson's assignments of error. However, Davidson did not challenge whether the notary

seal on the assignment was valid within a direct appeal from the trial court's grant of

summary judgment when he should have. Nor did Davidson challenge the validity of the

notary seal within his direct appeal of the trial court's denial of his motion to vacate. As such,

Davidson is barred by res judicata from now raising that issue.

       {¶ 23} Having found that Davidson's challenge to the notary seal is barred by res

judicata, his third assignment of error is overruled.

       {¶ 24} Assignment of Error No. 4:

       {¶ 25} THE COURT ERRED BY IGNORING JUDICIAL CANONS.

       {¶ 26} While Davidson argues on appeal that the trial court engaged in judicial

misconduct by ignoring several judicial canons, this court lacks jurisdiction to address claims

of judicial misconduct. Wilburn v. Wilburn, 169 Ohio App.3d 415, 2006-Ohio-5820, ¶ 10 (9th

Dist.). R.C. 2701.03 sets forth the process by which one may seek disqualification of a trial

court judge. However, allegations of judicial misconduct are "not cognizable on appeal, but

are a matter properly within the jurisdiction of the Disciplinary Counsel" because "the Chief

Justice of the Supreme Court of Ohio, or her designee, has exclusive jurisdiction to
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determine a claim that a common pleas judge is biased or prejudiced." Hendy v. Wright, 9th

Dist. Summit No. 26422, 2013-Ohio-5786, ¶ 7; Section 5(C), Article IV, Ohio Constitution.

      {¶ 27} As this court lacks jurisdiction to consider Davidson's allegations of judicial

misconduct, his fourth assignment of error is overruled.

      {¶ 28} Judgment affirmed.


      HENDRICKSON and M. POWELL, JJ., concur.




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