[Cite as BAC Home Loans Servicing, L.P. v. Cromwell , 2011-Ohio-6413.]


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

BAC HOME LOANS SERVICING, LP                             C.A. No.        25755

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
TONYA CROMWELL, et al.                                   COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
        Appellants                                       CASE No.   CV 2009-09-6633

                                DECISION AND JOURNAL ENTRY

Dated: December 14, 2011



        MOORE, Judge.

        {¶1}    Marlon Redmond appeals from the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                                    I.

        {¶2}    On September 8, 2009, BAC Home Loans Servicing, L.P. (“BAC”) filed a

complaint for personal judgment against Tonya Cromwell, on a note which she executed, and for

foreclosure of a Twinsburg, Ohio property, on a mortgage which she and Redmond executed,

which secured the note.        BAC named Cromwell, Redmond, their unknown spouses, and

Mortgage Electronic Registration Systems, Inc. (MERS) as defendants and asked the trial court

to marshal potential liens held by all of the parties on the Twinsburg property. The copy of the

note attached to the complaint shows that the note was made payable to Countrywide Home

Loans, Inc (“Countrywide”). An allonge was attached to the note making the note payable to

BAC. The copy of the mortgage attached to the complaint named Countrywide as the lender, but
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named MERS as the nominee and mortgagee under the instrument. Attached to the copy of the

mortgage was a copy of a mortgage assignment, wherein MERS assigned the mortgage to BAC.

       {¶3}    On October 15, 2009, Redmond filed an answer generally denying the allegations

contained in the complaint and further stating he “would like to keep the home. There’s also a

confusion with the banks that filed the foreclosures[.]” No other party filed an answer to the

complaint.

       {¶4}    Thereafter, BAC filed a motion for summary judgment, to which Redmond did

not file a response. The trial court granted summary judgment in favor of BAC on December 18,

2009, and on the same date Redmond filed a motion to dismiss. On March 8, 2010, the court

entered a judgment entry of foreclosure. Thereafter, Redmond filed a Civ.R. 60(B) motion to

vacate the judgment, which the trial court denied on December 27, 2010.

       {¶5}    Redmond timely filed a notice of appeal pro se from the entry denying his motion

to vacate, and raises one assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DISMISSED
       REDMOND’S MOTION FOR RELIEF FROM JUDGMENT.”

       {¶6}    In his sole assignment of error, Redmond argues that the trial court erred in

denying his motion to vacate because BAC lacked standing to bring this action, which he further

argues deprived the trial court of jurisdiction. We do not agree.

       {¶7}    In regard to subject matter jurisdiction, the Ohio Supreme Court has stated:

       “Because subject-matter jurisdiction 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. It
       is a condition precedent to the court’s ability to hear the case. If a court acts
       without jurisdiction, then any proclamation by that court is void.” (Internal
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       citations and quotations omitted.) Pratts v. Hurley, 102 Ohio St.3d 81, 2004-
       Ohio-1980, at ¶11.

       {¶8}    Here, in Redmond’s motion to vacate, he essentially argues that BAC was not the

proper party in interest due to a purported invalid assignment of the mortgage from MERS to

BAC. However, “standing,” as the term has been used in regard to the “real party in interest”

requirement of Civ.R. 17, does not challenge a court’s subject matter jurisdiction. State ex rel.

Jones v. Suster (1998), 84 Ohio St.3d 70, 77. Under Ohio law “standing [is] jurisdictional only

in limited cases involving administrative appeals, where parties must meet strict standing

requirements in order to satisfy the threshold requirement for the administrative tribunal to

obtain jurisdiction.” Id. at fn. 4, citing Buckeye Foods v. Cuyahoga Cty. Bd. of Revision (1997),

78 Ohio St.3d 459, and New Boston Coke Corp. v. Tyler (1987), 32 Ohio St.3d 216, 218; see also

DaimlerChrysler Fin. Servs. N. Am. v. Hursell, 9th Dist. No. 24815, 2011-Ohio-571, at ¶23.

       {¶9}    Therefore, here, as the issue of standing is not a jurisdictional challenge which

can be raised at any time, we turn now to Redmond’s argument that the trial court erred in not

granting his Civ.R. 60(B) motion which raised the standing of BAC to bring the action. The

question of whether such relief should be granted is within the sound discretion of the trial court.

Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. This Court, therefore, will not reverse the trial

court's decision absent an abuse of discretion. Kay v. Marc Glassman, Inc. (1996), 76 Ohio

St.3d 18, 19-20. The phrase “‘abuse of discretion’ connotes more than an error of law or

judgment;” rather, “it implies that the trial court’s attitude [was] unreasonable, arbitrary or

unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. 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. (1993), 66 Ohio St.3d 619, 621.
                                                4


       {¶10} Civ.R. 60(B) states, in pertinent part:

       “On motion and upon such terms as are just, the court may relieve a party or his
       legal representative from a final judgment, order or proceeding for the following
       reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly
       discovered evidence which by due diligence could not have been discovered in
       time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore
       denominated intrinsic or extrinsic), misrepresentation or other misconduct of an
       adverse party; (4) the judgment has been satisfied, released or discharged, or a
       prior judgment upon which it is based has been reversed or otherwise vacated, or
       it is no longer equitable that the judgment should have prospective application; or
       (5) any other reason justifying relief from the judgment. The motion shall be
       made within a reasonable time, and for reasons (1), (2) and (3) not more than one
       year after the judgment, order or proceeding was entered or taken. A motion
       under this subdivision (B) does not affect the finality of a judgment or suspend its
       operation.”

       {¶11} In order to prevail on a motion for relief from judgment pursuant to Civ.R. 60(B),

the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement to relief under

one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) timeliness of the motion. GTE

Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, paragraph two of the

syllabus. If any of these three requirements is not met, the motion is properly overruled. Strack

v. Pelton (1994), 70 Ohio St.3d 172, 174.

       {¶12} Here, Redmond based his motion on his allegation that MERS, as nominee on the

mortgage, lacked authority to assign the mortgage, causing any purported assignment by MERS

to BAC to be invalid. Based upon this, Redmond argued that BAC lacked standing to prosecute

this matter.    Redmond relied upon Civ.R. 60(B)(3), which pertains to fraud and

misrepresentation of the opposing party. However, the trial court, relying on Countywide Home

Loans Servicing, L.P. v. Murphy-Kesling, 9th Dist. No. 25297, 2010-Ohio-6000, stated that “bare

allegations that a bank in a foreclosure action committed fraudulent acts and misrepresentations

are insufficient to proceed with a Motion to Vacate Judgment.”           Further, the trial court

determined that Redmond’s arguments should have been addressed in a memorandum in
                                                 5


response to BAC’s motion for summary judgment and noted that Redmond could have raised his

challenges in a timely filed appeal from the trial court’s order approving summary judgment and

entering foreclosure.   See Citibank (S. Dakota), N.A. v. Masters, 9th Dist. No. 07CA0055-M,

2008-Ohio-1001, at ¶16 (holding that “[a] Civ.R. 60(B) motion may not serve as a substitute for

a timely filed appeal”), citing Marchi v. Marchi, 12th Dist. No. CA2004-05-057, 2005-Ohio-

4055, at ¶8.

       {¶13} We conclude that the trial court’s denial of Redmond’s Civ.R. 60(B) motion was

not arbitrary, unreasonable, or unconscionable. Accordingly, the trial court did not abuse its

discretion in denying Redmond’s motion, and his sole assignment of error is overruled.

                                                III.

       {¶14} Redmond’s assignment of error is overruled.           The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       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(E). 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 Appellant.




                                             CARLA MOORE
                                             FOR THE COURT



BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY

CARR, J.
CONCURS IN JUDGMENT ONLY


APPEARANCES:

MARLON REDMOND, Attorney at Law, for Appellant.

C. SCOTT CASTERLINE, Attorney at Law, for Appellee.
