State ex rel. Davet v. Sutula , 2011 Ohio 2803 ( 2011 )

[Cite as State ex rel. Davet v. Sutula, 2011-Ohio-2803.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96548
STATE OF OHIO, EX REL.
RICHARD F. DAVET
RELATOR
vs.
HONORABLE JUDGE KATHLEEN ANN SUTULA
RESPONDENT
JUDGMENT:
COMPLAINT DISMISSED
Writ of Prohibition/Mandamus
Motion Nos. 444036 and 444136
Order No. 444190
RELEASE DATE: June 7, 2011
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FOR RELATOR
Richard F. Davet, pro se
P.O. Box 10092
Cleveland, Ohio 44110
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: Charles E. Hannan, Jr.
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Relator, Richard F. Davet, is a defendant in Nationsbanc Mtge. Corp. v. Davet,
Cuyahoga Cty. Court of Common Pleas Case No. CV-304224, a foreclosure action that has
been assigned to respondent judge of the court of common pleas. Davet avers that
respondent has continuously lacked jurisdiction over Case No. CV-304224 because plaintiff
Nationsbanc “was not the owner or assignee with right of ownership when it filed” Case No.
CV-304224 in 1996. Complaint, ¶2. He requests that this court: compel respondent to
show cause regarding her jurisdiction to proceed in Case No. CV-304224; issue a writ of
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prohibition preventing respondent from issuing further orders (except to disburse to him
certain funds on hold with the treasurer as unclaimed funds); and issue a writ of mandamus
compelling respondent to vacate all prior orders.
{¶ 2} Respondent has filed a motion to dismiss. For the reasons stated below, we
grant the motion to dismiss.
{¶ 3} Davet correctly observes that this court and others have held that the party filing
a foreclosure action must own the mortgage. “The case law in the 8th District is simple and
clear; the putative mortgagee must own the mortgage at the time of the filing of the complaint,
otherwise it lacks standing. Wells Fargo Bank, N.A. v. Jordan, Cuyahoga App. No. 91675,
2009-Ohio-1092.” Deutsche Bank Natl. Trust Co. v. Triplett, Cuyahoga App. No. 94924,
2011-Ohio-478, ¶12. Davet erroneously concludes, however, that this case law requires
relief in prohibition.
{¶ 4} The criteria for the issuance of a writ of prohibition are well-established. “In
order to be entitled to a writ of prohibition, [relator] had to establish that (1) the [respondent]
is about to exercise judicial or quasi-judicial power, (2) the exercise of such power is
unauthorized by law, and (3) denial of the writ will cause injury to [relator] for which no other
adequate remedy in the ordinary course of law exists. State ex rel. White v. Junkin (1997),
80 Ohio St.3d 335, 336, 686 N.E.2d 267, 268.” State ex rel. Wright v. Ohio Bur. of Motor
Vehicles, 87 Ohio St.3d 184, 185, 1999-Ohio-1041, 718 N.E.2d 908. If, however, the
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respondent court is patently and unambiguously without jurisdiction, the relator need not
demonstrate the lack of an adequate remedy in the ordinary course of the law. State ex rel.
Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d
500, at ¶15.
{¶ 5} Davet contends that Nationsbanc lacked standing to file Case No. CV-304224.
He argues that, as a result of Nationsbanc’s lack of standing, respondent has lacked
jurisdiction over the underlying case.
{¶ 6} This court recently considered whether a plaintiff’s lack of standing deprives
the trial court of jurisdiction to hear a foreclosure action.
{¶ 7} “We note there is a split in authority as to whether the issue of standing, or the
‘real party in interest’ defense, in a foreclosure action may be waived if not timely asserted.
See, e.g., JPMorgan Chase Bank Trustee v. Murphy, Montgomery App. No. 23927,
2010-Ohio-5285, ¶19 (standing can be waived); Mtge. Electronic Registration Sys., Inc. v.
Mosley, Cuyahoga App. No. 93170, 2010-Ohio-2886, ¶17 (standing is jurisdictional and
cannot be waived); Aurora Loan Servs., L.L.C. v. Car, Ashtabula App. No.2009-A-0026,
2010-Ohio-1157, ¶ 18 (standing waived); First Horizon Home Loan Corp. v. Roberts,
Cuyahoga App. No. 92367, 2010-Ohio-60 (standing waived).” CitiMortgage, Inc. v. Slack,
Cuyahoga App. No. 94899, 2011-Ohio-613, ¶10, n.3.
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{¶ 8} Davet premises his entire argument on the assumption that a trial court lacks
jurisdiction to hear a foreclosure action if the plaintiff lacks standing because it is not the
owner of the mortgage at the time of filing the complaint. Davet would have this court
conclude that respondent patently and unambiguously lacked jurisdiction because Nationsbanc
lacked standing to file Case No. CV-304224. As this court observed in CitiMortgage,
however, the question of whether a foreclosure plaintiff’s lack of standing is jurisdictional is
not settled. In fact, this court has issued opinions in 2010 and 2011 reaching differing
conclusions. See CitiMortgage, supra. In this action, therefore, we cannot conclude that
respondent patently and unambiguously lacked jurisdiction over Case No. CV-304224.
{¶ 9} Rather, Davet had an adequate remedy in the ordinary course of the law by way
of appeal and relief through an original action is inappropriate. “A trial court's decision on
the issue of standing is properly challenged in a postjudgment appeal rather than via
extraordinary writ. State ex rel. Smith v. Smith [(1996)], 75 Ohio St.3d [418,] 420, 662
N.E.2d [366,] 369; State ex rel. LTV Steel [(1992)], 64 Ohio St.3d [245,] 251, 594 N.E.2d
[616,] 621.” State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St.3d 70, 77, 701,
1998-Ohio-275, N.E.2d 1002, 1008. Because Davet had an adequate remedy by way of
appeal, we must deny his request for relief in prohibition.
{¶ 10} Davet has also requested relief in mandamus. The requirements for mandamus
are well established: (1) the relator must have a clear legal right to the requested relief, (2) the
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respondent must have a clear legal duty to perform the requested relief and (3) there must be
no adequate remedy at law. Mandamus may compel a court to exercise judgment or
discharge a function, but it may not control judicial discretion, even if that discretion is grossly
abused. Additionally, mandamus is not a substitute for appeal and does not lie to correct
errors and procedural irregularities in the course of a case. If the relator has or had an
adequate remedy, relief in mandamus is precluded — regardless of whether the relator used
the remedy. State ex rel. Smith v. Fuerst, Cuyahoga App. No. 86118, 2005-Ohio-3829, at ¶
4.
{¶ 11} As discussed above, Davet had an adequate remedy by way of appeal. The
existence of an adequate remedy precludes relief in mandamus as well.
{¶ 12} Accordingly, respondent’s motion to dismiss is granted. Relator to pay costs.
The clerk is directed to serve upon the parties notice of this judgment and its date of entry
upon the journal. Civ.R. 58(B).
Complaint dismissed.
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., CONCURS,
SEAN C. GALLAGHER, J., DISSENTS