Countrywide Home Loans Servicing, L.P. v. Burden ( 2011 )

[Cite as Countrywide Home Loans Servicing, L.P. v. Burden, 2011-Ohio-5949.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
COUNTRYWIDE HOME LOANS :
SERVICING, L.P.
Plaintiff-Appellee : C.A. CASE NO. 24569
vs. : T.C. CASE NO. 09CV398
KIMBERLIE BURDEN, ET AL. : (Civil Appeal from
Common Pleas Court)
Defendants-Appellants :
. . . . . . . . .
O P I N I O N
Rendered on the 18th day of November, 2011.
. . . . . . . . .
Patricia K. Block, Atty. Reg. No. 0069539, 120 East Fourth Street,
Suite 800, Cincinnati, OH 45201
Attorney for Plaintiff-Appellee
Richard A. Boucher, Atty. Reg. No. 0033614; Julia C. Kolber, Atty.
Reg. No. 0078855; Lauren E. Grant, Atty. Reg. No. 0087315, 12 W.
Monument Avenue, Suite 200, Dayton, OH 45402
Attorneys for Defendants-Appellants
. . . . . . . . .
GRADY, P.J.:
{¶ 1} This is an appeal from a final order overruling a motion
filed pursuant to Civ.R. 60(B), asking the court to vacate a summary
judgment on a complaint in foreclosure.
{¶ 2} On January 15, 2009, Countrywide Home Loans Servicing,
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L.P. 1 (“Countrywide”) filed a complaint in foreclosure against
Steven and Kimberlie Burden. Before service of the complaint and
summons on the Burdens was perfected, Countrywide filed a motion
for default judgment on its foreclosure claim for relief on March
13, 2009. The court granted a default judgment for Countrywide
on March 18, 2009.
{¶ 3} The Burdens filed a “Response Brief” to Countrywide’s
complaint on July 20, 2009. On December 3, 2009, Countrywide moved
for summary judgment on its claim in foreclosure. The trial court
granted summary judgment for Countrywide on January 12, 2010.
{¶ 4} On August 30, 2010, the Burdens filed a motion to vacate
the trial court’s January 12, 2010 order granting summary judgment
and decree in foreclose to Countrywide, arguing that (1) they have
meritorious defenses; (2) the trial court made a substantive
mistake of law when it retained jurisdiction and issued the January
12, 2010 order, despite the fact that the trial court previously
issued a final order on March 18, 2009, the default judgment, that
had not been vacated; and (3) the trial court’s January 12, 2010
order is estopped based on the doctrine of res judicata because
the March 18, 2009 order serves as a complete bar to any subsequent
1
On May 22, 2009, Countrywide filed a Civ.R. 25(C) motion
to substitute BAC Home Loans Servicing LP as the party plaintiff.
To minimize confusion, we will refer to Plaintiff throughout
this opinion as Countrywide.
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action on the same claim or cause of action between the parties
or those in privity with them.
{¶ 5} On March 23, 2011, the trial court overruled the Burdens’
Civ.R. 60(B) motion. The trial court found that although the
Burdens had alleged a meritorious defense, they had not presented
any evidence or facts to the court in support of this defense.
Further, the trial court found that Defendants were not entitled
to relief under any of the grounds stated in Civ.R. 60(B)(1)-(5).
The court stated that the March 18, 2009 default judgment was
void and of no effect because of a lack of service on Defendants,
and therefore the court retained jurisdiction to grant
Countrywide’s motion for summary judgment on January 12, 2010.
Defendants filed a timely notice of appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 6} “THE TRIAL COURT ERRED IN OVERRULING APPELLANTS’ MOTION
TO VACATE JUDGMENT BY NOT APPLYING CIV.R. 60(B).”
{¶ 7} Defendants argue that the trial court erred when the
court overruled their motion for Civ.R. 60(B) relief from the
summary judgment for Plaintiff the court had granted, because the
prior default judgment, being a final order, operated to terminate
the court’s jurisdiction.
{¶ 8} “Jurisdiction” means the court’s statutory and
constitutional power to adjudicate a case. State ex rel. Ohio
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Democratic Party v. Blackwell, 111 Ohio St.3d 246, 2006-Ohio-5202.
Jurisdiction is complete when the subject matter of an action
and the parties to an action are properly before the court. State
ex rel. Baker v. Toledo State Hospital (1951), 88 Ohio App.3d 345.
Once a tribunal has jurisdiction over both the subject matter
of an action and the parties to it, the right to hear and determine
is perfected and the decision of every question thereafter arising
is but the exercise of the jurisdiction conferred. State v.
Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245. A judgment
entered by a court that proceeded without jurisdiction is void
ab initio. Dollar Savings & Trust Co. v. Trocheck (1999), 132
Ohio App.3d 531, 535, and is a legal nullity for all purposes.
Hayes v. Kentucky Joint Stock Land Bank of Lexington (1932), 125
Ohio St. 359.
{¶ 9} Defendants had not been served with a summons and
complaint in the action when the trial court entered a default
judgment against them. Because they were not properly before the
court and parties to the action, the court lacked jurisdiction
to enter the default judgment. Baker. The default judgment was
therefore void and a legal nullity. Trocheck; Hayes. Being a
legal nullity, the default judgment could have no effect on the
court’s subsequent exercise of its jurisdiction in the action.
{¶ 10} Defendants remedied the court’s lack of personal
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jurisdiction when they filed their “Response Brief,” which
constitutes a voluntary appearance that put them properly before
the court. Maryhew v. Yova (1984), 11 Ohio St.3d 154, 156. Civ.R.
56 authorizes the court to rule on a motion for summary judgment
that either party then filed.
{¶ 11} Defendants moved to vacate the summary judgment the court
granted on Plaintiff’s motion, pursuant to Civ.R. 60(B). “To
prevail on [a] motion under Civ.R. 60(B), the movant must
demonstrate that: (1) the party has a meritorious defense or claim
to present if relief is granted; (2) the party is entitled to relief
under one of the grounds stated in Civ.R. 60(B)(1) through (5);
and (3) the motion is made within a reasonable time, and, where
the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more
than one year after the judgment, order or proceeding was entered
or taken.” GTE Automatic Elec., Inc. v. ARC Industries, Inc.
(1976), 47 Ohio St.2d 146, 150 (citations omitted).
{¶ 12} Relative to the second prong of GTE v. ARC, Defendants
argue that the trial court made a mistake of law when, following
the default judgment, the court granted Plaintiff’s motion for
summary judgment, because the default judgment was a final order
that terminated the court’s jurisdiction in the action. As we
pointed out, the default judgment was void and a legal nullity,
so it had no effect on the court’s subsequent acquisition of
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jurisdiction when Defendants made their voluntary appearance.
{¶ 13} Defendant’s lack of jurisdiction claim fails on its
merits. Furthermore, as an alleged error of law, their claim
cannot offer grounds for relief under Civ.R. 60(B)(1)-(5). Those
grounds for relief present a collateral attack on a final order
for reasons which are essentially equitable in nature. Errors
of law are reviewable on appeal.
{¶ 14} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 15} “THE TRIAL COURT ERRED IN OVERRULING APPELLANTS’ MOTION
TO VACATE JUDGMENT WITHOUT ADDRESSING APPELLANT’S RES JUDICATA
ARGUMENT.”
{¶ 16} Defendants argue that the trial court’s March 18, 2009
order granting a default judgment to Countrywide serves as a
complete bar to the trial court subsequently entering summary
judgment in favor of Countrywide. As we explained above, the March
18, 2009 order was void ab initio due to the lack of service of
process on Defendants. Consequently, the March 18, 2009 order
cannot be used as a basis for the application of the doctrine of
res judicata.
{¶ 17} The second assignment of error is overruled. The
judgment of the trial court will be affirmed.
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FAIN, J., And HALL, J., concur.
Copies mailed to:
Patricia K. Block, Esq.
Richard A. Boucher, Esq.
Julia C. Kolber, Esq.
Lauren E. Grant, Esq.
Hon. Barbara P. Gorman