[Cite as EMC Mtge. Corp. v. Atkinson, 2013-Ohio-782.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
EMC MORTGAGE CORPORATION C.A. No. 25968
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ROBERT W. ATKINSON, JR., et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CV 2003 04 2401
DECISION AND JOURNAL ENTRY
Dated: March 6, 2013
BELFANCE, Judge.
{¶1} Defendant-Appellant Robert Atkinson, Jr. appeals from the ruling of the Summit
County Court of Common Pleas denying his Civ.R. 60(B) motion. For the reasons set forth
below, we vacate the judgment and remand the matter for proceedings consistent with this
opinion.
I.
{¶2} The relevant history of this matter has been previously summarized in a prior
appeal:
EMC Mortgage Corporation (“EMC”) brought a foreclosure action against Robert
Atkinson. In October 2008, EMC and Mr. Atkinson signed an Agreed Judgment
Decree, which the trial court entered as its judgment. Under the terms of the
Agreed Judgment Decree, Mr. Atkinson promised to pay EMC $18,000 by
December 15, 2008. If he did not, EMC could immediately execute on the
Agreed Judgment Decree. Mr. Atkinson did not pay EMC $18,000 by December
15, 2008, but attempted to send the payment in February 2009. When EMC
rejected the payment and executed on the Agreed Judgment Decree, Mr. Atkinson
moved for relief from judgment under Rule 60(B) of the Ohio Rules of Civil
Procedure. Following a hearing, the trial court determined that equity required it
2
to modify the Agreed Judgment Decree to change the due date for the payment
from December 15, 2008, to February 12, 2009. EMC [] appealed, arguing that
the trial court incorrectly modified the Agreed Judgment Decree. Mr. Atkinson []
cross-appealed, arguing that the court should have held an evidentiary hearing on
his motion for relief from judgment. We reverse[d] because the trial court did not
have inherent equitable power to modify the decree and it failed to determine
whether Mr. Atkinson was entitled to relief under Civil Rule 60(B).
EMC Mtge. Co., Inc. v. Atkinson, 9th Dist. No. 2567, 2011-Ohio-59, ¶ 1.
{¶3} Upon remand, the trial court conducted a hearing on Mr. Atkinson’s Civ.R. 60(B)
motion. The trial court, thereafter, issued an entry denying Mr. Atkinson’s motion. Mr.
Atkinson appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT’S MAY 9, 2011, JUDGMENT ENTRY DENYING MR.
ATKINSON’S CIVIL RULE 60(B) MOTION TO VACATE WAS CONTRARY
TO LAW; AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE;
AND/OR CONSTITUTED AN ABUSE OF DISCRETION AND MUST BE
REVERSED.
{¶4} Mr. Atkinson asserts in his sole assignment of error that the trial court erred in
denying his Civ.R. 60(B) motion to vacate the agreed judgment decree. We agree that Mr.
Atkinson is entitled to relief from judgment.
{¶5} Upon review of the record on appeal, this Court questioned whether EMC had
standing to file an action in foreclosure at the time it filed its complaint. See Fed. Home Loan
Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 28. Thus, this Court issued
an order requiring EMC to respond and demonstrate its standing. EMC failed to do so.
{¶6} The Supreme Court of Ohio has recently held that “[s]tanding is a jurisdictional
matter and, therefore, must be established at the time the complaint is filed.” Bank of Am. v.
Kuchta, 9th Dist. No. 12CA0025-M, 2012-Ohio-5562, ¶ 13, citing Schwartzwald at ¶ 24. “The
3
lack of standing at the commencement of a foreclosure action requires dismissal of the
complaint[.]” Schwartzwald at ¶ 40. “[H]owever, that dismissal is not an adjudication on the
merits and is therefore without prejudice.” Id. As EMC has not established it had standing to
bring this action at the time it filed its complaint in foreclosure, the judgment against Mr.
Atkinson cannot stand. See id.; Kuchta at ¶ 15.
{¶7} In light of the foregoing, we can only conclude that Mr. Atkinson is entitled to
have the agreed judgment entry of foreclosure vacated. See Kuchta at ¶ 15. Further, the matter
is remanded so that the trial court can apply Schwartzwald.
III.
{¶8} In light of the foregoing, we reverse the judgment of the Summit County Court of
Common Pleas and remand the matter so that the trial court can apply Schwartzwald.
Judgment vacated,
and cause remanded.
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(C). 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.
4
Costs taxed to Appellee.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
JAMES K. REED, Attorney at Law, for Appellant.
ERIC T. DEIGHTON, Attorney at Law, for Appellee.