[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
1
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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