{¶ 15} I respectfully dissent from the majority's decision to dismiss this appeal. I believe that appellant has standing to bring this appeal and would review it on the merits.
{¶ 16} The majority concludes that appellant owned no interest in the property and therefore had no authority to challenge the foreclosure. It is uncontroverted *Page 234 that defendant Jacqueline Barksdale Williams had been deceased for nine months prior to plaintiff-appellee Deutsche Bank's filing of the underlying foreclosure action. It has long been established in law that following death, all real estate passes to the heirs. Upon that happening, the next of kin have an immediate beneficial interest in the real estate. Brownfieldv. Home Owners Loan Corp. (1942), 49 N.E.2d 92, 38 Ohio Law Abs. 30.
{¶ 17} It has been the law in this state for more than 150 years that in an action to foreclose a mortgage brought after the death of the mortgagor, the heirs and devisees of the mortgagor are necessary parties. Gary v. May (1847), 16 Ohio 66, 67. The bank filed suit against Barksdale Williams and "the unknown heirs [and] devisees * * * of Jacqueline Barksdale Williams, address unknown." In count two of the complaint, appellee acknowledges that "defendant, the unknown heirs * * * may claim an interest in the above described property." Appellee served the unknown heirs by publication. Appellant, as Barksdale Williams's heir, had an interest in the property and was made a party to the foreclosure action by appellee. Had he known of the action, he could have appeared and defended.
{¶ 18} Appellant raises challenges to the validity of the promissory note, the mortgage, and the quitclaim deed that were the subject of the foreclosure action. The proper time to challenge the existence and extent of mortgages is in the foreclosure action. Federal Natl. Mtge. Assn. v.Day, 158 Ohio App.3d 349, 2004-Ohio-4514, 815 N.E.2d 730. The time to raise potential defects with the mortgage instrument is in the foreclosure action. Bank One Dayton, N.A. v.Ellington (1995), 105 Ohio App.3d 13, 663 N.E.2d 660. Appellant was unable to do so because he had no knowledge of the foreclosure action until two weeks after entry of the default judgment. Therefore, it was proper for him to file a Civ.R. 60(B) motion for relief from the default judgment against him. See Guardian Alarm Co. v. Mahmoud (2006),166 Ohio App.3d 51, 849 N.E.2d 58.
{¶ 19} The death of Barksdale Williams gave appellant an immediate and beneficial interest in the property. The default judgment extinguished that interest and forever barred appellant from asserting any right, title, or interest in the property. Having demonstrated a present interest in the subject matter and prejudice from the judgment of the trial court, appellant has met the burden of establishing standing to appeal the denial of his Civ.R. 60(B) motion.
{¶ 20} For the above-stated reasons, I respectfully dissent from the majority's decision to dismiss this appeal. This court should consider the merits of appellant's assignments of error, as I believe he is properly before us. *Page 235