Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Saxon Mortgage Services, Inc. v. Whitely

Court of Appeals of Ohio, Ninth District

July 24, 2013

SAXON MORTGAGE SERVICES, INC. Appellee.
v.
MICHELLE L. WHITELY, et al. Appellant.

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV2007-11-8141

THOMAS C. LOEPP, Attorney at Law, for Appellant.

BARBARA FRIEDMAN YAKSIC and CANDICE L. MUSIEK, Attorneys at Law, for Appellee.

DECISION AND JOURNAL ENTRY

JENNIFER HENSAL, Judge.

{¶1} Michelle Whitely appeals an order of the Summit County Common Pleas Court that denied her motion to vacate the court's judgment. For the following reasons, this Court affirms.

I.

{¶2} In November 2007, Saxon Mortgage Services, Inc. filed a complaint in foreclosure against Ms. Whitely, alleging that she had defaulted on a loan. Following discovery, Saxon moved for summary judgment. On June 5, 2008, the trial court entered an "Agreed Entry Granting Summary Judgment and Decree in Foreclosure." In the entry, the court noted that Ms. Whitely had agreed to the foreclosure. After the sheriffs office sold the affected property, the trial court confirmed the sale and distributed the proceeds.

{¶3} In June 2012, Ms. Whitely moved to vacate the trial court's judgment, asserting that it was void ab initio because Saxon was not the holder of the note and mortgage at the time it filed its complaint. She argued that, even though the property had been sold, the foreclosure decree should be vacated. She also sought leave to file a counterclaim against Saxon and others to seek restitution for their fraud on the court. The trial court denied her motion, however, because it concluded that the controversy was moot because the property had been sold and the proceeds distributed. Ms. Whitely has appealed, assigning as error that the trial court incorrectly denied her motion to vacate.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO VACATE JUDGMENT.

{¶4} Ms. Whitely argues that Saxon did not have standing to file a foreclosure complaint against her. She contends that, because Saxon did not have standing, there was no justiciable matter, the trial court never acquired jurisdiction over her property, and its foreclosure decree is void. She also argues that, even though the property has been sold and the proceeds distributed, her appeal is not moot because she could still seek restitution from Saxon and others who were involved in the initiation of its action.

{¶5} As this Court explained in Banker's Trust Co. of California, N.A. v. Tutin, 9th Dist. Summit No. 24329, 2009-Ohio-1333, "[a]ppellate courts will not review questions that do not involve live controversies." Id. at ¶ 6. Once a judgment is satisfied, "the rights and obligations of the parties [are] extinguished * * *." Id. at ¶ 8. Because the court's decision "cannot have any practical effect upon the issues raised by the pleadings, " an appeal in a case in which the judgment has been satisfied is moot. Id ., quoting Sedlak v. City of Solon, 104 Ohio App.3d 170, 178 (8th Dist.1995).

{¶6} In Tutin, Banker's Trust foreclosed on property owned by Barry Tutin. Although Mr. Tutin's former spouse, Laura Lynch, appealed, the stay that she sought expired, and the property was sold at sheriffs sale. After the trial court confirmed the sale and distributed the proceeds, Banker's Trust moved to dismiss Ms. Lynch's appeal, arguing that it was moot. Ms. Lynch argued that the appeal was not moot because she could still seek restitution from Banker's Trust. This Court noted that there are two recognized exceptions to the mootness doctrine, "if the issues are capable of repetition, yet evading review, " "and "if it 'involves a matter of public or great general interest.'" Id. at ¶ 9, quoting In re ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.