^R^ ^ AL

1N THE SUPREME COURT OF OHIO

RICHARD F. DAVET

Appellant,vs.

FEDERAL NATIONAL MORTGAGE

ASSOCIATION, et al.

Appellees.

Case No ^, ^ ^ ^ ^ ®

Appeal from the Eighth DistrictCourt of Appeals of Ohio,Cuyahoga County

Court

of Appeals Case

No. CA-12-

097890

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT RICHARD F. DAVET

Richard Davet,

pro se

P.O. Box 10092Cleveland, Ohio 44110(216) 451-6211APPELLANT

James S. Wertheim, Esq.

Melany A. Fontazza, Esq.

MCGLINCHEY & STAFFORD PLLC

25550

Chagrin Boulevard, Suite 406Beachwood,

Ohio 44122-4640ATTORNEYS FOR APPELLEES

^^^ ^ ^ ^q^^

CLER{ OF C®URT

OCT 2 2^ c 12

CLERK OF COl1RTREME t^OUR`i OE OHIO

 

^

TABLE OF CONTENTSEXPLANATION OF WHY THE CASE IS OF PUBLIC OR GREAT GENERAL 1NTERESTAND RAISES A SUBSTANTIAL CONSTITUTIONAL QUESTION SUCH THAT LEAVETO APPEAL SHOULD BE GRANTED ........................................................................................ 2STATEMENT OF THE CASE AND FACTS ............................................................................... 4ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ....................................................... 9Proposition of Law No. I: A non-party and non-assignee to a contract cannot invoke thejurisdiction of an Ohio court by filing a civil action in foreclosure when a present justiciablecontroversy between them does not exist (i.e., an inchoate controversy dependent upon a future

assignment of rights) pursuant to

Kincaid v. E^ie Ins. Co.,

128 Ohio St.3d 322, 2010-Ohio-6036,944 N.E.2d 207, ¶¶ 13, 17, where the trial court's jurisdiction is not invoked under the OhioConst. Art. IV, § 4(B) and Civil Rule 12(H)(3) requires dismissal for lack of jurisdiction. .......... 9

CONCLUSION .......................................

CERTIFICATE OF SERVICE .................

APPENDIX COVER PAGE .......................

........................................................... 16........................................................ 16....................................................... 17

JUDGMENT AND OPINION OF THE COURT OF APPEALS (AUG. 9, 2012) ...................... 18JOURNAL ENTRY DENYING RECONSIDERATION AND CERTIFICATION OF A

CONFLICT

(SEP. 12, 2412)

........................................................................................................ 27JOURNAL ENTRY DENYING EN BANC CONSIDERATION (

SEP. 25, 2012) .................... 28

 

 

I. EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT

GENERAL 1NTEREST AND RAISES A SUBSTANTIAL CONSTITUTIONALQUESTION SUCH THAT LEAVE TO APPEAL SHOULD BE GRANTED

The appeal of this case is of public and great general interest and raises a substantial

constitutional question. The public should be confident that a void judgment in a foreclosure

action is not subject to direct appeal and

res judicata

and the Court should decide the bounds of justiciable matter cited in the Ohio Const.

Art. IV,

§ 4(B). When the party foreclosing their

mortgage does not have a justiciable controversy with the mortgagor on the date they file a

foreclosure action with regard to the mortgage, the court's jurisdiction is not invoked.

Specifically, when the party filing the foreclosure action does not own the mortgage and has

absolutely no contractual relationship upon filing a civil action, as a party to the contract or an

assignee thereof, the trial court does not have jurisdiction to proceed with the case and it must be

dismissed..

The facts in this case show that the assignment of the mortgage to the party filing the

civil action

(

NationsBanc) did not occur until 1999. The underlying foreclosure action was filed

on March 1, 1996, in Cuyahoga Court of Common Pleas, Case No. CV-96-304224, captioned

NationsBanc 1

fortgage Lorporation v. Tcicha^d rT Davei et

al.

The trial

courL allowed a

foreclosure action to proceed

(

by a plaintiff without a justiciable controversy against the

defendant) without jurisdiction for over

three yea^s.

This is a waste of judicial resources, and is

an injustice to homeowners in Ohio. The entire process, including the trial proceedings, and

subsequent appeal, is a legal

nullity

because the proceedings were void, and the action should

have been dismissed instead of proceeding to foreclosure.

Ohio case law states that states a person without contractual rights may not sue on a

contract due to a lack of standing where there is no present justiciable controversy between the

2