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O GIN. ..

IN THE SUPREME COURT OF OHIO

STATE OF OHIO ex rel. RICHARD F DAVET P.O. Box 10092 Cleveland, Ohio 44110 Relator,

Case No.

3" 0, 2

Original Action in Mandamus

vs. : Verified Complaint THE HONORABLE JUDGE KATHLEEN ANN SUTULA c/o Cuyahoga Court of Common Pleas Courtroom 23-D General Division 1200 Ontario Street Cleveland, Ohio 44113-1678 Respondent. : (Instructions to Clerk for Service)

VERIFIED COMPLAINT OF RELATOR, RICHARD F. DAVET

Richard Davet, pro se P.O. Box 10092 Cleveland, Ohio 44110 (216) 451-6211 RELATOR

FEB 14 2013 FEB 112013 CLERK OF COURT PREME COURT F OHIO CLERK OF COURT SUPREME CURT OF C

Now comes the Relator, RICHARD F. DAVET ("Davet"), pro se, and for his Verified Complaint for Writ of Mandamus against the Respondent, THE HONORABLE JUDGE KATHLEEN ANN SUTULA ("Judge Sutula") states as follows: Relator has no adequate remedy at law because the action below is void and a nullity and appeal cannot be taken from invalid, void, and null judgments entered in the void and null action. Nationsbanc, the purported plaintiff, was a non-party to the mortgage loan on the date it filed the action. Relator previously filed a writ of prohibition and/or mandamus in the Eighth District Court of Appeals of Ohio that was denied based on alleged failure to show patent and unambiguous lack of jurisdiction. Since that filing, this Court issued a ruling applying existing legal authority that a party patently and unambiguously lacks standing to invoke the jurisdiction of a trial court if it does not own the right to foreclosure a mortgage note, including obtaining that right through an assignment after the date the action is filed. On October 31, 2012, the Ohio Supreme Court issued its opinion in Federal Home Loan Mortgage Corporation v. Schwartzwald, 2012-Ohio-50, holding under prior precedent, that the standing rule applies to a third-party to a mortgage contract. There is patently and unambiguously a lack of standing to file a civil action if a third-party to a mortgage does not hold the note and is not the assignee of the mortgage contract on the date it files the civil action. The Ohio Supreme Court held that such a filing is not a valid civil action and must be dismissed without prejudice. This is patent and unambiguous lack of standing required for this Court to issue the writ of prohibition and/or mandamus 2

to order the trial court judge to dismiss the foreclosure action without prejudice, vacate all judgments entered therein, and order the trial court to stop exercising jurisdiction in the matter. This opinion did not change Ohio law, and only applied existing Ohio law. There is no pending writ filed in the Eighth District Court of Appeals at this time, and Relator is filing this original action for writ of mandamus directly with the Ohio Supreme Court pursuant to O.R.C. 2731.02 (writ shall contain copy of petition, verification, and order of allowance) and based on the legal authority of Schwartzwald, supra., providing the legal basis and authority that the trial court lacked patent and unambiguous jurisdiction. Relator claims that Respondent has been unlawfully exercising trial court jurisdiction in Case No. CV-96-304224 ("Action"), and that the trial court patently and unambiguously lacks jurisdiction pursuant to the authority of Federal Home Loan Mortgage Corporation v. Schwartzwald, 2012-Ohio-50 17, 3, 27-28, 39-40 (standing is jurisdictional in foreclosure action, and action must be dismissed without prejudice where putative plaintiff fails to hold the note, and is not the assignee of the mortgage on the date of filing the complaint). Relator brings this petition for a writ of prohibition and/or mandamus because the trial judge is unlawfully exercising jurisdiction in the action and intends to exercise jurisdiction and rule upon motions in that action adversely affecting the Relator herein. The record clearly shows that the putative plaintiff, Nationsbanc, was not the owner or assignee with right of ownership when it filed civil action No. 96-CV-304224. Therefore, the trial court lacked jurisdiction to act ab initio, and the entire record and all judgments issued in that action must be vacated and deemed void ab initio. Further, the

Honorable Judge Kathleen Ann Sutula should be prohibited from exercising any jurisdiction in that action other than taking actions required to restore the Relator, Richard F. Davet, to a position in which he was prior to the Action being filed. Relator contested jurisdiction below and brought lack of jurisdiction to Respondent's attention in the Action, but Respondent ignored Relator's requests to recognize a lack of jurisdiction ab initio, and instead issued void judgments in foreclosure in the Action when the Respondent patently and unambiguously did not have any jurisdiction to proceed with the action. Nationsbanc lacked standing to file the Action as a plaintiff because it patently and unambiguously did not have standing to bring the action against Davet on the date it filed the Action. See Schwartzwald, supra., and Wells Fargo Bank, N.A. v. Jordan, 2009-Ohio-1092 24-26, 91675 (OHCA8), citing Wells Fargo Bank, N.A. v. Byrd, 178 Ohio.App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722. Relator therefore requests this court review the patent and unambiguous lack of jurisdiction in the record below pursuant to the above case law to determine that the proceedings below were void ab initio. The following law supports Relator's request: When a court patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition * * * will issue to prevent any future unauthorized exercise of jurisdiction and to correct the results of prior jurisdictionally unauthorized actions. State ex rel. Columbia Gas of Ohio, Inc. v. Henson, 102 Ohio St.3d 349, 2004-Ohio-3208, 810 N.E.2d 953, 14, quoting State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, 12. In cases of a patent and unambiguous lack of jurisdiction, the requirement of a lack of an adequate remedy at law need not be proven because the availability of alternate

In the exercise of its inherent power to set aside void judgments, a court may treat a request to vacate a void judgment as a common law motion to vacate a void judgment, and the motion to vacate the void judgment is not subject to a time limitation. Vangelos v. Hallios (Ohio App. 8 Dist. 1985), 1985 Ohio App. LEXIS 9230; Fasick v. Fasick, Nov. 24, 1978), Cuyahoga App. Nos. 37826 & 37875, unreported. Even if the Court does not have jurisdiction under Section 2505.02(B), the Ohio Supreme Court has "recognized the inherent power of courts to vacate void judgments." Cincinnati Sch. Dist. Bd of Educ. v. Hamilton County Bd of Revision, 87 Ohio St. 3d 363, 368, 2000 Ohio 452, 721 N.E.2d 40 (2000). "A court has inherent power to vacate a void judgment because such an order simply recognizes the fact that the judgment was always a nullity." Van DeRyt v. Van DeRyt, 6 Ohio St. 2d 31, 36 (1966). If an appellate court is exercising its inherent power to vacate a void judgment, it does not matter whether a notice of appeal was timely filed or whether there was a final, appealable order. Card v. Roysden, 2d Dist. No. 95 CA 108, 1996 Ohio App. LEXIS 2309, 1996 WL 303571 at * 1(June 7, 1996); see Reed v. Montgomery County Bd. of Mental Retardation and Developmental Disabilities, 10th Dist. No. 94APE 10- 1490, 1995 Ohio App. LEXIS 1755, 1995 WL 250810 at *3 (Apr. 27, 1995) (concluding that, if an entry is void ab initio, "[w]hether or not the ... entry constitutes a final appealable order does not affect appellant's ability to appeal the matter." A party may collaterally attack a judgment that is void ab initio. Black v. Aristech Chemical Co. (Ohio App. 4. Dist. 2008), 2008-Ohio-7038 15; Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, at 11. Because a judgment rendered by a court without subject-matter jurisdiction is void ab initio, it is subject to collateral

attack. See id., quoting Patton v. Diemer (1988), 35 Ohio St.3d 68, 518 N.E.2d 941, paragraph one of the syllabus; see, also, Ohio Pyro, Inc. v. Ohio Dept. of Commerce (Ohio 2007), 2007-Ohio-5024 at 25. If a court lacks subject-matter jurisdiction, its judgment is "null and void [and] is subject to collateral attack, not only by the parties thereto, but by others---that is, by whomever it might affect * **."' Horn v. Childers, (1959), 116 Ohio App. 175, 179, 187 N.E.2d 402. In general, a void judgment is one that has been imposed by a court that lacks the authority to act. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197 at 12; State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, 27. Because Respondent clearly and patently lacked original jurisdiction to act in the underlying action 96-CV-304224, Respondent should be barred from exercising jurisdiction in the Action. WHEREFORE, Relator requests this court review the patent and unambiguous lack of jurisdiction in the trial court proceedings below as to the trial court lacking any jurisdiction ab initio to proceed in Case No. CV-96-304224 from the Cuyahoga County Court of Common Pleas; grant an immediate writ of mandamus requiring Respondent, the Honorable Kathleen Ann Sutula, to vacate all orders, entries and other process issued by the court in Case No. CV-96-304224 and to dismiss Case No. CV-96-304224 without prejudice; and prohibiting Respondent from issuing any further orders in that case including the disbursement of any funds to any person other than the Defendant, Richard F. Davet in that case, under the legal authority of Schwartzwald, supra. Respectfully submitted,

Richard 'vet, pro se P.O. Box 10092 Cleveland, Ohio 44110 (216) 451-6211

Instructions to the Clerk for Service Please issue and serve summons and a copy of the Verified Complaint in this action on the Respondent to the address as named in the caption according the Rule of Practice of the Ohio Supreme Court. Respectfully submitted,

Richard Davet, pro se P,O. Box 10092 Cleveland, Ohio 44110 (216) 451-6211

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