O GIN. ..

IN THE SUPREME COURT OF OHIO

STATE OF OHIO ex rel. RICHARD FDAVETP.O. Box 10092Cleveland, Ohio 44110

Relator,

Case No. 3" 0,2Original Action in Mandamus

vs. : Verified Complaint

THE HONORABLE JUDGE KATHLEEN : (Instructions to Clerk for Service)ANN SUTULAc/o Cuyahoga Court of Common PleasCourtroom 23-DGeneral Division1200 Ontario StreetCleveland, Ohio 44113-1678

Respondent.

VERIFIED COMPLAINT OF RELATOR, RICHARD F. DAVET

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

FEB 112013

CLERK OF COURTPREME COURT ®F OHIO

FEB 14 2013

CLERK OF COURTSUPREME C®URT 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

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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

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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

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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

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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,

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

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

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