[Cite as Wiegand v. Deutsche Bank Natl. Trust,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97424

JACKIE WIEGAND RELATOR

vs.

DEUTSCHE BANK NAT’L TRUST ETC., ET AL. RESPONDENTS

JUDGMENT: WRIT DENIED

Writ of Prohibition Motion Nos. 450331 and 451373 Order No. 452556

RELEASE DATE: March 6, 2012 ATTORNEY FOR RELATOR

James R. Douglass James R Douglass Co., LPA 20521 Chagrin Blvd. Ste. D Shaker Heights, OH 44122

ATTORNEYS FOR RESPONDENTS

For Honorable Kathleen A. Sutula Cuyahoga Cty. Court of Common Pleas, and Sheriff Robert Reid

William D. Mason Cuyahoga County Prosecutor

By: Charles E. Hannan, Jr. Assistant. County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113

ADDITIONAL RESPONDENTS

FOR LAW OFFICES OF JOHN D. CLUNK CO. Law Offices of John D. Clunk Co, LPA 4500 Courthouse Blvd. Ste. 400 Stow, OH 44224

FOR DEUTSCHE BANK NATIONAL TRUST Deutsche Bank National Trust Co. 505 City Parkway West, Ste. 100 Orange, CA 92868 PATRICIA A. BLACKMON, J.:

{¶1} Jackie Wiegand has filed a verified complaint for a writ of prohibition.

Wiegand seeks an order from this court that prevents the respondents Judge Kathleen A.

Sutula, the Cuyahoga County Court of Common Pleas and Cuyahoga County Sheriff

Robert Reid from exercising jurisdiction in the case styled Deutsche Bank Natl Trust Co.,

et al. v. Wiegand, Cuyahoga Cty. Court of Common Pleas Case No. CV-599036.1 For

the following reasons, we grant the joint motion for summary judgment filed by the

respondents and deny Wiegand’s cross-motion for summary judgment.

Facts

{¶2} The following facts that are pertinent to this original action are gleaned from

the original complaint for a writ of prohibition, the answer to the complaint, the

respondents’ joint motion for summary judgment, the brief in opposition to the joint

motion for summary judgment, the cross-motion for summary judgment, and the brief in

opposition to the cross-motion for summary judgment:

(1) Wiegand was the owner of real property located at 16105 Rockside Road,

Maple Heights, Ohio;

1 Wiegand has also named the Deutsche Bank National Trust Co. and John D. Clunk, LPA, as additional respondents. However, the complaint for prohibition fails to state a claim for relief against either Deutsche Bank or Clunk. Pursuant to Civ.R. 12(B)(6), we sua sponte dismiss the complaint for prohibition brought against Deutsche Bank and Clunk. State ex rel. LetOhioVote.Org. v. Brunner,

,

,

, ¶ 11; State ex rel. Peeples v. Anderson,

,

(1995). (2) on July 26, 2005, Wiegand executed a mortgage note in the amount of $84,000,

payable to Argent Mortgage Co., LLC;

(3) on August 16, 2006, John D. Clunk Co, LPA “filed a foreclosure complaint on

behalf of Deutsche Bank National Trust Company as Trustee of Argent Mortgage

Securities, Inc.,. Asset Based Pass Through Certificates Series 2005-W3 under the

Pooling and Servicing Agreement dated as of November 1, 2005, without recourse”;

(4) the complaint in foreclosure was assigned to Cuyahoga Cty. Court of Common

Pleas Case No. CV-06-599036, with Judge KathleenSutula presiding over the civil action;

(5) on July 16, 2008, Judge Kathleen Sutula entered an order that provided, in part,

that:

[p]ursuant to the Stipulated Settlement Agreement filed herein on April 7, 2008, Defendant Jacqueline Wiegand hereby dismisses the Counterclaim and Third party Complaint, waives any and all claims and defenses she may have to the foreclosure and as against the Plaintiff [Deutsche Bank] and Third-Party Defendant Argent Mortgage Company, LLC and consents to this in rem decree of foreclosure. In consideration thereof, Plaintiff [Deutsche Bank] hereby waives any and all claims for a personal deficiency judgment against defendant Jacqueline Wiegand on the Note. (Emphasis added);

(6) on May 15, 2009, Wiegand filed a motion to dismiss the complaint for

foreclosure premised upon the issue of whether Deutsche Bank was the real party in

interest;

(7) on May 22, 2009, Judge Kathleen Sutula denied Wiegand’s motion to dismiss

and held that:

Defendant Jacqueline Wiegand’s eight motions filed on 2/04/2010 and 2/11/2010 are denied. As noted in the court’s journal entry of 5/22/2009 and as demonstrated by the record in this case, defendant previously waived her defenses and consented to foreclosure pursuant to a settlement agreement between the parties. (See filings and journal entries of 4/07/2008, 6/02/2008, 7/16/2008, and 5/22/2009.) At no time has defendant filed an appeal of the court’s decisions, either as a pro se litigant or when she was represented by counsel (which was from 11/30/2006 until 12/1/2008). Furthermore, the court does not interpret the Eighth District’s ruling [Wells Fargo Bank, N.A. v. Jordan, 8th Dist. No. 91675,

], which was decided on 3/12/2009, to apply retroactively to a stipulated decree of foreclosure entered eight months earlier in furtherance of a settlement agreement.

(8) on November 22, 1010, Wiegand’s real property was sold at a sheriff’s sale;

(9) on December 27, 2010, Judge Kathleen Sutula issued a decree of confirmation

and held that:

The sheriff having sold the property described in the order of sale issued to him, the court being satisfied of the legality of the sale and that the notice of the sale was in all respects in conformity to law, approves and confirms the same and directs the sheriff to execute and deliver to Deutsche Bank National Trust Company, as Trustee for Argent Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2005-W5, a good and sufficient deed thereof. Writ of possession against all defendants ordered issued to purchaser. (10) on January 24, 2011, Wiegand filed an appeal with this court, in Cuyahoga

App. No. 96324, from the order of foreclosure and the decree of confirmation;

(11) on June 9, 2011, this court dismissed Wiegand’s appeal on the basis that the

“[a]ppeal is barred by the terms of the settlement and release agreement between the

parties”;

(12) on September 7, 2011, this court denied Wiegand’s “motion for

reconsideration and to reinstate appeal”;

(13) Wiegand did not file a timely appeal from this court’s dismissal of Cuyahoga

App. No. 96324 to the Supreme Court of Ohio;

(14) on October 18, 2011, Wiegand filed her complaint for a writ of prohibition and an alternative writ of prohibition;

(15) on November 3, 2011, this court denied Wiegand’s request for an alternative

writ of prohibition;

(16) on December 12, 2011, the respondents filed a joint motion for summary

judgment;

(17) on January 17, 2012, Wiegand filed her combined brief in opposition to the

motion for summary judgment and a cross-motion for summary judgment;

(18) on February 6, 2012, the respondents filed a joint brief in opposition to

Wiegand’s cross-motion for summary judgment.

Legal Analysis

{¶3} Wiegand asserts that she is entitled to a writ of prohibition based upon the

argument that Deutsche Bank lacked standing to bring the action in foreclosure, which

prevented Judge Kathleen Sutula and, indirectly, Sheriff Reid from possessing subject

matter jurisdiction over the foreclosure action. “Neither mandamus nor prohibition will

issue if the party seeking extraordinary relief has an adequate remedy in the ordinary

course of law.” Dzina v. Celebrezze,

,

,

. The Supreme Court of Ohio has also firmly established that “[i]n the

absence of a patent and unambiguous lack of jurisdiction, a court having general

subject-matter jurisdiction can determine its own jurisdiction, and a party contesting that

jurisdiction has an adequate remedy by appeal.” State ex rel. Plant v. Cosgrove,

,

,

; see also State ex rel. Mosier v. Fornof,

,

,

. For the following

reasons, we find that Judge Kathleen Sutula did not patently and unambiguously lack

jurisdiction in the underlying action for foreclosure.

{¶4} Initially, we find that Judge Kathleen Sutula had the inherent and statutory

authority to preside over the underlying action in foreclosure. Judge Kathleen Sutula sits

as an elected judge of the Cuyahoga County Court of Common Pleas. The Ohio

Constitution created the general courts of common pleas and granted them statewide

jurisdiction. Cheap Escape Co. v. Haddox, LLC,

,

,

; Ohio Constitution, Article IV, Section 4(A). The Cuyahoga County

Court of Common Pleas is a court of general jurisdiction and possesses original

jurisdiction in all civil cases in which the sum or matter in dispute exceeds the exclusive

jurisdiction of county court or municipal courts. R.C. 2305.01. The complaint in

foreclosure alleged that an amount, in excess of $84,000 plus interest thereon at the rate

of 10.5% from March 1, 2006, was due on a promissory note executed by Wiegand and

secured by a mortgage deed. Clearly, the Cuyahoga County. Court of Common Pleas

and Judge Kathleen Sutula had jurisdiction over the complaint for foreclosure and

possessed the inherent and statutory authority to enter judgment in the underlying case.

Absent a patent and unambiguous lack of jurisdiction, a court having general

subject-matter jurisdiction can determine its own jurisdiction. State ex rel. White v.

Junkin,

,

(1997); State ex rel. Enyart v. O’Neil,

,

(1995). {¶5} In addition, we find that Wiegand waived any and all defenses to the action in

foreclosure. Pursuant to the journal entry of July 16, 2008 in the underlying action in

foreclosure, Wiegand waived any and all claims and defenses, including the claim that

Deutsche Bank lacked standing to bring the action in foreclosure. A defendant waives a

right or defense by voluntarily relinquishing that right or defense or engaging in conduct

that causes an inference of a relinquishment of that right or defense. Gliozzo v. Univ.

Urologist of Cleveland, Inc.,

,

,

;

Gollings v. Natl. Life Ins. Co.,

,

(9th Dist. 1994). It

must also be noted that this court, in its disposition of the appeal brought by Wiegand

from the order of foreclosure and sheriff’s sale, specifically found that Wiegand had

indeed waived all defenses to the action in foreclosure. See Deutsche Bank National

Trust Co. V. Wiegand, et al, 8th Dist. No. 96324, (Apr. 11, 2011).

{¶6} Finally, Wiegand has or had adequate remedies in the ordinary course of law,

e.g., appeal, for review of any alleged jurisdictional defects. Wiegand also was permitted

to file an appeal with the Supreme Court of Ohio with regard to our dismissal of her

appeal based upon the issue of waiver. State ex rel. Hughley v. McMonagle,

,

,

; State ex rel. Jaffal v. Calabrese,

,

,

. And extraordinary writs may not be

employed to gain successive appellate reviews of the same issue previously raised in an

appeal. Stat ex rel. Williams v. Bessey,

,

,

; State ex rel. Woods v. Oak Hill Community Med. Ctr.,

,

(2001); State ex rel. Smith v. O’Connor,

,

(1995).

{¶7} Therefore, Judge Kathleen Sutula did not patently and unambiguously lack

jurisdiction to proceed to judgment in the underlying action in foreclosure filed against

Wiegand.

Conclusion

{¶8} Writ denied.

{¶9} Based on the foregoing, we grant the respondents’ joint motion for summary

judgment and deny Wiegand’s cross-motion for summary judgment.

{¶10} It is further ordered that the Clerk of the Eight District Court of Appeals

serve notice of this judgment upon all parties as required by Civ.R. 58(B).

Cost to Wiegand.

PATRICIA A. BLACKMON, PRESIDING JUDGE

JAMES J. SWEENEY, J., AND COLLEEN CONWAY COONEY, J., CONCUR