^ ^ .,^^^^^ 9 : ^

IN THE SUPREME COURT OF OHIO

Sky Bank et al41 South High StreetColumbus Ohio 43215

Plaintiff-Appeilee,

V

Michael F. Colley et al4200 Dublin RoadColumbus Ohio

Defendant -Appellee

( James M. Ryan3165 Dale Avenue

Columbus Ohio 43209Defendant-Appellant .)

1 2- 1 8^ 9On Appeal from the Franklin

County Court of Appeals,Tenth Appellate DistrictCase No. 1 lAP-1075

Sl^y Bank41 South High StreetColumbus Ohio 43215

Plaintiff Appellee,

Huntington National Bank41 South High StreetColumbus Ohio 43215

Plaintiff-Appellee

DB Midwest LLC% Fortress Investment Group1345 Avenue of AmericasNew York, NY. 10020

Plaintiff-Appellee

Felex Melchor519 Madison AvenueToledo Ohio 43604

Plaintiff -Appellee

Michael F. Colleyaka Michael M. Colley4200 Dublin RoadColumbus Ohio

Defendant- Appellee

James M. Ryan3165 Dale AvenueColumbus Ohio 43209

Defendant - Appellant

Michael Dewine Esq.Attorney,General for theState of Ohio30 E. Broad StreetColumbus, Ohio 43215

Gu'LIs^9^®^9 U ^ ^^i?

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MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT JAMES M. RYAN

James M. Ryan Pro se, Appellant3165 Dale AvenueColumbus Ohio 43209(614)670-4396(614)732-5349 faxj imr^anbroker(a, ^rnail. com

Stephen A Santanangelo Esq.Weltman Weinberg & Reis Co.LPA175 South Third Street, SuiteColumbus Ohio 43215Attorney for Sky Bankssantanangelo(a^weltman.com

Matthew G. Burg #0072556Weltman Weinburg & Reis, Co. L.P.A.323 West Lakeside Ave. Suite 200Cleveland , Ohio 44113(216)685-1111(216)b85-4345 faxmburg(a^weltman.comAttorney for Appellee D.B. Midwest LLC,Huntington National Bank, Sky Bank

John R. Wirthlin Esq.Weltman , Weinberg & Reis Co. LPA525"Vine Street Suite 800Cincinnati Ohio 45202Attroney for Huntington National Bank,Sky Bank, D.B. Midwest LLC& Felex Melchor

Anthoney J. Cimperman Esq.3145 N. High StreetColumbus Ohio 43202Attorney for Michael F. Colley

Michael F. Colley Esq.4200 Dublin RoadColumbus Ohio

Michael Dewine Esq.Attorney General of Ohio30 E. Broad StreetColumbus Ohio 43215

TABLE OF CONTENTS Page

Explanation of why this case is a case of public or great general interest P.1And involves substantial constitutional questions.

Statement of the Case and Facts

Argument in suppart of Propositions of Law

Proposition of Law # 1

P.7

P. 10

The language of Ohio Revised Code Section 2323.13(A) requires an attorney confessingjudgment to present the original warrant of attorney to the Trial Court at the time the attorneymakes confession.. Because the requirements of Ohio Revised Code Section 2323.13(A) arejurisdictional failure to present the original note and warrant of attorney render any cognovitjudgment entered void ab initio for failure to invoke the subject matter jurisdiction of the TrialCourt . Any appeal from the void cognovit judgment is a nullity. The principal of res judicataincluding the doctrine of law of the case arising from an appeal of the void cognovit judgmentis also a nullity and can not used to bar revisiting the case in a subsequent appeal.

Propositionof Law # 2 P. 13

Ohio Revised Code Section 2323.52 and specifically Ohio Revised Code Sections 2323.52A(3)& D(2) violate Article I, Section 17 of the Ohio Constitution thereby violating the EqualProtection and Due Process Clause of the United States Constitution and Article I Section 16 of

the Ohio Constitution.

Proposition of Law # 3 P. 14

Ohio Civil Rule 60(B) has no application to void orders . A Trial Court's sua sponteconversion of a Motion to Vacate a Void Order or Judgment to a Civil Rule 60 (B) motionshall on appeal be reversed for further proceeding in the Trial Court in accordance with

applicable law .

Conclusion :

Certificate of Service

Appendix

Decision of Franklin County Court of AppealsTenth Appellate District dated September 25, 2012Judgment Entry of Franklin County Court of AppealsTenth Appellate District dated September 25, 2012Jo^arnal Entry of the Franklin County Court of AppealsTenth Appellate District dated October 5, 2012

P.15

P.16

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC ORGREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL

CONSTITUTIONAL QUESTION.

The issues brought before this Court include a decision by the Franklin County Court of

Appeals , Tenth Appellate District holding that the law of the case doctrine from a previous

appeal prohibits further review of the initial subject matter jurisdiction of the trial court to

issue a judgment against Appellant in the action.

Appellant argues that if subject matter jurisdiction was not invoked at the trial court to issue

a cognovit judgment any subsequent proceeding initiated from the void judgment are also void .

Therefore, any subsequent appeal proceedings pertaining to the void judgment would be

held a nullity eliminating any application of law of the case doctrine or res judicata coming

from that appeal proceeding

Appellant argues that this issue is of public and great general interest as this jurisdictional

issue is also applicable to many court cases recently decided and waiting to be reversed as a

result of this Court's recent decision in Fed.Home Loan Mtge. Corp. v Schwartzwald, Slip

Opinion 2012-Ohio-5017 . If not reversed the Court of Appeals decision in this case may

provide a basis to prohibit revisiting many erroneous decisions decided by far to many courts

in favor of creditors to the extreme cost to homeowners in Ohio and provide a basis to leave

void judgments in effect penalizing debtors for unjust reasons.

Appellant is not seeking an advisory opinion for those cases but is arguing that the facts of

this case has close similarities with cases affected by this Court's decision in Fed Home Loan

Mtge.Corp v Schwartzwald, supra.

A Motion to Vacate with similar arguments as Appellant's has recently been filed in a 2008

Delaware County Court of Common Pleas Court case No. 08CVE 09 1219 , Deutsch Bank Natl.P.1

Trust Co. v Robert Slayton in which the attorney argues that the failure to invoke subject matter

jurisdiction in the Trial Court at commencement of the action nullifies all subsequent

proceedings including appeals and requires that the original Trial Court action be dismissed.

This argument is generally the same argument Appellant brought before the Franklin County

Court of Appeals in this case which was denied review for the reason that the Law of the Case

Doctrine prohibited revisiting the issue.

In the case at bar Appellant argues that the trial court lacked subject matter jurisdiction

over the controversy as a result of the failure of Attorney Anthony J. Cimperman to invoke

the jurisdiction of the Trial Court to issue a cognovit judgment by his failure to present to the

Trial Court the original cognovit note, confession of judgment and the warrants of attorney at

the time of his and/or Plaintiff's confession of judgment on behalf of Appellant ..The fact that

Mr. Cimperman or Plaintiff failed to comply with Ohio Revised Code Section 2323.13(A)

when presenting the original cognovit note, confession of judgment and the warrant of

attorney to the Trial Court at the time of confession of judgment leaves the trial court without

subject matter jurisdiction to render judgment, and a judgment entered on that cognovit note is

void ab initio . . Klosterman v. Turnkey-Ohio, L.L.C., 182 Ohio App.3d S1S, 2009-Chio-2578,

@19. citing Taranto v. Wan-Noor (May 1S, 1990), lOth Dist. No. 90AP-1, citing Patton v.

Diemer (1988), 3S Ohio St.3d 68.

The law in the Tenth Appellate District which is firmly established that strict compliance

with the statutory scheme set forth in Ohio Revised Code Section 2323.12 and 2323.13 must be

strictly complied with in order to obtain a cognovit judgment. See Huntington Natl. Bank v 199

S. Fifth St. Co., 2011-Ohio-3707 at 9:

Yet the Franklin County Court o_f Appeals in this case avoided recognizing the fact thatP.2

the Trial Court made error by issuing the void cognovit judgment by refusing to review the Trial

Court's actions relying on the Law of the Case Doctrine from the faulty findings of a previous

Tenth Appellate District appeal from the void cognovit judgment.

In fact this Court has recently expressed its concern over noncompliance with mandatory

requirements contained in the Ohio Revised Code. Recently in State v Fisher, 128 Ohio St. 3d

92 , 2010-Ohio-6238 when it stated in its Syllabus No. 1:

"A sentence that does not include a statutory mandated term of post release control is void, is notprecluded from appellate review by principals of res judicata, and may be reviewed at any time , ondirect appeal or by collateral attack. This Court went on to hold @ 40 : principals of res judicata ,including the doctrine of the law of the case , do not preclude appellate review."

State v Fisher has recently been followed by State v Billiter, Slip Opinion 2012-Ohio-5144

which further expands the time for collateral attack of void judgments .

It is Appellant's understanding that substantive issues decided in criminal cases are applicable

to civil cases especially pertaining to constitutional challenges such as void judgments and the

law of the case doctrine. As an example of the criminal - civil relationship See In re GMS Mgt.

Co., Inc. v. Unpaid Court Costs, Fees & Delinquencies, 187 Ohio App.3d 426, 2010-Ohio-

2203 @ 19citing State v Hochhausler,(1996)76 Ohio St. 3d 455,relating to procedural due

process.

Appellant further argues that due to Mr. Cimperman's failure to strictly comply with Ohio

Revised Code Section 2323.13(A) when he confessed judgment for Appellant ,that the subject

matter jurisdiction of the Trial Court was not invoked and any judgment entered on that

cognovit note is void ab initio. Kloesterman v Turn Key- Ohio LLC, supra. Therefore, an

appeal arising from that void judgment is also void..

If Appellant's argument is valid, the Decision and Judgment Entry issued on September 25,

2012 in this case by the Franklin County Court of Appeals @ 8 holding that the P.3

decision from the appeal of the void judgment in 2008 stands as the law of the case and

prohibits revisiting the Trial Court case is in clear error and must be reversed.

Appellant argues, just as surely many wronged litigants will from the forthcoming

foreclosure debacle resulting from Fed Home Loan Mtge. Corp. v Schwartzwald, supra, , that

the State may not deny equal treatment under the law to one group of litigants while granting

relief to another group of litigants in its review of void judgment cases . Distinguishing the

res judicata and law of the case holdings in State v Fisher & State v Billiter, supra, away from

Appellant's case clearly denies Appellant rights to equal protection guaranteed by Article I,

Section 1& 16, Ohio Constitution and the Due Process and Equal Protection Clauses of the

Fourteenth Amendment of the United States Constitution..

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny

to any person the equal protection of the laws. The Equal Protection Clause prevents states

from treating people differently under its laws on an arbitrary basis. Harper v. Virginia State

Bd. of Elections (1966), 383 U.S. 663, 681, 86 S.Ct. 1079, 1089 (Harlan, J., dissenting).

It is established law that one may raise the issue of subject matter jurisdiction at any

time , it may be reviewed on direct appeal or collateral attack nor can waiver apply to a

challenge to the subject-matter jurisdiction of a court. Rosen v. Celebrezze, 117 Ohio St.3d

241, 2008-Ohio-853 @ 45.

Appellant has raised subject matter jurisdiction in the case at bar as well as the law of the case

doctrine. Appellant has supported his arguments with Constitutional arguments and established

laws of this Court and Court of Appeals through out Ohio .Considering existing law and his

constitutional arguments Appellant's appeal has wrongfully been denied review by the Franklin

County Court of Appeals. This Court should reverse the Appeals Court decision.P.4

Appellant argues that this appeal is of Public and Great Interest for reasons stated herein and

this Court should grant Jurisdiction to Appellant's appeal.

Unfortunately Appellant's appeal is not limited to the void judgment , subject matter

jurisdiction and law of the case argument.

Appellant , upon application of counsel for Appellee D.B. Midwest LLC , moved to

declare Appellant a vexatious litigator in a companion case in which the same cognovit note at

issue in this case is at issue and pending in the companion case. D.B. Midwest LLC's

motion was granted declaring Appellant a vexatious litigator .

While the Order Declaring James M. Ryan a Vexatious Litigator is not on appeal in this case

the Constitutionality of the under lying Ohio Revised Code Statute as applied to the Journal

Entry by the Franklin County Court of Appeals in this case is on appeal.

Appellant must adhere to its restrictions placed upon him as being a vexations litigator,

subject to the pending appeal. . Appellant has complied and in so doing filed with the Franklin

County Court of Appeals an Application for Leave to Proceed in an attempt to file a

Motion for Reconsideration of its Judgment and Decision and a Motion to Certify a Conflict .

in this case

On October 9, 2012 the Franklin County Court of Appeals without explanation denied

Appellant's Application for Leave to Proceed thereby denying him due process and equal

protection under the law.

While Appellant is prohibited from appealing to this Court the Denial of his Application

for Leave To Proceed Appellant does have the right to appeal the Constitutionality of Ohio

Revised Code Section 2323.52

Appellant argues that Ohio Revised Code Section 2323.52 et seq. and specifically Ohio

Revised Code Section 2323.52 A(3) and 2323.52 A(D) (2) bestows upon a class called P.5

Attorneys and their clients with the privilege of an exemption from the restrictions of Ohio

Revised Code Section 2323.52 et seq. contrary to Article I Section 17 of the Ohio Constitution.

Article I, Section 17 of the Ohio Constitution states:

"Article 1. Section 17 Hereditar^privileges, etc. (1851) "No hereditary emoluments, honors,

or privile^es shall ever be granted or conferred by this state."

Appellant argues that this challenge to the Constitutionality of Ohio Revised Code

Section 2323.52 et seq. is a Substantial Constitutional Question and is a case of Public and

Great General Interest. Appellant requests that this Court grant Jurisdiction to have Appellant

`s appeal to be heard before the Court..

Appellant also argues that he was greatly prejudiced by the Trial Court's

Civil Rule 60 (B) proceedings as the Trial Court did not provide Appellant notice of the

conversion of his Motion to Vacate Void Judgment into a Civil Rule 60 (B) Motion thereby

denying him his procedural due process rights to present evidentiary & operative facts in a

proper form in support of the Trial Court's analysis of Appellant's case.

Appellant argues that the Franklin County Court of Appeals made clear error in not reversing

the Trial Court's decision to convert Appellant's Motion to Vacate a Void Judgment to a Civil

Rule 60(B) Motion with out notice as established law clearly states that a Civil Rule 60 (B)

Motion has not application to void orders. Milton Banking Co. v. Dulaney, 2010-Ohio-1907 @

17: Patton v. Diemer (1988), 35 Ohio St.3d 68, at paragraph four of the syllabus.

The Franklin County Court of Appeals dismissed this lack of authority of a Trial Court

to convert a Motion to Vacate a Void Judgment to a Civil Rule 60(B) Motion by concluding that

no prejudicial error resulted from the Trial Court's application of 60(B) analysis .

Obviously the Franklin County Court of Appeals came to its conclusion based P.6

upon the same record as was before the Trial Court for its Civil Rule 60(B) analysis.. But this

record was not sufficient to be considered a proper submission of evidence in a Civil Rule 60

(B) analysis .

Appellant was not given notice of the Trial Court's conversion of his Motion to Vacate

Void Judgment to a Civil Rule 60(B) proceeding. Notice of a conversion is a fundamental right

which if not given constitutes an abuse of discretion on the part of the Trial Court Judge.

Appellant argues it is a matter of first impression regarding a Trial Court's sua sponte

conversion of a Motion to Vacate Void Judgment to a Civil Rule 60(B) Motion ,with out

giving proper notice to the parties to respond.

This act on the part of the Trial Court is contrary to law and the Civil Rules and constitutes

a violation of Appellant's rights to Procedural Due Process guaranteed under Article I, Section

16 of the Ohio Constitution and the Fourteenth Amendment of the United States Constitution

Appellant respectfully requests this Court to find that all of Appellant's Propositions of Law

and the related issues argued herein involve Substantial Constitutional Questions and are of

Public and Great General Interest . Appellant does not waive any issues not argued herein as

space limits this memorandum to the most important issues that can be placed before this

Court. .STATEMENT OF FACTS AND THE CASE

On or about August 10, 2007 Attorney Anthony J. Cimperman allegedly permitted Mr.

Stephen A. Santangelo Esq. to incorporate into a Complaint on Cognovit Note A copy of an

alleged answer all of which was filed with the Clerk of the Franklin County Common Pleas

Court .Also attached to the Complaint on Cognovit Note was a affidavit sworn to by a Mr.

Felex Melchor attesting amongst other issues that a copy of the note is attached hereto as

exhibit A. P•^

Mr. Cimpermnan's alleged answer does refer to a warrant of attorney as being annexed to and

mentioned in the foregoing complaint. There is not a warrant of attorney attached to Mr.

Cimperxnnan's alleged answer nor any other exhibit.

On August 17, 2007 the Honorable Judge Richard Frye docketed a Judgment Entry against

Michael F. Colley and James M. Ryan in the amount of $324,232.80 plus interest at the rate of

$83.309816 per day. From January 4, 2006 plus late fees in the amount of $ 6,981.72 ,

insurance in the amount of $3,451 , costs in the amount of $1,454 and attorney fees in the

amount of $8,548.

On September 14, 2007 Appellant through counsel filed an appeal to the tenth Appellate

District Court of Appeals. A Decision was issued by the tenth Appellate District Court of

Appeals on March 18, 2008 affirming the Trial Court's Judgment Entry.

On or about August 1, 2011 Appellant , Pro se , filed a Motion to Vacate Void Judgment as

well as an answer of Defendant . On or about August 15, 2011 Appellant filed an Amended

Answer and Counterclaim. Various filing ensued with the Trial Court docketing its Journal

Entry Denying Defendant Ryan's Motion to Vacate Void Judgment and Motion to Dismiss and

Granting Plaintiff's Motions to Strike. . Appellant filed an appeal to the Franklin County

Court of Appeals on December 7, 201 l, Pro se. The Franklin County Court of Appeals

issues its Decision and Judgment Entry affirming the Trial Court's Judgment on September 25,

2012. On October 5, 2012 Appellant filed a Motion for Leave to Proceed which the Appea'ls

Court denied on October 9, 2012. It is from this Decision, Judgment Entry and Denial of

Motion for Leave to Proceed that Appellant has filed this appeal. While the facts of this case

include other issues these facts are relevant to this Memorandum in Support of Jurisdiction.

P.8

The case involves substantial Constitutional issues and well established Law of this State and

in the Tenth Appellate District . Having said that Appellant does admit that he is some what

amazed as to why this particular Tenth District panel of Judges of which two of the three

Judges were the Court in Huntington Natl. Bk. v 199 S. Fifth St. Co., supra, ,have refused to

consider its own past decision regarding void judgments which decision reaffirmed the strict

requirements of Ohio Revised Code Section 2323.13 A

Be that what it may the record of this case clearly establishes that Mr. Cimperman simply

failed in his duty to provide to the Trial Court the original warrant of attorney making his

confession of judgment flawed and the Judgment of the Trial Court void ab initio.

The issue the Constitutionality of Ohio Revised Code Section 2323.52 and specifically

Sections A(3) & A(D)(2) takes Appellant back to the 1950's & 60's and the contentious

litigation regarding Civil Rights.. It appears to Appellant that this argument is so fundamental

to the rights of the poor, their inability to hire an attorney and to their right to a day in Court

that one really has to wonder where the American Civil Liberties Union were when this

legislation was debated at hearings. Appellant believes that the Constitutionality of Ohio

Revised Code Section 2323.52 and specifically Sections A(3) & A(D)(2) will be decided one

way or another in the near future , so why not in this Court.

Appellants final issue is clearly an error on the part of the Trial Court and the Franklin

County Court of Appeals. Civil Rule 60 (B) is not the proper procedure to address a Motion to

Vacate a Void Judgment and the Trial Court's conversion of Appellant's Motion to Vacate

Void Judgment to a Civil Rule 60(B) Motion clearly prejudiced Appellant's case. .

P.9

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law # l: The language of Ohio Revised Code Section 2323.13(A) requires anattorney confessing judgment to present the original warrant of attorney to the Trial Court atthe time the attorney makes confession.. Because the requirements of Ohio Revised CodeSection 2323.13(A) are jurisdictional failure to present the original note and warrant ofattorney render any cognovit judgment entered void ab initio for failure to invoke the subjectmatter jurisdiction of the Trial Court . Any appeal from the void cognovit judgment is anullity. The principal of res judicata including the doctrine of law of the case arising from anappeal of the void cognovit judgment is also a nullity and can not used to bar revisiting thecase in a subsequent appeal.

Ar uigu nent: Appellant argues in this appeal that his right to challenge the subject matter

jurisdiction of the Trial Court in this case is without limits in that subject matter jurisdiction of

the Trial Court was never was invoked due to non compliance with the mandatory requirements

of Ohio Revised Code Section 2323.13(A) by Attorney Anthoney J. Cimperman when he

purportedly confessed judgment to the Trial Court on behalf of Appellant but failed to present

the original cognovit note, the warrant of attorney and confession of judgment to the Trial

Court at the time of confession of judgment for Appellant there by failing to invoke the subject

matter jurisdiction of the Trial Court to act upon Plaintiff's claim for a cognovit judgment.

Without invoking the subject matter jurisdiction of the Trial Court any judgment rendered by

the Trial Court is void ab initio as well as any appeals taken there from are also void. .

The law in the Tenth Appellate District is firmly established that strict compliance with the

statutory scheme set forth in Ohio Revised Code Section 2323.12 and 2323.13 must be strictly

complied with in order to obtain a cognovit judgment. The Franklin County Court of

Appeals recently reaffirmed establish law on this issue where it held in Huntington Natl. Bank v

199 S. Fifth St. Co., 2011-Ohio-3707 @21 :"In the final analysis, the language of R.C.2323.13(A), as the Supreme Court interpreted it in Lathrem v Foreman, (1958) 168 Ohio St. 186,, requires an attorney confessing judgment to present the original warrant of attorney to the trialcourt at the time the attorney makes the confession; the plaintiff may then choose to file either

Pe10

the original warrant or a copy of it with the clerk for purposes of maintaining the record. Becausethe requirements of R.C. 2323.13(A) are jurisdictional, plaintiffs failure to present the originalnote and warrants of attorney renders the cognovit judgment entered void. See Klosterman at

¶25."

Yet the Franklin County Court of Appeals did find that the cognovit judgment

docketed against Appellant by the Trial Court to be valid by holding that the law of the case

doctrine from a previous appeal of the case prohibited revisiting the Trial Court case even in the

face of compelling evidence that the Trial Court's subject matter jurisdiction was never invoked

to issue the cognovit judgment . The law of Ohio does not support this Tenth District Appeals

Court Decision ..

This Court in Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980 stated @ 11:

"If a court acts without jurisdiction, then any proclamation by that court is void." Id.; Patton v.

Diemer(1988), 35 Ohio St.3d 68, 518 N.E.2d 941, paragraph three of the syllabus."

This Court has recently expressed its concern over noncompliance with mandatory

requirements contained in the Ohio Revised Code. Recently in State v Fisher, 128 Ohio St. 3d

92 , 2010-Ohio-6238 this Court set forth its opinion regarding res judicata as it applies to

attempts by courts to disregard statutory requirements in their judgments when it stated in

its Syllabus No. 1: "A sentence that does not include a statutory mandated term of post release

control is void, is not precluded from appellate review by principals of res judicata,

and may be reviewed at any time , on direct appeal or by collateral attack." This Court went on

to hold @ 40 :"principals of res judicata , including the doctrine of the law of the case , do noi

preclude appellate review." followed by State v. Greenleaf, 2012-Ohio-686 , State v Billiter,

Slip Opinion 2012_Ohio-5144 (which further supports Appellant's time line argument.)

This Court's decision in State v Fischer , supra, was argued to the Franklin County

Court of Appeals in this case.. It was disregarded in favor of the law of the case doctrine. P.11

Appellant argues, just as surely many wronged litigants will from the forthcoming

foreclosure debacle resulting from Fed Home Loan Mtge. Corp. v Schwartzwald, supra, , that

the State may not deny equal treatment under the law to one group of litigants while granting

relief to another group of litigants in its review of void judgment cases . Distinguishing the

law of the case holdings in State v Fisher and State v Greenleaf , supra, away from Appellant's

case as the Franklin County Court of Appeals has clearly done clearly denies

Appellant's rights to Equal Protection guaranteed by Article I, Section 1& 16, Ohio

Constitution and the Due Process and Equal Protection Clauses of the Fourteenth Amendment

of the United States Constitution especially since State v Fisher was argued to the Court.

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny

to any person the equal protection of the laws. The Equal Protection Clause prevents states

from treating people differently under its laws on an arbitrary basis. Harper v. Virginia State

Bd. of Elections (1966), 383 U.S. 663, 681, 86 S.Ct. 1079, 1089 (Harlan, J., dissenting).

Appellant argues that even though State v Fisher , State v Greenleaf and State v Billiter ,supra,

are criminal cases the substantive law related to the applicability of the law of the case doctrine

pertaining to void judgments is analogous and applicable to Appellant's case as well as those

many cases that will follow via Fed. Home Loan Mtge. Corp. v Schwartzwald, supra.

As discussed earlier in this Memorandum the criminal case State v.Hochhausler (1996), 76

Ohio St.3d 455 has been cited many times in civil cases regarding procedural due process.

It is established law that one may raise the issue of subject matter jurisdiction at any time , it

may be reviewed on direct appeal or collateral attack nor can waiver apply to a challenge to the

subject-matter jurisdiction of a court. Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853

@ 45.P.12

Appellant argues that he has been denied the benefit of established Law in Ohio as well as his

right to Equal Protection and Due Process guaranteed under the Fourteenth Amendment of the

United States Constitution and Article I Section 1& 16 of the Ohio Constitution by the Franklin

County Court of Appeals by its refusal to consider Appellant's challenge of the

subject matter jurisdiction of the Trial Court case and its void judgment under the Franklin

County Appeals Court holding that the law of the case doctrine prohibits review of the Trial

Court case.

Proposition of Law # 2: Ohio Revised Code Section 2323.52 and specifically Ohio RevisedCode Sections 2323.52 A(3)& D(2) violate Article I, Section 17 of the Ohio Constitution .thereby violating the Equal Protection and Due Process Clause of the United States Constitutionand Article I Section 16 of the Ohio Constitution.

Argument: Ohio Revised Code Sections 2323.52 A(3) & D(2) permit attorneys and their

clients to be exempt from being declared vexatious litigators in their pursuit of legal action

against another as long as the attorney represents the client in his legal pursuits. .

Appellant argues that the exemptions set forth in Ohio Revised Code Sections 2323.52 A(3),

& D(2) bestow a special privileges upon a class of attorneys and their clients in clear violation

of Article I, Section 17 of the Ohio Constitution.

Article I Sectionl7 states:

"Article 1 Section 17 Hereditary_privile es etc. 1851) "No hereditary emoluments, honors,or privileges shall ever be granted or conferred by this state."

Clearly the State through its adoption of Ohio Revised Section 2323.52 grants attorneys a

privilege of exemption from Ohio Revised Code Section 2323.52 in their practice of law on

behalf of clients. This Statute distinguishes the right of access to the Courts between Pro se

litigators and attorneys and their clients . What the Statute implies is that an attorney can be as

vexatious as he ehooses on behalf of his elient by filing questionable actions or motions ,P.13

even a vexatious motion against the Pro se litigator, but in doing so the attorney nor his client

may not be declared a vexatious litigator and have his or her future access to the Courts

conditioned upon prior approval of a Court .

But the Pro se litigant who chooses to file multiple actions or motions is subject to being

declared a vexatious litigator pursuant to Ohio Revised Code Section 2323.52 having his or

her access to the Courts subject to approval, which in Appellant's case before the Franklin

County Court of Appeals access was denied with out cause or explanation. ..

Discrimination based upon on education or financial ability to pay in order to obtain access

to the Courts smacks of the Civil rights actions of the 50's & 60's.

Unfettered access to the Courts is the most fundamental Constitutional Right under the

Fourteenth Amendment of the United State Constitution and Article I Section 16 of the Ohio

Constitution. It is clearly unconstitutional to permit attorneys and their clients to be exempt

from the shackles of Ohio Revised Code Section 2323.52 et seq. while making Pro se litigants

subject to such an restrictive law.

Statutory privilege is unconstitutional in the State of Ohio. Attorneys, their clients and Pro se

litigants must be treated equally under the law and subject to the same conditions and

restrictions contained in Ohio Revised Code Section 2323.52. To grant a special privilege to

attorney's and their clients to be exempt from Ohio Revised Code Section 2323.52 violates

Article I Section 16 & 17 of the Ohio Constitution and violates the Fourteenth Amendment of

the United States Constitution.

Proposition of Law # 3: Ohio Civil Rule 60(B) has no application to void orders . A TrialCourt's sua sponte conversion of a Motion to Vacate a Void Order or Judgment to a Civil Rule60 (B) motion shall on appeal be reversed for further proceeding in the Trial Court in

accordance with applicable law .

Argument: Appellant argues that the Franklin County Court of Appeals made clear error P.14

in not reversing the T'rial Court's decision to convert Appellant's Motion to Vacate a Void

Judgment to a Civil Rule 60(B) Motion as established law clearly states that a Civil Rule 60 (B)

Motion has not application to void orders. Recently the Fourth Appellate District held in Milton

Banking Co. v. Dulaney, 2010-Ohio-1907 @ 17: -

"The significance of this distinction is that Civ.R. 60(B) has no application to void orders.Civ.R. 60(B) Staff Comment ("It should be noted that Rule 60(B), unlike Federal Rule 60(b),does not provide for vacation of a void judgment. *** Any court has inherent power to vacatea void judgment[.] *** In effect then Rule 60(B) deals with vacation of voidable judgments.")(emphasis sic); Patton v. Diemer (1988), 35 Ohio St.3d 68, at paragraph four of the syllabus."

Contrary to the findings by the Franklin County Court of Appeals Appellant was prejudiced by

the Trial Court's conversion of his Motion to Vacate Void Judgment to a Civil Rule 60 (B)

motion as the Trial Court's analysis for a Civil Rule 60 (B) motion would have included such

items as the change of terms interest rate agreement between Appellant and Sky Bank, the 30

default notice provision contained in the referenced documents, as well as other conditional

agreements that provided Appellant a meritorious defense to Sky Banks complaint. But

Appellant was not provided an opportunity to present these documents by affidavit for

consideration as he was not given notice of the conversion by the Trial Court. Clearly an

injustice has been imposed upon Appellant by the Trial Court's ignoring the Civil Rules and

established law pertaining to Motions for Vacating Void Judgments or Orders. The Franklin

County Court of Appeals Judgment should be reversed .

Conclusion: For the reasons discussed above , this case involves matters of public and great

general interest and many substantial constitutional questions. Appellant requests that this

Court accept jurisdiction in this case so that all the important issues and propositions of law be

reviewed on their merits.

P.15

CERTIFICATE OF SERVICE

I hereby certify that a true copy of this Memorandum in Support of Jurisdiction was sent byordinary U.S. Mail to either counsel for Appeilee's or to the Appellee's on the November 8^'

2012 to:

Stephen A Santanangelo Esq.Weltman Weinberg & Reis Co.LPA175 South Third StreetColumbus Ohio 43215Attorney for Sky Bankssantanan^elo(a)weltn^an.com

Matthew G. Burg #0072556Weltrnan Weinburg & Reis, Co. L.P.A.323 West Lakeside Ave. Suite 200Cleveland , Ohio 44113(216)685-1111(216)685-4345 faxrnb^tr^ a weltman.coinAttorney for Appellee D.B. Midwest LLC,Huntington National Bank, Sky Bank

John R. Wirthlin Esq.Weltman , Weinberg & Reis Co. LPA

525 Vine Street Suite 800C^einnati Ohio 45202A^oney for Huntington National Bank,Sky Bank, D.B. Midwest LLC& Felex Melchor

Anthoney J. Cimperman Esq.3145 N. High StreetColumbus Ohio 43202Attorney for Michael F. Colley

Michael F. Colley Esq.4200 Dublin RoadColumbus Ohio

Michael Dewine Esq.Attorney General of Ohio30 E. Broad StreetColumbus Ohio 43215

Columbus Ohio 43209614-670-4396

QA001 - D38

iN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

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Sky Bank et al.,

Plaintiffs-Appellees,

v.

Michael F. Colley et al.,

Defendants-Appellees,

(James M. Ryan,

Defendant-Appellant).

, NO. 11Ap-1075(C.P.G No. o^CVH-o8-iob23 }

(REGLILAR CALENDAR)

JUDGMENT ENTRY

For the reasons stated in the decision of this court rendered herein on

September 2S; 2012, appellant's assignments of error are overruled and it is the judgment

and order of this court that the judgment of the Franklin County Court of Common Pleas

is affirmed. Sky Bank's motion to dismiss appeal is denied.

CONNOR, J., KLATT and FRENCH, JJ.

ByJudge John A. Connor

QA041 - D39

Date: 09-25-2012

Case Title: SKY BANK -VS- MICHAEL F COLLEY

Case Number: 11AP001075

Type: 7EJ TRIAL COURT JLIDGMENT AFFIRMED

So Ordered

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fs/ 3udge John A. Connor

Electronically signsd on 2012-Sep-25 page 2 of 2

OA001 - D40

Court Disposition

Case Number: 11 AP001075

Case Style: SKY BANK -VS- MIGHAEL F COLLEY

Motion Tie Off }nformation:

1. Motion CMS Document !d: 11AP0010752 970000

Document Title: 05-09-2012-MOTION TO DISMISS

Disposition: 3200

OA000 - W28

iN THE COURT OF APPEALS OF flHIO

TENTH APPELLA'I`E DISTRTCT

Plaintiffs-Appellees,

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Sky Bank et ai.,

v.

Michael F. Colley et al.,

Defendants-Appeilees,

(James M. Ryan,

Defendant-Appellant)

No. l^l?-1a75(C.P.C. No. o^CVH-o8-io623 )

(REGULAR CALENDAR)

D E C I S I O N

Rendered on September 25, 2oi2

Weltman, Weinberg & IZeis, Co., ^.P.A•^ ^a^h^ G• Burg,

and John R. Wzrthlin, for appellee Sky Bank.

James M. Ryan, pro se.

APPEAL from the Franklin County Caurt of Common Pleas

CONNOR., J.{q 1} Defendant-appellant, James M. Ryan, appeals from a judgment of the

Franklin County Court of Common Pleas denying appellant's mation to vacate judgment,

which the triai court sua sponte converted to a mation for relief from judgment under

Civ.R. 6o(B}. The court's judgment also denied appellant's motion to dismiss the case for

lack of personal jurisdiction and granted motions by other parties to strike appeilant's

counterclaim, answer, and amended complaint. Plaintiff-appellee, Sky Bank, has not filed

an appellee's brief in this case, but has f^led a motion to dismiss the appeal on the grounds

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that issues presented here have been previously decided by this caurt and are therefore

res judicata.{¶ 2} Sky Bank abtained, on August z7, 200^, a judgment on a cagnovit nate

against appellant and other parties. This court affirmed the judgment on appeal. Sky

Bank u. Coitey, ioth Dist No. o^AP-^5^, 2oo8-Ohio-121^. Some three and one-half years

after our decision, appellant attempted ta revive the case with a series of filings in the trial

court. On August i, 2oZ^t, appellant filed a"Nlotion ta Vacate Void Judgment." At that

time he also filed an answer to the ariginal cornplaint. On August 15, 2oi^, appellant filed

an amended answer and counterclaim. Sky Bank and other parties responded with

various motions to strike and motions to dismiss these additional filings. On October 1^,

2011, appellant filed a motion ta dismiss the ariginal eamplaint by Sky Bank that

commenced the matter, asserting that he was never served with the complaint.

{¶ 3} The trial court collectively treated appeIlant's motion to vacate vaid

judgment and motion to dismiss as a motion for relief from judgment pursuant to Civ.R.

6a(B). The trial court denied relief from judgment in part on the basis that the issues

raised in appellant's motions had been considered by this eourt upon appeal, and that our

appellate judgment precluded further litigatian on all issues that were raised or could

have been raised in the initial appeal.{¶ 4} Appellant has timely appealed and brings the following four assignments of

error:[I.] The Franklin County Clerk of Court's failure to notifyJames M. Ryan of the Judgment Entry that constituted a FinalAppealable Order issued on August i^, 2007 tolls the time forAppellant's appeal. The Trial Court erred in not includingcivil Rule 58 (B) language in its November 15, 2011 JaurnalEntry and its Judgment Entry dated August 1^, 200'7 whichalso was without directions to serve counsel with the Entry.

[iI.] The Trial Court Erred in its sua sponte conversion of theMation to Vacate Void Judg,ment ta a Civil Rule 60 (B)Motion and Erred in its denying Defendant Ryan's Motion toVacate Void Judgment.

[III.] The Trial Court Erred in Denying Defendant Ryan'sMotion to Dismiss Plaintiff Sky Bank's Complaint.

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OA000 - W30

No. 11AP-10753

[I^-] The Trial Court Erred in Granting PlaintifFs Niotions toStrike and Motion to Dismiss filed September 12, 2011 &Plaintiff's Motion to Strik^: and Motion to Dismiss withPrejudice dated October 3, 2o^r.

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{¶ 5} ^e first consider Sky Bank's motion to dismiss this appeal on grounds of res

judicata. While res judicata may provide us with a basis for afi:irming the trial court's

denial of Civ.R. 6o{Bj relief, it does not bar this aPPeal entirely This is n°t a repetitive

appeal, but an initial appeal from the trial court's denial of relief from judgment. Sky

Bank's motion to dismiss the agpeal is denied.

{^i g} Appe'dar^t's first assignn^ent of error asserts that the cierk of court failed to

notify appellant of the initial judgment in ^oo^. Appellant asserts that this tolls the time

for appeal from that judgment. Because appellant did in fact timely appeal to this eourt

from the ^007 judgment, the need for tolling in this case is difficult to discern, as is the

object of this assignment of error enti^'elY. APPellant's first assignment of error is

overruled.{¶ 7} Appellant's second assignment of error asserts the trial court erred in both

denying appellant's motion t° vacate a void judgment and in sua sponte converting thatellant ar esmotion to a motion for relief from judgment pursuant to Civ.R. 6o(B). App gu

that a court's judgment that is void ab initi-o represents a nullity that may be vacated by

the trial court without undergoing a Civ.R. 6o(B} analysis. This basic proposition is

corre^t. The authority to vacate a void judgment "is not derived from CivR. 6o(B}, but

rather constitutes an inherent power possessed by the court•"^IQPIe Dell ^lanor v.

Peterson,lith Dist. No. g^-P-oo3g CFeb.11,1994)^ citing Patton v. I3iemer, 35 Ohio St.3d

68, 70 (i988). The accuracy of this legal proposition, however, does not alter the result in

this case because no prejudicial error resulted fram the trial court's applica.tion of Civ.R

C^o(B) analysis to appellant's motion.

{¶ &} Appellant argues that the initial trial court judgment in this matter was void

because he wa.s never served with the initial complaint and the court thus never acquired

personal jurisdiction over him. The judgment against appellant is based upon a cognovit

note, "By its very terms, a cognovit note allows for judgment to be taken against the

debtor-party without notice or hearing[,]" and invokes a waiver af personal jurisdiction.

Dollar Bank v. The ^err^stein Group, Fnc., ^i ^l•^io App.3d 53©^ 533 (*-o^ Dist.^99i).

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There is na issue of personal jurisdiction in this case. While a defendant may still argue

lack of subject-matter jurisdictian in a cognovit note actian,see generalIy, Ardingtan

Bank u. BEE,Inc.,loth Dist. No. loAP-4^., 2oi©-Ohio-6o40, that aspect of the matter was

fully addressed in our 2flo8 decision on direct appeal and our' disposition of that issue

stands as the law of the case and may not be revisited• 'I'he trial court did nat err in

denying appellant's motion to vacate a void judgment. Appellant`s seeond assignment of

error is averruled.{¶ 9} Appellant's third assignrnent of errar asserts vanaus pracedural defects in

the proceedings leading to judgment on a cognovit note. All of these issues vvere raised in

the priar appeal to this courk from that judgment, were addressed by this eaurt and faund

without merit, and could not have provided grounds far relief from judgment in the trial

caurt. Appellant's third assignment flf error is averruled.

{¶ i0} Finally we turn ta appellant's faurth assignment af error, which asserts that

the trial court erred in striking his amended complaint and counterclaim. Qn October 3,

2o^i, IDB Midwest, LLC, an assignee of the original judgment in this case, filed a motian to

strike app,ellant's answer, amended answer, and counterclaim. an September i2, 2011,

tv^,o parties nat parkicipating in this appeal, Felex Melchor and Huntington Natianal Bank,

filed motians to strike appellant's answer, amended answer, and counterclaim.

}¶ ii} The trial caurt granted these motions as part of its judgment denying relief

from judgment to appellant, Based upon the status of the case and the fact that

appellant's pleadings were filed after the trial caurt had rendered judgment in t't'le n^atter

some three years before, these pleadings were well out of rule and properly struck by the

trial court. Appellant's fourth assignment of errar is accordingly overruled.

{^ 12} 3n accardance with the faregaing, appellant's four assignments of error are

overruled and the judgment of the Franklin County Court of Common Pleas denying his, ^ • .c^.,.^. .a Cln Ba zr,lr'.g

motions to vacate vaid judgment and motion to dismiss comp^airi^ ^s a^^ulileu• ^^-,^

motion to dismiss appeal is denied.Judgment a, ffzrmed;

motion to dismzss appeal denied.

KLATT and FRENCH, JJ., concur.

OA002 - M75

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Sky Bank et al.,

Plaintiffs-Appellees,

v.

Michael F. Colle^r et al.,

Defendants-Appellees,

(James M. Ryan,

Defendant Appellant).

. No. lu1P-io75

. {REGULAR CALENDAR}

JOURNAL ENTRY

Appellant's October 5, 20^2 application for leave to proceed with the filing

of a motion for reconsideration and motion to certify are denied.

/S^ JUDGEJudge John A. Connor

aAao2 - r^^ 6

Date: 10-09-2012

Case Title: SKY BANK -VS- MICHAEL F COLLEY

Case Number: 11AP001075 `

Type: 70URNAL ENTRY

So Ordered

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!sJ Judge 3ohn A. Connor

Electronically signed on 2012-Qct-09 page 2 of 2

oAOa2 - M^^

Court Disposition

Case Number: 11 AP001075

Case Style: SKY BANK -VS- MICHAEL F COLLEY

Motion Tie Off Information:

1. Motion CMS Document Id: 11AP0010752 980000

Document Titie: 10-05-2012-MOT10N

Disposition: 3200