Top Ten Most Read Posts of 2015

Here is my annual top ten list. These are the ten most read blog posts for 2015, in order. Foreclosure issues continue to dominate, grabbing first, fourth, seventh, eighth and ninth most viewed slots.

  1. For the second year in a row, number one is Bank of America, N.A. v. George M. Kuchta, et al., 2013-0304. In Kuchta, the court held that a Civ. R. 60(B) motion cannot be used as a substitute for an appeal on the issue of standing in a foreclosure action, and cannot be used to collaterally attack the judgment. Res judicata applies to bar a party from asserting lack of standing in a motion for relief from judgment. Additionally, the court held that a court that has subject-matter jurisdiction over an action does not lose that jurisdiction because a party to the action does not have standing in that particular case. Lack of standing does not render a judgment void for lack of subject matter jurisdiction. Read the analysis of the merit decision here.
  2. Also taking second place for the second year in a row is Anderson v. Massillon, 2012-Ohio-5711, the case in which the court held that negligence, recklessness, willful and wanton misconduct represent different degrees of culpability, and defined all these terms.  Read the analysis of the merit decision here. Meanwhile, this case has yet to be tried, on the remanded issue of whether the firefighters in the case were reckless in their emergency run in this case which killed two people.
  3. State v. Clark, 2013-Ohio-4731 and Ohio v. Clark., 576 U.S.__(2015)   In a 4-3 decision, the Supreme Court of Ohio held that a child’s statement to his teachers about physical abuse constitutes testimonial evidence barred by the Confrontation Clause when the child has been found incompetent to testify. The case went up to the U.S. Supreme Court which reversed, in a unanimous decision written by Justice Alito, in which Justice Scalia, joined by Justice Ginsburg, concurred in judgment only, and Justice Thomas wrote a solo separate concurrence in judgment only. The U.S. Supreme Court held that the admission of a young child’s out-of-court statements to his teachers identifying the defendant as his abuser did not violate the Confrontation Clause, even though the child did not testify at the trial. Read the analysis of the U.S. Supreme Court decision here. This decision brought the blog’s most hits ever in a single day.
  4. The case of SRMOF 2009-1 Trust v. Shari Lewis et al, 2014-0485 came in fourth, demonstrating the continuing strong interest in foreclosure-related matters. The fascinating issue in this one was whether the plaintiff in a foreclosure action must have an interest in both the note and mortgage to have standing, or if an interest in just one is good enough. But after hearing argument, the court dismissed the case as improvidently certified (it came up on conflict certification), I think because of the complicating fact of Lewis’ bankruptcy. The court is hearing the same issues in Deutsche Bank Nat’l Trust Co. v. Holden, et al, 2014-0791, set for argument January 26, 2016. That case had been held pending the outcome in Lewis.
  5. D.W. v. T.L.,  2012-Ohio-5743. A perennial favorite about how a child’s last name is determined when the parents aren’t married and disagree about it. The court held that under its existing precedent, the test in a name change case is the best interest of the child, which in this case was to keep the mother’s name. The case was fifth on the most read list last year as well, which pleases me because it was successfully argued for the mother by my former student Ginger Bock.  Read the analysis of the merit decision here.
  6. The merit decision in Liming v. Damos, 2012-Ohio-4783. The court held that a purge hearing to impose a suspended sentence for failure to pay child support is a civil proceeding, and due process does not require the appointment of counsel for an indigent parent at the civil contempt purge hearing. This was number three last year, now down to six. Read the analysis of the merit decision here.
  7. Wells Fargo Bank, N.A. v. Horn,  2015-Ohio-1484. In this unanimous decision the court held that in a foreclosure action, while a plaintiff must have standing at the time suit is filed (this was the holding in Fed. Home Loan Mtge. Corp. v. Schwartzwald, 2012-Ohio-5017), proof of that standing may be submitted later in the proceedings. Read the analysis of this decision here.
  8. More on foreclosures.  In slot number eight was a Guest Post by my former colleague Adam Steinman, now at the University of Alabama School of Law, entitled, Standing and Subject Matter Jurisdiction in Ohio Foreclosure Actions: A Third Way? In this post, which you can read here, Professor Steinman analyzes the standing opinion in Kuchta (see number one, above) and argues that in asserting that there is a difference between a court’s “jurisdiction over a particular case” and “subject-matter jurisdiction,” the Supreme Court of Ohio has created a “third way,” encompassing the trial court’s authority to determine a specific case within that class of cases that is within its subject matter jurisdiction. It is only when the trial court lacks subject matter jurisdiction that its judgment is void; lack of jurisdiction over the particular case merely renders the judgment voidable. “So in Ohio, it seems, standing is a jurisdictional issue but not a subject-matter-jurisdictional issue,” wrote Steinman. “It will be interesting to see whether this aspect of Kuchta will have broader ramifications.”  We shall see.
  9. The merit decision in Federal Home Loan Mortgage Corp. v. Schwartzwald, 2012-Ohio-5017.  This was number one in 2013, and number four last year, and started it all by holding standing must be determined at the time the complaint is filed. Since Freddie Mac did not own the note and mortgage at the time it filed a foreclosure action against the Schwartzwalds, it lacked standing to bring the action. You can read the analysis of the case here.
  10. The merit decision in Schwering v. TRW Vehicle Safety Systems, Inc., 2012-Ohio-1481, in which the court held that a plaintiff may not voluntarily dismiss a claim without prejudice pursuant to Civ.R. 41(A)(1)(a) when a trial court declares a mistrial after the jury has been empaneled and sworn and the trial has begun. This totally technical civil procedure decision still gets many hits, and has been on the list every year. Read the analysis of the merit decision here.

 

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