[Cite as CitiMortgage, Inc. v. Patterson,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98360

CITIMORTGAGE, INC. PLAINTIFF-APPELLANT

vs.

DAVID L. PATTERSON, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-601901

BEFORE: Celebrezze, J., Stewart, P.J., and Sweeney, J.

RELEASED AND JOURNALIZED: December 13, 2012 ATTORNEYS FOR APPELLANT

John C. Greiner Harry W. Cappel Graydon Head & Ritchey, L.L.P. 1900 Fifth Third Center 511 Walnut Street Cincinnati, Ohio 45202-3157

ATTORNEYS FOR APPELLEES

For David L. Patterson, et al.

Grace Doberdruk Dann, Doberdruk & Wellen, L.L.C. 4600 Prospect Avenue Cleveland, Ohio 44103

For Allstate Insurance Company

Allstate Insurance Co., pro se 280 Executive Parkway West Hudson, Ohio 44236 FRANK D. CELEBREZZE, JR., J.:

{¶1} Plaintiff-appellant, CitiMortgage, Inc. (“CitiMortgage”), appeals the

judgment of the Cuyahoga County Court of Common Pleas granting a motion to vacate a

foreclosure judgment and sheriff’s sale brought pursuant to Civ.R. 60(B) in favor of

defendants-appellees, David and Marva Patterson (collectively “the Pattersons”). After

careful review of the record and relevant case law, we reverse the trial court’s judgment

and remand for further proceedings consistent with this opinion.

{¶2} This is an action in foreclosure stemming from a promissory note and

mortgage on which the Pattersons defaulted. On September 20, 2006, CitiMortgage filed

a complaint in foreclosure against the Pattersons. Attached to the complaint was a copy

of the note and mortgage naming First National Bank of Arizona as the lender. The

attached note also included an allonge of note bearing a blank indorsement. On February

28, 2007, CitiMortgage filed a notice of filing note and allonge of note evidencing the

assignment of the mortgage to CitiMortgage. The assignment of the mortgage to

CitiMortgage was executed on September 29, 2006, and filed with the Cuyahoga County

Recorder on October 13, 2006.

{¶3} On April 10, 2007, the trial court entered a stay pursuant to the Pattersons’

Chapter 7 bankruptcy proceedings. The stay was lifted on April 14, 2008, and the case

was reactivated. On June 25, 2008, CitiMortgage moved for default judgment. Following the Pattersons’ failure to appear at the default hearing, the magistrate granted

CitiMortgage’s motion for default judgment on August 15, 2008. Without objection, the

trial court adopted the magistrate’s decision on September 11, 2008.

{¶4} On November 24, 2008, the property was sold at sheriff’s sale, and the sale

was confirmed on December 4, 2008. On December 12, 2008, CitiMortgage filed a

motion to vacate the sale, and the trial court granted the motion on December 23, 2008.

Subsequently, the property was sold at sheriff’s sale on June 28, 2010.

{¶5} On June 28, 2010, the Pattersons filed a motion to stay the confirmation of

sale. In response, CitiMortgage filed a motion to vacate the June 28, 2010 sale, which

the trial court granted on September 27, 2010. On June 16, 2011, CitiMortgage filed a

notice of sale with the trial court and scheduled a new sheriff’s sale for July 11, 2011.

On July 8, 2011, the Pattersons filed an emergency motion to stay the sheriff’s sale and a

Civ.R. 60(B) motion to vacate the default judgment. The property was not sold at the

July 11, 2011 sheriff’s sale.1 However, the property was ultimately sold at sheriff’s sale

on October 3, 2011.

{¶6} On March 5, 2012, the trial court held a hearing on the Pattersons’ motion to

vacate the default judgment. On April 19, 2012, the trial court granted the motion to

vacate, stating in relevant part:

The trial court found the Pattersons’ July 8, 2011 emergency motion to stay the sheriff’s 1

sale to be moot based on CitiMortgage’s failure to sell the property at the July 11, 2011 sheriff’s sale. Upon review of the file, the motion for relief from judgment, and Plaintiff’s brief in opposition thereto, and pursuant to precedent

,[2] the motion for relief from judgment of Mr. and Mrs. Patterson is granted. Plaintiff filed the instant action on 09/20/2006, and attached copies of the Note and Mortgage upon which the case was based. Unfortunately for plaintiff, however, the evidence provided indicates that the mortgage was not assigned to Plaintiff CitiMortgage, Inc., until 10/13/2006, after the case was filed. Plaintiff, therefore, has not provided sufficient evidence of standing as required by Wells Fargo v. Jordan. As a consequence, the sheriff’s sale held 10/03/2011 is hereby vacated; the judgment rendered 09/11/2008 is also vacated; and the case is dismissed; without prejudice; final.

{¶7} CitiMortgage now brings this timely appeal, raising three assignments of

error for review:

I. The trial court erred as a matter of law by granting the Pattersons’ motion to vacate the judgment pursuant to Ohio Civ.R. 60(B).

II. The trial court abused its discretion in granting the Pattersons’s motion to vacate the judgment under Ohio Civ.R. 60(B).

III. The trial court erred as a matter of law by ruling that it lacked standing to prosecute the foreclosure action.

Law and Analysis

{¶8} For the purposes of this appeal, we review CitiMortgage’s assignments of

error out of order because its third assignment of error is dispositive. CitiMortgage

argues here that the trial court erred as a matter of law by ruling that CitiMortgage lacked

standing to prosecute the case.

I.

Wells Fargo Bank, N.A. v. Jordan, 8th Dist. No. 91675,

. 2 {¶9} Initially, CitiMortgage contends that if there were defects in its standing at

the time it filed the foreclosure action on September 20, 2006, those purported defects

were cured prior to the judgment of foreclosure pursuant to Civ.R. 17(A).

{¶10} In Ohio, Civ.R. 17(A) governs the procedural requirement that a complaint

be brought in the name of the real party in interest. Civ.R. 17(A) states in relevant part:

Every action shall be prosecuted in the name of the real party in interest. * * * No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest. Such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

{¶11} The real party in interest requirement “enable[s] the defendant to avail

himself of evidence and defenses that the defendant has against the real party in interest,

and to assure him finality of the judgment, and that he will be protected against another

suit brought by the real party at interest on the same matter.” Shealy v. Campbell,

,

(1985), quoting In re Highland Holiday

Subdivision,

,

(4th Dist. 1971). “The current holder

of the note and mortgage is the real party in interest in a foreclosure action.” Wells

Fargo Bank, N.A. v. Stovall, 8th Dist. No. 91802,

, ¶ 15, citing Chase

Manhattan Mtge. Corp. v. Smith, 1st Dist. No. C-061069,

.

{¶12} As stated, the trial court concluded that CitiMortgage did not have standing

to prosecute the foreclosure action in this matter because it was not assigned the mortgage

until approximately nine days after it filed the complaint for foreclosure against the Pattersons. Relying on Civ.R. 17(A), CitiMortgage contends that any purported defect in

its standing at the commencement of the foreclosure action was cured once it obtained the

assignment of mortgage prior to the entry of judgment in this matter. This court has

held, however, that a plaintiff’s lack of standing at the time a complaint is filed in a

foreclosure action cannot be cured by substituting the real party in interest for an original

party pursuant to Civ.R. 17(A). Wells Fargo Bank, N.A. v. Jordan, 8th Dist. No. 91675,

. In Jordan, we explained that

“Civ.R. 17(A) is not applicable unless the plaintiff had standing to invoke the jurisdiction of the court in the first place, either in an individual or representative capacity, with some real interest in the subject matter. Civ.R. 17 only applies if the action is commenced by one who is sui juris or the proper party to bring the action.”

Id. at ¶ 21, citing Travelers Indemn. Co. v. R. L. Smith Co., 11th Dist. No. 2000-L-014,

(Apr. 13, 2001). We concluded that “in a foreclosure

action, a bank that was not the mortgagee when suit was filed cannot cure its lack of

standing by subsequently obtaining an interest in the mortgage.” Id. at ¶ 24; see also

Deutsche Bank Natl. Trust Co. v. Triplett, 8th Dist. No. 94924,

, ¶ 12;

Wells Fargo Bank N.A. v. Byrd,

,

,

(1st Dist.).3

CitiMortgage challenges the validity of our holding in Jordan and asks this court to apply 3

the analysis developed in the Fifth, Sixth, Seventh, Ninth, Tenth, and Twelfth districts, which allows a party to cure any potential defect in standing prior to the entry of judgment pursuant to Civ.R. 17(A). U.S. Bank Natl. Assn. v. Bayless, 5th Dist. No. 09 CAE 01 004,

; Deutsche Bank Natl. Trust Co. v. Greene, 6th Dist. No. E-10-006,

; U.S. Bank, N.A. v. Marcino,

,

,

(7th Dist.); BAC Home Loans Servicing, L.P. v. Cromwell, 9th Dist. No. 25755,

; Countrywide Home Loan Servicing, L.P. v. {¶13} Recently, the Ohio Supreme Court addressed the issues of standing and real

party in interest as they relate to foreclosure actions in Fed. Home Loan Mtge. Corp. v.

Schwartzwald, Slip Opinion No.

(Oct. 31, 2012). Specifically, the court

reviewed whether, “[i]n a mortgage foreclosure action, the lack of standing or a real party

interest defect can be cured by the assignment of the mortgage prior to judgment.” Id. at

¶ 19.

{¶14} In discussing the requirement of standing, the Ohio Supreme Court stated,

“[i]t is an elementary concept of law that a party lacks standing to invoke the jurisdiction

of the court unless he has, in an individual or representative capacity, some real interest in

the subject matter of the action.” Id. at ¶ 22, citing State ex rel. Dallman v. Franklin Cty.

Court of Common Pleas,

,

(1973). The court

explained, “[b]ecause standing to sue is required to invoke the jurisdiction of the common

pleas court, ‘standing is to be determined as of the commencement of suit.’” Id. at ¶ 24,

citing Lujan v. Defenders of Wildlife,

,

,

(1992), fn. 5. “Thus, ‘post-filing events that supply standing that did not

exist on filing may be disregarded, denying standing despite a showing of sufficient

present injury caused by the challenged acts and capable of judicial redress.’” Id. at ¶ 26,

Thomas, 10th Dist. No. 09AP-819,

; Wash. Mut. Bank, F.A. v. Wallance,

,

,

(12th Dist.). citing 13A Wright, Miller & Cooper, Federal Practice and Procedure 9, Section 3531

(2008).4

{¶15} Applying these principles to the facts before it, the Ohio Supreme Court

held:

Here, Federal Home Loan concedes that there is no evidence that it had suffered any injury at the time it commenced this foreclosure action. Thus, because it failed to establish an interest in the note or mortgage at the time it filed suit, it had no standing to invoke the jurisdiction of the common pleas court.

Id. at ¶ 28.

This principle accords with decisions from other states holding that standing is determined 4

at the time the complaint is filed. See, e.g., Deutsche Bank Natl. Trust v. Brumbaugh,

,

(“If Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice * * *.”); U.S. Bank Natl. Assn. v. Kimball,

,

,

(“U.S. Bank was required to show that at the time the complaint was filed it possessed the original note either made payable to bearer with a blank endorsement or made payable to order with an endorsement specifically to U.S. Bank.”); Mtge. Electronic Registration Sys., Inc. v. Saunders,

,

(“Without possession of or any interest in the note, MERS lacked standing to institute foreclosure proceedings and could not invoke the jurisdiction of our trial courts.”); RMS Residential Properties, L.L.C. v. Miller,

,

(2011), quoting Hiland v. Ives,

,

(1966) (explaining that “‘[s]tanding is the legal right to set judicial machinery in motion’” and holding that the plaintiff had standing because it proved ownership of the note and mortgage at the time it commenced foreclosure action); McLean v. JP Morgan Chase Bank Natl. Assn.,

(Fla.App. 2012) (“the plaintiff must prove that it had standing to foreclose when the complaint was filed”); see also Burley v. Douglas,

(Miss. 2009), quoting Lujan v. Defenders of Wildlife,

,

,

(1992), fn. 5 (“‘standing is to be determined as of the commencement of suit’”); In re 2007 Administration of Appropriations of Waters of the Niobrara,

,

(2009) (“only a party that has standing may invoke the jurisdiction of a court or tribunal. And the junior appropriators did not lose standing if they possessed it under the facts existing when they commenced the litigation” [Footnote omitted.]). Schwartzwald at ¶ 27. {¶16} Next, the Ohio Supreme Court discussed the application of Civ.R. 17(A)

and, as this court articulated in Jordan, the Ohio Supreme Court rejected the notion that

Civ.R. 17(A) allows a party to cure the lack of standing after the commencement of the

action by obtaining an interest in the subject of the litigation and substituting itself as the

real party in interest. Id. at ¶ 39. According to the court:

Standing is required to invoke the jurisdiction of the common pleas court. Pursuant to Civ.R. 82, the Rules of Civil Procedure do not extend the jurisdiction of the courts of this state, and a common pleas court cannot substitute a real party in interest for another party if no party with standing has invoked its jurisdiction in the first instance.

***

The lack of standing at the commencement of a foreclosure action requires dismissal of the complaint, however, that dismissal is not an adjudication on the merits and is therefore without prejudice.

Id. at ¶ 38, 40.

{¶17} Significantly, the court declined to follow its previous plurality opinion in

State ex rel. Jones v. Suster,

,

,

, which

suggested that “[t]he lack of standing may be cured by substituting the proper party so

that a court otherwise having subject matter jurisdiction may proceed to adjudicate the

matter.” In choosing not to apply Suster, the court noted that “four justices declined to

join [the standing] portion of the opinion, and therefore it is not a holding of this court.”

Id. at ¶ 29, citing Ohio Constitution, Article IV, Section 2(A) (“A majority of the

supreme court shall be necessary to constitute a quorum or to render a judgment”). {¶18} In dismissing Federal Home Loan’s foreclosure action against the

Schwartzwalds without prejudice, the court concluded:

It is fundamental that a party commencing litigation must have standing to sue in order to present a justiciable controversy and invoke the jurisdiction of the common pleas court. Civ.R. 17(A) does not change this principle, and a lack of standing at the outset of litigation cannot be cured by receipt of an assignment of the claim or by substitution of the real party in interest.

Id. at ¶ 41.

{¶19} Thus, in light of the Ohio Supreme Court’s decision in Schwartzwald, we

find no merit to CitiMortgage’s arguments regarding Civ.R. 17(A) and its purported

ability to cure potential defects in standing.

II.

{¶20} Alternatively, CitiMortgage argues that, despite the trial court’s holding to

the contrary, it did have standing to prosecute the foreclosure action against the

Pattersons, as evidenced by its possession of the promissory note indorsed in blank at the

time the complaint was filed on September 20, 2006. We find the language utilized in

Schwartzwald to be vital to our review of whether the trial court properly relied on

Jordan in determining that CitiMortgage did not have standing in this matter.

{¶21} As discussed, the Ohio Supreme Court concluded in Schwartzwald that

Federal Home Loans did not have standing to invoke the jurisdiction of the common pleas

court because “it failed to establish an interest in the note or mortgage at the time it filed

suit.” (Emphasis added.) Id. at ¶ 28. Significant to the court’s holding is its deliberate

decision to use the disjunctive word “or” as opposed to the conjunctive word “and” when discussing the interest Federal Home Loans was required to establish at the time it

filed the complaint. The language depicts an apparent distinction from our holding in

Jordan, where we held that a party only has standing to invoke the jurisdiction of the

court when the plaintiff has offered evidence that “it owned the note and mortgage when

the complaint was filed.” (Emphasis added.) Jordan at ¶ 23. In our view,

Schwartzwald extends the limitations of our holding in Jordan and stands for the

proposition that a party may establish its interest in the suit, and therefore have standing

to invoke the jurisdiction of the court when, at the time it files its complaint of

foreclosure, it either (1) has had a mortgage assigned or (2) is the holder of the note.

{¶22} Based on our interpretation of Schwartzwald, the fact that CitiMortgage was

not assigned the mortgage until September 29, 2006, and did not record the assignment

with the Cuyahoga County Recorder until October 13, 2006, does not preclude a finding

of standing. Here, the record reflects that, unlike the plaintiffs in Schwartzwald and

Jordan, CitiMortgage was the holder of the note at the time it filed the foreclosure action

on September 20, 2006, based on CitiMortgage’s possession of the bearer paper that

secured the defendants’ mortgage.5 As a holder, CitiMortgage was entitled to enforce

the note, and thereby had a real interest in the subject matter of the instant foreclosure

action. See R.C. 1303.31(A)(1). As such, we conclude that CitiMortgage’s complaint

Pursuant to R.C. 1303.25(B) a “‘[b]lank indorsement’ means an instrument that is made by 5

the holder of the instrument and that is not a special indorsement. When an instrument is indorsed in blank, the instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.” (Emphasis added.) and its attached documents sufficiently established CitiMortgage’s standing to invoke the

jurisdiction of the common pleas court in this matter.

{¶23} Based on the foregoing, we find that the trial court erred in granting the

Pattersons’ motion to vacate the foreclosure judgment and sheriff’s sale. CitiMortgage’s

third assignment of error is sustained. Based on this finding, the remaining assignments

of error are moot.

{¶24} This cause is reversed and remanded to the Cuyahoga County Court of

Common Pleas so that it may reinstate the foreclosure judgment and sheriff’s sale.

It is ordered that appellant and appellees share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and JAMES J. SWEENEY, J., CONCUR