[Cite as Wells Fargo Bank, N.A. v. Henry, 2014-Ohio-3768.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    PORTAGE COUNTY, OHIO


WELLS FARGO BANK, N.A.,                                :     OPINION

                 Plaintiff-Appellee,                   :
                                                             CASE NO. 2013-P-0007
        - vs -                                         :

FELICIA HENRY, et al.,                                 :

                 Defendant-Appellant.                  :


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2010 CV
1845.

Judgment: Affirmed.


Scott A. King and Nicholas W. Myles, Thompson Hine, LLP, Austin Landing 1, 10050
Innovation Drive, Suite 400, Dayton, OH 45342 (For Plaintiff-Appellee).

Felicia Henry, pro se, 1150 Creekledge Court, Streetsboro, OH 44241 (Defendant-
Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from the Portage County Court of Common Pleas.

Appellant Felicia Henry appeals from the trial court’s judgment denying her pro se

common law motion to vacate. On appeal, she claims that appellee Wells Fargo N.A.

lacked standing to bring suit and that the notice of foreclosure failed to comply with

various Department of Housing and Urban Development (HUD) regulations. For the

following reasons, we affirm.
       {¶2}   On November 7, 2008, appellant and James R. Bowden (“Bowden”),

defendant but not a party to this appeal, executed a note in favor of NVR Mortgage

Finance, Inc. (“NVR”), and a mortgage in favor of Mortgage Electronic Registration

Systems, Inc. (“MERS”), as nominee for NVR and its successors. The loan was for

$217,846.00 and secured by property located at 1150 Creekledge Court, Streetsboro,

Ohio 44241. NVR specially indorsed the note to appellee, Wells Fargo Bank, N.A.

(“Wells Fargo”), and Wells Fargo indorsed the note in blank. On August 20, 2010,

MERS, as nominee for NVR, executed an assignment of mortgage in favor of Wells

Fargo.

       {¶3}   Thereafter, on December 3, 2010, Wells Fargo filed a complaint in

foreclosure seeking the balance due on the note and to foreclose the mortgage.1 The

complaint alleged that Wells Fargo was the holder of the note and complied with all

conditions precedent.      The note, mortgage, and assignment of mortgage were all

attached to the complaint as exhibits. Appellant filed a pro se answer indicating that

she wished to “save the property.” However, appellant’s answer did not set forth any

legal defenses or deny the complaint’s allegations. Appellant also did not raise in her

answer any issue regarding standing or assert that Wells Fargo had failed to satisfy

any conditions precedent. Bowden did not file an answer.

       {¶4}   On April 18, 2012, Wells Fargo filed a motion for summary judgment

against appellant and a motion for default judgment against Bowden. The affidavit

attached to the motion for summary judgment alleged that Wells Fargo was the holder

of the note and mortgage. Neither appellant nor Bowden responded. On July 17,


1. The complaint did not seek personal judgment against Bowden on the note as his obligation was
discharged in bankruptcy. Although Bowden was a named defendant below, he is not a party in this
appeal.


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2012, the trial court entered summary judgment on the note and mortgage against

appellant, granted a default judgment against Bowden, and entered a decree of

foreclosure. Neither appellant nor Bowden appealed.

      {¶5}   On November 27, 2012, Wells Fargo filed a notice of sheriff’s sale, which

was scheduled for December 17, 2012. On December 3, 2012, appellant filed a pro se

common law motion to vacate. In her motion, appellant alleged for the first time that

Wells Fargo did not have standing because the note had been placed into Ginnie Mae

Remic Trust 2008-093 (“Trust”) (in which Wells Fargo serves as trustee), the note was

not transferred to Wells Fargo, the note and mortgage were separated and the

mortgage was destroyed when the note was securitized. Appellant also alleged that

the assignment was fraudulently executed because Wells Fargo and its foreclosure

representative brought this and other similar actions and are subject to other lawsuits.

Appellant requested an evidentiary hearing contending that Wells Fargo’s actions

violated the Fair Debt Collection Practices Act, the Truth in Lending Act, and the Real

Estate Settlement Procedures Act.

      {¶6}   Attached to appellant’s motion to vacate was an affidavit from William

McCaffrey (“McCaffrey”), a “securitization analyst” with 30 years of experience in the

banking industry. He averred that because the property was placed into the Trust, the

Trust is the only real party in interest with standing to enforce the note.

      {¶7}   On application from Wells Fargo, on December 12, 2012, the trial court

withdrew the property from the scheduled sheriff’s sale.

      {¶8}   On December 24, 2012, Wells Fargo filed an opposition to appellant’s

motion to vacate.     Wells Fargo argued that appellant’s motion should be denied

because she failed to oppose the motion for summary judgment and did not timely


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appeal the order of summary judgment and decree of foreclosure. Wells Fargo also

argued that appellant made no mention of Civ.R. 60(B) or any element for a motion to

vacate to which she could establish she is entitled to relief from judgment. Wells Fargo

further argued that appellant’s motion failed on the merits because Wells Fargo

demonstrated standing at the time it filed the complaint.

        {¶9}    On January 4, 2013, the trial court determined appellant’s motion to

vacate was not well-taken, and denied the motion without a hearing. The court held

that Wells Fargo demonstrated standing to collect on the note and foreclose the

mortgage by attaching to the complaint the note and mortgage, along with the notice of

assignment of mortgage to Wells Fargo which showed it was executed prior to the filing

of the complaint.       Appellant timely filed a pro se appeal and asserts the following

assignments of error for our review:2

        {¶10} “[1.] The trial court committed prejudicial error in granting Appellee

summary judgment without holding a hearing on Appellant’s Motion to Vacate/Set

Aside Judgment.

        {¶11} “[2.] The trial court was fully aware there was no admissible evidence

before it to render summary judgment. Further the trial court knew the alleged Plaintiff

did not exist and there was no legal entity before the court with standing and capacity

to sue Appellant.”

        {¶12} Appellant’s assignments of error are interrelated.                  Thus, for ease of

discussion, we will address them together.




2. Another sheriff’s sale was scheduled for May 13, 2013. However, on application from Wells Fargo that
it did not want to proceed with the sale during the appeal, the trial court withdrew the property from the
scheduled sale.


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      {¶13} A trial court’s denial of a common law motion to vacate is reviewed under

an abuse of discretion standard. See Aurora Loan Services, LLC v. Cart, 11th Dist.

Ashtabula No. 2010-A-0024, 2011-Ohio-2450, ¶18, citing Terwoord v. Harrison, 10

Ohio St.2d 170, 171 (1967); see also Quantum Servicing Corp. v. Haugabrook, 9th

Dist. Summit No. 26542, 2013-Ohio-3516, ¶7. However, because appellant argues

that Wells Fargo did not have standing to file the foreclosure complaint, and, therefore,

that the trial court lacked jurisdiction over the matter, she presents a legal question that

this court reviews de novo. Haugabrook, supra, at ¶7.

      {¶14} Thus, we are called upon to determine whether Wells Fargo had standing

at the time it filed its complaint.

      {¶15} For the reasons that follow, this court must follow the Ohio Supreme

Court’s recent decision in Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio

St.3d 13, 2012-Ohio-5017, involving a mortgage foreclosure action, and we agree with

the trial court that Wells Fargo had standing to obtain judgment.

      {¶16} Pursuant to Schwartzwald, standing is required to present a justiciable

controversy and is a jurisdictional requirement. Schwartzwald, supra, at ¶21-22; see

also CitiMortgage, Inc. v. Oates, 11th Dist. Trumbull No. 2013-T-0011, 2013-Ohio-

5077, ¶15-19, 24 (standing is not connected to a court’s subject matter jurisdiction).

Because standing is required to invoke the trial court’s jurisdiction, standing is

determined as of the filing of the complaint. Schwartzwald, 2012-Ohio-5017 at ¶24.

      {¶17} In this case, as stated, appellant never challenged Wells Fargo’s standing

in her answer to the complaint nor did she appeal the trial court’s order of summary

judgment. Rather, appellant raised the issue of standing for the first time in her motion

to vacate.


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      {¶18} Attached to her motion to vacate was an affidavit from securitization

analyst McCaffrey averring that the Trust is the only real party in interest with standing

to enforce the note. In the interest of judicial efficiency, we will assume that McCaffey’s

averments that the note was placed in the trust are accurate, and that Wells Fargo is

the trustee of the trust

      {¶19} Civ.R. 17(A) states in part: “Every action shall be prosecuted in the name

of the real party in interest. [A] * * * trustee of an express trust * * * may sue in his

name as such representative without joining with him the party for whose benefit the

action is brought.”

      {¶20} “A trustee technically is not a real party in interest as it does not have a

direct interest in the outcome of an action involving a trust; but by virtue of Civ.R. 17,

for purposes of simplification, etc., the trustee is permitted to bring the action.

Therefore, pursuant to Civ.R. 17 the trustee is an exception to the rule that an action

must be prosecuted in the name of the real party in interest.” Sec. Trust Co. v. Gross,

12th Dist. Butler Nos. CA83-06-054, CA83-06-058, and CA83-06-069, 1985 Ohio App.

LEXIS 9653, *13-14, citing DeGarza v. Chetister, 62 Ohio App.2d 149 (6th Dist.1978).

      {¶21} In the context of mortgage foreclosure proceedings, a trustee has standing

to bring an action. Wells Fargo Bank N.A., v. Freed, 3d Dist. Hancock No. 5-12-01,

2012-Ohio-5941, ¶34.

      {¶22} Thus, contrary to McCaffrey’s assertion, Wells Fargo, as trustee, is an

interested party under Civ.R. 17(A) with standing to bring this foreclosure action.

Accordingly, because appellant’s allegations, assuming they are true, failed to establish

that Wells Fargo could not file suit, the trial court did not need to hold an evidentiary

hearing on the matter.


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      {¶23} Appellant additionally claims that Wells Fargo violated various HUD

regulations. However, appellant failed to raise this argument below.

      {¶24} “‘It is well-settled that appellate courts “do not consider questions not

presented to the court whose judgment is sought to be reversed.” State ex rel. Porter

v. Cleveland Dept. of Public Safety, 84 Ohio St.3d 258, 259 * * * (1998) (* * *). This

court has held that a party’s failure to raise an issue at the trial court level acts as a

waiver of the issue on appeal. Sekora v. General Motors Corp., 61 Ohio App.3d 105 *

* * (1989) (* * *).’” Brown Bark v. Rubertino, 11th Dist. Lake No. 2009-L-046, 2009-

Ohio-5897, ¶22, quoting Russin v. Shepherd, 11th Dist. Geauga No. 2006-G-2708,

2007-Ohio-3206, ¶30. (Parallel citations omitted.)

      {¶25} Because the trial court never had an opportunity to consider appellant’s

present HUD arguments, they are waived and cannot be considered for the first time

on appeal.

      {¶26} Appellant’s first and second assignments of error are without merit.

      {¶27} For the foregoing reasons, appellant’s assignments of error are not well-

taken. The judgment of the Portage County Court of Common Pleas is affirmed. It is

ordered that appellant is assessed costs herein taxed. The court finds there were

reasonable grounds for this appeal.



TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion.



                                 ____________________




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COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion.

      {¶28} I agree with the majority’s decision to affirm the judgment of the trial court.

However, regarding the jurisdictional issue, I would apply Fed. Home Loan Mtge. Corp.

v. Rufo, 11th Dist. Ashtabula No. 2012-A-0011, 2012-Ohio-5930, based on the

reasoning of my dissent in HSBC Bank USA, N.A., v. Bailey, 11th Dist. Trumbull No.

2012-T-0086, 2014-Ohio-246. Thus, I concur in judgment only.




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