[Cite as Wells Fargo Delaware Trust Co. v. Parks, 2013-Ohio-418.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

WELLS FARGO DELAWARE TRUST                                C.A. No.   12CA010193
CO.

        Appellee
                                                          APPEAL FROM JUDGMENT
        v.                                                ENTERED IN THE
                                                          COURT OF COMMON PLEAS
THOMAS D. PARKS, et al.                                   COUNTY OF LORAIN, OHIO
                                                          CASE No.   05 CV 144283
        Appellants

                                DECISION AND JOURNAL ENTRY

Dated: February 11, 2013



        WHITMORE, Judge.

        {¶1}    Appellant, Thomas Parks, appeals from the judgment of the Lorain County Court

of Common Pleas, denying his motion for relief from judgment. This Court reverses.

                                                      I

        {¶2}    On August 20, 1998, Thomas and Darlene Parks appear to have executed a

mortgage, and a corresponding promissory note, in favor of Creative Mortgage Solutions.1

Creative Mortgage Solutions assigned the mortgage to ContiMortgage Corporation, and, in June

2005, ContiMortgage assigned the mortgage to “Wells Fargo Delaware Trust Company, as

Trustee for Ellington Acquisition Trust 2005-1.”

        {¶3}    On November 28, 2005, CitiBank, N.A. as trustee for the registered holders of the

Ellington Mortgage Loan Trust 2005-1, Asset-backed Certificates Series 2005-1-1, filed a



1
  Darlene Parks has since passed away, and Thomas Parks denies having executed the
documents.
                                                  2


complaint for foreclosure against Parks. Attached to the complaint was a copy of the 1998

promissory note executed by Parks in favor of Creative Mortgage Solutions. No documentation

was attached to the complaint to show CitiBank or Ellington Mortgage Loan Trust had obtained

an interest in the promissory note.

         {¶4}    Parks did not answer the complaint, and the court entered a judgment against him

in April 2006.      The house was sold to CitiBank at a sheriff’s sale in June 2006.           Parks

subsequently filed a motion to vacate the judgment, which the court ultimately granted. The

court ordered the sale vacated in January 2007. Parks, through counsel, then filed an answer to

the complaint.

         {¶5}    In April 2008, CitiBank requested the court substitute Wells Fargo as the plaintiff,

attaching the 2005 assignment of the mortgage from ContiMortgage to Wells Fargo as trustee for

the “Ellington Acquisition Trust 2005-1.” The court granted the substitution. Subsequently,

Parks filed a motion to substitute plaintiff for Regions Mortgage, another entity he believed

owned the mortgage, arguing that neither Wells Fargo nor CitiBank had standing to bring the

foreclosure action. The court denied his motion.

         {¶6}    In May 2010, Wells Fargo filed a motion for summary judgment, which the court

granted. No appeal was filed. Parks filed a motion for relief from judgment. The court denied

his motion without a hearing on February 10, 2012.            Parks now appeals and raises three

assignments of error for our review. To facilitate the analysis, we combine the assignments of

error.

                                                  II

                                 Assignment of Error Number One

         THE TRIAL COURT ABUSED ITS DISCRETION AND/OR OTHERWISE
         ERRED IN DENYING APPELLANT THOMAS PARKS’ MOTION FOR
                                               3


       RELIEF FROM JUDGMENT SINCE PARKS DEMONSTRATED THE
       FOLLOWING: (1) EXCUSABLE NEGLECT AND/OR ANY OTHER REASON
       JUSTIFYING RELIEF FROM JUDGMENT; (2) VALID DEFENSES TO THE
       PLAINTIFF’S CLAIMS; AND (3) [HAD] MOVED FOR RELIEF IN A
       REASONABLE TIME AFTER THE JUDGMENT.

                               Assignment of Error Number Two

       THE TRIAL COURT ABUSED ITS DISCRETION AND/OR OTHERWISE
       ERRED IN OVERRULING APPELLANT THOMAS PARKS’ MOTION IN
       THE ABSENCE OF A FACTUAL DETERMINATION OF THE ALLEGED
       GROUNDS AND BY FAILING TO CONDUCT AN EVIDENTIARY
       HEARING UPON PARKS’ REQUEST.

                              Assignment of Error Number Three

       THE TRIAL COURT ERRED IN: (1) ALLOWING SUBSTITUTE PLAINTIFF
       WELLS FARGO TO FILE A MOTION FOR SUMMARY JUDGMENT
       WITHOUT GRANTING LEAVE PURSUANT TO THE BRIEFING
       SCHEDULE ON JULY 20, 2007, OVER TWO YEARS AFTER THE
       DISPOSITIVE MOTION DEADLINE; (2) BY FAILING TO SET AN
       UPDATED BRIEFING SCHEDULE; AND (3) IN RULING ON PLAINTIFF
       WELLS FARGO’S MOTION FOR SUMMARY JUDGMENT PRIOR TO THE
       EXPIRATION OF TIME REQUIRED FOR APPELLANT THOMAS PARKS’
       (SIC) TO FILE A BRIEF IN OPPOSITION UNDER BOTH CIV.R. 56 AND
       LOCAL RULE 9(I) OF THE LORAIN COUNTY COURT OF COMMON
       PLEAS.

       {¶7}   In his brief, Parks argues, among other things, that CitiBank did not have standing

to file the foreclosure action against him because CitiBank was not the holder of the note. The

Ohio Supreme Court recently held, in Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio

St.3d 13, 2012-Ohio-5017, that a plaintiff must have a valid assignment of the mortgage at the

time of the filing of the complaint. “The Ohio Constitution provides in Article IV, Section 4(B):

‘The courts of common pleas and divisions thereof shall have such original jurisdiction over all

justiciable matters and such powers of review of proceedings of administrative officers and

agencies as may be provided by law.’” (Emphasis sic.) Schwartzwald at ¶ 20.

       Whether a party has a sufficient stake in an otherwise justiciable controversy to
       obtain judicial resolution of that controversy is what has traditionally been
       referred to as the question of standing to sue. Where the party does not rely on
                                                 4


       any specific statute authorizing invocation of the judicial process, the question of
       standing depends on whether the party has alleged * * * a personal stake in the
       outcome of the controversy.

(Internal quotations omitted.) Id. at ¶ 21, quoting Cleveland v. Shaker Hts., 30 Ohio St.3d 49, 51

(1987). Standing is a jurisdictional matter and, therefore, must be established at the time the

complaint is filed. Schwartzwald at ¶ 24.

       {¶8}    If, at the commencement of the action, a plaintiff does not have standing to invoke

the court’s jurisdiction, the “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.” Id. at ¶

38. “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 ¶ 40.

       {¶9}    In light of the Ohio Supreme Court’s recent decision, we reverse and remand the

case so that the trial court may apply Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio

St.3d 13, 2012-Ohio-5017. Accordingly, Parks’ assignments of error are not ripe for review, and

we decline to address them.


                                                 III


       {¶10} The judgment of the Lorain County Court of Common Pleas is reversed, and the

cause is remanded for further proceedings consistent with the foregoing opinion.


                                                                                Judgment reversed,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.
                                                 5


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     BETH WHITMORE
                                                     FOR THE COURT



BELFANCE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JOHN J. GILL, Attorney at Law, for Appellant.

BRADLEY TOMAN, Attorney at Law, for Appellee.
