[Cite as Bank of New York Mellon v. Reed, 2014-Ohio-4243.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



THE BANK OF NEW YORK                             :           JUDGES:
MELLON                                           :           Hon. Sheila G. Farmer, P.J.
                                                 :           Hon. Patricia A. Delaney, J.
        Plaintiff-Appellee                       :           Hon. Craig R. Baldwin, J.
                                                 :
-vs-                                             :
                                                 :
GREGORY REED, ET AL.                             :           Case No. 2013 AP 11 0044
                                                 :
        Defendants-Appellants                    :           OPINION



CHARACTER OF PROCEEDING:                                     Appreal from the Court of Common
                                                             Pleas, Case No. 2012 CF 07 0633


JUDGMENT:                                                    Affirmed



DATE OF JUDGMENT:                                            September 25, 2014



APPEARANCES:

For Plaintiff-Appellee                                       For Defendants-Appellants

SARAH E. LEIBEL                                              TYLER W. KAHLER
3962 Red Bank Road                                           P.O. Box 36736
Cincinnati, OH 45227                                         Canton, OH 44735

For Tuscarawas County Treasurer                              For United States of America

ROBERT R. STEPHENSON II                                      LORI WHITE LAISURE
125 East High Avenue                                         801 West Superior Avenue
New Philadelphia, OH 44663                                   Suite 400
                                                             Cleveland, OH 44113
Tuscarawas County, Case No. 2013 AP 11 0044                                              2

Farmer, P.J.

       {¶1}    On July 16, 2012, appellee, The Bank of New York Mellon, fka The Bank

of New York, as Trustee for the Certificateholders of the CWABS, Inc., Asset-Backed

Certificates, Series 2006-21, filed a complaint in foreclosure against appellants, Gregory

and Lesha Reed, for failure to pay on a note secured by a mortgage. Appellants failed

to file an answer.

       {¶2}    A bench trial was set for April 30, 2013. On said date, the parties filed an

agreed judgment entry and decree in foreclosure wherein appellee agreed to not

execute on its judgment for one hundred and twenty days to allow appellants to

conclude loss mitigation efforts.

       {¶3}    On September 16, 2013, after the time period had expired, appellants filed

a motion for relief from judgment pursuant to Civ.R. 60(B), claiming mistake and/or

surprise, fraud and/or misrepresentation, and a meritorious defense. A hearing was

held on September 30, 2013. By judgment entry filed October 24, 2013, the trial court

denied the motion.

       {¶4}    Appellants filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶5}    "THE TRIAL COURT ERRED IN DENYING THE MOTION MADE

PURSUANT TO CIV.R. 60(B)(1) WHERE THE MOTION WAS TIMELY MADE AND

ESTABLISHED MISTAKE AND/OR SURPRISE AND A MERITORIOUS DEFENSE IN

THAT (1) THE ASSIGNMENT PURPORTING TO GIVE APPELLEE-PLAINTIFF AN

INTEREST IN THE MORTGAGE WAS A FORGERY AND (2) THAT THE PLAINTIFF
Tuscarawas County, Case No. 2013 AP 11 0044                                              3


LACKS STANDING AND/OR IS NOT THE REAL PARTY IN INTEREST WHERE THE

TRANSFEROR ASSIGNING THE MORTGAGE AND NOTE TO BONY WAS MERS,

ACTING ON BEHALF OF AMERICA'S WHOLESALE LENDER, A NEW YORK

CORPORATION THAT DID NOT EXIST AT THE TIME OF THE PURPORTED

ASSIGNMENT."

                                             II

       {¶6}   "THE TRIAL COURT ERRED IN DENYING THE MOTION MADE

PURSUANT TO CIV.R. 60(B)(5) WHERE THE ENFORCEMENT OF A FORGED

DOCUMENT AND THE RESULTING LACK OF STANDING, BOTH A MERITORIOUS

DEFENSE AND A REASON JUSTIFYING RELIEF, MAKES IT UNJUST FOR THE

JUDGMENT TO BE ENFORCED."

                                             III

       {¶7}   "ALTERNATIVELY, THE TRIAL COURT ERRED WHERE IT FAILED TO

CONSTRUE THE MOTION AS A MOTION TO VACATE A VOID JUDGMENT WHERE

THE MOTION ATTACKED THE JURISDICTION OF THE TRIAL COURT."

                                          I, II, III

       {¶8}   Appellants' assignments of error claim the trial court erred in denying their

Civ.R. 60(B) motion for relief from judgment.          Appellants claim they have proven

mistake and/or surprise, fraud and/or misrepresentation, and have established a

meritorious defense. Appellants also claim the trial court should have treated their

motion as a motion to vacate a void judgment. Consistent with the law developed in this

district, we disagree.
Tuscarawas County, Case No. 2013 AP 11 0044                                                 4


       {¶9}   A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's

sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75 (1987). In order to find an abuse

of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217 (1983). Appellants based their Civ.R. 60(B) motion on

"mistake, inadvertence, surprise or excusable neglect," "fraud***misrepresentation," and

"any other reason justifying relief from the judgment." Civ.R. 60(B)(1), (3), and (5). In

GTE Automatic Electric Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976),

paragraph two of the syllabus, the Supreme Court of Ohio held the following:



              To prevail on a motion brought under Civ.R. 60(B), the movant

       must demonstrate that: (1) the party has a meritorious defense or claim to

       present if relief is granted; (2) the party is entitled to relief under one of the

       grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made

       within a reasonable time, and, where the grounds of relief are Civ.R.

       60(B)(1), (2) or (3), not more than one year after the judgment, order or

       proceeding was entered or taken.



       {¶10} Appellants argue they were mistaken and surprised by the effect of the

April 30, 2013 agreed judgment entry decree of foreclosure. In their affidavit attached to

their Civ.R. 60(B) motion filed September 16, 2013, appellants averred at paragraphs 4,

5, and 6 the following:
Tuscarawas County, Case No. 2013 AP 11 0044                                           5


             4. On April 30, 2013, we were presented a document by the

      lawyers for The Bank of New York Mellon that we believed was an

      agreement to give us 120 days to attempt to complete the foreclosure

      prevention process with ESOP.

             5. We believed, based upon the representation made by the

      lawyers for The Bank of New York Mellon, that the agreement was simply

      for more time before moving the case forward.

             6. If we had known that the agreement was giving The Bank of New

      York Mellon a final judgment that would allow them to sell our house, we

      never would have signed it.



      {¶11} The agreement was executed on the day of the scheduled bench trial. As

the transcript illustrates, appellee agreed not to execute on the judgment for one

hundred and twenty days to permit appellants to "wrap-up some loss mitigation efforts

that they've been working on." T. at 3. The trial court noted "when we hear the word

execute sometimes we think of something really dramatic, but, I'm sure counsel's

already explained to you that that simply means they wouldn't proceed with collecting on

the judgment, which is essentially selling the property." Id. Appellant Gregory Reed

responded "Yes your honor." Id. The trial court then specifically explained the final

nature of the agreement (T. at 3-4):



             THE COURT: Okay. And I guess I want to make sure that you

      understand that, that would be a final order of this Court and the only other
Tuscarawas County, Case No. 2013 AP 11 0044                                              6


       thing that may come out of this Court is, after the one hundred and twenty

       days, if the creditor is not satisfied with whatever you've resolved between

       you or with the property in the meantime, if they choose to then execute

       on it, there may be some other order of sale coming out of the Court at

       that time or some other orders relative to a sale that could come from the

       Court at that time. But it would not mean we would come back for another

       trial. And do you both understand that?



       {¶12} Both appellants acknowledged their understanding and signed the

agreement. T. at 4. The agreement specifically stated the allegations in the complaint

were true, appellee was entitled to a decree of foreclosure, and the Sheriff shall sell the

property if the required payments were not made.

       {¶13} In its October 24, 2013 denial of appellants' claims under Civ.R. 60(B)(1),

"mistake, inadvertence, surprise or excusable neglect," the trial court found "there was

no misrepresentation of the Agreed Judgment Entry and Decree of Foreclosure."

Based upon the transcript and appellants' affirmations, we agree with the trial court's

conclusion.

       {¶14} The trial court also found because appellants were in default for failing to

file an answer, "the claim of a meritorious defense is not well taken."

       {¶15} In their Civ.R. 60(B) motion, appellants claimed their meritorious defense

was that the trial court lacked subject matter jurisdiction as appellee had no standing to

initiate the action because the document purporting to assign an interest of the subject

property from America's Wholesale Lender to appellee appears to be a forgery.
Tuscarawas County, Case No. 2013 AP 11 0044                                            7


Although the note was endorsed in blank, appellants claimed America's Wholesale

Lender did not exist under the laws of New York at the time of the assignment. In

support of their arguments, appellants cite the case of Federal Home Loan Mortgage

Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017. We note by consenting to

the agreement judgment entry decree in foreclosure, appellants assented to the

jurisdiction of the trial court.   Now, in the thirteenth hour, they seek to attack the

judgment as void.

       {¶16} In Chase Home, LLC v. Lindenmayer, 5th Dist. Licking No. 13-CA-66,

2014-Ohio-1041, ¶ 8, this court held the following:



              This Court has held, post Schwartzwald, the issue of standing does

       not deprive the trial court of subject matter jurisdiction to decide a

       foreclosure action.     This Court has previously held the failure of a

       defendant to challenge the issue of standing via direct appeal results in a

       subsequent motion to vacate based thereon to be barred by res judicata.

       See, Wells Fargo Bank, NA v. Elliott, 5th Dist. App. No. 13CAE030012,

       2013-Ohio-3690; and Wells Fargo Bank, N.A. v. Arlington, 5th Dist. App.

       No. 13CAE030016, 2013-Ohio-4659.



       {¶17} Thus, lack of standing does not deprive a trial court of subject matter

jurisdiction as the issue is an affirmative defense. Further, a lack of standing does not

constitute fraud under Civ.R. 60(B)(3) or (5). Wells Fargo Bank, N.A. v. Brandle, 2nd
Tuscarawas County, Case No. 2013 AP 11 0044                                              8

Dist. Champaign No. 2012CA0002, 2012-Ohio-3492; U.S. Bank, N.A. v. Kapitula, 12th

Dist. Clermont No. CA2012-08-058, 2013-Ohio-2638.

       {¶18} It is conceded that the exact question of the validity of a post-judgment

motion to vacate on lack of standing is currently before the Supreme Court of Ohio on a

certify conflict in Bank of America, N.A. vs. Kuchta, Sup.Ct. No. 2013-304 ("[w]hen a

defendant fails to appeal from a trial court's judgment in a foreclosure action, can a lack

of standing be raised as part of a motion for relief from judgment?").

       {¶19} Appellants also argue the dicta in Justice French's opinion in

ProgressOhio.org, Inc. v. JobsOhio, ___ Ohio St.3d ___, 2014-Ohio-2382, ¶ 11,

warrants a reversal on the issue of standing:



              Nor could we. The Ohio Constitution expressly requires standing

       for cases filed in common pleas courts. Article IV, Section 4(B) provides

       that the courts of common pleas "shall have such original jurisdiction over

       all justiciable matters." (Emphasis added.) A matter is justiciable only if

       the complaining party has standing to sue. Fed. Home Loan Mtge. Corp.

       v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶

       41 ("It is fundamental that a party commencing litigation must have

       standing to sue in order to present a justiciable controversy"). Indeed, for

       a cause to be justiciable, it must present issues that have a "direct and

       immediate" impact on the plaintiffs. Burger Brewing Co. v. Liquor Control

       Comm., Dept. of Liquor Control, 34 Ohio St.2d 93, 97-98, 296 N.E.2d 261

       (1973). Thus, if a common pleas court proceeds in an action in which the
Tuscarawas County, Case No. 2013 AP 11 0044                                               9


       plaintiff lacks standing, the court violates Article IV of the Ohio

       Constitution.    Article IV requires justiciability, and justiciability requires

       standing.       These constitutional requirements cannot be bent to

       accommodate Sheward [State ex rel. Ohio Academy of Trial Lawyers v.

       86 Ohio St.3d 451 (1991)].



       {¶20} However, in Groveport Madison Local Schoold Bd. of Edn. v. Franklin

County Bd. of Revision, 137 Ohio St.3d 266, 2013-Ohio-4627, ¶ 25, Justice French

wrote "[l]ack of standing, on the other hand, challenges a party's capacity to bring an

action, not the subject-matter jurisdiction of the tribunal." In State ex rel. Flanagan v.

Lucas, 139 Ohio St.3d 559, 2014-Ohio-2588, the Supreme Court of Ohio in a per

curiam opinion at ¶ 17 (Justice French concurring in judgment only), quoted the

following from State ex rel. Dallman v. Franklin County Court of Common Pleas, 35

Ohio St.2d 176 (1973), syllabus: " '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.' "

       {¶21} It is undisputed that the subject note was endorsed in blank; therefore,

appellee is the holder of the note. Appellants question whether appellee possessed the

original note as opposed to a photocopy when the complaint was filed.               However,

appellants signed an agreed judgment entry decree in foreclosure thereby forestalling

any litigation or dispute on the validity of the note.
Tuscarawas County, Case No. 2013 AP 11 0044                                             10

      {¶22} In Bank of New York Mellon Trust Co., N.A. v. Loudermilk, 5th Dist.

Fairfield No. 2012-CA-30, 2013-Ohio-2296, we adopted the legal philosophy that the

note follows the mortgage:



             We find this case is analogous to Central Mtge Co. v. Webster, 5th

      Dist. No.2011 CA00242, 2012-Ohio-4478, 978 N.E.2d 962, in which

      Central Mortgage was the current holder of the note, but could not

      establish it was the holder of the mortgage through the assignment of

      mortgage. However, because the mortgage follows the note it secures,

      we found Central Mortgage to be a real party in interest. Id. As noted in

      the Central Mtge. Co. case, Kuck v. Sommers, 59 Ohio Law Abs. 400, 100

      N.E.2d 68, 75 (3rd Dist.1950) holds: "[w]here a note secured by a

      mortgage is transferred so as to vest the legal title to the note in the

      transferee, such transfer operates as an equitable assignment of the

      mortgage, even though the mortgage is not assigned or delivered." This

      Court has consistently relied on Kuck v. Sommers to find the holder of the

      note is the real party in interest entitled to pursue its rights under the note

      and mortgage. See Central Mtge. Co., LaSalle Bank Nat'l. Assn. v. Street,

      5th Dist. No. 08CA60, 2009-Ohio-1855, Bank of New York v. Dobbs, 5th

      Dist. No. 2009-CA-000002, 2009-Ohio-4742, Duetsche Bank Nat'l. Trust

      Co. v. Hansen, 5th Dist. No. 2010 CA 00001, 2011-Ohio-1223, 2010-1

      CRE Ventures, LLC v. Costanzo, 5th Dist. No. 11 CAE 01003, 2011-Ohio-

      3530. Other appellate courts and the Sixth District Court of Appeals have
Tuscarawas County, Case No. 2013 AP 11 0044                                         11

      utilized Kuck v. Sommers to find the holder of the note, in the absence of

      evidence of the assignment of mortgage, is the real party in interest. U.S.

      Bank Nat'l. Assn. v. Marcino, 181 Ohio App.3d 328, 2009-Ohio-1178, 908

      N.E.2d 1032 (7th Dist.) (stating Ohio courts have "held that whenever a

      promissory note is secured by a mortgage, the note constitutes the

      evidence of the debt and the mortgage is a mere incident to the obligation"

      and negotiation of a note operates as an equitable assignment of the

      mortgage, even though the mortgage is not assigned or delivered, and

      finding the Uniform Commercial Code, as adopted in Ohio, supports the

      conclusion that the owner of a promissory note should be recognized as

      the owner of the related mortgage); U.S. Bank v. Coffey, 6th Dist. No. E-

      11-026, 2012-Ohio-721 (alleged assignee of the mortgage which could not

      provide evidence of the assignment of mortgage but could demonstrate

      possession of the promissory note was the real party in interest).



      {¶23} Based upon this district's law, the post-judgment challenge under Civ.R.

60(B) is barred by res judicata. Upon review, we find the trial court did not err in

denying the motion.

      {¶24} Assignments of Error I, II and III are denied.
Tuscarawas County, Case No. 2013 AP 11 0044                                  12


      {¶25} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio

is hereby affirmed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.




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