      [Cite as HSBC Bank USA v. Sherman, 2013-Ohio-4220.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



HSBC BANK USA, NATIONAL                        :     APPEAL NO. C-120302
ASSOCIATES as TRUSTEE for WELLS                      TRIAL NO.  A-1101137
FARGO ASSET SECURITIES                         :
CORPORATION, MORTGAGE PASS-
THROUGH CERTIFICATES SERIES                    :            O P I N I O N.
2006-15,
                                               :
     Plaintiff-Appellee,
                                               :
      vs.
                                               :
MATTHEW SHERMAN, a.k.a. MATT
SHERMAN,
                                               :
     Defendant-Appellant,
                                               :
      and
                                               :
UNKNOWN SPOUSE (IF ANY) OF
MATTHEW SHERMAN, a.k.a. MATT                   :
SHERMAN.

    Defendant.                                 :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 27, 2013


Thompson Hine LLP, Scott A. King and Terry W. Posey, for Plaintiff-Appellee,

Dever Legal Services, Scott A. Hoberg and Jonathan Dever, for Defendant-
Appellant.


Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS


CUNNINGHAM, Judge.
       {¶1}    Defendant-appellant Matthew Sherman, a.k.a. Matt Sherman, appeals the

entry of summary judgment for plaintiff-appellee HSBC Bank USA, National Associates

as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass-Through

Certificates Series 2006-15 (“HSBC”), in its foreclosure action.

       {¶2}    In 2006, Sherman purchased a home on Heekin Avenue in

Cincinnati. To finance the purchase, Sherman executed a note in the amount of

$405,000 in favor of American Broker’s Conduit (“ABC”). The note was secured by a

mortgage in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), as

nominee for ABC and its successors, executed on the same day. On January 26,

2011, MERS assigned the mortgage to HSBC.

       {¶3}    In 2010, Sherman defaulted on his repayment obligations as the

borrower under the note and mortgage.           As provided in the note and mortgage,

HSBC accelerated repayment of the note. The principal due was $401,433 plus

interest from April 1, 2010.

       {¶4}    On February 7, 2011, HSBC filed this action against Sherman seeking

judgment on the note and foreclosure on the mortgage. HSBC attached the original

mortgage and note to its complaint. The documents reflect that on January 26, 2011,

the mortgage had been properly assigned to HSBC. The note, however, contained an

endorsement only to Wells Fargo Bank, N.A., and not to HSBC.

       {¶5}    In January 2012, HSBC moved for summary judgment supported by

the affidavit of its vice president of loan documentation. She stated that HSBC was

the holder of the note as well as the assignee of the mortgage. HSBC also filed a copy

of the note, now including an endorsement from Wells Fargo in blank, making the

note payable to the bearer, HSBC. In response, Sherman did not dispute the amount

due. He asserted that HSBC was not entitled to summary judgment because it lacked

standing to prosecute the action.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶6}      On February 24, 2012, the trial court overruled Sherman’s objections

to a magistrate’s decision in favor of HSBC, and entered an order adopting the

decision and issuing a final decree in foreclosure.

       {¶7}      Sherman timely filed an appeal from that entry with the clerk of the

Hamilton County Common Pleas Court. We note that the text of the notice of appeal

erroneously indicates that the appeal was being taken to the Twelfth District Court of

Appeals. See App.R. 3(D) (“The notice of appeal * * * shall name the court to which the

appeal is taken.”). Because HSBC was apprised of the taking of an appeal and was not

prejudiced by this defect in the notice, we exercise our discretion and overlook this non-

jurisdictional defect in Sherman’s notice of appeal. See Roberts v. Skaggs, 176 Ohio

App.3d 251, 2008-Ohio-1954, 891 N.E.2d 827, ¶ 8 (1st Dist.).

       {¶8}      Raising a single assignment of error, Sherman asserts that the trial court

erred in entering summary judgment “when [HSBC] did not have standing to bring the

cause of action as it was not the real party in interest.” He asserts that the facts established

by HSBC for purposes of summary judgment do not entitle it to judgment as a matter of

law. See Civ.R. 56(A); see also Capital Fin. Credit, LLC v. Mays, 191 Ohio App.3d 56,

2010-Ohio-4423, 944 N.E.2d 1184 (1st Dist.). We review cases decided on summary

judgment de novo. See Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833

N.E.2d 712, ¶ 8.

       {¶9}      Sherman argues that HSBC was not the real party in interest because it

lacked the ability to enforce the note and mortgage when it filed the complaint, because it

had failed to comply with Loc.R. 45 of the Hamilton County Court of Common Pleas, and

because it had failed to follow the terms of a separate Pooling and Servicing Agreement

(“PSA”).

       {¶10}     In a 2012 decision, the Ohio Supreme Court clarified the rules to establish

standing in a foreclosure action. See Fed. Home Mtge. Corp. v. Schwartzwald, 134 Ohio

St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 21. “ ‘Standing to sue is part of the common



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                      OHIO FIRST DISTRICT COURT OF APPEALS



understanding of what it takes to make a justiciable case.’ ” Id. at ¶ 21, quoting Steel Co. v.

Citizens for a Better Environment, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210

(1998). Because standing is required to invoke the jurisdiction of the common pleas court,

standing is determined as of the commencement of suit by the filing of a complaint. See

Schwartzwald at ¶ 24; see also Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285,

2008-Ohio-4603, 897 N.E.2d 722, ¶ 16 (1st Dist.).

       {¶11}    The Schwartzwald court noted that a party lacks standing to invoke the

jurisdiction of the court unless it has, in an individual or representative capacity, some real

interest in the subject matter of the action. See Schwartzwald at ¶ 22. The fundamental

requirement of standing is that the party bringing the action is actually the party who has

suffered the injury. See Schwartzwald at ¶ 23 and 28.

       {¶12}    Here, construing the evidence most strongly in favor of Sherman, we hold

that no genuine issues of material fact remain to be litigated and that HSBC had

demonstrated standing as of the commencement of its suit.

       {¶13}    In its complaint, HSBC alleged that it was “entitled to enforce the Note,”

pursuant to R.C. 1303.31, and that the mortgage was given “to secure the Note.” HSBC

attached to its complaint the mortgage, assigned to HSBC.             The properly assigned

mortgage specifically referenced the note executed in conjunction with the mortgage. The

mortgage recited the amount due on the note, and that “the Borrower,” Sherman, “has

promised to pay this debt in regular Periodic Payments and to pay the debt in full not later

than July 1, 2036.” The mortgage also provided that “this Security Instrument secures to

Lender,” HSBC, by assignment from ABC, “(i) the repayment of the Loan, and all

renewals, extensions, and modifications of the Note, and (ii) the performance of the

Borrower’s covenants and agreements under this Security Instrument and the Note.”

       {¶14}    The note attached to the complaint similarly referenced the mortgage,

“dated the same day as this Note,” noting that the mortgage protects the lender from




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                      OHIO FIRST DISTRICT COURT OF APPEALS



“losses which might result if I [Sherman] do not keep the promises which I make in this

Note.”

         {¶15}   The properly assigned mortgage was sufficient to demonstrate HSBC’s

standing under Schwartzwald. See Fifth Third Mtge. Co. v. Bell, 12th Dist. Madison No.

CA2013-02-003, 2013-Ohio-3678, ¶ 16. It established HSBC’s interest in the suit and was

filed with the complaint. See Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979

N.E.2d 1214, at ¶ 24. It had sufficient specificity to permit Sherman to prepare a defense

to the action. See Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, at

¶ 32. It referred to the note, and the note to the mortgage, thus demonstrating an intent to

keep the note and mortgage together rather than transferring the mortgage alone, and

establishing HSBC’s interest in the note and its entitlement to enforce that instrument.

See Wells Fargo Bank, N.A. v. Elliott, 5th Dist. Delaware No. 13 CAE 03 0012, 2013-Ohio-

3690, ¶ 23. And it assured that HSBC had a personal stake in the outcome of the

litigation, because it was the party to whom the damages for a breach by Sherman would

flow. See Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, at ¶ 23

and 28.

         {¶16}   We note that some Ohio appellate courts would have concluded from the

filing of the properly assigned mortgage alone that HSBC had standing.                 E.g.,

Citimortgage, Inc. v. Patterson, 8th Dist. Cuyahoga No. 98360, 2012-Ohio-5894, 984

N.E.2d 392, ¶ 21. In Schwartzwald, the Supreme Court resolved a conflict among the

appellate districts and held that standing is to be determined as of the commencement of

suit and cannot be cured by substituting a real party in interest for an original party

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

16 and 24. In explaining its decision, the court noted that the mortgagee bank lacked

standing because it had “failed to establish an interest in the note or mortgage at the time

it filed suit.” (Emphasis added.) Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979

N.E.2d 1214, at ¶ 28. Relying on that statement, some courts have concluded that a party



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                       OHIO FIRST DISTRICT COURT OF APPEALS



may establish its standing by showing either that it is the assignee of the mortgage or that

it is the holder of the note. See Patterson at ¶ 21.

        {¶17}    We note that in Schwartzwald, the mortgagee was neither an assignee of

the mortgage nor a holder of the note at the time it filed its complaint. It achieved both

positions only after the complaint had been filed. See Schwartzwald, 134 Ohio St.3d 13,

2012-Ohio-5017, 979 N.E.2d 1214, at ¶ 7 and 10; see also Byrd, 178 Ohio App.3d 285,

2008-Ohio-4603, 897 N.E.2d 722, at ¶ 2 (also reviewing a scenario where the mortgagee

had brought suit but had filed neither an assigned note nor mortgage with its complaint).

The “or” statement must be read in the context of the entire opinion. The question of

whether standing can be achieved by the filing of either document with the complaint was

not presented by the facts of the case and was not necessary to the resolution of the issue

presented.

        {¶18}    For the determination of this case, we prefer to rely upon the rule of

Schwartzwald that the fundamental requirement of standing is that the party bringing the

action is actually the party who has suffered the injury, and that this situation must be

established at the time of the commencement of the suit. See Schwartzwald, 134 Ohio

St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, at ¶ 24. The result is the same in this case.

        {¶19}    Sherman’s remaining arguments also fail. Sherman argues that the local

rules of court required HSBC to attach both an assigned note and mortgage to its

complaint. Loc.R. 45(A) of the Hamilton County Court of Common Pleas, effective

January 1, 2012, actually provides:

                 In every action demanding the judicial sale of real estate, the

          party or parties seeking such judicial sale shall attach legible copies of

          the following documents to the initial pleading:



                 1. the Note and recorded mortgage drafted pursuant to Chapter

          5301.; or


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                      OHIO FIRST DISTRICT COURT OF APPEALS



                                               ***

                4. any other written instrument upon which the party relies as

         the basis for a judicial sale.

                If the plaintiff is not the payee of the Note or the original

         mortgagee, then the assignment of mortgage bearing the plaintiff’s

         name shall also be attached to the complaint. If the documents are

         not attached, the reason for the omission must be stated in the

         pleading.

       {¶20}    HSBC attached the required documents to its complaint. While the copy

of the note attached did not indicate that HSBC was the payee of the note, in compliance

with the rule, HSBC attached “the assignment of mortgage bearing the plaintiff’s name”

as exhibit 3 to the complaint.

       {¶21}    Sherman also argues that that the note was not properly endorsed

according to the PSA, and therefore the note is not properly a part of the pool. But

Sherman is not a beneficiary under the PSA and has no right to claim that HSBC failed to

comply with the terms of the PSA. See Bank of New York Mellon Trust Co., N.A. v.

Unger, 8th Dist. Cuyahoga No. 97315, 2012-Ohio-1950, ¶ 35; see also Deutsche Bank

Natl. Trust Co. v. Hansen, 5th Dist. Fairfield No. 2010 CA 00001, 2011-Ohio-1223, ¶ 50.

       {¶22}    Sherman’s final argument that obligations inherent in the note caused

Article 9 of the UCC, and not Article 3, to govern is feckless. Sherman did not raise this

issue before the magistrate or the trial court. The matter is waived save for plain error, a

doctrine that is rarely applied in civil appeals. See Civ.R. 53(D)(3)(b)(iv); see also In re

Etter, 134 Ohio App.3d 484, 492, 731 N.E.2d 694 (1st Dist.1998). This is not one of those

“extremely rare” cases in which failure to reach the claimed error “seriously affects the

basic fairness, integrity, or public reputation of the judicial process.”      Goldfuss v.

Davidson, 70 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



       {¶23}   The assignment of error is overruled.        Therefore, the trial court’s

judgment is affirmed.



                                                                     Judgment affirmed.

HENDON, P.J., and HILDEBRANDT, J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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