[Cite as Wells Fargo Bank, Natl. Assn. v. Elliott, 2013-Ohio-3690.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                               JUDGES:
WELLS FARGO BANK, NATIONAL                             :       Hon. W. Scott Gwin, P.J.
ASSOCIATION                                            :       Hon. Patricia A. Delaney, J.
                                                       :       Hon. Craig R. Baldwin, J.
                          Plaintiff-Appellee           :
                                                       :
-vs-                                                   :       Case No. 13 CAE 03 0012
                                                       :
CHRIS W. ELLIOTT, ET AL                                :
                                                       :       OPINION
                   Defendants-Appellant




CHARACTER OF PROCEEDING:                                   Civil appeal from the Delaware County
                                                           Court of Common Pleas, Case No. 11CV E
                                                           091206

JUDGMENT:                                                  Affirmed



DATE OF JUDGMENT ENTRY:                                    August 27, 2013


APPEARANCES:

For Plaintiff-Appellee                                     For Defendants-Appellant

STEPHEN WILLIGER                                           GREGORY WETZEL
127 Public Square                                          DANIEL YARMESCH
3900 Key Tower                                             4200 Regent Street, Suite 200
Cleveland, OH 44114                                        Columbus, OH 43219


MICHAEL DILLARD, JR.
41 South High Street, Suite 1700
Columbus, OH 43215
[Cite as Wells Fargo Bank, Natl. Assn. v. Elliott, 2013-Ohio-3690.]


Gwin, P.J.

        {¶1}     Appellant appeals the February 4, 2013 judgment entry of the Delaware

County Common Pleas Court denying his motion to dismiss complaint.

                                           Facts & Procedural History

        {¶2}     On October 27, 2006, appellant Chris W. Elliott executed a promissory

note in favor of Ethical Mortgage Lending, LLC (“Ethical Mortgage”) for $162,000. Also

on that date, appellant executed a mortgage that secured the note and encumbered the

property located at 6207 Charmar Drive, Westerville, Ohio. The mortgage indicated the

lender was Ethical Mortgage Lending, LLC, and listed Mortgage Electronic Registration

Systems (“MERS”) as nominee for lender and lender’s successors and assigns. The

mortgage provided that “MERS is the mortgagee under this Security Instrument.” In a

document entitled “Assignment of Mortgage” that was recorded January 12, 2011,

MERS, as nominee for Ethical Mortgage, assigned the October 27, 2006 mortgage

securing 6207 Charmar Drive, Westerville, Ohio, to appellee Wells Fargo Bank,

National Association, as Trustee for Certificateholders of Bear Stearns Asset Backed

Securities I LLC, Asset Backed Certificates, Series 2007-AC2.

        {¶3}     Appellee filed a complaint for foreclosure on September 30, 2011.

Appellee attached to the complaint a copy of the October 27, 2006 note with Ethical

Mortgage listed as the lender. The note did not contain any endorsement to indicate the

note had been transferred or assigned. Also attached to the complaint was a copy of

the October 27, 2006 mortgage. Finally, appellee attached to the complaint a copy of

the assignment of mortgage recorded on January 12, 2011 from MERS, as nominee for

Ethical Mortgage, to appellee.
Delaware County, Case No. 13 CAA 0012                                                     3


       {¶4}   Appellant was served with the complaint on October 10, 2011, by process

server, but did not file an answer to the complaint. On April 13, 2012, appellee filed a

motion for default judgment against appellant. Appellee filed an affidavit in support of its

motion for default judgment which incorporated a copy of the October 27, 2006 note.

However, this copy of the note contained an endorsement by Ethical Mortgage made

payable to Huntington National Bank and a second endorsement made by Huntington

National Bank payable to blank. The trial court granted appellee’s motion for default in

a judgment entry and decree of foreclosure on April 19, 2012 and indicated the

judgment entry and decree of foreclosure was a final appealable order. Appellant did

not appeal the April 19, 2012 judgment entry and decree of foreclosure. The trial court

scheduled a sheriff’s sale of the home on July 11, 2012. Appellant filed a Chapter 7

bankruptcy petition on July 10, 2012. Appellee was granted relief from the automatic

bankruptcy stay on August 21, 2012 and on October 18, 2012, appellee filed with the

trial court a notice that the automatic stay was no longer in effect. On November 7,

2012, a sheriff’s sale of the home was scheduled for December 12, 2012.

       {¶5}   On November 9, 2012, appellant filed a motion to dismiss complaint

pursuant to Civil Rule 12(B)(1). The trial court denied appellant’s motion to dismiss on

February 4, 2013. The trial court first determined that Civil Rule 12(B)(1) is not the

proper procedural tool for appellant’s request because it is only before judgment has

been rendered or after the judgment has been vacated that the trial court may consider

a motion to dismiss complaint. The trial court further found that the assignment of the

mortgage in this case which was completed prior to the filing of appellee’s complaint

was sufficient to transfer both the mortgage and the note. The trial court concluded
Delaware County, Case No. 13 CAA 0012                                                      4


appellee had standing at the time the complaint was filed. Appellant filed an appeal of

the trial court’s February 4, 2013 decision denying his motion to dismiss and raises the

following assignments of error on appeal:

      {¶6}   “I. THE TRIAL COURT ERRED WHEN IT HELD CHRIS W. ELLIOTT

(“MR. ELLIOTT”) COULD NOT CHALLENGE ITS SUBJECT MATTER JURISDICTION

POST-JUDGMENT WITHOUT FIRST FILING A MOTION FOR RELIEF FROM

JUDGMENT.

      {¶7}   “II. THE TRIAL COURT ERRED WHEN IT HELD WELLS FARGO BANK,

NATIONAL ASSOCIATION, AS TRUSTEE FOR CERTIFICATEHOLDERS OF BEAR

STEARNS ASSET BACKED SECURITIES I LLC, ASSET BACKED CERTIFICATES,

SERIES 2007-AC2 (“WELLS FARGO”) ESTABLISHED ITS STANDING TO INVOKE

THE SUBJECT MATTER JURISDICTION OF THE COURT. “

                                                I.

      {¶8}   Appellant first argues the trial court erred in finding a Civil Rule 12(B)(1) is

not the proper procedural method to address appellant’s arguments because the issue

of subject matter jurisdiction can be raised at anytime during the proceedings and

because appellee lacked subject matter jurisdiction at the time the complaint was filed

and thus the default judgment is void ab initio. We disagree.

      {¶9}   Jurisdiction is the trial court’s “statutory or constitutional power to

adjudicate the case.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89,

118 S.Ct. 1003 (1998); Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 841

(1972). The term jurisdiction “encompasses jurisdiction over the subject matter and

over the person.” State v. Parker, 95 Ohio St.3d 524, 769 N.E.2d 846 (2002). Subject
Delaware County, Case No. 13 CAA 0012                                                     5

matter jurisdiction is defined as a court’s power to hear and decide cases. Pratts v.

Hurley, 102 Ohio St.3d 81, 806 N.E.2d 992 (2004). Because subject matter jurisdiction

goes to the power of the court to adjudicate the merits of a case, it can never be waived

and may be challenged at any time. U.S. v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781

(2002); State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002

(1998).

       {¶10} Separate from the requirement of subject matter jurisdiction in a case is

the requirement of standing. Standing is defined as “[a] party’s right to make a legal

claim or seek judicial enforcement of a duty or right.” Ohio Pyro, Inc. v. Ohio Dept. of

Commerce, 115 Ohio St.3d 375, 875 N.E.2d 550 (2007), quoting Black’s Law Dictionary

(8th Ed. 2004). Standing depends on “whether the party has alleged such a personal

stake in the outcome of the controversy* * * as to ensure that the dispute sought to be

adjudicated will be presented in an adversary context and in a form historically viewed

as capable of judicial resolution.” Id., quoting State ex rel. Dallman v. Franklin Cty.

Court of Common Pleas, 35 Ohio St.2d 176, 178-179, 298 N.E.2d 515 (1973). In order

to establish standing, a plaintiff must show they suffered “(1) an injury that is (2) fairly

traceable to the defendant’s allegedly unlawful conduct, and (3) likely to be redressed

by the requested relief.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 119

L.Ed.3d 351 (1992).     “These three factors – injury, causation, and redressability –

constitute the irreducible constitutional minimum of standing.” Id.

       {¶11} There is a clear distinction between the requirements of subject matter

jurisdiction and standing.   Standing focuses on injury, causation, and redressability

between a plaintiff and defendant in a case, while subject matter jurisdiction focuses on
Delaware County, Case No. 13 CAA 0012                                                     6


the court’s power and ability to hear and decide a case. A lack of standing argument

challenges the capacity of a party to bring an action, not the court’s statutory or

constitutional power to adjudicate the case and thus is distinguishable from a lack of

subject matter jurisdiction argument. PNC Bank, N.A. v. Botts, 10th Dist. No. 12AP-

256, 2012-Ohio-5383 (stating standing and capacity to sue do not challenge the subject

matter jurisdiction of a court); See also Country Club Townhouses-North Condominimim

Unit Assn v. Slates, 9th Dist. No. 17299, 1996 WL 28003 (stating lack of standing

challenges the capacity of a party to bring an action, not the subject matter jurisdiction

of the court); Wells Fargo Bank, N.A. v. Brandle, 2d Dist. No. 2012-CA-0002, 2012-

Ohio-3492 (finding lack of standing does not deprive a court of subject matter

jurisdiction).

       {¶12} Civil Rule 12(B) provides that, “every defense, in law or fact, to a claim for

relief in any pleading * * * shall be asserted in the responsive pleading thereto if one is

required, except that the following defense may at the option of the pleader be made by

motion: (1) lack of jurisdiction of the subject matter * * *. Thus, Civil Rule 12(B)(1)

provides for dismissal of a complaint where the trial court lacks jurisdiction over the

subject matter of the litigation. There is no provision in Civil Rule 12(B)(1) for dismissal

for lack of standing or capacity to sue. Thus, appellant cannot rely on lack of standing

as the basis for his Civil Rule 12(B)(1) motion. See Deutsche Bank Nat’l Trust Co. v.

Whiteman, 10th Dist. No. 12AP-536, 2013-Ohio-1636. Appellant could have challenged

appellee’s standing through a direct appeal of the default judgment and decree of

foreclosure, a final appealable order, that the trial court issued on April 19, 2012.
Delaware County, Case No. 13 CAA 0012                                                   7

      {¶13} Appellant argues the holding by the Ohio Supreme Court in Federal Home

Loan Mortgage Corporation v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017,

compels the trial court to grant his Civil Rule 12(B)(1) motion to dismiss. However, in

Schwartzwald, the court determined that a plaintiff receiving an assignment of a note

and mortgage from the real party in interest subsequent to the filing of the action, but

before the entry of judgment, does not cure a lack of standing to file the foreclosure

action. Id. See also Deutsche Bank Nat’l Trust Co. v. Whiteman, 10th Dist. No. 12AP-

536, 2013-Ohio-1636. As discussed above, lack of standing does not deprive a court of

subject matter jurisdiction and thus lack of standing cannot be challenged in a Civil Rule

12(B)(1) motion to dismiss.

      {¶14} Further, in Schwartzwald, the Supreme Court of Ohio determined the

issue of standing may be raised “at any time during the pendency of the proceedings.”

Subsequent to the issuance of the decision in Schwartzwald, the Ohio Supreme Court

issued the decision in Countrywide Home Loans Servicing v. Nichpor, finding that after

a judgment entry and decree of foreclosure were issued subsequent to a motion for

default judgment, the matter is no longer pending. 990 N.E.2d 565, 2013-Ohio-2083. In

this case, after appellee filed a motion for default judgment, the trial court issued a

judgment entry and decree of foreclosure on April 19, 2012. Thus, the matter was not

pending when appellant filed his motion to dismiss.

      {¶15} Appellant’s first assignment of error is overruled.

                                               II.

      {¶16} Appellant next argues the trial court erred in finding that even if it

considered his Civil Rule 12(B)(1) motion to dismiss, the motion would fail on the merits.
Delaware County, Case No. 13 CAA 0012                                                 8


Appellant contends the documents attached to appellee’s complaint demonstrate

appellee lacked standing at the time the complaint was filed. Appellant further argues

there was no intent for the mortgage and note to move together and that MERS could

not assign the mortgage. We disagree.

      {¶17} When reviewing the trial court’s denial of a motion to dismiss for lack of

subject matter jurisdiction under Civil Rule 12(B)(1), we review the decision de novo.

Brown v. Levin, 10th Dist. No. 11AP-349, 2012-Ohio-5768.          We must determine

whether any cause of action cognizable by the forum has been raised in the complaint.

Prosen v. Dimora, 79 Ohio App.3d 120, 606 N.E.2d 1050 (8th Dist. 1992); State ex rel.

Bush v. Spurlock, 42 Ohio St.3d 77, 537 N.E.2d 641 (1989). Under a de novo analysis,

we must accept all factual allegations of the complaint as true and all reasonable

inferences must be drawn in favor of the nonmoving party. Byrd v. Faber, 57 Ohio St.3d

56, 565 N.E.2d 584 (1991).

      {¶18} The current holder of the note and mortgage is the real party in interest in

foreclosure actions. U.S. Bank Natl. Assoc. v. Marcino, 181 Ohio App.3d 328, 908

N.E.2d 1032, 2009–Ohio–1178 (7th Dist.), ¶ 32 citing Chase Manhattan Mtge. Corp. v.

Smith, 1st Dist. No. C061069, 2007–Ohio–5874, ¶ 18. R.C. 1303.31 provides:

      (A) “Person entitled to enforce” an instrument means any of the following

      persons:

             (1) The holder of the instrument;

             (2) A non-holder in possession of the instrument who has the rights of a

                 holder;
Delaware County, Case No. 13 CAA 0012                                                    9


             (3) A person not in possession of the instrument who is entitled to enforce

                 the instrument pursuant to Section 1303.38 or division (D) of section

                 1303.58 of the Revised Code.

      (B) A person may be a “person entitled to enforce” the instrument even though

          the person is not the owner of the instrument or is in wrongful possession of

          the instrument.

Standing in a foreclosure case requires the lender to establish “an interest in the note or

mortgage at the time it filed suit.” Schwartzwald, 134 Ohio St.3d 13, 979 N.E.2d 1214

(2012).

      {¶19} In this case, the affidavit of Michael Brown filed with appellee’s motion for

default judgment states the records he reviewed contained a note executed by appellant

in the amount of $162,000 secured by a mortgage and states appellee is the servicer of

the loan and is authorized to act on behalf of the holder of the note. It is unclear from

Michael Brown’s affidavit when the note was negotiated to appellee. However, attached

to appellee’s complaint is an assignment of mortgage recorded on January 12, 2011, in

which MERS, as nominee for Ethical Mortgage, assigns appellant’s October 27, 2006

mortgage to appellee.

      {¶20} In Bank of New York v. Dobbs, 5th Dist. No. 2009-CA-000002, 2009-Ohio

4742, we held that the assignment of a mortgage, without an express transfer of the

note, is sufficient to transfer both the mortgage and the note if the record indicates the

parties intended to transfer both the note and mortgage. Id. See also Federal Home

Loan Mtge. Corp. v. Rufo, 983 N.E.2d 406, 2012-Ohio-5930 (11th Dist. 2012) (holding

the assignment of the mortgage also resulted in the transfer of the note on that date);
Delaware County, Case No. 13 CAA 0012                                                 10

Self Help Ventures Fund v. Jones, 11th Dist. No. 2012-A-0014, 2013-Ohio-868 (holding

that assignment of mortgage is sufficient to transfer a contemporaneous note).

      {¶21} This case is analogous to the Dobbs case as the record indicates the

parties intended to transfer both the note and the mortgage. The note dated October

27, 2006 with lender Ethical Mortgage provides as follows:

      In addition to the protections given to the note holder under this note, a

      mortgage * * * (the “Security Instrument”), dated the same date as this

      Note, protects the Note Holder from possible losses which might result if I

      do not keep the promises which I make in this Note.           The Security

      Instrument describes how and under what conditions I may be required to

      make immediate payment in full of all amounts I owe under this Note.

      {¶22} The October 27, 2006 mortgage in which MERS is the mortgagee as

nominee for lender Ethical Mortgage, states that “Security Instrument” means “this

document, which is dated October 27, 2006.” The mortgage further defines the note as

“the promissory note signed by Borrower and dated October 27, 2006.” The mortgage

provides that “[t]his Security Instrument secures to Lender: (i) the repayment of the

Loan, and all renewals, extensions and modifications of the Note; and (ii) the

performance of Borrower’s covenants and agreements under this Security Instrument

and the Note” and that the “Borrower shall pay when due the principal of, and interest

on, the debt evidenced by the Note.”

      {¶23} The note refers to the mortgage and the mortgage refers to the note.

Thus, we find a clear intent by the parties to keep the note and mortgage together rather

than transferring the mortgage alone. The assignment of the mortgage was sufficient to
Delaware County, Case No. 13 CAA 0012                                               11


transfer both the mortgage and the note. Since the mortgage assignment was recorded

on January 12, 2011, approximately eight (8) months before the complaint was filed, the

note was effectively transferred on that date.

       {¶24} Further, we disagree with appellant’s contention that MERS could not

assign the mortgage.     The mortgage specifically states that MERS is “a separate

corporation that is acting solely as nominee for Lender and Lender’s successors and

assigns.” Ethical Mortgage is listed in the mortgage as the lender. Thus, MERS had

the authority to assign the mortgage and note to appellee as nominee for Ethical

Mortgage.

       {¶25} Accordingly, we find that even if the trial court could have properly

addressed appellant’s standing arguments in his Civil Rule 12(B)(1) motion to dismiss,

appellee had standing at the time the complaint was filed.         Appellant’s second

assignment of error is overruled.
Delaware County, Case No. 13 CAA 0012                                            12


      {¶26} Based on the foregoing, we overrule appellant’s first and second

assignments of error. The February 4, 2013 judgment entry of the Delaware County

Common Pleas Court denying appellant’s motion to dismiss complaint pursuant to Civil

Rule 12(B)(1) is affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur



                                          _________________________________
                                          HON. W. SCOTT GWIN


                                          _________________________________
                                          HON. PATRICIA A. DELANEY


                                          _________________________________
                                          HON. CRAIG R. BALDWIN




WSG:clw 0812
[Cite as Wells Fargo Bank, Natl. Assn. v. Elliott, 2013-Ohio-3690.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


WELLS FARGO BANK, NATIONAL
ASSOCIATION                                             :
                                                        :
                             Plaintiff-Appellee         :
                                                        :
                                                        :
-vs-                                                    :        JUDGMENT ENTRY
                                                        :
CHRIS W. ELLIOTT, ET AL                                 :
                                                        :
                                                        :
                       Defendants-Appellant             :        CASE NO. 13 CAE 03 0012




        For the reasons stated in our accompanying Memorandum-Opinion, the February

4, 2013 judgment entry of the Delaware County Common Pleas Court denying

appellant’s motion to dismiss complaint pursuant to Civil Rule 12(B)(1) is affirmed.

Costs to appellant.




                                                            _________________________________
                                                            HON. W. SCOTT GWIN


                                                            _________________________________
                                                            HON. PATRICIA A. DELANEY


                                                            _________________________________
                                                            HON. CRAIG R. BALDWIN
