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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


U.S. BANK NATIONAL ASSOCIATION,                  NO. 70140-1-
as trustee of THE BANC OF AMERICA
FUNDING 2007-D, its successors in                DIVISION ONE
interest and/or assigns

                     Respondent,

                     v.



BLAIR LA MOTHE,                                  UNPUBLISHED OPINION

                     Appellant.                  FILED: May 12, 2014




       Lau, J. — Blair La Mothe appeals a judgment and a decree of foreclosure entered

in favor of U.S. Bank after a bench trial. For the first time on appeal, he contends U.S.

Bank was not the real party in interest and lacked standing to seek a judicial

foreclosure, and the trial court improperly admitted the note as a trial exhibit. Because

the record shows La Mothe (1) conceded that U.S. Bank is the real party in interest, (2)

failed to preserve his standing argument, and (3) failed to object to the note's admission

at trial, we affirm the judgment and decree of foreclosure.
70140-1-1/2



                                            FACTS


       In 2005, La Mothe obtained a $700,000 loan from Wells Fargo, secured by a

deed of trust encumbering his residential property. He defaulted on the loan in 2009.

Wells Fargo endorsed the promissory note to U.S. Bank National Association, as

trustee for a loan trust known as Banc of America Funding 2007-D. In May 2010, Wells

Fargo assigned its beneficial interest under the deed of trust to U.S. Bank. In August

2011, U.S. Bank brought this judicial foreclosure action against La Mothe.1 Following a

bench trial, the trial court entered judgment and a decree of foreclosure for U.S. Bank.

       In relevant part, the trial court found, "The promissory note is endorsed ... to

Plaintiff," and there is "an Assignment of [the] Deed of Trust to Plaintiff which was

recorded . .. ." It then concluded, "Pursuant to the terms of the note and deed of trust,

Plaintiff is entitled to foreclose" and "[t]he correct party in interest was before the

court... by and through . . . Wells Fargo Bank, N.A., attorney in fact for Plaintiff." La

Mothe assigned no error to the court's factual findings or conclusions of law. La Mothe

appeals.

                                          ANALYSIS

       La Mothe's sole assignment of error states, "The Judge of the Superior Court

committed reversible error in not dismissing the underlying Amended Complaint

because Respondent was not a real party in interest and lacked standing to seek a

         1 La Mothe initially defended the action pro se but hired counsel on the eve of
trial. At trial, defense counsel stated, "And so Ijust want to apologize that I was not able
to get this case into shape. Mr. La Mothe was—it's pretty hard to get a lawyer under
these circumstances. I—most lawyers would say, you know, I can't get into this, but I
felt it would be better if he had a lawyer, even one that was not completely prepared,
than to come in here on his own and try to resolve the case. So I've—I'm here and I'm
going to do the best Ican, Your Honor." Report of Proceedings (Feb. 13, 2013) at 8-9.
70140-1-1/3



judicial foreclosure." Br. of Appellant at 1. La Mothe contends the core issue is

"[wjhether [U.S. Bank] was the real party in interest and/or had standing to initiate the

foreclosure and whether the Amended Complaint should have been dismissed." Br. of

Appellant at 1. For the reasons discussed below, we affirm.

       Standing

       La Mothe contends for the first time on appeal that the trial court erred in failing

to dismiss U.S. Bank's complaint for lack of standing.2 Implicitly acknowledging he

failed to raise lack of standing below, La Mothe argues that standing is a jurisdictional

issue that "may be disputed at any stage of a proceeding, even on appeal."3 Reply Br.
of Appellant at 3. We are not persuaded by this jurisdiction claim. The argument

conflicts with controlling authority. In Trinitv Universal Insurance Co. of Kansas v. Ohio
Casualty Insurance Co., 176 Wn. App. 185, 312 P.3d 976 (2013), Ohio argued lack of

standing means the trial court lacked subject matter jurisdiction so the default order is
void. We held that "in Washington, a plaintiff's lack of standing is not a matter of subject

matter jurisdiction." Trinity, 176 Wn. App. at 199. We reasoned:



        2Standing and real party in interest are "distinct doctrines." Spraaue v. Sysco
Corp.. 97 Wn. App. 169, 176 n.2, 982 P.2d 1202 (1999). "Standing requires thatthe
plaintiff demonstrate an injury to a legally protected right. The real party in interest is
the person who possesses the right sought to be enforced." Spraaue, 97 Wn. App. at
176 n.2: see also 14 Karl B. Tegland, Washington Practice: Civil Procedure § 11:2,
at 380 (2d ed. 2009) ("Standing to sue is a separate doctrine [from CR 17(a) real party
in interest] and is most commonly used to determine whether a party may raise a
constitutional challenge to some governmental action.").

       3La Mothe's reply brief claims U.S. Bank raised an "additional argument that the
doctrine of res judicata functions as a waiver of the requirement that a plaintiff have
standing      " Reply Br. of Appellant at 3. Our review of U.S. Bank's appellate brief
shows U.S. Bank raised no res judicata issue on appeal.
70140-1-1/4



       A court enters a void order only when it lacks personal jurisdiction or subject
       matter jurisdiction over a claim. We use caution in characterizing an issue as
       jurisdictional or a judgment as void, because the consequences of a court acting
       without subject matter jurisdiction "are draconian and absolute."

Trinity. 176 Wn. App. at 198 (quoting Cole v. Harvevland. LLC. 163 Wn. App. 199, 205,

258 P.3d 70 (2011)). We also observed that "the critical concept in determining

whether a court has subject matter jurisdiction is the type of controversy." Trinitv, 176

Wn. App. at 199 (citing Cole. 163 Wn. App. at 209). We also observed:

       Ohio cites a footnote from a 2002 Washington Supreme Court opinion that says,
       "[Standing is a jurisdictional issue that can be raised for the first time on appeal."
       Int'l Ass'n of Firefighters, Local 1789 v. Spokane Airports. 146 Wn.2d 207, 212 n.
       3, 45 P.3d 186, 50 P.3d 618 (2002). This is the type of "drive-by jurisdictional
       ruling" we recently declined to rely on in Cole. 163 Wn. App. at 208.

Trinitv, 176 Wn. App. at 199 n.7 (alteration in original).

We also cited our precedent in Ullery v. Fulleton. 162 Wn. App. 596, 256 P.3d 406

(2011). There, we explained that "article IV, section 6 of the Washington Constitution

does not exclude any sort of causes from the jurisdiction of its superior courts, leaving

Washington courts, by contrast with federal courts, with few constraints on their

jurisdiction." Ullery, 162 Wn. App. at 604. Under Ullery, standing is a defense that may

be waived by the defendant.4 Ullery, 162 Wn. App. at 604. Because "lack of standing is

not a matter of subject matter jurisdiction," La Mothe's lack of standing claim is waived.

Trinitv, 176 Wn. App. at 199; see also RAP 2.5(a); Ullery, 162 Wn. App. at 604.



       4 La Mothe's reply brief cites International Association of Firefighters and
Spokane Airports v. RMA, Inc., 149 Wn. App. 930, 939, 206 P.3d 364 (2009). La Mothe
also argues that U.S. Bank "confuses jurisdictional standing with prudential standing."
Reply Br. of Appellant at 3. We disagree and adhere to our analysis in Trinitv and
Ullery. While La Mothe acknowledges U.S. Bank's reliance on Trinity, we note that he
never discusses or analyzes Trinitv or Ullery.
70140-1-1/5



       Real Party in Interest

       La Mothe also contends U.S. Bank was not a real party in interest under

CR 17(a) because a different party, Wells Fargo, held the note and deed of trust. We

need not address this claim because, as noted above, La Mothe's counsel properly

conceded the issue at oral argument before this court. We accept his concession. La

Mothe advanced the opposite real-party-in-interest theory at trial and thus failed to

preserve the present argument for appeal.5 RAP 2.5(a). The claim also fails because
La Mothe assigned no error to the trial court's written finding, stating in part, "The

correct party in interest was before the court. . . ."6 Unchallenged findings offact are
verities on appeal.7 RAP 10.3(a)(4); RAP 10.3(g); Cowiche Canvon Conservancy v.

Boslev, 118 Wn.2d 801, 808, 828 P.2d 549 (1992).



        5At trial, La Mothe was asked by his lawyer, "Do you know who is entitled to
collect money from you on this loan?" Report of Proceedings (RP) (Feb. 13, 2013)
at 87. La Mothe responded, "U.S. Bank." RP (Feb. 13, 2013) at 87. And later, during a
discussion with La Mothe's counsel near the end of trial, the court confirmed, "You're
saying U.S. Bank is the real party in interest." RP (Feb. 13, 2013) at 110. Counsel
responded, "Yes." RP (Feb. 13, 2013) at 110.

        6The court expressly found that Wells Fargo endorsed the original note and
assigned the deed of trust to U.S. Bank:
       "F. Wells Fargo Bank, N.A., executed an Assignment of Deed of Trust to Plaintiff
[U.S. Bank] which was recorded on May 25, 2010, under King County Recording
Number 20100525001201.
        "G. Plaintiff, through their attorney, brought the original promissory note to court
during the trial. The promissory note is endorsed by Wells Fargo Bank, N.A. to Plaintiff.
The correct party in interest was before the court on February 13, 2013, by and through
Brock Wiggins, VP of Loan Documentation at Wells Fargo Bank, N.A., attorney in fact
for Plaintiff."

        7In his reply brief, La Mothe argues he "timely appealed from the King County
Superior Court's formal findings, conclusion, judgment, order and decree of foreclosure
and attorney fee and cost award." Reply Br. of Appellant at 1. This argument is
immaterial. It is undisputed that La Mothe timely filed his notice of appeal.
70140-1-1/6



                                   CONCLUSION

       For the reasons discussed above, we affirm the judgment and decree of

foreclosure.



                                                         ^34L
WE CONCUR:
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