[Cite as Wells Fargo Bank N.A. v. Horn, 2013-Ohio-2374.]


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

WELLS FARGO BANK NA                                        C.A. No.   12CA010230

        Appellee

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
BRIAN HORN, et al.                                         COURT OF COMMON PLEAS
                                                           COUNTY OF LORAIN, OHIO
        Appellants                                         CASE No.   10CV167220

                                DECISION AND JOURNAL ENTRY

Dated: June 10, 2013



       CARR, Judge.

       {¶1}     Appellant, Brian Horn, appeals the judgment of the Lorain County Court of

Common Pleas. This Court reverses and remands this matter to the trial court for the complaint

to be dismissed.

                                                    I.

       {¶2}     On November 21, 1993, Brian and Carol Horn executed a note for $49,323 in

favor of Norwest Mortgage, Inc., for the property located at 9800 Root Road in Columbia

Township, Ohio. The note was secured by an open-end mortgage.

       {¶3}     Wells Fargo filed the instant foreclosure action on April 19, 2010. The named

defendants in the complaint were Brian Horn, Carol Horn, Jane Doe, the unknown spouse of

Brian Horn, the Lorain County Treasurer, Huntington National Bank, and First Merit Bank. On

June 2, 2010, Brian Horn, acting pro se, filed a handwritten “Response to Complaint.” On July

21, 2010, Wells Fargo filed a motion for summary judgment. On September 2, 2010, Mr. Horn
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filed a motion for leave to file an answer instanter in because he had retained counsel. On

September 16, 2010, a magistrate granted the motion for leave, and Mr. Horn filed his formal

answer to the complaint. In his answer, Mr. Horn claimed that Wells Fargo “may not be the real

party in interest and lacks standing to bring said claim against Defendant.” Subsequently, on

May 12, 2011, Wells Fargo filed an amended motion for summary judgment. On June 2, 2011,

Mr. Horn filed a brief in opposition to the amended motion for summary judgment.

      {¶4}     On June 24, 2011, the magistrate issued findings of fact and conclusions of law,

and determined that Wells Fargo was entitled to summary judgment on the note and mortgage.

On the same day, the trial court issued a journal entry adopting the magistrate’s findings and

granting summary judgment in favor of Wells Fargo.

      {¶5}     Mr. Horn filed a notice of appeal from the June 24, 2011 journal entry. On

August 11, 2011, the Court issued a journal entry dismissing the appeal on the basis that the trial

court had yet to issue a judgment of foreclosure.

      {¶6}     On August 26, 2011, Mr. Horn filed a motion in the trial court requesting that the

summary judgment order be vacated pursuant to Civ.R. 60(B).                 Wells Fargo filed a

memorandum in opposition to the motion on April 6, 2012. On April 27, 2012, the trial court

issued a journal entry denying Horn’s motion on the basis that he had not presented a meritorious

defense. The trial court also granted the decree of foreclosure, setting forth the priority of the

liens on the property.

      {¶7}     Mr. Horn filed a timely notice of appeal.       On appeal, Mr. Horn raises four

assignments of error.
                                                3


                                               II.

                                ASSIGNMENT OF ERROR I

      THE TRIAL COURT ERRED IN ALLOW[ING]                               MANIPULATED
      DOCUMENTS SUBMITTED AS EVIDENCE.

                                ASSIGNMENT OF ERROR II

      THE TRIAL COURT ERRED IN FINDING WELLS FARGO BANK MADE
      REASONABLE EFFORTS TO ARRANGE A FACE-TO-FACE INTERVIEW
      (CFR 203.604).

                               ASSIGNMENT OF ERROR III

      THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
      WHICH JUDGMENT WAS NOT FINAL AND APPEALABLE.

                               ASSIGNMENT OF ERROR IV

      WAS BRIAN HORN’S ATTORNEY, MR. MARK DANN, ACTING IN
      CLIENT’S BEST INTEREST?

      {¶8}     Mr. Horn raises four assignments of error in which he argues that the trial court

erred in granting summary judgment in favor of Wells Fargo. We agree.

      {¶9}     “We note that [a] foreclosure requires a two[-]step process.” (Internal quotations

and citations omitted.) Natl. City Bank. v. Skipper, 9th Dist. No. 24772, 2009-Ohio-5940, ¶ 25.

“The prerequisites for a party seeking to foreclose a mortgage are execution and delivery of the

note and mortgage; valid recording of the mortgage; default; and establishing an amount due.”

(Internal quotations and citations omitted.) CitiMortgage, Inc. v. Firestone, 9th Dist. No. 25959,

2012–Ohio–2044, ¶ 11. “Once a court has determined that a default on an obligation secured by

a mortgage has occurred, it must then consider the equities of the situation in order to decide if

foreclosure is appropriate.” (Internal quotations and citations omitted.) Skipper at ¶ 25. As the

Ohio Supreme Court recently decided, before a court can consider this, the plaintiff must

establish that it has standing to proceed. See Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134
                                                  4


Ohio St.3d 13, 2012-Ohio-5017, ¶ 40. “It is well established that before an Ohio court can

consider the merits of a legal claim, the [party] seeking relief must establish standing to sue.”

State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 469 (1999), citing

Ohio Contractors Assn. v. Bicking, 71 Ohio St.3d 318, 320 (1994).

      {¶10}    Civ. R. 17(A) states, in a pertinent part:

      Every action shall be prosecuted in the name of the real party in interest. An
      executor, administrator, guardian, bailee, trustee of an express trust, a party with
      whom or in whose name a contract has been made for the benefit of another, or a
      party authorized by statute may sue in his name as such representative without
      joining with him the party for whose benefit the action is brought.

“‘In foreclosure actions, the real party in interest is the current holder of the note and mortgage.’”

U.S. Bank, N.A. v. Richards, 189 Ohio App.3d 276, 2010-Ohio-3981, ¶ 13 (9th Dist.), quoting

Everhome Mtge. Co. v. Rowland, 10th Dist. No. 07AP-615, 2008-Ohio-1282, ¶ 12. Civ.R. 17(A)

is not applicable “unless the plaintiff ha[s] standing to invoke the jurisdiction of the court in the

first place * * *.” Wells Fargo Bank, N.A. v. Jordan, 8th Dist. No. 91675, 2009-Ohio-1092, ¶

21, quoting Northland Ins. Co. v. Illuminating Co., 11th Dist. Nos. 2002-A-0058, 2002-A-0066,

2004-Ohio-1529, ¶ 17.

      {¶11}    The trial court decided that Wells Fargo had standing when it granted summary

judgment. In Schwartzwald, however, the Supreme Court held that because standing is required

to invoke the jurisdiction of the common pleas court, “standing is to be determined as of the

commencement of suit.” Schwartzwald at ¶ 24, quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 570-571 (1992). A party may not later rely on the Rules of Civil Procedure to cure a lack of

standing when it has failed to demonstrate that it had standing at the time the complaint was

filed. Schwartzwald at ¶ 37-38. The high court concluded that “[t]he lack of standing at the

commencement of a foreclosure action requires dismissal of the complaint[.]” Id. at ¶ 40.
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      {¶12}    In this case, Wells Fargo filed its complaint on April 19, 2010. A review of the

complaint does not demonstrate that it had standing at the time it filed its foreclosure complaint.

In the caption, Wells Fargo identified itself as the “successor by merger to Wells Fargo Home

Mortgage, Inc. fka Norwest Mortgage, Inc.” However, while Wells Fargo attached several

documents to the complaint, including the note and mortgage, no documents evidencing a

merger or a name change were attached. The note and mortgage each identify the Horns as the

borrowers and Norwest Mortgage, Inc. as the lender.

      {¶13}    It follows that Wells Fargo lacked standing to bring the foreclosure action against

the Horns. While Wells Fargo later tried to demonstrate that a merger and name change had

occurred in the exhibits attached to its motion for summary judgment, it was required to

demonstrate that it had standing to invoke the jurisdiction at the time the complaint was filed,

and it failed to do so in the complaint and the documents attached thereto. Wells Fargo v.

Burrows, 9th Dist. No. 26326, 2012-Ohio-5995, ¶ 15.           Therefore, the trial court erred in

concluding that Wells Fargo was entitled to judgment as a matter of law. Pursuant to the Ohio

Supreme Court’s decision in Schwartzwald, we are required to sustain Mr. Horn’s assignments

of error, reverse summary judgment, and order the trial court to dismiss the complaint without

prejudice.

                                               III.

      {¶14}    Mr. Horn’s assignments of error are sustained. The judgment of the Lorain

County Court of Common Pleas is reversed and the cause remanded for further proceedings

consistent with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.
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       There were reasonable grounds for this appeal.

       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.




                                                     DONNA J. CARR
                                                     FOR THE COURT



MOORE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

BRIAN HORN, pro se, Appellant.

SCOTT A. KING and NICHOLAS W. MYLES, Attorneys at Law, for Appellee.
