[Cite as Deutsche Bank Natl. Trust Co. v. Rudolph, 2012-Ohio-6141.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 98383




     DEUTSCHE BANK NATIONAL TRUST COMPANY
                                                          PLAINTIFF-APPELLANT

                                                    vs.


                            KAREN RUDOLPH, ET AL.

                                                          DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                                    Case No. CV-775349

        BEFORE: Boyle, P.J., Jones, J., and Keough, J.

        RELEASED AND JOURNALIZED:                         December 27, 2012
ATTORNEYS FOR APPELLANT

Margaret E. Cunningham
Pamela S. Petas
Gerner & Kearns Co., LPA
215 West Ninth Street
Cincinnati, Ohio 45202


ATTORNEY FOR APPELLEES

For Karen Rudolph

Grace Doberdruk
Dann, Doberdruk & Wellen, LLC
4600 Prospect Avenue
Cleveland, Ohio 44103

For Tidewater Finance Company

Tidewater Finance Company
T/A Tidewater Motor Credit, etc.
6520 Indian River Road
Virginia Beach, Virginia 23464

For Unknown Spouse of Karen Rudolph

Unknown Spouse of Karen Rudolph
4628 Burleigh Road
Garfield Heights, Ohio 44125
MARY J. BOYLE, P.J.:

       {¶1} Plaintiff-appellant, Deutsche Bank National Trust Company, as Indenture

Trustee for New Century Home Equity Loan Trust 2006-2 (“Deutsche”), appeals from the

trial court’s decision granting the motion to dismiss filed by defendant-appellee, Karen

Rudolph.    Deutsche raises three assignments of error:

       [I.] The trial court erred in failing to treat the motion to dismiss the
       complaint as a motion for summary judgment.

       [II.] The trial court erred in dismissing the complaint with prejudice for lack
       of standing.

       [III.] The trial court erred in dismissing the complaint for lack of standing.

       {¶2} For the reasons discussed below, we find that Deutsche satisfied its burden,

stating a cognizable claim suitable for adjudication in the common pleas court.          We,

therefore, find merit to the appeal and reverse.

                               Procedural History and Facts

       {¶3} In February 2012, Deutsche filed an “in rem complaint for foreclosure of a

mortgage.” In 2006, Rudolph executed a promissory note in favor of New Century

Mortgage Corporation in the sum of $94,525, which was later modified by virtue of a

loan modification, increasing the principal balance to $107,360.88. The promissory note

was secured by a mortgage encumbering the property located at 4628 Burleigh Road in

Garfield Heights, Ohio (“the mortgage”).
       {¶4}      In its complaint, Deutsche alleged that it is the holder of both the

promissory note and mortgage. According to the complaint, New Century assigned its

rights in the mortgage and promissory note to Deutsche. In support of these allegations,

Deutsche attached the following documents to its complaint: (1) promissory note with an

allonge1 attached identifying Deutsche as the holder of the promissory note, (2) loan

modification agreement, (3) the mortgage, and (4) an assignment of the mortgage filed

with the Cuyahoga County recorder’s office.

       {¶5}      In its first count of the complaint, Deutsche alleged that Rudolph defaulted

under the terms of the promissory note.         As a result of said default, Deutsche alleged that

Rudolph owes $107,360.88, plus interest, at the rate of 6.5 percent per annum from

February 1, 2009, until the loan is fully repaid.                Deutsche further acknowledged,

however, that Rudolph filed a Chapter 7 bankruptcy, which was discharged on May 5,

2009, and therefore Rudolph is not personally liable on the note.

           {¶6} In its second count of the complaint, Deutsche alleged that Rudolph’s

default under the note entitles it to foreclose on the mortgage and apply the proceeds of a

sheriff’s sale to the balance owed under the note.

           {¶7} In response to Deutsche’s complaint, Rudolph filed a motion to dismiss,

arguing that (1) Rudolph’s mortgage was not transferred to Deutsche “as required by the

Indenture registered with the United States Securities and Exchange Commission,”



       1
            An allonge is an addition to a document often attached on a separate piece of paper.
thereby rendering any conveyance “void”; and (2) Deutsche does not own Rudolph’s note

because the allonge was never affixed to the note.

       {¶8} In support of her first argument, Rudolph cited a web address with the

Securities and Exchange Commission, containing the “Indenture” between New Century

Home Equity Loan Trust 2006-2 (Issuing Entity), and Deutsche Bank National Trust

Company (Indenture Trustee) — a 205-page document —               and asked the court to take

judicial notice of it.    According to Rudolph, the Indenture reveals that Deutsche’s

“closing date” preceded the date of its acquisition of the mortgage, thereby rendering any

transfer of the mortgage void.     We note that a trust indenture is defined as “a document

containing the terms and conditions governing a trustee’s conduct and the trust

beneficiaries’ rights.”    Black’s Law Dictionary 838 (9th Ed.2009).             According to

Rudolph, the trust had a “specific closing date of June 26, 2006” and that any assignments

after this date, such as the assignment of the mortgage at issue in 2009, contravenes the

terms of the Indenture or Pool and Servicing Agreement (“PSA”), and is therefore “void”

under New York law.2

       {¶9} As for her second argument, Rudolph contended that “the note has two hole

punch marks on it, but the allonge which purports to indorse the note to the trust does not

have any hole punch marks.” Without citing any legal authority in support, Rudolph

argued that due to the absence of the hole punch marks, “the allonge was never attached


       2
          Although Rudolph claimed that the transfer also violated the PSA, Rudolph did not offer
the PSA as evidence nor does the website referenced contain a copy of the PSA.
to the original note and was not affixed in accordance with R.C. 1303.24.” Rudolph

further argued that if Deutsche is not the holder of the note, there is no justiciable

controversy between the parties, and the trial court lacked subject matter jurisdiction.

       {¶10} On April 4, 2012 — one week following Rudolph’s filing of the motion to

dismiss — Deutsche filed a motion for an order treating the motion to dismiss as a motion

for summary judgment and for extension of time to respond.          The trial court denied the

motion on April 8, 2012, stating that Deutsche had until April 9 to file a response.

Meeting the court’s deadline, Deutsche opposed the motion, raising several arguments as

to why dismissal was improper, including that the complaint states a claim upon which

relief can be granted.

       {¶11} The trial court subsequently granted Rudolph’s motion to dismiss, stating

that the case was “DWP” and that “the court retains jurisdiction over all postjudgment

motions.” Deutsche then filed a request for findings of fact and conclusions of law,

which was never ruled upon by the trial court prior to Deutsche filing its notice of

appeal.3

       {¶12} On appeal, this court remanded the case to the trial court to clarify whether

the case was dismissed with or without prejudice. Following our remand, the trial court

entered the following judgment order:



       3
           Once a final order has been appealed, it is well settled that any motion that was not
expressly ruled upon is considered denied. See CitiMortgage, Inc. v. Hoge, 196 Ohio App.3d 40,
2011-Ohio-3839, 962 N.E.2d 327, ¶ 9 (8th Dist.).
       In response to Plaintiff’s request to clarify, the docket already clearly states
       that the case is dismissed w/prejudice; when a case is dismissed without
       prejudice, the docket states, dismissed w/o prejudice; additionally the court
       notes that it made a substantive ruling on the motion to dismiss and could
       not grant the motion and then dismiss the case on the arguments without
       prejudice and retained jurisdiction over all post-judgment motions which
       refers to post dismissal with prejudice.

       {¶13} Given that the dismissal is one with prejudice, the judgment is a final

appealable order and ripe for our review.

       {¶14} For ease of discussion, we will address Deutsche’s assignments of error out

of order.

                                     Motion to Dismiss

       {¶15} In its third assignment of error, Deutsche argues that the trial court erred in

granting Rudolph’s motion to dismiss because it sufficiently demonstrated that it has

standing to bring the foreclosure action.   We agree.

       A. Standing

       {¶16} “Standing determines ‘whether a litigant is entitled to have a court

determine the merits of the issues presented.’    Whether a party has established standing

to bring an action before the court is a question of law, which we review de novo.”

(Citations omitted.) Moore v. Middletown, Ohio, 133 Ohio St.3d 55, 2012-Ohio-3897,

975 N.E.2d 977, ¶ 20.

       To succeed in establishing standing, plaintiffs must show that 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. These
       three factors — injury, causation, and redressability — constitute “the
       irreducible constitutional minimum of standing.”
(Citations omitted.) Id. at ¶ 22.

         {¶17} In foreclosure cases, the plaintiff must establish it has an interest in the note

or mortgage at the time it filed suit to demonstrate standing to invoke the jurisdiction of

the common pleas court.         Fed. Home Loan Mtge. Corp. v. Schwartzwald, Slip Opinion

No. 2012-Ohio-5017, ¶ 27-28.         Lack of standing cannot be cured after the complaint is

filed.       Id.   The plaintiff, however, need not be the original holder of the note or

mortgage; instead, it must be the current holder at the time of filing the complaint to

establish that it is the real party in interest to bring the action. See Washington Mut.

Bank, F.A. v. Green, 156 Ohio App.3d 461, 2004-Ohio-1555, 806 N.E.2d 604 (7th Dist.).

         {¶18} “A motion to dismiss for lack of standing is treated as a motion to dismiss

pursuant to Civ.R. 12. Specifically, a lack of standing may properly be raised in a

motion to dismiss premised on Civ.R. 12(B)(6).”               (Citations omitted.)      Revocable

Living Trust of Mandel v. Lake Erie Utils. Co., 8th Dist. No. 97859, 2012-Ohio-5718, ¶

11. It is not properly raised under Civ.R. 12(B)(1).4 PNC Bank, Natl. Assn. v. Botts,

10th Dist. No. 12AP-256, 2012-Ohio-5383, ¶ 22. Instead, the issue of standing can be

properly raised under a Civ.R. 12(B)(6) motion. Id.

         {¶19} We, therefore, limit our discussion to whether the trial court properly

granted Rudolph’s motion to dismiss under Civ.R. 12(B)(6).

         4
          Unlike Civ.R. 12(B)(6), which prohibits the court from considering evidence outside of the
pleadings without converting the motion to one for summary judgment, Civ.R. 12(B)(1) allows a court
to consider any pertinent evidentiary materials outside of the pleadings when determining its own
subject matter jurisdiction. See Southgate Dev. Corp. v. Columbia Gas Transm. Corp., 48 Ohio St.2d
211, 358 N.E.2d 526 (1976), paragraph one of the syllabus.
      B. Civ.R. 12(B)(6) Standard of Review

      {¶20} We review an order dismissing a complaint for failure to state a claim for

relief de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814

N.E.2d 44. When reviewing a Civ.R. 12(B)(6) motion to dismiss, we must accept the

material allegations of the complaint as true and make all reasonable inferences in favor

of the plaintiff. Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 280, 2005-Ohio-4985,

834 N.E.2d 791. But “[u]nsupported conclusions of a complaint are not considered

admitted * * * and are not sufficient to withstand a motion to dismiss.” State ex rel.

Hickman v. Capots, 45 Ohio St.3d 324, 324, 544 N.E.2d 639 (1989). For a defendant to

prevail on the motion, it must appear from the face of the complaint that the plaintiff can

prove no set of facts that would justify a court in granting relief.     O’Brien v. Univ.

Comm. Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).

      {¶21} Applying a de novo standard of review, we turn to the critical issue on

appeal — whether Deutsche’s complaint stated a claim for which relief can be granted.

      C. Allegations of the Complaint

      {¶22} In this case, Deutsche pled that it is the holder of the promissory note and

mortgage.   Deutsche further attached to the complaint supporting documents, i.e., (1) the

promissory note with an allonge, and (2) an assignment of the mortgage.     The complaint

and accompanying documents demonstrate that Century Mortgage Corporation assigned

the mortgage to Deutsche on April 23, 2009, approximately three years prior to

Deutsche’s filing of the foreclosure action.     Deutsche further alleged that Rudolph
defaulted under the terms of the promissory note secured by the mortgage that it holds.

Thus, taking these factual allegations as true as we are required to, coupled with the

supporting documents attached to the complaint, we find that Deutsche properly

demonstrated that it is the real party in interest and sufficiently pled the elements for a

foreclosure action.   See Wells Fargo Bank, N.A. v. Stovall, 8th Dist. No. 91803,

2010-Ohio-236; Chase Home Fin., LLC v. Yost, 6th Dist. No. E-12-004, 2012-Ohio-5322.

      {¶23} To reach a contrary decision, the trial court must not have construed

Deutsche’s factual allegations as true and must have considered matters outside of the

record — both of which are expressly prohibited in considering a motion to dismiss under

Civ.R. 12(B)(6). Indeed, a motion to dismiss for failure to state a claim upon which

relief can be granted is procedural and solely tests the sufficiency of the complaint.

State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 605 N.E.2d

378 (1992). Here, Deutsche’s complaint was sufficient to withstand such a motion.

      D.     Rudolph’s Arguments Raised in Support of Motion

      {¶24} We further note that the two arguments raised by Rudolph in support of her

motion to dismiss lacked merit for purposes of dismissing the complaint with prejudice.

First, to the extent that Rudolph sought to establish that Deutsche was not the holder of

the mortgage on the grounds that the transfer occurred in violation of a PSA or the

Indenture Agreement, Rudolph has no standing to raise such an argument. See Bank of

New York Mellon Trust Co. v. Unger, 8th Dist. No. 97315, 2012-Ohio-1950, ¶ 35, citing
Bridge v. Aames Capital Corp., Case No. 1:09 CV 2947, 2010 U.S. Dist. LEXIS 103154

(N.D.Ohio 2010).

       {¶25} In Unger, this court rejected the very argument that Rudolph asserted in her

motion to dismiss, recognizing that an assignment does not alter the mortgagor/debtor’s

obligations under the note or mortgage and that the foreclosure complaint is based on the

mortgagor’s default under the note and mortgage — not because of the mortgage

assignment. Id. at ¶ 35.         Accordingly, following federal precedent, the Unger court

recognized that when a mortgagor, such as Rudolph, is not a party to the transfer

agreement, and her contractual obligations under the mortgage are not affected in any way

by the assignment, the mortgagor lacks standing to challenge the validity of the

assignment. Id. at ¶ 33-35.

       {¶26} Accordingly, under Unger, Rudolph has no standing to challenge the

validity of the assignment of the mortgage to Deutsche, despite her broad claim that

Deutsche failed to comply with the PSA or its own Indenture Agreement.5

       {¶27} Similarly, Rudolph’s claim that the allonge was never affixed to the

promissory note, thereby negating Deutsche’s status as holder of the note, could not be

decided by virtue of a motion to dismiss. Indeed, Deutsche properly pled that it is the

holder of the note.     Taking this allegation as true, coupled with the fact that the allonge

identifies Deutsche as the holder of the note, Rudolph’s arguments attacking the allonge

       5
            Based on our analysis above, we note that, even if the trial court was permitted to consider
the evidentiary materials cited in Rudolph’s motion to dismiss under Civ.R. 12(B)(1), her arguments
failed to demonstrate that Deutsche lacked standing, and any dismissal was therefore improper.
are insufficient to warrant dismissal under Civ.R. 12(B)(6).     See State ex rel. Drake v.

Athens Cty. Bd. of Elections, 39 Ohio St.3d 40, 528 N.E.2d 1253 (1988) (a trial court

cannot assume the role of fact finder when considering a Civ.R. 12(B)(6) motion to

dismiss).

      {¶28} We further note that Rudolph cites no authority that the absence of the hole

punch marks on the allonge deems it not affixed for purposes of R.C. 1303.24(A)(2).

Nor do we find any authority. Thus, even if this argument was properly raised in a

motion for summary judgment, we question whether it carries any merit.           Indeed, the

promissory note may have had hole punch marks prior to the execution of the allonge.

      {¶29} Thus, having found that Deutsche sufficiently pled a claim entitling it to

relief, we agree that the trial court erroneously granted Rudolph’s motion to dismiss.

Accordingly, we sustain the third assignment of error.

                               Matters Outside the Record

      {¶30} In its first assignment of error, Deutsche argues that the trial court erred in

considering matters outside the record without first converting the motion to dismiss into

a motion for summary judgment and giving Deutsche adequate time to respond.

Rudolph counters that the trial court could take judicial notice of the Indenture Trust

Agreement that she referenced in her motion to dismiss, and therefore did not need to

convert the motion to dismiss into a motion for summary judgment.

      {¶31} Evid.R. 201 governs judicial notice of adjudicative facts.

      A judicially noticed fact must be one not subject to reasonable dispute in
      that it is either (1) generally known within the territorial jurisdiction of the
       trial court or (2) capable of accurate and ready determination by resort to
       sources whose accuracy cannot reasonably be questioned.

Evid.R. 201(B).

       {¶32} We fail to see how the contents of the 205-page Indenture Agreement

contained on the Securities Exchange Commission’s website falls within the realm of

Evid.R. 201. Indeed, Evid.R. 201(A) expressly limits the scope of judicial notice to

“adjudicative facts”; i.e., the facts of the case. Here, Rudolph seeks to establish through

the 205-page document listed on the SEC’s website that there is an Indenture Trust

Agreement and that the closing date of the trust preceded the transfer date of the

assignment to Deutsche. Rudolph’s link to the SEC’s website, however, fails to set forth

this fact without further inquiry. In Rude v. NUCO Edn. Corp., 9th Dist. No. 25549,

2011-Ohio-6789, ¶ 16, the court held that it could not take judicial notice of facts posted

on a website because it “did not supply the information in a manner that allows for

judicial notice of a discrete fact without further inquiry.”

       {¶33} The sole case that Rudolph cites for the proposition that the trial court could

take judicial notice under Evid.R. 201 of the Indenture Agreement does not support such

a statement.   Instead, the case discusses Fed.R.Evid. 902(B), dealing with evidence that

is self-authenticating.    See Sannes v. Jeff Wyler Chevrolet, Inc., S.D.Ohio No.

C-1-97-930, 1999 U.S. Dist. LEXIS 21748, at *3 n.3 (Mar. 31, 1999).

       {¶34} But even assuming the Indenture Trust Agreement and its contents were

subject to judicial notice, the trial court still erred in not converting the motion to dismiss

into a motion for summary judgment and allowing Deutsche additional time to respond.
As this court has previously recognized, “the taking of judicial notice involves

consideration of evidence outside the complaint.” NorthPoint Props. v. Petticord, 179

Ohio App.3d 342, 2008-Ohio-5996, 901 N.E.2d 869, ¶ 17 (8th Dist.). Thus, before a

trial court can take judicial notice of a fact, it is required to notify all the parties at least 14

days prior to the time of hearing that it is converting a defendant’s motion to dismiss for

failure to state a claim into a motion for summary judgment. Id., citing Petrey v. Simon,

4 Ohio St.3d 154, 447 N.E.2d 1285 (1983).

       {¶35} Here, the trial court refused to give Deutsche additional time to respond to

Rudolph’s motion to dismiss, despite the fact that the motion was premised on the trial

court taking judicial notice of matters outside of the record. Accordingly, the first

assignment of error is sustained.

                  Lack of Standing Requires Dismissal Without Prejudice

       {¶36} In its second assignment of error, Deutsche argues that, even if it did not

have standing to bring the foreclosure action, the trial court was required to dismiss the

action without prejudice.     We agree.     The Ohio Supreme Court recently reaffirmed this

principle in Schwartzwald, Slip Opinion No. 2012-Ohio-5017, noting the following: “The

lack of standing at the commencement of a foreclosure action requires dismissal of the

complaint; however, that dismissal is not an adjudication on the merits and is therefore

without prejudice.” Id. at ¶ 40, citing State ex rel. Coles v. Granville, 116 Ohio St.3d

231, 2007-Ohio-6057, 877 N.E.2d 968, ¶ 51.

       {¶37} The second assignment of error is sustained.
       {¶38} Having sustained all three assignments of error, we reverse the judgment of

the trial court and remand for further proceedings.

       It is ordered that appellant recover from appellees costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
