[Cite as Waterfall Victoria Master Fund Ltd. v. Yeager, 2013-Ohio-3206.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


WATERFALL VICTORIA MASTER                               :           OPINION
FUND LIMITED,
                                                        :
                 Plaintiff-Appellee,                                CASE NO. 2012-L-071
                                                        :
        - vs -
                                                        :
LAURA M. YEAGER, et al.,
                                                        :
                 Defendants-Appellants.


Civil Appeal from the Lake County Court of Common Pleas, Case No. 10 CF 001450.

Judgment: Affirmed.


F. Peter Costello and Kristi L. Pallen, Reimer, Arnovitz, Chernek, & Jeffrey Co., L.P.A.,
2450 Edison Boulevard, P.O. Box 968, Twinsburg, OH 44087 (For Plaintiff-Appellee).

Bruce M. Broyles, 5815 Market Street, Suite 2, Youngstown, OH                        44512 (For
Defendants-Appellants).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellants, Laura M. Yeager and Michael W. Yeager, appeal the judgment

of the Lake County Court of Common Pleas denying their Civ.R. 60(B) motion seeking

relief from default judgment, which resulted in foreclosure of their real property.

Appellants sought relief pursuant to Civ.R. 60(B)(5), arguing appellee, Waterfall Victoria

Master Fund Limited, did not have an interest in the note or mortgage. Appellants

essentially argued that, because of its position that appellee had no interest in the note

and mortgage, appellee did not have standing to bring the action. After a review of the
record, as well as the developing case law in Ohio, we find that an assignment of the

mortgage was attached to the complaint for foreclosure, sufficiently establishing

appellee’s standing at the time the suit was initiated. As a result, the trial court properly

concluded it had jurisdiction to proceed with the case, and the judgment is affirmed.

       {¶2}   On May 14, 2010, appellee filed a complaint for foreclosure, alleging

appellants’ default on a note in the sum of $164,839.88, plus interest. Specifically

relevant to this appeal, the following was attached to the complaint: a copy of the

mortgage, with EquiFirst Corporation listed as the lender and Mortgage Electronic

Registration Systems, Inc. (“MERS”) as its nominee; an assignment of the mortgage

from MERS, as nominee for EquiFirst Corporation, to Deutsche Bank National Trust

Company, as trustee for the Registered Holders of Soundview Home Loan Trust Series

2006-EQ2; an assignment of the mortgage from Deutsche Bank National Trust

Company, as trustee for the registered holders of Soundview Home Loan Trust 2006, to

appellee.

       {¶3}   The trial court’s docket entry of June 3, 2010, indicates that appellants

were personally served on May 26, 2010. No answer to the complaint was filed by

appellants. In response to a court order, an updated preliminary judicial report, filed on

June 16, 2010, reflected appellee as the mortgage holder by way of assignment.

       {¶4}   On January 4, 2011, appellee filed a motion for default judgment, which

the trial court granted. In the trial court’s judgment entry, it found that all necessary

parties had been served with summons and were properly before the court. It found

appellee to be entitled to the sum set forth in the complaint. An appeal was taken from

this judgment in Waterfall Victoria Master Fund Ltd. v. Yeager, 11th Dist. No. 2011-L-

025, 2012-Ohio-124, wherein this court affirmed the default judgment.


                                             2
       {¶5}   On August 29, 2011, appellants’ home was sold at sheriff’s sale. On May

11, 2012, appellants filed a motion to stay the confirmation of the sale. Also on May 11,

2012, appellants filed a Civ.R. 60(B) motion seeking relief from the default judgment. In

their motion, appellants argued appellee did not have any interest in the property upon

which it foreclosed.     The trial court denied appellants’ Civ.R. 60(B) motion and

confirmed the sheriff’s sale.

       {¶6}   Appellants now appeal the judgment and assert one assignment of error

for review. Appellants’ assignment of error states:

       {¶7}   “The trial court erred in denying the motion for relief from judgment.”

       {¶8}   Civ.R. 60(B) provides, in pertinent part:

       {¶9}   On motion and upon such terms as are just, the court may relieve a

              party * * * from a final judgment * * * for the following reasons: (1)

              mistake, inadvertence, surprise or excusable neglect; (2) newly

              discovered evidence which by due diligence could not have been

              discovered in time to move for a new trial under Rule 59(B); (3)

              fraud * * *; (4) the judgment has been satisfied, released or

              discharged * * *; or (5) any other reason justifying relief from the

              judgment. The motion shall be made within a reasonable time, and

              for reasons (1), (2) and (3) not more than one year after the

              judgment, order or proceeding was entered or taken.

       {¶10} Thus, Civ.R. 60(B) provides parties with an equitable remedy requiring a

court to revisit a final judgment and possibly afford relief from that judgment when in the

interest of justice. In re Edgell, 11th Dist. No. 2009-L-065, 2010-Ohio-6435, ¶52. It is a

curative rule which is to be liberally construed with the focus of reaching a just result.


                                             3
Hiener v. Moretti, 11th Dist. No. 2009-A-0001, 2009-Ohio-5060, ¶18. “Moreover, Civ.R.

60(B) has been viewed as a mechanism to create a balance between the need for

finality and the need for ‘fair and equitable decisions based upon full and accurate

information.’” Id., quoting In re Whitman, 81 Ohio St.3d 239, 242 (1998). However,

Civ.R. 60(B) relief is not to be used as a substitute for a direct appeal. Doe v. Trumbull

Cty. Children Services Bd., 28 Ohio St.3d 128 (1986), paragraph two of the syllabus.

See Am. Express Bank, FSB v. Waller, 11th Dist. No. 2011-L-047, 2012-Ohio-3117, ¶14

(“[an appellant] cannot, however, after the opportunity for direct appellate review has

passed, use Civ.R. 60(B) as a means of indirect entry into appellate review”).

      {¶11} Whether relief should be granted under a Civ.R. 60(B) motion is a

determination entrusted to the sound discretion of the trial court. In re Whitman, supra,

242. As such, the standard of review is whether the trial court abused its discretion. Id.

      {¶12} The Ohio Supreme Court has set forth a three-prong test which the

movant must meet to prevail on a Civ.R. 60(B) motion. First, the motion must be timely,

i.e., not more than one year after the judgment or order was entered where the grounds

of relief are Civ.R. 60(B)(1)-(3); otherwise, the motion must be made within a

reasonable time. Second, the party must be entitled to relief based on one of the

reasons set forth in Civ.R. 60(B)(1)-(5).       Third, the party must establish it has a

meritorious defense or claim to present in the event relief is granted. GTE Automatic

Elec. v. ARC Industries, 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. A

party must satisfy each prong to be entitled to relief. KMV V Ltd. v. Debolt, 11th Dist.

No. 2010-P-0032, 2011-Ohio-525, ¶24. If one prong is not satisfied, the entire motion

must be overruled. Id., quoting Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20

(1988).


                                            4
       {¶13} Appellants’ Civ.R. 60(B) motion challenged the prior default judgment on

the grounds appellee had no interest in the note or mortgage and therefore could not

bring the action.

       {¶14} A brief history of the law in this area is warranted given that the issue of

standing in the context of a mortgage foreclosure action has developed significantly

since the parties filed their briefs in this appeal. Previously, the Ohio Supreme Court, in

the plurality opinion of State ex rel. Jones v. Suster, 84 Ohio St.3d 70 (1998), indicated

that standing is not jurisdictional, explaining that, pursuant to Civ.R. 17, “lack of standing

may be cured by substituting the proper party so that a court otherwise having subject

matter jurisdiction may proceed to adjudicate the matter.” Id. at 77. Relying on this

proposition, this court held standing to not be jurisdictional, but rather an affirmative

defense that can be waived if not timely asserted. Aurora Loan Servs., LLC v. Cart,

11th Dist. No. 2009-A-0026, 2010-Ohio-1157; Waterfall Victoria Master Fund Ltd. v.

Yeager, 11th Dist. No. 2011-L-025, 2012-Ohio-124; Everhome Mtge. Co. v. Behrens,

11th Dist. No. 2011-L-128, 2012-Ohio-1454; Bank of New York Mellon Trust Co., N.A. v.

Shaffer, 11th Dist. No. 2011-G-3051, 2012-Ohio-3638.

       {¶15} After the parties filed their briefs in this case, however, the Ohio Supreme

Court released Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13,

2012-Ohio-5017, wherein it criticized Jones and held that standing is jurisdictional. Id.

at ¶22 & ¶29. As it is a jurisdictional requirement, the Supreme Court concluded that

standing must be determined as of the commencement of the suit. Id. at ¶24. It further

emphasized that Civ.R. 17(A), requiring actions to be prosecuted in the name of the real

party in interest, does not address standing but instead merely concerns proper party

joinder.   Id. at ¶33.   Thus, “a lack of standing at the outset of litigation cannot


                                              5
[subsequently] be cured by receipt of an assignment of the claim or by substitution of

the real party in interest.” Id. at ¶41 (emphasis added). We recently had occasion to

evaluate the import of Schwartzwald as applied to the prior holdings of this court. In

Fed. Home Loan Mtge. Corp. v. Rufo, 11th Dist. No. 2012-A-0011, 2012-Ohio-5930, we

expressly overruled the holdings in Cart, supra; Yeager, supra; Behrens, supra; and

Shaffer, supra, to the extent they were inconsistent with Schwartzwald. Id. at ¶29.

       {¶16} Here, appellee argues that appellants are barred by res judicata because

they previously argued this matter before this court in Yeager, supra. This is something

of a procedural double-edged sword for appellants. In recognizing this court’s previous

decision in Yeager, appellants go to great pains to characterize their argument as not

relating to standing or “the correctness of the assignment,” but rather appellee’s

“authority to act” to foreclose upon the real property. However, if we were to accept this

characterization, likely made in an effort to avoid the holding in Yeager, then appellants’

argument would indeed be barred by res judicata because this is an argument that

could have and should have been raised in their direct appeal.           Rather, we find

appellants are raising the issue of standing, as they contend appellee had no interest in

the note or mortgage and therefore had no authority to bring the action. As set forth

above, the law has changed, and following the dictates of the Ohio Supreme Court, we

now hold standing to be a jurisdictional requirement. See Rufo, supra. As the lack of

jurisdiction is an issue that cannot be waived and may be raised at any time, res

judicata does not bar the arguments before this court. Byard v. Byler, 74 Ohio St.3d

294, 296 (1996); see also Mulby v. Poptic, 8th Dist. No. 98324, 2012-Ohio-5731, ¶10.

As this court’s previous decision in Yeager was released before Schwartzwald and

overruled in part in Rufo, the law-of-the-case doctrine similarly does not bar us from


                                            6
considering this argument. See Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769,

¶15.

       {¶17} Turning, then, to the arguments advanced by appellants in this present

appeal, and in accord with our decision in Rufo, ¶30, appellee was “required to have an

interest in the note or mortgage when it filed this action in order to have standing to

invoke the jurisdiction of the trial court.” The record indicates the mortgage was indeed

assigned prior to the initiation of the action, a copy of which was attached to the

complaint. The notarized assignment instrument attached to the complaint states that

Deutsche Bank National Trust Company, as trustee for the registered holders of

Soundview Home Loan Trust 2006, transferred the mortgage of the subject parcel to

appellee.

       {¶18} Appellants contend that the promissory note never transferred from

Deutsche Bank National Trust Company to appellee, and therefore appellee has no

interest in either the note or the mortgage. In support, appellants argue none of the

allonges attached to the note mention Deutsche Bank National Trust Company.

However, as this court has held previously, the assignment of the mortgage, though not

containing an express transfer of the note, was sufficient to transfer both the mortgage

and the note. Rufo, ¶44.

       {¶19} As appellee provided documentary evidence that it held the mortgage at

the time it filed the complaint, it presumptively established it had standing to bring this

foreclosure against appellants.

       {¶20} Appellants exhaust the remainder of their argument by attacking the

validity of the assignment. Appellants broadly contend the mortgage assignment to

appellee was invalid because the assignment was not transferred in accord with the


                                            7
terms of the Pooling and Service Agreement of Deutsche Bank National Trust

Company. First, appellants point to no Ohio authority, nor could any be located, which

states the failure to follow the terms of a Pooling and Service Agreement renders an

assignment to a subsequent assignee, who was not involved in the agreement, invalid

such that the assignee has no standing to enforce the otherwise valid interests in the

assignment. Even if such a failure was established, we cannot say it left the trial court

without jurisdiction to proceed with the foreclosure. Standing in the name of appellee

was established by what appears to be a valid assignment. If there was any prior defect

in the chain of acquisition of the assignment, that is a defense that must have been

timely established at the trial court. Therefore, insomuch as this issue does not affect

appellee’s standing to bring the suit and invoke the jurisdiction of the trial court, it is

barred by res judicata because it is an argument that should have and could have been

previously raised.

       {¶21} In addition, appellants lack standing to make this argument. Recently, the

Eighth Appellate District, in a post-Schwartzwald decision, addressed the identical

argument. In Deutsche Bank Natl. Trust Co. v. Rudolph, 8th Dist. No. 98383, 2012-

Ohio-6141, ¶24, the Eighth District was also faced with the argument that a mortgagee

was, in fact, not the holder of the mortgage because the transfer occurred in violation of

a Pooling and Service Agreement. The court concluded that the appellant had no

standing to raise such an argument. Id. The court explained: “[W]hen 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 ¶25. In so

holding, the Eighth District relied on its prior ruling in Bank of New York Mellon Trust Co.


                                             8
v. Unger, 8th Dist. No. 97315, 2012-Ohio-1950, ¶35, which adopted Bridge v. Aames

Capital Corp., 2010 U.S. Dist. LEXIS 103154 (N.D.Ohio 2010) (“a debtor may not

challenge an assignment between an assignor and assignee”).

      {¶22} These rulings are based on the recognition 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 ¶25; see also Kapila v.

Atlantic Mtge. & Invest. Corp., 184 F.3d 1335, 1338 (11th Cir.1999). (“[A] subsequent

assignment of the mortgagee’s interest * * * does not change the nature of the interest

of the mortgagor or someone claiming under him.”) Accordingly, the Eighth District

concluded that “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 [Pooling and Service Agreement] or its own Indenture Agreement.” Id. at ¶26.

      {¶23} Similarly here, we are faced with the allegation that an entity prior to

appellee did not follow the Pooling and Service Agreement in transferring the mortgage,

and consequentially, appellee never received a valid assignment. We find the Eighth

District’s holdings in Rudolph and Unger to be persuasive. As was the case in Rudolph

and Unger, the mortgage assignment here did not alter appellants’ obligations under the

note or mortgage. Appellee filed the foreclosure complaint based on appellants’ default

under the note and mortgage, not because of the mortgage assignments. Rudolph,

¶26; Ugner, ¶35; see also LSF6 Mercury REO Invs. Trust Series 2008-1 v. Locke, 10th

Dist No. 11AP-757, 2012-Ohio-4499, ¶29. (“[A]ppellants, in the present case, lacked

standing to challenge the validity of the assignment of the note and mortgage from

Deutsche to LSF6.”) Appellants therefore do not have standing to make this argument.


                                          9
         {¶24} As a result of the foregoing, appellants are unable to demonstrate they

have a meritorious defense or claim to raise if relief is granted pursuant to the above-

framed GTE Automatic test. We therefore cannot conclude the trial court abused its

discretion in denying the motion.

         {¶25} As we determine the trial court did not err in denying appellants’ Civ.R.

60(B) motion for relief from default judgment, we need not address the other issues

outlined under appellants’ sole assignment of error, specifically whether the matter has

been rendered moot by the confirmation of the sheriff’s sale such that no meaningful

relief can be granted.

         {¶26} Accordingly, appellants’ sole assignment of error is without merit.



DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


                                  ____________________


DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.

         {¶27} I concur with the majority’s decision to affirm the judgment of the lower

court.    I write separately because the merits of the appellants’ argument related to

standing should not be reached, since it was barred by res judicata.

         {¶28} In the present matter, the majority concludes that, although the appellants

attempt to frame the argument in a different light, the issue raised in their Civ.R. 60(B)

motion relates to standing, since they contend that the appellee had no interest in the

note or mortgage and no authority to bring the action. I agree. However, the majority

further holds that the standing issue is not barred by res judicata, since standing is


                                             10
jurisdictional and, therefore, “is an issue that cannot be waived and may be raised at

any time.” Supra at ¶ 16. This is where our opinions diverge.

       {¶29} Regarding the issue of res judicata and the appropriate use of a Civ.R.

60(B) motion, this court has held that a “Civ.R. 60(B) motion is not a substitute for an

appeal.” Blaine v. Southington Local Schools, 11th Dist. No. 2002-T-0180, 2003-Ohio-

6238, ¶ 8, citing Blasco v. Mislik, 69 Ohio St.2d 684, 686, 433 N.E.2d 612 (1982).

Moreover, “a Civ.R. 60(B) motion cannot be employed as a means of contesting the

merits of the underlying judgment.” Natl. City Bank v. Graham, 11th Dist. No. 2010-L-

047, 2011-Ohio-2584, ¶ 20.

       {¶30} Generally, this court would find that the standing argument should have

been raised in the prior appeal before this court and cannot be considered, since it

relates to the merits of the underlying judgment in the lower court. In fact, in the prior

appeal to this court, the issue of standing was raised by the appellants. Waterfall

Victoria Master Fund Ltd. v. Yeager, 11th Dist. No. 2011-L-025, 2012-Ohio-124, ¶ 10.

Therefore, the appellants should not be able to pursue such a claim under a Civ.R.

60(B) motion, or such a motion could become a tool to simply avoid an unfavorable

decision. See Streetsboro v. Encore Homes, 11th Dist. No. 2002-P-0018, 2003-Ohio-

2109, ¶ 11 (“the fact remains that the same issues and underlying facts were raised and

ruled upon by both this court and the court below” and, therefore, a Civ.R. 60(B) motion

to vacate was not a proper remedy). The majority holds, however, that res judicata

cannot bar this court from addressing the merits of the Civ.R. 60(B) motion, since the

issue of standing is jurisdictional and can be raised at any time.          Based on this

conclusion, it is necessary to further consider whether standing is jurisdictional.




                                             11
       {¶31} Any conclusion that standing is jurisdictional under Schwartzwald, i.e., that

a case must be dismissed when a plaintiff does not have standing at the time the action

was filed, but becomes the holder of the note or mortgage at a future time during the

proceedings, should be rejected.        As explained in my recent dissent in Self Help

Ventures Fund v. Jones, 11th Dist. No. 2012-A-0014, 2013-Ohio-868, a plaintiff should

be able to establish standing after the filing of a lawsuit, and, therefore, standing should

not be considered jurisdictional or necessary to initiate a claim. This is true for multiple

reasons, including that the inability to cure a standing deficiency is contrary to the

interests of judicial economy and efficiency. Painesville City Local Schools Bd. of Edn.

v. Ohio Assn. of Pub. School Emps., 11th Dist. No. 2005-L-100, 2006-Ohio-3645, ¶ 15

(emphasizing the importance of speedy resolutions to conflicts to foster judicial

economy by “unburdening crowded court dockets”) (citation omitted); State v. Wamsley,

117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶ 28 (finding that the court’s

holding should “foster rather than thwart judicial economy”); F.O.E., Inc. v. Energex Oil

& Gas Corp., 4th Dist. No. 86 CA 19, 1987 Ohio App. LEXIS 9233, *6 (Sept. 29, 1987)

(noting that certain civil rules serve the purposes of “convenience * * * speed, and

judicial economy”).     Allowing a party to obtain standing during the course of the

proceedings prevents the dismissal of the action, and the refiling of the complaint and

new responsive filings, all of which require additional consideration by the court, thereby

creating an ineffective use of court resources. This process will further extend the

amount of time required to resolve the underlying foreclosure action and prohibits the

administration of timely justice for all involved parties.

       {¶32} In addition, a holding that a standing challenge like the one raised by

appellants is not barred by res judicata would essentially allow challenges to standing to


                                              12
be raised at any time, even if the issue was not raised at trial or contested during a

previous appeal. As occurred in this case, a party could simply raise the issue of

standing at any time in the future and be permitted to argue the matter, even if a period

of several years has passed.      Such a process does not promote finality or judicial

economy.

       {¶33} As explained in Self Help, the Ohio Supreme Court has noted in the past,

in the context of Civ.R. 17 relating to real parties in interest, a lack of standing should

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

the court,” citing State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 77, 701 N.E.2d 1002

(1998). It is a logical and sensible conclusion that if an action that has not initially been

filed in the name of a party who has an interest in the litigation can be cured, a person

without standing at the time of the complaint should also be given the opportunity to

cure the defect and the court should have jurisdiction over the matter. See Kinder v.

Zuzak, 11th Dist. No. 2008-L-167, 2009-Ohio-3793, ¶ 21 (giving a plaintiff a reasonable

opportunity to cure a deficiency by stating the proper parties in interest has “the same

effect as if the action had been commenced in the name of the real party in interest”)

(citation omitted).

       {¶34} Similarly, Civ.R. 15(A) and (C) allow for amendments to the Complaint to

be made by the plaintiff after filing, including changing a party named in the Complaint.

This rule allows for a more efficient judicial process, addressing concerns similar to

those raised in the present matter. Based on the foregoing rules, amendment to the

Complaint should be permitted in foreclosure proceedings to establish the existence of

standing.




                                             13
        {¶35} Since it should be concluded that standing is not required to initially invoke

a trial court’s jurisdiction and that a party should be able to establish standing during the

course of the proceedings, I disagree with the conclusion that standing is jurisdictional.

Since standing is not jurisdictional, it is unnecessary to consider the merits of the

appellants’ claim and the matter should be dismissed purely on the basis of res

judicata.1

        {¶36} For the foregoing reasons, I respectfully concur in judgment only.

                                      ____________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

        {¶37} I would reverse and remand. I respectfully disagree that a mortgagor

faced with foreclosure should not be allowed to raise a failure of the assignment of the

note and/or mortgage between the original mortgagee, and an alleged subsequent

assignee.

        {¶38} I do believe that the cases relied on by the majority are premised upon

different facts than the case at bar. The majority cites to the decisions of the Eighth

District in Rudolph, 2012-Ohio-6141, and Unger, 2012-Ohio-1950, as well as that of the

Tenth District in Locke, 2012-Ohio-4499, for the proposition that a mortgagor lacks

standing to challenge the validity of the assignment of a note and/or mortgage. In turn,

each of these decisions relies on that of the Northern District of Ohio in Bridge v. Aames

Capital Corp., 2010 U.S. Dist. LEXIS 103154. I find this reliance misplaced.



1. The dissenting opinion misses the point, since the issue of the applicability of res judicata relates
directly to the conclusion in this concurrence that standing is not jurisdictional. The dissent’s contention
that res judicata does not attach, which is the same holding contained in the majority’s opinion, is
specifically addressed throughout this concurrence. Based on the thorough analysis in this opinion that
standing is not jurisdictional, res judicata can and should apply.


                                                    14
      {¶39} The Superior Court of New Hampshire’s analysis in Newitt v. Wells Fargo

Bank, N.A., 213-2011-CV-00173, 2011 N.H. Super. LEXIS 60 (July 14, 2011), is on

point. As that court notes, Bridge was a quiet title action, instituted by the mortgagor

against the assignee of the mortgagee, in which the burden was on the mortgagor to

establish her case, and thus not properly applied to a foreclosure action. Id. at *7-8. In

foreclosure actions, the burden to establish a prima facie case, including standing, rests

upon the mortgagee or its assignee. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-

5017, ¶20-28.

      {¶40} Second, the decision in Bridge issued before that of the Supreme Court of

Ohio in Schwartzwald. In that case, the Supreme Court made it clear that standing to

bring a foreclosure action is a matter of constitutional dimension, and that standing,

including being the valid holder of the note and/or mortgage, must be established at the

time the action is commenced. I respectfully cannot find that an assignee under an

improper or invalid assignment from a mortgagee, has such standing. In this regard, I

find the reasoning of the court in Newitt persuasive:

      {¶41} “[Wells Fargo] argues that [the Newitts] may not challenge the

assignment, and therefore Wells Fargo’s standing as the mortgagee, because RSA

479:25 allows the mortgagee or its assignee to foreclose without judicial authorization

by exercising the power of sale. Wells Fargo therefore appears to argue that at no point

must the mortgagee, when its power to foreclose is challenged, establish that it

obtained its rights to the mortgage pursuant to a valid instrument. This argument is

circular: a mortgagee may foreclose because it is the mortgagee, given that RSA

479:25 allows the mortgagee or its assignee to foreclose. Wells Fargo overlooks the

caveat that if it never obtained the mortgage, i.e. if the February 23, 2010 assignment


                                            15
was invalid, it is not the mortgagee and never qualified for the protections of RSA

479:25.   To hold otherwise would be to allow any self-proclaimed mortgagee or

assignee to foreclose on any property by invoking RSA 479:25.” Newitt at *4-5.

      {¶42} I agree.     Mortgagors should be allowed to attack the validity of an

assignment between a mortgagee and assignee: indeed, pursuant to Schwartzwald,

assignees should be required to prove they received the note and/or mortgage through

a valid assignment.

      {¶43} Finding appellants’ argument persuasive, I must respectfully disagree with

the concurring judge’s conclusion that res judicata bars this appeal. As our colleague

Judge Rice wrote recently:

      {¶44} “In Schwarzwald, the Supreme Court held that standing is required to

present a justiciable controversy and is a jurisdictional requirement. Id. at ¶21-22. The

Court held that, because standing is required to invoke the trial court’s jurisdiction,

standing is determined as of the filing of the complaint. Id. at ¶24. * * * Further,

because standing is jurisdictional, it can never be waived and may be challenged at any

time. See Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶11. * * *.

      {¶45} “This court in Rufo [2012-A-0011] held that, pursuant to Schwarzwald,

courts of common pleas have subject matter jurisdiction over justiciable matters and

that standing to sue is required to make a justiciable case. Rufo at ¶28. Thus, without

standing, a case is not justiciable and the court lacks subject-matter jurisdiction. Id.

When the trial court lacks subject-matter jurisdiction, its final judgment is void. Id. at

¶15.” (Emphasis sic.) Bank of New York Mellon Trust Co., N.A. v. Shaffer, 11th Dist.

No. 2011-G-3051, * * *Ohio * * *, ¶24-25.




                                            16
      {¶46} Res judicata does not attach to a judgment which is void ab initio. State v.

Wilson, 73 Ohio St.3d 40, 45, fn. 6 (1995). Pursuant to Schwartzwald, no justiciable

controversy exists between an assignee of a note and/or mortgage, and the mortgagor,

if the assignee does not hold the note and/or mortgage at the time the foreclosure

action is filed.    Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶20-28.

Consequently, in this case, if appellee did not have a proper assignment of the note

and/or mortgage, there was no justiciable controversy between the parties, the trial

court lacked subject matter jurisdiction, and res judicata never attached.

      {¶47} I respectfully dissent.




                                            17
