IN TH;E; SUPREME COURT OF OHIO MEMORANDUM IN SUPPORT OF JURISDICTION OF PLAINTIFF-APPELLANT U.S. BANK, NATIONAL ASSOCIATION

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1 IN TH;E; SUPREME COURT OF OHIO U.S. BANK, N.A., Plaintiff-Appellant, V. MICHAEL COOPER, et ttl., Defendants-Appellees. * x {.f 2 * On Appeal from the Medina County * Court of Appeals, Ninth Appellate * District * Court of Appeals * Case No. 12CA0084-M X 7C * MEMORANDUM IN SUPPORT OF JURISDICTION OF PLAINTIFF-APPELLANT U.S. BANK, NATIONAL ASSOCIATION Scott A. King (# ) (COUNSEL OF RECORD) Scott. King@ Thompson7line, com Terry W. Posey, Jr. (# ) Terry.PoseyVThompsonHine, cofn "t'hompson HINE LLP Innovation Drive Suite 400 Miamisburg, Ohio Telephone: (937) Facsimile: (937) AttoNneys.for PZtrintiff=Appellant I^:S. Bank, ivutional Association JohnC.Oberholtzer(# ) counselca,)medinalaw,eom OBERHOLTZER, FILOUS & PERRICO, LPA 39 Public Square, Suite 201 Medina, Ohio Telepllone: (330) Facsimile: (330) Attorney.for Def'endants-Appellees Michael A. and Tamyny R. Cooper :.a.;,^3s:^ ; r si-.f, r s ^s^`;j^%j's^y' `;%^^r`^^ ti f'. ^EEG

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS IS A CASE OF GREAT GENERAL INTk+JREST s....o....,...1 STATEMENT OF THE CASE AND FACTS Statement of the Case...,...2 Statement of the Facts ,... 3 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW... 5 Proposition of Law No. 1 A defendant who participates in a court action must raise any defects in the plaz ntiff's standing during the pendency of the action or on direct appeal froln the adverse judgment CONCLUSION ,...,..., CERTIFICATE OF SERVICE Page APPENDIX Apax. Page Decision and Journal Entry, Ninth District Court of Appeals, filed January 13, A-]

3 EXPLANATION OF WHY THIS IS A CASE OF GREAT GENERAL INTEREST In Fed Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Uhio-5017, 979 N.E.2d 1214, this Court held that a foreclosure plaintiff could not cure a lack of standing with a post-complaint assignment of mortgage. Schwartzn,ald was a direct appeal by the defendant from an adverse summary judgment. In Bank ofanzet ica, N.A. v. Kuchta, Case No , this Court accepted jurisdiction to resolve a certified conflict as to the application of Schwartzwald to post judgment motions: "W'hen a defendant fails to appeal from a trial court's judgment, can a lack of standing be raised as a part of a motion for relief from judgment?" In Kuchta, the defendant raised the isstie of standing during the case, lost, did not appeal but then raised standing in a post-judgment motion. This decision presents a related but different issue from the certified conflict in Kuchta. In both this case andin Kuchta, the defendants participated in the action. But unlike Kuchta, the defendants never raised the issue of standing prior to judgment. Instead, Defendants/Appellees Michael and Tammy Cooper did not oppose the Motion for Stammary Judgment, consented to the entry granting judgment, and then years later filed a Civ.R. 60(B) Motion for Relief from Judgment assez-ting that Plaintiff-Appellant U.S. Bank, N.A. ("U.S. Bank") committed :fraud in the filing of a summary judgment affdavit. The Coopers' 60(B) Motion said nothing about standing. As in Kuchta, the Trial Court denied the Motion. As in Kuchta, the Ninth District Court of Appeals reversed. U. & Bank v. Cooper, 9th Dist. No. 12CA0084-M, 2014-Ohio-61 (the "Opinion"). In the Opinion, the Ninth District not only interpreted,s'chwantzwald to permit defendants to raise standing in a post judgment motion, the Ninth District held that standing can be examined in an appeal of a post judgment motion which did not itselfraise the standing issue. The Opinion reasoned that &hwurtzwald held that

4 standing is a component of subject matter jurisdiction, that subject matter jurisdiction can be challenged at any time, and, therefore, standing could be reviewed at any time by any court, even if years have passed since the judgment was entered, and even if the issue was never raised in the trial court. "I`he District Courts of Appeal are split on when standing under Schwar tzvr%ald must be raised. The Fifth, Tenth, and Eleventh Districts have all recently held that standing is a concept distinct from subject matter jurisdiction, and cannot be raised in a post judgment motion. Wells Fargo Bank, N.A. v. Elliott, 5th Dist. No. 13-CAE , 2013-Ohio-3690; Deutsche Bank Natl. Trust Coa v. Finney, IOth Dist. No. 13AP-198, 2013-Ohio-4884; Deutsche BankNatl. Trust Co, v. Santisi, 1 Ith Dist. No T-0048, 2013-Ohio-5848; HSBC Bank USA, NA. v. Bailey, 1 Ith Dist. No T-0086, 2014-Ohio-246. As detailed below, the Ninth District has certified a conflict between its Opinion and these cases. The conflicting interpretations of S'chtivartzwald are growing. This case presents the Court with opportunity to resolve that conflict, and questions of great general interest. STATEMENT OF THE CASE ANl) FACTS Statement of the Case On June 8, 2007, U.S. Bank filed a Complaint seeking judgment on a promissory note ("Note") executed by Michael Cooper, which was secured by a mortgage executed by both Coopers. The Coopers answered the Complaint, but did not raise the standing issue. On Septeznber 14, 2007, U.S. Bank filed a Motion for Summary Judgment. In response, the Coopers sought mediation, which was unsuccessful. The Coopers did not respond to the Motion for Summary Judgment and instead their counsel consented to a decree of foreclostire ("Judgment"), which the Trial Court entered on June 7,

5 More than two years later, on November 5, 2010, the Coopers filed a Motion for Relief from Judgment, arguing that the Judgment should be vacated based on fraud in the affidavit filed as part of the Motion for Summary Judgment. The Motion for Relief from Judgment did not raise the issue of standing. On July 5, 2012, the Magistrate denied the Motion, and on September 7, 2012, the Trial Court adopted that decision. The Coopers appealed, and for the first time, raised the issue of standing. On January 13, 2014, the Ninth District reversed, and held that Schwcrrtzwalcl required the five year old judgment be vacated, and the case dismissed. Opinion,7. On January 23, 2014, U.S. Bank filed a Motion to Certify a Conflict. On February 25, 2014, the Ninth District certified a conflict between the Opinion and the decisions in PNC I3ank, 1lratl. Assn. v. Botts, 10th Dist. No. 12AP-256, 2012-Ohio-5383, Finney, Elliott, and Sexntisi on the following questions: appeal. Does a lack of standing deprive the trial court of subject matter jurisdiction? 2. May a defendant use a lack of standing as the basis of a common law motion to vacate? U.S. Bank has filed the certified conflict case simultaneously with this jurisdictional Statement of the Facts On May 27, 2005, Michael Cooper executed a Note in favor of Manhattan Mortgage Group, Ltd. in the aniount of $224;100. To secure repayment of the Note, the Coopers executed a Mortgage against 8521 Wooster Pike Road, Seville, Ohio ("Property"). 13eginning in March 2007, Michael Cooper stopped making payments as due and required. On June 8, 2007, U.S. Bank filed the Complaint. Attached to the Complaint were a copy of the original mortgage, a property description for the Property, and a notice of federal tax -3-

6 lien. The Note was not attached, and the Complaint asserted that a copy was "unavailable at this time." On June 11, 2007, the Mortgage and Note were assigned to U.S. Bank. The Coopers filed an Answer which did not assert standing as a defense. U.S. Bank filed a Motion for Summary Judgment, supported by an affidavit. The affidavit authenticated a copy of the Note and a series of allonges to the Note. U.S. Bank then circulated a draft of the Judgment, and the Coopers' counsel consented to its entry. The Coopers did not appeal. More than two years later, on November 5, 2010, the Coopers filed a Motion for Relief from Judgmexit, contending that the affidavit was "robo-signed." The Motion said nothing about standing. Prior to the hearing on the Motion, the Coopers abandoned robo-signing as a theory, and instead contended that the Judgment should be vacated based on a settlement between various governmental entities and the mortgage loan servicer for U.S. Bank. On July 5, 2012, the Magistrate entered a decision denying the Motion. On September 7, 2012, the Trial Court adopted the decision. The Coopers appealed. In their brief before the Ninth District, for the fif.rt tir me, the Coopers contended that U.S. Bank lacked standing to file the Complaint. In its Opinion, the Ninth District held that under Schwartzwald "standing is a jurisdictional matter, and therefore, must be established at the time the complaint is filed." Qpinion,',113. The Ninth District also held that because standing is jurisdictional, a Civ.R. 60(B) Motion for Relief was inappropriate, and that it would consider the matter as a comrnon law motion to vacate. Opinion, 10. The Ninth District then held that because the Assignment of Mortgage was executed after the filing of the Complaint, and the allonges were undated and -4-

7 without reference as to when U.S. Bank became a party in possession of the Note, U.S. Bank had failed to prove that it had standing under the rules announced in this Court's decision in 1;chwartztiroald (a decision issued more than four years after the entry of the Judgment in this case). Opinion, ^it 14-I5. The Ninth District vacated the five year old Judgment, and ordered the Trial Court to dismiss the Complaint without prejudice. Id., 15. ARGUMENT IN SUPPORT OF PROPOSITION OFLAVE' PIZ.OI'OSITI(JN OF LAW NO. I A defendant who participates in a court action must raise any defects in the plaintiff's standing during the pendency of the action or on direct appeal from the adverse judgment. In Schwaf tzwald, the borrowers asserted that the plaintiff did not have standing at the time the complaint was filed, and could not cure that lack of standing with a post-tiling assignment. Schtiti,artzwald, 39. The trial court entered summary judgment in favor of the creditor and the borrower appealed. Id., ^ 14. The Second District Court of Appeals affirmed, but this Court reversed, holding that any defect in standing could not be cured by a postcomplaint assignment. Id., 15. Schlvartnvald was a direct appeal from the trial court's entry of summary judgment. T'his Court therefore did not address whether a standing issue could be raised in a post-judgment motion. Following Schwaf izwald, lower courts have struggled with its application to postjudgment motions. In Kuchta, the defendants participated in the action and raised standing as a defense in the answer. The defendants lost a motion for summary judgment, did not appeal, and then a few months later filed a Civ.R. 60(I3) Motion again raising standing. Even though the issue had actually been litigated in the plaintiff s summary judgment motion during the pendency of the proceedings, the Ninth District held that standing could be raised as a "meritorious defense" in a post-judgment motion brought under Civ.R. 60(B). This Court accepted jurisdiction to resolve a certified conflict in Kuchta, and that matter awaits decision. -5-

8 This case presents issues similar but different than the questions directly posed by Ku,chta; Like Kuchta, the defendants in this case actively participated in the litigation prior to judgment. However, unlike Kuchia, the defendants in this case never raised the issue of standing during the pendency of the proceeding, or, for that matter, at any time in the Trial Court. The Ninth District nonetheless held that a Schwartzwald standing issue could be raised at any time, including for the first time on appeal of a decision denying a motion for relief from judgment. The Opinion not only conflicts with the decisions which led to the certified question in Kuchta, as recognized by the Ninth District in its decision granting the Motion to Certify a Conflict, it also conflicts with additional decisions from the Fifth, Tenth, and Eleventh Districts. Moreover, it conflicts with this Court's prior decisions, federal authority and law as recommended by the American Law Institute. Tenth District In 13otts (certified as a conflict with both Kuchta and this case), the defendant defaulted and did not appeai Ohio-5383, 4. The defendant then filed a motion for relief from judgment under Civ.R. 60(B), claiming that the plaintiff lacked standing to initiate the action, and a motion to dismiss under Civ.R. 12(B)(1), arguing that a lack of standing deprived the trial court of subject matter jurisdiction. Id,5. The trial court denied both motions, finding that standing was not grounds for relief under Civ.R. 60(B)(3) and that the defendant was not entitled to an evidentiary hearing. Id.,6. The Tenth I7istrict agreed, finding that a lack of standing at the initiation of the complaint "is a matter that should have been presented as a claim or defense by Botts in the underlying foreclosure action." Id, 16. The "I'enth District found that "Botts was not prevented from fully and fairly presenting [this] defense due to any fraud by" the plaintiff, as required by Civ.R. -6-

9 60(B)(3), and, therefore, the lack of standing was not grounds for relief. Id., 11 18, The Tenth District went on to hold that a lack of standing did not deprive a court of subject matter jurisdiction, and that Schyvartzzwald did not impact this result. Id., ^, 23. Since Botts, the Tenth District has expanded on this rationale. In Finney (again, certified as a conflict with this case), the Tenth District characterized the issue of standing as a component of justiciability, and held that justiciability was a separate jurisdictional concept from subject matter jurisdiction. Finney, 2013-Ohio-4884, T The 'I'enth District then held that any defect in standing did not make the underlying judgment void and reaffirmed Botts. Id. Because the defendant had not raised the standing issue in either the trial court or in a direct appeal from the original judgment, the borrower could not do so in a post-judgment motion. The Tenth District expressly noted that the Ninth District disagreed with this analysis. Id. Fifth District The Fifth District also disagrees with the Ninth District. In Elliott, the defendant defaulted and did not appeal Ohio-3690, 4. Instead, after the appeal time had run, the defendant filed a Motion to Dismiss under Civ.R. 12(B)(1). Id., T 5. The trial court denied the motion. Icl The Fifth District afflrmed. The Fifth District reasoned that standing is "separate frorn therequirerncnt of subject matter jurisdiction" and that "there is a clear distinction between the requirements of subject matterjurisdiction and standing." 2013-Ohio-3690, fi The 1'ifth District held that a"iack of standing does not deprive the court of subject matter jurisdiction and ` The Tenth District has certified a conflict between Finney and another Ninth District case, Quantum Servicing Corp: v. Haugabrook, 9th Dist. No, 26542, 2013-Ohio-3516, that is pending before the Court as Case No The Tenth District certified two questions, relating to whether standing affects subject matter jurisdiction, and whether a defect in standing renders a judgment void or voidable. A discretionary appeal of Finney is pending as Case No

10 thus lack of standing" is not an appropriate basis for collateral attack. Icl.,!j 13. The Fifth District noted that in Schivartzzwald, this Court stated that standing may be raised "at any time during the pendency of the proceedings" (Ici., T 14), but that under Country'Wia'e I-Iome Loans Servicing, L.P. v. Nichpor, 136 Ohio St.3d 55, 2013-Ohio-2083, 990 N.E.2d 565, once the court enters a decree of foreclosure, the matter is no longer "pending" and thus the underlying judgment is no longer subject to an attack for a lack of standing Ohio-3690,14.` The Ninth District certified a conflict between its Opinion in this case and Elliott. Eleventh District In Santisi, the defendant defaulted ai-id did not appeal Ohio-5848, ^,, 7. ltistead, the defendant filed a motion to vacate more than four years after judgment. Id.,14. The trial court denied the motion. Id., 15. The Eleventh District afflrined. The Eleventh District also held that any challenge to standing was required to be raised during the proceedings or in a direct appeal from the judgment Ohio-5848,^! 30. The Eleventh District reasoned that standing did not deprive the trial court of subject matter jurisdiction, and therefore, any error in standing only made the judgment voidable, not void. Id,37. The Eleventh District held that any other rule would make subject judgments to perpetual attack:, Id., 38. The Ninth District acknowledged that Santisi was also in conflict with the Opinion when it certified the conflict. In Bailey, after raising the standing issue in the answer, the defendant consented to judgment after two years of litigation Ohio-246, ^ The defendant then filed a series of post judginent motions for relief from the judgment and then to vacate the judgment. Acknowledging Santisi and the 'Tenth District's analysis in Finney, the Eleventh District held ^ This Coui-t declined jurisdiction over a discretionary appeal , Case Annoiancenienis, 2014-Ohio

11 that once the standing issue was adversely determined and not directly appealed, the defendant could not later challenge standing through a collateral attack. Id.., ^(T Pre-Schwartzwald Precedent The decisions of the Fifth, Tenth, and Eleventh Districts not only conflict with those of the Ninth District as to when standing must be challenged, these decisions are also consistent with this Court's pre-schwartzwald precedent. In Mantho v. Board of Liquor Control, 162 Ohio St. 37, 120 N.E.2d 730 (1954), the defendant did not challenge the complaining party's capacity to invoke the jurisdiction of a court during the proceedings and did not take a direct appeal from an adverse judgment. After this Court issued a decision changing the rule underlying the lower court's prior judgment in that case, the defendant sought to set aside the lower court's judgment based on the new rule. Mantho, 162 Ohio St. at 39. This Court rejected that attempt, and held that any challenge to the ability to invoke a court's jurisdiction must be made during the proceedings or on direct appeal from the adverse judgment, and cannot be the basis of a collateral attack. Id. In Incorporated Cnnsultants v. Todd, 175 Ohio St. 425, 195 N.E.2d 788 (1964), an assignee brought suit on a note and obtained judgment. The defendant then brought a separate proceeding to collaterally attack the judgment, asserting that there was no evidence of a timely assignment. Incorporated Consultants, 175 Ohio St. at 426. This Court again held that any challenge to the plaintiff's right to enforce the obligation had to be brought during the action, and not in a collateral attack. Other Authorities The American Law Institute also takes the position that if a party enters an appearance and defends the case on any ground, then issues affecting a court's jurisdiction must be raised -9-

12 during the pendency of the case or in a direct appeal; if they are not so raised, they are forever barred. Restatement of the Law 2d,,Iudgrnents, 12, cmt. d. ("Even if the issue of subject matter jurisdiction has not been raised and determined, the judgment after becoming final should ordinarily be treated as wholly valid if the controversy has been litigated in any other respect. The principle to be applied in this situation is essentially that of claim preclusion, particularly the proposition that a judgment should be treated as resolving not only all issues actually litigated but all issues that might have been litigated.") This is also the rule followed by federal courts. Stoll v. Gottlieb, 305 U.S. 165, , 59 S. Ct. 134 ( 1938) ("every court in rendering a judgment tacitly, if not expressly, determines its jurisdiction over the parties and the subject matter."). Civil 60.44(1)(b) and 11 Wright, Miller, & Kane, Federrxl Practice and Procedure, 2862 (2012). Public policy supports this rule. If the Ninth District were correct in its holding, defendants could intentionally keep the standing issue in their "back pocket," and test the waters to see if their other defenses might prevail, Defendants would know that if their other theories were unsuccessful, they could always get a second bite at the apple on standing. Defendants could perpetuate litigation, and have the ability to attack judgments years (or even decades) later. In the Ninth District, defendants would never need to raise the standing issue in the trial court at all. This Court should accept jurisdiction to determine whether a defendant who participated in a case but did not raise the issrie of standing is barred from doing so after the appeal time expires. In doing so, the Court should clarify what impact Schwartzwald had on prior Ohio law. See, also, Moore's Federal Practice- -10-

13 CONCLUSION The Ninth District has read Schwartzwald to permit a defendant to participate in an action, lose, elect not to appeal and then attack the judgment years later. It has recognized that its decision and rationale conflict with how other District Courts of Appeal have interpreted Schwartzwald In every case in which a money judgment is sought, the piaintiff's "standing" to recover is at issue. The law has a strong interest in the finality of judgments and the rule adopted by the Ninth District ignores that interest and invites perpetual litigation. This Court should accept jurisdiction to clarify when, if ever, standing can be raised in a post-judgment motion brought by a party who appeared in the action but did not raise standing during its pendency or in a direct appeal. Respectfully submitted, Scott A. King (# ) Terry W. Posey, Jr. (# ) THOMPSON HINE LLP Innovation Drive Suite 400 1Vliamisburg, OI-I `Telephone: (937) Facsimile: (937) Scott.KinggThompsonhine.com Terry. Posey(a' Thompsonhine.cozn Counsel fbr Plainti ff-a,ppellant U. S. Bank, 11-'atianal Association -1l-

14 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served upon the following via, regular, U.S. Mail, on this 26th day of February, 2014, John C. Oberholtzer, Esq. Matthew G. Bruce, Esq. Oberholtzer & Filous, LPA 39 Public Square Suite 201 Medina, OI-I Counsel -12-

15 8r y ^'!` STATE OF OHIO COUNTY OF MEDINA U.S. BANK, N.A. Appellee PpEAN$fHE COURT OF APPEALS INTH JUDICIAL DISTRICT AfJ N; 3 } r f Orj1'i f3 MEDt,vq rtic.a. No. 12CA0084-M Cr F`(PF v. APPEAL FROM JUDGMENT ENTERED IN THE MICHAEL A. COOPER, et al. COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellants CASE No. 07CIV0903 Dated: January 13, 2014 DECISION AND JOURNAL ENTRY MOORE, Presiding Judge. { I.} Appellants, Michael and Tamrny Cooper ("the Coopers"), appeal from the judgment of the Medina County Court of Common Pleas, This Court reverses and remands to the trial court for the complaint to be dismissed. I. 112} On May 27, 2005, Mr. Cooper executed a pronussory note for $224, 100 in favor of Manhattan Mortgage Group, LTD for the property located at 8521 Wooster Pike Road, Seville, Ohio The note was secured by a mortgage on the property in favor of Mortgage Electronic Registration Systems, Inc. ("MERS"). {$3) On June 8, 2007, U.S. Bank, National Association as Trustee ("U.S. Bank ') filed a complaint for foreclosure alleging that the Coopers were in default under the terms of their note and mortgage in the amount of $220, U.S. Bank attached the following exhibits to its complaint: (1) a copy of the original mortgage initialed and signed by the Coopers, (2) a A-1

16 2 I property description for 8521 Wooster Pike Road, and (3) a notice of a federal tax lien on the property. U.S. Bank did not attach a copy of the note to its complaint, and indicated that although it is the holder and owner of the note, a copy of the note "is unavailable at this time." In August of 2007, the Coopers filed an answer, and in September of 2007, U.S. Bank filed a motion for summary judgment. {14} In its motion for summary judgment, U.S. Bank alleged that because of the Coopers' default, it "had a right to accelerate and call due the entire balance on the Note," In support, U.S. Bank attached: (1) the affidavit of China Brown, vice president of loan documentation for Wells Fargo Bank, N.A., as servicing agent of U.S. Bank, (2) a copy of the May 27, 2005 note to Manhattan Mortgage Group, LTD, signed by Michael Cooper, (3) an undated note allonge from Manhattan Mortgage Group, LTD, to Mortgage Lenders Network, USA Inc., (4) an undated note allonge from Mortgage Lenders Network, USA Inc., to Emax Financial Group, LLC, (5) an undated note allonge from Emax Financial Group, LLC, to Residential Funding Company, LLC fka Residential Funding Corporation, (6) an undated note allonge from Residential Funding Corporation, to U.S. Bank, with incorrect information as to: (a) the date of the original note, (b) the original amount due, and (c) the name of the borrower, and (7) a copy of the May 27, 2005 mortgage to Manhattan Mortgage Group, LTD. (1[5} Prior to ruling on U.S. Bank's motion for summary judgment, the trial court referred the matter to mediation. After an unsuccessful attempt to settle the case, the trial court scheduled a non-oral motion hearing in May of Additionally, U.S. Bank filed: (1) a motion for default judgment against those defendants who failed to answer, and (2) a notice of assignment of the mortgage from 1VfERS to U.S. Bank dated June 11, The Coopers did not oppose the motion for summary judgment, and a proposed decree of foreclosure circulated A-2

17 3 among the represented parties. The record indicates that Attorney A. Michelle Jackson authorized her signature on behalf of the Coopers. "le all other signatures are dated for June of 2008, Ms. Jackson's signature is dated for June of 2006, and the consent entry is time-starraped July 7, The Coopers did not appeal from this order. {16} On November 5, 20I0, the Coopers filed a motion for relief from judgment pursuant to Civ.R.. 60(B). A magistrate of the trial court denied the Coopers" motion because it failed to meet the requirements in GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 phio St.2d 146 (1976). However, the magistrate also indicated that: In reality, summary judgment was granted because the [Coopers] effectively consented to the decree in foreclosure. The [Coopers] never responded in opposition to [U.". Bank's] motion for summary judgment despite the fact it was scheduled for non-oral hearing on two different occasions. [U.S. Bank's] motion for summary judgment was riddled with defects that generally would have precluded the granting of summary judgment by this [c]ouri unless the parties agreed otherwise. For example, without even addressing the potential robo-signor issue, the affidavit of China Brown was still defective. None of the allonges first attached to the motion for summary judgment were properly authenticated by the affidavit. The mortgage and note contain acceleration provisions. Compliance with the acceleration provisions was never mentioned in the affidavit. In fact, the acceleration clauses, as conditions precedent, were not even mentioned in the complaint. The assignment of mortgage was not filed until over 30 days [after] the matter for non-oral summary judgment decision. (Emphasis added.) The Coopers filed objections to the magistrate's decision, statang: (1) the motion for summary judgment was granted in error, (2) the Coopers were not aware of U.S. Bank's fraudulent activity until October 2010, and (3) Wells Fargo, the servicer of the loan, entered into a consent judgment entry in federal court, which should be followed in the instant matter. The trial court overruled the objections and adopted the magistrate's decision. { 7} The Coopers filed a timely notice of appeal, setting forth two assignments of error for our consideration. A-3

18 4 II. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN AFFIRMING AND ADOPTING THE MAGISTRATE'S DECISION FILED ON JULY 5, 2012, DENYING THE [COOPERS'] MOTION FOR RELIEF [FROM] JUDGMENT, BECAUSE [U.S. BANK] IS NOT A REAL PARTY IN INTEREST AND LACKED STANDING TO INVOKE THE JURISDICTION OF THE COURT. {$8} In their first assignment of error, the Coopers argue that, pursuant to Federal Horrie Loan Mige. Corp. v. Schtiuartzwrxld, 134 Ohio St.3d 13, 2012-Ohio-5017 (2012), U.S. Bank did not have standing to file its foreclosure complaint. The Coopers further argue that the trial court did not have subject matter jurisdiction over the foreclosure action because U.S, Bank did not have an interest in the mortgage at the time of the commencement of the lawsuit. {1[9} Because the Coopers allege that U.S. Bank did not have standing to file the foreclosure complaint, and that the trial court lacked jurisdiction over the matter, they present a legal question that this Court reviews de novo. See Quantum Servicing Corp. v. Haugabrook, 9th Dist. Summit No , 2013-Ohio-3 516, 17, citing Thomas v. Bldg. Dept. o,f'barberton, 9th Dist. Summit No , 2011-Ohio-4493, 16. See also FarstlLterat Bank v. Wood, 9th Dist. Lorain No. 09CA009586, 2010-Ohio-1339, 5, quoting Eisel v. Austin, 9th Dist, Lorain No. 09CA009653, 2010-Ohio-$16,18 ("[A] [c]hallenge[] to a*** court's jurisdiction present[s] [a] question[ ] of law and [is] reviewed by this Court de novo.") { 1{f} Further, "[a] party should not file a Civ.R. 60(B) motion for relief from judgment in order to have the void judgment vacated or set aside, since Civ.R. 60(B) motions apply only to judgments that are voidable rather than void." (intemal quotations and citations omitted.) State ex rel. DeWine v Group, L.P., 9th Dist. Summit No , 2012-Ohio-3339, $ 7. "This is because the power to vacate a void judgment does not arise from Civ.R. 60(B), but rather, from A-4

19 5 an inherent power possessed by the courts in this state." Id., citing Patton v. Diemer, 35 Ohio St.3d 68 (1988), paragraph four of the syllabus. "Therefore, a common law motion to vacate a void judgment need not meet the standards applicable to a Civ.R. 60(B) motion." State ex rel. DeWine at 17. As such, this Court will treat the motion below as a common law motion to vacate, and our analysis will not include discussion of the GTE.Automatic Elec., Inc. factors. { 11} Pursuant to Civ,R. 17(A), "[e]very action shall be prosecuted in the name of the real party in interest." "The real party in interest in a foreclosure action `is the current holder of the note and mortgage."' Haugabrook at 18, citing Wells Fargo Bank N.A. v. Horn, 9th Dist. Lorain No. 12CA010230, 2013-Ohio-2374, 10, quoting U.S. Bank; N.A. v, Richards, 189 Ohio App.3d 276, 2010-Ohio-3981, 113 (9th Dist.). However, Civ,R. 17(A) does not apply "unless the plaintiff has standing to invoke the jurisdiction of the court in the first place." (Internal quotations omitted). Haugabrook at S. {112} In Sclzwartzwald,134 Ohio St.3d 13, at 13, the Supreme Court of Ohio stated that "receiving an assignm ent of a promissory note and mortgage from the real party in interest subsequent to the filing of an action but prior to the entry of,judgment does not cure a lack of standing to file a foreclosure action." "The Ohio Constitution provides in Article IV, Section 4(B): `[t,jhe courts of common pleas and divisions thereof shall have such original jurisdiction over a111usticiable matters and such powers of review of proceedings of administrative officers and agencies as may be provided by law."' (Emphasis sic.) Id. at120. Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue, Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends on whether the party has alleged *** a personal stake in the outcome of the controversy. A-5

20 6 (Intemal quotations omitted.) Id. at 121, quoting Cleveland v. Shaker His., 30 Ohio St.3d 49, 51 (19$7), Standing is a jurisdictional matter and, therefore, must be established at the time the complai.nt. is filed. Schwcrrtzvald at124. {N13} At the commencement of an action, if a plaintiff does not have standing to invoke the court's jurisdiction, the "common pleas court cannot substitute a real party in interest for another party if no party with standing has invoked its jurisdiction in the first instance." Id. at T 38. "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. at140. (114) Here, the record indicates that U.S. Bank filed its complaint on June 8, However, the assigriment of the mortgage from MERS to U.S. Bank is dated June 11, Further, the note allonge from Residential Funding Corporation to U.S. Bank is undated, and contains incorrect information regarding: (1) the name of the borrower (listing the borrower as Richard Cooper instead of Michael Cooper), (2) the date of the original loan (listing the date of the original loan as June 23, 2005, instead of May 27, 2005), and (3) the amount of the original loan (listing the amount of the original loan as $21,200, instead of $224,100). Additionally, although the trial court identified serious defects with the evidence attached to U.S. B.ank's motion for sununary judgment, including with the assignment, it endorsed and journalized the decree of foreclosure because the parties allegedly consented. { 15) Upon careful review of the record, we see no evidence that U.S. Bank had standing to file its foreclosure complaint against the Coopers on June 8, The assignment of the mortgage itself clearly shows that U.S. Bank came into possession of the mortgage on June 11, 2007, three days after the complaint was filed. Also, there is no indication in the record A-6

21 7 as to when U.S. Bank became the holder of the Coopers' note because the allonges are undated and contain inaccurate information. Therefore, in accordance with Schwartzwald, this Court sustains the Coopers' first assignment of error and orders the trial court to dismiss the complaint without prejudice. ASSIGNMENT OF ERROR TI THE TRIAL COURT ERRED IN DENYING THE [COOPERS'] MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CML RULE 60(B) BECAUSE D tu.s. BANK] IS NOT A PARTY IN INTEREST. {116) Based upon our resolution of the Coopers' first assignment of error, we conclude that the second a.ssignment of error is moot. See App.R. 12(A)(1)(c). Ill. {1[17) In sustaining the Coopers' first assignment of error, and deeming the second assignment of error moot, the judgment of the Medina County Court of Common Pleas is reversed and the cause is remanded for further proceedings consistent with this decision. Judgment reversed, and cause remanded. There were reasonable grounds for this appeal. A-7

22 8 I We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, 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 Joumal 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 fihis,judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee. CARLA MOORE FOR THE COURT CAR.R, J. WHITMORE, J. CONCUR. APPEARANCES: 30HN C, OBERHOLTZER, Attorney at Law, for Appellants. SCOTT A. KING and CHRISTINE M. COOPER, Attomeys at Law, for Appellee. A-8