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Bank of America v. June Macho

October 27, 2011

BANK OF AMERICA PLAINTIFF-APPELLEE
v.
JUNE MACHO, ET AL. DEFENDANTS-APPELLANTS



Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-696021

The opinion of the court was delivered by: Frank D. Celebrezze, Jr., P.J.

Cite as Bank of Am. v. Macho,

JOURNAL ENTRY AND OPINION

JUDGMENT:

AFFIRMED

BEFORE: Celebrezze, P.J., Sweeney, J., and Keough, J.

{¶1} Appellant, June Macho, brings the instant appeal challenging the trial court's dismissal of her cross-claim against Washington Mutual Bank, F.A. ("WaMu") and the Federal Deposit Insurance Corporation ("FDIC"), a substituted party as receiver for WaMu.

{¶2} In October 2006, Macho agreed to refinance her home for $149,250 with WaMu and signed a note and mortgage evidencing the debt. The loan was originated by Oak Mortgage Company ("Oak") and its employee, mortgage broker Bob Tengler. Macho alleges that the loan application was fraudulently completed by Tengler to show that Macho received more income from social security and her pension than she stated and that she received conflicting and inaccurate disclosure statements from WaMu, Oak, and the title company involved in the transaction, Anthem Escrow ("Anthem").*fn1 Macho also agreed to a second loan from WaMu in the amount of $15,000.

{¶3} On September 25, 2008, WaMu was taken over by the Office of Thrift Supervision, and the FDIC was appointed as receiver over WaMu's assets, which JPMorgan Chase Bank, N.A. ("Chase") purchased.

{¶4} By June 17, 2009, Macho had become delinquent on her mortgage, and Bank of America N.A. ("BofA"), assignee of the primary note and mortgage, filed a foreclosure suit on that date. After a title search, BofA named WaMu as a party because it may have had an interest in the property as a result of the $15,000 loan. BofA served WaMu at the address of a Chase office in Ohio. Macho then filed an answer, cross-claim, counterclaim, and third-party complaint against BofA, WaMu, Oak, Tengler, and Anthem.

{¶5} On July 8, 2010, the FDIC made a limited appearance to file a motion to be substituted for WaMu and moved to dismiss the complaint against it. A hearing was held regarding the motion to dismiss where the FDIC argued that the trial court did not have subject matter or personal jurisdiction over it, relying on provisions of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"), Pub.L. 101-73, 103 Stat. 183. The trial court ultimately agreed with the FDIC and dismissed the complaint against it for lack of subject matter jurisdiction. Macho timely filed a notice of appeal assigning a single error.

{¶6} I. "The trial court erred when it found that it had no subject matter jurisdiction over the FDIC."

Law and Analysis

I. Subject Matter Jurisdiction

{¶7} After a party files a Civ.R. 12(B)(1) motion to dismiss, the trial court must determine whether the complaint contains allegations of a cause of action that the trial court has authority to decide. Crestmont Cleveland Partnership v. Ohio Dept. of Health (2000), 139 Ohio App.3d 928, 936, 746 N.E.2d 222. The Ohio Supreme Court has further noted that the "trial court is not confined to the allegations of the complaint when determining its subject-matter jurisdiction pursuant to a Civ.R. 12(B)(1) motion to dismiss, and it may consider material pertinent to such inquiry." Southgate Dev. Corp. v. Columbia Gas Transm. Corp. (1976), 48 Ohio St.2d 211, 358 N.E.2d 526, paragraph one ...


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