Court of Appeals of Ohio, Fifth District, Delaware
Civil appeal from the Delaware County Court of Common Pleas, Case No. 11CV E 091206
For Plaintiff-Appellee STEPHEN WILLIGER, MICHAEL DILLARD
For Defendants-Appellant GREGORY WETZEL, DANIEL YARMESCH
JUDGES Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
W. SCOTT GWIN, P.J.
(¶1} Appellant appeals the February 4, 2013 judgment entry of the Delaware County Common Pleas Court denying his motion to dismiss complaint.
Facts & Procedural History
(¶2} On October 27, 2006, appellant Chris W. Elliott executed a promissory note in favor of Ethical Mortgage Lending, LLC ("Ethical Mortgage") for $162, 000. Also on that date, appellant executed a mortgage that secured the note and encumbered the property located at 6207 Charmar Drive, Westerville, Ohio. The mortgage indicated the lender was Ethical Mortgage Lending, LLC, and listed Mortgage Electronic Registration Systems ("MERS") as nominee for lender and lender's successors and assigns. The mortgage provided that "MERS is the mortgagee under this Security Instrument." In a document entitled "Assignment of Mortgage" that was recorded January 12, 2011, MERS, as nominee for Ethical Mortgage, assigned the October 27, 2006 mortgage securing 6207 Charmar Drive, Westerville, Ohio, to appellee Wells Fargo Bank, National Association, as Trustee for Certificateholders of Bear Stearns Asset Backed Securities I LLC, Asset Backed Certificates, Series 2007-AC2.
(¶3} Appellee filed a complaint for foreclosure on September 30, 2011. Appellee attached to the complaint a copy of the October 27, 2006 note with Ethical Mortgage listed as the lender. The note did not contain any endorsement to indicate the note had been transferred or assigned. Also attached to the complaint was a copy of the October 27, 2006 mortgage. Finally, appellee attached to the complaint a copy of the assignment of mortgage recorded on January 12, 2011 from MERS, as nominee for Ethical Mortgage, to appellee.
(¶4} Appellant was served with the complaint on October 10, 2011, by process server, but did not file an answer to the complaint. On April 13, 2012, appellee filed a motion for default judgment against appellant. Appellee filed an affidavit in support of its motion for default judgment which incorporated a copy of the October 27, 2006 note. However, this copy of the note contained an endorsement by Ethical Mortgage made payable to Huntington National Bank and a second endorsement made by Huntington National Bank payable to blank. The trial court granted appellee's motion for default in a judgment entry and decree of foreclosure on April 19, 2012 and indicated the judgment entry and decree of foreclosure was a final appealable order. Appellant did not appeal the April 19, 2012 judgment entry and decree of foreclosure. The trial court scheduled a sheriffs sale of the home on July 11, 2012. Appellant filed a Chapter 7 bankruptcy petition on July 10, 2012. Appellee was granted relief from the automatic bankruptcy stay on August 21, 2012 and on October 18, 2012, appellee filed with the trial court a notice that the automatic stay was no longer in effect. On November 7, 2012, a sheriffs sale of the home was scheduled for December 12, 2012.
(¶5} On November 9, 2012, appellant filed a motion to dismiss complaint pursuant to Civil Rule 12(B)(1). The trial court denied appellant's motion to dismiss on February 4, 2013. The trial court first determined that Civil Rule 12(B)(1) is not the proper procedural tool for appellant's request because it is only before judgment has been rendered or after the judgment has been vacated that the trial court may consider a motion to dismiss complaint. The trial court further found that the assignment of the mortgage in this case which was completed prior to the filing of appellee's complaint was sufficient to transfer both the mortgage and the note. The trial court concluded appellee had standing at the time the complaint was filed. Appellant filed an appeal of the trial court's February 4, 2013 decision denying his motion to dismiss and raises the following assignments of error on appeal:
(¶6} "I. THE TRIAL COURT ERRED WHEN IT HELD CHRIS W. ELLIOTT ("MR. ELLIOTT") COULD NOT CHALLENGE ITS SUBJECT MATTER JURISDICTION POST-JUDGMENT WITHOUT FIRST FILING A MOTION FOR RELIEF FROM JUDGMENT.
(¶7} "II. THE TRIAL COURT ERRED WHEN IT HELD WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR CERTIFICATEHOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES I LLC, ASSET BACKED CERTIFICATES, SERIES 2007-AC2 ("WELLS FARGO") ESTABLISHED ITS STANDING TO INVOKE THE ...