IN THE SUPREME COURT OF OHIOFEDERAL HOME LOAN MORTGAGE *
CORP.
Plaintiff-Appellee
-vs-
DUANE SCHWARTZWALD, et al.
Defendants-Appellants.
*
*
Case Nos. 2011-1201 and 2011-
%ftwffAwMw"
362
On Appeal from the Greene County
Court of Appeals, Second Appellate
District
Court of Appeals Case No. 2010 CA 0041
MERIT
BRIEF
OF APPELLANTS DUANE AND JULIE SCHWARTZWALD
ANDREW M. ENGEL (0047371)
7071 Corporate Way, Suite 201
Centerville, OH 45459
(937) 938-9412
Fax: (937) 938-9411
amengel@sbcglobal.net
Attorvey for Appellants Duane andJulie SchwartzwaldSCOTTA. KING (0037582)
TERRY POSEY (0078292)
Thompson Hine, LLPAustin Landing I
10050 Innovation Drive, Suite 400Dayton, Ohio
45342-4934
(937) 443-6560Fax: (937) 443-6830
Scott.King@ThompsonHine.com
Terry.Posey@ThompsonHine.com
Attorneys for Federal Home Loan Mortgage
Corp.
11
C1:ER0 OF COURT
SUPREME C®UP
TABLE OF CONTENTS
Page
Table of ContentsTable of Cases, Statutes and Authorities Cited
iii
Introduction
1
Statement of the Facts
1
Argument
5
I The Difference Between Standing And Real Party In Interest.
5
Proposition of law No. 1: a lack of standing may not be cured orratified pursuant to Civil Rule 17.
5
A. Standing Requires Injury In Fact Traceable To The Defendant's
Unlawful Conduct.
6
B. A Real Party In Interest Status Is Limited To The Person EntitledTo Enforce The Right Sued Upon.
8
C. A Lack Of Standing May Not Be Cured Or Ratified Pursuant To
Civil Rule 17.
10
II StandingIs A Necessary Component Of The Jurisdiction Of
Ohio's Common Pleas Courts.
11
Propostition
Of Law No. 2:
In Order To Invoke The Subject
Matter Jurisdiction Of The Common Pleas Court, A Plaintiff
Must Have Standing At The Time The Complaint Is Filed.
11
A. Standing Is Necessary To Render A Dispute Justiciable.
11
B. To Invoke The Jurisdiction Of A Common Pleas Court In Ohio
A Plaintiff Must Present A Justiciable Controversy Over WhichThe Court Has Statutory Jurisdiction.
14
C. Standing May Be Based Only On The Plantifl's Rights.
15
D. In Order To Invoke The Subject Matter Jurisdiction Of TheCommon Pleas Court, A Plaintiff Must Have Standing At The Time
The Complaint Is Filed.
16
III To Have Standing To Enforce A Negofiable
Instrument
A Plaintiff Must
Be A Person Entitled To Enforce The Note Under R.C. 1303.31. 17
Proposition
Of Law No. 3:
In Order To Have Standing To SueOn A Defaulted
Note, The
Plaintiff
Must Be A
Person EntitledTo Enforce The Instrument When The Complaint
Is Fled 17
A. To Have
Standing
To Enforce A Negotiable Instrument, The
Plaintiff
Must
Be A Person Entitled To Enforce The
Instrument 18
B. In Order To Have Standing To Sue On A Defaulted Note, The
Plaintiff Must Prove A Complete Chain Of Title To The Instrument 19
C. In Order To Have Standing To Sue On A Defaulted Note, ThePlaintiff Must Be A Person Entitled To Enforce The Instrument WhenThe Complaint Is Filed.
19
IV. AssiQnment Of The Mortgage After Suit Is Filed Is Not A "Cure"
RecognizedUnder Cvil Rule 17(A. 20
Proposition Of Law No. 4: A Plaintiff May Not Cure A Real
Party
In Interest Defect Pursuant
To Civ. R. 17 By Acquiring
An Interest In The Subject Of The Litigation After TheComplaint
Is Filed.
V. Answering The Certified Questions.
Conclusion
Certificate of Service
Appendix
Notice of Appeal
Notice of Certified ConflictCourt of Appeals Judgment and Opinion
Trial Court JudgmentOhio Constitution, Article IV, Section 4
Civil Rule 17
R.C. 1303.31
20
21
21
22
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A-2A-3A-4
A-5
A-6
A-7
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