As all professionals whose business involves the prosecution of foreclosures in Ohio almost certainly know by now, the Ohio Supreme Court’s decision in Fed. Home Loan Mortg. Corp. v. Schwartzwald1 provided that the foreclosing plaintiff must have standing to bring the action at the time the plaintiff files the complaint. Typically this requires the claimant to be the holder of the note and mortgage at the time it files its foreclosure complaint. The substance of the court’s holding in Schwartzwald does not leave much room for interpretation, but the actual application of the decision in practice has led to a number of procedural questions and disputes. The Supreme Court of Ohio has again stepped up and agreed to hear two specific cases where the district courts of appeal have rendered differing standards.

The first question involves the extent to which proof of standing needs to be offered at the time of filing the complaint, arising out of Wells Fargo Bank, N.A. v. Horn.2 The issue in dispute in Horn relates to whether the foreclosing plaintiff need affirmatively prove its standing at the time of filing the complaint – in other words, whether sufficient documentation needs to be attached to the complaint in order to establish standing at the time of filing, rather than having to meet that burden at a later time during the proceedings. The Eighth and Tenth District Courts of Appeal have ruled that although standing does need to exist at the time the complaint is filed, standing need not be affirmatively proven by supporting documentation appended to the complaint.3 The Ninth District found otherwise, determining that a bank did not have standing at the time of filing the complaint as required by Schwartzwald because the complaint did not include any merger or name change documents evidencing the bank’s line of succession from the original lender, even though the merger occurred before the complaint was filed and the complaint expressly referenced the merger.4

The next two questions were certified from the Tenth District Court of Appeals after its decision in Deutsche Bank v. Finney5, which it deemed to be in conflict with decisions of the Ninth and Tenth District Courts of Appeal6:

  1. In a foreclosure action, does a plaintiff’s lack of standing at the time it commenced an action deprive a common pleas court of subject-matter jurisdiction?
  2. In a case where the plaintiff lacked standing to commence the action, is the resulting judgment void or merely voidable?


These questions are largely companions to the situation presented in the Horn case above, and arise when no one has addressed the standing issue in some manner until after judgment has been rendered – in other words, the question becomes whether the court had any jurisdiction to render a valid judgment when the plaintiff’s standing has not been affirmatively established.  Without delving too deeply into what is really a question of civil procedure more than substantive foreclosure law, the questions can be summarized as being an inquiry into whether the Schwartzwald  court referred specifically to subject-matter jurisdiction, or whether it was referring to personal or other jurisdiction specific to that particular case (judgments rendered in the former would be void in and of themselves; judgments rendered as to the latter would be voidable upon appeal).


Ultimately these cases bear watching because they could have a significant impact upon foreclosure actions in Ohio.  Or, alternatively, plaintiffs could simply attach some evidence as exhibits to their foreclosure complaint demonstrating the chain of assignments and related documents whereby the foreclosing plaintiff became the owner and holder of the note, mortgage and other loan documents pertinent to the action at hand.  In fact, given that doing so would largely render all of the issues in these cases moot, this blogger would highly recommend taking the time to draft the foreclosure complaint so as to include all necessary assignments and other evidence establishing the plaintiff’s standing in each and every case.


1Fed. Home Loan Mortg. Corp. v. Schwartzwald, 2012-Ohio-5017.
2Wells Fargo Bank, N.A. v Horn, 2013-Ohio-2374 (9th Dist. Ct. App.)
3Deutsche Bank Nat’l Trust Co. v. Najar, 2013-Ohio-1657 (8th Dist. Ct. App.); United States Bank Nat’l Ass’n v. Gray, 2013-Ohio-3340 (10th Dist. Ct. App.)
4Wells Fargo Bank, N.A. v Horn, 2013-Ohio-2374 (9th Dist. Ct. App.)
5Deutsche Bank Nat’l Trust Co. v. Finney, 2013-Ohio-4884 (10th Dist. Ct. App.)
6Quantum Servicing Corp. v. Haugabrook, 2013-Ohio-3516 (9th Dist. Ct. App.); Deutsche Bank Natl. Trust Co. v. Finney, 2013-Ohio-4884 (10th Dist. Ct. App.)