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Onewest Bank v. Yevtich, 2012-Ohio-6246

Ohio Court of Appeals Reverses Foreclosure Based on Schartzwald.

Pursuant to 6th Dist.Loc.App.R. 12(A), we sua sponte transfer this matter to our accelerated docket and hereby render our decision.

{¶ 7} Subsequent to oral argument on this matter, the Supreme Court of Ohio  released an opinion dispositive of this matter. In Fed. Home Loan Mtge. Corp. v. Schwartzwald, Slip Opinion No. 2012-Ohio-5017, ¶ 28, the court held that a party that failed to establish an interest in the mortgage or the note at the time it filed suit had no standing to invoke the jurisdiction of the court. Moreover, a litigant cannot cure a lack of standing after the commencement of the suit by later obtaining an interest in the subject of the litigation. Id. at ¶ 39.

Since appellee did not obtain a justiciable interest in this suit until the mortgage was assigned to it in January 2010, it lacked standing to invoke the subject matter jurisdiction of the court when it filed its complaint in September 2009.

Appellants’ Civ.R. 12(B)(1) motion should have been granted. Accordingly, appellants’ sole assignment of error is well-taken.

{¶ 9} On consideration whereof, the judgment of the Fulton County Court of Common Pleas is reversed. Pursuant App.R. 12(B) and Schwartzwald at ¶ 40, the underlying suit is dismissed without prejudice. It is ordered that appellee pay the court costs of this appeal pursuant to App.R. 24.

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