[Cite as Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017.] 

FEDERAL HOME LOAN MORTGAGE CORPORATION, APPELLEE, v.

SCHWARTZWALD ET AL., APPELLANTS. 

[Cite as Fed. Home Loan Mtge. Corp. v. Schwartzwald, 

134 Ohio St.3d 13, 2012-Ohio-5017.] 

Foreclosure—Jurisdictional aspects of standing—Civ.R. 17(A)—Jurisdiction 

determined as of time of filing suit. 

(Nos. 2011-1201 and 2011-1362—Submitted April 4, 2012—Decided 

October 31, 2012.) 

APPEAL from and CERTIFIED by the Court of Appeals for Greene County, 

No. 2010 CA 41, 194 Ohio App.3d 644, 2011-Ohio-2681. 

__________________ 

O’DONNELL, J. 

{¶ 1} Duane and Julie Schwartzwald appeal from a judgment of the 

Second District Court of Appeals affirming a decree of foreclosure entered in 

favor of the Federal Home Loan Mortgage Corporation. In addition, the appellate 

court certified that its decision in this case conflicts with decisions of the First and 

Eighth Districts on the following issue: “In a mortgage foreclosure action, the 

lack of standing or a real party in interest defect can be cured by the assignment of 

the mortgage prior to judgment.” 

{¶ 2} Federal Home Loan commenced this foreclosure action before it 

obtained an assignment of the promissory note and mortgage securing the 

Schwartzwalds’ loan. The Schwartzwalds maintained that Federal Home Loan 

lacked standing to sue. The trial court granted summary judgment in favor of 

Federal Home Loan and entered a decree of foreclosure. The appellate court 

affirmed, holding that Federal Home Loan had remedied its lack of standing when 

it obtained an assignment from the real party in interest. 
SUPREME COURT OF OHIO

2 

{¶ 3} However, standing is required to invoke the jurisdiction of the 

common pleas court, and therefore it is determined as of the filing of the 

complaint. Thus, receiving an assignment of a promissory note and mortgage 

from the real party in interest subsequent to the filing of an action but prior to the 

entry of judgment does not cure a lack of standing to file a foreclosure action. 

{¶ 4} Accordingly, the judgment of the court of appeals is reversed, and 

the cause is dismissed.

Facts and Procedural History 

{¶ 5} In November 2006, Duane and Julie Schwartzwald purchased a 

home in Xenia, Ohio, and received a mortgage loan from Legacy Mortgage in the 

amount of $251,250. They executed a promissory note and a mortgage granting 

Legacy Mortgage a security interest in the property. Legacy Mortgage then 

endorsed the promissory note as payable to Wells Fargo Bank, N.A., and assigned 

it the mortgage. 

{¶ 6} In September 2008, Duane Schwartzwald lost his job at Barco, 

Inc., and the Schwartzwalds moved to Indiana so he could accept a new position. 

They continued making mortgage payments as they tried to sell the house in 

Xenia, but they went into default on January 1, 2009. In March 2009, Wells 

Fargo agreed to list the property for a short sale, and on April 8, 2009, the 

Schwartzwalds entered into a contract to sell it for $259,900, with closing set for 

June 8, 2009. 

{¶ 7} However, on April 15, 2009, Federal Home Loan Mortgage 

Corporation commenced this foreclosure action, alleging that the Schwartzwalds 

had defaulted on their loan and owed $245,085.18 plus interest, costs, and 

advances. It attached a copy of the mortgage identifying the Schwartzwalds as 

borrowers and Legacy Mortgage as lender, but did not attach a copy of the note, 

claiming that “a copy of [the note] is currently unavailable.” 
January Term, 2012 

3 

{¶ 8} Julie Schwartzwald then contacted Wells Fargo about the 

foreclosure complaint. She testified, “I was told that it was ‘standard procedure’ 

and ‘don’t worry about it’ because we were doing a short sale.” The 

Schwartzwalds did not answer the complaint. 

{¶ 9} On April 24, 2009, Federal Home Loan filed with the court a copy 

of the note signed by the Schwartzwalds in favor of Legacy Mortgage. The final 

page carries a blank endorsement by Wells Fargo placed above the endorsement 

by Legacy Mortgage payable to Wells Fargo. 

{¶ 10} On May 15, 2009, Wells Fargo assigned the note and mortgage to 

Federal Home Loan, and Federal Home Loan filed with the court a copy of the 

assignment on June 17, 2009. It then moved for a default judgment and a 

summary judgment, but the trial court discovered that Federal Home Loan had 

failed to establish a chain of title because no assignment of the mortgage from 

Legacy Mortgage to Wells Fargo appeared in the record. 

{¶ 11} During this time, even though it had assigned its interest in the 

note and mortgage to Federal Home Loan, Wells Fargo continued discussing a 

short sale of the property with the Schwartzwalds, but delays in this process 

eventually caused the Schwartzwalds’ buyer to rescind the offer. On December 

14, 2009, the trial court granted the Schwartzwalds leave to file an answer. That 

same day, Federal Home Loan filed with the court a copy of the assignment of the 

mortgage from Legacy Mortgage to Wells Fargo dated November 27, 2006. 

{¶ 12} Federal Home Loan again moved for summary judgment, 

supporting the motion with the affidavit of Herman John Kennerty, vice president 

of loan documentation for Wells Fargo as servicing agent for Federal Home Loan, 

who averred that the Schwartzwalds were in default and who authenticated the 

note and mortgage as well as the assignment of the note and mortgage from Wells 

Fargo. Subsequently, Federal Home Loan filed copies of the notarized 
SUPREME COURT OF OHIO

4 

assignments from Legacy Mortgage to Wells Fargo and from Wells Fargo to 

Federal Home Loan. 

{¶ 13} The Schwartzwalds also moved for summary judgment, asserting 

that Federal Home Loan lacked standing to foreclose on their property. 

{¶ 14} The trial court entered summary judgment for Federal Home Loan, 

finding that the Schwartzwalds had defaulted on the note, and it ordered the 

equity of redemption foreclosed and the property sold. Federal Home Loan 

purchased the property at a sheriff’s sale. 

{¶ 15} On appeal, the Second District Court of Appeals affirmed and held 

that Federal Home Loan had established its right to enforce the promissory note 

as a nonholder in possession, because assignment of the mortgage effected a 

transfer of the note it secured. The court further explained that standing is not a 

jurisdictional prerequisite and that a lack of standing may be cured by substituting 

the real party in interest for an original party pursuant to Civ.R. 17(A). Thus, the 

court concluded that although Federal Home Loan lacked standing at the time it 

commenced the foreclosure action, it cured that defect by the assignment of the 

mortgage and transfer of the note prior to entry of judgment. 

{¶ 16} The court of appeals certified that its decision conflicted with 

Wells Fargo Bank, N.A. v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 

N.E.2d 722, ¶ 15-16 (1st Dist.); Bank of New York v. Gindele, 1st Dist. No. C090251, 2010-Ohio-542, ¶ 3-4; and Wells Fargo Bank, N.A. v. Jordan, 8th Dist. 

No. 91675, 2009-Ohio-1092, ¶ 21, cases that held that a lack of standing cannot 

be cured by substituting the real party in interest for an original party pursuant to 

Civ.R. 17(A). We accepted the conflict and the Schwartzwalds’ discretionary 

appeal on the same issue. 

Arguments on Appeal

{¶ 17} The Schwartzwalds explain that the essential aspect of standing is 

injury to a legally protected right and claim that Federal Home Loan had not been 
January Term, 2012 

5 

injured by their default at the time it commenced this foreclosure action, because 

it had not obtained the note and mortgage until after it filed the complaint. 

Relying on federal case law, they maintain that standing is determined as of the 

time the action is brought, so that subsequent events do not cure a lack of 

standing. They further urge that although the requirement of a real party in 

interest can be waived, that requirement cannot be equated with the requirement 

of standing. 

{¶ 18} Federal Home Loan asserts that pursuant to R.C. 1303.31, it is a 

“person entitled to enforce the note” because it is “[a] nonholder in possession of 

the instrument who has the rights of a holder” by virtue of the negotiation of the 

note from Legacy to Wells Fargo and the assignment from Wells Fargo. Further, 

it maintains that R.C. 1303.31 defines only which party is entitled to enforce a 

note and that the failure to be a real party in interest at the commencement of suit 

can be cured pursuant to Civ.R. 17(A) by the assignment of the mortgage and 

note. It also contends that the jurisdictional requirement of justiciability is 

satisfied if the allegations of the complaint establish that the plaintiff has standing 

to present a justiciable controversy and that even if it is determined that those 

allegations were in fact false, the matter remains justiciable so long as the plaintiff 

subsequently obtains the right to foreclose prior to judgment. On this basis, it 

argues that because “the Ohio Constitution bestows general (and not limited) 

jurisdiction on common pleas courts, common pleas courts have ‘jurisdiction’ to 

hear disputes, even if the named plaintiff was not the correct person to invoke it.” 

Thus, it concedes that the record in this case does not establish that it was a 

person entitled to enforce the note as of the date the complaint was filed, but it 

maintains that it “proved that it was such a person prior to judgment.” 

{¶ 19} Accordingly, the question presented is whether a lack of standing 

at the commencement of a foreclosure action filed in a common pleas court may 
SUPREME COURT OF OHIO

6 

be cured by obtaining an assignment of a note and mortgage sufficient to establish 

standing prior to the entry of judgment.

Law and Analysis 

Standing to Sue 

{¶ 20} The Ohio Constitution provides in Article IV, Section 4(B): “The 

courts of common pleas and divisions thereof shall have such original jurisdiction 

over all justiciable matters and such powers of review of proceedings of 

administrative officers and agencies as may be provided by law.” (Emphasis 

added.) 

{¶ 21} In Cleveland v. Shaker Hts., 30 Ohio St.3d 49, 51, 507 N.E.2d 323 

(1987), we stated: 

“ ‘Whether a party has a sufficient stake in an otherwise 

justiciable controversy to obtain judicial resolution of that 

controversy is what has traditionally been referred to as the 

question of standing to sue. Where the party does not rely on any 

specific statute authorizing invocation of the judicial process, the 

question of standing depends on whether the party has alleged 

* * * a “personal stake in the outcome of the controversy.” ’ ” 

Id., quoting Middletown v. Ferguson, 25 Ohio St.3d 71, 75, 495 N.E.2d 380 

(1986), quoting Sierra Club v. Morton, 405 U.S. 727, 731-732, 92 S.Ct. 1361, 31 

L.Ed.2d 636 (1972), quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 

L.Ed.2d 663 (1962). Similarly, the United States Supreme Court observed in 

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102, 118 S.Ct. 1003, 

140 L.Ed.2d 210 (1998), that “[s]tanding to sue is part of the common 

understanding of what it takes to make a justiciable case.” 
January Term, 2012 

7 

{¶ 22} We recognized that standing is a “jurisdictional requirement” in 

State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio St.2d 

176, 179, 298 N.E.2d 515 (1973), and we stated: “It is an elementary concept of 

law that a party lacks standing to invoke the jurisdiction of the court unless he has, 

in an individual or representative capacity, some real interest in the subject matter 

of the action.” (Emphasis added.) See also New Boston Coke Corp. v. Tyler, 32 

Ohio St.3d 216, 218, 513 N.E.2d 302 (1987) (“the issue of standing, inasmuch as 

it is jurisdictional in nature, may be raised at any time during the pendency of the 

proceedings”); Steinglass & Scarselli, The Ohio State Constitution: A Reference 

Guide 180 (2004) (noting that the jurisdiction of the common pleas court is 

limited to justiciable matters). 

{¶ 23} And recently, in Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 

2010-Ohio-6036, 944 N.E.2d 207, we affirmed the dismissal of a complaint for 

lack of standing when it had been filed before the claimant had suffered any 

injury. There, Kincaid asserted claims that his insurer had breached the insurance 

contract by failing to pay expenses covered by the policy; however, he had never 

presented a claim for reimbursement to the insurer. We concluded that Kincaid 

lacked standing to assert the cause of action, explaining, “Until Erie refuses to pay 

a claim for a loss, Kincaid has suffered no actual damages for breach of contract, 

the parties do not have adverse legal interests, and there is no justiciable 

controversy.” Id. at ¶ 13. 

{¶ 24} Because standing to sue is required to invoke the jurisdiction of the 

common pleas court, “standing is to be determined as of the commencement of 

suit.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 570-571, 112 S.Ct. 2130, 119 

L.Ed.2d 351 (1992), fn. 5; see also Friends of the Earth, Inc. v. Laidlaw 

Environmental Servs. (TOC), 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 

(2000); Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154-1155 (10th Cir.2005); 

Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275 
SUPREME COURT OF OHIO

8 

(11th Cir.2003); Perry v. Arlington Hts., 186 F.3d 826, 830 (7th Cir.1999); Carr 

v. Alta Verde Industries, Inc., 931 F.2d 1055, 1061 (5th Cir.1991). 

{¶ 25} Further, invoking the jurisdiction of the court “depends on the state 

of things at the time of the action brought,” Mullan v. Torrance, 22 U.S. 537, 539, 

9 Wheat. 537, 6 L.Ed. 154 (1824), and the Supreme Court has observed that “[t]he 

state of things and the originally alleged state of things are not synonymous; 

demonstration that the original allegations were false will defeat jurisdiction.” 

Rockwell Internatl. Corp. v. United States, 549 U.S. 457, 473, 127 S.Ct. 1397, 

167 L.Ed.2d 190 (2007). 

{¶ 26} Thus, “[p]ost-filing events that supply standing that did not exist 

on filing may be disregarded, denying standing despite a showing of sufficient 

present injury caused by the challenged acts and capable of judicial redress.” 13A 

Wright, Miller & Cooper, Federal Practice and Procedure 9, Section 3531 

(2008); see Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 575, 124 

S.Ct. 1920, 158 L.Ed.2d 866 (2004), quoting Caterpillar, Inc. v. Lewis, 519 U.S. 

61, 75, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (rejecting argument that “ ‘finality, 

efficiency, and judicial economy’ ” can justify suspension of the time-of-filing 

rule); Utah Assn. of Counties v. Bush, 455 F.3d 1094, 1101, and fn. 6 (10th 

Cir.2006) (a plaintiff cannot rely on injuries occurring after the filing of the 

complaint to establish standing). 

{¶ 27} This principle accords with decisions from other states holding that 

standing is determined as of the filing of the complaint. See, e.g., Deutsche Bank 

Natl. Trust v. Brumbaugh, 2012 OK 3, 270 P.3d 151, ¶ 11 (“If Deutsche Bank 

became a person entitled to enforce the note as either a holder or nonholder in 

possession who has the rights of a holder after the foreclosure action was filed, 

then the case may be dismissed without prejudice * * *” [emphasis added]); U.S. 

Bank Natl. Assn. v. Kimball, 190 Vt. 210, 2011 VT 81, 27 A.3d 1087, ¶ 14 (“U.S. 

Bank was required to show that at the time the complaint was filed it possessed 
January Term, 2012 

9 

the original note either made payable to bearer with a blank endorsement or made 

payable to order with an endorsement specifically to U.S. Bank” [emphasis 

added]); Mtge. Electronic Registration Sys., Inc. v. Saunders, 2010 ME 79, 2 A.3d 

289, ¶ 15 (“Without possession of or any interest in the note, MERS lacked 

standing to institute foreclosure proceedings and could not invoke the jurisdiction 

of our trial courts” [emphasis added]); RMS Residential Properties, L.L.C. v. 

Miller, 303 Conn. 224, 229, 232, 32 A.3d 307 (2011), quoting Hiland v. Ives, 28 

Conn.Supp. 243, 245, 257 A.2d 822 (1966) (explaining that “ ‘[s]tanding is the 

legal right to set judicial machinery in motion’ ” and holding that the plaintiff had 

standing because it proved ownership of the note and mortgage at the time it 

commenced foreclosure action); McLean v. JP Morgan Chase Bank Natl. Assn., 

79 So.3d 170, 173 (Fla.App.2012) (“the plaintiff must prove that it had standing 

to foreclose when the complaint was filed”); see also Burley v. Douglas, 26 So.3d 

1013, 1019 (Miss.2009), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 

571, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), fn. 5 (“ ‘standing is to be 

determined as of the commencement of suit’ ”); In re 2007 Administration of 

Appropriations of Waters of the Niobrara, 278 Neb. 137, 145, 768 N.W.2d 420 

(2009) (“only a party that has standing may invoke the jurisdiction of a court or 

tribunal. And the junior appropriators did not lose standing if they possessed it 

under the facts existing when they commenced the litigation” [footnote omitted]). 

{¶ 28} Here, Federal Home Loan concedes that there is no evidence that it 

had suffered any injury at the time it commenced this foreclosure action. Thus, 

because it failed to establish an interest in the note or mortgage at the time it filed 

suit, it had no standing to invoke the jurisdiction of the common pleas court. 

The Real-Party-in-Interest Rule 

{¶ 29} The court of appeals and Federal Home Loan relied on the 

plurality opinion in State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 77, 701 N.E.2d 

1002 (1998), which suggested that “[t]he lack of standing may be cured by 
SUPREME COURT OF OHIO

10 

substituting the proper party so that a court otherwise having subject matter 

jurisdiction may proceed to adjudicate the matter. Civ.R. 17.” However, four 

justices declined to join that portion of the opinion, and therefore it is not a 

holding of this court. See Ohio Constitution, Article IV, Section 2(A) (“A 

majority of the supreme court shall be necessary to constitute a quorum or to 

render a judgment”). 

{¶ 30} At common law, all actions had to be brought in the name of the 

person holding legal title to the right asserted, and individuals possessing only 

equitable or beneficial interests could not sue in their own right. See generally

Clark & Hutchins, The Real Party in Interest, 34 Yale L.J. 259 (1925); 6A 

Wright, Miller & Kane, Federal Practice and Procedure, Section 1541 (2010). 

However, the practice in equity relaxed this requirement, and states later 

abrogated the common-law rules and adopted “rules that permitted any ‘real party 

in interest’ to bring suit.” Sprint Communications Co., L.P. v. APCC Servs., Inc., 

554 U.S. 269, 279, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008). 

{¶ 31} In Ohio, Civ.R. 17(A) governs the procedural requirement that a 

complaint be brought in the name of the real party in interest and provides: 

Every action shall be prosecuted in the name of the real 

party in interest. An executor, administrator, guardian, bailee, 

trustee of an express trust, a party with whom or in whose name a 

contract has been made for the benefit of another, or a party 

authorized by statute may sue in his name as such representative 

without joining with him the party for whose benefit the action is 

brought. When a statute of this state so provides, an action for the 

use or benefit of another shall be brought in the name of this state. 

No action shall be dismissed on the ground that it is not prosecuted 

in the name of the real party in interest until a reasonable time has 
January Term, 2012 

11 

been allowed after objection for ratification of commencement of 

the action by, or joinder or substitution of, the real party in interest. 

Such ratification, joinder, or substitution shall have the same effect 

as if the action had been commenced in the name of the real party 

in interest. 

{¶ 32} Considering Civ.R. 17(A) in Shealy v. Campbell, 20 Ohio St.3d 23, 

24-25, 485 N.E.2d 701 (1985), we observed: 

The purpose behind the real party in interest rule is “ ‘* * * 

to enable the defendant to avail himself of evidence and defenses 

that the defendant has against the real party in interest, and to 

assure him finality of the judgment, and that he will be protected 

against another suit brought by the real party at interest on the 

same matter.’ Celanese Corp. of America v. John Clark Industries

(5 Cir.1954), 214 F.2d 551, 556.” [In re Highland Holiday 

Subdivision (1971), 27 Ohio App.2d 237] 240 [273 N.E.2d 903]. 

{¶ 33} As the Supreme Court explained in Lincoln Property Co. v. Roche, 

546 U.S. 81, 90, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005), the real-party-in-interest 

rule concerns only proper party joinder. Civ.R. 17(A) does not address standing; 

rather, the point of the rule is that “suits by representative plaintiffs on behalf of 

the real parties in interest are the exception rather than the rule and should only be 

allowed when the real parties in interest are identifiable and the res judicata scope 

of the judgment can be effectively determined.” Consumer Fedn. of Am. v. 

Upjohn Co., 346 A.2d 725, 729 (D.C.1975) (construing analogous District of 

Columbia rule). 
SUPREME COURT OF OHIO

12 

{¶ 34} Thus, the Third and the Ninth Circuits have rejected the notion that 

Fed.R.Civ.P. 17(a), on which Civ.R. 17(A) is based, allows a party with no 

personal stake in a controversy to file a claim on behalf of a third party, obtain the 

cause of action by assignment, and then have the assignment relate back to 

commencement of the action, stating: 

“Rule 17(a) does not apply to a situation where a party with 

no cause of action files a lawsuit to toll the statute of limitations 

and later obtains a cause of action through assignment. Rule 17(a) 

is the codification of the salutary principle that an action should 

not be forfeited because of an honest mistake; it is not a provision 

to be distorted by parties to circumvent the limitations period.” 

Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 563 (3d Cir.2008), quoting 

United States ex rel. Wulff v. CMA, Inc., 890 F.2d 1070, 1075 (9th Cir.1989). 

{¶ 35} The Sixth Circuit Court of Appeals’ decision in Zurich Ins. Co. v. 

Logitrans, Inc., 297 F.3d 528 (6th Cir.2002), illustrates this point. In that case, a 

fire at a warehouse destroyed property insured by American Guarantee, which 

paid out a claim for damages. However, another insurance company, Zurich 

Switzerland, filed a complaint claiming to be the insured’s subrogee, 

notwithstanding the fact that Zurich Switzerland had neither issued an insurance 

policy nor paid out any money to the insured. The defendants moved to dismiss 

for lack of standing, and Zurich Switzerland sought to substitute American 

Guarantee as the real party in interest pursuant to Fed.R.Civ.P. 17(a). The district 

court dismissed the action. 

{¶ 36} The Sixth Circuit Court of Appeals acknowledged that the statute 

of limitations would bar American Guarantee’s claim unless Fed.R.Civ.P. 17(a) 

allowed it to be substituted for Zurich Switzerland. However, the court 
January Term, 2012 

13 

distinguished between the requirement of standing and the objection that the 

plaintiff is not the real party in interest, and it held that because “Zurich American 

admittedly has not suffered injury in fact by the defendants, it had no standing to 

bring this action and no standing to make a motion to substitute the real party in 

interest.” Id. 

{¶ 37} Other courts have also determined that a plaintiff cannot rely on 

procedural rules similar to Civ.R. 17(A) to cure a lack of standing at the 

commencement of litigation. Davis v. Yageo Corp., 481 F.3d 661, 678 (9th 

Cir.2007) (“whether or not Dux was the real-party-in-interest, it does not have 

standing, and it cannot cure its standing problem through an invocation of 

Fed.R.Civ.P. 17(a)”); Clark v. Trailiner Corp., 242 F.3d 388 (10th Cir.2000) 

(table), opinion reported at 2000 WL 1694299 (noting that the plaintiff cannot 

“retroactively become the real-party-in-interest” in order to cure a lack of 

standing at the filing of the complaint [emphasis sic]); accord State v. Property at 

2018 Rainbow Drive, 740 So.2d 1025, 1027-1028 (Ala.1999) (rejecting the 

argument that a lack of standing can be cured after the filing of the complaint); 

Consumer Fedn. of Am. v. Upjohn Co., 346 A.2d 725, 729 (D.C.App.1975) 

(explaining that dismissal for lack of standing is consistent with 

D.C.Super.Ct.Civ.R. 17(a)); see also McLean v. JP Morgan Chase Bank Natl. 

Assn., 79 So.3d 170, 173 (Fla.App.2012) (“a party is not permitted to establish 

the right to maintain an action retroactively by acquiring standing to file a lawsuit 

after the fact”). 

{¶ 38} We agree with the reasoning and analysis presented in these cases. 

Standing is required to invoke the jurisdiction of the common pleas court. 

Pursuant to Civ.R. 82, the Rules of Civil Procedure do not extend the jurisdiction 

of the courts of this state, and a common pleas court cannot substitute a real party 

in interest for another party if no party with standing has invoked its jurisdiction 

in the first instance. 
SUPREME COURT OF OHIO

14 

{¶ 39} Accordingly, a litigant cannot pursuant to Civ.R. 17(A) cure the 

lack of standing after commencement of the action by obtaining an interest in the 

subject of the litigation and substituting itself as the real party in interest. 

Effect of Lack of Standing on Foreclosure Actions 

{¶ 40} The lack of standing at the commencement of a foreclosure action 

requires dismissal of the complaint; however, that dismissal is not an adjudication 

on the merits and is therefore without prejudice. See State ex rel. Coles v. 

Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, 877 N.E.2d 968, ¶ 51. Because 

there has been no adjudication on the underlying indebtedness, our dismissal has 

no effect on the underlying duties, rights, or obligations of the parties. 

Conclusion

{¶ 41} It is fundamental that a party commencing litigation must have 

standing to sue in order to present a justiciable controversy and invoke the 

jurisdiction of the common pleas court. Civ.R. 17(A) does not change this 

principle, and a lack of standing at the outset of litigation cannot be cured by 

receipt of an assignment of the claim or by substitution of the real party in 

interest. 

{¶ 42} Here, it is undisputed that Federal Home Loan did not have 

standing at the time it commenced this foreclosure action, and therefore it failed 

to invoke the jurisdiction of the court of common pleas. Accordingly, the 

judgment of the court of appeals is reversed, and the cause is dismissed. 

Judgment reversed 

and cause dismissed. 

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, LANZINGER, CUPP, 

and MCGEE BROWN, JJ., concur. 

__________________ 

 Thompson Hine, L.L.P., Scott A. King, and Terry W. Posey Jr., for 

appellee. 
January Term, 2012 

15 

 Andrew M. Engel, for appellants. 

 Bruce M. Broyles, urging reversal for amici curiae Homeowners of the 

State of Ohio and Ohiofraudclosure.blogspot.com. 

 Advocates for Basic Legal Equality, Inc., and Andrew D. Neuhauser; 

Legal Aid Society of Cleveland and Julie K. Robie; Legal Aid Society of 

Southwest Ohio, L.L.C., and Noel M. Morgan; Community Legal Aid Services, 

Inc., Christina M. Janice, and Paul E. Zindle; and Ohio Poverty Law Center and 

Linda Cook, urging reversal for amici curiae Advocates for Basic Legal Equality, 

Inc., Legal Aid Society of Cleveland, Legal Aid Society of Southwest Ohio, 

L.L.C., Community Legal Aid Services, Inc., Ohio Poverty Law Center, Legal 

Aid Society of Columbus, Southeastern Ohio Legal Services, Legal Aid of 

Western Ohio, and Pro Seniors, Inc. 

______________________