IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
U.S. BANK NATIONALASSOCIATION, as trustee of THE BANC OF AMERICA FUNDING 2007-D, its successors in interest and/or assigns Respondent,

v. BLAIR LA MOTHE, Appellant. NO. 70140-1- DIVISION ONE

UNPUBLISHED OPINION FILED: May 12, 2014 C=3 o coo

Lau, J. — Blair La Mothe appeals a judgment and a decree offoreclosure entered in favor of U.S. Bank after a bench trial. For the first time on appeal, he contends U.S. Bank was not the real party in interest and lacked standing to seek a judicial foreclosure, and the trial court improperly admitted the note as a trial exhibit. Because the record shows La Mothe (1) conceded that U.S. Bank is the real party in interest, (2) failed to preserve his standing argument, and (3) failed to object to the note's admission at trial, we affirm the judgment and decree of foreclosure.70140-1-1/2

FACTS In 2005, La Mothe obtained a $700,000 loan from Wells Fargo, secured by a deed of trust encumbering his residential property. He defaulted on the loan in 2009. Wells Fargo endorsed the promissory note to U.S. Bank National Association, as trustee for a loan trust known as Banc of America Funding 2007-D. In May 2010, Wells Fargo assigned its beneficial interest under the deed oftrust to U.S. Bank. InAugust 

### 2011, U.S. Bank brought thisjudicial foreclosure action against LaMothe.1 Following a bench trial, the trial court enteredjudgment and a decree offoreclosure for U.S. Bank. In relevant part, the trial court found, "The promissory note is endorsed
... to Plaintiff," and there is "an Assignment of [the] Deed ofTrust to Plaintiff which was recorded
. .. ." Itthen concluded, "Pursuant to the terms ofthe note and deed of trust, Plaintiff is entitled to foreclose" and "[t]hecorrect party in interest was before the 

### court... by and through . . . Wells Fargo Bank, N.A., attorney in fact forPlaintiff." La Mothe assigned no error to the court's factualfindings or conclusions oflaw. LaMothe appeals. ANALYSIS La Mothe's sole assignment of error states, "TheJudge of the Superior Court committed reversible error in not dismissing the underlying Amended Complaint 

### because Respondent was not a real party in interest and lacked standing to seek a 1La Motheinitially defended the action pro se but hired counsel on the eve of trial. Attrial, defense counsel stated, "And so Ijust want to apologize that Iwas not able 

### to get thiscase into shape. Mr. La Mothe was—it's pretty hard to get a lawyer under these circumstances. I—mostlawyers would say, you know, Ican't get into this, but I felt it would be better if he had a lawyer, even one that was not completely prepared, 

### than to come in here on his own and try to resolve the case. So I've—I'm here and I'm 

### going to do the bestIcan, Your Honor." Report ofProceedings (Feb. 13, 2013) at8-9.70140-1-1/3 judicial foreclosure." Br. ofAppellant at 1. La Mothe contends the core issue is "[wjhether [U.S. Bank] was the real party in interest and/or had standing to initiate the foreclosure and whether the Amended Complaint should have been dismissed." Br. of Appellant at 1. For the reasons discussed below, we affirm. Standing La Mothe contends for the first time on appeal that the trial court erred in failing 

### to dismiss U.S. Bank's complaint for lack of standing.2 Implicitly acknowledging he failed to raise lack ofstanding below, La Mothe argues that standing is a jurisdictional 

### issue that"may be disputed atany stage ofa proceeding, even on appeal."3 Reply Br. ofAppellant at 3. We are not persuaded by thisjurisdiction claim. The argument 

### conflicts with controlling authority. In Trinitv Universal InsuranceCo. of Kansasv. Ohio Casualty Insurance Co., 176Wn. App. 185, 312 P.3d 976 (2013), Ohio argued lack of 

### standing means thetrial court lacked subject matterjurisdiction so thedefault order is void. We held that "in Washington, a plaintiff's lack of standing is not a matter of subject 

### matterjurisdiction." Trinity, 176Wn. App. at 199. We reasoned:



### 2Standing and real party in interest are "distinctdoctrines." Spraauev. Sysco Corp.. 97 Wn. App. 169, 176 n.2, 982 P.2d 1202 (1999). "Standing requires thatthe 

### plaintiffdemonstrate an injury to a legally protected right. The real party in interest is theperson who possessesthe right soughtto beenforced." Spraaue, 97 Wn. App. at 176 n.2: see also 14 Karl B. Tegland, Washington Practice: CivilProcedure § 11:2, 

### at380 (2d ed. 2009) ("Standing to sueis a separate doctrine [from CR 17(a) real party in interest] and ismost commonly used todetermine whether a party may raise a constitutional challenge to some governmental action."). 

### 3La Mothe's reply briefclaims U.S. Bank raised an "additional argument thatthe doctrine of res judicatafunctions as a waiver of the requirement that a plaintiffhave 

### standing " Reply Br. ofAppellant at3. Ourreview ofU.S. Bank's appellate brief shows U.S. Bank raised no res judicata issue on appeal.70140-1-1/4 

### A court enters a void orderonly when it lacks personaljurisdiction or subject matterjurisdiction over a claim. We use caution in characterizing an issue as 

### jurisdictional or ajudgment as void, because the consequences ofa court acting without subject matterjurisdiction "are draconian and absolute." 

### Trinity. 176Wn. App. at 198 (quoting Cole v. Harvevland. LLC. 163 Wn. App. 199, 205, 

### 258 P.3d 70 (2011)). We also observed that "the critical concept in determining whether a court has subject matterjurisdiction is the type of controversy." Trinitv, 176 Wn. App. at 199 (citing Cole. 163 Wn. App. at 209). We also observed: Ohio cites a footnote from a 2002 Washington Supreme Court opinion that says, "[Standing is a jurisdictional issue that can be raised for the first time on appeal." Int'l Ass'n of Firefighters, Local 1789 v. Spokane Airports. 146 Wn.2d 207, 212 n. 3, 45 P.3d 186, 50 P.3d 618 (2002). This is the type of "drive-byjurisdictional ruling" we recently declined to rely on in Cole. 163 Wn. App. at 208. Trinitv, 176 Wn. App. at 199 n.7 (alteration in original). We also cited our precedent in Ullery v. Fulleton. 162 Wn. App. 596, 256 P.3d 406 (2011). There, we explained that "article IV, section 6 of the Washington Constitution does not exclude any sort of causes from the jurisdiction of its superior courts, leaving Washington courts, by contrast with federal courts, with few constraints on their jurisdiction." Ullery, 162 Wn. App. at 604. Under Ullery, standing is a defense that may be waived by the defendant.4 Ullery, 162 Wn. App. at 604. Because "lack of standing is not a matter of subject matterjurisdiction," La Mothe's lack of standing claim is waived. Trinitv, 176 Wn. App. at 199; see also RAP 2.5(a); Ullery, 162 Wn. App. at 604.

4La Mothe's reply brief cites International Association of Firefighters and 

### SpokaneAirports v. RMA, Inc., 149Wn. App. 930, 939, 206 P.3d 364 (2009). La Mothe also argues that U.S. Bank "confuses jurisdictional standing with prudential standing." Reply Br. ofAppellant at 3. We disagree and adhere to our analysis in Trinitvand Ullery. While La Mothe acknowledges U.S. Bank's reliance on Trinity, we note that he never discusses or analyzes Trinitv or Ullery.70140-1-1/5

Real Party in Interest La Mothe also contends U.S. Bank was not a real party in interest under 

### CR 17(a) because a different party, Wells Fargo, held the note and deed of trust. We need not address this claim because, as noted above, La Mothe's counsel properly conceded the issue at oral argument before this court. We accept his concession. La Mothe advanced the opposite real-party-in-interest theory at trial and thus failed to 

### preserve the present argumentfor appeal.5 RAP 2.5(a). The claim alsofails because La Mothe assigned no error to the trial court'swritten finding, statingin part, "The 

### correct party in interestwas before thecourt. . . ."6 Unchallenged findings offact are verities on appeal.7 RAP 10.3(a)(4); RAP 10.3(g); Cowiche Canvon Conservancy v. Boslev, 118 Wn.2d 801, 808, 828 P.2d 549 (1992).


### 5At trial, La Mothe was asked by his lawyer, "Do youknow who isentitled to 

### collect money from you onthis loan?" Report ofProceedings (RP) (Feb. 13, 2013) at 87. La Mothe responded, "U.S. Bank." RP (Feb. 13, 2013) at 87. And later, during a discussion with La Mothe's counsel near the end oftrial, the court confirmed, "You're 

### saying U.S. Bank is the real party in interest." RP (Feb. 13, 2013) at 110. Counsel responded, "Yes." RP (Feb. 13, 2013) at 110. 

### 6Thecourt expressly found thatWells Fargo endorsed the original note and assigned the deed of trust to U.S. Bank: 

### "F. Wells Fargo Bank, N.A., executed anAssignment ofDeed ofTrustto Plaintiff 

### [U.S. Bank] which was recorded on May 25, 2010, under King County Recording Number 20100525001201. 

### "G. Plaintiff, through their attorney, broughttheoriginal promissory note tocourt 

## during the trial. The promissory note is endorsed byWells Fargo Bank, N.A. to Plaintiff. The correct party in interestwas before the court on February 13, 2013, by and through BrockWiggins, VP ofLoan Documentation atWells Fargo Bank, N.A., attorney in fact for Plaintiff." 

### 7In his reply brief, La Mothe argues he "timely appealed from the King County 

## SuperiorCourt's formal findings, conclusion,judgment, orderand decree offoreclosure and attorneyfee and costaward." Reply Br. ofAppellant at 1. This argumentis immaterial. It is undisputed that La Mothe timely filed his notice ofappeal.70140-1-1/6

CONCLUSION For the reasons discussed above, we affirm the judgment and decree of
foreclosure.

WE CONCUR: ^34L

# w J 

# Aicloih-^ <Y^ ^ox, J•