IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

U.S. BANK NATIONAL ASSOCIATION,

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UNPUBLISHED OPINION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

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Lau, J. — Blair La Mothe appeals a judgment and a decree of foreclosure 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.
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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 of trust to U.S. Bank. In August

2011, U.S. Bank brought this judicial foreclosure action against La Mothe.1 Following a

bench trial, the trial court entered judgment and a decree of foreclosure 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 of Trust to Plaintiff which was

recorded . .. ." It then concluded, "Pursuant to the terms of the note and deed of trust,

Plaintiff is entitled to foreclose" and "[t]he correct party in interest was before the

court... by and through . . . Wells Fargo Bank, N.A., attorney in fact for Plaintiff." La

Mothe assigned no error to the court's factual findings or conclusions of law. La Mothe

appeals.

ANALYSIS

La Mothe's sole assignment of error states, "The Judge 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 Mothe initially 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 this case into shape. Mr. La Mothe was—it's pretty hard to get a lawyer under

these circumstances. I—most lawyers would say, you know, I can'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 best Ican, Your Honor." Report of Proceedings (Feb. 13, 2013) at 8-9.
70140-1-1/3

judicial foreclosure." Br. of Appellant 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 of standing below, La Mothe argues that standing is a jurisdictional

issue that "may be disputed at any 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 Kansas v. Ohio

Casualty Insurance Co., 176 Wn. App. 185, 312 P.3d 976 (2013), Ohio argued lack of

standing means the trial court lacked subject matter jurisdiction so the default order is

void. We held that "in Washington, a plaintiff's lack of standing is not a matter of subject

matter jurisdiction." Trinity, 176Wn. App. at 199. We reasoned:

2Standing and real party in interest are "distinct doctrines." Spraauev. Sysco

Corp.. 97 Wn. App. 169, 176 n.2, 982 P.2d 1202 (1999). "Standing requires thatthe

plaintiff demonstrate an injury to a legally protected right. The real party in interest is

the person who possessesthe right sought to be enforced." Spraaue, 97 Wn. App. at

176 n.2: see also 14 Karl B. Tegland, Washington Practice: Civil Procedure § 11:2,

at 380 (2d ed. 2009) ("Standing to sue is a separate doctrine [from CR 17(a) real party

in interest] and is most commonly used to determine whether a party may raise a

constitutional challenge to some governmental action.").

3La Mothe's reply brief claims U.S. Bank raised an "additional argument that the

doctrine of res judicatafunctions as a waiver of the requirement that a plaintiff have

standing " Reply Br. of Appellant at 3. Our review of U.S. Bank's appellate brief

shows U.S. Bank raised no res judicata issue on appeal.
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A court enters a void order only when it lacks personal jurisdiction or subject

matter jurisdiction over a claim. We use caution in characterizing an issue as

jurisdictional or a judgment as void, because the consequences ofa court acting

without subject matter jurisdiction "are draconian and absolute."

Trinity. 176 Wn. 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 matter jurisdiction 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-by jurisdictional

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 matter jurisdiction," 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.

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

Spokane Airports v. RMA, Inc., 149 Wn. App. 930, 939, 206 P.3d 364 (2009). La Mothe

also argues that U.S. Bank "confuses jurisdictional standing with prudential standing."

Reply Br. of Appellant at 3. We disagree and adhere to our analysis in Trinitv and

Ullery. While La Mothe acknowledges U.S. Bank's reliance on Trinity, we note that he

never discusses or analyzes Trinitv or Ullery.
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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 also fails because

La Mothe assigned no error to the trial court's written finding, stating in part, "The

correct party in interest was before the court. . . ."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 hislawyer, "Do you know who is entitled to

collect money from you on this 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 of trial, 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.

6The court 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 an Assignment of Deed of Trust to Plaintiff

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

Number 20100525001201.

"G. Plaintiff, through their attorney, brought the original promissory note to court

during the trial. The promissory note is endorsed by Wells Fargo Bank, N.A. to Plaintiff.

The correct party in interest was before the court on February 13, 2013, by and through Brock Wiggins, VP of Loan 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 Superior Court's formal findings, conclusion, judgment, order and decree of foreclosure

and attorney fee and cost award." Reply Br. of Appellant at 1. This argument is

immaterial. It is undisputed that La Mothe timely filed his notice of appeal.
70140-1-1/6

CONCLUSION

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

foreclosure.

WE CONCUR:

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