2018 Ohio 1080
Ohio Ct. App.2018Background
- Blisswood Village Home Owners Association filed foreclosure in Oct 2015 against Genesis Real Estate (record title holder) for unpaid condominium assessments, late fees, and attorney fees under R.C. 5311.18.
- Blisswood moved for summary judgment; the trial court granted summary judgment and entered a decree of foreclosure in Nov 2016.
- Trial court awarded Blisswood $5,355.50 in attorney fees (Dec 2016) and ordered fees paid from sale proceeds.
- Genesis appealed the foreclosure decree (Dec 2016) but did not seek a stay of the foreclosure, the sheriff’s sale, or distribution of proceeds.
- The property was sold at sheriff’s sale in Jan 2017 to Blisswood Village Reinvestment, LLC (BVR); the sale was confirmed and proceeds distributed in early 2017.
- Genesis later appealed the sale confirmation; the appeals were consolidated. Blisswood moved to dismiss the appeals as moot because proceeds were distributed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of underlying assessments supporting foreclosure | Blisswood: assessments and lien valid under declaration / R.C. 5311.18 | Genesis: assessments were invalid enforcement assessments and lacked required notice/hearing under R.C. 5311.081(C) | Dismissed as moot because property sold and proceeds distributed; no effective relief available |
| Board composition when assessments were imposed | Blisswood: board actions valid under declaration/bylaws | Genesis: board not properly constituted, so assessments invalid | Dismissed as moot for same reason; factual challenge not remediable after sale/proceeds distribution |
| Effect of purchaser status (Hicks issue) — whether purchaser is a third-party stranger | Blisswood: purchaser BVR is not shown to be a Blisswood-controlled shell; Hicks inapplicable | Genesis: Hicks requires vacatur/return of property because purchaser not a bona fide third-party | Hicks is distinguishable (different timing and purchaser); court rejects Genesis’s Hicks argument and finds no record support that BVR is a shell; appeal on foreclosure/sale dismissed as moot |
| Award of attorney fees | Blisswood: entitled to fees under R.C. 5311.18 and provided counsel affidavit and billing; fees reasonable | Genesis: trial court abused discretion; no independent evidence of reasonableness | Afforded; trial court did not abuse discretion in awarding $5,355.50 — evidence (fee affidavit, billing, local practitioner affidavit) sufficient |
Key Cases Cited
- Fannie Mae v. Hicks, 77 N.E.3d 380 (8th Dist.) (appellate decision addressing when a foreclosing plaintiff-purchaser may not be treated as a third-party purchaser and remedies when foreclosure judgment is reversed)
- Bittner v. Tri-County Toyota, Inc., 569 N.E.2d 464 (Ohio 1991) (trial court’s discretion in awarding attorney fees will not be disturbed absent an award that shocks the conscience)