Fantozz v. Cordle
2015 Ohio 4057
Ohio Ct. App.2015Background
- Erie County Treasurer Jo Dee Fantozz filed a tax foreclosure against owner John Cordle and lienholders in 2009 for tax delinquencies dating to 2005; default judgment and foreclosure were entered in April 2010.
- The property at 506 McKelvey St. was offered at multiple sheriff’s sales in 2010–2011 with no bidders; after the second sale Diana Young acquired Cordle’s interest by quitclaim deed in December 2010 and recorded it in August 2011.
- Young paid no taxes despite repeated notice and correspondence from the Treasurer offering opportunities to pay the delinquency and avoid forfeiture.
- After a third failed sheriff’s sale and continued nonpayment, the Treasurer applied for forfeiture; the property was forfeited to the state (April 2013) and later sold at auditor’s sale (December 2013).
- Young was served with a notice to vacate in January 2014 and filed a postjudgment motion to intervene and for relief from judgment six weeks later; the trial court denied intervention and her appeal followed.
Issues
| Issue | Appellant's Argument (Young) | Appellee's Argument (Fantozz/Treasurer) | Held |
|---|---|---|---|
| Whether Young could intervene postjudgment under Civ.R. 24(A) | She had an interest in the property and intervention was timely after she learned of forfeiture | Intervention was untimely; foreclosure judgment long final and Young knew or should have known of the action earlier | Denied — intervention untimely; no abuse of discretion |
| Whether lis pendens barred Young’s challenge | Young argued she could challenge the foreclosure/forfeiture despite her post-foreclosure acquisition | Treasurer argued Young acquired her interest during pendency and thus took subject to the existing judgment under lis pendens | Denied — lis pendens applies; interest acquired during pendency is bound by the decree |
| Whether the forfeiture phase constituted a new cause of action requiring new service under Civ.R. 4.1 | Young contended forfeiture was a distinct proceeding requiring new notice to nonparties | Treasurer argued statutory forfeiture is a continuation of the foreclosure process and Young received actual notice | Denied — forfeiture not treated as a new cause requiring service; Young had actual notice |
Key Cases Cited
- State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 696 N.E.2d 1058 (Ohio 1998) (timeliness of intervention reviewed for abuse of discretion and factors to consider)
- Triax Co. v. TRW, Inc., 724 F.2d 1224 (6th Cir. 1984) (factors for assessing timeliness of intervention)
- Cook v. Mozer, 108 Ohio St. 30, 140 N.E. 590 (Ohio 1923) (party acquiring interest during pendency takes subject to judgment)
- Bates v. Postulate Invests., L.L.C., 176 Ohio App.3d 523, 892 N.E.2d 937 (Ohio App. 2008) (lis pendens prevents challengers who acquired interest during pendency from avoiding the decree)
- Cincinnati ex rel. Ritter v. Cincinnati Reds, L.L.C., 150 Ohio App.3d 728, 782 N.E.2d 1225 (Ohio App. 2002) (transacting interests during litigation places those interests at risk and bound by the decree)