Fifth Third Mtge., Co. v. Rankin
2012 Ohio 2806
Ohio Ct. App.2012Background
- Fifth Third Mortgage Company filed foreclosure against John Rankin for 324 South Court Street, Circleville, Ohio.
- Trial court granted summary judgment and issued a Decree in Foreclosure on December 6, 2010, which this court affirmed in Rankin I.
- Sheriff's sale occurred March 1, 2011; Rankin, the high bidder, moved to vacate for alleged noncompliance with notice requirements.
- April 8, 2011, the trial court entered a Confirmation Entry and on April 14, 2011 denied Rankin's motion to vacate; Rankin filed a timely Notice of Appeal.
- August 5, 2011, Fifth Third moved for contempt and related relief; the trial court granted, and Rankin appealed in Rankin II; this court ultimately denied the motion to supplement and dismissed related case 11CA18, affirming the trial court’s judgment in 11CA8.
- The court ultimately affirmed the trial court’s confirmation and declined to vacate the sale despite some notice deficiencies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Confirmation Entry was proper despite lack of strict compliance with R.C. 2329.26(A)(1)(a)(ii) | Fifth Third argues no prejudice from filing omission; substantial compliance. | Rankin argues lack of filing requires set aside under 2329.27(B)(1). | Confirmation upheld; no prejudice found; not an abuse of discretion. |
| Whether service of Notice of Sale complied with due process requirements | Fifth Third mailed Notice of Sale to Rankin and to attorneys; he had actual notice. | Rankin contends service to attorneys was required; email may be insufficient. | Not an abuse; actual notice to Rankin and proof of service to others supported due process. |
| Whether Fifth Third's filing of Notice of Sale with the clerk was timely | Fifth Third attempted filing; error in filing did not prejudice Rankin. | Failure to file with clerk seven days before sale undermines notice. | Lack of timely filing did not mandate setting aside; no prejudice shown. |
| Effect of confirmation under R.C. 2329.27(B)(3) and discretionary power to confirm | Confirmation may occur despite nonstrict compliance if no prejudice. | Strict compliance required by 2329.27(B)(1) absent prejudice. | Confirmation valid; lack of strict compliance did not prejudice Rankin; no automatic reversal. |
Key Cases Cited
- Ohio Sav. Bank v. Ambrose, 56 Ohio St.3d 53 (1990) (scope of trial court's discretion in foreclosure confirmations)
- Merkle v. Merkle, 116 Ohio App.3d 370 (1961) (abuse of discretion standard for sale confirmations)
- Rak-Ree Ents., Inc. v. Timmons, 101 Ohio App.3d 12 (1995) (examines notice/publication errors in sale proceedings)
- Citimortgage, Inc. v. Haverkamp, 2011-Ohio-2099 (12th Dist. Ohio) (final confirmation cures irregularities in sale)