2016 Ohio 7016
Ohio Ct. App.2016Background
- Freedom Mortgage filed a foreclosure against the Milhoans and obtained a foreclosure judgment in August 2012.
- A sheriff's sale was held November 13, 2012; Richard and Hilda Boston were the high bidders, but the sale was vacated and their deposit returned.
- A second sheriff's sale was scheduled for February 26, 2013. The Bostons filed to intervene on February 22, 2013; the trial court denied intervention on February 26, 2013 and the second sale proceeded.
- The Bostons appealed but did not obtain a stay of execution; the trial court confirmed the second sale and a deed to Fannie Mae was recorded June 12, 2013.
- On initial appeal the appellate court remanded to allow intervention and reconsideration of the motion to vacate; on remand the trial court found the matter moot and again denied intervention. The Bostons appealed that mootness ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Bostons could intervene after the second sheriff's sale and confirmation | Bank (Freedom) argued post-sale actions were valid because no stay was obtained; intervention could not undo completed, confirmed sale | Bostons argued they should be allowed to intervene to challenge the vacatur and prior proceedings | Appeal is moot — without a timely stay the sale was executed and confirmed, so court cannot grant effective relief |
| Whether the appeal should be dismissed as moot when the judgment has been satisfied | Bank argued the confirmed sale and recorded deed extinguished the subject matter, leaving no effective remedy | Bostons argued remand for merits was appropriate (and one judge dissented) | Court dismissed the appeal for mootness; returned bond to appellants |
Key Cases Cited
- Wiest v. Weigele, 170 Ohio App.3d 700 (2006) (notice that filing an appeal does not stay execution; nonappealing party may satisfy judgment absent a stay)
- Cincinnati Gas & Elec. Co. v. Pub. Util. Comm., 103 Ohio St.3d 398 (2004) (court will dismiss requests for advisory rulings where no effective remedy exists)
- Hagood v. Gail, 105 Ohio App.3d 780 (1995) (appeal is moot if judgment is satisfied before a stay is obtained)