Irwin Mortgage Corp. v. DuPee
966 N.E.2d 315
Ohio Ct. App.2012Background
- DuPee owned property located in Butler and Warren counties and defaulted on Irwin Mortgage's loan.
- Irwin Mortgage filed a foreclosure and reformation action in Butler County in 2006.
- There were bankruptcy stays that temporarily halted proceedings but were eventually lifted.
- Property was sold at sheriff's sale to Irwin Mortgage and sale was consolidated by a July 1, 2011 order confirming the sale and distributing proceeds.
- DuPee appeals arguing lack of certified complaint filing in Warren County meant lis pendens did not notify third parties and the sale was invalid; the court affirms the sale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lis pendens failed due to Warren County filing, invalidating the sale | DuPee argues lack of Warren County filing nullifies lis pendens | DuPee contends lis pendens notice was not proper without Warren filing | No error; lis pendens issue non-prejudicial to DuPee |
| Whether DuPee has standing to challenge lis pendens | DuPee seeks relief as party in foreclosing action | DuPee cannot be heard as he is the debtor, not third-party holder | DuPee lacks standing; no cognizable injury from Warren filing deficiency |
| Effect of lis pendens on the court's jurisdiction or sale validity | Lis pendens would bind third parties to pendency | Lis pendens is only notice, not a substantive right | Lis pendens is notice, not a control on merits; sale affirmed |
Key Cases Cited
- Cincinnati ex rel. Ritter v. Cincinnati Reds, L.L.C., 150 Ohio App.3d 728 (1st Dist. 2002) (lis pendens doctrine and notice purposes)
- Bank of New York v. Barclay, 2004-Ohio-1217 (10th Dist. 2004) (lis pendens requirements and notice duties under Civ.R. 3.27)
- Natl. Union Fire Ins. Co. v. Hall, 2003 Ohio-462 (2nd Dist. 2003) (elements of lis pendens showings reliance on real property description)
- ABN AMRO Mtge. Group, Inc. v. Roush, 2005-Ohio-1763 (10th Dist. 2005) (lis pendens does not affect merits and is non-substantive)
- Cincinnati Reds, L.L.C. v. Cincinnati ex rel., 782 N.E.2d 1225 ((implicit in opinion)) (context on notice and protection of plaintiff's interest)