2013 Ohio 4918
Ohio Ct. App.2013Background
- Diane Polivchak obtained a cognovit judgment against James and David Polivchak and the Polivchak Co. and pursued foreclosure on company real property.
- A sheriff’s sale was scheduled for October 17, 2011, then rescheduled; a December 24, 2012 sale was eventually conducted after reappraisal.
- The property sold for $445,000 to North Pearl II, L.L.C. on December 24, 2012.
- Appellants moved to stay confirmation and vacate the sale based on Diane’s alleged failure to file a certificate of notice under Loc.R. 27 and on appraisal value disputes.
- The trial court overruled the motions and confirmed the sale on January 25, 2013.
- Appellants appeal asserting lack of proper notice under Loc.R. 27 and that the appraised value was unduly low; the appellate court affirms the trial court's decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of a filed certificate of notice voids sale confirmation | Polivchak argues Loc.R. 27 mandatory notice was not complied with. | Polivchak Co. contends the lack of a certificate is a technical defect with no prejudice shown. | Trial court did not abuse discretion; no prejudice from lack of certificate. |
| Whether the appraisal value supports vacating or rejecting the sale | Polivchak asserts appraised value was unduly low and should invalidate the sale. | Polivchak Co. contends appraisal undermines sale price; dispute over value. | Court did not abuse discretion; objection waived by failure to timely object and lack of credible evidence of higher value. |
Key Cases Cited
- Ohio Savs. Bank v. Ambrose, 56 Ohio St.3d 53 (1990) (trial court retains discretion in confirming sheriff's sale)
- Citimortgage, Inc. v. Hoge, 2013-Ohio-698 (8th Dist. 2013) (defects in objections to appraisal do not require reversal absent prejudice)
- PHH Mortgage Corp. v. Prater, 133 Ohio St.3d 91 (2012) (notice by email may suffice when otherwise proper notice given; due process not implicated by technical defects)
- Michigan Mtge. Corp. v. Oakley, 68 Ohio App.2d 83 (1980) (discretionary nature of sale confirmation)