2014 Ohio 2529
Ohio Ct. App.2014Background
- In Jan. 2007 Tamara Turner executed a $272,000 note secured by a mortgage on 20526 Byron Road, Shaker Heights; MERS held the mortgage as nominee for Home Advantage.
- Provident Funding, as holder of the note, sued the Turners in Nov. 2010 to foreclose.
- A magistrate ruled for Provident; the trial court adopted the magistrate’s decision and entered a judgment in foreclosure on June 26, 2013; the Turners appealed.
- While the appeal was pending, the property was sold at sheriff’s sale and the trial court confirmed the sale on Sept. 12, 2013; the Turners appealed the confirmation as well.
- The Turners never moved for a stay of the foreclosure judgment or a stay of distribution of sale proceeds during the appeals; the sale was carried out and proceeds distributed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal of the foreclosure judgment is moot after sale and distribution | Provident: Sale and distribution completed; appeal cannot restore property | Turners: Appeal challenges foreclosure judgment and confirmation (seeking reversal) | Appeal is moot because property sold and proceeds distributed and Turners did not obtain a stay |
| Whether R.C. 2329.45 restitution remedy saves the appeal absent a stay | Provident: R.C. 2329.45 provides remedy only if appellant obtained a stay of distribution | Turners: They sought reversal and could obtain restitution if judgment reversed | Court: R.C. 2329.45 does not apply because Turners failed to move for and obtain a stay of distribution; therefore restitution remedy unavailable |
Key Cases Cited
- None (opinion cites only Ohio appellate slip opinions and statutory authority)