Yemma v. Reed
2017 Ohio 1015
Ohio Ct. App.2017Background
- Treasurer filed tax foreclosure against record owner Lisa Reed for long-delinquent taxes on 128 S. Maryland Ave.; amount due (with costs) exceeded property value and county elected alternative redemption under R.C. 323.78.
- Service attempts at multiple addresses failed; service by publication ran three weeks and was completed; court entered foreclosure decree May 5, 2015 and title transferred to the county land reutilization corporation after the 28-day alternative redemption period.
- Mathew Turner filed a deed purporting to convey the property to him in July 2012 (not recorded because of delinquent taxes) and, on November 20, 2015, moved to intervene and alternatively sought Civ.R. 60(B) relief to redeem or assert tenant protections.
- Turner claimed he occupied/repairs the property, paid purchasers of tax certificates, and only learned of the foreclosure in October 2015; he proposed to enter a delinquent tax contract or invoke the Protecting Tenants at Foreclosure Act (PTFA).
- Treasurer opposed intervention as untimely and procedurally defective (no pleading per Civ.R. 24(C)); argued Turner knew of his interest in 2012, failed to pay taxes or record title, and PTFA did not apply (and had sunsetted after the relevant dates).
- Trial court denied post-judgment intervention and Civ.R. 60(B) relief; appellate court affirmed intervention denial and deemed the 60(B) motion moot because Turner was not a party.
Issues
| Issue | Plaintiff's Argument (Yemma/Treasurer) | Defendant's Argument (Turner) | Held |
|---|---|---|---|
| Timeliness of post-judgment intervention under Civ.R. 24(A) | Intervention untimely; Turner knew or should have known of interest in 2012 and waited 6.5 months after decree; prejudice and finality weigh against intervention | Intervention timely because Turner only learned of foreclosure in Oct 2015 and moved within months; Laviena supports post-judgment intervention in some circumstances | Denied — court found intervention after final judgment is unusual; factors (stage, delay since 2012, lack of compelling purpose) support denial |
| Failure to attach a pleading to motion to intervene (Civ.R. 24(C)) | Motion deficient because Civ.R. 24(C) requires an accompanying pleading per Civ.R. 7(A) | Procedural defect not excused; no cure before hearing | Denied — procedural ground independently supports denial |
| Meritorious defense / entitlement to relief under Civ.R. 60(B) (if allowed to intervene) | Court should not entertain 60(B) because Turner is not a party; even if considered, facts predate judgment and do not justify relief | Turner would show meritorious defense: ability to enter delinquent tax contract and/or PTFA protections as occupant/tenant | Moot — appellate court did not reach merits because Turner never became a party; additionally, filings failed to establish eligibility for delinquent tax contract or PTFA defense |
| Applicability of PTFA as defense to tax foreclosure | PTFA does not apply to tax foreclosures; sunset provisions mean protections expired for this foreclosure | PTFA applies (or should be read to protect a purchaser-occupant treated as tenant) and could prevent immediate transfer/eviction | Rejected — PTFA inapplicable here (and had sunset dates); Turner failed to show a bona fide tenancy or how PTFA would defeat foreclosure |
Key Cases Cited
- State ex rel. Merrill v. ODNR, 130 Ohio St.3d 30, 955 N.E.2d 935 (2011) (abuse-of-discretion standard for intervention reviewed; Civ.R. 24 construed liberally but timeliness controls)
- State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 696 N.E.2d 1058 (1998) (timeliness is primary consideration for intervention; post-judgment intervention is unusual)
- Triax Co. v. TRW, Inc., 724 F.2d 1224 (6th Cir. 1984) (factors for timeliness of intervention: stage, reasons, notice, prejudice, unusual circumstances)
- State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty., 121 Ohio St.3d 507, 905 N.E.2d 1192 (2009) (denial of intervention upheld where procedural requirements not met)
- State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106, 789 N.E.2d 203 (2003) (motions to intervene may be denied for failure to comply with Civ.R. 24(C))
- Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 656 N.E.2d 1277 (1995) (requirement to attach a pleading to intervention motion enforced)
- Mik v. Federal Home Loan Mtge. Corp., 743 F.3d 149 (6th Cir. 2014) (describing PTFA tenant protections in mortgage-foreclosure context)