535 N.E.2d 347 | Ohio Ct. App. | 1987
Madison Savings Bank, the predecessor in interest to the Central Trust Company, N.A. ("Central Trust"), filed the instant action in the trial court to recover the indebtedness of John E. Spencer, defendant-appellee ("Spencer"). Spencer's debts were secured by mortgages on two pieces of property and Central Trust initiated foreclosure proceedings.
Edward Sawyer, Jr., plaintiff-appellant ("Sawyer"), held a note from Spencer in the principal amount of $6,300. Prior to the filing of this action Spencer defaulted on the note, and subsequent to the filing of the foreclosure action, Sawyer obtained a judgment lien on Spencer's property. In order to protect his interests, Sawyer intervened in the foreclosure action.
The trial court granted Central Trust and Sawyer summary judgments. Before a sheriff's sale could be conducted, Spencer filed a Chapter 13 petition in the United States Bankruptcy Court, Southern District of Ohio. The bankruptcy court state the proceedings in the court below. Sawyer filed a notice of appearance in the bankruptcy court requesting that he and his attorney receive notice of the proceedings.
Spencer's petition was eventually *238 dismissed by the bankruptcy court for his failure to file a Chapter 13 statement and plan. Despite his notice of appearance, Sawyer claims he never received notice of the dismissal. An order reinstating the foreclosure action was filed in the court below, and Sawyer claims no notification of this development.
In short, the properties were sold without any prior notice to Sawyer, except for the publication notice required by statute. R.C.
The central issue is whether the holder of a judicial lien is entitled to personal notice of the sale by the due process of law provision of the United States Constitution. We hold that Sawyer was entitled to some form of personal notification complying withMennonite Bd. of Missions v. Adams (1983),
The controlling case is Mennonite Bd. of Missions, supra. In that case an Indiana statute allowed for a judicial sale of property for nonpayment of taxes by the owner. Notice by certified mail was required for the landowner, and publication notice was required for three consecutive weeks. After the sale, a two-year redemption period followed when the former owner or a mortgagee could redeem the property.
The Mennonite Board of Missions ("MBM") held a mortgage on a piece of property that was sold under the statute. MBM did not discover the sale until after the redemption period had run. The sale was challenged as a taking of property without due process of law, and MBM asserted that it was entitled to personal notification of the sale.
The United States Supreme Court agreed. The court held that since a mortgagee "clearly has a legally protected property interest, he is entitled to notice reasonably calculated to apprise him of a pending tax sale. * * *" (Citation omitted.)Id. at 798. Neither the personal notice to the landowner, nor the publication notice was deemed *239 sufficient to the mortgagee. The court stated:
"* * * Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, * * * if its name and address are reasonably ascertainable." (Emphasis sic.) Id. at 800.
Just as a mortgage is a protected property interest, so is a judicial lien. Armstrong v. United States (1960),
The lack of notice adversely affected the ability of Sawyer, as a party within the meaning of Mennonite Bd. of Missions, supra, to protect his interests. There was no opportunity for Sawyer to observe the sale to see if it met the statutory requirements. He was prevented from bidding which could have allowed him to purchase the property, or increased the price to where he might have received some proceeds from the sale. The sale extinguished Sawyer's lien completely. Finally, there can be no question that Sawyer's address was readily ascertainable since he was a party to the suit.
Accordingly, the judgment of the trial court is reversed and the cause is remanded for proceedings not inconsistent with this decision.
Judgment reversed and cause remanded.
SHANNON, P.J., and UTZ, J., concur.
"Lands and tenements taken in execution shall not be sold until the officer taking them gives public notice of the time and place of sale, for at least thirty days before the day of sale, by advertisement in a newspaper published in and of general circulation in the county. The court ordering sale may, in the order of sale, designate the newspaper in which such notice shall be published."
R.C.
"When the advertisement provided for in section