Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of RevisionCincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision
{1} This is an appeal from a decision of the Board of Tax Appeals (“BTA“) in a real property valuation case. The BTA affirmed the reduction ordered by the Hamilton County Board of Revision (“BOR“), which was based on the price paid by Fenco Development Company in a foreclosure sale. The Cincinnati School District Board of Education (“school board“) contends that the sale price was not indicative of value because the foreclosure sale did not qualify as an arm‘s-length transaction. Additionally, the school board argues that the corporate taxpayer‘s president engaged in the unauthorized practice of law during the BTA hearing and that such conduct raised a jurisdictional bar to the BTA‘s decision.
{2} On the jurisdictional issue, we disagree with the school board. Once the filing of a valid complaint or notice of appeal vests jurisdiction in the board of revision or the BTA, a later instance of the unauthorized practice of law during the proceedings does not retroactively divest the tribunal of jurisdiction.
{3} We do agree, however, that the record shows a foreclosure sale that does not establish the property‘s value pursuant to
Facts
{4} On March 30, 2007, Craig Fennel, president of Fenco Development Company, an S corporation, filed a complaint on behalf of the company against the auditor‘s valuation of a 30,600-square-foot apartment building that the company had acquired as of February 27, 2006. The auditor had assigned a true value of $479,600 for tax year 2006; Fenco claimed that the property‘s value was equal to the sale price of $135,000, the price Fenco paid the United States Department of Housing and Urban Development (“HUD“) at a foreclosure auction. The BOR held a hearing on September 10, 2007, at which Fennel testified.
{5} Fennel stated that the property had been vacant for two years. Although the property had been in contract shortly before his company‘s purchase, the winning bidder could not close. Fennel outbid two other auction bidders at $135,000, and at the hearing, he offered the HUD settlement statement and a document titled “Terms and Requirements of Foreclosure Sale —
{6} In contrast, the auditor submitted a “Real Estate Department Report” prepared by one of its staff appraisers, opining that “no sufficient claim or documentation has been presented to reduce the subject property to the $135,000 sought by the property owner.” Although the appraiser agreed that the condition of the property was “deplorable,” she testified at the BOR hearing that the conveyance-fee statement indicated a foreclosure sale, “which does not indicate a market sale.”
{7} The BOR characterized the evidence as showing a run-down property that had proved difficult to sell through auction, concluding that the sale price indicated the value of the property under the circumstances.
{8} The school board appealed to the BTA, which held its hearing on March 4, 2009. Fennel appeared and presented four exhibits: photographs documenting the run-down condition of the property; the auditor‘s notification for tax year 2008 updating the property value to $136,350 from $135,000; and two HUD settlement statements, the first relating to an attempted sale for $506,000, and the second relating to Fenco Development Company‘s purchase in February 2006.
{9} Fennel testified that the first settlement statement showed an attempted sale for $506,000, and he explained that the photographs documented the building‘s need for renovation before tenant occupancy: throughout the building‘s 37 units, the copper had been completely stripped, every kitchen and bathroom had been destroyed, the street-side windows were boarded up, and all
{10} In its decision, the BTA noted that an arm‘s-length sale must be voluntary and also that
{11} The school board has appealed, and we now reverse.
Analysis
{12} The BTA is responsible for determining factual issues, but we ” ‘will not hesitate to reverse a BTA decision that is based on an incorrect legal conclusion.’ ” Satullo v. Wilkins, 111 Ohio St.3d 399, 2006-Ohio-5856, 856 N.E.2d 954, ¶ 14, quoting Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino (2001), 93 Ohio St.3d 231, 232, 754 N.E.2d 789. The school board presents two legal issues, one concerning jurisdiction, and one on the merits.
The BTA and the BOR had jurisdiction to render their decisions in this case
{13} First, we address the school board‘s contention that a jurisdictional impediment arose in the context of the BTA hearing. Jurisdictional objections typically raise an issue of law for resolution by the court. See Toledo v. Levin, 117 Ohio St.3d 373, 2008-Ohio-1119, 884 N.E.2d 31, ¶ 26, fn. 3; Toledo Pub. Schools Bd. of Edn. v. Lucas Cty. Bd. of Revision, 124 Ohio St.3d 490, 2010-Ohio-253, 924 N.E.2d 345, ¶ 14, fn. 2. According to the school board, Craig Fennel, who is president of Fenco but not a lawyer, engaged in activity at the hearing that amounts to the unauthorized practice of law.
{14} At the outset, Fennel did prepare and submit the valuation complaint as an officer of the corporate owner, an activity that the school board concedes is permissible pursuant to Dayton Supply & Tool Co., Inc. v. Montgomery Cty. Bd. of Revision, 111 Ohio St.3d 367, 2006-Ohio-5852, 856 N.E.2d 926, syllabus. At the BTA hearing, however, Fennel went beyond testifying about the property and presented documentary evidence. The school board also asserts that Fennel advanced specific legal contentions. Under Dayton Supply & Tool, the school board insists that these activities constituted the unauthorized practice of law and that the unlawful conduct somehow bars the BTA‘s jurisdiction.
{15} We find it unnecessary to determine whether Fennel‘s actions at the BTA hearing constituted the unauthorized practice of law in this context. That is so because the school board admits that Fennel could validly file the valuation complaint, and that filing established the jurisdiction of the BOR to consider and rule upon the complaint. When the school board filed its notice of appeal at the BTA, legal counsel prepared and submitted the notice of appeal, and that event invoked the BTA‘s jurisdiction to review the BOR decision and issue a merits decision of its own.
{16} The school board advances the proposition that when someone engages in the unauthorized practice of law at a hearing, that act divests the tribunal of its jurisdiction. But the school board does not cite and we do not find any authority to support that proposition. Once jurisdiction has been vested in an administrative tribunal by the proper filing of a complaint or notice of appeal, a
{17} For the foregoing reasons, we conclude that the school board has shown no basis for finding an absence of jurisdiction at the BTA. We therefore turn to the merits issue.
A sale of foreclosed property by HUD does not qualify as an arm‘s-length transaction because, absent contrary evidence, foreclosure sales are not “voluntary”
{18}
{19} On the other hand, the “price for which such real property would sell at auction or forced sale shall not be taken as the criterion of its value.”
{20} In deciding the present case, the BTA applied
{21} It is undisputed and fully documented that this sale was a foreclosure sale under the auspices of HUD. As a general matter, foreclosure sales reflect a strong impetus to liquidate the property in order to obtain cash to satisfy one or more creditors. On the one hand, this motivation is generally recognized as constituting a type of duress — though the compulsion to sell quickly may be greater or less in any particular case. See Dublin Senior Community Ltd. Partnership v. Franklin Cty. Bd. of Revision (1997), 80 Ohio St.3d 455, 458, 687 N.E.2d 426 (price owner paid for property at sheriff‘s sale could not qualify as arm‘s-length sale price under
{22} More generally, the circumstances of a foreclosure sale deprive the sale of its arm‘s-length character for purposes of
{23} In spite of the foregoing considerations, the BTA expressed its view that the “public sale was carried out voluntarily by the seller.” Cincinnati School Dist. Bd. of Edn., BTA No. 2007-A-1196, 2009 WL 1999014, *4. Viewed as a finding of fact, the statement would ordinarily merit a high degree of deference on appeal. See Olentangy Local Schools Bd. of Edn. v. Delaware Cty. Bd. of Revision, 125 Ohio St.3d 103, 2010-Ohio-1040, 926 N.E.2d 302, ¶ 15 (court will affirm BTA‘s factual determinations “if the record contains reliable and probative support” for them). But when the record is devoid of evidence to support the BTA‘s findings, those findings must be set aside on appeal. Worthington City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 124 Ohio St.3d 27, 2009-Ohio-5932, 918 N.E.2d 972, ¶ 27, citing NFI Metro Ctr. II Assoc. v. Franklin Cty. Bd. of Revision (1997), 78 Ohio St.3d 105, 107, 676 N.E.2d 881; Gen. Motors Corp. v. Cuyahoga Cty. Bd. of Revision (1996), 74 Ohio St.3d 513, 515-516, 660 N.E.2d 440.
{24} We hold that the record does not contain reliable and probative evidence to support the BTA‘s finding that HUD‘s sale of the property at issue qualified as “voluntary.” Four factors compel us to draw that conclusion.
{25} First, the documentation of the sale on its face refers to the sale as a “foreclosure.” Such a sale falls under the rubric of a “forced sale” that may not be regarded as the “criterion of * * * value” of the property pursuant to
{26} Second, the BTA did not specifically state what evidence it relied upon in finding that the HUD sale was voluntary. The evidence regarding the exposure of the property to the public and the competitive bidding process did not rebut the usual presumption that a foreclosure sale does not furnish the “criterion of * * * value” for the property.
{27} Third, the BTA failed to explain how the HUD sale in the present case differs from the HUD sales in earlier decisions, all of which the board found did not indicate the value of the property. See Helfrich v. Licking Cty. Bd. of Revision (July 29, 2008), BTA No. 2007-N-414, 2008 WL 3198139, *4, affirmed, Helfrich v. Licking Cty. Bd. of Revision, Licking App. No. 08CA0098, 2009-Ohio-982, and cases cited therein.
{28} Specifically, the BTA in Helfrich described HUD transactions in the following terms: the federal agency serves as a “guarantor of loans which are made by a mortgage lending institution to a mortgagor property owner,” so that when the lending institution forecloses on the defaulting owner, the lender “obtains title to the property, often as a result of judicial sale,” after which the lender transfers title to HUD “for the amount of the Guarantee.” Id. at * 3, quoting Matic v. Mahoning Cty. Bd. of Revision (Dec. 11, 1992), BTA No. 1990-H-1114, 1992 WL 380954, * 4; see also TSM Partners, Inc. v. Montgomery Cty. Bd. of Revision (Feb. 18, 2005), BTA No. 2003-V-1825, 2005 WL 434444, * 3; ESA Park, Inc. v. Mahoning Cty. Bd. of Revision (Apr. 29, 1994), BTA No. 92-M-812, 1994 WL 169656, * 4; Blocksom v. Columbiana Cty. Bd. of Revision (Apr. 29, 1994), BTA Nos. 93-H-609 and 93-M-795.
{29} In those earlier cases, the BTA found that the recited circumstances precluded considering a HUD sale as “voluntary as that term is used in Walters,” inasmuch as HUD, “not ordinarily a property owner,” obtains the property “under duress, and obviously seeks to divest itself of the property for at least the amount of its guarantee.” Matic, BTA No. 90-H-1114, 1992 WL 380954, * 4. The BTA did not explain why the reasoning of its prior cases involving HUD sales would not apply to the present case.
{30} Finally, the BTA‘s reliance on certain other decisions that make reference to foreclosure is not persuasive, because those cases involve a more remote connection between the foreclosure and the sale. See Mills v. Lucas Cty. Bd. of Revision (Apr. 29, 1994), BTA No. 1992-Z-553, 1994 WL 169691, * 3 (sale by private entity that acquired the property from foreclosure and then sold it to buyer was at arm‘s length); Murray Hill Properties L.P. v. Franklin Cty. Bd. of Revision (Sept. 19, 1997), BTA No. 1996-A-1005, 1997 WL 594195, * 4 (same); Nicholson Cleveland Terminal Co. v. Cuyahoga Cty. Bd. of Revision (July 12, 1985), BTA Nos. 81-G-373 and 81-G-374, 1985 WL 22980, * 8 (sale of real property in connection with a liquidation pursuant to an agreement with a secured creditor was an arm‘s-length transaction where no foreclosure proceedings had been instituted); Beljon v. Portage Cty. Bd. of Revision (Aug. 1, 1997), BTA No. 96-T-996, 1997 WL 453119, * 4 (pendency of foreclosure proceedings and unsuccessful sheriff‘s sale during extended negotiations with the buyer did not make the ultimate sale involuntary); Bedford Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision (Jan. 3, 1997), BTA Nos. 95-T-275 and 95-T-276, 1997 WL 17825, * 4 (where there was no foreclosure action against the seller, no distressed sale, and the property was not part of a bankruptcy estate, the mere fact that a third-party developer was in bankruptcy did not make the sale involuntary).
The fact that a foreclosure sale involves an auction does not make the sale an arm‘s-length transaction
{31} Citing Walters, 47 Ohio St.3d 23, 546 N.E.2d 932, the BTA opined that despite the explicit prohibition in
{32} Walters does not control this case. Walters involved an auction sale but not a foreclosure auction sale. Walters, 47 Ohio St.3d at 23, 546 N.E.2d 932. As a result, our holding in Walters that the sale qualified as an arm‘s-length transaction does not apply here. Because the present case involves a foreclosure, the sale price may not be regarded as an arm‘s-length transaction under
{33} Moreover, the BTA‘s reliance on its own decisions addressing auction sales is unpersuasive, because the cases do not involve foreclosure auctions, and because the BTA fails to explain why it decided the HUD-sale cases differently in light of the fact that they too involve auction sales. See Matic, BTA No. 90-H-1114, 1992 WL 380954, * 3 (acknowledging evidence that sale occurred at auction); ESA Park, Inc., BTA No. 92-M-812, 1994 WL 169656, * 2; TSM Partners, Inc., BTA No. 2003-V-1825, 2005 WL 434444, * 1.1
{34} To sum up, the BTA decision must be reversed because the sale of the property at issue by HUD to Fenco Development Company constituted a foreclosure sale, which is presumptively not at arm‘s length and which has not been shown to be voluntary.
Conclusion
{35} For the foregoing reasons, the BOR and the BTA erred by adopting the sale price as the value of the property. Apart from the sale price, the record did not contain sufficient evidence for the BTA to perform an independent valuation of the property. Accordingly, we reverse the decision of the BTA and
Decision reversed.
BROWN, C.J., and LUNDBERG STRATTON, O‘DONNELL, and CUPP, JJ., concur.
PFEIFER, O‘CONNOR, and LANZINGER, JJ., concur in part and dissent in part.
PFEIFER, J., concurring in part and dissenting in part.
{36} The majority opinion states, “A foreclosure sale usually does not qualify as an arm‘s-length transaction because the sale occurs under the compulsion that the property be liquidated for the benefit of creditors. Moreover, the finding of the Board of Tax Appeals (‘BTA‘) in this case that the foreclosure sale was voluntary is not supported by reliable and probative evidence * * * .”
{37} I disagree with this conclusion for two simple reasons. First, the foreclosing party is the United States Department of Housing and Urban Development, a giant federal entity that cannot be compelled to do anything. If it sold a property at auction, it did so because it wanted to, not because it was forced to. Second, the BTA‘s decision was supported by the unrebutted testimony of the purchaser, who stated that the auction was nationally advertised and involved at least two other bidders.
{38} Furthermore, the BTA stated that the board of education in this case “presented no evidence or witnesses in support of its position that the BOR
{39} The BOR reviewed all the facts before it and concluded that the sale price was a true indication of value, even though the property had been sold at auction. Based on the record before it, the BTA upheld the valuation, concluding that the auction had been an arm‘s-length transaction. I agree that, under the circumstances of this case, the auction was an arm‘s-length transaction. I would affirm the decision of the Board of Tax Appeals.
O‘CONNOR and LANZINGER, JJ., concur in the foregoing opinion.
David C. DiMuzio, Inc., David C. DiMuzio, and Jennifer B. Antaki, for appellant.
Cooper & Elliott, L.L.C., Rex H. Elliott, Charles H. Cooper, and John C. Camillus, for appellees Fenco Development Company and Craig Fennel.