CITIZENS BANK, NA, Plаintiff-Appellant, v. KIRK A. LEEK et al., Defendants-Appellees.
Case No. 17 CO 0031
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT COLUMBIANA COUNTY
June 28, 2018
[Cite as Citizen‘s Bank v. Leek, 2018-Ohio-2813.]
Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.
Civil Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2014 CV 466
OPINION AND JUDGMENT ENTRY
JUDGMENT: Reversed and Remanded
Atty. Christopher F. Parker, Goranson, Parker & Bella, Co., LPA, 405 Madison Ave., Suite 2200, Toledo, Ohio 43604, for Plaintiff-Appellant and
Atty. Andrew R. Zellers, Richard G. Zellers & Associates, Inc., 3810 Starrs Centre Dr., Canfield, Ohio 44406 for Defendants-Appellees.
Dated: June 28, 2018
{¶1} Plaintiff-Appellant Citizens Bank, N.A. appeals the decision of the Columbiana County Common Pleas Court confirming a foreclosure sale to a third-party purchaser after finding the bank had no right to redeem the property. The appeal revolves around the language in
{¶2} For the following reasons, this court concludes
{¶3} In 2014, the bank filed a complaint in foreclosure against Kirk Lee as he defaulted on a promissory note with $157,549 remaining duе. The note was secured by the property at 25823 State Route 62 in Beloit. A decree in foreclosure was entered on March 21, 2017. A notice of sheriff‘s sale was filed in March 2017, but the sale was canceled at the bank‘s request. In May 2017, the bank reinitiated the order of sale. A June 15, 2017 notice of sheriff‘s sale was filed stating: the property wаs appraised at $90,000; the sale would be conducted on July 11, 2017 at 10:00 a.m.; and if the property was not sold at the first sale, a second sale would be held on July 25, 2017 at 10:00 a.m. with no minimum bid. The advertised notice recited the same. As to the second sale, this notice also stated: “The property shall be sold to the highest bidder without regard to the minimum bid but subject to all relating costs, allowances, and real estate taxes.”
{¶4} There were no bids at the first sale. At the second sale on July 25, 2017, the property was sold for $5,000 to a third-party purchaser Lorie Applegate (who filed the Appellee‘s Brief in this appeal). That same day, Attorney Grimm filed a motion to set aside the sale on behalf of the bank stating he failed to appear at the sale as the bank‘s independent contractor due to a scheduling error; he also stated the sale price was inadequate. The next day, he filed a supplemental brief in support stating if the court rejected the motion to set aside the sale, the court should permit the bank to exercise its statutory right of redemption (and initially sought permission to do so by credit bid).
{¶5} On August 7, 2017, the bank filed a notice of redemption pursuant to
{¶6} On August 22, 2017, the trial court denied the motion to set aside the sale, finding the sale was made in conformity with
{¶7} The bank filed a timely notice of appeal. The trial court granted a stay of execution of its August 22, 2017 judgment pending appeal. Before setting forth the arguments рresented on appeal, we set forth the pertinent statutes and how they relate to the case at bar.
RESIDENTIAL FORECLOSURE SALE STATUTES
{¶8} “Except as otherwise provided in this section or sections 2329.51 and 2329.52 of the Revised Code, no tract of land shall be sold for less than two-thirds the amount of the appraised value as determined pursuant to sectiоn 2329.17 of the Revised Code.”
When a residential property is ordered to be sold pursuant to a residential mortgage loan foreclosure action, and the sale will be held at a physical location and not online, and if the property remains unsold after the first auction, then a second auction shall be held and the property shall be sold to the highest bidder without regard to the minimum bid requirement in section 2329.20 of the Revised Code, but subject to section 2329.21 of the Revised Code relating to costs, allowances, and real estate taxes.
(Emphasis added.)
{¶9} A second auction was held here without regard to the minimum bid requirеment in
In sales of residential properties taken in execution or order of sale that are sold at an auction with the minimum bid pursuant to division (B) of section 2329.52 of the Revised Code, the judgment creditor and the first
lienholder each have the right to redeem the property within fourteen days after the sale by paying the purchasе price. The redeeming party shall pay the purchase price to the clerk of the court in which the judgment was rendered or the order of sale was made. Upon timely payment, the court shall proceed as described in section 2329.31 of the Revised Code, with the redeeming party considered the successful purсhaser at the sale.
(Emphasis added to disputed language.)
ASSIGNMENT OF ERROR
{¶10} The bank‘s sole assignment of error provides:
“THE TRIAL COURT ERRED AS A MATTER OF LAW IN ITS INTERPRETATION OF R.C. 2329.311 AND R.C. 2329.52(B) FINDING THAT PLAINTIFF, THE FIRST SECURED CREDITOR, COULD NOT EXERICSE ITS STATUTORY RIGHT OF REDEMPTION AND THEREAFTER CONFIRMING A SALE TO A THIRD PARTY IN VIOLATION OF THE STATUTORY RIGHT OF REDEMPTION.”
{¶11} The bank asks this court to conduct a de novo review of the legal issue of statutory interpretation. The bank asserts an absolute right of redemption under
{¶12} The third-party purchaser filed an Appellee‘s Brief. Initially, we note her brief addresses two issues: the statutory issue regarding redemption and the trial court‘s decision denying the motion to set aside the sale. The bank asked to exercise its right of redemption if the court overruled the motion to set aside the salе. The court overruled the motion and also refused to allow the bank to redeem the property as the court found the statutory right did not exist in this case. The bank only appeals the decision denying redemption. The bank does not appeal the trial court‘s denial of its motion to set aside the sale, which motion was filed on the day of sale and raised as grounds a scheduling error of the bank‘s independent contractor and an insufficient sale price. The subject of the appeal is clear from the bank‘s brief, and the bank‘s reply confirms it is not contesting the trial court‘s decision denying the motion to set aside the sale but is only contesting the refusal to permit the bank to redeem the property under
{¶13} As to the issue presented by the bank on appeal, the third-party purchaser agrees we are to conduct a de novo review and contеnds the plain language of
{¶14} The parties agree the interpretation of the statute is a question of law to be reviеwed de novo. See State v. Pountney, __ Ohio St.3d __, 2018-Ohio-22, __ N.E.3d __, ¶ 20. Under a de novo standard of review, we review the case independently and give no deference to the trial court‘s decision. See, e.g., Diley Ridge Med. Ctr. v. Fairfield Cty. Bd. of Revision, 141 Ohio St.3d 149, 2014-Ohio-5030, 22 N.E.3d 1072, ¶ 10. When analyzing a statute, the court must apply the legislative intent as manifested in the words of the statute. Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872, ¶ 12. “Statutes that are plain and unambiguous must be applied as written without further interpretation.” Id. ”
{¶15} “Rules for construing the language * * * may be employed only if the statute is ambiguous.” Proctor, 115 Ohio St.3d 71 at ¶ 12 (such as “expressio unius“). Ambiguity means the statutory provision is “capable of bearing more than one meaning.” State ex rel. Clay v. Cuyahoga Cty. Med. Examiner‘s Office, __ Ohio St.3d __, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 17. The “in pari materia” rule of statutory construction (where statutes relate to the same general subject matter) can only be applied “where some doubt or ambiguity exists in the wording of a statute.” Id. at ¶ 17, 20 (analyzing a statutory division that did not cite the statute which the party asked to be considered “in pari materia“). See also
{¶16} Where the statutory division at issue specifically cites another statute, it is “incorporating by reference” the other statute, and the other statute must be considered in determining plain language. See, e.g., General Motors Corp. v. Kosydar, 37 Ohio St.2d 138, 146, 310 N.E.2d 154 (1974) (“use tax statute, incorporates by reference the sales tax exceptions” in a different statute). Otherwise, words would be improperly eliminated from the text of the statute. See generally State ex rel. Carna v. Teays Valley Loc. Sch. Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d 193, ¶ 18 (accord significance and effect to every word, phrase, sentence, and part of the statute).
{¶17} “Words and phrases shall be read in context and construed аccording to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”
{¶18} Under the plain language of
{¶20} If
would have no meaning. The statute would not function in any manner. A statute is presumed to have a meaning.
{¶21} The trial court believed the statute provided a right of redemption only when the sale occurred at an auction with a set minimum bid above zero dollars under
{¶22} In summary, the statutory redemption right in
{¶23} In accordance, the trial court‘s judgment is reversed, and the case is remanded with instructions to proceed in accordance with this opinion and as instructed by
Donofrio, J., concurs.
Waite, J., concurs.
For the reasons stated in the Opinion rendered herein, the assignment of error is sustained and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Columbiana County, Ohio, is reversed. We hereby remand this matter to the trial court with instructions to proceed in accordance with this opinion and as instructed by
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.