FIFTH THIRD MORTGAGE COMPANY v. JOHN RANKIN, ET AL.
Case No. 11CA8
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
RELEASED 05/30/2012
[Cite as Fifth Third Mtge., Co. v. Rankin, 2012-Ohio-2806.]
FRENCH, J.
DECISION AND JUDGMENT ENTRY
John Rankin, Williamsport, Ohio, pro se appellant.
Melissa N. Meinhart and Thomas G. Widman, Manley Deas Kochalski LLC, Columbus, Ohio, for appellee.
FRENCH, J.
{1} Defendant-appellant, John Rankin (“Rankin“), appeals the Pickaway County Court of Common Pleas’ order confirming a sheriff‘s sale in this foreclosure action initiated by plaintiff-appellee, Fifth Third Mortgage Company (“Fifth Third“). Fifth Third moves this court for an order granting leave to supplement the record and to dismiss this appeal as moot. For the following reasons, we deny Fifth Third‘s motion and affirm the trial court‘s judgment.
I. BACKGROUND
{2} On July 29, 2010, Fifth Third filed a complaint against Rankin and various other defendants, requesting foreclosure on real property owned by Rankin and located at 324 South Court Street, Circleville, Ohio. Rankin filed a pro se answer, and Fifth Third subsequently moved for summary judgment. The trial court granted Fifth Third‘s
{3} On March 1, 2011, while Rankin I was pending in this court, the subject property sold at sheriff‘s sale. The same day, Rankin, who was the highest bidder, filed a motion to vacate the sheriff‘s sale for alleged noncompliance with the notice requirements of
{4} On August 5, 2011, Fifth Third moved the trial court for a finding of contempt to vacate the sheriff‘s sale and Confirmation Entry, for forfeiture of Rankin‘s deposit, and to preclude Rankin from bidding at a future sheriff‘s sale, based on Rankin‘s failure to remit the balance of the purchase price. The trial court granted Fifth Third‘s motion the same day. Rankin appealed the August 5, 2011 order in Fifth Third Mtge. Co. v. Rankin, 4th Dist. No. 11CA18 (“Rankin II“).
II. MOTION TO DISMISS
{5} Fifth Third filed a motion to dismiss in case No. 11CA18, but clearly intended the motion for this matter, case No. 11CA8. In its motion, Fifth Third states that this court granted it leave during oral argument, held April 17, 2012, to file a motion to dismiss. The April 17, 2012 oral argument was for case No. 11CA8. Fifth Third also argues that Rankin‘s assignments of error regarding the propriety of the Confirmation Entry, as set forth in case No. 11CA8, are moot because the trial court subsequently
{6} Concurrently with this decision, this court has granted Fifth Third‘s motion to dismiss case No. 11CA18, based on the trial court‘s lack of jurisdiction to vacate the sheriff‘s sale and Confirmation Entry while Rankin‘s appeal from the Confirmation Entry was pending in case No. 11CA8. In addition to dismissing case No. 11CA18, our order in that case vacates the trial court‘s August 5, 2011 order. Accordingly, the trial court‘s Confirmation Entry remains in effect, and the matter before us here, case No. 11CA8, is not moot. For these reasons, we deny Fifth Third‘s motion to supplement the record and dismiss this appeal.
III. ASSIGNMENTS OF ERROR
{7} We now turn to the merits of Rankin‘s appeal. Rankin asserts the following assignments of error:
- The Trial Court erred by issuing the Confirmation Entry *** and thereby created a collapse of due process by failing to require a strict adherence to [R.C.] 2329.26(A)(1)(a)(ii).
- The Trial Court erred by issuing the Confirmation Entry *** and thereby created a failure of due process by ignoring the requirement of complete service under [R.C.] 2329.26(A)(1)(a)(i).
- The Trial Court erred by issuing the Confirmation Entry *** and thereby created a failure of due process by refusing to set aside the sale as required by [R.C.] 2329.27(B)(1).
Because all of Rankin‘s assignments stem from the trial court‘s decision to confirm the sheriff‘s sale, we address the assignments of error together.
IV. DISCUSSION
{9}
(A) Lands and tenements taken in execution shall not be sold until all of the following occur:
(1)(a) Except as otherwise provided in division (A)(1)(b) of this section, the judgment creditor who seeks the sale of the lands and tenements or the judgment creditor‘s attorney does both of the following:
(i) Causes a written notice of the date, time, and place of the sale to be served in accordance with divisions (A) and (B) of Civil Rule 5 upon the judgment debtor and upon each other party to the action in which the judgment giving rise to the execution was rendered;
(ii) At least seven calendar days prior to the date of the sale, files with the clerk of the court that rendered the judgment giving rise to the execution a copy of the written notice described in division (A)(1)(a)(i) of this section with proof of service endorsed on the copy in the form described in division (D) of Civil Rule 5.
Division (A)(2) of that section requires the officer taking lands and tenements to give public notice of the date, place, and time of the sale by publication.
{10}
(A) Upon the return of any writ of execution for the satisfaction of which lands and tenements have been sold, on careful examination of the proceedings of the officer making the sale, if the court of common pleas finds that the sale was made, in all respects, in conformity with sections 2329.01 to 2329.61 of the Revised Code, it shall, within thirty days of the return of the writ, direct the clerk of the court of common pleas to make an entry on the journal that the court is satisfied of the legality of such sale ***.
Subject to divisions (B)(2) and (3) of this section, all sales of lands and tenements taken in execution that are made without compliance with the written notice requirements of division (A)(1)(a) of section 2329.26 of the Revised Code [and] the public notice requirements of division (A)(2) of that section *** shall be set aside, on motion by any interested party, by the court to which the execution is returnable.
***
(i) That the sale complied with the written notice requirements of division (A)(1)(a) of section 2329.26 of the Revised Code and the public notice requirements of division (A)(2) of that section ***, or that compliance of that nature did not occur but the failure to give a written notice to a party entitled to notice under division (A)(1)(a) of section 2329.26 of the Revised Code has not prejudiced that party;(ii) That all parties entitled to notice under division (A)(1)(a) of section 2329.26 of the Revised Code received adequate notice of the date, time, and place of the sale of the lands and tenements.
{12} “[I]t has long been recognized that the trial court has discretion to grant or deny confirmation: ‘Whether a judicial sale should be confirmed or set aside is within the sound discretion of the trial court.‘” Ohio Sav. Bank v. Ambrose, 56 Ohio St.3d 53, 55 (1990), quoting Michigan Mtge. Corp. v. Oakley, 68 Ohio App.2d 83 (1st Dist.1980), paragraph two of the syllabus. The trial court‘s exercise of discretion “must be bottomed upon the factual situations surrounding each sale.” Merkle v. Merkle, 116 Ohio App. 370, 372 (4th Dist.1961). We review a trial court‘s decision to confirm or
{13} Rankin maintains that the trial court erred by confirming the sheriff‘s sale because Fifth Third failed to comply with the notice requirements of
{14} Because Rankin inserts the concept of due process into each of his assignments of error, we briefly address the requirements of due process before addressing compliance with the requirements of
{15}
{16} Although Rankin has acted pro se throughout the vast majority of these proceedings, on January 31, 2011, attorneys Todd H. Neuman and Rick L. Ashton filed a motion, on behalf of Rankin, for reconsideration of the trial court‘s denial of Rankin‘s
{17} Fifth Third admits that its certificate of service does not indicate service of the Notice of Sale upon Neuman and/or Ashton. Nevertheless, Fifth Third also submitted to the trial court an email, dated February 17, 2011, addressed to Neuman and Ashton. The email, signed by a paralegal for Fifth Third‘s attorney, acknowledged the omission of the attorneys from the certificate of service and provided a copy of the Notice of Sale as an attachment. Fifth Third also represented that it mailed a copy of the Notice of Sale to Neuman and Ashton the same day, upon realizing it had not listed them on the certificate of service.
{18} Rankin disputes that Fifth Third mailed a copy of the Notice of Sale to Neuman and Ashton and contends that email service is insufficient under
{19} Rankin next argues that the trial court erred by confirming and refusing to vacate the sheriff‘s sale because Fifth Third did not file a copy of its Notice of Sale with the clerk of court at least seven days before the sale, as required by
{20} This court addressed the statutory basis for confirming a foreclosure sale in Rak-Ree Ents., Inc. v. Timmons, 101 Ohio App.3d 12 (4th Dist.1995), where we stated that
{21} Despite Rankin‘s contention that Rak-Ree compels reversal here, we find that case distinguishable, both on its facts and because a different statutory provision was at issue. Rak-Ree involved a failure of the publication requirement of
{23} Rankin maintains that, regardless of prejudice,
{24} Here, the Confirmation Entry constitutes a judicial finding that, although Fifth Third did not comply with
{25} We have routinely noted that a trial court‘s discretion whether to confirm a foreclosure sale must be evaluated in light of the factual circumstances of the particular
V. CONCLUSION
{26} For these reasons, we deny Fifth Third‘s motion to dismiss, overrule each of Rankin‘s assignments of error, and affirm the judgment of the Pickaway County Court of Common Pleas.
MOTION DENIED;
JUDGMENT AFFIRMED.
It is ordered that the MOTION IS DENIED and the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
* Brown, P.J. & Tyack, J.: Concur in Judgment and Opinion.
For the Court
BY:
Judith L. French, Judge *
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
* Susan D. Brown, P.J., Judith L. French, J., and G. Gary Tyack, J., of the Tenth Appellate District, sitting by assignment in the Fourth Appellate District.