ANNETTE MULBY, ET AL. v. ALAN M. POPTIC, ET AL.
No. 98324
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 6, 2012
[Cite as Mulby v. Poptic, 2012-Ohio-5731.]
Case No. CV-505225
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas
RELEASED AND JOURNALIZED: December 6, 2012
ATTORNEY FOR APPELLANT
J. Charles Ruiz-Bueno
Charles Ruiz-Bueno Co., LPA
36130 Ridge Road
Willoughby, OH 44094
ATTORNEY FOR APPELLEES
Stephen P. Leiby
Leiby Hanna Rasnick Towne
Evanchan Palmisano & Hobson, LLC
388 South Main St., Suite 402
Akron, OH 44311
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Alan Poptic (“Poptic“),1 appeals from the trial court‘s April 2012 judgment entry of foreclosure that granted summary judgment to plaintiffs-appellees, Annette Mulby, et al. (“the Mulbys“), and from the decree confirming the sale of the foreclosed property. Finding no merit to the appeal, we affirm.
{¶3} In May 2006, a second magistrate‘s decision was issued, to which Poptic again filed his оbjections. On August 30, 2006, the trial court overruled his objections and adopted the magistrate‘s decision, once again ordering the sale of the property. On October 2, 2006, Poptic appealed the trial court‘s order; this court dismissed Poptic‘s appeal as untimely, pursuant to
{¶4} Poptic filed a motion to stay the sale, which was denied. The property was sold at sheriff‘s sale in 2007; Poptic was the winning bidder. Poptic filed a motion to stay the confirmation of sale, which was denied. The
{¶5} In August 2008, Poptic filed a motion for relief from judgment from the order of foreclosure. A hearing was held on the motion in April 2009; the magistrate subsequently denied the motion, issuing a written decision. Objections were filed to the magistrate‘s decision, and a hearing was held on the objections in March and April 2011. In May 2011, the trial court overruled Poptic‘s objections, and denied Poptic‘s motion. In addition, the court granted the Mulbys’ motion for confirmation of sale. However, no сonfirmation of sale was issued.
{¶6} In March 2012, Poptic appealed from the trial court‘s denial of his motion for relief from judgment and the granting of the Mulbys’ motion to confirm the sale of property. This court dismissed the appeal for lack of a final appealable order and indicated that after nine years of litigation, the trial court had yet to issue а final, separate order of foreclosure and a final order of confirmation that comported with
{¶7} In April 2012, the trial court entered a separate order of foreclosure, adopting the magistrate‘s decision from May 2006, and an order of confirmation in compliance with
Standing
{¶9} In his first assignment of error, Poptic argues that the Mulbys never produced evidence that thе promissory note, from which the mortgage arises, was ever assigned to them and accordingly lacked standing to invoke the trial court‘s jurisdiction in this foreclosure action.
{¶10} Recently, in Fed. Home Loan Mtge. Corp. v. Schwartzwald, ___ Ohio St.3d ___, 2012-Ohio-5017, ___ N.E.2d ___, the Ohio Supreme Court held that standing in a foreclosure action is a “jurisdictional requirement” and that “standing to sue is required to invoke the jurisdiction of the common pleas court.” Id. at ¶ 22, 24. Furthermore, quoting New Boston Coke Corp. v. Tyler, 32 Ohio St.3d 216, 218, 513 N.E.2d 302 (1987), the Supremе Court stated, “the issue of standing, inasmuch as it is jurisdictional in nature, may be raised at any time during the pendency of the proceedings.” Accordingly, although Poptic did not raise a standing issue in his earlier appeals, because standing is jurisdictional and may be raised at any time, we address this assignment of error on its merits. See BAC Home Loans Servicing L.P. v. Komorowski, 8th Dist. No. 96631, 2012-Ohio-1341, ¶ 18 (“the issue of standing may be raised at any time during the pendency of the proceedings
{¶11} Our review of the record demonstrates that the evidence is clear that the successor trustees of the Boden Family Trust assigned the mortgage and “the indebtedness secured thereby” (which can only mean the note) to the Mulbys. Poptic admitted in his motion for summary judgment that the mortgage had been assigned to the Mulbys. Further, the successor trustees, who are defendаnts in this action, admitted in their answer that the note was assigned and transferred to the Mulbys. The assignment was filed prior to commencement of this suit. Accordingly, the Mulbys were holders and/or transferees of the note when the complaint was filed and, therefore, had standing to enforce the note.
{¶12} The first assignment of error is therefore overruled.
Confirmation of the Sheriff‘s Sale
{¶13} In his second assignment of error, Poptic argues that the trial court erred in confirming the sheriff‘s sale in its April 27, 2012 entry because the sheriff‘s sale proceeded pursuant to the August 2006 order that was not a final appealable order.
Upon 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, inclusive, of the Revised Code, it shall 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, and that thе officer make to the purchaser a deed for the lands and tenements. Nothing in this section prevents the court of common pleas from staying the confirmation of the sale to permit a property owner time to redeem the property or for any other reason that it determines is appropriate. In those instances, the sale shall bе confirmed within thirty days after the termination of any stay of confirmation.
The officer making the sale shall require the purchaser, including a lienholder, to pay within thirty days of the confirmation of the sale the balance due on the purchase price of the lands and tenements.
“While the statute speaks in mandatory terms, it has long been recognized that the trial сourt has discretion to grant or deny confirmation[.]” Ohio Sav. Bank v. Ambrose, 56 Ohio St.3d 53, 55, 563 N.E.2d 1388 (1990). The issue, then, is whether the trial court abused its discretion under the circumstances.
{¶15} Poptic argues that because the court‘s order of August 2006 overruling his objections and adopting the May 2006 magistrate‘s decision was not a final appealable order, the sheriff‘s sale is now a nullity. We disagree. Whether an order is aрpealable merely relates to this court‘s
{¶16} Accordingly, we find no abuse of discretion in the trial court‘s decision to confirm the sheriff‘s sale. Poptic‘s second assignment of error is overruled.
{¶17} Judgment affirmed.
It is ordered that appellees recovеr of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
COLLEEN CONWAY COONEY, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION.
COLLEEN CONWAY COONEY, P.J., CONCURRING IN JUDGMENT ONLY:
{¶19} Poptic admitted in his answer that the Mulbys are the owners and holders of the note. He never raised standing until his
{¶20} This court went too far in Poptic III in finding that the trial court had yet to issue a final, separate order of foreclosure. The August 2006 order constituted that finаl separate order that Poptic failed to appeal timely. He should not be allowed a six-year delay in appealing the order when his 33-day delay was held untimely.
{¶21} Furthermore, I find the recent decision in Fed. Home Loan Mtge. Corp. v. Schwartzwald to bе distinguishable. The question in that case was whether the lack of standing at the commencement of a foreclosure action may be cured by an assignment of the note and mortgage prior to the entry of judgment. Id. at ¶ 19. In the instant case, Poptic admitted in both his answer to the complaint and in his motion for summary judgment that the successor trustees of the Boden Family Trust assigned thе mortgage and “the indebtedness secured thereby” to the Mulbys.