DANIEL R. YEMMA, TREASURER, OF MAHONING COUNTY, OHIO v. LISA REED aka, LISA A. REED, et al.
CASE NO. 16 MA 0015
IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, MAHONING COUNTY
March 20, 2017
2017-Ohio-1015
Hon. Carol Ann Robb, Hon. Cheryl L. Waite, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2014 CV 2545. JUDGMENT: Affirmed.
For Defendant-Appellant: Atty. Bruce M. Broyles, 5815 Market Street, Suite 2, Boardman, Ohio 44512
{1} Appellant Mathew Turner appeals the decision of the Mahoning County Common Pleas Court denying his motion to intervene in a tax foreclosure action filed by Appellee Daniel R. Yemma as Treasurer of Mahoning County, Ohio. If he is successful on intervention, Appellant also contends the court abused its discretion in alternatively denying his motion for relief from the foreclosure decree. For the following reasons, the trial court‘s decision denying Appellant‘s motion to intervene is affirmed. As such, the motion for relief from judgment need not be addressed.
STATEMENT OF THE CASE
{2} On October 8, 2014, the Treasurer filed a tax foreclosure action against Lisa Reed, the record owner of property located at 128 S. Maryland Avenue in Youngstown. The action was brought under
{3} Certified mail service was attempted at Ms. Reed‘s tax mailing address (on South Turner Road) and an alternate address (on Barrington Drive). Both were unsuccessful. An attempt was then made at an address on Rosemont Avenue, which was returned with the notation “refused.” The summons and complaint were then sent by regular mail to the Rosemont address.
{4} On January 28, 2015, the assistant prosecutor representing the Treasurer filed an affidavit for service by publication, citing
{6} On May 5, 2015, the court issued a decree of foreclosure. The court found: the property qualified as nonproductive land under
{7} The sheriff was ordered to prepare a deed at the end of the 28-day alternative redemption period if the property was not redeemed. The decree announced that unless the defendant or any other party in interest caused to be paid the amount due and the costs of the action prior to the expiration of the 28-day alternative redemption period, the equity of redemption shall be extinguished and title to the property shall be transferred to Mahoning County Land Reutilization Corporation without any further confirmation by the court. See
{8} The property was not redeemed within the 28-day alternative redemption period, which expired on June 2, 2015. Consequently, title to the property was transferred to Mahoning County Land Reutilization Corporation.
{9} On November 20, 2015, Appellant Mathew Turner filed a motion to intervene in the action claiming he was the owner of the property. The motion stated:
{10} Appellant‘s affidavit attested that he purchased the property from Lisa Reed on July 28, 2012 for $5,000. He attached a copy of a notarized deed. In the deed, Lisa Reed listed 128 S. Maryland Avenue as the property she was selling and as her address. The deed noted the sale of the property was subject to existing taxes and contained an instruction to mail tax statements to Matt Turner at 128 S. Maryland Avenue. Appellant‘s affidavit also stated:
After I received the Deed from Lisa Reed I went to the Mahoning County Courthouse and attempted to record the Deed. A representative of the [sic] Mahoning County would not accept the Deed for recording and stated that I could not record the Deed as there were real estate taxes owed on the real property. I then began to pay the owners of the tax certificates for the delinquent Real Estate taxes; and I paid entities known as Net Relations, SAFE, and OKT LI. (Paragraph numbers omitted).
{11} Appellant said he hung curtains, started repairs to the house, and kept personal belongings at the premises. For instance, he said he had property in the yard and driveway, such as a camper. He said he was unaware of the foreclosure litigation until October 2015, when he saw a van from Mahoning County Land Reutilization Corporation in the driveway and decided to call to ascertain why. Appellant‘s affidavit explained: “If I am allowed to, I intend to bring the real estate taxes current by entering into a written contract for the repayment of delinquent real estate taxes.”
{12} We note this affidavit was attached to a
{13} Appellant‘s motion for relief from judgment said he was the owner who would have been named a defendant in the foreclosure action if a county representative had not prevented him from recording his deed due to past due taxes. He also said he would have received notice if service had been attempted at the property address, stating: the Treasurer failed to visit the property; a visit would have provided knowledge the property was occupied; and any unknown occupant should have been made a party to the action. Appellant‘s motion claimed entitlement to relief under
{14} The Treasurer filed a memorandum in opposition to both motions. As to intervention, the Treasurer argued the motion to intervene should be denied based on the following considerations: it was not accompanied by a pleading as required by
{15} Alternatively, in opposing the motion for relief from judgment, the Treasurer argued
{16} Even assuming Appellant attempted to record the deed and was rejected, the Treasurer notes Appellant could have filed a mandamus action against the recorder or recorded an affidavit of facts relating to title. See
{17} Regarding the PTFA, the Treasurer responded: Appellant claims to be the owner, not a tenant; Appellant failed to show a “bona fide lease or tenancy” under the act; the act deals with mortgage foreclosures, not tax foreclosures; the act‘s sunset date passed by the time of the May 5, 2015 foreclosure decree and the June 15, 2015 property transfer; and the act calls for notice based upon the date the title is transferred by the foreclosure action.
{18} The trial court scheduled a hearing for January 6, 2016. On January 8, 2016, the court overruled the motion to intervene and the motion for relief from judgment. Appellant filed a timely notice of appeal from this judgment.
ASSIGNMENT OF ERROR
{19} Appellant‘s sole assignment of error provides: “The trial court abused its discretion in denying the motion to intervene and the motion for relief from judgment.”
{20} We begin with the denial of the motion to intervene. Appellant cites
Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant‘s ability to protect that interest, unless the applicant‘s interest is adequately represented by existing parties.
{22} In that case: a gunshot victim sued a shooter; the shooter submitted a claim to his insurer; the shooter‘s insurer filed a declaratory judgment action against him urging there was no duty to defend or indemnify the shooter due to an intentional act; and the trial court entered default judgment in favor of the insurer after the shooter failed to answer. State Farm Fire & Cas. Co. v. Laviena, 7th Dist. No. 04-MA-176, 2005-Ohio-6601, ¶ 2-3. Ten days later, the victim filed a motion to intervene and a motion for relief from judgment. Id. at ¶ 4. The magistrate permitted intervention but denied relief from judgment. Id. The trial court sustained the victim‘s objections to the magistrate‘s decision, granted the motion for relief from judgment, and vacated the default judgment. Id. at ¶ 5.
{23} The insurer appealed, arguing the trial court abused its discretion in granting relief from judgment as the victim failed to demonstrate a meritorious defense. Id. at ¶ 7. We disagreed, noting the
{24} Notably, the decision on the motion to intervene was not before this court in Laviena, which was an appeal from the subsequent decision to vacate a judgment. In any event, a trial court‘s granting of a motion to intervene in one case does not translate into precedent that a motion to intervene must be granted in another case. Factually, we note the post-judgment difference between 10 days and 6.5 months. Additionally, discretionary review can properly result in varying results among an array of different cases.
{25} As the parties agree, the standard of review of a trial court‘s decision on a motion to intervene is abuse of discretion. State ex rel. Merrill v. ODNR, 130 Ohio St.3d 30, 2011-Ohio-4612, 955 N.E.2d 935, ¶ 41, citing State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 503, 696 N.E.2d 1058 (1998), fn. 1.
{26} The Ohio Supreme Court emphasizes the opening phrase in
{27} In relation to the first factor, “Intervention after final judgment has been entered is unusual and ordinarily will not be granted.” State ex rel. First New Shiloh Baptist Church, 82 Ohio St.3d at 503-504. On a post-judgment motion, an additional consideration can be the propriety of the trial court‘s judgment in the case. Id. at 504 (“Finally, it appears that even if appellants had been granted leave to intervene, the court of appeals’ judgment granting the writ was appropriate.“). As to the second factor, the purpose of intervention should be compelling. Id. (where intervention would result only in reconsideration of prior issues, it is not compelling).
{28} This case involves a post-judgment motion to intervene. It was filed 6.5 months after the foreclosure decree was journalized. A separate confirmation order was not required as the title was ordered to transfer and vest upon the expiration of 28 days from the court‘s order. See
{30} Appellant produced a deed whereby he claims to have purchased the property in mid-2012. Yet, he paid no property taxes to the county thereafter, and apparently taxes were already delinquent at the time he purchased the property. Service was made on the record owner by publication after an effort to serve the record owner at her tax mailing address and two other addresses failed. An affidavit listing the assistant prosecutor‘s efforts to search for another alternate address for the record owner was provided. The suit was advertised for three consecutive weeks as per
{31} Appellant knew from the beginning that the deed under which he claimed title had never been recorded. No property owner provided the Treasurer with a change of tax mailing address as required by
{32} Next, Appellant‘s motion to intervene expressed his purpose for intervention was to file a motion for relief from judgment after which he would seek to redeem the property by entering into a written contract for repayment of delinquent taxes pursuant to
{33} However, the statute requires one opportunity to enter a delinquent tax contract with the Treasurer and only when a person owns and occupies residential real property and the property does not have an outstanding tax lien certificate (or judgment of foreclosure) against it.
{34} The motion to intervene filed by Appellant‘s attorney says Appellant “began residing in the real property * * *.” Yet, Appellant‘s affidavit merely speaks of property in the yard and driveway (including a camper) and says he moved personal belongings into the house and was making repairs. It does not say he occupied the property or it was physically inhabited as a dwelling. See, e.g.,
{35} We also note that Appellant did not mention the property‘s soundness. Pursuant to
{36} Although the above analysis would pertain to Appellant failing to set forth operative facts in support of a meritorious defense under his
{37} A less compelling reason for his requested intervention is expressed in the motion for relief from judgment and reiterated on appeal as his second argument in support of a meritorious defense.2 The remaining meritorious defense raised in Appellant‘s brief is he would avail himself of the federal PTFA if the motion for relief from the foreclosure judgment is granted. See Protecting Tenants at Foreclosure Act of 2009, Pub.L. No. 111-22, Section 701-704, 123 Stat. 1632, 1661 (formerly codified at
{38} As the Treasurer emphasizes, Appellant claims to be the owner, not a tenant. Appellant replies that since he was not permitted to record his deed, he should at least be considered a tenant and his $5,000 purchase price can be considered rent as required for a bona fide tenancy under the Section 702(b)(3) of the PTFA.
{39} The parties dispute whether the PTFA applies to tax foreclosures. The Treasurer urges it only applies to foreclosures on mortgages as it is part of a larger act dealing with the prevention of mortgage foreclosures. In addition, the PTFA requires a bona fide lease or tenancy, which only exists “if the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant” plus two other elements. Section 702(b)(1).
{40} Regardless, the PTFA provided for notice to vacate to a bona fide tenant and a right to occupy the premises until the end of the lease term in the case of a bona fide lease. Section 702(a)(1)-(2). See also Mik v. Federal Home Loan Mtge. Corp., 743 F.3d 149, 157 (6th Cir.2014) (“The PTFA protects tenants who reside in properties that are subject to foreclosure by imposing certain obligations on successors in interest to foreclosed properties.“). Appellant does not explain how the PTFA could provide a defense to a foreclosure action or a reason to intervene in the action.
{42} The foreclosure decree here was entered on May 5, 2015, and the property transfer occurred after the 28-day alternative redemption period (starting on the May 5 journalization of the decree). Consequently, Appellant‘s citation to the PTFA does not set forth operative facts showing he has a meritorious defense to present if relief from foreclosure were to be granted and does not provide a compelling reason for intervention more than six months after the foreclosure decree.
{43} “Intervention after final judgment has been entered is unusual and ordinarily will not be granted.” State ex rel. First New Shiloh Baptist Church, 82 Ohio St.3d at 503-504. Considering all of the facts and circumstances of this case pertinent to the intervention motion, the trial court properly exercised its discretion in denying Appellant‘s motion to intervene.
{44} The trial court‘s decision is also supported procedurally. On the same day Appellant filed a motion to intervene, he filed a motion for relief from judgment and an affidavit. No pleading was ever filed to accompany the motion to intervene. As the Treasurer points out,
{45}
There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer
contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Civ.R. 14 ; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.
Notably, the prior version of
{46} Motions to intervene are regularly denied (and/or the denial upheld) due to the failure to attach a pleading as required by
{47} The Treasurer raised this failure below when responding to Appellant‘s motion to intervene. However, Appellant did not seek to correct the failure prior to the scheduled hearing on the motion or prior to the subsequent ruling on the motion; nor does Appellant address the omission on appeal. In accordance, the trial court‘s decision denying Appellant‘s motion to intervene is upheld on this ground as well. See id.
{48} As the Treasurer points out, if Appellant is not permitted to intervene, then his motion for relief from judgment under
{49} Due to this language, “a person or entity who is neither a party nor a legal representative of a party may not properly obtain relief from a judgment by way of
{50} For all of these reasons, the trial court‘s judgment is affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.