Cuyahoga Cty. Treasurer v. Holloway , 2022 Ohio 301 ( 2022 )


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  • [Cite as Cuyahoga Cty. Treasurer v. Holloway, 
    2022-Ohio-301
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    TREASURER OF CUYAHOGA
    COUNTY, OHIO,                                        :
    Plaintiff-Appellee,                  :
    No. 110433
    v.                                   :
    SHAWN HOLLOWAY, ET AL.,                              :
    Defendants-Appellants.               :
    JOURNAL ENTRY AND OPINION
    JUDGMENT: DISMISSED
    RELEASED AND JOURNALIZED: February 3, 2022
    Civil Appeal from the Cuyahoga County Court of Common Pleas
    Case No. CV-15-854999
    Appearances:
    Michael C. O’Malley, Cuyahoga County Prosecuting
    Attorney, and Hannah Singerman, Assistant Prosecuting
    Attorney, for appellee.
    Shawn Holloway, pro se.
    MARY J. BOYLE, J.:
    Defendant-appellant, Shawn Holloway (“Holloway”), pro se, appeals
    the trial court’s reinstatement of a vacated decree of foreclosure in favor of plaintiff-
    appellee, Treasurer of Cuyahoga County. For the reasons set forth below, we dismiss
    this appeal as moot.
    On November 30, 2015, the county filed a complaint in foreclosure of
    real property located at 2848 East 102nd Street, Cleveland, Ohio 44104, permanent
    parcel number 128-11-066, for delinquent real property taxes. On December 18,
    2015, Holloway answered the complaint.
    On November 22, 2016, the matter proceeded to a hearing before the
    magistrate. On November 30, 2016, the magistrate issued a decision with findings
    of fact, conclusions of law, and an order of foreclosure. On December 12, 2016,
    Holloway filed a pro se motion to “set aside” the magistrate’s decision. Holloway’s
    motion was essentially an objection to the magistrate’s decision. On December 14,
    2016, the trial court adopted the magistrate’s decision and entered a decree of
    foreclosure without ruling on Holloway’s objections.
    On December 30, 2016, Holloway filed notice of appeal in Treasurer
    of Cuyahoga Cty. v. Holloway, 8th Dist. Cuyahoga No. 105309, 
    2017-Ohio-8065
    .
    On January 20, 2017, the trial court denied Holloway’s motion to stay absent
    Holloway’s filing of a supersedeas bond.
    On March 10, 2017, the trial court issued an order of sale for
    April 10, 2017, and if the property did not sell, a second sale on April 24, 2017. On
    May 17, 2017, the county forfeited the property to the state of Ohio.
    On October 5, 2017, this court dismissed Holloway’s appeal for lack
    of a final appealable order because the trial court had not ruled on Holloway’s timely
    objections before adopting the magistrate’s decision. On March 30, 2018, the trial
    court reviewed the magistrate’s November 30, 2016 decision, found that it did “not
    properly reflect the record,” and vacated its December 14, 2016 decree of
    foreclosure.
    On April 4, 2018, the magistrate issued a revised decision with
    findings of fact, conclusions of law, and an order of foreclosure without objection
    from Holloway. On May 1, 2018, the trial court adopted the magistrate’s revised
    decision and reentered a decree of foreclosure.
    On July 6, 2018, the trial court issued orders of sale for August 6 and
    August 20, 2018. On August 7, 2018, the trial court ordered the sheriff to return the
    order of sale without execution. Attached to this order is the trial court’s finding that
    the property was sold in a forfeited land sale held on November 2, 2017.
    Nearly a year later, on July 24, 2019, the county moved to vacate the
    decree of foreclosure and dismiss the case, stating that Holloway had “redeemed the
    parcel by payment in full of all taxes, assessments, penalties, interest and other
    charges, if any, in accordance with [R.C.] 5721.25 * * *, together with all costs
    incurred in these proceedings.” The trial court granted the county’s motion on
    August 7, 2019.
    More than a year and a half later, on February 23, 2021, the county
    moved to reinstate the May 1, 2018 decree of foreclosure. In the motion, the county
    stated that it filed its July 24, 2019 motion to vacate “in error.” The county explained
    that the property had not sold in April 2017, was forfeited to the state, and later sold
    to a third party who paid the delinquent taxes.
    On March 19, 2021, the trial court granted the county’s motion to
    reinstate the foreclosure decree, finding that
    [the county] had previously moved to vacate the judgment of
    foreclosure on the mistaken belief that [Holloway] had redeemed the
    parcel. However, the taxes were brought current through adjustment
    due to forfeiture of the parcel to the state, along with payments made
    to the Treasurer by a subsequent bona fide purchaser. In order to
    remove the cloud on title to the parcel, the journal entry filed
    August 7, 2019 vacating the judgment of foreclosure and dismissing the
    case is vacated, set aside, and held for naught. The judgment of
    foreclosure entered May 1, 2018 is reinstated and remains in full force
    and effect.
    Holloway appeals this judgment,1 raising a single assignment of error:
    The trial court erred when it allowed [the county] to prevail on a Motion
    to Reinstate a Foreclosure Judgment outside of the legislative
    parameters expressly set forth in R.C. 2305.19, and by allowing counsel
    to withdraw without filing an answer motion, giving an extension of
    time to do so, or holding an inquiry hearing where counsel was recently
    disciplined for similar conduct. All in violation of [Holloway’s] right to
    due process of law as guaranteed under the Sixth and Fourth
    Amendment of the U.S. Constitution.
    In his sole assignment of error, Holloway argues that the trial court
    erred when it reinstated its May 1, 2018 foreclosure decree because the trial court,
    in effect, treated the county’s motion as a motion for reconsideration. The county
    argues that the trial court’s August 7, 2019 judgment entry vacating its May 1, 2018
    foreclosure decree was void because the August 7, 2019 judgment was based on a
    1 New counsel for Holloway filed a notice of appearance on March 31, 2021, and a
    notice of appeal on April 18, 2021. However, Holloway filed his appellate brief pro se.
    mistaken belief that Holloway had paid the delinquent taxes and redeemed the
    property when in fact the property had been forfeited to the state on May 17, 2017,
    and subsequently sold to a third party. Because the property has been sold, however,
    Holloway’s appeal is moot.
    R.C. 323.25, governing enforcement of tax liens, provides that
    foreclosure on unpaid tax liens proceed in the same manner as foreclosure on
    unpaid mortgages. Rokakis v. W. Res. Leasing Co., 8th Dist. Cuyahoga No. 95058,
    
    2011-Ohio-1926
    , ¶ 12. The same is true of foreclosure on unpaid liens of the state
    under R.C. 5721.18(A). Rokakis v. Bowman, 8th Dist. Cuyahoga No. 92950, 2010-
    Ohio-4666, ¶ 8.     R.C. 5723.01 requires property subject to foreclosure under
    R.C. 323.25 and 5721.18 to be forfeited to the state if that property remains unsold
    after it is twice offered for sale. After forfeiture, R.C. 5723.03 gives the former owner
    a right to redeem the property until the property is sold. See Jonke v. Rubin, 
    170 Ohio St. 41
    , 44, 
    162 N.E.2d 116
     (1959) (the right of redemption under R.C. 5723.03
    is lost upon the state’s sale of the property).
    In foreclosure actions, two judgments are appealable: the order of
    foreclosure and the confirmation of sale. CitiMortgage, Inc. v. Roznowski, 
    139 Ohio St.3d 299
    , 
    2014-Ohio-1984
    , 
    11 N.E.3d 1140
    , ¶ 39. Failure to timely appeal a
    foreclosure or forfeiture order bars any arguments pertaining to these orders.
    Treasurer of Cuyahoga Cty. v. Robshir Properties, L.L.C., 8th Dist. Cuyahoga
    Nos. 107056 and 107289, 
    2019-Ohio-535
    , ¶ 34. Once the property is sold in
    foreclosure or forfeiture, failure to timely appeal confirmation of the sale limits the
    former owner’s remedies because the law protects the property rights of the third-
    party purchaser, who retains title to the property. Blisswood Village Home Owners
    Assn. v. Euclid Community Reinvestment, L.L.C., 8th Dist. Cuyahoga No. 105854,
    
    2018-Ohio-1091
    , ¶ 16; Robshir Properties, L.L.C. at ¶ 38.
    When property is no longer recoverable, R.C. 2329.45 provides
    restitution as an alternative remedy if a foreclosure decree is reversed on appeal.
    Provident Funding Assocs., L.P. v. Turner, 8th Dist. Cuyahoga No. 100153, 2014-
    Ohio-2529, at ¶ 6. However, R.C. 2329.45 only applies if the appellant sought and
    obtained a stay of the distribution of the proceeds. 
    Id.
     If the appellant fails to obtain
    a stay, any appeal of the foreclosure decree is moot because “‘the matter has been
    extinguished through satisfaction of the judgment, the individual subject matter of
    the case is no longer under the control of the court[,] and the court cannot afford
    relief to the parties to the action.’” Blisswood Village Home Owners Assn. v. Genesis
    Real Estate Holdings Group, L.L.C., 8th Dist. Cuyahoga No. 105861, 2018-Ohio-
    1092, ¶ 13, quoting Bankers Trust Co. of California, N.A. v. Tutin, 9th Dist. Summit
    No. 24329, 
    2009-Ohio-1333
    , ¶ 16.
    In   the instant     case,   Holloway    appealed    the   trial   court’s
    December 14, 2016 foreclosure decree and moved for a stay but did not post a bond
    pursuant to Civ.R. 62(B). Therefore, the trial court denied Holloway’s motion. In
    addition, Holloway did not request a stay from this court pursuant to Civ.R. 62(D)
    and App.R. 7(A). While the appeal was pending, the trial court ordered sheriff’s
    sales on April 10 and April 24, 2017. The property did not sell. On May 17, 2017,
    pursuant to R.C. 5723.01, the court ordered the property to be forfeited to the state.
    Holloway did not appeal the court’s forfeiture decree. On November 2, 2017, the
    state sold the property to a third party, cutting off Holloway’s right to redeem the
    property under R.C. 5723.03. On October 5, 2017, this court dismissed Holloway’s
    appeal for lack of a final appealable order. After the matter returned to the trial
    court, the trial court vacated its December 14, 2016 foreclosure decree and entered
    a second foreclosure decree on May 1, 2018. Holloway did not appeal this second
    decree.
    On appeal, Holloway asks this court to remand the matter for
    dismissal with prejudice. Because the property has been sold, however, the matter
    has been extinguished through satisfaction of the foreclosure judgment. Even if we
    were to vacate the trial court’s reinstatement of its May 1, 2018 foreclosure decree,
    we can afford Holloway no effective relief because Holloway neither appealed nor
    obtained a stay of the court’s forfeiture and foreclosure orders. An appeal is moot
    if the appellate court can grant no relief. Robshir Properties, L.L.C., 8th Dist.
    Cuyahoga Nos. 107056 and 107289, 
    2019-Ohio-535
    , at ¶ 38; Genesis Real Estate
    Holdings Group, L.L.C., 8th Dist. Cuyahoga No. 105861, 
    2018-Ohio-1092
    , at ¶ 14-
    15; Euclid Community Reinvestment, L.L.C., 8th Dist. Cuyahoga No. 105854, 2018-
    Ohio-1091, at ¶ 18-19, citing Wells Fargo Bank, N.A. v. Cuevas, 8th Dist. Cuyahoga
    No. 99921, 
    2014-Ohio-498
    ; Rains, 8th Dist. Cuyahoga No. 98592, 
    2012-Ohio-5708
    ;
    Equibank v. Rivera, 8th Dist. Cuyahoga No. 72224, 
    1998 Ohio App. LEXIS 185
     (Jan.
    22, 1998).
    Accordingly, the instant appeal is dismissed as moot.
    It is ordered that the parties share equally the costs herein taxed.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27
    of the Rules of Appellate Procedure
    _____________________________
    MARY J. BOYLE, JUDGE
    MICHELLE J. SHEEHAN, P.J., and
    EMANUELLA D. GROVES, J., CONCUR