Freedom Mtge Corp. v. Boston ( 2016 )

[Cite as Freedom Mtge Corp. v. Boston, 2016-Ohio-7016.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
FREEDOM MORTGAGE CORP. )
)
PLAINTIFF-APPELLEE )
) CASE NO. 14 CO 0036
VS. )
) OPINION
RICHARD BOSTON and HILDA BOSTON ) AND
) JUDGMENT ENTRY
INTERVENOR-PLAINTIFFS- )
APPELLANTS )
CHARACTER OF PROCEEDINGS: Civil appeal of a Motion to Intervene in
the Court of Common Pleas of
Columbiana County, Ohio
Case No. 12 CV 289
JUDGMENT: Dismissed.
APPEARANCES:
For Plaintiff-Appellee Attorney Rick DeBlasis
120 East Fourth Street, Suite 800
Cincinnati, Ohio 45202
For Intervenor-Plaintiffs-Appellants Attorney Thomas Sanborn
3770 Starr Centre Drive
Canfield, Ohio 44406
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: September 22, 2016
[Cite as Freedom Mtge Corp. v. Boston, 2016-Ohio-7016.]
PER CURIAM.
{¶1} Appellants Richard and Hilda Boston filed an appeal of a judgment of
the Columbiana County Court of Common Pleas denying their motion to intervene in
a foreclosure action. In November 2012, Appellants had been the high bidders in a
sheriff's sale of foreclosed property located at 16312 Spring Valley Road in
Salineville, Ohio, but that sale was later vacated by the trial court. Appellants sought
to intervene in the foreclosure action to challenge the vacated order, but their motion
was denied, leading to a prior appeal, Freedom Mtge. Corp. v. Milhoan, 7th Dist. No.
13 CO 15, 2014-Ohio-881. The result of the prior appeal was that the case was
remanded for the court to accept the motion to intervene and to reconsider its ruling
on the motion to vacate. It appears, though, that during the course of that first
appeal, the issue under review became moot. Appellants had failed to seek a timely
stay of execution of the trial court judgment prior to the conclusion of a second
sheriff's sale and the confirmation of that sale by the trial court. Due to Appellants'
failure to timely obtain a stay in the prior appeal, the instant appeal is moot and is
therefore dismissed.
{¶2} On April 30, 2012, Freedom Mortgage Corporation ("the Bank") filed a
foreclosure action against Howard and Bonnie Milhoan. The Bank obtained a
judgment and decree in foreclosure on August 28, 2012. A sheriff's sale was held on
November 13, 2012, and Appellants were the high bidders. Prior to the sale being
confirmed, the Bank filed a motion to vacate the sale, which was granted on January
4, 2013. Appellants' deposit for the sale was ordered to be returned to them. On
February 13, 2013, the Bank issued notice of a new sheriff's sale to be held on
February 26, 2013.
{¶3} On February 22, 2013, Appellants filed a motion to intervene in the
action. The court held a phone conference on the motion, and denied the motion on
February 26, 2013. The second sheriff's sale went forward as scheduled, and the
Bank was the successful bidder. The Bank assigned its bid to Federal National
Mortgage Association ("Fannie Mae").
{¶4} Appellants filed a notice of appeal but did not file a motion for stay of
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execution. There being no stay of execution requested or granted, the trial court
confirmed the second sheriff's sale, and the deed to Fannie Mae was recorded June
12, 2013.
{¶5} On July 19, 2013, Appellants filed a motion for stay with the trial court,
which was denied. After the case was fully briefed, Appellants filed a motion for stay
with this Court, which was granted, because no party informed us of the confirmation
of sale and recording of deed. This Court issued its opinion on March 6, 2014.
Based on the record before us, the case was remanded to allow Appellants to
intervene and for the trial court to reconsider its ruling on the motion to vacate.
{¶6} On remand, the trial court issued a judgment entry declaring the case to
be moot and denying Appellants' request to intervene due to the court's inability to
render any relief. Appellants appealed this judgment.
Analysis
{¶7} The mere filing of a notice of appeal does not effectuate a stay of
execution of the judgment under review, nor does it prevent parties (or non-parties)
from continuing to act as if the previous trial court judgments and orders are valid and
enforceable. "If the appellant fails to obtain a stay of the judgment, the nonappealing
party has the right to attempt to satisfy its judgment, even though the appeal is
pending." Wiest v. Weigele, 170 Ohio App. 3d 700, 2006–Ohio–5348, 868 N.E.2d
1040 (1st Dist.), ¶ 12.
{¶8} Accordingly, the Bank properly continued to satisfy its foreclosure
judgment. By the time Appellants finally obtained a stay of execution, the property
had been resold at a second sheriff's sale, the sale was confirmed, and the deed was
recorded in the name of the new owner. Without a stay of execution, the trial court
was obligated to enforce the foreclosure judgment, including its confirmation of the
second sheriff's sale. These actions actually rendered our decision in the appeal
moot. Had these facts been properly brought to our attention, we would have
dismissed the matter at that time. Based on the record before us, we remanded.
{¶9} “In foreclosure cases, as in all other civil actions, after the matter has
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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.” Bankers Trust Co. of California, NA. v. Tutin, 9th
Dist. No. 24329, 2009–Ohio–1333, ¶ 16. "In the absence of the possibility of an
effective remedy, [an] appeal constitutes only a request for an advisory ruling from
the court. * * * The court will not perform a vain act when there is no real issue
presented in the appeal.” Cincinnati Gas & Elec. Co. v. Pub. Util. Comm., 103 Ohio
St.3d 398, 2004-Ohio-5466, 816 N.E.2d 238, ¶ 17-18. If the judgment is satisfied
prior to a stay being obtained, the appeal becomes moot. Hagood v. Gail, 105 Ohio
App.3d 780, 785, 664 N.E.2d 1373 (11th Dist.1995). The proper response to a moot
appeal is the dismissal of the appeal. Cincinnati Gas & Elec. Co., supra, at ¶ 28.
{¶10} Appeal dismissed. As the subject matter of this appeal is moot the
Clerk of Court shall release the $9,000 bond to Appellants.
{¶11} Copy to counsel and to the Clerk of Court.
DeGenaro, J., concurs.
Waite, J., concurs.
Robb, J., dissents.
{¶12} Judge Robb dissents and would allow the appeal to proceed through its
regular course, after which a merit decision should be issued as to whether the trial
court's judgment was correct.