CitiMortgage, Inc. v. Roznowski , 2012 Ohio 4901 ( 2012 )

[Cite as CitiMortgage, Inc. v. Roznowski, 2012-Ohio-4901.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
CITIMORTGAGE, INC. : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2012-CA-93
JAMES A. ROZNOWSKI, ET AL :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2008CV00894
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 22, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ERIN M. LAURITO PETER D. TRASKA
7550 Paragon Road Box 609306
Dayton, OH 45459 Cleveland, OH 44109
DAVID A. WALLACE RYAN HARRELL
KAREN A. CADIEUX Chamberlain Law Firm
280 North High Street, Ste. 1300 2765 Lancashire Road
Columbus, OH 43215 Cleveland Heights, OH 44106
[Cite as CitiMortgage, Inc. v. Roznowski, 2012-Ohio-4901.]
Gwin, P.J.
{¶1} Defendants-appellants James and Steffanie Roznowski appeal a judgment
of the Court of Common Pleas of Stark County, Ohio, entered in favor of plaintiff-
appellees CitiMortgage, Inc., the successor by merger to ABN AMRO Mortgage Group,
Inc. For the reasons that follow, we find we have no jurisdiction over the matter.
{¶2} This case came before us on an earlier appeal, in which we determined
there was no final appealable order. CitiMortgage Inc v. Roznowski, 5th Dist. No.
2011CA00124, 2012-Ohio-74. We found the earlier judgment did not set forth the dollar
amount of the balance due on the mortgage and did not reference any documents in the
record that did.
{¶3} In response, the trial court entered a judgment on February 1, 2012. The
court set forth the principal sum due plus the interest. In addition, it awarded “costs of
this action, those sums advanced by plaintiff for costs of evidence of title required to
bring this action, for payment of taxes, insurance premiums and expenses incurred for
property inspections, appraisal, preservation and maintenance.” The court did not enter
a dollar amount for any of those damages.
{¶4} Before addressing the merits of any appeal, we must first determine
whether we have jurisdiction over the matter. If the parties to the appeal do not raise
this jurisdictional issue, we may raise it sua sponte. Chef Italiano Corp. v. Kent State
University, 44 Ohio St.3d 86, 541 N.E.2d 64, (1989), syllabus by the court. With few
exceptions, the order under review must be a final appealable order. If an order is not
final and appealable, then we have no jurisdiction to review the matter and must dismiss
it. See General Accident Insurance Co. v. Insurance Co. of North America, 44 Ohio
Stark County, Case No. 2012-CA-93 3
St.3d 17, 20, 540 N.E.2d 266, (1989). An appellate court has jurisdiction to review and
affirm, modify, or reverse judgments or final orders of the trial courts within its district.
Ohio Constitution, Article IV, Section 3(B)(2) ; R.C. § 2505.02 .
{¶5} Ohio law recognizes an absolute right of redemption that is dual in nature,
arising both from equity and statute. Hausman v. Dayton, 73 Ohio St.3d 671, 676,
1995–Ohio–277, 653 N.E.2d 1190. In Hausman, the Ohio Supreme Court explained
that the mortgagor's equitable right of redemption is cut off by a decree of foreclosure.
Generally, a common pleas court grants the mortgagor a three-day grace period to
exercise the ‘equity of redemption,’ which consists of paying the debt, interest and court
costs, to prevent the sale of the property. Id. After the decree of foreclosure has been
entered, a mortgagor retains a statutory right of redemption under R.C. 2329.33 that
may be exercised at any time prior to the confirmation of sale by depositing the “amount
of the judgment” with all costs in the common pleas court.
{¶6} To redeem the property under R.C. 2329.33, “the mortgagor-debtor must
deposit the amount of the judgment with all costs specified.” Women's Federal Savings
Bank v. Pappadakes 38 Ohio St.3d 143, 527 N.E.2d 792 (1988), paragraph one of the
syllabus. The funds deposited must be available for use and division immediately. Id. at
146.
{¶7} In Huntington National Bank v. Shanker, Cuyahoga App. No. 72707, 1998
WL 269091, (May 21, 1998) , the court stated “It would be beyond reason to hold a trial
court or magistrate to a standard that insists they state a definite sum of redemption,”
and that “[a]s long as the redemption value of a foreclosed property is ascertainable
through normal diligence, the value, as stated by a finder of fact, will be upheld.”
Stark County, Case No. 2012-CA-93 4
Likewise, courts have held it could be impractical to require the mortgagee to state with
specificity the total amount due for additional charges because some of the damages
would be accruing continuously through the date of the sheriff's sale. First Horizon
Home Loans v. Sims,12th Dist. No. CA2009–08–117, 2010-Ohio-847 ¶ 25.
{¶8} In Roznowski I, we said:
“Generally, an order that determines liability but not damages is not a final,
appealable order. Walburn v. Dunlap, 121 Ohio St.3d 373, 2009–Ohio–
1221, 904 N.E.2d 863, at ¶ 31. There is an exception to this general rule,
however, ‘where the computation of damages is mechanical and unlikely
to produce a second appeal because only a ministerial task similar to
assessing costs remains.’ State ex rel. White v. Cuyahoga Metro.Housing
Auth. (1997), 79 Ohio St.3d 543, 546, 684 N.E.2d 72. Thus, if ‘only a
ministerial task similar to executing a judgment or assessing costs
remains' and there is a low possibility of disputes concerning the parties'
claims, the order can be appealed without waiting for performance of that
ministerial task. Id.Roznowski I at ¶25, citations sic.
{¶9} The valuation of the damages “for costs of evidence of title required to
bring this action, for payment of taxes, insurance premiums” may be mechanical and
ministerial, and ascertainable by normal diligence, and thus the court was not required
to list them in the judgment entry of foreclosure. However, we find the computation of
the dollar amount for “expenses incurred in property inspections, appraisal, preservation
and maintenance” are not easily ascertainable. This matter has been pending for nearly
Stark County, Case No. 2012-CA-93 5
five years, and the accrued expenses appellee claims could represent a substantial
sum. In order to exercise their right of redemption, appellants must know the amount of
money they must produce. Nothing in the record gives appellants or this court notice of
the amount.
{¶10} Appellants may dispute the necessity, frequency, and/or reasonableness of
the expenses, and any challenges to these expenses may be likely to produce a second
appeal before the sale. Further, these damages are not accruing continuously until the
sheriff’s sale. The final appraisals will be ordered by the sheriff, and appellee may or
may not be required to expend funds for further inspections or maintenance. If there is
a delay, occasioned, for example, by another appeal, the court can award subsequent
damages.
{¶11} Appellee represented at oral argument all of the above can be challenged
at the confirmation hearing. We do not agree. The proper time to challenge the
existence and the extent of mortgage liens is in the foreclosure action, not upon
confirmation of a judicial sale. National Mortgage Association v. Day, 158 Ohio App. 3d
349, 2004-Ohio-4514, 815 N.E. 2d 730. Confirmation involves only a determination of
whether a sale has been conducted in accord with law, such as whether the public
notice requirements were followed and whether the sale price was at least two-thirds of
lands appraised value. Ohio Savings Bank v. Ambrose, 56 Ohio St. 3d 53, 55, 563 N.E.
2d 1318 (1990). It is for this reason that only damages whose computation are
“mechanical and ministerial” can be addressed at a hearing on confirmation of the
sheriff’s sale.
Stark County, Case No. 2012-CA-93 6
{¶12} We find the judgment entry appealed from is not a final appealable order,
and the appeal is dismissed for lack of jurisdiction.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
WSG:clw 1010
[Cite as CitiMortgage, Inc. v. Roznowski, 2012-Ohio-4901.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CITIMORTGAGE, INC. :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JAMES A. ROZNOWSKI, ET AL :
:
:
Defendant-Appellant : CASE NO. 2012-CA-93
For the reasons stated in our accompanying Memorandum-Opinion, the appeal is
dismissed for lack jurisdiction. Costs to appellees.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE