JP Morgan Chase Bank v. Ritchey

[Cite as JP Morgan Chase Bank v. Ritchey, 2018-Ohio-1887.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
JP MORGAN CHASE BANK AS : OPINION
TRUSTEE, ON BEHALF OF FIRST
FRANKLIN MORTGAGE LOAN TRUST :
2004-FF10 ASSET-BACKED CASE NO. 2017-L-129
CERTIFICATES, SERIES 2004-FF10, :
Plaintiff-Appellee, :
- vs - :
SAUNDRA M. RITCHEY, et al., :
Defendants-Appellants. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 06 CF 001121.
Judgment: Affirmed.
Charles V. Gasior and Laura C. Infante, Clunk, Paisley, Hoose Co., LPA, 4500
Courthouse Boulevard, Suite 400, Stow, OH 44224 (For Plaintiff-Appellee).
A. Clifford Thorton, Jr., PDC Building, 3659 Green Road, #305, Beachwood, OH 44122
(For Defendants-Appellants).
DIANE V. GRENDELL, J.
{¶1} Defendants-appellants, Saundra and William Ritchey, appeal from the
judgment of the Lake County Court of Common Pleas, confirming the sheriff’s sale of
their property and ordering distribution of the proceeds. The issues before this court are
whether the trial court erred by confirming a sheriff’s sale when notice of the sale was
mailed to the defendants and is published in a newspaper and where the appraisal was
completed by three disinterested parties and the property sold in excess of said
appraisal. For the following reasons, we affirm the judgment of the court below.
{¶2} On May 15, 2006, appellee, JP Morgan, as Trustee on behalf of the First
Franklin Mortgage Loan Trust, filed a Complaint in the Lake County Court of Common
Pleas against the Ritcheys, seeking a money judgment, a Decree of Foreclosure, and
an Order of Sale for the subject premises, located in Mentor, Ohio. The Complaint
alleged that the Ritcheys were in default on a Note and owed $240,143.77.
{¶3} Following the filing of an Answer and motions, the court issued a
Judgment Decree in Foreclosure and Corresponding Order of Sale on October 19,
2006, entering summary judgment in favor of JP Morgan and ordering foreclosure of the
property.
{¶4} This court affirmed the Decree in Foreclosure on August 17, 2007, in JP
Morgan Chase Bank v. Ritchey, 11th Dist. Lake No. 2006-L-247, 2007-Ohio-4225, since
there was no genuine issue of material fact. Id. at ¶ 36.
{¶5} Following that appeal, the sale of the property was delayed by various
issues, including multiple stays due to bankruptcy proceedings. On July 22, 2014, the
Ritcheys filed a Motion to Set Aside Judgment, pursuant to Civ.R. 60(B), which the trial
court denied. That decision was affirmed by this court in JP Morgan Chase Bank
v. Ritchey, 11th Dist. Lake No. 2014-L-089, 2015-Ohio-1606.
{¶6} Following additional delays, on May 16, 2017, JP Morgan filed a Praecipe
for Twelfth Pluries Order of Sale Without Reappraisal. It filed a Notice of Sheriff’s Sale
on June 22, 2017, giving notice that the sale would take place on July 17, 2017.
{¶7} A Sheriff’s Return was filed on July 24, 2017, which stated that the sheriff
advertised the sale in the News-Herald newspaper for three consecutive weeks prior to
the sale. Attached was an affidavit of publication from an agent of the News-Herald,
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stating that notice had been published on June 9, 16, and 23, 2017. The Return
indicated that the sale was held on July 17, 2017, and that JP Morgan bid the sum of
$226,556, purchasing the property.
{¶8} On August 23, 2017, JP Morgan filed a Motion to Confirm Sheriff’s Sale.
{¶9} The court issued a Judgment Entry Confirming Sheriff’s Sale and Ordering
Distribution on September 14, 2017, approving the sale and setting forth the distribution
of proceeds.
{¶10} The Ritcheys timely appeal and raise the following assignment of error:
{¶11} “The trial court erred to the prejudice of appellants by entering the Entry of
Confirmation confirming the sheriff’s sale which was unreasonable, arbitrary, and
capricious due to the failure to comply with the statutory and common law
requirements.”
{¶12} “The decision whether to confirm or set aside a sheriff’s sale is left to the
sound discretion of the trial court.” Atlantic Mtge. & Inv. Corp. v. Sayers, 11th Dist.
Ashtabula No. 2000-A-0081, 2002 WL 331734, *2 (Mar. 1, 2002), citing Ohio Sav. Bank
v. Ambrose, 56 Ohio St.3d 53, 55, 563 N.E.2d 1388 (1990). An abuse of discretion is
the trial court’s “failure to exercise sound, reasonable, and legal decision-making.”
State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s
Law Dictionary 11 (8 Ed.Rev.2004).
{¶13} “If the court, after examining the proceedings taken by the officers, finds
the sale was made in conformance with R.C. 2329.01 to 2329.61, inclusive, it
shall confirm the sale.” Fifth Third Mtge. Co. v. Paskan, 11th Dist. Lake No. 2009-L-
117, 2010-Ohio-1450, ¶ 8, citing The Union Bank Co. v. Brumbaugh, 69 Ohio St.2d 202,
208, 431 N.E.2d 1020 (1982).
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{¶14} First, the Ritcheys generally argue that there was a lack of compliance
with Lake County Court of Common Pleas Local Rules 7.3 and 7.4, which appears to be
a reference to Rules 7.03 and .04. These rules, which relate to sheriff’s sales, contain
provisions regarding payment, terms of sale, and confirmation. The Ritcheys contend
that “Appellee’s Motion for Entry of Confirmation failed to set forth the necessary
compliance” with these rules “regarding bids, payment, and distribution.” They do not,
however, identify any particular failure by JP Morgan. We find that there is no failure to
comply with these procedures evident on the face of the record.
{¶15} While there is a provision requiring a down payment by those who are not
first lien holders (apart from liens for costs, taxes, and assessments), it is inapplicable
since JP Morgan was the first lienholder. Local Rule 7.03(B). Further, Rule 7.03(C)
and (D) relate to payment required after confirmation is approved by the court and, thus,
is unrelated to the confirmation judgment from which the Ritcheys appeal.
{¶16} Regarding the argument that JP Morgan did not comply with the
“procedure and manner of any request for confirmation,” we find no prejudicial error.
Rules 7.03(F)(1) and (2) and 7.04(A) and (B) require the purchaser to file a motion to
confirm the sale and serve a copy of the motion on “interested parties.” A Motion to
Confirm was filed and contained a certificate of service to the Ritcheys. To the extent
that the Motion does not have a “prepared judgment entry” attached, as is required by
Rule 7.04(A), no prejudice is alleged and it is within the court’s discretion to determine
the enforcement of its own local rules. Cart v. Fed. Natl. Mtge. Assoc., 11th Dist.
Ashtabula No. 2011-A-0059, 2012-Ohio-2241, ¶ 49.
{¶17} Next, the Ritcheys argue that the trial court failed to comply with R.C.
2329.61’s requirement to ensure the foreclosure sale conforms with statutory
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procedures and that the entry of confirmation was “vague, insufficient, and otherwise
invalid.” They fail to corroborate these claims with any arguments supported by
citations, statutes, or the record. App.R. 12(A)(2) and 16(A)(7); Bank of New York
Mellon Trust Co. v. Zakrajsek, 8th Dist. Cuyahoga No. 104367, 2017-Ohio-17, ¶ 10 (the
assertion “that the order confirming the sheriff’s sale was a form provided by the bank
and that the entry was ‘vague, insufficient, and otherwise invalid’ * * * is a conclusion,
not an argument”). Accordingly, these arguments will be disregarded. OneWest Bank,
N.A. v. Unknown Heirs of Konnerth, 11th Dist. Lake No. 2016-L-082, 2017-Ohio-2597, ¶
23.
{¶18} The Ritcheys also argue that the sale was completed with “improper
notice and advertisement.” Pursuant to R.C. 2329.27(B)(1), a sale of lands “made
without compliance with the written notice requirements of * * * R.C. 2329.26 * * * [and]
the public notice requirements” of that section must be set aside. R.C. 2329.26 sets
forth various requirements for a creditor to follow, including serving a written notice in
accordance with Civ.R. 5 upon the debtor providing the time and place of the sale, and
filing notice with the court. R.C. 2329.26(A)(1)(a)(i) and (ii). The statute also requires
that the officer selling the property “gives public notice once a week for at least three
consecutive weeks before the day of sale” through an advertisement in a newspaper
within the county. R.C. 2329.26(A)(2)(a).
{¶19} The record demonstrates that a Notice of Sheriff’s Sale was filed with the
court, stating the date, time, and location of the sheriff’s sale, with a certificate of service
stating the document had been mailed to the Ritcheys’ counsel. “Proof of service
endorsed upon a copy of the written notice required by division (A)(1)(a) of section
2329.26 of the Revised Code shall be conclusive evidence of the service of the written
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notice in compliance with the requirements of that division,” unless a party files a motion
to set aside the sale and establishes the proof of service is fraudulent, which did not
occur here. R.C. 2329.27(B)(2).
{¶20} As to the issue of advertisement to the public, the record demonstrates,
through an affidavit of a News-Herald employee, that the sale was advertised in the
News-Herald on June 9, 16, and 23, 2017, with details of the date, time, and location of
the sale included. In the absence of any argument as to how these acts failed to satisfy
the notice requirements, we find no merit in this assertion.
{¶21} Finally, the Ritcheys raise arguments relating to the appraisal of the
property, arguing that it was “stale, incorrect and/or improper.”
{¶22} The Ritcheys concede they did not object to the appraisal in the lower
court. It has been held that the failure to contest an appraisal prior to the sale of the
property results in the application of a plain error standard of review. Bank of America,
N.A. v. Allen, 8th Dist. Cuyahoga No. 105473, 2017-Ohio-7726, ¶ 15. “[I]n regard to
civil cases, the plain error doctrine applies only in ‘the extremely rare cases involving
exceptional circumstances where error, to which no objection was made at the trial
court, seriously affects the basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying judicial process itself.’”
(Emphasis omitted.) Phillips v. Phillips, 11th Dist. Ashtabula No. 2006-A-0037, 2007-
Ohio-3368, ¶ 42, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099(1997), syllabus.
{¶23} As to the Ritcheys’ claims that they were prevented from objecting to the
appraisal, they fail to support these assertions with argumentation or evidence. On May
16, 2017, JP Morgan filed a Praecipe for Twelfth Order of Sale, noting that there would
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be no reappraisal, thus relying on an appraisal filed December 14, 2016. The Ritcheys
fail to demonstrate why they could not have objected to the appraisal either when it was
first filed or following the May 16, 2017 request for an order of sale.
{¶24} The Ritcheys also argue that the appraisal was “antiquated” and that “no
appraisal was made upon actual view” because the appraisers did not enter the
property.
{¶25} “When execution is levied upon lands and tenements, the sheriff shall call
an inquest of three disinterested freeholders, who are residents of, and real property
owners in, the county where the lands taken in execution are situated, who shall
appraise the property so levied upon, upon actual view.” R.C. 2329.17(A).
Although the statute provides that appraisers value the property
“upon actual view,” appraisals are often made without actually
entering the premises. Courts have held that an appraiser’s
failure to enter the premises does not require a sheriff[’]s sale to
be set aside. * * * [A] defendant who claims that an appraiser
failed to comply with the “upon actual view” requirement of R.C.
2329.17 must also establish they were prejudiced by the value
that the appraiser placed on the property. Specifically, a
defendant must adduce evidence that the appraisal was grossly
inaccurate and that the home would have sold for more if the
appraisal value had been higher.
(Citation omitted.) OneWest, 2017-Ohio-2597, at ¶ 25, citing Deutsche Bank Natl. Co.
v. Caldwell, 8th Dist. Cuyahoga No. 100594, 2014-Ohio-2982, ¶ 22.
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{¶26} The Land Appraisement filed on December 14, 2016, attests that the Lake
County Sheriff summoned “three disinterested freeholders” and they appraised the
property “upon actual view” at a value of $144,000. The July 23, 2017 Sheriff’s Return
from the sale states the same appraisal value. It is not evident whether the appraisers
entered the property.
{¶27} The appellants have failed to present any substantive argument with
respect to the amount or timeliness of the appraisal (completed eight months before the
sheriff’s sale) and, equally significant, have failed to claim prejudice resulting therefrom.
Bank of New York Mellon v. McMasters, 11th Dist. Lake No. 2015-L-068, 2016-Ohio-
1588, ¶ 10 (“[a]ppellant cannot rely on her unsubstantiated, ipse dixit declaration that an
interior appraisal would have changed or otherwise affected the appraised value”). The
property sold for $226,556, well in excess of the appraised value. Regardless of
whether an interior view of the premises would have changed the appraised value, the
trial court’s confirmation of sale is hardly unreasonable in light of the actual sale price,
nor did it constitute plain error. OneWest at ¶ 27.
{¶28} The sole assignment of error is without merit.
{¶29} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas is affirmed. Costs to be taxed against appellants.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.
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