Fid. Natl. Title Co. v. Carlson

[Cite as Fid. Natl. Title Co. v. Carlson, 2018-Ohio-4274.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
FIDELITY NATIONAL TITLE INSURANCE : OPINION
COMPANY, A CALIFORNIA
CORPORATION, SUCCESSOR BY :
MERGER TO LAWYERS TITLE CASE NO. 2018-G-0156
INSURANCE CORPORATION, :
A NEBRASKA CORPORATION,
:
Plaintiff-Appellee,
:
- vs -
:
CLARENCE JAMES CARLSON a.k.a.
CLARENCE CARLSON, et al., :
Defendants-Appellants. :
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2014 F
00128.
Judgment: Affirmed.
Amelia A. Bower, Plunkett & Cooney, 300 East Broad Street, Suite 590, Columbus, OH
43215 (For Plaintiff-Appellee).
Clarence James Carlson & Deborah Carlson, pro se, 301 Sylvia Drive, Chardon, OH
44024 (Defendants-Appellants).
DIANE V. GRENDELL, J.
{¶1} Defendants-appellants, Clarence James and Deborah V. Carlson, appeal
the January 11, 2018 Amended Order Confirming Sale and Ordering Distribution of
Proceeds, entered by the Geauga County Court of Common Pleas with respect to the
sale of real estate commonly known as 301 Sylvia Drive, Chardon. The issues before
this court are whether notice of sheriff’s sale complies with the statutory requirements
where it is served upon a party’s attorney of record. For the following reasons, we
affirm the Order of the court below.
{¶2} On February 12, 2014, plaintiff-appellee, Fidelity National Title Insurance
Company, filed a Complaint for Money Judgment and Foreclosure against the Carlsons
and others.1 The Complaint alleged that the Carlsons had defaulted on a Restructure
Promissory Note secured by a Mortgage and sought judgment under the Note and
foreclosure of the Mortgage.
{¶3} On July 22, 2015, the trial court issued a Judgment Entry and Decree of
Foreclosure, awarding Fidelity National the amount of $241,977.21 on the Note, finding
that the Mortgage securing the Note constitutes a valid and first lien upon the premises
known as 301 Sylvia Drive, and ordering the sale of the real estate.
{¶4} On July 21, 2016, the property was sold at sheriff’s sale.
{¶5} On August 5, 2016, Fidelity National filed a Motion for Entry of Order
Confirming Sale and Ordering Distribution of Sale Proceeds.
{¶6} On January 3, 2018, the trial court granted Fidelity National’s Motion for
Entry of Order Confirming Sale, and on January 11, 2018, issued an Amended Order
Confirming Sale and Ordering Distribution of Proceeds.
{¶7} On February 12, 2018, the Carlsons filed a Notice of Appeal. On appeal,
they raise the following assignments of error2:
1. Also named as defendants, but who are not parties to this appeal, were: Midland Funding LLC, Capital
One Bank USA NA, Retail Recovery Serv NJ Inc., and the United States of America.
2. Edited for clarity.
2
{¶8} “[1.] The Carlsons did not receive any Certified Mail giving notice of sale or
any other type of notice therefore motion to vacate should have occurred at the Civil
Court.”
{¶9} “[2.] The Carlsons presented the lower court documentation of their last
payment made to Lawyers Title Insurance Co. on 02/08/2008. Plaintiff Fidelity National
Title Insurance Company, filed their complaint on 02/14/2014 [beyond] Ohio Statute
1303.16 of lim[itations].”
{¶10} “[3.] The amount of Loan is incorrect according to County Recorder
Volume 1373 Page 66 Dated 06/07/2001 amount of note $81,250 and including Book
1187 Page 337 Restructure of loan Amount $68,800 for a total of $149,050.”
{¶11} “[4.] Notary inconsistency[:] On 05/15/2007 Ronald B. Ramos Senior Vice
President of Lawyers Title Insurance Corp. signed on a Texas Document by Notary
Michelle Smith, Notary Commonwealth of Virginia filed 04/03/2007 prepared by Amelia
A. Bower.”
{¶12} “The confirmation [of sale] process is an ancillary one in which the issues
present are limited to whether the sale proceedings conformed to law.” CitiMortgage,
Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 40.
“Whether a judicial sale should be confirmed or set aside is within the sound discretion
of the trial court.” (Citation omitted.) Ohio Sav. Bank v. Ambrose, 56 Ohio St.3d 53, 55,
563 N.E.2d 1388 (1990); Reed v. Radigan, 42 Ohio St. 292, 294 (1884) (a court is “to
exercise sound legal discretion” as to “a confirmation or vacation of the sale”).
{¶13} In their first assignment of error, the Carlsons contend that they did not
receive notice of the sheriff’s sale.
3
{¶14} “Lands and tenements taken in execution shall not be sold until * * * the
judgment creditor who seeks the sale of the lands and tenements * * * [c]auses a written
notice to be served in accordance with divisions (A) and (B) of Civil Rule 5 upon the
judgment debtor * * *.” R.C. 2329.26(A)(1)(a)(i). “If a party is represented by an
attorney, service under this rule shall be made on the attorney unless the court orders
service on the party.” Civ.R. 5(B)(1).
{¶15} In the present case, the Carlsons had been represented by Attorney Marc
Dann at least until the July 22, 2015 Judgment Entry and Decree of Foreclosure.
Thereafter, Attorney Dann remained counsel of record although there was no activity in
the case on account of the Carlsons’ bankruptcy case. On March 30, 2016, the case
was returned to the trial court’s active docket with service thereof being sent to Attorney
Dann. On June 28, 2016, service of the Notice of Sheriff’s Sale was made upon
Attorney Dann.
{¶16} On July 11, 2016 (ten days prior to sale), the Carlsons made their first
filing pro se, a Motion to Vacate Judgment, seeking the vacation of “the judgment
entered in this action and staying execution of the writ of restitution.” This Motion was
based on the claim that the statute of limitations had run prior to the filing of the
foreclosure complaint.
{¶17} On July 19, 2016 (two days prior to sale), the Carlsons filed another
motion pro se, a Motion to Set Aside Land and Tenements (Sections 2329.26 &
2327.27 [sic]), seeking the same relief based on failure to comply with the notice
statutes.
{¶18} We find no error in the trial court’s confirmation of sale on account of the
notice provided. Strictly speaking, there was full compliance with R.C.
4
2329.26(A)(1)(a)(i) inasmuch as service of the sale was made on the Carlsons’ attorney
of record. Attorney Dann never moved to withdraw as counsel and the Carlsons never
advised the court that he was no longer representing them. The Carlsons’ first filing pro
se did not occur until after notice of the sheriff’s sale had been served. Lopresti v.
O’Brien, 11th Dist. Geauga No. 2016-G-0084, 2017-Ohio-5637, ¶ 26 (“[t]he trial court
satisfied the requirements of due process” where, “[p]rior to the motion for withdrawal
being granted, [it] * * * mailed appellant’s counsel a copy of the notice for the * * *
hearing”); Schroeder v. Dailey, 4th Dist. Ross No. 08CA0321, 2008-Ohio-6100, ¶ 7 (“[i]n
the absence of such evidence [that the court had granted appellant’s counsel motion to
withdraw], * * * Appellant was still represented by counsel at the time the amended
complaint in foreclosure was served”).
{¶19} Moreover, any deficiency in the notice given was inconsequential
inasmuch as the Carlsons were aware of the sheriff’s sale as evidenced by their
Motions seeking a stay thereof. Aurora Bank F.S.B. v. Gordon, 8th Dist. Cuyahoga No.
103138, 2016-Ohio-938, ¶ 20 (“Ohio courts have * * * recognized that failure to strictly
comply with a statutory provision governing the sale of a foreclosed property does not
necessarily require a sheriff’s sale to be set aside or preclude the confirmation of a sale
when the opponent of the sale has not suffered any harm or prejudice”); Fifth Third
Mtge. Co. v. Rankin, 4th Dist. Pickaway No. 11CA8, 2012-Ohio-2806, ¶ 23 (“a trial court
may clearly exercise its discretion to confirm a sale where no prejudice results from a
lack of specific compliance with the notice requirements of R.C. 2329.26(A)(1)(a)”); R.C.
2329.27(B)(3)(a)(i) (“[i]f the court to which the execution is returnable enters its order
confirming the sale of the lands and tenements, * * * [t]he order shall be deemed to
constitute a judicial finding * * * [t]hat the sale of the lands and tenements complied with
5
the written notice requirements of division (A)(1)(a) of section 2329.26 of the Revised
Code * * *, or that compliance of that nature did not occur but the failure to give a written
notice to a party entitled to notice under division (A)(1)(a) of section 2329.26 of the
Revised Code has not prejudiced that party”).
{¶20} The first assignment of error is without merit.
{¶21} The Carlsons’ remaining assignments of error challenge the validity of the
underlying July 22, 2015 Judgment Entry and Decree of Foreclosure. This Judgment
was not appealed and has become final. Accordingly, this court is without jurisdiction to
consider these arguments. U.S. Bank, Natl. Assn. v. Sanders, 2017-Ohio-1160, 88
N.E.3d 445, ¶ 16 (8th Dist.) (“[b]ecause appellant failed to pursue an appeal of the
February 22, 2016 foreclosure order, any argument pertaining to it is now barred”);
Citifinancial, Inc. v. Haller-Lynch, 9th Dist. Lorain No. 06CA008893, 2006-Ohio-6908, ¶
6 (“[b]ecause [appellant] did not timely appeal the foreclosure order, any issues
concerning the mortgage have been waived and those issues may not be raised in an
appeal from an order confirming the sheriff’s sale”) (citation omitted).
{¶22} The second, third, and fourth assignments of error are without merit.
{¶23} For the foregoing reasons, the Geauga County Court of Common Pleas’
Amended Order Confirming Sale and Ordering Distribution of Proceeds is affirmed.
Costs to be taxed against appellants.
TIMOTHY P. CANNON, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
6