Montgomery Cty. Treasurer v. Islamic Ctr. of Peace

[Cite as Montgomery Cty. Treasurer v. Islamic Ctr. of Peace, 2018-Ohio-5162.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
CAROLYN RICE, TREASURER OF :
MONTGOMERY COUNTY, OHIO :
: Appellate Case No. 27986
Plaintiff-Appellee :
: Trial Court Case No. 2017-CV-3927
v. :
: (Civil Appeal from
ISLAMIC CENTER OF PEACE, INC., : Common Pleas Court)
et al. :
:
Defendant-Appellant
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OPINION
Rendered on the 21st day of December, 2018.
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MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
WORRELL A. REID, Atty. Reg. No. 0059620, 6718 Loop Road, #2, Dayton, Ohio 45459
Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} The Islamic Center of Peace Inc. appeals from a judgment of the
Montgomery County Court of Common Pleas, which foreclosed its interest in property
and ordered that the property be sold. We conclude that the trial court did not enter a final
and appealable judgment of foreclosure because it failed to determine the priority and
amount of the liens on the property. This means that we lack jurisdiction to review the
judgment, so we dismiss.
I. Facts and Proceedings
{¶ 2} On August 22, 2017, the Montgomery County Treasurer, Carolyn Rice, filed
a complaint for foreclosure of delinquent real-estate taxes against the Islamic Center of
Peace Inc., American Tax Funding, LLC, and the Montgomery County Recorder. The
complaint alleged that $77,434.66 in taxes, assessments, charges, and penalties was
owed on real property owned by the Islamic Center. The complaint also alleged that
American Tax Funding might have an interest in the property and that the Recorder might
have an interest by virtue of a “Recorder’s Lien Record Delinquent Tangible Personal
Property Taxes.” American Tax Funding did not respond. The Recorder filed an answer
stating that it “may have an interest” in the property and asking that its interest be
protected. The Islamic Center filed an answer, as well as counterclaims for violations of
the Ohio Constitution and due process and for retroactive abatement of real estate taxes
based on nonprofit exempt status under R.C. Chapter 5709. The trial court (on the
Treasurer’s motion) dismissed the counterclaims.
{¶ 3} The Treasurer moved for summary judgment. The affidavit supporting the
motion stated that, to date, $80,126.79 in delinquent real-estate taxes were due and
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owing on the property. The trial court sustained the motion and entered summary
judgment for the Treasurer. The court concluded that the pleadings and affidavit
demonstrated that no genuine issue of material fact existed as to whether the Islamic
Center owed delinquent real estate taxes in the amount stated in the affidavit. The court
also concluded that there was no genuine issue of material fact as to any of the Islamic
Center’s affirmative defenses.
{¶ 4} On May 4, 2018, the trial court entered a final judgment of foreclosure, which
incorporated by reference both the dismissal decision and the summary-judgment
decision. The judgment stated that the Recorder’s interest was “valid and protected” and
that the priority of the Recorder’s lien “will be determined by this Court at a later date.”
The judgment foreclosed the interests of American Tax Funding and the Islamic Center
and ordered that the property be sold.
{¶ 5} The Islamic Center appealed.
II. Analysis
{¶ 6} The Islamic Center assigns two errors to the trial court that challenge its
foreclosure decision, but first we must decide whether we have jurisdiction to consider
this challenge.
{¶ 7} We entered an order on May 23, 2018, questioning whether the judgment of
foreclosure is a final and appealable order. We pointed out that the judgment failed to set
forth both the priority of the liens on the property and the amount of the Recorder’s lien.
We ordered the parties to address the finality of the judgment in their merit briefs. The
Islamic Center did so briefly in its reply brief, indicating that it thought that the judgment
of foreclosure was not final and appealable. The Treasurer did not address the issue in
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its brief or otherwise.
{¶ 8} The Ohio Supreme Court has said that “for a judgment decree in foreclosure
to constitute a final order, it must address the rights of all lienholders and the
responsibilities of the mortgagor.” CitiMortgage, Inc. v. Roznowski, 139 Ohio St. 3d 299,
2014-Ohio-1984, 11 N.E.3d 1140, ¶ 20. The rights of the lienholders include the priority
of the liens, which is why we have said that, “[g]enerally, ‘in a foreclosure action when the
trial court fails to make a determination as to the priority of liens asserted against the
property, the trial court’s order of foreclosure and sale is not a final, appealable order.’ ”
Carolyn Rice, Treasurer v. Osborne, 2d Dist. Montgomery No. 26978, *2 (May 10, 2016),
quoting Wells Fargo Bank, N.A. v. Allen, 2012-Ohio-175, 969 N.E.2d 309, ¶ 10 (8th Dist.).
In a recent line of decisions, a majority of this Court concluded that a trial court’s original
judgment of foreclosure was not a final and appealable order where the court failed to
determine the amount of a tax lien, as well as the amount claimed by virtue of a certificate
of judgment. See Farmers State Bank v. Sponaugle, 2017-Ohio-4322, 92 N.E.3d 355, ¶
10 (2d Dist.),1 citing Farmers State Bank v. Sponaugle, 2d Dist. Darke No. 16CA2 (Apr.
18, 2016). See also Ocwen Loan Servicing, LLC v. Malish, 2018-Ohio-1056, 109 N.E.3d
659, ¶ 5 (2d Dist.) (concluding that a trial court’s judgment of foreclosure that failed to
state the amount of tax liens was not a final, appealable order). We dismissed the first
1 The present author dissented and would have found the judgment of foreclosure final
and appealable despite the failure to specify the amount of the tax lien. See Sponaugle
at ¶ 42 (Hall, J., dissenting). The Ohio Supreme Court has accepted the bank’s appeal of
our decision. One of the propositions of law that the Court agreed to consider is whether
“[a] foreclosure decree which determines liability and the amount due the first mortgagor
and leaves the remaining amounts to mechanical calculation is a final order subject to
execution.” Farmers State Bank v. Sponaugle, 152 Ohio St. 3d 1405, 2018-Ohio-723
(Case No. 2017-1377).
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Sponaugle appeal for this reason. See Sponaugle, 2017-Ohio-4322, 92 N.E.3d 355, at ¶
10.
{¶ 9} The judgment of foreclosure here does not address all the rights of the
lienholders or all the responsibilities of the Islamic Center. The trial court found that there
were two liens on the property—a delinquent tax lien held by the Treasurer and a
“Recorder’s Lien Record Delinquent Tangible Personal Property Taxes,” filed on
December 2, 2002, and held ostensibly by the Recorder. But the court failed to determine
the priority of the liens, saying only that it would determine the priority of the Recorder’s
lien later. And while the trial court did determine the amount of the Treasurer’s lien, it did
not determine the amount of the Recorder’s lien, although that may be a ministerial
function.
{¶ 10} If the task of determining the amount of a lien is ministerial, the failure to do
so does not affect the finality of the judgment. The Ohio Supreme Court held in Roznowski
that “a judgment decree in foreclosure that includes as part of the recoverable damages
amounts advanced by the mortgagee for inspections, appraisals, property protection, and
maintenance but does not include specific itemization of those amounts in the judgment
is a final, appealable order.” Roznowski at ¶ 19. The Court said that, though the trial court
did not specify the actual amounts due, it did state what the mortgagors would be liable
for. This meant that “[e]ach party’s rights and responsibilities were fully set forth—all that
remained was for the trial court to perform the ministerial task of calculating the final
amounts that would arise during confirmation proceedings.” Id. at ¶ 20. Here, as the basis
for the Recorder’s interest, the complaint refers to the “Recorder’s Lien Record Delinquent
Tangible Personal Property Taxes filed December 2, 2002 as PTAX-02-149019”
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(Complaint, ¶ 6), so all that remained to be done was to look up the lien amount.
{¶ 11} We did just that on the Recorder’s website. There we found the record for
the 2002 lien referred to in the complaint, which included an image of the original
document that was filed. The document bears the caption “Recorder’s Lien Record
Delinquent Tangible Personal Property Taxes” and states that the total balance of the lien
is $177.54. It is unclear why, exactly, the lien was filed. It appears, though, that the amount
reflects personal property taxes owed by Archon Realty Inc., which owned the property
at the time. The document lists Archon’s name, and the website record lists Archon Realty
as a Mortgagor. Most interesting, though, is that the Montgomery County Treasurer is
listed as a Mortgagee.
{¶ 12} Thus, it appears that the Treasurer is also the party in interest to collect the
“Recorder’s Lien.” Indeed, it appears that the Recorder has no interest in the property at
all. Evidently, neither the trial court nor the parties realized that this lien does not represent
an interest held by the Recorder. Apparently, not even the Recorder realized this, since
in its answer the Recorder states that it “may have an interest” in the property. That the
Recorder appears not to have any interest in the property makes us question whether the
Recorder is a proper party. We also question whether the “Recorder’s Lien” filing is
sufficient to constitute a lien on the property. Finally, even if all our concerns are
misplaced, we fail to see how the lien has anything to do with this foreclosure. The lien is
not connected to any of the parties. The only connection to this case appears to be that
the subject property was at one time owned by Archon Realty.
{¶ 13} But all these observations are outside the record and are not at issue, and
we note them only so they may be addressed on remand. The trial court found that the
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Recorder had a valid interest, and we accept that finding at least for the record of this
appeal.
III. Conclusion
{¶ 14} The trial court here determined neither the amount of the “Recorder’s Lien”
nor the priority of the liens. As such, the judgment entry of foreclosure is not a final,
appealable order, and we lack jurisdiction to review it. See Roznowski, 139 Ohio St. 3d
299, 2014-Ohio-1984, 11 N.E.3d 1140, at ¶ 10, quoting Gen. Acc. Ins. Co. v. Ins. Co. of
N. Am., 44 Ohio St. 3d 17, 20, 540 N.E.2d 266 (1989) (“ ‘If an order is not final, then an
appellate court has no jurisdiction.’ ”).
{¶ 15} This appeal is dismissed.
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WELBAUM, P.J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck
Michele D. Phipps
Worrell A. Reid
Adam Laugle
Hon. Mary Katherine Huffman