Freedom Mtge. Corp. v. Milhoan

[Cite as Freedom Mtge. Corp. v. Milhoan, 2014-Ohio-881.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
FREEDOM MORTGAGE )
CORPORATION., )
) CASE NO. 13 CO 15PLAINTIFF-APPELLEE, )
)
and )
)
RICHARD BOSTON, et al., )
)
INTERVENORS )
PLAINTIFFS-APPELLANTS, )
)
VS. ) OPINION
)
HOWARD MILHOAN, et al., )
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 12CV289.
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Attorney Stacy Hart
Attorney Jesse Kanitz
Attorney Brad Terman
P.O. Box 5480
Cincinnati, Ohio 45201-5480
For Intervenors-Plaintiffs-Appellants: Attorney Thomas Sanborn
55 North Broad Street
Canfield, Ohio 44406
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: March 6, 2014
[Cite as Freedom Mtge. Corp. v. Milhoan, 2014-Ohio-881.]
VUKOVICH, J.
{¶1} Appellants Richard and Hilda Boston appeal from the denial of their
motion to intervene in a foreclosure action. They placed the successful bid in the
sheriff’s sale of the foreclosed property. However, plaintiff-appellee Freedom
Mortgage Corp. successfully asked the trial court to set aside the sale rather than
confirm it. The bank stated that it failed to provide a statutorily-required notice to the
defendants and failed to file that notice with court and thus claimed that the sale was
defective as a matter of law and was void so that title could not transfer to the
Bostons.
{¶2} The Bostons sought to intervene, arguing that the bank’s legal
arguments were incorrect as the bank ignored the statutory provision that such notice
need not be provided or filed where the defendants are all in default. The trial court
denied the request to intervene. The Bostons appeal the denial of intervention,
urging that the bank’s argument were legally incorrect and they are entitled to either
intervention as a matter of right or permissive intervention. For the following reasons,
we conclude that the bank’s statutory arguments were erroneous in contravention of
the plain language of the statute and that the Bostons are entitled to intervene in the
action.
{¶3} Accordingly, we reverse the denial of intervention, allow the Bostons to
intervene, and remand the case to a point prior to the court’s denial with instructions
for the trial court to accept the Bostons’ filings (which included a cross-claim and
motion to vacate the order granting the bank’s motion to vacate the sale). As the trial
court thereafter reconsiders the positions set forth in the bank’s motion to vacate, it
shall apply the statutes as explained in the first part of our opinion.
STATEMENT OF THE CASE
{¶4} On April 30, 2012, Freedom Mortgage Corporation [“the bank”] filed an
action for foreclosure against Howard and Bonnie Milhoan based upon a 1998 note
and mortgage and a 2008 loan modification concerning their property at 16312
Spring Valley Road in Salineville, Ohio. Their loan balance was $137,707 plus
interest from August 1, 2010. Also named as defendants were two other lenders.
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{¶5} No defendants answered or appeared. Thus, the bank sought default
judgment, stating that all defendants had been duly served with the summons and
complaint and were in default. On August 28, 2012, the trial court granted default
judgment in favor of the bank, finding that all parties had been properly served and
were in default.
{¶6} On October 9, 2012, the bank asked the clerk to issue an order of sale,
and the order of sale was issued to the sheriff on October 10. The property was
appraised at $135,000 on October 17. The notice of a November 13, 2012 sheriff’s
sale was published in a newspaper of general circulation once a week for three
consecutive weeks, starting October 19, 2012. An affidavit evidencing this
publication was filed by the controller of the newspaper on November 6, 2012.
{¶7} On November 15, 2012, the sheriff’s return of sale was filed with the
court, disclosing that the property was purchased by the Bostons for $90,000 at the
November 13 auction, noting that this is two-thirds of the appraised value (the
minimum bid) and reiterating that proper publication was made. The attached
purchaser information form for the property at 16312 Spring Valley Road shows that
the Bostons reside at 16448 Spring Valley Road. (Title documents filed in the case
show that the Bostons deeded the subject property to the Milhoan debtors in 1990.)
{¶8} Before the court acted to confirm the sale, the bank filed a December
31, 2012, motion to vacate the sheriff’s sale with directions to return the deposit to
the Bostons. In the statement of facts, it was disclosed that due to inadvertence,
counsel’s staff was unaware of the sale date, and thus the bank was unaware of the
auction at which the bank had intended to bid on the property. The motion asserted
that the sale was defective as a matter of law, void, and no marketable title could
arise from it. The motion was filed under R.C. 2329.27(B)(1), which states that all
execution land sales that are made without compliance with the written notice
requirements of R.C. 2329.26(A)(1)(a) shall be set aside on motion.
{¶9} Specifically, the bank claimed that it failed to comply with the
requirements of this statute because it failed to cause written notice of the date, time,
and place of sale to be served on the parties to the action under R.C.
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2329.26(A)(1)(a)(i) and because the bank failed to file with the clerk a copy of that
notice under R.C. 2329.26(A)(1)(a)(ii). The bank urged that the court was prohibited
from confirming the sale due to these statutory and constitutional defects, adding that
notice by publication only has been found insufficient by the Ohio Supreme Court.
The bank attached a proposed judgment entry to its motion. The bank served its
motion on the Bostons by placing it in ordinary mail on Monday, December 31, 2012
(the day before a legal holiday).
{¶10} On Friday, January 4, 2013, the trial court signed and filed the
proposed entry and thus vacated the sale and ordered the sheriff to return the
deposit to the Bostons. This entry provided that the bank may request another
sheriff’s sale by filing an alias praecipe for order of sale with the court. (There is no
indication in the docket that the court served notice of its entry on the Bostons.) On
February 13, 2003, the bank issued notice of the new sheriff’s sale, which revealed
that the sheriff’s sale was set for February 26, 2013.
{¶11} On February 22, 2013, the Bostons filed a motion to intervene,
attaching a memorandum in support, a proposed cross-claim, and a proposed motion
to cancel the pending sale. The Bostons sought intervention as a matter of right or
permissive intervention in the alternative. They urged that they had an interest in the
property and the action as they placed the successful bid at sheriff’s sale, they signed
a purchase agreement, they tendered the $9,000 deposit to the sheriff and incurred
loan costs, and the sheriff filed the return on the sale with the court so that
confirmation was appropriate.
{¶12} The Bostons then stated that the bank’s reasons for vacation of the sale
were incorrect as the defendants were all in default. In support, they cited to the
remainder of division (A), which the bank failed to cite and which states that service
of the written notice described in (A)(1)(a)(i) is not required to be made upon any
party who is in default for failure to appear. See R.C. 2329.26(A)(1)(b).
{¶13} The Bostons noted that the bank filed the praecipe for the original order
of sale, the sale was published as required by law, and the bank should have been
aware of the date. The Bostons urged that no prejudicial delay would ensue as the
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second sale had not taken place and thus no sale was yet confirmed. The Bostons
also pointed out that the court ruled on the motion to vacate without providing them a
chance to present their arguments. They concluded that they should be permitted to
intervene and present their arguments to the court.
{¶14} Counsel for the Bostons “walked through” the motion and the proposed
filings to the judge on the day they were filed (February 22), and the court set the
matter for a telephone conference to take place on February 25, the day before the
scheduled sale. At the telephone conference, the Bostons argued that the statutory
notice of sale is not necessary since those to be served were in default at the time of
the sale order. (See App.R. 9(C) Statement of the Evidence.) The bank stated that
its representative failed to appear and bid at the first auction due to inadvertence and
argued that the sale was void as a matter of law since no notice of sale was filed.
See id.{¶15} At the end of the phone call, the trial court disclosed that it would be
denying the motion to intervene. On February 26, 2013, the court filed an entry
overruling the Bostons’ motion to intervene and stating that the sheriff’s sale could go
forward as scheduled that day.1 This entry was served upon the Bostons, and the
Bostons filed a timely notice of appeal of that entry denying their motion to intervene.2
This court granted a stay and enjoined further action regarding the property upon the
1
The sale then took place at 10:00 a.m. that day where the bank appeared and purchased the
property for $100,000.
2
In a May 21, 2013 entry, this court concluded that the denial of the motion to intervene was a
final appealable order. Citing JPMorgan Chase Bank, NA v. Pellin, 7th Dist. No. 10MA179, 2012-
Ohio-1151 (delinquent tax purchaser should have been permitted to intervene in a foreclosure action
and denial of intervention was a final order); Gautam v. Sansai Env. Tech., LLC, 8th Dist. No. 95459,
2011-Ohio-223, ¶ 6-9 (tenant claiming possessory interest had a substantial right affected by denial of
motion to intervene in a special proceeding), distinguishing Gehm v. Timberline Post & Frame, 112
Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, ¶ 29, 32 (intervention is a substantial right, but the
denial of insurance company’s motion to intervene {for purposes of participating in discovery and
submitting jury interrogatories} did not affect a substantial right that determines the action and
prevents judgment where purpose of intervention could be litigated in the insurer’s other action). See
also Southside Community Dev. Corp. v. Levin, 116 Ohio St.3d 1209, 2007-Ohio-6665, 878 N.E.2d
1048, ¶ 6 (denial of intervention in special proceedings may be immediately appealed when a decision
in the pending matter would have a considerable effect on the property rights of the proposed
intervenor), citing Morris v. Investment Life Ins. Co., 6 Ohio St.2d 185, 187, 35 O.O.2d 304, 217
N.E.2d 202 (1996) (order denying stockholder the right to intervene in conservatorship action to
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posting of a bond in the amount of $9,000, the amount previously tendered as a
deposit on the property, and further noting that the property itself provided security as
well. Said bond was timely posted pursuant to our order. The Bostons set forth the
following two assignments of error:
{¶16} “The Trial Court erred in denying Appellants’ Motion to Intervene as
provided in Rule 24 Ohio Rules of Civil Procedure.”
{¶17} “The Trial Court erred in vacating the original Sheriff Sale and denying
Appellant’s Motion to Intervene on basis of failure of Plaintiff/Appellee to file a notice
under R.C. 2329.26.”
THE STATUTES
{¶18} Within thirty days of the sheriff’s return of a writ of execution on lands
sold, the trial court is to confirm the sale if, on careful examination of the proceedings
of the sheriff, it finds that the sale was made, in all respects, in conformity with R.C.
2329.01-R.C. 2329.61. See R.C. 2329.31(A). The court can stay the confirmation to
permit redemption or for any other reason it determines appropriate. Id.{¶19} Here, the sheriff returned the writ of execution on November 15, 2012.
Before the trial court acted to confirm the sale, the bank filed a December 31, 2012
motion to vacate the November 13 sale. The bank filed its motion under R.C.
2329.27(B)(1).
{¶20} Pursuant to this statute, all sales of lands taken in execution that are
made without compliance with the written notice requirements of R.C.
2329.26(A)(1)(a) shall be set aside on motion by any interested party. R.C.
2329.27(B)(1). Likewise, R.C. 2329.26(B) provides that a sale of land taken in
execution may be set aside in accordance with R.C. 2329.27(B). The court’s order to
set aside a sale is thus the opposite of a confirmation order.
{¶21} In arguing that the sale was defective as a matter of law and void and in
arguing that the Bostons had no right to intervene, the bank cited to R.C.
2329.26(A)(1)(a), which provides:
liquidate the company affects a substantial right in a special proceeding and is the sole legal remedy
available to preserve rights) and distinguishing Gehm, 112 Ohio St.3d 514,.
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(A) Lands and tenements taken in execution shall not be sold
until all of the following occur: 3
(1)(a) Except as otherwise provided in division (A)(1)(b) of this
section, the judgment creditor who seeks the sale of the lands and
tenements or the judgment creditor's attorney does both of the
following:
(i) Causes a written notice of the date, time, and place of the sale
to be served in accordance with divisions (A) and (B) of Civil Rule 5
upon the judgment debtor and upon each other party to the action in
which the judgment giving rise to the execution was rendered;
(ii) At least seven calendar days prior to the date of the sale, files
with the clerk of the court that rendered the judgment giving rise to the
execution a copy of the written notice described in division (A)(1)(a)(i) of
this section with proof of service endorsed on the copy in the form
described in division (D) of Civil Rule 5.
R.C. 2329.26(A)(1)(a)
{¶22} The bank’s motion did not mention the language, “[e]xcept as otherwise
provided in division (A)(1)(b)” when telling the court that the bank’s failure to follow
(A)(1)(a)(i) and (ii) rendered the sale void and defective as a matter of law. The
division omitted by the bank provides: “Service of the written notice described in
division (A)(1)(a)(i) of this section is not required to be made upon any party who is in
default for failure to appear in the action in which the judgment giving rise to the
execution was rendered.” R.C. 2329.26(A)(1)(b).
{¶23} The bank obtained default judgment in this case on the grounds that all
defendants had been properly served and were all in default. Thus, contrary to the
bank’s argument to the trial court, written notice of the sale was clearly not required
to be served on those parties. See id. See also Hall v. Trapper John’s Canoe Livery,
3
The other two items under (A) that must occur before the land is sold are: (A)(2) the public
advisement was proper, and (A)(3) the officer properly collected the purchaser’s information. Only the
first requirement is at issue here.
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Inc., 115 Ohio App.3d 162, 684 N.E.2d 1277 (10th Dist.1996) (trial court erred in
granting relief from judgment confirming sale on basis that notice was not served on
all parties as the parties in default were not entitled to notice). The bank does not
now dispute this.
{¶24} Instead, the bank currently focuses solely on (A)(1)(a)(ii). The bank
maintains that a lack of strict compliance with this division would result in a void sale
even after confirmation. Thus, the bank urges that the trial court was required to set
aside the sale rather than confirm it because the bank failed to comply with R.C.
2329.26(A)(1)(a)(ii). Specifically, the bank claims that it was required to file some
type of notice with the court to show that it complied with (A)(1)(a)(i).4 The bank
posits that division (A)(1)(b) only cites to the service of notice on the parties under
(A)(1)(a)(i) and does not expressly cite to (A)(1)(a)(ii) and thus the bank was still
required to comply with (A)(1)(a)(ii) even though the parties were all in default. As
will be shown below, this argument lacks merit.
{¶25} But first, we dispose of the bank’s argument that strict compliance with
(A)(1)(a)(ii) is required and that a lack of strict compliance renders any sale void. The
bank cites an 1861 trial court case out of Marion County in support of its strict
compliance argument. See Creditors v. Search, 2 Ohio Dec. Reprint 495 (1861).
The bank immediately thereafter cites a Fourth District case for the general point that
the purpose of (A)(1)(a)(ii) is to notify the court that the bank complied with the written
notice requirements of (A)(1)(a)(i). See Fifth Third Bank Mortgage Co. v. Rankin, 4th
Dist. 11CA18, 2012-Ohio-2804, ¶ 21.
{¶26} Notably, the rest of this Rankin case actually stands for the opposite
position as that taken by the bank on the required type of compliance. Specifically,
the Fourth District concluded that strict compliance with (A)(1)(a)(ii) is not mandated.
Id. at ¶ 19-24 (finding no prejudice to the parties where the bank did not file the copy
4
The bank cites a case after a compound sentence. The use of this citation could be seen by
a reader as supporting the bank’s position on whether notice had to be filed in the trial court.
However, the case is apparently actually only cited for the first part of the compound sentence where
the bank admits that it was not required to send notice to the defendants due to default. See
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of the written notice with proof of service within seven days before the sale because it
mistakenly sent it to the wrong county).
{¶27} As that court pointed out, R.C. 2329.27 provides that if the court
confirms the sale, the order shall be deemed as a judicial finding that the sale
complied with the written notice requirements of R.C. 2329.26(A)(1)(a) “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 has not prejudiced
that party.” See R.C. 2329.27(B)(3)(a)(i). This statutory provision suggests that strict
compliance is not mandated and a sale is not void due to such a failure. Finally, we
note that the Supreme Court stated long ago that just because a statute provides that
no sale shall take place without an appraisal does not mean that a sale would be void
after confirmation. Allen’s Lessee v. Parish, 3 Ohio 187, 192, 194 (1827).
{¶28} In any event, there was strict compliance here, and the bank’s
argument that the sale was defective because it failed to comply with (A)(1)(a)(ii) is
without merit and contrary to the unambiguous statutory provisions. As aforequoted,
R.C. 2329.26(A)(1)(a) begins: “Except as otherwise provided in division (A)(1)(b) of
this section * * *.” This proviso plainly introduces both (i) and (ii) and thus provides
that these two requirements do not apply if (A)(1)(b) applies. As it is undisputed that
(A)(1)(b) applies here, none of division (A)(1)(a) applies. This is clear under the plain
language of the statute.
{¶29} There is even further support for this plain reading of the statute.
Specifically, division (A)(1)(a)(ii) states that the bank shall file “a copy of the written
notice described in division (A)(1)(a)(i) of this section with proof of service endorsed
on the copy * * *.” If no written notice was required to be served, then there exists no
copy of that written notice to file with the clerk. Furthermore, as written notice was
not served, there would exist no proof of service either. Contrary to the bank’s
suggestion, the statute does not state the bank shall file a copy of the written notice
Appellee’s Brief at 11, citing Washington Mut. Bank v. Gattis, 5th Dist. No. 12-CA-40, 2013-Ohio-2219,
¶ 10 (where the Fifth District merely noted that notice is not required to be served on those in default).
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with the clerk with proof of service or tell the clerk why service of written notice was
not required.
{¶30} For these reasons, the arguments presented in their motion to vacate
the sale and in their opposition to the Bostons’ motion to intervene wholly lack merit.
{¶31} We recognize here that the trial court’s vacation order is not itself
before this court. In responding to the Bostons’ second assignment of error where
the statutory interpretation issue is raised, the bank asserts that the issue on appeal
is limited to whether intervention was proper. The Supreme Court has stated that it is
well-settled that an appeal from the denial of a motion to intervene is limited solely to
the issue of intervention. State ex rel. Sawicki v. Court of Common Pleas of Lucas
Cty., 121 Ohio St.3d 507, 2009-Ohio-1523, 905 N.E.2d 1192, ¶ 18, citing Fouche v.
Denihan, 66 Ohio App.3d 120, 126, 583 N.E.2d 457 (10th Dist.1990) (reversing the
denial of intervention and then holding that the appeal was limited to the denial of the
intervention motion. See also Southside Community Dev. Corp. v. Levin, 116 Ohio
St.3d 1209, 2007-Ohio-6665, 878 N.E.2d 1048, ¶ 11 (a person who seeks and is
denied intervention is a party to the appeal for the limited purpose of asking the
reviewing court to determine whether it has the legal right to intervene).
{¶32} Because the appeal is limited to the order denying intervention, the
bank suggests that we should not consider whether the bank failed to comply with
mandatory provisions of R.C. 2329.26 as alleged in the Bostons’ second assignment
of error. However, the Bostons’ second assignment of error does not allege merely
that the trial court erred in vacating the sale on the bases asserted by the bank, that
assignment also alleges that the court erred in denying intervention on these same
bases. As the Bostons point out, the bank continued to set forth an erroneous
statutory argument in opposing their request to intervene.
{¶33} In order to properly review the case that is before us, we must evaluate
the statutory arguments that were presented by the bank below (and that were fully
briefed by both parties herein). The egregiously erroneous nature of the bank’s legal
claims in its motion to vacate and again in their opposition to intervention is relevant
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to a determination as to whether intervention should have been ordered here. Upon
the law set forth supra, we turn to the intervention rules and arguments.
INTERVENTION
{¶34} The Bostons sought intervention as a matter of right under Civ.R.
24(A)(2) and alternatively asked for permissive intervention under Civ.R. 24(B)(2).
As the bank acknowledges, Civ.R. 24 should be construed liberally in favor of
granting intervention. See State ex rel. Merrill v. ODNR, 130 Ohio St.3d 30, 2011-
Ohio-4612, 955 N.E.2d 935, ¶ 41. The standard of review for both intervention as a
matter of right and permissive intervention is whether the trial court abused its
discretion in denying intervention. Id. See also State ex rel. First New Shiloh Baptist
Church v. Meagher, 82 Ohio St.3d 501, 503, 696 N.E.2d 1058, fn. 1 (1998). An
abuse of discretion involves a decision that is unreasonable, unconscionable, or
arbitrary. Id. at 503.
{¶35} Pursuant to Civ.R. 24(A)(2), anyone shall be permitted to intervene in
action (1) upon timely application, (2) if the applicant claims an interest relating to the
property or transaction that is the subject of the action, (3) the applicant is so situated
that the disposition of the action may as a practical matter impair or impede the
applicant's ability to protect that interest, and (4) the applicant's interest is not
adequately represented by existing parties. The Supreme Court has stated that the
interest must be one that is legally protectable. Merrill, 130 Ohio St.3d 30 at ¶ 42.
{¶36} On these elements, the Bostons state that the bank would have
suffered no harm by allowing the application. They note that they appeared and
purchased the property as bona fide purchasers, made the required deposit, and
were ready and willing to tender the remainder of the purchase price as they had
already incurred expenses in the form of interest and loan costs. They thus urge that
their successful bid at a proper sale gave them an interest in the property or
transaction which is the subject of the action. The Bostons assert that they had no
other method to protect their interest, pointing out that the court set aside the sale
without providing an opportunity to them to protest. Lastly, they state that no existing
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party could adequately protect their interest as they were all in default and were not
involved or represented in the proceedings.
{¶37} The bank’s response centers the dispute here around the second
element: the applicant claims an interest relating to the property or transaction that
is the subject of the action. (Appellee’s Brief 8-9). The bank urges that there is no
right to intervene because a purchaser at a sheriff’s sale has no rights until the sale is
confirmed. The bank relies upon two Supreme Court cases. See State ex rel.
Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 664 N.E.2d 931 (1996); Ohio
Savings Bank v. Ambrose, 56 Ohio St.3d 53, 563 N.E.2d 1388 (1990). Certain
language plucked from these cases may on first perusal sound damaging to the
purchaser’s position. However, upon a thorough review, these cases are
distinguishable
{¶38} In Ambrose, the debtor filed a motion to deny confirmation of a sheriff’s
sale and to permit her to redeem the property. Rather than immediately vacate the
sale, the trial court continued the matter of confirmation in an entry which found that
the debtor was in a position to redeem. As the Ambrose Court twice noted, the
debtor has the right to redeem at any time prior to confirmation of the sale.
Ambrose, 56 Ohio St.3d at 54, fn.4 (the right to redeem prior to confirmation is
absolute).
{¶39} The purchaser never filed a motion to intervene. More than a month
after the debtor’s request, the trial court found that the property had been redeemed
and thus vacated the sheriff’s sale. The purchaser then attempted to appeal the trial
court’s denial of confirmation. The appellate court noted that the purchaser never
sought to intervene below. That court determined that the purchaser had no interest
in the property prior to confirmation and the failure to intervene as a party divested
the purchaser of the capacity to appeal the trial court’s decision.
{¶40} The Supreme Court affirmed the appellate court’s dismissal of the
appeal. First, the Court noted that the purchaser cited to early case law “which
indicates that purchasers at foreclosure sales do have some type of interest in the
proceedings prior to confirmation.” (Emphasis original). Id. at 54, citing Reed v.
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Radigan, 42 Ohio St. 292 (1884) (stating that the trial court may hear from the
plaintiff, the defendant, and the purchaser prior to deciding whether to confirm or
vacate the sale). Notably, the Ambrose Court specifically emphasized the word
“proceedings.” Id.{¶41} The Court stated that Reed “does not stand for the assertion that the
purchasers have a vested interest in the property prior to confirmation of the
foreclosure sale.” (Emphasis added.) Id. The Reed Court had explained that its
research showed that in states where confirmation is required, “the purchaser obtains
no vested rights until after the sale confirmed” and if the confirmation is refused, “the
rights of the purchaser fall to the ground.” Id. at 55.
{¶42} The Ambrose Court then stated that the decision to grant or deny
confirmation is within the sound discretion of the trial court. Id. The Court recognized
that the primary goal of a foreclosure sale is to protect the interests of the debtor
while ensuring the creditors received payment for unpaid debt, which would entail a
desire to obtain the maximum amount of money from the sale. Id. at 56. Yet, the
Court also recognized the general policy of the law to give judicial sales a certain
degree of finality. Id.
{¶43} The Court concluded that purchasers at a foreclosure sale have “no
vested interest in the property prior to confirmation of the sale by the trial court” and
thus have no standing to appeal if the trial court subsequently denies confirmation.
Id. at 55. In a footnote, the Court added that the purchasers were not aggrieved
parties because they did not have a vested interest in the subject property prior to
confirmation of the foreclosure sale. Id. at fn.3. The footnote additionally stated:
“Likewise, because confirmation was denied, they have no present interest in the
subject matter of this litigation and, thus, no right of appeal under long-standing Ohio
law.” Id.
{¶44} It was then reiterated that the debtor has the absolute right to redeem
prior to confirmation. Id. at fn.4. It was also stated that if the purchasers were
permitted to appeal, their status would be elevated above the debtor and creditor and
“[i]t would be illogical to grant to purchasers, who have no vested interest in the
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property prior to confirmation, the power to nullify a sale that is more advantageous to
the debtor and creditors.” Id. at 56.
{¶45} There are several distinguishing factors here. First, the purchaser in
Ambrose was attempting to appeal the order setting aside the sale, whereas the
purchaser here appealed from the denial of intervention. The Supreme Court was
evaluating the existence of an interest for purposes of conferring standing to appeal,
not for purposes of permitting intervention. And, the purchaser in Ambrose did not
attempt to intervene, whereas the purchaser here did attempt to intervene.
Additionally, Ambrose stated that there was no “vested” interest in the property,
whereas Civ.R. 24(A)(2) mentions only an “interest in the property or the transaction
that is the subject of the action * * *.”
{¶46} Moreover, the Supreme Court did recognize that purchasers “do have
some type of right in the proceedings prior to confirmation.” This right in the
proceedings prior to confirmation would include a right to ask for and, in certain
cases, receive intervention. Finally, the sale was vacated in Ambrose because the
debtor had the absolute right to redeem, whereas there is no absolute right of a bank
to buy the property; nor is there an absolute right of a bank to have a sale vacated on
the legally incorrect grounds provided to the trial court in this case.
{¶47} In the Supreme Court’s later Pontious case, the county treasurer moved
to set aside a sheriff’s sale on the ground that the appraisals were based on
erroneous information, which stifled the bidding process as this information was
announced at the sale. The purchaser was served notice of the motion but did not
respond to the treasurer’s motion within the fourteen days required by local rule.
And, prior to a scheduled hearing on the motion to set aside the sale, the parties in
the underlying foreclosure action agreed to set aside the sale. Thus, the trial court
vacated the sale.
{¶48} The purchaser filed a motion to intervene the next day. The trial court
denied the motion, noting that the purchaser did not timely respond to the treasurer’s
motion to vacate the sale. There is no indication that the purchaser appealed that
decision. Rather, the purchaser filed a petition for a writ of mandamus in the
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appellate court asking to compel the trial judge to vacate the order setting aside the
sale, asserting that the statute implicitly requires the court to conduct a hearing prior
to confirming or setting aside a sale. The Twelfth District dismissed the action,
finding that the purchaser had no clear legal right to a hearing under the confirmation
statute and the Ambrose case. The Supreme Court affirmed.
{¶49} The Court first disposed of the purchaser’s argument that a hearing is
required under the language in R.C. 2329.31, which provides that the court shall
confirm the sale if it was made in compliance with the statutes after the court
conducts a “careful examination of the proceedings of the officer making the sale.”
Pontious, 75 Ohio St.3d at 566-567. The Court concluded that this language does
not confer a clear legal right or a clear legal duty regarding a hearing. Id. at 567.
{¶50} The Court then disposed of the purchaser’s argument that his due
process right to a hearing prior to vacation was violated. Id. The Court noted that the
purchaser failed to cite authority as to whether its successful bid was a property
interest protected by the due process clause. Id. The Court stated that it need not
decide the issue here because the purchaser received notice and an opportunity for
some kind of hearing prior to deprivation, pointing out that the purchaser failed to
respond to the treasurer’s motion within fourteen days as required by local rule. Id.
{¶51} The Court then reviewed its Ambrose case, noting that although the
purchaser generally possesses some type of interest in the proceedings prior to
confirmation (again emphasizing “proceedings”), this was not enough to give the
purchaser standing to appeal the order vacating the sale. Id. at 567-568. The Court
summed up Ambrose by stating: “absent confirmation, the purchaser had no
actionable interest by virtue of the successful bid alone.” (Emphasis added). Id. at
568.
{¶52} The Court distinguished an appellate case finding a right to participate
in confirmation on the basis that the purchaser in that case was granted leave to
intervene, where this purchaser was not. Id. at 568, citing Federal Home Loan Mtge.
Corp. v. Slagle, 11th Dist. Nos. 92-L-022 and 92-L-035 (Dec. 4, 1992). The Pontious
Court found that Slagle could not be extended to stand for the premise that a
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purchaser has a right to be heard “irrespective of intervention” or the purchaser’s
interest would rise to a level that Ambrose did not intend. Id. The Court continued:
“Thus, Ambrose is consistent with a finding that the purchaser’s ability to participate
in confirmation proceedings as a party, for any purpose, depends on the purchaser’s
intervention.” (Emphasis added). Id.
{¶53} The Court then disposed of the purchaser’s argument that the trial court
set aside the sale without requiring actual evidence of irregularities. The Court
pointed out that mandamus does not lie to control judicial discretion. Id. at 569. The
Court alternatively stated that there was evidence before the trial court in the form of
an agreed entry wherein the debtor and the treasurer agreed that irregularities
occurred in the sale which prejudiced the bidding. Id.
{¶54} Pontious is distinguishable, and the statements within it concerning the
lack of bidder rights do not bar the purchaser from intervening. Firstly, Pontious was
a writ action asserting hearing rights regardless of intervention rather than the appeal
from the denial of intervention that we have here. Secondly, the purchaser in
Pontious had time to respond to the motion to vacate, whereas here the trial court
ruled on the bank’s motion on the third business day after the motion was filed.
Thirdly, the bank’s reasons for vacation here were clearly and legally erroneous, and
there is no discretion to alter the plain language of the statutes. Finally, Pontious
specifically recognized that the purchaser’s ability to participate is dependent upon
intervention.
{¶55} As Ambrose and Pontious were not cases reviewing the appeal of a
request to intervene, their statements, although relevant, are not directly on point.
Just because a purchaser does not have a vested property right upon a mere
successful bid (prior to confirmation) does not mean they have no right to seek
intervention. We reject the bank’s argument that the holdings of Ambrose and
Pontious bar purchasers from intervening as a matter of right under the second
element required for such intervention: “the applicant claims an interest relating to
the property or transaction that is the subject of the action * * *.”
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{¶56} If the bank did not file a legally incorrect motion (nearly seven weeks
after the sheriff filed the return of sale), which motion failed to advise the court that
the parties were all in default and failed to fully cite the statutes which allegedly
rendered the sale void, then the sale would have been confirmed and the property
rights would have been fully vested in the Bostons. The bank’s response to
intervention rested on their own lack of compliance with statutes that they
misinterpreted. And, the bank’s only arguments against intervention on appeal
involve whether the purchasers have a legally protectable interest prior to
confirmation (with reiteration of their argument that the sale was void for claimed
statutory non-compliance). 5
{¶57} Civ.R. 24(A)(2) does not refer to vested property rights. Rather, it deals
with an interest in the property or the transaction that is the subject of the action.
Although the Bostons’ rights in the property would not have vested until confirmation,
they still had “some type of right in the proceedings prior to confirmation.” (Emphasis
original). See Ambrose, 56 Ohio St.3d at 54. Intervention was mentioned as an
option for purchasers in the facts of the Ambrose case and emphasized by the
Pontious Court as an available procedure.
{¶58} Civ.R. 24 is to be liberally construed in favor of intervention. We
conclude that the Bostons claimed a legally protectable interest relating to the
property or transaction that is the subject of the action, and the under the totality of
the circumstances existing in this case, intervention should have been permitted as a
matter of right.
5
Contrary to a suggestion of the bank at oral argument, a purchaser cannot be expected to
hire legal counsel and seek intervention after he wins a sheriff’s sale just in case someone later
attempts to have the sale vacated. Nor can a purchaser be expected to seek intervention prior to
January 4 when the motion was not even placed in the mail by the bank until December 31 (especially
with New Year’s Day being a legal holiday). It is disingenuous to argue that a motion to intervene
should have been filed before the court vacated the sale under the facts of this case. We also note
that although a proposed judgment entry was contained in the motion sent to the Bostons, the court’s
docket does not indicate that the Bostons were served with the court’s actual January 4 decision.
Finally, the statute contemplates a court confirming the sale within thirty days, but the bank did not file
its motion to vacate until almost seven weeks had passed. If time were to be construed against any
party, it would be the bank. In any event, timeliness was not raised by the bank below or in its
appellate brief.
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{¶59} Regardless, we would also conclude that the court abused its discretion
in not allowing permissive intervention. Permissive intervention is provided for in
Civ.R. 24(B), which states in pertinent part that anyone may be permitted to
intervene: (1) upon timely application, (2) when an applicant's claim or defense and
the main action have a question of law or fact in common, and (3) when the
intervention will not unduly delay or prejudice the adjudication of the rights of the
original parties. Civ.R. 24(B).
{¶60} Notably, the bank’s arguments regarding whether the Bostons have an
“interest” would not apply to permissive intervention as the rule does not contain that
element. The bank suggests that permissive intervention does not require major
analysis because the Bostons merely used it as a catch-all, alternative argument.
{¶61} The Bostons did argue that there would have been no harm to the bank
in permitting intervention, and the bank made no case for “undue” delay or prejudice
that would have ensued as a result of intervention. Any delay or prejudice to the
bank would not have been ”undue” considering the bank’s motion to vacate (filed
nearly seven weeks after the sheriff’s return of sale), the incorrect reasons provided
therein, and the failure to fully cite the statutory requirements or the pertinent facts of
the case. In fact, any delay or prejudice would have been “due” to the bank (in both
senses of the word.)
{¶62} The bank also states that there is no question of law or fact in common
between the purchasers’ claim concerning the vacation of the sale and the main
action involving the bank and the debtor. However, the claim the purchasers wished
to set forth responded to the bank’s assertions in its request to vacate the sale
concerning the requirements of R.C. 2329.26(A)(1)(a). Plus, the same property is
involved in the purchaser’s claim and the bank’s action. There is a sufficient question
of law or fact in common.
{¶63} In sum, the purpose of intervention is compelling, there are unusual
circumstances weighing in favor of intervention, and the sheriff had not yet conducted
the second sale. As aforementioned, Civ.R. 24 is to be liberally constructed in favor
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of intervention. Under the totality of the facts and circumstances existing in this case,
it was unreasonable and unconscionable to refuse permissive intervention.
{¶64} Again, the Supreme Court suggested that intervention by a purchaser is
an option. Thus, it must either be an option through a motion to intervene as a matter
of right or through permissive intervention. Either way, it was required in this case.
CONCLUSION
{¶65} The bank incorrectly informed the trial court that there was a failure to
comply with the statutory requirement concerning service of notice on the parties in
R.C. 2329.26(A)(1)(a)(i). The bank failed to cite the beginning and the end of this
statutory provision (which specify that notice of sale need not be provided to those in
default), and the bank failed to inform the trial court that the parties were all in default.
See R.C. 2329.26(A)(1)(b).
{¶66} The bank also misinterpreted division (A)(1)(a)(ii) involving the duty to
file with the clerk a copy of the written notice with proof of service on the parties. If
there was no written notice served on the parties, there is nothing mandatory to file
with the clerk. Division (A)(1)(a) clearly states that both (A)(1)(a)(i) and (A)(1)(a)(ii)
are subject to the defaulting party exception in (A)(1)(b). The bank also erroneously
urged that any sale would be defective and void and would not convey marketable
title based upon the alleged violation of (A)(1)(a)(ii).
{¶67} The bank’s request for vacation of the sale was based upon these
incorrect legal arguments and half-citations/partial quotes. The Bostons sought
intervention to make the proper arguments concerning the statute. Contrary to the
bank’s assertion, the Bostons have a legally protectable interest in the property or the
transaction that is the subject of the bank’s action for purposes of Civ.R. 24(A)(2)
even if their property interest was not yet vested. And, contrary to the bank’s
alternative position, the Bostons’ claim and the main action have a common question
of law or fact, allowing for permissive intervention under Civ.R. 24(B)(2).
{¶68} Accordingly, we reverse the denial of intervention, allow the Bostons to
intervene, and remand the case to a point prior to the court’s denial with instructions
for the trial court to accept the Bostons’ filings (which included a cross-claim and
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motion to vacate the order granting the bank’s motion to vacate the sale). As the trial
court thereafter reconsiders the positions set forth in the bank’s motion to vacate, it
shall apply the statutes as explained in the first part of our opinion.
Donofrio, J., concurs.
Waite, J., concurs.