U.S. Bank, Natl. Assn. v. Sanders

[Cite as U.S. Bank, Natl. Assn. v. Sanders, 2017-Ohio-1160.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104607
U.S. BANK, NATIONAL ASSOCIATION, SUCCESSOR
BY MERGER OF
FIRSTAR BANK, N.A.
PLAINTIFF-APPELLEE
vs.
SHARON SANDERS, A.K.A.
SHARON D. SANDERS, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-15-838756
BEFORE: Boyle, J., Kilbane, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: March 30, 2017
ATTORNEYS FOR APPELLANT
Paul B. Bellamy
William C. Behrens
Marc E. Dann
Emily White
The Dann Law Firm Co., L.P.A.
P.O. Box 6031040
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEES
For U.S. Bank, N.A., as Successor by Merger
of Firstar Bank, N.A.
Matthew A. Taulbee
Gerner & Kearns Co., L.P.A.
809 Wrights Summit Parkway, Suite 200
Fort Wright, Kentucky 41011
Ethan Hill
Gerner & Kearns Co., L.P.A.
7900 Tanners Gate Lane
Florence, Kentucky 41042
Matthew J. Richardson
Manley, Deas & Kochalski, L.L.C.
P.O. Box 165028
Columbus, Ohio 43216
Jennifer Schaeffer
Lerner, Sampson & Rothfuss
P.O. Box 5480
Cincinnati, Ohio 45201
For Wells Fargo Bank, N.A.
Scott A. King
Terry W. Posey, Jr.
Thompson Hine, L.L.P.
Austin Landing I
10050 Innovation Drive, Suite 400
Miamisburg, Ohio 45342
Richard A. Freshwater
Thompson Hine, L.L.P.
3900 Key Tower
127 Public Square
Cleveland, Ohio 44114
For City of Cleveland Heights, Ohio
Cliff G. Babcock
Reimer, Arnovitz, Chernek & Jeffrey
30455 Solon Road
Solon, Ohio 44139
For State of Ohio Department of Taxation
State of Ohio Department of Taxation
c/o Office of the Ohio Attorney General
150 East Gay Street, 21st Floor
Columbus, Ohio 43215
MARY J. BOYLE, J.:
{¶1} Appellant, Sharon Sanders (“appellant”), appeals from the judgment entered
by the Cuyahoga County Court of Common Pleas that confirmed a sheriff’s sale upon a
foreclosed property. Finding no merit to the appeal, we affirm.
A. Procedural History and Facts
{¶2} On January 13, 2015, plaintiff-appellee, U.S. Bank, N.A., as successor by
merger of Firstar Bank, N.A. (“U.S. Bank”), filed its complaint to recover the balance due
on a home equity line of credit (“HELOC”) and to foreclose a mortgage (“U.S. bank
mortgage”) against 847 Lecona Road, Cleveland Heights, Ohio 44121 (the “property”),
which secured its repayment.
{¶3} The complaint named Sharon Sanders a.k.a. Sharon D. Sanders, Wells Fargo
Bank, N.A. (“Wells Fargo”), the state of Ohio Department of Taxation (“ODOT”), the
city of Cleveland Heights, Ohio (“Cleveland Heights”), and the unknown spouse of
Sharon Sanders a.k.a. Sharon D. Sanders as defendants. The complaint further
acknowledged that the Cuyahoga County Treasurer may claim an interest based on real
estate taxes and assessments, but did not make the treasurer a party. All defendants were
served with the complaint.
{¶4} Cleveland Heights filed an answer to the complaint. Wells Fargo filed an
answer and cross-claim against appellant. Despite being properly served, appellant did not
file an answer to U.S. Bank’s complaint or Wells Fargo’s cross-claim.
{¶5} On September 25, 2015, U.S. Bank filed a motion for default judgment. The
trial court set a hearing on the default judgment motion for October 29, 2015. Pursuant
to the trial court’s order setting the hearing, U.S. Bank served appellant with a copy of the
notice of hearing.
{¶6} On January 21, 2016, a magistrate’s decision was issued finding that “all
necessary parties have been served with summons according to law and are properly
before the Court.”
{¶7} The magistrate’s decision found that appellant was in default, thereby
confessing judgment to the allegations contained in the complaint. A judgment was
rendered against appellant and in favor of U.S. Bank on the HELOC for $15,171.19, plus
interest at the rate of 3.25 percent from March 21, 2014. The magistrate’s decision
found that U.S. Bank’s mortgage was a valid first mortgage lien against the property; that
the property should be foreclosed; and that Cleveland Heights, Wells Fargo, and ODOT
had interests in the property because of their liens, but that their interests were “inferior
and subsequent to” U.S. Bank’s lien. None of the parties, including appellant, filed
objections to the magistrate’s decision.
{¶8} On February 22, 2016, the trial court issued an order adopting the January 21,
2016 magistrate’s decision (the “foreclosure order”). Appellant never appealed the
foreclosure order.
{¶9} On February 29, 2016, U.S. Bank filed a praecipe for the order of sale. On
March 10, 2016, the land appraisal was filed, which valued the property at $25,000. The
land appraisal specifically stated that it was made “after actual view of” the property.
None of the parties, including appellant, challenged the value prior to the sale.
{¶10} On March 14, 2016, U.S. Bank filed the notice of sheriff’s sale, which
notified all parties that the date of the sale for the property was April 18, 2016. On March
15, 2016, the trial court issued an order of the notice of sale, which also indicated the date
of the sale. The property was sold on April 18, 2016. Appellant never objected to the sale
prior to it being sold, and she never obtained a stay of the sale.
{¶11} On May 16, 2016, the trial court issued a decree of confirmation (the
“confirmation order”) as follows:
THE SHERIFF HAVING SOLD THE PROPERTY DESCRIBED IN THE
ORDER OF SALE ISSUED TO HIM, THE COURT BEING SATISFIED
OF THE LEGALITY OF THE SALE AND THAT THE NOTICE OF THE
SALE WAS IN ALL RESPECTS IN CONFORMITY TO LAW,
APPROVES AND CONFIRMS THE SAME AND DIRECTS THE
SHERIFF TO EXECUTE AND DELIVER TO WELLS FARGO BANK,
N.A. A GOOD AND SUFFICIENT DEED THEREOF. UPON FULL
PAYMENT OF THE PURCHASE PRICE, THE PURCHASER WILL BE
ENTITLED TO A WRIT OF POSSESSION AGAINST ALL PARTY
DEFENDANTS. ALL UNDISPUTED STATE LIENS ARE PROTECTED
AS PROVIDED IN R.C. SEC. 2329.192.
{¶12} It is from the May 16, 2016 confirmation order that appellant filed her
appeal. She raises the following two assignments of error:
I. The trial court erred by confirming a sale which did not dispose of all
lienholders;
II. The trial court erred in confirming the sale where the sale did not comply
with R.C. Section 2329.31(A).
B. Standard of Review
{¶13} A trial court has discretion to confirm or refuse to confirm a judicial sale.
Ohio Savs. Bank v. Ambrose, 56 Ohio St. 3d 53, 55, 563 N.E.2d 1388 (1990). If the trial
court, after examining the proceedings taken by the officers, finds the sale was made in
conformance with R.C. 2329.01 to 2329.61, it shall confirm the sale. Id. at 55, citing
R.C. 2329.31.
{¶14} “While the statute speaks in mandatory terms, it has long been recognized
that the trial court has discretion to grant or deny confirmation.” Id. The trial court’s
determination, therefore, will not be reversed absent an abuse of discretion. Deutsche
Bank Natl. Co. v. Caldwell, 8th Dist. Cuyahoga No. 100594, 2014-Ohio-2982, ¶ 13. Such
abuse is connoted by an arbitrary, unreasonable, or unconscionable decision. Id., citing
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶15} With this standard of review in mind, we turn to appellant’s assignments of
error.
C. Final and Appealable Order
{¶16} In her first assignment of error, appellant argues that the trial court erred in
entering the confirmation order because the February 22, 2016 foreclosure order was not
final and appealable because it purportedly failed to resolve all claims and defenses and
failed to address the rights of all lienholders.
A review of the record shows that appellant never appealed the foreclosure order dated
February 22, 2016. See Citifinancial v. Haller-Lynch, 9th Dist. Lorain No.
06CA008893, 2006-Ohio-6908 (the first judgment that can be appealed in a foreclosure
action is the order of foreclosure and sale). Because appellant failed to pursue an appeal
of the February 22, 2016 foreclosure order, any argument pertaining to it is now barred.
Beneficial Ohio, Inc. v. LaQuatra, 8th Dist. Cuyahoga No. 99860, 2014-Ohio-605, ¶ 5,
citing Third Fed. S. & L. Assn. of Cleveland v. Rains, 8th Dist. Cuyahoga No. 98592,
2012-Ohio-5708, ¶ 10-12.
{¶17} The facts of Rains are analogous. There, the appellant’s sole assignment of
error was that the trial court erred in entering a confirmation of sale based on an earlier
order of foreclosure that was not final and appealable. This court rejected that argument,
noting that Rains voluntarily dismissed her appeal and that the issues regarding the
foreclosure order could not be raised in her appeal of the confirmation order. This court
further held that whether an order is appealable merely relates to the court’s jurisdiction
to review it at that time and does not render it a nullity. Id. at ¶ 10. Regardless of
whether it could have been appealed, the order of foreclosure still stood as a valid order
from which the property was properly sold at the sheriff’s sale, and because Rains failed
to pursue her appeal of the foreclosure order, any argument pertaining to that order was
barred. Id. at ¶ 10; see also Caldwell, 8th Dist. Cuyahoga No. 100594, 2014-Ohio-2982
(since appellants only appealed the order confirming the foreclosure sale, the only
arguments properly before the court on appeal were those related to the procedures
employed in the sale and whether the court abused its discretion in confirming the sale);
Haller-Lynch, supra (appellant’s failure to timely appeal the earlier foreclosure judgment
bars her from raising the same issues when she appeals the confirmation order).
{¶18} Here, appellant only appealed from the May 16, 2016 confirmation order.
The only arguments that can be considered by this court are those related to the
procedures employed in the sale and whether the trial court abused its discretion in
confirming the sale. Therefore, appellant’s argument regarding the finality and
appealability of the February 22, 2016 foreclosure order is barred.
D. Appraisal and Sale of Property
{¶19} In her second assignment of error, appellant claims that the trial court erred
in confirming the sale because (1) the magistrate’s decision and foreclosure judgment
allegedly did not address valid liens or include these liens in the proceeds of the sale, and
(2) the sheriff’s appraised value was far below the auditor’s value that it did not represent
the real value of the property in money, as required by R.C. 2329.17.
{¶20} To the extent appellant’s second assignment of error pertains to
irregularities in the February 22, 2016 foreclosure order, her arguments are barred for the
same reasons set forth above. Next, we note that appellant failed to enter an appearance,
to file an answer, to object to the magistrate’s decision, to object to the land appraisal, or
otherwise take any action until after the trial court’s confirmation order. According to
the record, it was not until approximately 60 days after the sale of the property occurred
and approximately 30 days after the trial court entered the confirmation order that
appellant filed her notice of appeal and motion to stay the writ of possession. At no time
prior to the confirmation order did appellant attempt to obtain a stay of the sale, the
distribution of the proceeds from the sale, or the confirmation of the sale.
{¶21} In Provident Funding Assocs., L.P. v. Turner, 8th Dist. Cuyahoga No.
100153, 2014-Ohio-2529, appellants appealed a judgment in foreclosure. While the
appeal was pending, the foreclosed property was sold at a sheriff’s sale pursuant to court
order, and the court entered a decree confirming the sale. Although the appellants filed a
timely appeal from the confirmation order, they never filed a motion to stay the
foreclosure proceedings or a motion to stay the distribution of the proceeds from the sale.
Rather, the property was sold and the order of confirmation was effectuated. This court
noted that R.C. 2329.45 provides a remedy for appellants in foreclosure cases after the
property has been sold and the proceeds have been distributed. However, R.C. 2329.45
only applies when the appealing party sought and obtained a stay of the distribution of the
proceeds. Id. at ¶ 6, citing Wells Fargo Bank N.A. v. Cuevas, 8th Dist. Cuyahoga No.
99921, 2014-Ohio-498; see also Midfirst Bank v. Samad, 8th Dist. Cuyahoga No. 101976,
2015-Ohio-2270.
{¶22} Furthermore, when a sale is confirmed, “all irregularities are cured after the
sale is made and confirmed,” including “all such irregularities, misconduct, and
unfairness in the making of the sale, departures from the provisions of the decree of sale,
and errors in the decree and the proceedings under it.” Rains, 8th Dist. Cuyahoga No.
98592, 2012-Ohio-5708, at ¶ 11. At best, a party appealing a sale confirmation who did
not raise objections to it in the trial court could obtain only “plain error” review of the
sale confirmation. Wells Fargo Home Mtge. v. Hee Sook Chun, 8th Dist. Cuyahoga No.
101722, 2015-Ohio-1827, ¶ 8. The plain error doctrine is not favored and only applies in
extremely rare cases. Id.
{¶23} Here, appellant never moved to stay the foreclosure proceedings or to stay
the distribution of the proceeds from the sale prior to the confirmation order entered on
May 16, 2016. The property has been sold, the confirmation order has been carried out,
and there exists no relief that can be afforded to appellant. Turner, supra.
{¶24} Even if this court considered the merits of appellant’s second assignment of
error that the sale price was too low and in contradiction of R.C. 2329.17, the trial court
did not abuse its discretion in issuing the confirmation order. First, if a party is
dissatisfied with an appraisal made for a judicial sale, that party must object prior to the
sale. CitiMortgage, Inc. v. Hoge, 8th Dist. Cuyahoga No. 98597, 2013-Ohio-698, ¶ 10.
If the party does not object to the appraisal prior to the sale of the property at a time when
the court could correct any potential error, the party “is barred from raising the issue on
appeal.” Id. Even if she had objected, appellant’s bald claim that the appraisers did not
enter the property for the appraisal is unsupported by the record, especially considering
the land appraisal filed with the trial court on March 10, 2016, specifically stated that it
was done after “actual view” of the property. And, just like the facts alleged in
Caldwell, a taxable value as determined by Cuyahoga County is not sufficient because an
appraised value for foreclosure purposes considers the forced nature of the sale.
Caldwell, 8th Dist. Cuyahoga No. 100594, 2014-Ohio-2982, at ¶ 19. Appellant certainly
cannot meet her burden of demonstrating any prejudice as a result of her alleged
deficiencies in the sale of the property. Hoge, supra.
{¶25} Based on the record before us, we find no basis to conclude that the trial
court abused its discretion in confirming the sale of the property. Accordingly, appellant’s
second assignment of error is overruled. Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR