Opinion
No. 81-938
Decided April 21, 1982.
Foreclosure — Confirmation of judicial sale — Hearing not required by court.
A Court of Common Pleas is not required sua sponte to hold an oral hearing prior to the court's confirmation of a foreclosure sale. ( Union Bank Co. v. Brumbaugh, 69 Ohio St.2d 202, followed.)
APPEAL from the Court of Appeals for Medina County.
Plaintiff-appellee, Thomas Shumay, was the holder of two mortgages on a parcel of property owned by defendant-appellant, Lake Chateau, Inc. Shumay brought this action in the Court of Common Pleas of Medina County to foreclose on his mortgages. Other defendants were named by Shumay in the foreclosure suit, but their identification is purposeless in the resolution of this appeal.
The trial court rendered a judgment of foreclosure and defendants filed a notice of appeal from that judgment without, however, requesting or obtaining a stay of execution. Execution against the property, therefore, proceeded. The property was sold at sheriff's sale on December 5, 1980. Subsequently, counsel for Shumay prepared an order of confirmation of sale and distribution and presented it to counsel for Lake Chateau, Inc., and other defendants for approval. Counsel for defendants-appellants signed the confirmation order which in the orderly course of events was signed by the court and journalized on December 11, 1980. No confirmation hearing was requested; none was held. On January 9, 1981, the defendants filed a notice of appeal from the order of confirmation of sale and distribution. The Court of Appeals, on April 22, 1981, affirmed the judgment of the trial court both as to the order of foreclosure and "as to the proceedings culminating in the order of confirmation * * *."
The appeal currently before us does not concern the decision of the Court of Appeals affirming the order of foreclosure. Appellants limit their challenge to the validation by the Court of Appeals of the order of confirmation by the Court of Common Pleas without a hearing.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Jack Schulman and Mr. Eugene Symms, for appellee.
Oberholtzer, Filous Chase Co., L.P.A., and Mr. Dale H. Chase, for appellants.
The issue before us is a circumscribed one. Does confirmation of a judicial sale in a foreclosure proceeding require an actual hearing regardless of whether it is requested by a party? In holding for Shumay, the mortgagee, the Court of Appeals rationalized that the defendants (mortgagors) were entitled to an opportunity to question the sale proceedings at a hearing, but in effect waived a hearing by making no request. The Court of Appeals also placed reliance upon the defendants' counsel's unqualified endorsement of the order of confirmation of sale without seeking a hearing or without objection. We prefer to predicate our affirmance of the Court of Appeals' judgment upon our decision in Union Bank Co. v. Brumbaugh (1982), 69 Ohio St.2d 202. Brumbaugh decided the issue of whether a mortgagor is entitled to an oral hearing prior to the trial court's confirmation of a foreclosure sale. The syllabus states the rule as follows:
"The Due Process Clause of the Fourteenth Amendment does not require that the mortgagor in a foreclosure proceeding must be afforded a hearing prior to the confirmation of sale where the trial court has complied with all of the statutory requirements contained in R.C. 2329.01 to 2329.61, inclusive. The granting of such a hearing lies within the sound discretion of the trial court."
There is no suggestion in the instant matter that the statutes controlling foreclosure proceedings were not complied with by the trial court. Thus even if appellants had requested an oral hearing, as the mortgagor did in Brumbaugh, the trial court possessed authority to deny such if in doing so it exercised a sound discretion. A fortiori, if defendants-appellants failed even to request an oral hearing, the common pleas court is not required to order a hearing.
The following from Brumbaugh, at pages 208-209, is worth restating:
"* * * To hold that a hearing must be held prior to every confirmation of sale would result in a duplication of state effort where the court, in effect, would also have to appraise the property, a duty specifically delegated by statute to three disinterested freeholders. The statutes concerning foreclosures were specifically designed to avoid this outcome and to assure that a fair appraisal was made."
Moreover, as we stated at page 208, in Brumbaugh, "* * * [w]here the trial court abuses its discretion in confirming the sale, a reviewing court will reverse that decision."
Accordingly, the judgment of the Court of Appeals is affirmed as to the issue herein.
Judgment affirmed.
W. BROWN, ACTING C.J., SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.
KEEFE, J., of the First Appellate District, sitting for CELEBREZZE, C.J.