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Bercutt v. Unknown Heirs

COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
Nov 9, 2020
2020 Ohio 5230 (Ohio Ct. App. 2020)

Opinion

CASE NO. CA2020-03-047

11-09-2020

ALAN S. BERCUTT, aka ALAN BERCUTT, SUCCESSOR TRUSTEE OF THE DONALD ROY SAWYER SEPARATE PROPERTY TRUST DATED NOVEMBER 19, 1997, Appellant, v. THE UNKNOWN HEIRS, DIVISEES, LEGATEES, EXECUTORS, ADMINISTRATORS, SPOUSES AND ASSIGNS AND THE UNKNOWN GUARDIANS OF MINOR AND OR INCOMPETENT HEIRS OF MARIAM ADDIS aka MIRIAM ADDIS aka MARIAM HOFAKER aka MIRIAM HOFAKER ADDRESS UNKNOWN, Defendant, - AND - ROGER HURST, THIRD-PARTY PURCHASER, Appellee.

Millikin & Fitton Law Firm, Thomas A. Dierling, 9032 Union Centre Boulevard, Suite 200, West Chester, Ohio 45069, for appellant Roger Hurst, 801 Campbell Avenue, Hamilton, Ohio 45011, pro se


OPINION

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV 2018 10 2466 Millikin & Fitton Law Firm, Thomas A. Dierling, 9032 Union Centre Boulevard, Suite 200, West Chester, Ohio 45069, for appellant Roger Hurst, 801 Campbell Avenue, Hamilton, Ohio 45011, pro se RINGLAND, J.

{¶1} Appellant, Alan Bercutt, trustee ("Bercutt"), appeals a decision of the Butler County Court of Common Pleas confirming the sale of property at a sheriff's sale.

{¶2} Bercutt is the successor trustee of the Donald Roy Sawyer Separate Property Trust dated November 19, 1997. The trust is the holder of a note and mortgage on property at 916 Campbell Avenue in Hamilton, Ohio. On October 30, 2018, Bercutt, filed a complaint to foreclose on the property. The defendants failed to answer and a judgment entry for default and foreclosure was entered on February 28, 2019. The trial court determined the amount owed under the mortgage instrument was $95,000 and ordered the property to be sold at a sheriff's sale.

{¶3} Three independent appraisers valued the property at $41,000. A notice of the sale date, the appraised value and minimum bid was published in the Hamilton Journal News for three consecutive weeks. At the sale, only one person, Roger Hurst, bid on the property, in the amount of the $27,000 minimum bid. An order of sale was issued on August 9, 2019 documenting the sale of the property to Hurst.

{¶4} Bercutt filed a motion to set aside the sale on August 16, 2019. Hurst responded to the motion with an attached affidavit and Bercutt filed a reply to the response. The court considered the filings and on March 4, 2020 issued a judgment entry confirming the sale. Bercutt now appeals the trial court's decision to confirm the sale and raises the following assignment of error for our review:

{¶5} THE TRIAL COURT ERRED WHEN IT FAILED TO SET ASIDE THE AUGUST 8, 2019 SALE OF THE PROPERTY.

{¶6} Bercutt argues that the trial court erred by failing to set aside the sale because the primary purpose of a judicial sale is to raise money due the creditor. He argues the sale in this case raised less than one-third of the amount due under the loan and the sale amount was significantly below the value of the property.

{¶7} Once a foreclosure sale is complete, a trial court must confirm the sale, provided the court finds that "the sale was made, in all respects, in conformity with sections 2329.01 to 2329.61, inclusive, of the Revised Code." R.C. 2329.31. Although this statute "speaks in mandatory terms, it has long been recognized that the trial court has discretion to grant or deny confirmation." Ohio Savs. Bank v. Ambrose (1990), 56 Ohio St.3d 53, 55. Accordingly, a trial court's decision to confirm a sheriff's sale of property will not be reversed absent an abuse of discretion. Farmers State Bank v. Sponaugle, 157 Ohio St.3d 151, 2019-Ohio-2518, ¶ 19.

{¶8} In exercising its discretion in a foreclosure action, a court must consider that the primary purpose of the judicial sale is to protect the interest of the mortgagor-debtor and also to promote a general policy which provides judicial sales with a certain degree of finality. See Ohio Savs. Bank, 56 Ohio St.3d at 56. In determining whether a trial court erred in failing to set aside a judicial sale, courts in Ohio have examined factors such as the difference between what property sells for at a judicial sale and the amount of indebtedness to the mortgagor, the timeliness of the motion to set aside, and the likelihood that a higher bid could be received by vacating a sale. Chase Manhattan Mtge. Corp. v. Koan, 6th Dist. Huron No. H-02-011, 2002-Ohio-6182, ¶ 18.

{¶9} Bercutt does not dispute the trial court's determination that the sale was performed in conformity with the statutory requirements. As mentioned above, the property was appraised by three independent appraisers at $41,000, was advertised according to the statutory requirements and sold for two-thirds of the appraised value. See R.C. 2329.20 to 2329.30. Instead, Bercutt argues that the trial court abused its discretion in confirming the sale because the trial court focused on the need to promote finality of judicial sales over the purpose of protecting the interest of the mortgagor-debtor. In support, he alleges that the indebtedness on the loan is $95,000, and the property's value is higher than the appraised value used to determine the minimum bid.

{¶10} In his motion to set aside the sale, Bercutt argued that he was not given notice of the sale. He further argued that the sale price was less than 29% of the total indebtedness of $95,000, and there was only one bidder at the sale. He stated that it was "extremely likely that a higher bidder could be received" if the sale is vacated. Bercutt argued the property was more valuable than the sheriff's appraisement. In support, he presented a Butler County Auditor's appraisal price for the property was $410 more than the sheriff's appraisement. He also submitted a May 2017 appraisal of the property at $72,000 and an insurance policy based on that appraisal.

{¶11} In response, Hurst submitted an affidavit to the trial court which stated that Hurst learned of the property sale through the advertisement in the newspaper. Hurst stated that although there were other potential bidders present at the sale, none of those persons submitted a bid on the property at issue.

{¶12} In considering the motion and evidence, the trial court determined that the statutory requirements were followed and that there was no duty imposed on the sheriff's office to inform Bercutt of the sale. The trial court further considered Bercutt's argument that the property was undervalued and determined that although the appraisal two years prior to the sale was higher, Bercutt failed to demonstrate in any manner why the three independent appraisals submitted to the sheriff's office two months prior to the sale were flawed. The trial court also found that Bercutt had not provided anything "beyond conjecture" that another buyer would be willing to pay a higher price. Finally, the trial court also considered the fact that there was only a single bidder on the property and found Bercutt's argument that a second round of advertisements would attract more bidders "speculative at best."

{¶13} "The exercise of the trial court's discretion 'must be bottomed upon the factual situations surrounding each sale.'" Harris Trust & Savs. Bank v. Natl. Republic Bank of Chicago, 9th Dist. Summit No. 21668, 2004-Ohio-1602, ¶ 8, quoting Merkle v. Merkle (1961), 116 Ohio App. 370, 372. Based on the facts of this case, we find the trial court did not commit an abuse of discretion in ordering confirmation of the sale to Hurst.

{¶14} The trial court properly considered the purposes of protecting financial interests and providing judicial sales with a certain degree of finality. The sale of property was conducted pursuant to the statutory standards. Although Bercutt presented an older appraisal of the property, he provided no reason why the older appraisal was more accurate than the three recent appraisals. In addition, although only one person bid on the property, other potential buyers were at the sale and had the opportunity to bid.

{¶15} The court weighed the specific factors in this case and found that Bercutt's arguments that the property was undervalued and that a higher price could be obtained at another sale were not supported by the evidence presented, and were instead simply speculation. See Chase Manhattan Mtge. Corp. v. Koan, 6th Dist. Huron No. H-02-011, 2002-Ohio-6182, ¶ 19-22. ("If the sale were vacated, it would be pure speculation to conclude that the property would be sold at anything other than the minimum bid"). Accordingly, the trial court did not abuse its discretion in confirming the sale of the property to Hurst. Bercutt's sole assignment of error is overruled.

{¶16} Judgment affirmed.

M. POWELL, P.J., and PIPER, J., concur.


Summaries of

Bercutt v. Unknown Heirs

COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
Nov 9, 2020
2020 Ohio 5230 (Ohio Ct. App. 2020)
Case details for

Bercutt v. Unknown Heirs

Case Details

Full title:ALAN S. BERCUTT, aka ALAN BERCUTT, SUCCESSOR TRUSTEE OF THE DONALD ROY…

Court:COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY

Date published: Nov 9, 2020

Citations

2020 Ohio 5230 (Ohio Ct. App. 2020)