Opinion
No. 105850
04-19-2018
BLISSWOOD VILLAGE HOME OWNERS ASSOCIATION PLAINTIFF-APPELLEE v. GENESIS REAL ESTATE HOLDINGS GROUP, L.L.C., ET AL. DEFENDANTS-APPELLANTS
ATTORNEY FOR APPELLANTS Mark Novak 4154 Ardmore Road Cleveland, OH 44121 ATTORNEYS FOR APPELLEES For Blisswood Village Home Owners Association Jared Klebanow Steven B. Potter Dinn, Hochman & Potter, L.L.C. 5910 Landerbrook Drive, Suite 200 Cleveland, OH 44124 For Chase Manhattan Mortgage Corporation Chase Manhattan Mortgage Corporation 1500 North 19th Street Monroe, LA 71201 For Dinardo Family Limited Partnership, a Nevada L.P. Dinardo Family Limited Partnership, a Nevada L.P. c/o Nevada Registrations USA, Inc. 3315 E. Russell Road, Ste. A-4 #435 Las Vegas, NV 89120 For Dinardo Family Limited Partnership, a Wyoming L.P. Dinardo Family Limited Partnership, a Wyoming L.P. c/o Nevada Registrations, Inc. 1621 Central Avenue Cheyenne, MY 82001 For Cuyahoga County Fiscal Officer Michael C. O'Malley Cuyahoga County Prosecutor By: Anthony J. Giunta Assistant Prosecuting Attorney 310 W. Lakeside Ave., Suite 300 Cleveland, OH 44113
JOURNAL ENTRY AND OPINION JUDGMENT: DISMISSED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-15-853416 BEFORE: McCormack, J., Kilbane, P.J., and E.T. Gallagher, J.
ATTORNEY FOR APPELLANTS
Mark Novak
4154 Ardmore Road
Cleveland, OH 44121
ATTORNEYS FOR APPELLEES
For Blisswood Village Home Owners Association
Jared Klebanow
Steven B. Potter
Dinn, Hochman & Potter, L.L.C.
5910 Landerbrook Drive, Suite 200
Cleveland, OH 44124
For Chase Manhattan Mortgage Corporation
Chase Manhattan Mortgage Corporation
1500 North 19th Street
Monroe, LA 71201 For Dinardo Family Limited Partnership, a Nevada L.P. Dinardo Family Limited Partnership, a Nevada L.P.
c/o Nevada Registrations USA, Inc.
3315 E. Russell Road, Ste. A-4 #435
Las Vegas, NV 89120 For Dinardo Family Limited Partnership, a Wyoming L.P. Dinardo Family Limited Partnership, a Wyoming L.P.
c/o Nevada Registrations, Inc.
1621 Central Avenue
Cheyenne, MY 82001
For Cuyahoga County Fiscal Officer
Michael C. O'Malley
Cuyahoga County Prosecutor By: Anthony J. Giunta
Assistant Prosecuting Attorney
310 W. Lakeside Ave., Suite 300
Cleveland, OH 44113 TIM McCORMACK, J.:
{¶1} Defendant-appellant Genesis Real Estate Holdings Group, L.L.C. ("Genesis") brings this appeal challenging the trial court's order confirming the sale of real property in this foreclosure action instituted by plaintiff-appellee Blisswood Village Home Owners Association ("Blisswood").
{¶2} For the reasons that follow, we dismiss this appeal as moot. Procedural and Substantive History
{¶3} On October 28, 2015, Blisswood instituted a foreclosure action against Genesis and other defendants holding or claiming interests in a residential condominium unit located in Euclid, Ohio. Genesis was the title owner of record of Unit E, and Blisswood is the unit owners association for the condominium complex.
{¶4} The foreclosure complaint sought a decree of foreclosure against the unit and requested a judgment in the amount of $1,154.46, plus interest, for unpaid monthly assessments for common expenses, late fees, interest, and charges for collection costs. Blisswood alleged in the complaint that it had obtained a continuing lien on the unit for the unpaid assessments. The corresponding certificate of lien was filed with Cuyahoga County on September 22, 2015, as instrument number 201509220282.
{¶5} On August 11, 2016, Blisswood filed a motion for summary judgment. On September 21, 2016, a magistrate granted this motion, and the trial court adopted the magistrate's decision on October 31, 2016.
{¶6} On December 22, 2016, Genesis filed a motion for relief from judgment and a motion for stay of execution of judgment. On January 2, 2017, the trial court deemed the motion for stay of execution a motion to stay confirmation of the sheriff's sale and granted the motion, pending the disposition of the motion for relief from judgment. The trial court denied the motion for relief from judgment on January 3, 2017.
{¶7} On January 17, 2017, the property was sold at a sheriff's sale to Blisswood Village Reinvestment, L.L.C. On April 27, 2017, the trial court issued a decree of confirmation of the sale.
{¶8} On May 30, 2017, Genesis initiated this appeal. Genesis did not file a motion to stay either the confirmation of the sale or satisfaction of the judgment pending this appeal. On June 6, 2017, the proceeds of the sheriff's sale were distributed. On June 16, 2017, Blisswood filed a motion to dismiss the appeal as moot because the property was sold at a sheriff's sale and the proceeds have been distributed. Law and Analysis
{¶9} Genesis presents two assignments of error for our review. First, Genesis argues that the trial court erred as a matter of law when it confirmed the foreclosure sale because it lacked subject matter jurisdiction over the action. Second, Genesis argues that to the extent the confirmation order moots their appeal, the trial court committed reversible error because the purchaser of the property is so closely related to the appellee Blisswood that this court can return title to Genesis under the doctrine outlined in Fannie Mae v. Hicks, 2016-Ohio-8484, 77 N.E.3d 380 (8th Dist.).
{¶10} Before addressing these assignments of error, we must address Blisswood's motion to dismiss.
{¶11} In foreclosure actions, a party can challenge on appeal the order of foreclosure and the confirmation of sale. CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 39. Genesis failed to appeal from the order of foreclosure. As such, any argument pertaining to the validity of that order is now barred. U.S. Bank, Natl. Assn. v. Sanders, 2017-Ohio-1160, 88 N.E.3d 445, ¶ 16 (8th Dist.), citing Beneficial Ohio, Inc. v. LaQuatra, 8th Dist. Cuyahoga No. 99860, 2014-Ohio-605, ¶ 5, Third Fed. S. & L. Assn. of Cleveland v. Rains, 8th Dist. Cuyahoga No. 98592, 2012-Ohio-5708, ¶ 10-12. The only arguments this court can properly consider on appeal are those related to the procedures employed in the sale and whether the trial court abused its discretion in confirming the sale. Sanders at ¶ 18.
{¶12} We decline to consider Genesis's arguments challenging the confirmation of sale based on jurisdiction because they are moot. In cases where a party successfully appeals from a confirmation of sale, and the proceeds of the sale have not yet been distributed, the remedy is limited to restitution from the monetary proceeds of the sale. R.C. 2329.45. Such a remedy is appropriate, though, only when the appealing party sought and obtained a stay of the distribution of the proceeds. Provident Funding Assocs., L.P. v. Turner, 8th Dist. Cuyahoga No. 100153, 2014-Ohio-2529, ¶ 6, citing Bankers Trust Co. of California, N.A. v. Tutin, 9th Dist. Summit No. 24329, 2009-Ohio-1333, ¶ 11.
{¶13} Here, Genesis did not seek a stay of the distribution of proceeds following the confirmation of the sheriff's sale. The proceeds have been distributed and are thus no longer under the court's jurisdiction. Because it is therefore impossible for the court to grant any relief, this appeal should be dismissed as moot. Wells Fargo Bank, N.A. v. Cuevas, 8th Dist. Cuyahoga No. 99921, 2014-Ohio-498, ¶ 22.
{¶14} Genesis argues that this court's holding in Hicks, 2016-Ohio-8484, 77 N.E.3d 380, mandates that title to the property be returned to Genesis because Blisswood Village Reinvestment, L.L.C. was not a good faith, third-party purchaser of the property. We disagree.
{¶15} In Hicks, this court found that the protections for good faith purchasers at foreclosure sales laid out in R.C. 2325.03 and 2329.45 do not apply to plaintiff-purchasers. As a result of that conclusion, the court in Hicks found that the trial court "erred as a matter of law by not vacating the foreclosure sale and by ordering [the plaintiff] to pay [the debtor] restitution" pursuant to R.C. 2329.45. Id. at ¶ 19.
{¶16} Our holding in Hicks does not negate the fact that Genesis failed to file a direct appeal from a judgment of foreclosure and subsequently failed to seek a stay of the distribution of the proceeds of the sheriff's sale. Because the issue of mootness was not considered by the Hicks court, the holding in that case cannot be construed to remedy Genesis's failure to pursue a reversal of the foreclosure decree or a stay of the distribution of the sale proceeds. Therefore, Blisswood's motion to dismiss this appeal as moot is granted.
{¶17} Appeal dismissed.
It is ordered that appellee recover of appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
TIM McCORMACK, JUDGE MARY EILEEN KILBANE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR