Opinion
No. 109209
10-22-2020
DITECH FINANCIAL, L.L.C., Plaintiff-Appellee, v. VAT MANAGEMENT, L.L.C., ET AL., Defendants-Appellants.
Appearances: Cooke Demers, L.L.C., and David J. Demers, for appellee. Sandor W. Sternberg, for appellants.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-17-875340
Appearances:
Cooke Demers, L.L.C., and David J. Demers, for appellee. Sandor W. Sternberg, for appellants. SEAN C. GALLAGHER, P.J.:
{¶ 1} Defendant-appellant VAT Management, L.L.C. ("VAT") appeals the trial court's judgment confirming the sale of the foreclosed property in this case. Upon review, we affirm.
Background
{¶ 2} On February 2, 2017, plaintiff-appellee Ditech Financial, L.L.C. ("Ditech") filed an in rem complaint for foreclosure against VAT. Summary judgment was granted in favor of Ditech. On July 17, 2018, the trial court issued a judgment entry and decree of foreclosure. VAT filed an appeal from that judgment in Ditech Fin., L.L.C. v. VAT Mgt., L.L.C., 8th Dist. Cuyahoga No. 107546, 2020-Ohio-485 ("Ditech I"). VAT also filed a motion for stay of execution and waiver of supersedeas bond. On August 24, 2018, the trial court denied the motion and indicated that pursuant to Civ.R. 62(B) a stay of execution could be obtained by giving an adequate supersedeas bond. VAT filed a similar motion on appeal with this court in Ditech I, and that motion also was denied.
The other defendant named in the action was the Cuyahoga County Treasurer.
{¶ 3} During the pendency of the first appeal, the foreclosed property was sold at auction. On December 24, 2018, Ditech filed an unopposed motion for confirmation of sale and distribution of proceeds. The trial court held ruling on the motion in abeyance "due to the pending appeal." On July 30, 2019, Ditech filed a motion to lift the stay because VAT had not posted a supersedeas bond and for confirmation of sale. VAT did not oppose the motion. On October 16, 2019, the trial court entered a journal entry granting Ditech's motion and a judgment entry confirming the sale and ordering the distribution of the proceeds. On November 15, 2019, VAT filed a notice of appeal challenging the trial court's judgment confirming the sale.
{¶ 4} On February 13, 2020, the Ditech I appeal was dismissed. This court noted that "VAT neither obtained a stay nor posted a supersedeas bond after filing its notice of appeal" and that "the [foreclosed] property has been sold, the order of confirmation has been carried out, and the proceeds from the sale have been distributed." Ditech I at ¶ 17 and 21. As a result, this court concluded that "VAT's appeal is moot and there is no relief that this court can afford to VAT." Id. at ¶ 21, citing Provident Funding Assocs., L.P. v. Turner, 8th Dist. Cuyahoga No. 100153, 2014-Ohio-2529, ¶ 6; Blisswood Village Home Owners Assn. v. Genesis Real Estate Holdings Group, L.L.C., 8th Dist. Cuyahoga No. 105861, 2018-Ohio-1092, ¶ 11; U.S. Bank Trust Natl. Assn. v. Janossy, 2018-Ohio-2228, 114 N.E.3d 668, ¶ 7 (8th Dist.).
We note that although R.C. 2329.45 provides a remedy of restitution for appellants in foreclosure cases after the property has been sold, the statute only applies when the appealing party obtained a stay of the distribution of proceeds. Provident Funding Assocs., L.P., 8th Dist. Cuyahoga No. 100153, 2014-Ohio-2529, at ¶ 5-6, citing Bankers Trust Co. of California N.A. v. Tutin, 9th Dist. Summit No. 24329, 2009-Ohio-1333, ¶ 11.
Law and Analysis
{¶ 5} Under its sole assignment of error, VAT claims the trial court abused its discretion by confirming the sale of the property while the appeal of the foreclosure judgment was pending. VAT cites no authority to support this claim.
{¶ 6} Ohio law recognizes that a confirmation of sale is a separate and distinct order from the decree of foreclosure. Mid Am. Mtge., Inc. v. Scott, 8th Dist. Cuyahoga No. 106099, 2018-Ohio-1403, ¶ 4. "Once the foreclosure decree is final and upon completion of the appeals process, the rights and responsibilities of the parties under the foreclosure decree may no longer be challenged." Farmers State Bank v. Sponaugle, 157 Ohio St.3d 151, 2019-Ohio-2518, 133 N.E.3d 470, ¶ 18, citing CitiMortgage, Inc. v. Roznowski, 139 Ohio St.3d 299, 2014-Ohio-1984, 11 N.E.3d 1140, ¶ 39. "An appeal of the confirmation of sale is limited to challenging the confirmation order itself and to issues related to confirmation proceedings * * *." Id. at ¶ 19, citing Roznowski at ¶ 40. For example, "[a] mortgagor may contest amounts expended by a mortgagee for inspections, appraisals, property protection, and maintenance during proceedings to confirm the foreclosure sale * * *." Roznowski at ¶ 43. "The trial court's decision to confirm a sheriff's sale of property will not be reversed absent an abuse of discretion." Sponaugle at ¶ 19, citing Ohio Savs. Bank v. Ambrose, 56 Ohio St.3d 53, 55, 563 N.E.2d 1388 (1990).
{¶ 7} On this appeal, VAT claims the trial court erred by entering the confirmation order while the appeal from the order of foreclosure was still pending. However, as this court has previously recognized, "[u]nless the decree of foreclosure is stayed, the trial court has jurisdiction to proceed on the confirmation of sale." Scott at ¶ 4. Moreover, when there is no stay, "despite a pending appeal, a trial court retains jurisdiction to enforce the final judgment and initiate proceedings in support of that judgment." Id., citing Chase Manhattan Mtge. Corp. v. Urquhart, 12th Dist. Butler Nos. CA2004-04-098 and CA2004-10-271, 2005-Ohio-4627, ¶ 28; see also CitiMortgage, Inc. v. Snider, 2016-Ohio-8111, 74 N.E.3d 957, ¶ 17 (11th Dist.); MHN Sub I, L.L.C. v. Donnelly, 11th Dist. Lake No. 2014-L-031, 2014-Ohio-4128, ¶ 17.
{¶ 8} This court already concluded in Ditech I that VAT never obtained a stay of the confirmation of the sale or the distribution of proceeds by posting the required bond. Ditech I at ¶ 21. Therefore, the trial court had jurisdiction to proceed on the confirmation of sale. Scott at ¶ 4. VAT is precluded from challenging the foreclosure decree, and upon our review of the record before us, we are unable to find any abuse of discretion by the trial court in confirming the sale. The order of confirmation has been carried out, and the proceeds from the sale have been distributed. As a result, VAT is not entitled to any relief. See HSBC Bank, USA, Natl. Assn. v. Surrarrer, 8th Dist. Cuyahoga No. 106316, 2019-Ohio-1539, ¶ 10. VAT's sole assignment of error is overruled.
{¶ 9} Judgment affirmed.
It is ordered that appellee recover from appellants 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. /s/_________
SEAN C. GALLAGHER, PRESIDING JUDGE ANITA LASTER MAYS, J., and
EILEEN A. GALLAGHER, J., CONCUR