IN THE SUPREME COURT OF OHIO Parkview Federal Savings Bank: appellee, V. 1 AV, 7 On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District Robert L. Grimm appellant. Court of Appeals Case No. 97704 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT ROBERT L. GRIMM Robert L. Grimm c nr LL_ J1V LVOKIIG Highland Heights, Ohio 44143 440-473-6006 bob@grimin.com COUNSEL FOR APPELLEE, Parkview Federal Jennifer Monty (76409) 323 W Lakeside #200 Cleveland, Ohio 44113 216-685-1136 jmonty9weltman.com JAN 19 2012 CLERK Of COURT SUPREMECUURTU ONIA
TABLE of CONTENTS EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC or GREAT GENERAL INTEREST and INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION... 1 STATEMENT of THE CASE and FACTS... 1 ARGUMENTS IN SUPPORT of PROPOSITIONS OF LAW... 2 Pronosition of Law 1: A citizen has the right to have his foreclosure case heard and decided by the appellate court prior to the property being sold and the citizen evicted from the property... 3 Proposition of Law 2: The appellate courts cannot dismiss sua sponte a foreclosure case appeal as `moot' because the trial court has sold the property...4 Proposition of Law 3: This court needs to resolve the conflict between Appellate courts on the issue of `mootness' in foreclosure cases...4 CONCLUSION......6 CERTIFICATE of SERVICE... 7
EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC or GREAT GENERAL INTEREST and INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION The appellate courts are so focused on decreasing the backlog of cases, especially in foreclosures, that they are dismissing appeals and depriving homeowners of their right to an appeal prior to losing their homes. Additionally the originating courts are finding creative ways to benefit the foreclosing banks without due judicial process. The appellate courts are not consistent on when to and when not to dismiss foreclosure cases as `moot'. This case gives this court the opportunity to correct the situation, and provide citizens the benefit of the appellate court's review prior to losing their homes. STATEMENT of THE CASE and FACTS The Plaintiff filed a foreclosure Marsh of lien in December 2006 against several defendants. The case progressed slowly due to flawed documents and the need for reformation. On September 3, 2009, the trial court ordered reformation of the flawed mortgage and permitted a Sheriff sale, stating `no just cause for delay'. The appellate court affirmed the lower court's decision. On October 28, 2010, an alias order of sale with reappraisal was issued. In November an appraisal was completed for the amount of $300,000, by the Sheriff's disinterested freeholders. On November 5, 2010, this Defendant filed a Motion to Reject the Sheriff's Land Appraisal of $300,000. On April 20, the magistrate issued his decision denying both a requested continuance 1
and the Motion to Reject the Land Appraisal. Timely objections were filed, and on June 21, 2011, the court adopted the magistrate's decision and found `no just cause for delay'. A supercedeas bond was posted on July 18, 2011. On November 17, 2011, the appellate court dismissed the appeal as the order was deemed not appealable as a final order, because the lower court's entry did not include a clear pronouncement of the trial court's judgment and the relief granted by the court, and did not enable the parties to refer to the entry and determine their responsibilities and obligations. On December 12, 2011, the trial court issued a Decree of Confirmation stating it was `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 CROCK REAL ESTATE INVESTMENTS II, LLC A GOOD AND SUFFICIENT DEED THEREOF. WRIT OF POSSESSION AGAINST ALL PARTY DEFENDANTS ORDERED ISSUED TO PURCHASER'. On December 14, 2011, this defendant filed an appeal of the Decree of Confirmation. On January 5, 2012, the appellate court dismissed the appeal sua sponte as moot because `the property has been sold by the trial court's entry'. A motion for reconsideration was filed and denied by the appellate court on January 11, 2012. ARGUMENTS IN SUPPORT of PROPOSITIONS OF LAW Citizens have the right to receive a decision from the appellate court prior to having their homes 2
foreclosed. The appellate court has in several prior cases decided that `an order confirming the sale... is a final appealable order" Sky Bank v Mamone (1993) CA- 63222, Gaul v Leeper (1993) Additionally, O.R.C. 2505.02 (B) gives the right to have an appeal heard by the appellate court when a Decree of Confirmation has been issued by the lower court after it has declared `no just cause for delay', not once but twice. Proposition of Law 1: A citizen has the right to have his foreclosure case heard and decided by the appellate court prior to the property being sold and the citizen evicted from the property My argument in support is quite brief. It can be brief, because it is quite obvious that the appellate court has erred in disniissing the appeal as `moot'. When a trial court has declared `no just cause for delay', the appellate court cannot dismiss an appeal as `moot'. A Decree of Confirmation is a very final order: it permits the bank to evict the homeowner and sell the property. A citizen has a right to be heard on a properly filed appeal. A stay pending the appellate court decision and supersedeas bond was granted and bond was posted. The appellate court found error by the trial court in its order of June 21, 2011. The trial court did not write a proper order. Neither party should be penalized for an error by the court. The lower court should have either had the integrity or common sense to reissue a proper appealable order concerning the land appraisal value. The lower court should not have executed a runaround by issuing a Decree of Confirmation. The Decree of Confirmation should not have been issued until the appellate court was able to either confirm, modify, or remand the land appraisal value order. The case should have been reactivated/reinstated. Deutsche Bank National Company v Robert A. Caldwell, et al, cv-09-3
697845 & ca-11-96249, O.R.C. 2505.02 The appellate court should not have declared the appeal `moot'. Pronosition of Law 2: The appellate courts cannot dismiss sua sponte a foreclosure case appeal as `moot' because the trial court has sold the property O.R.C. 2505.02 (B) gives the right to an appeal. The appellate court has in several prior cases decided that `an order confinning the sale... is a final appealable order" Sky Bank v Mamone (1993) CA- 63222, Gaul v Leeper (1993) The appellate court determined that it could dismiss the appeal because the lower court had sold the property. The appellate court erred in obstructing the defendants' right to be heard. The issue is not moot. The appellate court and this court have the ability to overtum the lower court's decision to `confirm, approve... and direct' if either find error in the trial's courts actions. This is the value to the public of the higher courts. Proposition of Law 3: This court needs to resolve the conflict between Appellate courts on the issue of `mootness' in foreclosure cases There are many conflicting decisions on the issue of when an appeal in a foreclosure case is `moot' and when it is not. I will not repeat all the arguments presented over the years by the lower courts. Perhaps U.S. Bank Natl. Assn. v. Mobile Assoc. Natl. Network Sys., Inc:, 2011- Ohio-5284 and Washington Mut. Bank, F.A. v. Wallace, 194 Ohio App.3d 549, 2011-Ohio-4174 citing various other cases say it best: `there is a split of authority as to the mootness issue when the subject property has been sold and the proceeds distributed. Everhome Mtge. Co. v. Baker, 10th Dist. No. IOAP-534, 2011-Ohio-3303, 12, citing Charter One Bank, F.S.B. v. Mysyk, 11th Dist. No. 2003-G-2528, 2004-Ohio-4391, 4 ("Once the Sheriffs sale occurred, the merits of the trial court's foreclosure order became moot. 4
* * * No relief can be afforded once the property has been sold at foreclosure sale because an appellate court is unable to grant any effectual relief at that point."). { 17} Similarly, in Bankers Trust Co., of California, N.A. v. Tutin, 9th Dist. No. 24329, 2009-Ohio-1333, the property was sold at a sheriffs sale, and the trial court confirmed the sale. Id. at 2-3. R.C. 2329A5 provides as follows: "If ajudgment in satisfaction of which lands, or tenements are sold, is reversed, such reversal shall not defeat or affect the title of the purchaser. In such case restitution must be made by the judgment creditor of the money for which such lands or tenements were sold, with interest from the day of sale." No. 11AP-155 8 Bankers Trust moved to dismiss the underlying appeal on the grounds of mootness, the proceeds of the sheriffs sale having been distributed. The court dismissed the appeal, reasoning that once the property had been sold, title had transferred to a third party, and the proceeds of the sale had been distributed, a successful appellant no longer had a remedy. Id. at 16. { 19} Other courts have taken the position that R.C. 2329.45 preserves the remedy of restitution, even after the property has been sold at sheriffs sale and the proceeds distributed. See, e.g., LaSalle Bank Natl. Assn. v. Murray, 179 Ohio App.3d 432, 2008-Ohio-6097; Ameriquest Mtge. Co. v. Wilson, 11th Dist. No. 2006-A-0032, 2007-Ohio-2576; Chase Manhatten Mtge. Corp. v. Locker, 2d Dist. No. 19904, 2003-Ohio-6665. Ohio courts have recognized that even where the real property itself is no longer recoverable, the case is not moot because the court is not without power to offer a remedy. "[Djebtors may still obtain relief in the form of restitution from judgment creditors. Restitution is appropriate in cases such as these, where the foreclosed property has been sold." Ameriquest Mtge. Co. at 19. {120} Some districts have explicitly held that a foreclosure action must be mooted where no stay has been requested. See U.S. Bank Natl. Assoc. v. Marcino, 7th Dist. No. 09 JE 29, 2010-Ohio-6512, 14 and cases cited therein. { 21 } hi Everhome Mtge. Co., this court cited with approval Ameriquest Mtge. Co., finding that the reasoning in that case is more persuasive than the broader application of mootness such as is found in Mysyk. { 22} This court stated as follows: * * * It is a suspect argument to assert that a void, voidable, or merely erroneous judgment might evade appellate review simply because it was rendered rapidly, completely, and without notice. If we test the Mysyk rule by taking it to its logical extreme, such a holding would allow no recourse in a case in which a foreclosure action proceeded, completely in error and without any notice to the property owner, from complaint to default to foreclosure and sale. Admittedly, * * * that is not the posture of the present case, but adopting mootness as a rule of convenience here would invite injustice in future cases presenting harsher facts. Id. at 14. {123} Following in the footsteps of Everhome Mtge. Co., we conclude that the matter is not moot because restitution remains a viable remedy, particularly in light of the Parks' argument that the purchasers of the properties are straw purchasers created and controlled by the Bank. 5
{ 24} The motion to dismiss the appeal as moot is denied' Obviously this issue is of great interest and importance to the defendant, the public and the courts. CONCLUSION For the reasons discussed above, this case involves matters of public and great general interest and a substantial constitutional right. The appellant requests that this court accept jurisdiction in this case so that the important issues presented will be reviewed on the merits. Respectfully submitted, 6
CERTIFICATE of SERVICE I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinary U.S. mail on January 13, 2012 to counsel for the appellee: Jennifer Monty (76409) 323 W Lakeside #200 Cleveland, Ohio 44113
Court of Appeals of Ohio, Eighth District County of Cuyahoga Gerald E. Fuerst, Clerk of Courts PARKVIEW FEDERAL SAVINGS BANK Appellee COA NO. LOWER COURT NO. 97704 CP CV-609684 -vs- COMMON PLEAS COURT ROBERT L. GRIMM, ET AL. Appellant MOTION NO. 450961 Date 01/05/12 Journal Entry moot. The property has been sold per the trial court's entry of Sua sponte, the appeal is dismissed as December 12, 2011. FILED AND JOURNALIZED PER APP;R. 22(C) JrAUY n 2 ^ i Lu14 Judge MELODY J. STEWART, Concurs Administrative Judg PATRICIA A. BLACKMON a4j ^C Ul j 3 9
Court of Appeals of Ohio, Eighth District County of Cuyahoga Gerald E. Fuerst, Clerk of Courts PARKVIEW FEDERAL SAVINGS BANK Appellee COA NO. LOWER COURT NO. 97704 CP CV-609684 -vs- COMMON PLEAS COURT ROBERT L. GRIMM, ET AL. Appellant MOTION NO. 451104 Date 01/11/12 Journal Entry Motion by Appellant for reconsideration is denied. The appeal was dismissed as moot in entry 450961 dated January 5, 2012 because the property has been sold. ^^-9ieua^^^ ^PPEALS.- DEP^. Judge MELODY J. STEWART, Concurs dministrative Judge PATRICIA A. BLACKMON