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Gold Key Realty v. Collins

Court of Appeals of Ohio, Second District

August 9, 2013

SHERRY COLLINS Defendant-Appellant

Civil Appeal from Municipal Court Trial Court Case No. CVG1300017

LAURENCE A. LASKY, Atty. Reg. No. 0002959, 130 West Second Street, Suite 830, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

KELLI A. BARTLETT, Atty. Reg. No. 0077263, 130 West Second Street, Suite 700, Dayton, Ohio 45402 Attorney for Defendant-Appellant



(¶ 1} Defendant-Appellant, Sherry Collins, appeals from a trial court order increasing the amount of her bond from $354 per month to $637 per month. Collins contends that the trial court abused its discretion by increasing the bond to the amount of the contract rent when the court had previously held that the Plaintiff-Appellee, Gold Key Realty dba Landmark Village Apartments (Landmark) had improperly increased the rent.

(¶ 2} We conclude that the trial court did not abuse its discretion by increasing the amount of the bond. Supersedeas bonds protect successful trial court plaintiffs from damages that result from appeals being taken. Collins elected to stay in the leased premises after restitution was ordered, and Landmark could have rented the premises to another party for a minimum of $637. Under the circumstances, the bond is not unreasonable. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

(¶ 3} In 2009, Sherry Collins signed a lease agreement with Landmark, which is a HUD-subsidized property located in Fairborn, Ohio. Landmark has 165 units, almost all of which are subsidized. Only one or two tenants are paying market rent. There is a difference between "market rent" and "contract rent." Market rent is what a comparable apartment would rent for in the area. However, contract rent is less, and is what the landlord can obtain from HUD. The tenant is required to pay a share of the contract rent, depending on the tenant's income. In Collins's case, the initial amount she was required to contribute was zero.

(¶ 4} When Collins signed the lease agreement, she also filled out a certification concerning her income and other sources of funds, her obligations, and her family composition. Recertifications were then required by HUD on a yearly basis. As part of the recertification process, tenants must personally come into the rental office, answer questionnaires, and sign releases for income and asset verification. If a tenant fails to comply and the year-term expires without recertficiation, the rent for the tenant is the contract rate, and Landmark must return any money that HUD contributes for the tenant.

(¶ 5} Collins complied with the recertification requirements in 2010 and 2011. However, in 2012, Collins did not fill out recertification papers. Landmark sent reminder notices to Collins in August, September, and October 2012, indicating that Collins had to complete the recertification process by November 30, 2012. Collins was also informed that if she failed to complete the process, Landmark had the right to terminate her lease and charge her the contract rate, which was $637 per month.

(¶ 6} On August 6, 2012, Collins signed an interim recertification, which was a mid-year change or adjustment used to place Collins's husband, Darrell, on the lease. Interim recertifications are used to make changes during the course of a lease and do not affect the requirement to complete the annual recertification. Based on Darrell's income, Collins's share of the rent increased from zero to $351 per month.[1] Collins was upset about her husband's addition to the lease, and refused to engage in the recertification process because she did not believe that Landmark could force her to add someone to her lease.

(¶ 7} Based on the failure to recertify, Landmark sent Collins a notice of termination in early December 2012. The notice indicated that the tenancy would be terminated December 16, 2012, and that because of the failure to recertify, the rent would be increased to $637. The notice also gave Collins the right to come into Landmark's office within ten days to discuss the proposed termination. Neither Collins nor her husband came into the office during that time.

(¶ 8} On December 17, 2012, Landmark delivered a three-day notice of termination to the Collinses. They did not pay the $637 monthly rent in December 2012, nor did they pay it in January or February 2013. In fact, they paid no rent at all for these months. Landmark repaid HUD $1, 053 for the months of December, January, and February.

(¶ 9} In January 2013, Landmark filed a complaint in forcible entry and detainer against Sherry Collins and all others residing in the apartment. Landmark requested restitution of the premises and a money judgment for the unpaid rent for December and January, plus all other rent that accrued before the premises were vacated. After Collins filed an answer, the matter was tried before a magistrate in February 2013. The magistrate concluded that Landmark had technically failed to completely comply with the HUD Handbook when it sent the reminder notices. Based on this finding, the magistrate further concluded that Landmark had improperly raised the rent to $637 on December 1, 2012. However, the ...

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