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Kapszukiewicz v. Chiaverini, Inc.

Court of Appeals of Ohio, Sixth District

August 9, 2013

Wade Kapszukiewicz, as Treasurer of Lucas County, Ohio Appellee
v.
Chiaverini, Inc., et al. Appellant

Trial Court No. TF12-1092

Julia R. Bates, Lucas County Prosecuting Attorney, and Suzanne Cotner Mandros, Assistant Prosecuting Attorney, for appellee.

George C. Rogers, for appellant.

DECISION AND JUDGMENT

PIETRYKOWSKI, J.

(¶ 1} Chiaverini, Inc. appeals a September 14, 2012 judgment of the Lucas County Court of Common Pleas granting the Lucas County Treasurer, appellee, a judgment of foreclosure on existing liens for delinquent taxes, special assessments, penalties and interest against two parcels of real property. Under the judgment, the total lien amount was determined to be $59, 844.40. The judgment ordered transfer of title to the properties, fee simple without appraisal and without sale, to the Lucas County Land Reutilization Corporation after expiration of a 45 day alternative right to redemption period as defined in R.C. 323.65(K).

(¶ 2} Chiaverini appeals the judgment to this court.

(¶ 3} The Lucas County Prosecutor filed the foreclosure complaint in this case on March 29, 2012. Wade Kapszukiewicz, the Treasurer of Lucas County, Ohio, is the named plaintiff Appellant, S & W Drive In Systems, Inc., and Jones & Scheich were named defendants as having or claiming to have an interest in the properties as set forth in title work attached to the complaint, as were the State of Ohio Department of Taxation, State of Ohio Department of Job & Family Services, and the City of Toledo Department of Public Utilities. The City of Toledo, Department of Development was also named a defendant. The defendants were served by certified mail.

(¶ 4} Appellant has not claimed lack of in personam jurisdiction over it or insufficiency of service of process. In its answer, appellant asserted the defense that "[t]he complaint fails to comply with R.C. 5721.18(D)."

(¶ 5} On July 26, 2012, appellee filed a motion for summary judgment, stating that the foreclosure proceedings were instituted pursuant to R.C. 5721.18(A) and that there existed no dispute of material fact on whether the elements for foreclosure under R.C. 5721.18(A) had been established by materials submitted in support of the motion. Appellant opposed the motion arguing that the claim for foreclosure was barred by failure to comply with the requirements of R.C. 5721.18(D). Appellant argued that pursuant to R.C. 5721.18(D) a foreclosure complaint for relief under R.C. 5721.18(A) must set forth the grounds upon which an action in rem under R.C. 5721.18(B) or (C) was precluded. Appellant argued that without such a statement in the complaint, the complaint failed to state a claim upon which relief could be granted.

(¶ 6} The trial court granted the motion for summary judgment and issued the judgment in foreclosure. This appeal followed.

(¶ 7} On appeal, appellant restates its argument under R.C. 5721.18(D):

Assignment of Error
The trial court erred in granting summary judgment on the tax delinquency complaint as an in personam action filed under R.C. 5721.18(A), when said complaint failed to specify, as required by subsection (D), why an in rem complaint was not able to be filed under subsections (B) or (C).

(¶ 8} Appellee contends that the revised code affords counties numerous statutes to utilize in collecting taxes and that where taxes have been delinquent for greater than two years, the county has a choice of remedy, including whether to pursue foreclosure under R.C. 5721.18 (A), (B), or (C). Appellee argues that proceeding under R.C. 5721.18(A) in a given case may have practical advantages including transfer of clear title to the transferee and avoiding potential due process notice problems in the case. Here ...


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