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Tax Ease Ohio, LLC v. Blankenship

Court of Appeals of Ohio, Second District, Montgomery

May 12, 2017

TAX EASE OHIO, LLC Plaintiff-Appellee
v.
ROBERT G. BLANKENSHIP Defendant-Appellant

         Civil Appeal from Common Pleas, Trial Court Case No. 15-CV-2946

          MATTHEW G. BURG, Atty. Attorney for Plaintiff-Appellee, Tax Ease Ohio, LLC.

          ROBERT BLANKENSHIP, Defendant-Appellant, pro se.

          OPINION

          BROGAN, V.J.

         {¶ 1} Defendant-appellants, Robert and Ulrike Blankenship, appeal, pro se, from a judgment of the Montgomery County Court of Common Pleas ordering their property forfeited to plaintiff-appellee Tax Ease Ohio, L.L.C. ["Tax Ease"]. The trial court had previously rendered summary judgment against them on Tax Ease's foreclosure complaint concerning a failure to pay real-estate taxes for property located at 1619 Sacramento Avenue in Kettering.

         {¶2}The instant action began on June 5, 2015, when a complaint sounding in foreclosure was filed by Tax Ease against several defendants, including the Blankenships, who along with Robert's brother, Brian Blankenship, are the owners of the property in question. In the complaint, Tax Ease alleged that it was the purchaser and current holder of tax certificates, by which it had acquired the first lien, previously held by Montgomery County, for the amount of delinquent taxes, assessments, interest, and penalties charged against the property. Among other relief, Tax Ease asked for a determination of the amounts due on the certificates plus interest, an order of sale directing the sheriff to conduct a sale of the property with certain conditions, and an order directing that proceeds from the sale be applied to satisfy the amounts owed to it.

         {¶ 3} The Blankenships did not file an answer, and instead filed a request for mediation. The request was granted. A telephone conference was set for August 24. It appears from the record that the telephone number provided to the court was not a working number. Therefore, the conference was reset for September 8. The Blankenships were notified of the need to provide a working telephone number. On August 25, Tax Ease filed a motion for default judgment, as well as a motion for summary judgment.

         {¶ 4} Thereafter, the Blankenships participated in two telephone mediation conferences. According to the Blankenships' appellate brief, a representative of "Housing Source Dayton" agreed to assist them with the mediation. However, they claim the representative only appeared for the third mediation conference. They contend that the representative advised them "not to contest the summary judgment or the appeals process that would follow." A termination of mediation notice was electronically filed on September 22, 2015. The notice stated that the Blankenships did not intend to contest the motion for summary judgment.

         {¶ 5} On October 6, 2015, the trial court issued an order requiring the Blankenships to file a response to the motion for default by October 14, and setting October 21 as the deadline for any reply by Tax Ease. The order also stated that the Blankenships should, by October 21, inform the court as to whether the motion for summary judgment would be contested. The Blankenships failed to file any response or notice of intent to respond, and they never filed an answer to the complaint.

         {¶ 6} The property was initially foreclosed upon in a judgment entry filed on October 23, 2015. The property, however, failed to sell at auction, and the trial court ordered the property to be forfeited to Tax Ease in an entry filed on June 3, 2016. The Blankenships filed the notice of appeal on July 1, 2016.

         {¶ 7} The Blankenships fail to set forth an Assignment of Error as required by App.R. 16(A)(3). However, a review of their appellate brief indicates that they raise error with regard to the mediation process only. They contend that the mediation did not conform to Loc.R. 2.39 of the Court of Common Pleas of Montgomery County, General Division. They further argue that they were prejudiced in the mediation process because the trial court did not provide their correct telephone number to the mediator, thereby causing them to miss the first scheduled conference, and because their representative only attended the third conference. The sole relief they seek is another chance to participate in mediation.

         {¶8}We begin by noting that the trial court's October 23, 2015 judgment of foreclosure was a final appealable order. See Honda Fed. Credit Union v. Shutway, 2d Dist. Champaign No. 2015-CA-40, 2016-Ohio-4982, ¶ 7. The Blankenships should have appealed from that judgment if they had any complaints about the procedures used or legal conclusions reached by the trial court in determining that Tax Ease was entitled to foreclosure of the property. Regardless, even assuming that the Blankenships' arguments were properly before us, we would find no basis to reverse either the trial court's judgment of foreclosure or its judgment of forfeiture.

         {¶ 9} Although mediation in foreclosure actions is permitted - see R.C. 2323.06 and Montgomery County Local Rule 2.39(A)(1) - it is not a required process. Bank of Am. v. Litteral, 191 Ohio App.3d 303, 2010-Ohio-5884, 945 N.E.2d 1114, ¶ 20 (2d Dist.). And, the denial of mediation does not constitute a denial of due-process rights. Id. at ¶ 21.

         {¶ 10} The Blankenships failed to raise any objections or concerns regarding mediation with the trial court. Thus, we may only review that issue under a plain error standard. However, "[i]n appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the ...


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