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Blisswood Village Home Owners Association v. Genesis Real Estate Holdings Group, L.L.C.

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 22, 2018

BLISSWOOD VILLAGE HOME OWNERS ASSOCIATION PLAINTIFF-APPELLEE
v.
GENESIS REAL ESTATE HOLDINGS GROUP, L.L.C., ET AL. DEFENDANTS-APPELLANTS

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-852869

          ATTORNEY FOR APPELLANT Mark Novak

          ATTORNEYS FOR APPELLEE Steven B. Potter Jared Klebanow Dinn, Hochman & Potter, L.L.C.

          For Cuyahoga County Treasurer & Cuyahoga County Fiscal Officer Michael C. O'Malley Cuyahoga County Prosecutor, Anthony J. Giunta Assistant County Prosecutor

          BEFORE: Kilbane, P.J., McCormack, J., and E.T. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, PRESIDING JUDGE

         {¶1} In this consolidated appeal, defendant-appellant, Genesis Real Estate Holdings Group, L.L.C. ("Genesis"), appeals from the trial court's orders of foreclosure and confirmation of the sheriff's sale in this foreclosure action instituted by plaintiff-appellee, Blisswood Village Home Owners Association ("Blisswood"). For the reasons set forth below, we dismiss Genesis's appeal from the orders of foreclosure and confirmation of the sale as moot and affirm the trial court's award of attorney fees to Blisswood.

         {¶2} In October 2015, Blisswood instituted a foreclosure action against Genesis and other defendants holding or claiming interests in real property located at 430 Kenwood Drive, Unit E, in the city of Euclid, Ohio ("the property"). Genesis was record title holder of the property. The foreclosure complaint sought a decree of foreclosure against the property and also sought a judgment in the amount $2, 900.96, plus interest, for unpaid monthly assessments for common expenses as well as late fees and other charges, including reasonable attorney fees, under R.C. 5311.18.

         {¶3} In October 2016, Blisswood moved for summary judgment. In November 2016, the trial court granted summary judgment in Blisswood's favor and entered a decree of foreclosure. In December 2016, the trial court granted Blisswood's unopposed motion for attorney fees under R.C. 5311.18(A)(1)(b) and awarded $5, 355.50 in attorney fees to Blisswood. The trial court further ordered that the attorney fees be paid from the proceeds of the sale. Later that same month, Genesis filed its appeal from the decree of foreclosure.

         {¶4} The record reflects that Genesis did not request a stay of the judgment of foreclosure. In January 2017, the property was sold at sheriffs sale to Blisswood Village Reinvestment, L.L.C. ("BVR"). In February 2017, the trial court confirmed the sale, and in March 2017, the proceeds from the sheriffs sale were distributed. In March 2017, Genesis appealed the confirmation of the sale. The record further reflects that Genesis did not seek a stay of the distribution of the proceeds of the sale.

         {¶5} That same month, Blisswood moved to dismiss Genesis's appeal from the order of foreclosure, relying on several cases from this district for the proposition that Genesis's appeal is moot because the property had been sold and the proceeds of the sale distributed. See Provident Funding Assocs., L.P. v. Turner, 8th Dist. Cuyahoga No. 100153, 2014-Ohio-2529; Wells Fargo Bank, N.A. v. Cuevas, 8th Dist. Cuyahoga No. 99921, 2014-Ohio-498; Beneficial Ohio, Inc. v. LaQuatra, 8th Dist. Cuyahoga No. 99860, 2014-Ohio-605; Bank of New York Mellon v. Adams, 8th Dist. Cuyahoga No. 99399, 2013-Ohio-5572; Third Fed. S. & L. Assn. of Cleveland v. Rains, 8th Dist. Cuyahoga No. 98592, 2012-Ohio-5708.

         {¶6} In April 2017, this court granted Blisswood's motion to dismiss Genesis's appeal from the decree of foreclosure. Later that month, Genesis, relying on this court's decision in Fannie Mae v. Hicks, 2016-Ohio-8484, 77 N.E.3d 380 (8th Dist.), moved for reconsideration of the dismissal. We granted Genesis's motion for reconsideration. In June 2017, we consolidated Genesis's appeals from the decree of foreclosure and the order confirming the sheriffs sale.

         {¶7} Genesis now raises the following three assignments of error for our review.

Assignment of Error One
The trial court erred as a matter of law when it granted [Blisswood's] motion for summary judgment in foreclosure because [Genesis] established a genuine issue of material fact that the assessments underlying [Blisswood's] lien were invalid enforcement assessments and that [Blisswood] denied [Genesis's] statutory rights ...

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