Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT John Wood.
ATTORNEYS FOR APPELLEE John E. Codrea, David B. Bokor,
Matthew P. Curry, Edward M. Kochalski, Matthew J. Richardson,
Justin M. Ritch, Manley, Deas & Kochalski, L.L.C.
Morgan Chase Bank, N.A. Maria A. Citeroni Stephen D. Williger
Nicole K. Wilson Thompson & Hine, L.L.P. Laura Hauser,
Nelson M. Reid, Anne Marie Sferra Bricker & Eckler,
BEFORE: E.T. Gallagher, P.J., Laster Mays, J., and Jones, J.
JOURNAL ENTRY AND OPINION
T. GALLAGHER, PRESIDING JUDGE.
Defendant-appellant, Lynda Hicks, appeals the denial of her
request for damages sustained by her property as a result of
a judgment in foreclosure that was subsequently vacated. She
claims the following sole assignment of error:
Where a rental is wrongfully taken in foreclosure for a
period of years by a party with no interest, and the Court of
Appeals orders return of the property to the rightful owner
and for the trial court to conduct proceedings consistent
with the appellate ruling, it was an abuse of discretion for
the trial court, who wrongly ordered the foreclosure, to
refuse to consider the motion for damages inflicted by the
party in error upon the innocent party.
We find merit to the appeal and reverse the trial court's
Facts and Procedural History
In 2011, plaintiff-appellee, Federal National Mortgage
Association ("Fannie Mae"), filed a complaint in
foreclosure against Hicks seeking foreclosure on a two-family
home that Hicks owned as a rental property. Both parties
filed motions for summary judgment. Fannie Mae conceded in
its motion that the note on which its foreclosure claim was
predicated was lost, but argued it was nevertheless entitled
to foreclosure on Hicks's property because it was the
assignee of the mortgage on the property. Hicks argued that
Fannie Mae was not legally entitled to foreclosure without
the missing note.
The trial court granted Fannie Mae's motion, denied
Hicks's motion, and entered judgment in foreclosure in
favor of Fannie Mae. On appeal, we concluded that the
assignment of the mortgage to Fannie Mae, by itself, was
insufficient to sustain an action in foreclosure and reversed
the trial court's judgment. Fannie Mae v. Hicks,
8th Dist. Cuyahoga No. 102079, 2015-Ohio-1955
("Hicks I "). However, while the
appeal was pending, Hicks's property was sold in a
sheriffs sale to Fannie Mae for a $110, 000 credit bid,
representing the amount of the debt owed on the property.
Hicks did not request a stay of the confirmation of sale, but
moved for a stay of distribution of the sale proceeds pending
our decision in her appeal. The trial court denied her
motion. One week later, Fannie Mae was issued a deed to the
property, which was recorded in June 2015.
Following release of this court's decision in Hicks
I, Hicks filed a motion seeking restitution from Fannie
Mae in the amount of $110, 000, the foreclosure price of the
property. Fannie Mae opposed the motion, asking the court to
instead vacate the confirmation of sale pursuant to Civ.R.
60(B) and return the property to Hicks. The trial court
denied Fannie Mae's motion to vacate the confirmation of
sale and ordered Fannie Mae to pay Hicks $110, 000 in
restitution. This time Fannie Mae appealed the trial
In the second appeal, we determined that the trial court
erred by not vacating the foreclosure sale and by ordering
Fannie Mae to pay Hicks $110, 000 in restitution. Fannie
Mae v. Hicks, 8th Dist. Cuyahoga No. 103804,
2016-Ohio-8484, ¶ 19 ("Hicks II
"). Following release of this court's
decision but before the file was returned to the trial court,
Hicks filed a motion styled "Motion for Conference to
Determine the Effect of Setting Aside an Order of Sale,
" seeking to recover damages sustained while Fannie Mae
had possession of her property. Hicks alleged that Fannie Mae
failed to secure, maintain, and winterize the home, and that
the property "wasted significantly from its pre-sale
condition." (Motion for Conference to Determine the
Effect of Setting Aside an Order of Sale at 2.) Hicks
alleged, among other things, that two water heaters and a
furnace were broken, tenants left the property, and a
squatter was now inhabiting one of the units. Hicks also
alleged that ...