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Trumbull Township Board of Trustees v. Rickard

Court of Appeals of Ohio, Eleventh District, Ashtabula

June 24, 2019

TRUMBULL TOWNSHIP BOARD OF TRUSTEES, ASSIGNEE OF GEAUGA SAVINGS BANK, Plaintiff-Appellant,
v.
LAWRENCE RICKARD, et al., Defendant-Appellee.

          Civil Appeal from the Ashtabula County Case No. 2011 CV 1081 Court of Common Pleas

          Sandra J. Rosenthal, and Catherine R. Colgan, Assistant Prosecutor, Ashtabula County Courthouse, (For Plaintiff-Appellant).

          Erik L. Walter and Grant J. Keating, Dworken & Bernstein Co., L.P.A., (For Defendant-Appellee).

          OPINION

          THOMAS R. WRIGHT, P.J.

         {¶1} Appellant, the Board of Trumbull Township Trustees (the Township), appeals the trial court's July 21, 2017 decisions approving Lawrence Rickard's redemption of the subject property and vacating the September 9, 2016 judgment entry of foreclosure and dismissing the case. We affirm.

         {¶2} This is the third appeal in this case. The first appeal arose via the Township's motion to intervene and ended with a finding that we lacked jurisdiction due to a lack of a final appealable order. Geauga Savs. Bank v. Rickard, 11th Dist. Ashtabula No. 2012-A-0052, 2013-Ohio-3863, ¶11. In "Appeal II," decided on July 24, 2017, we summarized the procedural history, Trumbull Twp. Bd. of Trustees v. Rickard, 11th Dist. Ashtabula No. 2016-A-0061, 2017-Ohio-6945, ¶2-5:

         {¶3} "In November 2011, Geauga Savings Bank (GSB) filed a complaint for foreclosure against appellee, Lawrence Rickard, pursuant to his assumption of a loan agreement, based on Rickard's nonpayment and against Bryce R.T. Seymour and Christine Seymour, whose mortgage Rickard assumed. The Township was not a party to the suit.

         {¶4} "In 2014, GSB filed a motion for summary judgment against Rickard and the Seymours seeking foreclosure and money damages based on Rickard's default.

         {¶5} "After the parties' competing motions and briefs were filed regarding summary judgment, but before the trial court issued its decision, the Township was substituted as the plaintiff in place of GSB on January 5, 2016 pursuant to GSB's assignment of Rickard's assumption agreement, mortgage, and note.

         {¶6} "On July 29, 2016, the trial court granted the Township summary judgment as to foreclosure and reformation of the legal description and ordered the Township to produce a judgment entry of foreclosure within 30 days. However, it denied summary judgment on GSB's request for attorney fees as well as its request for a hearing on the issue. The trial court later issued its judgment entry of foreclosure on September 9, 2016."

         {¶7} We reversed and remanded finding that the Township, as GSB's assignee, "stand[s] in the shoes of the prior plaintiff and acquire[s] the prior parties' right to recover attorney fees incurred in enforcing the note against Rickard." Id. at ¶18. Accordingly, the trial court erred in failing to hold an evidentiary hearing on the attorney fee issue. Id.

         {¶8} Notwithstanding the pending appeal in Appeal II, on March 29, 2017, Rickard filed a motion to vacate the July 29, 2016 decision granting the Township summary judgment and the September 9, 2016 decree of foreclosure and for approval of redemption of the subject property. This motion also sought an order distributing the funds Rickard deposited with the clerk of courts to satisfy his outstanding obligations regarding the property.

         {¶9} Rickard then moved this court to stay the appeal in Appeal II due to his pending motion to redeem the property in the trial court. We overruled his motion to stay Appeal II, noting that the appeal was not moot. Neither party had moved to stay the trial court's July 29, 2016 summary judgment decision and September 9, 2016 judgment entry of foreclosure at this time.

         {¶10} On April 7, 2017, the Township filed its opposition to Rickard's motion to vacate and for a redemption order, and for the first time, the Township moved the trial court to stay its foreclosure proceedings. It argued in part that the pendency of Appeal II deprived the trial court of jurisdiction to approve Rickard's redemption and consider the motion to vacate the foreclosure decree.

         {¶11} Rickard opposed the Township's motion to stay the trial court proceedings, alleging irreparable harm based on the continued accrual of interest during the pendency of the appeal, noting that the principal amount owed pursuant to the note was $50, 992.04, but that this amount had increased by approximately $20, 000 during the protracted litigation. And because Rickard had already deposited the outstanding funds with the clerk of courts necessary to satisfy the trial court's September 9, 2016 foreclosure decree, Rickard urged the court to find that he successfully exercised his right to redeem the property.

         {¶12} Following a hearing, the magistrate overruled the Township's motion to stay and granted Rickard's motion for approval of redemption and to vacate the September 9, 2016 judgment, finding that the note was satisfied. The magistrate directed Rickard to prepare a judgment entry outlining the proper disbursement of the funds deposited with the clerk of courts. The Township filed objections.

         {¶13} On July 21, 2017, the trial court granted Rickard's motions to redeem and vacate the September 9, 2016 decree of foreclosure. It overruled the Township's objections and adopted and approved the magistrate's decision, explaining in part:

         {¶14} "[A]bsent a stay of execution, the plaintiff may proceed with a foreclosure sale while an appeal is pending. By the same logic, the defendant should not be prevented from exercising a statutory right to redeem the property. It is not clear whether this Court has the authority to issue an order prohibiting a judgment debtor from exercising the statutory right of redemption. However, continuing to delay the defendant's ability to redeem the property substantially prejudices the defendant, while the plaintiff will surely seek to claim interest on the underlying judgment until the date it is ultimately paid."

         {¶15} The redemption journal entry, ordering the disbursement of funds that Rickard deposited with the clerk of courts, was also issued on July 21, 2017. It orders the clerk to distribute the funds on deposit, orders the judgment and ...


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