Court of Appeals of Ohio, Eleventh District, Ashtabula
TRUMBULL TOWNSHIP BOARD OF TRUSTEES, ASSIGNEE OF GEAUGA SAVINGS BANK, Plaintiff-Appellant,
LAWRENCE RICKARD, et al., Defendant-Appellee.
Appeal from the Ashtabula County Case No. 2011 CV 1081 Court
of Common Pleas
J. Rosenthal, and Catherine R. Colgan, Assistant Prosecutor,
Ashtabula County Courthouse, (For Plaintiff-Appellant).
L. Walter and Grant J. Keating, Dworken & Bernstein Co.,
L.P.A., (For Defendant-Appellee).
R. WRIGHT, P.J.
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.
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:
"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.
"In 2014, GSB filed a motion for summary judgment
against Rickard and the Seymours seeking foreclosure and
money damages based on Rickard's default.
"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.
"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."
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.
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.
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.
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.
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.
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.
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:
"[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."
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