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Tax Ease Ohio LLC v. Miller

Court of Appeals of Ohio, Fifth District, Tuscarawas

August 23, 2019

TAX EASE OHIO LLC, Plaintiff-Appellee
v.
RONNIE L. MILLER, et al., Defendants-Appellants

          Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2018 CF 02 0194

          For Plaintiff-Appellee AUSTIN BARNES, III

          For Defendants-Appellants DANIEL A. FRIEDLANDER Weltman, Weinberg & Reis Co., LPA

          JUDGES Hon. W. Scott Gwin, P.J Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.

          OPINION

          HOFFMAN, J.

         {¶1} Defendant-appellant The Farmers National Bank of Canfield appeals the December 19, 2018 Judgment Entry entered by the Tuscarawas County Court of Common Pleas, which denied its Motion for Leave to File Amended Answer and Complaint. Plaintiff-appellee is Tax Ease Ohio LLC.[1]

         STATEMENT OF THE CASE AND FACTS

         {¶2} On February 28, 2018, Tax Ease Ohio LLC ("Tax Ease") filed a complaint in the Tuscarawas County Court of Common Pleas, naming Ronnie L. and Joyce C. Miller ("the Millers"), The Farmers National Bank of Canfield as successor by merger to First National Bank ("Farmers"), Tuscarawas County Treasurer, and the United States Department of the Treasury, Internal Revenue Service, as defendants. Tax Ease sought to foreclose on a tax certificate relating to real property at 9334 Strasburg Bolivar Road, Strasburg, Ohio ("the Property"), which was owned by the Millers. Although the Millers' loan with Farmers was current at the time of the filing of the complaint, Farmers filed a protective answer, asserting it held the first lien after the tax certificate and real estate taxes, to be paid from the proceeds of a sale, in accordance with its priority.

         {¶3} Tax Ease filed a motion for default judgment against the Millers on April 27, 2018. Via Judgment Entry and Decree of Foreclosure filed May 10, 2018, the trial court granted default against the Millers. With respect to Farmers and the other lien claimants, the trial court stated:

4. The Court finds that Defendants the United States of America Department of the Treasury Internal Revenue Service and The Farmers National Bank of Canfield successor by merger to First National Bank, claim some right, title, interest or lien upon the premises described, as set forth in their Answers filed herein, but that any right, title, interest, claim or liens said Defendants may have are inferior and subsequent to the lien of [Tax Ease]. The Court makes no finding at this time as to the right, title, interest or lien of said Defendants as set forth in its pleadings, except to note that such claim, right, title, interest or lien of said Defendants are hereby ordered transferred to the proceeds derived from the sale of said premises, after the payment of the costs of the within action, taxes due and payable, and the amount found due [Tax Ease], and the same is hereby ordered continued until further order. May 10, 2018 Judgment Entry and Decree of Foreclosure.

         {¶4} On December 6, 2018, Farmers filed a Motion for Leave to File Amended Answer and Complaint, seeking to file an amended answer and cross-claim to affirmatively seek a money judgment on its note and foreclose on its mortgage because the Millers were in default. Farmers noted the trial court had entered judgment in favor of Tax Ease. Farmers explained the judgment entry did not make a finding relative to Farmer's mortgage, but transferred it to the proceeds of the sale of the Property. Tax Ease has not taken action to cause the Property to be scheduled for sale.

         {¶5} Via Judgment Entry filed December 19, 2018, the trial court denied Farmers' motion. The trial court found the motion was not timely filed. The trial court further found final judgment was rendered in the case on May 10, 2018.

         {¶6} It is from this judgment entry Farmers appeals, raising the following assignments of error:

I. A JUDGMENT ENTRY AND DECREE OF FORECLOSURE IS NOT A FINAL APPEALABLE ORDER AS TO ISSUES THAT ARE SPECIFICALLY RESERVED FOR FURTHER ...

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