JPMorgan Chase Bank, NA v. Pellin

2012 Ohio 1151

• Court: Ohio Court of Appeals
• Decided: March 16, 2012
• Docket: 10 MA 179
• Status: Published

Opinion

[Cite as JPMorgan Chase Bank, NA v. Pellin, 2012-Ohio-1151.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

JPMORGAN CHASE BANK, N.A. ) CASE NO. 10 MA 179 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) VANESSA PELLIN, et al. ) ) DEFENDANTS-APPELLANTS )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 06 CV 300

JUDGMENT: Reversed.

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: March 16, 2012 [Cite as JPMorgan Chase Bank, NA v. Pellin, 2012-Ohio-1151.] APPEARANCES:

For J.P.Morgan Chase Bank, N.A. Atty. Thomas R. Merry Atty. James H. Cannon Barren & Merry 110 Polaris Parkway, Suite 302 Westerville, Ohio 43082

For American Tax Funding: Atty. John N. Zomoida, Jr. Anthony & Zomoida, LLC Town One Square 40 S. Main Street Poland, Ohio 44514

For State of Ohio, Dept. of Taxation: Atty. Michael DeWine Attorney General of Ohio Atty. Amy Kaufman Assistant Ohio Attorney General Collections Enforcement Section 150 E. Gay Street, 21st Floor Cleveland, Ohio 43215

For Vanessa Pellin, Pellin Emergency Serv., Atty. Howard E. Mentzer Inc. and R and V Leasing Corp.: Mentzer and Mygrant, Ltd 1 Cascade Plaza, Suite 1145 Akron, Ohio 44308

For Richard M. Pellin, Sr.: Atty. Michele L. McBride Atty. Leonard D. Schiavone Friedman & Rummell Co., L.P.A. City Centre One, Suite 300 100 E. Federal Street Youngstown, Ohio 44503

For United States of America: Atty. Kent W. Penhallurick 400 United States Courthouse 801 W. Superior Avenue Cleveland, Ohio 44113

For Receiver: Atty. Jason Butterworth Atty. Ronald N. Towne Brennan, Manna & Diamond, LLC 75 E. Market Street Akron, Ohio 44308 [Cite as JPMorgan Chase Bank, NA v. Pellin, 2012-Ohio-1151.] For Med Corp., Inc.: Atty. J. Gerald Ingram 7330 Market Street Youngstown, Ohio 44512

Atty. J. Jeffery Lowenstein 745 Medcorp. Drive Toledo, Ohio 43608

For Vanessa Pellin: Vanessa Pellin, Pro se 10808 Akron-Canfield Road Ellsworth, Ohio 44416 [Cite as JPMorgan Chase Bank, NA v. Pellin, 2012-Ohio-1151.] WAITE, P.J.

{¶1} Appellant American Tax Funding LLC (“ATF”) appeals the judgment of

the Mahoning County Court of Common Pleas overruling a motion to intervene in a

foreclosure action. In the underlying case, JPMorgan Chase Bank, NA (“JPM

Chase”) commenced a foreclosure action on January 25, 2006, against property

located at 10808 Akron-Canfield Road in Mahoning County. ATF held delinquent tax

certificates on the property that it had purchased from the Mahoning County

Treasurer pursuant to R.C. 5721.33. JPM Chase did not name ATF as a party in the

foreclosure action. ATF filed a motion to intervene on April 19, 2006. The trial court

did not rule on the motion. On July 28, 2010, ATF refiled the motion. On September

15, 2010, a magistrate overruled the motion to intervene. On September 24, 2010,

AFT filed a motion to set aside the magistrate’s order. On November 9, 2010, the

trial court overruled the motion to set aside the magistrate’s order, and this appeal

followed. The trial court should have allowed ATF to intervene based on its interest

in the property arising from the delinquent tax certificates. The judgment of the trial

court is reversed.

{¶2} No Appellee’s brief has been filed in this appeal. Under App.R. 18(C),

the failure of Appellee to file a brief allows us to “accept the appellant's statement of

the facts and issues as correct and reverse the judgment if appellant's brief

reasonably appears to sustain such action.” -2-

ASSIGNMENT OF ERROR

{¶3} The trial court erred by denying American Tax

Funding, LLC’s Motion to Intervene.

{¶4} We note at the outset that a denial of a motion to intervene is a final

appealable order. Likover v. Cleveland, 60 Ohio App.2d 154, 155, 396 N.E.2d 491

(1978); Fairview Gen. Hosp. v. Fletcher, 69 Ohio App.3d 827, 591 N.E.2d 1312

(1990).

{¶5} Civ.R. 24 governs the circumstances and procedure for a person to

intervene in a civil action. A party may intervene as a matter of right if it has “an

interest relating to the property or transaction that is the subject of the action”. Civ.R.

24(A)(2). The rule is to be liberally construed in favor of intervention. State ex rel.

Watkins v. Eighth Dist. Court of Appeals, 82 Ohio St.3d 532, 534, 696 N.E.2d 1079

(1998). Requests to intervene are reviewed under Civ.R. 24 for abuse of discretion.

State ex rel. Cardinal Joint Fire Dist. v. Canfield Twp., 7th Dist. No. 03 MA 67, 2004-

Ohio-5526, ¶29. In order to find an abuse of discretion, the appellate court must

determine that the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶6} A lienholder generally has a right to intervene in a foreclosure action.

Rokakis v. Martin, 180 Ohio App.3d 696, 2009-Ohio-369, 906 N.E.2d 1200 (8th

Dist.); McKesson Medical-Surgical Minnesota, Inc. v. Medico Med. Equip. & Supplies,

8th Dist. No. 84912, 2005-Ohio-2325; Sharp v. Kuhn, 12th Dist. No. 78 CA 10, 1978 -3-

WL 216347 (Oct. 4, 1978). In this particular case, Appellant became a lienholder by

purchasing delinquent tax certificates. A county treasurer is permitted to sell

delinquent tax certificates under the rules set forth in R.C. 5721.30 to 5721.43.

Almost anyone, except for the landowner owing the delinquent tax, may purchase the

tax certificates. R.C. 5721.32(J); 5721.33(E)(3). The sale of the tax certificate also

transfers a tax lien: “the superior lien of the state and its taxing districts for those

taxes, assessments, penalties, and interest is conveyed intact to the certificate

holder.” 87 Ohio Jurisprudence 3d, Taxation, Section 700, at 172 (2000); see also

R.C 5721.35(A). Thus, an owner of delinquent tax certificates, as the superior

lienholder, has a right to intervene in a foreclosure action. Because Appellant could

intervene as a matter of right in the foreclosure action, it was an abuse of discretion

to overrule the motion to intervene. There are no arguments on appeal opposing

Appellant’s assignment of error and the record establishes the validity of the

argument. Therefore, the assignment of error is sustained and the judgment of the

trial court is reversed.

Donofrio, J., concurs.

Vukovich, J., concurs.