Zurmehly v. Burnett

2020 Ohio 4181

• Court: Ohio Court of Appeals
• Decided: August 24, 2020
• Docket: CA2019-11-088
• Status: Published

Opinion

[Cite as Zurmehly v. Burnett, 2020-Ohio-4181.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

JEANNIE M. ZURMEHLY, TREASURER : OF CLERMONT COUNTY, OHIO, : CASE NO. CA2019-11-088 Appellee, : OPINION 8/24/2020 - vs - :

: RODNEY P. BURNETT, et al., : Appellants.

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2019CVE0030

D. Vincent Faris, Clermont County Prosecuting Attorney, Jason A. Fountain, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee

Alan D. Brown, Pickaway Correctional Institution, #A744063, P.O. Box 209, Orient, Ohio, 43146, pro se

RINGLAND, J.

{¶1} Appellant, Alan Brown, appeals the decision of the Clermont County Court of

Common Pleas confirming the sale of real property following tax lien foreclosure

proceedings. For the reasons detailed below, we affirm.

{¶2} On January 9, 2019, the Clermont County Treasurer initiated foreclosure

proceedings against record owners, Rodney Burnett and Linda Hutchinson, for delinquent Clermont CA2019-11-088

taxes owned on their property located at 6564 State Route 133, Goshen, Ohio. The

complaint stated that Brown may claim to have a lien interest in the property by virtue of a

certificate of judgment in the amount of $8,630 and recorded as 2018 JUD 01926. Brown

was served with the complaint. Brown subsequently answered the complaint asserting his

interest while indicating that he did "not wish to prevent the property from being sold. I only

wish to recover the moneys owed to me by Rodney P. Burnett." The record owners, Burnett

and Hutchinson, did not respond to the complaint or otherwise participate in the foreclosure

action.

{¶3} The trial court granted default judgment against Burnett and Hutchinson and

the property was thereafter sold to a third-party purchaser on October 8, 2019 for the

minimum bid set by the trial court. The trial court then issued an entry confirming sale,

distributing the proceeds of the sale, affirming the transfer of the subject property to the

purchaser, and releasing and canceling all liens remaining on the subject property. Brown

now appeals, raising a single assignment of error for review:

{¶4} WHETHER APPELLANT ALAN BROWN PERFECTED AN ENFORCEABLE

LIEN UNDER OHIO LAW THAT ATTACHED TO DELINQUENT TAX PROPERTY UNDER

FORECLOSURE.

{¶5} In his sole assignment of error, Brown questions whether the Treasurer had

perfected an enforceable lien under Ohio law. Brown also asserts, however, that the trial

court erred "when it failed to notify [the] Sheriff that said [a]ppellant had [a] lien on the

property" and that the Treasurer should have recorded a separate instrument to perfect its

lien. Taking Brown's argument as a whole, Brown alleges the trial court erred by confirming

a purportedly unlawful sale of the property. Following review, we find the foreclosure

proceedings and sale of the subject property were conducted in accordance with the law.

Brown's argument is therefore without merit.

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{¶6} R.C. 5721.10 provides the state a first and best lien on all lands described in

the delinquent land list for the amount of taxes charged thereon and allows the state to

institute foreclosure proceedings on such property when taxes have not been paid for one

year after having been certified as delinquent. Suggs v. McCool, 12th Dist. Preble No.

CA93-05-009, 1994 Ohio App. LEXIS 717, *9 (Feb. 28, 1994).

{¶7} Pursuant to R.C. 5721.18(A) "foreclosure proceedings shall be instituted and

prosecuted in the same manner as is provided by law for the foreclosure of mortgages on

land * * *." Nix v. Richter, 12th Dist. Butler No. CA2017-04-043, 2017-Ohio-8431, ¶ 12.

R.C. 5721.18 further details the procedures to be followed in a proceeding to foreclose on

a state lien.

{¶8} The Treasurer's complaint set forth the tax delinquency due and owing on the

subject property. The complaint requested that the property be sold to satisfy the

delinquency in accordance with R.C 5721.18(A). The record owners of the property and all

interested parties, including Brown, were included as necessary parties in the action and

properly served. Brown responded by asserting his interest in the property by nature of his

certificate of judgment lien against Burnett, which was listed as 2018 JUD 01926. The

Treasurer does not dispute that Brown had a valid and existing lien at the time of the filing

of the complaint.

{¶9} After Burnett and Hutchinson failed to respond, the trial court granted default

judgment in favor of the Treasurer. Thereafter, in accordance with R.C. 5721.19(A), the

trial court entered a finding with respect to each parcel of the amount of the taxes,

assessments, charges, penalties, and interest due and unpaid. The trial court then ordered

the property be sold to satisfy the amounts due and found that Brown was entitled to be

paid on his lien out of any remaining proceeds in order of his priority.

{¶10} The trial court set the minimum bid in accordance with R.C. 5721.19(A)(2) and

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ordered the subject parcels to be sold together for a minimum bid of $12,817. With the

minimum bid established by the trial court, the property was advertised for sale and was

published in the Clermont Sun once per week for three consecutive weeks in accordance

with R.C. 5721.19(B).

{¶11} The property was first offered for sale on September 24, 2019 but received

no bids. The property was offered again on October 8, 2019 at the same time and location.

A single bid was received at the minimum amount of $12,817.

{¶12} Proceeds of a sale under R.C. 5721.18(A) are applied in accordance with R.C.

5721.19 (D) and (G). Pursuant to R.C. 5721.19(D), the proceeds are applied, first to the

costs incurred in the proceeding, second to a percentage amount of the delinquent tax and

assessment collection fund, and third to the taxes, assessments, charges, penalties, and

interest due on the property.

{¶13} After payment of the above, excess funds are generally payable to responding

lienholders in order of priority. However, there is no additional distribution to lienholders

when the property is sold only for the Treasurer's estimate of taxes and costs due. In the

event that a property is sold pursuant to R.C. 5721.19(A)(2) for the amount of the

Treasurer's estimate and the "estimate exceeds the amount of taxes, assessments,

interest, penalties, and costs actually payable," the successful bidder shall be refunded the

"difference between the estimate and the amount actually payable." R.C. 5721.19(G).

{¶14} When the trial court confirmed the sale, title to the property "shall be

incontestable in the purchaser and shall be free and clear of all liens and encumbrances,"

except for certain federal tax liens, easements, and covenants of record running with the

land. R.C. 5721.19(F)(2). In this case, Brown's certificate of judgment falls within the

category of "liens and encumbrances" released from the property.

{¶15} Despite Brown's argument to the contrary, the record is clear that the

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proceedings in the foreclosure of this tax lien were done in accordance with the

requirements and procedures set forth in the Ohio Revised Code. Because the foreclosure

and sale of the property were conducted in all respects in accordance of the law, we find

Brown's sole assignment of error is without merit and is hereby overruled.

{¶16} Judgment affirmed.

HENDRICKSON, P.J., and S. POWELL, J., concur.

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