[Cite as CitiMortgage, Inc. v. Roznowski,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: CITIMORTGAGE, INC. : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2012-CA-93 JAMES A. ROZNOWSKI, ET AL : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2008CV00894

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: October 22, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant ERIN M. LAURITO PETER D. TRASKA 7550 Paragon Road Box 609306 Dayton, OH 45459 Cleveland, OH 44109

DAVID A. WALLACE RYAN HARRELL KAREN A. CADIEUX Chamberlain Law Firm 280 North High Street, Ste. 1300 2765 Lancashire Road Columbus, OH 43215 Cleveland Heights, OH 44106 [Cite as CitiMortgage, Inc. v. Roznowski,

.]

Gwin, P.J.

{¶1} Defendants-appellants James and Steffanie Roznowski appeal a judgment

of the Court of Common Pleas of Stark County, Ohio, entered in favor of plaintiff-

appellees CitiMortgage, Inc., the successor by merger to ABN AMRO Mortgage Group,

Inc. For the reasons that follow, we find we have no jurisdiction over the matter.

{¶2} This case came before us on an earlier appeal, in which we determined

there was no final appealable order. CitiMortgage Inc v. Roznowski, 5th Dist. No.

2011CA00124,

. We found the earlier judgment did not set forth the dollar

amount of the balance due on the mortgage and did not reference any documents in the

record that did.

{¶3} In response, the trial court entered a judgment on February 1, 2012. The

court set forth the principal sum due plus the interest. In addition, it awarded “costs of

this action, those sums advanced by plaintiff for costs of evidence of title required to

bring this action, for payment of taxes, insurance premiums and expenses incurred for

property inspections, appraisal, preservation and maintenance.” The court did not enter

a dollar amount for any of those damages.

{¶4} Before addressing the merits of any appeal, we must first determine

whether we have jurisdiction over the matter. If the parties to the appeal do not raise

this jurisdictional issue, we may raise it sua sponte. Chef Italiano Corp. v. Kent State

University,

,

, (1989), syllabus by the court. With few

exceptions, the order under review must be a final appealable order. If an order is not

final and appealable, then we have no jurisdiction to review the matter and must dismiss

it. See General Accident Insurance Co. v. Insurance Co. of North America, 44 Ohio Stark County, Case No. 2012-CA-93 3

St.3d 17, 20,

, (1989). An appellate court has jurisdiction to review and

affirm, modify, or reverse judgments or final orders of the trial courts within its district.

Ohio Constitution, Article IV, Section 3(B)(2) ; R.C. § 2505.02 .

{¶5} Ohio law recognizes an absolute right of redemption that is dual in nature,

arising both from equity and statute. Hausman v. Dayton,

,

1995–Ohio–277,

. In Hausman, the Ohio Supreme Court explained

that the mortgagor's equitable right of redemption is cut off by a decree of foreclosure.

Generally, a common pleas court grants the mortgagor a three-day grace period to

exercise the ‘equity of redemption,’ which consists of paying the debt, interest and court

costs, to prevent the sale of the property.

After the decree of foreclosure has been

entered, a mortgagor retains a statutory right of redemption under R.C. 2329.33 that

may be exercised at any time prior to the confirmation of sale by depositing the “amount

of the judgment” with all costs in the common pleas court.

{¶6} To redeem the property under R.C. 2329.33, “the mortgagor-debtor must

deposit the amount of the judgment with all costs specified.” Women's Federal Savings

Bank v. Pappadakes

,

(1988), paragraph one of the

syllabus. The funds deposited must be available for use and division immediately.

.

{¶7} In Huntington National Bank v. Shanker, Cuyahoga App. No. 72707,

, (May 21, 1998) , the court stated “It would be beyond reason to hold a trial

court or magistrate to a standard that insists they state a definite sum of redemption,”

and that “[a]s long as the redemption value of a foreclosed property is ascertainable

through normal diligence, the value, as stated by a finder of fact, will be upheld.” Stark County, Case No. 2012-CA-93 4

Likewise, courts have held it could be impractical to require the mortgagee to state with

specificity the total amount due for additional charges because some of the damages

would be accruing continuously through the date of the sheriff's sale. First Horizon

Home Loans v. Sims,12th Dist. No. CA2009–08–117,

¶ 25.

{¶8} In Roznowski I, we said:

“Generally, an order that determines liability but not damages is not a final,

appealable order. Walburn v. Dunlap,

, 2009–Ohio–

1221,

. There is an exception to this general rule,

however, ‘where the computation of damages is mechanical and unlikely

to produce a second appeal because only a ministerial task similar to

assessing costs remains.’ State ex rel. White v. Cuyahoga Metro.Housing

Auth. (1997),

,

. Thus, if ‘only a

ministerial task similar to executing a judgment or assessing costs

remains' and there is a low possibility of disputes concerning the parties'

claims, the order can be appealed without waiting for performance of that

ministerial task.

Roznowski I at ¶25, citations sic.

{¶9} The valuation of the damages “for costs of evidence of title required to

bring this action, for payment of taxes, insurance premiums” may be mechanical and

ministerial, and ascertainable by normal diligence, and thus the court was not required

to list them in the judgment entry of foreclosure. However, we find the computation of

the dollar amount for “expenses incurred in property inspections, appraisal, preservation

and maintenance” are not easily ascertainable. This matter has been pending for nearly Stark County, Case No. 2012-CA-93 5

five years, and the accrued expenses appellee claims could represent a substantial

sum. In order to exercise their right of redemption, appellants must know the amount of

money they must produce. Nothing in the record gives appellants or this court notice of

the amount.

{¶10} Appellants may dispute the necessity, frequency, and/or reasonableness of

the expenses, and any challenges to these expenses may be likely to produce a second

appeal before the sale. Further, these damages are not accruing continuously until the

sheriff’s sale. The final appraisals will be ordered by the sheriff, and appellee may or

may not be required to expend funds for further inspections or maintenance. If there is

a delay, occasioned, for example, by another appeal, the court can award subsequent

damages.

{¶11} Appellee represented at oral argument all of the above can be challenged

at the confirmation hearing. We do not agree. The proper time to challenge the

existence and the extent of mortgage liens is in the foreclosure action, not upon

confirmation of a judicial sale. National Mortgage Association v. Day,

,

,

. Confirmation involves only a determination of

whether a sale has been conducted in accord with law, such as whether the public

notice requirements were followed and whether the sale price was at least two-thirds of

lands appraised value. Ohio Savings Bank v. Ambrose,

,

(1990). It is for this reason that only damages whose computation are

“mechanical and ministerial” can be addressed at a hearing on confirmation of the

sheriff’s sale. Stark County, Case No. 2012-CA-93 6

{¶12} We find the judgment entry appealed from is not a final appealable order,

and the appeal is dismissed for lack of jurisdiction.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE

WSG:clw 1010 [Cite as CitiMortgage, Inc. v. Roznowski,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

CITIMORTGAGE, INC. : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JAMES A. ROZNOWSKI, ET AL : : : Defendant-Appellant : CASE NO. 2012-CA-93

For the reasons stated in our accompanying Memorandum-Opinion, the appeal is

dismissed for lack jurisdiction. Costs to appellees.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE