[Cite as In re Foreclosure of Liens for Delinquent Taxes v. Parcels of Land Encumbered with Delinquent Tax Liens,

.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF THE : JUDGES: FORECLOSURE OF LIENS FOR DELINQUENT TAXES : : Hon. Patricia A. Delaney, P. J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Julie A. Edwards, V.J. -vs- : : Case No. 2012CA0001 PARCELS OF LAND ENCUMBERED : WITH DELINQUENT TAX LIENS, ET AL. : : Defendants-Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Case No. 11 CI 0249

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: March 29, 2013

APPEARANCES:

For Appellant Alan Donaker: For Appellee Vanderbilt Mortgage and Finance Co.: Shawn P. Lindsay Eric T. Deighton Connolly, Hillyer, Lindsay & Ong, Inc. Carlisle, McNellie, Rini, Kramer & Ulrich 201 N. Main St., P.O. Box 272 24755 Chagrin Blvd. Suite 200 Uhrichsville, OH 44683 Cleveland, OH 44112 For Treasurer of Coshocton County: Troy and Brandi Wagner James R. Skelton, Special Prosecutor 19601 Township Road 383 309 Main Street Walhounding, OH 43843 Coshocton, OH 43812 Wise, J.

{¶1} Appellant Alan Donaker appeals a judgment of the Coshocton County

Common Pleas Court vacating a Sheriff’s sale. Appellee is Vanderbilt Mortgage and

Finance, Inc.

STATEMENT OF FACTS AND CASE

{¶2} On April 19, 2011, the Coshocton County Treasurer filed the instant

foreclosure action for unpaid property taxes on a parcel of real estate. The property in

question was owned by Troy and Brandi Wagner. Appellee was served with the

complaint because they held a mortgage on the real property and the mobile home

located on the property. Default judgment was granted to the county on July 15, 2011.

However, on August 25, 2011, the court allowed appellee to intervene and file an

answer and a cross-claim seeking judgment against the Wagners in the amount of

$70,475.35.

{¶3} A sale of the property was conducted by the Coshocton County Sheriff

on October 21, 2011. The highest bidder was James M. Matchett, who offered a bid

of $15,100.00. Matchett designated that the property be deeded to appellant. At a

sale held later the same day, appellee successfully purchased the mobile home.

{¶4} The Coshocton County Treasurer submitted an entry for confirmation of

the sale to the trial court. On November 2, 2011, appellee filed a motion to stay

confirmation of the sale and a notice of redemption. Appellee deposited $6,000.00

with the Clerk of Courts to pay off the county tax bill and satisfy the county’s interest in

the property. {¶5} The trial court allowed appellant to intervene in the action on November

23, 2011. Following oral argument, the trial court accepted appellee’s notice of

redemption on December 5, 2011, and vacated the sheriff’s sale. Appellant assigns a

single error on appeal:

{¶6} “THE TRIAL COURT’S DECISION GRANTING THE NOTICE OF

REDEMPTION FILED BY VANDERBILT MORTGAGE AND FINANCE, INC. WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRA TO

EXISTING LAW.”

{¶7} The sole issue before this Court is whether appellee had the right to

redeem the property prior to the confirmation of the sheriff’s sale pursuant to R.C.

5721.25, which provides in pertinent part:

{¶8} “After a foreclosure proceeding has been instituted under Chapter 323.

or this chapter of the Revised Code with respect to delinquent land, but before the

filing of an entry of confirmation of sale pursuant to the proceeding or before the

expiration of the alternative redemption period as may apply under section 323.78 of

the Revised Code, any person entitled to redeem the land may do so by tendering to

the county treasurer an amount sufficient, as determined by the court, to pay the

taxes, assessments, penalties, interest, and charges then due and unpaid, and the

costs incurred in any proceeding instituted against such land under Chapter 323. or

this chapter of the Revised Code, and by demonstrating that the property is in

compliance with all applicable zoning regulations, land use restrictions, and building,

health, and safety codes.” {¶9} The statute does not define the phrase “any person entitled to redeem

the land.” In the instant case, the trial court found that appellee was a person entitled

to redeem the land. We disagree.

{¶10} In Wilke v. Secretary of Housing and Urban Development, 1st Dist. No.

C-840077,

(December 26, 1984), Gateway, a third party who was not

the owner of the property in question, attempted to redeem the property following a

sheriff’s sale for delinquent taxes. The record was devoid of any indication of the

nature or extent of Gateway’s interest in the land. The court held that the clear

meaning and intent of the second paragraph of R.C. 5721.25 is that only the former

owner has the right of redemption, and this is a nontransferable personal privilege.

The court noted that any other conclusion would undermine the integrity of sheriff’s

sales for delinquent taxes.

{¶11} In the instant case, appellee had a valid lien on the property, and unlike

Gateway in the Wilke case, appellee was not a stranger to the title. However, we find

that the intent of the statute is to provide the owner with an opportunity to redeem the

property if they so desire. Appellee was notified of the sale of the land and in fact

purchased the mobile home located on the property. Appellee had an opportunity to

protect its interest in the land by bidding at the sale.

{¶12} Appellee argues that pursuant to the terms of the mortgage and R.C.

5301.233, they have the right to advance taxes to the property owner. However, that

is not what appellee did in the instant case. Rather than advancing taxes on behalf of

the property owners, appellee attempted to exercise the right to redeem the property

for taxes owed by the property owner, not by appellee. Based on representations made to the trial court in oral argument, it appears that the property owner had no

interest in redeeming the property and intended to allow the property to be sold at the

sheriff’s sale. To allow appellee to sit on their hands and fail to protect their interests

at the sheriff’s sale and then redeem the property for the lower amount of the unpaid

property taxes, in the instant case $825.84 on the land, undermines the integrity of

sheriff’s sales for tax delinquencies.

{¶13} The assignment of error is sustained. The judgment of the Coshocton

County Common Pleas Court is reversed. This cause is remanded to that court with

instructions to confirm the Sheriff’s sale. Costs to appellee.

By: Wise, J.

Delaney, P.J. and

Edwards, V.J. concur.

HON. JOHN W. WISE

HON. PATRICIA A. DELANEY

HON. JULIE A. EDWARDS

rad/JWW IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

: IN THE MATTER OF THE : FORECLOSURE OF LIENS FOR : DELINQUENT TAXES : JUDGMENT ENTRY : Plaintiff - Appellee : : -vs- : Case No. 2012CA0001 : PARCELS OF LAND ENCUMBERED : WITH DELINQUENT TAX LIENS, ET : AL. :

Defendants-Appellants

For the reasons stated in our accompanying Opinion on file, the judgment of the

Coshocton County Court of Common Pleas is reversed. This cause is remanded to

that court with instructions to confirm the Sheriff’s sale. Costs assessed to Appellant.

HON. JOHN W. WISE

HON. PATRICIA A. DELANEY

HON. JULIE A. EDWARDS