Joseph & Joseph & Hanna

Real Estate and Divorce Lawyers, Columbus Ohio

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Recent Cases of Interest to Real Property Lawyers

Real property lawyers may find the following cases notable.

Bosky Group, LLC v. Columbus & Ohio River RR Co., 2017-Ohio-8292

  • A prior owner of the land granted an easement for a Railroad company to have a railroad run through the land, but it required for the railroad company to have two crossings placed on the land. Only one crossing was placed and the land was eventually subdivided.  This suit was filed by Bosky, an owner of a portion of the original land, claiming that without the crossing, their land is landlocked.  The railroad is arguing that they are not requiring to put in the crossing because the easement didn’t run with the land.  The Court found that the easement did run with the land and there was a requirement for a crossing.  The railroad tried to argue that the easement was abandoned or in the alternative that they had obtained the land by adverse possession.  The Court found these two arguments to be unfounded.

Wischt v. Heirs of Mourer, 2017-Ohio-8236

  • The Mourers tried to claim adverse possession of 11 acres of Wischt’s land. The prior owner of Wischt’s land testified that his father had granted the Mourers use of his land to water their cattle and when he took over, he confirmed that he gave his approval of the permission his father gave to the Mourers.  Therefore, the Court found that the Mourers were using the land with permission and could not obtain the land through adverse possession.

Carson v. Duff, 2017-Ohio-8199

  • This case involved the claim of adverse possession of land by a co-tenant. The Court found that the burden was on the appellants to prove their adverse possession claim by proving that “they or their predecessors engaged in ‘overt acts of unequivocal character’ indicating their ownership of the property to the exclusion of appellees.  They failed to prove this burden.

U.S. Bank N.A. v. Stocks, 2017-Ohio-8108

  • Court found that US Bank was entitled to judgment against the Stocks for foreclosure of a mortgage as they supported their motion for summary judgment with evidence showing that the Stocks defaulted and they met all conditions precedent.

Bank of Am. v. Allen, 2017-Ohio-7726

  • Bank of America held a mortgage on the property owned by Allen and Wallace. This mortgage was transferred to Selene and Selene was substituted as the Plaintiff in this case.  Allen tried to argue that the order confirming the sale was invalid because Bank of America was still in the case caption and not Selene.  The Court found that “the names appearing in the caption of the case do not determine who are the parties to the suit.” Allen further contested the confirmation of the judicial sale claiming that it was invalid because the appraised value was less than the value for which the auditor held.  However, if a party is not happy with the appraisal, then they have to object before the sale is held.  This did not happen in this case. The court also found that the value from the county auditor is not a reliable indicator for the real value of the property.  Allen also claimed that the Bank did not comply with all conditions precedent in order to bring the foreclosure action.  However, Allen never brought up this issue in his answer and therefore failed to bring this up as an issue in the case.  Finally, Allen argued that because the purchaser listed a PO Box as their address they did not clearly provide the purchaser information. The Court disagreed because there was also a street address and not merely a PO Box.  Judgment affirmed.

JPMorgan Chase Bank v. Clark, 2017-Ohio-7765

  • Clark states that the trial court’s decision should be overruled because Clark received the Notice of Sale 8 days before the sale instead of 2 weeks as required in the local rule. The Court found that violation of a local rule does not “per se mandate relief from judgment.” Judgment Affirmed.

Farmers State Bank v. Sponaugle, 2017-Ohio-7744

  • In this case, the Court found that the Court’s judgment and decree of foreclosure was not a final appealable order and therefore, they could not order the sale of the property. The Court remanded and told the Court that upon “entry of a final appealable judgment and decree of foreclosure, the trial court may again order the sale of the property.”

Blackstone v. Moore, 2017-Ohio-7751

  • In this case, there was a conflict between a ruling in the 7th District Court of Appeals and the 5th District Court of Appeals and therefore a conflict was certified to the Ohio Supreme Court for determination. Both Courts were presented “with the issue of whether a reference to a reservation of rights in a deed was specific or general pursuant to R.C. 5301.49(A).” The 5th district created a “bright-line rule that looks to whether the reserving deed can be located without checking the indexes.”  The 7th district fell in line with the 4th district and the 8th district and used “four factors to determine whether such referenced was specific or general.”  These factors are as follows: (1) the type of mineral right created, (2) the nature of the encumbrance (an estate, profit, lease, or easement), (3) the original owner of the interest, and (4) whether it referenced the instrument creating the interest.  The Court found that these factors “were statutorily sufficient to put parties on notice of a reservation of rights.”  Certification has been sent to Ohio Supreme Court.

Bayview Loan Serv.,L.L.C. v. Likely, 2017-Ohio-7693

  • In this case, the Likely’s are arguing that the trial court abused their discretion by not providing the Likelys with additional time to provide the trial transcript to the Court with their objections to the Magistrate’s Decision. However, the records show that the Likelys did not make any attempt to obtain the transcript until 28 days after it was originally due.  The appellate court found that there was no abuse of discretion.  The Likelys also argued that the bank could not file their foreclosure action due to the statute of limitations and that the savings statute was improperly applied.  They argue that because the original case was dismissed for lack of standing, that the court does not have subject matter jurisdiction and therefore, the original case was never commenced.  However, this Court found that “a court of common pleas that has subject-matter jurisdiction over an action does not lose that jurisdiction merely because a party to that action lacks standing.”  Therefore, the savings statute was properly invoked in this case.

Bank of New York Mellon v. Bridge, 2017-Ohio-7686

  • Bank of New York Mellon filed a Motion for Summary Judgment. Bridge did not respond.  The Court granted the Motion for Summary Judgment.  Bridge now appeals.  The Court found that because Bridge failed to respond, the Bank met its original burden and the award of summary judgment was appropriate.  Bridge argued on appeal that the Bank lacked standing, did not comply with HUD requirements, and failed to demonstrate a default on the loan.  The Court found that HUD requirements did not apply in this case, standing was appropriate, and that Bridge failed to provide conflicting evidence regarding the amounts owed on the loan.

Steiner v. Piero-Silagy, 2017-Ohio-7669

  • Property was put into Appellant and her mother’s name in order to help Appellant out with a loan. The mother was declared incompetent and the Guardian for the Mother sought equity in the Property. Appellant filed a Quiet Title Action.  Court found in favor of the Appellee.  Appellant appealed.  Appellee argued at trial that by placing Mother’s name on the Deed that the parties each became tenants in common with a ½ ownership interest.  Appellant did not provide evidence showing that the name was only put on the property at the behest of the lender.  Due to the Mother being found incompetent they could not get her testimony as to whether she expected to be listed on the deed.  The Court therefore had to rely on the language of the deed.

First Fin. Bank, N.A. v. Mendenhall, 2017-Ohio-7628

  • Mendenhall’s appealed arguing that the bank did not provide an account history. However, this Court found that “where the mortgagor admits the amount of principal and interest due, the lender or mortgagee is not required to submit an account history to further establish the undisputed fact.”

Thomarios v. Hardy Invest. Assocs., Ltd., 2017-Ohio-7597

  • Property was sold to Thomarios by Hardy Investment Associates and the deed included a restriction on the use of the property for a period of 20 years. Thomarios tried to sell the Property and the sale didn’t go through due to the restrictive covenant.  Thomarios sued to try to invalidate the restrictive covenant.  Lower Court granted summary judgment to Hardy Investment Associates.  The appellate court affirmed the judgment of the lower court finding that the language of the restrictive covenant was not ambiguous, that there was no proof that there was a lack of substantial value or benefit of the restrictive covenant, the restrictive covenant was not against public policy, and the restrictive covenant was not an unlawful restraint of trade.

Bank of New York Mellon v. Slover, 2017-Ohio-7321

  • A foreclosure action was filed by Bank of New York Mellon due to Slover’s nonpayment of the note and mortgage. The action was brought solely to enforce its security interest as a bankruptcy had been filed by Slover.  Bank of New York Mellon obtained a default judgment against Slover due to Slover’s failure to file an answer or otherwise appear even though proper service was obtained.  In February,2016 an order of foreclosure and sale was ordered.  In August, 2016, Slover file a motion to vacate the judgment stating that Mellon had no standing to bring the action stating that he never received notice that there has been an assignment of the mortgage to the Bank of New York Mellon.  The Court treated Slover’s motion as a Motion Pursuant to Civil Rule 60(B).  The Court overruled his motion finding that he failed to timely file an appeal and 60(B) motion cannot be used in place of an appeal.

HSBC Bank USA, N.A. v. Ward, 2017-Ohio-7315

  • This case involves a dispute between two lienholders who both claim a superior lien on the property. The Wards purchased the property from Turner. In order to purchase the property, they took out a mortgage with Novastar Mortgage and then paid the remaining balance of the purchase price to Turner by way of a promissory note and a security agreement.  Turner never recorded the security agreement with the Recorder’s office.  The Novastar mortgage was also never recorded and the deed to the Wards for the purchase of the property was never granted.  Despite not receiving certified documents from the closing company, NovaStar funded the loan and asked the title company to disburse the loan proceeds.  Less than a month after closing, the Wards executed a quit claim deed conveying title in the property back to Turner.  This deed was recorded.  The NovaStar note and mortgage were assigned to Ace Trust.  Turner then obtained a loan from Fremont Investment and Loan and this mortgage was recorded on January 12, 2007.  In Turner’s loan application, she stated that the only loan on the Property was that of Ward – a private mortgage.  Fremont contacted Ward and he signed the loan verification as Turner’s creditor even though the actual creditor at the time was NovaStar.  Fremont then transferred their note and mortgage to Ellington Trust in November, 2009.  Ward failed to pay the NovaStar loan and therefore, Ace Trust initiated a foreclosure proceeding.  The Court granted NovaStar default judgment against Ward and the title company and granted summary judgment against Turner.  The Court then granted Ellington Trust’s motion for summary judgment finding that their mortgage is valid and the first lien on the property after that of the Treasurer.  Ace Trust appealed.  The Court denied the appeal finding that “under Ohio law, a mortgage becomes operative as to third parties only upon its recording.”

B&J Resources, LLC v. 28925 Lorain Inc., 2017-Ohio-7248

  • B&H Resources purchased a property not realizing that there was a higher valuation done on the taxes that had not yet been reflected on the tax duplicate at the time of closing. B&H brought an action against Resource Title National Agency claiming that they negligently performed the title exam and Resource Title counterclaimed alleging that B&H agreed to hold them harmless and they wanted compensation for the costs of litigation.  The Court found in favor of Resource Title with regard to B&H’s claim and found in favor of B&H with regard to Resource Title’s claim and both parties appealed.  The Court found that there was no breach of contract on the part of Resource Title because the contract required them to use the last available tax duplicate, which they did.  The Court further found that B&H failed to establish that the title company breached any duty of care.  As it relates to claims by Resource for fees, the Court found that the request for fees came from the actions of a settlement agent to holds funds for escrow not the duties of a title agent for which they were being sued.

Barry v. Bay Village Bd. Of Zoning Appeals, 2017-Ohio-7244

  • Barry sought a variance of the 50 foot setback requirement of his front yard to add a utility room onto his house as he was not able to build in the back. The board of zoning appeals denied his request for a variance finding that his property was already overbuilt in that he had a garage that was added on to the front and he was already 14 feet over the existing setback line.  He filed three different variations of his variance request and each one was denied.  The Court found that the board of zoning appeals’ decision was “supported by substantial, reliable and probative evidence” and therefore sustained the decision of the trial court.  The Court stated that in determining whether to grant an area variance, the Supreme Court has instructed zoning boards to consider the “practical difficulties” for the application.  The factors for this consideration are as follows: “(1) whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance; (2) whether the variance is substantial; (3) whether the essential character of the neighborhood would be substantially altered or whether adjoining property would suffer a substantial detriment as a result of the variance; (4) whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage); (5) whether the property owner purchased the property with knowledge of the zoning restriction; (6) whether the property owner’s predicament feasibly can be obviated through some method other than a variance; (7) whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.”  Barry argued that all of these factors point to practical difficulties, but the Court disagreed finding that surplus storage may be nice for Barry, but it is not a substantial property right.

Fifth Third Mtge. Co. v. Orebaugh, 2013-Ohio-1730

  • Fifth Third filed a foreclosure action against the Defendant and was granted summary judgment. The Defendant filed an appeal arguing that Fifth Third failed to join an indispensable party, Fannie Mae, the owner of the note and mortgage. However, Fifth Third is the holder of the note and mortgage and the Court found that the holder is entitled to bring the foreclosure action.

Tenney v. St. Clair, 2013-Ohio-1717

  • The parties in this case were divorced and the property was granted to Defendant in the divorce action, and defendant was required to provide Plaintiff equity for her interest in the property. This was never done, and Plaintiff then filed a partition action requesting that the property be sold. Appellee filed a motion for summary judgment which was granted by the trial Court entitling appellee to the partition. However, since the property was zoned for agricultural use and is currently used as a horse arena and stable, it could not be divided and would therefore need to be sold. Appellant appealed. The Appellate Court determined that Appellee was entitled to bring the foreclosure action because the divorce proceeding did not finally adjudicate the parties’ property rights as it was contingent upon Appellee’s receipt of payment for her interest in the property, for which Appellant failed to fulfill. Therefore, the partition action was appropriate.

Bank of New York Mellon v. Matthews, 2013-Ohio-1707

  • Appellee filed a complaint for foreclosure and filed a motion for summary judgment. Appellant filed a motion to oppose the motion for summary judgment and filed a motion to dismiss arguing that Appellee was not the holder of the note when the complaint was filed. The Court granted Appellee’s motion for summary judgment and Appellant appealed. The Appellate Court found that appellee filed suit three months after the assignment of mortgage was file-stamped and notarized and recorded. The Court found that summary judgment in this case was appropriate.

Citizens Banking Co., v. Real Am, Inc. 2013-Ohio-1710

  • A complaint for foreclosure and cognovits judgment was filed in this case. The Plaintiff made a request for an appointment of a receiver, which was granted by the trial court. Defendant appealed arguing that the trial Court breached a due process obligation by failing to have a hearing on the request for a receiver. However, the Court had granted several extensions of time for appellants to file a brief in opposition to the motion for receiver, but they failed to file a brief. Additionally, there is not statutory requirement for a hearing. The judgment of the trial court was affirmed.

Learn more about the real property lawyers at Joseph & Joseph & Hanna. Our offices are conveniently located on West Main Street near the Franklin County Municipal Court.




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