Update and Expansion: Appeals in a Foreclosure Case, an Empty Right in Ohio?


Update and Expansion: Appeals in a Foreclosure Case, an Empty Right in Ohio?

Update and Expansion: Appeals in a Foreclosure Case, an Empty Right in Ohio?

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A few months ago, I posted a blog article questioning the true economic viability of appellate opportunities of a putative junior lien creditor in Ohio foreclosure cases. In that post, I speculated on the situation that might be faced by an appealing mortgagor if it wanted to appeal from a trial court order granting a decree of foreclosure and directing a sale of the liened property. A new decision addresses that fact pattern.

The prior article was prompted by the Green Tree Servicing v. Asterino-Starcher, et al., 2018-Ohio-977 (Franklin Cty. App., March 15, 2018) decision and the interpretation therein of Ohio Revised Code Section 2329.45.  A few months after the Green Tree Servicing decision, the Ohio Supreme Court weighed in on appeal by the other common foreclosure defendant, the mortgagor.  For better or worse, the answer is the same: a foreclosure case defendant’s right to appeal is often, in reality, illusory.

State of Ohio ex rel. Sponaugle v. Hein, Judge, 153 Ohio St. 3d 560 (Aug. 9, 2018) is a writ case against a common pleas court judge.  The unusual procedural situation arose from an ordinary residential foreclosure case in Darke County, Ohio initiated by a mortgage lending financial institution.  Unlike the Green Tree Servicingsituation, in Sponaugle the mortgagor fought the foreclosure case.  Again, a foreclosure decree was granted to the lien creditor plaintiff and a foreclosure sale was held.  As in Green Tree Servicing, a defendant (here the mortgagors, Mr. and Ms. Sponaugle rather than a junior lien creditor) appealed from the foreclosure decree and sought a stay of the foreclosure sale.


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