AMENDMENTS TO LOCAL RULES 2.23 - 2.23.4 EMERGENCY STATUS EFFECTIVE MAY 10, 2017 (MontCourt News & Announcements)

 
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AMENDMENTS TO LOCAL RULES 2.23 - 2.23.4 EMERGENCY STATUS EFFECTIVE MAY 10, 2017

Posted: 2017-05-08

NOTICE

MONTGOMERY COUNTY COMMON PLEAS COURT, GENERAL DIVISION

AMENDMENTS TO LOCAL RULE 2.23, JUDICIAL SALE OF REAL ESTATE. 2.23.1, SHERIFF'S SALE OF REAL ESTATE. 2.23.2, PRIVATE SELLING OFFICER'S (PSO) SALE OF REAL ESTATE. 2.23.3, MOTION FOR SALE OF RESIDENTIAL PROPERTY BY PROSECUTING ATTORNEY. 2.23.4, EXPEDITED FORECLOSURE ACTIONS - VACANT AND ABANDONED RESIDENTIAL PROPERTY

(EMERGENCY STATUS - EFFECTIVE MAY 10, 2017)

The General Division of the Montgomery County Common Pleas Court adopted amendments to Local Rule 2.23, 2.23.1, 2.23.2, 2.23.3, and 2.23.4 effective MAY 10, 2017.

Pursuant to Mont. Co. C.P.R. 1.03 of the Local Rules of Practice and Procedure for the Montgomery County Court of Common Pleas and Rule 5 of the Rules of Superintendence for the Courts of Ohio, the adopted amendments are being published for a sixty-day comment period beginning Wednesday, May 10, 2017, through Monday, July 10, 2017.

Comments regarding the adopted amendments to Local Rule 2.03 can be submitted via email to rulecom@montcourt.org or in writing to:

James E. Dare, Court Administrator

Montgomery County Common Pleas Court

41 N. Perry Street

P.O. Box 972

Dayton, OH 45422

Comments must be received by 4:30 p.m. on Monday, July 10, 2017.

Rule 2.23 - Judicial Sale of Real Estate

A. CERTIFICATION:

1. In every action filed in the Court or any other division of the Common Pleas Court of Montgomery County, Ohio wherein a judicial sale of real estate is contemplated by the complaint or subsequent pleadings, the party praying for said sale or the party's counsel shall endorse the following Certification upon the complaint or subsequent pleading:

"The undersigned hereby certifies that an examination of the public records of Montgomery County, Ohio, has been made to determine the ownership of subject real estate and all parties who may claim an interest therein, and that, in the opinion of the undersigned, all interested parties have been named as parties to this action, [state as exceptions any interested party not so named]."

2. Subsection (A)(1) of this Rule shall not apply to proceedings under R.C. 5721.18.

B. ORDER: Upon any decree subsequently issued which orders the sale of real estate, the party or party's counsel who requested said sale shall further certify:

"The undersigned hereby certifies that the examination of title to subject real estate has been extended to [date] to determine if any parties have acquired any interest therein subsequent to the previous examination and the extended examination discloses that, in the opinion of the undersigned, there are no such parties except parties to whom the doctrine of lis pendens applies, [state as further exceptions any such party not subject to lis pendens]."

Rule 2.23.1 - Sheriff's Sale of Real Estate

A. DEFAULT PROCEDURE:

Unless the party requesting the sale or that party's counsel files a motion requesting the appointment of a Private Selling Officer, the county Sheriff shall conduct a public auction to sell the real property at issue in every foreclosure action demanding the judicial sale of property.

B. COMPLIANCE WITH RULE 2.23:

Prior to the a Sheriff's sale of real estate, parties must comply with Mont. Co. C.P.R. 2.23(A)(B).

C. NOTICE OF SALE:

1. In every action in the Court or any other division of the Common Pleas Court of Montgomery County, Ohio, wherein a judicial sale of real estate by the Sheriff is ordered, the party requesting the sale or the party's counsel shall promptly mail notice of the time, date and location of the sheriff's sale to:

a. the record owner(s) of the subject real estate whether or not in default for failure to appear, or counsel for the record owner(s), unless service of summons on the record owner(s) was accomplished only by publication and

b. all other interested parties not in default for failure to appear or to counsel of record for interested parties not in default for failure to appear.

2. Said notice may be mailed to:

a. the last known address(es) of the record owner(s) and other interested parties not in default for failure to appear or

b. counsel of record for the record owner(s) and other interested parties not in default for failure to appear.

3. No parties to the proceedings in default of answer need be served with notice of sale except by publication as provided by R.C. 2329.26 and 2329.27.

4. Failure to provide timely notice pursuant to this Subsection shall constitute grounds for denying confirmation of the sale.

D. REQUIRED FILING:

1. Not less than 14 days prior to the scheduled sale date, the party requesting the sale or the party's counsel shall file with the Clerk a Certificate of Service of Notice of Sale Date specifying the date and manner of service of the notice required in Subsection (C) of this Rule, the names and addresses of all record owner(s) and interested parties or counsel of record for the record owner(s), and interested parties who were sent the notice.

2. Failure to timely file the certificate of service required by this Subsection shall constitute grounds for denial of the confirmation of sale.

E. CANCELLATION OF SALE:

1. In every action in the Court or any other division of the Common Pleas Court of Montgomery County, Ohio, wherein a judicial sale of real estate by the Sheriff that has been ordered is to be canceled due to a filed bankruptcy petition or for any other reason, the party canceling the sale or the party's counsel shall file a copy of the filed bankruptcy petition or an entry canceling the sale pursuant to Mont. Co. C.P.R. 1.15(F)(2)(b) and 2.05(B)(1)(a)(iii).

2. The party requesting the cancellation or the party's counsel shall serve a copy of the file-stamped entry or bankruptcy petition on the Montgomery County Sheriff prior to said sale.

3. Neither the Clerk nor the Court shall notify the Sheriff of any cancellation.

F. PROCEDURE:

1. Prior to the sale, the Sheriff, deputy or party conducting the sale shall announce that successful bidder(s) shall have 30 days from the date of sale to obtain an examination of title to said real estate.

2. Should examination disclose the title to be unmarketable by reason of any defect in the proceedings or the existence of any interest not disclosed in either of the certifications described in Subsection (A) or (B) of this Rule, no liability shall be predicated on the certifications. The successful bidder(s) may, within the 30-day period, notify the Court of the defect and move the Court to set aside the sale.

3. If the Court finds title to be unmarketable, the Court shall refuse to confirm the sale. The Court may fix a reasonable time, not to exceed 90 days, within which any defect may be cured.

4. Waiver: The successful bidder(s) may waive any part or all of the 30-day period by signing the Confirmation Entry, but no Confirmation Entry not approved by the successful bidder(s) shall be filed until the 30-day period has expired.

G. TERMS OF SALE:

1. Mortgage Foreclosure Sales, Terms of Sale Residential Property:

a. Unless the successful bidder is the first lien holder, the successful bidder(s) as to a judicial sale of residential property shall deposit 10% of the purchase price make a deposit in the following amount immediately following the sale:

1) $2,000, if the property's appraised value is less than or equal to $10,000;

2) $5,000, if the property's appraised value is greater than $10,000 but less than or equal to $200,000; or

3) $10,000, if the property's appraised value is greater than $200,000.

b. The unpaid balance of the purchase price shall be paid to the Montgomery County Sheriff by certified or cashier's check within 30 days of the filing date of the confirmation of sale and distribution entry.

c. The successful bidder's failure to comply with these terms shall invalidate the sale and may result in a finding of contempt and forfeiture of the deposit paid.

2. Commercial Property:

a. Unless the successful bidder is the first lien holder, the successful bidder(s) as to a judicial sale of commercial property shall deposit 10% of the purchase price immediately following the sale.

b. The unpaid balance of the purchase price shall be paid to the Montgomery County Sheriff by certified or cashier's check within 30 days of the filing date of the confirmation of sale and distribution entry.

c. The successful bidder's failure to comply with these terms shall invalidate the sale.

3. Treasurer's Tax Sales, Terms of Sale:

a. The successful bidder(s) shall deposit $1,000.00 plus transfer and recording fees immediately following the sale.

b. The unpaid balance shall be paid to the Montgomery County Sheriff by certified or cashier's check within 15 days of the filing date of the confirmation of sale and distribution entry.

H. APPRAISERS' FEES:

1. Non-Commercial Real Estate/Single Unit Property: Pursuant to R. C. 2335.01, 2335.02, and 311.19, the appraisers' fee for the judicial sale of non-commercial real estate and single unit property shall be $60.00 per appraiser (Appendix K).

2. Commercial Real Estate/Multiple Unit Property: Appraisers' fees for commercial real estate or multiple unit property shall be $40.00 per hour for every hour actually spent in research to establish a value for the subject property.

a. Research to establish a property value shall not include payment for previous research on previously evaluated property.

b. Each fee request pursuant to this Subsection shall include a certification with an accounting of all time expended in determining property value (Appendix L).

c. The plaintiff or plaintiff's attorney shall be notified in advance by the appraiser of any request for hourly fees.

d. The maximum fee that may be paid without Court approval is $300.00. Any hourly fee request exceeding $300.00 shall be submitted to the Court for approval.

I. RESIDENTIAL PROPERTY APPRAISALS:

1. The appraisers shall return to the Sheriff the appraisal within 21 days of the issuance of the order of appraisal.

a. If a Private Selling Officer has been appointed pursuant to Rule 2.23.2, the appraisers shall also deliver a copy of their appraisal to the PSO contemporaneously with their delivery of their appraisal to the Sheriff.

2. If the appraisers fail to deliver their appraisal within 21 days after the issuance of the order of appraisal, then the following shall occur:

a. The cost of the appraisal shall not be payable to the appraisers or taxed as costs in the case.

b. The appraised value of the property shall by the fair market value of the property as shown on the records of the county auditor, unless the Court authorizes a separate appraisal of the property for good cause shown.

1) If a separate appraisal is obtained, the cost of the separate appraisal shall be included as an expense of the sale pursuant to 2329.152(D).

c. The advertisement and sale of the property shall proceed immediately in accordance with the order of advertisement and sale issued by the Clerk of Courts.

J. REMOTE BIDDING:

1. Pursuant to R.C. 2329.152(B), judgment creditors and lienholders may submit remote bids by using the facsimile number and/or email address established and maintained by the Sheriff's Office.

2. Each remote bid submitted shall be of a fixed maximum amount and shall be delivered to the Sheriff on or before 4:30 P.M. on the business day preceding the date of the sale.

3. Remote bidders will be notified of the results of the sale by no later than the close of business on the day of the sale.

4. If the Sheriff fails to place a remote bid on behalf of a judgment creditor or lienholder to the prejudice of the judgment creditor or lienholder, the judgment creditor or lienholder must file a motion to vacate the sale within 10 business days after the sale date, and the sale shall be vacated.

Rule 2.23.2 - Public Private Selling Officer's (PSO) Sale of Real Estate

A. MOTION FOR PSO:

1. As an alternative to a Sheriff's Sale of Real Estate, a party seeking a judicial sale of real property or the party's counsel may file a motion requesting that a Private Selling Officer be authorized to sell the property at a public auction. Such motion shall state:

a. the name and address of the proposed PSO;

b. that the proposed PSO is an Ohio resident; and

c. that the proposed PSO is licensed as both an auctioneer and as a real estate broker or real estate salesperson under Ohio law.

2. Only if the Court grants the motion may the subject property be sold by a PSO.

3. If the motion is granted, the judgment creditor may choose to have the property sold by either a PSO or the County Sheriff.

4. If the motion is denied, the property must be sold at Sheriff's sale and the procedures outlined in Rule 2.23.1 apply.

B. COMPLIANCE WITH RULE 2.23:

Prior to the a Public Private Selling Officer's sale of real estate, parties must comply with Mont. Co. C.P.R. 2.23(A)(B).

C. WRIT FOR APPRAISAL:

1. If the Court authorizes a PSO sale and the judgment creditor chooses such a sale, the judgment creditor must file with the Clerk of Court a writ requesting the issuance of an order of appraisal to the County Sheriff and an order of sale to the Private Selling Officer.

2. Once an order of sale by the PSO is issued and an appraisal is returned, the PSO shall immediately advertise and sell the real property.

D. FORM OF SALE:

1. An authorized PSO may conduct a public auction of the real property either online or at any physical location within this County.

2. If the auction occurs online, bidding must be open for at least 7 days.

3. If the auction occurs at a physical location, the PSO must establish and maintain a facsimile number or e-mail address for judgment creditors and lienholders to submit remote bids.

a. Each remote bid shall be of a fixed maximum amount and shall be delivered to the PSO on or before 4:30 P.M. on the business day preceding the date of the sale.

b. Remote bidders will be notified of the results of the sale by no later than the close of business on the day of the sale.

c. If the PSO fails to place a remote bid on behalf of a judgment creditor or lienholder to the prejudice of the judgment creditor or lienholder, the judgment creditor or lienholder must file a motion to vacate the sale within 10 business days after the sale date, and the sale shall be vacated.

E. NOTICE OF SALE:

1. In every action in the Court or any other division of the Common Pleas Court of Montgomery County, Ohio, wherein a judicial sale of real estate by a PSO is ordered authorized, the party requesting the sale or the party's counsel shall promptly mail notice of the time, date and location of the sheriff's sale to:

a. the record owner(s) of the subject real estate whether or not in default for failure to appear, or counsel for the record owner(s), unless service of summons on the record owner(s) was accomplished only by publication, and

b. all other interested parties not in default for failure to appear or to counsel of record for interested parties not in default for failure to appear.

2. Said notice may be mailed to:

a. the last known address(es) of the record owner(s) and other interested parties not in default for failure to appear, or

b. counsel of record for the record owner(s) and other interested parties not in default for failure to appear.

3. No parties to the proceedings in default of answer need be served with notice of sale except by publication as provided by R.C. 2329.26 and 2329.27.

4. The PSO shall give public notice of the sale:

a. If the sale is to be held at a physical location, notice must be given once a week for at least three consecutive weeks before the sale of the sale; or

b. If the sale is to be conducted online, notice must be given once a week for at least three weeks before the start date of the sale

5. The public notice shall be by advertisement in a newspaper of general circulation in the County and must meet the requirements of 7.12 of the Revised Code.

6. The public notice shall include all of the following information:

a. The date, time, and place of the sale if the sale is to be held at a physical location;

b. The start date, the minimum duration, and website address of the sale if the sale is to be held online;

c. The deposit required by 2329.211 of the Revised Code;

d. That the purchaser shall be responsible for those costs, allowances, and taxes that the proceeds of the sale are insufficient to cover; and

e. The provisional second sale date, if applicable.

7. Failure to provide timely notice pursuant to this Subsection shall constitute grounds for denying confirmation of the sale.

F. REQUIRED FILING:

1. Not less than 14 days prior to the scheduled sale date, the party requesting the sale or the party's counsel shall file with the Clerk a Certificate of Service of Notice of Sale Date specifying the date and manner of service of the notice required in Subsection (C) of this Rule, the names and addresses of all record owner(s) and interested parties or counsel of record for the record owner(s), and interested parties who were sent the notice.

2. Failure to timely file the certificate of service required by this Subsection shall constitute grounds for denial of the confirmation of sale.

G. POSTPONEMENT OR CANCELLATION OF SALE:

1. In every action in the Court or any other division of the Common Pleas Court of Montgomery County, Ohio, wherein a judicial sale of real estate by a PSO has been authorized, the judgment creditor may instruct the PSO to postpone or cancel the sale.

2. If the sale was to be held at a physical location:

a. any postponement must be announced by the PSO at the place and time set for the sale, and must include the date, time and place of the rescheduled sale; or

b. any cancellation must be announced by the PSO at the place and time set for the sale.

3. If the sale was to be held online:

a. any postponement must be announced by the PSO on the auction website and must include the date of the rescheduled sale; or

b. any cancellation must be announced by the PSO on the auction website and must remain posted until the end of the 7-day bidding period.

4. After a postponement, any rescheduled sale date(s) must be within 180 days of the initial sale date.

5. If a sale is postponed or canceled, all prior bids are void.

6. In every action in the Court or any other division of the Common Pleas Court of Montgomery County, Ohio, wherein If a judicial sale of real estate by a PSO that has been ordered is to be canceled due to a filed bankruptcy petition or for any other reason, the party canceling the sale or the party's counsel shall file a copy of the filed bankruptcy petition or an entry canceling the sale pursuant to Mont. Co. C.P.R. 1.15(F)(2)(b) and 2.05(B)(1)(a)(iii).

7. The party requesting the cancellation or the party's counsel shall serve a copy of the file-stamped entry or bankruptcy petition on the Montgomery County Sheriff prior to said sale.

8. Neither the Clerk nor the Court shall notify the Sheriff of any cancellation.

H. TITLE INSURANCE:

1. The authorized PSO may hire a title insurance agent licensed under Ohio law or a title insurance company authorized to do business in Ohio to perform title, escrow and closing services related to the sale.

2. Reasonable fees charged by the title agent or company shall be taxed as costs.

3. Fees up to $500 are presumed to be reasonable.

4. Fees in excess of $500 will be paid only if authorized by Court order.

I. COSTS AND REPORT:

1. If a sale is conducted by an authorized PSO, all of the following must be taxed as costs:

a. the cost of the appraisal;

b. the cost of the advertisement; and

c. the fee charged and all costs incurred by the PSO (excluding the appraisal and advertisement costs) up to 1.5 percent of the sale price of the real property.

2. Any amount exceeding 1.5 percent of the sale price must be paid by the judgment creditor or from the judgment creditor's portion of the sale proceeds, and cannot be taxed as costs.

3. After the sale, the PSO must file with the Court an itemized report of all appraisal, publication, marketing and other expenses of the sale and all fees charged by the PSO for marketing and/or conducting the sale, including fees charged by the title agent or title insurance company.

J. TERMS OF SALE:

1. Mortgage Foreclosure Sales, Terms of Sale Residential Property:

a. Unless the successful bidder is the first lien holder, the successful bidder(s) as to a judicial sale of residential property shall deposit 10% of the purchase price make a deposit in the following amount immediately following the sale:

1) $2,000, if the property's appraised value is less than or equal to $10,000;

2) $5,000, if the property's appraised value is greater than $10,000 but less than or equal to $200,000; or

3) $10,000, if the property's appraised value is greater than $200,000.

b. The unpaid balance of the purchase price shall be paid to the Montgomery County Sheriff by certified or cashier's check within 30 days of the filing date of the confirmation of sale and distribution entry.

c. These terms of sale shall be included by the PSO in the advertisement of the sale.

d. The successful bidder's failure to comply with these terms shall invalidate the sale and may result in a finding of contempt and forfeiture of the deposit paid.

2. Commercial Property:

a. Unless the successful bidder is the first lien holder, the successful bidder(s) as to a judicial sale of commercial property shall deposit 10% of the purchase price immediately following the sale.

b. The unpaid balance of the purchase price shall be paid to the Montgomery County Sheriff by certified or cashier's check within 30 days of the filing date of the confirmation of sale and distribution entry.

c. The successful bidder's failure to comply with these terms shall invalidate the sale.

3. Treasurer's Tax Sales, Terms of Sale:

a. The successful bidder(s) shall deposit $1,000.00 plus transfer and recording fees immediately following the sale.

b. The unpaid balance shall be paid to the Montgomery County Sheriff by certified or cashier's check within 15 days of the filing date of the confirmation of sale and distribution entry.

K. PROCEDURE:

1. Prior to the sale, the Sheriff, deputy or party conducting the sale shall announce that successful bidder(s) shall have 30 days from the date of sale to obtain an examination of title to said real estate.

2. Should examination disclose the title to be unmarketable by reason of any defect in the proceedings or the existence of any interest not disclosed in either of the certifications described in Subsection (A) or (B) of this Rule, no liability shall be predicated on the certifications. The successful bidder(s) may, within the 30-day period, notify the Court of the defect and move the Court to set aside the sale.

3. If the Court finds title to be unmarketable, the Court shall refuse to confirm the sale. The Court may fix a reasonable time, not to exceed 90 days, within which any defect may be cured.

4. Waiver: The successful bidder(s) may waive any part or all of the 30-day period by signing the Confirmation Entry, but no Confirmation Entry not approved by the successful bidder(s) shall be filed until the 30-day period has expired.

L. APPRAISERS' FEES:

1. Non-Commercial Real Estate/Single Unit Property: Pursuant to R. C. 2335.01, 2335.02, and 311.19, the appraisers' fee for the judicial sale of non-commercial real estate and single unit property shall be $60.00 per appraiser (Appendix K).

2. Commercial Real Estate/Multiple Unit Property: Appraisers' fees for commercial real estate or multiple unit property shall be $40.00 per hour for every hour actually spent in research to establish a value for the subject property.

a. Research to establish a property value shall not include payment for previous research on previously evaluated property.

b. Each fee request pursuant to this Subsection shall include a certification with an accounting of all time expended in determining property value (Appendix L).

c. The plaintiff or plaintiff's attorney shall be notified in advance by the appraiser of any request for hourly fees.

d. The maximum fee that may be paid without Court approval is $300.00. Any hourly fee request exceeding $300.00 shall be submitted to the Court for approval.

M. ADDITIONAL DUTIES AND AUTHORITY OF PSO:

A PSO shall have additional duties and authority as stated in R.C. 2329.01-2329.61.

Rule 2.23.3 - Motion for Sale of Residential Property by Prosecuting Attorney

A. PROCEDURE TO OBTAIN MOTION FOR SALE:

1. If residential real estate has not been sold or the sale is not underway within twelve (12) months after the decree of foreclosure has been entered, pursuant to R.C. 2329.071, the following may occur:

a. The political subdivision in which the residential real estate is located may request, by motion or other means, that the county Prosecuting Attorney file a motion with the court for the sale of the property;

b. Upon receipt of such request, or by its own motion, the Prosecuting Attorney of may file a motion with the Court for authorization to sell the property in the same manner as if the Prosecuting Attorney were the attorney for the party in whose favor the decree of foreclosure and order of sale was entered.

B. MOTION FOR SALE OF PROPERTY:

1. The Prosecuting Attorney shall serve a copy of the motion on all parties who entered an appearance in the foreclosure action in accordance with the Rules of Civil Procedure.

2. The Court shall decide the motion not sooner than 30 days after the filing of the motion.

3. The Court shall grant the motion for sale unless the Court finds good cause as to why the property should not be sold.

4. If the motion is granted, the Prosecuting Attorney shall issue a praecipe for order of sale and sell the property at the next available public auction with no set minimum bid and in accordance with the terms of the order of sale and applicable provisions of the Revised Code.

C. REDEMPTION BY JUDGMENT CREDITOR:

1. The judgment creditor has the right to redeem the property within 14 days after the sale by paying the purchase price to the Clerk of Courts.

2. Upon timely payment by the judgment creditor, the Court shall proceed as described in 2329.31, with the judgment creditor considered the successful purchaser at sale.

Rule 2.23.4 - Expedited Foreclosure Actions - Vacant and Abandoned Residential Property

A. MOTION FOR EXPEDITED FORECLOSURE:

1. A mortgagee who files a foreclosure action on a residential property may file a motion with the Court to proceed in an expedited manner where the property is vacant and abandoned.

a. The mortgagee must be a person entitled to enforce the instrument secured by the mortgage pursuant to 1303.31(A)(1) or (2) of the Revised Code, or a person with the right to enforce the obligation secured by the mortgage.

2. Timing of Court's decision on motion:

a. If the motion is filed before the last answer period has expired, the Court shall decide the motion within 21 days after the last answer period has expired.

b. If the motion is filed after the last answer period has expired, the Court shall decide the motion within 21 days after the filing of the motion.

3. In its motion, the mortgagee must list all applicable factors of R.C. 2308.02(C).

4. If the court makes a preliminary finding that the residential real property is vacant and abandoned, but a government official has not verified the real property is vacant and abandoned, within 7 days of the preliminary finding, the court shall order the appropriate official of a county, municipal corporation, or township in which the property is located to verify the property is vacant and abandoned.

a. Court costs assessed in connection with this Court ordered inspection must not exceed $50.00.

B. PROCEDURE:

1. If the Court decides that the property is vacant and abandoned and that the mortgagee who filed the motion to expedite is entitled to judgment, the court shall enter a final judgment and decree of foreclosure and order the property to be sold.

a. The property shall be offered for sale not later than 75 days after the issuance of the order of sale. The sale of the property shall be conducted in accordance with the requirements in 2329 of the Revised Code.

2. If the court decides that property is not vacant and abandoned, the 75-day deadline shall not apply to the sale of the property.

3. Nothing in this section shall supersede or limit other procedures adopted by the Court to resolve the residential foreclosure action, including foreclosure mediation.

 
     
 
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