Rule 2.23.1, Sheriff’s Sale of Real Estate

A. DEFAULT PROCEDURE

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

C. NOTICE OF SALE

C. NOTICE OF SALE:

In every action in any 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:
- 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
- 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.
Said notice may be mailed to:
- the last known address(es) of the record owner(s) and other interested parties not in default for failure to appear or
- counsel of record for the record owner(s) and other interested parties not in default for failure to appear.
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.
Failure to provide timely notice pursuant to this Subsection shall constitute grounds for denying confirmation of the sale.
The public notice shall be by advertisement in the Dayton Daily News, a newspaper of general circulation that the Court has designated pursuant to R.C. 2329.26.
- Each public notice shall list the parcels(s) for sale for a particular case number. The Sheriff’s Office may not list parcels relating to multiple case numbers in a single public notice.

D. REQUIRED FILING

D. REQUIRED FILING:

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.
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

E. CANCELLATION OF SALE:

In every action in any 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).
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.
Neither the Clerk nor the Court shall notify the Sheriff of any cancellation.

F. PROCEDURE

F. PROCEDURE:

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.
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.
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.
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

G. TERMS OF SALE:

Residential Property:
- Unless the successful bidder is the first lien holder, the successful bidder(s) as to a judicial sale of residential property shall make a deposit in the following amount immediately following the sale:

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

Commercial Property:
- 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.
- 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.
- The successful bidder’s failure to comply with these terms shall invalidate the sale.

H. APPRAISERS’ FEES

H. APPRAISERS’ FEES:

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).
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.
- Research to establish a property value shall not include payment for previous research on previously evaluated property.
- Each fee request pursuant to this Subsection shall include a certification with an accounting of all time expended in determining property value (Appendix L).
- The plaintiff or plaintiff’s attorney shall be notified in advance by the appraiser of any request for hourly fees.
- 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

I. RESIDENTIAL PROPERTY APPRAISALS:

The appraisers shall return to the Sheriff the appraisal within 21 days of the issuance of the order of appraisal.
- 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.
If the appraisers fail to deliver their appraisal within 21 days after the issuance of the order of appraisal, then the following shall occur:
- The cost of the appraisal shall not be payable to the appraisers or taxed as costs in the case.
- 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).
- 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

J. REMOTE BIDDING:

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.
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.
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.
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 2.23.1, Sheriff’s Sale of Real Estate

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