[Cite as Brandywine Preserve Cluster Assn., Inc. v. Carter, 2015-Ohio-4163.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

BRANDYWINE PRESERVE CLUSTER                                 C.A. No.           27584
ASSOCIATION, INC.

        Appellee
                                                            APPEAL FROM JUDGMENT
        v.                                                  ENTERED IN THE
                                                            COURT OF COMMON PLEAS
KEVIN CARTER, et al.                                        COUNTY OF SUMMIT, OHIO
                                                            CASE No.   CV 2009-05-3629
        Appellees

        and

JACK A. MARSILLO

        Appellant

                                 DECISION AND JOURNAL ENTRY

Dated: October 7, 2015



        HENSAL, Presiding Judge.

        {¶1}     Jack Marsillo appeals the trial court’s denial of his motion to vacate the judicial

sale. For the reasons set forth below, we affirm.

                                                      I.

        {¶2}     Brandywine Preserve Cluster Association, Inc. (“Brandywine”) filed a foreclosure

action against the property owned by Kevin and Cassandra Carter based upon the association’s

lien for unpaid expenses and assessments of the property. On March 30, 2010, the trial court

awarded summary judgment to Brandywine and ordered the property be sold subject to the

mortgage of Mortgage Electronic Registration Systems, Inc. (“MERS”), which was the senior

encumbrance on the property. An order of sale was issued, and the property was appraised.
                                                  2


However, Brandywine moved to withdraw the order of sale, indicating that it had reached an

agreement with the Carters.

       {¶3}    At Brandywine’s request, the trial court issued an alias order of sale on April 9,

2014, and the property was subsequently sold at auction. Mr. Marsillo entered the winning bid.

After learning that the MERS mortgage still encumbered the property, however, Mr. Marsillo

moved to intervene and to set aside the sale. Brandywine opposed Mr. Marsillo’s motion.1 The

trial court granted Mr. Marsillo’s motion to intervene, denied his motion to set aside the sale, and

confirmed the sale.

       {¶4}    Mr. Marsillo has appealed, raising a single assignment of error for our review.

                                                II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       DENYING APPELLANT’S MOTION TO SET ASIDE [THE] SHERIFF SALE.

       {¶5}    Mr. Marsillo argues that the trial court abused its discretion when it denied his

motion to set aside the sheriff’s sale because all of the statutory requirements for the sale had not

been met and because of his mistaken belief that the property was not encumbered. He also

argues that the trial court abused its discretion when it denied his motion without hearing.

       {¶6}    Revised Code Section 2329.31(A) provides,

       Upon the return of any writ of execution for the satisfaction of which lands and
       tenements have been sold, on careful examination of the proceedings of the
       officer making the sale, if the court of common pleas finds that the sale was made,
       in all respects, in conformity with sections 2329.01 to 2329.61 of the Revised
       Code, it shall, within thirty days of the return of the writ, direct the clerk of the
       court of common pleas to make an entry on the journal that the court is satisfied

       1
         Mr. Marsillo filed a motion to set aside the sheriff’s sale and a sur-reply motion, in
which he made additional arguments. Because it is clear the trial court considered both
arguments in both motions when it declined to set aside the sale, we will refer to the motions as a
single motion for ease of reading.
                                                3


       of the legality of such sale and that the attorney who filed the writ of execution
       make to the purchaser a deed for the lands and tenements. Nothing in this section
       prevents the court of common pleas from staying the confirmation of the sale to
       permit a property owner time to redeem the property or for any other reason that it
       determines is appropriate. In those instances, the sale shall be confirmed within
       thirty days after the termination of any stay of confirmation.

“While the statute speaks in mandatory terms, it has long been recognized that the trial court has

discretion to grant or deny confirmation: ‘Whether a judicial sale should be confirmed or set

aside is within the sound discretion of the trial court.’” Ohio Sav. Bank v. Ambrose, 56 Ohio

St.3d 53, 55 (1990), quoting Michigan Mortgage Corp. v. Oakley, 68 Ohio App.2d 83 (1st

Dist.1980), paragraph two of the syllabus. Thus, an appellate court reviews the trial court’s

decision for an abuse of discretion. See id. An abuse of discretion implies that the trial court’s

decision is arbitrary, unconscionable, or unreasonable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

       {¶7}    Mr. Marsillo argues that he was misled by the advertisement issued by the

Summit County Sheriff Department in this case. The advertisement read, in pertinent part,

       Per Amended Judgment Entry filed 05-07-2010, this property is to be sold subject
       to the mortgage of MERS, Mortgage Electronic Registration Systems, Inc., as
       nominee for NVR Mortgage Finance, at a minimum bid of not less than 2/3 of the
       difference between the value of the real estate as appraised and the amount
       remaining unpaid on the mortgage of defendant, MERS, Mortgage Electronic
       Registration Systems, Inc. as nominee for NVR Mortgage Finance. Amount due
       MERS is $309,956.78. Amount of Appraisal is $252,000.00. The difference
       between the two amounts is $57,956.78. 2/3 of the difference is the minimum bid,
       in the amount of $38,637.85

According to Mr. Marsillo, because the difference listed in the advertisement is a positive

number, he was led to incorrectly believe that the property had value.             However, the

advertisement is very clear that the amount due on the mortgage on the property is higher than

the appraised value of the property. Nevertheless, even assuming Mr. Marsillo misread the
                                                 4


advertisement, we still could not say that that fact alone renders the trial court’s denial of his

motion to set aside the sale unreasonable, arbitrary, or unconscionable.

       {¶8}    A judicial sale may be set aside for the same reasons a party may rescind a

contract, which include fraud, mutual mistake, or unilateral mistake.      See Winkler v. Westhaven

Group, LLC, 6th Dist. Lucas No. L-07-1282, 2009-Ohio-1530, ¶ 20. Mr. Marsillo’s assertion

that he misunderstood the terms of the sale would be a unilateral mistake. See General Tire, Inc.

v. Mehlfeldt, 118 Ohio App.3d 109, 115 (9th Dist.1997) (“A unilateral mistake occurs when one

party recognizes the true effect of an agreement while the other does not.”).

       To demonstrate a unilateral mistake warranting rescission of a contract, the party
       seeking rescission must show: (1) that it made a mistake at the time the contract
       was entered into; (2) that the mistake had a “material effect” on the agreed
       exchange of performances that was adverse to the mistaken party; and (3) that the
       other party knew or should have known of that mistake.

General Tire, Inc. v. Mehlfeldt, 9th Dist. Summit No. 19269, 1999 WL 420346, *3 (June 23,

1999), quoting Aviation Sales, Inc. v. Select Mobile Homes, 48 Ohio App.3d 90, 93-94 (2d

Dist.1988). See also Restatement of the Law 2d, Contracts, Section 153 (1981). However, a

unilateral mistake by a party renders a contract voidable “by him if he does not bear the risk of

the mistake under the rule stated in § 154 * * *.” Restatement of the Law 2d, Contracts, Section

153 (1981). “A party bears the risk of a mistake when * * * the risk is allocated to him by the

court on the ground that it is reasonable in the circumstances to do so.” Id. at Section 154(c).

       {¶9}    Assuming for the sake of argument that Mr. Marsillo meets the first two prongs of

the unilateral mistake test, he has not demonstrated that Brandywine knew or should have known

of his mistake. The mistake occurred because Mr. Marsillo did not understand the import of the

advertisement, which clearly indicated that the mortgage on the property exceeded the value of

the property. Furthermore, there is no indication that any party spoke with Mr. Marsillo before
                                                   5


the sale and, thus, there is no reason to believe that the parties knew or should have known that

Mr. Marsillo had his mistaken belief. Finally, given that no party to the foreclosure action gave

Mr. Marsillo incorrect information, it is reasonable that the risk of the mistake would fall to Mr.

Marsillo in this case. Accordingly, we cannot conclude that Mr. Marsillo demonstrated that his

unilateral mistake would be a basis for rescission.

       {¶10} Mr. Marsillo also argues that the sale should have been set aside due to fraud or

mutual mistake because either he and Brandywine were mistaken about the value of the property

or “Brandywine intentionally tried to defraud the bidding public into purchasing something

which has no value.” However, Mr. Marsillo sets forth no support for either allegation. There is

no indication that Brandywine had any illusions about the value of the property, nor is there any

indication that it attempted to mislead the public about the value of the property.            The

advertisement made it clear that the mortgage was greater than the appraised value of the

property. Compare with Society Natl. Bank v. Wolff, 6th Dist. Sandusky No. S-90-13, 1991 WL

64865, *4 (Apr. 26, 1991) (concluding that the notice of sale materially misrepresented the status

of the property when it indicated that there direct access to a state highway from the property

despite there not being one). Accordingly, we cannot conclude that Mr. Marsillo established that

a mutual mistake or fraud occurred in this case.

       {¶11} Mr. Marsillo argues that the trial court should have set the sale aside because it

would cause a great hardship to him “to pay $91,500.00 in order to satisfy a $3,935.00 lien in

favor of Brandywine for condominium association dues.” However, beyond pointing to the

amount of his bid, Mr. Marsillo did not set forth any information that would support his assertion

that the loss would create a great hardship, instead relying upon conclusory statements based

solely on the dollar amount. To be sure, $91,500 is a significant sum of money; nevertheless, the
                                                  6


amount is not inherently a hardship. While it is possible that Mr. Marsillo would suffer a great

hardship as a result of paying $91,500 for this property, we cannot conclude that he established

this fact in his motion or even set forth assertions that would call this issue into question.

       {¶12} Mr. Marsillo also argues that the trial court abused its discretion when it denied

his motion to set aside the sale because the sale did not comply with certain statutory

requirements. However, as noted above, “[w]hile the statute speaks in mandatory terms, it has

long been recognized that the trial court has discretion to grant or deny confirmation[,]” and Mr.

Marsillo has not articulated, either on appeal or before the trial court, how he was prejudiced by

the alleged lack of compliance with the statutes. Ohio Sav. Bank, 56 Ohio St.3d at 55. For

example, Mr. Marsillo argues that the advertisement does not comply with Section 2329.23

because it did not “include the web site address of the officer who makes the sale that allows a

person to obtain a complete legal description of the lands and tenements.” R.C. 2329.23. As the

trial court noted, however, the advertisement itself set forth the legal description of the property.

In other words, the information provided by the sheriff’s website would have merely been

redundant, a fact Mr. Marsillo does not dispute. Thus, it is difficult to see how Mr. Marsillo was

prejudiced by the lack of a website being listed in the advertisement.

       {¶13} Mr. Marsillo also argues that the sale did not comport with Sections 2329.17 and

2329.20. Section 2329.17 provides that, “[w]hen execution is levied upon lands and tenements,

the officer who makes the levy shall call an inquest of three disinterested freeholders, residents

of the county where the lands taken in execution are situated, and administer to them an oath

impartially to appraise the property so levied upon, upon actual view.” According to Mr.

Marsillo, the property should have been reappraised when the trial court issued the alias order of

sale since that was a new execution being levied upon the property. However, assuming Mr.
                                                  7


Marsillo is correct that there should have been a second appraisal, he has not explained how the

older appraisal prejudiced him as he did not present any information in his motion to set aside

that the appraised value of the property was too high.

       {¶14} Turning to Mr. Marsillo’s argument regarding Section 2329.20, we note that the

section provides

       that in all cases where a junior mortgage or other junior lien is sought to be
       enforced against real estate by an order, judgment, or decree of court, subject to a
       prior lien thereon, and such prior lien, and the claims or obligations secured
       thereby, are unaffected by such order, judgment, or decree, the court making such
       order, judgment, or decree, may determine the minimum amount for which such
       real estate may be sold, such minimum amount to be not less than two thirds of
       the difference between the value of the real estate appraised as provided in such
       section, and the amount remaining unpaid on the claims or obligations secured by
       such prior lien.

As the trial court correctly notes in its judgment entry, the advertisement follows the language of

the statute. Furthermore, the judicial sale complied with the statute because the statute only

requires that the minimum bid for a property “to be not less than two thirds of the difference,”

which the minimum in this case certainly was. Id. Thus, we cannot say that Mr. Marsillo is

correct that the advertisement is indicative that the sale was not conducted in compliance with

Section 2329.20.

       {¶15} Finally, we address Mr. Marsillo’s argument that the trial court abused its

discretion when it did not hold a hearing on his motion to set aside the sheriff’s sale. “[T]here is

no statutory dictate that a hearing be held [after a sheriff’s sale].” State ex rel. Midwest Pride IV,

Inc. v. Pontious, 75 Ohio St.3d 565, 567 (1996), quoting Union Bank Co. v. Brumbaugh, 69 Ohio

St.2d 202, 208 (1982).    Nevertheless, Mr. Marsillo argues that the trial court’s decision not to

hold one was an abuse of discretion because he was prevented from presenting evidence because

the trial court did not hold a hearing on his motion. However, Mr. Marsillo’s motion to set aside
                                                 8


the sheriff’s sale generally relied upon conclusory statements or technical deficiencies in the sale

rather than alleging facts that could establish that he suffered actual prejudice. We cannot say, in

light of the arguments and allegations set forth in Mr. Marsillo’s motion to set aside the sale that

the trial court abused its discretion when it denied his motion without a hearing.

       {¶16} We are cognizant that Mr. Marsillo most likely made an error when he bid on the

property in this case and are sympathetic to his position. However, we are also aware of the

standard of review and the inherent deference this court must give the trial court’s decision.

Upon a review of Mr. Marsillo’s motion to set aside the sheriff’s sale and his arguments on

appeal, we cannot conclude that the trial court abused its discretion when it denied the motion.

Accordingly, Mr. Marsillo’s assignment of error is overruled.

                                              III.

       {¶17} Mr. Marsillo’s assignment of error is overruled, and the judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                9


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    JENNIFER HENSAL
                                                    FOR THE COURT



MOORE, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

JOSEPH E. OLIVER, Attorney at Law, for Appellant.

KEVIN M. FIELDS and ERIKA R. FINLEY, Attorneys at Law, for Appellee.

DANIEL WHITE, Attorney at Law, for Appellee.

KIRK SAMPSON, Attorney at Law, for Appellee.
