[Cite as PNMAC Mtge. Co., L.L.C. v. Sivula, 2012-Ohio-4939.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 98082



                       PNMAC MORTGAGE CO., LLC
                                                 PLAINTIFF-APPELLANT

                                                   vs.


                           MICHAEL SIVULA, ET AL.
                                                 DEFENDANTS-APPELLEES



                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-755212

        BEFORE: Kilbane, J., Jones, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                        October 25, 2012
ATTORNEY FOR APPELLANT

Dennis Reimer
Reimer, Arnovitz, Chernek, Jeffrey Co., L.P.A.
2450 Edison Boulevard
P.O. Box 968
Twinsburg, Ohio 44087

APPELLEE

Michael Sivula, Pro Se
11465 Glenmora Drive
Chardon, Ohio 44024
MARY EILEEN KILBANE, J.:

       {¶1} Appellant PNMAC Mortgage Co., LLC (“PNMAC Mortgage”) appeals

from the order of the trial court that denied its motion to amend the bid that PNMAC

Loan Trust 2011-NPL1, c/o PennyMac Loan Services (“PennyMac Loan”), submitted in

a sheriff’s sale of foreclosed property and to confirm the sale in the name of appellant.

The sale was confirmed in the name of PennyMac Loan prior to the filing of the motion

to amend, and therefore, we conclude that the trial court properly denied the motion to

amend, stayed the confirmation of sale, and notified the appellant that its remedy is to file

a motion to vacate the sheriff’s sale and the decree of confirmation. For the reasons set

forth below, we affirm.

       {¶2} On May 13, 2011, PNMAC Mortgage1 filed a complaint for foreclosure

against defendants Michael Sivula and Kelly Sivula, alleging that they breached the terms

of their promissory note and mortgage on a parcel located at 5308 East 135th Street,

Garfield Heights, Ohio.

       {¶3} The defendants failed to appear in the action, and on November 4, 2011, the

trial court entered a default judgment against them and granted a foreclosure on the


       1 The record demonstrates that PNMAC Mortgage is the assignee of the
original lender, CitiMortgage, Inc.
premises. The trial court issued a notice of sheriff’s sale, scheduled for January 9, 2012.

On that date, PNMAC Mortgage filed an Assignment of Bid with the trial court, advising

that it had conveyed to PennyMac Loan its “right, title and interest in and to its bid at the

Sheriff[’s] Sale or real estate held * * * in which it was the successful bidder.” On

January 19, 2012, the trial court issued a decree of confirmation that provided in part as

follows:

       The court being satisfied of the legality of the sale and that the notice of
       sale was in all respects in conformity to law, approves and confirms the
       same and directs the sheriff to execute and deliver to [PennyMac Loan] * *
       * a good and sufficient deed thereof.

       {¶4} On January 23, 2012, four days after the trial court confirmed the sale,

PNMAC Mortgage filed a motion to stay confirmation of the sale and motion to correct

the bidder’s form in order to “amend the purchaser” of the property to PNMAC

Mortgage, maintaining that PennyMac Loan, the “entity that was designated initially to

take title is [not a Real Estate Trust] * * * under Ohio law and cannot take title.”

PNMAC Mortgage, in essence, sought to vacate its assignment of the bid to PennyMac

Loan and substitute PNMAC Mortgage in its place.

       {¶5} On February 13, 2012, the trial court stayed the confirmation of the sale, but

denied the motion to have the sale confirmed in the name of PNMAC Mortgage.

PNMAC Mortgage appealed on March 12, 2012. PNMAC then filed a motion for relief

from the order overruling the amendment of the purchaser on May 30, 2012, and this

court issued a temporary remand. The trial court denied the motion to vacate and issued

an opinion setting forth its reasoning as follows:
       When a mistake occurs at a sheriff’s sale, the proper procedure for
       addressing the mistake is to vacate the sale and to correct for a new sheriff’s
       sale. [Citations omitted].


       ***

       Once a bid at sheriff’s sale is successful, no further bids are accepted and
       the successful bidder must pay the amount due for the property to the
       sheriff. Ohio law remains silent on permitting any further assignments of
       bid or changing the purchaser at the sheriff’s sale. In fact, after the bidding
       is closed, the purchaser is recorded, the bid is accepted, and no bid remains
       to be assigned. The Bidder becomes the successful purchaser and must pay
       for the property.

       * * * This Court will not, therefore, pretend that another entity, other than
       the entity listed in the successful bidder’s form, purchased the subject
       property.

       ***

       It is irrelevant that the property was purchased by an entity that is not
       entitled to hold title to property. This situation is akin to having a minor
       child bid on property. [In that situation] the Court would not allow a
       change to another person’s name after the sale. The proper procedure
       under Ohio law is to vacate the sale and order an alias sale.

       {¶6} PNMAC Mortgage now appeals and assigns a single error for our review:

       The court erred in denying Appellant’s motion to correct bidder’s form and

       to have sale confirmed in the new bidder’s name.

       {¶7} PNMAC Mortage notes that PennyMac Loan is not a real estate trust or a

business trust, so it cannot take title to the property, and in general, the law favors the free

circulation of property. PNMAC Mortgage additionally asserts that the assignment of

the bid to PennyMac Loan is “improper, pursuant to the rules in the Sheriff’s Office.”
      {¶8} In this matter, we review for an abuse of discretion. Ohio Sav. Bank v.

Ambrose, 56 Ohio St.3d 53, 55, 563 N.E.2d 1388 (1990); Fifth Third Mtge. Co. v. Rankin,

4th Dist. No. 11CA8, 2012 Ohio 2806; Advance Mtge. Corp. v. Johnson, 3d Dist. No.

9-78-17,1979 Ohio App. LEXIS 10919 (June 19, 1979).

      {¶9} Pursuant to R.C. 2329.271, certain information is required of a purchaser at

execution sale. Where the purchaser is a trust, contact information must be provided.

Id. Where the required purchaser information is clearly within the record, the trial court

acts within its discretion in determining that the sale was made “in conformity to the law

and orders of [the] Court,” pursuant to R.C. 2329.31. Citimortgage, Inc. v. Haverkamp,

12th Dist. No. CA2010-11-089, 2011-Ohio-2099.

      {¶10} If the trial court, after reviewing the foreclosure proceedings, concludes

that the officers acted in accordance with the requirements of R.C. 2329.01 to 2329.61

inclusive, it shall confirm the sale. R.C. 2329.31. See also Ohio Sav. Bank, 56 Ohio

St.3d 53, 563 N.E.2d 1388 (1990). Similarly, where there has been an assignment of the

bid, prior to confirmation of the sale, the trial court may, in its discretion, confirm the

sale. See Huntington Natl. Bank v. Shanker, 8th Dist. No. 78127, 2001 Ohio App.

LEXIS 2191 (May 17, 2001).

       {¶11} The confirmation of sheriff’s sale is a special proceeding, however, and is a

final appealable order under R.C. 2505.02(B)(2). JP Morgan Chase Bank v. Dewine, 3d

Dist. No. 8-08-20, 2009-Ohio-87, citing Metro. Bank & Trust Co. v. Roth, 9th Dist. No.

21174, 2003-Ohio-1138, at ¶ 12, and Citizens L. & S. Co. v. Stone, 1 Ohio App.2d 551,
552-553, 206 N.E.2d 17 (12th Dist.1965). Therefore, once the trial court confirms the

sale, the “order of confirmation becomes dispositive as to the propriety of the sale and the

sale confirmation procedures unless the trial court properly vacates the confirmation

pursuant to Civ.R. 60(B).”          Sky Bank v. Mamone, 182 Ohio App.3d 323,

2009-Ohio-2265, 912 N.E.2d 668, ¶ 26 (8th Dist.), citing Triple F Invests., Inc. v. Pacific

Fin. Servs., Inc., 11th Dist. No. 2000-P-0090, 2001 Ohio App. LEXIS 2484 (June 1,

2001).      See also Fifth Third Mtge. Co. v. Rankin, 4th Dist. No. 11CA18,

2012-Ohio-2804, ¶ 12; Fed. Home Loan Mtge. Corp. v. Langdon, 4th Dist. No. 07AP12,

2008-Ohio-776, ¶ 21-22; Citimortgage at ¶ 17. Following confirmation of the sale,

therefore, the party seeking to vacate the confirmation must establish the requirements of

Civ.R. 60(B) and present “evidence of a mutual ‘mistake,’ any ‘excusable neglect,’ [or] a

valid defense against the requirement that it proceed with its purchase.” Sky Bank at ¶

29.

         {¶12} In this matter, the sheriff’s sale was scheduled for January 9, 2012, and on

that date PNMAC Mortgage notified the court that it had assigned its bid to PennyMac

Loan.     On January 19, 2012, the trial court concluded that all required statutory

procedures had been met and it issued a decree of confirmation ordering that the deed be

delivered to PennyMac Loan. This was a final order. Four days after the sale was

confirmed, on January 23, 2012, PNMAC Mortgage filed a motion to stay confirmation

of the sale and motion to correct the bidder’s form in order to “amend the purchaser” of

the property. Following the confirmation, the bidding process was closed and the bid
could not be assigned. The bid had already been accepted, closed, and confirmed. In

order to remedy defects, as aptly explained by the trial court, “the proper procedure for

addressing the mistake is to vacate the sale and to correct for a new sheriff’s sale.”

Therefore, the trial court acted within the proper exercise of its discretion when it denied

the motion to amend the bid, stayed the confirmation, and advised the parties that the

“proper procedure under Ohio law is to vacate the sale.” Here, however, PNMAC

Mortgage moved for relief from the order overruling the amendment of the purchaser, and

did not move for relief from the order of confirmation that is PNMAC Mortgage’s proper

remedy.      The assignment of error is therefore without merit.

       {¶13} Judgment affirmed.

       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., P.J., and
KENNETH A. ROCCO, J., CONCUR
