[Cite as Talmer Bank & Trust v. Schultz, 2016-Ohio-2726.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                               Nos. 103306, 103432, and 103545


                         TALMER BANK AND TRUST
                        S.B.M. TO FIRST PLACE BANK

                                                            PLAINTIFF-APPELLANT

                                                    vs.

                         DARREN W. SCHULTZ, ET AL.

                                                            DEFENDANTS-APPELLEES


                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-15-839515

        BEFORE: Jones, A.J., Kilbane, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: April 28, 2016
ATTORNEYS FOR APPELLANT

James L. Sassano
Eric T. Deighton
Richard J. Feuerman
Carlisle McNellie Rini Kramer & Ulrich Co., L.P.A.
24755 Chagrin Blvd., Suite 200
Cleveland, Ohio 44122


FOR APPELLEES

Darren Schultz, pro se
Lynn Schultz, pro se
9776 Maurer Drive
Olmsted Township, Ohio 44138

Malik Dahdouh, pro se
4591 Andrea Drive
North Olmsted, Ohio 44070

For State Of Ohio Department Of Taxation

Mike DeWine
Ohio Attorney General
150 East Gay Street
Columbus, Ohio 43215

For Woodgate Homeowners Association

Frank J. Angell, Statutory Agent
180 East Broad Street, 16th Floor
Columbus, Ohio 43215

For Cach L.L.C.

CT Corporation System
1300 East 9th Street
Cleveland, Ohio 44114
LARRY A. JONES, SR., A.J.:

      {¶1} Talmer Bank and Trust, successor by merger to First Place Bank, appeals from

three trial court judgments in this consolidated appeal. The first judgment denied its

motion to return order of sale without execution and to cancel the sheriff’s sale (also

referred to as the “motion to stay”) (Talmer Bank & Trust v. Schultz, 8th Dist. Cuyahoga

No. 103306). The second judgment denied its motion to vacate the sale (Talmer Bank &

Trust v. Schultz, 8th Dist. Cuyahoga No. 103432). And the third judgment denied the

joint motion of the bank, the homeowners (defendants-appellees Darren and Lynn

Schultz), and the third-party purchaser (Malik Dadouh) to vacate confirmation of the sale

(Talmer Bank & Trust v. Schultz, 8th Dist. Cuyahoga No. 103545). We reverse the trial

court’s judgments.

Procedural and Factual History

      {¶2} In January 2015, Talmer Bank and Trust filed this foreclosure action against

homeowners Darren and Lynn Schultz, seeking to foreclose on their Olmsted Township

house. The trial court issued a standing order, which, among other things, provided the

following:

      (1) In the event the debtor enters into a forbearance agreement, loan
      modification, payment plan or any other similar settlement with the plaintiff,
      whether it is before judgment or after judgment, the plaintiff must notify the
      court of said agreement within 14 days of entering such an agreement.
      Failure to notify the court of such an agreement will result in a show cause
      hearing.
       (2) In the event the court awards plaintiff with a judgment and/or decree of
       foreclosure, plaintiff is ordered to provide the clerk and/or sheriff with all
       necessary documents to trigger the sale of the within property within 30 days
       of the date of the court’s judgment. Failure to do so will result in the court
       vacating any judgment and/or decree or foreclosure and dismissing the case
       without prejudice for failure to comply. * * *.

       {¶3} In April 2015, the bank filed a motion for default judgment against the

Schultzes.    The court set the matter for a May 6, 2015 pretrial hearing.         Counsel for the

bank appeared at the hearing, but the defendants did not.            The trial court granted the

bank’s unopposed motion for default judgment, and reiterated its order to the bank to

provide all the necessary documentation to trigger the sale within 30 days.            The court’s

order was memorialized in a journal entry of the same date, May 6, 2015.

       {¶4} On May 14, 2015, counsel for the bank filed a praecipe for order of sale; the

sheriff’s sale was thereafter set for July 6, 2015. On July 1, 2015, counsel for the bank

filed a motion to return order of sale without execution and cancel the July 6, 2015

sheriff’s sale.    As grounds for the motion, the bank stated that it was “engaged in

settlement negotiations with the property owner * * * [and] [t]he parties are discussing * *

* loan modification.” On July 6, 2015, the date of the sale, the court issued a judgment

denying the bank’s motion, stating “insufficient reason provided.”

       {¶5} The sheriff’s sale took place on July 6 as scheduled.1 The order of sale was

returned on July 7, 2015, and on July 14, 2015, the court issued an order, which provided


       1
         The bank asserts that the judgment denying the motion to stay was issued after the sale had
already taken place.
in part that a “party may redeem before confirmation of sale.            Nothing in this order

prevents the court from staying the confirmation of sale to permit a property owner

additional time to redeem.”

       {¶6} On July 15, 2015, counsel for the bank filed a motion to vacate the sale.       In

its motion, the bank contended that, under 12 C.F.R. 1024.41(g), because of the attempted

settlement negotiations it had been in with the homeowners, it was not permitted to

proceed with the foreclosure.    The bank submitted the affidavit of its vice president in

support of its motion.    The vice president averred, in part, that “on May 6, 2015, a

streamline loan modification file review was activated regarding the loan,” that a

“complete loss mitigation application has been received from Darren W. Schultz,” and that

“instructions were provided to Plaintiff’s attorney on June 30, 2015 to place the

foreclosure on hold and cancel the July 6, 2015 sheriff’s sale.”   The trial court denied the

bank’s motion without explanation. The court confirmed the sale in August 2015.

       {¶7} On September 9, 2015, the Schultzes (homeowners), Malik Dahdouh

(third-party purchaser), and the bank filed a joint motion to vacate the confirmation of

sale, all contending that they did not want the sale to remain intact.    The court denied the

motion on the ground that “an insufficient reason [was] provided to the court.”      The bank

now presents the following assignments of error for our review:

       I. The trial court improperly denied Plaintiff/Appellant, Talmer Bank and
       Trust Successor by Merger to First Place Bank’s Motion to Stay Execution
       of Judgment and Cancel the July 6, 2015 Sheriff’s Sale as Talmer was
       prohibited by federal law from going forward with the July 6, 2015 Sheriff’s
       Sale.
       II. The trial court abused its discretion in denying Talmer’s Motion to
       Vacate the July 6, 2015 Sheriff’s Sale despite the equities in this case being
       in favor of vacating said sale.

       III. The trial court abused its discretion in confirming the July 6, 2015
       Sheriff’s Sale despite the equities in this case being in favor of vacating said
       sale.

       IV. The trial court abused its discretion in denying the joint motion of all
       interested parties to vacate the Confirmation of Sale pursuant to Ohio Rule
       of Civil Procedure 60(B)(4) and (5) despite the equities in this case being in
       favor of vacating said Order as all interested parties, having settled the case,
       wanted the confirmation of sale vacated.

Law and Analysis

       {¶8} For its first assignment of error, the bank contends that the trial court erred by

denying its motion to stay execution of judgment and cancel the sheriff’s sale. According

to the bank, under federal law, it was required to consider the Schultzes’ complete loss

mitigation application and, therefore, not go forward with the July 6, 2015 sheriff’s sale.

       {¶9} The bank cites 12 C.F.R. 1024.41(g) in support of its contention. That

federal regulation governs loss mitigation procedures and provides in relevant part as

follows:

       (g) Prohibition on foreclosure sale. If a borrower submits a complete loss
       mitigation application after a servicer has made the first notice or filing
       required by applicable law for any judicial or non-judicial foreclosure
       process but more than 37 days before a foreclosure sale, a servicer shall not
       move for foreclosure judgment or order of sale, or conduct a foreclosure
       sale, unless:

       (1) The servicer has sent the borrower a notice pursuant to paragraph
       (c)(1)(ii) of this section that the borrower is not eligible for any loss
       mitigation option and the appeal process in paragraph (h) of this section is
       not applicable, the borrower has not requested an appeal within the
       applicable time period for requesting an appeal, or the borrower’s appeal has
       been denied;

       (2) The borrower rejects all loss mitigation options offered by the servicer;
       or

       (3) The borrower fails to perform under an agreement on a loss mitigation
       option.

       {¶10} The record here is not clear whether the Schultzes submitted a complete loss

mitigation application more than 37 days before the July 6, 2015 sheriff’s sale. The

bank’s vice president averred in her affidavit that “on May 6, 2015, a streamline loan

modification file review was activated.”            She further averred that a “complete loss

application has been received from Darren W. Schultz,” but did not state the date that the

application was received. Thus, it is not clear whether 12 C.F.R. 1024.41(g) applied in

this case.

       {¶11} Further, we note that the vice president’s affidavit was attached to the bank’s

July 15, 2015 motion to vacate the sale, not the July 1, 2015 motion to stay the sale. The

reason given by the bank for the July 1 motion was that the bank was “engaged in

settlement negotiations with the property owner * * * [and] [t]he parties are discussing *

* * loan modification.”

       {¶12} The bank contends that based on the application of the federal regulation, we

are required to review the court’s decision on the motion to stay de novo.2 But because it


       2
         The bank cites Brownlee v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 97707,
2012-Ohio-2212, in which this court stated that the “abuse of discretion standard of review has no
application in the context of the court deciding to stay proceedings pending the outcome of arbitration
because a stay in such circumstances is mandatory, not discretionary.” Id. at ¶ 9, citing N. Park
Retirement Community Ctr., Inc. v. Sovran Companies, Ltd., 8th Dist. Cuyahoga No. 96376,
is not clear whether 12 C.F.R. 1024.41(g) applied here, we review as we generally would

when considering the denial of a motion for stay — for an abuse of discretion. See Wells

Fargo Bank, N.A. v. Fields, 8th Dist. Cuyahoga Nos. 101814 and 101985,

2015-Ohio-4580, ¶ 32.

       {¶13} Thus, we next consider whether the trial court abused its discretion in

denying the bank’s motion to stay given the court’s standing order. That order provided

that if the debtor entered into any type of settlement agreement or plan with the plaintiff,

“whether it is before judgment or after judgment,” the plaintiff must notify the court within

14 days of the agreement or plan.        The order further provided that failure to notify the

court of such an agreement or plan would result in a show cause hearing.

       {¶14} As noted, the bank’s ground for its motion to stay was that the parties were in

settlement negotiations and discussing loan modification; it was not grounded on an actual

agreement. Nonetheless, we find that on its given reason for denying the motion, i.e.,

“insufficient reason provided,” the court abused its discretion.3 The trial court’s standing

order was a perfectly reasonable attempt to efficiently control its docket. See Chou v.

Chou, 8th Dist. Cuyahoga No. 80611, 2002-Ohio-5335, ¶ 38. But it should not be so

rigidly applied to work an injustice, especially in a case like this, where there is no

evidence of delay, harrassment, or any other improper motive on the part of the party


2011-Ohio-5179, ¶ 7.
       3
         If the sale had already taken place when the court ruled on the motion, as the bank asserts
was the case, the court could have denied the motion as moot and set the matter for a hearing to
pursue further proceedings, i.e., vacating the judgment.
requesting the stay, and there would be no prejudice to other parties (quite the opposite for

the Schultzes).    “Once a trial court determines that foreclosure is legally sound, ‘it must

then consider the equities of the situation in order to decide whether foreclosure is

appropriate.’” Christopher Michael Homes, LLC v. Treillage Residence Owners’ Assn.,

12th Dist. Butler No. CA2013-12-238, 2014-Ohio-4754, ¶ 25, quoting U.S. Bank, N.A. v.

Bryant, 12th Dist. Butler No. CA2012-12-266, 2013-Ohio-3993, ¶ 7.

         {¶15} In light of the above, the first assignment of error is sustained.

         {¶16} The bank’s second, third and fourth assignments of error challenge the trial

court’s judgments (1) denying its motion to vacate the sale (second assignment), (2)

confirming the sale (third assignment), and (3) denying the joint motion of the parties and

third-party purchaser to vacate the confirmation of sale (fourth assignment).         We also

review these three assignments of error for an abuse of discretion.4 We find merit to all

three assignments.     As mentioned, because foreclosure is equitable relief, just because the

legal requirements have been met, does not mean that, as a matter of law, the foreclosure

should proceed.      Christopher Michael Homes, LLC at id. The record is clear that the

bank no longer wanted to foreclose on the home because it was trying to negotiate a

settlement with the Schultzes. Further, the third-party purchaser did not want the sale to

stand.

         {¶17} In light of the above, the second, third, and fourth assignments of error are



         See Ohio Sav. Bank v. Ambrose, 56 Ohio St.3d 53, 55, 563 N.E.2d 1388 (1990) (decisions
         4

on confirming or vacating judicial sale are left to the sound discretion of the trial court).
sustained.

       {¶18} Judgments reversed; case remanded to the trial court with instructions to

vacate the confirmation of sale.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.




LARRY A. JONES, SR., ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, J., and
PATRICIA ANN BLACKMON, J., CONCUR
