The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
Am. Sub. H. B. No. 323 As Passed by the HouseAs Passed by the House
128th General Assembly | Regular Session | 2009-2010 |
| |
Cosponsors:
Representatives Chandler, Letson, Okey, Phillips, Koziura, Yuko, Domenick, Foley, Pillich, Driehaus, Luckie, Winburn, Stewart, Heard, Belcher, Boyd, Brown, DeGeeter, Dyer, Goyal, Harris, O'Farrell, Patten, Pryor, Skindell, Slesnick, Walter, Weddington, Williams, B.
A BILL
To amend sections 323.47, 2303.20, 2323.07, 2329.01,
2329.02, 2329.09, 2329.191, 2329.20, 2329.26,
2329.31, 2329.33, 2329.36, 2329.52, 2909.05,
2941.47, and 5723.01 and to enact sections 2308.01
to 2308.09 of the Revised Code to permit the trial
of a corporation in absentia in a criminal
proceeding initiated by complaint and relative to
residential foreclosure actions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 323.47, 2303.20, 2323.07, 2329.01,
2329.02, 2329.09, 2329.191, 2329.20, 2329.26, 2329.31, 2329.33,
2329.36, 2329.52, 2909.05, 2941.47, 2941.47, and 5723.01 be
amended and sections 2308.01, 2308.02, 2308.03, 2308.04, 2308.05,
2308.06, 2308.07, 2308.08, and 2308.09 of the Revised Code be
enacted to read as follows:
Sec. 323.47. (A) If land held by tenants in common is sold
upon proceedings in partition, or taken by the election of any of
the parties to such proceedings, or real estate is sold by
administrators, executors, guardians, or trustees, the court shall
order that the taxes, penalties, and assessments then due and
payable, and interest on those taxes, penalties, and assessments,
that are or will be a lien on such land or real estate at the time
the deed is transferred following the sale, be discharged out of
the proceeds of such sale or election. For purposes of determining
such amount, the county treasurer shall estimate the amount of
taxes, assessments, interest, and penalties that will be payable
at the time the deed of the property is transferred to the
purchaser. If the county treasurer's estimate exceeds the amount
of taxes, assessments, interest, and penalties actually payable
when the deed is transferred to the purchaser, the officer who
conducted the sale shall refund to the purchaser the difference
between the estimate and the amount actually payable. If the
amount of taxes, assessments, interest, and penalties actually
payable when the deed is transferred to the purchaser exceeds the
county treasurer's estimate, the officer shall certify the amount
of the excess to the treasurer, who shall enter that amount on the
real and public utility property tax duplicate opposite the
property; the amount of the excess shall be payable at the next
succeeding date prescribed for payment of taxes in section 323.12
of the Revised Code.
(B)(1) If real estate is sold at judicial sale, the court
shall order that the total of the following amounts shall be
discharged out of the proceeds of the sale but only to the extent
of such proceeds:
(a)(1) Taxes and assessments the lien for which attaches
before the confirmation of sale but that are not yet determined,
assessed, and levied for the year in which confirmation occurs,
apportioned pro rata to the part of that year that precedes
confirmation, and any penalties and interest on those taxes and
assessments, the amount of which shall be based on the date of the
sale;
(b)(2) All other taxes, assessments, penalties, and interest
the lien for which attached for a prior tax year but that have not
been paid on or before the date of confirmation.
(2) Upon the request of the officer who conducted the sale,
the county treasurer shall estimate the amount in division
(B)(1)(a) of this section. If the county treasurer's estimate
exceeds that amount, the officer who conducted the sale shall
refund to the purchaser the difference between the estimate and
the actual amount. If the actual amount exceeds the county
treasurer's estimate, the officer shall certify the amount of the
excess to the treasurer, who shall enter that amount on the real
and public utility property tax duplicate opposite the property;
the amount of the excess shall be payable at the next succeeding
date prescribed for payment of taxes in section 323.12 of the
Revised Code.
Sec. 2303.20. Under the circumstances described in sections
2969.21 to 2969.27 of the Revised Code, the clerk of the court of
common pleas shall charge the fees and perform the other duties
specified in those sections. In all other cases, the clerk shall
charge the following fees and no more:
(A) Twenty-five dollars for each cause of action which shall
include the following:
(1) Docketing in all dockets;
(2) Filing necessary documents, noting the filing of the
documents, except subpoena, on the dockets;
(3) Issuing certificate of deposit in foreign writs;
(4) Indexing pending suits and living judgments;
(5) Noting on appearance docket all papers mailed;
(6) Certificate for attorney's fee;
(7) Certificate for stenographer's fee;
(9) Entering on indictment any plea;
(10) Entering costs on docket and cash book.
(B) Two dollars for taking each undertaking, bond, or
recognizance;
(C) Two dollars for issuing each writ, order, or notice,
except subpoena;
(D) Two dollars for each name for issuing subpoena, swearing
witness, entering attendance, and certifying fees;
(E) Twenty-five dollars for calling a jury in each cause;
(F) Two dollars for each page, for entering on journal,
indexing, and posting on any docket;
(G) Three dollars for each execution or transcript of
judgment, including indexing;
(H) One dollar for each page, for making complete record,
including indexing;
(I) Five dollars for certifying a plat recorded in the county
recorder's office;
(J) Five dollars for issuing certificate to receiver or order
of reference with oath;
(K) Five dollars for entering satisfaction or partial
satisfaction of each lien on record in the county recorder's
office, and the clerk of courts' office;
(L) One dollar for each certificate of fact under seal of the
court, to be paid by the party demanding it;
(M) One dollar for taking each affidavit, including
certificate and seal;
(N) Two dollars for acknowledging all instruments in writing;
(O) Five dollars for making certificate of judgment;
(P) Ten dollars for filing, docketing, and endorsing a
certificate of judgment, including the indexing and noting the
return of the certificate;
(Q) Twenty-five dollars for each cause of action for each
judgment by confession, including all docketing, indexing, and
entries on the journal;
(R) Five dollars for recording commission of mayor or notary
public;
(S) One dollar for issuing any license except the licenses
issued pursuant to sections 1533.101, 1533.11, 1533.13, and
1533.32 of the Revised Code;
(T) Fifteen dollars for docketing and indexing each aid in
execution or petition to vacate, revive, or modify judgment,
including the filing and noting of all necessary documents;
(U) Twenty-five dollars for docketing and indexing each
appeal, including the filing and noting of all necessary
documents;
(V) A commission of two per cent on the first ten thousand
dollars and one per cent on all exceeding ten thousand dollars for
receiving and disbursing money, other than costs and fees, paid to
or deposited with the clerk of courts in pursuance of an order of
court or on judgments, including moneys invested by order of the
court and interest earned on them;
(W) Five dollars for numbering, docketing, indexing, and
filing each authenticated or certified copy of the record, or any
portion of an authenticated or certified copy of the record, of an
extra county action or proceeding;
(X) Two dollars for each certificate of divorce, annulment,
or dissolution of marriage to the bureau of vital statistics;
(Y) Two dollars for each electronic transmission of a
document, plus one dollar for each page of that document. These
fees are to be paid by the party requesting the electronic
transmission.
(Z) One dollar for each page, for copies of pleadings,
process, record, or files, including certificate and seal;
(AA) An additional fee of twenty dollars for each filing for
a residential mortgage foreclosure action.
Sec. 2308.01. As used in this chapter:
(A) "Residential mortgage" means an obligation to pay a sum
of money evidenced by a note and secured by a lien upon a
residential property.
(B) "Residential property" means real property located within
this state consisting of land and a structure on that land
containing four or fewer dwelling units, each of which is intended
for occupancy by a separate household. "Residential property"
includes a residential condominium unit owned by an individual,
notwithstanding the number of units in the structure, and a
manufactured or mobile home that is subject to real property taxes
under section 4503.06 of the Revised Code.
Sec. 2308.02. No person shall file a complaint to initiate a
residential mortgage foreclosure action unless that complaint is
accompanied by the preliminary judicial report that section
2329.191 of the Revised Code requires.
Sec. 2308.03. (A) If the owner in a residential mortgage
foreclosure action does not answer or otherwise respond to the
clerk's summons and complaint in accordance with the Rules of
Civil Procedure, within ten days after the last due date for any
defendant who was served with a summons and complaint, the clerk
shall notify the plaintiff of that failure to respond and inform
the plaintiff that if the property is not occupied, the plaintiff
shall either file a motion for default judgment with the court or
submit a statement showing cause sufficient to the court why the
plaintiff is not filing such a motion. The plaintiff shall file
such a motion or statement within sixty days after the date of the
clerk's notice.
(B) If a plaintiff fails to comply with division (A) of this
section, the court shall dismiss the residential mortgage
foreclosure action without prejudice.
(C) Nothing in this section shall be construed to affect any
right of the plaintiff to file a motion for a default judgment on
an occupied property.
Sec. 2308.04. (A) Notwithstanding any other provision of the
Revised Code, a plaintiff may request, at the time the plaintiff
files a motion for a default judgment pursuant to section 2308.03
of the Revised Code, the court deem that the title of the property
transferred directly and immediately to the plaintiff in lieu of
sale and in lieu of a right to a deficiency judgment. A plaintiff
may make such a request, and a court may grant such a request,
only if all of the following apply:
(1) In the plaintiff's prayer and complaint to initiate the
residential mortgage foreclosure action, the plaintiff
specifically reserved the right to request the additional relief
of a transfer in lieu of sale and in lieu of a right to a
deficiency judgment in the event that the plaintiff filed a motion
for a default judgment in the course of the foreclosure action.
(2) All liens attached to the property, other than liens for
real property taxes, are those of the plaintiff.
(3) The owner did not answer or otherwise respond to the
clerk's summons and complaint in accordance with the Rules of
Civil Procedure.
(B)(1) Upon receiving a motion for a default judgment
accompanied by a request for the additional relief of a transfer
in lieu of sale and in lieu of a right to a deficiency judgment
that meets the requirements of division (A) of this section, a
court immediately shall provide written notice to the owner of
that motion and request for additional relief. In that notice, the
court shall order the owner to show cause why the court should not
enter a default judgment and transfer the property directly and
immediately to the plaintiff in lieu of sale and in lieu of a
right to a deficiency judgment. An owner shall show cause within
thirty days of the court's order or shall be deemed to not oppose
the default judgment and transfer of the property to the
plaintiff.
(2) When a court grants a request for a transfer in lieu of
sale and in lieu of a right to a deficiency judgment pursuant to
this section, the plaintiff shall provide the information section
2329.271 of the Revised Code requires as if the plaintiff were the
successful purchaser at sale, and the officer who would have made
the sale shall prepare the deed as section 2329.31 of the Revised
Code requires. The court shall confirm the transfer in lieu of
sale and in lieu of a right to a deficiency judgment in the same
manner as the court confirms sales under section 2329.31 of the
Revised Code. Such transfer shall be deemed a release of the
owner's liability on the underlying debt to the plaintiff, and the
value of the property shall be deemed to equal the amount of the
underlying debt.
Sec. 2308.05. (A)(1) The plaintiff and any other lienholder,
within sixty days after receiving the clerk's notice of the filing
of the judgment of foreclosure under division (G) of section
2329.02 of the Revised Code, shall file for a writ of execution of
a judgment in a residential mortgage foreclosure action or show
cause for not filing. A lienholder other than the primary
lienholder shall file for a contingent writ of execution or show
cause why a contingent writ is not being sought within that same
sixty-day period. The court shall issue an order accordingly to
the owner, the plaintiff, and any other lienholder who appeared in
the action stating that, during that same sixty-day period, the
owner, the plaintiff, and any other lienholder may show cause why
that property should not be deemed abandoned and transferred
pursuant to section 2308.06 of the Revised Code. A party may
assert any reason that the property should not be deemed
abandoned, including those listed under Rule 60 of the Rules of
Civil Procedure.
(2) A plaintiff or other lienholder who fails to file for a
writ of execution as this section requires and who does not show
cause for that failure or why the property should not be deemed
abandoned and transferred, and an owner who fails to show cause
for why that property should not be deemed abandoned and
transferred, shall be deemed to have abandoned all interest in the
property and to any right of redemption. Any party who is deemed
to have abandoned the property is barred from seeking another
judgment on that property or making any claim against the
property, and shall not receive any proceeds from a sale of the
property.
(3) The court shall vacate any order of abandonment if the
plaintiff or other lienholder files a motion under Rule 60 of the
Rules of Civil Procedure, establishing that its failure was due to
mistake or inadvertence, or other good cause shown.
(4) If the plaintiff, all other lienholders, and the owner
are deemed to have abandoned the property, the property shall be
transferred pursuant to section 2308.06 of the Revised Code sixty
days after the court enters the order of abandonment, unless a
motion to vacate the order has been filed prior to that date. If
the motion is denied, the property shall be transferred in
accordance with this division.
(5) When a property is deemed abandoned pursuant to this
section, the rights of the plaintiff and other lienholders to seek
to collect the debts through other means or against assets other
than the real property which is the subject of the foreclosure
action remain unaffected. Any right to collect any such debt or
deficiency thereon remains unenforceable after the expiration of
two years after the date of transfer of the property.
(B) Upon receiving a filing for a writ of execution from the
plaintiff, the clerk shall issue the writ of execution pursuant to
section 2329.091 of the Revised Code.
(C) At its discretion, the court may extend the time period
this section establishes for filing for a writ of execution or
issuing that writ if the plaintiff and the owner in the action so
request, for any reason that the court considers appropriate.
(D) Notwithstanding sections 2329.09 and 2329.091 of the
Revised Code, a court may for good cause stay the issuance or
enforcement of a writ of execution if the owner and the plaintiff,
along with all other lienholders, enter into a forbearance or loan
modification agreement that allows the owner to make payments over
a specified period of time and that agreement is filed with the
court. The stay shall be effective so long as all of the parties
to the agreement comply with the terms of the agreement.
(E) No plaintiff or other lienholder may withdraw or dismiss
a petition for a writ of execution or an order of sale unless the
plaintiff or the owner requests such a dismissal and shows good
cause for that dismissal.
Sec. 2308.06. (A) Notwithstanding any other provision of the
Revised Code, a property upon which a residential mortgage
foreclosure action has been filed shall be deemed abandoned and is
subject to transfer under this section if either of the following
occur:
(1) The plaintiff, all other lienholders, and the owner are
deemed to have abandoned rights to the property under section
2308.05 of the Revised Code and no party showed cause sufficient
to the court as to why the property should not be deemed
abandoned.
(2) The officer making the sale has advertised the sale three
times and held three auctions on the property as described in
division (B) of section 2329.52 of the Revised Code, and at those
auctions no person placed a bid.
(B) The title of a property deemed abandoned pursuant to this
section vests without further action in the board of county
commissioners in the county where the property is located. The
clerk shall issue a notice of that vesting to the board of county
commissioners. The county prosecuting attorney shall prepare a
deed that contains the names of the parties to the judgment and
the owners of the foreclosed property, a reference to the volume
and page of the recording of the recorded instrument by or through
which the board of county commissioners claims title, the date and
the amount of the judgment, and the date on which the owner and
each lienholder is deemed to have abandoned the property. The
board of county commissioners shall record the deed within
fourteen business days after the latest date on which an owner and
any lienholder is deemed to have abandoned the property.
(C) The board of county commissioners may dispose of property
acquired under this section pursuant to rules it adopts. The rules
shall specify that the board shall place the property in the
county's land bank if the county has a land bank. If the county
does not have a land bank, the board shall dispose of the property
at its discretion.
(D) No board of county commissioners shall be liable for
damages arising from a breach, or subject to equitable remedies
for a breach of common law duty, or for violation of sections
3737.87 to 3737.891 of the Revised Code or Chapter 3704., 3734.,
3745., 3746., 3750., 3751., 3752., 6101., or 6111. of the Revised
Code or any rule adopted or order, permit, license, variance, or
plan approval issued under any of those chapters that is or was
committed by another person in connection with a property the
board of county commissioners acquires pursuant to this section.
Sec. 2308.07. (A) No plaintiff or other lienholder in a
residential mortgage foreclosure action may file a motion to
dismiss or vacate the judgment, the writ of execution, the order
of sale, the sale, or the confirmation of the sale, and no court
shall accept such a motion unless for good cause shown.
(B) In any residential mortgage foreclosure action in which a
plaintiff and an owner enter into a workout agreement or loan
modification, the court shall stay the foreclosure action at any
time prior to the sale upon the filing of a motion and affidavit
indicating that the plaintiff and owner have entered into a
workout agreement or loan modification. If at any time the
plaintiff notifies the court that the owner did not make payments
as agreed, the court shall notify the owner that it will resume
the foreclosure action.
Sec. 2308.08. (A) A lender who holds a mortgage on a
residential property may document a good faith belief that the
owner has abandoned the property. Documentation may include, but
is not limited to, a record of any of the following:
(1) Contacting or attempting to contact the owner by
telephone at any number available to the lender, including
landline and any means of wireless communication, to determine
whether the owner has abandoned the property;
(2) Contacting or attempting to contact the owner by regular
or electronic mail to determine whether the owner has abandoned
the property;
(3) Photographing the property from its exterior to
demonstrate signs of neglect or abandonment.
(B) Unless otherwise prohibited by the mortgage contract or a
specific provision of law, a lender who has documented a good
faith belief that a property on which the lender holds a mortgage
is abandoned may enter that property to secure and protect it from
damage any time after the lender has filed a residential mortgage
foreclosure action on that property.
(C) A lender who has not filed a residential mortgage
foreclosure action on a property for which the lender holds a
mortgage may enter and secure that property only if the mortgage
contract or other documents provide for such an entry.
(D) During the five-year period following the effective date
of this section, a plaintiff in a residential mortgage foreclosure
action who has a good faith belief that the property is abandoned
may provide the court with documentation of a good faith belief
that the owner has abandoned the property and request the court to
deny the owner the equitable and statutory rights to redemption of
the mortgage on that property.
Sec. 2308.09. A person who is an owner of residential
property who knowingly causes physical harm to that property after
the person has been personally served with a summons and complaint
in a residential mortgage foreclosure action relating to that
property is guilty of vandalism in violation of section 2909.05 of
the Revised Code.
Sec. 2323.07. (A)(1) When a mortgage is foreclosed or a
specific lien enforced, a sale of the property, or a transfer of
property pursuant to sections 323.28, 323.65 to 323.78, and
5721.19 of the Revised Code, shall be ordered by the court having
jurisdiction or the county board of revision with jurisdiction
pursuant to section 323.66 of the Revised Code.
(2) No specific lien may be enforced or suit brought on a
note on a residential property unless that action initially is
brought in a judicial foreclosure proceeding.
(B) When the real property to be sold is in one or more
tracts, the court may order the officer who makes the sale to
subdivide, appraise, and sell them in parcels, or sell any one of
the tracts as a whole.
(C) When the mortgaged property is situated in more than one
county, the court may order the sheriff or master of each county
to make sale of the property in the sheriff's or master's county,
or may direct one officer to sell the whole. When it consists of a
single tract, the court may direct that it be sold as one tract or
in separate parcels, and shall direct whether appraisers shall be
selected for each county or one set for all; and whether
publication of the sale shall be made in all the counties, or in
one county only.
Sec. 2329.01. (A) Lands and tenements, including vested
legal interests therein, permanent leasehold estates renewable
forever, and goods and chattels, not exempt by law, shall be
subject to the payment of debts, and liable to be taken on
execution and sold as provided in sections 2329.02 to 2329.61,
inclusive, of the Revised Code.
(B) As used in sections 2329.02 to 2329.61 of the Revised
Code, "residential mortgage" and "residential property" have the
same meanings as in section 2308.01 of the Revised Code.
Sec. 2329.02. (A) Any judgment or decree rendered by any
court of general jurisdiction, including district courts of the
United States, within this state shall be a lien upon lands and
tenements of each judgment debtor within any county of this state
from the time there is filed in the office of the clerk of the
court of common pleas of such county a certificate of such
judgment, setting forth the court in which the same was rendered,
the title and number of the action, the names of the judgment
creditors and judgment debtors, the amount of the judgment and
costs, the rate of interest, if the judgment provides for
interest, and the date from which such interest accrues, the date
of rendition of the judgment, and the volume and page of the
journal entry thereof.
(B) No such judgment or decree shall be a lien upon any
lands, whether or not situated within the county in which such
judgment is rendered, registered under sections 5309.02 to
5309.98, inclusive, and 5310.01 to 5310.21, inclusive, of the
Revised Code, until a certificate under the hand and official seal
of the clerk of the court in which the same is entered or of
record, stating the date and purport of the judgment, giving the
number of the case, the full names of the parties, plaintiff and
defendant, and the volume and page of the journal or record in
which it is entered, or a certified copy of such judgment, stating
such facts, is filed and noted in the office of the county
recorder of the county in which the land is situated, and a
memorial of the same is entered upon the register of the last
certificate of title to the land to be affected.
Such certificate shall be made by the clerk of the court in
which the judgment was rendered, under the seal of said court,
upon the order of any person in whose favor such judgment was
rendered or upon the order of any person claiming under him a
person in whose favor such judgment was rendered, and shall be
delivered to the party so ordering the same; and the fee therefor
shall be taxed in the costs of the action.
(C) When any such certificate is delivered to the clerk of
the court of common pleas of any county in this state, the same
shall be filed by such clerk, and
he the clerk shall docket and
index it under the names of the judgment creditors and the
judgment debtors in a judgment docket, which shall show as to each
judgment all of the matters set forth in such certificate as
required by this section. The fee for such filing, docketing, and
indexing shall be taxed as increased costs of such judgment upon
such judgment docket and shall be included in the lien of the
judgment.
(D) When the clerk of any court, other than that rendering
the judgment, in whose office any such certificate is filed, has
docketed and indexed the same,
he the clerk shall indorse upon
such certificate the fact of such filing with the date thereof and
the volume and page of the docket entry of such certificate and
shall return the same so indorsed to the clerk of the court in
which the judgment was rendered, who shall note upon the original
docket the fact of the filing of said certificate, showing the
county in which the same was filed and the date of such filing.
When such certificate is filed, docketed, and indexed in the
office of the clerk of the court which rendered the judgment, such
clerk shall likewise indorse the certificate and make like
notation upon the original docket.
Each such judgment shall be deemed to have been rendered in
the county in which is kept the journal of the court rendering the
same, in which journal such judgment is entered.
(E) Certificates or certified copies of judgments or decrees
of any courts of general jurisdiction, including district courts
of the United States, within this state, may be filed, registered,
noted, and memorials thereof entered, in the office of the
recorder of any county in which is situated land registered under
sections 5309.02 to 5309.98, inclusive, and 5310.01 to 5310.21,
inclusive, of the Revised Code, for the purpose of making such
judgments liens upon such registered land.
(F) Notwithstanding any other provision of the Revised Code,
any judgment issued in a court of record may be transferred to any
other court of record. Any proceedings for collection may be had
on such judgment the same as if it had been issued by the
transferee court.
(G) When a clerk files a judgment of foreclosure in a
residential mortgage foreclosure action, the clerk shall provide
notice of that filing to the judgment debtor, the judgment
creditor, and any lienholder who has appeared in the action. The
notice shall include information with respect to the requirements
of section 2308.05 of the Revised Code and the consequences of a
failure to comply with that section.
Sec. 2329.09. (A) The writ of execution against the property
of a judgment debtor issuing from a court of record shall command
the officer to whom it is directed to levy on the goods and
chattels of the debtor. If no goods or chattels can be found, the
officer shall levy on the lands and tenements of the debtor. If
the court rendering the judgment or decree so orders, real estate
may be sold under execution as follows: one third cash on the day
of sale, one third in one year, one third in two years thereafter,
with interest on deferred payments, to be secured by mortgage on
the premises so sold. An execution on a judgment rendered against
a partnership firm by its firm name shall operate only on the
partnership property. The exact amount of the debt, damages, and
costs, for which the judgment is entered, shall be indorsed on the
execution.
(B) On any order of sale that the clerk delivers to the
officer making the sale in a residential mortgage foreclosure
action, the clerk shall include a notation that sets forth all of
the clerk's costs with respect to that foreclosure action and
sale. The clerk shall deliver a copy of the order of sale to the
attorney for the lienholder who filed for the writ of execution.
(C) Within fourteen days after receiving an order of sale
from the clerk, the officer making that sale shall set the date of
the sale.
Sec. 2329.191. (A) As used in this section, "title insurance
company" has the same meaning as in section 3953.01 of the Revised
Code.
(B) In every action demanding the judicial sale of
residential real estate consisting of one to four single-family
units, the party seeking that judicial sale shall file with the
clerk of the court of common pleas within fourteen days after
filing the pleadings requesting relief, together with the
complaint a preliminary judicial report on a form that is approved
by the department of insurance that is prepared and issued by a
duly licensed title insurance agent on behalf of a licensed title
insurance company or by a title insurance company that is
authorized by the department of insurance to transact business in
this state. The preliminary judicial report shall be effective
within thirty days prior to the filing of the complaint or other
pleading requesting a judicial sale and shall include at least all
of the following:
(1) A legal description of each parcel of real estate to be
sold at the judicial sale;
(2) The street address of the real estate or, if there is no
street address, the name of the street or road upon which the real
estate fronts together with the names of the streets or roads
immediately to the north and south or east and west of the real
estate;
(3) The county treasurer's permanent parcel number or other
tax identification number of the real estate;
(4) The name of the owners of record of the real estate to be
sold;
(5) A reference to the volume and page or instrument number
of the recording by which the owners acquired title to the real
estate;
(6) A description of the record title to the real estate;
however, easements, restrictions, setback lines, declarations,
conditions, covenants, reservations, and rights-of-way that were
filed for record prior to the lien being foreclosed are not
required to be included;
(7) The name and address of each lienholder and the name and
address of each lienholder's attorney, if any, as shown on the
recorded lien of the lienholder.
Prior to submitting any order or judgment entry to a court
that would order the sale of the residential real estate, the
party submitting the order or judgment entry shall file with the
clerk of the court of common pleas a final judicial report that
updates the state of the record title to that real estate from the
effective date of the preliminary judicial report through the date
of lis pendens and includes a copy of the court's docket for the
case. The cost of the title examination necessary for the
preparation of both the preliminary judicial report and the final
judicial report together with the premiums for those reports
computed as required by the department of insurance, based on the
fair market value of the real estate, or in the case of a
foreclosure, the principal balance of the mortgage or other lien
being foreclosed on or any other additional amount as may be
ordered by the court shall be taxed as costs in the case.
(C) In every action demanding the judicial sale of
residential real estate consisting of more than four single-family
units or of commercial real estate, the party seeking that
judicial sale shall file with the clerk of the court of common
pleas within fourteen days after filing the pleadings requesting
relief together with the complaint either a preliminary judicial
report or a commitment for an owner's fee policy of title
insurance on the form approved by the department of insurance that
is prepared and issued by a duly licensed title insurance agent on
behalf of a licensed title insurance company. Division (B) of this
section applies if the party seeking the judicial sale files a
preliminary judicial report. If the party seeking the judicial
sale files a commitment for an owner's fee policy of title
insurance, the commitment shall have an effective date within
fourteen days prior to the filing of the complaint or other
pleading requesting a judicial sale and shall contain at least all
of the information required in divisions (B)(1) to (7) of this
section. The commitment shall cover each parcel of real estate to
be sold, shall include the amount of the successful bid at the
judicial sale, shall show the purchaser at the judicial sale as
the proposed insured, and shall not expire until thirty days after
the recordation of the deed by the officer who makes the sale to
that purchaser. After the officer's return of the order of sale
and prior to the confirmation of the sale, the party requesting
the order of sale shall cause an invoice for the cost of the title
insurance policy, commitment cost related expenses, and
cancellation fees, if any, to be filed with the clerk of the court
of common pleas. The amount of the invoice shall be taxed as costs
in the case. The purchaser at the judicial sale may, by paying the
premium for the title insurance policy, obtain the issuance of
title insurance in accordance with the commitment.
Sec. 2329.20. No Except as otherwise provided in this
section or sections 2329.51 and 2329.52 of the Revised Code, no
tract of land shall be sold for less than two thirds of the value
returned in the inquest required by section 2329.17 of the Revised
Code; except that in. In all cases where in which 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.
The price at which a foreclosed residential property sells at a
sheriff's auction shall not be used as a basis for establishing
the market value of any other property.
Sec. 2329.26. (A) Lands and tenements taken in execution
shall not be sold until all of the following occur:
(1)(a) Except as otherwise provided in division (A)(1)(b) of
this section, the judgment creditor who seeks the sale of the
lands and tenements or the judgment creditor's attorney does both
of the following:
(i) Causes a written notice of the date, time, and place of
the sale to be served in accordance with divisions (A) and (B) of
Civil Rule 5 upon the judgment debtor and upon each other party to
the action in which the judgment giving rise to the execution was
rendered;
(ii) At least seven calendar days prior to the date of the
sale, files with the clerk of the court that rendered the judgment
giving rise to the execution a copy of the written notice
described in division (A)(1)(a)(i) of this section with proof of
service endorsed on the copy in the form described in division (D)
of Civil Rule 5.
(b) Service of the written notice described in division
(A)(1)(a)(i) of this section is not required to be made upon any
party who is in default for failure to appear in the action in
which the judgment giving rise to the execution was rendered.
(2) The officer taking the lands and tenements gives public
notice of the date, time, and place of the sale. Notice for the
first attempt to sell the lands and tenements shall be given for
at least three weeks before the day of sale by advertisement in a
newspaper published in and of general circulation in the county.
The court ordering the sale may designate in the order of sale the
newspaper in which this public notice shall be published, and this
public notice is subject to division (A) of section 2329.27 of the
Revised Code. Notices of subsequent sales of the lands and
tenements may be made electronically on a web site the officer
maintains. The officer shall set the date for any subsequent sale
to be not later than thirty days following the immediate prior
attempt to sell.
(3) The officer taking the lands and tenements shall collect
collects the purchaser's information required by section 2329.271
of the Revised Code.
(B) The officer making the sale may accept a written bid from
a lienholder at any time prior to that sale. The public notice of
the sale may include notice of this opportunity to make a written
bid prior to the sale. The officer may, at the officer's
discretion, open the bidding at the amount of any written bid.
(C) If the purchaser at a sale is a lienholder, the officer
making the sale shall not charge the purchaser any deposit or
other fees prior to the time at which the purchase price is due
pursuant to division (B) of section 2329.31 of the Revised Code.
(D) If the purchaser at sale plans to assign the right to
purchase that property to another party, and that party will pay
the balance of the purchase price to the officer making the sale,
the assignment of the purchaser's bid may be made at any time
prior to the preparation of the deed, and notice of that
assignment may be filed with the officer at any time prior to the
preparation of the deed.
(E) A sale of lands and tenements taken in execution may be
set aside in accordance with division (B) of section 2329.27 of
the Revised Code.
Sec. 2329.31. (A) Upon (1) Except as otherwise provided in
division (A)(2) of this section, 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 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
(2) In any sale pursuant to a residential mortgage
foreclosure action, if the clerk of court receives no written
objection to that sale within seven days after the return to the
clerk of the writ of execution, on careful examination of the
proceedings of the officer making the sale, the court shall deem
that the sale is final and shall confirm that sale. The clerk
shall make an entry on the journal that the sale is deemed legal.
(3) 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.
(B) The officer making the sale shall require the purchaser,
including a lienholder, to pay within thirty days of after the
confirmation of the sale the balance amount due on the purchase
price of the lands and tenements unless the court grants the
purchaser an extension for good cause.
Sec. 2329.33. In sales of real estate on execution or order
of sale, at any time before the confirmation thereof or, if a
residential foreclosure action, not later than sixty days
following the clerk's notice of the filing of the judgment, the
debtor may redeem it from sale by depositing in the hands of the
clerk of the court of common pleas to which such execution or
order is returnable, the amount of the judgment or decree upon
which such lands were sold, with all costs, including poundage,
and interest at the rate of eight per cent per annum on the
purchase money from the day of sale to the time of such deposit,
except where the judgment creditor is the purchaser, the interest
at such rate on the excess above his the judgment creditor's
claim. The court of common pleas thereupon shall make an order
setting aside such sale, and apply the deposit to the payment of
such judgment or decree and costs, and award such interest to the
purchaser, who shall receive from the officer making the sale the
purchase money paid by him the purchaser, and the interest from
the clerk. This section does not take away the power of the court
to set aside such sale for any reason for which it might have been
set aside prior to April 16, 1888.
Sec. 2329.36. (A) The attorney who files the writ of
execution shall, not later than seven days after the filing of
clerk files the order of confirmation of sale pursuant to section
2329.31 of the Revised Code, make to the purchaser a deed,
containing the names of the parties to the judgment, the names of
the owners of the property sold, a reference to the volume and
page of the recording of the next preceding recorded instrument by
or through which the owners claim title, the date and amount of
the judgment, the substance of the execution or order on which the
property was sold, the substance of the officer's return thereon,
and the order of confirmation and deliver the deed to the officer
who sold the real property. The deed shall be executed,
acknowledged, and recorded as other deeds. The officer or the
officer's legal representative may review and approve or reject
the deed for form and substance.
(B) By placing a bid at a sale conducted pursuant to this
chapter, the purchaser appoints the officer who makes the sale as
agent of the purchaser for the sole purpose of accepting delivery
of the deed described in division (A) of this section.
(C)(1) The officer who sells the real property, or the
officer's designee, shall record the deed, or for registered land
file the documents required by section 5309.64 of the Revised
Code, with the county recorder within fourteen business days
of
after the later of the date the purchaser pays the balance due on
the purchase price of the lands and tenements or the date the
court confirms the sale. The officer shall charge the purchaser a
fee to cover the actual costs of preparing and recording the deed
or filing the documents.
(2) Notwithstanding division (C)(1) of this section, a
purchaser may deliver any remaining balance of the purchase price
to the officer making the sale, together with an affidavit stating
the purchaser will submit the deed for recording within seven days
after receipt of the deed. Upon receiving the remaining balance
and affidavit, the officer making the sale shall release the
unrecorded deed to the purchaser who shall submit that deed for
recording within the seven-day period and deliver evidence of the
same to the sheriff or face penalties for contempt of court. If
the purchaser fails to deliver evidence to the sheriff that the
deed has been submitted for recording with the seven-day period,
the sheriff shall notify the court and the court shall schedule
proceedings against the purchaser for contempt of court.
Sec. 2329.52. When (A) Except as otherwise provided in
division (B) of this section, when premises are ordered to be
sold, if said premises, or a part thereof, remain unsold for want
of bidders after having been once appraised, advertised, and
offered for sale, the court from which the order of sale issued
may, on motion of the plaintiff or defendant and from time to time
until said premises are disposed of, order a new appraisement and
sale or direct the amount for which said premises, or a part
thereof, may be sold.
The court may order that the premises be sold as follows: One
third cash in hand, one third in nine months from the day of sale,
and the remaining one third in eighteen months from the day of
sale, the deferred payments to draw interest at six per cent and
be secured by a mortgage on the premises.
(B) When a residential property is ordered to be sold
pursuant to a residential mortgage foreclosure action, if the
property remains unsold after the first auction with a minimum bid
of two-thirds of the appraised value as established pursuant to
section 2329.17 of the Revised Code, a second auction shall be
held with minimum bid set at two-thirds of the minimum bid
established for the first sale. If the property remains unsold
after the second auction, a third auction shall be held with a
minimum bid in an amount the court establishes at its discretion.
A property that remains unsold after three auctions shall be
deemed abandoned pursuant to section 2308.06 of the Revised Code
and is subject to transfer as provided in that section.
Sec. 2909.05. (A) No person shall knowingly cause serious
physical harm to an occupied structure or any of its contents.
(B)(1) No person shall knowingly cause physical harm to
property that is owned or possessed by another, when either of the
following applies:
(a) The property is used by its owner or possessor in the
owner's or possessor's profession, business, trade, or occupation,
and the value of the property or the amount of physical harm
involved is five hundred dollars or more;
(b) Regardless of the value of the property or the amount of
damage done, the property or its equivalent is necessary in order
for its owner or possessor to engage in the owner's or possessor's
profession, business, trade, or occupation.
(2) No person shall knowingly cause serious physical harm to
property that is owned, leased, or controlled by a governmental
entity. A governmental entity includes, but is not limited to, the
state or a political subdivision of the state, a school district,
the board of trustees of a public library or public university, or
any other body corporate and politic responsible for governmental
activities only in geographical areas smaller than that of the
state.
(C) No person, without privilege to do so, shall knowingly
cause serious physical harm to any tomb, monument, gravestone, or
other similar structure that is used as a memorial for the dead;
to any fence, railing, curb, or other property that is used to
protect, enclose, or ornament any cemetery; or to a cemetery.
(D) No person, without privilege to do so, shall knowingly
cause physical harm to a place of burial by breaking and entering
into a tomb, crypt, casket, or other structure that is used as a
memorial for the dead or as an enclosure for the dead.
(E) No person who is an owner of a residential property shall
knowingly cause physical harm to that property after the person
has been personally served with a summons and complaint in a
residential mortgage foreclosure action relating to that property.
(F) Whoever violates this section is guilty of vandalism.
Except as otherwise provided in this division, vandalism is a
felony of the fifth degree that is punishable by a fine of up to
two thousand five hundred dollars in addition to the penalties
specified for a felony of the fifth degree in sections 2929.11 to
2929.18 of the Revised Code. If the value of the property or the
amount of physical harm involved is five thousand dollars or more
but less than one hundred thousand dollars, vandalism is a felony
of the fourth degree. If the value of the property or the amount
of physical harm involved is one hundred thousand dollars or more,
vandalism is a felony of the third degree.
(F)(G) For purposes of this section:
(1) "Cemetery" means any place of burial and includes burial
sites that contain American Indian burial objects placed with or
containing American Indian human remains.
(2) "Residential property" has the same meaning as in section
2308.01 of the Revised Code.
(3) "Serious physical harm" means physical harm to property
that results in loss to the value of the property of five hundred
dollars or more.
Sec. 2941.47. When an indictment is returned or information
or complaint filed against a corporation, a summons commanding the
sheriff to notify the accused thereof, returnable on the seventh
day after its date, shall issue on praecipe of the prosecuting
attorney. Such The summons with a copy of the indictment,
information or complaint shall be served and returned in the
manner provided for service of summons upon corporations in civil
actions. If the service cannot be made in the county where the
prosecution began, the sheriff may make service in any other
county of the state, upon the president, secretary,
superintendent, clerk, treasurer, cashier, managing agent, or
other chief officer thereof, or by leaving a copy at a general or
branch office or usual place of doing business of such
corporation, with the person having charge thereof. Such
The
corporation shall appear by one of its officers or by counsel on
or before the return day of the summons served and answer to the
indictment or, information, or complaint by motion, demurrer, or
plea, and upon failure to make
such an appearance and answer, the
clerk of the court of common pleas shall enter a plea of "not
guilty." Upon such an appearance being made or plea entered, the
corporation is before the court until the case is finally disposed
of. On said the indictment or, information, or complaint, no
warrant of arrest may issue except for individuals who may be
included in such the indictment or, information, or complaint.
Sec. 5723.01. (A)(1) Every tract of land and town lot,
which, pursuant to foreclosure proceedings under section 323.25,
sections 323.65 to 323.79, or section 5721.18 of the Revised Code,
has been advertised and offered for sale on two separate
occasions, not less than two weeks apart, and not sold for want of
bidders, shall be forfeited to the state or to a political
subdivision, school district, or county land reutilization
corporation pursuant to division (A)(3) of this section.
(2) The county prosecuting attorney shall certify to the
court that such tract of land or town lot has been twice offered
for sale and not sold for want of a bidder. Such forfeiture of
lands and town lots shall be effective when the court by entry
orders such lands and town lots forfeited to the state or to a
political subdivision, school district, or county land
reutilization corporation pursuant to division (A)(3) of this
section. A copy of such entry shall be certified to the county
auditor and, after the date of the certification, all the right,
title, claim, and interest of the former owner is transferred to
and vested in the state to be disposed of in compliance with this
chapter.
(3) After having been notified pursuant to division (A)(2) of
this section that the tract of land or town lot has been twice
offered for sale and not sold for want of bidders, the court shall
notify the political subdivision and school district in which the
property is located, and any county land reutilization corporation
in the county, and offer to forfeit the property to the political
subdivision, school district, or corporation, or to an electing
subdivision as defined in section 5722.01 of the Revised Code,
upon a petition from the political subdivision, school district,
or corporation. If no such petition is filed with the court within
ten days after notification by the court, the court shall forfeit
the property to the state. If a political subdivision, school
district, or corporation requests through a petition to receive
the property through forfeiture, the forfeiture of land and town
lots is effective when, by entry, the court orders such lands and
town lots forfeited to the political subdivision, school district,
or corporation. The court shall certify a copy of the entry to the
county auditor and, after the date of certification,
all the
right, title, claim, and interest of the former owner is
transferred to and vested in the political subdivision, school
district, or corporation the county auditor shall promptly
transfer to such political subdivision, school district, or
corporation, by auditor's deed, the fee simple title to the
property free and clear of all taxes, assessments, charges,
penalties, interest, and costs. Any subordinate liens shall be
deemed fully and forever satisfied and discharged and the property
shall be deemed sold by the state for no consideration. The
political subdivision, school district, or corporation shall file
the deed for recording.
(B) Every parcel against which a judgment of foreclosure and
forfeiture is made in accordance with section 5721.16 of the
Revised Code is forfeited to the state on the date the court
enters a finding under that section. After that date, all the
right, title, claim, and interest of the former owner is
transferred to the state to be disposed of in compliance with the
relevant provisions of this chapter.
Section 2. That existing sections 323.47, 2303.20, 2323.07,
2329.01, 2329.02, 2329.09, 2329.191, 2329.20, 2329.26, 2329.31,
2329.33, 2329.36, 2329.52, 2909.05, 2941.47, and 5723.01 of the
Revised Code are hereby repealed.
|
|