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S. B. No. 197 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Cosponsors:
Senators Faber, Schaffer, Wagoner
A BILL
To amend sections 2303.201 and 2323.06 and to enact
sections 2303.24 and 2308.01 to 2308.05 of the
Revised Code to require courts to establish and
operate programs of mandatory foreclosure
mediation in non-tax foreclosure actions on
occupied residential properties and to establish
procedures for the operation of those foreclosure
mediation programs.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2303.201 and 2323.06 be amended and
sections 2303.24, 2308.01, 2308.02, 2308.03, 2308.04, and 2308.05
of the Revised Code be
enacted to read as follows:
Sec. 2303.201. (A)(1) The court of common pleas of any
county may determine that for the efficient operation of the
court
additional funds are required to computerize the court, to
make
available computerized legal research services, or to do
both.
Upon making a determination that additional funds are
required for
either or both of those purposes, the court shall
authorize and
direct the clerk of the court of common pleas to
charge one
additional fee, not to exceed three dollars, on the
filing of each
cause of action or appeal under divisions (A),
(Q), and (U) of
section 2303.20 of the Revised Code.
(2) All fees collected under division (A)(1) of this
section
shall be paid to the county treasurer. The treasurer
shall place
the funds from the fees in a separate fund to be
disbursed, upon
an order of the court, in an amount not greater
than the actual
cost to the court of procuring and maintaining
computerization of
the court, computerized legal research
services, or both.
(3) If the court determines that the funds in the fund
described in division (A)(2) of this section are more than
sufficient to satisfy the purpose for which the additional fee
described in division (A)(1) of this section was imposed, the
court may declare a surplus in the fund and expend those surplus
funds for other appropriate technological expenses of the court.
(B)(1) The court of common pleas of any county may
determine
that, for the efficient operation of the court,
additional funds
are required to computerize the office of the
clerk of the court
of common pleas and, upon that determination,
authorize and direct
the clerk of the court of common pleas to
charge an additional
fee, not to exceed ten dollars, on the
filing of each cause of
action or appeal, on the filing,
docketing, and endorsing of each
certificate of judgment, or on
the docketing and indexing of each
aid in execution or petition
to vacate, revive, or modify a
judgment under divisions (A), (P),
(Q), (T), and (U) of section
2303.20 of the Revised Code.
Subject to division (B)(2) of this
section, all moneys collected
under division (B)(1) of this
section shall be paid to the county
treasurer to be disbursed,
upon an order of the court of common
pleas and subject to
appropriation by the board of county
commissioners, in an amount
no greater than the actual cost to
the court of procuring and
maintaining computer systems for the
office of the clerk of the
court of common pleas.
(2) If the court of common pleas of a county makes the
determination described in division (B)(1) of this section, the
board of county commissioners of that county may issue one or
more
general obligation bonds for the purpose of procuring and
maintaining the computer systems for the office of the clerk of
the court of common pleas. In addition to the purposes stated in
division (B)(1) of this section for which the moneys collected
under that division may be expended, the moneys additionally may
be expended to pay debt charges on and financing costs related to
any general obligation bonds issued pursuant to division (B)(2)
of
this section as they become due. General obligation bonds
issued
pursuant to division (B)(2) of this section are Chapter
133.
securities.
(C)
The
court of common pleas shall collect the sum of
twenty-six dollars
as
additional filing fees in each
new civil
action
or proceeding
for
the charitable public purpose
of
providing
financial
assistance
to legal aid societies that
operate within
the state and to support the office of the state
public defender.
This
division does not apply to proceedings
concerning
annulments,
dissolutions of marriage, divorces, legal
separation,
spousal
support, marital property or separate property
distribution,
support, or other domestic relations matters; to a
juvenile
division of a court of common pleas; to a probate
division of a
court of common pleas, except that the additional
filing fees
shall apply to name change, guardianship, adoption,
and decedents' estate
proceedings; or to an execution on a
judgment, proceeding in aid
of execution, or other post-judgment
proceeding arising out of a
civil action. The filing fees required
to be collected under
this
division shall be in addition to any
other filing fees
imposed in
the action or proceeding and shall be
collected at the
time of the
filing of the action or proceeding.
The court shall
not waive the
payment of the additional filing
fees in a new
civil action or
proceeding unless the court waives
the advanced
payment of all
filing fees in the action or
proceeding. All such
moneys
collected during a month except for an
amount equal to up to one per cent of those moneys retained to
cover administrative costs shall be transmitted on or before the
twentieth day of the following month by the clerk of the court to
the
treasurer of state in a manner prescribed by the treasurer of
state or by the Ohio legal assistance foundation. The
treasurer of
state shall deposit four per cent of the funds collected under
this division to the credit of the civil case filing fee fund
established under section 120.07 of the Revised Code and
ninety-six per cent of the funds collected under this division to
the
credit of the legal aid fund established
under section 120.52
of
the Revised Code.
The court may retain up to one per cent of the moneys it
collects under this division to cover administrative costs,
including the hiring of any additional personnel necessary to
implement this division. If the court fails to transmit to the
treasurer of state the moneys the court collects under this
division in a manner prescribed by the treasurer of state or by
the Ohio legal assistance foundation, the court shall forfeit the
moneys the court retains under this division to cover
administrative costs, including the hiring of any additional
personnel necessary to implement this division, and shall transmit
to the treasurer of state all moneys collected under this
division, including the forfeited amount retained for
administrative costs, for deposit in the legal aid fund.
(D) On and after the thirtieth day after December 9, 1994,
the court of
common pleas shall collect the sum
of thirty-two
dollars as additional filing fees in each new
action or proceeding
for annulment, divorce, or dissolution of
marriage for the purpose
of funding shelters for victims of
domestic violence pursuant to
sections 3113.35 to 3113.39 of the
Revised Code. The filing fees
required to be collected under
this division shall be in addition
to any other filing fees
imposed in the action or proceeding and
shall be collected at the
time of the filing of the action or
proceeding. The court shall
not waive the payment of the
additional filing fees in a new
action or proceeding for
annulment, divorce, or dissolution of
marriage unless the court
waives the advanced payment of all
filing fees in the action or
proceeding. On or before the twentieth day of
each month, all
moneys collected during the immediately preceding month
pursuant
to this division
shall
be deposited by the clerk of the court into
the county treasury
in the special fund used for deposit of
additional marriage
license fees as described in section 3113.34
of the Revised Code.
Upon their deposit into the fund, the moneys
shall be retained
in the fund and expended only as described in
section 3113.34 of
the Revised Code.
(E)(1) The court of common pleas may determine that, for the
efficient operation of the court, additional funds are necessary
to acquire
and pay for special projects of the court, including,
but not limited to, the
acquisition of additional facilities or
the rehabilitation of existing
facilities, the acquisition of
equipment, the hiring and training of staff,
community service
programs, mediation or dispute resolution services, the
employment
of magistrates, the training and education of judges, acting
judges, and magistrates, and other related services. Upon that
determination,
the court by rule may charge a fee, in addition to
all other court costs, on
the filing of each criminal cause, civil
action or proceeding, or judgment by
confession.
If the court of common pleas offers a special program or
service in cases
of a specific type, the court by rule may assess
an additional charge in a
case of that type, over and above court
costs, to cover the special program or
service. The court shall
adjust the special assessment periodically, but not
retroactively,
so that the amount assessed in those cases does not exceed the
actual cost of providing the service or program.
All moneys collected under division (E) of this section shall
be
paid to the county treasurer for deposit into either a general
special
projects fund or a fund established for a specific special
project. Moneys
from a fund of that nature shall be disbursed
upon
an order of the court in an
amount no greater than the actual
cost
to the court of a project. If a
specific fund is terminated
because of the discontinuance of a program or
service established
under division (E) of this section, the court may
order that
moneys remaining in the fund be transferred to an account
established under this division for a similar purpose.
(2) As used in division (E) of this section:
(a)
"Criminal cause" means a charge alleging the violation
of
a
statute or ordinance, or subsection of a statute or
ordinance,
that requires a
separate finding of fact or a separate
plea before
disposition and of which
the defendant may be found
guilty,
whether filed as part of a multiple charge
on a single
summons,
citation, or complaint or as a separate charge on a
single
summons, citation, or complaint.
"Criminal cause" does not
include
separate violations of the same statute or ordinance, or
subsection of the
same statute or ordinance, unless each charge is
filed on a separate summons,
citation, or complaint.
(b)
"Civil action or proceeding" means any civil litigation
that
must be determined by judgment entry.
(F)(1) The court of common pleas shall establish by rule a
residential
foreclosure filing fee in an amount up to five
hundred dollars to charge to any
person who files a petition for
foreclosure on a residential
property, except as division (F)(3)
of this section otherwise provides. The fee shall be in addition
to any other filing fee or
court cost that otherwise applies to
the filing. The clerk of
courts shall pay all moneys collected as
a residential foreclosure
filing fee to the county treasurer for
deposit into a residential
foreclosure mediation fund the
treasurer establishes. Upon an order
of the court, the treasurer
shall disburse moneys from the fund to
reimburse the court for
any foreclosure mediation costs the court
incurs pursuant to
the
foreclosure mediation program it establishes pursuant to
section
2303.24 of the Revised Code. If the
amount collected as
residential foreclosure filing fees is more than
the amount
sufficient to satisfy the purpose for which the fee is
imposed,
the court may declare a surplus and expend the money for
other
costs related to residential foreclosure actions.
(2) The fee that a filing party pays pursuant to division
(F)(1) of this section is an expense that the filing party may
recover from the sale of the property or as part of a deficiency
judgment.
(3) The fee that division (F)(1) of this section establishes
does not apply to any foreclosure filing based on a lien for
delinquent taxes.
Sec. 2303.24. A court of common pleas shall establish a
program of mandatory mediation to be conducted by a
court-appointed mediator that shall apply to all foreclosure
actions on occupied residential structures, except for those
listed in division (B) of section 2308.02 of the Revised Code.
The foreclosure mediation program shall be consistent
with
sections 2308.02 to 2308.05 of the Revised Code.
Sec. 2308.01. As used in this chapter:
(A) "Occupied residential property" means real property with
a structure containing four or fewer residential units, or an
individually owned condominium unit, occupied by the owner of the
property
or a tenant of the owner;
(B) "Filing party" means the party who files an action for
foreclosure on a residential property. "Filing party" does not
include any person who files for a foreclosure action based on a
lien for delinquent taxes.
Sec. 2308.02. (A) Except as otherwise provided in division
(B) of this section and division (E) of section 2308.05 of the
Revised Code, no action for foreclosure on an occupied
residential property shall proceed unless the filing party and the
homeowner participate in foreclosure mediation pursuant to the
program the court establishes under this section and section
2303.24 of the Revised
Code.
(B) The mediation this section requires does not apply to any
of the following:
(1) A foreclosure filing that is based on a lien for
delinquent taxes;
(2) A foreclosure action on a property that is not an
occupied residential property;
(3) A foreclosure action in which the property owner does not
answer or otherwise respond to the summons and complaint within
twenty-eight days after its issuance.
(C) The court shall adopt rules that establish training
requirements for mediators that the court appoints under its
foreclosure mediation program. The rules shall comply with rule
sixteen of the rules of superintendence for the courts of Ohio,
and shall include all of the following as minimal requirements:
(1) Twelve hours of basic mediation training;
(2) Foreclosure mediation training approved by the supreme
court;
(3) Two hours of training on the provisions of Chapter 2710.
of the Revised Code.
(D) The court may appoint volunteer mediators or mediators
who require a fee to conduct the mediations in its foreclosure
mediation program, so long as the mediator meets the court's
training requirements. The court shall pay any costs of mediation
from the residential foreclosure mediation fund the county
treasurer establishes pursuant to division (F) of section 2303.201
of the Revised Code.
Sec. 2308.03. Along with the summons that the clerk of
courts issues when a foreclosure action is filed on a residential
property, except when the filing is based on a lien for delinquent
taxes, the clerk shall provide a written notice of the mediation
consistent with division (A) of this section and the information
described in division (B) of this section.
(A) The written notice the clerk provides shall include all
of the following:
(1) That the filing party and the owner of an occupied
residential property are required to participate in mediation with
a court-appointed mediator as a condition of the foreclosure
action proceeding;
(2) That the homeowner has twenty-eight days to answer or
otherwise
respond to the
summons and complaint, that in any
answer or
response the homeowner should assert whether
the
property is an occupied residential property, and that if the
homeowner does not answer or otherwise respond within twenty-eight
days after the
service of the summons and complaint, the
mediation will not be
held and the
filing party may seek a
default judgment;
(3) That upon receiving an answer or other response from the
homeowner, the
court will
schedule the mediation to be held
within
sixty days
and will
notify the filing party and the
homeowner of
the date,
time, and
place of the mediation
meeting;
(4) That all further proceedings will be stayed pending the
filing of the mediation report;
(5) That the homeowner may be accompanied and represented by
an attorney at the mediation;
(6) That at the discretion of the mediator, the first
mediation
meeting may be held by telephone.
(B) The information the clerk provides along with the summons
and complaint shall include information about programs that help
homeowners who face
foreclosure, including information on state
programs such as the
"save the dream program" and any local
programs organized by local
task forces or other entities.
Sec. 2308.04. (A) Upon receiving a homeowner's answer or
other response to
the
clerk's summons and complaint in a
residential foreclosure action, if the
property is an occupied
residential property, the court shall
appoint a mediator who is
qualified pursuant to section 2303.24 of
the Revised Code and
schedule a mediation meeting to be held
within sixty days after
receiving that homeowner's answer or other response. The clerk
shall
provide the filing party and the homeowner written notice
of that
meeting. The notice shall include the name of the
mediator and the
date, time, and place of the mediation meeting,
or information
with respect to establishing the date, time, and
place of the
meeting. The notice also shall include a statement
that the
homeowner has a right to be accompanied and represented
by an
attorney.
(B) If the homeowner does not answer or otherwise respond to
the summons and complaint in a
residential foreclosure action
within twenty-eight days after the
service of the summons, or if
the
property is not an occupied residential property, the
mediation
requirement established in section 2308.02 of the
Revised Code
does not apply and the filing party may proceed
pursuant to usual
procedures in the foreclosure action.
Sec. 2308.05. (A) A foreclosure mediation meeting shall
proceed according to Chapter 2710. of the Revised Code unless
otherwise provided.
(B) At the discretion of the mediator, the first mediation
meeting may be conducted by telephone. The mediation shall
continue for as many sessions as the mediator determines is
beneficial, at the discretion of the mediator.
(C) Upon
a
reasonable request of either party that certain
documents be
provided to
the mediator, or at the mediator's
discretion, a mediator may require a
party to
provide those
documents. The privileges and exceptions
pertaining
to mediation
communications that are contained in
Chapter 2710.
of the
Revised
Code apply to foreclosure
mediations.
(D) Any person who represents a party attending a mediation
meeting
may fully negotiate on behalf of that party in negotiating
a
compromise.
(E)
If the homeowner does not attend
a
scheduled mediation
meeting, the mediator immediately shall
report
this to the court
and the foreclosure shall proceed as if
the
mediation meeting
had been held. If the filing party does not
attend a mediation
meeting, the court shall, subject to a showing of good cause,
dismiss the foreclosure
action.
(F) A mediator shall prepare a written report of the
mediation and provide that report to the court within fourteen
days after the final mediation meeting. The mediator shall include
in that report the dates of all scheduled mediation meetings,
whether the mediation was successful in resolving the issue,
whether both parties attended scheduled mediation meetings and
participated in good faith, and any other information the mediator
considers appropriate. The court shall lift the stay on the
foreclosure proceedings upon the filing of the mediator's report.
(G) The clerk shall serve all parties with a copy of the
mediator's report.
(H) A homeowner who filed a response that is not
an answer
shall have twenty-eight days after the filing of the
mediator's
report to answer, or with leave of the court, to
otherwise
respond to the complaint.
Sec. 2323.06. In addition to the mediation that section
2308.02 of the Revised Code requires, in an action for the
foreclosure of a mortgage,
the court may at any stage in the
action require the mortgagor and
the mortgagee to participate in
mediation as the court considers
appropriate and may include a
stipulation that requires the
mortgagor and the mortgagee to
appear at the that mediation in person.
Section 2. That existing sections 2303.201 and 2323.06 of
the Revised Code are hereby repealed.
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