JPMorgan Chase Bank, NA v. Pellin , 2012 Ohio 1151 ( 2012 )

[Cite as JPMorgan Chase Bank, NA v. Pellin, 2012-Ohio-1151.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JPMORGAN CHASE BANK, N.A. ) CASE NO. 10 MA 179
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
VANESSA PELLIN, et al. )
)
DEFENDANTS-APPELLANTS )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 06 CV 300
JUDGMENT: Reversed.
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: March 16, 2012
[Cite as JPMorgan Chase Bank, NA v. Pellin, 2012-Ohio-1151.]
APPEARANCES:
For J.P.Morgan Chase Bank, N.A. Atty. Thomas R. Merry
Atty. James H. Cannon
Barren & Merry
110 Polaris Parkway, Suite 302
Westerville, Ohio 43082
For American Tax Funding: Atty. John N. Zomoida, Jr.
Anthony & Zomoida, LLC
Town One Square
40 S. Main Street
Poland, Ohio 44514
For State of Ohio, Dept. of Taxation: Atty. Michael DeWine
Attorney General of Ohio
Atty. Amy Kaufman
Assistant Ohio Attorney General
Collections Enforcement Section
150 E. Gay Street, 21st Floor
Cleveland, Ohio 43215
For Vanessa Pellin, Pellin Emergency Serv., Atty. Howard E. Mentzer
Inc. and R and V Leasing Corp.: Mentzer and Mygrant, Ltd
1 Cascade Plaza, Suite 1145
Akron, Ohio 44308
For Richard M. Pellin, Sr.: Atty. Michele L. McBride
Atty. Leonard D. Schiavone
Friedman & Rummell Co., L.P.A.
City Centre One, Suite 300
100 E. Federal Street
Youngstown, Ohio 44503
For United States of America: Atty. Kent W. Penhallurick
400 United States Courthouse
801 W. Superior Avenue
Cleveland, Ohio 44113
For Receiver: Atty. Jason Butterworth
Atty. Ronald N. Towne
Brennan, Manna & Diamond, LLC
75 E. Market Street
Akron, Ohio 44308
[Cite as JPMorgan Chase Bank, NA v. Pellin, 2012-Ohio-1151.]
For Med Corp., Inc.: Atty. J. Gerald Ingram
7330 Market Street
Youngstown, Ohio 44512
Atty. J. Jeffery Lowenstein
745 Medcorp. Drive
Toledo, Ohio 43608
For Vanessa Pellin: Vanessa Pellin, Pro se
10808 Akron-Canfield Road
Ellsworth, Ohio 44416
[Cite as JPMorgan Chase Bank, NA v. Pellin, 2012-Ohio-1151.]
WAITE, P.J.
{¶1} Appellant American Tax Funding LLC (“ATF”) appeals the judgment of
the Mahoning County Court of Common Pleas overruling a motion to intervene in a
foreclosure action. In the underlying case, JPMorgan Chase Bank, NA (“JPM
Chase”) commenced a foreclosure action on January 25, 2006, against property
located at 10808 Akron-Canfield Road in Mahoning County. ATF held delinquent tax
certificates on the property that it had purchased from the Mahoning County
Treasurer pursuant to R.C. 5721.33. JPM Chase did not name ATF as a party in the
foreclosure action. ATF filed a motion to intervene on April 19, 2006. The trial court
did not rule on the motion. On July 28, 2010, ATF refiled the motion. On September
15, 2010, a magistrate overruled the motion to intervene. On September 24, 2010,
AFT filed a motion to set aside the magistrate’s order. On November 9, 2010, the
trial court overruled the motion to set aside the magistrate’s order, and this appeal
followed. The trial court should have allowed ATF to intervene based on its interest
in the property arising from the delinquent tax certificates. The judgment of the trial
court is reversed.
{¶2} No Appellee’s brief has been filed in this appeal. Under App.R. 18(C),
the failure of Appellee to file a brief allows us to “accept the appellant's statement of
the facts and issues as correct and reverse the judgment if appellant's brief
reasonably appears to sustain such action.”
-2-
ASSIGNMENT OF ERROR
{¶3} The trial court erred by denying American Tax
Funding, LLC’s Motion to Intervene.
{¶4} We note at the outset that a denial of a motion to intervene is a final
appealable order. Likover v. Cleveland, 60 Ohio App.2d 154, 155, 396 N.E.2d 491(1978); Fairview Gen. Hosp. v. Fletcher, 69 Ohio App.3d 827, 591 N.E.2d 1312(1990).
{¶5} Civ.R. 24 governs the circumstances and procedure for a person to
intervene in a civil action. A party may intervene as a matter of right if it has “an
interest relating to the property or transaction that is the subject of the action”. Civ.R.
24(A)(2). The rule is to be liberally construed in favor of intervention. State ex rel.
Watkins v. Eighth Dist. Court of Appeals, 82 Ohio St.3d 532, 534, 696 N.E.2d 1079(1998). Requests to intervene are reviewed under Civ.R. 24 for abuse of discretion.
State ex rel. Cardinal Joint Fire Dist. v. Canfield Twp., 7th Dist. No. 03 MA 67, 2004-
Ohio-5526, ¶29. In order to find an abuse of discretion, the appellate court must
determine that the trial court's decision was unreasonable, arbitrary or
unconscionable and not merely an error of judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶6} A lienholder generally has a right to intervene in a foreclosure action.
Rokakis v. Martin, 180 Ohio App.3d 696, 2009-Ohio-369, 906 N.E.2d 1200 (8th
Dist.); McKesson Medical-Surgical Minnesota, Inc. v. Medico Med. Equip. & Supplies,
8th Dist. No. 84912, 2005-Ohio-2325; Sharp v. Kuhn, 12th Dist. No. 78 CA 10, 1978
-3-
WL 216347 (Oct. 4, 1978). In this particular case, Appellant became a lienholder by
purchasing delinquent tax certificates. A county treasurer is permitted to sell
delinquent tax certificates under the rules set forth in R.C. 5721.30 to 5721.43.
Almost anyone, except for the landowner owing the delinquent tax, may purchase the
tax certificates. R.C. 5721.32(J); 5721.33(E)(3). The sale of the tax certificate also
transfers a tax lien: “the superior lien of the state and its taxing districts for those
taxes, assessments, penalties, and interest is conveyed intact to the certificate
holder.” 87 Ohio Jurisprudence 3d, Taxation, Section 700, at 172 (2000); see also
R.C 5721.35(A). Thus, an owner of delinquent tax certificates, as the superior
lienholder, has a right to intervene in a foreclosure action. Because Appellant could
intervene as a matter of right in the foreclosure action, it was an abuse of discretion
to overrule the motion to intervene. There are no arguments on appeal opposing
Appellant’s assignment of error and the record establishes the validity of the
argument. Therefore, the assignment of error is sustained and the judgment of the
trial court is reversed.
Donofrio, J., concurs.
Vukovich, J., concurs.