Special Considerations Required to Protect Lienholder Interests in Ohio Expedited Foreclosure Matters

By: Chrissy M. Dunn

Recently, there has been an uptick in demolitions of dilapidated and abandoned residential properties in Ohio, which are primarily acquired by community land banks through expedited tax foreclosure matters.  Lienholders should be aware of special considerations needed to protect their interests in expedited tax foreclosure matters authorized by Ohio law.

Summary of the Ohio Expedited Foreclosure Statute

Ohio Revised Code Sections 323.65 to 323.79 (“Ohio Expedited Tax Foreclosure Statute”) allow counties to expeditiously prosecute tax foreclosure actions against abandoned or vacant properties.  Expedited foreclosure proceedings are intended to help communities recover from the foreclosure crisis by facilitating the return of vacant, abandoned, and tax foreclosed properties to productive economic use, more quickly than they would be in traditional tax foreclosure actions through direct transfer to a county land bank without a foreclosure sale. The statutory procedure allows for quick disposal of abandoned properties which are dilapidated, run down, neglected, environmentally hazardous, and/or dangerous, by turning them over to a political subdivision, land reutilization corporation, school district, or eligible community development organization for demolition or rehabilitation purposes. Donations of these properties to land reutilization corporations, known as community land banks, appear to be on the rise in Ohio.  

Banks and HOAs may actually favor these expedited procedures, as shorter timelines free up the backlog of court cases and help resell homes more quickly. Nonetheless, due to the quick pace in these cases, it is especially important that lienholders served with a Complaint in an expedited tax foreclosure act promptly to protect their interests.

Expedited foreclosure actions may be prosecuted in civil courts or the Ohio “Board of Revision” (“BOR”). To qualify as an expedited foreclosure case under the statute, the subject property must be abandoned, unoccupied, and certified as tax delinquent for a year or more.  If even one of these requirements is not met, the BOR loses jurisdiction over the case, and the Ohio Expedited Tax Foreclosure Statute does not apply.    

The Ohio Expedited Tax Foreclosure Statute provides that if “Impositions (delinquent taxes, assessments, penalties, interest, costs, reasonable attorney’s fees of a certificate holder, applicable and permissible costs of the prosecuting attorney of a county, and other permissible charges against abandoned land) exceed the auditor’s assessed value of the property in an expedited foreclosure proceeding, it may be transferred without a foreclosure sale.  The statute on its face appears to require that a property be taken to foreclosure sale after the entry of a decree of foreclosure, only if the Impositions do not exceed the auditor’s assessed value of the property; however, some Ohio prosecutors take the position that O.R.C. § 323.78 allows the BOR to transfer any abandoned, qualifying property directly to an applicable community organization, without a sale.

Responding to an Expedited Tax Foreclosure Matter

The easiest resolution for a case in which the lienholder believes the property has equity and wants to prevent the immediate transfer of the property without a sale, is to pay the taxes for the parcel to have the case dismissed, so that a lienholder may file its own foreclosure. This will not likely be a desirable option in most expedited foreclosure matters (due to the jurisdictional requirements in these cases, they are likely blighted properties).

O.R.C. § 323.72(A)(2) provides that at any time before confirmation of sale or transfer of abandoned land or before the expiration of the alternative redemption period, a lienholder or another person having a security interest of record in the abandoned land may plead that in order to preserve the lienholder’s or other person’s security interest of record in the land, the complaint should be dismissed and the abandoned land should be removed from the abandoned land list and not disposed of as provided in sections 323.65 to 323.79 of the Ohio Expedited Tax Foreclosure Statute. The BOR may approve such a request without a hearing.  

If the board approves the request without a hearing, the board shall file the decision with the clerk of court, and the clerk shall send a notice of the decision to the lienholder or other person by ordinary mail.

BOR Hearings

If a lienholder does not wish to pay the taxes in an expedited foreclosure action, it may answer the complaint and seek that the property be taken to a sheriff’s sale. A lienholder may file with the county BOR a good faith appraisal of the parcel from a licensed professional appraiser, and request a hearing to determine whether the Impositions against the parcel of abandoned land exceed or do not exceed the fair market value of that parcel as shown by the auditor’s then-current valuation of that parcel. The lienholder may present evidence of the property value at the hearing. The request for this hearing must be filed not later than seven days before a final hearing on a complaint.  

The only questions to be considered at the hearing are the amount and validity of all or a portion of the Impositions, whether those Impositions have in fact been paid in full, and, under division (A)(1) of the section, whether valid issues pertaining to service of process and the parcel’s status as abandoned land have been raised. 

At the hearing, the BOR shall make a factual finding as to whether the Impositions against the parcel exceed or do not exceed the fair market value of that parcel as shown by the auditor’s then-current valuation of that parcel.  An owner or lienholder must show by a preponderance of the evidence that the Impositions against the parcel do not exceed the auditor’s then-current valuation of the parcel in order to preclude direct transfer without a sale. 

The auditor’s valuation may serve as evidence of the property value, but may be rebutted.

At the conclusion of the final hearing at which a final decree of foreclosure is entered in an expedited foreclosure proceeding, the property may be transferred without a sheriff’s sale unless the Impositions are paid within 45-days of journalization of the entry of final foreclosure.  After the 45-day redemption period expires, the right and equity of redemption of any owner or party terminates without further order of the court or BOR.  

Lienholders should keep these considerations in mind if a property has equity which the lienholder would like to protect, and should retain counsel quickly to protect their interests.

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