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RULES OF PRACTICE AND PROCEDURE

of the
COURT OF COMMON PLEAS
GENERAL DIVISION

of
SUMMIT COUNTY, OHIO


11. FORECLOSURES

Misc. No. 325

DUE TO THE DRAMATIC INCREASE OF FORECLOSURE ACTIONS FILED AND THE NUMBER OF CLAIMS FILED BY PARTIES OTHER THAN THE ORIGINAL MORTGAGEE AND NOTE HOLDER, THE JUDGES OF THE COMMON PLEAS COURT - GENERAL DIVISION HAVE DETERMINED THAT WHEN A FORECLOSURE CASE IS FILED THE USE OF A CERTIFICATE OF READINESS IS NECESSARY TO ALLOW THAT SUBSTANTIAL JUSTICE BE DONE AND TO ENSURE JUDICIAL EFFICIENCY. CURRENT CIRCUMSTANCES ALSO REQUIRE A MODIFICATION OF THE TIME IN WHICH TO FILE THE PRELIMINARY JUDICIAL REPORT, SHORTENING THE TIME TO FILE SUCH PRELIMINARY JUDICIAL REPORT FROM SIXTY DAYS AFTER FILING THE COMPLAINT TO CONTEMPORANEOUS WITH THE FILING OF PLAINTIFF'S COMPLAINT.

IT IS HEREBY ORDERED, PURSUANT TO CIVIL RULE 53, THAT ALL FORECLOSURE CASES THE COURT CONSIDERS APPROPRIATE FOR MEDIATION BY THE COURT'S MEDIATION DEPARTMENT SHALL BE GIVEN A LIMITED ORDER OF REFERENCE TO THE GENERAL DIVISION MAGISTRATE.

SUCH ORDER OF REFERENCE SHALL COMMENCE UPON THE FILING OF THE REFERRAL ORDER TO MEDIATION BY THE COURT, AND TERMINATE UPON COMPLETION OF THE INITIAL SETTLEMENT CONFERENCE WITH THE FORECLOSURE SPECIALIST AND, IF APPROPRIATE, TRANSFER OF THE CASE TO THE MEDIATION DEPARTMENT FOR SCHEDULING OF A FULL MEDIATION, OR A RETURN OF THE CASE TO THE COURT IF NOT SENT TO MEDIATION. THE MAGISTRATE SHALL UNDERTAKE ALL ACTIONS NECESSARY TO ADDRESS ALL ISSUES RELATED TO THE TIME FRAME SET OUT ABOVE.

11.01 – TITLE EVIDENCE; PRELIMINARY JUDICIAL REPORT

In actions for the marshaling and foreclosure of liens on real property or partition of real estate, a Preliminary Judicial Report or a Title Commitment as authorized by R.C. 2329.191(C) shall be filed with the Clerk of Courts by the attorney for the plaintiff at the time of the filing of the complaint. This shall serve as evidence of the state of the record title of the real property in question. Said report may be prepared by an attorney or a competent abstractor or title company. A copy, certified by the attorney or a photographic copy of the original evidence of title, may be filed with the Clerk of Courts in lieu of the original, and shall become and remain a part of the case file. Along with the filing of the Preliminary Judicial Report or a Title Commitment, the attorney shall file a Certificate of Readiness and any required supporting documentation, demonstrating that plaintiff is the real party in interest and the matter is ready to proceed against all necessary parties. This shall be signed by the attorney. The complaint, the Preliminary Judicial Report and the Certificate of Readiness shall be filed as separate documents at the same time and shall be separately time-stamped with the complaint being filed first.

11.02 – FAILURE TO PROVIDE EVIDENCE

If a Preliminary Judicial Report and the Certificate of Readiness, along with all supporting documentation, are not presented to be filed at the time of the filing of the complaint, the Clerk of Courts shall not accept such complaint for filing.

11.03(1)– FINAL JUDICIAL REPORT

(A) The Final Judicial Report must include the correct legal description, parcel, and routing numbers for such property taken from the property deed as approved and released by the County Fiscal Officer’s Property Deed Transfer Divisi

(B) Three (3) copies of the Property Description Approval form and the approved legal description shall be filed and time-stamped with the Clerk of Courts and shall be attached to the filing of the Final Judgment Entry in the foreclosure case. The Clerk of Courts will attach one copy of the Final Judicial Report and return the two (2) copies to the party filing the Final Judicial Report which shall then be attached to the Praecipe.

(C) A Final Judicial Report shall be issued and filed with the Clerk of Courts before the Decree of Foreclosure or Decree of Partition is filed. Said report shall state the method of service on each of the parties and shall include a statement indicating whether any additional liens or mortgages have been filed since the date the Preliminary Judicial Report was issued.

11.03(2) PROPERTY DESCRIPTION APPROVAL FORM

The prescribed Property Description Approval form adopted by the Courts will be made available on the Fiscal Officer’s website, Sheriff’s website, and Office of Deed Transfer.

11.04 EXPENSES FOR TITLE EVIDENCE

Expenses of the title work required under this Rule shall include a base search fee not to exceed Two Hundred Dollars ($200), plus a premium on the Judicial Report issued, based on the fair market value of the property or in the case of a foreclosure, the balance due on the first mortgage or such additional amount as may be allowed by the Court for each property involved. Said cost shall be taxed as part of the costs in said case. No action commenced pursuant to this Rule shall be dismissed without first having paid the Judicial Title costs allowable under this Rule.

11.05 – FISCAL OFFICER AS PARTY DEFENDANT

In all foreclosure actions it shall not be necessary to name the Summit County Fiscal Officer as a party unless a party is contesting the amount of real estate taxes or the Fiscal Officer holds a personal property tax lien on the premises. In all actions in which the Fiscal Officer has been named a party, and in which the taxes are not in dispute nor is there a personal property tax lien, the Fiscal Officer need not file an answer to the complaint or to any cross-claims, but shall be served with a copy of the Confirmation of Sale or the dismissal entry.

11.06 – NOTIFICATION OF SHERIFF’S SALE

The judgment creditor who has requested that an Order of Sale be issued, shall no later than two (2) weeks prior to the sale scheduled thereon, serve written notice in accordance with Civ.R. 5 upon the judgment debtor and upon each other party to the action in which the judgment giving rise to the execution was rendered.

Written notice shall include a photocopy of the advertisement of Sheriff’s Sale and all information required by R.C. 2329.26. At least seven (7) calendar days prior to the date of the sale, the judgment creditor shall file with the Clerk of Courts a copy of such written notice with proof of service endorsed thereon.

The Sheriff’s Office will, upon receipt, file the Proof of Publication, or a copy if a correction/cancellation was made to the Advertisement, with the Clerk of Courts.

11.07 – APPRAISERS’ FEES

In all actions in which the Summit County Sheriff is called upon to appoint appraisers to appraise real property for the purpose of conducting a judicial sale, the appraisal fees shall be taxed as costs in the action, and each appraiser so appointed shall be compensated and receive fees based upon the Summit County Fiscal Officer, Auditor’s Division, last tax appraisal of the property as shown by the appraisal records.

If residential property, the appraisers shall return the appraisal to the Sheriff within twenty-one (21) calendar days of the issuance of the Order of Appraisal by the Clerk of Courts. R.C. 2329.17(B).

If commercial property, the appraisers shall return the appraisal to the Sheriff within the timing requirements, as established for the sale of the commercial property. R.C. 2329.17(D). If no timing requirements have been established, then the timing as used for residential property appraisals shall apply.

APPRAISERS' FEES
Up to $5,000 tax value $25.00 each appraiser
$5,000 to $25,000 tax value $35.00 each appraiser
$25,000 to $50,000 tax value $50.00 each appraiser
Over $50,000 $50.00 each appraiser plus $1.00 for each $1,000 or fraction thereof of tax valuation in excess of $50,000

11.08 – PAYMENT OF REAL ESTATE TAXES

(A) PRORATED TAXES

  1. The Lien for Taxes and Assessments that attaches before the date of the sale, but that are not yet determined, assessed, and levied for the year in which the sale occurs, will be apportioned as PRO RATA to the part of that year that precedes the date of sale, including any penalties and interest on those taxes and assessments. R.C. 323.47(B)(1)(a).
    1. Summit County Fiscal Office will provide to the Sheriff the Prorated Tax Amount
    2. Prorated Taxes will be as of the Date of Sale
  2. Prorated Taxes will be paid out of the Proceeds of the Sale
    1. If, the Judgment Creditor is the BUYER at the sale, then Prorated Taxes shall not be deducted from the proceeds of the sale, unless such deduction is approved by that Judgment Creditor/BUYER.

(B) TAXES ON TAX DUPLICATE (Delinquents, Liens & Currents)

  1. The Lien for ALL other Taxes, Assessments, Penalties and Interest that are already attached for a prior tax year, but that have not been paid on or before the date of the Sale, will be included and listed on the Sheriff’s website, as provided by the Fiscal Office.
    1. Summit County Fiscal Office will provide to the Sheriff the amount of Taxes as listed on the Current Tax Duplicate; this is for any Delinquent Taxes, Tax Liens, and Current Taxes not yet paid.
  2. Payment of taxes is to be made at the Summit County Fiscal Office directly but Tax Verification worksheets and tax verification forms are no longer being used on all non-tax foreclosures. A receipt will be issued and a copy must be taken to the Sheriff’s office. Taxes will be paid out of the Proceeds of the Sale.

NOTE: Both Tax Amounts (Prorated and Delinquent/Currents) can be found on the Sheriff’s website at www.co.summit.oh.us/sheriff. These amounts are provided to the Summit County Sheriff from the Fiscal Office and will be posted on the Sheriff’s website within one (1) week prior to the sale.

The purchaser shall be responsible for those costs, allowances and taxes that the proceeds of the sale are insufficient to cover. R.C. 2329.52(B).

11.09 – FORECLOSURE ORDER OF SALE PUBLICATION DEPOSIT

(The General Division Judges have determined that it is in the best interest of Summit County to increase the filing fee for the Order of Sale Publication deposit to Six Hundred Twenty and no/100 Dollars ($620.00) effective October 1, 2007. Commencing on October 1, 2007, the funds will be utilized for the purpose of foreclosure case management enhancement.

The revenue funds shall be disbursed as follows:

REVENUE DISBURSEMENT
Akron Legal News $220
Summit County Sheriff -Sheriff Foreclosure Fee Account $200
Clerk of Courts -Computerization Account $100
General Division Special Projects Revenue Fund Account $100

11.10 – SERVICE OF IN-COUNTY FORECLOSURE COMPLAINTS BY THE SUMMIT COUNTY SHERIFF AND/OR HIS DEPUTIES – EXCLUDING TAX FORECLOSURE COMPLAINTS

(A) All civil foreclosure complaints (EXCLUDING TAX FORECLOSURE COMPLAINTS) filed with the Summit County Clerk of Courts shall only be served upon party defendants, including any Unknown Defendants who are listed in the complaint in accordance with Civ.R. 15(D), who reside within Summit County by the Summit County Sheriff and/or his designated Deputies. All party defendants who reside outside of Summit County, Ohio shall have service made in accordance with Civ.R. 4.1 and those related Rules which are applicable. If service is not able to be made by the Sheriff under this Rule, the plaintiff may then avail itself of service by publication and/or by other methods of service as previously set out. If the Sheriff was unable to serve any Unknown Defendants under this Rule and the plaintiff has determined that the Unknown Defendant is a necessary party, plaintiff shall proceed to serve the Unknown Defendant in accordance with Civ.R. 4.4(A) and R.C. 2703.24.

(B) Such service shall be made by the Summit County Sheriff and/or his designated Deputies assigned to the Summit County Sheriff.

(C) The Summit County Clerk of Courts for the Summit County Common Pleas Court General Division shall, upon the filing of all foreclosure actions, transmit all necessary documents and paperwork promptly to the Summit County Sheriff’s Civil Division so that the Sheriff and/or his designated Deputies can commence service of such foreclosure complaints on those defendants who have listed their residential or business address as shown to be within Summit County, Ohio.

(D) The Summit County Sheriff and/or his designated Deputies shall make at least three (3) attempts of service upon each of the designated defendants within the complaint who reside within Summit County, Ohio. Additionally, the Sheriff shall leave door hangers with information as to how to contact the Sheriff regarding such matters should personal service fail at the designated location prescribed for service. The Sheriff and/or his designated Deputies shall make a written return after each attempt of service and of said service when it is made. Such return shall be sufficiently detailed for purposes of the Sheriff to maintain necessary administrative information regarding his duties, and also for the Summit County Clerk of Courts to maintain appropriate records required by law. All said returns shall be made promptly by the Summit County Sheriff and/or his designated Deputies to the Summit County Clerk of Courts.

(E) The Summit County Clerk of Courts may purchase electronic service equipment for use by the Summit County Sheriff and/or his designated Deputies when making service. Such electronic service equipment shall be capable of receiving and storing signatures for service of complaints or summons. The Summit County Sheriff and/or his designated Deputies shall initiate the use and training of such electronic service equipment as soon as practicable in cooperation with the Summit County Clerk of Courts. The Summit County Clerk of Courts and the Summit County Sheriff shall maintain close coordination to ensure the accuracy of all recorded information received and stored by the electronic service equipment.

(F) The Summit County Common Pleas Court General Division and the Summit County Clerk of Courts shall, by separate written agreement, provide for the cost of maintaining, repairing and/or replacing electronic equipment.

11.11 – ORDERS TO WITHDRAW/CANCEL SALE

A Motion and Order to Withdraw/Cancel a Sheriff’s Sale must be filed at least forty-eight (48) hours prior to the scheduled Sheriff’s Sale. For Mortgage Sales held on Fridays, the Motion to Withdraw/Cancel must be filed no later than 10:00 a.m. on the Wednesday prior to the sale. For Delinquent Tax Sales held on Tuesdays, the Motion to Withdraw/Cancel must be filed by 10:00 a.m. on the Friday prior to sale. If the Motion to Withdraw/Cancel is not timely filed, the sale will proceed as scheduled. This rule does not apply in the case of payment in full or the filing of a bankruptcy.

 

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