I) Frequently Asked Questions by Self-Represented Litigants
In Cuyahoga County, a magistrate acts in place of the judge for most matters related to foreclosure, quiet title, and partition cases. Rulings of a magistrate are subject to review by the judge assigned to the case. If you believe that a magistrate's decision is improper, an objection to the magistrate’s decision must be filed within 14 days of the date that the decision was issued. If objections are not filed, the judge may adopt the decision of the magistrate. The magistrate’s decision becomes a court order when adopted by the judge.
In addition, magistrates may issue magistrate’s orders without judicial approval and with immediate effect to regulate the proceedings. If you believe that a magistrate's order is improper, a motion to set aside the magistrate’s order must be filed within 10 days of the date that the order was issued.
See the civil rules governing objections and motions to set aside magistrate orders - Civ.R. 53(D)(2) & (3). This is a link to the Ohio Rules of Civil Procedure.
The summons and complaint are sent to notify you of the plaintiff’s claims and of what remedy the plaintiff seeks from the court. In a foreclosure case, the plaintiff typically claims that you owe it a sum of money, that this debt is secured by a mortgage on your property, and that it would like the property sold to satisfy the debt. A written answer must be filed with the Clerk of Courts within 28 days from the date you receive the summons. If you do not file a written answer denying the allegations in the complaint within the 28 days, the court may find that the allegations of the complaint are true and may, upon filing of a motion for default judgment, grant the relief requested in the complaint.
You may seek leave to file a late answer by filing a motion for leave to file an answer. Whether you are granted leave to file a late answer is in sole discretion of the judge.
If you are interested in resolving the dispute between you and your lender, you may also request a temporary stay of the case to resolve the case with the lender. You may do so orally at a hearing or with a written motion to stay for the purpose of seeking a resolution with plaintiff.
I have received a notice indicating that a default hearing is set before a magistrate, what will happen at this hearing?
A default hearing is set when the party seeking foreclosure files a motion for default judgment. The motion is filed when at least one party to the case has not filed a timely answer. At the hearing, the magistrate will explain the foreclosure process. If the party seeking the foreclosure has made the proper allegations and has provided all necessary supporting evidence, the magistrate may issue a decision allowing foreclosure.
If you have a conflict with the hearing date and time, you may request that the hearing be continued by filing a motion to continue. (Also, upon a written request, some magistrates’ may consider allowing a person to appear by telephone.) Whether the hearing is continued is in sole discretion of the magistrate.
No one but the party seeking the foreclosure must attend the hearing. Nevertheless, it may be beneficial for the property owner to attend. The property owner will receive an explanation of the foreclosure process and will be afforded an opportunity to request leave to file an answer or to have the case referred to mediation.
Yes. Despite the filing of a foreclosure case, the titled owner of the property before the filing of the case remains the owner until the sale of the property is confirmed and a deed is issued to the new owner. The titled owner during the period before confirmation of sale has all of the rights and liabilities associated with property ownership. Thus, for example, failure to maintain a property may result in criminal housing code violations against the titled owner, even after the foreclosure case has been filed.
Despite a Chapter 7 bankruptcy filing, a bankruptcy discharge, or "abandonment" of the property to the bankruptcy trustee, the titled owner of the property before the filing of the Chapter 7 bankruptcy, bankruptcy discharge, or abandonment of the property to the trustee remains the owner, unless the property is sold by the trustee as part of the bankruptcy proceedings. The titled owner has all of the rights and liabilities associated with property ownership. Thus, for example, failure to maintain a property may result in criminal housing code violations against the titled owner, even after a bankruptcy discharge or abandonment of the property to the bankruptcy trustee.
Once the magistrate issues a decree of foreclosure and the judge adopts the decree, the party awarded the decree of foreclosure may order the property sold. The party awarded the decree of foreclosure may choose to have the property sold by the sheriff or a private selling officer. When the party awarded the decree of foreclosure orders the property sold, the sale will be set on the sheriff’s or private selling officer’s sale calendar, the property will be appraised, and the sale will be advertised. The sale will occur approximately three months following the issuance of the magistrate’s decision.
Yes. You may redeem your property after sheriff’s sale by paying in full all of the liens on the property and all of the costs of the case up to eight days after the date of sale.
The Magistrates Department has sample motions to redeem.
To complete a redemption, a motion to redeem must be filed. All of the lien holders must be contacted for payoff amounts, the Sheriff’s Department and/or private selling officers and the Clerk of Courts must be contacted to determine the costs of the case, and a journal entry must be prepared ordering the redemption and ordering the distribution of the funds to the various parties. The amount of sheriff’s costs may be obtained by calling 216-443-5585. Clerk’s costs may be obtained by calling 216-443-7982.
The purchaser must be paid interest on his or her deposit at the rate of 8% per annum. The Clerk of Courts must be paid poundage at the rate of 2% of the first $10,000.00 of the total redemption amount and at the rate of 1% for the remainder of the total redemption amount.
When the necessary information has been obtained and the necessary documents prepared, the documents must be filed with the Clerk of Courts and submitted to the magistrate assigned to your case. After the magistrate has approved the submitted documents, a certified check in the verified redemption amount must be submitted to the Clerk of Courts. Once the magistrate confirms that the check is for the proper amount, the judge will sign the order of redemption. After, the judge signs the redemption entry, the check and a certified copy of the entry must be taken to the cashier’s window in the Clerk of Courts’ office to complete the redemption.
As you may have determined from this brief summary of the redemption process, it is a very complicated procedure involving numerous calculations. You are strongly advised to seek the assistance of a lawyer for your redemption.
The redemption process may take longer than the eight days granted by law. While you do not have an absolute right to additional time to redeem, you may seek additional time to redeem by filing a motion to stay confirmation. Whether you are granted additional time to redeem is in the sole discretion of the judge assigned to the case.
As part of the decree of foreclosure, the purchaser at the judicial sale is awarded a "writ of possession.” This allows the purchaser to evict the former owners of the home without the need to file a separate eviction case. The purchaser must notify the Sheriff’s Department that he or she desires to have the previous owner evicted. At this point a representative of the Sheriff’s Department will notify the previous owners of the house in question of the date by which they must vacate the premises, usually within 30 days of notification.
If the property owner needs more time to move, the property owner may file a motion for extension of eviction date. Whether you are granted an extension of time is in sole discretion of the judge.
Once the plaintiff and any other parties who have claimed a lien on the property have been paid out of the sale proceeds, the party who owned the property at the time of sale is entitled to any remaining funds. In order to receive these funds, the owner of the property at the time of sale must file a motion to distribute balance of funds with the Clerk of Courts. If the property owner has died, the heirs of the property owner may be entitled to the funds. To obtain these funds, the heirs must file a motion of heir of property owner to intervene to receive funds of sale in addition to a motion to distribute balance of funds.
A partition case is an action by which a co-owner requests division of property. In most cases physical division of the property is not possible. In such cases, the property will be sold at sheriff’s auction and the proceeds divided among the owners in proportion to their respective interest in the property.
Partition Related Links: Partition Action Flow Chart, Partition Stipulation Form
A quiet title case is filed against a person who claims an interest in property that is allegedly invalid and is adverse to the property owner. Examples of such interests include encroachments by fences or buildings and unreleased but paid mortgages or judgment liens. If the party seeking to quiet title proves that the interest is invalid, the court will declare the interest null and void.
II) Questions Frequently Asked by Judicial Sale Purchasers/Sheriff's Sales
Sheriff’s sales are public auctions resulting from court orders where property is sold to the highest bidder.
The sales are conducted in the Justice Center Auditorium on the first floor of the Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113. The sales take place every Monday at 8:30 a.m. unless Monday is a holiday in which case the sale will be conducted on Tuesday at 8:30 a.m.
Yes. The minimum bid is an amount equal to 2/3 of the appraised value of the property, except in sales that result from real estate tax cases. In real estate tax cases, the minimum bid is equal to the taxes owed and court costs.
In residential mortgage foreclosures, if the property is not sold in a first sale for want of bidders, a second sale of the property will be held with no minimum bid.
In residential foreclosures, deposit requirements are set by R.C. 2329.211(A)(1)-(3) and vary depending on the appraised value of the property. If the judgment creditor is the purchaser as the sheriff’s sale, the purchaser will not be required to make a deposit.
In commercial foreclosures, the sheriff will require the purchaser to make a 10% deposit or $10,000, whichever is less, on the day of the sale.
In both residential and commercial foreclosures, the purchaser must pay the full amount of the bid within 30 days of the date of the confirmation of the sale.
If the purchaser fails to pay the full amount of the bid within thirty days from the date of confirmation of the sale, the purchaser will be held in contempt of court and the purchaser’s deposit may be forfeited.
In addition, if the purchaser fails to pay in full within eight days of the sheriff’s sale, interest will be charged on the balance at the rate of 10% per annum from the date of sale to the date the balance is paid.
If the sheriff sale purchaser needs more time to pay, this purchaser may file a motion for extension of time to pay balance of purchase price.
If the court stays the confirmation of the sale, the purchaser is not required to abide by the initial payment schedule as detailed above. Rather, the day the stay is lifted is treated as the day of sale for the purposes of the payment schedule. Accordingly, the purchaser may pay the balance of the purchase price within eight days of the lifting of the stay to avoid paying interest and must pay the balance of the purchase price within 30 days of the lifting of the stay or face contempt charges.
The Sheriff accepts as payment only by cash, by bank money order or by certified check.
A list properties scheduled for sheriff sale is published in the Daily Legal News newspaper. A list may be obtained at the Civil Division of the Sheriff’s Department, Justice Center, 2nd Floor, 1200 Ontario St, Cleveland, Ohio 44113 at the cost of $.25 per page. You may also obtain a listing online through the Sheriff's Website.
III) Questions Frequently Asked by Judicial Sale Purchasers/Private Selling Officer Sales
R.C. 2329.152 permits private selling officers to sell property in foreclosure cases in place of the sheriff. The private selling officer must be a resident of Ohio licensed both as an auctioneer under R.C. Chapter 4707 and as a real estate broker or salesperson under R.C. Chapter 4735.
Private selling officers have wider latitude than the sheriff in advertising and otherwise marketing property in foreclosure sales. They may also hire title professionals and others to assist them with the mechanics of the sale and the issuance of a deed.
The private selling officer sale may be online or at a physical location, as detailed in the sale notice. There is no specific day of the week that a private selling officer sale must be conducted. The sale notice will also provide the day and time of the sale.
If the sale is held online, the private selling officer will require that persons seeking to bid register online with the website as a condition of being authorized to bid. The private selling officer’s sale notice or website should detail the registration procedure.
Yes. The minimum bid is an amount equal to 2/3 of the appraised value of the property.
In residential foreclosures, deposit requirements are set by R.C. 2329.211(A)(1)-(3) and vary depending on the appraised value of the property. If the judgment creditor is the purchaser as the private selling officer sale, the purchaser will not be required to make a deposit. The timing of the deposit is established by the private selling officer. The private selling officer’s sale notice or website should detail the timing of deposits.
In commercial foreclosures, deposit requirements are established by the private selling officer. The private selling officer’s sale notice or website should detail the deposit requirements in such sales.
The full amount of the bid must be paid within 30 days of the date of the private selling officer sale. If the purchaser fails to pay the full amount of the bid within thirty days from the date of sale, the purchaser will be held in contempt of court and may forfeit the purchaser’s deposit and be forced to pay a fine.
The private selling officer will determine what forms of payment are acceptable. The acceptable forms of payment should be detailed on the private selling officer’s sale notice or website.
A list properties scheduled for private selling officer sale should be available on the private selling officer’s website. An internet search for “private selling officer Ohio” will yield a list of private selling officers operating in Ohio.
IV) Frequently Asked Questions by Attorneys
If I file a foreclosure, quiet title, or partition case, what are some of the differences from a standard civil case?
The principal difference at the outset is the necessity to file (with the complaint) guaranteed evidence of the state of the record title of the property. This document is referred to as a preliminary judicial report and will reflect the name of the record owner, a legal description of the parcel of land, and a listing of all interests in the property that appear of record. All parties with an interest in the property are necessary parties to the foreclosure case and must be named in the complaint. The court requires the preliminary judicial report to be in the format of the Ohio Title Insurance Ratings Bureau 2010 Preliminary Judicial Report and be accompanied by an Ohio Title Insurance Ratings Bureau 2010 Extended Coverage Endorsement. The title company you select should be familiar with these forms.
The case may be dismissed without notice for such failure pursuant to Loc.R.24(C).
Case files are created and initially stored in the Clerk's Office, Civil Division, located on the first floor of the Justice Center, north east corner. This area is also referred to as "Pending Files." Shortly after filing, the files are transferred to the Clerk’s Office on the sixth floor of the Courthouse Square Building, 310 West Lakeside Avenue, Cleveland, Ohio.
The first step in locating a file is to check the computer docket. The docket lists the case location. Here are some examples:
a) "Pend. File" - the file is on the 1st Floor of the Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113, with the Clerk of Courts.
b). "Pend. Mag" - the file is on the 6th Floor of the Courthouse Square Building, 310 West Lakeside Avenue, Cleveland, Ohio 44113, with the Clerk of Courts.
c) "Mag. Dept." - the file is on the 6th Floor of the Courthouse Square Building in the Magistrates’ Department.
d) "Judge's File" - the file is with the assigned judge. (Check the courtroom listing for each judge.)
e) "Dead" - the file is in Room 39 in the basement of the Old Courthouse, One Lakeside Avenue, Cleveland, Ohio 44113.
f) "Arbitration" - the file is in the Mediation Department on the 10th Floor of the Justice Center.
There are other possible locations, but the six places listed above hold most of the files assigned to the magistrates.
To have a default hearing set you should:
A) Prepare a motion for default judgment.
B) Obtain a final judicial report from the title company that prepared your preliminary judicial report.
C) Prepare an affidavit of military service regarding all defendants capable of serving in the military.
D) Prepare and execute an attorney affidavit as required by the Court Foreclosure Affidavit Policy or be prepared to present the testimony of the appropriate client representative at the default hearing.The full policy concerning attorney affidavits can be found here: residential mortgage foreclosure affidavit policy.
E) File and docket the motion, final judicial report, attorney affidavit and military affidavit with the Clerk of Courts. A hearing date will be set by the magistrates once your motion and final judicial report are received.
Usually, a hearing will be scheduled approximately one month following the submission of the items detailed above.
Any evidence necessary to support your claims.
Once an objection is filed, the magistrate will wait ten days after the first objections for other objections or a reply to the objection. The magistrate will then send the case file, magistrate's decision, objection to the magistrate's decision and reply to the objections to the assigned judge for ruling.
Pursuant to Civil Rule 53(D)(3)(b), upon consideration of the objections, the court may adopt, reject, or modify the magistrate's decision, hear any additional evidence, or recommit the matter to the magistrate with instructions or hear the matter. The court may refuse to consider additional evidence proffered upon objections unless the objecting party demonstrates that with reasonable diligence the party could not have produced that evidence for the magistrate's consideration.
Once a Judge adopts the magistrate's decision in a Foreclosure proceeding, how is the property set for a sheriff’s sale?
The party entitled to foreclosure files a praecipe for order of sale with the Clerk of Court on the first floor of the Justice Center. A deposit of $500.00 will be required to file a praecipe for order of sale. The filing of the praecipe will cause the clerk to issue an order of sale to the sheriff or to a private selling officer, if one has been appointed in the case. The property will then be appraised, advertised and sold at a public auction.
Local Rule 27 requires the party ordering a sheriff’s sale to provide notice of the date, time and location of the sale to all parties in the case. If the sale occurs and the party ordering sale fails to provide this notice, the sale still may be valid since the Sheriff’s Department also provides notice. However, in these circumstances, the party who ordered sale will have to file a motion to confirm sale without Rule 27 notice.
Sheriff’s sales are confirmed after a 21-day period to permit parties to seek reimbursement of advances for real estate taxes, hazard insurance, and property protection, without the need of any party to submit a proposed confirmation entry.
In private selling officer sales, after the private selling officer returns the order of sale, the party who ordered the sale must submit a detailed confirmation entry in the appropriate format.
If you are the party who ordered a judicial sale, to stop the sale after an order of sale has been issued, you must:
For sheriff’s sales:
File a motion to return order of sale without execution and submit the motion and at least two copies of a proposed order to the magistrate assigned to your case. Motions to return order of sale without execution may be filed up to the time of the sale and may be ruled upon immediately. If the motion is granted, the magistrate will keep one copy of the proposed order for the judge’s signature and will initial the remainder and return them to you. You must them take the initialed order to the second floor of the Sheriff’s Department (accessed via the Justice Center lobby) or, if the sale is taking place that moment, to the sale itself in the Justice Center Auditorium. The sheriff will then return the order of sale without execution and the sale will be canceled.
For private selling officer sales:
Instruct the private selling officer to cancel the sale.