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Published: Thursday, 5/30/2013

Foreclosure ‘do-overs’ rejected

Action can’t be dismissed if lenders miss sale, court rules

O'Neill O'Neill

Banks and other mortgage lenders in Ohio were put on notice Tuesday: if you don’t attend foreclosure sales, you can’t rescind the foreclosure and do it over.

In a unanimous opinion, the Ohio Supreme Court reversed a decision by the 6th District Court of Appeals that upheld a ruling in Wood County Common Pleas Court that permitted Countrywide Home Loans Serving to voluntarily dismiss a foreclosure on a Perrysburg home after the property was sold at sheriff’s sale. Countrywide representatives had failed to attend the sale, where the property was sold to a third party, so the lender dismissed the complaint before the sale was confirmed. Soon after, Countrywide re-filed the foreclosure action.

“To grant a lender the right to dismiss an action after a trial court has issued what it had indicated was a final judgment, would lead to the untenable result that an unhappy lender could simply wait until after the sheriff’s sale has occurred, decide that the sale price was too low, and then dismiss the case in order to get a second bite at the apple,” Justice William O’Neill wrote. “This flies in the face of the general policy that judicial sales have a certain degree of finality.”

John P. Lewandowski, an attorney for homeowners Michael and Joann Nichpor of Perrysburg, said the foreclosure action against his clients is still pending, but the high court’s ruling accomplishes two things.

“It clarifies the rules a bank must follow, and it allows a third party to bid on a property at a sheriff’s sale with confidence, without fear a bank may be able to do this in the future,” he said.

Attorney Gary Sommer, who also represents the Nichpors, was encouraged by the ruling.

“One of the reasons the Supreme Court got interested in this is that there is a plethora of foreclosure actions in our county and throughout the state so it is a live topic and it does occupy a lot of the court’s docket,” he said.

In cases like this, where the lender missed the sheriff’s sale and so missed the opportunity to bid on the property, he said, “There were different results depending on what part of the state you were in. Some counties would allow banks that failed to go to the sheriff’s sale to take a do-over, and in other counties the court would say, ‘No. You don’t get a do-over.’”

Andrew C. Clark, an attorney for Countrywide, could not be reached for comment Tuesday.

Contact Jennifer Feehan at: or 419-213-2134.

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