- File Name: 16a0524n.06; case No. 15-3524 (Sept. 9, 2016)
- The Sixth Circuit granted the mortgagee's motion dismiss the appeal as moot. The mortgagor's appeal of a foreclosure judgment (after the property was sold by a special master) was moot as the mortgagor did not obtain a stay of the foreclosure sale. The Sixth Circuit refused to certify a question of law to the Ohio Supreme Court as it found no inconsistency in the case law.
- Procedural context:
- Mortgagee (successor to original plaintiff) sought to foreclose a mortgage on properties in three Ohio counties in a diversity action. The district court granted the mortgagee's motion for summary judgment. The mortgagor timely appealed the granting of the foreclosure judgment. The foreclosure judgment determined all of the rights of the parties and was a final judgment. The mortgagor did not seek a stay of the foreclosure judgment or post a supersedeas bond. In the absence of a stay the special master offered the property at sale and the mortgage was the successful purchaser with a credit bid. The district court confirmed the sale over the mortgagor's objection.
- Under Ohio law, if a judgment is voluntarily paid or satisfied then the appeal of the judgment is moot. ORC Section 2329.45 does not compel a contrary result. That section only applies if the foreclosure judgment is sought to be stayed- while a sale is inviolate there can be restitution if the judgment is reversed. The Ohio Supreme Court has declined to address what the mortgagor thought was a split in the case law. Accordingly, the Sixth Cirucit would not certify the question to the Ohio Supreme Court.
- Daughtrey, Moore and Stranch, Circuit Judges
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