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Date: 10-07-2019
Case Style:
U.S. BANK NATIONAL ASSOCIATION v. HADASSAH L. CONRAD, et al.
Case Number: 28375
Judge: Rosemarie A. Hall
Court: COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Plaintiff's Attorney:
Defendant's Attorney:
Description:
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On March 10, 2017, U.S. Bank filed a foreclosure action against Hadassah
L. Conrad and others with respect to residential property in Dayton. In May, the trial court
entered judgment for U.S. Bank and ordered that the property be sold at a sheriff’s sale
on August 11. The day before the sale, Ackerman filed a combined “Notice and Filing of
Claim of Interest in Land” and “Motion for Stay of Sheriff Sale” in which he stated that he
lived across the street from the foreclosed property and that he had a “claim of interest,
objective use, and enjoyment of the property.” Ackerman asked the trial court for an
extension to file a “recording affidavit relating to title” with the county recorder and for a
stay of the sheriff’s sale. The trial court overruled Ackerson’s motion for a stay on August
11, because it was untimely and failed to set out any true claim of interest in the property.
The property was sold at the sheriff’s sale, and on August 31, 2017, the trial court entered
a judgment confirming the sale.
{¶ 3} Ackerman appealed the order denying his motion for a stay and, separately,
the order confirming the sale. He argued that the trial court had failed to recognize his
claim of interest in the foreclosed property. We consolidated the two appeals and, on
March 16, 2018, affirmed both orders. See U.S. Bank National Assn. v. Conrad, 2018
Ohio-994, 108 N.E.3d 1156 (2d Dist.). We agreed with the trial court that Ackerman had
failed to demonstrate a sufficient interest in the property. We also noted that it appeared
that Ackerman, in an effort to assert his claimed interest in the property, was trying to
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intervene in the foreclosure litigation. We said that even if we construed Ackerman’s
notice and motion as a motion to intervene under Civ.R. 24, we would find no error in the
trial court’s decision to deny the motion. We pointed out that the notice and motion were
filed after the trial court entered its judgment and decree of foreclosure, that Ackerman
did not ask the court to vacate the judgment of foreclosure in order to pursue his claim,
and that the notice was not accompanied by a pleading setting forth his claim and/or
defense in the action, as required by rule.
{¶ 4} On February 15, 2019, Ackerman filed pro se a “Third Party Interest Petition
for Writ of Mandamus Instanter.” In the petition, he reiterated his assertion that he has a
“claim of interest, ‘objective use’, and enjoyment of [the property] for the past 30+ years
(1997), and has ‘treated it as his own’ for at least, 21+ years.” On April 1, the trial court
granted U.S. Bank’s motion to dismiss or overrule the petition on both procedural and
substantive grounds. The court concluded that, procedurally, the petition was fatally
defective because it was not brought in the name of the state. The court also found that
the petition was not properly captioned and did not identify the respondent and the
respondent’s address. Substantively, the trial court concluded that the petition failed to
establish a clear legal right to the requested relief, failed to establish a clear legal duty to
grant relief, and failed to establish the lack of an adequate legal remedy. The court further
concluded that Ackerman was effectively attempting to collaterally attack the trial court’s
denial of his motion for a stay and concluded the attack was barred by res judicata.
{¶ 5} Ackerman appeals.
II. Analysis
{¶ 6} Ackerman’s sole assignment of error alleges:
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Pursuant to Appellant’s assignment of error #1 at trial court’s
decision entered by said trial court on the 1st day of April, 2019; “Order and
Entry Granting Motion to Dismiss/Overrule Petition for Writ of Mandamus”,
page 1 at I. Factual and Procedural Background, and specifically stated in
paragraph 1 by the court, “An order of sale was issued, and the day before
the sale, Ackerman—who was not and is not a party to this case—filed a
motion to stay the sale”.
Ackerman appears to argue that the trial court erred by finding that he was not a “legal
party” and erred by not permitting him to intervene in the foreclosure proceedings to
protect his interest in the property.
{¶ 7} As the trial court stated, Ackerman was not a party to the foreclosure
proceedings. And we have affirmed the trial court’s denial of his attempt to intervene
without leave. See Conrad, 2018-Ohio-994, 108 N.E.3d 1156. Furthermore, we agree
with the trial court that Ackerman’s petition was procedurally and substantively defective.
That the petition was not brought in the name of the state on the relation of the person
requesting the writ, as required by R.C. 2731.04, was alone sufficient grounds to deny
the petition. See Shoop v. State, 144 Ohio St.3d 374, 2015-Ohio-2068, 43 N.E.3d 432, ¶
10; Cousino v. State, 6th Dist. Lucas No. L-06-1368, 2007-Ohio-2142, ¶ 4. In addition,
Ackerman’s petition failed to establish a clear legal right to the relief that he requested,
failed to establish a clear legal duty to grant relief, and failed to establish the lack of an
adequate remedy at law. Indeed, Ackerman had an adequate legal remedy by way of
appeal from the trial court’s denial of his motion for a stay. See Shoop at ¶ 8-9. Finally,
res judicata prevents Ackerman from collaterally attacking the trial court’s judgment
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denying his motion for a stay, a judgment that we affirmed, and provides another basis
for dismissal of the petition. See State ex rel. McKinney v. Schmenk, 152 Ohio St.3d 70,
2017-Ohio-9183, 92 N.E.3d 871, ¶ 10-11; State ex rel. Alford v. Adult Parole Authority,
152 Ohio St.3d 35, 2017-Ohio-8773, 92 N.E.3d 838, ¶ 4, 7.
{¶ 8} The assignment of error is overruled.
Outcome: We have overruled the sole assignment of error presented. The trial court’s
judgment is affirmed.
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