[Cite as Nelnet, Inc. v. Rauch, 2019-Ohio-561.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Nelnet, Inc., : 

 Plaintiff-Appellee, : 

v. : No. 18AP-555 

 (C.P.C. No. 10CV-19008)

Emily K. Rauch et al., : 

 (ACCELERATED CALENDAR) 

 Defendants-Appellants, : 

[Jacob A. Schlosser, Administrator of the : 

Estate of Emily K. Rauch, Deceased, 

 : 

 Appellant]. 

 : 

 

D E C I S I O N 

Rendered on February 14, 2019 

 

On brief: Arthur G. Wesner, for appellants. Argued: 

Arthur G. Wesner. 

 

APPEAL from the Franklin County Court of Common Pleas 

DORRIAN, J. 

{¶ 1} Defendants-appellants, Dennis M. Rauch, Laurie Kitzmiller, Lisa Ray, and 

Jacob A. Schlosser, administrator of the estate of Emily K. Rauch (collectively, 

"appellants"), appeal from an order of the Franklin County Court of Common Pleas 

granting appellants' motion to declare void the court's foreclosure judgment in favor of 

plaintiff-appellee, Nelnet, Inc. ("Nelnet"). For the reasons that follow, we affirm. 

I. Facts and Procedural History 

{¶ 2} In April 1999, Emily K. Rauch purchased property in Franklin County, Ohio, 

identified as parcel number 170-000917-00, located at 1296 Oak Hill Road, Blacklick, Ohio, 

43004. Appellants assert that Emily occupied the residence at that address with her 

husband, Dennis M. Rauch, until her death on March 15, 2008. Emily appears to have died 
No. 18AP-555 2 

intestate, survived by Dennis and two adult daughters, Laurie Kitzmiller and Lisa Ray. At 

some point, the real estate taxes on the property became delinquent. 

{¶ 3} On November 9, 2009, Nelnet purchased a tax certificate for delinquent real 

estate taxes from the Franklin County Treasurer on parcel number 170-000917-00. The 

tax certificate identified the property address as 1296 Oak Hill Road, but did not indicate 

the city where the property was located. The tax certificate identified the parcel owner as 

Emily K. Rauch. On September 20, 2010, Nelnet purchased a second tax certificate for 

delinquent real estate taxes from the Franklin County Treasurer on parcel number 170-

000917-00. This second tax certificate identified the property address as 1296 Oak Hill 

Road, but did not indicate the city where the property was located. The second tax 

certificate identified the parcel owner as Emily K. Rauch. The total purchase price for the 

two tax certificates was $11,377.88. 

{¶ 4} On December 30, 2010, Nelnet filed a complaint for foreclosure on the two 

tax certificates, naming as defendants Emily K. Rauch, the unknown spouse of Emily K. 

Rauch, and the unknown heirs of Emily K. Rauch. The complaint listed defendants' 

addresses as 1296 Oak Hill Road, Columbus, Ohio 43220. Service by certified mail on the 

defendants at 1296 Oak Hill Road, Columbus, Ohio 43220 was returned as undeliverable, 

indicating "attempted not known." In May 2011, the trial court issued a case management 

order requiring Nelnet's attorneys to personally certify the authenticity and accuracy of all 

documents submitted in support of judgment. Service of that order by regular mail on the 

defendants at 1296 Oak Hill Road, Columbus, Ohio 43220 was returned as undeliverable, 

indicating "no such number." 

{¶ 5} In August 2011, one of Nelnet's attorneys filed an affidavit requesting service 

by publication and attesting that defendants' last known address was 1296 Oak Hill Road, 

Columbus, Ohio 43220, and that service could not be made on them because their residence 

was unknown and could not be ascertained with reasonable diligence. The proposed 

publication notice referred to the subject property as 1296 Oak Hill Road, Columbus, Ohio 

43220. On September 13, 2011, proof of publication in The Daily Reporter newspaper on 

three different dates was filed with the trial court. On October 28, 2011, Nelnet filed a 

motion for default judgment. The trial court granted Nelnet's motion and issued a 

judgment of foreclosure on November 16, 2011. On June 8, 2012, the property was sold at 
No. 18AP-555 3 

a sheriff's sale to Todd A. Espenschied, Mark S. Pratt, Joe Hakim, Mohammed G. Ammar, 

Premium Financial Corporation, and Rockingham Properties, Ltd. ("the Espenschied 

group") for $55,000. The notices that the property would be sold at a sheriff's sale and the 

sheriff's return of order of sale referred to the property address as 1296 Oak Hill Road, 

Columbus, Ohio 43220. On or about August 7, 2013, the Espenschied group sold the 

property to Luke A. Boggs and Rose E. Lane. The General Warranty Deed conveying the 

property from the Espenschied group to Boggs and Lane identified the property as parcel 

number 170-000917 and referred to the property address as 1296 Oak Hill Road, Blacklick, 

Ohio 43004. 

{¶ 6} On August 8, 2017, appellants filed a motion to declare the foreclosure 

judgment void, asserting the court lacked personal jurisdiction over them due to lack of 

service. Appellants stated the proper address for the property was 1296 Oak Hill Road, 

Blacklick, Ohio 43004, and claimed they never received notice of service at that address. 

Appellants argued Nelnet's attorneys never attempted service at that address, noting the 

complaint and other documents were sent to 1296 Oak Hill Road, Columbus, Ohio 43220, 

and returned as undeliverable. Appellants further noted the notices of service issued by 

publication referred to the property address as 1296 Oak Hill Road, Columbus, Ohio 43220. 

Nelnet did not respond to the motion. On June 11, 2018, the trial court granted appellants' 

motion, finding it lacked personal jurisdiction and ordering the foreclosure judgment and 

all subsequent orders void. 

II. Assignments of Error

{¶ 7} Appellants appeal and assign the following two assignments of error for our 

review: 

[I.] The Trial Court erred and abused its discretion in ruling (or 

attempting to rule) that individuals or entities who were not 

parties to the Foreclosure proceedings and not requesting any 

relief, had an interest in the outcome of a Foreclosure action 

which action was ultimately declared void by Court order. 

[II.] The Trial Court erred and abused its discretion in ruling 

(or attempting to rule) that individuals or entities who were not 

parties to the Foreclosure proceedings and not requesting any 

relief, had an interest in the outcome of a foreclosure action, 

which statement or ruling had the direct effect of placing a 

cloud on the title of the subject property, thereby preventing 
No. 18AP-555 4 

the Franklin County Probate Court from selling the subject real 

estate free and clear of all possible encumbrances. 

Because appellants' two assignments of error are interrelated, we will address them 

together. 

III. Analysis 

{¶ 8} Although appellants succeeded in having the foreclosure judgment declared 

void, they assert the trial court erred or abused its discretion when it addressed the status 

of the current owners of the property. The trial court's order included the following 

statement referring to the current owners: 

Furthermore, as the Court stated on the record during the 

March 27, 2018 hearing in this case, attended by Arthur 

Wesner, counsel for the heirs of Emily K. Rauch, the current 

owners of the subject property are not the same individuals 

who purchased the property at the Sheriff Sale but they are 

individuals and/or entities who subsequently purchased the 

property. Therefore, and to the Court's knowledge and 

understanding based on the record before it, the current 

owners do not appear to have purchased the property with 

knowledge of any of the prior transfers and, therefore, they 

appear to be good-faith purchasers. The Court further notes 

that, during the hearing, Mr. Wesner advised the Court that he 

does not wish to pursue a course of action against the current 

owners of the property. 

(June 11, 2018 Entry at 3-4.) 

{¶ 9} Based on our review of the record, it does not appear the current owners of 

the property were served with appellants' motion to declare the foreclosure motion void or 

any of the subsequent court filings, nor is there any record the current owners of the 

property filed an appearance in the trial court. To the extent there was any information in 

the record about subsequent owners of the property, it was limited to two pages of the 

General Warranty Deed granted from the Espenschied group to Boggs and Lane, which was 

attached as an exhibit to appellants' motion. 

{¶ 10} The question before the trial court in ruling on appellants' motion was 

whether proper service had been made on appellants, such that the court had personal 

jurisdiction over them. It was not necessary for the trial court to address the status or rights 

of the current owners of the property to resolve that question. Because the statement 
No. 18AP-555 5 

regarding the current owners' status as good-faith purchasers was not necessary to the trial 

court's holding, it constitutes dictum. "Obiter dictum" is defined as "[a] judicial comment 

made while delivering a judicial opinion, but one that is unnecessary to the decision in the 

case and therefore not precedential." Black's Law Dictionary 1240 (10th Ed.2014). See 

State ex rel. Coble v. Lucas Cty. Bd. of Elections, 130 Ohio St.3d 132, 2011-Ohio-4550, ¶ 31 

(concluding that paragraph from an earlier decision was "unnecessary to the court's holding 

and was thus dicta"); Bright v. Family Medicine Found., Inc., 10th Dist. No. 02AP-1443, 

2003-Ohio-6652, ¶ 12 (concluding that statement in prior decision was dictum "because it 

did not affect the holding of the case"). Alternatively, the court's statement regarding the 

current owners of the property could be construed as an advisory opinion, which is defined 

as "[a] nonbinding statement by a court of its interpretation of the law on a matter 

submitted for that purpose." Black's at 1265. See also State ex rel. Draper v. Wilder, 145 

Ohio St. 447, 455 (1945) ("[A]n advisory opinion is merely the opinion of a judge or judges 

of a court, which adjudicates noting and is binding on no one."). 

{¶ 11} This court has previously held that an advisory opinion is not subject to 

appeal. Rupert v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 17AP-173, 2017-Ohio-8377, 

¶ 33. Similarly, the Second District Court of Appeals has held that a party cannot appeal 

from dictum. John G. Black Ents., Inc. v. Centerville City School Bd. of Edn., 2d Dist. No. 

15036 (Dec. 20, 1995); Greene Environmental Coalition, Inc. v. Southdown, Inc., 2d Dist. 

No. 92-CA-124 (May 4, 1993); Walther v. Central Trust Co., N.A., 70 Ohio App.3d 26, 34 

(2d Dist.1990). As explained above, based on the record in this case, we find the trial court's 

statement regarding the current owners of the property to be dictum or an advisory 

opinion; therefore, it is not subject to appeal. 

{¶ 12} Accordingly, we overrule appellants' two assignments of error. 

IV. Conclusion 

{¶ 13} For the foregoing reasons, we overrule appellants' two assignments of error 

and affirm the judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

LUPER SCHUSTER and BRUNNER, JJ., concur.