[Cite as Nelnet, Inc. v. Young, 2014-Ohio-3521.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Nelnet, Inc. [Municipal Tax Property LLC], : 

 Plaintiff-Appellee, : 

 No. 13AP-1092 

v. : (C.P.C. No. 11 CV 012669) 

Michael J. Young, Trustee, : (REGULAR CALENDAR) 

 Defendant-Appellant, : 

K & L Partnership et al., : 

 Defendants-Appellees. : 

 

D E C I S I O N 

Rendered on August 14, 2014 

 

Law Office of Schwartz & Associates, Benjamin M. Golsky

and Kirk W. Liederbach, for plaintiff-appellee. 

Michael J. Young, pro se. 

 

APPEAL from the Franklin County Court of Common Pleas 

DORRIAN, J. 

{¶ 1} Defendant-appellant, Michael J. Young, Trustee ("appellant"), appeals pro 

se from a judgment of the Franklin County Court of Common Pleas granting summary 

judgment in favor of plaintiff-appellee, Municipal Tax Property, Inc. ("MTP"), on a 

complaint for foreclosure pursuant to a tax certificate issued by the Franklin County 

Treasurer. Because we conclude that there was no error regarding the correct party to 

pursue the action as plaintiff after the trial court vacated its original default judgment 

order, we affirm. 
No. 13AP-1092 2 

{¶ 2} This case originated when Nelnet, Inc. ("Nelnet") filed a complaint on 

October 11, 2011, asserting that it had purchased Tax Certificate No. 010-019193-00-P1-

0015-09 at public auction from the Franklin County Treasurer. Nelnet claimed that the 

tax certificate constituted a first lien on certain property identified as "Creswick St.," 

located in Franklin County, Ohio. Nelnet asserted that the certificate redemption price 

was due and unpaid and sought foreclosure on the Creswick St. property. The complaint 

named appellant as one of several defendants. 

{¶ 3} On May 10, 2012, Nelnet moved for default judgment against some of the 

defendants, including appellant. The trial court granted a default judgment and decree of 

foreclosure on May 11, 2012. Subsequently, on January 17, 2013, Nelnet filed a motion to 

substitute MTP as plaintiff, asserting that it had transferred its interest in the tax 

certificate to MTP and that the same counsel was attorney of record for both of these 

related entities. The trial court granted the motion to substitute on January 22, 2013, and 

ordered MTP substituted as plaintiff, without change to the counsel of record. 

{¶ 4} On March 22, 2013, appellant, appearing pro se, filed a motion to vacate the 

default judgment, asserting that he was never served with a copy of the complaint or other 

pleadings. The trial court granted the motion to vacate and vacated the default judgment 

order. MTP's counsel requested service of the complaint and summons on appellant, and 

appellant filed an answer to the complaint. MTP then moved for summary judgment, 

asserting that there were no genuine issues of material fact and that it was entitled to 

judgment as a matter of law. The trial court granted the motion for summary judgment, 

issuing a judgment of foreclosure pursuant to the lien existing under the tax certificate. 

{¶ 5} Appellant appeals from the trial court's judgment, assigning two errors for 

this court's review: 

Assignment of Error No. 1

THE FRANKLIN COUNTY COURT OF COMMON PLEAS 

ERRED IN GRANTING SUMMARY JUDGMENT TO 

PLAINTIFF NELNET INC., AS PLAINTIFF NELNET INC. 

HAD TRANSFERRED ITS INTEREST IN THE ACTION TO 

SUBSTITUTE PLAINTIFF MUNICIPAL TAX PROPERTY, 

LLC, AND, AFTER SAID TRANSFER OF NELNET'S 

INTEREST TO SAID MUNICIPAL TAX PROPERTY LLC, 

THE ORIGINAL JUDGMENT AGAINST DEFENDANT AND 
No. 13AP-1092 3 

ASSUMED BY SUBSTITUTE PLAINTIFF MUNICIPAL TAX 

PROPERTY LLC, WAS SET ASIDE BY THE TRIAL COURT 

BECAUSE OF MISCONDUCT BY ORIGINAL PLAINTIFF 

NELNET INC. IN A RULE 60(B) MOTION FILED BY 

DEFENDANT. PLAINTIFF NELNET INC. IS NOT A PROPER 

PARTY IN THE INSTANT CASE, AND SUBSTITUTE 

PLAINTIFF MUNICIPAL TAX PROPERTY LLC HAS NO 

STANDING IN THE JUDGMENT ENTERED BY THE TRIAL 

COURT ON NOVEMBER 26, 2013. SUBSTITUTE PLAINTIFF MUNICIPAL TAX PROPERTY LLC NEVER JOINED IN 

THE COMPLAINT RE-FILED BY ORIGINAL PLAINTIFF 

NELNET INC. AFTER THE ORIGINAL JUDGMENT WAS 

SET ASIDE BY THE TRIAL COURT, AND NELNET INC., 

HAVING TRANSFERRED ITS INTEREST IN THIS ACTION 

TO SUBSTITUTE PLAINTIFF MUNICIPAL TAX PROPERTY 

LLC, HAD NO STANDING TO RE-FILE AND/OR RE-SERVE 

DEFENDANT. 

Assignment of Error No. 2

THE PURPORTED SALE OF THE TAX CERTIFICATE 

REFERENCED IN PLAINTIFF'S COMPLAINT IS INVALID 

AS THE PROVISIONS CITED IN THE OHIO REVISED 

CODE, SPECIFICALLY O.R.C. 5721.30 THRU [sic] 5721.43, 

ARE UNCONSTITUTIONAL AND AGAINST PUBLIC 

POLICY. THE COUNTY TREASURER'S OFFICE ONLY IS 

AUTHORIZED TO COLLECT REAL ESTATE TAXES FROM 

RESPECTIVE PROPERTY OWNERS. THE PURPORTED 

SALE OF SO CALLED "TAX CERTIFICATES" TO THIRD 

PARTIES IS AN INVALID DELEGATION OF THE 

TREASURER'S COLLECTION AUTHORITY AND COMPLETELY DISREGARDS THE INTENT OF THE COUNTY 

TREASURER'S RESPONSIBILITIES. 

{¶ 6} We review a trial court's ruling on a summary judgment motion de novo. 

Capella III, L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.), 

citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). "De novo 

appellate review means that the court of appeals independently reviews the record and 

affords no deference to the trial court's decision." (Citations omitted.) Holt v. State, 10th 

Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9. Summary judgment is appropriate where "the 

moving party demonstrates that (1) there is no genuine issue of material fact, (2) the 

moving party is entitled to judgment as a matter of law, and (3) reasonable minds can 
No. 13AP-1092 4 

come to but one conclusion, and that conclusion is adverse to the party against whom the 

motion for summary judgment is made." Capella III at ¶ 16, citing Gilbert v. Summit Cty., 

104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6. 

{¶ 7} Appellant's first assignment of error asserts that the trial court erred by 

granting summary judgment because Nelnet was not the real party in interest and lacked 

standing to pursue the lawsuit. Appellee responds that, because Nelnet was the certificate 

holder at the time it filed the complaint, Civ.R. 25(C) permitted Nelnet to pursue the suit 

after transferring its interest in the tax certificate to MTP. Civ.R. 25(C) provides that, "[i]n 

case of any transfer of interest, the action may be continued by or against the original 

party, unless the court upon motion directs the person to whom the interest is transferred 

to be substituted in the action or joined with the original party." 

{¶ 8} Reviewing the record before us, we need not reach the question of whether 

Civ.R. 25(C) authorized Nelnet to continue the action because it appears that, after the 

court vacated the initial default judgment, it was MTP that pursued the case because MTP 

had already been substituted as plaintiff. In his motion to vacate, appellant asserted that 

he had not been served with the complaint or other pleadings in the case. The trial court 

granted the motion to vacate the judgment on June 20, 2013. Counsel for MTP, who had 

also previously served as counsel for Nelnet, then requested that the clerk of courts serve 

copies of the original complaint and summons on appellant. After appellant filed an 

answer to the complaint, MTP filed a motion for summary judgment, referring to itself in 

the motion as the "substituted plaintiff." Thus, although the original complaint that was 

served on appellant contained Nelnet's name as plaintiff, it was MTP that pursued the 

case following the order vacating the default judgment, and it was MTP that sought 

summary judgment. Therefore, despite appellant's assertion, the trial court did not 

erroneously grant summary judgment in favor of a party that lacked standing to pursue 

the litigation. 

{¶ 9} Accordingly, we overrule appellant's first assignment of error. 

{¶ 10} In his second assignment of error, appellant argues that the statutes 

authorizing the sale of tax certificates by county treasurers are unconstitutional. There is a 

presumption of constitutionality for lawfully enacted legislation. State ex rel. Zeigler v. 

Zumbar, 129 Ohio St.3d 240, 2011-Ohio-2939, ¶ 24. "[B]efore a statute is struck down 'it 
No. 13AP-1092 5 

must appear beyond a reasonable doubt that the legislation and constitutional provisions 

are clearly incompatible.' " Id., quoting State ex rel. Dickman v. Defenbacher, 126 Ohio 

St. 142 (1955), paragraph one of the syllabus. Appellant's brief does not cite any specific 

constitutional provision that he asserts is in conflict with the challenged statutory 

provisions. Appellant also fails to cite any case law in support of his second assignment of 

error. Therefore, appellant has failed to demonstrate beyond a reasonable doubt that the 

statutes are clearly incompatible with a constitutional provision. 

{¶ 11} Accordingly, we overrule appellant's second assignment of error. 

{¶ 12} For the foregoing reasons, we overrule appellant's two assignments of error 

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

Judgment affirmed. 

KLATT and LUPER SCHUSTER, JJ. 

___________________