[Cite as State ex rel. U.S. Bank Trust, NA v. Summit Cty. , 2021-Ohio-3189.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO EX REL. US BANK TRUST, NATIONAL ASSOCIATION, AS TRUSTREE OF AMERICAN HOMEOWNER PRESERVATION TRUST SERIES 2014A 819 S. WABASH ST., SUITE 606, CHICAGO, IL 60605

Relator

v. SUMMIT COUNTY, OHIO Respondent C.A. No. 29889

ORIGINAL ACTION IN MANDAMUS

Dated: September 15, 2021

PER CURIAM. {¶1} Relator, US Bank, has petitioned this Court for a writ of manda mus directed to Respondent, Summit County, Ohio, seeking an order directing Sum mit County to begin appropriation proceedings regardi ng property that was foreclose d upon in 2017. Summit County

moved to dismiss and US Bank re sponded in opposition. For the following reasons, this Court grants the motion to dismiss. {¶2} According to US Bank’s complain t, it owned a property located i n Summit County, Ohio. There is no disput e that there were taxes due an d unpaid on this p roperty. Summit County’s Fiscal Officer commenced an expedited tax foreclosure case in the Summit County

Board of Revision to collect de linquent real estate taxes, tota ling about $4,000, owed on the property, valued at about $48,000.C.A. No. 29889 Page 2 of 7 Requirements for a Writ of Mandamus and Motion to Dismiss {¶3} “The United States and Ohio Constitutions guarantee that privat e property shall not be taken for public use wit hout just compensation.” (citat ions omitted) State ex rel. Gilbert

v. Cincinnati , 125 Ohio St.3d 385, 2010-Ohio-1473, ¶ 14. Mandamus serves as the appropriate action to compel public authorities to institute appropriation proceedings where the property owner has alleged a n involuntary taking of private property. Id. {¶4} In this context, to be entitled to the writ of mandamus, US Ban k must establish a clear legal right to compel Summit County to commence appropria tion proceedings, a corresponding legal duty on the part of Summit County to instit ute that action, and the lack of an adequate remedy for US Bank i n the ordinary course of law. Id. at ¶ 15. {¶5} Dismissal of a petition for writ of mandamus is appropriate onl y if it appears beyond doubt from the complaint that the relator can prove no s et of facts warranting relief, after all factual allegations of the complaint are presumed true and all reasonable inferences are made

in the relator’s favor. See, e.g., State ex rel. Martin v. Russo , 160 Ohio St.3d 21, 2020-Ohio-829, ¶ 7. Expedited Foreclosure Procedure {¶6} Although we normally begin with a r eview of the facts in the co mplaint, the import of those facts is tied directly to Ohio’s statutory expe dited foreclosure scheme. Accordingly, we begin with a brief overview of the statutory pr ocedures before we turn to the

facts. {¶7} R.C. 323.25 authorizes the county treasurer to enforce a tax li en by filing a suit, just as a mortgage lien could be enforced. In the typical case , the property is sold at a publicC.A. No. 29889 Page 3 of 7 auction and the proceeds are used to cover the lien. If the pr oceeds from the sale exceed the amount of the lien, those proceeds are paid to the former owner of the property. {¶8} The General Assembly adopted an alternative, expedited, procedu re for handling tax foreclosures on abandoned property. R.C. 323.66. Instead of selling the property at a public auction, it can be transferred to a land bank. R.C. 323.78(B). The transfer deems the liens

satisfied. Id. No taxes are collected and no funds are paid to the fiscal of fice as a result of this

transfer. {¶9} This procedure is abbreviated, but it is not without protection s for property owners. For example, the Board of Revision must provide notice to the property owner. The Board, on its own or upon motion of a party, may transfer a cas e from the Board of Revision to a common pleas or municipal court with jurisdiction to handle a ny challenges to the foreclosure. R.C. 323.691(A)(1); R.C. 323.70(B). {¶10} Even after the Board’s foreclos ure decision, the property owner has remedies. R.C. 323.65(J). The owner may pay the outstanding amount due w ithin 28 days to redeem the property. The owner may also file an appeal in the court of co mmon pleas. R.C. 323.79. In this appeal, the owner may raise new issues that were not presented to the Board or Revision. Id. The Facts Alleged in the Complaint {¶11} Turning to the facts alleged in the complaint, there is no disp ute that the taxes were delinquent on the property owned by US Bank that is the su bject of this action. This property was foreclosed upon i n 2017 pursuant to the expedited process that allows for property

to be transferred to the land bank r ather than sold at auction. {¶12} The Board of Revision held a hearing on November 17, 2017. US Bank did not appear at that hearing. Followi ng the hearing, the Board enter ed an Adjudication of ForeclosureC.A. No. 29889 Page 4 of 7 Direct Transfer. This adjudica tion ordered that US Bank’s righ t of redemption would be extinguished after 28 days, as required by R.C. 323.78. It als o provided for the direct transfer of the property to the land bank at the expiration of the redempti on period. US Bank did not appeal

this decision to the cour t of common pleas. R.C. 323.79. {¶13} After 28 days had passed, in D ecember 2017, the Board ordered t he sheriff to transfer the property to the l and bank. It also ordered the sh eriff to issue a deed to the land bank for the property. {¶14} The complaint alleges that the direct transfer of the property to the land bank constituted a taking pursuant to the Ohio and United States Con stitutions. It further alleges that, by this transfer, Summit County deprived US Bank of its ownersh ip of the property without providing compensation for the value of the property, which exc eeded the amount owed in taxes. US Bank filed this action three years after the foreclosure pro cess terminated to seek a writ of

mandamus to order Summit Count y to begin appropr iation proceedi ngs. Summit County’s Motion to Dismiss and US Bank’s Response {¶15} Summit County moved to dismiss. It argued, among other things, that US Bank

was not entitled to ma ndamus relief becaus e it had an adequate remedy at law and that US Bank

was not entitled to relief because a taking cannot arise from t he enforcement of tax laws. {¶16} We conclude that US Bank had an a dequate remedy at law, which i s dispositive

of its claim for manda mus relief. Accordi ngly, we address only that argument. Analysis {¶17} As noted above, the property wa s sold through an expedited tax foreclosure proceeding. R.C. 323.66. After the complaint was filed, the c lerk served the complaint. Pursuant to R.C. 323.69(B)(1), the clerk’s notice stated that the land w ould be sold at public auction orC.A. No. 29889 Page 5 of 7 otherwise disposed of. The noti ce also provided that the land could be redeemed by paying the

total amount due at a ny time before the conf irmation of sale or transfer of the land. Id. {¶18} The statutory scheme provides an opportunity for a property own er to answer the complaint. R.C. 323.72(A)(1). In the answer, the owner may as sert that the amount due has been paid, challenge the amount due, raise issues regarding service, and challenge whether the property is abandoned land. Id. {¶19} If the property is subject to foreclosure, it must be sold at a public auction or it may be transferred to a land bank. R.C. 323.78(A). If the lat ter option is pursued, no sale takes place, but the owner has a 28-day period to redeem the property . R.C. 323.78(A). If the property is not redeemed, the Board of Rev ision shall transfer the prope rty to the land bank. R.C. 323.78(B). {¶20} The transfer to the land bank is free and clear of all liens. Id. The transfer is also authorized even if the fair market value of the property exceed s the value of the liens, other charges, and the costs of the action. Id. {¶21} Even though this foreclosure process is expedited, the statute still provides a right to appeal. R.C. 323.79. An aggrie ved party may file an appeal in the court of common pleas within 14 days of the journalization of the transfer to the lan d bank. Id. This appeal is unique as compared to other administrative appeals because it proceeds as an appeal de novo. Id. The appeal may include issues raised in the proceedings before the Board of Revision as well as other

issues that are raised f or the first time on appeal. Id. {¶22} Having outlined the procedural path the property traveled durin g the foreclosure proceedings, we now consider the alternative remedies that were available to US Bank. The complaint is silent about whether US Bank appeared in the forec losure proceedings. TheC.A. No. 29889 Page 6 of 7 attachments to the complaint i ndicate that all parties were ser ved and US Bank has not disputed in the complaint that it was not properly served. In its respo nse to Summit County’s motion to dismiss, however, US Bank noted in passing that it “was not pro perly served with the summons and complaint.” US Bank did not m ention this in its complaint for mandamus relief, and it does not mention it further or rely on it in its response to the mot ion to dismiss, so we do not consider it in our analysis. {¶23} US Bank has also not alleged in the complaint that it did not r eceive the required notice of the foreclosure proceedings. Because US Bank failed to participate, it missed its opportunity to move the Board of Revision to transfer the actio n to a common pleas or municipal court for further proceedings. R.C. 323.70. {¶24} After the foreclose was completed, US Bank also had the statuto ry right to appeal

the decision to the court of co mmon pleas. But it did not. Ha d it appealed, it coul d have presented arguments even though it had fa iled to appear and raise them du ring the foreclosure proceedings

before the Board of Revision. {¶25} As just outlined, US Bank had several remedies available to it short of seeking a writ of mandamus. Although those remedies are no longer availa ble, that does not mean the remedies are inadequate. State ex rel. Gaydosh v. Twinsburg , 93 Ohio St.3d 576, 579 (2001). {¶26} Finally, we note that our conclu sion is consistent with the rec ent decisions of the Sixth and Eighth Districts in nearly identical cases. State ex rel. US Bank v. Lucas Cty. , 6th Dist. Lucas No. L-21-1087, ¶ 23 (Aug. 5, 2021); State ex rel. US Bank v. Cuyahoga Cty. , 8th Dist. Cuyahoga No. 110297, 2021-Ohio-2524, ¶ 33.C.A. No. 29889 Page 7 of 7 Conclusion {¶27} US Bank had plain and adequate r emedies at law. Accordingly, i t is not entitled

to the writ of mandamus. Summit County’s motion to dismiss is granted, and this case is

dismissed. {¶28} Costs are taxed to US Bank. The clerk of courts is hereby dire cted to serve upon all parties not in default noti ce of this judgment and its date of entry upon the journal. See Civ.R.

58.

L YNNE S. CALLAHAN FOR THE COURT

HENSAL, J. TEODOSIO, J. CONCUR.

APPEARANCES: MARC E. DANN and ANDREW M. ENGEL, A ttorneys at Law, for Relator

. SHERRI BEVAN WALSH, Prosecuting Attorney, and REDINA M. VANVORO US and RAYMOND J. HARTSOUGH, Assistant Pr osecuting Attorneys, for Resp ondent.