[Cite as Gasper v. Adkins, 2018-Ohio-3941.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Christopher Gasper, Guardian of the : 

Estate of Diantha Adkins, Incompetent, 

 : 

 Plaintiff-Appellee, No. 17AP-294 

 : (Prob. No. 576852A) 

v. 

 : (REGULAR CALENDAR) 

Diantha Adkins, Ward et al., 

 : 

 Defendants-Appellees, 

 : 

[Carrington Mortgage Services, LLC, 

 : 

 Defendant-Appellant.] 

 : 

 

 

D E C I S I O N 

Rendered on September 27, 2018 

 

On brief: Kincaid, Randall & Craine, and Kevin A. Craine, 

for appellee Christopher Gasper, Guardian of the Estate of 

Diantha Adkins, Incompetent. Argued: Kevin A. Craine. 

On brief: Maurice Wutscher LLP, and Kevin M. Hudspeth; 

Ernest P. Wagner, for appellant. Argued: Ernest P. Wagner. 

 

APPEAL from the Franklin County Court of Common Pleas, 

Probate Division 

BROWN, P.J. 

{¶ 1} This is an appeal by defendant-appellant, Carrington Mortgage Services, 

LLC, from entries of the Franklin County Court of Common Pleas, Probate Division ("the 

probate court"), overruling appellant's objections to a magistrate's decision and finding 

the sale of a ward's property by a guardian to be necessary. 
No. 17AP-294 2 

{¶ 2} Diantha Adkins (hereafter "Adkins" or "the ward") is the owner of property 

located at 2400 Altenburg Court, Grove City. On March 31, 2009, Adkins obtained a 

mortgage loan on the property. On February 5, 2016, plaintiff-appellee, Christopher 

Gasper ("appellee" or "the guardian"), initiated guardianship proceedings in the probate 

court. On March 15, 2016, the probate court appointed appellee as guardian of the person 

and estate of Adkins. 

{¶ 3} On May 25, 2016, appellee filed a complaint naming various defendants and 

requesting the sale of the ward's real estate. The complaint alleged Adkins held a 100 

percent fee simple interest in the property. One of the named defendants, Bank of 

America, N.A., filed an answer and asserted affirmative defenses including a claim it had 

assigned its interest in the mortgage to appellant. On July 27, 2016, appellant filed a 

motion to intervene, claiming an interest in the subject property as the current mortgage 

holder. On September 22, 2016, a magistrate of the probate court filed an order granting 

appellant's motion to intervene. 

{¶ 4} On November 23, 2016, appellee filed a motion requesting a hearing on a 

proposed entry finding sale of property necessary and ordering a sale. By entry filed that 

same date, the probate court set a hearing date to consider the proposed entry. On 

December 23, 2016, appellant objected to the sale of real estate requested by the guardian. 

As part of the filings before the probate court, appellant submitted a payoff statement 

indicating the mortgage loan was in default as of October 1, 2014. 

{¶ 5} On January 13, 2017, a magistrate of the probate court conducted a hearing 

on the matter. On January 19, 2017, the magistrate issued a decision finding the sale of 

the property was in the best interest of the ward and that retention of ownership of the 

subject real estate "jeopardizes her qualification for Medicaid benefits essential for 

payment of her needed care." The magistrate further found that "conveyance of the 

property in a deed in lieu of foreclosure to defendant Carrington Mortgage Services is also 

in her best interest." The magistrate thus authorized the guardian to obtain an appraisal 

of the subject property in preparation of its sale, pursuant to R.C. Chapter 2127 or, in the 

alternative, the magistrate authorized the guardian to execute a deed in lieu of foreclosure 

to appellant pursuant to R.C. 2111.50(B)(1). 
No. 17AP-294 3 

{¶ 6} On February 2, 2017, appellant filed objections to the magistrate's decision. 

Specifically, appellant objected to the magistrate's finding that a public or private 

guardian sale was in the best interest of the ward. Appellant further objected to any 

authority set forth in the magistrate's decision allowing the guardian to conduct a public 

or private guardian sale of property rights exceeding those the ward possessed at the time 

the guardian filed the complaint. 

{¶ 7} On March 27, 2017, the probate court filed a judgment entry overruling 

appellant's objections and adopting the magistrate's decision of January 19, 2017. On 

March 29, 2017, the probate court filed an entry finding the sale necessary, waiving a new 

appraisal and additional bond, and ordering the sale of the property. 

{¶ 8} On appeal, appellant sets forth the following assignment of error for this 

court's review: 

Whether the Probate Court erred by authorizing the Guardian 

to sell the ward's real property free and clear of Carrington's 

mortgage lien without Carrington's consent. 

{¶ 9} Under its single assignment of error, appellant challenges the probate 

court's entries adopting the magistrate's decision and authorizing the guardian to sell the 

subject property. Appellant first contends the guardian could only sell the ward's interest 

in the property as it existed when the complaint was filed. More specifically, appellant 

argues that, because the ward defaulted on her mortgage loan prior to the time of the 

filing of the complaint, the guardian could only transfer to a purchaser the ward's 

equitable right to redeem the mortgage. 

{¶ 10} In general, "when objections to a magistrate's decision are filed, a trial court 

undertakes a de novo review of the magistrate's decision." In re Estate of Klie, 10th Dist. 

No. 16AP-77, 2017-Ohio-487, ¶ 7. A probate court's decision adopting a magistrate's 

decision "is ordinarily reviewed on appeal for an abuse of discretion." In re Estate of 

Porter, 10th Dist. No. 17AP-414, 2017-Ohio-8840, ¶ 9. However, as to issues on appeal 

that involve a "question of law, an appellate court employs a de novo standard of review." 

Id.

{¶ 11} R.C. Chapter 2127 governs land sales by executors, administrators, and 

guardians, and R.C. 2127.05 states in part as follows: 
No. 17AP-294 4 

Whenever necessary for the education, support, or the 

payment of the just debts of the ward, or for the discharge of 

liens on the real property of the ward, whenever the real 

property of the ward is suffering unavoidable waste, or a 

better investment of its value can be made, or whenever it 

appears that a sale of the real property will be for the benefit 

of the ward or the ward's children, the guardian of the person 

and estate * * * may commence a civil action in the probate 

court for authority to sell all or any part of the real property of 

the ward. 

{¶ 12} In accordance with R.C. 2127.05, a guardian seeking to sell real estate must 

file a "civil action asking the Probate Court for authority to sell the ward's realty." In re 

Rice, 7th Dist. No. 00 CO 33 (Feb. 13, 2001). Upon commencement of an action, the 

complaint and summons are served on all "interested parties, such as lien holders." 

Mangan v. Mangan, 1st Dist. No. C-990094 (Oct. 1, 1999), citing R.C. 2127.12, 2127.14, 

and 2127.15. A party who has been made a defendant to such action "may object to the 

sale of the decedent's real property by filing an action." Id., citing R.C. 2127.17. The 

probate court is authorized "to determine whether the sale of the property is in the best 

interests of all parties concerned." Id., citing R.C. 2127.29. Upon determination that a 

sale is necessary, the probate court "may order either a public or a private sale of the real 

property." Id., citing R.C. 2127.32. 

{¶ 13} As noted under the facts, the guardian in the instant case filed a complaint 

with the probate court to sell real estate of the ward, pursuant to R.C. 2127.05, and 

appellant subsequently objected to a sale. Following a hearing, a magistrate of the 

probate court determined a sale of the property was in the best interest of the ward 

finding the ward's retention of the ownership in the real estate would jeopardize her 

qualification for Medicaid benefits essential for her care. 

{¶ 14} In its objections to the magistrate's decision, appellant argued Ohio law 

dictates that legal title of mortgaged property, as between the mortgagor and mortgagee, 

transfers to the mortgagee immediately upon the mortgagor's default; further, that the 

mortgagor holds only an equitable interest of redemption until the default is cured. 

Appellant thus argued that, because the ward was in default of the mortgage obligation 

prior to the time of the filing of the complaint to sell the real estate, the guardian could 
No. 17AP-294 5 

only request authority to sell the ward's existing property interest (i.e., according to 

appellant, the equitable right to redeem the mortgage). 

{¶ 15} The probate court addressed and rejected appellant's argument, holding in 

part: 

It is true that legal and equitable title to mortgaged real estate 

remains in the mortgagor as long as the condition of the 

mortgage remains unbroken, but that after condition is 

broken, legal title as between the mortgagee and mortgagor is 

vested in the mortgagee subject to the equity of redemption. 

Hausman v. Dayton, 73 Ohio St.3d 671 (1995). The problem 

with [appellant's] argument is not that they misstate the law 

but that they totally misapply it and fail to apply the proper 

understanding and meaning to the law relevant to this matter. 

Until a mortgage is foreclosed and a sale consummated, or 

until a mortgagee obtains possession by ejectment 

proceedings, the fee to mortgaged real estate remains in the 

mortgagor. See Levin v. Carney, 161 Ohio St. 513 (1954). 

Consequently, when a mortgagor defaults on the mortgage, 

legal title passes to the mortgagee only as between the 

mortgagor and the mortgagee. Hausman * * *. This 

limiting language is most significant because as to the rest of 

the world, title remains in the mortgagor until the mortgagee 

forecloses on the mortgage and the sale consummated, the 

mortgagee recovers possession [on] the property by ejectment 

proceedings, or the mortgagee otherwise extinguishes the 

right of the mortgagor to redeem. 

(Emphasis sic.) (Mar. 27, 2017 Jgmt. Entry at 8-9.) 

{¶ 16} Applying the authorities cited above, the probate court held that, as between 

appellant and the ward, upon the ward's default, legal title passed to appellant "subject to 

[the ward's] equitable right of redemption. However, as between [the ward] and the rest 

of the world which would include a purchaser of this real estate, [the ward] retains both 

legal and equitable fee ownership." Further, noting that "both legal and equitable 

ownership stay with the mortgagor until the real estate is foreclosed and sale 

consummated which has not occurred in this case," the probate court concluded that, as 

between the ward "and a potential purchaser of this real estate [the ward] does hold both 

equitable and legal title to the real estate and may pass such title through a guardian sale 

pursuant to R.C. 2127.05." 
No. 17AP-294 6 

{¶ 17} In its decision, the probate court relied primarily on two Supreme Court of 

Ohio decisions, Levin v. Carney, 161 Ohio St. 513 (1954), and Hausman v. Dayton, 73 

Ohio St.3d 671 (1995). The Supreme Court in Levin, characterizing a mortgage of real 

property as "a mere security for a debt," held that "[t]he legal and equitable title to 

mortgaged real estate remains in the mortgagor so long as the condition of the mortgage 

remains unbroken," but that after such condition is broken "the legal title as between the 

mortgagee and mortgagor is vested in the mortgagee, subject to the equity of 

redemption." Id. at 520. The court further held that "until a mortgage is foreclosed and a 

sale consummated, or until a mortgagee obtains possession by ejectment proceedings, the 

fee to mortgaged real estate * * * remains in the mortgagor." Id. 

{¶ 18} The Supreme Court in Hausman, in following its holding in Levin, held in 

part: "After a mortgagor defaults, legal title passes to the mortgagee only as between the 

mortgagor and the mortgagee." Id. at paragraph one of the syllabus. However, "[a]s to 

the rest of the world, title remains in the mortgagor until the mortgagee forecloses on the 

mortgage and the sale is consummated, the mortgagee recovers possession of the 

property by ejectment proceedings, or the mortgagee otherwise extinguishes the right of 

the mortgagor to redeem." Id. 

{¶ 19} Upon review, we conclude the probate court correctly determined the fee 

remained in the ward at the time of the filing of the complaint. Under Ohio law, a 

mortgage "merely secures the payment of a debt by creating a lien." Adams v. Bankers 

Trust Co., 2d Dist. No. 25703, 2014-Ohio-231, ¶ 5 (distinguishing between a mortgage 

interest and an ownership interest, and noting that a mortgage "does not transfer 

ownership to the mortgage holder"). Here, the probate court, applying Levin and 

Hausman, and noting that a foreclosure and sale "has not occurred in this case," properly 

recognized that, upon default, legal title passes to the mortgagee (appellant) only as 

between the mortgagor and mortgagee (subject to the equitable right of redemption), but 

that as to the rest of the world, even upon default, legal title remains in the mortgagor (the 

ward) until the mortgagee forecloses and the sale is consummated, the mortgagee 

recovers possession by ejectment proceedings, or the mortgagee otherwise extinguishes 

the right of the mortgagor to redeem. Hausman at paragraph one of the syllabus. See 

also Stand Energy Corp. v. Epler, 163 Ohio App.3d 354, 2005-Ohio-4820 ¶ 13 (10th 
No. 17AP-294 7 

Dist.), citing Hausman at 675-76 ("in Ohio, a mortgage is merely a security for a debt, and 

the legal and equitable title to the property remains in the mortgagor until the mortgage is 

foreclosed and a sale consummated, or until a mortgagee otherwise extinguishes the right 

of the mortgagor to redeem"). Upon review, we conclude the probate court did not err in 

rejecting appellant's contention that the ward was divested of legal ownership at the time 

the guardian filed the complaint seeking authority to sell the ward's real estate. 

{¶ 20} Appellant next contends the probate court could only authorize the sale of 

mortgaged land with the mortgagee's consent based on the language of R.C. 2127.20, 

which states: "The probate court, with the consent of the mortgagee, may authorize the 

sale of lands subject to mortgage, but the giving of any such consent shall release the 

estate of the decedent or ward should a deficit later appear." According to appellant's 

interpretation of R.C. 2127.20, the mortgagee retains the same rights with respect to a 

guardian's attempts to sell the property as it had with the ward, including the right to 

refuse to consent to any sale. 

{¶ 21} We note that appellant's argument involves issues not raised in its 

objections to the magistrate's decision. Specifically, nowhere in its objections before the 

probate court does appellant argue the mortgagee's "consent" was required prior to the 

probate court's order of sale. 

{¶ 22} In general, "by failing to raise an issue to the trial court, an appellant forfeits 

that issue on appeal." Bahgat v. Kissling, 10th Dist. No. 17AP-641, 2018-Ohio-2317, ¶ 32. 

It is, however, "within the appellate court's discretion to consider forfeited issues for plain 

error." Id. Further, "except for a claim of plain error, a party may not assign as error on 

appeal the trial court's adoption of any finding of fact or legal conclusion unless the party 

has objected to that finding." Id., citing Civ.R. 53(D)(3)(b)(iv).1 In applying the doctrine 

of plain error "in a civil case, 'reviewing courts must proceed with the utmost caution, 

limiting the doctrine strictly to those extremely rare cases where exceptional 

circumstances require its application to prevent a manifest miscarriage of justice.' " 

Woods Cove III, L.L.C. v. Am. Guar. Mgt. Co., L.L.C., 8th Dist. No. 105494, 2018-Ohio-

 

1 Civ.R. 53(D)(3)(b)(iv) states: "Except for a claim of plain error, a party shall not assign as error on appeal 

the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding 

or conclusion as required by Civ.R. 53(D)(3)(b)." 
No. 17AP-294 8 

1829, ¶ 24, quoting Glendell-Grant v. Grant, 8th Dist. No. 105895, 2018-Ohio-1094, ¶ 17, 

citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997). We further note that appellant 

does not argue plain error on appeal, i.e., appellant does not acknowledge failure to raise 

the issue of "consent" in its objections before the probate court. 

{¶ 23} Appellant argues before this court that a review of certain provisions of R.C. 

Chapter 2127 (i.e., R.C. 2127.18 through 2127.20) makes clear a probate court is not 

authorized to allow guardians to sell mortgaged property where the mortgagee does not 

consent to the sale. In response to appellant's argument, appellee contends appellant's 

interpretation of R.C. 2127.20 is erroneous and that consent is only at issue where the 

guardian seeks to sell the property to a purchaser subject to the existing mortgage. 

{¶ 24} Several provisions of R.C. Chapter 2127 address the probate court's 

authority with respect to a sale. R.C. 2127.18 provides for the probate court to "determine 

the equities among the parties and the priorities of lien of the several lien holders on the 

real estate, and order a distribution of the money arising from the sale in accordance with 

its determination." R.C. 2127.19 addresses the release of liens and satisfaction of all 

mortgages, and states in part: "When an action to obtain authority to sell real estate is 

determined by the probate court, the probate judge shall make the necessary order for an 

entry of release and satisfaction of all mortgages and other liens upon the real estate 

except the mortgage that is assumed by the purchaser." As previously cited, R.C. 2127.20 

provides that the probate court, with consent of the mortgagee, may authorize the sale of 

lands "subject to" mortgage, but that the giving of such consent shall release the ward 

should a deficit later appear. R.C. 2127.38 provides for the distribution of the proceeds of 

the sale of real estate by an executor or guardian, and that provision "sets forth the 

priority given to judgment liens from sale proceeds." In re Estate of Durr, 11th Dist. No. 

92-P-0029 (Sept. 30, 1992). Further, where an executor or guardian sells real estate for 

the payment of debts, "judgment liens and mortgages * * * must be paid from the 

proceeds of the sale prior to the application of such proceeds to the payment of other 

claims and debts of the estate, except for the payment of costs and expenses in the sale 

and administration." Id. 

{¶ 25} Based on a review of the relevant statutory provisions, we agree with 

appellee that, in context, R.C. 2127.20 appears directed to a situation where a guardian 
No. 17AP-294 9 

seeks to sell the property "subject to" the existing mortgage (i.e., where a purchaser steps 

into the shoes of the mortgagor and continues payment of the loan obligation originally 

executed between the mortgagor and mortgagee), and the consent of the mortgagee acts 

as a release of the ward should a deficit later appear. As further argued by appellee, under 

such interpretation, the probate court would not need the mortgagee's consent to 

authorize the sale of real estate where the purchaser is not taking title to the real estate 

subject to the mortgage lien present on the property. As set forth above, R.C. 2127.19 

provides for the probate court to make the necessary order for an entry of release and 

satisfaction of "all mortgages." Accordingly, we find unpersuasive appellant's contention 

that the provisions of R.C. Chapter 2127 unambiguously prevent the probate court from 

authorizing the guardian to sell real estate of the ward in the absence of consent. 

{¶ 26} Appellant further contends the probate court improperly authorized the sale 

because it was not in the best interest of the ward and would cause her harm. According 

to appellant, the evidence indicates the guardian's sale will not produce surplus funds for 

the ward's care. 

{¶ 27} The probate court addressed and rejected appellant's argument on this 

issue, holding in part: 

[The ward] is not harmed by a sale even if the sale results in 

an amount insufficient to pay all of the debts because 

whatever proceeds are in existence will be used to pay costs 

and expenses of sale first, then taxes and assessments, then 

whatever is left to the lien holder or holders. R.C. 2127.19 

provides for the discharge of the mortgage after 

disbursements are correctly made in accordance with R.C. 

2127.38. In this case, the amount of sale proceeds paid to [the 

ward] will be irrelevant. As for the argument that [the ward] 

is damaged because she will have no proceeds from sale for 

her care, just the opposite is true. Sale of the property will 

allow [the ward] to qualify for Medicaid benefits which she 

needs for her care. 

(Mar. 27, 2017 Jgmt. Entry at 7.) 

{¶ 28} During the hearing before the magistrate, the guardian testified that the 

ward was currently residing at a nursing care facility, and that she has "been on Medicaid 

* * * since July or August of last year." (Tr. at 10.) The guardian further testified: "I do 

not believe she will be able to return to her home." (Tr. at 10.) The guardian represented 
No. 17AP-294 10 

the ward was unable to pay the real estate taxes or insure the property, and that 

ownership of the property would jeopardize her continued qualification for Medicaid. 

{¶ 29} As noted, R.C. 2127.05 provides that a guardian may commence an action to 

sell the property of the ward when necessary for the "support, or the payment of the just 

debts of the ward," for "the discharge of liens on the real property of the ward," whenever 

the ward's property "is suffering unavoidable waste, or a better investment of its value can 

be made," or "whenever it appears that a sale of the real property will be for the benefit of 

the ward or the ward's children." Here, the probate court found the sale would be in the 

best interest of the ward, and we conclude the record supports the probate court's 

determination that the ward's continued eligibility for Medicaid constituted a benefit to 

her in accordance with R.C. 2127.05. Accordingly, appellant has failed to show the 

probate court abused its discretion in finding the sale of the real estate to be in the ward's 

best interest. 

{¶ 30} Upon review of the record, we find the probate court did not err in 

overruling appellant's objections to the magistrate's decision and in ordering the sale of 

the ward's property. Based on the foregoing, appellant's single assignment of error is 

overruled, and the judgment of the Franklin County Court of Common Pleas, Probate 

Division, is affirmed. 

Judgment affirmed. 

LUPER SCHUSTER, J., concurs. 

DORRIAN, J., concurs in judgment only. 

____________________