[Cite as State ex rel. US Bank Trust, Natl. Assn. v. Trumbull Cty., Bd. of Commrs., 2022-Ohio-1817.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY

STATE OF OHIO, ex rel.

US BANK TRUST, NATIONAL 

ASSOCIATION, AS TRUSTEE 

OF AMERICAN HOMEOWNER 

PRESERVATION TRUST 

SERIES 2015A+,

Relator,

- v -

TRUMBULL COUNTY, OHIO

BOARD OF COUNTY 

COMMISSIONERS,

Respondent.

CASE NO. 2021-T-0023

Original Action for 

Writ of Mandamus

P E R C U R I A M

O P I N I O N

Decided: May 31, 2022

Judgment: Petition dismissed

Marc E. Dann and Andrew M. Engel, Advocate Attorneys, LLP, 1629 K Street N.W., 

Suite 300, Washington, DC 20006 (For Relator).

Lynn B. Griffith, III, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High 

Street, N.W., Warren, OH 44481, and Stephen W. Funk, Roetzel & Andress, LPA, 222 

South Main Street, Suite 400, Akron, OH 44308 (For Respondent).

PER CURIAM.

{¶1} Before this court is relator, US Bank Trust, National Association’s, 

Complaint for Writ of Mandamus, construed as a petition for mandamus. Respondent, 

Trumbull County Board of Commissioners, has filed a Motion to Dismiss, pursuant to 
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Civ.R. 12(B)(6), claiming that US Bank lacks standing and has failed to establish the 

essential elements of a mandamus claim under the law. For the following reasons, US

Bank’s Complaint is dismissed.

{¶2} On May 11, 2021, US Bank filed its Complaint for Writ of Mandamus. US 

Bank requests that this court issue a writ compelling respondent to “initiate appropriation

proceedings pursuant to Ohio Revised Code Chapter 163.” 

{¶3} According to US Bank’s Complaint and attached court records, in 2002, 

Julius Hughley executed a mortgage in the amount of $27,000 for a property located at 

1244 Pearl Street in Warren, Ohio, with the lender, ABN AMRO Mortgage Group. A tax 

foreclosure case was instituted by the Trumbull County Treasurer against Hughley in 

Trumbull County Court of Common Pleas Case No. 2017CV378 on March 2, 2017, to 

collect delinquent real estate taxes on the subject property in the amount of $2,340.43. 

At that time, a balance of $26,132.88 remained due on the note and mortgage, which had 

been assigned to Biltmore Funding, LLC. Biltmore was named as a defendant and served 

with a summons and copy of the complaint.

{¶4} On June 27, 2017, the Trumbull County Court of Common Pleas issued a 

Finding and Decree of Court in which it ordered foreclosure of the property. It set forth 

that unless the defendants caused to be paid to the treasurer the amount due within 28 

days of the entry, all rights would be foreclosed and the parcel would be transferred to 

the Trumbull County Land Reutilization Corporation (“Land Bank”) “free and clear of all 

liens and encumbrances.” No payment was made. On September 26, 2017, the 

mortgage was assigned from Biltmore to Janet Northrup, Chapter 7 Trustee of the 

Bankruptcy Estate of 3 Star Properties, LLC. The mortgage was then assigned to US 
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Bank on October 10, 2017, and the assignment was recorded on November 13, 2017. A 

Sheriff’s Deed was issued January 31, 2018, transferring the subject property to the Land 

Bank. 

{¶5} In its Complaint, US Bank argues that the direct transfer of the property to 

the Land Bank without compensation for the value of the mortgage constituted a taking 

in violation of the Fifth and Fourteenth Amendments to the United States Constitution and 

Article I, Section 19 of the Ohio Constitution (“where private property shall be taken for 

public use, a compensation therefor shall first be made in money”). It contends that the 

respondent failed to fulfill its duties to commence an appropriation proceeding to prove 

the propriety of the taking and pay just compensation, since the fair market value of the 

property exceeded the delinquent taxes owed. 

{¶6} The Board of Commissioners filed a Motion to Dismiss on June 23, 2021, 

in which it argues that US Bank does not have standing because it did not own the 

property when the court ordered it transferred to the Land Bank. The Board further argues 

that there was an adequate remedy by way of law through an appeal or counterclaim in 

the prior proceedings. Finally, the Board contends it had no clear legal duty to commence 

an appropriation proceeding because the property was lawfully acquired under an 

exercise of governmental authority pursuant to R.C. 323.78.

{¶7} “Mandamus is a writ, issued in the name of the state to an inferior tribunal, 

a corporation, board, or person, commanding the performance of an act which the law 

specially enjoins as a duty resulting from an office, trust, or station.” R.C. 2731.01. “To 

be entitled to a writ of mandamus, the relator must be able to prove that: (1) he has a 

clear legal right to have a specific act performed by a public official; (2) the public official 
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has a clear legal duty to perform that act; and (3) there is no legal remedy that could be 

pursued to adequately resolve the matter.” State ex rel. Vance v. Kontos, 11th Dist.

Trumbull No. 2014-T-0078, 2014-Ohio-5080, ¶ 9. “Under Ohio law, ‘[m]andamus is the 

appropriate action to compel public authorities to institute appropriation proceedings 

where an involuntary taking of private property is alleged.’” State ex rel. Cuyahoga 

Lakefront Land, L.L.C. v. Cleveland, 148 Ohio St.3d 531, 2016-Ohio-7640, 71 N.E.3d 

1016, ¶ 13, citing State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958

N.E.2d 1235, ¶ 53. 

{¶8} A relator seeking a writ of mandamus must prove entitlement to the writ by 

clear and convincing evidence. State ex rel. Ward v. Reed, 141 Ohio St.3d 50, 2014-

Ohio-4512, 21 N.E.3d 303, ¶ 10. “A court can dismiss a mandamus action under Civ.R. 

12(B)(6) for failure to state a claim upon which relief can be granted if, after all factual 

allegations of the complaint are presumed true and all reasonable inferences are made 

in the relator’s favor, it appears beyond doubt that he can prove no set of facts entitling 

him to the requested writ of mandamus.” State ex rel. Nyamusevya v. Hawkins, 165 Ohio

St.3d 22, 2021-Ohio-1122, 175 N.E.3d 495, ¶ 10, citing State ex rel. Russell v. Thornton,

111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 9.

{¶9} Both parties indicate in their respective filings that the foreclosure was 

brought pursuant to R.C. 323.65 et seq., which sets forth a procedure for foreclosure of 

a lien for real estate taxes on abandoned properties. The Complaint filed in the Court of 

Common Pleas initiating the tax foreclosure action requests an order that the property be 

sold “in the manner provided in 5721.19 of the Ohio Revised Code.” 

{¶10} R.C. 5721.18 et seq. sets forth the procedure for seeking foreclosure on 
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“delinquent lands,” “all lands * * * upon which delinquent taxes, as defined in section

323.01 of the Revised Code, remain unpaid at the time a settlement is made between the 

county treasurer and auditor.” R.C. 5721.01(A)(1). Pursuant to R.C. 5721.18, the 

prosecuting attorney shall institute foreclosure proceedings in the court or board of 

revision upon receipt of a delinquent land tax certificate. R.C. 323.66(A) provides that, 

“[i]n lieu of utilizing the judicial foreclosure proceedings and other procedures and 

remedies available * * * under Chapter 5721. * * * of the Revised Code, a county board 

of revision created under section 5715.01 of the Revised Code, upon the board’s 

initiative, expressed by resolution, may foreclose the state’s lien for real estate taxes upon 

abandoned land,” defined as “delinquent lands * * * that are unoccupied and that * * * 

appeared on the list compiled under division (C) of section 323.67 of the Revised Code, 

or the delinquent tax list or delinquent vacant land tax list compiled under section 5721.03

of the Revised Code.” R.C. 323.65(A). R.C. 323.78(A) and (B) provide that “a county 

treasurer may elect to invoke the alternative redemption period in any petition for 

foreclosure of abandoned lands under * * * sections 323.65 to 323.79, or section 5721.18

of the Revised Code” which, if invoked, allows that the parcel may be transferred directly 

by deed to a county land reutilization corporation free and clear of all liens upon the 

expiration of the 28-day period.

{¶11} We first address the Board’s assertion that this matter should be dismissed 

due to lack of standing. The Board argues that US Bank lacks standing because it did 

not have an interest in the property during the tax foreclosure action or at any time before 

a final judgment of foreclosure was entered. US Bank responded by asserting that it was 

assigned the rights to the mortgage and thus has the right to enforce its interest in the 
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property.

{¶12} “It is well established that before an Ohio court can consider the merits of a 

legal claim, the person seeking relief must establish standing to sue.” State ex rel. Ohio

Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 469, 715 N.E.2d 1062 (1999).

“The concept of ‘standing’ involves whether the plaintiff to a civil action has alleged such 

a personal stake in the outcome of the controversy that he or she is entitled to have a 

court hear the case.” Progressive Macedonia, LLC v. Shepherd, 11th Dist. Trumbull No. 

2020-T-0036, 2021-Ohio-792, ¶ 59; Clifton v. Blanchester, 131 Ohio St.3d 287, 2012-

Ohio-780, 964 N.E.2d 414, ¶ 15. “Under the basic doctrine of standing, a person will not 

be deemed a ‘real party in interest’ simply because he claims to be concerned about an 

action’s subject matter; instead, he must be in a position to sustain either a direct benefit 

or injury from the resolution of the case.” Lager v. Plough, 11th Dist. Portage No. 2006-

P-0013, 2006-Ohio-2772, ¶ 7, citing State ex rel. Village of Botkins v. Laws, 69 Ohio St.3d

383, 387, 632 N.E.2d 897 (1994).

{¶13} The Eighth District has addressed the issue of standing in a proceeding for 

mandamus by US Bank alleging the same issue here, that “the transfer of the subject 

property to the Land Bank without public sale constitutes a taking of relator’s property 

interest without just compensation.” State ex rel. US Bank Trust Natl. Assn. v. Cuyahoga

Cty., 8th Dist. Cuyahoga No. 110297, 2021-Ohio-2524, ¶ 1. In US Bank, the mortgage 

was assigned to US Bank after the institution of the foreclosure proceedings but prior to 

the issuance of a decree of foreclosure. The appellate court emphasized that, pursuant 

to the doctrine of lis pendens, i.e., the principle that “one who acquires an interest in the 

property during the pending lawsuit ‘takes subject to the judgment or decree, and is as 
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conclusively bound by the result of the litigation as if he had been a party thereto from the 

outset,’” the prior mortgage holder can “alienate its interest in the property to another, but 

the other party takes subject to the pending action and is bound by the results.” Id. at ¶ 

9. Since the lien was extinguished through the foreclosure action and US Bank and/or 

the predecessor lost their interest in the property, standing could not be established due 

to a lack of an injury traceable to the unlawful conduct of a defendant/respondent. Id. at 

¶ 12. As the court emphasized, since property interest was extinguished in a valid 

foreclosure action, US Bank did not possess an interest in the property that could be 

redressed in a mandamus action. Id. at ¶ 13. See also State ex rel. R.T.G., Inc. v. State, 

141 Ohio App.3d 784, 794, 753 N.E.2d 869 (10th Dist.2001), rev’d in part on other

grounds, 98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d 998 (“since compensation is due 

at the time of the taking, the owner at that time, not the owner at an earlier or later date” 

is entitled to compensation). 

{¶14} Although somewhat different procedurally, the foregoing principles apply 

here as well. The common pleas court issued a judgment in foreclosure against the 

property on the tax lien on June 27, 2017, ordering a 28-day period of redemption after 

which time the parcel would be transferred to the Trumbull County Land Reutilization 

Corporation and that all liens and interests recorded after March 2, 2017, were “forever 

barred.” The mortgage was assigned to US Bank on October 10, 2017. It is undisputed 

that US Bank’s predecessor failed to take action to dispute the foreclosure proceedings 

although it was properly given notice and made part of such proceedings. US Bank chose 

to purchase a mortgage on a property that had already been foreclosed upon and which 

the court had ordered all liens and interests filed after March 2, 2017, were extinguished. 
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It should not be entitled to relief simply because it was unable to appear in the 

proceedings prior to foreclosure. The argument that US Bank should be permitted to 

raise these issues several years after the foreclosure proceedings fails to comport with 

logic; this would allow the reassignment of mortgages after foreclosure in an attempt to 

litigate the action anew when a prior party failed to do so, dragging proceedings out 

indefinitely. 

{¶15} US Bank argues that the following mortgage provision applies to provide 

standing: “All Miscellaneous Proceeds are hereby assigned to and shall be paid to 

Lender.” Such proceeds are defined as “any compensation, settlement, award of 

damages, or proceeds paid by any third party * * * for * * * condemnation or other taking 

of all or any part of the Property * * *.” In considering the same clause, the Eighth District 

held that “[t]he right assigned in the mortgage was a contractual right to funds between 

the mortgagee and mortgagor. * * * Even if provisions of the mortgage are still 

enforceable as between the parties to the mortgage after foreclosure, the assignment of 

proceeds does not necessarily lead to the conclusion that US Bank has a possessory 

interest in the property at issue or even a contingent interest.” US Bank at ¶ 15. While 

US Bank emphasizes that the right to compensation for a taking can survive foreclosure, 

there is a process to address this through foreclosure proceedings which was not followed 

here, as will be addressed below.

{¶16} Nonetheless, even presuming that US Bank has standing to bring the 

present action, we find that there was an adequate remedy at law precluding relief in 

mandamus. 

{¶17} The issue raised by US Bank has been addressed in mandamus actions 
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filed in several Ohio appellate courts. In each case, the court has determined that relief 

cannot be sought through an action in mandamus due to the existence of an adequate 

remedy at law and/or because there was no clear legal right to such relief. US Bank,

2021-Ohio-2524; State ex rel. US Bank Trust, Natl. Assn. v. Summit Cty., 9th Dist. Summit 

No. 29889, 2021-Ohio-3189; State ex rel. US Bank v. Lucas Cty., 6th Dist. Lucas No. L21-1087 (Aug. 5, 2021). The Eighth District emphasized that, in “the absence of a statute 

or constitutional provision providing otherwise, it is not an unconstitutional taking of 

property when a government retains proceeds above the amount of delinquent taxes, 

penalties, and interest in a tax foreclosure proceeding.” US Bank, 2021-Ohio-2524, at ¶ 

18, citing Nelson v. New York, 352 U.S. 103, 77 S.Ct. 195, 1 L.Ed.2d 171 (1956), 

paragraph three of the syllabus (“Appellants not having taken timely action to secure the 

relief available under the statute although adequate steps were taken to notify them of 

the charges due and the foreclosure proceedings, * * * nor was their property taken 

without just compensation by reason of the City’s retention * * * of the proceeds of sale * 

* *.”). Further, it concluded that “[b]y not participating in the foreclosure proceeding and 

appealing the final determination, US Bank’s interest in the property was extinguished, 

and [the owner’s] interest in the property above the taxes owed, to which US Bank now 

claims a right, could have been fully litigated and determined in an appeal to the common 

pleas court. Therefore, this court declines to issue a writ of mandamus to belatedly 

address these issues.” Id. at ¶ 33.

{¶18} Similarly, the Ninth District held that alternate remedies to seeking a writ of 

mandamus were available in a case involving tax foreclosure proceedings leading to 

transfer of the property to the Land Bank, including participation in the foreclosure
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proceedings before the board of revision and seeking a subsequent appeal. It further 

noted that “[a]lthough those remedies are no longer available, that does not mean the 

remedies are inadequate.” US Bank, 2021-Ohio-3189, at ¶ 23-25.

{¶19} The Sixth District held that, where the predecessor in interest, which held

the mortgage during the tax foreclosure proceedings, was properly served with a 

complaint, received notifications during the proceedings, and failed to request transfer of 

the proceedings to the court of common pleas or an appeal, there was “a plain and 

adequate remedy at law for protecting its security interest in the subject property” that 

was not utilized. US Bank, 6th Dist. Lucas No. L-21-1087, at ¶ 19, 21. It emphasized 

that it was “inaction, not the lack of available legal remedies, [which] caused the financial 

loss that relator now wishes to address in mandamus.” Id. at ¶ 21. It also determined 

that “the relator’s rights in the subject property are limited to those held by [the 

predecessor bank] at the time of its assignment of the mortgage, which occurred after the 

subject property was transferred to the Land Bank,” emphasizing that “as an assignee, 

relator [is] ‘stand[ing] in the shoes of the assignor with respect to the subject of the 

assignment, having the same rights and remedies.’” Id. at ¶ 18, citing Star Bank Natl.

Assn. v. Cirrocumulus Ltd. Partnership, 121 Ohio App.3d 731, 748, 700 N.E.2d 918 (8th 

Dist.1997).

{¶20} We emphasize in the present matter that the factual circumstances of this 

case are slightly different than in those discussed above, as they involved a tax 

foreclosure proceeding before the board of revision and subsequent appellate procedures 

to the court of common pleas. We find, however, that the logic applies to the present 

situation as well. Here, foreclosure proceedings were instituted in the Trumbull County 
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Court of Common Pleas and a subsequent appeal, if filed, would have occurred in this 

court. The holder of the mortgage at the time foreclosure proceedings were initiated was 

Biltmore Funding, and there is no dispute that it was served with the complaint, given 

notice of the proceedings, and had the right of redemption. Biltmore failed to object or 

otherwise take action in the trial court proceedings and did not appeal the foreclosure, 

although it was entitled to do so as a lienholder. See In re Foreclosure of Liens for

Delinquent Taxes, 79 Ohio App.3d 766, 607 N.E.2d 1160 (2d Dist.1992). Thus, the 

predecessor had the ability to fully litigate issues relating to the alleged taking. U.S. Bank, 

6th Dist. Lucas No. L-21-1087, at ¶ 18. As stated above, we find no authority for the 

proposition that US Bank should now be able to raise issues relating to the alleged taking 

several years later in mandamus proceedings.

{¶21} The Board also argues that this matter should be dismissed because US 

Bank failed to demonstrate a clear legal duty for the Board to commence appropriation

proceedings for an alleged taking. As the mandamus action is properly dismissed on the 

grounds outlined above, it is unnecessary to address the merits of this argument.

{¶22} For the foregoing reasons, respondent’s Motion to Dismiss is granted and 

U.S. Bank’s Complaint for Writ of Mandamus is dismissed. 

THOMAS R. WRIGHT, P.J., MARY JANE TRAPP, J., MATT LYNCH, J., concur.