How do I Stop a Sheriff's Sale in Ohio?
While it is always more beneficial to defend the foreclosure lawsuit before a sheriff's sale is ever scheduled, this post addresses what to do if the sheriff’s sale is on the horizon. If you are not sure when that might occur, we published a detailed foreclosure timeline here. This foreclosure timeline gives you an idea of how long the foreclosure process will take, including the sheriff's sale.
Outside of bankruptcy, stopping a foreclosure sale in Ohio requires a judge’s order. Bankruptcy automatically halts all creditor actions and will freeze the foreclosure case preventing the sheriff’s sale. If you want to avoid filing bankruptcy, then you must seek relief from the judge presiding over the foreclosure action, which means presenting a strong legal basis for reopening the case. Or, you might be able to stop the sale by applying for a loan modification, which is discussed in greater detail below.
While we discuss several options below, the only guaranteed way of stopping a sheriff’s sale in Ohio is to file bankruptcy. Both Chapter 7 (total release of debts) and Chapter 13 (repayment plan lasting 3 to 5 years) provide for an immediate halting of all creditor actions, including stopping a foreclosure sheriff’s sale. The sheriff sale is stopped the very minute you file your bankruptcy petition, even if that filing is the morning of the sheriff sale (just make sure you file a notice with the foreclosure court).
If bankruptcy is not an option for you, then you will need to file motions with the Ohio state court judge to stop the sheriff’s sale. There are several kinds of motions available to you, and which one you use is a factor of where you are in the foreclosure process. The Civil Rule that governs will likely be 60(B), which is discussed more below.
You need to know the following first. In Ohio, a sheriff’s sale means the mortgage company filed a foreclosure lawsuit against you and obtained judgment on the note and mortgage. If you need to know when that occurs, we put together this timeline for you.
The sheriff sale is merely a procedural mechanism to enforce the foreclosure judgment. This means that the underlying judgment should be addressed in any motion you file to stop a sheriff’s sale. This kind of motion is where you tell the legal reasons to the judge why the underlying judgment needs to be undone. It is not an opportunity to tell the court the circumstances or hardship that caused you to stop making payments (unless it was the bank’s fault). You must raise a foreclosure defense in order to win this motion. Find those here.
While you may have a truly heart-wrenching story, the judge will be obligated to keep the sale in place unless you can show some legal reason or procedural defect that requires the judge reopen your case. Again, you will need a foreclosure defense to win that argument.
If you were working directly with your mortgage company and it promised you a loan modification that never materialized, this might help your case. However, describing your job loss or health issues – while completely good reasons why you couldn’t make payments – will generally not win the day. A better reason would be that the underlying judgment is void because the bank did not own the note, or some other reason that goes to jurisdiction of the court. Getting a judgment reversed requires a decent amount of technical knowledge. It is why we recommend finding a good attorney if you hope to stop the sheriff's sale.
Can I file an appeal to stop the sheriff's sale?
Filing an appeal is generally not a good enough reason to stop a sheriff’s sale. One major reason for it not being helpful is that an appeal is generally all about the judgment that was put into place - not the sheriff's sale. The foreclosure judgment is what is attacked in an appeal, not the fact that the sheriff's sale was scheduled.
Further, the appeal must be taken within 30 days of the date of judgment in order to be valid. If you do not appeal within that time period, then you must again look to a 60(B) motion, which requires a foreclosure defense. You must have one of these.
In the event that you successfully file a "Notice of Appeal" within the correct time period, then you may ask the judge to stop the sheriff's sale. First you have to ask the judge that already ruled against you before you can ask the court of appeals for that same relief. The motion you file is called a “Motion to Stay Execution of Judgment.” You can find one of those on our download page here.
Ohio judges have very wide discretion in whether to grant stays to stop any sheriff sale. Many times the court will require you post a bond in order to stop the sale. As you will find out, surety bond companies generally want 100% cash collateral for the bond. This means you probably must have cash for the entire amount of the bond. You will find some judges allow for very low bonds, other judges extremely high bonds, and yet others may waive this requirement. Attorneys who regularly work in this area can give you a good idea of what you can expect on this front.
What Motion can I file in hopes of reversing the judgment and stopping the sheriff's sale?
To stop a sheriff's sale without an appeal or bankruptcy, you will need to find another legal reason why the sale should be stopped. This requires a foreclosure defense, as described here. This generally requires that you attack the underlying judgment or seek to have the judgment reversed. We would recommend you contact an attorney because this can get complicated. If you're set on doing it alone, the procedural mechanism in Ohio to reopen the case is a “Motion for Relief From Judgment” pursuant to Ohio Civil Rule of Procedure 60(B).
Civil Rule 60(B), as analyzed by the Supreme Court of Ohio, requires you show three things: 1. That you state one of the grounds under Rule 60(B), such as excusable neglect under 60(B)(1); 2. That you show a meritorious defense or claim is available to you if the judgment is reversed; and 3. That your motion for relief from judgment is timely. All three things must be addressed in your motion in order to win this motion. Our law firm's foreclosure defense attorneys regularly files these for those clients who need our help reopening a case.
Any motion for relief from judgment needs to contain all three arguments, as leaving one out is grounds to have your motion denied. In addition to this kind of motion, you will probably want to file the above referenced “Motion to Stay Execution of Judgment.” You should argue that the sale should be stopped until the court rules on your motion under Rule 60(B) for relief from judgment. Sometimes the judge will stop the sale and allow it to be rescheduled later, if the judge rules against your 60(B) motion for relief from judgment.
Is there anything else I can do to stop a sheriff's sale?
Yes, because federal law recently changed. Since the federal law RESPA recently changed, there is an additional method you can use to stop a sheriff's sale. Federal law now says that if you submit a completed loan modification package to your mortgage servicer at least 37 days before the sale, then your servicer must stop the sheriff's sale until it has responded to that request. Check out Everything You Need to Know About Loan Modifications.
There is an important note on that law. In our experience, most mortgage companies tend to ignore it completely. It is very frustrating for people to lose there homes to such a blatant violation of federal law, but it happens regularly. For whatever reason, some banks just do not care about helping people stay in their homes. If that happens to you, you should immediately contact a law firm like Doucet to help. The federal law does provide for damages and attorneys fees, and we have recovered thousands and thousands of dollars for our clients who lost their homes to such nonsense. See our availability for a free consultation here.
That is great information! Anything else?
There may be other motions that are appropriate in your case, depending on the circumstances present in your matter. For example, if you were not served the lawsuit it accordance with Ohio law, you might be able to claim lack of personal jurisdiction. That can be a powerful reason for a judge to grant you relief from judgment and stop the sheriff’s sale. Similarly, if the property is actually located in a different county, that can be nearly an absolute reason to reopen the case and stop a sheriff’s sale.
If you need a sheriff sale stopped immediately, you should contact one of our lawyers as soon as you finish reading this post because time is of the essence. Our lawyers will need to meet with you this week. We will need to gather documents and information from you, then write and file the motion(s). The faster you can get a motion before your Ohio judge, the more time that the judge has to review it and issue a decision. Hopefully that decision includes stopping the sheriff's sale for you! Schedule your free consultation now.
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