Feinstein v. Rogers

• Decision Date: 14 May 1981
• Citation: 2 Ohio App.3d 96,440 N.E.2d 1207
• Parties: , 2 O.B.R. 109 FEINSTEIN, Appellee, v. ROGERS, Appellant; BancOhio et al., Appellees.
• Court: Ohio Court of Appeals

Page 96

2 Ohio App.3d 96

440 N.E.2d 1207, 2 O.B.R. 109

FEINSTEIN, Appellee, v. ROGERS, Appellant;

BancOhio et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

May 14, 1981.

Syllabus by the Court

1. R.C. 2329.02 is intended to create a specific lien upon the lands and tenements of the judgment debtor which lie within the county at the time there is filed in the office of the clerk of the court of common pleas of such county a certificate of judgment. The lien applies specifically to all such property identified as belonging to the judgment debtor at the time of the filing of the certificate and may be enforced as a specific lien pursuant to R.C. 2323.07 by a foreclosure action.

2. A judgment creditor may elect to enforce a judgment against a judgment debtor by either of the alternative methods provided by R.C. Chapter 2323 or R.C. Chapter 2329.

Riley, Ucker & Lavinsky, Timothy J. Ucker and Richard A. Lavinsky, Columbus, for plaintiff-appellee.

John A. Yaklevich, Columbus, for defendant-appellant.

James D. MacAulay, Columbus, for defendant-appellee Park Federal S. & L. Assn.

Roland T. Gilbert, Columbus, for defendant-appellee BancOhio Natl. Bank.

Michael Miller, Pros. Atty., Keith Henry and Harry Lewis, Columbus, for defendants-appellees, Dana Rinehart, Franklin County Treasurer, and Thomas J. Enright, Franklin County Clerk of Courts.

McCORMAC, Judge.

Plaintiff-appellee filed a foreclosure action to sell real estate owned by defendant-appellant and located in Franklin County, Ohio, for the purpose of satisfying a judgment lien resulting from a money judgment against defendant-appellant, after which a certificate of judgment was filed pursuant to R.C. 2329.02. Defendant-appellant Carol Rogers answered, admitting that she was the owner of the real property described in the complaint and denying all other allegations.

A motion for summary judgment was filed on behalf of plaintiff-appellee, supported by affidavits and documents. The trial court granted summary judgment and Carol Rogers has appealed, setting forth the following assignment of error:

"The trial court erred in ruling that plaintiff-appellee was entitled to summary judgment as a matter of law, and in thereby ruling that he was entitled to enforce his judgment for the payment of money other than as provided by law and as required by Ohio Rul.Civ.P. 69."

There are no disputed facts. The question is strictly a matter of law.

On May 18, 1979, plaintiff-appellee obtained a judgment against defendant-appellant in the amount of $5,513.75 in the Court of Common Pleas of Franklin County. On the same day, plaintiff-appellee caused a certificate of judgment to be filed in the office of the Clerk of the Court of Common Pleas of Franklin County pursuant to R.C. 2329.02. The certificate of judgment is recorded at Judgment Docket Volume 203, page 105371. A writ of execution has not been issued on the judgment. However, on August 8, 1980, plaintiff-appellee commenced this action to foreclose the lien created by the filing of the certificate of judgment on specifically described real estate owned by defendant-appellant, Carol Rogers, joining all parties necessary to foreclose the lien.

On October 28, 1980, plaintiff-appellee filed a motion for summary judgment, properly proving the facts previously outlined. At that time, defendant-appellant raised for the first time the fact that plaintiff-appellee had not issued a writ of execution.

The trial court granted the motion for summary judgment.

R.C. 2329.02 provides, as pertinent, as follows:

"Any judgment or decree rendered by any court of general jurisdiction, including district courts of the United States, within this state shall be a lien upon lands and tenements of each judgment debtor within any county of this state from the time there is filed in the office of the clerk of the court of common pleas of such county a certificate of such judgment, setting forth the court in which the same was rendered, the title and number of the action, the names of the judgment creditors and judgment debtors, the amount of the judgment and costs, the rate of interest, if the judgment provides for interest, and the date from which such interest accrues, the date or rendition of the judgment, and the volume and page of the journal entry thereof."

The issue is whether the judgment lien acquired by plaintiff-appellee when he filed the certificate of judgment in the office of the clerk of the court of common pleas may provide the basis for foreclosure and sale of Rogers' real estate in Franklin County.

Plaintiff-appellee foreclosed pursuant to R.C. 2323.07, which provides, as pertinent, as follows:

"When a mortgage is foreclosed or a specific lien enforced, a sale of the property shall be ordered."

Defendant-appellant argues that the lien which arose from the filing of the certificate of judgment in the office of the Clerk of the Court of Common Pleas of Franklin County was a general rather than a specific lien upon her real estate and thus, R.C. 2323.07 has no application. That contention is not well taken. The lien acquired by filing a certificate of judgment in accordance with R.C. 2329.02 is a statutory lien which is effective from the date of filing on all real estate located in the county. Maddox v. Astro Investments (1975), 45 Ohio App.2d 203 , 343 N.E.2d 133. The statutory lien acquired thereby attaches without...