Header graphic for print
Banking & Finance Law Report

Tag Archives: Ohio Supreme Court

PWMA Briefing on Appellate Practice

Posted in Litigation, Ohio Law, Other Articles, PWMA Practice

From time to time we like to pass along educational opportunities that may be of interest to our subscribers. I am including details on an upcoming event that members of our Appellate and Supreme Court Practice are offering on the benefits of amicus advocacy before the Ohio Supreme Court.

Too often, the Ohio Supreme Court decides issues that affect an industry statewide without first having heard from the industry itself. Trade associations and companies can fill this gap by filing “friend of the court” briefs in Supreme Court cases that affect them. To learn more about how your organization can be part of this process, please join Kathleen Trafford, Brad Hughes, and Dennis Hirsch of our Appellate Practice Group on April 8, 2014 for a breakfast briefing. Using a roundtable format, they plan to cover the benefits of amicus advocacy, strategies for effective amicus advocacy, and the rules governing “friend of the court” briefs.

REGISTER NOW

Schedule:

Tuesday, April 8, 2014
7:30 a.m. – 8 a.m.
Registration and breakfast
8 a.m. – 9 a.m.
Roundtable discussion

Location:

Porter Wright
41 S. High St., 29th Floor
Columbus, OH 43215

 …


Continue Reading →

A Certified Question About “Wrongful Attempted Foreclosure” Likely To Be Left Unanswered For Now

Posted in Ohio Law

On May 2, we reported here on a trifecta of noteworthy lending cases that were accepted for review by the Ohio Supreme Court.  One of the three cases discussed in that post, Corbett v. Beneficial Ohio, Inc., is a certified-question case from the U.S. District Court for the Southern District of Ohio, in which District Judge Rice asked the Ohio Supreme Court whether the State of Ohio recognized a cause of action for “wrongful attempted foreclosure” and, if so, what the elements of such a tort are.  Last week, however, the parties to the underlying federal case filed a joint motion in the Ohio Supreme Court, asking that the certified question be withdrawn due to settlement and Rule 41(a) dismissal of the federal suit.  Given this development, and the fact that the Supreme Court answers certified questions that “may be determinative of the [federal] proceeding,” S.Ct.Prac.R. 18.1, the status of this tort in Ohio is likely to remain an open question for the time being.  Stay tuned to the Banking & Finance Law Report for any further developments.…


Continue Reading →

An Ohio Supreme Court “Trifecta” of Noteworthy Lending Cases on the Docket

Posted in Ohio Law

At the end of April, the Ohio Supreme Court agreed to hear three notable cases that readers of this blog may wish to monitor – or perhaps even participate in as amici curiae. First, the Court has agreed to resolve a conflict among Ohio’s appellate districts regarding whether the Statute of Frauds precludes a foreclosure defendant from asserting an oral forbearance agreement as a defense. Next, the Court has agreed to answer a question certified from federal court as to whether Ohio recognizes the tort of “wrongful attempted foreclosure.” Third, the Court has agreed to hear a payday-lending case that has attracted media attention, concerning the interplay between Ohio’s Mortgage Lending Act and the more recent Short-Term Lender Law. For additional information about these three cases, read more here.…


Continue Reading →

Ohio Supreme Court Frowns On Constructive Notice Via Website Of Sheriff’s Sale

Posted in Real Estate

On May 17, 2012, this blog reported on the oral arguments in PHH Mortgage v. Prater, a case from Clermont County, Ohio regarding the extent to which an internet website may (or may not) be constitutionally adequate notice of a sheriff’s sale.

Yesterday, the Ohio Supreme Court issued a unanimous opinion in favor of the mortgage company, reversing the court of appeals and holding that “constructive notice by publication to a party with a property interest in a foreclosure proceeding via a sheriff’s office website is insufficient to constitute due process when that party’s address is known or easily ascertainable.”

The Court’s opinion, authored by Justice Evelyn Lundberg-Stratton (who will retire at the end of this year), discusses precedent from the U.S. Supreme Court (Mullane and Mennonite Bd. of Missions) and the Ohio Supreme Court (Central Trust Co.), as well as more recent authority from the United States District Court for the Eastern District of Michigan (McCluskey v. Belford High School, E.D. Mich. No. 2:09-14345, 2010 WL 2696599 [June 24, 2009]) to conclude that the sheriff’s internet notice procedure impermissibly “shifts the burden of notification from the sheriff’s office to the persons to whom the notice is directed. *** While we understand the interest in using technology to conserve resources, we find that notice by Internet posting is more akin to publication in a newspaper, and due process demands more in this instance.” PHH Mortgage, 2012-Ohio-3931, ¶ 16.…


Continue Reading →

Ohio Supreme Court Rules On The Enforcement Of Non-Compete Agreements By The Surviving Company In A Merger

Posted in Labor Law

The Ohio Supreme Court ruled 4-3 on May 24, 2012, that following a merger the surviving company may not be able to enforce employees’ non-compete agreements where the agreements fail to contain an assignment clause and the time period of the employees’ non-competes began to run as of the date of the merger.

In Acordia of Ohio, L.L.C. v. Fishel et al., the Ohio Supreme Court ruled that a merger causes the original corporate party to non-compete agreements to cease to exist, while the surviving company takes ownership of the agreements. But where the non-compete agreement fails to contain an assignment clause, the surviving company may not enforce the non-compete agreement as if it “stepped into the shoes” of the company that had originally contracted with the employees. Although the employees’ non-compete agreements transferred automatically by operation of law to the surviving company, the Ohio Supreme Court held that the non-compete agreements at issue provided only that the employees would avoid competition following their termination from the specific company identified in the non-compete agreements. Because the non-compete agreements did not state they could be assigned or would carry over to a successor, the Ohio Supreme Court ruled that the named parties intended the agreements to operate only between themselves — the employees and the specific employer. According to the Acordia decision, the termination of the employees’ employment with the original company was triggered by the merger, which commenced the running of the non-compete periods. These periods expired on their


Continue Reading →

Ohio Supreme Court to Hear Oral Arguments Regarding Adequacy of “Website Notice” of Sheriff Sales

Posted in Real Estate

On May 23, the Ohio Supreme Court will hear oral arguments in an appeal by PHH Mortgage Corporation that concerns whether a sheriff’s website can provide constitutionally sufficient notice of the date, time, and location of a sheriff’s sale of foreclosed property. Real estate lenders of all sorts will be interested in the outcome which has important implications for foreclosure proceedings.

Nearly two decades ago, in Central Trust Co. v. Jensen, 67 Ohio St.3d 140 (1993), the Supreme Court held that notice by mail or other “equally reliable” means is a constitutional prerequisite to a proceeding that adversely affects a party’s property interests, when the interest holder’s address is known or easily ascertainable. The PHH Mortgage Corp. case tests that principle in the Internet age.

In PHH Mortgage, the mortgage company (“PHH”) filed a foreclosure action in April 2008, and the trial court’s final judgment in favor of the company was entered the following September. The property was then to be sold through the Clermont County Sheriff’s Office. On three occasions in 2009, the order of sale was withdrawn. On each of these occasions, PHH was notified by mail of the date and time for the sale. The trial court scheduled a fourth sale for April 2010. But PHH did not receive notice by mail of this sale, because at some point before then the sheriff’s office (due to budget constraints) had stopped sending notice by mail of upcoming sales, and began publishing the sale dates on its website. So, even though PHH intended to bid on …


Continue Reading →