In The Huntington National Bank v. Conservatory Associates Limited Liability Copmany, et al. (2011), Medina Co. No. 10CA0096-M, 2011-Ohio-3249 (Jun. 30, 2011) the Court of Appeals affirmed the granting of summary judgment on a foreclosure complaint to Plaintiff Huntington National Bank (“the Bank”), but reversed the trial court’s order appointing an auctioneer to sell the property rather than a sheriff.

The Bank filed a foreclosure complaint seeking to foreclose on secured property after Defendants defaulted on a promissory note for $1,344,000 in construction expenses.  The trial court granted summary judgment to the Bank.  On appeal, Defendants challenged the trial court’s ruling, arguing primarily that the affidavit attached to the motion for summary judgment did not comply with Rule 56(E) because the documents referred to in the affidavit were not attached to the affidavit.  Rule 56(E) requires that “[s]worn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to . . . the affidavit[.]”  The Court of Appeals upheld summary judgment finding that the affidavit did comply with the requirements of Rule 56(E) because the affidavit stated that the affiant was a servicing agent and had custody of the documents, was familiar with the documents, and that the mortgage and note attached to the complaint were accurate copies of the original instruments. 

Despite upholding summary judgment for the Bank, the Court of Appeals reversed the trial court’s order permitting an auctioneer to sell the property.  Under R.C. § 2329.34(B) “[n]o court shall make or issue an order to a master for the sale of real estate, unless there exists some special reason why the sale should not be made by the sheriff of the county where the decree or order was made, which reason, if the court finds any to exist, shall be embodied in and made part of the judgment, order, or decree for such sale.”  The Bank argued that the trial court’s order stating that the Bank’s motion was “well taken and is granted,” appointing an auctioneer to sell the property, met the requirements of R.C. § 2329.34(B).  The Court of Appeals, however, interpreted the statute strictly and refused to uphold the trial court’s order because the trial court had not embodied any reason in its order.  While the Bank argued that its motion seeking appointment of an auctioneer included numerous reasons, namely that the auctioneer could conduct a pre-sale marketing campaign and sell the property onsite, the Court of Appeals reversed the trial court’s order because none of those reasons were in the order.