[Cite as Nelnet, Inc. v. Young, 2014-Ohio-3521.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Nelnet, Inc. [Municipal Tax Property LLC], :
Plaintiff-Appellee, :
No. 13AP-1092
v. : (C.P.C. No. 11 CV 012669)
Michael J. Young, Trustee, : (REGULAR CALENDAR)
Defendant-Appellant, :
K & L Partnership et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on August 14, 2014
Law Office of Schwartz & Associates, Benjamin M. Golsky
and Kirk W. Liederbach, for plaintiff-appellee.
Michael J. Young, pro se.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Michael J. Young, Trustee ("appellant"), appeals pro
se from a judgment of the Franklin County Court of Common Pleas granting summary
judgment in favor of plaintiff-appellee, Municipal Tax Property, Inc. ("MTP"), on a
complaint for foreclosure pursuant to a tax certificate issued by the Franklin County
Treasurer. Because we conclude that there was no error regarding the correct party to
pursue the action as plaintiff after the trial court vacated its original default judgment
order, we affirm.
No. 13AP-1092 2
{¶ 2} This case originated when Nelnet, Inc. ("Nelnet") filed a complaint on
October 11, 2011, asserting that it had purchased Tax Certificate No. 010-019193-00-P1-
0015-09 at public auction from the Franklin County Treasurer. Nelnet claimed that the
tax certificate constituted a first lien on certain property identified as "Creswick St.,"
located in Franklin County, Ohio. Nelnet asserted that the certificate redemption price
was due and unpaid and sought foreclosure on the Creswick St. property. The complaint
named appellant as one of several defendants.
{¶ 3} On May 10, 2012, Nelnet moved for default judgment against some of the
defendants, including appellant. The trial court granted a default judgment and decree of
foreclosure on May 11, 2012. Subsequently, on January 17, 2013, Nelnet filed a motion to
substitute MTP as plaintiff, asserting that it had transferred its interest in the tax
certificate to MTP and that the same counsel was attorney of record for both of these
related entities. The trial court granted the motion to substitute on January 22, 2013, and
ordered MTP substituted as plaintiff, without change to the counsel of record.
{¶ 4} On March 22, 2013, appellant, appearing pro se, filed a motion to vacate the
default judgment, asserting that he was never served with a copy of the complaint or other
pleadings. The trial court granted the motion to vacate and vacated the default judgment
order. MTP's counsel requested service of the complaint and summons on appellant, and
appellant filed an answer to the complaint. MTP then moved for summary judgment,
asserting that there were no genuine issues of material fact and that it was entitled to
judgment as a matter of law. The trial court granted the motion for summary judgment,
issuing a judgment of foreclosure pursuant to the lien existing under the tax certificate.
{¶ 5} Appellant appeals from the trial court's judgment, assigning two errors for
this court's review:
Assignment of Error No. 1
THE FRANKLIN COUNTY COURT OF COMMON PLEAS
ERRED IN GRANTING SUMMARY JUDGMENT TO
PLAINTIFF NELNET INC., AS PLAINTIFF NELNET INC.
HAD TRANSFERRED ITS INTEREST IN THE ACTION TO
SUBSTITUTE PLAINTIFF MUNICIPAL TAX PROPERTY,
LLC, AND, AFTER SAID TRANSFER OF NELNET'S
INTEREST TO SAID MUNICIPAL TAX PROPERTY LLC,
THE ORIGINAL JUDGMENT AGAINST DEFENDANT AND
No. 13AP-1092 3
ASSUMED BY SUBSTITUTE PLAINTIFF MUNICIPAL TAX
PROPERTY LLC, WAS SET ASIDE BY THE TRIAL COURT
BECAUSE OF MISCONDUCT BY ORIGINAL PLAINTIFF
NELNET INC. IN A RULE 60(B) MOTION FILED BY
DEFENDANT. PLAINTIFF NELNET INC. IS NOT A PROPER
PARTY IN THE INSTANT CASE, AND SUBSTITUTE
PLAINTIFF MUNICIPAL TAX PROPERTY LLC HAS NO
STANDING IN THE JUDGMENT ENTERED BY THE TRIAL
COURT ON NOVEMBER 26, 2013. SUBSTITUTE PLAIN-
TIFF MUNICIPAL TAX PROPERTY LLC NEVER JOINED IN
THE COMPLAINT RE-FILED BY ORIGINAL PLAINTIFF
NELNET INC. AFTER THE ORIGINAL JUDGMENT WAS
SET ASIDE BY THE TRIAL COURT, AND NELNET INC.,
HAVING TRANSFERRED ITS INTEREST IN THIS ACTION
TO SUBSTITUTE PLAINTIFF MUNICIPAL TAX PROPERTY
LLC, HAD NO STANDING TO RE-FILE AND/OR RE-SERVE
DEFENDANT.
Assignment of Error No. 2
THE PURPORTED SALE OF THE TAX CERTIFICATE
REFERENCED IN PLAINTIFF'S COMPLAINT IS INVALID
AS THE PROVISIONS CITED IN THE OHIO REVISED
CODE, SPECIFICALLY O.R.C. 5721.30 THRU [sic] 5721.43,
ARE UNCONSTITUTIONAL AND AGAINST PUBLIC
POLICY. THE COUNTY TREASURER'S OFFICE ONLY IS
AUTHORIZED TO COLLECT REAL ESTATE TAXES FROM
RESPECTIVE PROPERTY OWNERS. THE PURPORTED
SALE OF SO CALLED "TAX CERTIFICATES" TO THIRD
PARTIES IS AN INVALID DELEGATION OF THE
TREASURER'S COLLECTION AUTHORITY AND COM-
PLETELY DISREGARDS THE INTENT OF THE COUNTY
TREASURER'S RESPONSIBILITIES.
{¶ 6} We review a trial court's ruling on a summary judgment motion de novo.
Capella III, L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.),
citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). "De novo
appellate review means that the court of appeals independently reviews the record and
affords no deference to the trial court's decision." (Citations omitted.) Holt v. State, 10th
Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9. Summary judgment is appropriate where "the
moving party demonstrates that (1) there is no genuine issue of material fact, (2) the
moving party is entitled to judgment as a matter of law, and (3) reasonable minds can
No. 13AP-1092 4
come to but one conclusion, and that conclusion is adverse to the party against whom the
motion for summary judgment is made." Capella III at ¶ 16, citing Gilbert v. Summit Cty.,
104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6.
{¶ 7} Appellant's first assignment of error asserts that the trial court erred by
granting summary judgment because Nelnet was not the real party in interest and lacked
standing to pursue the lawsuit. Appellee responds that, because Nelnet was the certificate
holder at the time it filed the complaint, Civ.R. 25(C) permitted Nelnet to pursue the suit
after transferring its interest in the tax certificate to MTP. Civ.R. 25(C) provides that, "[i]n
case of any transfer of interest, the action may be continued by or against the original
party, unless the court upon motion directs the person to whom the interest is transferred
to be substituted in the action or joined with the original party."
{¶ 8} Reviewing the record before us, we need not reach the question of whether
Civ.R. 25(C) authorized Nelnet to continue the action because it appears that, after the
court vacated the initial default judgment, it was MTP that pursued the case because MTP
had already been substituted as plaintiff. In his motion to vacate, appellant asserted that
he had not been served with the complaint or other pleadings in the case. The trial court
granted the motion to vacate the judgment on June 20, 2013. Counsel for MTP, who had
also previously served as counsel for Nelnet, then requested that the clerk of courts serve
copies of the original complaint and summons on appellant. After appellant filed an
answer to the complaint, MTP filed a motion for summary judgment, referring to itself in
the motion as the "substituted plaintiff." Thus, although the original complaint that was
served on appellant contained Nelnet's name as plaintiff, it was MTP that pursued the
case following the order vacating the default judgment, and it was MTP that sought
summary judgment. Therefore, despite appellant's assertion, the trial court did not
erroneously grant summary judgment in favor of a party that lacked standing to pursue
the litigation.
{¶ 9} Accordingly, we overrule appellant's first assignment of error.
{¶ 10} In his second assignment of error, appellant argues that the statutes
authorizing the sale of tax certificates by county treasurers are unconstitutional. There is a
presumption of constitutionality for lawfully enacted legislation. State ex rel. Zeigler v.
Zumbar, 129 Ohio St.3d 240, 2011-Ohio-2939, ¶ 24. "[B]efore a statute is struck down 'it
No. 13AP-1092 5
must appear beyond a reasonable doubt that the legislation and constitutional provisions
are clearly incompatible.' " Id., quoting State ex rel. Dickman v. Defenbacher, 126 Ohio
St. 142 (1955), paragraph one of the syllabus. Appellant's brief does not cite any specific
constitutional provision that he asserts is in conflict with the challenged statutory
provisions. Appellant also fails to cite any case law in support of his second assignment of
error. Therefore, appellant has failed to demonstrate beyond a reasonable doubt that the
statutes are clearly incompatible with a constitutional provision.
{¶ 11} Accordingly, we overrule appellant's second assignment of error.
{¶ 12} For the foregoing reasons, we overrule appellant's two assignments of error
and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and LUPER SCHUSTER, JJ.
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