Trumbull Twp. Bd. of Trustees v. Rickard

[Cite as Trumbull Twp. Bd. of Trustees v. Rickard, 2019-Ohio-2502.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

TRUMBULL TOWNSHIP BOARD OF : OPINION
TRUSTEES, ASSIGNEE OF GEAUGA
SAVINGS BANK, :
CASE NO. 2017-A-0048
Plaintiff-Appellant, :

- vs - :

LAWRENCE RICKARD, et al., :

Defendant-Appellee. :

Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011 CV
1081.

Judgment: Affirmed.

Sandra J. Rosenthal, 25423 Cardington Drive, Beachwood, OH 44122, and Catherine
R. Colgan, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson
Street, Jefferson, OH 44047 (For Plaintiff-Appellant).

Erik L. Walter and Grant J. Keating, Dworken & Bernstein Co., L.P.A., 60 South Park
Place, Painesville, OH 44077 (For Defendant-Appellee).

THOMAS R. WRIGHT, P.J.

{¶1} Appellant, the Board of Trumbull Township Trustees (the Township),

appeals the trial court’s July 21, 2017 decisions approving Lawrence Rickard’s

redemption of the subject property and vacating the September 9, 2016 judgment entry

of foreclosure and dismissing the case. We affirm.
 {¶2} This is the third appeal in this case. The first appeal arose via the

Township’s motion to intervene and ended with a finding that we lacked jurisdiction due

to a lack of a final appealable order. Geauga Savs. Bank v. Rickard, 11th Dist. Ashtabula

No. 2012-A-0052, 2013-Ohio-3863, ¶11. In “Appeal II,” decided on July 24, 2017, we

summarized the procedural history, Trumbull Twp. Bd. of Trustees v. Rickard, 11th Dist.

Ashtabula No. 2016-A-0061, 2017-Ohio-6945, ¶2-5:

{¶3} “In November 2011, Geauga Savings Bank (GSB) filed a complaint for

foreclosure against appellee, Lawrence Rickard, pursuant to his assumption of a loan

agreement, based on Rickard’s nonpayment and against Bryce R.T. Seymour and

Christine Seymour, whose mortgage Rickard assumed. The Township was not a party to

the suit.

{¶4} “In 2014, GSB filed a motion for summary judgment against Rickard and the

Seymours seeking foreclosure and money damages based on Rickard’s default.

{¶5} “After the parties’ competing motions and briefs were filed regarding

summary judgment, but before the trial court issued its decision, the Township was

substituted as the plaintiff in place of GSB on January 5, 2016 pursuant to GSB’s

assignment of Rickard’s assumption agreement, mortgage, and note.

{¶6} “On July 29, 2016, the trial court granted the Township summary judgment

as to foreclosure and reformation of the legal description and ordered the Township to

produce a judgment entry of foreclosure within 30 days. However, it denied summary

judgment on GSB’s request for attorney fees as well as its request for a hearing on the

issue. The trial court later issued its judgment entry of foreclosure on September 9, 2016.”

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 {¶7} We reversed and remanded finding that the Township, as GSB’s assignee,

“stand[s] in the shoes of the prior plaintiff and acquire[s] the prior parties’ right to recover

attorney fees incurred in enforcing the note against Rickard.” Id. at ¶18. Accordingly, the

trial court erred in failing to hold an evidentiary hearing on the attorney fee issue. Id.

{¶8} Notwithstanding the pending appeal in Appeal II, on March 29, 2017,

Rickard filed a motion to vacate the July 29, 2016 decision granting the Township

summary judgment and the September 9, 2016 decree of foreclosure and for approval of

redemption of the subject property. This motion also sought an order distributing the

funds Rickard deposited with the clerk of courts to satisfy his outstanding obligations

regarding the property.

{¶9} Rickard then moved this court to stay the appeal in Appeal II due to his

pending motion to redeem the property in the trial court. We overruled his motion to stay

Appeal II, noting that the appeal was not moot. Neither party had moved to stay the trial

court’s July 29, 2016 summary judgment decision and September 9, 2016 judgment entry

of foreclosure at this time.

{¶10} On April 7, 2017, the Township filed its opposition to Rickard’s motion to

vacate and for a redemption order, and for the first time, the Township moved the trial

court to stay its foreclosure proceedings. It argued in part that the pendency of Appeal II

deprived the trial court of jurisdiction to approve Rickard’s redemption and consider the

motion to vacate the foreclosure decree.

{¶11} Rickard opposed the Township’s motion to stay the trial court proceedings,

alleging irreparable harm based on the continued accrual of interest during the pendency

of the appeal, noting that the principal amount owed pursuant to the note was $50,992.04,

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but that this amount had increased by approximately $20,000 during the protracted

litigation. And because Rickard had already deposited the outstanding funds with the

clerk of courts necessary to satisfy the trial court’s September 9, 2016 foreclosure decree,

Rickard urged the court to find that he successfully exercised his right to redeem the

property.

{¶12} Following a hearing, the magistrate overruled the Township’s motion to stay

and granted Rickard’s motion for approval of redemption and to vacate the September 9,

2016 judgment, finding that the note was satisfied. The magistrate directed Rickard to

prepare a judgment entry outlining the proper disbursement of the funds deposited with

the clerk of courts. The Township filed objections.

{¶13} On July 21, 2017, the trial court granted Rickard’s motions to redeem and

vacate the September 9, 2016 decree of foreclosure. It overruled the Township’s

objections and adopted and approved the magistrate’s decision, explaining in part:

{¶14} “[A]bsent a stay of execution, the plaintiff may proceed with a foreclosure

sale while an appeal is pending. By the same logic, the defendant should not be

prevented from exercising a statutory right to redeem the property. It is not clear whether

this Court has the authority to issue an order prohibiting a judgment debtor from exercising

the statutory right of redemption. However, continuing to delay the defendant’s ability to

redeem the property substantially prejudices the defendant, while the plaintiff will surely

seek to claim interest on the underlying judgment until the date it is ultimately paid.”

{¶15} The redemption journal entry, ordering the disbursement of funds that

Rickard deposited with the clerk of courts, was also issued on July 21, 2017. It orders

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the clerk to distribute the funds on deposit, orders the judgment and decree of foreclosure

vacated, and dismisses the case with prejudice.

{¶16} The Township subsequently moved the trial court to stay its ruling granting

redemption and vacating the foreclosure decree pending the instant appeal, Appeal III,

which the trial court granted. Accordingly, the trial court stayed the attorney fee hearing

on remand following Appeal II pending the resolution of this appeal.

{¶17} The Township raises one assigned error, which asserts:

{¶18} “The trial court erred in vacating its judgment granting a foreclosure and in

approving a redemption as well as dismissing the case with prejudice when the judgment

it vacated was under review in a pending appeal.”

{¶19} The Township raises three arguments under its sole assigned error. First,

it claims the trial court lacked jurisdiction to dismiss the case with prejudice when an

appeal was pending because its decision was inconsistent with our authority to reverse,

modify, or affirm the appealed judgment, and as such, its redemption judgment is void.

The Township’s second argument asserts that a plain reading of the redemption statute

confirms that it was inapplicable because there was no order to sell the subject property.

Finally, the Township asserts that assuming the redemption statute is applicable, then

Rickard’s deposit of funds was not enough to satisfy the judgment in light of the pending

appeal regarding the Township’s right to attorney fees. This was not the basis of an

objection to the magistrate’s decision.

{¶20} First, we disagree with the Township’s argument that the trial court was

without jurisdiction to issue the redemption order pending direct appeal from the decree

of foreclosure. The filing of a notice of appeal without securing a stay of execution from

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the judgment appealed “does not deprive the trial court of authority to enforce its

judgment.” White v. White, 50 Ohio App.2d 263, 362 N.E.2d 1013, (8th Dist.1977)

paragraph five of the syllabus (upon considering a motion to show cause).

{¶21} “[A] trial court retains all jurisdiction which does not conflict with the

jurisdiction of the appellate court. Yee v. Erie Cty. Sheriff’s Dept. (1990), 51 Ohio St.3d

43, 44, 553 N.E.2d 1354, 1355. This retained jurisdiction includes the authority to take

any action which would aid in the execution of the appealed judgment. State ex rel. Klein

v. Chorpening (1983), 6 Ohio St.3d 3, 4, 6 OBR 2, 3-4, 450 N.E.2d 1161, 1162-1163;

Northfield Park Assoc. v. Northeast Ohio Harness (1987), 36 Ohio App.3d 14, 26, 521

N.E.2d 466, 478-479.

{¶22} “Consistent with the jurisdiction of the trial court to enforce a judgment, the

nonappealing party in an action retains a legal right to initiate proceedings in aid of the

execution of a judgment even after an appeal from that judgment has been taken. Pontiac

Motor Div. v. Motor Vehicle Dealers Bd. (Sept. 15, 1987), Franklin App. No. 87AP-48,

unreported, 1987 WL 17391.

{¶23} “Of course, a trial court’s ability to exercise its jurisdiction over an appealed

judgment, like the nonappealing party’s right to enforce the judgment, is contingent upon

the existence of a valid stay order. * * *

{¶24} “Once the appellant in an appeal has obtained a valid stay order from either

the trial court or appellate court, the nonappealing party cannot initiate any proceeding to

enforce the judgment in question. Nor can the trial court take any action in aid of

execution. However, if the appellant neglects to obtain a stay of the judgment, the

nonappealing party has the right to attempt to obtain satisfaction of the judgment even

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though the appeal is pending. Pontiac Motor Div.” (Emphasis added.) Hagood v. Gail,

105 Ohio App.3d 780, 784-85, 664 N.E.2d 1373 (11th Dist.1995).

{¶25} “If a ‘judgment is voluntarily paid and satisfied, such payment puts an end

to the controversy, and takes away * * * the right to appeal or prosecute error or even to

move for vacation of judgment.’ Lynch v. Lakewood City School Dist. Bd. of Edn. (1927),

116 Ohio St. 361, 156 N.E. 188, paragraph three of the syllabus. Likewise, accepting

payment of the judgment renders an appeal from that judgment moot. See Mason v.

Mason, 8th Dist. Nos. 80368 and 80407, 2002-Ohio-6042, at ¶ 4-5. Thus, ‘[i]f an appellant

neglects to obtain a stay of the judgment, the nonappealing party has the right to attempt

to obtain satisfaction of the judgment even though the appeal is pending.’ Atlantic Mtge.

& Invest. Corp. v. Sayers, 11th Dist. No. 2000-A-0081, 2002 WL 331734, at 1. * * *

Consequently, when ‘the nonappealing party is successful in obtaining satisfaction of the

judgment, the appeal must be dismissed because the issues raised in the appeal have

become moot.’ Hagood v. Gail (1995), 105 Ohio App.3d 780, 785, 664 N.E.2d 1373.”

Marotta Bldg. Co. v. Lesinski, 11th Dist. Geauga No. 2004-G-2562, 2005-Ohio-558, ¶18.

{¶26} This rule of satisfaction applies equally to plaintiffs and defendants. In

Sturgill v. JP Morgan Chase Bank, 4th Dist. Hocking No. 12CA8, 2013-Ohio-688, ¶10,

Sturgill filed suit, and the parties eventually entered a settlement agreement following

mediation. Sturgill appealed claiming that the settlement agreement was tentative and

unenforceable. Notwithstanding his appeal, however, Sturgill cashed the settlement

check. Id. Thus, Sturgill’s “voluntary acceptance of the payment of the entire judgment,

and specifically his act of cashing the check, rather than placing it in escrow, * * * rendered

his appeal moot.” Id. at ¶12.

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 {¶27} Here, the Township did not obtain a stay of the judgment, and as such,

Rickard, as the nonappealing party, had the right to satisfy the judgment even though an

appeal was pending. Hagood, supra; Blodgett v. Blodgett, 49 Ohio St.3d 243, 551 N.E.2d

1249 (1990) (finding wife’s appeal was moot because she accepted payment of the

judgment amount). The right of redemption “is a mortgagor’s right to take prescribed

action to satisfy a debt secured by a mortgage.” Hausman v. Dayton, 73 Ohio St.3d 671,

1995-Ohio-277, 653 N.E.2d 1190 (1995) paragraph two of the syllabus.

{¶28} Accordingly, the Township’s first and third arguments lack merit.

{¶29} The Township’s second argument alleges that a plain reading of R.C.

2329.33 confirms it is inapplicable because there was no order to sell the subject property

and no sale.

{¶30} The Township did not, however, raise this argument in its objections to the

magistrate’s decision, and as such, the Township waives the right to assign the same as

error on appeal, except for claims of plain error. Civ.R. 53(D)(3)(b)(iv).

{¶31} “In applying the doctrine of plain error in a civil case, reviewing courts must

proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases

where exceptional circumstances require its application to prevent a manifest miscarriage

of justice, and where the error complained of, if left uncorrected, would have a material

adverse effect on the character of, and public confidence in, judicial proceedings.”

Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997-Ohio-401, 679 N.E.2d 1099 (1997).

{¶32} The foreclosure decree here determined that the mortgage owned by the

Township was the first and best lien, after real estate taxes, and that the Township was

entitled to foreclose because Rickard violated the conditions of the mortgage. The decree

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also determined the amount owed. Accordingly, the trial court granted Rickard three days

to pay this amount, and ten days thereafter, the Township was permitted to file a praecipe

directing the clerk of courts to issue the order of sale. The proceeds were to be distributed

consistent with the decree after the sale and confirmation of the sale.

{¶33} “The amount found due [via the foreclosure decree] is * * * a determination

by the court which serves as the basis for redemption on the one hand or distribution of

sale proceeds on the other hand.” Citizens Loan & Sav. Co. v. Stone, 1 Ohio App.2d 551,

555, 206 N.E.2d 17, 21 (2nd Dist.1965).

{¶34} The right of redemption is both equitable and statutory. Hausman v.

Dayton, 73 Ohio St.3d 671, 676, 1995-Ohio-277, 653 N.E.2d 1190 (1995).

{¶35} The equitable right of redemption “continues until the land is sold * * *.”

Frische v. Kramer’s Lessee, 16 Ohio 125, 138, 47 Am. Dec. 368 (1847). “The mortgagor

remains the equitable owner until the property is sold under the order of the court. Until

then he may, by paying the debt, redeem the land.” Sun Fire Office of London v. Clark,

53 Ohio St. 414, 424, 42 N.E. 248 (1895). Once a court issues a decree of foreclosure,

a mortgagor is typically granted a three-day grace period to exercise their equitable right

of redemption by paying the debt, interest, and court costs as determined in the decree.

Hausman, supra.

{¶36} The expiration of the three-day equitable right to redeem triggers the power

of the court to issue the order of sale. Citizens Loan & Sav. Co., supra, at 556. And the

failure to redeem within the three-day period “may add various court costs, but it does not

destroy the right to redeem.” Id.

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 {¶37} As stated, the equitable right to redeem continues beyond this three-day

period until sale. Frische v. Kramer’s Lessee, supra. Once the order of sale is issued,

then the statutory right of redemption kicks in under R.C. 2329.33, and the mortgagor has

the statutory right to redeem. Consequently, the mortgagor’s right to redeem is viable

throughout the duration of foreclosure proceedings until confirmation of the sale. Bates

v. Postulate Invests., L.L.C., 8th Dist. Cuyahoga No. 90099, 176 Ohio App.3d 523, 2008-

Ohio-2815, 892 N.E.2d 937, ¶17; Reed v. Radigan, 42 Ohio St. 292 (1884).

{¶38} R.C. 2329.33, Redemption by judgment debtor, states:

{¶39} “[I]n sales of real estate on execution or order of sale, at any time before the

confirmation thereof, the debtor may redeem it from sale by depositing in the hands of the

clerk of the court of common pleas to which such execution or order is returnable, the

amount of the judgment or decree upon which such lands were sold, with all costs,

including poundage, and interest at the rate of eight per cent per annum on the purchase

money from the day of sale to the time of such deposit, except where the judgment

creditor is the purchaser, the interest at such rate on the excess above the judgment

creditor's claim. The court of common pleas thereupon shall make an order setting aside

such sale, and apply the deposit to the payment of such judgment or decree and costs,

and award such interest to the purchaser, who shall receive from the officer making the

sale the purchase money paid by the purchaser, and the interest from the clerk. This

section does not take away the power of the court to set aside such sale for any reason

for which it might have been set aside prior to April 16, 1888.”

{¶40} “[T]he redemption statute, R.C. 2329.33, applies to the time after the

sheriff’s sale but before confirmation of such sale. It allows the mortgagors a final

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eleventh-hour opportunity to redeem their property.” Women’s Fed. Sav. Bank v.

Pappadakes, 38 Ohio St.3d 143, 147, 527 N.E.2d 792 (1988).

{¶41} A trial court has an obligation to grant a motion to redeem once the statutory

requirements are satisfied or when the judgment is paid in full before sale. Wells Fargo

Bank, N.A. v. Brooks, 7th Dist. Columbiana No. 15 CO 0010, 2016-Ohio-8561, ¶27;

Citizens Loan & Sav. Co., supra, at 556.

{¶42} Here, Rickard moved to vacate the decision granting the Township

summary judgment and the decree of foreclosure and for approval of redemption of the

property on March 29, 2017. His motion evidences the amounts owed as of the date of

the motion. Rickard also sought an order distributing the funds deposited with the clerk

to satisfy his obligations regarding the property. Except for the issue pending in Appeal

II, i.e., attorney fees, the Township did not challenge the amounts Rickard deposited.

{¶43} In light of the foregoing, the trial court correctly approved Rickard’s equitable

redemption of the property, ordered the distribution of funds, vacated the decree of

foreclosure, and dismissed the case. The court acted pursuant to its equitable authority

to redeem since its statutory authority was not yet applicable because there was no order

of sale. R.C. 2329.33. And as previously explained, the absence of a stay of the

underlying foreclosure decree renders the issues on appeal in Appeal II and our directive

on remand moot. Marotta Bldg. Co. v. Lesinski, 11th Dist. Geauga No. 2004-G-2562,

2005-Ohio-558, ¶18; Hausman v. Dayton, 73 Ohio St.3d 671, 1995-Ohio-277, 653 N.E.2d

1190 (1995) paragraph two of the syllabus.

{¶44} Accordingly, the trial court’s decisions are affirmed.

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MATT LYNCH, J., concurs.

TIMOTHY P. CANNON, J., dissents with a Dissenting Opinion.

____________________

TIMOTHY P. CANNON, J., dissenting.

{¶45} I respectfully dissent from the majority opinion.

{¶46} The Township filed a motion for summary judgment, which was granted by

the trial court on July 29, 2016. The entry granting the motion for summary judgment also

denied the Township attorney fees, without a hearing. On September 9, 2016, the trial

court issued a judgment entry and foreclosure decree ordering Rickard’s property

foreclosed at sheriff’s sale and ordering the distribution of proceeds from the sale.

{¶47} In Appeal II, the Township noticed an appeal from the foreclosure decree.

On appeal, the Township took issue with the denial of its request for attorney fees without

a hearing, which was pronounced in the summary judgment entry. As a result of the

denial, the decree of foreclosure did not include any amount for attorney fees in the order

of distribution of proceeds.

{¶48} While Appeal II was pending, Rickard filed a motion to vacate the judgment

of foreclosure and for approval of redemption on March 29, 2017. Rickard deposited

money with the clerk of courts in an attempt to satisfy all outstanding obligations under

the foreclosure decree. The Township filed a response in opposition and sought a stay

of proceedings from the trial court, pending the appeal in Appeal II. After a hearing, on

May 24, 2017, the magistrate issued a decision recommending that Rickard’s motion to

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vacate and approve redemption should be granted and that the Township’s motion to stay

should be overruled.

{¶49} Rickard then filed a motion in this court to stay Appeal II, pending

redemption proceedings in the trial court. We issued an order on July 3, 2017, denying

Rickard’s motion to stay, which stated: “Appellee, Lawrence Rickard, requests a stay

alleging mootness due to pending redemption. Regardless, whether appellant is entitled

to judgment for attorney fees denied is not moot. The motion for stay is overruled.”

{¶50} The Township did not request a stay of the trial court proceedings from this

court.

{¶51} The Township filed objections to the magistrate’s decision, which the trial

court overruled. The only objection pertinent to this appeal is whether the trial court had

jurisdiction to proceed while the attorney fee issue was pending in Appeal II.

{¶52} The trial court adopted the magistrate’s decision on July 21, 2017: the

decree of foreclosure was vacated, the redemption was approved, the clerk of courts was

ordered to distribute the deposited funds, and the case was dismissed with prejudice.

{¶53} Three days later, on July 24, 2017, this court reversed the trial court’s denial

of attorney fees and remanded the matter for the trial court to hold a hearing. We held

that the Township was “entitled to a hearing to determine reasonable attorney fees, if any,

in enforcing the note pursuant to Section 7(E) of the note.” Appeal II at ¶29.

{¶54} Two days later, on July 26, 2017, the Township filed the instant appeal from

the trial court’s July 21, 2017 entry. The trial court subsequently granted a stay of all

proceedings, including the remanded issue of attorney fees.

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 {¶55} Rickard moved for a dismissal of the instant appeal, arguing lack of

jurisdiction due to mootness. Rickard claimed the July 21, 2017 judgment disposed of all

issues in the case and satisfied the foreclosure decree in its entirety, thus any remaining

claims of the Township were rendered moot. Accordingly, Rickard maintained, this court

had been divested of jurisdiction to rule on both Appeal II and the present appeal. On

December 21, 2017, this court overruled the motion to dismiss on the basis that the

foreclosure decree had not yet been satisfied. We stated, in relevant part, that “the trial

court stayed the redemption judgment pending appeal, and Trumbull Township’s

response that it has not been paid the deposited funds and that the property has not yet

been redeemed go unchallenged. Accordingly, the appeal is not moot due to

satisfaction[.]”

{¶56} The majority opinion now holds that the foreclosure decree has been

voluntarily satisfied and that, because the Township did not obtain a stay while Appeal II

was pending, the attorney fee issue raised in Appeal II and our directive on remand were

rendered moot.

{¶57} In the absence of a stay, I agree that the trial court had jurisdiction to aid in

the execution of its foreclosure decree and that Rickard could initiate redemption

proceedings. I also agree that, in the absence of a stay, a judgment may be voluntarily

satisfied and thereby render an appeal moot. I do not agree, however, that the absence

of a stay in this case rendered moot the issues in Appeal II or our directive on remand.

{¶58} First, the foreclosure decree has yet to be “voluntarily satisfied.” When an

appealing party is owed money under a judgment, voluntary acceptance of the payment

of the entire judgment, rather than placing it in escrow, renders an appeal moot. See,

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e.g., Sturgill and Blodgett, supra. Here, however, the Township objected to the amount

deposited by Rickard and has represented to the court that it has not accepted payment;

it remains unchallenged that the money is still on deposit with the clerk of courts.

Accordingly, because it is the Township who appealed, I do not agree that the doctrine of

“voluntary satisfaction” has rendered any issue moot in this case. See, e.g., Everhome

Mtge. Co. v. Baker, 10th Dist. Franklin No. 10AP-534, 2011-Ohio-3303, ¶6 (where the

mortgagors declined to claim a check from the clerk of court for the balance of funds after

payment of liens and costs, their appeal was not mooted by satisfaction of judgment).

{¶59} Further, there are two portions to the summary judgment and foreclosure

decree issued by the trial court: (1) the portion that relates to the order of foreclosure and

(2) the portion that denies the Township’s request for attorney fees founded upon the

promissory note. I do not agree that the portion of the summary judgment entry denying

the Township attorney fees without a hearing was rendered moot by the trial court’s

subsequent actions related to the foreclosure. See, e.g., CitiFinancial Mtge. Co., Inc. v.

Yoel, 11th Dist. Lake No. 2004-L-184, 2006-Ohio-331, ¶17 (where property was sold at

sheriff’s sale while the mortgagor’s appeal from the foreclosure decree was pending

without a stay, the portion of the order dealing with foreclosure was rendered moot, but

the portion of the order dealing with a money judgment to the mortgagee, founded on the

promissory note, remained viable).

{¶60} Therefore, I disagree with the conclusion that the issue on appeal in Appeal

II and our directive on remand were rendered moot. I would remand this matter for the

trial court to reinstate the case on its docket until it has held a hearing on the pending

issue of attorney fees. Then the case may be properly dismissed. See, e.g., Fifth Third

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Mtge. Co. v. Rankin, 4th Dist. Pickaway No. 11CA18, 2012-Ohio-2804, ¶13-14 (where a

trial court was without jurisdiction to vacate a dispositive confirmation of sale order while

an appeal from that order was pending without a stay).

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