By Larry R. Rothenberg, Esq.
Due to inadequate staffing in the sheriffs’ offices of certain counties in Ohio, you can experience long delays in the scheduling of foreclosure sales. In view of these delays, now might be the time to explore the use of a private auctioneer in lieu of a sheriff, to conduct the sale.
The county sheriff, as an officer of the court, typically is the person who conducts foreclosure sales in Ohio. However, two Ohio statutes also authorize the court to order that the sale be conducted by a licensed auctioneer. The request for the sale to be conducted by an auctioneer can be made by motion and/or can be included in the foreclosure complaint.
In asking the court to authorize an auctioneer to conduct the sale, we would be including a request that the property be sold without a sheriff’s appraisal, in order to avoid the usual delay. Because this would likely have an impact on the entitlement to a deficiency judgment, we would recommend proceeding in this fashion only in cases where the borrower is bankrupt or deceased, or where waiving the entitlement to a deficiency judgment is not deemed detrimental.
The court, in its discretion, may or may not grant a request for a sale by an auctioneer. Some judges might not be willing to grant the request if they believe, despite our arguments, that all foreclosure sales should be conducted by the sheriff, or if they are unwilling to authorize a sale without a sheriff’s appraisal. Some judges might be willing to grant the request only if it is unopposed. There could also be some delay while waiting for the judge’s ruling. However, any such delay would likely be much less than the delays that we see in having sheriff’s sales scheduled in certain counties.
Ohio law provides that the auctioneer shall receive such compensation and reimbursement for the expenses of advertising the public auction as the court finds reasonable and proper, and that such compensation and advertising expenses shall be charged as costs in the case. The actions needed to seek the appointment of an auctioneer, and the monitoring of the auctioneer’s completion of the sale, will also require additional attorney’s fees plus any hearing coverage fees, as they fall outside the routine services covered by the flat fee.
It is well-known that properties tend to deteriorate drastically while waiting for a sheriff’s sale to be scheduled. Using an auctioneer will not be cheap, and the courts’ granting of such a request will not be automatic. However, if it results in a more expeditious completion of the sale, it may enhance the recovery while reducing the timeline.
If you have any questions on this matter, please contact Mr. Larry R. Rothenberg, Esq. Larry is the partner in charge of the Real Estate Default Group in the Cleveland office of Weltman, Weinberg & Reis Co., LPA who focuses on complex foreclosures, evictions and title insurance issues. He is the author of the Ohio Jurisdictional Section within the treatise, “The Law of Distressed Real Estate”, and was a contributing author to “Ohio Foreclosures, What You Need To Know Now”, published by The West Group. He can be reached at 216.685.1135 or firstname.lastname@example.org.
 R.C. §2329.151 and 2335.021
 R.C. §2335.021