IN THE SUPREME COIJRT OF OHIO BET'TY L. LUNN, ET AL., NO. ^ ;^ r ; ^ ^, APPELLEES ON APPEAL FROM THE OHIO BOARD OF TAX APPEALS V. BTA CASE No. 2013-2661 LORAIN COUNTY BOARD OF REVISION, LORAIN COUNTY AUDITOR, ET AL., (REAL PROPERTY VALUATION) APPELLANTS NOTICE OF APPEAL OF APPELLANTS, LORAIN COUNTY BOARD OF REVISION AND LORAIN COUNTY AUDITOR Joseph W. Testa Tax Commissioner of Ohio Department of Taxation 30 East Broad Street Columbus, Ohio 43215 Betty L. Lunn, Pro Se P.O. Box 361771 Cleveland, Ohio 44136 Appellee '..... _..,,..,.._.,.,.,.., >aw ^ ^,^, R. Michael DeWine (0001981) Attorney General of Ohio 30 East Broad St., 25`" Fl. Columbus, Ohio 43215 (614)728-4948 Attor^ney for Tax C'ommissioner of Ohio ^EP 2 CLERK OF COURT AMECOURTM ED Dennis P. Will (Sup. No. 0038129) Lorain County Prosecuting Attorney John P. Kilroy (Sup. No. 0021611) Assistant Prosecuting Attorney 225 Court Street, 3ra Floor Elyria, Ohio 44035 (440) 329-5123 Attorneys for Appellants, Lorain County Board of Revision and County Auditor Neal Hubbard, Esq. Hubbard and Hubbard Attorneys 5330 Meadow Lane Court, Suite A Sheffield Village, Ohio 44035 Attorneyfor City ofelyria Schools and Board Qf Education
NOTICE OF APPEAL OF THE LORAIN COUNTY AUDITOR AND LORAIN COUNTY BOARD OF REVISION Appellants Lorain County Auditor and Lorain County Board of Revision hereby give notice of its appeal as of right under R.C. 5717.04 to the Supreme Court of Ohio from a Decision and Order of the Ohio Board of Tax. Appeals journalized in Case No. 2013-2661 on September 5, 2014. A true copy of the Decision and Order of the Board being appealed is attached hereto as Exhibit A and incorporated herein by reference. Appellants hereby complain of the following errors in the Decision and Order of the Board of Tax Appeals: 1. The BTA erred in failing to affirm the denial of the complaint by the Board of Revision (the "BOR") when having been duly notified of the hearing, neither Appellees nor their counsel appeared for the BOR hearing. 2. The BTA erred in failing to apply this Court's directive in LCL Income Prol3erties v. Rhodes, 71 Ohio St. 3d 652, 646 N.E.2d 1108 (1995) that requiring a taxpayer to appear at the hearing in support of a complaint is a reasonable procedural requirement. 3. 'I'he BTA erred in directing the BOR to value the subject property in accordance with a sale price when the record does not contain any admissible or competent and probative evidence of the sale. 4. The BTA erred in impliedly holding that a presumption of value arises when Appellees filed a complaint based upon their purchase of the subject property. 5. The BTA erred in holding that Appellees are entitled to the benefit of a presumption of value from a sale in which they were a party and possess all relevant information regarding the sale and fail to appear at the BOR hearing to testify regarding the sale. 6. The BTA erred in impliedly holding that Appellees' presentation of unauthenticated and inadmissible hearsay documents creates a rebuttable presumption of value.
7. The BTA erred in impliedly holding that Appellees' attachment of an unauthenticated settlement statement and an unauthenticated purchase agreement creates a rebuttable presumption of value. 8. The BTA erred in holding that a presumption of value applies to a sale despite the absence of evidence regarding the arm's-length nature of the sale. 9. The BTA erred in holding that there was evidence in the record to support a finding that the "transaction was recent, arm's length, and constitutes the best indication of the subject's value." 10. The BTA erred in failing to hold that a presumption of the arm's-length nature of the sale can arise only when the property owner presents the BOR with the actual facts relating to the sale in the form of competent and probative evidence. 11. The BTA erred in impermissibly shifting the burden of proof from Appellees as Appellants are not able to rebut the presumption accorded the sale when Appellees fail to appear at the BOR hearing. 12. The BTA's decision violates the provisions of R.C. 5715.01, which require that true value must be based on the "facts and circumstances relating to the value of the property," when there are no such facts and circumstances in the record before the BTA. 13. The BTA erred in failing to hold that Appellees bore the burden of proving that the sale of the subject property from U.S. Bank, Trustee for First Franklin Mortgage Loan Trust 2006 FF-10 was voluntary pursuant to this Court's decision in Columbus City Sch. Dist. Bd. Of Edn. V Franklin Cly. Bd. Of Revision, 134 Ohio St.3d 529, 2012-Ohio-5680, 983 N.E.2d 1285 (2013). 14. The BTA erred in holding that the sale was by a lending institution, ignoring the evidence that the seller was U.S. Bank, Trustee for First Franklin Mortgage Loan Trust 2006 FF-10,
a Real Estate Mortgage Investment Conduit ("REMIC"), a specialized trust holding mortgage instruments, which is incapable of making loans or actively managing property. 15. The BTA erred by accepting the unauthenticated documentation of the sale while ignoring the rebuttal testimony, which showed that the U.S. Bank, Trustee for First Franklin Mortgage Loan Trust 2006 FF- 10, a Real Estate Mortgage Investment Conduit ("REMIC") is not a typically motivated seller. 16. The BTA erred in ignoring the testimony that U.S. Bank, Trustee for First Franklin Mortgage Loan Trust 2006 FF-10; a Real Estate Mortgage Investment Conduit ("REMIC"), acted under duress and that the sale was part of a liquidation of defaulted mortgage instruments from its portfolio. Appellants request that the Supreme Court vacate the Board of Tax Appeals' decision and order the Board of Tax Appeals to reinstate the Lorain County Auditor's values as of January 1, 2012. DENNIS P. WILL Prosecuting Attorney Lorain County, Ohio c3^ ^ ^.. ^ ^^ -^ J P. KILROY - S.C. #002161 ttorneys for Appellants 225 Court Street, 3rd Floor Elyria, Ohio 44035-5642 Phone: (440) 329-5123 Fax: (440) 329-5430
PROOF OF SERVICE ON BOARD OF TAX APPEALS I hereby certify that a true and complete copy of the foregoing Notice of Appeal was served upon the Clerk of the Board of Tax Appeals as evidenced by its filing stamp set forth hereon. J P. KIL! OY - S.C. #0021611 ttorney for Appellants PROOF OF SERVICE BY CERTIFIED MAIL I hereby certify that a copy of this Notice of Appeal was sent this? S day of September, 2014, by certified mail, return receipt requested, to: Joseph W. Testa "Tax Commissioner of Ohio Department of Taxation 30 East Broad Street Columbus, Ohio 43215 R. Michael DeWine Attorney General of Ohio 30 East Broad St., 25th Fl. Columbus, Ohio 43215 Attorney for Tax Commissioner of Ohio Betty L. Lunn P.O. Box 361771 Cleveland, Ohio 44136 (Rami Awadallah) Neal Hubbard, Esq. Hubbard and Hubbard Attorneys 5330 Meadow Lane Court, Suite A Sheffield Village, Ohio 44035 Attorney.for City of Elyria Local School District Board of Education ^r r O P. KILROY - S.C. #002161 ttonney for Appellants
^-- - _ OIIIO BOARD OF TAX APPEALS BETTY L. LUNN, (et. al.), Appellant(s), vs. LORAIN COUNTY BOARD OF REVISION, (et. al.), CASE NO(S). 2013-2661 (REAL PROPERTY TAX) DECISION AND ORDER Appellee(s). APPEARANCES: For the Appellant(s) For the Appellee(s)^^; V--. c--- Lt% E"' cz- ad r C-D ^^ (J^ - BETTY L. LUNN P.O. BOX 361771 CLEVELAND, OH 44136 LORAIN COUNTY BOARD OF REVISION Represented by: JOHN P. KILROY ASSISTANT PROSECUTING ATTORNEY LORAIN COUNTY 225 COURT ST., 3RD FLOOR ELYRIA, OH 44035 ELYRIA CITY SCHOOL DISTRICT BOARD OF EDUCATION Represented by: NEAL HUBBARD HUBBARD AND HUBBARD 5330 MEADOW LANE COURT, SUITE A SHEFFIELD VILLAGE, OH 44305 Entered Friday, September 5, 2014 Mr. Williamson, Mr. Johrendt, and Mr. Harbarger concur. Appellant appeals a decision of the board of revision ("BOR") which determined the value of the subject real property, parcel number 06-24-029-104-007. This matter is now considered upon the notice of appeal, the transcript certified by the BOR pursuant to R.C. 5717.01, and the record of the hearing before this board. The subject's total true value was initially assessed at $85,170. A decrease complaint was filed with the BOR seeking a reduction in value to $22,000. The appellee board of education filed a countercomplaint in support of maintaining the auditor's values. No one appeared on behalf of the appellant before the BOR, though she offered evidence to show that the property transferred in February 2011 for $22,000. The BOR issued a decision maintaining the initially assessed valuation, which led to the present appeal. At the hearing before this board, appellant waived appearance while the appellees offered evidence and testimony to show that the sale was not at arm's length. EM1i8ff ^...^...^^.M... <.,
'When. cases are appealed from a board of revision to this board, an appellant must prove the adjustment in value requested. See, e.g., Shinkle v. Ashtabula Cty. Bd. of Revision, 135 Ohio St.3d 227, 2013-Ohio-397. It has long been held by the Supreme Court that "the best evidence of `true value in money' of real property is an actual, recent sale of the property in an arm's-length transaction." Conalco v. Bd of Revision (1977), 50 Ohio St.2d 129. Then, typically, "the only rebuttal lies in challenging whether the elements of recency and arm's-length character between a willing seller and a willing buyer are genuinely present for that particular sale." Cummins Property Servs., B.L.C. v. Franklin Cty. Bd. of Revision, 117 Ohio St.3d 516, 2008-Ohio-1473, at 13. The existence of a facially qualifying sale may be confirmed through a variety of means, e.g., purchase agreement, deed, conveyance fee statement, property record card. See, e.g., Worthington City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 124 Ohio St.3d 27, 2009-Ohio-5932; Mason City School Dist. Bd. of Edn. v. Warren Cty. Bd. of Revision, 138 Ohio St.3d 153, 2014-Ohio-104. The Supreme Court has made it clear that no "bright line" test exists when establishing recency and that the mere passage of time does not, per se, render a sale unreliable. See, e.g., Lakota Local School Dist. Bd. of Edn. v. Butler Cty. Bd. of Revision, 108 Ohio St.3d 310, 2006-Ohio-1059. Compare Akron City School Dist. Bd. ofedn. v. Summit Cty. Bd. ofrevision, 139 Ohio St.3d 92, 2014-Ohio-15880. In the present matter, it is undisputed that the subject property transferred between US Bank National Association, Trustee and Betty L. Lunn on February 28, 2011 for $22,000. Absent an affirmative demnstration. such sale is not a qualifying sale for tax valuation purposes, we find the existing record demonstrates that the transaction was recent, arm's-length, and constitutes the best indication of the subject's value as of tax lien date. Although the appellees attempted to show that the sale was not at arm's length, we note that the Supreme Court has held that "[a] foreclosure sale usually does not qualify as an arm's-length transaction because the sale occurs under the compulsion that the property be liquidated for the benefit of creditors." Cincinnati School Dist. Bd of Edn. v. Hamilton Cty. Bd. of Revision, 127 Ohio St.3d 63,2010-Ohio-4907, 3. See, also, R.C. 5713.04. However, the subsequent sale of the property by the lending institution which acquired it may be provide a reliable indication of value. See, e.g., Cattell v. Lake Cty. Bd of Revision, Lake App. No. 2009-L-161, 2010-Ohio-4426; Kahoe v. Cuyahoga Cty. Bd. ofrevision, Cuyahoga App. No. 99188, 2013-Ohio-2097. It is therefore the order of this board that the subject property's true and taxable values, as of January 1, 2012, were as follows: TRUE VALUE $22,000 TAXA.BLE VALUE $7,700
^ 3.,..._.- Y BOARD OF TAX APPEALS ttesult OF VOTE YES NO Mr. Williamson I hereby certify the foregoing to be a true and complete copy of the action taken by the Board of Tax Appeals of the State of Ohio and entered upon its journal this day, with respect to the captioned matter.._ Mr. Johrendt _^^ _.... Mr. Harbarger A.J. Groeber, Board Secretary