Bill Text: OH SB197 | 2009-2010 | 128th General Assembly | Introduced

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Bill Title: To require courts to establish and operate programs of mandatory foreclosure mediation in non-tax foreclosure actions on occupied residential properties and to establish procedures for the operation of those foreclosure mediation programs.

Spectrum: Partisan Bill (Republican 4-0)

Status: (Introduced - Dead) 2009-10-28 - To Finance & Financial Institutions [SB197 Detail]

Download: Ohio-2009-SB197-Introduced.html

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As Introduced

128th General Assembly Regular Session 2009-2010

S. B. No. 197

Senator Jones 

Cosponsors: Senators Faber, Schaffer, Wagoner 

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A BILL

To amend sections 2303.201 and 2323.06 and to enact

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sections 2303.24 and 2308.01 to 2308.05 of the

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Revised Code to require courts to establish and

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operate programs of mandatory foreclosure

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mediation in non-tax foreclosure actions on

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occupied residential properties and to establish

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procedures for the operation of those foreclosure

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mediation programs.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1.  That sections 2303.201 and 2323.06 be amended and	9
sections 2303.24, 2308.01, 2308.02, 2308.03, 2308.04, and 2308.05	10
of the Revised Code be enacted to read as follows:	11

Sec. 2303.201.  (A)(1) The court of common pleas of any	12
county may determine that for the efficient operation of the court	13
additional funds are required to computerize the court, to make	14
available computerized legal research services, or to do both.	15
Upon making a determination that additional funds are required for	16
either or both of those purposes, the court shall authorize and	17
direct the clerk of the court of common pleas to charge one	18
additional fee, not to exceed three dollars, on the filing of each	19
cause of action or appeal under divisions (A), (Q), and (U) of	20
section 2303.20 of the Revised Code.	21

(2) All fees collected under division (A)(1) of this section	22
shall be paid to the county treasurer. The treasurer shall place	23
the funds from the fees in a separate fund to be disbursed, upon	24
an order of the court, in an amount not greater than the actual	25
cost to the court of procuring and maintaining computerization of	26
the court, computerized legal research services, or both.	27

(3) If the court determines that the funds in the fund	28
described in division (A)(2) of this section are more than	29
sufficient to satisfy the purpose for which the additional fee	30
described in division (A)(1) of this section was imposed, the	31
court may declare a surplus in the fund and expend those surplus	32
funds for other appropriate technological expenses of the court.	33

(B)(1) The court of common pleas of any county may determine	34
that, for the efficient operation of the court, additional funds	35
are required to computerize the office of the clerk of the court	36
of common pleas and, upon that determination, authorize and direct	37
the clerk of the court of common pleas to charge an additional	38
fee, not to exceed ten dollars, on the filing of each cause of	39
action or appeal, on the filing, docketing, and endorsing of each	40
certificate of judgment, or on the docketing and indexing of each	41
aid in execution or petition to vacate, revive, or modify a	42
judgment under divisions (A), (P), (Q), (T), and (U) of section	43
2303.20 of the Revised Code. Subject to division (B)(2) of this	44
section, all moneys collected under division (B)(1) of this	45
section shall be paid to the county treasurer to be disbursed,	46
upon an order of the court of common pleas and subject to	47
appropriation by the board of county commissioners, in an amount	48
no greater than the actual cost to the court of procuring and	49
maintaining computer systems for the office of the clerk of the	50
court of common pleas.	51

(2) If the court of common pleas of a county makes the	52
determination described in division (B)(1) of this section, the	53
board of county commissioners of that county may issue one or more	54
general obligation bonds for the purpose of procuring and	55
maintaining the computer systems for the office of the clerk of	56
the court of common pleas. In addition to the purposes stated in	57
division (B)(1) of this section for which the moneys collected	58
under that division may be expended, the moneys additionally may	59
be expended to pay debt charges on and financing costs related to	60
any general obligation bonds issued pursuant to division (B)(2) of	61
this section as they become due. General obligation bonds issued	62
pursuant to division (B)(2) of this section are Chapter 133.	63
securities.	64

(C) The court of common pleas shall collect the sum of	65
twenty-six dollars as additional filing fees in each new civil	66
action or proceeding for the charitable public purpose of	67
providing financial assistance to legal aid societies that	68
operate within the state and to support the office of the state	69
public defender. This division does not apply to proceedings	70
concerning annulments, dissolutions of marriage, divorces, legal	71
separation, spousal support, marital property or separate property	72
distribution, support, or other domestic relations matters; to a	73
juvenile division of a court of common pleas; to a probate	74
division of a court of common pleas, except that the additional	75
filing fees shall apply to name change, guardianship, adoption,	76
and decedents' estate proceedings; or to an execution on a	77
judgment, proceeding in aid of execution, or other post-judgment	78
proceeding arising out of a civil action. The filing fees required	79
to be collected under this division shall be in addition to any	80
other filing fees imposed in the action or proceeding and shall be	81
collected at the time of the filing of the action or proceeding.	82
The court shall not waive the payment of the additional filing	83
fees in a new civil action or proceeding unless the court waives	84
the advanced payment of all filing fees in the action or	85
proceeding. All such moneys collected during a month except for an	86
amount equal to up to one per cent of those moneys retained to	87
cover administrative costs shall be transmitted on or before the	88
twentieth day of the following month by the clerk of the court to	89
the treasurer of state in a manner prescribed by the treasurer of	90
state or by the Ohio legal assistance foundation. The treasurer of	91
state shall deposit four per cent of the funds collected under	92
this division to the credit of the civil case filing fee fund	93
established under section 120.07 of the Revised Code and	94
ninety-six per cent of the funds collected under this division to	95
the credit of the legal aid fund established under section 120.52	96
of the Revised Code.	97

The court may retain up to one per cent of the moneys it	98
collects under this division to cover administrative costs,	99
including the hiring of any additional personnel necessary to	100
implement this division. If the court fails to transmit to the	101
treasurer of state the moneys the court collects under this	102
division in a manner prescribed by the treasurer of state or by	103
the Ohio legal assistance foundation, the court shall forfeit the	104
moneys the court retains under this division to cover	105
administrative costs, including the hiring of any additional	106
personnel necessary to implement this division, and shall transmit	107
to the treasurer of state all moneys collected under this	108
division, including the forfeited amount retained for	109
administrative costs, for deposit in the legal aid fund.	110

(D) On and after the thirtieth day after December 9, 1994,	111
the court of common pleas shall collect the sum of thirty-two	112
dollars as additional filing fees in each new action or proceeding	113
for annulment, divorce, or dissolution of marriage for the purpose	114
of funding shelters for victims of domestic violence pursuant to	115
sections 3113.35 to 3113.39 of the Revised Code. The filing fees	116
required to be collected under this division shall be in addition	117
to any other filing fees imposed in the action or proceeding and	118
shall be collected at the time of the filing of the action or	119
proceeding. The court shall not waive the payment of the	120
additional filing fees in a new action or proceeding for	121
annulment, divorce, or dissolution of marriage unless the court	122
waives the advanced payment of all filing fees in the action or	123
proceeding. On or before the twentieth day of each month, all	124
moneys collected during the immediately preceding month pursuant	125
to this division shall be deposited by the clerk of the court into	126
the county treasury in the special fund used for deposit of	127
additional marriage license fees as described in section 3113.34	128
of the Revised Code. Upon their deposit into the fund, the moneys	129
shall be retained in the fund and expended only as described in	130
section 3113.34 of the Revised Code.	131

(E)(1) The court of common pleas may determine that, for the	132
efficient operation of the court, additional funds are necessary	133
to acquire and pay for special projects of the court, including,	134
but not limited to, the acquisition of additional facilities or	135
the rehabilitation of existing facilities, the acquisition of	136
equipment, the hiring and training of staff, community service	137
programs, mediation or dispute resolution services, the employment	138
of magistrates, the training and education of judges, acting	139
judges, and magistrates, and other related services. Upon that	140
determination, the court by rule may charge a fee, in addition to	141
all other court costs, on the filing of each criminal cause, civil	142
action or proceeding, or judgment by confession.	143

If the court of common pleas offers a special program or	144
service in cases of a specific type, the court by rule may assess	145
an additional charge in a case of that type, over and above court	146
costs, to cover the special program or service. The court shall	147
adjust the special assessment periodically, but not retroactively,	148
so that the amount assessed in those cases does not exceed the	149
actual cost of providing the service or program.	150

All moneys collected under division (E) of this section shall	151
be paid to the county treasurer for deposit into either a general	152
special projects fund or a fund established for a specific special	153
project. Moneys from a fund of that nature shall be disbursed upon	154
an order of the court in an amount no greater than the actual cost	155
to the court of a project. If a specific fund is terminated	156
because of the discontinuance of a program or service established	157
under division (E) of this section, the court may order that	158
moneys remaining in the fund be transferred to an account	159
established under this division for a similar purpose.	160

(2) As used in division (E) of this section:

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(a) "Criminal cause" means a charge alleging the violation of	162
a statute or ordinance, or subsection of a statute or ordinance,	163
that requires a separate finding of fact or a separate plea before	164
disposition and of which the defendant may be found guilty,	165
whether filed as part of a multiple charge on a single summons,	166
citation, or complaint or as a separate charge on a single	167
summons, citation, or complaint. "Criminal cause" does not include	168
separate violations of the same statute or ordinance, or	169
subsection of the same statute or ordinance, unless each charge is	170
filed on a separate summons, citation, or complaint.	171

(b) "Civil action or proceeding" means any civil litigation	172
that must be determined by judgment entry.	173

(F)(1) The court of common pleas shall establish by rule a	174
residential foreclosure filing fee in an amount up to five	175
hundred dollars to charge to any person who files a petition for	176
foreclosure on a residential property, except as division (F)(3)	177
of this section otherwise provides. The fee shall be in addition	178
to any other filing fee or court cost that otherwise applies to	179
the filing. The clerk of courts shall pay all moneys collected as	180
a residential foreclosure filing fee to the county treasurer for	181
deposit into a residential foreclosure mediation fund the	182
treasurer establishes. Upon an order of the court, the treasurer	183
shall disburse moneys from the fund to reimburse the court for	184
any foreclosure mediation costs the court incurs pursuant to the	185
foreclosure mediation program it establishes pursuant to section	186
2303.24 of the Revised Code. If the amount collected as	187
residential foreclosure filing fees is more than the amount	188
sufficient to satisfy the purpose for which the fee is imposed,	189
the court may declare a surplus and expend the money for other	190
costs related to residential foreclosure actions.	191

(2) The fee that a filing party pays pursuant to division	192
(F)(1) of this section is an expense that the filing party may	193
recover from the sale of the property or as part of a deficiency	194
judgment.	195

(3) The fee that division (F)(1) of this section establishes	196
does not apply to any foreclosure filing based on a lien for	197
delinquent taxes.	198

Sec. 2303.24.  A court of common pleas shall establish a	199
program of mandatory mediation to be conducted by a	200
court-appointed mediator that shall apply to all foreclosure	201
actions on occupied residential structures, except for those	202
listed in division (B) of section 2308.02 of the Revised Code.	203

The foreclosure mediation program shall be consistent with	204
sections 2308.02 to 2308.05 of the Revised Code.	205

Sec. 2308.01.  As used in this chapter:

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(A) "Occupied residential property" means real property with	207
a structure containing four or fewer residential units, or an	208
individually owned condominium unit, occupied by the owner of the	209
property or a tenant of the owner;	210

(B) "Filing party" means the party who files an action for	211
foreclosure on a residential property. "Filing party" does not	212
include any person who files for a foreclosure action based on a	213
lien for delinquent taxes.	214

Sec. 2308.02.  (A) Except as otherwise provided in division	215
(B) of this section and division (E) of section 2308.05 of the	216
Revised Code, no action for foreclosure on an occupied	217
residential property shall proceed unless the filing party and the	218
homeowner participate in foreclosure mediation pursuant to the	219
program the court establishes under this section and section	220
2303.24 of the Revised Code.	221

(B) The mediation this section requires does not apply to any	222
of the following:	223

(1) A foreclosure filing that is based on a lien for	224
delinquent taxes;	225

(2) A foreclosure action on a property that is not an	226
occupied residential property;	227

(3) A foreclosure action in which the property ownerdoes not	228
answer or otherwise respond to the summons and complaint within	229
twenty-eight days after its issuance.	230

(C) The court shall adopt rules that establish training	231
requirements for mediators that the court appoints under its	232
foreclosure mediation program. The rules shall comply with rule	233
sixteen of the rules of superintendence for the courts of Ohio,	234
and shall include all of the following as minimal requirements:	235

(1) Twelve hours of basic mediation training;

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(2) Foreclosure mediation training approved by the supreme	237
court;	238

(3) Two hours of training on the provisions of Chapter 2710.	239
of the Revised Code.	240

(D) The court may appoint volunteer mediators or mediators	241
who require a fee to conduct the mediations in its foreclosure	242
mediation program, so long as the mediator meets the court's	243
training requirements. The court shall pay any costs of mediation	244
from the residential foreclosure mediation fund the county	245
treasurer establishes pursuant to division (F) of section 2303.201	246
of the Revised Code.	247

Sec. 2308.03.  Along with the summons that the clerk of	248
courts issues when a foreclosure action is filed on a residential	249
property, except when the filing is based on a lien for delinquent	250
taxes, the clerk shall provide a written notice of the mediation	251
consistent with division (A) of this section and the information	252
described in division (B) of this section.	253

(A) The written notice the clerk provides shall include all	254
of the following:	255

(1) That the filing party and the owner of an occupied	256
residential property are required to participate in mediation with	257
a court-appointed mediator as a condition of the foreclosure	258
action proceeding;	259

(2) That the homeowner has twenty-eight days to answer or	260
otherwise respond to the summons and complaint, that in any	261
answer or response the homeowner should assert whether the	262
property is an occupied residential property, and that if the	263
homeowner does not answer or otherwise respond within twenty-eight	264
days after the service of the summons and complaint, the	265
mediation will not be held and the filing party may seek a	266
default judgment;	267

(3) That upon receiving an answer or other response from the	268
homeowner, the court will schedule the mediation to be held	269
within sixty days and will notify the filing party and the	270
homeowner of the date, time, and place of the mediation	271
meeting;	272

(4) That all further proceedings will be stayed pending the	273
filing of the mediation report;	274

(5) That the homeowner may be accompanied and represented by	275
an attorney at the mediation;	276

(6) That at the discretion of the mediator, the first	277
mediation meeting may be held by telephone.	278

(B) The information the clerk provides along with the summons	279
and complaint shall include information about programs that help	280
homeowners who face foreclosure, including information on state	281
programs such as the "save the dream program" and any local	282
programs organized by local task forces or other entities.	283

Sec. 2308.04.  (A) Upon receiving a homeowner's answer or	284
other response to the clerk's summons and complaint in a	285
residential foreclosure action, if the property is an occupied	286
residential property, the court shall appoint a mediator who is	287
qualified pursuant to section 2303.24 of the Revised Code and	288
schedule a mediation meeting to be held within sixty days after	289
receiving that homeowner's answer or other response. The clerk	290
shall provide the filing party and the homeowner written notice	291
of that meeting. The notice shall include the name of the	292
mediator and the date, time, and place of the mediation meeting,	293
or information with respect to establishing the date, time, and	294
place of the meeting. The notice also shall include a statement	295
that the homeowner has a right to be accompanied and represented	296
by an attorney.	297

(B) If the homeowner does not answer or otherwise respond to	298
the summons and complaint in a residential foreclosure action	299
within twenty-eight days after the service of the summons, or if	300
the property is not an occupied residential property, the	301
mediation requirement established in section 2308.02 of the	302
Revised Code does not apply and the filing party may proceed	303
pursuant to usual procedures in the foreclosure action.	304

Sec. 2308.05. (A) A foreclosure mediation meeting shall	305
proceed according to Chapter 2710. of the Revised Code unless	306
otherwise provided.	307

(B) At the discretion of the mediator, the first mediation	308
meeting may be conducted by telephone. The mediation shall	309
continue for as many sessions as the mediator determines is	310
beneficial, at the discretion of the mediator.	311

(C) Upon a reasonable request of either party that certain	312
documents be provided to the mediator, or at the mediator's	313
discretion, a mediator may require a party to provide those	314
documents. The privileges and exceptions pertaining to mediation	315
communications that are contained in Chapter 2710. of the	316
Revised Code apply to foreclosure mediations.	317

(D) Any person who represents a party attending a mediation	318
meeting may fully negotiate on behalf of that party in negotiating	319
a compromise.	320

(E) If the homeowner does not attend a scheduled mediation	321
meeting, the mediator immediately shall report this to the court	322
and the foreclosure shall proceed as if the mediation meeting	323
had been held. If the filing party does not attend a mediation	324
meeting, the court shall, subject to a showing of good cause,	325
dismiss the foreclosure action.	326

(F) A mediator shall prepare a written report of the	327
mediation and provide that report to the court within fourteen	328
days after the final mediation meeting. The mediator shall include	329
in that report the dates of all scheduled mediation meetings,	330
whether the mediation was successful in resolving the issue,	331
whether both parties attended scheduled mediation meetings and	332
participated in good faith, and any other information the mediator	333
considers appropriate. The court shall lift the stay on the	334
foreclosure proceedings upon the filing of the mediator's report.	335

(G) The clerk shall serve all parties with a copy of the	336
mediator's report.	337

(H) A homeowner who filed a response that is not an answer	338
shall have twenty-eight days after the filing of the mediator's	339
report to answer, or with leave of the court, to otherwise	340
respond to the complaint.	341

Sec. 2323.06. In addition to the mediation that section	343
2308.02 of the Revised Code requires, in an action for the	344
foreclosure of a mortgage, the court may at any stage in the	345
action require the mortgagor and the mortgagee to participate in	346
mediation as the court considers appropriate and may include a	347
stipulation that requires the mortgagor and the mortgagee to	348
appear at thethat mediation in person.	349

Section 2.  That existing sections 2303.201 and 2323.06 of	350
the Revised Code are hereby repealed.	351