Nancy Nix, the Butler County, Ohio Auditor, has released her summary of the outcome of the property tax revaluations for 2023 (released with the 2024 tax bills).  The report is linked here.

Some report highlights:

  • She explains that eight of the school districts are “below the 20-mil floor,” meaning that there is no tax relief in those school districts due to the “reduction factor” that otherwise automatically rolls back taxes in Ohio as valuations increase.  Those school districts are: Edgewood, Hamilton, Madison, Middletown, Monroe, New Miami, Ross, and Talawanda.
  • The median increase in valuations in Butler County was a whopping 37%.
  • The resulting net tax increases by district are enumerated (but not the valuation jumps alone) and range from a high of 28.41% in parts of the Talawanda school district and as low as 4.61% in parts of the Lakota School District.

This “tax year” is one for the record books.

 

 

On the home page of the web site of Hamilton County Auditor Brigid Kelly, she has a blog.  In today’s entry on that blog, is her final rundown of valuation increases in each neighborhood of Cincinnati and each other city, village and township in Hamilton County.  It also shows the net tax increase after the state statutory rollbacks are included.

That accounting is here.  For homeowners and real estate professionals, it is enlightening.  Here are some highlights:

  • The Cincinnati neighborhood with the greatest valuation increase is East Westwood at 84.12%.
  • The Cincinnati neighborhood with the smallest valuation increase is the Central Business District at 6.55% (the residential neighborhoods with the smallest increase are English Woods and Fay Apartments).
  • The overall increase throughout the City of Cincinnati is 26.65%.
  • In Hamilton County, the political subdivision with the greatest increase is Lincoln Heights at 69.23%.
  • In Hamilton County, the political subdivision with the smallest increase is Mariemont at 12.6%.
  • The overall increase throughout Hamilton County is 28.35%.

She also shares the impact of the Ohio property tax rollback, that automatically rolls back rates as valuations climb.

  • Inside the City of Cincinnati, while values climbed 26.65%, taxes levied increased “only” 16.05%, meaning the rate rolled back a net 10.6%.
  • In Hamilton County, the values jumped 28.35%, but taxes hiked only 11.74%, meaning the average rate rollback was 16.61%.

Great reading.  Enjoy!

If you need help with an Ohio or Kentucky property valuation challenge, or to learn more about the process, contact Chris Finney (513.943.6655) or Jessica Gibson (513.943.5677).

Now that new Auditor’s valuations are out in Hamilton, Butler, Clermont and Montgomery counties (as well as another 20-25 counties throughout Ohio), our firm is experiencing a record number of calls and emails on property tax valuation challenges.  We also have taught four seminars on the topic just in the past week to more than 200 participants.  Based upon our experience and questions raised in these seminars, here are some random thoughts, hopefully providing some wisdom on the topic:

  1. Most — if not all — of our calls and emails start with this line: “I am calling [writing] because the Auditor raised my valuation by xx% from last year.”  OK, that’s interesting and certainly may seem extreme, but (a) it is utterly the wrong starting point and (b) it is completely irrelevant to our analysis and that conducted by the Board of Revision.
  2. The reason this is entirely irrelevant is that (a) a property owner in 2024 (for their 2023 valuation) is entitled to have his property valued at fair market value as of January 1, 2023.  Fair market value is defined as “what a reasonable buyer would pay a reasonable seller, neither party being under undue duress or motivation.”  This is the same valuation formula in which buyers, sellers, lenders, Realtors and appraisers typically engage.  You are not entitled to a lower number because it was lower last year and (b) thus, comparing a newer (and possibly proper) valuation to an earlier incorrect valuation places the analysis in the wrong framework.  The question is not to compare to last year’s valuation.  Rather, the question is: Does your current valuation reflect the value of the property as of January 1, 2023 (the valuation date in question for challenges this year)?
  3. Property owners, including homeowners, are frequently lulled into a belief that they have a statutory right to a lower valuation than “fair market value” — that the Auditor or Board of Revision somehow look at valuation differently than those transactional parties.  This simply is not so.  So, getting the first tax bill at full fair market value can be a jolt.
  4. To my surprise, I received an email last year from a friend and former client who lives in Western Hills: “How could the Auditor think property values have increased 30% over the past three years?”  My response: “Maybe because the nation is experiencing an unprecedented housing boom and Cincinnati/Hamilton County are ground zero of the boom.”  His response: “I had no idea.”  My response: “Do you live under a mossy rock?  It’s been in the newspaper three times per week for the past three years.”  You really do need to be out of touch not to understand the aggressive housing market that has existed some the pandemic began.
  5. The previous blog entries I wrote indicating that tax rates would roll back nearly the same percentage as the average valuation increases turns out not to be accurate.  The rate rollback certainly is there, but it is smaller than I expected and it varies by property categories (commercial, agricultural and residential) and by taxing district — school district and city, village, and township.  Our quick analysis, for example, is that in the City of Cincinnati/Cincinnati Public Schools (the largest taxing district in southwest Ohio) valuation went up 26.65% and the rate rollback was slightly more than 10%, yielding an overall average tax hike of 16.05%.
  6. For many property owners, we are recommending that they not challenge their valuation.  Despite the sticker shock of all of this, most residential properties and certain commercial properties (such as apartment buildings and industrial/warehouse buildings) have in fact soared in value.  Remember, the Board of Revision can INCREASE a valuation as well as provide a REDUCTION, so be careful about asking them to take a close look at your valuation.
  7. This is so also because frequently, the cost of the proceeding (maybe $2,500 for a residential property and $10,000 for a commercial property) exceeds the available savings.  We recommend paying a small sum to an appraiser to get a preliminary valuation before deciding if you want to proceed further, comparing the 3-year savings (a “win” is guaranteed by law to last at least three years) to the out-of-pocket costs.
  8. Unless a recent sale is involved, we generally recommend against proceeding without an appraisal.  For recently arm’s length sales, the sale price is the proper valuation.
  9. When reacting to your new tax valuation, remember that this is a cumulative increase since the last revaluation three years ago.  If we had an average of 8.0% property valuation growth during those three years, the compounded valuation hike would be 25%, and 10% per year would be a 33% bump.  So, (to that fellow who lives under a mossy rick in Western Hills) it’s not hard to see how Auditors in southwest Ohio are seeing average increases of 30% to 40% over the triennial.

If you need help with an Ohio or Kentucky property valuation challenge, or to learn more about the process, contact Chris Finney (513.943.6655) or Jessica Gibson (513.943.5677).

As clients “play out” the path of their litigation, they may plan on delaying the consequences of a possible loss at trial court for a year or two by “appealing all the way to the Supreme Court.”  Comfortable that they can postpone payment of any possible judgment 24 to 36 months into the future, they continue with the path of defending a suit, they have figured out — before we ever speak about it.

“Stay” typically requires a supersedeas bond; otherwise judgment collections may proceed

However, it’s not that simple.  As a fairly firm proposition of law, there is no “stay of execution” pending the outcome of an appeal unless and until the party against whom judgment is obtained has posed a supersedeas bond in the full amount of the “cumulative total for all claims covered by the final order.” R.C. §2505.09.

… an appeal does not operate as a stay of execution until a stay of execution has been obtained pursuant to the Rules of Appellate Procedure or in another applicable manner, and a supersedeas bond is executed by the appellant to the appellee, with sufficient sureties and in a sum that is not less than, if applicable, the cumulative total for all claims covered by the final order, judgment, or decree and interest involved, except that the bond shall not exceed fifty million dollars excluding interest and costs, as directed by the court that rendered the final order, judgment, or decree that is sought to be superseded or by the court to which the appeal is taken.

In other words, after a party to a case obtains a monetary judgment against another party (typically, but not always, a plaintiff obtains a judgment against a defendant), absent a “stay” issued by the Court, the party holding the judgment may pursue collections against the party against whom judgment has been rendered while the appeal is being briefed, argued and decided.  This means that the prevailing party may pursue foreclosure against real property, garnishment of bank accounts, attachment of wages and other collections actions, notwithstanding the slow process of a pending appeal that the opposing party believes will reverse the trial court judgment.

How a supersedeas bond is obtained

The bond can be issued by a private surety, such as an insurance company.  But the insurance company wants to take zero risk in the issuance of that bond, so they will do so only upon posting of proper security such as cash, accounts containing stocks and bonds, or real estate with sufficient equity.  And the outcome of this is that the eventual bankruptcy of the losing party, hiding of assets, dissipation of assets, death of the losing party, and other intervening events will not impair the collectability of the judgment by the prevailing party.

Posting of real estate as security

Another avenue to a “stay” order is the conveyance of property of adequate value with the Clerk of Courts, R.C. § 2505.11.  And, under 2505.12, exempt from the bond-posting provisions are (i) fiduciaries who already have posted bonds, with surety in accordance with law, (ii) the state of Ohio and its political subdivisions, and (iii) public officers of the state and its political subdivisions who were sued only in their official capacity.

How it really plays out

How does this, then, typically play out?  First, I find that losing defendants don’t just want to “write a check” to pay the judgment.  Rather, they ignore it until collections actions are taken.  Second, I have found that losing parties willfully ignore the plain language of Revised Code §2505.09 and ask for a bond amount less than the “cumulative total for all claims covered by the final order.”  This request, in our experience, is routinely denied.

Then, there are circumstances in which the losing party simply can’t pay the judgment amount and therefore also can’t post a bond in that amount.  In that circumstance, the losing defendant has the option to declare bankruptcy.  In other circumstances, the losing party has no identifiable assets, but he must honestly submit to a judgment debtor examination and tell the prevailing party’s attorney the location of his assets.  It is a bad idea — one we routinely reject — for a losing party to transfer assets to avoid collections upon loss in litigation.  What this means, for example, is moving around assets for the purpose of avoiding the prevailing party from collecting is as bad of an idea as it is appealing.

So, when Gibson Bakery sued Oberlin College for defamation and obtained a $25 million judgment, the Judged ordered a stay of execution pending appeal only upon the posting of a $36 million bond.  Last week, a $1.8 billion judgment was rendered against the National Association of Realtors and two other defendants.  Because the matter litigated is under the Sherman Antitrust Act, the damages are to be tripled, likely bringing the judgment amount to $5.4 billion.  One of the Defendants is a Berkshire-Hathaway company, which certainly has the cash sitting around for that, but will they post that for just one of their subsidiaries and to pay the freight for all of the defendants?  For most parties, including the other two defendants, they simply would not have the assets available to them to post a supersedeas bond of that magnitude.

As litigants want to be on the “offense” in collections, as the defense — against a diligent prevailing party — is no fun and there are few places to turn to avoid “paying up.”

Conclusion

In your business affairs as well as your litigation, be prepared to accept the accept the consequences of your decisions.  In litigation, those consequences can be both unexpected and expensive.  If your plan is to postpone collections until appeals are exhausted, that may mean posting a bond for the value of the judgment.

On November 3, 2023, we won a big victory for our client, a humble carpenter who lives in Clifton, at the First District Court of Appeals of Ohio.  In the decision, the Appeals Court affirmed a verdict in our client’s favor for the removal of a large tree from his property without his permission.

At trial, our firm not only proved the trespass and actual damages but also proved malice by the Defendant by “clear and convincing evidence,” entitling the client to receive as part of his award reasonable attorneys fees and expenses for taking the case to trial.

A copy of Friday’s appellate court decision is here.

Background

We regularly counsel our clients on the time, expense and sometimes disappointing outcomes in civil litigation.  It is a major part of the challenges our firm and our clients face in court.  And typically small dollar cases — regardless of how just the cause may be — are just not worth pursuing.

Nonetheless,  in 2019 we met with client William Chapel at his property and discussed the removal of his 50+ foot black walnut tree by his neighbor without permission.  He came home from work one day, and the tree was gone, it was taken down, along with an old wood screening fence that had been on his property, all without his permission.  We believed in the case and in the client, so we accepted the case.

Scorched earth strategy of defendants

It is typical in litigation that opposing counsel does not intend to win on the merits of their case, but rather by running out the clock and running the bill to heights that the amount in dispute will not justify, hoping our firm and our clients will “just go away.”   Well, we never “go away.”

Victory at trial court

We here wrote about the $222,836.53 verdict that was rendered in our client’s favor last December before the trial court for the removal of that tree, the majority of that verdict being punitive damages, attorneys fees and out-of-pocket expenses associated with the exhaustive litigation path chosen by the Defendants.

Conclusion

In addition to the $222,836.53 award at the trial court, the Court indicated that attorneys fees and expenses incurred in collections matters and in appellate work would supplement the award, so this week we will be preparing a supplemental fee application,  hoping to finalize the significant win for our client, and the delivery of justice to our community.

Thanks to our able and persistent team of Christopher Finney, Julie Gugino, and Jessica Gibson who saw this case through to the end.

A study by the Tax Foundation shows that Ohio ranks ninth among states in the nation for “Property Taxes Paid as a Percentage of Owner-Occupied Housing Value” for 2023.  Read the study here (click on table 33).

The top 10 and their rates as a percentage of Owner-Occupied Housing Value follow:

  1. New Jersey, 2.23%
  2. Illinois, 2.08%
  3. New Hampshire, 1.93%
  4. Vermont, 1.83%
  5. Connecticut, 1.79%
  6. Texas, 1.68%
  7. Nebraska, 1.63%
  8. Wisconsin, 1.61%
  9. Ohio, 1.59%
  10. Iowa, 1.52%

Many of our readers will note that their own residential property taxes range from 2.25% to 3.5%, and we believe the reason is that the urban areas of Ohio have greater-than-average property tax rates than many rural areas.

 

Fraudsters — both high-tech and old school — daily attempt to use real estate and other transactions to scam our law firm, our title company and our clients out of money and property.  To date, we have not been hit (some of our client have been), but we are always on guard.  Fraudsters forever keep trying.

As you are growing your business — and these tips apply to businesses large and small, old and new — it is a good idea — from time to time — to gather your financial team and key executives, along with your IT professionals, and simply have a conversation about “tightening things up” and avoiding common scams.

  • Are your checks (and cash) — incoming, outgoing and blank checkbooks — tightly secured and under watchful eyes?
  • Are your systems too open and accessible (a simple question such as automatic screen savers with passwords that trigger when an employee is away from his desk)?
  • Do you have proper insurance to protect your real risks?
  • Do you have proper training and systems in place to avoid common and emerging risks?

In the end, we all have some exposure.  So, eternal vigilance, the latest technology protection and training of employees new and old, is the only answer.  Part of this caution is constantly “tightening up” and “changing up” your transactional practices and security procedures to avoid the latest scam.

Here are some common scams we and our clients have seen:

  1. In the low-tech world, fraudsters simply borrow money based upon false promises and representations.  This is a time-tested and common scam.  It is borne of two human instincts: (a) we want to trust people and (b) we are lured by the promise of a better-then market return on investment (if it’s “too good to be true,” it’s probably fraud).  Many of these fraudsters have the appearance of business stability and financial success, but are willing to offer above-market interest rates for a personal or business loan.  In the end, these loans are not properly secured and are not properly guaranteed, and the fraudster never had the ability or intent to pay back the monies.
  2. Similarly, we have seen clients purchase assets or entire businesses that are subject to liens or governmental enforcement actions, or the purchase price is based upon false financial documents or hidden property condition.  In a business transaction, be careful of slippery buyers, sellers and attorneys who can make fraudulent closing adjustments as the numbers are flying about in a closing.
  3. Another low-tech fraud is thieves who rifle U.S. Postal Service mail boxes (both the blue drop boxes and mailboxes at your home or business), steal checks, and then change the payee and amount on the check and cash it.
  4. Pay attention here: In the high-tech world, fraudsters hack into a Realtor, investor or title company email system, and steal their email signature and logo, and the details of an imminent transaction.  Then, they establish a similar email domain (with maybe one letter changed or a “dot” added).  Using the new domain, they send an email to the party who is to originate a wire with false wire instructions — instructions straight into the fraudster’s overseas wire address.  The email by all appearances looks entirely legitimate and it’s from a name you know and with whom you actively are dealing.
  5. We have written about sellers who don’t own actually property attempting to mortgage or sell the same.  Read here and here.
  6. Finally, fraudsters use sophisticated hacking and ransomware viruses to invade your critical computer systems.  They corrupt your data and hijack control of your systems, relenting only when an exorbitant ransom has been paid.  Extortionists have taken over critical infrastructure such as oil pipelines, hospitals, and municipalities.  Most recently, the vendor running the Cincinnati Multiple Listing Service and dozens of MLSes nationwide was the victim of a weeks-long ransomware attack that was costly and disruptive.

So, how can you protect yourself in this world increasingly fraught with risk of theft of your valuable data, money and time by those with malintent?

Here are a few ideas:

  • Stay in your lane.  Let lenders lend.  In most cases, they are good at it.  If a borrower is coming to you for a loan, it’s likely because he’s not eligible for conventional financing, and that ineligibility is for a good reason — he’s either lying, broke or both.
  • Carefully use due diligence and proper documentation.  If you are going to lend money or buy assets or a business, perform the kind of due diligence a prudent and sophisticated buyer or lender would undertake and obtain appropriate security and guarantees of a loan.  We discuss some of the pitfalls of private lending here.  Similar risks can exist in buying assets and buying whole operating businesses.  Part of this process is assuring that the borrower actually owns the assets he is selling or pledging (free and clear) and that your security interest is properly and timely perfected as against that asset.  In a real estate-based loan, title insurance is a key way to assure this is so.  In purchasing a business, the risk is even greater in that the corporate entity may have significant residual undisclosed liabilities or governmental enforcement problems. That seller — and your purchase monies — will completely disappear by the time you learn of the fraud.  Finally, the #1 “due diligence item” is to know your employees, know your borrowers, know your sellers.  The internet (and now artificial intelligence tools) is an incredibly powerful way to do background on parties to a business transaction,  Use it.  Cautiously heed the lessons of what you find.
  • Properly perfect security interests and document guarantees.  When banks lend money, they want proper security for their loans and appropriate guarantors for their repayment.  In most cases, banks are over-protected, and they want it that way.  You do too.  In both real estate and equipment-based transactions, we have seen borrowers pledge the same assets to different lenders as security for two or more loans.  Obviously, in that circumstance someone is going to be left holding the bag.  (Yes, fraudsters are that shameless.)  Using proper real and personal property title examinations and lien searches and using appropriate documentation for loans and guarantees is critical.  For example, in Kentucky, in order for a personal guarantee of debt to be enforceable, it must follow specific statutory requirements.  Without that, it’s worthless.
  • Don’t put checks or other key financial documents in blue U.S. Post Office boxes on the streets and don’t have checks sent to a mail box at your business or residence that is accessible by others.
  • As to wire fraud, you can’t be careful enough.
    • The sender of a wire should assume everything you see is a lie, the fax, the email, the logo, the wire instructions, the sender web site, the sender.  Everything.  Always verify everything via voice using a trusted and known telephone number for the wire recipient.
    • If you smell a rat, don’t initiate the wire.  Wait and check some more.  Urgency — especially inappropriate urgency — is a key indicator of fraud.
    • Read carefully the sender email addresses and the email.  Many times the email domain of a fraudster does not exactly match the domain name with which you have been dealing.  Note misspellings and grammatical errors in the text of an email that may come from a foreign sender or one unfamiliar with the parties and the transaction.
    • Note last-minute changes, especially of wiring instructions.
    • Note changes made on the Friday before a holiday weekend or before another holiday, and before the end-of-month, when Realtors and title company employees are more likely to be busy and careless.
  • Buy cyber insurance.  Your property and casualty insurance agent can offer your business cyber protection.  It requires you to use good practices for the insurance to invoke, but both the coverage and the required procedures are a critical part of best practices protection.
  • As to ransomware attacks, we have two pieces of advice:
    • First, according to the Harvard Business Review (citing IBM), 60% of cyber attacks originate inside your organization.  Either a malevolent employee or ex-employee intent on theft or vandalism (75% of attacks) or a negligent employee (25% of incidents) who falls for a phishing attack scam cause most losses.  So, hire and retain employees of good character, monitor their activities, and carefully, comprehensively and quickly cut off computer access of former employees.  Segregate access to data in your organization to those who need that data, and no one else.
    • Second, every computer system is vulnerable.  Every one.  But homegrown (premises-based and self-maintained) servers are more vulnerable to a hack (in my opinion).  As a result, we (a) have migrated the vast majority of our data into the Microsoft cloud (other providers are also available) (heaven help the world if they hack the Microsoft cloud!), (b) have segregated access to data to employees who need that access, and (c) have make serial backups of data that is not in the cloud.
  • Understand the risks, develop training and systems to avoid the risk, and train all of your employees on cyber security procedures.

As our attorneys can assist with due diligence and proper documentation (including title insurance) of your transactions, call us!

In litigation, parties may exchange thousands of documents, some of which may contain sensitive information about personal matters, privileged documents and documents containing sensitive financial and tax information.  As a result, many times parties want to enter a “Protective Order” from the Court that allows for such documents to be produced with varying levels of agreed confidentiality protection.  In this blog entry, we explore (a) the true and fundamental need for such protections (usually most of it it is just a waste of time) and (b) some of the abuses we have experienced under such Orders.

In short, (a) they should not be entered casually — but carefully and thoughtfully, (b) there needs to be escape or corrective clauses for inappropriate unnecessary designation of documents as confidential, and (c) there should be penalties on counsel for abusing the Protective Order privileges.

What is a Protective Order?

Typically, a Protective Order allows one party or the other to designate documents as “confidential,” and those documents so designated are protected from public release.  Further, when sharing them with expert witnesses and other third parties (such as a technical consultant for organizing electronic discovery).  That makes sense.  The parties should not post on social media or circulate to competitors truly confidential business plans, financial documents and tax documents.

That’s fine as far as it goes, but then the Protective Order typically provides that filing any such document with the Court must be under seal.  To me, this runs contrary to the principle that trials in the U.S.A are to be held in the public.  Shielding the truth from public view should be done with caution, sparingly.  But beyond that is the hassle of carefully making sure you follow the correct procedures.  It drives up the cost of litigation, and the penalties for making an innocent mistake.

And then, beyond all of those protections, are production “for attorney eyes only.”  Huh?  We can’t share certain documents with our clients?  Ridiculous in 99.997% of instances.  What is so confidential that our own clients can’t be part of information sharing to develop their claims or defenses?  Really?

Further many times Protective Orders contain “claw back” provisions wherein documents that are privileged from disclosure (such as attorney-client or spousal privilege documents) can be (or must be) returned as if unseen, and copies not retained.

Digging your own grave.

There is nothing so deadly in the law as concessions and admissions you yourself make, and a Protective Order is of the type that the Judge will say: “Well, you agreed to this.”  Thus, a Protective Order is a grave you have dug for yourself.  Sign on with great caution.

Judges hate discovery disputes.

Judges are busy with other things, criminal trials, search warrants, temporary restraining orders, and on and on.  The rules of discovery are fairly clear and the parties should play fair.  But they don’t.  And then we must burden a Judge — who might have a murder trial in front of us — with playground disputes about non-production. It’s tedious and unproductive, but sometimes necessary.  But this is complicated when a party thoughtlessly agrees to handle documents in a certain way that later becomes impractical or burdensome.  Asking the Judge to unwind a dispute over the designation and use of documents as defined and prescribed by a Protective Order is more burden for the Court, a burden with which they don’t want to deal, and may simply refuse to address.

Judges are mixed on requiring Protective Orders.

As a result, I generally oppose the use of most protective orders — it just increases the cost and time for litigation.  We are talking tens of thousands of wasted dollars and years of wasted time. So, the request for a Protective Order then ends up before a Judge.

In one active case I have now, we are litigating against a “pay lake” operator.  He has five small lakes, and charges the public to fish in them, and charges for works, beer, coke and chips.  That’s about the level of privacy and complexity of his finances.  “He sells worms, for God’s sake, I say.”  He insisted that his financials and tax returns be disclosed under a Protective Order.  Huh?  What is secret and confidential about selling worms and renting the right to fish in stocked lates at $15 per day?  But sure enough, the issue of a protective order was pursued through the Magistrate and further into the Common Pleas Court with Objections to Magistrate’s decision – attorneys can and will fight over everything.  Fortunately, in this already expensive litigation, the Court rejected the requirement for a Protective Order, allowing us to access the documents sought without restrictions.

In a second case, a personal injury case against a major public utility, the utility sought and obtained (and as discussed below, abused) the Protective Order, complicating already overly-expensive litigation.

Discovery abuse.

Then, once a Protective Order is in place, invariably opposing counsel will abuse his privileges under the Protective Order:

  • In the case of the public utility defendant noted above, they designated 1,500 pages of materials that they themselves previously had posted on line.
  • In another case, the Defendants marked more than 200 entirely blank pages as “Confidential.”
  • In a recent case, the Protective Order had been entered that included the right to designate hyper-sensitive documents as “For Attorneys Eyes Only.”  The case was about residential (Single Family Home) property management.  The opposing attorney designated Quick Books records of the financials of the properties as “for attorneys eyes only.”  Now, this was ridiculous.  What is so hyper-sensitive that we could not share property management financial details with our own client?  It was ridiculous.

Confusion about use at trial.

Then, the funniest thing we had recently in a case with a Protective Order: The Order allowed use of the documents marked as “confidential” for “litigation purposes,” which to me means using them as Exhibits at depositions and at trial.

Well, opposing counsel threw a fit about me using a document — a second purchase contract that came after the one being contested at trial — as an Exhibit at Trial.  Huh?  If that’s not “litigation purposes,” I don’t know what is.

Well, the Judge agreed with me and we were able to use it at trial, but not after significant (15+ minutes) or discussion before the Judge and the Judge slobbering all over himself apologizing that this super-secret document had to come into the record.

One more thing to argue about.

The point of this blog entry is that I don’t like to use Protective Orders and they only should be requested — and permission granted — when they really are needed.  Otherwise, they become one more thing the client pays to draft, negotiate and then endlessly argue over as the litigation progresses.

Just say “no.”

 

 

As we approach our 10th anniversary (more on that to come later), here are the accomplishments and market position of Finney Law Firm, LLC and Ivy Pointe Title, LLC by the numbers.

  • 17 attorneys.
  • 9 paralegals.
  • 3 office locations.
  • 3 wins at the U.S. Supreme Court.
  • 5 wins at the Ohio Supreme Court.
  • More than 18 wins at the Federal and Ohio Courts of Appeals.
  • 8 certified class actions.
  • 13,652 Tweets (now, “X”s).
  • 867 blog posts.
  • 63 newsletters.
  • 9,794 successful real estate closings (est.).
  • $56 million in property tax savings (est.).
  • 73 civil rights cases and taxpayer actions.

Thanks for being a part of it!  Much more to come!

As real estate attorneys and licensed Ohio title insurance agents, we must constantly be on the lookout for the latest scheme to defraud buyers, sellers, lenders and others in real estate transactions.  We have already written about ever-persistent attempts at wire fraud.  (This one is never going away, we fear.)  But yet another fraud that is borne from the bountiful information available on and the anonymity of the internet is on the rise: Seller impersonation schemes.

According to one of our underwriters, First American Title Insurance, Seller impersonation schemes have increased 73% in 2023.  We personally have seen this attempted — but caught — to two separate commercial Realtor clients.

Here’s how the scam works, according to First American:

  1. Scammers search public records to identify real estate that is free of a mortgage or other liens. These often include vacant lots or rental properties. The identity of the landowner is also obtained through these public records searches.
  2. Scammers pose as property owners and contact a real estate agent to list the property for sale. All communications are through email and other electronic means and not in person.
  3. The listing price of the property is typically set below the current market value to generate immediate interest in the property.
  4. When an offer comes in, the scammer quickly accepts it, with a preference for cash sales.
  5. The title company or closing attorney transfers the closing proceeds to the scammer. The fraud is typically not discovered until the time of recording of transferring documents with the applicable county.

The natural reaction of a Realtor or buyer is: “that it’s the job of the closing attorney or title agent to ascertain the true identity of the seller,” but in the cases of limited liability companies and corporations, there typically is no public information at all (including the Secretary of State’s records), to ascertain the true owners and officers of these entities.  In the case of individual sellers, if they are shipping to Ohio a notarized deed signed out of state, it is possible that no one even asked for their I.D.

Thus, not only is it not negligence on the part of the attorney or title agent to fully ferret out the “authority” question, it’s something that’s not even possible in many instances.  In short, it’s one of the inherent risks in real estate transactions.

Thus — and it sounds self-serving to say this, but it’s true — one of the only sure ways a buyer can protect himself against his scam is to purchase an Owner’s Policy of Title Insurance at the time of the acquisition.  (And, no, simply buying coverage for the lender is simply insufficient — it is in fact NO COVERAGE AT ALL for the buyer).  In the above scenario, a non-fraudulent buyer who purchases an Owner’s Policy is covered if they fall victim to this scam.

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We are tremendously proud of the title presence we have in Ohio and Kentucky through Ivy Pointe Title.  Our residential division headed by Rick Turner (513.943.5660), and our commercial division headed by Eli Krafte-Jacobs (513.797.2853) are — as our tag line says — “accurate and on time, every time.”  They are here to protect you from these kinds of scams and schemes.  Let us know how we can help you safely close your next transaction.