The answer is yes. We recently handled the administration of an estate that contained a house where a murder had occurred. The payments on the mortgage on the property were in arrears, and the bank holding the mortgage had already filed a mortgage foreclosure action in the Licking County Common Pleas Court. We then filed a Complaint for Land Sale in the Probate Court specifically alleging that it was necessary to do so in order to pay all of the debts of the decedent. The action was brought pursuant to R.C. 2127.02 that provides in relevant part:

As soon as the executor . . . ascertains that the personal property in his hands is insufficient to pay all the debts of the decedent . . . and the costs of administering the estate, he shall commence a civil action in the probate court for authority to sell the decedent’s real property.”

The mortgage that the decedent gave to the bank was only one of the decedent’s debts. Any land sale authorized by the Probate Court would most likely pay off all the debts including the mortgage.

A land sale proceeding and a mortgage foreclosure action are two different types of legal actions. Mortgage foreclosure actions are filed in the General Division of the Common Pleas Court to foreclose on one debt and the Probate Court has no jurisdiction of foreclosure actions. Land sale proceedings are filed exclusively in the Probate Division of the Common Pleas Court in order to provide for the payment of the debts of the decedent. While the two actions seek the sale of real estate as an end result, they have different legal theories and different jurisdictions as is evident from the difference in the pleadings of the two actions.

The Probate Court had already decided the issue raised by the bank in its Motion to Dismiss the land sale proceeding. See In the Matter of the Estate of Marjorie Wolfe (hereinafter Wolfe), Case No. 99-0556A . In that case, the Executor brought a land sale proceeding to pay debts and named a bank as one of the defendants. The bank filed a motion to dismiss arguing that its previously filed foreclosure action then pending on the docket in the General Division of the Common Pleas Court barred the Probate Court from assuming jurisdiction to decide the land sale proceeding. The Probate Judge disagreed initially stating:

“A probate court is a court of limited jurisdiction, and may entertain only those types of actions which the General Assembly permits (citations omitted). . . . The existence of the court’s own subject matter jurisdiction in a particular case poses a question of law which the court has the authority and responsibility to determine.” (Citations omitted)

In that case, the Probate Judge correctly concluded that the Probate Court had jurisdiction of land sale proceedings pursuant to R.C. 2101.24(A)(1)(l) and R.C. 2127.02.) In his opinion, the Probate Judge discussed the cases then cited by the bank in that case and now by the bank in this case and found that they were not controlling. He reasoned that those cases were decided under a previous section of the Ohio General Code which allowed a fiduciary to file a complaint to sell real estate to pay debts in either the Probate Court or the General Division of the Common Pleas Court. R.C. 2127.02 now provides that such a complaint must be filed in the Probate Court. The Probate Judge went on to state that the Probate Court now has “exclusive” jurisdiction of actions brought by a fiduciary to pay debts of a decedent.

The bank also cited the case of Balson v. Harnishfeger (1978), 55 Ohio St.2nd in support of the lack of jurisdiction of the Probate Court in this case to decide the land sale proceeding. The Probate Judge found that case is clearly distinguishable in that it involved divorce actions filed in two different counties by the parties. The Ohio Supreme Court held that as between courts of concurrent and coextensive jurisdiction the first filed action took precedence over the latter. In our case, there was no concurrent jurisdiction as to the foreclosure action or the land sale proceeding. Each proceeds exclusively in the court where now filed. The Probate Court found that Balson had no relevance to the issues raised in the case at bar.

The real estate was included in the Inventory and Appraisal with a value of $60,000 -- lower than the tax duplicate value of $72,000. The bank’s mortgage was approximately $25,000. While a crime was committed within the house, the appraiser took that fact into consideration. Since the appraisal, the Administrator had kept the home insurance in full force and effect and filed a claim with the insurance company for restoration of the premises. The claim was allowed since the house was insured under “all risk” provisions. The house had been cleaned. The total cost for the restoration and cleaning was approximately $35,000 and was paid wholly by the insurance company. The value of the real estate had clearly been improved to the point that the bank’s security interest was no longer threatened. Indeed, the Administrator was eventually able to resume normal mortgage payments from other assets in the estate.

The property was then sold at auction and all the creditors of the decedent were paid, not just the bank as might have been the case if the foreclosure action had prevailed. In this case, our legal reasoning and persuasion were instrumental in achieving a just result for the estate and its creditors.