Sharp v. Kuhn

In Sharp v. Kuhn (Oct. 4, 1978), Fayette County App. No. 78 CA 10, 1978 Ohio App, James and Juanita Sharp instituted a foreclosure action against Phillip and Nancy Kuhn. While this foreclosure action was pending, the Kuhns executed another mortgage with the appellant, Heinold Hog Market, Inc. ("Heinold"). This mortgage was recorded the same day as the filing of a judgment entry authorizing a sheriff's sale of the property. Heinold moved to intervene before the property was sold. The trial court denied this motion and Heinold appealed. On appeal, the Sharp court addressed whether a junior lienholder (Heinold) could intervene and become a party in the proceedings when it has an interest relating to the subject property. The Sharp court found that Heinold had a right to intervene under Civ.R. 24(A), stating that: "a lien claimant has a right to be made a party and to establish his interests in the proceeds of sale of the subject real estate as long as the proceeds of sale are in the custody of the court." The Sharp court also noted that: "a prior encumbrancer is a necessary party where a sale of the entire property is desired upon the foreclosure of a mortgage; this is requisite in order that the amount of the prior encumbrance may be ascertained and paid out of the proceeds of the sale and in order that the purchaser may be thus protected." Furthermore, "a lienholder may be made a party after the sale in order that he may participate in the distribution."