Consumer Bankruptcy Journal Spring 2016 | Page 48

PROPERTY TAX CERTIFICATE CLAIMS HANDLING TAX CLAIMS PRE-CONFIRMATION By Steven M. Palmer, Curtis & Casteel Law Group, PLLC http://curtislaw-pllc.com/ (article co-authored by Patrick D. Miller, Licenced in OH) T his article is a follow up to an article written in the Cleveland Metropolitan Bar Journal in October, 2014 wherein we looked at how tax certificates can be set up and treated in chapter 13 plans. That article resulted from several cases where tax claims were objected to post confirmation. Those claim objections resulted in a couple of opinions which formed a more secure legal basis for the way we advocated treating the claims. Soon after those decisions, the tax certificate holders began objecting to confirmation and filing their claims in the same manner as they had before the decisions. Many of those objections to confirmation were contested and one overruled objection resulted in an opinion which affirmed the treatment we sought. That opinion was appealed to the district court which has now affirmed the bankruptcy court’s ruling in In re: Sadler No: 13-17696 N.D. Ohio Eastern Division. First, background. 48 a little about the In the twelve largest CONSUMER BANKRUPTCY JOURNAL counties in Ohio delinquent property taxes can be sold to tax certificate buyers. Outside of bankruptcy, those buyers can charge up to18% simple interest and not give the parcel owner credit for having paid any of the principal balance in a redemption plan until the entire balance is paid in full to the final penny. This meant huge interest payments on often already huge property tax arrearages. The Ohio Revised Code provides that the tax certificate buyers can purchase these tax certificates in one of two ways. First, the law outlines how the certificates can be sold at public auction with interest rates starting at 18% and going down from there in .5% increments. The second method for sale of these certificates is through “negotiated sales.” Ohio Rev. Code § 5721.01 et seq. (2013). In Cuyahoga county, the most populous county in Ohio, all sales have been through “negotiated sale” to one locked in buyer at a time for the max interest rate over the last several years. The current buyer is Woods Cove III, LLC. I put Spring 2016 “negotiated sales” in quotes because the terms could not legally be any worse for the county. A recent decision in the U.S. District Court for the N.D. of Ohio Eastern Division recently affirmed the treatment many in the debtors bar had been using to treat these tax claims. In re: Jerome Sadler, 2015 WL 9474174 (N.D. Ohio Dec. 29, 2015). This article explores that decision and again gives an example of how the claims can be properly treated. Debtor’s counsel had proposed to pay the certificate holders their prepetition interest and attorney’s fees as unsecured. He had proposed to pay the certificate purchase price of the certificates as secured with 18% interest as provided for on the face of the certificates. The certificate holders objected insisting that they could add the unmatured interest that would have come due over the 60 months of the plan to the secured claim. In their appeal the tax certificate holders were insisting that they could only be paid pursuant to the state law redemption National Association of Consumer Bankruptcy Attorneys