12 November 2026
/ Benjamin N. Hoen
The Ohio Supreme Court's Recent Impact on Foreclosure Proceedings: Rethinking Whether to Proceed to Sheriff's Sale During a Pending Appeal
Historically, it has been common practice for foreclosure plaintiffs in Ohio to proceed with a sheriff’s sale when a borrower appeals a judgment of foreclosure but fails to obtain a stay of execution pending appeal. The rationale was grounded in the mootness doctrine: once the foreclosure sale was confirmed and the proceeds distributed, the underlying controversy was generally considered moot, leaving the borrower without an effective remedy through the pending appeal. Accordingly, absent a stay of execution, foreclosure plaintiffs often proceeded with the sale rather than voluntarily delaying the foreclosure process while awaiting the outcome of an appeal.
However, a recent decision from the Supreme Court of Ohio significantly changes that analysis. In Wells Fargo Bank, National Association v. Doberdruk, 2026-Ohio-2674 (July 15, 2026), the Court held that an appeal of a judgment of foreclosure is not rendered moot merely because the property has been sold and the proceeds distributed, even where the borrower failed to obtain a stay of execution or post the required supersedeas bond.
Wells Fargo filed a foreclosure action against Doberdruk based on a defaulted mortgage loan. The trial court entered a judgment of foreclosure in favor of Wells Fargo.
Doberdruk appealed the foreclosure judgment and sought a stay of the sheriff's sale. The trial court denied the stay unless she posted a supersedeas bond of $472,905 within 21 days. Doberdruk did not post the bond.
The property was subsequently sold at sheriff's sale, the sale was confirmed, and the proceeds were distributed to the judgment creditors.
The Eighth District dismissed Doberdruk's pending appeal as moot, reasoning that once the sale proceeds had been distributed, there was no longer an available remedy. The Eighth District also relied on its prior decisions holding that restitution under R.C. 2329.45 was unavailable after distribution of the proceeds.
The Ohio Supreme Court accepted the appeal and held that R.C. 2329.45 expressly provides a restitution remedy when a judgment pursuant to which real property was sold is subsequently reversed on appeal.
The decision has important implications for foreclosure plaintiffs, mortgage servicers, and their counsel. While the absence of a stay may still permit a foreclosure plaintiff to proceed with the sheriff’s sale, the Doberdruk decision makes clear that doing so will not necessarily insulate the foreclosure judgment from appellate review. More importantly, if the foreclosure judgment is ultimately reversed, the mortgagee may face a separate obligation to make restitution to the borrower or other parties who lost an interest in the property as a result of the foreclosure.
As a result, foreclosure plaintiffs should adopt a more nuanced approach when deciding whether to proceed with a sheriff’s sale during a pending appeal or voluntarily hold foreclosure proceedings until the appeal is resolved. The decision should no longer turn solely on whether the borrower obtained a stay of execution. Instead, counsel and servicers should evaluate the nature and merits of the appeal, the potential financial exposure associated with restitution, and the practical consequences of proceeding with the sale before the appellate court has ruled.
Our team is constantly monitoring changes within the industry. If you have questions on this topic or would like to learn more about Weltman’s Real Estate Default Solutions, feel free to connect with Cleveland Shareholder Ben Hoen at any time.
This blog is not a solicitation for business, and it is not intended to constitute legal advice on specific matters, create an attorney-client relationship, or be legally binding in any way.
However, a recent decision from the Supreme Court of Ohio significantly changes that analysis. In Wells Fargo Bank, National Association v. Doberdruk, 2026-Ohio-2674 (July 15, 2026), the Court held that an appeal of a judgment of foreclosure is not rendered moot merely because the property has been sold and the proceeds distributed, even where the borrower failed to obtain a stay of execution or post the required supersedeas bond.
Wells Fargo filed a foreclosure action against Doberdruk based on a defaulted mortgage loan. The trial court entered a judgment of foreclosure in favor of Wells Fargo.
Doberdruk appealed the foreclosure judgment and sought a stay of the sheriff's sale. The trial court denied the stay unless she posted a supersedeas bond of $472,905 within 21 days. Doberdruk did not post the bond.
The property was subsequently sold at sheriff's sale, the sale was confirmed, and the proceeds were distributed to the judgment creditors.
The Eighth District dismissed Doberdruk's pending appeal as moot, reasoning that once the sale proceeds had been distributed, there was no longer an available remedy. The Eighth District also relied on its prior decisions holding that restitution under R.C. 2329.45 was unavailable after distribution of the proceeds.
The Ohio Supreme Court accepted the appeal and held that R.C. 2329.45 expressly provides a restitution remedy when a judgment pursuant to which real property was sold is subsequently reversed on appeal.
The decision has important implications for foreclosure plaintiffs, mortgage servicers, and their counsel. While the absence of a stay may still permit a foreclosure plaintiff to proceed with the sheriff’s sale, the Doberdruk decision makes clear that doing so will not necessarily insulate the foreclosure judgment from appellate review. More importantly, if the foreclosure judgment is ultimately reversed, the mortgagee may face a separate obligation to make restitution to the borrower or other parties who lost an interest in the property as a result of the foreclosure.
As a result, foreclosure plaintiffs should adopt a more nuanced approach when deciding whether to proceed with a sheriff’s sale during a pending appeal or voluntarily hold foreclosure proceedings until the appeal is resolved. The decision should no longer turn solely on whether the borrower obtained a stay of execution. Instead, counsel and servicers should evaluate the nature and merits of the appeal, the potential financial exposure associated with restitution, and the practical consequences of proceeding with the sale before the appellate court has ruled.
Our team is constantly monitoring changes within the industry. If you have questions on this topic or would like to learn more about Weltman’s Real Estate Default Solutions, feel free to connect with Cleveland Shareholder Ben Hoen at any time.
This blog is not a solicitation for business, and it is not intended to constitute legal advice on specific matters, create an attorney-client relationship, or be legally binding in any way.
