The jurisdictional priority rule gives exclusive authority to the court that first exercises jurisdiction over parallel cases. The rule is common in many states, although its application varies. In some jurisdictions, priority is based on the first successful service of process, such as in Ohio (the subject of this article), California, and Florida, while others—like Missouri and the federal courts—prioritize the filing date. Kacyon v. Moore, 2025 Ohio-5030, confirms the rule in Ohio while underscoring a critical risk for creditors: under the jurisdictional priority rule, creditors who drag their feet may find themselves in probate court attempting to recover on their lien through a land sale proceeding.
This is rarely a favorable forum for a lienholder. In Kacyon, a mortgagee filed a foreclosure action in common pleas court before a probate land sale action was filed. However, because service was completed first in probate court, the probate court obtained exclusive jurisdiction over the property, forcing the foreclosure action to yield.
Key Facts From Kacyon:
- The property owner died on December 1, 2024.
- The mortgagee filed a foreclosure action on January 27, 2025, unaware of the death.
- The decedent’s estate was opened on February 28, 2025.
- A probate land sale action was filed on March 28, 2025.
All parties were served in the probate case by April 8, 2025, before service was completed in the common pleas case. The Court of Appeals held that because service was completed first in probate court, that court had exclusive authority over the property under the jurisdictional priority rule. Why This Matters to Attorneys for Creditors and Mortgagees Attorneys who prosecute foreclosure actions in Ohio courts of general jurisdiction (“common pleas” courts) know that attorney fees are generally not recoverable in those actions. In probate court, however, ORC 2127.38 provides that costs of sale—including reasonable attorney fees and fiduciary fees—are paid before mortgages and judgment liens in probate court land sale actions.
It is common across jurisdictions for probate and estate laws to prioritize the payment of administrative costs, including attorney fees. Probate courts have broad discretion to approve such fees, which are reviewed only for abuse of discretion. Courts have repeatedly held that these fees take priority over secured claims. To be clear, only attorney fees incurred by counsel for the fiduciary receive this priority—not the attorney fees of lienholders. This probate court discretion, combined with the statutory priority given to attorney and fiduciary fees, can incentivize estate attorneys to incur substantial fees, knowing they will be paid before secured creditors.
For example, in Gehlmann v. Gehlmann, 2014-Ohio-4990, the court emphasized that attorney fees connected to land sale proceedings are prioritized over liens and that the probate court has exclusive authority to fix those fees. Although some county probate courts have fee guidelines by local rule, Ohio does not impose statutory minimum or maximum limits on attorney fees in probate court land sale actions. To make matters worse for lienholders, properties which end up in land sale proceedings are often neglected and relatively low value. Kacyon v. Moore illustrates how the jurisdictional priority rule, when combined with ORC 2127.38, creates meaningful risk for creditors.
A probate land sale action that completes service first can:
- Strip your preferred foreclosure court of its jurisdiction;
- Force creditors into probate court;
- Allow attorney and fiduciary fees to take priority over secured liens and, where applicable, lienholder attorney fees; and
- Incentivize aggressive fiduciary and attorney fee accumulation in probate land sale actions.
In my experience, this is occurring with increased frequency and cost in probate court land sale proceedings. Making matters worse for lienholders, these properties are often less well-maintained and may have lower value compared to other properties, meaning fewer dollars to go around at the conclusion of the proceeding.
Takeaway
The takeaway for attorneys representing creditors and mortgagees is straightforward: if your case could become the subject of a parallel land sale proceeding, the race is on. Time is of the essence, and speed of service—or filing, depending on the state—can determine who controls the case and who gets paid.
