Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Santora v. Kiss

December 4, 2008

MARIO SANTORA, TRUSTEE PLAINTIFF-APPELLEE
v.
JOHN S. KISS, ET AL. DEFENDANTS-APPELLANTS



Civil Appeal from the Cuyahoga County Common Pleas Court, Case No. CV-580158. JUDGMENT: AFFIRMED.

The opinion of the court was delivered by: Anthony O. Calabrese, Jr., J.

JOURNAL ENTRY AND OPINION

BEFORE: Calabrese, J., Sweeney, A.J., and McMonagle, J.

{¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of counsel.

{¶2} Defendant Andrew Kiss (Kiss) appeals the court's denying his motion for relief from judgment and motion to stay judgment regarding a decision on a cognovit note rendered against him and for plaintiff Mario Santora (Santora). After reviewing the facts of the case and pertinent law, we affirm.

I.

{¶3} In May 1998, Santora sold a junkyard located at 2300 Fulton Road, Cleveland, Ohio, to John and Michelle Spofford (the Spoffords). On August 4, 2003, Santora assigned the mortgage on this property to Kiss for $60,000 plus a $145,000 cognovit note. Subsequently, the Spoffords defaulted on the mortgage and Kiss defaulted on the cognovit note. On December 21, 2005, the court entered a judgment for Santora in the amount of $117,084.54 plus interest, per the balance due on the cognovit note.

{¶4} On October 1, 2007, Kiss sent a letter to Santora regarding a "Notice of Dishonor" pursuant to R.C. 1303.63, demanding $205,000, which represented the monies paid and due on the note. On December 10, 2007, Kiss filed a motion to stay execution of judgment, and on December 13, 2007, Kiss filed a motion for relief from judgment. On March 21, 2008, the court denied both of Kiss's motions.

II.

{¶5} In his first assignment of error, Kiss argues that "the trial court erred in denying the appellant's motion for relief from judgment." Kiss's second assignment of error states that "the trial court erred in denying the appellant's motion to stay judgment." Specifically, Kiss argues that by serving the notice of dishonor on Santora, the judgment on the cognovit note was satisfied pursuant to Civ.R. 60(B)(4).

{¶6} To prevail on a Civ.R. 60(B) motion, the movant must demonstrate that

1) he has a meritorious defense or claim to present if relief is granted; 2) he is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and 3) the motion is made within a reasonable amount of time. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146. We review a trial court's decision on a motion for relief from judgment under an abuse of discretion standard. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17. "Where the judgment sought to be vacated is a cognovit judgment, however, the party need only establish a meritorious defense in a timely fashion.*** By definition, cognovit notes 'cut off every defense, except payment, which the maker of the note may have against enforcement of the note.'" Mervis v. Rothstein, Cuyahoga App. No. 86090, 2005-Ohio-6381 (internal citations omitted).

{¶7} In the instant case, Kiss asserts that his meritorious defense is as follows: "Since this note was a negotiable instrument pursuant to Article 3 of the U.C.C., when Mr. Kiss tendered the Note via his Notice of Dishonor on October 1, 2007, the Appellee Santora was bound by the U.C.C. to accept same and return the consideration paid by Mr. Kiss." Kiss points to no case law to support this argument.

{ΒΆ8} Kiss does, however, refer to R.C. 1303 et seq., which governs negotiable instruments, to support his position. First, he states that he is a "holder in due course" pursuant to R.C. 1303.32; second, he states that Santora is an "indorser" pursuant to R.C. 1303.24; third, he states that liability under negotiable instruments arises under R.C. 1303.55; and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.