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Fifth Third Bank v. Pezzo Construction

September 30, 2011

FIFTH THIRD BANK, PLAINTIFF-APPELLEE,
v.
PEZZO CONSTRUCTION, INC. ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 10CVH-06-9345)

The opinion of the court was delivered by: Tyack, J.

Cite as Fifth Third Bank v. Pezzo Constr., Inc.,

(REGULAR CALENDAR)

DECISION

{¶1} Defendants-appellants are appealing the decision of the Franklin County Court of Common Pleas denying defendants' motion for relief from judgment. For the following reasons, we affirm the decision of the trial court.

{¶2} Defendants, Pezzo Construction, Inc., TGA One, LLC, Onofrio Pezzo, and Joanne Pezzo, collectively ("defendants") assert the following assignments of error:

[I.] The lower court erred in falling to vacate a cognovit judgment which was void ab initio due to plaintiff's failure to provide required documents which were a condition precedent to taking a cognovit judgment.

[II.] The lower court erred in failing to vacate the cognovit judgment when the [defendants] had meritorious defenses to the cognovit judgment.

[III.] The lower court erred in failing to vacate the cognovit judgment when plaintiff never provided written notice of default on four of the notes upon which it took the cognovit judgment.

[IV.] The lower court erred in failing to vacate the cognovit judgment when plaintiff was precluded from utilizing the tax and indebtedness ratio covenants as grounds for declaring a default.

[V.] The lower court erred in failing to vacate the cognovit judgment when plaintiff breached the covenant of good faith.

[VI.] The lower court erred in failing to vacate the cognovit judgment when judgment was taken against Mr. Pezzo and Mrs. Pezzo on guarantees that had been superseded and were no longer valid.

{¶3} The subject of this case is various promissory notes executed and delivered by defendant, Pezzo Construction, Inc., to plaintiff-appellee, Fifth Third Bank ("Fifth Third"). Pezzo Construction transferred to TGA One, LLC, certain property with TGA becoming liable on the notes and mortgages pertaining to the properties. Mr. Onofrio Pezzo and Mrs. Joanne Pezzo are the owners of TGA One, LLC, and the principals of Pezzo Construction.

{ΒΆ4} Fifth Third on or about April 9, 2010, issued a "Notice of Default" to all defendants. The default was based on defendants' failure to fulfill two covenants that are similarly found in each note. The first, was a covenant regarding tax obligations, and provides in pertinent part: "Borrower shall pay when due all taxes." The second, was a financial covenant ...


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