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.

First National Bank of Shelby v. Robert L. Swank

October 19, 2011

FIRST NATIONAL BANK OF SHELBY PLAINTIFF-APPELLEE
v.
ROBERT L. SWANK, ET AL. DEFENDANTS-APPELLANTS



Appeal from the Court of Common Pleas, Case No. 04-CV-606D

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

Cite as First Natl. Bank of Shelby v. Swank,

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT:

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J.

OPINION

Affirmed

{¶1} This case has a long and tortuous legal history dating back to 1996. Freeman Swank Sr., now deceased, and his wife Rheabelle Swank (hereinafter "Swank Parents") are the parents of Freeman Swank, Jr. (hereinafter "Jr."), and appellants herein, Robert L. Swank and E. Clark Swank. The Swank Parents owned over 500 acres of farm land on which they conducted dairy and farming operations and raised cattle and hogs. Appellants worked on the family farm; Robert beginning in 1965 and Clark in 1968. They ceased working on the farm in 1995.

{¶2} Over time, the Swank Parents incurred considerable debt in operating their farm and defaulted on their first mortgage. On June 20, 1996, Jr. purchased the defaulted first mortgage and became the assignee.

{¶3} On June 8, 2004, appellee, First National Bank of Shelby, filed a complaint against several defendants, including several members of the Swank Family: appellants and appellees Jr., his wife Mary Jane Swank, the Estate of Freeman Swank, Sr., Rheabelle Swank, and Regal Eagle Enterprises, Inc. Appellee First National alleged that the Swank Parents defaulted on a promissory note dated July 6, 1988. Appellee First National sought foreclosure of a mortgage on a portion of the Swank Family farm used for collateral. Appellee First National also alleged that Jr. defaulted on a 1998 promissory note. The note was secured by the portion of the Swank Family farm that Jr. had purchased on June 20, 1996. Mary Jane joined in assigning the mortgage interest as security for the 1998 note.

{¶4} In 2009, a proposed agreed order of sale was entered into between appellee First National and Jr., Mary Jane, and Rheabelle. On November 16, 2009, appellants, having been dismissed on August 2, 2006, filed objections to the agreed order of sale. On November 17, 2010, appellants filed a motion to intervene as judgment lien creditors. On December 20, 2010, the agreed order of sale was filed followed by an order granting appellants the right to intervene. Appellants filed an answer and cross-claim on December 22, 2010.

{¶5} On January 19, 2011, appellants filed a Civ.R. 60(B) motion to vacate the agreed order of sale. Before a ruling was made, appellants filed their notice of appeal. This matter is now before this court for consideration. Assignments of error are as follows:

I

{¶6} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN DETERMINING VALIDITY AND ASSIGNING VALUES AND THE ORDER OF PRIORITIES OF LIENS IN ITS ORDER OF SALE (TO WHICH ONLY THE PLAINTIFF AND DEFENDANT DEBTORS AGREED) WITHOUT A TRIAL AND IN THE ABSENCE OF A MOTION OR OF A FINDING THAT NO GENUINE ISSUES OF MATERIAL FACT EXISTED."

II

{¶7} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT DEFENDANT FREEMAN SWANK, JR.'S PROMISSORY NOTE OF JULY 31, 1998, WAS SECURED BY AN ASSIGNED MORTGAGE INTEREST."

III

{¶8} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION TO THE EXTENT THE ORDER OF SALE PROVIDES THAT THE UNITED STATES OF AMERICA IS IN FOURTH PRIORITY POSITION WITH

RESPECT TO THE RESIDENCE AND DAIRY FARM PROPERTIES AS TO WHICH IT HAS NO LIEN AT ALL."

I, II

{¶9} These assignments of error challenge the validity of the agreed order of sale filed December 20, 2010. Appellants claim the order of sale is invalid, and it improperly assigned values and priorities. Appellants also challenge the validity of Jr.'s promissory note as secured by the assigned mortgage interest. We find a resolution of these issues centers on the procedural history and the agreed order of sale; therefore, the issues will be addressed collectively.

{¶10} In the original complaint filed June 8, 2004, appellants were named as party defendants by virtue of their pending civil actions:

{ΒΆ11} "15. The following Defendants also claim the following liens or interests in said premises and should have notice of the within proceedings and should be required to explain to ...


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.