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American Enterprise Bank v. Garfield HTS Property, L.L.C.

Court of Appeals of Ohio, Eighth District

June 20, 2013

AMERICAN ENTERPRISE BANK PLAINTIFF-APPELLEE
v.
GARFIELD HTS. PROPERTY, L.L.C., ET AL. DEFENDANTS-APPELLANTS

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-771454

ATTORNEYS FOR APPELLANTS Michael R. Stavnicky T. Christopher O'Connell Matthew E. Parkins Singerman, Mills, Desberg & Kauntz.

ATTORNEYS FOR APPELLEE: For American Enterprise Bank Curtis L. Tuggle James J. Henderson Thompson Hine L.L.P. Lawrence T. Burick Jonathan S. Hawkins Thompson Hine L.L.P. Austin Landing I

For Champion Personnel System, Inc. Christopher M. Ernst Bricker & Eckler L.L.P.

For Cuyahoga County Treasurer Timothy J. McGinty Cuyahoga County Prosecutor, Michael A. Kenny, Jr. Assistant County Prosecutor The Justice Center.

For Ohio Dept. of Transportation Mike DeWine Ohio Attorney General, Fedele DeSantis Assistant Attorney General State Office Bldg.

For University Hospitals Mgt. Services Raymond Krncevic

For Mark S. Abood, Receiver Mark S. Abood, Pro se.

BEFORE: Jones, P.J., Keough, J., and Kilbane, J.

JOURNAL ENTRY AND OPINION

LARRY A. JONES, SR, PRESIDING JUDGE.

{¶ 1} Defendant-appellant, Garfield Heights Property, L.L.C. ("GHP"), appeals the trial court's decision to appoint a receiver. Finding no merit to the appeal, we affirm.

I. Pertinent Facts and Procedural History

{¶2} In 2011, plaintiff-appellee, American Enterprise Bank, filed a foreclosure complaint against GHP, alleging that GHP had defaulted on a $2.7 million note.[1] The bank's complaint further alleged the following. In May 2008, GHP executed and delivered to the bank a note in the amount of $2.7 million. Pursuant to the terms of the note, GHP agreed to repay the bank the principal amount plus 6.25% annual interest, unless GHP defaulted, in which case the bank had the right to raise the interest rate to 11.25%. The complaint alleged that GHP breached its obligations under the note by failing to make installment payments on the note. The bank accelerated the note and declared the entire balance of principal, interest, and other charges due and immediately payable.

{¶ 3} The bank alleged in its complaint that the note was secured by an open-end mortgage, granting the bank a mortgage interest in real property located in Garfield Heights. The mortgage was filed in the official records of Cuyahoga County in May 2008.

{¶ 4} The bank further alleged in the complaint that under the terms of the mortgage, GHP assigned to the bank all of the rents, revenues, issues, profits, proceeds, receipts, income, accounts, and other receivables arising out of or from the mortgaged property.

{ΒΆ 5} The bank stated in the complaint that some of the tenants of the property had or may claim an interest in the property through lease agreements and that any sale of the property ...


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