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Park View Federal Savings Bank v. Village Builders Ltd.

Court of Appeals of Ohio, Eighth District

July 11, 2013

PARK VIEW FEDERAL SAVINGS BANK PLAINTIFF-APPELLEE
v.
VILLAGE BUILDERS LTD., ET AL. DEFENDANTS-APPELLANTS

Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-771339, CV-771341, CV-771343

ATTORNEY FOR APPELLANTS Daniel F. Lindner The Lindner Law Firm, L.L.C.

ATTORNEYS FOR APPELLEE Alan B. Dailide Meyers, Roman, Friedberg & Lewis, Scott N. Opincar Richard W. Cline McDonald Hopkins, L.L.C., Michael R. Blumenthal Waxman Blumenthal, L.L.C.

BEFORE: Blackmon, J., Celebrezze, P.J., and McCormack, J.

JOURNAL ENTRY AND OPINION

PATRICIA ANN BLACKMON, J.

{¶ 1} In this consolidated appeal, appellants Village Builders Ltd., et al. ("Village Builders") appeal the trial court's decision that denied their motion for relief from cognovit judgments entered in favor of appellee Park View Federal Savings Bank ("Park View Federal"). Village Builders assigns the following errors for our review:

I. The trial court erred by awarding the appellee's cognovit judgments when the cognovit warrants did not strictly adhere to the mandates of R.C. 2323.13.
II. The trial court erred by denying appellants' motions to vacate the cognovit judgments, because the judgments were void ab initio due to the court's lack of subject matter jurisdiction. No Civ.R. 60(B) analysis needs to be performed.

{¶ 2} Having reviewed the record and pertinent law, we affirm the trial court's decision. The apposite facts follow.

{¶ 3} On May 10, 1999, Village Builders executed and delivered to Park View Federal a promissory note in the principal amount of $558, 750. Over the years, the note was modified and extended in writing by agreement of the parties. The most recent modification was executed on January 20, 2010, and extended the maturity to January 10, 2011.

{¶ 4} Also, on May 10, 1999, Village Builders executed and delivered to Park View Federal a second promissory note in the principal amount $750, 000. On February 23, 2006, Village Builders executed and delivered to Park View Federal a third promissory note in the amount of $150, 000. Over the years, the second and third notes were combined, modified, and extended in writing by the parties. The most recent extension of the combined second and third promissory notes was executed on December 9, 2009, and extended the maturity date to November 10, 2010.

{¶ 5} On May 24, 2004, Village Builders executed and delivered to Park View Federal a fourth promissory note in the principal amount of $475, 000. Over the years, this note was also modified and extended in writing by the parties. The most recent extension was executed on August 25, 2008, and extended the maturity date to May 24, 2010.

{¶ 6} On December 14, 2011, Park View Federal filed three separate complaints for cognovit judgments on the four promissory notes and the related modification agreements. In the complaints, Park View Federal alleged, among other things, that Village Builders was in default under the terms of the notes and modifications, because of the failure to make payment as required. Specifically, Park View Federal alleged that the notes contained warrants authorizing confession of judgments. Attached to each complaint was exhibit "A, " a copy of the cognovit notes. The following appeared directly above the signatures of Village Builders' corporate representatives, who executed same in their corporate and individual capacities:

Warning — By signing this paper you give up your right to notice and court trial. If you do not pay on time a court judgment may be taken against you without your prior knowledge and the powers of a court can be used to collect from you regardless of any claims you may have against the creditor whether for returned goods, ...

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