Court of Appeals of Ohio, Second District, Montgomery
U.S. BANK, N.A. Plaintiff-Appellee
COURTHOUSE CROSSING, ACQUISITIONS, LLC, et al. Defendants-Appellants
Appeal from Common Pleas Court Trial Court Case No.
P. BOTTI, and JARED M. KLAUS, TAMI H. KIRBY, Attorneys for
CHARLES PAWLUKIEWICZ, ROBERT KRACHT, NICHOLAS OLESKI,
Attorneys for Defendants-Appellants
1} Courthouse Crossing Acquisitions, LLC and Schon
C.C. Holding, LLC appeal from an order of the trial court
appointing a receiver in this multi-tenant commercial
property foreclosure action. Finding no error, we affirm.
2} In 2006, Courthouse and Schon (which we will
refer to collectively as Courthouse, unless otherwise noted)
borrowed $12.7 million from Deutsche Bank Mortgage Capital,
LLC. The promissory note matured on March 1, 2016, at which
time it became due and payable in full. Securing the
promissory note is an open-ended mortgage and an assignment
of leases and rents on the office and retail building at 10
North Ludlow Street in downtown Dayton. After a string of
assignments, U.S. Bank came to own and hold the note,
mortgage, and assignment of leases and rents.
3} The maturation date came, and Courthouse failed
to pay the roughly $11 million due on the promissory note. In
October 2016, U.S. Bank filed a foreclosure action against
Courthouse, seeking foreclosure of the mortgage and to
collect rents and other income. At the same time, U.S. Bank
moved for the appointment of a receiver, supporting its
motion with an affidavit from a manager at the loan's
special servicer. A hearing on the matter of a receiver was
scheduled for November 4.
4} The day before the hearing, Courthouse filed a
motion to dismiss under Civ.R. 12(B)(1), (4), and (5).
Courthouse argued that U.S. Bank was not the holder of the
note and mortgage when it filed the complaint, so it lacks
standing to bring this action. Courthouse also argued that
U.S. Bank did not have the capacity to sue in Ohio because it
failed to register as a business trust with the Ohio
Secretary of State. Courthouse also argued that U.S. Bank had
failed to serve Schon and quibbled with the method that it
used to serve Courthouse. Lastly, Courthouse argued generally
that service had not been perfected on Courthouse or Schon.
5} The hearing was held on the scheduled date.
Although neither Courthouse nor Schon had been formally
served with process, both parties were represented at the
hearing by counsel. Only arguments were presented at the
hearing-no additional evidence. The trial court sustained
U.S. Bank's motion for the appointment of a receiver and
appointed the receiver requested by the bank.
6} On November 8, 2016, Courthouse appealed from the
order appointing the receiver.
7} On January 9, 2017, the trial court overruled
Courthouse's motion to dismiss.
8} Courthouse assigns four errors to ...