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Christopher P. Hitchcock Treasurer of Geauga County v. Denison

Court of Appeals of Ohio, Eleventh District, Geauga

December 29, 2017

CHRISTOPHER P. HITCHCOCK TREASURER OF GEAUGA COUNTY, OHIO, Plaintiff,
v.
SHERMAN F. DENISON, et al., Defendants-Appellants, SYLVIA B. IMARS, Defendant-Appellee.

         Civil Appeal from the Geauga County Court of Common Pleas, Case No. 15 F 000113.

          Bruce L Waterhouse, Jr., Nicola, Gudbranson & Cooper, LLC, (For Defendants-Appellants).

          Joyce E. Barrett and James P. Reddy, Jr., (For Defendant-Appellee).

          OPINION

          DIANE V. GRENDELL, J.

         {¶1} Defendants-appellants appeal the judgment of the Geauga County Court of Common Pleas, holding that they are barred from raising the statute of limitations defense against defendant-appellee. The issue before this court is whether, when the original mortgagor has been found to have waived the statute of limitations against a senior lienholder in a foreclosure action, subordinate lienholders are bound by that waiver and barred from raising the defense against the senior lienholder. For the following reasons, the judgment of the lower court is reversed and this matter is remanded for further proceedings consistent with this opinion.

         {¶2} On February 9, 2015, Christopher P. Hitchcock, Treasurer for Geauga County, Ohio, filed a Complaint in Foreclosure against Charles J. Imars and others, including appellee, Sylvia B. Imars, and appellants, Sherman F. Denison, E. Bruce Dunn, and Rebecca Dunn. Hitchcock sought the foreclosure of property owned by Charles Imars at 14656 South Cheshire Street, in Burton, for "due and unpaid taxes, assessments, interest and penalties."

         {¶3} On March 10, 2015, Sylvia Imars filed an Answer and Cross-Claim against Charles Imars. Sylvia alleged that she and Charles were divorced on March 6, 1996, and that he executed a promissory note to her in the amount of $20, 000, secured by a mortgage on the property located at 14656 South Cheshire Street. According to the note, "both principal and interest were due and payable thirty-six (36) months from December 5, 1996 or upon the earlier sale of the real property."

         {¶4} On April 16, 2015, Denison and the Dunns filed an Answer, Crossclaims and Counterclaim. They asserted that they "have a security interest in and lien against the real property and premises * * * pursuant to two Cognovit Demand Promissory Notes, " executed on January 1, 2009, in the amount of $290, 702.83 to Denison and $182, 370.19 to the Dunns.

         {¶5} On April 24, 2015, Charles Imars filed a Reply to Cross-Claim of Sylvia B. Imars, raising the affirmative defense of the statute of limitations.

         {¶6} On September 21, 2015, Charles Imars and the Treasurer for Geauga County stipulated to judgment in favor of the Treasurer in the amount of $41, 494.42.

         {¶7} On February 29, 2016, Denison and the Dunns filed a Motion for Partial Summary Judgment, asserting that the Cross-Claim of Sylvia Imars "is time-barred by the statute of limitations set forth in R.C. 1303.16."

         {¶8} On April 19, 2016, the trial court entered judgment in favor of Denison in the amount of $496, 657.03, and in favor of the Dunns in the amount of $309, 694.68.

         {¶9} On September 30, 2016, a hearing was held on the issue of lien priorities and whether Sylvia Imars' note was subject to the statute of limitations defense.

         {¶10} On December 30, 2016, the trial court ordered the foreclosure of the subject premises. With respect to Sylvia Imars' claim, the court ruled as follows:

Mrs. Imars' Note provides, by its express terms, that the principal and interest is due and payable thirty-six (36) months from the date of the Note or upon sale of the subject property, whichever occurs first. Therefore, the latest that Mrs. Imars' Note would have been due and payable was December 5, 1999.
Absent an applicable defense to or exemption from its application, a claim to enforce Mrs. Imars' Note would be subject to the six-year statute of ...

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