Court of Appeals of Ohio, Eleventh District, Geauga
CHRISTOPHER P. HITCHCOCK TREASURER OF GEAUGA COUNTY, OHIO, Plaintiff,
SHERMAN F. DENISON, et al., Defendants-Appellants, SYLVIA B. IMARS, Defendant-Appellee.
Appeal from the Geauga County Court of Common Pleas, Case No.
15 F 000113.
L Waterhouse, Jr., Nicola, Gudbranson & Cooper, LLC, (For
E. Barrett and James P. Reddy, Jr., (For Defendant-Appellee).
V. GRENDELL, J.
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.
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
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
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
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.
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.
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."
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.
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.
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 ...