Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sutton Bank v. Progressive Polymers, LLC

Court of Appeals of Ohio, Eleventh District, Portage

August 12, 2019

SUTTON BANK, Plaintiff-Appellee,
v.
PROGRESSIVE POLYMERS, LLC, et al., Defendants-Appellants.

          Civil Appeals from the Portage County Court of Common Pleas. Case No. 2018 CV 00723.

         Judgment: Reversed and remanded.

          Michael D. Stultz and Christopher C. Camboni, Meyer & Kerschner, Ltd., (For Plaintiff-Appellee).

          Patrick J. Keating and Daniel J. Glass, Buckingham, Doolittle & Burroughs, LLC, (For Defendants-Appellants).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellants, Progressive Polymers, LLC and Darin A. Bay, appeal two judgments of the Portage County Court of Common Pleas, in favor of appellee, Sutton Bank, on a cognovit promissory note. We reverse and remand.

         {¶2} The facts leading up to the dispute between the parties are straightforward. On July 22, 2016, appellants signed a cognovit promissory note (the "Note") in favor of Sutton Bank for the principle amount of $500, 000.00. Appellants were to make monthly payments on the Note. The following sections of the Note are pertinent to the present dispute:

• Paragraph 1, the definitions section of the Note, states that "[t]he pronouns 'I,' 'me,' and 'my' refer to each Borrower signing this Note, individually and together * * * 'You' and 'Your' refer to the Lender * * *."
• Paragraph 29, the "waiver of jury trial" section, states: "All of the parties to this Note knowingly and intentionally, Irrevocably and unconditionally, waive any and all right to a trial by jury in any litigation arising out of or concerning this Note or any other Loan Documents or related obligation. All of these parties acknowledge that this section has either been brought to the attention of each party's legal counsel or that each party had the opportunity to do so."
• Between Paragraph 29 and Paragraph 30, the following is contained in a text box:
CONFESSION OF JUDGMENT. If I default, I authorize any attorney to appear in a court of record and confess judgment against me in favor of you. The confession of judgment may be without process and for any amount due on this Note including collection costs and reasonable attorneys' fees. This is in addition to other remedies.
• Paragraph 30, the following warning is printed in bold, capital letters:
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, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.

         {¶3} Appellants signed the Note right below the above warning contained in Paragraph 30. Sutton Bank did not sign the Note. Thereafter, in August 2018, appellants informed Sutton Bank they would no longer be able to make payments on the Note.

         {¶4} A complaint for confession of judgment on the Note was filed by Sutton Bank on September 13, 2018, and judgment was summarily entered in favor of Sutton Bank on September 17, 2018. Appellants appealed the judgment (Case No. 2018-P-0079) and also filed a motion to vacate.

         {¶5} While the appeal was pending, appellants filed a motion with this court to remand the matter for a ruling on the motion to vacate, which was granted. On remand, the trial court denied the motion to vacate, holding that appellants did not have a meritorious defense to Sutton Bank's claim under the Note. Appellants filed a second notice of appeal from the denied motion to vacate (Case No. 2019-P-0001), and the cases were consolidated.

         {¶6} Appellants' timely consolidated appeals before this court raise three assignments of error. For clarity and convenience, we combine the first and third assignments for review.

         {¶7} Appellants' first and third assignments of error state:

[1.] The Trial Court erred in granting cognovit judgment in favor of Appellee and against Appellant. Strictly construing the underlying promissory note, as is required of Ohio courts when interpreting cognovit provisions, the promissory note does not ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.