[Cite as Huntington Natl. Bank v. Clark, 2014-Ohio-2855.]


STATE OF OHIO                    )                          IN THE COURT OF APPEALS
                                 )ss:                       NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

HUNTINGTON NATIONAL BANK                                    C.A. No.   26950

        Appellee

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
MELVIN CLARK, et al.                                        COURT OF COMMON PLEAS
                                                            COUNTY OF SUMMIT, OHIO
        Appellant                                           CASE No.   CV2011-10-5825

                                DECISION AND JOURNAL ENTRY

Dated: June 30, 2014



        MOORE, Presiding Judge.

        {¶1}    Defendant-Appellant, Melvin H. Clark, appeals from the May 1, 2013 judgment

entry of the Summit County Court of Common Pleas. We reverse.

                                                     I.

        {¶2}    On October 14, 2011, Plaintiff-Appellee, Huntington National Bank, filed a

complaint against Mr. Clark, and other named defendants, to foreclose on the commercial

property known as 767 Turkeyfoot Lake Road, Akron, Ohio 44319 (“767 Turkeyfoot”). In its

foreclosure complaint, Huntington National Bank alleged that, in Case No. CV2009-04-2807, the

Summit County Court of Common Pleas entered a cognovit judgment in the amount of

$1,312,135.90 against Mr. Clark on a commercial guaranty. Based upon that judgment,

Huntington National Bank perfected a first priority lien on Mr. Clark’s interest in 767

Turkeyfoot.
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       {¶3}    Mr. Clark filed an answer, and the matter was referred to mediation. However,

the record indicates that it was unable to be resolved through mediation, and Huntington

National   Bank     filed   a   motion     for   summary    judgment.       Mr.    Clark   filed    a

memorandum/supplemental memorandum in opposition to summary judgment, and Huntington

National Bank filed a reply brief.       The trial court granted summary judgment in favor of

Huntington National Bank, and issued a decree of foreclosure.

       {¶4}    In response, Mr. Clark filed a Civ. R. 60(B)(5) motion for relief from judgment,

along with a supporting affidavit.       In his affidavit, Mr. Clark attested that (1) a cognovit

judgment was taken against him in April of 2009, (2) the cognovit judgment formed the basis for

the foreclosure action, and (3) the cognovit judgment was not valid.

       {¶5}    The trial court denied Mr. Clark’s Civ.R. 60(B) motion, thus upholding the

foreclosure.

       {¶6}    Mr. Clark appealed, raising two assignments of error for our consideration. In

order to facilitate our discussion, we will first address Mr. Clark’s second assignment of error.

                                                 II.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED WHEN IT FAILED TO CONCLUDE THAT THE
       COGNOVIT JUDGMENT ENTERED BY THE SUMMIT COUNTY COURT
       OF COMMON PLEAS ON APRIL 9, 2009 IS VOID AB INITIO DUE TO
       HUNTINGTON[] [NATIONAL BANK’S] FAILURE TO FOLLOW THE
       JURISDICTIONAL REQUIREMENTS FOR A VALID COGNOVIT
       JUDGMENT AT [R.C. 2323.12] AND 2323.13[.]

       {¶7}    In Huntington Natl. Bank v. Clark, 9th Dist. Summit No. 26883, 2014-Ohio-

2629, ¶ 18 (“Clark I”), this Court determined that the trial court did not have subject matter

jurisdiction to grant cognovit judgment against Mr. Clark because “there is no evidence in the

record that Huntington National Bank strictly complied with R.C. 2323.13(A) by producing the
                                                   3


original warrants of attorney at the time it confessed judgment[.]” As such, the underlying

Judgment Lien in Case No. CV2009-04-2807, which forms the basis for this foreclosure action,

is not valid and Huntington National Bank lacks standing to foreclose Mr. Clark’s property

interest in 767 Turkeyfoot. See generally Federal Home Loan Mtge. Corp. v. Schwartzwald, 134

Ohio St.3d 13, 2012-Ohio-5017.

        {¶8}    Therefore, based upon our decision in Clark I, we reverse and remand this matter

for the trial court to dismiss the foreclosure action.

        {¶9}    Accordingly, Mr. Clark’s second assignment of error is sustained.

                                  ASSIGNMENT OF ERROR I

        THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO APPLY
        THE CORRECT STANDARD OF REVIEW FOR A [CIVIL] RULE 60(B)(5)
        REQUEST FOR RELIEF FROM A COGNOVIT JUDGMENT[.]

        {¶10} Based upon our resolution of Mr. Clark’s second assignment of error, his first

assignment of error is moot and we decline to address it.

                                                  III.

        {¶11} In sustaining Mr. Clark’s second assignment of error, and deeming his first

assignment of error moot, the judgment of the Summit County Court of Common Pleas is

reversed and this cause remanded for further proceedings consistent with this decision.

                                                                             Judgment reversed,
                                                                            and cause remanded.




        There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CARLA MOORE
                                                     FOR THE COURT



WHITMORE, J.
HENSAL, J.
CONCUR.


APPEARANCES:

TODD PORTUNE, Attorney at Law, for Appellant.

STEVE SHANDOR, Attorney at Law, for Appellee.
