[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
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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.
Huntington Natl. Bank v. Clark
Combined Opinion