Huntington Natl. Bank v. Haas , 2019 Ohio 2556 ( 2019 )

[Cite as Huntington Natl. Bank v. Haas, 2019-Ohio-2556.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
HUNTINGTON NATIONAL BANK : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2018CA00182
CONNIE HAAS, ET AL :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2011CV00841
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 25, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STEVE SHANDOR THOMAS SKIDMORE
200 Market Avenue, North One Cascade Plaza, 12th Floor
Suite 300 PNC Center Building
Canton, OH 44702 Akron, OH 44308
[Cite as Huntington Natl. Bank v. Haas, 2019-Ohio-2556.]
Gwin, P.J.
{¶1} Appellant appeals the November 28, 2018 judgment entry of the Stark
County Court of Common Pleas granting appellee’s motion to revive judgment.
Facts & Procedural History
{¶2} On March 16, 2011, the trial court entered judgment in favor of appellee
Huntington National Bank against appellant Connie Haas for $1,129,071.92, including
interest through February 25, 2011, plus interest thereafter at $198.61920 per diem, until
satisfied. The trial court entered the judgment on a promissory note and a commercial
guaranty which appellant executed.
{¶3} Appellee filed a motion to revive the March 16, 2011 judgment on
September 7, 2018. Appellee sought to revive the judgment pursuant to R.C. 2325.15.
Appellant was served with the motion to revive by certified mail on September 14, 2018.
Appellant filed a response in opposition to the motion to revive on November 13, 2018.
Appellee filed a reply on November 14, 2018.
{¶4} The trial court held a hearing on appellee’s motion on November 20, 2018.
Sterling Morris (“Morris”), the director of special assets at Huntington Bank, testified he
manages the recovery department and his job duties include collection efforts after
judgment. Morris reviewed and maintained the bank records with regard to the loan at
issue in this case. Morris testified to Exhibit 1, the payoff amount for appellant, as
guarantor, and to Exhibit 2, the commercial loan guaranty showing the borrower as
Richard Henry Haas Enterprises, LLC, with the guarantor being appellant. Morris testified
the commercial loan payoff document was created August 24, 2018, and shows a total
amount due of $1,291,991.39. Morris stated that, since the time the payoff document
Stark County, Case No. 2018CA00182 3
was created on August 24, 2018, the bank has not received any payments towards the
balance; thus, the balance remains the same, plus the applicable interest.
{¶5} On cross-examination, Morris testified the amount of the original loan was
$1,530,000.00. Morris confirmed the balance as of August 24, 2018 was $1,291,991.39
and testified there have not been any payments made towards that loan since then.
Morris testified it is his understanding that the bank could release a mortgage without
releasing the note that goes with that mortgage. Morris stated it is not necessarily true
that with a satisfaction of mortgage the bank is indicating the note has been paid. Morris
testified the bank has a choice between executing a release of mortgage and a
satisfaction of mortgage. When asked with a satisfaction of mortgage is the bank
indicating it has been paid, Morris stated, “No * * * that is not my interpretation.” As to
Exhibit I, a certificate of satisfaction dated May 10, 2013, Morris testified the document
states it releases the mortgage. Morris does not know why this was filed in 2013. As to
the affidavit dated April 9, 2014, Morris stated he is not aware of the affidavit. Morris
testified the payoff amount he provided is the amount due and there is no record of
payments coming in to pay down that balance. Morris does not know why there was an
affidavit filed in April of 2014 stating the amount due was $32,545.52. Morris was not
sure how the principal balance due was originally calculated. As to Exhibit G, a
satisfaction of mortgage dated August of 2010, Morris stated it is a document executed
and signed by Huntington National Bank. Morris is not aware of any indications
Huntington gave appellant that she would not be obligated under the note and/or
mortgage once the property was auctioned.
Stark County, Case No. 2018CA00182 4
{¶6} On re-direct, Morris testified neither Exhibit G nor Exhibit H states the
underlying notes have been fully paid and released and that, in his experience as a bank
officer, it is possible to release and/or satisfy a mortgage without the underlying note being
discharged. As to Exhibit I, Morris stated the document says “released,” not “fully paid”
and there is no indication that the underlying note was fully paid. Upon Morris’ review of
the bank records in question, it is his opinion that the payoff submitted as Exhibit 1 is the
valid amount due and owing at this time from appellant.
{¶7} Counsel for appellee objected to the introduction and questioning regarding
releases that were signed or recorded prior to the judgment. The trial court permitted the
evidence to come in.
{¶8} The trial court issued a judgment entry granting appellee’s motion to revive
judgment on November 28, 2018. The trial court noted that appellant contends the
judgment should not be revived due to the filing of three separate documents: (1) a
satisfaction of mortgage of a $100,000 mortgage filed in Summit County on August 5,
2010; (2) a satisfaction of mortgage of a $1,530,000 mortgage and accompanying
assignment of rents filed in Summit County on August 5, 2010; and (3) a certificate of
satisfaction releasing a mortgage filed in Summit Count on May 10, 2013. The trial court
stated appellee presented testimony that the underlying judgment is not satisfied and
introduced into evidence the current commercial loan payoff amount. The trial court also
stated appellee argues only the mortgage, not the underlying debt, was released in the
documents referenced by appellant.
{¶9} The trial court found that to prevent revivor, the judgment debtor must show
that the judgment has been paid, settled, or barred by the statute of limitations. The trial
Stark County, Case No. 2018CA00182 5
court further found that the judgment debtor is limited to evidence that accrues following
the judgment, as the judgment debtor cannot challenge the original judgment in
opposition to a motion to revive because the original issues cannot be relitigated.
{¶10} The trial court found appellant’s reliance on the two satisfactions of
mortgage in 2010 inapposite because the court may consider only matters occurring after
the entry of the March 16, 2011 judgment to bar revivor. Further, that to consider any
documents created prior to the entry of judgment would be to allow an impermissible
collateral attack on the judgment. The trial court found the certificate of satisfaction dated
May 10, 2013, provides only that the $1,530,000 mortgage is released and the certificate
does not provide the mortgage was paid in full. The trial court additionally noted that a
promissory note and mortgage are two totally separate instruments.
{¶11} The trial court concluded appellee presented testimony that the judgment
was unsatisfied and there was no evidence the promissory note and commercial guaranty
were paid. Thus, the trial court ordered the judgment revived.
{¶12} Appellant appeals the November 28, 2018 judgment entry of the Stark
County Common Pleas Court and assigns the following as error:
{¶13} “I. THE LOWER COURT ERRED AS A MATTER OF LAW WHEN IT
SPECIFICALLY EXCLUDED EVIDENCE OF RECORDED DOCUMENTS FILED BY
DEFENDANT-APPELLANT HUNTINGTON EVIDENCING FULL SATISFACTION OF
BOTH MORTGAGES UPON WHICH THE ORIGINAL JUDGMENT WAS TAKEN AND
GRANTING ITS MOTION TO REVIVE JUDGMENT.
{¶14} “II. THE LOWER COURT ERRED AS A MATTER OF LAW WHEN IT
REVIVED THE ORIGINAL JUDGMENT WITHOUT PROPER EVIDENCE AND
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HUNTINGTON FAILED TO PROVIDE ACCURATE PROOF OF THE CLAIMED
AMOUNT DUE.”
I.
{¶15} In her first assignment of error, appellant argues the trial court committed
error when it excluded evidence of recorded documents filed by appellant evincing full
satisfaction of both mortgages upon which the original judgment was taken. Appellant
contends appellee clearly filed certificates of satisfaction with respect to both mortgages
and this satisfaction is a complete defense to the motion to revive and thus appellee
wrongfully filed and obtained a judgment against appellant on a cognovit note associated
with the mortgages which it had filed satisfactions for.
{¶16} A motion to revive can be defeated only if the judgment debtor shows the
judgment has been paid or settled, or is barred by the statute of limitations. Thompson
v. Bayer, 5th Dist. Fairfield No. 2011-CA-00007, 2011-Ohio-5897; Mansfield Truck Sales
& Service, Inc. v. Fortney, 5th Dist. Ashland No. 2008-COA-040, 2009-Ohio-2686.
Appellant argues Exhibits G and H establish that she fully paid the debt. Exhibit G is a
satisfaction of mortgage document filed in Summit County on August 5, 2010 with regards
to a $100,000 mortgage and Exhibit H is a satisfaction of mortgage document filed in
Summit County on August 5, 2010 with regards to a $1,530,000 mortgage. The trial court
admitted Exhibits G and H at the hearing, but found in its judgment entry appellant’s
reliance on Exhibit G and H inapposite because to consider these documents would allow
an impermissible collateral attack on the 2011 judgment. We agree with the trial court.
{¶17} A challenge to the validity of the judgment cannot be asserted in a revivor
proceeding. Thompson v. Bayer, 5th Dist. Fairfield No. 2011-CA-00007, 2011-Ohio-
Stark County, Case No. 2018CA00182 7
5897. The correct procedure to raise an alleged error in the judgment is with a motion to
vacate or a direct appeal of the judgment. Id. This is because a proceeding to revive a
judgment is not a new action, but is merely a motion in the original action. Columbus
Division of Income Tax v. Abdulshafi, 10th Dist. Franklin No. 09AP-903, 2010-Ohio-3021;
State v. Jones, 12th Dist. Warren No. CA2000-020-15, 2000 WL 153701. “If at the time
it entered the original judgment, a court had subject matter jurisdiction and personal
jurisdiction, any defense which could have been raised in the original action is waived
and cannot be asserted in a revivor proceeding.” Mansfield Truck Sales & Service, Inc.
v. Fortney, 5th Dist. Ashland No. 2008-COA-040, 2009-Ohio-2686; Heselden Pluming
Co. v. Justice, 10th Dist. Franklin No. 85AP-733, 1986 WL 3213 (March 13, 1986) (holding
the causes sufficient to bar a revivor of a judgment are those causes which occurred after
the judgment was rendered); Omni Credit Services v. Leston, 2nd Dist. Montgomery No.
25287, 2013-Ohio-304.
{¶18} Appellant’s reliance on Exhibits G and H, both documents dated
approximately seven months prior to the March 16, 2011 judgment, is an attempt to
introduce evidence of defenses potentially available to her in the original action and is
thus an impermissible collateral attack on the original judgment. Appellant did not appeal
or otherwise directly attack the March 16, 2011 judgment. As such, she is precluded from
collaterally attacking the validity of the judgment in defending against the motion to revive.
{¶19} Appellant additionally contends she can collaterally attack the original
judgment because a judgment that is void can be attacked at any time. Ohio law provides
that a void judgment is one that has been imposed by a court that lacks subject-matter
jurisdiction over the case or the authority to act, whereas a voidable judgment is one
Stark County, Case No. 2018CA00182 8
rendered by a court that has both jurisdiction and authority to act, but the court’s judgment
is invalid, irregular, or erroneous. State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238,
942 N.E.2d 332. The authority to vacate a void judgment is not derived from Civil Rule
60(B), but “rather constitutes an inherent power possessed by Ohio courts.” Patton v.
Diemeri, 35 Ohio St. 3d 68, 518 N.E.2d 941 (1988). A judgment by a court lacking
jurisdiction is void, and thus subject to collateral attack at any time. State v. Payne, 114
Ohio St. 3d 502, 2007–Ohio–4642, 873 N.E.2d 306. Appellant provides no evidence that
the trial court lacked jurisdiction or the authority to enter the judgment on March 16, 2011.
Accordingly, appellant cannot collaterally attack the March 16, 2011 judgment by using
the certificates of satisfaction of mortgage that pre-date the March 16, 2011 judgment.
{¶20} Finally, as noted by the trial court, a promissory note and mortgage are two
separate instruments. While Exhibits G and H state the mortgages were paid, satisfied,
and discharged, they do not state that the accompanying notes were fully paid, satisfied,
or discharged. A promissory note and a mortgage are two separate instruments. Bank
One, Dover, N.A. v. J.A.M. Transportation Services, 5th Dist. Tuscarawas No.
96AP040040, 1997 WL 115673 (March 6, 1997). Morris testified it is his understanding
that the bank could release a mortgage without releasing the note that goes with the
mortgage and the filing of a satisfaction of mortgage does not necessarily indicate the
note has been paid. Further, Morris stated that neither Exhibit G nor Exhibit H state the
underlying notes had been fully paid and/or released. Appellant did not introduce any
evidence to dispute Morris’ testimony.
{¶21} Appellant’s first assignment of error is overruled.
Stark County, Case No. 2018CA00182 9
II.
{¶22} In her second assignment of error, appellant contends the lower court
committed error when it revived the judgment without proper evidence and that appellee
failed to provide accurate proof of the claimed amount due.
{¶23} R.C. 2325.15 addresses the procedures set forth for reviving dormant
judgments and provides as follows:
When a judgment, including judgments rendered by a judge of a
county court or mayor, a transcript of which has been filed in the court of
common pleas for execution, is dormant, or when a finding for money in
equitable proceedings remains unpaid in whole or in part, under the order
of the court therein made, such judgment may be revived, or such finding
made subject to execution as judgments at law are, in the manner
prescribed for reviving actions before judgment, or by action in the court in
which such judgment was rendered or finding made, or in which transcript
of judgment was filed.
{¶24} R.C. 23215.17 addresses when a judgment can be considered revived and
the time frame in which a lien attaches to a judgment debtor’s property once a dormant
judgment is revived and states:
If sufficient cause is not shown to the contrary, the judgment or
finding mentioned in section 2325.15 of the Revised Code shall stand
revived, and thereafter may be made to operate as a lien upon the lands
the tenements of each judgment debtor for the amount which the court finds
Stark County, Case No. 2018CA00182 10
to be due and unsatisfied thereon to the same extent and in the same
manner as judgments or findings rendered in any other action.
{¶25} As reasoned by the Tenth District, R.C. 2325.15 and/or R.C. 2325.17, “do
not require the judgment creditor to provide proof, at the time of the revivor, regarding the
amount due and unsatisfied on the original judgment” and do not require the trial court to
make a finding as to the amount still due and owing on the original judgment. Columbus
Check Cashers, Inc. v. Cary, 196 Ohio App. 3d 132, 2011-Ohio-1091, 962 N.E.2d 812
(10th Dist. Franklin). This is because, subsequent to the revivor of the judgment, a
judgment creditor must take additional steps to execute on the property of the judgment
debtor. Id. “The revivor of a dormant judgment does not automatically revive the lien
affixed to the judgment debtor’s property, but subsequent action on the part of the
judgment creditor must be taken in order to execute upon the revived judgment.” Id. At
that time, as a requirement of these subsequent actions to execute the revived judgment
such as the filing of a judgment lien or garnishment, the judgment creditor must set forth
the specific amount due and unsatisfied on the judgment to the trial court and the
judgment debtor. Id. Based upon this reasoning, we find appellee was not required to
prove and the trial court was not required to enter a finding as to the amount due and
owing on the original judgment at the time the revivor was granted.
{¶26} Appellant finally argues the trial court erred in granting the motion to revive
because the evidence, even excluding Exhibits G and H, demonstrates the debt has been
paid. Appellant cites Exhibit I, a certificate of satisfaction releasing mortgage filed in
Summit County on May 10, 2013, and an affidavit attached to a previous garnishment
proceeding in support of her argument.
Stark County, Case No. 2018CA00182 11
{¶27} The trial court found appellee presented testimony that the underlying
judgment is not satisfied and appellee introduced into evidence the current commercial
loan payoff amount. The trial court found the certificate of satisfaction dated 2013
provides only that the mortgage is released, not fully paid. The trial court granted the
motion to revive because appellee presented testimony that the judgment was unsatisfied
and there was no evidence the note and commercial guaranty were paid.
{¶28} Though appellant argues Morris’ testimony contradicts the affidavit filed in
2014 and thus the trial court should not have revived the judgment, as an appellate court,
we neither weigh the evidence nor judge the credibility of the witnesses. Markel v. Wright,
5th Dist. Coshocton No. 2013CA0004, 2013-Ohio-5274. Further, “an appellate court
should not substitute its judgment for that of the trial court when there exists * * *
competent and credible evidence supporting the findings of fact and conclusions of law.”
Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 461 N.E.2d 1273 (1984). The
underlying rationale for giving deference to the findings of the trial court rests with the
knowledge that the trial judge is best able to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in weighing the
credibility of the proffered testimony. Id. Accordingly, a trial court may believe all, part,
or none of the testimony of any witness who appears before it. In re the Estate of Gordon,
5th Dist. Richland No. 13-CA-77, 2014-Ohio-2087.
{¶29} We find there is competent and credible evidence to supporting the findings
of fact and conclusions of law of the trial court. Morris testified to Exhibit 1, the commercial
loan payoff document, stating that as of August 24, 2018, the payoff amount was
$1,291,991.39. Morris also testified that since the time when the payoff document was
Stark County, Case No. 2018CA00182 12
created, the bank has not received any payments towards the balance; thus, the balance
remains the same, plus applicable interest. As to Exhibit I, Morris stated the document
states it releases the mortgage, however, it does not say “fully paid” and there is no
indication that the underlying note was fully paid. As to the affidavit attached to a previous
garnishment proceeding, Morris testified he does not know why it was filed with the
amount due of $32,545.52 because the payoff amount Morris provided is the amount due
and there is no record of payments coming in to pay down that balance. Morris stated
that, upon his review of the bank records, it is his opinion that the payoff submitted as
Exhibit 1 is the valid amount due and owing at this time from appellant.
{¶30} Appellant’s second assignment of error is overruled.
{¶31} Based on the foregoing, appellant’s assignments of error are overruled.
{¶32} The November 28, 2018 judgment entry of the Stark County Court of
Common Pleas is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Delaney, J., concur