Landmark Natl. II Corp. v. Green

[Cite as Landmark Natl. II Corp. v. Green, 2017-Ohio-7706.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
LANDMARK NATIONAL II CORP., )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 16 MA 0072
V. )
) OPINION
JOHN C. GREEN, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 03 CV 1990
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Attorney Waymon McLeskey II
1630 Grandview Ave. Suite B
Columbus, Ohio 43212-2458
For Defendant-Appellant Attorney Richard Selby II
60 South Park Place
Painesville, Ohio 44077
JUDGES:
Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb
Dated: September 11, 2017
[Cite as Landmark Natl. II Corp. v. Green, 2017-Ohio-7706.]
DONOFRIO, J.
{¶1} Defendant-appellant, John Green, appeals from a Mahoning County
Common Pleas Court judgment granting the motion of plaintiff-appellee, Landmark
National II Corporation, for an order of revivor.
{¶2} In 2003, Sky Bank brought a lawsuit against appellant on a cognovit
note. Sky Bank obtained a judgment against appellant on June 13, 2003, in the
amount of $16,076.83 (the Judgment).
{¶3} On January 10, 2008, Sky Bank assigned the Judgment to appellee.
Appellee attempted to collect from appellant in 2008, but could not obtain service.
{¶4} No further action was taken until, on January 8, 2016, appellee filed a
motion for order of revivor.
{¶5} The trial court issued a conditional order of revivor allowing appellant
the chance to respond. Appellant filed a memorandum in opposition to the motion for
order of revivor. Appellant argued that appellee did not outline in its motion how or
why it stood as a successor in interest to Sky Bank and, therefore, had not
established standing to bring the motion. He also argued the Judgment went
dormant in 2008, and no interest could be due after that time.
{¶6} The matter was heard before a magistrate. The magistrate found that
appellee was the assignee of the Judgment obtained by Sky Bank in this case.
Therefore, he found appellee had standing to file the motion to revive the Judgment.
The magistrate further found that appellee was not entitled to interest after the date
that the Judgment went dormant, which he found was July 23, 2013.
{¶7} Appellant filed objections to the magistrate’s decision. He argued that
appellee’s initial motion to revive the Judgment did not contain any evidence to
demonstrate that it was Sky Bank’s successor in interest for this Judgment.
{¶8} The trial court overruled appellant’s objections. It found that the
Judgment was properly assigned from Sky Bank to appellee. Therefore, appellee
had a legal right to revive the judgment. The trial court adopted the magistrate’s
decision and entered judgment accordingly.
{¶9} Appellant filed a timely notice of appeal on May 26, 2016. He now
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raises a single assignment of error.
{¶10} Appellant’s assignment of error states:
THE TRIAL COURT ERRED IN AFFIRMING THE
MAGISTRATE’S DECISION GRANTING PLAINTIFF/APPELLEE
LANDMARK NATIONAL II CORP.’S MOTION FOR AN ORDER OF
REVIVOR.
{¶11} Appellant argues appellee did not prove that it had standing to bring this
claim. Appellant claims that while the evidence submitted by appellee with its reply
brief in the trial court suggests that the note assigned to appellee may have been the
same note Sky Bank took judgment on, the evidence is not unequivocal.
{¶12} An appellate court reviews de novo the issue of whether a party has
standing. Wells Fargo Bank, N.A. v. Cook, 7th Dist. Nos. 15 CO 0013, 0019, 2016-
Ohio-1060, ¶ 18.
{¶13} “Generally speaking, standing is ‘[a] party's right to make a legal claim
or seek judicial enforcement of a duty or right.’” Wells Fargo Bank, N.A. v. Horn, 142
Ohio St.3d 416, 2015-Ohio-1484, 31 N.E.3d 637, ¶ 8, reconsideration denied, 142
Ohio St.3d 1520, 2015-Ohio-2341, 33 N.E.3d 67, ¶ 8, quoting Black's Law Dictionary
1625 (10th Ed.2014). In order to have standing, the party must demonstrate an
immediate, pecuniary interest in the subject matter of the litigation. In re Estate of
Horton, 9th Dist. Nos. 20695, 20741, 2002-Ohio-1377.
{¶14} In support of his position, appellant relies on this court’s decision in
Hudson & Keyse, LLC v. Yarnevic-Rudolph, 7th Dist. No. 09 JE 4, 2010-Ohio-5938.
In that case, we noted that when an assignee is attempting to collect on an account,
the assignee “must allege and prove the assignment.” Id. at ¶ 21, quoting Zwick &
Zwick v. Suburban Constr. Co., 103 Ohio App. 83, 84, 134 N.E.2d 733 (1956). We
then discussed Washington Mut. Bank, F.A. v. Green, 156 Ohio App.3d 461, 2004-
Ohio-1555, 806 N.E.2d 604 (7th Dist.), where we held that an affidavit did not
establish that the note and mortgage in that case had been assigned to the bank
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because it did not contain an unequivocal statement that the bank was the holder of
the note and mortgage and because it did not mention how, when, or whether the
bank was assigned the note and mortgage. Id. at ¶ 22. We then went on to
determine that the “how and when” elements had not been met in the case:
The assignment and bill of sale is evidence that Appellee is the
assignee of Beneficial's interest in some unidentified accounts,
however, due to the fact that the agreement referred to in the
assignment and bill of sale is not attached, it is not clear that
Appellant's account is among the assigned accounts. To the extent that
there is no evidence that Appellant's personal loan agreement was
among the accounts assigned to Appellee by Beneficial, the trial court
erred as a matter of law when it entered summary judgment.
Id. at ¶ 24.
{¶15} This case, however, is distinguishable from Hudson. Firstly, Hudson
was a summary judgment case. This case is here on a motion for an order of revivor.
Secondly, and more importantly though, in the case at bar, there is more than
sufficient evidence to prove that Sky Bank’s Judgment against appellant was
assigned to appellee.
{¶16} The Schedule of Loans attached to the Bill of Sale from Sky Bank to
appellee includes a loan to a John Green in the amount of $15,000 on January 31,
2003. (Reply in Support of Revivor, Caldwell Aff. Ex. 1). This particular loan is listed
as account number 1100187863. (Reply in Support of Revivor, Caldwell Aff. Ex. 1).
This is the identical account number, identical loan amount, and identical date listed
on the original promissory note from Sky Bank to appellant, which Sky Bank attached
to its original complaint.
{¶17} Moreover, an Assignment of Judgment was filed in this case on
January 10, 2008. The Assignment of Judgment states that Sky Bank “does hereby
sell, assign, transfer and set over unto [appellee] * * * all of their right, title and
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interest in the within Judgment granted in favor of Plaintiffs and against Defendant on
or about June 13, 2003 in the amount of $16,076.83.”
{¶18} This evidence demonstrates that appellee has standing to bring the
motion for revivor against appellant. In other words, the evidence shows that
appellee has an immediate, pecuniary interest in the subject matter of the litigation.
Therefore, the trial court did not err in granting appellee’s motion for revivor.
{¶19} Accordingly, appellant’s sole assignment of error is without merit and is
overruled.
{¶20} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
DeGenaro, J., concurs.
Robb, P.J., concurs.