DocketNumber: No. 08AP-658.
Citation Numbers: 2009 Ohio 1752
Judges: KLATT, J.
Filed Date: 4/14/2009
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} On September 9, 2004, Burda borrowed $252,000 from Sky Bank ("Sky") and executed a promissory note in which he agreed to repay Sky the amount he *Page 2 borrowed, plus interest. On September 21, 2004, Burda borrowed an additional $164,640 from Sky. That same day, Burda executed two different promissory notes, one promising to repay Sky $81,120, plus interest, and the other promising to repay Sky $83,520, plus interest.
{¶ 3} All three promissory notes included a warrant of attorney, in which Burda authorized any attorney to appear on his behalf in a trial court and confess judgment against him for the unpaid amount of the promissory note. Additionally, all three notes contained the following:
NOTICE: FOR THIS NOTICE "YOU" MEANS THE BORROWER AND "CREDITOR" AND "HIS" MEANS LENDER.
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.
{¶ 4} On December 20, 2007, Huntington, the successor by merger to Sky, filed a complaint seeking a judgment against Burda pursuant to the warrants of attorney. Huntington also filed an answer on Burda's behalf that admitted all the allegations in the complaint and confessed judgment in Huntington's favor. On December 21, 2007, the trial court issued a judgment entry awarding Huntington damages for the unpaid amounts on each of the three promissory notes, as well as all interest, costs, fees, and expenses that accrued from December 14, 2007 until Burda paid the judgment in full. *Page 3
{¶ 5} Six months after the trial court entered judgment against him, Burda filed a motion to vacate that judgment. Burda argued that the trial court lacked authority to enter judgment against him because the three promissory notes did not comply with R.C.
{¶ 6} Burda now appeals from the July 7, 2008 judgment and assigns the following errors:
[1.] THE TRIAL COURT ERRED AS A MATTER OF LAW IN ENTERING THE DECEMBER 21, 2007 COGNOVIT JUDGMENT BECAUSE THERE WAS AN ABSENCE OF JURISDICTION.
[2] THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO VACATE THE DECEMBER 21, 2007 COGNOVIT JUDGMENT.
[3] THE TRIAL COURT ERRED IN ENTERING THE DECEMBER 21, 2007 JUDGMENT BECAUSE IT WAS INVALID.
{¶ 7} Because they are interrelated, we will address Burda's first and second assignments of error together. By these two assignments of error, Burda argues that because the trial court lacked subject matter jurisdiction when it rendered the December 21, 2007 judgment, it erred in denying his motion to vacate that judgment. Burda asserts that the promissory notes' failure to comply with the requirements of R.C.
{¶ 8} A promissory note that contains a warrant of attorney is a cognovit note. D.H. Overmyer Co., Inc. v. Frick Co. (1972),
{¶ 9} A trial court does not have subject matter jurisdiction to enter judgment on a cognovit note unless the party seeking the judgment complies with all of the requirements of R.C.
{¶ 10} R.C.
A warrant of attorney to confess judgment contained in any promissory note * * * executed on or after January 1, 1974, is invalid and the courts are without authority to render a judgment based upon such a warrant unless there appears on the instrument evidencing the indebtedness, directly above or below the space or spaces provided for the signature of the *Page 5 makers, or other person authorizing the confession, in such type size or distinctive marking that it appears more clearly and conspicuously than anything else on the document:
"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."
Here, Burda argues that the promissory notes violate R.C.
{¶ 11} To comport with R.C.
{¶ 12} In the case at bar, the warning is the only paragraph in the promissory notes that is formed entirely of bolded, capitalized words and surrounded by a black box. Moreover, the warning appears in a larger type size than the majority of the other text in the promissory notes. We conclude that, in combination, the use of bolding, capitalization, type size, and a black box make the warning the most clear and conspicuous part of the promissory notes.
{¶ 13} Burda, however, argues that the words "Sky Bank," which appear on the top of the first page of each promissory note, are more clear and conspicuous than the statutorily-required warning. Both the large type size and boldness of the font give the words "Sky Bank" prominence. Nevertheless, we conclude that the warning is more clear and conspicuous, particularly because it — unlike the words "Sky Bank" — is enclosed in a box with thick black margins.
{¶ 14} Next, Burda argues that the promissory notes violate R.C.
{¶ 15} Unlike the cognovit notes at issue in Bank One, Youngstown,N.A. or Hutcheson, the promissory notes Burda signed repeat the statutorily-required warning word-for-word. Burda complains, however, that the notes violate R.C.
{¶ 16} As the promissory notes contain a warning that meets the R.C.
{¶ 17} By Burda's third assignment of error, he argues that the December 21, 2007 judgment is invalid because the terms of the promissory notes do not support it. Burda points out that the promissory notes identify Sky as the entity entitled to repayment, but *Page 8 the trial court entered judgment in favor of Huntington. Because nothing in the notes or record establishes Huntington as the holder of the notes, Burda maintains that the trial court erred in rendering a cognovit judgment in Huntington's favor.
{¶ 18} Burda did not raise this argument in the trial court. "`Ordinarily, reviewing courts do not consider questions not presented to the court whose judgment is sought to be reversed.'" State ex rel.Ohio Civ. Serv. Emp. Assn., AFSCME, Loc. 11, AFL-CIO v. State Emp.Relations Bd.,
{¶ 19} Apparently recognizing the bar that the waiver doctrine imposed, Burda advanced a different argument in his reply brief. For the first time, Burda argued that the judgment was void because the promissory notes did not facially support the judgment. By claiming that the judgment was void, rather than invalid, Burda argued that he raised this issue below when he challenged the trial court's subject matter jurisdiction.
{¶ 20} Notably, a void judgment is distinct from a judgment that is merely invalid, irregular, or erroneous. State v. Simpkins,
{¶ 21} Here, however, Burda ignores the fact that in his third assignment of error, he contends that the trial court erred in rendering an invalid, not void, judgment. This court rules on assignments of error, not mere arguments. App. R. 12(A)(1)(b) (stating that "a court of appeals shall * * * [d]etermine the appeal on its merits on the assignments of error set forth in the briefs"); Williams v.Barrick, 10th Dist. No. 08AP-133,
{¶ 22} For the foregoing reasons, we overrule Burda's assignments of error, and we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
FRENCH, P.J., and BRYANT, J., concur. *Page 1
Williams v. Barrick, 08ap-133 (9-11-2008) , 2008 Ohio 4592 ( 2008 )
D. H. Overmyer Co., Inc. of Ohio v. Frick Co. , 92 S. Ct. 775 ( 1972 )
Jordan v. Trulight Church of God , 2021 Ohio 2507 ( 2021 )
Kemba Fin. Credit Union v. Covington , 2021 Ohio 2120 ( 2021 )
Webber v. Dept. of Pub. Safety , 103 N.E.3d 283 ( 2017 )
Ward v. Ward , 2021 Ohio 2571 ( 2021 )
State v. Robinson , 2021 Ohio 2572 ( 2021 )
Reese v. Reese , 2023 Ohio 360 ( 2023 )
JPMorgan Chase Bank, N.A. v. Cloyes , 2021 Ohio 3316 ( 2021 )
Isreal v. Franklin Cty. Commrs. , 2021 Ohio 3824 ( 2021 )
Buckeye Inst. v. Kilgore , 2021 Ohio 4196 ( 2021 )
State v. Alexander , 2017 Ohio 4196 ( 2017 )
State v. Moore , 2021 Ohio 1379 ( 2021 )
Hand & Hand MRDD Residential Servs., Inc. v. Ohio Dept. of ... , 102 N.E.3d 1128 ( 2017 )
State v. Scott , 102 N.E.3d 572 ( 2017 )
State v. Davis , 2018 Ohio 58 ( 2018 )
State v. Coogan , 2019 Ohio 3016 ( 2019 )
Saha v. Research Inst. at Nationwide Childrens Hosp. , 2019 Ohio 1792 ( 2019 )
Bechtel v. Turner , 2020 Ohio 4078 ( 2020 )
State v. McCall , 2021 Ohio 1032 ( 2021 )
State v. Angel , 2021 Ohio 4322 ( 2021 )