[Cite as Century Natl. Bank v. Hines , 2012-Ohio-4041.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

CENTURY NATIONAL BANK, : Plaintiff-Appellee, Case No. 11CA28 : vs. : PAMELA A. HINES, et al., Defendants-Appellants.

_________________________________________________________________ APPEARANCES: COUNSEL FOR APPELLANT Thomas James Corbin, 842 North Columbus PAMELA A. HINES: Street, Lancaster, Ohio 43130

COUNSEL FOR APPELLEE: Scott D. Eickelbe rger and Ryan H. Linn, Kincaid, Taylor & Geyer, 50 North Fourth Street, P.O. Box 1030, Zanesville, Ohio 43702

CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 8-28-12 PER CURIAM. {¶ 1} This is an appeal from an Athens Count y Common Pleas Court judgment in favor of Century National Bank, plainti ff below and appellee herein, a nd against Pamela A. Hines,

defendant below and a ppellant herein. {¶ 2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY GRANTING JUDGMENT IN FORECLOSURE, UPON CONFESSION OF JUDGMENT.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY GRANTING JUDGMENT INATHENS, 11CA28 2

FORECLOSURE PRIOR TO WHEN SERVICE OF PROCESS HAD BEEN EFFECTED [sic ] UPON THE DEFENDANT/MORTGAGOR.” THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN GRANTING JUDGMENT IN FORECLOSURE PRIOR TO EXPIRATION OF THE TIME ALLOTTED BY RULE FOR ANSWERING THE COMPLAINT.”

FOURTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN GRANTING JUDGMENT BY CONFESSION WHEN THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE ORIGINAL COGNOVIT NOTE WAS PRESENTED TO THE TRIAL COURT FOR REVIEW.” {¶ 3} Appellee commenced the instant action on August 5, 2011 by filing a complaint that alleged that appellant was in default on five “cognovit promissory notes.” Appellee demanded judgment for the amount s due and owing under those notes, as well as foreclosure of the five mortgages appellant gave to secure them. {¶ 4} On August 25, 2011, pursuant to the cognovit provision in the notes, D. Scott Rankin answered for appellant, waived service of process and confessed judgment in favor of appellee. Judgment was entere d for appellee on September 7, 2011, finding appellant in default of the notes, awarding damages to appellee for amounts due and owing and ordering foreclosure of five mortgages and sale of the properties pledged as security . Service of both the complaint and the final judgment were made on appellant by certified mail, but was not claimed. {¶ 5} Appellant entered a limited appearance on October 5, 2011 to file a notice of appeal on the judgment of foreclosure. The matter is now properly before us for review. 1

1 The Ohio Constitution grants appellate jurisdiction only when a final appealable order exists. See Davison v. Reni , 115 Ohio App.3d 688, 692, 686 N.E.2d 278 (4 th Dist. 1996); Prod. Credit Assn. v. Hedges , 87 Ohio Ap.3d 207, 210, 621ATHENS, 11CA28 3

I {¶ 6} At the outset, we note that as this Court ha s previously stated that the “particularly appropriate” means for challenging a cognovit judgment is by filing a Civ.R. 60(B) motion for relief from judgment. See e.g. Century Natl. Bank v. Gwinn , 4 th Dist. No. 11CA20, 2012-Ohio-768, at ¶8. Appellant chose to forego this route, however, because she feels “it is not at all clear that a motion brought pursuant to Civ il Rule 60(B) is appropria te.” Also indicated in Century Natl. Bank , supra at ¶8, are other means (includi ng an appeal) to attack a cognovit judgment. With that in mind, we turn our atte ntion to the merits of the assigned errors.

II {¶ 7} In the first assignment of error, appellants challenge the legality of the judgments in foreclosure. Appellant does not challenge the trial court’s entry of judgment on the five cognovit notes, but she argues that even if the c ourt had authority to enter judgment on the notes, that authority did not extend to ordering foreclos ure of the mortgages securing those notes. We agree with appellant with respect to four of the five mortgages, but disagree with respect to one. {¶ 8} This Court recently held in Century National Bank v. Gwinn , at ¶¶25-26: It is axiomatic that a mortgage is a separate contract from the promissory note.

N.E.2d 1360 (4 th Dist. 1993); Kouns v. Pemberton , 84 Ohio App.3d 499, 501, 617 N.E.2d 701 (4 th Dist. 1992). The judgment appealed here clearly contemplated further proceedings, including a sale of the secured premises and distribution of proceeds. Although such actions seem counterintuitive to the notion of finality, Ohio law has always held that a judgment ordering sale of mortgaged land is a final appeal able order in a foreclosure case. Third National Bank of Circleville v. Speakman , 18 Ohio St.3d 119, 120, 480 N.E.2d 411(1985); Oberlin Savings Bank Co. V. Fairchild , 175 Ohio St. 311, 312, 194 N.E.2d 580 (1963); Queen City Savings & Loan Co. v. Foley , 170 Ohio St. 383, 165 N.E.2d 633 (1960), at paragraph one of the syllabus. Because the judgment appealed herein or dered sheriff’s sales for the property securing th e notes, we find that it constitutes a final appealable order.ATHENS, 11CA28 4 The right to judgment on a note is one cause of action and the right to foreclose a mortgage is another. This is so because “ ‘[a] mortgage is merely security for a debt and is not the debt itself.’‘[E]ven when a promissory note is incorporated into the mortgage deed, it is still independent of the mortgage and is a separate enforceable contract between the parties.’Logically then, even when a mortgage is incorporated into a promissory note, the note remains independent of the mortgage and is a separate, enforceable contract between the parties. * * *

* * * Hence, while it was appropriate for appellee to asse rt the causes of action herein within a single complaint, it nonetheless remains that the not e and the mortgage c onstitute two separate contracts. While [appellant], indi vidually and as trustee, voluntar ily waived certain rights under the cognovit promissory note, there is no i ndication that she did so under the mortgage . In executing the promissory note, [appellant], individually and as trustee, became obligated to pay

the amount due under the note in the event of de fault, and agreed to waive the right to prejudgment notice and hearing, which necessa rily included a waiver of the procedural requirements of Civ.R. 3(A) and 4(A). In conveying the mortgage to secure payment of the debt represented by the note, [appellant], as trustee, effectively obligated the trust to pay the amount

due under the note in the event of default or risk foreclosure of the mortgaged property. Though waiving specific rights and giving a warrant of attorney to appellee on the promissory note, [appellant], as trustee, did not do so under the separate mortgage contract . (Internal citations omitted.) (Emphasis added.) {¶ 9} Based upon our holding in Century National Bank , appellant is correct that judgments of

foreclosure could not be issued against her, without notice, ba sed on the cognovit (confession of judgment) provisions in the note. However, when a like provision was also included into a mortgage securing that debt, it is a different matter.ATHENS, 11CA28 5 {¶ 10} In the case sub judice four of the five mort gages at issue do not contain a confession of judgment/cognovit provision. The mortgage attached to the complaint and denoted as “Exhibit B” does contain a “Confession of Judgment” clause on page f our of the instrument. Once again, our holding in Century National Bank was premised on the absence of a c onfession of judgment provision in the mortgage. However, at least one of the mortgages at issue in this case contains such a provision. Thus, a judgment of foreclosure entered on that par ticular mortgage complies with our holding in Century

National Bank

.

{¶ 11} For these reasons, appellant’s first assign ment of error is sustained in part, overruled in part, and the matter remanded to the trial court for further proceedings on the four mortgages that do not contain a cognovit provision.

III {¶ 12} We jointly consider appella nt’s second and third assign ments of error that also challenge the five foreclosure judgments on various procedural grounds. Insofar as the mortgage that contains a cognovit clause, appella nt agreed in advance to allow the lender to retain an attorney to come into the trial court and confess judgment against her. Generally speaking, contracts should be enforced as they are written. See generally Ruiz v. GEICO , 10 th Dist. No. 08AP-955, 2009-Ohio- 2759, at ¶8; Jackson v. Pub. Entities Pool of Ohio , 2 nd Dist. No. 23049, 2009-Ohio-1772, at ¶13. {¶ 13} Appellant cites no aut hority that prohibits insertin g a clause for confession of judgment into a mortgage on investment propert y and we are aware of none. Appellant cannot now be heard to complain that this cognovit pr ovision allowed judgment to be entered againstATHENS, 11CA28 6 her without service of process or before the running of time to an swer the complaint. Appellant signed a contract (i.e. the mortgage attached to the complaint as Exhibit B) that contained a

clause to allow for that action and she should be held to the contract provisions to which she

assented. {¶ 14} As for the other four mortgages, our hol ding on appellant’s fi rst assignment of error renders her arguments under these two assi gnments of error moot and we will disregard them. See App.R. 12(A)(1)(c). Thus, we he reby overrule appellant 's second and third assignments of error.

IV {¶ 15} Appellant argues in her four th assignment of error that the trial court erred by granting judgment on the five cognovit notes wit hout those notes having been presented to the trial court for inclusion in the record. We disagree. {¶ 16} Again, in Century National Bank at ¶¶12-13, we held that an attorney confessing judgment pursuant to the cognovit provision of a note complies with R.C. 2323.13(A) when (1) the original notes are in the record and (2) there is some indication they were considered by the trial court. The facts in this case are virtually identical to those in Century National Bank . An envelope in the record contains the original not es, as well as a notation on the envelope that its contents were “deemed by the trial court” as “nonpub lic.” We thought this satisfactory in Century National Bank and do again here. 2

2 Appellant does not assign as error that the trial court e rred by entering judgment of foreclosure on the mortgage that contained the confession of judgment clause without having the original instrument before it and we will not raise that issue sua sponte.ATHENS, 11CA28 7

{¶ 17} For these reasons, we find no merit to appella nt's fourth assignme nt of error and it is hereby overruled. {¶ 18} Having sustained, in part, a ppellant’s first assignment of error, the trial court’s judgment is affirmed in part, reversed in part and the case remanded for further proceedings consistent with this opinion on the other four mortgages.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.ATHENS, 11CA28 8

Kline, J., dissenting, in part. {¶ 19} I respectfully dissent as to the “Exhibit B mortgage.” Under Ohio law, “a mortgagee has three concurrent remedies: (1) an action on the debt; (2) foreclosure in equity; and (3) an action in ejectment.” 69 Ohio Jurispr udence 3d, Mortgages and Deeds of Trust, Section 260. And here, the Exhibit B mortgage’s confessi on of judgment states that “Grantor hereby irrevocably authorizes and empowers any attorney-a t-law, including an attorney hired by Lender, to appear in any court of record a nd to confess judgment against Grantor for the unpaid amount of this Mortgage [.]” (Emphasis added.) Significantly , the confession of judgment does not contain any variation of the wo rd “foreclosure.” Therefore, based on the plain language, I

believe the confession of judgment addresses just one of the three remedies available to the mortgagee -- an action on the debt. {¶ 20} In considering the Exhibit B mortgage, we must strictly cons true and apply the cognovit judgment. See Gunton Corp. v. Banks , 10th Dist. No. 01AP-988, 2002-Ohio-2873, ¶ 29, citing Lathrem v. Foreman , 168 Ohio St. 186, 188, 151 N.E.2d 905 (1958). Accordingly, I would find the following: Because the confession of judgment references only an action on the debt, the trial court did not have the authority to enter a judgment in foreclosure.

{¶ 21} As a result, I respectfully dissent as to the Exhibit B mortgage. I concur in judgment and opinion as to the other four mortgages.ATHENS, 11CA28 9

JUDGMENT ENTRY It is ordered that the judgment be affirmed in part, reversed in part and the case beATHENS, 11CA28 10 remanded for further proceedings c onsistent with this opinion. A ppellant to recover of appellee costs herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appella te Procedure. Harsha, J.: Concurs in Judgment & Opinion Kline, J.: Dissents with Opinion as to Ex hibit B mortgage & Concurs in Judgment & Opinion as to remaining 4 mortgages

For the Court

BY: Peter B. Abele Presiding Judge

BY: William H. Harsha, Judge

BY: Roger L. Kline, Judge

NOTICE TO COUNSELATHENS, 11CA28 11 Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk. Topics & Issues :