[Cite as Hager v. Swickheimer, 2023-Ohio-414.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY

GENE HAGER,

Plaintiff-Appellee,

- vs -

DARLENE K. SWICKHEIMER,

Defendant-Appellant.

CASE NO. 2022-L-069

Civil Appeal from the

Court of Common Pleas

Trial Court No. 2022 CV 000466

O P I N I O N

Decided: February 13, 2023

Judgment: Reversed and remanded

Daniel F. Lindner, The Lindner Law Firm, LLC, 2077 East 4th Street, Second Floor, 

Cleveland, OH 44115 (For Plaintiff-Appellee).

Matthew C. Rambo, Freeburg & Rambo, LLC, 8228 Mayfield Road, Suite 5B, 

Chesterland, OH 44026 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Darlene Swickheimer, appeals the Judgment of the 

Lake County Court of Common Pleas, denying her Motion for Relief from Judgment. For 

the following reasons, we reverse the decision of the lower court and remand for further 

proceedings consistent with this Opinion.

{¶2} On April 15, 2022, plaintiff-appellee, Gene Hager, filed a Complaint on 

Cognovit against Swickheimer.

{¶3} On April 28, 2022, the trial court entered the following Judgment in favor of 

Hager:
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1. Plaintiff is the named Payee on a Cognovit Note dated January 

18, 2008 that secured a debt from October 6, 2006.

2. Defendant is a named Maker of said Cognovit Note.

3. The Cognovit Note secured a business loan in the principal 

amount of $45,000.00, accruing interest at 5% per annum 

compounded, payable on demand.

4. Plaintiff made demand for payment in full from Defendant, but 

Defendant never made any payment.

5. Defendant is in material default of her contractual obligations 

under the Cognovit Note.

6. As the direct and proximate result of Defendant’s breach of the 

Cognovit Note contract, Plaintiff has incurred ninety seven thousand 

six hundred sixty six 68/100 dollars $97,114.86 [handwritten] 

($97,666.86 [sic]) in contract damages, together with future interest 

thereon a[t] a contract rate of five (5%) per annum.

{¶4} The findings in the Judgment were affirmed by an Affidavit of Gene Hager. 

Attached to the Affidavit was a printout from “The Calculator Site” demonstrating that 

compound interest at a rate of 5% on the principal of $45,000.00 for 185 months amounts 

to $52,114.86.

{¶5} On May 27, 2022, Swickheimer filed a Motion for Relief from Judgment 

pursuant to Civil Rule 60(B)(3) and (5) on the grounds that the April 28 Judgment “was 

based upon a note that does not appear to have been issued for a commercial purpose, 

for which payment was never demanded as due, and for an amount that was incorrectly 

calculated and prayed for by Plaintiff.”

{¶6} On July 5, 2022, the trial court denied the Motion for Relief from Judgment. 

The court’s Judgment provides as follows:

Defendant makes ambiguous statements that the Note “does not 

appear to have been issued for a commercial purpose”1[Fn. 1: There 

is no statutory requirement that a cognovit note state on its face that 
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it is for commercial purposes in order to be enforceable. See R.C. 

2323.13.] and “vehemently denies” that demand for payment was 

made, both without providing an Affidavit and while ignoring 

Plaintiff’s Affidavit averring that the Note was made for a commercial 

purpose and that demand for payment was made. Because 

Defendant has not provided the court with an Affidavit or other

evidence to support her allegations, the court finds that it is 

undisputed that the Note was for commercial purposes, and that 

there is no evidentiary dispute requiring a hearing.

{¶7} On August 1, 2022, Swickheimer filed a Notice of Appeal. On appeal, she 

raises the following assignments of error:

[1.] The trial court erred in denying Appellant’s unopposed Motion for 

Relief from Judgment.

[2.] The trial court erred in failing to conduct an evidentiary hearing 

on Appellant’s unopposed Motion for Relief from Judgment.

{¶8} The assignments of error will be addressed in a consolidated manner.

{¶9} “An appellate court reviews a decision on a Civ.R. 60(B) motion for abuse 

of discretion.” State ex rel. Jackson v. Ohio Adult Parole Auth., 140 Ohio St.3d 23, 2014-

Ohio-2353, 14 N.E.3d 1003, ¶ 21. “If the movant files a motion for relief from judgment 

and it contains allegations of operative facts which would warrant relief under Civil Rule 

60(B), the trial court should grant a hearing to take evidence and verify these facts before 

it rules on the motion.” (Citation omitted.) Coulson v. Coulson, 5 Ohio St.3d 12, 16, 448 

N.E.2d 809 (1983). “Thus, the trial court abuses its discretion in denying a hearing where 

grounds for relief from judgment are sufficiently alleged and are supported with evidence 

which would warrant relief from judgment.” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 

18, 19, 665 N.E.2d 1102 (1996).

{¶10} The test for determining when a party is entitled to relief from judgment as 

set forth in Civil Rule 60(B) and GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 
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Ohio St.2d 146, 351 N.E.2d 113 (1976), “is modified when a party is seeking relief from 

a cognovit judgment.” Natl. City Bank v. Rini, 162 Ohio App.3d 662, 2005-Ohio-4041, 

834 N.E.2d 836, ¶ 18; Huntington Natl. Bank v. D & G Ents., Inc., 7th Dist. Mahoning No. 

12 MA 15, 2013-Ohio-1117, ¶ 20 (“[t]he movant’s burden is somewhat lessened when the 

judgment was taken by confession on warrant of attorney without prior notice”); Home S. 

& L. of Youngstown v. Snowville Subdivision, 8th Dist. Cuyahoga No. 97985, 2012-Ohio4594, ¶ 17.

{¶11} “Because the judgment debtor is not afforded notice or the opportunity to 

answer the complaint prior to the entry of a cognovit judgment, the judgment debtor is not 

required to show entitlement to relief under one of the specific grounds listed under Civ.R. 

60(B).” Rini at ¶ 18. “Therefore, a party seeking relief from a cognovit judgment is only 

required to demonstrate the existence of a meritorious defense and that the motion is 

made within a reasonable time.” (Citation omitted.) Id.; SHJ Co. v. Avani Hospitality and 

Fin., L.L.C., 2022-Ohio-1173, 187 N.E.3d 1121, ¶ 16; Cook Family Invests. v. Billings, 9th 

Dist. Lorain No. 07CA009281, 2009-Ohio-73, ¶ 8.

{¶12} There is no dispute regarding the timeliness of Swickheimer’s Motion. 

Accordingly, the determinative issue is whether she demonstrated the existence of 

meritorious defenses.

{¶13} Swickheimer raised three purported meritorious defenses. She denied, 

despite the Affidavit to the contrary, that Hager ever made a demand for payment and

argued that, “[w]ithout such demand, payment on the Note was never due.” We disagree. 

“If a note does not specify a maturity date, it will be due on demand.” Fogg v. Friesner, 

55 Ohio App.3d 139, 140, 562 N.E.2d 937 (6th Dist.1988). “Furthermore, it has been held 
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that ‘* * * the filing of an action is in itself a sufficient demand against the maker of a note 

to sustain the action and no demand for payment is required prior thereto.” Id., citing 

Union Properties, Inc. v. McHenry, 142 Ohio St. 136, 144, 50 N.E.2d 315 (1943).

{¶14} Swickheimer also argues that, despite the Affidavit to the contrary, “the Note 

is not clearly for a commercial or business loan.” See R.C. 2323.13(E) (“[a] warrant of 

attorney to confess judgment * * *, arising out of a consumer loan or consumer 

transaction, is invalid”). This is not a meritorious defense. Swickheimer does not claim 

that the Note arose out of a consumer loan or transaction, only that it “does not appear to 

have been issued for a commercial purpose.” As noted by the trial court, a promissory 

note is required to specify the underlying transaction. Hager’s Affidavit is evidence that 

the Note secured a business loan and this evidence is not challenged merely because 

the Note is silent with respect to its underlying purpose.

{¶15} Finally, Swickheimer challenges the calculation of interest on the Note. 

With respect to interest, the Cognovit Note provides as follows:

* * * John G. Swickheimer and Darlene K. Swickheimer * * *

promise to pay to the order of Gene Hager * * * the principal sum of 

Forty-Five Thousand and No/100 ($45,000.00), together with interest 

at the rate of Five (5%) per annum on the unpaid balance from the 6 

day of October, 2006, until paid in full.

Said principal and interest shall be payable upon demand.

In the event said amount is not paid in full on the date due, 

interest shall accrue at the rate of one and one-half percent (1.5%) 

per month on the unpaid portion of principal, compounded monthly, 

until the entire amount is paid, or, at the option of Payee [Hager], 

may be withdrawn from the security deposit held by Payee or its 

assignee.

{¶16} Swickheimer points out that, according to the printout attached to Hager’s 

Affidavit, the interest was calculated at a rate of “5% yearly” but compounded “monthly,” 
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contrary to the Note which provides for interest “at the rate of Five (5%) per annum.” She 

further notes that “[n]o effect has been given to [the] provision of the Note” providing for 

interest at the rate of 1.5% compounded monthly. The provision for interest at the rate of 

1.5% compounded monthly was also referred to in Hager’s Affidavit in support of 

judgment (“[t]he Cognovit Note provided for a default interest rate of 1.5% per month, 

compounding monthly”). 

{¶17} The trial court did not address this aspect of Swickheimer’s Motion for Relief 

from Judgment. Rather, the court ruled that “Defendant has not provided the court with 

an Affidavit or other evidence to support her allegations.” This court has held that, “[w]hile 

it is generally advisable and preferable to do so, Civ.R. 60(B) does not require a movant 

to submit evidence in the form of affidavits or alternative evidence produced under oath.” 

Wells Fargo Fin. Leasing, Inc. v. Pero, 11th Dist. Portage No. 2005-P-0053, 2006-Ohio1459, ¶ 12; Ohio Carpenters’ Fringe Benefit Fund v. Krulak, 8th Dist. Cuyahoga No. 

88872, 2008-Ohio-220, ¶ 32 (“Civ.R. 60(B) does not specifically impose a requirement on 

the movant to file evidence in the form of affidavits, * * * [h]owever, it may be necessary 

where the motion requires consideration of facts, which do not appear in the record”). In 

the present case, Swickheimer’s alleged defense, the miscalculation of interest, does not 

rely on evidence extrinsic to the record. The printout from The Calculator Site calculates 

interest that is compounded monthly. Inasmuch as this calculation is contrary to the terms 

of the Note that interest is to be calculated at 5% per annum and that interest at the rate 

of 1.5% compounded monthly shall accrue from the date of demand, Swickheimer has 

alleged facts presenting a meritorious defense.
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{¶18} In the recalculation of interest, the date of demand will be significant for the 

application of the default interest rate. We note that Hager’s Affidavit states that he “made 

demand for payment in full from the Maker in November, 2017.” The trial court’s April 28, 

2022 Judgment Entry acknowledges that “Plaintiff made demand for payment in full” but 

did not incorporate the date of demand. In seeking relief from judgment, Swickheimer 

could not be expected to challenge the demand date when that date was not part of the 

judgment. For the reasons stated above, merely contesting whether demand was made 

is not a meritorious defense inasmuch as the filing of the lawsuit constitutes demand for 

payment. On remand, Swickheimer will be able to contest what the proper date of 

demand should be for the purposes of calculating default interest.

{¶19} Swickheimer’s assignments of error are with merit.

{¶20} For the foregoing reasons, we reverse the Judgment of the lower court and 

remand for further proceedings consistent with this Opinion. Costs to be taxed against 

the appellee.

JOHN J. EKLUND, P.J.,

MARY JANE TRAPP, J.,

concur.