First Natl. Bank of Pennsylvania v. Nader
2017 Ohio 1482
| Ohio Ct. App. | 2017Background
- In 1998 Ruth Nader and Elie Abboud executed a promissory note and a home‑equity line, later transferring the property to a revocable trust. In 2006 Malek Abboud guaranteed the credit line.
- In 2008 Nader (individually and as trustee) and the Trust executed Assumption and Modification Agreements for both loans; Elie did not sign those agreements. Malek consented as guarantor to the credit‑line modification.
- Nader, the Trust, and Malek defaulted in 2010; the Bank sued for breach, guaranty liability, and foreclosure. The Bank amended to add Elie, then later voluntarily dismissed him.
- The trial court granted the Bank summary judgment, entered a foreclosure decree, granted the Bank’s motion in limine to exclude pre‑modification evidence of amounts, struck defendants’ jury demand, and denied leave to refile counterclaims and to join Elie as indispensable.
- The Ninth District affirmed: it held the Bank met its summary judgment burden (defendants failed to show genuine issues), Elie was not indispensable, and the trial court did not abuse discretion in denying leave to reinstate counterclaims. Several assignments were declined as moot or forfeited.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment for the Bank was proper | Bank: produced evidence showing it was entitled to enforce note/mortgage, established default, conditions precedent satisfied, and provided figures of amounts due | Nader/Trust/Abboud: Bank failed to give Elie notice (condition precedent), modifications unenforceable (unilateral change, R.C.1303.15/parol evidence, unconscionability), and amounts due are disputed | Affirmed. Court found Bank could proceed against Nader/Trust alone, modification agreements were enforceable and unambiguous, defendants failed Dresher burden to raise genuine issues about enforceability or amounts |
| Whether Elie Abboud was an indispensable party requiring joinder | Bank: not pursuing Elie at summary judgment stage; guaranty allows Bank to proceed separately | Malek: as guarantor his obligations derivative of Elie’s; risk of inconsistent obligations and need for subrogation against Elie | Affirmed. Guaranty expressly made obligations independent and waived subrogation; Elie not indispensable under Civ.R.19(A) |
| Whether trial court abused discretion by denying leave to reinstate counterclaim | Bank: defendants voluntarily dismissed counterclaims long after discovery; refiling would prejudice Bank and is tactical to circumvent adverse rulings | Nader/Trust: counterclaim compulsory; prior counsel dismissed it without client knowledge; res judicata bars refiling in new action so justice requires reinstatement | Affirmed. Court found dismissal was voluntary (not an omitted counterclaim), defendants failed to show oversight/excusable neglect, and refiling would prejudice and delay resolution |
| Whether exclusion of pre‑modification evidence (motion in limine) and striking jury demand were erroneous | Bank: exclusion limited scope to modification terms; striking jury demand appropriate under case posture | Defendants: pre‑2008 evidence necessary to challenge amounts and enforceability; jury demand should stand | Motion in limine ruling not reviewable on this appeal; striking jury demand was rendered moot by other rulings. Court declined to address as preserved issues or found forfeited |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (de novo review standard for summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (movant’s and non‑movant’s burdens on summary judgment)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Ohio 1977) (summary judgment standard elements)
- Bellman v. American Intl. Group, 113 Ohio St.3d 323 (Ohio 2007) (parol‑evidence rule principles)
- Taylor Bldg. Corp. of America v. Benfield, 117 Ohio St.3d 352 (Ohio 2008) (definition and test for unconscionability)
- Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d 51 (Ohio 1989) (contract interpretation; intent found in writing)
- Shifrin v. Forest City Enterprises, Inc., 64 Ohio St.3d 635 (Ohio 1992) (presumption that written contract contains parties’ intent)
- Illinois Controls, Inc. v. Langham, 70 Ohio St.3d 512 (Ohio 1994) (when parol evidence is admissible to resolve ambiguity)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard)