2011 Ohio 3663
Ohio Ct. App.2011Background
- Huntington National Bank obtained a cognovit judgment against Herbert on Jan 20, 2009 based on a commercial promissory note.
- Herbert moved to vacate the cognovit judgment on Sep 16, 2009 alleging improper interest calculation not permitted by the note; motion denied as untimely on Apr 2, 2010.
- Herbert filed a Civ.R. 60(B) motion on Apr 20, 2010 seeking relief from the cognovit judgment; trial court later found the motion untimely.
- On Apr 20, 2010 Herbert filed a class action asserting the same interest- calculation claim; Huntington sought summary judgment arguing res judicata.
- The trial court granted summary judgment on Sept 15, 2010, concluding Herbert’s claim was a defense to the cognovit judgment barred by res judicata; Herbert appealed.
- This appeal centers on whether Herbert’s claim is a defense barred by res judicata or a counterclaim properly raised in a separate action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Herbert’s claim is a defense barred by res judicata or a counterclaim. | Herbert argues the claim is a counterclaim and should be a separate suit. | Huntington argues the claim is a defense affecting the amount due and barred by res judicata. | Claim is a defense; res judicata applies to bar it in a subsequent action. |
Key Cases Cited
- Bulkley v. Greene, 98 Ohio St. 55 (1918) (distinguishes defense from counterclaim in cognovit contexts)
- Sapp v. Azar, 53 Ohio App.2d 277 (1977) (misrepresentations claim may be a counterclaim if it does not deny debt/validity)
- Corrigan v. Downing, 55 Ohio App.3d 125 (1988) (res judicata applies to defenses that should have been raised in the original action)