Stojkoski v. Main 271 S., L.L.C.
2011 Ohio 2117
Ohio Ct. App.2011Background
- April 28, 2008, cognovit promissory note for $170,000 secured by mortgage on 271 South Main St, Akron; default and suit filed September 3, 2009 seeking $162,371.67 plus interest.
- September 9, 2009, trial court entered judgment in Stojkoski's favor based on the cognovit note.
- February 18, 2010, Main 271 South moved to vacate the cognovit judgment under Civ.R. 60(B), asserting an offset from assets sold by Stojkoski.
- Edmond Jaber, President of Main 271 South, executed affidavits alleging transactions with Stojkoski related to the property supporting a meritorious defense.
- Stojkoski opposed with affidavits; the trial court held a hearing was not required and denied the motion to vacate on April 23, 2010.
- Main 271 South appeals, arguing the cognovit judgment should be reduced by the value of assets Stojkoski sold; the appellate court affirms, applying Civ.R. 60(B) three-part test and distinguishing cases that allowed offsets.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 60(B) relief requires a meritorious defense and timely filing. | Stojkoski contends no meritorious defense exists. | Main 271 South argues offset/meritorious defense exists. | No; movant failed the GTE test and no meritorious defense shown. |
Key Cases Cited
- GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (Ohio Supreme Court, 1976) (test for Civ.R. 60(B) relief (meritorious defense, grounds, timely filing))
- Strack v. Pelton, 70 Ohio St.3d 172 (Ohio Supreme Court, 1994) (abuse of discretion standard; conjunctive three-part test applies)
- Lykins Oil Co. v. Pritchard, 2006-Ohio-5262 (First District Court of Appeals, 2006) (open-ended liability and lack of set maximum; meritorious defense to cognovit judgment)
- Shuford v. Owens, 2008-Ohio-6220 (Tenth District Court of Appeals, 2008) (set-off/counterclaim not a meritorious defense to cognovit judgment; can sue on set-off separately)
- Freed, 2004-Ohio-3554 (Third District Court of Appeals, 2004) (meritorious defense includes validity of debt and procedure of confession)