First National Bank of Bellevue v. NE Port Investments, LLC, et al.
Court of Appeals No. OT-13-024
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY
Decided: April 25, 2014
2014-Ohio-1760
OSOWIK, J.
Trial Court No. 13 CV 020E
Appellee
v.
NE Port Investments, LLC, et al.
Appellees
DECISION AND JUDGMENT
[Anita Barsan, David Barsan, Betty Oprian, Russell White—Appellants]
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Kenneth R. Resar, for appellees Gene F. Molnar, Trustee, and Mary E. Molnar, Trustee.
Jack Morrison, Jr. and Thomas R. Houlihan, for appellants.
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OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Ottawa County Court of Common Pleas, which denied appellants’ motion to intervene. For the reasons set forth below, this court affirms the judgment of the trial court.
The trial court erred in refusing to allow David and Anita Barsan and Russell White and Betty Oprian to intervene in this matter.
{¶ 3} The following undisputed facts are relevant to this appeal. This case stems from the 2008 sale of the NE Port Marina property along Lake Erie. The marina was sold by Gene and Mary Molnar for $2 million to David and Anita Barsan, Russell White, and Betty Oprian. These individuals collectively comprise the ownership group of NE Port Investments, LLC (“NE Port”).
{¶ 4} To secure full funding for the purchase, NE Port first obtained a loan from First National Bank of Bellevue (“Bank”) in the amount of $1,200,000. The remaining balance of the purchase price was funded through the execution of an $800,000 promissory note issued by NE Port to Gene and Mary Molnar. The note was secured with a second mortgage on the subject real property.
{¶ 5} On January 16, 2013, the Bank filed a foreclosure complaint against NE Port as a result of NE Port’s failure to make the payments required pursuant to the terms of the promissory note. NE Port failed to file an answer.
{¶ 6} Subsequently, on February 25, 2013, the Bank filed a motion for default judgment. On April 16, 2013, it was granted. Notably, the record reflects that appellants and their counsel received written notice of all pending actions via ordinary mail and certified mail. Of significance, the record further reflects that appellants not only executed the underlying note as individual guarantors, but they also executed a cognovit
{¶ 7} The record reflects that their ability to make a timely intervention in a matter in which they had a clear and known interest was in no way compromised or undermined. Nevertheless, no action was taken to intervene in conformity with the requisite time frame.
{¶ 8} On August 9, 2013, approximately two and one-half months after the motions for default judgment in the underlying foreclosure action had been granted to both the Bank and the original sellers, appellants filed their untimely motion to intervene from which this case arises. On September 5, 2013, the trial court denied the motion to intervene. This appeal ensued.
{¶ 9}
{¶ 10} Specifically, the following factors are considered in determining timeliness: (1) the point to which the suit had progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed
{¶ 11} The record reflects the fact that appellants failed to file for intervention in this foreclosure suit until 72 days after final judgment had been entered and the date for the sheriff’s sale had been scheduled.
{¶ 12} The record further reflects that appellants own all of the membership units of NE Port, and that the summons and foreclosure complaint was served upon them in January 2013. Appellants further alleged in their own motion to intervene that their potential claim arose on October 12, 2012, when the Summit County Court of Common Pleas released $391,741.04 to First National Bank of Bellevue and applied these garnished funds to reduce the indebtedness of NE Port. These garnished funds were seized from various accounts owned by appellants after First National Bank of Bellevue obtained a cognovit judgment against appellants.
{¶ 13} The record reflects that by the time the motion for intervention had been filed, any and all potential interests in the real property had been established by the court
{¶ 14} Finally, appellants would have been unable to establish any unusual circumstances militating in favor of intervention after judgment had been taken in this foreclosure suit.
{¶ 15} Wherefore, we find that appellants failed to comport with
{¶ 16} The decision of the Ottawa County Court of Common Pleas is hereby affirmed. Appellants are ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J.
Thomas J. Osowik, J.
James D. Jensen, J.
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.