Georgia Banking Co. v. Summit Housing, L.L.C.

2018 Ohio 3468

• Court: Ohio Court of Appeals
• Decided: August 29, 2018
• Docket: 28581
• Status: Published

Opinion

[Cite as Georgia Banking Co. v. Summit Housing, L.L.C., 2018-Ohio-3468.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

GEORGIA BANKING COMPANY C.A. No. 28581

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE SUMMIT HOUSING LLC, et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. CV 2015 10 5016

DECISION AND JOURNAL ENTRY

Dated: August 29, 2018

HENSAL, Presiding Judge.

{¶1} Georgia Banking Company appeals a judgment of the Summit County Court of

Common Pleas that denied its motions for a debtor’s exam. For the following reasons, this Court

affirms.

I.

{¶2} Jeff and Patricia Warren obtained a loan by executing a note that they secured

with a mortgage on a parcel of real property. The Warrens later transferred the property to

Summit Housing, LLC. In 2015, Georgia Banking filed a complaint for foreclosure against

Summit Housing and the Warrens, alleging that the Warrens had defaulted on the note and that it

was entitled to foreclose on the mortgage. The parties eventually agreed to a consent decree,

which the trial court entered. Georgia Banking subsequently moved for a debtor’s exam of both

of the Warrens, alleging that they had property that they were refusing to apply toward the 2

satisfaction of the court’s judgment. The trial court denied its motions. Georgia Banking has

appealed, assigning as error that the trial court incorrectly denied its motions for a debtor’s exam.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING PLAINTIFF/APPELLANT’S MOTIONS FOR DEBTORS’ EXAMS AS THE CONSENT DECREE IN FORECLOSURE ENTERED INTO BY ALL PARTIES CLEARLY STATED THAT A MONEY DAMAGES JUDGMENT WOULD BE RENDERED.

{¶3} Georgia Banking argues that the trial court incorrectly denied its motions for a

debtor’s exam. The court denied the motions for two reasons. First, it determined that the

judgment part of the consent decree did not contemplate that further collections actions would be

taken against the Warrens beyond the sale of the foreclosed property. Second, it determined that

the affidavit that Georgia Banking’s counsel filed with the motions for debtor’s exam was

insufficient under Revised Code Section 2333.09.

{¶4} In its appellate brief, Georgia Banking has argued that the trial court’s first

explanation is incorrect because the consent decree specifically awarded it a monetary judgment.

It has not contested the trial court’s second reason for denying the motions, however, which was

that the averments in the affidavit Georgia Banking submitted in support of the motions were

insufficient. Accordingly, even assuming that its argument regarding the consent decree is

correct, it has failed to establish that the court’s alternative, independent explanation for its

decision was incorrect. See Tabatabai v. Thompson, 9th Dist. Medina No. 16CA0044-M, 2017-

Ohio-361, ¶ 15. If an appellant fails to develop an argument in support of its assignment of

error, “[i]t is not this Court’s duty to create [an] argument for [it].” Rasberry v. Taylor, 9th Dist.

Summit No. 26510, 2013-Ohio-2175, ¶ 6, citing Cardone v. Cardone, 9th Dist. Summit Nos. 3

18349, 18673, 1998 Ohio App. LEXIS 2028, *22 (May 6, 1998); App.R. 16(A)(7). We,

therefore, conclude that Georgia Banking has failed to establish that the trial court incorrectly

denied its motions for a debtor’s exam. Georgia Banking’s assignment of error is overruled.

III.

{¶5} Georgia Banking’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT 4

CARR, J. TEODOSIO, J. CONCUR.

APPEARANCES:

BRIAN GREEN and SEAN BURKE, Attorneys at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JOHN GALONSKI, Assistant Prosecuting Attorney, for Appellee.

JEFF WARREN and PATRICIA WARREN, pro se, Appellees.