By Porter Wright on The Ohio Judicial Conference has issued a bench card, a copy of which is attached, that gives Ohio’s Common Pleas Court judges a checklist they may use when presented with an order seeking judgment on a note containing a warrant of attorney. While the bench card is merely advisory, it represents a victory for those … Continue Reading
By Porter Wright on Another attack on the use of warrants of attorney to confess judgment was recently introduced into the 132nd Ohio General Assembly. H.B. 67 was introduced on February 16, 2017 by Representative Ron Young, a Republican of Leroy Township in Lake County. The bill has not yet been assigned to a committee. The bill seeks to … Continue Reading
By Walter Reynolds on Most of us are familiar with that old saw “location, location, location”. While location might enhance the value of real estate, including the location as part of the collateral description in the UCC financing statement can limit the protections provided to a secured creditor and may provide a strategy for attack by a bankruptcy trustee. … Continue Reading
By Jason Gerken and Porter Wright on On September 9, 2016, the United States Court of Appeals for the Sixth Circuit issued a decision that parties in foreclosure proceedings should read carefully. In MSCI 2007-IQ16 Granville Retail, LLC v. UHA Corporation, LLC, Case No. 15-3524, the court addressed whether the sale of foreclosed property during the pendency of an appeal moots … Continue Reading
By Walter Reynolds on The Seventh Circuit Court of Appeals in Unsecured Creditors Committee of Sparrer Sausage Co., Inc. v. Jason’s Foods, Inc., 2016 WL 3213090 (7th Cir. June 10, 2016) expanded the scope of the ordinary course defense in a bankruptcy preference action. This case provides an excellent road map for a creditors’ rights attorney defending a preference … Continue Reading
By Steven Hoying and Porter Wright on The Ohio General Assembly is currently considering a bill that would greatly restrict creditors’ ability to ask debtors to sign cognovit notes. A cognovit note allows a creditor, upon a debtor’s default, to enter judgment against the debtor without the usual notice or hearing. Current Ohio law, specifically Ohio Revised Code Section 2323.13, generally enforces … Continue Reading
By Jason Gerken and Porter Wright on In what most pundits agreed would be a swift reversal, the Ohio Supreme Court did in fact unanimously reverse the Ninth District Court of Appeals in Wells Fargo Bank, N.A. v. Horn, Slip Opinion No. 2015-Ohio-1484, a 20-paragraph decision that helps to explain a sometimes-misunderstood line from Schwartzwald. In Horn, Wells Fargo filed the foreclosure … Continue Reading
By Porter Wright on I. Introduction Effective March 23, 2015, Ohio’s antiquated receivership statute (Ohio Rev. Code Chapter 2735) will be modernized, particularly as it relates to the appointment of a receiver in commercial mortgage foreclosures and the ability of a receiver to sell real estate free and clear of liens. II. Appointment of a Receiver Previously, commercial mortgagees … Continue Reading
By Porter Wright on Does a conflict of interest arise under the Ohio Rules of Professional Conduct (“Rules”) when an attorney confesses judgment on a cognovit note? No, according to a recent opinion (Opinion 2014-3, August 8, 2014) issued by The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline (“Board”), so long as the cognovit note … Continue Reading
By Porter Wright on Legislation has been introduced in the Ohio House that would amend Ohio’s foreclosure law in a manner favorable to licensed auctioneers and realtors and unfavorable to county sheriffs and appraisers. As set forth below, House Bill 586 would, among other things, permit “private selling officers” to conduct judicial sales of real property; permit written or … Continue Reading
By Porter Wright on In K One Limited Partnership v. Salh Khan, et al., 10th Dist. No. 13AP-830, 2014 Ohio 2079, the Tenth District Court of Appeals for Franklin County, Ohio reexamined the limited meritorious defenses available to obtain relief from a cognovit judgment under Civ. R. 60(B) and held that such defenses are restricted “to the integrity and … Continue Reading
By Matt Moberg on As all professionals whose business involves the prosecution of foreclosures in Ohio almost certainly know by now, the Ohio Supreme Court’s decision in Fed. Home Loan Mortg. Corp. v. Schwartzwald1 provided that the foreclosing plaintiff must have standing to bring the action at the time the plaintiff files the complaint. Typically this requires the claimant … Continue Reading
By Porter Wright on In a decision that will warm the hearts of vendors everywhere, the Court of Appeals for Ohio’s Eighth Appellate District recently upheld the enforceability of personal guaranty language in a credit application. See Wholesale Builders Supply, Inc. v. Green-Source Development, L.L.C., et al., 2013-Ohio-5129. This decision also serves as a reminder to read before signing. … Continue Reading
By Porter Wright on On July 8, 2013, Ohio’s 5th District Court of Appeals issued an opinion that will be of interest to commercial equipment lessors in Ohio. This case concerns the commercial lease of a beverage caddy and the status of the “middle man” lessee when the vendor undergoes bankruptcy. Elms Country Club, the lessee (“Elms”), believed that … Continue Reading
By Porter Wright on This article is Part Five in a seven-part series on how to structure sales and what to do when your customer fails to pay. You can find previous articles in this series here: Structuring Sales to Ensure Payment; Signs of Trouble Before Payment Default; Default by a Customer; Knowledge is Power and What to Consider … Continue Reading
By Porter Wright on This article is Part Four in a seven-part series on how to structure sales and what to do when your customer fails to pay. You can find previous articles in this series here: Structuring Sales to Ensure Payment; Signs of Trouble Before Payment Default and Default by a Customer: Knowledge is Power. Please subscribe to … Continue Reading
By Porter Wright on This article is Part Three in a seven-part series on how to structure sales and what to do when your customer fails to pay. You can find previous article in this series here: Structuring Sales to Ensure Payment, Signs of Trouble Before Payment Default. Please subscribe to this blog by entering your email in the … Continue Reading
By Porter Wright on This article is Part Two in a seven-part series on how to structure sales and what to do when your customer fails to pay. You can find Part One of this series here: Structuring Sales to Ensure Payment. Please subscribe to this blog by entering your email in the box on the left, or check … Continue Reading
By Porter Wright on Substitute House Bill 48, an amendment to Ohio’s Limited Liability Company Act, discussed in our December 9, 2011 post, Charging Order Protections for Multi-Member and Single-Member LLCs (SMLLCs), has been passed by the Ohio General Assembly and signed into law by Governor Kasich. This act amends ORC 1705.19 to expressly provide that a charging order is … Continue Reading
By Porter Wright on In the course of their business, bankers routinely encounter single member limited liability companies ("SMLLCs"), entities commonly used in real estate and small businesses. Despite the prevalence of SMLLCs, there is a fundamental legal uncertainty as to whether the assets of an SMLLC share the same level of protection from its member’s creditors as is provided … Continue Reading
