IN THE SUPREME COURT OF OHIO

Transcription

1 IN THE SUPREME COURT OF OHIO JPMCC 2004-CIBC10 7TH STREET OFFICE, * Case No.: LLC V. * On Appeal from the Hamilton County Plaintiff-Appellee Court of Appeals, First Appellate * District, Case Number C URS TOWER, LLC, et al. Defendant-Appellant. PLAINTIFF-APPELLEE JPMCC 2004-CIBC10 7TH STREET OFFICE LLC'S MEMORANDUM IN OPPOSITION TO DEFENDANT-APPELLANT URS TOWER LLC'S MEMORANDUM IN SUPPORT OF JURISDICTION William G. Deas ( ) Tami Hart Kirby ( ) Walter Reynolds ( ) Porter Wright Morris & Arthur LLP One South Main Street, Suite 1600 Dayton, Ohio Telephone: (937) Facsimile: (937) wdeas@porterwright.com tkirby@porterwright.com wreynolds@porterwright.com Attorneys for Plaintiff-Appellee JPMCC 2004 CIBCIO 7th Street Office, LLC W. Stuart Domette ( Earl K. Messer ( ) Nicholas J. Pieczonka ( ) Taft Stettinius & Hollister, LLP 425 Walnut Street, Suite 1800 Cincinnati, OH Telephone: (513) Facsimile: (513) messer@taftlaw.com npieczonka@taftlaw.com Attorneys for Defendant-Appellant URS Office Tower, LLC Lawrence C. Baron ( ) 230 E. 9th Street, Suite 700 Cincinnati, Ohio Attorney fon Defendant-Appellee Hamilton County Treasurer ^AY l,^ ^^K OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS 1. THIS CASE IS NOT ONE OF PUBLIC AND GREAT GENERAL INTEREST... 1 II. STATEMENT OF THE CASE... 2 A. PROCEDURAL BACKGROUND... 2 B. THE LOAN DOCUMENTS... 4 III. THERE IS ABSOLUTELY NO DIVERGENCE BETWEEN THE FIRST DISTRICT'S DECISION AND THE DECISIONS FROM THIS COURT OR THE TENTH DISTRICT... 6 IV. THE FIRST DISTRICT'S DECISION IS NOT INCONSISTENT WITH R.C V. THE OTHER JURISDICTIONAL AUTHORITY IS OF NO CONSEQUENCE VI. THERE IS NO NEW RULE OF LAW VII. CONCLUSION CERTIFICATE OF SERVICE ii

3 TABLE OF AUTHORITIES Cases Bank One, Columbus, N.A. v. O'Brien, 10th Dist. No. 91AP-166, 1991 Ohio App. LEXIS City Natl. Bank v. WBP Investments, LLC, 10th Dist. No. IOAP-1134, Ohio , 10 Columbia Sav. v. Mentor Inn Prop. Co., Ltd., l lth Dist. No. 93-L-007, 1993 Ohio App. LEXIS , 10 Cypress Sav. Assn. v. Richfield Assoc., 9th Dist. No , 1989 Ohio App. LEXIS , 8, Ohio St.3d 226, Dugan & Meyers, Constr. Co., Inc. v. Ohio Dept. of Adm. Servs., Ohio-1687, 864 N.E.2d , 9, 12 Fed. Land Bank oflouisville v. De Ran, 74 Ohio App. 365, 59 N.E.2d 54 (6th Dist. 1944) Ohio App.3d 490, 2009-Ohio-57, 905 N.E.2d Fifth Third Bank W. Ohio v. Carroll Bldg. Co, 1284 (2nd Dist.)... 9 Hamilton Ins. Serv., Inc. v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 714 N.E.2d 898 (1999)... 9 Harajli Mgmt. & Inv., Inc. v. A&MInv. Strategies, Inc., 167 Ohio App.3d 546, 2006-Ohio-3052, 855 N.E.2d 1262 (6th Dist.)... 3,7,8,9 Hoiles v. Watkins, 117 Ohio St. 165, 157 N.E. 557 (1927)... 6, 7 Hitntington Natl. Bank v. Prospect Park, LLC, 8th Dist. No , 2011-Ohio ,7,9, The Huntington Natl. Bank v. SSA Ltd., 5th Dist. No. 11CAE050048, 2011-Ohio Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio St.3d 657, 597 N.E.2d 1096 (1992) 8 INR Ent., Inc. v. Donnellson, 133 Ohio App.3d 787, 729 N.E.2d 1221 (1st Dist. 1999) JPMCC 2004-CIBCIO 7th Street Office, LLC v. URS Tower, LLC, 1 st Dist. No., , 2013 Ohio App. LEXIS , 4 McGinness v. US., I.R.S, 90 F.3d 143, 1996 FED App. 0223P (6th Cir. 1996) Manufacturers Life Ins. Co. v. Patterson, 51 Ohio App.3d 99, 554 N.E.2d 134 (8th Dist. 1988) , 9 Metropolitan Life Ins. Co. v. Triskett Illinois, Inc., 97 Ohio App.3d 228, 646 N.E.2d 528 (lst Dist , 9 ) iii

4 Metro. Sav. Bank v. Papadelis, 9th Dist. No M, 1995 Ohio App. LEXIS , 8, 9 Mfrs. Life Ins. Co. v. Patterson, 51 Ohio App.3d 99, 554 N.E.2d 134 (8th Dist.1988) Ohio St.2d 121, 364 N.E.2d 1369 (1977)... 6, 8, 12 Myers v. E. Ohio Gas Co., 110 Ohio St. 168, 143 N.E. 288 (1924)... 9 Ohio Crane Co. v. Hicks,... 4 Ry. Co. v. Jewett, 37 Ohio St. 649 (1882)... Saunders v. Mortensen, 101 Ohio St.3d 86, 2004-Ohio-25, 801 N.E.2d , 8, Ohio St.3d 69, 573 N.E.2d 62 (1991)... 6 State ex rel. Celebreeze v. Gibbs, 147 Ohio St. 468, 72 N.E.2d 63 (1947)... 9 Ullmann v. May, U.S. Bank Natl. Assn. v. Minnillo, 8th Dist. No , 2012-Ohio U.S. Bank, N.A. v. Gotham King Fee Owner, LLC, 8th Dist. No , 2013-Ohio-1983, Ohio App. LEXIS Whipps v. Ryan, 10th Dist. No. 08AP-838, 2009-Ohio Statutes R. C passim Rules Civ. R passim iv

5 I. THIS CASE IS NOT ONE OF PUBLIC AND GREAT GENERAL INTEREST Since this case does not concern a great general public interest, this Court should decline to exercise its discretionary jurisdiction over this matter. In particular, the First Appellate District merely enforced, in accordance with this Court's prior precedent, the clear terms of the parties' contractual agreement entitling the lender to the appointment of a receiver upon an event of default. These contractual terms entitling a lender to the appointment of a receiver are typically embodied in sophisticated, commercial transactions in which both parties are afforded an oppoitunity to be represented by legal counsel. Previously, this Court has held that a court shall enforce the terms of a contract if the written terms are clear and unambiguous. Here, the borrower contractually and unambiguously agreed that the lender shall be entitled to the appointment of a receiver upon an event of default. In this case, both the Trial Court and the First District recognized that the parties had contractually agreed that an available remedy to lender, upon an event of default, was the appointment of a receiver. This is a remedy that had been previously afforded to the lender upon an event of default by borrower. It would eviscerate Ohio contractual law if a court could utilize its discretion and refuse to enforce the parties' contractual terms without some evidence that one of the long recognized defenses to contractual enforcement such as duress, fraud, or unconsionability was present. During the course of this particular case, the borrower has failed to make any full monthly mortgage payments to the lender. While the property is allegedly being managed by an "experienced management company," lender has had very little input on leasing decisions and improvements or repairs to the property. The particular loan at issue is non-recourse, and it is undisputed that the value of the property is less than the obligations owed to the lender. In considering the appointment, the Trial Court conducted a half day evidentiary trial and considered whether a default had occurred under the terms of the loan documents 1

6 entitling the lender to the equitable remedy of the appointment of a receiver. The Trial Court considered substantial evidence on whether a receiver should be appointed over the property, and concluded to enforce the contractual terms between sophisticated, commercial parties. While the borrower compares the appointment of a receiver to injunctive relief under Civ. R. 65, the appointment of a receiver in this particular instance is governed by contractual law. There is no divergence or conflict between the case law from the First District, the Tenth District, or any appellate district in Ohio regarding the enforcement of these contractual provisions. Rather, the appellate districts in Ohio that have considered this particular issue have enforced these contractual provisions in accordance with the prior precedent from this Court. Furthermore, while the borrower has referenced legal authority from non-applicable jurisdictions, this authority is of no import to this Court in light of this Court's long-standing prior precedent regarding the enforcement of such contractual provisions as the one at issue in this matter. II. STATEMENT OF THE CASE A. PROCEDURAL BACKGROUND On February 17, 2011, Plaintiff-Appellee JPMCC CIB7th Street Office LLC ("Plaintiff," "Appellee," or "Lender") filed with the Trial Court an Amended Complaint for Foreclosure to Add Exhibits (the "Amended Complaint"). (T.d. 8.) On February 17, 2011, Lender also filed a Motion for the Appointment of Receiver (the "Motion") and requested that Paul Plattner,'CPM be appointed as receiver ("Receiver") over the property at issue in this matter (the "Property"). (T.d. 9.) On March 22, 2011, Magistrate Judge Bachman conducted an oral hearing, and issued a decision denying the Motion. (T.d. 19, 28.) Thereafter, Judge Martin conducted an evidentiary hearing, and issued his Appointment Order determining that a Receiver should be appointed over the Property, and specifically stated that, "Plaintiff shall be entitled to the appointment of a 2

7 receiver over the property." (T.d. 38.) The Magistrate Judge thereafter held a hearing to address the Appointment Order, and approved an order for Judge Martin's signature delineating the powers and duties of the Receiver (the "Receiver Powers Order"). Judge Martin approved and signed the Receiver Powers Order, which was subsequently appealed by URS to the First District. On March 8, 2013, the First District issued its decision ( the "Decision") holding that the Trial Court properly enforced the contractual agreement between the parties affording Lender with the equitable remedy of the appointment of a receiver upon an event of default by URS under the terms of the loan documents between the parties. JPMCC 2004-CIBCIO 7th Street Office, LLC v. URS Tower, LLC, 1st Dist. No , 2013 Ohio App. LEXIS 744. In reaching its decision, the First District stated, in pertinent part, as follows: Despite this broad language, however, Ohio courts have recognized in other foreclosure actions that the requirements of R.C , including those read into the statute by the judiciary, may be effectively waived. For instance, the Sixth Appellate District affirmed the appointment of a receiver even though the trial court had refused to hear evidence concerning the value of the encumbered property and other "equitable defenses" because the mortgage "allow[ed] the trial court, in the event of default, to appoint a receiver 'upon application of the Mortgagee or at any time thereafter, * * * without notice to the Mortgagor * * * and without regard to the solvency or insolvency at the time of such application of any Person then liable for the payment of any of the Secured Obligations, [and] without regard to the then value of the Premises * **."' Harajli Mgnzt. & Inv., Inc. v. A&M Inv. Strategies, Inc., 167 Ohio App.3d 546, 2006 Ohio 3052, 855 N.E.2d 1262, 57 (6th Dist.). The appeals court held that because an event of default had occurred, the parties had "waived the right to a determination of the value of the property." Id. Similarly, the Ninth Appellate District affirmed the appointment of a receiver because the mortgagor had agreed in the mortgage that upon the commencement of any action to foreclose this mortgage or any other lien upon said premises, whether instituted by [the mortgagee] or any other party, or at any other time during the pendency of such action, [the mortgagee] shall have the immediate right to the appointment of a receiver, and. the Court may at once, and without notice to [the mortgagor] 3

8 Id. at * * or any other party claiming under him, appoint a receiver ***. Metropolitan Sav. Bank v. Papadelis, 9th Dist. No M, 1995 Ohio App. LEXIS 4038, *3, *8 (Sept. 13, 1995). The appellate court recognized that because R.C is a procedural, as opposed to a substantive, statute, "if the parties to a mortgage contracted to allow the mortgagee to foreclose upon the occasion of the mortgagor's default without regard to the ability of the property to discharge the mortgage debt, then such contractual agreement was enforceable." Id., 1995 Ohio App. LEXIS 4038 at *8, citing Cypress Sav. Assn. v. Richfield Assocs., 9th Dist. No , 1989 Ohio App. LEXIS 785 (Mar. 8, 1989). See also U.S. Bank Natl. Assn. v. Minnillo, 8th Dist. No , 2012 Ohio 5188, 20 (holding that the trial court did not abuse its discretion in appointing a receiver because the borrowers had consented to such appointment upon default under the note); Huntington Natl. Bank v. Prospect Park, LLC, 8th Dist. No , 2011 Ohio 5391, 13 ("Here, plaintiffs presented evidence that Prospect Park had consented to the appointment of a receiver upon the incidence of default. Under such circumstances, a trial court does not abuse its discretion in appointing a receiver."). We, too, have recognized that parties may contractually waive the preappointment notice requirement that the Ohio Supreme Court recognized in Ry. Co. v. Jewett, 37 Ohio St. 649, (1882), paragraph two of the syllabus. Metropolitan Life Ins. Co. v. Triskett Ill., Inc., 97 Ohio App.3d 228, 236, 646 N.E.2d 528 (1 st Dist.1994) ("Although courts have imposed a requirement that notice be given prior to the appointment of a receiver pursuant to R.C (B), the pre-appointment notice requirement was not, in this instance, transgressed when such notice may be and was waived by Triskett under the mortgage."), citing Mfrs. Life Ins. Co. v. Patterson, 51 Ohio App.3d 99, 554 N.E.2d 1.34 (8th Dist.1988). B. THE LOAN DOCUMENTS Lender commenced this action in order to foreclose on certain collateral securing commercial real estate obligations owed by URS to Lender. Pursuant to the terms of the governing loan documents and Ohio law, Lender sought the appointment of the Receiver over the Property. The Property consists of a certain volume of air above a horizontal plane (the "Air Space"), together with the improvements constructed therein and all of the easements, rights, privileges, franchises, tenements, hereditaments and appurtenances in any way appertaining to the Air Space, located at 36 East Seventh Street, Cincinnati, Hamilton County, Ohio 44202, DAYTON/648336v.I 4

9 Parcel Numbers , , , commonly known as part of the URS Office Tower. Lender is the owner and holder of the loan documents at issue in this matter. (T.d. 5-12, ) On May 1, 2010, URS defaulted under the terms of certain promissory notes, by among other things, failing to make payments when and as due under the terms of the promissory notes. (Id. at 15:6-20.) Lender has, in accordance with the provisions of the promissory notes, accelerated the notes and declared the entire indebtedness due and payable. (Id. at 16:16-10.) The amount due on the promissory notes exceeds $19,000, (Id.) Because of URS' default on the promissory notes, URS defaulted under the terms of Lender's mortgage on the Property (the "Mortgage"). Under Section 3.1(d) of the Mortgage, URS irrevocably consented to the appointment of a receiver, without notice, and without regard to the value of the collateral. (T.d. 8 at Ex. C.) Specifically, Section 3.1(d) of the Mortgage states, in pertinent part, that after the occurrence of a default, Lender may, among other things: ARTICLE III REM EDIES 3.1(d) Appointment of Receiver. Upon, or at any time prior to or after, initiating the exercise of any power of sale, instituting any judicial foreclosure..., make application to a court of competent jurisdiction for appointment of a receiver for all or any part of the Property, as a matter of right and without notice to Borrower... and Borrower does hereby strict irrevocably consent to such appointment, waives any and all notices of and defense to such appointment and agrees not to oppose any application therefor by Lender... (Id. at 3.1(d) (emphasis added).) Because of the default by URS, Lender moved for the appointment of a Receiver over the Property. Thereafter, the Trial Court determined that Lender was entitled to the appointment of a Receiver based upon the contractual consent to the appointment afforded to Lender upon URS' 5

10 default under the terms of the loan documents. (T.d. 38.) In its Decision, the First District upheld the Trial Court's decision determining that Lender was entitled to the appointment of the Receiver over the Property. III. THERE IS ABSOLUTELY NO DIVERGENCE BETWEEN THE FIRST DISTRICT'S DECISION AND THE DECISIONS FROM THIS COURT OR THE TENTH DISTRICT There is no divergence between the First District's Decision and the prior decisions from either this Court or the Tenth District. The existing legal authority referenced by URS from this Court do not deal with parties that have contractually agreed to the appointment of a receiver upon an event of default by the borrower. Hoiles v. Watkins, 117 Ohio St. 165, 174, 157 N.E. 557 (1927) (reversing the lower court and holding that the appointment of a receiver to act in the interests of the minority shareholders as against the alleged fraudulent interests of the majority shareholder was not justified); State ex rel. Celebreeze v. Gibbs, 60 Ohio St.3d 69, 73, 573 N.E.2d 62 (1991) (concerning the appointment of a receiver to collect money from tenants). As an initial matter, the Trial Court considered more than the contractual consent by URS in appointing the Receiver. The Trial Court conducted a half day evidentiary hearing, in which evidence was taken by URS as to whether an event of default had occurred. Since the Trial Court could only have the Receiver appointed upon an event of default, the Trial Court had to find that an event of default had occurred by URS prior to enforcing the contractual consent between the parties. Furthermore, there is no evidence in the record that the Trial Court did not take into account all the circumstances and facts that were presented at the evidentiary hearing. Rather, the Trial Coart and First District, following the prior precedent of this Court, held that a court should enforce the terms of a contract if the written terms in the contract are clear and unambiguous. Myers v. E. Ohio Gas Co., 51 Ohio St.2d 121, 125, 364 N.E.2d 1369 (1977); Saunders v. Mortensen, 101 Ohio St.3d 86, 2004-Ohio-25, 801 N.E.2d

11 Furthermore, this Court has long recognized the a receivership is an equitable remedy afforded under Ohio law. Hoiles, 117 Ohio St. at 173. It is an act of a trial court that is ancillary for the establishment of some right. Id. URS has attempted to assert that the equitable remedy of a receivership is identical to a permanent injunction. However, the issuance of temporary restraining orders and preliminary injunctions are both governed by Civ. R. 65, and impose certain procedural requirements that must be met before a court will impose injunctive relief. However, URS has failed to provide any legal authority supporting its position that a plaintiff should have the additional burden of having to meet the requirements of Civ. R. 65 in order to obtain the equitable remedy of the appointment of a receiver. Rather, appellate districts have followed the precedent of this Court and enforced the contractual agreement between the parties. While URS has argued that there is a divergences in the law of the Tenth District and First District, this appears to be a disingenuous argument to this Court in order to create an impression that there is a conflict among the appellate districts on this particular issue. Rather, in WBP Inv., LLC, 10th Dist. No. loap-1134, 2011-Ohio-6129 at 9, the Tenth District specifically stated as follows: Appellants argue that, despite the presence of these clauses in the mortgage, as a matter of law, they could not consent to the appointment of a receiver. We reject this contention in accordance with this court's prior decisions and those of other appellate courts in Ohio. In Bank One, Columbus, N.A. v. O'Brien (Dec. 31, 1991), 10th Dist. No. 91AP-166, 1991 Ohio App. LEXIS 6391, we noted that "a receivership can be awarded upon the terms of a contractual agreement. " Similarly, in Whipps v. Ryan, 10th Dist. No. 08AP-838, 2009-Ohio-2228, we upheld a trial court's appointment of a receiver, finding that the appointment was authorized by statute and that the borrower had consented to the appoinc`ment of a receiver under a mortgage agreement. Id. at 21, 24. This is consistent with decisions from other appellate courts in Ohio, which have concluded that the requirements of R.C may be waived by contract. See, e.g., Huntington Natl. Bank v. Prospect Park, LLC, 8th Dist. No, , 2011 Ohio 5391, 11; Harajli Mgmt. & Inv., Inc. v. A&M Invest. Strategies, Inc., 167 Ohio App. 3d 546, 2006 Ohio DAYTON/648336v.7 7

12 3052, 855 N.E.2d 1262;.Metro. Sav. Bank v. Papadelis (Sept. 13, 1995), 9th Dist. No M, 1995 Ohio App. LEXIS 4038; Columbia Sav. v. Mentor Inn Prop. Co., Ltd. (Sept. 30, 1993), 11th Dist. No. 93-L-007, 1993 Ohio App. LEXIS 4769; Cypress Sav. Assn. v. Richfield Assoc. (Mar. 8, 1989), 9th Dist. No , Ohio App. LEXIS 785. Appellants also argue that the relevant clauses in the mortgage and loan documents only authorized appellee to apply for a receiver and did not entitle it to a receiver as a matter of right. However, it is clear that the clauses not only authorized appellee to apply for a receiver but also that appellants consented to such an appointment. Moreover, appellee did not rely solely on this contractual authority but also established the required statutory elements under R.C (B). All of the appellate districts that have looked. at this particular issue, including without limitation the First District, the Tenth District, the Eighth District, the Ninth District, the Eleventh District, and the Second District, have all enforced a borrower's contractual consent to a receiver upon an event of default. Thus, the First District's Decision comports with the prior precedent of this Court regarding the enforcement of clear and unambiguous contractual provisions between private parties and the other appellate districts that have considered this particular issue. IV. THE FIRST DISTRICT'S DECISION IS NOT INCONSISTENT WITH R.C The First District's Decision is not inconsistent with R.C Courts have recognized R.C is a procedural statute that may be waived by clear and unambiguous contractual terms. Papadelis, 9th Dist. No M, 1995 Ohio App. LEXIS 4038 at *8. Specifically, a court should enforce the terms of a contract if the written language is clear and unambiguous. Myers, 51 Ohio St.2d at 125 ; Hybud Equip. Corp. v. Sphere Drake Ins. Co., Ltd., 64 Ohio St.3d 657, 665, 597 N.E.2d 1096 (1992); Sa.unders, 101 Ohio St.3d 86, 2004-Ohio-25, 801 N.E.2d 452 at 9. "[W]here a contract is plain and unambiguous, it does not become ambiguous by reason of the fact that in its operation it will work a hardship upon one of the parties thereto and a corresponding advantage to the other***." Dugan & Meyers Constr. Co., 8

13 Inc. v. Ohio Dept. ofadm. Servs., 113 Ohio St.3d 226, 2007-Ohio-1687, 864 N.E.2d 68, at 29; Ohio Crane Co. v. Hicks, 110 Ohio St. 168, 172, 143 N.E. 288 (1924). "[U]nless there is fraud or other unlawfulness involved, courts are powerless to save a competent person from the effects of his own voluntary agreement." Id. (citing Ullmann v. May, 147 Ohio St. 468, 476, 72 N.E.2d 63 (1947); Fifth Third Bank W. Ohio v. Carroll Bldg. Co, 180 Ohio App.3d 490, 2009-Ohio-57, at 14, 905 N.E.2d 1284 (2nd Dist. 2009). Appellate districts have upheld provisions in a mortgage agreement as valid and enforceable whereby the mortgagor waives its entitlement to challenge the appointment of a receiver for the mortgaged property. See Triskett Illinois, Inc., 97 Ohio App.3d 228 at 236, 646 N.E.2d 528; Patterson, 51 Ohio App.3d at 101, 554 N.E.2d 134. Moreover, where a contract provides for the right to a receiver, the procedural requirements of R.C et seq. are contractually waived. See Triskett Illinois, Inc., 97 Ohio App.3d at 236; Manufacturers Life, 51 Ohio App.3d at (determining that a provision in the mortgage whereby the mortgagor consented to the appointment of a receiver for the mortgaged property was valid and enforceable); Harajli Mgt. & Invest., Inc. v. A&M Invest. Strategies, Inc., 167 Ohio App.3d 546, 2006-Ohio-3052, 855 N.E.2d 1262 at 57 (6th Dist.); Fed. Land Bank of Louisville v. De Ran, 74 Ohio App. 365, 59 N.E.2d 54 (6th Dist. 1944); Hamilton Ins. Serv., Inc. v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 273, 714 N.E.2d 898 (1999) (providing that contracts should be construed in a manner to give effect to the intentions of the parties); Metropolitan Sav. Bank v. Papadelis, 9th Dist. No M, 1995 WL , at *8 (Sept. 13, 1995); The Huntington Bank LLC v. Prospect Park LLC, 8th Dist. No , Ohio-3261, 11 (July 19, 2012); Columbia Sav. v. Mentor Inn Prop. Co., Ltd., 11th Dist. No. 93-L-007 (Sept. 30, 1993); Cypress Sav. Assn., 9th Dist. No ; WBP Investments, LLC, 9

14 10th Dist. No. loap-1134, 2011-Ohio Further, several courts have enforced clauses in mortgages consenting to the appointment of a receiver. WBP Investments, 2011-Ohio-6129 at 12; The Huntington Natl. Bank v. SSA Ltd., 5th Dist. No. 11CAE050048, 2011-Ohio-5264, (Oct. 12, 2011) (providing that, "this court upheld a similar provision in a mortgage agreement and determined R.C , the statute governing the appointment of a receiver, was inapplicable due to the parties' express agreement in the mortgage for the appointment of a receiver in the event of a default"); U.S. Bank, N.A. v. Gotham King Fee Owner, LLC, 8th Dist. No , 2013-Ohio-1983, 2013 Ohio App. LEXIS In this case, the loan documents clearly and unambiguously entitle Lender, upon a default, to the appointment of a Receiver without notice. (T.d. 9.) Specifically, Section 3.1(d) of the mortgage provides that, upon default, Lender shall apply for the appointment of a Receiver and, "Borrower does hereby irrevocably consent to such appointment, waives any and all notices of and defenses to such appointment and agrees not to oppose any application thereof by Lender..." (T.d. 8 (emphasis added).) Consequently, the Trial Court and First District correctly enforced this contractual agreement between the parties. Additionally, although the Trial Court did not recite the evidence upon which it relied upon in reaching its conclusion, Lender provided an abundance of evidence before the Trial Court that the grounds set forth in R.C (B) also entitled Lender to the appointment of the Receiver over the Property. R.C (B) provides that a receiver may be appointed: (B) In an action by a mortgagee, for the foreclosure of his mortgage and sale of the mortgaged property, when it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been performed, and the property is probably insufficient to discharge the mortgage debt. R.C (B) (emphasis added). 10

15 Lender provided evidence that URS is in default under the terms of the loan documents, by among other items, failing to pay its monetary obligations when and as due. Lender also provided evidence that the indebtedness exceeds $19 million dollars. URS has not contested that it is in monetary default under the terms of the loan documents, or that the value of the Property is less than the indebtedness. (T.p. 88.) Further, Lender provided an expert, who testified that, "[m]y value of opinion, as stated on page 13, on an as is basis is $9 million." (T.p. 54.) Consequently, Lender also satisfied the requirements under R.C (B) for the appointment of a Receiver. V. THE OTHER JURISDICTIONAL AUTHORITY IS OF NO CONSEQUENCE Although URS has included references to various federal cases and cases from other states' jurisdictions addressing receiverships, those cases have absolutely no bearing on this matter. The appellate districts across Ohio have held that the requirements of R.C can be contractually waived by a mortgagor. URS has unambiguously and clearly consented to the appointment of a Receiver and waived not only its ability to oppose the appointment of a Receiver, but also the procedural requirements of R.C The long-standing jurisprudence of this Court is to enforce the contractual terms between the parties such as the contractual terms at issue in this matter. Consequently, this non-precedential authority has no import on this case. VI. THERE IS NO NEW RULE OF LAW This matter does not concern a matter of great public concern, but rather only addresses the enforcement of contractual terms between private parties to a contract. This Court has long recognized the enforcement of clear, unambiguous terms between the parties. Furthermore, this Court and Ohio statutory law have long recognized the equitable remedy of a receiver. URS has asserted that to enforce such contractual consents would cause a court to have to "manage the 11 DAYTON/648336v. I

16 business property through a court-appointed officer." In a receivership, the court and the receiver, who is an agent for the property, is the administrator of the assets of the receivership estate for the benefit of all interested persons. INR Ent., Inc. v. Donnellson, 133 Ohio App.3d 787, 729 N.E.2d 1221 (1st Dist. 1999). A trial court defines the receiver's powers and therefore controls his actions. McGinness v. U.S., I.R.S., 90 F.3d 143, 1996 FED App. 0223P (6th Cir. 1996). This is not a burden for a trial court, but rather is an equitable remedy that is specifically provided by long-standing statutory authority and contract law. Here, URS specifically waived the right to the appointment of the Receiver. While URS has asserted that it is magnanimous by utilizing the cash flow from the Property to pay the real estate taxes, to pay insurance on the Property, and not receive a distribution from the net income from the Property, to engage in this conduct would trigger full recourse for the principal of URS under the provisions of the nonrecourse guaranty. URS has failed to make one full monthly payment to Lender during this pending foreclosure action. Also, if this Court were to accept URS' argument, it would eviscerate the long-standing precedent recognizing parties' contractual provisions in commercial, sophisticated contracts. URS has taken the position that -contractual agreement between the parties is meaningless and should not be enforced by trial courts. This is contrary to the long-standing jurisprudence of this Court that enforces the terms of a contract if the written language is clear and unambiguous. Myers, 51 Ohio St.2d 121 at 125; Saunders, 101 Ohio St.3d 86, 2004-Ohio-25, 801 N.E.2d 452; Dugan & Meyers, Constr. Co., Inc., 113 Ohio St.3d 226, 2007-Ohio-1687, 864 N.E.2d 68, 29. In light of Ohio's long-standing jurisprudence on this issue, and the private nature of the parties, this case does not concern a matter of great public interest. VII. CONCLUSION Based upon the foregoing, Appellee JPMCC CIB7th Street Office LLC respectfully 12

17 requests that this Court deny jurisdiction since it is not procedurally proper and does not involve a matter of public and great general importance. Respectfully submitted, PORT WRIGHT MORRIS & ARTHUR LLP William G. Deas ( ) Tami Hart Kirby ( ) Walter Reynolds ( ) Porter Wright Morris & Arthur LLP One South Main Street, Suite 1600 Dayton, Ohio Telephone: (937) Facsimile: (937) wdeas@porterwright.com tkirby@porterwright.com wreynolds@porterwright.com Attorneysfor Plaintiff-Appellee JPMCC 2004 CIBC10 7th Street Office, LLC 13

18 CERTIFICATE OF SERVICE The undersigned does hereby certify that a true copy of the foregoing was served via regular U.S. Mail, postage prepaid, to the following on the date of filing hereof: Lawrence C. Baron, Esq. Assistant Prosecuting Attorney 230 East 9th Street, Suite 700 Cincinnati, Ohio Attorney for Defendant the Hamilton County Treasurer Earl K. Messer, Esq. Taft Stettinius & Hollister 425 Walnut Street, Suite 1800 Cincinnati, Ohio Attorneyfor Defendant URS Tower LLC One of the Attorneysfor Plaintiff-Appe JPMCC 2004-CIBCIO 7th Street Office, LLC 14