Procaccino v. Elberon Bldg. & Loan Ass'n

• Decision Date: 18 September 1968
• Docket Number: No. A,A
• Citation: 16 Ohio Misc. 182,241 N.E.2d 758
• Court: Ohio Court of Common Pleas
• Parties: , 45 O.O.2d 146 PROCACCINO v. The ELBERON BLDG. & LOAN ASSN. 214200.

Page 182

16 Ohio Misc. 182

241 N.E.2d 758, 45 O.O.2d 146

PROCACCINO v. The ELBERON BLDG. & LOAN ASSN.

No. A 214200.

Court of Common Pleas of Ohio, Hamilton County.

Sept. 18, 1968.

Donald Guy Montfort, Cincinnati, for plaintiff.

Tischbein & McDaniel, Cincinnati, for defendant.

WOOD, Judge.

This matter came before the court on summary judgment filed by both the plaintiff and defendant. The facts are not in dispute.

Briefly, the pertinent facts of this case are that The Elberon Bldg. & Loan Assn., hereinafter referred to as the defendant, entered into a mortgage agreement with one Robert and Ruby Lay on certain property which the Lays had purchased from the plaintiff, John Procaccino, now deceased. Reviver action was filed and for simplicity sake the estate of John Procaccino will hereinafter be referred to as the plaintiff.

On the day of purchase, July 7, 1961, plaintiff signed a letter of guaranty at defendant's request, which guaranty was drawn by the defendant, whereby plaintiff deposited with the defendant savings account No. 14097, the sum of $2400.00, which with all the accrued interest thereon was to be used to reduce the interest and principal of the mortgage to $7100.00. In the event of default by Robert and Ruby Lay, the guaranty provided in part:

'In the event * * * Lay shall not pay * * * $2400.00 and all accrued interest due on said mortgage loan and it is necessary to foreclose the said mortgage loan or otherwise dispose of said property, I agree and hereby unconditionally authorize * * * to deduct from my savings account * * *.' And signed by John Procaccino.

On June 1, 1964, defendant filed a foreclosure suit against the principal obligor, Lay. On June 5, 1964, the defendant received a warranty deed to the property from the obligors, Robert and Ruby Lay. On June 25, 1964, the defendant closed the account of the plaintiff and removed the funds. On September 14, 1964, the foreclosure suit against the Lays was dismissed by the defendant. On December 4, 1964, the defendant sold the said property to a third party. All of these transactions occurred without the knowledge of the plaintiff.

We can resolve the first part of the argument by simply stating that the foreclosure was never consummated. The mere filing of a suit does not constitute a foreclosure, and the facts are undisputed that the defendant removed said funds while the foreclosure suit was still pending and subsequently dismissed said suit.

The next question for the court to consider is the statement: ...