COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 61033, 61034, 61035 TERRA VISTA ESTATES, INC. : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION THOMAS D. MORIARTY, ET AL. : : Defendants-appellants : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 15, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case Nos. CV-115658, CV-182956, CV-185336 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: DANIEL J. RYAN, ESQ. JAMES C. DUKAT, ESQ. 2000 Standard Building P.O. Box 603 Cleveland, Ohio 44113 Canal Fulton, Ohio 44614 LEMUEL R. GREEN, ESQ. Suite 420 Ameritrust Building 237 West Tuscarawas Ave. Canton, Ohio 44702 - 1 - DYKE, J.: Appellant Valley Enterprises, Inc. ("Valley") appeals from the decision of the trial court to uphold a lien held by appellee Terra Vista Estates, Inc. ("Terra Vista") against property owned by Valley. Terra Vista's lien arose from a dispute with Thomas Moriarty. Terra Vista obtained a judgment against Moriarty and placed a judgment lien on what was once Moriarty's property. Moriarty transferred the property to his company, TDH, Inc., the same day judgment was found in favor of Terra Vista. Terra Vista's judgment lien was recorded two days after the transfer. The trial court found that Moriarty had fraudulently transferred the property to his company and that Terra Vista's lien was valid. Valley is a subsequent owner of the property. Valley received the property from Hess Investment allegedly as security for a loan made to Hess. Hess had received the property from TDH, Inc. Mr. Hess is the "H" in TDH, Inc. As to Valley, the trial court held that the judgment lien on its property was valid. The court held that each of the transfers of the property were made subject to Terra Vista's lien. The court found that Valley "had knowledge or should have had knowledge" of the lien prior to the transfer of the property. Appellant asserts one assignment of error. I - 2 - THE CUYAHOGA COUNTY COURT OF COMMON PLEAS ERRED IN GRANTING PLAINTIFF-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Appellant makes two arguments to support this assignment of error. First, Valley argues that the decision was based on a mistake of fact in that the trial court mistakenly found that the judgment lien was recorded on June 21, 1988 when it was actually recorded on June 23, 1988. Valley's second argument is that summary judgment is inappropriate because "numerous factual issues ... remain undecided." Appellant's first argument lacks merit. The trial court correctly found that the judgment was recorded on June 21, 1988. The judgment lien was recorded on June 23, 1988, but the court does not refer to the lien, only to the judgment. The court found that Moriarty transferred the property to avoid Terra Vista's lien and that TDH, Inc. knew or should have known of the lien. It is irrelevant in determining the validity of the lien that the lien was unrecorded at the point of transfer to TDH, Inc. because the transfer was fraudulent and TDH, Inc. was not a bona fide purchaser without notice of the lien. R.C. 2329.02 requires that judgment liens be recorded with the clerk of the court of common pleas before becoming effective. A decision of the Hamilton County Court of Appeals supports the lower court in this case in finding that a fraudulent conveyance is an exception to the filing requirement under R.C. 2329.02. Where a judgment lien is filed, pursuant to R.C. 2329.02, on - 3 - pro- perty the actual possession of and the deed to which have previously been conveyed, such filing is not effective to defeat the interests of the grantee even though the deed has not been recorded, unless the con-veyance is made to defraud the creditor. University Assoc. v. Sterling Finance Co. (1973), 37 Ohio App.2d 17, at paragraph one of the syllabus. The trial court did not abuse its discretion in finding that the transfer from Moriarty to TDH, Inc. was fraudulent and that Terra Vista's lien was valid against the property. To determine the validity of the lien against Valley as the present owner of the property the issue of Valley's status as a bona fide purchaser is raised. If Valley is not a bona fide purchaser without notice of the lien, the lien is valid against Valley. If Valley is a bona fide purchaser without notice of the lien at the time it received the property, the lien would not be valid and Valley would take the property free of the lien. Terra Vista argued in its motion for summary judgment that because the judgment lien was recorded on June 23, 1988, Valley would have taken the property with notice of the lien in March of 1989. This is not necessarily true. Because the lien was recorded subsequent to the transfer of the property, a title search would not reveal the recorded lien. The judgment lien would fall outside the chain of title. Valley asserts that its title search, done by Chicago Title prior to the transfer of the - 4 - property from Hess to Valley, did not reveal the existence of the lien. This fact is consistent with the way the transfer was made prior to the lien being recorded, regardless of the transfer's fraudulent nature. Terra Vista can not argue that the simple recording of the lien put Valley on constructive notice if the record is outside the chain of title. See, Columbia Gas Transm. Corp. v. Bennett (1990), 71 Ohio App.3d 307. Appellee Terra Vista also argued in its motion for summary judgment that Valley was not a bona fide purchaser of the property and for this reason the lien is valid against its property. Appellee argued that Valley failed to prove its bona fide purchaser status by proving that it paid valuable consideration for the property. The facts supporting Terra Vista's argument are not in dispute. Hess was in debt to Valley from a prior loan. Security for that loan was given in the form of a lease assignment. The parties dispute the characterization of the subsequent transfer of real estate in relation to the prior loan transaction. Valley asserts that the transfer of the property constituted additional security for its loan to Hess, which in all likelihood would not be paid due to Hess's impending bankruptcy. Terra Vista states that no consideration was paid for the property because the assignment of the lease, in an amount equal to the loan, was already accepted as security for the loan to Hess. - 5 - The law in Ohio resolves this dispute in favor of Terra Vista. A mortgage given to secure a pre-existing debt without other consideration does not take priority over a prior lien of which the sub-sequent mortgagee had no notice. Lewis v. Anderson 20 Ohio St. 281. Cambridge Production Credit Assoc. v. Patrick, et al. (1942), 140 Ohio St. 521, 530. Although the present case deals with real estate and not a mortgage, the situation is analogous and the rule applies. Valley Enterprises cannot claim to have given value for the property by accepting it as additional security on a pre-existing loan. Civ. R. 56(C) sets forth the rule governing a court's authority to a party's summary judgment motion: Summary judgment shall be rendered forthwith if the plead- ing, depositions, answers to interrogatories, written admis- sions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. *** A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to - 6 - have the evidence or stipulation construed most strongly in his favor. It appears from the evidence on the issue of value paid for the property that reasonable minds could come to but one conclu- sion. The issue of value in this case was an issue of law, not fact. Therefore, no genuine issue of fact remains as to whether Valley is a bona fide purchaser for value. Summary judgment is appropriate when no factual issue of material importance remains in dispute. Appellant's assignment of error is overruled. Judgment of the trial court is affirmed. - 7 - It is ordered that appellee recover of appellants costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J., AND KRUPANSKY, J., CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .