COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73218 OHIO SAVINGS BANK : : JOURNAL ENTRY PLAINTIFF-APPELLEE/ : CROSS-APPELLANT : AND v. : : OPINION REPCO ELECTRONICS, INC., : ET AL. : : DEFENDANTS-APPELLANTS/ : CROSS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 13, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-339344. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee/ Roy E. Lachman, Esq. Cross-Appellant: Ohio Savings Plaza 1801 East 9th Street Second Floor Cleveland, OH 44114-3186 For Defendants-Appellants/ Roger W. VanDeusen, Esq. Cross-Appellees: Ari R. Epstein, Esq. Chattman, Gaines & Stern 1400 Renaissance Center 1350 Euclid Avenue Cleveland, OH 44115-1817 TIMOTHY E. McMONAGLE, J.: Defendant-appellant/cross-appellee, Alva T. Bonda ( appellant ), appeals the judgment of the Cuyahoga County Common Pleas Court rendered in favor of plaintiff-appellee/cross-appellant, Ohio -2- Savings Bank ( Ohio Savings ), for $200,000 on the latter's complaint confessing judgment in that amount. Ohio Savings, likewise, challenges the judgment to the extent that the trial court imposed a 10 percent post-judgment interest rate rather than what Ohio Savings claims is the higher amount allowed by the contract. Finding no error, we affirm. The record reflects that appellant had entered into a guaranty agreement with Ohio Savings, guarantying up to $200,000 the payment of a one million dollar demand promissory note entered into between Ohio Savings and Repco Electronics, Inc. ( Repco Electronics ). Michael Blumberg, likewise, entered into a guaranty agreement with Ohio Savings, guarantying the full note amount. Both the promissory note and the guaranty agreements contained clauses confessing judgment in the event that Repco Electronics defaulted on the note but none of the agreements, as well as the note itself, specifically stated any fixed rate of interest that would accrue in such a case. When Repco Electronics did default, Ohio Savings filed a complaint and answer confessing judgment against Repco Electronics, Michael Blumberg and appellant. The trial court entered judgment in accordance with the judgment entry prepared by counsel for Ohio Savings, but modified the interest rate from 13 percent to 10 percent. -3- Appellant1timely appeals and assigns the following error for our review: THAT A JUDGMENT FOR THE FULL AMOUNT OF A GUARANTY AGAINST DEFENDANT-APPELLANT ALVA BONDA, A LIMITED GUARANTOR OF A SECURED PROMISSORY NOTE, SHOULD NOT HAVE BEEN ENTERED AND CANNOT BE ENFORCED BECAUSE PLAINTIFF- APPELLEE OHIO SAVINGS BANK, THE SECURED CREDITOR, HAS TAKEN AND RETAINED POSSESSION OF VALUABLE COLLATERAL, AND MADE NO EFFORT TO SELL ANY OF THE COLLATERAL OR DETERMINE ITS VALUE. I. In his sole assignment of error, appellant challenges the propriety of the trial court's entry of judgment against him when Ohio Savings has reportedly taken possession of collateral that could be used to satisfy the judgment to which he confessed. Appellant argues that Ohio Savings cannot both retain the collateral and at the same time collect the full judgment amount. Appellant's argument is not well taken. The guaranty agreement contains the following warrant of attorney clause: [Appellant] hereby authorizes any attorney-at- law to appear in any court of record in the United States, at any time after the above obligation becomes due, either at its stated maturity or by declaration, and waive the issuing and service of process, and confess a judgment against the undersigned in favor of the holder hereof for the amount then appearing due, together with interest and costs of suit, and thereupon to release all 1While the judgment rendered in the trial court included judgments against Repco Electronics and Michael Blumberg, only appellant has appealed his liability under the guaranty agreement he executed. Ohio Savings, on the other hand, cross-appeals the interest amount interlineated by the trial court as against not only appellant, but Repco Electronics and Michael Blumberg as well. -4- errors and waive all right of appeal and stay of execution. The very purpose of such a provision is to permit the noteholder to obtain judgment without a trial of possible defenses which a signer of the note might assert. Fogg v. Friesner (1988), 55 Ohio App.3d 139, 140, citing Hadden v. Rumsey Products, Inc. (C.A. 2, 1952), 196 F.2d 92, 96, 64 Ohio Law Abs. 568, 572, 49 O.O. 19,21. By agreeing to the warrant of attorney clause in the guaranty agreement, appellant consented to the possibility of having a judgment obtained against him without the necessity of conducting a trial or the presentation of any potential defenses. As long as the creditor has complied with R.C. 2313.13, the statutory provision governing confession of judgment clauses, such clauses are enforceable. See Consumers United Ins. Co. v. Bustamante (Mar. 13, 1997), Cuyahoga App. No. 69305, unreported. Here, there is no argument that Ohio Savings has not complied with the statute's requirements. Thus, whether Ohio Savings has in its possession any collateral that may satisfy the debt in full or part is irrelevant to the issue of appellant's liability under the agreement.2See Milsteinv. Northeast Ohio Harness (1986), 30 Ohio App.3d 248, 249. 2We note that appellant supports his argument with documentary evidence that was not before the trial court. Appellant concedes as much due to the nature of a confession of judgment action. Nonetheless, these documents were not before the trial court and cannot be considered by this court on appeal. State v. Ishmail (1989), 54 Ohio St.2d 402. Facts not within the record will not be considered by a reviewing court and references to such may well represent an attempt to obscure an issue that is disingenuous at best. -5- Accordingly, appellant's sole assignment of error is not well taken and is overruled. II. On cross-appeal, Ohio Savings assigns the following as error: THE TRIAL COURT ERRED IN UNILATERALLY AND MANUALLY CHANGING THE STIPULATED, ADMITTED RATE OF INTEREST FROM 13% TO 10% ON THE JUDGMENT ENTRY THAT WAS AGREED AND SIGNED BY COUNSEL FOR ALL PARTIES, WHEN SUCH INTEREST RATE HAD BEEN THE SUBJECT OF A WRITTEN AGREEMENT BETWEEN THE PARTIES, AND WAS STATUTORILY AUTHORIZED UNDER O.R.C. S 1343.03(A). Ohio Savings contends that it was error for the trial court, by way of interlineation, to order interest in an amount less than that agreed upon by the terms of the agreements. Specifically, it argues that the court erroneously awarded interest at the rate of 10 percent when the contract stipulated an interest rate of 13 percent per annum. R.C. 1343.03(A) governs post-judgment interest and provides, in part: (A) *** when money becomes due and payable upon any *** note, or other instrument of writing, *** and upon all judgments of any *** judicial tribunal for the payment of money arising out of *** a contract, the creditor is entitled to interest at the rate of ten percent per annum, except that, if a written contract provides a different rate of interest in relation to the money that becomes due and payable, the creditor is entitled to interest at the rate provided in that contract. The statute provides an interest rate of 10 percent per annum, unless a written contract provides a different rate of interest. If such a contract provision exists, then the creditor is entitled -6- to interest at the rate provided in that contract. Thus, the 10 percent interest rate set forth above is simply a default rate to be charged in the event the parties do not otherwise contract. In order to be entitled to a rate different from the statutory rate of interest, however, two prerequisites must be satisfied: (1) there must be a written contract between the parties; and (2) the contract must provide a rate of interest with respect to money that becomes due and payable. P. & W.F., Inc. v. C.S.U. Pizza, Inc. (1993), 91 Ohio App.3d 724, 729; see, also, Yager Materials, Inc. v. Marietta Indus. Ent., Inc. (1996), 116 Ohio App.3d 233, 235-236; Hobart Bros. Co. v. Welding Supply Serv., Inc. (1985), 21 Ohio App.3d 142, 144. For there to be a written contract, however, there must be a writing to which both parties have assented. Id. Ohio Savings contends that appellant guaranteed the repayment of the note in accordance with a certain Credit Facility and Security Agreement executed between Ohio Savings and Repco Electronics. We find no evidence within the record of any Credit Facility and Security Agreement that would support entitlement to a higher rate of interest. The guaranty agreement, which guaranteed the promissory note executed by Repco Electronics, is the only document before this court which demonstrates appellant's assent. Nowhere in the guaranty agreement are the terms of any such security agreement evident, nor is any rate of interest specified in the document itself. The same is true of the promissory note. Thus, it was not error for the trial court to adjust the interest rate from 13 percent to 10 percent because Ohio -7- Savings failed to satisfy the requirements of R.C. 1343.03(A) entitling it to a higher rate of interest.3 Accordingly, Ohio Savings assignment of error on cross-appeal is not well taken and is overruled. Judgment affirmed. 3Nor can the answer to Ohio Savings complaint confessing judgment be construed to satisfy the written contract requirement of this statute. -8- It is ordered that appellant(s) and appellee(s) share 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 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. TIMOTHY E. McMONAGLE JUDGE KARPINSKI, P.J. and PATTON, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .