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HomeMy WebLinkAbout2017-3311S&T BANK, SUCCESSOR BY : IN THE COURT OF COMMON PLEAS OF MERGER TO INTEGRITY : CUMBERLAND COUNTY, PENNSYLVANIA BANK, ; Plaintiff : CIVIL ACTION (CONFESSION OF JUDGMENT) V. ROBERT M. MUIVIlVIA,11, Defendant : NO. 2017-03 3 11 CIVIL TERM IN RE: DEFENDANT'S PETITION TO STRIKE OR OPEN JUDGMENT BEFORE OLER, S.J. ORDER OF COURT AND NOW, this 215t day of July, 2017, upon consideration of Defendant's Petition To Strike, or in the Alternative, To Open Plaintiff's Confessed Judgment, following oral argument held on July S, 2017, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. The petition is denied insofar as it seeks an order striking the judgment; 2. The court having previously deferred action on the petition insofar as it seeks an order opening the judgment, pending disposition of the request to strike, a RULE is issued upon Plaintiff to show cause why the judgment should not be opened; a. The petition, insofar as it seeks to open the judgment, shall be decided under Pa. R.C.P. 206.7; b. An answer to the petition having been previously filed by Plaintiff, depositions shall be completed within 45 days of the date of this order; c. Argument shall be held on Thursday, October 5, 2017, at 1:30 p.m., in Courtroom No. 5, Cumbe �*A�XSHN--H County Courthouse, Carlisle, Pennsylvania; and _ �+ j ;r�i d. Briefs shall be submitted to the court at least seven days prior to argument. BY THE COURT, J. esley Ole , r., S.J. Brian A Kile, Esq. Grenen & Birsic, P.C. 9'hFloor One Gateway Center Pittsburgh, PA 15222 Attorney for Plaintiff Craig A. Diehl, Esq. 3464 Trindle Road Camp Hill, PA 17011 Attorney for Defendant 4 S&T BANK, SUCCESSOR BY MERGER TO INTEGRITY BANK, Plaintiff V. ROBERT M. MUMMA,11, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION (CONFESSION OF JUDGMENT) NO. 2017-03311 CIVIL TERM IN RE: DEFENDANT'S PETITION TO STRIKE OR OPEN JUDGMENT BEFORE OLER, S.J. OPINION and ORDER. OF COURT OLER, S.J., July 21, 2017. In this confessed judgment case, Defendant has filed a petition to strike or open a money judgment confessed against him as a guarantor of a corporate debt. In response to the petition, the court issued a rule to show cause upon Plaintiff,' deferred further action on the request to open pending disposition of the request to strike,z and held oral argument on the latter issue on July 5, 2017. For the reasons stated in this opinion, Defendant's petition will be denied insofar as it seeks to have the judgment stricken. STATEMENT OF FACTS ON FACE OF RECORD The factual record in this case, on its face, may be summarized as follows: Plaintiff is S&T Bank, successor by merger to Integrity Bank, a commercial bank having offices in Indiana County, Pennsylvania.3 Defendant is Robert M. Mumma, II, an adult individual4 who executed a $250,000 one-year promissory note in 2005 on behalf of 'See Pa. R.C.P. 2959(h). Z See Pa. R.C.P. 2959(e). 3 Plaintiff's Complaint in Confession of Judgment, �1, filed March 15, 2017, 4 Plaintiff's Complaint in Confession of Judgment, ¶2, filed March 15, 2017. 1 Mann Realty Associates, Inc., in favor of Plaintiff's predecessor in interest,5 and secured the corporate obligation by a personal guaranty.6 Events of default under the promissory note included the following: Payment Default. Borrower fails to make any payment when due under this Note Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or in any of the related documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower, which default continues for 30 days after written note [sic] from Bank .7 Under the, personal guaranty executed by Defendant, he "absolutely and unconditionally guarantee[d] full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender, and the performance and discharge of all Borrower's obligations under the Note ...." & The Note was defined to "include[] without limitation all of Borrower's promissory notes and/or credit agreements evidencing Borower's loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of and substitutions for promissory notes or credit agreements. "9 The personal guaranty executed by Defendant also contained a confession of judgment clause reading as follows: CONFESSION OF K DGAI ENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR s Plaintiff s Complaint in Confession of Judgment, Ex. "B" (Promissory Note), filed March 15, 2017 6 Plaintiff's Complaint in Confession of Judgment, Ex. "A" (Commercial Guaranty), filed March 15, 2017. Plaintiff's Complaint in Confession of Judgment, Ex. `B" (Promissory Note), filed March 15, 2017 (emphasis added). a Plaintiff's Complaint in Confession of Judgment, Ex. "A" (Commercial Guaranty), filed March 15, 2017. 9 Plaintiffs Complaint in Confession of Judgment, Ex. "A" (Commercial Guaranty), filed March 15, 2017 (emphasis added). ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OT TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IM[MEDIATELY; AND FOR SO DOING, THIS GUARANTY OR A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY. GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.io Thereafter, at the borrower's request and by way of "Change in Terms" Agreements" or "Promissory Note Modification" Agreements, 12 the maturity date of the debt was extended, with the final such deadline for repayment becoming March 19, 2015.13 The extension agreements were all executed on behalf of the corporate borrower by Defendant. Neither the first twelve such agreements, titled "Change in Terms" io Plaintiff's Complaint in Confession of Judgment, Ex. "A" (Commercial Guaranty), filed March 15, 2017. 11 Plaintiff's Complaint in Confession of Judgment, Ex. `B" (Change in Terms Agreement, dated February 27, 2007, extending maturity date to February 12, 2009), (Change in Terms Agreement, dated March 12, 2009, extending maturity date to May 12, 2009), (Change in Terms Agreement, dated May 22, 2009, extending maturity date to June 12, 2009), (Change in Terms Agreement, dated June 12, 2009, extending maturity date to June 12, 2010), (Change in Terms Agreement, dated June 17, 2010, extending maturity date to June 12, 2011), (Change in Terms Agreement, dated July 20, 2011, extending maturity date to August 12, 2011), (Change in Terms Agreement, dated August 29, 2011, extending maturity date to November 12, 2011), (Change in Terms Agreement, dated December 27, 2011, extending maturity date to February 12, 2012), (Change in Terms Agreement, dated March 21, 2012, extending maturity date to May 12, 2012), (Change in Terms Agreement, dated June 27, 2012, extending maturity date to August 12, 2012), (Change in Terms Agreement, dated September 28, 2012, extending maturity date to September 19, 2013), (Change in Terms Agreement, dated October 24, 2013, extending maturity date to December 19, 2013), filed March 15, 2017.. 12 Plaintiffs Complaint in Confession of Judgment, Ex. "B" (Promissory Note Modification Agreement, dated January 30, 2014, extending maturity date to March 19, 2014), (Promissory Note Modification Agreement, dated April 10, 2014, extending maturity date to March 19, 2015), filed March 15, 2017. " Plaintiff's Complaint in Confession of Judgment, Ex. `B" (Promissory Note Modification Agreement, dated April 10, 2014, extending maturity date to March 19, 2015), filed March 15, 2017. Agreements, nor the last two such agreements, titled "Promissory Note Modification" Agreements, while differing in verbiage, materially modified the Note except with respect to its maturity date. The "Change in Terms" Agreements expressly referenced the continued viability of "all agreements ... securing the obligation(s)."'4 The more abbreviated "Promissory Note Modification" Agreements omitted such an express reference, but included the signature of Defendant in his capacity as guarantor. 15 It is alleged in the Plaintiff's Complaint in Confession of Judgment that the corporate borrower failed to pay the Note in full upon maturity, an event of default.16 Judgment was confessed against Defendant in his capacity as guarantor in the total amount of $274,592.91, of which $247,168.03 was attributed to principal, $14,241.31 was attributed to interest as of January 25, 2017, and $13,183.57 was attributed to late and other charges -plus interest and late charges from January 26, 2017, and "reasonable and actually incurred" attorney's fees. 17 PETITION TO STRIKE Defects appearing on the face of the record, which Defendant's petition asserts require that the confessed judgment be stricken, are as follows: (1) the absence of an 14 Plaintiffs Complaint in Confession of Judgment, Ex. "B" (Change in Terms Agreement, dated February 27, 2007, extending maturity date to February 12, 2009), (Change in Terms Agreement, dated March 12, 2009, extending maturity date to May 12, 2009), (Change in Terms Agreement, dated May 22, 2009, extending maturity date to June 12, 2009), (Change in Terms Agreement, dated June 12, 2009, extending maturity date to June 12, 2010), (Change in Terms Agreement, dated June 17, 2010, extending maturity date to June 12, 2011), (Change in Terms Agreement, dated July 20, 2011, extending maturity date to August 12, 2011), (Change in Terms Agreement, dated August 29, 2011, extending maturity date to November 12, 2011), (Change in Terms Agreement, dated December 27, 2011, extending maturity date to February 12, 2012), (Change in Terms Agreement, dated March 21, 2012, extending maturity date to May 12, 2012), (Change in Terms Agreement, dated June 27, 2012, extending maturity date to August 12, 2012), (Change in Terms Agreement, dated September 28, 2012, extending maturity date to September 19, 2013), (Change in Terms Agreement, dated October 24, 2013, extending maturity date to December 19, 2013), filed March 15, 2017. 1s Plaintiff's Complaint in Confession of Judgment, Ex. "B" (Promissory Note Modification Agreement, dated January 30, 2014, extending maturity date to March 19, 2014), (Promissory Note Modification Agreement, dated April 10, 2014, extending maturity date to March 19, 2015), filed March 15, 2017. 16 Plaintiff s Complaint in Confession of Judgment, ¶9, filed March 15, 2017. "Plaintiffs Complaint in Confession of Judgment, $11, filed March 15, 2017 averment in the complaint in confession of judgment that thirty days' notice of default was provided to the corporate' borrower;18 and (2) the absence of language in the promissory note modification agreements indicative of an intent to preserve the vitality of the cognovit provision in Defendant's initial guaranty agreement.19 With respect to the latter contention, the petition notes that "[a] warrant of attorney to confess judgment is not to be foisted upon anyone by implication or by general and nonspecific reference."26 STATEMENT OF LAW A general statement of Pennsylvania law as it relates to confessions of judgment has been provided as follows: Confessions of judgment are disfavored in Pennsylvania and are to be strictly construed. The validity of a confession of judgment requires strict compliance with the Rules of Civil Procedure as well as "rigid adherence to the provisions of the warrant of attorney." A confessed judgment will be stricken if there is a fatal defect on the face of the record. A petition to strike a judgment entered by confession operates as a demurrer to the record and must be granted when a fatal defect appears." On the other hand, "courts have not wiped out the use of confessions of judgment entirely," and they serve a legitimate purpose in promoting the free flow of credit for the particular benefit of persons and entities utilizing the device. United States Fidelity & Guaranty Co. v. Quinn, 223 Pa. Super. 285, 289, 299 A.2d 338, 340 (1972). Although a "novation" may arguably serve to vitiate the effect of a confession of judgment clause contained in a prior agreement, the mere extension of a maturity date on a promissory note is not generally considered a significant enough modification of terms to rise to the level of a novation for this purpose. See Graystone Bank v. Grove Estates, LP., 2012 PA Super 274, 58 A.3d 1277. It is also well settled that "[a] surety is "' Defendant's Petition To Strike, or in the Alternative, To Open Plaintiff's Confessed Judgment 114-7, filed May 25, 2017. 19 Defendant's Petition To Strike, or in the Alternative, To Open Plaintiff's Confessed Judgment, JM8-17, filed May 25, 2017. 20 Defendant's Petition To Strike, or in the Alternative, To Open Plaintiff's Confessed Judgment, T17, filed May 25, 2017. 21 First Commonwealth Bank v. Federated Home & Mortg. Co., 10 Pa. D. & C.5th 37, 39-40 (Centre Co. 2010) (citations omitted). not discharged by an extension of the time of payment or performance to which he consents, or where he consents in advance, or where the extension is permissible within the express provisions of the contract executed by the surety." Pure Oil Co. v. Shlifer, 115 Pa. Super. 319, 323, 175 A. 895, 897 (1934) (citations omitted). APPLICATION OF LAW TO FACTS In the present case, the 30 -day notice provision cited by Defendant as a basis for striking the judgment confessed against him is not, by the terms of the promissory note, applicable to the type of default a payment default—alleged by Plaintiff. Accordingly, the absence of an allegation in the complaint in confession of judgment that such notice was given does not constitute a fatal defect on the face of the record that would warrant the relief requested. In addition, based upon the principles recited above, where Defendant's guaranty agreement containing a confession of judgment clause expressly encompassed "all renewals of, extensions of, modifications of, refinancings of, consolidations of and substitutions for promissory notes or credit agreements,"22 mere extensions of the maturity date of the promissory note, which Defendant himself executed on behalf of the corporate borrower, would not serve to vitiate the effect of the confession of judgment clause in the guaranty. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 21" day of July, 2017, upon consideration of Defendant's Petition To Strike, or in the Alternative, To Open Plaintiffs Confessed Judgment, following oral argument held on July 5, 2017, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. The petition is denied insofar as it seeks an order striking the judgment; 22 PWntifrs Complaint in Confession of Judgment, Ex. "A" (Commercial Guaranty), filed March 15, 2017. f 2. The court having previously deferred action on the petition insofar as it seeks an order opening the judgment, pending disposition of the request to strike, a RULE is issued upon Plaintiff to show cause why the judgment should not be opened; a. The petition, insofar as it seeks to open the judgment, shall be decided under Pa. R.C.P. 206.7; b. An answer to the petition having been previously filed by Plaintiff, depositions shall be completed within 45 days of the date of this order; c. Argument shall be held on Thursday, October 5, 2017, at 1:30 p.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania; and d. Briefs shall be submitted to the court at least seven days prior to argument. Brian M. Kite, Esq. Grenen & Birsic, P.C. 9f Floor One Gateway Center Pittsburgh, PA 15222 Attorney for Plaintiff Craig A. Diehl, Esq. 3464 Trindle Road Camp Hill, PA 17011 Attorney for Defendant BY THE COURT, J. ' esley 014.,'— S.J.