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HomeMy WebLinkAbout94-5626 civilFEDERAL FINANCIAL COMPANY, Plaintiff VS. JOHANSEN & DUGAN, INC., d/b/a GETTYS BUILDERS, STEPHEN R. JOHANSEN, KRISTA Y. JOHANSEN and RUSSELL L. DUGAN, Defendants VS. STEPHEN R. JOHANSEN and KRISTA Y. JOHANSEN, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 94-5626 CIVIL CIVIL ACTION- LAW IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, JJ. AND NOW, this ORDER day of January, 1999, the motion of the defendant for summary judgment is DENIED. W. Scott Henning, Esquire For the Plaimiff BY THE COURT, ess, J. Louis J. Adler, Esquire For the Defendant :rlm FEDERAL FINANCIAL COMPANY, Plaintiff VS. JOHANSEN & DUGAN, INC., d/b/a GETTYS BUILDERS, STEPHEN R. JOHANSEN, KRISTA Y. JOHANSEN and RUSSELL L. DUGAN, Defendants VS. STEPHEN R. JOHANSEN and KRISTA Y. JOHANSEN, Additional Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 94-5626 CIVIL CIVIL ACTION- LAW IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, JJ. OPINION AND ORDER This case involves the lease of computer equipment by Johansen and Dugan, Inc., d~/a Gettys Builders from Homestead Savings Association on February 27, 1989. The written · Equipment Lease Agreement (Agreement) provided that Homestead would purchase the computer equipment from a dealer, and then lease it back to Gettys for 60 months at $1,038.68 per month. One dollar was assigned as the residual value of the equipment. Stephen and Kristen Johansen and Russell L. Dugan executed the Lease Agreement. However, the Johansens have been eliminated as parties due to their bankruptcy. The defendant made payments as stipulated under the Agreement until March 1, 1990. Homestead repossessed the equipment as provided under the Agreement when the defendants defaulted. No further action was taken until April of 94-5626 CIVIL 1994. In April of 1994, the Resolution Trust Company (RTC), became conservator for Homestead, a failed institution. RTC assigned its rights under the Agreement to the plaintiff, Federal Financial Co., in October of 1994 for $42, 497.96., the amount due under the 1989 lease plus interest and attorneys fees. Federal Financial then brought suit against the defendant to recover the amount due under the Agreement. Federal Financial then moved for summary judgment, which was denied by this court on February 6, 1996 in an opinion by the Honorable Edgar B. Bayley. The plaintiff maintained that the defendant was barred from raising the affirmative defense of accord and satisfaction by 12 USC Section 1823(e), the D'Oench, Duhme doctrine, and the federal holder in due course doctrine. Section 1823(e) codified the D'Oench, Duhme doctrine and provides that any agreement which diminishes or defeats the interest of a Corporation acquired through banking transactions must be in writing. "The rule emerging from D'Oench, Duhme is that no agreement between a borrower and a bank which does not.plainly appear on the face of an obligation or in the bank's official records is enforceable against the FDIC ... we find that this doctrine is also applicable to the RTC." Adams v. Madison Realty and Development, Inc., 937 F.2d 845,852 (1991). This court held that Section 1823(e) applies in the case sub judice, and summarized the computer lease transaction as follows' "Instead of borrowing money directly from Homestead to purchase the computer equipment, the parties agreed that Homestead would purchase the equipment, which was assigned no residual value, and then lease it to the defendants. That was a monetary, banking transaction. Homestead put up the money, defendants got their equipment, and Homestead was to be paid back in the form of 94-5626 CIVIL lease payments. The D'Oench, Duhme doctrine and 12 USC Section 1823(e) applies." Opinion at 6-7. Therefore, what remains to be decided is whether an accord and satisfaction applies under the terms of the Equipment Lease Agreement. Paragraph 20 of the Agreement provides: 20. REMEDIES. Upon the occurrence of a default Lessor may, at its option, do any one or more of the following: (a) take possession of any items, without demand or notice, wherever located, without any court order or other process of law and without thereby terminating this lease; (b) sell or otherwise dispose of any items, whether or not in Lessor's possession, at public or private sale, with or without notice to Lessee, without advertising and without any obligation to account to Lessee for any proceeds thereof, or otherwise dispose of, hold, use, release, or keep idle any item, as Lessor in its sole discretion may determine, (c) terminate this lease as to any items on notice to Lessee; (d) recover from Lessee all accrued and unpaid rents and other amounts then due and owing hereunder, plus as reasonable liquidated damages for loss of a bargain and not as a penalty, at Lessor's election (i) the Casualty Value, upon the payment of which Lessee will become entitled to the Equipment AS-IS, WHERE-IS without any warranty whatsoever; (ii) if Lessor has sold an item, the difference between the Casualty Value of the item and the net sales price (net of all costs and expenses of sale) or (iii)' if Lessor has not sold an item (and will not exercise the remedy in clause (i) or (ii), the difference between (A) the remaining rents as to such item under this lease discounted at ten percent (10%) per annum simple interest from the date due to the date of payment and (B) the then anticipated net rentals (net of all costs and expenses of re-leasing) to be received from re-leasing the item to another party or parties over the period covering the unexpired term of the lease, similarly discounted or (e) utilize any other remedy available to Lessor at law or in equity. All such remedies are cumulative of every other remedy legally available to Lessor and may be exercised concurrently or separately from time to time. Lessee will pay Lessor, in addition to other amounts payable to Lessor; all costs and expenses, including repossession and court costs and reasonable legal fees incurred by 94-5626 CIVIL Lessor in exercising any of its remedies hereunder of otherwise enforcing this lease. This obligation includes any amounts expended by Lessor prior to filing of an action as well as amounts due expended in connection with an action which is dismissed. Any waiver by Lessor of a provision of this lease must be in writing, and forbearance by Lessor will not constitute a waiver. Additionally, paragraph 5 of the Agreement provides: 5. NET LEASE; NO OFFSET. This is a net lease terminable only as expressly provided herein. Lessee may not terminate its obligations hereunder for any reason whatsoever. Lessee's obligation to make all payments under this lease is absolute and unconditional and will not be subject to any abatement, counterclaim, recoupment, offset, or defense. Lessee's obligations under this lease survive the expiration or earlier termination of the lease. The defendant Dugan has filed a motion for summary judgment pursuant to Pa.R.C.P. 1035(c). He asserts three grounds for relief. To prevail on a summary judgment motion, the moving party must establish that there are no genuine issues of material fact and they are entitled to judgment as a matter of law. Prescott v. Philadelphia Housing Authority, 124 Pa. Commw. 124, 555 A.2d 305 (1989). Additionally, the record must be viewed in the light most favorable to the non-moving party. Thompson v. Nason Hospital, 370 Pa. Super. 115, 535 A.2d 1177 (1988). First, the defendant contends that the plaintiff did not give notice of its "intended disposition" of the computer equipment, and therefore was in violation of 13 Pa.C.S.A. Section 9504(c). Section 9504(c) of the Pennsylvania Commercial Code provides that' (c) Manner of disposition.--Disposition of the collateral may be by public or private proceedings and may be as a unit or in parcels and 94-5626 CIVIL at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods, no other notification need be sent. In other cases notification shall be sent to any other secured party from whom the secured party has received (before sending his notification to the debtor or before renunciation by the debtor of his rights) written notice of a claim of an interest in the collateral. The secured party may buy at any · public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale. 13 Pa.C.S.A. Section 9504(c). Defendant asserts that the plaintiff elected to "retain the collateral in satisfaction of the obligation" under 13 Pa.C.S.A. Section 9505(b), and did not give notice to the defendant of this intended disposition. Viewing the facts in the light most favorable to the plaintiffs, we cannot say that defendant Dugan was without notice of the plaintiff' s actions. The plaintiff sent the defendant collection letters nOtifying them of the amount due and that legal action may be taken. Additionally, clause 20(a) of the Agreement states that the plaintiff may take "possession of any items, without demand or notice, wherever located." Also, the plaintiff comends that notice did not need to be given because the computer equipment was of a type that could "decline speedily in value." 13 Pa.C.S.A. Section 9504(c). Second, the defendant contends that the use of the computer equipment by the plaintiff ~ 94-5626 CIVIL constitutes a strict foreclosure.~ The plaintiff admits using about $700 worth of the computer equipment because it could not be sold. The plaintiff never told the defendant that it intended to keep the equipment in satisfaction of the debt. The plaintiff contends that the retention of the equipment was forced because it could not be sold, and therefore was not commercially unreasonable. This raises genuine issues of material fact, and summary judgment cannot be granted in favor of the defendant on this point. Third is a contention that the length of time it took for the plaintiff to institute this action against the defendant evidences the plaintiff's intent to retain the collateral and again alleging a strict foreclosure. There are, however, no writings that support the defendant' s claim that the plaintiff had abandoned its remedy to collect the full amount due under the Lease Agreement. We know of no authority by which mere delay in asserting the claim entitles the defendant to summary judgment. ORDER AND NOW, this day of January, 1999, the motion of the defendant for summary judgment is DENIED. BY THE COURT, e~s, J. ~ By a strict foreclosure, we assume the defendant means that the plaintiff intended to permanently retain the computer equipment in complete satisfaction of the debt, thereby extinguishing any claim under the Lease Agreement. 94-5626 CIVIL W. Scott Henning, Esquire For the Plaintiff Louis J. Adler, Esquire For the Defendant :rim