Dime Bank v. Andrews
Decision Date | 08 May 2015 |
Docket Number | No. 1129 EDA 2014,1129 EDA 2014 |
Citation | 115 A.3d 358,2015 PA Super 114 |
Parties | The DIME BANK, Appellee v. Peter ANDREWS, Appellant. |
Court | Pennsylvania Superior Court |
Daniel P. Lyons, Stroudsburg, for appellant.
Jane T. Smedley, Kingston, for appellee.
BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.
Peter Andrews appeals the trial court's March 6, 2014 order denying his petition to strike a confessed judgment in favor of The Dime Bank (“Dime”) and allowing Dime to file a second amended complaint in confession of judgment. The question presented concerns infirmities in Dime's first and first amended complaints in confession of judgment, which infirmities Andrews contends the trial court should have deemed fatal to the judgment. We reverse and remand for further proceedings.
On or about August 19, 2011, in tandem with obtaining a loan from Dime in the amount of $915,942, Samfivedom, LLC, and Thoren, Inc. (“Borrowers”), executed a note (“Note”) in favor of Dime that was secured by a guarantee and surety agreement that Andrews executed in his capacity as one of three personal guarantors. On or about March 2, 2012, the parties to the Note entered into a note modification agreement that did not affect Andrews' guarantee.
The Guarantee and Suretyship Agreement (the “Guarantee”) at issue in this appeal contained a notice obligation on the part of Dime as follows: “The BANK hereby acknowledges and agrees that upon an event of default by the BORROWER under any of the LOAN DOCUMENTS, the BANK shall provide the GUARANTOR with written notice of said default at least ten (10) days prior to the commencement of any collection proceedings hereunder.” Guarantee and Suretyship Agreement at 2. It further contained the following provision regarding confession of judgment:
Id. at 4–5 ( ).
After Borrowers defaulted under the Note, on October 19, 2012, Dime filed a complaint in confession of judgment. Therein, Dime alleged that “[a] default occurred under the [N]ote in that the Borrowers failed to pay the money due and owing the Bank pursuant to the Note, whereupon the Bank demanded the entire balance of the Note immediately due and payable.” Complaint in Confession of Judgment (“First Complaint”), 10/19/2012, at 2 ¶ 6. To this complaint, Dime affixed several affidavits of no import to the instant appeal as well as copies of the Note, note modification, and Guarantee.
On November 8, 2012, Andrews filed a petition to strike the confessed of judgment. On November 14, 2012, the trial court issued a rule to show cause why the petition should not be granted. On December 5, 2012, the parties entered into a stipulation. Therein, the parties agreed that Dime would be allowed to file an amended complaint in confession of judgment. As well, the parties agreed that Andrews would retain the prerogative to file a new petition to strike as though the amended complaint commenced a new action.1 The parties also agreed in the stipulation that it rendered moot Andrews' earlier petition to strike.
On December 19, 2012, Dime filed an amended complaint in confession of judgment (“First Amended Complaint”) that was materially identical to Dime's First Complaint. On January 2, 2013, Andrews filed a petition to strike the First Amended Complaint. Therein, Andrews identified the following alleged deficiencies in Dime's pleading:
Petition to Strike First Amended Complaint at 2 (unnumbered).
On January 3, 2013, the trial court issued a rule to show cause why Andrews' petition should not be granted. On January 22, 2013, Dime filed its answer to Andrews' petition to strike. In relevant part, Dime responded to Andrews' averments as follows:
Dime's Answer to Andrews' Petition to Strike Confession of Judgment Based on Amended Complaint in Confession of Judgment at 1–2 (unnumbered). Andrews and Dime filed briefs in support of their petitions on November 15 and November 27, 2013, respectively.2
On March 6, 2014, the trial court entered an opinion and order denying Andrews' petition. Therein, it explained as follows:
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