Trust Bank v. PA Muscle Bone Joint ( 2023 )

J-S35010-22; J-S35016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TRUIST BANK, FORMERLY KNOWN : IN THE SUPERIOR COURT OF
AS BRANCH BANKING AND TRUST : PENNSYLVANIA
COMPANY, SUCCESSOR-BY-MERGER :
TO SUSQUEHANNA BANK :
:
:
v. :
:
: No. 565 MDA 2022
PENNSYLVANIA MUSCLE BONE AND :
JOINT LLC :
:
Appellant :
Appeal from the Order Entered March 2, 2022
In the Court of Common Pleas of Schuylkill County Civil Division at
No(s): J-4065-2021
TRUIST BANK, FORMERLY KNOWN : IN THE SUPERIOR COURT OF
AS BRANCH BANKING AND TRUST : PENNSYLVANIA
COMPANY, SUCCESSOR BY MERGER :
TO SUSQUEHANNA BANK :
:
:
v. :
:
: No. 588 MDA 2022
DANIEL J. D'ARCO :
:
Appellant :
Appeal from the Order Entered March 2, 2022
In the Court of Common Pleas of Schuylkill County Civil Division at
No(s): J-4066-2021
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 24, 2023
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S35010-22; J-S35016-22
Daniel J. D’Arco and the Pennsylvania Muscle Bone and Joint LLC (the
“Medical Practice”) appeal from the orders denying their petitions to strike
and/or open confessed judgments against them. The confessed judgments
were entered by Truist Bank, formerly known as Branch Banking and Trust
Company, Successor by Merger to Susquehanna Bank (“Truist”). D’Arco and
the Medical Practice argue Truist’s violation of the Equal Credit Opportunity
Act (“ECOA”)1 was a meritorious defense, the confession of judgment clauses
were not self-sustaining, and Truist failed to return Payment Protection
Program (“PPP”) money. We affirm.
The trial court summarized the factual and procedural background as
follows:
[D’Arco] operates, and is the sole member of, the Medical
Practice. On January 7, 2009, the Medical Practice executed
a Promissory Note in favor of Susquehanna Bank (the
“Lender”) for the principal amount of $400,000.00 (the
“Note”), along with a Commercial Security Agreement. The
Note sets forth several provisions, including, that the loan is
payable upon demand, and that the terms of the Note shall
inure to the benefit of the Lender and its successors and
assigns. Additionally, the Note contains a Confession of
Judgment clause.1 On January 7, 2009, Dr. D'Arco executed
a Commercial Guaranty2 in favor of the Lender, which also
included a Confession of Judgment clause.
1The Confession of Judgment clause contained in the
Note, provides as follows.
CONFESSION OF JUDGMENT. BORROWER HEREBY
IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OR THE PROTHONOTARY OR CLERK OF
ANY COURT IN THE COMMONWEALTH OF
____________________________________________
1 15 U.S.C.A. §§ 1691-1691f.
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PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY
TIME FOR BORROWER AFTER A DEFAULT UNDER THIS
NOTE AND WITH OR WITHOUT COMPLAINT FILED,
CONFESS OR ENTER JUDGMENT AGAINST
BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF
THIS NOTE AND ALL ACCRUED INTEREST, LATE
CHARGES AND ANY AND ALL AMOUNTS EXPENDED
OR ADVANCED BY LENDER RELATING TO ANY
COLLATERAL SECURING THIS NOTE, TOGETHER
WITH COSTS OF SUIT, AND AN ATTORNEY'S
COMMISSION OF 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 IMMEDIATELY; AND FOR SO
DOING, THIS NOTE OR A COPY OF THIS NOTE
VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT
WARRANT. THE AUTHORITY GRANTED IN THIS NOTE
TO CONFESS JUDGMENT AGAINST BORROWER 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 THE NOTE. BORROWER
HEREBY WAIVES ANY RIGHT BORROWER 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 BORROWER’S ATTENTION
OR BORROWER HAS BEEN REPRESENTED BY
INDEPENDENT LEGAL COUNSEL.[2]
2 The Note, Commercial Security Agreement, and
Guaranty are hereafter referred to collectively as the
“Loan Documents”.
By correspondence dated June 16, 2021, [Truist] informed
[D’Arco and the Medical Practice] that it demanded the
____________________________________________
2 The confession of judgment clause contained in the Guaranty was
substantially similar, with minor changes, such as replacing “borrower” with
“guarantor” and “entire principal balance of this note” with “entire principal
balance of this guaranty.”
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immediate payments of all amounts due and owing under
the Loan Documents. Further, [Truist] notified [D’Arco and
the Medical Practice] that failure to immediately pay the
outstanding amount would result in the Bank filing for
judgments under the Note and Guaranty, as well as, that
[Truist] would proceed with foreclosure of the collateral
secured by the Security Agreement. On August 18, 2021,
[Truist] filed separate Complaints in Confession of Judgment
against [the Medical Practice], at Docket J-4065-2021, and
against [D’Arco], at Docket J-4066-2021. In these
complaints, [Truist] alleges that [the Medical Practice]
defaulted on the loan when it failed to make payment upon
demand of the Note. Additionally, [Truist] alleges that the
default remains uncured by the [Medical Practice] or
[D’Arco]. [Truist] demands judgment in its favor, and
against [the Medical Practice] or [D’Arco], in the total
amount of $345,091.83. [Truist] asserts that this total
includes $342,090.33 of principal, fees and interest through
July 19, 2021; $2,990.00 in attorney’s fees and costs
through July 19, 2021; and $11.50 in filing fees. [Truist]
further requests continuing interest, including post
judgment interest at the default rate, and continuing fees
and costs. On August 18, 2021, the Prothonotary’s Office of
Schuylkill County entered separate judgments against [the
Medical Practice] and [D’Arco] in the amount of $
345,091.83.
Trial Court Opinion, filed Mar. 2, 2022, at 1-3 (some footnotes omitted).
The confession of judgment clause in the Note is on the same page as
D’Arco’s signature, who signed on behalf of the Medical Practice. Complaint in
Confession of Judgment, filed Aug. 18, 2021, at Exh. A. The Note further
provides that it “shall be binding upon [the Medical Practice], and upon [the
Medical Practice’s] heirs, personal representatives, successors and assigns,
and shall inure to the benefit of Lender and its successors and assigns.” Id.Similarly, D’Arco’s signature appears on the same page of the Guaranty as the
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confession of judgment clause and the Guaranty defines “Lender” as
“Susquehanna, its successors and assigns.” Id. at Exh. C.
D’Arco and the Medical Practice filed petitions on October 13, 2021,
seeking to strike and/or open the judgments entered by confession, and
requesting stay of execution. They argued, among other things, the court
should strike the confessed judgment because the guaranty is not enforceable
by a successor and the warrant is unenforceable because it was in small print
on a pre-printed form. They contended that the court should open the
confessed judgment because the consent necessary to permit an alleged
successor to the Note to enforce it must be determined by a jury, Truist
required D’Arco’s spouse to pledge marital assets and otherwise guarantee
the loan to refinance the Note in violation of the ECOA and Regulation B, and
Truist knowingly and improperly froze, setoff, and attached wages.
In a Declaration attached to a supplemental brief in support of the
petitions to strike and/or open, D’Arco stated that sometime in 2021, a
representative of Truist contacted him, stating that Truist had been assigned
the loan. The representative allegedly informed him that the “loan did not
meet Truist’s standard loan profile and that the Medical Practice, [D’Arco,] and
[his] wife . . . needed to pledge marital assets and [D’Arco’s] wife would need
to pledge her assets to guarantee the debt of the Medical Practice.”
Declaration of Daniel J. D’Arco, M.D., filed Jan.31, 2022, at ¶ 8. D’Arco stated
he was the sole owner of the Medical Practice, and his wife had no interest in
it. Id. at ¶ 9. He stated Truist insisted his wife pledge her assets and guarantee
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the debt even though the Medical Practice was not in default on the loan. Id.
at ¶ 10. He further claimed that because he and his wife “refused to pledge
[his] wife’s assets and she refused to guarantee the Medical Practice’s debt,
Truist took PPP monies loaned to pay . . . employees from the Medical
Practice’s bank account[,]” and Truist has not returned the money, “[e]ven
though [it] agreed” to do so. Id. at ¶ 12.
The trial court issued rules to show cause why D’Arco and the Medical
Practice were not entitled to relief. Truist filed answers to the petitions to strike
and/or open. The court held oral argument and both parties filed supplemental
briefs. In March 2022, the trial court denied the petitions to strike and/or open
the confessed judgments. D’Arco and the Medical Practice filed timely notices
of appeal.3
D’Arco and the Medical Practice raise the following issues:
1. Did the trial court err in failing to hold that an Equal Credit
Opportunity Act (15 U.S.C. § 1691 et seq.) claim was
sufficiently alleged to constitute a meritorious defense to
open the confessed judgment?
2. Did the trial court err in holding that the Note and
Guarantee are enforceable by an alleged successor bank
when no evidence of such assignment to a successor bank
was introduced?
3. Did the trial court err in holding that the confession of
judgment clause was enforceable notwithstanding its lack of
descriptiveness, small print on a boiler plate form, failure to
require the clause to be separately initialed, and no
____________________________________________
3 We consolidated the cases on appeal.
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J-S35010-22; J-S35016-22
statement of waiver of rights was included within the
clause?
4. Did the trial court err in failing to hold that the Bank
knowingly and improperly froze, setoff and attached wages
and refused to release them?
Appellants’ Brs. at 2-3.
Opening and striking a judgment are different remedies subject to
different standards. “A petition to strike a judgment is a common law
proceeding which operates as a demurrer to the record.” Resolution Trust
Corp. v. Copley Qu-Wayne Assoc., 683 A.2d 269, 273 (Pa. 1996). “A
petition to strike a judgment may be granted only for a fatal defect or
irregularity appearing on the face of the record.” Id. The “record” for this
purpose is the court record behind the confessed judgment: the complaint in
confession of judgment and any exhibits the petitioner attached to it. Ferrick
v. Bianchini, 69 A.3d 642, 647 (Pa.Super. 2013).
“A petition to open a confessed judgment is an appeal to the equitable
powers of the court.” Neducsin v. Caplan, 121 A.3d 498, 504 (Pa.Super.
2015). The court may open a confessed judgment “if the petitioner (1) acts
promptly, (2) alleges a meritorious defense, and (3) can produce sufficient
evidence to require submission of the case to a jury.” Id. at 506 (citation and
emphasis omitted). “A meritorious defense is one upon which relief could be
afforded if proven at trial.” Id. (quoting Ferrick, 69 A.3d at 647). Rule
2959(e) provides that “[t]he court shall dispose of the rule on petition and
answer, and on any testimony, depositions, admissions and other evidence,”
and “[i]f evidence is produced which in a jury trial would require the issues to
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be submitted to the jury the court shall open the judgment.” Pa.R.C.P.
2959(e). Therefore, “a judgment of confession will be opened if ‘a petitioner
seeking relief therefrom produces evidence which in a jury trial would require
issues to be submitted to a jury.’” Neducsin, 121 A.3d at 507 (quoting Foerst
v. Rotkis, 368 A.2d 805, 807–08 (Pa.Super. 1976)).
We review an order denying a petition to strike a confessed judgment
to determine whether the record in existence at the time of the entry of the
judgment is sufficient to sustain the judgment. First Union Nat’l Bank v.
Portside Refrigerated Servs., Inc., 827 A.2d 1224, 1227 (Pa.Super. 2003).
The denial of a petition to open a confessed judgment is subject to abuse of
discretion review. Neducsin, 121 A.3d at 506. Our scope of review is “very
narrow,” and we will overturn the trial court’s decision only if the trial court
abused its discretion or committed manifest error. Atl. Nat. Trust, LLC v.
Stivala Invs., Inc., 922 A.2d 919, 925 (Pa.Super. 2007).
D’Arco and the Medical Practice first claim the court erred in failing to
hold that the ECOA claim constituted a meritorious defense. They claim the
ECOA and its implementing Regulation B prohibit creditors from discriminating
against credit applicants based on their marital status. They assert Truist
sought a spousal guarantee, and argue Truist treated D’Arco’s wife as a “joint
applicant” for refinancing even though she did not agree to take on that status.
Appellants’ Brs. at 7. D’Arco and the Medical Practice point out D’Arco’s wife
did not own an interest in the Medical Practice or receive any of the loan
proceeds. They claim that in D’Arco’s Declaration, he explained that during
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Truist’s credit review process, Truist “included a demand for the pledge of
marital assets and spousal guaranty without any analysis of their necessity.”
Id. at 9. They maintain a creditor cannot recover from parties who would not
have incurred liability for the debt without the ECOA violation and the creditor
is liable to the party whose rights were violated. They thus argue the
confessed judgment should be opened based on the ECOA violation.
D’Arco and the Medical Practice liken this case to Silverman v. Eastich
Multiple Investor Fund, L.P., 51 F.3d 28, 33 (3d Cir. 1995). They maintain
that D’Arco has been harmed because “the Bank called a longstanding loan
that had not been in default simply out of spite because [his] wife would not
put her assets or marital assets at risk for the Medical Practice that she owned
no interest in.” Appellants’ Brs. at 11. They argue that courts should not limit
the claimants who can seek relief for an ECOA violation.
The ECOA provides that it is unlawful “for any creditor to discriminate
against any [credit] applicant, with respect to any aspect of a credit
transaction . . . on the basis of . . . marital status.” 15 U.S.C.A. § 1691(a)(1).
Federal regulations implementing the ECOA provide that a creditor cannot
require the signature of an applicant’s spouse if the applicant qualifies under
the creditor’s standards of creditworthiness:
Except as provided in this paragraph, a creditor shall not
require the signature of an applicant’s spouse or other
person, other than a joint applicant, on any credit
instrument if the applicant qualifies under the creditor’s
standards of creditworthiness for the amount and terms of
the credit requested.
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12 C.F.R. § 202.7(d)(1).
With the ECOA, “Congress chose to protect women from credit
discrimination by requiring that creditors treat all credit applicants—male and
female, married and unmarried—in an identical manner.” S.W. Pa. Reg’l
Council, Inc. v. Gentile, 776 A.2d 276, 281 (Pa.Super. 2001) (quoting
Integra Bank v. Freeman, 839 F.Supp. 326, 328 n.3 (E.D. Pa. 1993)).
However, “Congress did not enact the ECOA to permit permissibly bound
debtors to escape contractual liability when called upon to perform.” Id. at
282 (citation omitted). Where a spouse is required to sign as a guarantor, he
or she “may assert an ECOA violation as a defense to a state-court confession
of judgment.” Id. “If the defense is successful, the guarantor’s obligation is
voided, but the underlying debt and any other guarantees are not voided.” Id.
In Silverman, which Appellants cite, the plaintiff was the wife of a
partner in a general partnership. 51 F.3d at 29-30. The partnership had
borrowed $10 million from a bank. The bank not only required the partners to
guaranty the loan, but also required the plaintiff to be a guarantor. The
partnership defaulted on the loan, and the bank confessed judgment in state
court against the guarantors, including the plaintiff. The plaintiff filed suit in
federal court alleging the Bank had violated her rights under the ECOA and
sought declaratory and injunctive relief barring execution on the confessed
judgment against her. Id. at 30. The Third Circuit concluded that although the
statute of limitations had expired on the plaintiff’s ability to sue under the
ECOA, nothing barred her from raising the ECOA defensively, which she had
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in effect done by seeking relief in federal court to stop the enforcement of the
confessed judgment. Id. at 32. The court pointed out that even if the plaintiff
obtained the relief she sought, “this would not void the underlying debt
obligation nor any other guaranties.” Id. at 33.
Here, unlike in Silverman, it is the credit applicant D’Arco, not his
spouse, that attempts to raise an ECOA defense. Even if the credit applicant
may raise ECOA as a defense to a judgment of confession action, D’Arco has
not sufficiently alleged a ECOA violation to warrant the grant of a petition to
open. D’Arco maintains Truist required that his wife became a guarantor of
the loan. Such a requirement violates ECOA only where the credit applicant
“qualifies under the creditor’s standards of creditworthiness for the amount
and terms of the credit requested.” See 12 C.F.R. § 202.7(d)(1); Gentile,
776 A.2d at 282 (lender does not violate ECAO where spouses are joint
applicants or where credit applicant is not individually creditworthy without
spouse’s signature). D’Arco makes no claim in his pleadings or his declaration
that he qualified under Truist’s standards of creditworthiness for the credit
requested. Therefore, he failed to produce evidence which would require his
alleged ECOA defense to be submitted to a jury and the court did not err in
denying his petition to open.4 See Neducsin, 121 A.3d at 507.
____________________________________________
4 The trial court concluded D’Arco and the Medical Practice failed to allege
and/or produce sufficient evidence of a meritorious defense based on the
ECOA. Trial Ct. Op. at 13. It pointed out that D’Arco’s wife was not a signatory
to any of the Loan Documents and was not an applicant or guarantor of the
(Footnote Continued Next Page)
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J-S35010-22; J-S35016-22
In his second claim, D’Arco and the Medical Practice argue the court
erred in holding the confession of judgment clauses in the Note and Guaranty
were enforceable by a successor bank. They argue rigid adherence to the
warrant of attorney provisions and other loan documents is required to enter
a valid confession of judgment. They point out that a confession of judgment
clause must be self-sustaining and argue that where clear consent to the
confession of judgment clause is absent, it is not self-sustaining. D’Arco and
the Medical Practice argue clear consent was not provided because the Note
did not show D’Arco authorized the Note’s enforcement by an assignee. They
claim the Note “is devoid of any evidence that Dr. D’Arco has had the required
clear consent to be liable to a successor or assignee of the original bank
necessary to sustain a confession of judgment.” Appellants’ Brs. at 14. D’Arco
and the Medical Practice therefore argue that, because the confession of
judgment in the Note was not self-sustaining, it was invalid and
unenforceable. Id. They contend the Note has a fatal defect on the face of the
record and the confession of judgment should be stricken and argue the
confession of judgment in the Guaranty is not self-sustaining because of the
____________________________________________
loan, and therefore had no obligations under the Loan Documents. The court
further noted that Truist had not sought judgment against D’Arco’s wife, and
therefore she could not raise ECOA as a defense and, even if she could raise
the defense, it would not void the underlying debt owed by D’Arco. The trial
court noted that “in general 15 U.S.C. § 1691e(a) provides for a separate
cause of action for violations of the ECOA.” Id. at 14 (footnote omitted).
Although our reasoning differs from the trial court, we can affirm the trial court
on any basis supported by the certified record. Commonwealth v. Williams,
125 A.3d 425, 433 n.8 (Pa.Super. 2015).
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defect in the Note. They further argue that, if it is not stricken due to the
defect, the court should open the confession of judgment and hold a hearing.5
The trial court rejected this claim. It concluded the Note and Guaranty
expressly authorize the enforcement by a successor of the Lender, pointing
out that on page two of the Note, “in the provision entitled ‘SUCCESSOR
INTERESTS’ it specifically states that ‘[t]he terms of this Note shall be binding
upon Borrower, and upon Borrower’s heirs, personal representatives,
successors and assigns, and shall inure to the benefit of Lender and its
successors and assigns . . . .’” Trial Ct. Op. at 6 (alteration in original). The
court further noted that on page two of the Guaranty, “in a provision entitled
‘MISCELLANEOUS PROVISIONS’, it expressly states that ‘[t]he following
miscellaneous provisions are part of this Guaranty’ . . . Successors and
Assigns[--]The terms of this Guaranty shall be binding on Guarantor, and upon
Guarantor’s heirs, personal representatives, successors, and assigns, and
shall be enforceable by Lender and its successors and assigns.” Id.(alterations in original). The court also pointed out that the Guaranty defines
the term “Lender” to include “Susquehanna Bank, its successors, and assigns.”
Id.____________________________________________
5In the issue presented section in their briefs, D’Arco and the Medical Practice
argue the Note and Guaranty were unenforceable where no evidence of
assignment to the successor bank was introduced. However, they do not
present this argument in the argument section of the briefs and therefore
waived the claim. See Commonwealth v. Rolan, 964 A.2d 398, 411
(Pa.Super. 2008).
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The record supports the trial court’s conclusion, and it did not err in
denying the petition to strike. The Loan Documents made clear that they could
be enforced by the successor or assignee of the Lender, such as Truist.
The trial court also denied the petition to open based on the claim that
there was not a clear manifestation of consent to allow a successor trustee to
enforce the confession of judgment clauses. Id. at 10. The court found D’Arco
and the Medical Practice failed to allege or produce evidence to support a
meritorious defense, reasoning that the Note and Guaranty expressly
authorize the enforcement by a successor. This was not an abuse of discretion.
D’Arco and the Medical Practice next claim the confession of judgment
clauses were unenforceable because they lacked descriptiveness, were in
small printing on a boilerplate form, were not separately initialed, and had no
statement of waiver of rights within the clauses. They further argue the clause
was not “properly set apart or identifiable to constitute a valid waiver of due
process” and was “not separately and clearly signed or initialed so as to
acknowledge the warrant of attorney by the signor, who is the party allegedly
agreeing to allow confessing judgment.” Appellants’ Brs. at 17. Further, they
claim that the provision was “set in small hard-to-read font.” Id. D’Arco and
the Medical Practice argue that due to these alleged defects, they were denied
due process rights of notice and hearing, and D’Arco did not voluntarily,
intelligently, and knowingly waive his rights.
Courts “have noted the need for strict adherence to rules governing
confessed judgments.” Graystone Bank v. Grove Estates, L.P., 58 A.3d
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1277, 1282 (Pa.Super. 2012) (quoting Hazer v. Zabala, 26 A.3d 1166, 1169
(Pa.Super. 2011)). “A warrant of attorney to confess judgment must be self-
sustaining and to be self-sustaining the warrant must be in writing and signed
by the person to be bound by it. The requisite signature must bear a direct
relation to the warrant of attorney and may not be implied.” Id. (citation
omitted) (emphasis removed). In Graystone Bank, this Court found that a
warrant of attorney “directly related” to the signature where it “appeared
conspicuously in all caps on the very bottom of the penultimate page of the
agreement and immediately preceded where the executor . . . signed at the
top of the following, final page.” Id. at 1283 (emphasis removed). We
concluded that “[e]vidence of this location of a conspicuous cognovit contained
within the body of the agreement sufficed to establish that [the executor]
effectively signed his name to the warrant of attorney.” Id.The trial court found the confession of judgment clauses were valid and
self-sustaining because they appear in the Loan Documents in all caps, are at
the bottom of the last page of each agreement, and immediately precede the
Borrower’s and Guarantor’s signatures. It pointed out that in the clauses in
both Loan Documents, D’Arco waived his rights to notice and a hearing related
to a confessed judgment. Trial Ct. Op. at 9. The court found that he
nonetheless had opportunities to be heard, including the filing of the petition
to open or strike, the rule to show cause issued on Truist, and oral argument.
The court concluded there was no fatal defect on the face of the record and
D’Arco was not denied his due process rights.
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This was not error. The confession of judgment clauses were self-
sustaining, as they directly related to the signatures, which were on the same
page as, and close to, the confession of judgment clauses, which were in all
capital letters. See Graystone Bank, 58 A.3d at 1282-83.
In their final issue, D’Arco and the Medical Practice claim the court erred
in failing to hold the Bank knowingly and improperly froze, set off and attached
wages and refused to release them. They assert that Truist attached $50,000
of PPP loan proceeds intended to be paid as wages to the Medical Practice
employees in violation of 42 Pa.C.S.A. § 8127(a).6 D’Arco claims he informed
Truist that the funds were PPP loan proceeds to be paid to employees and that
Truist agreed to restore the funds but did not. He therefore claims the
confessed judgments should have been opened because the money should be
released.
The trial court concluded D’Arco and the Medical Practice failed to allege
and/or produce evidence of a meritorious defense. It reasoned that whether
Truist improperly froze, set off, and/or attached PPP loan proceeds and payroll
“is a separate and distinct issue from the issue at hand, which is whether the
confessed judgments should be opened.” Trial Ct. Op. at 15.
____________________________________________
6 42 Pa.C.S.A. § 8127(a) provides that, with certain exceptions, “[t]he wages,
salaries and commissions of individuals shall while in the hands of the
employer be exempt from any attachment, execution or other process.”
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The court did not abuse its discretion. Whether certain funds should
have been preserved does not provide a defense to Truist’s ability to confess
judgment.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/24/2023
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