Berks-Lehigh Valley Production Credit, Ass'n v. Gerhard

1 Pa. D. & C.4th 647, 1988 Pa. Dist. & Cnty. Dec. LEXIS 109
CourtPennsylvania Court of Common Pleas, Carbon County
DecidedMarch 15, 1988
Docketno. 86-1395
StatusPublished
Cited by1 cases

This text of 1 Pa. D. & C.4th 647 (Berks-Lehigh Valley Production Credit, Ass'n v. Gerhard) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Carbon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berks-Lehigh Valley Production Credit, Ass'n v. Gerhard, 1 Pa. D. & C.4th 647, 1988 Pa. Dist. & Cnty. Dec. LEXIS 109 (Pa. Super. Ct. 1988).

Opinion

LAVELLE, P J.,

In this mortgage foreclosure action, defendants contend they are not in default on notes secured by a mortgage because the mortgage instrument itself does not expressly contain the terms of repayment. This defense is totally devoid of legal merit, and we shall enter a verdict in favor of plaintiff.

After a bench trial on October 5, 1987, we make the following findings of fact in narrative form.

FINDINGS OF FACT

Plaintiff, Berks-Lehigh Valley Production Credit Association (Berks), is a lending institution having its principal place of business at Fogelsville, Pennsylvania. Defendant Carbon County Sunny Side Farms is a Pennsylvania corporation having its principal place of business in Weatherly, Pa. Defendant Mark J. Gerhard is the sole stockholder of Sunny Side Farms.

On May 17, 1982, Gerhard and Sunny Side Farms executed three notes which provided that they would pay Berks, upon demand, a total of $98,500 “or whatever lesser sum may be advanced by [Berks].” Concurrently with executing the notes, Gerhard and Sunny Side Farms executed a mortgage naming Berks as mortgagée, to secure pay-[649]*649merit- on the notes. This mortgáge is recorded in Carbon County Mortgáge Book volume 3l7, páge 224., . ........ . . r -. ••

The notes provided that the full amount of defendants’ indebtedness to Berks was due and payable upon demand. However, neither the mortgage nór the notes included installment repayment terms on the loans. Instead, the terms of the installment repayments were listed on the checks which were subsequently provided to defendants at settlement on May 17, 1982,

On August 15, 1986, after defendants failed to make several installment payments on the loans, Berks made a demand for full payment of the notes causing the entire indebtedness to become immediately due and payable. Subsequently, Berks also learned that defendants had failed to keep the premises insured as required by the terms of the mortgage itself. After defendants failed to comply with Berk’s demand for full payment, Berks initiated this foreclosure action.

As of the date of hearing, the total amount of principal due on the three loans was $69,714.61 and the total amount of unpaid accrued interest was $2,178.37.

DISCUSSION

In defending this action, defendants do not dispute that they failed to make the required installment payments on the three loans. However, defendants argue in the alternative that: (1) this mortgage foreclosure action can not be sustained because the installment repáyment terms on the indebtedness underlying the mortgage, which have admittedly been breached, do not appear on the face of the mortgage and, therefore, plaintiffs only remedy is [650]*650an action in assumpsit on the notes; and (2) this mortgage foreclosure action is premature because the mortgage states that it is not due and payable for 10 years, and therefore, defendants cannot be found to have defaulted on the mortgage until 10 years have passed. We will address these issues seriatim.

Default on the mortgage

First, defendants argue that because the installment-repayment terms of the three loans do not appear on the face of the mortgage, failure to make the installment payments cannot, as a matter of law, constitute a default on the mortgage. Therefore, defendants contend, plaintiff is relegated solely to a cause of action in assumpsit on the notes. This argument is legally meritless.

Althoiigh neither the mortgage nor the notes contain the terms of the installment payment terms, the notes expressly state that the fuÜ amount of the indebtedness is payable upon demand. Further, the mortgage expressly incorporates the terms of the notes, in their entirety, in the introductory .paragraph or the “premises” of the mortgage and again in the third and fourteenth paragraphs of the mortgagor’s covenants, which provide respectively as follows:

“Whereas, the mortgagor, by a certain note or notes, stands held and firmly bound unto the mortgagee in a certain sum conditioned upon the payment when due to the mortgagee of all indebtedness of the mortgagor to the mortgagee now existing or hereafter arising within 10 years from the date hereof . . . together with interest thereon in accordance with the terms of the note or notes evidencing such indebtedness, and conditioned upon the performance of each and all of the terms, covenants and conditions thereof. ...
[651]*651“Third: That he will cause to be paid when due all indebtedness hereby secured ... in accordance with the terms of . . . the note or notes secured hereby. . . .
“Fourteenth: That upon default in the payment of the indebtedness secured hereby, or any part thereof, as the same shall become due or payable, or in the event of a breach of any of the terms, covenants and conditions of this mortgage or the note or notes secured hereby . . . the entire indebtedness secured by the mortgage shall, at the option of the mortgagee, become immediately due and payable. ...”

Defendants do not dispute that they received a demand from plaintiff to pay the full amount of the indebtedness and thereafter failed to make payment in full. Therefore, notwithstanding the absence of these installment payment terms in the mortgage and notes, defendants have clearly defaulted on the mortgage by not paying the full indebtedness under the notes upon demand.

Moreover, even had the mortgage not expressly incorporated the terms of the notes, as a general rule of construction, where a bond or note is given as part of the same transaction as the mortgage, the two instruments must be read together. See Colbassani v. Society of Christopher Columbus, 159 Pa. Super. 414, 48 A. 2d 106 (1946).

Although our independent research has revealed no factually apposite appellate case, we have discovered that the same contention defendants raise here was addressed by our distinguished colleague, Judge Rufe, of the Court of Common Pleas of Bucks County in First Federal Savings & Loan Association v. Street Road Shopping Center Inc., 68 D.&C. 2d 751 (1975). In that case, which involved a bond as opposed to a note, defendant argued that:

[652]*652“[0]nee plaintiff elects to proceed in mortgage foreclosure rather than in assumpsit on the bond, plaintiff is restricted to the terms and provisions of the mortgage only and may not rely on alleged violations of the terms of the bond. Therefore; the argument continues, since the mortgage instrument itself did not contain provisions allegedly violated, plaintiff cannot rely on the bond violations in mortgage foreclosure, but must bring an action in assumpsit on the bond. In short, to sustain an action on the mortgage foreclosure, the court must look within the four corners of the mortgage instrument alone.” id..at 753-4.

In rejecting this argument, Judge Rufe opined as follows.:

“While it is true that the mortgage instrument itself refers only to the principal sum and the metes and bounds description of the real estate security, the mortgage incorporates the bond by reference and directs the reader of the mortgage to the bond for its terms and conditions of payment a total of seven times. The bond was executed simultaneously with the mortgage and the two documents clearly relate to each other.

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1 Pa. D. & C.4th 647, 1988 Pa. Dist. & Cnty. Dec. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berks-lehigh-valley-production-credit-assn-v-gerhard-pactcomplcarbon-1988.