In re Bahara

191 B.R. 69, 28 U.C.C. Rep. Serv. 2d (West) 938, 1995 Bankr. LEXIS 1949, 1995 WL 791210
CourtUnited States Bankruptcy Court, M.D. Pennsylvania
DecidedOctober 12, 1995
DocketBankruptcy Nos. 5-92-01083, 5-92-01082
StatusPublished

This text of 191 B.R. 69 (In re Bahara) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Bahara, 191 B.R. 69, 28 U.C.C. Rep. Serv. 2d (West) 938, 1995 Bankr. LEXIS 1949, 1995 WL 791210 (Pa. 1995).

Opinion

OPINION AND ORDER

JOHN J. THOMAS, Bankruptcy Judge.

Under consideration in this Chapter 11 case is a Motion to Convert the case to Chapter 7, an Objection to Brizers’ and Ba-ilaras’ (hereinafter “Debtors”) amended plan filed by The First National Bank of Jermyn (hereinafter “FNBJ”) and FNBJ’s Motion for Relief from the Automatic Stay. An Objection to FNBJ’s Proof of Claim was filed by the Debtors.

The pertinent facts are as follows: the male Debtors, along with Edward Kubecki (hereinafter “Kubecki”) are principals of the partnership known as M. Brizer & Co., (hereinafter “Brizer & Co.”), a meat processing business located in Jermyn, Lackawanna County, PA., which ceased operations in 1988. The principals of Brizer & Co. hold title to the real estate and all equipment contained therein.

In November of 1979, FNBJ extended a $650,000.00 loan to the Wilkes-Barre Industrial Development Authority (hereinafter “1979 loan”) for the purpose of financing the acquisition of a commercial building and equipment for the use of Brizer & Co. That company was the beneficiary of the loan which was secured by a mortgage on the commercial property. The Debtors and Ku-becki and his spouse, Stella, personally guaranteed the loan with a bond guaranty. The language of the bond guaranty states that the guarantor agrees that their liability as “Guarantor shall not be impaired or affected by any renewal or extension which may be made with or without their knowledge or consent ...” (See Plaintiffs Exhibit No. 1). Monthly repayment of that loan in the amount of $6,200.00 per month was made until September of 1987.

A second loan was made with FNBJ in May of 1987 for $200,000.00. This loan was secured by the personal residences of the Debtors, Kubecki and his spouse, and two Kubecki children and their spouses as co-promisors (not co-guarantors or co-sureties) to be held jointly and severally liable for the [71]*71debt.1 (See Plaintiffs Exhibit No. k). By virtue of written appraisals submitted without objection, the Brizer residence is found valued at $138,500.00 and the Bahara residence is found valued at $148,000.00. An additional, unsecured third loan for $200,-000.00 was obtained by Brizer & Co. in June of 1987. This loan was later released and/or stricken from the record by FNBJ. (Transcript dated June 15, 199k at pp. 8 and 10.) On appeal, the Pennsylvania Supreme Court affirmed the validity of the judgments on the 1979 and the May 1987 obligations.

On June 16, 1992, Edward and Stella Ku-becki executed a loan modification agreement with FNBJ. This agreement released Ku-becki, his spouse, his children and their spouses from all prior obligations to FNBJ in exchange for a $6,000.00 down payment and a $127,000.00 promissory note accompanied by a first lien mortgage on the Edward and Stella Kubecki residence. The mortgaged residence used as security for this note was the same collateral that Edward and Stella Kubecki used to secure the May 1987 loan. This agreement failed to reserve FNBJ’s rights of recourse against the Debtors, although an amended agreement executed September 2nd of that year attempted to reserve those rights. The Debtors were offered a similar loan modification agreement by FNBJ, but found the terms unacceptable and refused the offer. The Kubecki loan modification agreement was negotiated without the consent of the Debtors.

A dispute has arisen concerning the value of the commercial property securing the 1979 loan. The parties have submitted appraisals that demonstrate a substantial dispute with FNBJ as to value. The Debtors’ appraiser submitted a fair market value of $560,000.00 for the commercial property. FNBJ’s appraiser valued the property at $208,000.00, significantly as a result of the inclusion of potential costs for an environmental clean-up not addressed in the Debtors’ appraisal.

An auction of machinery and equipment remaining on the premises of Brizer and Co. was held by FNBJ in November of 1993. The sale of these items yielded $34,079.00 which was applied to partial satisfaction of the Debtors’ obligation to FNBJ. (See Transcript dated March 15, 199k cd P- 9 and Plaintiffs Exhibit No. 11). An additional $18,285.00 was credited to the Debtors’ loan through rental payment on the commercial property paid directly to FNBJ.

The salient issue is whether a loan modification agreement signed by the Ku-beekis, as co-guarantor and co-maker of the above mentioned loans, without the consent of the other co-guarantors and co-makers, releases the Debtors from their obligations under the loan agreements. The Debtors argue that the loan modification agreement with the Kubeckis altered the use of the Kubecki’s residence as collateral, as well as the availability of the children’s residences, for the May 1987 loan, thus the Debtors should be discharged of all prior and current obligations since this was done without their consent.

Before commencing our analysis, it is necessary to summarize some well established common law principles of surety and guaranty law. When there are several sureties for the principal’s unpaid debt, each surety owes to his co-sureties a duty to pay his proportional share of their common debt. Schnader v. National Surety Co., 349 Pa. 599, 37 A.2d 753 (1944). “Should one co-surety have to pay more than his proportional share of the debt, one of the rights incidental to his co-suretyship is the right to enforce contribution from the other sureties for his excess.” In re Bailey’s Estate, 156 Pa. 634, 27 A. 560 (1893).

The Debtors rely on First Federal Savings and Loan Association of Pittston v. Reggie, 376 Pa.Super. 346, 546 A.2d 62 (1988) to support their argument. The Reggies cosigned a loan to enable their son and his spouse to own a home. When the son de[72]*72faulted, the bank sold the son’s property and applied the proceeds to satisfaction of a junior lien on the property instead of satisfying the senior lien eo-signed by the Reggies. The Reggie court concluded that the bank selectively satisfied a junior lien on the mortgaged property which violated their duty to the surety on the first mortgage. The decision of the court to discharge the surety on the senior lien was its remedy for the violation of the bank’s duty as a lender. In the case at bar, any release the bank gave to the Kubeeld family has not been proven to have increased the exposure of the Debtors since no evidence has been offered as to value of the Kubecki family assets prior to the modification.

The Debtors also rely on Federal Deposit Ins. Corporation v. Steinman, 53 F.Supp. 644 (E.D.Pa.1943), to support their position. The court in Federal Deposit provided a complete discharge to the unreleased party in a mortgage loan where nearly all the property subject to the mortgage has been released to one of two mortgagors. The unreleased mortgagor was left with no collateral with which to secure his loan, thus increasing his risk of loss considerably. The court concluded that a mortgagee may not release any portion of the mortgaged land in a way that would destroy or impair its value as security for the debt, absent the consent of the mortgagor, without forfeiting its rights to seek a deficiency against the unreleased party. Federal Deposit, supra at 647. While the situation in

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Bluebook (online)
191 B.R. 69, 28 U.C.C. Rep. Serv. 2d (West) 938, 1995 Bankr. LEXIS 1949, 1995 WL 791210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bahara-pamb-1995.