Silversword Capital v. Wilde, H.

CourtSuperior Court of Pennsylvania
DecidedApril 22, 2015
Docket2054 EDA 2014
StatusUnpublished

This text of Silversword Capital v. Wilde, H. (Silversword Capital v. Wilde, H.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Silversword Capital v. Wilde, H., (Pa. Ct. App. 2015).

Opinion

J-S03038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SILVERSWORD CAPITAL INVESTMENTS, IN THE SUPERIOR COURT OF LLC PENNSYLVANIA

Appellee

v.

H. LARRY WILDE

Appellant No. 2054 EDA 2014

Appeal from the Order July 8, 2014 In the Court of Common Pleas of Montgomery County Civil Division at No(s): No. 2014-03720

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED APRIL 22, 2015

H. Larry Wilde appeals from the order entered July 8, 2014, in the

Montgomery County Court of Common Pleas, denying his petition to strike or

open the confessed judgment entered against him by Silversword Capital

Investments, LLC (“Silversword”). The judgment, in the amount of

$865,996.06, was confessed against Wilde based on a commercial guaranty

he provided as collateral in satisfaction of his share of a $1.1 million loan

provided to Moorestown Daycare Associates, LLC (“MDA”). On appeal, Wilde

argues the trial court erred in refusing to grant his petition to strike or open

the default judgment. For the reasons set forth below, we affirm.

The facts underlying this appeal are summarized by the trial court as

follows: J-S03038-15

On or about March 20, 2001, Harleysville National Bank and Trust Company, successor by merger to Millennium Bank (“Harleysville”), made a loan to MDA, where it advanced to MDA the principal amount of $1,100.00.00. On or about October 5, 2007, Harleysville and MDA entered into a Note Modification Agreement, the purpose of which was, among other things, to re-advance the principal amount originally loaned, amend the interest rate, extend the maturity date and add certain financial covenants.

In conjunction with the Note Modification Agreement, and as additional security for the amounts loaned, Wilde entered into the Guaranty, whereby he absolutely and unconditionally guaranteed full and punctual payment and satisfaction of his “Share of the Indebtedness” of MDA to Harleysville. The Guaranty provides that Harleysville and its successors and assigns can enforce the Guaranty against Wilde, as guarantor, even when remedies against anyone else obligated to pay for the indebtedness or against any collateral securing the indebtedness, the guaranty or any other guaranty of indebtedness has not been exhausted. The Guaranty further defines the phrase “Guarantor’s Share of the Indebtedness” to mean:

an amount not to exceed Five Hundred Fifty Thousand & 00/100 Dollars ($550,000.00) of all the principal amount, interest thereon to the extent not prohibited by law, and all collection costs, expenses and attorneys’ fees whether or not there is a lawsuit, and if there is a lawsuit, any fees for costs for trial and appeals.

In addition to guaranteeing the full and punctual payment and satisfaction of his share of the indebtedness to Harleysville, the Guaranty also contained a confession of judgment provision.

On February 28, 2013, MDA and First Niagara Bank, N.A. (“First Niagara”), as successor to Harleysville, entered into another Note Modification Agreement, wherein it was agreed that, as of February 21, 2013, the outstanding principal balance of the Note was $970,641.49, plus accrued interest. As part of this latest modification, MDA agreed that the maturity date under the Note was extended to May 20, 2013 and further agreed that all collateral and guaranties securing or supporting the Note remained in full force and effect and as valid collateral and support for the Note. Within the February 28, 2013 Note

-2- J-S03038-15

Modification Agreement, Wilde also executed a “Consent and Reaffirmation of Guaranty and Suretyship Agreement,” whereby he consented to the terms of the February 28, 2013 Note Modification Agreement, agreed that his Guaranty remained in full force and effect, and reaffirmed and restated his absolute and unconditional guaranty of his Share of the Indebtedness as contained in the October 1, 2007 Guaranty. Specifically, the Consent and Reaffirmation contained language reaffirming the confession of judgment clause in the Guaranty. The maturity date set forth in the February 28, 2013 Note Modification Agreement was thereafter extended to September 1, 2013.

As of the September 1, 2013 maturity date, the principal balance of $955,830.30 along with accrued interest had not been paid to First Niagara by MDA. … [Furthermore, pursuant to the terms of the Note, as] of the date the Complaint was filed, First Niagara had incurred reasonable costs, expenses and counsel fees pertaining to the indebtedness in the amount of $20,335.77.

MDA defaulted in its obligations under the Note by failing to pay the principal and accrued interest due thereunder by the September 1, 2013 maturity date. On December 20, 2013, First Niagara assigned all of its rights, title and interest in and to the loan and accompanying loan documents made to MDA, including the Note and Guaranty, to plaintiff, Silversword. Silversword proceeded to supply Wilde and MDA, respectively, with Notices of Default on January 20, 2014.

Trial Court Opinion, 7/29/2014, at 1-4.

Thereafter, on February 19, 2014, Silversword filed a complaint in

confession of judgment in the amount of $865,996.06. On March 17, 2014,

Wilde filed a petition to strike or open the confessed judgment. After

Silversword filed a response, the trial court conducted a hearing on July 3,

-3- J-S03038-15

2014. Subsequently, on July 8, 2014, the court denied Wilde’s petition, and

this timely appeal followed.1

On appeal, Wilde contends the trial court erred in denying his petition

to strike or open the confessed judgment. Specifically, he argues the court

should have struck the judgment because (1) certain costs included in the

judgment were not expressly authorized by the warrant of attorney; (2) the

warrant of attorney was not restated in the modification agreement, but

rather, only incorporated by reference; and (3) the judgment included an

excessive amount for attorney’s fees. With regard to his request to open the

judgment, Wilde claims he filed the petition in a timely manner and asserted

several meritorious defenses. In particular, he argues he has “defenses,

set-offs and counterclaims against Silversword, and cross-claims against [his

partner in MDA, David J. Lisa], due to breach of fiduciary duties, usurpation

of business opportunity and tortious interference with prospective

contractual relations.” Wilde’s Brief at 24. He also contends that the same

reasons he proffered to strike the judgment, justify opening the judgment.

A petition to strike off or open a confessed judgment “appeals to the

equitable and discretionary powers of the trial court, and absent an abuse of

discretion or manifest error, we will not disturb its decision.” Courtney v.

____________________________________________

1 The trial court did not direct Wilde to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

-4- J-S03038-15

Ryan Homes, Inc., 497 A.2d 938, 941 (Pa. Super. 1985) (citations

omitted).

A confessed judgment will be stricken “only if a fatal defect or irregularity appears on the face of the record.” A judgment by confession will be opened if the petitioner acts promptly, alleges a meritorious defense, and presents sufficient evidence in support of the defense to require the submission of the issues to a jury.

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Silversword Capital v. Wilde, H., Counsel Stack Legal Research, https://law.counselstack.com/opinion/silversword-capital-v-wilde-h-pasuperct-2015.