J-S27002-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 SKW-B ACQUISITIONS SELLER C, LLC, IN THE SUPERIOR COURT AS SUCCESSOR TO FS RIALTO 2019-FL OF PENNSYLVANIA 1 HOLDER, LLC
Appellant
v.
STOBBA RESIDENTIAL ASSOCIATES, L.P. AND STOBBA ASSOCIATES, L.P.
Appellees No. 73 EDA 2022
Appeal from Order dated December 13, 2021 In the Court of Common Pleas of Philadelphia County, Civil Division, at No. 210501951 _____________________________________________________________
SKW-B ACQUISITIONS SELLER C, LLC, IN THE SUPERIOR COURT AS SUCCESSOR TO FS RIALTO 2019-FL OF PENNSYLVANIA 1 HOLDER, LLC
Appellee
STOBBA RESIDENTIAL ASSOCIATES, L.P. AND STOBBA ASSOCIATES, L.P.
Appellants No. 101 EDA 2022
Appeal from Order dated December 13, 2021 In the Court of Common Pleas of Philadelphia County, Civil Division, at No. 210501951
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY STABILE, J.: FILED MARCH 1, 2023
FS-Rialto 2019-FL 1 Holder, LLC brought this action for breach of
contract against Stobba Residential Associates, L.P. and Stobba Associates
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(collectively “Borrower”), alleging that Borrower defaulted under a promissory
note and loan agreement. SKW-B Acquisitions Seller C, LLC (“Lender”) is the
successor in interest to FS-Rialto 2019-FL 1 Holder, LLC. Borrower is the
owner of residential and commercial properties at 200-210 Lombard Street in
Philadelphia. Lender moved for appointment of a receiver, asserting, inter
alia, that Borrower failed to make monthly payments on the note and
instructed Borrower’s commercial tenants to pay rent into Borrower’s bank
account instead of the account specified in the loan agreement. On December
13, 2021, following two evidentiary hearings, the court issued a memorandum
and order in which it declined to appoint a receiver. The court did, however,
order alternative relief by directing Borrower to instruct commercial tenants
to pay ongoing rents into the account specified in the loan agreement and
instructing Borrower to account for all rents deposited into Borrower’s account.
Lender appeals the portion of the order denying its motion for
appointment of a receiver. Borrower cross-appeals the portion of the order
granting Lender alternative relief.1 For the reasons provided below, we vacate
the court’s order and remand for further proceedings.
On August 2, 2019, Borrower executed a loan agreement with FS CREIT
Originator LLC (“Original Lender”) evidencing a $24,250,000 loan to Borrower.
1The caption of Borrower’s notice of appeal listed FS-Rialto 2019-FL 1 Holder, LLC as Appellee. The proper appellee in this appeal should be SKW-B Acquisitions Seller C, LLC, successor in interest to FS-Rialto 2019-FL 1 Holder, LLC. We have corrected the caption accordingly in Borrower’s appeal at 101 EDA 2022. 2 J-S27002-22
The loan was evidenced by a promissory note dated August 2, 2019 that
Borrower executed in favor of Original Lender. The Loan is secured by an
open-end mortgage, assignment of leases and rents, security agreement and
fixture filing, dated July 30, 2019 and effective as of August 2, 2019, from
Borrower to Original Lender. The mortgage created a lien in favor of Original
Lender on multiple residential condominium unit numbers in the Headhouse
Flats Condominium located at 200-210 Lombard Street, Philadelphia,
Pennsylvania (“the Property”) and on commercial condominium unit B in the
Property.
In connection with the Loan, Borrower executed a cash management
agreement with Wells Fargo Bank, National Association (“Wells Fargo”), and a
deposit account control agreement (“DACA”) with the Original Lender and
Wells Fargo. We will refer to the loan agreement, note, mortgage, cash
management agreement, and DACA as the “Loan Documents.”
Eric Blumenfeld is Borrower’s sole principal. Tenants at the Property
include Giant Food Stores, Wawa, Rita’s Water Ice, South Philadelphia
Pediatrics, LLC, Supercuts, TD Bank, and Target Park U.S. Inc.
The loan agreement requires that “the Monthly Debt Service Payment
Amount shall be paid by Borrower to Lender on each Payment Date.” Loan
Agreement, § 2.2.3. The loan agreement defines monthly debt service
payment amount as meaning, “with respect to each Payment Date, an amount
equal to all interest that is scheduled to accrue on the Outstanding Principal
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Balance during the Accrual Period in which each such Payment Date occurs.”
Loan Agreement, § 2.2.3.
Pursuant to Section 1.1 of the mortgage, Borrower granted a security
interest in the Property. Pursuant to Section 1.1(f) of the mortgage, Borrower
also granted Lender a security interest in, inter alia, “all leases, subleases,
rental agreement, letting, licenses, concessions and other agreements,
whether or not in writing, affecting the use, enjoyment or occupancy of the
Premises (“Leases”) … and all rents, additional rents, payments in connection
with any termination, cancellation or surrender of any Lease, revenues, issues
or profits (“Rents”).” Mortgage, Exhibit C, Section 1(f).
To protect the security interest, the Loan Documents have several
provisions requiring the deposit of rents and other revenues generated by the
Property into specific accounts created and held for the benefit of Lender.
Specifically, pursuant to the loan agreement, the DACA, and the cash
management agreement, Borrower was required to have all Tenants deposit
Rents into the DACA account at Wells Fargo. Rents in the DACA account would
then be disbursed daily into Lender’s cash management account at Wells
Fargo. See Loan Agreement, § 6.1.1; DACA §§ 1(a)-(b) and Sections 2-5;
Cash Management Agreement § C and §§ 1(a) and 7-8. Section 6.1.2 of the
loan agreement requires Borrower to deliver each commercial tenant a notice
instructing it to pay Rent into the appropriate account. Section 4.1.4 of the
loan agreement requires that Borrower provide monthly reports of Rents
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collected from tenants and monthly operating statements of, inter alia, gross
income, operating expenses and capital expenses.
Section 7.1(i) of the Loan Agreement provides that it is an event of
default under the Loan “if any portion of the Debt is not paid on or before the
date same is due and payable or if the entire Debt is not paid on or before the
Maturity Date.” Section 7.1(xii) of the loan agreement provides that it is an
event of default under the loan “if Borrower shall continue to be in default
under any other term, covenant or condition of this Agreement, the Note, the
Security Instrument or the other Loan Documents not specified above [such
as the obligation to instruct Tenants to deposit Rents into the Cash
Management Account] for more than (y) ten (10) days after notice from
Lender, in the case of any default which can be cured by the payment of a
sum of money, or (z) thirty (30) days after notice from Lender, in the case of
any other default.”
Under Section 8.1(g) of the Mortgage, Borrower agreed that upon an
Event of Default,
Lender may take such action, without notice or demand, as it deems advisable to protect and enforce its rights against Borrower and in and to the Property, including, but not limited to, the following actions, each of which may be pursued concurrently or otherwise, at such time and in such order as Lender may determine, in its sole discretion, without impairing or otherwise affecting the other rights and remedies of Lender . . . apply for the appointment of a receiver, trustee, liquidator or conservator of the Property, without notice and without regard for the adequacy of the security for the Debt and without regard for the solvency of Borrower, any Guarantor or of any person, firm or other entity liable for the payment of the Debt.
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Section 9.19 of the mortgage provides, “Borrower hereby waives the
right to assert a counterclaim, other than a compulsory counterclaim, in any
action or proceeding brought against it by Lender or its agents.” In addition,
Section 9.15 of the mortgage provides:
Any assignee of Lender’s interest in and to this Agreement, the Note and the other Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower may otherwise have against any assignor of such documents, and no such unrelated counterclaim or defense shall be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents and any such right to interpose or assert any such unrelated offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.
The loan and loan documents were assigned several times between
2019 and 2021 and ultimately were assigned to Lender.
On May 21, 2021, Lender filed an action for breach of contract against
Borrower alleging that Borrower defaulted on the loan by (1) failing to make
monthly payments required under the loan documents and (2) diverting its
tenants’ rents into its own account at TD Bank instead of depositing rents into
the DACA account specified in the loan documents. On June 4, 2021, Lender
filed a motion seeking appointment of a receiver. Lender did not request any
other form of relief in its motion. Borrower filed an answer along with
counterclaims asserting that Lender committed the first material breach of
contract by causing one of Borrower’s tenants, Giant Food Stores, to stop
paying rent to Borrower. In response to Borrower’s answer and
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counterclaims, Lender alleged that Section 9.15 of the mortgage precluded
Borrower from raising a counterclaim that Lender committed the first material
breach, and Section 9.19 precluded Borrower from raising a defense of first
material breach against an assignee such as Lender.
The trial court held two days of evidentiary hearings on Lender’s petition
for appointment of a receiver. Lender furnished evidence that Borrower failed
to make loan payments in all but one month between December 2020 and
November 2021, and that at Borrower’s direction, two of Borrower’s tenants
(WaWa and TD Bank) paid rent into Borrower’s operating account instead of
the DACA account specified in the loan documents. Other tenants—Target
Park, Supercuts, Rita’s and South Philadelphia Pediatrics—paid less than the
full rent due for several months. During 2021, however, Borrower transferred
over $112,000.00 from its operating account into an account controlled by
Borrower’s president. Borrower also made other payments out of the
operating account totaling almost $100,000.00 without divulging the reason
for these payments. Appellee’s Brief at 18-20 (summarizing evidence with
record citations).
At the conclusion of the hearings, the court asked Lender what other
remedies it proposed besides appointment of a receiver, N.T., 11/18/21, at
42, even though a receivership was the only relief that Lender sought in its
motion. Lender proposed that the court appoint a receiver or, in the
alternative, order Borrower to instruct its tenants to deposit all rents into the
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DACA account and direct Borrower to provide an accounting of all rents that
Borrower deposited into its own account at TD Bank. Subsequently, Lender
submitted proposed findings of fact and conclusions of law that made the same
requests for a receiver or alternative relief.
On December 13, 2021, the trial court issued a memorandum and order
denying Lender’s motion for a receiver. Although the court found that
Borrower failed to make monthly payments, it stated that appointment of a
receiver is a “drastic” remedy, and that Lender had “fallen extremely short”
of proving any need for a receiver. Trial Court Memorandum, 12/13/21, at 6.
With regard to Lender’s claim that Borrower had diverted all rents, the court
claimed that Borrower had paid part of the management fees due under the
loan documents. In addition, the court observed, “[Borrower] contends that
these payments are excused because of [Lender’s] breach on several fronts.
Reasons that debt service has not been paid is to be determined by another
court hearing and [is] the subject of another court proceeding.” Id.
Although the court denied Lender’s request for a receiver, it accepted
Lender’s proposed alternate remedy because it “recogniz[ed] the fundamental
unfairness of [Borrower] not paying the interest due and sporadically
providing financial and other information that is required under the loan
documents while simultaneously having the tenants pay rent into [Borrower’s]
operating account.” Id. at 7. The court entered the following order:
[Borrower shall]
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a. Within 20 business days of the docketing of this Order, instruct all Tenants to pay Rents pursuant to the requirements of the Loan Agreement, the Deposit Account Control Agreement (the “DACA”), and the Cash Management Agreement (including but not limited to requiring the Tenants pay their Rents into the DACA Account at Wells Fargo), and provide proof to [Lender] and the Court that this instruction has been given;
b. Within 30 business days of the docketing of this Order, provide [Lender] and the Court an accounting of all Rents paid directly into [Borrower’s] operating account at TD Bank since January 1, 2021 (the “Accounting”), and within fifteen (15) business days of submission of the Accounting, transfer all such Rents previously paid to [Borrower’s] operating account at TD Bank into the Cash Management Account at Wells Fargo, and provide proof that this transfer has been completed;
c. For the month of October 2021 and forward, provide [Lender] with the financial information required by Section 4.1.4 of the Loan Agreement, as well as monthly operating activity reports regarding the rent collections, leasing activity, and the most current rent rolls to be provided on the fifteenth (15th) day of each month (starting with December 15, 2021) regarding the rent collections, leasing activity, and rent roll for the prior month.
Order, 12/13/21.
Borrower timely appealed the order to this Court, and Lender timely
cross-appealed. One day after Lender’s appeal, the court granted Borrower’s
motion for stay of the court’s order pending the outcome of the appeals.
Lender and Borrower complied with Pa.R.A.P. 1925, but the court did not file
a Pa.R.A.P. 1925 opinion.
On January 24, 2023, during the pendency of these appeals, the court
entered an order granting Lender’s motion for summary judgment on
Borrower’s counterclaims on the ground that Section 9.19 of the mortgage
prohibited Borrower from raising these counterclaims in this action.
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Borrower raises the following issues in its appeal:
1. Did the trial court err as a matter of law and/or abuse its discretion by awarding [Lender] relief where, as the trial court found, [Lender] (i) “has fallen extremely short of meeting its burden in appointing a receiver,” (ii) “did not present evidence of any emergency, loss, waste, injury, dissipation of the property or abuse of funds”, and (iii) its allegations of default based upon the “divergence and misappropriation of rented from the Property” were “incorrect, inaccurate, and unproven”? 2. Did the trial court err as a matter of law and/or abuse its discretion by awarding [Lender] equitable relief where [Lender] has adequate remedies at law available? 3. Did the trial court err as a matter of law and/or abuse its discretion in ordering [Borrower] to direct the tenants to pay their rents to the DACA Account and ordering appellants to transfer all rents previously paid to it into the Cash Management Account on the grounds that (i) such relief constitutes prejudgment attachment which is not permitted under Pennsylvania law, (ii) even if it was permitted, such relief is not warranted given that (a) there is no allegation/claim of fraud and (b) the trial court expressly found that [Lender] “did not present evidence of any emergency, loss, waste, injury, dissipation of the property or abuse of funds”, and (iii) awarding such relief substantially interferes with appellants’ ability to effectively manage the subject property and would negatively impact the tenants of the property? 4. Did the trial court err as a matter of law and/or abuse its discretion by entering an order, in the nature of a mandatory injunction, compelling [Borrower’s] performance under loan documents where (i) there exists an adequate remedy of law for appellee, (ii) this is not a “clear case” for contract enforcement, (iii) [Lender’s] averments of default under the loan documents is the ultimate issue in the case, and (iv) [Borrower’s] performance under the loan documents was/is excused by [Lender’s] pre- occurring material breaches of the loan documents? Borrower’s Brief at 4-5. Lender raises the following issues in its cross-appeal:
1. Whether the appointment of a receiver was warranted, where the governing loan documents specifically provide for the
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appointment of a receiver upon default, and the Borrower admitted to payment default. 2. Whether the appointment of a receiver was warranted, where the Borrower admitted to diverting Rents and other proceeds from the Property to the Borrower’s own operating account rather than the Cash Management Account as required, thereby threatening the Lender’s security interest in the Property and Rents? 3. Whether the appointment of a receiver was warranted based upon the Borrower’s mismanagement of the Property?
4. Whether in light of the Borrower’s demonstrated and admitted payment default, and the recognized “fundamental unfairness of [Borrower] not paying the interest due and sporadically providing financial and other information that is required under the loan documents while simultaneously having the tenants pay rent into [Borrower’s] operating account,” the trial court appropriately exercised its discretion in awarding alternative relief? Lender’s Brief at 6-7. In essence, Lender appeals the portion of the order denying its motion
for receivership, and Borrower appeals the portion of the order requiring the
alternate remedies directing ongoing deposits of rents into the DACA account,
an accounting, and monthly financial reports. Pa.R.A.P. 311(a)(2) provides
that an interlocutory appeal may be taken as of right from “an order
confirming . . . or refusing to confirm [a] . . . receivership or similar matter
affecting the possession or control of property,” except for matters arising in
divorce proceedings not relevant here. Under Rule 311(a)(2), we have
jurisdiction over Lender’s appeal as one from an order refusing to confirm a
receivership, and we have jurisdiction over Borrower’s appeal as one from an
order affecting the possession or control of property.
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At the outset, we vacate the court’s determination to award alternative
relief. The only relief requested in Lender’s motion was an order for a
receivership. Therefore, the court should have limited its decision to granting
or denying this request. By asking Lender for alternative remedies during the
hearings, the court deprived Borrower of its right to file written objections to
alternative relief in advance of the hearings. More importantly, the court failed
to explain what doctrine it applied—equitable, legal or otherwise—as the basis
for awarding relief. Perhaps the court intended to award Lender specific
performance under the Loan Documents, but we cannot tell for certain,
because there was no claim of specific performance before the court, and
because the court’s justification for its decision, “fundamental fairness,” is
untethered to any specific principle. We hold that there is no proper
foundation in the record for alternative relief.
Turning to the court’s decision to deny a receiver, our first step is to
determine the proper standard of review. Lender contends that it is
contractually entitled to a receiver under the terms of the loan agreement;
Borrower contends that common law standards for appointment of a receiver
apply. We agree with Borrower that common law standards apply.
At common law, the appointment of a receiver is a “severe, and may be
termed an heroic, remedy,” and “the court . . . will act with the utmost caution”
before making this appointment. McDougall v. Huntingdon & Broad Top
R. & C. Co., 143 A. 574, 577-78 (Pa. 1928). Receivership of a solvent
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corporation is a “drastic remedy,” and should only be granted when “(1) the
right to a receivership is free from doubt, and (2) a receivership is clearly
required by the facts and circumstances and equities of the case.” Tate v.
Phila. Transp. Co., 190 A.2d 316, 317 (Pa. 1963). Appointment of a receiver
“is not to be undertaken lightly,” and “the decision to appoint is within the
sound discretion of the trial court.” Abrams v. Uchitel, 806 A.2d 1, 8 (Pa.
Super. 2002). Despite this demanding standard, the trial court has the
discretion to appoint a receiver when assets are wasted or dissipated, Hankin
v. Hankin, 493 A.2d 675, 677 (Pa. 1985), or when a borrower defaults on its
loan payments. See Metropolitan Life Insurance Co. v. Liberty Center
Venture, 650 A.2d 887, 890-91 (Pa. Super. 1994) (mortgagee entitled to
appointment of receiver where mortgagor unilaterally made payments at
interest rate of 10% instead of 14½ and 15% required under notes).
Lender argues that Section 8.1(g) of the mortgage governs instead of
common law. Section 8.1(g) states that “[u]pon the occurrence of any Event
of Default, Borrower agrees that Lender may . . . apply for the appointment
of a receiver, trustee, liquidator or conservator of the Property . . .” [emphasis
added]. Lender reads this text too expansively. “May apply” merely entitles
Lender to request appointment of a receiver in the event of default, but it does
not automatically entitle Lender to appointment of a receiver without more.
The court retains the discretion to grant or deny Lender’s request. Authority
relied upon by Lender does not require a different result. In three of the cases
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cited by Lender, the parties expressly agreed that in the event of a default,
the lender “shall have” the right “to apply [for] . . . and obtain” a receiver, or
“shall be entitled to” appointment of a receiver, or are entitled to a receiver
“as a matter of right,” materially different language from the text in this case.
See Metropolitan Life Ins. Co., 650 A.2d at 891 (“If an Event of Default
shall have occurred and be continuing, Mortgagee, upon application to a court
of competent jurisdiction, shall be entitled . . . to the appointment of a
receiver(s) . . . ”); Wells Fargo Bank, N.A. v. InSite Dunmore (O’Neil),
LLC, 2015 WL 5074421, *5 (CCP Lackawanna Cty. 2015) (mortgage entitled
lender to appointment of receiver “as a matter of right” and borrower
“irrevocably consent[s]” to appointment); City Nat. Bank v. 728 Market
Street, LP, 2012 WL 781185, *5 (CCP Philadelphia Cty. 2012) (“The Lender
[City National Bank] shall have the absolute and unconditional right to apply
to any court having jurisdiction and obtain the appointment of a receiver or
receivers of the Property”). In the fourth case, MSCI 2006-IQ11 Logan
Boulevard Ltd. P’ship v. Greater Lewistown Shopping Plaza, L.P., 2017
WL 485958 (M.D. Pa. 2017), the loan agreement provided that “[Lender] may
apply for the appointment of a receiver to manage and operate the property,”
but it also provided that the borrower “consents, to the extent permitted by
applicable law, to the appointment of a receiver.” Id. at *2; see also City
Nat. Bank, 2012 WL 781185, at *5 (borrower “irrevocably consent[s]” to
appointment). Here, in contrast, Lender does not identify any text in which
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Borrower consents to the appointment of a receiver without more; nor can we
find any. The final two cases cited by Lender are unpublished decisions of this
Court from 2014 and 2016. The Rules of Appellate Procedure prohibit us from
taking into account any unpublished decision from this Court filed before May
2, 2019. Pa.R.A.P. 126(b).
Without a contractual entitlement or right to have a receiver appointed
here, Lender may still seek appointment of a receiver but bears the burden of
satisfying common law standards to obtain this relief. Although there are no
citations to relevant law in the trial court’s memorandum, it appears that the
court applied common law standards to this case, given its use of such terms
as “waste, injury, dissipation of the property or abuse of funds.” Trial Court
Memorandum at 6; see Hankin, 493 A.2d at 677 (waste or dissipation of
assets provides cause for appointment of receiver). Several aspects of the
court’s decision, however, create concern that it misapplied these standards.
First, it appears that the court misinterpreted the evidence. The court
stated that Lender failed to prove the need for a receiver because it could not
demonstrate that Borrower diverted or mismanaged funds. Borrower, the
court continued, did not divert or mismanage funds, because it “presented
testimony of a sum of partial management fees being paid to the manager,
EB Management Corp. (“EBRM”), for providing management services at the
Property.” Trial Court Memorandum at 6. The evidence demonstrates,
however, that EBRM is solely owned by Blumenfeld, Borrower’s sole principal.
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Tr., 11/18/21, at 19. Between January and September 2021, Borrower paid
EBRM $112,686.13 in management fees. Tr. 11/12/21, at 31-33. By paying
EBRM, Blumenfeld effectively paid himself at the same time he failed to pay
the debt service owed on the loan. Tr. 11/12/21, at 36-37 (“Q: You’re paying
the alleged arrearages to your management company, but not your lender,
correct? A: (No answer.) Q: Is that correct? A: That is correct”). This evidence
suggests that Borrower diverted monies to a company owned by its principal
instead of making payments towards the loan.
Next, there appears to be an inconsistency in the court’s analysis. On
page 6 of its memorandum, the court denied a receivership because it found
no abuse of funds or diverting of rents by Borrower. Trial Ct. Memorandum
at 6. On page 7, however, the court found that Borrower refrained from
paying the loan while “simultaneously having the tenants pay rent . . . into
[Borrower’s] operating account,” id. at 7, text which indicates that Borrower
intentionally failed to pay the loan while simultaneously diverting or
mismanaging rents. Additionally, on page 6, the court denied a receivership
because it found that Borrower might have viable defenses, such as
Borrower’s contention that Lender committed the first material breach by
interfering with Borrower’s business relationship with Giant. Id. at 6. On
page 7, however, the court “recogniz[ed] the fundamental unfairness” of
Borrower not paying the loan. Id. at 7. It is difficult to harmonize the
determination that non-payment by Borrower is “fundamentally unfair” with
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the determination that Borrower might have meritorious defenses for non-
payment.
Next, the court’s statement that Lender failed to present evidence of the
proposed receiver’s qualifications or course of action is belied by the record.
Lender’s petition (1) recommended Stephen Resinski and his organization,
Colliers International, as the receiver, (2) listed Resinski’s qualifications, (3)
proposed a plan for improving tenant satisfaction, maintaining and upgrading
the Property, reducing costs, and otherwise improving the operation of the
Property, and (4) submitted a schedule of Resinski’s and Colliers’ proposed
fees. Lender’s Petition For Appointment of Receiver, ¶¶ 57-58 & exhibits 5,
6.
Finally, the court’s decision on January 24, 2023 to dismiss Borrower’s
counterclaims calls into question whether Borrower has any viable defenses
to Lender’s action, since Borrower’s defenses appear to rest on the same
theory as its counterclaims (namely, Lender committed the first material
breach).
These concerns require remand for further proceedings as to whether
appointment of a receiver is warranted under common law.
Order vacated. Case remanded for further proceedings in accordance
with this memorandum. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/01/2023