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GE CAPITAL MORTG. SERVS. v. PINNACLE MORTG. INV. C

May 9, 1995

GE CAPITAL MORTGAGE SERVICES, INC.
v.
PINNACLE MORTGAGE INVESTMENT CORP., SANDRA STEVENS-MILLER, and ALBERT A. MILLER, III



The opinion of the court was delivered by: CAHN

 Cahn, C.J.

 May 9, 1995

 Plaintiff GE Capital Mortgage Services, Inc. ("GE Capital") brought this action against the Pinnacle Mortgage Investment Corporation ("Pinnacle"), Sandra Stevens-Miller, and Albert A, Miller, III (collectively, the "defendants"). GE Capital claims that the defendants have failed to make payments as required by the parties' loan agreement. This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Currently before the court is GE Capital's motion for summary judgment on its breach of guaranty claim.

 I. Background

 Pinnacle was a licensed mortgage broker with offices in Pennsylvania and New Jersey. Sandra Stevens-Miller and Albert A. Miller, III (the "Miller Defendants" or "Guarantors") are Pinnacle's only shareholders.

 As a mortgage broker, Pinnacle loaned money to home buyers. Pinnacle obtained the money which it lent to these home buyers by borrowing from certain creditors known as "warehouse lenders." These warehouse loans were secured by the mortgage notes and mortgages which Pinnacle received from its customers.

 On July 14, 1993, Pinnacle, as borrower, Cooper River Funding Inc. ("Cooper"), as lender, and GE Capital, as agent, executed a Warehouse Credit Agreement ("Credit Agreement"), and Pinnacle and GE Capital executed a Warehouse Security Agreement (the "Security Agreement") (collectively, the "Credit Documents"). Pursuant to the Credit Documents, Cooper extended a secured Line of Credit for $ 10 million to Pinnacle. This Line of Credit was subsequently increased to $ 15 million.

 In addition to being secured by Pinnacle's mortgages, Pinnacle's obligations were secured by the Miller Defendants' personal guaranties (the "Guaranties"). The Guaranties provide in pertinent part:

 
1. The Guarantor hereby absolutely and unconditionally guarantees to Lender its successors and assigns, and its agent, GE Capital Mortgage Services, Inc. ("Agent") the prompt and unconditional payment of (i) the total amount of principal advanced from time to time under the Credit Agreement, (ii) all interest, costs, charges, expenses and reasonable attorney's fees payable in connection with the Credit Agreement as the same shall become due and payable (whether as stated maturity, by acceleration or otherwise) and (iii) all other Obligations of any kind owing from time to time by the Borrower under the terms of any Credit Document.
 
* * * *
 
4. The liability of the Guarantor under this Agreement is absolute and unconditional, without regard to the liability of any other person, and shall not in any manner be affected by reason of any action taken or not taken by the Lender or Agent, which action or inaction is herein consented and agreed to, nor by the partial or complete unenforceability or invalidity of any other guaranty or surety agreement, pledge, assignment or other security for any of the Obligations. No delay in making demand on the Guarantor for satisfaction of Guarantor's liability hereunder shall prejudice the Lender's and Agent's right to enforce such satisfaction. All of the Lender's and Agent's rights and remedies shall be cumulative and any failure of Lender or Agent to exercise any right hereunder shall not be construed as a waiver of the right to exercise the same or any other right at any time, and from time to time, thereafter.
 
5. The Guarantor hereby waives (i) all defenses to, and all setoffs, counterclaims and claims or recoupment against, the Obligations that may at any time be available to the Borrower and (ii) all other defenses under any applicable law that would, but for this clause (ii), be available to the Guarantor as a defense against or a reduction or limitation of its liabilities and obligations hereunder. This Guaranty is a primary obligation of the Guarantor.
 
(See Affidavit of James C. Zollo, Exhibit 5 and 6, PP 1, 4, and 5).
 
Cooper assigned all of its right, title and interest in the Line of Credit under the Credit Documents to GE Capital on September 13, 1994.
 
GE Capital contends that, as early as May 2, 1994, Pinnacle misrepresented the number of eligible mortgage loans securing the Line of Credit, and that only $ 2 million of the $ 10.6 million loaned to Pinnacle was secured by eligible mortgage loans. Furthermore, GE Capital alleges that many of the mortgage loans held by Pinnacle were sold, and that the proceeds of such sales were not forwarded to GE Capital as required by the Credit Documents. GE Capital claims, therefore, that Pinnacle breached the terms of the Credit Agreement, entitling GE Capital to immediate payment of all outstanding funds under the Credit Agreement, plus interest.
 
Defendants, however, contend that GE Capital was never deceived with regard to the status of its loan, and that, by the end of September 1994, GE Capital had full knowledge of Pinnacle's financial affairs. In support of this contention, defendants allege that, in September of 1994, Sandra Stevens-Miller informed Jack Welch, CEO of GE Capital, that Pinnacle was in financial trouble and would be unable to satisfy its obligations under the Credit Agreement. According to defendants, GE Capital expressed a willingness to restructure the debt, and began negotiations with the defendants. As part of these negotiations, GE Capital demanded, and received, the right to conduct a thorough due diligence of the defendants.
 
More importantly, defendants contend that the parties orally agreed to a new contract (the "Oral Agreement") which superseded the Credit Agreement. Defendants have submitted two documents, entitled the Restated Credit and Security Agreement (the "Restructuring Agreement") and Preferred Stock Purchase Agreement (the "Stock Purchase Agreement"), to support their contention. Defendants claim that these unsigned documents were drafted by counsel for GE Capital, and contain all terms upon which the parties orally agreed.
 
GE Capital has filed a five count complaint against the defendants. Because an involuntary bankruptcy petition has been filed against Pinnacle, the case against Pinnacle automatically has been stayed. See 11 U.S.C. § 362. Currently before the court is GE Capital's motion for summary judgment and immediate entry of final judgment with regard to Count Two of its Complaint, a breach of Guaranty claim against the Miller Defendants (the "Guaranty Claim"). In ruling on this motion for summary judgment, the court will apply the now-familiar summary judgment standard. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1308 (3d Cir. 1995).
 
II. The Guaranty Claim
 
The Guaranties executed by the Miller Defendants provide that they are to be governed by New York law, without regard to traditional choice of law principles. Such contractual choice of law provisions are generally enforceable. Kruzits v. Okuma Machine Tool, 40 F.3d 52, 55 (3d Cir. 1994); Cottman Transmission Systems v. Melody, 869 F. Supp. 1180, 1184 (E.D. Pa. 1994); Smith v. Commonwealth National Bank, 384 Pa. Super. 65, 557 A.2d 775, 777 (Pa. Super. 1989), appeal denied, 524 Pa. 610, 569 A.2d 1369 (Pa. ...

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