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April 15, 2004.


The opinion of the court was delivered by: FRANKLIN VAN ANTWERPEN, District Judge


This case comes to us following a Judgment by Confession entered by this court in favor of Plaintiff sovereign Bank ("Plaintiff or "Sovereign Bank") and against Defendant Ana Catterton ("Defendant") on October 9, 2003. Catterton now moves to strike or open the judgment and to file an answer, counterclaim for damages, and affirmative defenses to the Judgment by Confession. Catterton objects to the Judgment by Confession principally on the grounds that Defendant obtained her guaranty on the loans in question in violation of the Equal Credit Opportunity Act ("ECOA"), 15 U.S.C. § 1691(a)(1). For the reasons stated below, we deny Catterton's motion in its entirety.

I. Factual Background

  From March 2000 to December 2002, Ana Catterton's husband, John Catterton, served as Chief Operating Officer for Stonecastle Holdings Corporation ("Stonecastle"), a holding company for Germantown Group, Inc., ("Germantown"), and Chief Operating Officer and director of Germantown. On November 5, 2001, Germantown obtained approval to refinance its secured debt through loans in the amount of $4.2 million*fn1 from Main Street Bank ("Main Street"), which was later acquired by Sovereign Bank on March 8, 2002. Main Street required that the loans to Germantown be secured by a guaranty from Stonecastle, which was executed on January 22, 2002, by Stonecastle President Moffette Tharpe, Jr., and Chief Financial Officer Terry J. Rush. In addition, a personal Guaranty and Suretyship Agreement was also executed on that day by Moffette Tharpe, Jr., and John Catterton and their spouses, Mary Tharpe and Ana Catterton.

  The parties disagree as to how Defendant Ana Catterton came to sign the personal Guaranty and Suretyship Agreement. According to Defendant, she was notified near closing that she would be required to execute a personal guaranty. Defendant avers that until that point in time, she had had no prior involvement in the loan process and was not provided with an explanation as to why her personal guaranty was required. In addition, she believes that Sovereign Bank did not conduct an investigation into her husband's or her own creditworthiness. Plaintiff sovereign Bank contends, however, that Catterton could not have been by surprised by the prospect of signing a Guaranty and Suretyship Agreement on January 22, 2002, because she had previously executed a Commitment Letter on November 12, 2001, which was intended to induce Main Street to approve the loans. This, Plaintiff argues, indicates that Defendant was not in any way forced to become a guarantor, but instead offered to do so in order to make Germantown a more attractive borrower. Plaintiff also denies that it had no knowledge of the Cattertons' creditworthiness, since it had on file a financial statement submitted by the couple in connection with a note issued on October 11, 2001.

  In April 2003, after Germantown defaulted on its loans, Sovereign Bank, successor in interest to Main Street, proposed a forbearance agreement in order to restructure the loans so that the parties would be able to repay them. The Cattertons refused to enter into this agreement and on September 5, 2003, Sovereign Bank filed a Complaint in Confession of Judgment against Ana Catterton. This court entered the Confession of Judgment against Ana Catterton on October 9, 2003.

 II. Standard of Review

  A motion to strike a confessed judgment may only be granted if defects or irregularities exist on the face of the record. See Resolution Trust Corp. v. Copley Qu-Wayne Assoc., 546 Pa. 98, 106 (1996). In reviewing a motion to strike a confessed judgment, the court may only look to the record "as filed by the party in whose favor the warrant is given, i.e. the complaint, and the documents which contain confession of judgment clauses." Id. If the record is self-sustaining and supports the judgment, the motion may not be granted. Id. Moreover, where a dispute exists as to the facts contained in the record, a motion to strike is not appropriate and the proper course is to instead seek to open the judgment. Id. It does not appear from Defendant's motion that she alleges any defects or irregularities on the face of the record. Thus we will consider her arguments in support of a motion to open the confessed judgment.

  In the case of a motion to open a confessed judgment, the motion should be granted if issues are presented which, in a jury trial, would require the issues to be submitted to the jury. Id. Since a motion to open a confessed judgment implicates equitable principles, the court may consider evidence in addition to the complaint and confession of judgment clauses. See Keystone Bank v. Flooring Spec., Inc., 513 Pa. 103 (1986). In addition, the court should consider whether the "judgment will visit prejudice on the plaintiff, whether the defendant has a meritorious defense, and whether the default was the result of the defendant's culpable conduct." Resolution Trust Corp., v. Forest Grove. Inc., 33 F.3d 284, 288 (3d Cir. 1994). The evidence presented in this regard should be viewed in a light most favorable to the petitioner and the court should accept as true "all evidence and proper inferences from it which support the defense while rejecting adverse allegations of the party obtaining the judgment." FDIC v. Deglau, 207 F.3d 153, 168 (3d Cir. 2000). It should be noted, however, that in making a motion to open, a petitioner may not rest on mere assertions, but must offer "clear, direct, precise, and believable evidence of [the] meritorious defenses." Id.

 III. Discussion

  A. Defendant's Counterclaim That Plaintiff Violated the ECOA

  Defendant seeks to counterclaim for actual damages in the amount of at least $4,364,628.66, punitive damages in the amount of $10,000, and attorney's fees for Plaintiff's alleged violation of the ECOA. Under the ECOA, it is unlawful for a creditor to discriminate against applicants on the basis of their marital status. See 15 U.S.C. § 1691(a)(1). However, affirmative claims under the ECOA are subject to a two year statute of limitations. See 15 U.S.C. § 1691(f). Generally, the statute of limitations runs from the time the credit application was signed, in this case, on January 22, 2002. See Roseman v. Premier Financial Services, 1997 U.S. Dist. LEXIS 13836, * 7-8 (E.D. Pa. 1997). Since Defendant did not file her ECOA counterclaim until February 20, 2004, it would appear that she is barred from asserting her claim.

  Defendant asserts correctly, however, that the Third Circuit has held that an ECOA violation may always be asserted as a defense to a confessed judgment. See Silverman v. Eastrich Multiple Investor Fund, 51 F.3d 28, 32 (3d Cir. 1995). In Silverman, the plaintiff brought a claim against the lender for an alleged ECOA violation. The lender argued that the plaintiff was barred from asserting such a claim by the two year statute of limitations. However, the court held that since the plaintiff had brought her claim in direct response to a confessed judgment, and was thus effectively raising it as a defense to the confessed judgement, her claim could not be barred by the statute of limitations. Id.

  Nothwithstanding Silverman, we disagree with Defendant's contention that she is entitled to assert a counterclaim for damages under the ECOA. While the court in Silverman allowed the plaintiff to go forward with her ECOA claim after the statute of limitations had run, it allowed her to do so only by way of a right of recoupment. It did so in order to prevent creditors from benefitting from a violation of the ECOA by seeking to enforce an illegally obtained guaranty after the statute of limitations had run. Id. at 32-33, citing Integra Bank v. Freeman, 839 F. Supp. 326, 329 (E.D. Pa. 1993). The court stated that if the lender "did in fact violate the ECOA, then plaintiff may have a valid defense and obtain relief from her obligations under the Guaranty," thus preventing the creditor from looking for payment from parties "`who, but for the ECOA violation, would not have incurred personal liability on the underlying debt in the first instance.'" Id. It is clear from this language that while the court intended to allow guarantors to obtain relief from guaranties obtained in violation of the ECOA, it did not intend for guarantors to be able to affirmatively file claims for damages under the ECOA after the two year statute of limitations has run. Both prior and subsequent decisions in the Eastern District of Pennsylvania are in accordance with Silverman, in that they support the right of guarantors to invoke a right of recoupment as ...

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