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U.S. Bank, National Association v. Maury Rosenberg

January 24, 2013


The opinion of the court was delivered by: Rufe,j.


Plaintiff U.S. Bank, N.A., filed this action to enforce the terms of an Individual Limited Guaranty ("Guaranty" or "Limited Guaranty") executed by Defendant Maury Rosenberg. Before the Court are Plaintiff's Motion to Dismiss Defendant's Counterclaims and its Motion to Strike Defendant's Affirmative Defenses. Plaintiff argues that by the express language of the Guaranty, Defendant waived his right to assert any claims, counterclaims, or affirmative defense in this litigation, and therefore that the Court should dismiss his counterclaims and strike his affirmative defenses in their entirety. While the Court recognizes the express language in the Guaranty by which Defendant waives his right to assert certain claims, the Court does not find that the provision applies to all claims and defenses asserted here. Accordingly, the Motions will be granted in part and denied in part.


Since the Court writes primarily for the parties who are well familiar with the complex factual and procedural background in this matter, the Court provides only the facts and procedure necessary to provide context for its decision.

A. Facts Relevant to Plaintiff's Claims as Alleged in the Complaint

On August 12, 2005, Mr. Rosenberg, on behalf of companies with which he was affiliated (referred to in the Complaint as "NMI Parties"), entered into a Settlement Agreement with Lyon Financial Services, U.S. Bank's predecessor in interest.*fn1 Pursuant to the Settlement Agreement, the parties modified the terms of existing commercial equipment leases, and reduced and restructured the payment obligations of the NMI Parties under the existing leases. Mr. Rosenberg guaranteed a portion ($7,661,945) of the NMI Parties' obligations in the Guaranty.*fn2

While the NMI Parties made 21 payments in accordance with the Settlement Agreement, they stopped payments beginning in February 2008. At the time of the NMI Parties' default under the Settlement Agreement, the guaranteed amount had been reduced to $4,980,264.32. As of January 12, 2012, this amount remained outstanding. U.S. Bank, as the present payee of the obligations under the Guaranty, sent a written notice to Mr. Rosenberg stating that the NMI Parties were in default under the Settlement Agreement, and demanding that Mr. Rosenberg pay the outstanding amount due under the Guaranty. Mr. Rosenberg did not pay the amount demanded and U.S. Bank filed this suit for breach of the Guaranty.

B. Facts Relevant to Defendant's Counterclaims and Defenses as Alleged in Defendant's Counterclaim

On July 31, 2008, Lyon, acting as an agent for U.S. Bank, filed a Complaint in confession of Judgment in the Bucks County Court of Common Pleas ("Bucks County Action") seeking the guaranteed amount that remained outstanding.*fn3 Mr. Rosenberg alleges that while the complaint stated that Lyon was entitled to judgment against him in the amount of $4,724,866.16, a judgment of $43,481,820.71 was erroneously entered against all defendants in that case. According to Mr. Rosenberg, Lyon had knowledge of this error, but did not correct it. On August 22, 2008, Mr. Rosenberg filed a petition to strike or open the confessed judgment and requested a stay of execution of such judgment. This petition notwithstanding, Lyon transferred the nearly $43 million judgment to the Philadelphia Court of Common Pleas on October 10, 2008.

During the pendency of Mr. Rosenberg's petition to strike/reopen, U.S. Bank "orchestrated the commencement and prosecution of an involuntary bankruptcy case against Rosenberg" in the Bankruptcy Court for the Eastern District of Pennsylvania on November 7, 2008.*fn4 The bankruptcy case was later transferred to the Bankruptcy Court for the Southern District of Florida, where Mr. Rosenberg resides. On August 21, 2009, the Bankruptcy Court dismissed the involuntary bankruptcy case. Mr. Rosenberg alleges that this dismissal shows that U.S. Bank with or through Lyon "orchestrated the improper 'sham' bankruptcy case without justification or excuse, knowing that the filing of an involuntary bankruptcy case would cause the demise of the [NMI parties] and put Rosenberg in financial ruin."*fn5

After the dismissal of the involuntary bankruptcy case, U.S. Bank moved for a determination on the motion to strike/reopen, which had remained pending in the Bucks County Court of Common Pleas. On November 22, 2011, the Bucks County Court entered an order striking the confessed judgment entered against Mr. Rosenberg and opening the confessed judgment entered against the NMI parties.*fn6

C. Procedural Posture of this Case

Three months later, on February 10, 2012, U.S. Bank filed the Complaint in this case. In response, Mr. Rosenberg filed a Motion to Dismiss arguing that pursuant to the terms of the Settlement Agreement and the Limited Guaranty, Bucks County state court has exclusive jurisdiction over the case. The Court denied the motion, holding that venue was proper in this Court because the forum selection clause provides that venue is proper in the federal district court whose judicial district encompasses Bucks County, and ordered that Mr. Rosenberg file an answer.

Mr. Rosenberg thereafter filed an answer raising 37 affirmative defenses and asserting counterclaims for Wrongful Use of Civil Proceedings (Count I), Abuse of Process (Count II), and Breach of the Covenant of Good Faith and Fair Dealing (Count III). U.S. Bank now moves to dismiss all counterclaims and defenses, asserting that pursuant to the terms of the Limited Guaranty, Mr. Rosenberg waived his right to assert any claims, counterclaims, or defense with respect to the terms of the Guaranty. Alternatively, U.S. Bank argues that the counterclaims are insufficiently alleged and must be dismissed, and that certain defenses are insufficient as a matter of law and must be stricken.


A. Motion to Dismiss

Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's "plain statement" lacks enough substance to show that he is entitled to relief.*fn7 In determining whether a motion to dismiss should be granted, the court must consider only those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party.*fn8 Courts are not, however, bound to accept as true legal conclusions couched as factual allegations.*fn9 Something more than a mere possibility of a claim must be alleged; rather plaintiff must allege "enough facts to state a claim to relief that is plausible on its face."*fn10

The complaint must set forth "direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory."*fn11 The court has no duty to "conjure up unpleaded facts that might ...

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