United States District Court, M.D. Pennsylvania
M. MUNLEY UNITED STATES DISTRICT COURT JUDGE
matter consists of two consolidated cases, 3:15cv35 and
3:15cv67. Each case deals with whether Defendant Jonathan
Greenwald owes sums of money to plaintiff, Zorm 2009, LLC,
under personal guaranties that he signed involving two
mortgages. The consolidated cases now come before the court
for decision following a non-jury trial held on February
7th and 8th, 2017. The following
memorandum includes our findings of fact and conclusions of
law. See Fed.R.Civ.P. 52(a)(1)
filed lawsuits regarding personal guaranties on two
mortgages. The parties refer to the two mortgages/loans as
the HACAG loan and the HAC II loan. Specifically, plaintiff
started the action involving the HACAG loan with a
“complaint in confession of judgment” filed on
January 1, 2015 against Greenwald and Robert Maynard. (Doc.
1, 3:15cv67). Pursuant to the confession of judgment
complaint, the court entered judgment in favor of plaintiff
in the amount set forth in the complaint, $958, 539.64. (Doc.
5, 3:15cv67, Judgment).
Greenwald then filed a motion to strike the judgment or in
the alternative, open the judgment. (Doc. 8, 15cv67). The
court granted the motions to strike and/or open judgment and
directed the clerk of court to reopen the case. (Doc. 25,
15cv67, Ord. of Aug. 4, 2015). The defendants answered the
case and Defendant Greenwald moved to consolidate this case
with 15cv35, which deals with the HAC II loan. (Doc. 27) The
other parties concurred in the motion. (Id.) The
court consolidated the cases on August 18, 2015. (Doc. 28,
15cv67, Ord. on Mtn. to Consol.)
started the HAC II lawsuit by filing a complaint on January
5, 2015 against Defendant Jonathan Greenwald and Robert
Maynard. (Doc. 1). The defendants answered the case and as
noted above, the court consolidated the HAC II case with the
HACAG case. The parties then went through a period of
the parties filed motions for summary judgment, which the
court denied on September 8, 2016. (Doc. 52). The court held
a two-day non-jury trial, commencing on February 7, 2017.
After the completion of the transcript, the parties filed
proposed findings of fact and conclusions of law, bringing
the case to its present posture.
has the burden of proving its case by the preponderance of
the evidence. That means plaintiff has to prove, in light of
all the evidence, that what it claims is more likely so than
not so. Greenwich Collieries v. Director, Office of
Workers' Comp., 990 F.2d 730, 736 (3d Cir. 1993).
Defendant has the burden of establishing his affirmative
defenses. Moore v. Kulicke & Soffa Indus., Inc.,
318 F.3d 561, 566 (3d Cir. 2003).
determining whether any fact has been proved by a
preponderance of evidence in the case, we have considered the
testimony of all witnesses, regardless of who may have called
them, and all exhibits received in evidence, regardless of
who produced them.
Greenwald's defense to the lawsuits is that the
respective personal guarantees were no longer in effect at
the time that lawsuits were filed. Thus, he personally, is
not liable for any damages. We will address the guarantees
separately beginning with the HAC II loan the case originally
docketed at 3:15cv35.
The case originally docketed at 3:15cv35, HAC II
first case has its origins in the HAC II loan extended by
Oritani Bank to a business called HAC, II, LLC (hereinafter
“borrower”) on April 9, 2009. (Doc. 78-1, Exh. A,
Court Exh. 1, Statement of Stipulated Facts Agreed to by
Counsel, (hereinafter “Stip.”) at ¶ 1). The
principal amount of the loan was $2 million. (Id.) A
construction/permanent loan note governed the repayment of
the loan (hereinafter “HAC Note”). Defendant
Jonathan Greenwald executed the HAC Note on behalf of HAC II.
(Id.) A mortgage and Security Agreement secured the
HAC Loan and encumbered property located at Melrose Street in
Hazleton, PA (hereinafter “Melrose Property”).
(Id. ¶ 2).
Defendant Greenwald executed and delivered a guaranty to
Oritani Bank, under which Defendant Greenwald became a surety
for all obligations, indebtedness and liabilities of the
borrower to Oritani Bank under the note. (Id. ¶