Manor Building Corp. v. Manor Complex Associates, Ltd.

CIRILLO, Judge:

Appellant Manor Complex Associates, Ltd. (Manor) appeals from an order of the Court of Common Pleas of Allegheny County denying its motion to strike the confessed judgment entered against it on a second mortgage security agreement. The judgment was in the amount of $4,832,572.82. We affirm.

On April 28, 1988, Manor executed a security agreement granting a second mortgage to ComFed Savings Bank1 as security for a $5,500,000.00 note. Manor also executed an assignment of rents and leases to ComFed in connection with that second mortgage. The following year, ComFed assigned its interest in the mortgage to appellee Continental Realty Credit, Inc. (Continental). Continental then assigned the *250mortgage and rents and leases to appellee Westinghouse Credit Corporation (Westinghouse). In its complaint in confession of judgment, Continental averred that it retained an ownership interest in the mortgage. The language in the assignment, however, reads as follows:

Continental Realty Credit, Inc., ... holder and owner by Assignment of even date recorded herewith of: (a) a Mortgage-Security Agreement to it from Manor Complex Associates, Ltd., ... and (b) an Assignment of Rents and Leases executed in connection therewith ... hereby assigns and transfers all of Continental’s right, title and interest in the Mortgage and Assignment to Westinghouse Credit Corporation ..., without recourse.

Assignment of Mortgage and Assignment of Rents and Leases, R.28a.

On December 27, 1990, Manor defaulted on the second mortgage and, pursuant to the terms of the mortgage which included a confession of judgment/warrant of attorney clause, Continental and Westinghouse filed a complaint in confession of judgment against Manor on April 8, 1991. Judgment was entered that same day.

On April 11, 1991, Manor filed for Chapter 11 bankruptcy, but on January 29, 1992, the case was dismissed effective March 16, 1992. Thereafter, on March 16, 1992, Continental and Westinghouse assigned the rents and leases as well as the April 8, 1991 judgment to appellee Manor Building Corporation [hereinafter referred to as MBC]. On April 20, 1992, appellant Manor filed a petition to strike the judgment.

In its petition, Manor alleged that the judgment failed to comply with Pennsylvania Rules of Civil Procedure 2002(a) (pertaining to real party in interest) and 2954 (providing that judgment be entered in the name of the holder, assignee, or other transferee). Manor argued, therefore, that there existed a defect on the record and that the judgment should be stricken. The trial court disagreed and denied the petition. Manor filed this appeal, and now presents the following claims:

*2511. Whether Plaintiffs Continental and Westinghouse properly confessed judgment against Defendant Manor in accordance with Pa.R.C.P. 2954?

2. Whether Plaintiffs Continental and Westinghouse carried their burden of proving their interest in the note and mortgage?

3. Whether the inclusion in the record of contradictory averments constitutes a defect on the face of the record?

4. Does an assignment attached to a complaint constitute part of the record?

5. Whether contradictory averments of fact introduced into a record must all be accepted as true by the court?

As the trial court noted, Manor decided to forego a petition to open2 and proceeded solely on a motion to strike. See Parkview Consumer Discount Co. v. Goss, 231 Pa.Super. 50, 332 A.2d 827 (1974). We, therefore, confine our review accordingly.

A motion to strike a judgment operates as a demurrer to the record and will only be granted if a fatal defect or irregularity appears on the face of the record or judgment. DeCoatsworth v. Jones, 536 Pa. 414, 639 A.2d 792 (1994); Franklin Interiors v. Wall of Fame Management Co., Inc., 510 Pa. 597, 511 A.2d 761 (1986); Commonwealth National Bank v. Boetzelen, 338 Pa.Super. 237, 487 A.2d 943 (1985). *252The defect which is a matter of record or which appears from the face of the judgment must be alleged in the application. Albert Einstein Medical Center v. Forman, 212 Pa.Super. 450, 243 A.2d 181 (1968). Further, “being in derogation of important rights on behalf of the debtor, any ambiguity in the warrant of attorney authorizing confession of judgment must be resolved against the party in whose favor the warrant is given.” Kline v. Marianne Germantown Corp., 438 Pa. 41, 263 A.2d 362 (1970).

A judgment entered by confession must be self-sustaining and may not be entered when the court must consider matters outside the instrument in order to support the judgment. Colony Federal Savings & Loan Assoc, v. Beaver Valley Engineering Supplies Co., 238 Pa.Super. 540, 361 A.2d 343 (1976). When a proceeding to confess judgment is instituted by complaint, the complaint and confession of judgment clause must be read together to determine whether there are defects on the face of the record. Parliament Industries, Inc. v. Wm. H. Vaughan & Co., 501 Pa. 1, 459 A.2d 720 (1983). See generally Goodrich-Amram 2d §§ 2951-2954. The facts averred in the complaint are to be taken as true; if the factual averments are disputed, the remedy is by a proceeding to open the judgment and not by a motion to strike. Van Arkel & Moss Properties, Inc. v. Kendor, Ltd., 276 Pa.Super. 547, 551, 419 A.2d 593, 595 (1980).

Manor argues that judgment in favor of both Continental and Westinghouse was improper and contrary to Pa.R.C.P. 2954 as Continental did not retain an interest in the mortgage when it assigned the instrument to Westinghouse. We disagree.

A negotiable instrument is an instrument capable of transfer by endorsement or delivery. Negotiability provides a means of passing on to the transferee the rights of the holder, including the right to sue in his or her own name, and the right to take free of equities as against the assignor/payee. See Fischbach & Moore v. Philadelphia National Bank, 134 Pa.Super. 84, 3 A.2d 1011 (1939). The purpose of the Com*253mereial Code is to enhance the marketability of negotiable instruments and to allow bankers, brokers, and the general public to trade in confidence. See Uniform Commercial Code, Article 3, Negotiable Instruments, 13 Pa.C.S. §§ 3101 et seq. See also First National Bank of Blairstown v. Goldberg, 340 Pa. 337, 17 A.2d 377 (1941). As a matter of sound economic policy, the Commercial Code encourages the free transfer and negotiability of commercial paper to stimulate financial interdependence.

The Commercial Code declares that the negotiable character of an instrument, otherwise negotiable, is not affected by a provision which authorizes a confession of judgment on the instrument if it is not paid when due. See 13 Pa.C.S. § 3104(a). See also Home Credit Co. v. Preston, 99 Pa.Super. 457 (1930). Compare Green v. Dick & Shope, 72 Pa.Super. 266 (1919) (a warrant of attorney, authorizing confession of judgment “at any time after the above note becomes due,” does not affect the negotiability of the instrument) with Bittner v. McGrath, 186 Pa.Super. 477, 142 A.2d 323 (1958) (note containing warrant to confess judgment “at any time” is a nonnegotiable instrument).

A judgment by confession may be entered only in the name of a holder or, unless expressly forbidden in the instrument, in favor of the assignee or other transferree. Pa.R.C.P. 2951, 2954. The facts which entitle a real party in interest, other than the original payee of the instrument, to confess judgment thereon must appear of record, generally in the complaint for confession of judgment. See Pa.R.C.P. 2952(c) (a statement of assignment of the instrument shall be included in the complaint for confession of judgment).3 Other*254wise, the judgment will be stricken. Weitzman v. Ulan, 304 Pa.Super. 204, 450 A.2d 173 (1982); Fourtees Co. v. Sterling Equipment Corp., 242 Pa.Super. 199, 363 A.2d 1229 (1976); cf. Testa v. Lally, 161 Pa.Super. 478, 55 A.2d .552 (1947). “Our concern, therefore, is whether the record as filed by [Continental and Westinghouse] is adequate to sustain the judgment or is defective in some way.” Davis v. Woxall Hotel, Inc., 395 Pa.Super. 465, 468, 577 A.2d 636, 638 (1990). With these principles in mind, we will review the complaint and instrument before us.

The following are the relevant allegations in the complaint in confession of judgment:

5. The Mortgage was assigned to Continental by ComFed Savings Bank (“ComFed”) by Assignment of Mortgage and Assignment of Rents and Leases dated April 20, 1989 (the “Assignment”). Continental, pursuant to a collateral assignment dated April 20,1989 (the “Collateral Assignment”) assigned the Mortgage to Westinghouse as collateral pursuant to a Revolving Credit and Security Agreement dated April 18, 1989, although reserving its ownership interest therein.
7. Section 29 of the Mortgage authorizes judgment to be confessed against Defendant [Manor] in the event of a default under a certain note (the “Note”), issued by Defendant in favor of ComFed, the Mortgage or any of the Loan Documents, as that term is defined under the Mortgage.
8. Default was made by Defendant in the payment of the installment of THIRTY-SEVEN THOUSAND FIVE HUNDRED EIGHTY AND 21/100 ($37,580.21) Dollars due on December 27,1990 and in the payment of all subsequent installments, whereby the Mortgage is in default and all *255indebtedness under the Note is immediately due and payable by the Defendant as set forth in the Mortgage.

Complaint, ¶¶ 5, 7, 8.

The confession of judgment clause in the Second Mortgage Security Agreement between Manor, the Mortgagor, and ComFed, the Mortgagee, provides:

17. In the event of default ... the entire principal and interest due on the Note hereby secured together with any amount paid or expended by the Mortgagee under the terms of this Mortgage or under any of the foregoing other agreements or obligations, shall, at the option of the Mortgagee, become immediately due and payable.

18. A. The word “Mortgagor,” as used herein, shall mean the person, persons, entity and/or entities named at the beginning of this instrument as the Mortgagor, and any subsequent owner or owners of the equity of redemption of the mortgaged premises or the Personal Property....

B. The words “Holder” or “Mortgagee,” as used herein, shall each mean the Mortgagee named at the beginning of this instrument, and any subsequent holder or holders of this Mortgage.

* * * * * *

29. Upon the occurrence of a default hereunder, ... the Mortgagor hereby irrevocably authorizes and empowers any attorney of record, or the Prothonotary or Clerk of any court in the Commonwealth of Pennsylvania or elsewhere, to appear for the Mortgagor in any such court at any time, and from time to time, and therein to confess or enter judgment against the Mortgagor for the full amount of the indebtedness secured hereby as such indebtedness is evidenced by an affidavit signed by a duly authorized designee of Mortgagee setting forth the amount of such indebtedness____

Continental and Westinghouse alleged the assignment from ComFed to Continental in their complaint. They also *256alleged the collateral assignment from Continental to Westinghouse, specifically averring the following in paragraph 5: “Continental ... assigned the Mortgage to Westinghouse as collateral pursuant to a Revolving Credit and Security Agreement dated April 18, 1989, although reserving its ownership interest therein.” Continental pledged the mortgage to Westinghouse; Continental retained an ownership interest in the mortgage and Westinghouse was granted a security interest. These facts were verified by both Continental and Westinghouse.

Although not required, Continental and Westinghouse attached to their complaint a copy of the assignment from ComFed to Continental and a copy of the collateral assignment from Continental to Westinghouse. See Pa.R.C.P. 2952(c); Brown v. Esposito, 157 Pa.Super. 147, 42 A.2d 93 (1945); see also Weitzman, supra. Manor contends that the statement of assignment in the complaint, wherein Continental reserves its ownership interest in the Mortgage, is contradicted by the language in the collateral assignment and, therefore, the judgment should have been stricken. We disagree. We do not find that the assignment is necessarily inconsistent with the allegation in the complaint that an ownership interest was retained. Further, Manor’s argument presumes that the attachment, the collateral assignment, takes precedence over the factual averments in the complaint.

“The facts averred in the complaint in confession of judgment are to be taken as true; if the factual averments are disputed, the remedy is by a proceeding to open the judgment and not by a motion to strike.” Van Arkel & Moss Properties v. Kendor, Ltd., 276 Pa.Super. 547, 551, 419 A.2d 593, 595 (1980). Here, despite the fact that the assignment executed by Continental to Westinghouse was attached to the complaint, the facts in the complaint take precedence in these proceedings. Id. Had Manor wished to attack the facts averred in the complaint, it was required to go beyond the face of the record and petition the court to open the judgment. See DeRose v. Lombardi, 413 Pa. 258, 196 A.2d 336 (1964) (questions of fact must be resolved by a petition to open); see *257also Northway Village No. 3, Inc. v. Northway Properties, Inc., 430 Pa. 499, 244 A.2d 47 (1968).

We are, therefore, convinced that Continental is a real party in interest and was authorized to confess judgment against Manor. See Brown et al. v. Esposito, 157 Pa.Super. 147, 42 A.2d 93 (1945) (assignees suing in their own name are not required to set out assignment verbatim or attach a copy of assignment as an exhibit to their pleading; it is sufficient if they state facts and date of assignment and parties thereto). Cf. Fourtees, supra (confessed judgment stricken where there was no evidence on the record that appellee was the real party in interest).

Additionally, we point out that in a cause where the sole defense is payment, Manor has not disputed the default nor alleged that it has cured the default. Instead, Manor has attempted to contest on the grounds of standing. In our view, the dispute over which creditor ought to be paid in these circumstances is a matter for the creditors to discern at distribution. We view Manor’s tactics as an undertaking in delay, the type of delay which not only stalls execution, but which inflates the cost of borrowing money and chokes the policies of our Commercial Code. This is especially true since interest on the note and mortgage ceases when the judgment is entered on the bond and warrant.

For the foregoing reasons, we find that the attachment of the collateral assignment to the complaint is not a fatal defect on the face of the record. DeCoatsworth, supra. Accordingly, we affirm the trial court’s order denying Manor’s petition to strike the judgment.

Order affirmed.

CAVANAUGH, McEWEN, BECK, KELLY, POPOVICH and SAYLOR, JJ., join. WIEAND, J., files a concurring opinion in which McEWEN, BECK and KELLY, JJ., also join. TAMILIA, J., files a dissenting opinion.

. ComFed Savings Bank is not a party to this appeal. *254304 Pa.Super. 204, 212, 450 A.2d 173, 177-78 (1982) ("The rule requires only that the complaint contain a 'statement of any assignment of the instrument.' ”).

. A petition to strike and a petition to open are two forms of relief with separate remedies; each is intended to relieve a different type of defect in the confession of judgment proceedings. See Pa.R.C.P. 2959 (Relief from judgment by confession/striking off or opening judgment).

A petition to strike off the judgment reaches defects apparent on the face of the record, Equibank, N.A. v. Dobkin, 284 Pa.Super. 143, 425 A.2d 461 (1981); Commonwealth National Bank v. Boetzelen, 338 Pa.Super. 237, 487 A.2d 943 (1985); C-Rich Co. v. Davis, 383 Pa.Super. 31, 556 A.2d 413 (1989), while a petition to open the judgment offers to show that the defendant can prove a defense to all or part of the plaintiffs claim. Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938). When an alleged defect in the judgment entered by confession is based upon a matter outside the record, the proper approach is to seek to have the court open the judgment. Proceedings to open a judgment involve equitable principles, and only those judgments which warrant equitable interference will be opened. Keystone Bank v. Flooring Spec., Inc., 513 Pa. 103, 518 A.2d 1179 (1986).

. Pennsylvania Rule of Civil Procedure 2952 provides in part:

RULE 2952. COMPLAINT. CONTENTS
The complaint shall contain the following:
* % * * >fc *
(c) a statement of any assignment of the instrument;
* # * * * *

Pa.R.C.P. 2952(c) (emphasis added). The rule does not require that an executed assignment be attached to the complaint in confession of judgment; a recital of assignment is sufficient. See Weitzman v. Ulan,