Customers Bank v. Reitnour, P. ( 2017 )

J-S38016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CUSTOMERS BANK, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PHILIP A. REITNOUR AND EMERGENSEE,
LLC,
Appellants No. 397 EDA 2017
Appeal from the Order Entered December 23, 2016
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2014-03537-JD
CUSTOMERS BANK, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EMERGENSEE LLC F/K/A ANYTHING FOR
SALE BY OWNER.COM LLC, PHILIP A.
REITNOUR AND REITNOUR INVESTMENT
PROPERTIES, LP,
Appellants No. 399 EDA 2017
Appeal from the Order Entered December 23, 2016
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2014-03535-JD
CUSTOMERS BANK, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PHILIP A. REITNOUR, EMERGENSEE U,
INC. AND EMERGENSEE, LLC,
J-S38016-17
Appellants No. 416 EDA 2017
Appeal from the Order Entered December 23, 2016
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2014-03538-JD
BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 25, 2017
In this consolidated appeal,1 Philip A. Reitnour and Emergensee, LLC,
Appellants at 397 EDA 2017, Emergensee LLC, formerly known as Anything
for Sale by Owner.com LLC, Philip A. Reitnour, and Reitnour Investment
Properties, LP, Appellants at 399 EDA 2017, and Philip A. Reitnour,
Emergensee U, Inc., and Emergensee, LLC, Appellants at 416 EDA 2017,2
appeal from the orders entered on December 23, 2016, that granted in part
and denied in part a petition to set aside Appellee’s, Customers Bank (“the
Bank”), writs of execution. After careful review, we are constrained to
quash the appeal.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
On February 27, 2017, this Court concluded that the appeals filed at 397
EDA 2017, 399 EDA 2017, and 416 EDA 2017 involved related issues and
parties, and we consolidated the appeals sua sponte pursuant to Pa.R.A.P.
513.
2
Philip A. Reitnour, Emergensee, LLC, formerly known as Anything for Sale
by Owner.com LLC, Reitnour Investment Properties, LP, and Emergensee U,
Inc., collectively shall be referred to as “Appellants” throughout our
Memorandum.
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The trial court set forth the relevant facts and procedural history of
this matter as follows:
This action is rooted in four loan transactions as far back
as 2001 through 2012. The loans were as follows:
 $400,00[0] loan (Loan Number 5992161) from Bank to
Phillip A. Reitnour and Kathleen Reitnour (now
deceased) dated December 26, 2001, and secured by a
mortgage on the borrowers’ primary residence located
at 1620 Minden Lane, Malvern, Pa. (“161 Loan”);
 $600,000 loan (Loan Number 5283411) from Bank to
Anything for Sale by Owner.com, LLC dated August 1,
2008 secured by commercial guarantees provided by
Phillip A. Reitnour and Reitnour Investment Properties
LP (“RI Properties”) as well as a mortgage on real
property located at 8221 First Avenue, Stone Harbor,
New Jersey (“411 Loan”);
 $850,000 loan (Loan Number 5704011[]) from Bank to
Phillip A. Reitnour dated November 29, 2011 secured by
commercial guarantees of EmergenSee, LLC and filed
UCC-1 on the assets of EmergenSee, LLC (“011
Loan”);
 $752,935.50 loan (Loan Number 5869427) from Bank
to Phillip A. Reitnour dated September 6, 2012 secured
by commercial guarantees of EmergenSee, LLC and
EmergenSee U, Inc. as well as the assets [o]f the
respective guarantors and mortgages on real property
located at (a) 8221 First Avenue, Stone Harbor, New
Jersey; (b) 1620 Minden Lane, Malvern, Pa.; and (c)
1260 Valley Forge Road, Phoenixville, Pa. (“427
Loan”).
Appellants defaulted on the loans and, as a result, the
parties entered into a Forbearance Agreement dated September
16, 2013. The terms of the Forbearance Agreement, inter alia,
extended the maturity date of the loans until February 1, 2014.
February 1 came and went without Appellants paying off the
loans as agreed. Thereafter, Bank declared default and
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demanded payment in full. On April 21, 2014, Bank entered the
following three separate judgments by confession:
 Customers Bank v. Anything for Sale by Owner.com
LLC, et al. No. 2014-03535-JD against Anything for Sale
by Owner.Com, LLC, Philip A. Reitnour, and Reitnour
Investment Properties, LP for the amount of
$634,788.59 based upon the 411 Loan;
 Customers Bank v. Philip A. Reitnour, et al. No. 2014-
03537-JD against Philip A. Reitnour and EmergenSee,
LLC (successor by name change of Anything for Sale by
Owner.Com, LLC), for the amount of $733,493.88
based on the 011 Loan;
 Customers Bank v. Philip A. Reitnour et al. No. 2014-
03538-JD against Philip A. Reitnour, EmergenSee U,
Inc., and EmergenSee, LLC for the amount of
$875,264.63 based upon the 427 Loan.
On May 20, 2014, Appellants filed petitions to strike and/or
open the Confessed Judgments, challenging the Bank’s ability to
confess judgments. Prior to the adjudication of the petitions, the
Bank and the Appellants entered into a Settlement Agreement
on or about December 11, 2014. The Settlement Agreement
established Appellants’ indebtedness under the 411 Loan, 011
Loan, 427 Loan as well as a certain Loan Number 5992161 (“161
Loan”) through December 1, 2014 in the amount of
$2,569,422.94. The Bank did not confess judgment upon the
161 Loan by virtue of the fact that it was a consumer loan which
did not contain a warrant of attorney provision. See, Appellants’
Petition to Set Aside Writ of Execution and/or Stay Execution at
Exhibit D. The Settlement Agreement further provided that the
Bank shall “standstill” with respect to its efforts to recover
and/or collect the total amount of indebtedness. Id. Thus, the
Bank agreed to “undertake no execution, garnishment,
foreclosure, or other remedy....” Finally, the Settlement
Agreement provided that all loan documents and the forbearance
agreement were ratified and confirmed. Id.
Under the Settlement Agreement, Appellants paid the Bank
$500,000.00 before December 31, 2014. Id. at Exhibit F.
According to Bank, this payment was applied to the 011 Loan.
Pursuant to the terms of the Settlement Agreement, Appellants
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were required to pay the remaining balance of the total
indebtedness before March 31, 2015. Appellants failed to do so,
thereby breaching the Settlement Agreement. As a result of
Appellants’ breach, the Bank was no longer obligated to
“standstill” with regard to its execution of the confessed
judgments.
In addition to securing the three confessed judgments, the
Bank instituted a foreclosure action in the New Jersey Superior
Court, Chancery Division, captioned Customers Bank f/k/a New
Century Bank v. Reitnour Investment Properties, LP et al. Docket
No. F-31832-14 (N.J. Sup. Ch.Div., Cape May Cnty.) (“the
Foreclosure Action”) on August 4, 2014. The Foreclosure Action
was based upon the mortgage securing the 411 Loan. On
December 31, 2014, the New Jersey Court issued a default Final
Judgment in Foreclosure against Reitnour Investment Properties,
entitling the Bank to $559,050.09 under the terms of the 411
Loan and Mortgage. The Bank did not appeal.
On August 3, 2015, Appellants sent a payoff check to Bank
in the amount of $641,888.44, which was accepted. Appellants
contend that the check was intended to pay off the 411 Loan;
however, under the terms of the Settlement Agreement, the
Bank was entitled to apply payments as it deemed appropriate.
The Bank did not apply such funds to the 411 Loan nor did it
mark the Foreclosure Judgment satisfied. Appellants sought
relief from the Final Judgment in Foreclosure in the NJ Court.
The NJ Court granted Appellants[] relief after a year of litigation
and found that the Bank was only entitled to receive
$559,050.09 on the day the judgment was issued, and with
interest, the amount increased to $612,912.31 as of August 3,
2015. The NJ Court also found that the Foreclosure Judgment
was satisfied by virtue of the August 3, 2015 payment in the
amount of $641,888.44, which was $28,976.13 more than Bank
was entitled. Appellants assert that this NJ Court decision
determining the value of the in rem portion of the 411 Loan has
a preclusive effect on any order by this Court.
Appellants additionally submitted a payoff check which was
purported to satisfy the 011 Loan in the amount of $277,396.11.
According to Bank, these funds were applied either to the 411
Loan or 427 Loan. Mr. Reitnour, at some point, filed for
bankruptcy. Pursuant to a stipulation between the Bank and
Mr. Reitnour, Mr. Reitnour issued four (4) payments of
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$3,000.00 each to the Bank to be applied to Appellants’
purported indebtedness. As a result of Appellants’ payments to
Bank, the aggregate amount of payments made was
$1,431,284.55.
Notably, by Orders dated April 15, 2015, upon
consideration of a Stipulation submitted by the parties, this
Court affirmed the Confessed Judgments in the amounts of
$634,788.59 (No. 2014-03535), $733,493.88 (No. 2014-03537)
and $875,264.63 (No. 2014-03538) in favor of Bank and against
Appellants. The Orders further stated that all of Appellants’
defenses to the Judgments were dismissed/withdrawn with
prejudice.
Three of the four praecipes were defective because they
did not contain the words “Confessed Judgment” immediately
below the title as required by Pa.R.C.P. 2957(b). The praecipe
issued in No. 2014-03535 asserted an amount due under the
411 Confessed Judgment that was $637,788.59 - $3,000 more
than the facial amount of the 411 Confessed Judgment. For
these reasons, this Court granted Appellants’ request to strike
three of the four praecipes at issue for procedural defects [on
December 23, 2016].
Trial Court Opinion, 2/16/17, at 3-7.
On January 6, 2017, Appellants filed motions for reconsideration.
However, before the trial court ruled on the motions for reconsideration,
Appellants appealed to this Court. Both the trial court and Appellants
complied with Pa.R.A.P. 1925.
On appeal, Appellants present the following issues for this Court’s
consideration:
A. May [the Bank] execute on the three (3) confessed judgments
issued in the matters below subject to this appeal (collectively,
the “Confessed Judgments”) after the parties entered into a
settlement agreement, resolving all of their disputes related to
the Confessed Judgments and the purported underlying
indebtedness?
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B. Should the judgment by confession (the “535 Judgment”)
issued in the matter below captioned Customers Bank v.
Anything for Sale by Owner.com LLC et al. No. 2014-03535-JD
(the “535 Matter”) be marked “satisfied” as a result of the
determination made by New Jersey Superior Court, Chancery
Division (the “NJ Court”) in the matter captioned Customers
Bank f/k/a/ New Century Bank v. Reitnour Investment Properties
LP et al., Docket No. F-31832-14 (N.J. Sup., Ch. Div., Cape May
Cnty.) (the “Foreclosure Action”) that the judgment in
foreclosure on the mortgage securing the same indebtedness
underlying the 535 Judgment (the “Foreclosure Judgment”)
was satisfied?
C. Should the Bank be permitted to execute on the three (3)
Confessed Judgments for the full amount of the Confessed
Judgments even after it received substantial payments toward
the purported underlying indebtedness?
D. Should the writ of execution issued in the matter captioned
Customers Bank v. Philip A. Reitnour et al., No. 2014-03538-JD
(the “538 Matter”) on which the Bank attempted to execute on
Philip A. Reitnour’s personal residence (the “Act 6 Writ”) be set
aside because the Act 6 Writ[:] 1) was secured by the Bank in
violation of 41 P.S. § 407(a), and 2) the praecipe for writ of
execution pursuant to which the Bank secured the Act 6 Writ
(the “Act 6 Praecipe”) did not comply with Pa. R.C.P. No.
2957(b)?
E. Are the Appellants who were defendants in the 538 Matter
(the “538 Matter Defendants”) entitled to recover statutory
reasonable attorney fees under 41 P.S. § 407(b)?
Appellants’ Brief at 3-4 (emphases in original).
Before we may address the merits of this appeal, we must determine if
this matter is properly before our Court. Specifically, we must decide if the
December 23, 2016 orders were final and appealable.
Generally, “‘a determinative order relating to execution is
in character a judgment, which, when of final nature, is
appealable.’” Cherry v. Empire Mutual Ins. Co., 417 Pa. 7, 10,
208 A.2d 470, 471 (1965)(quoting In re Opening of Parkway,
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267 Pa. 219, 225, 110 A. 144, 146 (1920)). Typically, an order
staying execution is deemed interlocutory, and, therefore,
unappealable because it is granted to maintain the status quo
pending the further disposition of other court proceedings or
investigations. Goodrich-Amram § 3121(c):5 at 246. See
Cherry, 417 Pa. at 12, 208 A.2d at 472 (holding order staying
execution interlocutory as it stayed execution “until further
order” to permit interested party to enter appearance before
court made final determination); Jenkintown National Bank v.
T.L. Fulmor, 124 Pa. 337, 17 A. 2 (1889) (holding interlocutory
a stay of execution since it was ordered merely to allow for
further investigation of an issue before the court). An order
staying execution becomes final and appealable, however, if
granted for an indefinite duration. Cherry, 417 Pa. at 11, 208
A.2d at 471; National Council of Junior Order of United
American Mechanics of U.S. v. Roberson, 214 Pa.Super. 9,
16, 248 A.2d 861, 865 (1969). Therefore, the finality and
appealability of a stay order depends either upon the duration of
the order or the reason for which it was entered. Cherry, 417
Pa. at 11, 208 A.2d at 471.56
Alternatively, an order setting aside a writ of execution is a
permanent remedy and constitutes a more drastic form of relief
from execution. Goodrich-Amram § 3121(d):1 at 247.
Accordingly, an order setting aside a writ is generally a final
order subject to immediate appeal. Goodrich-Amram
§ 3121(d):6 at 251; Cherry, 417 Pa. at 12, 208 A.2d at 472. Cf.
Rodgers v. Yodock, 309 Pa.Super. 154, 454 A.2d 1129 (1983)
(holding unappealable order which “set aside” writ of execution
since, by its terms, was not meant to be in effect for more than
thirty days). Therefore, to determine whether an order staying
or setting aside a writ is final and appealable, we must examine
the language of the order itself. Rodgers, 309 Pa.Super. at
157, 454 A.2d at 1131.
Valley Forge Center Associates v. Rib-It/K.P., Inc., 693 A.2d 242, 244
(Pa. Super. 1997).
Here, the trial court’s orders maintained the status quo only until the
Bank refiled its praecipes for writs of execution that complied with the Rules
of Civil Procedure. There was no permanency; rather, the nature of the
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orders was temporary and rendered the orders interlocutory and, at this
juncture, unappealable.3 See Valley Forge Center Associates, supra.
Accordingly, we quash the appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2017
____________________________________________
3
On February 15, 2017, this Court issued a Rule to Show Cause why this
appeal should not be quashed because the December 23, 2016 orders
appeared to be interlocutory. In their response to this Court’s Rule,
Appellants asserted that the orders are final because all that has to be done,
as a practical matter, is to refile the praecipes for writs of execution.
Appellants deem this purely a “ministerial” act. Appellant’s Response to Rule
to Show Cause, 2/22/17, at 7. However, as explained above, we are
required to look at the language of the order itself, Valley Forge Center
Associates v. Rib-It/K.P., Inc., 693 A.2d 242, 244 (Pa. Super. 1997), not
the ease with which contingencies in the order may be satisfied. Indeed, the
orders at issue require the Bank to refile the praecipes for writs of execution,
and upon successful completion of this refiling, the orders will be final.
When that refiling occurs, Appellants may pursue an appeal.
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