Tomorrow Never Knows, LLC v. Cohen, S.
950 EDA 2017
| Pa. Super. Ct. | Nov 28, 2017Background
- Tomorrow Never Knows, LLC (Becker) made nine hard‑money loans to Stuart Cohen totaling $825,000 secured by mortgages on eight properties; Cohen later could not service the loans.
- Becker sought deeds in lieu of foreclosure; Cohen executed deeds and estoppel affidavits for six Larase properties (sold to Larase) and two Arlington properties, after communications in which Cohen testified Becker and Becker’s counsel assured him he would not face deficiency judgments.
- Deeds and affidavits included language reserving the lender’s right to pursue deficiencies; Becker instructed counsel not to promise waiver of deficiencies.
- Trial court found Cohen’s testimony credible that Becker (and reassurances from Becker’s attorney) induced him to sign, and found Becker not credible when he denied any oral agreement to waive deficiencies.
- Trial court vacated the confession of judgment and entered judgment for Cohen; Becker appealed arguing (1) the verdict was against the weight of the evidence and (2) counsel lacked authority to waive deficiencies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court’s factual finding that lender agreed to waive deficiency was against the weight of the evidence | Becker: court should give decisive weight to written deeds/affidavits reserving deficiency rights; verdict unsupported by evidence | Cohen: testified he relied on Becker’s assurances and would not have signed otherwise; trial court credited him | Court affirmed: weight claim waived for briefing defects and, on merits, court did not abuse discretion in crediting Cohen’s testimony |
| Whether lender’s attorney (Gallucci) had authority to release Cohen from deficiency liability | Becker: counsel could not bind lender to waive deficiency without authority; court erred in treating counsel statements as release | Cohen: he relied on counsel’s reassurances along with Becker’s assurances when signing; court credited that Cohen relied on counsel’s statements (not that counsel formally waived rights) | Court affirmed: no finding that Gallucci had authority to waive deficiency; trial court credited testimony that counsel only said foreclosure and fees would stop, and Cohen relied on combined reassurances |
Key Cases Cited
- Brown v. Trinidad, 111 A.3d 765 (Pa. Super. 2015) (standard and deference for weight‑of‑the‑evidence review)
- Rettger v. UPMC Shadyside, 991 A.2d 915 (Pa. Super. 2010) (issue waiver for failure to provide legal authority and standard of review)
- Gutteridge v. J3 Energy Group, Inc., 165 A.3d 908 (Pa. Super. 2017) (bench‑trial findings given same weight as jury verdict; appellate review for legal error or abuse of discretion)