239 Pa. Super. 300 | Pa. Super. Ct. | 1976
Opinion by
This is an appeal from the denial of two Petitions to Strike or Open Judgments. The appellants, a husband and wife, allege that the lower court abused its discretion in denying their Petitions, and further, misconstrued the Debt Pooling Act (Act of December 6, 1972, P.L. 1482, No. 334, §1, effective June 6, 1973, 18 Pa.C.S. §7312).
In the consideration of any appeal from the lower court’s denial of a Petition to Open Judgment, it is well established that we must not reverse the lower court’s action unless a clear abuse of discretion is apparent or an error of law was committed. Alliance Discount Corp. v. Shaw, 196 Pa. Superior Ct. 601, 171 A.2d 548 (1961). A party that moves to open a confessed judgment, such as those involved in the instant appeal, must act promptly and aver a meritorious defense. Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967). No issue is raised in our Court, nor was any voiced by the appellee or the lower court regarding the timeliness of appellants’ Petitions to Open Judgment. Thus, we must only determine whether the lower court clearly abused its discretion or committed an error of law in the evaluation of whether appellants raised a meritorious defense.
Appellants filed petitions to open (or strike) judgment relating to two judgments confessed against them by appellees. Rules to Show Cause why the judgments should not be opened or stricken were sought. After Answers were filed the lower court directed appellants to proceed in accordance with Pennsylvania Rules of Civil Procedure 209 or 2959, and utilize discovery procedure, or be bound by the averments contained in the Answers. See Harr v. Bernheimer, 322 Pa. 412, 185 A. 857 (1936). Appellants took no further action so the record before the lower court and our court must necessarily rest upon the factual averments of the Answer, together with the undenied averments found in the appellants’ petitions.
The record therefore indicates that on December 12, 1968, appellants executed bonds and mortgages on real
In addition to the above-described costs and fees, the “settlement sheet” and mortgage show that appellants were required as a condition of the loan, to pay the Commonwealth Acceptance Corporation a sum of one thousand, six hundred ninety-four and six one-hundredths ($1,694.06) dollars as a so-called “financial consultant fee,” on the first mortgage of seven thousand ($7,000.00) dollars. Moreover, appellants were required to pay to the appellee, Safeguard Investment Company, a fee of nine hundred ($900.00) dollars on the same loan and an additional fee of eight hundred three and forty one-hundredths ($803.40) dollars on the second mortgage of three thousand ($3,000.00) dollars. No reasons are specified on the loan documents for these payments of one thousand, seven hundred and three and forty one-hundredths ($1,703.40) dollars to Safeguard.
Thus, to summarize, the record shows that the appellants, in an attempt to consolidate debts of five thousand, seven hundred ($5,700.00) dollars, were re
The statute prohibiting debt pooling, in effect at the time of the instant loan transaction in 1968, was the Act of June 24, 1939, P.L. 872, §899, 18 P.S. §4899 (as amended by the Act of August 8, 1961, P.L. 970, §!),
"... the making of a contract, express or implied, with a debtor or debtors whereby the debtor agrees to pay a sum of money periodically or otherwise to another person for the purpose of having such other person distribute the same among certain specified creditors in accordance with a plan agreed upon, or to be agreed upon, and whereby such other person shall receive a consideration for any such services rendered, or to be rendered, in connection therewith.”
The Act made debt pooling illegal and provided certain criminal penalties; it also provided certain excluded categories and professions which are not pertinent here. From our reading of the Act, and considerations of the record before us, it clearly appears that the transaction involved in the instant case contains provisions violative of the Debt Pooling Act.
The appellee contended before the lower court, and on this appeal, that the Petitions to Open should have been dismissed because the affidavit on one of the Petitions was signed by appellants’ counsel rather than by appellants themselves.
The Order of the Court of Common Pleas is reversed and the cause is remanded to the Court of Common Pleas for proceedings consistent herewith.
. The present prohibitions against debt pooling may be found in the Act of December 6, 1972, P.L. 1482, No. 334, §1, eff. June 6, 1973, 18 Pa.C.S. §7312.
. As noted earlier, appellee confessed judgment on two separate bonds and mortgages even though both debts arose out of the same loan transaction. One of Appellants’ Petitions to Open Judgment was accompanied by a proper affidavit, while the other featured the above-discussed affidavit of counsel.