Swarb v. Lennox

WEINER, District Judge

(concurring and dissenting in part):

Although I concur in the foregoing opinion, I believe the Pennsylvania procedure is unconstitutional as applied to all members of the class on behalf of whom this suit has been instituted, irrespective of whether or not their income exceeds $10,000.

FINAL ORDER, PERMANENT INJUNCTION AND REVISED TEMPORARY RESTRAINING ORDER

And now, June 16, 1970, after consideration of the record, including the amended opinion containing findings of fact and conclusions of law filed June 1, 1970, and the four letters of June 5, 8, and 9, which are filed with this order, it is ordered and decreed as follows:

A. This action may be maintained and is determined on behalf of a class consisting of those individual natural persons, resident in Pennsylvania and having incomes, or conjugal incomes where both spouses have signed the documents described below, of less than $10,000. per year at the time of the execution of such documents, who have signed confession of judgment clauses in leases and consumer financing documents (hereinafter referred to in this order as “relevant documents”), excluding bonds and warrants of attorney accompanying mortgages and notes, such *1103 as FHA Form No. 9171N, accompanying mortgages required by governmental agencies.

B. On and after November 1, 1970, or at the expiration of the next session of the Pennsylvania General Assembly if the 1970 session has permanently adjourned by that date, defendants and intervening defendants, their agents, successors and assigns, are permanently restrained and enjoined from entering any judgments against members of the class described in paragraph A of this order on the basis of confession of judgment clauses in relevant documents, unless it has been shown that the signers of such clauses have intentionally, understanding^, and voluntarily waived all the rights lost under Pennsylvania law, as described in the opinion of June 1, 1970, as amended, when executing a document containing such a clause, provided, however, that

(1) the liens of judgments by confession previously recorded are preserved, and

(2) confessions of judgments may be entered of record after the date of this final order upon documents executed prior to the date of this final order, provided the recording is accomplished prior to the date recited above in this paragraph B.

C. The practice in Pennsylvania of confessing judgments under the Acts of April 14, 1834, P.L. 333, § 77, 17 P.S. § 1482 (III); February 24, 1806, P.L. 334, 4 Sm.L. 270, § 28, 12 P.S. § 739; and March 21, 1806, P.L. 558, 4 Sm.L. 326, § 8, 12 P.S. § 738, and Pennsylvania Rules of Civil Procedure 2950 to 2976, 12 P.S.Pa.Appendix is hereby declared unconstitutional, effective as of the dates stated in this order, as applied on the record in this case to the above class of persons.

D. The Temporary Restraining Order, as amended on May 14, 1970, is further revised to provide as follows;

“IT IS ORDERED AND DECREED that unless modified by further order of this court and until the applicable date stated in paragraph B of this order,

(1) no judgment may be entered against members of the class described in paragraph A of this order upon relevant documents dated after the date of this final order, unless it has been shown that the signers of such clauses have intentionally, understanding^, and voluntarily waived all the rights lost under Pennsylvania law, as described in the opinion of June 1, 1970, as amended, when executing a document containing such a clause, and

(2) no execution on judgments entered by confession on relevant documents defined in paragraph A of this order against the members of the class described in such paragraph A shall be processed by the defendant Sheriff and the defendant Prothonotary, provided, however, that those members of the class described in paragraph A of this final order of June 15, 1970, who have been protected by the terms of this temporary restraining order, as amended from time to time (see footnote 2 of the above-mentioned opinion), will be subject to execution on confessed judgments entered prior to the date specified in paragraph B above, provided that they have been granted the opportunity of a hearing on the claims forming the basis of such judgments conducted in accordance with the procedural guarantees of the due process clause of the Fourteenth Amendment, as set forth in the above-mentioned opinion, and that if the creditors establish the validity of such judgments and secure leave of the state court to execute thereon, in accordance with this proviso, the judgment subject to execution shall be effective as of the date of its original entry.”