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Storick v. CFG LLC

Supreme Court of Delaware

March 30, 2015

SCOTT STORICK, Defendant Below, Appellant,
v.
CFG LLC, Plaintiff Below, Appellee.

Submitted: January 23, 2015

Court Below-Superior Court of the State of Delaware, in and for New Castle County C.A. No. SN09J-07-408

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

ORDER

Karen L. Valihura Justice

This 30th day of March, 2015, upon consideration of the briefs and record on appeal, it appears to the Court that:

(1) The appellant, Scott Storick, filed this pro se appeal from a July 29, 2014 Superior Court opinion denying his motion for reconsideration and/or appeal from the Superior Court Commissioner's order denying his motion to vacate a judgment and granting the appellee's motion to release garnished wages held in escrow. We conclude there is no merit to the appeal and affirm the judgment of the Superior Court.

(2) In August 2007, CFG LLC ("CFG"), a Delaware limited liability company, loaned $743, 548.47 to Storick and his company Storick & Associates, Inc. ("Storick & Associates") pursuant to a Loan and Security Agreement ("LSA") and Promissory Note. The LSA contained a Confession of Judgment provision for confession of judgment in the Superior Court for the City of Wilmington, Delaware pursuant to the provisions of 10 Del. C. § 4732 in the event of a default. In July 2009, after Storick and Storick & Associates defaulted on their obligations under the LSA, CFG filed an action in the New Castle County Superior Court to obtain a judgment against Storick and Storick & Associates. A hearing was scheduled for August 21, 2009. Notice was provided to Storick and Storick & Associates in North Carolina.

(3) The Superior Court docket reflects that judgment was entered against Storick and Storick & Associates on September 4, 2009 after they failed to appear for the August 21, 2009 hearing. According to the parties, they had agreed to a continuance of the August 21, 2009 hearing until September 4, 2009 so they could discuss a possible settlement. It appears that Storick filed for bankruptcy in the United States Bankruptcy Court for the Southern District of Florida ("Bankruptcy Court") on September 3, 2009. At the request of CFG's counsel, the September 4, 2009 judgment was amended to be entered against only Storick & Associates due to Storick's bankruptcy proceedings.

(4) During the bankruptcy proceedings, CFG and Storick participated in mediation and entered into an amended settlement agreement dated June 18, 2010 ("Settlement Agreement"). Under the Settlement Agreement, CFG and Storick agreed that CFG was entitled to a judgment of $540, 000 plus interest to accrue at the statutory rate and that the debt was non-dischargeable under 11 U.S.C. § 523(a). Section 5 of the Settlement Agreement provided:

CONFESSION OF JUDGMENT: Debtor [Storick] hereby irrevocably appoints and constitutes CFG as Debtor's duly appointed attorney-at-law to appear in open court in the Superior Court for the City of Wilmington, Delaware, or in any other court of competent jurisdiction, and to confess judgment pursuant to the provisions of Title 10 Section 4732 of the Delaware Code, as amended, against Debtor for all principal and interest and other amounts due and payable under this Agreement. This power of attorney is coupled with an interest and may not be revoked and/or terminated by the Debtor. This power of attorney shall not be revoked and/or terminated by virtue of the death or disability of the Debtor. No single exercise of the power to confess judgment shall be deemed to exhaust this power of attorney.[1]

Section 13 of the Settlement Agreement provided:

CHOICE OF LAW/VENUE/JURISDUTCION: [sic] The validity of this Agreement and all of the terms and provisions, as well as the rights and duties of the parties, shall be interpreted and construed by the laws of the State of Florida.[2]

The Settlement Agreement was conditioned upon the approval of the Bankruptcy Court.

(5) After a hearing on June 22, 2010, the Bankruptcy Court approved the Settlement Agreement. The transcript of that hearing reflects that the parties understood CFG would be going to Delaware. The order approving the Settlement Agreement provided that CFG was "granted stay relief to proceed as provided in the Amended Agreement, including, but not limited to, proceeding to obtain the agreed judgment in the principal sum of $540, 000.00, ...


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