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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SKW-B ACQUISITIONS SELLER C, LLC, 

AS SUCCESSOR TO FS RIALTO 2019-FL 

1 HOLDER, LLC

IN THE SUPERIOR COURT 

OF PENNSYLVANIA

Appellant

v.

STOBBA RESIDENTIAL ASSOCIATES, 

L.P. AND STOBBA ASSOCIATES, L.P. 

Appellees No. 73 EDA 2022

Appeal from Order dated December 13, 2021 

In the Court of Common Pleas of Philadelphia County,

Civil Division, at No. 210501951

_____________________________________________________________

SKW-B ACQUISITIONS SELLER C, LLC, 

AS SUCCESSOR TO FS RIALTO 2019-FL 

1 HOLDER, LLC 

IN THE SUPERIOR COURT 

OF PENNSYLVANIA

Appellee

v.

STOBBA RESIDENTIAL ASSOCIATES, 

L.P. AND STOBBA ASSOCIATES, L.P. 

Appellants No. 101 EDA 2022

Appeal from Order dated December 13, 2021 

In the Court of Common Pleas of Philadelphia County,

Civil Division, at No. 210501951

BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY STABILE, J.: FILED MARCH 1, 2023

FS-Rialto 2019-FL 1 Holder, LLC brought this action for breach of 

contract against Stobba Residential Associates, L.P. and Stobba Associates
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(collectively “Borrower”), alleging that Borrower defaulted under a promissory 

note and loan agreement. SKW-B Acquisitions Seller C, LLC (“Lender”) is the 

successor in interest to FS-Rialto 2019-FL 1 Holder, LLC. Borrower is the 

owner of residential and commercial properties at 200-210 Lombard Street in 

Philadelphia. Lender moved for appointment of a receiver, asserting, inter 

alia, that Borrower failed to make monthly payments on the note and

instructed Borrower’s commercial tenants to pay rent into Borrower’s bank 

account instead of the account specified in the loan agreement. On December 

13, 2021, following two evidentiary hearings, the court issued a memorandum 

and order in which it declined to appoint a receiver. The court did, however,

order alternative relief by directing Borrower to instruct commercial tenants 

to pay ongoing rents into the account specified in the loan agreement and 

instructing Borrower to account for all rents deposited into Borrower’s account. 

Lender appeals the portion of the order denying its motion for 

appointment of a receiver. Borrower cross-appeals the portion of the order 

granting Lender alternative relief.

1

 For the reasons provided below, we vacate 

the court’s order and remand for further proceedings. 

On August 2, 2019, Borrower executed a loan agreement with FS CREIT 

Originator LLC (“Original Lender”) evidencing a $24,250,000 loan to Borrower. 

1 The caption of Borrower’s notice of appeal listed FS-Rialto 2019-FL 1 Holder, 

LLC as Appellee. The proper appellee in this appeal should be SKW-B 

Acquisitions Seller C, LLC, successor in interest to FS-Rialto 2019-FL 1 Holder, 

LLC. We have corrected the caption accordingly in Borrower’s appeal at 101 

EDA 2022. 
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The loan was evidenced by a promissory note dated August 2, 2019 that 

Borrower executed in favor of Original Lender. The Loan is secured by an 

open-end mortgage, assignment of leases and rents, security agreement and 

fixture filing, dated July 30, 2019 and effective as of August 2, 2019, from 

Borrower to Original Lender. The mortgage created a lien in favor of Original 

Lender on multiple residential condominium unit numbers in the Headhouse

Flats Condominium located at 200-210 Lombard Street, Philadelphia, 

Pennsylvania (“the Property”) and on commercial condominium unit B in the 

Property. 

In connection with the Loan, Borrower executed a cash management

agreement with Wells Fargo Bank, National Association (“Wells Fargo”), and a 

deposit account control agreement (“DACA”) with the Original Lender and 

Wells Fargo. We will refer to the loan agreement, note, mortgage, cash 

management agreement, and DACA as the “Loan Documents.”

Eric Blumenfeld is Borrower’s sole principal. Tenants at the Property 

include Giant Food Stores, Wawa, Rita’s Water Ice, South Philadelphia 

Pediatrics, LLC, Supercuts, TD Bank, and Target Park U.S. Inc. 

The loan agreement requires that “the Monthly Debt Service Payment

Amount shall be paid by Borrower to Lender on each Payment Date.” Loan

Agreement, § 2.2.3. The loan agreement defines monthly debt service

payment amount as meaning, “with respect to each Payment Date, an amount 

equal to all interest that is scheduled to accrue on the Outstanding Principal 
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Balance during the Accrual Period in which each such Payment Date occurs.” 

Loan Agreement, § 2.2.3. 

Pursuant to Section 1.1 of the mortgage, Borrower granted a security 

interest in the Property. Pursuant to Section 1.1(f) of the mortgage, Borrower 

also granted Lender a security interest in, inter alia, “all leases, subleases, 

rental agreement, letting, licenses, concessions and other agreements, 

whether or not in writing, affecting the use, enjoyment or occupancy of the 

Premises (“Leases”) ... and all rents, additional rents, payments in connection 

with any termination, cancellation or surrender of any Lease, revenues, issues 

or profits (“Rents”).” Mortgage, Exhibit C, Section 1(f).

To protect the security interest, the Loan Documents have several 

provisions requiring the deposit of rents and other revenues generated by the 

Property into specific accounts created and held for the benefit of Lender. 

Specifically, pursuant to the loan agreement, the DACA, and the cash 

management agreement, Borrower was required to have all Tenants deposit

Rents into the DACA account at Wells Fargo. Rents in the DACA account would 

then be disbursed daily into Lender’s cash management account at Wells 

Fargo. See Loan Agreement, § 6.1.1; DACA §§ 1(a)-(b) and Sections 2-5; 

Cash Management Agreement § C and §§ 1(a) and 7-8. Section 6.1.2 of the

loan agreement requires Borrower to deliver each commercial tenant a notice 

instructing it to pay Rent into the appropriate account. Section 4.1.4 of the 

loan agreement requires that Borrower provide monthly reports of Rents 
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collected from tenants and monthly operating statements of, inter alia, gross 

income, operating expenses and capital expenses. 

Section 7.1(i) of the Loan Agreement provides that it is an event of 

default under the Loan “if any portion of the Debt is not paid on or before the 

date same is due and payable or if the entire Debt is not paid on or before the 

Maturity Date.” Section 7.1(xii) of the loan agreement provides that it is an 

event of default under the loan “if Borrower shall continue to be in default 

under any other term, covenant or condition of this Agreement, the Note, the 

Security Instrument or the other Loan Documents not specified above [such 

as the obligation to instruct Tenants to deposit Rents into the Cash 

Management Account] for more than (y) ten (10) days after notice from 

Lender, in the case of any default which can be cured by the payment of a 

sum of money, or (z) thirty (30) days after notice from Lender, in the case of 

any other default.”

Under Section 8.1(g) of the Mortgage, Borrower agreed that upon an

Event of Default, 

Lender may take such action, without notice or demand, as it

deems advisable to protect and enforce its rights against Borrower 

and in and to the Property, including, but not limited to, the 

following actions, each of which may be pursued concurrently or 

otherwise, at such time and in such order as Lender may

determine, in its sole discretion, without impairing or otherwise 

affecting the other rights and remedies of Lender . . . apply for 

the appointment of a receiver, trustee, liquidator or conservator 

of the Property, without notice and without regard for the

adequacy of the security for the Debt and without regard for the

solvency of Borrower, any Guarantor or of any person, firm or 

other entity liable for the payment of the Debt.
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Section 9.19 of the mortgage provides, “Borrower hereby waives the 

right to assert a counterclaim, other than a compulsory counterclaim, in any 

action or proceeding brought against it by Lender or its agents.” In addition, 

Section 9.15 of the mortgage provides:

Any assignee of Lender’s interest in and to this Agreement, the 

Note and the other Loan Documents shall take the same free and 

clear of all offsets, counterclaims or defenses which are unrelated 

to such documents which Borrower may otherwise have against 

any assignor of such documents, and no such unrelated 

counterclaim or defense shall be interposed or asserted by 

Borrower in any action or proceeding brought by any such 

assignee upon such documents and any such right to interpose or 

assert any such unrelated offset, counterclaim or defense in any 

such action or proceeding is hereby expressly waived by Borrower.

The loan and loan documents were assigned several times between 

2019 and 2021 and ultimately were assigned to Lender. 

On May 21, 2021, Lender filed an action for breach of contract against 

Borrower alleging that Borrower defaulted on the loan by (1) failing to make 

monthly payments required under the loan documents and (2) diverting its 

tenants’ rents into its own account at TD Bank instead of depositing rents into 

the DACA account specified in the loan documents. On June 4, 2021, Lender 

filed a motion seeking appointment of a receiver. Lender did not request any 

other form of relief in its motion. Borrower filed an answer along with 

counterclaims asserting that Lender committed the first material breach of 

contract by causing one of Borrower’s tenants, Giant Food Stores, to stop 

paying rent to Borrower. In response to Borrower’s answer and 
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counterclaims, Lender alleged that Section 9.15 of the mortgage precluded 

Borrower from raising a counterclaim that Lender committed the first material 

breach, and Section 9.19 precluded Borrower from raising a defense of first 

material breach against an assignee such as Lender. 

The trial court held two days of evidentiary hearings on Lender’s petition 

for appointment of a receiver. Lender furnished evidence that Borrower failed 

to make loan payments in all but one month between December 2020 and 

November 2021, and that at Borrower’s direction, two of Borrower’s tenants 

(WaWa and TD Bank) paid rent into Borrower’s operating account instead of 

the DACA account specified in the loan documents. Other tenants—Target 

Park, Supercuts, Rita’s and South Philadelphia Pediatrics—paid less than the 

full rent due for several months. During 2021, however, Borrower transferred 

over $112,000.00 from its operating account into an account controlled by 

Borrower’s president. Borrower also made other payments out of the 

operating account totaling almost $100,000.00 without divulging the reason

for these payments. Appellee’s Brief at 18-20 (summarizing evidence with 

record citations). 

At the conclusion of the hearings, the court asked Lender what other 

remedies it proposed besides appointment of a receiver, N.T., 11/18/21, at 

42, even though a receivership was the only relief that Lender sought in its 

motion. Lender proposed that the court appoint a receiver or, in the 

alternative, order Borrower to instruct its tenants to deposit all rents into the 
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DACA account and direct Borrower to provide an accounting of all rents that 

Borrower deposited into its own account at TD Bank. Subsequently, Lender 

submitted proposed findings of fact and conclusions of law that made the same 

requests for a receiver or alternative relief.

On December 13, 2021, the trial court issued a memorandum and order 

denying Lender’s motion for a receiver. Although the court found that 

Borrower failed to make monthly payments, it stated that appointment of a 

receiver is a “drastic” remedy, and that Lender had “fallen extremely short” 

of proving any need for a receiver. Trial Court Memorandum, 12/13/21, at 6. 

With regard to Lender’s claim that Borrower had diverted all rents, the court 

claimed that Borrower had paid part of the management fees due under the 

loan documents. In addition, the court observed, “[Borrower] contends that 

these payments are excused because of [Lender’s] breach on several fronts. 

Reasons that debt service has not been paid is to be determined by another 

court hearing and [is] the subject of another court proceeding.” Id.

Although the court denied Lender’s request for a receiver, it accepted 

Lender’s proposed alternate remedy because it “recogniz[ed] the fundamental 

unfairness of [Borrower] not paying the interest due and sporadically 

providing financial and other information that is required under the loan 

documents while simultaneously having the tenants pay rent into [Borrower’s] 

operating account.” Id. at 7. The court entered the following order:

[Borrower shall]
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a. Within 20 business days of the docketing of this Order, instruct 

all Tenants to pay Rents pursuant to the requirements of the Loan 

Agreement, the Deposit Account Control Agreement (the “DACA”), 

and the Cash Management Agreement (including but not limited 

to requiring the Tenants pay their Rents into the DACA Account at 

Wells Fargo), and provide proof to [Lender] and the Court that 

this instruction has been given;

b. Within 30 business days of the docketing of this Order, provide 

[Lender] and the Court an accounting of all Rents paid directly into

[Borrower’s] operating account at TD Bank since January 1, 2021 

(the “Accounting”), and within fifteen (15) business days of 

submission of the Accounting, transfer all such Rents previously 

paid to [Borrower’s] operating account at TD Bank into the Cash 

Management Account at Wells Fargo, and provide proof that this 

transfer has been completed;

c. For the month of October 2021 and forward, provide [Lender]

with the financial information required by Section 4.1.4 of the 

Loan Agreement, as well as monthly operating activity reports 

regarding the rent collections, leasing activity, and the most 

current rent rolls to be provided on the fifteenth (15th) day of 

each month (starting with December 15, 2021) regarding the rent 

collections, leasing activity, and rent roll for the prior month.

Order, 12/13/21.

Borrower timely appealed the order to this Court, and Lender timely 

cross-appealed. One day after Lender’s appeal, the court granted Borrower’s 

motion for stay of the court’s order pending the outcome of the appeals. 

Lender and Borrower complied with Pa.R.A.P. 1925, but the court did not file 

a Pa.R.A.P. 1925 opinion. 

On January 24, 2023, during the pendency of these appeals, the court 

entered an order granting Lender’s motion for summary judgment on 

Borrower’s counterclaims on the ground that Section 9.19 of the mortgage 

prohibited Borrower from raising these counterclaims in this action.
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Borrower raises the following issues in its appeal:

1. Did the trial court err as a matter of law and/or abuse its 

discretion by awarding [Lender] relief where, as the trial court 

found, [Lender] (i) “has fallen extremely short of meeting its 

burden in appointing a receiver,” (ii) “did not present evidence of 

any emergency, loss, waste, injury, dissipation of the property or 

abuse of funds”, and (iii) its allegations of default based upon the 

“divergence and misappropriation of rented from the Property” 

were “incorrect, inaccurate, and unproven”?

2. Did the trial court err as a matter of law and/or abuse its 

discretion by awarding [Lender] equitable relief where [Lender] 

has adequate remedies at law available?

3. Did the trial court err as a matter of law and/or abuse its 

discretion in ordering [Borrower] to direct the tenants to pay their 

rents to the DACA Account and ordering appellants to transfer all 

rents previously paid to it into the Cash Management Account on 

the grounds that (i) such relief constitutes prejudgment 

attachment which is not permitted under Pennsylvania law, (ii) 

even if it was permitted, such relief is not warranted given that 

(a) there is no allegation/claim of fraud and (b) the trial court

expressly found that [Lender] “did not present evidence of any 

emergency, loss, waste, injury, dissipation of the property or 

abuse of funds”, and (iii) awarding such relief substantially 

interferes with appellants’ ability to effectively manage the subject 

property and would negatively impact the tenants of the property?

4. Did the trial court err as a matter of law and/or abuse its 

discretion by entering an order, in the nature of a mandatory 

injunction, compelling [Borrower’s] performance under loan 

documents where (i) there exists an adequate remedy of law for 

appellee, (ii) this is not a “clear case” for contract enforcement, 

(iii) [Lender’s] averments of default under the loan documents is 

the ultimate issue in the case, and (iv) [Borrower’s] performance 

under the loan documents was/is excused by [Lender’s] preoccurring material breaches of the loan documents?

Borrower’s Brief at 4-5.

Lender raises the following issues in its cross-appeal:

1. Whether the appointment of a receiver was warranted, where 

the governing loan documents specifically provide for the 
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appointment of a receiver upon default, and the Borrower 

admitted to payment default.

2. Whether the appointment of a receiver was warranted, where 

the Borrower admitted to diverting Rents and other proceeds from 

the Property to the Borrower’s own operating account rather than 

the Cash Management Account as required, thereby threatening 

the Lender’s security interest in the Property and Rents?

3. Whether the appointment of a receiver was warranted based 

upon the Borrower’s mismanagement of the Property?

4. Whether in light of the Borrower’s demonstrated and admitted 

payment default, and the recognized “fundamental unfairness of 

[Borrower] not paying the interest due and sporadically providing

financial and other information that is required under the loan

documents while simultaneously having the tenants pay rent into

[Borrower’s] operating account,” the trial court appropriately 

exercised its discretion in awarding alternative relief?

Lender’s Brief at 6-7.

In essence, Lender appeals the portion of the order denying its motion 

for receivership, and Borrower appeals the portion of the order requiring the 

alternate remedies directing ongoing deposits of rents into the DACA account,

an accounting, and monthly financial reports. Pa.R.A.P. 311(a)(2) provides 

that an interlocutory appeal may be taken as of right from “an order 

confirming . . . or refusing to confirm [a] . . . receivership or similar matter 

affecting the possession or control of property,” except for matters arising in 

divorce proceedings not relevant here. Under Rule 311(a)(2), we have 

jurisdiction over Lender’s appeal as one from an order refusing to confirm a 

receivership, and we have jurisdiction over Borrower’s appeal as one from an 

order affecting the possession or control of property.
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At the outset, we vacate the court’s determination to award alternative 

relief. The only relief requested in Lender’s motion was an order for a 

receivership. Therefore, the court should have limited its decision to granting 

or denying this request. By asking Lender for alternative remedies during the 

hearings, the court deprived Borrower of its right to file written objections to 

alternative relief in advance of the hearings. More importantly, the court failed 

to explain what doctrine it applied—equitable, legal or otherwise—as the basis 

for awarding relief. Perhaps the court intended to award Lender specific 

performance under the Loan Documents, but we cannot tell for certain,

because there was no claim of specific performance before the court, and 

because the court’s justification for its decision, “fundamental fairness,” is 

untethered to any specific principle. We hold that there is no proper 

foundation in the record for alternative relief. 

Turning to the court’s decision to deny a receiver, our first step is to 

determine the proper standard of review. Lender contends that it is 

contractually entitled to a receiver under the terms of the loan agreement; 

Borrower contends that common law standards for appointment of a receiver 

apply. We agree with Borrower that common law standards apply. 

At common law, the appointment of a receiver is a “severe, and may be 

termed an heroic, remedy,” and “the court . . . will act with the utmost caution”

before making this appointment. McDougall v. Huntingdon & Broad Top 

R. & C. Co., 143 A. 574, 577-78 (Pa. 1928). Receivership of a solvent 
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corporation is a “drastic remedy,” and should only be granted when “(1) the 

right to a receivership is free from doubt, and (2) a receivership is clearly 

required by the facts and circumstances and equities of the case.” Tate v. 

Phila. Transp. Co., 190 A.2d 316, 317 (Pa. 1963). Appointment of a receiver 

“is not to be undertaken lightly,” and “the decision to appoint is within the 

sound discretion of the trial court.” Abrams v. Uchitel, 806 A.2d 1, 8 (Pa. 

Super. 2002). Despite this demanding standard, the trial court has the 

discretion to appoint a receiver when assets are wasted or dissipated, Hankin 

v. Hankin, 493 A.2d 675, 677 (Pa. 1985), or when a borrower defaults on its

loan payments. See Metropolitan Life Insurance Co. v. Liberty Center 

Venture, 650 A.2d 887, 890-91 (Pa. Super. 1994) (mortgagee entitled to 

appointment of receiver where mortgagor unilaterally made payments at 

interest rate of 10% instead of 141⁄2 and 15% required under notes).

Lender argues that Section 8.1(g) of the mortgage governs instead of 

common law. Section 8.1(g) states that “[u]pon the occurrence of any Event 

of Default, Borrower agrees that Lender may . . . apply for the appointment 

of a receiver, trustee, liquidator or conservator of the Property . . .” [emphasis 

added]. Lender reads this text too expansively. “May apply” merely entitles 

Lender to request appointment of a receiver in the event of default, but it does 

not automatically entitle Lender to appointment of a receiver without more. 

The court retains the discretion to grant or deny Lender’s request. Authority 

relied upon by Lender does not require a different result. In three of the cases 
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cited by Lender, the parties expressly agreed that in the event of a default, 

the lender “shall have” the right “to apply [for] . . . and obtain” a receiver, or 

“shall be entitled to” appointment of a receiver, or are entitled to a receiver 

“as a matter of right,” materially different language from the text in this case. 

See Metropolitan Life Ins. Co., 650 A.2d at 891 (“If an Event of Default 

shall have occurred and be continuing, Mortgagee, upon application to a court 

of competent jurisdiction, shall be entitled . . . to the appointment of a

receiver(s) . . . ”); Wells Fargo Bank, N.A. v. InSite Dunmore (O’Neil), 

LLC, 2015 WL 5074421, *5 (CCP Lackawanna Cty. 2015) (mortgage entitled 

lender to appointment of receiver “as a matter of right” and borrower 

“irrevocably consent[s]” to appointment); City Nat. Bank v. 728 Market 

Street, LP, 2012 WL 781185, *5 (CCP Philadelphia Cty. 2012) (“The Lender 

[City National Bank] shall have the absolute and unconditional right to apply 

to any court having jurisdiction and obtain the appointment of a receiver or 

receivers of the Property”). In the fourth case, MSCI 2006-IQ11 Logan 

Boulevard Ltd. P’ship v. Greater Lewistown Shopping Plaza, L.P., 2017 

WL 485958 (M.D. Pa. 2017), the loan agreement provided that “[Lender] may 

apply for the appointment of a receiver to manage and operate the property,”

but it also provided that the borrower “consents, to the extent permitted by 

applicable law, to the appointment of a receiver.” Id. at *2; see also City 

Nat. Bank, 2012 WL 781185, at *5 (borrower “irrevocably consent[s]” to 

appointment). Here, in contrast, Lender does not identify any text in which 
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Borrower consents to the appointment of a receiver without more; nor can we 

find any. The final two cases cited by Lender are unpublished decisions of this 

Court from 2014 and 2016. The Rules of Appellate Procedure prohibit us from 

taking into account any unpublished decision from this Court filed before May 

2, 2019. Pa.R.A.P. 126(b). 

Without a contractual entitlement or right to have a receiver appointed

here, Lender may still seek appointment of a receiver but bears the burden of 

satisfying common law standards to obtain this relief. Although there are no 

citations to relevant law in the trial court’s memorandum, it appears that the 

court applied common law standards to this case, given its use of such terms 

as “waste, injury, dissipation of the property or abuse of funds.” Trial Court 

Memorandum at 6; see Hankin, 493 A.2d at 677 (waste or dissipation of 

assets provides cause for appointment of receiver). Several aspects of the 

court’s decision, however, create concern that it misapplied these standards. 

First, it appears that the court misinterpreted the evidence. The court 

stated that Lender failed to prove the need for a receiver because it could not 

demonstrate that Borrower diverted or mismanaged funds. Borrower, the 

court continued, did not divert or mismanage funds, because it “presented

testimony of a sum of partial management fees being paid to the manager, 

EB Management Corp. (“EBRM”), for providing management services at the 

Property.” Trial Court Memorandum at 6. The evidence demonstrates, 

however, that EBRM is solely owned by Blumenfeld, Borrower’s sole principal. 
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Tr., 11/18/21, at 19. Between January and September 2021, Borrower paid 

EBRM $112,686.13 in management fees. Tr. 11/12/21, at 31-33. By paying

EBRM, Blumenfeld effectively paid himself at the same time he failed to pay 

the debt service owed on the loan. Tr. 11/12/21, at 36-37 (“Q: You’re paying 

the alleged arrearages to your management company, but not your lender, 

correct? A: (No answer.) Q: Is that correct? A: That is correct”). This evidence 

suggests that Borrower diverted monies to a company owned by its principal 

instead of making payments towards the loan. 

Next, there appears to be an inconsistency in the court’s analysis. On 

page 6 of its memorandum, the court denied a receivership because it found 

no abuse of funds or diverting of rents by Borrower. Trial Ct. Memorandum 

at 6. On page 7, however, the court found that Borrower refrained from 

paying the loan while “simultaneously having the tenants pay rent . . . into 

[Borrower’s] operating account,” id. at 7, text which indicates that Borrower 

intentionally failed to pay the loan while simultaneously diverting or 

mismanaging rents. Additionally, on page 6, the court denied a receivership 

because it found that Borrower might have viable defenses, such as 

Borrower’s contention that Lender committed the first material breach by 

interfering with Borrower’s business relationship with Giant. Id. at 6. On

page 7, however, the court “recogniz[ed] the fundamental unfairness” of 

Borrower not paying the loan. Id. at 7. It is difficult to harmonize the 

determination that non-payment by Borrower is “fundamentally unfair” with 
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the determination that Borrower might have meritorious defenses for nonpayment. 

Next, the court’s statement that Lender failed to present evidence of the 

proposed receiver’s qualifications or course of action is belied by the record. 

Lender’s petition (1) recommended Stephen Resinski and his organization, 

Colliers International, as the receiver, (2) listed Resinski’s qualifications, (3) 

proposed a plan for improving tenant satisfaction, maintaining and upgrading 

the Property, reducing costs, and otherwise improving the operation of the 

Property, and (4) submitted a schedule of Resinski’s and Colliers’ proposed 

fees. Lender’s Petition For Appointment of Receiver, ¶¶ 57-58 & exhibits 5, 

6. 

Finally, the court’s decision on January 24, 2023 to dismiss Borrower’s 

counterclaims calls into question whether Borrower has any viable defenses 

to Lender’s action, since Borrower’s defenses appear to rest on the same 

theory as its counterclaims (namely, Lender committed the first material 

breach). 

These concerns require remand for further proceedings as to whether 

appointment of a receiver is warranted under common law.

Order vacated. Case remanded for further proceedings in accordance 

with this memorandum. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/01/2023