Swarb v. Lennox

PETITIONER: Swarb
RESPONDENT: Lennox
LOCATION: Christian County, Kentucky

DOCKET NO.: 70-6
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 405 US 191 (1972)
ARGUED: Nov 09, 1971
DECIDED: Feb 24, 1972

ADVOCATES:
David A. Scholl - for appellants, pro hac vice, by special leave of Court
Philip C. Patterson - for appellees
William L. Matz - for Pennsylvania Savings and Loan League, as amicus curiae

Facts of the case

Question

Media for Swarb v. Lennox

Audio Transcription for Oral Argument - November 09, 1971 in Swarb v. Lennox

Warren E. Burger:

We will hear arguments next in number 6, Swarb against Lennox.

You may proceed Mr. Scholl.

David A. Scholl:

Mr. Chief Justice and may it please the Court.

This is a case instituted by 38 named plaintiffs on behalf of a class of all persons in Pennsylvania who would sign contracts containing confession-of-judgment clauses.

I will refer to the appellants in discussing this case as the consumers since they are all consumers and the appellees as the creditors.

I would also like permission to request that five minutes of my time be reserved for rebuttal.

The Pennsylvania State -- we have a Law in Pennsylvania that permitted and in fact, did in the case of these 38 named consumers, the prothonotary who is merely a Court Clerk to ministerially enter judgments against the consumers without their having had any notice nor opportunity to be heard prior to the entry of that judgment.

Now, the reason that, the only thing that authorized the prothonotary to do this other than the State Law was a clause which was contained in the contracts that each of the consumer signed.

This clause, of course is the Confession-of-Judgment Clause and I think that there are two significant characteristics of the Confession-of-Judgment Clause.

First, it is one of the many clauses that it is very in prime fine print in contract.

It is a difficult clause to understand, many attorneys do not understand what the effect of the clause is.

And I think a second important aspect, is that Confession-of-judgment Clauses are contained in almost every contract in Pennsylvania and which credits is extended in any form.

That is to say, loan contracts, retail installment sale contracts, in leases, there is a confession-of-judgment and ejectment, and of course also in mortgage contracts.

Well, you have in footnote 1 on page 12 of your brief, what you say is a typical wording of such a clause?

David A. Scholl:

Yes.

Is there anywhere in the appendix or elsewhere where we could see how it looks in print, if you just referred it to fine print?

David A. Scholl:

Yes, there is Your Honor.

There are 80 exhibits.

Actually, there are 81 exhibits, 80 of the exhibits are contracts, so that --

In the initial records?

David A. Scholl:

Yes, they are the contracts that each of the main plaintiffs signed in the --

They are here in the appendix that would show as that?

David A. Scholl:

Your Honor, there was no appendix in this case, so --

We just have the original one?

David A. Scholl:

As we move that to proceed in the original record.

Alright, thank you.

But this, the wording is how a typical one appears, do I it right on footnote 1 on page 12 of your brief?

David A. Scholl:

That is right Your Honor.

Now, the confession-of-judgment that the prothonotary may enter, may be entered immediately.

After the contract is signed, that is it can be entered even before there is any allegation of fault.