Arena Objection to Driscoll Claim

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March 31, 2026 Get Citation Alerts Download PDF Add Note

In re: Thomas W. Arena

United States Bankruptcy Court, D. Massachusetts

• Citations: None known
• Docket Number: 23-10737

• Precedential Status: Unknown Status

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• Authorities (11)

• Cited By (0)

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Trial Court Document

UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS

)
In re: ) Chapter 7
) Case No. 23-10737-CJP
THOMAS W. ARENA, )
)
Debtor )
)

MEMORANDUM OF DECISION AND ORDER
ON THE DEBTOR’S OBJECTION TO CLAIM

Chapter 7 debtor, Thomas W. Arena (the “Debtor”) objects ECF No. 32 to the amended proof of claim Claim No. 2-2 filed by Robert W.
Driscoll and Laina C. Driscoll, Individually and as Trustees of the Quissett Partners Trust1
(collectively, the “Driscolls”). I must decide the issue of whether the Claim may include post-
judgment interest and costs of collection, including post-judgment attorneys’ fees and expenses.
After considering the Objection and the Debtor’s Supplemental Reply Brief [ECF No. 40] in
support thereof, the Driscolls’ Response [ECF No. 35] and Supplemental Response [ECF No.
41], the arguments of counsel at a hearing, and the entire record in this case, I will sustain the
Objection as set out below.
I. Background
On September 11, 2023, the Driscolls filed an initial secured claim in the amount of
$612,252.13 [Claim No. 2-1]. The Driscolls asserted the claim was secured by “Real Estate”
perfected by a “Writ of Attachment” and attached a “Statement of Claim” explaining that the
basis for the claim was “amounts due under certain promissory notes and orders and judgments

1 The Claim references “Trustees of the Quissett Partners Trust.” In the briefing and the attachment to the Claim,
the claimants are identified as “Trustees of the Quissett Partners Nominee Trust.” These appear to be the same trust
and the discrepancy is irrelevant for purposes of this Memorandum of Decision and Order.
in certain actions” before the United States District Court for the District of Massachusetts
captioned as Arena, et al. v. Driscoll, et al., Civ. A. No. 16-cv-11562-DLC (the “District Court
Action”) and the Pennsylvania Court of Common Pleas in a case captioned as Driscoll v. Arena,
et al., Nos. 03286, 03288, and 03293 (the “Pennsylvania Action”). The Statement of Claim
further provided that the amounts comprising the $612,252.13 claim consisted of principal of

$335,569.57 and interest of $276,682.56 through May 9, 2023. On February 28, 2024, the
Driscolls amended their claim, increasing the secured amount to $1,276,374.82.2 The Claim
states that it is secured by “Real Estate” and that the basis for perfection of the Claim is a
“Judgment Lien/Writ of Attachment.” The Claim states that the value of the property securing
the Claim is $2,400,000.
The “Statement of Amended Claim” annexed to the claim further provides that, as of the
Petition Date, the principal and interest “due under the Notes” was $615,892.69, which consisted
of principal of $335,569.57 and interest of $280,323.12. In addition to the principal and interest,
the Statement of Amended Claim includes attorneys’ fees and costs of $660,482.13, as of

January 31, 2024, incurred as “reasonable costs of collection” of the $183,861 promissory note.
It is apparent from the record that these parties have had a long history of disputes and
litigation. In 2004, the Debtor and his brother John (together, the “Arenas”) proposed to Robert
Driscoll that they jointly purchase and develop a house and three cottages in Nantucket,
Massachusetts (the “Project”). Driscoll agreed to lend each of the Arenas $183,861 to contribute
to the Project, and the Debtor and his brother were each to have a 25% interest in the Project. On
March 24, 2005, each of the Arenas executed a promissory note payable to Robert Driscoll in the

2 The Claim appears to include two Official Form 410 filings, each with slightly different claim amounts in Part 2.7,
one of which is signed by counsel and the other by the claimant. Given the discrepancy, I reference the secured
claim amount calculated in the Statement of Amended Claim attached to the Claim.
amount of $183,861. A copy of the promissory note executed by the Debtor in favor of Driscoll
is attached to the Objection as Exhibit B (the “Promissory Note”). When the note was not
repaid, litigation followed on several fronts.
In 2016, Driscoll commenced the Pennsylvania Action to collect on the Promissory Note
and sought judgment, relying on a “confession of judgment” provision in the Promissory Note.

Ultimately, the Pennsylvania Action resulted in a judgment in favor of Robert Driscoll against
the Debtor after an appeals court determined that the “confession of judgment” should be
enforced in the amount of $335,569.57 (the “Pennsylvania Judgment”). See Driscoll v. Arena, 213 A.3d 253, 256-57, 260-61 (Pa. Super. Ct. 2019) (holding that challenge to the confessed
judgment was untimely).
Before final judgment in the Pennsylvania Action, the Arenas commenced the District
Court Action, where they sought to establish a constructive trust over the Project and obtain a
declaration regarding their ownership interests in the Project. While the District Court Action
was pending, the Project’s real estate was sold, and the District Court ordered that the net

proceeds of the sale, after payment of usual and customary real estate conveyance costs and lien
payoffs, be deposited with the Clerk of the District Court pending further order of the Court. In
2022, after additional litigation and a partial release from escrow, the District Court entered
summary judgment in favor of the Driscolls, giving full faith and credit to the Pennsylvania
Judgment. Arena v. Driscoll, 642 F. Supp. 3d 190, 196 (D. Mass. 2022). The details of
proceedings after judgment are set out in the Driscolls’ Response, but ultimately the Driscolls
were paid the amounts from escrow, which amounts were applied to reduce the Debtor’s
outstanding indebtedness under the Pennsylvania Judgment.
In addition to the District Court Action, on November 1, 2021, Robert Driscoll filed an
action in the Nantucket District Court Department of the Massachusetts Trial Court (Case No.
2188FJ000001) (the “Nantucket Enforcement Action”) to enforce the Pennsylvania Judgment.
That court entered judgment in favor of Robert Driscoll and, on February 14, 2022, issued an
execution against the Debtor in the total amount of $566,615.96, which included the amount of

the Pennsylvania Judgment ($335,569.57), plus interest from the date that the Pennsylvania
Judgment was entered (May 25, 2016) to the date of the Execution at an annual rate of 12%
($230,851.39), and post judgment costs of $195.00. Driscoll caused the Execution issued by the
Nantucket District Court to be recorded on March 14, 2023, in the Nantucket County Registry of
Deeds at Book 1931, Page 142, within 90 days of the Petition Date.
The recited facts are not contested in any material way. The Objection centers on legal
fees and costs claimed for periods after entry of the Pennsylvania Judgment. “The Debtor . . .
requests that his objection to Amended Claim 2-2 be sustained and that the claim amount be
reduced be reduced by the amount of all attorneys[’] fees, sought, $660,482.13, which are not

included in the Pennsylvania Judgment and the subsequent Execution issued by the Nantucket
District Court.” Obj., ¶ 39. Alternatively, if this Court rules that post-judgment attorneys’ fees
and costs are properly asserted in the Claim, the Debtor objects to the reasonableness of those
fees and costs, which will require an evidentiary hearing.
II. Legal Standards and Analysis
The parties have focused their briefing and arguments on whether Pennsylvania law
permits a claim for attorneys’ fees and costs that have accrued after entry of the Pennsylvania
Judgment as asserted in the Amended Claim. Because no party has argued otherwise, I will
apply Pennsylvania law of merger,3 with respect to which the Third Circuit Court of Appeals has
stated:
“It is elementary that judgment settles everything involved in the right to recover,
not only all matters that were raised, but those which might have been raised. The
cause of action is merged in the judgment which then evidences a new obligation.”
Lance v. Mann, 360 Pa. 26, 60 A.2d 35, 36 (1948) (citations omitted). The doctrine
of merger of judgments thus provides that the terms of a mortgage are merged into
a foreclosure judgment and thereafter no longer provide the basis for determining
the obligations of the parties. In re Presque Isle Apartments, 112 B.R. 744, 747 (Bankr. W.D. Pa. 1990); see In re Herbert, 86 B.R. 433, 436 (Bankr. E.D. Pa. 1988)
(“The Debtor is, in our view, correct in her assertion that ‘[t]he mortgage is merged
in a judgment entered in a mortgage foreclosure action’ in Pennsylvania.”) (quoting
25 P.L.E. 85 (1960); citing Murray v. Weigle, 118 Pa. 159, 11 A. 781, 782 (1888);
Hartman v. Ogborn, 54 Pa. 120, 122–23 (1867)); see also In re Roach, 824 F.2d
1370, 1377 (3d Cir. 1987) (“In New Jersey, as in many states, the mortgage is
merged into the final judgment of foreclosure and the mortgage contract is
extinguished. As a result of this merger, there is no longer a mortgage . . . .”)
(citations omitted).
In re Stendardo, 991 F.2d 1089, 1094–95 (3d Cir. 1993), as amended (June 21, 1993).
Pennsylvania law recognizes an exception to the merger doctrine where the parties have
clearly and unambiguously provided in a contract that certain obligations will survive entry of a
judgment. See id. at 1095 (collecting cases); see also EMC Mortg., LLC v. Biddle, 114 A.3d
1057, 1068 (Pa. Super. Ct. 2015) (post-foreclosure judgment attorneys’ fees allowed where
security instrument provided that the creditor was “entitled to collect all expenses incurred in
pursuing the remedies [of a foreclosure action], including, but not limited to, attorneys' fees and
costs of title evidence.”). On post-judgment motion of a party, Pennsylvania courts may amend a
judgment to reassess damages to include attorneys’ fees and costs where such fees and costs are

3 Under Massachusetts law, entry of judgment or issuance of an execution in the Nantucket Enforcement Action
would not operate to merge with or supersede the Pennsylvania Judgment whether domesticated under the
Massachusetts Uniform Enforcement of Foreign Judgments Act or in a separate action to enforce the judgment. See,
e.g., Mass. Gen. Laws ch. 218, § 4A; Berg v. Ciampa, 180 N.E.3d 1010, 1013 (Mass. App. Ct. 2021) (noting that the
UEFJ “does not preclude other available remedies for a judgment creditor, provided that the creditor does not seek
duplicative relief.”); Moore v. Justs. of Mun. Ct. of City of Bos., 197 N.E. 487, 488 (Mass. 1935) (original
Massachusetts judgment not merged with subsequent action upon the judgment in Maine).
contractually provided and contemplated to survive a judgment. See In re Cohen-Harvin, 571
B.R. 672, 675–76 (Bankr. E.D. Pa. 2017); see also Biddle, 114 A.3d at 1068 (recognizing trial
court’s inherent authority to reassess judgment, but reversing on interpretation of mortgage
provision). Where a Pennsylvania court judgment could be reassessed to include post-judgment
attorneys’ fees, a bankruptcy court may do the same and approve such fees as a claim against the

estate. See, e.g., In re Cohen-Harvin, 571 B.R. at 677 (“The bankruptcy court is not modifying a
state court judgment by allowing a claim that includes amounts that could be added to a state
court judgment through reassessment.”) (citing In re Rorie, 98 B.R. 215, 220 (Bankr. E.D. Pa.
1989)); In re Presque Isle Apts., 112 B.R. 744, 747 (Bankr. W.D. Pa. 1990).
Here, the Promissory Note provides for the payment of “reasonable costs of collection
including reasonable attorney’s fees” . . . “[i]n the event the Promissory Note is placed in the
hands of an attorney or attorneys for the enforcement of any obligation set forth herein.”4 The
Driscolls argue that this clause entitles them to recover attorneys’ fees incurred in the
enforcement of the payment obligations under the note, even after the entry of judgment.5 The

Debtor contends that the doctrine of merger precludes the recovery of post-judgment attorneys’
fees, as the judgment entered in the Pennsylvania Action did not include such fees and the
language of the Promissory Note does not clearly evidence an intent to preserve the right to
attorneys’ fees post-judgment. The Debtor further asserts that the “confession of judgment”
provision in the Promissory Note provides for attorneys’ fees in the amount of 5% of unpaid
amounts to be included in any confessed judgment. This provision, according to the Debtor,

4 The full provision is: “COLLECTION COST. In the event this Promissory Note is placed in the hands of an
attorney or attorneys for the enforcement of any obligation set forth herein, Borrower agrees to pay, in addition to
principal and interest, reasonable costs of collection including reasonable attorney’s fees.”

5 I will refer to the “Driscolls” while recognizing that the record appears to demonstrate that the Pennsylvania
Judgment was entered in favor of Robert Driscoll. This distinction is not relevant to this ruling.
conflicts with the “collection cost” provision and belies any position that the Promissory Note
clearly contemplated that post-judgment legal costs would survive a judgment. In addition to the
Debtor’s argument that there was no clear intent for an attorneys’ fees provision to survive
merger with a judgment, the Debtor argues that the remedy selected by the Driscolls to seek
judgment based on the “confession of judgment” provision in the Promissory Note now

precludes the Driscolls from seeking post-judgment legal fees and costs because it exceeds the
amount confessed and provided in that judgment.6
Courts have considered reassessment or survival of obligations in the context of a
mortgage foreclosure, which, under Pennsylvania law, appears to require a judicial process
resulting in a final judgment. These courts have held that the terms of a mortgage are merged
into a foreclosure judgment and, thereafter, no longer provide the basis for determining the
obligations of the parties. See, e.g., In re Stendardo, 991 F.2d at 1094; In re Presque Isle
Apartments, 112 B.R. at 747; In re Herbert, 86 B.R. 433, 436 (Bankr. E.D. Pa. 1988) ("The
Debtor is, in our view, correct in her assertion that 'the mortgage is merged in a judgment entered

in a mortgage foreclosure action' in Pennsylvania.”) (quoting 25 P.L.E. 85 (1960)) (citing
Murray v. Weigle, 11 A. 781, 782 (Pa. 1888)); Hartman v. Ogborn, 54 Pa. 120, 122-23 (1867).
When considering the contractual exception to the merger doctrine in the context of a
mortgage foreclosure, courts have scrutinized language in different contexts, but have found that
provisions may survive merger with a judgment both where expressly stated or implied in
underlying agreements. For example, in Biddle, an appeals court ruled that post-judgment

6 The provision states: “CONFESSION OF JUDGMENT. Borrower (and each of them, if more than one) hereby
irrevocably authorizes the Prothonotary or any attorney of any court of record in Pennsylvania or elsewhere to
appear for and confess judgment against Borrower (and each of them if more than one) for any and all amounts
unpaid on this Promissory Note, including interest thereon to date of payment together with fees of counsel in the
amount five percent (5%) of the foregoing and costs of suit . . . .”
interest would accrue at the contract rate rather than the judgment rate where a mortgage
expressly provided that the interest provision would survive merger with a foreclosure judgment.
114 A.3d at 1071 (the mortgage provided that “the interest rate payable after a judgment is
entered on the [n]ote or in an action of mortgage foreclosure shall be the rate payable from time
to time under the [n]ote.”). In that same case, the court considered language regarding payment

of attorneys’ fees that was less explicit and still determined that that language “clearly and
unambiguously” evidenced the parties’ agreement that post-judgment attorneys’ fees incurred in
the foreclosure process were intended to survive merger of the mortgage with the foreclosure
judgment:
In construing the plain meaning of the mortgage, we note that paragraph 18 clearly
and unambiguously states that EMC is “entitled to collect all expenses incurred in
pursuing the remedies [of a foreclosure action], including, but not limited to,
attorneys' fees and costs of title evidence.” (emphasis added). We read this
provision to mean that recoverable expenses include those that are necessary to the
pursuit of the foreclosure action. The types of recoverable expenses that are
expressly identified in paragraph 18 support this interpretation, i.e. attorneys' fees
and costs of title evidence. Thus, it was not error for the trial court to grant attorneys'
fees and costs of title as those expenses survived the judgment under the plain terms
of the parties' security agreement.

Id. at 1068. Other courts have relied on language in ancillary agreements to hold that continuing
obligations survived a judgment. See, e.g., In re Clark & Grind Polish, Inc., 137 B.R. 172, 174 (Bankr. W.D. Pa. 1992) (finding that language in an asset purchase agreement and promissory
note providing for payment of the “costs of suit and an attorney’s commission for collection of
the total indebtedness” did not merge with a foreclosure judgment on a related mortgage)
(alteration in original); see also In re Stendardo, 991 F.2d at 1097 (distinguishing Clark on the
basis that other agreements provided an independent basis for the collection of post-judgment
attorneys’ fees and costs).
The Debtor relies on In re Stendardo, in which the Third Circuit Court of Appeals
considered the contractual exception to the merger doctrine in the context of an effort by a
mortgage holder to collect certain post-judgment expenses. In that case, the court considered
language almost identical to that relied on by the Clark court and observed:
Despite the similarity of language, Clark is distinguishable from the present case.
The creditor in Clark obtained a confessed judgment on the promissory note.
Notwithstanding the judgment, the mortgage and asset purchase agreement
independently provided for the creditor's recoupment of attorneys' fees and costs.
The confessed judgment on the promissory note did not extinguish the independent
provisions of the mortgage and asset purchase agreement.
In the present case, FNMA obtained a default judgment in foreclosure on the
Mortgage itself. FNMA argues that “the provisions of the Mortgage which allow
FNMA to add the Post–Judgment Expenses to its secured claim are incorporated
into FNMA's Note which arguably survives merger as well.” Brief for Appellant at
32 n. 10 (citing App. at 57). The Note and the Mortgage, “although separate and
distinct instruments, are securities for one and the same debt.” 2 Ladner on
Conveyancing in Pennsylvania § 12.01, at 4 (John Makdisi ed., rev. 4th ed. 1979).
A mortgagee is not limited to a single remedy upon default, but he cannot recover,
in the aggregate, more than he is owed. Id. § 12.09(f), at 18. Here, FNMA admits
that the value of the Property is at least $7,000.00 greater than FNMA's secured
claim, including the Post–Judgment Expenses. To decide that the Mortgage, but not
the Note, merged with the Judgment would enable FNMA to obtain double
recovery by execution on the Judgment in foreclosure, followed by execution on
the Judgment obtained on the Note securing or evidencing the same debt as the
Mortgage.
FNMA's argument also ignores the fact that the Mortgage ceased to exist when
judgment was entered. Thus, even if the Note had survived the merger, there
would be no Mortgage terms remaining for incorporation in the Note. Unlike
the mortgage in Clark, the Note here does not independently provide for the
Debtors' obligation to pay the Post–Judgment Expenses. This Court agrees
with the district court's holding that the terms of the Mortgage did not, as a
matter of law, indicate the parties' intent that the Debtors pay the Post–
Judgment Expenses. Thus, because the Mortgage merged into the Judgment,
FNMA may not recover its Post–Judgment Expenses for taxes and insurance from
the Debtors.
Id. (emphasis added).
The decision seems to suggest that the Stendardo court considered the language of the
specific provision in coming to its determination - in addition to distinguishing Clark on the
basis that Clark relied on ancillary agreements. Cf. In re Bernadin, 609 B.R. 26, 39–40 (Bankr.
E.D. Pa.), opinion vacated in part on reconsideration, 610 B.R. 787 (Bankr. E.D. Pa. 2019)
(examining the differences in relevant language in the applicable contracts in Biddle and
Stendardo).
Here, I must determine whether the language of the Promissory Note executed by the

Debtor “clearly evidences [the parties'] intent to preserve the effectiveness of [the attorneys’
fees] provision post-judgment.” In re Stendardo, 991 F.2d at 1095. Again, the Promissory Note
provides that the Debtor is obligated to pay “reasonable costs of collection including reasonable
attorney’s fees” . . . “[i]n the event the Promissory Note is placed in the hands of an attorney or
attorneys for the enforcement of any obligation set forth herein.” The Driscolls assert that “any
obligation set forth herein” includes the Debtor’s obligation to pay the amounts loaned with
interest and evidences the parties’ intent that the Debtor’s obligation to pay attorneys’ fees
incurred post-judgment to collect principal and interest would survive merger with the
Pennsylvania Judgment. The Debtor takes the opposite position, presumably that the obligations

under the Promissory Note have been enforced - resulting in the Pennsylvania Judgment.
In determining that a borrower’s obligations under a mortgage to pay real estate taxes and
insurance merged into a foreclosure judgment and were no longer enforceable, the Stendardo
court observed:
Although the Mortgage clearly obliges the Debtors to pay the taxes and insurance
premiums at issue, it lacks any language indicating that this obligation is to survive
foreclosure. The parties could have easily included such a provision in the
Mortgage had this been their intent. As written, the Mortgage is unambiguous. It
does not require the Debtors to pay real estate taxes and insurance premiums
following the merger of the Mortgage into the Judgment.
991 F.2d at 1095–96.
In contrast, the Biddle court found clear intent that a provision requiring payment of
certain post-foreclosure judgment fees and costs would survive merger:
In construing the plain meaning of the mortgage, we note that paragraph 18 clearly
and unambiguously states that EMC is “entitled to collect all expenses incurred in
pursuing the remedies [of a foreclosure action], including, but not limited to,
attorneys' fees and costs of title evidence.” (emphasis added). We read this
provision to mean that recoverable expenses include those that are necessary to the
pursuit of the foreclosure action. The types of recoverable expenses that are
expressly identified in paragraph 18 support this interpretation, i.e. attorneys' fees
and costs of title evidence. Thus, it was not error for the trial court to grant attorneys'
fees and costs of title as those expenses survived the judgment under the plain terms
of the parties' security agreement.

114 A.3d at 1068.
While Biddle might be read to conflict with Stendardo in that the language of applicable
contractual provisions was very similar, one court has focused on the language differences to
explain the different outcomes:
The different outcomes are due to differences in the relevant language of the
provisions of the documents being construed by the court, not an irreconcilable
conflict in the legal standards being applied.

The Stendardo mortgage described the remedy for default as the right to proceed to
judgment and execution to recover “said” principal, interest and advances for taxes,
water and insurance. The Third Circuit read that phrase to refer back to the phrase
“default . . . in the payment of any installment . . . or any monthly payment.” Thus,
the right to recover referenced in this provision is the right to recover amounts
included in the pre-judgment default. Hence, the Court thus concluded that the
mortgage “lacks any language indicating that this obligation is to survive
foreclosure.” 991 F.2d at 1096.

The language in the mortgage in Biddle is different. The Biddle mortgage refers to
the right to recover “expenses incurred” in pursuing the Section 22 remedies, rather
than the recovery of sums related to the pre-judgment default, as in Stendardo. In
short, different mortgage provisions, different text -- no conflict between the cases.

In re Bernadin, 609 B.R. at 40.
The contractual exception to the merger doctrine under Pennsylvania law most often
appears to involve language similar or identical to the language construed by the Biddle court in
cases involving foreclosure judgments. See TD Bank, N.A. v. Massengill, No. 3047 EDA 2023, 2025 WL 1330285, at *6-7 (Pa. Super. Ct. May 7, 2025), re-argument dismissed (June 3, 2025);
see also In re Bernadin, 609 B.R. at 39–41; In re Culler, 584 B.R. 516, 520–22 (Bankr. E.D. Pa.

2018); In re Cohen-Harvin, 571 B.R. at 679–80. In those cases, courts have followed Biddle and
determined that post-foreclosure judgment attorneys’ fees relating to the foreclosure process and
remedies specified in the provision survive merger with the judgment. Id. As noted above, some
of these cases rule this way even where other provisions in the mortgage expressly address
survival. See Biddle, 114 A.3d at 1071; Massengill, 2025 WL 1330285, at *6-7; In re Bernadin,
609 B.R. at 40–41; In re Culler, 584 B.R. at 521–22.
While less than clear, I view the language in the Promissory Note to be closer to the
language in Stendardo than Biddle, in that it creates an obligation under the Promissory Note to
pay legal costs to enforce all obligations under the Promissory Note, including the right to

payment - rather than the right to collect legal costs incident to a specific remedy such as
foreclosure where those costs would necessarily be incurred after a judgment had entered. I do
not view the “any obligation set forth herein” language to clearly evidence an intent on the part
of the parties that the attorneys’ fees provision would survive merger with a judgment on the
Promissory Note. While not necessarily dispositive, “the parties could have easily included [an
express provision that post-judgment legal costs would survive merger with a judgment] had this
been their intent.” In re Stendardo, 991 F.2d at 1095–096. The Driscolls do not cite controlling
or persuasive authority interpreting Pennsylvania law holding that similar language regarding
legal fees incurred enforcing all obligations under such an agreement evidenced clear intent that
such a provision would survive merger with a judgment. As discussed, the cases cited involve
ruling where other agreements provided an independent basis for recovery or where courts have
enforced the Biddle interpretation of language in mortgages regarding foreclosure remedies.
The “confession of judgment clause,” which provides for a recovery of attorneys’ fees
based on 5% of unpaid amounts due under the Promissory Note, is further evidence that the

parties did not clearly and unambiguously reach an agreement that the broader “collection costs”
provision would survive merger with a confessed judgment. It is not clear whether that provision
should be read to provide an independent remedy, a cap on fees, or an election of remedy. The
fact that those issues are presented supports the ruling that the “collection costs” provision does
not evidence a clear and unambiguous agreement that an obligation to pay legal costs were
intended to survive merger with a judgment. The Driscolls obtained judgment based on the
“confession of judgment clause.” That provision has an attorneys’ fees provision that does not
contemplate collection of future enforcement fees and expenses. While the Driscolls assert that
the other “collection costs” provision can be read to be an additional remedy, that is not clear -

and the provision, itself, does not express a clear intent that costs to enforce a judgment would
survive a merger with the judgment.
As such, in my assessment, the Driscolls would not be permitted to amend the
Pennsylvania Judgment under Pennsylvania law, and the Objection must be sustained because
the Promissory Note has merged with the Pennsylvania Judgment. See Lance v. Mann, 60 A.2d
35, 36 (Pa. 1948).
III. Conclusion
For the reasons above, the attorneys’ fees provision of the Promissory Note does not fall
within the contractual exception to the Pennsylvania merger doctrine. As such, the Objection is
sustained as provided herein and the Claim is allowed in the amount stated in the execution
issued in the Nantucket Enforcement Action, plus interest at the Pennsylvania judgment rate
from that date to the petition date. The Debtor does not appear to object to the Claim being
allowed as a secured claim. Because the value of the judgment lien in favor of Robert Driscoll
resulting from the levy on 1 Ticona Way, Nantucket, Massachusetts appears to substantially
exceed the amount of the claim, the Driscolls are also entitled to postpetition interest at the
Pennsylvania judgment rate under 11 U.S.C. § 506 (b).’ Because of my ruling, I do not reach and
need not rule on the reasonableness of the post-judgment fees that have been disallowed by this
Order or any allocation issues that have been raised.

Dated: March 31, 2026 By the Court,

Christopher J. Panos
United States Bankruptcy Judge

7 The Debtor notes in his pleadings that the Driscolls levied execution in the Nantucket enforcement action within 90
days of the Debtor filing his chapter 7 petition. ECF No. 40, § 22. The Debtor has also claimed a homestead
exemption in the | Ticona Way property. The Objection did not address the timing of recording the levy to the
objection, and, as of this date, the Debtor has not sought to avoid any lien as a preference or as impairing a claimed
exemption.

14