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HomeMy WebLinkAbout00-00797 ALLFIRST BANK, SUCCESSOR TO DAUPHIN DEPOSIT BANK AND TRUST COMPANY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW Plaintiff NO. ..2000- "717 Cu;(/~ v. CONFESSION OF JUDGMENT H. DANIEL BEIGH III and ONEIDA H. BEIGH Defendants NOTICE To: H. DANIEL BEIGH III and ONEIDA H. BEIGH, Defendants You are hereby notified that on February ~, 2000, judgment by confession was entered against you in the sum of $115,000 in the above caPtio~ned e. Dated: February ~, 2000 (f( O"",-:/'..: ..) i)._ I othonotary YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR 4th Floor, Cumberland County Courthouse Carlisle, Pennsylvania 17013 (717) 240-6200 I hereby certify that the following is the address of the defendant(s) stated in the certificate of residence. H. DANIEL BEIGH III and ONEIDA H. BEIGH 2300 Foxfire Circle Mechanicsburg, PA 17055 A~ Plalotiff(,) - ,- .' ',l.._' ", _~<" , A H. DANIEL BEIGH III and ONEIDA H. BEIGH Usted esta siendo notificando que el de February del 2000, se anoto en contra suya un fallo por confesion en la suma de $115,000 en el caso mencionado en el epigrafe. FECHA: February _, 2000 Protonotario USTED DEBE LLEVAR IMMEDIATAMENTE ESTE DOCUMENTO A SU ABOGADO. SI USTEO NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VAYAA LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. COURT ADMINISTRATOR 4th Floor, Cumberland County Courthouse Carlisle, Pennsylvania 17013 (717) 240-6200 Certifico que la siguiente direccion es la del defendido/a segun indicada en el certificado de residencia: H. DANIEL BEIGH III and ONEIDA H. BEIGH 2300 Foxfire Circle Mechanicsburg, PA 17055 ~~emaoda"te -2- . -,,~ -"-,;:;-,,--,, <', -",';.,^ - -::-'~^;"--"..,-. ':','---~-_,,<;\;i,> .'-__,'r=,__,-^, . - . ~~ ',~,,- , ,-,,; ,-;,---"'-:~" --;, , ,-"-,,,---:-+,;:<:-,-,-> "',c;: , ALLFIRST BANK, SUCCESSOR TO DAUPHIN DEPOSIT BANK AND TRUST COMPANY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Plaintiff NO. v. CONFESSION OF JUDGMENT H. DANIEL BEIGH III and ONEIDA H. BEIGH Defendants COMPLAINT 1. Plaintiff is Allfirst Bank, a Maryland state-chartered commercial bank, successor to Dauphin Deposit Bank and Trust Company, with an office at 213 Market Street, Harrisburg, Pennsylvania 17101. 2. Defendants are H. Daniel Beigh III and Oneida H. Beigh, adult individuals, whose address is 2300 Foxfire Circle, Mechanicsburg, Pennsylvania 17055. 3. On or about August 25, 1997, Defendants, for good and valuable consideration, executed and delivered a Suretyship Agreement (the "Suretyship") to Plaintiff with respect to the obligations of Phoenix Industrial, Inc. A true and correct copy of said Suretyship is attached hereto, made a part hereof and marked Exhibit "A". 4. The Suretyship referred to in Paragraph 3 above has not been assigned by Plaintiff to any person or organization. .", C"., _.~ ,""",.",,,,,, :'-::J.-~' ,-. '..'.'- 'i_ _~",' ~_ "-'- -~~"-,-- ,- O"H ~" ,,:'.j:<,:'.._';:':;"- .-.-,.,'; 5. Judgment has not been entered on the Suretyship referred to in Paragraph 3 above in any jurisdiction. 6. The Suretyship provides that Plaintiff may confess judgment against Defendants for their total liability on and under the Suretyship, plus interest, attorney's fees of fifteen percent (15%) and court costs. 7. The total liability of Defendants on and under the Suretyship is $100,000. Fifteen percent (15%) of said sum is $15,000. 8. Plaintiff has been advised and, therefore, avers that Defendants executed the Suretyship referred to in Paragraph 3 above for business purposes. WHEREFORE, Plaintiff demands judgment against Defendants in the sum of $115,000, together with costs of suit. Date: February ~, 2000 KEEFER WOOD ALLEN & RAHAL, LLP By: ~pePinSkY'Jr. Attorney I.D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Allfirst Bank, successor to Dauphin Deposit Bank and Trust Company -2- '-,.- . , '~_ ~"",;;"c_,, ".-' " ,"''' 0.-" , o~, ;;.,~ '" ',,,_,';_ _" ,_' ~~- -- ,-"",- -:/': '-,'~ - "I ' .,_'_ :~':~, -: "~""'k-__~"-' '-","," -',,-_1.'2" VERIFICATION The undersigned Sean E. Doherty, hereby verifies and states that: 1. He is an officer of Allfirst Bank, successor to Dauphin Deposit Bank and Trust Company, Plaintiff herein; 2. He is authorized to make this Verification on its behalf; 3. The facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief; and 4. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. S 4904, relating to unsworn falsification to authorities. ~ t:-.'t'1 ~._- Sean E. Doherty Dated: February r2000 SURETYSHIP AGREEMENT '"I JAUPHIN DEPOSIT BANK AND TRUST COMPANY BANK OF PENNSYLVANIA . FARMERS BANK . VALLEYBANK . \J <--':) , '. '-, (Bank of Pennsylvania. Farmers Bank and Valleybank are divisions of Dauphin Deposit Bank and Trust Company) Da'. ~/.J..S-l97 . . . ~~r value recei\l~d, the U~dersigned, jointly and severally, ~ereby unconditionally agree to make prompt payment of all obligatior)s, indebtedness and liabilities due Dauphin DeposIt Bank and Trl:'st Company, h.eremafter called "Bank,u of any kind, whether now existing or hereafter arising, due or which may become due. whether by acceleratIon or otherWIse. absolute or contingent. joint or several. direct or indirect, secured or unsecured by Phoenix Industrial Inc. hereinafter called "B?rrowe;r." all $uch o?'igations being hereInafter further describ~~ 81'!d C?HectlveJy called t~e "Li~bilitles.q and the Undersigned agree(sl to pay all ex~e,:~e.s (lncludmg attorneys fees and legal expenses. whether or not litigation IS commenced) paid or mcurred by the Bank in endeavoring to collect :he liabilities. or ~ny p';'rt thereof. ~ether. or ~ot b,;,nkruptcy has been declared. and in enforcing this Suretyship Agreement. The liability of the UnderSigned hereunder IS a primary and direct obligation Without regard to any other obligor or security or collateral held by the Bank. The Undersigned hereby waive all notices of any character whatsoever with respect to this Suretyship Agreement and the liabilities of the Borrower for, which the Suretyship Agreement has been executed. including but not limited to notice of the acceptance hereof and reliance hereon and notice of defa-ult by the Borrower. The Undersigned hereby give consent to the Bank to the taking of, or failure to take, from time to time. without notice to the ~ndersigned. any action of any nature whatsoever with respect to the Liabilities of the Borrower. with respect to any rights against any person or persons. Including the Borrower and any of the Undersigned. in any property. inclUding. but not limited to, any postponements. compromises. indulgences. waivers. extensions. exchanges, releases, and satisfactions. The Undersigned shall remain fully liable on this Suretyship Agreement. notwithstanding any of the foregoing. This Suretyship Agreement shall in all respects be a continuing, absolute and unconditional one. and shall remain in full force and effect (notwithstanding. without limitation. the death, incompetency or dissolution of any of the Undersigned or that at any time. or from time to time, all Liabi\ities may have-been paid in full). ThIs Suretyship Agreement Is subject to discontinuance as to any of the Undersigned only upon actual receipt,by the Bank of written notice from such Undersigned, or any person duly authorized and acting on behalf of such Undersigned. of the discontinuance hereof as to such Undersigned; provided, however. that no such notice of discontinuance shall affect or impair any of the agreements and obligations of such Undersigned hereunder with respect to (a} any and all Uabilities existing prior to the time of actual receipt of such notice by the Bank. (b) any and aU Liabilities created or acquired thereafter pursuant to any previous binding commitments made by the Bank. (c) any and all extensions or renewals of any of the foregoing, (d) any and all interest on any of the foregoing, and (e) any and all expenses paid or incurred by the Bank in endeavoring to collect any of the foregoing and in enforcing this Suretyship Agreement against such Undersigned. All obligations of the Undersigned under this Suretyship Agreement shall. notwithstanding any such notice of discontinuance, remain fully in effect until all Uabilities not subject to an effective notice of discontinuance (including any extensions or renewals of any thereof) and all such interest and expenses shall have been paid in full. Any notice of discontinuance by or on behalf of anyone of the 1.Jndersigned shall not affect or impair the obligations hereunder of any other of the Undersigned. At the option of Bank, all Uabilities of Borrower shall become immediately due and payable by the Undersigned, without demand or notice, in the event any of the following shall occur. la) Borrower shall fail to make any payment or meet any other liability when due; (b) Borrower or the Undersigned shall fail to observe or perform any obligation, term, condition or provision of Borrower under any document evidencing or securing the liabilities. this Suretyship Agreement or any other agreement. document, certificate. instrument of security, suretyship or guaranty given by Borrower to Bank; (c) Any representation, warranty or certificate made or furnished by Borr~r 10 Bank, in connection with the Liabilities or any other agreement, document. certificate, instrument of security. suretyship or guaranty given by BOrrower to Bank or in any certificate, financial statement or separate assignment made thereunder shall be materially false; (d) Borrower or any of the Undersigned shall make an assignment for the benefit of creditors; (e) Proceedings in bankruptcy or for reorganization of Borrower or any of the Undersigned or for the readjustment of any of their debts under the Bankruptcy Act, as amended. or in any part thereof, or under any other act or law, whether state or federal. for the relief of debtors now o~ hereafter existing. shall be commenced by or against Borrower or the Undersigned; (1) A receiver or trustee shall be appointed for Borrower or any of the Undersigned or for any substantial part of their assets; or any proceedings are instituted for the dissolution. or the full or partial liquidation, of Borrower or any of the Undersigned; (g) Material adverse changes in the financial condition of the Borrower or any of the Undersigned; (h) A death of Borrower or any of the Undersigned or, if Borrower or the Undersigned is a partnership, the death of any general partner; or (i) Borrower or any of the Undersigned ceases doing business as a going concern. As security for the Liabilities hereunder, the Undersigned hereby grants BaJlk a security interest in the following: NONE Together with a right. without demand or notice of any kind, at any time and from time to time when any amount shall be due and payable by.the Undersigned hereunder and in such order of application as the Bank may elect. to set-off against all monies. deposits or other property of any kind, without limitation, oWned by the Undersigned or in which the Undersigned has a joint or contingent interest and which are in possession of Bank for any reason whatsoever. . The Undersigned further agree that. if at any time, any part of any payment theretofore applied by the Bank to any of the Liabilities is or must be returned by the Bank for any reason whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of the Borrower), such Liabilities shall. for the purposes of this Suretyship Agreement. to the extent that such payment is or must be rescinded or returned. be deemed to have continued in existence. notwithstanding such application by the Bank. and this Suretyship Agreement shall continue to be effective or be reinstated. as the case may be as to such Liabilities. all as though such application by the Bank had not been made. In such an event the Undersigned hereby waives any right of contribution, subrogation or indemnification against the Borrower, for a period of twelve (12) months subsequent to the last payment made or due ,to be made from Borrower to Bank. The Bank may, from time to time. whether before or after any discontinuance of this Suretyship Agreement. at its sole discretion and Vllithout notice to the Undersigned (or any of them), take any or all of the following actions: (a) retain or obtain a security interest in any property to secure any of the liabilities or any obligation hereunder; (b) retain or obtain the primary or secondary obligation of any obligor or obligors in addition to the Undersigned. with respect to any of the Liabilities; (c) extend or renew for one or more periods (whether or not longer than the original period). alter or exchange any of the Liabilities. or release or compromise any obligation of any of the Undersigned hereunder or any obligation of any nature of any other obligor with respect to any of the Liabilities; (d) release its security interest in. or surrender, release or permit any substitution or exchange for. all or any part ~ ~ny property securing any of the Liabilities or any obligation hereunder. or extend or renew for one or more periods (whether or not longer than the anginal period) or release, compromise. alter or exchange any obligations of any nature of any obligor with respect to any such property; and (~) resort to the Undersigned (or any of them) for payment of any of the Liabilities, whether or not the Bank shall have resorted to any property s?cunng any oi the Liabilities for payment of any of the Liabilities. or any obligation hereunder or shall have proceeded against any other of the UnderSigned or any other obligor primarily or secondarily obligated with respect to any of the Uabilities. Any amounts received by the Bank from whatsoever source on account of the Liabilities may be applied by Bank toward the payment of sucn of the Liabilities and in such order of application, as the Bank may from time to time elee.t; and. notwithstanding any payments made by or for the ac:count of t~e Undersigned pursuant to this Suretyship Agreement, the Undersigned shall not be subrogated to any rights of the Bank until such time as .thl~.~uretyshlp Agreement shall have been discontinued as to all of the Undersigned and the Bank shall have received payment of the full amount of all Llabllltles.and of all obligations of the Undersigned hereunder. The Bank shall not be obligated under any theory of law relating to the marshalling of payment received or security interest granted under the terms of this Suretyship Agreement. CE.128-1 7/96 ~~~'~~ ,........" , "-- "I, ~...:._- The B~nk .may, from time to time, whethe, .Aore or after any discontinuance of this Suretyship ~ .:ment, without notice to tho!!: undersigned (or any of ,them), assign or transfer any or all of the Liabilities or any interest therein; and, notwithstanding an,' such assignment or transfer or any subsequent assignment or transfer thereof. such liabilities shall be and remain Liabilities for the purpose of this Suretyship Agreement and each and every immediate and s.uc~~~ive assig~ee or transferee ~f any of the liabilities or of any interest therein shall, to the extent of the interest of such assignee or transferee in the Llsblhtles, be entitled to the benefits of this Suretyship Agreement to the same extent as if such assignee or transferee Vll'ere the Bank; provided, however, that unless the Sa.nk shall oth~rwise consent in writing, the Bank shall have an unimpaired right prior and superior to that of any such assignee or transferee, to enforce thIs Suretyship Agreement for the henent of the Bank, as to those of the liabilities which the Bank has not assigned or transferred. . .No modifi9ation or waiver of any of t~e provisions of this Suretyship Agreement shall be binding upon the Bank except as expressly set forth in a writing duly slgne:d by each of the Und~rslgned and th.e Bank. No. actJon of the Bank permitted hereunder shall in any way affect or impair the rights of the Bank and the obhgatlon of the UnderSigned under thiS Suretyship Agreement. For the purpose of this Suretyship Agreement, Liabilities shall include all obligations of the Borrower to the Bank, notwithstanding any right or power of the Borrower or anyone else to assert any claim or defense as to the invalidity C?r l:'r:'enforceability o.f any such .ob!i~~tion and no su~h claim or defense shall affect or impair the obligations of the Undersigned hereunder. The Uablhty of the UnderSIgned for liabIlitIes of Borrower Incurred on or prior to the date hereof shall not exceed, at any time. the aggregate principal amount of ONE HUNDRED THOUSAND & NO/lOa DOLLARS ($ 1 0 000.0 ). plUS interest as stated in the evidence of indebtedness given by Borrower to Bank and fifteen percent (1 %) attorneys commission; prOVIde that this Suretyship Agreement shall also be applicable to and extend to any and all Liabilities. plus interest and costs as aforesaid, of Borrower arising after the date hereof even if the total of such Liabilities plus the Liabilities outstanding on or prior to the date hereof exceed the aforementioned aggregate principal amount. If no limitation is inserted in this paragraph, there is no limit to the liability of the Undersigned to the Bank. The creation or existence from time to time of Liabilities in excess of any amount to which the right of recovery under this Suretyship Agreement is limited is hereby authorized, without notice to the Undersigned (or any of them), and shall in no way affect or impair the rights of the Bank and the obligation of the Undersigned under this Suretyship Agreement. The Undersigned, jointly and severally, do hereby authorize and empower any prothonotary or clerk or attomey of any court of record of Pennsylvania or elsewhere. to appear for and confess iudgment against any or all of the Undersigned in favor of Bank for the total liability of the Undersigned as set forth herein together with interest thereon, with or without declaration, with costs of suit, release of errors, wi.thout stay of execution or garnishment and with fifteen percent (15%) for collection fees, and waive the right of inquisition, and the benefit of all exemption laws now or hereinafter enacted, and agree to condemnation and the sale of real estate or personal property, or a writ of execution. In the event the Bank acquires any property securing this Suretyship Agreement after a foreclosure sale as to real property or a public auction sale as to personal property, the Undersigned agrees to indemnify and hold the Bank harmless from any loss, costs, or expense Vllhich the Bank may sustain as a result of: (a) selling the real or personal property so acquired for less than the total sums owed by the Borrower to the Bank. provided. however. that any such sale by the Bank is done in a commercially reasonable manner or (b) any action brought against the Bank under g5480r S,544{b) of the United States Bankruptcy Code. as amended. on the ground that the consideration paid by the Bank for the real or personal property was not "fair equivalent value," within the contemplation of 9544(b) of the United States Bankruptcy Code, as amended, or any applicable state fraudulent conveyance act. . The Undersigned waive and release the Bank from any damages which the Undersigned may incur as a result of any intentional or unintentional or negligent action or inaction of the Bank impairing, diminishing, or destroying any of the Undersigned's rights of subrogation which the Undersigned may have upon payment of any of the Borrower's obligations. The Undersigned acknowledges previously having waived. under certain conditions, any such rights. The Undersigned hereby agrees that this Suretyship Agreem~nt shall apply to any obligation which the Bank may incur as the result of any payment to Bank by or on behalf of the Borrower which is determined to be -s preference payment benefiting the undersigned. If a photostatic copy hereof shall have been filed in any of said proceedings, it shall not be necessary to file the original as a warrant of attomey. The foregoing warrant and power to confess judgment shall not be deemed to have been exhausted by any single e)Cercise thereof, whether or not any such mcercise shall be held by any court to be invalid, voidable or void, but may be exercised from time to time, as often as the Bank shall elect, until an sums payable or that may become payable by each of the Undersigned have been paid in full. . A subsequent guaranty or suretyship by the Undersigned or any other guarantor or surety of the Borrower's Liabilities given to the Bank shall not be deemed to be in lieu of or to supersede or terminate this Suretyship Agreement but shall be construed to be additional or supplementary unless otherwise expressly provided therein: and in the event the Undersigned or any other guarantor or surety has given to the Bank a previous guaranty or Suretyship Agreement this Suretyship Agreement shall be construed to be additional or supplementary, and not to be in lieu thereof or to terminate such previous Suretyship Agreement. guaranty or guaranties unless expressly so provided herein. This Suretyship Agreement shall be binding upon the Undersigned, and upon the heirs, legal representatives, successors and assigns of the Undersigned, and to the extent that the Borrower or any of the Undersigned is an entity such as a partnership, limited partnership, limited liability company, corporation or any other similar entity, all references herein to the Borrower and to the Undersigned, respectively, shall be deemed to include any successor or successors, whether immediate or remote, to such entity. If more than one party shall execute this Suretyship Agreement. the term "Undersigned" as used herein shall mean all parties executing this Suretyship Agreement and each of them, and all such parties shall be jointly and severally obligated hereunder. This Suretyship Agreement shall be construed in accordance with and governed by the laws of the Commonwealth of Pennsylvania without giving effect to choice of law rules. Wherever possible each provision of this Suretyship Agreement shall be interpreted in such manner as to be effective and valid under applicable law but if any provision of this Suretyship Agreement shall be prohibited by or invalid under such law, suct) provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Suretyship Agreement. INTEND\NG TO BE LEGAll'{ BOUND HEREBY, the Undersigned have set their respective hands and seals the day and year first above written. WITNESS OR AlTEST: (SURETY) H. Daniel Beiah III and Oneida H. Beigh Title: (SEAL) 'By: '-., By: (SEAL) (SEAL) Title: Ite: i<-~-:;;2..>- 33 CE.12B-2 7/96 , _Co' ,- ~" ,,~""'~',<;Ai'_' ,-=~-;~,,;-,,'--'___ - ~ ",,~ ,_,,," __"_' '-'",,- - "'-' >':1',,; ~- ~,,;. ALLFIRST BANK, SUCCESSOR TO DAUPHIN DEPOSIT BANK AND TRUST COMPANY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Plaintiff NO. v. CONFESSION OF JUDGMENT H. DANIEL BEIGH III and ONEIDA H. BEIGH Defendants CONFESSION OF JUDGMENT By virtue of the authority conferred by the Suretyship Agreement, a copy of which is attached to the Complaint filed in this action, I appear for the Defendants and confess judgment in favor of the Plaintiff and against the Defendants for the sum of $115,000, and costs of suit. ~",:.J' Attorney for Defendants by virtue of the authorization contained in the Suretyship ::---""--, ( ~ ~ ~ ~ ~ .-- > , ~ J__, ~ (J[?~ t-t r'~ ~ ..0 V) \) ~ ~ -v t~S' 6"': ~r2 y h ~8 -f.: .P~; 7"- - ---.( ::2 "' ~ o ~:c {:) -11 .-.., ;''(') ',"';-:1 -.--j -",-- --', ;-,)'7.;:: :-;d;; <~ t~) :--~;:::u ~;:( ) brn --< 5:; =< c,) u - ~ .. N (;:J e