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HomeMy WebLinkAbout07-0671 HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. No. 07 - t:.1/ e/u~L I~ JOHN G. HOPKINS, IV, Defendant CONFESSION OF JUDGMENT Pursuant to the authority contained in the Warrant of Attorney, a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against Defendant as follows: Principal Sum Due - Interest to 1/24/2007 - Attorney's Commission (10% of unpaid principal and interest) - Total - $ 17,427.30 1,126.93 1,855.42 $ 20,409.65 Plus interest which continues to accrue at the contract rate ($4.72 per diem) after January 24, 2007, and after entry of judgment and until paid in full, reasonable attorney's fees and costs of suit. ~~ By: AR 1.0. #55774 Attorney for Defendant , . . . HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P,O, Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. No. JOHN G. HOPKINS, IV, Defendant COMPLAINT CONFESSION OF JUDGMENT Plaintiff files this Complaint pursuant to Pa. R.C.P. No. 2951 (b) for judgment by confession and avers the following: 1. The Plaintiff is Manufacturers and Traders Trust Company, successor to Pennsylvania National Bank and Trust Company, with an office located at M&T Bank, Special Assets, 213 Market Street, Troup Building - 4th Floor, Harrisburg, Pennsylvania 17101-2141 ("M&T Bank"). 2, The Defendant is John G. Hopkins, IV, an adult individual, last known to reside at 12 Chelton Circle, Camp Hill, Cumberland County, Pennsylvania 17011. , . 3. On April 28, 1995, Plaintiff loaned Mid Atlantic Insurance Consultants, Ltd. the sum of Twenty Thousand Dollars ($20,000.00) pursuant to the terms of a Promissory Note, the terms of which were unconditionally guaranteed pursuant to the terms of a Commercial Guaranty (the "Guaranty") which was duly executed by Defendant, a true and correct copy of which is attached hereto as Exhibit "A". 4. The Defendant is in default under the terms of the Guaranty having failed to meet the demand for payment in full issued November 1, 2006, to Mid Atlantic Insurance Consultants, Ltd. and the Guarantor. 5, The Guaranty has not been assigned. 6. Judgment has not been entered on the Guaranty in any jurisdiction. 7. As a consequence of the foregoing and pursuant to the Warrant of Attorney in the Guaranty, Defendant is liable to Plaintiff as follows: Principal Sum Due - Interest to 1/24/2007 - Attorney's Commission (10% of unpaid principal and interest) - Total - $ 17,427.30 1,126.93 1.855.42 $ 20,409.65 Plus interest which continues to accrue at the contract rate ($4.72 per diem) after January 24, 2007, and after entry of judgment and until paid in full, reasonable attorney's fees and costs of suit. 8, Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 9. Attached hereto and incorporated herein as Exhibit "8" is the Notice to Defendant required by 42 Pa.C.S.A. 92737.1. - 2 - WHEREFORE, Plaintiff demands judgment in the sum of: Principal Sum Due - Interest to 1/24/2007 - Attorney's Commission (10% of unpaid principal and interest) - Total - $ 17,427.30 1,126.93 1.855.42 $ 20,409.65 Plus interest which continues to accrue at the contract rate ($4.72 per diem) after January 24, 2007, and after entry of judgment and until paid in full, reasonable attorney's fees and costs of suit, as authorized by the Warrant of Attorney appearing in the Guaranty. By: MA C A. 1.0. #55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 Attorney for Plaintiff - 3 - . . " AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA: : ss. COUNTY OF DAUPHIN Walter Leader, Banking Officer, of Manufacturers and Traders Trust Company, being duly sworn according to law, deposes and says that he has authority to sign this Affidavit on behalf of Manufacturers and Traders Trust Company and that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, Commercial information and belief; and that the copy of the Guaranty , Exhibit "A", attached to the Complaint, is a true and correct copy of the original which is held in the files of the Plaintiff and which was executed and delivered by the Defendant to Plaintiff. MANUFACTURERS AND TRADERS TRUST COMPANY BY:~~ Walter Leader Banking Officer Sworn and subscribed to before me this : ~~day- 0 ,200l. : COMMONWEALTH OF PENNSYLVANIA Notarial Seal . Edie I. UngIe, Notary Public City Of~, Lebanon County My <Am1TllSSiOn Expires Oct. 11, 2008 Member, Pennsylvania Association Of Notaries . . " NOTICE TO THE DEBTOR/DEFENDANT AS REQUIRED BY 42 Pa.C.S.A. ~2756 To: Mr. John G. Hopkins, IV 12 Chelton Circle Camp Hill, PA 17011 Attached hereto you will find a copy of Pennsylvania Rule of Civil Procedure 2959 which provides instructions regarding the procedure to follow to request the Court strike or open a confessed judgment. You should be further advised that any party to a confessed judgment which has been incorrectly identified is entitled to costs and reasonable attorney's fees as determined by the Court. MARC A. HESS Attorney for Manufacturers and Traders Trust Company COMMERCIAL GUARANTY Borrower: MID ATLANTIC INSURANCE CONSUlTANTS, L TO, a30 SIR THOMAS COURT HARRISBURG, PA 17109 lender: PENNSYLVANIA NATIONAL BANK AND TRUST COMPANY KEYSTONE PLAZA LOAN CENTER FRONT & MARKET STREETS HARRISBURG, PA 17105 Guarantor: JOHN G. HOPKINS IV 200 FINEVIEW ROAD CAMP HILL, PA 17011 AMOUNT OF GUARANTY. This Is a guaranty of payment of the Note, Including without limitation the principal Note amount of Twenty Thousand & 00/100 Dollars ($20,000.00). GUARANTY, For good -and valuable consideration, JOHN G. HOPKINS IV ("Guarantor") absolutely and UncondllJonally guarantees and promises to pay to PENNSYLVANIA NATIONAL BANK A.'lD TRUST COMPANY ("Lender") 0; Its order, on demand, In legai tender of the United States of America, the Indebtedness (as that term Is defined below) at MID ATLANTIC INSURANCE CONSULTANTS, LTD. ("Borrower") to Lender on the terms and condlllons set forth In this Guaranty. DEFINITIONS. The following words shall have the following meanings when used in this Guaranty: Borrower. The word "Borrower" means MID ATI.ANTlC INSURANCE CONSULTANTS. LID.. Guarantor. The word "Guarantor" means JOHN G, HOPKINS IV, Guaranty. The word "Guaranty" means this Guaranty made by Guarantor for the benefit of Lender dated April 28, 1995, Indebtedness. The word "Indebtedness" means the Note, including (a) all principal, (b) all interest, (c) all late charges. (d) all loan fees and loan charges, and (e) all collection costs and expenses relating to the Note or to any collateral tor the Note, Collection costs and expenses include wilhout limitation all of Lender"s attorneys' tees and Lender's legal expenses, whether or not suit is instituted, and attorneys' tees and legal expenses for bankruptcy proceedings Oncluding efforts to modify or vacate any automatic stay or Injunction), appeals, and any anticipated post-judgment collection services, Lender. The word "lender" means PENNSYLVANIA NATIONAL BANK AND TRUST COMPANY, its successors and assigns. Note. The word "Note" means the promissory note or credit agreement dated April 28, 1995, In the original principal amount Of $20,000.00 from Borrower to Lender, togelher with all renewals of, extensions of, modifications ot, refinancings of, consolidations of, and substitutions for the ' promissory note or agreement. Nollce to Guarantor: The Note evidences a revolving line of credit from Lender 10 Borrower. Related Documents,. The words "Related Documents" mean and include without limitation all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, morlgages, deeds of trust, and all other instruments, agreements and ,documents, whether now or hereafter existing, executed in connection with the Indebtedness, MAXIMUM LIABILITY. The maximum liability of Guarantor under this Guaranty shall not exceed at anyone time the amount of the Indebtedness described above, plus all costs and expenses of (a) enforcement of this Guaranty and (b) collecllon and Sale of any collateral securing this Guaranty. The above limitation on liability is not a restriction on the amount of the Indebtedness of Borrower to Lender either in the aggregate or at anyone time, If Lender presentiy holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, the rights of Lender under all guaranties shall be cumulative, This Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties, The liability of Guarantor will be the aggregate liability of Guarantor under the terms of this Guaranty and any such other unterminated guaranties, NATURE OF GUARANTY. Guarantor intends to guarantee at all limes the performance and prompt payment when due, whether at maturity or eariier by reason of acceleration or otherwise, of ail Indebtedness within the limits set forth in the preceding section of this Guaranty, This Guaranty covers a revolving line of credit and QUarantor understands and agrees that thts guarantee shall be open and continuous unlll the line of credit Is terminated and Ihe Indebtedness Is paid In full, as provided below. DURA nON OF GUARANTY, This Guaranty wiiltake effect when received by Lender wilhoutthe necessity of any acceptance by Lender, or any notice to Guarantor or'.'o, Borrower, and will continue in full force until all Indebtedness shail have been fully and finally paid and satisfied and ail other obligations of Guarantor under this Guaranty shall have been performed in full, Release of any other guarantor or termination ot any other guaranty at the IndebtednElss shail not affect the liability of Guarantor under this Guaranty, A revocation received by Lender from anyone or more Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty, This Guaranty covers a revolving line 01 credit and II Is specifically anticipated that fluctuations will occur In the aggregate amount of Indebtedness owing from Borrower to Lender. Grantor specifically acknowledges and agrees that fluctuations In the amount of Indebtedness, even to zero dollars ($ 0.00), shall not constilule a termination of thls Guaranty, Guarantor's liability under this Guaranty shall terminate oniy upon (a) termination In writing by Borrower and Lender of the line of credit, (b) payment of the Indebtedness In full In legal tender, and (c) payment In full In legal tender of all other obligations of Guarantor under this Guaranty. GUARANTOR'S AUTHORIZATiON TO LENDER. Guarantor authorizes Lender, without notice or demand and without leSsening Guarantor's liability under this Guaranty, from time to lime: (a) to make one or more addlllonal secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower, or otherwise to extend additional credit to Borrower; (b) to alter, compromise, renew, extend, accelerate, or otherwise change one or more times the ttme for payment or other terms of the Indebtedness or any part of the Indebtedness, Including Increases and decreases of the rate of Interest on the Indebtedness; extensions may be repeated and may be for longer than the original loan term; (c) to take and hold security for the payment of this Guaranty or the Indebtedness, and exchange, enforce, watve, fail or decide not to perfect, and release any such security, with or without the substitution of new collateral; (d) to release, substitute, agree not to sue, or dea~ with anyone or more of Borrower's sureties, endorsers, or other guarantors on any terms or In any manner Lender may choose; (e) to determine how, when and what appllcallon of payments and credits shall be made on the Indebtedness; (I) to apply such security and direct the order or manner of sale thereof, InclUding wlthoullimltation, any nonjudtclal sale permitted by the terms of the controlling security agreement or deed of trust, as Lender In Its discretion may determine; (g) to sell, .transfer, assign, or grant participations In all or any part of the Indebtedness; and (h) to assign or transfer this Guaranty In whole or In part, GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (a) no representalions or agreements of any kind have been made to Guarantor which would limit or qualify in any way the terms of this Guaranty; (b) this Guaranty is executed at Borrower's request and not et the request of Lender; (c) Guarantor has no! and will not, without the prior written consent of Lender, seil, lease, assign, encumber, hypothecate. transfer, or otherwise dispose of ail or substantially all of Guarantor's assels, or any Interest therein; (d) Lender has made no representation to Guarantor as to the creditworthiness of Borrower; (e) upon Lender's request, Guarantor will provide to Lender financial and credil information in form acceptable to Lender, and ail such financiai information provided to Lender is Irue and correct in all material respects and fairly presents the financial condillon of Guarantor as of the dates thereof, and no material adverse change has occurred in the financial condilion of Guarantor since the date of the financial statements; and (I) Guarantor has established adequate means of obtaining from Borrower on a continuing basis information regarding Borrower"s financial condition, Guarantor agrees to keep adequately informed from such means of any tacts, events, or circumstances which might In any way affect Guarantor's risks under this Guaranty, and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information or documents acquired by Lender in the course of its relationship with Borrower, GUARANTOR'S WAIVERS, Except as prohibited by applicable law, Guarantor waives any right to require Lender (a) to continue lending money or to extend other credit to Borrower; (b) to make any presentment, protest, demand, or nolice of any kind, including nollce of any nonpaymenl of the Indebted'ness or of any nonpayment related to any collateral, or nolice of any action or nonaction on the part of Borrower, Lender, any surety, endorser, or other guarantor In connection with the Indebtedness or in connection with Ihe creation of new or addilionalloans or obligations; (c) to resort for payment or to proceed directly or al once against any person, including Borrower or any other guarantor; (d) to proceed directly against or exhaust any collaleral held by Lender from Borrower, any other guarantor, or any other person; (e) to give notice of the terms, time, and place of any pUblic or private sale of personal properly security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial Code; (I) 10 pursue any other remedy within Lender's power; or (g) to commit any act or omission of any kind, or at any time, with respect to any matter whatsoever. If now or hereafter (a) Borrower shall be or become insolvent, and (b) the Indebtedness shall not at all times until paid be tully secured by collateral pledged by Borrower, Guarantor hereby forever waives and relinquishes in favor of Lender and Borrower, and their respective successors, any claim or right to payment Guarantor may now have or hereafter have or acquire against Borrower, by subrogation or otherwise, so that at no time shall Guarantor be or become a "creditor" of Borrower within the meaning of 11 U,S,C, section 547(b), or any successor provision of the Federal bankruptcy laws, Loan No __..u.._.._....-ll_ __r-I.Ill"""lJ'SI . '~ontinued) .r~yt:: ~.". Guaraf\!r;r also waives any and all rig his or defenses arising by'oo$on of (a) any "one action" or "anti-'deficiency" law or any other law which may prevent Llinder Irom bringing any aelion, including a claim for deficiency, against Guarantor, belore or after Lender's com mencemenl or compte lion of any foreclosure action, either judicially or by exercise of a power 01 sale; (b) any election 01 remedies by Lender which destroys or otherwise adversety affects Guarantor's sUbrogation rights or Guarantor's rights to proceed against Borrower lor reimbursemenl, including without limitation, any loss of rig his Guarantor may suffer by reason 01 any law limiling, qualifying, or discharging the Indebtedness; (c) any disability or other defense of Borrower, of any other guarantor, or of any other person, or by reason of lhe cessation of Borrower's liability Irom any cause whatsoever, olher lhan payment in full in legal tender, of the Indebtedness; (d) any right 10 claim discharge of the Indebledness on the basis of unjustified impairment of any collateral lor the Indebtedness; (e) any statute of limitations, il at any time any action or suit brought by Lender against Guarantor is commenced there is outslanding Indebtedness 01 Borrower to Lender which is. not barred by any applicable statute of limitations; or (1) any delenses given to guarantors at law or in equity. other than actual payment and performance of the Indebtedness, If payment is made by Borrower, whether voluntarily or otherwise, or by any third party, on the I ndebtedness and thereafter Lender is forced to remit Ihe amount 01 that payment to Borrower's trustee in bankruptcy or to any similar person under any lederal or stale bankruptcy law or law lor the relief of debtors, the Indebtedness shall be considered unpaid for the purpose of enforcement of Ihis Guaranty, Guarantor further waives and agrees not to asserl or claim at any time any deductions to the amount guaranteed under lhis Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or similar right, whether such claim, demand or right may be asserted by the Borrower, the Guarantor, or both, GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS, Guarantor warrants and agrees that each 01 the waivers sellorlh above is made with Guarantor's full knowtedge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to public policy or law, If any such waiver is determined to be contrary to any applicable law or pUblic pOlicy, such waiver shall be effective only to the extent permitted by law or public policy, LENDER'S RIGHT OF SETOFF. In addition to all liens upon and righls 01 setoff against the moneys, securities or other property of Guarantor given to Lender by law, Lender shall have, with respeel to Guarantor's obligalions to Lender under this Guaranty and to the extent permitted by law, a contractual possessory security interest in and a right of setoff against, and Guarantor hereby assigns, conveys, delivers, pledges, and transfers 10 Lender all of Guarantor's right, litle and inlerestln and to, aU deposits, moneys, seculities and other property of Guarantor now or hereafter In the possession of or on deposit with Lender, whether held in a general or special account or deposit, whether held jOintly with someone else, or whether heid lor safekeeping or otherwise, excluding however all IRA, Keogh, and trust accounts, Every such securtty interest and right of setoff may be exercised withoul demand upon or notice to Guarantor. No security interest or right of setoff shali be deemed to have been waived by any acl or conduct on the part of Lender or by any neglecllo exercise such right of setoff or to enforce such security interest or by any delay in so dOing. Every right of setoff and security interest shall continue in fuli force and effee!. until such right 01 setoff or security interest is specificaliy waived or released by an instrument in writing executed by Lender, SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness of Borrower to Lender, whether now existing or hereafter created, shali be prior to any claim that Guarantor may now have or hereafter acquire againsl Borrower, whether or not Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any claim thaI Lender may now or hereafter have against Borrower, In the event of insolvency and consequent liquidatton of the assels of Borrower, through bankruptcy, by an assignment lor the benefil of creditors, by voluntary .liquidalion, or otherwise, the assels of Borrower applicable 10 the payment of the claims of bolh Lender and Guaranlor shali be paid to Lender and shali be first applied by Lender to the Indebtedness of Borrower to Lender. Guarantor does hereby assign to Lender ali claims which it may have or acquire against Borrower or against any assignee or trustee in bankruptcy 01 Borrower; provided however, that such assignment shall be effective only lor the purpose of assuring to Lender full payment in legal lender of the Indebtedness, If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower to Guarantor shall t?e marked with a legend thatlhe same are subject to this Guaranty and shali be delivered to Lender. Guarantor agrees, and Lender hereby is authorized, in the name of Guarantor, from time to time 10 execute and file financing statements and continuation statements and to execute such other documents and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty, .. MISCELLANEOUS PROVISIONS. The' following miscellaneous provisions are a part of this Guaranty: Amendments, This Guaranty, together with any Related Documents, constllutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No aiteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Applicable Law. This Guaranty has been delivered 10 Lender and accepted by Lender in the Commonweallh of Pennsylvania, If there is a lawsuit, Guarantor agrees upon Lender's request 10 submit to the jurisdiction of the courls of DAUPHiN County, Commonwealth of Pennsylvania. This Guaranty shali be governed by and construed in accordance with the laws of the Commonwealth of Pennsyivania, Attorneys' Fees; Expenses, Guarantor agrees to pay upon demand all of Lender's costs and expenses, inciuding atiorneys' lees and Lender's legal expenses, incurred In connection with the enforcement of this Guaranty, Lender may pay someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' lees and legal expenses whether or not there is' a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (and Including efforts to modify or vacate any automatic stay or Injunction), appeals, and any anticipated post-judgment coliection services, Guarantor also shali pay all courl costs and such additional fees as may be diree!ed by the court, Notices. All notices required to be given by either party to the other under this Guaranty shali be in writing and shali be effective when actually delivered or when deposited with a nationaily recognized overnight courier, or when deposited in the United States mail, first class postage prepaid, addressed to the party to whom the notice is to be given at the address shown above or to such other addresses as either party may designate to the other in writing, If there Is more than one Guarantor, notice to any Guarantor will constitute notice to all Guarantors, For nolice purposes, Guarantor agrees to keep Lender inlormed at ail times of Guaranto~s current address. Interpretation. In ali cases where there is more than one. Borrower or Guarentor, then all words used in Ihis Guaranty in Ihe singular shali be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower named In this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and "Guarantor" respectively shall mean all and anyone or more of them, The words "Guarantor," "Borrower," and "Lender" include the heirs, successors, assigns, and translerees of each of them, Caption headings in this Guaranty are lor convenience purposes onty and are not to be used to Interpret or define the provisions of Ihis Guaranty, If a court of oompetent jurisdiction finds any provision of this Guaranty to be invalid or unenlorceable as to any person or circumstance, such finding shail not render thai provision Invalid or unenforceable. as to any other persons or circumstances, and ali provisions of this Guaranty in ail other respects shali remain valid and enforceable, If anyone or more of Borrower or Guarantor are corporations or partnerships, it is not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors, partners, or agents ae!ing or purporting to act on their behalf, and any Indebtedness made or created in reliance upon the professed exercise of such powers shail be guaranteed under this Guaranty, Waiver. Lender shall not be deemed to have waived any righls under this Guaranty unless such waiver is given in writing and signed by Lender, No delay or omission on the part 01 Lender in exercising any right shail operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Guaranty shall not prejudice or constitute a waiver of Lender's right otherwise to demand strie! compliance with that provision or any other provision of this Guaranty, No prior waiver by Lender, nor any course of dealing between Lender and Guarantor, shall constitute a waiver of any of Lender's rights or of any of Guarantor's obligations as to any future transactions, Whenever the consent of Lender is required u}1der this Guaranty, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in ail cases such consent may be granted or withheld in the sole discretion of Lender, CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF Ar-N COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR GUARANTOR AFTER A DEFAULT UNDER THIS GUARANTY, AND WITH OR WITHOUT COMPlAJNT FILED, AS OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRiNCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSiON OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN N<Y EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($SOO) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR A COPY OF THiS GUARANTY VERIFiED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT, THE AUTHORITY GRANTED IN THIS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FUll OF ALL AMOUNTS DUE UNDER THIS GUARANTY, GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT GUARANTOR HAS BEEN REPRESENTED BY LEGAL COUNSEL, THE LIEN ARISING FROM ANY JUDGMENT CONFESSED OR ENTERED PURSUANT TO THE FOREGOING AUTHORITY SHALL NOT EXTEND TO ANY OF GUARANTOR'S RESIDENTIAL REAL PROPERTY AS THAT TERM IS DEFINED IN THE PENNSYLVANIA ACT OF JANUARY 30, 1974 (PA LAWS 13, NO, 6), REFERRED TO AS THE LOAN INTEREST AND PROTECTION LAW, AS AMENDED, AND THE HOLDER OF ANY JUDGMENT CONFESSED OR ENTERED PURSUANT TO THE FORGOING AUTHORiTY SHALL NOT, IN ENFORCEMENT OF ANY SUCH JUDGMENT, EXECUTE, LEW OR OTHERWISE PROCEED AGAINST ANY SUCH RESIDENTIAL REAL PROPERTY; M":28-1995 " Loali No COMMERCIAL GUARANTY (Continued) Page 3 PROVIDED, f-jOWEVER, THAT THE LIEN OF SUCH JUDGMENT SHALL EXTEND TO'SUCH RESIDENTIAL REAL PROPERTY AND THAT THE HOlDER THEREOF SHALL BE PERMITTED TO EXECUTE, lEW OR PROCEED AGAINST SUCH RESIDENTIAL REAL PROPERTY FROM AND AFTER THE ENTRY OF A JUDGMENT AS CONTEMPLATED BY SECTION 407 OF SUCH LOAN INTEREST AND PROTECTION LAW AND RULES 2981, TO 2986 OF THE PENNSYLVANIA RULES OF CIVIL PROCEDURE, OR SUCCESSOR OR SIMIlAR STATUTES AND RULES, NO LIMITATION OF LIEN OR Am EXECUTION, LEVY OR OTHER ENFORCEMENT CONTAINED IN THE IMMEDIATELY PRECEDING SENTENCE SHALL APPLY WITH RESPECT TO Am JUDGMENT OBTAINED OTHER THAN BY THE FOREGOING AUTHORITY TO CONFESS OR ENTER JUDGMENT. EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS 'TERMS. IN ADD/TION,'EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY." NO FORMAl ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED APRIL 28,1995. ~UARANT ~ <~~,A~~@[?" ~",.;{i;i,,;;gJiirff':,;; JOHN ,HOPKINS IV Igne ,ac'j?oWled!ll' a~d del}Y'1ed i~ the presence of: X c;, l~a_ Witness X Witness INDIVIDUAL ACKNOWLEDGMENT "A~~ o/cjL~~ COUNTY OF ) )SS l On this day before me, the undersigned Notary Public, personally appeared JOHN G. HOPKINS IV, to me known to be the individual described in and who execuled the Commercial Guaranty, and acknowledged that he or she signed the Guaranty as his or her free and voluntary act and deed, for the uses and purposes therein mentioned" ~ ' C ../ ~.~, .., """ ,....." '" -,) I( ,~.. _~ ~. ,,~. By ,~ Residing al ~ , '/:'t/h,t?( ~ . My commission expires Diane M. Yanich, Not5KJ Hanisburg, Dauphin My Comrnissloil Expires March ,'997 Member, Pennsylvania..\sSOCialion of Notaries . . .' RULES OF CIVIL PROCEDURE - CONFESSION OF JUDGMENT Rule 2959. Striking Off or Opening Judgment; Pleadings; Procedure (a)(1) Relief from a judgment by confession shall be sought by petition, Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition, The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment. (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958,3 or Rule 2973,3, (3) If written notice is served upon the petitioner pursuant to Rule 2956,1 (c)(2) or Rule 2973,1 (c), the petition shall be filed within thirty days after such service, Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied, (b) If the Petition states prima facie grounds for relief and the court shall issue a rule to show cause and may grant a stay of proceedings, After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule, The return day of the rule shall be fixed by the court by local rule or special order, (c) A party waives all defenses and objections which are not included in the petition or answer, (d) The petition and the rule to sow cause and the answer shall be served as provided in Rule 440, (e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence, The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment. (f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending, (g) (1) A judgment shall not be stricken or opened because of a creditors' failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a jUdgment or regarding any rights available to an incorrectly identified debtor. (2) Subdivision (g)(1) shall apply to (1) judgments entered prior to the effective date of subdivision (g) 1 which have not been stricken or opened as of the effective date and (2) judgments entered on or after the effective date, Adopted June 27,1969, effective Jan, 1, 1970, Amended Oct, 4,1973, effective Dec, 1, 1973; Nov, 14, 1978, effective Dec, 2, 1978; Dec 14, 1979, effective Feb, 1, 1980; June 20, 1985, effective Jan, 1, 1986; April 1 , 1996, effective July 1, 1996; Sept. 28, 2004, imd, effective, Explanatory Comment -1979 Amendment to Rule 2959(a), The Act of March 27, 1945, P.L 83, as amended, 12 P,S, SS913, 914 provided that if a confessed judgment is transferred to another county or if a writ of execution upon it is direct4ed to another county, the defendant has the option to petition to open either in the county where the judgment was originally entered or in the county to which it was transferred or to which the execution was directed, This Act is repealed by JARA, Subdivision (a) of Rule 2950 has been amended to continue the procedure, The scope of the repealed Act is enlarged by granting optional venue in the case of a petition to strike the jUdgment as well as petitions to open, This consisted with subdivision (a) of Rule 2959 which requires all grounds for relief, whether to open or to strike, to be raised at one time, To prevent bifurcation of the proceedings, the optional venue must be extended to both forms of relief, A petition to strike must assert defects appearing on the record, If the judgment debtor should seek to strike the judgment in an outside county, examination of the record of the original confession may be essential. For this purpose, the judgment debtor can, under the authority of Rule 3002(c), file in the outside county a certified copy of all or any part of the record, testimony or exhibits in the original action, New Rule 2959(f), An order of court opening a judgment does not impair the lien of the judgment or of any execution issued on it, although the court may stay the execution pending final disposition of the proceeding, 7 Stand,Pa,Prac, 172, 174 SS 138, 142, To the contrary an order of court striking a judgment annuls the lien of the judgment or of any execution issued on it. 7 Stand,Pa,Prac, 244 SS 223, 224, However, the mere filing of a petition to open or strike a judgment does not affect the lien of the judgment or of any execution, subject, of course, to the power of the court to stay execution pending decision on the petition, Subdivision (f) has been added to Rule 2959 to restate this principal. EXHIBIT "B" ) Subd, (g)added by Order of Sept. 28, 2004, imd. effective. . . . . Section 1722(b) of the Judicial Code authorizes the Supreme Court to promulgate general rules on the subject of liens and their extent where not already governed by Act of Assembly, In the absence of such general rules, present practice shall continue, The rarely used Act of July 9, 1897, P,L. 237, 12 P,S, 9911, created a special remedy under which a creditor of a judgment debtor might attack a judgment confessed by that debtor in favor of another creditor on a sowing of invalidity or fraud, and the filing of a bond to protect the judgment plaintiff, The Act preserved the lien of any levy which had been made pending termination of the proceedings, The Act was suspended in 1969 by Rule 2975(3) [rescinded] with respect to confessed judgments, except insofar as it preserved the lien, and it has been repealed by JARA, Explanatory Comment - 1996 The rules of civil procedure governing confession of judgment for money have been revised in two major respects: the abolition of confession of judgment in a consumer credit transaction and the imposition of a requirement of notice prior to or with execution upon a confessed judgment. * /I, Notice The provisions for notice are intended to aid the bench and bar in complying with Jordan v, Fox, Rothschild, O'Brien & Frankel, 20 F,3d 1250 (C.A3 1994), The significance of the opinion was stated by Judge R Stanton Wettick, Jr. in S & T Bank v, Coyne, No, GO 94-12141 (Allegheny County, August 11, 1994): The Jordan opinion is significant only because the judgment creditor and its attorneys are now also subject to a 9 1983 claim by a judgment debtor who did not waive its constitutional rights to notice and a hearing, New rules have been promulgated to provide for notice to be served upon the defendant in most cases prior to or during execution on a judgment entered by confession, There are three notices but only one need be given in a particular case, Under new rule 2959(a)(3), a defendant must file a petition within thirty days of service of the notice to obtain relief from the judgment or to prevent execution, After thirty days, the defendant is barred from relief unless there are "compelling reasons for the delay". The intent of these rules is to limit the necessity for hearings on issues of due process and waiver by providing the defendant with a pre-deprivation notice and opportunity for hearing on the merits, However, new Rule 2959(a)(2) specifies three instances when the issue of the voluntary, intelligent and knowing waiver of due process rights may be raised, The first is in support of a request for a stay when the court ha already denied a prior request for a stay despite timely filing of that request and "the presentation of prima facie evidence of a defense", The second is when personal property has been levied upon or attached without prior notice and hearing under new Rule 2958,2, The third is when a defendant in possession of leased residential real property has been evicted without prior notice and hearing under new Rule 2973,3, In all other instances, the issues upon a petition for relief from the judgment will be the merits and not the waiver of due process rights, - 2 - 0 -.lQ... t 7:::.J -- r--~ 0 1 ...0 ~~ c:::",) .::.:.:~ -n tt . --' ~ ---~ \ ,.' -. -"1 r~."l 0:; ""'" t ~ ....... ,'...) \:) ~ -v ,n -r-, ~ -- p: ...,.-." ~ -- ;~ (,) (U ~ ~ r ~ ~ _1 - W- ..r:- ~ , r OFFICE OF THE PROTHONOTARY COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TO: Mr. John G. Hopkins, IV 12 Chelton Circle Camp Hill, PA 17011 MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. No. O^f - e;t.>,LY~ JOHN G. HOPKINS, IV, Defendant NOTICE Pursuant to Pa.R.C.P. Rule 236 please be advised that judgment by confession in the above proceeding was entered against you on ~ ek ^ , 2007, in the - amount of: Principal Sum Due - Interest to 1/24/2007 - Attorney's Commission (10% of unpaid principal and interest) - T ota I - $ 17,427.30 1,126.93 1,855.42 $ 20,409,65 Plus interest which continues to accrue at the contract rate ($4.72 per diem) after January 24, 2007, and after entry of judgment and until paid in full, reasonable attorney's fees and costs of suit. Copies of all documents filed are attached hereto. ~~-9i Pr honotary HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P,O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. No.6'1 -, "l( (];CJL~~ JOHN G. HOPKINS, IV, Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY OF SAID COUNTY: Sir, please enter the appearance of Marc A. Hess, of the law firm of Henry & Beaver LLP, whose address is 937 Willow Street, P.O. Box 1140, Lebanon, Pennsylvania 17042-1140 as attorney for Manufacturers and Traders Trust Company, the Plaintiff in the above-captioned case. Dated:VbiJ.L~ I, 0007 n ~ f'-..) c::.;, ;'",-;:::-::;.1 -..J ...., r-rj c::.: () 11 ::-;! I N -~ c-,.) :-.~1n-l ~J ~~ HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. No. 07-671 Civil Term JOHN G. HOPKINS, IV, Defendant AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA: : ss. COUNTY OF LEBANON I, Lisa I. Fox, of the law firm of Henry & Beaver LLP, depose and state that I forwarded a certified true and correct copy of the attached Notice Under Rule 2958.1 of Judgment and Execution Thereon - Notice of Defendant's Rights by First Class United States Mail, Certified, Return Receipt Requested, on February 8,2007 to Defendant, John G. Hopkins, IV, at 12 Chelton Circle, Camp Hill, Pennsylvania 17011. Said Notice was received by Defendant on February 9,2007. .. Attached hereto and made a part hereof is the United States Postal Service Domestic Return Receipt and Receipt for Certified Mail. , diP ~~ LI .F S and subscribed to before me this 5th da of February, .{,;Q~'1S'NWItAL.TH OF P NSYLV I NOTARIAL SEAL I fJA if;ICIA L, YOUNG, Notary Public .. ,. elly !:'If blb800n, Lebanon County ~j1\1.' \~9ffHtl!"'IlIl'll\ El(f:llres December 17,2009 ..'_c_.n,,_, ;.......: ",,',.::-": '"'-"'1'"'"..""",,.,.,.,. - 2 - 7X7()D0 () 10 0 CO:)::; 7c-l (e Lf dro 7 \J/t;lC~J ~./~/u7 HENRY & BEAVER LLP By: Marc A Hess Identification No, 55774 937 Willow Street P.O, Box 1140 Lebanon, P A 17042-1140 (717) 274-3644 MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. No. 07-671 Civil Term JOHN G, HOPKINS, IV, Defendant NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS To: Mr. John G. Hopkins, IV 12 Chelton Circle Camp Hill, PA 17011 A judgment in the amount of: Principal Sum Due - Interest to 1/24/2007 - Attorney's Commission (10% of unpaid principal and interest) - Total - $ 17,427.30 1,126.93 1,855.42 $ 20,409.65 Plus interest which continues to accrue at the contract rate ($4.72 per diem) after January 24, 2007, and after entry of judgment and until paid in full, reasonable attorney's fees and costs of suit, has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The Sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYER REFERRAL SERVICES c/o Court Administrator Cumberland County Courthouse th One Courthouse Square, 4 Floor Carlisle, PA 17013 (717) 240-6200 J HEN )(-&.BEAVER L-lP i ,1 /-;+'+-L~ / /f t,... 'L. ..c."" ::--.. ~ ~I ..;.2'......1 ~~. -~'-i... i\ ..I..-.~". ~ /' ji I)' -..J ";>:-" 1___'-' By: ~~1../ I~_~ .fv1ARC Ji., HESS . 1.0. #55774 Attorney for Plaintiff - 2 - f'- ..D ru 0- c M 0- f'- U.S. Postal Service,,, CERTIFIED MAIL" RECEIPl (Domestic Mail Only; No Insurance Coverage Provided) ..D C C f'- U'l C C C Certified Fee Return Receipt Fee - (Endorsement Required) C Restricted Delivery Fee C (Endorsement Required) M C $0.00 $0\-.64 Total Postage & Fees $ ....ltems 1, 2, and 3. Also complete 14 . ~cted Delivery Is desired. It )'OW ns!lMt and address on the reverse .hit .. can return the Cfird to you. ' ICh thI8 card to the back of. the rnallplece, n .. front If spac::e permits. ;Ie Addressed to: John G. Hopski~s IV Chelton Circle 1P till PA 17011 / o. Is dellve1y addl'8llS dlfflIrent from Item 11 If YES. enter delIVery address beloW: 3. ServIce ~ XII CertIfIed Mall C $xp.. MaD [J Reglst8red [J Ret1fm ReceIpt for Men::h..... [] II18tI'8d Mall [] C.Olo. 4. Restrtct8d DelIvery? (&b Fee) [] Yes ArtklIe Nwnber ('flwrI*r twn SIlt\Ifce IBbeI) Form 3811, February 2004 7006 D~OO OB05 7910. 9267 DomestIc RetiJI"ri Rec8lpt w..M-02-M-l540 i. U1 ~. :.<C ~~ ~ 1'-.3 ::..--:> c,:> -..J -., rrJ OJ N N -0 == o -n :i! m:D -oF;; ';JY 0(- ~.~,) :'~f::;1 , ".1 ",. , rJ.-,;:,,- .::J -< ..b., .. (:'.r\ HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW vs. No. 07-671 Civil Term JOHN G. HOPKINS, IV, Defendant PRAECIPE TO THE PROTHONOTARY: - SETTLE & DISCONTINUE x - SATISFY the confessed judgment entered to the above term and action number. DATE: April q ,2007 By: ~ 0 c:::> -n --l J.~ -0 ?::l ?::: ~.. ..- - o ('.,)