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Home My WebLink About03-03221N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DWISION - LAW MANUFACTURERS AND TRADERS TRUST COMPANY Plaintiff, VS. DAWN CONVERSIONS, INC. Defendant. CIVIL ACTION NOTICE YOU HAVE BEEN SUED 1N COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAll, TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIMS OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. 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. LAWYER REFERRAL SERVICE 2 LIBERTY AVENUE CARLISLIE, PA 17013 (717) 249-3166 FITZPATRICK LENTZ & BUBBA, P.C. 1 By: /axt~x ~. /y/x, ma~ Jo~/eph'R. Meiss, Esquire AttomeyI.D. No.: 86196 4001 Schoolhouse Lane P.O. Box 219 Center Valley, PA 18034-0219 (610) 797-9000 IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, PENNSYLVANIA CWIL DIVISION - LAW MANUFACTURERS AND TRADERS TRUST COMPANY Plaintiff, VS. DAWN CONVERSIONS, INC. Defendant. NO.: 03- CIVIL ACTION COMPLAINT Plaintiff, Manufacturers and Traders Trust Company, by and through its attorneys, Fitzpatrick Lentz & Bubba, P.C., Joseph R. Meiss, Esquire, appearing, files this civil action against the above-captioned Defendant whereof the following is a statement: 1. Plaintiff, Manufacturers and Traders Trust Company ("M&T Bank"), successor by merger to Keystone Financial Bank N.A. ("Keystone Financial"), is a federal banking institution with offices at One M&T Plaza, Buffalo, New York 14203 2. Defendant, Dawn Conversions, Inc. ("Dawn Conversions"), is a Pennsylvania Corporation which maintains and operates a business at 1445 Holly Pike, Cumberland County, Carlisle, Pennsylvania 17013. 3. On or about June 15, 1999, Dawn Conversions entered into an installment sale contract (the "Contract") with William and Carol Robertson (the "Robertsons") for the finance and purchase of a 1993 Buick Lesabre automobile (the "automobile"). 4. On or about June 15, 1999, Dawn Conversions subsequently assigned the Contract to Keystone Financial for a purchase price of seven thousand dollars ($7,000). A true and correct copy of the payment check, is attached hereto, made part hereof, and marked as Exhibit "A". 5. The Contract provides, in relevant part, that Dawn Conversions, as assignor, would repurchase the Contract from Keystone Financial in the event of default by the Robertsons. A true and correct copy of the Contract, is attached hereto, made part hereof, and marked as Exhibit "B". 6. On or about October 9, 2000, M&T Bank merged with Keystone Financial and became the successor to Keystone Financial's interest in the Contract. 7. During the term of the Contract, the Robertsons made periodic payments to Keystone Financial and M&T Bank totaling four thousand seven hundred eight dollars and seventy-eight cents ($4,708.78). 8. On or about May 14, 2001, the Robertsons filed Chapter 7 Bankruptcy. 9. Pursuant to the terms of the Contract, the Robertsons' voluntary petition for bankruptcy explicitly constitutes an event of default upon which M&T Bank may demand Dawn Conversions to repurchase the Contract. 10. On or about August 22, 2001, November 21, 2001 and May 28, 2002, M&T Bank made several written demands on Dawn Conversions for the repurchase and payment of the Contract. True and correct copies of the whtten demands, referenced above are attached hereto, made part hereof, and marked as Exhibit "C". 11. 12. automobile. 13. On or about July 31,2001 the Robertsons voluntarily surrendered the automobile. On or about August 13, 2001, Dawn Conversions regained possession of the Upon information and belief, Dawn Conversions subsequently resold the automobile and retained all the proceeds of the sale. 14. Despite the verbal acknowledgement of its obligations and debt, and the terms of the Contract, Dawn Conversions has wrongfully failed and refused to make payment. COUNT I BREACH OF CONTRACT 15. Paragraphs 1-14 are incorporated herein by reference as if set forth at length. 16. M&T Bank complied with and fully and satisfactory performed all of its obligations under the Contract. 17. The Contract provides for an award of reasonable attorneys' fees in the event M&T Bank requires Dawn Conversions to repurchase the Contract. 18. The Contract further provides that Dawn Conversions "will, on demand by [M&T Bank] repurchase the Contract from [M&T Bank]" in the event of default by the Robertsons. 19. Demand has been made on Dawn Conversions for payment, however, Dawn Conversions wrongfully failed and refused to make payment to Manufacturers and Traders Trust Company. 20. As a direct result of Dawn Conversions' breach of the Contract, the sum of $4249.52 is now due, owing and unpaid. 21. M&T Bank loss of the aforementioned amount resulted directly from Dawn Conversions breach of the Contract. 22. As a result of Dawn Conversion's breach, Dawn Conversions owes M&T Bank the sum of not less than $4249.52, together with interest and M&T Bank's reasonable attorney's fees. WHEREFORE, The Plaintiff, Manufacturers and Traders Trust Company requests judgment be entered in its favor and against Defendant, Dawn Conversions, Inc. in the amount of $4,249.52 plus further interest, attorney's fees and cost of suit. COUNT II FRAUD 23. Paragraphs 1-14 are incorporated herein by reference as if set forth at length. 24. On or about August 3, 2001, M&T Bank verbally notified Dawn Conversions of its obligation to repurchase the Contract because of the Robertsons' bankruptcy filing. 25. On or about October 18, 2001, Dawn conversions acknowledged its obligations and informed M&T Bank that the automobile would have to be resold to raise funds for paying the debt. 26. M&T Bank, relying on the representations of Dawn Conversions, surrendered the automobile's title to Dawn Conversions in order for it to sell the automobile. 27. Upon information and belief, Dawn Conversions, in fact, did resell the automobile and retained all the proceeds of the second sale. 28. Dawn Conversions representations were made with the intent to induce M&T Bank to surrender the title to the automobile. 29. M&T Bank believes, and therefore avers, that such representations were materially false, in that Dawn Conversions had no intent of turning over the proceeds of the second sale to M&T Bank. 30. Dawn Conversions made the material representations to M& T Bank with the actual knowledge of its falsity at the time it was made, or in reckless disregard of its truth or falsity. 31. In justifiable reliance upon the misrepresentations of Dawn Conversions, M&T Bank surrender the automobile's title to Dawn Conversions. 32. As a result of the misrepresentations of Dawn Conversions, M&T Bank has been damaged in the amount of $4249.52. 33. M&T Bank believes, and therefore avers, that it is entitled to compensatory damages in the amount of $4249.52, and punitive damages as a result of Dawn Conversions' outrageous, reckless, intentional, wanton, and willful behavior. WHEREFORE, The Plaintiff, Manufacturers and Traders Trust Company requests judgment be entered in its favor and against Defendant, Dawn Conversions, Inc. in the amount of $4249.52 plus punitive damages, further interest, attorney's fees and cost of suit. COUNT III UNJUST ENRICHMENT In the event it is determined that the Contract is unenforceable in fact or law as alleged in Count I, the Plaintiff, Manufacturers and Traders Trust Company alleges as follows: Paragraphs 1-33, above, are incorporated herein by reference as if set forth at 34. length. 35. On or about June 15, 1999, M&T Bank, at the request and knowledge of Dasvn Conversions, purchased the Contact from Dawn Conversions to facilitate the sale of the automobile to the Robertsons. 36. The Robertsons voluntarily filed for bankruptcy and Dawn Conversions regained possession of the automobile. 37. Upon information and belief, Dawn Conversions subsequently resold the automobile and retained all the proceeds of the sale. 38. As a result of the aforementioned, Dawn Conversions became unjustly enriched at M&T Bank's expense because it sold the automobile twice and retained the proceeds of both sales. WHEREFORE, the Plaintiff, Manufacturers and Traders Trust Company requests judgment be entered in its favor and against Defendant, Dawn Conversions, Inc. in the amount of $4249.42 and such other and further relief as the Court may deem just and proper. FITZPATRICK LENTZ & BUBBA, P.C. By: /m~J~ (~. Jo~ept~R. Meiss, Esquire I.D. No. 86196 4001 Schoolhouse Lane P.O. Box 219 Center Valley, PA 18034-0219 (610) 797-9000 Michael E. Nowicki being duly sworn according to law, deposes and says that he/she is the f~f~r~ ~/~u ~ rc t~ ..... for Manufacturer.~ and Tr/uzlers Trust Company, eatd that such, he/she is authorized to make this vefificsdon on its behalf, and avers that the facts set fo~'th in the witfiin Comply/hr are true and correct to the best of his&er knowledg;, information belief and tl~at he/she is maltinE these statements sub. icct to thc penalties of 1~ Pa. C.S.A. 4.904 relating to msswom falsification ~o authorities, Exhibit A OFFICIAL CHECK Exhibit B SIMPLE INTEREST PENNSYLVANIA "'- * MOTORVEHICLEINSTALLMENTSALECONTRACT Oaled J,,,,,,c /,.r'- lf~ /o ~ Total of Payments olaf Sale PT,Ce t ~ $ [ Prepayment: II you oar oN eaTly, you will nol have to pay a penally F~liq Fees: $ .~ ~ we are ~ YOU DO NOT MEET YOUR CONTRACt ~~/' OBLIGATIONS, )OU MAY LOSE THE MOTOR theSEttER.~~fU~O~ ~/~y~ ~d//~ ~1/~ ~ ~ VEHICLE AND PROPERIY IHAI YOU Name Md~ess / ~ Zm Code BO~HT WITH THIS CONTRACt AND/OR MONEY ON DEPOSIT W TH THE ~SIGNE~ l 2 Z. % TERMS: Ihe lemls shown in Ihe Poxes adore ate part ol Ih:$ Contracl, PROMISE TO PAY: You agree Io pay us the 1Dial Sak, Pp~ce roi the Vehicle dy fllak nE the Dash SECURITY TRADE-IN PROPERTY INSURANCE:-Yon may choose he person hrouglt whom nsu ~nce s obtained againsl loss or damaae ~o the Veh cie and aga ns haPddy a.sing out of use ~r ownership ol the Veh~le: Iff Ibis ~ntracl you ar~ promisinl to insure the Veh~Je and keeo ~ Jnsured. CREDIT INSURANCE IS NOT REQUIRED: Cred~ Ufe Insurance and Credit Oisabilil~ Iflsu~ance ale nol reemfed to o~lam creo~L not be ~rovJded unless you s~gn below and agree to pay Ihe ~dditiofla~cos s) P ease rea~ he NOT CE ~F PROPOSEO CREDIT INSURANCE ~ ~ ~ Ser~es ~ ~ ~ ~ ~ Caoacdv Serial ~ [Qu,pp~d ~_AI ~P,S ~AMFMSIereo __5Spo. Other ...... ~ A,C _~9,W. ~AM.FM Tape _~VmylTop K~TONE FI~NCIAL BANK. fi.k, ] Ke~tone Plaza, Hm~bur¢ PA CO-SIGNER: Any ~.~son ,~gnnle Ihe Co-SiglleFs Agreement ~low promi~s sepa~alely and together wdh all ~.S4iner(s) and 6uyeqsL to Itemization of Amount Financed Cash Price s / 9'0 $ E lo Public Offm~ls License, la s i~ Registration To ~ To s ~00,00 Fiflince ChITII Total of Paymems (Tune~)l~ce) T YOI ~ /?oB,So 10~ , 7.Oo0.0 o Total of Payments ~ime~)l~e~ SIRnature of Buyer Io ~e Insured for Single Cledll Life InSlrraflce S4gnalule$ ol ho~h Buyers ~o be insured lot Jotul Credit Accident & Heil~h Insurance VEH CLE You have agreed Io pulchase under Ihe terms of this Contract, the IpllowmS motor vehicle and its extra equipment, which Is called ~-/~ YeaF and Mille ~ ~ ~ ~ CaDacitv Serial Number Eqmp~d ~KT.~P,S. ~AM-FMStereu ~SSPd Other wW ~. A.C, ~ P.W. ~RM-~ Tape ~ Vinyl lop .K~TONE FIMNC~ ~N& NH; ~ Ketone Pl~a, Harri~arg, PR 17105 CO*SIGNER: Any person slgmng lfle ~-Sig~eCs Rgreemen~ below premiss seplrltely lnd lqelher ~lh ~11 Co-Siineris) and 8uyeris), o pay all sums due and Io ~rfofm aB aifeemeAIs m this C0nIracL Co-siiAef lill not be afl O~er Of t~e Vihicle. CO-OWNER: Any pe~n ~ign~nl the ~:Owner's Securily Aire~mefll below lives us i ~cur y n e es fl the Veh C e a d al ecs sepa a e y ~nd Iogether with a~l ~-Owner[sJ NAd Buyer(s). to pedorm aB Igreemenls m Ihe S~u~ly kgreemenl a~d all oiher pa~s of this Conlracl e~ceol the TERMS: The lerms ShOWA iff t~ ~xes above are pa~ of Ihis Contracl, . g Y . D SIDE YOU ARE OBLIGATED TO ALL THE TERMS OF THE CONTRACT WH CH APPEAR ON THE send~ymen~totheaddresswhichtheA~ig~eemoslrecendys~rflesmt~wri~en~t~etayou. FR0~T AND REVERSE SIDES INOTICE TO BUYER--:DO NOT SIGN THIS CONTRACT IN BLANK. YOU ARE ENTITLED TO AN EXACT COPY OF THE CONTP~CT YOU SIGN, KEEP IT TO PROTECT YOUR LEGAL.~,RIGHTS../~ ~ Date C(}-N GNER ¥O[~ SHOULD REAl) TIlE NOTICE TO CO-SIGNER, WHICll IIAS.BEEN GIVEN TO YOU ON A SEPARATE DOCUMENT ~IEFORE BUYER, CO-SIGNER AND CO-OWNER, AS APPLICABLE ACKNOWLEDGE RECEIPT OF A COMPLETED COPY OF TH S CONTRACT AT THETIUE OF SIGNING. ~, ORIGINAL ADDITIONAL TERMS ANp CONOiTIONS I] WAIVERS 8¥ BUYER. CO·SIGNER AND CO-OWNER: you a~..ree I~ ma~ al, paymenls en ' 13!:OU'R RIG::I~ IF YOU AbE iN. DE'FAULT OE THIS CON ERECT. ir veu.a~ie iG ~lau~l o~ ,h,s ~ 7 INTEREST AFTER MATURITY AND JUDGMENT' ~nle~es a e ale ~owded m n ~' OUR RIGHTS IF YOU eRFAK YOUR PROklIS[.~ ABOUT:;I'flE-.SECURITY INTEREST )4 SOME 1NINGS YOU SHOULD KNOW IF WE REPOSSESS THE VEHICLE )~ we ze~sses5 16 GOVERNING LAW: llus ~m:t~act ,s ,~ b~ :,-.le~)~etec ac. cc~m Buyer's Guide Window Sticker. II the Car which ~s described on the [ace ol th~s Conhact I~as a Bu:,'cr's Gu,de Wmdr~ Shcker requ,eo by FraUD Commission Used Car Trade Regulatimr Rule, the Iollowmng not,ce , The information you see on the window fo~m for this Vehicle ~s part ol this Contract· Informal,on on the window form over[ides any C. conxrary p~fHSio~s in tire contract of sale. NOTICE--ANY HOLDER OF TINS CONSUMER CREDIT CONTRACT IS SUBdECI TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLEROFGOODSORSERVICESOBTAiHEDPURSUANTHER(TOORWiTH THE PROCEEDS HEREOF RECOVERY HEREUNDER BY THE OE61'OR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. NOTICE OF PROPOSED CREDIT INSURANCE NOEICE: SEE 01HER RIL)E EOR IMf'nRIAN1 INFORMATION THE PROVISION BELOW IS NOT PART OT IHE PENNSYLVANIA MOTOR VEHICLE INSTALLMENT SALE CONTRACT BETWEEN THE BUYER AND SELLER· ASSlGNMEN1 DELAY IN ENFORCE¥[NT: We ca~, ~elav eniofcmC o~, i ~llts unde¢ [h~s Corllracf ~, ' THAN II WiTH R[PURCHAS£--Seller agrees thal, ~ l addltmn 1o 1ne prov s OhS of ne pa ag apb above lit/ed "As$1gnmen "m the even ~s~,~, ,Z.':~'~' .~"' '~ '? ':': ~'~.' '.' ,,' :":,.'. ,:- 8~ .. Exhibit C M&TBank AUGUST 22, 2000 DAWN CONVERSIONS INC. 1445 HOLLY PIKE CARLISLE, PA 17013 ATTN: BRUCE RE: WILLIAM ROBERTSON ACCOUNT: 88328320001 COLLATERAL: 1993 BUICK LESABRE DEAR BRUCE: THE ABOVE REFRENCED VEHICLE WAS REPOSSESSED BY M&T BANK ON AUGUST 10, 2001. THE CONTRACT WAS SIGNED WITH RECOURSE AND THE PAYOFF OF $3,681.49 MUST BE FORWARDED TO MY ATTENTION IMMEDIATELY ON AUGUST 31, 2001. PLEASE BE ADVISED THAT THE CUSTOMER HAS UNT/L MIDNIGHT OF AUGUST 25, 2001 TO PAY THE LOAN IN FULL UNDER THE TERMS OF THE ORIGINAL CONTRACT. THE VEHICLE CANNOT BE RECONDITIONED OR PUT ON YOUR LOT FOR RESALE UNTIL THE NEXT BUSINESS DAY. ERELY, ' ~Ol~ES J LACKI RECOURSE SPECIALIST 716.630.4956 MJL/mlc [lOtllllI C M&TBank NOVEMBER 21, 2000 DAWN CONVERSIONS INC. 1445 HOLLY PIKE CARLISLE, PA 17013 ~ SECOND NOTICE ATTN: BRUCE RE: WILLIAM ROBERTSON ACCOUNT: 88328320001 COLLATERAL: 1993 BUICK LESABRE DEAR BRUCE: THE ABOVE REFRENCED VEHICLE WAS REPOSSESSED BY M&T BANK ON AUGUST 10, 2001. THE CONTRACT WAS SIGNED WITH RECOURSE AND THE PAYOFF OF $3,681.49 MUST BE FORWARDED TO MY ATTENTION IMMEDIATELY ON NOVEMBER 28, i001. PLEASE BE ADVISED THAT THE CUSTOMER HAS UNTIL MIDNIGHT OF AUGUST 25, 2001 TO PAY THE LOAN IN FULL UNDER THE TERMS OF THE ORIGINAL CONTRACT. THE VEHICLE CANNOT BE RECONDITIONED OR PUT ON YOUR LOT FOR RESALE UNTIL THE NEXT BUSINESS DAY. J LACKI URSE SPECIALIST 716.630.4956 MIL/talc Manufacturers and Traders Trust Company One M&T Plaza, Buffalo, New York 14203 (716) 842-4611 Fax: (716) 842-5376 E-Mail: dspriegel@mandtbank.com David D. Spriegel Assistant Vice President and Associate Counsel May 28, 2002 Dawn Conversions, Inc. 1445 Holly Pike Carlisle, Pennsylvania 17013 Attn: President Re: William and Carol Robertson - Recourse Contract Dear Sir or Madam: I am Associate Counsel for Manufacturers and Traders Trust Company ("M&T Bank" or "Bank"), who is the successor by merger to Keystone Financial Bank, N.A. ("Keystone"). On or about June 15, 1999, Keystone purchased from you the retail installment sale contract of William and Carol Robertson for the purchase of a 1993 Buick Lesabre. Keystone purchased this contract with full recourse. On May 14, 2991, the Robertsons filed for bankruptcy protection. The unit was voluntarily surrounded to the Bank and the unit was immediately transported to your facility. Demand was made for repurchase of the obligation in accordance with the contract due to the borrower's default. The assignment portion of the retail installment sale contract states: "WITH FULL RECOURSE- Seller-agrees that, in addition to the paragraph above entitled "Assignment," in the event of default by Buyer in the full payment on the due date thereof of any installment payable under the Contract or in the prompt performance of any other obligation to be performed under the Contract by Buyer, Seller will, on demand by Assignee, forthwith repurchase the Contract from Assignee for a repumhase price, in cash, as set forth above." The Robertsons have defaulted under their payment obligation on the note. Furthermore, despite due demand to repurchase the contract, and having received possession of the vehicle, your dealership has failed to satisfy this account. Dawn Conversions, Inc. President May 28, 2002 Page 2 By reason of the foregoing, M&T Bank hereby demands that the dealership reimburse the amount of $4,016.65. If we do not receive a response to this letter by June 4, 2002, M&T Bank will be forced to pursue its legal fights and remedies against you. Any additional delays on your part may result in liability for additional attorneys' fees and court costs and interest, which you have the ultimate contractual and legal responsibility to pay. Nothing herein or in previous or subsequent discussions or communications between the parties and/or respective counsel or representatives shall prejudice or be deemed to be a waiver, estoppel or forbearance by M&T Bank of its rights and remedies under the contract, any agreements, or applicable law, all of which are expressly reserved. Sincerely, David D. Spriegel cc: Michael Nowicki / G:~DATA\WPDOCS~DAVID\dawn conversions.ltl .doc -/ •• -. r 4~ ~~ ` ~ O n C"T r"`5 "L' t " ~ T r, ;~ ~ - r~.~ r _.r. -- y ~ _ ~ --C -< L SHERIFF'S RETURN - REGULAR CASE NO: 2003-00322 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MANUFACTURERS AND TRADERS TRUS VS DAWN CONVERSIONS INC KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon DAWN CONVERSIONS INC the DEFENDANT , at 1155:00 HOURS, on the 28th day of January at 1445 HOLLY PIKE CARLISLE, PA 17013 BRUCE RUTH, PRESIDENT a true and attested copy of COMPLAINT & NOTICE , 2003 by handing to AJDULT IN CHARGE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 31.45 Sworn and Subscribed to before me this ~0~ day of I Pr tho *o Jary So Answers: R. Thomas Kline 01/28/2003 FITZPATRICK LENTZ & BUBBA By: ~De~t~ f~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW MANUFACTURERS AND TRADERS TRUST COMPANY Plaintiff, VS. DAWN CONVERSIONS, INC. Defendant. NO.: 03-322 CIVIL ACTION ORDER TO SETTLE~ DISCONTINUE AND END To the Prothonotary: Kindly mark this action settled, discontinued and ended of record. FITZPATRICK LENTZ & BUBBA, P.C. By: /~ ~ ~9'2.t~.~ JoSeph ~. Meiss, Esquire I.D. No. 86196 4001 Schoolhouse Lane P.O. Box 219 Center Valley, PA 18034-0219 (610) 797-9000 Attorneys for Plaintiff, Manufactures and Traders Trust Company