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HomeMy WebLinkAbout03-0567GROEN, LAMM, GOLDBERG & RUBENSTONE, LLC By: Anthony L. Lamm, Esquire Everett K. Sheintoch, Esquire Identification No. 42855 & 51507 Four Greenwood Square, Suite 200 Bensalem, PA 19020 (215) 638-9330 (215) 638-2867 - Facsimile ATTORNEYS FOR PLAiNTIFF HELLER FiNANCIAL LEASiNG, 1NC., A GE Capital Company, Assignee of First Sierra Financial, Inc., Assignee of Direct Capital Corporation 1010 Thomas Edison Blvd. SW Cedar Rapids, IA 52404 Plaintiff, V. DANIEL A. HOFFMAN 5001 Carlisle Pike Mechanicsburg, PA 17050 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. C35- S'6,7 CIVIL ACTION NOTICE TO DEFEND "You have been sued in 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 with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and Judgment may be entered against you by the Court without further notice for any money claimed in the Complaint of for any other claim 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 COURT ADMINISTRATOR CUMBERLAND COUNTY COURTHOUSE 4TM FLOOR CARLISLE, PA 17013 (171) 240-6200 252628-I AVISO "Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara mediadas y peude continuar la demanda en contra suya sin previo avios o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. "LLEVE ESTA DEMAND A UN ABOGADO IMMEDIATAMENTE, SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICO, VAYA EN PERSONA O LLAME FOR TELEFONO A LA OFFICINA CUYA DIRECION SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL." LAWYER REFERRAL SERVICE COURT ADMINISTRATOR CUMBERLAND COUNTY COURTHOUSE 4TM FLOOR CARLISLE, PA 17013 (171) 240-6200 252628~1 GROEN, LAMM, GOLDBERG & RUBENSTONE, LLC By: Anthony L. Lamm, Esquire Everett K. Sheintoch, Esquire Identification No. 42855 & 51507 Four Greenwood Square, Suite 200 Bensalem, PA 19020 (215) 638-9330 (215) 638-2867 - Facsimile ATTORNEYS FOR PLAINTIFF HELLER FINANCIAL LEASING, INC., A GE Capital Company, Assignee of First Sierra Financial, Inc., Assignee of Direct Capital Corporation 1010 Thomas Edison Blvd. SW Cedar Rapids, IA 52404 Plaintiff, V. DANIEL A. HOFFMAN 5001 Carlisle Pike Mechanicsburg, PA 17050 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION COMPLAINT Plaintiff, Heller Financial Leasing, Inc., a GE Capital Company, Assignee of First Sierra Financial, Inc., Assignee of Direct Capital Corporation, by and through its undersigned attorneys, Groen, Lamm, Goldberg & Rubenstone, LLC, brings this action against the above- named Defendant, Daniel A. Hoffman, and in support thereof avers as follows: 1. Plaintiff, Heller Financial Leasing, Inc., a GE Capital Company, Assignee of First Sierra Financial, Inc., Assignee of Direct Capital Corporation ("Heller") is a corporation organized and existing under the laws of the State of Delaware and duly registered to operate as a foreign corporation in Pennsylvania with its principal place of business located at 1010 Thomas Edison Blvd. SW, Cedar Rapids, IA 52404. 2. Defendant, Daniel A. Hoffman ("Hoffman"), upon information and belief, is an adult individual whose last known address to Heller is 5001 Carlisle Pike, Mechanicsburg, PA 17050. 252628-1 3. Dynamic Appraisals, Inc. and Direct Capital Corporation ("DCC") entered into a certain commercial Equipment Lease Agreement ("Lease"), which provided for the lease and hire of certain items of equipment as more particularly described therein ("Equipment"). A true and correct copy of the Lease is attached hereto, incorporated herein and marked as Plaintiffs Exhibit "A." 4. In order to induce DCC to enter into the Lease, Hoffman made, executed, and delivered a personal Guaranty ("Guaranty") to DCC, wherein Hoffman individually agreed to personally, absolutely and unconditionally guaranty to DCC, its successors, and assigns, all payments and other obligations owed to DCC under the Lease. See, Exhibit "A." 5. The Lease requires Hoffman, as guarantor, to, inter alia, make thirty-six (36) consecutive monthly payments in the amount of $1,913.65 each, plus applicable taxes, until the entire obligation is paid in full. 6. On or about September 15, 1999, First Sierra Financial, Inc. ("First Sierra") became the successor-in-interest by reason of Assigranent to all of DCC's right, title, and interest in and to the Lease, Guaranty, and Equipment, including the right to enforcement thereof, and in the Equipment covered thereby. A true and correct copy of the Assignment from DCC to First Sierra is attached hereto, incorporated herein and marked as Plaintiff's Exhibit "B." 7. Thereafter, Heller, as a company of GE Capital, became the successor-in-interest by reason of Assignment to all of First Sierra's right, title, and interest in and to the Lease, Guaranty, and Equipment, including the right to enforcement thereof, and in the Equipment covered thereby. COUNT I - BREACH OF CONTRACT 8. The averments contained in paragraphs 1 through 7 of this Complaint are incorporated by reference as though here set forth in full. 252628-1 9. Hoffman breached the terms and conditions of the Guaranty and become in default thereof, inter alia, by reason of his failure to make the payment due under the Lease for the month of January 2002, and all payments due subsequently thereafter. 10. As a result of said default, Heller exercised its option to accelerate all remaining payments and declared the entire balance of the Lease immediately due and payable, together with any and all sums lawfully due thereunder. A true and correct copy of the notice of acceleration to Hoffman from Heller is attached hereto, incorporated herein and marked as Plaintiffs Exhibit "C." 11. In accordance with the terms and provisions of the Lease and Guaranty, Hoffman is obligated and liable to Heller for the following: (a) Balance of Payments $34,445.70 (b) Late Charges 2,105.07 (c) Insurance 510.12 (d) Collection Charges 42.51 (e) Residual Value of Equipment 1,904.13 Total $39,007.53 WHEREFORE, Plaintiff, Heller Financial Leasing, Inc., a GE Capital Company, Assignee of First Sierra Financial, Inc., Assignee of Direct Capital Corporation demands Judgment in its favor and against Defendant, Daniel A. Hoffman in the amount $39,007.53 plus attorney's fees and cost of suit, interest, as well as such other and further relief as this Honorable Court shall deem just and proper. COUNT II - REPLEVIN 12. The averments contained in paragraphs 1 through 11 of this Complaint are incorporated by reference as though here set forth in full. 13. Pursuant to the terms and conditions of the Lease and the Uniform Commercial Code as enacted in Pennsylvania and, by virtue of the default of Hoffman, Heller is entitled to 252628-1 immediate possession of the Equipment as set forth in the Lease and as provided by 13 Pa. C.S.A. §2A-525 and 2A-518-525 and/or 13 Pa. C.S.A. §9-610 et seq. 14. Hoffman remains in possession of the Equipment to the exclusion of Heller. 15. The estimated value of the Equipment is not in excess of $40,000.00. 16. Although frequent demands have been made, Hoffman has failed, refused, and neglected to deliver possession of the Equipment to Heller. WHEREFORE, Plaintiff, Heller Financial Leasing, Inc., a GE Capital Company, Assignee of First Sierra Financial, Inc., Assignee of Direct Capital Corporation demands Judgment in its favor and against Defendant, Daniel A. Hoffman for possession of the Equipment, or its equivalent value, plus attorney's fees, costs of suit, interest, as well as such other and further relief as this Honorable Court shall deem just and proper. COUNT III - CONVERSION 17. The averments contained in paragraphs 1 through 16 of this Complaint are incorporated by reference as though here set forth in full. 18. Hoffman has interfered, without lawful justification, with Heller's property rights in the Equipment. 19. Under the terms of the Lease, the Equipment remains the property of Heller, and no right, title or interest in the Equipment shall pass to Hoffman. 20. Hoffman has demonstrated intent to exercise dominion, or control over the Equipment, that is inconsistent with Heller's property rights, as established by the conditions set forth in the Lease and the applicable provisions of the Uniform Commercial Code. 21. Alternatively, Hoffman is unreasonably withholding possession from Heller as to the Equipment, and Heller has the right to immediate repossession of same. 252628-1 22. As a proximate result of said conversion by Hoffman, Heller has suffered damages in the amount of $39,007.53, the balance due and owing under the Lease, and/or the fair market value of the Equipment at the time of the conversion. WHEREFORE, Plaintiff, Heller Financial Assignee of First Sierra Financial, Inc., Assignee Leasing, Inc., a GE Capital Company, of Direct Capital Corporation demands Judgment in its favor and against Defendant, Daniel A. Hoffman in the amount of $39,007.53, for the possession of the equipment, and/or the value of the Equipment at the time of the conversion, plus attorney's fees, costs of suit, interest, as well as such other and further relief as this Honorable Court shall deem just and proper. GROEN, LAMM, GOLDBERG & RUBENSTONE, LLC Date: By: Anthony L. Lamm, Esquire Everett K. Sheintoch, Esquire Attorneys for Plaintiff 252628-1 VERIFICATION I, Kathy Barkalow, Litigation Specialist for Plaintiff, Heller Financial Leasing, Inc., a GE Capital Company, Assignee of First Sierra Financial, Inc., Assignee of Direct Capital Corporation verify that I am authorized to and do make this Verification on its behalf and that the statements made in the foregoing Complaint are true and correct. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsifications to authorities. HELLER FINANCIAL LEASING, INC. Date: 7 03 By: Ka~B'~kalow Litigation Specialist 252628-1 EXHIBIT "A" Di~ect c~pi~ml ~~c~ 871 Isli~ Stree~ Bo~t-~m-~th, ~H 03801 A. I~t or: Dynamic Appraisels, Inc. 5001 Carisle Pike Mechanicsburg, PA ] 705~ Supp~': B. Collateral See a~ched invo,ce(s; or equlpmenl st Location: C- Schedule of Payments: Initial To~ Number Amount of Eac~ ' Total Initial Payment $ 4, Term Of Payments Payment (,n ~.~) :First $1,913-65 Doc. FeeS 350.00 36 36 1,913.65 i Last $1,913.65 Deposits 0.00 O. OIEdZt. AJMER DE W~TIE$ AND CLAJMS: -;MITATION OF RJ-'MEDIES. THERE ARE NO W~ES BY OR ON BEHALF O4~ SECURED PAJ~TY AND NEITHER THE SUPPLER NOR ANY O.--~IER pA~T" IS ~CURED F-~RTY'S AGENT. DEBTCR ACKNOW'LI~DGES AND AGREES BY ITS SIGNATURE BELOW AS FOLLOWS: (A) SECURED PA~TY MAKES NO WAP. RAN'EES EITHER -~YJ:~E.-SS OR ;UPLIED AS TO THE COND,.-'ION OF THE C0~.LATERAL. ITS MERCHANTABILITY, ITS FITNES~ O~ SUITABILITY FOR ANY PART{~JLA~ PURPOSE. ITS DESIGq. ITS CO,'vDmC~,. ITS C. AF ACITY. ,*TS O'jALfT¢. OR W1TH RESPECT TO ~ CHARACTERISTICS OF THE COt. LATERAL; (B) DEBTOR ACCEPTS COLI.~TERAL 'AS iS' A~O WITH AL_ FAULTS; (C) D=~TOR AC{tJVOW'~DGES ~r{AT THE COLLATF_RAL WILL BE USEO SOLELY FOR COMMERCIAL O~ BUSINESS PURPOSES; (D) tF THE COLLAT-~RAL ;S NOT P~OPET~.Y INSTAL-ED. DOES NOT O{:'F. RATE AS REPRESENTED OR WA.CU~aJqTE0 BY THE SUPPLIER OR MANUFACTURER, OR IS UNSATISFACTORY FOR AhfY REASON. REGARD'=S~q OF C,NJSE OR CO~SEQUENCE. DEBTOR'S ONLY REMEDY, IF NVY. SHALl. BE AGAINST THE SUPPLIER OR MANUFACTURER OF THE COO. AT-~RAL AND NOT AC.-~INST 9ECiJREO PARTY; (E) DEBTOR SHALL HAVE NO REMEDY FOR CONSEQUEN'rLN. OR INCIDENTAl. DAMAGES AGAINE'F SECURc~3 PA.TrY; ANO iF) NO DEFECT. D&MAC.~ OR UNFITNESS OF THE COLLATERAL FOR ANY PURPOSE SHALL REME'VE DEBTOR OF THE OBI.IGA]]ON TO MAKE PAYML.~'r$ OR REI.IEVE D~BTOR Ct~ ANY OTHER O~.JJC.,ATIO~ UNDER TH~ AGREEMENT ~ AG R. EI~.N'T, ~ 'rTJu4s OF WH~C~ HA '.,'E BE~2~ t-~=t y NEGO1-,_~TED BY EACH PARTY, IS SU~IECT TO TH~ TERMS AND CONDftlONS ON mtl~ P.E~ER_~E SIDE OR FOLLOX~/NG PAGE ~C~ ARE SLIDE A PART I{EREOF ~_N'D ~CH DEBTOR AND SECURe/) PARTY AC~NO~E i~ I~A%'E ~ AND ACCEFrED. Inc. Guntantor Signature Daniel A. ~of~man X Gu. aranmr Daniel A. Hoffman Pagc I of 2 E's ha rc',£or'rns\ fo rm.,b atc h doc A'greement Number:. 92025 Exhibit referred to in and made part of Agreement dated (Debtor) and Direct Capital Corporation (Creditor). EXHIBIT "A" between Dynamic Appraisels, Inc. (Sale Lea~e Back) Item Ber4in Omniview P$2 Ca~J,e K~I loft / Ber~iin C,~niview At,~edal Cable Kit left/ Ima3on LF.-t 20 Sul:~-'disk Mac Fo~na::~l (s~x:Jle) Tace D~~- Lade DDS-4 ,,,vi Retmspec~ EXT SCSI Fuji 4mm ~ 50m ODS-4 Tace (si~e) TeK:rOnix Colomtix ~ (2 c/an black) F Phaser 840'"' Te~'onix Solomtix K:t (2 magema 1 840 Tek:Tonix Colomtix K~t (2 yeilow I black) F/Phase~ Co~r LW 12/600, 12. 660 Cyan Toner Ca~idge'" ~ LW 12/600, 12.~060 Black T~te~' Cart~dge Te~cronix :.ower Tray For i=ha~ 840-' Powe~st.:~J~ 450 wi4 Outlets Srr'art UPS ~ Rac~nount wi Powe~:hute Plus Software / ' Ins:all Memo~' 0Narahouse 3)~- Moo Appe 17 Studio Disptay blu~ht Power Mac G3z350 64MB;6GB~24XCO w/Free 64mb Ins=al A~.ptec Toast 3.5 CO-Recordi~:j Sol'twain Mac Ko. ac DC'265 Zoom Digital Camera 1536x1024 PPi Sony 74t. tin CD-R S,hiny Bulk 50Pk On Spindle Cc~or LW 12/600 Yeilow Tone~ Carf~dge Pc-werjo~. G3 Pm 333MHz w/lmb/2?.ZMHz CFU INT CJ466 8.4.64/40X/56K NIC MT 98 PR,N Tei~-onix 840 GP 10PPM 120OCPl C,~or Ne-work Coor LW 12/600.1Z'660 ktage~ta Tcoer Carb~ge HCD Mac~ell Firewim 22gb EXT F/Mac G3 USS To ADB Adapte~ Tektrem~ Lower Tray For Phaser 840 Phitiip's O~fice Products (Sate Lease Back) Quantity Item 117 Fellows SIomge Boxes (SSFEL00512) 13 Base F/512. Stax On Steel (SSFEL15602) Brenner Furniture (Sale Lease Back) Quantity Item 1 Reclining Sofa 2 Pillows Office Max (Sale Lease Back) Quantity Item 7 Contempormy H 61814 (gray/black) 6 4 Shall Bookcase (gray/black) 6 Sled Base Chair (gray) 24 Stacking Chair (blue) ~ 8 Stacking Chair (charcoal) 18 Clear Legal Pkts (clear) 6 Letter Size PMs (dear) 3 Conference Tables (slate) Office Furniture USA (Sale Lease Back) -~.Quantity Item ~.1 Conloured Front Executive Desk wi Cherty Finish ,~1 Computer Credenza w/Chem/F'mish ~ I Credenza Hutch wi Cherry Finish -~1~ Lateral File wi Chem/Finish Open Bookcase w/Cher~ Finish Staples (Sale Lease Back) Quantity Item 1~ ~3 18x60 Batricks Utility Table Wood Frame Sike Chair Delux Steno Chair Debtor: Dynamic Appraisels, Inc. Daniel A Hoffman , President Creditor: Direct Capital Corporation Authorized Representative EXHIBIT "B" ASSIGNMENT (With Transfer of Title to the Equipment) RE: Dynamic Appraisels, Inc., Lease Agreement Number: 92025 THIS ASSIGNMENT (this "Assignment ") is entered by Direct Capital Corporation a NH Corporation (Assignor), in favor of FIRST SIERRA FINANCIAL, INC. a Delaware Corpor~3~n~. ~("~3"), pursuant to that certain Broker Agreement dated 19 between Assignor and Assignee (the "Agreement") NOW, THEREFORE, in consideration of the covenants set forth in the Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Definitions: Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to such terms in the Agreement. Assiqnment of Leases: Effective as of the date hereof Assignor hereby irrevocably and unconditionally assigns, sells and transfers to F,~, and its successors and assigns, (a) the Lessees described in the attachments hereto (including all schedules, riders, exhibits, addenda, amendments, supplements and extensions to such Leases); (b) all of Assignor's right, title and interest and remedies in, to and under each of such Leases, including without limitation, the right to all scheduled rental payments, all insurance proceeds and condemnation awards, and all monies and security payable by any Lessee in the event of default by any Lessee under any such Lease and the right to take any and all proceedings, legal, equitable or otherwise, Assignor would otherwise be able to take, but for this Assignment; (c) all interest and rights and remedies of Assignor under, and all amounts payable under, any guaranty or guaranties of any Lessee's obligations under each of such Leases or any letter of credit or other credit support granted to Assignor in respect of such Leases, and (d) all proceeds of and payments received with respect to any or all or the foregoing. The acquisition of the aforesaid Leases shall not constitute any assumption by FS of any obligations (past, present or future) of Assignor or the "lessor" party under such Leases. Transfer of Title to the Equipment Effective as of the date hereof Assignor hereby §rants, conveys and assigns to FS. (a) all of Assignor's right, title and interest in and to the Equipment covered by the Leases described in the attachments hereto; (b) all of the Assignor's right, title and interest in and to all present and future insurance proceeds, condemnation awards, indemnity payments, rent, accounts, guarantees or other amounts payable -o*~)aid in respect of such Equipment; (c) all bills of sale, invoices and other documents relating to such Equipment and all right, title and interest of Assignor now or hereafter delivered by the manufacturer of seller with respect to such Equipment; and (d) all proceeds of payments received with respect to any of the foregoing. Further Assurances To facilitate the transfer provided by this Assignment, FS shall have the'right to endorse in its name or in the name of Assignor, and to deposit, all checks and drafts for payment made by L:essee under a Lease described in the attachments hereto, Assignor agrees to take such further action including, without limitation, the execution of financing statements provided by FS, to effectuate the assignment of Leases and transfer of title to the Equipment provided for in this Assignment. Assignor agrees that a photocopy of this assignment is suffident as a financing statement submitted to Assignor, FS is granted a power of attorney to sign Assignor's name on such financing 'statement as Assignor's t~'ue and lawful attorney. The foregoing power of Attorney is coupled with an interest and is irrevocable. 5. Successors and Assigns This assignment shall inure to the benefit of FS and its successors and assigns. IN WITNESS WHEREOF, Assignor has executed this Assignment by its duly authorized officer as of the date first above wdtten. Assignor: Direct Capital Corporation Authorized Representative EXHIBIT "C" LAW OFFICES GROEN, LAMM, GOLDBERG & RUBENSTONE, LLC FOUR GREENWOOD SQUARE MARCEL L. GROEN EDWARD H. RUBENSTONE ANTHONY L. LAMM SAMUEL C. TOTARO, JR. STEPHEN DAVID BRIAN E. APPEL BARBARA M. KIRK* SHERRY D. LOWE MADELEINE R. KAUFMAN* AXEL A. SHIELD, II* JOSEPH B. FINLAY, JR. JAMES J. MUSIAL* EVERETT K. SHEINTOCH* JOEL S. TODD* JONATHAN K. MOORE *MEMBER OF PA & NJ BARS MARK E. GOLDBERG (1970-2{~00) CHARLES H. LAVESON (1958-1993) SUITE 200 P.O. BOX 8544 BENSALEM, PA 19020-8544 (215) 638-9330 FAX: (215) 638-2867 EMAIL esheinto ch~glgrlaw.co m Direct Dial No. (215) 244-2458 December 30, 2002 OF COUNSEL WILLIAM GOLDSTEIN DONALD NASSHORN STEVEN P. BURKETT* (Montgomery County) 704-706 WEST AVENUE JENKINTOWN, PA 19046 (215) 572-7239 FAX: (215) 572-6692 NEW JERSEY OFFICE COMMERCE CENTER 1800 WEST CHAPEL AVENUE SUITE 301 CHERRY HILL, NEW JERSEY 08002 (856) 488-8006 FAX: (856) 488-5690 VIA CERTIFIED MAIL AND FIRST CLASS MAIL Daniel A. Hoffman 5001 Carlisle Pike Mechanicsburg, PA 17050 Re.' Heller Financial Leasing, Inc., Assignee of FirstSierra Financial, Inc., Assignee of Direct Capital v. Daniel A. Hoffman Breach and Default of Equipment Lease Agreement No. 29038133-001 and Guaranty Agreement Our File No. 12951- Dear Sir/Madam: Please be advised that this Law Firm represents Heller Financial Leasing, Inc., Assignee of FirstSierra Financial, Inc., Assignee of Direct Capital ("Heller") with reference to the above- referenced Equipment Lease Agreement ("Lease") executed by Dynamic Appraisals, Inc. and Guaranty Agreement ("Guaranty") executed by you, for the purpose of collecting the outstanding balance due under the Lease and Guaranty. Lessee, Dynamic Appraisals, Inc. has filed for Chapter 11 Bankruptcy Protection and had failed to make the payments due under the Lease for the month of January 2002, and all payments due subsequently thereafter. These actions constitute a breach and default under the Lease by the Lessee, and trigger the guarantor's obligations under the Guaranty to "unconditionally and irrevocably" guaranty the prompt payment and performance of all obligations of Lessee. Accordingly, you are in default of the Guaranty. In accordance with the terms of the Lease, following an event of default and, Heller has the right to exercise its option to accelerate the entire balance due under the Lease, file suit for all past due and future payments, late fees, interest and other charges and expenses that are due or 223724-1 Daniel A. Hoffman December 30, 2002 Page 2 may become due. Heller may also sue for repossession of any leased equipment pursuant to the Lease. You should also review paragraph "D" of the Lease, which provides a disclaimer of warranties on the leased equipment. Accordingly, Heller makes final demand for payment in the amount of $39,007.53 from you, as personal guarantor. Despite repeated demands by the collection representatives of my client, you, as guarantor, have failed and refused to pay all or any portion of the unpaid equipment lease charges and have avoided returning their calls or working amicably to resolve this matter. Therefore, you leave us no other alternative but to proceed to initiate suit to collect the aforesaid balance of $39,007.53. Enclosed herewith please find a true and correct copy of the Complaint in Civil Action that will be filed against you if the aforesaid sum is not paid within ten (10) days of the date of this letter. Once the Complaint has been filed, all legal costs, in accordance with the terms of thc Lease, will be your responsibility and serve to increase your indebtedness to my client. Please be aware that such action will substantially increase your cost, expense, and inconvenience in this matter and may have a negative effect upon your future credit rating. Payment must be received' in this office in the form of cashier's check, certified check, or money order made payable to "Heller Financial Leasing, Inc." on or before January 10, 2003. Notwithstanding anything contained herein, Heller reserves all of its past, future an conditional remedies against Daniel A. Hoffman, as Guarantor, and any and all of his available assets. Nothing contained herein should be construed as an admission or waiver on the part of Heller, its predecessors, successors, or assigns with respect to any of its rights and remedies. Very truly yours, GROEN, LAMM, GOLDBERG & RUBENSTONE, LLC Everett K. Sheintoch, Esquire EKS/lkk Enclosure cc: Heller Financial Leasing, Inc. 248005-I SHERIFF'S RETURN - NOT SERVED CASE NO: 2003-00567 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND HELLER FINANCIAL LEASING INC VS HOFFMAN DANIEL A R. Thomas Kline , Sheriff , who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT , to wit: HOFFMAN DANIEL A unable to locate Him COMPLAINT & NOTICE in his bailiwick. but was He therefore returns the the within named DEFENDANT , HOFFMAN DANIEL A NOT SERVED , as to SERVICE STOPPED PER FAX FROM DIANE REEVES AT GROEN LAMM GOLDBERG & RUBENSTONE. Sheriff's Costs: Docketing Service Affidavit Surcharge 18 00 6 9O 00 10 00 00 34 90 THOMAS- KLINE SHERIFF OF CUMBERLAND COUNTY GROEN LAMM GOLDBERG RUBENSTONE 02/20/2003 Sworn and subscribed to before me this f~ day of~ ~ A.D. tary '