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HomeMy WebLinkAbout98-02178 I I ~l -I ~I I I I ~i I ",. i C)! I ~ " ~ -, '\ \ \ , \ \ , \ \ \ I, I I I f I Ii " " /' .' / / / r' i ,I " v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1'0', J / 7r c~u~( TR'~- CIVIL ACTION - LAW W. WAYDE KELLY, Plaintlff KEITH L. PLASTERER and JAMIE LEE PLASTERER, Defendants COMPLAI,NT t'OR CONFESSION OF .ill.1llilMENT .!i'URSUANT '1'0 Pa.R.C.P. 2951lbl Plaintiff, by his attorneys, Snelbaker, Brenneman & Spare, P. C., files this Complaint For Confession of Judgment Pursuant to Pa.R.C.P. 2951(b) and in support thereof state the following: 1. Plaintiff is W. Wayde Kelly, an adult individual presently residing at 101 Kelly Drive, Carlisle, Cumberland County, Pennsylvania. 2. Defendants Keith L. Plasterer and Jamie Lee Plasterer are adult individuals with a residence and last known address of 36 Kelly Drive, carlisle, Cumberland County, Pennsylvania. 3. A true and correct copy of the original Guaranty dated November 10, 1997, which Guaranty shows the Defendants' signatures, is attached hereto and incorporated by reference herein as "Exhibit A". 4. The attached Guaranty serves as the instrument upon which this Complaint For Confession of Judgment is based. 5. 'rhe Promissory Judgment Note dated November 10, 1997 ll\W OFFICES which is referenced in the Guaranty is attached hereto and SNtLDAKER. BRE:NNEMAN incorporated by reference herein as "Exhibit B". lie SPARE 6. Judgment entered hereby is not being entered by NATURE or GUARANTY. Guarantors' liability under this Guaranty shall be open, unlimited and continuous for so long as this Guarant.y remains in force. Guarantors intend to guarantee at all times the performance and prompt payment when due, whether at maturity or earlier by reason of acceleration or otherwise, of all the Obligation. Accordingly, no payments made upon the Obligation will discharge or diminish the continuing liability of Gua~antors in connection with any remaining portions of the Obligation. DURATION or GUARANTY. This Guaranty will take effect when received by Obligee without the necessity of any acceptance by Obligee, or any notice to Guarantors or to Obligor, and will continue in full force until all indebtedness incurred or contracted before receipt by Obligee of any notice of revocation shall have been fully and finally paid and satisfied and all other obligations of Guarantors under this Guaranty shall have been performed in full. If Guarantors elect to revoke this Guaranty, Guarantors may only do so in writing. Guarantors' written notice of revocation must be delivered to Obligee at the address of Obligee listed above or such other place as Obligee may desJ.gnate in writing, This Guaranty may be revoked only with respect to ObHgation incurred or contracted by Obi igor, or acquired by Obligee thirty (30) days or more after the date on which written notice of revocation is actually received by Obligee. No notice of revocation hereof shall be effective as to any Obligation: (al existing at the date of receipt of such -2- not '0' , ,b' 'nour,.d or oont,.ot.d b' Obl,.or. or .o.u,r.d b' Obl'.... .'tb'n tb,rt' "O' d'" .fter r.o.'pt of .uob not '0' , '0\ no. ..,.t'n. or bere.ft.' or..t.d pureuont to or .v'deno.d b' .n' loon ..r....nt or oooo,t..nt und.r .h'ch Obl,.or ,. or 0" b'Ooo' obli..t.d to Obl'.'" or ,d' r.n...l" ..ten.,on.. oon.olid.tion.. .Ub.t'tut,on.. .nd r.fin.nc,n.' of the fore.oin.- Th' d..th of .ither or bOth of the Gu.r.ntor' ,h'" not op.r.te ., . revoo.t'on of li.b"it, hereunder of the e.t.te of e,ther Gu.r.ntor ., to tr.n..ot,on' .ntered 'nto or Obl,..tion ore.t.d ,ub.e.u.ot to .uoh d..th unt" .otu.l rec.,pt b, Obl,.ee of .ritt.n not'o. of the d..th of Gu.r.ntor. ,n, p.,oent b' Gu.r.ntor' .,th re,p.ot to the Obli..t'on .u.r.nte.d .h'" not r.duoe the o.,"UO obli..tion hereunder. unl'" .r,tt.n not,ce to th.t effeot be .otu.ll' reo.ived b, Obl,..e .t or prior to the ti.e of .uoh p.,.ent. Thi' Gu.rent' ,h.ll bind the e.t.te of ..oh of thO Gu.r.ntor. ., to thO Obli..tion cr..t.d both b.fore .nd .ft.r tho de.th or ino.p.o't, of e,th.r Gu.r.ntor. re..rdl..e of Obli.ee" .otu.l notioe of either Gu.r.ntor" de.th. subject to the fore.oin.. . deoe.eed Gu.r.ntor" e..outor or .d.,n,.tr.tor or other ,e." repre.ent.t,ve .., ter.in.te th" Gu.r.ot' in the ...e ..nner 'n .hich Gu.r.ntor .'.ht h.ve t.r.in.ted 't .nd .,th the .... .ff.ot. it i' .ntioiP.t.d tb.t fluotU.t'on. .., ooour 'n the ...r...t. ..ount of the Obli..t,on oov.r.d bY thin Gu.r.nt,. Th" Gu.r.nt, ,. b'nd'n. upon e.oh Gu.r.ntor. jo'ntl' .nd .ever."" .nd on e.oh Gu.r.ntor'. beire. p.r.on.' repreeent.tive" eUooee.or, .od .ee,.n' 'a long .e .n, -3- of the guaranteed Obligation remains unpaid. GUARANTORS' AUTHORIZATION TO OBLIGEE. Guarantors authorize Obligee, either before or after any revocation hereof, without notice or demand and without lessening Guarantors' liability under this Guaranty, from time to time: (a) to alter, compromise, renew, extend, accelerate or otherwise change one or more times the time for payment or other terms of the Obligation or any part of the Obligation; extensions may be repeated and may be for longer than the original loan term; (b) to determine how, when and what application of payments and credits shall be made on the Obligation; (c) to sell, transfer, assign or grant participations in all or any part of the Obligation; and (d) to assign or transfer this Guaranty in whole or in part. GUARANTORS' REPRESENTATIONS AND WARRANTIES. Guarantors represent and warrant to Obligee that (a) no representations or agreements of any kind have been made to Guarantors which would limit or qualify in any way the terms of this Guaranty; (b) this Guaranty is executed at Obligor's request and not at the request of Obligee; (c) Obligee has made no representation to Guarantors as to the creditworthiness of Obligor; (d) upon Obligee's request, Guarantors will provide to Obligee financial and credit information in form acceptable to Obligee, and all such financial information provided to Obligee shall be true and correct in all material respects and fairly presents the financial condition of Guarantors as of the dates thereof, and no material adverse change has occurred in the financial condition of Guarantors -4- sinoe the date of the finanoial statements; and (e) Guarantors have established adequate means of obtaining from Obligor on a continuing basis information regarding Obligor's finanoial oondition. Guarantors agree to keep adequately informed from suoh means of any facts, events or circumstances which might in any way affect Guarantors' risks under this Guaranty, and Guarantors further agree that, absent a request for information, Obligee shall have no obligation to disclose to Guarantors any information or documents acquired by Obligee in the course of its relationship with Obligor. GUARANTORS' WAIVERS. Except as prohibited by applicable law, Guarantors waive any right to require Obligee: (a) to make any presentment, protest, demand, or notice of anY kind, including notioe of any nonpayment of the obligation or of any nonpayment related to any collat.eral, or notice of any acti.on or nonaction on the part of Obligor or Obligee in connection with the obligation; (b) to resort for payment or to proceed directly or at once against any person, including obligor; (c) to proceed direotly against or exhaust any collateral held by Obligee from Obligor, any other guarantor, or any other person; (d) to pursue any other remedy within Obligee's power; or (e) to commit any act or omission of any kind, or at any time, with respect to any matter whatsoever. If now or hereafter (a) Obligor shall be or become insolvent, and (b) the obligation shall not at all times until paid be fully secured by collateral pledged by Obligor, -5- Guarantors hereby forever waive and relinquish in favor of Obligee and obligor, and their respective successors, any claim or right to payment Guarantors may now have or hereafter have or acquire against Obligor, by subrogation or otherwise, so that at no time shall Guarantors be or become a "creditor" of Obligor within the meaning of 11 V.S.C. section 547(b), or any successor provision of the Federal bankruptcy laws. Guarantors also waive any and all rights or defenses arising by reason of (a) any "one action" or "anti-deficiency" law or any other law which may prevent Obligee from bringing any action, including a claim for deficiency, against Guarantors, before or after Obligee'S commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale; (b) any election of remedies by Obligee which destroys or otherwise adversely affects Guarantors' subrogation rights or Guarantors' rights to proceed against Obligor for reimbursement, including without limitation, any loss of rights Guarantors may suffer by reason of any law limiting, qualifying or dischargi.ng the Obligation; (c) any disability or other defense of Obligor, of any other guarantor, or of any other person, or by reason of the cessation of Obligor'S liability from any cause whatsoever, other than payment in full in legal tender, of the Obli.gation; (d) any right to claim discharge of the Obligation on the basis of unjustified impairment of any collateral for the Obligation; (e) any statute of limitations, if at any time any action or suit brought by Obligee against Guarantors is commenced there is -6- outstanding Obligation of Obligor to Obligee which is not barred by any applicable statute of limitations; or (f) any dofenses given to guarantors at law or in equity other than actual payment Ilnd performance of the obligation. If payment is made by Obligor, whether voluntarily or otherwise, or by any third party, on the obligation and thereafter Obligor is forced to remit the amount of that payment to obligor's trustee in bankruptcy or to any similar person under any federal or state bankruptcy law or law fot the relief of debtors, the obligation sh~ll be considered unpaid for the purpose of enforcement of this Guaranty. Guarantors further waive and agree not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand, reooupment or similar rights, whether such claim, demand or right may be asserted by the obligor, the Guarantors, or both. GUARANTORS' UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantors warrant and agree that each of the waivors set forth above is made with Guarantors' full knowledge 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. SUBORDINATION OF OBLIGOR'S DEBTS TO GUARANTORS. Guarantors agree that the Obligation of obligor to Obligee, shall be prior to any claim that Guarantors may now have or hereafter acquire -7- against obligor, whether or not Obligor becomes insolvent. Guarantors hereby expressly subordinate any claim Guarantors may have against Obligor, upon any account whatsoever, to any claim that Obligee may now or hereafter have against Obligor. In the event of insolvency and consequent liquidation of the assets of Obligor, through bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, ~r otherwise, the assets of Obligor applicable to the payment of the claims of both Obligee and Guarantors shall be paid to Obligee and shall be first applied by Obligee to the Obligation of Obligor to Obligee. Guarant.ors do hereby assign to Obligee all claims which they or either of them may have or acquire against Obligor or against any assignee or trustee in bankruptcy of Obligor; provided, however, that such assignment shall be effective only for the purpose of assuring to Obligee full payment in legal tender of the Obligation. If Obligee so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Obligor to Guarantors shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Obligee. Guarantors agree, and Obligee hereby is authorized, in the name of Guarantors, from time to time to execute and file financing statements and continuation statements and to execute such other documents and to take such other actions as Obligee deems necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty. CONFESSION OF JUDGMENT. Guarantors hereby irrevocably -8- authorize and empower any attorney or the Prothonotary or Clerk of any Court in the Commonwealth of Pennsylvania, or elsewhere, to appear at any time for Guarantors, and with or wi.thout complaint filed, as of any term, confess or enter judgment against Guarantors for the entire principal balance of this Guaranty and all accrued interest, together with costs of suit, and an attorney's commission of fifteen percent (15%) of the unpaid principal balance and accrued interest for collection, but in any event not less than Five Hundred Dollars ($500); 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 Guarantors 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. The authority granted in this Guaranty to confess jUdgment shall not be limited to any prior default by Guarantors or Obligor, but may be exercised by Obligee to protect and preserve Obligee's rights against Guarantors. MISCELLANEOUS PROVISIONS. The following miscellaneous provisi.ons a,re a part of this Guaranty: Amendments. This Guaranty constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No alteration 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 -9- amendment. ~pplia.bl. Law. This Guaranty has been delivered to Obligee and accepted by Obligee in the Commonwealth of Pennsylvania. If there is a lawsuit, Guarantors agree upon Obligee's request to submit to the jurisdiction of the courts of CUMBERLAND County, Commonwealth of Pennsylvania. Obligee and Guarantors hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Obligee or Guarantors against the other. This Guaranty shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Attorney's Feesi Expenses. Guarantors agree to pay upon demand all of Obligee's costs and expenses, including attorneys' fees and Obllgee's legal expenses, incurred in connection with the enforcement of this Guaranty. Obligee may pay someone else to help enforce this Guaranty, and Guarantors shall pay the costs and expenses of such enforcement. Costs and expenses include Obligee's attorneys' fees 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 collection services. Guarantors also shall pay all court costs and such additional fees as may be -10- directed by the court. Notio... All notices required to be given by either party to the other under this Guaranty shall be in writing and shall be effective when actually delivered or when deposited with a nationally reoognized overnight cour.J.er, or when deposited in the United states mail, first olass 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. For notice purposes, Guarantors agree to keep Obligee informed at all times of Guarantors' current address or addresses. Interpretation. The words "Guarantors", "Obligor" and "Obligee" include the heirs, successors, assigns and transferees of each of them. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the provisions of this Guaranty. If a court of competent jurisdiction finds any provision of this Guaranty to be invalid or unenforceable as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances, and all provisions of this Guaranty in all other respects shall remain valid and enforceable. If any one or more of Obligor or Guarantors are corporations -11- or partnerships, it is not necessary for Obligee to inquire into the powers of Obligor or Guarantors or of the officers, directors, partners, or agents acting or purporting to act on their behalf, and any Obligation made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty. Waiver. Obligee shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and signed by Obligee. No delay or omission on the part of Obligee in exercising any right shall operate as a waiver of such right or any other right. A waiver by Obligee of a provision of this Guaranty shall not prejUdice or constitute a waiver of Obligee's right otherwise to demand strict compli.ance with that provision ot any other provision of this Guaranty. No prior waiver by Obligee, nor any course of dealing between Obligee and Guarantors shall constitute a waiver of any of Obligee's rights or of any of Guarantors' obligations as to any fut.ure tT.'ansactions. Whenever the consent of Obligee is required under this Guaranty, the granting of such consent by Obligee in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Obligee. -12- EXPLANATION OF RIGHTS (Full Confession) A. I/we, the undersigned Guarantors, clearly and specifically understand that by signing the above Guaranty dated November , 1997, in the amount of One Hundred Fifty Thousand and NO/100 ($150,000.00) Dollars in favor of W. WAYDE KELLY which contains a Confession of JUdgment clause: 1. I/we am/are authorizing W. WAYDE KELLY, Obligee, to enter a judgment against me/us in his/her favor which will give the Obligee a lien upon any real estate which I/we may own, including our home and personal residence; 2. I/we give up the right to any notice or opportunity to be heard on the entry of said judgment on the record of the court; 3. I/we agree that W. WAYDE KELLY can enter this judgment without any proof of non~payment or other default on my/our part; 4. I/we will subject all of my/our property, both personal property and real estate, to execution (and She~iff's sale) pursuant to this jUdgment, prior to proof of non-payment or other default on my/our part; 5. I/we will be unable to challenge such judgment, should the Obligee enter it, except by a proceeding to open or strike the judgment; and that such a proceeding will result in attorney's fees and costs which I/we will have to pay. B. I/we know and understand that it is the Confession of Judgment cll.\use in the above-described Guaranty which givea -14- Obligee the rights enumerated in sub-paragraphs 1 throuqh 5 of paragraph ^ above. IF I/Wt DO NOT SIGN THE ABOVE GUARANTY WHICH CONTAINS A CONFESSION OF JUDGMENT CLAUSE, I/WE UNDERSTAND 1'HAT I/WE WOULD HAVE THE FOLLOWING: 1. The right to have notice and an opportunity to be heard prior to judgment; 2. The right to have the burden of proving default rest upon the Obligee before my/our property could be exposed to execution; 3. The right to avoid the additional expense of attorney's fees and costs incident to opening or striking off a confessed judqment. C. Fully and completely understanding these rights which I/we and each ,of us have prior to signing the above-described Guaranty and clearly aware that these rights will be given up, waived, relinquished and abandoned if I/we sign said Guaranty, I/we nevertheless freely and voluntarily choose to sign said Guaranty, my/our intention being to give up, waive, relinquish and abandon my/our known rights (as described in paragraph B above) and subject myself/ourselves to the circumstances described in paragraph A above. D~ Each of the undersigned hereby certifies that (he) (she) signatories to the foregoing Guaranty dated on the day of November, 1997, in favor of W. WAYDE KELLY whioh has a -15- PROMISSORY JUDGMENT NOTt $150,000.00 November /0 , 1997 On demand after date, KLP EN'l'ERPRISES, INC., the undex'siqned Maker, hereby promises to pay to W. WAYDE KELLY, or his assigns, the sum of One Hundred Fifty Thousand and NO/100 ($150,000.00) DOllars, without defalcation, value received, with interest at the rate of fourteen per centum (14%) per annum from the date hereof, said interest to be paid monthly on the lOth day of each calendar month, the first such payment to be due and payable on December 10, 1997. In addition to the foregoing, Maker promises and agrees to pay the sum of $150.00 as a late charge for each monthly installment of interest which remains unpaid more than five (5) calendar days after its due date aforesaid; said charge being as liquidated damages in lieu of actual damages and not as a penalty. And further, said Maker does hereby authorize and empower the Prothonotary or any attorney of any court of record of Pennsylvania or elsewhere at any time or times and without default to appear for and enter jUdgment against it for the above principal sum and interest, with costs of the action, with or without declaration or complaint, release of all errors, without stay of execution, and with fifteen per centum (15%) added for collection fees; and said Maker also waives the right of inquisition on any real estate which may be levied upon to coll~ct the obligations evidenced by this Note and it voluntarily condemns the same and authorizes the Prothonotary to enter said EXf/I B IT II W. WAYDE KELLY, Plaintiff VB. IN THE OOURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-2178 KEITH L. PLASTERER, et al, Defendants CIVIL ACTION - LAW ER~PE TO SATISFY JUDGMEMT TO: Prothonotary of Cumberland County Please cause the judgment in the above captioned matter to be satisfied. SNELBAK R, BRENNEMAN & SPARE, P.C. Keith o. Brenneman, Esquire 44 West Main street Mechanicsburg, PA 17055-0318 Attorneys for W. Wayde Kelly, Plaintiff By Dated: December 28, 1999