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HomeMy WebLinkAbout98-06613 ) ) ~' ~ ~ J ~ \,- \l ~ ~ ~ \l :::::: " C) t .,., '~ y.: ...... . .:::l , C'. -.J , ~' "" . " ~, ~. \ G" ~ ,,0 <: ,'" ::;:;~~ ... ... g 0 ~ ~ ~ t:' ";';;;F~ .....~ =:9i :::~g ... = ~ c ~ . '" ... s ... ... l= '" n :l: :;; ~ ~ ~ ;. c ;! . c ~ ""3i s ~ a lI:' (") > ... :l: 0 0 ;z ,. r> ~ x0p ?tJ . ,-,,^ i 7""--. , ~ I ~ c8 "" ~ L",f' " ~ UJ " ""> <;. ~ ~ ,y ~ 0 -~ ., ~I (,J\----' \,', ,! . l'J' ~ I\HUeE SIIEU.ENIIEH(;ER. IIAHRY SIJEllENIIEIHiER, and VJn(;JNJA SJ IEllENIIEIHiEH I'laintiffs : INTIIE('11UHTOl't:tIM,\((IN PI.EAS : CUMIIEltLANI> COUNTY, : I'EN:'IJSYLVANJA v, : NO.: '/ j'. (.. {, /3 C",:t' 7'7:._ HONAlD 1', NOT/' and CAROL A, NEITZ, Dcfl'lIll,Ull S : CIVIl. ACTION - LAW COMPLAINT AND NOW mme Plaintiffs, BRUCE SHELLENBERGER, BARRY SHELLENBERGER and VIRGINIA SHELLENBERGER, by and through their attorney, Steven j. Sehiffman, Esquire. and the law IInll ofSerratclli, Schiffman. Brown & Calhoon, PC, and in support of this Complailll. avers the following: I. Plaillliffs arc BRUCE SHELLENBERGER an adult individual currentlv residing at 453 Rich Valley Drive. Carlisle. Cumberland County. Pennsylvania. 17013. and BARRY SHELLENBERGER and VIRGINIA SHELLENBERGER, adult individuals currently residing at 20 I SOlllh Locust Street. Mechanicsburg. Cumberland County, Pennsylvania. 17055. 2, Defendants arc RONALD p, NOTT and CAROL A. NEITZ, adult individuals with a current mailing address of 105 Mountain Street. Summerdale. Cumberland COUnty. Pennsylvania. 17093, :3, TIll' Dl'fl'lIllalll s Wl'rl' ohli~ors to \',11.11.. Jill'. h\' \'in lIl' of a l'l'naill prOl1liSl' allll a~reemel1l made 011 h'hruary I, I <)l)(). -I The certain promisl' alld a~rl'l'l1Il'lIt 1ll'IWI'I'1I \',11,11.. IlIl'. alld the Defendants was reduced to writill~, A true and corrl'!'1 cop\' of lhe wrilin~ appl'ars as "Exhibit A" attached hl'reto, 5. The writin~ of "Exhihit A" is a Promissor\' is:Oll', whereill Ihl' I kfclldallls promised to pay their dehl to \',11,11.. Inl'. in rl'gular l1Iollthly inSlalll1ll'nls \l'ith rl'naill interest onlhe I st of each momh be~inning March I, I I) <)() , and cOlltinuin~ for sixty (()O) consecutive momhs or umil the debt was repaid. 6. The Note and obligatioll were assi~ned to PlaimilTs by V.II.lI., Ine. on ^U~lIS1 I (), Il)l)(), and recorded November 2(), I <)l)() in Miscellaneous lIook :3<)(), Pa~e 5:34. 7. Said Note was eXlended by a~reement dated February I, 1 <)l)5 for an additional sixty month tenn SO lhat any remaining indebtedness, ifnot paid sooner, was due and payable February I, 2()()O, ^ copy of said agreell1l:1l1 is allarhed herelo as "Exhibit II", H, The Promissory Note is secured by a Mortgage on various properties located in Cumberland Counly, Pennsylvania. 2 , " I), Ikfelldallts are liahle 10 till' Plailltiff 1111 the Note idelltil'it'd Illore panicularly in paragraph fiye alld all ached hl'relo as Exhihit "A", Said Defelldallts agn'l'd 10 make paymel1\s to Plaintiff in accordanl'l' \Vit h I Ill' said Agreellll'nt, 10. The Defendants arc in default on lhe said Promissory Note hl'GIUSe Ihey have f:liled to make any monthly paymellls since September I, I ~~5. II. The el1\ire principal amOUIll outstanding has been accelerated, The principal and accrued il1\erest owed as of December I, I ~~H is as follows: Principal Interest (to 12/1/98) TOTAL $142,150.79 $ 4.429.40 $146,580,19 WHEREFORE,l'laim ills demand judgmenl agaillsl Defelldanl s for I he 101 al Stllll of $146,580.1~, plus fees and costs 10 be added, Respectfully suhmilled, Daled: 11'IZ,C('{ L\lIO,\IE\L1SA\I'ETITION\SIIELLENB.cO~1 SERRATELLI, SCHIFFMAN, BROWN /j&.,cAI,.I-h ~' PC , /[1 ! _______. ,. . Y, n / /G.... ''l./~ ~_/ I Steven J. Schiffman, Esquire LD. No.: 2548H Suite 20 I, 20HO Linglesto\Vn Road Harrisburg, PA 17110 (717) 540-~ 170 AttorIleys for Plaintiffs I' ;; '. .~ FAX 717-n2-~77~ TEL: rk,: 05 93 9:17 No,003 P.02 , .' " MWW\tm\583 90-01-25 PROHISSORY NOTE $150,000.00 /?Ivt<q"" I , 1990 . Ronald P. Nott and Carol A. Neitz, individuals residing at 105 Mountain Road, Summerdale, PennSYlvania 17093 (collectively the "Hakors"), hereby promise to pay to the order of V.B.B., Inc., a PGnnsylvania corporation, with an address at 100 North Locust Lane, Mechanicsburg, Pennsylvania 17055 (the "Payee"). in lawful money of tho United states of America, and at such place as Payee may designate, the sum of One Hundred Fifty Thousand Dollars ($150,000,00). Interest on outstanding principal shall accrue at the rate of Eleven Percent (11%) per annum. On~h~/~ ~, 1990, and on the /sr- day of each month thereafter for a period of sixty (60) consecutive months, Maker shall pay to Payee equal consecutive monthly installments of One Thousand Four Hundred Twenty-Eight Dollars and Fifty Cents ($1, ~!l. 50) , based upon a thirty (30) year amortization period. On/'p~qa~q 1, 1995, Maker shall make a lump sum payment of One Hl.Indrnd FortY-Five Thousand Seven Hundred Forty-Five Dollars and Seventy-Eight cents ($145,745.78). The Payee shall have the option of extending the said sixty (60) month term of this Note for an additional sixty (60) month term (the "Renewal Term"), All other terms of this Note shall remain unchanged except that (A) the rate of interest shall be' fixed at one-half percent (1/2%) below the prime rate of interest offered by Hamilton Bank (or its successor) on the first day of the Renewal Term; and (B) Maker shall make monthly payments of principal and interest based on a twenty (20) year amortization of the remaining One Hundred Forty-Five Thousand Seven Hundred Forty-Five Dollars and Seventy-Eight Cents ($145,745.78): and JShall pay all outstanding principal and accrued interest on /t:"'~/'~tf/'" I , 2000. IT Prepayment of the outstanding principal shall have the following charges applied: Year 1 - 5% (five percent of the outstanding balance) Year 2 -4% (four percent of the outstanding balance) Year 3 - 3% (three percent of the outstanding balance) Year 4 - 2% (two percent of the outstanding balance) Year 5 -1% (one percent of the outstanding balance) No prepayment shall affect the obligation to continue regular installments until all the obligations have been pai.d in full. ThG same charges shall be applicable during the Renewal Term. '., FAx 717-23<-.177.1 TEL: tlo'} 05 98 9:17 No,003 P,03 This Note may be assigned or pledged by tho Payee, and the Makers agree to be directly and personally obligated hereunder to any assignee or pledgee of this Note. 'l'he payment of this Note is secured by a socurity interest in real property owned by Maker as more tUlly set forth in the Asset Purchase Agreement between Payee and the Maker, dated October 23, 1989, as amended (tho "Agreement"). (a) The Maker or CAN, Inc. fails to pay any and when due hereunder, whether upon stated acceleration, or otherwise within ten days of said or under any other instrument given to or any with Payee. (b) (i) The Maker or CAN, Inc. becomes insolvent, or generally fails to pay, or is generally unable to pay, or admits in writing its inability to pay, its debts as they become due or appl ies for, consents to, or acquiesces in, the appointment of a trustee, receiver or other custodian for the Maker or a substantial part of its property, or makes a general assignment for the benefit of creditors; amount as maturity, due date, agreement An event of default ("Event of Default") under this Note shall be doemed, at the election of the Payee, to exist if any one or more of the following events occurs and is continuing; whatever the reason therefor: (ii) Any bankruptcy, reorganization, debt arrangement, or other case or proceeding under. any state or federal bankruptcy or insolvency law, or any diSsolution or liquidation proceeding is commenced by the Maker or CAN, Inc. and such proceeding remains undismissecl or unbonded thirty days after commencement thereof; or (Hi) The authorize, foregoing. (c) (i) Any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any state or federal bankruptcy or insolvency law, or any dissolution or liqUidation prOCeeding, is inVOluntarily commenced against or in respect of the Maker or CAN, Inc. or any order for relief. is entered in any such proceeding. Maker or CAN, Inc. takes any action to or in furtherance Of, any of the 2 FAX .717-232-J774 TEL: tlov 18 98 10:02 No.003 P,02 (H) ^ trustee, receivor. or other custodian, except tor Payee, in appointed for tho Makor or CAN, Inc. or a substantial part at its property. (d) The validity, binding nature, or enforcei\bility of any material tern or provision hereof or the mortgage (or mortqaqes) oecuring it is di!lputecl by, on behalf of:, or in the right or name of the Maker or II matorilll teJ:'m or provision of any ouch document sh~ll be found or declared to be invalid, avoidable, or non-enforceable by any court of competent jurisdiction. (e) If theJ:'e shall occur any material default or Event of Default under, or as defined in, the said Agreemont or tho collateral documents given to Payee pursuant theJ:'eto. (f) A final jUdgment, OJ:' jUdgments, is entered or an order, or orders, of any judicial authority or goveJ:'nmental agency is issued against the Maker for payment of money, which jUdgment(s) or order(s) singUlarlY or in the aggregate, exceed Ten Thousand Dollars ($10,000.00) outstanding at anyone time; or for injunctive or declaratory relief that would have a material adVerse effect on the ability of the Maker to conduct its business, and twenty (20) calendar days have expired since the entry of said judqment(s) or issuance of said order(s) I unless the Maker has delivered to the Payee evidence reasonably satisfactory to the Payee that (i) all action to enforce said jUdgment(s) or order(s) have been stayed pending appeal therefrom and the Maker is diligently pursuing said appeal, or (ii) to the extent that enforcement thereof is not taxed, the Maker has bonded, obtained adequate insurance on, or provided additional security to cover all damages and expenses, including attorneys' fees and costs, Which could be reasonably expected to be suffered by the Payee as a result of said judgment(s) or order(s). (g) Any permit, approval or agreement obtainec;l from or issued by any governmental authority having juriSdiction ovar the bar\restaurant located in Enola, Pennsylvania and known as "Johnnie's" (the "Business") is withdrawn, cancelled, terminated, or modified to the material detriment of the Maker or the Business unless Maker reinstates or confirms in all respects the permit, approval or agreement previOUSly in effect within a period of five (5) days thereafter. 3 RECEIVED TIMEIIOV. 12. IO:56AM FAX 717-232~4774 TEL: flo'J 18 98 10:03 No,003 P,03 Upon the occurrence of anyone or more Events of Default: (a) The unpaid principal balanco of all loans, all interest and fees accrued and unpaid thereon, and all other amount!:: and obligations payable by the Maker under the lIgrecmont and the other loan documents Ghall immediately and automatically be accelerated and becomo due and payable in full, all without protest, presentment, demand, or further notice of any kind to the Maker or to any Person, all of which are expressly waived by the Maker: and/or (b) Payee may proceed to protect, exercise and onforce all of its rights and remedies under the Agreement and the other documents or otherwiee available at law or in equity. All rights or remedies of Payee set forth or otherwise existing are cumulative. THE FOLLOWING PARAGRAPH SETS FORTH 11 WARRANT OF AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST THE MAKER. IN GRANTING THIS WARRANT OF AUTHORITY TO CONFESS JUDGMENT AGAINST THE MAKER, THE MAKER HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY AND, ON THE ADVICE OF THE SEPARATE COUNSEL OF THE MAKER, UNCONDITIONALLY, WAIVES ANY AND ALL RIGHTS THE MAKER HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA AND TUE COMMONWEALTH OF PENNSYLVANIA. The Maker hereby irrevocably authorizes and empowers Payee, by its attorney, upon or after and on account of the occurrence of an Event of Default, to appear for the Maker and, without declaration or stay of execution, ~onfess and enter judgment against the Maker in favor of Payee in any juriSdiction in Which the Maker or any of its property is located, for all or any part of the obligations, together with costs of suit and collection fees (including reasonable attorneys' fees) with release of all errors and the right to issue execution forthwith. The Maker hereby waives and releases all relief erom any and all appraisement, stay or exemption law oe any state now in force or hereafter enacted. If a copy of this Note or the Agreement, verified by affidavit of Payee or a person on behalf of Payee, shall have been filed in such action, it shall not be necessary to file the original Note or Agreement as a warrant of attorney. This authority and power to appear for and confess and enter judgment against the Maker shall not be exhausted by the exercise thereof, and shall continue until the Obligations are fully paid, performed, discharged and satisfied. 4 I n, "hill FAX 717-232-4774 TEL: Ho'! 05 98 9:18 Ho,003 P.04 Maker shall pay the COAt of any revonue, tax or other stamps now or hereafter required by law at IIny time to be ilr.fixed to thin Note. If any taxes be imposed with rccpect to debts secured by mortgages or deeds of trust, or with respect to notes evidencing debts so secured, MakAr chall pay to the holdor hereof upon demand the amount of such taxes, and hereby waives any contrary provicions of any laws or rules of court now or hereafter in effect. Notwithstanding any provision contained herein, the total liability of Maker for payment of interest pursuant hereto shall not exceed the maximum amount of such interest permitted by law to be charged, collected or received from Maker, and if any payments by Maker include interest in excess of such maximum amount, Payee shall apply such excess to the reduction of the unpaid principal amount due pursuant hereto, or if none is due, such excess shall be refunded to Maker. Any such application or refund shall not cure or waive any Event of Default. In determining whether or not any interest payable under this Note exceeds the highest rate permitted by law, any non-principal payment (except payments specifically stated in this Note to be "interest"), including without limitation prepayment premiums and late charges, shall be deemed, to the extent permitted by applicable law, to be an expense, fee, premium, charge or penalty rather thlln interest. If any provision hereof if found by a cou~t of competent jurisdiction to be prohibited or unenforceable, it shall be ineffective only to the extent of such prohibition or unenforceability, and such prohibition or unenforceability shall not invalidate the balance of such provision to the extent it is not prohibited or unenforceable, nor invalidate the other provisions hereof, all of whiCh shall be liberally construed in favor of Payee in order to effect the provisions of the Note. The words "Payee" and "Maker" whenever herein shall be deemed and construed to include the SUccessors and assigns of Payee and Maker. occurring respective This Note Shall be governed by and construed according to the laws of the Commonwealth of Pennsylvania without reference to any Choice or conflict of law rules that might otherwise apply. If any payment on this Note becomes due and payable on a saturday, Sunday or other day on which commercial banks in Enola, PennsYlvania are unauthorized or required by law to close, the maturity thereof shall be extended to the next succeeding business day, and with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. 5 \'EIUFI<''\TIO:'\ I. Virginia Shellenbcrgcr, hcrehy slate that f alllthc I'lainlifTherein, The ('olllplaint has bccn revicwcd by mysclf and the filets sel forth in thc ('olllplaint arc truc and corrcct to thc best of my knowlcdge, inf(1I'Inalion and belief; and that this slatement is made subject to the pcnalties of IS Pa. C.S. Seclion 4')()4 relaling to unsworn fillsification to authorities, Dated: 11'12,q~'