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HomeMy WebLinkAbout03-1450IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION Plaintiff VS. CARLA D. SMITH Defendant. CONFESSION OF JUDGMENT $158,O97.38 1,418.49 15,951.59 $175,467.46 Donna M. Donaher, Esquire Attorney for PNC Bank, National Association Total Principal Debt Interest through 3/6/03 Attorney's Commission Pursuant to the authority granted in the Warrant of Attorney contained in the Guaranty, a copy of which is attached as Exhibit "A" to the Complaint filed in this action; and the Note, a copy of which is attached as Exhibit "B", the undersigned attorney hereby appears for Defendants and confesses judgment in favor of Plaintiff, PNC BANK, NATIONAL ASSOCIATION, and against Defendants, as follows: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION Plaintiff CIVIL DIVISION VS. CARLA D. SMITH Defendant. COMPLAINT IN CONFESSION OF JUDGMENT Filed on behalf of Plaintiff, PNC Bank, National Association Code: Counsel of Record for This Party: Donna M. Donaher, Esquire Pa. I.D. #53165 TUCKER ARENSBERG, P.C. Firm #287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 BANK FI:194016-1 000011-111726 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION Plaintiff VS. Defendant. CARLA D. SMITH COMPLAINT IN CONFESSION OF JUDGMENT comes the Plaintiff, PNC BANK, NATIONAL ASSOCIATION, formerly There has been no assignment of the Guaranty. Judgment has not been entered on the Guaranty in any jurisdiction against the 6. Defendant. AND NOW, Pittsburgh National Bank, by and through its counsel, Tucker Arensberg, P.C., and files this Complaint confessing judgment in its favor, stating as follows: 1. Plaintiff, PNC BANK, NATIONAL ASSOCIATION, ("PNCB"), is a national banking association organized and existing under the laws of the United States of America and a citizen of Pennsylvania, with its main office located at Fifth Avenue and Wood Street, Pittsburgh, Pennsylvania. 2. Defendant is Carla D. Smith whose last known address is 1008 Forbes Road, Carlisle, Pa 17013. 3. Defendant, on October 30, 1996, executed a Small Business Administration Guaranty ("Guaranty") and thereby guaranteed prompt and punctual payment of the indebtedness due under a certain U.S. Small Business Administration Note ("Note") between PNCB and J. K. Miller Corporation and Smith & Bowen, dated October 30, 1996. True and correct copies of the Guaranty and Note are attached hereto, incorporated herein and labeled, respectively, Exhibits "A" and "B". 4. By the Guaranty, Defendant promised to guarantee to pay Plaintiff the principal sum of $225,000 together with interest thereon in the manner provided by the Note. 7. The judgment by confession sought by PNCB in this Complaint is not being entered against a natural person in connection with a consumer credit transaction. 8. By Warrant of Attorney contained in the Guaranty, Defendant authorized entry of judgment by confession. 9. Pursuant to the Warrant of Attorney executed by Defendant, Defendant waived the benefit of all laws exempting real or personal property from execution. 10. Pursuant to the Warrant of Attorney contained in the Guaranty, judgment may now be entered against Defendant as payment on the Note was not made when due thereby creating an event of default under the Note and accelerating all amounts due thereunder. 11. Under the Guaranty, the following amounts are now due by Defendant to PNCB: Principal Debt Interest through 3/6/03 Attorney's Commission through Total 12. Under the terms of the commission of ten percent for collection. $158,097.38 1,418.49 15,951.59 $175,467.46 Guaranty, Defendant is liable to PNCB for attorney's WHEREFORE, Plaintiff, PNCB, demands that a judgment be entered against Defendant Carla D. Smith, as authorized in the Warrant of Attorney contained in the Guaranty, in the sum of $175,467.46 together with interest and costs of suit. TUCKER ARENSBERG, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 -2- OMB Approval No. 3245-0201 I SBA LOAFI NO. J GP9669953005PGH SMALL BUSINESS ADMINISTRATION (SBA) GUARANTY HE CONFEBBION OF JUDGMENT ON THE REVERBE BIDE ~ IB PART OF THIB OBLIGATION. "~n order to induce PNC Bank National Association ', (hereinafter caUed "kender") to make a ~oan or ($8A or other Lending ~nstitution) loans, or renew'a~ or extension thereof, to J. K. Miller Corporation~ a Pennsylvania ~_m~'mmt'a~nn · E. Bowen and. David E. smit , i d'.V,' a_l y. as. co- r ne - ' ' its suc -. (here,na~r c~eC~ l~&t~or ~), ,6ea~nders,gned~er'~t~Y ~l~ontd(t~n~]~'larjjnt~t~rLender, ' cessors and assigns, th~ due and punctual payment when due, whether by acceleration or otherwise, in accordance with the terms thereol, of the principal of and interest on and all other sums payable, or stated to be payable, with respect to the note of lhe Debtor, made by the Debtor to Lender, dated C--.k-Jr'~c ~ IclctG, ~. in the principal amount of $ 225,000.00 . with interest as set forth in the Note j:f,~-~~KJ~aXSuch note, and the interest thereon and all other, sums payable with respect thereto are hereinafter collec4ively called "Liabilities." As security for the performance of this guaranty the Undersigned hereby mortgages, pledges, assigns, transfers and delivers to Lender certain collateral (if any), listed in the schedule on the reverse side hereol. The term 'collateral" as used herein shall mean eny funds, guaranties, agreements or other property or rights or interests of any nature whatsoevei', or the proceeds thereof, which may have been, are, or hereafter may be, mortgaged, pledged, assigned, transferred or delivered directly or indirectly by or on behalf of the Debtor or the Undersigned or any other party lo Lender or to the holder of the atoresaid note of the Debtor, or which may have been, are, or hereafter may be held by any party as trustee or otherwise, as security. whether immediate or underlying, for the performance of this guaranty or the payment of the Liabilities or any of them or any security therelor. The Undersigned waives any notice of the incurring by the Debtor al any time of any of the Liabilities, and waives any and all presentment, demand, protest or notice ol dishonor, nonpayment, or other defaull with respect to any ol the Liabilities and any obligation of any party at any time comprised in the collateral. The Undersigned hereby grants lo Lender full power, in its uncontrolled discretion and without notice to the undersigned, but subject Io the provisions ol any agreement between the Debtor or any other party and Lender at the time in force, to deal in any manner with the Liabilities and the collateral, including, but without limiting the generality ot the foregoing, the following powers: (a) To modify or otherwise change any lerms of all or any part of Ihe Liabilities or tnB rate of interest thereon (but nol lo increase the principal amount of the note of the Debtor to Lender), to grant any extension or renewaJ thereof and any other ,ndulgence wilh respect thereto, and to effect any release, compromise or settlement wilh respect therelo; (b) To enter into any agreement of Iorbearance with respect to all or any part of the Liabilities, or with respect to all or any part o! the collateral, and to change the terms of any such agreement: (c) To forbear from calling lot additional collateral lo secure any of the Liabilities or Io secure any obligation comprised in the collateral; (d) To consent to the substitution, exchange, or.release of all or any part ot the collateral, whether or not lhe collateral, it any. received by Lender upon any such substitution, exchange, or release shall be of the 'same or of a different character or value than the collateral surrendered by Lender; (e) In 1he evenl of Ihe nonpayment when due, whether by acceleration or otherwise, of any of the Liabilities, or in the evenl ol default in the performance ot anY obligation comprised in the collateral, lo realize on the collateral or any part thereof, as a whole or in such parcels or subdivided interests as Lender may elect, at any public or private sale or sales, for cash or on credit or for future delivery, without demand, advertisement or notice of the time or place of sale or any adjournment thereof (the Undersigned hereby waiving any such demand, advertisemenl and notice to the extent permitted by law), or by loreclosure or otherwise, or to forbear from realizing thereon, all as Lender in its uncontrolled discretion may deem proper, and Io purchase all or any part of the collateral lot its own account at any such sale or foreclosure, such powers to be exercised only Io lhe extent permitted by law. not be required, prior to any such demand on, or paym, · ' its rights or remedies against the Debtor or others with its rights or remedies with respect to any part of the ~ respect to the Liabilities or the collateral unless and un The obligations of the Undersigned hereunder shall not be released, discharged or in any way affected, nor shall lhe Undersigned have any rights or recourse against Lender, by reason of any action Lender may take or omit to take under the foregoing powers. In case the Debtor shall fail to pay all or any part of ,,: I.i~,hilitie~ whejq ~uej whether by acceleration or otherwise, according lo Ihe jr, will pay to Lender the amount due and unpaid by thetermSDebtor°f saidas note,aforesaid,the Undersigned.in like mannerimmediatelYas it such amo~Up°n EXHIBIT ~primary obligation of the Undersigned. Lender shall "" j~ ~l Jlake any demand upon or pursue or exhaust anyol ~ny ot the Liabilities, or to pursue or exhaust any o~ ~hall have no right Of subrogation whatsoever wily ~ full payment of all the Liabilities. 7heobligalions of the Undersigned hereunder, and the rights ol Lender in the collateral, shall not be released, discharged or in any way affected, nor shah the Undersigned have any rights against Lender: by reason of the lact that any of the collateral may be in default al the time ol acceptance lhereol by Lender or later: nor by reason ol lhe fact IhaI a valid lien in any ol the collateral may not be conveyed to, or crealed in lavor o1. Lender; nor by reason ol the lact Ihat any ol Ihe collatl=.ral may be subject to equities or delenses or claims in lavor ol olhers or may be invalid or delective in any way; nor by reason of lhe lact that any ol the Liabilities may be invalid for any reason whatsoever; nor by reason ol the lact that the value ol any ol the collateral, or the financial condition ol the Debtor or of any obligor under or guaranlor of any of the collaleral, may not have been correclly estimaled o~ may have changed or may hereafter change; nor by reason ol any deterioration, waste, or loss by tire, theft, or olherwise ol any of the collaleral, unless such deterioration, wasle, or loss be caused by the willlul act or willlul lailure to act ol Lender. The Undersigned agrees Io lurnish Lender, or the holder ol the aforesaid note ol the Debtor, upon demand, but not more often than semiannually, so long as any part ol the indebtedness under such note remains unpaid, a linancial statement setting Iorth, in reasonable detail, the assets, liabilities, and net worlh ol Ihe Undersigned. The Undersigned acknowledges and underslands Ihat il the Small Business Adminislralion (SBA) enters into, has entered into, or will enter into, a Guaranty Agreement, with Lender or any olher lending institulion, guaranleeing a portion of Deblor's Liabilities, lhe undersigned agrees Ihal il is not a coguaranlor with SBA and shall have no right ol contribution against SBA. The Undersigned tu.rther agrees thai all liabilily hereunder shall contir, ue notwithstanding payment by SBA under its Guaranly Agreement lo the olher lending institulion. The term "Undersigned" as used in this agreement shall mean the signer or signers of this agreement, and such signers, it more than one, shall be jointly and severally liable hereunder. The Undersigned lurther agrees that all liability hereunder shall continue nolwithstanding the incapacity, lack ol aulhorily, death, or disabilily of any one or more ol the Undersigned, and lhal any tailure by Lender or ils assigns Io lile or enlorce a claim against Ihe estate ol any of lhe Undersigned shall not operate to release any other of Ihe Undersigned Irom liability hereunder. The lailure ol any olher person to sign Ihis guaranty shall not release or affect the liability of any signer hereOl. FHE CONFESSION OF JUDGMENT BELOW IS PART.OF THIS OBLIGATION. NOTE.--Corporate guarantors must execute guaranly ~n corporale name. by duly authorized officer, and seal must be affixed and duly allesled; partnership guarantors musl execule guaranty ~n lirm name. togelher wdh signature ol a general partner. Formally executed guaranty is to be delivered at Ihe hme of di.~bursemenl OI loan (LIST COLLATERAL SECURING THE GUARANTY) THE UNDERSIGNED HEREBY AUTHORIZES LND EMPOWERS ~ ATTORNEY OR CLERK OF ANY COURT OF RECORD IN THE UNITED STATES OR ELSEWHERE TO APPPF2~R FOR ]~ND, WITH OR WITHOUT DECLARATION FILED, CONFESS JUDGMENTAGAINST THE UNDERSIGNED IN FAVOR OF TH~_~O~E~ STATED IN THE GU~Y ON THE REVERSE HEREOF,. OR ~ ASSIGNEE OR SUCCESS LENDER, AT ANY TERM, FOR THE FULL OR TOTAL AMOUNT AS SET FORTH IN THE GU]%I~%NTYv TOGETHER WITH /~LL "LIABILITIES" PROVIDED FOR THEREIN, WITH COSTS OF SUIT AND ATTORNEY'S COMMISSION OF TEN (10) PERCENT FOR COLLECTION; AND THE UNDERSIGNE= EXPRESSLY RELEASESALL ERRORS, WAIVES ALL STAY OF EXECUTION, RIGHTS OF INQUISITIO~ ~ EXTENSION UPON ANY LEVY UPON REAL ESTATE AND ALL EXEMPTION OF PROPERTY FR~ LEVY AND SALE UPON ANY EXECUTION HEREON, AND THE UNDERSIGNED EXPRESSLY AGREE_B_~_ CONDEMNATION]~NDEXPRESSLY RELINQUISHES ALL RIGHT~_~TO BENEFITS OR EXEMPTIONS UNDE~ ~ ~ ALL EXEMPTION L~WS NOW IN FORCE OR WH~~[Y~ERF-~FTER BE ENACTED. (SEAL D. b3 SBA FORM 148 (4-91) REF. SOP 70-50 USE 5-87 EDITION Small Business Adm~mstration (~~-'~/~'/~ NOTE $ 225,000. O0 (Datel SBA LOAN NUMBER ;. GP966995 30 05 PGH : Pittsburgh, Pennsylvania (Oily -,no Slalel For value received, the undersigned promises to pay to the order of PNC Bank, National Association at its office in the city of Pittsburgh ,State of Pennsylvania or at holder's option, at such other place as may be designatecl from time to time by the holder TNO HUNDRED TWENTY-FIVE THOUSAND AND 00/100 ........ dollars, (wine out amoumt set forth below with interest on unpaid principal computed from me date pt each advance to the undersigned at the rate adx ~L~XPayment to be made in Installments as follows: $225,000.00 with interest on the unpaid principal computed from the date of each advance, payable monthly beginning one (1) month from the date of this Note; installments of principal and interest in the amount of $2,490.68; payable monthly, beginning OI',TE (1) MONTH ts) from the date of this Note; provided, however, the amount of the installment may change in accordance with this Note. This is a variable interest rate loan in which the interest rate shall fluctuate in accordance with this Note. This base rate (hereinafter defined as the "Prime Rate" as published in the Wall Street Journal under "Money Rates") as of October 3, 1996 (date application submitted to SBA), was 8.25% per annum. The interest rate (spread) to be added to the base rate at beginning of each adjustment period shall be 1.25%. The initial interest rate is established on this loan at NENE AND T~REE TENT~S. PERCENT (9.30%). The interest rate on the Note shall increase or decrease by adding the interest rate (spread) to the base rate at the beginning of each · (continued on pa~oe ~ THE UNDERSIGNED HEREBY AUTHORIZES AND EMiPOWERS ANY ATTORNEY OR CLEla~K'-O~ COURT OF RECORD .IN THE UNITED STATES OR ELSEWHERE TO 'APZ~I~P.3LR FOR AND, WITH OR WITHOUT DEC~TION FILED, CONFESS JUDG~ A(IlklNBT THE UNDERSIGNED IN FA¥OR OF THE HOLDER, ASSIGNEE OR SUCCESSOR OF HOLDER OF THIS NOTE, AT AN]f TERM, FOR THE FULL OR TOTAL AMOUNT OF T]IIS NOTE, TOGETHER WITH ALL "3iNDEBTEDNESS" PROVIDED FOR THEREIN, WITH COSTS OF SUIT AND ATTORNEY'S COMMISSION OF TEN (10) PERCENT FOR COLLECTiOn; A~-D ~ u-'HDE~SIGNED EXl:RESSLY ~-EA~ES ALL ERRORS, W]LIFES ~?-?. STAY OF EXECUTION, RIGHTS OF INQUISITION AND EXTENSION U~ON A3U/ LEVY U~ON REAL ESTATE AND ALL EIEH]~TION OF PROPERTY FROM LE1;WZ AND SALE UPON ANX EXECUTION HEREON~ AND T]IE UNDERSIGNED EXTRESSLY AGREES TO COND3~W~l%TION AND EXPRESSLY RELINQUISHES /~-?. RIGHTS TO BENEFITS OR ~-X3~W~TIONS UNDER ANX AND /~?-?. EX]~H~TION LAWS NON IN FORCE OR WHICH HAY HEREAFTER BE ENACTED. If this Note contains a fluctuating interest rate, the notice provision is not a pre-condition for fluctuation (which shall take place regardless of notice). Payment of any installment of principal or interest owing on this Note may be made prior to the maturity date thereof without penalty. Borrower shall provide lender with written notice of intent to prepay part or all of this loan at least three (3} weeks prior to the anticipated prepayment clare. A prepayment is any payment made ahead of schedule that exceeds twenty (20) per- cent of the then outstanding principal balance. If borrower makes a prepayment and fails to give at least three weeks advance notice of intent to prepay, then, notwithstanding any other pr'____._ note or other document, borrower shall be required to pay lender three weeks interest on the unpaid princ~ such prepayment. SBA Form 147 (5--8T) Pre'~nous eOitions ~e Pag~ I 'i:he term "Indebtedness" as used herein shall mean the indebtedness evidenced by this Note. mclud,ng principal interest, dna · expenses, whether contingent, now due or i3ereatter to become clue' ancl whether heretofore or contemporaneously herewith or here- after contracted. The term "Collateral" as used in this Note shall mean any tunas, guaranties, or nlher property or rights lherem of any nature whatsoever or the proceeds thereof which may have been. are. or hereafter may be, hypothecated, directly or indirectly by the undersigned or other's, in connection with, or as security for, the Indebtedness or any part thereof· The.Collateral. and each part thereof, shall secure the Indebtedness and each part thereof. The covenants and conditions set forth or referred to ~n any and all in. struments of hypothecation constituting the Collateral are hereby incorporated in this Note as covenants and condllions of the under- signed with the same force and effect as though such covenants and conditions were fully set forth herren. The indebtedness shall immediately become due and payable, without notice or demand, upon the appointment of a receiver or · liquidator, whether voluntary or involuntary, for the undersigned or for any of its property, or upon the filing of a Petition by or against the undersigned under the provisions of any State insolvency law or under the provisions ct the Bankruptcy Reform Act of 1978. as amended, or upon the making by the undersigned of an assignment for the oenefit of its creditors. Holder is author,zecl lo declare all or any part of the Indebtedness immediately due and payable upon the happening of any of the following events: (1) Failure to pay any part of the indebtedness when due; (2) nonperformance by the undersigned of any agreemenl w~th, or any condition ~mposed by. Holder or Small Business Administration (hereinafter called "SBA"), with respect to the Indebtedness; (3) Holder's discovery of the undersigned's failure In any application of the undersigned to Holder or SBA lo disclose any fact deemed by Holder lo be material or of the making therein or in any of the said agreements, or in any affidavit or other documents submitted in connection with said appli. cation or the indebtedness, of any misrepresentation by, on behalf of, or for the benefit of the undersigned: (4) the reorganization (other than a reorganization pursuant to .any of the provisions of the Bankruptcy Reform Act of 1978, as amended) or merger or con- solidation of the undersigned (or the making of any agreement therefor) without the prior whiten consent of Holder: (5) lhe under- signed's failure duly lo account, to Holder's satisfaction, at such time or times as Holder may require, for any of the Collaleral. or bro- ceeds thereof, coming into the control of the undersigned; or (6) the ~nst~tu(ion of any suit affecting lhe undersigned deemed by Holder to affect adversely its interest hereunder in the Collateral or otherwise. Hotder's failure Io exerc,se ~ls rights under tn~s paragraph shall nol constitute a waiver thereof. Upon the nonpayment of the Indebtedness. or any part thereof, when clue. whether by acceleration or otherwise. Holder is em- powered to sell. assign, and deliver the whole or any pan of the Collateral at public or private sale. without demand, aavenlsement or notice of the time or place of sale or of any adjournment thereof, which are hereby expressly waived. After deductmo all expenses ,n- cidental to or arising from such sale or sales, Holder may apply the residue of the proceeds thereof lo the payment ~3f the Indebted. ness, as it shall deem proper, returning the excess, if any, to the undersigned. The un(3ers~gned hereby wa,ves all right of redemption or appraisement whether before or after sale. ' Holder is further empowered to collect or cause to be collected or otherwise to be convened into money all or any part of the . Collateral, by suit or otherwise, and to surrender, compromise, release, renew, extencl, exchange, or substitute any item of the Col- lateral in transactions with the unclersigned or any third'party, irrespective of any ass~gnmen! thereof by the underslgne(3, anti withoul prior notice to or consent of the undersigned or any assignee. Whenever any item of the Collateral shall not be paid when due. or otherwise shall be in default, whether or not the indebtedness, or any part thereof, has become due. Holder shall have the same rights and powers with respect to such item of the Collateral 'as are granted in this paragraph in case of nonpaymen( of the Indebte(3ness, or any part thereof, when oue. None of the rights, remedies, privileges, or powers of Holder expressly provided for hereto snail be ex- clusive, but each of them shall be cumulative with and in addition to every other right, remedy, privilege, and power now or hereafter ex~sting in favor of Holder, whether at law or equity, by statute or otherwise. The underslgne(: agrees to take all necessary steps to administer, suDervlse, preserve, an(3 protect the Collateral: an(3 reoardless of any action laken Dy Hol(3er, there shall be no duty upon Holder m th~s respect. The unOersloned shall pay all exoenses of a~y nature, whether incurred in or out of COUrt. and whether recurred before or aher th~s Note shal~' become due at its maturity date or otherwise, including but not limited to reasonable attorney's fees an(3 costs, which Holder may deem necessary or proper m connection with the satisfaction ct the Indebtedness or the administration, supervision, preservation, protection of (including, Dui not limited to, the maintenance of adequate insurance) or the realization ,-'pon ~he Collate;aL Holder is AuthoriZed tO pay at any t~me and from time to time any or all of such expenses, add the amount of such payment to the amount of the Indebtedness, and charge interest thereon at the rate specified hereto with respect to the principal amount of this Note. The security rights of Holder and its assigns hereunder shall not De ~mpaired by Hotder's sale, hypothecation or rehypothecation of any note of the uncierslgnecl or any item of the Collateral, or by any m(3ulgence, including Dui not limited to (a) any renewal, exten- sion, or modification which Holder may grant with respect to the Indebtedness or any part thereof, or (b) any surrender, compromise, release, renewal, extension, eychange, or substitution which Holder may grant in respect of the Collateral. or (c) any indulgence granted in respect of any endorser, guarantor, or surety. The purchaser, assignee, transferee, or pledgee of this Note. the Collateral, and guaranty, and any other document (or any of them), sold. assigned, transferred, Dle(3ge(3. or repledgecl, shall lorthwith.become vested with and entitled to exercise all the powers and rights given by this Note an(3 all appt,cahons of the unders~gnecl to Holder or SBA, as if said purchaser, assignee, .t[ansferee, or pledgee were originally named as Payee m this Note and in saicl application or apptlcat~ons. Page 2 This DrOmlSSOr¥. hole ~S ?yen lo secure a loan which SBA ~s maKino or m wmcn ~; ~s DartlCiDallnQ ano. pursuant to Part 101 of the Rules ancl Regulations ot SBA [13 C.F.R. 101.1fcl)), th~$ mstrumen! ~s tO ce construea ano [when SBA is tne Hol0er or a party m ~nterest) enlorceo in accoroance wlln a~Dl~cable Fe0eral law. · - (continued from page l) adjustment period. Each adjustment period shall be thirty-six months beginning the first business day following the prior adjustment period. At said adjustment period, the remaining monthly installments shall change to reamortize the outstanding balance of principal and interest. The balance of principal and interest and all other indebtedness is due and payable on or before THIRTEEN (13) YEAR(s) from the date of this Note; provided further than any installment shall be applied first to interest accrued to date ofracoi? nf cnirl i-~*a!!ment and the balance; if any; to principal; balance at maturity. The holder of the Note shall give written notice to the undersigned of each increase or decrease in the interest rate within ..thirty days after the effective date of each rate adjustment; however, the fluctuating of the interest rate is not contingent on whether the notice is giv~rl. If the Borrower shall be in default in installment on the indebtedness as the SBA purchases its guaranteed portion of said indebtedness, the rate of interest on bo'th the guaranteed and unguaranteed portion shall become fixed at the rate in effect as of the initial date of default. If the Borrower shall not be in default in installment when SBA purchases its guaranteed portion, the rate of interest on both the guaranteed and unguaranteed portion herein shall be fixed at the rate in effect as of the date of purchase by, SBA. "THIS IS A JOINT AND SEVERAL OBLIGATION" By:J' I J.K. MiI,LER CORPORATIGN,. Pennsylvania Corporation · Curtis E. Bowen, President CURTIS E. BROWN and DAVID E. SMITH, individually, and as co-partners t/a Smith & Bowen Nme.---CorDorate applicants must execute Note, m corporate name. I~y Ouly au[t~onzefl o-~'lTi~:er, aha seal musl De atfixeO ano ~uly allesie¢l: pa.'l. nership ~plicants must execute Note in firm name. together W,lh signature o! a general partner. S8,A Forr~ 147 Page 3 U. _c: GO¥£RNMI~N"2 PRZI'I'Z'ZtlG OFFZC.' : 1993 0 - 348-951 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION ) Plaintiff ) ) vs. ) No. ) ) Defendant. ) CARLA D. SMITH CERTIFICATE OF RESlDENCF I hereby certify that the precise address of Plaintiff is: Fifth Avenue and Wood Street Pittsburgh, Pennsylvania 15265 and that the last known address of Defendant is: 1008 Forbes Road Carlisle, Pa 17013 Donna M. Donaher, Esquire Attorney for PNC Bank, National Association AFFIDAVIT The undersigned hereby certifies that the judgment to be entered in this action is not being entered against a natural person in connection with a consumer credit transaction. To the contrary, the underlying transaction is a commercial transaction. Donna M. Donaher, Esquire Attorney for PNC Bank, National Association Sworn to and subscribed before me this 2~-~'t day of v"v~. ~ ,2003. ~----.. Nota~ Public .... 683.1 ~ lqolm-bl Seal · | MeSm Sun[ay, Mard]er, ~ ~ ol' Nui~:.~s ACT 105 OF 2000 NOTICF A JUDGMENT HAS BEEN ENTERED AGAINST YOU BY CONFESSION OF JUDGMENT. PURSUANT TO 42 PA. C.S.A. {}2737.1, IF YOU WERE INCORRECTLY IDENTIFIED AS A DEFENDANT IN THE COMPLAINT IN CONFESSION OF JUDGMENT, YOU MAY BE ENTITLED TO COSTS AND REASONABLE ATTORNEY FEES AS DETERMINED BY THE COURT. YOU MAY TAKE ACTION TO STRIKE THE JUDGMENT BY FOLLOWING THE PROCEDURE IN RULE 2959 WHICH IS AS FOLLOWS: Pennsylvania Rule of Civil Procedure 2959 - Striking Off Judgment. (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 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 Pennsylvania Rule of Civil Procedure 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 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 show 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 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 is pending. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, CIVIL DIVISION VS. Plaintiff, NO. AFFIDAVIT OF NON-MILITARY SERVICE CARLA D. SMITH, Filed on behalf of Plaintiff, PNC Bank, National Association Defendant. Code: Counsel of Record for This Party: Donna M. Donaher, Esquire Pa. I.D. #53165 TUCKER ARENSBERG, P.C. Firm #287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, ) ) Plaintiff, ) ) VS. ) ) CARLA D. SMITH, ) ) ) Defendant. ) No. Personally appeared before me, the undersigned authority, John Matlak, who, being duly sworn according to law deposes and says that upon inquiry, and from his own personal knowledge, he knows and avers that the defendant in the above action is not in any branch of the military service of the United States. John Matla~'~ Assistant _Vic~ ~rcasident and Attorney RelatiX~hs Manager Sworn and subscribed before me this-~Z ! day of t~ ~ r o1~ ,2003. -- My commissio~ ex13ires: 194226_1 Melissa Szalkay, Notary Public City of Pittsburgh, Allegheny County My Commission Expires Oct. 31, 2005 Member, Pennsylvania Association o! Notaries VERIFICATION The undersigned, John Matlak, hereby verifies the statements of fact contained in the attached Complaint in Confession of Judgment to be true and correct according to his personal knowledge, information and belief, and further pledges that this verification is made subject to the penalties of 18 Pa. C.S.A. {}4904 relating to unsworn falsification to authorities. Date: By: John M Assist~ Attorney ~ae President and tions Manager IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION ) Plaintiff ) ) No. (:~ - I1~O VS. ) ) ) Defendant. ) CARLA D. SMITH TO: CARLA D. SMITH, Defendant NOTICE OF ENTRY OF JUDGMENT Please take notice that on ,~;.~,-/-._~_.~_ ,2003, a Judgment by Confession of Judgment, was entered against yo.u in the court and at docket term and number set forth above. The amount of the Judgm6nt is $175,467,46, plus costs. Prothonotary, Cumberland NO. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, VS. CARLA D. SMITH, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 03-1450 CERTIFICATE OF SERVICE UNDER RULE 2958.1 Filed on Behalf of Plaintiff, PNC BANK, NATIONAL ASSOCIATION Counsel of Record for This Party: Donna M. Donaher, Esquire PA I.D. No. 53165 TUCKER ARENSBERG, P.C. Firm No. 287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 NO. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNG BANK, NATIONAL ASSOCIATION, ) ) Plaintiff, ) ) VS. ) ) CARLA D. SMITH, ) ) Defendant. ) No. 03-1450 CERTIFICATE OF SERVICE UNDER RULE 2958.1 The undersigned hereby certifies that she did serve a Notice Under Rule 2958.1 of Judgment and Execution thereon, upon the Defendant on April 10, 2003, by certified mail, at the following address: 1008 Forbes Road Carlisle, PA 17013 A true and correct copy of the Notice Under 2958.1 and the return receipt is attached hereto. TUCKER ARENSBERG, P.C. Donna M. Donaher, Esquire 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 197567_1 TUCKER ARENSBF. I G, P.C. CELEBRATING A CENTURY OF ,SERVICE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION ) Plaintiff ) ) vs. ) No. 03-1450 ) ) Defendant. ) CARLA D. SMITH Notice Under Rule 2958.1 of Judgment and Execution Thereon Notice of Defendant's Rights To: Carla D. Smith 1008 Forbes Road Carlisle, PA 17013 A judgment in the amount of $175,467.46 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 O~ WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RI'GHTS. 1500 ONE PPG PLACE PITTSBURGH, PENNSYLVANIA 15222 412-566-1212 FAX 412-594-5619 Pittsburgh Airport Area · Harrisburg E-mail: tapc@tuckerlaw, com www.tuckerlaw, com 'TucKER. AI: NSBEP,,.G, CELEBRATING A CENTURY OF SERVICE 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 Carlisle, PA 17013 (717) 240-6200 By TUCKER ARENSBERG, P.C. Donna M. Donaher, Esquire 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 195910_1 1500 ONE PPG PLACE PITTSBURGH, PENNSYLVANIA 15222 412-566-1212 FAX 412-594-5619 Pittsburgh Airport Area · Harrisburg E-malt: tapc@tuckertaw, com www.tuckerlaw.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, VS. CARLA D. SMITH, Defend~ ~nt. No. 03-1450 PRAECIPE TO SATISFY JUDGMENT Filed on Behalf of Plaintiff, PNC BANK, NATIONAL ASSOCIATION Counsel of Record for This Party: Donna M. Donaher, Esquire PA I.D. No. 53165 TUCKER ARENSBERG, P.C. Firm No. 287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, VS. No. 03-1450 CARLA D. SMITH, / / Defendant. PRAEClPE TO SATISFY JUDGMENT TO: Prothonotary, Cu~nberland County Kindly mark th[e judgment in the above-referenced matter, entered in favor of Plaintiff and against the Defer :lant, as satisfied. Respectfully submitted, Donna M. Donaher, Esquire Attorney for PNC Bank, National Association Sworn to and subscrit~ed before me this ~-E,¢' (~ay of ; oo3. J~Otary Public - ~' BANK_FIN:207363-1 000011lll 1726