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Home My WebLink About01-06187 ~ .~~, " , " , " , . , . Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA MID PENN BANK Ys. GORDON K. BANZHOFF AND MARY L. BANZHOFF, husband and wife, NO. 01- {P tP7 Cu~CT~ Defendants CIVIL ACTION - LAW CONFESSION OF JUDGMENT AND NOW, this ,,1.3rdday of O~+obe( , 2001, Christian S. Daghir, Attorney for Plaintiff, pursuant to the warrant of attorney in the Promissory Note, the original or a copy of which is attached to the Complaint in Confession of Judgment, does hereby appear for and confess judgment in favor of the Plaintiff and against Defendants, Gordon K. Banzhoff and Mary L. Banzhoff, as a result of the default as alleged in the Complaint as follows: Balance of principal as of October 8,2001 $42,900.00 Interest on unpaid balance Late fees and charges o Attorney collection fee Q TOTAL $42,900.00 aWfiA~4(~~ Christian . Daghl sqUIre Judgment in the arnount of$42,900.00 entered as above ~ 2001. Prothonotary ~ fr.\WPI.DOCIClV.F1BIMPa.BlIIZholf_2.""", c' ",::<__~,ljII_!$,,:Pl_, ,.:,.":~.~,- )0"--.'", ,--'~<::---:-','-l -- ~- '--n__-,~ " ^ - ,--e",--; -",.- -~ ,~, _'.V .~'-<.--nLl'- r.' U',Fi' "c , . , Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA MID PENN BANK Vs. GORDON K. BANZHOFF AND MARY L. BANZHOFF, husband and wife, NO.Ol- (../1 7 Qu~l '--r~ Defendants : CIVIL ACTION - LAW COMPLAINT IN CONFESSION OF JUDGMENT 1. The Plaintiff, Mid Penn Bank, is a financial institution organized and existing under the laws of the Commonwealth of Pennsylvania with offices located at 349 Union Street, Millersburg, Dauphin County, Pennsylvania. 2. Defendants, Gordon K. Banzhoff and Mary L. Banzhoff, husband and wife, are adult individuals residing at 245 25th Street, Camp Hil~ Cumberland County, P A 170 II. 3. On or about April I, 1993, Plaintiff made a loan to GordonK. Banzhoff, t/a 225 Associates, in the principal amount of $75,616.36, (hereinafter referred to as the "Loan"), as evidenced by that certain Term N ote (the "Note"), a true and correct copy of which is attached hereto as Exhibit "A" and is incorporated herein by reference. 4. The Note contains a confession of judgment provision that allows plaintiff to enter judgment against Gordon K. Banzhoff after default on the Note without advance notice or an opportunity to defend against the entry of judgment. 5. On or about March 30, 1993, as security for the Note, Defendants executed and delivered a mortgage to Plaintiff in an amount equal to the Note and all sums due thereunder upon certain real property located at Unit No.1 0751-1, Swingold Condominiums, Upper Allen Township, Cumberland County, Pennsylvania, for the purpose of securing the payment of the Note and the performance and observance of the terms, conditions and covenants of the Note (hereinafter referred G:\WP\DOC\CIV.FLEIMPB_BlIlIWoff_2.wpd - -.'~ ,.,,- , '-'''''^,'," ~-C' ''';'''F___ ~,-.""-~~-"- !>-, . .~I ,'_ ''"10_ ",-', -_ ""-^';'y "c "",,--,, _ ",,":--'--',-' -,- . :Y-'c"-.'~"'I ;" ,-. ., .~' . ' to as the "Mortgage (II)" ). A true and correct copy of Mortgage (II) is attached hereto as Exhibit "B" and is incorporated herein by reference. 6. The Mortgage (II) contains a confession of judgment provision that allows Plaintiff to enter judgment against Defendants after default of the Note without advanced notice or an opportunity to defend against the entry of judgment. 7. Defendants are in default of the Note as a result of, inter alia, Gordon K. BanzhotI's, failure to make payments on the Note when due. 8. The last payment on th Note was made on or about August 10,2001 in the amount of $2,722.62. 9. All notice requirements have been fulfilled and the Note and the Mortgage (II) have been accelerated. 10. Pursuantto the terms of the Mortgage (II), Defendants, Gordon K. Banzhoffand Mary 1. Banzhoff, are liable to Plaintiff for the sum of $42,900.00. 11. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 12. The Note and the Mortgage (II) have not been assigned, and Plaintiffis the holder of the Note and Mortgage (II). 13. Judgment has not been entered against Defendants in any jurisdiction for their failure to make the required payments on the Note and the Mortgage (II). (i;\Wl'\DOC\CIV.FJ..E\M1>B-.BlInzhoJT-2.wpd , i~\;t"_ '11 \IT~"t:' ~ -'1"'.,. "''', -', ,",,'<,"". ,- 'T -"-~ "-I~ c,~ , ~ > "" ~~ . ' WHEREFORE, Plaintiff demands judgment against Defendants in the sum of $42,900.00 with applicable judgment interest. Dated: October ,B , ,2001 ~~2::JL Christian S. Daghir, Esquir Supreme Court ID#4774 I 105 North Front Street Harrisburg, PA 17101 (717) 234-5600 G:\WP\DOc..'\CIV.FLE\MPB-BanzlLOlT.2,wp~ '-UJ'T -" ~_~-: _'.'_~""H"" 'S,-_-~,-~_____ ' 'I' 1- ~" _. <"-,,..,-,- -q-- --~^ :tj,_":~" ,,-~. ;'-".- ,- , '''- '" -' < ' , CERTIFICATION I hereby certify that the precise address of Plaintiff is 349 Union Street, Millersburg, P A 17061. 1 further certify that the last known address of the Defendants are: :;i di Gordon K. Banzhoff Mary L. Banzhoff 245 25th Street Camp Hill, PA 17011 ':-1 I further certify that the underlying transaction, as evidenced in part by the exhibits attached i~ to the Complaint in Confession of Judgment is a commercial transaction. Dated: f)dober .;<3 , 2001 Christian . Daghir, Supreme Court ID 741 105 North Front Street Harrisburg, PA 17101 Attorney for Plaintiff O:\WPlDOC\CIV.FLB\MJ'B.BIIIIZlK>fl'-1.wpd i"?1. -,C'_,,";,,-,-~,or,.:.~,"; r<-, ~ --~,,- '--," , -;'-_~-_ _' r- I' " - ---~ -" " " ,.lnr~."',',' .. OCT-17-2001 WED 10:38 AM MID PENN BANK , lalla:'>~aal ,a4:39 717234561a I rAY NO 7'7"9";C6' , . ,; ,,' I I 1 j 0 c:...~v ~ ETZ~IE"LER & aSSOC. . ,P, 01 PAGE lie I verify thllt the statelnents mad,~ in this CORlpl",iIlt iltIl tru.e and correct. 1 understWld that fal$e state=nts herein are made sub}~ to the penaltJ IlS of 1 g Pa. C.S.A. 24904 relating to Ullswom falsification to authorities. Dated: OCTOBER 17, 2001 SR. :o:tCE,.PRE"SIDENT, ClllIIIIW:cial LOIlll Mid Penn Bank . ~~n~.... '3": '~r-~h _ " , ,,~-= ? , , , ~,.,.. ~. "I'" -,"" ~{i ,.",~., ,,," ''-~ Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA MID PENN BANK Vs. GORDON K. BANZHOFF AND MARY L. BANZHOFF, husband and wife, NO. 01- Defendants CIVIL ACTION - LAW AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYL V ANlA : SS. COUNTY OF DAUPHIN Christian S. Daghir, Esquire, being duly sworn according to law deposed and says that he makes this affidavit on behalf of the within Plaintiff, being authorized so to do, and that he avers that defendants are not in the military or naval service of the United States or its Allies, or otherwise within the provisions of the Soldiers and Sailors Civil Relief Act of Congress of 1940 and its amendments. Respectfully Submitted, ETZWEILER AND ASSOCIATES By: ~J;P;' x<~ Christian S. ~hir, Esq. Sup. Ct. J.D. No. 47741 105 North Front Street Harrisburg, PA 17101 (717) 234-5600 Sworn and Subscribed to before me this . (4- 023 day of October, 2001. 1tUvV1 It '/Pa0G( Notary Public ii "~I: G;\WP\DO(:\CIV.l'LEIMPH.Harllho1f.Z,wpd NoIarllll Sanl , . Karen \. ""Ii' "'.~ l'\IIiIlllI Notl1\rial Seal ". "'u"I\I Hanilbul~ ,.,.... " '(i4 Karen i... j:,)~d! rW)lary PUblk' My Commlt8lOn ""I>'I~. I'i,a', 1 G, lIQ Harrisburg, {jl:iu~mln Count); My Commlstllon expires May 13, 2004 "i " ;'!'-W",),,_ _1.,., -'-'""';';-"-"-,,^--- --"",, - "~.- -1'--" -,- "",-,..-" ""'"- .. " ',- i~' (~ " I': I:i ~j r! u I' i'l j' k~ 1-,'1 I' I',' i< .... .... ,,~- ,~,," _..,!-- -.'-", ."v_...,;_~~ 'l'ElU! NOTE ($75,6H.36) A-p,..; I J-,' 1"14:<' FOR VALUE RECEIVED, t);l.e-'lMcrer'sj:qned..,~ GOJl=BANZ:a:O"i-SR~ GORDONJ:. BUZKOJ'F, JR., r~1 '.JJ', _ ~IC..:: _.'h.~ .....!..~\1i',) 'l'UCIIlfG AS 225 ASSOCU~IJD, a Pe,w.q~a ~~.~ -.patt=!_ElU:~~ promises to pay to the, order of KID pmm DUX ("Lender" i the principal sum of Seven1::y-pive Thousand six Hundred sixt.een and 36/100ths ($75,616.36), together with interest thereon at the rate of eight percent (8.00%) per annum, pased on a year of 360 days ("contractual Rate"), from the date hereof. For the period frOJ.'ll the date hereof ("13eginning Date"), the undersigneo. shall pay equa1 monthly installlllents of principal and interest in the amount of $722.62. All such payments of principal and interest shall COllllltenCs on May 1, 1993 and continue on the first (1st) day of each month thereafter through to and including April 1, 2008, if not Sl:loner paid. 1. Late Charae~. If the Undersigned, or anyone of them, fails to make any payme.nt of principal or interest due and owing hereunder within fifteen (~5) o.ays of the due date, an additional lat.e Charge of four pex'cent (4%) per month of the amount of such payment or payments shall be immediately due and payable. 2. Default Rate. After maturity, whether by acceleration or otherwise, interest sha.ll accrue at a rate of three percent (3%) per annum abcve tlle cOl.1tractual rata ("Dafault Rate") until all sums due hereunder are paid in full. Interest shall continue to accrue after entry of judgment at the Default Rate to all sums due hereunder unti1 the jUd'g:ment is paid. 3. Time of the E!:lsenca. The prompt anCl faithful performance of all Obligations of the Undersigned's, or anyone of them, hereunCler, including, but not limited to, time of payment, is of the essence of this Note. 4. Lender" s Recprds. So long as Lender is the holder hereof I Lender' 51 hooks i:ind records shall be presumed, except in the case of manifest errcr, to accurately evidence at all times all amounts outstanding under this Note and the date and amou.~t of each adva.nce and. payment made hereto. At the request of Undersigned, hut not more than once in any calendar year, Lender shall provide the Undersigned with evidence of its records of this Note in the form of an account hist:ory or similar report. Exhibit "A" _T '"~.' ,"'~_:'_, _. "'.'<,,-. -'~/-, "I 1"- ", ,,-,. ~" -,,-- . .".. ..~. '.' ",,- .'- "'- vv 5. EVents of Defalllt. Anyone of the followinC1 occurrences shall constitute an ~I'ent of Default pursuant to this Note (collectively referred tl~ hereinafter as the "Events of Default") : (A) (B) (e) (D) ,t, -,,~.[Jl", . ~,' The failure t.O pay any installments of principal or interest or any other sums due hereunder for a period of thirty (30) d2'YS after the date duei The failure t:o perform any ather term, condition or covenant here\J.nder, which failure remains uncured thirty (30) days aftl"r written notice of same from Lender; 'l'he issuance of a writ or warrant of attachIllent, garnismnent, execution, distraint or similar process against Under~ligned, or anyone of them, which shall have remained undis:charged and unstayed for a period of twenty (20) consecut:Lve days; The filing, e:i.ther VOluntarily or involuntarily, or any proceeding o:l~ bankruptcy or for reorganization of Undersigned, c:lr anyone of them, or for the readjustment Of any of thei"r debts under the United states Bankruptcy code, as amencl.ed. or any part thereof, or under any other laws, whether state or federal for the relief of debtors, now or hereinafter existing and Which proceeding shall not be dischal~ged or stayed within sixty (60) days from the date of tl~eir commencement; (E) The appointmel:lt of a receiver or trustee for Undersigned, or anyone c:lf them, of any substantial part of its assets, and such receiver or trustee shall not be discharged within sixty (60) days of his or her appointlIlent Cl,r proceeding tc dismiss such receiver or trustee are n.ot instituted within thirty (30) days; and A default unc,er the terms of the Mortgage dated of even date hereof, by and between Gordon K. Banzhoffand Mary L. Banzhoff 'imd Lender (Mortgage "A") or the Mortgage dated of evem date hereof, by and between Gordon K. Banzhoff, Jr ,. and Lender (Mortgage "B"), including but not limited -to, Gordon K. Banzhaff, Jr.'s failure to cause Martga,;e "B" to be in a first lien priority position on the real property secured by Mortgage "E", on or before May 31., 1995. (F) 2 - ,~ . --- -~ -, '^ -- "I 6. Riahts and Re!iledies of Lender Upon Defau~t. Upon tbe occurrence of any Event of Default here1.Ulder, all a.1llounts due under this Note, includinq the unpaid balance of principal and interest hereof, shall become i~ediate~y due and payab~e at the option of Lender wi tbout any delllilnCl. or notice whatsoever and Lender llIay il11lllec1.iately thereafter filxercise anyone or lllore of the remedies avaiJ.able to Lender under any appJ.icable law or in equity .and institute such legal, equitable or other proceedings in the name of the undersigned, or anyone of them, or Lender as Lender deems appropriate. In the event Lender, in el/:srcisinq any rights and remedies upon the ocour::-ence of any Event of Default, makes any disbursements or incurs any costs therefor, the amount of such costs shall be added to the principal amount of the Note, and collectEld as part ot thJ.s Note. If an Event of Defau~t shall occur, the delay or failure of Lender to prolllptly eXI;,rcise its rights to declare this Note illllllediately due and paya.ble or to exercise any rights and remedies upon the occurrence of ,m Event of Default, shall not affeot such rights and remedies, nl:lr shall any single or partial exercise constitute a waiver of such rights and remedies with respect to such Event of Default OJ:7 any future Event of Default. Any waiver or release of anyone Event of Default by Lender shall not be construed as continuing as a bar to, or as a waiver or release of, any subsequent rights, :J:'emedies, or recourse as to subsequent or ather Events of Default.. Any rights or remedies of Lender may be asserted concurrently, I:JUllIulatively or successively, from time to time so long as the Unc;ersigned, or anyone of them, is indebted under this Note. 7. Preoavment. This Note may be prepaid in full or in part without premium or penal.ty, with all such prepayments being applied in inverse order of matlJrity. a. Pavments. Payments of pr incipa~ and interest are to be made payable to Mid :penn Bank, at 349 Union street, Millersburg, Pennsylvania ~7061, or at ~uch p~ace as Lender may designate in WJ:'iting, in lawful monf~y of the United states of America ana in ilUlllediate~y aVai~able funas. 9. Governina La'i!. This Note shall. be governed by and construed in accordanCie with the laws of the COl11lll0m'18alth of Pennsylvania. 10 . Wa i ver . 'I'he Under:;;iqned, or anyone of them, hereby waives diligence, delllill1d, presentment, notice of nonpayment, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note. 3 --;'t'i:i'?l!. , 1 ~ , ~,- ~ . - ,~ 11. ~ttorn~ys' Fe~a' In the event that this Note is ~laced in the hands of an attor!1cey at law for collection after maturJ.ty or upon the oecurren~e of an Event of Default, or to enforc~ any of the rights, remed..es or requirements of Lender under th:u: Note, including any actions; or proceedings ill bankruptcy, the Undersigned, or any on':~ of ~em, ~9rees to pay ,a3:1 costs and e~enses incurred by Lender, ~nclud~ng, but not lJ.1llJ.ted to, all attorneys' fees and cO$'I:s, regardless of whether the maturity of this Note has been accelerated or any other action instituted. 12. Amendment. This Note may net be alllended, modified or changed, nor shall any '{{aiver of any of the provisions hereof be effective, except only by an instrument in writing, signed by the parties against whom enforcement, any waiver, amendment, change, modification or discharqe is sought. 13 . Headings. ThE" sectional headings contained in this Note are for referenoe purpos;es only and shall not control or affect its construction or interprl~tation in any respect. , 14. Severabilitv. Any provisions of this Note which are held to be prohibited or UJ'llmforceable in any jurisdiction, shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of suc...'1 provisions in any other jurisdiction. 15. CONFESSION 01': JUDGMENT. UPON AN EVENT OF DEFAULT, 'rHE UNDERSIGNED, OR ANY ONl!: OF THEM, HEREBY IRREVOCABL'l EMPOWERS ANY ATTORNEY OF ANY COURT Ol!' RECORD WITHIN THE UNITED STATES OF AMERICA OR ELSEWH:eRE TO APPEAR FOR UNDERSIGNED, ~ ANY ONE OF THEM, AND, WITH OR WI'l'HOUT COMPLAINT FILED, CONFESS JUDGMENT AGAINST UNDERSIGNED, OR ANY ON];; OF THEM, IN FAVOR OF ANY HOLDER HEREOF AS OF ANY TERM, FOR THE UNPAID BALANCE OF THE PRINCIPAL DEBT, APD1TIONAL LOANS AND ADVANCES AND ALL OTHER SUMS PAID BY HOLDER TO OR ON :BEHALF OF UNDERS:J~GNED, OR ANY ONE OF THEM, PURSUANT TO THE TERMS 0]' THIS NOTE, TOGJ:~T:a:ER WITH UNPAID INTEREST THEREON, COSTS OF SUIT AND AN ATTORNEYS' COMMISSION OF TEN PERCENT (10%) OF ALL AMOUNTS DUE OR $1,500.(iO, WHICHEVER IS GREATER. THE UNDERSIGNED, OR ANY ONE OF TEEM, HEHEBY FOREVER WAIVES AND RELEASES ALL ERRORS , 1N SAID PROCEEDINGS, 1><:AIVES THE STAY OF EXECUTION, THE RIGHT OF INQUISITION AND EXTENS:r.ON OF TIME OF PAYMENT. NO SINGLE EXERCISE OF THE FOREGOING POWEE< TO CONFESS THE JUDGMENT OR A SERIES OF JUDGMENTS SHALL BE DEEI~ED TO EXHAUST THE POWER OF WHETHER OR NOT ANY SUCH EXERCISE SHAL:i. BE HELD BY ANY COURT UNOlMINISHED, AND IT MAY BE EXERCISED FROM 'rIME TO TIME AS OFTEN AS THE HOLDER HEREOF sHALL ELECT UNTIL SUC!'! TIME AS THE HOLDER SHALL HAVE RECEIVED PAYMENT 1N FULL OF ~:'HE PRINCIPAL DEBT, ADDITIONAL LOANS AND ADVANCES I SUMS PAID, IN'TEREST AND COSTS. 4 .j"": r:'(7!,.. ,'.. .~. . '""'"'' -'..', r I .-r _ ,'. ~r' ~ ~ v~ _~"'~ .__ __ _;.".. "_'. i .__. .... """t' '.' ~'-'_":'-",,- I'I' IS HEREBY ACI<NOWLEDGED THAT THE CONFESSION OF JUDGMENT PROVISION HEREIN CONTAINED WHICH AFFEC'I'S CERTAIN LEGALRIGH'I'S OF IDlDERSIGNED, OR AID! ONE OF THEM, liAS BEEN READ, UNDERSTOOD AND VOLUNTARILY AGREED TO SY THEM. 1.6. WAIVER OF TRIll!. BY JURY. IN RECOGNITION OF THE HIGHER COST AND DELAY WHICH MAY RESULT FROM A JURY TRIAL, THE UNDERSIGNED HERETO WAIVE ANY RIGHT '1'0 TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION' (l} ARISING HEREONDER, OR (2) IN ANY WAY CONNECTED WITH OR RELA'l'ED OR INCIDENTAL TO THE DEALINGS OF THE UNDERSIGNED, OR ANY ONE OF '!'HEM, AND LENDER WITH RESPECT KERETO, :IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTMCT OR TORT OR OTHERWISE; AND THE UNDERSIGNED HEREBy AGREE AND CONSEN'r THAT ANY SUCR CLAIM, DEMAND, ACTION OR CAUSE OF AC'tION SHALL BE DECIDED BY COURT TRIAL WITROll'T A JURY, AND THtI.'I' LENDER MAY FILE Il.N ORIGINAL COUNTERPART OR COPY OF THIS SECTION WITH ANY COURT .1\5 WRITTEN EVI.DENCE OF THE CONSENT OF THE UNDERSIGNED TO THE WAIVli:l'l OF THEIR R!GHT TO TRIAL BY JURY. WITNESS I the due e:,<ecution hereof on the day and year first above WTitten. 225 ABaCC:IATES, il pennsylvania Genera2 Pa:t~ership WITNESS: " C :JJ BY: / S'!: JIrt 5 '7r. ! , . " .~. ~ -. r 'V" - ,. , ~ 'J -..-... ~._. ~v. ~..., _""'''. .... ~....-:...., .:,. ..~... ......,.. ~.-..:.. wrr..'. t Pdt WITNESS: _ ~ ~~~ , ~ ,v~.::.'-;'-'.... .[. V I ~, ""-/1-.:1~ J F. HAND "~~WRI~# 6 -. -. . ,.. _~ .,..... .... Ii.... '_.H.' ~::,j.. i ,'7." ....... t.;" ,,-:':::'-:C_. .I', U-.:' ACK1l'OWL1!lDGHElIT STATE OF prO!?. t"c. A . } ) 55: COUNTY OF fV\!') t'1 11.0 IF _ ) On this dat.e, befol::e me a Not.ary Public, personally appeared Hasbrouck S. Wright. kno~n to me or satisfactorily proven to be the person whose name is sub:~cribed to this instrUJllent and acknowledged that. he e~ecuted the sa~l.e. If this person's name is subscribed in a representative capacity, it is for the principal named and in the capacity indicated. BY I.m~'brou t k r;;, WfClfrl-l 7" WHO. IS FERSONALLY KNOWN TO. ME. ~-1J JL > 11~ NOTARY PU LIe" "3 '30 f:3 My Commission Expires: 10 """1~~~. ~ "'_,_ ~ .~~- - I - - ~~ ~'. m: <"'#i,1:rT"t~ . ,_.'.' ....;.1.1. STATE OF PENNSYLVANIA: : SS: COUNTY OF DAUPHIN . . .."". I., __....L-=___. ,-,0 ACKNOWLEDGEMENT On this ~st day of April, 1993, befo~e me, a Notary Public, the undersiqnecL officer, personally appeared Gordon K. Banzhoff, Sr. r Gordon K. Banzhoff, Jr. and Jonathan F. Hand, known to me or satisfactorily proven to be the persons whose nallles are subscribed t() this instrument, that they are the general partners of 225 Associates, a Pennsy~vania general partnership, and acknovledged that they executed the same for the purposes oontained therein. ~~~.~ Not.ary Public My Commission Expires: NQ1QlialSeal Pul:lIc J 1JGaR.~.~CaJ'1lv ~~=n~eGJtJV12, i:193 ,-' ,~ . r , " ." . ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY-PA MORTGAGE AND SECURITY AGREEMENT '93 APR 20 PI'l12 05 THIS MORTGAGE AND SECURITY AGREEMENT ("Mortgage") is made this ~ day of M",rd1 , 1993, between GORDON It. BANZHOFF AND MARY L. BANZHOFF, individuals residing at 245 North 25th Street, Camp Hill, Pennsylvania 17011 (collectively referred to as "Mortgagors") and MID PENN BANK having offices at 349 Union street, Millersburg, Pennsylvania 17061 (hereinafter called "Mortgagee"). WIT N E SSE T H: WHEREAS, Mortgagor Gordon K. Banzhoff, Gordon K. Banzhoff, Jr., Jonathan F. Hand and Hasbrouck S. Wright, trading as 225 Associatl~s, a Pennsylvania general partnership have executed and delivered to Lender a certain Term Note, dated of even date hereof, in the original principal amount of $75,616.36 ("Term Note"); and WHEREAS, as security for the Term Note, Mortgagors hereby execute and deliver to Mortgagee a certain Mortgage in an amount equal to the Term Note and all sums due thereunder, upon certain real property located in Upper Allen Township, Cumberland county, Pennsylvania. NOW.. THEREFORE, for the purpose of securing the payment of the Term Not:e and the performance and observance of the terms, conditions and covenants of the Term Note, this Mortgage and any agreement.s, documents or instruments executed in connection therewitll (hereinafter collectively referred to as the "Obligations") and intending to be legally bound hereby, Mortgagors do here~r grant, bargain, sell, pledge, convey and mortgage unto Mortgagee, its successors and assigns, all that certain tract of land si.tuate in Cumberland County, Pennsylvania, and more particularly described in Exhibit "A", attached hereto and made a part hereof ("Land"); TOGETHER WITH ALL AND SINGULAR the fixtures, buildings and improvements, streets, lanes, alleys, passages, way, waters, water courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in any way appertaining, and the revisions and remainders, rents, issues and profits t:hereof (hereinafter collectively referred to together with the Land as the "Mortgaged Premises"); TO HAVE AND TO HOLD the same unto the said Mortgagee, its successors or assigns, FO:REVER. PROVIDED, HOWEVER, that the total principal, other charges due under the Obligations secured by shall be limited to a maximum of $42,900.00; and interest and th\,is Mortgage \ Exhibit lie" bOOK 1128 PAGE 151 '*"~tf~,,__,,_ . i"_' ~. ,~- I ^ , . , ' PROVIDED, that upon satisfaction in full of the Obligations and Mortgagors' obligations herein to Mortgagee, then this Mortgage and the estate hereby granted shall be discharged. MORTGAGORS represent, warrant, covenant and agree that: FIRST: Mortgagors will payor cause to be paid to Mortgagee the Term Note secured hereby as and when due and will fully and faithfully comply with all of its other Obligations and will keep and perform all the covenants and agreements contained in the Term Note and this Mortgage, in the manner and form as therein and herein set out. SECOND: Mortgagors agree not to transfer title to the Mortgaged Premises unless Mortgagee consents in writing prior to such transfer. THIRD: Mortgagors specially warrant title to the Mortgaged Premises. Mortgagors further warrant that the Mortgaged Premises is held and shall continue to be held free and clear of all liens, claims and encumbrances, except those set forth in a certificate of ti tIe of Wix, Wenger & Weidner, dated" L " , 1993. ApI" I FOURTH: Mortgagors will payor cause to be paid when due all taxes, assessments, levies, impositions and other charges on or against the Mortgaged Premises. If Mortgagors fail to do so, Mortgagee at its sole option may elect to pay such taxes, assessments, levies, impositions or other charges. Upon request by Mortgagee, Mortgagors shall provide to Mortgagee, in a form and substance satisfactory to Mortgagee, evidence of payment of all such taxes, assessments, levies, impositions or other charges. FIFTH: Mortgagors shall keep or cause to be kept the Mortgaged Premises in good repair, excepting only reasonable wear and tear. Mortgagor will permit ]'iortgagee's authorized representatives to enter upon the Mortgaged Premises at any reasonable time for the purpose of inspecting the condition of the Mortgaged Premises and conducting any appraisals or environmental audits. Mortgagors will not permit removal or demolition of improvements now or hereafter erected on the Mortgaged Premises without the prior written consent of Mortgagee, nor will Mortgagors permit waste of the Mortgaged Premises or alteration of improvements now or hereafter erected on the Mortgaged premises which would materially and adversely affect its market value as determined by Mortgagee, in its reasonable discretion. SIXTH: Mortgagors shall keep or cause to be kept the Mortgaged Premises insured against such hazard and casualty and in such amounts as Mortgagee shall so require from time to time, but 2 BOOf,1128 PAtE 152 -'i'~':l':~~,.."., ! ' ,-, ," under no circumstances shall such insurance be for an amount less than $42,900.00. All such policies of insurance shall prohibit termination without thirty (30) days prior written notice to Mortgagee and shall identify Mortgagee as a loss payee under a standard mortgagee/loss payee clause. If Mortgagors fail to obtain and keep in force any required insurance or fail to pay the premiums on such insurance, Mortgagee at its sole option may elect to do so. In the event of loss, Mortgagors shall give prompt notice to the insurer and Mortgagee. Mortgagee at its option may elect to make proof of loss if Mortgagors do not do so promptly, and to take any action it deems necessary to preserve Mortgagors' or Mortgagee's rights under any insurance policy. Subject to the requirements of any prior mortgagee, insurance proceeds shall be applied to the restoration or repair of the Mortgaged Premises or, if Mortgagors are in default hereunder, to reduction of the Obligations secured hereby, at the option of Mortgagee, in its sole discretion. SEVENTH: Mortgagors hereby agree to repay or cause to be repaid to Mortgagee on demand all sums which Mortgagee has paid at its sole option under Paragraphs Fourth and Sixth, with interest thereon at the contractual rate then due on said Term Note; and all sums, together with interest thereon, until repaid to Mortgagee, shall be part of the Obligations and be secured hereby. EIGHTH: Subject to the rights of any prior mortgagee, Mortgagors hereby assign to Mortgagee all proceeds up to an aggregate of any award in connection with any condemnation or other taking of the property or any part thereof, or payment for conveyance in lieu of condemnation. NINTH: In order to further secure Mortgagee in the event of default in the payment or performance of the Obligations secured hereby, Mortgagors hereby assign and transfer to Mortgagee, its successors and assigns, any and all leases on the Mortgaged Premises or any part thereof, now existing or which may hereafter be made at any time, together with any and all rents, issues and profits arising from the Mortgaged Premises under said leases or otherwise, without obligation of Mortgagee to perform or discharge any obligation, duty or liability under such leases, but with full authorization to collect all rents under the leases or otherwise upon the occurrence of an Event of Default and apply the rents as it deems appropriate, in its sole discretion, and to take possession of and rent the Mortgaged Premises. 3 bood128 PACE 153 ;W~~W1\fli", , "1' _' ~,. TENTH: In the event of any breach of warranty, covenant, condition or agreement of this Mortgage which is not cured within thirty (30) days after written notice from Mortgagee, or in the event that any representation or warranty contained herein proves to be false, inaccurate or misleading at the time it was made, or upon the filing by Mortgagors, or either one of them, of any proceeding in bankruptcy, either voluntarily or involuntarily, under the united states Bankruptcy Code, as amended, or under any other laws, whether state or federal for the relief of debtors, now or hereinafter existing and which proceeding shall not be discharged or stayed within sixty (60) days from the date of their commencement, or upon the occurrence of an Event of Default under the Term Note (hereinafter collectively referred to as an "Event of Default"), Mortgagee may, in addition to exercising any rights which Mortgagee may have under the applicable law, the Note or this Mortgage, foreclose upon the Mortgaged Premises by appropriate legal proceedings and sell the Mortgaged Premises for the collection of the Obligations secured hereby, together with costs of suit and a reasonable attorneys' commission. Mortgagors hereby forever waive and release all errors in said proceedings, waives stay of execution, the right of inquisition and extension of time of payment, agree to condemnation of any property levied upon by virtue of any such extension, and waive all exemptions from levy and sale of any property that now is or hereafter may be exempted by law. ELEVENTH: In the event of an occurrence of an Event of Defaul thereunder, Mortgagors hereby authorize and empower the clerk of any court or any attorney of any court of record in the Commonwealth of Pennsylvania or elsewhere as attorney for the Mortgagors, or against all persons claiming under or through the Mortgagors to appear for and confess judgment against the Mortgagors, for recovery by Mortgagee of possession of the same, without any stay of execution, for which this Mortgage or a copy thereof verified by affidavit shall be sufficient warrant; and thereupon a writ of possession may be issued forthwith, without any prior writ or proceeding whatsoever. Mortgagors hereby release the Mortgagee from all errors and defects whatsoever in entering such action in judgment and in causing such writ or writs to be issued and hereby agrees that no writ or error, appeal, petition to open and/or strike judgment or other objection shall be filed or made with respect thereof. If, for any such reason, such action has been commenced and the same shall be discontinued or possession of the Mortgaged Premises which is the subject of this Mortgage shall remain in or be restored to the Mortgagors, Mortgagee shall have the right to the same default or any subsequent default to bring one or more further amicable actions as above-provided to recover possession of the Mortgaged Premises which is subject to this Mortgage. Mortgagee may bring such amicable action in ejectment 4 M\i~1128 PACt 154 ',.;!iiljl~~I!lil'-T JIi ",." " c1"~-' <~,_~_~ '~.,~,,_',c,_'r "1 , .j _ _. - r, .. , . before or after the institution of foreclosure proceedings upon this Mortgage, or after judgment thereon, or after sale of the Mortgaged Premises which is the subject of the Mortgage by the Sheriff. TWELFTH: The rights and remedies of Mortgagee as provided herein or in the Note, relating to any portion of the Obligations secured hereby shall be cumulative and may be pursued singily, concurrently, or successively at Mortgagee's sole discretion, and may be exercised as often as necessary; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release of the same. THIRTEENTH: At Mortgagors' sole cost and expense, Mortgagors shall comply in all material respects with all federal, state and local laws, rules, regulations and orders with respect to the discbarge, generation, removal, transportation, storage and handling of hazardous or toxic waste or substances; pay immediately when due the cost of removal of any such waste or substances; and keep the Mortgaged Premises free from any lien imposed pursuant to such laws, rules, regulations and orders. In the event Mortgagor fails to do so, Mortgagee may declare the Mortgage to be in default. Mortgagors shall indemnify Mortgagee and hold Mortgagee harmless against all losses, costs, damages and expenses, including without limitation attorneys' fees and costs incurred in the investigation, defense and settlement of claims that Mortgagee may incur as a result of or in connection with the assertion against Mortgagee of any claim relating to the presence or removal of any hazardous waste or substance referred to in this paragraph, or in compliance with any federal, state or local laws, rules, regulations or orders relating thereto. FOURTEENTH: Mortgagors shall not install, or permit to be installed in or on the Mortgaged Premises, asbestos or any other substance containing asbestos and any other substances deemed to be hazardous by federal, state or local laws, rules, regulations or orders respecting such material. with respect to such material currently present in the Mortgaged Premises, Mortgagors shall promptly comply in all material respects with such federal, state or local laws, rules, regulations or orders at Mortgagors' expense. If Mortgagors shall fail to so comply, Mortgagee may declare the Mortgage to be in default. Mortgagors shall indemnify Mortgagee and hold Mortgagee harmless from and against all loss, costs, damage and expense, including without limitation attorneys' fees and costs incurred in the investigation, defense and settlement of claims, that Mortgagee may incur as a result of, or in connection with the assertion against Mortgagee of any claim relating to the presence or removal of any asbestos substance referred to in this paragraph, or in compliance with any federal, state or local laws, rules, regulations or orders relating thereto. 5 llood128 PACE 1SS :iL:~~,U-,-_ '".;1-"""'-' '-~'~~~---'""'f''''", --1' , . FIFTEENTH: Mortgagors hereby grant to and create in favor of Mortgagee a security interest in and to any and all fixtures, as that term is defined in the Uniform Commercial Code, as adopted in the Commonwealth of Pennsylvania ("Code"), to the Mortgaged premises and hereby agrees to execute any and all agreements, documents or instruments which Mortgagee, in its sole discretion, deems necessary to perfect and continue perfection of its interest therein. Upon an Event of Default, Mortgagee shall be entitled to any and all remedies available to a secured creditor under the Code, or as may exist under any applicable law or at equity. Mortgagors shall pay to Mortgagee upon demand all reasonable costs, including reasonable attorneys' fees and costs incurred in connection with the perfection 'and continuance of its interest granted hereunder or to the collection or enforcement thereof, with all such sums to bear interest at the contractual rate under the Note and secured hereby. SIXTEENTH: Any notice required to be given hereby shall be deemed to have been given when mailed by certified mail, return receipt requested to the addresses set forth below unless such other address is hereafter designated in writing by either party: To Mortgagee: Mid Penn Bank 349 Union Street Millersburg, Pennsylvania 17061 ATTENTION: Kim Allen Heim Adjustment Supervisor Gordon K. Banzhoff and Mary L. Banzhoff 245 North 25th Street Camp Hill, Pennsylvania 17011 To Mortgagors: with A Copy To: Steven C. Wilds, Esquire WIX, WENGER & WEIDNER 508 North Second Street P.O. Box 845 Harrisburg, Pennsylvania 17108-0845 SEVENTEENTH: The covenants, conditions and agreements contained herein shall bind the successors and assigns of Mortgagors, and the rights and privileges contained herein shall inure to the successors of Mortgagee. Mortgagors may not assign, transfer or delegate any of its obligations, duties or liabilities hereunder without the prior written consent of Mortgagee. 6 ~OQdl?~ PAGE 156 '-~---., '"-"" <-,-,- '1 - -- --1 , ~ - "' , , EIGHTEENTH: This Mortgage shall be governed by and construed in accordance with the laws of the Commonwealth of pennsylvania. If any provision hereof shall for any reason be held invalid or unenforceable, no other provision shall be affected thereby, and this Mortgage shall be construed as if the invalid or unenforceable provision had never been part of it. NINETEENTH: Unless otherwise specifically provided herein or as otherwise provided by the context herein, all terms set forth herein shall have the same meaning as those defined terms as they are used in the Note. TWENTIETH: In recognition of the higher costs and delay which may result from a jury trial, the Mortgagors, or anyone of them, hereto waive any right to trial by jury of any claim, demand, action or cause of action (1) arising from the Obligations, or (2) in any way connected with or related or incidental to the dealings of the Mortgagors, or anyone of them, and Mortgagee with respect hereto, in each case whether now existing or hereafter arising, and whether sounding in contract or tort or otherwise; and Mortgagors, or anyone of them, hereby agree and consent that any such claim, demand, action or cause of action shall be decided by court trial without a jury, and that Mortgagee may file an original counterpart or copy of this section with any court as written evidence of the consent of Mortgagors, or anyone of them, to the waiver of their right to trial by jury. WITNESS the due execution and sealing hereof the day and year first above written. e JJrYL . c JfJl RECEIPT OF A TRUE COPY OF THIS INSTRUMENT, PROVIDED WITHOUT CHARGE, IS HEREBY ACKNOWLEDGED. 7 BOO~ 1128 PACE 157 -"W"P~_Oll! ". _,w r "' . ?y , , ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA COUNTY OF O()..'-'.Q""'~ ) ) ) SS: On this, the ~'day of CV\o..r~ , 1993, before me, the undersigned officer, a Notary PUblic, personally appeared Gordon K. Banzhoff, who acknowledged that he has executed the foregoing instrument for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and notarial seal. ~~~,~ Notary Public . <{'!'t: ,,- n cl "J{' -'t..;-> '~. My Commission Expires: Nota.;aI Seal Usa R. Rowe, Nola1y Publo lower Paxton Twp., Dauphin County h.ly Commission Expires July 12, 1993 "', 6'.S 'IS' C,'., " ~ ~ oJ " "'" ",.,- 8 MOK 1128 PAGE 1'58 --'-',;,~iiiW__ 1l~__ ,,"c' 'l--'. ~ 'I I I. (f ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DGu<?"",",\<:'"'" ) ) ) SS: On this, th~ day of~c...n....,,", , 1993, before me, the undersigned officer, a Notary Public, personally appeared Mary L. Banzhoff, who acknowledged that she has executed the foregoing instrument for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and notarial seal. My Commission Expir ",,"'ll,t~~ ' "\1'c.h<;""'.,,,c , ~u ~~",~ '-4 ~\-<.. ~ ,,' 0:....:::..,;i;<..t.;': "' ,:.:ary Public dE,;;~!~) Lowe~~a~~'r:P.~~nty"" ~ .~,:j~' ';.:.' M~I Commission r.:xpiresJuly 12, 1993 ""r,;~,..~~.-.~.. ,...... CERTIFICATION OF RESIDENCE I, 4n..Lj7IAi f ~'c:JI%<J, v ) IX WlY'Cfer 0/ IJ..Jj, tC/..P?J y of Mid Penn Bank, hereby certify that the precise residence of Mortgagee is 349 Union street, Millersburg, Pennsylvania 17061. rz:#1 (72:J/r W(LA1A../J I.eqc..O ;t) SSf , ;0 H-t.../6 F PJOY7gC? go,S' 9 Mn~1128 PACE 159 ;""",~~,-"" ,-" , ", , --~ i" "'T,'''I . . ... , ,J COMMONWEALTH OF PENNSYLVANIA j},. ~ /. ,1 J!.. j COUNTY OF (!:UI7a<.V~ ) ) ) SS: I I Recorded in the Office of the said county, on the ~ day of / ~der of;Deeds in and for , 1993, in RC~ /5"/ Book Volume j/)r , Page WITNESS my hand and seal of said office the day and year aforesaid. /:J~ A~~ ,- / tf ... Recorder , ~ - .. . .. , , ". rl '. '., . l '.. f ,..':.~<:fl'.'. ",", '-' , . .;} '.; - ' , .. , .. ~ ~ --' . 10 l\OO~ 112@ ICE 1 GO ~:.;;:_-~ ili~ '"'J ',,,....,",, ", ~ , ~-- ~, . .. . ,'" " r" EXHIBIT "A" ALL THAT CERTAIN apartment dwelling unit situated in Sunguild Condominium, Upper Allen Township, Cumberland County , Pennsylvania, being designated as unit No. 1075-1 in the Declaration, Code of Regulations and Declaration Plans of said condominium, recorded in the Recorder of Deeds Office of Cumberland County, pennsylvania in Miscellaneous Book 249, Page 784, and Miscellaneous Book 249, Page 810 and Plan Book 37, Page 23, respectively under the provisions of the unit Property Act of July 3, 1963, P.L. 196. TOGETHER with all right of title and interest, being a 1.4416% interest, of, in and to the Common Elements as more fully set forth in the aforesaid Declaration of Condominium and Declaration Plans. UNDER AND SUBJECT to all agreements, conditions, easements and restrictions of record and to the provisions, easements, covenants, and restrictions as contained in the Declaration, the Code of Regulations and the Declaration Plans. .. ,," Pennsylvani. J ,'JUIlt]' uf Cumberhmd SS ,.. .'~ ~i1 the ff' -" '\~ ",' :.., 0 loefortherecordi ,-j:.of>:L"f<';';';:!c/, ", Ii$;<'. ,,,,,cr,f9J1;\J_rnberflllnd County, p n~!l.~{:;. C;j',. . ~_"',,</{R{-LVof - Do.. ~_(,'~~~!':f1,,-~,;;;~_:;:;t~,>\,t>__ ',_ ,_ " .'.._ i+'; "'-,'_ ...,...", h . - '-.09 'iit::"--;Aj,4.~~,,,];..tw..:t~>,,;~'["I'" V , ' --, h" ""rnl ~<l ".III of ofT' ","''''''""",'',,,, ;,;;, - , ..; , t7'_ thilll dO I oj"',..t." . ", ~ da 1 Sl 7-./, :;1;\"'" : ~,r;:}1'~:,,~,{ J :: iiooK1128 PAtE 161 Fn'f_U, """T. ., "'-i' ,"~rd""" ~, .!- . - r ' , ~ " " ~ ~ '" -~ . .. , ~ ~- r ~ \lS ~ p p ~1. T -"~._.. >- ~- o c: .,.,. '--'- -of,~j fT)r,'j Z::::f~1 ZC~ (f) c,' .~.( ~.- r' '< :.eO b;. (1 )>- c: z :< C) c) "'j u -" -,.'; 5j -<: 9 .......... ........ \j ...... ...() -t:. /Q.. '- :-t ~ --- ~p :j ~ -::-1 .-< .,....) ',j) 2:::~: 9 :::> l1' 'llI-- illllJ~ __JJiLrfllQ,""", ~ ~~.~~mJiY;:WJf~[ "i1.1I1fl"",_ ( 1",rJi_~!~~'f!>i-;;:'",;"%~"~"'J-';""?H"+4""';--"!i?fHf#--~~~'!Wi1fiR1<i\"1~)(*~'iJ"""i",;\<!ijl'W:jlj#,w.;:~~IiWI,~-~_:n: Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA MID PENN BANK Vs. GORDON K. BANZHOFF AND MARY L. BANZHOFF, husband and wife, NO. 01- Is. If7 C,u'll y~ Defendants CIVIL ACTION - LAW To: Gordon K. Banzhoff and Mary L. Banzhoff, Defendants You are hereby notified that on 0('+. ;;L?:>, 2001, the following Judgment has been entered against you in the above-captioned case, Judgment in the amount of $42,900,00 which includes interest to October 8, 2001. DATE: Dc+ ;,)9, ;)(Y,>.f (J .I"'~ ) '2, ~ ~rothono~7- I hereby certify that the name and address of the proper persons to receive this notice under Pa, R, Civ. p, 236 is: Gordon K, Banzhoff Mary L. Banzhoff 245 25th Street Camp Hill, PA 17011 " A Gordon K. Banzhoff and Marv L. Banzhoff, Defendido/a Defendidos/as Por este medio se Ie esta notificando ue el de del 2001 - , el/la siguiente (Orden), (Decreto), (Fallo) ha sido anotado en contra suya en el caso mencionado en el epigrafe. FECHA: Protonotario G;\WPIOOC\CIV.FLEIMPB-Banzllo1r-Z.wpd ;;;~"-~:',~ '~",-,"'j- -.~'-,; .~- -', ., - ',-'--' 1"-- r- ~ :,~".,., -';I' .'" ,- -,-- 1.'.._ 'g, , 11;,~~, '" " Certifico que la siguiente direccion es la del defendido/a segun indicada en el certificado de residencia: Judgment in the amount of $42,900,00 which includes interest to October 8, 2001. Gordon K. Banzhoff Mary L Banzhoff 245 25th Street Camp Hill, PA 17011 , !r d,.. Christian S, Daghir, Es Abogado del Demand te O;\WP\DOC\CIV.FlEIMPB-Blmboif.z,.wpd " ,~-,-"-"'"-~-' ~ ".,' - ,-~ --.1 r "." ", ''''~:-I' " ~H " . >'-'~ _ L ,- - :P ~ _ __.." _""""_."_ ..',".'n~,~,,,,,,q- '.r.__~__ ~ "-~'" - ~~ ~ ,k", ~W ""_'~. m" - ,- ~-. <~ -,..,.. ,_,,>:.,.,.,_. _.'''' _"_r" ,_)'~!l!f_0'__~'~~~~~f:"li!,_"T:r_~__, ~~/f-;~r~~~-~~ I_~!~#:f! ;j.>$ Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA MID PENN BANK Vs. GORDON K. BANZHOFF AND MARY L. BANZHOFF, husband and wife, NO. 01-6187 Civil Term Defendants CIVIL ACTION - LAW PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly mark the judgement in the matter above-captioned satisfied and discontinued. Dated: February it, 2003 G:\WP\DOC~Civ,fle\MPB.Bam:hoff.2.wpd fl~}?~7::~0..._, '''-'':'(~._-'-0:'''''"',,~',.>"''-;,,;;';''~"''';,''*''''>- __~_.,' . c. ''''!''~C'''-':':'C'':''''I'''" '".-,_. 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