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HomeMy WebLinkAbout99-07062_ _i _. .. q ?.. era ?'?? l 1tj I . ?Y?-• . } I ,?+ .? Y? ,.?., K IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JOHN E. LOOBEY Plaintiff NO. m4-- 7o6a v. ERIC E HOLLAND Defendant G'L-z RULE 236 NOTICE OF ENTRY OF ORDER DECREE OF IUDGMENT TO: Eric Holland Eric Holland 1137 Columbus Avenue, Apt. #5 13 East High Street Lemoyne, PA 17043 Carlisle, PA 17013 AND NOW THIS A3W-day of `'? 1999, pursuant to Pa.R.C.P. 236 of the Supreme Court of Pennsylvania you are hereby notified that judgment by Confession in the amount of $13,872.40 has been entered in favor of the Plaintiff, John E. Loobey, and against the Defendant, Cooper & Holland, Inc. The following parties are entitled to receive notice under Pa. R.C.P. 236(x)(2). Eric Holland Eric Holland 1137 Columbus Avenue, Apt. #5 13 East High Street Lemoyne, PA 17043 Carlisle, PA 17013 IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PLEASE CALL ATTORNEY: JONATHAN M. CRIST, ESQUIRE at this telephone number: (717) 761-1880. /-V - k ? Prothonotary 51561 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JOHN E. LOOBEY Plaintiff V. ERIC E HOLLAND Defendant NO. y - -70&a &'O'. L CONFESSION OF JUDGMENT To the Prothonotary: Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the complaint filed in this action, I appear for the defendant and confess judgment in favor of the plaintiff and against defendant as follows: Principal $13,099.64 Interest 117.78 Attorney fees 654.98 Total $j 2 q 51550 II IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JOHN E. LOOBEY, Plaintiff V. NO.: !9• '706,Z CIv ERIC E. HOLLAND, Defendant COMPLAINT FOR CONFESSION OF TUDGMENT PURSUANT TO PENNSYLVANIA RULE OF CIVIL PROCEDURE 2952 1. Plaintiff is John E. Loobey, an adult individual with an address of 186 Peoples Road, Bristol, Tennessee 36620. 2. Defendant is Eric E. Holland, an adult individual with an address of 1137 Columbus Avenue, Apartment 5, Lemoyne, Pennsylvania 17043. 3. A true and correct reproduction of the original GUARANTY AND SURETYSHIP AGREEMENT WITH POWER TO CONFESS JUDGMENT, dated March 21,1996 (the "instrument'), is attached hereto as Exhibit "A". 4. The instrument was executed as a fifty (50%) percent guaranty of the obligations under a certain Installment Judgment Note, dated March 21, 1996 (the "Installment Judgment Note"), between John Loobey as Holder and Cooper & Holland, Inc. as Debtor, a copy of which is attached hereto as Exhibit "B". The Installment Judgment Note was executed to secure the purchase by Cooper & Holland, Inc. of the assets of a sole proprietorship formerly operated by Plaintiff, John E. Loobey, under the tradename or designation Sgt. Yorks Friendly War Games pursuant to a certain Sales Agreement dated April 1, 1996, attached hereto as Exhibit "C. 5. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 6. The instrument has not been assigned. 51537 7. Judgment has not been entered on the instrument in any jurisdiction. 8. The balance of the obligation under the Installment Judgment Note, attached as Exhibit "B", was accelerated due to the failure of Cooper & Holland, Inc. to make the required monthly payments for August 30,1999, and September 30,1999, after notice of default and the expiration of a fifteen (15) day cure period. A copy of the DEFAULT NOTICE is attached hereto as Exhibit "D". 9. Plaintiff makes demand for judgment in the total sum of $13,872.40. In accordance with the warrant of attorney as follows: Principal Sum $13,099.64 Interest 117.78 Attorney's Fee (5%) 654.98 TOTAL DUE 13 872.40 Respectfully submitted, LATSHA DAVIS & YORE, P. C. Dated: By. J than M. Crist, Esq. Attorney I.D. No. 29936 P. O. Box 825 Harrisburg, PA 17108-0825 (717) 761-1880 Attorney for the Plaintiff, John E. Loobey. 515,37 yr Ry? A GUARANTY AND SURETYS UP AG FEMENT WITH POWER TO CONIES JUDGMENT a4 1. To induce JOHN LOOBEY, ("Lender") to make a loan to -1L! COOPER AND HOLLAND, INC. ("Debtor") , the undersigned m._.UQHA^ H Ckcr e68PHR does hereby guarantee fifty (50%) percent and does hereby (+o?ku become surety for fifty (50%) percent of and timely payment of the principal, interest, on certain loan made by, Lender to COOPER AND HOLLAND, INC. and all extensions and renewals thereof together with any costs, expenses and attorney's fees incurred by Lender with respect to said loan. (Said loan is evidenced by the attached installment Judgemnt. Note executed by Debtor.) If this Guaranty and Suretyship Agreement is referred for collection to any attorney, Undersiggg??? ed?y. 11 pay. an 'attorney's fee equal to the lesser of (a)fore amount due or $500.00, whichever is greater, or ( ) the maximum amount permitted by law, and costs of legal proceedings. The Undersigned's obligations hereunder 'shall pbe ayap)le at Len er's residence at 2. This is a guaranty of payment and not merely of collection. In the event of any default by Debtor in payment or otherwise on any obligations, Undersigned will pay fifty (50%) percent of any portion of obligations due or thereafter becoming due, whether by acceleration or otherwise, without defalcation or offset of any kind, other than stated below, without Lender first being required to make demand upon Debtor or pursue any of its rights against Debtor, or against any other person, including other guarantors. Anv amount to b paid by Undersigned shad be reduced by any amount received by Lender from liquidation of inventory. In any right of action accruing to Lender, Lender may elect to proceed against (1) Undersigned together with Debtor (b) Undersigned and Debtor individually or (c) Undersigned only without having first commenced any action against Debtor. 3. Lender, without notice to Undersigned, may deal with obligations and any collateral security therefor in such manner as Lender may deem advisable and may renew or extend obligations or any part thereof; may accept partial payment, or settle, release, or compromise the same may demand additional collateral security for obligations, and substitute or release the same; and may compromise or settle with or release and discharge from liability any of the Undersigned'or any other guarantor of obligations, or any other person liable to Lender for all or part of the obligation all without impairing the liability of Undersigned hereunder. 4. Undersigned hereby unconditionally waivers: (a) notice of acceptance of this Guaranty and Suretyship Agreement by Lender and any notice of the incurring by Debtor or any obligations; (b) presentment for payment, notice of nonpayment, demand, protest, notice of protest and notice of dishonor or default to any party /A LXNia)l eluding Undersigned; (c) all other notices to ,.ay be daym nt easitae c onbutditiwhoich may legally be waived hl(d) demand gfor Suretyship Agreement of ; liability :under this Guaranty available to Debtor (e) any disability of Debtor or defense liability for an , including absence or cessation of Debtor's circumstance which mightawhatsoever; ( any e or discharge of a otherwise constitutefa legal ordefens equitable or federal st guarantor or surety; (g) all rights under any state creditors; and h dealing With or affecting the rights of ) until subrogation' ti, ons are paid in full or realization on aan any ri ht to any of Debt/o?r's assets i'L'Rso?in / 5• Undersigned warrants to Lender:' representation or special condition exi'no other-agreement Lender regarding the•liabilit sts between any understanding exist betwee of Undersigned hereunder obligations of Undexsi n Undersigned and nor does set out herein: 9ned hereunder are or will Lender that the defense whatsoever to b) as of the date. hereof Unders geed has no to enforce this Guaranty action or proceeding that may y and Suretyship Agreement, y be brought ,an 6- No y right; pofailure or delay on the part of Lender in exercising thereof; nor shall aprrivilege hereunder shall operate as a waiver Power or privilege her un er precludes any other or further exercise thereof, or the exercise of any other right, power or Failure by Lender to. insist upon strict not constitute to insist u on performance Privilege. constitute P strict erfo hereof shall mance a relinquishment of P ght t hereof shall not performance at another time. its right to demand strict any person on obligations Receipt Lender of any payment by obligation or of a breachwith knowledge of Agreement of this a default on any or both, shall not Guaranty and Suretyship default or breach. be construed as a waiver of the EFFECT . NE HIS G EASRSA UNTIL D SURETYSHIP AGREEMENT SHALL CONTINUE IN OF DEBTOR TO Lender ARE PAID; IT BEING COALL NT MPLA EDG THAT I DEBTORS MAY CREATE OR INCUR INDEBTEDNDEBT DNES , REPAY AND SUBSEQUENTLY PERMITTING THIS G UT NOTICE TO UNDERSIGNED, AND CREATE OR I UNDERSIGNED NCB EFFECT, SHALL BE Bpi pNTY AND SURETYSHIP AGREEMENT TO REMAIN IN B• This Guaranty and Suretyship Agreement is only and transferable by Lender with written consent of Undersigned, such consent not being assignable and obligations of Undersigned unreasonably withheld, however the dutie by Undersigned without the written not be delegated o. The and privileges of n consent of Lender. The rights successors Lender shall inure to the benefit of its Undersigned an shall assigns, and the duties and obligations of representatives, successors andUassignsned's heirs personal 9• If any provision hereof shall, for any reason, be held ialid or unenforceable, no other provision shall be affected .ereby, and this Guaranty and Suretyship Agreement shall be .)nstrued as if the invalid or unenforceable provision had never .)een a part of it. 10. This Guaranty and Suretyship Agreement shall in all respects be governed by the laws of the Commonwealth of Pennsylvania. 11. THE UNDERSIGNED HEREBY EMPOWERS •THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR THE UNDERSIGNED AND TO CONFESS JUDGMENT AS OFTEN-AS NECESSARY AGAINST UNDERSIGNED IN FAVOR TO-THE HOLDER HEREOF, AS OF ANY -TERM, FOR THE ABOVE SUM, PLUS INTEREST DUE UNDER THE TERMS HEREOF, TOGETHER WITH COSTS OF LEGAL PROCEEDINGS AND AN ATTORNEY'S COMMISSION EQUAL TO THE LESSER OF: FIVE PERCENT (5%) OF THE ABOVE' SUM' AND THE INTEREST THEN DUE HEREUNDER OR $500.00, WHICHEVER IS GREATER, WITH RELEASE OF ALL ERRORS. WITNESS the due execution hereof intending to be legally bound this 2f day of 1996. WITNESS: ?? ice.,,, ,. ?l. ??.w, .•: 47 Charles E. Holland 1: LytiAf.O ?:. U::iIL?'!, tiOTA!2Y PUSLIO F?-R4IANAC.!!'n'A'..:JN!A.TA C:OUi4TY. FA -.IY rMO.C,S ;^U JUN=25, im"i ; INSTALLMENT JUDGMENT NOTE Principal Amount: $ A, THIS AGREEMENT, made this _ day of i'. A, A;;( 11 1996, between JOHN LOOBEY (hereinafter called "Holder") and COOPER AND HOLLAND, INC. of Lemoyne, Pennsylvania (hereinafter called "Debtor"). WITNESSETH: WHEREAS, the Debtor owes certain sums to Holder and client has requested that these sums be paid in installments with interest as set forth below. WITH THE INTENT TO BE LEGALLY BOUND, the parties agree as follows: FOR VALUE RECEIVED, the Debtor hereby promises to to the order of Holder the principal sum of -f' ;,\ to pay ?n/100 ($ follows: ) DOLLARS plus interest as Commencing the 30th day of April, 1996, and on the last day of each and every month thereafter for a total period of 121'?'' ( consecutive months, Debtor shall pay to older the monthly sum of six hundred fifty dollars and zero/100 .($650.00) and a final payment of balance and zero/100 ($ Balance), which includes interest at the rate of 5.97 (5.970;) percent per annum. 1. All payments are to be made to the Holder at 55 Medowbrook Court, New Cumberland, or such other place as the undersigned may be directed by the Holder. 2. At the option of the Holder, this Note, and all liabilities of the undersigned to the Holder, shall become immediately due and payable with notice of default to the Debtor and a fifteen day cure period upon the occurrence of any of the following events of default: Failure to make any payment and/or installment under the Note on any due date; in the event of the dissolution of the Debtor; or upon the filing by or against the Debtor of any petition or application in bankruptcy or state court receivership, whether voluntary or involuntary; or in the event of any type insolvency proceedings by or against the Debtor; or the failure of the Debtor to comply with any of the terms and promises as contained in this Note. 3. No delay or omission on the part of the Holder in exercising any right hereunder shall operate as a waiver of such right or of any other right under this Note. A waiver /f 1) CKH161T B S n any one occasion shall not be construed as a bar to or waiver of any right and/or remedy on any future occasion. All remedies conferred upon the Holder by this Note, by any other instrument or agreement, or by law, shall be cumulative, and none is exclusive, and such remedies may be exercised concurrently or consecutively at the option of the Holder. 4. The Debtor expressly waives presentment, protest, demand, notice of dishonor or default, and notice of any kind with respect to the Note or any of the obligations under this Note. No renewal or extension of this Note, no release or surrender of any collateral or other security for this Note, no release of any person liable on this Note, no delay in the enforcement of payment of this Note, and no delay or omission in exercising any right or power under this Note shall affect the liability of the Debtor. 5. The Debtor does hereby empower any attorney or any court or record within the United States or elsewhere, to appear for the Debtor and with or without declaration filed, and with notice of default by the Debtor and failure of the Debtor to cure such default, as set forth above, confess judgment against the Debtor, and in favor of said Holder, their executors, administrators, successors or assigns, as of any term for the above sum, with costs of suit and attorney's commissions of five (5%) percent for collection and release of all errors, and without stay of execution and inquisition and extension upon any levy is hereby waived, and condemnation agreed to and the exemption of all properly from levy and sale on any execution hereon, is also hereby expressly waived, and no benefit of exemption be claimed under and by virtue of any exemption law now in force of which may hereafter be passed. A photocopy of this Note may be used for filing purposes or in an action to enforce payment hereof. 6. The Debtor expressly agroes to be legally bound hereby and expressly intends this document to be a sealed instrument. 7. If any term or provision of the Note or the application hereof to any party, person or circumstance, shall to any extent be invalid or unenforceable, the remainder of the Note, or the application of such term or provision to the party, persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Note shall be valid and be enforced to the fullest extend permitted by law. 8. This obligation shall be binding upon the Debtor, their heirs, executors, administrators, successors and assigns; the Note shall inure to the benefit of the Holder, its successors and assigns. ,Y IN WITNESS WHEREOF, the undersigned have executed this Note of the day, month and year above mentioned. WITNE l Ste' '1Y7 Charles E. Hof and LLL-??? ATTEST: B Secretary J NOTARIAL SEAL RONALD E. YODER, Notary Public Fermanagh Two.. Junlata County. PA Ny Commission Expires April 13_1998 (holder) (SEAL) Edward E. Dudley Sales Agreement April 1, 1996 John Loobey, further defined as the seller, agrees to transfer the ownership of the business of Sgt. York's Friendly War Games, further defined as the business, to Cooper and Holland, Inc. further defined as the buyer, on April 1, 1996. The sales price of the business is i 6t "000.00. The seller agrees to finance the amount of the note less a down + payment of $20,000.00 by the buyer. The amount of Us note is $ ,000.00. ? Store Local ion- y/OjQOU o?.?fC`?? l7? 900 Market Street Leymone, PA 17043 ' Field Location: Shoop Road Halifax, PA The seller assumes liability for all activities related to the business and sole proprietorship known as Sgt. York's Friendly War Games that may have or did occurred prior to April 1, 1996. This is inclusive of but not limited to injury claims, product liability claims, sales taxes, state taxes, local taxes, federal income taxes and damage claims for activities prior to April 1, 1996. The assets of business are defined as the following: The ownership of the name of Sgt. York's Friendly War Games 100 Sets of field PaintBall equipment (guns, loaders, tanks and goggles) Inventory valued at $ ¢6,000{.00 Cash of $5,000.00 'Ito V is C? C02 Tanks (I - 75lbs, 4 - 50lbs and t - 301b All store display fixtures Hand Truck Cash Register 2 Scuba Tanks I High Pressure Nitrogen Fill Station 1 Low Pressure Nitrogen Fill Station 1 Lawn Mower and Snow Blower 1 Generator Misc. Business Equipment that resides at the store and field locations on April 1, 1996. ?xNIP? i i SIC I In installments as herein stated, for the business its assets and name, the payee promises to pay to John Loobey at 55 Medowbrook Court, New Cumperland, PA the sum of 1 $,0000:03 principal payable in installments of $ 650.00 on the 30th day of April and ,i onnen' Mg until the unpaid balance of principal and interest shale be paid in full. The seller assumes responsibility for all accounts payable items and expenses incurred by the business prior to April 1, 1996. Should the seller not assume this responsibility the buyer reserves the right to deduct these payable amounts and expenses from payments to the seller. The seller agrees to transfer all pre-payments to the buyer received by the business for but not limited to'pre-payments for tournaments received prior to April 1, 1996. If this note is not paid when due, the undersigned promises to pay in addition all cost of collections and reasonable attorneys fees incurred by the seller hereof on account of such collection, whether or not suit is filed hereon. Privilege is reserved by the payee to pay the within note in full at any time by paying principal and accrued interest with no prepayment penalty. Should the buyer default on the note the seller is entitled to the balance of the note at the time of the default from the assets of the buyer, defined as Cooper and Holland, Inc. in addition to the transfer of ownership of the business and it's assets to the seller. On the happening to or by any maker of any of the following events, this note and all other obligations, direct or contingent, of any such maker or endorser hereof to buyer shall become due and payable immediately, without demand or notice; Making of any misrepresentation to the seller for the purpose of obtaining credit or extension of credit; any assignment for the benefit of creditors; voluntary or involuntary application for, or appointment of, a receiver; filing a voluntary or involuntary petition under any of the previsions of the federal bankruptcy laws: death: or, if at any time at the sole desecration of the seller, the buyers financial responsibility shale become impaired or unsatisfactory to the seller. Each maker consents to renewals, replacements, and, extensions for payments hereof f this note, if any, before, and be maderin the lawful waives demand and protests. All P ymentspthereunde security, A money of the United States. Executed this. 1 st day of April, 1996 at Lemoyne, PA. Thomas E. Cooper President Charles Eric Holland Executive Vice. President Agreed to the 1 st day of Aot,"1996 at Leymoyne, PA. By John Loobey NOTARIAL OEAI. EDWARD E. DUOLEY, NoTARY HL t!.- FERMANAGH TWP., JUNIAtAC*Ulh'f, c MY CGMMMIM EV0111 JU4 231:1}:' LATSHA U' IS ?rn,h: L. Lata,a & YOHE P C CLmgla• C.li,hc.. G R• . . McKc ATTORNEYS AT LAW Innnthao M. Grist Rulvn E. Sinkin Edward G. Chem. P-,'; ASE REPLY TO, Harrisburg ' D:n•id C. \larshali WRITER S E. MAIL: 1crlst@ld3'law.com Karin S. Gutshall Steven M. Montresa;- Chrimnc L. 5udloo° October 7,1999 Cooper and Holland, Inc. c/o Sgt. York's Attention: Eric Holland 402 Market Street Lemoyne, Pa 1704; Re: Installment Judgment Note With John Loobev Current Balance Due: $36,199.26 Our File No. 515-99 Dear Mr. Holland: The above-referenced obligation has been referred to our office for timely collection. According to our client, John Loobey, Cooper and Holland, Inc., is in serious default for failure to make the August 10, 1999, and September -00, 101199, payments in the amount of $650.00 each. Please be advised that if payment in full is not received by our office within fifteen (15) days of the date of this letter, our client has instructed us, pursuant to the terms of the installment Judgment Note, to declare the balance of the obligation of 526,199.36 in default and to enter judgment for that amount. If the balance of the obligation is accelerated as aforesaid, we have also been instructed to confess judgment against both Charles E. Holland and Edward E. Dudley for 50 percent of the obligation pursuant to their Guaranty and Suretyship Agreements. Post Ohi:e S.v 535 • Harrisburc. RA 17105.0525 4730 Oid Gernsburg Road. Suite 101 • Mechanicsburg. RA 1735 • (717) 761•ISSC • E-%X (717) 761•2356 Great Valley Parl:uw. suite 231 • \)ah•ern. C4 19355 • (610) 351.6955 • &,X (610) 4:7.9365 350 Atnurn \Mayt Suire 3s l • Mt. Laurel. NJ 0505; • (609) _'31.5351 • FAX (60?) :73-6913 A`.an'Innd Telephone: (410) 737.3$10 e)(4 ilk 1 T ((? r Cooper and Holland, Inc. August 25,1999 Page 2 11'e would be more than happy to discuss this matter with you or )your legal representative at any time. Ven• truly yyoours,?? than M. Crist JIMC:jah cc: Charles E. Holland Edward E. Dudley John Loobey THIS LETTER IS FOR COLLECTION OF A DEBT AND ALL INFORMATION OBTAINED 11'ILL BE USED THAT PURPOSE. 49738.1 FROM :LRTSH9 DAV IS & YOHE. P. C. 0717) 751-2255 1999.11-02 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA JOI-IIV E. LOOBEY Plaintiff 17:79 dA77 P. IS/15 NO. V. ERIC E FIOLLAND Defendant VERIFICATION The above COMPLAINT is based upon infornia tion which I have furnished to my counsel and information which has been gathered by my counsel in preparation of this matter. The language of the COMPLAINT is that of counsel and not of me. I have read the COMPLAINT and to the extent that the COMPLAINT is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information, and belief. To the extent that the content of the COMPLAINT is that of counsel, l have relied upon counsel in making this verification. I hereby acknowledge that the facts set forth in the aforesaid COML PLAINT are made subject to penalties of 18 Pa. C.S. §4904 relating to unsti Date: __LL- - 92- 51558 C d N ?i 7 tzo l? CIS: N