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HomeMy WebLinkAbout07-2260' KEEPER WOOD ALLEN He RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS OF TRUST COMPANY CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff C1VIL ACTION -LAW v. NO. ~ ~ 'a2~i~ ~ tc~ ~ l.~ ~~ CRIDER EXCAVATING, INC. CONFESSION OF JUDGMENT Defendant CONFESSION OF JUDGMENT By virtue of the authority conferred by the Note, 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 the Defendant for the sum of $56,335.62. ---~ ~---~ f Eugene E. Peplnsky, Jr. Attorney for Defendant by virtue of the authorization contained in the Note KEEPER WOOD ALLEN He RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS OF TRUST COMPANY CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION -LAW ~ -- V. N O. ~~ oZ-Z,~ a l~. t v ~ l,~ t _ ' " 1. CRIDER EXCAVATING, INC. CONFESSION OF JUDGMENT Defendant NOTICE OF DEFENDANT'S RIGHTS A judgment in the amount of $56,335.62 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 ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 KEEPER WOOD ALLEN & RAHAL, LLP ~7 l_:_.. By: ~ Eugene E. Pepinsky, Jr. Attorney I.D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Manufacturers and Traders Trust Company KEEPER WOOD ALLEN 8c RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS OF TRUST COMPANY CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION -LAW v. CRIDER EXCAVATING, INC. CONFESSION OF JUDGMENT Defendant COMPLAINT 1. Plaintiff Manufacturers and Traders Trust Company is a New York banking corporation, with an office at 213 Market Street, Harrisburg, Pennsylvania 17101. 2. Defendant Crider Excavating, Inc., a Pennsylvania corporation, whose address is 555 Bosler Avenue, Lemoyne, Pennsylvania 17043. 3. On or about February 13, 2003, Defendant, for good and valuable consideration, executed and delivered a Demand Purpose Promissory Note (the "Note"). A true and correct copy of said Note is attached hereto, made a part hereof and marked Exhibit "A". 4. The Note referred to in Paragraph 3 above has not been assigned by Plaintiff to any person or organization. 5. Judgment has not been entered on the Note referred to in Paragraph 3 above in any jurisdiction. 6. The Note provides that Plaintiff may confess judgment against Defendant for the full principal balance, plus interest, late charges, costs of suit and an attorney's commission of 15%, at any time after a default. 7. The Defendant's obligations are in default, among other things, by reason of its failure to make the payment(s) due to Plaintiff. KEEPER WOOD ALLEN 8c fViHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 8. The amount due on the Note as of April 5, 2007, is $48,987.62. 10. This confession of judgment is not being filed against a natural person(s) in regards to a consumer credit transaction. WHEREFORE, Plaintiff demands judgment against Defendant in the sum of $56,335.62, together with interest as may hereafter accrue and costs of suit. KEEPER WOOD ALLEN & RAHAL, LLP Date: April 5, 2007 gy; ~~~ ene E. Pepinsky, Jr. Attorney I.D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff KEEPER WOOD ALLEN & RHHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 VERIFICATION The undersigned Jeffrey S. Linden, hereby verifies and states that: 1. He is Assistant Vice President of Manufacturers and Traders Trust Company, Plaintiff herein; 2. He is authorized to make this Verification on its behalf; 3. The facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief; and 4. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. % I ~r Jeffrey S. Linden Dated: April , 2007 ' - , allfirst ~ 50,000.00 York. Penns ~-~lt C, ~i : r~ ~>-'-~c_ c~~~ ~ OBLGR#: 9940163643 ALL DOC TYPE: CRIDER EXCAVATI OBL6T#: 0000000001 DEMAND BUSINESS PURPOSE PROMISSORY NOTE FOR VALUE RECEIVED, the undersigned Borrower" COMMENT $ : 50 , 000.00 otticzs at 1123 N. George Street, 1`orl:, Pennsylvania )1F DATE : i{ /,/3/ p_ j :-chartered commercial bank ("Bank"), at Bank's 00/100 Dollars (550,000.00), or such other amount as may ~„ ,,,,,,,,,,,,,,, ,,,,, ignate, the principal sum of Fifty Thousand and and any and all other sums which may be owing to Bank by Borrower pursuant~to this Promissory~Note~ 1-he following teens shall apply to this P omissory Note.tter specified 1. INTEREST. From the date hereof until all sums due hereunder, including principal, intereSC, charges, fees and expenses are paid in full, the principal amount outstanding from time to time pursuant to this Promissory Note shall bear interest as follows: Fluctuating Rate. At a fluctuating rate equal to 2.00000% per annum above the greater ot'. (i) that rate announced from time to time by Bank as its "prime rate" or (ii) the avtraee rate, rounded to the nearest 1/10th of 1 %, for 3-month maturity dealer placed commercial paper ("Commercial Paper Rate") for the week most recently reported in the Federal Reserve Statistical Release No.H.lS(519), entitled "Selected Interest Rates," or any succeeding publication; provided tl1a[ the Interest on this PronliSSOry Note §hall never be less than the rate that is 1% per annum above the Commercial Paper Pate. Bank at its discretion may charge a lesser rate from time to time. Interest on rho principal amount outstanding shall be adjusted daily with the rate for each day being the rate in effect at the close of business on that day. Bank makes loans at interest ratzs at, above and bzlow its prime rate. 2. CALCLiLATION OF INTEREST. Interest shall be calculated on the basis of a three hundred sixty (360) days per year factor applied to the actual number of days on which [here exists an unpaid balance herounder. 3. REPAYDIENT. Borrower shall make payments of principal and interest as follows: (a) Pt•incipal: Borrower shall make payments of principal in full on demand by Bank, which :nay be made at any time, without notice, and without re¢azd to whether a dzfautt has occurred. (b) Interest: Borrower shall make monthly payments of all accrued and utipaid interest on the ~tlr~day of each successive month, beginning on 11jar'ch -15, 2003, and continuing until the maturity of this Promissory Note (whether upon demand, stated maturity, acceleration or otherwise) at which time all sums due hereunder, including principal, interest, chazges, fees and expenses, shall be paid in ~ulh All amounts owed to Bank hereunder shall be payable in immediately available funds by preauthorized debit of Account number ' /'~/4 / agrees to maintain a balance in the above-described account which is at least equal to the payment amount on each payment due date. Borrower ~. LATE PAV`i1tENT CHARGE. If any payment due hereunder (including any payment in whole or in part of principal) is not received by the holder within fifteen (Li) calendar days after its due date, Borrower shall pay a late payment charge equal to five percent (5%) of the amount then due. i. CONFESSION OF JUDGb1ENT. Borrower irrevocably and unconditionally authorizes and empowers any attorney admitted to practice before any court of record in the United States to appear oo behalf of Borrower in any court in one or more proceedings, or before any clerl: thereof or prothonotary or other court official, and to appear for, confess and enter judgment against Borrower at any time, whether before or after the occurrence of any default hereunder, with or without averment of default, with or without complaint tiled, and without prior notice to or opportunity of Borrower for prior hearing, in favor of Bank in the full amount of the indebtedness evidenced by this Promissory Note (including principal, accrued interest and any and all charges, fees and expenses) plus court costs, plus attorneys' fees equal to fifteen percent (15%) of the unpaid balance of principal, interest, charges, and other sums due or which may become due hereunder, with release of all errors and without right of appeal In addition to all other courts in which judgment may be confessed against Bon•owcr upon this Promissory Note, Borrower agrees that venue and jurisdiction shall be proper in tl-c courts of any county or city of the Commonwealth of Pennsylvania or in the United States District Court for the i4liddle DisU•ict of Pennsylvania. Borrower waives the benefit of any and every statute, ordinance, or rule of court, Fvhcthcr now in force or ppr•aisctnent, stay of t~xecut oneor supplementary proceedinagsf orl other relief from thg enfarc ntent~ortimmcditctenfoi~ccmcnt of a judgment'or related proe edinA s on a 'ud me g ~ g nt. (To the extent prohibited by applicable law, any judgment obtained by confession shall not constitute a lien on any real property located in Pennsylvania which is the residence of any Borrower.) The authority and power to appear for and enter judgment against Borrower shall not be exhausted by one or more exercises thereof, or by any imperfect exercise thereof, and shall not be extinguished by any judgment entered pursuant thereto; such authority and power may be exercised on one or more occasions from time to time, in the same m• different jurisdictions, as often as the holder shall deem necessary or advisable. BORROWER HEREBI' ACKNOWLEDGES TFI~T THE CONFESSION OF JUDGi1~lENT PROVISIONS HEREIN CONTAINED WHICIi AFFECT AND WAIVE CERTAIN LEGAL RIGIITS OF BORROWER HAVE BEEN READ, UNDERSTOOll AND VOLUNTARILI' AGREED TO BY BORROWER. 6. APPLICATION OF PAYi1iENTS. All payments made pursuant to this Promissory Note shall be applied first to accrued and unpaid interest, then to unpaid expenses and charges payable hereunder, and then to principal, or in such other order or proportion as the holder, in the holder's sole discretion, may elect from time to time. 7. SECURITI'. Sums due under this Promissory Note are secured by, and Borrower pledges and grants to Bank a security interest in, all deposit accounts and deposits or property of Borrower now or at any time hereafter in the possession of or on deposit with Bank whether as custodian or depository or in any other capacity. In addition, this Promissory Note is secured by any property described as collateral in any security agreement, mortgage, deed of Crust, pledge agreement or other document previously, simultaneously, or hereafter entered into by Borrower in connection with any obligation or liability oP Borrower to Bank or any corporate affiliate of Bank, under or in comtect:er. ',ettl; his Prcmisso~~ Naz, and all renewals, refinancings, e~acns:ons, sub ;itutic:~s, an;en;imi;.^,CS and modifications Chereet; such ether security docume, ,(sl includin, but not limited to the following: Security Agreement(s) specifically above. This Promissory Note specifically incorporates by reference, as if filly set forth herein, all of the language and provisions of the security documents described generally or 8. DEFAULT. Any of diz following will be a default under this Promissory Note: (a) failure [o pay any principal, expense, charge, fee or interest when due, or failure to pzrtonn any other obligations hereunder, (b) a default by any Borrower upon any of the existing or tirture obligations of any Borrower to Bank; c a default b an or other person that is now or hereafter liable upon or in connection with any of the obligations of any Borrower to Bank or that has granted any lien or security interest to or for the benefit of Bank to secure any of the obligations of any Borrower to Bank ("Other Obligor"), upon any of the existing or future obligations of any Other Obl gorttoo Bank; (d) a default in any other agreement, instrument or document between any Borrower or Ocher Obligor and Bank, or any corporate ai'fiBate of Bank, including, without limitation, any security document referred to above, whether previously, simultaneously, or hereafter entered into; (e) a material adverse change itt the financial condition of any Borrower or Other Obligor from that expressed in the financial statement most recently submitted ro Bank prior to the date of this Promissory Note, as determined in good faith by Bank in its sole discretion; (t) institution of bankruptcy, insolvency, reorganization or receivership proceedings by or against any Borrower or Other Obligor in anv state nr federal rnnrr• !al rh,. ~,,,,,,:,,,.„,,,,,,.•„ ____;_.__ ___ _ _ . a t7. ~.SSIGNABILITY. This Promissory Note may be assigned by Bank or any holder at any time. Borrower shall not have the right to assign its rights hereunder or any interests herein without the prior written consent of Bank. 18. JOINT AND SEVERAL LIABILITY. If more than one person or entity is executing this Promissory Note as Borrower, all liabilities under this Promissory Note shall bejoint and several with respect to each of such persons or entities. 19. BINDING NATURE. This Promissory Note shall inure to the benefit of and be enforceable by Bank and Bank's successors and assigns and any other person to whom Bank may grant an interest in Borrower's obligations to Bank, and shall be binding and enforceable against Borrower and Borrower's personal representatives, successors and assigns. ?0. INVALIDITY OF ANY PART. If any provision or part of any provision of this Promissory Note shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforeeabiliry shall not affect any other provisions of this Promissory Note and this Promissory Note shall be construed as if such invalid, illegal or unenforceable provision or part thereof had never been contained herein, but only to the extent of its invalidity, illegality or unenforceability. 21. AL•1\IirlUnt R•1TE OF INTEREST; CONID4ERCIAL LOAN. Notwithstanding any provision of this Promissory Note to the contrary, Borrower shall not be obligated to pay interest hereunder in excess of the maximum rate of interest permitted by the laws of any state determined to govern this Promissory Note or the laws of the United States applicable to loans in such state. If ally provision of this Promissory Note shall ever be construed to require the payment ofany amount of interest in excess of that permitted by applicable law, then the interest to be paid hereunder shall be held subject to reduction to the amount allowed under applicable law, and any sums paid in excess of the interest rate allowed by law shall be applied in reduction of the principal balance outstanding under this Promissory Note. Borrower acknowledges that it has been contemplated at all times by Borrower that the laws of the Commonwealth of Pennsylvania will govern the maximum rate of interest that it is permissible for the Bank to charge Borrower under this Promissory Note, Borrower warrants that this Promissory Note evidences a loan made solely to acquire or to carry on a business or commercial enterprise. 22. CHOICE OF LA1V; CONSENT TO VENUE AND JURISDICTION. This Promissory Note shall be governed, construed and interpreted in accordance with the laws of the Commonwealth of Pennsyh~ania, even if the Pennsylvania rules governing conflicts of laws would otherwise require that the taws of another jurisdiction govern this Promissory Note. Bonower consents to the jurisdiction and venue of the courts of any county m• city in the Commonwealth of Pennsylvania, and to the jurisdiction and venue of the United States District Court for the Middle District of Pennsylvania in any action or judicial proceeding brought to enforce, construe or interpret this Promissory Note. 23. UNCONDITIONAL OBLIGATIONS. Borrower's obligations under this Promissory Note shall be the absolute and unconditional duties and obligations of Borrower and shall be independent of any right, of set-oft; recoupment or counterclaim which Borrower might otherwise have against the Bank, and Borrower shall pay absolutely the payments of principal, interest, fees, chazges, and expenses required hereunder, free ofany deductions and without abatement, diminution or set-off. •i ACTIONS .AGAINST BAND. Any action brought by Borrower against Bank which is based, directly or indirectly, or in whole or in part, upon this Promissory Note or any matter related to this Promissory Note shall be brought only in the courts of the Commonwealth of Pcuusylvanix. 25. AAIENDDIENTS, NO 1VAIVER, ETC. This Promissory Note may be amended only by a writing duly executed by Borrower and Bank. No waiver by Bank ofany of the provisions of this Promissory Note or any of the rights or remedies of Bank with respect hereto shall be effective or enforceable unless in writing. No indulgence or delay on the pan o[ Bank in exercising any power, privilege or right hereunder or under any other agreement executed by Borrower to Batik in connection herewith shall operate as a waiver [hereof. No single or partial exercise ofany power, privilege or right shall preclude other or tttrther exercise thereof, or the exercise ofany other power, privilege or right. No conduct, custom or course of dealing shall be effective to waive, amend, modify or release this Promissory Note or any of the terms and conditions hereof. This Promissory Note consuwtes the complete and exclusive expression of the terms of the agreement between the parties with respect to the subject matter set forth herein, and supersedes all prior or contemporaneous communications between the parties relating to the subject matter of this Promissory Note. 3G. OTHER 1VAIVERS, ETC. In the event Bank has been granted a lien or security interest as collateral for the amounts owed under this Promissory Note by a parry other than Borrower ("Other Collateral"), Borrower acknowledges and agrees that the documents evidencing such lien or security interest may modify existing law and modify, waive or explain the righU and duties of the parties thereto. To the extent Borrower qualities as an "obligor" within the meaning of the Uniform Commercial Code-Secured Transactions, as amended ("UCC"), or any sunilaz law of any other state or territory with respect to the Other Collateral and, as a result thereof; the UCC or similar law confers any rights on Borrower or imposes any duties on Bank with respect to Borrower, Borrower agrees that such rights and duties have been modified, waived or explained to the same extent, and in the same manner, that the party providing the Other Collateral has agreed to modii'y, waive, or explain its corresponding rights and/or any corresponding duties owed to it by Bank. 37. 11`AIVER OF JURY TRI_~L. Borrower (by execution of this Promissory Note) and Bank (by acceptance of this Promissory Notc) agree that any suit, action, or ptooceeding, whether claim or counterclaim, brought or instituted by Borrower ot• Bank orr or• with t•cspcct to [Iris Promissory Note or• which in any vvay relates, directly or indirectly, to the obligations of Bortoower• to Bank under this Pt•omissory Note, or the dealings of the parties ~vitlr respect thereto, shall be tr•icd only by a judge and not by jury. Borrower and Bank hereby expressly waive any right to a h•ial by jury in any such suit, action, or proceeding. Borrower and Bank acknowledge and agree [hat this provision is a specific and material aspect of the agreement bchvccn the parties and that Bank would not enter into the U ansaction Fvith Bm•rower if this provision were not a part of their agreement. !N WITNESS WHEREOF, and intending to be legally bound hereby, the undersiened execute ri,~c ~~„~„~~~n.,, r,,,.e .._~__ ___ above. .. WITNESS OR ATTEST*: *Note: Attestation of a corporate ofticet's capacity to sign by another corporate officer is required in all corporate transactions. BORROWER: _ '-i /p ~ Crider cavati g, I ~ (Stynature) -~~ ~ B ,. ~ ~ ~ J SEAL, ~ (Authorised Signet) ( ) (Pant Name) Richard D. Crider, President 1 ~~ ~~~ ; -1 ~~ J (Print Name nd Title) _ (Stgnature) (~ 13 (SEAL) (Authori d Signer) ~oyisc f' S' /dE.° (Print Name) Donna M. Crider, Secretary/Treasurer (Print Name and Trtle) Q rirlrecc• G,: Rn„• Rncle~ e..., ' KEEPER WOOD ALLEN & RHHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 MANUFACTURERS AND TRADERS TRUST COMPANY Plaintiff v. CRIDER EXCAVATING, INC. Defendant NOTICE To: CRIDER EXCAVATING, INC., Defendant CIVIL ACTION -LAW CONFESSION OF JUDGMENT You are hereby notified that on April, 2007, judgment by confession was entered against you in the sum of $56,335.62 in the above captioned case. Dated: April ~, 2007 Pr honota 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. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 I hereby certify that the following is the address of the defendant(s) stated in the certificate of residence. Crider Excavating, Inc. 555 Bosler Avenue Lemoyne, PA 17043 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA A ' me or Plaintiff(s) KEEPER WOOD ALLEN 8c fV1HAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 MANUFACTURERS AND TRADERS TRUST COMPANY Plaintiff v. CRIDER EXCAVATING, INC. Defendant CRIDER EXCAVATING, INC., Defendido IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. CONFESSION OF JUDGMENT NOTICE Usted esta siendo notificando que el de April del 2007, se anoto en contra suya un fallo por confesion en la sums de $56,335.62 en el caso mencionado en el epigrafe. FECHA: April , 2007 Pr honotary USTED DEBE LLEVAR IMMEDIATAMENTE ESTE DOCUMENTO A SU ABOGADO. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARR AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 S. Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 Certifico que la siguiente direccion es la del defendido/a segun indicada en el certificado de residencia: Crider Excavating, Inc. 555 Bosler Avenue Lemoyne, PA 17043 ~~~ Attorne fo Plaintiff(s) ~ ~ ~ ~ ~. ~ ~ d ~' ~' ~ ~ ~- 4~ ~,Z1~ ~ f1"1 i ^ _ "'Y7 ~= ~ g t.~ '~ ra ~ -G C~