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HomeMy WebLinkAbout07-2762HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS[ TRUST COMPANY, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff :CIVIL ACTION -LAW vs. No. O7 - o2`7G~, ~ rc~c.~ . 4~ 827 W. TRINDLE PARTNERS, a Pennsylvania General Partnership, Defendant CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, 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 as follows: Principal Sum Due - $ 109,000.00 Interest to 5/1/2007 - 7,282.57 Late Fees to 5/1 /2007 - 406.01 Attorney's Commission (10% of unpaid principal and interest) - 11,628.25 Total - $ 128,316.83 Plus all future accruing interest after entry of judgment and after May 1, 2007, and after entry of judgment at the contract rate ($43.15 per diem) until paid in full, additional late fees of Fifty Dollars ($50.00) per month accruing after the 16th day of each month, together with reasonable attorney's fees, bank costs and cost of suit, and all other amounts, fees, and costs due pursuant to the Note, including cost of preservation of the collateral. Prothonotary HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff vs. IN THE COURT OF COMMON PLEAS[ CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW /~ . 827 W. TRINDLE PARTNERS, a Pennsylvania General Partnership, Defendant COMPLAINT CONFESSION OF JUDGMENT 1. The Plaintiff is Manufacturers and Traders Trust Company, a New York banking corporation, with an office located at 213 Market Street, Troup Building _ 4tn Floor, Harrisburg, Pennsylvania 17101-2141. 2. The Defendant is 827 W. Trindle Partners, a Pennsylvania general partnership, with a business and mailing address c/o Gary W. Kopperman, 827 West Trindle Road, Camp Hill, Pennsylvania 17001 and c/o Morton S. Kopperman, 981 Ridgebury Drive, South Park, Pennsylvania 15129. 3. On November 1, 2004, the Plaintiff loaned to the Defendant the sum of One Hundred Nine Thousand Dollars ($109,000.00) as evidenced by a Demand Note (the "Note"), a true and correct copy of which is attached hereto as Exhibit "A" and incorporated herein by reference. 4. The Note and debt have not been assigned. 5. Judgment has not been entered on the Note in any jurisdiction. 6. Defendant is currently liable to Plaintiff as follows: Principal Sum Due - $ 109,000.00 Interest to 5/1/2007 - 7,282.57 Late Fees to 5/1/2007 - 406.01 Attorney's Commission (10% of unpaid principal and interest) - 11,628.25 Total - $ 128,316.83 Plus all future accruing interest after entry of judgment and after May 1, 2007, and after entry of judgment at the contract rate ($43.15 per diem) until paid in full, additional late fees of Fifty Dollars ($50.00) per month accruing after the 16th day of each month, together with reasonable attorney's fees, bank costs and cost of suit, and all other amounts, fees, and costs due pursuant to the Note, including cost of preservation of the collateral. 7. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 8. Attached hereto and incorporated herein as Exhibit "B" is the Notice to Defendant required by 42 Pa.C.S.A. §2737.1. WHEREFORE, Plaintiff requests that judgment be entered in favor of the - 2 - Plaintiff, Manufacturers and Traders Trust Company, and against the Defendant, 827 W. Trindle Partners, in the amount of: Principal Sum Due - $ 109,000.00 Interest to 5/1/2007 - 7,282.57 Late Fees to 5/1 /2007 - 406.01 Attorney's Commission (10% of unpaid principal and interest) - 11,628.25 Total - $ 128,316.83 Plus all future accruing interest after entry of judgment and after May 1, 2007, and after entry of judgment at the contract rate ($43.15 per diem) until paid in full, additional late fees of Fifty Dollars ($50.00) per month accruing after the 16th day of each month, together with reasonable attorney's fees, bank costs and cost of suit, and all other amounts, fees, and costs due pursuant to the Note, including cost of preservation of the collateral. HE By: 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 Attorney for Plaintiff - 3 - HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS[ CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW vs. 827 W. TRINDLE PARTNERS, a Pennsylvania General Partnership, Defendant No. AFFIDAVIT AS TO NON-MILITARY SERVICE AND CERTIFICATION OF LAST KNOWN ADDRESS OF DEFENDANT AND PLAINTIFF COMMONWEALTH OF PENNSYLVANIA COUNTY OF LEBANON ss. Before me the undersigned authority, personally appeared Marc A. Hess, who being duly sworn according to law, deposes and says that upon reasonable investigation to the best of his knowledge and belief the Defendant is not in the active Military or Naval Service of the United States of America and that the last known addresses of said Defendant are as follows: 827 W. Trindle Partners, a Pennsylvania general partnership, c/o Gary W. Kopperman, 827 West Trindle Road, Camp Hill, Pennsylvania 17001 and c/o Morton S. Kopperman, 981 Ridgebury Drive, South Park, Pennsylvania 15129. The address of the above Plaintiff is M&T Bank, Special Assets, 213 Market Street, Troup Building - 4th I and subsc 'bed to before me day of , 2007. / _ Notary Public CC;VIMONWEALTt-I O~ Fi!ENNSYL~t'ANI NOTARIAL S~ PATRICIA L. YOUNG, Notary Public City of Lebanon, Lebanon County °;~y Commission Expires December 17, 2009 - 2 - 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 NOTICE TO THE DEBTOR/DEFENDANT AS REQUIRED BY 42 Pa.C.S.A. X2756 To: 827 W. Trindle Partners c/o Gary W. Kopperman, Partner 827 West Trindle Road Camp Hill, PA 17001 827 W. Trindle Partners c/o Morton S. Kopperman, Partner 981 Ridgebury Drive South Park, PA 15129 Attached hereto you will find a copy of Pennsylvania Rule of Civil Procedure 2959 which provides instructions regarding the procedure to follow to request the Court strike or open a confessed judgment. You should be further advised that any party to a confessed judgment which has been incorrectly identified is entitled to costs and reasonable attorney's fees as determined by the Court. MARC A. HESS Attorney for Manufacturers and Traders Trust Company COMMONWEALTH OF PENNSYLVANIA ss: COUNTY OF DAUPHIN Kenneth L. Milliken, Vice President, of Manufacturers and Traders Trust Company, being duly sworn according to law, deposes and says that he has authority to sign this Affidavit on behalf of Manufacturers and Traders Trust Company and that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief; and that the copy of the Demand Note, Exhibit "A" attached to the Complaint, is a true and correct copy of the original which is held in the files of the Plaintiff and which was executed and delivered by the Defendant to Plaintiff. MANUFACTURERS AND TRADERS TRUST COMPANY By: ~~~rT/~ii`~~'~ Kenneth L. Milliken Vice President Sworn and subscribed to before me this day of 2007. No ary Pu COMMONWEALTH OF PENNSYLVANIA Notarial Seal Jennifer L. Artderbery, Notary Public City Of Hartislwrg, Dauphin County My Cornmisaion Expires Oct. 20, 20~ o Member, Pennsylvania Association of Notaries M~TB-y~_ DEMAND NOTE ~j ~j~ Pennsylvania Manufacturers and Traders Trust Company November 1, 2004 $ 109,000.00 BORROWER: 827 W. TRINDLE PARTNERS, a general partnership organized under the laws of Pennsylvania Address of chief executive office: 827 West Trindle Road, Mechanicsburg, Pennsylvania 17055 BANK: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation with bahking offices at One M&T Plaza, Buffalo, New York 14240 Attention: Office of General Counsel Promise to Pay. For value received, and intending to be legally bound, Borrower promises to pay to the order of the Bank on demand the principal sum of ONE HUNDRED NINE THOUSAND DOLLARS AND NO CENTS ($109,000.00) plus interest as agreed below and all fees and costs (including without limitation attorneys' fees and disbursements whether for internal or outside counsel) the Bank incurs in order to collect any amount due under this Note, to negotiate or document a workout or restructuring, or to preserve its rights or realize upon any guaranty or other security for the payment of this Note ("Expenses"). Interest. The unpaid principal balance of this Note shall earn interest each day calculated on the basis of a 360-day year for the actual number of days in each year (365 or 366) until payment is received at a rate per year which shall on each day be 1 percentage point above the rate in effect on that day as the rate announced by the Bank as its prime rate of interest. Interest shall accrue at the Maximum Legal Rate (defined below) if no rate is specified. Maximum Legal Rate. It is the intent of the Bank and of Borrower that in no event shall interest be payable at a rate in excess of the maximum rate permitted by applicable law (the "Maximum Legal Rate'). Solely to the extent necessary to prevent interest under this Note from exceeding the Maximum Legal Rate, any amount that would be treated as excessive under a final judicial interpretation of applicable law shall be deemed to have been a mistake and automatically canceled, and, if received by the Bank, shall be refunded to Borrower. Due on Demand. This is a demand Note and all amounts hereunder shall become immediately due and payable upon demand by the Bank; provided, however, that all amounts hereunder shall automatically become immediately due and payable if Borrower or any guarantor or endorser of this Note commences or has commenced against it any bankruptcy or insolvency proceeding. Borrower hereby waives protest, presentment and notice of any kind in connection with this Note. Payments; Late Charge; Default Rate. Payments shall be made in immediately available United States funds at any banking office of the Bank. Absent demand for payment in full, interest shall be due and payable monthly. If payment is not received within five days of its due date, Borrower shall pay a late charge equal to the greatest of (a) five percent (5%) ofthe delinquent amount, (b) the Bank's then current late charge as announced by the Bank from time to time, or (c) $50.00, provided, however, that any excess collected by mistake shall be refunded on request, and each such late charge shall be separately charged and collected by the Bank. In addition, if the Bank has not actually received any payment under this Note within thirty days after it is due date, from and after such thirtieth day the interest rate for all amounts outstanding under this Note shall automatically increase to five (5) percentage points above the otherwise applicable rate per year, and any judgment entered hereon or otherwise in connection with any suit to collect amounts due hereunder shall bear interest at such Default Rate. Payments may be applied in any order in the sole discretion of the Bank but prior to demand, shall be applied first to past due interest, Expenses and late charges, then to scheduled principal payments, if any, which are past due, then to current interest, Expenses and late charges, and last to remaining principal. Setoff. The Bank shall have the right to set off against the amounts owing under this Note any property held in a deposit or other account with the Bank or any of its affiliates or otherwise owing by the Bank or any of its affiliates in any capacity to Borrower or any guarantor or endorser of this Note. Such set-off shall be deemed to have been exercised immediately at the time the Bank or such affiliate elect to do so. Purpose of Loan. Borrower represents, warrants and acknowledges to the Bank that the proceeds of the loan shall be used for a business purpose, and not for any personal, family or household purpose, unless the following box is checked: ^ Personal Loan. Authorization. Borrower, if a corporation, partnership, trust or other entity, represents that it is duly organized and in good standing or duly constituted in the state of its organization is duly authorized to do business in all jurisdictions material to the conduct of its business; that the execution, delivery and performance of this Note have been duly authorized by all necessary regulatory and corporate or partnership action or by its governing instrument; that this Note has been duly executed by an authorized officer, partner or trustee and constitutes a binding obligation enforceable against Borrower and not in violation of any law, court order or agreement by which Borrower is bound; and that Borrower's performance is not threatened by any pending or threatened litigation. Joint and Several. If there is more than one Borrower, each of them shall be jointly and severally liable for all amounts and obligations which become due under this Note and the term "Borrower" shall include each as well as all of them. Miscellaneous. This Note, togetherwith any related loan and security agreements and guaranties, contains the entire agreement between the Bank and Borrower with respect to the Note, and supersedes every course of dealing, other conduct, oral agreement and representation previously made by the Bank. All rights and remedies of the Bank under applicable law and this Note or amendment of any provision of this Note are cumulative and not exclusive. No single, partial or delayed exercise by the Bank of any right or remedy shall preclude the subsequent exercise by the Bank at any time of any right or remedy of the Bank without notice. No waiver or amendment of any provision of this Note shall be effective unless made specifically in writing by the Bank. No course of dealing or other conduct, no oral agreement or representation made by the Bank, and no usage of trade, shall operate as a waiver of any right or remedy of the Bank. No waiver of any right or remedy of the Bank shall t CL&028/103-PA (71101) MA Ct2-Ct~-` C17 13; 3'? FFOP9- T-177 FLCt3ICtClF=~ F-;~C~B course o,business may be admitted into evidence as an original. This Note is a binding obligation enforceable against Borrower and its successors and assigns and shall inure to the benefit of the Bank and its successors and assigns. If a court deems any provision of this Note invalid, the remainder of the Note shall remain in effect. Section headings are for convenience only. Singular number includes plural and neuter gender includes masculine and feminine as appropriate. Notices. Any demand or notice hereunder or under any applicable law pertaining hereto shall be in writing and duly given if delivered to Borrower (at its address on the Bank's records) or to the Bank (at the address on page one and separately to the Bank officer responsible for Borrower's relationship with the Bank). Such notice or demand shall be deemed sufficiently given for all purposes when delivered (i) by personal delivery and shall be deemed effective when delivered, or (ii) by mail or courier and shall be deemed effective Ehree (3) business days after deposit in an official depository maintained by the United States Post Office for the collection of mail or one (1) business day after delivery to a nationally recognized overnight courier service (e. g., Federal Express). Notice by e-mail is not valid notice under this or any other agreement between Borrower and the Bank. Governing Law; Jurisdiction. This Note has been delivered to and accepted by the Bank and will be deemed to be made in the Commonwealth of Pennsylvania. Unless provided otherwise under federal law, this Note will be interpreted in accordance with the laws of the Commonwealth of PennSylVanla eXClUding Ifs COnfIICt Of 18WS rU10S, BORROWER HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE COMMONWEALTH OF PENNSYLVANIA IN A COUNTY OR JUDICIAL DISTRICT WHERE THE BANK MAINTAINS A BRANCH AND CONSENTS THAT THE BANK MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT BORROWER'S ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED IN THIS NOTE WILL PREVENTTHE BANK FROM BRINGING ANY ACTION, ENFORCING ANYAWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST BORROWER INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF BORROWER WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC JURISDICTION. BOfrOWef acknOWledgeS and agrees that the Venue prOVlded at)OVe IS the mOSt COnVenlent forum fOf both the Bank and Borrower- Borrower waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Note. Waiver Of Jury Tflal. BORROWER AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTTO TRIAL BYJURY BORROWER AND THE BANK MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS NOTE OR THE TRANSACTIONS RELATED HERETO. BORROWER REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURYTRIAL WAIVER. BORROWER ACKNOWLEDGES THATTHEBANK HAS BEEN INDUCED TO ENTER INTO THIS NOTE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION. Power to Confess Judgment, BORROWER HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR BORROWER AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR ASERIES OF JUDGMENTS, AGAINST BORROWER 1N FAVOR OF THE BANK OR ANY HOLDER HEREOF FORTHE ENTIRE PRINCIPAL BALANCE OF THIS NOTE, ALL ACCRUED INTEREST AND ALL OTHER AMOUNTS DUE HEREUNDER, TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF THE GREATER OFTEN PERCENT (1 O%~ OF SUCH PRINCIPAL AND INTEREST OR $1,000 ADDED AS A REASONABLE ATTORNEY'S FEE, AND FOR DOING SO THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. BORROWER HEREBY FOREVER WAIVES AND RELEASESALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANYAND ALLAPPRA)SEMENT, STAYOR EXEMPTION LAWS OF ANYSTATENOW IN FORCE OR HEREAFTER ENACTED. INTEREST ON ANY SUCH JUDGMENT SHALLACCRUE ATTHE DEFAULT RATE. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOTANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIMEAS OFTENAS THE BANK SHALL ELECT UNTIL SUCH TIME AS THE BANK SHALL HAVE REGENED PAYMENT IN FULL OF THE DEBT, INTEREST AND COSTS. Preauthorized Transfers from Deposit Account. If a deposit account number is provided in this paragraph Borrower hereby authorizes the Bank to debit Borrower's deposit account #3740875376 with Ibe [dank automatically (br any amount which becomes due under this Note or as dircctat Uy 13orrcnvcr's Authorired Represcntative for such account, by telephone. BANK USE ONLY Authorization Confirmed: (if required per`Credit Policy Manual Section 4.15.10, paragraph 1) Product Code: Disbursement of Funds: Credit A/C # Off Ck # Payoff Obligation # CLO-02IIl103-PA (11/01) N:A I;uw; Jurisdiction and Waiver of Jury Trial, and has been advised by counsel as necessary or appropriate- 1'ax ID/SSiI 25-1840226 827 W.'fRINllLE ARTNEI2S - C• AZ. K pp m General Partner RY~ ~._. _..__-___. Morton S. Koppcrman, General Partner Signature of Witness: I'ypcd Name of Witness: C:OMMONWI3l11;fM OI~ I'f:NNSY.LVANIA ) '? t : SS. COUNTY OJ' L.-1,•C-~t~t.~. l~-.1.;.t. ~t-~l::r:( ) ACKNOWI,FDGMENT T-177 FC+~1~/C1~16 F-C1 !.. On the _ I _ day of November, in the year 2004, before me, the undersigned, a Notary C'ublic in and for said Commonwealth, personally appeared GARY M. KOI'PERMAN, personally known to me or proved to me on the basis ofsalisfactory evidence to be the individual whose name is subscribed to the within said instrument and acknowledged to me that he/she cxccutcd the same in his/her capacity, and shat by his/her signature on the utstrun~ent, the individual, or the person upon behalf of which fhc individual acted, cxccutcd Q)c instrum.Dnt. u.. - / Notaaial Seal ~~(.r.'-'~/ !~:-r vr•~e',._~ /-~ ~ ,~c,:~.~~(.. -.. -' $tis.;uutc K tsuher. Notary Pui~lic olary Public..- ~ ....^ CUMMONVJL'AL,1'11 Oh I'GNNSYLVANIA ) SS. ~Cantp I-Iiil T3oro, (.Ilalt)t'rl,md (:oultty 1`,dy Cornrn'ssslcm [::xpires Auy, li, :?005 Manlbar, Pennsylvania Assxlat!an of t~;olrtrios ACKNOWLEDCMGNT On U)e __ day of November, in the year 2004, before me, the undersigned, a Notary Public in and for said Convnonwcalll), personally appeared MORTON S. KOPPI?RMAN, personally known to me or proved to me on the basis ol-satisfactory evidence to be the individua! whose name is subscribed to the within said instrument and acknowledged to methat he/she cxccutcd the same in his/her capacity, and that byhis/her signature on the instrument, the individual, or the person upon) behalf of which the individual acted, executed the instrument. Notary Public i i d ~ `} FOR B/~NK USE ONLY Authorization Confirmed: ~ /~/J~--~.,__ ~t~required p r Credit Policy Manual Section 4.15.10, paragraph 1) Disbursement of Funds: Credit A/C # Off Ck # Product Code: Payoff Obligation # ClD-026!103-PA (11/D7) MA RULES OF CIVIL PROCEDURE -CONFESSION OF JUDGMENT Rule 2959. Striking Off or Opening Judgment; Pleadings; Procedure (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 not 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 Rule 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 and 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 sow 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 in 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 are pending. (g) (1) A judgment shall not be stricken or opened because of a creditors' failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor. (2) Subdivision (g)(1) shall apply to (1) judgments entered prior to the effective date of subdivision (g)' which have not been stricken or opened as of the effective date and (2) judgments entered on or after the effective date. Adopted June 27, 1969, effective Jan. 1, 1970. Amended Oct. 4, 1973, effective Dec. 1, 1973; Nov. 14, 1978, effective Dec. 2, 1978; Dec. 14, 1979, effective Feb. 1, 1980; June 20, 1985, effective Jan. 1, 1986; April 1, 1996, effective July 1, 1996; Sept. 28, 2004, imd. effective. Explanatory Comment - 1979 Amendment to Rule 2959(a). The Act of March 27, 1945, P.L. 83, as amended, 12 P.S. §§913, 914 provided that if a confessed judgment is transferred to another county or if a writ of execution upon it is direct4ed to another county, the defendant has the option to petition to open either in the county where the judgment was originally entered or in the county to which it was transferred or to which the execution was directed. This Act is repealed by JARA. Subdivision (a) of Rule 2950 has been amended to continue the procedure. The scope of the repealed Act is enlarged by granting optional venue in the case of a petition to strike the judgment as well as petitions to open. This consisted with subdivision (a) of Rule 2959 which requires all grounds for relief, whether to open or to strike, to be raised at one time. To prevent bifurcation of the proceedings, the optional venue must be extended to both forms of relief. A petition to strike must assert defects appearing on the record. If the judgment debtor should seek to strike the judgment in an outside county, examination of the record of the original confession may be essential. For this purpose, the judgment debtor can, under the authority of Rule 3002(c), file in the outside county a certified copy of all or any part of the record, testimony or exhibits in the original action. New Rule 2959(Q. An order of court opening a judgment does not impair the lien of the judgment or of any execution issued on it, although the court may stay the execution pending final disposition of the proceeding. 7 Stand.Pa.Prac. 172, 174 §§ 138, 142. To the contrary an order of court striking a judgment annuls the lien of the judgment or of any execution issued on it. 7 Stand.Pa.Prac. 244 §§ 223, 224. However, the mere filing of a petition to open or strike a judgment does not affect the lien of the judgment or of any execution, subject, of course, to the power of the court to stay execution pending decision on the petition. Subdivision (f) has been added to Rule 2959 to restate this principal. EXHIBIT "B" ~ Subd. (g)added by Order of Sept. 28, 2004, imd. effective. Section 1722(b) of the Judicial Code authorizes the Supreme Court to promulgate general rules on the subject of liens and their extent where not already governed by Act of Assembly. In the absence of such general rules, present practice shall continue. The rarely used Act of July 9, 1897, P.L. 237, 12 P.S. § 911, created a special remedy under which a creditor of a judgment debtor might attack a judgment confessed by that debtor in favor of another creditor on a sowing of invalidity or fraud, and the filing of a bond to protect the judgment plaintiff. The Act preserved the lien of any levy which had been made pending termination of the proceedings. The Act was suspended in 1969 by Rule 2975(3) [rescinded] with respect to confessed judgments, except insofar as it preserved the lien, and it has been repealed by JARA. Explanatory Comment -1996 The rules of civil procedure governing confession of judgment for money have been revised in two major respects: the abolition of confession of judgment in a consumer credit transaction and the imposition of a requirement of notice prior to or with execution upon a confessed judgment. ll. Notice The provisions for notice are intended to aid the bench and bar in complying.with Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250 (C.A.3 1994). The significance of the opinion was stated by Judge R. Stanton Wettick, Jr. in S & T Bank v. Coyne, No. GD 94-12141 (Allegheny County, August 11, 1994): The Jordan opinion is significant only because the judgment creditor and its attorneys are now also subject to a § 1983 claim by a judgment debtor who did not waive its constitutional rights to notice and a hearing. New rules have been promulgated to provide for notice to be served upon the defendant in most cases prior to or during execution on a judgment entered by confession. There are three notices but only one need be given in a particular case. Under new rule 2959(a)(3), a defendant must file a petition within thirty days of service of the notice to obtain relief from the judgment or to prevent execution. After thirty days, the defendant is barred from relief unless there are "compelling reasons for the delay". The intent of these rules is to limit the necessity for hearings on issues of due process and waiver by providing the defendant with apre-deprivation notice and opportunity for hearing on the merits. However, new Rule 2959(a)(2) specifies three instances when the issue of the voluntary, intelligent and knowing waiver of due process rights may be raised. The first is in support of a request for a stay when the court ha already denied a prior request for a stay despite timely filing of that request and "the presentation of prima facie evidence of a defense". The second is when personal property has been levied upon or attached without prior notice and hearing under new Rule 2958.2. The third is when a defendant in possession of leased residential real property has been evicted without prior notice and hearing under new Rule 2973.3. In all other instances, the issues upon a petition for relief from the judgment will be the merits and not the waiver of due process rights. - 2 - N n c~~ #~ ~, ~ ~~ ~ - ~- ~ 1 ~ .~ -^` '.i t ~ ~' -~' • r ~ ~~ > `~~1 ice.) --i ~~ ~ ~J HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS[ TRUST COMPANY, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff :CIVIL ACTION -LAW vs. No. O'1' -. 2.7~ ~, ~tc>~~~ ~'~ 827 W. TRINDLE PARTNERS, a Pennsylvania General Partnership, Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO: PROTHONOTARY Please enter the appearance of Marc A. Hess of the firm of Henry & Beaver LLP, whose address is 937 Willow Street, Lebanon, Pennsylvania 17046 as attorney for Manufacturers and Traders Trust Company the Plaintiff in the above-captioned matter. Dated: , 2007 HENRY LLP By: ARC SS I.D. #55774 C~ ~ ~ ~ ~ ±~~ i`.~ + ~~.-: ~ti ' -~ ~~ - r .:~{ i -".y-~ f~...; ~ ~r? / ~' .:-~' { OFFICE OF THE PROTHONOTARY COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TO: 827 W. Trindle Partners c/o Morton S. Kopperman, Partner 981 Ridgebury Drive South Park, PA 15129 MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS[ TRUST COMPANY, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff :CIVIL ACTION -LAW 827 W. TRINDLE PARTNERS, a Pennsylvania General Partnership, Defendant NOTICE Pursuant to Pa.R.C.P. Rule 236 please be advised that judgment by confession in the above proceeding was entered against you on , 2007 in the amount of: Principal Sum Due - $ 109,000.00 Interest to 5/1/2007 - 7,282.57 Late Fees to 5/1/2007 - 406.01 Attorney's Commission (10% of unpaid principal and interest) - 11,628.25 Total - $ 128,316.83 Plus all future accruing interest after entry of judgment and after May 1, 2007, and after entry of judgment at the contract rate ($43.15 per diem) until paid in full, additional late fees of Fifty Dollars ($50.00) per month accruing after the 16th day of each month, together with reasonable attorney's fees, bank costs and cost of suit, and all other amounts, fees, and costs due pursuant to the Note, including cost of preservation of the collateral. Copies of all documents filed are attached hereto. Prothonotary t~~ OFFICE OF THE PROTHONOTARY COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TO: 827 W. Trindle Partners c/o Gary W. Kopperman, Partner 827 West Trindle Road Camp Hill, PA 17001 MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff vs. 827 W. TRINDLE PARTNERS, a Pennsylvania General Partnership, Defendant IN THE COURT OF COMMON PLEAS[ CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No. ma'y' - ~7L~. G'~.C ~Ee.-r NOTICE Pursuant to Pa.R.C.P. Rule 236 please be advised that judgment by confession in the above proceeding was entered against you on , 2007 in the amount of: Principal Sum Due - $ 109,000.00 Interest to 5/1/2007 - 7,282.57 Late Fees to 5/1 /2007 - 406.01 Attorney's Commission (10% of unpaid principal and interest) - 11,628.25 Total - $ 128,316.83 Plus all future accruing interest after entry of judgment and after May 1, 2007, and after entry of judgment at the contract rate ($43.15 per diem) until paid in full, additional late fees of Fifty Dollars ($50.00) per month accruing after the 16th day of each month, together with reasonable attorney's fees, bank costs and cost of suit, and all other amounts, fees, and costs due pursuant to the Note, including cost of preservation of the collateral. Copies of all documents filed are attached hereto. Prothonotary ~/ HENRY & BEAVER LLP By: Marc A. Hess Identification No. 55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS[ : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW vs. 827 W. TRINDLE PARTNERS, a Pennsylvania General Partnership, Defendant TO THE PROTHONOTARY: No. 07-2762 Civil Term PRAECIPE - SETTLE & DISCONTINUE X -SATISFY the confessed judgment entered to the above term and action number. DATE: , 2007 HENR By: % ~ v ARC A. HESS I.D. #55774 Attorney for Plaintiff r.,? C ~~ ~~ ':~.+ ~ ~ ra ~~;. `r..? ~yy t V k ~:µ~ ' Ts- I^{ : ``v ~~