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HomeMy WebLinkAbout03-3940HAROLD S. IRWIN, III, ESQUIRE ATTORNEY ID NO. 29920 35 EAST HIGH STREET CARLISLE PA 17013 (717} 243-6090 ATTORNEY FOR PLAINTIFF TBF FINANCIAL, LLC, Plaintiff vs. JAMES KENNEY, Defendant : IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY~ PENNSYLVANIA : : CIVIL ACTION - LAW : NO. 2003 - ..~_~CIVIL TERM : IN ASSUMPSIT NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are serve{J, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other dghts important to you. 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. Court Administrator Fourth Floor Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 TBF FINANCIAL, LLC, Plaintiff VS. JAMES KENNEY~ Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : ~CIVIL ACTION - LAW : NO. 2003 - ~ CIVIL TERM : IN ASSUMPSIT COMPLAINT NOW comes the plaintiff, by its attorney, Harold S. Irwin, III, Esquire, and files this complaint, representing as follows: 1. Plaintiff is TBF FINANCIAL, LLC, an illinois limited liability company, with its principal offices at 120 South LaSalle Street, Suite 1520, Chicago, Illinois 60603. 2. Defendant is James Kenney, an adult individual residing at 6105 Haymarket Way, Mechanicsburg, Cumberland County, Pennsylvania 17050. 3. On the dates indicated on the statements of account attached September 10, 1998, defendant personally guaranteed an equipment lease executed on behalf of Automated Manufacturing Systems, lessee (hereinafter Automated) with Wood Business Products, lessor (hereinafter Wood). A copy of the lease is incorporated herein by reference and attached hereto as Exhibit "A". 4. The lease provided for 36 monthly rental payments of $96.00, plus tax of $5.76 per month, for a total rental amount of $3,663.36 over the life of the lease. 5. The lease also provided for the payment of late charges and interest of 18% per annum in the event of late payments or a default, as well as attorney fees in the event that collection process was necessary. 6. The rental amount charged for the lease of this equipment and the other terms thereof were the usual and ordinary rental cost and terms therefore and the costs and terms to which defendant agreed. 7. Immediately after the lease was signed, Wood assigned and transferred to De Lage Landen Financial Services, Inc. (hereinafter DeLage), all its right, title and interest in and to the lease and all documents attendant to the lease, including, but not limited to the guarantee of the lease by defendant. See plaintiff's affidavit incorporated herein by reference and attached hereto as Exhibit "B". 8. Defendant and / or Automated Manufacturing Systems made payments on the lease totaling $1,322.88, leaving a balance due of $2,340.48. However, they also incurred late charges of $158.64, increasing the balance due (exclusive of interest) to $2,499.12. 9. Automated Manufacturing Systems defaulted on the lease on or about August 6, 1999. 10. Upon repossession of the equipment subject to the lease, the equipment retained a residual value of $552.86, decreasing the total amount remaining to be paid under the lease (exclusive of interest) to $3,051.98. 11. Numerous requests have been made of the defendant and Automated Manufacturing Systems to pay the balance due, but they have refused and neglected to pay the same or any part thereof and continue so to refuse. 12. In December, 2002, plaintiff entered into a process with DeLage to acquire some of DeLage's equipment leases, concluding this process on December 18, 2002. 13. The defaulted lease which is the subject of this action was one of the lease acquired from DeLage by plaintiff, which now is the true, lawful and absolute owner of the lease and lease documents. WHEREFORE, plaintiff demands judgment against defendant in the sum of Three Thousand Fifty-one and 98/100 ($3,051.98) Dollars, plus interest at the rate of 18% per annum from August 6, 1999, plus attorney fees and the costs of this action. August /~' ,2003 35 East High Street Carlisle, PA 17013 (717) 243-6090 Supreme Court ID No. 29920 JU1-25-03 11:06A Irwin Law Office 717+243+9200 P.06 VERIFICATION I hereby verify that I am the Manager of the plaintiff in this action, that I am authorized to execute this affidavit and that the facts in stated in the above complaint are true and correct. I understand that false statements herein are made subject to the penalties of Pa.C.S. Section 4904, relating to unsworn falsification to authorities. EXHIBIT "A" EQUIPMENT LEI,SE ,me WOOD BUSINESS PRODUCTS,. INC. ¢'~Y FORT LAUD'ERDALE a,~, FL THiS LE/LSE IS SUBJECT TO THE TERMS AND COND[TIONS PRINTED HERE~'IN AND ON THE REVERSE SIDE. ALL OF WHI:H ARE MADE A PART HEREOF AND WHICH LESSEE ~K;KNOWLEDGES HA~ING READ. THIS LEASE IS NOT BINDING UNTIL ACCEPTEr.~ BY LESSOR LESSOR WOOD BUSINESS PRODUCTS, INC. ,. Le~-.~.,~ ~ ~4 --- CO.LESSEE X TERMS AND CONDITIONS * PLEASE READ CAREFULLY BEFO_RE E,IGNIN{3 DESCRIPTION OF EQUIPMENT LEASED SCHEDULE OF RENTAL PAYMENTS UNCONDITIONAL GUARANrY OF LEASE _ i~L-~e~l~lhe C~S~S ofreP~flflg, mlo~ or rePtaC~ ttll E~l~Pm~m uP~ ~ecelpl bY Le~ ol ~r~mV ~ld~. I~lt ~ reP,~, r~ · ~p~ ~ ~fl ~ed. EXHIBIT "B" STATE OF ILLINOIS) ) ss. COUNTY OF COOK) AFFDAVIT Now comes Robert Boehm after having been first duly sworn who upon oath states as follows: Presently and at all times stated hereinafter, I have been and am a principal and manager of TBF Financial, LLC. ("TBF"). Presently and at all times stated hereinafter, TBF was and is in the business of buying equipment leases from equipment leasing companies. In December, 2002, TBF entered into a process with De Lage Landen Financial Services, Inc. ("De Lage") to acquire some of De Lage's equipment leases. The process concluded on December 18, 2002, when TBF acquired some of De Lage's leases. 4. I was the principal representative of TBF in that process. As part of the process, I reviewed or supervised the reviewing of De Lage's books, records, and documents concerning the leases which TBF acquired from De Lage and specifically the lease (the "Lease") identified as lease no. 24271021 of which Wood Business Products was the lessor and Automated Manufacturing Systems was the lessee. De Lage's books, records, and documents reflected that immediately after the Lease was signed, Wood Business Products, the lessor, assigned and transferred to De Lage all its right, title, and interest in and to the Lease and all documents attendant to the Lease, including, but not limited to, the guarantee of the Lease (the "Lease Documents"). As part of the acquisition of the Lease and the Lease Documents, De Lage represented and xvarranted to TBF that De Lage had good and marketable title to the Lease and the Lease Documents whereupon De Lage assigned to TBF all De Lage's right, title, and interest in and to the Lease and the Lease Documents. TBF is now the true, lawful, and absolute owner of the Lease and the Lease Documents. Further Affiant sayeth naught. (signature on tbllowing page) Dated: ROBERT BOEHM Subscribed and sworn to before me this Ib,~- day of ~-,_~-L3 ,2003 Notary Public My commission expires: t/De Lage/affidavit ass/~ment EXHIBIT D BILL OF SALE For value received, the undersigned hereby transfers, sells, conveys, grants and delivers to TBF Financial, LLC, its successors and assigns ('~I'BF"), without recourse and upon the terms set forth in that certain Asset Purchase Agreement of even date between TBF and the undersigned all of the undersigned's right, title and interest in and to those leases identified on Exhibit I attached hereto as a part hereof, together with the equipment subject and the documents relating to said leases. Dated: December , 2002 At Wayne, Permsylvan~a DeLAGE LANDEN FINANCIAL SERVICES, INC. SHERIFF' S RETURN - REGULAR CASE NO: 2003-03940 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND TBF FINANCIAL LLC VS KEN-NEY JAMES BRYAN WARD , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to says, the within COMPLAINT & NOTICE was served upon KEN-NEY JAMES DEFENDANT , at 1553:00 HOURS, on the 13th day of August at 6105 HAYMARKET WAY MECHANICSBURG, PA 17050 by handing to JAMES KENNEY a true and attested copy of COMPLAINT & NOTICE the , 2003 together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 7.59 Affidavit .00 Surcharge 10.00 .00 35.59 Sworn and Subscribed to before me this 27 ~ day of 02~~ A.D. ' P~othonot ary So Answers: R. Thomas Kline 08/14/2003 HAROLD IRWIN III Depnfty 'Sheriff TBF FINANCIAL, LLC, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA JAMES KENNY, : NO. 2003-3940 CIVIL TERM : IN ASSUMPSIT Defendant : CIVIL ACTION _ LAW NOTICE TO PLEAD TO: TBF Financial c/o Harold S. Irwin, Esquire 35 East High Street Carlisle, Pa 17013 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Respectfully submitted, DATED: October 3, 2003 FENSTERMACHER ,AND ASSOCIATES, P.C. Y~ John R. Fenstermacher Supreme Court I.D. #29940 ~,.._.5115 East Trindie Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Defendant TBF FINANCIAL, LLC, Plaintiff JAMES KENNY, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2003-3940 CIVIL TERM : IN ASSUMPSIT : : CIVIL ACTION ~ LAW ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND NOW comes Defendant James Kenny by .and through his attorneys, the Offices of Fenstermacher and Associates, P.C., and files this Answer to Plaintiff's Complaint with New Matter, as follows: 1. Admitted upon information and belief. 2. Admitted. lease. Denied. Defendant did not personally guarantee an equipment 4. Denied. The averments set forth in paragraph 4 of Plaintiff's Complaint are denied as the Equipment Lease attached to the Complaint is a written document which speaks for itself. 5. Denied. The averments set forth in Paragraph 5 of Plaintiff's Complaint are denied as the Equipment Lease attached to the Complaint is a written document which speaks for itself. 6. Denied. After reasonable investigation, Defendant does not have sufficient information to either admit or deny the usual and ordinary rental costs and terms of the equipment are and, therefore, such 13ortions of the paragraph are deemed denied and strict proof thereof is demanded at tdal. 7. Denied. After reasonable investigation, Defendant does not have sufficient information to either admit or deny Paragraph 7 and, therefore, such paragraph is deemed denied and strict proof thereof is demanded at trial. Furthermore, the averments set forth in Paragraph 7 of Plaintiff's Complaint are denied as the affidavit is a written document which speaks for itself. 8. Denied. Defendant made all payments necessary as they became due under the lease. lease. Denied. Automated Manufacturing Systems did not default on the 10. Denied. After reasonable investigation, Defendant is not aware of the current market value of the equipment and, therefore, such paragraph is deemed denied and stdct proof thereof is demanded at tdal. 11. Denied. Defendant has no duty to pay any further monies under the Equipment Lease agreement. 12. Denied. After reasonable investigation, Defendant does not have sufficient information to either admit or deny Paragraph 12 and, therefore, such paragraph is deemed denied and strict proof thereof is demanded at trial. 13. Denied. After reasonable investigation, Defendant does not have sufficient information to either admit or deny Paragraph 13 and, therefore, such 2 paragraph is deemed denied and strict proof thereof is demanded at trial. WHEREFORE, Defendant respectfully requests this Court enter judgment for Defendant and against the Plaintiff and award all costs and fees associated in defending this action and any other relief the Court deems appropriate. NEW MATTER 14. Defendant incorporates herein his responses to Paragraphs 1 through 13 above as though set forth at length. 15. Defendant did not sign the "Unconditional Guaranty of Lease" section located on the bottom of the Equipment Lease attached to Plaintiffs Complaint as Exhibit A. 16. The signature appearing in the section titled "Unconditional Guaranty of Lease" is a forgery. 17. Defendant did not guarantee the lease and therefore owes no additional money under the lease. 18. Plaintiffs Complaint and all claims thereunder are barred by accord and satisfaction. 19. Plaintiff's Complaint and all claims thereunder are barred by the doctrine of consent. 20. Plaintiffs Complaint and all claims thereunder are barred by equitable estoppel. 3 21. Plaintiff's Complaint and all claims thereunder are barred by the doctrine of fraud. 22. Plaintiff's Complaint and all claims thereunder are barred by the doctrine of waiver. WHEREFORE, Defendant respectfully requests this Court enter judgment for Defendant and against the Plaintiff and award all costs and fees associated in defending this action and any other relief the Court deems appropriate. Respectfully submitted, FENSTERMACHER AND ASSOCIATES. P.C. Jol~h Fehstermacher ~ ~reme Court I.D. #29940 "-5'115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Defendant DATED: October 3, 2003 4 VERIFICATION I, James Kenney, hereby certify and verify that the facts set forth in the foregoing Answer and to Plaintiff's Complaint and New Matter are true and correct to the best of my knowledge, information and ,belief. I understand that any false statements herein are subject to the penalties of 18 Pa. C. S. {4904 relating to unswom falsification to authorities. ~i Jame.~Kenr~, DATE: 10/3/03 CERTIFICATE OF SERVICE AND NOW, on this 3rd day of October, 2003, I, John R. Fenstermacher, Esquire, hereby certify that I have served the foregoing Defendant's Answer to Plaintiffs' Complaint With New Matter by mailing a true and correct copy by United States first class mail, addressed as follows: Harold S. irwin, Esquire 35 East High Street Carlisle, Pa 17013 By:_ '~ohn' R. Fenstermacher HAROLD $. IRWIN, III, P.S~UIRE AI'rORNEY ID NO. ~9920 84 BOU'Ili PI'I'E' 8TRErr CARLISLE PA 17013 ATTORNEY FOR PLAINTIFF TBF FINANCIAI~ LLC~ Plaintiff vs. JAMES KENNEY~ Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA .. : CIVIL ACTION - LAW : : NO. 2003- '~'~O CIVIL TERM : IN ASSUMPBIT PLAINTIFF8~ ANBWER TO DEFENDANTS~ NEW MArl'ER NOW, comes the plaintiff, by its attorney, Harold S. Irwin, III, Esquire, and responds to the defendant's new matter, representing as follows: 14. Plaintiff restates the averments of its complaint, paragraphs one through thirteen inclusive, by incorporation herein by reference as if fully set forth at length. 15. The averments of paragraph fifteen of the defendant's new matter are denied. On the contrary, defendant did sign the guaranty as reference to the equipment lease will show. 16. The averments of paragraph sixteen of the defendant's new matter are denied. On the contrary, defendant did sign the guaranty as reference to the equipment lease will show. 17. The averments of paragraph seventeen of the defendant's new matter are denied. On the contrary, defendant did guarantee the payment of the lease and such payments have not been made. Accordingly, defendant owes to the plaintiff such payments as demanded in plaintiff's complaint. 18. The averments of paragraph eighteen of the defendant's new matter are conclusions of law to which no response is required. If a response is required, however, those averments are specifically denied. There is absolutely no basis in the facts or the law for the application of the doctrine of accord and satisfaction. 19. The averments of paragraph nineteen of the defendant's new matter are conclusions of law to which no response is required. If a response is required, however, those averments are specifically denied. There is absolutely no basis in the facts or the law for the application of the doctrine of consent. 20. The averments of paragraph twenty of the defendant's new matter are conclusions of law to which no response is required. If a response is required, however, those averments are specifically denied. There is absolutely no basis in the facts or the law for the application of the doctrine of equitable estoppel. 21. The averments of paragraph twenty-one of the defendant's new matter are conclusions of law to which no response is required. If a response is required, however, those averments are specifically denied. There is absolutely no basis in the facts or the law for the application of the doctrine of fraud. 22. The averments of paragraph twenty-two of tlhe defendant's new matter are conclusions of law to which no response is required. If a response is required, however, those averments are specifically denied. There is absolutely no basis in the facts or the law for the application of the doctrine of waiver. WHEREFORE, plaintiffs demand judgment against defendant in the sum of Three Thousand Fifty-one and 98/100 ($3,051.98) Dollars, plus interest at the rate of 18% per annum from August 6, 1999, plus a, tto~ey fees and the costs of this action. October q 2003 HAROLD S. IRW Attorney for plaintiff~ 64 South Pitt Street Carlisle, PA 17013 (717) 243-6090 Supreme Court ~D NO. 29920 Fro6:IRWIN LAW OFFICE 717 243 9200 10/09/2008 23:49 #115 P.005/006 VERIFICATION I hereby verify that I am the manager of the plaintiff in this action, that I am authorized to execute this affidavit and that the facts in stated in the above answer to new matter are true and correct. I understand that false statements herein are made subject to the penalties of Pa.C,S. Section 4904, relating ~o unsworn falsification to authorities, October ~J , 2003 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing answer to new matter was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: October /~, 2003 JOHN FENSTERMACHER ESQ 5115 E TRINDLE RD MECHANICSBURG PA 1705,0 Attomey for Defendant H~~N, I Attorney for pla~ 64 South Pitt Street Carlisle, PA 17013 (717) 249-6090 Supreme Court ID NO. 29920