HomeMy WebLinkAbout03-5131HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORpORATiON
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
MELLON BANK, N.A., now by assignment,
CITIZENS BANK OF PENNSYLVANIA
8 West Market Street
Wilkes-Barre, PA 18711-0101,
Plaintiff
VS.
SHERRY V. YEARICK RJTCHEY and
DENNIS R. RITCHEY
4707 North Clem'view Drive
Camp Hill, PA 17011,
Defendants
ATTORNEY FOR PLAINTIFF/DEFENDANTS
1N THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION -- LAW
IN CONFESSION OF JUDGMENT
CONFESSION OF JUDGMENT
Pursuant to the authority set forth in the warrant of attorney contained in the original
Unconditional Guarantee, a true and correct copy of which is attached to the complaint filed in
574727.1
this action, I appear for the defendants and confess judgment in favor of the plaintiff and against
the defendants, as follows:
Principal balance on Note ................... $87,910.90
Interest to 09/11/03 ......................... $ 3,177.16
Attorneys' Fees (20%) ...................... $18.217.61
TOTAL .............. $109,305.67, plus
interest, costs and fees
HOURIGAN, KLUGER & QU1NN, P.C.
James T. Shoemaker, Esquire
1D No.: 63871
Attomey for the defendants for the purpose of
this complaint; otherwise, attorney for the
plaintiff
ORDER
AND NOW, this .~ day of ,2003, .judgment is entered in favor of the
plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania, and against the
defendants, Sherry V. Yearick Ritchey and Dennis R. Ritchey, in the amount of $109,305.67
together with interest and costs until paid.
Prothonotary
Clerk
574727.1
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
ATTORNEY FOR PLAINTIFF/DEFENDANTS
MELLON BANK, N.A., now by assigmnent,
CITIZENS BANK OF PENNSYLVANIA
8 West Market Street
Wilkes-Barre, PA 18711-0101,
Plaintiff
VS.
SHERRY V. YEARICK RITCHEY and
DENNIS R. RITCHEY
4707 North Clearview Drive
Camp Hill, PA 17011,
1N THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION -- LAW
IN CONFESSION OF JUDGMENT
Defendants : NO. ~ ~' 'fi],,3 /
COMPLAINT IN CONFESSION OF JUDGMENT
The plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania, by
and through its counsel, Hourigan, Kluger & Quinn, P. C., hereby complains of the defendants,
Sherry V. Yearick Ritchey and Dennis R. Ritchey, as follows:
574723.1
1. The plaintiff is a Pennsylvania state chartered bank with a place of business at 8
West Market Street, Wilkes-Barre, Pennsylvania 18711-0101.
2. The defendants are both adult individuals having a last known address of 4707
North Clearview Drive, Camp Hill, Pennsylvania 17011.
3. On or about August 29, 2000, the plaintiff agreed to make a loan to Celtic Moon
Publishing, Inc. in the principal amount of $125,000.00 (the "Loan").
4. The aforesaid loan is evidenced by a note (the "Note") dated August 29, 2000.
(A tree and correct copy of the Note is attached hereto as Exhibit "A" and incorporated herein by
reference.)
5. In order to partially induce the plaintiff to make the Loan, the defendants executed
and delivered to plaintiff an unconditional guarantee (the" Guarantee"). (A true and correct copy
of the Guarantee is attached hereto as Exhibit "B" and incorporated herein by reference.)
6. The Note has not been assigned, except as set forth above.
7. The Guarantee authorizes the plaintiff to confess judgment against the defendants
in favor of plaintiff for the amount the defendants are liable to plaintiff, with interest, costs and
an attorney's commission of twenty percent (20%), with release of errors.
8. No judgment has heretofore been entered, in any jurisdiction, under the power to
confess judgment under the Guarantee.
9. A default occurred in that the defendants failed to pay all principal and interest,
whereby the plaintiff declared the entire balance of the Note due and payable.
574723.1
2
10. The debt due and owing the plaintiff by the defendants is evidenced by an
affidavit of Joseph E. Sweeney, Assistant Vice President of the plaintiff ("Sweeney's Affidavit").
(Sweeney's Affidavit is attached hereto as Exhibit "C" and incorporated herein by reference.)
11. Judgment by confession is not being entered against the defendants in connection
with a consumer credit transaction. Consequently, the defendants are indebted to plaintiff as
follows:
Principal balance on Note $87,910.90
Interest to 09/11/03 $ 3,177.16
Attorneys' Fees (20%) ...................... $18,217.61
TOTAL $109,305.67 plus
interest, fees and costs
WHEREFORE, the plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of
Pennsylvania, requests that the Prothonotary enter judgment against the defendants, Sherry V.
Yearick Ritchey and Dennis R. Ritchey, the amount of $109,305.67, together with interest and
costs until paid.
600 Third Avenue
Kingston, PA 18704
(570) 287-3000 (Telephone)
(570) 287-8005 (Facsimile)
Respectfully submitted,
HOURIGAN, KLUGER & QUINN, P.C.
James T. Shoemaker, Esquire
I.D. No. 63871
Counsel for the plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of
Pennsylvania
Date: ~2~-~9~t~)~ .23,2003
574723.1
3
VERIFICATION
I, Joseph E. Sweeney, hereby certify that I am an Assistant Vice President of Citizens
Bank ofPermsylvania. I have the authority to make this verification on its behalf. The facts set
forth in the foregoing confession of judgment and complaint in confession of judgment are true
and correct to the best of my knowledge or information and belief. I understand that this
statement is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification
ney
~)S/stant Vice President
574648.1
U.S. Small Business Adminis ation
NOTE
SBA Loan #
SBA Loan Name
Cate
Loan Amount
Interest Rate
Borrower
Operating
Company
Lender
PROMISE TO PAY:
In return for the Loan, Borrower promises to pay to the order of Lender the amount of
interest on the unpaid principal balance, and all other amounts required by this Note.
Dollars,
2. DEFINITIONS:
"Collateral" means any properW taken as security for payment of this Note or any guarantee of this Note.
"Guarantor" means each person or entity that signs a guarantee of payment of ~is Note.
"Loan" means the loan evidenced by this Note.
"Loan Documents" means the documents related to this loan signed by Borrower, any Guarantor, or anyone who
pledges collateral.
"SBA" means the Small Business Administration, an A~ency of the United States of America.
SBA Form 147 (10/22~8) Pr~vio[ts edJfio~ obsolete
EXHIBIT
Pa~
PAYM'~NT TERaM S:
Borrower must make ail payments at the place Le.nder desi2nates. The payment terms for this Note are:
The interest rote on this Note will fluctuate. The initial interest rate is 10.50% per year. This initial rate
is the prime rate on the date SBA received the loan application, plus 1.00%.
Borrower must pay a total of 6 payments of interest only on the disbursed principal balance
beginning one month from the month of initial disbursement on this Note and every month
thereafter; payments must be made on the ~tr?'4/ calendm' day.in the months ~ey are due.
Borrower must pay interest on the disbursed principal balance, plus principal of $2,083.33 every month.
beginning seven months from the month of initial disbursement oa this Note; payments must be made on
the / ~/"//' calendar day in the months they are due.
Lender will apply each installment payment fa'st to pay interest accrued to the day Lender receives the
payment, then to' bring principal current, then to pay any late fees, and will apply any remaining balance
to reduce principal.
The interest rate will be adjusted monthly (the 7'change period").
The "Prime Rate" is the prime rote in effect on the fa-st business day of the month in which an
interest rate change occurs, as published in the Wall Street Journal on the next business day.
The adjusted interest rate will be 1.00% above the Prime Rate. Lender will adjust the interest rate
on the ftrst calendar day of each change period. The change in interest rate is effective on that day
whether or not Lender gives Borrower notice of the change. The initial interest rate must remain ia
effect until the fa'st change period begins.
Lender must adjust the payment mount at least annually as needed to amortize principal over the
remaining term of the note.
If SBA purchases the guaranteed portion of the unpaid principal balance, the interest rate becomes
fixed at the rate in effect at the time of the earliest uncured payment default, ff there is no uncured
payment default, the rate becomes fixed at the rate in effect at the time of purchase.
All remaining principal and accrued interest is due and payable 5 years and 6 months fi.om date of initial
disbursement.
SBA Form 147 (10/22~8) Pr~vlo~s editiom o~olcm page 2/,
RIGHT TO PREPAY:
Borrower may prepay this Note. Borrower may prepay 20 percent or less of the unpaid principal balance at any time
without notice. If Borrower prepays more than 20 percent and the Loan has been sold on the secondary market,
Borrower must:
A. Give Lender written notice;
B. Pay all accrued interest; and
C. If the prepayment is received less than 21 days from the date Lender receives the notice, pay an amount equal to 21
days' interest from the date lender'receives the notice, less any interest accrued during the 21 days and paid under
subparagraph B.
If Borrower does not prepay within 60 days from the date Lender receives the notice, Borrower must give Lender a
new notice,
DEFAULT:
Borrower is in default under this Note if Borrower does not make a payment when due under this Note, or if Borrower
or Operating Company:
A. Fails to do anything required by this Note and other Loan Documents;
B. Defaults on any other loan.with Lender;
C. Does not preserve, or account to Lender's satisfaction for, any of the Collateral or i~s proceeds;
D. Does not disclose, or anyone acting on their behalf does not disclose, any material fact to Lender or SBA;
E. Makes, or anyone acting on their behalf makes, ~ materially false or misleading representation to Lender or SBA;
F. Defaults on any loan or agreement with another creditor, if Lander believes the default may materially affect
Borrower's ability to pay this Note;
G. Fails to pay any taxes when due;
H. Becomes the subject of a proceeding under any bankruptcy or insolvency law;
I. Has a receiver or liquidator appointed for any part of their business or property;
J. Makes an assignment for the benefit of creditors;
K. Has any adverse change in financial condition or business operation that Lender believes may materially affect
Borrower's ability to pay this Note;
L. Reorganizes, merges, consolidates, or otherwise changes ownership or business slructure without Lender's prior
writtan consent; or
M. Becomes the subject of a civil or criminal action that Lender believes may materially affect Borrower's ability to
pay ~his Note.
6. LENDER'S RIGHTS IF THERE IS A DEFAULT:
Without notice or demand and without giving up'any of its rights, Lender may:
A. Require immediate payment of all amounts owing under this Note;
B. Collect ail amounts owing from any Borrower or Guarantor;
C. File suit and obtain judgmem;
D. Take possession of any Collateral; or
E. Sell, lease, or otherxvise dispose of, any Collateral at public or private sale, with or without advertisement.
SBA Form 147 (10t22,~) Pr~iom edifio~ obsolete
LENDER'S GENERAL POWERS:
Without notice and without Borrower's consent, Lender may:
A. Bid on or buy the Collateral at its sale or the sale of another lienholder, at any price it chooses;
B. Incur expenses to collect amounts due under this Note, enforce the terms of this Note or any other Loan
Document, and preserve or dispose of the Collateral. Among other things, the expenses may include payments
for property taxes, prior liens, insurance, appraisals, environmental remediation costs, and reasonable attorney's
fees and costs. If Lender incurs such expenses, it may demand immediate repayment from Borrower or add the
expenses to the principal balance;
C. Release anyone obligated to pay this Note;
D. Compromise, release, renew, extend or substitute any of the Collateral; and
E. Take any action necessary to protect the Collateral or collect amounts owing on this Note.
WHEN FEDERAL LAW APPLIES;
When SBA is the holder, this Note will be interpreted and enforced under federal law, including SBA regulations.
Lender or SBA may use state or local procedures for filing papers, recording documents, giving notice, foreclosing
liens, and other purposes. By using such procedures, SBA does not waive any federal immunity from state or local
control, penalty, tax, or liability..As to this Note, Borrower may not claim or assert against SBA any local or state law
to deny any obligation, defeat any claim of SBA, or preempt federal law.
SUCCESSORS AND ASSIGNS:
Under this Note, Borrower and Operating Company include the successors of each, and Lender includes its successors
and assigns.
10.
GENERAL PROVISIONS:
A. All individuals and entities signing this Note are jointly and severally liable.
B. Borrower waives all suretyship defenses.
C. Borrower must sign ail documents necessary at any time to comply with the Loan Documents and to enable
Lender to acquire, perfect, or maintain Lender's liens on Collateral.
D. Lender may exercise any of its rights separately or together, as tanny times and in any order it chooses. I~ender
may delay or forgo enforcing any of its rights without giving up any of them.
E. Borrower may not use an oral statement of Lender or SBA to contradict or alter the written terms of this Note.
F. If any part of this Note is unenforceable, all other parts remain in effect
G. To the extent allowed by law, Borrower waives all demands and notices in connection with this Note, including
presentment, demand, protest, and notice of dishonor. Borrower also waives any defenses based upon any claim
that Lender did not obtain any guarantee; did not obtain, perfect, or maintain a lien upon Collateral; impaired
Collateral; or did not obtain the fair market value of Collateral at a sale.
BA Fores 14"/(10/'2.9.O8) P~.vious ¢di~ obsolet~ Pagg: 4/6
1 I. STATE-SPECIFIC PROVISIONS:
THE CONFESSION OF JUDGMENT BELOW IS PART OF THIS OBLIGATION.
THE UNDERSIGNED HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY
OR CLERK OF ANY COURT OF RECORD IN THE UNITED STATES OR
ELSEWHERE TO APPEAR FOR AND, WITH OR WITHOUT DECLARATION FILED,
CONFESS JUDGMENT AGAINST THE UNDERSIGNED IN FAVOR OF THE
HOLDER, ASSIGNEE OR SUCCESSOR OF HOLDER OF THIS NOTE, AT ANY
TERM, FOR THE FULL OR TOTAL AMOUNT OF THIS NOTE, TOGETHER WITH
ALL "INDEBTEDNESS" PROVIDED FOR THEREIN, WITH COSTS OF SUIT AND
ATFORNEY'S COMMISSION OF TE1N (10) PERCENT FOR COLLECTION; AND THE
UNDERSIGNED EXPRESSLY RELEASES AI.I. ERRORS, WAIVES AI.L STAY OF
EXECUTION, RIGHTS OF INQUISITION AND EXTENSION UPON ANY LEVY UPON
REAL ESTATE AND ALL EXEMPTION OF PROPERTY FROM LEVY AND SALE
UPON ANY EXECUTION HEREON, AND THE UNDERSIGNED EXPRESSLY
AGREES TO CONDEMNATION AND EXPRESSLY RELINQUISHES A!.T. RIGHTS
TO BENEFITS OR EXEMPTIONS UNDER ANY AND AI~L EXEMPTION LAWS NOW
IN FORCE OR WHICH MAY HEREAJ~'i'~R BE ENACTED.
SBA Fom~ 147 (lO/gg) Previous cdition~ obsolele Pqe ~/6
12. BORROWER'S HAME(S) AND SIGNATURE(S):
By s ~mg below, each nd v dual or enti~ becomes obligated under this Note aa Borrower.
SBA Form 147 (10/98) Previous editions obsolete Page 6/6
" (~: Environmental Rider ~
THIS ENVIRONMENTAL RIDER dated ,~,(~,~'p" .~ ~. . ~ ~o , is a rider to
a Promissow Note, Nora =d S~cufity A~eement, Security Ag~ement, Letter of Credit Application or o~er
agree~nt d~ed ~/~r ~ q ~a~O , (~e "A~eemenf') from
~+~o ~ ~,~u~. T~. ("Undersigned")
to ~LLON B~ ~. ("Bank");
WHEREAS, Undersigned and Bank desire to incorporate the following provisions into the Agreement.
NOW, THEREFORE, Undersigned, intending to be legally bound hereby, convenants and agrees that the
following shall be added to the Agreement and made a part thereof.
1. Additional Representations. Warranties and Covenants.
In addition to the representations, warranties, and covenants set forth in the Agreement, Undersigned
hereby represents, warrants, covenants, and agrees, on behalf of itself and each of its subsidiaries and
affiliates, if any, that:
(a)
Each of them now has and will continue to have all Environmental Permits (as hereinafter
defined) necessary for the conduct of each of their businesses and operations;
(b)
Each of them condui:ts and will continue to conduct each of their businesses and operations in
material compliance with all applicable Environmental Laws (as hereinafter defined) and
Environmental Permits;
(c)
There does not exist, nor will any of them permit to exist, any event or condition that requires or
is likely to require any of them under any Environmental Law to pay or expend funds by way of
fines, judgments, damages, cleanup, remediation or the like in an aggregate amount, the payment
of which could reasonably be expected to interfere substantially with normal operations of
Undersigned or materially adversely affect the financial condition of Undersigned;
(d)
Undersigned shall notify the Bank, in writing within five (5) business days, upon becoming .
aware of any pending or threatened proceeding, suit, investigation, allegation or inquiry regarding
any alleged event or condition that, if resolved unfavorably to Undersigned or any of
Undersigned's subsidiaries or affiliates, is likely to cause Undersigned or any of its subsidiaries
or affiliates under any Environmental Law to pay or expend funds by way of fines, penalties,
administrative actions, judgments, damages, cleaning, remediation, or the like, or cause
Undersigned or any of its subsidiaries or affiliates to pay or expend funds for any third party
claims, proceedings, actions or judgments for personal injury or property damage resulting from
an event or condition relating to Hazardous Substances (as hereinafter defined) or from a release
or threatened release of Hazardous Substances; and
(e)
Undersigned shall provide at Undersigned's cost, upon request by Bank, certifications,
documentation, copies of pleadings and other information regarding the above, all in form and
content satisfactory to Bank.
Definitions.
As used in this Rider:
(a)
"Environmental Law" means any t~ederal, state or local environmental law, statute, regulation,
rule, ordinance, court or administrative order or decree, or private agreement or interpretation,
now or hereafter in existence, relating to the manufacture, distribution, labeling, use, handling,
collection, storage, treatment, disposal or otherwise of Hazardous Substances, or in any way
relating to pollution or protection of the environment, or public health.
(b)
"Environmental Permit" means any federal, state or local permit, license or authorization issued
under or in connection with any Environmental Law.
"Hazardous Substances" means petroleum and petroleum products, radioactive materials,
asbestos, radon, lead containing materials, sewage or any materials or substances defined as or
included in the definition of "hazardous wastes," "hazardous substances," "hazardous materials,"
"toxic substances," "hazardous air pollutants," and "toxic pollutants," or "pollution" as those
terms are used in any Environmental Law.
Witness the due execution hereof.
Witness:
Individual:
Address
(Seal)
Witness:
Individual:
Address
(Seal)
Attest/Witness:
(Corporate Seal) .~",d'Z..
Co~oration or Other Entity
By: (Signature and Title)
By: (Signature and Title)
(Seal)
Business Address
207 ltouse A'v~s~e, ~u.i.te 103, Crop l~ill, ~ 17011
SBA LOAN NO: PLP 387-128-4008
LATE PAYMENT CHARGE ADDENDUM
SPECIFIED PERCENTAGE CHARGE
THIS ADDENDUM dated as of the .z~9'~' day of .~..~.&~,fr. ~m~.~... , to the NOTE dated
,4-/,/a~at$,,'' ,,z~ ,~t:~ , (the "Note") from Celtic Mo/on Publishing, Inc. ("Undersigned") to
MELLON BANK, N.A. ("Bank");
WHEREAS, Undersigned and Bank desire to incorporate the following provisions into the Note.
NOW, THEREFORE, Undersigned, intending to be legally bound hereby, covenants and agrees that the
following shall be added to the Note and made a part thereof.
If any payment (including without limitation any regularly scheduled payment, balloon payment and final
payment) is not paid within 15 days after it is due, Undersigned will pay a late charge equal to 4.0% of
the entire vavment due (regardless of whether part of the payment due had been made, and regardless of
whether the payment due consists of principal and interest, principal only or interest only). (Such late
charge shall be in addition to any increase made to the interest rate(s) applicable to the outstanding balance
hereof as a result of maturity of this Note or otherwise, as well as in addition to any other applicable fees,
charges and costs.) Also, Bank reserves the right to modify, in its sole discretion and upon thirty (30) days
prior written notice to Undersigned, the late charge set forth herein.
2. Except as stated in this LATE PAYMENT CHARGE ADDENDUM, the terms, covenants, conditions and
provisions of the Note will remain in full force and effect.
Witness the due execution hereof.
(Signatures) Borrower:'::
Celtic Moon Publishing, Inc.
x
By:
Address:
207 House Avenue, Suite 103
Camp Hill, PA 17011
U.S. Small Business Administration
UNCONDITIONAL GUARANTEE
SIVA Loan #
SBA Loan Name
Guarantor
Rog'ower
Lender
Date
Note Amount
Guarantor uncondlt/o~a//¥ guara~teec payment to Leader ora//amounts ow/ag under the Note. Tb/s Guarantee mm.i~s
/n effect un///the Note is paid in fizJ[. Guarantor must Fay ail amounts due under the Note when L~tder makes w~itten
de.tad ul~oa Cmarantor. Leader is not requ/zed to seek paymem from any other SOl.trce befo~ ~[eznand~ t)aYmem fzom
C-uarant~r.
DEFI~H .tONS:
"Collate-cai" means any property taker~ as secuz/t7 for ~m of ~e ~ote or ~y ~tee o~ ~e Hoto.
~. m~ ~ 1o~ ~i~d by ~e Note.
'%om ~c~n~' ~ ~e do~ ~lated to ~e ~ ~d by Bo~, ~ or ~ o~ ~, ~
my~e w~ ple~s Co~a~L
'~BA" m~ ~e Smal! B~ms Admi~i~fiog ~Ag~0y of~e U~ted S~ms of ~.
SBA For~ 1~ (lO~l) L%~/o~ edfl/ea.~ obao/~te.
LENDER'S GENERAL POWERS:
Lender may,tak~ any of' the following ao~ionz at any tLn~, without no,ce, wlth~ut Guarantor's con~*nt, and without
maldng domand upoa Guarantor:
A. Modihy the terms o f the Note or any other Loan Document except to in~','~ase th~ amounta due uader the Note;
B. Refi'ain from taking any acfon on the Note, the Collateral, or any gum~ntee;
C. Release any Borrower or any guarantor o£ the Note;
D. Compror~e or settle with th~ Borrower or any guatamor of the Note;
E. Substitute or r~lea~ any of the Collat~al, wh~ther or not Lendor r~eiv~s anyth~ ia return:
F. Foreclose up. on or otherwise obt~;n, and dispose of, any Collateral at public or private sale, with or without
advertisement;
G-. Bid or buy at any sale of Collateral by Lender or any other li~n~hold~r, at any price Lender chooses; and
H. E.x~r~isa any rights it has, including those in the Note and other Loan D0ctn'a~ts.
~Fnese actions will not mlense or reduce thc obligations of Guarantor or czeate any rights or claims against L~nder.
FEDERAL LAW:
When SBA i~ the holder, th~ Note and this Guarantee will be cons~s'uad and ~'orced trade' red,al law, including SBA
regulalions. Lender or SBA m~y use state or local proc~dur~ for filing pal~-~, renordi~ documents, giving notice,
for~cloaing liens, and other porpos~. By using such P~°Ceduras, SBA does not waive any federal immunity from state or
local control, penalty, tax, or liability. As to this Guaranty, Guetantor may not claim or assert any local or state law
against SBA to dony any ob/igation, defeat any claim of SBA, or preempt fede~ law.
RIGHTS, NOTICES, AND D,~I-.~ISES THAT GUARANTOR WAIVES:
To th~ extent permitted by law, ,
A. Cm~u~tor waives al/rights to:
1) R~quite pr~santment, pwte~t, or dem~,nd upon Borrower;,
2) Red,em any Collateral before or atier L~der disposes of it;
3) Have any disposition o£Collateral adv~t~.s~d; end
4) Requir~ a valuation of Colhteral before or aRer l.~. dot disposes of it.
B. Guarantor waives any notice of:
1) /U~y default undor the Note;
2) Pm.~ntm~nt, dishonor, protest, or
3) Ex~-ution of the Note;
4) Any action or inaction on thc Note or Collate'al, such as disbur~emants, payment, no=payment, acceleration,
intent to accelerate, assignment, collestiotl activity, and incurring eot'owement expe~es;
5) Any c~-,~?, in thc rmanclal condition or bus/n~s uperation~ ofBon, ower or any
6) Any ch~es in the terms ~f the N~te ~r ~ther L~an D~uments~ excePt inc~asa$ in the am~unts due u~dor 8~
Note; anti
7) Thc 6~ or place of any sale or other disposition of Collateral.
C. Guarantor wa/yes dofe'n.~es based upon any claim that:
1) Lender failed to obtain any guarantee;
2) Lendor failed to obtein, perfect, or r,,.~,'~-~ e so=~rit7 inter~t in any property offered or taken as CoIlat~al;
3) lender or oth~r~ iml~p~ly valued or im~eeted th~ Collateral;
4) Thc Collater~ eE.~ed in value, or w~ neglected, 1o~ destroyed, or ~mder/nsu~d;
fig (10/~g) Pr~ious ~li~ioas ob~l~t~. P~ Z/5
5) Lender impaired ~he Collateral:
6) Lender did not dispose of any of the Col!ate.~:
Lender did not conduct a commercially reasonable sale:
8) Lender did not obtain the t~.ir market value of the Coliaterak
9) Lender did no~ make or perfect a claim tr~n the death or disabill~ of Borrower or any gum'antor of the
Note:
10) The t'maneial condition of Borrower or any guarantor was overstated or has adver~ly
11) Lender rr~de errors or omissions in Loan Documents or administratiun of the Lean:
12) Lender did not seek payment fi.om the Borrower, eny other guarantors, or any Collateral before demanding
payment fi.nm C, uaromor:
13) Lender impaired Guarantor's sure~'s~i?
14) Lender modified the Note terms, other th. an to incrsaee amounts due under th~ Note, ~ Lender tonalities the
Note to incr=ase the amounts due under the Note :vithout Cmarantor's consent, Guarantor v,'ill not be liable
for ~he increa.s~d amounts and related interest and expenses, but r~aain~ liable for all other amounts;
I.5) Borrower has avoided liability, on the Note; or
16) Lender has taken an action allowed under the Note, this Ouarantee, or other Loan Documents.
DU~S AS TO COLLATERAL:
Guarantor will praserve the C~llateral plec~ed by G~arantor to secure this Ca~ra~tee. Lender has no duty ~o presorve or
dispose of any Coliateral.
SUCCESSORS AND ASSIGNS:
Under this Guarantee, Guarantor includes h~'s and succossors, and Lender includes its successors and assigm.
OENA-RAL PROVISIONS:
A. ENFORCE2MENT EXPENSES. Cam'antor promises to pay all exlmaSes Lender incurs to enforce this Cmaram~e,
including, but not limited to, attorney's fees and costs.
B. SBANOTACO-GUARANTO1L Guarantor'sliabilirywillconthaue even ifSBA pays Lander. SBA is not a an-
guarantor with C, uaranter. Guarantor has no fight of eontributiun fi.om SBA.
C. SUBROGATION RIOHTS. C_matantor has no subrogation fights as to the Note or the Collateral until the Note is
paid in full.
D. ./OIINT AND SEVERAL LIA.BI'LITY. AL1 individuals and entities siffnlng as Cma.rmator are jointly and severally
E. DOCUIvlENT SIC;iNrI~G. Guarantor muxt $i~ all deouments neeesmry at any time to comply with the Loan
Documents and to enable Lender to acquire, perfect, ox' mahatain Leader's lians on Collateral.
F. FINANCIAL STA"~I~ME~S. Guarantor must ~ive Lender f'man¢ial statements as Lettder requires.
O. .LENDER'S RIGI-1TS C~TIVE, NOT WAIVED. Lender may exercise any of its fights separately or
together, as many times as it ehcosea. Lender may delay or forgo enforcing any of its rights without losing or
impairing any of them.
ORAL STATEIVIElqT$ NOT BINDIIqO. Guarantor may not use an oral statement to contradict or alter the written
terms of the Note or th/s Guarantee, or to raise a defe'~se to this Cmarantet:,
SEVERABIL1TY. I.f any pm of this Guarantee is found to be unenforceable, all other parts will re'main in effect.
CONSIDERATION. The consideration for this Guarantee is the Loan or any accommodation by Lander aa to the
Loan.
SBA Form 148 (10/9{) Pr~iou~ ~ditlaum obmoiat~.
I0. STATE-SPECIFIC PROVISIONS:
THE CONFESSION OF JUDGMENT BELOW IS PART OFTHIS OBLIGATION.
THE UNDERSIGNED HEREBY AUTHORIZES AND EM~OYVERS ANY ATTORNEY OR
CLERK OF ANY COURT OF RECORD IN THE UNITED STATES OR ELSEWHERE TO
APPEAR FOR AND, WITH OR WITHOUT DECLARATION FILED, CONFESS
JUDGMENT AGAINST THE UNDERSIGNED IN FAVOR OF THE LENDER STATED IN
THE GUARANTY HEREOF, OR ANY ASSIGNEE OR SUCCESSOR OF LENDER. AT
ANY TERM. FOR THE FULL OR TOTAL AMOUNT AS SET FORTH IN THE
GUARANTY TOGETHER WITH ALL "LIABILITIES" PROVIDED FOR THEREIN WITH
COSTS OF SUIT AND ATTORNEY'S COMMISSION OF TEN (10) PERCENT FOR
COLLECTION: AND THE UNDERSIGNED E,'K'PRESSLY RELEASES ALL ERRORS.
WAIVES .-LLL STAY OF EX'ECUTION. RIGHTS OF INQUISITION AND EXTENSION
UPON ANY LEVY UPON REAL ESTATE AND ALL EXEMPTION OF PROPERTY FROM
LEVY AND SALE UPON ANY EXECUTION HEREON, AND THE UNDERSIGNED
EXPRESSLY AGREES TO CONDEMNATION AND EXPRESSLY RELINQUISHES ALL
RIGHTS TO BENEFITS OR EXEMPTION UNDER ANY AND ALL EXEIVLPTION LAWS
NOW IN FORCE OR WHICH MAY HEREA~- I gR BE ENACTED.
I 1. GUARA,~rI'OR ACKNOWL~DGMES'qT OF T'EI~MS,
~uar=n£or acknowledg, es that G~a~n~or l~s r~ad snd under~mncls thc si~cance of all terr~ ofthe Note and tiffs
Gu~an~e,/~ludlng all wa/ver~.
12. GUARANTOR NA:vIS(S) A.ND SIGNATURE (S):
By si~m~"ig beDw, each individttal or'en(ity becomes obligated as Guarantor tmd~r this Guarantee.
4707 North
~ ~{ll,
SBA Fo~ 1~ (10/9~) Prrv/ou~ ~//fi~ ob~o~-t~.
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA:
: SS.
COUNTY OF LUZERNE :
I, Joseph E. Sweeney, being duly sworn according to law, depose and say that I am an
Assistant Vice President of Citizens Bank of Pemasylvania. I am duly authorized to make this
affidavit on its behalf. On September 11, 2003, the amount owed to Mellon Bank, N.A., now by
assignment, Citizens Bank of Pe~msylvania, pursuant to the Note, was as follows:
Sworn to and subscribed
before me this ~ day of
,2003.
Lupine ~o- L~ Co~
Principal balance on Note ................... $87,910.90
Interest to 09/11/03 ......................... $ 3,177.16
Attorneys' Fees (20%) ...................... $18,217.61
TOTAL ........ $109,305.67, plus interest
and costs
y, Assistant Vice President
574719.1
EXHIBIT "C"
AFFIDAVIT OF LAST KNOWN ADDRESS
COMMONWEALTH OF PENNSYLVANIA:
: SS.
COLrNTY OF LUZERNE :
I, Joseph E. Sweeney, Assistant Vice President of Citizens Bank of Pennsylvania, being duly
sworn according to law, depose and say that the last known address of the defendants is as follows:
Sherry V. Yearick Ritchey Dennis R. Ritchey
4707 North Clearview Drive 4707 North Clearview Drive
Camp Hill, PA 17011 Camp Hill, PA 17011
/~E. Sweeney'fAssistant Vice President
Sworn to and subscribed before me
this ~.~a day of ~W, 2003.
~OIAR[AI. S~L
IJl~e 8oro- I.uz~me Counly
~ ~omml~lon E~oir~ ~b. 02, 2004
574711.1
AFFIDAVIT OF
NON-MILITARY SERVICE OF DEFENDANTS
COMMONWEALTH OF PENNSYLVANIA:
:SS
COUNTY OF LUZERNE :
I, Joseph E. Sweeney, Assistant Vice President of Citizens Bank of Pennsylvania, being duly
sworn according to law, depose and say that I did investigate the status of Sherry V. Yearick
Ritchey and Dennis R. Ritchey with regard to the Soldiers' and Sailors' Civil Relief Act of 1940.
To the best of my knowledge or information and belief, Sherry V. Yearick Ritchey and Dennis R.
Ritchey are not now, or were they within a period of the last three (3) months, in the military or
naval service of the United States within the purview of the Soldiers' and Sailors' Civil Relief Act
o£1940.
Swee~ey,
Assistant Vice President
Sworn to and subscribed
before me this )-~ day of
NOTARIAL
I TERRI C. SMITH, Notary Public
~ 8oro- Luzerne County
s'747o~.~ My Comml~a~ E~ites Feb. 02, 2004
CERTIFICATION OF COMMERCIAL TRANSACTION
I, Joseph E. Sweeney, Assistant Vice President of Citizens Bank of Pennsylvania, depose
and say, subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsification to
authorities, that the underlying transaction relative to this complaint in confession of judgment is a
commercial transaction to the best of my knowledge or information and belief.
Assistant Vice President
574715.1
Prothonotary
Court of Common Pleas
Cumberland County Courthouse
Carlisle, PA 17013
CUMBERLAND COUNTY PENNSYLVANIA
TO:
Sherry V. Yearick Ritchey
4707 North Clearview Drive
Camp Hill, PA 17011
Dennis R. Ritchey
4707 North Clearview Drive
Camp Hill, PA 17011
AS PRESCRIBED BY LAW, YOU ARE NOTIFIED THAT A JUDGMENT HAS
BEEN FILED 1N THIS OFFICE AGAINST YOU BY CITIZENS BANK OF
PENNSYLVANIA IN THE AMOUNT OF $109,305.67, TOGETHER WITH INTEREST
FROM SEPTEMBER 11, 2003, AND COSTS UNTIL PAID, ON THE __ DAY OF
,2003.
Yours truly,
Prothonotary
574700.1
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T. SHOEMAKER, ESQUIRE
IDENTiFiCATiON NO. 63871
LAW OFFICES
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
MELLON BANK, N.A., now by assignment,
ATTORNEY FOR pLAINTIFF
IN THE cOURT OF COMMON PLEAS
CITIZENS BANK OF PENNSYLVANIA
8 West Market Street
Wilkes-Barre, PA 18711-0101,
Plaintiff
VS.
SHERRY V. YEARICK RITCHEY and
DENNIS R. RITCHEY
4707 North Clearview Drive
Camp Hill, PA 17011,
Defendants
OF CUMBERLAND COUNTY
CIVIL ACTION -- LAW
IN CONFESSION OF JUDGMENT
NO. 03-5131 Civil
AFFIDAVIT OF RETURN OF SERVICE BY MAIL
On October 1,2003, I mailed the requisite 2958.1 Notice via certified mail, return receipt requested,
and regular mail to Defendants, Sherry V. Yearick Ritchey and Dennis R. Ritchey. Dennis R. Ritchey
signed both of the return receipts upon delivery and the receipt, attached here as Exhibit "A" was returned
by the post office on October 3, 2003.
I make these statements pursuant to 18 PA. Cons. Stat. §4904 relating to unswom falsification to
authorities and understand that false statements may subject me to criminal penalties under that statute.
[ NOTARIAL SEAL
/ ROSEMARIE McCOY, NOTARY PUBLIC
/WILKES-BARRE, LUZERNECOUNTY PA
578000.1 ~MY COMMISSION EXPIRES MAR. 5, 2005
James T. Shoemaker, Esquire
Attorney for Plaintiff
ReceNedby
· Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
· Print your name and address on the reveme
so that we can return the card to you.
· Attach this card to the back of the mailpiece,
or on the front if space permits, different [] yes
1. Article Addressed to: If YES, enter delivery address below: [] No
- f ] [] Certified Mail [] Express Ma
~ [ [] Rsgistered [] Retarn Receipt for MerChandise
- ! [] Insured Mail [] C.O.D.
[~*~ ~'FJO~ ~44. RestHcted Deliv----'~'---~ery? (Extra Fee) []Yes **
,S~~~1999 Domestm' Return Receipt
· Complete items 1, 2,
item 4 if Restricted Deliver~
· Print your name and address on the ~
so that we can return the card to
· Attach this card to the back of the rr Addressee
or on the front if space permits, item 17 [] Yes
if YES, enter delivery address belOW: [] No
Article ~dressed to:
I r'l Registered [] Return Receipt for Merchandise
. ~.~.~ [ [] Insurecl M~il [] C.O.D.
UNITED STATES BANKRUPTCY COURT
FOR'THE MIDDLE DISTRICT OF PENNSYLVANIA
IN RE:
SHERRY Y. RITCHEY, and
DENNIS R. RITCHEY
Debtors
SHERRY Y. RITCHEY, and
DENNIS R. RITCHEY
Movants
MELLON BANK, N.A., now by
assignment, CITIZENS BANK OF
PENNSYLVANIA
Respondent
IN BANKRUPTCY
BK. NO. 1-04-04580
CHAPTER 7 PROCEEDING
LIEN AVOIDANCE
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA'
NO. 03-5131 CIVIL
:
ORDER OF COURT FOR JUDGMENT BY DEFAULT
AND NOW, this a~qt//~ffay of ~ ,2004, in consideration of the within
Motion for Judgment by Default filed by ctounsel for Debtors/Movants, the Court finds that the
Respondent has failed to file. an Answer or otherwise plead to the Motion for an Order Avoiding
Judicial Lien filed on August 13, 2004 and duly served upon the Respondent on August 18, 2004;
therefore, the Court orders judgment by default in favor of the Movants, Sherry Y. and Dennis R.
Ritchey, and against the Respondent, Citizens Bank of Pennsylvania to the relief requested in the
Motion.
IT IS HEREBY ORDERED, adjudged and decreed that the judgment lien held by the
Respondent is hereby declared void in its entirety and of no fresher force and effect as it violates 11
U.S.C. Section 522(0(1 ) and interferes with 11 U.S.C. Section 522(d).
PA
Clerk, U.S. Bankruptcy Court
3:? 2 7 ~
BY TltE COURT:
Bankm
CERTIFIED THE RECORD this
Per