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HomeMy WebLinkAbout07-5883HENRY & 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. RANDY L. MOYER, 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 Defendant as follows: Principal Sum Due - $ 59,876.93 Interest to 9/26/2007 - 488.57 Late Charges to 9/26/2007 - 2,232.57 Attorney's Fees - 10.000.00 Total - $ 72,598.07 Plus all future accruing interest after September 26, 2007, and after entry of judgment at the contract rate ($16.22 per diem) until paid in full, reasonable attorneys' fees, late No. bq- 5883 No ( Ierr'? Defendant fees after September 26, 2007, and accruing on and after the 6th day of each month in the amount of $50.00, together with costs of suit and all other amounts, fees and costs incidental to or expended by Bank to preserve it's collateral. HE By: Prothonotary - 2 - 1. U. 455/ /4 Attorney for Defendant 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. RANDY L. MOYER, Defendant No. 09- Civil (erM COMPLAINT CONFESSION OF JUDGMENT Plaintiff files this Complaint pursuant to Pa. R.C.P. No. 2951(b) for judgment by confession and avers the following: 1. The Plaintiff is Manufacturers and Traders Trust Company, a New York banking corporation with an office located at M&T Bank, Special Assets, 213 Market Street, Troup Building - 4th Floor, Harrisburg, Pennsylvania 17101-2141. 2. Defendant, Randy L. Moyer, is an adult individual last known to reside at Nine Hamilton Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 3. Attached hereto as Exhibit "A" is a true and correct copy of the Term Note/Line-of-Credit (the "Note") duly executed by Defendant. 4. The Note has not been assigned. 5. Judgment has not been entered on the Note in any jurisdiction. 6. Default was made by the Defendant upon the Note in his failure to pay the same in full upon maturity and in his failure to meet demand for payment in full, whereby the entire sum is in default and immediately due and payable. 7. As a consequence of the foregoing and pursuant to the Warrant of Attorney in the Note, Defendant is liable to Plaintiff as follows: Principal Sum Due - $ 59,876.93 Interest to 9/26/2007 - 488.57 Late Charges to 9/26/2007 - 2,232.57 Attorney's Fees - 10.000.00 Total - $ 72,598.07 Plus all future accruing interest after September 26, 2007, and after entry of judgment at the contract rate ($16.22 per diem) until paid in full, reasonable attorneys' fees, late fees after September 26, 2007, and accruing on and after the 6th day of each month in the amount of $50.00, together with costs of suit and all other amounts, fees and costs incidental to or expended by Bank to preserve it's collateral. 8. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 9. Attached hereto and incorporated herein as Exhibit "B" is the Notice to Defendant required by 42 Pa.C.S.A. §2737.1. WHEREFORE, Plaintiff demands judgment in the sum of: - 2 - Principal Sum Due - $ 59,876.93 Interest to 9/26/2007 - 488.57 Late Charges to 9/26/2007 - 2,232.57 Attorney's Fees - 10,000.00 Total - $ 72,598.07 Plus all future accruing interest after September 26, 2007, and after entry of judgment at the contract rate ($16.22 per diem) until paid in full, reasonable attorneys' fees, late fees after September 26, 2007, and accruing on and after the 6th day of each month in the amount of $50.00, together with costs of suit and all other amounts, fees and costs incidental to or expended by Bank to preserve it's collateral, as authorized by the Warrant of Attorney appearing in the Note. HE By: I . D. #55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 Attorney for Plaintiff - 3 - NOTICE TO THE DEBTOR/DEFENDANT AS REQUIRED BY 42 Pa.C.S.A. 152756 To: Mr. Randy L. Moyer Nine Hamilton Road Boiling Springs, PA 17007 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 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. RANDY L. MOYER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : No. COMMONWEALTH OF PENNSYLVANIA : COUNTY OF DAUPHIN ss. Walter Leader, Banking Officer, 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 Term Note / Line-of-Credit, 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. COMMONWEALTH OF PENNSYLVANIA MANUFACTURERS AND TRADERS Notarial Seal TRUST COMPANY Edie I. LM4e, Notary Public G}tyOi`Lebanon, Lebanon Cotx>ty My i0m n fission Exl*w Oa. 11, 2M By: Member, renns*aniaAssociationotNpt d" Walter Leader Banking Officer Sworn and subscribed o before me this dp"f , 2007. Notary M&T Bank Menjea- and Traders Tnt C-P-Y TERM NOTE - LINE OF CREDIT November 2_1 , 2006 $60,000.00 For value. received, the undersigned RANDY L. MOYER, an individual, with an address of 9 Hamilton Drive, Boiling Springs, Pennsylvania 17007 (the "Borrower"), promises to pay to the order of Manufacturers and Traders Trust Company, a New York banking corporation with an address of One M&T Plaza (Attn: Office of General Counsel), Buffalo, New York 14203 (together with its successors and assigns, the "Bank"), the principal amount of. Sixty Thousand Dollars and Zero Cents ($60,000.00), or, if less, such amount as may be the aggregate unpaid principal amount of all loans or advances made by the Bank to the Borrower pursuant hereto, on or before February 28, 2007 (the "Maturity Date"), as set forth below, together with interest from the date hereof on the unpaid principal balance from time to time outstanding until paid in full. The aggregate principal balance outstanding shall bear interest thereon at a per annum rate equal to Two Percent (2.00%) above the Prime Rate (as hereinafter defined). All accrued and unpaid interest shall be payable monthly in arrears on the 317-Lt of each month, commencing on December,_ 2006. Reference is hereby made to a certain loan agreement dated on or about the date hereof between the Borrower and the Bank for additional terms and conditions applicable to this Note. This Note evidences a line of credit to finance business operations and/or acquisitions of the Borrower. Advances shall be made subject to the foregoing and in accordance with the provisions hereof and of any and all other agreements between the Borrower and the Bank related hereto and shall in any event be made in the sole discretion of the Bank. Advances may be made from time to time until February 28, 2007. Prime Rate means the rate per annum from time to time established by the Bank as the Prime Rate and made available by the Bank at its main office or, in the discretion of the Bank, the base, reference or other rate then designated by the Bank for general commercial loan reference purposes, it being understood that such rate is a reference rate, not necessarily the lowest, established from time to time, which serves as the basis upon which effective interest rates are calculated for loans making reference thereto. The effective interest rate applicable to the Borrower's loans evidenced hereby shall change on the date of each change in the Prime Rate. Principal and interest shall be payable at the Bank's main office or at such otheraplace as the States Bank may designate in writing in immediately ntercla counterclaim. shall' be calculated c?latedoon'the bass of actual America without set-off, deduction number of days elapsed in a 360-day year. At the option of the Bank, this Note shall become immediately due and payable without notice or demand upon the occurrence at any time of any of the following events of default (each, an "Event of Default"): (1) default of any liability, obligation, covenant or undertaking of the Borrower, any endorser or any guarantor hereof to the Bank or Bank Affiliates (as hereafter defined), hereunder or otherwise, including, without limitation, failure to pay in full and when due any installment of principal or interest or default of the Borrower, any endorser or any guarantor hereof under any other loan document delivered by the Borrower, any endorser or any guarantor, or in connection with the loan evidenced by this Note or any other agreement by the Borrower, any endorser or any guarantor with the Bank; (2) failure of the. Borrower, any endorser or any guarantor hereof to maintain aggregate collateral security value EXHIBIT satisfactory to the Bank; (3) default of any material liability, obligation or undertaking of the Borrower, any endorser or any guarantor hereof to any other party; (4) if any statement, representation or warranty heretofore, now or hereafter made by the Borrower, any endorser or any guarantor hereof in connection with the loan evidenced by this Note or in any supporting financial statement of the Borrower, any endorser or any guarantor hereof shall be determined by the Bank to have been false or misleading in any material respect when made; (5) if the Borrower, any endorser or any guarantor hereof is a corporation, trust, partnership or limited liability company, the liquidation, termination or dissolution of any such organization, or the merger or consolidation of such organization into another entity, or its ceasing to carry on actively its present business or the appointment of a receiver for its property; (6) the death of the Borrower, any endorser or any guarantor hereof and, if the Borrower, any endorser or any guarantor hereof is a partnership or limited liability company, the death of any partner or member; (7) the institution by or against the Borrower, any endorser or any guarantor hereof of any proceedings under the Bankruptcy Code 11 USC §101 et seq. or any other law in which the Borrower, any endorser or any guarantor hereof is alleged to be insolvent or unable to pay its debts as they mature, or the making by the Borrower, any endorser or any guarantor hereof of an assignment for the benefit of creditors or the granting by the Borrower, any endorser or any guarantor hereof of a trust mortgage for the benefit of creditors; (8) the service upon the Bank of a writ in which the Bank is named as trustee of the Borrower, any endorser or any guarantor hereof; (9) a judgment or judgments for the payment of money shall be rendered against the Borrower, any endorser or any guarantor hereof, and any such judgment shall remain unsatisfied and in effect for any period of thirty (30) consecutive days without a stay of execution; (10) any levy, lien (including mechanics lien), seizure, attachment, execution or similar process shall be issued or levied on any of the property of the Borrower, any endorser or any guarantor hereof; (11) the termination or revocation of any guaranty hereof; or (12) the occurrence of such a change in the condition or affairs (financial or otherwise) of the Borrower, any endorser or any guarantor hereof, or the occurrence of any other event or circumstance, such that the Bank, in its sole discretion, deems that it is insecure or that the prospects for timely or full payment or performance of any obligation of the Borrower, any endorser or any guarantor hereof to the Bank has been or may be impaired. BORROWER HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR ATTORNEYS OR THE PROTHONOTARY OR CLERK OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR IN ANY OTHER JURISDICTION, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, TO APPEAR FOR BORROWER IN ANY SUCH COURT, WITH OR WITHOUT DECLARATION FILED, AS OF ANY TERM OR TIME THERE OR ELSEWHERE TO BE HELD AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST BORROWER IN FAVOR OF THE BANK FOR ALL SUMS DUE OR TO BECOME DUE BY BORROWER TO THE BANK UNDER THIS NOTE, WITH COSTS OF SUIT AND RELEASE OF ERRORS AND WITH THE GREATER OF FIVE PERCENT (5%) OF SUCH SUMS OR $10,000 ADDED AS A REASONABLE ATTORNEY'S FEE AND FOR DOING SO THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. SUCH AUTHORITY AND POWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF, AND JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS THERE IS OCCASION THEREFOR. BORROWER ACKNOWLEDGES THAT IT HAS BEEN OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY COUNSEL IN CONNECTION 'v-v11 H THE EXECUTi0111 AND DELIVERY OF THIS NOTE AND THAT IT KNOWINGLY WAIVES ITS RIGHT TO BE HEARD PRIOR TO THE ENTRY OF SUCH JUDGMENT AND UNDERSTANDS THAT, UPON SUCH ENTRY, SUCH JUDGMENT SHALL BECOME A LIEN ON ALL REAL PROPERTY OF BORROWER IN THE COUNTY WHERE SUCH JUDGMENT IS ENTERED. Payments may be applied in any order in the sole discretion of the Bank but, prior to default, shall be applied first to past due interest, expenses (which shall include all fees and costs, as well as all disbursements incurred by the Bank to preserve or enforce its rights under this Note or any other document executed in connection herewith), late charges and principal; then to current interest, expenses, late charges and principal, and last to remaining principal. Notwithstanding the foregoing, any payments received after the occurrence and during the continuance of an Event of Default shall be applied in such manner as the Bank may determine. The Borrower hereby authorizes the Bank to charge any deposit account which the Borrower may maintain with the Bank for any payment required hereunder without prior notice to the Borrower. If pursuant to the terms of this Note, the Borrower is at any time obligated to pay interest on the principal balance at a rate in excess of the maximum interest rate permitted by applicable law for the loan evidenced by this Note, the applicable interest rate shall be immediately reduced to such maximum rate and all previous payments in excess of the maximum rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. The Borrower represents to the Bank that the proceeds of this Note will not be used for personal, family or household purposes or for the purpose of purchasing or carrying margin stock or margin securities within the meaning of Regulations U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224. The Borrower and each endorser and guarantor hereof grant to the Bank a continuing lien on and security interest in any and all deposits or other sums at any time credited by or due from the Bank (or any of its banking or lending affiliates, or any bank acting as a participant under any loan arrangement between the Bank and the Borrower, or any third party acting on the Bank's behalf (collectively, the "Bank Affiliates")) to the Borrower and/or each endorser or guarantor hereof and any cash, securities, instruments or other property of the Borrower and each endorser and guarantor hereof in the possession of the Bank or any Bank Affiliate, whether for safekeeping or otherwise, or in transit to or from the Bank or any Bank Affiliate (regardless of the reason the Bank or Bank Affiliate had received the same or whether the Bank or Bank Affiliate has conditionally released the same) as security for the full and punctual payment and performance of all of the liabilities and obligations of the Borrower and/or any endorser or guarantor hereof to the Bank or any Bank Affiliate and such deposits and other sums may be applied or set off against such liabilities and obligations of the Borrower or any endorser or guarantor hereof to the Bank or any Bank Affiliate at any time, whether or not such are then due, whether or not demand has been made and whether or not other collateral is then available to the Bank or any Bank Affiliate. No delay or omission on the part of the Bank in exercising any right hereunder shall operate as a' waiver of such right or of any other right of the Bank, nor shall any delay, omission or waiver on any one occasion be deemed a bar to or, waiver of the same or any other right on any future occasion. The Borrower and every endorser or guarantor of this Note, regardless of the time, order or place of signing, waives presentment, demand, protest, notice of intent to accelerate, notice of acceleration and all other notices of every kind in connection with the delivery, acceptance, performance or enforcement of this Note and assents to any extension or postponement of the time of payment or any other indulgence, to any substitution, exchange or release of collateral, and to the addition or release of any other party or person primarily or secondarily liable and waives all recourse to suretyship and guarantor defenses generally, including any defense based on impairment of collateral. To the maximum extent permitted by law, the Borrower and each endorser and guarantor of this Note waive and terminate any homestead rights and/or exemptions respecting any premises under the provisions of any applicable homestead, laws, including without limitation, Title 42, Section 8123, of the Pennsylvania Consolidated Statutes Annotated. Borrower hereby waives and releases all errors, defects and imperfections in any proceedings instituted by the Bank under the terms of this Note or any other loan documents, as well as all benefits that might accrue to the Borrower by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of such property, from attachment, levy or sale under execution or providing for any stay of execution, exemption from civil process or extension of time for payment, as well as the right of inquisition on any real estate that may be levied upon under a judgment obtained by virtue hereof, and Borrower hereby voluntarily condemns the same and authorizes the entry of such voluntary condemnation on any writ of execution issued thereon, and agrees that such real estate may be sold upon any such writ in whole or in part in any order desired by the Bank. The Borrower and each endorser and guarantor of this Note shall indemnify, defend and hold the Bank and the Bank Affiliates and their directors, officers, employees, agents and attorneys harmless 3 against any claim brought or threatened against the Bank by the Borrower, by any endorser or guarantor, or by any other person (as well as from attorneys' reasonable fees and expenses in connection therewith) on account of the Bank's relationship with the Borrower or any endorser or guarantor hereof (each of which may be defended, compromised, settled or pursued by the Bank with counsel of the Bank's selection, but at the expense of the Borrower and any endorser and/or guarantor), except for any claim arising out of the gross negligence or willful misconduct of the Bank. The Borrower and each endorser and guarantor of this Note agree to pay, upon demand, costs of collection of all amounts under this Note including, without limitation, principal and interest, or in connection with the enforcement of, or realization on, any security for this Note, including, without limitation, to the extent permitted by applicable law, reasonable attorneys' fees and expenses. Upon the occurrence and during the continuance of an Event of Default, interest shall accrue at a rate per annum equal to the aggregate of 4.0% plus the rate provided for herein. If any payment due under this Note is unpaid for 5 days or more, the Borrower shall pay, in addition to any other sums due under this Note (and without limiting the Bank's other remedies on account thereof), a late charge equal to the greater of $50 or 5.0% of such unpaid amount. This Note shall be binding upon the Borrower and each endorser and guarantor hereof and upon their respective heirs, successors, assigns and legal representatives, and shall inure to the benefit of the Bank and its successors, endorsees and assigns. The liabilities of the Borrower and any endorser or guarantor of this Note are joint and several; provided, however, the release by the Bank of the Borrower or any one or more endorsers or guarantors shall not release any other person obligated on account of this Note. Any and all present and future debts of the Borrower to any endorser or guarantor of this Note are subordinated to the full payment and performance of all present and future debts and obligations of the Borrower to the Bank. Each reference in this Note to the Borrower, any endorser, and any guarantor, is to such person individually and also to all such persons jointly. No person obligated on account of this Note may seek contribution from any other person also obligated, unless and until all liabilities, obligations and indebtedness to the Bank of the person from whom contribution is sought have been irrevocably satisfied in full. The release or compromise by the Bank of any collateral shall not release any person obligated on account of this Note. The Borrower and each endorser and guarantor hereof each authorizes the Bank to complete this Note if delivered incomplete in any respect. A photographic or other reproduction of this Note may be made by the Bank, and any such reproduction shall be admissible in evidence with the same effect as the original itself in any judicial or administrative proceeding, whether or not the original is in existence. This Note is delivered to the Bank at one of its offices in Pennsylvania, shall take effect as a sealed instrument and shall be governed by the laws of the Commonwealth of Pennsylvania without giving effect to the conflicts of laws principles thereof, excluding its conflicts of laws rules. Any demand or notice hereunder or under any applicable law pertaining hereto shall be in writing and duly given if delivered to any party hereto at the address for such party as set forth herein, or at such • J L. by . the t? is ..L ofL..e.. ...-F par si.-. other address as any party may from time to time designate in written notice received ires hereto; provided, however, that in order for any notice to the Bank to be deemed effective, a duplicate notice shall be separately delivered to the Bank at the current office address of the Bank officer primarily responsible for the customer account to which this document relates. Any such demand or notice 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 three (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. Notice by e- mail is not valid notice under this or any other agreement between the undersigned parties. Except as set forth below, no change in this Note or waiver of any right or remedy hereunder can be made except in a writing signed 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 4 right or remedy of the Bank. No waiver of any right or remedy of the Bank shall be effective unless made specifically in writing by the Bank. This Note, together with any related loan and security agreements and guaranties, contains the entire agreement between the Borrower and the Bank with respect to the Note, and supersedes every course of dealing, other conduct, oral agreement and representation previously made by the Bank. If there is more than one obligor to the Bank named herein and signing below, each such obligor shall be jointly and severally liable for the payment of all amounts and performance of all obligations required hereunder. Preauthorized Transfers from Deposit Account. If a deposit account number is provided in the following blank Borrower hereby authorizes the Bank to debit Borrower's deposit account # 43 '? ?? -A, L-7 with the Bank automatically for any amount which becomes due under this N ote. The Borrower and each endorser and guarantor of this Note each irrevocably submits to the nonexclusive jurisdiction of any Federal or state court sitting in Pennsylvania, over any suit, action or proceeding arising out of or relating to this Note. Each of the Borrower and each endorser and guarantor irrevocably waives, to the fullest extent it may effectively do so under applicable law, any objection it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that the same has been brought in an inconvenient forum. Each of the Borrower and each endorser and guarantor hereby consents to any and all process which may be served in any such suit, action or proceeding, (i) by mailing a copy thereof by registered and certified mail, postage prepaid, return receipt requested, to the Borrower's, endorser's or guarantor's address shown below or as notified to the Bank and (ii) by serving the same upon the Borrower(s), endorser(s) or guarantor(s) in any other manner otherwise permitted by law, and agrees that such service shall in every respect be deemed effective service upon the Borrower or such endorser or guarantor. THE BORROWER, EACH ENDORSER AND GUARANTOR AND THE BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, (A) WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN CONNECTION WITH THIS NOTE, ANY OF THE OBLIGATIONS OF THE BORROWER, EACH ENDORSER AND GUARANTOR TO THE BANK, AND ALL MATTERS CONTEMPLATED HEREBY AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND (B) AGREES NOT TO SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CAN NOT BE, OR HAS NOT BEEN, WAIVED. THE BORROWER, EACH ENDORSER AND GUARANTOR AND THE BANK. EACH CERTIFIES THAT NEITHER THE BANK NOR ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK WOULD NOT IN THE EVENT OF ANY SUCH PROCEEDING. SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY. CONFESSION OF JUDGMENT THE TERMS OF THIS NOTE INCLUDE A WARRANT OF ATTORNEY TO CONFESS JUDGMENT AND HAVE BEEN NEGOTIATED AND AGREED UPON IN A COMMERCIAL CONTEXT. BORROWER HAS FULLY REVIEWED THE WARRANT OF ATTORNEY TO CONFESS JUDGMENT WITH ITS OWN COUNSEL, AND IS KNOWINGLY AND VOLUNTARILY WAIVING CERTAIN RIGHTS IT WOULD OTHERWISE POSSESS, INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO ANY NOTICE OF A HEARING PRIOR TO THE ENTRY OF JUDGMENT BY THE BANK PURSUANT TO THE FOREGOING WARRANT. 5 Executed as an instrument under seal as of November 11 , 2006. Witness: Borrower: L 4NDAYM0YER, ' dividually 9 Hamilton Drive Boiling Springs, Pennsylvania 17007 Authorization Confirmed: Signature per C.P. 4.15.10 GHD 6 FOR BANK USE ONLY n nnnC RA...7:..: .. '1:. ,:.........f 0....L..... C„sir...... L... 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. which have (2) Subdivision (g)(1) shall apply to (1) judgments entered prior to the effective date of subdivision (g) 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(1). 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" 1 Subd. (g)added by Order of Sept. 28, 2004, imd. effective. r 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. * x x w w w 11. 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". ? ? • w x The intent of these rules is to limit the necessity for hearings on issues of due process and waiver by providing the defendant with a pre-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 - -0 J Q C7 r cv--y ?? 1 OFFICE OF THE PROTHONOTARY COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TO: Mr. Randy L. Moyer Nine Hamilton Road Boiling Springs, PA 17007 MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS TRUST COMPANY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. : No. 01- 5883 Civil lem RANDY L. MOYER, 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 - $ 59,876.93 Interest to 9/26/2007 - 488.57 Late Charges to 9/26/2007 - 2,232.57 Attorney's Fees - 10.000.00 Total - $ 72,598.07 Plus all future accruing interest after September 26, 2007, and after entry of judgment at the contract rate ($16.22 per diem) until paid in full, reasonable attorneys' fees, late fees after September 26, 2007, and accruing on and after the 6th day of each month in the amount of $50.00, together with costs of suit and all other amounts, fees and costs incidental to or expended by Bank to preserve it's collateral. Copies of all documents filed are attached hereto. othonotary OK(3 4 5L 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. 0- 58$3 Omit f errA RANDY L. MOYER, Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY OF SAID COUNTY: Sir, please enter the appearance of Marc A. Hess, of the law firm of Henry & Beaver LLP, whose address is 937 Willow Street, P.O. Box 1140, Lebanon, Pennsylvania 17042-1140 as attorney for Manufacturers and Traders Trust Company, the Plaintiff in the above-captioned case. Dated: 006!` ? '2007 I.D. #55774 Attorney for Plaintiff f ? "J =' '?3 ?_a _? "i_i _., ; :.1 ?_ E C.7 ?-?: ?. _ _? ` '. , ? 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. RANDY L. MOYER, Defendant TO THE PROTHONOTARY: No. 2007-5883 PRAECIPE - SETTLE & DISCONTINUE X - SATISFY 4/^ DATE: Tl t?tl??( , 2007 HE By: I.D. #55774 Attorney for Plaintiff CD C -r