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HomeMy WebLinkAbout07-5886HENRY & 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. CYNTHIA L. DARR, Defendant No. bq- 5861 0-iv'( 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 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. Prothonotary HENR V LLP ?" / r - By: ? - ARC A. HES I . D. #55774 Attorney for Defendant - 2 - 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. CYNTHIA L. DARR, Defendant : No. 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, Cynthia L. Darr, is an adult individual last known to reside at Nine Hamilton Road, Boiling Springs, Cumberland County, Pennsylvania 17007. 3. On November 21, 2006, Plaintiff made a loan to Randy L. Moyer in the original principal amount of Sixty Thousand Dollars ($60,000.00) which loan was unconditionally guaranteed by the Defendant pursuant to the terms of a certain Unlimited Guaranty (the "Guaranty") duly executed by the Defendant. A true and correct copy of the Guaranty is attached hereto as Exhibit "A". 4. The Guaranty has not been assigned. 5. Judgment has not been entered on the Guaranty in any jurisdiction. 6. Default was made by the Defendant in her failure to pay the loan in full upon maturity and in her 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 Guaranty, 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. - 2 - 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: 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. HENRY LLR By: ;11¢ ARC AH5SS / . 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 §2756 To: Ms. Cynthia L. Darr 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. c 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 IN THE COURT OF COMMON PLEAS TRUST COMPANY, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW vs. No. CYNTHIA L. DARR, ; Defendant AFFIDAVIT 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 Unlimited Guaranty, 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. MMONWEALTH OF PENNSYLVANIA Notarial Seal Edte I. un*. Notary Public r"tYOfLebanon, Lebanon Count/ MyCOMttssion Expires Oct 11, 2008 MEmber, Pennsylvania Association Or Notaries worn and sub ribed to before me this day of , 2007. MANUFACTURERS AND TRADERS TRUST COMPANY By: CS Walter Leader Banking Officer Notary Manta=4arers any Tratlers Tres; C=pany UNLIMITED GUARANTY TO: Manufacturers and Traders Trust Company, a New York banking corporation (the "Bank") RE: RANDY L. MOYER, an individual (the "Borrower") To induce the Bank to make or continue to make loans, advances, or grant other financial accommodations to the Borrower, in consideration thereof and for loans, advances or financial accommodations heretofore or hereafter granted by the Bank to or for the account of the Borrower, the undersigned (the "Guarantor") absolutely and unconditionally guarantees the full and punctual payment to the Bank of all sums which may be presently due and owing and of all sums which shall in the future become due and owing to the Bank from the Borrower, whether direct or indirect, whether as a borrower, guarantor, surety or otherwise, including, without limitation, interest, attorneys' fees and other amounts accruing after the filing of a petition in bankruptcy by or against Borrower, notwithstanding the discharge of Borrower from such obligations, together with all costs and expenses incurred by the Bank in connection with such obligations, this Unlimited Guaranty (this "Guaranty") and the enforcement thereof, and also guarantees the due performance by the Borrower of all its obligations under all other present and future contracts and agreements with the Bank. This is a guaranty of payment and not collection. Guarantor also agrees: (1) to indemnify and hold the Bank and the Bank's directors, officers, employees, agents and attorneys harmless from and against all claims, obligations, demands and liabilities, by whomsoever asserted, and against all losses in any way suffered, incurred or paid as a result of or in any way arising out of or following or consequential to transactions with the Borrower, except for any claim arising out of the gross negligence or willful misconduct of the Bank; (2) that this Guaranty shall not be impaired by any modification, supplement, extension, renewal or amendment of any contract or agreement to which the parties thereto may hereafter agree, nor by any modification, increase, release or other alteration of any of the obligations hereby guaranteed or of any security therefor, nor by any agreements or arrangements whatsoever with the Borrower or anyone else, all of which may be done without notice to or consent by the. Guarantor; (3) that the liability of the Guarantor hereunder is direct and unconditional and due immediately upon default of the Borrower without demand or notice and without requiring the Bank first to resort to any other right, remedy or security; (4) that Guarantor shall have no right of subrogation, reimbursement or indemnity whatsoever until the Bank is indefeasibly paid in full, nor any right of recourse to security for the debts and obligations of the Borrower to the Bank; (5) that the liability of the Guarantor is unlimited and shall be joint and several with the liabilities of any other guarantors; (6) that if the Borrower or the Guarantor or any other guarantor should at any time become insolvent or make a general assignment, or if a petition in bankruptcy or any insolvency or reorganization proceedings shall be filed or commenced by, against or in respect of the Borrower or the Guarantor, or any other guarantor of the obligations guaranteed hereby, any and all obligations of the Guarantor shall be immediately due and payable without notice; (7) that the Bank's books and records showing the account between the Bank and the Borrower shall be admissible in any action or proceeding, shall be binding upon the Guarantor for the purpose of establishing the items therein set forth and shall constitute conclusive proof thereof, (8) that this Guaranty is, as to the Guarantor, a continuing Guaranty that shall remain effective under successive transactions until expressly terminated as hereinafter provided; (9) that this Guaranty may be terminated as to the Guarantor only by giving the Bank Sixty (60) days' prior written notice by registered or certified mail, and thereupon this Guaranty shall terminate with respect to Guarantor only at the expiration of said Sixty (60) day period, which shall then be the effective date of termination, and that such termination shall be applicable only to transactions having their inception after the effective date of termination and shall not affect rights and obligations arising out of transactions or indebtedness or extensions or renewals thereof having their inception prior to such date, including renewals, extensions, modifications and refinancings of such prior transactions, and also extensions of credit made pursuant to a commitment previously made by the Bank; (10) that the death of Guarantor shall not effect the termination of this Guaranty as to Guarantor providing, that in any event within Sixty (60) days after the death of the Guarantor, Borrower or any surviving guarantor shall provide to the Bank evidence that the estate of the Guarantor confirms its obligations to the Bank under this Guaranty; (11) that termination, release or limitation of any guaranty of the obligations guaranteed hereby by any other guarantor shall not affect the continuing liability hereunder of the Guarantor; (12) that nothing shall discharge or satisfy the liability of the Guarantor hereunder except the full indefeasible payment and performance of all of the Borrower's debts and obligations to the Bank with interest and costs of collection; (13) that this Guaranty shall not be affected by the illegality, invalidity or unenforceability of the obligations guaranteed, by any fraudulent, illegal or improper act by the Borrower, the legal incapacity or any other defense of the Borrower, the Guarantor or any other person obligated to the Bank consequential to transactions with the Borrower nor by the invalidation, by operation of law or otherwise, of all or any part of the obligations guaranteed hereby, including but not limited to any interest accruable on the obligations guaranteed hereby during the pendency of any bankruptcy or receivership proceeding of the Borrower; (14) that any and all present and future debts and obligations of the Borrower to Guarantor are hereby waived and postponed in favor of and subordinated to the full indefeasible payment and performance of all present and future debts and obligations of the Borrower to the Bank; (15) the Guarantor hereby grants to the Bank a continuing lien and security interest in all deposits or other sums at any time credited by or due from the Bank (or any of its banking or lending affiliates, any bank acting as a participant under any loan arrangement between the Bank and the Guarantor or the Borrower or any third party acting on the Bank's behalf (collectively, the "Bank Affiliates")) to the Guarantor and any property of the Guarantor at any time in the Bank's or any Bank Affiliate's possession 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 obligations guaranteed hereby, and such deposits and other sums may be applied or set off against such obligations 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; 2 (16) that if at any time payment of all or any part of the obligations guaranteed hereunder is rescinded or otherwise must be restored by the Bank to the Borrower or to the creditors of the Borrower or any representative of the Borrower or representative of the Borrower's creditors as a voidable preference or fraudulent transfer or conveyance upon the insolvency, bankruptcy or reorganization of the Borrower or the Guarantor, or to the creditors of the Guarantor or any representative of the Guarantor or representative of the creditors of Guarantor upon the insolvency, bankruptcy or reorganization of the Guarantor or otherwise, this Guaranty shall continue to be effective or be reinstated, as the case may be, as though such payments had not been made, and shall survive as an obligation of the Guarantor, and shall not be discharged or satisfied by said payment or payments, notwithstanding the return of the original of this Guaranty to the Guarantor or to the Borrower, or any other apparent termination of Guarantor's obligations hereunder; (17) that any rights and remedies available to the Bank under this Guaranty are cumulative, and not exclusive of any rights and remedies otherwise available to the Bank at law or in equity; (18) that the Bank's delay or omission in exercising any of the Bank's rights and remedies shall not constitute a waiver of these rights and remedies, nor shall the Bank's waiver of any right or remedy operate as a waiver of any other right or remedy available to the Bank. The Bank's waiver of any right or remedy on any one occasion shall not be considered a waiver of same on any subsequent occasion, nor shall this be considered to be a continuing waiver; (19) that this Guaranty incorporates all discussions and negotiations between the Bank and the Guarantor concerning the guaranty and indemnification provided by the undersigned hereby, and that no such discussions or negotiations shall limit, modify, or otherwise affect the provisions hereof, there are no preconditions to the effectiveness of this Guaranty and that no provision hereof may be altered, amended, waived, canceled or modified, except by a written instrument executed, sealed and acknowledged by the Bank's duly authorized officer; and (20) that this Guaranty and all documents which have been or may be hereinafter furnished by the Guarantor to the Bank may be reproduced by the Bank by any photographic, photostatic, microfilm, xerographic or similar process, and that any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made in the regular course of business). Guarantor waives: notice of acceptance hereof, presentment and protest of any instrument and notice thereof, notice of default and all other notices to which the Guarantor might otherwise be entitled; and any and all defenses, including without limitation, any and all defenses which the Borrower or any other party may have to the fullest extent permitted by law, any defense to this Guaranty based on impairment of collateral or on suretyship defenses of every type; any right to exoneration or marshaling. To the maximum extent permitted by law, Guarantor waives and terminates any homestead rights and/or exemptions respecting any premises under the provisions of any applicable homestead law, including without limitation, Title 42, Section 8123, of the Pennsylvania Co??soiidated Statutes Annotated. To the extent that it lawfully may, Guarantor hereby further agrees not to invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of the Bank's rights under this Guaranty or otherwise respecting the guaranteed obligations, and to the extent that it lawfully may do so, the Guarantor hereby irrevocably waives the benefits of all such laws. Except as otherwise provided by applicable law, the Bank shall have no duty as to the collection or protection of any collateral, if any, securing the guaranteed obligations beyond the safe custody thereof. Guarantor will from time to time execute and deliver to the Bank, and take or cause to be taken, all such other further action as the Bank may request in order to effect and confirm or vest more securely in the Bank all the rights contemplated in this Guaranty (including, without limitation, to correct clerical errors) or respecting any of the obligations guaranteed hereby or to comply with applicable statute or law. 3 This Guaranty, all acts and transactions hereunder, and the rights and obligations of the parties hereto shall be governed, construed and interpreted according to the laws of the Commonwealth of Pennsylvania without giving effect to the conflicts of laws principles thereof, shall be binding upon the heirs, executors, administrators, successors and assigns of the Guarantor and shall inure to the benefit of the Bank's successors and assigns. If any provision of this Guaranty is found to be invalid, illegal or unenforceable, the validity of the remainder of the Guaranty shall not be affected. Guarantor, if not a natural person, certifies that it is and shall remain duly organized and in good standing under the laws of the State of its organization or formation and duly authorized to do business in each State material to the conduct of its business. If as of the date any payment of proceeds of collateral received by the Bank are refunded or otherwise restored to the Borrower or any third party, the statute of limitations shall start anew with respect to any action or proceeding by the Bank against the Guarantor under this Guaranty. Likewise, any acknowledgment, reaffirmation or payment, by the Borrower or any third party, of any portion of the obligations guaranteed hereby, shall be deemed to be made as agent for the Guarantor, strictly for the purposes of tolling the running of (and/or preventing the operation of) the applicable statute of limitations with respect to any action or proceeding by the Bank against the Guarantor pursuant to this Guaranty. Guarantor will furnish to Bank from time to time, such financial data and information about Guarantor as Bank may reasonably request (collectively, the "Financial Statements"). Guarantor represents and warrants the accuracy of any information contained therein and hereby agrees not to encumber or transfer any assets listed on any Financial Statements without the Bank's prior consent. Guarantor 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 Guaranty. 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. 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. Guarantor's address shown below or as notified to the Bank and (ii) by serving the same upon the Guarantor in any other manner otherwise permitted by law, and agrees that such service shall in every respect be deemed effective service upon the Guarantor. GUARANTOR 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 RESPECTING ANY OF THE OBLIGATIONS GUARANTEED HEREBY, TO APPEAR FOR GUARANTOR 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 AGAiNS T GUARANTOR IN FAVOR OF BANK FOR ALL S;l?,",S DUE OR TO BEGONE DUE BY GUARANTOR TO BANK UNDER THIS GUARANTY, 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 GUARANTY 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. GUARANTOR ACKNOWLEDGES THAT IT HAS BEEN OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY COUNSEL IN CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS GUARANTY AND THAT IT KNOWINGLY WAIVES ITS RIGHT TO BE HEARD PRIOR TO THE ENTRY OF SUCH JUDGMENT AND UNDERSTANDS THAT, UPON SUCH ENTRY, SUCH 4 JUDGMENT SHALL BECOME A LIEN ON ALL REAL PROPERTY OF GUARANTOR IN THE COUNTY WHERE SUCH JUDGMENT IS ENTERED. GUARANTOR AND BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, (A) WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN CONNECTION WITH THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, ALL MATTERS CONTEMPLATED HEREBY AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND (B) AGREE 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. GUARANTOR 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. Executed as an instrument under seal and dated Novemberli,,I- , 2006. Witness: Guarantor: r., CY HIA L. DARE, individually Address: 9 Hamilton Drive Boiling Springs, Pennsylvania 17007 COMMONWEALTH OF PENNSYLVANIA SS. COUNTY O Q = Lliai0' On this, the' day of 20Q?, before me, a Notary Public, personally appeared CYNTHIA L. DARR, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and he/she acknowledged that he/she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand acid official seal. COMMONWEALTH OF PENNSYLVANIA Notary Pub' otarial Seal My commission expires: Kathy ughman, Notary Public o, Cumberia d County EFCar?fisyle on Expires of Notaries , Pennsylvania Association Member RULES OF CIVIL PROCEDURE - CONFESSION OF JUDGMENT Rule 2959. Striking Off or Opening Judgment; Pleadings; Procedure (a)(1) Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment. (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the Petition states prima facie grounds for relief and the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to sow cause and the answer shall be served as provided in Rule 440. (e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment. (f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. (g) (1) A judgment shall not be stricken or opened because of a creditors' failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor. (2) Subdivision (g)(1) shall apply to (1) judgments entered prior to the effective date of subdivision (g)' which have not been stricken or opened as of the effective date and (2) judgments entered on or after the effective date. Adopted June 27, 1969, effective Jan. 1, 1970. Amended Oct. 4, 1973, effective Dec. 1, 1973; Nov. 14, 1978, effective Dec. 2, 1978; Dec. 14, 1979, effective Feb. 1, 1980; June 20, 1985, effective Jan. 1, 1986; April 1, 1996, effective July 1, 1996; Sept. 28, 2004, imd. effective. Explanatory Comment -1979 Amendment to Rule 2959(a). The Act of March 27, 1945, P.L. 83, as amended, 12 P.S. §§913, 914 provided that if a confessed judgment is transferred to another county or if a writ of execution upon it is direct4ed to another county, the defendant has the option to petition to open either in the county where the judgment was originally entered or in the county to which it was transferred or to which the execution was directed. This Act is repealed by JARA. Subdivision (a) of Rule 2950 has been amended to continue the procedure. The scope of the repealed Act is enlarged by granting optional venue in the case of a petition to strike the judgment as well as petitions to open. This consisted with subdivision (a) of Rule 2959 which requires all grounds for relief, whether to open or to strike, to be raised at one time. To prevent bifurcation of the proceedings, the optional venue must be extended to both forms of relief. A petition to strike must assert defects appearing on the record. If the judgment debtor should seek to strike the judgment in an outside county, examination of the record of the original confession may be essential. For this purpose, the judgment debtor can, under the authority of Rule 3002(c), file in the outside county a certified copy of all or any part of the record, testimony or exhibits in the original action. New Rule 2959(Q. An order of court opening a judgment does not impair the lien of the judgment or of any execution issued on it, although the court may stay the execution pending final disposition of the proceeding. 7 Stand.Pa.Prac. 172, 174 §§ 138, 142. To the contrary an order of court striking a judgment annuls the lien of the judgment or of any execution issued on it. 7 Stand.Pa.Prac. 244 §§ 223, 224. However, the mere filing of a petition to open or strike a judgment does not affect the lien of the judgment or of any execution, subject, of course, to the power of the court to stay execution pending decision on the petition. Subdivision (f) has been added to Rule 2959 to restate this principal. EXHIBIT "B" Subd. (g)added by Order of Sept. 28, 2004, imd. effective. Section 1722(b) of the Judicial Code authorizes the Supreme Court to promulgate general rules on the subject of liens and their extent where not already governed by Act of Assembly. In the absence of such general rules, present practice shall continue. The rarely used Act of July 9, 1897, P.L. 237, 12 P.S. § 911, created a special remedy under which a creditor of a judgment debtor might attack a judgment confessed by that debtor in favor of another creditor on a sowing of invalidity or fraud, and the filing of a bond to protect the judgment plaintiff. The Act preserved the lien of any levy which had been made pending termination of the proceedings. The Act was suspended in 1969 by Rule 2975(3) [rescinded] with respect to confessed judgments, except insofar as it preserved the lien, and it has been repealed by JARA. Explanatory Comment -1996 The rules of civil procedure governing confession of judgment for money have been revised in two major respects: the abolition of confession of judgment in a consumer credit transaction and the imposition of a requirement of notice prior to or with execution upon a confessed judgment. ll. Notice The provisions for notice are intended to aid the bench and bar in complying with Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250 (C.A.3 1994). The significance of the opinion was stated by Judge R. Stanton Wettick, Jr. in S & T Bank v. Coyne, No. GD 94-12141 (Allegheny County, August 11, 1994): The Jordan opinion is significant only because the judgment creditor and its attorneys are now also subject to a § 1983 claim by a judgment debtor who did not waive its constitutional rights to notice and a hearing. New rules have been promulgated to provide for notice to be served upon the defendant in most cases prior to or during execution on a judgment entered by confession. There are three notices but only one need be given in a particular case. Under new rule 2959(a)(3), a defendant must file a petition within thirty days of service of the notice to obtain relief from the judgment or to prevent execution. After thirty days, the defendant is barred from relief unless there are "compelling reasons for the delay". The intent of these rules is to limit the necessity for hearings on issues of due process and waiver by providing the defendant with 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 - ... t rte) (.. ) 9-5 ..p O --a cam, :< O 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. CYNTHIA L. DARR, Defendant No. 5886 Civi I I erm 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: 0c"ti 7` '2007 I.D. #55774 Attorney for Plaintiff C-') r+.? - - c? tJ t _? `-;-r _? 7 ?",? ?-?J ?? ? -rr ?: - {.'I ` ?? .., _,. C::?? --.?-, OFFICE OF THE PROTHONOTARY COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA TO: Ms. Cynthia L. Darr 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. 01-599(v Civi ( (er m CYNTHIA L. DARR, 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 IdD , 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. J4( L?U- .C . r thonotary 4*6 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. CYNTHIA L. DARR, Defendant TO THE PROTHONOTARY: No. 2007-5886 PRAECIPE - SETTLE & DISCONTINUE X - SATISFY DATE: 2007 HE By: I.D. #55774 Attorney for Plaintiff