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HomeMy WebLinkAbout07-7373 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MID PENN BANK, CIVIL DIVISION n Plaintiff, NO.: 67- 11373 0--NA-Farm vs. CARMELO J. CLAUDIO, Defendant. CONFESSION OF JUDGMENT Pursuant to the authority in the Warrant of Attorney contained in the aforesaid $160,000.00 Note and $160,000.00 Mortgage, copies of which are attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of Plaintiff and against Defendant as follows: Principal $147,735.61 Interest through 10/31/07 $ 3,456.87 Late Charges $ 612.95 Attorneys' Fees and Costs (10% of total $ 15,180.54 amount due) TOTAL JAM BY: Kimberly A. Bonner, Esquire PA I.D #89705 Attorneys for Defendants Pro Hac Vice P.O. Box 650 Hershey, PA 17033 (717) 533-3280 $166,985.97 Y LLP 0 -TI - r r"I `) t1+? 70 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MID PENN BANK, Plaintiff vs. CARMELO J. CLAUDIO, Defendant. TO: DEFENDANT(S) YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED COMPLAINT WITHIN TWENTY (20) DAYS FROM SERV CP- EREOF A AULT JUDGMENT MAY BE EN J ? A AINST YQLJ,? CIVIL DIVISION NO.: TYPE OF PLEADING CIVIL ACTION - COMPLAINT IN CONFESSION OF JUDGMENT FILED ON BEHALF OF: Mid Penn Bank, Plaintiff COUNSEL OF RECORD FOR THIS PARTY: Scott A. Dietterick, Esquire Pa. I.D. #55650 Kimberly A. Bonner, Esquire Pa. I.D. #89705 A I HEREBY CERTIFY THAT THE ADDRESS OF THE PLAINTIFF IS: 51 S. Front Street, Steelton, PA 17113 JAMES, SMITH, DIETTERICK & CONNELLY LLP P.O. Box 650 PA 17070 Hershey, PA 17033 (717) 533-3280 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MID PENN BANK, Plaintiff, vs. CARMELO J. CLAUDIO, Defendant. CIVIL DIVISION NO.: o°I - 17373 c CIVIL ACTION - COMPLAINT IN CONFESSION OF JUDGMENT And now comes Mid Penn Bank, by its attorneys, James, Smith, Dietterick & Connelly LLP, files this Complaint in Confession of Judgment as follows: 1. The Plaintiff is Mid Penn Bank, which has its principal place of business at 51 S. Front Street, Steelton, Pennsylvania 17113. 2. Defendant, Carmelo J. Claudio, is an adult individual residing at 68-A Springers Lane, New Cumberland, Pennsylvania 17070. 3. On or about August 23, 2004, Defendant executed and delivered a certain Note in favor of Plaintiff in the original principal amount of $160,000.00, which Note authorized the confession of judgment against Defendant. A true and correct copy of said Note is marked Exhibit "A" attached hereto and made a part hereof. 4. The Note has not been released, transferred or assigned. 5. Judgment has not been entered against Defendant on the Note in any jurisdiction. 6. The aforesaid Note authorizes the entry of judgment upon default by Defendant. 7. Defendant is in default under the Note for failure to pay installments of principal and interest when due. 8. The Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 9. The itemization of the amount due, including interest, late charges and attorneys' fees as authorized by the Note is as follows: Principal $147,735.61 Interest through 10/31/07 $ 3,456.87 Late Charges $ 612.95 Attorneys' Fees and Costs (10% of total $ 15,180.54 amount due) TOTAL $166,985.97 plus interest on the principal sum ($147,735.61) from October 31, 2007, at the rate of $27.70 per diem, plus additional late charges and additional attorneys' fees and costs. WHEREFORE, Plaintiff, as authorized by the Warrant of Attorney contained in the Note, demands judgment against the Defendants in the total sum of $166,985.97, with interest on the principal sum ($147,735.61) from October 31, 2007, at the rate of $27.70 per diem, plus additional late charges and additional attorneys' fees and costs, and brings said instrument to Court to recover said sum. JAMES, BY: Scott A. Dietterick, Esquire Y LLP PA I.D. # 55650 Kimberly A. Bonner, Esquire PA I.D #89705 Attorneys for Plaintiff P.O. Box 650 Hershey, PA 17033 (717) 533-3280 THIS IS AN ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. EXHIBIT "A" PROMISSORY NOTE References In the shaded area ere for Landers use only and do not limit the applicability of this document to any particular loan or tem. en„ 'tarn ahrwo contelnlna ` *N has been omitted due to text length limitations. Borrower: Carmelo J. Claudia (SSN: 209-4e-2439) Lender: Mid Penn Bank 63-A Spongers Lane Derry Street Office New Cumberland, PA 17070 4093 Derry Street Harrisburg, PA 17111 (717) 5511141144 Principal Amount: $160,000.00 Interest Rate: 6.750°x6 Date of Note: August 23, 2004 PROMISE TO PAY. Carmelo J. Claudio ("Borrower') promises 10 pry to Mid Penn Bank ("Lender"), or order, in lawful money of the United States of America, the principal amount of One Hundred Sbdy Thousand & 001100 Dollars (S160,000.00), together with Interest at the rote of 6.760% per annum on the unpaid principal balance from August 23, 2004, until paid In full. payment estimated at $133,909.91. PAYMENT. Borrower will pay this ban In 59 regular payments of $IA26.f12 each and one Irregular last pay of each month after that. Borrower's first payment Is due September 23, Zoos, and all subsequent payments are due on the same day Borrower's final payment will be due on August 23, 2009, and will be for all principal and all accrued Interest not yet paid. Payments include principal and Interest. Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid Interest; then to principal; then to any unpaid collection coats; and then to any late charges. The annual interest rate for this Note Islcop lit balance a principal 3651360 basis; that Is, by applying the ratio of the annual Interest rate over a year of 360 days, multiplied by the outstanding multiplied by the actual number of days the principal balance Is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. PREPAYMENT PENALTY. Upon prepayment of this Note, Lender Is entitled to the following prepayment penalty: A penalty of five percent (5.0076) of the ould ending loan principal balance at the time of prepayment If the prepayment occurs during the first loan year; a penally of four percent (4.00%) of the outstanding loan principal balance at the time of prepayment If the prepayment occurs during the second loan year; a penalty of three percent (3.00%) of the outstanding loan principal balance at the lime of prepayment If the prepayment occurs during the third loan year, a penalty of two percent (2.00%) of the outstanding loan principal balance at the time oi' prepayment If the prepayment occurs during the fourth loon year, a penalty of two percent (240%) of the outstanding loan principal balance at the time of prepayment If the prepayment occurs during the fifth loan year. The prepayment penalty shall be In effect for the original five (5) year Interest rate period, and shall renew upon adjustment of the Interest rate for any ensuing live (5) year Interval, unless modified in writing. Notwithstanding anything to the contrary, Borrower may prepay this loan, without penally, from Internally generated funds. Except for the foregoing, Borrower may pay all or a portion of the amount owed earlier than It Is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments under the payment schedule. Rather, early payments will reduce the principal balance due and may result in Borrower's making fewer payments. Borrower agrees not to send Lender payments marked "paid In full". "without recourse", or similar language. If Sonower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lander. All written communications concerning disputed amounts, including any check or other payment Instrument that indicates that the payment constitutes "payment in fuil" of the amount owed or that Is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: Mid Penn Bank, Derry Street Office, 4098 Derry Street, Harrisburg, PA 17111. LATE CHARGE. If a payment is 15 days or more Into, Borrower will be charged 10.000% of the regularly scheduled payment or $25.00, whichever Is greater. INTEREST AFTER DEFAULT. Upon default, including tallure to pay upon final maturity, Lender, at its option, may, 11 permitted under applicable law, increase the Interest rate on this Note 6.000 percentage points. The interest rate will not exceed the maximum rate permitted by applicable law. If judgment Is entered In connection with this Note. Interest will continue to accrue on this Note after judgment at the existing interest rate provided for in this Note. DEFAULT. Each of the following shall constitute an event of default ("Event of Default") under this Note: Payment Default. Borrower fails to make any payment when due under lhis Note, he erelated docu ants or to (comply wiitthy oril to por to erform erform any termolobligation obligation, or condition contained in any other agreement between Lender and Borrower. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Note or the related documents is false or misleading in any material respect, either now or at the lime made or furnished or becomes false or misleading of any flme thereafter. Death or Insolvency. The death of Borrower or the dissolution or termination of Borrower's existence as a going business, thref creditor Borrower, the appointment of a receiver for any part of Borrower's property, any assignment for the bonefit of creditors, any type of workout. or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the loan. This Includes a garnishment of any of Borrower's accounts, including deposit accounts, with Lender. However, this Event of Default shag not apply If there is a good faith dispute by Borrower as to the validly or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and It Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, In an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor, endorser, surely, or accommodation party of any of the Indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes Incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of this Note is Impairad. Insecurity. Lender In good faith believes Itself insecure. LENDER'S RIGHTS. Upon default, Lander may, after giving such notices as required by applicable law, declare the entire unpaid principal balance on this Note and all accrued unpaid Interest Immediately due, and then Borrower will pay that amount. IIl2°/20?7 14:55 717-939-2529 MID PENN BANK PROMISSORY NOTE Loan No: 500025457 (Continued) Page 2 ATTORNEYS' FEESI EXPENSES. Lender may hire or pay someone else to help collect Ihis Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fags and Lender's legal expenses, whether or not there Is a lawsuit, Including attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law, JURY WAIVER. Lender and Borrower hereby waive the right to any fury trial In any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. GOVERNING LAW. This Note will be governed by, construed and enforced in accordance with federal law and the laws of the Commonrwealth of Pennsylvania. This Note has been accepted by Lender In the Commonwealth of Pennsylvania. CHOICE OF VENUE. 11 there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Dauphin County, Commonwealth of Pennsytvania. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether checking, savinos, or some other account). This includes all accounts Borrower holds jointly with someone also and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower authorzes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the Indebtedness against any and all such accounts, and, at Lender's option, to administratively freeze all such accounts to allow Lender to protect Lender's charge and setoff rights provided in this paragraph. COLLATERAL. Borrower acknowledges this Note is secured by the following collateral described In the security Instruments fisted herein, all the terms and conditions of which are hereby incorporated and made a part of this Nola: (A) a Mortgage dated August 23, 2004, to Lender on real property located In Dauphin County, Commonwealth of Pennsylvania. (B) an Assignment of All Rents to Lender on real property located In Dauphin County. Commonwealth of Pennsylvania. PRIMARY DEPOSIT ACCOUNTS. Borrower agrees to open and maintain Its primary business deposit account ("Account's with Lender so long as this Note has an outstanding balance or loan availability. If Borrower does not open or maintain the Account with Lender, Borrower authorizes Lender to Increase the interest rate on this loan by one-quarter of one percent (0.26096). INCORPORATION. OF COMMITMENT LETTER. The terms and conditions of a Commitment Letter dated Jury 21, 2004, between Lender, Borrower, and Guarantors, together with any modifications and amendments, are hereby Incorporated into this Agreement as if the Commitment Letter were restated herein In Its entirety. SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns. and shall Inure to the benefit of Lender and Its successors and assigns. NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us If we report any inaccurate Information about your account(s) to a consumer reporting agency. Your written notice describing the specific inaccuracypes) should be sent to us at the following address: Mid Penn Bank, Derry Street Ofte, x098 Derry Street, Harrisburg, PA 17111 GENERAL PROVISIONS. Lander may delay or forgo enforcing any of Its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change In the farms of this Note, and unless otherwise expressly stated In writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or Impair, fall to realize upon or perfect Lender's security interest in the collateral: and take any other action deemed necessary by Lander without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note Is for any reason determined to be unenforceable, It will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE. TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS (5500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY: AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A OF LENDER CALLED JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWEREHAS BEEN REPRESENTIEDE YI INDEPENDENT LLEGALSCOUNSEL.ION OF PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER' >:a:: • K>'^<.. ? `gas:::::: ;:i,:::?:24 eel CIO "Oef $?'Cla G LASER PRO LORIN", V4V 8.21.10,6111 ra,,. w h.nn r,-.-i FN„pM.y 4,c. ,w7. 3004. Mr MINOR. ae?rwtl. _ rn U%CFtuPU02oFC Tq.7NA ?q-9ECMe m VERIFICATION I, Gregory C. Scheer, Collection Manager for Mid Penn Bank, depose and say subject to the penalties of 18 Pa.C.S.A., sec. 4904 relating to unsworn falsification to authorities that the facts set forth in the foregoing pleading are true and correct to the best of my information, knowledge and belief. C. 9 CLu'? Gregory L. Scheer, Collection Manager Mid Penn Bank .A, M1? a 7'? _ - Cam) •--? o ono ? °? { x.'=-' -71 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MID PENN BANK, CIVIL DIVISION Plaintiff, NO.: Oq. X1373 Ci-J41'7i?t1l" vs. CARMELO J. CLAUDIO, Defendant. NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON Notice of Defendant's Rights To: Carmelo J. Claudio 68-A Springers Lane New Cumberland, PA 17070 A judgment in the amount of $166,985.97 has been entered against you and in favor of the plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. NOTICE TO DEFEND & LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Phone (717) 249-3166 (800) 990-9108 BY: Respectfully Submitted: JAMES, $M I-,VjETTjER16,K & CONNELLY LLP Sco'ft 4. Diett?ri-c-Z,--Esquire PA I.D. # 55650 Kimberly A. Bonner, Esquire PA I.D #89705 Attorneys for Plaintiff P.O. Box 650 Hershey, PA 17033 (717) 533-3280 ° ti c a -Ti -""+ f 1 4 SHERIFF'S RETURN - REGULAR CASE NO: 2007-07373 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MID PENN BANK VS CLAUDIO CARMELO J SHARON LANTZ , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within CONFESSION OF JUDGMENT was served upon CLAUDIO CARMELO J the DEFENDANT , at 1837:00 HOURS, on the 12th day of December-, 2007 at 717 MARKET STREET SUITE 111 LEMOYNE, PA 17043 by handing to CARMELO CLAUDIO a true and attested copy of CONFESSION OF JUDGMENT together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 15.36 00 10.00 R. Thomas Kline .00 43.36 12/13/2007 2 JAMES SMITH DIET..2'ERICK,2004 Sworn and Subscibed to before me this of By: day i/Deputy Sheriff A. I?