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HomeMy WebLinkAbout03-6378COMMERCE BANK/HARRISBURG, N.A., Plaintiff SALLY A. TIMMONS, Defendant : CUMBERLAND COUNTY, : PENNSYLVANIA : Docket No. O,_~ -~ ~, ~ ? IN THE COURT OF COMMON PLEAS, CONFESSION OF JUDGMENT BY COMMERCE BANK/HARRISBURG. N.A. AGAINST SALLY A. TIMMONS Pursuant to the authority contained in the Warrant of Attorney, a copy of which is attached to the Complaint filed in this action, the undersigned appears for the Defendant and confesses Judgment in favor of the Plaintiff and against the Defendant in the amount of $5,113.56 plus interest accruing at the Prime Rate plus 1.5% ~er annum determined by Plaintiff from July 29, 2003, additional attorneys' fees and costs incurred after July 29, 2003 and all costs of this action. Respectfully submitted, Lloydfi~. Persun, Esquire Sup/Ct. I.D. No. 10139 Mefte, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Commerce Bank/Harrisburg, N.A. appearing herein as Attorneys for Defendant J86396vl COMMERCE BANK/HARRISBURG, N.A., Plaintiff SALLY A. TIMMONS, Defendant : 1N THE COURT OF COMMON PLEAS, : CUMBERLAND COUNTY, : PENNSYLVANIA : DocketNo. ~)~-~"7~~ ~ COMPLAINT IN CONFESSION OF JUDGMENT AND NOW, this'~'~r J"~day of December, 2003, COMMERCE BANK/ HARRISBURG, N.A. files the following Complaint in Confession of Judgment against SALLY A. TIMMONS: 1. Plaintiff is Commerce Bank/Harrisburg, N.A., a national banking institution with offices at 100 Senate Avenue, Camp Hill, Pennsylvania 17001 (the "Bank"). 2. Defendant is Sally A. Timmons, an adult individual residing at 808 Wellington Drive, Carlisle, Petmsylvania 17013 (the "Guarantor"). 3. On or about March 29, 2001, Guarantor executed and delivered to Bank a Commercial Guaranty, guaranteeing and agreeing to act as surety for the payment and performance of certain Indebtedness and obligations of Performance Freight Systems, Inc. (PFS) to Bank. A true and correct copy of the Commercial Guaranty is attached hereto as Exhibit "A" and made a part hereof (the "Guaranty"). 4. Entry of Judgment by Confession is not sought in connection with a consumer credit transaction. 5. The Bank has not assigned the Guaranty. Complaint. The Bank has not entered judgment on the Guaranty prior to filing this 7. The Indebtedness owed by PFS to the Bank was not paid when due and was in default. PFS failed to pay the Indebtedness. 8. The Bank demanded that Guarantor pay the Indebtedness owed by PFS to the Bank. Guarantor failed to make payment as demanded by the Bank. 9. The total amount due under the Guaranty as of December 1, 2003 is $5,113.56 plus interest at the Prime Rate plus 1.5% per annum determined by the Bank (the "Applicable Interest Rate") from July 29, 2003, additional attorneys' fees and costs incurred after July 29, 2003 and all costs of this action. Interest continues to accrue at the Applicable Interest Rate from July 29, 2003. -2- WHEREFORE, on the basis of the confession of judgment clause contained in the Guaranty, Bank hereby demands Judgment in favor of Bank and against Guarantor in the amount of $5,113.56 plus interest accruing at the Applicable Interest Rate from July 29, 2003, additional attorneys' fees and costs incurred by Bank after July 29, 2003 and all costs of this action. Respectfully submitted, Ll'6yd/R. Persun, Esquire Sup. Ct. I.D. No. 10139 Metre, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Commeme Banldltarrisburg, N.A. COMMERCIAL GUARANTY I · . I 2~.1 ~ .......[:lefarances in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing ....... has been omitted due to text length limitations. Borrower: Performance Freight Systems, Inc. (TIN: Lender: 23-2889478) P.O. BOX 5006 York, PA 17405-5006 COMMERCE BANK/HARRISBURG N.A. COMMERCIAL BUSINESS DEPARTMENT 100 SENATE AVENUE CAMP HILL, PA 17011 (717) 975-5630 Initials Guarantor: Sally A. Timmons (SSN: 209-464)069) 808 Wellington Drive Carlisle, PA 17013 AMOUNT OF GUARANTY, This is a guaranty of payment of 100.000% of the Note, including without limitation Ihe principal Note amount of One Hundred Thousand & 00/100 Dollars ($100,000.00). GUARANTY. For good and valuable consideration, Sally A. Timmons ("Guarantor") absolutely and unconditionally guarantees and promises to pay to COMMERCE BANKJHARRISBURG N.A. ("Lender") or its order, on demand, in legal tender of the United States of America, 100.000% of the Indebtedness (as that term is defined below) of Performance Freight Systpms, Inc. ("Borrower") to Lender on the terms and conditions set forth in this Guaranty. Guarantor agrees that Lender, in its sole dlscreti~/n, may determine which portion of Borrower's indebtedness to Lender Is covered by Guarantor's percentage guaranty. MAXIMUM LIABILITY. The maximum liability of Guarantor under this Guaranty-~hall not exceed at any one time 100.000% of the amount of the Indebtedness described herein, plus all costs and expenses of (A) enforcement of this Guaranty and (B) collection and sale of any collataral securing this Guaranty. · The above limitation on liability is not a restriction on the amount cf the Indebtedness of Borrower to Lender either in the aggregate or at any one time. If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's fights under all guaranUes shall be cumulative. This Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties. Guarantor's liability will be Gdarantor's aggregate liability under the terms of this Guaranty and any such other untermthated guaranties. INDEBTEDNESS GUARANTEED. The indebtedness guaranteed by this Guaranty includes the Note, including {a) all principal, (b) all interest, {c) late charges, rd) ail loan fees and loan charges, end {e) aJJ collecedn costs and expenses relating to the Note or to any collatsral for the Collection costs and expenses include without limitation all of Lender's attomeys~ fees. DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity of any acceptance by Lender, or any notice to Guarantor or to Borrower, and will continue in full force until all indebtedness shall have been fully and finally paid and satisfied and a~l of Guarantor's other obligations under this Guaranty shaft have been performed in full. Release of any other guarantor or termination of any other guaranty of the Indebtedness shall net affect the liability of Guarantor under this Guaranty. A revocation Lender receives from any one or more Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. This Guaranty covers a revolving line of credit and it is specifically anticipated that fluctuations will occur in the aggregate amount of indebtedness owing from Borrower to Lender. Guarardor specifically acknowledges and agrees that fluctuations in the amount of Indebtedness, even to zero dollars ($ 0.00), shall not constitute a termination of this Guaranty. Guarantor's liability under this Guaranty shall terminate only upon (A) termination in writing by Borrower and Lender of the line of credit, (B) payment of the Indebtedness in full in legal tender, and (C) payment in tull in legal tender of.att of Guarantor's other obligations under this Guaranty. GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without notice or demand and without lessening Guarantor's liability under this Guaranty, from time to time: (A) to make one or more additional secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower, or otherwise to extend additional credit to Borrower; (B) to aitsr, compromise, renew, extend, accelerate, or otherwis~ change one or more times the time lot payment or other terms of the indebtedness or any pad of the Indebtedness, including inaceases and decreases of the rate of interest on the Indebtedness; extensions may be repeated and may be for longer than the ofiginal loan term; (C) to take and hold secudty for the payment of this Guaranty or the indebtedness, and exchange, enforce, waive, subordinate, fail or decide not to perfect, and release any such security, with or without the substitution of new collateral; rD) to release, substitute, agree not to sue, or deal with any one or more of Borrower's surelies, endorsers, or other guarantors on any terms or in any manner Lender may choose; rE) to determine how, when and what application of payments and credits shall be made on the indebtedness (F) to apply such security and direct the order or manner of sale thereof, including without limitation, any nonjudicial sate permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion may determine; (G) to sell, transfer, assign or grant participations in all or any part of the Indebtedness; and (H) to assign or transfer this Guaranty in whole or in part. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A) no representations or agreements of any kind have been made to Guarantor which would limit or quslify in any way the terms of this Guaranty; (B) this Guaranty is executed at Borrower's request and not at the request of Lender; (C) Gusrantor has full power, right and authority to enter into this Guaranty; rD) the provisions of this Guaranty do not conflict with or result in a detsult under any agreement or other instrument binding upon Guarantor and do not result in a violation of any law, regulation, court decree or order applicable to Guarantor; rE) Guarantor has not and will not, without the prior writIen consent of Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets, or any interest Uqerein; (F) upon Lender's request, Guarantor will provide to Lender financial and credit information in form acceptable to Lender, and all such financial information which currendy has been, aod all future financial information which will be provided to Lender is and will be true and correct in all material respects and iairly present Guarantor's financial condition as ct the dates the financial information is provided; (G} no material adverse change has occurred in Guarantor's financial condition since the date el the most recent financial statements provided to Lender and no event has occurred which may materially adversely affect Guarantor's tioancia~ condition; (H) ec litigation, claim, investigation, administrative proceeding or simi(ar action (including those for unpaid taxes) against Guarantor is pending or threatened; (I) Lender has made no representation to Guarantor as to the creditworthiness of Borrower; and (J) Guarantor has established adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's financial condition. Guarantor agrees to keep adequately informed from such means of any facts, events, or circumstances which might in any way affect Guarantor's risks under this Guaranty, and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information or documents acquired by Lender in the course of its relationship with Borrower. GUARANTOR'S FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following: Annual Statements. AS soon as availabte aYter the end of each fiscal year, Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor. Tax Returns, As soon as available afier the applicable filing date for lite tax r(~oortin~ period ended, Federal and o~her governmental tax returns, F_~IBIT "~" ~ aSed (penuil~uoo) COMMERCIAL GUARANTY (Continued) · Page 3 Integration. Guarantor fu~her egress that Guarantor has read And fully undemtands the terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantor's attomey with respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and parDI evidence Is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless from all losses, claims, damages, and costs (including Lender's attorneys' fees) suffered or incurred by Lender as s result of any breach by Guarantor of tho warranties, representations and agreements of this paragraph. Interpretation. In all cases whore there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall be deemed to have been used in the plural where the context and construction so require; and where there is more then one Bor~'ower named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words 'Borrower" and "Guarantor' respectively shall mean all and any one or more of them. The words "Guarantor," "Borrower," and "Lander" include the heirs, successors, assigns, and transferees of each of them. if a court finds that any provision of this Guaranty is not valid or should not be enforced, that fact by itself will not mean that the rest of this Guaranty will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Guaranty even if a provision of this Guaranty may be found to be invalid or unenfomeable. If any one or more of Borrower or Guarantor are corporations, partnerships, limited liability companies, or similar entities, it is not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors, partners, managers, or other agents acting or purporting to act on their behalf, and any Loan indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty. Notices. Unless otherwise provided by applicable law, any notice required to be given under this Guaranty shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimita (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, il mailed, when deposited in the United States mai[, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Guarecty. Any party may change its address for notices under this Guaranty by giving Iormal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantor's current address. Unless otherwise provided by applicabta law, if there is more than one Guarantor, any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors. No Waiver by Lender. Lender shall not be deemed to have waived any tights under this Guaranty unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender ~)f a provision of this Guaranty shall not prejudice or constitute a waiver of Lender's right otherwise to.demand strict compliance with that provision or any other provision of this Guaranty. No prior waiver by Lender, nor any course of dealing between Lender and Guarantor, shall cor~stitute a waiver of any of Lender's rights or of any of Guarantor`s obligations As to any future transactions. Whenever the consent of Lender is required under this Guaranty, tile granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. Successors and Assigns. The terms of this Guaranty shall be binding upon Guarantor, and upon Guarantor`s heirs, personal representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns. DEFINITIONS. The following capitalized words and terms shall have the Iollowing meanings when used in this Guaranty. Unless specifically stated to the contrary, all references to doitar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural sha~l include the singular, ss the context may require. Words and terms not otherwise defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Coda; Borrower. The word "Borrower" means Pertormance Freight Systems, thc., and all other persons and entities signing the Note in whatever capacity. GAAP. The word "GAAP" means generally accepted accounting principtas. Guarantor. The word "Guarantor'' means each and every person or entity signing this Guaranty, including without limitation Sally A. Timmons. Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender, including without limitation a guaranty of all or part of the Nots. Indebtedness. The word "Indebtedness" means Borrower's indebtedness to Lender as more particularly described in this Guaranty. Lender. The word "Lender'' means COMMERCE BANK/HARRiSBURG N.A., ils successors and assigns. Note. The word "Note" means the promissory note dated March 29, 2001, in the original principal amount of $100,00g.00 from Borrower to Lender, together with alt renewals of, extensions of, modifications of, regnancings of, consolidations of, and substitutions for tile promissory note or agreement. Related D~)cuments, The words "Related Documents" mean ali promissory notes, credit agreements, loan agreements, anvironmectaJ agreements, guaranties, security agreements, rr~rtgages, deeds of trust, Security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the indebtedness. CONFESSION OF JUDGMENT. GUARANTOR HEREBY iRREVOCABLY AUTHORIZES AND EMPOWERS ANY A'~'ORNEY DR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHEI'tE, TO APPEAR AT ANY TIME FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED IN?'EREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING .THE INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN A'~FORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BAL~\NCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE'OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR 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 GUARANTY. GUARANTOR HEREBY'WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECiFiCALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO GUARANTOR'S A'I-I-ENTION OR GUARANTOR HAS BEEN REPRESENTED BY iNDEPENDENT LEGAL COUNSEL. .LNqlNDO~-I~ON~IOV 'IVI'IQIAIQNI t~ a~ed (penuiluoo) AJ. NVUVn9 -IVI:DblBININOO VERIFICATION I, ANGELA A. MASSER, have read the foregoing document and verify that I have the authority as a Vice Presidem of Commerce Bank/Harrisburg, N.A. to make this Verification on its behalf and that the facts set forth therein are true and correct according to the best of my knowledge, information and belief. I understand that any false statement made herein is subject to the penalties of 18 Pa. C.S.A. §4904, relating to unswom falsification to authorities. /_/ Angela A. Masg-er DATED: December 4 , 2003 386406vl COMMERCE BANK/HARRISBURG, N.A., Plaintiff SALLY A. TIMMONS, Defendant : 1N THE COURT OF COMMON PLEAS, : CUMBERLAND COUNTY, : PENNSYLVANIA : Docket No. ~9~ _ I.~ '~I~~ CERTIFICATE OF RESIDENCE I hereby certify that the address of the Plaintiff and the residence of the Defendant are as follows: Commerce Bank/Harrisburg, N.A. 100 Senate Avenue Camp Hill, PA 17001 Sally A. Timmons 808 Wellington Drive Carlisle, PA 17013 Respectfully submitted, Lloyd ~. Persun, Esquire Sup. ~t. I.D. No. 10139 Metre, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Commerce Bank/Harrisburg, N.A. 386390vl COMMERCE BANK/HARRISBURG, N.A., Plaintiff SALLY A. TIMIVIONS, Defendant : IN THE COURT OF COMMON PLEAS, : CUMBERLAND COUNTY, : PENNSYLVANIA : Docket No. O~5_ (o 75'7 <~ CERTIFICATE OF NON-MILITARY SERVICE I, Angela A. Masser, as a Vice President of Commerce Bank/Harrisburg, N.A., do hereby certify that to the best of my knowledge or information and belief Sally A. Timmcns, the Defendant, is not a member of the Armed Forces of the United States of America. 386392vl COMMERCE BANK/HARRISBURG, N.A., Plaintiff SALLY A. TIMMONS, Defendant : 1N THE COURT OF COMMON PLEAS, : CUMBERLAND COUNTY, : PENNSYLVANIA : DocketNo. (~ 2)_ ~9) ~(~ NOTICE OF ENTRY OF JUDGMENT TO: Sally A. Timmons 808 Wellington Drive Carlisle, PA 17013 You am hereby notified pursuant to Rule 236 of the Pennsylvania Rules of Civil Procedure that Judgment has been entered against you in the amount of $5,113.56 plus interest accruing at the Prime Rate plus 1.5% l~er annum determined by Plaintiff from July 29, 2003, additional attorneys' fees and costs incurred after July 29, 2003 and all costs of this action. Date Prothonotary 6f Cm6berland County 386398vl