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HomeMy WebLinkAbout08-0970• r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, ) No. b$ ' Qr1D /_ av ? l Germ vs. ) LUFF LAWN & GARDEN, INC., ) Defendant. ) CONFESSION OF JUDGMENT Pursuant to the authority granted in the Warrant of Attorney contained in the Note, a copy of which is attached as Exhibit "A" to the complaint filed in this action, the undersigned attorney hereby appears for Defendant and confesses judgment in favor of Plaintiff, PNC BANK, NATIONAL ASSOCIATION, and against Defendant as follows: Principal Debt $ 39,887.57 Interest through 1/10/08 1,521.98 Late charge 150.02 Attorney's Commission 4,140.95 Total $ 45,70059 Y Donna M. Donaher, Esquire Attorney for PNC Bank, National Association THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, CIVIL DIVISION Plaintiff, NO. vs. COMPLAINT IN CONFESSION OF JUDGMENT LUFF LAWN & GARDEN, INC., Defendant. Code: Counsel of Record for This Party: Donna M. Donaher, Esquire Pa. I.D. #53165 TUCKER ARENSBERG, P.C. Firm #287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, ) Plaintiff, ) vs. ) LUFF LAWN & GARDEN, INC., ) Defendant. ) No. v F - 9 '70 C°.tx< J TZ- COMPLAINT IN CONFESSION OF JUDGMENT AND NOW, comes the Plaintiff, PNC BANK, NATIONAL ASSOCIATION, by and through its counsel, Tucker Arensberg, P.C., and files this Complaint confessing judgment in its favor, stating as follows: 1. Plaintiff, PNC BANK, NATIONAL ASSOCIATION ("PNCB"), is a national banking association organized under the laws of the United States and a citizen of Pennsylvania, with its main office located at Fifth Avenue and Wood Street, Pittsburgh, Pennsylvania. 2. Defendant is Luff Lawn & Garden, Inc., whose last known address is 1590 State Street, Camp Hill, PA 17011. 3. Defendant, on November 9, 2005, executed a Promissory Note ("Note") and thereby promised prompt and punctual payment of the indebtedness due under the Note. A true and correct copy of said Note is attached hereto, incorporated herein and labeled Exhibit "A". 4. By the Note, Defendant, promised to pay Plaintiff the principal sum of $40,000.00 together with interest thereon in the manner provided by the Note. 5. There has been no assignment of the Note. 6. Judgment has not been entered on the Note in any jurisdiction against the Defendant. 7. The judgment by confession sought by PNCB in this Complaint is not being entered against a natural person in connection with a consumer credit transaction. 8. By Warrant of Attorney contained in the Note, Defendant authorized entry of judgment by confession. 9. Pursuant to the Warrant of Attorney executed by Defendant, Defendant waived the benefit of all laws exempting real or personal property from execution. 10. Pursuant to the Warrant of Attorney contained in the Note, judgment may now be entered against Defendant as payment was not made when due creating an event of default under the Note and, accelerating all amounts due. The Warrant of Attorney also allows judgment to be entered as of any term. 11. Under the Note, the following amounts are now due by Defendant to PNCB: Principal Debt $ 39,887.57 Interest through 1/10/08 1,521.98 Late charge 150.02 Attorney's Commission 4,140.95 Total $ 45,700.52 12. Under the terms of the Note, Defendant is liable to PNCB for attorney's commission of ten percent for collection. WHEREFORE, Plaintiff, PNCB, demands that a judgment be entered against Defendant as authorized in the Warrant of Attorney contained in the Note, in the sum of $45,700.52, together with interest and costs of suit. TUCKER ARENSBERG, P.C. By Donna M. Donaher, Esquire 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 -2- (Page 2. of -' ) PROMISSORY NOTE References 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: LUFF LAWN & GARDEN, INC. (SSN: 23-2248765) Lender: PNC Bank. National Association 1590 STATE STREET Business Banking CAMP HILL, PA 17011 4242 Carlisle Pike Camp Hill. PA 17001 d 00'1 Principal Amount: $40,000.00 Initial Rate: 6.750% Date of Note: November 9, 2005 PROMISE TO PAY. LUFF LAWN & GARDEN, INC. ("Borrower") promises to pay to PNC Bank, National Association ("Lender"). or order, in lawful money of the United States of America, the principal amount of Forty Thousand & 001100 Dollars ($40,000.00) or so much as may be outstanding, together with interest on the unpaid outstanding principal balance of each advance. Interest shall be calculated from the date of each advance until repayment of each advance. PAYMENT. Borrower will pay this loan in accordance with the following payment schedule: Borrower will pay regular monthly payments of accrued Interest beginning on the first day of the Billing Cycle after the initial advance, and all subsequent interest payments are due on the some day of each month after that. Borrower will pay this loan in one payment of all outstanding principal plus all accrued interest on the Expiration Date. Borrower may borrow, repay and rsborrow hereunder until the Expiration Date, subject to the terms and conditions of this Nots."Notwithstanding anything contained herein to the contrary, during the first twelve (121 Billing Cycles, the interest rate on this Note shag be a fixed rate of 6.75%." The "Expiration Date" shall mean NOVEMBER 9, 2006, or such later date as may be designated by written notice from Lender to Borrower but in no event after the tenth anniversary of this Note. Borrower acknowledges and agrees that in no event shall the aggregate unpaid principal amount of advances under this Note exceed the face amount of this Note. Unless otherwise agreed or required by applicable law, payments win be applied first to any accrued unpaid interest; then to principal; then to any unpaid collection costs; and then to any Into charges. Interest on this Note Is computed on a 3651365 simple Interest basis; that is, by applying the ratio of the annual interest rate over the number of days in a year (366 during leap years). multiplied by the outstanding principal balance, 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. VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an independent index which is the the highest Prime Rate as published in the "Money Rates" section of The Wall Street Journal (the "Index"). The Index is not necessarily the lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notice to Borrower. Lender will tell Borrower the current Index rate upon Borrower's request. The interest rate change will not occur more often than each month. The Index for a Billing Cycle is determined on the first day of that cycle based on the Index for the last day of the preceding calendar month which is reported. Interest on this Note is computed on the basis of a year of 366/365 days, by applying the ratio of the annual interest rate on the first day of the Billing Cycle over a year of 366/365 days to obtain a daily periodic rate, multiplied by the average daily balance during the Billing Cycle, multiplied by the number of days in the Billing Cycle. Billing Cycle means the monthly interval between regular periodic statements. Borrower understands that Lender may make loans based on other rates as well. The Index currently is 6.750% per annum. The interest rate to be applied to the unpaid principal balance of this Note will be at a rate equal to the Index, resulting in an initial rate of 6.750% per annum. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law. PREPAYMENT. Borrower may pay without penalty 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 of accrued unpaid interest. Rather, early payments will reduce the principal balance due. Borrower agrees not to send Lender payments marked "paid in full", "without recourse", or similar language. If Borrower 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 Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes "payment in full" 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: PNC Bank, National Association, Attn: Doc Prep/Operations Department - BBCAC, 8800 Tinicum Boulevard 5th Floor Philadelphia, PA 19153. LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment or $100.00, whichever is less. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, Lender, at its option, may, if permitted under applicable law, increase the variable interest rate on this Note to 5.000 percentage points over the Index. 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 interest rate applicable to this Note at the time judgment is entered. 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. Other Defaults. Borrower or Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or in any of the related documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower. Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the related documents. 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 time made or furnished or becomes false or misleading at any time thereafter. Insolvency, The dissolution or termination of Bor EXHIBIT ess, the insolvency of Borrower, the appointment of a receiver for any part of Borrower's property, a of creditors, any type of creditor workout, or the commencement of any proceeding under any bankr inst Borrower. Creditor or Forfeiture Proceedings. Commencem 9 loceedings, whether by judicial proceeding, self-help, (Page 3 of 4.) PROMISSORY NOTE Loan No: 010764273 (Continued) Page 2 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 shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if 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 of any of the indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note. Change In Ownership. Any change in ownership of twenty-five percent (25%) or more of the common stock of Borrower. 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 impaired. Insecurity. Lender in good faith believes itself insecure. LENDER'S RIGHTS. Upon default, Lender 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, without notice, and then Borrower will pay that amount. ATTORNEYS' FEES: EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees 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), appeals and any anticipated post-judgement collection services. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION. PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS NOTE. ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. GOVERNING LAW. This Nate will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Note has been accepted by Lender in the Commonwealth of Pennsylvania. CHOICE OF VENUE. If there Is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, Commonwealth of Pennsylvania. RIGHT OF SETOFF. In addition to all liens upon and rights of setoff against Borrower's money, securities or other property given to Lender by law, Lender shall have, with respect to Borrower's obligations to Lender under this Note and to the extent permitted by law, a contractual possessory security interest in and a contractual right of setoff against, and Borrower hereby assigns, conveys, delivers, pledges and transfers to Lender all of Borrower's right, title and interest in and to, all of Borrower's deposits, moneys, securities and other property now or hereafter in the possession of or on deposit with, or in transit to, Lender or any other direct or indirect subsidiary of The PNC Financial Services Group, Inc., whether held in a general or special account or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise, excluding, however, all IRA, Keogh, and trust accounts. Every such security interest and right of setoff may be exercised without demand upon or notice to Borrower. Every such right of setoff shall be deemed to have been exercised immediately upon the occurrence of an Event of Default hereunder without any action of Lender, although Lender may enter such setoff on its books and records at a later time. COLLATERAL. Borrower acknowledges this Note is secured by the following collateral described in the security instrument listed herein: collateral described in a Commercial Security Agreement dated November 9, 2005. LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under this Note may be requested either orally or in writing by Borrower or by an authorized person. Lender may, but need not, require that all oral requests be confirmed in writing. All communications, instructions, or directions by telephone or otherwise to Lender are to be directed to Lender's office shown above. Borrower agrees to be liable for all sums either: (At advanced in accordance with the instructions of an authorized person or (B) credited to any of Borrower's accounts with Lender. The unpaid principal balance owing on this Note at any time may be evidenced by endorsements on this Note or by Lender's internal records, including daily computer print-outs. Lender will have no obligation to advance funds under this Note if: (A) Borrower or any guarantor is in default under the terms of this Note or any agreement that Borrower or any guarantor has with Lender, including any agreement made in connection with the signing of this Note; (B) Borrower or any guarantor ceases doing business or is insolvent; (C) any guarantor seeks, claims or otherwise attempts to limit, modify or revoke such guarantor's guarantee of this Note or any other loan with Lender; (D) Borrower has applied funds provided pursuant to this Note for purposes other than those authorized by Lender: or (E) Lender in good faith believes itself insecure. FINANCIAL INFORMATION PROVISION. Borrower agrees to deliver any financial and other business information concerning Borrower that Lender may request from time to time, such as annual and interim financial statements (all of which shaft be prepared in accordance with generally accepted accounting principles) and federal income tax returns. DEPOSITORY. Borrower will establish and maintain, with Lender, Borrower's primary depository account(s). If Borrower fails to establish and/or maintain its primary depository account(s) with Lender, Lender may, at its option, upon thirty (30) days notice to Borrower, increase the interest rate payable by Borrower under this Note by up to 1.00 percentage points (1.00%). Lender's right to increase the interest rate pursuant to this paragraph shall be in addition to any other rights or remedies Lender may have under this Note, all of which are hereby reserved, and shall not constitute a waiver, release or limitation upon Lender's exercise of any such rights or remedies. OVERDRAFT PROTECTION. If Borrower elects Overdraft Protection in connection with the Line of Credit evidenced by this Note by so indicating in the space provided below, during the Draw Period, Lender will make a deposit to the business checking account with Lender designated below or in a subsequent writing by Borrower whenever a withdrawal is made from that checking account, either by writing a check from the checking account or in some other way, in an amount which is more money than the balance in that checking account. The amount which Lender will deposit will be the amount by which the withdrawal exceeds the balance in the checking account, rounded up to the next whole $1.00; however, the amount which will be deposited will not be less than $50.00. Lender will charge the amount of the deposit as an advance under the Line of Credit. Lender does not have to make a deposit to the checking account if a deposit will cause the balance of this account to exceed the maximum amount of the Line of Credit evidenced by this Note or would otherwise violate this Note or any other document(s) executed in connection with the Line of Credit. Checking account checks which are returned will be subject to Lender's regular overdraft charges. Overdraft Protection will not be available during the Repayment Period. YESL Borrower wants Overdraft Protection for PNC Bank Checking Account No (Page A. of 4) PROMISSORY NOTE Loan No: 010764273 (Continued) Page 3 AUTOMATIC DEBIT OF PAYMENTS. The Borrower hereby authorizes the Lender to charge the Borrower's deposit account at the Lender for any payment when due hereunder. If the Borrower revokes this authorization for any reason whatsoever or fails to maintain a deposit account with the Lender which may be charged, the Lender may, at its option, upon thirty (30) days notice to the Borrower, increase the interest rate payable by the Borrower under this Note by twenty-five f25) basis points 10.25%). TERMINATION OF LINE OF CREDIT. Upon sixty 160) days prior written notice to Borrower, Lender may terminate the Line of Credit, with or without cause, and demand full payment of the entire unpaid principal balance of this Note, and all accrued and unpaid interest on the balance, and all other amounts due in accordance with the terms of this Note. Unless Lender's notice provides otherwise, Lender will have no further obligation to advance funds under this Note. CONVERSION TO TERM LOAN. Lender retains the right to convert all or any part of the outstanding indebtedness under this Note into an amortizing term loan, with or without cause, upon providing sixty (60) days prior written notice to Borrower (the "Conversion Notice'). If Lender exercise this right, Lender will compute a new monthly payment with respect to the part of the indebtedness so converted (the "Term Loan Portion'). and Borrower will be advised of such new monthly payment with respect to the Term Loan Portion in the Conversion Notice. Monthly payments on the Term Loan Portion following the Conversion Notice shall be based upon an amortization period specified in the Conversion Notice (the "Amortization Period"). Subsequent payments on the Term Loan Portion shall be determined monthly and shall be in the amounts determined by Lender to be necessary to fully amortize the then outstanding principal balance so converted over the then remaining Amortization Period at the effective interest rate on this Note as of the date the amount of such payment is calculated by Lender. All outstanding principal and accrued interest will be due on the last day of the Amortization Period. All of the provisions of this Note and any Related Documents shall apply to the Term Loan Portion except to the extent inconsistent with this paragraph. 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. GENERAL PROVISIONS. Lender 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 terms 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, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender 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 then 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 JUDGEMENT. THE BORROWER HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD, AFTER THE OCCURRENCE OF ANY EVENT OF DEFAULT HEREUNDER, TO APPEAR FOR THE BORROWER AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS. AGAINST THE BORROWER IN FAVOR OF LENDER OR ANY HOLDER HEREOF FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE, ALL ACCRUED INTEREST AND ALL OTHER AMOUNTS DUE HEREUNDER, TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF THE GREATER OF 10% OF SUCH PRINCIPAL AND INTEREST OR $1,000 ADDED AS A REASONABLE ATTORNEY'S FEE, AND FOR DOING SO, THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THE BORROWER HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. INTEREST ON ANY SUCH JUDGMENT SHALL ACCRUE AT THE DEFAULT RATE. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS LENDER SHALL ELECT UNTIL SUCH TIME AS LENDER SHALL HAVE RECEIVED PAYMENT IN FULL OF THE DEBT, INTEREST AND COSTS. NOTWITHSTANDING THE ATTORNEY'S COMMISSION PROVIDED FOR IN THE PRECEDING PARAGRAPH (WHICH IS INCLUDED IN THE WARRANT FOR PURPOSES OF ESTABLISHING A SUM CERTAIN). THE AMOUNT OF ATTORNEYS' FEES THAT LENDER MAY RECOVER FROM THE BORROWER SHALL NOT EXCEED THE ACTUAL ATTORNEYS' FEES INCURRED BY LENDER. PRIOR TO SIGNING THIS NOTE. BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE 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: LUFF LAWN & GARDEN, INC. S (Seal) JA S A. STO FE JPsit of LUFF LAWN & G , DEN, INC. B *KISE,E T. STOF E V t oLUFF ARDEN. INC. NSEA wW l?"..6. Vr. 0% C.M. Mrr.. F:....+, S.vtwa 4.e. 19!>. ]006. A6 mo. 6.1. . IA T1CF11--K - I37 ' -1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, ) Plaintiff, ) No. vs. ) LUFF LAWN & GARDEN, INC., ) Defendant. ) CERTIFICATE OF RESIDENCE I hereby certify that the precise address of Plaintiff is: Fifth Avenue and Wood Street Pittsburgh, Pennsylvania 15222 and that the last known address of Defendants is: 1590 State Street Camp Hill, PA 17011 sy Donna M. Donaher, Esquire Attorney for PNC Bank, National Association AFFIDAVIT The undersigned hereby certifies that the judgment to be entered in this action is not being entered against a natural person in connection with a consumer credit transaction. To the contrary, the underlying transaction is a commercial transaction. Donna M. Donaher, Esquire Attorney for PNC Bank, National Association Sworn to and sub§pribed before me this day of , 2008. Notary P lc BANK ;PIN:316524-1 000011-134928 =COMMIOJNWEALTH OF PENNSYLVANIA l Seal , Notary Publi c Allegheny County pires Oct. 31, 2009 Member, Pennsylvania Association of Notaries ACT 105 OF 2000 NOTICE A JUDGMENT HAS BEEN ENTERED AGAINST YOU BY CONFESSION OF JUDGMENT. PURSUANT TO 42 PA. C.S.A. §2737.1, IF YOU WERE INCORRECTLY IDENTIFIED AS A DEFENDANT IN THE COMPLAINT IN CONFESSION OF JUDGMENT, YOU MAY BE ENTITLED TO COSTS AND REASONABLE ATTORNEY FEES AS DETERMINED BY THE COURT. YOU MAY TAKE ACTION TO STRIKE THE JUDGMENT BY FOLLOWING THE PROCEDURE IN RULE 2959 WHICH IS AS FOLLOWS: PENNSYLVANIA RULE OF CIVIL PROCEDURE 2959 - STRIKING OFF JUDGMENT. (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 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 Pennsylvania Rule of Civil Procedure 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 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 show cause and the answer shall be served as provided in Rule 440 (see text of Rule 440 reprinted below). (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 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 is pending. Rule 440. Service of Legal Papers other than Original Process (a) (1) Copies of all legal papers other than original process filed in an action or served upon any party to an action shall be served upon every other party to the action. Service shall be made (i) by handing or mailing a copy to or leaving a copy for each party at the address of the party's attorney of record endorsed on an appearance or prior pleading of the party, or at such other address as a party may agree, or Note: Such other address as a party may agree might include a mailbox in the Prothonotary's office or an e-mail address. For electronic service by means other than facsimile transmission, see Rule 205.4(g). (ii) by transmitting a copy by facsimile to the party's attorney of record as provided by subdivision (d). (2) (i) If there is no attorney of record, service shall be made by handing a copy to the party or by mailing a copy to or leaving a copy for the party at the address endorsed on an appearance or prior pleading or the residence or place of business of the party, or by transmitting a copy by facsimile as provided by subdivision (d). (ii) If such service cannot be made, service shall be made by leaving a copy at or mailing a copy to the last known address of the party to be served. Note: This rule applies to the service upon a party of all legal papers other than original process and includes, but is not limited to, all other pleadings as well as motions, petitions, answers thereto, rules, notices, interrogatories and answers thereto. Original process is served under Rule 400 et seq. (b) Service by mail of legal papers other than original process is complete upon mailing. (c) If service of legal papers other than original process is to be made by the sheriff, he shall notify by ordinary mail the party requesting service to be made that service has or has not been made upon a named party or person. BANK FIN:316524-1 000011-134928 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, ) Plaintiff, ) No. vs. ) LUFF LAWN & GARDEN, INC., ) Defendant. ) AFFIDAVIT I, Darnella Ganaway, Attorney Relations Manager, PNC Bank, National Association, hereby certify that the facts set forth in the foregoing Complaint in Confession of Judgment are true and correct to the best of my knowledge, information and belief; that the Exhibits attached to the Complaint in Confession of Judgment are true and correct copies of the originals; and that the Borrower is in default under the Notes (as those are defined in the Complaint); that the underlying transactions giving rise to this action are commercial in nature and are not consumer credit transactions against a natural person; and that I am authorized to make this Affidavit. Sworn to and subscribed before me this '7 q 14 day of ?/l?l/jLQ,2 , 2008. COMMONWEALTH OF PENNSYLVANIA ki2?1? kV= LMMW Xk lyn Robison Notary Pubk Notary Public w"mE*kuNwa. 2MI I Psrw?s ylvania Assoclatbn of Naf w%* My commission expires: BANK FIN:316528-1 000011-134928 PNC Bank, National Association VERIFICATION The undersigned, Darnella Ganaway, hereby verifies the statements of fact contained in the attached Complaint in Confession of Judgment to be true and correct according to his personal knowledge, information and belief, and further pledges that this verification is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Date: 2 '5 •06 By: Attorney Relations Manager l' ?? L -G S L C-? ^' _ C'C '?' c? f,?? ? _.? 1 r';' ? Q ? ?' " ? ? ? iT ; 'l'7 tt ,' , V q,-, .... ?..? .-?-j . . t : ?..,.' Q ? ? ? , £ ? _ -Qi- ?- ? N :_? r-rl ;?? .?- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, ) Plaintiff, ) No. vs. ) LUFF LAWN & GARDEN, INC., ) Defendant. ) TO: Luff Lawn & Garden, Inc. 1590 State Street Camp Hill, PA 17011 NOTICE OF ENTRY OF JUDGMENT Please take notice that on Feb . 11 rk , 2008, a Judgment by Confession of Judgment, was entered against you in the court and at docket term and number set forth above. The amount of the Judgment is $45,700.52, plus costs. Pro onotary berian ounty THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, CIVIL DIVISION Plaintiff, NO. 08-970 Civil Term vs. LUFF LAWN & GARDEN, INC., CERTIFICATE OF SERVICE UNDER RULE 2958.1 Code: Defendant. Counsel of Record for This Party: Donna M. Donaher, Esquire Pa. I.D. #53165 TUCKER ARENSBERG, P.C. Firm #287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, ) Plaintiff, ) No. 08-970 Civil Term vs. ) LUFF LAWN & GARDEN, INC., ) Defendant. ) CERTIFICATE OF SERVICE UNDER RULE 2958.1 The undersigned hereby certifies that she did serve a Notice Under Rule 2958.1 of Judgment and Execution thereon, upon the Defendant, Luff Lawn & Garden, Inc., on February 25, 2008, via certified mail, return receipt requested, at the following address: 1590 State Street Camp Hill, PA 17011 A true and correct copy of the Notice Under 2958.1 and return receipt is attached hereto. TUCKER ARENSBERG, P.C. By YDKS-? Donna M. Donaher, Esquire Pa. I.D. #53165 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 BANK FIN:319592-1 000011-134928 TUCKER ARENSBERG Attorneys IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, vs. LUFF LAWN & GARDEN, INC., Defendant. TO: Luff Lawn & Garden, Inc. 1590 State Street Camp Hill, PA 17011 No. 08-970 Civil Term Notice Under Rule 2958.1 of Judgment and Execution Thereon Notice of Defendant's Rights A judgment in the amount of $45,700.052 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 1 1 n °2nsbC'rC P 500 One PP C- Place Pittsburg", PA 1522-2 2.536. 2 C 2.5?G ti _, , c R.cO N. Front Street P.O. Box 889 Harrisburg, PA 1710_ h. 717.234.412 i. 7 7.`%^= . TU E WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH s 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: LAWYER REFERRAL SERVICE Lawyer Referral Service Court Administrator Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 Donna M. Donaher, Esquire Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Attorney for Plaintiff BANK- FIN:318873-1 000011-134928 -1500 C`ne ?P? Place Pittsburgh, PA -15222 p. 412_.566.1212 z,. 12.59q. F., "a. :: !zE-e r!aw.coM -uo„e ,rensberg, N. Front Street F.O. So" 889 Harrisburg, PA 17108 p. 717.234.412-i f. 717.232. 86^ , I 4 ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiAl or on the front if space permits. -4 1. Article Addressed to: A. Sig*u ? Agent ? AdCJ 60ee B. Received by (Printed Nam C. Date of Delivery A D. Is delivery Ovent i1ql TN ?? Yes If YES, ent address below?o r r.'F; EB 2S- ; maw :iJCamp Hill, PA 17011 3. ice Type Certlfied Mail ? Express Mail ? Registered ? Return Receipt for Merch*rase ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Exba Fee) ? Yes 2. Article Number 7007 2680 0001 1010 9965 (Transfer from service label) PS Form 3811, February 2004 Domestic Return Receipt 1 b 4 C11 11b 102595-02-M-1540 Luff Lawn & Garden, Inc.` 1590 State Street !i ? ? ?? ,.? ^-t"1 'fix ? ? „? 4?? ? ??? i:y .. ?J ryl , j, ' _,??. 1.., I ? ` .rte +?* •? I THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, CIVIL DIVISION Plaintiff, NO. 08-970 vs. LUFF LAWN & GARDEN, INC., Defendant. PRAECIPE TO VACATE JUDGMENT Code: Counsel of Record for This Party: Donna M. Donaher, Esquire Pa. I.D. #53165 TUCKER ARENSBERG, P.C. Firm #287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, vs. LUFF LAWN & GARDEN, INC., Defendant No. 08-970 PRAECIPE TO VACATE JUDGMENT TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly vacate the judgment entered in favor of PNC Bank, National Association and against the Defendant in the above-referenced case. Sworn to and subscribed before me this ""_? day of , 2008. TUCKER ARENSBERG, P.C. By Donna M. Donaher, Esquire 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Attorneys for Plaintiff Notary Public _ IN:325253-1 000011-134928 COMMONWEALTH OF PENNSYLVANIA l Notari:Ah Mgma szalkaary Public arty 0i Pittsburgheny County jSsicn E)Oct. 31, 2008 My C0MM Member. Pennsylvania AssoclatlOn of NOW)" ? - r,. ,?, ..rr;i?r" --1 °";= tT7 f""° lL? ?., ?^t `a ?. ? -;,? G '7 -_- y? W "ra {,l