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HomeMy WebLinkAbout04-0032IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SPRINGFIELD CONTRACTORS, INC., Plaintiff No. -- WESTWOOD HILLS ASSOCIATES, Defendant Confession of Judgment CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney included in the demand note, a copy of which is attached to the Complaint filed in this action, I appear for the Defendant, Westwood Hills Associates, LLC, and confess judgment in favor of the Plaintiff, Springfield Contractors, Inc., and against Defendant as follows: Principal and accrued interest through 12/31/03 $93,736.93 Reasonable attorney fees (5% of debt) $ 4,686.85 Total $98,423.78 plus post-judgment interest and costs of suit BARLEY, S~]YD/E~ENFT & COHEN, LLC Atto~leys for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SPRINGFIELD CONTRACTORS, INC., Plaintiff No. Oq - WESTWOOD HILLS ASSOCIATES, Defendant Confession of Judgment COMPLAINT IN CONFESSION OF JUDGMENT Plaintiff, through its undersigned counsel, files the following Complaint in Confession of Judgment against Defendant, Westwood Hills Associates, pursuant to Pa.R.C.P. 2950, et seq.: 1. Plaintiffis Springfield Contractors, Inc., a Pennsylvania corporation with an office and place of business at 290 Seaks Rrm Road, Glen Rock, PA 17327-9594, 2. Defendant Westwood Hill Associates, LLC, is a Pennsylvania Limited Liability Company with a mailing address of 4216 Littlerun Road, Harrisburg, PA 17110, and who regularly conducts business in Cumberland County. 3. On or about December 20, 2002, Defendant executed a Demand Note in favor of Plaintiff in the original principal sum of $92,328.47 (Note). A true and correct copy of the Note is attached and made a part hereof as Exhibit A. 4. As more fully set forth in the Note, Defendant owed Plaintiff $35,000.00 in principal payment upon any sale of Lots 7,8,9,10 and 14 within Westwood Hills Phase 2A, located in East Peunsboro Township, Cumberland County, Pennsylvania. transaction. 6. 7. 8. Judgment is not being entered by confession in connection with a consumer credit Thc Note has not been assigned. Judgment has not been entered on the Note in this or any other jurisdiction. As more fully set forth in the Note, Defendant agreed to pay the principal sum by August 20, 2003. 9. As more fully set forth in the Note, Defendant agreed that Plaintiffmay immediately execute upon the confession of judgment clause contained in the Note. 10. Defendant has not made any principal payments to date and has made two interest payments totaling $4,493.93. The current debt owed by Defendant, including principal and accrued interest, is $93,736.93. 11. As more fully set forth in the Note, in the event of a default, Defendant must pay the principal amount, interest at 6%, costs of suit, and reasonable attorney fees in the amount of 5% of the debt. 12. A calculation of the sum due under the Note is as follows: Principal and accrued interest through 12/31/03 $93,736.93 Reasonable attorney fees (5% of debt) $ 4,686.85 Total $98,423.78 2 WHEREFORE, Plaintiff, Springfield Contractors, Inc., hereby confesses judgment in its favor and against Defendant, Westwood Hills Associates, in the amount of $98,423.78, plus post-judgment interest as allowed by law and costs of suit. BARLEY, ~rYDE~T & COHEN, LI_C Rober I. Scheft~F Cou~ D. 78746 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 1229551 VERIFICATION I, Rodney L. Krebs, President of Springfield Contractors, Inc., being authorized to do so, hereby verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unswom falsification to authorities. Dated: /~//~/~ R~ ~/K~eb ~<J DEMAND NOTE $92,328.47 Date: December 20, 2002 FOR VALUE RECEIVED, WESTWOOD HILLS ASSOCIATES, LLC, a Pennsylvania limited liability company (the "Maker"), promises to pay to the order of SPRINGFIELD CONTRACTORS, INC., a Pennsylvania corporation (the "Payee"), at its address at 290 Seaks Run Road, Glen Rock, Pennsylvania 17327 or at such other place as Payee may from time to time designate in writing, the principal sum of Ninety Two Thousand, Three Hundred Twenty Eight Dollars and forty seven cents ($92,328.47), or such lesser amount as is advanced by Payee, or otherwise due to Payee, with interest, on the terms and conditions described below. 1. Pawnents; Maturity. The entire outstanding principal sum under this Note shall be due and payable on August 20, 2003 (the "Maturity Date"). All unpaid principal and accumulated interest owed to Payee shall be payable in full on the Maturity Date. Upon any sale of Lots 7, 8, 9, 10 and 14 within Westwood Hills Phase 2A, Maker shall make a principal payment of $35,000.00 to Payee, and Payee shall then provide to Maker an executed Release, in such form suitable for recording, releasing such lot from the terms and conditions of this Note and the Open End Mortgage and Security Agreement set forth in paragraph 5, herein. 2. Interest. Interest shall accrue on the unpaid principal balance of this Note at six percent (6%). Interest shall be calculated monthly on the basis of the actual number of days elapsed and a year of three hundred sixty (360) days. 3. Post-Judgment Interest. The interest rate or rates provided in this Note shall apply to the indebtedness evidenced hereby before, on, and after the date or dates on which Payee enters judgment on this Note. 4. Intentionally left blank. 5. Security. This Note is secured by, and entitled to all of the benefits of, the Open End Mortgage and Security Agreement, dated the date hereof, between Maker and Payee, as the san~e may be amended, restated, modified or supplemented. 6. Default: Rights, Remedies. (a) On the occurrence of any Default, Payee may exercise any and all fights and remedies set forth in the Demand Note or otherwise available under applicable la~v. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST MAKER. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST MAKER, MAKER KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY, AND, ON THE ADVICE OF COUNSEL, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS MAKER MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA. (b) ON THE OCCURRENCE OF ANY EVENT OF DEFAULT, MAKER AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR AND ENTER JUDGMENT AGAINST MAKER FOR THE UNPAID PRINCIPAL AMOUNT OF THIS NOTE, TOGETHER WITH ALL ACCRUED, UNPAID INTEREST AND LATE CHARGES THEREON (THE "DEBT"), PLUS COSTS OF SUIT AND ATTORNEYS' FEES IN AN AMOUNT EQUAL TO FIVE PERCENT (5%) OF THE DEBT, WITH OR WITHOUT DECLARATION OR STAY OF EXECUTION, AND WITH RELEASE OF ERRORS, FOR WHICH THIS NOTE OR A COPY HEREOF SHALL SERVE AS A SUFFICIENT WARRANT. THIS POWER TO ENTER JUDGMENT BY CONFESSION SHALL NOT BE EXHAUSTED BY ANY EXERCISE AND SHALL CONTINUE UNTIL FULL PAYMENT OF ALL AMOUNTS DUE UNDER THIS NOTE. TO THE EXTENT THE ATTORNEYS' FEES AND OTHER COSTS AND EXPENSES DEMANDED BY PAYEE FROM MAKER UNDER THE LOAN AGREEMENT EXCEED FIVE PERCENT (5%) OF THE DEBT, MAKER HEREBY AUTHORIZES PAYEE TO PETITION THE COURT FOR AN ADDITIONAL AWARD OF FEES AND EXPENSES AND MAKER AGREES NOT TO OPPOSE SUCH PETITION. 7. Waivers. Maker and all endorsers, guarantors and sureties of this Note waive presentment, demand, notice of dishonor, protest, and notice of protest with regard to this Note. 8. Bindin~ Effect. The provisions of this Note shall bind and inure to the benefit of Maker and Payee and their respective successors, heirs, personal representatives and permitted assigns. 9. Joint and Several Oblization. All references herein to the "Maker" shall be deemed to refer to each and every person defined herein as the "Maker" individually, and to all of them, collectively, jointly and severally, as though each were named whenever the term "Maker" is used, and this Note shall be a joint and several obligation of all of them. IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, and intending this to be a sealed instrument, has caused this Note to be duly executed the day and year first above written. WITN~_ S/ATTt,E S~T: WESTWOOD HILLS ASSOCIATES, LLC ' (SEAL) ~,'~lember ~'~ ACT 1_05 OF 2000 NOTICE 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 direct 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 ti) in support of a further request for 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. (c) (2), the petition shall be filed within thirty (30) 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 the proceedings. After being served with a copy of the petition, the plaintiffshall 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 thc petition or answei'. (dj The petition and the rule to show cause and the answer shall be served at provided in Rule 440. (e) The court shall dispose of the rule on petition and answer, and on an), 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 offthe 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. (0 the lien of the judgment or any levy or attachment shall be preserved while the proceedings to strike off or open the judgment pending. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SPRINGFIELD CONTRACTORS, 1NC., Plaintiff WESTWOOD HILLS ASSOCIATES, Defendant Confession of Judgment CERTIFICATE OF ADDRESSES I hereby certify that the address of the Plaintiffis 290 Seaks Run Road, Glen Rock, PA 17327-9594. I hereby certify that the address of the Defendant is 4216 Littlerun Road, Harrisburg, PA 17110. BARLEY, SffYDE~T & COHEN, LLC Attor~ys for Plaintiff Date: December 31, 2003 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SPRINGFIELD CONTRACTORS, INC., Plaintiff WESTWOOD HILLS ASSOCIATES, Defendant No. 04-32 Civil Term Confession of Judgment To the Prothonotary: PRAECIPE TO REMOVE Please mark the above captioned judgment settled/~isfied of record. BARLEY,7:~D?, SZT & COHEN, LLC Rober)/~/. S che ft--~rr / Courf/[D. 78746 100 jgast Market Street P.O. Box 15012 York, PA 17405-7012 717.846.8888 Attorneys for Plaintiff 1240541