HomeMy WebLinkAbout08-4022
Plaintiff,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
NATIONSTAR MORTGAGE, LLC f/k/a CIVIL DIVISION
CENTEX HOME EQUITY
CORPORATION,
vs.
THE UNKOWN HEIRS AND
ADMINISTRATORS OF THE ESTATE
OF JESSE MAE NESMITH,
NO.: 08 -409A
TYPE OF PLEADING
0'ivjl Term
CIVIL ACTION - COMPLAINT
IN MORTGAGE FORECLOSURE
Defendants.
FILED ON BEHALF OF:
Nationstar Mortgage, LLC fVa
Centex Home Equity Corporation
Plaintiff,
TO: DEFENDANT(S) COUNSEL OF RECORD FOR THIS
YOU ARE HEREBY NOTIFIED TO PLEAD TO THE PARTY:
ENCLOSED COMPLAINT WITHIN TWENTY (20) DAYS
FROM SERVICE HEREOF OR A DEFAULT JUDGMENT Scott A. Dietterick, Esquire
MAY BE TERMED G ST YOU. Pa. I.D. #55650
Kimberly A. Bonner, Esquire
Pa. I.D. #89705
ATTORNE FOR PLAINTIFF
I HEREBY CERTIFY THAT THE ADDRESS
OF THE PLAINTIFF IS:
350 Highland Drive
Lewisville, TX 75067
AND THE DEFENDANT(S):
456 Northwest/ r t
Carlisle. PA. ]/18231
ATTR? FOV PLAINTIFF
CERTIFICATE OF LOCATION
I HEREBY CERTIFY T THE LOCATION OF
THE REAL TATE AIYECIED BY THIS LIEN IS
456 Noah est *ee isle, PA 17013
JAMES, SMITH, DIETTERICK &
CONNELLY LLP
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
ATTORNE Off PL
IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE
ADVISED THAT:
PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 ET
SEQ. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY
PORTION THEREOF, IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30)
DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN
AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF;
OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF
REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL
FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE
ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE.
THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30)
DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO
COLLECT THIS ;DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER
TO THIS COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS,
YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST
WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF
THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF
YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE
ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON
YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR
EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL
WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN
ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS
SUIT.
IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN
ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL
ESTATE.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
NATIONSTAR MORTGAGE, LLC f/k/a CIVIL DIVISION
CENTEX HOME EQUITY
CORPORATION,
Plaintiff,
vs.
NO..
THE UNKOWN HEIRS AND
ADMINISTRATORS OF THE ESTATE
OF JESSE MAE NESMITH,
Defendants.
NOTICE TO DEFEND
You have been sued in court. If you wish to defend against the claim set forth in the following
pages, you must take action within twenty (20) days after this complaint and notice are served, by
entering a written appearance personally or by attorney and filing in writing with the court your
defenses or objections to the claims set forth against you. You are warned that if you fail to do
so the case may proceed without you and a judgment may be entered against you by the court
without further notice for any money claimed in the complaint or for any other claim or relief
requested by the plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU SHOULD
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
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
NATIONSTAR MORTGAGE, LLC f/k/a CIVIL DIVISION
CENTEX HOME EQUITY
CORPORATION,
Plaintiff,
vs.
NO..
THE UNKOWN HEIRS AND
ADMINISTRATORS OF THE ESTATE
OF JESSE MAE NESMITH,
Defendants.
AVISO
USTED HA SIDO DEMONDADO/A EN CORTE. Si usted desea defenderse de las demandas
que se presentan etas adelante en las siguientes paginas, debe tomar accion dentro do los
proximos veinte (20) dias despues de la notifacacion de esta Demanda y Aviso radicando
personalmente o por medio de un abogado una comperencencia escrita y redicanco en la Courte
por escrito sus defensas de, y objecciones a, los demandas presentadas aqui en contra suya. Se le
advierte de que si'usted falla de tomar accion como se describe anteriormente, el caso puede
proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la
Corte sin mas aviso adicional. Usted puede perder dinero O propieded u otros derechos
importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABAGADO IIVIMEDIATAMENTE. SI
USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME A VAYA A
LA SIGUEINTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR
ASISTENCIA LEGAL.
NOTICE TO DEFEND & LAWYER REFERRAL SERVICE
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
Phone (717) 249-3166
(800) 990-9108
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
NATIONSTAR MORTGAGE, LLC f/k/a CIVIL DIVISION
CENTEX HOME EQUITY
CORPORATION,
NO.: L? _ D.ZaZ cu;'" T.,?
Plaintiff,
vs.
THE UNKOWN HEIRS AND
ADMINISTRATORS OF THE ESTATE
OF JESSE MAE NESMITH,
Defendants.
CIVIL ACTION - COMPLAINT IN MORTGAGE FORECLOSURE
And now comes Nationstar Mortgage, LLC f/k/a Centex Home Equity Corporation, by its
attorneys, James, Smith, Dietterick & Connelly LLP, files this Complaint in Mortgage
Foreclosure as follows:
The Plaintiff is Nationstar Mortgage, LLC f/k/a Centex Home Equity Corporation,
which has its principal place of business at 350 Highland Drive, Lewisville, Texas 75067.
2. The Defendant, Jesse Mae Nesmith, died on August 1, 2005.
3. Ort or about April 11, 2000, Defendant executed a Note in favor of Plaintiff in the
original principal' amount of $25,000.00. A true and correct copy of said Note is marked Exhibit
"A", attached hereto and made a part hereof.
4. On or about April 11, 2000, as security for payment of the aforesaid Note,
Defendant made, executed and delivered to Plaintiff a Mortgage in the original principal amount
of $25,000.00 on the premises hereinafter described, with said Mortgage being recorded in the
Office of the Recorder of Deeds of Cumberland County on March 19, 1996, in Mortgage Book
Volume 1605, Page 894. A true and correct copy of said Mortgage containing a description of the
premises subject to said Mortgage is marked Exhibit "B", attached hereto and made a part hereof.
5. Defendant was the record and real owner of the aforesaid mortgaged premises at
the date of his death.
6. Plaintiff hereby releases the unknown heirs and administrators of the estate of
Defendant from personal liabilities for the debt evidenced by the Note and secured by the
Mortgage.
7. Defendant is in default under the terms of the aforesaid Mortgage and Note for,
inter alia, failure to pay the monthly installments of principal and interest when due.
8. On or about May 19, 2008, Defendant was mailed a combined Notice of
Homeowners' Emergency Mortgage Assistance Act of 1983 and Notice of Intention to Foreclose
Mortgage, in compliance with the Homeowner's Emergency Mortgage Assistance Act, Act 91 of
1983 and Act 6 of 1974, 41 P.S. §101, et seq.
9. The amount due and owing Plaintiff by Defendant is as follows:
Principal $ 23,609.31
Interest through 6/30/08 $ 930.46
Late Charges $ 937.57
Property Insurance $ 1250.38
Bank Fees $ 689.45
Attorney's Fees $ 1,350.00
Title Costs $ 410.00
TOTAL $ 29,177.17
plus interest on the principal sum ($23,609.31) from June 30, 2008, at the rate of $6.79 per diem,
plus additional late charges, and costs (including additional escrow advances), additional
attorneys' fees and costs and for foreclosure and sale of the mortgaged premises.
WHEREFORE, Plaintiff demands judgment in mortgage foreclosure for the amount due
of $29,177.17, with interest thereon at the rate of $6.79 per diem from June 30, 2008 plus
additional late charges, and costs (including additional escrow advances), additional attorneys'
fees and costs and for foreclosure and sale of the mortgaged premises
--ONNELLY LLP
BY
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"
-i....r,LTAI YAidAi..rr v- -- -v- s-,- v:.a assi.
-. • 4 A/iW V 1 1 Yiia s 1 ...-. 1/y,l ALL' i\
IS UNDER NO OBLIGATION TO RElFLNA>\CE THE LOAN AT THAT TIME. YOU WILL,
THEREFORE, RE RE! RED TOviAKE PAYME\'T OUT OF ('ER ASSETS THAT YOU
MAY OWN, OR YOU Vv1LL HAVE TO F11SW A LENDER, WM(,,,i MAY BE THE LENDER
YOU FL% VE 'T'HIS LOAN WITH, %V LLE9G TO LEND YOU THE MONEY. IF YOU
REFINANCE THIS LOAN AT MATURITY, YOU AAY HAVE TO PAY SOME OR ALL OF
TFIE CLOSING COM NORIMALLY ASSOCIATED 14TM A 14EW LOAN EVEN IF YOU
OBTAIN REFLNANCING FROM THE SAME LENDER.
APRIL 11, 2000 PITTSBURGH PNIMSYLVANIA
(Bate) [City] '
(Stan)
456 NORTHWEST STREET, CARLISLE, PENNSYLVANIA 17013
(Propeny Addrexfl
1. BORROWER'S PROMISE TO PAY
In return 1`0T3 loan that I have received, I promise to pay U.S. S 25, 000.00 {this amount is called
"principal "), plus interest, to the order of the Lender. The Lender is
CENTU HOME EQUITY CORBORATTou
I understand that the Lender may transfer this Note. The Lender or anyone who takA%-q this Note by transfer and who is
entitled to receive payments under this Note; is called the "Note Holder."
2. ES-7ERM
Interest will be charged on unpaid principal until the full amount of principal has been paid. 1 will pay interest at a
Yearly rate of 10.500 %.
The interest rate- required by this Section 2 is the rate I will pay both before and after any default described in Section
6(I3) of this Note.
3. PAYMENTS
(A) Time and Plate of Payments
1 will pay principal and inwTest by making payments every month.
I will make my monthly payments on the 15th day of each month begiaaft on
MAY 15 2000 . I will make these payments every month until I have paid all of the principal and
interest and any other charges described below that I may owe tinder this Note. My monthly payments will be aMlied to
interest before principal. If, on APRIL 15, 2015 , I Still owe amounts under this
:Note, I will pay those amounts in full on that date, which is called the "Maturity Date."
I will make my monthly payments at P .O. Sox 199400
DALLAS, TX 75219-9077 or at a different place if required by the Note Holder.
(B) Amount of Nfouthly Payments
My monthly payment will be in the amount of U.S. S 228.69
4. BORROWER'S RIGHT TO PREPAY
I have the right to make payments of principal at any time before they are due. A payment of principal only is known
as a "prepayment." When I make a prepayment, J will tell the Note Holder in writing that I am doing so.
I may make a full prepayment or partial prepayments without paying any prepayment chuge. The Note Holder will
use all of my prepayments to reduce the amount of principal that I owe under this Note. If I make a partial prepayment,
there will be no changes in the due date or in the amount of my monthly payment unless the Note Huldcr agrees in writing
to those changes.
S. LOAN CHARGES
If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the interest or
other loan charges collected or to be collected in connection with this loan exceed the permitted limits, then; (i) any such,
loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (ii) any sums already
roll,--c ted from me which exceeded permitted limits will be refunded to me. The Note Holder may choose to make this
refund by reducing the principal I owe under this Note or by malting a direct payment to me. If a refund reduces
principal, the reduction will be treated as a partial prepayment.
6. BORROWER'S YAILL7t)E;, TO PAY AS REQUHUED
(A) Late Charges for Overdue Payments
If the Note Holder has not received the full amount of any monthly payment by the end of
10 calendar days after the date it is due, I will a late
pay charge to the Note Holder.
The amount of the charge will be 5.04 % of my overdue payment of principal and interest. I will pay this late
rhsron nrnrr,nrh. 1,,,r nnl,r nnn. nn r-1, Inrw nevmr.r
all the interest that I owe on'that amount. That date must be at least M days after the date on which the notice is delivered
• or mailed to me.
(D) No 'Waiver by Note h. er
Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described
above, the Note Holder will still have the right to do so if I am in default at a later time,
(E) Payment or vote Holder's Costs and Expenses
If the Mote Holder has required me to pay immediately in full as described above, the Note Holder will have the right to
be paid back by me for all of its costs and expanses in enforcing this Note to the extent not prohibited by applicable law.
Those expenses include, for example, reasonable attorneys' fees.
7• G1lVING OF NOTICES
Unless applicable law requires a different method, any notice that must be given to rue under this Note will be given by
delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if I give the
Note Holder a notice of my different address.
Any notice that must be given to the Note Holder under this Note will be given by mailing it by first class mall to the
Note Holder at the address stated in Section 3(A) above or at a different address if a I am given a notice of that different
address.
S. OBLIGATIONS OF PERSONS UNDER TFUS NOTE
If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made
in this Note, including the promise to pay the full amount owed. Any person who Is guarantor, surety or endorser of this
Note is also obligated to do these things. Any person who takes aver these obligations, including the obligations of
guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Note Holder
may enforce its rights under this Vote against each person individually or against all of us together. This means that any one
of us may be required to pay all of the amounts owc d under this Note.
9. WAI'V)E9S
I and any person who has obligations tinder this Vote waive the tights of presentment and notice of dishonor.
"Presentineat" means the right to require the Now Holder to demand payment of amounts dire. "Notice of dishonor" means
the right to require the Note Holder to give notice to other persons fiat amounts due have not been paid.
10. UNIFOILM SECURED NOTE
This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to
the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the "Security Instrument"), dated the some
date as this Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I
make in this mote. That Security Instrument describes how and under what conditions I may be required to make immediate
payment in full of all amounts I owe under this Note. Some of those conditions are described as follows:
Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any
interest in it is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and
Borrower is not a natural person) without Lender's prior written consent, Lender may, at its option,
require. immediate payment in full of all sums secured by this Security instrument. However, this option
shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security
Instrument.
If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall
provide a period of not less than 30 days from the date the notice is delivered or mailed within which
Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior
to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument
without further notice or demand on Borrower.
It. APPLICABLE LAW
This Note shall be governed by the laws of the State of >PBtSnvA
If a law, which applies to this loan and sets maximum loan charges is finally interpreted so that the interest and other charges
collected or to be collected in connection with this loan exceed the permitted limits, then: (A) any such interest or other
charge shall be reduced by the amount necessary to reduce the interest or other charge to the permitted limit; and (B) any
sutras already collected from inc which exceed permitted limits will be refunded to me. The Note Holder may choose to
make this refund by reducing the principal I owe under this Note or by making a direct payment to tree. If a refund reduces
principal, the reduction will be treated as a partial prepayment, but in no event will a prepayment charge be assessed if the
Note Holder chooses to reduce my principal balance by applying such execs amounts.
WITNESS THE HAND(S) AND SEAL(S) OF THE LrNDERSICNED.
JESSE DtAE NrESMITR (Seal)
-Borruwrr
-(Seal)
-Borruwer
(Seal)
-Borrower
(W)
-Onrrewcr
ALLONGE T,O.NOTE
LOAN NUMBER: 249602583
I
ALLONGE TO NOTE DATED: 4/11/2000
IN FAVOR OF:
Centex Home Equity
AND EXECUTED BY:
JESSE MAE NESMITH
PAY TO THE ORDER OF
2000-B f Jnae 1. odd,
Bank n ?u?W tha ht Rfifi wd Sevwag lresat d"d Now
WITHOUT RECOURSE
CENTEX ROME EQUITY
B
Anonha reeman
TITLE; DOCUMENT SIGNER
LOAN NUM 3ER: 249602583 NESMITH
NOTICE TO ASSIGNEE
NOTICE: This loan is subject to special rules under the Federal Truth in Lending Act.
Purchasers or assignees of this mortgage could be liable for all claims and defenses with
respect to the mortgage that the borrower could assert against the creditor.
LOAN NUMBER 249602583 NESMI M
NOTICE TO ASSIGNEE
NOTICE This loan is subject to special rules under the Federal Truth in Lending Act.
Purchasers or assignees of this mortgage could be liable for all claims and defenses with
respect to the mortgage that the borrower could assert against the creditor.
i
PREPARED BY
CENTEX HOME EQUITY CORPORATION
P.O. BOX 199111, FINAL ROCS
Dallas, TX 75219
Parcel Number.
06-20-179E-221A
-,f --?I E R
RECD'..,. ,. Cr DEEDS
TO APR 12 Phi 2 09
[Space Above This Line For Recording Data]
249602583 MORTGAGE
TWS MORTGAGE ("Security Instrument") is given on APRIL 11, 2000
JESSE MAE NESMITH
("Borrower"). This Security Instrument is given to
CENTBX HOME EQUITY CORPORATION
. The mortgagor is
which is Organized and existing under the laws of THE STATE OF NEVADA , and whose
addressis 2828 NORTH HARWOOD, DALLAS, TX 75201-1516
TWENTY FIVE THOUSAND & 00/100 ("Lender"). Borrower owes Lander the principal sum of
Dollars (U.S. $ 25, 000.00 ),
This debt is evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which provides for monthly
payments, with the full debt, if not paid earlier, due and payable on APRIL 15, 2015 . This Security
Instrument secures to Leander: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and
modifications of the Note; (b) the payment of all other sums, with interest, advanced under paragraph 7 to protect the security of
this Security Instrument; and (c) the performance of Borrower's covenants and agreements under this Security Instrument and the
Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender the following described property located in
CUMBERLAND County, Pennsylvania:
All that tract or parcel of land as shorn on Schedule W attached hereto
which is incorporated herein and made.a part hereof.
which has the address of 456 NORTHWEST STREET, CARLISLE
Pennsylvania 17013 [Zip Code] ("Property Address");
PENNSYLVANIA - Single Family - FNMA/FHLMC
UNIFORM INSTRUMENT Form 3039 9190
-GWPA) (941o) Amended 12/93
VMP MORTGAGE FORMS -{800)521-7291 )?9 { ??
Pape 1 of a Initiala: 294
[street, City].
111111111111111111111
• 249602583
,TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and
fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument.
All of the foregoing is referred to in this Security Instrument as the "Property."
BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage,
grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and
will defend generally the ante to the Property against all claims and demands, subject to any encumbrances of record.
THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited
variations by jurisdiction to constitute a uniform security instrument covering real property.
UNIFORM COVENANTS, Borrower and Lender covenant and agree as follows:
1. Payment of Principal and Interest; Prepayment and Late Charges. Borrower shall promptly pay when due the
principal of and interest on the debt evidenced by the Note and any prepayment and late charges due under the Note.
2. Funds for Taxes and Insurance. Subject to applicable law or to a written waiver by Lender, Borrower shall pay to
Lender on the day monthly payments are due under the Note, until the Note is paid in full, a sum ("Funds") for: (a) yearly taxes
and assessments which may attain priority over this Security Instrument as a Lien an the Property; (b) yearly leasehold payments
or ground rents on the Property, if any; (c) yearly hazard or property insurance premiums; (d) yearly flood insurance premiums, if
any; (e) yearly mortgage insurance premiums, if any; and (f) any sums payable by Borrower to Lender, in accordance with the
provisions of paragraph 8, in lieu of the payment of mortgage insurance premiums. These items are called "Escrow Items."
Lender may, at any time, collect and hold Funds in an amount not to exceed the maximum amount a lender for a federally related
mortgage loan may require for Borrower's escrow account under the federal Real Estate Settlement Procedures Act of 1974 as
amended from time to time, 12 U.S.C. Section 2601 et seq. ("RESPA" ), unless another law that. applies to the Funds sets a lesser
amount. If so, Lender may, at any time, collect and hold Funds in an amount not to exceed the lesser amount. Lender may
estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow Items or
otherwise in accordance with applicable law.
The Funds shall be held in an institution whose deposits are insured by a federal agency, instrumentality, or entity (including
Lender, if Lender is such an institution) or in any Federal Home Loan Bank. Lender shall apply the Funds to pay the Escrow
Items. Lender may not charge Borrower for holding and applying the Funds, annually analyzing the escrow account, or verifying
the Escrow Items, unless Lender pays Borrower interest on the Funds and applicable law permits Lender to make such a charge.
However, Lender may require Borrower to pay a one-time charge for an independent real estate tax reporting service used by
Lender in connection with this loan, unless applicable law provides otherwise. Unless an agreement is made or applicable law
requires interest to be paid, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Borrower and
Lender may agree in writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower, without charge, an
annual accounting of the Funds, showing credits and debits to the Funds and the purpose for which each debit to the Funds was
made. The Funds are pledged as additional security for all sums secured by this Security Instrument.
If the Funds held by Lender exceed the amounts permitted to be held by applicable law, Lender shall account to Borrower for
the excess Funds in accordance with the requirements of applicable law. If the amount of the Funds held by Lender at any time is
not sufficient to pay the Escrow Items when due, Lender may so notify Borrower in writing, and, in such case Borrower shall pay
to Lender the amount necessary to make up the deficiency. Borrower shall make up the deficiency in no more than twelve
monthly payments, at Lender's sole discretion.
Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund to Borrower any Funds
held by Lender. If, under paragraph 21, Lender shall acquire or sell the Property, Lender, prior to the acquisition or sale of the
Property, shall apply any Funds held by Lender at the time of acquisition or sale as a credit against the sums secured by this
Security Instrument.
3. Application of Payments. Unless applicable law provides otherwise, all payments received by Lender under paragraphs
I and 2 shall be applied: first, to any prepayment charges due under the Note; second, to amounts payable under paragraph 2;
third, to interest due, fourth, to principal due; and last, to any late charges due under the Note.
4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines and impositions attributable to the Property
which may attain priority over this Security Instrument, and leasehold payments or ground rents, if any. Borrower shall pay these
obligations in the manner provided in paragraph 2, or if not paid in that manner, Borrower shall pay them on time directly to the
person owed payment. Borrower shall promptly furnish to Lender all notices of amounts to be paid under this paragraph. If
Borrower makes these payments directly, Borrower shall promptly furnish to Lender receipts evidencing the payments.
Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in
writing to the payment of the obligation secured by the lien in a manner acceptable to Lender; (b) contests in good faith the lien
by, or defends against enforcement of the lien in, legal proceedings which in the Lender's opinion operate to prevent the
enforcement of the lien; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to
this Security Instrument. If Lender determines that any part of the Property is subject to a lien which may attain priority over this
Security Instrument, Lender may give Borrower a notice identifying the lien. Borrower shall satisfy the lien or take one or more
of the actions set forth above within 10 days of the giving of notice.
Form 304"190
ta -6H(PA)(9410) Pape 2 016 Innlah: ?
B44At ? ??
S. Hazard or Property Insurance. Borrower shall keep the improvements now existing 249602583
or hereafter erected on the Property
insured against loss by fire, hazards included within the term "extended coverage" and any other hazards, including floods or
flooding, for which Lender requires insurance. This insurance shall be maintained in the amounts and for the periods that Lender
requires.-The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's approval which shall not
be unreasonably withheld. If Borrower fails to maintain coverage described above, Lender may, at Lender's option, obtain
coverage to protect Lender's rights in the Property in accordance with paragraph 7.
All insurance policies and renewals shall be acceptable to Lender and shall include a standard mortgage clause. Lender shall
have the right to hold the policies and renewals. If Lender requires, Borrower shall promptly give to Lender all receipts of paid
premiums and renewal notices. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender
may make proof of loss if not made promptly by Borrower.
Unless Lender and Borrower otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the
Property damaged, if the restoration or repair is economically feasible and Lender's security is not lessened. If the restoration or
repair is not economically feasible or Lender's security would be lessened, the insurance proceeds shall be applied to the sums
secured by this Security Instrument, whether or not then due, with any excess paid to Borrower. If Borrower abandons the
Property, or does not answer within 30 days a notice from Lender that the insurance carrier has offered to settle a claim, then
Lender may collect the insurance proceeds. Lender may use the proceeds to repair or restore the Property or to pay sums secured
by this Security Instrument, whether or not then due. The 30-day period will begin when the notice is given.
Unless Lender and Borrower otherwise agree in writing, any application of proceeds to principal shall not extend or postpone
the due date of the monthly payments referred to in paragraphs I and 2 or change the amount of the payments. If under paragraph
21 the Property is acquired by Lender, Borrower's right to any insurance policies and procoods resulting from damage to the
Property prior to the acquisition shall pass to Lender to the extent of the sums secured by this Security Instrument immediately
prior to the acquisition.
6. Occupancy, Preservation, Maintenance and Protection of the Property; Borrower's Loan Application; Leaseholds.
Borrower shall occupy, establish, and use the Property as Borrower's principal residence within sixty days after the execution of
this Security Instrument and shall continue to occupy the Property as Borrower's principal residence for at least one year after the
date of occupancy, unless Lender otherwise agrees in writing, which consent shall not be unreasonably withheld, or unless
extenuating circumstances exist which are beyond Borrower's control. Borrower shalt not destroy, damage or impair the Property,
allow the Property to deteriorate, or commit waste on the Property. Borrower shall be in default if any forfeiture action or
proceeding, whether civil or criminal, is begun that in Lender's good faith judgment could insult in forfeiture of the Property or
otherwise materially impair the lien created by this Security Instrument or Lender's security interest. Borrower may cure such a
default and reinstate, as provided in. paragraph 18, by causing the action or proceeding to be dismissed with a ruling that, in
Lender's good faith determination, precludes forfeiture of the Borrower's interest in the Property or other material impairment of
the lien created by this Security Instrument or Lender's security interest. Borrower shall also be in default if Borrower, during the
loan application process, gave materially false or inaccurate information or statements to Lender (or failed to provide Lender with
any material information) in connection with the loan evidenced by the Note, including, but not limited to, representations
concerning Borrower's occupancy of the Property as a principal residence. If this Security Instrument is on a leasehold, Borrower
shall comply with all the provisions of the lease. If Borrower acquires fee title to the Property, the leasehold and the fee title shall
not merge unless Lender agrees to the merger in writing.
7. Protection of Leader's Rights in the Property. If Borrower fails to perform the covenants and agreements contained in
this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property (such as a
proceeding in bankruptcy, probate, for condemnation or forfeiture or to enforce laws or regulations), then Lender may do and pay
for whatever is necessary to protect the value of the Property and Lender's rights in the Property. Lender's actions may include
paying any sums secured by a lien which has priority over this Security Instrument, appearing in court, paying reasonable
attorneys' fees and entering on the Property to make repairs. Although Lender may take action under this paragraph 7, Lender
does not have to do so.
Any amounts disbursed by Lender under this paragraph 7 shall become additional debt of Borrower secured by this Security
Instrument. Unless Borrower and Lender agree to other terms of payment, these amounts shall bear interest from the date of
disbursement at the Note rate and shall be payable, with interest, upon notice from Lender to Borrower requesting payment.
8. Mortgage Insurance. If Lender required mortgage insurance as a condition of making the loan secured by this Security
Instrument, Borrower shalt pay the premiums required to maintain the mortgage insurance in effect. If, for any reason, the
mortgage insurance coverage required by Lender lapses or ceases to be in effect, Borrower shall pay the premiums required to
obtain coverage substantially equivalent to the mortgage insurance previously in effect, at a cost substantially equivalent to the
cost to Borrower of the mortgage insurance previously in effect, from an alternate mortgage insurer approved by Lender. If
substantially equivalent mortgage insurance coverage is not available, Borrower shall pay to Lender each month a sum equal to
one-twelfth of the yearly mortgage insurance premium being paid by Borrower when the insurance coverage lapsed or ceased to
be in effect. Lender will accept, use and retain these payments as a loss reserve in lieu of mortgage insurance. Loss reserve
® -8H(P0e4ror Form 30 9 9/90
m Pape 3 of 6 InbiaW d11 N-/x
8o?x16?5? ??
.1 1
249602583
payments may no longer be required, at the option of Lender, if mortgage insurance coverage (in the amount and for the period
that Lender requires) provided by an insurer approved by Lender again becomes available and is obtained. Borrower shall pay the
premiums required to maintain mortgage insurance in effect, or to provide a loss reserve, until the requirement for mortgage
insurance ends in accordance with any written agreement between Borrower and Lender or applicable law.
9. Inspection. Lender or its agent may make reasonable entries upon and inspections of the Property. Lender shall give
Borrower notice at the time of or prior to an inspection specifying reasonable cause for the inspection.
10. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any
condemnation or other taking of any part of the Property, or for conveyance in lieu of condemnation, are hereby assigned and
shall be paid to Lender.
In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Security Instrument,
whether or not then due, with any excess paid to Borrower. In the event of a partial taking of the Property in which the fair market
value of the Property immediately before the taking is equal to or greater than the amount of the sums secured by this Security
Instrument immediately before the taking, unless Borrower and Lender otherwise agree in writing, the sums secured by this
Security Instrument shall be reduced by the amount of the proceeds multiplied by the following fraction: (a) the total amount of
the sums secured immediately before the taking, divided by (b) the fair market value of the Property immediately before the
taking. Any balance shall be paid to Borrower. In the event of a partial taking of the Property in which the fair market value of the
Property immediately before the taking is less than the amount of the sums secured immediately before the taking, unless
Borrower and Lender otherwise agree in writing or unless applicable law otherwise provides, the proceeds shall be applied to the
sums secured by this Security Instrument whether or not the sums are then due.
If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the condemnor offers to make an
award or settle a claim for damages, Borrower fails to respond to Lender within 30 days after the date the notice is given, Lender
is authorized to collect and apply the proceeds, at its option, either to restoration or repair of the Property or to the sums secured
by this Security Instrument, whether or not then due.
Unless Lender and Borrower otherwise agree in writing, any application of proceeds to principal shall not extend or postpone
the due date of the monthly payments referred to in paragraphs I and 2 or change the amount of such payments.
11. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for payment or modification
of amortization of the sums secured by this Security Instrument granted by Lender to any successor in interest of Borrower shall
not operate to release the liability of the original Borrower or Borrower's successors in interest. Lender shall not be required to
commence proceedings against any successor in interest or refuse to extend time for payment or otherwise modify amortization of
the sums secured by this Security Instrument by reason of any demand made by the original Borrower or Borrower's successors
in interest. Any forbearance by Lender in exercising any right or remedy shall not be a waiver of or preclude the exercise of any
right or remedy.
12. Successors and Assigns Bound; Joint and Several Liability; Co-signers. The covenants and agreements of this
Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the provisions of
paragraph 17. Borrower's covenants and agreements shall be joint and several. Any Borrower who co-signs this Security
Instrument but does not execute the Note: (a) is co-signing this Security Instrument only to mortgage, grant and convey that
Borrower's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums
secured by this Security Instrument; and (c) agrees that Lender and any other Borrower may agree to extend. modify. forbear or
make any accommodations with regard to the terms of this Security instrument or the Note without that Borrower's consent.
13. Loan Charges. If the loan secured by this Security Instrument is subject to a law which sets maximum loan charges,
and that law is finally interpreted so that the interest or other loan charges collected or to be collected in connection with the loan
exceed the permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the
permitted limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower.
Lender may choose, to make this refund by reducing the principal owed under the Note or by making a direct payment to
Borrower. If a refund reduces principal, the reduction will be treated as a partial prepayment without any prepayment charge
under the Note.
14. Notices. Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing it
by fast class mail unless applicable law requires use of another method. The notice shalt be directed to the Property Address or
any other address Borrower designates by notice to Lender. Any notice to Lender shall be given by first class mail to Lender's
address slated herein or any other address Lender designates by notice to Borrower. Any notice provided for in this Security
Instrument shall be deemed to have been given to Borrower or Lender when given as provided in this paragraph.
15. Governing Law; Severability. This Security Instrument shall be governed by federal law and the law of the
jurisdiction in which the Property is located. In the event that any provision or clause of this Security Instrument or the Note
conflicts with applicable law, such conflict shall not affect other provisions of this Security Instrument or the Note which can be
given effect without the conflicting provision. To this end the provisions of this Security Instrument and the Note are declared to
be severable.
® -6H(PA) (94 o) Form S9/90
? Pape 4 of B Inltlals ( r
BON160r5m >09
249602583
,16. Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this Security Instrument
17. Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any interest in it is
sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without
Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security
Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this
Security Instrument.
If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less .
than 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security
Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted
by this Security Instrument without further notice or demand on Borrower.
18. Borro wer's Right to Reinstate. If Borrower meets certain conditions, Borrower shall have the right to have
enforcement of this Security Instrument discontinued at any time prior to the earlier of. (a) 5 days (or such other period as
applicable law may specify or reinstatement) before sale of the Property pursuant to any power of sale contained in this Security
Instrument; or (b) entry of a judgment enforcing this Security Instrument. Those conditions are that Borrower. (a) pays Lender all
sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred; (b) cures any
default of any other covenants or agreements; (c) pays all expenses incurred in enforcing this Security Instrument, including, but
not limited to, reasonable attorneys' fees; and (d) takes such action as Lender may reasonably require to assure that the lien of this
Security Instrument, Lender's rights in the Property and Borrower's obligation to pay the sums secured by this Security
Instrument shall continue unchanged. Upon reinstatement by Borrower, this Security Instrument and the obligations secured
hereby shall remain fully effective as if no acceleration had occurred. However, this right to reinstate shall not apply in the can of
acceleration under paragraph 17.
19. Sale of Note; Change of Loan Servicer. The Note or a partial interest in the Note (together with this Security
Instrument) may be sold one or more tin: s without prior noti: a to Borrower. A sale may result in a change in the entity (known
as the "Loan Servicer"} that collects monthly payments due under the Note and this Security Instrument. There also may be one or
more changes of the an Servicer unrelated tp a sale of the Note. If there is a change of the Loan Servicer, Borrower will be
given written notice of the change in accordance with paragraph 14 above and applicable law. The notice will state the name and
address of the new Loan Seavieer and the address to which payments should be made. The notice will also contain any other
informapion required by applicable law.
20. Haws Substances. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any
Hazardous Substances on or in the Property, Borrower shall not do, nor allow anyone else to do, anything affecting the Property
that is in violation of any Environmental Law, The preceding two sentences shall not apply to the presence, use, or storage on the
Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses
and to maintenance of the Property.
Borrower shall promptly give Lender written notice of any investigation, claim, demand, lawsuit or other action by any
governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law
of which Borrower has actual knowledge. If Borrower teams,. or is notified by any governmental or regulatory authority, that any
removal or other remediation of any Hazardous Substance affecting the Property is necessary, Borrower shall promptly take all
necessary remedial actions in accordance with Environmental Law.
As used in this paragraph 20, "Hazardous Substances" are those substances defined as toxic or hazardous substances by
Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic
pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials. As used in
this paragraph 20, "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate
to health, safety or environmental protection.
NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows:
21. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of
any covenant or agreement in this Security Instrument (but not prior to acceleration under paragraph 17 unless
applicable law provides otherwise). Lender shall notify Borrower of, among other things: (a) the default; (b) the action
required to cure the default; (c) when the default must be cured; and (d) that failure to cure the default as specified may
result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the
Property. Lender shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the
foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If
the default is not cured as specified, Lender, at its option, may require immediate payment in full of all sums secured by
this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding.
Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 21, including,
but not limited to, attorneys' fees and costs of title evidence to the extent permitted by applicable law.
22. Release. Upon payment of all sums secured by this Security Instrument, this Security Instrument and the estate
conveyed shall terminate and become void. After such occurrence, Lender shall discharge and satisfy this Security Instrument to
Borrower. Borrower shall pay any recordation costs. Lender may charge Borrower a fee for releasing this Security Instrument, but
only if the fee is paid to a third party for services rendered and the charging of the fee is permitted under applicable law.
23. Waivers. Borrower, to the extent permitted by applicable law, waives and releases any error or defects in proceedings to
enforce this Security Instrument, and hereby waives the benefit of any present or future laws providing for stay of execution,
extension of time, exemption from attachment, levy and sale, and homestead exemption.
® -GNMAP94to) Form 30;9.9120
® Pape 5 of 8 Initials:
OCif r"5r Fm S%
249602583 ?•
24. Reinstatement Period. Borrower's time to reinstate provided in paragraph 18 shall extend to one hour prior to the
commencement of bidding ata sheriffs sale or other sale pursuant to this Security Instrument.
2S. Purchase Money Mortgage. If any of the debt secured by this Security Instrument is lent to Borrower to acquire title to
the Property, this Security Instrument shall be a purchase money mortgage,
26. Interest Rate After Judgment. Borrower agrees that the, interest rate payable after a judgment is entered on the Note
or in an action of mortgage foreclosure shall be the rate payable from time to time under the Note,
27, hiders to this Security Instrument. If one or more riders are executed by Borrower and recorded together with this
Security Instrument, the covenants and agreements of each such rider shall be incorporated into and shall amend and supplement
the covenants and agreements of this Security Instrument as if the rider(s) were a part of this Security Instrument.
[Check applicable box(es)]
M Adjustable Rate Rider [] Condominium Rider
? Graduated Payment Rider 0 l-4 Family Rider
? Planted Unit Development Rider 0 Biweekly Payment Rider
® Balloon Rider ? Rate Improvement Rider
? VA Rides 0 Second Home Rider
? Other(s) [specify]
$EE ATTACRBD BALLOON RIDER
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and in
any rider(s) executed by Borrower and recorded with it.
Witnesses:
(sue)
J888E MAE N881[ITH -Borrower
(Seal)
-Borrower
(Seal) (Sea))
-Borrower -Borrower
Certificate of Residence
I, W t Art ED dJ . ? S c(-t_ , do hereby certify that the correct address of
the within-named Mortgagee is
2828 NORTH HARWOOD, DALLAS, TX 75201-1516
Witness my hand this i I day of ArJri 1 9.000
Vno N• 1e?,Agent of Mortgagee
'TiJFrE,QS?t+I
COMMONWEALTH OF PENNSYLVANIA, ?y?1.,??tnty ss:
On this, the day of 19Dr-. '; .UUD before me, the undersigned officer,
personally appeared SSA. ! ' `Q11_... /V p /y y ` -
?1
known to me (or satisfactorily proven) to be the
s name i S subscribed to the within instrument and acknowledged that ?2?.---
- • ,..; a Purposes herein contained.
?: REOF I hereunto set my hand and official seal.
p i o, Not ry Pubft
1. ,.
w "M •'C.,.,h" .
H/T4 t1a.+?t
,. , u•,?• Title of Officer
t -61i(PA)to??o? Pays a of a Form 3035 9190
BOOK IM-5 Mt
ALL that tract of land situate in the Fifth Ward of the Borough of Carlisle,
Cumnerland County, Pennsylvania, more particularly bounded and described as
follows:
BEGINNING at a point on the West side of North West Street, which point is 70.2
fees, more or less, South of the South side of "A" Street, and which point is
in An extension of the centerline of the common wall dividing No. 456 and No.
458 North West Street; thence Southwardly along the West side of North West
Street 27 feet, more or less, to the property known as 454 North West Street;
thence Westwardly by said property 100 feet, more or less, to the property now
or formerly of D.W. Wetzel; thence Northwardly along the D.W. Wetzel property,
27 feet, more or less, to the line of the property known as 458 North West
Street; thence Eastwardly along said line 107 feet, more or less, the Place of
Beginning.
HAVING thereon erected a dwelling house being known and numbered as 456 North
West Street, Carlisle, Pennsylvania.
.
pOK isQS rt sao
BALLOON RIDER 249602583
THIS BALLOON RIDER is made this 11th day of APRIL 2000
and is incorporated into and shall be deemed to amend and supplement the Mortgage, Deed of Trust or
Deed to Secure Debt (the "Security Instrument") of the same date given by the undersigned (the
"Borrower") to secure the Borrower's Note to
CENTEX ROKE EQUITY CORPORATION
(the "Lender") of the same date and covering the Property described in the Security Instrument and located
at:
456 NORTMIEST STREET, CARLISLE PENNSYLVANIA 17013
(Property Addreal
The term of the loan is 180 months. As a result, you will be required to repay the entire principal
balance and any accrued interest then owing 180 months from the date on which the loan is made.
The Lender has no obligation to refinance this loan at the end of its term. Therefore, you may be
required to repay the loan out of assets you own or you may have to find another Lender willing to
refinance the loan.
Assuming this Lender or another Lender refinances this loan at maturity, you will probably be charged
interest at market rates prevailing at that time and such rates may be higher than the interest rate on this
loan. You may also have to pay some or all of the closing costs normally associated with a new mortgage
loan.
BY SIGNING BELOW, Borrower accepts and agrees to the terms contained in this Balloon Rider.
r ,
i1D1E (Seal) Seal)
Borrower Borrower
_(Seal)
Borrower
(Seal)
Borrower
(Seal)
Borrower
CE87OU (012098)
yr;
Stara of Pennsylvania l std,
County of Cumberland J `?«
1%cordad in the office for the recordin
c it.
Xft ' trvxnd for umbcdand County, P?
in f3 Vol. Page ? ?•?'?'
witna.s my hand and seal of office of
Carlisle, PA this _ day of _ 5z _7A
Recorder
(sea)
Borrower
r
i
?a
• 800K 1605 PA X .S()l
VERIFICATION
Scott A. Dietterick, Esquire hereby states that he is attorney for PLAINTIFF in this
matter, that Plaintiff is outside the jurisdiction of the court and or the Verification could not be
obtained within the time allowed for the filing of the pleading, that he is authorized to make this
verification pursuant to Pa. R. C. P. 1024 (c) and that the statements made in the foregoing
pleading in the Civil Action in Mortgage Foreclosure are based upon information supplied by
Plaintiff and are true and correct to the best of his knowledge, information and belief.
Furthermore, it is the undersigned's intention to substitute a verification from Plaintiff as soon as
it is received by counsel.
The undersigned understands that this statement,* mad4subjekt to the penalties of 18
Pa. C.S. Sec. 4904 relating to unworn falsification
Scott A. Vieiicl&lEsq
PA I.D..0
Dated: U
MW
W
.s
00
1
u) v
5
_
SHERIFF'S RETURN - REGULAR
CASE NO: 2008-04022 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
NATIONSTAR MORTGAGE LLC
VS
NESMITH JESSE MAE ESTATE OF
MARK CONKLIN
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - MORT FORE
was served upon
NESMITH JESSE MAE ESTATE UNKNOWN HEIRS & ADMINISTRATORS the
DEFENDANT at 0015:25 HOURS, on the 11th day of July 2008
at 456 NORTH WEST STREET
CARLISLE, PA 17013 by handing to
JULIE NESMITH OCCUPANT
a true and attested copy of COMPLAINT - MORT FORE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
5.00
.00
10.00
00
33.00
Sworn and Subscibed to
before me this
day
So Answers:
aeoollr e A?-
e T omas 1n
07/14/2008
JAMES SMITH DIETTERICK
By:_
5eputKy
Sh riff
of A. D.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
NATIONSTAR MORTGAGE, LLC f/k/a CIVIL DIVISION
CENTEX HOME EQUITY
CORPORATION,
NO.: 08 4022
Plaintiff,
vs.
THE UNKNOWN HEIRS AND
ADMINISTRATORS OF THE ESTATE
OF JESSE MAE NESMITH,
Defendants.
PRAECIPE TO DISCONTINUE ACTION
TO THE PROTHONOTARY:
Please discontinue the above-captioned action without prejudice.
Submitted by:
JAM T, SMITH, DIETTERICK &
CO tLY LLrA \
BY:
Scott A. Ikietterick, Esquire
PA I.D. #55650
Attorney for Plaintiff
P.O. Box 650
Hershey, PA 17033
(717) 533-3280
f-? >
C
4
I ,
Steven J. Schiffman, Esq.
Merritt C. Reitzel, Esq.
SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C.
2080 Linglestown Road, Suite 201
Harrisburg, PA 17110-9670
(717) 540-9170
ROBERT E. DIEHL,
Plaintiff
V.
MOHAWK CARPET DISTRIBUTION,
L.P., as successor in interest to
ALADDIN MILLS, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY PENNSYLVANIA
: No. 09-4022
CIVIL TERM
DEFENDANT'S PETITION TO STRIKE OR OPEN
CONFESSED JUDGMENT
AND NOW, Defendant Mohawk Carpet Distribution, L.P., as successor-in-interest to
Aladdin Mills, Inc. ("Defendant") by and through its counsel, Serratelli, Schiffman, Brown &
Calhoon, P.C., files this Petition to Strike or Open Confessed Judgment pursuant to Pa.R.C.P.
2959, and in support thereof avers the following:
1. PARTIES AND BACKGROUND
1. Defendant is a Delaware limited partnership with a business address at 160 South
Industrial Boulevard Southwest, Calhoun, Georgia.
2. Plaintiff/Respondent Robert E. Diehl ("Plaintiff') is an adult individual with a last
known address at 500 Redco Drive in Enola, Cumberland County, Pennsylvania.
3. Plaintiff commenced this action on June 16, 2009, by filing a Complaint for
Confession of Judgment pursuant to Pa.R.C.P. 2951(a) against Defendant upon a
Commercial Lease containing a warrant of attorney ("the Lease"). True and correct
copies of the Complaint for Confession of Judgment and the Lease are attached
hereto as Exhibits A and B, respectively.
4. On June 6, 1995, the parties executed a lease for a term of five years, commencing
August 1, 1995 ("the Initial Term").
5. At the expiration of the Initial Term, Defendant renewed the Lease for a second five-
year term, commencing August 1, 2000 and expiring July 31, 2005 ("the Renewal
Term") in accordance with the "Option to Renew" section of the Lease.
6. Defendant paid all rent due under the Lease during both the Initial Tern and the
Renewal Term.
7. As the July 31, 2005 expiration date for the Renewal Term approached, Defendant's
Operations Manager, Jeff Edwards, contacted Plaintiff to discuss extending the Lease
for a term of 18 to 24 months, rather than renewing the Lease for a third five-year
term.
8. Mr. Edwards explained that Defendant did not want to renew the Lease for a third
five-year term, and that it was only looking to stay at the leased premises until it
could move into another, larger facility.
9. On January 3, 2005, Mr. Edwards sent Plaintiff a letter confirming their conversation
regarding an 18- to 24-month extension of the Lease, and requested that Plaintiff
forward to him the necessary paperwork to extend the Lease for such a term. A true
and correct copy of the letter dated January 3, 2005 is attached hereto as Exhibit C.
10. On February 7, 2005, Plaintiff sent Mr. Edwards a letter in response, wherein he
stated his wife was seriously ill, and he would therefore "like to see you do an
extended time on your lease as much of my time will be required taking care of my
wife and hope not to need to find a replacement." A true and correct copy of the
letter dated February 7, 2005 is attached hereto as Exhibit D.
11. Despite Mr. Edwards' request in his letter of January 3, 2005, Plaintiff did not
provide Defendant with a written agreement to extend the Lease for the additional
term.
12. In furtherance of the parties' verbal agreement to extend the existing Renewal Term
rather than renewing the Lease for a third five-year term, and in light of Defendant's
plans to vacate the leased premises, Plaintiff sent Defendant a letter on July 6, 2005
requesting that Defendant take action to repair various damage to the premises caused
by Defendant's operations, which would allow Plaintiff to show the premises to
prospective tenants and/or buyers. A true and correct copy of the letter dated July 6,
2005 is attached hereto as Exhibit E.
13. In the July 6 letter, Plaintiff stated that after Defendant paid the July 2005 rent and
gave its assurance that it would make the requested repairs to the premises, Plaintiff
would prepare the extension agreement.
14. Although Defendant paid Plaintiff the rent for July 2005 and gave Plaintiff its
guarantee that it would make the requested repairs, Plaintiff failed to provide
Defendant with an extension agreement as promised.
15. As the Lease was set to expire on July 31, 2005 and no extension agreement had been
executed, Mr. Edwards contacted Plaintiff and the parties verbally agreed to extend
the lease on a month-to-month basis commencing August 1, 2005 until the parties
were able to execute a written extension agreement.
16. Although many of the repairs requested by Plaintiff in his July 6, 2005 letter would
not have been required to satisfy the Lease's requirement that the premises be
restored to the same condition it was in when Defendant took possession, Defendant
nevertheless agreed to make the additional repairs and improvements in reliance upon
Plaintiff's representation that he was agreeable to an extension of the Lease and
would prepare the extension agreement.
17. On August 9, 2005, after the Renewal Term had expired, Plaintiff sent Defendant a
letter notifying it that the new amount of Defendant's monthly rent payment would be
$7,750.36 for the remaining months of 2005. A true and correct copy of the letter
August 9, 2005 is attached hereto as Exhibit F.
18. The letter further advised Defendant that with regard to the status of the extension
agreement, "[t]here is much updated legal wording that must be put [in] any extension
change agreement and I will write it."
19. Defendant paid Plaintiff the adjusted monthly rent for July and August of 2005, and
continued to make monthly rental payments through the date it vacated the premises.
20. To date, Plaintiff has failed to provide Defendant with an extension agreement.
21. Defendant sent Plaintiff a letter on July 7, 2006 notifying Plaintiff that it was
terminating the month-to-month lease, and would be vacating the premises effective
Sunday, September 30, 2006. A true and correct copy of the letter dated July 7, 2006
is attached hereto as Exhibit G.
22. Defendant's letter of July 7 also notified Plaintiff that it was rescinding any prior
offers to commence an extended lease term.
23. Defendant paid all rent due under the Lease through the date it vacated the premises
in September of 2006, and it continued to pay rent for two additional months after
vacating the property while it completed the agreed-upon repairs.
24. On December 8, 2006, Defendant informed Plaintiff it had completed all agreed-upon
repairs, and that it was returning possession of the premises to Plaintiff.
II. GROUNDS FOR RELIEF
A. Invalidity of Warrant of Attorney
25. The foregoing paragraphs are incorporated herein by reference.
26. The judgment by confession in this matter was entered based on the authority
contained in the warrant of attorney contained in the Lease.
27. The Lease expired on July 31, 2005, and at that time, the parties commenced a new
month-to-month lease term.
28. At the time the Lease was executed, Defendant did not agree that the warrant of
attorney would continue to apply after the expiration of the Lease.
29. The judgment entered in this matter is invalid as it was entered pursuant to an expired
warrant of attorney, which constitutes a defect appearing on the face of the record.
WHEREFORE, Defendant respectfully requests that this Honorable Court issue a rule upon
Plaintiff to show cause why the judgment by confession entered in this matter should not be
stricken or opened.
B. Nonoccurrence of Default or Conditions Precedent
30. The foregoing paragraphs are incorporated herein by reference.
31. The terms of the warrant of attorney contained in the Lease require the occurence of a
default in the payment of rent before judgment may be entered.
32. Plaintiff was aware in January of 2005 that Defendant did not intend to renew the
Lease for a third five-year term, and was only seeking to remain at the premises for a
shorter term of 18 to 24 months.
33. The correspondence between the parties clearly establishes that the parties were
engaged in ongoing negotiations towards an agreement that would allow Defendant to
remain at the premises after the expiration of the Lease on July 31, 2005 for a period
of less than five years.
34. The parties verbally agreed to a month-to-month lease term until a written extension
agreement could be executed by the parties.
35. Defendant gave Plaintiff sufficient notice of its intention to terminate the month-to-
month lease effective September 30, 2006.
36. Defendant did not "hold over" the Lease, resulting in a renewal of the Lease for a
third five-year term.
37. Based on the foregoing, the applicability of the terms of the Lease and the occurrence
of a default thereunder is a matter outside the Lease.
38. Accordingly, the entry of judgment upon praecipe pursuant to Pa.R.C.P. 2951(a) was
improper under Pa.R.C.P. 2951(c)(3).
WHEREFORE, Defendant respectfully requests that this Honorable Court issue a rule upon
Plaintiff to show cause why the judgment by confession entered in this matter should not be
stricken or opened.
C. Failure To Properly Assess Or Account For Damages
39. The foregoing paragraphs are incorporated herein by reference.
40. The computation of any amount owed to Plaintiff as the result of Defendant's alleged
default would require consideration of the date of the alleged default, which is a
matter outside the Lease.
41. In addition, the warrant of attorney only authorizes collection of "the rent reserved
under this agreement of lease, together with an attorney fee of five percent."
42. Pursuant to Plaintiff's Complaint and Confession of Judgment, in addition to damages
for rent and attorneys' fees, the Prothonotary assessed additional damages for late
fees, costs of suit, and common expenses.
43. As the warrant of attorney does not provide for the collection of late fees, costs of
suit, or "common expenses," the computation of these amounts requires consideration
of matters outside the instrument.
44. Accordingly, the entry of judgment upon praecipe pursuant to Pa. R.C.P. No. 2951(a)
was improper under Pa. R.C.P. No. 2951(c)(4).
WHEREFORE, Defendant respectfully requests that this Honorable Court issue a rule upon
Plaintiff to show cause why the judgment by confession entered in this matter should not be
stricken or opened.
D. Promissory Estoppel
45. The foregoing paragraphs are incorporated herein by reference.
46. Plaintiff was aware in January of 2005 that Defendant did not wish to renew the
Lease for a third five-year term, and the correspondence between the parties clearly
establishes that Plaintiff represented to Defendant that he was agreeable to an
extension for a period of approximately 18 to 24 months.
47. Rather than vacating the leased premises on July 31, 2005, Defendant remained at the
premises beyond that date in reliance upon Plaintiff's promise to extend at the Lease
extend the Lease beyond July 31, 2005 for approximately 18 to 24 months.
48. In reliance upon Plaintiffs promise to extend the lease term beyond July 31, 2005
Defendant spent substantial sums of money to make the repairs and improvements
requested by Plaintiff, which Defendant would not have been required to make under
the Lease.
49. It is Plaintiff's contention that effective the parties agreed that upon expiration of the
Lease, the lease would proceed on a month-to-month basis until a written extension
agreement could be executed.
50. Should the Court determine that a month-to-month lease was not formed under the
facts as set forth above, Plaintiff is nevertheless estopped from denying the month-to-
month or extended lease since Defendant detrimentally relied on Plaintiff's promises
and expended substantial sums of money to make the requested improvements and
repairs, and further continued to make rental payments in accordance with the parties'
mutual promises thereunder.
51. In light of the foregoing, Plaintiff is estopped from asserting the hold-over provision
of the Lease, to the detriment of Defendant.
WHEREFORE, Defendant respectfully requests that this Honorable Court issue a rule upon
Plaintiff to show cause why the judgment by confession entered in this matter should not be
stricken or opened.
Respectfully submitted,
SERRATELLI, SCHIFFMAN,
BROWN & CALHOON, P.C.
2080 Linglestown Road, Suite 201
Harrisburg, PA 17110
Phone: (717) 540-9170
Fax: (717) 540-5481
Attorneys for Defendant
Date: July 23, 2009
Steven J. Schiffman, Esq.
Attorney ID #25488
VERIFICATION
I, Jeff Edwards, state that I am an authorized agent of Mohawk Carpet Distribution, L.P.,
Plaintiff in this matter, that I am authorized to make this Verification on its behalf, and that the
facts set forth in the foregoing pleading are true upon my personal knowledge, information and
belief. I understand that my statements are made subject to 18 Pa. C.S. § 4904 providing for
criminal penalties for unsworn falsification to authorities.
MOHAWK CARPET DISTRIBUTION, L.P.
as successor in interest to ALADDIN MILLS, INC.
By
E wards, Authorized Agent
CERTIFICATE OF SERVICE
I, Merritt C. Reitzel, Esquire, hereby certify that on this 23`d day of July, 2009, I served a
true and correct copy of the foregoing Petition to Strike or Open Judgment by Confession via
First Class US Mail, postage prepaid, upon the following:
No V. Otto, III, Esquire
Seth Moseby, Esquire
MARTSON DEARDORFF WILLIAMS
OTTO GILROY & FALLER
10 East High Street
Carlisle, PA 17013
By:
Merritt C. Reitzel,
1'
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C?
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No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL,
V.
: IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:NO. C/- '-/Oa ?- c s-,.: ( -t.qx
: CIVIL ACTION - LAW
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
NOTICE OF ENTRY OF JUDGMENT
PURSUANT TO PAR P NO 236
TO: Mohawk Carpet Distribution, L.P.
c/o Dawn Knowles, Esquire
160 South Industrial Blvd., S.W.
P.O. Box 12069
Calhoun, GA 30703-7002
You are hereby notified that on ^ /? ` 09
judgment by confession was entered
against you in the above-captioned case in favor of Robert E. Diehl as follows:
Principal
Late Fees
Common Expenses
Costs of Suit (estimated)
Attame Fees
Total:
Date: ,LGQ 7
$79,253.96
$2,400.00
$1,076.61
$500.00
13.276.20
$87,206.77
Pr onotary
FARLES%C1m9s 436 Bob Dieh&U35.92.coo0-pd
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY &c FALLER
MARTSON LAW OFFICES
10 East High Street, r
Carlisle, PA 17013 fi
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL,
v.
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
: NO.
: CIVIL ACTION - LAW
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the Commercial Lease attached as Exhibit "A" to the
Complaint filed in the above-captioned case, we appear for the Defendant, Mohawk Carpet
Distribution, L.P., as successor-in-interest to Aladdin Mills, Inc., and confess judgment in favor of
Robert E. Diehl against Mohawk Carpet Distribution, L.P., as successor-in-interest to Aladdin Mills,
Inc., as of May 22, 2009, as follows:
Principal $79,253.96
Late Fees $2,400.00
Common Expenses $1,076.61
Costs of Suit (estimated) $500.00
Attorney Fees $1976.2
0
Total: $87,206.77
TRUE COPY FROM RECORD
In Testimony whereof, i here unto set my hand
and the seal of said Court at Carlisle, Pa.
This .... ?.?¢.??... day of..
.?.?..,,.?.....?;:1:.. ......C?,..........
..............
Prothonotary
Respectfully submitted:
MARTSON LAW OFFICES
By: __'"v J .
No V. Otto
III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
Attorney I.D. No. 203046
IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
TRUE COPY FROM RECORD
P%FILEMCrms1%36BobDkhM436.92.t0n2.wpd In Testimony whereof. 4 here unto set my hand
and the seat of said Court at Carlisle, Pa.
This ....?.c,4/1A .. day of..-..,
No V. Otto III, Esquire
r'`.-? o::.. J..,........
I.D. No. 27763 Prothonotary
Seth T. Mosebey, Esquire I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
?v f ?r,4,
V. : NOt c? - ?f 0.1,:)-
.
CIVIL ACTION - LAW
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
COMPLAINT FOR CONFESSION OF JUDGMENT
Robert E. Diehl ("Plaintiff') is an adult individual residing at 500 Redco Drive,
Enola, Cumberland County, Pennsylvania.
2. Mohawk Carpet Distribution, L.P. {"Defendant") is a Delaware limited partnership
with a principal place of business at 1910 Park 100 Drive, Glen Burnie, Maryland.
Defendant is the successor-in-interest to Aladdin Mills, Inc.
4. On June 6, 1995, Plaintiff and Aladdin Mills, Inc. entered into a Commercial Lease
("Lease"). A true and correct copy of the Lease is attached hereto and incorporated as Exhibit "A."
5. Pursuant to the Lease, Aladdin Mills, Inc. agreed to rent warehouse space located at
Suites 100 through 105, 13 Brenneman Circle, Mechanicsburg, Cumberland County, Pennsylvania
("Premises") from Plaintiff.
6. Pursuant to Paragraph 5 of the Lease, a holding over by the Lessee constituted a
renewal for a "like term."
7. Because the Lease was entered into for a period of five years, a renewal of the Lease
would operate as a renewal for five years.
Defendant held over the initial period of the Lease, resulting in a renewal of the Lease
for a period from August 1, 2000, through July 31, 2005.
9. Defendant held over on July 31, 2005, resulting in a renewal period from August 1,
2005, through July 31, 2010.
10. Defendant was current on its rent through May 31, 2006.
11. Thereafter, Defendant failed to make any timely rent payments.
12. Defendant ceased operations at the Premises and vacated the Premises on September
30, 2006. A copy of correspondence from Dawn H. Knowles dated July 7, 2006, confirming these
facts is attached hereto and incorporated as Exhibit "B."
13. Pursuant to Paragraph 3 of the Lease, "[i]f the Lessee should remove or prepare to
remove, or attempt to remove from the premises hereby leased before the expiration of the term or
at any time during the continuance of [the Lease], ... then ... rent for the term of twelve months at
the rate which it is then due and collectable under the terms of [the Lease] shall immediately become
due and payable and shall be collectable by distraint or otherwise."
14. Pursuant to Paragraph 12 of the Lease, "[t]he said Lessee hereby confesses judgment
for the rent reserved under this agreement of lease, together with an attorney fee of five per cent for
collection, and execution may be issued thereon from time to time for any rent due and owing under
this lease, and judgment in ejectment as herein provided may be entered concurrently therewith."
15. The Lease provides for a late penalty of $200.00 for each month that rent payments
are late.
16. Defendant failed to make any timely rent payments from October 2006 through
September 2007.
17. The total amount of late penalties owed to Plaintiff from October 2006 through
September 2007 is $2,400.00.
18. The monthly rental payments for October 2006 through September 2007 were
$7,750.36 per month.
19. On November 6, 2006, Defendant paid Plaintiff $7,750.36 as rent for October 2006.
20. Defendant has failed and refused to pay any additional rent since November 6, 2006.
21. The total amount of monthly rental payments due to Plaintiff for October 2006
through September 2007 is $85,253.96.
22. Pursuant to Paragraph 8 of the Lease, Defendant agreed to pay all bills for light, heat,
electricity, water, and other common expenses (collectively, "Common Expenses").
23. Defendant owes Common Expenses for 2007 in the amount of $1,076.61. A copy
of the invoice for Common Expenses is attached hereto and incorporated as Exhibit "C."
24. Plaintiff has retained Defendant's security deposit of $6,000.00 and provided
Defendant with a credit for this amount.
25. The total amount owed to Plaintiff as a result of Defendant's breach of the Lease is
$82,730.57, plus an attorney's fee of $3,976.20.
26. Judgment is not being entered by confession against a natural person in connection
with a consumer credit transaction.
27. The Lease has not been assigned.
28. Judgment has not been entered on the Lease in any jurisdiction.
29. Defendant defaulted on its obligations under the Lease by failing to pay rent, CAM
fees, and late fees.
WHEREFORE, Plaintiff requests that this Honorable Court enter judgment in his favor in
the amount of $86,706.77, plus costs, and any other relief this Court deems appropriate.
MARTSON LAW OFFICES
By
No V. Otto III, Esquir
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
10 East High Street
Carlisle, PA 17013
Dated: /???? (717) 243-1850
Attorneys for Plaintiff
EXHIBIT A
r
Robert E. Diehl
500 Rodeo Drive, 611014, PA 1702,5
Redco 766-2995
Mobile 574-0500
COMMERCIAL LEASE
THIS AGRRPMNT of Lease made this 06 day of June
A.D.1995. Between Robert E. Diehl of SOD RLDCO Drive, Enola,
P T025 (717-766- X95) Lessor and Aladdin Mills, Inc., of
a 45--& 44 4 - Corporation authorized to do business in the
state of Pennsylvania.
WITMESONTH, that the Lessor, in consideration of the rents
and covenants hereinafter mentioned, do demise and lease unto
the said Lessee, to be used as office warehouse the premises
situate in the County of Cumberland and State of PA described
as follows, to wit:
Suites 100 thru 105, 13 Brenneman Circle,
Mechanicsburg, PA 17055. Containing 29,200 Sq.. ft.
nominal,heated warehouse space and one powder room. Outside
parking for vehicles: in front and rear of the leased area.
TO HAVE AND TO HOLD UNTO THE LESSEE, subject to the
conditions of this agreement, for the term beginning on the
first day of August, 1995 and ending on the Thirty First day
of July, 2000. 100s,
IN CONSIDBRATION OV WHICH the said Lessee agrees that they
will pay to the Lessor for the use of said premises, the sum
of Three Hundred seventy Four Thousand Four Hundred Dollars,
payable as follows; viz, in monthly installments of
Year $ per Year $ per month
1 $72,000.00 $6,000.00
2 73,920.00 6,160.00
3 74,880.00 6,240.00
4 75,840.00 6,320.00
5 76,800.00 6,400.00
Total $374,440.00
in advance on the first day of each calendar month during the
term. First and last month rent shall be in advance upon the
signing of this Lease.
OPTION TO RENEW: There shall be an option to renew the Lease
for an additional five years, based on the following formula.
The lease rate shall be increased by the most current
month reported figure for the Consumer Price Index, in
comparison to the CFI figure for the 48 months before. This
8I,-2:d 0S8I2b2:01 009696L4U 0DQ3d:WWJ d22:90 T002-S2-A0N
figure shall be calculated to find the percent change in the
Consumer Price Index. CPI shall be Philadelphia. Region Urban
Wage Earners. If the CPI shall be abolished then the current
method used by the US Government shall be implemented.
THE DENISE HEREIN CONTAINED is made and accepted on the
following express conditions.
1. No waste shall be committed; and at the end of the said
term the demised premises shall be delivered in as good
condition as at the commencement thereof, ordinary wear and
tear and unavoidable damage by fire, tempest and lightning
excepted.
2. The rent reserved shall be promptly paid on the several
days and times herein specified without deduction or
abatement, at the residence or principal office of Lessor.
3. If the Lessee should remove or prepare to remove, or
attempt to remove from the premises hereby leased before the
expiration of the term or at any time during the continuance
of this lease, or if the Lessee shall be in default in the
payment of any installment of rent for the period of ten
days, or should there be a default in the conditions as
herein contained, then in that event, rent for the term of
twelvemonths at the rate which it is then due and
collectable under the terms of this lease shall immediately
become due and payable and shall be collectable by distraint
or otherwise.
4. At the expiration of the term, to the extent Lessee has
not maintained the demised premises in compliance with
Paragraph 2 here of, the demised premises will be restored at
the option of the Lessor in such condition so as to comply
with the requirements of Paragraph 1, and the cost will be
treated as additional rent due and owing under the terms of
the lease.
5. A holding over by the Lessee beyond the term of this
lease shall be a renewal of the term of this lease for
another like term, and the said renewal shall be under and
subject all the provisions as contained in this agreement of
leases provided, however, that such renewal shall be at the
option of the Lessor.
6. The Lessor shall not be liable to the Lessee for any
damage which may be caused to the Lessee by failure of the
Lessor, it said failure is not due to any fault on his part,
to give possession herein demised, at the time agreed upon.
7. The Lessee shall not carry on any unlawful or immoral
business in or about the demised premises, and shall not
carry on any business which will endanger the building from
8T,£:d OsaT£72:01 009696LLTL 0303 'W08,J 42£:90 T002-S2-OON
fire or cause forfeiture of any fire insurance that the
Lessor has or may hereafter have on said building.
8. The Lessee agrees to pay all bills which may be incurred
for light, heat, or power used or consumed upon the demised
premises, and also all bills for water rent which may accrue
for water used during the term of the lease. The Lessor
shall not be responsible in any way in the event that the
supply of heat is cut off by reason of any cause beyond the
control of the Lessor. And the Lessee does hereby release
the Lessor from any damage which may result to him by reason
of the failure of the supply of heat. should the Lessee fail
to pay any bills as aforesaid, the Lessor shall have the
right to pay the same, and the amount as paid shall be
chargeable to the Lessee as additional rent. The Lessee
agrees to keep the plate glass insured at his own risk.
9. The Lessee agrees to keep the premises in a good
condition of repair. &11 refuse 91 any kind h 1 h-0 removed
f MM the g- ices At the gust 21 see @& leas% once _4
week 2r more often. if necessary. All snow shall be cleaned
off from the sidewalks and steps before it shall be frozen
and hardened. Should the Lessee fail to comply with the
provisions of, this clause of the lease, the Lessor may enter
the premises and make said repairs or remove said refuse and
do all other things as herein provided to be done by the
Lessee at the expense of the Losses, and said expense thus
incurred may also be collected as additional rent under the
lease.
10. In the event of the filing of a petition in bankruptcy,
whether voluntary or involuntary, by or against the Lessee
herein, there shall become due immediately upon the filing of
the petition, rent for twelve months, at the rate that the
rent is payable under this agreement of lease, and the Lessor
shall have the further right in said event, to forfeit and
terminate this lease. The said forfeiture to be effective by
giving notice in writing to the Lessee herein or the person
then in charge of the demised premises. Should an execution
issue against the Lessee out of any court, twelve months rent
shall thereupon become due and owing.
11. In the event that the premises occupied by the Lessee
shall during said term be destroyed by fire, thereby making
the premises untenantable and unfit for occupancy so that the
owners thereof deem it advisable to construct a new building,
the Lessor shall thereupon have the.right to cancel and
terminate this lease upon giving fifteen days notice in
writing to the Lessee herein, and the term of this lease
shall thereupon cease at the expiration of fifteen days
after the expiration of said notice. In the event however,
that the said building shall be damaged by fire, but not
destroyed, the Lessor will thereupon cause the same to be
ST/i7 .d OSBT£fi72:0i 009696LLTL 00026:WONA 4£:90 T002-1;2-(ION
repaired and restored to its former condition. Lessor is to
act with the greatest possible diligence, and if the said
fire shall have rendered the premised untenantable, payment
of rent thereunder shall be suspended from the time when the
Lessee herein shall notify the Lessor of such condition,
until such time as the building is so repaired and again
ready for occupancy. Lessee herein agrees that in the event
that the building shall be so partially destroyed by fire as
to render said repairs necessary that the said lessor shall
thereupon have the right through his servants and agents, and
that the servants and agents or any contractor employed by
the Lessor shall have the right to take possession of the
premises for the purpose of making such repairs, and the
taking of possession shall not mean eviction of the
herein and shall in no manner effect this term of lease.
12. The said Lessee hereby confesses judgement for the rent
reserved under this agreement of lease, together with an
attorney fee of five per cent for collection, and execution
may be issued thereon from time to time for any rent due and
owing under this lease, and judgment in ejectment as herein
provided may be entered concurrently therewith.
13. At the end of said term, whether the same shall be
determined by forfeiture or expiration of the term, or upon
the breach of any of the conditions of this lease, it is
agreed that an amicable action of ejectment may be entered in
the Court of Common Pleas of Cumberland County, in which the
Lessors, their heirs or assigns, shall be plaintiff, and the
Lessees, and all who come into possession during the term or
continuance of this lease or under the Lessees, shall be
defendants, that judgment may be entered thereupon in favor
of the plaintiffs, without leave of court, for the premises
above described to have the same force and effect as if a
summons in ejectment had been regularly issued, legally
served and returned and that writs of habere facias
possessione-m with clause of fi. fa. for all costs, may be
issued forthwith, waiving all errors and defects whatsoever
in entering said judgment, also waiving right of appeal, writ
of error or stay upon any writs of habere facias possessionem
which may issue upon the same.
14. And further, it is agreed and understood that Lessor,
his heirs, or assigns, may enter the premises leased during
the term, during normal business hours in the presence or
absence of Losses for the purpose of ascertaining whether the
said premises are kept in good order and repair. Further,
that the Lessor reserve the right to display a "for rent or
sale" sign upon said premises, and to show same to
prospective tenants or buyers.
25. All damages or injuries done to the said premises other
than those caused by fire or ordinary wear and tear or by the
acts or omission of the landlord shall be repaired by the
eT/S:d OSSM?8:01 00%966-)-U OM38*WOa-i d£F:90 1002-S2-)ON
Lessee herein. And the Lessee covenants and agrees to make
said repairs upon five days notice to him by the Lessor, and
if he shall neglect to make said repairs or commence to make
the same pronnptly or within ten days after said notice as
given him, the Lessor shall have the right to make said
repairs at the expense and cost to the Lessee, and the amount
thereof may be collected as additional rent accruing for the
month following the date of said repairs, and if the said
expense is made at the expiration of the terra, then the cost
so made may be collected by Lessor as an additional rent for
the use of the premises during the entire term.
16. And the said Lessee hereby accepts notice to quit,
remove from, and surrender up possession of the said demised
premises to the said Lessor, his heirs or assigns, at the
expiration of the said term, whenever it may be determined,
whether by forfeiture or otherwise, without any further
notice to the effect, all further notice being hereby waived.
And on failure to pay rent due, for the space of ten days
besides the distress, or upon breach of any other condition
of this lease the Lessee shall be a non-tenant, subject to
dispossession by the said Lessor and the said Lessor may
re-enter the premises and dispossess the Lessee without
thereby becoming a trespasser.
17. No showcase, sign or hanging or protruding sign or
permanent obstruction of any kind shall be kept or maintained
by the tenant on the reservation or sidewalk in front of the
demised premises, said space to be used only for purpose of
ingress and egress.
18. Losses will bear, pay and discharge when and as the same
becomes due and payable all judgment and lawful claims for
damage or otherwise against Lessor arising from its use or
occupancy of said leased premises or the sidewalk in front
and side of said premises, and will assume the burden and
expense of defending all such suits, whether brought before
the expiration of this lease and will protest, indemnify and
save harmless the said party of first part, his agents,
servants, employees and public at large by reason of or on
account of the use of misuse of the premises hereby leased or
the sidewalk in front of the said premises, or any part
thereof, due to negligence of the Lessee or his agents.
3
19. And in oonsideration of securing the within lease at the
above stated rent, said Lessee does hereby release and
discharge s4id Lessor, his heirs or assigns, from any and all
liability for damage that may result from the bursting,
stoppage and leakage of any water pipe, gas pipe, sewer,
basin, water-closet, steam pipe and drain, and from all
liability for any and all damage caused by the water, gas,
steam„ waste, and contents of said water pipes, gas pipes,
steam pipes, sewers, basins, water-closets and drains. All
mechanical and electrical equipment to be delivered in good
working order.
ST/9:d OS8S£b2!01 003696UTL ODG3N:WD8d dK:90 1002-S2-f10N
20. It is expressly understood by the parties that the whole
agreement is embodied.in this agreement and that no part
or item is omitted.
21. The Lessee does hereby waive any and all demands for
payment of the rent herein provided for, either on the day
due or on any other day, either on the land itself or in any
other place, and agrees that such demand shall not be a
condition of re-entry or of recovery of possession without
legal process or by means of any action or proceedings
whatsoever.
22. Rents are to be delivered to Lessorre office by the 1st
of each month. It isagreed that there will be a penalty of
$200.00 for each month that rental payments are not delivered
on time.
23. All material and equipment shall maintain 18 inches
clearance to any walls, so as to avoid accidential damage.
24. Should there be $ Municipal or other Governmental
assessment Lessee shall pay their percentage of such increase
based on the square foot percentage leased.
25. Lessee shall pay all taxes, Municipal or other
dovernmental7 assessment and insurance based on the square
footage of the building leased.
26. Should Lessee engage in or carry on any activity to
cause Lessors insurance to increase Lessee shall pay such
cost.
27. Lessee shall provide at Certificate of insurance showing
that his property is insured and that he is providing some
form of liability insurance. Also Lessee shall provide a
Waiver of Subrogation on the Certificate.
28. Lessee shall be responsible for snow and ice removal
from the sidewalk and steps. Lessor shall arrange to have
snow plowed, when snowfall is over 211, and Lessee shall pay o
its percentage of costs based on the square feet leased.
29. Lessor shall be responsible for lawn and landscaping
maintenance and Lessee shall pay its percentage of such
expenses based on the square feet leased.
30. Lessee shall be provided with 12- 404 watt hi-pressure
Medal Halide lights in the warehouse area, and one receptacle
at the electrical panel. Lessee shall provide all additional
lighting, receptacles etc.
31. Lessee shall pay for any damage caused by chemical
reaction, erosion or corrosion done to the building from
Lesseers business operations..
BT/L:d 0S8S£73101 00969644IL 09038:W02dd dK:90 7002-92-r)ON
32. Lessee shall be responsible for all maintenance on the
overhead doors and interior of the building. Lessee shall be
responsible for exterior maintenance of the building and
grounds based on its percentage leased. Lessee shall not be
responsible for the stsuctura7 integrity of the building.
32.8 Lessor shall be responsible for the maintenance of the
stone access area for the truck traffic, and the maintenance
of the paved parking area, Lessee shall not be billed for
these two items during the first five year lease period.
Excluded from the above shall be line painting and cleaning
of the paved parking area.
33. Lessee shall be responsible for all shipping debris and
any other waste or refuse on a daily basis if necessary.
Witn s the ands and seals of the parties and year
fir abo a ten.
A d Hills, in art E. T ehl
Alad n Mid-Atlan is
**34. Lessee shall have the right to sublease said premises
with Lessor approval. Such approval shall not be unreasonably
withheld.
STf9sd OSSTF-b2:01 009696LLTL ODG-:3:WOdd dSS::90 T002-S2-I)ON
EXHIBIT B
-A A Id
rvev
MOHA K
INDUSTRIES. INC.
July 7, 2006
DAWN H. KNOWLES
Attomey
(800) 241-4494 - ext. 42667
(706) 629-7721 - 42667
Facsimile (706) 624-2483
E-Malt dawn_ uxWes0mohawkind.com
Mr. Robert E. Diehl
Redco
500 Redco Drive
Enola, PA 17025
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Re: Suites 100-105, 13 Brenneman Circle, Mechanicsburg, PA
Dear Mr. Diehl:
Please be advised that Mohawk, the current occupant of the above-referenced property
shall vacate said premises, effective Saturday, September 30, 2006.
. Additionally, Mohawk hereby rescinds any offers made to Redco or you individually to
commence with another [ease term.
Please feel free to contact me if you have any questions concerning this correspondence.
Very truly yours,
CC: Tom Withorn, Jeff Edwards
4a'4a //, ?(r&?
Dawn H. Knowles
160 South Industrial Blvd., S.W. • P.O. Box 12069 * Calhoun, GA 30703-7002 • (706) 629-7721 • (800) 241-4494
EXHIBIT C
REDCQ INVOICE
Robert E Diehl
500 REDCO Drive
Enota, PA 17025
Phase 717-570500 Fax 717-796-9600
REDCO 1 *msn. com
To Mr. Jeff Edwards
Mohawk-Aladdin
1910 Park 100 Drive
Glenn Burnie, MD 21061
Customer ID Mohawk-Ataddin
SHIP
TO Same
INVOICE # 13-001-
DATE: FEBRUARY 24, 2008
VENDOR PERCENTAGE DUE DATE
RATE
85.71428574E Upon Receipt
CAMS Jan 01, 2007 to May 18, 2007
QTY
Diltsbur8
septic
A Monko
A Monko
PPL
Insurance
School Tax
County Tax
DATE
5-17-2007
Various
Various
Monthly
Credit
Credit
138 days
Pump Septic
Snow Removal
Mow-Trim
Electricity
Insurance
Taxes
Taxes
DESCRIPTION
UNIT PRICE
313.00
705.00
2
106.00
385.53
(277.79)
(538.93)
a
563.23 €
TOTAL DISCOUNT
Make checks payable to ROBERT E DIEHL
THANK YOU FOR YOUR BUSINESSI
LINE TOTAL
268.29
604.29
90.86
330.45
(238.11)
(461.94)
482.77
1076.61
SUBTOTAL
SALES TAX
TOTAL ; 1076.61
VERIFICATION
The foregoing Complaint is based upon information which has been gathered by my counsel
in the preparation of the lawsuit. The language of the document is that of counsel and not my own.
I have read the document and to the extent that it is based upon information which I have given to
my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent
that the content of the document is that of counsel, I have relied upon counsel in making this
verification.
This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904
relating to unsworn falsification to authorities, which provides that if I make knowingly false
averments, I may be subject to criminal penalties.
o ert E. D'
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. NO.
CIVIL ACTION - LAW
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
NOTICES IN CONNECTION WITH JUDGMENTS BY CONFESSION
REQUIRED BY 42 PA. C.S.A. §2737.1. (Act 105 of 2000)
To: Mohawk Carpet Distribution, L.P., as successor-in-interest to Aladdin Mills, Inc.
PURSUANT TO 42 PA. C.S.A. SECTION 2737. 1, 1F YOU HAVE BEEN INCORRECTLY
IDENTIFIED AND HAD A CONFESSION OR JUDGMENT ENTERED AGAINST YOU,
YOU ARE ENTITLED TO COSTS AND REASONABLE ATTORNEY FEES AS
DETERMINED BY THE COURT.
INSTRUCTIONS REGARDING THE PROCEDURE TO STRIKE THE CONFESSED
JUDGMENT ARE SET FORTH BELOW:
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 not
stayed execution despite the timely filing of a petition for relief from the judgment and the
presentation of prima facie evidence of a defense; and
(ii) as provided by 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 ofproceedings. After being served with a copy of the petition the plaintiff shall file
an answer on or before the return 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.
(e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions,
admissions and other evidence. The court for cause shown may stay proceedings on the petition
insofar as it seeks to open the judgment pending disposition of the application to strike off the
judgment. If evidence is produced which in a jury trial would require the issues to be submitted to
the jury the court shall open the judgment.
(f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings
to strike off or open the judgment are pending.
(g) (1) A judgment shall not be stricken or opened because of a creditor's failure to provide a
debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to
strike a judgment or regarding any rights available to an incorrectly identified debtor.
(2) Subdivision (g)(1) shall apply to (1) judgments entered prior to the effective date of
subdivision (g) which have not been stricken or opened as of the effective date and (2) judgments
entered on or after the effective date.
You may have other rights available to you other than as set forth in this notice. You
should take this paper to your lawyer at once. If you do not have a lawyer, go to or telephone
the office set forth below. This office can provide you with information about hiring a lawyer.
If you cannot afford to hire a lawyer, this office may be able to provide you with
information about agencies that may offer legal services to eligible persons at a reduced fee or
no fee.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania
(717) 249-3166
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL,
V.
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
NO.
CIVIL ACTION - LAW
CERTIFICATE OF RESIDENCE
We hereby certify that the last known addresses of the Defendant is:
Mohawk Carpet Distribution, L.P.
c/o Dawn Knowles, Esquire
160 South Industrial Blvd., S.W.
P.O. Box 12069
Calhoun, GA 30703-7002
The address of Plaintiff is: 14 Nancy Lane, Enola, PA 17025.
MARTSON LAW OFFICES
By: - z ,; '?
Seth T. Mosebey, Esquire
Date: Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. NO.
CIVIL ACTION - LAW
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
NOTICE UNDER RULE 29581 OF
JUDGMENT AND EXECUTION THEREON
Notice of Defendants' Rights
TO: Mohawk Carpet Distribution, L.P., as successor-in-interest to Aladdin Mills, Inc.
A judgment in the amount of $87,206.77 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 (3 0) 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. THIS OFFICE CAN
PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania
(717) 249-3166
MARTSON LAW OFFICES
By J, P LO- VA'
Iva V. Otto III, Esquir
I.D. No. 27763
Seth T. Mosebey, Esquire
Attorney I.D. No. 203046
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
Date: 0041 D
No V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. NO.
CIVIL ACTION - LAW
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
AFFIDAVIT
I, Seth T. Mosebey, Esquire, attorney for Plaintiff, hereby certify, that to the best of my
knowledge, that the Confession of Judgment for Money attached is not being entered against a
natural person in connection with a consumer credit transaction.
Seth T. Mosebey, Esquire
Sworn to and subscribed
before me thi4gxlay of June, 2009.
N ublic
COMMONWEALTH OF PENNSYLVANIA
NotwWl Seel
MWY M. Prim NOWY Pdit
Come au% 0wrberw d o o v
* OorrrMse w E*m Aug.1a 2011
Member. PennWvanta 46004NoM M NOledoi
Iva V. Otto III, Esquire
I.D. No. 27763
Seth T. Mosebey, Esquire
I.D. No. 203046
MARTSON DEARDORFF WILLIAMS OTTO GI LROY & FALLER
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Plaintiff
ROBERT E. DIEHL,
V.
MOHAWK CARPET DISTRIBUTION,
L.P., as successor-in-interest to ALADDIN
MILLS, INC.,
Defendant
: IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
NO.
CIVIL ACTION - LAW
AFFTDAVIT AS TO MILITARY SERVICE
COMMONWEALTH OF PENNSYLVANIA )
:SS.
COUNTY OF CUMBERLAND
Seth T. Mosebey, Esquire, being duly sworn according to law, deposes and says that he has
authority to make this affidavit on behalf of his client, and to the best of his knowledge, information
and belief, the Defendant Mohawk Carpet Distribution, L.P., as successor-in-interest to Aladdin
Mills, Inc., is an entity and, therefore, is not in the military service of the United States of America,
that he has knowledge that the said Defendant is now located at: 160 South Industrial Blvd., S.W.,
P.O. Box 12069, Calhoun, GA 30703-7002.
Seth T. Mosebey, Esqu e
Sworn t and subscribed before me
this 1 day of June, 2009.
L r 0 -
N ublic
COMMONWEALTH OF PENNSYL.V
NoWft Seed
C? 8Moro. QX"1Wc1WW Gm*
My Conrl+l "E*kles Aug. A Mi 1
M?mbw. PSnesyivarh& A"oWdift" of NOWWO
CERTIFICATE QF SERVICE
I, Mary M. Price, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller,
hereby certify that a copy of the foregoing Complaint for Confession of Judgment was served this
date by depositing same in the Post Office at Carlisle, PA, first class certified mail, return receipt
requested, postage prepaid, addressed as follows:
Mohawk Carpet Distribution, L.P.
c% Sawn Knowles, Esquire
160 South Industrial Blvd., S.W.
P.O. Box 12069
Calhoun, GA 30703-7002
MA.RTSON LAW OFFICES
B r
Y
M kEas ce
TeghStreet
Carlisle, PA 17013
(717) 243-3341
Dated: Ofp D 9
Robert E. Diehl
500 Redco Drive, bnola, PA 17025
Redco 766-2995
Mobile 574-0500
COMMERCIAL LEASE
THIS AaRBPMENT of Lease made this 06 day of June
A.D.1995. Between Robert E. Diehl of 500 RLDCO Dry, Enola,
PA7025 (717-766-2995) 'Lessor and Aladdin Mills, Inc., of
/} .Q G.3b -1 . (:?',4.
a C-45-.& gas 4 • Corporation authorized
state of Pennsyania.
n me
WITNESSETR, that the Lessor, in consideration of the rents
and covenants hereinafter mentioned, do demise and lease unto
the said Lessee, to be used as office warehouse the premises
situate in the County of Cumberland and State of PA described
as follows, to wit:
Suites 100 thru 105, 13 Brenneman Circle,
Mechanicsburg, PA 17055. Containing 19,200 Sq.. ft.
nominal,heated warehouse space and one powder room. outside
parking for vehicles in front and rear of the leased area.
TO HAVE AND TO HOLD UNTO THE LESSEE, subject to the
conditions of this agreement, for the term beginning on the
first day of August, 1995 and ending on the Thirty First day
of July, 2000. Ica 5
IN CONSIDERATION OF WHICH the said Lessee agrees that they
will pay to the Lessor for the use of said premises, the sum
of Three Hundred Seventy Four Thousand Four Hundred Dollars,
payable as follows; viz, in monthly installments of
Year $ per Year $ per month
1 $72,000.00 $6,000.00
2 73,920.00 6,160.00
3 74,880.00 6,240.00
4 75,840.00 6,320.00
5 76,800.00 6,400.00
Total $374,440.00
in advance on the first day of each calendar month during the
term. First and last month rent shall be in advance upon the
signing of this Lease.
OPTION TO RENEW: There shall be an option to renew the Lease
for an additional five years, based on the following formula.
The lease rate shall be increased by the most current
month reported figure for the Consumer Price Index, in
comparison to the CPI figure for the 48 months before. This
8T/2:d 0S8TF-b2:01 00969UUTL 03036:W0dd d22:90 T002-SC-AON
figure shall be calculated to find the percent change in the
Consumer Price Index. CPI shall be Philadelphia Region Urban
Wage Earners. If the CPI shall be abolished then the current
method used by the US Government shall be implemented.
THE DEXIBE HERNIN CONTAINED is made and accepted on the
following express conditions.
1. No waste shall be committed; and at the end of the said
term the demised premises shall be delivered in as good
condition as at the commencement thereof, ordinary wear and
tear and unavoidable damage by fire, tempest and lightning
excepted.
2. The rent reserved shall be promptly paid on the several
days and times herein specified without deduction or
abatement, at the residence or principal office of Lessor.
3. If the Lessee should remove or prepare to remove, or
attempt to remove from the premises hereby leased before the
expiration of the term or at any time during the continuance
of this lease, or if the Lessee shall be in default in the
payment of any installment of rent for the period of ten
days, or should there be a default in the conditions as
herein contained, then in that event, rent for the term of
twelvemonths at the-rate which it is then due and
collectable under the terms of this lease shall immediately
become due and payable and shall be collectable by distraint
or otherwise.
4. At the expiration of the term, to the extent Lessee has
not maintained the demised premises in compliance with
Paragraph I here of, the demised premises will be restored at
the option of the Lessor in such condition so as to comply
with the requirements of Paragraph 1, and the cost will be
treated as additional rent due and owing under the terms of
the lease.
5. A holding over by the Lessee beyond the term of this
lease shall be a renewal of the term of this lease for
another like term, and the said renewal shall be under and
subject all the provisions as contained in this agreement of
leases provided, however, that such renewal shall be at the
option of the Lessor.
6. The Lessor shall not be liable to the Lessee for any
damage which may be caused to the Lessee by failure of the
Lessor, if said failure is not due to any fault on his part,
to give possession herein demised, at the time agreed upon.
7. The Lessee shall not carry on any unlawful or immoral
business in or about the demised premises, and shall not
carry on any business which will endanger the building from
BT/E:d OSBM72:01 009696LLTL OZ)03d:WOa.J 422:90 T002-S2-()ON
fire or cause forfeiture of any fire insurance that the
Lessor has or may hereafter have on said building.
6. The Lessee agrees to pay all bills which may be incurred
for light, heat, or power used or consumed upon the demised
premises, and also all bills for water rent which may accrue
for water used during the term of the lease. The Lessor
shall not be responsible in any way in the event that the
supply of heat is cut off by reason of any cause beyond the
control of the Lessor. And the Lessee does hereby release
the Lessor from any damage which may result to him by reason
of the failure of the supply of heat. should the Lessee fail
to pay any bills as aforesaid, the Lessor shall have the
right to pay the same, and the amount as paid shall be
chargeable to the Lessee as additional rent. The Lessee
agrees to keep the plate glass insured at his own risk.
91 The Losses agrees to keep the premises in a good
condition of repair. Al refuse gt Any kin shall be removed
from tbA ises at the ,V ? gf the Lessee at least once _4
week 2r- more often, if necessary. All snow shall be cleaned
off from the sidewalks and steps before it shall be frozen
and hardened. Should the Lessee fail to comply with the
provisions of 'this, clause of the lease, the Lessor may enter
the premises and make said repairs or remove said refuse and
do all other things as herein provided to be done by the
Lessee at the expense of the Lessee, and said expense thus
incurred may also be collected as additional rent under the
lease.
10. In the event of the filing of a petition in bankruptcy,
whether voluntary or involuntary, by or against the Lessee
herein, there shall become due immediately upon the filing of
the petition, rent for twelve months, at the rate that the
rent is payable under this agreement of lease, and the Lessor
shall have the further right in said event, to forfeit and
terminate this lease. The said forfeiture to be effective by
giving notice in writing to the Lessee herein or the person
then in charge of the demised premises. Should an execution
issue against the Lessee out of any court, twelve months rent
shall thereupon become due and owing.
11. In the event that the premises occupied by the Lessee
shall during said term be destroyed by fire, thereby making
the premises untenantable and unfit for occupancy so that the
owners thereof deem it advisable to construct a new building,
the Lessor shall thereupon have the.right to cancel and
terminate this lease upon giving fifteen days notice in
writing to the Lessee herein, and the term of this lease
shall thereupon cease at the expiration of fifteen days
after the expiration of said notice. in the event however,
that the said building shall be damaged by fire, but not
destroyed, the Lessor will thereupon cause the same to be
8lib:d OSBM72:01 009696ZZTL OZ)MRJ:W%fA c!££:90 T002-S2-f10N
repaired and restored to its former condition. Lessor is to
act with the greatest possible diligence, and if the said
fire shall have rendered the premised untenantable, payment
of rent thereunder shall be suspended from the time when the
Lessee herein shall notify the Lessor of such condition,
until such time as the building is so repaired and again
ready for occupancy. Lessee herein agrees that in the event
that the building shall be so partially destroyed by fire as
to render said repairs necessary that the said lessor shall
thereupon have the right through his servants and agents, and
that the servants and agents or any contractor employed by
the Lessor shall have the right to take possession of the
premises for the purpose of making such repairs, and the
taking of possession shall not mean eviction of the
herein and shall in no manner effect this term of lease.
12. The said Lessee hereby confesses judgement for the rent
reserved under this agreement of lease, together with an
attorney fee of five per cent for collection, and execution
may be issued thereon from time to time for any rent due and
owin under this lease, and judgment in ejectment as herein
provided may be entered concurrently therewith.
13. At the end of said term, whether the same shall be
determined by forfeiture or expi9ration of the term, or upon
the breach of any of the conditions of this lease, it is
agreed that an amicable action of ejectment may be entered in
the Court of Common Pleas of Cumberland county, in which the
Lessors, their heirs or assigns, shall be plaintiff, and the
Lessees, and all who come into possession during the term or
continuance of this lease or under the Lessees, shall be
defendants, that judgment may be entered thereupon in favor
of the plaintiffs, without leave of court, for the premises
above described to have the same force and effect as if a
summons in ejectment had been regularly issued, legally
served and returned and that writs of habere €acias
vossessionem with clause of fi. fa. for all, costs, may be
issued forthwith, waiving all errors and defects whatsoever
in entering said judgment, also waiving right of appeal, writ
of error or stay upon any writs of habere €acias possessionem
which may issue upon the same.
14. And further, it is agreed and understood that Lessor,
his heirs, or assigns, may enter the premises leased during
the term, during normal business hours in the presence or
absence of Lessee for the purpose of ascertaining whether the
said premises are kept in good order and repair. Further,
that the Lessor reserve the right to display a "for rent or
sale" sign upon said premises, and to show same to
prospective tenants or buyers.
25_ All damages or injuries done to the said premises other
than those caused by fire or ordinary wear and tear or by the
acts or omission of the landlord shall be repaired by the
eT/S-d 0S9T£tr2:0i 00969Sa U 0003b:WONd 822:90 T002-92-OON
Lessee herein. And the Lessee covenants and agrees to make
said repairs upon five days notice to him by the Lessor, and
if he shall neglect to make said repairs or commence to make
the same promptly or within ten days after said notice as
given him, the Lessor shall have the right to make said
repairs at the expense and cost to the Lessee, and the amount
thereof may be collected as additional rent accruing for the
month following the date of said repairs, and if the said
expense is made at the expiration of the term, then the cost
so made may be collected by Lessor as an additional rent for
the use of the promises during the entire term.
16. And the said Lessee hereby accepts notice to quit,
remove from, and surrender up possession of the said demised
premises to the said Lessor, his heirs or assigns, at the
expiration of the said term, whenever it may be determined,
whether by forfeiture or otherwise, without any further
notice to the effect, all further notice being hereby waived.
And on failure to pay rent due, for the space of ten days
besides the distress, or upon breach of any other condition
of this lease the Lessee shall be a non-tenant, subject to
dispossession by the said Lessor and the said Lessor may
re-enter the premises and dispossess the Lessee without
thereby becoming a trespasser.
17. No showcase, sign or hanging or protruding sign or
permanent obstruction of any kind shall be kept or maintained
by the tenant on the reservation or sidewalk in front of the
demised premises, said space to be used only for purpose of
ingress and egress.
18. Lessee will bear, pay and discharge when and as the same
becomes due and payable all judgment and lawful claims for
damage or otherwise against Lessor arising from its use or
occupancy of said leased premises or the sidewalk in front
and side of said premises, and will assume the burden and
expense of defending all such suits, whether brought before
the expiration of this lease and will protest, indemnify and
save harmless the said party of first part, his agents,
servants, employees and public at large by reason of or on
account of the use of misuse of the premises hereby leased or
the sidewalk in front of the said premises, or any part
thereof, duo to negligence of the Lessee or his agents.
i
19. And iconsideration of securing the within lease at the
above stated rent, said Lessee does hereby release and
discharge said Lessor, his heirs or assigns, from any and all
liability for damage that may result from the bursting,
stoppage and leakage of any water pipe, gas pipe, sewer,
basin, water-closet, steam pipe and drain, and from all
liability for any and all damage caused by the water, gas,
steam„ waste, and contents of said water pipes, gas pipes,
steam pipes, sewers, basins, water-closets and drains. All
mechanical and electrical equipment to be delivered in good
working order.
8T/9-d 0S8t072:01 009696LLTL O9098:WOa3 dVE:90 1002-S2-nON
20. It is expressly understood by the parties that the whole
agreement is embodied in this agreement and that no part
or item is omitted.
21. The Lessee does hereby waive any and all demands for
payment of the rent herein provided for, either on the day
due or on any other day, either on the land itself or in any
other place, and agreFs that such demand shall not be a
condition of re-entry-or of recovery of possession without
legal process or by means of any action or proceedings
whatsoever.
22. Rents are to be delivered to Lessores office by the 1st
of each month. It isagreed that there will be a penalty of
$200.00 for each month that rental payments are not delivered
on time.
23. All material and equipment shall maintain 18 inches
clearance to any walls, so as to avoid accidential damage.
24. Should there be a Municipal or other Governmental
assessment Lessee shall pay their percentage of such increase
based on the square foot percentage leased.
i
25. Lessee shall pay all taxes, Municipal or other
dovernmental' assessment and insurance based on the square
footage of the building leased.
26. Should Lessee engage in or carry on any activity to
cause Lessors insurance to increase Lessee shall pay such
cost.
27. Lessee shall provide a Certificate of insurance showing
that his property is insured and that he is providing some
form of liability insurance. Also Lessee shall provide a
Waiver of subrogation on the Certificate.
28. Lessee shall be responsible for snow and ice removal
from the sidewalk and steps. Lessor shall arrange to have
snow plowed, when snowfall is over 211, and Lessee shall pay o
its percentage of costs based on the square feet leased.
29. Lessor shall be responsible for lawn and landscaping
maintenance and Lessee shall pay its percentage of such
expenses based on the square feet leased.
30. Lessee shall be provided with 12- 400 watt hi-pressure
Medal Halide lights in the warehouse area, and one receptacle
at the electrical panel. Lessee shall provide all additional
lighting, receptacles etc.
31. Lessee shall pay for any damage caused by chemical
reaction, erosion or corrosion done to the building from
Lessee+s business operations.,,
8S/L:d 0SBM72:01 00%96)-41L- ODQ3N:W()83 ct,2,90 2003-S2-00N
32. Lessee shall be responsible for all maintenance on the
overhead doors and interior of the building. Lessee shall be
responsible for exterior maintenance of the building and
grounds based on its percentage leased. Lessee shall not be
responsible for the steuctural integrity of the buildin JJ""
32.a Lessor shall be responsible for the maintenance oI the
stone access area for the truck traffic, and the maintenance
of the paved parking area, Lessee shall not be billed for
these two items during the first five year lease period.
Excluded from the above shall be line painting and cleaning
of the paved parking area.
33. Losses shall be responsible for all shipping debris and
any other waste or refuse on a daily basis if necessary.
**
Witn s the ands and seals of the parties t1 and year
fir abo a ten.
4AcTdUi 1 s, in ert E.r ehl
Alad n Mid-Atlan is
attest:
**34. Lessee shall have the right to sublease said premises
with Lessor approval. Such approval shall not be unreasonably
withheld_
5
8T/8:d OSBM72 :01 009696LLTL 0DCG?1:W0?Ad dSE:90 T002-S2-()ON
From:
07/21/2009 11:59 1200 P.027/034
et &
MOHAWK
7mmy 3,2005
Ak Aobwe E. V4
REDGO
500 Redo* VA"
Ewlk #A 171225
DMr Mr.1 AN:
As. Pffow d smwd^ we at l inh o: k wild lft b Qootbue.o* MMA At 13 HMO== Cinol%
Abu PA fbr atom of.l a tD 24 mowlw6 w hk hww wmU be itso $rorsbb to ym
Ittt&.is.A9094 ble, PWW 1 !d.m upWany wommy pmMwm.
Now*
JBIM
1910 PWk 199 Miv* lea 11th. MD 2tQbl bp0: AIS 1514
RECEIVED TIME JUL.21. 11:54AM
. From:
07/21/2009 11:59 #200 P.026/034
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RECEIVED TIME JU1,21, 11:54AM
. From:
07/21/2009 11:59 #200 P.024/034
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we Waft 4buawbs 1-"
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RECEIVED TIME JU1.21. 11:54AM
From:, 07/21/2009 11:59 1200 P.025/034
11"Nal Ofaw p said aft hwe ben h.k Iry."W dwkg, I to pWft qA@w kaa ie am
?wulMoNw ?irletYo?eat,.s Ihis ie a a?,y:pohlaa. Y inoo??aalei s e?le ya?s+rv q
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?sasRsr beery amoMiiwsd 1od dlaa? tpr. I tis1?N9 i?t diick.oogaws !+i t6r the.
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oW .die sarhd! eaA yoMr t dab adek NOtN vsi esp.
l used • 4a 4i.QV emt ape 1NaMwk:AlWdhi *M"-- asWt 011406, will be &ft
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?;.r I rt o7'rt b latirlr ? ados cars?sq w1te.
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RECEIVED TIME JUL.21, 11:54AM
From:
07/21/2009 12:00 #200 P.028/034
Robert .E. Diehl
500Nedco Drive, &dt PA IM25
Rsdco 766-7995
MOM 574-0500
8/92005
Mcbawk/Aladdia ladusttios
1.910 Pads 100 Ddve
Man, Hurnis, MD 21061
Attu Nk. Jeff F.dwwds
Rae: Caosumw pdm Index.
Per Dense whb AladdnWMobaw k dia.radd ate aLsl1 be increased by the change in the CPI from
the Pwvious 48 mootbs. Don't know why 48 maathe is in the lease, tbere am 60 mwft in five years. The
pen atagedange for above perlod.is 10.784313790
The. chaage. hom the 1999.20M tale of S6A400 Was 9.9310997% btiogiog the 2000 -2005 retie to
$6,993.901iar:momb. The eats paid by Aladd Alopawk was $6.54623, bd w dot by $499.09 times 60
moenhs eq" 526;945A0-
The.moatbly rase fbr 2005 b $7,75034. Tho rat ferJpty sad August. 2005 bas no boat paid,
6kis3s.yow notice of rao paymouL Paagraph 22 of the:AladAwWob wk calla fbr a Panay of$200;0A per
month ranW.psyme is area Pot ddive and on tima
Ibis is also your notice ofdamem to dw.premises, five days waittan w6ce is required per
paragraph 15.
I WU1 Wised a1e.. ages will be
$aU?? binding aStWnantft?omAledditi/Mobawikffiat toea verdam
e of by Aladdia/hiobgwL I am thin king a.$oad may liave to be posted 10. i .all damages WM
retoril nepdred I met wiihR}pt==.MWpl4y about a weeds or so ap snd over the cxknt of
q w .During nay VJ* I foupdthat.a foddM driver bad mpsty, w id& the Past week, run the
aaonasy am tms weeny no acted od Phok,.a beck delver Lit a omen to block protectiog an
ah=ioum l4ddi!lramp ou the buWiag neon to yaum 11is coused no damage to my egaipamw buy-it had
to cause domage.10 the $+oa .of.ane•of your teucb,1he block wa j&x about 1600 pounds.
Sp,: o+?(Pr?,
RECEIVED TIME JUL,21, 11:54AM
Frog :
07/21/2009 12:00 #200 P.029/034
MAY I mat with It tea[ oo r. I wo*ro4 with buildin4.am of my.Wl blp in Silver
SRiOS I Pmt FvAo*y: We we deciding Aw would by an a ad" waYloWe in" .=1d
oQW& well im om ahot.
Thmk YOu for Your inuhedlate attertion on the above.mattm -
Per *:latter to AWdbdMdm* on &9,03.pieeae ft-mad the lft`pprepo*, -As= on
to reavlve the above issues I will
write the wftmdcg AVN mt 'Mm is raod hpdaW 10901 WOWiAg that
mutt l?e:put it airy mktaos' Gent aad Ivvill writet;
. _ Ii6ohwkC?t9owea?.trA?d
RECEIVED TIME JUL.21. 11:54AM
C?
From:
07/21/2009 12:00 #200 P.031/034
ewov
MOHAWK
4NOUSTRIES.INC.
July 7, 2006
DAWN H. KNOWLES
AtIbmey
Mr. Robert E. Diehl
Redco
500 Redco Drive
Enola, PA 17025
VIA. CERTIFIED MAIL
RETURN RECEIPT REQUESTPD
(800) 241-4494 - ext. 42ee7
(706) 629-7721 - 42687
Facstnle(70e)624.2483
E-Mal; dawn_Wwwles0m0h4tWnd.oom
Re; Suites 100-105, 13 Br`tArmum Circle, Mechanicsburg, PA
Dear Mr. Diehl:
Please be advised that Mohawk, the cutreiit Occupant of the above-referenoed property
shall vacate said premises, effective Saturday, September 30, 2006.
Additionally, Mohawk hereby rescinds PRY Offers.Made to Redco or You `indiv dwWy to
commence with another lease term..
Please feel free to contact we if you have anyquestions conmaitng this correspondence.
Very truly yours,.
CC: Tom Withorn, Jeff Edwards
Dawn H. Knowles
160 South InduWal .Blvd., S.W. - P.O. Box 12W,, Cathow, GA 30703-7002 - (706) 829-7721 - (800) 241-4MM
RECEIVED TIME JUL.21. 11:54AM
CAF T-':
2CC9 WUL 23 F 3- u 3