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HomeMy WebLinkAbout08-4495INTEGRITY BANK, Plaintiff, V. FREDERICK C. MILLER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA :NO. 08 - L1495 lGrr. CIVIL ACTION - LAW CONFESSION OF JUDGMENT Pursuant to the authority contained in the Note and Change in Terms Agreement, attached as Exhibit A to the Complaint filed in the above captioned case, we appear for Frederick C. Miller and confess judgment in favor of Integrity Bank against her as follows: Principal: $ 9,833.08 Accrued Interest: 0.00 Attorney Fees (10% commission): 983.30 Total: $ 10,816.38* *along interest accruing at New York Prime + 1% per annum from and following July 21, 2008 until paid in full. Date: July 25, 2008 McNEES WALLACE & NURICK LLC By -?? Clayton W. vidson PA Attorney I.D. No. 79139 McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 260-1678 (Direct Fax) (717) 232-8000 (Phone) cdavidsona,mwn.com Attorneys for Plaintiff, Integrity Bank Clayton W. Davidson PA Attorney I.D. No. 79139 McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 260-1678 (Direct Fax) (717) 232-8000 (Phone) cdavidson(4),mwn.com Attorneys for Integrity Bank INTEGRITY BANK, Plaintiff, V. FREDERICK C. MILLER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION -LAW COMPLAINT FOR CONFESSION OF JUDGMENT Integrity Bank, by and through its undersigned counsel, hereby files this Complaint for Confession of Judgment pursuant to Pa.R.C.P. No. 2951(b) and in support thereof avers the following: 1. Plaintiff, Integrity Bank, is a Pennsylvania banking institution doing business at 3345 Market Street, Camp Hill, Pennsylvania, 17011. 2. Defendant, Frederick C. Miller ("Miller"), is an adult individual last known residing at 13 Mount Allen Drive, Cumberland County, Mechanicsburg, Pennsylvania, 17055. 3. On December 20, 2007, Integrity Bank loaned Miller the sum of $12,000.00 (the "Loan") for a commercial purpose as evidenced by a promissory note (the "Note") executed by Miller that same day along with a change in terms agreement (the "Change in Terms Agreement") which changed, among other things, the maturity date of the Loan to May 20, 2008. Attached hereto as Exhibit A and incorporated herein by reference are true and correct copies of the Note and Change in Terms Agreement. 4. Miller has defaulted under the Note and the Change in Terms Agreement (collectively the "Note") by failing to pay the Loan in full on May 20, 2008. 5. All amounts due and owing under the Note have been accelerated as a result of the Note maturing on May 20, 2008. 6. The total sums due and owing under the Note as of July 21, 2008 are itemized as follows: Principal: $ 9,833.08 Accrued Interest: 0.00 Attorney Fees (10% commission): 983.30 Total: $ 10,816.38* *along interest accruing at New York Prime + 1% per annum from and following July 21, 2008 until paid in full. 7. All conditions precedent have been satisfied to allow Integrity Bank to confess judgment against Miller under the Note and Miller has no right to cure his payment defaults under the Note. 8. Integrity Bank is the holder of the Note. 9. The Note was executed and delivered in connection with a commercial transaction and judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 10. Integrity Bank will only seek its reasonable attorney's for costs of collection in this matter and is not seeking a windfall. The 10% attorney's fee commission included in the confessed judgment is authorized under the Note and merely being used to calculate a sum certain for purposes of confessing judgment. WHEREFORE, Integrity Bank, hereby requests this Court to enter judgment by confession against Frederick C. Miller in the amount of $10,816.38, along with interest accruing at New York Prime + 1% from and following July 21, 2008, until paid in full. Respectfully submitted, McNEES WALLACE & NURICK LLC Date: July 25, 2008 By 2/A17?- Clayton W. David n PA Attorney I.D. No. 79139 McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 260-1678 (Direct Fax) (717) 232-8000 (Phone) cdavidson(a),mwn.com Attorneys for Plaintiff, Integrity Bank VERIFICATION I, Robert K. Day, Executive Vice President of Integrity Bank, verify that I am authorized to make this verification on behalf of Integrity Bank, and that the facts contained in the foregoing Complaint for Confession of Judgment are true and correct to the best of my knowledge, information and belief and that the same are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Robert K. Day PROMISSORY NOTE . ,...„A:.:...; :,.? .....:.... ....ter 110:11!N I gill, •:. fit. r+ t \S.'• at : ,? : .?YjY{'•:?;:i}ii3.tiiK:}: :,:?: •?i?•'}`'r};}7,•''• ,l_1nv;Fni:':. , rrr,:jfxw?t?is!;N^::• References in the boxes above are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing "***" has been omitted due to text lenath limitations. Borrower: FREDERICK C MILLER ( tender: Integrity Bank 13 MOUNT ALLEN DR Camp Hill Office MECHANICSBURG, PA 17056 3345 Market Street Camp Hill, PA 17011 (717) 920-4900 Principal Amount: $12,000.00 Initial Rate: 8.250% Date of Note: December 20, 2007 PROMISE TO PAY. FREDERICK C MILLER ("Borrower") promises to pay to Integrity Bank ("Lender"), or order, In lawful money of the United States of America, the principal amount of Twelve Thousand & 001100 Dollars ($12,000.00), together with interest on the unpaid principal balance from December 20, 2007, until paid in full. PAYMENT. Borrower will pay this loan In one principal payment of 412,000.00 plus interest on March 20, 2008. This payment due on March 20, 2008, will be for all principal and all accrued interest not yet paid. In addition, Borrower will pay regular monthly payments of all accrued unpaid interest due as of each payment date, beginning January 20, 2008, with all subsequent Interest payments to be due on the same day of each month after that. Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid interest; then to principal; then to any unpaid collection costs; and then to any late charges. The annual Interest rate for this Note Is computed on a 365/360 basis; that is, by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate In writing. VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an independent index which is the New York Prime Rate of Interest. The New York Prime Rate of interest shall mean the interest rate per annum announced from time to time in various business journals, such as The Wall Street Journal, as the "Prime Rate of Interest". The New York Prime Rate of Interest is an index, and loans of the Bank may be established at, above or below the index. The New York Prime Rate of Interest is not necessarily the Bank's lowest rate of interest. The interest rate shall float at New York Prime (the "Index"). The Index is not necessarily the lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notifying Borrower. Lender will tell Borrower the current Index rate upon Borrower's request. The interest rate change will not occur more often than each Day. Borrower understands that Lender may make loans based on other rates as well. The Index currently is 7.250% per annum. The interest rate to be applied to the unpaid principal balance during this Note will be at a rate of 1.000 percentage point over the Index, resulting in an initial rate of 6.250% per annum. NOTICE: Under no circumstances will the interest rate on this Note be more than the it . maximum rate allowed by applicable law. • PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of the date of the loan and will not be subject to refund upon early payment (whether voluntary or as a result of default), except as otherwise required by law. Except for the foregoing, Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments under the payment schedule. Rather, early payments will reduce the principal balance due. Borrower agrees not to send Lender payments marked "paid in full", "without recourse", or similar language.. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: Integrity Bank, 3314 Market Street Camp Hill, PA 17011. LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment or $10.00, whichever is greater. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by adding a 5.000 percentage point margin ("Default Rate Margin"). The Default Rate Margin shall also apply to each succeeding interest rate change that would have applied had there been no default. If judgment is entered in connection with this Note, interest will continue to accrue after the date of judgment at the rate in effect at the time judgment is entered. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. DEFAULT. Each of the following shall constitute an event of default ("Event of Default") under this Note: Payment Default. Borrower fails to make any payment when due under this Note. Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or in any of the related documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower. Default In Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the related documents. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Note or the related documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Death or Insolvency. The death of Borrower or the dissolution or termination of Borrower's existence as a going business, the insolvency of Borrower, the appointment of a receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the loan. This includes a garnishment of any of Borrower's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate PROMISSORY NOTE Loan No: 1500233750 (Continued) Page 2 reserve or bond for the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note, In the event of a death, Lender, at its option, may, but shall not be required to, permit the Guarantor's estate to assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of Default. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of this Note is impaired. Insecurity. Lender in good faith believes itself insecure. Cure Provisions. If any default, other than a default in payment is curable and if Borrower has not been given a notice of a breach of the same provision of this Note within the preceding twelve (12) months, it may be cured if Borrower, after receiving written notice from Lender demanding cure of such default: 11) cures the default within ten (10) days; or (2) if the cure requires more than ten (10) days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance under this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount. ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's reasonable attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including reasonable attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial In any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Note has been accepted by Lender in the Commonwealth of Pennsylvania. CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, Commonwealth of Pennsylvania. DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $10.00 if Borrower makes a payment on Borrower's loan and the check or preauthorized charge with which Borrower pays is later dishonored. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may, open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by' law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the debt against any and all such accounts. COLLATERAL. This loan is unsecured. PATRIOT ACT. TO HELP THE GOVERNMENT FIGHT THE FUNDING OF TERRORISM AND MONEY LAUNDERING ACTIVITIES, FEDERAL LAW REQUIRES ALL FINANCIAL INSTITUTIONS TO OBTAIN, VERIFY, AND RECORD INFORMATION THAT IDENTIFIES EACH PERSON WHO OPENS AN ACCOUNT. WHAT THIS MEANS FOR YOU: WHEN YOU OPEN AN ACCOUNT, WHETHER IT BE A DEPOSIT ACCOUNT OR A LOAN, WE WILL ASK FOR YOUR NAME, ADDRESS, DATE OF BIRTH, AND OTHER INFORMATION THAT WILL ALLOW US TO IDENTIFY YOU. WE MAY ALSO ASK TO SEE YOUR DRIVER'S LICENSE OR OTHER IDENTIFYING DOCUMENTS. CROSS COLLATERALIZED/CROSS DEFAULT. This loan also secures payment and performance of all other loans to Borrower or any guarantor. The word "Guarantor" means any guarantor, surety br accomondation party of any or all of the Loan. SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender and its successors and assigns. GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED ¢Y LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSInN OF JUDGMENT PROVISION TO BORROWEP- ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL NSEL. PROMISSORY NOTE .Loan No: 1500233750 (Continued) Page 3 PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. LENDER: INTEGRITY B NK J C N. McA oo, Vice kilesident LASER PRO Lending, Vat. 5.38.10.001 Copy. NW-,l F.--W 90lutiont, Inc. 1997, 2007. AN Mob. R-.-d. - PA *%LEN01NimmAm mini iR-2t92 M13 HANGE IN TERMS AGREEING "T in the boxes above are for Lender's use only and do not limit the applicability of this document to any particular loan or hem. Any item above containing """"" has been omitted due to text lenoth limitations. Borrower: FREDERICK C MILLER ; 13 MOUNT ALLEN DR MECHANICSBURG, PA 17055 Lender: Integrity Bank Camp HIM Office 3345 Market Street Camp HMI, PA 17011 (717) 920-4900 Principal Amount: $12,000.00 Initial Rate: 6.250% Date of Agreement: DESCRIPTION OF CHANGE IN TERMS. The original maturity date of March 20, 2008 is now extended to May 20, 2008. PROMISE TO PAY. FREDERICK C MILLER ("Borrower") promises to pay to Integrity Bank ("Lender"), or order, In lawful money of the United States of America, the principal amount of Twelve Thousand & 00/100 Dollars ($12,000.00), together with Interest on the unpaid principal balance from December 20, 2007, until paid in full. PAYMENT. Borrower will pay this loan in one principal payment of $12,000.00 plus Interest on May 20, 2008. This payment due on May 20, 2008, will be for all principal and all accrued Interest not yet paid. In addition, Borrower will pay regular monthly payments of all accrued unpaid Interest due as of each payment date, beginning January 20, 2008, with all subsequent interest payments to be due on the same day of each month after that. Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid interest; then to principal; then to any unpaid collection costs; and then to any late charges. Interest on this loan Is computed on a 365/360 simple Interest basis; that Is, by applying the ratio of the annual Interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate In writing. VARIABLE INTEREST RATE. The interest rate on this loan is subject to change from time to time based on changes in an independent index which is the New York Prime Rate of Interest. The New York Prime Rate of interest shall mean the interest rate per annum announced from time to time in various business journals, such as The Wall Street Journal, as the "Prime Rate of Interest". The New York Prime Rate of Interest is an index, and loans of the Bank may be established at, above or below the index. The New York Prime Rate of Interest is not necessarily the Bank's lowest rate of interest. The interest rate shall float at New York Prime (the "Index"). The Index is not necessarily the lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notifying Borrower. Lender will tell Borrower the current Index rate upon Borrower's request. The interest rate change will not occur more often than each Day. Borrower understands that Lender may make loans based on other rates as well. The Index currently is 5.250% per annum. The interest rate to be applied to the unpaid principal balance during this loan will be at a rate of 1.000 percentage point over the Index, resulting in an initial rate of 6.250% per annum. NOTICE: Under no circumstances will the interest rate on this loan be more than the maximum rate allowed by applicable law. PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of the date of the loan and will not be subject to refund upon early payment (whether voluntary or as a result of default), except as otherwise required by law. Except for the foregoing, Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments under the payment schedule. Rather, early payments will reduce the principal balance due. Borrower agrees not to send Lender payments marked "paid in full", "without recourse", or similar language. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Agreement, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: Integrity Bank, 3314 Market Street Camp Hill, PA 17011. LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment or $10.00, whichever is greater. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this loan shall be increased, by adding a 5.000 percentage point margin ("Default Rate Margin"). The Default Rate Margin shall also apply to each succeeding interest rate change that would have applied had there been no default. If judgment is entered in connection with this Agreement, interest will continue to accrue after the date of judgment at the rate in effect at the time judgment is entered. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. DEFAULT. Each of the following shall constitute an Event of Default under this Agreement: Payment Default. Borrower fails to make any payment when due under the Indebtedness. Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower. Default In Favor of Third Parties. Borrower defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to perform Borrower's obligations under this Agreement or any of the Related Documents. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Agreement or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Death or Insolvency. The death of Borrower or the dissolution or termination of Borrower's existence as a going business, the insolvency of Borrower, the appointment of a receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the Indebtedness. This includes a garnishment of any of Borrower's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with CHANGE IN TERMS AGREEMENT Loan No: 1500233750 (Continued) Page 2 Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness evidenced by this Note. In the event of a death, Lender, at its option, may, but shall not be required to, permit the Guarantor's estate to assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of Default. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired. Insecurity. Lender in good faith believes itself insecure. Cure Provisions. If any default, other than a default in payment is curable and if Borrower has not been given a notice of a breach of the same provision of this Agreement within the preceding twelve (12) months, it may be cured if Borrower, after receiving written notice from Lender demanding cure of such default: (1) cures the default within ten (10) days; or (2) if the cure requires more than ten (10) days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance under this Agreement and all accrued unpaid interest immediately due, and then Borrower will pay that amount. ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Agreement if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's reasonable attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including reasonable attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. GOVERNING LAW. This Agreement will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Pennsylvania without regard to Its conflicts of law provisions. This Agreement has been accepted by Lender In the Commonwealth of Pennsylvania. CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, Commonwealth of Pennsylvania. DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $10.00 if Borrower makes a payment on Borrower's loan and the check or preauthorized charge with which Borrower pays is later dishonored. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the debt against any and all such accounts. COLLATERAL. This Indebtedness is unsecured. CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms of the original obligation or obligations, including all agreements evidenced or securing the obligation(s), remain unchanged and in full force and effect. Consent by Lender to this Agreement does not waive Lender's right to strict performance of the obligation(s) as changed, nor obligate Lender to make any future change in terms. Nothing in this Agreement will constitute a satisfaction of the obligation(s). It is the intention of Lender to retain as liable parties all makers and endorsers of the original obligation(s), including accommodation parties, unless a party is expressly released by Lender in writing. Any maker or endorser, including accommodation makers, will not.be released by virtue of this Agreement. If any person who signed the original obligation does not sign this Agreement below, then all persons signing below acknowledge that this Agreement is given conditionally, based on the representation to Lender that the non-signing party consents to the changes and provisions of this Agreement or otherwise will not be released by it. This waiver applies not only to any initial extension, modification or release, but also to all such subsequent actions. SUCCESSOR INTERESTS. The terms of this Agreement shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns. MISCELLANEOUS PROVISIONS. If any part of this Agreement cannot be enforced, this fact will not affect the rest of the Agreement. Lender may delay or forgo enforcing any of its rights or remedies under this Agreement without losing them. Borrower and any other person who signs, guarantees or endorses this Agreement, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Agreement, and unless otherwise expressly stated in writing, no party who signs this Agreement, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Agreement are joint and several. If any portion of this Agreement is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Agreement. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS AGREEMENT AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS AGREEMENT AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS AGREEMENT OR A COPY OF THIS AGREEMENT VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS AGREEMENT TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIM ID AT ALL TIMES UNTIL PAYMENT IN FULL OF F AMOUNTS DUE UNDER THIS AGREEMENT. BORROWER HEREBY WAIVES ANY RI. BORROWER MAY HAVE TO NOTICE OR TO . REARING IN CONNECTION WITH ANY SUCH CHANGE IN TERMS AGREEMENT Lam No: 1500233750 (Canftu ld) Page 3 CONFESSION OF JUDGMENT AM STATES THAT EITHER A RUPRE6£NTATIVE OF LEWER SPECIFICALLY CALLED THIS CONFESSION OF JUDowNT PROYI6ION TO BOIIROwER'S ATTEhMON OA BORROVME3fI HAS BEEN R BY iNDWMIDWr LWAL COUMBEL. THIS AGNEINNINT UND PRIOR OM 0111151111111 MATE IIIO%*WNM? ?RNOWWER AGRM TO THE TERIIISD OF THE A G . PWVWW OF THIi AQ111?1/YIITT. MfXIlaG10 THE THNI AOItEEM91IT M OWN UNDER SEAL MD IT IS E±RENDiD THAT THIS Af3REE11IENT IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A S ALID INS'1'RI WENT ACOOMM TO LAW. LENDER: INTEGNTY BANK I LN M1D lwYR Vq L11.1DM OW. MYANA IMwYtW-&"bW A =L N1MMN---C -A& &=MKpMPUM Uo 1.1Mn MU C J • I L4J ry l INTEGRITY BANK, IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. O$ - qy95 CIVi l T??, FREDERICK C. MILLER, : Defendant CIVIL ACTION -LAW AFFIDAVIT OF NON-MILITARY SERVICE AND LAST-KNOWN ADDRESS OF FREDERICK C. MILLER COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN SS. The undersigned, being duly sworn according to law, deposes and says that to the best of my information and belief, Frederick C. Miller, is not in the Military or Naval Service of the United States or its Allies, or otherwise within the provisions of the Servicemembers Civil Relief Act, f/k/a the Soldier's and Sailor's Civil Relief Act of 1940, 50 U.S.C. App. 501, et seq. Frederick C. Miller is over eighteen (18) years of age and was last known residing at 13 Mount Allen Drive, Mechanicsburg, Pennsylvania, 17055. Clayton W. Daviso SWORN an44ubsgribed to before me this 25th day of July, 2008. al tary Pulic EvrL,-,ew, NQM1Y a.c My Commission xpires g oa`"''''r' "' Expires, 11, 2010 (SEAL) F C? d ? INTEGRITY BANK, Plaintiff, V. FREDERICK C. MILLER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. DI - 44g5 0-.A- %A Tc rw. : CIVIL ACTION -LAW CERTIFICATE OF RESIDENCE I, Clayton W. Davidson, hereby certify the Defendant in the above captioned case reside at the following addresses: Frederick C. Miller - 13 Mount Allen Drive, Mechanicsburg, PA 17055 McNEES WALLACE & NURICK LLC Date: July 25, 2008 By Clayton . Davi on PA Attorney I.D. No. 79139 McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 260-1678 (Direct Fax) (717) 232-8000 (Phone) cdavidsona,mwn.com Attorneys for Plaintiff, Integrity Bank C=:) > ? n ;' ; INTEGRITY BANK, Plaintiff, V. FREDERICK C. MILLER, Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 0$ - q4Q5 (2iv, l lerv, CIVIL ACTION -LAW NOTICE OF ENTRY OF JUDGMENT TO: Frederick C. Miller 13 Mount Allen Drive Mechanicsburg, PA 17055 You are hereby notified that on July _, 2008, a judgment by confession was entered against each of you in the above-captioned case in favor of Integrity Bank as follows: Principal: $ 9,833.08 Accrued Interest: 0.00 Attorney Fees (10% commission): 983.30 Total: $ 10,816.38* *along interest accruing at New York Prime + 1% per annum from and following July 21, 2008 until paid in full. DATE: 7 a 14 , //;"/, L -11 - OTHON INTEGRITY BANK, Respondent/Plaintiff V. FREDERICK C. MILLER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 08-4495 Petitioner/Defendant PETITION TO STRIKE, OR IN THE ALTERNATIVE, OPEN JUDGMENT AND REQUEST OF STAY OF PROCEEDINGS IN THE INTERIM AND NOW, comes the Petitioner/Defendant, Frederick C. Miller, by and through his counsel, Cunningham & Chernicoff, P.C., who files his Petition to Strike, or in the alternative, Open Judgment and Request of Stay of Proceedings in the Interim and in support thereof avers as follows: 1. BACKGROUND 1. Defendant/Petitioner is Frederick C. Miller ("Petitioner"), who is an adult individual with an address of 13 Mount Allen Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Plaintiff/Respondent is Integrity Bank (the "Respondent"), which is a Pennsylvania banking institution doing business at 3345 Market Street, Camp Hill, Cumberland County, Pennsylvania 1701 L 3. Petitioner seeks to invoke the equitable and discretionary powers of this Honorable Court to strike, or in the alternative, open that certain confessed Judgment entered in this Court at docket number 08-4495, Civil Term (the "Judgment") 4. This Court possesses jurisdiction over the Instant Petition pursuant to Pa. R.C.P. §2959(a). 5. On or about December 20, 2007, Petitioner executed a Promissory Note (the "Note") with Respondent. 6. On or about May 20, 2008, Petitioner executed a Change in Terms Agreement with Respondent pursuant to the Note. 7. The Note purports to contain a Confession of Judgment Provision against Petitioner (the "Confession of Judgment Provision") 8. The Confession of Judgment Provision was not explained to the Petitioner by Respondent, nor did Petitioner understand the Confession of Judgment Provision or that Petitioner was waiving his rights to answer any Complaint filed against him. 9. Respondent filed a Complaint and Confession of Judgment against Petitioner. II. PETITION TO STRIKE JUDGMENT 10. Petitioner/Defendant hereby incorporates Paragraphs 1 through 9 as if fully set forth herein. 11. The Confession of Judgment Provision was not explained to Petitioner prior to its execution, nor did Petitioner understand the Notice of Confession or that Petitioner was waiving his rights to answer any Complaint filed against him. 12. The Judgment entered against the Petitioner should be stricken. III. IN THE ALTERNATIVE, PETITION TO OPEN JUDGMENT 13. Petitioner/Defendant hereby incorporates Paragraphs 1 through 12 as if fully set forth herein. 14. All the reasons, as stated herein, constitute a meritorious defense of the Petitioner to the Complaint for Confession of Judgment and the entry of such Judgment. 15. If the Judgment is not stricken, it must be, at a minimum, opened so as to permit Petitioner's meritorious defenses to be heard. IV. REQUEST FOR STAY OF PROCEEDINGS 16. Petitioner/Defendant hereby incorporates Paragraphs 1 through 15 as if fully set forth herein. 17. Respondent has obtained Judgment by confession against the Petitioner. 18. The Judgment, for the reasons stated above, is void on its face and must be stricken. 19. In the alternative, the Petitioner has good and meritorious defenses to the Judgment and the Judgment must, at a minimum, be opened so as to permit Petitioner's meritorious defenses to be heard. 20. Failure to stay all matters, including without limitation, any levy or attachment, would cause the Petitioner to incur unnecessary expense and unnecessary harm. 21. The harm that Petitioner would sustain far outweighs any injury that would be incurred by the Respondent as a result of the stay of all proceedings until this Instant Petition to Strike or, in the alternative, Open Judgment is heard. WHEREFORE, Petitioner, Frederick C. Miller, hereby respectfully requests that this Honorable Court strike the aforesaid Judgment or, in the alternative, order that the Judgment be open so as to permit his meritorious defenses to be heard; that this Honorable Court stay all proceedings in the interim; and that this Honorable Court grant him such further relief as it deems just and proper. Respectfully submitted, r` Date: September 5, 2008 By: P$ SupremeICgA ID #23380 Kelly M. Knight, Esquire PA Supreme Court ID #87365 2320 North Second Street P. O. Box 60457 Harrisburg, PA 17106-0457 Telephone: (717) 238-6570 Attorneys for Petitioner VERIFICATION I, Fred Miller a/k/a Fred C. Miller, verify that the statements made in the foregoing PETITION TO STRIKE, OR IN THE ALTERNATIVE, OPEN JUDGMENT AND REQUEST OF STAY OF PROCEEDINGS IN THE INTERIM are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. By: 3?;; e"'40 Fred Miller a/k/a Fred C. Miller Date: September 5, 2008 V. NO: 08-4495 FREDERICK C. MILLER, Petitioner/Defendant CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant with the law firm of Cunningham & Chernicoff, P.C., certify a true and correct copy of the PETITION TO STRIKE, OR IN THE ALTERNATIVE, OPEN JUDGMENT AND REQUEST OF STAY OF PROCEEDINGS IN THE INTERIM will be served by first class U.S. Mail and/or electronic means on the following parties indicated: INTEGRITY BANK, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Respondent/Plaintiff PENNSYLVANIA Clayton W. Davidson, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Date: September 5, 2008 By: ?? Wfr ulieanne Ametrano F:\Home\KKNIGHTIDOCS\MILLER.FRED\Integrity Bank\Petition to Strike COFF, P.C. co INTEGRITY BANK, V. Respondent/Plaintiff FREDERICK C. MILLER, Petitioner/Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 08-4495 RULE TO SHOW CAUSE f day of, , 2008, it is hereby AND NOW, this 1. that: A Rule ig issued upon Respondent, to show cailse, if any it has, why the Judgment entered in the above-captioned matter should not be stricken, or in the alternative, opened and defenses of the Petitioners to be permitted; 7 2. The Respondent shall file an Answer to the Petition within twenty (20) days of service upon the Respondent; and be degided -j- D__ DC, §IQ&.-L 3. e ., f 3 a a co c,."? 1 I-' v v A 9n1. IT IS FURTHER ORDERED that all proceedings, including all executions on the Judgment are stayed pending this Court's review and determination of the Petition to Strike or in the alternative, Open Judgment and ruling thereon, and the entry of an Order dissolving such stay. Distribution List: Z Kelly M. Knight, Esquire CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street Harrisburg, PA 171110 Telephone: (717) 238-6570 kmkAcclawoc.com eo4/ i/o0 (? ?^1 Clayton W. Davidson, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 MNVAIASNN3d L 0 =b WV Z I dS Z Clayton W. Davidson PA Attorney I.D. No. 79139 McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 260-1678 (Direct Fax) (717) 232-8000 (Phone) cdavidson(R),mwn.com Attorneys for Plaintiff, Integrity Bank INTEGRITY BANK, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 08-4495 Civil Term FREDERICK C. MILLER, Defendant CIVIL ACTION -LAW INTEGRITY BANK'S RESPONSE TO DEFENDANT'S PETITION TO OPEN AND/OR STRIKE 1. PROCEDURAL HISTORY: On July 28, 2008, Integrity Bank confessed judgment (the "Judgment") against Frederick C. Miller ("Miller") in the above captioned case. The Judgment relates to a commercial loan made by Integrity Bank to Miller in the amount of $12,000.00 (the "Loan") and evidenced by a promissory note (the "Note") executed by Miller that same day along with a change in terms agreement (the "Change in Terms Agreement") which changed, among other things, the maturity date of the Loan to May 20, 2008. Attached as Exhibit A to Integrity Bank's Complaint are true and correct copies of the Note and Change in Terms Agreement (the "Loan Documents") which are incorporated herein by reference. On September 5, 2008, Miller filed a Petition to Open and/or Strike the Judgment (the "Petition to Open and/or Strike"). Miller asserts the Judgment should be stricken because: (a) the confession of judgment provision was not explained to him, (b) he did not understand the confession of judgment provision, and (c) he did not know that he was waiving his right to answer any Complaint filed against him (collectively the "Defenses"). Petition to Open and/or Strike at ¶ 8 & 10. In the alternative, Miller asserts the Judgment should be ooRened because the Defenses constitute a meritorious defense that justify opening the Judgment. II. LEGAL STANDARDS: Under Pennsylvania law, a petition to strike and a petition to open a confessed judgment are two forms of relief with separate remedies, and each is intended to relieve a different type of defect in confession of judgment proceedings. Manor Bldg. Corp. v. Manor Complex Assocs., 645 A.2d 843, 845 n.2 (Pa. Super. 1994). (a) Petition to Strike: A petition to strike a confessed judgment may only be granted if a fatal defect or irregularity appears on the face of the record. Atlantic Nat. Trust, LLC v. Stivala Investments, Inc., 922 A.2d 919, 922 (Pa. Super. 2007). In considering the merits of a petition to strike, the court will be limited to a review of only the complaint and the documents that contain confession of judgment clauses. Id. Matters outside the record filed by the party in whose favor the warrant is given will not be considered. If the record is self-sustaining, the judgment will not be stricken. Id. (b) Petition to Open: In order to open a confessed judgment, the petitioner/defendant must present evidence which in a jury trial would require that the issues be submitted to the jury. Pa.R.C.P. No. 2959, see also, Pittsburgh Nat'l Bank v. Larson, 507 A.2d 867 (Pa. Super. 1986). A petitioner/defendant must offer clear, direct, precise and believable evidence of a meritorious defense, sufficient to raise a jury question. Germantown Sav. Bank v. Talacki, 657 A.2d 1285, 2 1289 (Pa. Super 1995) (citations omitted). "An oath against an oath or a mere conflict of evidence do not warrant the submission of the issue to a jury. The evidence must carry such conviction of truth as to convince the judge that the judgment should be opened and a jury trial awarded." Palatucci v. Woodland, 70 A.2d 674, 677 (Pa. Super. 1950). III. ISSUES: (a) SHOULD THE JUDGMENT BE STRICKEN IF THERE ARE NO APPARENT DEFECTS OR IRREGULARITIES ON THE FACE OF THE RECORD RELATING TO THE JUDGMENT? Suggested Answer: No (b) SHOULD THE JUDGMENT BE OPENED IF MILLER FAILED TO STATE A MERITORIOUS DEFENSE THAT WOULD JUSTIFY OPENING THE JUDGMENT? Suggested Answer: No. IV. ARGUMENT: (a) THE JUDGMENT SHOULD NOT BE STRICKEN BECAUSE THERE ARE NO APPARENT DEFECTS OR IRREGULARTIES ON THE FACE OF THE RECORD RELATING TO THE JUDGMENT. Miller has failed to allege any facts in his Petition to Open and/or Strike that there are any defects or irregularities on the record relating to the Judgment. The Defenses have nothing to do with whether there was a defect or irregularity on the record relating to the Judgment. The Judgment was properly confessed in accordance with the terms of the Loan Documents and Miller has failed to offer any facts indicating there was a defect or irregularity on the record relating to the Judgment. 3 (b) THE JUDGMENT SHOULD NOT BE OPENED BECAUSE MILLER HAS FAILED TO STATE A MERITORIOUS DEFENSE THAT WOULD JUSTIFY OPENING THE JUDGMENT. There is no basis to open the judgment because the Loan Documents clearly indicate Miller knew, or should have known, he was granting Integrity Bank the power to confess judgment against him. The confession of judgment clauses in the Loan Documents are in all capital letters and specifically state that Miller was waiving any right to notice or a hearing before the judgment is confessed. Miller was free to consult with an attorney before executing the Loan Documents if he felt he needed a detailed explanation of the legal consequences of the confession of judgment clauses contained Loan Documents. Pennsylvania courts have made plain that where a party is free to consult counsel before signing a judgment instrument, but does not do so, he may not rely on the absence of legal advice to avoid the confessed judgment. Smith v. Lenchner, 205 A.2d 626, 627-28 (Pa. Super. 1964). The Defenses used by Miller to open the Judgment are commonly used by debtors who want to get out of lawfully confessed judgments. For example, the defendant in Germantown Savs. Bank v. Talacki, 657 A.2d 1285 (Pa. Super. 1995) raised the same type of baseless defenses despite the clear terms of the parties agreements. Specifically in Talacki, the defendant claimed she signed a confession of judgment provision in a commercial loan document at her husband's request and without the benefit of counsel (the lawyer representing her husband was not acting on her behalf), and that she did not know about or understand the confession of judgment provision. The court rejected this argument by stating that: It is well established that, in the absence of fraud, the failure to read a contract before signing it is `an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract"; it is considered "supine negligence." ...[W]ithout evidence to support appellant's allegations that she did not voluntarily consent to the warrant of attorney, and when appellant's signature 4 clearly appears on the last page of the Guaranty, we cannot find that the trial court abused its discretion when it refused to open the judgment on this basis.... ... It is clear that a party's signature to a contract is designed to evidence his or her intention to be bound thereby. [Citation omitted.] Where, as here, the debtor has not alleged fraud, and has produced no evidence to show a lack of capacity to understand the document signed, or that he or she had asked for an explanation of the contract language, the debtor must be held to the contract's terms. [Citation omitted.] 657 A.2d at 1289. Similarly, in Dollar Bank v. Northwood Cheese Co., 637 A.2d 309 (Pa. Super. 1994), a husband and wife signed a guaranty agreement for a commercial loan for the husband's business. After judgment was confessed, the wife claimed she was not aware of and did not understand the confession of judgment provision in the guaranty agreement. The court was unimpressed, finding that because she had signed the agreement, her averment of failure to understand its terms did not set forth a meritorious defense to the confessed judgment. Id., 637 A.2d at 313. Moreover, the court held: "The failure to read a confession of judgment clause will not justify avoidance of it.... This is particularly true where the confession of judgment clause is clear and conspicuous and part of a commercial transaction." Id. (citing Pittsburgh Nat'l Bank v. Larson, 507 A.2d 867 (Pa. Super. 1986) and Provco Leasing Corp. v. Safin, 402 A.2d 510 (Pa. Super. 1979)). The Loan Documents demonstrate, and Miller does not deny', that the confession of judgment provisions in the instant case were clear, conspicuous, and part of a commercial transaction, just as in Talacki and Dollar Bank. Miller has not plead any clear and specific facts which would negate the evidence provided by his signature on the Loan Documents, that he read, understood, and intended to be bound by the confession of judgment clauses contained in the ' Pursuant to Pa.R.C.P. No. 2959(c), a party waives all defenses and objections to a confessed judgment which are not included in the parties petition or answer in response to the confessed judgment. 5 Loan Documents. If the Defenses are to be believed, the plain language of the Loan Documents, and the actual or imputed knowledge to Miller after reading the confession of judgment clauses contained in these documents, would have to be ignored which is a clear distortion of logic and reason. Miller has failed to prove by clear, direct, precise and believable evidence that a meritorious defense exists that would justify opening the Judgment. V. CONCLUSION: In light of the above, the Petition to Open and/or Strike should be denied because there are no defects irregularities on the face of the record relating to the Judgment and Miller failed to allege any meritorious defense that would justify opening the Judgment. Respectfully submitted, McNEES WALLACE & NURICK LLC Date: September 29, 2008 BY ?? Clayt W. Da 'son PA Attorney I. . No. 79139 100 Pine Street - P. 0. Box 1166 Harrisburg, PA 17108-1166 (717) 260-1678 (Direct Fax) (717) 232-8000 (Phone) cdavidson(a,mwn. com Attorneys for Plaintiff, Integrity Bank 6 CERTIFICATE OF SERVICE The undersigned hereby certifies on this day that a true and correct copy of the attached document was served by first-class United States mail, postage prepaid, addressed as follows: Robert E. Chernicoff, Esquire Kelly A Knight, Esquire Cunningham & Chernicoff, P.C. 2320 North Second Street PO Box 60457 Harrisburg, PA 17106-0457 Date: September 29, 2008 Clayton . Davids , squire 731 W me l (w w j~f a C.. C :? ?? INTEGRITY BANK, Respondent/Plaintiff V. FREDERICK C. MILLER, Movant/Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 08-4495 MOTION FOR CONTINUANCE OF HEARING AND NOW, comes the Movant, Frederick C. Miller, by and through his counsel, Cunningham & Chernicoff, P.C., who submits this Motion for Continuance of Hearing and in support thereof avers as follows: 1. On September 11, 2008, this Court entered a Rule to Show Cause (the "Rule to Show Cause") scheduling a Hearing on Movant's Petition to Strike or in the Alternative, Open Judgment that is currently pending before this Court. 2. According to the Rule to Show Cause, a Hearing for this matter is scheduled for October 13, 2008 at 11:00 a.m. 3. The parties have been in negotiations pertaining to an ultimate resolution of this matter and are close to achieving the same. 4. On October 8, 2008, counsel for Movant and Respondent reached an agreement to continue the Hearing scheduled for October 13, 2008 as they are close to reaching a resolution of this matter. 5. Respondent's counsel, Clayton Davidson, Esquire, does not object to a continuance of the Hearing in this matter. WHEREFORE, your Movant, respectfully requests that this Honorable Court enter an Order rescheduling the above-captioned Hearing in this matter to another date. Date: October 8, 2008 P. O. Box 60457 Harrisburg, PA 17106-0457 Telephone: (717) 238-6570 Attorneys for Movant PA Supreme Court ID #87365 2320 North Second Street INTEGRITY BANK, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Respondent/Plaintiff PENNSYLVANIA V. NO: 08-4495 FREDERICK C. MILLER, Petitioner/Defendant CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant with the law firm of Cunningham & Chernicoff, P.C., certify a true and correct copy of the MOTION FOR CONTINUANCE OF HEARING will be served by first class U.S. Mail and/or electronic means on the following parties indicated: Clayton W. Davidson, Esquire McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 CUNNINGHAM & CHERNICOFF, P.C. Date: October 8, 2008 By. Julieanne Ametrano F:\Home\KKNIGH'nDOCS\IvIILLER.FRED\Integrity BankNotion for Continuant. y? ?? , ; 'y _" I ? ? 3 ?? lt} ?'?"? ?`"-; Y 'Ow '? 4'* . ? ?. OCT 14 2003 INTEGRITY BANK, Respondent/Plaintiff V. FREDERICK C. MILLER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 08-4495 Petitioner/Defendant ORDER AND NOW, this day of , 2008, upon review of the Annexed Motion for Continuance of Heari; ng,_it is HEREBY ORDERED that the Hearing in this matter s' scheduled for October 13, 2008, be rescheduled/o-? V44 pwt ` A J. 'f ?41 ti 0 v? o-? l? t =j C :1 Wd 51 100 o9oz INTEGRITY BANK PLAINTIFF vs. FREDERICK C. MILLER DEFENDANT :IN THE COURT OF COMMON PLEAS :OF CUMBERLAND COUNTY, PENNA : NO. 2008-04495 : CIVIL ACTION -LAW PARTIAL RELEASE OF JUDGMENT LIEN WHEREAS. on July 28, 2008, a judgment was entered in the amount of $10.816.38 in favor of Integrity Bank against Frederick C. Miller in the Court of Common Pleas of Cumberland County and filed to the above term and number, NOW, Integrity Bank, its successors and assigns, hereby withdraws the above stated judgment, only insofar as it pertains to the property located at 3516 Ritner Highway. Newville. Pennsylvania. IN WITNESS WHEREOF, being authorized to so act, I have hereunto set my and seal this t day of '?7"f - .2009. EGRITY BANK BY: OF THE PROTH I)QTARY 20 SEP --9 PM 2= 56 PENNd YLVP.( A ,q e ()b r ck- I-,- ? 4 W