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HomeMy WebLinkAbout04-1970IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Green Tree Consumer Discount Company, f/Ida Conseco Finance Consumer Discount Company, Plaintiff, Russ A. McPherson, Defendant. CIVIL DIVISION No. O'-/- IgT Complaint in Civil Action - Replevin Filed on behalf of: Green Tree Consumer Discount Company, f/Ida Conseco Finance Consumer Discount Company Counsel of Record for this Party: Erin P. Dyer, Esquire PA ID Number: 52748 5743 Centre Avenue Pittsburgh, PA 15206 (412) 361-1000 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 TVVENTY (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. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Green Tree Consumer Discount ) Company, f/k/a Conseco Finance ) Consumer Discount Company, ) ) Plaintiff, ) Russ A, McPherson, Defendant. CIVIL DIVISION No. Complaint in Replevin NOTICE THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS NOTICE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. You have been sued in court. If you wish to defend against the claims 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 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. Cumberland County Bar Association 32 S. Bedford St. Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Green Tree Consumer Discount Company, f/Ida Conseco Finance Consumer Discount Company, Plaintiff, v. Russ A. McPherson, Defendant. CIVIL DIVISION THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FORTHATPURPOSE. IFYOU HAVE PREVIOUSLY RECEIVEDA DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS NOTICE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. COMPLAINT COUNT I - REPLEVIN AND NOW, comes Green Tree Consumer Discount Company, f/Ida Conseco Finance Consumer Discount Company, by and through its attorney Erin P. Dyer, Esquire and avers the following in support of its Complaint in Replevin: 1. Green Tree Consumer Discount Company, f/Ida Conseco Finance Consumer Discount Company, hereinafter referred to as "Plaintiff" or "Green Tree," is a corporation duly authorized to conduct business in the Commonwealth of Pennsylvania and has its principal place of business located at Stonewood Commons III, 105 Bradford Road, Suite 200, Wexford, Pennsylvania 15090. 2. Russ A. McPherson, hereinafter referred to as "Defendant," is an individual whose last known address is 427 Wren Court, Mechanicsburg, Pennsylvania 17055. 3. On or about April 24, 2000, Defendant purchased a 1972 Schult Manufactured Home, Serial Number Ml14766, (the "Mobile Home"), from Conseco Bank, Inc., (the "Seller"), and entered into a written Manufactured Home Promissory Note, Security Agreement and Disclosure Statement, (the "Security Agreement") for the payment of a portion of the purchase price thereof. A true and correct copy of the Security Agreement is attached hereto as Exhibit "A." 4. Seller assigned its right, title and interest in the Security Agreement to Conseco Finance Consumer Discount Company, Plaintiff herein. 5. Plaintiff perfected its security interest in said Mobile Home by having an encumbrance placed on the title thereto. A true and correct copy of the Certificate of Title is attached hereto as Exhibit "B." 6. On June 9, 2003, Conseco Finance Consumer Discount Company filed Articles of Amendment - Change in Corporate Name with the Pennsylvania Department of State, Corporation Bureau. As of June 13, 2003, the new name of the corporation is Green Tree Consumer Discount Company. 7. Plaintiff avers that the approximate retail value of said Mobile Home is $9,000.00 and that the said Mobile Home is in the Defendant's possession and believed to be at Defendant's address as stated above. 8. Defendant defaulted under the terms of the Security Agreement by failing to make payments when due, As of April 22, 2004, the Defendant's payments of interest and principal were in arrears in the amount of $833.64. Pursuant to the Acceleration Clause in the Security Agreement the amount outstanding as of April 22, 2004, is $10,855.82. 9. Plaintiff provided Defendant with thirty (30) days notice of intent to repossess the Mobile Home. A true and correct copy of the notice of intent to repossess the Mobile Home is attached hereto as Exhibit "C." 10. demand. Defendant failed to cure the default or return the Mobile Home upon Plaintiff's 11. Plaintiff avers that under the terms of the Security Agreement and Pennsylvania law it is now entitled to immediate possession of said Mobile Home. pay: 12. The Security Agreement provides that in the event of default, Defendant will a. the reasonable attorney's fees of seller or of seller's assignee, provided that prior to commencement of legal action such fee shall not exceed $50.00; b. court costs and disbursements; and c. costs incurred by seller or of seller's assignee to foreclose on the Mobile Home including the costs of storing, reconditioning and reselling the Mobile Home. 13. In order to bring this action Green Tree Consumer Discount Company, f/k/a Conseco Finance Consumer Discount Company was required to retain an attorney and did so retain Attorney Erin P. Dyer. WHEREFORE, Plaintiff, Green Tree Consumer Discount Company, f/k/a Conseco Finance Consumer Discount Company, requests: a) judgment against Defendant to recover possession of the Mobile Home, plus detention damages, special damages consisting of inter alia, detaching and transporting the Mobile Home, shipping fees, any cost for insurance placed on the Mobile Home by Plaintiff, late charges, and all allowable damages per the Security Agreement, any further costs for repossession and sale, and attorney's fees and costs of litigation in order to obtain possession of the Mobile Home; and b) In the event Plaintiff repossesses said Mobile Home and resells or otherwise disposes of said Mobile Home, a deficiency judgment in an amount to be determined by the Court upon petition of Plaintiff, which amount shall be equal to the difference between the amount owed pursuant to the said Security Agreement plus the damages set forth in paragraph (a) above and the amount recovered by Plaintiff from the resale or other disposition of the said Mobile Home, less expenses. COUNT II - DAMAGES By way of separate and alternative pleading, Plaintiff, Green Tree Consumer Discount Company, f/k/a Conseco Finance Consumer Discount Company, alleges the following: 14. Paragraphs 1 through 13 of this Complaint are incorporated herein by reference as though fully set forth. 15. This Count is brought in the alternative to the relief sought in Count I. WHEREFORE, Plaintiff, Green Tree Consumer Discount Company, f/k/a Conseco Finance Consumer Discount Company, requests: a) judgment against Defendant in the amount of $10,855.82 with interest and late charges plus detention damages, special damages consisting of inter alia, detaching and transporting the Mobile Home, shipping fees, any cost for insurance placed on the Mobile Home by Plaintiff, late charges, and all allowable damages per the Security Agreement, any further costs for repossession and sale, and attorney's fees and costs of litigation in order to obtain possession of the Mobile Home; and b) In the event Plaintiff repossesses said Mobile Home and resells or otherwise disposes of said Mobile Home, a deficiency judgment in an amount to be determined by the Court upon petition of Plaintiff, which amount shall be equal to the difference between the amount owed pursuant to the said Security Agreement plus the damages set forth in paragraph (a) above and the amount recovered by Plaintiff from the resale or other disposition of the said Mobile Home, less expenses, L:\Greer~ Tree~McPherson, Russ\CM Replevin.wpd Erin P, Dyer, Esquire PA ID Number: 52748 Attorney for Plaintiff 5743 Centre Avenue Pittsburgh, PA 15206 (412) 361-1000 VERIFICATION Carmine M. Amelio, Regional Manager and duly authorized representative of Green Tree Consumer Discount Company, deposes and says subject to the penalties of 18 Pa. C.S. section 4904 relating to unsworn falsification to authorities that the facts set forth in the foregoing are true and correct to the best of his knowledge, information and belief. GREEN TREE CONSUMER DISCOUNT COMPANY armine M Amelio, Regional Manager L:~Green Tree'tG EN E RAL',Ve rificafion. Am elio.wpd aT-10-OO-=0Z ~3~99) UH-P~SA HIP. NORTH CAROLINA, PENNSYLV .~l~r_ A MANUFACTURED HOME PROMISSORY NOTE, SECURITY (SI) I ~/-~/~/"~ O0 AGREEMENT AND DISCLOSURE STATEMENT (CONV.- FHA - VA) D~t~e'~'. MAKER: CREDITOR: Conseco Bank, loc. 2825 E. Cottonwood pa:k~ay, gui:e 250. Sa1: Lake City. UT 84121 ANNUAL PERCENTAGE RATE IThe cost of my credit as a yearly rate.) [9.70 My Payment Schedule will be: Number of payments [20 FEDERAL TRUTH-IN-LENDING ACT DISCLOSURES FINANCE CHARGE Amount Financed IThe dollaf amount the credit (The amount of credit provided will cOSt me.) to me or on my behalf,) SECURITY: I am giving a security interest in: Total of Payments (The amount I will have paid after I have made all payments as scheduled.) Amount of Payments t90.90 When Payments Are Due Monthly beginning 30-45 da~a f=om \ X The manufactured home or modular home being purchased. N/A The manufactured home or modular home being refinanced. ..~,/A Real ~toperty located at N/^ LATE CHARGE: If a payment is more than 10 days late, I will be charged 10% of the scheduled lns:all~en~ PREPAYMENT: If I pay off early, I X may , ~/A will not be charged a prepayment penalty. ASSUMPTION: Someone buying my home may, subject to underwriting conditions, be a~towed to assume the remainder of my obligation on the original terms. See the Contract document below for any additional information about nonpayment, default, any required repayment in full before the scheduled date, and prepayment refunds and penalties. ITEMIZATION OF THE AMOUNT FINANCED Amount Given To Me Directly .................. $ Name of Previous Creditor Amounts Paid To Others On My aehalf: a. Paid to Public Officials ......................... + $ b. Paid to Insurance Companies ................ ~- $ c. Paid to Appratser .................................+ $ d. Paid to CONSEC0 FOR ~0INTS + $ i. Paid to + $ k. Paid to + $ -$ -$ PHYSICAL DAMAGE INSURANCE · 0o Physical Damage Insurance is required but I may obtain it from anyone I want tha~ is acceptable to you. If I get the insurance checked below from you or through you, I will pay you · 00 ' $ .00 for insurance protection for a term of 00 years· .00 N/A Comprehensive ($ .00 deductible) .00 N/A Flood 705.68 N/A Liability N/A Vendor's Single Interest 100.00 N/A Other ~/A 5000.00 ~,,8Bo. 8'~ OPTIONAL CREDIT LIFE AND DISABILITY INSURANCE Credit Life and Disabiliw Insurance are not required to obtain ,oo credit and will not be provided unless I sign and agree to pay the ,oo additional cost, .oo The term of this insurance is 00 years. .0o N/A Single Credit Life Insurance $ .00 10785.47 N/A Joint Credit Life Insurance $ ,00 N/A Single Credit Disability Insurance $ .00 805.65 Total $ .00 .00 .oo X 9980.82 Signature of Makerls) Insured Date CONTRACT AND SECURITY AGREEMENT 1. DEFINITIONS: "1", "me", "my" means the Makerlal. "You", "your" means the Creditor. "Manufactured Home" means the manufactured home or modular home; the real property described above, if applicable; and any other prope~[y described on page "Agreement" or "Contract" means this Promissory Note, Security Agreement and Disclosure Statement; and a mortgage or deed of trust, if applicable. EXHIBIT "A" USED YEAR AND MAKE MODEL SERIAL NUMBER SIZE x . Stove X Refrigerator × Washer x Dryer X .. Air Conditioner N/A Wheels/Axles Other (Descr be N/A LOCATION: The Manufactured Home is located at the following address: 427 WR~ COURT , HEC?.Z~IICS~URG . ?A . The Iand on which the Manufactured Home is Iocated is owned by: 3. PROMISE TO PAY: To repay my Ioan, I promise to pay you ~.0785.67 (the "Principal Balance") as listed under the "Itemization of Amount Financed" on page 1, ptuS interest from the da~;e of =he disbursement at the rate of I? per annum until paid in full Py making the "Total of Payments" in accordance with the "Payment Schedule" on page I. The Total Sale Price is 22908.00 end my down payment is .00 4. LATE CHARGE: If a payment is ~lade more than _ l0 . days after it iS due, I agree to psy a late charge of 10% of =he scheduled /z~s=allmen'c amotmc S. NSF FEE: If any instrument Which I submit to you is returned unpaid for any reason, [ will pay you a fee of $ 25.00 6. SIMPLE INTEREST CONTRACT: This is a simple interest contract. Interest will accrue upon the unpaid principal balance outstanding from time to time. The Finance Charge, Total of Payments and Payment Schedule were computed based on the assumption that payment will be made on the dates scheduled for payment. Early payments will reduce my final payment. Late payments will increase my final payment. My final payment will be equal to all unpaid sums due under this Agreement. My promise rec~uJres me to pay the final payment on the date due even if the amount of the final payment differs from the amount of the final payment disclosed. 7. SECURITY INTEREST; I give you a security interest under the apallcable certificate of title law or Uniform Commercial Code in the Manufactured Home and any property added or attached to it, to secure my obligation under this Agreement. I also grant you a security interest in any interest I may have in premium refunds or proceeds under any insurance covering the Manufactured Home. I agree to execute any application for certificate of tide or ownership, financing statement or other document necessary to perfect your security interest in the Manufactured Home. To the extent, if any, that any Agreement (whether or not accompanied by any one or more original) constitutes chattel paper (as such term is defined in the Uniform Commercial Code in effect in the applicable jurisdiction) no security interest in any Agreement may be created in ar~y document(si other than the Original. I~. PREPAYMENT; I may prepay this note in part or in full at anytime. I will not pay a penalty upon prepayment unless otherwise stated in the next sentence. If I prepay in full within months of the date of this note, I will pay you a penalty of Partial prepayments will not excuse or reduce any )ater scheduled payment until thls note is paid in full. 9. NO WARRANTIES; I agree that there are no warranties of any type covering the Manufactured Home. If I am purchasing the Manufactured Home, then it is being purchased AS IS and WITH ALL FAULTS and THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE MANUFACTURED HOME IS WITH ME. I agree that any impried warranty of merchantability and any implied warranty of fitness for a particular purpose are specificatly excluded and do not cover the Manufactured Home. This No Warranties provision does not apply to the extent that any law prohibits it and it does not cover any separate written warranties. 10. PROTECTION OF THE MANUFACTURED HOME: I will: (al keep the Manufactured Home in good condition and not commit waste; (b) pay all taxes, charges and lot rent due for the Manufactured Home and the real estate it is located on; (c) not move, use illegally, sell, lease or otherwise transfer the Manufactured Home; (d) not attach the Manufactured Home to any real estate and the Manufactured Home will always be treated as personal property unless you consent in writing and stare law permits such contrary treatment; and {e) not let anybody else have any interest in the Manufactured Home. 11. PERSONAL PROPERTY: I agree that regardless of how my Manufactured Home is attached to the real property and regarcDess of how your security interest in my Manufactured Home is perfected and regardless of whether an affidavit of affixture (or other similar instrument identifying the property as a fixture) has been recorded, my Manufactured Home is and shall remain personal property and is MCFHERSON ' ~963528 not and shal{ not become a fixture ~rt of the real property unless you cons~ writing and state law permits a contrary classification. I agree to pay any end all~rsonal property taxes assessed against my rv~nufactured Home and agree that failure to pay such taxes shall constitute a default under paragraph 16 on page 3. ~ 12. iNSURANCE: I will keep the Manufactured Hom(,~ insured against such risks and in such amounts as you may reasonably require with an insurance company satisfactory to you. I will arrange for you to be named as loss payee or} the policy. I agree to provide you written evidence of insurance as requested by you frpm time to time. If you finance the purchase of any such insurance for me, I will repay you for the cost of that insurance, plus interest up to the contract rate of interest. I authorize you to furnish account data to a licensed insurance agent of your choice so such agent may solicit the purchase of credit, property, warranty or other insurance from me. I agree that the insurance company may make any payments due under the policy directly to you, and I direct the insurance company to do so. You may do whatever you think is necessary to be sure that any proceeds of the insurance will be used to repair the Manufactured Home or pay off this Agreement. I give you a power of attorney (which I cannot cancel) so that you may do whatever you need to in order to collect the insurance proceeds. If I fad to obtain, maintain or pay for the required insurance, or if I fail to arrange for you to be named as loss payee, you may treat that as a default of my obligations under this Agreement, and you may (but ara not required to) purchase such insurance. If you purchase such insurance, I will immediately repay you for any amounts you spend in purchasing the insurance, plus interest up to the contract rate of interest or, at your option, pay you over time as a workout of the obligation. If I owe you for any insurance {or for late charges, attorney fees or collection costs), I understand that I owe an additional sum for these debts beyond my monthly principal and interest payment. My monthly payment will therefore be greater than that stated on page 1 until such additional debts are paid in full. 13. CHARGES; LIENS: I shall pay all taxes, assessments and other charges, fines and impositions attributable to the Manufactured Home which may attain a priority under this Agreement. I shell promptly furnish to you all notices of amounts due under this paragraph end, if I make payments on any such amounts directly, I shall promptly furnish to you receipts evidencing such payments. I shall promptly discharge any lien which has priority over this Agreement provided that I shall not be required to discharge any such lien so long as I shall agree in writing to the payment of the obligation secured by ~uch lien in a manner acceptable to you or shall in good faith contest such lien by, or defend enforcement of such lien in, legal proceedings which operate tO prevent the enforcement of the lien or forfeiture of the Manufactured Home or any part thereof. 14. INSPECTION: You may make. or cause to be made, reasonable entries upon and inspections of the Manufactured Home, provided that you shall give me notice prior to any such inspection specifying reasonable cause therefor related to your interest in the Manufactured Home. 15. FORBEARANCE BY CREDITOR NOT A WAIVER: Any forbearance by you in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by you shall not be a waiver of your right to accelerate the maturit~ of this indebtedness secured by this contract and declare a default herein. 16. DEFAULT: I will be in default if: Ii) I do not make a payment on time; or (ii) I do not keep any of my other promises under this Agreement; or (iii) I file a case, or someone else flies a case against me, under the United States Bankruptcy Code; or (iv) you feel in good faith that the Manufactured Home is in danger or that I will not be able to continue my payments. The default ~escribed under (iv} does not apply if this Agreement is gua~ranteed by the Veteran's Administration. You will give me notice of the default except when I voluntarily surrender or abandon the Manufactured Home. J will have the right to cure the default during the notice period. If I do net cure the default, you may do either or both of the following: la} Acceleration: You can require me to immediately pay you the entire remaining balance of this Agreement; and/or (bi Repossession: You can repossess the Manufactured Home. Once you get possession of the Manufactured Home you may sell it. If the amount from the sale, after expenses, is Jess than what I owe you, I will pay you the difference. If there is any property left in the Manufactured Home when you repossess, you ma'~ dispose of it as provided by law. If I default, you can do whatever is necessar~ to correct my default. If you spend money to correct my default, I will pay you back immediately with interest at the contract rate of interest. 17. NOTICE: Except for any notice required under applicable law to be given in another manner, la) any notice to me provided for in this Agreement shall be given in writing by mailing such notice by certified mail, addressed to me at the Manufactured Home add[ess or at such other address as I may designate by notice to you in writing, and lb) any notice to you shall be given in writing by certified mail, return receipt requested, to your address stated herein or to such other address as you may designate by notice to me in v~riting. 19. TRANSFER OF PROPERTY; ASSUMPTION: If all or any part of the Manufactured Home or interest therein is sold er otherwise transferred by me without your pdor written consent, excluding the creation of a purchase money security interest for household appliances, you may, at your option, dec/are all the sums secured by this Agreement to be immediately due and payable, if you exercise such option to accelerate, you shall mail to me thirty (30) days prior notice of acceleration in accordance with the notice provision herein, if I fail to pay such sums prior to the expiration of such period, you may, without further notice or demand on me, invoke any remedies permitted under Jaw. 19. ATTORNEY'S FEES: If you hire an attorney who is not a salaried employee to collect what I owe under this Agreement or tO get possession of the Manufactured Home or to enforce my agreements herein, I will pay your statutory attorney's fees plus court costs and out-of-pocket expenses, if a]lowe~ by law. 20. MISCELLANEOUS PROVISIONS: This written Agreement is the only agreement that covers my loan. This Agreement can only be modified or amended or provisions Jn it waived (given up) by a written modification to this Agreement signed Dy you. You can decide not to use or enforce any of your rights under this Agreement without losing them. For example, you can extend the time for making some payments without extending ot. If any part of this Agreement cannot be~rced because of a law which prohibits-it, all o~her parts can still be enforced. I agrL~"to cooperate with you regarding any request~'~t=ter closing to correct errors made concerning this Agreement or the transaction and to provide any and all additional documentation deemed necessary by VOU to complete this transaction. 21. ARBITRATION: All disputes, claims, or controversies arising from or relating to this Agreement or the rerationship$ which result from this Agreement, or the validity of this arbitration clause, or the entire Agreement, shall be resolved by binding arbitration by one arbitrator selected by you with my consent. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, Title 9 of the United States Code. Judgment upon the award rendered may be entered in any court having jurisdiction. The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right or opportunity to ritigate disputes in court, but that they prefer to resolve their disputes through arbitration, except as provided herein. THE PARTIES VOI:UNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL, EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION BY YOU lAS PROVIDED HEREINI. The parties agree and understand that all disputes arising under case law, statutory law, and all other laws including, but not limited to, all contract, tort, and property disputes, will be subject to binding arbitration in accord with this agreement. I agree that I shall not have the right to participate as a representative or a member of any class of claimants pertaining to any claim arising from or relating to this Agreement. The parties agree and understand that the arbitrator shall have all powers provided by law and the Agreement. These powers shall include'all legal and equitable remedies, including~ but not limited to, money damages, declaratory relief, and iniunctive relief. Notwithstanding anything hereunto the contrary, we retain an option to uae judicial or non-judicial relief to enforce a security agreement relating to the collateral secured in a transactiqn underlying this arbitration agreement, to enforce the monetary obligation or to foreclose on the collateral. Such judicial relief would take the form of a lawsuit. The institution and maintenance of an action for judicial relief in a court to foreclose upon any collateral, to obtain a monetary judgment or to enforce the security agreement, shall not constitute a waiver of the right of any party to compel arbitration regarding any other dispute or remedy subject to arbitration in this Agreement, including the !iling of a coun~ercraim in a suit brought by you pursuant to this provision. 22. APPLICABLE LAW: The interest to be charged on this loan is governed by the laws of the state of U~:a~ and ap~l~,cable · e~e~l law . All other terms of this transaction are governed by the law of the state of 23. ADDITIONAl. TERMS: t~/A NOTICE TO MAKER{S): 1. DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACES. 2. YOU ARE ENTITLED TO A COPY OF THIS AGREEMENT. MAKER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS AGREEMENT. CAUTION - IT IS IMPORTANT THAT YOU THOROUGHLY READ THE ENTIRE AGREEMENT BEFORE YOU SIGN IT. Maker ~/~ ~, ~J~'/~'~~''~'"~"~' ~a~e MakerX / Date ,~C HU[ T WREN COURT ~HECHAN'IC SBURG PA 'CON.SECO:, F INANCE- ".£~ ;~4', ' "~', ~ :%i:' 1.~OO' TURBINE DR · :;,, .RAPID CIT~ SO !RAL LAg' EXHIBIT "B" : ,G E TRE E Green Tree Consumer Discount Company Manufactured Housing Division 105 Bradford Road Stonewood Commons III, Suite 200 P.O. Box 1158 Wexford, Pensytvan[a 15090-1158 phone 800.245.1340 fax 724.934.7176 GTServicing.com RUSS MCPHER~ON 427 WREN CT MECHANICSBURG,PA 17055 Post-Banlmptcy Accounts Only: No Reaffirmation Signed NOTICE OF DEFAULT AND RIGHT TO CURE DATE OFNOTICE: 9-94)3 THIS IS NOT A BILL TttlS STATEMENT IS FOR INFORMATIONAL PURPOSE ONLY. If you were an obligor on this account prior to the filing of a Chapter 7 bankruptcy, and you have received a discharge, and ffthe debt was not reaffirmed in the bankruptcy case, Greentree Finance Consumer Discount Company ("Greentree Finance") is exercising only its rights under the security agreement as allowed by law. Greentree Finance is not attempting any act to cofleet or recover the discharged debt as your personal Hability. If the amount requested is not received by the stated date, Greentree Finance may exercise its right to seek possession of the collateral. Credit Transaction: ManUfactured Home Debt Aecount Number 54310076 (tbe "Contract") The Contract is in default. Such default consists of our failure to receive the Contract's monthly payments as scheduled. Greentree Finance retains a security interest in the collateral securing the Contract~ The terms of the Contract provide that in the event of default, Greentree Finance can repossess/foreclose the collateral, subject to a right to cure such default. If the default is cured, you may continue to possess the collateral as if there had been no default. PLEASE NOTE THAT YOUR PERSONAL OBLIGATION TO PAY TI::IE CONTRACT IclAs BEEN DISCItARGED IN BANKRtJPTCY ~ TItAT YOU ARE UNDER NO OBLIGATION TO CURE TIdE DEFAULT. CURE OF DEFAULT: The default may be cured by our receipt ors 11296.13within 30 days from the postmarked date of this notice CRI~ITORS' RIGHTS: If the default is not cured in the time allowed, Greentree Finunee may exercise its right under the law and the Contract, which include repossession and/or foreclosure of the home. In the event of repossession, the home will be sold at a private or public sale as provided by law. You have the right to redeem the home until such sale is held. If you have any questions, you may write to Greentree Finance at the above noted address or call 1-800-245-1340 X129 during normal business hours. EXHIBIT "C" SHERIFF'S RETURN - REGULAR CASE NO: 2004-01970 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GREEN TREE CONSUMER DISCOUNT VS MCPHERSON RUSS A RON KERR , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, MCPHERSON RUSS A DEFENDANT , at 1602:00 at 427 WREN COURT MECHANISCBURG, PA 17055 RUSS MCPHERSON a true and attested copy of the within COMPLAINT - REPLEVIN HOURS, COMPLAINT - on the was served upon 6th day of May the , 2004 by handing to REPLEVIN together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 7.59 Affidavit .00 Surcharge 10.00 .00 35.59 Sworn and Subscribed to before me this /~.--~day of 'F~ So Answers: R. ~homas Kline 05/07/2004 DYER LAW FIRM Deputy Sher~'ff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Green Tree Consumer Discount ) Company, f/k/a Conseco Finance ) Consumer Discount Company, ) ) Plaintiff, ) ) v. ) ) Russ A. McPherson, ) ) Defendant. ) CIVIL DIVISION No. 04 - 1970 Civil Term PRAEClPE FOR ENTRY OF JUDGMENT BY DEFAULT To the Prothonotary: Please enter Judgment by Default in favor of Plaintiff Green Tree Consumer Discount Company, f/k/a Conseco Finance Consumer Discount Company and against Defendant Russ A. McPherson for his failure to plead to the Complaint in this action within the required time. The Complaint contains a Notice to Defend within twenty days from the date of service thereof. Defendant was served with the Complaint on May 6, 2004 and his answer was due to be filed on May 26, 2004. Attached as Exhibit "A" is a copy of Plaintiffs written Notice of Intention to File Praecipe for Entry of Default Judgment which I certify was mailed by regular mail to the Defendant at his last known address and to his attorney of record, if any, on May 27, 2004, which is at least 10 days prior to the filing of this Praecipe. Please enter judgment for possession of the 1972 Schult Manufactured Home, Serial Number M114766, that being the relief demanded in the Complaint. Erin P. Dyer, Esquire PA ID Number: 52748 Attorney for Green Tree 5743 Centre Avenue Pittsburgh, PA 15206 (412) 361-1000 Attachments: Ten Day Notice -- Exhibit "A" Affidavit of Non-Military Service & Last Known Address IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Green Tree Consumer Discount Company, f/k/a Conseco Finance Consumer Discount Company, Plaintiff, Russ A. McPherson, Defendants. CIVIL DIVISION No. 04 -1970 Civil Term Certificate of Mailing Russ A. McPherson 427 Wren Court Mechanicsburg, PA 17055 Date of Notice: May 27, 2004 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 Erin~~ Afforneyfor Plaintiff 5743 Centre Avenue Pittsburgh, PA 15206 (412) 361-1000 L:\Green Tree\McPherson, Russ\TDN.wpd EXHIBIT "A" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Green Tree Consumer Discount Company, f/k/a Conseco Finance Consumer Discount Company, Plaintiff, Russ A. McPherson, Defendant. CIVIL DIVISION No. 04 - 1970 Civil Term AFFIDAVIT OF NON'MILITARY SERVICE & LAST KNOWN ADDRESS ERIN P. DYER, Attorney, being duly sworn according to law, deposes and says that he makes this Affidavit on behalf of the within Plaintiff, being so authorized avers that Defendant's place of residence is 427 Wren Court, Mechanicsburg, PA 17055, and that he is not in the military service of the United States or its allies, or otherwise subject to the provisions of the Soldiers and Sailors Civil Relief Act of Congress of 1904 and its amendments, 50 U.S.C. § 501, et seq. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Erin~quire PA ID Number: 52748 Attorney for Green Tree 5743 Centre Avenue Pittsburgh, PA 15206 (412) 361-1000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PEN NSYLVAN IA Green Tree Consumer Discount Company, f/k/a Conseco Finance Consumer Discount Company, Plaintiff, Russ A. McPherson, Defendant. CIVIL DIVISION No. 04 - 1970 Civil Term PRAECIPE FOR WRIT OF POSSESSION To the Prothonotary, kindly issue Writ of Possession in the above matter and direct the Sheriff of Cumberland County to: Consumer Company: 1972 Schult Manufactured Home, Serial Number M114766. Deliver possession of the following described property to Green Tree Discount Company, f/k/a Conseco Finance Consumer Discount 2. Inform Russ A. McPherson that he has ten (10) days to remove personal items. 3. After ten (10) days a motor truck will transport the 1972 Schult Manufactured Home to a predetermined area or the Plaintiffwill secure the Mobile Home with a new lock for later transport. 4. Levy upon any property of Russ A. McPherson remaining after the above-mentioned time period and sell his interest therein. Erin P. Dyer, Esquire PA ID Number: 52748 Attorney for Green Tree 5743 Centre Avenue Pittsburgh, PA 15206 (412) 361-1000 WRIT OF POSSESSION (Ejectment Proceedings PRCP 3160 - 3165 etc.) GRE~Iq TREE CONSklqER DISODUNT COMPANY, F/K/A CONSECON FINANCE ODNSLlqER DISCOUNT COMPANY No. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-1970 CIVIL Term Term vs. Costs RUSS A. McPHERSON Att'y. Pl'ff (s) ~ Prothy. $ 115.09 $ $ 1.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: Green Tree Consumer Discount Cc~anv, f/k/a Conseco Finance Consumer Discount Cowpany being: (Premises as follows): 1972 Schult Manufactured Hcme Serial Number Ml14766 427 Wren Court Mechanicsburg, PA 17055 Plaintiff (s) (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defen- dant (s) and sell his/her (or their) interest therein. June 14, 2004 Date (SEAL) Curtis R. Long Pro~onomry, Common Pleas Corot of Cumberland Count, Pennsylva~a By virtue of this writ, on the day I caused the within named have possession of the premises described with the appurtenances, and · to WRIT OF POSSESSION RETURNED STAYED THIS DATE AS PER ATTY Sheriff's Return Docketing 18.00 Prothon 1.00 Poundage .98 ~,,r~h~rge 20. OO Milage 4~i~ Advance Costs 150.00 .~4~re~iffts-Costs~%9~ 100.36 Refunded to Atty 7/15/04 Sworn~and subscribed t~.tb~e~!'9[e me this ~) /6 ~ day of (~g,.3, ~_~?l~? !: ~ 0,,.Z~7'