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Home My WebLink About09-3481 MARGARET M. STUSKI, ESQUIRE PA Supreme Court ID #: 42478 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax STEPHANIE E. CHERTOK, ESQUIRE PA Supreme Court ID #: 52651 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW BRADLEY KELLOGG AND PATRICIA KELLOGG, Plaintiffs : CIVIL ACTION NO. vs. AUDUBON PARK, Defendant NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you by the Court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary, Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. 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 South Bedford Street Carlisle, PA 17013 (717) 249-3166 OR 800) 990-9108 MARGARET M. STUSKI, ESQUIRE PA Supreme Court ID #: 42478 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax STEPHANIE E. CHERTOK, ESQUIRE PA Supreme Court ID #: 52651 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW BRADLEY KELLOGG AND PATRICIA KELLOGG, Plaintiffs CIVIL ACTION NO. v 9 - 3 y ?I l-- VS. AUDUBON PARK, Defendant COMPLAINT 1. Plaintiffs are Bradley Kellogg and Patricia Kellogg, husband and wife, who currently reside at 1615 Walnut Bottom Road, Newville, Cumberland County, Pennsylvania 17241. 2. Defendant is Audubon Park, who has its principal place of business at 84 Audubon Park, Dillsburg, York County, Pennsylvania 17019. 3. On or about December 4, 1995, Plaintiffs entered into a contract with Audubon Park for the purchase of a 1992 Skyline Royal Cove mobile home, serial number 13110385D. A true and correct copy of the sales contract is attached hereto marked as Exhibit "A" and made a part hereof. 4. The total cash purchase price of the mobile home was nineteen thousand nine hundred sixty dollars ($19,960.00). 5. The sales contract lists Anna Hollinger, an agent of Audubon Park, as the salesperson. See Exhibit "A". 6. The mobile home was previously owned by Theresa Singer, and was subject to a loan secured by the mobile home, and held by Security Pacific Housing Services, Inc., which is now owned by Bank of America. 7. In order to facilitate the purchase of the mobile home, Plaintiffs entered into a Retail Installment Contract and Security Agreement with Audubon Park on December 4, 1995. A true and correct copy of the Retail Installment Contract and Security Agreement is attached hereto marked as Exhibit "B" and made a part hereof. 8. On page three (3) of the Retail Installment and Security Agreement, it states that the contract and security agreement is assigned to Harris Savings Bank, 2nd and Pine Streets, Harrisburg, Pennsylvania 17105, which is the lending institution which financed the Plaintiffs' purchase of the mobile home. 9. The Retail Installment Contract and Security Agreement lists Audubon Park as the "Seller". 10. Anna L. Hollinger, an agent of Audubon Park, signed the Retail Installment Contract and Security Agreement, and is listed as the "Salesperson." See Exhibit "B" at pp. 1, 3. 11. Since the time of purchase of the mobile home, Harris Savings Bank was renamed "Waypoint Bank" in October 2000, and subsequently was acquired by Sovereign Bank in February 2005. See correspondence from Heather Birch, Banking Officer, Sovereign Bank, a true and correct copy of which is attached hereto marked as Exhibit "C" and made a part hereof. 12. On or about December 11, 2007, Plaintiffs satisfied the loan held by Sovereign Bank for the purchase of the mobile home. See correspondence from Sharon Kegerise, Banking Officer, Sovereign Bank, dated April 1, 2008, a true and correct copy of which is attached hereto marked as Exhibit "D" and made a part hereof, and correspondence from Linda Sunday of the Sovereign Bank Consumer Loan Servicing Center, dated April 1, 2008, a true and correct copy of which is attached hereto marked as Exhibit "E" and made a part hereof. 13. On or about May 2008, Plaintiffs reached an agreement with Tom Sokol and Tasha Sokol to sell the mobile home for $8,500.00. 14. However, Plaintiffs subsequently discovered that title to the mobile home was still subject to a lien held by Security Pacific Housing Services, Inc. (now Bank of America) which was obtained by Ms. Singer. 15. Through communications with counsel for Defendant Audubon Park, William A. Duncan, Esquire, Plaintiffs discovered that Security Pacific Housing Services, Inc. was still listed as a lien holder on Pennsylvania Department of Transportation records. See Pennsylvania Department of Transportation Vehicle Record Abstract, dated May 7, 2008, a true and correct copy of which is attached hereto marked as Exhibit "I"' and made a part hereof. 16. Plaintiffs were unable to clear the lien on the title, and as a result, lost their ability to sell the mobile home to the Sokols for $8,500.00. 17. At the time Plaintiffs entered into the contract to purchase the mobile home from Defendant, they were not made aware by Defendant that clear title to the mobile home had not been obtained and transferred to them. 18. To the contrary, at the time Plaintiffs entered into the contract to purchase the mobile home from Defendant, they were under the impression that Defendant had good, marketable title to the mobile home, and that Defendant was transferring title to the mobile home free of any lien or encumbrance. COUNT I: BREACH OF WARRANTY PURSUANT TO 13 Pa.C.S.A. § 2312 19. Paragraphs 1-18 of this Complaint are incorporated by reference as fully set forth herein. 20. Defendant did not at any time notify or represent to Plaintiffs that Defendants were transferring title to the mobile home subject to the lien held by Security Housing Services, Inc. 21. Pennsylvania law requires the seller of goods to transfer good title, free of liens and encumbrances, to the buyer of goods. 13 Pa.C.S.A. § 2312 states: (a) General rule.--Subject to subsection (b) there is in a contract for sale a warranty by the seller that: (1) the title conveyed shall be good, and its transfer rightful; and (2) the goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge. (b) Exclusion or modification of warranty.--A warranty under subsection (a) will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have. (c) Warranty of merchant regularly dealing in goods.--Unless otherwise agreed a seller who is a merchant regularly dealing in goods of the kind warrants that the goods shall be delivered free of the rightful claim of any third person by way of infringement or the like but a buyer who furnishes specifications to the seller must hold the seller harmless against any such claim which arises out of compliance with the specifications. 22. Accordingly, Defendant had a duty at the time of Plaintiffs' purchase of the mobile home to ensure that they were transferring title to the mobile home free of any encumbrance or lien. 23. Since discovering that title to the mobile home was encumbered, Plaintiffs have repeatedly requested through counsel that Defendant, Audubon Park take measures to ensure that the Security Pacific Housing Services, Inc. lien has been satisfied, and have the lien removed from the Pennsylvania Department of Transportation (herein after referred to as "PennDOT") records as a lien holder. 24. However, to date, Defendant, Audubon Park, has repeatedly denied that it is their obligation to transfer good title free of encumbrances or liens. 25. Moreover, Defendant has failed to take any steps to ensure that the Security Pacific Housing Services, Inc. lien is removed from the title to the mobile home, or provide Plaintiffs with bank records or other documentation indicating that the Security Pacific Housing Services, Inc. lien was satisfied, thus allowing Plaintiffs to have the Security Pacific Housing Services, Inc. lien removed from the title. WHEREFORE, Plaintiffs, Bradley Kellogg and Patricia Kellogg, respectfully request this Honorable Court enter and order: A. Directing Defendant, Audubon Park, to satisfy any debt(s) encumbering title to the mobile home; B. Directing Defendant, Audubon Park, to immediately take all steps necessary to have all liens and/or encumbrances removed from the title to the mobile home; and C. Directing Defendant, Audubon Park, to pay Plaintiffs, Bradley Kellogg and Patricia Kellogg, for all the reasonable attorneys' fees, costs and expenses incurred in filing and prosecuting this action. COUNT II: VIOLATION OF PENNSYLVANIA UNFAIR TRADE PRACTICES ACT, PURSANT TO 73 P.S. § 201-9.2 26. Paragraphs 1-25 are incorporated by reference as fully set forth herein. 27. Defendant, Audubon Park, is a duly licensed mobile home dealer under the vehicle manufactures, dealers and salesperson act, known as the Board of Vehicles Act, which can be found at 63 P.S. § 818.1, et seq. 28. Furthermore, Defendant, Audubon Park, held a license under the Motor Vehicles Sales Finance Act, which can be found at 69 P.S. § 601, et seq. 29. The term "mobile homes" is defined at 75 Pa.C.S.A. § 102, which states: "Mobile home." A trailer designed and used exclusively for living quarters or commercial purposes which exceeds the maximum size limitations prescribed by this title for operation on a highway and is only incidentally operated on a highway. 30. Anna Hollinger, the agent of Defendant, Audubon Park, is a duly licensed sales person under the Board of Vehicles Act. 31. Anna Hollinger was the salesperson who signed the Sales Contract and Retail Installment Contract and Security Agreement on behalf of the licensed Dealer, Defendant, Audubon Park. 32. Defendant, Audubon Park, sold a mobile home to Plaintiffs using the buyer's order which is attached hereto marked as Exhibit "A". 33. Furthermore, Defendant, Audubon Park, contracted a financing source and provided a loan to Plaintiffs for the purchase of the mobile home. 34. Previously, Security Pacific Housing Services, Inc. provided a loan to Ms. Singer when Ms. Singer owned the mobile home prior to its sale to Plaintiffs. 35. Security Pacific Housing Services, Inc. should have received a title to the mobile home as a condition of financing. 36. Title should have been held by Security Pacific Housing Services, Inc. until such time as the loan was satisfied or the mobile home was sold. 37. It is the responsibility of a selling dealer to fulfill any requirements of the sale, particularly ensuring that there is clear title to the mobile home at the time the mobile home is sold to a buyer. (75 Pa. Cons. Stat. § 111, 63 P.S. § 818.19) 38. When Plaintiffs purchased the mobile home, they obtained financing from Harris Savings Bank. 39. The selling agent, Defendant, Audubon Park, should have then transferred title to the mobile home to the Kelloggs and recorded the lien holder Harris Savings Bank. 40. Upon information and belief, Plaintiffs aver that Defendant, Audubon Park, never transferred title to the Kelloggs and recorded the lien holder as Harris Savings Bank. 41. In order to transfer title, the original lien needed to be satisfied to provide clear title and to record the purchase loan as a first lien. 42. The law requires a licensed mobile home dealer and Motor Vehicle Sales Finance Act license holder to maintain records and do everything necessary to legally transfer title of the vehicle being sold. 43. This requires the completion of the proper PennDot documents, the satisfaction of any liens on the previous title and the recording of the new lien on the title issued at the time of the sale to the buyers. 44. Failure to due so constitutes, at the very least, bad business practices under the dealer's license. 45. It is evident in this case that clear title was not provided by the Defendant, Audubon Park. 46. Failure to provide clear title allows a basis for rescission of the sales contract due to fraud. 47. However, the Plaintiffs did not discover the fraud until they attempted themselves to sell the mobile home privately, and demand for title was made upon them. 48. Failure to provide title is a violation of section 818.19 of the Vehicle Manufactures, Dealers and Salespersons Act (63 P.S. § 818.19) which states that it is illegal for a dealer to: (2) Make any substantial misrepresentation of material facts. (3) Make any false promise of a character likely to influence, persuade or induce the sale of a vehicle. (5) Fail or refuse to account for moneys or other valuables belonging to others which have come into his possession arising out of the sale of vehicles. (7) Commit any act or engage in conduct in connection with the sale of vehicles which clearly demonstrates unprofessional conduct or incompetence to operate as a licensee under this act. 49. Under the Board of Vehicles Act, the dealer, Defendant Audubon Park, would have been responsible for titling the mobile home. 50. Therefore, a copy of the completed PennDOT form should be available in the dealer's files. 51. Additionally, the dealer's records should contain evidence of the satisfaction of the first lien held by Security Pacific Housing Services, Inc. on the first title. 52. Lastly, the dealer's records should contain evidence of the satisfaction of the first lien regardless of whom the dealer used as their agent. 53. A violation of the Board of Vehicles Act is a violation of Pennsylvania's Unfair Trade Practices Act, hereinafter referred to as "UTPA". 54. A violation of the UTPA allows the aggrieved party to seek treble damages and attorneys fees. 73 P.S. § 201-9.2(a). 55. Defendant, Audubon Park, violated section 201-3 of the UTPA, by utilizing "Unfair Methods of Competition and Unfair or Deceptive Acts or Practices in the conduct of their trade or commerce in their dealings with Plaintiffs. 73 P.S. § 201-3. 56. Unfair Methods of Competition and Unfair or Deceptive Acts or Practices are defined at 73 P.S. § 201-2(4) to include the following: (iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by, another; (xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 57. Defendant, Audubon Park, could have contacted the successors to Security Pacific Housing Services, Inc. to obtain documentation that the lien had been marked satisfied and the title cleared, by way of a Title Release Letter or No Interest Letter. 58. However, Defendant Audubon Park, has steadfastly refused to take the measures necessary to have the title to Plaintiffs' mobile home cleared, even though they are obligated to due so under the Motor Vehicle Manufactures, Dealers and Salesperson Act and their Motor Vehicle Sales Finance Act License. As Defendant Audubon Park, had a duty to ensure Plaintiffs obtain clear title to the mobile home, failed to due so, and now continue to frustrate Plaintiffs' efforts to obtain clear title so that they may sell the mobile home, Defendants have engaged in Unfair Methods of Competition and Unfair or Deceptive Acts or Practices under section 201- 2(4) of the UTPA. 59. As a result of Defendant Audubon Parks' actions, Plaintiffs have suffered damages from their inability to sell the mobile home in May of 2008. Additionally, Plaintiffs have suffered damages in the amount of $200.00 per month in lot rent from May 2008 until the present, utilities in the approximate amount of $120.00 per month from May 2008 until the present, and insurance in the amount of $350.00, all of which they would not have had to pay had they been able to sell the mobile home in May 2008. WHEREFORE, Plaintiffs Bradley Kellogg and Patricia Kellogg, respectfully request this Honorable Court award them treble damages and attorneys fees pursuant to the Pennsylvania Unfair Trade Practices Act. Respectfully submitted, garet M. tuski, Esquire Attorney for Plaintiff PA Supreme Court ID #: 42478 61 W. Louther Street Carlisle, PA 17013 (717) 249-1177 VERIFICATION I, Patricia Kellogg, verify that the statements made in the foregoing pleading are true and correct. I understand that false statements herein are subject to the penalties of 18 Pa.C.S.A. § 4904 related to unsworn falsification. Date: ,5/2-q/09 Patricia Kellog VERIFICATION I, Bradley Kellogg, verify that the statements made in the foregoing pleading are true and correct. I understand that false statements herein are subject to the penalties of 18 Pa.C.S.A. § 4904 related to unworn falsification. Date: > / Z-4 O I radley Kello IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL DIVISION - LAW BRADLEY KELLOGG AND CIVIL ACTION PATRICIA KELLOGG, Plaintiffs NO. VS. AUDUBON PARK, Defendant CERTIFICATE OF SERVICE I, Margaret M. Stuski, hereby certify that I have served the foregoing document upon all parties of record in this proceeding in accordance with the requirements of § 33.32 (relating to service by a participant) on the following: Audubon Park 84 Audubon Park Dillsburg, PA 17019 et M. Sktiski, Es ire Attorney for Defendant PA Supreme Court ID #: 42478 61 W. Louther St. Carlisle, PA 17013 (717) 249-1177 OF Tk r qY 2009 [1i5 t i i i 4 l) r, ? ? day k& '4,j6- 7 t1l Sheriffs Office of Cumberland County R Thomas Kline tr dt ulu?irr/ Edward L Schorpp Sheri ('160 C' I k Solicitor A ,`' Y Ronny R Anderson " Jody S Smith Chief Deputy OFFICE Or I $11LRIEF Civil Process Sergeant Bradley Kellogg vs. Audubon Park SHERIFF'S RETURN OF SERVICE Case Number 2009-3481 05/28/2009 R. Thomas Kline, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Audubon Park, but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of York County, PA to serve the within Complaint and Notice according to law. 06/04/2009 04:31 PM - York County Return: And now June 4, 2009 at 1631 hours I, Richard P. Keuerleber, Sheriff of York County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint, upon the within named defendant, to wit: Audubon Park by making known unto Anna L. Hollinger, Manager at 32 Audubon Park Dillsburg, PA 17019 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.44 June 23, 2009 I I rlll.? 7 -7 47 s {f C I-T-7 COUNTY OF YORK OFFICE OF THE SHERIFF 45 N. GEORGEST., YORK, PA 17401 11 . SERVICE CALL (717) 771-9601 SHERIFF SERVICE WSTFMCT ONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY L 1 THIRU 12 DO NOT DETACH ANY COPES 1 PLAINTIFF/S/ BRADLEY & PATRICIA KELLOGG 3. DEFENDANTIS/ AUDUBON PARK SERVE 5 E OF INDIVIDUAL, C PANY, GO" RATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED. ATTACHED, OR SOLD AUDU190N PARK 6. ADDRESS (STREET OR R WI UMBER, APT NO, CITY, BORO, TWP, STATE AND ZIP CODE) AT DILLSBURG, PA 17019 7. INDICATE SERVICE' 0 PERSONAL 4 PERSON IN CHARGE V DEPUTIZE -t CERT MAIL U 1 ST CLASS MAIL U POSTED U OTHER NOW MAY 28 2009 I, SHERIFF bfV6WktbUNTY, PA, do hereby deputize the sheriff of YORK COUNTY to execute thi a fe return theofording to taw. This deputization being made at the request and risk of the plaintiff. - r +• SHERIFF SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE OUT OF CC CUMBERLANZ: ADV FEE; PAID BY ALLIED ATT OF CENTRAL PA NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss. destruction. or removal of any property before sheriffs sale thereof 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE MARGARET M. STUSKI, ESQ. 10. TELEPHONE NUMBER I11 DATE FILED 17-249-1177 105/27/2009 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW. (This area must be completed if notice is to be mailed) CUMBERLAND COUNTY SHERIFF'S OFFICE CUMBERLAND CG SHERIFF SPACE SMOW FOR USE THE SHERIFF - DO NOT WfM SLAW TM LM 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15 Expiration/Hearing Date or complaint as indicated above. MJ MCGILL YCSO 5-29-09 6-26-09 16. HOW SERVED: PERSONAL ( ) RESIDENCE ( ) POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER (fir SEE REMARKS BELOW 17. O I hereby certiN and return a NOT FOUND because I am unable to locate the individual, company, etc named above. (See remarks below.) _1?2 1 TITLE OF INDIVIDUAL SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19 Date of Service r V-0.9 20 Ti o A MPTS Date Time M?l r nt. T ate Time Miles Int Date Time Miles Int Dale Time Miles Int. Date Time M s In T. Date Time Miles Int. 22. KIcMAKRJ: 23. Advance Costs 24 Service Costs 25 NIF 26. Mileage 27. Postage 26 Sub Total 29. Pound 30 Notary 31. Surchg. 32 Tot. Costs 33 Costs Due Refund Check No $100 00 t 001 n A0 J 76 . . 14, , , U. ForN9n County Costs 35. Advance Costs 36 Service costs 37 Notary Cert. 38; MileageJPOStage/Np( Found 39. Total Costs 40 Costs Due or Refund 18th JfO ANSWERS 41. AFFIRMED and subscribed to re me t 44. Signature of OA 42day of Dep. 4 /NOTARY t 46. Signature of i /?? 4V 0 E it. i PUBLIC ! L _ County Sherrlf RICHARD P HE IF EB ` ?fJ 6-18-09 J?-'NTY . , ` AUG. 12, 2009 46 Signature of Foreign 49 DATE County Sheriff 2 COURT NUMBER 2009-3481 CIVIL 4 1yeE Ur vvRli UH COMPLAi N 'NOTICE,CICA COMPLAINT AND NOTICE 50. 1 ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE 1 51 DATE RECEIVED OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. WHITE - Isswng Authority 2. PINK - Attorney 3. CANARY -Sheriff's Office 4. BLUE - Sheriffs Office Duncan & Hartman, P.C. William A. Duncan, Esquire 1 Irvine Row, Carlisle, Pennsylvania 17013 717.249.7780 717.249-7800 FAX Attorney ID 22080 BRADLEY KELLOGG and PATRICIA KELLOGG, Plaintiffs vs. AUDUBONPARK Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 09-3481 CIVIL TERM PRELIMINARY OBJECTIONS Defendant Audubon Park, by and through its attorney, William A. Duncan, makes the following preliminary objections to Plaintiffs Complaint: 1. Plaintiffs Complaint is legally insufficient in that Exhibits "A" through " attached to the original Complaint, nor were they attached to the true copy which the Defendant by the York County Sheriff. 2. Because of the failure of Plaintiffs to include the Exhibits, Defendant is properly defend itself against Plaintiffs' allegations. 3. Plaintiffs have failed to exercise or exhaust a statutory remedy in that form of action to obtain title called an involuntary transfer of ownership vehicle ( home) by court order. were not served on to exists a 4. Plaintiffs have failed to exercise or exhaust a non-statutory remedy in thatlthey could contact the prior owner, Theresa Singer, to obtain a vehicle power-of-attorney in order to secure the new title in their names and to file the letter of satisfaction with the Department of Motor Vehicles. WHEREFORE, Defendant prays this Honorable Court dismiss the Plaintiffs[ Complaint on the grounds on legal insufficiency and failure to exhaust the available remedies. Respectfully submitted, William A. Duncan, Esquire Attorney for Defendant Audub n Park 1 Irvine Row, Carlisle, PA 170'3 Attorney ID# 22080 717-249-7780 BRADLEY KELLOGG and PATRICIA KELLOGG, vs. AUDUBONPARK Dated: Plaintiffs Defendant IN THE COURT OF COMMON Pf CUMBERLAND COUNTY, PENN CIVIL ACTION NO. 09-3481 CIVIL TERM CERTIFICATE OF SERVICE I, William A. Duncan, hereby certify that I have served the foregoing Objections by mailing a copy to the Plaintiffs' attorney by pre-paid, U.S. following address: Margaret M. Stuski, Esquire 61 W. Louther Street Carlisle, PA 17013 OF VANIA to the r William A. Duncan, Esquire Attorney for Defendant Audubon Park 1 Irvine Row, Carlisle, PA 1701 Attorney ID# 22080 717-249-7780 nr T?.i , ? r;i?yr 9 I? .11 r... MARGARET M. STUSKI, ESQUIRE STEPHANIE E. CHERTOK, ESQUIRE PA Supreme Court ID #: 42478 PA Supreme Court ID #: 52651 61 West Louther Street 61 West Louther Street Carlisle, PA 17013 Carlisle, PA 17013 (717) 249-1177 (717) 249-1177 (717) 249-4514 Fax (717) 249-4514 Fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW BRADLEY KELLOGG AND CIVIL ACTION PATRICIA KELLOGG, : Plaintiffs vs. AUDUBON PARK, Defendant NO. 09-3481 NOTICE TO DEFEND 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 OR 800) 990-9108 MARGARET M. STUSKI, ESQUIRE STEPHANIE E. CHERTOK, ESQUIRE PA Supreme Court ID #: 42478 PA Supreme Court ID #: 52651 61 West Louther Street 61 West Louther Street Carlisle, PA 17013 Carlisle, PA 17013 (717) 249-1177 (717) 249-1177 (717) 249-4514 Fax (717) 249-4514 Fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW BRADLEY KELLOGG AND CIVIL ACTION PATRICIA KELLOGG, : Plaintiffs vs. AUDUBON PARK, Defendant NO. 09-3481 AMENDED COMPLAINT Plaintiffs are Bradley Kellogg and Patricia Kellogg, husband and wife, who currently reside at 1615 Walnut Bottom Road, Newville, Cumberland County, Pennsylvania 17241. 2. Defendant is Audubon Park, who has its principal place of business at 84 Audubon Park, Dillsburg, York County, Pennsylvania 17019. 3. Defendant Audubon Park is a licensed mobile home dealer. 4. At the time of the activities complained of Audubon Park held a license with the Commonwealth of Pennsylvania as a Motor Vehicle Sales Act license 5. On or about December 4, 1995, Plaintiffs entered into a contract with Audubon Park for the purchase of a 1992 Skyline Royal Cove mobile home, serial number 13110385D. A true and correct copy of the sales contract is attached hereto marked as Exhibit "A" and made a part hereof. 6. The total cash purchase price of the mobile home was nineteen thousand nine hundred sixty dollars ($19,960.00). 7. The sales contract lists Anna Hollinger, an agent of Audubon Park, as the salesperson. See Exhibit "A". 8. The mobile home was previously owned by Theresa Singer, and was subject to a loan secured by the mobile home, and held by Security Pacific Housing Services, Inc., which is now owned by Bank of America. 9. In order to facilitate the purchase of the mobile home, Plaintiffs entered into a Retail Installment Contract and Security Agreement with Audubon Park on December 4, 1995. A true and correct copy of the Retail Installment Contract and Security Agreement is attached hereto marked as Exhibit "B" and made a part hereof. 10. On page three (3) of the Retail Installment and Security Agreement, it states that the contract and security agreement is assigned to Harris Savings Bank, 2nd and Pine Streets, Harrisburg, Pennsylvania 17105, which is the lending institution which financed the Plaintiffs' purchase of the mobile home. 11. The Retail Installment Contract and Security Agreement lists Audubon Park as the "Seller". 12. Anna L. Hollinger, an agent of Audubon Park, signed the Retail Installment Contract and Security Agreement, and is listed as the "Salesperson." See Exhibit "B" at pp. 1, 3. 13. Since the time of purchase of the mobile home, Harris Savings Bank was renamed "Waypoint Bank" in October 2000, and subsequently was acquired by Sovereign Bank in February 2005. See correspondence from Heather Birch, Banking Officer, Sovereign Bank, a true and correct copy of which is attached hereto marked as Exhibit "C" and made a part hereof. 14. On or about December 11, 2007, Plaintiffs satisfied the loan held by Sovereign Bank for the purchase of the mobile home. See correspondence from Sharon Kegerise, Banking Officer, Sovereign Bank, dated April 1, 2008, a true and correct copy of which is attached hereto marked as Exhibit "D" and made a part hereof, and correspondence from Linda Sunday of the Sovereign Bank Consumer Loan Servicing Center, dated April 1, 2008, a true and correct copy of which is attached hereto marked as Exhibit "B" and made a part hereof. 15. On or about May 2008, Plaintiffs reached an agreement with Tom Sokol and Tasha Sokol to sell the mobile home for $8,500.00. 16. However, Plaintiffs subsequently discovered that title to the mobile home was still subject to a lien held by Security Pacific Housing Services, Inc. (now Bank of America) which was obtained by Ms. Singer. 17. Through communications with counsel for Defendant Audubon Park, William A. Duncan, Esquire, Plaintiffs discovered that Security Pacific Housing Services, Inc. was still listed as a lien holder on Pennsylvania Department of Transportation records (hereinafter PennDOT). See PennDOT Vehicle Record Abstract, dated May 7, 2008, a true and correct copy of which is attached hereto marked as Exhibit "F" and made a part hereof. 18. Plaintiffs were unable to clear the lien on the title, and as a result, lost their ability to sell the mobile home to the Sokols for $8,500.00. 19. At the time Plaintiffs entered into the contract to purchase the mobile home from Defendant, they were not made aware by Defendant that clear title to the mobile home had not been obtained and transferred to them. 20. To the contrary, at the time Plaintiffs entered into the contract to purchase the mobile home from Defendant, they were under the impression that Defendant had good, marketable title to the mobile home, and that Defendant was transferring title to the mobile home free of any lien or encumbrance. COUNT I: BREACH OF WARRANTY PURSUANT TO 13 Pa.C.S.A. § 2312 21. Paragraphs 1-18 of this Complaint are incorporated by reference as fully set forth herein. 22. Defendant did not at any time notify or represent to Plaintiffs that Defendants were transferring title to the mobile home subject to the lien held by Security Housing Services, Inc. 23. Pennsylvania law requires the seller of goods to transfer good title, free of liens and encumbrances, to the buyer of goods. 13 Pa.C.S.A. § 2312 states: (a) General rule.--Subject to subsection (b) there is in a contract for sale a warranty by the seller that: (1) the title conveyed shall be good, and its transfer rightful; and (2) the goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge. (b) Exclusion or modification of warranty.--A warranty under subsection (a) will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have. (c) Warranty of merchant regularly dealing in goods.--Unless otherwise agreed a seller who is a merchant regularly dealing in goods of the kind warrants that the goods shall be delivered free of the rightful claim of any third person by way of infringement or the like but a buyer who furnishes specifications to the seller must hold the seller harmless against any such claim which arises out of compliance with the specifications. 24. Accordingly, Defendant had a duty at the time of Plaintiffs' purchase of the mobile home to ensure that they were transferring title to the mobile home free of any encumbrance or lien. 25. Since discovering that title to the mobile home was encumbered, Plaintiffs have repeatedly requested through counsel that Defendant, Audubon Park take measures to ensure that the Security Pacific Housing Services, Inc. lien has been satisfied, and have the lien removed from the Pennsylvania Department of Transportation (herein after referred to as "PennDOT") records as a lien holder. 26. However, to date, Defendant, Audubon Park, has repeatedly denied that it is their obligation to transfer good title free of encumbrances or liens. 27. Defendant, Audubon Park, failed to take any steps to ensure that the Security Pacific Housing Services, Inc. lien is removed from the title to the mobile home, or provide Plaintiffs with bank records or other documentation indicating that the Security Pacific Housing Services, Inc. lien was satisfied, thus allowing Plaintiffs to have the Security Pacific Housing Services, Inc. lien removed from the title. 28. Plaintiffs through their counsel researched and obtained a lien release letter from the successor bank to Security Pacific Housing Services. 29. Defendant, Audubon Park, refuses to assist in now transferring the title to the Plaintiffs. WHEREFORE, Plaintiffs, Bradley Kellogg and Patricia Kellogg, respectfully request this Honorable Court enter and order: A. Plaintiffs seek attorney fees and cost for obtaining lien release in excess of $2,500.00 to date. B. COUNT II: VIOLATION OF PENNSYLVANIA UNFAIR TRADE PRACTICES ACT, PURSANT TO 73 P.S. § 201-9.2 30. Paragraphs 1-29 are incorporated by reference as fully set forth herein. 31. Defendant, Audubon Park, is a duly licensed mobile home dealer under the vehicle manufactures, dealers and salesperson act, known as the Board of Vehicles Act, which can be found at 63 P. S. § 818.1, et seq. 32. Furthermore, Defendant, Audubon Park, held a license under the Motor Vehicles Sales Finance Act, which can be found at 69 P.S. § 601, et seq. 33. The term "mobile homes" is defined at 75 Pa.C.S.A. § 102, which states: "Mobile home." A trailer designed and used exclusively for living quarters or commercial purposes which exceeds the maximum size limitations prescribed by this title for operation on a highway and is only incidentally operated on a highway. 34. Anna Hollinger, the agent of Defendant, Audubon Park, is a duly licensed sales person under the Board of Vehicles Act. 35. Anna Hollinger was the salesperson who signed the Sales Contract and Retail Installment Contract and Security Agreement on behalf of the licensed Dealer, Defendant, Audubon Park. 36. Defendant, Audubon Park, sold a mobile home to Plaintiffs using the buyer's order which is attached hereto marked as Exhibit "A". 37. Furthermore, Defendant, Audubon Park, contracted a financing source and provided a loan to Plaintiffs for the purchase of the mobile home. 38. Previously, Security Pacific Housing Services, Inc. provided a loan to Ms. Singer when Ms. Singer owned the mobile home prior to its sale to Plaintiffs. 39. Security Pacific Housing Services, Inc. should have received a title to the mobile home as a condition of financing. 40. Title should have been held by Security Pacific Housing Services, Inc. until such time as the loan was satisfied or the mobile home was sold. 41. It is the responsibility of a selling dealer to fulfill any requirements of the sale, particularly ensuring that there is clear title to the mobile home at the time the mobile home is sold to a buyer. (75 Pa. Cons. Stat. § 111, 63 P.S. § 818.19) 42. When Plaintiffs purchased the mobile home, they obtained financing from Harris Savings Bank. 43. The selling agent, Defendant, Audubon Park, should have then transferred title to the mobile home to the Kelloggs and recorded the lien holder Harris Savings Bank. 44. Upon information and belief, Plaintiffs aver that Defendant, Audubon Park, never transferred title to the Kelloggs and recorded the lien holder as Harris Savings Bank. 45. In order to transfer title, the original lien needed to be satisfied to provide clear title and to record the purchase loan as a first lien. 46. The law requires a licensed mobile home dealer and Motor Vehicle Sales Finance Act license holder to maintain records and do everything necessary to legally transfer title of the vehicle being sold. 47. To transfer title to a mobile home, PennDOT requires that a form MV4st be filed. 48. PennDOT requires that only an authorized agent or dealer fill out a form MV4st transfer of title for it to be filed properly, 75 Pa.C.S. § 1111. 49. PennDOT also requires that a dealer use a Secure Power of Attorney when a title is encumbered by a lien holder. 50. This requires the completion of the proper PennDOT documents, the satisfaction of any liens on the previous title and the recording of the new lien on the title issued at the time of the sale to the buyers. 51. Failure to due so constitutes, at the very least, bad business practices under the dealer's license. 52. It is evident in this case that clear title was not provided by the Defendant, Audubon Park. 53. Failure to provide clear title allows a basis for rescission of the sales contract due to fraud. 54. However, the Plaintiffs did not discover the fraud until they attempted themselves to sell the mobile home privately, and demand for title was made upon them. 55. Failure to provide title is a violation of section 818.19 of the Vehicle Manufactures, Dealers and Salespersons Act (63 P.S. § 818.19) which states that it is illegal for a dealer to: (2) Make any substantial misrepresentation of material facts. (3) Make any false promise of a character likely to influence, persuade or induce the sale of a vehicle. (5) Fail or refuse to account for moneys or other valuables belonging to others which have come into his possession arising out of the sale of vehicles. (7) Commit any act or engage in conduct in connection with the sale of vehicles which clearly demonstrates unprofessional conduct or incompetence to operate as a licensee under this act. 56. Under the Board of Vehicles Act, the dealer, Defendant Audubon Park, would have been responsible for titling the mobile home. 57. Therefore, a copy of the completed PennDOT form should be available in the dealer's files. 58. Additionally, the dealer's records should contain evidence of the satisfaction of the first lien held by Security Pacific Housing Services, Inc. on the first title. 59. Lastly, the dealer's records should contain evidence of the satisfaction of the first lien regardless of whom the dealer used as their agent. 60. PennDOT requires that only an authorized agent or dealer fill out a form MV4st transfer of title for it to be filed properly, 75 Pa.CS. § 1111. 61. It was Audubon Park's obligation to obtain the Secure Power of Attorney to ensure completion of its end of the transfer. 62. Audubon Park failed to obtain the Secure Power of Attorney. 63. Audubon Park failed to complete a form MV4st. 64. There is a judicial process to obtain title, however, in this case, Plaintiffs counsel has the lien release letter. 65. Plaintiffs counsel researched who was the successor to Security Pacific by calling the Department of Banking and Office of the Comptroller. 66. Plaintiff s counsel found the successor bank and asked them to provide a release of lien letter. 67. Plaintiffs counsel followed up with them and received the lien release letter. 68. Plaintiffs counsel obtained the form for a duplicate title and sent it to the former owner, who signed the form, had the signature notarized, and returned the form to Plaintiffs counsel. 69. Plaintiff has the lien holder release but does not have the dealer to complete the transaction. 70. A violation of the Board of Vehicles Act is a violation of Pennsylvania's Unfair Trade Practices Act, hereinafter referred to as "UTPA". 71. A violation of the UTPA allows the aggrieved party to seek treble damages and attorneys fees. 73 P.S. § 201-9.2(a). 72. Defendant, Audubon Park, violated section 201-3 of the UTPA, by utilizing "Unfair Methods of Competition and Unfair or Deceptive Acts or Practices in the conduct of their trade or commerce in their dealings with Plaintiffs. 73 P.S. § 201-3. 73. Unfair Methods of Competition and Unfair or Deceptive Acts or Practices are defined at 73 P.S. § 201-2(4) to include the following: (iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by, another; (xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 74. Defendant, Audubon Park, could have contacted the successors to Security Pacific Housing Services, Inc. to obtain documentation that the lien had been marked satisfied and the title cleared, by way of a Title Release Letter or No Interest Letter. 75. However, Defendant Audubon Park, has steadfastly refused to take the measures necessary to have the title to Plaintiffs' mobile home cleared, even though they are obligated to due so under the Motor Vehicle Manufactures, Dealers and Salesperson Act and their Motor Vehicle Sales Finance Act License. As Defendant Audubon Park, had a duty to ensure Plaintiffs obtain clear title to the mobile home, failed to due so, and now continue to frustrate Plaintiffs' efforts to obtain clear title so that they may sell the mobile home, Defendants have engaged in Unfair Methods of Competition and Unfair or Deceptive Acts or Practices under section 201- 2(4) of the UTPA. 76. As a result of Defendant Audubon Parks' actions, Plaintiffs have suffered damages from their inability to sell the mobile home in May of 2008. Additionally, Plaintiffs have suffered damages in the amount of $200.00 per month in lot rent from May 2008 until the present, utilities in the approximate amount of $120.00 per month from May 2008 until the present, and insurance in the amount of $350.00, all of which they would not have had to pay had they been able to sell the mobile home in May 2008. WHEREFORE, Plaintiffs Bradley Kellogg and Patricia Kellogg, respectfully request this Honorable Court award them treble damages and attorneys fees pursuant to the Pennsylvania Unfair Trade Practices Act. Respectfully submitted, ;argaret M. 5tuski, Esquire Attorney for Plaintiff PA Supreme Court ID #: 42478 61 W. Louther St. Carlisle, PA 17013 (717) 249-1177 VERIFICATION I hereby state that I am the attorney for the Plaintiff in this matter, that Plaintiff is outside the jurisdiction of the Court and/or the verification could not be obtained within the time allowed for the filing of the pleading, that I am authorized to make this verification pursuant to Pa.R.C.P. 1024(c), and that the statements made in the foregoing Complaint is based upon information supplied by Plaintiff and is true and correct to the best of my knowledge, information, and belief. Furthermore, counsel intends to substitute a verification from Plaintiff upon receipt. The undersigned understands that this statement is made subject to the penalties of 18 Pa.C.S. Sec. 4904 relating to unsworn falsifications to authorities. orney for' laintiff DATE: 17-1 y EXHIBIT "A" rt?FI tit { In ubi contract the wards, ! E" and ktY:refer #a' SSIect to tho Buyer and Ga E _" signirco °th#s COritraCt. The word. 1rQU and YOUR refer to the Flee€er. the terms and co one ars both std_s of this oF,.nent ircc. a roll is sdP' and I s roc to urc ass the a Tor €r 0 described unit. BUYER(S) I • Y /?" /f ' -- - /F' PHONE, / ADDRESS DATE f s f: , c -SALESPERSON=S ` DELIVERY ADDRESS MAKE & MODEL - YEAR BD ROOMS FLOOR SIZE HITCH SIZE STOCK NUMBER SERIAL NUMBER" rr W L) wr` COLOR - PROPOSED DELIVERY DATE KEY NUMBERS NEW SED OPTIONAL EQUIPMENT, LABOR- AND ACCESSORIES BASE PRICE OF UNIT 4 isLa? #'•; f r1 s. !?k °Y€ r i f ' € ? `F To _MI E. $ OPTIONAL-EQUIPMENT - x 't`zf r E?-mot:;jr`.? i tv` er d Cost of Parts and Set-up -3 ?.e??.' i F t C f°" PRA. ?'. r r _ °V??'. ?••S I f ? ?' i'...;_ % Lam- SLi SUB-TOTAL $ SALES TAX =ti " l ` 'NON-TAXABLE 1TEIVIS f VARIOUS FEES AND INSURANCE k I. .CASH PURCHASE PRICE rte?'' ?-• • f , E• „r!f ; -TRADE-IN ALLOWANCE - LESS -BAL. DUE on above $ ` f. ; NET ALLOWANCE $ CASH DOWN PAYMENT `r CASH AS AGREED SEE REMARKS $ MWIN 2. LESS TOTAL CREDITS T ? °' --' SALES TAX If Not Included Above' 3. U.n aid Balance of,Cash Sale, Price WORKSHEET. THIS IS .NOT PART OF YOUR CONTRACT. ALL FIGURES ARE ESTIMATES. THEY _DO.NOT CONSTITUTE AN AGREEMENT.. FOR CREDIT. A. OTHER CHARGES, , VSIOrPMI Insurance on Commodity S :: - Credit Life Insurance $. - .' Cradrt Accident &Nealth $ .. -: Taees.(Not incl.-above) .. , . -.... g - - License Fees : -, . - :.... g REMARKS: Title Fees ... g - - - -. Registration Fees .... __ .. g - - - (Total) S B.:' UNPAID BALANCE-AMOUNT FINANCED The amount of credit provided to you or on ?4ur,be Al, BALANCE CARRIED TO OPTIONAL EQUIPMENT $ ANNUAL PERCENTAGE RATE % NOTE: WARRANTY AND EXCLUSIONS AND LIMITATIONS OF DAMAGES ON THE REVERSE SIDE, The cost of your credit as a yearly rate DESCRIPTION OF TRADE-IN YEAR SIZE C. FINANCE CHARGE MAKE MODEL _ BEDROOMS X The.dollar.amount the credit will cost you. g TITLE NO. - - SERIAL NO. COLOR D. TOTAL OF PAYMENTS The amount youwilf'have paid.: when you have AMOUNT OWING TO WHOM made_ all scheduled payments. (B+C) .. g - E..TOTAL SALE PRICE ANY DEBT I OWE ON THE TRADE-IN IS TO BE PAID BY El YOU El ME The total cost of your purchase on credit, includ- S You and I certify that the.additional terms and conditions printed on the "other side: of this contract are ag• S fng your down payment of reed to,as; a part of this agreement, the same as H printed above :the signatures. I am purchasing the de. $ scribed trailer,' manufactured home or vehicle; the options] equipment-and accessories, the .insurance :as de-, Payable in .. ... . monthly installments of s each scribed has been voluntary; that my trade-in is free from all claims whatsover,. except noted. - and one final installment of $ ... r THIS AGREEMENT CONTAINS THEENTIREIJNDERSTANDNG aETWEENYOU MD.ME AND ND OTHER REPRESENTATION OR INDUCEUENr, VERBAL O:RiVRITTEN, HAS BEEN MADE WHICIf (SNOT CONTAINED INTHIS CONiRACE - L OR WE.-.ACKNOWLEDGE . RECEIPT OF A COPY: OF THIS ORDER AND THAT 'I OR WE HAVE READ AND UNDERSTAND THE BACK OF THIS AGREEMENT A.--`r / f SIGNED X- =`° - :n d .•c`",.->;, ?, ""s BUYER f PAPUK- Not Valid Unless Signed and Accepted by an officer of the Company DEALER - SOCIAL. SECURITY_)VO jr- B SIGNED X ._ .. C' BUYER By - APp'roved --t - SOCIAL SECURITY NO. Q R 9 STA N DAR D A PLAIN ight 0 1983NG9 AEN INS BUSINESS AMR MEMCOU AH, IL 62258 DUPLICATE L ?g j L L? . L f ADDITIONAL TERMS AND CONDITIONS in this contract the words me, and my refer to the Buyer and Co-Buyer signing-this contract. The words you, and your refer to the Dealer. _ I, further agree (continued from othet-side.of.contract): 1. TF NOT A: CASH TRANSACTION. -if I do not complete-this purchase as a cash transaction, I know before or at the fime-of defivery-at the unit-purchased ,.`I wilt enter into a retail installment- contract an. sign a security agreement orother-agreement as may be required to finance my purchase 2. TITLE: Title to the unit purchased will :remain in you until the agreed upon purchase price is paid in lull in cash, or I have signed a retail installment contract and it has been accepted by a bank or frnanc company, at which time title passes to me even though the actual delivery afthe unit purchased may be made at a later date. 3. TRADEaNaf t am trading-in-a- used car,;manufactured home, trailer, or other vehicle, I will give you the original bill of-sale or the title to the trade-in. I promise that any trade-in which I give is owned b mi and is free of any lien or other claim except as noted on the other side of this contract: I promise that all taxes of every kind levfed_against the trade-in have been fully paid. If any, government agency makes a ley . or ciairr tax lienor.demand-agairistthe trade-in you may, atyour option,. either pay-it-and l will reimburse you on demand. or. you may addthat-amount to-this contract as if .it-had-been originally:included.- --- REGISTRATION OR IICE{kSE,OF TRADE-iN.-ff't.have.a trade-in and.it.is_registered or_iicensed in.a.state outside of the one Yihare )hrs.orderis wrdian, 1 will im rGediatQl :have the trade in registered o you pay any and all expenses and registrationor,licensing fees required. If you handle the registration or licensing of the trade=ln, I will reimburse you for-the expense or or you may acid that amount to fills contract as it_it had been n ngrnall demand y included. - - - -5.-REAPPRAISAL-OF-TRADE-IN.-If delivered-fo yotTat the fine of-the ondinal appraise[ and it late on delivery. it appears to ou that there leave been made -in the.furnishings or-aecessories, or-in •ds general physicat-condition -you ma make a reappraisal,- Y material change; y appraisal: This later-appraisal value -will -then determine the allowance-to be made for the trade-in:-- - --- -- 6 -FAILURE TO.COMIPLETE PURCHASE.-if_I-fail or refuse-to-complete-this purchase within the-time-framespecified in this contract or-as specified in the uniform Commercial bode of file state in which sign this contract, or within an agreed upon extension of time, for any reason (other than cancellation because of any increase in price), yoiT me kee that rtfon of, ca ` - -- - -- - __Y __ _ P _ PO - y _sh _depositwhtch will, adequate); compensate you for your consequential damages, incidental damages, and all other damages, expenses or tosses which you incur because I fail to complete my purchase. I agree, however, that this contract shat -not beinterpreted as containing-a "liquidated-damages"provision lf-I have not given you a-cash deposit orit!s-inadequate and I have-given-you atrade=in you may sell the trade=in at public or private safe; "anc -deduct `fmm the money ,received. an-amount that. will. -adequately-compensate-yovIcrany orall of-the-above mentioned-damages,-expenses,-and losses incurred=because-I failed to-complete-this-purchase.. understand that you shall have all the rights of a seller upon breach of contract under the Uniform Commercial Code, except the right to seek and collect `li uidated dams es" under. Section-2- an Ie al acGo? which you b - q 9 7t8. if you;preyad ur Y 9 y ring against me or which I bring against you-:concerning this contract I agree to reimburse you for your reasonable attorneys' fees, court costs and expenses which you incur it prosecuting or defending against-that-legal action - --= - a. CHANGES BY MANUFACTURER: 1 understand that the manufacturer may make any-changes in-the model,-or designs, orany accessories-and parts from timeio-time-and-at anytime-It the manufacturer does make changes, neither you nor the manufacturer are obligated to make the same granges in the unit I am purchasing and covered by this order, either before-or afterlt is delivered to me._. 8. DELAYS. I will not hold you liable for delays caused by the manufacturer, accidents, a ikes, fires, or any other eau's-e. beyond your control. -- tr 9. INSPE171014. I have examined the product andfind-it suitable for_niy.padicuar needs. I have relied upon my own judgement and inspection in determining that it is of acceptable quality. On the special unit oider?d, f have relied on my Inspection of the display model(s) the brochures and bullef ns and/or the floor plans provided to you by the f!Aanufacturer, in making my decision to purchase the unit described on the reverse side of this agreement.- 1 - 10. ` EX?LUSIt)N OF WARRANTIES. 1 UNDERSTAND THAT-THE IMPLIED WARRAN71ES OF MERCHANTABILITY AND-FITNESS FORA PARTICULAR PURPOSE-AND ALL-OTHER 4ARRANTIES EXPRESS Ii69Pf.fED ARE EXCLUDE[}_ 6Y YdU FROM THIS7RAN$11CTION AND SHALL, NOT APPLY TC3IFiE. GOODS SOLD, 1 UNDERSTAND THAT YOU .MAKg. NO-WARRANTIES WHATSOEVER REGARDING T4E UNIT OR ANY APPLIANCE OR COMPONENT CONTAINED THEREIN, EXCEPT THAT AS MAY BE REQUIRED UNDER APPLICABLE STATE LAW. 11, O NUFACTURERS WARRANTIES. I UNDERSTAND THAT THERE MAY BE WRITTEN WARRANTIES COVERING THE UNIT PURCHASED, OR ARy' APPLIANCE(S) OR COMPONENT(S), WHICH .-HAVE BEEN PROVIDED BY, THE MANUFACTURER OF THE UNIT OR MANUFACTURER OF THE APPLIANCE(S) OR COMPONENTS. YOU WILL-GIVE APE COPIES OF ANY AND ALL WRITTEN WARRAN- -AP , TIES SUPPLIED- BY THE F1 UFACTUREfiS. tEl 11tERY BY YOu TO ± E OF THE WARRANTY- BY THE MANUFACTURER OF THE UNIT PURCHASED, OR ANY OR O0 PONENT(S) DOES NOT MEAN YOU,ADOPTTHE WARR/+NI? (S) OF SUCH-MANUFACTURER(S). I ACKNOWLEDGE THAT THESE EXPRESS WARRANTIES MADE SY THE MANUFACTURER(S) ER(S) HAVE NOT BEENI MiADE BY YOU EVEN IF THEY SAYiYOU Mh.DE THEN OR SAYIOU MADE SOME OTHER EXPRESS WARRANTY. YOU ARE NOT AN AGENT OF THE MiANUFACTURER(S) FOR WARRAN i Y PUROOS£ EVEN IF YOU COMPLETE, OR ATTEMPT TO COMPLETE REPAIRS FOR THE MANUFACTURER(S). 12. LIMITATION OF DAMAGES. I,-THEE MANUFACTURER S)' WARRANTY IS LIMITED TO-REPAIR OR REPLACEMENT NOT COMPLETED WITHIN A REASONABLE TIME OR THE MANUFACTURER(S) HAS (HAVE) GONE_OUT.OF BUSINESS, I -AGREE THAT F'I WARRANTY FAILS BECAUSE OF ATTEMPT AT REPAIR ARE ESS:AGR, HATIF f AM ENTITLED ZO_AdtY. DAMAGES AT ALL-AGAINST YOU, MY DAMAGES ARE LIMITED TO THE LESSER OF EITHER THE COST. DF NEEDED REPAIRS OR REDUCTION IN,THE MARKET VALUE OF THE UNIT CAUSED BY THE LACK OF REPAIRS. IN ANY CASE, YOU WILL NOT BE REQUIRED TO PAY ME ANY INCIDENTAL OR CQNSEQUENTIAL DAMAGES. I ALSO AGREE THAT ONCE-1-HAVE ACCEPTED THE UNIT, EVEN THOUGFI THE MANUIFAC- TURER(S)• WARRANTY DOES NOT ACCOMPLISH IT'S PURPOSE, THAT i CANNOT RETURN THE UNIT TO YOU AND SEEK A REFUND FOR AF#Y REASON. 13. INSURANCE. I understand that I am not covered by insurance on the unit purchased-until accepted byan-insurance company, and I agree to hold you harmless from any and al' claims due to loss or damage prior ie acceptance of insurance coverage by an insurance company. 14. CONTROLLING LAW AND PLACE OF SUIT. The law of-the State, in which I sign this contract is the law which is to be used in interpreting the terms of the contract. You and I agree that if an dispute between us is submitted to a court for resolution, such legal proceeding shall take place in the county in which your principle offices are located. If under state law a special dispute resolution procedure or complaint process is available, I agree to the extent Permitted by law that procedure shall be tie only method of resolution and source of remedies available to me. - 15. ONE-YEAR PERIOD OF LIMITATION. I understand and agree that-if either of us should'breach-this contract-the other of us shall have only one year, after the occurrence of that breach. in which to commence an action for a breach of this contract 16. IF PART INVALID REST OF CONTRACT SAVED. You and I agree that each portion of this contract is independent and if any paragraph or provision violates the law and is unenforceable, the rest of the contract will be valid. 17. DELIVERY AND PLACEMENT. If you have included delivery of the unit purchased in the purchase price, or if you quote a charge for delivery to my destination, your agreement to transport the unit purchased, as well as the price quotation made, is based upon my assurance that travel, is along acceptable ail-weather surfaced roads, fully open and accessible, from point of origin to point of delivery, during the period required for transportation. I assume all responsibility for the proper preparation of my property to both receive and locate the unit purchased. If you must hire extra labor and/or equipment in order to deliver and place the unit purchased because of something not previously disciosed.to you, I will pay for all those additional costs. I understand that you do not guarantee proper placement unless a concrete pier, running below the frost line, has first been prepared. I will pay for all -tabor. and material costs to re-set the unit when caused by future settling or sinking resulting from failure to provide a foundation approved by the State or Local Code in which the home is sited. I understand that the sewer must be stubbed out of the ground, the waterline must be capped and the electric line connected to a meter-pole with a proper receptacle within 20 feet of the electric box inside of the home. I understand that unless otherwise provided on the other side-.of this contract, the unit purchased is sold by .you F.O.B. your lot and am responsible for transporting it 18. CONNECTIONS, PERMITS AND CHANGES. I understand that you are not permitted to make plumbing or ei ctrical connections or connection of certain natural gas or propane appliances where state or ocal ordinance require a licensed plumber or electrician do this work. I understand that you are not responsible for obtaining health or sanitation, permits; nor for anylocaf,.county; or state permits required because of restrictive zoning. I understand that you are not. responsible for making changes to plumbing, electrical or construction changes required by special budding ordinances or laws. I will pay the costs of any changes needed for compliance with focal, county or stale laws or zoning requirements 19. NOTICE OF WIDTH LIMITATIONS. I have been informed of the length and width lim tauons, as of the, date of this contrac', now enforced in the several states, or provinces of Canada to the movement of manufactured homes over the public highways, and the fact that special permits are required. I understand that some states, orthe provinces of Canada, may not grant thesrequiredapermiits where the size exceeds the statutory maximum. I release you and your assigns, and the manufacturer and its assigns, from any and all demands, suits or counter-claims: based on the size of the unit purchased, if it exceeds the limitations which are now, or may later be, imposed by any state or province. This form is protected under Federal Copyright Laws, as filed by-Jenkins Business Forms. Any reproduction without its express written consent is subject to legal liability. Jenkins Business Forms does not give legal advice nor represent any particular legal effect as resulting from the use of this form. If the user does not understand any terms, or legal effect, see competent legal counsel. EXHIBIT "B" ' WAIVINSTALLMENT CONTRACT AND SECURITY AGREEMENT No._ Date -4. • /S! S Seller AUDUBON PARK I Buyer KELLOGG, BRADLEY A. Address 84 AUDUBON PARK DILLSBURG, PA 17019 "We" and "us" mean the Seller above, its successors and assigns. KELLOGG, PATRICIA S. Address 4 MOUNTAIN VIEW TERRACE Nl:VVVILLt:, PA 17241 "You" and "your" mean each Buyer above and guarantor; jointly and individually. SALE: You agree to purchase from us, subject to the terms and conditions of this Contract antl secunty Hgreerneni, the veRICle III ILs Year Make Model Manufacturer's Serial Numbers License No./Year 92 SKYLINE ROYAL COVE 13110385D OTHER DESCRIPTION: Size: 14x70 SECURITY: You give us a security interest in the Vehicle described above. The Vehicle shall be complete with all accessions, attachments, accessories, equipment, and proceeds of the Vehicle. The delivery and acceptance of the Vehicle is acknowledged by you. Our security interest will not extend to consumer goods that are not installed in or affixed to the Vehicle more than 10 days after we enter into this Contract with you. PROMISE TO PAY AND PAYMENT TERMS: You promise to pay us the principal amount of $ 17760.00 , plus finance charges accruing at the rate of 10.99 % per year until maturity. You agree to pay this Contract according to the payment schedule and late charge provisions shown in the TRUTH IN LENDING DISCLOSURES, and pay any additional amounts according to the terms and conditions of this Contract. After maturity, or after we have demanded payment of earned but unpaid amounts, we will, instead, earn interest at 10 .99 percent per year. DOWN PAYMENT: You also agree to pay on or before today's date the down payment of any cash, rebate and net trade-in value described on page 2. ? MINIMUM FINANCE CHARGE: We may retain a minimum finance charge of $ before we have earned that much interest. TRUTH IN LENDING DISCLOSURES if you pay off this Contract ANNUAL FINANCE CHARGE AMOUNT TOTAL OF PAYMENTS TOTAL SALE PRICE PERCENTAGE RATE The dollar amount the FINANCED The amount you will have The total cost of your The cost of your credit credit will cost you. The amount of credit paid when you have made purchase on credit, as a yearly rate. provided to you or all scheduled payments. including your down on your behalf. payment of $ 2200.00 10.99 % $ 14284.32 $ 17760.00 $ 32044.32 $ 34244.32 Payment Schedule: Your payment schedule will be Number of Payments Amount of Payments When Payments Are Due 144 $ 222.53 ^'d of each month be innin 19 G $ and each thereafter until d. Security: You are giving a security interest in the Vehicle being purchased. ® Late Charge: You will be charged 2% per month on the amount of the payment in arrears by more than 10 days. Assumption: Someone buying your home cannot assume the obligation on the original terms. Prepayment: If you pay off this Contract early, you ? may ® will not have to pay a penalty. Filing Fees $ 20.00 Contract Provisions: You can see your Contract documents for any additional information about nonpayment, default, any required repayment before the scheduled date, and prepayment refunds and penalties. If you do not meet your Contract obligations, you may lose your house, the property that you bought with this loan, or household goods and furniture, your motor vehicle, or money in your account with us. CREDIT INSURANCE: Credit life insurance and credit disability insurance are not required to obtain credit. Credit life insurance and credit disability insurance will not be provided unless you sign and agree to pay the additional cost. For First Buyer CREDIT LIFE: For Second Buyer For Both Buyers Premium: $ CREDIT For First Buyer DISABILITY: For Second Buyer I For Both Buyers Premium: $ For First Buyer For Second Buyer For Both Buyers Premium: $ Insurance Company Name and Home Office Address: I Want the Credit Insurance Specified Above: First Buyer Second Buyer PROPERTY INSURANCE: You are required by us to insure the Vehicle securing this Contract. You shall have the option of furnishing the required insurance either through existing policies of insurance owned or controlled by you or procuring and furnishing the equivalent insurance coverage through any insurance company authorized to transact business in Pennsylvania. Insurance covering risks of: 1) loss or liability related to the Vehicle, 2) the use of the Vehicle, 3) goods or services related to the Vehicle, 4) mechanical breakdowns, or a service contract or warranty is optional and not included unless checked and indicated below. LIABILITY INSURANCE: Liability insurance coverage for bodily injury and property damage caused to others is not included in this Contract unless checked and indicated below. If you get the insurance from or through us, you will pay $ for _ of coverage. The Vehicle insurance premium is calculated as follows: ? Fire-Theft and Combined Add'I. Coverage $ ? $ Deductible Comprehensive Cov. $ ? $ Deductible Collision Coverage $ ? $ ? $ ? A charge for an Extended Service Contract is added to this Contract. The Extended Service Contract sold or provided by us is: Coverage: for Term: MODERN CREDIT PROTECTION POLICY: Premium $ for of coverage. MOTOR VEHICLE (page 1 of 31 01982, 1994 Bankers Systems, Inc., St. Cloud, MN (1-800-397-2341) Form RSSIMVLAZ-PA 8/2/94 J ?` r _ . 9 ITEMIZATION OF AMOUNT FINANCED Vehicle $ 19900.00 (including accessories, delivery, services, and sales tax of $ 0.00 ? Extended Service Contract Cash Down Payment Manufacturer's Rebate Description of Trade-in Cash Price $ 2200.00 $ 0.00 Trade-in Less: Amount Owing (paid by Seller) Net Trade-in $ 0.00 $ 0.00 Down Payment Unpaid Balance of Cash Price (Cash Price less Down Payment) Paid to Public Officials- Sales Tax / Tire Tax Paid to Property Insurance Company / MCPP Paid to Credit Life Insurance Company Paid to Credit Disability Insurance Company Filing Fee / UCC To: Notary & Prep / Flood Report To: Other Charges (including Amounts Paid to Others on Your Behalf) $ 0.00 $ 19900.00 B. We, in good faith, believe that the prospect of payment or the prospect of your performance of any other of your obligations under this Contract is impaired. If you default, you agree to pay court costs we incur to collect this Contract as well as attorneys' fees if we refer this Contract for collection to an attorney. If an event of default occurs as to any one of you, we may exercise our remedies against any or all of you. REMEDIES: If you are in default on this Contract, we have all of the remedies provided by law and this Contract. A. We may require you to immediately pay us the remaining unpaid balance of the amount financed, finance charges, less any refund required by law, and all other agreed charges. B. We may pay taxes, assessments, or other liens or make repairs to the Vehicle if you have not done so. We are not required to do so. Any amount we pay will be added to the amount you owe us, will be immediately due, and will earn $ 0.00 interest from the date paid at the highest lawful contract rate permitted by law until paid in full. $ 2200.00 C. We may immediately take possession of the Vehicle by legal process or self-help, but in doing so we may not breach the peace or unlawfully enter onto your premises. We may then 1$ 17700.00 sell the Vehicle and apply what we receive as provided by $ 0.00 law to our reasonable expenses and then toward your secured obligations. $ 0.00 0.00 D. We may be entitled to a deficiency judgment against you if $ 0.00 the proceeds of the sale do not pay all of the expenses and $ 0.00 what you owe us (except when prohibited by law). By choosing any one or more of these remedies, we do not $ 20.00 0.00waive our right to later use another remedy. By deciding not to $ 15.00 25 . o0use any remedy, we do not give up our right to consider the event $ a default if it happens again. You agree that if any notice is required to be given to you of the intended sale or disposition of the Vehicle, this notice will be 1$ 60.00 considered reasonable if sent by mail to your last known address, (Less) Prepaid Finance Charges $ 0.00 as reflected in our records, at least 10 days before the date of the intended disposition (or such other period of time as is required by Amount Financed law). (Unpaid Balance of Cash Price plus Other Charges) $ 17760.00 You agree to the terms on pages 1, 2, and 3 of this Contract. ADDITIONAL TERMS OF THE CONTRACT AND SECURITY AGREEMENT GENERAL TERMS: As used in this document, Contract includes the terms of the Contract and Security Agreement. You have been given an opportunity to purchase the Vehicle and/or services described on page 1 for the cash price or the total sale price. The total sale price is the total price of the Vehicle and/or services if you buy it over time. The total sale price shown in the TRUTH IN LENDING DISCLOSURES is based on the assumption that all payments will be made as scheduled. You agree to buy this property and/or services from us at the actual total sale price according to the terms of this Contract. You agree this Contract will be governed by the law of the State of Pennsylvania. You agree that we have not made any oral warranties or promises regarding the property. This Contract takes effect when signed by you. If any part of this Contract cannot be enforced, this fact will not affect the remaining terms. WARRANTY: Vehicle warranty information is supplied to you separately. PREPAYMENT: You may prepay this Contract in part or in full at any time. Any partial payment will not excuse any later scheduled payments until you pay in full. OWNERSHIP AND DUTIES TOWARD PROPERTY: By giving us a security interest in the Vehicle, you represent and agree to the following. A. You will defend this property against any claim made by anyone else. You will do whatever is necessary to keep our claim to the Vehicle ahead of the claim of anyone else. B. The security interest you are giving us in this Vehicle comes ahead of the claim of any other of your general or secured creditors. You have signed or immediately will sign any additional documents or provide us with any additional information we may require to keep our claim to the Vehicle ahead of the claim of anyone else. You will not do anything to change our interest in the Vehicle. C. You will keep the Vehicle in your possession in good condition and repair. You will use the Vehicle only for the lawful purposes for which it was intended. Unless otherwise agreed in writing, the Vehicle will be located at your address listed on page 1. D. You will not attempt to sell the Vehicle (unless it is inventory and identified as such) or otherwise transfer any rights in this property to anyone else, without our prior written consent. E. You will pay all taxes and assessments on the Vehicle as they become due. F. You will notify us of any loss or damage to the Vehicle. You will provide us reasonable access to the Vehicle for the purpose of inspection. Our entry and inspection must be accomplished in a lawful manner and without breaching the peace. G. You will endorse the certificate of title to this Vehicle, if any, to show the security interest we have in this Vehicle. DEFAULT: You will be in default on this Contract if any one or more of the following occurs (except as prohibited by law). A. You fail to perform any obligation which you have undertaken in this Contract. REINSTATEMENT: If the Vehicle has been repossessed or taken through legal action, we may reinstate the Contract and return the Vehicle to you. The Contract will be reinstated if you pay all past due installments, accrued default, plus any other amount lawfully due under the Contract. In addition, you agree to pay for the costs of suit if we retake the Vehicle through legal action. If default has existed for more than 15 days at the time of repossession, the expenses for retaking, repairing, and storing the Vehicle as authorized by law must also be paid by you. NOTICE OF PROPOSED INSURANCE: You take notice that group credit life insurance coverage and/or group credit accident and health insurance coverage will be applicable to this Contract if so marked on page 1. Group credit life insurance coverage and/or group credit accident and health insurance coverage will be written by the insurance company named. This insurance, subject to acceptance by the insurer, covers only the person signing the request for such insurance (or each person signing the request for joint credit life insurance). The amount of charge is indicated for each type of credit insurance to be purchased. The term of insurance will commence as of the date the indebtedness is incurred and will expire on the originally scheduled maturity date of the indebtedness. Subject to acceptance by the insurer and within 30 days, there will be delivered to us a certificate of insurance more fully describing the insurance. In the event of prepayment of the indebtedness, a refund of insurance charges will be made when due. INSURANCE: You agree to buy insurance on the Vehicle against the risks and for the amounts we require. You will name us as loss payee on any such policy. We may require added security on this Contract if you agree that insurance proceeds may be used to repair or replace the Vehicle. You agree that if the insurance proceeds do not cover the amounts you still owe us, you will pay the difference. You will buy the insurance from a firm authorized to do business in Pennsylvania. You will keep the insurance until this Contract is paid in full. If you fail to obtain or maintain this insurance, we may obtain insurance to protect our interest in the Vehicle. If you fail to name us as loss payee, we may obtain insurance to protect our interest in the Vehicle. We will notify you if we do so. The cost of such insurance will be added to the amount you owe us. The cost will be immediately due. The cost will accrue interest at the highest lawful contract rate, until paid in full. WAIVER: You give up your rights (to the extent permitted by law) to require us to do certain things. You will not require us to: (1) demand payment of amounts due; (2) give notice that amounts due have not been paid; (3) give notice that we are making the Contract immediately due. OBLIGATIONS INDEPENDENT: Each person who signs this Contract agrees to pay this Contract according to its terms. This means the following. A. You must pay this Contract even if someone else has signed it. B. We may release any co-signer or guarantor and you will still be obligated to pay the Contract. C. We may release any security and you will still be obligated to pay the Contract. D. If we give up any of our rights, it will not affect your duty to pay this Contract. E. If we extend new credit or renew this Contract, it will not affect your duty to pay this Contract. /page 2 of 31 U. 0 1982, 1994 Bankers Systems, Inc., St. Cloud, MN (1-800-397-2341) Form RSSIMVLAZ-PA 8/2/94 I ' FTC NOTICES ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. IF YOU ARE BUYING A USED VEHICLE, THE INFORMATION YOU SEE ON THE WINDOW FORM FOR THIS VEHICLE IS PART OF THIS CONTRACT. INFORMATION ON THE WINDOW FORM OVERRIDES ANY CONTRARY PROVISIONS IN THE CONTRACT OF SALE. THIRD PARTY AGREEMENT By signing below you agree to give us a security interest in the Vehicle described on page 1. You also agree to be bound by the terms of this Contract, including the WAIVER section on page 2, EXCEPT that you will not be liable for the payments it requires. You agree that we may renew, extend, or change this Contract. You also agree that we may release any party or Vehicle without releasing you from this Contract. We may take these steps without notice or demand upon you. You acknowledge receipt of a completed copy of this Contract and Security Agreement. X Date Name NOTICE TO BUYER: DO NOT SIGN THIS CONTRACT IN BLANK. YOU ARE ENTITLED TO AN EXACT COPY OF THE CONTRACT YOU SIGN. KEEP IT TO PROTECT YOUR LEGAL RIGHTS. Buyer: Signature: Date Signature: f Date Buyer: Signature: Date Signature: Date BUYER ACKNOWLEDGES RECEIPT OF A COPY OF THIS RETAIL INSTALLMENT CONTRACT Buyer: Buyer: ASSIGNMENT: This Contract and Security Agreement is assigned to HARRIS SAVINGS BANK (name and address), the Assignee, under the terms of the ASSIGNMENT BY SELLER below. Signature: Date Signature: Date Seller: AUDUBON PARK By: _ , y rv ASSIGNMENT BY SELLER Seller sells and assigns this Retail Installment Contract and Security Agreement on _ Cam, '192's to HARRIS SAVINGS BANK, 2ND AND PINE ST, HARRISBURG, PA 171051711 the Assignee, its successors and assigns, all its rights, title and interest in this Contract and Security Agreement, and any guarantee executed in connection with this Contract and Security Agreement. THIS ASSIGNMENT IS MADE: ? UNDER THE TERMS OF A SEPARATE AGREEMENT. ® PURSUANT TO THE FOLLOWING TERMS. Seller gives Assignee full power, either in its own name or in Seller's name, to take all legal or other actions which Seller could have taken under this Contract. Seller warrants: A. This Contract represents a sale by Seller to Buyer on a time price basis and not on a cash basis; B. The statements contained in this Contract are true and correct; C. The down payment was made by the Buyer in the manner stated on page 1 and no part of the down payment was loaned or paid to the Buyer by Seller or Seller's representatives; D. This sale was completed in accordance with all applicable federal and state laws and regulations; E. This Contract is valid and enforceable in accordance with its terms; F. The names and signatures on this Contract are not forged, fictitious or assumed, and are true and correct; G. This Contract is not subject to any claims or defenses on the part of the Buyer; H. A completely filled-in copy of this Contract was delivered to the Buyer at the time of execution; and 1. The Vehicle has been delivered to the Buyer in good condition and has been accepted by Buyer. If sny of these uvarrant)es is breached or } fntn_re, Seller ,will, uoon Assignee's demand, Purchase this Contract from Assignee. The purchase shall be in cash in the amount of the unpaid balance (including interest) plus the cost and expenses of Assignee, including attorneys' fees. Seller will indemnify Assignee for any loss sustained by it because of judicial set-off or as the result of a recovery made against Assignee as a result of a claim or defense Buyer has against Seller. Seller waives notice of the acceptance of this assignment, notice of non-payment or non-performance and notice of any other remedies available to Assignee. Assignee may, without notice to Seller, and without affecting the liability of Seller under this assignment, compound or release any rights against, and grant extensions of time for payment to be made, to Buyer and any other person obligated under this Contract. UNLESS INDICATED BY CHECKING THE BOX BELOW, THIS ASSIGNMENT IS WITHOUT RECOURSE. ? WITH RECOURSE: Seller agrees that if the Buyer defaults on any obligation of payment or performance under this Contract and Security Agreement, Seller will, upon demand, repurchase this Contract and Security Agreement for the amount of the unpaid balance, including finance charges, due at that time. Seller: AUDUBON PARK By: l . .,( K?[?e-??-li-?cs y Title:[ 0 1982, 1994 Bankers Systems, Inc., St. Cloud, MN (1-800397-2341) Form RSSIMVLAZ-PA 8/2/94 (page 3 of 3) AZ 41 Signature: Date EXHIBIT "C" „ Sovereign k To: Whom It May Concern From: Heather Birch Subject: Merger Related Name Changes Sovereign Bank acquired Waypoint Bank in February 2005. Harris Savings Association was renamed to Harris Savings Bank in July 1991. Harris Savings Bank was renamed to Waypoint Bank in October 2000. l.v-int Bari; a, yu.rcd i'ork Federal Sa;-inb anci Loan Association ' r'ctuucr 2t?Cv. York Federal Savings and Loan Association acquired Spartan Building ID ?,J and Loan Association in June 1989. Waypoint Bank acquired First Federal Savings and Loan Association of Harrisburg in April 1996. Waypoint Bank.acquired Heritage Federal Savings and Loan Association in June 1991. Waypoint Bank acquired Carlisle Building and Loan Association in January 1988. Waypoint Bank acquired Manheiri Savings and Loan Association in July 1984. Waypoint Bank acquired Conestoga Savings and Loan Association in August 1982. Conestoga Savings and Loan Association acquired Epharta Building and Loan Association in January 1980. Waypoint Bank acquired West Shore Savings and Loan Association in January 1982. Sovereign Bank acquired Nantucket Bank in July 2004. Sovereign Bank acquired Compass Bank for Savings in July 2004. Compass Bank for Savings acquired Abington Savings Bank in April 2004. Abington Savings Bank acquired Massachusetts Cooperative Bank in September 2002. Abington Savings Bank acquired Hull Cooperative Bank in June 1994. Abington Savings Bank acquired Landmark Bank for Savings in June 1992. Compass Bank for Savings acquired Bay State Federal Savings Bank in June 2003. Bay State Federal Savings Bank acquired Union Federal Savings Bank in February 1997. Compass Bank for Savings acquired Sandwich Cooperative Bank in December 1998. Sandwich Cooperative Bank acquired Plymouth Federal Savings Association in March 1994. Sandwich Cooperative Bank acquired Wareham Cooperative Bank in May 1982. Compass Bank for Savings acquired Martha's Vineyard National Bank in December 1994. Compass Bank for Savings acquired Plymouth Federal Savings Association in March 1994. Compass Bank for Savings acquired Fall River Savings Bank in April 1986. Sovereign Bank acquired Independence Community Bank'in Septerber ,0n6 Independence Community Bank acquired SI Bank & Trust in April 2004. Independence Coirununity Bank acquired Statewide Savings Bank in January 2000. Independence Community Bank acquired Broad National Bank in July 1999. Independence Conununity Bank acquired Bay Ridge Federal Savings Bank in January 1996. Independence Conununity Bank acquired The Long Island City Savings and Loan Association in April 1992. Independence Savings Bank was renamed to Independence Community Bank in September 1998. South BrToklyn Savings Bank was renamed to Independence Savings Bank in June 1975. eatheT Birch Banking Officer Sovereign Bank 11 ?? n trr rtlVtli3YLVA?I, r?oTHr3lt:L SE, EDiane A Stenson, Notary putt. of Peading., Berks County mission ?F?€res February 5, 2011 C • • . EXHIBIT "D" t . -4 80vereign April 1, 2008 SOVEREIGN BANK, successor in interest to Harris Savings Bank PA DIVISION OF MOTOR VEHICLES VIN# 13110385D Account #: ILN-6817050324 Dear Sir/Madam: Sovereign Bank has no financial interest in a 1992 Skyline Royal Cove MH VIN: 13110385D. The titled owner is Patricia S Kellogg or Bradley A Kellogg; this loan was paid in full and closed out December 11, 2007. THE TITLE IS FREE AND CLEAR OF ANY ENCUMBRANCES FROM SOVEREIGN BANK. If you have any questions, please contact us 1-877-SOVBANK between 7:00 a.m. to 11:00 p.m., EST, 7 days a week. Sincerely, r Sharon xeperi.se Banking Officer Consumer Loan Servicing Center Mail Code: 10-421-LS2 PO Box 12646 Reading, PA 19612 Laj-ru-L ?J I A COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL MELANIE WILLIAMSON, Notary Public City of Reading, Berks County ( My Commission Expires June 29, 2010 B A/CRS EXHIBIT "E" t 41 . overeign Bank Patricia S Kellogg Bradley A Kellogg 1615 Walnut Bottom Road Newville PA 17241-9520 Dear Patricia S & Bradley A Kellogg: April 1, 2008 RE: 6817050324 Thank you for allowing Sovereign Bank to service your borrowing needs. The above referenced loan has been paid in full. Enclosed is our Lien Release Letter indicating our encumbrance has been satisfied. This letter, in conjunction with instructions from your local Department of Motor Vehicles office, is necessary to obtain a free and clear title in your name. Should you have questions about your account or would like information about other products and services we offer, please visit your neighborhood community banking office or contact us at 1-877-SOV-BANK(1-877-768-2265) between 7:00 a.m. to 11:00 p.m., EST, 7 days a week. For customers with hearing impairments, please call 1-800-428-9121 (TTY/TDD). One of our Customer Service Representatives will be pleased to assist you. Sincerely, Linda Sunday Consumer Loan Servicing Center Mail Code: 10-421-LS2 PO Box 1264.6 Reading, PA 19612 Enclosure (1) B A/CRS -• i • . EXHIBIT "F" 35-i 7-` ?t3 10:30 FROM- PENNSYLVANIA DEPARTMElff DF TRANSPORTATION VEHICLE RECORD ABSTRACT 5?07.r08 177087 ?'-'-- -,. PAGE I T-893 P082/002 F-025 081280286800062 802 LIEN LESSEE : NONE TITLE DATE . 0968/91 MrSTRATZON EXPIRY DATE: BODY TYPE : MH ODOMETER READING N NACTUAL MILEAGE DUPLICATE TITLE COUNT 0 VEKrCLE YEAR 1951 STOLEN DATE LZEN HOLDER No. I . NAME : SECURITY PACIFIC [f0fJ5;WO SE3-wICS INC > ADDRESS: P 0 BOX 1521 EXPIRATIDR DATE; gg,(Ia/21 1 DUBLIN OR 43017 ADA NO : '?`----_ . ELT In; ND 2ND DR 3RD LIENS EXIST FOR :THIS TITLE ADDRESS CORRESPONDENCE TO; DEFART14ENT OF TRANSPORTATION VEHICLE RECORD SERVZcEs FO BOX 68691 HARRISBURG, PA 17206-8691 OWNER THERESA L SINGER 4 M4UNTAINVIEW TERR NEWVILLE PA 17241 TITLE NUMBER TAG NUi78ER YIN MAKE MODEL REMAL WID PREVIOUS TAG LIENS - STOPS 44439244 I3I 18 SRED ROYAL COVE YES xQ TITLE BRAND INFO RATION NO TITLE BRANDS EXIST Fi7R THIS TITLE INFORMATI0he (8:4.9 AN TO 6:98 PG) IN STATE I-808-932-4630 OUT-OF-STATE 717-412-53{10 TDD IN STATE 1-300-22B-0676 TIED OUT-OF-STATE 717-432-5380 €a WW. DOT. STAt9. PA , US MARGARET M. STUSKI, ESQUIRE STEPHANIE E. CHERTOK, ESQUIRE PA Supreme Court ID #: 42478 PA Supreme Court ID #: 52651 61 West Louther Street 61 West Louther Street Carlisle, PA 17013 Carlisle, PA 17013 (717) 249-1177 (717) 249-1177 (717) 249-4514 Fax (717) 249-4514 Fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - LAW BRADLEY KELLOGG AND CIVIL ACTION PATRICIA KELLOGG, ; Plaintiffs vs. AUDUBON PARK, Defendant NO. 09-3481 CERTIFICATE OF SERVICE I, Margaret M. Stuski, hereby certify that I have served the foregoing document upon all parties of record in this proceeding in accordance with the requirements of §33.32 (relating to service by a participant) on the following: William Duncan Duncan & Hartman, P.C. One Irvine Row Carlisle, Pa 17013 _ i garet M.= ci, Esquire ?ttorney for Plaintiff PA Supreme Court ID #: 42478 61 W. Louther St. Carlisle, PA 17013 (717) 249-1177 . . 1 - L U^ T + - MARGARET M. STUSKI, ESQ. PA Supreme Court ID: 42478 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 STEPHANIE E. CHERTOK, ESQ. PA Supreme Court ID: 52651 61 West I,outher Street Carlisle, F'A 17013 (717) 249-1177 BRADLEY KELLOGG and PATRICIA KELLOGG, Plaintiffs v. AUDUBON PARK, Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION N0.09-3481 CIVIL TERM PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT NOW COME the Plaintiffs, Bradley Kellogg and Patricia Kellogg, by and through their Attorneys, Margaret M. Stuski, Esq., and Stephanie E. Chertok, Esq. and in support of their response aver as follows: Denied. An involuntary transfer of ownership is not necessary as the Certificate of Title could be transferred if Defendant were to contact the Department of Transportation regarding the already satisfied lien. An involuntary transfer of ownership is necessary only where the Certificate of Title cannot be used to transfer ownership. 2. Denied. Plaintiffs cannot obtain a vehicle power-of-attorney form and an MV4ST as these forms can only be obtained by professionals such as car dealers. WHEREFORE, Plaintiff requests that this Honorable Court deny Defendant's Preliminary Objections to the Complaint and direct Defendant to file an Answer to the Amended Complaint promptly. Date: ~ /~ ~ Respectfully Submitted, ,~ ~~ ~ garet M. uski, Esquire ~ upreme Court LD. No. 42478 Stephanie: E. Chertok, Esquire Supreme Court I.D. No. 52651 61 West I,outher Street Carlisle, PA 17013 (717) 249-1177 Attorneys for Plaintiff 1MARGARET M. STUSKI, ESQ. PA Supreme Court ID: 42478 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 BRADLEY KELLOGG and, PATRICIA KELLOGG Plaintiffs v. AUDUBON PARK, Defendant. STEPHANIE E. CHERTOK, ESQ. PA Supreme Court ID: 52651 61 West lLouther Street Carlisle, PA 17013 (717) 249-1177 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION N0.09-3481 CIVIL TERM CERTIFICATE OF SERVICE I, Stephanie E. Chertok, Esquire, do hereby certify that a true and correct copy of the Plaintiff s Response to Defendant's Preliminary Objections to Amended Complaint in the above- captioned matter has been served upon the following persons on the ~~~ day of 2009, via first-class U.S. Mail, postage prepaid. William A. Duncan, Esquire 1 Irvine Row Carlisle, PA 17013 Attorney for Defendant Respectfully Submitted, ar garet M. Stuski, Esquire Attorney for Plaintiff r~~_t..i- r,F~ ';~i= Tp ~~ : ~ ~'''RY r~ r ~ r,;.;, ~~, ~ ; G,R;,,, , , ~ o;. MARGARET M. STUSKI, ESQUIRE STEPHANIE E. CHERTOK, ESQUIRE PA Supreme Court ID #: 42478 PA Supreme Court ID #: 52651 61 West Louther Street 61 West Louther Street Carlisle, PA 17013 Carlisle, PA 17013 (717) 249-1177 (717) 249-1177 (717) 249-4514 Fax (717) 249-4514 Fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION -LAW BRADLEY KELLOGG AND CIVIL ACTION PATRICIA KELLOGG, Plaintiffs vs. NO. 09-3481 AUDUBON PARK, Defendant SECOND AMENDED COMPLAINT Plaintiffs are Bradley Kellogg and Patricia Kellogg, husband and wife, who currently reside at 1615 Walnut Bottom Road, Newville, Cumberland County, Pennsylvania 17241. 2. Defendant is Audubon Park, who has its principal place of business at 84 Audubon Park, Dillsburg, York County, Pennsylvania 17019. 3. Defendant Audubon Park is a licensed mobile home dealer. 4. At the time of the activities complained of Audubon Park held a license with the Commonwealth of Pennsylvania as a mobile home dealer and a licensee of the Motor Vehicle Sales Finance Act. 5. On or about December 4, 1995, Plaintiffs entered into a contract with Audubon Park for the purchase of a 1992 Skyline Royal Cove mobile home, serial number 13110385D. A true and correct copy of the sales contract is attached hereto marked as Exhibit "A" and made a part hereof. 6. The total cash purchase price of the mobile home was nineteen thousand nine hundred sixty dollars ($19,960.00). 7. The sales contract lists Anna Hollinger, an agent of Audubon Park, as the salesperson. (See Exhibit "A".) 8. The mobile home was previously owned by Theresa Singer, and was subject to a loan secured by the mobile home, and held by Security Pacific Housing Services, Inc., which is now owned by Bank of America. 9. In order to facilitate the purchase of the mobile home, Plaintiffs entered into a Retail Installment Contract and Security Agreement with Audubon Park on December 4, 1995. A true and correct copy of the Retail Installment Contract and Security Agreement is attached hereto marked as Exhibit "B" and made a part hereof. 10. On page three (3) of the Retail Installment and Security Agreement, it states that the contract and security agreement is assigned to Harris Savings Bank, 2nd and Pine Streets, Harrisburg, Pennsylvania 17105, which is the lending institution which financed the Plaintiffs' purchase of the mobile home. 11. The Retail Installment Contract and Security Agreement lists Audubon Park as the "Seller". 12. Anna L. Hollinger, an agent of Audubon Park, signed the Retail Installment Contract and Security Agreement, and is listed as the "Salesperson." (See Exhibit "B" at pp. 1, 3.) 13. Since the time of purchase of the mobile home, Harris Savings Bank was renamed "Waypoint Bank" in October 2000, and subsequently was acquired by Sovereign Bank in February 2005. See correspondence from Heather Birch, Banking Officer, Sovereign Bank, a true and correct copy of which is attached hereto marked as Exhibit "C" and made a part hereof. 14. On or about December 11, 2007, Plaintiffs satisfied the loan held by Sovereign Bank for the purchase of the mobile home. (See correspondence from Sharon Kegerise, Banking Officer, Sovereign Bank, dated April 1, 2008, a true and correct copy of which is attached hereto marked as Exhibit "D" and made a part hereof, and correspondence from Linda Sunday of the Sovereign Bank Consumer Loan Servicing Center, dated April 1, 2008, a true and correct copy of which is attached hereto marked as Exhibit "E" and made a part hereof ) 15. On or about May 2008, Plaintiffs reached an agreement with Tom Sokol and Tasha Sokol to sell the mobile home for $8,500.00. 16. However, Plaintiffs subsequently discovered that title to the mobile home was still subject to a lien held by Security Pacific Housing Services, Inc. (now Bank of America) which was obtained by Ms. Singer. 17. Through communications with counsel for Defendant Audubon Park, William A. Duncan, Esquire, Plaintiffs discovered that Security Pacific Housing Services, Inc. was still listed as a lien holder on Pennsylvania Department of Transportation records (hereinafter PennDOT). (See PennDOT Vehicle Record Abstract, dated May 7, 2008, a true and correct copy of which is attached hereto marked as Exhibit "F" and made a part hereof.) 18. Plaintiffs were unable to clear the lien on the title, and as a result, lost their ability to sell the mobile home to the Sokols for $8,500.00. 19. At the time Plaintiffs entered into the contract to purchase the mobile home from Defendant, they were not made aware by Defendant that clear title to the mobile home had not been obtained and transferred to them. 20. To the contrary, at the time Plaintiffs entered into the contract to purchase the mobile home from Defendant, they were under the impression that Defendant had good, marketable title to the mobile home, and that Defendant was transferring title to the mobile home free of any lien or encumbrance. COUNT I: BREACH OF WARRANTY PURSUANT TO 13 Pa.C.S.A. § 2312 21. Paragraphs 1-18 of this Complaint are incorporated by reference as fully set forth herein. 22. Defendant did not at any time notify or represent to Plaintiffs that Defendant was transferring title to the mobile home subject to the lien held by Security Housing Services, Inc. 23. Pennsylvania law requires the seller of goods to transfer good title, free of liens and encumbrances, to the buyer of goods. 13 Pa.C.S.A. § 2312 states: (a) General rule.--Subject to subsection (b) there is in a contract for sale a warranty by the seller that: (1) the title conveyed shall be good, and its transfer rightful; and (2) the goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge. (b) Exclusion or modification of warranty.--A warranty under subsection (a) will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have. (c) Warranty of merchant regularly dealing in goods.--Unless otherwise agreed a seller who is a merchant regularly dealing in goods of the kind warrants that the goods shall be delivered free of the rightful claim of any third person by way of infringement or the like but a buyer who furnishes specifications to the seller must hold the seller harmless against any such claim which arises out of compliance with the specifications. 24. Accordingly, Defendant had a duty at the time of Plaintiffs' purchase of the mobile home to ensure that they were transferring title to the mobile home free of any encumbrance or lien. 25. Since discovering that title to the mobile home was encumbered, Plaintiffs repeatedly requested through counsel that Defendant, Audubon Park take measures to ensure that the Security Pacific Housing Services, Inc. lien has been satisfied, and have the lien removed from the Pennsylvania Department of Transportation (herein after referred to as "PennDOT") records as a lien holder. 26. Defendant, Audubon Park, repeatedly denied that it was their obligation to transfer good title free of encumbrances or liens. 27. Defendant, Audubon Park, failed to take any steps to ensure that the Security Pacific Housing Services, Inc. Iien was removed from the title to the mobile home, and failed to provide Plaintiffs with bank records or other documentation indicating that the Security Pacific Housing Services, Inc. lien was satisfied, which would have allowed Plaintiffs to have the Security Pacific Housing Services, Inc. lien removed from the title. 28. Defendant, Audubon Park, refused to assist in transferring the title to the Plaintiffs. 29. Plaintiffs, through their counsel, researched and obtained a lien release letter from the successor bank to Security Pacific Housing Services. 30. Plaintiffs, through their counsel, obtained a duplicate title using the lien release letter. 31. Plaintiffs and Theresa Singer signed the title and PennDOT prepared paperwork to have the title issued in Plaintiffs' name. WHEREFORE, Plaintiffs, Bradley Kellogg and Patricia Kellogg, respectfully request this Honorable Court enter and order: A. Plaintiffs seek attorney fees and cost for obtaining lien release in excess of $2,500.00 to date and ongoing. B. COUNT II: VIOLATION OF PENNSYLVANIA UNFAIR TRADE PRACTICES ACT, PURSANT TO 73 P.S. § 201-9.2 32. Paragraphs 1-29 are incorporated by reference as fully set forth herein. 33. Defendant, Audubon Park, is a duly licensed mobile home dealer under the vehicle manufactures, dealers and salesperson act, known as the Board of Vehicles Act, which can be found at 63 P.S. § 818.1, et seq. 34. Plaintiffs paid the fee and obtained the title in their names. 35. Furthermore, Defendant, Audubon Park, held a license under the Motor Vehicles Sales Finance Act, which can be found at 69 P.S. § 601, et seq. 36. The term "mobile homes" is defined at 75 Pa.C.S.A. § 102, which states: "Mobile home." A trailer designed and used exclusively for living quarters or commercial purposes which exceeds the maximum size limitations prescribed by this title for operation on a highway and is only incidentally operated on a highway. 37. Anna Hollinger, the agent of Defendant, Audubon Park, is a duly licensed sales person under the Board of Vehicles Act. 38. Anna Hollinger was the salesperson who signed the Sales Contract and Retail Installment Contract and Security Agreement on behalf of the licensed Dealer, Defendant, Audubon Park. 39. Defendant, Audubon Park, sold a mobile home to Plaintiffs using the buyer's order which is attached hereto marked as Exhibit "A". 40. Furthermore, Defendant, Audubon Park, contracted a financing source and provided a loan to Plaintiffs for the purchase of the mobile home. 41. Previously, Security Pacific Housing Services, Inc. provided a loan to Ms. Singer when Ms. Singer owned the mobile home prior to its sale to Plaintiffs. 42. Security Pacific Housing Services, Inc. should have received a title to the mobile home as a condition of financing. 43. Title should have been held by Security Pacific Housing Services, Inc. until such time as the loan was satisfied or the mobile home was sold. 44. It is the responsibility of a selling dealer to fulfill any requirements of the sale, particularly ensuring that there is clear title to the mobile home at the time the mobile home is sold to a buyer. (75 Pa. Cons. Stat. § 111, 63 P.S. § 818.19) 45. When Plaintiffs purchased the mobile home, they obtained financing from Harris Savings Bank. 46. The selling agent, Defendant, Audubon Park, should have then transferred title to the mobile home to the Kelloggs and recorded the lien holder Harris Savings Bank. 47. Upon information and belief, Plaintiffs aver that Defendant, Audubon Park, never transferred title to the Kelloggs and recorded the lien holder as Harris Savings Bank. 48. In order to transfer title, the original lien needed to be satisfied to provide clear title and to record the purchase loan as a first lien. 49. The law requires a licensed mobile home dealer and Motor Vehicle Sales Finance Act license holder to maintain records and do everything necessary to legally transfer title of the vehicle being sold. 50. To transfer title to a mobile home, PennDOT requires that a form MV4st be filed. 51. PennDOT requires that only an authorized agent or dealer fill out a form MV4st transfer of title for it to be filed properly, 75 Pa.C.S. § 1111. 52. PennDOT also requires that a dealer use a Secure Power of Attorney when a title is encumbered by a lien holder. 53. This requires the completion of the proper PennDOT documents, the satisfaction of any liens on the previous title and the recording of the new lien on the title issued at the time of the sale to the buyers. 54. Failure to due so constitutes, at the very least, bad business practices under the dealer's license. 55. It is evident in this case that clear title was not provided by the Defendant, Audubon Park. 56. Failure to provide clear title allows a basis for rescission of the sales contract due to fraud. 57. However, the Plaintiffs did not discover the fraud until they attempted themselves to sell the mobile home privately, and demand for title was made upon them. 58. Failure to provide title is a violation of section 818.19 of the Vehicle Manufactures, Dealers and Salespersons Act (63 P.S. § 818.19) which states that it is illegal for a dealer to: (2) Make any substantial misrepresentation of material facts. (3) Make any false promise of a character likely to influence, persuade or induce the sale of a vehicle. (5) Fail or refuse to account for moneys or other valuables belonging to others which have come into his possession arising out of the sale of vehicles. (7) Commit any act or engage in conduct in connection with the sale of vehicles which clearly demonstrates unprofessional conduct or incompetence to operate as a licensee under this act. 59. Under the Board of Vehicles Act, the dealer, Defendant Audubon Park, would have been responsible for titling the mobile home. 60. Therefore, a copy of the completed PennDOT form should have been available in the dealer's files. 61. Additionally, the dealer's records should contain evidence of the satisfaction of the first lien held by Security Pacific Housing Services, Inc. on the first title. 62. Lastly, the dealer's records should contain evidence of the satisfaction of the first lien regardless of whom the dealer used as their agent. 63. PennDOT requires that only an authorized agent or dealer fill out a form MV4st transfer of title for it to be filed properly, 75 Pa.C.S. § 1111. 64. It was Audubon Park's obligation to obtain the Secure Power of Attorney to ensure completion of its end of the transfer. 65. Audubon Park failed to obtain the Secure Power of Attorney. 66. Audubon Park failed to complete a form MV4st. 67. There is a judicial process to obtain title, however, in this case, Plaintiffs' counsel has the lien release letter. 68. Plaintiffs' counsel researched who was the successor to Security Pacific by calling the Department of Banking and Office of the Comptroller. 69. Plaintiffs' counsel found the successor bank and asked them to provide a release of lien letter. 70. Plaintiffs' counsel followed up with them and received the lien release letter. 71. Plaintiffs' counsel obtained the form for a duplicate title and sent it to the former owner, who signed the form, had the signature notarized, and returned the form to Plaintiffs counsel. 72. Plaintiffs had the lien holder release but did not have the dealer to complete the transaction. 73. Plaintiffs had to go to an authorized PennDOT title agent to obtain a duplicate title and get the paperwork to obtain a title in their names. 74. A violation of the Board of Vehicles Act is a violation of Pennsylvania's Unfair Trade Practices Act, hereinafter referred to as "UTPA". 75. A violation of the UTPA allows the aggrieved party to seek treble damages and attorneys fees. 73 P.S. § 201-9.2(a). 76. Defendant, Audubon Park, violated section 201-3 of the UTPA, by utilizing "Unfair Methods of Competition and Unfair or Deceptive Acts or Practices in the conduct of their trade or commerce in their dealings with Plaintiffs." 73 P.S. § 201-3. 77. Unfair Methods of Competition and Unfair or Deceptive Acts or Practices are defined at 73 P.S. § 201-2(4) to include the following: (iii) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by, another; (xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 78. Defendant, Audubon Park, could have contacted the successors to Security Pacific Housing Services, Inc. to obtain documentation that the lien had been marked satisfied and the title cleared, by way of a Title Release Letter or No Interest Letter. 79. However, Defendant Audubon Park, steadfastly refused to take the measures necessary to have the title to Plaintiffs' mobile home cleared, even though they are obligated to due so under the Motor Vehicle Manufactures, Dealers and Salesperson Act and their Motor Vehicle Sales Finance Act License. 80. As Defendant Audubon Park, had a duty to ensure Plaintiffs obtain clear title to the mobile home, failed to due so, and frustrated Plaintiffs' efforts to obtain clear title so that they may sell the mobile home, Defendants have engaged in Unfair Methods of Competition and Unfair or Deceptive Acts or Practices under section 201-2(4) of the UTPA. 81. As a result of Defendant Audubon Parks' actions, Plaintiffs have suffered damages from their inability to sell the mobile home in May of 2008. Additionally, Plaintiffs have suffered damages in the amount of $200.00 per month in lot rent from May 2008 until the present, utilities in the approximate amount of $120.00 per month from May 2008 until the present, and insurance in the amount of $350.00, all of which they would not have had to pay had they been able to sell the mobile home in May 2008. 82. For violations of the Unfair Trade Practices Act, Plaintiffs seek the following damages: (a.) $5800 on loss of sale; (b.) $10,720 in loss of rent, utilities and insurance since May 2008, which is to date and ongoing; (c.) $2,940 in attorney fees to date and ongoing; (d.) $278.50 in costs to date and ongoing. WHEREFORE, Plaintiffs Bradley Kellogg and Patricia Kellogg, respectfully request this Honorable Court award them treble damages and attorneys fees pursuant to the Pennsylvania Unfair Trade Practices Act. Respectfully submitted, Marg M. Sxuski, Esquire , Attc4~ for Plaintiff PA Supreme Court ID #: 42478 61 W. Lowther St. Carlisle, PA 17013 (717) 249-1177 E ~HIB I T "A" r ~.- ~- _ .. - _ . , - t. _ _ t ffaf,. . ;t~~v In then contract the ~ r~s, !. ft4E. ancE Fal' re°~-' so tFie Lrlver ~rs~ C.~r- r. t tr-e1e~r- ttrta eentrect. The v.°ar~s l'fJLF Gnd YCJEFR refer to the Deter. dV/}~Cf ~tQ tl'ae tern<_ 4R~ COF't~ItEQ:'t. Gn t$Ctr. ~tl?C-~, `st t~tiS c~ re~e1-~_ ~ ~':. ~ ~ ~ fi: 2fe~ t i4[?rG-'G tG [JL'PC 4E ^~SB tfiG- ~G,TCy6':;tr:~ r~`P,",Crl~Cz tPri EL. -:., , .,. - i BUYER(S) '' ~ ML 1 ' ,a, _. DATE PHONE,: ~_, '-" - f i { . .! <_ / ~ . ~ _ ~: ADDRESS ~'~.4.. A,,.- - Y ~.. , ^. ". - ~ .SALESPERSON - - GELIVERY ADDRESS - ,,' J,-'°"` :' ` MAKE 8 MODEL ~ 1'EAP. BD. RGOMS FLOCR SIZE HITCH SIZE -. STOCK NUMBER - _ . .. ~ ~ 1 SERIAL NUMBER -r=-.. - r - COLCR -- -. - - _ PROPOSED DELNERY DATE KEY Y~IUMdERS ,, ., ~. ,- „_ ~.~ -C] NEW G~-USED ~ ,~- ~ ~-~` _ ,. . r _r ~ ---- ~` _;. _ UPTIOI~LAI_ EQUIPMENT, LABOR AND ACCESSORIES - . BASE PRICE OF UNIT, $~`~' ~ `' -a-- ~.~~~1.,~.4; ~~~~: ~~r;`~ ~. F~y~4i ~.f-, fem..-;:~ °€'~ ~_«,. ''" $ OPTIONAL'EQUIPMENT : ~ ~~_,~ r• f k ss ~' A-~:F~. i ~~. ~.~~~'. ~.~. ~` fia~~ Cost bf 1'arts and Sei-u sl =~~,~-~ ~. . -~8`. ~'ia .r ~.~f~ ?Tt `~ .r'„r( _ ~~ti -'`:r (i 1,~~~,:.~ - ~_.~. r'Ur.~ ~'``ti~., ~.;,;``. `" - ~e <.-rr €..F-: ~ .,= t ~ r'~ ~r r ~,~=: _ SUB-TOTAL $ ~ -r - :: - - _d. f _ F _. ' °t~ ' ,-,.-~-:- SALES TAX ~ _. r '~ - NON-TAXABLE"ITEINS . r~ ''-`f ` 2 r° - ="Y" r'f ;~ _;f~ .'" ~r { ~`,~r' z ~z`',i _ VARIOUS FEES AND INSURANCE - f..CASHPURGHASEPRICE ~f ~~~,s ~ ~' - ,~ .~ ~ ~~ - '" , ~ F ~ - _ ~ ~! ~ f /' . .' TRADE:-1N ALLOWANCE $ _ ~ ( ` LESS BAL: -DUE on above $ _ i ~~ ~' ~ , " X .. L._ ~' ~ ~.-` "' ~ % F :_ NE7 ALLOWANCE $ _ ,, ~ > CASH,DOWN PAYMENT '. ~e.~~' :~, . ~.~n?f" ,~`" GASH AS-AGREEQ sEE REMARKS $ _ ;- - ` 2. LESS TOTAL CREDITS ; - -_ "- ,°`: _-_ - ~_ SALES TAX Ii Not Included Above - ` ~. ~~ .„ >, _ 3. Un aid Balance of. Cash Sale Price - $ `~ ,_' :, r_ ~, r- ._ - -: WORKSHEET. THIS IS NOT PART OF YOUR CONTRACT.=ALL-FIGURES:ARE - ; ... ESTIMATES. THEX DC NOT CONSTITUTE AN AGREEMENT: FOR CREDIT. - _.: _ . ' A:.OTHER.CHARGES. .j - - - ~ `~ ~' ~ - lnsurarice-on Cbmrraodr[y ._ .. $ . -.. ._.... ~ -_ __._. ..._. _ - ~;.: Crediitife Insurance ..:.. ~~.$. - ... -- -~ -. -.-.. :. ..-. ... - .. -~ .. .: :~ .Credit Acordent&Health ..... $ ~ -.. - - _ Taxes.(NOCincl.°above) ........ S - - License Fees ~-.. _. .. .... $ - r: .._ - ~ - Title Fees ....:........... $ - - ,:.::....~... REMARKSi -. - ~ - _ - - -.. RegistraGOn.Fees .. .._...... $~ - - B. UNPAID BALANCE-AMOUNT FlNANCED The - _ ~' .amount o/ crediLprovided to you or on:yqur_be-. -. .. BALANCECARRIED TO OPTIONAL EQUIPMENT $ ANNUAL PERCENTAGE RATE % - N~TE: ~kR(~iF`s Y APdi} EXCLUSIONS AhD LIfJrCfATIOh'S OF DAh~AGES t)N7HI< R~YERSE SIDv. The eostot your credR as a yearry rare DESCRIPTION OF-TRADE-IN YEAR - ~ SIZE - - C. -FINANCE CHARGE - ~ - ~. ~ ~ -~ ~ : ~x -Thedollanamount thecredit will cosryou. - -$ MAKE MODEL BEDROOMS -. - - ~ - ~ D. TOTAL OF PAYMENTS - - - TITLE ND. ~ - ~ '~ --SERIAL ND. - : ~ - -; COLOR -.: .. ~~ The amount you::will ~7iave paid-when you have -. AMOUNT OW/NG TO-WHOM - -'" - : ~ - made allscheduled payments. (B+.CJ . $ ,,.E."TOTAL.SALfPRICE ANY DEBT 1 OWE ON THE TRADE-IN IS TO BE PAID 8Y ~ YOU ~ ME Tne total cost of your purchase on credit, includ- ing your down payment of $ You and t certitythat the"additional t8rms antl'conditions printed on he'othe~ siile:of this contract eie ag- 1r +A+c) _ reed to as:e part of this agreement, the same as'rf printed aboye'the signatures. d ain purchasing the de• $ scribed-trailer, rnanufaetured home or vehicle; the optiontil equipmentand accessories, the insurance as de-': Payable in , .. , monrnty,insraumenrs of s ... _ ..._ .,.. each scribed has been voluntary; that my trade-in is free from all claims whatsover, except noted. and one tinat insranment o/.8 . -:iH15 AGREEMENT CONrldR'S TNEFl~71REUNDEHSTAWDING~BETiYEEAr Y0U-i17dD A!~ ~A1DND OTtIER REPRESEATATtON OR IMDUCEABEtdl', VER8k.04 WRITTEN, HAg BEER MArIE WH7CM 15 HOi CONTAINED IfQ'tHfS CONFRfiCT. LOR WE.ACKNOWLEDGE RfiCE1PTOF A COPYOF THISORDER AND THAT 1. UA WE. HAVE AEAD AND UNDERSTAND THE BACK OFTHIS AGREEMENT: x r .- - - - SIGNED X~~~-r ''~ -- ~ f~ I -~i` s - ~r_"".~ ~ ~"~ ''~ BUYER - - M - ~.. ~``~~ `1 ~~` : ~~,` DEALER SOCIAL SECURITY-/~JO F`-'/Y i~?" / ~ -~' F - ~' t No(Valid Unless Signed and Accepted by.an 08icer of the Company - ~-y, - . - 1-. - ~ % 4~ ~ - ! - SIGNED X,' ~ _ BUYER - - Approved ~- ~ - SOCIAL SECURITY ND. l `: .' - l ® STAN DAR D~A PLAIN LANGUAGE PURCHASE AGREEMENT ~ ~ ~ ~ ~ ter, -~ ~R 0 Copyright ©1983, 1991 JENKINS BUSINESS FORMS, MASCOUTAH, IL 62258 - , ... _ ,_ _ _ _...._ ... _- ~_.. .. - . - _ . _. _ . .__ _ v.... _, . r4DDtTt®P~fAL TER(1~~ /~~~ Cd}F~DtYtOP~~ In this coniracf the wards 1 me, and my refer to the Buyer and Co-Buyer signing-this contract. The words you: andyour refer fd the Dealer. "` 1, further agree (continued from other-side of Cdntractl: _ - - : - __- - _.:. _ . _ _ :. . _ , 1: fF NQT A' GASH ;TAANSAGTfQN: tf 1 do not compiete-this purchase as a cash transaction. I know before or at -the time of delivery of-the unit purchased, .twitf enter into a retail installment contract an; sign a security agreement-or other.agreementas-may. be required to finance my purchase. ,-.. _ ... _ _ , 2. TITLE. Title to the unit purchased will remaih in you unfit the agree upon purchase price is paid in. fuf! in cash, or I have signed a retail installment coniracf and it has been accepted by a bank or finance } company, at which time title passes to me even though the actual delivery of,the unit puicf>ased may be made at a later data. ;. _- 3. TRADEgN. If ! am trading in a used tar, manufactured home, trailer, or othervehicle I will give you the original bfll of-sale or the title to the trade-in. !promise that any Trade-in which !give is owned bymr and is free of any lien or other claim except as noted on the other side of this contract..) promise that alt taxes of every-kind leviedagarnst the trade-in have tieen fully paid. If any government agency makes a levy ,..or.ciaims.a.tax lien.ordemand-aga!nstthetrade-in, you may, at.your option,:eitf!e{ pay it and l will reimburse you on demand, or you-may add that-amount to-this contract as if d-had been originaflyinduded. ~_ 4• _REGISIRbTIQN QR I.1CE11rSE 0~ TRI+DE-IN. If t have.airade-in arrd it_is_reg{stored or.lipensed in,a state-outside of the one where this.order is writtar~, I will smmediately have-the trade-in_registered b: licensed in the state you indicate and I will pay any and all expenses and reefstration"or licensing tees required. If you dandle t^e registration. er;#icensinc of the trade-in, t will:reimburse: du for-the ~z ense dr - _- -- _ - -Y p __ demand or ydu bray add that amount to this coniracf asrf.i! had been originally inc!uaed. ; _ - - - 5:"REkPPRA{SAL"QFTAADE=Ih:1fl am maklnd atrade=!n and if is not delivered Co you ;3t the Time of the ohgina( appraisa_ an if iafE;r; on de6very:.it appears fo you tha# iherehavefieen material chance; made-in-the _fumishings or-accessories, or (n its general physical cor!ditron; ~+ou mayar;ake a reappraisal: This later-appraisal va!u~ vli!! then, determine the a!lowarice to fie made fdrihe'tradain:- -- -- __ 6;_F~,tLUt3E Tt1.GC2A~PIETE -PURCHASE.-If-l-fait ar-refuse_to-complete-.this purchase within the #ime-hamespecifigd in fhis contract or-as specified in tre-Uniform Commercial Codeibf the state in which '. _ ssgn this contract, or within an agreed upon extension of time, for any reason (other than cancellation because of any increase in pace),. y_gti may keep that portion of m :cash de osif v~~hich will: ale uate!t compensate you for your consequential damage, incidental damages, and alt other damages, expens s; or losses which you incur because !fail to complete my purchase . I agree; however, that this contract shaP `-not be interpreted as containing a .liquidated damages"-provrsion-tf P have not given yoc a cash: depasit-ortt is inadequate and I Nava gven you a trade=in; you may -sell the trade-in at pobli~ or private sate; anc ~-deduct frpm the motley.received.an.amountlhatwflC adequately-compensate-you for'anyor-al! o`-the-above mentioned-damages,.expenses, and losses incurre because-I failed to-complete this-purchase'I uriderstanc that you shall. have all the rights of a seller upon, breach of contract under the Uniform Commercial Code excep' trio right to s~eh and coiled "liquidated-lama es" under Section 2-716. If ou revaii in - _ __. _ _ - - - - - _ _ _ _ _ _ g - __ - -- _ _ _ __Y. _ p_ _ ' any legal action which you bring against ms o which t bring age net you ,concerning trite contract. ! -agree to reimburse you for your reasonable attorneys' tees, court costs and expenses which you incur ire prosecuting or defending againsttharlegal-action.-~-- -__ -- -- --"--:____- __ __. _.._._. _.___ _____ .._.- -_______.--_-_ ____-__----_-. .____: T; CHANGES BY f~ANUFAGTUAEA: t understand that the manu,a~turer ma,~ make 'any-changes in-the model;-or desigm; or-any accessories and parts from iimeio-time; aril at any Time. tf the mannfahuror lees make changes;. nei(her you nor the manufacturer are ob!igztedio make ihe•same changes in the unit t am purchasing and covered by this order, either be`~ore nr after~t is delivered fa me._ _ __ _ ._ ___ 6. DELAYS. I will not held- you liable for delays caused by the manufacturer, accidents, strikes. fries, or;an} other cause,beypndyour cpnfro!. _ __: - - _ - __ 9: Ift~SPECTIQf@. I have examined the product and find it suitable for_my particular needs. f have relied upon my own judgement and inspection in ,determining that it is of accaptatale quality. On the spacial unit ordzred, f have. retied pn my snspeciion of the displa} model(si the brochures one ~ulletms andror the floor plans provided to you b} the Manufacturer, in making my decision to purchase Fhe unit described on the reverse side ot4his agreement. - _ _. _- _- .: __ _ , __ _..._ ,_ _ __ _ 1A. "'ESCLUSICiIi QF YtrA€tRA4r'T1ES: 1 UNDER'tiTAND THAT-THE IMPLIED V'r~RA~:~TIES GF ~EACHAfeTABELtTY AP~f3 FITNESS FQA A P~RTICUL:~R PUAPQSE-AP~C~ ALL-QTHEA 1~'&AAkNTIES E~PAE5S t7R IAfPietED AAA EXCLUL~Et7-EY YOU FRO~R T~ti~a TRANS~eCTiQtt R~!~ Sts:=-L NQT f~PPLY 3G TfiE G(JGD4 SGLCi.. t UNDEP;STAf~D THAT YOU_#~lak.E NQ-Y~'dAR~at;TIES `d~HATSOEIrEr; AEC~AA£tfNG THE UNfT OA ,r~t*Y APPLIANCE QR C069PQNEftiT CQN1AfNED THEAEIf<, EXCEPT THAT AS hS~:l` BE REC?UiAEC1 i31~"UEF APPLiCA~LE STATE LAVr' ?1. F~AfvUFACTttAEAS Vs'rIAFA(~Tf". I U,4i[?EASTAt~D T4iAT THERE ~A~ EE l~1RITTEP: Yy,4ARAtyTIES CQVEFiiaa THE UI~tT PURCHASED, O<? AI;" APPLIANGE(S} Q" CQr'P'G'lEI~+T(5}, Vy'rliGl; -HAVE BEEN PROVIDED BYTHE t~~;NUFACTUREk Q~ THE UN#T flH ~~=,NUFACTURER QF THE kPPLi;"fdGE(S} QA CQf~POtvE;~~FG. YGU t`4rILL-GIVE f~E CQFfES £1~' Ai~'1` ANF1 AL t~'V4'€;TTEF~ Vt!~.RA~if~- TiES SUPPLIED 6Y_THE. ir:.(~UFACT(iF?EAS. DELI{EAl! $Y:YOU 'FG 4~E vF THE 4V1;AFtAF:TY. Bi' THE ~'A6dUFACTUAER:QF THE UNfT PURCHASeG; 46; At~`Y APPL?ANCE(j Qftr COFePQtemtvT(5j DQES N2T ~aEfift YGU, A€YQPT THE Vtr'~,RAAfiTY(S) OF SUCH fYrANUFA~TUAEP.(5J. d ACYfYQ1:'LEDGE THAT THESE EXPRESS ~`ARAANTIES MADE $Y THE fdtANLiFAGTUPER(S HAVr< Nt?T LEEIY -- - - ) - h.;tDE 6'Y Y9t1 Ei'EFe fF THEY SAl' Y{3U i~As.~E THEftr", t;}R SAY'YE3J Fa€ADE S(}r~.RE ~!THER E~;PR`CSS h4`AA!-Sd;t~TY. YOU +FaA€ NQT AN AGEI:T GF THE ie:Af~UFACTUAEt'°i(Sj FGt`5 Vtr`AR~tGNTY PUAPOSE:= EVEN IF YQU CQl9PLETE; QR ATTEP~i1'T TO GQR"PLETE Rc'PA4AS FQR'TFtE ~:iAh'IJFACTURER(S). _ _ - - -. -_ _. _ _. - _ ._ .- --._. __. __ _ _ 12. Lin4iTAT1Qt:' QF DAF~AGES, fF 1'Nc t~ANUFACTUAER(S)' lPo'fsR:ANTY IS LIFxiITED Tfl-AsPAIA OP,, AEPt_~:CEFv7ENT AND SUBft Vt'AAAANTY FAILS 6EGAUSE QF ATTEft`r~`T !;7 ftEPAlf3 AR`: P8?T GQa~ALETEG 1t°ITHtt~ k $EAYOtIABLE TIAtiE QR TH€ fytANUFAGTUAER(S, HAS (H€iVE) GQNE_QUT.QI" EU~'Y•,'ESS,1~+.;s,REE, TH~,T IF.I A:t Eh'TfTLED-TQ.AftiY'DkA1kGES AT ALL AGAIfST YQU, ' IJ'i+ DliftfiaEu ARE LINTED TO Tiff t,ESSEA QF EiTHER TIfE G05T GF NEEDED ~EPAIAS QR REDUCTIQtt IN THE &'EkCi1:ET VALUE QF TH€ UN'T GAUSEre BY TH4 LfiCI; Qr AE€'AIAS. ff# AfdY C~.SE, YQU Y4f;_L NQT ffE AEt~LfiAEt3 TO PAY tic" AN INC1DEFfTAL OA GQF#SEQUEIvTIkL DAIfAGES. !ALSO ~:GREE THAT AfJCC I H~:Y~ kCGEPTEC THE UP!ii`, Et!Etd T~CitGlt THe t~~FtLfF~.^- TUFEA(S)' kVAARAFt'TY DOES NQT AGGOf4rPLISH tT'S PUAPQSE; THFT t CAltifdQT RETURN THE UNIT TQ YQU AND SEED ~'~ REFUFcI;' FG'°ei kFseY RE~tSGf,". _ 13. INSURANCE. 'understand trial I am not covered by insurance an the unit purchased un±ii accepted byan insurance tompary, and I agree to hold-you hanm!ess from any and ail clams due to-loss or damage prior fo accapfance dt insurance coverage by an insurance company.- ' 14. CQfi T AOLLlNG LAS' AND PLACE OF SU!T. The law of-the State: in which l "sign th;s ca^.iract is the !av v~hich is t~ be user m mterpretng the, terms of the con ~aCt. You and I agree that ii any dis~_te bete+ecn us i~ subr~i;led tc a court for rosolut~o , such legal proceeding shalt take plaoe in the-county ~n which yow prinraple offices are !orated. I` under state law a special dispute resolution procedure or comp airii process is a.ai:abis, I agree to the extent perorated by law trot procedtxe shall be f!ie only method ofsesolution-and source of remedies avai!ab'e_to me. - - - - -- 15. ONE-YEAR PERtOQ QF LIk~tTATIDfd. I understand and agree that-if either of us should breach-thiscontract-the other of us shall have only one year, after the occurrence of that breach; in which to commence an anion for a breach of this contract. i6. IF PART INVALID ASST QF CONTRACT SAVED. You and I agree .that each portion of this contract is independent and if any paragraph or provision violates the law and is unenforceable: the res± of the contract wilt' be valid 17. DELPIEAY AND PLACEFtcNT. It you have- inc:uded delivery of the unit purchased in the purchase price; or if you quote a charge for delivery to`my destination, your agreement to transport the unit purchased: as wel as the price quotation made, is based upon my assurance-that iravel.is alongaxeptable all-weather surfaced roads; fully open and accessible; from point of origin to:point of delivery, during the pe~iaa required for tra~sporG.tian. I assume al responsibility for the proper preparation, of my property to both receii~e and locate tine unit purchased. if you must hire ex`rra labor ar!tl-or equipment in order tc deliver and pace the umt purchased because of something not previously disclosed to you, f will pay for all those additiona. costs. t understand that you do not guarantee proper p;acemeni unless a concrete pies runnine belovt f .a frost tine. has first been prepared. l wd! pay for alt Gabor and material costs to re-set the unit when causes by future etiling or sinking resulting from failure to provide a foundation approved by the Sta#e o Lo a'~ Coos in which the hamF is sited. I understand that the sewer must be stubbed our of the ground, the wafer!rne must be capped and the electric tine connected to a meter:pole with a proper receptacle within 2D feet e' the electric bcx inside of the homF. !understand that unless otherwise provided on the other siae_o: ,this coniracf, the unit purchased is sbid by .you F.0.8. your lot and I am rosoonsibie for transporting it 16. CC~P~f~EGT10NS; PEAf~tTS AtdD GRANGES. !understand that you are not permitted to make plumbing or e ectrical connec#ions or cgnnecton of certain natural gas or propane appliances where statE or Ic~at ordnance require a licensed plumber or e~ectrician do this work. I understand that ydu are not responsible to• obtaining health orsanita+apn permits; nortor any local,-county; orstate permits required becausE~ of restrictive zornnc. I unde~stanc that you-are *td'. responsible for making changes to plumbing; electrical cr construetron changes required by specie' building ordinances or laves I will pay the rests of any change: neepec for comp:.iance wd~i local county or state ;av.~s or zoning requirements. = - .,; _ i8, ttiQTICE QF K'It?TH LIf~tTF:TtOffS. ! `lave been informed of the length and width limitations, as of the dale of this cent,ac., nov enforced tr1 tfle SeYera StaIOS, Or provinces of Canada, as thei may app!4 to t!-~e moveTe ; ct ma~ulactured homes over the pubic highways, and the fact that spew :permits are required. l `understand that some states; arthe provinces of:Canada, may not grant the required permits where the size exceeds the statuton~ maximum. I release you and your assigns; and the manufacturer and its assigns, from any and all demands: suits or counterclaims, based on the size o1 the unit purchased, ii it exceeds the limitations which are nosv, or may later tie, imposed by any state or province. This four: is protected under Feeeral Copyright Laws as filed by Jenkins Business Forms. Arr+ reproduction without iv express v:~rrtten consent is subjec± to local liability. Jenkins BusLrss Farms does riot give loge advice nor represen+ any paRi^war loge! effect as resulting frern the use of this form. If the user does not understand any terms; or legal effect, see competent legal counsel. EXHIBIT "B" RETAIL INSTALLMENT CONTRACT AND SECURITY AGREEMENT No._ Date ~~tt,. ~ • /lam! S e Seller gUDUBON PARK AddfeSS g4 AUDUBON PARK DILLSBURG, PA 17019 "We" and "us" mean the Seller above, its successors and assigns. Buyer KELLOGG, BRADLEY A. KELLOGG, PATRICIA S. Address 4 MOUNTAIN VIEW TERRACE "You" and "your" mean each Buyer above and guarantor; jointly and individually. SALE: You agree to purchase from us, subject to the terms and conditions of this Contract and Security Agreement, the Vehicle in its _ ~__...: L.....1 L...1...., preseYear nulu ui~ uG,~"vMake'V... Model Manufacturer's Serial Numbers License No./Year 92 SKYLINE ROYAL COVE 13110385D OTHER DESCRIPTION: Size: 14x~o SECURITY: You give us a security interest in the Vehicle described above. The Vehicle shall be complete with all accessions, attachments, accessories, equipment, and proceeds of the Vehicle. The delivery and acceptance of the Vehicle is acknowledged by you. Our security interest will not extend to consumer goods that are not installed in or affixed to the Vehicle more than 10 days after we enter into this Contract with you. PROMISE TO PAY AND PAYMENT TERMS: You promise to pay us the principal amount of S 17760.00 ,plus finance charges accruing at the rate of 10.99 % per year until maturity, You agree to pay this Contract according to the payment schedule and late charge provisions shown in the TRUTH IN LENDING DISCLOSURES, and pay any additional amounts according to the terms and conditions of this Contract. After maturity, or after we have demanded payment of earned but unpaid amounts, we will, instead, earn interest at 10 .99 percent per year. DOWN PAYMENT: You also agree to pay on or before today's date the down payment of any cash, rebate and net trade-in value described on page 2. ^ MINIMUM FINANCE CHARGE: We may retain a minimum finance charge of S_ before we have earned that much interest. TRUTH IN LENDING DISCLOSURES if you pay off this Contract ANNUAL FINANCE CHARGE AMOUNT TOTAL OF PAYMENTS TOTAL SALE PRICE PERCENTAGE RATE The dollar amount the FINANCED The amount you will have The total cost of your The cost of your credit credit will cost you. The amount of credit paid when you have made purchase on credit, as a yearly rate. provided to you or all scheduled payments. including your down 00 2200 on your behalf. . payment of S 10.99 % S 14284.32 $ 17760.00 $ 32044.32 $ 34244.32 Pa ment Schedule: Your payment schedule will be Number of Payments Amount of Payments When Payments Are Due ~ 144 S 222.53 ~'d of each month be innin 19 G $ and each thereafter until d. S Security: You are giving a security interest in the Vehicle being purchased. ® Late Charge: You will be charged 2% per month on the amount of the payment in arrears by more than 10 days. Assumption: Someone buying your home cannot assume theobligation on the original terms. Prepayment: If you pay off this Contract early, you ^ may ®will not have to pay a penalty. Filing Fees S 20.00 Contract Provisions: You can see your Contract documents for any additional information about nonp ayment, default, any required repayment before the scheduled date, and prepayment refunds and penalties. If you do not meet your Contract obligations, you may lose your house, the property that you bought with this loan, or household goods and furniture, your motor vehicle, or money in your account with us. CREDIT INSURANCE: Credit life insurance and credit disability insurance are not required to obtain credit. Credit life insurance and credit disability insurance will not be provided unless you sign and agree to pay the additional cost. For First Buyer CREDIT LIFE: For Second Buyer For Both Buyers Premium: S CREDIT For First Buyer DISABILITY: For Second Buyer For Both Buyers Premium: S For First Buyer For Second Buyer For Both Buyers Premium: S Insurance Company Name and Home Office Address: I Want the Credit Insurance Specified Above: First Buyer Second Buyer PROPERTY INSURANCE: You are required by us to insure the Vehicle securing this Contract. You shall have the option of furnishing the required insurance either through existing policies of insurance owned or controlled by you or procuring and furnishing the equivalent insurance coverage through any insurance company authorized to transact business in Pennsylvania. Insurance covering risks of: 11 loss or liability related to the Vehicle, 21 the use of the Vehicle, 3) goods or services related to the Vehicle, 4) mechanical breakdowns, or a service contract or warranty is optional and not included unless checked and indicated below. LIABILITY INSURANCE: Liability insurance coverage for bodily injury and property damage caused to others is not included in this Contract unless checked and indicated below. If you get the insurance from or through us, you will pay for of coverage. The Vehicle insurance premium is calculated as follows: ^ Fire-Theft and Combined Add'I. Coverage S ^ S Deductible Comprehensive Cov. S ^ S Deductible Collision Coverage S ^ S ^ S ^ A charge for an Extended Service Contract is added to this Contract. The Extended Service Contract sold or provided by us is: Coverage: for Term: MODERN CREDIT PROTECTION POLICY: Premium S for of coverage. Aft MOTOR VEHICLE (page l of 31 ®1992, 1994 Bankers Systems, Inc., St. Cloud, MN 11-800-397-2341) Form RSSIMVLAZ-PA 8/2/94 ...,'~~" ~ ~ ' ITEMIZATION OF AMOUNT FINANCED Vehicle (including accessories, delivery, services, and sales tax of $ o . 00 1 Extended Service Contract Cash Price Cash Down Payment $ 2200.00 Manufacturer's Rebate $ o . o0 Description of Trade-in Trade-in Less: Amount Owing (paid by Seller) Net Trade-in Down Payment Unpaid Balance of Cash Price (Cash Price less Down Payment) Paid to Public Officials- Sales Tax !Tire Tax Paid to Property Insurance Company / MCPP Paid to Credit Life Insurance Company Paid to Credit Disability Insurance Company Filing Fee / UCC To: Notary & Prep (Flood Report To: Other Charges (including Amounts Paid to Others on Your Behalf) (Less) Prepaid Finance Charges $ 19900.00 $ o.oo $ 19900 00 B. We, in good faith, believe that the prospect of payment or the prospect of your performance of any other of your obligations under this Contract is impaired. If you default, you agree to pay court costs we incur to collect this Contract as well as attorneys' fees if we refer this Contract for collection to an attorney. If an event of default occurs as to any one of you, we may exercise our remedies against any or all of you. REMEDIES: If you are in default on this Contract, we have all of the remedies provided by law and this Contract. A. We may require you to immediately pay us the remaining unpaid balance of the amount financed, finance charges, less any refund required by law, and all other agreed charges. B. We may pay taxes, assessments, or other liens or make repairs to the Vehicle if you have not done so. We are not required to do so. Any amount we pay will be added to the amount you owe us, will be immediately due, and will earn $ o.oo interest from the date paid at the highest lawful contract rate permitted by law until paid in full. $ 2200.00 C. We may immediately take possession of the Vehicle by legal process or self-help, but in doing so we may not breach the peace or unlawfully enter onto your premises. We may then $ 17700.00 sell the Vehicle and apply what we receive as provided by law to our reasonable expenses and then toward your $ o . oo secured obligations. $ o . 00 0 . oo D. We may be entitled to a deficiency judgment against you if $ 0.00 the proceeds of the sale do not pay all of the expenses and $ o . 00 what you owe us (except when prohibited by law). By choosing any one or more of these remedies, we do not $ 20.00 o.o0waive our right to later use another remedy. By deciding not to $ 1s . 00 2s . oouse any remedy, we do not give up our right to consider the event $ a default if it happens again. You agree that if any notice is required to be given to you of the intended sale or disposition of the Vehicle, this notice will be $ 60.00 considered reasonable if sent by mail to your last known address, as reflected in our records, at least 10 days before the date of the $ o . oo intended disposition for such other period of time as is required by Amount Financed (Unpaid Balance of Cash Price plus Other Charges) $ 17760.00 You agree to the terms on pages 1, 2, and 3 of this Contract. law). REINSTATEMENT: If the Vehicle has been repossessed or taken through legal action, we may reinstate the Contract and return the Vehicle to you. The Contract will be reinstated if you pay all past due installments, accrued default, plus any other amount lawfully due under the Contract. In addition, you agree to pay for the costs of suit if we retake the Vehicle through legal action. If default has existed for more than 15 days at the time of repossession, the expenses for retaking, repairing, and storing the Vehicle as authorized by law must also be paid by you. ADDITIONAL TERMS OF THE CONTRACT AND SECURITY AGREEMENT GENERAL TERMS: As used in this document, Contract includes the terms of the Contract and Security Agreement. You have been given an opportunity to purchase the Vehicle andlor services described on page 1 for the cash price or the total sale price. The total sale price is the total price of the Vehicle and/or services if you buy it over time. The total sale price shown in the TRUTH IN LENDING DISCLOSURES is based on the assumption that all payments will be made as scheduled. You agree to buy this property and/or services from us at the actual total sale price according to the terms of this Contract. You agree this Contract will be governed by the law of the State of Pennsylvania. You agree that we have not made any oral warranties or promises regarding the property. This Contract takes effect when signed by you. If any part of this Contract cannot be enforced, this fact will not affect the remaining terms. WARRANTY: Vehicle warranty information is supplied to you separately. PREPAYMENT: You may prepay this Contract in part or in full at any time. Any partial payment will not excuse any later scheduled payments until you pay in full. OWNERSHIP AND DUTIES TOWARD PROPERTY: By giving us a security interest in the Vehicle, you represent and agree to the following. A. You will defend this property against any claim made by anyone else. You will do whatever is necessary to keep our claim to the Vehicle ahead of the claim of anyone else. B. The security interest you are giving us in this Vehicle comes ahead of the claim of any other of your general or secured creditors. You have signed or immediately will sign any additional documents or provide us with any additional information we may require to keep our claim to the Vehicle ahead of the claim of anyone else. You will not do anything to change our interest in the Vehicle. C. You will keep the Vehicle in your possession in good condition and repair. You will use the Vehicle only for the lawful purposes for which it was intended. Unless otherwise agreed in writing, the Vehicle will be located at your address listed on page 1 . D. You will not attempt to sell the Vehicle (unless it is inventory and identified as such) or otherwise transfer any rights in this property to anyone else, without our prior written consent. E. You will pay all taxes and assessments on the Vehicle as they become due. F. You will notify us of any loss or damage to the Vehicle. You will provide us reasonable access to the Vehicle for the purpose of inspection. Our entry and inspection must be accomplished in a lawful manner and without breaching the peace. G. You will endorse the certificate of title to this Vehicle, if any, to show the security interest we have in this Vehicle. DEFAULT: You will be in default on this Contract if any one or more of the following occurs (except as prohibited by law). A. You fail to perform any obligation which you have undertaken in this Contract. NOTICE OF PROPOSED INSURANCE: You take notice that group credit life insurance coverage and/or group credit accident and health insurance coverage will be applicable to this Contract if so marked on page 1 . Group credit life insurance coverage and/or group credit accident and health insurance coverage will be written by the insurance company named. This insurance, subject to acceptance by the insurer, covers only the person signing the request for such insurance (or each person signing the request for joint credit life insurancel. The amount of charge is indicated for each type of credit insurance to be purchased. The term of insurance will commence as of the date the indebtedness is incurred and will expire on the originally scheduled maturity date of the indebtedness. Subject to acceptance by the insurer and within 30 days, there will be delivered to us a certificate of insurance more fully describing the insurance. In the event of prepayment of the indebtedness, a refund of insurance charges will be made when due. INSURANCE: You agree to buy insurance on the Vehicle against the risks and for the amounts we require. You will name us as loss payee on any such policy. We may require added security on this Contract if you agree that insurance proceeds may be used to repair or replace the Vehicle. You agree that if the insurance proceeds do not cover the amounts you still owe us, you will pay the difference. You will buy the insurance from a firm authorized to do business in Pennsylvania. You will keep the insurance until this Contract is paid in full. If you fail to obtain or maintain this insurance, we may obtain insurance to protect our interest in the Vehicle. If you fail to name us as loss payee, we may obtain insurance to protect our interest in the Vehicle. We will notify you if we do so. The cost of such insurance will be added to the amount you owe us. The cost will be immediately due. The cost will accrue interest at ±he highest lawful contract rate, until paid in full. WAIVER: You give up your rights (to the extent permitted by law) to require us to do certain things. You will not require us to: (1) demand payment of amounts due; (2) give notice that amounts due have not been paid; (3} give notice that we are making the Contract immediately due. OBLIGATIONS INDEPENDENT: Each person who signs this Contract agrees to pay this Contract according to its terms. This means the following. A, You must pay this Contract even if someone else has signed it. B. We may release any co-signer or guarantor and you will still be obligated to pay the Contract. C. We may release any security and you will still be obligated to pay the Contract. D. If we give up any of our rights, it will not affect your duty to pay this Contract. E. If vre extend new credit or renew this Contract, it will not affect your duty~t~o~pay this Contract. ~nase 2 0/ sl O 1982, 1994 Bankers Systems, Inc., St. Cloud, MN 11-BOO-397-2341) Form RSSIMVLAZ-PA 8/2/9 $ o.oo $ o.oo FTC NOTICES ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. IF YOU ARE BUYING A USED VEHICLE, THE INFORMATION YOU SEE ON THE WINDOW FORM FOR THIS VEHICLE IS PART OF THIS CONTRACT. INFORMATION ON THE WINDOW FORM OVERRIDES ANY CONTRARY PROVISIONS IN THE CONTRACT OF SALE. THIRD PARTY AGREEMENT By signing below you agree to give us a security interest in the Vehicle described on page 1. You also agree to be bound by the terms of this Contract, including the WAIVER section on page 2, EXCEPT that you will not be liable for the payments it requires. You agree that we may renew, extend, or change this Contract. You also agree that we may release any party or Vehicle without releasing you from this Contract. We may take these steps without notice or demand upon you. You acknowledge receipt of a completed copy of this Contract and Security Agreement. X Date Name NOTICE TO BUYER: DO NOT SIGN THIS CONTRACT IN BLANK. YOU ARE ENTITLED TO AN EXACT COPY OF THE CONTRACT YOU SIGN. KEEP IT TO PROTECT YOUR LEGAL RIGHTS. Buyer: Signature: ,~~ ~~ Date _ L. 7 '~ ~ Signature: ~~ D to Buyer: Signature: Date Signature: Date BUYER ACKNOWLEDGES RECEIPT OF A COPY OF THIS RETAIL INSTALLMENT CONTRACT Buyer: ''''" Date Signa ure%~ ~ ..~ ' 1~ f - - r~ ~.+-r`vi `.~~`-~/ ~~~L7ri" cif- %;." ~ 5'~< Signature: ~1 <~~ Date Buyer: Signature: Date Signature: Date ASSIGNMENT: This Contract and Security Agreement is assigned to HARRIS SAVINGS BANK (name and address), the Assignee, under the terms of the ASSIGNMENT BY SELLER below. Seller: AUDUBON PARK ASSIGNMENT BY SELLER Seller sells and assigns this Retail Installment Contract and Security Agreement on _ ~ G~ 4 ,195'S to HARRIS SAVINGS BANK, 2ND AND PINE ST, HARRISBURG, PA 171051711 the Assignee, ItS SUCCOSSOfS and assigns, all its rights, title and interest in this Contract and Security Agreement, and any guarantee executed in connection with this Contract and Security Agreement. THIS ASSIGNMENT IS MADE: ^ UNDER THE TERMS OF A SEPARATE AGREEMENT. ® PURSUANT TO THE FOLLOWING TERMS. Seller gives Assignee full power, either in its own name or in Seller's name, to take all legal or other actions which Seller could have taken under this Contract. Seller warrants: A. This Contract represents a sale by Seller to Buyer on a time price basis and not on a cash basis; B. The statements contained in this Contract are true and correct; C. The down payment was made by the Buyer in the manner stated on page 1 and no part of the down payment was loaned or paid to the Buyer by Seller or Seller's representatives; D. This sale was completed in accordance with all applicable federal and state laws and regulations; E. This Contract is valid and enforceable in accordance with its terms; F. The names and signatures on this Contract are not forged, fictitious or assumed, and are true and correct; G. This Contract is not subject to any claims or defenses on the part of the Buyer; H. A completely filled-in copy of this Contract was delivered to the Buyer at the time of execution; and I. The Vehicle has been delivered to the Buyer in good condition and has been accepted by Buyer. If F„'1v Of tllesP +.A/arrAr!t1eS !S E'rP~^..IICd !tr t_!!lt~i~u SP..IInr .nfill UJnn /1..^.Slgnnu'c GI~~m;a1.d ~,.rrl~wcn ±F;IS CCl:traCt fr^rTl /~SS:y^.,... T~C purchase shall be in cash in the amount of the unpaid balance (including interest) plus the cost and expenses of Assignee, including attorneys'fees. Seller will indemnify Assignee for any loss sustained by it because of judicial set-off or as the result of a recovery made against Assignee as a result of a claim or defense Buyer has against Seller. Seller waives notice of the acceptance of this assignment, notice of non-payment or non-performance and notice of any other remedies available to Assignee. Assignee may, without notice to Seller, and without affecting the liability of Seller under this assignment, compound or release any rights against, and grant extensions of time for payment to be made, to Buyer and any other person obligated under this Contract. UNLESS INDICATED BY CHECKING THE BOX BELOW, THIS ASSIGNMENT IS WITHOUT RECOURSE. ^ WITH RECOURSE: Seller agrees that if the Buyer defaults on any obligation of payment or performance under this Contract and Security Agreement, Seller will, upon demand, repurchase this Contract and Security Agreement for the amount of the unpaid balance, including finance charges, due at that time. Seller: AUDUBON PARK By: ~ oG fi~~~tsai Title: ~~ T 01982, 1994 Bankers Systems, Inc., St. Cloud, MN 11-800397-23411 Farm RSSIMVLAZ-PA 8/2/94 (page 3 of 31 EXHIBIT "C" ^ ~ ~~~~~. To: Whom It May Concern From: Heather Birch Subject: Merger Related Name Changes Sovereign Bank acquired Waypoint Bank in February 2005. Hams Savings Association was renamed to Hams Savings Bank in July 1991. Harris Savings Bank was renamed to Waypoint Bank in October 2000. _ ., ,,.-. ~~u~~ %~ti'[1 it Bari: O': ijU iri)C: of h. rederai Jii "~`trib 4111! Lvali Also CiatiUil lii VCtU l1Cf G~JVV. fork Federal Savings and Loan Association acquired Spartan Building and Loan Association in June 1989. Waypoint Bank acquired First Federal Savings and Loan Association of Harrisburg in April 1996. Waypoint Bank.acquired Heritage Federal Savings and Loan Association in June 1991. Waypoint Bank acquired Carlisle Building and Loan Association in January 1988. Waypoint Bank acquired Manheim Savings and Loan Association in July 1984. Waypoint Bank acquired Conestoga Savings and Loan Association in August 1982. Conestoga Savings and Loan Association acquired Epharta Building and Loan Association in January 1980. Waypoint Bank acquired West Shore Savings and Loan Association in January 1982. Sovereign Bank acquired Nantucket Bank in July 2004. Sovereign Bank acquired Compass Bank for Savings in July 2004. Compass Bank for Savings acquired Abington Savings Bank in Apri12004. Abington Savings Bank acquired Massachusetts Cooperative Bank in September 2002. Abington Savings Bank acquired Hull Cooperative Bank in June 1994. Abington Savings Bank acquired Landmark Bailk for Savings in June ] 992. Compass Bank for Savings acquired Bay State Federal Savings Bank in June 2003. Bay State Federal Savings Bank acquired Union Federal Savings Bank in February 1997. Compass Bank for Savings acquired Sandwich Cooperative Bank in December 1998. Sandwich Cooperative Bank acquired Plymouth Federal Savings Association in March 1994. Sandwich Cooperative Bahl: acquired Wareham Cooperative Bank in May 1982. Compass Ban!: for Savings acquired Martha's Vineyard National Bank in December 1994. Compass Bailk for Savings acquired Plymouth Federal Savings Association in March 1994. Compass Bank for Savings acquired Fall River Savings Bank in Aprii 1986. Sr,~~er°_ion Banl~: ncc,uired h;.detlendenre Ccmniuriity Bank ir? September ;?OnI, Independence Co:li:nunit~~ Bank acquired SI Bank & Trust a Aprii 20u4. Independence C'orninunity Bank acquired Statewide Savings Bank in .January 2000. Independence Community Bank acquired Broad National Bank in July 1999. Independence Conununity Bank acquired Bay Ridge Federal Savings Bank in January 1996. Independence Conununity Bank acquired The Long Island City Savings and Loan Association in April 1992. Independence Savings Bank was renamed to Independence Community Baillc in September 1998. South Brooklyn Savings Bank was renamed to Independence Savings Bank in June 1975. eatllei- Birch anlcing Officer Sovereign Bank R tvOTf~RiAL SEi~i i?iane A Stetson, !votary PuL City of Peacirx~., E36rks Co+~ty NSy Commission empires Fei;ruary b, 201 ~ EXHIBIT "D" .~ ~~~~~. April 1, 2008 SOVEREIGN BANK, successor in interest to Harris Savings Bank PA DIVISION OF MOTOR VEHICLES VIN# 13110385D Account #: ILN-6817050324 Dear Sir/Madam: Sovereign Bank has no financial interest in a 1992 Skyline Royal Cove MH VIN: 13110385D. The titled owner is Patricia S Kellogg or Bradley A Kellogg; this loan was paid in full and closed out December 11, 2007. THE TITLE IS FREE AND CLEAR OF ANY ENCUMBRANCES FROM SOVEREIGN BANK. If you have any questions, please contact us 1-877-SOVBANK between 7:00 a.m. to 11:00 p.m., EST, 7 days a week. Sincerely, k~ Sharon ~eperise Banking Officer Consumer Loan Servicing Center Mail Code: 10-421-L52 PO Box 12646 Reading, PA 19612 .~ ~wvimuNVVtALTH OF PENNSYL~~ANIA NOTARIAL SEAL MELAN!~: WILLIAMSON, Notary Public City of Reading, i3erks County ~ My Commission Expires June 29, 2010 B A/CRS EXHIBIT "E" ~- . Patricia S Kellogg Bradley A Kellogg 1615 Walnut Bottom Road Newville PA 17241-9520 Dear Patricia S & Bradley A Kellogg: April 1, 2008 RE: 6817050324 Thank you for allowing Sovereign Bank to service your borrowing needs. The above referenced loan has been paid in full. Enclosed is our Lien Release Letter indicating our encumbrance has been satisfied. This letter, in conjunction with instructions from your local Department of Motor Vehicles office, is necessary to obtain a free and clear title in your name. Should you have questions about your account or would like information about other products and services we offer, please visit your neighborhood community banking office or contact us at 1-877-SOV-BANK(1-877-768-2265) between 7:00 a.m. to 11:00 p.m., EST, 7 days a week. For customers with hearing impairments, please call 1-800-428-9121 (TTY/TDD). One of our Customer Service Representatives will be pleased to assist you. Sincerely, Linda Sunday Consumer Loan Servicing Center Mail Code: 10-421-LS2 pn uo: 12616 ,... Reading, PA 19612 Enclosure (1) ,. B .4/CRS EXHIBIT "F" t`ENNSYLYk1ti[IA DEPAF?Tf+0=b1T dF TRANSPC7RT~TION VEFFICLE 4tECQFfU ABSTE21iCT 5J07~/08 .. - ~ PAGE 1 O~i067 t76iNER / ; 'THERESA L SINGER A MOUNTAINVZEf~I TERR NEiJYI L LE Pp I. lz~i l 7I'CLE EdIIAtBER TAB NUMBER VIN MAKE MODEL RE'l~tEWAL Wry PrrEV~ aus TdG LIEEtS - S7QPS 4434244 I3T I ©3'85D : R©YAC COVE Yf5 : !t0 TITLE BRAND INFu1tMA~'ION Nd TITLE SE{ANt~S EXIST FDR TF1IS TITLE -.._.. __. _~~-_..._ '6Y T-H9~ PG~~2l~02 F-G33~ 08128Q28SttBOQ62 Q02 LESSEE NQNE TITLE DATE : D4/i8192 kEGIBTRA7xt~N EXPIRY RATE: BaIIY TYE~E : MH OD~MFTER RfAIIIHC~ ~ 3EACTUAL FlILEAGE DUPLICATE TITLE coUwT a VE4iICLE YEAR 1991 STffLEN DATE s LIEFt I ~ R~t,ATI-==~~ ___ 4IE1~ !i[~l.AER FID. i ~, NAt4E 9EDltRZTY PACEFIC (#EFFIS~bE[~ SFRIIICS iNC AD}]'RE85; P O Bt-x 1521 EXPif~ATtai~ Dt~TE; 44liOl~l DtTBLIN ON 43037 AaA HO ''-~_ ELT IN~1: P1L# 2t~fid dR 3.RA LIENS EXIST F4l~ ,Tf~IS T A17dIRES,s* C~t~ESFttAIQEtdCE T~s: I~$F#~Ti'1fNT 19F TRAI~SP4~t7'A.TI#ld~ iOE~i~eLE f~ECOR~t SERYr~~ ^' Pd DU:f S$SS~Z E$AtRFtFSDE6}~, PA iTIQS-ES1I INFO~!!ylATT(l~ta CB:i~a A~ T[3 6:DD PM? Its STATE I-SOn-152-4b0® 1D!!T-flF~STATE 7t?-412-53130 TAD IN STATE i-DDp-2ze-E[87b TbD 4~UT-3FF-5T4TE 7I7~~32-~38a ~ . rear _ sT~r~ , PA . ~S VERIFICATION I, Patricia Kellogg, verify that the statements made in the foregoing pleading are true and correct. I understand that false statements herein are subject to the penalties of 18 Pa.C.S.A. § 4904 related to unsworn falsification. Date: ~V~V~rnb~r' I2, 2OQQ i~ Patricia Kellogg VERIFICATION I, Bradley Kellogg, verify that the statements made in the foregoing pleading are true and correct. I understand that false statements herein are subject to the penalties of 18 Pa.C.S.A. § 4904 related to unsworn falsification. ~ - ~i ~ >. t? ~~ Date: jV~--1~~n'lkx.~' l2 , Z UQ ~ Bradley Kell g MARGARET M. STUSKI, ESQUIRE PA Supreme Court ID #: 42478 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax STEPHANIE E. CHERTOK, ESQUIRE PA Supreme Court ID #: 52651 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION -LAW BRADLEY KELLOGG AND CIVIL ACTION PATRICIA KELLOGG, Plaintiffs NO. 09-3481 vs. AUDUBON PARK, Defendant CERTIFICATE OF SERVICE I, Margaret M. Stuski, hereby certify that I have served the foregoing document upon all parties of record in this proceeding in accordance with the requirements of §33.32 (relating to service by a participant) on the following: William Duncan Duncan & Hartman, P.C. One Irvine Row Carlisle, Pa 17013 ~~e - NoV~trmbe~, ~2, 2~ ~/ ~~~ ,~-- Margaret M. Stuski Esquire-~~ Attorney for Plaintiff PA Supreme Court ID #: 42478 61 W. Louther St. Carlisle, PA 17013 (717) 249-1177 r-; - i ;.: _ _ 4 MARGARET M. STUSKI, ESQUIRE STEPHANIE E. CHERTOK, ESQUIRE PA Supreme Court ID #: 42478 PA Supreme Court ID #: 52651 61 West Louther Street 61 West Louther Street Carlisle, PA 17013 Carlisle, PA 17013 (717) 249-1177 (717) 249-1177 (717) 249-4514 Fax (717) 249-4514 Fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION -LAW BRADLEY KELLOGG AND CIVIL ACTION ("~ N ~._ c~ PATRICIA KELLOGG, ~ <- ~ ~`} ~_~. - ~. ~ ~- rv _~_ Plaintiffs ~ ' '''~_-- - ~+:~ ;- . vs. NO. 09-3481 .,-- ; ti .• - ~ , -,-, • _ r ` r "' Ja c ., AUDUBON PARK, Defendant PLAINTIFFS' RESPONSES TO DEFENDANT'S PRELIMINARY OBJECTIONS NOW COME the Plaintiffs, Bradley Kellogg and Patricia Kellogg, by and through their Attorneys, Stephanie E. Chertok, Esq. and Margaret M. Stuski, Esq., and in support of his response avers as follows: 1. Denied. Averment 1 was addressed previously in the Third Amended Complaint under the averments for Count II. 2. No response required. Averment 2 requires no response as it is a preliminary objection raised under Pa.R.C.P. 1028(a)(5). The note to Pa.R.C.P. 1028c(2) states that preliminary objections raising an issue under subdivision (a)(5) must be endorsed with a notice to plead or no response will be required under Rule 1029(d). As the preliminary objections were not accompanied by a notice to plead, no response is required. In the event that response is necessary: A. Neither party qualifies as a person having a joint interest in the subject matter of an action requiring compulsory joinder under Pa.R.C.P. 2227(a)3; B. Joinder of additional defendants under Pa.R.C.P. 2252 is a permissive right, not a requirement, and therefore does not obligate any party to do so; and C. Plaintiffs are not requesting any relief from Sovereign Bank or Mobile Settlement Services, and therefore could not join either party under Pa.R.C.P. 2229(b). 3. Admitted in part and denied in part. Sub-paragraphs (a) and (b) of Averment 3 are correct. Count I of the Third Amended Complaint seeks attorney's fees. It is also correct that a litigant may not recover attorney's fees in absence of an express authorization by statute, agreement of the parties or other exception to this rule. Defendant is incorrect, however, in the assumption that the Third Amended Complaint does not allege any facts which allow for the recovery of attorneys' fees and that Paragraph 33 of the Third Amended Complaint relates to purchaser financing and not rights to the Customer. Their mistaken impressions are evident, when one considers that: A. The relevant language from paragraph 6 of Additional Terms and Conditions of the sales contract highlights that attorneys' fees are available regardless of which party brings the action. B. Under Defendant's interpretation, paragraph 6 of Additional Terms and Conditions of the sales contract would encompass one-sided terms that permit Defendant to recover attorneys' fees under any successful action, whether as defendant or plaintiff, but would restrict Plaintiffs from the same benefit. This would constitute substantive unconscionability. C. 13 Pa.C.S. 2302 states that unconscionable contracts and unconscionable contract clauses may permit the court to refuse to enforce the contract, enforce the remainder of the contract without the unconscionable clause, or limit the unconscionable clause as to avoid any unconscionable result. D. Under Defendant`s interpretation, the court would have the ability to limit the unconscionable clause of paragraph 6 to avoid an unconscionable result, i.e. Defendant's availability and Plaintiffs' unavailability of attorneys' fees upon prevailing in any legal action either brought by or against the Defendant. WHEREFORE, Plaintiffs Bradley Kellogg and Patricia Kellogg, respectfully request this Honorable Court deny Defendant's Preliminary Objections and require that Defendant file responsive pleadings to Plaintiff's Third Amended Complaint within twenty days after notice as required by Pa.R.C.P. 1028(d). In the alternative, Plaintiffs respectfully request any relief this Honorable Court deems appropriate. Respectfully submitted, St hanie E. hertok, Esquire PA Supreme Court ID#: 52651 Margaret M. Stuski, Esquire PA Supreme Court ID #: 42478 61 W. Louther St. Carlisle, PA 17013 (717) 249-1177 Attorneys for Plaintiff VERIFICATION I, Bradley Kellogg, verify that the statements made in the foregoing pleading are true and correct. I understand that false statements herein are subject to the penalties of 18 Pa.C.S.A. § 4904 related to unsworn falsification. ~~ 1 Date: ./ . `~ ~, ~ ~ Bradley Ke ogg VERIFICATION I, Patricia Kellogg, verify that the statements made in the foregoing pleading are true and correct. I understand that false statements herein are subject to the penalties of 18 Pa.C.S.A. § 4904 related to unsworn falsification. Date: t -` 2G1- 1 C7 A ., ,- Patricia Kellogg MARGARET M. STUSKI, ESQUIRE PA Supreme Court ID #: 42478 61 West Louther Street STEPHANIE E. CHERTOK, ESQUIRE PA Supreme Court ID #: 52651 61 West Louther Street Carlisle, PA 17013 Carlisle, PA 17013 (717) 249-1177 (717) 249-1177 (717) 249-4514 Fax (717) 249-4514 Fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION -LAW BRADLEY KELLOGG AND PATRICIA KELLOGG, Plaintiffs vs. AUDUBON PARK, Defendant CIVIL ACTION NO. 09-3481 CERTIFICATE OF SERVICE I, Margaret M. Stuski, Esquire, counsel for Bradley Kellogg and Patricia Kellogg, hereby certify that a copy of the Plaintiffs' Responses to Defendant's Preliminary Objections, was served upon Defendant, this ~~ day o If1i.~fi~r , 2010 by first-class mail, postage prepaid, and certified mail, return receipt requested, pursuant to Pa.R.C.P. 1930.4(c). ` M aret M. Stus ,Esquire PA Supreme Court ID 42478 61 West Louther Street Carlisle, PA 17013 (717) 249-1177 Counsel for the Plaintiff PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list within matter for the next Argument Court. ------------------------------------------------------------------------------------------------------- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION -LAW BRADLEY KELLOGG AND CIVIL ACTION PATRICIA KELLOGG, Plaintiffs ~ r,,, ~ `- NO. 09-3481 --z~ ~ ~ ~ vs. ~',~ ~~ ~ ,T' ~ -;a v~~~=~ c~n o~, .P- AUDUBON PARK, ~` -•v Defendant ~ --T ~ i ~ ~ w 1. State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections and Plaintiff s Answer thereto. 2. Identify counsel who will argue cases: (a) for plaintiff: Margaret M. Stuski, Esquire Allied Attorneys of Central Pennsylvania, LLC 61 West Louther Street, Carlisle, PA 17013 (b) for defendant: William Duncan, Esquire Duncan & Hartman, P.C. One Irvine Row Carlisle, Pa 17013 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: March 31, 2010 Date: `~ ~ 5 ~ l (Z_ ;' ~ ephanie E,- hertok, Esq e 'Supreme Court ID No. 52651 Margaret Stuski Supreme Court ID No. 42478 61 West Louther Street Carlisle, PA 17013 STEPHANIE E. CHERTOK, ESQUIRE ~~~~`~''~~"~ PA Supreme Court ID #: 52651 i~F ~'~ ~~~-~~~_n>,;r~~'r~Y ALLIED ATTORNEYS OF CENTRAL PENNSYLVANIA~~~jY ~ ~ P~ ~: ;jQ 61 West Louther Street `` Carlisle, PA 17013 Cli~'~ ,::;; ,~; .~ E ~vidiY (717) 249-1177 g~ ~;,j;aY~..Vr '`~;~~, (717) 249-4514 Fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION -LAW BRADLEY KELLOGG AND CIVIL ACTION PATRICIA KELLOGG, Plaintiffs NO. 09-3481 vs. AUDUBON PARK, Defendant PRAECIPE TO WITHDRAW APPEARANCE TO THE PROTHONOTARY: Please withdraw the appearance of Stephanie E. Chertok, Esq. and Allied Attorneys of Central Pennsylvania, LLC as counsel on behalf of Plaintiffs, BRADLEY KELLOGG and PATRICIA KELLOGG, in the above-captioned matter. Respectfully Submitted, -~ Date: ~ II Step ie .Chertok PA. Supreme Court ID 52651 Allied Attorneys of Central Pennsylvania, LLC 61 W. Louther Street Carlisle, Pa 17013 (717) 249-1177 STEPHANIE E. CHERTOK, ESQUIRE PA Supreme Court ID #: 52651 ALLIED ATTORNEYS OF CENTRAL PENNSYLVANIA, LLC 61 West Lowther Street Carlisle, PA 17013 (717) 249-1177 (717) 249-4514 Fax IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION -LAW BRADLEY KELLOGG AND CIVIL ACTION PATRICIA KELLOGG, Plaintiffs NO. 09-3481 vs. AUDUBON PARK, Defendant CERTIFICATE OF SERVICE I Christie D. Lose, paralegal, for Allied Attorneys of Central Pennsylvania, LLC, hereby certify that on this ~ day of ~ __, 2010, that a true and correct copy of the Praecipe to Withdraw Appearance was mailed to the following: Margaret M. Stuski, Esq. 908 Walnut Street Wormleysburg, PA 17043 Bradley and Patricia Kellogg 1615 Walnut Bottom Rd. Newville, PA 17241-9520 /s/ Christie D. Lose Christie D. Lose, Paralegal 61 W. Lowther Street Carlisle, Pa 17013 (717) 249-1177 Margaret M. Stuski, Esq. 908 W. Walnut Street Wormleysburg, PA 17043 (717) 599-2429 (717) 730-9891 (Fax) Att ID# 42478 Attorney for Plaintiffs BRADLEY AND PAT KELLOGG Plaintiffs vs. AUDOBON PARK et al. Defendant TO THE PROTHONOTARY: r n C-D 7 rTl va M rrt cn r.. ? -? rr? -? G C- COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION No.: 09-3481 Civil PRAECIPE FOR DISCONTINUANCE Kindly discontinue the Complaint of Bradley and Patricia Kellogg in the above referenced matter with prejudice. Margaret M. Stuski, Esq. Attorney for Plaintiffs Kellogg 908 W. Walnut Street Wormleysburg, PA 17043 (717) 599-2429 (717) 730-9891 (Fax) Attorney I.D. #42478 mstuski@yahoo.com