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HomeMy WebLinkAbout09-3978IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEYSTONE CUSTOM HOMES, INC., Plaintiff V. GARY WESNER, Defendant No. fl- 3e el *rI / _9 rol PRAECIPE TO ENTER JUDGMENT To the Prothonotary: Please enter judgment in favor of Keystone Custom Homes, Inc., against Gary Wesner in accordance with the exemplified record from the Prothonotary of York County, Pennsylvania. The address of the Defendant is: Gary Wesner 3820 Ridgewood Road York, PA 17046 The address of the Plaintiff is: Keystone Custom Homes, Inc. 227 Granite Run Dr., Suite 100 Lancaster, PA 17601 BARLEY SNYDE By: Paul nnic 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717-846-8888 Fax: 717-843-8492 E-Mail: pminnich@barley.com PA 74453 Attorneys for Plaintiff OFFICE OF THE PROTHONOTARY Of York County Pamela S. Lee Prothonotary Billie Jo Bones Deputy Prothonotary Gregory E. Gettle Solicitor KEYSTONE CUSTOM HOMES INC Plaintiff Vs. GARY WESNER Defendant To Whom It May Concern: York County Judicial Center 45 North George Street York, Pennsylvania 17401 Telephone (717) 771-9611 Case No. 2009 NO 2984-30 I certify that judgment was entered in favor of KEYSTONE CUSTOM HOMES INC and against GARY WESNER on the 11TH day of JUNE, 2009 in said case in the amount of $257,500.00. Total costs paid by plaintiff to the York County Courts equals $77.25. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of the Court, on the 11 Tx day of JUNE, 2009. Prothonotary By Deputy IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA i KEYSTONE CUSTOM HOMES, INC., Plaintiff GARY WESNER, V. Defendant No. 2009 NO Confession of Judgment Thursday, June 11, 2009 329 PM 2009-NO-002984-30 CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, a copy of which is attached to the Complaint filed in this action, I appear for Defendant, Gary Wesner, and confess judgment in favor of Plaintiff, Keystone Custom Homes, Inc., and against Gary Wesner, as follows: Principal $250,000.00 Collection fee of 5% 7,500.00 Total $257,500.00, Plus costs of suit BARLEY SNYDER LLC By: aul W inmch Attorney for Defendant i lull 1 t FM 12• lllii i? i IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA KEYSTONE CUSTOM HOMES, INC., Plaintiff V. GARY WESNER, Defendant No. 2009 NO ?,.._? /-? Confession of Judg t V COMPLAINT IN CONFESSION OF JUDGMENT Plaintiff, by and through its undersigned counsel, files the following Complaint in Confession of Judgment pursuant to Pa.R.C.P. 2950, et seq. 1. Plaintiff is Keystone Custom Homes, Inc., a Pennsylvania corporation which has an office and place of business at 227 Granite Run Dr., Suite 100, Lancaster, Pennsylvania 17601. 2. Defendant is Gary Wesner, an adult individual who has residence address of 3820 Ridgewood Road, York, Pennsylvania 17406. 3. On February 24, 2006, Defendant, as Maker, executed a Judgment Note in favor of Plaintiff in the principal amount of $250,000, with interest as set forth therein (hereinafter Note). A true and correct photostatic copy of the Note is attached and made a part hereof as Exhibit A. 1 4. As more fully set forth in the Note, Plaintiff is entitled to appear for Defendant and to confess judgment against him for the sums due under the Note with costs of suit and an attorneys' collection fee of 5%. 5. A calculation of the amount due under the Note is as follows: Principal $250,000.00 Collection fee of 5% 7,500.00 Total $257,500.00, Plus costs of suit 6. The Note has not been assigned. 7. Judgment is not being entered against a natural person in connection with a consumer credit transaction. 8. Judgment has not previously been entered on the Note. WHEREFORE, Plaintiff, Keystone Custom Homes, Inc., demands judgment in its favor and against Gary Wesner in the amount of $257,500.00, plus costs of suit and interest as allowed by law. BARLEY SNYDER By: 2626125 Pau ?. Minnich 100 East Market Street P.O. Box 15012 York, PA 17405-7012 717-846-8888 Fax: 717-843-8492 E-Mail: pminnich@barley.com PA 74453 Attorneys for Plaintiff 2 VERIFICATION 1, Robert K. Weaver, hereby verify that the facts set forth in the foregoing Complaint in Confession of Judgment are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Dated: 6 -t% - d1 y Robert K. Weaver EXHIBIT A Dated: February ZN , 2006 JUDGEMENT NOTE $250,000.00 For value received, and intending to be legally bound, the und!rsigned, GARY WESNER, having an address c/o GCW Properties, 3065 Brookfield Drive)"York, PA 17404 ("Maker"), promises to pay to the order of Keystone Custom Homes, Inc., at 214A Willow Vgfey Lakes Drive, Willow Street, PA 17584, or at such other place as the holder from time to time shall direct, the principal sum of Two Hundred and Fifty-Thousand ($250,000.00) Dollars, with interest accruing from and only upon the occurrence of an Event of Default, as hereinafter defined, at the rate of ten (10%) percent per annum, but otherwise without interest, as follows: The entire principal of this Judgment Note shall be due and payable upon (i) the Maker's default in the performance of his obligations under that certain Standard Agreement for the Sale of Real Estate dated November 29, 2005 as Seller of real property situated at 6670 Maxheimer Road in St. Thomas Township, Franklin County, Pennsylvania, as amended by the Addendum to the Land Contract executed by Keystone Custom Homes, Inc. on date even herewith (as amended the "Sale Agreement") and the failure of settlement to occur under the Sale Agreement, or (ii) any other event or occurrence the happening or nonhappening of which entitles Keystone Custom Homes, Inc. to a return of its deposits made under the Sale Agreement. The Maker waives presentment, notice of dishonor and protest. The maturity of this Judgment Note or any payment due may be extended at any time and from time to time without releasing, discharging, or affecting the liability of the undersigned. All rights and remedies of the holder to enforce the obligations of the Maker are cumulative. No delay or failure by the holder to exercise any of its options, powers, or rights shall constitute a waiver of the right to exercise the same or any other right at any time and from time to time. The interest rate set forth herein and applicable upon the occurrence of an Event of Default shall continue notwithstanding maturity or entry of judgment hereon. The Maker hereby irrevocably empowers the Prothonotary or Court or any attorney of any Court of Record within the Commonwealth of Pennsylvania appear for him and to confess judgment against him in favor of the holder, as of any term, without declaration filed, for the above sum with costs of suit and attorneys' collection fee equal to five (5%) percent of the outstanding principal at such time. Such power shall not be exhausted by one exercise but judgment may be confessed from time to time as often as any sum or sums may be due hereunder. Any such confession shall be with or without declaration, with release of errors, and without stay of execution, and the Maker also waives the right of inquisition on any real estate that may be levied upon pursuant to the provisions hereof, and does hereby voluntarily condemn the same and authorizes the Prothonotary to enter upon the Writ of Execution such voluntary condemnation, and he further agrees that his real estate and personal property may be levied upon, executed against, and sold on a writ of Execution, pursuant to the judgment so entered and confessed, with a waiver and release of all relief from all appraisement, stay of exemption laws or rules of court, now in force or hereafter enacted or adopted. The Maker acknowledges that by agreeing that the holder may confess judgment hereunder, he waives the right to notice in a prior judicial proceeding to determine their rights and liabilities, and he further acknowledges that the holder may obtain a judgment against the undersigned and execution against property of the undersigned without his prior knowledge or consent and without the Maker's having an opportunity to raise any defense, set off, counterclaim or other claim he may have, and the Maker expressly waives such rights as an explicit and material part of the consideration. A copy hereof, verified by an affidavit, shall be sufficient for all purposes in the holder's exercise of its.rights hereunder and it is not necessary that the original be filed as a warrant of attorney. This Judgment Note shall inure to the benefit of and be enforceable by the holder, and the holder's successors and assigns, and shall be binding uIon and enforceable against the undersigned and his personal representatives, heirs and assigns. Time shall be of the essence in the payment of any amount due hereunder. Upon the occurrence of an Event of Default the Maker shall reimburse the holder for all its reasonable attorneys' fees and litigation costs incurred in enforcing its rights hereunder. The following shall constitute an Event of default: The Maker's failure to pay the principal balance of this Judgment Note in full when due. This Judgment Note evidences a business obligation and not consumer indebtedness. Executed this the E ."day of February, 2006. Witness as to Gary 2 EXPLANATION OF RIGHTS IN CONNECTION WITH SIGNING OF AN INSTRUMENT CONTAINING A CONFESSION OF JUDGMENT The undersigned, Gary Wesner, clearly and specifically understands that by signing the foregoing Judgment Note, which contains a Confession of Judgment clause, of date even herewith that: 1. He authorizes the Holder, and the Holder's successors and assigns, to enter a judgment against him at the Holder's discretion and in favor of the Holder without notice and without formal declaration of default for nonpayment, which entry will give the Holder a lien as security for payment upon the real property owned by the undersigned at the time of entry, and a lien on the personal property owned by the undersigned at the time it is given to the sheriff for execution, and further that he authorizes the undersigned to have a Writ of Execution issued against property of the undersigned and such property of the undersigned sold by the Sheriff pursuant to such Writ. 2. He waives all right to notice and to have an opportunity to be heard prior to the entry of the judgment on the court records, the issuance of a Writ of Execution, the levying by the Sheriff upon property of the undersigned, and the sale of property of the undersigned by the Sheriff, understanding that the only method of challenging this judgment, Writ of Execution, or levy would be by proceedings in court to open or strike the judgment, which proceedings would result in substantial attorneys fees that the undersigned would have to pay. Without such Confession of Judgment clause the Holder would have to file suit against the undersigned, which would give him an opportunity for a hearing, but which he is giving up by reason of the confession. The undersigned acknowledges receipt of a copy of this affidavit and certify that, after reading and fully understanding it, he has executed this affidavit intentionally, with full understanding of its terms and importance, voluntarily waiving all the above rights and being willing to execute the Judgment Note and this affidavit despite the consequences described above. Executed on this the dI day of December, 2005. Affirmed and subscribed before me this d ? day of December, 2005 44 Notary Public 440,C&dlC/ County, Pennsylvania COMMONWEALTH OF PENNSYLVANIA Notarial Seal Krista M. Sultzbach, Notary Public West Lampeter TV Lancaster County My Commisslonires Mar. 3, 2009 Member, Pennsylvania AeZation of Notaries IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA" ? KEYSTONE CUSTOM HOMES, INC., Plaintiff GARY WESNER, V. Defendant No. 2009 Confession of Judgment Thursday, June 11, 20M 12:17 PM 2009-NO-002984-30 NOTICE OF FILING JUDGMENT Pa.R.C.P. 236 (x) Notice is given that a judgment in the above-captioned matter has been entered against you in the amount of $257,500.00, plus costs of suit and interest as allowed by law, on June 1 2009. (x) A copy of all documents filed with the Prothonotary in support of the within judgment is/are enclosed. Pamela S. Lee Prothonotary of York County By: Deputy if you have any questions regarding this Notice, please contact the filing party: Paul W. Minnich, Esq. Barley Snyder LLC 100 East Market Street P. O. Box 15012 York, PA 17405-7012 (717) 846-8888 ('T'his Notice is given in accordance with Pa. R.C.P. 236.) Notice sent to: Gary Wesner 3820 Ridgewood Road York, PA 17406 Gary Wesner 2550 Kingston Rd., Suite 221 York, PA 17402 Gary Wesner 3065 Brookfield Drive York, PA 17404 YORK COUNTY PROTHONOTARY Page 1 of 1 bjl 6/12/2009 2009-NO-002984-30 KEYSTONE CUSTOM HOMES INC vs. WESNER GARY Action 06/11/2009 JUDGMENT CONFESSED PURSUANT TO WARRANT 04307 OF ATTY 06/11/2009 COMPLAINT AND CONFESSION OF JUDGMENT ON 04452 NOTE=1N THE AMT OF $257,500.00 06/11/2009 AFFIDAVIT RE: NON-CONSUMER CREDIT 05164 TRANSACTION 06/11/2009 NOTICE GIVEN RE: PA RCP 236 W/DOCUMENTS 05032 FILED 6/11/09 Party Name D. WESNER GARY P- KEYSTONE CUSTOM HOMES INC 1 7 1 1 Atty Name M/NNICH, PAUL Total Number of Pages 10 ?i N ?q? _°?nll Q ?I o O N H Q C O .CY. C j 0O N e E ? a 23 ? C N W ? L_ p Ir c? E Flllr.rU-'? Or THE 11 2( U9 JIUR 15 Ah IC' 2 2 i .; LV { ,, IIA a?u??v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEYSTONE CUSTOM HOMES, INC., Plaintiff V. GARY WESNER, Defendant No. OF- h7f 01 'U! I _WhM NOTICE OF FILING JUDGMENT Pa.R.C.P. 236 (x) Notice is given that a judgment in the above-captioned matter has been entered against you in the amount of $257,500.00, plus costs of suit and interest as allowed by law, on June _J ?_ 'd?, 2009. (x) A copy of all documents filed with the Prothonotary in support of the within judgment is/are enclosed. Curt Long Prothonotary of Cumberland County By: Deputy If you have any questions regarding this Notice, please contact the filing party: Paul W. Minnich, Esq. Barley Snyder LLC 100 East Market Street P. O. Box 15012 York, PA 17405-7012 (717) 846-8888 (This Notice is given in accordance with Pa. R.C.P. 236.) Notice sent to: Gary Wesner 3820 Ridgewood Road York, PA 17406 Sheriffs Office of Cumberland County FI R Thomas Kline w THEY Sheriff •? 1 Ronny R Anderson J, L 13 Chief Deputy Jody S Smith GI ! vV f Civil Process Sergeant 0FE' E ` ""` > `RIFF Edward L Schorpp Solicitor Keystone Custom Homes, Inc. vs. Gary Wesner SHERIFF'S RETURN OF SERVICE Case Number 2009-3978 06/18/2009 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: Gary Wesner, but was unable to locate him in his bailiwick. He therefore deputized the Sheriff of York County, PA to serve the within Notice under rule 2958.1 of judgement and execution thereon according to law. 06/24/2009 York County Return: And now June 24, 2009 I, Richard P. Keuerleber, Sheriff of York County, Pennsylvania, do herby certify and return that I served a true copy of the within Notice under Rule 2958.1 of judgment and execution thereon, upon the within named defendant, to wit: Gary Wesner by making known unto himself personally, defendant at 3820 Ridgewood Road York, PA 17406 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $37.00 July 09, 2009 COUNTY OF YORK OFFICE OF THE SHERIFF SER )1? ;C96AOLL 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE NSTRWT'IONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY U NE I THRU 12 DO NOT DETACH ANY COPES 1 PLAINTIFF/S/ 2 COURT NUMBER 2009-3978 KEYSTONE CUSTOM HOMES, :INC. 1 TYPE OF WRIT OR COMPLAINT 3 DEFENDANT/S/ GARY WEBNER ICE UNDER RULE 2958.1 OF JUDGdIi SERVE 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED. ATTACHED, OR SOLD 3820 RIDGEWOOD ROAD 6. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO, CITY, BORO, TWP. STATE AND ZIP CODE) AT YORK, PA 17406 7 INDICATE SERVICE O PERSONAL a PERSON IN CHARGE XI DEPUTIZE -) CERT MAIL U 1 ST CLASS MAIL U POSTED -I OTHER NOW June 18 -12009 I, SHERI OUNTY, PA, d hereby deputize the sheriff of YORK COUNTY to execute t ake return th ccording to law. This deputization being made at the request and risk of the plaintiff. SHERIFF 8. AL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE c OUT OF CO CUMBERLAND -A-U.1 F99 PAID BY Art W. NOTE: ONLY APPUCA13LE ON WRIT OF EXECUTION: N.B.. WAIVER OF WATCHMAN - Any deputy shenff 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, desWc Lion, or removal of any property before sheriffs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNATURE 10. TELEPHONE NUMBER 11 DATE FILED PAUL W. MINNICH BARLEY SNYDER, :LLC 17-846-8888 n n mr%v rn10 vnDv nT 17Anr 6-18-09 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to De mailed) CUMBERLAND COUNTY SHERIFFS OFFICE - -- - ---- _= SPACE BELOW FOR USE OF THE SIERFF - DO NOT WRITE BELOW TM UNE 13. 1 acknowledge receipt of the writ or complaint as indicated above. MJ MCGILL YCSO 1 14. DATE RECEIVED 6-19-09 15 Expiration/Hearing Date 7-19-09 16. HOW SERVED: PERSONAL RESIDENCE ( ) POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER( ) SEE REMARKS BELOW 17. O 1 hereby certify and return a N FOUND because I am unable to locate the individual, company, etc named above. (See remarks below.) 18. N TLE OF IDU SE 1JEP / LIS ADDR S HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19 Cjbte of ervice d6 aye 20 Time of Servce d 21. ATTEMPTS Time I Mile 1 9 Date Time pAiJps nt I D ate Time Miles Int Date Time Miles Int. Date Time Mile Int. Dale Time Miles Int. 22. REMARKS 23. Advance Costs 21 Spirvice Costs 25 N/F 26. Mileage 1 27 Postage 28. Sub Total 29. Pound 30 Notary 31 Surchg . 32 Tot. Costs 33 C oststg Due Refund Check No $100.00 d 11,061 160 ,06 / 4J 13?16< 34. Foreign County Costs 35 Advance Costs 36 Service Costs 37 Notary Cert 38 Mileage/PostageitNot Found 39 Total Costs 40 Costs Due or Refund - 2nd SO ANSWERS 41. AFFIRMED and subscribed to Det / 44. Signature of ! n t 45. QA 42. day JULY 20 09 43 `6 7 7 Dep. Sheriff 1 ? d v EALf h 02 TN N I,IOTAR 46. Signature of 47. DATE NNOtari Seal County Sheriff Itristel Stambaugh, Notary put>Uc RICHARD P- ER, RIFF 2-09 City Of York, York County M' COmr>7ItSim E)Oles Ma 15, 201 1 48 Signature of Foreign County Sheriff 49 DATE 50. IAW'U=' , 'VrAddlsc'N ETURN SIGNATURE D1 uAIt KtUtIVtU OF AUTHORIZED I SUING AUTH A E 1. WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriffs Office 4. BLUE - Sheriffs Office M. dd NHOA 5h Wd 61 Mflr JJIH3HS 3Hi JO 301AA0 y 03A13O3d A&a, .