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HomeMy WebLinkAbout09-4661Merchants Express Money Order Company, Inc. PLAINTIFF V. Juanita D. Tobin Individually, jointly and severally, DEFENDANT and Frank A. Tobin Individually, jointly and severally, DEFENDANT and Tobin Convenience, Inc. Corporation DEFENDANT COURT OF COMMON PLEAS, CUMBERLAND COUNTY &I 'l T???!? , 2009 No. CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the compliant filed in this action, I appear for the Defendants and confess judgment in favor of the Plaintiff and against the Defendants as follows: Principal: Interest: Lost Fee Income: Attorney Fees: Costs: Total: $10,195.51 $ 611.73 $ 0.00 $ 3,242.17 To be determined $14,049.41 'Kevin M. utkins, Esq. Attorney for Defendants Merchants Express Money Order Company, Inc. PLAINTIFF V. Juanita D. Tobin Individually, jointly and severally, DEFENDANT and Frank A. Tobin Individually, jointly and severally, DEFENDANT and Tobin Convenience, Inc. Corporation DEFENDANT COURT OF COMMON PLEAS, : CUMBERLAND COUNTY lYl?'12009 No. 0// . NOTICE NOTICE IS GIVEN THAT A JUDGMENT IN THE ABOVE-CAPTIONED MATTER HAS BEEN ENTERED AGAINST YOU. 4RIOTHODTB RY If you have any questions concerning the above, please contact: Kevin M. Lutkins, Esq. Merchants Express Money Order Company, Inc. 1029 Mumma Road P.O. Box 8863 Camp Hill, PA 17001-8863 (800) 543-8207 Merchants Express Money Order Company, Inc. PLAINTIFF V. Juanita D. Tobin Individually, jointly and severally, DEFENDANT and Frank A. Tobin Individually, jointly and severally, DEFENDANT and Tobin Convenience, Inc. Corporation DEFENDANT COURT OF COMMON PLEAS, CUMBERLAND COUNTY 2009 No. COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY COUNT I - CONFESSION OF JUDGEMENT 1. Plaintiff is Merchants Express Money Order Company, Inc. (hereinafter "MEMO"), a Pennsylvania corporation wholly owned by the Pennsylvania Food Merchants Association that engages in the issuance and sale of money orders and whose address is 1029 Mumma Road, Wormleysburg, Pennsylvania, 17043. 2. Defendant Tobin Convenience, Inc., (hereinafter "Tobin"), is a corporation located at 7501 Two Notch Road, Columbia, South Carolina and doing business as Tobin Convenience Gas Station. 3. Defendant Juanita D. Tobin (hereinafter "J. Tobin"), is an individual residing at 308 Firebrick Lane, Columbia, South Carolina, 29223. 4. Defendant Frank A. Tobin (hereinafter "F. Tobin"), is an individual residing at 308 Firebrick Lane, Columbia, South Carolina, 29223. 5. Defendants J. Tobin and F. Tobin are the owners and/or operators of Defendant Tobin, and entered into a Personal Money Order Trust Agreement ("Trust Agreement") on behalf of Defendant Tobin and themselves on or about August 25, 2003. A true and correct copy of the Trust Agreement under which Defendants J. Tobin, F. Tobin and Tobin are confessing judgment is attached hereto as Exhibit "A". 6. Defendants J. Tobin and F. Tobin, with the intent to induce MEMO to enter into a Trust Agreement with Defendant Tobin, entered into the Personal Indemnity and Guaranty on or about August 25, 2003. A true and correct copy of the Personal Indemnity and Guaranty under which Defendants J. Tobin and F. Tobin are confessing Judgment is attached hereto as Exhibit «B", 7. Pursuant to the aforementioned Trust Agreement and Personal Indemnity and Guaranty, the Defendants were to act as Trustees of all money orders, money order equipment and proceeds received from the sale of money orders sold at the Defendants places of business. 8. By entering into the Trust Agreement and Personal Indemnity and Guaranty, Defendants agreed to act as Trustees and in a fiduciary capacity relative to Plaintiff with respect to all money orders, money order equipment, and all Trust Funds in Defendants possession. 9. The forgoing judgment against Defendants J. Tobin, F. Tobin, and Tobin, is not being entered by confession against a natural person in connection with a consumer credit transaction. 10. The Plaintiff has not assigned the Trust Agreement and Personal Indemnity and Guaranty under which judgment is being confessed. 11. The Plaintiff has not entered judgment against Defendants in any jurisdiction for the unpaid sum of $14,049.41 or any additional amount for a total of the debt demanded here. 12. The Defendants jointly and severally acted as selling agents for Plaintiff from on or about August 25, 2003 until March 2, 2009. 13. Pursuant to the Trust Agreement, Defendants are required to hold all monies received by them from the sale of money orders, including money order fees (hereinafter "Trust Funds"), separate and apart from other funds of the Defendant for collection by the Plaintiff through electronic or other means. 14. Defendants received money orders from Plaintiff and did in fact sell money orders but failed to remit the Trust Funds to Plaintiff when required under the Remittance by Electronic Funds Transfer Agreement (hereinafter "Rider") to the Trust Agreement. A true and correct copy of the Rider is attached hereto as part of the Trust Agreement in Exhibit "A". 15. The Plaintiff attempted to collect the $10,1895.51 in Trust Funds from Defendants on February 3, 2009, and again on February 10, 2009, through an Automated Clearing House (hereinafter "ACH") method. 16. The Plaintiff, or its designated check-clearing banking center did not receive the payment of the Trust Funds on February 3, 2009 or on February 10, 2009 as required by the Trust Agreement and the Rider. 17. The failure of Plaintiff or its designated check-clearing banking center to receive trust funds from the Defendant in accordance with the Trust Agreement and its Rider constitutes an event of default allowing Plaintiff to enter judgment against Defendants. 18. Pursuant to the Trust Agreement, the Plaintiff suffered damages by the Defendants conduct as follows: Principal: $10,195.51 Interest: $ 611.73 Lost Fee Income: $ 0.00 Attorney Fees: Costs: Total: $ 3,242.17 To be determined $14,049.41 19. Plaintiff demands judgment in the aforementioned amount as authorized by the Warrant of Attorney contained in the Trust Agreement attached hereto as Exhibit A. 20. The Warrant of Attorney contained in the Trust Agreement is less than twenty (20) years old. V41EREFORE, Plaintiff demands judgment in the amount of $14,049.41 as authorized by the Warrant appearing in the attached Trust Agreement, together with Lost Fee Income, interest from the date of judgment and costs. COUNT H - BREACH OF CONTRACT 22. The averments contained in paragraphs 1 through 21 are incorporated herein by reference as if set forth in full herein. 23. Defendants J. Tobin and F. Tobin signed the aforementioned Trust Agreement on behalf of themselves and Defendant Tobin. 24. Defendants J. Tobin and F. Tobin signed the aforementioned Personal Indemnity and Guaranty thereby making themselves personally liable for any default by Defendant Tobin under the Trust Agreement. 25. The Defendants failure to remit all Trust Funds in their possession derived from the sale of money orders is a violation of the terms and conditions of said Trust Agreement and thus constitutes a beach of the Trust Agreement and the fiduciary relationship created pursuant thereto. WHEREFORE, Plaintiff demands judgment in the amount of $14,049.41, as authorized by the Warrant appearing in the attached Trust Agreement, together with Lost Fee Income, interest from the date of judgment and costs. COUNT III - BREACH OF FIDUCIARY DUTY 26. The averments contained in paragraphs 1 through 25 are incorporated herein by reference as if set forth in full herein. 27. The aforementioned Trust Agreement created fiduciary duties Defendants owed to Plaintiff. 28. Defendants, jointly and severally, breached their fiduciary duties to Plaintiff by: a. failing to hold the Trust Funds separate and apart from other funds of the Defendant; thus commingling Trust Funds with Defendants other funds; b. failing to hold the Trust Funds as property belonging to Plaintiff; C. failing to remit all Trust Funds to Plaintiff as required under the Trust Agreement; d. appropriated the Trust Funds for Defendants own use and benefit; e. deprived Plaintiff of the use and benefits of the Trust Funds. 29. Defendants intentionally, willfully, maliciously, and with wanton disregard for Plaintiff s rights, engaged in the conduct described above. 30. By engaging in the aforementioned actions, Defendants breached the fiduciary duty they owed to Plaintiff under the terms of the Trust Agreement. WHEREFORE, Plaintiff demands judgment in the amount of $14,049.41, as authorized by the Warrant appearing in the attached Trust Agreement, together with Lost Fee Income, interest from the date of judgment and costs. COUNT IV - CONVERSION 31 reference as if set forth in full herein. 32. Plaintiff avers, upon information and belief, that Defendants used the Trust Funds properly due and owing Plaintiff for their own purposes. 33. The Defendants use of the Trust Funds for their own purposes deprived the Plaintiff of the use and benefit of the Trust Funds and constitutes conversion of those Trust Funds under the laws of the Commonwealth of Pennsylvania. "EREFORE, Plaintiff demands judgment in the amount of $14,049.41, as authorized by the Warrant appearing in the attached Trust Agreement, together with Lost Fee Income, interest from the date of judgment and costs. COUNT V - UNJUST ENRICHMENT 34. The averments contained in paragraphs 1 through 33 are incorporated herein by reference as if set forth in full herein. 35. By failing to remit the Trust Funds to Plaintiff, Defendants wrongfully retained the Trust Funds properly belonging to Plaintiff. 36. Plaintiff conferred the benefits of the use of money orders and other property and which Defendants accepted, retained and enjoyed. 37. Defendants' failure to remit the Trust Funds and other property of plaintiff has harmed plaintiff in the amount of the Trust Funds, value of the property and interests and costs. 38. Defendants are unjustly enriched as a result of their retention of the Trusts Funds and The averments contained in paragraphs 1 through 30 are incorporated herein by other property properly belonging to the Plaintiff. WHEREFORE, Plaintiff demands judgment in the amount of $14,049.41, as authorized by the Warrant appearing in the attached Trust Agreement, together with Lost Fee income, interest from the date of judgment and costs. COUNT VI - CLAIM FOR POSSESSION OF PROPERTY AND TRUST FUNDS 39. The averments contained in paragraphs 1 through 38 are incorporated herein by reference as if set forth in full herein. 40. Pursuant to the Trust Agreement, all money orders, Trust Funds and money order equipment are Plaintiff's property. 41. Pursuant to the Trust Agreement, Defendants were required to segregate and hold all Trust Funds apart from other funds. 42• Pursuant to the Trust Agreement, a trust is impressed upon all funds that are commingled with Trust Funds. 43. Plaintiff is, by operation of law, the owner of and Defendant is the trustee for all assets commingled with the Trust Funds. 44. Plaintiff has made numerous demands for the return of the Trust Funds and other property in Defendants' possession and Defendants have failed or otherwise refused to remit the Trust funds and other property to Plaintiff. WHEREFORE, Plaintiff demands judgment in the amount of $14,049.41, as authorized by the Warrant appearing in the attached Trust Agreement, together with Lost Fee Income, interest from the date of judgment and costs. Kevin M. utldns, Esq. Attorney for Plaintiff Attorney ID: 76859 0 A l) MERCHANTS EXPRESS MONEY ORDER COMPANY/MEHO MONEY ORDER COMPANY PERSONAL MONEY ORDER TRUSTAGREEflWr Tf•IIS AGREEMENT is naMe between b1mCfIA1?TlS CRESS MONEY ORDER COMPANY, or MEMO MONEY ORDER COMPANY OF NEW YO d/b/a MEMO, MEMO MONEY ORDER COMPANY, M/b/a MEMO, Pndi idr? and/or entities identified below, hereafter referred to as Trustee(s). INC, d/b/a MEMO, a New York Corporation or any subsidiary d?/? MAO (?'MCt' and the " In consideration of the mutual promises contained in [kris agreement and intending to be legally bawd ardivid<al(s) Age-7. MEMO appoints Taste to act as a special agent of MEMO at each of Trustee's retail hereby, die parties ? as ?? establishments appro aPpoint-eint m accordance with the teams and conditions specified in this Agreenat and in the attached Rider 1> ?? for the sale of money orders s issued MAO. Trustee adepts such 2 Tnrst Rem orposated and made a part haeo£ hhp. Trustee shad receive and hold in trust for MEMO all blank money orders delivered to Trustee by MEMO and all mdud'ng without li m i atiorn the m o ey order fees established by MEMO from time to time ( ? received Trmfro ?? 3• Murry tinder Fees. In consideration of the services rendered to Trustee by fians'?. Trustee shad hold the trust finds separate and apart from other funds of Tnstee,, may be modified by MEMO at any time upon thirty (30) days prior notice to Tnmtee O, Trustee shad pay MEMO a fee ("Money Order Fees specified in the attacled rider Money Order Fees 4• Supplied by MEMO. For the sole purpose of selling money orders pursuant to this Agreement, MEMO will supply Trustee with the following A An adequate supply of blank money orders, serially numbered and part): the second part being the ac canting (store) copy; and the third consisting o two o r duce panne The first part bang the rrbrey order instnurenc itself (?/ s B• part being An agency installation, folder containing adequate supplies of monney order puckasees copy with a three part foam p ? with two necessary the coon, and to order reporting °?s marling labels, lost reports and for for record keep ng. 8°oB operation of a money program Furthrnmor? Trustee agrees to comply with order claim cards, stop an Federal and State payment linens and varies other forms G A money order i[rnprinter of the regulations governing currency transaction quality necessary to beoff twoMHe tit types consisting of electronic dollar import the money order nxxx-y order dispensers value fianly into the, money order so M to ir>f s sole akerapon of any sern. Money order im?? shall money order dispensers shall contain an ' -anual mAE ?? At MEMO's son caber. Electron aerie type e of dispenser shad be issued in '?Yog plate, which shad read "I?IEb10" followed by the Trustee I.D. number. pined by MEMO to indicate Trustee La number on imprinted money orders. Such money order imprinter shad at an times continue to be the s ? ? ??? shad be not be removed fxorn the Trustee's retail establishment where it was properly of MEMO and shah imprint money orders mist be approved by MEMO. °Y'Bd by MEMO. Any other money order dispenses not owned by MEMO a used by Trust= to D. Such advertising materin! as MEMO in its sole discretion shall determine 5• Right to an Accounting; Notwithstanding any other provision of this Agreement; MEMO shad have the right; ' at all reasonable inspect and perform an accounting of or cruse its employees or agents to inspect and perform an as h rice ?s,`?' with or without no th e, to aunts Tnuoee's pcopies remises and y orders sold and the Trustee's inver" of unissued money orders. A Barge will be assessed currant or the cash re nses i Money Under F? the breach of this Agreement or if the audit discloses a breach. (See audit fee/penalty fee schedule-). tt Trunsoee to recover expenses incurred by MEMO when an wdrtgis(rrnd)e due to T s G Rules and Regulations. Trustee shad comply with the fi Novi ng miles and reWlations: A No money order shad be issued or sold to anyone B. Only cash shall be accepted payment for payment of any obligation of Trustee or used in any manner for Trustee's own purposes. fed as P nnxey orders issued or sold No duck or other MEMO until actually coded MEMO to have the option in each case as to whether to deposit p d or ? Trustee to or for MEMO shad constitute a remittance to C. Tnnstee shad safeguard all unissued any such. paper for collection. mxxey orders and the money order imprinter with the highest degree of cam Tlx am orercised in e to hmee seria bllet in arr. event not later epun twenty-four (24) hous??m dne? money o? stolen or missing and all other infonation relating to the money orders shod be at least as that event; pon disc ha money orders, Sport shall be by rmless regarding u h r and all storm or telephone and immedia* confirmed money ? ? ? be s payment MEMO that payment can be and toppe d on such missing or stolen 0`? hold any _ nassing a" orders as well as moon sol to T ustee. responsible urs for all losses arising fron; m an and shad tut of any order irriprinters issued , responsible for or any issued money mpliance with the disperses stolen or damaged as a result of misuse, negligence, a? fire or otherwise- Said F T? shorn be rxkmmfy MEMO and ? air co safeguardin g care, and reporting obligations set forth in this paragraph responsibility a pity of Trustee shad not be >;mmrited by I a>stee's n Trustee shall at all times maantain a sound financial g?? from [fie sale m nosey order well not be position and proms current financial information to MEMO as requested by MEMO. Tnst m shad conduct operators so that the funds MEMO imste s should such " jeopardy nor seem in the opinion of a reasonable person to be in mean that these has been should P adverse Nootification to MEMO shall be made promptly by telephone and rnr><n jeopardy arid lidately con6mmird? the miuance of money cedes and shall no ial change the business, operations, condiwn (financial or become insolvent; generally unable to pay its debts as they become due, involuntarily suspended transaction of otherwise) or business, prospects made of the Trustee and that neither or any Guarantor has proceeding described in Paragraph 7B or consented to any such order for rdg declaration, finding or relief described a to eealr ci proceeding descrbed for the benefit of instituted a to any such action appointment or to the taking of possession by any suds official or all or any substantial part of its therein, whether institute a ° 8 in Paragraph 7B of consented in fiaduranee of any of the foregoing A lad of scud financial condition shall also include when Trustees property, P? or not any such the sproceeding ame is d is in any sum ar)? reran any or fitils to pay its creditors 8a'?lly or makes representations to MEMO or to other creditors that it must den ay, on the date which conditions which, ame isn the the an s y disumpscePtiaoym able hereunder appears that Trustee is no longer in a sound financial condition y any such payment under oFMEMO, it it E Trustee shall provide MEMO by facsimile transmittal or registered mail three (3) weeks advance notice of ro the management of Trustee's business, the sale of fifty-one percent (51%) or more of Trustee's assets, or the entry ??(s)temunation oaf business affiliated with Tnutee. Transactions included within this paragraph G(E) include transfer of stock of Trustee, sale of partnership, interests, limited liability c similar transaction which effects a change in ownership or control of Trustee. No such transaction shall be approved until any successor documrntatiY partnership's ia[erest or any on, including a trust agreement No transaction, discussed in this subparagraph, shah be effective wyithout the prsuccessorior writtentity ,en if approval rn ofMEME into nto Any attempt by Trustee to effect such a transaction with MEMO approval shall be void, ab initio as to MEMO. If Trustee fails to give such notification, Trustee, as well as its successor, shad remain liable for the payment of all sumps and the performance of an duties required by the Ag change within the meaning of this paragraph shall bind Trustee's successor or assignee to the terns and conditions of this Agreemennt Any of ownership or other assignment F AtTr stm s retail establish mu where money orders are sold, Trustee shad sell only MEMO mnorey orders. G. Trustee shad sell MEMO nosey orders only at Trustee's IL Trustee: shad specifically approved places of business or fixture place of business as approved by MEMO. Term of renaun open during the cause of normal business hens for the duration of this agreement F2&= to do so shad Agreement The tern of this Ageer rent shad run for a period of five (5) years renew um new outo a breach of this cc eament the initial 6ve••year terra of this llgeerrhan; Trustee may terminate this Agetement from the date of this Agreement and shad renew Qy for successive five then P? writtrn notice to Tnstee In the event Trustee does not provide proper upon ix (6) meads poor written notice to MEMO, and MEMO may terminate this (5) year periods. After shity (60) and/or AS-rient effem Fee income shall be calculated ustees without notice, u8 T most recent 10 week sans atermination verage •I n Td be responsilale for lens[ fee income m MEMO for the dtrn of d e ncontracc in enter according to the provisions of.Paragaph 11 hereof upon the?happe ning of any of the following may d- Aga-ment at any time, manly and MEMO or its designated check-clearing banking enter does not receive theap?t?rntvnn fees), within de time period and on the terms specified in the Rider to this AgeCnert- --b documentation or payment of test finds (mending money tern sales proceeds and order B• Trustee or any Guarantor cortanits any act ofinsolvency, any Guarantor of law, or any law for the relief o; or rehMg to debbors; , or upon the filling by Trustee or any petitions under any tasnk:uptty, ,,,?,,t?,?,,? possession of the property or the filling of any involuntary petition against Trustee under any bankruptcy s or the 2ppointment -"""? 1. or trustei: to C none or wets ofTrusme; or the subjection of anry Truwe's property or asses to tahltS of a receiver or l agen .tale The s any Levy, scizurt? assignment or sale for or by any aeditor orgoveahmar agency. Perfomance by Trustee of any obligations of Trustw pursuant to this Agreement. ? mg of any of the foregoing events shall be a dealt under this nd, T $ua<ancor(s) with Consumer Payment Services, o any without any notice from MEMO, 8 T nOMF?M duation of the mntrra in effect y related con>pany. In the event MEMO tearrinates d- constitute agreement due to a defikult under and all greements OfTnistee and/or a ?T sbeIl' amble for lost fee -c-nn3nfiw%(snk.xeU)Pon the expiration copies or termination of this Ag?4 Trustee shall deliver to _ Ofnioney orders order foams ? the n ? order ?'? aid any and ? materials or doa.Knts pr cacti receipts fmm the sale of money orders, money order fees due ?'? t06 20 blanic money notice provided by MEMO 'OM coverian"? 6b f for any reason ti thari e esirati°a of this AVIOCEnCilt slid be Trusex hemurkr shall survrve? the -Tesr"on or "'mariat"on of ths 'S but not tcr upon causing uahcler paragraph 7 hereof or CIZIPowers any eventdMnb0d ' ?b1Y authorizes and Pu+BmP appear for and to attorney Pmehoao? or applicable Money Order Fees, accnred iaterect ennfesa or enter judgment aga t T orusoee f? the faoeamo ODUrt of record, upon or after the occur many of all together with OTCases and coat of writ and thereon, interest expense not t0 exceed eighteen percent ?gy?? and y orders sold Pursuant to this Agreement, the reasonable 2110 --Ys fees and said fees not ro exceed truly for any Pmt (?/•) Other .. due MEMO hooter this Agreement, all 1 ttOmey, ro legal fees incumed in any Bankruptcy of Trustee, For such pn,? this Agreement or said amount and sums, for -&ct_. as Mdd remedies _ he. thon terms of this Agr?t and may be warrant The copy of MF1?iO provided hock and theme by davit by Trustee or on behalf of Tn» said exercise any such right or remedy shall in m even *glyl t 'v*. or at the sok distaetion of MEMO ?obtamas haste shall be enforced in accordance with the Trustee shall not be ochausted by the initial expense mnsenued a `?' a release thereof The authority and Pm?? oo t>a?orc shall occur. The fi>hue to and the same me or a copy hereof shall be a suf5cient Warrant therefore, One or may be IMCemmd, fmm time to tmme, as often as 11?IO9 appear sinfor and citinteils g deem or I enter ?? ?t Agreem more sums described in this parigraph• In the event pdgmrew may be canfesaed or entered in the y and deafrable, and this whatsoever, then a SIIy Judgment entered against Trustee different for part who any attorney or the Prothonotary or Cledr of'nY court of ?ermder is strid. or opened uPoa ° same or by or on Trustee's eh all or any of the ct, however, to the limitation that such record is hereby authorized n lest to cure in the late entry confeasron of 'lodgment may and empowered be done to cure a for gain PP? and oxmfess or enderludg r against extent that such errors are subrooedings. Trustee; ab auTbjp p any errors in prior and only and to the 10. Li hIity regardless of Trustees fiaedorn from negligence or other fruit; shall be abso A To make remittance to MEMO of the face I.* liable: amount: of all money orders sold, the apple Money fea mysteriouhc on non- from B. To remit to MEMOm stiem? disappearance or arriount of Bruns of any fry o s possession by reason of the honest or dishonest act an MEMO under A of the or otherwim may expended or for YPin, act MG presented PPayrneri? whether or not MEMO is legally liable to pay the same This h O in paying any motley orders delivered by h O to Trustee that are ] 1. Agreement subparagraph Thistee's duties wider this shall not apply CO any money order as to which Tnrstee shay have fogy Pedormed dY penal Trustim shall lindemnify, defend and hold harmless MEMO from and against any and all losc omission to act; whether hod expenses (nchxling but not limited to, settlement cost and reasonable IV11 and damages,, W , clamors, actions, suits, ]? es , dishonesS negligent or otherwise by Tnustre or Trustee's accounting fees) sustained he MEMO resulting a assessments' resentatives seenrity. As further consideration of ?Ple9?, agents, assocaoes or reprom within cew>dnouu 6orn or arising out of any act or dim ofpa&). rustee interest in Trustee's bank app by MEMO as its agent, and in order to protect MEMO's scope continuing recur such accou rt4 inventory accounts receivable, assi tmeht of lease, and heroes at all Trustee locatiorm Trustee agrees Texact herebygram tt MEMO a Y tyS including but not ? to, recorded Uniform Commercial Cade-F Staee?nt CCl s to M dO serum Y create or collateral as it deems necessary for axntncal (U ()) fillings, F to pe?ea forth err h ongoing approval and for the duration of the Agreement In the event Trustee ME chariges reserves the r fight co PacBrap ? his without require additional an approved trust 6(E) his ? notice and approval by MEMO as set forth therein, Trustee hereby grarh a serum in the ,proceeds of Burn pnor account lished. airy such transaction turn] such time as 13. Notices. Except as otherwise stated, all notices, correspondence, and communications under this IF TO btF.1VEC? MEMO Agreement shall be in writing and addressed as follows: P.O. Box 8863 IF TO TRUSTEE See attached Rider Camp Dill, PA 1700148863 14. Choice of Law This agreement shall be construed under and in accordance with the laws of the Commonwealth coriffict The parties consent a venue and personal won in Cumberland County, of Perunsylvania cis 8 any miles to the twice or in Pennsylvania onheav emu Pennsylvania, or, in the case of MEMO's exercise of?'s relating of Taws l5. Non-Waiver. Tine fa>hhre of MEb1O to enforce hunter Paragraph 11 hereof in any other oouut of record ehere. Prue isior Non-Waiver. this Agreement o and shall not of of ce any provision of this Agreement or its failure to dedare a default under this right and/or power of MEMO to Agreement shall not c n ofa waiver or any breach or of any Enforcement In the event of default under the terms of this proceed as fully as if it had not failed to enforce any provision of this Agreement Pefiirce tie in the nut of Agreemen? Trustee agrees that MEMO shah M addition to all rights it n*z have under the law, have the ' Md baria rightsh the equity Furthermore; Tnatee agrees s to event of airy default by Tnuoees C0nS= to the jurisdiction of a coact of equity regarding the enforcemheu of this Agreement °f °n8 specified 7 Cost of Funforcoxnmt Trustee shall pay, on demand by MEMO, all costs and openses mh and/or the erforoemrnt of Agreerr- Construction. All chudahg reasonable attorney's fees incurred by MEMO in connection with the enforcemert of this references in this Agrearhent in the ' b-ted and obligations; Agreemd be, shall and st in iris teener int teener int ssvrrmm be Trustee s rig lar ashall nd be ocinsta deerrxdoo indude the plural where applicable and the masculine shall inchude all other Entire kit, expand, or otherwise construe die provisions or contents of Iris Agmem= and several convenants Headings of the paragraplyc of this Agreement am Agreement The AgrecmhS convenience fbr only money orders from time to ?S shall together with toe all attichments and ?' related security documents and such rules and regulations promu by respect shall money to the subject matter of tins Agrarn wu There um bgreem ? between the parties hereto. There are not other agreemen ts or as may be understanding; rilgated o MEMO for the issuance of shall bind and inure to the benefit of the patum, their respet?e heirs, nxxifications? repan 'ma'r' Wiens to Iris Agreement w or °?, Weerr the parties with Time of the --SOM, and proper assigtms unless agreed to in writing signed by all parties This Agreement Essence Tine is of the essemxt in this Agceerh>get aid the Rides UtNING - BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT _ DGMENT' MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNO TAI- YOU DO NOT PAY ON V REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR, AND THE POWER OF A COURT CAN BE USED S, COLLECT FROM RT TO COMMPLY-W9ITH AGREEMENT, OR ANY OTHER CAUSE R' WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAII.URE ON HIS e L _? c? FJ RCHANIS EXPRESS MONEY ORDER COMPANY/ TRUSTEE ?.?? Cotporate MO MONEY ORDER COMPANY/ / Name M NEY ORDER COMPANY OF NEW YORK, INC L Tnxxtxe Trustee (Individi* -j Trustee (Individual) 7nf' Trumsoee (Individ<ua? MERCHANTS EXPRESS MONEY ORDER COMPANY MEMO MONEY ORDER COMPANY PERSONAL MONEY ORDER TRUST AGREEMENT REMITTANCE BY ELECTRONIC FUNDS TRANSFER This Rider is an integral part of the Personal Money Order Trust Agreement being executed by the parties simultaneous herewith. Any changes to this Rider shall serve as an authorized addendum to the original Trust Agr 1 executed by both parties. Bement when properly TRUSTEE: -?-' Corporate/Business Name Street Address ?JO_ / 11-42 /Up fL? ,eo ? City State-? / Zip Code Telephone Number,3- 7-g4 - &fj 17? ? Fax Number Agent Number O Zq Legal Entity: X Corporation (a LLC ? Partnership Sole Proprietorship MONEY ORDER FEES: Money Order fees shall be based upon the average weekly volume of Orders sold by Trustee. Trustee's Money Order fee shall be $ y S per item at a maximum 75 retail selling price of Additionally, a money order dispenser fee of $ _ fees shall be included with Trustee's last if applicable) regular per week/month shall apply. Weekly money order lisp shall h included on the next ( weekly ACH draft. Monthly money order dispenser fees regular weekly ACH draft following the last calendar day of a particular month. The minimum monthly revenue generated by Trustee's account must equal $ between the - per month. The difference minimum monthly revenue and a combination of per item money order fees/money order dispenser fees will be calculated monthly, reported via debit transmittal notice approximately three weeks following the close of a calendar month, and will be drafted one week thereafter as part of Trustee's regular ACH draft. Money Order fees may be modified by MERCHANTS EXPRESS MONEY ORDER COMPANY d/b/a MEMO, or MEMO MONEY ORDER COMPANY, d/b/a MEMO, Pennsylvania Corporations, or MEMO ,MONEY RDER COMPANY OF NEW YORK, INC., d/b/a/ MEMO, a New York Corporation ` days notice to Trustee or when MEMO's ten week sales analysis indices per it m?weekly volume not con istent with MEMO's fee rate schedule. Y time Pry (30) PROCEDURE FOR SALE OF MONEY ORDERS: Trustee shall sell money orders strictly pursuant to the following procedures: A. Trustee shall sell only MEMO money orders in each retail establishment. Trustee shall ensure that the money orders are held secure at all times, and that such money orders along with the funds generated from such sales, will not be in jeopardy, nor seem in the opinion of a reasonable person, to be in jeopardy, and shall cease the issuance of mone orders and notify MEMO immediately, should such jeopardy arise. Y B. Trustee shall sell money orders in strict numerical sequence in accordance with the number printed on each blank money order. C. The face amount of any money order sold by Trustee shall not exceed the sum of $ D. Trustee shall not issue a money order until such time as Trustee has imprinted the applicable amount on the face of the money order, utilizing only the imprinter approved by MEMO and no other imprinter; collected from the purchaser the face amount of the money order and an additional amount determined by Trustee's retail fee; and removed and retained the accounting (store) copy of the money order. E. If the money order imprinter is not in proper operating condition or properly inked, Trustee shall immediately report such fact to MEMO's Help Line at 1-800-864-5246. y F. MEMO may deliver blank money orders to Trustee, or to any agent, whatever means MEMO deems appropriate, and MEMO is authorized to rreeceiveeand issue ra receipt for blank moneY orders on behalf of Trustee. y TERMINATION: Upon termination, cancellation, or breach of the Trust Agreement by Trustee, Trustee hereby demand notice by MEMO to forthwith return by next day US mail or common mail carrier all Trutoins one day's written possession, including but not limited to money order imprinting machines, all blank money order forms, the faces in applicable money order fees due _ ?rn a n its tan materials supplied to Trustee by MEMO O co ordance all Oth ?'$ MEMO, along with any other the Trust A eemaala c due ouer $r (h eunafter "Trust Property"). In the event that Trustee fails to return such items upon one day's written demand, Trustee hereby authorizes MEMO or it representatives or appointed designees to appear at Trustee's place of business and peaceably obtain custody of all such Trust Property listed herein. The costs of any repossession by MEMO shall be borne exclusively by the Trustee. TRUST FUNDS REMITTANCE: Any Trustee utilizing electronic money order dispensing equipment will be forwarded a weekly money order Summary Report, prior to the close of the sales reporting clay. The weekly money order Sales Summary Report will reflect money order sales for the applicable reporting period. Y r Sales SALES PERIOD: BGINNING DAY u A ENDING DAY REPORTING DAY (e "?y RE Trustee will be provided all pertinent reporting information on the weekly money order Sales Summ predetermined schedules, MEMO will initiate an electronic transfer of funds due MEMO, including thefa?e value por money orders sold, plus applicable fees due MEMO, from Trustee's bank account to MEMO's bank account. If Trustee's applimethocad ble of money ord remittance er is vfeesia frowire, Trustee will initiate a wire transfer of applicable money order sales Proceeds plus ount Trustee's money order Trust Account to the designated account prior to 2:00 PM on the designated with remittance when remittance da m am y. All funds due MEMO must be included due. All outstanding statement balances due at this time must be included with remittance MEMO bank deposit and/or credits due Trustee. If Trustee changes banks and/or bank accounts as identifi d in,the Truust$ee''s EtFIdae agreement, Trustee shall immediately inform MEMO of such change by telephone and promptly confirm in writing. ens, shall not be revoked unless all funds due MEMO are paid in full. If Trustee did not sell any money orders during the Sales Period, Trustee must still remit payment for outstanding balances as notified b This arrangement be voided through the electronic money order dispenser during the sale date only to avoid char$ accoges) to Trutee'oaccount. must Ifa voided money order is not voided in the money order dispenser, Trustee shall write, "NOT USED FOR PURPOSE INTENDED" on the backside of the original money order and deposit the money order into Trustee's bank account. If. should write "void" on the face of the original money order, Trustee shall forward the o money r ll to the MEMO office and MEMO will issue a refund to Trustee in the form of a replacement money order voided Trustee shall ensure that the electronic money order dispenser is available for MEMO to electronically transmit ollin data basis. If the electronic money order dispenser does not poll consistently, Trustee must provide p $ on a daily with order sales date manually as requested. Trustee ensures that the electric money order sales dispenser is always turned on and always promptly connected to a clear telephone line during electronic polling transmission time. MEMO the money WEEKL? ACCOUNTING AND REMITTANCE: On /ft(12??talfromdail?y and money order sales t of each week, MEMO will calculate a weekly dispenser. data obtained from Trustee via electronic polling transmission of the money order MEMO will forward the weekly Money Order Sales S reconcile the weekly Money Order Sales Summ ummarY Report to Trustee as stated above. Trustee shall must retain the accounting (store) copies at its to ation foa peeriod ofdthreeed months from the reporting Reportth recors an inform MEMO of any differences. Trustee shall forward the accounting (store) copies to the MEMO office upon request. If the accounting (stop opies Trustee p are not requested during the three month retention period, Trustee shall discard the accounting (store) copies at its own discretion. TRUSTEE MERCHANTS EXPRESS MONEY ORDER CO. MEMO MONEY ORDER COMPANY. Signatur J Title Date' ?s- 03 ELECTRONIC J---y 30.2003 ck a ) ) . MERCHANTS EXPRESS MO MEMO MONEY ORDER COO?MPANYOMPY PERSONAL INDEMNITY AND GUARANTY Intending to be legally bound hereby, MEMO MONEY ORD and in order to in MERCHANTS EXPRESS MONEY ORDER NEW YO ER COMPANY, d/b/a/ MEMO, Pennsylvania Co orations or ER COMPANY, d b a YORK, INC, a New York Corporation, or ansubsidiary ORDER y d/b/a/ MEMO ("MEMO' COMPANY OF dments or changes thereto as may be in effect from time to to sign that certain Personal eMoney ,) w time (collectively the "Agree1hherht' Order Corporate/Business Name ith: Street Address 10_?/O 0/ Ciry /?/? and in consideration of its so doing, State SC Zip Code 5?, become surety for Trustee's the Undersigned, jointly and severally, absolutely and unconditionallfull performance of the Agreement, including without limitation the P unctullamounts becoming due from Trustee to MEMO thereunder, and shall indemnfy i and hold MEMO h Y guarantee and and y all ment of all loss expense (including attorney's fees) and/or liability sustained by it by reason of or related to Trustee s°arfamlil tess and agaipnst nPunctany ual payment damage, The Agreement may be modified by MEMO and Trustee without notice to the unders ure to perform the Agreement. may enforce this Guaranty against the MO an undersigned in Court of igro of and without affecting this Guaranjurisdiction of said Court the Undersigned consents), as well ea as any other court and state Navin ry' MEMO ever taken by (to MEMO against Trustee. g jurisdiction, whether or not any action is The Undersigned hereby waive all notices whatsoever with respect to this GuaranUndersigned. The Undersigned hereby consent to the taken t5' except for notice of demand for payment from the Undersigned, any action of any nature whatsoever with respect ?o tof, or the he Agreements including take, from rom not limited to any renewals, extensions, modifications, time to time without notice isions, the postponements, compromises, indulgences, waivers, surrenders exchanges, releases, and failure to against any person, and the Undersigned shall remain fully liable hereon notwithstanding any of the foregoing. Except as p rights the Undersigned hereby waive all defenses whatsoever the Undersigned's liability pursue provided reserve herein, lack of notice as re quired in the Agreement. hereunnd der except the defenses of 1) pa ( payment, and (2) Upon default hereunder, the Undersigned hereby authorizes and empowers irrevocably the Prothonotary attorney of any court of record of Pennsylvania or elsewhere to appear for and to confess hereunder, plus all costs of suit, legal or any Clerk for any mounts e execution, and authorizing ll t' interest to date, and a judgment against the Undersigned for all t1e > thirty .percent (30 /o) added for attorney's fees, releasing errors, waiving tray of For such immediate issue of a writ of execution, all in accordance with the Pennsylvania Rules of Civil procedure. purpose, this Guaranty or a copy hereof verified b affidavit b Prothonotary, Clerk or attorney, shall be sufficient by by the Undersigned or on behalf against the Undersigned shall not be exhausted by the warrant. The curial exercise the eof; the same may be exercised from of the Undersigned by authority said shall deem necessary and desirable, and this Guaranty MEMO by authorizing MEMO e confess d tY shall be a sufficient warrant therefor. The Undersitime to time, as often determine their rights and liabili es• gment hereunder, the Undersigned have waived the right to notice in a gned acknowle dge that by prior judicial proceeding to This Guaranty is given in connection with h commercial transaction. This Guaranty, is i andaevble idand shall be bindin n of the Undersigned to make sums owed to it under the Agreement and that ma g and operative until such payment in connection with a accordance with the laws the the Commonwealth of may nns po suant to this Guarantime as MEMO shall have been paid all ty. This Guaranty shall be governed by and construed in Y tea, disregarding any rules relating to the choice or conflict of laws. WARNING - BY SIGNING THIS PAPER, YOU GIVE Up YOUR RIGHT TO NOTICE AND COURT PAY ON TIME, A COURT JUDGMENT TRIM,. IF YOU DO NOT THE POWER OF A COURT MAY BE TAKEN AGAINST YOU WI'T'HOUT YOUR PRIOR KNOWLEDGE THE CA UUSED TO COLLECT FROM YO RE AND ST ; ED HE GREE R FOR RETURNED GOO LESS O CLAIMS YOU MAY HAVE ' O ANY OTHER CAUSE. F 're, O IGu LY TWITH? S, ON HIS PART TO A tor 's Signature n ?- is Signature -? Print Guarantor's t print Ouse' N ri o e.Af ess -- ; d ess city St2re Zip Code Date Z -- to Zip Cole Date *If not married, please indicate by affixing "N/A" on line for second Guarantor's signature. xo?mb? ?, zooz VERIFICATION The undersigned Food Merchants individual hereby states that he/she is an employee of the Penns Iv y ama Association with the authority to verify the statements contained in foregoing complaint involving its wholly owned subsidiary, the order Company. The undersigned individual also states that he stem nts Express made in Money aforementioned complaint are true and correct to the best of his/her knowled a info the tion, and belief. The undersigned understands that the statements therein are subject tt o the penalties of 18 Pa. Cons. Stat. §4904 relating to unworn falsi made fications to authorities. Dan Oliva Merchants Express Money Order Company, Inc. PLAINTIFF V. Juanita. D. Tobin Individually, jointly and severally, ANT and Frank A. Tobin Individually, jointly and severally, DEFENDANT and Tobin Convenience, Inc. Corporation DEFENDANT COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS: The undersigned being duly sworn according to law, deposes and states t employee of the Pennsylvania Food Merchants Association with the authori ? to hat he is an Affidavit on behalf of the Plaintiff, Merchants Express Money Order Company, make this subsidiary of the Pennsylvania Food Merchants Association. The undersigned a wholly owned address of the Plaintiff is: 1029 Mumma Road, Wormle sbur p that the addresses of the Defendants are as follows: y ?nsYlvani170?43 and states that the Tobin Convenince, Inc. 7501 Two Notch Road Columbia, SC 29229 SWORN to and subscribed before me this day of ?u_ ?u _ 2009. N lic COMMONWEALTH OF PENNSYLVANIA Notarial Seal Jennifer R. Hamelin. Notary Public Wornrieysburg Boro. Cumberland County My Commission Facpires July 12, 2012 Member, Pennsybarria Association of Notaries COURT OF COMMON PLEAS, CUMBERLAND COUNTY 2009 No. AFFIDAVIT OF ADDRESSES Juanita D. Tobin 308 Firebrick Lane Frank A. Tobin Columbia, SC 29 308 Firebrick Lane 9223 Dan Oliva Merchants Express Money Order Company, Inc. PLAINTIFF V. Juanita D. Tobin Individually, jointly and severally, DEFENDANT and Frank A. Tobin Individually, jointly and severally, DEFENDANT and Tobin Convenience, Inc. Corporation DEFENDANT COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS: The undersigned being duly sworn according to law, deposes and states that he is an employee of the Pennsylvania Food Merchants Affidavit on behalf of the plaintiff Association with the authority to , MerchantsExpress make this subsidiary of the Pennsylvania Food Merchants Associati Money on. order Company ' a wholly owned the best of my knowledge, on inforlnatio , and belief, the g also states that to are Naval Service of the United States or its Allies, or o herwisDefendants iln the not Provisions the Military ilitary Soldiers' and Sailors' Civil Relief Act of Congress of 1940 as athi.1 or M of the Dan Oliva SWORN to and sI scribed before me this day of 11 _2009. N lic COMMONWEALTH OF PENNSYLVANIA Notered Seal Jennifer R. Hamelin, Notary Public Wormleysburg Boro, Cumberland County My Commission Expires July 12, 2012 COURT OF COMMON PLEAS, CUMBERLAND COUNTY : 2009 No. AFFIDAVIT OF NON-MMITARV SERVICE Member, Pennsylvania Association o1 Notaries 04 ?Sh ?? ? a?? 9as Merchants Express Money Order Company, Inc. PLAINTIFF COURT OF COMMON PLEAS, CUMBERLAND COUNTY V. Juanita D. Tobin Civil Term, 2009 Individually, jointly and severally, DEFENDANT and No. 09-4661 Frank A. Tobin Individually, jointly and severally, DEFENDANT and Tobin Convenience, Inc. Corporation DEFENDANT ORDER TO MARK JUDGMENT SATISFIED To the Prothonotary: r un Kindly mark the above-captioned matter satisfied of record upon payment of your costs only. I ? - ??. Kevin M. uktins, Esq. Attorney for Plaintiff Attorney ID: 76859 Merchants Express Money Order Company 1029 Mumma Road P.O. Box 8863 Camp Hill, PA 17001-8863 (800) 543-8207 CERTIFICATE OF SERVICE I, Kevin M. Lutkins, Esquire, hereby certify that on this 4th day of January, 2011, I served a true and correct copy of the foregoing Order to Mark Judgment Satisfied upon the following individuals and parties of record via First Class Mail, postage prepaid. Tobin Convenince, Inc. 7501 Two Notch Road Columbia, SC 29229 Juanita D. Tobin 308 Firebrick Lane Columbia, SC 29223 Frank A. Tobin 308 Firebrick Lane Columbia, SC 29223 Kevin M. u ns, Esq. Attorney for Merchants Express Money Order Company 1029 Mumma Road P.O. Box 8863 Camp Hill, PA 17001-8863 717-760-5903