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HomeMy WebLinkAbout09-4663MEMO Money Order Company, Inc. PLAINTIFF V. Dasharath J. Patel Individually, jointly and severally, DEFENDANT and Puspa D. Patel Individually, jointly and severally, DEFENDANT COURT OF COMMON PLEAS, CUMBERLAND COUNTY 2009 eZ3 No. pQ - Q ?t v?l r ` and Banta, Inc. d/b/a Duey's Stop & Shop 2 Corporation : DEFENDANT 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: $23,072.68 $ 576.82 $ 0.00 $ 7,094.85 To be determined $30,744.35 Kevin . Lutkins, Esq. Attorney for Defendants MEMO Money Order Company, Inc. COURT OF COMMON PLEAS, PLAINTIFF CUMBERLAND COUNTY V. : Dasharath J. Patel , 2009 Individually, jointly and severally, DEFENDANT and No. Puspa D. Patel Individually, jointly and severally, DEFENDANT and Banita, Inc. d/b/a Duey's Stop & Shop 2 Corporation DEFENDANT NOTICE NOTICE IS GIVEN THAT A JUDGMENT IN THE ABOVE-CAPTIONED MATTER HAS BEEN ENTERED AGAINST YOU. PP1OTHON09T4ff 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 MEMO Money Order Company, Inc. COURT OF COMMON PLEAS, PLAINTIFF CUMBERLAND COUNTY V. Dasharath J. Patel , 2009 Individually, jointly and severally, DEFENDANT and No. Puspa D. Patel Individually, jointly and severally, DEFENDANT and Banita, Inc. d/b/a Duey's Stop & Shop 2 Corporation DEFENDANT COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY COUNT I - CONFESSION OF JUDGEMENT Plaintiff is MEMO Money Order Company, Inc. (hereinafter "MEMO"), a Pennsylvania corporation wholly owned by Merchants Express Money Order Company, Inc., that engages in the issuance and sale of money orders and whose address is 1029 Mumma Road, Wormleysburg, Pennsylvania, 17043. 2. Defendant Banita, Inc., (hereinafter "Banta"), is a corporation located at 101 S, Main Street, Wingate, North Carolina and doing business as Duey's Stop & Shop 2. 3. Defendant Dasharath J. Patel (hereinafter "D. Patel"), is an individual residing at 413 Maye Street, Wingate, North Carolina, 28174 4. Defendant Puspa D. Patel (hereinafter "P. Patel"), is an individual residing at 413 Maye Street, Wingate, North Carolina, 28174. 5. Defendants D. Patel and P. Patel are the owners and/or operators of Defendant Banita, and entered into a Personal Money Order Trust Agreement ("Trust Agreement") on behalf of Defendant Banita and themselves on or about May 14, 2003. A true and correct copy of the Trust Agreement under which Defendants D. Patel, P. Patel and Banita are confessing judgment is attached hereto as Exhibit "A". 6. Defendants D. Patel and P. Patel, with the intent to induce MEMO to enter into a Trust Agreement with Defendant Banita, entered into the Personal Indemnity and Guaranty on or about May 13, 2003. A true and correct copy of the Personal Indemnity and Guaranty under which Defendants D. Patel and P. Patel 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 D. Patel, P. Patel, and Banita, 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 $30,744.35 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 June 19, 2003 until May 28, 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 $13,892.48 in Trust Funds from Defendants on May 21, 2009, and $9,180.20 in Trust Funds on May 14, 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 May 14, 2009 or May 21, 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: $23,072.68 Interest: $ 576.82 Lost Fee Income: $ 0.00 Attorney Fees: $ 7,094.85 Costs: To be determined Total: $30,744.35 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. WHEREFORE, Plaintiff demands judgment in the amount of $30,744.35, 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 D. Patel and P. Patel signed the aforementioned Trust Agreement on behalf of themselves and Defendant Banita. 24. Defendants D. Patel and P. Patel signed the aforementioned Personal Indemnity and Guaranty thereby making themselves personally liable for any default by Defendant Banita 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 $30,744.35, 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 $30,744.35, 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. The averments contained in paragraphs 1 through 30 are incorporated herein by 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. WHEREFORE, Plaintiff demands judgment in the amount of $30,744.35, 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 other property properly belonging to the Plaintiff. WHEREFORE, Plaintiff demands judgment in the amount of $30,744.35, 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 $30,744.35, 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 utkins, Esq. Attorney for Plaintiff Attorney ID: 76859 ?` 11 MERCHAN'T'S EXPRESS MONEY ORDER COMPANY/MEMO MONEY ORDER COMPANY PERSONAL MONEY ORDER TRUST AGREEMENT THIS AGREEMENT is made between MERCHANTS EXPRESS MONEY ORDER COMPANY, d/b/a MEMO, MEMO MONEY ORDER COMPANY, d/b/a MEMO, Perimylvania Corporations or MEMO MONEY ORDER COMPANY OF NEW YORK INC., d/b/a MEMO, a New York Corporation, or any subsidiary d/b/a/ MEMO (MEM(Y) and the individual(s) and/or entities identified below, hereafter referred to as Triistee(s). In consideration of the mutual promises contained in this agreement and intending to be legally bound hereby, the pubes agree as follows: 1. Agency. MEMO appoints Trustee to act as a special agent of MEMO at each of Trustee's retail establishments approved for the sale of money orders issued by MEMO. Trustee accepts such appointment in accordance with the terns and conditions specified in this Agreement and in the attached Rider herein incorporated and made a part hereof. 2 Trust Relawwhip. Trustee shall receive and hold in trust for MEMO all blank money orders delivered to Trustee by MEMO aril all money received by Trustee from the sale of money orders, including without limitation the money order fees established by MEMO from tine to time ("trust fimds'?. Trustee shall hold the trust funds separate and apart fmsn other funds of Trustee 3. Money Order Fees. In consideration of the services rendered to Trustee by MEMO, Trustee shall pay MEMO a fee ("Money Order Fees') specified in the attached rider. Money Order Fees may be modified by MEMO at any time upon thirty (A days prior notice to Trustee 4. Materials 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 consisting of two or three parts: The fist part being the money order instrument itself (stub/purchaser's receipt with two part); the second part being the accounting (store) copy, and the third part being the purdmsets copy with a three part foam B. An agency installation folder containing adequate supplies of money order reporting fours, mailing labels, lost money order claim cards, stop payment fobs and various other foams necessary for the continuous and on-going operation of a money order program. Furthermore, Trustee agrees to comply with all Federal and State regulations governing currency transaction reports and for record keeping. C. A money order imprinter of the quality necessary to irnpunt the money order dollar value firmly into the money order so as to inhibit the alteration of any item Money order im>printers shall be of two different types consisting of both electronic money order disperses and manual money order irnimnters. At MEMCes sole discretion, either type of dispenser skean be ia?ued to agent Manual money order dispenses shall contain an identifying plate, which shall read 'MEMO" followed by the Trustee I.D. number Electronic money order disperses shall be programmed by MEMO to indicate Trustee I.D. rnunber on imprinted money order. Such money order imprinter shall at all times continue to be the sole property of MEMO and shall not be removed from the Trustee's retail establishment where it was origin* installed by MEMO. Any other money order disposes not owned by MEMO and used by Trustee to imprint money orders must be approved by MEMO. D. Such advertising material as MEMO in its sole discretion shall determine 5. Right to an Accounting. Notwithstanding any other provision of this Agreement MEMO shall have the right, at all reasonable times, with or without notice, to access Trustees premises and to inspect and perform an accounting of or cause its employees or agents to impel and perform an accounting of the cash receipts, Money Order Fees, the accounting (store) copies of rrxxxT orders sold and the Tnstee's inventory of u nmied money order. A charge will be assessed against Tnstee to recover exposes incurred by MEMO when an audit is made due to Trustre's breach of this Agreement or if the audit discloses a breach (See audit fee/penalty fee schedule). 6. Rules and Regulations. Trustee shall comply with the following rules and regulations: A. No money order shall be issued or sold to anyone in payment of any obligation of Tnstee or used in any manner for Trustee's own purposes. B. Only rash shall be accepted as payment for money orders issued or sold No check or other paper transmitted or deposited by Trustee to or for MEMO shall constitute a remittance to MEMO until actually collected, MEMO to have the option in each ease as to whether to deposit any such paper for collection. G Trustee shall safeguard all unissued money orders and the money order irhfmnter with the highest degree of care The care excised in regard to money orders shall be at least as that applicable to cash. Trustee shall repot to MEMO the serial number of each money order stolen or missing, and all other information relating to the event immediately upon discovery of the fact but in any event not later than twenty-four A hours prior to the money orders being presorted for payment to MEMO so that payment can be stopped on such missing or stolen money orders. Such report shall be by telephone and immediately contianed in writing Trustee shall be solely responsible for an losses arising from, and shall inderurify MEMO and hold harmless regarding any and all stolen or missing money orders as well as any money order imprintes issued to Trusstee Ftudhemm ore, Tnistee shall be responsible for repair or replacement of any issued money order dispensers stolen or damaged as a result of misuse, negkgence, abuse, fire or otherwise Said responsibility and liability of Trustee shall not be limited by Tnstee's compliance with the safeguarding, care, and reporting obligations set forth in this paragraph a Trustee shall at all times mamtain a sound. financial position and provide current financial information to MEMO as requested by MEMO. Trustee shall conduct operations so that the funds generated Crum the sale of money odes will not be in jeopardy nor seem in the opinion of a reasonable person to be in jeopardy and shall ruse the issuance of money orders and notify MEMO immediately, should such jeopardy arse Notification to MEMO shall be made promptly by telephone and immediately confirmed in writing 'Sand Financial Conditicd' shall mean that these has been no material adverse change in the business, operations, condition (financial or otherwise) or prospects of tine Tnstee and that neither Tnnstee or any Guarantor has become insolvent generally unable to pay its debts as they become due, involuntarily suspended transaction of its business, made a general assignment for the benefit of creditors, instituted a proceeding described in Paragraph 7B or consented to any such order for relief declaration, finding or relief described therein, institute a proceeding described in paragraph 7B or consented to any such appointment or to the taking of possession by any such official or all or any substantial part of its property, whether or not any such proceeding is instituted, or has taken any action ih fumherance of any of the foregoing. A lack of sound financial condition shall also include when Tnstee fails to pay, on the date which the same is due, any sum payable hereunder or fails to pay its creditors generally or makes representations to MEMO or to other creditors that it must delay any such payment under conditions which, in the sole discretion of MEMO, it appears that Trustee is no longer in a sound financial condition. E. Trustee shall provide MEMO by facsimile transmittal or registered mail three (3) weeks advance notice of proposed change(s) in the ownership of eitherTrustee's business, the management of Trustee's business, the sale of fifty-one percent (51%) or more of Trustee's assets, or the entry into or termination of business affiliated with Trustee. Transactions included within this paragraph G(E) include transfer of stock of Trustee, sale of partnership, interests, limited liability company or partnership's interest or any similar transaction which effects a change in ownership or control of Trustee. No such transaction shall be approved until any successor entity, if any, has entered into appropriate documentation, including a taut agreement. No transaction, discussed in this subparagraph, shall be effective without the prior written approval of MEMO. Any attempt by Trustee to effect such a transaction with MEMO approval shall be void, ab innitio as to MEMO. If Trustee fails to give such notification, Trustee, as well as its successor, shall remain liable for the payment of all sums and the performance of all duties required by the Agreement Any change of ownership or otherassignment within the meaning of this paragraph shall bind Trustee's successor or assignee to the terms and conditions of this Agreement. F. At Trustee's retail establishment where money orders are solo Trustee shall sell only MEMO money orders G. Trustee shall sell MEMO money orders only at Trustee's specifically approved places of business or future place of business as approved by MEMO. H Trustee shall remain open during the cause of normal business hours for the duration of this agreement Failure to do so shall constitute a breach of this agreernesnt Term of Agnecime m The tern of this Agreement shall inn for a period of three (3) yeas from the date of this Agreement and shall renew automnadcAy for successive three (3) year periods. After the initial tree-year bean of this Agreement, Trustee may [emirate this Agreement upon six (6h mronnths prior written notice to MEMO, and MEMO may numrinate ens Agreement upon sorry (60) days prior written notice to Tnstee. In the event Trustee does not provide proper terxnnation notice, Trustee shall be responsible for lost fee income to MEMO for the duration of the contract in effect Fee income shall be calculated using Trustees most recent 10Lweek sales average Notwithstanding the foregoing MEMO may ternmi to this Agreement at any time, inurediately and without notice, and/or enter judgment according to the provisions of Paragraph 11 hereof upon the happening of arty of the following events MEMO or its designated check-clearing banking center does not receive the accounting documentation or payment of trust finds (including money order sales proceeds and money order fees), within the time period and on the teams specified in the Rider to this Agreement * Tnstee or any Guarantor commits any act of insolvency, or upon the filing by Trustee or any Guarantor of any Mention under any bankruptcy, reorganization, insolvency, or moratorium law, or any law for the relief or, or relating to debtors; or the filling of any involuntary petition against Trustee under any bankruptcy statute, or the appointment of a receiver or trustee to take pion of the property or assets of Trustee; or the subjection of any Tnstee's property or assets to any levy, seizure, assignment or sale for or by any creditor or governmental agency. C. The non-pecfornnance by Trustee of any obligations of Trustee pursuant ro this Agreement The happening of any of the foregoing events shall be a default under this Agreement and, without any notice from MEMO, constitute a default under any and all agreernents of Trustee and/or Trustee's guarantor(s) with Consumer Payment Services, or any other related company. Termination. Upon the expiration or termination of this Agreement, Trustee immediately shall deliver to MEMO all cash receipts from the sale of money orders, money order fees due MEMO, accounting (store) copies of money orders issued, the money order imprinter and any and all materials or documents provided to Trustee by MEMO pursuant to this Agreement; induding, but not lin ited. to, all blank money order forms AD obligation, covenants, liabilities and indemnities of Trustee hereunder shall survive the expiration or tennination of this Agreement A texmimmon notice provided by MEMO for any reason other than the expiration of this Agreement shall be effective as of the happening of any such event causing wirni ration under paragraph 7 hereof or upon the entry of confessed judgment, whichever fist occurs. Confession of Judgment Trustee hereby irrevocably authorizes and empowers any attorney or the Prothonotary or Clerk of any court of record, upon or after the occurrence of any event described m paragraph 7, to appear for and to confess or enter judgment against Trustee for the face amount of all money orders sold pursuant to this Agreement, the applicable Money Order Fees, accrued interest thereon, interest expense not to exceed eighteen percent (1816), and for any other sums dire MEMO under this Agreement, together with expenses and cost of suit and reasonable attorney's fees and said fees not to exceed thirty percent (W16) of said amount and scans, for collection as provided herein including all legal fees incurred in any Bankruptcy of Trustee For such purpose, this Agreement or a copy hereof verified by affidavit by Trustee or on behalf of Trustee by said attorney, Prothonotary or Clerk, shall be sufficient warrant The remedies of MEMO as provided herein and the warrants obtained heem shall be enforced in accordance with the terms of this Agreement and may be pursued singly, successively, or together at the sole discretion of MEMO and as often as occasion therefore shall occur. The Paulmre to exercise any such right or remedy shad in no event be construed as a waiver or release thereof The authority and power to appear for and confess or enter judgment against Trustee shall not be exhausted by die initial exercise dhaeof, and the same may be exercised, fiom tune to time, as often as MEMO shall deem necessary and desirable, and this Agreement or a copy hereof shall be a sufficient Warrant therefore. One or more judgments may be confessed or entered in the same or different counties for all or part of the sums described in this paragraph In the event any judgment entered against Trustee hereunder is stricken or opened upon application by or on Trustees behalf for any reason whatsoever, then any attorney or the Prothonotary or Clerk of any court of record is hereby authorized and empowered to again appear for and confess or enter judgment against Trustee; subject, however, to the limitation that such subsequent entry or confession of judgment may only be done to cure any errors in prior proceedings, and only and to the extent that such errors are subject to cure in the late proceedings. lo. Liability. Tnutee, regardless of Trustees freedom from negligence or other fault, shall be absolutely liable: P To make rcurrittance to MEMO of the face amrwnt of all money orders soli, the applicable Money Order Fees, and all other monies due MEMO under this Agreentertt; regardless of the mysterious or non-mysterious disappearance or loss of any funds from Trustee's possession by reason of the honest or dishonest act of any person, act of God, or otherwise B. To remit to MEMO the total amount of all stuns of money that may be expended by or for MEMO in paying any money orders delivered by MEMO to Trustee that are subsequently presented for payrnent, whether or not MEMO is legally liable to pay the same This subparagraph shall not apply to any money order as to which Trustee shall have fully performed Trustee's duties sunder this Agreernet 11. Indemnity. Trustee shall indemnify, defend and hold harmless MEMO from and against any and all losses, damages, liabilities, claims, actions, suits, proceedings, judgments, assessments, fines, penalties, costs, interest, and expenses (including, but not limited to, settlement cost and reasonable legal and accounting fees) sustained by MEMO resulting from or arising out of any act or ornission to act, whether honest, dishonest; negligent or otherwise by Trustee or Trustee's employees, agents, associates or representatives (whether within or without their scope of peffounance). 12 Security. As fintner consideration of appoartment by MEMO as its agent, and in order to protect MEMO s property from conversion; Trustee hereby grants to MEMO a continuing security interest in Trustee's bank account, inventory accounts receivable, assignment of lease, and fixtures at all Trustee locations. Tnnstee agrees to execute all doczunecnts necessary to Create or perfect such security interest, including, but not limited to, recorded Uniform Cortunemaal CodeFinancial Statement (UCC1(s)) fillings. Furthermore, MEMO reserves the right to require additional collateral as it deems necessary for ongoing approval and for the duration of the Agreement In the evert Trustee changes ownes4 in Trustee's business in any transaction similar to those set forth in paragraph 6(E) hereof without prior notice and approval by MEMO as set forth therein, Trustee hereby giants a security interest in the proceeds of any such transaction until such time as an approved trust account is re-established 13. Notices. Except as otherwise stated, all notices, correspondence, and communications under this Agreement shall be in writing and addressed as follows: IF TO MEMO: MEMO IF TO TRUSTEE See anadned Ride P.O. Box 8863 Cam Hill, PA 170014WO 14. Choice of Law. This agreement shall be construed under and in accordance with the laws of the Comaximealth of Pennsylvania, disregarding any rules; relating to the choice or conflict of laws The parties consent to venue and personal jurisdiction in Cumberland County, Pennsylvania, or, in the case of MEMO s exercise of rights under Paragraph 11 hereof in any other court of record in Pennsylvania or elsewhere. 15. Non-Waiver. The falure of MEMO to enforce any provision of this Agreement or its failure to declare a default under this Agreement shall not constitute a waiver or any breach or of any provision of this Agreement and shall not prejudice the right and/or power of MEMO to proceed as tinily as if it had not failed to enforce any provision of this Agreement 16. Enforcement In the event of default under the terns of this Agreement; Trustee agrees that MEMO shall, in addition to all rights it night have under the law, have the right of seeking specified performance in the court of equity. Furthermore, Trustee agrees to consent to the jurisdiction of a court of equity regarding the enforcement of this Agreement and/or the enforcement of MEMO(s) rights in the event of any default by Trustees. 17. Cost of Enforcement Trustee shall pay, on demand by MEMO, all costs and expenses including reasonable attorney's fees inured by MEMO in connection with the enforcement of this Agreement. Construction. All references in this Agreement in the singular shall be construed to include the plural where applicable and the masculine shall include all other genders. All covenants, agmeeneNs and obligations in this Agreement assumed by Tnnstee shall be, and shall be deemed to be, joint and several coveenants. Headings of the paragraphs of this Agreement axe for convenience only and do not lirnit, expand, or otherwise construe the provisions or contents of this Agreement 19. Entire Agreement This Ageerneht, together with all attachments and rides, related security documents and such ntles and regulations as may be promulgated by MEMO for the ;mince of money orders from time to tin, shall constitute the entire agreement between the parties hereto. There are not other agreements or understandings, written or oral, between the parties with respect to the subject matter of this Agreement There shall be no nwdifimtiom, amendments, or alterations to this Agreemet unless agreed to in writing, signed by all parties. This Agreement shall bind and irate to the bereft of the parties, their respective hems, successors, representatives and proper assigns. 20. Time of the Essence. Time is of the essence in this Ageermemt and tie Rider. WARNING - BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE, AND THE POWER OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR, WHEn-IER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO CCOMPLY WITH AGREEMENT, OR ANY OTHER CAUSE. Date ?' /4'`l7?? - TRUSTEE MERCHANTS EXPRESS MONEY ORDER COMPANY/ CoqDorate/Sirore Name " ?C' MEMO MONEY ORDER COMPANY/ MEM ORDER COMPANY OF NEW YORK, INC Signawxu?/ /4'\ J /.. !J `T 1? J !"Titl6? j j f t/L a-? Trustee (Individual) s`t ?7 C sc »?-C? a By G`je° G7l[l s T - Txustee (Individual) tti? ? ?Ls J N?„?7,2= Trustee (Individual) MERCHANTS EXPRESS MONEY ORDER COMPANY I v S? 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 simultaneously herewith. Any changes to this Rider shall serve as an authorized addendum to the original Trust Agreement when properly executed by both parties. TRUSTEE: Corporate/Business Name A1/y/-- ; /??-- Street Address City I?i???CAI? State A&Zip Code 7`f Telephone Number '20(m.233 ' T sag Number Agent Number Legal Entity: Corporation [ LLC Partnership ( Sole Proprietorship MONEY ORDER FEES: Money Order fees shall be based upon the aver 7e weekly volume of U Money Orders sold by Trustee. Trustee's Money Order fee shall be $_ F, per item at a maximum retail selling price of $ Additionally, a money order dispenser fee of $ -'- per week/month shall apply. Weekly money order dispenser fees shall be included with Trustee's last (if applicable) regular weekly ACH draft. Monthly money order dispenser fees shall be included on the next regular weekly ACH draft following the last calendar day of a particular month. The minimum monthly revenue generated by Trustee's account must equal $ per month. The difference between the 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 ORDER COMPANY OF NEW YORK, INC., d/b/a/ MEMO, a New York Corporation ("MEMO' at any time upon thirty (30), days notice to Trustee or when MEMO's ten week sales analysis indicates per item weekly volume not consistent with MEMO's fee rate schedule. 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 money orders and notify MEMO immediately, should such jeopardy arise. B. Trustee shall sell money orders in strict numerical sequence in accordance with the number printed on each blank money order. av C. The face amount of any money order sold by Trustee shall not exceed the sum of $_ -soy 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. F. MEMO may deliver blank money orders to Trustee, or to any agent, employee or representative of Trustee, by whatever means MEMO deems appropriate, and MEMO is authorized to receive and issue a receipt for blank money orders on behalf of Trustee. TERMINATION: Upon termination, cancellation, or breach of the Trust Agreement by Trustee, Trustee hereby agrees to one day's written demand notice by MEMO to forthwith return by next day US mail or common mail carrier all Trust instruments in its possession, including but not limited to money order imprinting machines, all blank money order forms, the face amount and applicable money order fees due MEMO to date, and all other outstanding balances due MEMO, along with any other materials supplied to Trustee by MEMO in accordance with the Trust Agreement (hereinafter "Trust Property"). In the event that Trustee fails to return such items upon one day's written demand, Trustee hereby authorizes MEMO or its 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 Sales Summary Report, prior to the close of the sales reporting day. The weekly money order Sales Summary Report will reflect money order sales for the applicable reporting period. SALES PERIOD: BEGINNING DAY D ? ENDING DAY REPORTING DAY <"LF;1- `, ARE l?FS1Si4 ?/ Trustee will be provided all pertinent reporting information on the weekly money order Sales Summary Report. As per predetermined schedules, MEMO will initiate an electronic transfer of funds due MEMO, including the face value of money orders sold, plus applicable fees due MEMO, from Trustee's bank account to MEMO's bank account. If Trustee's method of remittance is via wire, Trustee will initiate a wire transfer of applicable money order sales proceeds plus applicable money order fees from amount Trustee's money order Trust Account to the designated MEMO bank deposit account prior to 2:00 PM on the designated remittance day. All funds due MEMO must be included with remittance when due. All outstanding statement balances due at this time must be included with remittance, including debits due MEMO and/or credits due Trustee. If Trustee changes banks and/or bank accounts as identified in the Trustee's EFT agreement, Trustee shall immediately inform MEMO of such change by telephone and promptly confirm in writing. This arrangement 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 by MEMO. All voided money orders must be voided through the electronic money order dispenser during the sale date only to avoid charges to Trustee's account. If a 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 . Trustee should write "void" on the face of the original money order, Trustee shall forward the original voided money order to the MEMO office and MEMO will issue a refund to Trustee in the form of a replacement money order. Trustee shall ensure that the electronic money order dispenser is available for MEMO to electronically transmit polling data on a daily basis. If the electronic money order dispenser does not poll consistently, Trustee must provide MEMO with the money 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 times. WEEKLY ACCOUNTING AND REMITTANCE: On Q Vv i j and of each week, MEMO will calculate a weekly money order sales otal from daily data obtained from Trustee via electronic polling transmission of the money order dispenser. MEMO will forward the weekly Money Order Sales Summary Report to Trustee as stated above. Trustee shall reconcile the weekly Money Order Sales Summary Report with its records and inform MEMO of any differences. Trustee must retain the accounting (store) copies at its location for a period of three months from the reporting period. Trustee shall forward the accounting (store) copies to the MEMO office upon request. If the accounting (store) copies are not requested during the three month retention period, Trustee shall discard the accounting (store) copies at its own discretion. TRUSTEE Corporate/Store Name g,4&) Signature ? C^?%[.lrJ ' Title -?- Date -13 Z-13 MERCHANTS EXPRESS MONEY ORDER CO MEMO MONEY ORDER COMPANY. Signature' vy Title rze4 Date (y ELECTRONIC J-uuy 30, 2003 (N MERCHANTS EXPRESS MONEY ORDER COMPANY MEMO MONEY ORDER COMPANY PERSONAL INDEMNITY AND GUARANTY Intending to be legally bound hereby, and in order to induce MERCHANTS EXPRESS MONEY ORDER COMPANY, d/b/a/ MEMO, MEMO MONEY ORDER COMPANY, d/b/a/ MEMO, Pennsylvania Corporations, or MEMO MONEY ORDER COMPANY OF NEW YORK, INC, a New York Corporation, or any subsidiary d/b/a/ MEMO ("MEMO'S to sign that certain Personal Money Order Trust Agreement, Rider and amendments or changes thereto as may be in effect from time to time (collectively the "Agreement's with: Corporate/Business Name Street Address Aw S. /N J / - City ?,L/1•???? State ` Zip Code E l and in consideration of its so doing, the Undersigned, jointly and severally, absolutely and unconditionally, personally guarantee and become surety for Trustee's full performance of the Agreement, including without limitation the prompt and punctual payment of all amounts becoming due from Trustee to MEMO thereunder, and shall indemnify and hold MEMO harmless against any and all damage, loss expense (including attorney's fees) and/or liability sustained by it by reason of or related to Trustee's failure to perform the Agreement. The Agreement may be modified by MEMO and Trustee without notice to the undersigned and without affecting this Guaranty. MEMO may enforce this Guaranty against the undersigned in the Court of Common Please of Cumberland County, Pennsylvania (to which jurisdiction of said Court the Undersigned consents), as well as in any other court and state having jurisdiction, whether or not any action is ever taken by MEMO against Trustee. The Undersigned hereby waive all notices whatsoever with respect to this Guaranty except for notice of demand for payment from the Undersigned. The Undersigned hereby consent to the taking of, or the failure to take, from time to time without notice to the Undersigned, any action of any nature whatsoever with respect to the Agreement, including but not limited to any renewals, extensions, modifications, postponements, compromises, indulgences, waivers, surrenders exchanges, releases, and failure to pursue or preserve rights against any person, and the Undersigned shall remain fully liable hereon notwithstanding any of the foregoing. Except as provided herein, the Undersigned hereby waive all defenses whatsoever to the Undersigned's liability hereunder except the defenses of (1) payment, and (2) lack of notice as required in the Agreement. Upon default hereunder, the Undersigned hereby authorizes and empowers irrevocably the Prothonotary or any Clerk or any attorney of any court of record of Pennsylvania or elsewhere to appear for and to confess judgment against the Undersigned for all amounts due hereunder, plus all costs of suit, legal interest to date, and thirty percent (30%) added for attorney's fees, releasing errors, waiving stay of execution, and authorizing the immediate issue of a writ of execution, all in accordance with the Pennsylvania Rules of Civil Procedure. For such purpose, this Guaranty or a copy hereof verified by affidavit by the Undersigned or on behalf of the Undersigned by said Prothonotary, Clerk or attorney, shall be sufficient warrant. The authority and power to appear for and to confess or enter judgment against the Undersigned shall not be exhausted by the initial exercise thereof; the same may be exercised, from time to time, as often as MEMO shall deem necessary and desirable, and this Guaranty shall be a sufficient warrant therefor. The Undersigned acknowledge that by authorizing MEMO to confess judgment hereunder, the Undersigned have waived the right to notice in a prior judicial proceeding to determine their rights and liabilities. This Guaranty is given in connection with and evidences the obligation of the Undersigned to make payment in connection with a commercial transaction. This Guaranty is irrevocable and shall be binding and operative until such time as MEMO shall have been paid all sums owed to it under the Agreement and that may arise pursuant to this Guaranty. This Guaranty shall be governed by and coast ied in accordance with the laws of the Commonwealth of Pennsylvania, 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 TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE, AND THE POWER OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR, WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH AGREEMENT, OR ANY OTHER CAUSE. Guarantor's Signature Guarantor's Signature r? Print Guarantors Name PLl57E8 2 P?47? Print Spouse's Name Z::Z i F Home Address ` " ? 3 pal" L ST Home Address City State zip code city State Zip Code 23 Date Date *If not married, please indicate by affixing "N/A" on line for second Guarantor's signature. No-b-7, 2002 VERIFICATION The undersigned individual hereby states that he/she is an employee of the Pennsylvania Food Merchants Association with the authority to verify the statements contained in the foregoing complaint involving its wholly owned subsidiary, Merchants Express Money Order Company. The undersigned individual also states that the statements made in the aforementioned complaint are true and correct to the best of his/her knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. Cons. Stat. §4904 relating to unworn falsifications to authorities. Z 411-"? Dan Oliva MEMO Money Order Company, Inc. PLAINTIFF V. Dasharath J. Patel Individually, jointly and severally, DEFENDANT and Puspa D. Patel Individually, jointly and severally, DEFENDANT and Banta, Inc. d/b/a Duey's Stop & Shop 2 Corporation DEFENDANT COURT OF COMMON PLEAS, CUMBERLAND COUNTY No. AFFIDAVIT OF ADDRESSES COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF CUMBERLAND 2009 The undersigned being duly sworn according to law, deposes and states that he is an employee of the Pennsylvania Food Merchants Association with the authority to make this Affidavit on behalf of the Plaintiff, Merchants Express Money Order Company, a wholly owned subsidiary of the Pennsylvania Food Merchants Association. The undersigned also states that the address of the Plaintiff is: 1029 Mumma Road, Wormleysburg, Pennsylvania, 17043 and that the addresses of the Defendants are as follows: Banta, Inc. Dasharath J. Patel Puspa D. Patel 101 S. Main Street 413 Maye Street 413 Maye Street Wingate, NC 28174 Wingate, NC 28174 , Dan Oliva SWORN to and subscribed before me this , day of , 2009. Notary Public MEMO Money Order Company, Inc. PLAINTIFF COURT OF COMMON PLEAS, CUMBERLAND COUNTY V. Dasharath J. Patel individually, jointly and severally, DEFENDANT and Puspa D. Patel Individually, jointly and severally, DEFENDANT and Banita, Inc. d/b/a Duey's Stop & Shop 2 Corporation DEFENDANT 12009 No. AFFIDAVIT OF NON-MILITARY SERVICE 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 Association with the authority to make this Affidavit on behalf of the Plaintiff, Merchants Express Money Order Company, a wholly owned subsidiary of the Pennsylvania Food Merchants Association. The undersigned also states that to the best of my knowledge, information, and belief, the Defendants are not in the Military or Naval Service of the United States or its Allies, or otherwise within th of the Soldiers' and Sailors' Civil Relief Act of Congress of amen Dan SWORN to and subscribed before me this day of 12009. Notary Public FE1. r OF T?iE- u; 'ry?v "19 13 1' 1 2 Cl 7. s-d IILW? ? ?a-7 yas