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HomeMy WebLinkAbout09-5127DEERE & COMPANY, Plaintiff VS. LEROY K. GORDON, Defendants IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. (J? - 5 i X7 atvik -TP'rIM : CIVIL ACTION -LAW NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Telephone: (800)-990-9108 NOTICE The amount of your debt is as stated in the attached document. The name and address of the creditor to whom the debt is owed is as named in the attached document. This is an attempt by a debt collector to collect a debt. Any information obtained will be used for that purpose. Unless you notify this office within thirty (30) days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume that this debt is valid. If you notify this office in writing within thirty (30) days from receiving this notice that the debt, or any portion thereof, is disputed, this office will obtain verification of the debt and mail you a copy of such verification. Collection agencies are regulated by a federal law which grants you certain rights. One of these is the right to have us cease communication with you about this debt. If you ask us in writing to cease, we will. This law is administered by the Federal Trade Commission, Division of Credit Practices, Washington, D.C. 20580. If you request this office in writing within thirty (30) days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor. McNees Wallace & Nurick LLC Clayton W. Davidson, Esquire Attorney I.D. 79139 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Phone: (717) 232-8000 cavidson@mwn.com Clayton W. Davidson PA Attorney I.D. No. 79139 McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 260-1678 (Direct Fax) (717) 232-8000 (Phone) cdavidson(a ,mwn.com Attorneys for Plaintiff, Deere & Company DEERE & COMPANY, Plaintiff VS. LEROY K. GORDON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW COMPLAINT Plaintiff, Deere & Company, by and through its undersigned counsel, hereby files this Complaint against the Defendant, Leroy K. Gordon, and in support thereof avers the following: PARTIES 1. Plaintiff, Deere & Company ("Deere"), is a Delaware corporation doing business at 6400 NW 86th Street, Johnston, Iowa, 50131. 2. Defendant, Leroy K. Gordon ("Gordon"), is an adult individual residing at a last known address of 186 Booz Road, Shippensburg, Pennsylvania 17257. 3. Deere is authorized to bring this action pursuant to 15 Pa.C.S.A. § 4122(a)(8). JURISDICTION AND VENUE 4. This Court has jurisdiction over this matter pursuant to 42 Pa.C.S.A. § 931(a). 5. This Court is the proper venue for this matter pursuant to 42 Pa.C.S.A. § 931(c) and Pa.R.C.P. Nos. 1006 & 1072 because a transaction or occurrence out of which the cause of action(s) arise took place in Cumberland County, Pennsylvania. BACKGROUND 6. On June 14, 2006, Gordon borrowed the sum of $88,489.80 (the "Loan") from Clugston AG and Turf, Inc. (the "Dealer") to purchase, among other things, John Deere 4X4 Gator (the "Collateral") for his personal use. 7. Immediately thereafter, Gordon executed a Retail Installment Contract - Lien Contract - Security Agreement (the "Loan Agreement") evidencing the Loan and granting the Dealer a purchase money security interest in the Collateral. Attached hereto as Exhibit A and incorporated herein by reference is a true and correct copy of the Loan Agreement (less any applicable tax identification information). 8. Deere's purchase money security interest in the Collateral was automatically perfected pursuant to 13 Pa.C.S.A. § 9309(1) because the Collateral was purchased by Szalczyk as consumer goods. In re John, 940 F.2d 916 (3d Cir. 1991) (purchase money security interest in consumer goods is automatically perfected under Pennsylvania's version of the Uniform Commercial Code); In re Pettit, 18 B.R. 8 (Bankr. E.D.Ark. 1981) (in matters of classification of property, courts should not frustrate the clear and unequivocal intentions of the parties as expressed in a controlling agreement). 9. On that same day, the Dealer assigned the Loan Agreement to Deere. 10. Gordon has defaulted under the Loan Agreement by failing to make timely payments due and owing thereunder since September 2007. 11. Gordon has resold or voluntarily surrendered all of the collateral except the Gator. 2 12. The amount due and owing under the Loan Agreement as of July 16, 2009 is $37,490.36 (along with $8.34 per diem interest, costs and reasonable attorney fees until paid in full) (the "Unpaid Balance") 13. The Gator has an estimated wholesale value of $4,500.00, depending upon wear and tear and market conditions. 14. Deere has fully performed its obligations under the Loan Agreement and has not breached the Loan Agreement in any manner. 15. Deere believes the Gator is being unlawfully detained by Gordon at 186 Booz Road, Shippensburg, Pennsylvania 17257. 16. Gordon refuses to return the Gator to Deere despite his defaults under the Loan Agreement. COUNT I - REPLEVIN 17. Deere incorporates herein by reference the allegations contained in paragraphs 1 through 18 above. 18. Pursuant to Pa.R.C.P. No. 1019(h), this count is based upon a breach of a written agreement, i.e. the Loan Agreement, which is attached as Exhibit A to this Complaint. 19. As a result of the payment defaults under the Loan Agreement, Deere, as a secured creditor, is entitled to replevy the Gator in order to exercise its rights against the Gator to pay the Loan. 13 Pa.C.S.A. § 9609; Karp Bros., Inc. v. W. Ward S & L Assn., 271 A.2d 493 (Pa. 1970). WHEREFORE, Plaintiff, Deere & Company, requests this Court to enter judgment in replevin in its favor and against Leroy K. Gordon and grant Deere & Company possession of the 3 John Deere Gator being unlawfully detained by Leroy K. Gordon at 186 Booz Road, Shippensburg, Cumberland County, Pennsylvania 17257. COUNT II - BREACH OF CONTRACT 20. Deere incorporates herein by reference the allegations contained in paragraphs 1 through 19 above. 21. Pursuant to Pa.R.C.P. No. 1019(h), this count is based upon a breach of a written agreement, i.e. the Loan Agreement, which is attached as Exhibit A to this Complaint. 22. Pursuant to the terms of the Loan Agreement and as a result of the payment defaults by Gordon, Deere hereby declares the Unpaid Balance immediately due and payable. 23. To the extent Deere is able to replevy the Gator, Deere will provide proper credit for any future sale of the Gator towards the Unpaid Balance. WHEREFORE, Plaintiff, Deere & Company, requests this Court to enter judgment in its favor and against Leroy K. Gordon in the amount of the Unpaid Balance. McNEES WALLACE & NURICK LLC Date: July 27, 2009 BY: ?/ V ?`'----- Clayton W. Davidson PA Attorney I.D. 79139 Dana M. Windisch PA Attorney I.D. 208718 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 Direct Fax: 717-260-1678 Phone: 717-232-8000 cavidson@mwn.com Attorneys for Plaintiff, Deere & Company 4 (Page 3 'of 20) JOHN DEERE CREDIT Application ID: 10321552 Version Number: 15 FIXED RATE CONTRACT Consumer 8 Commercial Equipment RETAIL INSTALLMENT CONTRACT - LIEN CONTRACT - SECURITY AGREEMENT Contract Be01n Date: 05!22!2006 SELLER'S NAME AND ADDRESS CLUCSTON AG AND TURF, INCORPORATED DEALER NUMBER PHONE NUMBER 7217 BLACK GAP RD CIIAMBERSBURG, PA 17201 03-4283 717-2634103 PHYSICAL DAMAGE INSURANCE REQUIRED: (See Provisions Below) The Insurance provided hereunder does not include liability insurance coverage for bodily injury or property damage caused to others. If I desire liability insurance coverage, I should obtain such coverage from an agent of my choice. BOYMNOa 171aCLOWRSa:I m,ry 0W„ PhyslsMOSmsp- tmwrl.- Imm atryons 1-Mil B,N TERM IN MONTHS TOTAL PREWU0M 1 .4 Pt".1 -1 Ounsps I-,_ (SIM N S,ir boa) 6 -«-p6M- b Yo V. It I pH f114 k4uq?tw R?wSb Y04 I wN PAY IM D?R7uIT {bwn Id e4m No IM,"lnw MO b- P -WW un6u 1-V- -t S,- nant -W M P-6- 6 -n-wn. X Y R' ,ADDRESS BUYER'S BUYERS TYPE OF LF.ROY GORDON SOC. SEC. NUMBER PHONE NO. BUSINESS PO BOX 710 SHIPPENSBURC PA 17257.0710 717-4774616 BUYER RESIOES IN (Courotyl56q-) BUYERAOREES TO KEEP 00003 IN (CM0118t-IS) rRANKLIN PA FRANKLIN, PA PROMISE TO PAY INSTALLMENTS: I agree that I have examined and received the Goods and/or Services whose price Is shown below. I promise to pay the TOTAL OF PAYMENTS (Line 8 below) in installments as-shown below. Having been quoted both a time price and a lesser cash price, I have chosen to pay you the time price for the Goods described below. You can inspect the Goods at any reasonable time. This sale is not contingent on further financing. Unless I otherwise cer ity below, this is a consumer credit transaction and the Goods will be used primarily for personal, family or household purposes. Each person who signs this contract agrees jointly and severalty to abide by its terms. This means I must make required payments even if someone else signed it, If you release any other person, release any security, waive any rights under this contract, extend new credit or renew this contract. TRADE-IN: Buyer represents that any trade-in property is free and clear of all security agreements, liens and encumbrances. PARTIES: Except with respect to the NOTICE TO BUYER below, in this agreement the words "1", "we", "me", and "my" mean the persons, whether one or more, who sign it as "Debtor(s)" (who is also known as "Buyer(s)"). The words "you" and 'our" refer to the Seller (who is also known as "Secured Party") or to anyone the Seller assigns this agreement to, and will mean Deere 6 Company if it purchases this agreement. The Seller identified above Is making the disclosures contained In this agreement. JUN 2 3 2006 I i D _ fyo THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAGE ac- 0611412006 Sonsm.,s Nor: 10321552 E%Aw wd TrP-: C S CE Personal DOC9009 Appikswn wD 10321552 ve sim mumW: 15 custwW 11018" Page 1 of 7 RerWon O-h: OdOber, 2003 I IIIIII III 111111111111111111111 U1 III IN 11111111111111111 (Page 4 'of- 20) Fow E OTY, NTPI ClR NEWT ASEV R. MODEL GOODS RquO-14 AMOUNT l NEW JD 3520 519,068.29 ' l PRODUCT to NO. LV351SH2511794 1 7- 1 NEW JD 3120 3120 COMPACT UTILITY TRACTOR SIS,277A3 PRODUCTIDNO. LV3120HIII747 1 NEW JD HPX HPX 4X4 f9,i11.03 PRODUCT to NO. MOHP4DX042694 1 NEW JD 757 757 MIDZTRAKWM60"DECK 58,364.68 PRDDUCT ID No. TC0757SWO251 2 NEW JD 72 SIDE DISCHARGE DECK MOWER $5.608.28 PRODUCT ro NO. M000720330639, M0007213330087 I NEW JD 300 3000X Loader $5,441.64 PRODUCTIDNO. W03000X010374,WWOOCXDDS149 I NEW FRO 1067 Spin Spreader SS,000.00 PRODUCT ID NO. WDOSIO72MS43156 2 NEW JD I/ Z SNOW BLOWER 53,956.19 1 PRODUCT ID NO. 2757M12NM00 I NEW FRO 1072 GM 1072EGroom list Mower 52,398.63 PRODUCT to No. BCGM1072E628998 I NEW, 3" DISC HARROW $1,400.00 PRODUCT to NO. ?, S8? t NEW FRO 1060 S' STANDARD DUTY REAR BLADE 5550.00 y pgoDUCTtoNO. WSR8206OL600045 TRADE-!N end GAS DOWN PAYMENT OTY. MFR. MODEL DESCRIPTIONOFTRADE?IN(Ftan PumM"Ord.r) PRODUCT ID NO. AMOUNT CASH DOWN PAYMENT. S10.000.00 RENTAL APPLIED: $0.00 TOTAL TRADE-4N PLUS CASH DOVM: f 10.000.00 THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAGE 06114f2DO6 a.tw,t No, 10321552 Egdpn.m Typ.: C 8, CE PS.tw,t Nor, 10321552 Egwpn..t Type: C 8, CE Pefeonal DOC9009 Appk.0wt1D: 10321552 v.ri-N--"r. 15 cuslonrrtr/am Page 2 of 7 R.HiiP DOW October, 2003 I11111111Hill IIIIIIIIIIIIIIIi 1111IIIIIIIIIIIIIIil111111 (Page 5 of 20) CHARGE SEGINSrMaF 2W, Unless otherwise provided below payments are due each surxxssive Month, and any other period identtlled below, on the same da of the month as Mrs trust a ment: Jul 200! ' NUMBER OF AMOUNT OF FlICH DUE OA 60 1 ___ 51.476.42 I Jul), Tho omw a sWwn boom a Fit-m Chops, Tool of Pay"rAs and Total Solo Pddo ors MUmabs Wood upon on oMUmPh" OM P-T-Wo 11111a mad- CA M$ 80W& W WV w duo data socordln9 a d,4IAlo11ram wm"&. TM ocwsl Flranw Charyo, Tabl at Poym rft. snd TM I Salo Pe" mry vary daPond4,p upon da oody or tots P-Ymsm W schoduw laaalaoa. SALES TAX 53,282.72 (ftkd to GWL A ndM CASH PRICE 1 $79,462.29 QrKk" Tss TOTAL DOYM PAYMENT 2 $10,000.00 (sum of Tnd44m S Cash Down PsymonD UNPAID OAIANCE OF CASH PRICE 3 S69,462.29 (The $- caM a aooounl wen you INSURANCE 4 50.00 Inl DWMQ# Paid to 1n o-o C--"'"*) gUDINATION FEES 4A $0.00 to Pone" LAO IN Sa two of MMM OFFICIAL FEES .. MW ntfidh) S 50.00 AMOUNT FSNNCED 01nas 5, 4,41A S 5) a 569,462.29 Ths smowd M umn FINANCE CHARGE (9osodonUnae) 7 $19,1W I wr TOTAL OF PAYMENTS No-S S 7) Th. od10,1411 V41 PONT If I mob 18 a $88, 5.20 PdYm4na o yOw".d ANNUAL PERCENTAGE RATE 9.90% cr1M WM of nn wade b a T.-Or r ") TOTAL SALE PRICE (UnM 1, 41.41A, 5 8 T) The toil p4oa of my PwdhOM W MINN, euNans rtry Oown PaymoN d 598,585.20 $15,000.80 SECURITY INTEREST: I give you a security interest in the Goods being purchased. LATE CHARGES: If this is a consumer credit transaction, I promise to pay a late charge on each Installment which is not paid within 10 days (15 days in Maine, Mississippi and Nebraska) from the dale it Is due. This charge will be 5% of the unpaid amount of the Installment, or $5.00, whichever is less, However, if this agreement was signed In one of the following states, the late charge will be as follows: (The percentage stated is based on the unpaid amount of the installment.) Arizona, Missouri, Montana, $10.00, Delaware 5% or 515.00, whichever is less; Maine 5% or $10.00 whichever is less; Alaska, Florida, Illinois, Kentucky, Maryland, Michigan, Nevada, New York, Ohio, Oregon, Tennessee, Vermont and Virginia, 5%; Mississippi, 4%; Nebraska, 5% or $25.00, whichever is less; North Dakota, 10% or $10.00, whichever is less, PREPAYMENT REFUNDS: 1 may prepay the full outstanding balance due under this agreement at any time before my payments are due and will get a refund of any unearned finance charge. ADDITIONAL CONTRACT INFORMATION: See all of the pages of this agreement for additional information regarding non-payment, default, the right to demand Immediate payment, and prepayment refunds. SECURITY AGREEMENT: To secure the obligation evidenced by this contract and any other obligation that I may owe to Seller. I grant Seller a Security Interest in the Goods described above (which term includes items, I any, listed as "security" or "additional security") and all parts and accessories now or hereafter Incorporated in or on such Goods by way of addition, accession or replacement. I also grant to you a Security Interest in any proceeds, including any refunds of insurance premiums financed hereunder and in any insurance proceeds payable because of any loss or damage to the Goods financed hereunder. If this agreement is not a consumer credit agreement, I acknowledge that all security granted on any other agreement between myself and Seller shall also secure the obligation described in this agreement. APPLICATION OF MY PAYMENTS AND PROCEEDS: To the extent permitted by law, any money you get from me, as well as any insurance proceeds, proceeds of disposition of the Goods and returned Insurance premiums may be applied, at your choice, to what I owe under this agreement or to any other debt I owe you or one of your affiliates, in spite of any instructions I may send you. Also, they may be applied to finance charges before the unpaid balance of the Amount Financed and, If permitted by law, to late charges, charges for dishonored checks and past due interest before Installments. If any proceeds from the sale of the Goods or insurance are applied to the debt, I remain liable to make each periodic payment described In the contract until it Is paid in full. You can accept payments marked "paid in full" or with other restrictive endorsements without losing any of your rights under this Agreement. EARLY OR LATE PAYMENTS: It I make payments earlier or later than the scheduled payment due date, the actual finance charge earned will be different than shown above. THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAGE 0611412006 sm*l m Nw: 10321552 EgUprnomTM; C b CE Personal customs Irdaalo Page 3 of 7 DOC9009 Appfwmnlo: 10321552 v4roanNumWor: 15 RorialonD.a: October, 2003 Illlllllllllilllllllll?lIIIIIIIII?IIIIIIIIIIIIIIIIIIDllll8111111 (Page 6 of 20) LATE CHARGES: if this is a consumer credit transaction. I promise to pay a late charge on each installment which is not paid within 10 days (15 days In Maine, Mississippi and Nebraska) from the date it is due. This charge will be 5% of the unpaid amount of the Installment, or $5.00, whichever is less. However, if this agreement was signed in one of the following states, the late charge will be as follows: (The percentage slated is based on the unpaid amount of the installment.) Arizona, Missouri, Montana, $10.00, Delaware 5% or $15.00, whichever is less; Maine 5% or $10.00 whichever Is less, Alaska, Florida, Illinois, Kentucky, Maryland, Michigan, Nevada, New York, Ohio, Oregon, Tennessee, Vermont and Virginia, 5%; Mississippi, 4%; Nebraska, 5% or $25.00, whichever Is less; North Dakota, 10% or $10.00, whichever Is less. Interest will accrue on any balance remaining unpaid after the final scheduled payment due date at the Annual Percentage Rate, or any lesser rate required by applicable law. If this is a commercial credit transaction, I promise to pay a late charge on each installment which is not paid in full within 10 days (15 days in Mississippi and Nebraska) from the date it is due. That charge will accrue after maturity of the installment at a rate of 20% per annum. However, if this agreement was signed in one of the following states, the late charge will be as follows: Delaware, 5% or $15.00, whichever is less; Misslssippl, 4%; Montana, $10.00, Arizona or Nebraska 5%; North Dakota, 15% or $15.00, whichever Is less; and Virginia, 5%; and interest will accrue on any balance remaining unpaid after the final scheduled payment due date at the Annual Percentage Rate, or any lesser rate required by applicable law. CHARGE FOR DISHONORED CHECKS: In the event payment is made by a check which is dishonored, 1 agree to pay you a fee as follows: $25.00 if this agreement was signed In Alaska, Florida or Michigan; $20,00 if this agreement was signed in Arkansas, Nevada, New York; $15.00 If this agreement was signed in Maryland, Nebraska or Missouri; and $10.00 If this agreement was signed In Arizona. Also, if this Is a commercial credit transaction, that fee will be $20.00 if this agreement was signed in Kentucky, Massachusetts, New Mexico, North Dakota, Ohio, Oregon or Pennsylvania. DEFAULT; I will be in default under this agreement (a) If I do not pay an installment on this or any other agreement I have with you on lime; (b) V I try to sell, rent, transfer or give somebody else an Interest In the Goods; (c) if I abandon the Goods; (d) if I move my residence to a different County or State or otherwise remove the Goods for a period of more than 90 days from the County or Stale where I have agreed to keep them without giving you written notice in advance; (e) If I start or have started against me a court proceeding under any bankruptcy or Insolvency law; (f) 0 t make an assignment for the benefit of creditors; (g) it I do not pay any taxes on the Goods; (h) if any attachment, execution, written or other legal process is levied against any of my property; (i) If I become unable to pay by reason of death or incompetency; (j) if I fail to perform any of my promises or other obligations under this agreement; (k) i(1 fail at any time to keep the Goods properly insured as described below; (1) if I fail to maintain the Goods in good condition and repair and permit their value to be impaired; (m) if 1 permit the Goods to be used In violation of any law, regulation or policy of insurance; (n) if any warranty, representation or statement is made to you in connection with this agreement which is false in any material respect when made; or (o) if any legal entity (such as a partnership or a corporation) that has agreed to pay this agreement ceases to do business, changes its name or identity, dissolves, liquidates Its assets, changes its principal place of business or registered agent to another state or county or terminates or fails to maintain Its corporate existence. If any of these things happen, you may, after providing me with any notices required by law, demand payment of the balance due, minus the unearned finance charge figured by the actuarial method, without presentment or demand. You will also have the right to take possession of the Goods and render them unusable. In addition, I agree to assemble the Goods at a location designated by you and to pay all reasonable costs and expenses of collection (including court costs and reasonable attorney fees, and bankruptcy fees and costs, to the extent permitted by applicable law) if you have to sue me or do anything else to enforce your rights under this agreement. This includes any reasonable costs and expenses you have in peacefully taking and selling the Goods in which I have given you a security interest or in collecting any money I owe you. In no case will the costs and expenses referred to in this section be more than those allowed bylaw, Interest after judgment shall be computed at the Annual Percentage Rate, or such lesser rate required by law. It you lake possession of the Goods after I default, it shall be commercially reasonable for you to sell the Goods at a private sale: (i) at wholesale to a dealer In used goods of like kind; or (5) at retail to a purchaser directly or through a dealer in such used goods, or (iii) to any John Deere dealer or comparable seller of equipment through any on-line or in person auction, such action shall constitute a commercially reasonable sale. I acknowledge that you may, Instead of selling the security, lease or rent the security and such action shall be commercially reasonable so long as you apply the proceeds of such lease or rental to the indebtedness either as such payments are received, or based upon a present value of the scheduled payments. The enumeration of the forgoing methods described In this paragraph are without )Imitation to Seller's right to dispose of the Goods by any manner or method (whether by sale, lease or otherwise) in a commercially reasonable manner. You also have the right to take possession of the Goods or to render the Goods unusable. A 10-day notice of sale mailed to you at your address as shown on our records shall be considered reasonable notice, unless otherwise specified by applicable law. PREPAYMENT REFUNDS: I may prepay the full outstanding balance due under this agreement at any time before my payments are due and will get a refund of any unearned finance charge. Any such refund (as described above on this agreement) will be figured by use of the actuarial method - a commonly used formula for figuring refunds on the early payment of installment sales contracts. THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PA?GEEr 0611412006 30).-A Nbc 10321552 egwp-1 Tvpr. C 6 CE Personal G Page 4 017 DOC9009 ?,m„ ip: 10321552 v.,o n Nu~ 15 R-W-D-W OctQtMf, 2003 IVIII)1111VIIIVIII HE 11111 Il III VIII hillIIIII IN 101 IN (Page 7 Of 20) RISK OF LOSS AND OTHER AGREEMENTS: I will bear the risk of loss or damage to the Goods and my debt to you will not be reduced if the Goods are lost or damaged. However, If the Seller Is located in New York, my obligation to you will be limited to the fair market value of the Goods, plus any amounts then past due, in the event of a total loss due to theft, confiscation or physical damage. LOSS OF YOUR RIGHTS: You will not lose any rights you have 0 you accept late or partial payments or delay enforcing your rights under this agreement. FINANCING STATEMENT: To the extent permitted by law, I agree that a financing statement which describes either the security interest contained In this Contract or a financing statement which references all equipment currently or in the future financed by Seller or its assigns, may be filed in the appropriate governmental office without my signature. CHANGE OF LOCATION: I agree that I will notify you whenever I change my state of location, as such term Is used in Section 9-307 of the Unlform Commercial Code. CARBON OR FAX SIGNATURE: A carbon paper or facsimile transmission copy of my signature or an electronic signature shall constitute an original signature under applicable law for all purposes, including making a financing statement or other document describing the Goods enforceable. PARTS PROHIBITED BY LAW: If any part of this agreement is prohibited by taw, 4 shall not be effective, It shall not be considered to be a part of this agreement, and it shall not make any other part of this agreement invalid. ERROR CORRECTION: You may correct obvious or clerical errors on this agreement or on any purchase order or financing statement that I give you. CONSENT TO RECORD CALLS: I Consent and agree that my telephone conversations with you may be monitored and recorded to further improve your customer service. CREDIT BALANCES: If this is a consumer credit transaction, you will retain any credit balance if It Is less than $1 or if you do not know my address and It cannot be traced through the last address or telephone number provided to you. Otherwise, If my last payment under this agreement exceeds the amount to be paid by $25.00 or less, you may retain the surplus amount. CREDIT REPORTING: I agree that Seller, its assignee, and any of the assignee's affiliates may exchange credit reports and other personal, credit and financial information about me for the purposes of providing customer service, considering my eligibility for other products and services offered by them or by others and to enforce my obligations to them. PHYSICAL DAMAGE INSURANCE PROVISIONS: I understand and agree that, except to the extent this agreement is for service, I must at all limes provide physical damage insurance for the full insurable value of the Goods against all risk of loss or damage with Deere & Company named as loss payee. I may choose the person through whom 1 obtain this insurance. I understand that at my option, I may meet this requirement by having you purchase such insurance. If an amount is included for Physical Damage Insurance In line 4 of this agreement, it will be my election to do this, but such Insurance will not be purchased by you if you do not accept this contract. If an amount for PHYSICAL DAMAGE INSURANCE Is not included In line 4 of this agreement, I promise, at my expense, to purchase "all risk" physical damage insurance for the full Insurable value of the Goods and to keep it In full force and effect until my debt to you is completely paid. Such Insurance shall provide that losses will be payable to you and me, as our interests may appear. It shall also provide that the insurance may not be carioeled by me without your consent or by the insurer without at least 10 days advance written notice to you. I promise to deliver such paid-up policy to you or to fumish other evidence of paid-up insurance satisfactory to you within 15 days of the dale of this contract. 1 agree to notify you immediately if physical damage insurance on the Goods is cancelled or not renewed. If the physical damage insurance purchased by me is canceled before a satisfactory replacement policy purchased by me is furnished to you, or If I fail to deliver to you a satisfactory renewal policy or other satisfactory evidence of paid-up renewal Insurance at least 30 days before the renewal date, or if I otherwise fail to maintain Insurance as required in this agreement, you may (but are not required lo) purchase similar insurance. I agree to pay the cost of such insurance at the time you demand payment, together with interest at the rote shown on the front of this agreement as the ANNUAL PERCENTAGE RATE until paid, or to have such cost added to my installment payments, at your sole discretion, 1 understand and agree that Insurance you purchase may cost more than Insurance I could purchase, and that Insurance you purchase may contain coverages different from ones I might purchase. If you have purchased insurance and 1 fail to pay the final installment due under this agreement, you may (but are not required to) purchase such insurance for the period of time from the due dale of the final Installment until the final installment Is completely paid by me. I agree to pay the cost of this additional insurance at the time of the final installment, together with interest at the rate shown on the front of this agreement as the ANNUAL PERCENTAGE RATE shown In the contract until paid. Purchase of physical damage insurance by you will not be a waiver of any rights you may have if I default. If I default, I give you permission to cancel the physical damage Insurance on the Goods and, if allowed by law, to apply any refunds or returned premiums first to my debt to you, with any excess returned to me. All proceeds from any loss payable under physical damage Insurance on the Goods will be applied toward my debt to you or replacement of the Goods, at,.your sole discretion. It you purchase physical damage insurance for me under this agreement, I understand that I will be furnished a certificate which describes the insurance. Such Insurance will terminate if my debt to you is discharged, or if your security interest in the Goods terminates, or if I default and you cancel the insurance, or if any of the Goods is repossessed, or if the Floater Policy under which you purchase the insurance terminates. Any refunds or return premiums will, to the extent allowed by law, be applied first to my debt to you, with any excess returned to me. THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAGE 0611412006 sett*~A Nbr, 10321552 Egawws Type: C & CE Personal O ?o BMW. Page 5 of 7 DOC9009 App?•"ID:10321552 WW.RuWW: 15 fk-w-o.n: Odob-r, 2003 110111111111111111111111111110 IN 11111111111111111111111111 (Page 8 of 20) ARRBITRATION OF DISPUTES: If this is a consumer Credit transaction, in the event of any past, present or future claim or dispute between you and us arising from or relating to this agreement, any prior agreement you have had with us, your application, the relationships which result from your agreement with us or the enforceability or scope of this arbitration provision, of the agreement or of any prior agreement, you or we may elect to resolve the claim or dispute by binding arbitration. This includes any such claim or dispute, whether based upon contract, property, tort, statute, common law or equity, other than a claim relating to our right to repossess the merchandise purchased through your account by self-help, if permitted, or by judicial process. The parties agree and understand that the arbitration shall have all powers provided by law and the agreement. These powers shall include all legal and equitable remedies Including, but not limited to money damages, declaratory relief, and injunctive relief. The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have the right or opportunity to litigate disputes In court, but that they prefer to resolve their disputes through arbitration, except as provided herein. IF EITHER YOU OR WE ELECT ARBITRATION, NEITHER YOU NOR WE SHALL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM. PRE-HEARING DISCOVERY RIGHTS AND POST-HEARING APPEAL RIGHTS WILL BE LIMITED. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL, EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION. NEITHER'YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CUSTOMERS WITH RESPECT TO OTHER ACCOUNTS, OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any new claims later asserted in that lawsuit, and nothing undertaken therein shall constitute a waiver of any rights under this arbitration provision. Arbitration may be elected at any time, regardless of whether a lawsuit has been filed, unless the lawsuit Involving that claim or dispute has resulted In a final judgment. We will not invoke our right to arbitrate an individual claim you bring in small claims court or your state's equivalent court, if any, so long as the claim is pending only.in that court and does not exceed $5,000.00. Your Account involves interstate commerce, and this provision shall be governed by the Federal Arbitration Act (FAA). The arbitration shall be conducted by National Arbitration Forum (NAF) or American Arbitration Association (AAA), at the option of the party electing arbitration, in accordance with their procedures In effect when the claim Is filed. As of May 7, 2003, for a copy of their procedures, to file a claim or for other Information, contact AAA's customer service at 1-800-778-7879 or visit their webske at www.adr.ora or contact NAF at 1-800-474-2371 or by visiting their website at www arb-forum com. All claims may be flied at any NAF or AAA office. At your written request, we will advance any arbitration filing, administrative and hearing fees which you would be required to pay to pursue a claim or dispute as a result of our electing to arbitrate that claim or dispute. The arbitrator will decide who will ultimately be responsible for paying those fees. In no event will you be required to reimburse us for any arbitration filing, administrative, or hearing fees in an amount greater than what your and our combined court cost would have been it the claim had been resolved In a state court with jurisdiction. Any arbitration hearing will take place in the federal judicial district where you reside. The arbitrator shall follow applicable substantive taw to the extent consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law. If requested by any party, the arbitrator shall write an opinion containing the reasons for the award. The arbitrator's decision will be final and binding except for any appeal rights under the FAA and except that if the amount in controversy exceeds $100,000, any party may appeal the award within 30 days to a three-arbitrator panel which shall review the award de novo. The costs of such an appeal shall be bome by the appealing party regardless of outcome. Judgment upon any award by the arbitrator may be enforced in any court having jurisdiction. Our rights and obligations under this arbitration provision shall inure to the benefit of and be binding upon our parent corporations, subsidiaries, affiliates, predecessors, successors, assigns, as well as the officers, directors and employees of each of these entities, and will also inure to the benefit of any third party named as a co-defendant with us or with any of the foregoing in a claim which is subject to this arbitration provision. Your rights and obligations under this arbitration provision shall Inure to the benefit of and be binding upon all persons contractually liable under this agreement. This arbitration shall survive the payment In full by you and legal proceedings by us to collect a debt owed by you, any bankruptcy by you and any sale by us of your account. IF THIS IS A COMMERCIAL CREDIT TRANSACTION, THE FOLLOWING NOTICE DOES NOT APPLY: NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAGE 1(,? OW 1412006 a.m. _m Mx: 10321552 Eq Ap+ i Type: C b CE Personal ??b lie , i?yow page 6 of 7 DOC9009 Appro.weio: 10321552 v.NOn NW" 15 RM.las Day.: October. 2003 I?Illllll?llllllllllllllllllllll{II11111111111I1111?1>1111111111111 STATE LAW APPLYING: The construction and validity of this agreement shall be controlled by the law of the state of the settees place of business, as indicated on the front of this agreement, and the validity of the Security Interest shall be controlled by the law of the state where the Goods are to be kept and used. If the Setters place of business Is In Maryland, Subtitle 10 of Title 12 of the Maryland Commercial law will apply it Enis is a cvnaunw, COMMERCIAL PURPOSE AFFIDAVIT: IIWe being first duly sworn, affirm and represent to Seller and its assignees that this Is a commercial credit transaction, as the Goods listed above will be used by the undersigned in hislherlits business primarily for commercial purposes and will not be used primarily for personal, family, or household use. (DATE SIGNED) NOTICE TO BUYER: 1. DO NOT SIGN THIS CONTRACT BEFORE YVU KtAU I I vrt Ir i i %.vrv irrnca -, 2. YOU ARE ENTITLED TO AN EXACT AND COMPLETELY FILLED IN COPY OF THIS CONTRACT WHEN YOU SIGN IT. KEEP IT TO PROTECT YOUR LEGAL RIGHTS. 3. UNDER THE LAW, YOU HAVE THE RIGHT TO PAY OFF IN ADVANCE THE FULL AMOUNT DUE UNDER THIS AGREEMENT WITHOUT PENALTY AND UNDER CERTAIN CONDITIONS TO OBTAIN A PARTIAL REFUND OF THE FINANCE CHARGE. 4. ACCORDING TO THE LAW, YOU HAVE THE PRIVILEGE OF PURCHASING THE INSURANCE ON THE GOODS PROVIDED FOR IN THIS CONTRACT FROM AN AGENT OR BROKER OF YOUR OWN SELECTION. 6. YOU ALSO HAVE THE RIGHT TO REDEEM THE GOODS IF REPOSSESSED FOR A DEFAULT WITHIN THE TIME PERIOD PROVIDED BY LAW AND TO REQUIRE, UNDER CERTAIN CONDITIONS, A RESALE OF THE PROPERTY IF REPOSSESSED. 6. IF YOU DESIRE TO PAY OFF IN ADVANCE THE TOTAL AMOUNT DUE, THE AMOUNT OF THE REFUND YOU ARE ENTITLED TO, IF ANY, AND A STATEMENT SHOWING HOW IT WAS COMPUTED, WILL BE FURNISHED UPON REQUEST. The Seller retains a security Interest In the subject matter of this agreement I agree that the provision on this forth are part of my agreement with you and are also binding on me. 1 agree that 1 have received a completely filled In copy of this agreement, RETAIL INSTAL ENT CONTRACT OAT EWE ED: La I 11A JQ(a X 1 t G CLUGSTON URF, INCORPORATED LE OY RDON (DATE GNED) t tLER i By: (SELLER'S S/6+W TilRk7 NOTICE: The seller intends to sell this contract to (Deere & Company, 8402 Excelsior Drive, Madison, Wisconsin 53717) which, if it buys the contract will become the owner of the contract and your creditor. After the sale of this contract, all questions concerning either terms of the contract or payments should be directed to the buyer of the contract at the address indicated above. To Be Completed by Dealer ASSIGNMENT TO: DEERE & COMPANY ("DEERE") For value recelved, DEALER hereby negotiates, sells and transfers this instrument to Deere & Company ("DEERE"), its successors and assigns under the terms and conditions of the applicable Finance Agreement now in effect between DEALER and DEERE, together with the property covered hereby. This instrument is not an assignment of any of DEALER'S obligations to the purchaser of the goods. Date: Dealer: Signed By: Iruil Im FAA JOHNIJ THE TERMS OF THIS CONTRACT ARE CONTAINED ON MORE THAN ONE PAGE 0e/142008 swwwmw.. 10321552 Eadmw+1Yw: C & CE Personal DOC9009 rem-io: 10321552 v_i mvrt : 15 e?om„ lna.b Page 7 of 7 Rsrww v*w October, 2003 11111111111111111IN 111111111111111till 111111111111111111111111111 (0Z do z abed) (Page 9 of 20) PERSONAL USE STATEMENT Customer Information: Customer Name: LEROY GORDON Customer SSNfrIN,. Customer Address: PV BOX 710 SHIPPF-NSJIVRRG,._PA C'. - Application ID: 10321552 Equipment Purchased; Manufacture r Quantity New/Used Model 1 NEW JD Description: 3520 Serial Nbr(s): LV35201-1258794 1 NEW JD 3120 20EIRlI 3120 COMPACT UTILITY TRACTOR Serial Nbris): LV3120H111747 1 NEW JD HPX Description: HPX 04 jerial Nbr(s): MOHP4DX042694 1 NEW JD 757 Description: 757 MID ZTRAK WITH 80" DECK Serial Nbrish TC0757BO30251 NEW 2 JD Description: 72 SIDE DISCHARGE DECK MOWER Serial Nbrt h M000720330639, M00072033(>087 2 NEW JD 300 ' Description: 3000X Loader Serial Nbdak W03000X010374, W03000Xooa149 1 NEW FRO 1067 Description: Spin Spreader SerialNbr(s): WDOS1072141545156 1 NEW JD Description: SNOW BLOWER Sartal Nbris): 2757M12300500 1 NEW FRO 1072 Dgscriptlon: GM1072E Grooming Mower Ssrtal Nbrts2 BCGM1072EG28998 1 NEW JD Description: 3PT DISC HARROW Serial Nbrish 1 NEW FRO 1060 DescdptlOn: F STANDARD DUTY REAR BLADE Serial Nbrisl: WSRB2050L600045 FORM0053 rpprc.wn iD: 10321552 vow- N-wr: 15 Page 1 of 2 Revision Date: October, 2003 I Ilalll ? l,l?l IW I U??I ?N 11 IN IN IN IN IN M{I III (Page 10 of 20) I (We) do hereby agree that the above listed equipment financed by Deere Credit Services is solely for personal, family, or hoes old use and will not be used for agricultural, business, or commercial purposes. 6-yY? DEBTOR SIGNATURE TODAY'S DATE PERSONAL USE STATEMENT DEBTOR'S SIGNATURE TODAY'S DATE Deere Credit Services Inc. 8402 Excelsior Drive, P.O. Box 5328, Madison, WI 53705-0328 FORM0013 Revlafon Date: October, 2003 Appk4,bw iD: 10521552 Wnwn wntm; 15 I Ill l II I 11111111 IN 11111111111111 all 1111111111111 Page 2 of 2 (Page 4 of 10) Page 1 of 2 FIXED RATE I-OAN CONTRACT SECURITY AGREEMENT Goods Previously Dealer Acct. No Contract No. 03-164463807-RA Settled For? L 034283 OTB$ $61,118.82 LACK GAP ROAD CHAMBERSBURG, PA 17201 Sellers NDebtor s Name BrMa lm9Address. cludin ' Ti TURF. INC'` 32U aBorrowers (Debtor s),Name 'Malli?g Address:flnd ding.zip) ;` Borrowersa......... . ......._..... LEROY GORDON EI PO BOX 710 SHIPPENSBURG, PA 17257 r= Oly.. New/Used N Mfr Model . JD 3120 ' Goods (Equipment} CUTT Cash Rnce Product ID No ; ,y Delve d LV3120H111747 $13 03.1.12 N JD HPX GATR MOHP4DX042694 $7,77,77 61 134 251 $7 N JD 757 ZTRK . , TC0757BO30 N FRO 1067 SPRD OS1072M545156 $4,264;72 N JD 59" SBLO M059SBX020497 $3,374.41 391 78 0087 $2 N JD 1472 CMFM . , M00072D33 N JO 1472 CMFM M000720330639 $2,391.78 71 320 149 $2 N JD 300 LOAD . . W03000X008 N JD 300 LOAD W03000XO10374 $2,320.71 90 045 28998 $2 N FRO 1072 MWRD . , GM1072E6 13 194 6X500198 $1 N FRO 1066 DISK . , DH106 13 00045 $469 N FRO 1060 RBLD . RB206OL6 Contract: 03-164463807-AA Date: 06/14/2006 Load Date: 07/05/2006 OTB$: $88,489.80 CtAQ 717 77 . • ? " ,,...:: ,Iris#allment Of Pmts Amounl Due Date No ;ll orrria ion ....?:: , . , :. _.: No. Of Pmts Amount Due Date' "1W.,"Rh "s $0.00 . 57 sf,o7z.zs 10120/2006 „IrasC"r"etlrt Life+r A°mou"riOFF- nanced Est;Firiance 'CI1 $0.00 $48,712.77 $12,406.05 E§ Total of Pmts =~ $61,118.82 " Phys. Dam. Ins. Type 06/202011 I Phys Dam. Ins. Date N Cr. Life Ins.T e 0 00 Cr. Life Ins. Term . 09128/2006 Fin. Charges Be in: 90 9 APR: . DCEWH • 0 !1CPNCD::: - C DCE PLi; 0 REB .T ' F BTYPEr I `•WAVER JDSU2iif.;P:; JDPCD:? ST PRCSDT ?' 00/00/0000 CBRRN s = :'' 0.000 '0RPAD.% 0.00 aS eC P fri INCCQ#t:-: -. 'DRPUPR--' 0.000 F.NANS`' PA FDPPUF,r 0.00 (Page 3 'of 10) Page 2 of 2 Voucher #: V7735 Date Acce ted: ' ?? `?-?" B t rl €I _i r: t. i? F) FIXED RATE LOAN CONTRACT SECURITY AGREEMENT ORIGINAL Goods Previously Dealer Acct. No Contract No. 03-164463807-RA Settled For? L 034283 OTB$ $61,118.82 Sellers Name and Address CLUGSTON AG 2Z TURF, INC. Borrowers (Debtor's) Name?& Malting Addrass;,(tnclud(ng Zip) , 3213 BLACK GAP ROAD: CHAMBERSBURG, PA 17201 BorTOVwer's (Debtor's); Name 8 Mailing A4dress(inG400 Zip) LEROY GORDON PO BOX 710 SHIPPENSBURG, PA 17257 Oty ;New/Used MFr4; ,Model ' N JD 3120 oods(Egtalpment) „Product ID No y ,,w Dellvered?Cash Pnce CUTT LV3120H111747 $13,031.12 N JD HPX GATR MOHP4DX042694 $7,773.77 N JD 757 ZTRK TC0757BO30251 $7,134.61 N FRO 1067 SPRD OS1072M545156 $4,264.72 N JD 59" SBLO M059SBX020497 $3,374.41 N JD 1472 CMFM M00072D330087 $2,391.78 N JD 1472 CMFM M000720330639 $2,391.78 N JD 300 LOAD W03000X008149 $2,320.71 N JD 300 LOAD W03000X010374 $2,3201 N FRO 1072 MWRD GM1072E628998 $2,045.90 N FRO 1066 DISK DH1066X500198 $1,194.13 N FRO 1060 RBLD RB206OL600045 $469.13 Contract: 03-164463807-AA Date: 06/14/2006 Load Date: 07/05/2006 OTB$: $88,489.80 (0i 3o Z abed) (Page 3 of 5) Page 1 of 2 FIXED RATE LOAN CONTRACT SECURITY AGREEMENT Goods Previously Settled For? Dealer Acct. No Contract No. 03-1b44bJt5Ut-tits L 032271 OTB$ $40,881.60 Sellers Name and Address: LANDMARK EQUIPMENT, LLC: 13115 CEARFOSS PIKE: HAGERSTOWN, MD 21740 Borrower's (Debtor's) Name & Mailing Address (Including Zip) Borrower's (Debtor's) Name & Mailing Address (Including Zip} LEROY GORDON 186 BOOZ RD SHIPPENSBURG, PA 17257 Qty. New/Used N Mfr. JD Model HPX Goods (Equipment) GATR Product ID No. MOHP4DX042694 Delivered Cash Price $7,327.88 N JD 757 ZTRK TC0757BO30251 $6,725.39 N FRO 1067 SPRD 031072M545156 $4,020.11 N JD 59" SBLO M059SBX020497 $3,180.86 N JD 1472 CMFM M00072D330087 $2,254.60 N JD 1472 CMFM M000720330639 $2,254.60 N JD 300 LOAD W03000X008149 $2,187.61 N JD 300 LOAD W0300CX010374 $2,187.61 N FRO 1072 MWRD GM1072E628998 $1,928.54 N FRO 1066 DISK DH1066X500198 $1,125.64 N FRO 1060 RBLD RB206OL600045 $442.22 Contract: 03-164463807-RA Date:06/14/2006 Load Date: 10/04/2006 OTB$:$61,118.82 Installment Information Cash Price $33,635.06 No. Of Pmts Amount Due Date No. Of Pmts Amount Due Date Ins. Ph S.Dam $0.00 51 $801.60 04/20/2007 Ins. Credit Life $0.00 Amount Financed $33,635.06 Est. Finance Ch g. $7,246.54 Est. Total of Pmts $40,881.60 Ph s. Dam. Ins. Type H Phys Dam. Ins. Date 0512012011 Cr. Life Ins.Type N Cr Life Ins. Term 0.00 Fin. Charges Begin: 05101/2007 APR: 9 DCE WH 0 CPNCD S DCE PL 0 REBAT F BTYPE I WAVER JDSU1 TCRNX 6 JDSU2 KCO JDPCD ST RCSDT 00/00/0000 CBRRN 0.000 ORPAD% 000 . Spec P m INCCD DPPUP 0.000 FNANS PA DPPUF 0.00 A Voucher #: V5147 Date Acce ted: B : ' FIXED RATE LOAN CONTRACT 4ta SECURITY AGREEMENT Goods Previously Dealer Acct. No Contract No. 03-164463807 RB I Settled For? L 032271 OT B$ $40,881.60 Sellers Name and Address: LANDMARK EQUIPMENT, LLC: 13115 CEARFOSS PIKE- HAGERSTOWN, MD 21740 Borrower's (Debtor's) Name & Mailing Address (including Zip) Borrower's (Debtors) Name & Mailing Address (Including Zip) LEROY GORDON 186 BOOZ RD SHIPPENSBURG, PA 17257 Qty. New/Used Mfr.: Model Goods (Equipment) Product ID No. Delivered Cash Price N JD HPX GATR MOHP4DX042694 $7,327.88 N JD 757 ZTRK TC0757BO30251 $6,725.39 N FRO 1067 SPRD OS1072M545156 $4,020.11 N JD 59" SBLO M059SBX020497 $3,180.86 N JD 1472 CMFM M0007213330087 $2,254.60 N JD 1472 CMFM M000720330639 $2,254.60 N JD 300 LOAD W03000X008149 $2,187.61 N JD 300 LOAD W03000X010374 $2,187.61 N FRO 1072 MWRD GM1072E628998 $1,928.54 N FRO 1066 DISK DH1066X500198 $1,125.64 N FRO 1060 RBLD RB206OL600045 $442.22 Contract: 03-164463807-RA Date: 06114/2006 Load Date: 10/04/2006 OTB$: $61,118.82 (S do z abed) VERIFICATION I, Doug Dunek, Litigation Administrator of Deere & Company, hereby verify that I am authorized to make this Verification on its behalf and that the facts contained in the attached Complaint are true and correct to the best of my knowledge, information and belief and that the same are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsificatio authorities. Doug SJ . L 0,1t_ ?U r `i Ie-- ; 8 C' s : _ ? ntt r f „ Ati, 4'18.50 PO Ar-%t e ;as5a(o Sheriffs Office of Cumberland County R Thomas Kline Sheriff' Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor 1601,111'r At '?rmbcrl,?h8 OFI: CE a- THE S-ERIFF 2099 AUG) --6 Ail it ej. 2 8 cUw_ j- j, Deere & Company vs. Leroy K. Gordon Case Number 2009-5127 SHERIFF'S RETURN OF SERVICE 07/30/2009 08:27 PM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on July 30, 2009 at 2027 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Leroy K. Gordon, by making known unto himself personally, defendant at 186 Booz Road Shippensburg, Cumberland County, Pennsylvania 17257 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $46.44 SO ANSWERS, July 31, 2009 R THOMAS KLINE, SHERIFF eputy Sheriff y4 DEERE & COMPANY, Plaintiff VS. LEROY K. GORDON, Defendant : IN THE COURT OF COMMON PL: AS : OF CUMBERLAND COUNTY, : PENNSYLVANIA NO. 09 - 5127 Civil Term Civil Action - Law PRELIMINARY OBJECTIONS Defendant, Leroy K. Gordon, by and through his undersigned counsel, hereby files the following Preliminary Objections to the Complaint filed by the Plaintiff, Deere & Company in the captioned matter: BACKGROUND 1. Plaintiff, Deere & Company ("Deere"), filed a civil Complaint before this Honorable Court, in the captioned matter, to commence a two-count action against the Defendant, Leroy K. Gordon ("Gordon") 2. Deere alleges that Gordon executed a "Retail Installment Contract - Lien Contract - Security Agreement (the "Loan Agreement")" to grant a purchase money security} interest to Clugston AG and Turf, Inc., the Dealer, and represents that a true and correct copy of the Loan Agreement is attached to the Complaint as "Exhibit A." (Complaint p. 7). 3. Deere asserts that "the Dealer assigned the Loan Agreement to Deere." (Complaint p. 9). 4. Deere alleges that Gordon "defaulted under the Loan Agreement." (Complaint p. 10). 5. Count I of the Complaint is based upon an alleged breach of the Loan Agreement. (Complaint p. 18). 6. Count II of the Complaint is based upon an alleged breach of the Loan Agreement. (Complaint p. 21). 7. Both of the Counts in the Complaint arise out of the Loan Agreement. LACK OF JURISDICTION PURSUANT TO Pa. R.C.P. No. 1028(a)(1) 8. The averments contained in the above paragraphs 1 through 7, are incorporated herein, by reference thereto. 9. The Loan Agreement states, in the third paragraph of page number six (6), tbO: "The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have the right or opportunity to litigate disputes in court, but that they prefer to resolve their disputes through arbitration, except as provided herein." 10. If the Loan Agreement is a valid contract between the parties, then the partiel thereto waived their rights to litigate, in court, disputes arising from or relating to the Loan Agreement. 11. Gordon has not opted nor elected to litigate, rather than arbitrate, any dispute that arise out of the Loan Agreement. 12. The parties to the Loan Agreement chose to avoid the subject matter jurisdiction of this Honorable Court. WHEREFORE, Defendant, Gordon, respectfully requests that this Honorable Court dismiss both of the Counts of the Complaint filed by Deere, pursuant to Pa.R.C.P. No. 1028(a)(1), due to a lack of jurisdiction over the subject matter of the controversy of which Deere complains. AGREEMENT FOR ALTERNATIVE DISPUTE RESOLUTION PURSUANT TO! Pa. R.C.P. No. 1028(a)(6) 13. The averments contained in the above paragraphs 1 through 7, are incorporated herein, by reference thereto. 14. The Loan Agreement states, in the first paragraph of page number six (6): "ARBITRATION OF DISPUTES: If this is a consumer Credit transaction, in the event of any past, present or future claim or dispute between you and us arising from or relating to this agreement, and prior agreement you have had with us, your application, the relationships which result from your agreement with us or the enforceability or scope of this arbitration provision, of the agreement or of any prior agreement, you or we may elect to resolve the claim or dispute by binding arbitration." 15. If the Loan Agreement is a valid contract between the parties, then the parties thereto provided for the election, by either party, of binding arbitration as an alternative to litigation. 16. Gordon has elected arbitration as an alternative to litigation. 17. If Gordon has not elected arbitration as an alternative to litigation, through the Loan Agreement or otherwise, then he does so through this Preliminary Objection. 18. If the Loan Agreement is a valid contract between the parties, then the parties entered into an agreement for alternative dispute resolution within the meaning of Pa. R.C.P. No. 1028(a)(6). WHEREFORE, Defendant, Gordon, respectfully requests that this Honorable Court dismiss both of the Counts of the Complaint filed by the Plaintiff, Deere, due to the exister? e of a prior agreement for alternative dispute resolution, pursuant to Pa. R.C.P. No. 1028(a)(6). Law Office Forest N. Myers Forest N. Myers, quire Co-Counsel for Def dant Supreme Court ID # 8064 137 Park Place West, Shippensburg, PA!, 7257 Telephone: (717) 532 -'H9046 Telefax: (717) 532 t, 8879 Date: 9-10-09 Jens Clinton Wagner, Jens Clinton V? gner Co-Counsel for De dant Supreme Court ID #2 1034 P.O. Box 106, Chambersburg, PA 117201 Telephone: (717) 574 718623 Telefax: (717) 595 -10253 Date: I verify that the statements made in these Preliminary Objections are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.5. § 49014, relating to unsworn falsifications to authorities. Date: ?iT9 NOTICE TO PLEAD To: Deere & Company You are hereby notified to file a written response to the enclosed Preliminary Obj within twenty (20) days from service hereof or a judgment may be entered against you. Law Office Forest N. Myers Forest N. Myers, Esquire Co-Counsel for Defendant Supreme Court ID #18064 137 Park Place West, Shippensburg, PA 17257 Telephone: (717) 532 - 9046 Telefax: (717) 532 - 8879 Jens Clinton Wagner, Jens Clinton Wagner Co-Counsel for Defy dant Supreme Court ID #201034 P.O. Box 106, Chambersburg, PA' 7201 Telephone: (717) 574 - 8623 Telefax: (717) 595 0253 Date: 9- ko - 09 Date: Pleadings and other legal papers may be served by mail to: Law Office Forest N. Myers Forest N. Myers, Esquire 137 Park Place West, Shippensburg, PA 17257 Telephone: (717) 532 - 9046 Telefax: (717) 532 - 8879 and/or Jens Clinton Wagner, Esquire P.O. Box 106 Chambersburg, PA 17201 Telephone: (717) 574 - 8623 Telefax: (717) 595 - 0253 DEERE & COMPANY, : IN THE COURT OF COMMON PL*AS Plaintiff : OF CUMBERLAND COUNTY, : PENNSYLVANIA VS. NO. 09 - 5127 Civil Term LEROY K. GORDON, Civil Action - Law Defendant CERTIFICATE OF SERVICE I, Forest N. Myers, Esquire, certify that a true and correct copy of the foregoing do was served by depositing the same in the United States Mail, First Class, postage prepaid, Shippensburg, Pennsylvania, on the day of , 2009, on the following: Clayton W. Davidson, Esq. McNEES WALLACE & NURICK LLC PA Attorney ID# 79139 100 Pine St P O Box 1166 Harrisburg PA 181-8-1166 Law Office Forest N.j Myers Forest N. Myers, squire Co-Counsel for Der ndant Supreme Court ID #18054 137 Park Place West, Shippensburg, PAS 17257 Telephone: (717)53Z 9046 Telefax: (717) 532, 8879 Date: FILED-OFF 1, CE OF THE Psi"FT'.!nP,?TAF?Y 2009 SEP ! 1 AM 9: G 9 cuvir,-" ^ ?« ? y DEERE & COMPANY, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, : PENNSYLVANIA VS. NO. 09 - 5127 Civil Term LEROY K. GORDON, Civil Action - Law Defendant CERTIFICATE OF SERVICE I, Forest N. Myers, Esquire, certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, First Class, postage prepaid, at Shippensburg, Pennsylvania, on the I I+%. day of Se:-,P , 2009, on the following: Clayton W. Davidson, Esq. McNEES WALLACE & NURICK LLC PA Attorney ID# 79139 100 Pine St P O Box 1166 Harrisburg PA 181-8-1166 Law Office Forest N. Myers Forest N. Myers, Esquire Co-Counsel for Defendant Supreme Court ID 418064 137 Park Place West, Shippensburg, PA 17257 Telephone: (717) 532 - 9046 Telefax: (717) 532 - 8879 Date: 9- ??.-09 OF ThiF f'Fr,T-!fN,.f !^)7ARY 2009 SEA' 14 FM 2: 32 DEERE & COMPANY, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, : PENNSYLVANIA VS. NO. 09 - 5127 Civil Term LEROY K. GORDON, Civil Action - Law Defendant CERTIFICATE OF SERVICE I, Forest N. Myers, Esquire, certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, First Class, postage prepaid, at Shippensburg, Pennsylvania, on the 14th day of September, 2009, on the following: Clayton W. Davidson, Esq. McNEES WALLACE & NURICK LLC PA Attorney ID# 79139 100 Pine St P O Box 1166 Harrisburg PA 181-8-1166 Law Office Forest N. Myers Forest N. Myers, Esquire Co-Counsel for Defendant Supreme Court ID #18064 137 Park Place West, Shippensburg, PA 17257 Telephone: (717) 532 - 9046 Telefax: (717) 532 - 8879 Date: y - Imo-- a} Fw ;?'^ RY Gr Thp 2009 SEP 15 Pil 12: f-:) 8 CUPJ _ u . w?, ; t DEERE & COMPANY, Plaintiff vs. LEROY K. GORDON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-5127 Civil Term CIVIL ACTION - LAW DEERE & COMPANY'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS IN LIEU OF A LISTING FOR ARBITRATION Deere & Company ("Deere"), by and through its undersigned counsel, hereby files the following Answer to the Preliminary Objections of Defendant Leroy K. Gordon ("Gordon"), and avers the following: BACKGROUND 1. Admitted. 2.-6. Denied as stated. The Complaint is a document that speaks for itself, and any characterization or description inconsistent therewith is denied. 7. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. LACK OF JURISDICTION PURSUANT TO Pa.R.C.P. No. 1028(a)(1) 8. Deere incorporates paragraphs 1 through 7 of its Answer as if set forth in full. 9. Denied as stated. The Loan Agreement is a document that speaks for itself, and any characterization or description inconsistent therewith is denied. 10. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. 11. Denied as stated. Prior to the filing of the Complaint, Gordon did not elect to arbitrate the dispute that gave rise to the filing of the above-captioned action. Deere was first notifiedof Gordon's desire to arbitrate the current dispute when Gordon filed Preliminary Objections to Deere's Complaint. The parties are currently in the process of listing the current dispute for arbitration with the American Arbitration Association. To the extent Gordon fails to timely list this dispute for arbitration, such failure should be considered a waiver by Gordon of any aright to arbitrate this dispute. 12. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. WHEREFORE, Deere & Company requests that Defendant's Preliminary Objections be overruled, and that judgment be entered in Plaintiffs favor and against Defendants. AGREEMENT FOR ALTERNATIVE DISPUTE RESOLUTION PURSUANT TO Pa.R.C.P. No. 1028(a)(6) full. 13. Deere incorporates paragraphs 1 through 12 of its Answer as if set forth in 14. Denied as stated. The Loan Agreement is a document that speaks for itself, and any characterization or description inconsistent therewith is denied. 15. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. 16. Denied. Paragraph 11, above, is incorporated herein by reference. 2 17. Denied. Other than through his Preliminary Objections, Deere cannot know if Gordon would like to elect arbitration of the current dispute between the parties. By way of further response, paragraph 11, above, is incorporated herein by reference. 18. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. WHEREFORE, Deere & Company requests that Defendant's Preliminary Objections be overruled, and that judgment be entered in Plaintiff's favor and against Defendants. McNEE " ALLACE & NURICK LLC Date: October 27, 2009 By Clayton W. Davidson PA I.D. No. 79139 Dana M. Windisch PA I.D. No. 208718 McNees Wallace & Nurick LLC 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 260-1678 (Direct Fax) (717) 232-8000 (Phone) cdavidson@mwn.com Attorneys for Plaintiff, Deere & Company 3 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served via first-class mail, postage prepaid, upon the following: Forest N. Myers, Esquire Law Office of Forest N. Meyers 137 Park Place West Shippensburg, PA 17257 Date: October 27, 2009 Dana M. Windisch Attorneys for Plaintiff, Deere & Company 4 F(iLED-rit SRC"'En ASV ne ?C LD'` ,oT?-1",NTTA T 2009 OCT 28 P{ i 12: 5 CUIM J'?? 1 DEERE & COMPANY, IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, :PENNSYLVANIA vs. NO. 09 - 5127 Civil Term LEROY K. GORDON, :Civil Action -Law Defendant PRACIPE TO WITHDRAW PRELIMINARY OBJECTIONS TO: Honorable Curtis Long, Prothonotary Please withdraw the Preliminary Objections filed in the above-captioned matter. Law Office Forest N. Myers Date: ~ 1-12 - 7~Wg ,--~~ ~ Forest N. Myers, Esquire Counsel for Defendant Supreme Court ID #18064 137 Park Place West, Shippensburg, PA 17257 Telephone: (717) 532 - 9046 Telefax: (717) 532 - 8879 DEERE & COMPANY, IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, :PENNSYLVANIA vs. NO. 09 - 5127 Civil Term LEROY K. GORDON, :Civil Action -Law Defendant CERTIFICATE OF SERVICE I, Forest N. Myers, Esquire, certify that a true and correct copy of the foregoing document was served by depositing the same in the United States Mail, First Class, postage prepaid, at Shippensburg, Pennsylvania, on the 12th day of November, 2009, on the following: Dana Windisch, Esq. McNEES WALLACE & NURICK LLC PA Attorney lD# 79139 100 Pine St P O Box 1166 Harrisburg PA 181-8-1166 Law Office Forest N. Myers Forest N. Myers, Esquire Counsel for Defendant Supreme Court ID #18064 137 Park Place West, Shippensburg, PA 17257 Telephone: (717) 532 - 9046 Telefax: (717) 532 - 8879 Date: Il- 1'2-- 709 .. ~_ ~. ._. __ q, ,_ - _. -, ~~~ tt ~ ~ ~ - ' k i,. ~ ~~, , ~' ,_ _~, ~, DEERE & COMPANY, Plaintiff vs. LEROY K. GORDON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-5127 Civil Term CIVIL ACTION -LAW PRAECIPE TO DISCONTINUE WITHOUT PREJUDICE TO THE PROTHONOTARY: cn ~ -:, c- ~ -~, K_u. ~ ~ ~, ,-~, ~. _ _ `~. ' , ;--, ~~, ! ~ ~ ja , .~ - ~, Y - -- :_ " ; ~_~ c_ c..~ ~ ~' :~ c.: Please mark the Complaint in the above-captioned proceeding discontinued without prejudice. Date: July 6, 2010 McNEES WALLACE & NURICK LLC By: Clayton W. Davidson PA Attorney I.D. 79139 Dana M. Windisch PA Attorney I.D. 208718 100 Pine Street - P.O. Box 1166 Harrisburg, PA 17108-1166 Direct Fax: 717-260-1678 Phone: 717-232-8000 cdavidson@mwn.com Attorneys for Plaintiff, Deere & Company CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served via first-class mail, postage prepaid, upon the following: Leroy Gordon 186 Booz Road Shippensburg, PA 17257 ~~ Dana M. Windisch Attorney for Plaintiff, Deere & Company Dated: July 6, 2010