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HomeMy WebLinkAbout09-5378l? COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SUSQUEHANNA BANK, :DOCKET NO. Oq - W78 0-tvi(Tew successor in interest to CommunityBanks, Plaintiff V. : CONFESSION OF JUDGMENT GREGORY R. WAREHIME, Defendant PREVIOUSLY ASSIGNED TO: N/A CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against the Defendant as follows: a. Principal $47,928.99 b. Interest to July 17, 2009 $ 778.36 C. Late Charges $ 50.00 d. Satisfaction Fees $ 85.00 TOTAL: $48,842.35 plus interest at the rate of $5.99112 per day, and reasonable attorneys' fees and expenses incurred by the Plaintiff to be determined at hearing, and other expenses, fees and costs to which the Plaintiff may be entitled to be determined at hearing, through the date of payment, including on and after the date of entry of judgment on the Complaint. Respectfully submitted, McNees Wallace & Nurick LLC Date: July, 2009 By: uire Shuff, (24848 Supreme Court ID. Julia P. Coelho, Esquire Supreme Court ID #210039 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff, Susquehanna Bank RLEC ?J1:f-ICE OF THE 2009 AUG -3 Pr 9'2: 16' r It I COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION ?/1? SUSQUEHANNA BANK, DOCKET NO. 0-!53,7s 0,1vi lTe+ successor in interest to CommunityBanks, Plaintiff V. CONFESSION OF JUDGMENT GREGORY R. WAREHIME, Defendant PREVIOUSLY ASSIGNED TO: N/A COMPLAINT FOR CONFESSION OF JUDGMENT UNDER RULE 2951 1. The Plaintiff, Susquehanna Bank, successor in interest to CommunityBanks ("Plaintiff") is a Pennsylvania financial institution with an office located at 1570 Manheim Pike, Lancaster, PA 17601. 2. The Defendant, Gregory R. Warehime ("Defendant"), is an adult individual whose last known address is 94 Parsonage Street, Newville, PA 17241 or 154 Lawrence Lane, Carlisle, PA 17103. 3. The Defendant executed and delivered to the Plaintiff a Guaranty and Suretyship Agreement dated January 10, 2006 ("Guaranty"), a true and correct photostatic reproduction of the original of which is attached hereto as Exhibit "A" and made a part hereof. 4. The Defendant executed and delivered to the Plaintiff an Explanation of Rights- Confession of Judgment dated January 10, 2006 ("Explanation of Rights"), a true and correct photostatic reproduction of the original of which is attached hereto as Exhibit "B" and made a part hereof. 5. The Defendant executed and delivered to the Plaintiff a Guarantor's Certificate and Affidavit of Business Purpose dated January 10, 2006 ("Certificate"), a true and correct photostatic reproduction of the original of which is attached hereto as Exhibit "C" and made a part hereof. 6. Under the Guaranty, the Defendant guaranteed to the Plaintiff the payment of all amounts due to the Plaintiff by Comfort Mechanical, LLC ("Debtor") under the Master Promissory Note dated January 10, 2006 ("Note") for a Loan ("Loan") in the original principal amount of Fifty Thousand Dollars ($50,000.00). A true and correct photostatic reproduction of the original Note is attached hereto as Exhibit "D" and made a part hereof. 7. The Plaintiff has demanded payment in full of the Loan, and the Debtor and the Defendant are in default of their obligations to the Plaintiff for failure to make payment to the Plaintiff as required in the Note and/or Guaranty. A copy of the Plaintiffs demand for payment is attached hereto as Exhibit "E" and made a part hereof. 8. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 9. There has not been any assignment of the Guaranty or the Note. 10. Judgment has not been entered on the Guaranty in any jurisdiction. 11. An itemized computation of the amount due to the Plaintiff from the Defendant under the Guaranty as of July 17, 2009, is as follows: a. Principal $47,928.99 b. Interest $ 778.36 C. Late Charges $ 50.00 d. Satisfaction Fees $ 85.00 TOTAL: $48,842.35 plus interest at the rate of $5.99112 per day, and reasonable attorneys' fees and expenses incurred by the Plaintiff to be determined at hearing, and other expenses, fees and costs to which the Plaintiff may be entitled to be determined at hearing, through the date of payment, including on and after the date of entry of judgment on this Complaint. WHEREFORE, the Plaintiff, Susquehanna Bank, demands judgment against the Defendant, Gregory R. Warehime, in the amount of Forty-Eight Thousand Eight Hundred Forty- Two and 35/100 Dollars ($48,842.35), plus interest at the rate of $5.99112 per day, and reasonable attorneys' fees and expenses incurred by the Plaintiff to be determined at hearing, and other expenses, fees and costs to which the Plaintiff may be entitled to be determined at hearing, through the date of payment, including on and after the date of entry of judgment on this Complaint. Respectfully submitted, McNees Wallace & Nurick LLC r Date: July ?t, 2009 By: ZZ/ offr . Shu f, Esquire reme Court ID #24848 Julia P. Coelho, Esquire Supreme Court ID #210039 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff, Susquehanna Bank COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SUSQUEHANNA BANK, DOCKET NO. successor in interest to CommunityBanks, : Plaintiff V. CONFESSION OF JUDGMENT GREGORY R. WAREHIME, Defendant PREVIOUSLY ASSIGNED TO: N/A VERIFICATION I, Ernest Moore, Assistant Vice President of Susquehanna Bank, being authorized to do so on behalf of Susquehanna Bank, hereby verify that the statements made in the foregoing Complaint are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. SUSQUEHANNA BANK Date: July \, 2009 By: f,,,,,,, 'Ernest Moore Assistant Vice President GUARANTY AND SURETYSHIP AGREEMENT TkIIS GUARA TY AND SURETYSHIP AGREEMENT (hereafter "Guaranty") is made as of this day of , 2006, by GREGORY R. WAREHIME (hereafter "Guarantor"), to and for the benefit of C TYBANKS, a Pennsylvania banking institution, (hereafter 'Bank"), with respect to the obligations of Comfort Mechanical, LLC., a Pennsylvania limited liability company (hereafter "Borrower"). WHEREAS, the Borrower has requested the Bank provide a certain credit accommodation to the Borrower, particularly a loan. in the principal amount of FIFTY THOUSAND DOLLARS ($50,000.00) (the "Loan"). The Bank has agreed to provide the requested credit accommodation to the Borrower, but only if the Guarantor gives the guaranty provided in this Guaranty. The Guarantor is willing to provide this Guaranty so as to induce the Bank to provide the requested credit accommodation to the Borrower. NOW, THEREFORE, in consideration of these premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as an inducement for the Bank to make the Loan, the Guarantor gives the following guaranty and indemnification to and for the benefit of the Bank. Section 1. The Guaranty. The Guarantor guarantees to the Bank: (a) payment of any and all sums now or hereafter due and owing to the Bank by the Borrower as a result of or in connection with any and all existing or future indebtedness, liability, or obligation of every kind, nature, type, and variety owed by the Borrower to the Bank from time to time, as a result of or in connection with any credit accommodation, loan guaranty, overdraft, or other agreement or transaction, whether direct or indirect, absolute or contingent, primary or secondary, joint or several, unconditional or conditional, known or unknown, liquidated or unliquidated, including all renewals, extensions, substitutions, and modifications thereof, no matter when or how created, arising, evidenced, or acquired, and whether or not presently contemplated or anticipated and, including, but not limited to, all amounts of principal, interest, penalties, reimbursements, advancements, escrows, collection expenses, and fees; and (b) the timely, complete, continuous, and strict performance and observance by the Borrower of any and all of the terms, covenants, agreements and conditions contained in any and all existing or future documents, instruments, agreements, and writing of every kind, nature, type, and variety which evidence, reflect, embody, or give rise to any and all existing and future indebtedness, liabilities, and obligations of any kind of the Borrower to the Bank. As used in this Guaranty, the term "Obligations" shall refer to the obligations of payment, performance and indemnification which the Guarantor has undertaken and assumed pursuant to this Guaranty. This is a continuing guaranty, and all liabilities to which it applies or may apply shall be conclusively deemed to have been created in reliance hereon. Section 2. Nature Of Guaranty Acceleration. This Guaranty is irrevocable, absolute and unconditional, and is a suretyship agreement and guaranty of payment, and not just a guaranty of collection. The Bank shall be authorized to proceed against the Guarantor and enforce the terms and conditions of this Guaranty upon the occurrence of any of the following events: (i) the occurrence of a default or breach by the Borrower, after the expiration of any applicable notice and cure periods, under any loans, guaranties or other transactions between the Bank and the Borrower, or pursuant to any documents or agreements relating thereto; (ii) the failure of the Borrower to satisfy, after the expiration of any applicable notice and cure periods, any duty or obligation of any kind owed from time to time by the Borrower to the Bank; (iii) the violation by the Guarantor of any term or condition set forth in this Guaranty; (iv) the death of the Guarantor; (v) the filing of a petition or other pleading seeking the entry of a decree or order for relief by a court having jurisdiction against or with respect to the Guarantor or the Borrower, or any other guarantor of the Borrower's obligations to the Bank, in an involuntary case under the federal bankruptcy laws or any state insolvency or similar laws ordering the liquidation of the Guarantor or the Borrower, or any other guarantor of the Borrower's obligations, or a reorganization of the Guarantor or the Guarantor's business and affairs or of the Borrower or the Borrower's business and affairs, or of the business and affairs of any other guarantor of the Borrower's obligations, or the appointment of a receiver, liquidator, assignee, custodian, trustee, or similar official for the Guarantor or the Guarantor's property or for the Borrower or any of the Borrower's property or for any other guarantor of the Borrower's obligations or any other guarantor's property and the failure to have such petition or other pleading denied or dismissed within sixty (60) calendar days from the date of filing; (vi) the commencement by the Guarantor or the Borrower or any other guarantor of the Borrower's obligations, of a voluntary case under the federal bankruptcy laws or any state insolvency or similar laws or the consent by the Guarantor or the Borrower, or any other guarantor of the Borrower's obligations, to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, or similar official for the Guarantor of any of the Guarantor's property or for the Borrower or any of the Borrower's property, or for any other guarantor or for any other guarantor's property, or the making by the Guarantor or by the Borrower, or any other guarantor of the Borrower's obligations, of an assignment for the benefit of creditors, or the failure by the Guarantor generally to pay the Guarantor's debts as the debts become due or the failure by the Borrower generally to pay the Borrower's debts as the debts become due or the failure by any other guarantor of the Borrower's obligations generally to pay its debts as those debts become due. Section 3. Representations and Warranties. The Guarantor hereby represents and warrants that: (a) The execution and delivery of this Guaranty will not violate any contract, agreement, statute, regulation or order applicable to Guarantor; and (b) There is no litigation, proceeding or investigation, pending or threatened, which would have an adverse affect on the ability of Guarantor to perform under this Guaranty. Section 4. Collateral. In the event that the Bank shall in good faith determine the need, the Bank shall have the right to require Guarantor to deliver to the Bank, as security for the liabilities hereunder, collateral security, original or additional, satisfactory to the Bank. Section 5. Bank Need Not Pursue Rights Against Borrower, Any Guarantor, Or Collateral. The Bank shall be under no obligation to pursue the Bank's rights against the Borrower or any other guarantor or any of the Borrower's real or personal property or any other guarantor's real or personal property b efore p ursuing the B ank's r ights a gainst t he G uarantor, and the B ank n eed n of f oreclose o r enforce any security interests or mortgage liens which may have been granted or created in any of the Loan Documents before enforcing the terms of this Guaranty against the Guarantor. Section 6. Accuracy of Representations. The Guarantor warrants that all of the Guarantor's representation and those of the Borrower in securing and/or maintaining any credit accommodation from the Bank, and as stated in the Loan Documents are true and correct and not misleading, and the Guarantor agrees to indemnify the Bank from any loss or expense as a result of any representation or statement of the Guarantor or of the Borrower being false, incorrect, or misleading. Section 7. Rights of Bank to Deal With Borrower, Guarantor, And Collateral. The Guarantor hereby assents to any and all terms and agreements between the Bank and the Borrower or between the Bank and any person, who has guaranteed in whole or in part the payment or performance of the Borrower's obligations, and all amendments and modifications thereof, whether presently existing or hereafter made and whether oral or in writing. The Bank may, without compromising, impairing or diminishing, or in any way releasing the Guarantor from the Guarantor's Obligations hereunder and without notifying or obtaining the prior approval of the Guarantor at any time or from time to time: (a) waive or excuse a default or defaults by the Borrower of any person who has guaranteed in whole or in part any of the Borrower's obligations or delay in the exercise by the Bank of any or all of the Bank's rights or remedies with respect to such default or defaults; (b) grant extensions of time for payment or performance by the Borrower or any person who has guaranteed in whole or in part any of the Borrower's obligations; (c) release, substitute, exchange, surrender, or add collateral of the Borrower or any person who has guaranteed in whole or in part any of the Borrower's obligations, or waive, release, or subordinate, in whole or in part, any lien or security interest held by the Bank on any real or personal property securing payment or performance, in whole or in part, of the Borrower's obligations; (d) release the Borrower or any person who has guaranteed in whole or in part any of the Borrower's obligations; (e) apply payments made by the Borrower, or by any person who has guaranteed, in whole or in part, any of the Borrower's obligations to any sums owed by the Borrower to the Bank, in any order, or manner, or to any specific account or accounts, as the Bank may elect; (f) modify, change, renew, extend, or amend, in any respect the Bank's agreement or understanding with the Borrower or any person who has guaranteed in whole or in part any of the Borrower's obligations or any document, instrument, or writing, embodying, or reflecting t he s ame. S hould the B ank o btain the p rior c onsent o r approval, o r g ive prior n otice to Guarantor, with respect to any of the above actions, the Bank will not be required to do so in future cases nor be considered to have altered the terms of this Section in any way. Section 8. Waivers By The Guarantor. The Guarantor hereby irrevocably and absolutely waives: (a) any and all notices whatsoever with respect to this Guaranty or with respect to any of the Borrower's obligations to the Bank, including, but not limited to, notice of: (i) the Bank's acceptance hereof or the Bank's intention to act, or the Bank's action, in reliance hereon, (ii) the present existence or future i ncurring of any of the Borrower's obligations or any terms or amounts thereof or any change therein, (iii) any default by the Borrower or any surety, pledgor of security, guarantor or other person who has guaranteed or secured in whole or in part the Borrower's obligations, (iv) the obtaining or release of any guaranty or surety agreement (in addition to this Guaranty), pledge, assignment, or other security for any of the Borrower's obligations, (v) the sale, liquidation or disposition of any collateral securing the Borrower's obligations to the Bank; and (vi) protest or. dishonor (b) any objections as to the commercial reasonableness of any acts taken or not taken by the Bank in the sale, liquidation, or disposition of any collateral securing the Borrower's obligations to the Bank; (c) presentment, diligence, protest and demand for payment of any sum due from the Borrower or any person who has guaranteed in whole or in part any of the Borrower's obligations and protest of nonpayment; (d) demand for performance by the Borrower or any person who has guaranteed in whole or in part any of the Borrower's obligations. Section 9. Collection Expenses. The Guarantor shall pay to the Bank, upon demand, all costs and expenses, including reasonable attorneys' fees and accrued interest (whether or not suit is filed or judgment confessed), that may be incurred by the Bank in attempting to cause satisfaction of the Guarantor's liability under this Guaranty, or to otherwise enforce the Guarantor's Obligations. Section 10. CONFESSION OF JUDGMENT. GUARANTOR HEREBY AUTHORIZES AND EMPOWERS IRREVOCABLY THE PROTHONOTARY OR ANY CLERK OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR AND TO CONFESS JUDGMENT AGAINST GUARANTOR IN FAVOR OF THE HOLDER OF THE LOAN AT ANY TIME AFTER A DEFAULT AND AFTER THE EXPIRATION OF ANY APPLICABLE CURE PERIODS, AS OFTEN AS NECESSARY UNTIL ALL LIABILITIES HAVE BEEN PAID IN FULL, AS OF. ANY TERM, FOR ALL AMOUNTS OWING (WHETHER OR NOT THEN DUE) UNDER THE LOAN, TOGETHER WITH COSTS OF LEGAL PROCEEDINGS AND A REASONABLE ATTORNEYS' FEE FOR COLLECTION WITH RELEASE OF ALL ERRORS, WAIVER OF APPEALS, AND WITHOUT STAY OF EXECUTION. GUARANTOR HEREBY WAIVES ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAWS OR RULES OF COURT NOW OR HEREAFTER IN EFFECT. The preceding p aragraph sets forth a w arrant o f a ttomey t o c onfess judgment a gainst G uarantor. I n granting this warrant of attorney to confess judgment against Guarantor, Guarantor hereby knowingly, intentionally, voluntarily, and, with opportunity for advice of separate counsel, unconditionally waives any and all rights Guarantor has or may have to prior notice and an opportunity for hearing under the respective constitutions and laws of the United States and the Commonwealth of Pennsylvania. Section 11. Indemnification. In the event any real or personal property secures either any of the sums now or hereafter owed by the Borrower to the Bank or the Obligations and the Bank acquires the same after a foreclosure sale as to real property or a public auction sale as to personal property, Guarantor agrees to indemnify and hold the Bank harmless from any loss, cost, or expense which the Bank may sustain as a result of: (a) selling the real or personal property so acquired for less than the total sums owed by the Borrower to the Bank or the Obligations, as the case may be, provided, however, that any such sale by the Bank is done in a commercially reasonable manner or (b) any action brought against the Bank on the ground that the consideration paid by the Bank for the real or personal property was not "fair equivalent value," within the contemplation of the United States Bankruptcy Code, as amended, or any applicable state fraudulent conveyance act. Section 12. Invalidity Of Any Part. If any provision or part of any provision of this Guaranty shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions or the remaining part of any effective provisions of this Guaranty and this Guaranty shall be construed as if such invalid, illegal, or unenforceable p rovision o r p art t hereof h ad never b een c ontained h erein, b ut o my t o the e xtent of its invalidity, illegality, or unenforceability. Section 13. Financial Statements. The Guarantor shall provide the Bank with financial statements for the Guarantor upon execution hereof and within ninety (90) days from the close of each calendar year. As used herein, financial statements shall include a statement of assets and liabilities and any variation thereof or other specific statements requested by the Bank in form and substance acceptable to the Bank. The Guarantor shall also provide the Bank with a completed copy of its federal income tax return within thirty (30) day after the same has been filed with the Internal Revenue Service. The costs of supplying the financial statements and tax returns shall be paid by the Guarantor. Section 14. Nature Of Guarantor's Liability, Remedies Cumulative. The liability of the Guarantor under this Guaranty, to the extent herein provided, is absolute and unconditional, without regard to the liability of any other person, and shall not in any manner be affected by reason of any action taken or not taken by the Bank, which action or inaction is herein consented and agreed to, nor by the partial or complete unenforceability or invalidity of any other guaranty or surety agreement, pledge, assignment or other security for any of the Borrower's obligations to the Bank. No delay in making demand on the Guarantor for satisfaction of the Guarantor's liability hereunder shall prejudice the Bank's right to enforce such satisfaction. All of the Bank's rights and remedies shall be cumulative and any failure o f the B ank t o e xerc ise any r ight h ereunder shall n of b e c onstrued a s a w aiver o f t he r ight t o exercise the same or any other right at any time, and from time to time, thereafter. The liability of the Guarantor hereunder shall be joint and several with the liability of any other persons who have guaranteed the obligations of the Borrower to the Bank. If more than one Guarantor has executed this guaranty, the liability of each signatory shall be joint and several. 4 Section 15. Effective Date. This Guaranty shall be effective as of the stated date hereof, independent of the date of execution or delivery. Section 16. Binding Nature. This Guaranty shall inure to the benefit of and be enforceable by the Bank and the Bank's successors and assigns and any other person to whom the Bank may grant an interest in the Borrower's obligations, and shall be binding upon and enforceable against the Guarantor and the Guarantor's respective personal representatives, successors and assigns. This Guaranty may only be terminated in writing by the signature of the Bank. Section 17. Assi aim bility. This Guaranty may be assigned by the Bank, or any other holder at any time or from time to time. Section 18. Choice Of Law: Consent To Jurisdiction. This Guaranty shall be construed, interpreted, and enforced in accordance with the internal laws of the Commonwealth of Pennsylvania. The Guarantor hereby consents to the jurisdiction and venue of the courts of the Commonwealth of Pennsylvania in any action brought to enforce, construe or interpret this Guaranty. Section 19. Tense, Gender, Defined Terms, Caption. As used herein, the plural shall refer to and include the singular, and the singular, the plural and the use of any gender shall include and refer to any other gender. All captions are for the purpose of convenience only. IN WITNESS WHEREOF, and intending to be legally bound, the Guarantor has duly executed this Guaranty under seal. WITNESS: L'p o U (Type Name) THE GUARANTOR: gory R. Warehime EXPLANATION OF RIGHTS-CONFESSION OF JUDGMENT 1. On the date hereof, GREGORY R. WAREHIME ("Guarantor"), executed a guaranty agreement in the original principal sum of $50,000.00 ("Guaranty"), in favor of COMMUNITYBANKS, its successors and assigns ("Bank") guaranteeing the payment and performance of the obligations as defined therein. The obligations include loan proceeds issued or to be issued by Bank to or for the benefit of Comfort Mechanical, LLC., a Pennsylvania limited liability company. Guarantor understands clearly and specifically that by signing the Guaranty, which contains a confession of judgment clause: (a) Guarantor authorizes Bank to enter a Judgment against Guarantor in Bank's favor, after the occurrence of an event of default or a demand for payment and after any applicable notice and cure period, which will give Bank a lien upon any real estate which the Guarantor may own; (b) Guarantor gives up the right to any notice or opportunity to be heard prior to the entry of such Judgment on the records of the court; (c) Guarantor agrees that Bank can enter the Judgment after default as defined in the Guaranty or in any other loan documents as defined therein (collectively the "Loan Document") executed by Guarantor simultaneously herewith; (d) Guarantor subjects Guarantor's property, real, personal and mixed, to execution and sheriffs sale, pursuant to the Judgment, prior to proof of non-payment or other default on Guarantor's part; (e) Guarantor will be unable to challenge the Judgment, should Bank enter it, except by proceeding to seek relief from or to open or to strike the Judgment, and such a proceeding will result in attorneys' fees and costs which the Guarantor will have to pay; (f) Guarantor gives up the right to require Bank to present a sworn document setting forth in non-conclusory terms the basis for its claim before obtaining a writ of garnishment or a writ of attachment or a writ of execution; (g) Guarantor agrees that the writ of garnishment or writ of attachment or writ of execution may be issued without notice and without the necessity of a review and approval by an official vested with requisite discretion; and (h) Guarantor gives up the right or opportunity for a prompt hearing after seizure of or execution or levy on the Guarantor's property, at which hearing Bank must demonstrate at least the probable validity of its claim and that Guarantor voluntarily, intelligently and knowingly gave up Guarantor's constitutional right to notice and hearing prior to entry of the Judgment. 2. Guarantor knows and understands that it is this instrument and the confession of judgment clause in the Guaranty which gives Bank the rights and benefits enumerated in subparagraphs (a) through (h) of paragraph 1 above. IF GUARANTOR DOES NOT SIGN THIS INSTRUMENT AND THE GUARANTY WHICH CONTAINS THE CONFESSION OF JUDGMENT CLAUSE GUARANTOR UNDERSTANDS THAT GUARANTOR WOULD HAVE THE FOLLOWING: (a) the right to have notice and an opportunity to be heard prior to the entry of the Judgment; (b) the right to have the burden of proving default rest upon Bank before Guarantor's property can be exposed to levy, attachment, garnishment or execution; (c) the right to avoid the additional expense of attorneys' fees and costs incident to seeking relief from or opening and striking off a judgment; (d) the right to require Bank to present a sworn document setting forth in non-conclusory terms the basis of its claim before Bank obtains a writ of garnishment or a writ of attachment or writ of execution; (e) the right to condition the issuance of a writ of garnishment or a writ of attachment or a writ of execution on notice and review and approval by an official vested with requisite jurisdiction; (f) the opportunity for or right to a prompt hearing after seizure of or levy or execution of Guarantor's property, at which hearing Bank must demonstrate the probable validity of its claim and that Guarantor voluntarily, intelligently and knowingly gave up Guarantor's constitutional right to notice and hearing prior to entry of Judgment. 3. Fully, completely and knowingly understanding these rights which Guarantor has prior to signing the Guaranty and this instrument and clearly aware that these rights will be given up, waived, relinquished and abandoned if Guarantor signs the Guaranty and this instrument, Guarantor nevertheless freely and voluntarily chooses to sign the Guaranty and this instrument, Guarantor's intentions being to give up, waive, relinquish and abandon its known rights (as described in paragraph 2 above), and subject himself or herself to the circumstances described in paragraph 1 above. 4. Guarantor acknowledges that (a) the Guaranty and this instrument have been executed in a commercial transaction for business purposes; (b) at all times material hereto Guarantor was represented by counsel in connection with the execution of the Guaranty and every other Loan Document, and in particular the Guaranty and this instrument; and (c) Guarantor reviewed the Guaranty and this instrument with Guarantor's attorney before signing them. 5. Whenever the context of this instrument requires, all terms used in the singular will be construed in the plural and vice versa; and each gender will include each other gender. GUARANTOR HAS READ THIS ENTIRE FORM. GUARANTOR FULLY UNDERSTANDS ITS CONTENTS ND TENDS TO BE LEGALLY BOUND HEREBY. Dated this day of , 2006. WITNESS: i % C-) U Gregory, arehime (Type Name) 2 GUARANTOR'S CERTIFICATE AND AFFIDAVIT OF BUSINESS PURPOSE For the purpose of providing a guaranty for a business loan within the meaning of Pennsylvania Act No. 6 of 1974 (41 P.S. 101 et seq.) from COMMUNITYBANKS to COMFORT MECHANICAL, LLC., a Pennsylvania limited liability company, the undersigned hereby makes the following statement: that the undersigned is an individual; and 2. that the principal amount of said loan is $50,000.00; and 3. that the funds shall be utilized in said business enterprise; and 4, that the undersigned is a guarantor; The undersigned hereby further certifies as follows: 1. All federal, state and local taxes assessed against the undersigned or any of my properties and payable by the undersigned are currently paid, and no tax liens or unsettled tax claims against the undersigned or any of my properties currently exist; 2. There exists n o p ending o r threatened 1 itigation a gainst the undersigned o r any o f my properties; 3. The guaranty does not violate any agreement(s), court order(s), or other binding obligation to which the undersigned is a party or by which the undersigned or any of my properties is/are bound or affected104day Sworn or affirmed this of , 2006, under penalty of perjury. Warehime Affirme o and ubscribed before me this A5 ctw of 0!". Notary Public My commission expires: OMMONWEALT OF PENNSYL y Notarial seal Melissa S. Kiner, Notary Pu South Middleton Twp.. Cumberland My Commission Expires Feb. of Notaries Member, Pennsylvania Association 1+ `rte ?l vAN A blic County 3, 2009 Loan #109118141 'MASTER PROMISSORY NOTE $50,000.00 to , 2006 FOR VALUE RECEIVED, and intending to be legally bound hereby, COMFORT MECHANICAL, LLC., a Pennsylvania limited liability company (hereinafter "Maker"), promises on demand to pay to the order of COMIVIUNITYBANKS, a Pennsylvania banking institution (hereinafter "Bank"), or any subsequent holder hereof, the principal amount of FIFTY THOUSAND DOLLARS ($50,000.00), in lawful money of the United States, together with interest at the rate as hereinafter provided and any additional charges or funds advanced hereunder, at the offices of the Bank or such other address as the Bank may designate by written notice to the Maker. INTEREST-The unpaid principal balance shall bear interest at the following rate per annum: The floating Base Rate plus 1.25 percent. Interest shall be calculated by multiplying the actual daily principal balances by a factor equal to the rate of interest divided by 3 60 days and multiplying that quotient by the number of days in the current interest period. The current interest period shall be equal to the actual number of days between the previous payment due date and the current payment due date. Accrued interest shall be payable monthly when billed by Bank. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by stated maturity, demand or acceleration) or, if earlier, when such principal balance is actually paid to Bank. The term "Base Rate" (which is not necessarily the lowest rate of interest charged by Bank) is defined as that rate of interest so designated and listed as the base rate by CommunityBanks. Changes in the Base Rate shall be effective as of the date the Base Rate changes. Interest shall accrue on each disbursement hereunder from the date such disbursement is made by Bank. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Maker. ADVANCES-The Maker shall be liable for only so much of the above principal amount as shall be equal to the total of amounts advanced to or for the Maker by the Bank from time to time less all payments made by or for the Maker and applied by the Bank to principal and for interest on each such advance, as shown on the Bank's books and records which, shall constitute prima facie evidence of the amount owed. Such books and records of Bank shall be deemed correct, except to the extent shown by Maker to be manifestly erroneous. NOTE NOT A COMMITMENT TO LEND-Maker acknowledges and agrees that no provision hereof, and no course of dealing by Bank in connection herewith, shall be deemed to create or shall imply the existence of any commitment or obligation on the part of Bank to make advances hereunder. Bank shall have no such commitment or obligation except in accordance with such terms and conditions as shall have been expressly agreed to by the Bank by currently effective written agreement. Otherwise, each advance hereunder shall be made solely at the Bank's discretion. COLLATERAL-As security for all indebtedness to Bank now or hereafter incurred by Maker, under this Note or otherwise, Maker grants Bank a lien upon and security interest in any personal property of Maker now or hereafter in Bank's possession and in any deposit balances now or hereafter held by Bank for Maker's account. Such liens and security. interests shall be independent of Bank's right of setoff. Additionally, to secure the performance of this and all other obligations to Bank of Maker or any other parties to this Note, whether now existing or hereafter incurred, Maker grants to Bank a security interest in the collateral described below, complete with all present and future attachments, accessories and replacements of all or any parts thereof and all additions thereto or substitutions therefor, and in any insurance policies thereon, and dividends, distributions and other rights on or with respect to, and the proceeds thereof (all of which is referred as "Collateral") with authority to collect, sell, transfer and rehypothecate. In case the market value of the Collateral or any part thereof shall suffer any decline, Maker agrees upon demand of the Bank to deliver to and pledge with the Bank additional collateral as the Bank shall in its discretion require. Description of Collateral: First priority security interest in all business assets now owned and hereafter acquired. LATE CHARGE-If any payment hereunder is not paid when due, and continues unpaid for a period of ten (10) days thereafter, Maker agrees to pay to Bank as a late charge an amount computed at a rate of five percent (5%) of such past due amount. The late charge shall be in addition to any interest due. Notwithstanding the foregoing, in no event shall any late charge be less than fifty dollars ($50.00). ACCELERATION WITHOUT DEMAND-All indebtedness evidenced by this Note or accruing hereunder shall become immediately due and payable, without demand or notice, if Maker fails to make any interest payment billed hereunder, or upon the filing of any petition by or against Maker or any endorser, guarantor or surety of this Note, under any bankruptcy or insolvency law, or if any representation or warranty by Maker or any such endorser, guarantor or surety shall be false or misleading in any material respect, or if any deposit balance or other amount which may be held for the account of or owed to Maker by Bank shall be levied upon, garnished, attached or become subject to similar legal process. DEFAULT RATE OF INTEREST- If any payment hereunder is not paid when due, and continues unpaid for a period of ten (10) days thereafter ("Payment Default"), or upon the occurrence of any event of default under any other loan document between Maker and Bank ("Other Default"), and until such Other Default is cured, Bank may begin accruing interest on the unpaid principal balance at a rate per annum equal to the interest rate provided for herein, plus two percent (2%) ("Default Rate"), until Maker cures the Payment Default or Other Default, provided, however, that no interest shall accrue hereunder in excess of the maximum rate of interest then allowed by law. Maker agrees to pay such accrued interest on demand. The Default Rate is strictly a measure of liquidated damages to Maker and is not meant to be construed as a penalty. The authority of the Bank to accrue interest at the Default Rate is in addition to the other remedies upon default provided for in this Note. REPRESENTATIONS BY MAKER-Maker represents that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. Maker represents and warrants that the execution, delivery and performance under this Note are within Maker's powers, have been duly authorized by all necessary action by Maker's members, and are not in contravention of the terms of Maker's by-laws, or any resolution of its members. Maker warrants and represents that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Maker hereunder are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Maker is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance under this Note. SUBSEQUENT HOLDERS-In the event that any holder of this Note transfers this Note for value and in good faith, the Maker agrees that no subsequent holder of this Note shall be subject to any claims or defenses which the Maker may have against a prior holder, all of which are waived as to the subsequent holder, and that all subsequent holders shall have all of the rights of a holder in due course with respect to the Maker even though the subsequent holder may not qualify, under applicable law, absent this paragraph, as a holder in due course. REMEDIES-In the event that any payment due hereunder is not made when due, whether by demand, acceleration or otherwise, such nonpayment shall be a default hereunder and Bank may, immediately or any time thereafter, exercise any or all of its rights under any agreement or otherwise under applicable law against Maker, against any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, and in any collateral without regard to any marshalling requirements, and such rights may be exercised in any order and shall not be prejudiced by any delay in Bank's exercise thereof. The Bank may set off against all other obligations of Maker to Bank all money owed by the Bank in any capacity to Maker. All rights and remedies of Bank are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. This Note is the unconditional obligation of Maker and each additional person, if any, obligated for repayment of the indebtedness evidenced hereby agrees that Bank shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest, or against which it has right of setoff, or against any particular obligor. CONFESSION OF JUDGMENT-MAKER HEREBY AUTHORIZES AND EMPOWERS IRREVOCABLY THE PROTHONOTARY OR ANY CLERK OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR AND TO CONFESS JUDGMENT AGAINST MAKER IN FAVOR OF THE HOLDER OF THIS NOTE AT ANY TIME, REGARDLESS OF WHETHER A DEMAND OR ACCELERATION HAS BEEN MADE, AS OFTEN AS NECESSARY UNTIL ALL LIABILITIES HAVE BEEN PAID IN FULL, AS OF ANY TERM, FOR ALL AMOUNTS OWING (WHETHER OR NOT THEN DUE) UNDER THIS NOTE, TOGETHER WITH COSTS OF LEGAL PROCEEDINGS AND A REASONABLE ATTORNEYS' FEE FOR COLLECTION WITH RELEASE OF ALL ERRORS, WAIVER OF APPEALS, AND WITHOUT STAY OF EXECUTION. MAKER HEREBY WAIVES ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAWS OR RULES OF COURT NOW OR HEREAFTER IN EFFECT. The preceding paragraph sets forth a warrant of attorney to confess judgment against Maker. In granting this warrant of attorney to confess judgment against Maker, Maker hereby knowingly, intentionally, voluntarily, and, with opportunity for advice of separate counsel, unconditionally waives any and all rights Maker has or may have to prior notice and an opportunity for hearing under the respective constitutions and laws of the United States and the Commonwealth of Pennsylvania. MISCELLANEOUS-Any demand for payment or any notice required t o b e g iven b y B ank u rider t he provisions of this Note shall be effective as to each Maker when addressed to Maker and deposited in the mail, postage prepaid, for delivery by first class mail at Maker's billing address as it appears on Bank's records. Maker and any endorsers, sureties and guarantors waive presentment, dishonor, notice of dishonor, protest, notice of protest, and notice of any renewal, extensions, modification or change of time, manner, place or terms of payment. Neither the failure nor any delay on the part of Bank to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by Bank. All payments due under this Note are to be made in immediately available funds. If Bank accepts payment in any other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Bank. If any provision of this Note shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law of conflicts. This Note shall be binding upon each Maker and each additional endorser, guarantor, or surety and upon their personal representatives, heirs, successors and assigns, and shall benefit Bank and its successors and assigns. JUDICIAL PROCEEDINGS-Any suit, action, or proceeding, whether claim or counterclaim, brought or instituted by Maker or Bank, or any of their successors or assigns, on or with respect to this Note or the dealings of Maker or Bank with respect hereto, shall be tried only by a court and not by a jury. MAKER AND BANK HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WANE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. Further, Maker waives any right to claim or recover, in any such suit, action or proceeding, any special, exemplary, punitive or consequential damages or any damages other than, or in addition to, actual damages. MAKER ACKNOWLEDGES AND AGREES THAT THIS PARAGRAPH IS A SPECIFIC AND MATERIAL ASPECT OF THIS NOTE AND THAT THE BANK WOULD NOT ENTER INTO THE AGREEMENT IF THE WAIVERS SET FORTH IN THIS PARAGRAPH WERE NOT A PART OF THIS NOTE. GOVERNING LAW-This Note has been delivered to and accepted by the Bank and will be deemed to be made in the Commonwealth of Pennsylvania. This Note will be interpreted exclusively in accordance with the laws of the Commonwealth of Pennsylvania, excluding its conflict of laws rules. SUBMISSION TO JURISDICTION; SELECTION OF FORUM-Maker submits to the jurisdiction of the Courts of the Commonwealth of Pennsylvania, and the United States District Court for the Middle District of Pennsylvania. Maker further stipulates, acknowledges and agrees that venue is proper in any Court located in Pennsylvania and in the United States District Courts located in the Middle District of Pennsylvania and waives personal service of process and agrees that a summons and complaint commencing an action or proceeding in any such court shall be properly served and shall confer personal jurisdiction if served by registered or certified mail, return receipt requested, in accordance with the notice provision of this Note. Maker acknowledges and agrees that the venue provided above is the most convenient forum for both the Bank and Maker. Maker waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Note. IN WITNESS WHEREOF, Maker has executed and delivered this Note under seal as of the day and year first above written. ATTEST: C ORT MECHANICAL LC. By: J1W /A Grego , R. Warehime, Presi ent (Type Name and Title) 4 i?WN McNees Wallace & Nurick LLC attorneys at law GEOFFREY S. SHUFF DwCT DIAL: (717) 237-5439 DIRECT FAX: (717) 260-1743 E-MAIL ADDRESS: GSHUFF@MWN.COM June 1, 2009 CERTIFIED AND FIRST CLASS MAIL Comfort Mechanical, LLC 154 Lawrence Lane Carlisle, PA 17013 Gregory R. Warehime 94 Parsonage Street Newville, PA 17241 Glenn L. Warehime 154 Lawrence Lane Carlisle, PA 17013 RE: $50,000 Loan from CommunityBanks, now by merger Susquehanna Bank NOTICE OF DEFAULT AND DEMAND FOR PAYMENT Gentlemen: Please be advised that this firm represents the interests of Susquehanna Bank ('Bank") in repayment of the $50,000 loan made to Comfort Mechanical, LLC ('Borrower") on January 10, 2006. As you should know, the Borrower is in default of its obligations to the Bank for failure to make payment of the loan as and when due. As a result of the default, the entire outstanding amount of the loan, including all principal, accrued and unpaid interest and other amounts due in connection with the loan is immediately due and payable in full, and immediate payment of the entire amount of the obligations is hereby demanded. As of the date of this letter, the amount of the obligations to the Bank is as follows: Principal $ 48,118.99 Interest through June 1, 2009 $ 502.08 Late Charges $ 50.00 Other Charges $ 85.00 Attorneys' Fees $ 702.00 TOTAL $ 49,458.07 P.O. Box 1166. 100 PINE STREET- HARRISBURG, PA 17108-1166 • TEL: 717.232.8000 • FAX: 717.237.5300 • WWW.MWN.COM COLUMBUS, OH • STATE COLLEGE, PA • LANCASTER, PA • HAZLETON, PA • WASHINGTON, DC: Comfort Mechanical, LLC June 1, 2009 Page 2 Interest continues to accrue at the rate of $ 6.01487 per day, and late charges, attorneys' fees and costs, and other charges will continue to accrue until payment is made. Please contact Ernest Moore of the Bank within 10 business days after the date of this letter to make arrangements for payment of the entire amount of the obligations to the Bank. Mr. Moore may be contacted as follows: Ernest Moore Assistant Vice President Susquehanna Bank 1570 Manheim Pike, 2°d Floor Lancaster, PA 17604 717-735-9301 Neither this letter, nor anything contained herein, waives, limits or otherwise affects in any way the Bank's right to exercise and enforce its rights and remedies to collect your indebtedness to the Bank under the agreements and documents that evidence and/or secure the loan, or at law or in equity, all of which are reserved by the Bank, and remain in full force and effect, enforceable by the Bank at any time on and after the date of this letter. Thank you for your consideration of this matter. We look forward to receipt of payment in the immediate future, in order to avoid further time, effort and expense in the collection of your obligations to the Bank.. Very truly yours, McNEES WALLACE & NURICK LLC X? B )ey y he * S. Shuff GSS/gmk cc: Ernest Moore r- T E ,rARV a?. so Pb A Trv co !8!858 U4 aA97A Q Uokca, UaukncQ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SUSQUEHANNA BANK, : DOCKET NO. dq- 53,79 Ccvit7erf" successor in interest to CommunityBanks, Plaintiff V. CONFESSION OF JUDGMENT GREGORY R. WAREHIME, Defendant PREVIOUSLY ASSIGNED TO: N/A PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter our appearances on behalf of Plaintiff, Susquehanna Bank. Papers may be served at the address set forth below. Geoffrey S. Shuff, Esquire McNees Wallace & Nurick LLC 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Respectfully submitted, McNees Wallace & Nurick LLC Date: July -, 2009 By: S eme Court #24848 Julia P. Coel , Esquire Supreme Court ID #210039 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff, Susquehanna Bank V THE m y^?tY 7 0 0 9 A'UG --3 Foil 12: 16' Cwf' . '_r COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION !n? SUSQUEHANNA BANK, DOCKET NO. (R - 5378 0,-,vt ( l r"% successor in interest to CommunityBanks, Plaintiff V. CONFESSION OF JUDGMENT GREGORY R. WAREHIME, Defendant PREVIOUSLY ASSIGNED TO: N/A CERTIFICATE OF ADDRESSES I hereby certify that the precise address of Plaintiff, Susquehanna Bank, is 1570 Manheim Pike, Lancaster, PA 17601; and that the last known address of the Defendant, Gregory R. Warehime, is 94 Parsonage Street, Newville, PA 17241 or 154 Lawrence Lane, Carlisle, PA 17103. Respectfully submitted, McNees Wallace & Nurick LLC Date: July, 2009 By: G S. Shuf Esquire preme Cour?XD #24848 Julia P. Coel o, Esquire Supreme urt ID #210039 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff, Susquehanna Bank f'lLEI, a ee r Tr `^ `',')",cif ?? COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SUSQUEHANNA BANK, : DOCKET NO. ( - 53'7$ Cw?l 1 successor in interest to CommunityBanks, Plaintiff V. CONFESSION OF JUDGMENT GREGORY R. WAREHIME, Defendant PREVIOUSLY ASSIGNED TO: N/A AFFIDAVIT OF NON-MILITARY SERVICE TO THE PROTHONOTARY: I do certify, to the best of my knowledge, that the Defendant in the above-captioned action, Gregory R. Warehime, is not presently on active or non-active military status. Respectfully submitted, McNees Wallace & Nurick LLC Date: July A 2009 By: ' G S.oShu!K!squire urt #24848 Julia P. Coelh , Esquire Supreme Co 1D #210039 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff, Susquehanna Bank PIR 2009 UG `3 Nil i2= 16 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SUSQUEHANNA BANK, : DOCKET NO. CR - 5378 0'.1vitTerk successor in interest to CommunityBanks, Plaintiff : V. : CONFESSION OF JUDGMENT GREGORY R. WAREHIME, Defendant PREVIOUSLY ASSIGNED TO: N/A NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS TO: Gregory R. Warehime, Defendant A judgment in the amount of $48,842.35, plus interest, other expenses, fees and costs has been entered against you and in favor of the plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days from the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. 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. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Respectfully submitted, McNees Wallace & Nurick LLC Date: July ( , 2009 By: S' Sh)(ff, Esquire Court ID #24848 YMia P. Coelho, Esquire Supreme Court ID #210039 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff, Susquehanna Bank 01: TlIr 2009 AUG -3 FM 2: ! ? f COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SUSQUEHANNA BANK, : DOCKET NO. Oq - 53?8 CtV? I (erw successor in interest to CommunityBanks, Plaintiff V. GREGORY R. WAREHIME, Defendant To: Gregory R. Warehime, Defendant CONFESSION OF JUDGMENT : PREVIOUSLY ASSIGNED TO: N/A You are hereby notified that on AgA. , 2009, judgment by confession was entered against you in the sum of $48,842.35, plu interest at the rate of $5.99112 per day, and reasonable attorneys' fees and expenses incurred by the Plaintiff to be determined at hearing, and other expenses, fees and costs to which the Plaintiff may be entitled to be determined at hearing, through the date of payment, including on and after the date of entry of judgment on the Complaint in the above-captioned case. DATE: s P thonotary YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 I hereby certify that the following are the addresses of the Defendant stated in the certificate of residence: Gregory R. Warehime Gregory R. Warehime 94 Parsonage Street 154 Lawrence Lane Newville, PA 17241 Carlisle, PA 17103 Geo . e , A rney for Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SUSQUEHANNA BANK, successor in interest to CommunityBanks, Plaintiff V. GREGORY R. WAREHIME, Defendant DOCKET NO. 09-5378 Civil Term CONFESSION OF JUDGMENT : PREVIOUSLY ASSIGNED TO: N/A RETURN OF SERVICE PURSUANT TO PA. R.C.P. No. 2958.1(c) Plaintiff, Susquehanna Bank, hereby files this Return of Service and swears and affirms that the person or persons listed below was or were served pursuant to Pa. R.C.P. No. 2958.1(b) with the Notice of Judgment and Execution Required by Rule 2958.1 by certified mail, return receipt requested, as provided by Pa. R.C.P. No. 403. A copy of each receipt for certified mail is attached hereto. Gregory R. Warehime 154 Lawrence Lane Carlisle, PA 17103 Respectfully submitted, McNees Wallace & Nurick LLC Date: August 19, 2009 By: eo y S, huff, Esquire Lstilreme Court ID #24848 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff .. k 7160 3901 9848 1688 9756 TO: Gregory R. Warehime 154 Lawrence Lane Carlisle, PA 17103 SENDER: Geoffrey S. Shuff 7 REFERENCE: r 5 PS Form 3800, Janu t? RETURN Postage 7 a RECEIPT Certified Fa / d SERVICE Return Receipt Fee .s Restricted Delivery Total Postage & Fees US Postal Service POSTMARK OR DATE Receipt for Certified Mail No Insurance Coverage Provided Do Not Use for International Mail ------------- ---------------------------------- ------ 2. Article Number -- - - - - - - - - - 7RRe-ceeiv-edd se Pr' t Clearly) AIM Date DAWd Jill 111 7160 3901 9848 1688 9756 ?' i X ? l vv ?Addressee , D. Is delivery address different from item 1? ? Yes If YES, enter delivery address below: ? No 3. Service Type CERTIFIED MAIL 4. Restricted Delivery? (Extra Fee) ElYes 1. Article Addressed to: Gregory R. Warehime 154 Lawrence Lane Carlisle, PA 17103 Susquehanna Bank Geoffrey S. Shuff PS Form 3811, January 2005 Domestic Return Receipt OCTt _R?LErID-'lip`} ("E 2009 AUG 2 ! P 2: 3 6 GUP,?? J ?? ;.Y SUSQUEHANNA BANK, : IN THE COURT OF COMMON PLEAS OF successor in interest to CommunityBanks,: CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, NO. 2009 - 5378 CIVIL TERM V. CONFESSION OF JUDGMENT GREGORY R. WAREHIME, . Defendant. JURY TRIAL DEMANDED DEFENDANT'S PETITION TO STRIKE OFF / OPEN CONFESSED JUDGMENT AND NOW this 2ND day of August, 2009, comes the Defendant, GREGORY R. WAREHIME, by and through his attorneys, Irwin & McKnight, P.C., and respectfully petitions this Court to strike off or open the default judgment entered against Defendants on or about August 3, 2009, and in support thereof aver as follows: 1. Plaintiff commenced this action against Defendant on or about August 3, 2009 by Complaint for Confession of Judgment that in summary alleges that Defendant guaranteed to Plaintiff the payment of all amounts due under a Master Promissory Note executed by Comfort Mechanical, LLC. 2. In support of its Complaint, Plaintiff attached copies of a Guaranty and Suretyship Agreement, Explanation of Rights-Confession of Judgment, and Master Promissory Note. 3. Section 10 of the Plaintiff's Guaranty and Suretyship Agreement states in pertinent part: "GUARANTOR HEREBY AUTHORIZES AND EMPOWERS IRREVOCABLY THE PROTHONOTARY ... TO CONFESS JUDGMENT AGAINST GUARANTOR IN FAVOR OF THE HOLDER OF THE LOAN AT ANY TIME AFTER A DEFAULT AND AFTER THE EXPIRATION OF ANY APPLICABLE CURE PERIODS...." 4. However, paragraph 1(a) of the Plaintiff s Explanation of Rights document, states that "Guarantor authorizes Bank to enter a Judgment against Guarantor in Bank's favor, after the occurrence of an event of default or a demand for payment and after any applicable notice and cure period ..." (emphasis added). 5. The language in the Explanation of Rights document is at odds with the Guaranty Agreement, and is therefore ambiguous. 6. Defendant asserts that while there may have been a demand for payment made by Plaintiff against Comfort Mechanical, LLC, there has not been an event of default by Defendant as set forth in the applicable contracts. 7. Defendant has made and continues to make all regular monthly payments of interest owed to Plaintiff by Comfort Mechanical, LLC, along with any applicable late fees and additional principal payments. True and correct copies of check stubs, check carbon copies, and bank statements showing interest payments from December 2008 through August 2009 are attached hereto and referenced herein as Exhibit "A." 8. Plaintiffs confession of judgment for interest in the stated amount of $778.36 is therefore also incorrect and without legal basis or justification. 9. The confession of judgment entered in this action is irregular by reason of defects appearing on the face of the record. 10. The Explanation of Rights document further does not include any provision confirming that Defendant has annual income in excess of $10,000.00. 11. At the time he executed the contract, Defendant did not know that it contained a confession of judgment that, as Plaintiff asserts, permits the entry of a judgment even where Defendant makes all of the required interest payments and has not otherwise sought to deny repayment of the corporation's obligations to Plaintiff. 12. Plaintiffs representatives did not so explain the confession of judgment language, and Defendant did not voluntarily, intelligently, and knowingly waive his due process rights under such circumstances. 13. Accordingly, for the reasons set forth above, the entry of judgment under Rule 2951 was improper and must be stricken from the record. 14. This Petition has been filed promptly after notice of the entry of judgment by confession. 15. No judge has previously been involved in this matter, and due to the nature of the pleadings concurrence of opposing counsel was not sought. WHEREFORE, Defendant, GREGORY R. WAREHIME, respectfully requests that this Honorable Court strike off and/or open the confessed judgment entered of record in the above captioned matter, and that any and all execution proceedings upon the contested judgment be stayed pending resolution of the Petition to Strike Off / Open Judgment pending such determination. Respectfully Submitted, IRWIN & McKNIGHT, P.C. f ?A JAelh, A. A- By: Douglas . Miller, Esquire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Dated: September 2, 2009 Attorney for Defendant VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unworn falsification to authorities. - A_e?? 16J'e?_ ZI GRE R. WAREHIME Date: September 2, 2009 EXHIBIT "A" 2364 i wE 12/4/2008 PAYTO M& T Bank AMOUNT $ 500.00 x MEMO loan int. 12044449186214998 O'°EO Interest Expense- Bank Loans AOCT Cornerstone FCU 2365 Dm 12/10/2008 WTO SUSQUEHANNA BANK PA AMOUNT $ 206.14 MEMO line of credit r #109118141 OA L:G- Interest Expense- Bank Loans AwT Cornerstone FCU 2390 care 1/26/2009 PAYTO SUSQUEHANNA BANK PA "" s 195.65 line of credit #109118141 O Interest Expense- Bank Loans A=. Cornerstone FCU 2397 DM 2/10/2009 PAYTO SUSQUEHANNA BANK PA AmouNT $ 275.00 mEw line of credit / #109118141 cAYEO• Interest Expense- Bank Loans "wT Cornerstone FCU ------------------- RCHECKBOX _ ---------------M1---- ST7REYOURDUPUCATECHECKSWyt ------------ -- ?TM11ek your expenses... ? CiiOtfllflQ ... ?'O F..d ? Tran3pOrtanOn ? TAX-DEDUCTIBLE ITEM 460 ?an card_ ? Unties ? Mortgage 0' ntertainment ? Insurance Other: 00, Susquehann4 DATE 4/13/09 ACCOUNT NO. COMMERCIAL LOAN PRINCIPAL DUE I COMFORT MECHANICAL LLC .00 154 LAWRENCE LN CARLISLE PA 1 INTEREST DUE 7015-0000 109.13 ESCROW-LTCHG-OTHER DUE 50.00 PAST DUE AMOUNT 48,847.20 STATEMENT P ERIOD 3/27/09 - 4/13/09 INTEREST RATE 4.500000$ CREDIT LIMIT INTEREST PAID YTD 554.22 IIJTEREST PAID LAST YEAR 3,254.13 DATE DESCRIPTION OF TRANSACTIONS AMOUNT 3/27/09 PREVIOUS PRINCIPAL BALANCE 4/13/09 ENDING PRINCIPAL BALANCE 00 00 PAYMENT DUE DA 4/28/09 PAGE 1 109118141 TOTAL AMOUNT DUE 48,932.05 50,000.00 PRIN BALANCE 48,499.91 48,499.91 Susquehanna COMFORT MECHANICAL LLC 154 LAWRENCE LN CARLISLE PA 17015-0000 DATE 5/13/09 ACCOUNT NO. COMMERCIAL LOAN PRINCIPAL DUE I 180.9.2 .00 PAST DUE AMOUNT PAYMENT DUE DA 48,806.33 5/28/09 STATEMENT PERIOD 4/14/09 - 5/13/09 INTEREST RATE 4.500000% CREDIT LIMIT INTEREST PAID YTD 554.22 INTEREST PAID LAST YEAR 3,254.13 DATE DESCRIPTION OF TRANSACTIONS AMOUNT 4/14/09 PREVIOUS PRINCIPAL BALANCE 4/20/09 Regular Payment 200.00 4/20/09 Principal Payment Applied 200.00 5/13/09 ENDING PRINCIPAL BALANCE PAGE 1- 109118141 TOTAL AMOUNT DUE 48,912.97 50,000.00 PRIN BALANCE 48,499.91 48,299.91 48,299.91 Susquehan 4 COMFORT MECHANICAL LLC 154 LAWRENCE LN CARLISLE PA 17015-0000 DATE 6/12/09 ACCOUNT NO. COMMERCIAL LOAN PRINCIPAL DUE .00 INTEREST DUE 186.42 ESCROW-LTCHG-OTHER DU .00 PAST DUE AMOUNT PAYMENT DUE DA 48,806.33 6/28/09 STATEMENT PERIOD 5/14/09 - 6/12/09 INTEREST RATE 4.500000$ INTEREST PAID YTD 554.22 INTEREST PAID LAST YEAR 3,254.13 DATE DESCRIPTION OF TRANSACTIONS 5/14/09 PREVIOUS PRINCIPAL BALANCE 5/26/09 Regular Payment 5/26/09 Principal Payment Applied 6/12/09 ENDING PRINCIPAL BALANCE CREDIT LIMIT AMOUNT 180.92 180.92 48,299.91 48,118.99 48,118.99 led wootio 00001, yo! PAGE 1 109118141 TOTAL AMOUNT DUE 48, 918.47 50,000.00 PRIN BALANCE Susquehan COMFORT MECHANICAL LLC 154 LAWRENCE LN CARLISLE PA 17015 DATE 7/13/09 PAGE 1 ACCOUNT NO. 109118141 COMMERCIAL LOAN PRINCIPAL DUEL .00 INTEREST DUE 179.78 ESCROW-LTCHG-OTHER DU .00 PAST DUE AMOUNT PAYMENT DUE DATE TOTAL AMOUNT DUE 48,802.75 7/28/09 48,908.25 STATEMENT PERIOD 6/13/09 - 7/13/09 INTEREST RATE 4.500000$ INTEREST PAID YTD 554.22 INTEREST PAID LAST YEAR 3,254.13 DATE DESCRIPTION OF TRANSACTIONS 6/13/09 PREVIOUS PRINCIPAL BALANCE 6/30/09 Regular Payment 6/30/09 Regular Payment 6/30/09 Principal Payment Applied 7/13/09 ENDING PRINCIPAL BALANCE CREDIT LIMIT 50,000.00 AMOUNT PRIN BALANCE 48,118.99 190.00 190.00 190.00 47,928.99 47,928.99 7/A -7 o ? ,r? 4' 3 pL?- DATE 8/13/09 PAGE 1 ..ISgt/e fiQnn ACCOUNT NO. 10 9118141 COMMERCIAL LOAN PRINCIPAL DUE Q COMFORT MECHANICAL LLC 15 .00 // f O 7/ 7 4 LAWRENCE LN CARLISLE PA 17015 INTegtf E ? ? 185.07 ? ,? ESCRO - ER DU .00 PAST DUE AMOUNT PAYMENT DUE DATE TOTAL AMOUNT DUE 48,802.75 8/28/09 48,913.32 STATEMENT P ERIOD 7/14/09 - 8/13/09 INTEREST INTEREST RATE 4.500000$ PAID YTD CREDIT LIMIT 50,000.00 554.22 INTEREST PAID LAST YEAR 3,254.13 DATE DESCRIPTION OF TRANSACTIONS AMOUNT PRIN BALANCE 7/14/09 PREVIOUS PRINCIPAL BALANCE 7/30/09 Regular Payment 179 78 47,928.99 7/30/09 Regular Payment . 179 78 7/30/09 Principal Payment Applied . 179 78 7/30/09 Principal Only Payment . 22 47,749.21 8/13/09 ENDING PRINCIPAL BALANCE . 47,748.99 47,748.99 i SusquL-hanna Hank Walnut Bottom Road Office Drawer 11103 Trans # 5 8/25/09 08:50 Ali Loan Payment Transaction Account ************8141 Transaction Amt 185.07 Cash Received .00 Available Balance N/A This Transaction will post on 8/2509 Deposits are subject to validation and collection. Ask how you can get our Free VISA Check Card to start earning ScoreCard Rewards' Thank you for banking with Susquehanna Bank. 1-800-311-3182 Visit us at www.susquehanna.net CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: Geoffrey S. Shuff, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 Attorney for Plaintiff Date: September 2, 2009 IRWIN & McKNIGHT, P.C. 7D 41 J'14? Douglas G iller, squire Supreme Court ID # 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 Attorney for Defendant 20GS' S'L9 `2 SUSQUEHANNA BANK, successor in interest to Community Banks, Plaintiff V. GREGORY R. WAREHIME, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 09-5378 CIVIL TERM ORDER OF COURT AND NOW, this 4`h day of September, 2009, upon consideration of Defendant's Petition to Strike Off/Open Confessed Judgment, it is ordered that: 1. A Rule is issued upon Plaintiff to show cause why Defendant is not entitled to the relief requested; 2. Plaintiff shall file an answer to the motion within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Thursday, December 10, 2009, at 2:00 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Briefs shall be submitted at least seven days prior to argument. V "'Geoffrey S. Shuff, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Plaintiff BY THE COURT, A ,, Douglas G. Miller, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant :rc (20 ILL ALED-OrFICE OF THE PPOT4 ONOT'ARY 2009 SEP -4 PM 2: 32 CUMBI-r;,.? 4L' ojul1TY PENNSIANIA