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HomeMy WebLinkAbout11-3609 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by Merger to COMMUNITY BANKS, N.A., Plaintiff, Defendant. Vs. W&Z MANAGEMENT, LLC, TO: DEFENDANT(S) YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED COMPLAINT WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BEE E AINST YOU. V-" ?, ATTFOR PLA TIFF I HEREBY CERTIFY THAT THE ADDRESS OF THE PLAINTIFF IS: 307 International Drive, Suite 600 Hunt Valley, MD 21030 AND THE DEFENDANT(S): 920 Linda Lane, Camp Hill, PA 17011 and 608 Mar et Street, New Cumberland, PA 17070 ATTO FOR PLAINTIFF CERTIFICATE OF LOCATION I HEREBY CERTIFY THAT THE LOCATION OF THE REAL EST AFFECTED BY THIS LIEN IS 608 M,tl. •ket r New Cumberland, PA 17070 ATTTY FOR PL IDMFF CIVIL DIVISION NO.. J v 3CeC l C 1? I TYPE OF PLEADING CIVIL ACTION - COMPLAINT IN MORTGAGE FORECLOSURE FILED ON BEHALF OF: Susquehanna Bank, Successor by Merger to Community Banks, N.A., Plaintiff COUNSEL OF RECORD FOR THIS PARTY: Scott A. Dietterick, Esquire Pa. I.D. #55650 Kimberly A. Bonner, Esquire Pa. I.D. #89705 n P'a -OM -- ? rn --v :Z::o ::0 Cn JAMES, SMITH, DIETTERICK & CONNELLY LLP c-> CJ P.O. Box 650 " ' Hershey, PA 17033 -; w (717) 533-3280 z r?I C7 ? z° zF5 rn %ql,. 1) zld PA)' (?a yak I IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 ET SEQ. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF, IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL ESTATE. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by CIVIL DIVISION Merger to COMMUNITY BANKS, N.A., Plaintiff, vs. W&Z MANAGEMENT, LLC, Defendant. NO.. NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claim 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 SHOULD 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. NOTICE TO DEFEND & LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Phone (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by CIVIL DIVISION Merger to COMMUNITY BANKS, N.A., Plaintiff, NO.: VS. W&Z MANAGEMENT, LLC, Defendant. AVISO USTED HA SIDO DEMONDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro do los proximos veinte (20) dias despues de la notifacacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comperencencia escrita y redicanco en la Courte por escrito sus defensas de, y objecciones a, los demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero O propieded u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABAGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME A VAYA A LA SIGUEINTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. NOTICE TO DEFEND & LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 Phone (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by CIVIL DIVISION Merger to COMMUNITY BANKS, N.A., Plaintiff, VS. W&Z MANAGEMENT, LLC, Defendant. NO.. CIVIL ACTION - COMPLAINT IN MORTGAGE FORECLOSURE And now comes Susquehanna Bank, Successor by Merger to Community Banks, N.A., by its attorneys, James, Smith, Dietterick & Connelly LLP, and files this Complaint in Mortgage Foreclosure as follows: 1. The Plaintiff is Susquehanna Bank, Successor by Merger to Community Banks, N.A., which has its principal place of business at 307 International Drive, Suite 600, Hunt Valley, Maryland 21030. 2. The Defendant is W&Z Management, LLC, with an address of 920 Linda Lane, Camp Hill, Pennsylvania 17011 and 608 Market Street, New Cumberland, Pennsylvania 17070. 3. On or about March 15, 2001, Defendant executed a Commercial Variable Rate Promissory Note ("Note") in favor of Plaintiff in the original principal amount of $265,000.00. A true and correct copy of said Note is marked Exhibit "A", attached hereto and made a part hereof. 4. On or about March 15, 2011, as security for payment of the aforesaid Note, Defendant made, executed and delivered to Plaintiff an Open-End Mortgage ("Mortgage") in the original principal amount of $265,000.00 on the premises hereinafter described, with said Mortgage being recorded in the Office of the Recorder of Deeds of Cumberland County on March 19, 2001, in Mortgage Book Volume 1680, Page 660. A true and correct copy of said Mortgage containing a description of the premises subject to said Mortgage is marked Exhibit "B", attached hereto and made a part hereof. 5. Defendant is the record and real owner of the aforesaid mortgaged premises. 6. Defendant is in default under the terms of the aforesaid Mortgage and Note for, inter alia, failure to pay the monthly installments of principal and interest when due. 7. Plaintiff was not required to send Defendant(s) written Notice pursuant to 35 P.S. §1680.401(a)(2) (Homeowners' Emergency Mortgage Assistance Act of 1983, - Act 91 of 1983), prior to commencement of this action for the reason that the mortgaged premises is not an owner occupied residence. 8. Plaintiff was not required to send Defendant(s) written notice of Plaintiff's intention to foreclose said Mortgage pursuant to 41 P.S. §403 (Act 6 of 1974) prior to the commencement of this action for the reason that the original principal balance of the aforesaid Mortgage is more than the original principal balance threshold of the Act, and therefore, said Mortgage is not a "residential mortgage" as defined in 41 P. S. §101. 9. The amount due and owing Plaintiff by Defendant is as follows: Principal $ 165,593.95 Interest through 3/16/2011 $ 2,020.82 Late Charges $ 486.45 Satisfaction Fee $ 40.00 Attorney's Fees $ 1,300.00 Title Costs $ 410.00 TOTAL $ 169,851.22 plus interest on the principal sum ($165,593.95) from March 16, 2011 at the rate of $24.15 per diem, plus additional late charges, and costs (including additional escrow advances), additional attorneys' fees and costs and for foreclosure and sale of the mortgaged premises. WHEREFORE, Plaintiff demands judgment in mortgage foreclosure for the amount due of $169,851.22, with interest thereon at the rate of $24.15 per diem from March 16, 2011 plus additional late charges, and costs (including additional escrow advances), additional attorneys' fees and costs and for foreclosure and sale of the mortgaged premises. JAMES, Dated: q1 14111 BY: Scott . Dietterick, Esquire PA I.D. # 55650 Kimberly A. Bonner, Esquire PA I.D #89705 Attorneys for Plaintiff P.O. Box 650 Hershey, PA 17033 (717) 533-3280 & CONNELLY LLP THIS IS AN ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. EXHIBIT "A" all ,NA. 150 Market Square P.O. Box 350 Millersburg, PA 17061 (717) 692-4781 "LENDER" SORRO" ER WE inagement, LLC ADDRESS 920 Linda Lane Camp Hill, PA 17011 TELEPHONE NO. IDENTIFICATION NO. (717) 731-6770 C9MMERCIAL VARIABLE RATE PROMISSORY NOTE OFF'-' ILEH -' IN R T PRINCIPAL FUNDING: MATURITY CU5R:NAER- LOAN IDENTIFICATION RATE AMOUNT DATE DATE NUMBER' NUMBER 33 VARIABLE $265,000.00 03/15/011 03/14/21 1 45010931 To refinance the existing loan facility and provide permanent financing PROMISE TO PAY: For value received, Borrower promises to pay to the order of Lender the principal amount of Two Hundred Sixty Five _ Thousand and no/100 Dollars ($ 265, 000.00 ) plus interest on the unpaid principal balance at the rate and in the manner described below, until all amounts owing under this Note are paid in full. All amounts received by Lender shall be applied first to accrued, unpaid interest, then to unpaid principal, and then to any late charges or expenses, or in any other order as determined by Lender, in Lender's sole discretion, as permitted by law. INTEREST RATE: This Note has a variable interest rate feature. The interest rate on this Note may change from time to time if the Index Rate identified below changes. Interest shall be computed on the basis of the actual number of davs over 360 days per year. Interest on this Note shall be calculated and pa ?t le at a variable rate equal to 0 , 00 0 % per annum under the Index Rate. The initial interest rate on this Note shall be 8 , 2 5 0 % per annum. Any change in the interest rate resulting from a change in the Index Rate will be effective on DATE OF CHANGE. INDEX RATE: Tfia Index%aPe r ffiis (Iola shall be: COMMUNITY BANKS, N.A. COMMERCIAL PRIME RATE: THIS INDEX IS TYPICALLY EQUAL TO THE "NATIONAL PRIME RATE" AS PUBLISHED IN THE WALL STREET JOURNAL. If the Index Rate is redefined or becomes unavailable, then Lender may select another index which is substantially similar. RATE LIMITATIONS: Subject to applicable law, the minimum interest rate on this Note shall be 4 . 000 %per annum. The maximum interest rate on this Note shall not exceed 21.000 %per annum, or if less, or if a maximum rate is not indicated, the maximum interest rate Lender is permitted to charge by law. The maximum rate increase at any one time will be n/a %. The maximum rate decrease at any one time will be n/a %. DEFAULT RATE: If there is an Event of Default under this Note, the Lender may, in its discretion, increase the interest rate on this Note to#tate in or the maximum interest rate Lender is permitted to charge by law, whichever is less. PAYMENT SCHEDULE: Borrower shall pay the principal and interest according to the following schedule: 239 payments of $2,277.91 beginning April 14, 2001 and continuing at monthly time intervals thereafter. A final payment of the unpaid principal balance plus accrued interest is due and payable on March 14, 2021. PREPAYMENT: This Note may be prepaid in part or in full on or before Its maturity date. If this Note contains more than one installment, any partial prepayment will not affect the due date or the amount of any subsequent installment, unless agreed to, in writing, by Borrower and Lender. If this Note is prepaid in full, there will be: ® No minimum finance charge or prepayment penalty. ? A minimum finance charge of $ [] A prepayment penalty of: LATE CHARGE: If aaymenI is received more than 15 days late, Borrower will be charged a late charge of: ? %of the unpaid amount of the late payment; X $ 5 . 0 0 or 5.00 % of the unpaid amount of the late payment, whichever is ater I Js. SECURITY: To secure the payment and performance of obligations incurred under this Note, Borrower grants Lender a security interest in all of Borrower's right, title, and interest in all monies, instruments, savings, checking and other accounts of Borrower (excluding IRA, Keogh, trust accounts and other accounts subject to tax penalties if so assigned) that are now or in the future in Lender's custody or control. X? If checked, the obligations under this Note are also secured by the Collateral described in any security instrument(s) executed in connection with this Note, and any collateral described in any other security instrument(s) securing this Note or all of Borrower's obligations. RENEWAL: ? If checked, this Note is a renewal, but not a satisfaction, of Loan Number wARrvIrvG: READ BEFORE SIGNING - YOU ARE WAIVING IMPORTANT R... IF CHECKED, AS A MATERIAL INDUCEMENT TO LENDER TO MAKE THE LOAN EVIDENCED BY THIS NOTE, BORROWER IRREVOCABLYAUTHORIZES AND EMPOWERSANY ATTORNEY OR THE PROTHONOTARYOR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA.OR ELSEW HERETO APPEAR AS ATTORNEY FOR BORROWER IN ANY ACTION BROUGHT BY LENDER AFTER BORROWER'S DEFAULT UNDER THIS NOTE OR ANY OTHER LOAN DOCUMENT, AND TO CONFESS JUDGMENT AGAINST BORROWER FOR ALL SUMS DUE UNDER THIS NOTE OR ANY OTHER LOAN DOCUMENT, AND FOR ALL ACCRUED INTERESTON THOSE AMOUNTS, COST OF SUIT, AND ATTORNEYFEES, TOGETHER WITH INTERESTON ANY JUDGMENT, ATTHE RATEOF INTERESTSPECIFIEDIN THE NOTE AFTER DEFAULT, FROM THE ENTRY OF SUCH JUDGMENT UNTIL THE FULL AMOUNT DUE LENDER IS ACTUALLY RECEIVED. THIS NOTE, OR A COPY VERIFIED BY AFFIDAVIT, WILL BE A SUFFICIENT WARRANT. THE AUTHORITY GRANTED HEREIN MAY BE EXERCISEDAS NEEDED FROM TIME TO TIME, AS OFTEN AS NECESSARY, UNTIL RECEIPTOF PAYMENT IN FULL OF ALL SUMS DUE LENDER BORROWER KNOWINGLY, INTENTIONALLYAND VOLU NTARILY AFTER CONS ULTATIONWITH INDEPENDENTCOUNSEL, UNCONOITIONALLYWAIVESANY AND ALL RIGHTS TO DUE PROCESS BORROWER HAS OR MAY HAVE UNDER THE CONSTITUTIONSAND LAWS OF THE UNITED STATES AND OF THE COMMONWEALTH OF PENNSYLVANIXEXCEPTTHE RIGHT TO ANY NOTICE AND/OR HEARING REQUIRED UNDER APPLICABLE LAW WITH RESPECT TO THE EXECUTION OF ANY CONFESSED JUDGEMENT. BORROWER FURTHER UNDERSTANDS THAT UPON BORROWER'S DEFAULT AND CONFESSION OF JUDGMENT, THIS WAVIERALLOWS LENDER TO IMMEDIATELYEXECUTE UPON AND SEIZE AND SELL ANY OF BORROWER'S PROPERTYWITHOUT PRIOR NOTICE OR OPPORTUNITY FOR HEARING, EXCEPTANY NOTICE AND/OR HEARING REQUIRED UNDER APPLICABLELAW WITH RESPECTTO THE EXECUTIONOF THE CONFESSEDJUDGEMENT, IN ORDER TO SATISFYOR SECURE ALL SUMS DUE. PROVISIONS ON THE REVERSE SIDE, AND FURTHER ACKNOWLEDGE RECEIPT OF AN EXACT COPY OF THIS NOTE. IN WITNESS WHEREOF, the undersigned has/have caused this instrument to be executed as a sealed instrument this 15th day of March, 2001 _ BORRO R: &Z Management, LLC BORROWER:W&Z Management, LLC B (Seal) Mar Z a y ?Q rn aw" 6 BORROWER: BORROWER: BORROWER: Bv: YLC6r64.) ?9• ?.//tdrt(? (Seal) H elena A Williams Brlv¢?2 V"e BORROWER: (Seal) BORROWER: (Seal) BORROWER: (Seal) (Seal) TERMS AND CONDITIONS 1. EVENTS OF DEFAULT. An Event of Dom. .., will ?. _ur under this Nate in the event that Borrows any g,.,,,antor or any other, third pan )ledg;tig collateral to secure this Note: (a) fails to make any payment on this Note or any other indebtedness to Lender when due; (b) fails to perform any obligation or breaches any warranty or covenant to Lender contained in this Note, any seCL.ity instrument, or any other present or future written agreement regarding this or any other indebtedness of Borrower to Lender; (c) provides or causes any false or misleading signature or representation to be provided to Lender; (d) sells, conveys, or transfers rights in any collateral securing this Nate without the written approval of Lender; destroys, loses or damages such collateral in any material respect; or subjects such collateral to seizure, confiscation or condemnation; (e) has a garnishment, judgment, tax levy, attachment or lien entered or served against Borrower, any guarantor, or any third parry pledging collateral to secure this Note or any of their property; (f) dies, becomes legally incompetent, is dissolved or terminated, ceases to operate its business, becomes insolvent, makes an assignment for the benefit of creditors, fails to pay debts as they become due, or becomes the subject of any bankruptcy, insolvency or debtor rehabilitation proceeding; (g) fails to provide Lender evidence of satisfactory financial condition; (h) has a majority of its outstanding voting securities sold, transferred or conveyed to any person or entity other than any person or entity that has the majority ownership as of the date of the execution of this Note; or (I) causes Lender to deem itself insecure due to a significant decline in the value of any real or personal property securing payment of this Note, or Lender in good faith, believes the prospect of payment or performance is impaired. 2 RIGHTS OF LENDER ON EVENT OF DEFAULT. If there is an Event of Default under this Note, Lender will be entitled to exercise one or more of the following remedies without notice or demand (except as required by law): (a) to declare the principal amount plus accrued interest under this Note and all other present and future obligations of Borrower immediately due and payable in full, such acceleration shall be automatic and immediate if the Event of Default is a filing under the Bankruptcy Code; (b) to collect the outstanding obligations of Borrower with or without resorting to judicial process; (c) to cease making advances under this Note or any other agreement between Borrower and Lender; (d) to take possession of any collateral in any manner permitted by law; (e) to require Borrower to deliver and make available to Lender any collateral at a place reasonably convenient to Borrower and Lender; (f) to sell, lease or otherwise dispose of any collateral and collect any deficiency balance with or without resorting to legal process; (g) to set-off Borrower's obligations against any amounts due to Borrower including, but not limited to, monies, instruments, and deposit accounts maintained with Lender, and (h) to exercise all other rights available to Lender under any other written agreement or applicable law. Lender's rights are cumulative and may be exercised together, separately, and in any order. Lender's remedies under this paragraph are in addition to those available at common law, including, but not limited to, the right of set-off. 3. DEMAND FEATURE. ? If checked, this Note contains a demand feature. Lender's right to demand payment, at any time, and from time to time, shall be in Lender's sole and absolute discretion, whether or not any default has occurred. 4. FINANCIAL INFORMATION. Borrower will at all times keep proper books of record and account in which full, true and correct entries shall be made in accordance with generally accepted accounting principles and will deliver to Lender, within ninety (90) days after the end of each fiscal year of Borrower, a copy of the annual financial statements of Borrower relating to such fiscal year, such statements to include (i) the balance sheet of Borrower as at the end of such fiscal year and (ii) the related income statement, statement of retained earnings and statement of cash flow of Borrower for such fiscal year, prepared by such certified public accountants as may be reasonably satisfactory to Lender. Borrower also agrees to deliver to Lender within fifteen (15) days after filing same, a copy of Borrower's income tax returns and also, from time to time, such other financial information with respect to Borrower as Lender may request. 5. MODIFICATION AND WAIVER. The modification or waiver of any of Borrower's obligations or Lender's rights under this Note must be contained in a writing signed by Lender. Lender may perform any of Borrower's obligations or delay or fail to exercise any of its rights without causing a waiver of those obligations or rights. A waiver on one occasion will not constitute a waiver on any other occasion. Borrower's obligations under this Note shall not be affected if Lender amends, compromises, exchanges, fails to exercise, impairs or releases any of the obligations belonging to any co-borrower or guarantor or any of its rights against any co-borrower, guarantor, the collateral or any other property securing the obligations. Lender may accept and apply checks and other instruments marked "Paid in Full" or with a similar phrase describing a payment as full satisfaction of the obligations incurred under this Note, without being bound by that language and without waiving any rights to payment of all amounts owing under this Note. 6. SEVERABILITY. If any provision of this Note is invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 7. ASSIGNMENT. Borrower agrees not to assign any of Borrower's rights, remedies or obligations described in this Note without the prior written consent of Lender, which consent may be withheld by Lender in its sole discretion. Borrower agrees that Lender is entitled to assign some or all of its rights and remedies described in this Note without notice to or the prior consent of Borrower. 8. NOTICE. Any notice or other communication to be provided to Borrower or Lender under this Note shall be in writing and sent to the parties at the addresses described in this Note or such other address as the parties may designate in writing from time to time. 9. APPLICABLE LAW. This Note shall be governed by the laws of the state indicated in Lender's address. Unless applicable law provides otherwise, Borrower consents to the jurisdiction and venue of any court located in such state selected by Lender, In its discretion, in the event of any legal proceeding under this Note. 10. COLLECTION COSTS. To the extent permitted by law, Borrower agrees to pay Lender's reasonable fees and costs, including, but not limited to, fees and costs of attorneys and other agents (including without limitation paralegals, clerks and consultants), whether or not such attorney or agent is an employee of Lender, which are incurred by Lender in collecting any amount due or enforcing any right or remedy under this Note, whether or not suit is brought, including, but not limited to, all fees and costs incurred on appeal, in bankruptcy, and for post-judgment collection actions. 11. MISCELLANEOUS. This Note is being executed primarily for commercial, agricultural, or business purposes. Borrower and Lender agree that time is of the essence. Borrower agrees to make all payments to Lender at any address designated by Lender and in lawful United States currency. Borrower and any person who endorses this Note waives presentment, demand for payment, notice of dishonor and protest and further waives any right to require Lender to proceed against anyone else before proceeding against Borrower or said person. All references to Borrower In this Note shall include all of the parties signing this Note, and this Note shall be binding upon the heirs, successors and assigns of Borrower and Lender. If there is more than one Borrower their obligations under this Note shall be joint and several. Information concerning this Note may be reported to credit reporting agencies and will be made available when requested by proper legal process. This Note represents the complete and integrated understanding between Borrower and Lender regarding the terms hereof. 12. JURY TRIAL WAIVER. LENDER AND BORROWER HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS NOTE OR THE COLLATERAL SECURING THIS NOTE. 13. ADDITIONAL TERMS: EXHIBIT "B" , ` _7D;G? SU CUMBERLAND COUNTY-PA '01 MRR 19 flm 9.3 9 After Recordation Return to: Community Banks, N.A. 2796 Old Post Road Harrisburg, PA 17110 OPEN-END MORTGAGE BORROWER IW&Z Management, LLC ADDRESS 920 Linda Lane Camp Hill, PA 17011 TELEPHONENO. =<IDENTIFICA'nUH NO. . (717) 731-6770 MORTGAGOR W&Z Management, LLC ADDRESS. 920 Linda Lane Camp Hill, PA 17011 TELEPHONE NO, IDENTIFIGAT30N NO.. (717) 731-6770 In consideration of the loan or other credit accommodation hereinafter specified and any future advances, which may hereinafter be advanced or incurred and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged Mortgagor has, and by these presents does hereb Qrant, convey, bargain, sell and mortgage to r'^'"""'^i *Y Banks N .A 2796 O`ld Post Road, Tdarr sjo rg, UA 17110 ("Lender"), its successors and assigns, with power of sale and right of entry and possession all of Mortgagor's present and future estate, right, title and interest in and to the real property described in Schedule A which is attached to this Mortgage and incorporated herein by this reference, together with all present and future improvements and fixtures; all tangible personal property, including, without limitation, all machinery, equipment, building materials, and goods of every nature ;(excluding household goods) now or hereafter located on or used in connection with the real property, whether or not affixed to the land; privileges, hereditaments, easements, and appurtenances, including all development rights associated with the Property, whether previously or subsequently transferred to the Property from other real property or now or hereafter susceptible of transfer from the Property to other real property; leases, licenses and other agreements; rents, issues and profits; water, well, ditch, reservoir and mineral rights and stocks pertaining to the real property (cumulatively "Property"); until payment in full of all Obligations secured hereby. Moreover, in further consideration, Mortgagor does, for Mortgagor and Mortgagor's heirs, representatives, successors and assigns, hereby expressly warrant, covenant, and agree with Lender its successors and assigns as follows: 1. OBLIGATIONS. This Mortgage shall secure the payment and performance of all indebtedn2% IiabiRiet00bligaticns and covenants of Borrower or Mortgagor to Lender up to a maximum amount outstanding at anyone time of $ 6 0000 plus accrued and unpaid interest (cumulatively "Obligations") pursuant to: (a) this Mortgage and the following promissory note and other agreements: RATIO I CREDIT LIMIT AGREEMENT DATE .DATE LOAN NUMBER -NUMBER VARIABLE $265,000.00 03/15/01 03/14/21 45010931 (b) obligatory future advances, to the same extent as if made contemporaneously with the execution of this Mortgage, made or extended on behalf of Mortgagor or Borrower. Mortgagor agrees that if the Obligation is a line of credit, the lien created by this Mortgage shall continue until payment in full of all debt due under the line notwithstanding the fact that from time to time (but before termination of the line) no balance may be outstanding; and (c) unpaid balances of advances made, with respect to the Property, for the payment of taxes, assessments, maintenance charges, insurance premiums or costs incurred for the protection of the Property or lien of this Mortgage, and expenses incurred by the Lender by reason of default by the Mortgagor under this Mortgage; and (d) all amendments, extensions, renewals, modifications, replacements or substitutions to any of the foregoing. As used in this Paragraph 1, the terms Mortgagor and Borrower shall include and also mean any Mortgagor or Borrower 0 more than one. 2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Mortgagor represents, warrants and covenants to Lender that: (a) Mortgagor has fee simple marketable tide to the Property and shall maintain the Property free of all liens, security Interests, encumbrances and claims except for this Mortgage and those described in Schedule B which is attached to this Mortgage and incorporated herein by reference, which Mortgagor agrees to pay and perform in a timely manner; (b) Mortgagor is in compliance in all respects with all applicable federal, state and local laws and regulations, including, without limitation, those relating to "Hazardous Materials", as defined herein, and other environmental matters (the "Environmental Laws'), and neither the federal government nor the state where the Property is located nor any other governmental or quasi governmental entity has flied a lien on the Property, nor ara iha;a any governmental, judicial or administrative actions with respect to environmental matters pending, or to the best of the Mortgagor's knowledge, threatened, which involve Mortgagor or the Property. Neither Mortgagor nor, to the best of Mortgagor's knowledge, any other party has used, generated, released, discharged, stored, or disposed of any Hazardous Materials, in connection with the Property or transported any Hazardous Materials to or from the Property. Mortgagor shall not commit or permit such actions to be taken in the future. The term "Hazardous Materials" shall mean any substance, material, or waste which is or becomes regulated by any governmental authority including, but not limited to: (i) petroleum; (ii) friable or nonfriable asbestos; (iii) polychlorinated biphenyls; (iv) those substances, materials or wastes designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act or listed pursuant to Section 307 of the Clean Water Act or any amendments or replacements to these statutes; (v) those substances, materials or wastes defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act or any amendments or replacements to that statute; and (vi) those substances, materials or wastes defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, or any amendments or replacements to that statute or any other similar state or federal statute, rule, regulation or ordinance now or hereafter in effect. Mortgagor shall not lease or permit the sublease of the Property to a tenant or subtenant whose operations may result in contamination of the Property with Hazardous Materials or toxic substances; (c) All applicable laws and regulations including, without limitation, the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (and all regulations promulgated thereunder) and all zoning and building laws and regulations relating to the Property by virtue of any federal, state or municipal authority with jurisdiction over the Property, presently are and shall be observed and complied with in all material respects, and all rights, licenses, permits, and certificates of occupancy (including but not limited to zoning variances, special exceptions for nonconforming uses, and final inspection approvals), whether temporary or permanent, which are material to the use and occupancy of the Property, presently are and shall be obtained, preserved and, where necessary, renewed; (d) Mortgagor has the right and is duly authorized to execute and perform its Obligations under this Mortgage and these actions do not and shall not conflict with the provisions of any statute, regulation, ordinance, rule of law, contract or other agreement which may be binding on Mortgagor at an time; n.,a PAGE .660 _.__ 1980V 410 .??? (e) No action or proceeding is or shall be p ..,Ding or threatened which might materially affect Mortga _, or the Property; and (f) Mortgagor has not violated and shall not violate any statute, regulation, ordinance, rule of law, contract or other agreement (i,iciuding, but not limited to, those governing Hazardous Materials) which might materially affect the Property or Lender's rights or interest in the Property pursuant to this Mortgage. 3. PRIOR MORTGAGES. Mortgagor represents and warrants that there are no prior mortgages or deeds of trust affecting any part of the Property except as set forth on Schedule B attached to this Mortgage which Mortgagor agrees to pay and perform in a timely manner. If there are any prior mortgages or deeds of trust then Mortgagor agrees to pay all amounts owed, and perform all obligations required, under such mortgages or deeds of trust and the indebtedness secured thereby and further agrees that a default under any prior mortgage or deed of trust shall be a default under this Mortgage and shall entitle Lender to all rights and remedies contained herein or in the Obligations to which Lender would be entitled in the event of any other default. 4. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN MORTGAGORS OR BORROWERS. In the event of a sale, conveyance, lease, contract for deed or transfer to any person of all or any part of the real property described in Schedule A, or any interest therein, or of all or any beneficial interest in Borrower or Mortgagor (if Borrower or Mortgagor is not a natural person or persons but is a corporation, limited liability company, partnership, trust, or other legal entity), Lender may, at its option, declare the outstanding principal balance of the Obligations plus accrued interest thereon immediately due and payable. At Lender's request, Mortgagor or Borrower, as the case may be, shall fumish a complete statement setting forth all of its stockholders, members or partners, as appropriate, and the extent of their respective ownership interests. 5. ASSIGNMENT OF RENTS. Mortgagor absolutely assigns to Lender all present and future rents, royalties, Income and profits which arise from the use or occupancy of all or any portion of the Property. Until Mortgagor is in default under this Mortgage or any of the Obligations, Mortgagor shall have a license to collect and receive rents, royalties, income and profits. Upon any default under this Mortgage or any of the Obligations, Lender may terminate Mortgagor's license without notice and may thereafter proceed to collect the rents, royalties, income, and profits with or without the appointment of a receiver. All rents, royalties, income and profits collected by Lender or a receiver will be applied first to pay all expenses of collection, then to the payment of all costs of operation and maintenance of the Property, and then to the payment of the Obligations secured by this Mortgage in the order determined by Lender in its sole discretion. 6. LEASES AND OTHER AGREEMENTS. Mortgagor shall not take or fail to take any action which may cause or permit the termination or the withholding of any payment in connection with any Lease or other agreement ("Agreement") pertaining to the Property. In addition, Mortgagor, without Lender's prior written consent, shall not: (a) collect any monies payable under any Agreement more than one month in advance; (b) modify any Agreement; (c) assign or allow a lien, security Interest or other encumbrance to be placed upon Mortgagor's rights, title and interest in and to any Agreement or the amounts payable thereunder; or (d) terminate or cancel any Agreement except for the nonpayment of any sum or other material breach by the other party thereto. If Mortgagor receives at any time any written communication asserting a default by Mortgagor under an Agreement or purporting to terminate or cancel any Agreement, Mortgagor shall promptly forward a copy of such communication (and any subsequent communications relating thereto) to Lender. All such Agreements and the amounts due to Mortgagor thereunder are hereby assigned to Lender as additional security for the Obligations. 7. COLLECTION OF INDEBTEDNESS FROM THIRD PARTY. Lender shall be entitled to notify or require Mortgagor to notify any third party (including, but not limited to, lessees, licensees, governmental authorities and insurance companies) to pay Lender any Indebtedness or obligation owing to Mortgagor with respect to the Property (cumulatively "Indebtedness") whether or not a default exists under this Mortgage. Mortgagor shall diligently collect the Indebtedness owing to Mortgagor from these third parties until the giving of such notification. In the event that Mortgagor possesses or receives possession of any instruments or other remittances with respect to the Indebtedness following the giving of such notification or if the instruments or other remittances constitute the prepayment of any Indebtedness or the payment of any insurance or condemnation proceeds, Mortgagor shall hold such instruments and other remittances in trust for Lender apart from its other property, endorse the instruments and other remittances to Lender, and immediately provide Lender with possession of the instruments and other remittances. Lender shall be entitled, but not required, to collect (by legal proceedings or otherwise), extend the time for payment, compromise, exchange or release any obligor or collateral, or otherwise settle any of the Indebtedness whether or not an Event of Default exists under this Mortgage. Lender shall not be liable to Mortgagor for any action, error, mistake, omission or delay pertaining to the actions described in this paragraph or any damages resulting therefrom. Notwithstanding the foregoing, nothing herein shall cause Lender to be deemed a mortgagee-in-possession. 8. USE AND MAINTENANCE OF PROPERTY. Mortgagor shall take all actions and make any repairs needed to maintain the Property in good condition. Mortgagor shall not commit or permit any waste to be committed with respect to the Property. Mortgagor shall use the Property solely in compliance with applicable law and insurance policies. Mortgagor shall not make any alterations, additions or improvements to the Property without Lender's prior written consent. Without limiting the foregoing, all alterations, additions and improvements made to the Property shall be subject to the beneficial interest belonging to Lender, shall not be removed without Lender's prior written consent, and shall be made at Mortgagor's sole expense. 9. LOSS OR DAMAGE. Mortgagor shall bear the entire risk of any loss, theft, destruction or damage (cumulatively "Lass or Damage") to the Property or any portion thereof from any cause whatsoever. In the event of any Loss or Damage, Mortgagor shall, at the option of Lender, repair the affected Property to its previous condition or pay or cause to be paid to Lender the decrease in the fair market value of the affected Property. 10. INSURANCE. The Property will be kept insured for its full insurable value (replacement cost) against all hazards including loss or damage caused by flood, earthquake, tomado and fire, theft or other casualty to the extent required by Lender. Mortgagor may obtain insurance on the Property from such companies as are acceptable to Lender in its sole discretion. The insurance policies shall require the insurance company to provide Lender with at least n/a-_ days' written notice before such policies are altered or cancelled in any manner. The insurance policies shall be endorsed with a standard mortgage clause in favor of Lender and provide that no act or omission of Mortgagor or any other person shall affect the right of Lender to be paid the insurance proceeds pertaining to the loss or damage of the Property. In the event Mortgagor fails to acquire or maintain insurance, Lender (after providing notice as may be required by law) may in its discretion procure appropriate insurance coverage upon the Property and the insurance cost shall be an advance payable and bearing interest as described in Paragraph 21 and secured hereby. Mortgagor shall furnish Lender with evidence of insurance indicating the required coverage. Lender may act as attomey-in-fact for Mortgagor in making and settling claims under insurance policies, cancelling any policy or endorsing Mortgagor's name on any draft or negotiable instrument drawn by any insurer. All such insurance policies shall be immediately assigned, pledged and delivered to Lender as further security for the Obligations. In the event of loss, Mortgagor shall immediately give Lender written notice and Lender is authorized to make proof of loss. Each insurance company is directed to make payments directly to Lender instead of to Lender and Mortgagor. Lender shall have the right, at its sole option, to apply such monies toward the Obligations or toward the cost of rebuilding and restoring the Property. Any amounts may at Lender's option be applied in the inverse order of the due dates thereof. 11. ZONING AND PRIVATE COVENANTS. Mortgagor shall not initiate or consent to any change in the zoning provisions or private covenants affecting the use of the Property without Lender's prior written consent. If Mortgagor's use of the Property becomes a nonconforming use under any zoning provision, Mortgagor shall not cause or permit such use to be discontinued or abandoned without the prior written consent of Lender. Mortgagor will immediately provide Lender with written notice of any proposed changes to the zoning provisions or private covenants affecting the PPerty. 12. CONDEMNATION. Mortgagor shall immediately provide Lender with written notice of any actual or threatened condemnation or eminent domain proceeding pertaining to the Property. All monies payable to Mortgagor from such condemnation or taking are hereby assigned to Lender and shall be applied first to the payment of Lender's attorneys' fees, legal expenses and other costs (Including appraisal fees) In connection with the condemnation or eminent domain proceedings and then, at the option of Lender, to the payment of the Obligations or the restoration or repair of the Property. 13. LENDER'S RIGHT TO COMMENCE OR DEFEND LEGAL ACTIONS. Mortgagor shall immediately provide Lender with written notice of any actual or threatened action, suit, or other proceeding affecting the Property. Mortgagor hereby appoints Lender as its attomey-in-fact to commence, intervene in, and defend such actions, suits, or other legal proceedings and to compromise or settle any claim or controversy pertaining thereto. Lender shall not be liable to Mortgagor for any action, error, mistake, omission or delay pertaining to the actions described in this paragraph or any damages resulting therefrom. Nothing contained herein will prevent Lender from taking the actions described in this paragraph in its own name. 14. INDEMNIFICATION. Lender shall not assume or be responsible for the performance of any of Mortgagor's obligations with respect to the Property under any circumstances. Mortgagor shall immediately provide Lender with written notice of and indemnity and hold Lender and its shareholders, directors, officers, employees and agents harmless from all claims, damages, liabilities (including attorneys' fees and legal expenses), causes of action, actions, suits and other legal proceedings (cumulatively "Claims") pertaining to the Property (Including, but not limited to, those involving Hazardous Materials). Mortgagor, upon the request of Lender, shall hire legal -counsel to defend Lender from such'Claims, and pay the attorneys' fees, legal expenses and other costs Incurred in connection therewith. In the alternative, Lender shall be entitled to employ its own legal counsel to defend such Claims at Mortgagor's cost. Mortgagor's obligation to indemnity Lender under this paragraph shall survive the termination, release or foreclosure of this Mortgage. 15. TAXES AND ASSESSMENTS. Mortgagor shall pay all taxes and assessments relating to Property when due and immediately provide Lender evidence of payment of same. Upon request of Lender, Mortgagor shall 'procure for Lender, at Mortgagor's expense, a real estate tax reporting service throughout the term of this Mortgage. Upon the request of Lender, Mortgagor shall deposit with Lender each month one-twelfth (1/12) of the estimated annual insurance premium, taxes and assessments pertaining to the Property. So long as there is no default, these amounts shall be applied to the payment of taxes, assessments and insurance as required on the Property. In the event of default, Lender shall have the right, at its sole option, to apply the funds so held to pay any taxes or against the Obligations. Any funds applied may, at Lender's option, be applied in reverse order of the due date thereof. 16. INSPECTION OF PROPERTY, BOOKS, RECORDS AND REPORTS.. Mortgagor shall allow Lender or its agents to examine and inspect the Property and examine, inspect and make copies of Mortgagor's books and records pertaining to the Property from time to time. Mortgagor shall provide any assistance required by Lender for these purposes. All of the signatures and infomtation contained in Mortgagor's books and records shall be genuine, true, accurate and complete in all respects. Mortgagor shall note the existence of Lender's beneficial interest in its books and records pertaining to the Property. Additionally, Mortgagor shall report, in a form satisfactory to Lender, such Information as Lender may request regarding Mortgagor's financial condition or the Property. The information shall be for such periods, shall reflect Mortgagor's records at such time, and shall be rendered with such frequency as Lender may designate. All information furnished, by Mortgagor to Lender shall be true, accurate and complete in all respects, and signed by Mortgagor if Lender requests. 17. ESTOPPEL CERTIFICATES. Within tan(. ays after any request by Lender, Mortgagor shall o- jr to Lender, or any intended transferee of Lender's rights with respect to the Obligations, a signed and acknowledged statement specifying: (a) the outstanding balance on the Obligations; and (b) whether Mortgagor possesses any claims, defenses, set-offs or counterclaims with respect to the Obligations and, 11 so, the nature of such claims, defenses, set-offs or counterclaims. Mortgagor will be conclusively bound by any representation that Lender may make to the intended transferee with respect to these matters in the event that Mortgagor fails to provide the requested statement in a timely manner. 1B. DEFAULT. Mortgagor shall be in default under this Mortgage in the event that Mortgagor, Borrower or any guarantor of the Obligation: (a) fails to pay any Obligation to Lender when due; (b) fails to perform any Obligation or breaches any warranty or covenant to Lender contained in this Mortgage or any other present or future agreement; (c) destroys, loses or damages the Property in any material respect or subjects the Property to seizure, confiscation, or condemnation; (d) seeks to revoke, terminate or otherwise limit its liability under any guaranty to Lender or any individual guarantor dies; (e) dies, becomes legally incompetent, is dissolved or terminated, becomes insolvent, makes an assignment for the benefit of creditors, fails to pay debts as they become due, files a petition under the federal bankruptcy laws, has an involuntary petition in bankruptcy filed in which Mortgagor, Borrower or any guarantor is named, or has property taken under any writ or process of court; (f) allows goods to be used, transported or stored on the Property, the possession, transportation, or use of which, is illegal; (g) allows any party other than Mortgagor, Borrower, or Guarantor to assume or undertake any Obligation without the written consent of Lender; or (h) causes Lender to deem itself insecure due to a significant decline in the value of the Property; or if Lender, in good faith, believes for any reason that the prospect of payment or performance is impaired. 19. RIGHTS OF LENDER ON DEFAULT. If there is a default under this Mortgage, Lender shall be entitled to exercise one or more of the following remedies without notice or demand (except as required by law): (a) to declare the Obligations immediately due and payable in full; (b) to collect the outstanding Obligations with or without resorting to judicial process; (c) to require Mortgagor to deliver and make available to Lender any personal property or Chattels constituting the Property at a place reasonably convenient to Mortgagor and Lender; (d) to enter upon and take possession of the Property without applying for or obtaining the appointment of a receiver and, at Lender's option, to appoint a receiver without bond, without first bringing suit on the Obligations and without otherwise meeting any statutory conditions regarding receivers, it being intended that Lender shall have this contractual right to appoint a receiver; (e) to employ a managing agent of the Property and let the same, in the name of Lender or in the name of Mortgagor, and receive the rents, incomes, issues and profits of the Property and apply the same, after payment of all necessary charges and expenses, on account of the Obligations; (f) to pay any sums in any form or manner deemed expedient by Lender to protect the security of this Mortgage or to cure any default other than payment of interest or principal on the Obligations; (g) to foreclose this Mortgage; (h) bid for and acquire the Property or any part thereof and, in lieu of a cash purchase, credit upon the amounts owed Mortgagor the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Lender is authorized to deduct under this Mortgage; (i) to foreclose this Mortgage, at its option, subject to the rights of any tenants of the Property, and the failure to make any tenants defendants to such proceedings and to foreclose their rights will not be asserted by Mortgagor as a defense to any proceedings instituted by Lender to collect the amounts secured hereby or any deficiency remaining unpaid after the sale of the Property. Further, it is expressly understood and agreed by Mortgagor that nothing herein contained shall prevent Lender from asserting In any proceeding disputing the amount of the deficiency or the sufficiency of any bid at such sale, that any tenancies adversely affect the value of the Property; (j) to set-off Mortgagor's Obligations against any amounts owed Mortgagor by Lender including, but not limited to, monies, instruments, and deposit accounts maintained with Lender or any currently existing or future affiliate of Lender; and (k) to exercise all other rights available to Lender under any other written agreement or applicable law. Lender's rights are cumulative and may be exercised together, separately, and in any order. In the event that Lender institutes an action seeking the recovery of any of the Property by way of a prejudgment remedy in an action against Mortgagor, Mortgagor waives the posting of any bond which might otherwise be required. Lender or Lender's designee may purchase the Property at any sale. The Property or any part thereof may be sold in one parcel, or In such parcels, manner or order as Lender in its sole discretion may elect, and one or more exercises of the power herein granted shall not extinguish or exhaust the power unless the entire Property is sold or the Obligations are paid in full. 20. SECURITY INTEREST UNDER THE UNIFORM COMMERCIAL CODE. This Mortgage shall be considered a financing statement and a fixture filing pursuant to the provisions of the Uniform Commercial Code (as adopted by the state where the Property is located) covering fixtures, chattels, and articles of personal property now owned or hereafter attached to or to be used in connection with the Property together with any and all replacements thereof and additions thereto (the "Chattels"), and Mortgagor hereby grants Lender a security interest in such Chattels. The debtor is the Mortgagor described above. The secured parry is the Lender described above. Upon demand, Mortgagor shall make, execute and deliver such security agreements (as such term is defined in said Uniform Commercial Code) as Lender at any time may deem necessary or proper or require to grant to Lender a perfected security interest in the Chattels, and upon Mortgagor's failure to do so, Lender is authorized to sign any such agreement as the agent of Mortgagor. Mortgagor hereby authorizes Lender to file financing statements (as such term is defined in saie Uniform Commercial Code) with respect to the Chattels, at any time, without the signature of Mortgagor. Mortgagor will, however, at any time upon request of Lender, sign such financing statements. Mortgagor will pay all filing fees for the filing of such financing statements and for the refiling thereof at the times required, in the opinion of Lender, by said Uniform Commercial Code. If the lien of this Mortgage is subject to any security agreement covering the Chattels, then in the event of any default under this Mortgage, all the right, title and interest of Mortgagor in and to any and all of the Chattels is hereby assigned to Lender, together with the benefit of any deposits or payments now or hereafter made thereof by Mortgagor or the predecessors or successors in title of Mortgagor in the Property. 21. REIMBURSEMENT OF AMOUNTS EXPENDED BY LENDER. Lender, .at Lender's option, may expend funds to perform any act required to be taken by Mortgagor or to exercise any right to remedy of Lender under this Mortgage (including but not limited to attorney's fees, legal expenses, payment of taxes, assessments, insurance premiums, funds for protection, preservation and maintenance of the Property or of the lien of this Mortgage or otherwise, expenses incurred by Lender by reason of default by Mortgagor or advances made under a construction loan to enable completion of the improvements for which the construction loan was originally made). Upon demand, Mortgagor shall immediately reimburse Lender for all such amounts expended by Lender together with interest thereon at the lower of the highest rate described in any Obligation or the highest rate allowed by law from the date of payment until the date of reimbursement. These sums shall be included in the definition of Obligations herein and shall be secured by the beneficial interest granted herein. If the Obligations are paid after the beginning of publication of notice of sale, as herein provided, or in the event Lender shall, at its sole option, permit Mortgagor to pay any part of the Obligations after the beginning of publication of notice of sale, as herein provided, then, Mortgagor shall pay on demand all expenses incurred by the Lender in connection with said publication, including reasonable attorneys' fees to the attorneys for the Lender, and this Mortgage shall be security for all such expenses and fees. 22. APPLICATION OF PAYMENTS. All payments made by or on behalf of Mortgagor may be applied against the amounts paid by Lender (Including attorneys' fees and legal expenses) in connection with the exercise of its rights or remedies described in this Mortgage and then to the payment of the remaining Obligations in whatever order Lender chooses. 23. POWER OF ATTORNEY. Mortgagor hereby appoints Lender as Its attomey-in-tact to endorse Mortgagor's name on all instruments and other documents pertaining to the Obligations or the Mortgage. In addition, Lender shall be entitled, but not required, to perform any action or execute any document required to be taken or executed by Mortgagor under this Mortgage. Lender's performance of such action or execution of such documents shall not relieve Mortgagor from any Obligation or cure any default under this Mortgage. All powers of attorney described in this Mortgage are coupled with an interest and are irrevocable. 24. SUBROGATION OF LENDER. Lender shall be subrogated to the rights of the holder of any previous lien, security interest or encumbrance discharged with funds advanced by Lender regardless of whether these liens, security interests or other encumbrances have been released of record. 25. COLLECTION COSTS. To the extent permitted by law, Mortgagor agrees to pay Lender's reasonable fees and costs, including, but not limited to, attorney's commission for collection, fees and costs of attorneys and other agents (including without limitation paralegals, clerks and consultants), whether or not such attorney or agent is an employee of Lender, which are inured by Lender in collecting any amount due or enforcing any right or remedy under this Mortgage, whether or not suit is brought, including, but not limited to, all fees and costs incurred on appeal, in bankruptcy, and for post-judgment collection actions. 26. PARTIAL RELEASE. Lender may release its interest in a portion of the Property by executing and recording one or more partial releases without affecting the lien or priority of this Mortgage or Lender's interest in the remaining portion of the Property. Nothing herein shall be deemed to obligate Lender to release any of its interest in the Property(except as required under Paragraph 34), nor shall Lender be obligated to release any part of the Property if Mortgagor is in default under this Mortgage. 27. MODIFICATION AND WAIVER. The modification or waiver of any of Mortgagor's Obligations or Lender's rights under this Mortgage must be contained in a writing signed by Lender. Lender may perform any of Borrower's or Mortgagor's Obligations, delay or fail to exercise any of its rights or accept payments from Mortgagor or anyone other than Mortgagor without causing a waiver of those Obligations or rights. A waiver on one occasion shall not constitute a waiver on any other occasion. Mortgagor's Obligations under this Mortgage shall not be affected if Lender amends, compromises, exchanges, fails to exercise, impairs or releases any of the Obligations belonging to any Mortgagor, Borrower or third party or any of its rights against any Mortgagor, Borrower or third party or any of the Property. Lender's failure to insist upon strict performance of any of the Obligations shall not be deemed a waiver, and Lender shall have the right at any time thereafter to insist upon strict performance. 28. SUCCESSORS AND ASSIGNS. This Mortgage shall be binding upon and inure to the benefit of Mortgagor and Lender and their respective successors, assigns, trustees, receivers, administrators, personal representatives, legatees and devisees. 29. NOTICES. Except as otherwise required by law, any notice or other communication to be provided under this Mortgage shall be in writing and sent to the parties at the addresses described in this Mortgage or such other address as the parties may designate in writing from time to time. Any such notice so given and sent by first class mail, postage prepaid, shall be deemed given the earlier of'three (3) days after such notice is sent or when received by the person to whom such notice is being given. All notices. given pursuant to 4-Pa:"Oons. Stat. Ann ff8143(d) must be addressed to Lender at the address described in this Mortgage. __. __. m •_._ . • •_ __. _ , . r,. ,e . ,, ,. aidox "PACE 662 30. SEVERABILITY. Whenever possible, provision of this Mortgage shall be interpreted soz:-. o be effective and valid under applicable state law. If any provision of this Mortgage violates the law or is unenforceable, the rest of the Mortgage shall continue to be valid and enforceable. 31. APPLICABLE LAW. This Mortgage shall be governed by the laws of the state where the Property is located. Unless applicable law provides otherwise, Mortgagor consents to the jurisdiction and venue of any court selected by Lender, in its sole discretion, located in that state. 32. NO THIRD-PARTY RIGHTS. No person is or shall be a third-party beneficiary of any provision of the Mortgage. All provisions of the Mortgage in favor of Lender are intended solely for the benefit of Lender, and no third parry shall be entitled to assume or expect that Lender will not waive or consent to the modification of any provision of the Mortgage, in Lender's sole discretion. 33. PRESERVATION OF LIABILITY AND PRIORITY. Without affecting the liability of Borrower, Mortgagor, or any guarantor of the obligations, or any othe{{.9pcson (except a person expressly released in writing) for the payment and performance of the Obligations, and without affecting the rights of Le del wit respect to any Property not expressly released in writing, and without impairing in any way the priority of this Mortgage over the interest of any pp?a?rsdn agquired or first evidenced by recording subsequent to the recording of this Mortgage, Lender may, either before or after the maturity of thdX76l1WQnV and without notice or consent: release any person liable for payment or performance of all or any part of the Obligations; make any t agfeerrient Weltering the terms of payment or performance of all or any part of the Obligations; exercise or refrain from exercising or waive any right or remedy that Lender may have under the Mortgage; accept additional security of any kind for any of the Obligations; or release or otherwise deal with any real Or personal property securing the Obligations. Any person acquiring or recording evidence of any interest of any nature in the Property shall be deemed, by acquiring such interest or recording any evidence thereof, to have consented to all or any such actions by Lender. 34. DEFEASANCE. This instrument is given on the express condition that if Mortgagor pays to Lender all sums secured by this Mortgage as provided in'ae Note, Mortgage and other loan documents and Mortgagor performs and complies with all agreements and conditions contained in said documents, then this Mortgage and the estate hereby granted shall cease and become void. Lender will execute and deliver to Mortgagor those documents that may be required to release this Mortgage of record. Mortgagor shall be responsible to pay any costs of recordation. 35. CONSTRUCTION LOAN. E This mortgage is a construction mortgage under the Uniform Commercial Code to secure an obligation incurred for the construction of an improvement on land, including the acquisition costs of land. This Mortgage secures a construction loan, including unpaid balances of present and future advances made for the erection, construction, alteration, reapair or completion of the Improvements for which the construction loan was originally made and it is subject to the terms of a construction loan agreement between Mortgagor and Lender, which is incorporated by reference and made a part hereof as if fully set forth herein. An materials, equipment or supplies used or Intended for use in the construction, development, or operation of the Property, whether stored on or off the Property, shall also be subject to the lien of this Mortgage. 36. OPEN-END MORTGAGE. This Is an Open-End Mortgage and shall be entitled to all benefits as such under 42 Pa.C.S.A. Section 8143 (the "Open-End Mortgage Statute"). (a) If this Mortgage secures a line of credit, construction loan, or other credit transaction pursuant to which advances are made from time to time by Lender to Mortgagor, and Lender receives written notice pursuant to Section 8143(b) from the holder of (i) a lien or encumbrance on the Property subordinate to the lien of this Mortgage, or (ii) a mechanics lien for labor performed or to be performed or materials furnished or to be furnished for the erection, construction, alteration or repair of any part of the Property, then, notwithstanding any provisions to the contrary contained in any note, agreement or other loan document, Mortggagor agrees and acknowledges that Lender shall not be required to make any further advances (Lender hereby being released from all liability for failure to make such advances) if Lender determines in its sole discretion that any such advance could be construed (1) as an unobiigated advance under Section 8143(b); or (ii) as being other than for the sole purpose of paying toward all or part of the cost of completing any erection, construction, alteration or repair of any part of the Property, the financing of which, in whole or part, this Mortgage was given to secure. (b) If Mortgagor should at any t me elect to limit the indebtedness secured by this Mortgage pursuant to Section 8143(c), Mortgagor agrees that notice of such election shall (i) not be effective until it is served upon Lender in accordance with the requirements of Section 8143 and all requirements for the giving of notice under the loan documents; (Ii) automatically release Lender from all obligation to make any further advances under the loan documents notwithstanding anything to the contrary contained in such notice or the loan documents; (Ill) constitute, at Lender's election, a default under this Mortgage and the other loan documents; and (iv) not be effective to limit Mortgagor's liability for payment and performance of the Obligations for which Mortgagor Is responsible under this Mortgage and the loan documents (including, without limitation, all indemnification agreements) whether arising prior or subsequent to the date of such notice. 37. WAIVER OF HOMESTEAD. Mortgagor hereby waives all homestead exemptions in the Property to which Mortgagor would otherwise be entitled under any applicable law. 38. MISCELLANEOUS. Mortgagor and Lender agree that time is of the essence. Mortgagor waives presentment, demand for payment, notice of dishonor and protest, all procedural errors, defects and Imperfections in any proceeding igsifhrted by Lender under any Note, this Mortgage or other loan documents and any rights to send a written notice pursuant to 42 Pa. Cons. Stat. Ann. 8143(c). All references to Mortgagor In this Mortgage shall include all persons signing below. If there is more than one Mortgagor, their Obligations shall be joint and several. This Mortgage represents the complete integrated understanding between Mortgagor and Lender pertaining to the terms and conditions hereof. 39. JURY TRIAL WAIVER. MORTGAGOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY CIVIL ACT10N ARISING OUT OF, OR BASED UPON, THIS MORTGAGE. 40. ADDITIONAL TERMS: WARNING: READ BEFORE SIGNING - YOU ARE WAIVING IMPORTANT RIGHTS IF CHECKED, CONFESSION OF JUDGMENT IN EJECTMENT. MORTGAGORHEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, TO APPEAR AS ATTORNEY FOR MORTGAGOR,AND ALL PERSONS CLAIMING UNDER OR THROUGH MORTGAGOR, AND TO CONFESS JUDGMENT AND TO SIGN AN AGREEMENT FOR ENTERING AN AMICABLE ACTION IN EJECTMENT FOR POSSESSION OF THE PROPERTY AGAINST SUCH PERSONS IN FAVOR OF LENDER. SUCH PROCEEDINGS MAY BE BROUGHT BEFORE OR AFTER THE INSTITUTION OF PROCEEDINGSTO FORECLOSE THIS MORTGAGEOR TO ENFORCE THE OBLIGATIONS, OR AFTER A SHERIFF'S SALE OR JUDICIAL SALE OR OTHER FORECLOSURESALE OF THE PROPERTYIN WHICH LENDER IS THE SUCCESSFUL BIDDER. THIS MORTGAGE,OR A COPY VERIFIED BY AFFIDAVIT, WILL BE A SUFFICIENT WARRANT AND A WRIT OF POSSESSION MAY IMMEDIATELY ISSUE FOR POSSESSION OF THE PROPERTY, WITHOUT ANY PRIOR WRIT OR PROCEEDING AND WITHOUT ANY STAY OF EXECUTION. LENDER SHALL HAVE THE RIGHT TO BRING ONE OR MORE AMICABLE ACTIONS, AS PROVIDED ABOVE, FOR THE SAME, OR ANY SUBSEQUENT DEFAULT, REGARDLESS OF WHETHER ANY PRIOR ACTION WAS DISCONTINUED OR POSSESSION OF THE PROPERTY REMAINED IN OR WAS RESTOREDTO MORTGAGOR. THE AUTHORIZATIONTO OBTAIN POSSESSION AND CONFESS JUDGMENT IS AN ESSENTIAL PART OF THE REMEDIES FOR ENFORCEMENT OF THIS MORTGAGEAND THE OBLIGATIONS AND SHALL SURVIVE ANY EXECUTION SALE TO LENDER. NO PROVISION OF THIS PARAGRAPHSHALL BE CONSTRUED AS A WAIVER OF MORTGAGOR'SRIGHT70 ANY NOTICE AND/OR HEARING REQUIRED UNDER APPLICABLE LAW WITH RESPECT TO THE EXECUTION OF THE CONFESSED JUDGMENT. I THIS SECTION DOES NOT APPLY TO A CONSUMER CREDIT TRANSACTION, EVEN IF CHECKED. Mortgagor acknowledges that Mortgagor has read, understands, and agrees to the terms and conditions of this Mortgage, and acknowledges receipt of an exact copy of same. IN WITNESS WHEREOF, Mortgagor has caused this instrument to be executed as a sealed instrument this 15t11 day of March, 2001 MORTGA Z ag t, LLC MORTGAGOR: W&Z Management, LLC seal sear Mari Zar a i Helena A Williams V MORTGAGO MORTGAGOR: MORTGAGOR: MORTGAGOR: MORTGAGOR: MORTGAGOR: ? Isean g ,,ixnlunlAAfl nay EM kA-2 sy NOTABiAL SEAL COMMONWEALTH OF. PENNSYLVANIA STACY M. STENCE, Notary i .jhc COUNTY OF pAUP FFI n SS Hummelstown Boro, Dauphin County My.Commission Expires Rib. Z9, ?AOi> On this, the `5 14- day of n0.YCh , aGCD ? , before me, the undersigned officer, personally appeared rte 1 o_(A,Ar) -2- 7,p-rre,; o_n6 la elena A- 1UD'.1 tor's known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that he/she executed the same for the purposes herein contained. ,,N,,MC1 r. IN WITNESS WHEREOF, I hereunto set my hand and official seal. My Commission Expires: d?a3?f? Title COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF On the day of - and County aforesaid, personally appeared of , a so, executed the foregoing instrument for the purposed therein contained by signing the name of the by himself/herself as such officer and desired that the same might be recorded as such. WITNESS my hand and seal the day and year aforesaid. before me, the subscriber, a Notary Public in and for the Commonwealth who acknowledged himself/herself to be a/the and that he/she, as such officer, being authorized to do Notary Public My commission expires: CERTIFICATE OF RESIDENCE I, , do hereby certify that the correct address of the within-named Lender is 2796 Old Post Road Harrisburg, PA 17110 Witness my hand this day of Agent of Lender SCHEDULE A Property Situate on 608 Market St., New Cumberland, Cumberland County, Pa. SCHEDULE 8 THIS DOCUMENT WAS PREPARED BY: Community Banks, N.A. gOaKisBOPAGE ,664 W 111, 410 EXHIBIT A - ALL those certain lots or tracts of land, together with the improvements located thereon, situate in the Martin Addition to the Borough of New Cumberland, Cumberland County, Pennsylvania, bounded and described as follows, to wit: BEGINNING at a point on the southeast comer of Market and Seventh Street; THENCE South fourteen degrees thirty minutes East (S 14° 30' E) and along the western line Market Street, a distance of two hundred twenty-seven and eighty-nine hundredths (227.89) feet to a point, THENCE South seventy-two degrees eight minutes forty-seven seconds West (S 72° 08' 47"W) a distance of one hundred and two and forty-nine hundredths (102.49) feet to a point; THENCE South seventeen degrees fifty-one minutes thirteen seconds East (S 17° 51' 13"E) a distance of fifty (50) feet to a point on the northern line of Sixth (6th) Street; THENCE South seventy-two degrees eight minutes forty-seven seconds West (S 72° 08' 47" W) and along the northern line of Sixth (6`h) Street, a distance of sixty-four and twenty-four hundredths (64.24) feet to a point at the intersection of Sixth (6th) street with Maple Alley; THENCE North seventeen degrees fifty-one minutes thirteen seconds West (N 17° 51' 13" W) and along the eastern line of Maple Alley, a distance of one hundred seventy-four and fifty hundredths (174.50) feet to a point; THENCE North seventy-two degrees eight minutes forty-seven seconds East (ITT 72° 08' 47" E) and along the southern line of Seventh (7th) Street, a distance of sixty (60) feet to a point, the point and place of BEGINNING. UNDER AND SUBJECT to all easements, rights-of-way, restrictions, matters and conditions appearing in prior instruments of record. HAVING thereon erected a brick building. The within description is prepared from a survey prepared by Ernest J. Walker, Professional Engineer, dated September 13, 1972. /C tt!ils --clay of VMA Of 0 y BOOK ?rp k? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by CIVIL DIVISION Merger to COMMUNITY BANKS, N.A., Plaintiff, NO.: Vs. W&Z MANAGEMENT, LLC, Defendant. VERIFICATION I, Alison Fair, on behalf of Susquehanna Bank, Successor by Merger to Community Banks, N.A., depose and say subject to the penalties of 18 Pa.C.S.A., sec.4904 relating to unsworn falsification to authorities that the facts set forth in the foregoing pleading are true and correct to the best of my information, knowledge and belief. ?2L- Alison Fair SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny RAnderson t-ILED-COI FIC Sheriff r Of TH ???r,19 ?i Ln+r+Lea*I??? Jody S Smith `?! 00 Chief Deputy v y!'i Richard W Stewart CUMBERLA Solicitor OFF' F .,.F ....=.RlFFEWdSYLY,"AA Susquehanna Bank Case Number vs. 2011-3609 W & Z Management, LLC SHERIFF'S RETURN OF SERVICE 04/15/2011 01:40 PM - Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on April 15, 2011 at 1340 hours, she served a true copy of the within Complaint in Mortgage Foreclosure, upon the within named defendant, to wit: W & Z Management, LLC, by making known unto Jessica Juliana, Teacher for Kidz Castle, current occupant at 608 Market Street, New Cumberland, Cumberland County, Pennsylvania 17070 its contents and at the same time handing to her personally the said true and correct copy of the same. Request for service at 920 Linda Lane, Camp Hill, Pennsylvania 17011 is currently vacant and for sale. t MICHELLE GUTSHALL, DEPUTY SHERIFF COST: $60.00 April 18, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF ic; GouitySulte- Shenff. Teleosatt_ Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by CIVIL DIVISION Merger to COMMUNITY BANKS, N.A., ci Plaintiff, NO.: 11-3609 MW c. =,n vs. : :zm rte- -o rn ; te W&Z MANAGEMENT, LLC, r - z o <Q >n + ?-, Defendant. E5 rM MOTION FOR SUMMARY JUDGMENT PURSUANT TO Pa.R.C.P. 1035.2 Susquehanna Bank, Successor by Merger to Community Banks, N.A. ("Plaintiff'), by its attorneys, James, Smith, Dietterick & Connelly, LLP, files the following Motion for Summary Judgment Pursuant to Pa. R.C.P. 1035.2: Plaintiff commenced the above-captioned action by filing a Complaint in Mortgage Foreclosure on or about April 13, 2011. In its Complaint, Plaintiff alleges that Defendant W&Z Management, LLC is in default under the terms of a Commercial Variable Rate Promissory Note, dated March 15, 2001, in favor of Plaintiff in the original principal amount of $265,000.00 ("Note") and a Mortgage securing said Note on real property and improvements thereon commonly known as 608 Market Street, New Cumberland, PA 17070 ("Premises"). 2. Defendant filed an Answer to Plaintiff s Complaint on or about May 31, 2011. 3. Defendants' Answer admits the following relevant material facts: a) The identities of the parties (Complaint at ¶¶ 1-2); b) On or about March 15, 2001, Defendant executed a Note in favor of Plaintiff in the original principal amount of $265,000.00 (Complaint at ¶ 3); C) On or about March 15, 2001, as security for payment of the aforesaid Note, Defendant made, executed and delivered to Plaintiff a Mortgage in the original principal amount of $265,000.00 on the Premises, with said Mortgage being recorded in the Office of the Recorder of Deeds of Cumberland County on March 19, 2001, in Mortgage Book Volume 1680, Page 660 (Complaint at ¶ 4); and d) Defendant is the record and real owners of the Premises (Complaint at ¶ 5). 4. Pennsylvania Rule of Civil Procedure 1029 (b) states "[a]verments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof.. shall have the effect of an admission." 5. In their Answer, Defendant generally denies their default as a conclusion of law (Answer at ¶ 6). 6. In their Answer, Defendants generally deny that the Notice of Homeowners' Emergency Mortgage Assistance Act of 1983 and the Notice of Intention to Foreclose Mortgage were not required to be sent as conclusions of law (Answer at ¶¶ 7-8). 7. In their Answer, Defendant also generally denies the amount due and owing Plaintiff as a conclusion of law, demanding strict proof thereof at trial (Answer at ¶ 9). 8. Defendants have not offered any proof in support of these denials. 9. To further support the averments in its Complaint, Plaintiff has filed a sworn affidavit, which is attached hereto as Exhibit "A" and incorporated by reference. In the Affidavit, an authorized representative of the Plaintiff certifies that the Defendant is in default under the terms of the Note and Mortgage, and further certifies the amount due and owing Plaintiff. The testimony is based on the Loan History Report, a business record of Plaintiff maintained in the normal course of business. 10. According to the Loan History Report, the amount due and owing by Defendant to Plaintiff is as follows: Principal $ 165,593.95 Interest through 3/16/2011 $ 2,020.82 Late Charges $ 486.45 Satisfaction Fee $ 40.00 Attorney's Fees $ 1,300.00 Title Costs $ 410.00 TOTAL $ 169,851.22 plus interest on the principal sum ($165,593.95) from March 16, 2011 at the rate of $24.15 per diem, plus additional late charges, and costs (including additional escrow advances), additional attorneys' fees and costs and for foreclosure and sale of the mortgaged premises. 11. Defendant has failed to raise a genuine issue of material fact in their Answer and have failed to offer a defense to their default, therefore, pursuant to Pa.R.C.P. 1035.2, Plaintiff is entitled to summary judgment as a matter of law. WHEREFORE, pursuant to Pa.R.C.P. 1035.2, Plaintiff respectfully requests this Honorable Court grant it's Motion for Summary Judgment and enter Judgment in Mortgage Foreclosure in its favor and against Defendant W&Z Management, LLC in the total amount of $169,593.95 plus interest, additional late charges, attorneys' fees and costs, and for foreclosure and sale of the Mortgaged Premises. Respectfully submitted, JAMES, SMITH, & CONNELLY, By: Scott A. ie a cR, Esquire Pa. I.D. # 55650 Ralph M. Salvia, Esquire Pa. I.D. #202946 P.O. BOX 650 Hershey, PA 17033 (717) 533-3280 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by CIVIL DIVISION Merger to COMMUNITY BANKS, N.A., Plaintiff, NO.: 11-3609 Vs. W&Z MANAGEMENT, LLC, Defendant. AFFIDAVIT IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT I, '??Z Awe V YiCe eles'd/ rt for Plaintiff, being first duly sworn, say of my own personal knowledge that: I am a 1/ cd 1?1L5,`GfGa'i? and a duly authorized representative of Plaintiff in the above-captioned action. 2. This action is brought to foreclose on a Mortgage, which Mortgage secured a Note dated March 15, 2001, executed by Defendants in favor of Plaintiff/Plaintiff s predecessor in interest, in the original principal amount of $265,000.00 ("Note") 3. As security for payment of the aforesaid Note, Defendant executed a Mortgage, dated of even date and even amount. A true and correct copy of said Mortgage is attached as Exhibit "A" to Plaintiff's Complaint. 4. The Loan History, with regard to the loan upon which judgment is requested against the Defendant ("Loan History") is a record of Plaintiff maintained in the regular course of business reflecting all payments made on the account, along with the corresponding balance, and accurately reflects the amount due and owing by Defendant, and further documents Defendant is in default under the terms of the Mortgage. By reason of the foregoing facts, and after allowing Defendant all proper deductions, credits, and set-offs, the following is due and owing by Defendant: Principal $ 155,864.55 Interest to 6/2/2011 $ 3,849.74 Late Charges $ 778.32 Satisfaction Fee $ 40.00 Attorneys' Fees & Costs $ 4,567.00 TOTAL $ 165,099.61 with interest on the principal sum ($155,864.55) from June 2, 2011 at the rate of $22.73 per diem. , plus additional late charges, and costs (including additional escrow advances), additional attorneys' fees and costs and for foreclosure and sale of the mortgaged premises. , ??V 'a-a' aG, , - -- BY: bemy e . m 1!P. SWORN TO AND SUBSCRIBED BEFORE ME THIS_4;`?' DAY OF 3 W) E , 2011. y `D 11EANuP A R'Y PUBLIC PUe. dY' COMMISSION EXPIRES: 41a71,tI4 COMMISSION Z "s C) : EXPIRES y . 4/27/20144 * 00\3 `; 1711101111111WO IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by CIVIL DIVISION Merger to COMMUNITY BANKS, N.A., Plaintiff, NO.: 11-3609 VS. W&Z MANAGEMENT, LLC, Defendant. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the Motion For Summary Judgment was served on the following this 1 day of July, 2011, via First Class U.S. Mail, Postage Pre-Paid: Robert E. Chernicoff, Esq. 2320 North Second Street Harrisburg, PA 17110 JAMES, SMIT?,fTERICK & CONN LL By: \1 I Scott A. DiettPa. ID # 55650 Ralph M. Salvi , Pa. ID # 202946 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 rr _UF Robert E. Chernicoff, Esquire 0 T 0 T PA Supreme Court ID #23380f Aft t Nicholas A. Fanelli, Esquire ?, ?, ?3? ??: 16 PA Supreme Court ID# 308136 - "BERLANO CUNNINGHAM & CHERNICOFF, P.C. PENNsYLVAI TY 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 IN THE COURT OF COMMON PLEAS OF CUMBERLAND, COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by Merger to COMMUNITY BANKS, N.A., CIVIL ACTION Plaintiff NO. 11-3609 V. W&Z MANAGEMENT, LLC, Defendant DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO Pa.R.C.P. 1035.2 NOW COMES the Defendant, W&Z Management, LLC, by and through its attorneys, Cunningham & Chernicoff, P.C., and states as its Answer to Plaintiff's Motion for Summary Judgment ("Motion"), as follows: 1. Admitted. 2. Admitted. 3. Defendant admits the averments of paragraph 3(a)-(d) of Plaintiff s Motion. 4. Admitted. 5. Denied as stated. Defendant denies the characterization of paragraph 6 of Defendant's Answer to Plaintiff s Complaint as a general denial. By way of further reply, Defendant's Answer, in paragraph 6, stated: This allegation is a conclusion of law to which no response is required. To the extent that a response is judicially deemed to be required, it is specifically denied. By way of further answer, Defendants believe, and therefore aver, that all payments made to date may not have been properly credited and a strict accounting thereof is hereby demanded, if relevant, at the time of trial. Thus, Defendant adequately denied Plaintiff's averment of a default on the promissory note. 6. Denied as stated. Defendant denies the characterization and implication by Plaintiff of Defendant's answer as a general denial; to the contrary, paragraphs 7 and 8 of Defendant's Answer to Plaintiff's Complaint were adequate under Pa.R.C.P. 1029(a). 7. Denied as stated. Defendant denies the characterization and implication by Plaintiff of Defendant's answer as a general denial; to the contrary, paragraph 9 of Defendant's Answer to Plaintiff's Complaint was adequate under Pa.R.C.P. 1029(a). By way of further reply, at the time the Answer was filed, Defendant was making payments on account of the promissory note which were not credited to Defendant's account. 8. Admitted; by way of further reply, Plaintiff has conducted no discovery which would have requested any proof in support of the denials lodged by Defendant in its Answer. 9. Defendant admits that paragraph 9 of the Motion incorporates by reference the Affidavit of a purported authorized representative of Plaintiff. The remaining averments of this paragraph are denied. It is specifically denied that the Affidavit is sufficient at law to warrant any ruling in favor of Plaintiff's Motion. By way of further reply, Defendant made (and Plaintiff accepted) payments (not in full satisfaction of the accelerated amount owed) on April 14, 2011 and May 13, 2011. Such payments brought the loan current as of June, 2011. 2 10. Defendant is without knowledge or information sufficient to form a belief as to the accuracy of the purported Loan History Report (which Plaintiff does not attach to the Motion) and therefore specifically denies the accuracy thereof. By way of further reply, Plaintiff has not established that the attorney's fees sought in this matter are fair and reasonable considering the circumstances of the matter. 11. The averments of this paragraph constitute a conclusion of law to which no response is required; if, and to the extent a response is judicially deemed to be required, Defendant specifically denies that Plaintiff is entitled to judgment pursuant to Pa.R.C.P. 1035.2. WHEREFORE, Defendant, W & Z Management, LLC respectfully requests that this Honorable Court dismiss Plaintiff's Complaint with prejudice and grant Defendant such other relief as may be just and proper. Respectfully submitted, CUNNINGHAM & CHERNICOFF, P.C. By: Robert E. Chernicoff, Esquire PA ID No: 23380 Nicholas A. Fanelli, Esquire PA ID No: 308136 2320 North Second Street Harrisburg, PA 17110 Date: August -,,.2, 2011 Telephone: (717) 238-6570 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND, COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by Merger to COMMUNITY BANKS, N.A., CIVIL ACTION Plaintiff V. W&Z MANAGEMENT, LLC, Defendant NO. 11-3609 CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant with the law firm of Cunningham & Chernicoff, P.C., certify a true and correct copy of the DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO Pa.R.C.P. 1035.2 will be served by first class U.S. Mail and/or electronic means on the following: Scott A. Dietterick Ralph M. Salvia P.O. Box 650 Hershey, PA 17033 CUNNINGHAM & CHERNICOFF, P.C. Date: August ,? , 2011 Julieanne Ametrano F:\HOlne\NFANELLI\Documents\W&Z Management, LLC\Answer to Motion for q-ry Judgrnentwpd 4 CA, # FILED-OFFICE OF THE PROTHONOTARY PRAECIPE FOR LISTING CASE FOR ARGUMENT 1I AUG 24 AM 1I: 06 (Must be typewritten and submitted in duplicate) CUMBERLAND COUNTY TO THE PROTHONOTARY OF CUMBERLAND COUNTY: PENNSYLVANIA Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) SUSQUEHANNA BANK, successor by merger to COMMUNITY BANKS, NA (Plaintiff) vs. W&Z MANAGEMENT, LLC (Defendants) No. 11-3609 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Motion for Summary Judgment 2. Identify counsel who will argue case: (a) for plaintiff: Kimberly A. Bonner, Esquire Address : P.O. Box 650, Hershey, PA 17033 (b) for defendant : Robert Cherincoff, Esquire Address: 2320 North Second Street, Harrisburg, PA 17110 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court date: OCTOBER 7, 2011 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by CIVIL DIVISION Merger to COMMUNITY BANKS, N.A., Plaintiff, NO.: 11-3609 VS. : W&Z MANAGEMENT, LLC, Defendant. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the Argument Praecipe was served on the following this relay of August, 2011, via First Class U.S. Mail, Postage Pre-Paid: Robert E. Chernicoff, Esq. 2320 North Second Street Harrisburg, PA 17110 JAMES, 277 & CO By: Scott A. Dietterick, Esquire Pa. ID # 55650 Kimberly A. Bonner, Esquire Pa. ID # 89705 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 SUSQUEHANNA BANK, Successor by Merger to COMMUNITY BANKS, N.A., Plaintiff vs. W & Z MANAGEMENT, LLC, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 11-3609 CIVIL IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J. AND EBERT, J. ORDER AND NOW, this day of January, 2012, it appearing that the plaintiff may be entitled to summary judgment on the question of default but that a hearing is necessary to determine the precise amount of the indebtedness as well as the amount and reasonableness of the attorney's fees sought by the plaintiff, and that all of the issues in this case may be expeditiously dealt with in a single proceeding before a judge sitting without a jury in accordance with Pa.R.C.P. 1150, the motion of the plaintiff for summary judgment is DENIED. Scott A. Dietterick, Esquire Ralph M. Salvia, Esquire For the Plaintiff ? Robert E. Chernicoff, Esquire a/ Nicholas A. Fanelli, Esquire For the Defendant BY THE COURT, c Kevin A. ess, P. J. ,nCD C - :Imp ? r-- rI . <> r X ° z ? " c=> nc w °rn C :rlm ecp; e5 y,? ? ,"I,Pd 1111 a eA PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) c7 -04 C ca TO THE PROTHONOTARY OF CUMBERLAND COUNTY -n 'rt Please list the following case: xr w ? for JURY trial at the next term of civil court. ?X for trial without a jury. r X cn CAPTION OF CASE (entire caption must be stated in full) Susquehanna Bank, successor by merger to Community Banks, NA (Plaintiff) vs. W&Z Management, LLC vs. (Defendant) (other) The trial list will be called on and Trials commence on Pretrials will be held on (Briefs are due 5 days before pretrials No. ti-3(oo9 Indicate the attorney who will try case for the party who files this praecipe: Scott A. Dietterick, Esquire/Kimberly A. Bonner, Esquire Term Indicate trial counsel for other parties if known: Robert Chernicoff, Esquire/Nick Fanelli, Esquire This case is ready for trial. Date: 2/13/12 Signed: Print Name: Kimberly A. Bonner -------------------------------: -- C (check one) _' X? Civil Action - Law - rv ? Appeal from arbitration Attorney for: Plaintiff Susquehanna Bank Cn! -r rrrv- F "g ?' M c:? 4-n = C. r --rr= 401R. r) 5 P o ATTY & 1080 & a.'7 i'09(? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by CIVIL DIVISION Merger to COMMUNITY BANKS, N.A., Plaintiff, NO.: 11-3609 VS. ; W&Z MANAGEMENT, LLC, Defendant. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the Praecipe Listing Case for Trial was served on the following this 13th day of February, 2012, via First Class U.S. Mail, I q Postage Pre-Paid: Robert E. Chernicoff, Esq. Nick Fanelli, Esq. 2320 North Second Street Harrisburg, PA 17110 JAMES, SMITH, DIETTERICK & CONNELLY, L By: Scott A. Dietterick, Esquire Pa. ID # 55650 Kimberly A. Bonner, Esquire Pa. ID #89705 Ralph M. Salvia, Esquire Pa. ID # 202946 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 SUSQUEHANNA BANK, successor by merger to COMMUNITY BANKS, NA, Plaintiff V. W&Z MANAGEMENT, LLC, Defendant CIVIL ACTION - LAW CIVIL TERM NO: 2011 6309 11- 09 IN RE: NON-JURY TRIAL ORDER OF COURT AND NOW, this 12TH day of March,, 2012 the case having been assigned to this Court for the scheduling of the Non-Jury Trial, it t is hereby Ordered and Directed that the Non-Jury Trial will be held on Monday, 9 April 2012 at 9:30 a.m. in Courtroom No. 6 of the Cumberland County Courthouse. Distribution List: ./Scott Dietterick, Esq. Kimberly A. Bonner, Esq. P. 0. Box 650 00pie calla Hershey, PA 17033 /Robert Chernicoff, Esq. /Nicholas A. Fanelli, Esq. 2320 North Second Street Harrisburg, PA 17110 sr &VIM IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT By the Court Thomas A. Placey C.P.J. -- c n Court Administration -- in (din IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by CIVIL DIVISION Merger to COMMUNITY BANKS, N.A., „,. Plaintiff, NO.: 11-3609 vs. F•s ; -t N LLC W&Z. MANAGEMENT < , , . -, . CD C) . Defendant '' . CONSENT JUDGMENT IN MORTGAGE FORECLOSURE AND NOW, comes the Plaintiff, by and through counsel, and Defendant and its counsel, who acknowledge their full understanding of the legal consequences of the entry of this judgment, and who consent knowingly and voluntarily, hereby consent to the entry of Judgment in Mortgage Foreclosure in favor of Plaintiff and against Defendant, as of March 15, 2012 in the amount of $154,094.97, which judgment amount is broken down as follows: Principal Balance Accrued Interest Satisfaction Fee Appraisal Fee Leizal Fees Total : $138,351.63 9,976.59 40.00 1,500.00 4.226.75 $ 154,094.97 with interest thereon from plus interest on the principal sum ($138,351.63) from March 15, 2012, at the contractual rate, plus additional costs (including advances for taxes and hazard insurance), additional attorneys' fees and costs, and for foreclosure and sale of the Mortgaged Premises commonly known as 608 Market Street, New Cumberland, PA 17070. Plaintiff agrees not to file a Robert Cher Counsel for Writ of Execution to She s SalWDefenda '& Z Y: Premises for LLC Defendant -e- I k By: Kimberly A. Bonner, Esquire Counsel for Plaintiff PA ID #89705 P.O. Box 650, Hershey, PA 17033 (717) 533-3280 amt46soPd 11? T7 b IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by Merger to COMMUNITY BANKS, N.A., Plaintiff, Vs. W&Z MANAGEMENT, LLC, Defendant. _ _, r"o CIVIL DIVISION M -1 ,, = 0 :7" NO.: 11-3609 : .=C) «Sa)?S S if pe,,, aMy PRAECIPE TO SETTLE, DISCONTINUE AND END JAMES, SMITH, DIETT I & CONNELLY, LLP By: Scott A. Dietterick, Esquire Pa. I.D. # 55650 Kimberly A. Bonner, Esquire Pa. ID # 89705 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 To the Prothonotary: Please mark the above-captioned matter settled, discontinued & ended. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by CIVIL DIVISION Merger to COMMUNITY BANKS, N.A., Plaintiff, NO.: 11-3609 vs. W&Z MANAGEMENT, LLC, Defendant. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe to Settle, Discontinue & End was served on the following this 13th day of April, 2012, via First Class U.S. Mail, Postage Pre-Paid: Robert E. Chernicoff, Esq. 2320 North Second Street Harrisburg, PA 17110 JAMES, SMITH & CONNELLY, By: Scott A. Die Brick, Esquire Pa. ID # 55650 Kimberly A. Bonner, Esquire Pa. ID # 89705 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SUSQUEHANNA BANK, Successor by CIVIL DIVISION Merger to COMMUNITY BANKS, N.A., Plaintiff, NO.: 11-3609 VS. W&Z MANAGEMENT, LLC, Defendant. ORDER OF COURT APPROVING CONSENT JUDGMENT IN MORTGAGE FORECLO URE AND NOW, this day of /ApekL' , 2012, upon review of the Consent Judgment in Mortgage Foreclosure agreed to by the parties, it is hereby ORDERED that the Consent Judgment is approved, and the bi 2012, it cancelled. V XirnberLq A- Smner, '1 ©bert P- . 0-her n iCoFP, Esq.. ( P6 41 d in 19, Thomas A. Placey J. Common Pleas Judge 27• ? "11 r -x ? ZO 3 ? ]sue co --t' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA, • ' e" •-s=-. SUSQUEHANNA BANK, Successor by CIVIL DIVISION -0:L1 E; Merger to COMMUNITY BANKS, N.A., cnr - Plaintiff, NO.: 11-3609 vs. acs ©` -7 -, W&Z MANAGEMENT, LLC, --I r Defendant. CONSENT JUDGMENT IN MORTGAGE FORECLOSURE AND NOW, comes the Plaintiff, by and through counsel, and Defendant and its counsel. who acknowledge their full understanding of the legal consequences of the entry o1 this judgment, and who consent knowingly and volun(arily, hereby consent to the entry of Judgment in Mortgage Foreclosure in favor of Plaintiff against broken D fdown as endant, as of March 15, 2012 in the amount of $154,094.97, which judgment amount Principal Balance $138,351.63 Accrued Interest 9,976.59 Satisfaction Fee 40.00 Appraisal Fee 1,500.00 Le al Fees 4,226.75 Total: $ 154,094.97 with interest thereon from plus interest on the principal sum ($138,351.63) from March 15, 2012. at the contractual rate, plus additional costs (including advances for taxes and hazard insurance), additional attorneys' fees and costs, d Nfor ewoCumberlandaPA 17070e Mortgaged Premises commonly known as 608 Market Street, 'a (-eft Pr-, c(?c ?/?t' tin Plaintiff agrees not to fii -"_;1 of Execution to list the (i Cumberland County Prothonotary One Courthouse Square Suite 100 Carlisle, PA 177.013 eG .?. C\1 3- CZff v U.S. POSTAGE'} R `` ± AEW ? "'r, ZIP 17013 $ 01 02 1 YV 0001368848APR IPV J .,I44 \\ I, ?b ? W&Z Management LLC 920 Linda Lane >,: Camp Hill, P " -- " t9 t {; z. x i r t 6 I DE 71" N R r 3 _ G - N' Q T 8 9 SC_: 1703 sy . y R.r -r k!a ? GTff y'.'?..t 6t,?l4fitligl11i9liiiilill3i1?61i{ISlilitlliill?lEll96i3klt?l?