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HomeMy WebLinkAbout11-5626METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkellyAmette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A., Plaintiff V. MOUNTAIN AIRE MECHANICAL CONTRACTING, INC., Defendant ?= iLLC?-t?F r iCE ,?= i ?s? t F??3?'NONOTAR? 2011 gl 12 PM 2:03 C,UM6ERLANO COU"" nStJSYLVAtA1A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 11-60? V1 1 CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of Plaintiff and against Defendant as follows: Principal: $29,991.02 Interest as of 6/24/11: $650.75 Late fees as of 6/24/11: $147.80 Attorneys Commission (15%) $4,618.44* TOTAL $35,408.01 *Only reasonable attorneys fees will be collected by the attorney. a04 sa?so Pd a1? c? ?°a 3yY ? aUrWY ma big Aj le Interest at the per diem rate of $3.84, attorneys fees and costs of this action continue to accrue. Respectfully submitted, METTE, EVANS & WOODSIDE 4 Heather Z. Kel , Esquire, Es uire I.D. No. 86291 Appearing herein for Defendant 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Date: July 11, 2011 ,LED,-OFFICE O" 12 F`'i 2.03 AND COUNTY /{ \jA Iii l 4- METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire, Esquire I.D. No. 86291 3401 North Front Street P.O. BOX 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkellykmette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A., Plaintiff V. MOUNTAIN AIRE MECHANICAL CONTRACTING, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 11- S LQa-l?Q l,l V COMPLAINT IN CONFESSION OF JUDGMENT NOW COMES, Metro Bank, f/k/a Commerce Bank/Harrisburg, N.A. ("Plaintiff'), by its attorneys files the following Complaint in Confession of Judgment: 1. Plaintiff is a Pennsylvania state charted bank with an address at 3801 Paxton Street, Harrisburg, PA 17111. 2. Defendant is Mountain Aire Mechanical Contracting, Inc. located at 87 Hoover Road, Carlisle, PA 17013. 3. On September 17, 2008, Defendant executed a Note in the original principal amount of Fifty Thousand Dollars and 00/100 ($50,000.00) in favor of Plaintiff, which was modified by a Note Modification Agreement dated January 28, 2011 (the Note and Note Modification Agreement are attached hereto as Exhibit "A" and are referred to collectively as the "Note"). 4. Defendant has defaulted under the Note by failing to make payments when due. 5. By correspondence dated June 15, 2011, Plaintiff made a written demand on Defendant for payment. A true and correct copy of the June 15, 2011 correspondence and an executed Certified Mail Receipt are attached hereto as Exhibit "B." 6. Defendants have failed to make payment upon demand. 7. The Note was executed in connection with a commercial transaction. 8. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 9. The Note has not been assigned. 10. Judgment has not been entered on the Note in any jurisdiction. 11. The entire remaining indebtedness evidenced by the Note is due and payable, and Defendant's total indebtedness to Plaintiff as of June 24, 2011 is $35,408.01, which is computed as follows: Principal: $29,991.02 Interest as of 6/24/11: $650.75 Late fees as of 6/24/11: $147.80 Attorneys Commission (15%) $4,618.44* TOTAL $35,408.01 *Only reasonable attorneys fees will be collected by the attorney. Interest at the per diem rate of $3.84, attorneys fees and costs of this action continue to accrue. WHEREFORE, on the basis of the confession of judgment clauses contained in the Note, Plaintiff demands judgment in its favor and against Defendant, in the amount of $35,408.01 plus continuing interest at the per diem rate of $3.84, attorneys fees and costs. Respectfully submitted, METTE, EVANS & WOODSIDE Heather Z. Kelly`,'Esqufre, Esquire I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Date: July 11, 2011 VERIFICATION I, John T. Robertson, have read the foregoing Complaint in Confession of Judgment and verify that the facts set forth therein are true and correct according to the best of my knowledge, information and belief and that I am authorized to execute this Verification on behalf of the bank. I understand that any false statement made herein is subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. Tmv-? Q-"h. Jo T Robertson Vic esident - Metro Bank Dated: 1141 f/// 611"R / rm- 5 r t1S Small &nlas Administratim U.S. Small Business Administration NOTE SBA Loan # 32025450-02 SBA Loan Name Mountain Aire Mechanical Contracting, Inc. Date September 17, 2008 Loan Amount 50,000.00 Interest Rate Floating at New York Prime + 2.25%, to adjust calendar quarterly Borrower Mountain Aire Mechanical Contracting, Inc. Operating Company Lender COMMERCE BANKMARRISBURG I . PROMISE TO PAY: In return for the Loan, Borrower promises to pay to the order of Lender the amount of Fifty Thousand and no/100 interest on the unpaid principal balance, and all other amounts required by this Note. 2. DEFINITIONS: "Collateral" means any property taken as security for payment of this Note or any guarantee of this Note. "Guarantor" means each person or entity that signs a guarantee of payment of this Note. "Loan" means the loan evidenced by this Note. "Loan Documents" means the documents related to this loan signed by Borrower, any Guarantor, or anyone who pledges collateral. "SBA" means the Small Business Administration, an Agency of the United States of America. Dollars, SBA Form 147 (06/03/02) Version 4.1 Page 1/6 Wolters Kluwer Financial Services, St. Cloud, MN 3. PAYMENT TERMS: Borrower must make all payments at the place Lender designates. The payment terms for this Note are: 1.a Maturity: This Note will mature in 5 years from date of Note. 2.oRepayment Terms: Lender must insert onto SBA Note, Form 147, to be executed by Borrower, the following terms, without modification. Lender must complete all blank terms on the Note at time of closing: The interest rate on this Note will fluctuate. The initial interest rate is 7.25% per year. This initial rate is the prime rate on the date SBA received the loan application, plus 2.25%. The initial interest rate must remain in effect until the first change period begins. Borrower must pay principal and interest payments of $995.93 every month, beginning one month from the month this Note is dated; payments must be made on the seventeenth calendar day in the months they are due. Lender will apply each installment payment first to pay interest accrued to the day Lender receives the payment, then to bring principal current, then to pay any late fees, and will apply any remaining balance to reduce principal. The interest rate will be adjusted every calendar quarter (the "change period"). The "Prime Rate" is the prime rate in effect on the first business day of the month in which an interest rate change occurs, as published in the Wall Street Journal on the next business day. The adjusted interest rate will be 2.25% above the Prime Rate. Lender will adjust the interest rate on the first calendar day of each change period. The change in interest rate is effective on that day whether or not Lender gives Borrower notice of the change. Lender must adjust the payment amount at least annually as needed to amortize principal over the remaining term of the note. If SBA purchases the guaranteed portion of the unpaid principal balance, the interest rate becomes fixed at the rate in effect at the time of the earliest uncured payment default. If there is no uncured payment default, the rate becomes fixed at the rate in effect at the time of purchase. SBA Form 147 (06/03/02) Version 4.1 Page 216 Wolters Kluwer Financial Services, St. Cloud, MN 4. DEFAULT: Borrower is in default under this Note if Borrower does not make a payment when due under this Note, or if Borrower or Operating Company: A. Fails to do anything required by this Note and other Loan Documents; B. Defaults on any other loan with Lender; C. Does not preserve, or account to Lender's satisfaction for, any of the Collateral or its proceeds; D. Does not disclose, or anyone acting on their behalf does not disclose, any material fact to Lender or SBA; E. Makes, or anyone acting on their behalf makes, a materially false or misleading representation to Lender or SBA; F. Defaults on any loan or agreement with another creditor, if Lender believes the default may materially affect Borrower's ability to pay this Note; G. Fails to pay any taxes when due; H. -Becomes. the subject of a proceeding under any bankruptcy or insolvency law; 1. Has a receiver or liquidator appointed for any part of their business or property; I. Makes an assignment for the benefit of creditors; K. Has any adverse change in financial condition or business operation that Lender believes may materially affect Borrower's ability to pay this Note; L. Reorganizes, merges, consolidates, or otherwise changes ownership or business structure without Lender's prior written consent; or M. Becomes the subject of a civil or criminal action that Lender believes may materially affect Borrower's ability to pay this Note. 5. LENDER'S RIGHTS IF THERE IS A DEFAULT: Without notice or demand and without giving up any of its rights, Lender may: A. Require immediate payment of all amounts owing under this Note; B. Collect all amounts owing from any Borrower or Guarantor; C. File suit and obtain judgment; D. Take possession of any Collateral; or E. Sell, lease, or otherwise dispose of, any Collateral at public or private sale, with or without advertisement. 6. LENDER'S GENERAL POWERS: Without notice and without Borrower's consent, Lender may: A. Bid on or buy the Collateral at its sale or the sale of another lienholder, at any price it chooses; B. Incur expenses to collect amounts due under this Note, enforce the terms of this Note or any other Loan Document, and preserve or dispose of the Collateral. Among other things, the expenses may include payments for property taxes, prior liens, insurance, appraisals, environmental remediation costs, and reasonable attorney's fees and costs. If Lender incurs such expenses, it may demand immediate repayment from Borrower or add the expenses to the principal balance; C. Release anyone obligated to pay this Note; D. Compromise, release, renew, extend or substitute any of the Collateral; and E. Take any action necessary to protect the Collateral or collect amounts owing on this Note. SBA Form 147 (06103102) Version 4.1 Page 3/6 Wolters Kluwer Financial Services, St. Cloud, MN 7. WHEN FEDERAL LAW APPLIES: When SBA is the holder, this Note will be interpreted and enforced under federal law, including SBA regulations. Lender or SBA may use state or local procedures for filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability. As to this Note, Borrower may not claim or assert against SBA any local or state law to deny any obligation, defeat any claim of SBA, or preempt federal law. 8. SUCCESSORS AND ASSIGNS: Under this Note, Borrower and Operating Company include the successors of each, and Lender includes its successors and assigns. 9. GENERAL PROVISIONS: - - - - A. All individuals and entities signing this Note are jointly and severally liable. B. Borrower waives all suretyship defenses. C. Borrower must sign all documents necessary at any time to comply with the Loan Documents and to enable Lender to acquire, perfect, or maintain Lender's liens on Collateral. D. Lender may exercise any of its rights separately or together, as many times and in any order it chooses. Lender may delay or forgo enforcing any of its rights without giving up any of them. E. Borrower may not use an oral statement of Lender or SBA to contradict or alter the written terms of this Note. F. If any part of this Note is unenforceable, all other parts remain in effect. G. To the extent allowed by law, Borrower waives all demands and notices in connection with this Note, including presentment, demand, protest, and notice of dishonor. Borrower also waives any defenses based upon any claim that Lender did not obtain any guarantee; did not obtain, perfect, or maintain a lien upon Collateral; impaired Collateral; or did not obtain the fair market value of Collateral at a sale. SBA Form 147 (06/03102) Version 4.1 Page 416 Wolters Kluwer Financial Services, St. Cloud, MN 10. STATE-SPECIFIC PROVISIONS: WARRANT OF AUTHORITY TO CONFESS JUDGEMENT. Upon default, in addition to all other remedies and rights available to you, by signing below I irrevocably authorize the prothonotary, clerk, or any attorney to appear in any court of record having jurisdiction over this matter and to confess judgment against me at any time without stay of execution. I waive notice, service of process, and process. I agree and understand that judgment may be confessed against me for any unpaid principal, accrued charges due on this Note, plus collection costs and reasonable attomeys' fees up to 15 percent of the judgement. The exercise of the power to confess judgment will not exhaust this warrant of authority to understand that my property may be seized without prior notice to satisfy the debt owed. I knowingly, intentionally, and voluntarily waive any and all constitutional rights I have to pre-deprivation notice and hearing under federal and state laws and fully understand the consequences of this waiver. By signing immediately below, 1 agree to the terms of the CONFESSION OF JUDGEMENT section. (AW914 __&? Je a ettys, President IInW DATE SBA Form 147 (06103102) Version 4.1 Page 516 Wolters Kluwer Financial Services, St. Cloud, MN 1 1. BORROWER'S NAME(S) AND SIGNATURE(S): By signing below, each individual or entity becomes obligated under this Note as Borrower. Mountain Aire Mechanical Contracting, Inc. Jeffrey R. 9/17/08 SBA Form 147 (06/03/02) Version 4.1 Page 6/6 Wolters Kluwer Financial Services, St. Cloud, MN NOTE MODIFICATION AGREEMENT THIS NOTE MODIFICATION AGREEMENT, made and entered into as of this 28st day of January, 2011, by and between Metro Bank (hereinafter called "Lender"), having its principal place of business at 3801 Paxton Street, Harrisburg Pennsylvania 17111, and Mountain Aire Mechanical Contracting, Inc. (hereinafter called "Borrower"). W ITN ESS ETH: WHEREAS, Borrower executed and delivered to Lender a Note dated September 17, 2008 (the "Note"), in the original amount of $50,000.00, which evidences a loan (#32025450-02) by the Lender to the Borrower; and WHEREAS, the Lender and Borrower mutually agree to modify the terms of the Note to extend the maturity date and re-amortize the loan balance, as hereinafter provided. NOW THEREFORE, for value received and in consideration of the mutual covenants and agreements hereinafter contained and intending to be legally bound hereby, Lender and Borrower covenant and agree to amend and modify the Note heretofore described as follows: Effective November 17, 2010 the balance of the Loan shall be re-amortized based on a ninety-four (94) month term with a ninety-four (94) month amortization. Principal and interest payments in the amount of $262.67 per month will commence December 17, 2010 and shall continue throughout the remaining term of the loan. The maturity date shall be September 17, 2018. 2. Upon the execution and delivery of this Note Modification Agreement, Borrower shall pay the current principal due for November 17, 2010 in the amount of $397.78., Reference to Lender: This Note Modification Agreement is being made by Metro Bank formerly known as Commerce Bank/Harrisburg, N.A. Confession of Judgment: BORROWER AGREES THAT THE CONFESSION OF JUDGMENT CLAUSE CONTAINED IN THE NOTE DATED SEPTEMBER 17, 2008, REMAINS IN FULL FORCE AND EFFECT AND LENDER'S RIGHTS THEREUNDER CONTINUE WITH THE SIGNING OF THIS NOTE MODIFICATION AGREEMENT. THE DISCLOSURE FOR CONFESSION OF JUDGMENT DATED SEPTEMBER 17, 2008 REMAINS IN FULL FORCE AND EFFECT AND IS DEEMED TO BE REAFFIRMED WITH THE SIGNING OF THIS NOTE MODIFICATION AGREEMENT. BOTH THE NOTE AND THE DISCLOSURE FOR CONFESSION OF JUDGMENT ARE ATTACHED HERETO AS EXHIBIT A. Except to the extent specifically set forth herein, all of the terms, conditions, covenants and agreements contained in the Note shall remain in full force and effect. Borrower hereby ratifies and affirms each and every term and condition, obligation, and covenant of Borrower under the Note in every respect and shall pay and discharge the indebtedness evidenced by the Note in accordance with its terms as modified herein. This Modification shall not altar, diminish, or otherwise affect the lien of the Mortgage or the collateral therein described. NOTE MODIFICATION AGREEMENT (cont'd) IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. Witness: Borrower: MOUNTAIN AIRE MECHANICAL CONTRACTING, INC. BY: Je y Ws, sident /* 7p:> METRO BANK 3801 Paxton Street 888.937.0004 Harrisburg, PA 17111 mymetrobank.com June 15, 2011 VIA REGULAR AND CERTIFIED MAIL, RETURN RECEIPT REQUESTED Mountain Aire Mechanical. Jeffrey R. Gettys Tammy Gettys Contracting, Inc. 87 Hoover Road 87 Hoover Road Attn: Jeffrey R. Gettys Carlisle, PA 17013 Carlisle, PA 17013 87 Hoover Road Carlisle, PA 17013 Re: Indebtedness of Mountain Aire Mechanical ("Borrower") to Commerce Bank/Harrisburg, NA now Metro Bank ("Bank") as guarantied by Jeffrey R. Gettys and Tammy Gettys (collectively, the "Guarantors") Dear Mrs. Gettys: Responsibility for the loan arrangements between the Bank and the Borrower has been transferred. All communications from the Borrower and/or Guarantors to the Bank are to be addressed to Collection Officer Melissa Auman, Commercial Asset Recovery Specialist, P O Box 4999, Harrisburg PA 17111, until further written notice from the Bank. Reference is made to the Promissory Note of the Borrower in the original principal amount of $50,000, dated September 17, 2008 and payable to the order of Metro Bank. The Borrower is in default under the Term Note in that the Borrower has failed to, among other things, make payments when due (the "Term Note Default'), This letter constitutes formal notice to the Borrower and Guarantors of the occurrence of the Term Note Default. As a result of the Borrower's default, the Bank has elected to exercise its option to declare the entire unpaid principal balance of the Promissory Note and all accrued and unpaid interest to be immediately due and payable. As of June 15, 2011, there is unpaid, due and owing to the Bank under the Promissory Note the amount of $ 30,748.90. Demand is hereby made for the immediate payment in full of all amounts which are due and which may become due under the Promissory Note. The balance due under the Term Note may increase or decrease as a result of the receipt of payments and the proceeds of collateral securing the Term Note and the accrual of interest, late charges, costs of collection and other fees, costs and expenses. Therefore, immediately prior to remitting payment, please contact Melissa Auman at (717) 412-6317 to obtain final payoff amounts and remittance instructions. Nothing contained in this letter constitutes a waiver or release of any of the terms or provisions of the Term Note and all other notes, instruments or agreements between the Bank and the Borrower and/or Guarantors (the "Loan Documents"). The Bank reserves all rights and remedies available to it under the Loan Documents and applicable law, all of which are expressly hereby reserved. No discussions between the Bank and the Borrower and/or Guarantors concerning this notification, other loan relationships between the Bank and the Borrower and/or Guarantors, or any other matter shall imply an agreement on the part of the Bank to waive any of its rights and remedies or to forbear from taking any action authorized by the Loan Documents or applicable law, whether or not such discussions may be continuing. Any communications with any representative of the Bank, whether oral or written, will be mere discussions only and will not in any way commit or be binding upon the Bank unless reduced to a writing signed by an authorized officer of the Bank. Such communications will not represent any course of dealing, and in no manner shall you rely in any way on any such discussions unless such communications are reduced to a writing signed by an authorized officer of the Bank. The acceptance of any partial payment of any of the obligations of the Borrower and/or Guarantors to the Bank shall not be deemed a waiver or limitation of any of the Bank's rights reserved herein as to the full amount of any unpaid balance. Any delay or forbearance by the Bank in the enforcement or pursuit of any of its rights and remedies under the Loan Documents or applicable law shall not constitute a waiver thereof, nor shall it be a bar to the exercise of the Bank's rights or remedies at a later date. Should you have any questions, please do not hesitate to contact me Sincerely, METRO BANK Melissa Auman Commercial Asset Recovery Specialist METRO BANK 3801 Paxton Street 888.937.0004 Harrisburg, PA 17111 mymetrobank.com June 15, 2011 VIA REGULAR AND CERTIFIED MAIL, RETURN RECEIPT REQUESTED Mountain Aire Mechanical. Jeffrey R. Gettys Tammy Gettys Contracting, Inc. 87 Hoover Road 87 Hoover Road Attn: Jeffrey R. Gettys Carlisle, PA 17013 Carlisle, PA 17013 87 Hoover Road Carlisle, PA 17013 Re: Indebtedness of Mountain Aire Mechanical ("Borrower") to Commerce Bank/Harrisburg, NA now Metro Bank ("Bank") as guarantied by Jeffrey R. Gettys and Tammy Gettys (collectively, the "Guarantors") Dear Mr. Gettys: Responsibility for the loan arrangements between the Bank and the Borrower has been transferred. All communications from the Borrower and/or Guarantors to the Bank are to be addressed to Collection Officer Melissa Auman, Commercial Asset Recovery Specialist, P O Box 4999, Harrisburg PA 17111, until further written notice from the Bank. Reference is made to the Promissory Note of the Borrower in the original principal amount of $50,000, dated September 17, 2008 and payable to the order of Metro Bank. The Borrower is in default under the Term Note in that the Borrower has failed to, among other things, make payments when due (the "Term Note Default'). This letter constitutes formal notice to the Borrower and Guarantors of the occurrence of the Term Note Default. As a result of the Borrower's default, the Bank has elected to exercise its option to declare the entire unpaid principal balance of the Promissory Note and all accrued and unpaid interest to be immediately due and payable. As of June 15, 2011, there is unpaid, due and owing to the Bank under the Promissory Note the amount of $ 30,748.90. Demand is hereby made for the immediate payment in full of all amounts which are due and which may become due under the Promissory Note. The balance due under the Term Note may increase or decrease as a result of the receipt of payments and the proceeds of collateral securing the Term Note and the accrual of interest, late charges, costs of collection and other fees, costs and expenses. Therefore, immediately prior to remitting payment, please contact Melissa Auman at (717) 412-6317 to obtain final payoff amounts and remittance instructions. Nothing contained in this letter constitutes a waiver or release of any of the terms or provisions of the Term Note and all other notes, instruments or agreements between the Bank and the Borrower and/or Guarantors (the "Loan Documents'). The Bank reserves all rights and remedies available to it under the Loan Documents and applicable law, all of which are expressly hereby reserved. No discussions between the Bank and the Borrower and/or Guarantors concerning this notification, other loan relationships between the Bank and the Borrower and/or Guarantors, or any other matter shall imply an agreement on the part of the Bank to waive any of its rights and remedies or to forbear from taking any action authorized by the Loan Documents or applicable law, whether or not such discussions may be continuing. Any communications with any representative of the Bank, whether oral or written, will be mere discussions only and will not in any way commit or be binding upon the Bank unless reduced to a writing signed by an authorized officer of the Bank. Such communications will not represent any course of dealing, and in no manner shall you rely in any way on any such discussions unless such communications are reduced to a writing signed by an authorized officer of the Bank. The acceptance of any partial payment of any of the obligations of the Borrower and/or Guarantors to the Bank shall not be deemed a waiver or limitation of any of the Bank's rights reserved herein as to the full amount of any unpaid balance. Any delay or forbearance by the Bank in the enforcement or pursuit of any of its rights and remedies under the Loan Documents or applicable law shall not constitute a waiver thereof, nor shall it be a bar to the exercise of the Bank's rights or remedies at a later date. Should you have any questions, please do not hesitate to contact me Sincerely, METRO BANK Melissa Auman Commercial Asset Recovery Specialist METRO BANK 3801 Paxton Street 888.937.0004 Harrisburg, PA 17111 mymetrobank.com June 15, 2011 VIA REGULAR AND CERTIFIED MAIL, RETURN RECEIPT REQUESTED Mountain Aire Mechanical. Jeffrey R. Gettys Tammy Gettys Contracting, Inc. 87 Hoover Road 87 Hoover Road Attn: Jeffrey R. Gettys Carlisle, PA 17013 Carlisle, PA 17013 87 Hoover Road Carlisle, PA 17013 Re: Indebtedness of Mountain Aire Mechanical ("Borrower") to Commerce Bank/Harrisburg, NA now Metro Bank ("Bank") as guarantied by Jeffrey R. Gettys and Tammy Gettys (collectively, the "Guarantors' ) Dear Mr. Gettys: Responsibility for the loan arrangements between the Bank and the Borrower has been transferred. All communications from the Borrower and/or Guarantors to the Bank are to be addressed to Collection Officer Melissa Auman, Commercial Asset Recovery Specialist, P O Box 4999, Harrisburg PA 17111, until further written notice from the Bank. Reference is made to the Promissory Note of the Borrower in the original principal amount of $50,000, dated September 17, 2008 and payable to the order Of Metro Bank. The Borrower is in default under the Term Note in that the Borrower has failed to, among other things, make payments when due (the "Term Note Default'). This letter constitutes formal notice to the Borrower and Guarantors of the occurrence of the Term Note Default. As a result of the Borrower's default, the Bank has elected to exercise its option to declare the entire unpaid principal balance of the Promissory Note and all accrued and unpaid interest to be immediately due and payable. As of June 15, 2011, there is unpaid, due and owing to the Bank under the Promissory Note the amount of S 30,748.90. Demand is hereby made for the immediate payment in full of all amounts which are due and which may become due under the Promissory Note. The balance due under the Term Note may increase or decrease as a result of the receipt of payments and the proceeds of collateral securing the Term Note and the accrual of interest, laze charges, costs of collection and other fees, costs and expenses. Therefore, immediately prior to remitting payment, please contact Melissa Auman at (717) 412-6317 to obtain final payoff amounts and remittance instructions. Nothing contained in this letter constitutes a waiver or release of any of the terms or provisions of the Term Note and all other notes, instruments or agreements between the Bank and the Borrower and/or Guarantors (the "Loan Documents"). The Bank reserves all rights and remedies available to it under the Loan Documents and applicable law, all of which are expressly hereby reserved. No discussions between the Bank and the Borrower and/or Guarantors concerning this notification, other loan relationships between the Bank and the Borrower and/or Guarantors, or any other matter shall imply an agreement on the part of the Bank to waive any of its rights and remedies or to forbear from taking any action authorized by the Loan Documents or applicable law, whether or not such discussions may be continuing. Any communications with any representative of the Bank, whether oral or written, will be mere discussions only and will not in any way commit or be binding upon the Bank unless reduced to a writing signed by an authorized officer of the Bank. Such communications will not represent any course of dealing, and in no manner shall you rely in any way on any such discussions unless such communications are reduced to a writing signed by an authorized officer of the Bank. The acceptance of any partial payment of any of the obligations of the Borrower and/or Guarantors to the Bank shall not be deemed a waiver or limitation of any of the Bank's rights reserved herein as to the full amount of any unpaid balance. Any delay or forbearance by the Bank in the enforcement or pursuit of any of its rights and remedies under the Loan Documents or applicable law shall not constitute a waiver thereof, nor shall it be a bar to the exercise of the Bank's rights or remedies at a later date. Should you have any questions, please do not hesitate to contact me Sincerely, METRO BANK Melissa Auman Commercial Asset Recovery Specialist m ? o . 4 • m mII^ m^ a U. LLg LL < m a W m ag ms > o ai t ar ¢ (U O V) ZI Z c ?E : UE 0 or0 U 0 ¢ _ m ;a m Z5 6290 O9E9 'GOOD 09L2 OTT. ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece; or on the front if space permits. 1. Article Addressed to: Jeffrey R. Gettys 87 Hoover Rd. Carlisle, PA 17013 A. Sig re X ? Agent ? Addre Bye glvd y (Printed e) C. Date of Deli D. Is delivery Odress differ6nt from item 1? ? Yes If YES, enter delivery address below: ? No 3. Service Type .1911cerned Mail ? Express Mail ? Registered ? Return Receipt for Merchar ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 7010 2780 0001 6380 0829 PS Form 3811, February 2004 Domestic Return Receipt 10259502-M ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. • c ?. r0 C O . U ra v ? m v • LL mrn m' $1? OJ r-1 ` 01 m & and © G cc: v > ' 0 E U r ga: E m¢ ro > O Gi i C t? _ ? E °E • ¢ 102 a .`c h C O N f\ fC 00 u 2'1 90 O9E9 TODD 0 922 OTOZ .O wsr M r4 69 & of O • m m LL ? m LL ' LL. m lu Q a I S 5 rB ` 0 v a S U ¢ 0 ;E O`c 9E O N 771 1= E _ dH r< ° 92 r d? ro r? M 1- 00 U w cc w 5090 0 9E9 TDO O 092.2 OM 1. Article Addressed to: Mountain Aire Mechanical Contracting, Jeffrey R. Gettys 87 Hoover Rd. (arlisle, PA 17013 A Signature X ? ? Agent ? Addre B. Received b Prrntgd N) C./Date rof Deli D. Is Is d itfferefrt from Item 1? ? Yes If YES, enter delivery address below: ? No 3 rype CertHied Mail ? Express Mall ,0111 ? Registered ? Return Receipt for Merchan ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 7010 2780 0001 6380 0812 PS Form 3811, February 2004 Domestic Return Receipt ¦ Complete items 1, 2, and 3. Also complete A. item 4 if Restricted Delivery is desired. X ¦ Print your name and address on the reverse so that we can return the card to you. B ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: Tammy Gettys 87 Hoover Rd. Carlisle, PA 17013 102595.02-M ? bent ? Addre rte of Deli D. Is delivery a9fiess differeht from item 1? ? Yes ff YES, enter delivery address below: ? No 3. Service Type oWCertifled mail ? Express mail ? Registered ? Return Receipt for Merchan ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? yes 2 7010 2780 0001 6380 0805 PS Form 3811, February 2004 Domestic Return Receipt 10259504-M. iLFD-OFFICE i.j "? i F PR%0TH0N0TARY 2011 JUL 12 PM 2' U 4 t;L PENNs LDVAN A TY METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkellykmette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A., Plaintiff V. MOUNTAIN AIRE MECHANICAL CONTRACTING, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. Jl 5 ??, ?N; AFFIDAVIT OF DEFENDANT'S LAST KNOWN ADDRESS The undersigned is the Attorney for Plaintiff, and according to the best of her information and belief, the last known address employed by the Defendant is: Mountain Aire Mechanical Contracting, Inc. 87 Hoover Road Carlisle, PA 17013 mac. Heather Z. Kell Attorney for Metro Bank, f/k/a Commerce Bank/Harrisburg, N.A. Date: July 11, 2011 539421v1 t.'W?R??NON41ARt 011.1L 12 P 2:?} 2 ^1?MB?RLAND G?UK?Y METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkelly a,mette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A., Plaintiff V. MOUNTAIN AIRE MECHANICAL CONTRACTING, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. , ' S Y f Notice Under Pa R.C.P. 2958.1 Of Judament And Execution Thereon Notice of Defendant's Rights TO: Mountain Aire Mechanical Contracting, Inc. 87 Hoover Road Carlisle, PA 17013 A judgment in the amount of $35,408.01 has been entered against you in favor of the plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. Is You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATON ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 1-800-990-9108 Respectfully submitted, METTE, EVANS & WOODSIDE 7 Heather Z. Kelly, Esquire I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Date: July 11, 2011 = } E?D-0FFtCE_ +.. r,. ,: s r Ti f?0THONOIAR"` 417 r i 2011 JUL 12 PM 2' 013 ,C,UMBERLANO COUNTY PENNSYLVANIA METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkellykmette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A., Plaintiff V. MOUNTAIN AIRE MECHANICAL CONTRACTING, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. I s- 6 a (? NOTICE UNDER 42 Pa. C.S.A. 2737.1 OF RIGHT TO RECOVER ATTORNEY FEES AND COSTS AND PROCEDURE TO FOLLOW TO STRIKE OFF OR OPEN A CONFESSED JUDGMENT TO: Mountain Aire Mechanical Contracting, Inc. 87 Hoover Road Carlisle, PA 17013 Pursuant to 42 Pa.C.S.A. 2737. 1, you are hereby notified that a debtor who has been incorrectly identified and had a confession of judgment entered against him shall be entitled to costs and reasonable attorney fees as determined by the court. Pursuant to 42 Pa.C.S.A. § 273 you are hereby notified of the instructions regarding the procedure to follow to strike off or open a confessed judgment under Pennsylvania Rule of Civil Procedure 2959, which is reproduced in full, on the following page. Respectfully submitted, METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire o I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Telephone: (717) 232-5000 Attorneys for Plaintiff Date: July 11, 2011 PENNSYLVANIA RULE OF CIVIL PROCEDURE 2959 STRIKING OFF OR OPENING JUDGMENT; PLEADINGS AND PROCEDURE (a)(1) Relief from a judgment by confession shall besought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440. (e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury, the court shall open the judgment. (f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. (g) (1) A judgment shall not be stricken or opened because of a creditor's failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor. (2) Subdivision (g)(1) shall apply to (1) judgment entered prior to the effective date of a subdivision (g) which have not been stricken or opened as of the effective date and (2) judgment entered on or after the effective date. METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire, Esquire Attorney I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkelly ,mette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A., Plaintiff V. MOUNTAIN AIRE MECHANICAL CONTRACTING, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. NOTICE OF ENTRY OF JUDGMENT TO: Mountain Aire Mechanical Contracting, Inc. 87 Hoover Road Carlisle, PA 17013 You are hereby notified pursuant to Rule 236 of the Pennsylvania Rules of Civil Procedure that Judgment has been entered against you in the amount of $35,408.01, as provided in the Note referenced in the Complaint plus continuing interest, attorney fees and costs. Prothonotary of Cumberland County -14 ME A L Date By: SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ty4 ?' ' et t<iliubrrli A i{. r , Q 2 t 1 JUL 20 PM uMB Hjas? AjAI Metro Bank I Case Number vs. 2011-5626 Mountain Aire Mechanical Contracting, Inc. SHERIFF'S RETURN OF SERVICE 07/14/2011 03:35 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on July 14, 2011 at 1535 hours, he served a true copy of the within Complaint in Confession of Judgment, upon the within named defendant, to wit: Mountain Aire Mechanical Contracting, Inc., by making known unto Tammy D. Gettys, adult in charge for Mountain Aire Mechanical Contracting, Inc. at 87 Hoover Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $34.44 July 18, 2011 CamfyS.A e Shentt, 7e.?„Oft, I".G. TIM tLACK, DEPUTY SO ANSWERS, RON R ANDERSON, SHERIFF WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) NO 11-5626 Civil COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due METRO BANK, F/K/A COMMERCE BANK/HARRISBURG, N.A. Plaintiff (s) From MOUNTAIN AIRE MECHANICAL CONTRACTING, INC., 87 HOOVER ROAD, CARLISLE, PA 17013 (1) You are directed to lery upon the property of the defendant (s)and to sell LEVI' UPON ALL INVENTORY, CHATTEL PAPER, ACCOUNTS, EQUIPMENT AND GENERAL INTANGIBLES FOR PROPERTY LOCATED AT 87 HOOVER ROAD, CARLISLE, PA 17013. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $32,408.01 L.L. $.50 Interest FROM 7/19/11 (DATE OF NDGMENT) THROUGH NOVEMBER 7, 2011 -$686.82 Atty's Comm % Due Prothy $2.00 Atty Paid $88.44 Other Costs: $174.00 Plaintiff Paid Date: 11/9/11 Dav 0.uelll roth notary (Seal) BY: Deputy REQUES"I'DtG PARTY: Name RONALD L. FINCK, ESQUIRE Address: A'IETTE, EYANS & WOODSIDE 3401 NORTH FRONT STREET, P.O. BOX 5950 HARRISBURG, PA 17110 Attorney for: PLAINTIFF Te lephone : 717-232-5000 Supreme Court ID No. 89985 10 i~'-~I; E 9 p3'; ~L AN D CDllyd i SYLVAdtilA METTE, EVANS & WOODSIDE Ronald L. Finck, Esquire Sup. Ct. ID No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) rlfinck@mette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce : UMBERLAND OCOLTNTIY, PEIVNSYLVOANIA Bank/Harrisburg, N.A., Plaintiff ~ : DOCKET NO. 11-5626 v. • MOUNTAIN AIRE MECHANICAL : CONTRACTING, INC., • Defendant ~ Q~a1pc ~ l~ ~ PRAECIpE FOR WRIT OF EXECUTION To the Prothonotary: Issue writ of execution in the above matter: Amount Due (Judgment Amount) $32,408.01 Interest from 7/19/11 (date of judgment) through November 7, 2011: $686.82 Costs $174.00 TOTAL: $ 36,268.93 S oo pd QlY a, SU ~+r y'~ M S,p G L t~, * ra ~ T~ss~d izw 9b'11 9~3 Ilir ik o~ METTE, EVANS & WOODSIDE BY: Alr~, Esquire Sup. Ct. I.D. No. 89985 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) Attorneys for Plaintiff Date: l((tttll SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff vo" Jody S Smith Chief Deputy Richard W Stewart Solicitor Metro Bank Case Number vs. 2011-5626 Mountain Aire Mechanical Contracting, Inc. SHERIFF'S RETURN OF SERVICE 11/17/2011 09:46 PM - Gerald Worthington, Deputy , being duly sworn according to law, states that on November 17, 2011 at 9:46 PM hours, served the requested Writ of Execution and Claim for Exemption Form by "personally" handing a true and attested copy to a person representing themselves to be the Defendant, tc wit: Mountain Aire Mechanical Contracting, Inc. at 87 Hoover Road, Middlesex Township, Carlisle, PA 17013, informed Defendant of contents of same and levied upon personal property as directed. Postcard and copy of levy mailed to attorney and letter mailed to defendant on November 18, 2011. 05/17/2012 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states this writ of execution is returned as ABANDONED. No action on writ in over 6 months. SHERIFF COST $68.75 May 17, 2012 SO ANSWERS, 6? ?- ?? _, -, j RON R ANDERSON, SHERIFF `ia .,)- c 1L?L4' a ?L c r?