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HomeMy WebLinkAbout11-5758ii ED-O I` ICE Hli PP O 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) hrlcelly_amette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A., Plaintiff V. MOUNTAIN AIRE MECHANICAL CONTRACTING, INC., Defendant 2011 JU 19 PM 2: 55 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 1 I - 59 Sa C1Vl I 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: $15,796.40 Interest through 7/14/11: $770.28 Late Charges through 7/14/11: $25.96 Attorneys Commission (10%): $1,650.00 TOTAL $18,242.64* *Continues to accrue until paid. Interest at the per diem rate of $3.18, attorneys fees and costs of this action continue to accrue. sal 56 ;pda? #/0 Nov p a to 9o30 i4a:p dew Respectfully submitted, METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire, E quire 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 18, 2011 t' ,., ?xf7M?TA'? r i> RERLAND COUNTY ^?-N NSYLYANIA 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) hzkellyAmette.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. p S 7 5?? ,r ? ???r' 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 Promissory Note in the original principal amount of Twenty-Six Thousand Dollars and 00/100 ($26,000.00) in favor of Plaintiff. The Promissory Note is attached hereto as Exhibit "A" and is referred to as the "Note." 4. Defendant has defaulted under the Note by failing to make payments when due. 5. By correspondence dated June 29, 2011, Plaintiff made a written demand on Defendant for payment. A true and correct copy of the June 29, 2011 correspondence is 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 warrants of attorney appearing in the Note are less than twenty (20) years old. 12. Plaintiff has taken all actions or complied with all conditions precedent in the filing of this action. 13. The entire remaining indebtedness evidenced by the Note is due and payable, and Defendant's total indebtedness to Plaintiff as of July 14, 2011 is $18,242.64, which is computed as follows: Principal: $15,796.40 Interest through 7/14/11: $770.28 Late Charges through 7/14/11: $25.96 Attorneys Commission (10%): *$1,650.00 TOTAL $18,242.64 *Only reasonable attorneys fees will be collected by the attorney. Interest at the per diem rate of $3.18, 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 $18,242.64 plus continuing interest at the per diem rate of $3.18, attorneys fees and costs. Respectfully submitted, METTE, EVANS & WOODSIDE Heather Z. Kelly, squire, E uire 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 18, 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. hn Robertson Vi resident -Asset Recovery Manager Metro Bank Dated: 1/0?/// ??y,grT PROMISSORY NOTE ) COPYJW Principal Loan Date Maturity Loan No Call col! Account Officer IInitials $26,000-00 09-17-2008 09-17-2013 3679888 2116 References in the boxes above are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing "" has been omitted due to text length limitations. Borrower: Mountain Aire Mechanical Contracting, Inc. 87 Hoover Road Carlisle, PA 17013 Lender: COMMERCE BANK/HARRISBURG N.A. COMMERCIAL BUSINESS DEPARTMENT 3801 PAXTON STREET HARRISBURG, PA 17111 (888) 937-0004 Principal Amount: $26,000.00 Interest Rate: 7.250% _ Date of Note: September 17, 2008 PROMISE TO PAY. Mountain Aire Mechanical Contracting, Inc. ("Borrower") promises to pay to COMMERCE BANK/HARRISBURG N.A. ("Lender"), or order, In lawful money of the United States of America, the principal amount of Twenty-six Thousand & 001100 Dollars (426,000.00), together with Interest at the rate of 7.250% per annum on the unpaid principal balance from September 17, 2008, until paid in full. The interest rate may change under the terms and conditions of the "INTEREST AFTER DEFAULT" section. PAYMENT. Borrower will pay this ban in 60 payments of 4519.13 each payment. Borrower's first payment Is due October 17, 2008, and all subsequent payments are due on the same day of each month after that. -Borrower's final payment will be due on September IT, 2093, and will be for all principal and all accrued interest not yet paid. Payments include principal and Interest. Unless otherwise agreed or required by applicable law, payrnonts will be applied first to any accrued unpaid interest; then to principal; then to any unpaid collection costs; and then to any late charges. The annual interest rate for this Note is computed on a 3651360 basis; that is, by applying the ratio of the annual Interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. PREPAYMENT PENALTY. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of the date of the loan and will not be subject to refund upon early payment (whether voluntary or as a result of default), except as otherwise required by law. Upon prepayment of this Note, Lender Is entitled to the following prepayment penalty: Prepayment of any amount of the principal sum shall be subject to a penalty charge of 5% during the first year of amortization and declining 1 % per year thereafter to par. Except for the foregoing, Borrower may pay all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments under the payment schedule. Rather, early payments will reduce the principal balance due and may result in Borrower's making fewer payments. Borrower agrees not to send Lender payments marked "paid in full", 'without recourse", or similar language. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: COMMERCE BANK/HARRISBURG N.A., LOAN SERVICING, PO BOX 4999 HARRISBURG, PA 17111-0999. LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by 4.000 percentage points. If judgment is entered in connection with this Note, interest will continue to accrue after the date of judgment at the rate in effect at the time judgment is entered. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. DEFAULT. Each of the following shall constitute an event of default VEEventsf Default") under this Note: Payment Default. Borrower fails to make any payment when due under this Note. Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or in any of the related documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lander and Borrower. - Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the related documents. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Note or the related documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Insolvency. The dissolution or termination of Borrower's existence as a going business, the insolvency of Borrower, the appointment of a receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the loan. This includes a garnishment of any of Borrower's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note. Change In Ownership. Any change in ownership of twenty-five percent 125%) or more of the common stock of Borrower. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the.prospect of payment or performance of this Note is impaired. Insecurity. Lender in good faith believes itself insecure. Cure Provisions. If any default, other than a default in payment is curable and if Borrower has not been given a notice of a breach of the PROMISSORY NOTE Loan No: 3679888 (Continued) Page 2 same provision of this Note within the preceding twelve (12) months, it may be cured if Borrower, after receiving written notice from Lender demanding cure of such default: (1) cures the default within fifteen (15) days; or (2) if the cure requires more than fifteen (15) days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance under this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount. ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's reasonable attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including reasonable attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Pennsylvania without regard to Its conflicts of law provisions. This Note has been accepted by Lender in the Commonwealth of Pennsylvania. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the indebtedness against any and all such accounts. COLLATERAL. Borrower acknowledges this Note is secured by the following collateral described in the security instrument listed herein: a Mortgage dated September 17, 2008, to Lender on real property located in Cumberland County, Commonwealth of Pennsylvania. POST CLOSING COMPLIANCE. Borrower agrees to execute, re-execute, cause a Guarantor(s) or other third party(ies) involved in the loan transaction to execute and/or re-execute and to deliver to Lender or its legal counsel, as may be deemed appropriate, any document or instrument signed in connection with the Loan which was incorrectly drafted and/or signed, as well as any document or instrument which should have been signed at or prior to the closing of the Loan, but which was not so signed and delivered. Borrower agrees to comply with any written request by Lender within ten (10) days after receipt by Borrower of such request. Failure to Borrower to so comply shall, at the option of Lender, upon notice to Borrower, constitute an event of default under the Loan. SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender and its successors and assigns. NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us if we report any inaccurate information about your account(s) to a consumer reporting agency. Your written notice describing the specific inaccuracy(ies) should be sent to us at the following address: COMMERCE BANK/HARRISBURG N.A. LOAN SERVICING 3801 PAXTON STREET HARRISBURG, PA 17111. GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note is for any reason defermiKed to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE QF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL. V r, PROMISSORY NOTE Loan No: 3679888 (Continued) Page 3 PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE, BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: MOUNTAIN AIRE MECHANICAL CONTRACTING, INC. By: (Seal) Jeffrey s, President o Mountain Aire Mechan I ontracting, Inc. LASER PRO L.d". V- 6,Q.W.= Cap. M-d Fh-P $0-1, M1. 1997, SOW. N NyA„ RRw 0. - PA SACFI1LPLMOSC T?37919 PR-i9 ?f'I?BiT METRO 3801 Paxton Street BANK Harrisburg, PA 17111 my met obanklu=29, 2011 VIA REGULAR AND CERTIFIED MAIL, RETURN RECEIPT REQUESTED Mountain Aire Mechanical Contracting, Inc. 87 Hoover Rd. Carlisle, PA 17013 Jeffrey R. Gettys Tammy Gettys 87 Hoover Rd. 87 Hoover Rd. Carlisle, PA 17013 Carlisle, PA 17013 Re: Indebtedness of Mountain Aire Mechanical Contracting, Inc. ("Borrower") to Metro Bank ("Bank") as guarantied by Jeffrey R. Gettys and Tammy Gettys (collectively, the "Guarantors") Dear Mr. and Mrs.: 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 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 $26,000.00, dated 09/17/08 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. Effective immediately, the Bank has elected to increase the rate of interest charged on the unpaid principal balance of the Term Note to the default rate of interest provided for in the Term Note, which the interest rate due and payable under the Term Note plus 4.00% per annum (the "Term Note Default Interest Rate"). The Borrower may continue to receive invoices for payments under the Term Note that do not reflect this change in interest rate. The failure of the Bank to forward invoices to the Borrower reflecting payments at the Term Note Default Interest Rate is in no event a waiver of the imposition by the Bank of the Term Note Default Interest Rate under the Term Note as of the date set forth herein. 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 29, 2011, there is unpaid due and owing to the Bank under the Promissory Note the amount of $16,544.92. 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, The Demand Note or of any 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, Melissa Auman Commercial Asset Recovery Specialist METRO BANK ED-JF ICL HA'E P RC}THONOTAR f Zug I AIL 19 PM 2: 55 CUMBERLAND 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) hzkellygmette.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. 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 Heather Z. Kelly Attorney for Metro Bank, f/k/a Commerce Bank/Harrisburg, N.A. Date: July 18, 2011 540125v1 e(? PROTI-(ONOTAR" &(I ,?1 ! PM 2* i'J;MOERLAND 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) hzkelly_gmette.com Attorneys for Plaintiff METRO BANK, f/k/a Commerce Bank/Harrisburg, N.A., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MOUNTAIN AIRE MECHANICAL CONTRACTING, INC., Defendant DOCKET NO. ' I , " -7)'?- Notice Under Pa R.C.P. 2958.1 Of Judgment 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 $18,242,64 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. 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 e?, 0z 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 18, 2011 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 I i roNOrAr 11!Lz !3 Pty 2:5G 'UMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 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. § 2737.1, 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. Kell , squire 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 18, 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) hzkell 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. I / 5-7 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 $18,242.64, as provided in the Note referenced in the Complaint plus continuing interest, attorney fees and costs. Proth:).4% f Cumberland County 9-t SEAL Date By: SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff _ FILED-{OFt' iC W Jody S Smith Chief Deputy i] I i JUL 26 AM g: 4 Richard W Stewart Solicitor , - C. MBERLAfiD COON i'i' PENNSYLVAMA Metro Bank vs. Case Number Mountain Aire Mechanical Contracting, Inc. 2011-5758 SHERIFF'S RETURN OF SERVICE 07/22/2011 10:28 AM - Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on July 22 2011 at 1028 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 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. S A ALL, D UTY SHERIFF COST: $34.44 July 25, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Ao%lerson Sherifr Jody S Smith Chief Deputy Richard W Stewart Solicitor Metro Bank vs. I Case Number Mountain Aire Mechanical Contracting, Inc. 2011-5758 SHERIFF'S RETURN OF SERVICE 11/17/2011 08:24 PM - Deputy Gerald Worthington, being duly sworn according to law, served the requested Writ of Execution and Claim for Exemption Form to a person representing themselves to be Jeffrey Gettys, Owner, who accepted as "Adult Person in Charge" for the within named Defendant, to wit: Mountain Aire Mechanical Contracting, Inc. at 87 Hoover Road, Middlesex Township, Carlisle, PA 17013, informed person of contents of same and levied upon personal property as directed. The writ of execution and notice to defendant was mailed on November 18, 2011 to Mountain Aire Mechanical Contracting, Inc. at 87 Hoover Road, Carlisle, PA 17013. 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: $67.83 SO ANSWERS, May 17, 2012 RONrW R ANDERSON, SHERIFF FP-0 --75- 3 ?1