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HomeMy WebLinkAbout04-4158IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, VS. KENNETH SMITH d/b/a BLUE COLLAR AUTO SALES and SHARON L. SMITH, CIVIL DiVISiON Defendants. CONFESSION OF JUDGMENT Pursuant to the authority granted in the Warrant of Attorney contained in the Note, the undersigned attorney hereby appears for Defendants and confesses judgment in favor of Plaintiff, PNC BANK, NATIONAL ASSOCIATION, and against Defendants, jointly and severally, as follows: Principal Debt Interest through 8/11/04 Late charges Attorney's Commission Total $7,351.60 $ 106.74 $ 81.28 $1,000.00 $8,539.62 squire Attomeys for PNC Bank, National Association IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, VS, KENNETH SMITH d/b/a BLUE COLLAR AUTO SALES and SHARON L. SMITH, Defendants. CIVIL DIVISION COMPLAINT IN CONFESSION OF JUDGMENT Filed on behalf of Plaintiff, PNC Bank, National Association Counsel of Record for This Party: Donna M. Donaher, Esquire Pa. I.D. #53165 Jeanne M. Stancampiano, Esquire Pa. I.D. #89078 TUCKER ARENSBERG, P.C. Firm #287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, VS. KENNETH SMITH d/b/a BLUE COLLAR AUTO SALES and SHARON L. SMITH, Defendants. CIVIL DIVISION NO. - COMPLAINT IN CONFESSION OF JUDGMENT AND NOW, comes the Plaintiff, PNC BANK, NATIONAL ASSOCIATION, formedy Pittsburgh National Bank, by and through its counsel, Tucker Arensberg, P.C., and files this Complaint confessing judgment in its favor, stating as follows: 1. Plaintiff, PNC BANK, NATIONAL ASSOCIATION, ("PNCB"), is a national banking association organized and existing under the laws of the United States of America and a citizen of Pennsylvania, with its main office located at Fifth Avenue and Wood Street, Pittsburgh, Pennsylvania. 2. Defendants are Kenneth Smith d/b/a Blue Collar Auto Sales and Sharon L. Smith, whose last known address is 1208 Tdndle Road, Carlisle, PA 17013. 3. On August 28, 2001, Defendants submitted to Plaintiff an Application for a Business Line of Credit. A true and correct copy of the Application is attached hereto, incorporated herein and label Exhibit "A". 4, Pursuant to the terms of the Application, the Defendants agreed that should the line of credit be granted, they would be bound by the terms and conditions of the Business Line of Credit Agreement. 8. 9. Defendants, 10. 5. On or about August 27, 2001, the Plaintiff did notify the Defendants that a business line of credit in the amount of $10,000.00 would be extended. 6. On or about August 27, 2001, the Plaintiff did provide the Defendants with the Business Line of Credit Agreement ("Agreement") containing the terms and conditions of the line of credit. A true and correct copy of the document is attached hereto, incorporated herein and labeled Exhibit "B". The Application and Agreement shall hereinafter be jointly referred to as "Note". There has been no assignment of the Note. Judgment has not been entered on the Note in any jurisdiction against the The judgment by confession sought by PNCB in this Complaint is not being entered against a natural person in connection with a consumer credit transaction. 11. By Warrant of Attorney contained in the Note, Defendants authorized entry of judgment by confession, 12. Pursuant to the Warrant of Attomey executed by Defendants, Defendants waived the benefit of all laws exempting real or personal property from execution. 13. Pursuant to the Warrant of Attorney contained in the Note, judgment may now be entered against Defendants as payment on the Note was not made when due thereby creating an event of default under the Note and accelerating all amounts due thereunder. 14. Under the Note, the following amounts are now due by Defendants to PNCB: -2- Principal Debt $7,351.60 Interest through 8/11/04 $ 106.74 Late charges $ 81.28 Attorney's Commission $1,000.00 Total $8,539.62 15. Under the terms of the Note, Defendants are liable to PNCB for attorney's commission of ten (10%) percent, but not less than $1,000,00 for collection. WHEREFORE, Plaintiff, PNCB, demands that a judgment be entered against Defendants, Kenneth Smith d/b/a Blue Collar Auto Sales and Sharon L. Smith, jointly and severally, as authorized in the Warrant of Attorney contained in the Note, in the sum of $8,539.62 together with interest and costs of suit. Respectfully submitted, TUCKER ARENSBERG, P.C. Jeanne M. Stancampiano, Esquire Pa. I.D. #89078 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Attorneys for PNC Bank, National Association -3- IN THE COURT Of COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, CIVIL DIVISION Plaintiff, NO. VS. KENNETH SMITH d/b/a BLUE COLLAR AUTO SALES and SHARON L. SMITH, De~ndan~. CERTIFICATE OF RESIDENCE I hereby certify that the precise address of Plaintiff is: Fifth Avenue and Wood Street Pittsburgh, Pennsylvania 15265 and that the last known address of Defendants is: 1208 Tdndle Road Carlisle, PA 17013 Jeanne M. SJancaiYh~a~, Esquire Attorneys for PNC Bank, National Association AFFIDAVIT The undersigned hereby certifies that the judgment to be entered in this action is not being entered against a natural person in connection with a consumer credit transaction. To the contrary, the underlying transaction is a commercial transaction. ~Esquire Attorneys for PNC Bank, National Association Sworn to and subscribed bef(~i~ m_e this. J~'~' day of ~,~ ,2004, /Notary Public I Mellss~a $~olk~y, BANK~FIN:229719-1 000011-119994 ,, 'r~e AppllCan~ ~ th.it the Bank t~ ~ilhd)s~d to cm~id~r t.hss A~c~ ufldcr ~ 17 and COrdfiltol~ Df Ony fl .l~tc~ble -2- EXHIBIT (SIGNATURES ON FOLLOWING PAGE) -3- WITNESS the due execution of this Agreement as a document under seal. a.s of the date fi~st written above, with the hltent to be legally bouttd hereby. Bo~Jrower(s): KEA'VNETI[ SbllTlt DBA BLUE COLLAR AUTO SALES - R~SOLVKD, That . _ ami / or ar~ nulhorlzed to apply for credit ',' ~mt~ into binding I~ a~n~'on ~fof&is Co--ion; ~d · · F~THER R~OLVED ~l ~ch of tbe abo~-~ o~cm ~ auto,zed to si~ ~d deliver ~y 1o~ a~m~t, noir, s~u~ty a~cmcn~ ~d ~c~l, modificafio~ ~t~ion a~ o~cr n~efl~ on bch~f of : Co--uPon (~y of ~ich may contain a ~l of ~tomcy au~gz~g ~ B~ to conf~ jud~ent agai~t ~c . Co~t~n for ~1 ~ms due or to ~ome due by ~ Co,ration to ~e Bt~). . C~TIFICATION. I ce~fy ~t: ~ ~ Scc~t~ or ~is~t S~ of ~e Boric ~e K-~go~g ~olutlo~ ~ ~opmd by ~e Bo~s Bo~d of D~to~; ~e ~ ~11 fore ~d effect and have n~ ~ m~ifi~ or '~kcd; ~d ~e similes ~d ti~ set fo~ ~ove ~ ~e genuine slg~lu~ ~d titles of ~e ~no~ indicate. -4- PNCBAN ! BUSINESS BANKING LINE OF CREDIT AGREEMENT ADDITIONAL TERMS (Business Money Manager SiiverSSt / Golds'~t Offer) - Code "SILVERG/G' InUmiuctury. Ind=x: :InU~luctory Margin: [nltoductory R~Ie: KENN,- !'H SMITH DBA BLUE COLLAR AUTO SALES 1208 TRINDLE ROAD CARLISLE, PA 17013 PNC Bank, National A~sociatlon 4242 CARLISLE PIKE CAMP HILL, PA 1700 I 6.75% o 1.00% ~.75% Introductory Rate Billing Cycle~ 6 Dcar KENNETH SMITH: . i' . .:: Congramlalinus! We ate delighted that you ate n PNC Business Money Mnr. ager Silver/Gold Plan · ' .: .: customer. To th.~k you for your business, the special terms indicted below apply to your unsecured line :? ~ot' credit. The provisious cf these Additional Tem~ shall supersede any ineousiatent pmvisious of the · "/.~0x:lused B~siness Banking Line of C~fit Agreenmnt (the '*Agreement") so long us you remain n PNC Business Money Manager Silver/Gold Plan custamcr and ~hall be deemed to be an Amendment to thc .~ .Agreement issued in accordance with Section 25 of tim A~.-ement. Thank you for your business. · : . r : MARLIES 'I'RIIvIBUR DEF'[I'IITIONS AND TERMS USED. Unles.~ o~herxvise specified, any initially capitalized · '-'i. used herein without definition shall have the meauings assigned to thur~ terms in the AgreemenL <...'..? 2. INTRODUCTORY' INTEREST RATE. So long ns the Bonower maintains · Business Money ·: ...: Manager Silver or Gold Plnn with the B~ imeresl on the balance of the Amount Fi~-d outstanding · .: -. ~om time to time shall be ¢ompmed on n 365/360 basis at the Intmductm3, Rate indicated above for the · number of full Introductory Rate Bit!in8 Cycle~ indicated above. ~. '. ' 3, TERMINATION OF INTRODUCTORY INTEREST RATE. If your Business Money Manager · .: Silver or Gold Plan ia no longer in effeet or the number of fuil InmxluctOry Rate Billing Cy~le~ indicated ~ above have b~e.n completed, interest on the balance of the Amount Financed oatsmnding from time to time :' ' ' shall be computed in accordance with Section 9 of the A~eement. ' ' ' .' i' 4. WAIVER OF ANNUAL FEB. During the Past ~ of the A~"~ment, the A~nual Fee ~pecified · ·. on the f'u'st page of the Agreement sh,'dl be v~aived. If your Business Money Manager Silver or Gold Plan . '~ is no longer in effect prior to the completion of the number of full Introductory Rate Billing Cycles .: "'L indicated above, the Bank may, at it~ sole discretion, ahatge a pro=rated Annual Fee to your ageoum for the - ' ..... remainder oftbe first ycnr of the Agx~ement. EXHIBIT 4 PNCBAN(. i M a.'-4mu m Credit: BUSINESS B.~NK1NG LINE OF CREDIT AGREEMENT (For Remote Applicutions) KENNETH SMITH DBA BLUE COLLAR AUTO SALES 1208 'FRI~LE ROAD CARLISLE, PA 17013 PNC Bnn~ Nado~al A~sociation 4242 CARLISLE PIKE CAMP HILL, PA 17001 $ I 0,000.00 $ I ?5.00 OYAIVED FOR FIP,~T YEAR) M~m 1.00°,4 ~ of Loan: Au~.=st 27,2001 ~ Co~m~on ~ Limft~ Linbility Co~y Sm~ oFO~ni~don: P~yl~in 0 O~cral panaershlp [] Sub~hapter S Corporation I-1 Limited Pmmershlp [] Non.profit Corp. ~' ~ Yes l v-am t~ pro~ect the Bom~wer's PNC B~;~-. ~ ~o~t ~ O~ Pml~fion. '~ ~- D~sit Accent ~ for Auto,it ~d~ --{~ ' ** CHE~GACCO~ ~ "*~ R~ui~ for ~ecured SIGNATURES ~QUI~D ON PAGE 4 -I- BUSINESS BANKING LINE OF CREDIT AGREENIENT (For Remote Applications) TERMS AND CONDITIONS -6- Ill -'7- I~t-~ ~to you. T~.'nninatimt undc~ this paragraph w~ not ;ileal any ch~ 'ks wh ch comp y wi~h IhiS Asrc~rtc~t and which w~'~ v~t(cn ;nd (ssm:d ~.~t~e UtJs ~.t, we ~'itl ¢ompul~ a n~w moflt~ly p~ymeflt w~th r~pe~ to Ihe pod oFtlte ~:eount so ~n,~-;1~d (~h~"Tcnn Loan Po~on"). and -8- -9- BUSINESS BANKING LINE OF CREDIT AGREEMENT (For Remote Applications) ADDITIONAL SECL'RITY AGREEMENT TERMS (If Applicable) I I 2. PAy~,IENTOF EXPENSES. A[ ii, oFfice 1~3~nJcma¥clj~:b~u[~s, liem. s~udlyi~lsars~hmhe?eneumb~ae~¥ ACT 105 OF 2000 NOTICE A JUDGMENT HAS BEEN ENTERED AGAINST YOU BY CONFESSION OF JUDGMENT. PURSUANT TO 42 PA. C.S.A. §2737.1, IF YOU WERE INCORRECTLY IDENTIFIED AS A DEFENDANT IN THE COMPLAINT IN CONFESSION OF JUDGMENT, YOU MAY BE ENTITLED TO COSTS AND REASONABLE A'FrORNEY FEES AS DETERMINED BY THE COURT. YOU MAY TAKE ACTION TO STRIKE THE JUDGMENT BY FOLLOWING THE PROCEDURE IN RULE 2959 WHICH iS AS FOLLOWS: PENNSYLVANIA RULE OF CIVIL PROCEDURE 2959 - STRIKING OFF JUDGMENT. (al (1) Relief From a judgment by confession shall be sought 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 shedff 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 (il in support of a further request for a stay of execution where the court has 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 Pennsylvania Rule of Civil Procedure 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 or 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 (see text of Rule 440 reprinted below). (el 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 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 is pending. Rule 440. Service of Legal Papers other than Original Process (a) (1) Copies of all legal papers other than original process filed in an action or served upon any party to an action shall be served upon every other party to the action. Service shall be made (i) by handing or mailing a copy to or leaving a copy for each party at the address of the party's attorney of record endorsed on an appearance or prior pleading of the party, or at such other address as a party may agree, or Note: Such other address as a party may agree might include a mailbox in the Prothonotary's office or an e-mail address. For electronic service by means other than facsimile transmission, see Rule 205,4(g). (ii) by transmitting a copy by facsimile to the party's attorney of record as provided by subdivision (d). (2) (i) If there is no attorney of record, service shall be made by handing a copy to the party or by mailing a copy to or leaving a copy for the party at the address endorsed on an appearance or prior pleading or the residence or place of business of the party, or by transmitting a copy by facsimile as provided by subdivision (d). (ii) If such service cannot be made, service shall be made by leaving a copy at or mailing a copy to the last known address of the party to be served. Note: This rule applies to the service upon a party of all legal papers other than original process and includes, but is not limited to, all other pleadings as well as motions, petitions, answers thereto, rules, notices, interrogatories and answers thereto. Original process is served under Rule 400 et seq. (b) Service by mail of legal papers other than original process is complete upon mailing. (c) If service of legal papers other than original process is to be made by the sheriff, he shall notify by ordinary mail the party requesting service to be made that service has or has not been made upon a named party or person. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, CIVIL DIVISION Plaintiff, NO. VS. KENNETH SMITH d/b/a BLUE COLLAR AUTO SALES and SHARON L. SMITH, Defendants. TO: Kenneth Smith d/b/a Blue Collar Auto Sales 1208 Trindle Road Carlisle, PA 17013 NOTICE OF ENTRY OF JUDGMENT Please take notice that on ,2004, a Judgment by Confession of Judgment, was entered against you in the coud and at docket term and number set forth above. The amount of the Judgment is $8,539.62, plus costs. Prothonotary, Cumberland County IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, CIVIL DIVISION Plaintiff, NO. VS. KENNETH SMITH d/b/a BLUE COLLAR AUTO SALES and SHARON L. SMITH, Defendants. TO: Sharon L. Smith 1208 Trindle Road Carlisle, PA 17013 NOTICE OF ENTRY OF JUDGMENT Please take notice that on , 2004, a Judgment by Confession of Judgment, was entered against you in the court and at docket term and number set forth above. The amount of the Judgment is $8,539.62, plus costs. Prothonotary, Cumberland County VERIFICATION The undersigned, Darnella Ganaway, hereby verifies the statements of fact contained in the attached Complaint in Confession of Judgment to be true and correct according to her personal knowledge, information and belief, and further pledges that this verification is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Gan"a~ay Attorney Relations Manager IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, VS, KENNETH SMITH d/b/a BLUE COLLAR AUTO SALES and SHARON L. SMITH, CIVIL DIVISION NO. AFFIDAVIT OF NON-MILITARY SERVICE Defendants. Filed on behalf of Plaintiff, PNC Bank, National Association Cede: Counsel of Record for This Party: Donna M. Donaher, Esquim Pa.I.D.#53165 Jeanne M. Stancampiano, Esquire Pa.l.D. #89078 TUCKER ARENSBERG, P.C. Firm #287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, VS. KENNETH SMITH d/b/a BLUE COLLAR AUTO SALES and SHARON L. SMITH, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) CIVIL DIVISION NO. Personally appeared before me, the undersigned authority, Darnella Ganaway, who, being duly sworn according to law deposes and says that upon inquiry, and from her own personal knowledge, she knows and avers that the Defendants, Kenneth Smith d/b/a Blue Collar Auto Sales and Sharon L. Smith, in the above action are not in any branch of the military service of the United States. ~way ~'~ Al~orney Relations Manager Sworn and subscrit~ed before me this~,~day Notary Public COMMONWEALTH OF PENNSYLVANIA t Nota~al Seal My commission expires co~tan~ R. Brue~,~r, No~ Public My C~ F. N31res Feb. 4, 2008 Member, pennsylvania Association Of Notaries BANK_FIN:229761-1 000011 - 119994