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HomeMy WebLinkAbout02-0420KEYSTONE FINANCIAL BANK, N. A. now by merger, M & T BANK Plaintiff VS. LAWRENCE C. ZIMMERMAN ETTA A. ZIMMERMAN Defendant~ IN T~E COURT OF COMMON PLEAS COUNTY OF CUMBEI~LAND COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION LAW CIVIL TERM 2002 CONTESSION OF JUDGMENT Pursuant to the Warrant of Attorney contained in the aforementioned Promissory Note, the original or copy of which is attached to the Complaint filed in this action, I appear for the Plaintiff and confess judgment in favor of Plaintiff and against the Defendants, Lawrence C. Zimmerman and Etta A. Zimme, man, as follows: Principal Interest to 1-22-02 Attorney's Fees TOTAL $109,500.38 $100,000.00 $ 4,286.08 $ 5,214.30 with interest from January 22, 2002, on the principal sum of $100,000.00 at the rate of 10.$ % per annum. Respectfully submitted, Dated: Duncan & Hartman, P.C. Wiili~ A. Duncan,~E~quire PA ID # 2~080 Attorney for Plaintiff KEYSTONE FINANCIAL BANK N.A. now by merger, M & T Bank Plaintiff VS. LAWRENCE C. ZEMMERMAN ETTA A. ZIMMERMAN Defendants IN TUE COURT OF COMMON PLEAS COUNTY OF CUMBERLAND COMMONNVEALTH OF PENNSYLVANIA CIVIL ACTION LAW CIVIL TERM 2002 COMPLAINT FOR JUDGMENT BY CONFESSION PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE 2951, ET SEQ. Plaintiff, Keystone Financial Bank, N.A., now by merger M & T Bank by its attorney, William A. Duncan, f'des this Complaint in Confession of Judgment. 1. Plaintiff, Keystone Financial Bank, N.A., now by merger, M & T Bank is a Pennsylvania banking Corporation existing under the laws of the Commonwealth of Pennsylvania, with its principal place of business located at 1415 Ritner Highway, Carlisle, Cumberland County, Pennsylvania. 2. Defendants is Lawrence C. Zimmek'~an and Etta A. Zimmerman, with a last known address of 86 Dewalt Drive, Mechanicsburg, Cumberland County, Pennsylvania, 3. On or about August 11, 2000, Defendants, Lawrence C. Zimmerman and Etta A. Zlmmerman entered into a Promissory Note in favor of Piaintiff, Keystone Financial Bank, N.A., in the original principal amount of One Hundred Thousand and 00/100 ($100,000.00) Dollars. A true and correct copy of the Note, which contains the Warrant of Attoruey upon which this judgment is confessed, is attached hereto as Exhibit 'A' and is a part hereof. 4. Defendants Lawrence C. Zimmerman and Etta A. Zimmerman, has defaulted in this obligation under the Note by failing to make their July 2001, August 2001 September 2001, October 2001, November 2001, December 2001, and January 2002 payments of principal and interest due thereunder the te~ ~s of said note. 5. Pursuant to the Note, judgment may be entered against Defendants Lawrence C. Zimmerman and Etta A. Zimmerman, for MI monies due without notice or demand. 6. Pursuant to the Note, and by reason of Defendants Lawrence C. Zimmerman and Etta A. Zimmerman defaults, the following amounts are currently due and owing Plaintiff Keystone Financial Bank, N.A., now by merger M & T Bank by Lawrence C. Zimmerman and Etta A. Zimme~man, Defendants. Principal Amount due to date: $100,000.00 Interest Accrued and unpaid through January 22, 2002 $ 4,286.08 Attorney's Fee's Pursuant to the terms of the Note $ 5,214.30 TOTAL $109,S00.38 Interest accrues at a rate of $15.97 for each day after January 22, 2002 that this indebtedness remains unpaid. In an event of a petition to strike or open this judgment is f"ded. Plaintiff Keystone Financial Bank N.A., now by merger, M & T Bank reserves the right to have interest and attoruey*s fees brought current. 7. There has been no assignment of the Note. 8. Judgment has not been entered on the Note in any other jurisdiction. 9. Pursuant to the Note, $109,S00.38 is currently due and owing Plaintiff Keystone Financial Bank, N. A., now by merger, M & T Bank from Defendants Lawrence C. Zimmerman and Etta A. Zimmerman, and Defendants Lawrence C. Zimmerman and F. tta A. Zimmecaian, have failed to pay the amount due. WUEREFORK, Plaintiff Keystone Financial Bank, N~A., now by merger M & T Bank request that judgment be entered in its favor and against Defendants Lawrence C. Zimmerman and Etta A. Zimmermnn, in the sum of $109,S00.38 and all costs of suit. Duncan & Hartman, P.C. DATED: By: t/William A. ~u'ncan, Esquire Attorney for Plaintiff CERTIHCATION OF COMMERCIAL TRANSACTION I, Keith Mangan, hereby verify that I am a Special Assets Collection Officer for M& T Bank, and, as such, duly authorized representative ofM & T Bank deposes and says subject to the penal~/es of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities that the underlying transaction relative to this Complaint in Confession of Judgment is a commercial transaction to the best of his knowledge, information,and belief. C'Ke~-th Mangan Special Assets Collection Officer M& TBank VERIFI(~ATION I, Keith Mangan, hereby verify that I am a Sp~ciai Assets Collection Officer for M & T Bank, that I make this verification being authorized to do so, and the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. Sp~iai As~ Collection M& T Bank Principal Amount: $100,000.00 Initia/Rate: 10.500~ Date of Note: August 11, 2000 PROMISE TO PAY. Lawrence C, Zlmmemtan and Etta A. Zimmennan (~tonowe~) jointly and severally ~ to pay to KeyMone financial Bank, IJ.A. ("Lander"), or order, in lawful money of the United Sinlus of America, on demand, the principal amount of One Hundred ThouSand & 00/10o Dollars ($100,000.00), together with Intm'eof on the unpaid pglnotpM balance from August 11, 2GAG, until paid in full PAYMENT. Borrowe~ will pay this toon intmeltisinty UpOn Lender's demand. Payment In full is due ~ UIX)n Lunde~s demand. Bo,¥G~er will pay regular montNy payments of ail accrlled unpaid Int~ due ,Is ot each paymen! date, beginning ~_e,,~ ember 11~ ~, with charges. The annual ininreM rata for this Nofe LS computed on a 3es/'JeO be,~; that is, bY OPPlYIng the rMto of the m~ i~ ~ ov~ a year of 36o days, muitlplted by the outa~nding prlnotlml IMtence, multiplied by the actusi number of days the Iwincipal balance in outstanding. Bon'ower will pay Lender ut Lender's ad,~,.-T shown above or ut such other pisco as Lender may _d~_'.rmte in w~ng. VARIABLE INTEREST RATE. The intmect rate on this Note is subject to change from time to time bused on changes in an independent index which is the Prime Pate as pubfishecl each business daY.in the Wail Street Journal. When a range of rates has been published, the highest rate wi1 be used (the "Index"). The Index is not necessarily the lowest rate charged by Lender on its to,ns. If the Index becomes uneveitobto clurtng the ts~n of this loan, Lender may designate a substitute index after notice to BCxTOWer. Lender w~l ten Borrower the con'ant Inde~ rate upon Bon-ower's request. The interest rate change wliI not occur mom often then each DAY. 9on'ower undersisnde that Land~' may make loans based on othm' rates as weft. The index currently is 9.600~ per ammm. The interest rate to be applted to the unpaid principal betenco of this Note Mil be at a rate of 1.000 percentage pofnt over the Index, _r~___dtlng in an Inittel rate of 10.6oo% per annum. NOTICE: Under co circumsisncas will the ioterest rate on this Note be mora than the ma~mum rate allowed by* applicable taw. PREPAYMENT. 8mTow'er may pay without peuelty ali or a podion of the amount owed asrlter than it is due. Eady payments will not, unteas uGr~ed to by Lender in writing, relieve 9on'ower of Bm'rower's obflgaliOn to continue to make payments uncler the payment schedule. Fisther, marly paymenis will reduce the principal baisnce due. Bonowe~ agrees not to send Lender payments maltced "l:mid in full'; "without recomse', or sImiisr isnguagB. If Borrower sends such ,~ payment, Lender may accept it without Icing uny. of L.ondm's ~ights under this Note, and 9orrower will remain ubGgated to pay any further amount owed to Lundin'. Ali wrift~n communicali0rls concermng disputed amounts, inctoding uny check or o~er I:myment insb'ument that indicains that the payment consJflutss 'payment in full" of the amount owed or that is tendered with other condilions or limitefions or ,as full sa~,~'4ton of a disputed amount must he malted or clsiivered to: Keystone Rnarlc~d Bank, N.A.; Camp Hill FIBC; 4231 Trindto Road; Camp HUff, PA 17011. LATE CHARGE. If u reguisrly schedutsd int~t puymant is 15 days or mom fate, Bon'ower will be charged 6.000% of the regularly ~-'heclutod Ixwment. If lender demands peymant ~ this loan, and Borrowg~ does not pay the tolm in full within 16 dnys after Lender's dam,lid, Bon'oweg ~ wit be ~ 6.000% of the sum of the Unpaid principal plus accrued unpaid inthfesL II~1,-HEST AFTER DEFAULT. Upon defautt, inotudlng ~ilure to pay upon final maturity, lender, at its option, may, if perndtted under aphis law, increase the wfiabto interest rate on this Note to 6.000 percentage points over the inde0c. 'The intoner rate wll not excmed the n'laXlmum nlm pemlitted by applicable isw. If judgmant is entered in connection with this Note, interest will conSnue to ecc~Je on this Note uifm* judgment at the inte,~ rein applicabte to this Note at the time judgmem is entered. DEFAULT. Each of the following slmli co,-~te art event of default ~Evant of Detsult~ undor this Note: Payment Default. Bmmwer tells to make any payment when due under this Hofe. Othe~ Defaults. Borrower fails to comply with or to perform any other term, obflgalion, covenant or condition contained in this Note or in any of the raistsd documents or to comply with or to perform uny term, obligation, covenant or condiUon contained in any other agreement batwunn Lender and Borrower. Default in Favor of Third Porltes. Borrower or any Grantor defaults under any loan, extonsion of credit, ascudty agreement, purchase or sates agreement, or uny other Ugllaenlent, in ~vor of any other creclIfor or I:)e~ofl that may mutedalty affect ~iy of Bon'ow~'s property or BorTower's ability to repay this Note or perfon~ Bon'oweds obllg~tians under this Note or any of the refuted Gc~umants. Fat.qe Stetemeflt~ Any wan'uriC, raprasenteifon or sintBment made or tornisheci to L.m~er by Bon'ower or on Bofl'oweCs behaJf under this Note or the re~atm:J documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misisedlng -t any tirne thereafter. Death or Insolvency. The d_K~_th of Borrow~ or the cliss~uflon or termination of Borrower's extstence as a going bust ._r-~-~_~. the insolvency of Borrower, the appointment of a ~,c~ve~ for any part of Borrower's properly, any assignmont for the benefit of crm:Jito~, any type of Creditor wQfkout, or the commencement of any proceecling under any bankruptcy or insotwmcy isws by or 8gairist Bonower. Creditor or Fof/eiture Proceedings. Commencement of forectosure or fc~mitum proc~ wheth~ by judictel proceeding, stir-help, rel~_,~__%,,~sion or any other meUlod, by any crm:lJtor of Borrowe~ or by any governmental agency againsf imy ~ Secudng the loan. This inctucJas a garnishment of any of Borrower's accounts, inclucling (J~t accounts, with Lender. However, this Event of Oeteuif Stulll not apply If there is a good faith clispote by Borrow~ as in the v~iidity or ~nabteneas of the ctsim which is the ~ of the or(~ or fi:h-fa#urn prong and if B0~Tower gives L.ande~ written notice of the creditor or to~'feitum proceeding and de~ with Lender monies or u surety bond fl)r the creditor or todeiture proceecling, in an amount detet'minad by Lender, in its sote discretion, as being an ,~deClUe~ raserYe or bond for the dispute. Evenin Affecting GusraofQr. Any of the preceding events uccu~ with reopect to amy guemntoc, endorser, surety, or accommodation pah'y of -,ny of the indet)tednass or any gt.mrantor, endo~er, surety, or accommodation party dies or becomes incompeMnt, or revokes or d_~utas the ~didity of, or liability under, any guaranty of tho inde~)tecineas. In the event of ii dasth, Lender, ut its oplton, rney, but si~li not be required to, permit the guerantoCs asiste to assume uncondtitormJly the ot)ligaliQns arising undue' the guaranty in a ~ satis'g~to,-y- to Lender, and, in doing so, cura an,/Event of Default. )Klveree Chengu. A maisrisJ ,,duerse change occurs in Borrower's linanciaJ condifion, or Lender be#eves the pmspeot of peymant or performance of this Nois is impaired. · PROMISSORY NOTE (Continued) Page 2 Insecurify. Lender in good faith believes its~f insecure. Cure Provioton& If Any def~uif, other than ,, di~ult in payment, is curable and if Bom~ver has not been given a notice of a breach of the same provision ot this Note within the preceding twelve (12) months, it may be cured (and no event of d~auit will have occurred) if Bon'ower, ;lifer receiving whiten notice from Lender demanding cure of such de~uit: (1) cures the defa~ within flltasn (15) days; ar (2) If the cum requires more than fifteen (15) days. immedlaltdy initlatss steps which Lender deems in Lender's soie discretion to be Sufficient to cure the default and themaflm' continues and complales all reasonable and nr=~-::~ry staps sufficient to produce com~lianca as soon as reasonably precl~al. LENDER'S RIGHTS. Upon default, Lender may. after giving such notices as required by applicable law, declare the entire unpaid principal balance on this Note and al accrued unpaid intan~-'t immediately due, and then Bo~ower will pay that amount. ATTOiqNEY$' P,-cS; EXPENSES. Lender may hire or pay someono ~ to he~p collect the loan if Borrower does not pay. Bon'ower wtil pay Lender that amount. This indiudas, subject to any limits undor applicable law, Lender's altonteys' fees and Lender's legal expenses, whether or not there is a lawsuit, including attorneys' fees, expenses for banknJptcy proceedings (including e;;,c, ls to modify or vacate any automalto stay or injunction), and appeats. If not prohibited by applicable law, Bonower also will pay any court custs, in addilion to all other sums provided by law. JURY WAIVER. Lender and Bon'ower hereby waive the right to any juw ~ in any ac~. pr___r__~eed_ ing, or counterclaim brought by either Lender or Bon'ower against the other. GOVERNING LAW. This Note wilt be governed by, con~ and enforced ia acoo~ with federal law and lite laws of the Conrmonwealth of Pennsylvasla. Thte Note has been accepted by Lender in the Common~aslth of Pennsylvaste. CHOICE OF VENUE. If there is a lawsuit, Borrower agreas upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, Commonwealth of Pennsylvania. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender ~.~"~vas a ~'~ of setolf in all Bon-oWer's accounts with Lender (whe~ checking, s~vings, or soma other account). This includes all accounts Bonower holds jdinlty with someone else and all accounts Borrower may open In the future. HoWever, this does nol indiude 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 app _lln=_ble law, to charge or setolf all sums owing on the indebtedness against any and all such accounts, and, at Lender's option, to administratively freeze all soch accounts to allow Lender to protect Lender's charge and setoff rights provided in this parag~'aph. SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's hal~s, personal representatives, successors and assigns, and shall inure to the benefit of Lender and Lender's successors and =_?=ions. GENERAL PROVISIONS. This Note and is payable on demand. The inclusion of specific default provisions or rights of Lender shall not preclude Landers righl to declare payment of this Note on its demand. Lander may delay or fon3o enforcing any of its rights or remedlas under this Note without losing them. Each Borrower undersfands and agrees that, with or without ~ to Boo'owor, Lender ma~' with respecl to any other Ben-owor (a) make one Or more additional secured or uP__~ecured loans or othenvtse extend additional credit; (b) alter, compromise, renew, extend, acce~fa, or otherwise change one or mom times the time for payment or other terms any indeblad _r~__. including Increases and decreases of the reto of interest on the indebtedness; (c) exchange, enflxce, waive, subordinate. ~ or decide not to pedect, and release any assu~ily, with or without the substitution of new coilatsreJ; (d) apply such secUrity and dired the order or msnno*' of sale there, indudiug without limifation, any non.--judinfal sale pannltted by the terms of rite conlroillng secudty agreements, as Lender in ils discn~ may determine; (e) r.~_==,e, substitute, agree not to sue, or deal with any one or more of Borrower's sum~, endomors, or other guarantors on any terms or in any msrmer Lender may choose; and (f) defarmthe how, when and what application of payments and credits shall be made on any other inde~fadnsss owing by such uther Bon'ower. BO~TOWer and any' other person who signs, guara _~__ or andorses this Note, to the extent allowed by law, waive p~sentrnent, demsnd for payment, and noftoe of dlahonor. Upon any change in the terms ot this Nofa. and unless othe~ ex~ _re~__~y. stated In writing, no party who signs this Note, whether as maker, guer~ntor, accommodation maker or endorser, shall be re~ from liability. All such per~ agree that Lender may renew or extend (repaafadly and ~r any length of time) this loan er release any pady or guenintor or collateral; Or impair, fail to rastiza upon or pea;eot Landers security interest In the cdifateral; and take any other =clton deemed r~ by Lender withoul the consent ot or nstico to anyone. NI such I~ also agree that Lender ms~/modify this loan without the consent of or noltco to anyone other than the parly with whom the mo~aon is made. The obligations under b"tts Note are joint and several. If any podion of this Note is lor any reason determlnod to be unei~;~ble, it will not aheot the enforceability of any other provtsh3ns of this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTI.-I(}RIZES ANO EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMON--TH OF FENNSYLVANIA, OR ELSEV~, TO APPEAR AT ANY TIME FOR BORROV~ At- I =R A DEFAULT UNDER THIS NOTE AND WITH OR WlTHOLIT COMPLAINT Fll k'n, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COL[.A'rERAL SECURING THIS NUl,-, TOGETHER WITH COSTS OF SUIT, AND AN A']-rORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCFtiJED INTEREST FOR COI.LECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS (~3500) ON WHICH JUOGMENT OR JLEX~MENTS 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 AUTH(:)R]TY G.=IAN I tau IN THIS NOTE TO ~SS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSi'r=O BY ANY E:X~_RCISE OF THAT AUTHORITY. BUT SHALL CONTINUE FROM TIME TO ']']ME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AIVlOUNTS DUE UNDEFI THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO Nonce OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CAI i ;r3 THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REFRESEN[P_u BY INDEPENDENT LEGAL COUNSEL PRIOR TO SIGNING THIS NOTE, EACH BORROWER RF..~ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. EACH BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY HOTE. THIS NOTE IS GIVEN UNDER SEAL. AND IT IS INTENDED THAT THIS NDTE IS ANO SHALL CONSTITUTE AND HAVE THE ~J-p~-CT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: ~ronce ~?leman, Inevid,-qy Ette A. aommm~.~ndivmualty KEYSTONE FINANCIAL BANK, N. A. now by merger, M & T BANK Plaintiff VS. LAWRENCE C. ZIMMERMAN ETTA A. ZIMME~RMAN Defendants IN THE COURT OF COMMON PLEAS COUNTY OF CUMBEI~LAND COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION LAW CIVIL TERM 2002 ENTRY OF APPEARANCE TO THE PROTHONOTARY: Plea. se enter our appearance on behalf of Plaintiff, Keysone Financial Bank, N. A., now by merger M & T Bank and enter judgment for Plaintiff and against Defendants Lawrence C. Zimmevman and Etta A. Zimmerman for damages. Duncan & Hartman, P.C. DATED: 1- ~ C.(~ ~ By: William A.~D-~uncan, Esquire Attorney for Plaintiff KEYSTONE FINANCIAL BANK, N. A. now by merger, M & T BANK Plaintiff VS. LAWRENCE C. ZIMMF~ ETTA A. ZIMMERMAN Defendants IN THE COURT OF COMMON PLEAS COUNTY OF CUMBERLAND COMMONV~EAL~ OF PENNSYLVANIA CIVIL ACTION LAW CIVIL TERM 2002 TO: LAWRENCE C. ZIMMERMAN ETTA A. ZIMMERMAN Defendants You are hereby notified that on January 22, 2002, judgment by Confession was entered against you in the sum of $109,~00.38 in the above- captioned case. DATE: Prothonotary YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL CUMBERLAND COUNTY CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA, 17013 717-249=3166 I hereby certify that the following is the address of the defendants as stated in the certificate of residence: 86 DEWALT DRIVE ~IVIECHANICSBURG~ PA 17055 t~t~'fliiam A. ~ ~ttom,y for Plaintit~ A , Defendido/a Defendidos/as usted esta siendo notificado que el (day) de (month) del 2002, se anoto en contra suya un fallo pot confesion en la suma de $109,500.38 en el caso mencionado en el epigraf¢. Prothonotario USTED DEBE LI.F. VAR INMEDIATAMENTE ESTE DOCUMENTO A SU ABOGADO. SI USTED NI TIENE UN ABOOADO O NO PUEDRE PAOARLE A LrNO, LLAME O VAYA A LA SIOUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PENNSYLVANIA, 17013 717-249-3166 Certifico que la siguiente direccion es ia del defendido/a sc-gun indicada en el certifieado de residencia: Abogado del Demandante