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HomeMy WebLinkAbout12-0974 C") c ,--•. ZFJ M ' vo -t? r,-a METTE, EVANS & WOODSIDE t!r Heather Z. Kelly, Esquire © I.D. No. 86291 zC ter: 3401 North Front Street ^.• '' P.O. Box 5950 -? -c ° C) - Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) hzkellygmette.com Attorneys for Plaintiff METRO BANK, f/k/a COMMERCE IN THE COURT OF COMMON PLEAS OF BANK/HARRISBURG, N.A., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DOCKET NO. /02 - g'r a-1 V t< THE ENFIELD GROUP, LP Defendant CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney as contained in the Note, 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: $1,048,176.29 Interest through 1/31/12: $20,612.45 Late charges through 1/31/12: $9,315.24 Satisfaction fees: $50.50 Prepayment Penalty $20,963.52 Attorneys Commission (10%) $109,911.80* TOTAL $1,209,029.80 441v'Do PO A`rrY 6w 1040$(0 R'* c27/0&3 No C" IUou.w *Only reasonable attorney's fees will be collected by the attorney. Interest at the per diem rate of $180.52, attorney's fees and costs of this action continue to accrue. Respectfully submitted, METTE, EVANS & WOODSIDE zv,i'l, Heather Z. Kelly, squire 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: February 13, 2012 METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire 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. THE ENFIELD GROUP, LP Defendant e--) C' 4Q . n Z c=1 ..-C-- ?. © ca IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 01vt l lerxf 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 chartered bank with an address at 3801 Paxton Street, Harrisburg, PA 17111. 2. Defendant is The Enfield Group, LP, a Pennsylvania limited partnership located at 525 North 12th Street, Lemoyne, Cumberland County, Pennsylvania, 17043. 551163v1 3. On June 9, 2008, Defendant executed a Promissory Note in the original principal amount of One Million One Hundred Twenty Five Thousand Dollars ($1,125,000.00) in favor of Plaintiff. A true and correct copy of the Promissory Note (the "Note") is attached hereto as Exhibit "A". 4. Defendant's payment and performance obligations are secured by a security interest created by a June 9, 2008 Open-End Mortgage and Security Agreement executed by Defendant as Grantor and the Plaintiff as Lender and recorded in the Office of the Records of Deeds for Cumberland County, Pennsylvania on June 10, 2008 as instrument number 200819436, relating to property known as 600 North 12'h Street, Lemoyne, Pennsylvania, 17043. 5. Defendant has defaulted under the Note by failing to make payments when due. 6. The Note was executed in connection with a commercial transaction. 7. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 8. The Note has not been assigned. 9. Judgment has not been entered on the Note in any jurisdiction. 10. The entire remaining indebtedness evidenced by the Note is due and payable, and Defendant's total indebtedness to Plaintiff as of January 31, 2012 is $1,209,029.80, which is computed as follows: Principal: $1,048,176.29 Interest through 1/31/12: $20,612.45 Late charges through 1/31/12: $9,315.24 Satisfaction fees: $50.50 Prepayment Penalty $20,963.52 Attorneys Commission (10%) $109,911.80* TOTAL $1,209,029.80 *Only reasonable attorney's fees will be collected by the attorney. Interest at the per diem rate of $180.52, attorney's 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 $1,209,029.80 plus continuing interest at the per diem rate of $180.52, attorney's fees and costs. Respectfully submitted, METTE, EVANS & WOODSIDE Bather Z. Kelly, 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: February 13, 2012 VERIFICATION I, John T. Robertson, Vice President, Asset Recovery Manager, at Plaintiff Metro Bank f/k/a Commerce Bank/Harrisburg, N.A, 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, 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 aut ities. ; - - T. obertson, Vice-President Ass covery Manager, Metro Bank f/k/a Commerce Bank/Harrisburg, N.A. Dated: Y3?/.?- ?? \?` i\ PROMISSORY NOTE Principal Loan Date Maturity Loan No call / Coll Account Officer Initials $1,125,000.00 06-09-2008 06-09-2028 3649250 603746 2112 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: The Enfield Group, LP Lender: COMMERCE BANK/HARRISBURG N.A. 525 North 12th Street COMMERCIAL MORTGAGE DEPARTMENT Lemoyne, PAA 17043 043 COPY 3801 PAXTON STREET HARRISBURG, PA 17111 (717) 975-5630 Principal Amount: $1,125,000.00 Date of Note: June 9, 2008 PROMISE TO PAY. The Enfield Group, LP ("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. One -Million. One. Hundred Twenty-five Thousand b 00/100 Dollars (41,125,000.00), together with Interest on the unpaid principal balance from June 9, 2008, until paid in full. PAYMENT. Subject to any payment changes resulting from changes in the Index, Borrower will pay this ban in accordance with the following payment schedule: 12 monthly consecutive interest payments, beginning July 9, 2006, with interest calculated on the unpaid principal balances at an interest rate of 6.200% per annum: 48 monthly consecutive principal and interest payments In the initial amount of $8,468.31 each, beginning July 9, 2009, with Interest calculated on the unpaid principal balances at an interest rate of 6.200% per annum; 179 monthly consecutive principal and interest payments In the Initial amount of $8,359.59 each, beginning July 9, 2013, with interest calculated on the unpaid principal balances at an interest rate based on the Prime Rate as published in the Money Rate Section of the Wall Street journal (currently 5.000%), plus a margin of 1.000 percentage points, resulting In an Initial interest rate of 6.000%: and one principal and interest payment of $8,359.06 on June 9, 2028, with Interest calculated on the unpold principal balances at an Interest rate based on the Prime Rate as published In the Money Rate Section of the Wall Street Journal Icurrently 5.000%), plus a margin of 1.000 percentage points, resulting In an Initial interest rate of 6.000%. This estimated final payment is based on the assumption that all payments will be made exactly as scheduled and that the Index does not change; the actual final payment will be for all principal and accrued Interest not yet paid, together with any other unpaid amounts under this Nola. Unless otherwise agreed or required by applicable law, payments 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 365/360 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 Lander at Lender's address shown above or at such other place as Lender may designate in writing. VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an independent index which is the Prime Rate as published in the Money Rate Section of the Wall Street Journal (the "Index"). The Index is not necessarily the lowest rate charged by Lender on its bans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notifying Borrower. Lender will tell Borrower the current Index rate upon Borrower's request. The interest rate change will not occur more often than each daily. Borrower understands that Lender may make loans based on other rates as well. The Index currently is 5.000% per annum. The interest rate or rates to be applied to the unpaid principal balance during this Note will be the rate or rates set forth herein in the 'Payment" section. Notwithstanding any other provision of this Note, after the first payment stream, the interest rate for each subsequent payment stream will be effective as of the last payment date of the just-ending payment stream. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law. Whenever increases occur in the interest rate, Lender, at its option, may do one or more of the following: IA) increase Borrower's payments to ensure Borrower's loan will pay off by its original final maturity date, 18) increase Borrower's payments to cover accruing interest, iC) increase the number of Borrower's payments, and (D) continue Borrower's payments at the same amount and increase Borrower's final payment. PREPAYMENT PENALTY. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of the date of the ban and will not be subject to refund upon early payment lwhether 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. However, the penalty Is not applicable N the property Is sold to a bona fide third party. 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 adding a 4.000 percentage point margin ('Default Rate Margin"). The Default Rate Margin shall also apply to each succeeding interest rate change that would have applied had there been no default. After maturity, or after this Note would have matured had there been no default, the Default Rate Margin will continue to apply to the final interest rate described in this Note. 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 ("Event of 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 Lender 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. Environmental. Default. Failure of any party to comply with or perform when due any term, obligation, covenant or condition contained in PROMISSORY NOTE Loan No: 3649250 (Continued) Page 2 any environmental agreement executed in connection with any loan. False Statements. Any warrenty, 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. Death or Insolvency. The dissolution or termination of Borrower's existence as a going business or the death of any partner, 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. Events Affecting General Partner of Borrower. Any of the preceding events occurs with respect to any general partner of Borrower or any general partner dies or becomes incompetent. Change In Ownership. The resignation or expulsion of any general partner with an ownership interest of twenty-five percent (25%) or more in 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. It any default, other than a default in payment is curable and it Borrower has not been given a notice of a breach of the 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: 11) cures the default within fifteen (15) days: or : (2) it 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' tees, 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 low, the laws of the Commonwealth of Pennsylvania without regard to Its conflicts of low 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 June 9, 2008, to Lender on real property located in Cumberland County, Commonwealth of Pennsylvania. OPTION TO DECLARE LOAN DUE. Although the repayment of the ban evidenced by this instrument has been designed as if it were to extend for the term established in the "Payment' section, hereinabove outlined, Borrower understands that Lender expressly reserves the right and option, exercisable at its discretion, to declare the entire unpaid principal balance under this Promissory Note together with all interest which shall have accrued thereon to be due and payable on the fifth (5th) anniversary of the date of this Promissory Note and on each succeeding Five 15) year anniversary of that date during the term hereof, hereinafter referred to as 'Loan Call Date'. In the event that Lender desires to exercise its option to declare the Loan due, it shall deliver written notice thereof by regular first class mail to Borrower's lest known address 90 days prior to the Loan Call Date. In the event that Lender desires to exercise its option to declare the Loan due, it shall deliver written notice thereof by hand delivery, nationally recognized overnight courier or regular first class mail to Borrower's last known address at least 90 days prior to the Loan Call Date. Borrower shall, on or before the Loan Call Date immediately following such notice, repay the entire principal balance due under the Promissory Note together with all unpaid interest which shall have accrued thereon as well as any other sums which may then be due under the Promissory Note or any other document constituting a part of the within ban transaction. Notice provided by first class mail to Borrower's last known address shall be deemed to have been delivered when deposited in the mail. POST CLOSING COMPLIANCE. Borrower agrees to execute, re-execute, cause a Guarantorls) or other third party(les) involved in the ban 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 110) 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. COMMITMENT LETTER COMPLIANCE.. This loan is contingent upon Borrower's compliance with all of the terms and conditions in the commitment letter issued by Lender to Borrower on or about June 3, 2008. Upon breach of any term of condition therein Lender shall have the right to declare this loan in default and demand payment in full of the principal balance remaining unpaid, together with all interest, which shall have accrued thereon. . SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, PROMISSORY NOTE Loan No: 3649250 (Continued) Page 3 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 it 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, partner, 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. It any portion of this Note is for any reason determined 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 OF 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 00%) 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. PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. 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: THE ENFIELD GROUP, LP 2009 ENFIELD, LLC, General Partner of The Enfield Group, LP By:. (Seal) Charles R. Davis, Sole ember of 2009 Enfield, LLC LASO r 1.d & w. 1.?== C- w IY. f-"P ?. IM. f . Y Mpe 11w • M f:MRAftI02&K ?WF MIS DISCLOSURE FOR CONFESSION OF JUDGMENT Principal Loan Date Maturity Loan No Call / Coll Account Officer Initials $1,125,000.00 06-09-2008 06-09-2028 3649250 603746 2112 1 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. Declarant: The Enfield Group, LP Lender: COMMERCE BANK/HARRISBURG N.A. 525 North 12th Street COMMERCIAL MORTGAGE DEPARTMENT Lemoyne, PA 17043 3801 PAXTON STREET HARRISBURG, PA 17111 (717) 975-5630 DISCLOSURE FOR CONFESSION OF JUDGMENT THE UNDERSIGNED IS EXECUTING ON BEHALF OF DECLARANT, THIS _ DAY OF -)LVrL .20 OV, A PROMISSORY NOTE FOR $1,125,000.00 OBLIGATING DECLARANT TO REPAY THAT AMOUNT. A. THE UNDERSIGNED UNDERSTANDS THAT THE NOTE CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST DECLARANT IN COURT, AFTER A DEFAULT ON THE NOTE, WITHOUT ADVANCE NOTICE TO DECLARANT AND WITHOUT OFFERING DECLARANT AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST DECLARANT UNDER THE NOTE, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S ENTERING JUDGMENT AGAINST DECLARANT BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION. - INITIALS: ' •,?.?.r,•.,.,.,,,?'.'?....? B. THE UNDERSIGNED FURTHER UNDERSTANDS THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST DECLARANT WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE ALSO CONTAINS LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A HEARING, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING DECLARANT'S PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE RIGHTS, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMENT IN ANY MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING DECLARANT ANY ADVANCE NOTICE. INITIALS: A F11- C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH STATEMENT THAT APPLIES, THE UNDERSIGNED REPRESENTS THAT: INITIALS 1. DECLARANT WAS REPRESENTED BY DECLARANT'S OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE NOTE. 2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE TO DECLARANT'S ATTENTION. THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. DECLARANT: THE ENFIELD GROUP, LP 2009 EN W, I.I.C. Gen al Partner of The Enfield Group, LP Assail) Charles R. Davis, sow ember of 2009 Enfield, LLC u+e? wa L„ft, V,,. L44=0m C- n ft, LMi,,,. " viz, m N %k, M..,& . ?^ a:WnLLlLlDao.IC n?xo wau METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire I.D. No. 86291 c-) ? c ' 3401 North Front Street ? --+ P.O. Box 5950 t `"`i = ?'' Harrisburg, PA 17110-0950 CA i - ° ?? (717) 232-5000 .<30 °,y (717) 236-1816 (fax) hzkelly cr mette.com 0 } Attorneys for Plaintiff , o C.) METRO BANK, f/k/a COMMERCE IN THE COURT OF COMMON PLEAS OF BANK/HARRISBURG, N.A., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DOCKET NO. /a - 9?y C1 Vi 1 Ter#,,- THE ENFIELD GROUP, LP Defendant 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: The Enfield Group, LP 525 North 12th Street Lemoyne, PA 17043 Date: February 13, 2012 Heather Z. Kell , squire Attorney for Metro Bank, f/k/a Commerce Bank/Harrisburg, N.A. METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire 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. THE ENFIELD GROUP, LP Defendant Cl) o Ca - G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. /a - g 7 q 010 t TPfN Notice Under Pa R.C.P. 2958.1 Of Judgment And Execution Thereon Notice of Defendant's Rights TO: The Enfield Group, LP 525 North 12'h Street Lemoyne, PA 17043 A judgment in the amount of $1,209,029.80 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 ?k? -?- A?'ZA"- Heather Z. Kelly, 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: February 13, 2012 METTE, EVANS & WOODSIDE Heather Z. Kelly, Esquire 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 sv ? "r'1 a METRO BANK, f/k/a COMMERCE IN THE COURT OF COMMON PLEAS OF BANK/HARRISBURG, N.A., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DOCKET NO. OIvl iTEI'M THE ENFIELD GROUP, LP Defendant 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: The Enfield Group, LP 525 North 12'h Street Lemoyne, PA 17043 Pursuant to 42 Pa.C.S.A. 273 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 n eather Z. Kelly, 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: February 13, 2012 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 I.D. No. 86291 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) METRO BANK, f/k/a COMMERCE IN THE COURT OF COMMON PLEAS OF BANK/HARRISBURG, N.A., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DOCKET NO. /a 97? 0,iV11 &A THE ENFIELD GROUP, LP Defendant NOTICE OF ENTRY OF JUDGMENT TO: The Enfield Group, LP 525 North 12'h Street Lemoyne, PA 17043 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 $1,209,029.80, as provided in the Note referenced in the Complaint plus continuing interest, attorney fees and costs. Proth otary of Cumberland County a 1 (SEAL) Date By: SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ???l?tiu ?i' ?aranbct,rt?tt? L: HE P 0110 A11" Jody S Smith Chief Deputy Richard W Stewart Solicitor 7-5I2 MAR - I PM 3. 42 vUMBERLAND E?OUNT`I,. I ENNSYLVANIA Metro Bank Case Number vs. 2012-974 The Enfield Group, LP SHERIFF'S RETURN OF SERVICE 02/17/2012 08:19 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on February 17, 2012 at 2019 hours, he served a true copy of the within Complaint in Confession of Judgment, upon the within named defendant, to wit: The Enfield Group, LP, by making known unto Diane Byerly, Cosignor for The Enfield Group, LP at 525 N. 12th Street, Lemoyne, Cumberland County, Pennsylvania 17043 its contents and at the same time handing to her personally the said true and correct copy of the same. TIM BLACK, EPUTY SHERIFF COST: $44.00 February 23, 2012 SO ANSWERS, RON R ANDERSON, SHERIFF !"F THE ?WHOW TAR"; 2112 JUN 28 AM 8' 54 CUMIeRLANU COUNTY PERRSYLVANIA 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_@Mette.com Attorney for Plaintiff METRO BANK, f/k/a COMMERCE BANK/HARRISBURG, N.A. Plaintiff V. THE ENFIELD GROUP, LP Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 12-974-Civil PRAECIPE FOR SATISFACTION OF JUDGMENT TO THE PROTHONOTARY: Please mark the Judgment satisfied in the above-captioned action. Respectfully submitted, METTE, EVANS & WOODSIDE Date: June 22, 2012 By. Heather Z. Ke y, Esquire Sup. Ct. I.D. # 86291 METTE, EVANS & WOODSIDE 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorneys for Plaintiff l1aj,( '4'A4' ??? %3/,el CERTIFICATE OF SERVICE I, Heather Z. Kelly, Esquire, an attorney with the law firm of Mette, Evans & Woodside, do hereby certify that on the date listed below, I did serve a true and correct copy of the foregoing PRAECIPE FOR SATISFACTION OF JUDGMENT, upon the following person, by hand-delivering the same: Jerry R. Duffie 301 Market Street Lemoyne, PA 17043 ' A?ZL14_'? Heather Z. Kell , squire e Sup. Ct. I.D. # 86291 METTE, EVANS & WOODSIDE 3401 N. Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Attorneys for Plaintiff Date: June 22, 2012 5568540