Loading...
HomeMy WebLinkAbout12-2721T Hui v, pti ?'uic S.:l I g j 1E LRLP,'N0 C0 U L. C. Heim, Executor of the Estate of F. SALETA STEWART, deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. ?' a? a C ul l 20 Civil Term Plaintiff CONSTANTINOS MALLIOS Defendant NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILLING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PEOPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 139 a* .2-)qs?6 L. C. Heim KATHERMAN, HEIM & PERRY Attorney I.D. No. 23155 345 East Market Street York, PA 17403 (717) 854-5124 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA L. C. Heim, Executor of the Estate of F. SALETA STEWART, Deceased Plaintiff vs. CONSTANTINOS MALLIOS Defendant : COMPLAINT 1. Plaintiff is L. C. Heim, Executor of the Estate of F. Saleta Stewart, Deceased, whose address is 345 East Market Street, York, PA 17403. 2. Defendant is Constantinos Mallios, an adult individual with a place of business located at 15 State Avenue, Suite 103, Carlisle, Pennsylvania 17013. 3. On or about May 12, 2010, the plaintiff's decedent loaned the amount of $100,000.00 to defendant at an interest rate of 5% per annum, to be repaid in monthly payment of interest only for two years with a payment of all outstanding principal within two years. Plaintiff believes that the obligation was in writing, however plaintiff does not have a copy of the note. 4. Defendant acknowledged the existence of the note in a letter dated June 16, 2011, a copy of which is attached hereto as Exhibit A. 5. Defendant requested a copy of the note in a writing dated June 30, 2011, however the request has not been honored by defendant. A copy of the writing is attached hereto as Exhibit B. 6. No payment to plaintiff has ever been made on the note, despite demand, which non-payment constitutes a default. 7. It is believed that the note has terms the same as another note between the parties, also in the amount of $100,000.00 at 5% interest dated September 23, 2010, which contains provisions for a delinquency charge of 10%, acceleration of the indebtedness upon default, and reasonable attorneys fees and costs. WHEREFORE, plaintiff demands judgment against the defendant in the amount of $100,000.00, with interest in the amount of 5% from the date of the note, delinquency charges of 10%, reasonable attorneys fees and costs of suit. KATHERMAN, HEIM & PERRY L. C. Heim I hereby verify that the statements in this COMPLAINT are true and correct to the best of my knowledge information and belief. I understand that false statements herein are made subject to the penalties of 18 PA.C.S. Sec. 4904, relating to unsworn falsification to authorities. DATEAW,Z E&ecutor of the Estate of F. Saleta Stewart Deceased 15 State Ave., Suite 103 Carlisle, PA 17013 Attorney L. C. Heim Katherman, Heim & Perry 345 East Market Street York, PA 17403 Dear Attorney Heim: Office: 717.243.5400 Fax: 717.243.5417 June 16, 2011 Via Hand Delivery Fax: 848-5898 I am sorry that it's taken me this long to get back to you. Thank you for inviting me to meet with you on May 13, 2011 regarding the Saleta Stewart Estate. As you know I had a great working relationship with Saleta. My role originally was to sell the property for her as I had sold a number of mobile home parks over the last 10-12 years. With no prospective buyers in sight for 1 % years, she offered us an arrangement to buy the mobile home park. I made it very clear that I was not in a position to personally back the project. My two partners, who were professionals, wanted no personal liability and exposure with regard to the purchase. Saleta was agreeable to that. We all thought that if we could develop the park, that is if we could fill the lots and develop the second part of phase 2 (26 lots) then everything would pretty well work out. Unfortunately the market for mobile home rentals has just basically crashed. At the present time there are 25 empty lots. The reason that the mobile home park appraised out was because Saleta guaranteed the payment of 12 lots for a period of 18 months. We all thought those lots would end up being rented. Unfortunately they didn't. It doesn't appear to be a prospect for a bright horizon for manufactured housing sales and rentals because with home mortgages being as low as 4 Y2 to 5% people are able to buy townhouses for monthly payments of about $670-$750 per month. They have at least as much square footage as you would in a double wide, plus you get a built in garage and many times more amenities and amortization of principal. The price of gas is not helping this project because it is not near any jobs, or shopping. For any kind of amenity one would have to travel. I think that the potential for the project has just not materialized. We owe a little more than $2 million on the project not counting the $1,000,000 note to Saleta. What I would propose to do is I think I can get the project sold for about $2.4 million after considering the improvements and some of the things we have done to try to comply with the municipal requests. I would in turn agree to use all my commission to pay off the one $100,000 note to Saleta, with the balance going to Saleta's estate. ?idz;?b,f A inkPHA STATE REALTY wwmalnhastaterealty. rom 15 State Ave., Suite 103 Carlisle, PA 17013 Page 2 kPHA STATE REALTY Office: 717.243.5400 Fax: 717.243.5417 I have two $100,000 notes. One of the $100,000 notes was an advance on the sales commissions on 16 homes. Generally we get 10% without any work (set ups, etc.). The schedule of sales prices was put together for $1,984,600. These prices were set by Saleta and were not realistic for the product or times. She offered me 20%, but I would have to put up the garages, etc., on 5 units. This is the money that was being used to pay the $100,000 note. I am sending the schedule that was.prepared by Saleta. Unit 3 sold for $40,000. 1 am entitled to $8000 credit. Two units have been sold off the street and even though I am not there, Susan has been there as our paid representative. I am entitled to commission credit on these units. I have these in the multilist, newspaper advertising and magazines. I believe that this will be paid off from the sales, but we need to re- evaluate the pricing. I would like permission to sell them for $60,000 to $90,000. They presently are at $99,000 to $159,000. The $75,000 escrow was agreed to just before settlement because there were issues at the property that were not corrected to Township standards that were supposed to have been done by settlement and were going to be beyond the letter of credit. This money was used for repairs before the draw on the Susquehanna Bank letter of credit. List for repairs of credits used as follows: 1. Westhafer - contract work to stabilize units (Had to be paid to remove lien filed prior to settlement) 2. Engineering Madden (Paid) 3. Engineering Madden (Still owed) 4. Contracted services 5. Mowing & upkeep (on Phase 3) - Amigo Brothers 6. Repairs 7. Hamilton Township Review fees 8. Mower Saleta said the mowers were in good working shape at Contract time. We could not use the existing mowers. Saleta ok'd new mower and negotiated the purchase. Total $10,000.00 $16,041.60 $ 2,249.70 $ 540.00 $ 9,324.22 $ 6,888.00 $ 1,991.91 $11,844.96 $58,880.39 www.alphastaterealty. com PHA 15 State Ave., Suite 103 TAT A%SREALTY Carlisle, PA 17013 Page 3 Office: 717.243.5400 Fax: 717.243.5417 There is $16,119.61 left from account which we are holding pending overruns on the Hamilton Township letter of credit. Before settlement Saleta hired someone to put in a cul de sac without the proper base or inspection. The Township insists that it be removed and done properly. We understand this is going to cost approximately $10,000. Anything that is not used on the Susquehanna Bank letter of credit to satisfy the Township would go back to Saleta's estate. I am available to meet to go over any questions you may have. I will bring over a check for $4,448.39 by the end of the. month. Sincerely, Charlie Mallios www.alphastaterealty.com KATHERMAN, HEIM & PERRY Attorneys at Law 345 East Market Street York, Pennsylvania 17403 (717) 854-5124 FAX 848-5898 FAX MEMO TO: Constantinos Mallios OFFICE: Alpha State Realty FAX NO: 717-243-5417 DATE: June 30, 2011 NUMBER OF PAGES (including this one): 1 FROM: L. C. HEIM REMARKS: I have now reviewed your letter of June 16, 2011, with Susan Stewart, President of Pine Run, Inc. Thank you for acknowledging the existence of two $100,000.00 notes. I can only find the one note of 9/23/10 that was the subject of previous conversation, although I have evidence of the transfer of a second $100,000.00. You state that this was intended as an advance of sales commissions. Is that stated in the note or otherwise documented? If it is please provide me with this. As to commissions, the agreement states that the commission would be in consideration of you performing the set up, erection of the homes, getting them in condition to be sold, preparing them of occupancy, finding buyers, moving the homes, constructing foundations and securing the homes. Three homes have been sold, however nothing in my file indicates that you performed any of these services which were required in order to earn a commission. If you have evidence to the contrary, please provide me with it. As to the disbursements from the escrow funds, I would like documentation of the engineering bill owed ($2,249.70), contracted services ($540.00), repairs ($6,888.00) and the Township review fees ($1,991.91). The Amigo Brothers bill of $9,324.22 is disputed in that it was not for Phase 3, but for Phases 1 & 2 which are ARM2, LLC's responsibility. Phase 3 mowing is being paid by Pine Run, Inc. The cost of purchasing a new mower is also disputed. I have read the agreement of sale and there was absolutely no warranty given on the personal property, other than title. Your letter also stated that you would be paying $4,448.39 by today. Because of this representation I have not confessed judgment on the note. The error in my initial calculation was cleared up today, so I will expect payment tomorrow. IF THERE ARE ANY QUESTIONS OR PROBLEMS IN THE TRANSMISSION OF THIS MATERIAL, PLEASE CALL (717) 854-5124 AND ASK FOR ROSE. erwy h '# b 6 SHERIFF'S OFFICE OF CUMBERLAND COUNTY - ) C C:: Ronny R Anderson .zS3 M rn w Sheriff Go Jody S Smith Chief Deputy Richard W Stewart C:• C--. Solicitor Z 9=1 L.C. Heim Case Number vs. Constantinos Mallios 2012-2721 SHERIFF'S RETURN OF SERVICE 05/08/2012 02:46 PM - William Cline, Corporal, who being duly sworn according to law, states that on May 8, 2012 at 1446 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Constantinos Mallios, by making known unto herself personally, at 15 State Avenue, Suite 103, 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. LIAM CLINE, DEP SHERIFF COST: $34.00 May 09, 2012 SO ANSWERS, RON R ANDERSON, SHERIFF ,. ~~ ~~ t t~ ~~RL AND ~pU~ T ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV CIVIL DIVISION L. C. HEIM, SUCCESSOR TRUSTEE OF THE F. SALETA STEWART REVOCABLE: TRUST PLAINTIFF V. CONSTANTINOS MALLIOS DEFENDANT CIVIL ACTION: 12-2721 NOTICE You have been sued in court. If you wish to defend against the claims set forth the following pages, you must take action within twenty (2d) days after this complaint and noti~ are served, by entering a written appeazance personally or by attorney and filing in writing with tl court your defenses or objections to the claims set forth against you. You are warned that if you f~ to do so the case may proceed without you and a judgment may be entered against you by the col without fiarther notice for any money claimed in the complaint or for any other claim or reli requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU D NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE TH OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717)249-3166 AVISO Le han demandado a usted en la corte. Si usted quiere defenderse de estas demand expuestas en law paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de demanda y la notificacion. Hace falta asentar una comparencia escrita o en persona o con i abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas ~ contra de su persona. Sea avisado que si usted no se defiende, is corte tomara medidas y puec continuer is demands en contra suya sin previo aviso o notificacion. Ademas, la corte puede deck a favor del demandante y requiere que usted cumpla con todas law provisioner de esta demand Usted puede perder dinero o sus propiedades u otros derechos importantes pars usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO 7 ABOGADO O SI NO TIENE ELDINERO SUFICIENTE DE PAGAR TAL SER VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIREC SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE P CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 Dusan Bratic, Esq. Brafic & Portko LLC 101 South US Route 15 Dillsburg, PA 17019 717-432-9706 Fax: 717-432-9220 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLV. CIVIL DIVISION L. C. HEIM, SUCCESSOR TRUSTEE OF THE F. SALETA STEWART REVOCABLE: TRUST PLAINTIFF V• CIVIL ACTION: 12-2721 CONSTANTINOS MALLIOS DEFENDANT ANSWER TO COMPLAINT & NEW MATTER NOW COMES the Defendant by and through his attorneys Bratic & Portko LLC files the following Answer to Complaint with New Matter in the above Civil Action. 1. Admitted. 2. Admitted. 3. Admitted in part, but the money was to be repaid from the sale of housing units owned by the Plaintiff and/or F. Saleta Stewart individually. 4. Admitted. 5. Admitted in part. Denied in part. It is admitted that Defendant received $100,000. It is denied that any moneys are due as the money was to be repaid out of the sale manufactured homes owned by the Plaintiff as set forth in the New Matter and Counterclaim. 6. Denied that no payments were made. Payments were made as follows: $4215.7 was paid on 7/14/2011 by check #5234, a copy of which is attached as Exhibit A. payment of $2,666.70 was made in December 8, 2011, which is evidence by a receipt attached Exhibit B. 7. It is denied that there was ever any promissory or delinquency charges due on second loan of one hundred thousand dollars, which was to be repaid out of commissions. said moneys were an advancement on commissions. It is denied there was ever any attorney due. NEW MATTER 8. Paragraphs 1 through 7 of this pleading are incorporated herein by reference as stated in full. 9. The Plaintiff contracted with the Defendant to sell fifteen (15) manufactured homes. The two $100,000 notes were advancements for the sales of units owned by Seller. F. Saleta Stewart valued the homes collectively at $1.2 to $1.6 million dollars. The Defendant Mallios was to receive a 20% commission on the gross sale of each unit from the Seller, irrespective of who sold the unit. See attached Exhibit C. 10. The Defendant received only $3,000 in commissions on account of the sale of homes. The Defendant is owed 20% commission on all homes sold, irrespective of who sold homes. _ _ _ _ 11. The Defendant was denied commissions on four sales and was only paid a 10% commission on a fifth sale. No accounting was ever provided for the same. ', 12. The Defendant on behalf of the Seller spent $40,090.35 in advertising in an attempt to sell Seller's homes. See attached summary of bills attached as Exhibit D, together with a prototypical ad. 13. The Defendant believes that the sales of on the remaining ten units would be in the neighborhood of $1,100,000 per attached instructions from the Seller, attached as Exhibit E~ Thereby more than offsetting any amounts due to the Plaintiff. WHEREFORE, the Defendant requests credit to his account, an accounting for the sale manufactured units to date, and credit on future salt - Dated: ~ Z~ ~~ Dusan Bratic, Esq. ID # 19249 Bratic & Portko LLC 101 South U.S. Route 15 Dillsburg, PA 17019 (717) 432-9706 Attorney for Defendant VERIFICATION I, Constantinos Mallios, hereby acknowledge that I am a Defendant in the foregoing Answer, that I have read the foregoing, and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. Date: 8/29/12 _ _ _ _ CERTIFICATE OF SERVICE Dusan Bratic hereby certifies that on August 29, 2012 he caused a true and correct of the above Answer and New Matter to be served via first class mail and facsimile upon: Larry C. Hiem, Esq., Esquire Katherman, Heim & Perry 345 East Mar York, PA 174 8/29/ 12 -.---- Attorney for Defendants -- LPHA 15 State Ave., Suite 103 STATE Carlisle, PA 17013 R E.a ~ r Y Office: 717.2443.5400 Fax: 717.23.5417 Larry G Heim 345 East Market Street York, PA 17403 717-854-5124 July 6, 2011 Dear-Larry, This is a copy of the check for $4,215.37 check #5234. Although I think the figure is incorrec still wanted to send it , in good faith. Sorry I was away and just got back. Please c~lll me in the morning and I will send it overnight or wire it to your account Sincere Charlie Mallios Ce11717-226-2127 -- w.~. -----~-..~..,..._. ALPHA STATE. REALTY 5 2 3 4 BUSINESS A000UNT- 15 STATE AVENUE STE 103 - CARLISLE. PA 17013 60-8224-2313 ~' ~ ~ 1.5'03'1: .~~... e ~ ,. MEMBERS 1ST FEDERAL CREDIT UNION MECHANICSBURG, PA 17055 ~~ ' ~` e ~~e MEMO (7~L ' Z ~: 23 13B 2 2411:5 234 ???3? 1595311' ?? ~I.. nl ti www. a I phasta tereal ty. com ~-~" INTEREST DUE 01-Aug-11 $416.67 Late fee $41.67 01-Sep-11 $416.67 Late fee $41.67 01-Oct-11 $416.67 Late fee 41.67 $1,375.02 01-Nov-11 $416.67 Late fee $41.67 01-Dec-11 $416.67 01-Jan-12 416.67 $2,666.70 Payment 08-Dec-11 -$2,625.03 $41.67 `~ 8 _. ~ _. ,, AGREEMENT TH/S AGREEMENT ("Agr+eement'~ is made and entered into Phis ~~ day of .2010, by and between F. Saleta Stewart of 1608 Druck Valley Road, York, PA 17406 and Constantinos Mallios of 15 State Avenue, Suite 103, Carlisle, PA 17013. Whereas, F. Saleta Stewart owns 16 manufactured homes, which are located at Pine Run Retirement Community located at 1880 Pine Run Road, Abbottstown, PA; and Whereas, F. Saleta .Stewart requests the assistance of Constantinos Mallios to set up, erect and get the homes in a condition to be sold, in consideration of Constantinos Mallios doing alt the work required to set the homes up, prepare them for occupancy and to find buyers of the homes, Sateta Stewart agrees to compensate Constantinos Mallios by the sum of twenty percent (20%) of the gross sale price of each home. It shall be the responsibility of Constantinos Mallios to pay all costs associated with moving the homes from the street and/or to construct foundations, set the homes as well as secure the homes and any modules to each other in accordance with any Township regulations and/or manufacturers spec cations so the homes are available for marketing and occupancy. Constantinos Mallios will also be responsible for the costs associated with marketing the homes. ~~c~~~, ~ ~~~c __ _ _ _ r _ ~ __ The payment .of 20% shall be paid to Constantinos Mallios irregardless of who sells the homes. Payment shall be made to Constantinos Mallios at settlement on each house with a balance due to F. Saleta Stewart. If transfer tax is due Mallios will pay . Mallios will pay any and all cost. IN WITNESS WHEREOF, the parties intending to be legally bound hereto have executed this Agreement on the date first above written. WITNESS: ~U 5 r~.. ~ 1.t1 F. Saleta Stewart - _ --_ _- EXHIBIT D COSTS OF ADVERTISING FOR HOMES OWNED BY SA LETA STE WART FOR SALE AT PINE RUN PAID BY CONSTANTINOS MALLIOS/ARM 2 LLC Billing Date Advertising Amount Date 5/29/10 Com an Preferred Publications Inc Billed/Paid Paid 5/31/10 . Times & News Publishin Co. $425.00 $1134 04 6/23/10 5/31/10 6/1/10 Landmark Communi News a ers LCN of Ma land . $2,402.90 7/12/10 6/24/10 6/30/10 Press & Journal Publications $180.00 6/23/10 7/31/10 LCN of Ma land Times & News Publishin Co $3169.02 8/12/10 7/31/10 . Media One of PA $1558.71 9R/10 8/21/10 Preferred Publications Inc $7663.12 9/3/10 8/30/10 9/30/10 . LCN of Ma land $425.00 $6173.99 9/3/10 9/23/10 9/30/10 Media One of PA LCN of Ma land $4110.14 11/3/10 9/30/10 Times & News Publishin Co $2362.35 11/10/10 10/31/10 . LCN of Ma land $710.07 $2384 78 11/3/10 1 10/31/10 10/31/10 Media One of PA . $1632.60 1/10/10 11/10/10 11/30/10 Times & News Publishin Co. $1064.49 11/26/10 11/30/10 Media One of PA Times & News Publishin Go $1632.60 12/17/10 11/30/10 . LCN of Ma land $803.42 12/23/10 $2258.12 12/23/10 SEE SAMPLE AD EXHIBIT D RETIRER~IEN'~' ~(Jli~TI~1"~` Designed for Independent Lining PINE RLTN, inc ~ 1880°Pine Run Rd. • Abbottstown Rt. 194 N through Abbottstoum;2=1 /2 miles to Pine Run Road on Left (717 259-8644 {800) 683-0706 _~ _ _ _ _ ~ .. ...... ....~ r r r ~ww-v N. rl T r ~.,~ .. r t ®Iti. -nm1~• ' lil i Charlie, This is my inventory and the prices I have on them. Let me know if you need anything else Susan Lot 1 Lot 12 Lot 20 Lot 23 Lot 29 -. Lot 55 Lot 70 Lot 71 Lot 112 Lot 102• Lot 106 304 Crystal Creek Crossing (Office) $160,000 352 Crystal Creek Crossing $62,500 411 Jack-in-the-Pulpit Lane $62,500 403 Jadc-in-the-Pulpit Lane $60,000 416 Jack:-in-the-Pulpit Lane $120,750 225 Runaway Road $140,000 268 Runaway Road $125,000 270 Runaway Road $125,000 267 Runaway Road $135,000 704 Wind-in-the-Willows $95,000 703 Wind-in-the-Willows ~ $'125,750 EXHIBIT E