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HomeMy WebLinkAbout12-5427 MERCHANTS EXPRESS USA, Inc. COURT OF COMMON PLEAS, CUMBERLAND COUNTY PLAINTIFF v. Akrim Yousif , 2012 Individually, jointly and severally, C ~ DEFENDANT ~ and No. _ t!I A.Y. Warren Liquor Inc., d/b/a r'"~, w Yellow Apple Food Center r~'~ ° Corporation >c~> ~ DEFENDANT xb ~ l1? C~f'~ "f b ~ ..4 ~ CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the compliant filed in this action, I appear for the Defendants and confess judgment in favor of the Plaintiff and against the Defendants as follows: Principal: $ 40,005.09 Interest: $ 220.03 Lost Fee Income: $ 2,419.20 Attorney Fees: $ 12,793.30 Total: $ 55,437.62 .U-,: evin M. utkins, Esq. Attorney for Defendants l:~'.." ~~a~~~~ U~h~ Mo~'e~ MERCHANTS EXPRESS USA, Inc. COURT OF COMMON PLEAS, CUMBERLAND COUNTY PLAINTIFF v. . • n ~ ~ Akrim Yousif , 2012 ti Individually, jointly and severally, DEFENDANT ~ and No. ~ o~ - s~ ~ ~t ~ ` ~m © ~ rte., { A.Y. Warren Liquor Inc., d/b/a z Yellow Apple Food Center ~o ~ ?~?C rv q Corporation ~ ~ DEFENDANT C' -c ~ COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY COUNT I -CONFESSION OF JUDGMENT (MEMO V. YELLOW APPLE AND YOUSIF) 1. Plaintiff is Merchants Express USA, Inc., (hereinafter "MEMO"), a Pennsylvania corporation wholly owned by Merchants Express Money Order Company, Inc., and engages in the issuance and sale of money orders and whose address is 1029 Mumma Road, Wormleysburg, Pennsylvania, 17043. 2. Defendant A.Y. Warren Liquor Inc., (hereinafter "Yellow Apple"), is a corporation located at 3888 West Warren, Detroit, Michigan 48208 and doing business as Yellow Apple Food Center. 3. Defendant Akrim Yousif (hereinafter "Yousif'), is an individual residing at 5626 Renshaw Drive, Troy, MI 48085. 4. Defendants Yousif is the owner and/or operator of Defendant Yellow Apple and entered into the Trust Agreement on behalf of said Defendant Yellow Apple and himself on or about July 9, 2009. A true and correct copy of the Trust Agreement under which Defendants Yousif and Yellow Apple are confessing judgment is attached hereto as Exhibit "A". 5. Defendant Yousif, with the intent to induce MEMO to enter into a Trust Agreement with Defendant Yellow Apple, agreed to personally guaranty the obligations of Defendant Yellow Apple. A true and correct copy of the Personal Indemnity and Guaranty under which Defendant Yousif is confessing judgment is included in paragraph 12 of the Trust Agreement and again in paragraph 1 of the Agreement attached hereto as Exhibit "A". 6. The forgoing judgment against Defendants Yousif and Yellow Apple, is not being entered by confession against a natural person in connection with a consumer credit transaction. 7. The Plaintiff has not assigned the Trust Agreement and Personal Indemnity and Guaranty under which judgment is being confessed. 8. The Plaintiff has not entered judgment against Defendants in any jurisdiction for the unpaid sum of $55,437.62 or any additional amount for a total of the debt demanded here. 9. The Defendants jointly and severally acted as selling agents for Plaintiff from August 18, 2009 until August 13, 2012. 10. Pursuant to the Trust Agreement, Defendants are required to hold all monies received by them from the sale of money orders, including money order fees (hereinafter "trust funds"), separate and apart from other funds of the Defendant for collection by the Plaintiff through electronic or other means. 11. The Plaintiff attempted to collect the trust funds from Defendants on August 6, 2012 through an Automated Clearing House (hereinafter "ACH") method. 12. The Plaintiff, or its designated check-clearing banking center did not receive the payment of the trust funds on August 6, 2012, as required by the Trust Agreement. 13. The failure of Plaintiff or its designated check-clearing banking center to receive trust funds from the Defendant in accordance with the Trust Agreement constitutes an event of default allowing Plaintiffto enter judgment against Defendants. 14. Pursuant to the Trust Agreement, the Plaintiff suffered damages by the Defendants conduct as follows: Principal: $ 40,005.09 Interest: $ 220.03 Lost Fee Income: $ 2,419.20 Attorney Fees: $ 12,793.30 Total: $ 55,437.62 15. The Defendants' most recent 10-week sales average equaled 50 money orders causing Plaintiff Lost Fee Income of $2,419.20 as a result of Defendants' default. 16. Plaintiff demands judgment in the aforementioned amount as authorized by the Warrant of Attorney contained in the Trust Agreement attached hereto as Exhibit A. 17. The Warrant of Attorney contained in the Trust Agreement is less than twenty (20) years old. WHEREFORE, Plaintiff demands judgment in the amount of $55,437.62, as authorized by the Warrant appearing in the attached Trust Agreement, together interest from the date of judgment and costs. COUNT II -BREACH OF CONTRACT (MEMO V. YELLOW APPLE AND YOUSIFI 18. The averments set forth in paragraphs 1 through 17 are incorporated by reference as if set forth in full herein. 19. Defendant Yousif signed the above referenced Trust Agreement containing a personal guazanty and indemnity, and the documents appended thereto, on behalf of The Yellow Apple. 20. The failure of Yousif to remit the trust funds is a violation of the terms and provisions of the Trust Agreement is a breach of the fiduciary relationship created by the Trust Agreement. WHEREFORE, Plaintiff demands judgment in the amount of $55,437.62, as authorized by the Warrant appearing in the attached Trust Agreement, together interest from the date of judgment and costs. COUNT III -BREACH OF FIDUCUARY DUTY (MEMO V. YELLOW APPLE AND YOUSIF) 21. The averments set forth in pazagraphs 1 through 20 aze incorporated by reference as if set forth in full herein. 22. The Trust Agreement created fiduciary obligations owed by the Defendant to the Plaintiff. 23. In breach of their fiduciary obligations, Defendant Yousif: a. Failed to hold the trust finds in trust, as property of Plaintiff; b. Deprived Plaintiff of the use and benefits of its money; c. Failed to make the required payments or dispositions of trust funds to Plaintiff; d. Commingled the trust funds with those of their own; and e. Appropriated the trust funds for their own use and benefit, or elsewhere. 24. Defendant performed all of the above actins intentionally, willfully, maliciously, and with wanton disregazd for the rights of Plaintiff. 25. Defendant's actions, as enumerated above, constitute a breach of fiduciary duty to Plaintiff under the laws of the Commonwealth of Pennsylvania and the terms of the Trust Agreement. WHEREFORE, Plaintiff demands judgment in the amount of $55,437.62, as authorized by the Warrant appearing in the attached Trust Agreement, together interest from the date of judgment and costs. COUNT IV -CONVERSION (MEMO V. YELLOW APPLE AND YOUSIF) 26. The averments set forth in paragraphs 1 through 25 are incorporated by reference as if set forth in full herein. 27. Plaintiff avers, on information and belief, that Defendant Yousif converted the trust funds owed Plaintiff to his own personal uses. 28. Defendant Yousif s personal use of the trust funds and thus his intentional deprivation of the use and benefit of the trust funds properly due and owing Plaintiff, constitutes conversion under the laws of the Commonwealth of Pennsylvania. WHEREFORE, Plaintiff demands judgment in the amount of $55,437.62, as authorized by the Warrant appearing in the attached Trust Agreement, together with interest from the date of judgment and costs. COUNT V -UNJUST ENRICHMENT (MEMO v. YELLOW APPLE AND YOUSIFI 29. The averments set forth in paragraphs 1 through 28 are incorporated by reference as if set forth in full herein. 30. Plaintiff avers, upon information and belief, that Defendant wrongfully retained the trust funds. 31. Plaintiff conferred the benefit of the use of the money orders and other property upon the Defendant and said Defendant appreciated, accepted and retained such benefits. 32. The Defendant's retention of the benefits conferred by Plaintiff without paying the value of such benefits would be inequitable and unjust. 33. As a result of Defendant's retention of the trust funds and/or Plaintiffls other property, Defendant has damaged Plaintiff while unjustly enriching himself in the amount set forth above together with the value of the property retained, and the benefits conferred upon Defendant as a result of the use of the money orders and property, plus interest and costs. WHEREFORE, Plaintiff demands judgment in the amount of $55,437.62, as authorized by the Warrant appearing in the attached Trust Agreement, together with interest from the date of judgment and costs. COUNT VI -CLAIM FOR POSSESSION OF PROPERTY AND TRUST FUNDS MEMO V. YELLOW APPLE AND YOUSIF) 34. The averments set forth in paragraphs 1 through 33 are incorporated by reference as if set forth in full herein. 35. The Trust Agreement clearly states that all money orders and trust funds are Plaintiff's property. 36. The terms of the Trust Agreement require the Defendant to segregate and hold apart, all trust funds and/or proceeds from the sale of money orders. 37. The terms of the Trust Agreement clearly state that all non-trust funds and/or property commingled with trust funds and/or proceeds are impressed with a trust for the Plaintiff's benefit. 38. By operation of law, Plaintiff is the owner and Defendant is the trustee for all assets so commingled. 39. Despite Plaintiff's demand for return of the trust funds and other property, Defendant refused to remit the trust funds and other property impressed with a trust by operation of law to Plaintiff in violation of the Trust Agreement. WHEREFORE, Plaintiff demands judgment in the amount of $55,437.62, as authorized by the Warrant appearing in the attached Trust Agreement, together interest from the date of judgment and costs. K vin M. Lu 'ns, Esq. Attorney for Plaintiff Attorney ID: 76859 Date: 3d z VERIFICATION T'he undersigned individual hereby states that he/she is an employee of Merchants Express Money Order Company, Inc., with the authority to verify the statements contained in the foregoing complaint involving Merchants Express USA, Inc., a wholly owned subsidiary of Merchants Express Money Order Company, Inc., a Pennsylvania corporation. The undersigned individual also states that the statements made in the aforementioned complaint aze true and correct to the best of his/her knowledge, information, and belief. The undersigned understands that the statements therein aze made subject to the penalties of 18 Pa. Cons. Stat. §4904 relating to unsworn falsifications to authorities. David Bush MERCHANTS EXPRESS MONEY ORDER COMPANY, INC. AND SUBSIDIARIES 1029 Mumma Rd, P.O. Box 8863 Camp Hill, PA 17001- 8863 (800) 922 - 8079 Fax (717) 214 - 5989 www.memoco.com MONEY ORDERS Trustee Agreement for: Corporation Name: A. Y. WarrEfi Liquor Inc Store Name: Yellow }ale Food Center # of Locations: ~ Address: 3$88 West Warren Avenue Cite: Detroit State: MI Zip Code: 48208 Telephone Number: f313) 897 -0064 Fax Number: E-Mail Address: Website Address: Legal Entity: ~ Corporation ? LLC II Partnership II Sole Proprietorship Products: Q Money Orders ? Gift Certificates Instructions: If you are an officer or the owner of 10% or more of the business you will need to sigp at one of the red numbered signature areas on the Trust Agreement and the Electronic Funds Transfer. If married, pour spouse will need to sign at the corresponding blue numbered spouse signature areas, if not married please notate by affixing N/A is the corresponding blue numbered spouse signature areas. Please attach a voided check for the account MEMO or its designated representative will be drafting. Please provide copies of photo ID's of all individuals who sign these documents. If you have any questions please feel free to contact your sales representative or the Sales and Marketing Department at (800) 922 - 8079. FOR IIVT'ERNAL USE ONLY M~aeca-r~N~rs ExexESS MoNESr oxnER coMreNx, nvc. Money Orders Lead # 20198 MEMO MtHVEY ORDER COMPANY, ING MERCHANT'S ERPRESS USA, INC. MEMO MONEYORDER OOMPANY OF NEW YOR$ ING ~ Tivstee # s~ x~~~: Bryan Hannan O ~ ~ H W a g S w° B^H ~ ~ ~ 10.E 3 ~ g F to f~' ~ ~ ~fl ~ . ~ . 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TRUSTEEACSNOWLEDGES TEIAT BY AUTHORIZING MEMO TO CONFESS jiJDGhffiVT HIR2E[JNDER, TRUSTEE WAIVES THE RIGFIT TO NOTICE IN A PRIOR JUDICIAL PROCEEDING TO DETERMII~TE IT RIGHTSAND i rARTi.rr~uc TRUS?'EE FURTFIERACSNOWLEDGES THAT MEMO MAY OBTAIN A JUDGIt3FN'T AGAIN5I TRUSTEE WITHOUT TTS PRIOR S[VOWI.EDGE OR CONSF.N'T AND WITHOUT TRUSTF_S'S OPPORTUNIlYTO RALSEANY DEFE[VSE, SST OFF, COUNTERCLAibi OR OTHER GLAIM TRUSTEE MAYHAVE TRUSTEE ESPRFSSLY WAIVES SUCH RIGHTSASAN EXPLiCTTAND MATERIAL PART OF THE CONSIDERATION FORMEMO'S TRUST AGREEMENT TO MASEMEMO PRODUCTS AVAri Airy F.TO THETRUSTEE. Il. Liabaltt' y. Trustee, regardless aFT~ustees freedom fromnegligaice a other fzult, stiaIlbe absohatdy liable A To make rarnftance to MEMO of the face amarnt for aIl MEMO products sold, the aPP~e fats, and aIl other makes due MEMO under this Trost Ap~eaxaatS rcgpt~ess ~ the mysterious ornon~rrrysterious disappearrace m loss of airy fiords from Tnasoee's posussim by rrasai of the honest ~ dishonest acr of airy pecsor>, act of God, or oaaawise. B. To remit m MEMO the total amount of erg sums of matey that map be espeatded by arc far MEMO in paying arty MEMO products delivered by MEMO to Tnas[ee that are subscquaidp presentrd for paymcat, whe$aer or not MEMO is 1cgaIly liable to pay the same This arbpar~h shaIl not apply to arry MEMO products ere to which Tnrstce shag have fully perFoumed Tmstee's duties under this Trust Agrearaait C MEMO Liability- Ercept as provided in iris Trost Agreement; MEMO makes rw wamntirs witedier espress, implied oc stalutrtty in coexaarion with this Tnast Agtaxcnent MEMO expressly disclaims all warranties oErxiadaanlshlity atsd fitness for a pa~urlarpurpase MEMO shag not be sespansebie or liable for arty lost proE~ minsagnrtrtial, spooal or pun~ve, aremplary or inddental damages reailting from ttae farlxe of the Product(s). The sole and exclusive liahlitp of MEMO uo TnuGee acrd reaaedy of Tmstre bueuader (mdudmg negligrnce) shag be genmimautup damages not to ezeeed the amount of the item that is the subject of the claim ax ditgnrte, re of die dr+ra~aarmn of each action. 12 INDEMNITY AND PERSONAL GUARANTY. TO INDUCE MEMO TO ENTER INTO THIS TRUST AGREEl4tENT, TRUSTEE AND THE UNDERSIGNED INDIVIDUAL(S) SHALL JOINTLY AND SpvuitAi-iY, IINDEIVIINIFY, DEFEND AND HOLD HARrO-R_~-~ MEMO FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, SUITS, PROCEEDINGS, jIJDGMENTS, ASSF.SSIISENTS, FINES, PENALTIES, COSTS, IINTERFST, AND EXPENSES (INCLUDING, BUT NOT LIDSITED TO, SET'TLEHffiJT COST AND REASONABLE LEGAL AND ACCOUNTING FEES) SUSTAINED BY MEMO RESULTING FROM OR ARISING OUT OF ANY ACT OR OMISSION TO ACT, WHETHER HONEST, DISHONEST, NEGLIGENT OR OTHERWISE BY TRUSTEE OR TRUSTEE'S EMPLOYEES, AGENTS, ASSOCIATES OR REPRESENTATIVES (WHETHER WITTiIIN OR WITHOUT THEIR SCOPE OF PERFORMANCE UNDER THIS TRUST AGREIII~IVZ7. THE PARTIES TO THE TRUST AGREEMENT SHALL BE Rai u.ACED FROM i.iARn-iTy HERE[NDER POR FAII.URE TO PERFORM ANY OF THE OBLIGATIONS HEREIN WHERE SUCH FAILURE TO PERFORM OCCURS BY REASON OF ANY ACT OF GOD, NATIONAL EMERGENCY, MECHANICAL OR ELECTRICAL BREASDOWN, CIVIL. COMMOTION OR THE ORDER, REQUISITION, REQUEST OR RECOMMENDATION OF ANY GOVERNMENTAL PROCLAMATION, REGULATION OR ANY OTHER CAUSE BEYOND i?r'i'FiT,.R PARTY'S REASONABLE CONTROL INCLUDING WEATHER THE UNDERSIGNED INDIVIDUAL DOES PERSONALLY GUARANTEE AND BECOME SURETY FOR TRUSTEE'S FULL PERFORMANCE OF THE TRUST AGREII?~VT, INCLUDING WITH LII4IITATION THE PROMPT AND PUNCTUAL PAYMENT OP ALL AMOUNTS BECOMING DUE FROM TRUSTEE TO MEMO HEREUNDER. THE TRUST AGREEMENT MAY BE MODIFIED BY MEMO WITHOUT NOTICE TO THE UNDERSIGNED AND WITHOUT AFPECITNG THIS PARAGRAPH. MEMO MAY ENFORCE THIS PARAGRAPH AGAINST THE UNDERSIGNED IN THE COURT OF COMMON PLEAS OF CUM$F.Ri.ANTr COUNTY, PENNSYLVANIA, AS WELL AS IN ANY OTF~'R COURT AND STATE HAVING JURISDICTION, WHETHER OR NOT ANY ACTION IS EVER TASEN BY MEMO AGAINST TRUSTEE (ANDIOR GUARANTOR). THE UNDERSIGNED HEREBY WAIVE ALL NOTICES WHATSOEVER WITH RESPECT TO THIS GUARANTY EXCEPT FOR NOTICE OF DEMAND FOR PAYMENT FROM THE UNDERSIGNED. THE UNDERSIGNED HEREBY CONSENT TO THE TAffiNG OF, OR THE FAILURE TO TARE, PROM TIME TO TIME WITHOUT NOTICE TO THE UNDERSIGNED, ANY ACTION OF ANY NATURE WHATSOEVER WITH RESPECT TO THE TRUST AGREEI+riENT, INCLUDING BUT NOT LIIrIITED TO ANY RENEWALS, EXTBNSIONS, MODIFICATIONS, POSTPOINF~MENTS, COMPROMISES, INDULGENCES, WAIVF1tS, SURRENDERS EXCHANGES, Rni.ir.ACgS, AND FAILURE TO PURSUE OR PRESERVE RIGHTS AGAINST ANY PERSON, AND THE UNDERSIGNED SHALL REMAIN FULLY LIABLE HEREON NOTWITHSTANDING ANY OF THE FOREGOING. EXCEPT AS PROVIIlED I~REIN, THE UNDERSIGNED HEREBY WAIVE ALL DEFENSES WHATSOEVER TO THE UNDERSIGNED'S LIABILITY HEREUNDER E%CEPT THE DEFENSES OF (1) PAYD~N'T, AND LACg OF NOTICE AS REQUIItED IN THE TRUST AGREEMENT. UPON DEFAULT HEREUNDER, THE UNDERSIGNED ~rRRUnv AUTHORIZES AND EMPOWERS IRREVOCABLY THE PROTHONOTARY OR ANY CLERS OR ANY ATTORNEY OF ANY COURT OF RECORD OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR AND TO CONFESS JUDGbiEINT AGAINST THE UNDERSIGNED FOR ALL AMOUNTS DUE HEREUNDER, PLUS ALL COSTS OF SUIT, LEGAL IINTEREST TO DATE, AND THIRTY PERCENT (30'/.) ADDED FOR ATTORNEY'S PEES, RFi.uACING ERRORS, WAIVING STAY OF F~CUTION, AND AUTHORIZING THE II4IMEDIATE ISSUE OF A WRIT OF EXECITIZON, ALL IN ACCORDANCE WITH THE PENNSYLVANIA RULES OF CIVIL PROCEDURE. FOR SUCH PURPOSE, THIS TRUST AGREEMENT OR A COPY HEREOF VERIFIED BY AFFIDAVIT BY THE UNDERSIGNED OR ON BEHALF OF THE UNDERSIGNED BY SAID PROTHONOTARY, CLERS OR ATTORNEY, SHALL BE SUFFICIENT WARRANT. THE AUTHORITY AND POWER TO APPEAR POR AND TO CONFESS OR ENTER JUDGMENT AGAINST THE UNDERSIGNED SHALL NOT BE HBIiAiJSTED BY THE INITIAL EXERCISE THEREOF; THE SAMH MAY BE EXERCISED, FROM TIIIrtzB TO TIIME, AS OFTENAS MEMO SHALL DEEM NECESSARY AND DESIRABLE, AND THIS TRUST AGREEMENT SHALL BE A SUFFICIENT WARRANT THEREFORE. THE UNDERSIGNED ACSNOWLEDGE THAT BY AUTHORIZING MEMO TO CONFESS JUDGMENT HEREUNDER, THE UNDERSIGNED HAVE WAIVED THE RIGHT TO NOTICE IN A PRIOR JUDICIAL PROCEEDING TO DETERMINE THEIR RIGHTS AND LIABILITIES. THIS GUARANTY IS GIVEN IN CONNECTION WITH AND EVIDENCES THE OBLIGATION OP THE UNDERSIGNED TO MASS PAYMENT IN CONNECTION WITH A COMMERCIAL TRANSACTION. THIS GUARANTY IS IRREVOCABLE AND SHALL BE BINDING AND OPERATIVE UNTIL SUCH TIME AS MEMO SHALL HAVE BEEN PAID ALL SUMS OWED TO TT UNDER THE TRUST AGREEMENT AND THAT MAY ARISE PURSUANT TO THIS GUARANTY. 13. Security. As further wnside~rion of appoiatmcat b9 MEMO as its agent; and in Dada to protect MEMO's property from conversion, Tnrstoe hereby giants to MEMO a oaatirnm~g p interest in, inrlaxling tttrtrrot littaitt~ ffl ate following, Tntstee's haatk aaamf; inventrxy, acaaatm reoeival~~ asag~enc of lei goodwill and 5snues at erg Trustee kxatims Trtatee agmrs to eaentte erg doaxraaus necessary to ~e oe perfect suds sxuaity intana ; ineisadKig but not limited ~ macded Unifoan Coereneraat Code-Firaaradal smo~aent (UCCl(s)) 5lssgs. Purth_~+*_*a~, MEMO reserves the ~ to requite addmmal mSatml as it deems neceasazy foe otagoitig approval and for the durititrori of the Tnast Agoeemaaat In the event Trustee ~ owtxrsbip in Tr,sox's bus'u>ess in aray transuam simlar to those set foeh in paragaph 4~) hecmt; without prior notice and approval by MEMO as ~ forth than Trustee hereby giants a secrarity interest in the ptooeeris of any suds tranmction vaan7 axis time 9s an approved account is recsmbiished 14. Natices._ Notices required or peanittod under this Trust Agfeemeat shaIl lx deesaed to have been given on personal delivery (rnr3trding oveu»g~rt courier service), and if by mail ai the third day after the marl is deposited in the U.S. Mal, by fast loss oral, postage prepaid return receipt requested and addressed to MEMO at 1029 Mumma Road, P.O. Boa 8863, Camp HaD, PA 17001-8863 or to Trustee at the address shown ota the Appficatian (or such subsequent address as has been provided to MEMO by Trustee). 15. Choice of Law. This TnacAgreernaic shag be canstnaed uerder and in awiah the laws of the Comotaonweahh of Paaosylvacria, drag arty Hiles mating In the choi¢ or caaffid of laws. The parties oaiserx bD vern~e and personal jimsdictioca in CuQabedyad ~Y• Per>risyhmria, ~ in the case of MEMO's euecise of riglus undo Paragraphs 9 and it heimf in any other court of recvad in Permsyhania or elseiviaeit. 16. ~ law Tnastec stmt chide h9 (and ~ its oE6eees, prinopals and a efl abide by) erg faderJl, state and kaol laws and agiilations applicable to Trustre's tausiness and servias prorided They are m include but are not ]iarrihcd ~ (a) State g laws (b) ace Bank Secrecy Ad and iha regulatian~ (c) Federal ash repo~ming cad regulations; (d) Sraoe Curnncq repoating requ>rmnen~ (e) Federal and/or State antiinoney hnndea;ng hws and aIl rubs and reguhaons; (f) erg appliaahhk state money transfer or sale of ~)-aivs and ngulatiom (gl erg fexSrral and rote paivary laws and regulations, and (h) the USA Patriot Ad. 17. Nan-Waiver. The Em'hz<e of MEM0 ao enforce aay pamismn of this Test Agreemrnt ou•its failure [o deelase a defauk ucxiac this Tnast Agte~it stiaIl not cari~itute a waiver or any tarndi of any provision of tins Test Ag~eenent and shaIl not prejudice the right and/or paver of MEMO to proceed as fully as if it had not farted to enforce any provision of tins Trust Agrermerat 1 S. Enfa~ammt hz the event of default under the teens of this Trust Agreement Trustee agrees that MEMO shall, m addition to aIl rights it might have under the hw, have the right of seeking specific perfoanance in the cant of agrity. Furthermore, Tnutee agrees [o consent to the jurisdiction of a court of equity regarding the enforcement of this Trost enforarnent of MEMCt(s) rights in the event of any default by TnLSOees. t and/or the 19. Cost of Enfarmrmt Tnrstee shaIl pay, on demand to MEMO, aIl costs and expenses inchrding reasonable attorney's fees incuaed b9 MED40 in wrmection with dvc arfoamnent of this Trust Agxecr><nt 20. Cmetrucoioo. AD refeYCrces in this Tnust Agcarnmt in the singular sha? be constnred to include the plural where applioHe and the masculine shaD include aIl ot}xr gvrders All covenants, agreanents and obliSptions in this Tnrs[ Agceerunt assumed by Trustee shaIl be, and shaIl be deemed to b~ joint and several covenants. Headings of the paragraphs of this Trust AgFeerrmt are for c~renience only and do not linrit expand, ar otherwise construe the previsions ce contents of this Trust Ag}eernar[. If anypart of tins Trost Agrcerrmt is held to be unenforceable or invalid oc proh~bitad by laav, said pact shaIl be deemed to have been strirkm fran the Trust Ageanent and the Trust Agreecnsrt shaIl be read and interpreted as though the stricken pazt did na eeist and shaIl not affoct the validity ar enforerablity of any othapart of the Tntst Agrarrunt. 21. Aseignmmts and De]egadon MEMO may assign this Trust Agreement at any time without seeking any approval or consent of Trustee. Trustee may not assign this Tnrst Agreement without prior writtrn approval of MEDiO. This Trust Agreement shall be binding on the respective parties as well as their heirs, successors and assigns. 22 E~irc Tenet Ageeemmt This Trust Agreerm>S together wrth any and aIl atbdur,rn~, addardurns, cela0rd searrity doaanarts and sudr Hiles and reguhtions as may be pmrailgated by MEh40 for the isamrce of and sale of MEMO products from time [o tirrr shaIl constiorte the entire agreaxxnt between the parties hereto. These are no other agreements or when or oral, between the parties with respect ro the subject matter of tins Tnist Agceetx>eru 71xre sha? be no modi6eations, ar>errty ce aluerations to clue Tnust Agreement unless agreed to in writing signed by aIl poetics. This Tnrst Agcecr>ent shaIl bind acrd irrtree to the benrFit of theparriey firer rrspeUn~e hairy atrcessors, reptescrtatives and proper assigns MEMO and Merchant undrzctarrd that a canple0ed tdeErx signature is as valid as the original 23. Tieme of the Esemce. Tone is of the essence in this Trost Agrarrrrnt WARNING - BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.. IF YOU DO NOT PAY ON TII1H+r, A COURT JLJDGi?ffiVT MAY BE TASEt~T AGAINST YOU WITHOUT' YOUR PRIOR SNOWLEDGE, AND THE POWER OF A COURT CAN BE USED TO COLLECT FROM YOU Rur.,?RnLESS OF ANY CLAIMS YOU MAY HAVE AGAINST TTiE CREDITOR, WEIETf~R FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH TRUST AGREEl1~.N'T, OR ANY OTHER CAUSE. c~rpor~te~smre Narme A. Y. Warren Liduor Inc 1. Signature (f3usincss) 4 Ahrtm Yousif SIGN 2. Signature (Individually) v ~ Signature (Spouse) L( Almtm Yotttsif SIGN HERE Altram Yoatait's SPOUSE IGN HERE 3. Signature (Individually) Signature (Spouse) 4. Si~mature (Indi~tidual))) Si~mature (Spouse) Place enter the date Date: ` d yo..ee the eontr,cta MERCHANTS EXPRESS MONEY ORDER COMPANY, INC. MEMO MONEY ORDER COMPANY, INC. MER EXPRESS USA, INC. MEM ONEY ORDER COMPANY OF YORK, INC. By ~ Vv Tide Date ~ ~ d 'kIf not married, please indicate by a~uaing "N/A" in the blue "Signature (Spouse)" area. 2/5/2009 AGREEMENT This agreement is made and entered into as of the day of , 2009, between Merchants Express USA, Inc. (I~1E14t0) and A. Y. Warren Liquor Inc d/b/a Yellow Apple Food Center (Trustee) and Aletam Yousif (Guarantor). Concurrently with the execution of this Agreement, ILsEMO and Trustee/Guarantor have entered into a certain Money Order Trust .Agreement. As a material inducement for MEMO to eater into and execute the Trust Agreement, the Trustee/Guarantor has agreed to enter this Agreement to grant MEMO further rights and remedies against Trustee under the Trust Agreement and, if applicable, any default by Guarantor under the personal Guazanry. Therefore, in consideration of the foregoing, and other good and valuable consideration, the receipt and adequary of which aze hereby acknowledged, MEMO and Trustee/Guarantor hereby consent and agree s follows: 1. Confession of )udgment Trustee/Guarantor hereby iaevocably authorizes and empowers any attorney ar the Prothonotary ar Ckrk of any court of record, ripon ar afrer the occuurnce of arty event descubed in paragraph 7, to appear for and to confess or enter judgment against Trustee for the face amount of all money orders sold pursuant to this m>; the applicable Money Order Fees, accrued intnacst thereon, interest expense not to exceed eighteen percent (18%), and for any other sums due MEAfO under tins rlgnocment, together with expenses and cost of suit and reasonable attorney's fees and said fees not to exceed thirty percent (30%) of said amount and sums, far collection as provided hecoin incirxling aIl legal fees incurred in any Bankruptcy of Trustee. For such propose, this Agreement or a copy hereof verified by affidavit by Trustee ar osr behalf of Trustee by said attorney, Prothonotary ar Cled~ shaIl be suit wauaat The ranedies of MEI4i0 as provided herein and the waa~anrs obtained hetdn shaIl be enforced in accordance with tine Darns of this Agreemeit and may be pursued singly, successively, ar oogether at the sole of 14ffiMO and as often as occasion therefore shaIl occur. The fatlrire to exercyse nay such right or reuredy shall m no event be coiistrried as a waiver or release thecoof. The arrthority and power to appear for and conffess ar enter judgment against Trustee shaIl not be exhausted by the initial exercise thereof, and the same may be exerdsed, firorn time to time, as often as MEMO shall deem necessary and desirable, and this Agreement ar a copy hereof shaIl be a suffidart Warrant therefore. One or more judgments may be confessed or entered in the same ar different cormties for aIl or part of the sr~s descubed in this paragraph. In the event anq judgment entered against Trustee herermder is stricken ar opened ripon application by ar oa Trustee's behalf for arty reason whatsoever, then any attorney ar the Prothonotary or Clerk of nay court of record is hereby authorized and empowered to again appear for and confess ar enter jrydgxnmt against Tnistee; subject, however, to the limitation drat such subsequent entry ar confession of judg~neat may only be done to cure any errors in prior proceedings, and only and to the extent that such errors are subject to cure in the late proceedings. 2 The rights sad comedies granted to 1?iEMO hereunder shaIl be in addition to any rights ar remedies MEMO may have render the Trust Agreement; ar any other inslniment erecuted by Trustee sad/ar guarantor pursuant to the Trust Agreement or in connection with the Trust Agreement, and aIl arch remedies may be pursued concurnndy, s<rcessively ar separately. In the event nay provision contained in this Agreement, the Trust Agcoement or in any other iastnnnent executed by Trustee/ Guarantor shaIl fore any reason whatsoever be held to be inapplicable, invalid, illegal or rnienforceable in nay respect, such inapplicaba7ity, invalidity, illegahry ar rmeaforceability shall not affect any respect; srich inapplinbi7ity, invalidity, illegality ar rmenfatreabality shaIl not affect any other provision in such documents, but such documents shaIl be construed as if such inapplii~biih'ty, invalid, lkgal or rmenforceable provision had never been contained thmein. IN DUITNESS WHEREOF, the parties have caused this Agreement to be executod by their duly audrorized rrpcoseiitatives as of the day and year first above written. Trustee: A. Y. Wamn liquor Inc By. ~ Its: Aluxm Yoasif SIGN Guarantor. {Indtvndual) (Spouse)`' Aknm Yousif SIGN HERE Alvaro Yoatif'a SPOUSES N HERE (Spouse) (Spouse) red by Merchants Express USA, Inc. BY~ Its: ~ rZ~ f 7' ~O rZ ~ I n! ~ °TO~ Michigan 2/16/2009 MERCHANTS EXPRESS USA, Inc. COURT OF COMMON PLEAS, CUMBERLAND COUNTY PLAINTIFF v. Akrim Yousif , 2012 Individually, jointly and severally, DEFENDANT and No. 7 ~ A.Y. Warren Liquor Inc., d/b/a Yellow Apple Food Center Corporation DEFENDANT AFFIDAVIT OF ADDRESSES COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF CUMBERLAND The undersigned being duly sworn according to law, deposes and states that he is an employee of Merchants Express Money Order Company, Inc., with the authority to make this Affidavit on behalf of the Plaintiff, Merchants Express USA, Inc., a wholly owned subsidiary of Merchants Express Money Order Company, Inc., a Pennsylvania corporation. The undersigned also states that the address of the Plaintiff is: 1029 Mumma Road, Wormleysburg, Pennsylvania, 17043 and that the addresses of the Defendants are as follows: A.Y. Warren Liquor Inc. Akram Yousik 3888 West Warren Avenue 5626 Renshaw Drive Detroit, MI 48208 Troy, MI 48085 David Bush SWORN to and subscribed before me this 29 , day of , 2012. ~~r~ N blic TM s~ w ~ ca p r ~ na+a MERCHANTS EXPRESS USA, Inc. COURT OF COMMON PLEAS, CUMBERLAND COUNTY PLAINTIFF v. Akrim Yousif , 2012 Individually, jointly and severally, DEFENDANT . and No. j yl. ~ : r' A.Y. Warren Liquor Inc., d/b/a Yellow Apple Food Center Corporation DEFENDANT AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF CUMBERLAND The undersigned being duly sworn according to law, deposes and states that he is an employee of Merchants Express Money Order Company, Inc., with the authority to make this Affidavit on behalf of the Plaintiff, Merchants Express USA, Inc., a wholly owned subsidiary of Merchants Express Money Order Company, Inc., a Pennsylvania corporation. The undersigned also states that to the best of my knowledge, informa ion, and belief, the Defe is are not in the Military or Naval Service of the United States or hies, or otherwise the provisions of the Soldiers' and Sailors' Civil Relief Act of Con ess 940 as e ed. David Bush SWORN to and subscribed before m~e~,,t~h~is~. ~ 29 , day of 2012. n ~ . No ub 'c AOMMONYIIEM.TN Of VANIA Notarw SeM yu ~ councr MERCHANTS EXPRESS USA, Inc. COURT OF COMMON PLEAS, CUMBERLAND COUNTY PLAINTIFF v. Akrim Yousif , 2012 Individually, jointly and severally, DEFENDANT and No._~! ~y ~ ~ , ~ A.Y. Warren Liquor Inc., d/b/a Yellow Apple Food Center Corporation DEFENDANT NOTICE NOTICE IS GIVEN THAT A JUDGMENT IN THE ABOVE-CAPTIONED MATTER HAS BEEN ENTERED AGAINST YOU. PRO ONOTARY If you have any questions concerning the above, please contact: Kevin M. Lutkins, Esq. Merchants Express Money Order Company 1029 Mumma Road P.O. Box 8863 Camp Hill, PA 17001-8863 (800) 543-8207