HomeMy WebLinkAbout04-5306
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Green Tree Consumer Discount
Company, flk/a Conseco Finance
Consumer Discount Company,
CIVIL DIVISION
No, C4. - 5.301:.
Cl(')LL~~
Plaintiff,
Complaint in Civil Action - Replevin
v,
Debra J. Benner and Adina Benner,
Filed on behalf of:
Green Tree Consumer Discount
Company, flk/a Conseco Finance
Consumer Discount Company
Defendants,
Counsel of Record for this Party:
Erin P. Dyer, Esquire
PA ID Number: 52748
5743 Centre Avenue
Pittsburgh, PA 15206
(412) 361-1000
IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS
OFFICE, BE ADVISED THAT:
PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. S
1692 et seq, (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR
ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY
(30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN
AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF;
OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF
REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL
FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE
ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE.
THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY
(30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO
COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER
TO THIS COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS,
YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST
WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF
THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF
YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE
ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON
YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR
EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL
WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN
ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS
SUIT.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Green Tree Consumer Discount
Company, f/k/a Conseco Finance
Consumer Discount Company,
Plaintiff,
v.
Debra J. Benner and Adina Benner,
Defendants.
NOTICE
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CIVIL DIVISION
No. t.i'f- ,530{, ~ <j~
Complaint in Replevin
THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY
INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY
RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS
NOTICE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A
DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY.
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 attorney and filing 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 judgment 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 property 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 OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
(717) 249-3166
(800) 990-9108
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Green Tree Consumer Discount
Company, flk/a Conseco Finance
Consumer Discount Company,
Plaintiff,
v.
Debra J, Benner and Adina Benner,
Defendants.
COMPLAINT
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CIVIL DIVISION
No. 04 - S'a6{p
C'o~L t~
THIS FIRM IS A DEBT COLLECTOR
ATTEMPTING TO COLLECT A DEBT AND
ANY INFORMATION OBTAINED WILL BE
USED FOR THAT PURPOSE. IFYOU HAVE
PREVIOUSLY RECEIVED A DISCHARGE IN
BANKRUPTCY AND THIS DEBT WAS NOT
REAFFIRMED, THIS NOTICE IS NOT AND
SHOULD NOT BE CONSTRUED TO BE AN
ATTEMPT TO COLLECT A DEBT, BUT
ONLY ENFORCEMENT OF A LIEN AGAINST
PROPERTY.
COUNT I - REPLEVIN
AND NOW, comes Green Tree Consumer Discount Company, flk/a Conseco
Finance Consumer Discount Company, by and through its attorney Erin P. Dyer, Esquire
and avers the following in support of its Complaint in Replevin:
1. Green Tree Consumer Discount Company, flk/a Conseco Finance Consumer
Discount Company, hereinafter referred to as "Plaintiff" or "Green Tree," is a corporation
duly authorized to conduct business in the Commonwealth of Pennsylvania and has its
principal place of business located at Stonewood Commons III, 105 Bradford Road,
Suite 200, Wexford, Pennsylvania 15090.
2. Debra J. Benner, hereinafter referred to as "Purchaser," is an adult individual
whose last known address is 298 Walnut Lane, Carlisle, Pennsylvania 17013.
3. Adina Benner, hereinafter referred to as "Occupant", is an adult individual
whose last know address is 298 Walnut Lane, Carlisle, Pennsylvania 17013.
4. Purchaser and Occupant shall be referred to jointly as "Defendants" where
applicable.
5. On or about April 10, 2000, Purchaser bought a 1985 Redman Flamingo
Manufactured Home, Serial Number 12215959, (the "Mobile Home"), from
Conseco Bank, Inc., (the "Seller"), and entered into a written Manufactured Home
Promissory Note, Security Agreement and Disclosure Statement,
(the "Security Agreement") for the payment of a portion of the purchase price thereof. A
true and correct copy of the Security Agreement is attached hereto as Exhibit "A."
6. Seller assigned its interest in the Security Agreement to Conseco Finance
Consumer Discount Company, ("Conseco") Plaintiff herein. Conseco perfected its security
interest in said Mobile Home by having an encumbrance placed on the title thereto. A true
and correct copy of the Certificate of Title is attached hereto as Exhibit "B."
7. On June 9, 2003, Conseco Finance Consumer Discount Company fried
Articles of Amendment - Change in Corporate Name with the Pennsylvania Department
of State, Corporation Bureau. As of June 13, 2003, the new name of the corporation is
Green Tree Consumer Discount Company.
8. Plaintiff avers that the approximate retail value of said Mobile Home is
$20,000.00 and that the said Mobile Home is in the Defendants' possession and believed
to be at Defendants' address as stated above.
9. Purchaser defaulted under the terms of the Security Agreement by failing to
make payments when due. As of September 10, 2004, the Purchaser's payments of
interest and principal were in arrears in the amount of $1,263.45. Pursuant to the
Acceleration Clause in the Security Agreement the amount outstanding as of
September 10, 2004, is $21,457.13.
10. Plaintiff provided Purchaser with thirty (30) days notice of intent to repossess
the Mobile Home. A true and correct copy of the notice of intent to repossess the Mobile
Home is attached hereto as Exhibit "C."
11. Purchaser failed to cure the default or return the Mobile Home upon Plaintiff's
demand.
12. Plaintiff avers that under the terms of the Security Agreement and
Pennsylvania law it is now entitled to immediate possession of said Mobile Home.
13. The Security Agreement provides that in the event of default, Purchaser will
pay:
a. the reasonable attorney's fees of seller or of seller's assignee,
provided that prior to commencement of legal action such fee shall not
exceed $50.00;
b. court costs and disbursements; and
c. costs incurred by seller or of seller's assignee to foreclose on the
Mobile Home including the costs of storing, reconditioning and reselling the
Mobile Home.
14. In order to bring this action Green Tree Consumer Discount Company, flk/a
Conseco Finance Consumer Discount Company was required to retain an attorney and did
so retain Attorney Erin P. Dyer.
WHEREFORE, Plaintiff, Green Tree Consumer Discount Company, flk/a Conseco
Finance Consumer Discount Company, requests:
Judgment against all Defendants to recover possession of the 1985 Redman
Flamingo Manufactured Home, Serial Number 12215959.
COUNT II - DAMAGES AGAINST PURCHASER ONLY
By way of separate and alternative pleading, Plaintiff, Green Tree Consumer
Discount Company, f/k/a Conseco Finance Consumer Discount Company, alleges the
following:
15. Paragraphs 1 through 14 of this Complaint are incorporated herein by
reference as though fully set forth.
16. This Count is brought in the alternative to the relief sought in Count I.
WHEREFORE, Plaintiff, Green Tree Consumer Discount Company, flk/a Conseco
Finance Consumer Discount Company, requests:
a) judgment against Purchaser in the amount of $21 ,457.13 with interest and late
charges plus detention damages, special damages consisting of inter alia, detaching and
transporting the Mobile Home, shipping fees, any cost for insurance placed on the Mobile
Home by Plaintiff, late charges, and all allowable damages per the Security Agreement,
any further costs for repossession and sale, and attorney's fees and costs of litigation in
order to obtain possession of the Mobile Home; and
b) In the event Plaintiff repossesses said Mobile Home and resells or otherwise
disposes of said Mobile Home, a deficiency judgment against Purchaser in an amount to
be determined by the Court upon petition of Plaintiff, which amount shall be equal to the
difference between the amount owed pursuant to the said Security Agreement plus the
damages set forth in paragraph (a) above and the amount recovered by Plaintiff from the
resale or other disposition of the said Mobile Home, less expenses.
--? . 'r ...
Erin P. Dyer, t:squiTl:!
PA ID Number: 52748
Attorney for Plaintiff
5743 Centre Avenue
Pittsburgh, PA 15206
(412) 361-1000
~
L:\Green Tree\Benner, Debra\CM Replevin.wpd
VERIFICATION
Carmine M. Amelio, Regional Manager and duly authorized representative of
Green Tree Consumer Discount Company, deposes and says subject to the
penalties of 18 Pa. C.S. section 4904 relating to unsworn falsification to authorities
that the facts set forth in the foregoing are true and correct to the best of his
knowledge, information and belief.
GREEN TREE CONSUMER DISCOUNT COMPANY
;fE:~~:'~;OOOI Maoo9"
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BE:NNER 4893928 /~-1.../f)?'7
OT"O,00.202 {31'" MH,PNSA . . OHIO, NORTH CAROLINA, PENNSY~' NIA C:TLil/lIlCU
I MANUFACTURED HO...", PROMISSORY NOTE, SECURITY a. r.1,j ,!
AGREEMENT AND DISCLOSURE STATEMENT (CON". - FHA - VA) (SI) Date" n ;'()/ 9V ;
,.
MAKER: BENNER. DEBRA J.. 298 WALNUT LN. CARLISLE. PA 17013
MAKER:
CREDITOR: Conseco Bank. Inc. 2825 B. C01:t.onwood Parkway. SUi'tB 230. Salt Lake City. UT 84121
FEDERAL TRUTH-IN-LENDING ACT DISCLOSURES
FINANCE CHARGE Amount Financed
{The dollar amount the credit (The amount of credit provided
will cost me.) to me or on my behalf.}
ANNUAL
PERCENTAGE RATE
(The cost of my credit as a
yearly rate,)
14'95 %
My Payment Schedule will be:
Number of Payments
180
$
29780.38
Total of Payments
(The amount I will have paid
after I have made all payments
as scheduled.)
$
$
49460.4.0
19680.02
Amount of Payments
274.78
When Payments Are Que
Monthly beginning .30-"5 days from
'the date of the disbur8emen~.
,
SECURITY: I am giving a security interest in: I
--!- The manufactured home or nlodular home being purchased. N/ A The manufactured home or modular home being refinanced.
NI A Real property located at Nt A' !
LATE CHARGE: If a payment is more than _~ days late, I will be charged 10% of tbe scheduled installmen'!= amounl:
PREPAYMENT: If I pay off early,l ~ may ~ will not'be charged a prepayment penalty. .
ASSUMPTION: Someone buying my home may. subject to underwriting conditions, be allowed to assume the remainder 01 my
obligation on the original terms. ' ,
See the Contract document below for any additional information about nonpayment. default, any required repayment 'in full before
the scheduled date. and prepayment refunds and penalties. '
ITEMIZATION OF THE AMOUNT FINANCED
1. Amount Given To Me Directly.................. $ 1211.20
Name of Previous Creditor .
2. Amounts Paid To Others On My Behaif:
a. Paid to Public Officials ......................... +. $
b. Paid to Insurance Companies ................ + $
c. Paid to Appraiser ................................. + $
d. Paid to CONSECO FOR POINTS + $
e. Paid to APPLICATION FEE ,+ $
f. Paid to LOAN WORKS + $
g. Paid to + $
h. Paid to + $
L Paid to + $
j. Paid to + $
k. Paid to + $
3. Principal Balance 11 + 2a.-k.1 .................. $
4. Prepaid Finance Charges .........................
TOTAL PREPAID FIN.o\NCE CHARGES
5. Amount Financed (3 - 4) .........................
, $
- $
.$
$
.00
.00
.00,
1384.60
100.00
18408.82
.00
.00
.00
.00
.00
21164.62
1484.60
.00
.00
19680.02
PHYSICAL DAMAGE INSURANCE
Physical Damage Insurance is required but I may obtain it from
anyone I want that Is acceptable to you. If I get the insurance
checked below from you or through you, I ~iJl pay you
'$ .00 for insurance protection for a term of 00 years.
N/A Comprehensive ($ . . .00 deductible)'
Nt A flood
N' A liability
Nt A Other Nt A
~ Vendor's Single Interest
,
OPTIONAL CREDIT LIFE AND DISABILITY INSURANCE
Credit Life and Disability Insurance are not required to obtain
credit and will not be provided unless I sign and agree to pay the
additional cost. '
The term of this insurance is 00 years.
N/ A Single Credit Life Insurance $ .00
~ Joint Credit life Insurance $ .00
. N/ A Single Credit Disability Insurance $ .00
Total $ .00
X
Signature of Makerls) Insured
Date
I CONTRACT AND SECURITY AGREEMENT
1. DEfiNITIONS: "I", "me", "my" means the Maker(sJ. "You", "your" means the Creditor. "Manufactured Home" means the
manufactured home or modular home; the real property described above, jf applicable; and any other property described on page 2.
"Agreement" or .. Contract" means this Promissory Note, Security Agreement and Disclosure Statement; and a mortgage or deed of
trust, if applicable. I
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EXHIBIT "A"
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NEWDR
USED
U
__ ! Manufactured Home
I MODEL I
FLAM.INGO
>6 Washer
-t--
Air Conditioner
. BENNER
SERIAL NUMc_n
12215959
,2-0ryer
. 4B93928
SIZE
14 X 70
~ Wheels/Axles
YEAR AND MAKE
REDMAN HOMES
Stove ,2-Refrigerator
1985
X
X
Other I
(Describel SKIRTING. IJINOZONE
2. LOCATION: The Manufactured Home is located at [the following address: 296 WALNUT LN . CARLISLE . PA 17013
. The land on which the Manufactured Home is located is owned by: COUNTRY MANOR IolEST
, I
3. PROMISE TO PAY: To repay my loan, I promise t~ pay you 21164.62 Ithe "Principal Balance'" as listed under
the "Itemization of Amount Financed" on page'. plus interest from 'the date of the disbursemen't
I at the rate of
I
I
I
per annum until paid in full by making the "Total of P~yment5" in accordance with the "Payment Schedule" on page 1. The Total Sale
Price is . 49460.40 I and my down payment is .00 .
4. LATE CHARGE: If a payment is made mom than I
scheduled inst:allment: amount. I
I
5. NSF FEE: If any instrument which I submit to you is returned unpaid for any reason, I will pay you a fee of $
I
6. SIMPLE INTEREST CONTRACT: This is a simble interest contract. Interest will accrue upon the unpaid principal balance
outstanding from time to time. The Finance Charge, Total of Payments and Payment Schedule were computed based on the
assumption that payment will be made on the date's scheduled for payment. Early payments will reduce my final payment. Late
payments will increase my final payment. My final payment will be equal to all unpaid sums due under this Agreement. My promise
requires me to pay the final payment on the date dJe even if the amount of the final payment differs from the amount of the flnal
payment disclosed. I
7. SECURITY INTEREST: I give you a security interest under the applicable certificate of title law or Uniform Commercial Code in the
Manufactured Home and any property added or attac~ed to it, to secure my obligation under this Agreement. I also grant you a security
interest in any interest I may have in premium refunds or proceeds under any insurance covering the Manufactured Home. I agree to
execute any application for certificate of title or ownership, financing statement or other document necessary to perfect your security
interest in the Manufactured Home. To the extent. 'if any. that any Agreement (whether- or not accompanied by anyone or more
original) constitutes chattel paper (as such term is defined in the Uniform Commercial Code in effect in the applicable jurisdiction) no
security interest in any Agreement may be created in any document(s) other than the Original.
8. PREPAYMENT: I may prepay this noti in part or in full at anytime. I will not pay a penalty upon
prepayment unless otherwise stated in the ~ext sentence. If I prepay in full within 60 months of the
date of this note. I will pay you a penalty of six months interest on the amount in excess of
20'11 of the original prinCipal amount I
I
I
Partial prepayments will not excuse or reduce any later scheduled payment until this note is paid in full.
9. NO WARRANTIES: I agree that there are no wbrranties of any type covering the Manufactured Home. If I am purchasing the
Manufactu,ed Home, then it is being purchased AsllS and WITH ALL FAULTS and THE ENTIRE RISK AS TO THE QUALITY AND
PERFORMANCE OF THE MANUFACTURED HOME IS WITH ME. I agree that any implied watranty of merchantability and any implied
warranty of fitness for a particular purpose are spedifically excluded and do not cover the Manufactured Home. This No Warranties
provision does not apply to the extent that any law p~ohibits it and it does not cover any separate written warranties.
10. PROTECTION OF THE MANUFACTURED HOME:II will: {al keep the Manufactured Home in good condition and not commit waste;
(b) pay all taxes, charges and lot rent due for the M~nufactured Home and the real estate it is located on; (c) not move. use illegally,
set!, lease or otherwise transfer the Manufactured Home; (d) not attach the Manufactured Home to any real estate and the
Manufactured Home will always be treated as pers6nal property unless you consent in writing and state law permits such contrary
treatment; and (e) not let anybooy else have any intetest in the Manufactured Home.
I .
11. PERSONAL PROPERTY: I agree that regardless of how my Manufactured Home is attached to the real propertY and regardless of
how your security interest in my Manufactured Home is perfected and regardless of whether an affidavit of affixture (or other similar
instrument identifying the property as a fixturel has been recorded, my Manufactured Home is and shall remain personal property and is
13.50%
10
days after it is due, I agree to pay a late charge of 10% of the
25.00
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not and shall not become a fixtur .art of the real property unless you cc . in writing ar:'d state law permits a contrary
classification. I agree to pay any anI.. ~,I personal property taxes assessed against n.'( Manufactured Home and agree tha~ failure to pay
such taxes shall constitute a default under para'lraph 16 on pagel3. i
12. INSURANCE; I will keep the Manufactured Home insured against such risks and in such amounts as you may reaSbnablY require
. with an insurance company satisfactory to you. I will arrange for you to be named as loss payee on the policy. I agree [0 provide you
written evidence of insurance as requested by you from time to time. If you finance the purchase of any such insurance for me, I will
repay you for the cost of that insurance, plus interest liP to the contract rate of interest. I authorize yOu to furnish account data to a
licensed insurance agent of your choice so suet, agent may solicit the purchase of credit, property, warrantY or other insurance from
me. I agree that the insurance company may make any payments due under the policy directly to you. and I direct;the insurance
company to do so. You may do whatever you think is necessary to be sure that any proceeds of the insurance will be \Jse:d to repair the
Manufactured Home or pay -off this Agreement. I give you a power of attorney (which I cannot cancel) so that you may do whatever
you need to in order to collect the insurance proceeds. If I fail to obtain, maintain or pay for the required insurance, or if Cfail to arrange
for you to be named as loss payee, you may treat that as a default of my obligations under this Agreement, and you may (but are not
required to) purchase such insurance. If yau purchase such insurance, I will immediately repay you for any amounts! you spend in
purchasing the insurance, plus interest up to the contract rate of: interest or, at your option, pay you over time as 8 workout of the
Obligation. If I owe you for any insurance (or for late charges, attorney fees or collection costs). I understand that I ow~ an additional
sum for these debts beyond my monthly principal and interest payment. My monthly payment will therefore be greater th.an that stated
on page 1 until such additional debts are paid in full. .
13. CHARGES; LIENS: I shall pay all taxes, assessments and other charges, fines and impositions attributable to the lManufactured
Home which may attain a priority under this Ag,eement. I shall promptly furnish to you all notices of amounts due under this paragraph
and, if I make payments on any such amounts directly, I shall promptly furnish to you receipts evidencing such payments. I shall
promptly discharge any lien which has priority Clver this Agreement provided that I shall not be required to discharge any such Hen so
long as I shall agree in writing to the payment of the obligation secured by such lien in a manner acceptable to you or shall in good faith
contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or
forfeiture of the Manufactured Home or any part thereof.
14. INSPECTION: You may make, or cause to be made, reasonable eotdes upon and inspections of the Manufactured Home, provided
that you shall give me notice prior to any such inspection specifying reasonable cause therefor related to your ihterest in the
Manufactured Home.
15. FORBEARANCE BY CREDITOR NOT A WAIVER: Any forbearance by you in exercising any right or remedy hereunder, or otherwise
affol'ded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy. The procurement of insurance
or the payment of taxes or other liens or charges by you shall not be a waiver of your right to accelerate the maturity of this
indebtedness secured by this contract and declare a default herein.
I
16. DEFAULT: I will be in default if: (i) I do not make a payment on time; or Iii) I do not keep any of my ather promises under this
Agreement; or (iii) I file a case, or someone else files a case against me, under the United States Bankruptcy Code; or (iv) you feel in
good faith that the Manufactured Home is in danger or that I will not be able to continue my payments. The default described under (iv)
does not apply if this Agreement is guaranteed by the Veteran's Administration. You will give me notice of the default except when I
voluntarily surrender or abandon the Manufactured Home. I will have the right to cure the default during the notice period. If I do not
cure the default. you may do either or both of the following: (a) Acceleration: You can require me to immediately pay you the entire
remaining balance of this Agreement; ar'ld/or (b) Repossession: You can repossess the Manufactured Home. Once you get:possession of
the Manufactured Home you may sell it. If the amount from the sale, after expenses, is less than what I owe you, I Will pay you the
difference. If there is any property left in the Manufactured Home when you repossess, YOLl may dispose of it as provided by law. If I
default. you can do whatever is necessary to correct my default. :If you spend money to correct my default, I will pay you back
immediately with interest at the contract rate of interest. I
17. NOTICE: Except for any notice required under applicable law to be given in another manner, (a) any notice to me provided for in
this Agreement shall be given in writi"ng by mailing such notice by certified mail, addressed to me at the Manufactured Home address
or at such other address as I may designate by notice to you in writing, and (b) any notice to you shall be given in writing by certified
mail, return receipt requested, to your address stated herein or to suc,h other address as you may designate by notice to rre in writing.
18. TRANSFER OF PROPERTY; ASSUMPTION: If all or any part ,of the Manufactured Home or interest therein is sold or otherwise
transferred by me without your prior written consent. excluding: the creation of a purchase money securitY interest :for household
appliances, you may, at your option, declare all the sums secured by this Agreement to be immediately due and payable. If you
exercise such option to accelerate, you shall mail to me thirty (30) days prior notice of acceteration in accordance with the notice
provision herein. If I fail to pay such sums prior to the expiration of- such period, you may, without further notice or demand on me,
invoke any remedies permitted under law. (. :
. ,
19. ATTORNEY'S FEES: If you hire an attorney who is not a salarie~ employee to collect what I owe under this Agreerpent or to get
possession of the Manufactured Home or to enforce my agreements herein, I will pay your statutory attorney's fees plus court costs
and out.of.pocket expenses, if allowed by law.
20. MISCELLANEOUS PROVISIONS: This written Agreement is the only agreement that covers my lOan. This AgreemeQt can only be
modified or amended or provisions in it waived (given up) by a written modification to this Agreement signed by you. Y.,ou can decide
not to use or enforce any of your rights under this Agreement without losing them. For example, you can extend the ti~e for making
,
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some payments without extending others. If art of this Agreement cannot be enforce ause 01 a law whiCh prohibit~ it, all
other parts can stili be enforced. I agree to co....~~rate with you regarding any requests after.. .sing to correct errors made concerning
this Agreement or the transaction and to provide any and all additional documentation deemed necessary by you to complete this
trnnsaction. I _
21. ARBITRATION: All disputes. claimSI or controversies arising from or relating to this Agreement or the relationships which result
from this Agreement, or the validity of this arbitration! clause or the entire Agreement. shall be resolved by binding arbitration by one
arbitrator selected by you with my consent. This ~rbitration agreement is made pursuant to a transaction inVOlving interstate
commerce, and shall be governed by the Federal Arbitration Act. Title 9 of the United States Code. Judgment upon the award rendered
may be entered in any court having jurisdiction. The parties agree and understand that they choose arbitration instead of litigation to
resolve disputes. The parties understand that they have a right or opportunity to litigate disputes in court, but that they prefer to
resolve their disputes through arbitration, except as provided herein, THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY
RIGHT THEY HAVE TO A JURY TRIAL, EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT
ACTION BY YOU {AS PROVIDED HEREINt. The parties agree and understand that all disputes arising under case law. statutory law,
and all other laws including, but not limited to, aU contract, tort, and property disputes, will be subject to binding arbitration in accord
with this agreement. I agree that I shall not have thel right to participate as a representative or a member of any class of claimants
pertaining to any claim arising from or relating to this Agreement. The parties agree and understand that the arbitrator shall have all
powers provided by law and the Agreement. These powers shall include 3111e9al and equitable remedies, including, but not limited to,
money damages, declaratory relief, and injunctive relief. Notwithstanding anything hereunto the contrary. we retain an option to use
judicial or non~iudicial r~lief to enforce a security agre~ment relating to the collateral secured in a transaction underlying this arbitration
agreement. to enforce the monetary obligation or to foreclose on the collateral. Such judicial relief would take the form of a lawsuit.
The institution and maintenance of an action for judiCi~1 relief in a court to foreclose upon any collateral, to obtain a monetary judgment
or to enforce the security agreement, shall not constitute a waiver of the right of any party to compel arbitration regarding any other
dispute or remedy subject to arbitration in this Agreement. including the filing of a counterclaim in a suit brought by you pursuant to
this provision. I
22. APPLICABLE LAW: The interest to be charged on this loan is governed by the laws of the state of Cuh and applicable
federal law I . All other terms of this transaction are governed by the law of the st.ate of
Pennsylvani.a
23. ADDITIONAL TERMS: N( A
NOTICE TO MAKERISI: t, DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS
ANY BLANK SPACES. 2. YOU ARE ENTITLED TO A COpy OF THIS AGREEMENT.
MAKER ACKNOWLEDGES RECEIPT OF A COMPLETED COpy OF THIS AGREEMENT.
I
CAUTION -IT IS IMPORTANT THAT YOU THOROUGHLY READ THE
ENTIRE AGREEMENT BEFORE YOU SIGN IT.
Mak~tJ*J~AU. fli~ Maker~gnatur.
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CONSECO FINANCE
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AL, AZ, AR, CT, DE, DC, FL, GA, IA (LH PMM), ID, IL, IN, KY, LA, MA (LH), MD, ME (LH First Liens),
MI, MN, MO (LH First Liens), MS, MT, NE, NY, NH, NJ (HO), NM, NY, NC, ND, OH, OK, OR, PA (HO),
RI, SD, TN, TX (HO), UT, VT, VA, W A, WI (LH First Liens), WV (LH), WY
NOTICE OF DEFAULT
AND
RIGHT TO CURE DEFAULT
Date ofNotice:9-10-04
. CERTIFIED MAIL RECEll'T NO:
DEBRA BENNER
298 WALNUT LANE
CARLISLE, PA 17013
GREEN TREE CONSUMER DISCOUNT CO.
105 BRADFORD ROAD SmTE 200
WEXFORD, PA 16635
1-800-245-1340
Account No : 18368177
CREDITOR: GREEN TREE CONSUMER DISCOUNT CO.
Credit Transaction: MANUFACTURED HOME ACCOUNT
You are now in default on tliis credit transaction. You have the right to correct this default within 30 days from the
postmarked date of this Notice.
If you correct the default, you may continue with the contract as thought you did not default.
Your default consists of:3 payments (plus NA in fees and charges) totaling $946.54.
~
Cure of default: Within 30 days from the postmarked date of this Notice, you may cure your default by paying
$946.54 which consists of $946.54 for past due payments and NA for late charges, or by doing the following: NA.
Creditors rights: If you do not correct your default in the time allowed, the creditor may exercise its rights against you under
the law by taking legal action to repossess or foreclose on its collateral.
If you fail to cure the total amount of your default within the cure period described above, then as of 30 days from the
postmark of this Notice, the maturity of this contract is automatically accelerated and full payment of the contract in the
amount $19454.00 shall be due and payable without any further notice from the creditor. Additional expenses,interest
and charges accured after the date of this notice shall also be due and payablt.
If you have questions, write Gree Tree Consumer Dis. Co. at the above address or call the number provided.
If this default was caused by your failure to make a payment of payments, and you want to pay by mail, send a cashier's check
or money order. Do not send cash. Other payment arrangements may be made by contacting Gree Tree Consumer Dis.Co.
EXHIBIT "e"
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Green Tree Consumer Discount
Company, f/k/a Conseco Finance
Consumer Discount Company,
CIVIL DIVISION
Plaintiff,
)
)
)
)
)
)
)
)
)
No. 04-5306 Civil Term
v.
Debra J. Benner and Adina Benner,
Defendants.
PRAECIPE TO DISCONTINUE PURSUANT TO
PENNSYLVANIA R.C.P. RULE :229
To the Prothonotary:
Please discontinue the above-captioned action at thl3 request of Plaintiff, pursuant
to Pa.R.C.P. Rule 229. The discontinuance shall be without prejudice, and shall not be
deemed to bar the bringing of an action to collect any deficilency (or deficiency judgment)
owed to plaintiff by Defendants.
Respectfully submitted,
Erinp~D~
PA 10 Number: 52748
Attorney for Green Tree
5743 Centre Avenue
Pittsburgh, PA 15~W6
(412) 361-1000
L:\Green Tree\Benner, Debra\P2D.wpd
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SHERIFF'S RETURN - NOT SERVED
CASE NO: 2004-05306 P
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
GREEN TREE CONSUMER DISCOUNT
VS
BENNER DEBRA J ET AL
R. Thomas Kline
, Sheriff
, who being duly sworn
according to law, says, that he made a diligent search and inquiry for
the within named DEFENDANT
, to wit:
BENNER DEBRA J
but was
unable to locate Her in his bailiwick. He therefore returns the
COMPLAINT - REPLEVIN
NOT SERVED , as to
the within named DEFENDANT
, BENNER DEBRA J
298 WALNUT LANE
CARLISLE, PA 17013
SERVICE STOPPED, PER FAX FROM ATTORNEY.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
3.70
.00
10.00
.00
31.70
..../
So ~;..-:;-",;:;;::;:...",~/.._/~...
p~~~
R. Thomas Kline
Sheriff of Cumberland County
DYER LAW FIRM
10/29/2004
Sworn and subscribed to before me
this !I/f!.. day Dfh
dOvE] C/4D. n - .
~~ ~.f{JL~, I~
Prothonotary
SHERIFF'S RETURN - NOT SERVED
CASE NO: 2004-05306 P
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
GREEN TREE CONSUMER DISCOUNT
VS
BENNER DEBRA J ET AL
R. Thomas Kline
, Sheriff
, who being duly sworn
according to law, says, that he made a diligent search and inquiry for
the within named DEFENDANT
, to wit:
BENNER ADINA
but was
unable to locate Him in his bailiwick. He therefore returns the
COMPLAINT - REPLEVIN
NOT SERVED , as to
the within named DEFENDANT
, BENNER ADINA
298 WALNUT LANE
CARLISLE, PA 17013
SERVICE STOPPED, PER FAX FROM ATTORNEY.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
6.00
.00
.00
10.00
.00
16.00
So answe:;:@~ . /.//.,:-?
-~?:-::/.--:.-.~/../ . .. ~
<~~~ 'Z:....//~----/.
R. Thomas Kline
Sheriff of Cumberland County
DYER LAW FIRM
10/29/2004
Sworn and subscribed to before me
this j.It: day Dfh
~~ A.D.
'PrL- 0, I'Vtd-iJu i AK
Prothonotary