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HomeMy WebLinkAbout04-5313DICKINSON COLLEGE, Plaintiff MARLENE A. SCHNELL, JOSEPH J. SCHNELL AND BARRY S. SCHNELL, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. CIVIL ACTION-LAW JURY TR/AL OF TWELVE DEMANDED NOTICE 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 Plaintiffs. 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, 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 INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Dated: October 20, 2004 Cumberland County Bar Association 32 South Bedford Street Carlisle, Permsylvania 17013 Telephone (7 l 7) 249-3166 AW~WILLIAMS & OTTO y ' I. D. Number 87326 10 E. High Street ~ Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff DICKINSON COLLEGE, Plaintiff MARLENE A. SCHNELL, JOSEPH J. SCHNELL AND BARRY S. SCHNELL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. ~,¢:-- 5313 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED COMPLAINT AND NOW, comes PlaintiffDickinson College by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby avers as follows: 1. PlaintiffDickinson College is a Pennsylvania educational institution and nonprofit corporation with its pr/ncipal place of business at West Street, Post Office Box 1773, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendants, Marlene A. Schnell and Joseph J. Schnell (hereinafter "Parents"), are adult individuals residing as husband and wife with a last known address of 139 Sumpwams Ave, Babylon, Suffolk County, NY 11702. 3, Defendant, Barry S. Schnell, (hereinafter "Student"), is an adult individual with a last known address of 400 E. 90th #4, New York, New York 10128-5104. 4. On or about September 18, 1987, Parents and Student entered into a PromissoryNote (Note #1) with Plaintiff for the financing of $5,354.00, plus interest, for educational services and benefits to Student at Plaintiffs institution, A copy of Note #1 is attached hereto as Exhibit "A." 5. On or about September 13, 1988, Parents and Student entered into an additional Promissory Note (Note #2) with Plaintiff for the financing of $4,695.00, plus interest, for educational services and benefits to Student at Plaintiffs institution. A copy of Note #2 is attached hereto as Exhibit "B." 6. On or about October 13, 1989, Parents and Student entered into an additional Promissory Note (Note #3 ) with Plaintifffor the financing of $3,500.00, plus interest, for educational services and benefits to Student at Plaintiff's institution. A copy of Note #3 is attached hereto as Exhibit "C." 7. On or about October 4, 1990, Parents and Student entered into an additional PromissoryNote (Note ~4) with Plaintifffor the financing of $4,000.00, plus interest, for educational services and benefits to Student at Plaintiff's institution. A copy of Note #4 is attached hereto as Exhibit "D." 8. The collective principal balance for Note #1, Note #2, Note #3 and Note #4 is $17,549.00. 9. Note #1, Note #2, Note #3 and Note #4 grant Plaintiff reasonable collection and attorueys' fees which Plaintiff has calculated to be $2,632.35. 10. As of October 7, 2004, the principal and interest due and payable by Parents and Student to Plaintiffwas $22,414.99 with interest accruing as per the terms of the attached Notes. 11. Parents and Student stopped making monthly payments on Note #1, Note #2, Note #3, and Note #4 on or about March 22, 2003. 12. As of October 7, 2004, the outstanding balance of $22,414,99 represents the total and actual overdue value of the financing provided to Parents and Student under Note #1, Note #2, Note#3 and Note #4 for which they have yet to pay. 13. Plaintiff fulfilled, performed and complied with all obligations and conditions of Note #I, Note #2, Note#3 and Note #4. COUNT I BREACH OF CONTRACT Dickinson College v. Marlene A. Schnell, Joseph J. Schnell, and Barry S. Schnell 14. Plaintiffhereby incorporates by reference the averments contained in Paragraphs 1 through 13 of this Complaint. 15. Parents and Student breached the expressed and implied obligations, conditions and terms of agreement of Note #1, Note#2, Note #3 and Note #4 by failing to pay the amounts financed therein. WHEREFORE, Plaintiffdemandsjudgment against Defendants, Marlene A. Schnell, Joseph J. Schnell, and Ban'y S. Schnell, in the amount of $22,414.99, plus interest accruing as per the terms of the Notes attached hereto, collection and attorneys' fees in the amount of $2,632.35 and costs of suit. COUNT II IN QUANTUM MER UIT Dickinson College v. Barry S. Schnell 16. Plaintiffhereby incorporates by reference the averments contained in Paragraphs 1 through 15 of this Complaint. 17. Having requested Plaintiff to loan money, and doing so to the benefit of Student, Student became liable to Plaintiff for said money. 18. Student has been unjustly enriched by accepting said money without paying Plaintiff reasonable compensation therefor. 19. The total amount by which Student has become enriched is $22,414.99, plus interest accruing as per the terms of the Notes attached hereto. WHEREFORE, Plaintiff demands judgment against Defendant, Barry S. Schnell, in the an~ount of $22,414.99, plus interest accruing as per the terms of the Notes attached hereto, collection and attorneys' fees in the amount of $2,632.35 and costs of suit. Date: October 20, 2004 MARTSON DEARDORFF WILLIAMS & OTTO By ~ I.D. No. 87326 - ~ 10 E, High Street , ~, Carlisle, PA 17013-3093 (717) 243-3341 Attorneys for Plaintiff O-.2_(u:, / DICKINSON COLLEGE FLEXIBLE FINANCING SYSTEM - 7000 PLAN EDUCATIONAL GOODS AND SERVICES RETAIL INSTALLMENT CONTRACT Date September 18. 1987 I. Seller: Dickinson College, Carlisle, Pennsylvania 17013 Buyer(s): Joseph J. and Marlene A. Schnell 139 Sumpwams Avenue Bah~vlqn, NY 11702 If there is more than one Buyer, each of you will be obligated, jointly and severally, for all sums due and for the performance of all agreements as provided in this Contract. Under the terms of chis Educations! Goods and Services Retail Install- ment Contract, you have agreed to pay the expenses incurred for goods and services to be provided and rendered, as the case may be, to Barry Schnell (hereinafter "Student") during his/her enrollment at Dickinson College during the 1987-88 academic year, including tuition, room and board, books and supplies as herein stated (hereinafter the "Goods and Services"). The Goods and Services shall include only the following: Tuition and room and board II. TERMS OF PAYMENT AND PAYMENT SCHEDULE Disclosures Required by Federal Law ANNUAL PERCENTAGE RATE:* Cost of credit as yearly rate 9.247 % FINANCE CHARGE: Dollar amount credit will cost Buyer 3,724.12 AMOUNT FINANCED: Amount of credit provided by Dickinson College $5,354.00 TOTAL OF TOTAL SALE PAYMENTS: PRICE: Amount paid Total cost of by Buyer as purchase on total of ali credit, in- scheduled cluding down payments payment of $ 9,298.00 .$ 9,078.12 $ 14,8§0.00 EXHIBIT "A" Buyer's payment schedule will be as follows: Number of Payments 151 Amount of Payments $60.12 When Payments Are Due Monthly commencing 10/30/87 until 5/30/00 *Variable Rate: Late Charge: Prepayment: The ~_N~UJAL PERCENTAGE RATE disclosed above is a variable rate and may change. The ANNUAL PERCENTAGE RATE ~y increase during the term of this transaction if the prime rate of interest announced in the Wall Street Journal as of the close of business on 3une 30 of each calendar year increases, and will be increased to the prime rate plus 1%. The ANNUAL PERCENTAGE RATE will not increase more than once a year, and the new interest rate will become effective on July I following the increase, if any~ in the prime rate of interest. Any increase will be in the form of higher payment amounts. If your cost of the Goods and Services sold hereunder were $ 5,354.00 at 9.25 % per annum for 151 months, and the prime rate plus 1% were iBcreased to 10.25 %, your regular monthly payments would increase to $ 6q.?~ Further, the ANNUAL PER- CENTAGE RATE will not increase to more than 18% or such other rate as may be permitted under the Pennsylvania Goods and Services Installment Sales Act. If a payment is more than 15 days late, a sum equivalent to 5% of the late payment. (but no more than $2.50 and not less than $1.00) may be charged. Buyer may prepay the unpaid balance of the Amount Financed and any FINANCE CHARGE due through the date of early payment, in full or in part, without penalty. SEE SECTION VI OF THE CONTRACT BELOW FOR ANY ADDITIONAL INFORMATION ABOUT NON- PAYMENT, DEFAULT AND REQUIRED REPAYMENT BEFORE THE SCHEDULED DATE FOR REPAYMENT OF THE AMOUNT FINANCED. -2- 2. 3. 4. 5. III. ITEMIZATION OF AMOUNT FINANCED Cash price of Goods ~nd Services: $ 34,6~0.00 Total down payment: 9,296.00 Unpaid balance of cash price (1 - 2): 5,354.00 Amount paid to others on Buyer's behalf: Amount Financed (3 + 4): $ 5,354.00 IV. CREDIT INSURANCE Credit life insurance for the term of this Contract is not required. V. NO WARRANTIES THERE ARE NO WAP~IES, EITHER EXPRESSED OR IMPLIED, GIVEN BY SELLER IN CONNECTION WITH SALE OF THE GOODS AND SERVICES COVERED BY THIS CONTRACT UNLESS BUYER HAS BEEN GIVEN A SEPARATE WRITTENWA~. VI. ADDITIONAL PROVISIONS 1. Buyer agrees to pay Seller the Total Sale Price by making the total dow~ paYment and paying Seller the Total of Paymen=s in the number and amount of monthly paYments shown in the PaYment Schedule. Payments are due on or before the same date of each month as the first payment date. Payments must be made to Fidelity Bank at the following.address: Fidelity Bank 141Garrett Road Upper Darby, PA 19082 2. Buyer's legal rights include the right to pay all or part of the amounts due on this Contract in advance of their due dates, to obtain a refund or credit of unearned Finance Charge whenever the amount is paid in full //1 advance, and (with Seller's consent) to reinstate the Contract if Buyer timely cures any default. 3- Buyer shall be deemed to have committed an "Event of Default" of the Contract upon the occurrence of any of the following: (a) failure to make any paYment on or before the date it is due, (b) failure to make a payment on any other contract outstanding with Seller, -3- (c) failure to perform any other provision of the Contract, (d) providing Seller with false information or signatures, (e) death, incompetence, or conviction of any Buyer of crime in- volving fraud or dishonesty, (f) insolvency or bankruptcy of any Buyer. 4. Upon or after the occurrence of any Event of Default, Seller will provide Buyer with notice, by certified mail as required by law, addressed to Buyer's last known address as shown on Seller's records, advising Buyer of the default and of Buyer's right to cure the default. The notice will provide the time, amount and performance necessary to cure the default. If Buyer does not cure the default as provided in the notice, Seller's rights shall include the right to declare all sums due on the Contract to be immediately due and payable. 5. Waiver by Seller of any event of default shall not be binding upon Seller if Seller should thereafter choqse to exercise that or any other right or a similar Event of Default occurs later. All Seller's rights and remedies shall be cumulative. Seller's exercise of one or more rights shalI mot cause Seller to lose any other rights. 6. This Contract is freely assignable by Seller. Buyer agrees that upon receiving notice of the assignment Buyer shall be obligated'to the Assignee' of this Contract, which Assignee shall have all of Seller's rights and remedies. 7. If any part of this Contract is held to be illegal, void or unenforceable, that provision shall be deemed not to have been a part of this Contract, which shall otherwise remain fully effective. 8. The laws of the Commonwealth of Pennsylvania shall apply to this Con- tract except to the extent supplemented, superseded~ or pre-empted by federal law. 9. This Contract shall be binding upon the parties hereto, their heirs, successors, assigns and legal representatives. 10. TIM~ IS OF THE ESSENCE OF THIS CONTRACT. NOTICE: A~Y HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLALMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH TRE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. NOTICE 'TO BUYER: (1) DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACE. (2) YOU ARE ENTITLED TO A COMPLETELY FILLED-IN COPY OF THIS AGREEMENT. (3) UlfOER THE LAW, YOU HAVE THE RIGHT TO PAY OFF IN ADVANCE -4- THE FULL A~MOUNT DUE AND UNDER CERTAIN CONDITIONS TO OBTAIN A PARTL%L REFUND OF THE FINANCE CHARGE. DATE: BUYER(S) ACKNOWLEDGE(S) RECEIVING a COMPLETED COPY OF THIS CONTRACT AND INTEN~S) TO BE~G~LLY~UND/fBY ITS TERMS. DICKINSON COLL~GE FOR DICKINSON COLLEGE USE ONLY For value received, Seller hereby sells, assigns, and transfers to Fidelity Bank all of Seller'a rights, title and interest in this Educatiomal Goods and Services Retail Installment Contract, with full recourse to Seller. This ~-'~ day of DICKINSON COLLEGE, BY: -5- DICKINSON COLLEGE'FLEXIBLE FINANCING SYSTEM - 7000 PLAN EDUCATIONAL GOODS AND SERVICES RETAIL INSTALLMENT CONTRACT Date September 13, 1988 I. Seller: Dickinson College, Carlisle, Pennsylvania 17013 Buyer(s): Joseph J. and Marlene A. Schnell 139 Sumpwams Avenue Babylon. NY 11702 If there is more than one Buyer, each of you will be obligated, jointly and severally, for all sums due and for the performance of all agreements as provided in this Contract. Under the terms of this Educational Goods and Services Retail Install- ment Contract, you have agreed to pay the expenses incurred for goods and services to be provided and rendered, as the case may be, to Barry S. (hereinafter "Student") during his/her enrollment at Dickinson College during the 1988-89 academic year, including tuition, room and board, books and supplies as herein stated (hereinafter the "Goods and Services"). The Goods and Services shall include only the following: Tuition, room and board II. TERMS OF PAYMENT AND PAYMENT SCHEDULE Disclosures Required by Federal Law ANNUAL PERCENTAGE RATE:* Cost of credit as yearly rate 9.999 FINANCE CHARGE: Dollar amount credit will cost Buyer $ 3,276.60 AMOUNT FINANCED: Amount of credit provided by Dickinson College $ 4,695.00 TOTAL OF PAYMENTS: Amount paid by Buyer as total of all scheduled payments $ 7,971.60 TOTAL SALE PRICE: Total cost of purchase on credit, in- cluding down payment of $ 11,105.00 $ 15,800.00. EXHIBIT "B" Buyer's payment schedule will be as follows: Number of Payments 140 Amount of Payments $56.94 When Payments Are Due Monthly commencing 9/30/88 until K/RO/00 *Variable Rate: Late Charge: Prepayment: The ANNUAL PERCENTAGE RATE disclosed above is a variable rate and may change. The ANNUAL PERCENTAGE RATE may increase during the term of this transaction if the prime rate of interest announced in the Wall Street Journal as of the close of business on June 30 of each calendar year increases, and will be increased to the prime rate plus 1%. The ANNUAL PERCENTAGE RATE will not increase more than once a year, and the new interest rate will become effective on July 1 following the increase, if any, in the prime rate of interest. Any increase will be in the form of higher payment amounts. If your cost of the Goods and Services sold hereunder were $ 4,695.00 at 10.00 % per annum for 140 months, and the prime rata plus 1% wereiDcreased to 11.00%, your regular monthly payments would increase to $59.66 Further, the ANNI/AL PER- CENTAGE RATE will not increase to more than 18% or such other rate as may be permitted under the Pennsylvania Goods and Services Installment Sales Act. If a payment is more than 15 days late, a sum equivalent to 5% of the late payment (but no more than $2.50 and not less than $i.00) may be charged. Buyer may prepay the unpaid balance of the Amount Financed and any FINANCE CHAiIGE due through the date of early payment, in full or in part, without penalty. SEE SECTION VI OF THE CONTRACT BELOW FOR ANY ADDITIONAL INFORMATION ABOUT NON- PAYMENT, DEFAULT AND F. EQUIKED REPAYMENT BEFORE THE SCHEDULED DATE FOR REPAYMENT OF THE AMOUNT FINANCED. -2- 2. 3. 4. 5. III. ITE~tIZATION OP A_HOtA4T FINANCg9 Cash price of Goods ~nd Se~ices: $ 15,800.00 Total down payment: 11,105.00 Unpaid balance of cash price (1 - 2): 4,695.00 Amount paid to others on Buyer's behalf: -0- Amount Financed (3 + 4): $ 4,695.00 IV. CREDIT INSURANCE Credit life insurance for the term of this Contract is not required. V. NO WARRANTIES THERE ARE NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, GIVEN BY SELLER IN CONNECTION WITH SALE OF THE GOODS AND SERVICES COVERED BY TMIS CONTRACT UNLESS BUYER fIAS BEEN GIVEN A SEPARATE W~ITTENWARRANTY. VI. ADDITIONAL PROVISIONS 1. Buyer agrees to pay Seller the Total Sale Price by making the total down payment and paying Seller the Total of Payments in the number and amount of monthly payments shown in the Payment Schedule. Payments are due on or before the same date of each month as the firs: payment date. Payments must be made :o Fidelity Bank at the following address: Fidelity Bank 141Garrett Road Upper Darby, PA 19082 2~ Buyer's legal rtshts include the right to pay all or part of the amounts due on this Contract in advance of their due da:es, to obtain a refund or credit of unearned Finance Charge whenever the amount is paid in full in advance, and (with Sailor's consent) to reins:ate the Contract if Buyer timely cures any default. 3. Buyer shall be deemed to have commit=ed an "Event of Default" of the Con:tact upon :he occurrence of any of the following: (a) failure to make any payment on or before the date it is due, (b) failure :o make a payment on any other contrac~ outstanding with Seller, -3- (c) failure to perform any other provision of the Contract, (d) providing Seller with false information or signatures, (e) death, incompetence, or conviction of any Buyer of crime in- volving fraud or dishonesty, (f) insolvency or bankruptcy of any Buyer. 4. Upon or after the occurrence of any Event of Default, Seller will provide Buyer with notice, by certified mail as required by law, addressed to Buyer's last known address as shown on Seller's records, advising Buyer of the default and of Buyer's right to cure the default. The notice will provide the time, amount and performance necessary to cure the default. If Buyer does not cure the default as provided in the notice, Seller's rights shall include the right to declare all sums due on the Contract to be immediately due and payable. The Buyer agrees to pay all attorney's fees and other reasonable collection costs and charges necessary for the collection of any amount not paid when due. 5. Waiver by Seller of any event of default shall not be binding upon Seller if Seller should thereafter choose to exercise that or any other right or a similar Event of Default occurs later. Ail Seller's rights and remedies shall be cumulative. Seller's exercise of one or more rights shall not cause Seller to lose any other rights. 6. This Contract is freely assignable by Seller, Buyer agrees that upon receiving notice of the assignment Buyer shall be obligated to the Assignee of this Contract, which Assignee shall have all of Seller's rights and remedies. 7. If any part of this Contract is held to be illegal, void or unenforceable, that provision shall be deemed not to have been a part of this Contract, which shall otherwise remain fully effective. 8. The laws of the Commonwealth of Pennsylvania shall apply to this Con- tract except to the extent supplemented, superseded or pre-empted by federal law. 9. This Contract shall be binding upon the parties hereto, their heirs, successors, assigns and legal representatives. 10. TIME IS OF THE ESSENCE OF THIS CONTRACT. NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER. NOTICE TO BUYER: (1) DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACE. (2) YOU ARE ENTITLED TO A COMPLETELY FILLED-IN COPY OF THIS AGREEMENT. (3) UNDER THE LAW, YOU HAVE THE RIGHT TO PAY OFF IN ADVANCE -4- THE FULL A~MOLrNT DUE AND UNDER CERTAIN CONDITIONS TO OBTAIN & FARTL~L REEUND OF THE FINANCE C~RGE. DATE: FOR DICKINSON COLLEGE USE ONLY For value receive~, Seller hereby sells, assigns, and transfers to Fidelity Bank all of Seller's rights, title and interest in this Educational Goods and Services Retail Installment Contract, with full recourse to Seller. This 26th day of DICKINSON COLLEGE, BY: September Assi stant Corr~Dtrol 1 er TITEE · 19 88 -5- DICKINSON COT.T."~q'E FLEXIBLE FINANCING b'Yb'l~M - 7000 PLAN 5IX3CATIONAL C~SODS AND ~kRVICE~ R~i'AIL INS~ CONTRACT Date October 13, 1989 Seller: Buyer(s): Dickinson College, Carlisle, Pennsylvania 17013 Marlene A. and Joseph J. Schnell 139 Sumpwams Avenue Babylon, NY 11702 If there is more than one Buyer, each of you will be obligated, jointly euqd severally, for all sums due and for the performance of all agreements as provided in this Contract. Under the terlms of this F~tucational Goccts and Services Retail Installment Contract, you have agreed to pay the expenses inctL~red for goods and services tobe provided and rendered, as the case may be, to Barry S. Schnell (hereinafter "Student") during his/her enrollment at Dickinson College during the 1989-90 academic year, including tuition, room and boar~l, hooks and supplies as herein stated (hereinafter the "C~ and Services"). The C~ and Services shall include only tuition, room and~arct. II. 'l'k~MS OF PAYMEi~ AND PAYMENT SCH~ Disclosures Required by Federal Law ANNUAL PERCENTAGE RATE:* Cost of credit as yearly rate FIbDkNCE C'mL~RGE: ~llar amount credit will cost Buyer 11.762 % $2,658.08 ~V~3NTFII~;CED:[ TOT~.L OF PAYMENt: Amount of credit Amount paid by provided by Buyer as total of Dickinson College all scheduled payments $3,500.00 6,158.08 TOTAL SALE PRICE: Total cost of purchase on credit, in- c lu~ing down ~ymen~ of 13,800.00 17,300.00 EXHIBIT "C" Rev 9/89 Buyer's payment schedule will be as follows: Nu~r of Payments Amount of Payments $48.1 ~ When Payments are Due ~onthly commencing 10/30/89 until 6/30/00 *Variable Rate: The ANNUAL PERCE~GERATEdisclosed above is a variable rate and may change. 7he ANNUAL PERCEN~GERATiEmay fncrease during the term of this transaction if the prime rate of interest arunounced in the Wall ~_reet Jou~nal as of the close of business on June 30 of each calendar year increases, and will be increased to the prime rate plus 1~. The ANNUAL PERCE~GE RAT'E will not increase more than once a year, and the new interest rate will become effective on July 1 following the increase, if any, in the prime rate of interest, Any increase will be in the form of higher payment amounts. If your cost of the C~ arKi Services sold hereurder were $ 3,5~0.00 at I?.~Q ~ per annum for 128 months, ar~ the prime rate plus 1~ were increased to 13,00 ~, your re~3ular monthly payments would increase to $50,13 ~%lrther, the ANNUAL PERC~GE RATE will not increase to more than 1896 or such other rate as may be permitted under the Perunsylvania Goods and Services Installment Sales Act. Late Charge: If a payment is more than 15 days late, a sum equivalent to 5~ of the late payment (but no more than $2.50 and not less than $1.00) may be char~ed. Prepayment: Buyer may prepay the unpaid balance of the Amount Financed and any FINANCE CHARGE due through the date of early payment, in full or in part, without penalty. SECTION VI OF THE CONTRACT R~OW FOR ANY ADDITIONAL INFORMATION ABOUT NON-PAYS, D~'AULT AND Rf~QUIREDREPAYMENTBATORETHE SCHEDt~.FDDATEFORREPAYMENTOFTHE AMOUNT FINAl. III. I~I~TION OF AMOUNT FINANCfD 1, Cash price of C~oods and Services: 2. Total down payment: 3. Unpaid balance of cash price (1 - 2): 4. Amount paid to others on Buyer's behalf: 5. Amount Financed (3 + 4): 17,300.00 13,800.00 3,500.00 3,500.00 2 IV. CREDIT INSL~%INCE Credit life inst~'ance for the term of this Contract is not required. V~ NO WAR/'~INTIES THERE ARE NO WARRANTIES, EITHER EXPRE~o OR IMPLIED, GIVEN BY ~3,wR IN CONNECTION WITH SALE OF THE GOODS AND uE~VICES COVERED BY THIS CONTRACt UN~S BUYER HAS BMMM GIVEN A SEPARATE WRI'rfh~q ~. VI. ADDITIONAL PROVISIONS 1. Buyer agrees to pay Seller the Total Sale Price by making the total down payment and payir~3 Seller the Total of Payments in the nu~r and amount of monthly payments shown in the Payment Schedule. the first payment date. following address: Payments are due on or before the same dat4 of each month as Payments must be made to First Wachovia, Inc. at the First Wachovia, Inc. P.O. Box 70095 Charlotte, NC 282724095 2. Buyer's legal ri~thts include the riDht to pay all or part of the amounts due on this Contract in advance of their due dates, to obtain a refund or credit of unearned Finance Charge whenever the amount is paid in full in advance, and (with Seller's consent) to reinstate the Contract if Buyer timely cures any default. Buyer shall be deemed to have committed an "Event of Default" of the Contract upon the occtuw-rence of any of the following: (a) failure to make any payment on or before the date it is due, (b) failure to make a payment on any other Contract outstanding with Seller, (c) failure to perform any other provision of the Contract, (d) 'providin~ Sailer with false information or signatures, (e) death, incompetence, or conviction of any Buyer of crime involving fraud or dishonesty, (f) insolvency or ban~ptcy of any Buyer. 4. Upon or after the occurrence of any Event of Default, Seller will provide Buyer with notice, bM certified mail as required by law, add~fessed to ~uyer's last known address as shown on Seller's records, advising Buyer of the default and of Buyer's right to ct~e the default. The notice will provide the time, amount and performance necessary to cure the default. If Buyer does not cure the default as provided in the notice, Seller's rights shall include the right to declare all $~m~ due on the Contract to be immediately due and payable. The Buyer agrees to pay all attorney's fees and other reasonable collection costs and char~3es necessery for the collection of any amount not paid when due. Waiver by Seller of any Event of Defaul~ shall not be binding upon Saller if Seller should thereafter choose to exercise that or any other right or a similar Event of Default occurs later. All Saller's rights and remedies shall be cumulative, Seller's exercise of one or more rights shall not cause Seller to lose any other rights. 6. This Contract is freely assignable by Seller. Buyer agrees that upon receiving notice of the assi_cnment Buyer shall be obligated to the lssi~Faee of this Contract, which Assignee shall have all of Seller's right and remedies. 3 ?.'If any part of this Contract is held to be illegal, void or unenforceable, that provision shall be deemed not to have been a part of this Contract, which shall otherwise remain fully effective. APPLICABLE LAW: This Agreement, whenever called upon to be construed, shall be govelnned by the domestic internal laws of the Commonwealth of Pennsylvania except to the e>~ent supplemented, superseded or preempted by federal law. CONS~ TO JURISDICTION, VENUE AND ~VlCE: The parties to this Agreement consent and agree that all legal proceedings relatinG to the subject matter hereof shall be maintained in the Court of Common Pleas of O~mberland County, Pennsylvania, or, if applicable, the United States District Court of the Middle District of Pennsylvania, and all parties hereto consent and agree that jurisdiction and venue for such proceedinqs shall lie exclusively within said court. ~ervice of process in any such pln0ceeding may be made by certified mail, return receipt requested, directed to the respective party at the address set forth above. 10. This Contract shall be binding upon the parties hereto, their heirs, successors, assigns and legal representatives. 11. TIME IS OF THE ESSENCE OF THIS CON/7%~CT. NOTICE: ANY HOLDER OF THIS CON~ CREDIT CONl~3%CT IS SUBJECT TO ALL CLAIMS AND D~'~NSES WHICH THE DEBTOR COULD AS~r2{F AGAINST THE S~T,T,WR OF GCODS OR ~VICES OBTAINED PURSUANT HERETO OR WI/H THE PROt:~:~:~ ~ HERfDF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXL:~iI) AMOUNTS PAID BY THE DEBTOR HEREUNDER. NOTICE TO BUYER: (1) DO NOT SIGN THIS AGRk~q~ENT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACE. (2) YOU ARE ENTITLED TO A COMPL~i~LY FIT~.~n-IN COPY OF THIS AGR~SNT. (3) UNDER THE LAW, Y~J HAVE THE RIGHT TO PAY OFF IN ADVANCE THE FULL AMOUNT DUE AND UNDER C~R, rAIN CONDITIONS TO OBTAIN A PARTIAL RE~73ND OF THE FINANCE CHARGE. RECEIVING A COMPL~'I~D COPY OF THIS CONTRACT AND INI't~D(S) TO I AGREE TO REPAY ALL AM(~INTS 5~3E ON THIS LOAN IF THE BORROWER(S)/BUYER(S) FALLS TO DO SO IN ACCORDANCE WITH THE IARMS~)F ,THE ~NgTE: DATE: DICKINSON COT ,T ,F~GE ,4 DICKINSON COTL~'E FLEXIBLE FINANCING SY~i'~ - 7000 PLAN EDUCATIONAL GO3DS AND D~VICES R~£AIL INSTAll MENT CONTRACT Date October 4, 1990 Seller: Buyer(s): Dickinson College, Corlisle, Pennsylvania 17013 Marlene A. and Joseph J. Schnell 139 SumpWams Avenue Babylon, NY 11702 If there is more than one Buyer, each of you. will be obligated,, jointly and severally. for all su~s due and for the performance of all agreements as provided in this Contract. UPJer the terms of this Educational Goods and Services Retail Installment Contract~ you have agreed to Day the expenses incurred for goods ar~ services to be provided and rendered, as the case may be, to Barry S. (hereinafter "Student") durinc3 his/her enrollment at Dickinson Collecje during the ~ academic year, including tuition, room and boar~, books and supplies as herein stated (hereinafter the "Goods and Services"). The Goods and Services shall include only tuition, room and board. II. 'I'~6MS OF PAYMENT AND PAYMENT SCHEDULE Disclosures Required by Federal Law ANNUAL PERCENTAGE RATE:* Cost of credit as yearly rate FIMANCE CHARGE: Dollar amount credit will cost Buyer 10.768 · $ 2,453.08 AMOUNT FINANCED: Amount of credit provided by Dickinson College $ 4,NNN,NO TOTAL OF PAYME3xFI~: Amount paid by Buyer as total of all scheduled payments $ 6,453.08 TOTAL SALE PRICE: Total cost of purchase on credit, in- cluding down payment of $ 14.630.00 $ 18,6x30.00 EXHIBIT "D" Rev 9/89 tk~¥er~s payment schedule will be as follows: Numar of Payments 116 Amount of Payments $55.63 When Payments are Due Monthly commencing 10/28/90 until 5/28/00 *Variable Rate: !'ne ANNUAL PERCENTAGE RA~FE disclosed above is a variable rate and may change. The ANNUkL PERCENI-AGERAlqE~y increase during the term of this transaction if the prime rate of interest announced in the Wall Stl~eet Journal as of the close of business on June 30 of each calendar year increases, and will be increased to the prime rate plus 1~. AN~JkL PERCq'~GE P~/]E will not increase more than once a year. and the new interest rate will become effective on July 1 following the increase, if any, in the prime rate of interest. Any increase will ]De in the form of higher payment amounts. If your cost of the Goocls and Services sold hereunder were $ 4,000.00 at 11.00 ~ per anD~ for 116 months, and the prime rate plus iR were increased to 12.00 your rec3ular monthly payments would increase to $ 57.84 F~'ther, the A~ PERC~AGE RATE will not increase to more than 18% or such other rate as may be permitted under the Penn~lvania Goods and Services Installment Sales Act. Late Charge: If a payment is more than 15 days late, a sum ec~ivalent to 5~ of the late payment (but no more than $2.50 and not less than $1.00) may be charged. Prepayment: Buyer may prepay the unpaid balance of the Amount Financed and any FINANCE C~E due through the date of early payment, in full or in part, without penalty. ~;~ SECTION VI OF I'HE CONq]~ACT BELOW FOR ANY ADDITIONAL INFORMATION ABOUT NON-PAi%{ENT, DEFAULT AND FE~UIRED REPAYMENT BEFORE THE SCHEDt~.FD DATE FOR REPAYMENT OF THE AM~DUNT FINANCED. III. I/~!F_ATIOM CF B/~OLqN~ FINANc~JD 1. Cash price of Goods and Se~;lces: 2. Total do,an payment: 3. Unpaid balance of cash price (1 - 2): 4. Amount paid to other~ on Buyer's behalf: 5. B~©unt Financed (~ + 4): 18,630.00 14,630.00 4,000.00 4,000.00 IV. CREDIT INSUP31NCE Credit life ins~_~'ance for the term of this Contract is not required. V. NO WAI~-'3INTI~ THERE ARE NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, GIVEN BY S~L~R IN CONNECTION WITH SALE OF THE GOODS AND ~ERVICt~ COVERED BY THIS CONTRACT UN~.~S BUYER HAS Bk~q~ GIVEN A SEPARATE WRI rl'~N WARP3kNTY. VI. ADDITIONAL PROVISIONS Buyer ag~ees to pay Seller the Total Sale Price by making the total down payment and paying Seller the Total of Payments in the ~Jmber and amount of monthly payments shown in the Payment Schedule. the first payment date, following address: Payments are due on or before the same date of each month as Payments must be made to First Wachovia, Inc. at the First Wachovia, Inc. P.O. Box 70095 Ch~rlonte, NC 28272-0095 2. Buyer's legal rights include the right to pay all or part of the amot~ts due on this Contract in advance of their due dates, to obtain a ref~hnd or credit of uneaz-ned Finance Charge whenever the amount is paid in full in advance, and (with Seller's consent) to reinstate the Contract if Buyer timely ck~es any default. Buyer shall be deemed to have committed an "Event of Default" of the Contract upon the occurrence of any of the following: (a) failure to make any payment on or before the date it is due, (b) failure to make a payment on any other Contract outstanding with Seller, (c) failure to perform any other provision of the Contract, (d) providing Seller with false infor~ation or signatures, (e) death, incompetence, or conviction of any Buyer of crime involving fraud or dishonesty, (f) insolvency or bankruptcy of any Buyer. Upon or after the occurrence of any Event of, Default, ~eller will provide Buyer with aotice, by certified ~lail as required by law, addressed to Buyer's last known address as shown on Seller's records, advising Buyer of the default and of tklyer's right to o_~e the default. %he notice will provide the time, amount and performance necessary to cure the default. If Buyer does nct cure the default as provided in the notice, Seller's rights shall include the right to declare all s.m~ due on the Contract to be immediately due and payable. /'ne Buyer agrees to pay all attorney's fees ~ other reasonzlble collection costs and char~es necess~ for the collection of any amount not paid when due, Waiver by Seller of any Event of Default shall not be binding upon Seller if Seller should thereafter choose to exercise that or any other right or a similar Event of Default occurs later. All Seller's rights and remedies shall be cumulative. Seller's exercise of one or more rights shall not cause Seller to lose any other rights. /~nis Contract is freely assignable by Sel let. ~_~yer agrees that upon receivinq notice of the assi,_qr~ent t~yer shall be obligated to the Assi_gnee of this Contract. w~ich Assignee shall have all of Seller's right and remedies. 3 ~.'If any paz-t of this Contract is held to be illegal, void or unenforceable, that provision shall be deemed not to have been a part of this Contract, which shall otherwise remain fully effective. 8. APPLICABLE LAW: This Agreement, whenever called upon to be construed, shall be Governed by the domestic inter1~al laws of the Commonwealth of Per~lvania except to the e,~fcent supplemented, superseded or preempted by federal law. 9. CON~T~DJURISDIC'fIONi VENUE AND ~VICE: /he parties to this Agreement consent and agree that all legal proceedings relating to the subject matter hereof shall be maintained in the Cou/-t of Common Pleas of O~mherland County, Pennsylvania, or, if applicable, the United States District Cour~ of the Middle District of Pennsylvania, and all pal~ties hereto consent and agree that jurisdiction and venue for such proceedir~ shall lie exclt~sively within said court. Service of process in any s~ch proceeding may be made by certified mail, return receipt requested, directed to the respective party at the address set forth above. 10. This Contract shall be binding upon the parties hereto, their heirs, successors, assigns and legal representatives. 11. TIME IS OF THE ESSENCE OF THIS CONTRACT. NOTICE: ANY HOLDER OF THIS CONB73Mflq CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE D~IOR COUI]D A~l AGAINST THE ~%T~L~R OF GOOI~3 OR ~VICES OBTAINED PURSUANT HERETO OR WITH THE pR0ckV~. ~ HER~F. RECOV~lqY H~ER BY THE DEBAR SHALL NOT EXc~:~) AM~ PAID BY THE DLu1OR HERDER. NOTICE TO BUYER: (1) DO NOT SIGN THIS AGRE~ BF~RE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACE. (2) YOU ARE ENTI/7~n TO A COM~rmLY FII/i~D-IN COPY OF THIS AGI~. (3) UNDER THE LAW, YOU HAVE THE RIGHT TO PAY OFF IN ADVANCE THE FULL AMOUNT DUE AND UNDER C~IN CONDITIONS TO OBTAIN A PARI'£AL RF_~7374I) OF ~ FINANCE CHARGE. ~3YER?) ACKNO~,~P6"E(S) RECEIVING A COMPLEI]ED~PY OF THIS CONTRACT AND INi'END(S] TO DATE: DICKINSON COl .l knSE VERIFICATION I, THOMAS MEYER, Bursar of Dickinson College, acknowledge that I have the authority to execute this Verification on behalf of Dickinson College and certify that the foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of this lawsuit. The language of this Complaint is that of counsel and not my own. I have read the document and to the extent that this Complaint is based upon information which I have given to my counsel, it is true and correct and to the best of my knowledge, information and belief. To the extent that the content of this Complaint is that of cotmsel, I have relied upon counsel in making this Verification. This statement mid Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. Dickinson College ~.~ ~homas Meyer Bursar of Dickinson College Dated: F:WILES'tDATAFILE~DickinsonColIeg¢7619\Collections[Current\ 150.pral/nlm Create& 11/18/04 947AM Revised: 11/18/04 10:04AM 7619C 150 David R. Galloway, Esquire MARTSON DEARDORFF WILLIAMS & OTTO I.D. 87326 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for DICKINSON COLLEGE, Plaintiff go MARLENE A. SCHNELL, JOSEPH J. SCHNELL AND BARRY S. SCHNELL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-5313 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED PRAECIPE Please reinstate the attached Complaint against Bar~./S. Schnell, 1755 York Avenue, Apartment 5L, New York, NY 10128-6865, in the above-capti, oned action and return same to the undersigned for service. ~ R. ~'il~'~y, Esr[afire I. D. Number 87326 ! Ten East High Street ' Carlisle, PA 17013 (717) 243-3341 & OTTO Date: November 18, 2004 Attorneys for Plaintiff F:WILES~DATAFILE~DickinsonColIege7619\Collections\Currem\ 150.pta3 Created: 1/5/05 8:55AM Revi~ed: I/5/05 0:30PM 7619C 150 David R. Galloway, Esquire MARTSON DEARDORFF WILLIAMS & OTTO 10 E. High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff DICKINSON COLLEGE, Plaintiff MARLENE A. SCHNELL, JOSEPH J. SCHNELL AND BARRY S. SCHNELL, Defendants IN THE COURT' OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-5313 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO SETTLE, DISCONTINUE & END Plaintiff requests the above-captioned matter be marked settled, discontinued and ended. MARTSON DE WILLIAMS & OTTO aD'ff~vid R. Gallo~ty,"E'~quire [ I. D. Number 87326 10 E. High Street! Carlisle, PA 17013 (717) 243-3341 Date: January 5, 2005 Attomeys for Plaintiff CERTIFICATE OF SERVICE I, Jean Taylor, an authorized agent ofMartson DeardorffWilliams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr and Mrs. Joseph J. Schnell 139 Sumpwams Avenue Babylon, NY 11702-3712 Mr. Barry S. Schnell 1755 York Avenue Apartment 5L New York, NY 10128-6865 MARTSON DEAtLDORFF g//~I/LL~S & OTTO Jean~aylor rex(~ast High Street Car'lisle, PA 17013 (717) 243-3341 Date: January 5, 2005