HomeMy WebLinkAbout13-0205Owens Barcavage & McInroy, LLC
By: Bart W. Holmes, Esquire
PA ID No.: 85071
2595 Interstate Drive
Harrisburg, PA 17110
717-909-2500
717-909-2504 (fax)
~r;- i NE,~POTf-l~NOT~i~ 7,
2~! 3 JAN ! ! PM ! ~ ~ !
~UMBERLANt3 Ct~iJNTY
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND
COUNTY. PENNSYLVANIA
CCUSA York, PA LLC, t/d/b/a
Clear Choice USA York, Harrisburg,
Baltimore
2691 Baltimore Pike
Hanover, PA 17331 NO.: I ~_aDS Cl~lf
Plaintiff
v. .
Melinda Fesler and Douglas Fesler, h/w
311 Allen Street
Carlisle, PA 17013
Capital One Bank (USA),
National Association, t/d/b/a
Capital One Home Improvement Finance
4851 Cox Road .
Glen Allen, VA 23060
Clear Choice North America, and
Clear Choice USA
545 N. Broad Street, Suite 2
Canfield, OH 44406
CIVIL ACTION -LAW
COMPLAINT
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE
CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN
TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY
ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND
aM~ ~~03~~1
~ (~~Sas~
FILLING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE
CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO
SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGEMENT MAY BE
ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY
MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF
REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PEOPERTY OR
OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR
LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE,
GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND WHERE YOU
CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET CARLISLE, PA 17013
1-800-990-9108 717-249-3166
IN THE COURT OF COMMON PLEAS OF CUMBERLAND
COUNTY. PENNSYLVANIA
CCUSA York, PA LLC, t/d!b/a
Cleaz Choice USA York, Harrisburg,
Baltimore
2691 Baltimore Pike
Hanover, PA 17331 NO.:
Plaintiff
v.
CIVIL ACTION -LAW
Melinda Fesler and Douglas Fesler, h/w
311 Allen Street
Cazlisle, PA 17013
Capital One Bank (USA),
National Association, t/d/b/a
Capital One Home Improvement Finance
4851 Cox Road
Glen Allen, VA 23060
Clear Choice North America, and
Clear Choice USA
545 N. Broad Street, Suite 2
Canfield, OH 44406
COMPLAINT
AND NOW comes Plaintiff CCUSA York, PA LLC t/d/b/a Cleaz Choice USA York,
Harrisburg, Baltimore, by and through its attorneys Owens Barcavage & McInroy, LLC and Bart
W. Holmes, Esquire, and avers as follows:
1. Plaintiff CCUSA York, PA LLC t/d/b/a Cleaz Choice USA York, Harrisburg, Baltimore
(hereafter "CCUSA") is a Pennsylvania registered Limited Liability Company, PA ID.
No. 3671265, which had a business address of 2691 Baltimore Pike Hanover, PA 17331,
which was and is solely owned by Christopher D. Prince (hereafter "Prince"), who was
and is its sole member and manager.
2. Defendants Melinda and Douglas Fesler are adult individuals (hereafter the "Fesler's"),
who at all times relevant hereto were husband and wife, and are believed to reside at 311
Allen Street, Carlisle, PA 17013.
3. Capital One Bank (USA), National Association (hereafter "Capital"), tld/b/a Capital One
Home Improvement Finance, 4851 Cox Road Glen Allen, VA 23060, is a national bank
engaged in commercial banking, RSSD ID No. 2253891, and is believed to have
provided financing to the Fesler's for the window installation services provided to them
by CCUSA.
4. Clear Choice North America, and Clear Choice USA (hereafter "Clear Choice"), 545 N.
Broad Street, Suite 2, Canfield, OH 44406, is believed to be an Ohio Corporation, which
regularly does business in the Commonwealth of Pennsylvania, and which provided a
license to CCUSA York, PA LLC to do business using the Clear Choice name.
5. The Agreement at issue in this case, and the work performed by CCUSA pursuant to
which, was for home improvements to the Fesler Residence, specifically replacement
window installation, at 311 Allen Street, Carlisle, PA 17013 (hereinafter "Residence").
6. The Residence is owned by the Feslers (see Deed for Tax Parce140-22-0489-011, which
is attached hereto as Exhibit "A")
7. At all times relevant hereto, CCUSA did business as a window repair and replacement
business pursuant to a license from Clear Choice.
8. Pursuant to the license granted to CCUSA by Clear Choice, CCUSA was authorized to
use the Clear Choice name and forms, and offer its customers financing through Capital
and or Clear Choice.
9. On or about 10/1/2008, CCUSA and the Fesler's entered into an Agreement (hereinafter
"Agreement") for the installation of new windows in the Fesler's Residence at 311 Allen
Street, Carlisle, PA 17013.
10. Pursuant to the Agreement CCUSA agreed to install the windows selected by the Feslers.
11. Pursuant to the Agreement, the Feslers agreed to pay CCUSA $8948.16 for the new
windows and their installation.
12. The Agreement between CCUSA and the Feslers was memorialized in a written
agreement attached hereto as Exhibit "B," (hereinafter referred to as "Contract") the
terms of which are incorporated herein by reference as if set forth at length.
13. It is believed, and therefore averred, that the Contract was signed only by Mrs. Feder for
herself and as agent for Mr. Fesler.
14. In the alternative, if Mrs. Fesler did not sign the Contract as agent for Mr. Feder, then the
written Contract, including the arbitration provision, is not enforceable against CCUSA
by Mr. Fesler. Mr. Fesler as owner of the Residence did receive all of the benefits of the
bargain. Mr. Fesler did agree to pay CCUSA for the windows and their installation
pursuant to the Agreement.
15. Pursuant to the Agreement between the Feslers and CCUSA, and the written Contract,
CCUSA purchased the windows selected by the Feslers, and hired and paid
subcontractors to install the windows.
16.On or about 1/13/2009, the new window installation at the Fesler Residence was
completed or substantially completed making payment due to CCUSA by the Feslers.
17. Inspite of demand for same, the Fesler's have not paid CCUSA for the new windows or
their installation in the Fesler Residence.
18. The Contract provides for azbitration of disputes in the event negotiation cannot resolve
disputes between the parties to the Contract.
19. It is believed, and therefore averred, the Feslers aze challenging the terms and
enforceability of the Contract which terms include the azbitration provision of same.
20. The Feslers have not attempted in any way to negotiate this dispute or to pay CCUSA for
the materials and services provided to them, as required by the Contract memorializing
the Agreement.
21. In the alternative, the Feslers refusal to make payment upon demand or negotiate as
required by the Contract has breached the Agreement and the Contract such that the
arbitration provision of the Contract is no longer enforceable against CCUSA as to Mr.
Fesler or Mrs. Fesler.
22. In the alternative, if Mrs. Fesler was not acting as Mr. Fesler's agent when she executed
the Contract, the arbitration provision of the Contract is not enforceable against CCUSA
as to Mr. Fesler, who also received the benefits of the Agreement as owner of the
Residence.
23. This Complaint is filed to ensure the applicable statute of limitations is tolled in the event
the Feslers refuse to submit to azbitration, or in the event Mr. Fesler denies he is a party
to the written Contract, with this Court retaining jurisdiction to ensure compliance with
the terms of the arbitration provision of the Contract; and, if Mr. Feder denies he is a
party to the Contract, jurisdiction over CCUSA's claims against Mr. Fesler.
24.On or about January 13, 2009, Mrs. Fesler signed a Certificate of Completion for the
work performed pursuant to the Agreement and Contract, entitling CCUSA to payment of
$8,948.16 (the Certificate of Completion is attached as Exhibit "C," the terms of which
are incorporated herein by reference).
25. On or about January 14, 2009, CCUSA, by and through its sole owner and member and
manager Prince, signed the Certificate of Completion and thereafter forwarded same to
Capital so that CCUSA could be paid pursuant to the financing agreement the Fesler's
had entered into with Capital to pay for the replacement window installation and services
of CCUSA.
26. Sometime thereafter, Mrs. Fesler, individually and as agent for Mr. Feder, falsely
claimed that Prince had forged her signature on the Certificate of Completion, and made
a report to the police.
27. The matter was referred to the Cumberland County District Attorney's Office which
disapproved prosecution.
28. Inspite of lack of prosecutorial approval, the investigating police officer filed a criminal
complaint and affidavit of probable cause resulting in charges against Prince.
29. After another review of the case, the Cumberland County District Attorney's Office
requested, and received Court approval, to none proseque the charges against Prince on
May 27, 2010, said approval of which was entered by the District Attorney's Office on
March 13, 2012 (a copy of the Nolle Pros is attached hereto as Exhibit "D.")
30. On 12/12/2009, Mrs. Fesler signed a notarized Identity Fraud Information Form provided
to her by Capital which indicates "Service issues aze pending & unresolved to date." Mrs.
Fesler further indicated that "I am not accepting responsibility for payment on this
account," then added in brackets, "(At this time)." Mrs. Fesler further stated that
Christopher Prince/Cleaz Choice USA forged the Certificate of Completion. The
December 9, 20091etter from Capital and the Identity Fraud Information Form completed
by Mrs. Fesler are attached hereto as Exhibit "E."
31. By and undated letter to Mrs. Fesler, Capital notified Mrs. Fesler that "We've received
your signed loan document and the Certificate of Completion for your Capital One Home
Improvement Finance Loan and have sent the full loan proceeds to your contractor." This
letter is attached hereto as Exhibit "F."
32. Neither Prince nor CCUSA received any payment from Capital, Clear Choice or the
Feslers.
33. It is believed, and therefore averred, that if a payment was made by Capital as set forth in
Exhibit "F," then the payment was made to Cleaz Choice, which never distributed said
monies to Prince or CCUSA.
34. It is believed, and therefore averred, that if a payment was made by Capital as set forth in
Exhibit "F," that Cleaz Choice knew this money belonged to CCUSA and intentionally
failed to distribute said money to CCUSA.
35. In the alternative, it is believed, and therefore averred, that Cleaz Choice directed Capital
not to pay CCUSA, in violation of the license agreement between Clear Choice and
CCUSA (the license agreement is in the possession of Clear Choice and Plaintiff has not
been able to obtain a copy at the time of this filing).
36. In the alternative, it is believed, and therefore averred, that Capital has been paid by the
Feslers, pursuant to the finance agreement wherein the Feslers borrowed from Capital the
money for the installation of replacement windows by CCUSA, but has refused to pay
CCUSA.
37. In the alternative, it is believed, and therefore averred, that the Feslers have not paid
Capital pursuant to the financing agreement, or made partial payment for which they
received reimbursement from Capital, requiring them to pay CCUSA directly.
38. It is believed, and therefore averred, that CCUSA was identified as the contractor to be
paid pursuant to the finance agreement between the Feslers and Capital.
39. It is believed, and therefore averred, that at all times relevant hereto, Mrs. Feder was
acting as agent for Mr. Fesler.
COUNT I -BREACH OF CONTRACT
CCUSA v. the Feslers
40. The allegations in the foregoing pazagraphs are incorporated herein by reference as if set
forth at length.
41. The Fesler's entered into an Agreement with CCUSA for the purchase and installation
into their Residence which Agreement was memorialized by the Contract.
42. Mrs. Fesler entered into the Agreement and Contract with CCUSA for herself and as Mr.
Fesler's agent.
43. In the alternative, if Mrs. Feder was not acting as Mr. Fesler's agent when she executed
the Contract with CCUSA, Mr. Fesler nevertheless entered into the Agreement and
received the benefits of the Agreement, but the Contract arbitration provision is not
enforceable against CCUSA as to Mr. Fesler.
44. CCUSA performed pursuant to the Agreement and written Contract in that it purchased
the requested windows and had them installed.
45. The Feeler's promised CCUSA $8,948.16 for the windows and installation.
46. The Feeler's have refused to pay CCUSA for the windows and installation.
47. The Fesler's have refused to negotiate with CCUSA as required by the Contract
memorializing the Agreement, making the arbitration provision of the Contract
unenforceable against CCUSA.
WHEREFORE, CCUSA demands judgment against Melinda and Douglas Fesler,
husband and wife, individually or jointly and severally, in an amount of $8,948.16, plus interest
from the time of completion of the window installation, costs of suit, and other relief this
Honorable Court deems just and proper. In the alternative, it is demanded that this Honorable
Court order the Fesler's, one or both, to submit to arbitration pursuant to the Contract
memorializing the Agreement.
COUNT II -UNJUST ENRICHMENT
CCUSA v. the Feelers
48. The allegations in the foregoing paragraphs are incorporated herein by reference as if set
forth at length.
49. In the alternative, if the Agreement and Contract are found to be unenforceable against
Mr. Fesler or Mrs. Fesler, or both, the Fesler's are liable to CCUSA under a theory of
unjust enrichment, in that:
a. Benefits, the new windows and their installation, were conferred on the Fesler's
by CCUSA;
b. The Fesler's accepted these benefits from CCUSA;
c. The Fesler's acceptance and retention of the windows and their installation was
under such circumstances that it would be inequitable for them to retain the
benefit without payment of value;
d. The Fesler's have not paid CCUSA for the windows or their installation.
e. The Residence owned by the Feslers has appreciated in value as a result of the
work and materials provided by CCUSA.
50. The Fesler's have refused to negotiate with CCUSA as required by the Contract
memorializing the Agreement, making the arbitration provision of the Contract
unenforceable against CCUSA.
WHEREFORE, CCUSA demands judgment against Melinda and Douglas Fesler,
husband and wife, individually or jointly and severally, in an amount of $8948.16, plus interest
from the time of completion of the window installation, costs of suit, and other relief this
Honorable Court deems just and proper. In the alternative, it is demanded that this Honorable
Court order the Feslers, one or both, to submit to arbitration pursuant to the Contract
memorializing the Agreement.
COUNT III -BREACH OF CONTRACT -THIRD PARTY BENEFICIARY
CCUSA v. CAPITAL
51. The allegations in the foregoing paragraphs are incorporated herein by reference as if set
forth at length.
52. It is believed, and therefore averred, that CCUSA was identified as the beneficiary of the
finance agreement between Capital and the Feslers.
53. Benefits, payment of all amounts due and owing to CCUSA pursuant to the Agreement
and Contract between the Feslers and CCUSA, were not paid by Capital to CCUSA.
WHEREFORE, CCUSA demands judgment against Capital, in an amount of $8,948.16,
plus interest from the time of completion of the window installation, costs of suit, and other relief
this Honorable Court deems just and proper.
COUNT IV -CONVERSION
CCUSA and PRINCE v. CLEAR CHOICE
54. The allegations in the foregoing pazagraphs aze incorporated herein by reference as if set
forth at length.
55. CCUSA only became awaze of Exhibit "F" through Defendant Fesler's Answer with New
Matter in the case of Christopher D. Prince v. Melinda and Douglas Fesler, h/w, at 2012-
3917, Cumberland County.
56. The aforementioned Answer with New Matter was filed on October 11, 2012.
57. Prior to the filing of Defendant Fesler's Answer with New Matter on October 11, 2012,
CCUSA had no notice and no reason to believe that any person or entity had been paid by
Capital for the work CCUSA performed for the Fesler's pursuant to the Agreement and
the Contract.
58. If Capital paid Clear Choice, as set forth in Exhibit "F," rather than CCUSA, Clear
Choice has not distributed this money to CCUSA.
59. Any monies paid by Capital to Cleaz Choice regarding the work performed and materials
provided by CCUSA for the Feslers, pursuant to the Agreement and the Contract, is the
property of CCUSA.
60. If Clear Choice was paid this money by Capital, by failing to distribute these funds to
CCUSA Cleaz Choice has interfered with CCUSA's property right in the money, without
the consent of CCUSA and without legal justification.
61. If Cleaz Choice was paid this money by Capital, it is believed and therefore averred that
Cleaz Choice intentionally failed to distribute the funds to CCUSA, with full knowledge
that the money belonged to CCUSA rather than Cleaz Choice.
WHEREFORE, CCUSA demands judgment against Clear Choice, in an amount of
$8948.16, plus interest from the time of completion of the window installation, costs of suit, and
other relief this Honorable Court deems just and proper.
Respectfully Submitted,
Date: ~ ~ 1 ~ ~ ~~? ~~ Owens Barcavage & McInroy, LLC
Bart W. Ho es, squire
PA ID No.: 85071
2595 Interstate Drive
Harrisburg, PA 17110
717-909-2500
717-909-2504 (fax)
(remainder of page intentionally left blank)
EXHIBIT "A"
Tax Parcel 40-22-0489-011 ~~~~~ `~
a~
F~~ s1mR1= DNa -
Corte
t ~ ~~ ~ 27th
~ ~~~Li~~ .~x~E #~8 Hof
I~ June in the year of our Lord two thousand S ix ( 2 0 0 6 )
~ttfae~n
John F. Quinn and Cheri L. Quinn, husband and wife AND Matthew S.
Baker and Erin F. Baker, husband and wife
(heninofter called the Grantor(s), of the one part, and
Douglas P. Fesler and Melinda K. Martin
(htreinafltr called the Grantee(s), of the other part;
~PasB~~ That the said Grantor(s) for and in consideration of the sutrt of
One hundred seventy-five thousand and 00/100 ($175,000.00) Dollars
lawful money of the Unutd Swtes of America, unto them well and truly paid by the said Grantee(s), at and
before the seating and delivaery of these presents, the receipt whereof is hereby acibiowkdged, have granted,
bargained, sold, aliened, enfeo,~ed, released and eonfnmed, and by these presents do grant, bargain, sell,
alien. et¢io,~', release artd confrrnt unto tlu said Grantee(s) their Heirs and Assigns, as j oint
tenants with the right of survivorship and not as tenants in common,
ALL~THOSE CERTAIN tracts of land, with the improvements thereon
erected, situate in South Middleton Township, Cumberland County,
Pennsylvania, bounded and described as follows:
BEING Lots No. 43 and 44 of Block D, of the Plan of Lots known as
Carlisle Manor Extension as recorded in the Office of the Recorder
of Deeds for Cumberland County in Plan Book No. 3, Page 99; each
lot having a frontage of 50 feet on Allen Street and extending 150
feet in depth; and being subject to certain building and use
restrictions.
SUBJECT, HOWEVER, to such easements, restrictions and conditions as
may apply to the afore-described tract of land, recorded or
unrecorded.
BEING THE SAME PREMISES which John F. Quinn and Cheri L. Quinn, ~~
husband and wife, by their deed dated September 25, 2003 and ~-
recorded October 3, 2003 in the Cumberland County Office of theme ~'
Recorder of Deeds in Deed Book 259, Page 3541 granted and cony~e d
to John F. Quinn and Cheri L. Quinn, husband and wife, as tenan`t~
3
m
cn
w
~~ xis PA~271s
by the entireties of a one-half interest as to each other and
Matthew S. Baker and Erin F. Baker, husband and wife, as tenants by
the entireties of a one-half interest as to each other and each of
the aforesaid couples holding their respective one-half interests
as joint tenants with right of survivorship as to the other couple.
~__ ~ _
Cueberiand Corntr Rtcorde~ of Deeds
Instrureat Filial
Receirti 615792
Iashi 2iQ6-424335 7/10/Z00b 08:Sg:~
Reearks: CHfitTER 9ETTI.E
FEVER
GEED 14.50
OEEO - MIIT ~
GEED - RTT STATE 1754.00
9011TH 1{IOOIf TDN B7'5.00
9fRl1H iR66lETDN 875.00
~ " ~ 11.54
J.C.S. / A.T.J. 10.00
CO Ii~I~YQQlT FilO 2.04
REC. IlPAV1fT iti® 3.00
~~ ~~ 1916.04
Checki 5196 x.50
Chetki 3499 (1,730.00
Checlc6 . SO CASH (875.00
To#al Received....... 13541.50
booK 275 ~~E2717.
~II~E#~8r with all and singular the buildings and
Improvements, ways, streets, alleys, driveways, passages, waters, water-courses, rights, liberties, privileges,
hertditaments and appurtenances, whatsoever unto the hereby granted premises belonging, or in any wise
appertaining, and the reversions and remainders, rents, issues and profits thereof,- and all the estate, right,
title, interest, property, claim and demand wkatsotver, of rke said Grantor(s), as well at law as in equity, or
otherwise howsoever, of, in, and to the same and every part thereof.
~Q I~lC1tE Atli #II ~QYI~r the said lot or piece of ground described
htreditaments
and premises hereby granted, or mentioned and intended so to be, with the appurtenances, unto eke said
Grantee(s), their Heirs and Assigns, to and for the only proper use and bekoof of the said
Grantee(s), their Heirs and Assigns forever, as joint tenants
~1T[~k the said Grantors}, for themselves and their
Heirs, Executors, and Administrators do by these presents, covenant, grant, promise and agree, to
and with the said Grantee(s), their Heirs and Assigns, that tkt said Grantor(s) and their
Heirs, all and singular the hereditaments and premises herein described and granted, or mentioned and
intended so to be, with the appurtenances, unto the said Grantee(s), their Neirs and Assigns,
against the saed Grantor(s) and their Heirs, and against al! and every other Person and Persons
whomsoever lawfully claiming or to claim the same or any part thereof, by, from or under him, her, it, or
any of them, shall and will
BY THESE PRESENTS SPECIALLY WARRANT and forever DEFEND.
~it ~ftttttt ~~ttttl~, the said parties of the first part to these presents have hereunto
set their hand(s) and seal(s). Dated the day and year first above written.
o !~ ~~itttt~
IN THE PRESENCE OF US: ~
W 1 t.Ytxq.O /
n_ C:~ u
~~ x~,t..~a eri o~
eoox 275 rA~2718 ~
~ se$i
STATE OF ~,41?St d +G~
COUNTY OF '~
On this, the '/~~'~'~ day of June, 2006, before me, the undersigned officer,
a Notary Public, personally appeared Matthew S. Baker and Erin F. Baker, known
to me (or satisfactorily proven) to be the persons whose names apge~rs,~~,;,~fe,;;
within instrument and acknowledged that they executed the same fa~'~Ki4~purp4slS•
herein contained . . - .~, ~ ~ ~ ,
In witness whereof I hereunto set my hand and official seal. -- •' ~~'` ~ ~..,
,+- _
~'. ~. ,
;`
Notary -~ ..... •_~;=--er
Public •,':,:~ ....,
See next page for additional acknowledgement
t Certify this t~ be recorded
In Cumberland Co~mly PA
;.
,5
Recot+d~e~ Of Deeds
eooK 2?5 PA~Z?i9
•STATB~ OF NEW rtERICO
COUNTY OF ROOSEVELT
On this, the `~ 27th
Public for New Mexico
) ss:
day of June , 2 0 0 6
personally appeared John F. Quinn and Cheri L. Quinn
before me, a Notary
the undersigned Officer,
known to me (satisfactorily proven) to be the person(s) whose name(s) is (are) subscri{~yyti~tv•tl~~within
instrument, and ac~Enowlcdged that they executed the sane for the purposes tl~e~2•t,R,'is}ttt+~ired~,` ~,
IN WITNESS WHEREOF, I hereunto set my hand and o,~"teial seal. `~" '•
- o..- ¢ -
'/~ • {
~'~~~.
John F. Quinn and
Cheri L. Quinn AND Matthew S. Baker
and Erin F. Baker
Douglas P . Fesler and
Melinda K. Martin
File No. 995320
cr-r~r~ sEriz~K~rr s~vrc~.s, uc
4705 First Triridle Road
Mechwricsburg, Pennlylwrnia 17050
PREMISES: 311 Allen Street
South Middleton Township
Cumberland County
The address of the above-named Grantee
is 311 L~7 en Stree
a~K 2?5 P~E~%~~'20 Carlfels, PA 17013
~~ . ~a,, w' , '~ beJwlf o ehe Gr e
Exhibit A
ALL THAT CERTAIN tracts of land, with the improvements thereon erected, situate in
South Middleton Township, Cumberland County, Pennsylvania, bounded and described
as follows:
BEING Lots No. 43 and 44 of Block D, of the Plan of Lots known as Carlisle Manar
Extension as recorded in the Office of the Recorder of Deeds for Cumberland County in
Plan Book No. 3, Page 99; each lot having a frontage of 50 feet on Allen Street and
extending 150 feet in depth; and being subject to certain building and use restrictions.
SUBJECT, HOWEVER to such easements, restrictions and conditions as may apply to
the afore-described tract of land, recorded or unrecorded.
EXIiIBIT "B"
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j' Yy We ~< ' y i
i:1 `~ ~Y ~ ~
w~' ~.
$!; ~ro!ar+r wIt .not ~;~
d MkA elNitlrlo :.Qr ~ , ~
nM11~yr••;ou+R ' ~~t
tiaeieda bakbi '''
~~C`~p
~.teo~~~,>11w+w r rrr+de ~; ~eiiiMnv if+iil , .
noc wp~iw,s.rw, sal, vaMk::ot vuiu~~iy:flilhb etk:
etWlyks In s1ry atlxr malxler.
Tab 3~P.~e l7
CCUSA INSTRUCTIONS FOR CAPITAL ONE FINANCING PROGRAM
~~
v Qetermine total project cost with
customer with sufl"icient margin
~ Customer calls Capital one at their toll free number 1-866-
~~
715-8845 1 ~U
~~~~~ ~
Customer references Clear Choice \ ~ ~~,
USA to et rams available id # 197974) ` ~ ~\
Capital One takes credit application
over the phone and gives a go/no go
within 8-10 minutes ~~ ,
\' 1
Once loan approval is given, customer signs the Clear ~N //~}
Choice PA ~11 /~~JU
I ne faxes loan documents to Clear Choice corporate 1/ V
Capita 0 \ /,'~
office ^~(/ ~~
\I a 0,
Clear Choice corporate office faxes loan documents to a_ 1 ~,•%
licensee \~
Licensee has customer sign loan authorization farm and 1 ~ '
either keeps form on file or faxes to Capital One ~~
Licensee submits order to corporate and references that it is I,
Capital One job on the PA using the "C1" notation at end of ~` j„~~
PO number ~~
~a ~ i`, ~
Clear Choice corporate office will delay ACH payment from '~~j Q
licensee until job is complete ~~ `~,\
..~1< <`-
`V
Licensee receives & installs ~ ~`
windows ~^~ n ,~,J~,
Upon install, customer provides '" ~~ 1~
executed certificate of completion to the licensee
Licensee faxes certificate of completion to Capital
One
CCUSA Corporate receives notice of disbursement from
Capital One. CCUSA Corporate then credits the \,
disbursement amount minus licensee cost of \~``~ \
windowslproduct including any fees into licensee bank 1\~\ ~ . C
v 5l^ ~ '^\1~ 1
~`
~, , , ~J
.~~ 1 ~ " ~
EXHIBIT "C"
01/15/2869 11:53 7175244681 CLEAR CHOICE YORK PAGE 01/02
e/iSl2006 iS:18:52 A!! CsnitslOna yo~~4z+~-eavu re;e o
~t/J~/G d r= Tai'/S l,S /LJ f~ ~ti'n Gt/~ ~TI~/~i
~~.~
~+r~r~ of co~~rtox_
~~
~v
w
9YG1~[ AND GIVE TffiS C1~t?IFICATE TO TBL` BQi~E ~EIROV~1-d6NT BII1~N>PiBS WHEN 'C8~
$O11Q IMPBOVSM6NT 1~tO.I6CT BAS 1SB~Sai t:OMtW6~'8D,
Nsma u~f Customer: Meliods Feelar
Addnecs~ 311 Alba St
City, Ststo aad Zip Cade: Cattisle, PA 17013
(1} Any madoriale required to eoaepleta iht imptovomeata love banflnnishod aad ia:talitd by the Ha~ne
Improvejaoat Buaiaoes; and
(Z) The improvpmoats w~ oompiatod to my aati:factioa aad in aeeoedmaa with my ,gSeeement with tha
Nana of Home lmprovemeat $usit>+~ss: Chat tlloice USA
Address: 2030 Powaes Ferry Road
City, States aad Zip Cade: Atlanta, GA 30339
r.
(i } Aay materials ragtw+ad to complete tket improvameats have baoa furoiel-•d attd imtdled by tiie Horne
leapravam°M 9ut:Aaes;
(2y Tire impmvame~ were consplated to the Customer's satiafidion is uxatdaaoe with the A~eammt of
the Homo Impanvecteat Bnalnw with tha Cua4waer; mnd
(3} Zbe Cmtontor aiSoed thsa Cattifi~te of Completion ~ completion of tbs iatpabvemeab.
(SIGNATURE OF HUSIl~lESS OWNER OA AUTHORIZED REPRESENTA }
'MB I~OMi ultPlbOYttlMt~ tMl~INt~ ii~OuLt! l~11X 'MR OOMPt.~D aRTI(e1CA7l~ TO CANRAt, ONE HOME
~iPRdllEMi1CT N1AMCls AT:1•Nbe131170.
LL GOT~~.j' ~~ S~~ J
~ ~,~~ l~/R/~rir~l~i ~
~-
01/~15l2009 11:53 7175244681 CLEAR CHOICE YORK PAGE 02/02
•~-~<<~~~ ~•_~...~ r~•, La~itiAiune y9@-424-6400 Pags 2
,per Conttartur IU: 19i'~'a
1~ 4mount SS.irY1.t)0
V Dzf~rrad intere4t Peri~xl: t? awnths;' statements
Zertn: ~ mcmths
Rate: 19.99`•;
~,-~'"""
Y
Capital One Home Improvement Finance
Financing Authorization Form __
._.__ -
i ;tcknttw~l~i~*~ that I ha:•e ri:~i`'c<d nc~tic~ r~~w'~ling, and h..(~e l~u ttcpro~°td fc~r ;-n ;-niuunt fut~cc•~c' or
~,7c~o.cx~ with Capital Ork ti.A• t.~p~~n receipt ;•f a corupietul and sign(xl ('er:iftcatC cif Cantplctia~, 1
sutllorv.~ cite arneun~ 6statxed of iEhS. CI tw; paid t~~ y;t~nr Chei~1;;5A at A~lnnca. ~~~1. ! agr~• i<'
r.raym~:nr ~r~zn of 8~ nx~nths with iutcrr.5t drfGrra(? f~,e ttx first ~ n~onth~.
I ;y~l-'nc~u°tcxirt chat tt1i5 loan t-et•~m(:;1t Wilt axl~ir~ i# ("a(~ita! Ono I~(-;t~a In~ro~'crtent )rlnAtll'~ dor.5 ru•c
I~C211`~ ~ CY)R)F-~ClC(~ 3t1(l 31vYlk~ C'.~a'tl[Ir,;rllc of t:'utti~~leciua by U ~/1a!?t}09.
That 1 hate r(~rrivrd and r(•tainrd a cnpy of the Yrira~y f)isclururc.
'fhat t have rcc•~ived, mad and kept a ~•~~py of page 't artd 2 a# my Premissnry Nate ind Uis~:loyur~.
c agrCC to repay thr. amount #irsanczd under the trrn(s of ntv Pcomissucy Natr.
t'c•ctrw'v t~a~r: .L4,~3 ~rZ....._ Sign hkrr _ ~'C~.~!'~-.. _ _.
-~~ . tetincl~ l c5ter
*ASIDL~47$5~9*
~OpS'r
Vmeial. (:±e Chit)'
EXI~BIT "D"
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVANIA
CP-21-CR-2719-2009 CRIMINAL ~`
v
:CHARGE: 1) THEFT BY DECEPTION
2)FORGERY J
CHRISTOPHER D. PRINCE
AFFIANT: TPR. JOSEPH P. MANNING
NOLLE PROS
The Petition of Daniel J. Sodus, Esquire, Senior Assistant District Attorney for the affiant
in the above case, respectfully represents that he does not desire to further prosecute the above
case, and therefore prays Your Honorable Court to grant leave to the District Attorney to enter a
Nolle Prosequi in the above case.
The Petitioner requests that the Nolle Prosequi be entered for the following reason:
Although the evidence certainly suggests that a forgery occurred, at this time the
Commonwealth's evidence is not sufficient to prove beyond a reasonable doubt who
committed this crime.
Costs will be paid by the County. } ~...^,
And he will ever pray, etc.
;' ~Z,
for the Affiant
-, _
F~ ~ ~~ -..
~`. - - . -
f-
~,
And now, to wit: ~ _ ~ , 2010 permission is hereby granted to the District
Attorney to writer a-Nolte Proseq i in the above case.
_ By the Gourt,
J.
And now, to wit: Mu,it~ + ~ , 201 ~a Nolte Prosequi is hereby entered in the
above case.
District Attorney
~1
~~
~r ~l~
EXHIBIT ~~E"
,.--
~~'~
i'0 Box 30273
ialt lake City, UT 84130-0273
December 9, 2009 ~/
Melinda Fester ~ l ~~'~TS ~~~~=- ~N
311 Allen Street L..L`Q'/J ~ ~ ~'6%~E SUS~~iv~D ~
Carlisle, PA 17013
~l~~J~~~ ~r93,~Y
Account: 0055000193704 -~~ ( Z' ~~ ~ ~~ .43 ~~/
Balance: $ 8120.58 T
Melinda
My name is Lisa, I have been assigned to your case and I will personally work with you throughout
the entire process. Thank you for working with us to investigate the above-referenced account,
which was opened in your name.
If someone applies for and receives a Capital One Installment Loan in your name without your knowledge,
it is not only a huge inconvenience but it is also a very serious issue. We are working diligently to take care
of this issue as quickly as possible and to ensure that you have no liability for any fraudulent balance.
While everything is still fresh in your mind, please take a few minutes to complete the enclosed Identity
Fraud Information Form. We cannot process your fraud claim until you return it to us.
Please fax the completed Identity Fraud Information Form to 804-934-2915 within 3 business days
from receipt of this letter. Or drop the form in the mail to the following address:
Capital One, N.A.
PO Box 30273
Salt Lake City, UT 84130-0273
The Identity Fraud Information Form is a forma! written statement verifying your fraud claim. It's not only
important that you sign it, but you must also either:
a) Send us a clear copy of two forms of identification. (Social Security card and your state
driver's license or government-issued photo ID) with the signed forms.
Or
b) Have the form notarized. (If you choose to have it notarized, you must sign the form in the
presence of a notary public.)
If you have any questions, you may contact me via phone 804-968-3635. Thanks again for your patience
and assistance as we work together to resolve this matter.
Sincerely, ~``
Lisa K. %I ~ LL?L+- ' ' `
Custo~fter Fraud Protection
~`?009 Capital One N.A. Capital One is a federally registered service mark..~,ll rights reserved.
t,~
by
:'~,.
~r'
.*~#.
_j=~~} Identity Fraud Information Form
For Account- 00550001193704 December 9, 2009
Instructions: (Please read through these steps carefully)
1. Please fill out this form completely.
2. Make sure you have signed all three sections where indicated below.
3. Either have this form notarized OR send in a clear copy of your government-issued
photo ID AND a copy of your Social Security card.
4. Fax to attn: or mail this form to us within three business days from receipt of this letter.
(Faxing the form is preferred.)
A. nny correct information is: (please print clearly)
My full legal name is:
First• Middle' Last• -yam, ~~. ~.;.: ~ ~~- ~' -
nthpr names f have used:
Street' Apt' ~ j j ~~ i_ c N 5 r
City ~;~~~ L< <t t.~~ State: Zip Code: ~}~ 1 !~ i -~
Social Security Number: i~;~ ~ ~'., =~ --;~-' Date of Birth: ;, ; (. ~ r , -
Cell Phone' Day Phone: ?; ! ~y~ ~ ~.~;~ ' 1
one:
Si nature: j=~ ~=-~= =~%2 ~ .-~ ~
B. For the record, regarding Capital One account
(Check a(i that apply.)
~ E did not apply for or request this account.
.. I did not receive a Capital One Installment Loan with the account number fisted
above.
• !did not receive any money, merchandise or services in association with this
account. This includes any money, merchandise or services I may have received
from a third party. , .,~;,,,.~ ~'>j ~ ~ ~ :xr:, "_ ~.;;~ :~~ - ..u ~~` ~- -~
• I have not authorized or directed any individual to seek credit in my name.
Print your name' ll;;r ~ •v ~ ~ ~ ' -~~ -
'f ~m not accepting responsibility for payment on this account. ;~- ; ~ : ~ + 1 ~L~c
-~ ~:'
nature' Date ~ i", ~ .:::~~ -"-c ^ ~~-~
~-.--
:a%
3s
;e
F
,r'
ij'
~~
l
}~F~~~~ Identity Fraud Information Form Continued)
~~~
C. Suspect Information
Do you have any knowledge of the person(s) who may have applied for and used
the account fraudulently?
~~ No foc.arad used the
e Yes, {have reason to believe that the following individual(s) d-
Capital One account indicated above. Please fill out the information below to the best
of your knowledge. If you have reason to believe that additional parties are responsible,
please attach the same information for those individuals to this document on
additional pages.
.._ .~,._.. .G ryb ~ ~'t
~= ~ r~L c l~,f l~ r. .
a' ~' ~.
~. , - ~ ~.
rosecute Yes. , 'ti ^'` '~ ,.] Y -~ ~ ~ ,- -'+ : i tJ
Are you willing to P Y ~D ~~ ~ ~ r i 'r {~ _ f . ~ - - `~ ~ y _
/ _ /•'.
Police Report Fled r Na( ,,. Yes,Case* s ~'~-~~ ` _ ~ ,~
p, Signed Statement
gy signing below I certify that to the best of my knowledge and belief, al{ of the
correct,
information on and attached faith! I lalso understanld that th~rldent tysFraud Info mhta Lion
complete, and made in good
Form may be provided to federal, state, and local law enforcement agencies for s
within their jurisdiction as they deem appropriate.
_ - , -, -,
~- Date / / ~- ~- -
~,, - ~; ,
Signature: ~ -., _ J~ ~~--
Ivuia~ ~~ ..w...._. ..
Commission Ex iration: /~ f ~~ t of our Social Security card AND your state driver's license
(Notary information rtquired only if a clear copy Y
or government-issued photo 10 is not sent with this form.)
Please include or attach any additional information you think ~rrould be beneficial to our
~TM olF ~~nv~N~~
investigation.
~ ~ ' ~ ~COI{tV~Y
~CA~ ~~~ N~M~p 26, 2012
a09l'iR;iSi One ~..\. CiFaal Onz is a ?zdz*~;;} r'Q-'stzrz3 sz^:,_° „vk. ~Vt -i_t;ts its°r. ed.
EXHIBIT "F"
s. ~-
~a....
l
1 -~' ~ ~' :~ `1
~ 1 ~
~ ~"~ ' ~
u ~ ~ ~~ Q Cap~tar~Chu
~\ ~ O f Harne Improvement Finance
~,
\l
#p001SZ1R~6#
Melinda Fesler
311 Allen St
Carlisle PA 17013-3102
h~d11~~~I11~~~~~JL~I1~~dh~~JIN~~~~~ld~~~ll~~dllh~~l
Dear Melinda,
Welcome to Capital One® Home Improvement Finances"'
,~~
J~' ' ~
~~' ~
~~~~ -
~l ~' ~ ~~'~ ~~
1 ~~ ~~ ~~~
8
We've received your signed to Celoan andthave sentCthetfull loan proceedsoto your conC goal
One Home Improvement Finan
In approximately three weeks, you'll receive your first monthly statement from Capital One, ti.A.
_.~~
ff you have any questions, don't hesitate to call us t 1-866-715-885. ~
We're glad we were able to help you get the job done you wanted. All of us at Capial One Home
Improvement Finance look forward to providing you with exemplary service.
Sincerely,
Customer Service Department
Capital One Home Improvement Finance
VERIFICATION
I, Bart W. Holmes, Esquire, counsel for Plaintiff CCUSA, certify under penalty of 18 Pa.C.S. §
4904, related to Unsworn Falsification to Authorities, that the averments of fact in the foregoing
Complaint are true and correct based upon information provided to me by Christopher D. Prince, an
authorized representative of my CCUSUA, or upon my personal investigation, and are made to the best of
my client's knowledge, information or belief; and to the extent any averment is inconsistent in fact, after
reasonable investigation to ascertain which of the inconsistent averments are true, undersigned counsel
and CCUSA have been unable to ascertain which is true, but have knowledge or information sufficient to
form a belief that one of them is true.
Date: (~ (~ J aC (
5
Bart W. Hol es, E uire