HomeMy WebLinkAbout14-4042 Pa.R.C.P.2962
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
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MANUFACTURERS AND TRADERS
TRUST COMPANY,
One M&T Plaza
Buffalo, New York 14203 CIVIL DIVISION
* Case No.:
Plaintiff,
*
V. COMPLAINT FOR CONFESSION
* OF JUDGMENT OF MONEY
PHILIP KATZ,
154 Erford Road, Apt. 412
Camp Hill, Pennsylvania 17011
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Defendant.
*
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CONFESSION OF JUDGMENT
Pursuant to the authority contained in the warrant of attorney, the original or a copy of
which is attached to the Complaint filed in this action, I appear for the Defendant, Philip Katz,
and confess judgment in favor of the Plaintiff and against the Defendant as of July 2, 2014 as
follows:
Principal $ 24,949.48
Interest through 7/2/2014 $ 540.85
Per Diem $4.10
Late Charges $ 20.00
Attorneys' Fees $ 5,098.07
Total $ 30,608.40
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P* 3as3aa
yoke Ma,I eel
Shaan S. Chima, Esquire
PA Bar No. 312429
GEBHARDT & SMITH LLP
One South Street, Suite 2200
Baltimore, Maryland 21202
(410) 385-5109
Attorneys for the Defendant
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PE'.11NSSYLVI--0iA
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
MANUFACTURERS AND TRADERS
TRUST COMPANY,
One M&T Plaza
Buffalo,New York 14203 CIVIL DIVISION
* Case No.: Q��- 1vl�T�"n't
Plaintiff,
*
V. COMPLAINT FOR CONFESSION
* OF JUDGMENT OF MONEY
PHILIP KATZ,
154 Erford Road, Apt. 412
Camp Hill, Pennsylvania 17011
*
Defendant.
*
* * * * * * * * * * * * * *
COMPLAINT FOR CONFESSION
OF JUDGMENT OF MONEY
1. The Plaintiff and the last known address thereof is:
Manufacturers and Traders Trust Company
One M&T Plaza
Buffalo,New York 14203
2. The Defendant and last known address is:
Philip Katz
154 Erford Road, Apt. 412
Camp Hill, Pennsylvania 17011
3. This Court has in personam jurisdiction over the Defendant pursuant to 42 Pa.C.S.A.
§ 5301 in that the Defendant resides in the Commonwealth of Pennsylvania.
COUNT
(Philip Katz)
4. The Defendant,Philip Katz("Defendant")is presently indebted to Plaintiff pursuant
to a Loan evidenced by a Business Access Line of Credit Note, dated March 4,2013,executed and
delivered by Cake Break, Inc. ("Borrower") to the order of Plaintiff ("Note"). The Defendant
unconditionally guaranteed payment of the obligations owed to the Plaintiff by the Borrower under
the Note pursuant to the execution by the Defendant of an Unlimited Guaranty,dated March 4,2013,
in favor of the Plaintiff("Guaranty"). The original instruments evidencing the obligation on which
the judgment is herein confessed or photostatic copies of like reproductions showing the signature of
the Borrower and the Defendant, which are true and accurate reproductions of the originals, are
attached hereto collectively as Exhibit"A" and are incorporated herein by reference.
5. The Note and Guaranty were payable to the Plaintiff by the Borrower and Defendant
upon the Plaintiff s demand.
6. The Plaintiff,in accordance with the terms and conditions of the Note and Guaranty,
sent a letter dated April 8,2014 to the Defendant demanding immediate payment of all indebtedness
owed under the Note and the Guaranty from the Defendant. A true and accurate copy of the demand
letter is attached hereto as Exhibit"B" and is incorporated by reference herein.
7. Despite such demand, the Defendant has failed to pay all indebtedness owed to
Plaintiff as required under the Note and the Guaranty.
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8. As a result, the Defendant defaulted under the terms and conditions of the Note and
Guaranty by failing to pay Plaintiff upon the Plaintiff's demand.
9. There has been no assignment or transfer of the Note or Guaranty.
10. Pursuant to Rule 2952 of the Pennsylvania Rules of Civil Procedure, the judgment
entered in connection with this Complaint for Confession of Judgment for Money(the"Complaint")
against the Defendant, Philip Katz, set forth herein has not been entered against a natural person in
connection with a consumer credit transaction.
11. Judgment has not been entered on the Note or Guaranty in any other jurisdiction.
12. The itemization of the amounts owed under the Note and Guaranty as of July 2,2014
is as follows:
Principal $ 24,949.48
Interest through 7/2/2014 $ 540.85
Per Diem $4.10
Late Charges $ 20.00
Attorneys' Fees $ 5,098.07
Total $ 30,608.40
13. The Note and Guaranty with the Confession of Judgment and Warrant of Attorney
were executed on March 4, 2013.
14. Under the Confession of Judgment set forth in the Guaranty, the Defendant
empowered any attorney of any court of record to appear for the Defendant and, with or without
complaint filed, confess judgment, or a series of judgments, against the Defendant in favor of the
Plaintiff or any holder thereof for all amounts due thereunder, together with costs of suit and an
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attorney's commission of twenty percent(20%)of such amounts as a reasonable attorney's fee,and
for doing so the Guaranty or a copy verified by affidavit shall be a sufficient warrant.
WHEREFORE, the Plaintiff is authorized by the warrant of attorney and confession of
judgment clause contained in the Guaranty to confess judgment against the Defendant,Philip Katz,
and demands and requests that judgment be entered against the Defendant, Philip Katz, in the total
amount of$30,608.40,plus interest after July 2,2014 and brings the attached Note and Guaranty into
Court to recover the said sum.
Date: July 9, 2014 `
Shaan S. Chima, Esquire
P.A. Bar No. 312429
GEBHARDT & SMITH LLP
One South Street, Suite 2200
Baltimore, Maryland 21202
(410) 752-5830
Counsel for Manufacturers and Traders Trust
Company
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VERIFICATION
Understanding that false statements made in this Verification are subject to the penalties of
18 Pa. C.S.A. § 4904 relating to unsworn falsification of authorities, I verify that I am an Assistant
Vice President of Manufacturers and Traders Trust Company, the Plaintiff in the above-captioned
matter,and that I am authorized to make this Verification on the Plaintiff's behalf and I verify that all
of the statements and averments made in the foregoing Complaint are true and correct upon the
Plaintiff's personal knowledge, information or belief.
zm
Je fer L. ainey, ssistant V ce President
Manufacturers and Traders Trust Company
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EXHIBIT A
ChiEBiLu
BUSINESS ACCESS LINE OF CREDIT NOTE
!i]d .2093
$26,000.00
For value received,the underolgned Cake Break,Inc.,b Delaware corporation,with an address of 7 South First Street,
Rehoboth Batch,Delaware 19971(01e"Bomom*.promise&to pay to the older of M&T Bank,a Now York banidny corporation whh
an address of One M&T Plaza(Attn:Office of General Cour=D.Buffalo,New York 14209(together with Its guccassom and assigns,
the"Banki,ON DEMAND,the principal amount of Twenty-Five Thousand Dollars and Zero Cents($26,000.00)or,if leas,such
amount as may be the aggregate unpaid principal amount of hal bene or advances made by the Bank to the Borrower pureuent hereto,
together vft interest from Ore date hereof on the tmps)d prtrhdpai balance from time to time outstanding until pati In full. The
aggregate pdacipal balance outstanding shall boar interest thereon a1 the Appricable Rete(es defined beivr0.
As used in this Note,each oaphafined form shell have the meaning specified in the Note or as B appears to initial cap&ataetion.
Additionally,the 1011mOrV terms shall have the indicated maanbnga:
•"Awitini'mm Ole Business Amass tmtlne of -estabilshsd in 6 this Nota.
Account Balenco"means the toted of the outstanding prindpal balance.Finance Charges,to other apPllcxtble charges and
fees,and any other amounts potted to end owing respecting the Account and/or evidenced by this Note.
"Applicable Rats'means the interest rate epPfwble to the ou%tanding balance on all Loans. Ercoept to the extent otherwise
provided herein,the Applicable Rate shall be the Bea&Rate In effect from time to time.
"Auftftd Person'shah mean,ImOvidualty.Philip Katr,President,Mention of The Auihmrted Parson's name is for reference
purposes mdy endths Hank may rely on a persons title toasoartain whether someone Is on Authorized Person.
"Paee Rainy'means 276 peroerttage points obova the Prins Rata(as defined below#. To the extant the Base Rate is In effect,
daily changes in the Prime Rate,H any,$trew not alter the Base Rote,until the first day or the Bang Period bWkmbng in the month
following arty such changes In the Prima Rate,et which*no the Base Rate shall alQuat based on the Prime Rate in effect on the fist
day of such nwAh,and remain as such for the remainder of that billing period.
THE BASE RATE APPLICABLE TO YOUR ACCOUNT IS SUBJECT TO CHANGE AT ANY TIME AND FROM TIME 7O
TIME,wiTHOUT PRIOR NOTICE,IN THE SOLE DISCRETION OF THE BANK,BASED ON,AMONG OTHER THINGS,THE BANK'S
REVIEW OF YOUR FINANCIAL CONDITION AND THAT OF ANY GUARANTOR,INCLUpING,WITHOUT LIMITATION,A REVIEW I
OF INDMDVAL CREDIT REPORTS. ANY CHANGE IN THE BASE RATE WILL APPLY IMMEDIATELY TO ANY EKISTiNO
-ACCOUNT 9AtANCE AND ANY FUTURE LOANS,AND MAY RESULT IN AN INCREASE IN YOUR MONTHLY FINANCE '
CHARGES,
'BmrrS Period'means any period of aPproh6matety a month at the end of which the Bank co n"s the amount to be billed
respeottng th0 Account.
"Credit UmIr moans the maximum principal amount available under the Account,which shall be the lace amount of this Note,
subject to adjustment by the Bank In its We discretion,without prim nogm to the Borrower, i
"Snon oo Chrenges"mean accrued interest charges, as determined for each day by multiplying the outstanding principal
balance an aP Loom at the end of that day,by the Periodlo Rate.
'Lin@ of Credit Chad&"means any direct loan check that is issued by the Bank for use with the Account.
'1t rowed Checking AcwunY means any checidng account maintained Witt the Bank that the Borrower has requested(and the
Beek has approved)to be linked to the Account for wordreit protection and automatic debit deducom of payments.
'Loan'mom any amount of credit or advance obtained in any manner contemplated herein and posted to and owing with
respect to the Account.
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'Pedudic Retar'means tfw Apptiwbte Rete in effect on tae day of calculation,divided by M.
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`Ptlme Rate°means the rate per annum amounted by the Bank from time to time as na prime rate of interest.
Absent demand for payment In 1411,the Borrower shell pay to the Sank,monody In arrears for each Miring Period,on or before �
11he due date grown on any statement for the Amount,a4 ecxnred and unpaid Finarlas Charges,all othar appliimbte d Muss and tees
referarhoed herein,all casts and expenses Irkourted by the Sank In oorehsodon with the Account,plus any amounts tided on any prior
statement faiths Account to the Word such amounts remain unpaid.
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Finance Chargee will begin to accrue on any Loan amount on the day such Loan is posted to the Account The Finale
Charge for the Billing Period YM be computed by adding up the Finance Chargee for all the days In the VMS Pet►od. The Borrawar
agrees to pay on demand an applicable rasa and charges set forth to thle Note and as may be charged to the Account from time to time
Atthe SaWseota&MIlon,hrolutbngwithoutlimitation each of the follovAng:
a.Annual Fats. The Borrower shall pay,upon the opening of the Account and on or about each anniversary diets of Mb Note,
a non.refundsltle Annual Foe,vvhlob vAll be charged and posted directly ttl the Account The amount of 1 he Annual Feats delerrnlned
by the lope of Linked Checking Account maintained by the Borrower at the time This Account Is crested.The charges areas follows-
No
ollows:No Linked Checking Amount$800
M&T Free Business Checking WO
M&TCorpornte Checking,M&T Commercial Checking:$0
M&TMedcal Senders Bundle a M&T Professlonal Services Bundle:$0 i
O terType of Linked Chaotdng Aom $126
The Borrower mcMwMwtad ds and understands that this Annual Fee wi8 be charged each you as tong as the A000unt remains
open,whether or not any oL at(a meds under— tt1—e otat�and that paymant of thio Annual Fee does not enGpe.the Bom mer to any
asunnoes that the Aocountwill remain open,nor otherwise ager or compromise the°on demand"nature of this credit fecllity or the
Benks fights to suspend or canal this Account at any time in accordance with the terms hereof. Any welver of the Annuel Fea to any
particular year.In the Banks sole diaci ellm,shall not prejudice or oompromise the Bankb rot to charge and/or reinstate such Annual
Fee at any time,v6thoui notice to Borrower.
b.Cverthe•Limit Charges. tithe Account Balance exceeds the Credit Limit at any time dudng any Billing Pedod,the Borrower
shall pay,In addition to any other amounts.dua,an ovorthe-Ilmh charge of g20 Por such Milhkg Period,whloh will be charged and
posted directly to thaAccount
a Charges for Unps!d line of Cradft Checks, For each Line of Credit Chock that the Bank does not pay beams fie Borrower
Is(or would be,0 such Line of Credit Chsok were paid)In violation of any provision of this Note,the Borrower shall pay,in addition to
any other amounts due,a charge of$20 for that Line of Credit Check,which will be charged and posted directly to the Account, j
d.Malonored Cluck Charges. 1,f the Bohtw ar uses a check to pay any amount awing with mailed to the Amourd and rho i
cheok is not honored by the inatltutton on whloh h is drawn,the Borrowsr atren ppay,in eddtikm to arty other amounts duo,a dishonored
check charge not in excess of the anrourd permitted by sppilcobte low.which wig be charged and posted directly to the Account
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a.Ov ftfl Advance Charges. To the extent the Account Is used as an overdreft rine of credit for a CheokbV Account,the �
Oatmeal abe9 pay,to addttlon to any other emu*due,a sa oa charge of 51.00 fait each Loan made toT purpese of prevanting an
ovotdraft an such Checking Account,which will be charged and posted directly to the Account
t Stop Payment Charges. The Borrower shall pay a stopni charge of SM for each Stop Paymard Cyder(as defined
below)that the Beek processes at your request,whlch will tv charge=end dlreolly to the Account
Except to the extent prohibited by appi'roable taw,the Bank,from time to time in Its we discretion,may(i)change the amount
and method of calculation of arty fee or charge noted above,or OU atalm other Changes to the terms of this Not to scoomnWate
operational,tedmological,or other requirements,and the Borrower hereby agrees that dladosure of any such change In any statement
of Account(or other form of notice provided to the Borrower,as contemplated harekh)shall be suffident notice of such change. The
eomcware use of the Account,in any manner contemplated harem or dgwmkAse,after being pnoviiBed vMh such notice,shall be deemed
aooeptsma of thetemw and condition of such change.
Principal and Interest shall be payable at the Bank's main office or at such other place as the Bent may designate in willing In
hrmnediatety available funds in lawful money of the UnItod States of America without set-o8,deduction or counterclaim.
This Note Is a revolving We and,subject to the foregoing and In accordance with the provisions hereof and of any and an other
agreements between the Borrower and the Bank related hereto,to Borrower may,at Its option,borrow,pay,prepay and roborrow
hereunder at any time prior to demand forpsyment haretakder or such eager date as the obligations of the BMMWer to Oro Bank under tide
Note,and any other agreements between the Bank and the Borrower related hereto,shall become due and payable,or the obNgadon of
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the Bank to extend fsrendal e000mhnoda lions to the Sonowet that termhft. M%Note shelf corkrhae U)ithil force end elfed WAI at
abtgstons and gabildies evidenced by this Note are paid In fid and the Bards is no longer obligated to wdand finandel aowmmodatons to
the Borroww,even M from time to dile,there are no amohrme outslarxAng rospeoting this Note.
The Bank may make any adwnoe of a Loan to the Borrower to rdenco upon any oral,telephonic,written,tetetraeerrnled or
other requasl(the"Requeetls)7 that the Bank In good With believes to be valid end to have boon made by Borrower or on behalf of
Borrower by an Auihorizd Person, The Bank may action the Request of any Auft red Parson unit the Bank hoo received from the j
Borrows,end hada remnoble time to ad on,written notoe revoking the authority orsuch Authorized Perron Tho Bank reserves the
right to reject arty Request that the Bonk In good faith(a)determines to be tnvatd or(b)is unable to validate pndudlnQ,Mahout
lWallon,any preauthoriaed debit draft that is pma rated to the Bards to the form ofs,paper draft on the Account that does not beer(q
at numeric codas Hat appear on a Une of Credit Check,and o0 the original signature of an Authorized Person. Without ll nft the
genatst ly of theforegoing,the Borrower shall be considered to have made a Request for a Loan by using a Una of Credit Chock,or by
sending the Bank Instrolww by using on M&T Business 4utckBank or Business ATM card or Business Check card linked to the
Account,together with appropriate PIN for such card,of any Bank elsctronlc fnscflties,via MV Web Banking for Business or by any
other etactronie means scooptobte to the Bank. If the Dorrower has a Unked Chaddna Account,the Borrower authorizes the Bards to
make a Loan end deposit the proosede of any such loan Into the Unked Checking Account,without notloe to or consent of the
Borrower.It 0 an Ram is presented against the Linked Checking Account onduding,without limilationa,checks,fees or eeMaea
charges)or funds withdrawn from of a transfer is made from such Linked Checking Account and(10 the available funds In such Linked
Checking Account oro not suffiolerrt to pay such hem or make the withdrawal or transfer. The amount of such overdraft Loan shall not
be tees then tiro difference between(0 the amount of avallable We in the Unked Checking Account and(0)the amount necessary to
-pay the Rem presented against the United Chedkkng Account or to effectuate the withdrawal or transfer, The Bank con,but will not
have to,beet all aWilsladmcu obtained by or wtemted to the Borrower with reaped to the Account during any day In ways
destulbsd In this paragraph as a single Loan.Tike Bank shelf Incur no IlaWW to the Borrower or to any other person as a direct or
indfreet rased of making any Loan pursuant to thlo paragraph,A Loan is considered made on the date the Bank posts Rto the Account.
— —.—•-The eorroww agrees not to Request o loan: (0 which would cense the Account Balance to exceed the Credit Limit;or 00 as a
ppaayymment respecting fie A000unt or to pay any other Indebtedness owing from the Borrower to"Bank or any of the Bonk At Woo(as
hereinafter defined)exktlng now or hereafter arising. If the Account Balance ever exceeds the Credit Umt,the Borrower shelf
immawatety paprth9 sxoeac to tie Bank.
The Borrower may cancel the Account at any fine by doliverlrng to the Bank a written notloo opedficolly re"931 rg
canceliedon Sui;h noiloe aft not be eltectIve until such tams as the Bank has had a reasonable time to proem the request mrd
Implement the cancellation, The Borrower atdmMedges and understands that the Aocowd is evellable subject to the Denies
conttnuing review,and that the Bank may temporary suspend or permanently cancel the Acowmt at any time to He sole dManstion,
without notice to Bre Borrower. Upon suWnston or cancellation,the Borrower shall no longer be pamnittad to use the A coount In any
manner eontemploW herein or otherwise,including,without iknitatbn,the making of any Request for a Moen. The Borrower fuller
acknowledges and understands that,foilovAng any suspension or Cancellation,overdraft protection of ami provided by the Account to
any Linked Checking Acocunl shall temdnate knmedlefely,and the Bank will not honor any Una of Credit Chock presented to the Bank
for payment(Including say Une of Credit Check that may have been previously issued by the Porrorm and Is then In circulation), By
signing below,the Benawar agrees to MoomMy and hold the Bank hanntees vO reaped to airy claim of the Borrower a any.thtcd
party related to the termination Of any such overdraft protection,or the Bennis reNuml to honor any such Una of Credit Chodke, Any
suspension or c2MUgton of the Account shall not affect In any way the Bonowert obligation to pay the Account Defames or any other
obllgaton hereunder when due,
Each Una of Credit Check is and will remain tho carers property and.upon the BaMlfs tetluest,611811 be ltromgte+felumed to
the Bonk. Any notices to the Bank regarding any loss,than or possible unauthorized use of any Une of Credit Cheek must be sem to
M&T Bank,P.O.Box 1843,Buffalo,New York 1420-4491,
For a reasonable The(as specified above),the Borrower may order the Banti not to pay any Line of Credit Check(a"Stop
Paymen!Order") Tine Bank eha11 have no obtlgstlen to follow any ouch Stop Psyment
or unless R hftlas(1)the Account number, .
(?,1 tft0 elect ancon,date and rrtrmber(tf any)of the tine of Credit Cheolk,(3)the name,exacey ere 4 appears an tis Line of Credit
tb►ack,of everyone to whose order the Urre of Credit Chedk b payable and(4)the name,exactly as it appears on the Una of Credit
Clneok,of the parser who 8t}phed the Urns cf Cradil Check,The Hank shay hove Who obligation to fallow any mob Stop Payment Order l
untlf fife Bank has Rade reasonable period of Fane t0 recoil it ageinsl the Aocou of Tia Bank than have no obligation to accept and
procoec any Stop Paymennt Order Kthere ere three or more Stop Psyrthent Ordero kxrrtenty effective. The Borrower may cancel any j
Slap Payment Orris,bud the Bank field have rq obligaftOn to accept tie canceilatbn unless itis In warp and udl the Bank has had a
raaserhabte period of Ume to record 1t against the AcoounL The Berri colli In good faith try(1)riot to pay any Line of Crag Check that the
Bank has been propety orderod not to pay an (2)to pay arhy no of Credt Check for which an order not to pay has been property
canceled, The Bards may be responsible mhly if ft fats to exardiss ordinary cars to(1)avoid paying any Une of Credit Check 0*the
Bank has been property ordered not to pay or(2)follow the proper cancellation of any order not to pay a Una of Credit Chalk. The
Bar*will be deemed to have exercised ordinary care if(f)it acts fn good isit h.(2)has a reasonable system for communicating orders
of that type and cancellation of oMena of ihal type to Its employees and agents who would be Ilkay to receive the Line of Credit Check
W(3)rT reasonably fOnms the astern use mater of routine,
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Any statement for the.Acoarm vdil be sent to the Borrower's current malfbg address shown In the Bank's records respodng
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the Account. The Bank wit matntain on its computer system the date and Oftlool pdndpal amount of etch Loan,as wall es the
Account SAWCe,which shag be presumptive evidonoe of the Aomnl,Balance due under SMs Note, No feiure by the Bank to make,
and no esor by the Bank In maklag,any annotation an Its computer system or any statement for the Account,shag affect the 8onower's
obligation to pay the Account Balance Many other obligation horeanderwhari due.
N e depoaft 8006U fdlcwing blank Borrower hereby authorizes the Bank to debk available funds In
feorrowefa depoOR ftw2 with the Bank automatically for airy amount which becomes due under(Ills Nota
oras directed by an Auth ,
Payments mvV be espied In any order,In the Bank's We discs wn,but,prior to demand,the Book vvtdl apply any payment
posted[oft Account during any Billhhg Period to the Accowd Balance at the beginning of the Bnl6mg Period in the following order: (1) !
F7trance Charges for the Loan,(2)charges for unpaid line of Credri Chaao,dlehonored check charges and overdraft advance charges, it
(8)annual fess,(4)late charges and over lhe-limil charges, (f))Loans included in the minimum payment(if any)ahown on the
statement for the Account for the preceding Blging Period,(0)total Loans shown on the statement for the Account for the preceding 1
Billing Period,and(7)neeLoons.
Any psyment recoWad by bre Bank for application to the Acmumd Balance,depending on the method of payment and Iha time,
date, place sna manner it f*resolved,need not be posted to Bre Aarount or considered to have been made(tor ptapo*es of
dotermining ongoing svelabllly under Sormwe/s Credit Limit)for up to s{x business days after the date such payment to received.
Notwithatanding the above,for purposes of calculating Finance Charges,the Account Batanoe wig be cuedned by the amount of any
paymerd within ohne business defy following the Banes recslpt of such payment generally.apeakGtg,a business day is any day other
then Saturday,Sunday ore federal holiday.
The 90rrower represehfs to the tank ttrot the proceeds of this Note will not be used for pareonal,family or household
purposes or fortiro purpose of purchaeing or oafrying rnualn stock or margin seeurlties within the meaning of Regulations U
and-k of the Board of Governors of the Federal Reswva System,12 C.F.R.Parts 221 and 224,•—•.
The Borrower grants to the Bank a continut Can on and Security and all deposits or other sum at lime
credited by cr due from Vw Bards or any Bank Affiliate as herelaafter ned))tto the Borrower and any cash,aecurItIn.Instruments*or
other property of the Botroww In the possession of the Bank or any Bank Aifiiiata,whether for safekeeping or olhexvrke,or in transit to or
from the Bark or any Bank Affilate(ragardlasa of the mason the Bank or bank Mists had received the same or whether the bank or
Bank Agate has oondltkrnsly released the same)as sawflyforthe hull and punctual payment and perfomronce of all of the fleblIldes and
oNgations of the Bonmr to the Bank at arty Batik Affiliate and such deposits and other sums may be applied or sat off egakhst such
liablltes end o plizons of file Boar war to Lha Bank or any Bank Attlllate at any Urne,whether or not such aro than Bus,whether or not
demand has beslf made and whether or rwf other a>kalarat Is then available to the Bank or any Bank Af rate.
No delay or omission on the part of the Beak In exerdsing any right hereunder shall operste as a walvar of such dght or Of arnr•
other fight of the Bank,nor shall any delay,orntaslan or watver on any one occasion be deemed a bar to or weNer of the same or any
othar right on eny future occasion. The Sorroxrer and any other party obggated on atx orird ofthis Nolo by contr*ct,by oparafiort o!taw
oromenvlae she BorfaweT and each Borrower,N more than one,em!each Euoh other party,an"OliitgoP)regardless of the time,order i
or place of atpning,wetve presentmerd,demand,prote*t,notice of intent to eocstaroto,no@ce of acceleration arui a!I other nogces of
every kind In oanneoftohi v>lih the deivary,aooeptenoe,performanc�e or erdaoroemsat o/thte Nobs and assert iA any ehdenabn or
postponomrrrt of Lha lime of payment or anp otihar Indulpenoe,to any substitution,exciranga or releaac of cdlataraL shod ib the addition
or release of any other party or person pdmmtfy or seoondadly gable and walve6 a9 recourse fa euretyahip end gua»ntor defanses
-terminates an ling anya�nse based On tmpaimherd of oo11a0era1, 7o the unaxdmum extant permbted by Iaw,the BoTrowO►wafvea and
y rights and/or axemptiona ceEpedlrhg arty premises under the pro+dalotro of any eppficeble homestead laws,
The Spnoww*hall Indemnify,defend and hold The Bank and the Bank Afllgates and their directors,officers,amptayeos,
agents end ettomeys(each an Wndenahriee)harmless what any dolm brought or threatened against any Indomnriee,by the Borrower
or by arty other person(as well as from-attorneys'reasonable toes and expenses in connection fherewlth)on exeunt of the SankW
relationship with the Borrower(each of which may be defended,oompremised,called or pureued by the Bank with counsel of the
Bank's salodlon;but at the expense of the Borrower),except for any claim arising out of the gross nagllgenoe or willful misconduct of
the Bank
The Borrower and each endorser and guarantor of thls Note agree to pay,upon demand,costs of collection of all amounts
under this H939 including,vdthout imkatfon,ptfnoipal and Interest,or M ooraw6on with the enforcement of,or rewhatlon On,any
socurdy for thto NOW,InetuSq,without 8mbailon,to the extant permitted by applicable law,reasonable ariomeye fees and expensea,
if Borrower fella to pay arty*mount under this Note when due,the Bank may In its We discretion,Increase the Applicable Rate to en 1
annual rate equal to 14.90%(the Tefouri Rate')and any Judgment atemd hereon or olhsoMso In connection Wth any sun to coneet �
amounts due hereunder shell bear Interest at ouch Default lisle. Once applied(o wArg any payment default,the Defaun Rats cull
ganorMy'remain in effect through the end of the TIM hM Billing Pefiod tolowing the data such payment default is cured Molault Bate
Period'),provided that no additional payment defaults occur during the Default Fteto Period.If another payment defa M does omur
during the Defoun Rate Period(or any extenslon thereof,as contemplated harsh),such betaun Rate Period shag be automaftel y
reset and extended through the end of the firth full Billing Period(olow]ng the date that all payment defaufte are property cured, .
+ Acoordingty,a Defeuft Rate Period may be extended Indefvrbety by subsequent defaults that ooahr before that Defaun Pato Period
4
i
expires. Upon the expiration of any Default Rate Period,the Applicable Rate shall revert to the Base Rate.if any payment due under
this Note is unpaid for 10 days or mora,the Borrower shall pay,in addition to any other sums due under this Note(end without smiling
the Bank's Mar remedies on amount thereof),a late charge equal to either 6.0%of such unpaid amount,as referanced on any
statemerd of the Account,or 320,as delem Ined by the Bank In he discretion,or the BanVa then Current late charge as announced from
time tofmw.
Ihle Nota shall be binding upon the Borrower and upon Its heirs,successors,assigns and legal represenla vas,and shat)
Inure tothe bane6l of the Bank and rte summon,andomees and assigns.
The liabilities of the Borrower and each Borrower,if more than one,and any Obligor are Joint and soverak provided,however,
the release by the Bank of the Borrower or any one or more Obligors shall not releses any other person obligated on amount of thla
Nota. Any and all presets and future debts of the Borrower to any Obligor are sub"nated to the tun payment and pedonnana Wall
present and future debts and obligations of the Borrower to the Bank. Each reference in this Note to the Borrower and each Borrower.
if more then one,and Obligor,Is to such person individually and also 10 all such persona Jointly, No person obligated on accountof this
Nota may cook contribution from any other person also obligated,urdass and until all liabilities.obligations and indebtedness to the
Bank of the person from whom contribution is sought have been Irrevocably sallslad In full.The release or cempromlee by the Bank of I
any collateral shall not release any person oblWafad on amount of this Note,
The Bonovrer authorizes the Bank to complete this We If deRverad Incomplete in any respect. A photographic or other
reproduction of this Note maybe made by Ste Bank,end any such reproduction shag be admissible In evidence With the same effect as
the original itself in arty Judida)or admhdstrative prooeedklg,whathar or not the odglnet Is in existence.
The Borrower vM from time to time asoute and delivar to the Bank such doamhants,and take Or Cause to be Iaken,ml such
other-War aadon,as the Bank may request In order to offeet and confirm or vast more securely in the Bank all rights contemplated by
this Note or any other loan domimehte related thereto(Indwifig,without Iimtiation,to correct dodos)amour)or to veat more fully Ih or
assure to to Bards the setudy Interest in any e6lliril9iitlltidalurrg thla Nolo or to iarrpiyMhtti applies a or aw, i
Thfa Note shall be governed by the Iwo of the State of Delaware vdihout Oft effect to the conflicts of taws principles
thereof.
Any demand or notloe hereunder or underany applicable Jaw pertaining hereto sball be in writing and duly given if delhrered to
any party hereto at the address for such party as set forth herein,or at such other address as any party may from time to lime
daslgnate In written notice Moelved by the othat parties treretx provided,however,that in order for arty notice to the Bardu to be j
deemed effective,a duplicate notice ehaa be separately delivered to the Bank at the mwent otdoa address of the Bank darer primarlly
respoonelbla for Ota aratomer account to which Otis dowmant relates.Any such demand or notice shall be deemed suPodently,given for
all purposes when dallvered(1)by personal delivery and shall be deemed affective when del varad,or CD by mac or courier and shall be
deemed stfectl a throe(3)business days after deposit In an official depository malntalned by the United Slates Post Office for the
collection of mail crone(1)business day after delivery to a nalloraty rempt wd avemtght couriersaMDe. Noltoe by e-moli ds root valid
notice wtderthte cr arty oifteragmementbuWmn the undersigned panes.
The teat Bank Af date•as used in this Note shall mean any banking or lending effhtletes of the Bank,any party acting as a
participant lander In the aradft arrangements contemplated hweln,or any third party acting on the Sanids behalf,
Excas set forth-below,no Change in Etta Nato or waiver of any right or remedy hereunder Can be made except in a writing
signed bept y the Bm*, No course of dealing or other condt4 no oral agreement or mpresentstlon made by the Be*and no usage of
trade,aheti operate as a waiver of any right or remedy of the Bank. No waiver of any right or remedy of the Bank shall be effective
unless made specifically In writing by the Bank.
TMs Note,together with any related loan and security agreements and guaranties,contains the antlre agreement between the i
Borrower and the Bank with respect to the Nota and supersedes every course of deaftng,other conduct,oral agreement and
representation previously made by the Sank.
if there to more than one obligor to are Bank named herein and signing beto%each such obligor that be Jolttly and severalty
sable for the payment of at amounts and pedomtanoe of all obligations required hereunder.
If there Is a change In the Borrowaft address or matting address,name,ohg talon or ownership,or N them Is any
unfavorable change In the Borrowers financial condition,the Borrower hereby agrees to notity the Bank in advance In writing of any '
such change. The Borrower agrees to submitto the Bank business and/or personal financial statemarria Ina form satkfactoryto Bank,
In Its We and unfettered discretion,whenever the Bank requests delivery of any such businaae andror personalfinandel atatemente.'
The Borrower Irrevocably submits to the nonexduslve jurisdloOon of arty Federal or slate court sitting M Delaware,over any
Will.action or proceeding arising out of or relating to iiia Note. 7be Borrower inrevocabdy waives,to the fullest extant it may elfecftly
do so under applicable law,any objection it may now or hereafter have to the laying of the venue of any such suit,Catton or prop3eding
brought In awry such court and any claim that the some has been brought In an Inconvenient foram, The Bow hamby consents to i
/ 5
eay and all process wtft may be served in any such suck action or proceeding,(Q by malting a oopy ftMot by MM terod and oefflIed
mall,postage prepaid,return receipt requested,to the Bomowets,address shown below or as notified to the Bank end OQ by serving
the same upon the Borrowar(s)in any other manner otherwise Permitted by law,and agrees that such service shall in every respect be
doomed eftec3lve service upon the Borrower.
THE BORROWER A:OWOWi.EDGES THAT THIS NOTE IS A DEMAND NOTE AND THE Ri(3HT OF THE BATIK TO
DEMAND PAYMENT OF THIS NOTE IN WHOLE OR iN PARY AT ANY TIME SHALL BE ABSOLUTE,UNCONDITIONAL.AND iN
THE SOLE DISCRETION OF THE BANK THE INCWSiON OF EVENTS OF DEFAULT AND COVENANTS iN ANY LOAN
DOCUMENTS Bi#TWEEN THE BANKAND THE BORROWER OR ANY OTHER PARTY DELIVERED IN CONNECTION WITH THIS
NOTE OR OT14ERWM SHALL NOT IN ANY WAY LIMIT THE DEMAND NATURE OF THiS NOTE AND THE SANK MAY MAKE
DiEMAND FOR PAYMENT AT ANY TIME FOR ANY OR NO REASON,WHETHER OR NOT AN EVENT OF DEFAULT HAS
OCCURRED UNDER ANY SUCH LOAN DOCUMtENT&
THE BORROWER AND THE BANK EACH HEREBY KNOWINGLY,VOLUNTARILY AND INTENTIONALLY,AND AFTER
AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL,(A)WAIVES ANY AND ALL RIGHTS TO A TRiAL BY JURY IN ANY
ACTION OR PROCEEDING IN CO)MECTiOH WITH THIS NOV,ANY OF THE OBLIGATIONS OF THE BORROWER.TO THE
BANK,AND ALL MATTERS CONTEMPLATED HEREBY AND DOCUINEWTt3 POMCUTED IN CONNEC:=HEREWITH AND(B)
AGREES NOT TO SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CAN
NOT BE,OR HAS i40T BEEN,WAIVED. THE BORROWER AND THE BANK EACH CERTIFIES THAT NEITHER THE BANK NOR
ANY OF ITS REPRESENTATIVE%A430M OR COUNSEL HAS REPRESENTED,EXPRESSLY OR OTHERVIIISE,THAT THE t
BANK WOULD NDT!N THE EVENT OF ANY SUCH PROCEEDING SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY
JURY.
Power bo Confess Judgment. BORROWER HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD,
AFTER THE OCCURRENCE OF ANY EVENT OF DEPAULT HEREUNDER,TO APPEAR FOR BORROWER AND,WITH OR
-•. .•--.VJFTMOUT-COMPL4JNT-RLW,-GONFESSddBBMENI 9R A B2RiES OF-IUD WENM,-AGAINST•BORRO .—_... ..
THE BANK OR ANY HOLDER HEREOF FOR THE ENTIRE PRiNCiPAL BALANCE OF THIS NOTE,ALL ACCRUED INTEREST
AND ALL OTHER AMOUNTS DUE HEREUNDER,TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF
TWENTY PERCENT(20%)OF SUCH PRINCIPAL AND INTEREST AS A REASONABLE ATTORNEY'S FEE,AND FOR DOING SO
THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT 8HA1L BE A SUFFICIENT WARRANT, BORROWER HEREBY FOREVER
WANES AND RELEASES ALL ERRORS IN SAID FLOODINGS AND ALL MOHTS OF APPEAL AND ALL RELIEF FROM ANY
AND ALL APPRAISHMENT,STAY OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED.
INTEREST ON ANY SUCH JUDGMENT SHALL J4CCWE AT THE DEFAULT RATE, NO SiNGLE EXERCIBE OF THE
FORE901140 POWER TO CONFESS JUDGMENT,OR A SERIES OF JUDMMENTS,SHALL BE DEEMED TO MAUST THE
POWER,WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HEW BY ANY COURT TO BE INVALID,VOIDABLE,OR VOID, i
BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TUBE TO TiME AS OFTEN AS THE I
BANK SHALL ELECT UNTIL SUCH TIME AS THE SANK SHALL HAVE RECEIVED PAYMENT IH FULL OF THE DEBT,INTEREST i
AND COSTS.
Borrower acknoWedges that it has read and undsrstandt all ptovWons of this Nota and has been advised by ocumd as
neoessmy or appropdate.
Exmftd as an IrrsVument ander seal as of-3)4 .20%
Wdnww. Borrower.
Cake Break,Inc.
• i
SEAL) By' !SEAL)
Phuip Katz�Pres dent.-
7 South First Street
Rehoboth Beech,Delaware
iSBTt
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(Page 1 of 4)
1
MMO'B=k
W M�.7n nn rMa.Tor nnbdry
ONUMITED GUARANTY
TO;. M&T'Bank,a New York banking corporation(the"Bank)
RE: Cake Break,Inc.,a.Delaware corporation(the"Borrower')
To induce the Bank to make or continue to make loans, advances,or grant other financial accommodations to the Borrower, in
consideration thereof-and for loans, advances or financial accommodations heretofore or hereafter granted by the Bank to odor the
account of the Borrower,the undersigned Philip Katz(the"Guarantor)absolutely and unconditionally guarantees the full and puricxual
payment to the Bank of all sums which may be presently due and owing and of all sums'which shall in the future become due and
owing to the Bank,from the Borrower, whether direct of Indirect, whether as a borrower, guarantor, surety or otherwise, including,
without limitation,interest,attomeye fees and other amounts accruing after the filing of a petition in bankruptcy by or against Borrower,
notwithstanding the discharge of Borrower from such obligations, together with all casts and expenses incurred by the Bank in
connection with such obligations;this Unlimited Guaranty(this"Guaranty")and the enforcement thereof,and-also guarantees the.due
performance by the Borrower of all Its obligations under all other present and future contracts and agreements with the Bank,including,
without limitation, all.rate swap transactions, basis swaps,forward rate transactions, Commodity swaps, commodity options, equity or
equity index swaps,equity or etauKy index options,bond options,interest rate options,foreign exchange transactions,cap transactions,
floor transactions, collar transactions, forward transactions, currency swap transactions, cross-currency rate swap transactions and
currency options. T his,is,a guaranty of payment and not collodion.
Guarantor also agrees:
(1) to indemnify and hold the Bank and any Bank Affiliate(as hereinafter defined) and their directors, officers, employees,
agents and attorneys harmless from and against all claims,obligations, demands and liabilities,by whomsoever asserted,
and against all losses.in any way suffered, incurred or paid as a result of or in any way arising out of or following or
consequeritiai.to transactions with the Borrower,except for any claim.adaing out of the gross negligence or willful misconduct
of the Bank; _
(2) that this Guaranty shall not be•impaired by any modification,supplement,extension,renewal or amendment of any contract
or agreement to which the parties thereto may hereafter agree,nor by any modification,Increase,release or other alteration
of any of the obligations hereby guaranteed or of any security therefor,nor by-any agreements or arrangements whatsoever
with the Borrower or anyone else,all of which may be done without notice to or consent by the Guarantor;
(3) that the liability of the Guarantor hereunder is direct and unconditional and due Immediately upon-default of the-Borrower
without demand or notice and without requiring the Bank first to resort to any other right,remedy or security;
(4) that Guarantor shall have-no right of.subrogation,reimbursement or indemnity whatsoever until the Bank is indefeasibly paid
in full,nor ariy right of recourse to security for the debts and obligations of the Borrower to the Bank;
(5) 'that the liability of the Guarantor is unlimited and shall'be joint and several with the liabilities of any other guarantors;
(6) that if the Borrower or the Guarantor or any other guarantor should'at any time become insolvent or make a general
assignment, or if a petition in bankruptcy or any insolvency or reorganization proceedings shall be filed or commenced by,
against or in-respect of the Borrower or the Guarantor,or any other guarantor of the obligations guaranteed hereby,any and
all obligations of the Guarantor shall be immediately due and payable without notice;
(7) that the Bank's books and records showing the account between the Bank and the Borrower shall be admissible in any
action or proceeding,shall be binding upon the Guarantor for the purpose of establishing the items therein set forth and shall
constitute conclusive proof thereof;
(8) that this Guaranty is,as to the Guarantor, a continuing Guaranty that shag remain effective under successive transactions
until expressly terminated as hereinafter provided;
(9) that this Guaranry may be terminated as to the Guarantor only by giving the Bank Sixty(60) days' prior written notice by ,
registered or certified mag, and thereupon this Guaranty shall terminate with respect to Guarantor only-at the expiration of
said Sixty(60)day period,which shag then be the effective date of termination,and that.such termination shall be applicable
TRUSOOPY UCC n-AUthori`�ative Copy
i
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(Page 2 of 6) I
only to transactions having their inception after the effective date of termination and shall not affect rights and obligations
arising,out of transactions or indebtedness or extensions or renewals thereof having their'Inception prior to such date,
including renewals, extensions, modifications and refinancings of such prior transactions, or arising out of extensions of
credit made pursuant to a commitment previously made by the Bank,
{1U) that the death of Guarantor shall not effect the termination of this Guaranty as to Guarantor providing, that In any event
within Sixty (60) days•after the death of the Guarantor, Borrower or any surviving guarantor shall provide to the Bank
evidence that the estate of the Guarantor confirms ifs obligations to the Bank under this Guaranty;
(11) that termination, release or limitation of any guaranty of the obligations guaranteed.hereby by any other guarantor shall.not
affect the continuing liability hereunder of the Guarantor;
(12) that nothing shall discharge or satisfy the.liability of the Guarantor hereunder except the full indefeasible payment and
performance of all of the Borrower's debts and obligations to the Bank with interest and costs of collection;
(13) that this.Guaranty-shall not be affected by the illegality, invalidity or unenforceability of the obligations.guaranteed, by any
fraudulent,illegal or improper act by the Borrower,,the legal incapacity or any other defense of the Borrower,the Guarantor
or any other person obligated to the Bank consequential to transactions with the Borrower nor by the Invalidation, by
operation of law or otherwise,of all or any part of the obligations guaranteed hereby, including but not limited to any interest
accruable on the obligations guaranteed hereby during the pendency of any bankruptcy or receivership proceeding of the
Borrower;
(14) that any-and all present and future debts and obligalions of the Borrower to Guarantor are hereby waived and postponed In
favor of and subordinated to the full Indefeasible payment and performance of all present and future debts and obllgations of
the Borrower to the Bank;
(15) that the Guarantor hereby grants to the Bank a continuing lien and security interest in all deposits or other sums-at any time
credited by or due from the Bank or any Bank Affiliate to the Guarantor and any property of the Guarantor at any time in the
possession of the Bank or any Bank Affiliate whether for safekeeping or otherwise, or In transit to or from the Bank or any
Bank Affiliate(regardless of the reason the Bank or Bank Affiliate had received the same or whether the Bank or Bank AffrTiate
has conditionally released the same)as security for the full and punctual payment and performance of all of the obligations
guaranteed hereby, and such deposits and other sums may be applied or set off against such obligations at any time,
whether or not such are then due, whether or not demand has been made and whether or not other collateral is then
available to the Bank or.any Bank Affiliate;
(16) that ff at any time payment of all or any part of the obligations guaranteed hereunder is rescinded or olhenrvise must be
restored by the Bank to the Borrower or to the creditors of the Borrower or any representative of the Bomawer or
representative of the Borrower's creditors as a voidable preference or fraudulent transfer or conveyance upon the
insolvency, bankruptcy or reorganization of the Borrower or the Guarantor, or to the creditors of the Guarantor or any
representative of the Guarantor or representative of the creditors of Guarantor upon the insolvency, bankruptcy or
reorganization of the Guarantor&otherwise,this Guaranty shall continue to be effective at be reinstated,as the case may
be, as though such payments had'not been made,and shall survive as an obligation of the Guarantor, and shall not be
discharged or satisfied by said payment or payments, notwithstanding'the return of the original of this Guaranty to the
Guarantor or to the Borrower,or any other apparent termination of Guarantors obligations hereunder:
(17) that any rights and remedies available to the Bank under this Guaranty are cumulative,and not.exclusive of any rights and
remedies otherwise available to the Bank at taw or in equity;
• 1
(18) that the Bank's delay or omission In exercising any of the Bank's rights and remedies shall not constitute a waiver of these
rights and remedies, nor shall the Bank's waiver of any right or remedy operate as a waiver of any other right or remedy i
available to the Bank. The Bank's waiver of any right or remedy on any one occasion shall not.be considered a waiver of
same on any subsequent occasion,nor shaft this be considered to be a continuing waiver,
(19) that this Guaranty Incorporates all discussions-and negotiations between the Bank and the Guarantor oon6aming the
guaranty and indemnification provided by the undersigned hereby,and that no such discussions or negotiations shall Omit,
modify,or otherwise affect the provisions hereof,there are no preconditions to the effectiveness of this Guaranty and that no
provision hereof may be altered, amended,waived, canceled-or modified, except by a written instrument executed, sealed
and acknowledged by the Bank's duly authorized officer;and
(20) that this Guaranty and all documents-which have been or may be hereinafter furnished by the Guarantor to the Bank may be
reproduced by the Bank by any photographic, photostatic, microfilm, xerographic or similar process, and that any such
reproduction shall be admissible in evidence as the original itself in any'judicial or administrative proceeding (whether or not
the original is in existence and whether or not such reproduction was made in the.regular course of business).
2
TRIECOPYUCC NontlAutfl®ritative dopy
?
(Page 3 of 6)
1
Guarantor waives: notice of acceptance hereof, presentment and protest of any instrument and notice thereof,notice of default
and all other'notices to which the Guarantor might otherwise be entitled;and any and all defenses,including without limitation,any and
ap defenses which the Borrower or-any other party may have to the fullest extent permitted by law,any defense to this-Gua"-based
on impairment of collateral or on suretyship defenses of every type; any right to exoneration or marshaling. To the maximum extent
permitted by law, Guarantor waives and terminates any homestead rights andlor exemptions respecting any premises under the
provisions of any applicable homestead law. To the extent that it lawfully may, Guarantor hereby further agrees not.to invoke any law l
relating to the marshaling of collateral which might cause delay in or impede the enforcement of the Bank's rights under this Guaranty
or otherwise respecting the guaranteed obligations, and to the extent that it lawfully may do so, the Guarantor hereby irrevocably i
waives the benefits of alt such laws. Except as otherwise provided by applicable law,the Bank shall have no duty as to the collection or
protection of any collateral,if any,securing the guaranteed obligations beyond the safe custody thereof.
Guarantor will from time to time execute and deliver to the tank,and take or cause to be taken,all such other further action as the
Bank may request in order to effect and confirm or vest more securely in the Bank all the rights contemplated in this Guaranty i
(including, without limitation, to correct clerical errors) or respecting any of the obligations guaranteed hereby or to comply with
applicable statute or law,
The term "Bank Affiliate"as used in this Guaranty shall mean any banking or lending affiliates of the Bank,any party acting as a I
participant tender in the credit arrangements contemplated herein,or any third party acting on the Banks behalf.
This Guaranty shall be governed by the laws of the State of Delaware without giving effect to the conflicts of laws principles
.thereof, shall be binding upon the heirs, executors, administrators, successors and assigns of the Guarantor and shall inure to the
benefit of the Bank's•successors and assigns.
If any provision of this Guaranty Is found to be invalid,illegal or unenforceable,the validity of the remainder of the Guaranty shall
not be affected.
I
Guarantor, if not a natural'person,certifies that it is and:shall remain duly organized and in good standing under the laws of the I
State of its organization or formation and duly authorized to do business in each State material to the conduct of its business. ?
If as of the date any payment of proceeds of collateral received by the Bank ace refunded or otherwise restored to the Borrower or
any.third party, the statute of limitations shall start anew with respect to any action or proceeding by the Bank against the Guarantor
under this Guaranty. Likewise,any acknowledgment,reaffirmation or payment,by the Borrower or any third party,of any portion of the
obligations guaranteed hereby,shall be deemed to be made as agent for the Guarantor,strictly for the purposes of toiling the running of
(and/or preventing the operation at)the applicable statute of limitations with respect m any action or proceeding by the Bank against the
Guarantor pursuant to this Guaranty.
Guarantor will furnish to Bank from time to time, such financial data and infortnatlon about Guarantor as Bank may reasonably I
request(collectively,the"Financial-Statements"). Guarantor represents and warrants the accuracy of any information contained therein
and.hereby agrees not to encumber or transfer any assets listed on any Financial Statements without the Bank's prior consent.
?
Guarantor-irrevocably submits to the nonexclusive jurisdiction of any Federal or state court sitting in Delaware, over any suit,
action or proceeding arising out of or relating to this Guaranty. Guarantor irrevocably waives;to the fullest extent it may effectively do
so under applicable law, any objection it may now or hereafter have to the laying of the venue of any such suit, action or proceeding i
brought in any such court and any claim that the same has been brought in an inconvenient forum. Guarantor hereby consents to any
and all process which may be served in any such suit,action or proceeding, (i) by mailing a copy thereof by registered and certified
malt, postage prepaid, return receipt requested,to the Guarantor's address shown below or as notified to the Bank and(ji)by serving
the same upon the Guarantor in any other manner otherwise permitted by law,and agrees that such service shall in every respect be ?
deemed effective service upon the Guarantor.
GUARANTOR AND BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND AFTER AN
OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, (A) WAIVE ANY AND ALL RIGHTS TOA TRIAL BY JURY iN ANY
ACTION OR PROCEEDING iN CONNECTION WITH THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, ALL
MATTERS CONTEMPLATED HEREBY AND DOCUMENTS EXECUTED IN CQNNECTION HEREWITH AND(B)AGREE NOT TO
SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER 14CT16N IN WHICH A JURY TRIAL CAN NOT BE; OR HAS
NOT BEEN WAIVED. GUARANTOR CERTIFIES THAT NEITHER THE BANK NOR ANY OF ITS REPRESENTATIVES, AGENTS
OR COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE; THAT 7114E.BANK WOULD NOT IN THE EVENT OF.ANY
SUCH PROCEEDING SEE.ICTO ENFORCE THIS WAIVER OF•RIGHT TO TRIAL BY JURY.
i
Power to Confess Judgment GUARANTOR HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD TO
APPEAR FOR GUARANTOR AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A SERIES OF
JUDGMENTS, AGAINST GUARANTOR IN FAVOR OF-THE BANK OR ANY HOLDER HEREOF FOR ALL AMOUNTS DUE
HEREUNDER,TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF TWENTY PERCENT(YO%)OF SUCH
AMOUNTS AS A REASONABLE ATTORNEY'S FEE, AND FOR DOING SO THIS GUARANTY OR A COPY VERIFIED BY
AFFIDAVIT SHAD BE A SUFFICIENT WARRANT. GUARANTOR HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS i
IN SAID PROCEEDINGS AND ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANY AND ALL APPRAISEMENT,STAY OR j
3 I
UECOPY UCC ��n��lu h��� �t��� ���
T
(Page Q of 6)
EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. INTEREST ON ANY SUCH JUDGMENT
SHALL ACCRUE AT THE DEFAULT RATE SET FORTH IN ANY OF THE DOCUMENTS EVIDENCING THE OBLIGATIONS OF
GUARANTEED HEREBY. NO SINGLE EXERCISE OF.THE FOREGOING POWER TO CONFESS JUDGMENT, ORA SERIES OF
JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER,WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD
BY ANY COURT TO BE INVALID,VOIDABLE,OR VOID,BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE i
U.ERCISED FROM TIME TO 71ME AS OFTEN AS THE BANK SHALL ELECT UNTIL SUCH TIME AS THE BANK.SHALL HAVE {I
RECEIVED PAYMENT IN FULL OF ALL AMOUNTS DUE HEREUNDER.JJ rr l
Executed as an instrument under seal and dated rh `1 .2013. III
1
Witness: Guarantor.
(SEAL) (SSEAL)
Philip Katz,individually
Address: 7 South First Surat
Rehoboth Beach.Delaware
_ 18971
STATE OF DELAWARE
COUNTY OF_S2.t N&A .SS. t}�
The foregoing instrument was acknowledged before me this`?day of C� 20g by Philip Katz.
MARY ANN SOCKAIT'ER �,NOTARY PUBLIC
Notary PUbItC-State of DelaWar® MICO ISSIOI CPIRES:
My Comm. F-spires Feb.13,2014 TYPE OR PRINT NAME
J% OOfW
4
- I
Guaranty-Guarantor 1 0 2013 Medici,a division of Wolters Kluwer Financial Services
EXHIBIT B
M&T Bank
VIA CERTII'-I[`.D MAN.,RETURN RFCEIPT
REQUES'i L-1) AND FIRST CLASS MAIL
April 8,2014
Philip Katz
154.Erford Rd,Apt 412
Camp Hill,PA 17011
RE: OBLIGATIONS OWED TO MANUFACTURERS and TRADERS TRUST COMPANY(`M&T BANK')
ACCOUNT#12044468317316001
Dear h&.Philip Katz,
Reference is made to that certain Business Access Line of Credit dated March 5,2013,in the original principal amount of
$25,000.00 made by Philip Katz,(the`Company')to M&T Bank(the`Note').
As of April 8,2014,the indebtedness under the Note is$25,161.83($24,949.48 principal,$192.35 accrued interest and $20.00
late fees). Interest is currently accruing at a per diem rate of$4.10.
Demand is hereby made for immediate payment of the above sums in full. If payment in full including interest to the date of
payment is not received by April 18,2014,M&T Bank shall at such time as it deems appropriate,take such steps as are necessary
to protect its interest under the Note including without limitation,the commencement of legal action or enforcement of its rights
under any collateral documents,guarantees or mortgages.
"If any partial payment of the Loan is made after the date of this letter,such payment shall,if accepted by the Bank,be accepted
with a full reservation of all rights of the Bank and shall not result in reinstatement of the Loan. Neither,acceptance of any partial
payment nor anything contained in this letter shall constitute a waiver of any rights or remedies of the Bank under applicable loan .
documents or at law,all of which rights and remedies are specifically reserved." j
Contact me upon receipt of this letter. Your immediate attention is required. I can be contacted at the number listed below.
I
S-noerely,
Tiana Whetstone
Business Banking Counselor
Phone: 866-890-7231 ext.8803 7100 0000 0000 0292 9093 �3
Fax: 855-700-0369 uS POSTAL SERVI
E-mail.twhetstone@mtb.com RETURN RECEIPT
-OR CERTIFIED MAIL
TEND TO:
PHILIP KATZ
154 ERFORD RD,APT 412
;AMP HILL PA 17011
;;EES,.
postage: 0.48
Certified Fee: 3.30
4elum Receipt 2.70
TOTAL• $
8.48
POSTMARK or DATE
M&T Bank,PO Box 3340,Buffalo,NY 14240-3340
P8 Form 3800,April 1995
USA197 CMF-058
V
t.J
LAND CCJiF'Fi'
°EliNSYLVANIA
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
MANUFACTURERS AND TRADERS
TRUST COMPANY,
One M&T Plaza.
Buffalo,New York 14203 CIVIL DIVISION _
Case No.: 14 - 4(�-a
Plaintiff,
>k
V. COMPLAINT FOR CONFESSION
* OF JUDGMENT OF MONEY
PHILIP KATZ,
154 Erford Road, Apt. 412
Camp Hill, Pennsylvania 17011
Defendant.
NON-MILITARY SERVICE AFFIDAVIT
I,Jennifer L. Gainey,declare under the penalties of perjury,that the.following statements are
true, accurate and correct to the best of my knowledge, information and belief:
1. I am an Assistant Vice President of the Plaintiff, Manufacturers and Traders Trust
Company.
2. Philip Katz, the Defendant in the above-captioned action: (a) is not in the military
service of the United States of America;(b)is not in the military service of any nation allied with the
United States of America; (c) has not,been ordered to report for induction under the Selective
Training and Service Action of 1940, as amended; and (d) is not a member of the enlisted reserve
1
a 1 '
corps who has been ordered to report for military service. I base the foregoing upon the fact that
Philip Katz does not reside on or about a military installation and is engaged in a non-military
occupation,and a search on the Department of Defense Manpower Data Center website pursuant to
the Service Members Civil Relief Act was conducted, and Mr. Katz is not listed as currently being
active in the military (copy of search attached hereto for reference).
3. The last known address of the Defendant is:
Philip Katz
154 Erford Road, Apt. 412
Camp Hill, Pennsylvania 17011
MANUFACTURERS AND TRADERS TRUST
COMPANY
By. n Jill //'v
Name: ?SsistadtVice
ifer .)Gainey/
itle:TPresident
ACKNOWLEDGEMENT
2
STATE OF t4 4zo U04t
TO WIT:
CITY/COUNTY OF T�
I HEREBY CERTIFY, that on thisBjday of July, 2014, before me, the subscriber, a
Notary Public of the jurisdiction aforesaid,personally appeared JENNIFER L. GAINEY,(known to
me or satisfactorily proven to be the person whose name is subscribed above), who acknowledged
herself to be an Assistant Vice President of Manufacturers and Traders Trust Company who declared
and acknowledged under oath, subject to the penalties of perjury,that the matters and facts set forth
herein are true, accurate and complete to the best of her knowledge, information and belief.
IN WITNESS WHEREOF I hereunto set my hand and official seal.
r
EAL)
Notary Public
GERALD F.LANDOWSKI
f Notary Public,State of New York
My Commission Expires: l o—3 �� O(q Qualified in Genesee County
My Commission Expires
3
Department of Defense Manpower Data Center Results as of:Jul-02-2014 07:45:35 AM
SCRA 3.0
. Status Report
Pursuant to Service-members Civil.Relief Acct
Last Name: KATZ
First Name: PHILIP
Middle Name:
Active Duty Status As Of: Jul-02-2014
On Active Duty On Active Duty Status Date
Active Duty Start Date Active Duty End Date Status Service Component
NA NA No NA
This response reflects the individuals'active duty status based on the-Active Duty Status Date
Lett Active Duty Within 367 Das of Active Duty Status Date
Active Duty Start Date Active Duty End Date Status Service component
NA NA No I NA
This response reflects where the Individual left active duty status within 367 days preceding the Active Duty Status Date
The Member or His/Her Unit Was Notified of a Future Call-Up to Active Duty on Active Duty Status Date
Order Notification Start Date Order Notification End Date Status service Component
NA NA .No - NA
This response reflects whether the individual or hislher unit has received earty notification to report for active duty
Upon searching the data banks of the`Uepartment of Defense Manpower'Data Center,based on the information that you provided,the above is the status of
the individual on the active duty status date as to all branches of the Uniformed Services(Army,Navy,Marine Corps,Air Force,NCAA,Public Health,and
Coast Guard). This status includes information on a Servicemember or his/her unit receiving notification of future orders to report for Active Duty.
w
Mary M.Snavely-Dixon,Director
Department of Defense-Manpower Data Center
4800 Mark Center Drive,Suite 04E25
Arlington,VA 22350
The Defense Manpower Data Center(DMDC)is an organization of the Department of Defense(DoD)that maintains the Defense Enrollment and Eligibility
Reporting System(DEERS)database which is the official source of data on eligibility for military medical care and other eligibility systems.
The DoD strongly supports the enforcement of the Servicemembers Civil Relief Act(50 USC App.§501 et seq,as amended)(SCRA)(formerly known as
the Soldiers'and Sailors'Civil Relief Act of 1940). DMDC has issued hundreds of thousands of"does not possess any information indicating that the
individual is currently on active duty"responses,and has experienced only a small error rate. In the event the individual referenced above,or any family
member,friend,or representative asserts in any manner that the individual was on active duty for the active duty status date,or is otherwise entitled to the
protections of the SCRA,you are strongly encouraged to obtain further verification of the person's status by contacting that person's Service via the
"defenselink.mil"URL:http://www.defenselink.mil/faq/pis/PC09SLDR.html. If you have evidence the person was on active duty for the active duty status
date and you fail to obtain this additional Service verification,punitive provisions of the SCRA may be invoked against you. See 50 USC App.§521(c).
This response reflects the following information: (1)The individual's Active Duty status on the Active Duty Status Date(2)Whether the individual left Active
Duty status within 367 days preceding the Active Duty Status Date(3)Whether the individual or his/her unit received early notification to report for active
duty on the Active Duty Status Date.
More information on "Active Duty Status"
Active duty status as reported in this certificate is defined in accordance with 10 USC§101(d)(1). Prior to 2010 only some of the active duty periods less
than 30 consecutive days in length were available. In the case of a member of the National Guard,this includes service under a call to active service
authorized by the President or the Secretary of Defense under 32 USC§502(f)for purposes of responding to a national emergency declared by the
President and supported by Federal funds. All Active Guard Reserve(AGR)members must be assigned against an authorized mobilization position in the
unit they support. This includes Navy Training and Administration of the Reserves(TARs),Marine Corps Active Reserve(ARs)and Coast Guard Reserve
Program Administrator(RPAs). Active Duty status also applies to a Uniformed Service member who is an active duty commissioned officer of the U.S.
Public Health Service or the National Oceanic and Atmospheric Administration(NOAA Commissioned Corps).
Coverage Under the SCRA is Broader in Some Cases
Coverage under the SCRA is broader in some cases and includes some categories of persons on active duty for purposes of the SCRA who would not be
reported as on Active Duty under this certificate. SCRA protections are for Title 10 and Title 14 active duty records for all the Uniformed Services periods.
Title 32 periods of Active Duty are not covered by SCRA,as defined in accordance with 10 USC§101(d)(1).
Many times orders are amended to extend the period of active duty,which would extend SCRA protections.Persons seeking to rely on this website
certification should check to make sure the orders on which SCRA protections are based have not been amended to extend the inclusive dates of service.
Furthermore,some protections of the SCRA may extend to persons who have received orders to report for active duty or to be inducted,but who have not
«_ actually begun active duty or actually reported for induction. The Last Date on Active Duty entry is important because a number of protections of the SCRA
extend beyond the last dates of active duty.
Those who could rely on this certificate are urged to seek qualified legal counsel to ensure that all rights guaranteed to Service members under the SCRA
are protected
WARNING: This certificate was provided based on a last name,SSN/date of birth,and active duty status date provided by the requester. Providing
erroneous information will cause an erroneous certificate to be provided.
Certificate ID: HBJ636503083160
r-
f't:`f E i#()! _) it
IN THE COURT OF COMMON PLEAS nil AUL 10 Aid 2 �
OF CUMBERLAND COUNTY, PENNSYLVANIA
CUMBERLAND LOUT F
MANUFACTURERS AND TRADERS * P E N H S Y LVA N P,
TRUST COMPANY,
One M&T Plaza
Buffalo, New York 14203 CIVIL DIVISION
* Case No.: q0'1V1[Tffffi
Plaintiff,
*
V. COMPLAINT FOR CONFESSION
* OF JUDGMENT OF MONEY
PHILIP KATZ,
154 Erford Road, Apt. 412
Camp Hill, Pennsylvania 17011
*
Defendant.
*
* * * * * * * * * * * * * *
NOTICE UNDER RULE 2958.1
OF JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
To: Philip Katz
A judgment in the amount of$30,608.40 plus interest after July 2, 2014, has been entered
against you and in favor of the Plaintiff, Manufacturers and Traders Trust Company, without any
prior notice or hearing based on a confession of judgment contained in a written agreement or other
paper allegedly signed by you. The Sheriff may take your money or other property to pay the
judgment at any time after thirty (30) days after the date on which this notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or property from
being taken.
YOU MUST FILE A PETITION SEEKING RELIEF FROM THE
JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY
(30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS
SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.
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 REDUCED FEE OR NO FEE:
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, Pennsylvania 17013
717-249-3166 or 1-800-990-9108
Shaan S. Chima, Esquire
P.A. Bar No. 312429
GEBHARDT & SMITH LLP
One South Street, Suite 2200
Baltimore, Maryland 21202-3281
(410) 385-5109
Counsel for Manufacturers and Traders
Trust Company
2
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
MANUFACTURERS AND TRADERS
TRUST COMPANY,
One M&T Plaza
Buffalo, New York 14203 CIVIL DIVISION
* Case No.: vi`1 Gird
Plaintiff,
*
V. COMPLAINT FOR CONFESSION
* OF JUDGMENT OF MONEY
PHILIP KATZ,
154 Erford Road, Apt. 412
Camp Hill, Pennsylvania 17011
*
Defendant.
*
* * * * * * * * * * * * * *
NOTICE PURSUANT TO RULE 236
To: Philip Katz
Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a
Judgment entered by confession has been entered against you.
If you have any questions concerning this notice, please call:
Shaan S. Chima, Esquire at 410-385-5109.
Prothonotary, Cumberland County
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
RonnyRAnderson RILED -OF f_IC4
Sheriff t, GF 7 HE PROTHONOTARY
�i �tt�n�ryy�d
Jody S Smith � .2014
� � �� AUGChief Deputy 22 PM 3: 10
Richard W Stewart =* CUMBERLAND COUNTY
Solicitor PENNSYLVANIA
OFFICE OF THE w3 ERiFF
Manufacturers and Traders Trust Company
vs.
Philip Katz
Case Number
2014-4042
SHERIFF'S RETURN OF SERVICE
08/19/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry
for the within named Defendant to wit: Philip Katz, but was unable to locate the Defendant in his bailiwick.
The Sheriff therefore returns the within requested Complaint in Confession of Judgment and Notice
Pursuant to Rule 236 as "Not Served" at 154 Erford Road, Apt. 412, East Pennsboro, Camp Hill, PA
17011.Nine attempts at service were made but deputies were unable to make contact with anyone to
effectuate service before the Complaint expired.
SHERIFF COST: $78.85 SO ANSWERS,
August 19, 2014 RONW R ANDERSON, SHERIFF
(c) CountySu to Sheriff, Teleoso(t, Inc.
IN THE COURT OF COMMON PLEAS ,7 iffiE PRO PliOFICh10L'i
Fit, t.)
OF CUMBERLAND COUNTY, PENNSYLVANIA 4 11 SEP 23 AN 10: 19
AND TRADERS
MANUFACTURERS
TRUST COMPANY,
One M&T Plaza
Buffalo, New York 14203
Plaintiff,
V.
PHILIP KATZ,
154 Erford Road, Apt. 412
Camp Hill, Pennsylvania 17011
Defendant.
*
CumBERL
PE SY7(j/AVI,LIINTy
CIVIL DIVISION
Case No.: 2014-04042
COMPLAINT FOR CONFESSION
OF JUDGMENT OF MONEY
PRAECIPE TO REINSTATE COMPLAINT FOR SERVICE BY PLAINTIFF
TO THE PROTHONOTARY:
Pursuant to Rule 401(b) of the Pennsylvania Rules of Civil Procedure, please kindly reinstate
the Complaint for Confession of Judgment filed in this action and forward the same to the
undersigned counsel for service upon the Defendant. Once all enclosed copies of the Complaint are
reinstated, please forward all copies of the reinstated Complaint back to undersigned counsel's
attention so that I may forward to the Sheriff.
Date: September 22, 2014
Shaan S. Chima, Esquire
P.A. Bar No. 312429
GEBHARDT & SMITH LLP
One South Street, Suite 2200
Baltimore, Maryland 21202
(410) 752-5830
Counsel for Plaintiff, Manufacturers and
Traders Trust Company
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
0,„„,2 rt n rpt; _ LL HE PROTHONQTA�s't"
OFFICE QF THEE RIFF
2014 OCT 21 PM 2: 59
CUMBERLAND COUNTY
PENNSYLVANIA
Manufacturers and Traders Trust Company
vs.
Philip Katz
Case Number
2014-4042
SHERIFF'S RETURN OF SERVICE
10/15/2014 07:25 PM - Deputy Shawn Harrison, being duly sworn according to law, served the requested Complaint
for Confession of Judgment of Money, Confession of Judgment, Notice U •er Rule :58.1 of Judgment
and Execution Thereon and Notice Pursuant to Rule 236 by handing a copy t► - person
representing themselves to be Debbie Katz, wife, who accepted as "Ad / on S harge" for Philip
Katz at 154 Erford Road, Apt. 412, East Pennsboro, Camp Hill, PA 170 /
SHERIFF COST: $44.95
c
WN HASON, DEPUTY
SO ANSWERS,
October 15, 2014 RONIN' R ANDERSON, SHERIFF
(c) CountySuito Sheriff, Teleosoft, Inc.