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Home My WebLink About05-1898 CLEVELAND BROTHERS EQUIPMENT CO., INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. CIVIL ACTION NO, oS - IN {!J'u~c'-- CIVIL ACTION- CONFESSION OF JUDGMENT STEVE HURLEY D/B/A S&S EXCAVATING. FOR POSSESSION Defendant 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, Steve Hurley D/B/A S&S Excavating, and confess judgment in favor of the Plaintiff, Cleveland Brothers Equipment Co., Inc., and against the Defendant for possession of the following property: . One Caterpillar 963 Track Loader SIN 20Z02709 . One Caterpillar 963 Track Loader SIN 21 Z03516 and costs of suit. ~~A (L R P. DOWNEY (59891) JUSTIN G. WEBER (89266) Pepper Hamilton LLP 200 One Keystone Plaza North Front and Market Streets Post Office Box II8l Harrisburg, PA 17108-1181 (717) 255-1155 Date: April 12,2005 Attorneys for Plaintiff Cleveland Brothers Equipment Co., Inc. ~ ( CLEVELAND BROTHERS EQUIPMENT CO., INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff. CIVIL ACTION NO. OS; - I f'r P {!~~c{ ~ vs. STEVE HURLEY D/B/A S&S EXCAVATING, CIVIL ACTION- CONFESSION OF JUDGMENT FOR POSSESSION Defendant. COMPLAINT IN CONFESSION OF JUDGMENT NOW COMES plaintiff, Cleveland Brothers Equipment Co., Inc, ("Cleveland Brothers"), by its undersigned attorneys, and files this complaint for judgment by confession for possessIOn: PARTIES 1. Cleveland Brothers is a Delaware corporation with an office located at 5300 Paxton Street, Harrisburg, Dauphin County, Pennsylvania, 171] I. 2. On information and belief, defendant Steve Hurley D/B/A S&S Excavating ("Hurley") is a Pennsylvania resident with an address at 50 Fry town Road, Newville, Cumberland County, Pennsylvania 17241. INSTRUMENT 3. On or about October 25,2002, Hurley entered into an agreement whereby Hurley executed and delivered to Cleveland Brothers a Security Agreement for the payment of the amount due, together with interest on any delinquent payment at 12% per annum (the "Security Agreement"). (A true and correct copy of the Security Agreement is attached hereto as Exhibit "A",) 4. The Security Agreement gave Cleveland Brothers a security interest in: . One Caterpillar 963 Track Loader SIN 20Z02709 . One Caterpillar 963 Track Loader SIN 21 Z03516 (collectively "the Equipment"). 5. On information and belief, the Equipment is currently located at 50 Fry town Road, in or near the municipality of Newville, in the county of Cumberland, in tbe Commonwealth of Pennsylvania. 6. Pursuant to the Security Agreement, Hurley wa~ obligated to pay Cleveland Brothers $281,705.22, in installments as outlined in Schedule A to the Security Agreement, commencing in November 2002. JUDGMENT NOT BEING ENTERED AGAINST A NATURAL PERSON IN CONNECTION WITH A CONSUMER CREDIT TRANSACTION 7. The judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. NO ASSIGNMENT OF THE INSTRUMENT NO PRIOR ENTRY OF JUDGMENT ON THE INSTRUMENT 8. The Security Agreement was previously assigned, but was reassigned and is now held by Cleveland Brothers. 9. Judgment has not been entered on the Security Agreement in any jurisdiction. DEFAULT ]0. The Security Agreement required Hurley to pay Cleveland Brothers the amount due commencing November 2002, II. To the date of this Complaint, Hurley failed to pay the outstanding amounts due to Cleveland Brothers under the Security Agreement, thereby constituting a default. -2- 12. In the Security Agreement, Hurley authorized "the Prothonotary or any attorney of any court of record" to "appear for and confess judgment. . . in any action to recover possession of the equipment" in the event of a default. ] 3. Cleveland Brothers is entitled to immediate possession of the Caterpillar 963 Track Loader SIN 20Z02709 and the Caterpillar 963 Track Loader SIN 21Z03516. INSTRUMENT NOT MORE THAN TWENTY YEARS OLD 14. Hurley executed the Security Agreement less than twenty years ago. -3- DEMAND FOR JUDGMENT WHEREFORE, as authorized by the warrant contained in the Security Agreement, Cleveland Brothers demands judgment for possession of the equipment and costs of suit. P. DOWNEY (59891) J STIN G. WEBER (89266) Pepper Hamilton LLP 200 One Keystone Plaza North Front and Market Streets P.O. Box 1181 Harrisburg, P A 17108-1181 (717) 255-1155 (717) 238-0575 (FAX) Attorneys for Plaintiff Cleveland Brothers Equipment Co., Inc. Dated: April 12,2005 -4- CLEVELAND BROTHERS EQUIPMENT CO., INe., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. CIVIL ACTION NO. STEVE HURLEY D/B/A S&S EXCAVATING CIVIL ACTION- CONFESSION OF JUDGMENT FOR POSSESSION Defendant CERTIFICATE OF RESIDENCE I here by certify that the last known of the address of the plaintiff and defendant are as follows: Cleveland Brothers Equipment Co., Inc, 5300 Paxton Street Post Office Box 2535 Harrisburg, PA 17105 Steve Hurley D/B/A S&S Excavating 50 Fry town Road Newville, PA 17241 B AN P. DOWNEY (59891) STIN G. WEBER (89266) Pepper Hamilton LLP 200 One Keystone Plaza North Front and Market Streets Post Office Box 1181 Harrisburg, PA 17108-1181 (717) 255-1155 Date: April 12, 2005 Attorneys for Plaintiff Cleveland Brothers Equipment Co., Inc. VERIFICATION I, Jeffrey L. Grimes, hereby state that I am the Credit Manager for Cleveland Brothers Equipment Co., Inc., and am authorized to make this verification on its behalf. I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that the statements in said document are made subject to the penalties of 18 Pa.C.S. ~ 4909 relating to unsworn falsification to authorities. L. GRIMES ------ 1-' Cleveland Brothers I HARRISBURG-MAIN OFFICE 5300 PAXTON ST.- PHONE- 711-.564-2121 WILKES-BARRE 910 WU.KES-BARRE TWP. BLVD.-PHONE 711_&22_8141 C~T FRACKVILLE fENNSYLV~IA ROUTE61.PHONE: 717.874-3560 WHITE DEER OLD ROUTE Is..PHQNE. 717-538-:2.551 STATE COLLEGE 2955STEWAllT DRlVE--PHONE: 814.237-1!:J: PHlUPSBURG 307 ALDER. ST.-PHONE- 814_342-4210 MANSFIELD LANCASTER U.S. ROUTE 6 EAST-PHONE: 71'.642-7171 ROUTE 212.PHONE: 717.8S9-<l9()S SECURITY AGREEMENT Made on October 25. 2002 , between Steve Hurley DBA S&S Excavating 50 Fry town Road, Newville, PA, 17241 (being theidebtor and herein caned "Buyerll), a corporation, partnership or individual. said address being Buyer's mailing address and place of business or residence ~t which the propeny covered hereby will be located, and Cleveland Brothers Equipment Co" Inc., 5300 Puton Street, Harrisburg, Pennsylvania 17105 (seJ;:ured party and herein called "SeUerll). said address being Seller's address at which information concerning Seller's security interest hereunder ma) be obtained. Buyer and SeHer have entered into a certain sales order contract (hereinafter referred to as "the contract") pursuant to which SeneT has agreed t sell and Suyer has agreed to purchase certain equipment. As security for payment of the total due hereon as set forth below, including but not limited to any and all clflarges related thereto, and faT any amount which may become due and owing SeHer by Buyer pursuant to the contract for any reason, as wen as to secure thie payment and performance by Buyer of any other obligation, which Buyer may have to Seller, either now existing or hereafter incurred or accrued; Buyer dt)es hereby give Seller a security interest in the equipment. machinery, and/or goods described below, an of which is hereinafter referred to as "the equipmel1l" : DESCRIPTION Refinance: One Caterpillar 963 Track Loader SIN 20202709 One Caterpillar 963 Track Loader SIN 21203516 F.O,B. BuyeTiwill promptly notify Seller and in writing, of any discontinuance of any place of business, the establishment of any new place of business, or any change of location of said property. PRICE ........,..'...........'.........................., $ LESS TRADE ALLOWANCE ........... $ BALANCE............................................ $ SALES TAX ..............,..,..,.................... $ HAULING .......................,.,..,............... $ OPEN ACCOUNT ............................... $ INSURANCE '...........,.......................... $ FILlNGITERM FEE ........................... $ TOTAL ...........,...................................., $ CASH WITH ORDER......,..........., $ CASH ON DELIVERy................. $ RENTAL PAYMENTS .............'..' $ 244,894.39 0.00 244,894,39 0.00 0,00 2,998.05 0.00 150,00 248,042,44 0,00 0.00 0,00 NET BALANCE ........................... $ FINANCE CHARGE .............,...., $ TOTAL DUE................................. $ 248,042.44 33,662,78 281,705.22 Which sum buyer( s) agree( s) to pay at: Allfirs! Bank in *25 installments of See Schedule "A" each, and a final installme, $141,705,22 said installments commencing Noverriber. .2 as evidence by promissory note(s), Any delinquent paymeljps bear interest at 12% from the date of default. Buyer agrees: at all times ~o 1.;:eep t~e equiQment ;nsurec rn such fonn, in such form, in such companies, in such amounts and against such risks as ma~ be occepL<lbte ) seller, with provisions satisfactory to Seller for payment of all losse~: thereunder to Seller as its interests may appear, and, if required, to deposit the policies with Seller; an';' sums, ~ceived by SeUer in payment of losses under said policies may, at Seller's option, be applied on toe balance of the amount owed to Seller by Buyer whether or not the same if ttien ue or payable, PI' may be delivered by Seller 10 Buyer f(lr the purpose of repairing or restoring the equipment. Buyer also agrees: that 11.11 equipment, accessories and parts now or ereafter attached or added to the equipment or used in connection therewith shall at once become part thereof; and that loss, injury or destruction of said equipment shall not release f reduce Buyer's obligations to Seller, pursuant to toe contract, this Agreement, or any promissory notes executed or delivered by Buyer to Seller with respect to the contract. In ddilion, Buyer agrees: to keep the equipment in as good condition as when received, reasonable wear only excepted, and in so doing and at all other times to keep Ihe equipmem free nd clear of all liens and encumbrances, voluntary or involuntary; not to sell, Qr otheT\\lise transfer any interest of Buyer in the equipment; not 10 remove the equipment form the ddress at which it is to be located as set forth except for temporary periods in the nonnal and customary use thereof; to immediately notify Seller in writing of any seizure of , levy :pon, loss of possession of, destruction of, or damage to the equipment; and to perform any defaulted agreements of Buyer; any amounts expended in such performance, with interest hereon shall be payable by Buyer to Seller on demand and the security interest given herein shall further serve as security for the reimbursement thereof to Seller. Buyer will pay all osts of filing any financing, continuation, or tennination statements with respect to the security interest created by this Agreement; Seller is hereby appointed Buyer's attorney in fact :) do at Seller's option and at Buyer's expense, all acts and things which Seller may deem necessary to perfect and continue perfected the security interest created by this Agreement nd to protect [he equipment. Buyer shall be in default hereunder upon failure to pay when due any amount payable pursuant to the contact or under any promissory note which may have been given ;) Seller with respect thereto or upon failure to observe and perfonn any of Buyer's obligations pursuant to tois Agreement, or if proceedings, in which Buyer is alleged to be insolvent Ir unable fo pay Buyer's debts as they mature is instituted by or aga.inst Buyer under any of the provisions of the Bankruptcy Act or any other law, or if Buyer makes an assignment or ~e benefit of creditors. Whenever Buyer is in default pursuant to the contract and all other sums for which contract, said promissory notes, or this Agreement, the entire unpaid f31ance owing to Seller by Buyer pursuant to the contract and all other sums for which Buyer is liable to Seller pursuant to the contract, said promissory notes, or this Agreement shall ltCome immediately due and payable at Seller'S option without notice to Buyer, and Seller may proceed to enforce payment of the same and to exercise any or all of the rights and emedies afforded by law or equity, and specifically but not exclusively, those remedies afforded by the Unifonn Commercial code as enacted in the Commonwealth of Pennsylvania, :nd upon demand by seller, Buyer shall assemble the equipment and make it available to Seller at a place reasonably convenient to Buyer and Seller. Buyer hereby authorizes the Prothonotary or any attorney of any court of record, whenever Buyer ~s in default pursuant to the contract and/or said promissory notes ndlor this Agreement, to appear for and confess judgment as often as necessary against Buyer (1) in any action to recover possession of the equipment and (2) for all sums payable lY Buyer pursuant to the contract, and/or this Agreement and/or said promissory notes, together with 18% toereof added as a collection fee. Buyer waives all errors and appeals, the ight to stay of ex.ecution, and the benefit of aU exemption laWs. of any state now or hereafter in effect. Delay in the exercise of Seller's rights, whether under the contract, this Agreement or said promissory notes, shall not constitute a waiver thereof. The waiver of any lefault shall not be a waiver of any subsequent default. Buyer acknowledges that no oral representations, warranties or guaranties have been made by Seller to Buyer. Buyer acknowledges that Seller has given notice to Buyer that Seller may assign and/or negotiate to a third party Seller's rights (l) in the contract, (2) in this Agreement, Lt\d (3) in said promissory noles. all for a valuable consideration. To induce said third party to pay said valuable consideration. To induce said third party to pay said valuable :onsideration therefor, Buyer, intending legally to be bound hereby, agrees with said third party that (a) upon such assignment and negotiation or other transfer, all rights, powers and emedies of Seller hereunder and under said promissory notes and pursuant to the contract shall belong to and be exercisable by said third party including but not limited to the power Lt\d right to confess judgement(s) and, upon receipt of notice of such assignment or negotiation or other transfer, Buyer will render perfonnance of Buyer's obligations under the :ontract, under this Agreement, and under said promissory notes to said third party, rather than to Seller, and (b) in any action brought by said third party against Buyt:r to recover any :ums under the contract, under this Agreement, or under said promissory notes, or to recover possession of the equipment, Buyer will not assert as a defense, countercla.im, setoff, :ross complaint, or otherwise any claim, known or unknown, which Buyer now has or hereafter acquires against Seller, except that Buyer has paid the total amount due Seller )UfSuant to the contract. The preceding clause (b) shall not apply ifsaid equipment is "consumer goods" as defined in the Uniform Commercial Code of Pennsylvania. Despite any :uch assignment, Seller shan remain liable to Buyer for the performance of an of Seller'S obligations to Buyer, including those arising hereunder. ;teve Hurley DBA S&S Excavating (seal) ~o,~ (name) (title) Iy (name) (title) y (name) (title) LEVELAND BROTHERS EQUIPMENT CO., INC. ~L. Grimes, Assistant Secretary ., SCHEDULE "A" Steve Hurley DBA S&S Excavating Payments 1-2 $ 2,500.00 Payments 3-5 SKIP Payments 6-13 $ 2,500.00 Payment 14 $ 75,000.00 Payments 15-17 SKIP Payments 18-25 $ 5,000.00 Payment 26 $141,705.22 , c IC) 0 -iQ.. ~ -- it ...0 ~ ...., V) ,....c.) 0 f.~ \) ~_n 'n F -- -- ,;... .-1 ~ -r ~ --" ;-;1p ~ )....> il -0 ';):~J -'-:r} ~ G lJ'-' ~ w \U V'( }.,~ ~ b ~ ~ C.-.;} N ;:.., r- ----Z, co .<: i I JLEVELA, ND BROTHERS EQUIPMENT ro., INC., Plaintiff, vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. CC - / ni' G~j...~02-"'1 TEVE HURLEY D/B/A S&S XCA V A TING, Defendant. CIVIL ACTION-CONFESSION OF JUDGMENT FOR POSSESSION NOTICE OF ENTRY OF JUDGMENT TO; Steve Hurley D/B/A S&S Excavating Pursuant to the requirements of Pa.R.C.P. No. 236, you are hereby notified that on April , 2005, judgment by confession was entered against you for possession of . One Caterpillar 963 Track Loader SIN 20202709 . One Caterpillar 963 Track Loader SIN 21203516 and costs of suit. :4 8A/J-L ) i. / Prothonotary '" DATE: cL./ / /,~ /I"N I { YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty A venue Carlisle, PA 17013 717-249-3]66 CLEVELAND BROTHERS EQUIPMENT CO., INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, vs. CIVIL ACTION NO. oS' -IN? Cruel T'VLh- STEVE HURLEY D/B/A S&S EXCAVATING, Defendant. CIVIL ACTION- CONFESSION OF JUDGMENT FOR POSSESSION NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS TO: Steve Hurley D/B/A S&S Excavating. A judgment for possession of . One Caterpillar 963 Track Loader SIN 20Z02709 . One Caterpillar 963 Track Loader SIN 21Z03516 and costs of the suit, has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment for possession contained in a written agreement or other paper allegedly signed by you. The Sheriff may take your property to satisfy 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 MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Dated: April 12, 2005 Cumberland County Bar Association 2 Liberty Avenue Carlisle, P A 17013 717-249-3166 P. DOWNEY (59891) IN G. WEBER (89266) Pepper Hamilton LLP 200 One Keystone Plaza North Front and Market Streets Post Office Box 1181 Harrisburg, Pennsylvania 17108-1181 (717) 255-1155 Attorneys for Plaintiff Cleveland Brothers Equipment Co., Inc. ~' (') C' ;{' ,.., <:::7:") c:'? ;:',n ~,; :;::,:) (,,) (,.) f",) CD