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HomeMy WebLinkAbout02-1354IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, VS. MARK A. DAVIS and JANET G. DAVIS, Defendants. CIVIL DIVISION NO.: ~ CONFESSION OF JUDGMENT Pursuant to the authority in the Warrant of Attorney contained in the aforesaid $60,000.00 Note and $23,250.00 Note, copies of which are attached to the Complaint filed in this action, I appear for the Defendants and confess judgment in favor of Plaintiff and against Defendants as follows: Principal Interest to 3/11/02 Late Charges Attorneys' Fees (10% of the total amount due) TOTAL $23,250.00 Note $23,250.00 $ 987.27 $ 167.09 $ 2,440.43 $26,844.79 with interest on the principal sum ($23,250.00) from March 11, 2002 at $5.65 per diem. $60,000.00 Note Principal Interest to 3/11/02 Attorneys' Fees (10% of the total amount due) TOTAL $60,000.00 $ 1,119.37 $ 6,111.93 $67,231.30 with interest on the principal sum ($60,000.00) from March 11, 2002 at $9.58 per diem. GRAND TOTAL $94,076.09 with interest on the principal sums ($83,250.00) from March 11, 2002 at $15.23 per diem. JAMES~ CONNELLY LLP By: / ~.~ II l/ It.tV I/ Scot~A.]D~, Esquirg PA ID #55650 Attorneys for Defendant Pro Hac Vice IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, Defendants. CIVIL DIVISION NO.: (.3.2 -- AFFIDAVIT OF BUSINESS TRANSACTION COMMONWEALTH OF PENNSYLVANIA : : COUNTY OF DAUPHIN : SS: Before me, the undersigned authority, a Notary Public in and for said County and Commonwealth, personally appeared Scott A. Dietterick, Esquire, attorney for and authorized representative of Plaintiff who, being duly sworn according to law, deposes and says that to the best of his knowledge, information and belief the Note, the original or copy of which is attached to the Complaint filed in this action, was executed by the Defenglants in conjunction with a business transaction, and was not executed for consumer o~ Scott A./Di~terick, Esquire SWORN TO AND SUBSCRIBED BEFORE ME THIS [~2~ DAY OF ~*z~ ,2002. Notary Public MY COMMISSION EXPIRES: NOTARIAL SEAL MICHELLE ELLIOTT, NOTARY PUBLIC HUMMELSTOWN, DAUPHIN COUNTY, PA MY COMMISSION EXPIRES JUNE 9, 2003 IN THE COURT OF COMMON PLEAS OF FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, : : Defendants. : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NO.: NOTICE OF ORDER~ DECREE OR JUDGMENT TO: ( ) Plaintiff (X) Defendant - Mark A. Davis ( ) Additional Defendant(s) You are hereby notified that an Order, Decree or Judgment was entered in the above-captioned proceeding on f~_~ ( ) A copy of the Order or Decree is as follows: or (X) The judgment is as follows: $94,076.09 with interest on the principal sums ($83,250.00) from March 11, 2002 at $15.23 per diem. Prothonotary IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANiA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, CIVIL DIVISION . Plaintiff, : NO.: C3~ ~ Defendants. NOTICE OF ORDER, DECREE OR JUDGMENT TO: ( ) Plaintiff (X) Defendant - Janet G. Davis ( ) Additional Defendant(s) You are hereby notified that an Order, Decree or Judgment was entered in the above-captioned proceeding on ( ) A copy of the Order or Decree is as follows: or (X) The judgment is as follows: $94,076.09 with interest on the principal sums ($83,250.00) from March 11, 2002 at $15.23 per diem. Prothonotary IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, : . : : : Defendants. : CIVIL DIVISION NO.: AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA : : COUNTY OF DAUPHIN : SS: I, Scott A. Dietterick, Esquire, attorney for and authorized representative of Plaintiff, Eastern Savings Bank, FSB, hereby certify, subject to the penalties of 18 Pa.C.S.A. §4904, that Defendants, Mark A. Davis and Janet G. Davis, are not in the military service of the United States of America to the best of my knowledge, infomlation and beli~~ Scott A.lDietterick, Esquire SWORN TO AND SUBSCRIBED BEFORE ME THIS /~AY OF C~(~/~ ,2002. Notary Public My Commission Expires: NOTARIAL SEAL MICHELLE ELUOTT, NOTARY PUBLIC HUMIIELSTOWN, DAUPHIN COUNTY, PA MY COMMISSION EXPIRES JUNE 9, 2003 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, Defendants. VS. MARK A. DAVIS and JANET G. DAVIS, CIVIL DIVISION : : : NO.: -- I. Z'y ISSUE NO.: : TYPE OF PLEADING: . : CIVIL ACTION - COMPLAINT IN CONFESSION OF. JUDGMENT I hereby certify that the address of Plaintiff is: P.O. Box "T', 20 South Main Street Chambersburg, PA 17201 and the last known address of Defendants is: 107 Hammond Road, Shippensburg, PA 17257 JAMES, SMr CONNELLY By: ~, DURKIN & S ~.. I ~tterick, Esquire Attorneys for Plaintiff CODE - FILE ON BEHALF OF: Farmers and Merchants Trust Company of Chambersburg, Plaintiff COUNSEL OF RECORD FOR THIS PARTY: Scott A. Dietterick, Esquire PA ID #55650 James, Smith, Durkin & Connelly LLP P.O. Box 650 Hershey, PA 17033 (717) 533-3280 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, : : Defendants. : CIVIL DIVISION NO.: CIVIL ACTION - COMPLAINT IN CONFESSION OF JUDGMENT AND NOW, comes Farmers and Merchants Trust Company of Chambersburg, Plaintiff, by and through its attorneys, James, Smith, Durkin & Connelly LLP, and files this Complaint in Confession of Judgment as follows: 1. Farmers and Merchants Trust Company of Chambersbsurg is a financial institution existing under the laws of the United States of America, with its principal place of business located at P.O. Box "T", 20 South Main Street, Chambersburg, Pennsylvania 17201. 2. Defendants, Mark A. Davis and Janet G. Davis, are adult individuals whose last known address is 107 Hammond Road, Shippensburg, Pennsylvania 17201. 3. On or about April 21, 2000, Defendants executed and delivered a certain Promissory Note in favor of Plaintiff in the original principal amount of $23,250.00 ("$23,250.00 Note"), which Note authorized the confession of judgment against Defendants. A copy of said Note, which copy is a true and correct reproduction of the original $23,250.00 Note, is marked Exhibit "B", attached hereto and made a part hereof. 4. On or about October 31, 2000, Defendants executed and delivered a certain Promissory Note in favor of Plaintiff in the original principal amount of $60,000.00 ("$60,000.00 Note"), which Note authorized the confession of judgment against Defendants. A copy of said Note, which copy is a true and correct reproduction of the original $60,000.00 Note, is marked Exhibit "A", attached hereto and made a part hereof. COUNT I CONFESSION OF JUDGMENT UNDER $23,250.00 NOTE 5. Plaintiff hereby incorporates by reference its averments in Paragraphs 1 through 4 as if set forth fully herein. 6. The $23,250.00 Note has not been released, transferred or assigned. 7. Judgment has not been entered against the Defendants on the $23,250.00 Note in any jurisdiction. 8. The aforesaid $23,250.00 Note authorizes the entry of judgment without default thereon or the occurrence of a condition precedent. 9. The judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. The itemization of the amount due, including interest and attorneys' fees as 10. authorized by the $23,250.00 Note, is as follows: Principal $23,250.00 Interest to 3/11/02 $ 987.27 Late Charges $ 167.09 Attorneys' Fees $ 2,440.43 (10% of the total amount due) TOTAL $26,844.79 with interest on the principal sum ($23,250.00) fxom March 11, 2002 at $5.65 per diem. WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the $23,250.00 Note, demands judgment against the Defendants in the mount of $26,844.79 with interest on the principal sum from March 11, 2002 at $5.65 per diem. COUNT II CONFESSION OF JUDGMENT UNDER $60,000.00 NOTE 11. Plaintiff hereby incorporates by reference its averments in Paragraphs 1 through 10 as if set forth fully herein. 12. The $60,000.00 Note has not been released, transferred or assigned. 13. Judgment has not been entered against the Defendants on the $60,000.00 Note in any jurisdiction. 14. The aforesaid $60,000.00 Note authorizes the entry of judgment without default thereon or the occurrence of a condition precedent. 15. The judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 16. The itemization of the amount due, including interest and attorneys' fees as authorized by the $60,000.00 Note, is as follows: Principal Interest to 3/11/02 Attorneys' Fees (10% of the total amount due) $60,000.00 $ 1,119.37 $ 6,111.93 TOTAL $67,231.30 with interest on the principal sum ($60,000.00) from March 11, 2002 at $9.58 per diem. WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the $60,000.00 Note, demands judgment against the Defendants in the amount of $67,231.30 with interest on the principal sum from March 11, 2002 at $9.58 per diem. WHEREFORE, Plaintiff, as authorized by the warrants of attorney contained in the $60,000.00 Note and the $23,250.00 Note, demands judgment in its favor and against Defendants in the total sum of $94,076.09 with interest on the principal sums ($83,250.00) from March 11, 2002 at the rate of $15.23 per diem, and brings said instrument to Court to recover the said sum. Dated: JAMES, S~~& CONNELLY LLP By: Scott A.~~ ~squi; PA ID #55650 Attorneys for Plaintiff P.O. Box 650 Hershey, PA 17033 (717) 533-3280 EXHIBIT "A" PROMISSORY NOTE ~ : ~h D~l;e M~tU~: ~i.r ~ A~=~un~: Of~ ~erl !fiitiatS: ........ R~erences n the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing ...... has been omitted due to text length limitations. Borrower: Mark A. Davts ($SN: 005-50-9557) Lender: Janet G. Davis (SAN: 090-56-9850) 107 Hammond Road Shippensburg, PA 17257 Farmers and Merchants Trust Company of Chambersburg Commercial Services Department 20 South Main Street P. O. Box 6010 Chambersburg, PA 17201-6010 (717) 264-6116 Principal Amount: $60,000.00 Initial Rate: 10.500% Date of Note: October 31, 2000 PROMISE TO PAY. Mark A. Davis and Janet G. Davis ("Borrower~) jointly and severally promise to pay to Farmers and Merchants Trust Company of Chambersburg (~Lender"), or order, In lawful money of the United States of America, the principal amount of Sixty Thousand & 00/100 Dollars ($60,000.00), together with Interest on the unpaid prthclpal balance from October 31, 2000, until paid in full. PAYMENT. Borrower will pay this loan in one principal payment of $60,000.00 plus interest on July 10, 2001. This payment due on July 10, 2001, will be for all principal and all accrued interest not yet paid. In addition, Borrower will pay regular monthly payments of all accrued unpaid interest due as of each payment date, beglnnthg December 10, 2000, with all subsequent interest payments to be due on the same day of each month after thaL Unless otherwise agreed or required by applicable law, payntents will be applied fftst to accrued unpaid interest, then to principal, and any remaththg amount to any unpaid collection costs and late charges. The annual interest rate for this Note is computed on a 365/360 basis; that Is, by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number ct days the principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an independent index which is the New Your Prime Rate as published in the Wall Street Journal. When a range of rate has been published, the higher of the rates will be used {the "Index'). The Index is not nocessarliy the lowest rate charged by Lender on its loans. If the Index becomes unavaitable during the term of this loan, Lender may designate a substitute index after notice to Borrower. Lender will tell Sorrower the current Index rate upon Borrower's request. The interest rate change will not occur more often than each time there has been A change in the Index. Borrower understands that Lender may make loans based on other rates as well. The thdex currently Is 9.500% par annum. The Interest rate to be applied to the unpaid principal balance of this Note will be at a rate of 1.000 percentage point over the Index, resulting In an initial rate of 10.500% per annum. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable taw. PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of'Borrower's obligation to continue to make payments under the payment schedule. Rather, early payments will reduce .the principal balance due. Borrower agrees not to send Lender payments marked "paid in full", "without recourse", or similar language. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates.that the.payment constitutes "payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of e disputed amount must be mailed Or delivered to: Farmers and Memhants Trust Company of Chambersburg, P. O. Box 6010 Chambersburg, PA 17201-6010. LATE CHARGE. I~a payment is 16 days or more late, Borrower will be charged 6.000% of the regularly scheduled payment. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, Lender, at its option, may, if permitted under applicable law, increase the variable interest rate on this Note to 3.000 percentage points over the Index. The interest rate wilt not exceed the maximum rate permitted by applicable law. if judgment is entered in connection with this Note, interest wilt continue to accrue on this Note after judgment at the interest rate applicable to this Note at the time judgment is entered. DEFAULT. Each of the following shall constitute an event of default (='Event of Default") under this Note: Payment Default. Borrower fails to make any payment when due under this Note. Other Defaults. Borrower lails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or in any of the related documents or to comply with or to pedorm any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Note or the related documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Death or Insolvency. The death of Borrower or the dissolution or termination of Borrower's existence as a going business, the insolvency of Borrower, the appointment of a receiver for any part of Borrower's propedy, any assignment for the bane[it of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Creditor or Forfeiture Proceedings. Con~nencoment of foreclosure or fodeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any gavemmental agency against any cbllataral securing the loan. This includes a gamishment of any of Borrower's accounts, ir~ludtng deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or fodeiture proceeding and if Borrower gives Lender written notice of the creditor or fodeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretioc, as being an adequate reserve or bond for the disputs. Events Affecting Guarantor. Any of the preceding events cccurs with respect to any guarantor, endorser, surety, or accommodation party of any of the indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note. In the event of a death, Lender, at its option, may, but shall not be required to, permit the guarantor's estate to assume unconditionally the obligations arising ur,:ler the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of Default. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of this Note is impaired, Insecurity, Lender in good faith believes itself insecure. Cure Provisions. If any default, other than a default in payment is curable and if Borrower has not been given a notice of a breach of the same provision of this Note within the preceding twelve (12) months, it may be cured (and no event of default will have occurred) if Borrower, after receiving written notice from Lender demanding cure of such default: (1) cures the befault within fifteen (15) days; or (2} if the cure requires more than fifteen (15) days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the betault and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as so~3 as reasonably practical, LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance on this Note and ail accrued unpaid interest immediately due, and then Borrower will pay that amount. A'ITORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. GOVERNING LAW. This Note will be governed by, construed and enforced in accordance with federal law and the laws of the Commonwealth of Pennsylvania. This Note has been accepted by Lender in the Commonwealth of Pennsylvania. CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Franklin County, Commonwealth of Pennsylvania. DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $25.00 if Borrower makes a payment on Borroweris loan and the check or preauthorized charge with which Borrower pays is later dishonored. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether PROMISSORY NOTE (Continued) Page 2 checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoif would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the debt against any and all such accounts SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender and its successors and assigns. GENERAL PROVISIONS. Lender may delay or lorgo enforcing any of its rights or remedies under this Note without losing them. Each Borrower understands and agrees that, with or without notice to Sorrower, Lender may with respect to any other Borrower (a) make one or more additional secured or unsecured loans or otherwise extend additional credit; (b) alter, compromise, renew, extend, accelerate, or otherwise change one or more times the time for payment or other terms any indebtedness, including increases and decreases of the rate of interest on the indebtedness; (c) exchange, enforce, waive, subordinate, fail or decide not to perfect, and release any security, with or without the substitution gl new collateral; (d) apply such security and direct the order or manner gl sale thereof, ingiuding without limitation, any non-judicial sale permitted by the terms of the controlling security agreements, as Lender in its discretion may determine; (e) release, substitute, agree not to sue, or deal with any one or more of Borrower's sureties, endorsers, or other guarantors on any terms or in any manner Lender may choose; and (f) determine how, when and what application of payments and credits shall be made on any other indebtedness owing by such other Borrower. Borrower and any other person who signs, guarantees or endorses this Note, to the extent ailowed by law, waive presentment, demand for payment, and notice of dishonor Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such par[les agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joini and several. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY A3-J'ORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS OF SU~T, AND AN A~i'ORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT tN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S A~rENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL PRIOR TO SIGNING THIS NOTE, EACH BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS AND THE NOTICE TO COSIGNER SET FORTH BELOW. EACH BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: X M r ; Da-v~, Individuany Signed c I d delivered in the presence of: JEt'G; Davis, In~ivl~ually ' LENDER: FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG Authorized Signer NOTICE TO COSIGNER You are being asked to guarantee this debt. Think carefully before you do. It the borrower doesn't pay the debt, you will have to. Be sure you can afford to pay if you have to, and that you want to accept this responsibility. You may have to pay up to the full amount of the debt Jf the borrower does not pay. You may also have to pay late fees or collection costs, which increase this amount. The Lender can cogect this debt from you without first trying to collect from the borrower. The Lender can use the same collection methods against you that can be used against the borrower, such as suing you, garnishing your wages, etc. If this debt is ever in default, that fact may become a part of YOUR credit record. This notice is not the contract that makes you liable tot the debt. EXHIBIT "B" PROMISSORY NOTE References in the shaded area are for Lender s use only and do not limit the applicability of this document to any particular loan or item. Borrower: Mark A. Davis (SSN: 095-50-9557) Lender: Janet G. Davis (SSN: 090-56-9850) 107 Hammond Road Shippensburg, PA 17257 FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG MEMORIAL SQUARE OFFICE 20 SOUTH MAIN STREET P. O. BOX 6010 CHAMBERSBURG, PA 17201-6010 Principal Amount: $23,250.00 Date of Note: April 21, 2000 PROMISE TO PAY. Mark A. Davis and Janet G. Davis ("Borrower") promise to pay to FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG ("Lender"), or order, in lawful money of the United States of America, the principal amount of Twenty Three Thousand Two Hundred Fifty & 00/100 Dollars ($23,250.00), together with interest on the unpaid principal balance from April 21, 2000, until paid in full. PAYMENT. Subject to any payment changes resulting from changes in the Index, Borrower will pay this loan in accordance with the following payment schedule: 60 consecutive monthly principal and interest payments of $240.24 each, beginning June 5, 2000, with interest calculated on the unpaid principal balances at an interest rate of 9.250% per annum; 119 consecutive monthly principal and interest payments in the initial amount of $242.81 each, beginning June 5, 2005, with interest calculated on the unpaid principal balances at an interest rate of 0.500 percentage points over the Index described below; and I principal and interest payment in the initial amount of $242.78 on May 5, 2015, with Interest calculated on the unpaid principal balances at an interest rate of 0.500 percentage points over the Index described below. This estimated final payment is based on the assumption that all payments will be made exactly as scheduled and that the Index does not change; the actual final payment will be for all principal and accrued interest not yet paid, together with any other unpaid amounts under this Note. Interest on this Not~ is computed on a 365/365 simple interest basis; that is, by applying the ratio of the annual interest rate over the number of days in a year, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. Unless otherwise agreed or required by applicable law, payments will be applied first to accrued unpaid interest, then to principal, and any remaining amount to any unpaid collection costs and late charges. VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an independent index which is the New York Prime Rate as published in the Wall Street Journal. When a range of rates has been published, the higher of the rates will be used. (the "index"). The index is not necessarily the lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notice to Borrower. Lender will tell Borrower the current Index rate upon Borrower's request. Borrower understands that Lender may make loans based on other rates as well. The interest rate change will not occur more often than each time there has been a change in the Index. The Index currently is 9.000% per annum. The interest rate or rates to be applied to the unpaid principal balance of this Note will be the rate or rates set forth above in the "Payment" section. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law. Whenever increases occur in the interest rate, Lender, at its option, may do one or more of the following: (a) increase Borrower's payments to ensure Borrower's loan will pay off by its original final maturity date, (b) increase Borrower's payments to cover accruing interest, (c) increase the number of Borrower's payments, and (d) continue Borrower's payments at the same amount and increase Borrower's final payment. PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments under the payment schedule. Rather, they will reduce the principal balance due and may result in Borrower making fewer payments. LATE CHARGE. If a payment is 16 days or more late, Borrower will be charged 6.000% of the regularly scheduled payment. DEFAULT. Borrower will be in default if any of the following happens: (a) Borrower fails to make any payment when due. (b) Borrower breaks any promise Borrower has made to Lender, or Borrower fails to comply with or to perform when due any other term, obligation, covenant, or condition contained in this Note or any agreement related to this Note, or in any other agreement or loan Borrower has with Lender. (c) Borrower defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the Retated Documents. (d) Any representation or statement made or furnished to Lender by Borrower or on Borrower's behalf is false or misleading in any material respect either now or at the time made or furnished. (e) Borrower dies or becomes insolvent, a receiver is appointed for any pad of Borrower's proper[y, Borrower makes an assignment for the benefit of creditors, or any proceeding is commenced either by Borrower or against Borrower under any bankruptcy or insolvency laws. (f) Any creditor tries to take any of Borrower's property on or in which Lender has a lien or security interest. This includes a garnishment of any of Borrower's accounts with Lender. (g) Any of the events described in this default section occurs with respect to any guarantor of this Note. (h) A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired. (i) Lender in good faith deems itself insecure. LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance on this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount. Upon default, including failure to pay upon final maturity, Lender, at its option, may also, if permitted under applicable law, increase the variable interest rate on this Note to 2.500 percentage points ever the Index. The interest rate will not exceed the maximum rate permitted by applicable law. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower also will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to medity or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. if judgment is entered in connection with this Note, interest will continue to accrue on this Note after judgment at the interest rate applicable to this Note at the time judgment is entered. This Note has been delivered to Lender and accepted by Lender in the Commonwealth of Pennsylvania. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Franklin County, the Commonwealth of Pennsylvania. This Note shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $25.00 if Borrower makes a payment on Borrower's loan and the check or preauthorized charge with which Borrower pays is later dishonored. RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in, and hereby ass~f~s, c¢~:,~.~ys, delivers, p~edges, and transfers to 04-21-2000 PROMISSORY NOTE Page 2 Loan No (Continued) Lender all Borrower's right, title and interest in and to, Borrower's accounts with Lender (whether checking, savings, or some other account), including without limitation all accounts held jointly with someone else and all accounts Borrower may open in the future, excluding however ail IRA and Keogh accounts, and all trust accounts for which the grant of a security interest would be prohibited by law. Borrower authorizes Lender, to the exteRt permitted by applicable law, to charge or setoff all sums owing on this Note against any and all such accounts. COLLATERAL. This Note is secured by a Mortgage and an Assignment of All Rents dated April 21, 2000, to Lender on real property located in Cumberland County, Commonwealth of Pennsylvania, all the terms and conditions of which are hereby incorporated and made a pad: of this Note. GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, protest and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any Iength of time) this loan, or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. Ali such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. Borrower hereby irrevocably authorizes and empowers any attorney or the Prothonotary or Clerk of any Court in the Commonwealth of Pennsylvania, or elsewhere, to appear at any time for Borrower, and with or without complaint filed, as of any term, confess or enter judgment against Borrower for the entire principal balance of this Note and all accrued interest, together with costs of suit, and an attorney's commission of ten percent (10%) of the unpaid principal balance and accrued interest for collection, but in any event not tess than Five Hundred Dollars ($500); and for so doing, this Note or a copy of this Note verified by affidavit shall be sufficient warrant. The authority granted in this Note to confess judgment against Borrower shall not be exhausted by any exercise of that authority, but shall continue from time to time and at ail times until payment in full of all amounts due under this Note. The lien arising from any judgment confessed or entered pursuant to the foregoing authority shall not extend to any of Borrower's residential real property as that term is defined in the Pennsylvania Act of January 30, 1974 (Pa. Laws 13, No. 6), referred to as the Loan Interest and Protection Law, as amended, and the holder of any judgment confessed or entered pursuant to the forgoing authority shall not, in enforcement of any such judgment, execute, levy or otherwise proceed against any such residential real property; provided, however, that the lien of such judgment shall extend to such residential real property and that the holder thereof shall be permitted to execute, levy or proceed against such residential real property from and after the entry of a judgment as contemplated by Section 407 of such Loan interest and Protection Law and Rules 2981 to 2986 of the Pennsylvania Rules of Civil Procedure, or successor or similar statutes and rules. No limitation of lien or any execution, levy or other enforcement contained in the immediately preceding sentence shall apply with respect to any judgment obtained other than by the foregoing authority to confess or enter judgment. PRIOR TO SIGNING THIS NOTE, EACH BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS AND THE NOTICE TO COSIGNER SET FORTH BELOW. EACH BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE. THIS NOTE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED. BORROWER~.-! Mark A. Davis Sig~~ in the presence of: × . '~-.~. ~ Witnes~ Witness LENDER: ~;~M_~, ~ANY OF CHAMBERSBURG Authorized Officer NOTICE TO COSIGNER You are being asked to guarantee this debt. Think carefully before you do. If the borrower doesn't pay the debt, you will have to. Be sure you can afford to pay if you have to, and that you want to accept this responsibility. You may have to pay up to the full amount of the debt if the borrower does not pay. You may also have to pay late fees or collection costs, which increase this amount. The lender can collect this debt from you without first trying to collect from the borrower. The lender can use the same collection methods against you that can be used against the borrower, such as suing you, garnishing your wages, etc. If this debt is ever in default, that fact may become a part of YOUR credit record. This notice is not the contract that makes you liable for the debt. Vana[~le Rate Balloon LASER PRO, Reg. US Pat & TM. Cfi., Vet. 329 (C) Concentrex 2000 All rights reserved [PA-D20 OAVISMA2,LN C26.OVL] Sandra G. Small, Assistant Vice President, and duly authorized representative of Farmers & Merchants Trust Company of Chambersburg, deposes and says subject to the 9enalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities that the facts set forth in the foregoing Complaint in Confession of Judgment are true and correct to her information and belief. 'Sandra G. Small Assistant Vice President IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, : : . : : Defendants. : CIVIL DIVISION NO.: NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON Notice of Defendant's Rights To: Mark A. Davis 107 Hammond Road Shippensburg, PA 17257 A judgment in the amount of $94,076.09 has been entered against you and in favor of the plaintiffwithout any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriffmay 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 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 Avenue Carlisle, PA 17013 Phone (717) 249-3166 (800) 990-9108 Respectfully Submitted: JAMES, S~ By: ~ Sc t & CONNELLY LLP ~.-'?I~erick, Esquire Attorney I.D.#55650 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, CIVIL DIVISION VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, : NO.: : : Defendants. : PETITION TO STRIKE JUDGMENT Request for Prompt Heating I hereby certify that I did not voluntarily, intelligently and knowingly give up my tight to notice and hearing prior to the entry of judgment. I petition the court to strike the judgment on this ground and request a prompt hearing on this issue. I vetify that the statements made in this Request for Hearing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Notice of hearing should be given to me at: Street Address City, State Telephone Number Dated: Defendant(s) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, : . : ; : ; Defendants. : CIVIL DIVISION NO.: NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON Notice of Defendant's Rights To: Janet G. Davis 107 Hammond Road Shippensburg, PA 17257 A judgment in the mount of $94,076.09 has been entered against you and in favor of the plaintiff without any prior notice or hearing basedon a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriffmay 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 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 Avenue Carlisle, PA 17013 Phone (717) 249-3166 (800) 990-9108 Respectfully Submitted: JAMES,By: S1V/ ~l' D & CONNELLY LLP Scolt . Dletterick, Esquire Attorney' I.D.#55650 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 SHERIFF'S RETURN - REGULAR CASE NO: 2002-01354 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FARMERS AND MERCHANTS TRUST VS DAVIS MARK A ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE & COMPLAINT IN was served upon DAVIS JANET G the DEFENDANT , at ~013:50 HOURS, on the ~lst day of March at 107 HAMMOND RD , 2002 SHIPPENSBURG, PA 17257 MARK DAVIS (HUSBAND) by handing to a true and attested copy of NOTICE & COMPLAINT IN CONFESSION OF JUDGEMENT, NOTICE UNDER RULE 2958.1 together with and at the same time directing ~is attention to the contents thereof. Sheriff.s Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this _~ day of ~f~ ~-~ A.D. l~r~thof6~ar~}- ~ So Answers: R. Thomas Kline 03/22/2002 JAMES, SMITH, DURKIN, CONNELL~Y Deputy Sheriff SHERIFF ' S RETURN - REGULAR ~ASE'NO: 2002-01354 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FARMERS AND MERCHANTS TRUST VS DAVIS MARK A ET AL BRIAN BARRICK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE & COMPLAINT IN was served upon DAVIS MARK A the DEFENDANT , at 0013:50 HOURS, on the 21st day of March , 2002 at 107 HAMMOND RD SHIPPENSBURG, PA 17257 by handing to MARK DAVIS a true and attested copy of NOTICE & COMPLAINT IN CONFESSION OF JUDGEMENT, NOTICE UNDER RULE 2958.1 together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.35 SURCHARGE 10.00 .00 .00 38.35 Sworn and Subscribed to before me this ~ -~ day of ~z~ ~ 2~ a.D. ~r6thohotary ' So Answers: R. Thomas Kline 03/22/2002 JAMES, SMITH, By: DLrRKI N , CONNE~LLY Deputy Sheriff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, MARK A. DAVIS and JANET G. DAVIS, Defendants CIVIL DIVISION NO. 02-1354 CIVIL TERM DEFENDANTS' PETITION TO OPEN AND/OR STRIKE CONFESSION OF JUDGMENT Defendants, Mark A. Davis and Janet G. Davis, by and through their attorneys, Weigle & Associates, P.C., and Jerry A. Weigle, Esquire, respectfully petition this Court to open and/or strike the confession of judgment in the above-captioned matter and avers as follows: Plaintiff entered confession of judgmem on March 19, 2002, under authority in the Warrant of Attorney in a $60,000.00 Note and $23,250.00 Note, as referenced thereto in Plaintiff's Complaint in Confession of Judgment incorporated herein and attached hereto as Exhibit "A." On March 21, 2002 a Confession of Judgmem together with the Complaint in Confession of Judgment was served upon the Defendants. o Plaintiff asserts in the Confession of Judgment that the outstanding principal balance of the $23,250.00 Note is $23,250.00. However, Defendants have made numerous payments on said debt and aver that said outstanding principal balance is $22,321.28 as shown on Defendants' Loan Statement, dated April 5, 2002, incorporated herein and attached hereto as Exhibit "B." Defendants assert that Plaintiff's Confession of Judgment in the amount of $94,076.09 is incorrect and should be stricken from the record. Defendants further assert that they did not voluntarily, imelligently and knowingly give up their right to notice and hearing prior to the entry of the aforesaid judgment entered. WHEREFORE, Defendants, Mark A. Davis and Janet G. Davis, respectfully request that this Honorable Court open and/or strike the Confession of Judgment entered by the Plaintiff in the above-captioned matter and permit Defendants to answer the Complaint. By: Respectfully submitted: WEIGLE & ASSOCIATES, P.C. Jerry,. Weigle,X~squire Attorney I.D. #01624 Joseph P. Ruane, Esquire Attorney I.D. #71577 Attorneys for Defendant 126 East King Street Shippensburg, PA 17257 Telephone (717)532-7388 VERIFICATION ! verify that the statements made in the foregoing Petition to Open and/or Strike Judgment arc tree and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities. Dated: VERIFICATION I verify that thc statements made in the foregoing Petition to Open and/or Strike Judgment are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities. Dated:~d2.q./~ ~.~c~.~ ~ / ~ffd'q~T G. DC/VIS TRUST CHAMBERSBURG BOLLING SPRINGS MARION MONT ALTO NEWVILLE SHIPPENSBURG WAYN ESBORO CARLISLE 0022 0206 45 ,* POST MATURITY NOTICE PAYMENT DUE DATE: 4-05-C PRINCIPAL: ~AT~NTEREST: $i,185.2 CHARGE: $181.~ AMT DUE: ~2~,688.i MARK A DAVIS JANET G DAVIS 107 HAMMOND RD SDC SH IPPENSBURG PA 10 ':5028 ~,8OO': ENTER AMOUNT PAIC ACCOUNT NUMBEF 0~-000i-1007~i6-~0( PLEASE RETURN THE TOF' SECTION OF THIS STATEMENT WITH-YOUR PAYMENT. SECTION FOR YOUR RECORDS, ACCOUNT: 0~-0001-1007916-.9003 PAGE * POST MATURITY NOTICE * STATEMENT DATE MATURITY DATE PAYMENT DUE'DATE ~-ZS-~O0~ 3-06-Z00~ 4-0~-~00~ RETAIN THIS 1 OF i PAYMENT Db $Z3,680.il TRANSACTION TRANSACTION DATE DESCRIPTION RATE 'AMOUNT BALANCE ~-06-0~ BALANCE FORWARD 4-0~-0~ INTEREST ~.~% ENDING BALANCE **** 107 HAMMOND ROAD, SHiPPENSBURG DAYS INTERES $i,0t~.6~: $16~.7i TOTALS: AMOUNT DUE: $~3,688.ii PRINCIPAL: iNTEREST: LATE CHARGE: $181.50 MAlL FARMERS AND MERCHANTS TRUST COMPANY PAYMENTS TO: P.O. BOX 60i0 CHAMBERSBURG, PA 17201-6010 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, VS. MARK A. DAVIS and JANET G. DAVIS, Defendants. CIVIL DIVISfON NO.: -- 13g / CONFESSION OF JUDGMENT Pursuant to the authority in the Warrant of Attorney contained in the aforesaid $60,000.00 Note and $23,250.00 Note, copies of which are attached to the Complaint filed in this action, I appear for the Defendants and confess judgment in favor of Plaintiff and against Defendants as follows: $23,250.00 Note Principal $23,250.00 Interest to 3/11/02 $ 987.27 Late Charges $ 167.09 Attorneys' Fees $ 2,440.43 (10% of the total amount due) TOTAL with interest on the principal sum ($23,250.00) from March 11, $26,844.79 2002 at $5.65 per diem. $60,000.00 Note Principal Interest to 3/I 1/02 Attorneys' Fees (10% of thc total amount duc) TOTAl, with interest on the principal sum ($60.000.00) from March 11. $60,000.00 $ 1,119.37. $ 6,111.93 $67,231.30 20(12 at$9.58 pcrdiem. GRAND TOTAl, with intcrcst on the principal sums ($83,250.00) from JAM ES~ CONNELLY Scot(~Di~Esquir~' PA ID ~55650 Attorneys for Defendant Pro Hac Vice $94,076.09 March 11, 2002 at $15.23 per diem. LLP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST CIVIL DIVISION - COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, Defendants. NO.: AFFIDAVIT OF BUSINESS TRANSACTION COMMONWEALTH OF PENNSYLVANIA : COUNTY OF DAUPHIN : SS: Before me, the undersigned authority, a Notary Public in and for said County and Commonwealth, personally appeared Scott A. Dietteriek, Esquire, attorney for and authorized representative of Plaintiffwho, being duly sworn according to law, deposes and says that to the best of his knowledge, information and belief the Note, the original or copy of which is attached to the Complaint filed in this action, was executed by the Defenl:lants in eo_njunetion with a business transaction, and was not executed for consumer ~ Scott A./Di~tterick, Esquire SWORN TO AND SUBSCRIBED BEFORE ME THIS/4'/A DAY OF · . 7~/(~' ~/" ,2002. C_ , Notary Public MY COMMISSION EXPIRES: NOTARIAL SEAL MICHELLE ELLIOTT, NOTAi~Y PUBLIC qUUMELSTOWN, DAUPHIN COIJNTY' PA CO~ISSION EXPIRES JUNE 9. 2003 1N THE COURT OF COMMON PLEAS OF FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, VS. MARK A. DAVIS and JANET G. DAVIS, Defendants. CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NO.: 02 -- NOTICE OF ORDER, DECREE OR JUDGMENT TO: ( ) Plaintiff (X) Defendant - Mark A. Davis ( ) Additional Defendant(s) You are hereby notified that an Order, Decree or Judgment was entered in the above-captioned proceeding on ~.~/~c~, ( ) A copy of the Order or Decree is as follows: or (X) The judgment is as follows: $94,076.09 with interest on the principal sums ($83,250.00) from March I I, 2002 at $15.23 per diem. Prothonotary IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN;FY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, : CIVIL DIVISION - : Plaintiff, : NO.: ~&- VS. MARK A. DAVIS and JANET G. DAVIS, Defendants. : NOTICE OF ORDER, DECREE OR JUDGMENT TO: ( ) Plaintiff (X) Defendant - Janet G. Davis ( ) Additional Defendant(s) You are here. by notified that an Order, Decree or Judgment was entered in the above-captioned proceeding on ~._ lq. &Eo~.,, ( ) A copy of the Order or Decree is as follows: or (X) The judgment is as follows: $94,076.09 with interest on the principal sums ($83,250.00) from March 11, 2002 at $15.23 per diem. Prothonotary THE COURT OF COMMON PLEAS OF FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, Defendants. I hereby certify that the address of Plaintiff is: P.O. Box "T", 20 South Main Street Chambersburg, PA 17201 and the last known address of Defendants is: 107 Ilammond Road. Shippensburg, PA 17257 JAMES, SMITII, DURKIN & CONNELL~ By: S -c~ott ~''~ ~e Attorneys for Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NO.: O;Z --/.LW ISSUE NO.: TYPE' OF PLEADiNG: CIVIL ACTION - COMPLAINT IN CONFESSION OF. JUDGMENT CODE - FILE ON BEHALF OF: Farmers and Merchants Trust Company of Chambersburg, Plaintiff COUNSEL OF RECORD FOR THIS PARTY: Scott A. Dietterick, Esquire PA ID #55650 James, Smith, Durkin & Connelly LLP P.O. Box 650 Hershey, PA 17033 (717) 533-3280 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVAI?A FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, Defendants. CIVIL DIVISION NO.: : CIVIL ACTION - COMPLAINT IN CONFESSION OF JUDGMENT AND NOW, comes Farmers and Merchants Trust Company of Chambersburg, Plaintiff, by and through its attorneys, James, Smith, Durkin & Connelly LLP, and files this Complaint in Confession of Judgrnent as follows: I. Farmers and Merchants Trust Company of Chambersbsurg is a financial institution existing under the laws of the United States of America, with its principal place of business located at P.O. Box "T", 20 South Main Street, Chambersburg, Pennsylvania 17201. 2. Defendants, Mark A. Davis and Janet G. Davis, are adult individuals whose last known address is 107 Hammond Road, Shippensburg, Pennsylvania 17201. 3. On or about April 2 l, 2000, Defendants executed and delivered a certain Promissory Note in favor of Plaintiff in the original principal amount of $23,250.00 ("$23,250.00 Note"), which Note authorized the confession of judgment against Defendants. A copy of said Note, which copy is a true and correct reproduction of the original $23,250.00 Note, is marked Exhibit "B", attached hereto and made a part hereof. 4. On or about October 3 l, 2000, Defendants executed and delivered a certain Promissory Note in favor of Plaintiff in the original principal amount of $60.000.00 C$60,000.00 Note"), which Note authorized the confession ofjudgment against Defendants. A copy of said Note, which copy is a true and correct reproduction of the original $60,000.00 Note, is marked Exhibit "A", attached hereto and made a part hereof. COUNT I CONFESSION OF JUDGMENT UNDER $23,250.00 NOTE 5. Plaintiffhereby incorporates by reference its averments in paragraphs 1 through 4 as if set forth fully herein. 6. The $23,250.00 Note has not been released, transferred or assigned. 7. Judgment has not been entered against the Defendants on the $23,250.00 Note in any jurisdiction. 8. The aforesaid $23,250.00 Note authorizes the entry of judgment without default thereon or the occurrence of a condition precedent. 9. The judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 10. The itemization of the amount due, including interest and attorneys' fees as authorized by the $23,250.00 Note, is as follows: Principal $23,250.00 Interest to 3/11/02 $ 987.27 Late Charges $ 167.09 Attorneys' Fees $ 2,440.43 (10% of the total amount due) TOTAL $26,844.79 with interest on the principal sum ($23,250.00) from March 11, 2002 at $5.65 per diem. WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the $23,250.00 Note, demands judgment against the Defendants in the amount of $26,844.79 with- interest on the principal sum from March 11, 2002 at $5.65 per diem. 11. CONFESSION OF JUDGMENT UNDER $60,000.00 NOTE Plaintiff hereby incorporates by referency its averments in Paragraphs 1 through 10 as if set forth fully herein. 12. The $60,000.00 Note has not been released, transferred or assigned. 13. Judgment has not been entered against the Defendantg'on the $60,000.00 Note in any jurisdiction. 14. The aforesaid $60,000.00 Note authorizes the entry of judgment without default thereon or the occurrence of a condition precedent. 15. The judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 16. The itemization of the amount due, including interest and attorney fees as authorized by the $60,000.00 Note, is as follows: Principal Interest to 3/11/02 Attorneys' Fees (10% of the total amount due) $60,000.00 $ 1,119.37 $ 6.111.93 TOTAL $67,231.30 with interest on the principal sum ($60,000.00) from March 11, 2002 at $9.58 per diem. · WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the $60,000.00 Note, demands judgment ·against the Defendants in the amount of $67,231.30 with.. interest on the principal sum from March 11, 2002 at $9.58 per diem. WHEREFORE, Plaintiff, as authorized by the warrants of attorney contained in the $60,000.00 Note and the $23,250.00 Note, demands judgment in its favor and against Defendants in the total sum of $94,076.09 with interest on the principal sums ($83,250.00) from March 11, 2002 at the rate of $15.23 per diem, and brings said instrument to Court to recover the said sum. Dated: JAMES, ~& CONNELLY LLP By: _ Scott A~./I~ie~'~k, ~'ssqui~e PA ID #55650 Attomeys for Plaintiff P.O. Box 650 Hershey, PA 17033 (717) 533-3280 EXHIBIT "A" PROMISSORY NOTE Pi. ii, Pal I L~a~n. DateMaturllY I. oan No ~ .'¢~ Acc°unt : Officer: Initials ,. 07;a:~o~i ~ I:'S~c ,I: I Principal Amount: $60,000.00 Initial Rate: 10.500% Date of Note: October 31, 2000 PROMISE TO PAY. Mark A. Davis and Janet G. Dates ('Borrower') Joletly and severally promise ta pay to Farmers and Merchants Trust Company of Champatchurg ("Leade~'), or order, in tewful money of the United States of America, the prthcipat amount of Sixty Thousand & ~omputad on a 365/360 baals; that Is, by applying the ratio of the annual Int~eet rate over · year of 360 days, multiplied by the outstanthng principal balance, multlptied by the acluel number of days the principal balance is oufstanding. Borrower will pay Lende; at Lender's address VARIABLE IN3EREST RATE. T~e ~te~est rate (3a this Note is sul~ect Io change Item time to time based on changes ~n an independent ~ndex wh;ch "Index'). The fedex is MI necessarily the lowest rate charged by Lender ~ its I~ans. Il the Index becomes unavailaele during the term el this tean. Lender may designate a substitote index slier notice to ~orrower. Lender wil~ tell Borrower the current ledex rate upon Borrower's request. The ~terest rate change will not occur m~e often than each time there has been a change in the Index. Borrower understands that Lender may make loans based on olhe~ rates 6s well The Index currently is 9.500% per annum. The Interest rate to be applied to the unpaid principal balance of this Note witi be at a rate of 1.0~0 pa~centage point over the index, resulting in an Initial rate of 10.5~0% par annum. NOTICE: Under no PROMISSORY NOTE (Continued) Page 2 SEALED INS1PRUMENT ACCORDING TO LAW. BORROWER: x ~.-~/~ ~ Mark A~ DaYr~, Ihdlvidua'lfy (Seal) J~et~ Davis, Ind~.v~ually .... Seal) // LENDER: FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG NG'F[(~-E TO COSIGNER EXHIBIT "B" PROMISSORY NOTE :ii:.:::. ~i[l~]~ References in the shad6d area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Borrower: Mark A. Davis (SSN: 095-50-9557) Janet G. Davis (SSN: 090-56-9850) 107 Hammond Road Shippensburg, PA 17257 Lender: FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG MEMORIAL SQUARE OFFICE ~ 20 SOUTH MAIN STREET P. O. BOX 6010 CHAMBERSBURG, PA 17201-6010 Principal Amount: $23,250.00 Date of Note: April 21, 2000 PROMISE TO PAY. Mark A. Davis and Janet G. Davis ("Borrower") promise to pay to FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG ("Lender"), or order, in lawful money of the United States of Arherica, the principal amount of Twenty Three Thousand Two Hundred Fifty & 00/t 00 Collars ($23,250.00), together with interest on the unpaid principal balance from April 21, 2000, until paid In full. PAYMENT. Subject to any payment changes resulting from changes in the Index, Borrower will pay this loan in accordance with the following payment schedule: 60 consecutive monthly principal and interest payments of $240.24 each, beginning June 5, 2000, with interest calculated on the unpaid principal balances at an interest rate of 9.250% per annum; 119 consecutive monthly principal and interest payments in the initial amount of $242.81 each, beginning June $, 2005, with Interest calculated on the unpaid principal balances at an interest rate of 0,500 percentage points over the Index described below; and 1 principal and interest payment in the initial amount of $242.78 on May 5, 2015, with interest calculated on the unpaid principal balances at an interest rate of 0.500 percentage points over the Index described below. This estimated final payment Is based on the assumption that all payments will be made exactly as scheduled and that the Index does not change; the actual final payment will be for all principal and accrued interest not yet paid, together with any other unpaid amounts under this Note. Interest on this Not~ is computed on a 365/365 simple interest basis; that is, by applying the ratio of the annual interest rate over the number.of days in a year, muitiplisd by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. Unless otherwise agreed or required by applicable law, payments will be applied first to accrued unpaid interest, then to principal, end any remaining amount to any unpaid collection costs and late charges. VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an independent index which is the New York Prime Rate as published in the Wall Street Journal. When a range of rates has been published, the higher of the rates will be used. (the "Index"). The index is not necessarily the lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notice to Borrower. Lender will tell Borrower the current Index rate upon Borrower's reduest Borrower understands that Lender may make loans based on other rates as wall. The interest rate change will not occur more often than each time there has been a change in the Index. The Index currently ia 9.000% per annum. The interest rate or rates to be applied to the unpaid principal balance of this Note will be the rate or rates set forth above in the "Payment" secUon. NOTICE: Under no citcun~tances will the interest rate on this Note be more than the maximum rate allowed by applicable law. Whenever increases occur in the interest rate, Lender, at its option, may do one or more of the following: (a) increase Borrower's payments to ensure Borrower's loan wnl pay off by its original final maturity date, (b) increase Borrower's payments to cover accruing interest, (c) increese the number of Borrower's payments, and (d) continue Borrower's payments at the same amount and increase Borrower's final payment, PREPAYMENT. Borrower may pay without penalty ell or a portion of the amount owed eadier than it is due. Early payments wilt not, unless agreed to by Lender in writing, relieve Sorrower of Borrower's obligation to continue to make payments under the payment schedule. Rather, they will reduce the principal balance due and may result in Borrower making fewer payments. LATE CHARGE. If a payment is 16 days or more late, Borrower wilt be charged 6.000% of the regularly scheduled payment. DEFAULT. Borrower will be in defauft if any of the following happens: (a) Borrower fails to make any payment when due. (b) Borrower breaks any premise Borrower has made to Lender, or Borrower fails to comply with or to perform when due any other term, obligation, covenant, or condition contained in this Note or any agreement related to this Note, or in any other agreement or loan Borrower has with Lender. (c) Borrower defaults under any loen, extension of credit, security agreement, purchase or sales agreement, or any o0~r agreement, in favor of any other creditor or parson that may materially affect any of Borrower's proper[./or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the Related Documents. (d) Any representation or statement made or furnished to Lender by Borrower or on Borrower's behalf is false or misleading in any material respect either now or at the lime made or furnished. (e) Borrower dies or becomes insolvent, a receiver is appointed for any part of Borrower's property, Borrower makes an assignment for the benetit of ored[tors, or any proceeding is commenced either by Borrower or against Borrower under any bankruptcy or insolvency laws. (f} Any creditor tries to take any of Borrower's property on or in which Lender has a lien or security interest. This includes a garnishment of any of Borrower's accounts with Lender. (g} Any of the events described in this default section occurs with respect to any guarantor of this Note. (h) A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired, ti) Lender in good faith deems itself insecure. LENDER'S RIGHTS. Upon defaull, Lender may, after giving such notices as required by app~icaole law, dec,are the entire unpaid prrncipal balance on this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount. Upon Qef&ult, including failure to pay upon final maturity, Lender, at its option, may also, if permitted under applicable law, increase the variable interest rate on this Note to 2.500 percentage points over the Index. The interest rate will not exceed the maximum rate permitted by applicable law. Lender may hire or pay someone else ~o help collect this Note if Borrower does not pay. Borrower a[so will pay Lender that amount. This iocludes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses whethe~ or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (inctuding efforts to mocl[ty or vacate any automatic stay or injunction), appeals, and any anticipated post-iudgment collection services. If not pt'ohib~ted by apphcaDle law, Borrower also will pay any court costs, in addition to all other sums prowded by law, If judgmen~ is entered ~n connection with this Note. interest will conlinue to accrue on this Note after judgment at the interest rate applicable io this Note al the time judgment is entered. This Note has been delivered to Lender and accepted by Lender in the Commonwesllh of Pennsylvania. If there is a lawsuit, Sorrower agrees upon Lender's request to submit to the iurisdiction of the courts of Franklin County, the Commonwealth of Pennsylvania. This Note shall toe governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. 34-21-2000 Loan No PROMISSORY NOTE (Continued) Page 2 Lender all Borrower's right, title and interest in and to, Borrower's accounts with Lender (whether' checf~ing, savings, or some other account), including without limitation all accounts he~d jointly with someone else and all accounts Borrower may open in the future, excluding however ali ~RA and Keogh accounts, and all trust accounts for wt~ich the grant of a security interest would be prohibited by law. Borrower authorizes Lender, to the extent permitled by applicable law, to charge or setoff all sums owing on this Note against any and all such accounts. ~ COLLATERAL. This Note is secured by a Mortgage and an Assignment of All Rents dated April 21, 2000, ~o Lender on real property leoated in Cumberland County, Commonwealth of Pecnsy~vania, all the terms and condilions of which are hereby incorporated and made a part of this Note. GENERAL PROVISIONS. Lender may delay or forgo enforcing any ol its rights or remedies under this Note without losing them. Borrower and any other person who s~gns, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, protest and notice of dishonor. Upon any change in the tarms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such .parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan, or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enlorceability of any other provisions of this Note. CONFESSION OF JUDGMENT. Borrower hereby irrevocably authorizes and empowers any attorney or the Prothonotary or Clerk of any Court in the Commonwealth of Pennsylvania, or elsewhere, to appear at any time for Borrower, and with or without complaint filed, as of any term, confess or enter judgment against Borrower for the entire principal balance of this Note and all accrued interest, together with costs of suit, and an attorney's commission of ten percent (10%) of the unpaid principal balance and accrued interest for coll,ection, but in any event not less than Five Hundred Dollars ($500); and for so doing, this Note or a copy of this Note verified by affidavit shall be sufficient warrant. The authorify granted in this Note to confess judgment against Borrower shall not be exhausted by any exercise of that authority, but shall continue from time to time and at all times until payment in full of all amounts due under this Note. The lien aris[og from any judgment confessed or entered pursuant to the foregoing authority shall not extend to any of Borrower's residential real property as that term is defined in the Pennsylvania Act of January 30, 1974 (Pa. Laws 13, No. 6), referred to as the Loan interest and Protection Law, as amended, and the holder of any judgment confessed or entered pursuant to the forgoing authority shall not, in enforcement of any such judgment, execute, levy or otherwise proceed agair~st any such residential real property; provided, however, that the lien of such judgment shall extend to such residential real property and that the holder thereof shall be permitted to execute, levy or proceed a~ainst such residential real propert,/ from and after the entry of a judgment as contemplated by Section 407 of such Loan interest and Protection Law and Rules 2981 to 2986 of the Pennsylvania Rules of Civil Procedure, or successor or similar statutes and rules. No limitation of lien or any execution, levy or other enforcement contained in the immediately preceding sentence shall apply with respect to any judgment obtained other than by the foregoing authority to confess or enter judgment. PRIOR TO SIGNING THIS NOTE, EACH BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREBT RATE PROVISIONS AND THE NOTICE TO COSIGNER SET FORTH BELOW. EACH BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE. THIS NOTE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED. BORROWER.~--I ~ , X :~ {,~ (SEAL) Mark A, Davis Slgned~,~ ~kn~ In the presence of: Wltnes~. LENDER: [~:M.~ ~ANY OF CHAMBERSBURG Authorized Officer NOTICE TO COSIGNER You are being asked to guarantee this debt. Think carefully before you do. If the borrower doesn't pay the debt, you will have to. Be sure you can afford to pay If you have to, and that you want to accept this responsibility. You may have to pay up to the full amount o! the debt if the borrower does not pay. You may also have to pay late fees or collection costs, which increase this amount. The lender can collect this debt trom you without first trying to collect from the borrower. The lender can use the same collection methods against you that can be used against the borrower, such as suing you, garnishing your wages, etc. If this debt is ever in default, that fact may become a part of YOUR credit record. This notice is not the contract that makes you liable tor the debt. Sandra G. Small, Assistant Vice President, and duly authorized representative of Farmers & Merchants Trust Company of Chambersburg, deposes and says subject to the penalties of 18 Pa. c.s. §4904 relating to unsworn falsification to authorities that the facts set forth in the foregoing Complaint in Confession of Judgment are true and correct to her information and belief. 'Sandra G. Small Assistant Vice President IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, Defendants. CIVIL DIVISION NO.: NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON Notice of Defendant's Rights To: Mark A. Davis 107 Hammond Road Shippensburg, PA 17257 A judgment in the amount of $94,076.09 has been entered against you and in favor of the plaintiff 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN G~T LEGAL HELP. Cumberland County Bar Association' 2 Liberty Avenue Carlisle, PA 17013 Phone (717) 249-3166 (800) 990-9108 Respectfully .Submitted: JAMES, S~ By:_ Sc~tl Attome ~~.. &CONNELLY 'I$1e~terick, Esquire , I.D.#55650 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 LLP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, : Defendants. : CIVIL DIVISION NO.: PETITION TO STRIKE JUDGMENT Request for Prompt Hearing I hereby certify that I did not voluntarily, intelligently and knowingly give up my right to notice and hearing prior to the ent~ ofjudgment. I petition the court to strike the judgment on this ground and request a prompt hearing on this issue. I verify that the statements made in this Request for Hearing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Notice of hearing should be given to me at: Street Address City, State Telephone Number Dated: Defendant(s) YIN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, VS. MARK A. DAVIS and JANET G. DAVIS, Defendants. CIVIL DIVISION NO.: 0~. - 13~c/ NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON Notice of Defendant's Rights To: Janet G. Davis 107 Hammond Road Shippensburg, PA 17257 A judgment in the amount of $94,076.09 has been entered against you and in favor of the plaintiffwithout any prior notice or hearing basedon a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriffmay 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 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 Avenue Carlisle, PA 17013 Phone (717) 249-3166 (800) 990-9108 Respectfully Submitted: JAMES, SI~ ~CONNELLY LLP By: Sco~t . D~etteriek, E~quire Attorney I.D.#55650 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 THE COURT OF COMMON PLEAS OF CUMBERLAND ~OUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMP ','Y OF C t ERSSUR6, Plaintiff, : NO.: : : VS. MARK A. DAVIS and JANET G. DAVIS, CIVIL DIVISION Defendants. PETITION TO STRIKE JUDGMENT Request for Prompt Hearing I hereby certify that I did not voluntarily, intelligently and knowingly give up my fight to notice and hearing prior to the entry of judgment. I petition the court to strike the judgment on this ground and request a prompt heating on this issue. I verify that the statements made in this Request for Hearing are tree and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. {}4904 relating to unswom falsification to authorities. Notice of hearing should be given to me at: Street Address City, State Telephone Number Dated: Defendant(s) ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, MARK A. DAVIS and JANET G. DAVIS, Defendants CIVIL D IVISION NO. 024354 CIVIL TERM DEFENDANTS' PETITION TO OPEN AND/OR STRIKE CONFESSION OF JUDGMENT Defendants, Mark A. Davis and Janet G. Davis, by and through their attorneys, Weigle & Associates, P.C., and Jerry A. Weigle, Esquire, respectfully petition this Court to open and/or strike the confession of judgment in the above-captioned matter and avers as follows: Plaintiff entered confession of judgment on March 19, 2002, under authority in the Warrant of Attorney in a $60,000.00 Note and $23,250.00 Note, as referenced thereto in Plaintiff s Complaint in Confession of Judgment incorporated herein and attached hereto as Exhibit "A." On March 21, 2002 a Confession of Judgment together with the Complaint in Confession of Judgment was served upon the Defendants. Plaintiff asserts in the Confession of Judgment that the outstanding principal balance of the $23,250.00 Note is $23,250.00. However, Defendants have made numerous payments on said debt and aver that said outstanding principal balance is $22,321.28 as shown on Defendants' Loan Statement, dated April 5, 2002, incorporated herein and attached hereto as Exhibit "B." Defendants assert that Plaintiffs Confession of Judgment in the amount of $94,076.09 is incorrect and should be stricken from the record. Defendants further assert that they did not voluntarily, intelligently and knowingly give up their right to notice and heating prior to the entry of the aforesaid judgment entered. WEIGLE & ASSOCIATES, RE. -- ATTORNEYS AT LAW -- 126 EAST KIN6 STREET -- SHIPPENSBURG, PA ~7257-1397 WHEREFORE, Defendants, Mark A. Davis and Janet G. Davis, respectfully request that this Honorable Court open and/or strike the Confession of Judgment entered by the Plaintiff in the above-captioned matter and permit Defendants to answer the Complaint. By: Respectfully submitted: WEIGLE & ASSOCIATES, P.C. Jerry,{. Weigle,~l~squire Attomey I.D. #01624 Joseph P. Ruane, Esquire Attorney I.D. #71577 Attorneys for Defendant 126 East King Street Shippensburg, PA 17257 Telephone (717)532-7388 WEI~iLE & ASSOCIATES, I:~C. -- ATTORNEYS AT LAW 126 EAST KIBIG STREET -- SHIPPENSBUFIG, PA 17257-1397 VERIFICATION I verify that the statements made in the foregoing Petition to Open and/or Strike Judgment are true and correct. I understand that false statemems herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities. Dated: /~]~p, ] ~. 7~ ~-Z(]~TL MARK A. DAVIS WEIGLE & ASSOCIATES, g~C, -- ATTORNEYS AT LAW -- 126 E~$T KING STREET -- SHIPPENSBURG, PA 1725741397 VERIFICATION I verify that the statements made in the foregoing Petition to Open and/or Strike Judgment are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unswom falsification to authorities. ~ff~NJST ~. D~8/IS WEIGLE & ASSOCIATES, I~C. -- ATTORNEYS AT LAW -- 126 EAST KING STREET SHIPPENSBURG, PA 17257-1397 TRUST CHAMBERSBURG BOLLING SPRINGS MARION MONT ALTO NEWVILLE SHIPPENSBURG WAYNESBORO CARLISLE O02Z OZ06 45 ,* POST MATURITY NOTICE ~AYM~NT DUE DATE: 4-05-C: PRINCIPAL: INTEREST: kATE CHARGE: $1E:i.E AMT DUE: '~2:3,688.i SDC 10 MARK A DAVIS JANET G DAVIS 107 HAMMOND RD SHIPPENSBURG PA 17~57-976B I:5022 ESOD': ENTER AMOUNT PAIC ACCOUNT NUMBEF 0~-000i-1007~1~-90( PLEASE RETURN THE TOP SECTION OF THIS STATEMENT WITH-YOUR PAYMENT. SECTION FOR YOUR RECORDS. ACCOUNT: 02~-0001-1007916-.9003 PAGE * POST MATURITY NOTICE * STATEMENT DATE 3-ZS-ZOOZ MATURITY DATE 3-06-ZOOZ PAYMENT DUE'DATE 4-05-Z00~ RETAIN THIS i OF i PAYMENT Db $~3,688.11 TRANSACTION TRANSACTION DATE DESCRIPTION RATE AMOUNT BALANCE 3-06-0Z BALANCE FORWARD 4-05-0Z INTEREST ENDING BALANCE **** 107 HAMMOND ROAD, SHiPPENSBURG DAYS INTERES $2~,321.Z8 $Z~,3~1.~8 30 $169.7i TOTALS: AMOUNT DUE: $23,688.ii PRINCIPAL: iNTEREST: $1,185.~3 LATE CHARGE: $181.50 MAlL FARMERS AND MERCHANTS TRUST COMPANY PAYMENTS TO: P.O. BOX 6010 CHAM~ERS~URG, PA I7Z01-~010 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, VS. MARK A. DAVIS and JANET G. DAVIS, Defendants. CIVIL DIVISION NO.: ~ ~ J3g¥ ! CONFESSION OF JUDGMENT Pursuant to the authority in the Warrant of Attorney contained in the aforesaid $60,000.00 Note and $23,250.00 Note, copies of which are attached to the Complaint filed in this action, I appear for the Defendants and confess judgment in favor of Plaintiff and against Defendants as follows: $23,250.00 Note Principal $23,250.00 Interest to 3/11/02 $ 987.27 Late Charges $ 167.09 Attorneys' Fees $ 2,440.43 (10% of the total amount due) TOTAL with interest on the principal sum ($23,250.00) from March 11, $26,844.79 2002 at $5.65 per diem. $60,000.00 Note Principal Interest to 3/11/02 Attorneys' Fees (10% of thc total amount due) TOTAl. with interest on the principal sum ($60.000.00) from March 11. $60,000.00 $ 1,119.37 $ 6,111.93 $67,23 !.30 2002 at $9.58 per diem. GRAND TOTAl, $94,076.09 with interest on the principal sums ($83,250.00) from March 11, 2002 at $15.23 per diem. JAMES~ CONNELLY LLP S cot t~A ./D ~C'~1~, Esq m re PA lD #55650 Attorneys for Defendant Pro Hac Vice IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, VS. MARK A. DAVIS and SANET G. DAVIS, Defendants. CIVIL DIVISION : NO.: ~,~ ~ .' AFFIDAVIT OF BUSINESS TRANSACTION COMMONWEALTH OF PENNSYLVANIA : COUNTY OF DAUPHIN : .' SS: Before me, the undersigned authority, a Notary Public in and for said County and Commonwealth, personally appeared Scott A. Diettefiek, Esquire, attorney for and authorized representative of Plaintiffwho, being duly sworn according to law, deposes and says that to the best of his knowledge, information and belief the Note, the original or copy of which is attached to the Complaint filed in this action, was executed by the Dele business transaction, and was not executed for consumer or ho~ §Cott A~) SWORN TO AND SUBSCRIBED BEFORE ME THIS [4/A DAY OF "-",'~,](a, ~/-. _, 2002. Notary Public tants in eo_njunetion with a tterick, Esquire MY COMMISSION EXPIRES: NOTARIAL MICHELLE ELLIO1T, NOTAi~y '~UUMELSTOWN, DAUPHIN COUNTY. PA COMMISSION EXPIRES JUNE 9. 2003 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, : Defendants. : VS. MARK A. DAVIS and JANET G. DAVIS, CIVIL DIVISIOI(/ NO.: ~2 -- NOTICE OF ORDER, DECREE OR JUDGMENT TO: ( ) Plaintiff (X) Defendant - Mark A. Davis ( ) Additional Defendant(s) You are hereby notified that an Order, Decree or Judgment was entered in the above-captioned proceeding on ( ) A copy of the Order or Decree is as follows: or (X) The judgment is as follows: $94,076.09 with interest on the principal sums ($83,250.00) from March I l, 2002 at $15.23 per diem. Prothonotary IN THE COURT OF COMMON PLEAS OF CUMBERLAND coUNTy, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, Defendants. CIVIL DIVISION NO.: NOTICE OF ORDER, DECREE OR JUDGMENT TO: ( ) Plaintiff (X) Defendant - Janet G. Davis ( ) Additional Defendant(s) You are hereby notified that an Order, Decree or Judgment was entered in the above-captioned proceeding on ff'Y~9._c~ Iq. ~,,. ( ) A copy of the Order or Decree is as follows: or (X) The judgment is as follows: $94,076.09 with interest on the principal sums ($83,250.00) from March 11, 2002 at $15.23 per diem. Prothonotary THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, pENNsYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, Defendants. I hereby certify that the address of Plaintiff is: P.O. Box "T", 20 South Main Street Chambersburg, PA 17201 and the last known address of Defendants is: 107 Ilammond noad, Shippensburg, PA 17257 Attorneys/'or Plaintiff CIVIL DIVISION' ISSUE NO.: TYPE' OF PLEADING: CIVIL ACTION - COMPLAINT IN CONFESSION OF. JUDGMENT CODE - FILE ON BEHALF OF: Farmers and Merchants Trust Company of Chambersburg, Plaintiff COUNSEL OF RECORD FOR THIS PARTY: Scott A. Diettcrick, Esquire PA ID #55650 James, Smith, Durkin & Connclly LLP P.O. Box 650 Hershey, PA 17033 (717) 533-3280 II IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA_ FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, CIVIL DIVISION Plaintiff, NO.: VS. MARK A. DAVIS and JANET G. DAVIS, Defendants. : CIVIL ACTION - COMPLAINT IN CONFESSION OF JUDGMENT AND NOW, comes Farmers and Merchants Trust Company of Chambersburg, Plaintiff, by and through its attorneys, James, Smith, Durkin & Connelly LLP, and files this Complaint in Confession of Judgment as follows: 1. Farmers and Merchants Trust Company of Chambersbsurg is a financial institution existing under the laws of the United States of America, with its principal place of business located at P.O. Box "T", 20 South Main Street, Chambersburg, Pennsylvania 17201. 2. Defendants, Mark A. Davis and Janet G. Davis, are adult individuals whose last known address is 107 Hammond Road, Shippensburg, Pennsylvania 17201. 3. On or about April 21, 2000, Defendants executed and delivered a certain Promissory Note in favor of Plaintiff in the original principal amount of $23,250.00 ("$23,250.00 Note"), which Note authorized the confession of judgment against Defendants. A copy of said Note, which copy is a true and correct reproduction of the original $23,250.00 Note, is marked Exhibit "B", attached hereto and made a part hereof. 4. On or about October 31, 2000, Defendants executed and delivered a certain Promissory Note in favor of Plaintiff in the original principal amount of $60,000.00 ("$60,000.00 Note"), which Note authorized the confession of judgment against'Defendants. A copy of said Note, which copy is a true and correct reproduction of the original $60,000.00 Note, is marked _ Exhibit "A", attached hereto and made a part hereof. CONFESSION OF JUDGMENT UNDER $23.250.00 NOTE Plaintiff hereby incorporates by reference its averments in paragraphs 1 through 4 as if set forth fully herein. 6. The $23,250.00 Note has not been released, transferred or assigned. 7. Judgment has not been entered against the Defendants on the $23,250.00 Note in any jurisdiction. 8. The aforesaid $23,250.00 Note authorizes the entry of judgment without default thereon or the occurrence of a condition precedent. 9. The judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 10. The itemization of the amount due, including ~nterest and attorney fees as authorized by the $23,250.00 Note, is as follows: Principal $23,250.00 Interest to 3/11/02 $ 987.27 Late Charges $ 167.09 Attorneys' Fees $ 2,440.43 (10% of the total amount due) TOTAL $26,844.79 with interest on the principal sum ($23,250.00) from March 11, 2002 at $5.65 per diem. · WHEREFORE, Plaintiff, as authorized by the warrant of attorney contmned in the $23,250.00 Note, demands judgment against the Defendants in the mount of $26,844.79 with-. interest on the principal sum from March 11, 2002 at $5.65 per diem. Il. C~ONFESSION OF JUDGMENT UNDER $60,000.00 NOTE Plaintiff hereby incorporates by referenc~e its averments in Paragraphs 1 through 10 as if set forth fully herein. 12. The $60,000.00 Note has not been released, transferred or assigned. 13. Judgment has not been entered against the Defendants~on the $60,000.00 Note in any jurisdiction. 14. The aforesaid $60,000.00 Note authorizes the entry of judgment without default thereon or the occurrence of a condition precedent. 15. The judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 16. The itemization of the amount due, including interest and attorneys' fees as authorized by the $60,000.00 Note, is as follows: Principal Interest to 3/11/02 Attorneys' Fees (10% of the total amount due) $60,000.00 $ 1,119.37 $ 6,111.93 TOTAL $67,231.30 with interest on the principal sum ($60,000.00) from March 11, 2002 at $9.58 per diem. · WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the $60,000.00 Note, demands judgment ·against the Defendants in the amount of $67,231.30 with_. interest on the principal sum from March 1 l, 2002 at $9.58 per diem. WHEREFORE, Plaintiff, as authorized by the warrants of attorney contained in the $60,000.00 Note and the $23,250.00 Note, demands judgment in its favor and against Defendants in the total sum of $94,076.09 with interest on the principal sums ($83,250.00) from March 1 l, 2002 at the rate of $15.23 per diem, and brings said instrument to Court to recover the said sum. Dated: JAMES, ~& CONNELLY LLP By: __ PA ID #55650 Attorneys for Plaintiff P.O. Box 650 Hershey, PA 17033 (717) 533-3280 EXHIBIT "A" PROMISSORY NOTE ~ t.':a~t,, ~t~ I Maturity I Loan NO I: ~ "~ A~C°unt Officer .Inttiats Prln~Pal :, "1 (717) 264-6116 Principal Amount: $60,000.00 initial Rate: 10.500% Date of Note: October 31, 2000 PROMISE TO PAY. Mark A. Davis and Janet G. Davis ('Borrower") Jointly and severally prom~se to pay to Farmers and Merchants Trust Company of Champa~sburg ('Lender'), o~ order, in lawful money of the United States of America, the principal amount of Sixty Thousand & 00/100 Dollarl ($60,0~0.00), together' with interest on the unpaid principal balance from October 31, 2iX)0, until paid [n full. PAYMENT. Sorrower will pay thla loan in one principal payment of $60,000.00 plus interest on July 10, 2D01. This payment due on July tO, 2001, will be for all principal and all accttJed Interest not yet paid, In addition, Borrower will pay regular monthty payments et all accrued PROMISSORY NOTE (Continued) Page 2 SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: x C Mark A I u x-~.~_J.L_~.%~ __ J/e~eIG. Davis, In,_viSually LENDER: FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG NOTICE TO COSIGNER YOUR ©r~Jt reCord. EXHIBIT "B" PROMISSORY NOTE · Borrower: Mark A. Davis (SSN: 095-50-9557) Lender: FARMERS AND MERCHANTS TRUST COMPANY OF Janet G. Davis (SSN: 090-50-9850) CHAMBERSB1JRG MEMORIAL SQUARE OFFICE ~ 107 Hammond Road Shippenaburg, PA 17257 20 SOUTH MAIN STREET P. O. BOX 6010 CHAMBERSBURG, PA 17201-6010 Principal Amount: $23,250.00 Date of Note: April 21, 2000 PROMISE TO PAY. Mark A. Davis and Janet G. Davis ("Borrower") promise to pay to FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG ("Lender"), or order, in lawful money of the United States of Arherica, the principal amount of Twenty Three Thousand Two Hundred Fifty & 00/100 Dollars ($23,250.00), together with interest on the unpaid principal balance from April 21, 2000, until paid in full. PAYMENT. Subject to any payment changes resulting from changes n the Index, Borrower will pay this loan in accordance with the following payment echedule: 60 consecutive monthly principal and interest payments of $240.24 each, beginning June 5, 2000, with interest calculated on the unpaid principal balances at an Interest rate of 9.250% per annum; 119 consecutive monthly principal and Interest payments in the initial amount of $242.81 each, beginning June 5, 2005, with interest calculated on the unpaid principal balances at an interest rate of 0.500 percentage paints over the Index described below; and I principal and interest payment in the initial amount of $242.78 on May 5, 2015, with interest calculated on the unpaid principal balances at an interest rate of 0.500 percentage points over the Index described below. This estimated final payment is based on the assumption that all payments will be made exactly as scheduled and that the Index does not change; the actual final payment will be for all principal and accrued interest not yet paid, together with any other unpaid amounts under this Note. Interest on this Not~ is computed on a 365/365 simple interest basis; that is, by applying the ratio of the annual interest rate over the number.of days in a year, multiplied by the outstanding principal balance, muftiplieq by the actual number of days the principal balance is outstanding. Borrower w[ll pay Lender at Lender's address shown above or at such other place as Lender may designate in wdting. Unless otherwise agreed or required by applicable law, payments will be applied first to accrued unpaid interest, then to principal, end any remaining amount to any unpaid collection costs and late charges. VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an independent index which is the New York Prime Rate as published in the Wall Street Journal, When a range of rates has been published, the higher of the rates wilt be used. (the 'Index"), The Index is not necessarily the lowest rate charged by Lender o~1 its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notice to Borrower. Lender wiJl tell Borrower the current Index rate upon Borrower's request Borrower understands that Lender may make loans based on other rates as well. The interest rate change will not occur more often than each time there has been a change in the Index. The Index currently is 9.000% par annum. The interest rate or rates to be app{[ed to the unpaid principal balance of this Note will be the rate or rates set forth above in the "Payment' section. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law. Whenever increases occur in the interest rate, Lender, at its option, may do one or more o! the following: (al increase Borrower's payments to ensure Borrower's loan wnl pay off by its original final maturity date, (b) increase Borrower's payments to cover accruing interest, (c) increase the number of Borrower's payments, and (d) continue Borrower's payments at the same amount and increase Borrower's final payment. PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Sorrower of Borrower's obligation to continue to make payments under the payment schedule. Rather, they will reduce the p~incipal balance due and may result in Borrower making fewer payments. LATE CHARGE. If a payment is 16 days or more late, Borrower will be charged 6.000% of the regularly scheduled payment, OEFAULT. Borrower will be in default if any of the following happens: (al Borrower fails to make any payment when due. (b) Borrower breaks any promise Borrower has made to Lender, or Borrower fails to comply with or to partorm when due any other term, obligation, covenant, or condition coataineq in this Note or any agreement related to this Note, or in any other agreement or loan Borrower has with Lender, (c) Borrower defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person thai may materially affect any of Borrower's property or Borrower's ability to repay this Note or pedorm Borrower's obligations under this Note or any of the Ralated Occumants. (d) Any representation or statement made or furnished to Lender by Borrower or on Borrower's behalf is false or misleading in any material respect either now or at the time n~da or furnished. (el Borrower dies or becomes insolvent, a receiver is appointed for any part of Borrower's property, Borrower makes an assignment for the benefit gl creditors, or any procesding is commenced either by Borrower or against Borrower under any bankruptcy or insolvency laws. (fl Any creditor tries to take any of Borrower's property on or in which Lender has a lien or security interest. This includes a garnishment of any of Borrower's accounts with Lender. (gl Any of the events described in this default section occurs with respect to any guarantor of this Note. {h) A material adverse change occurs in Borrower's financial cendit~on, or Lender believes the prospect of payment or performance of the Indebtedness is impaired. (il Lender in good faith deems itself insecure. LENDER'S RIGHTS. Upon defaull, Lender may, after giving such notices as requireq by applicaole law, dec,are ~he ent~ro unpaid prrncipal balance on this Note and all accrued unpaid interest immediately Qua, and then Borrower will pay that amount. Upon Qefault, including failure to pay upon final maturity, Lender, at its option, may also, if permitteq under applicable law, increase the variable [ntarest rate on this Note to 2.500 percentage points over the Index. The interest rate will not exceed the maximum rale permitted by applicable taw. Lander may hire or pay someone else to help collect this Note if Sorrower does not pay. Borrower also will pay Lender that amount. This includes, subject to any limits under applicable law. Lender's attorneys fees and Lenders lega expenses whether or nol there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, if not pronib~ted by applicable law. Borrower also will pay any court costs, in addition to all other sums provided by law. Il judgment is entered ~n connection with this Note, interest will continue to accrue on this Note after judgment at the interest rate applicable to trois Note at tt~e time judgment is entered This Note has been delivered to Lender and accepted by Lender in the Commonwealth of Pennsylvania. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts gl Franklin County, the Commonwealth of Pennsylvania. This Note shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. DISHONORED ITEM FEE. Borrower wdl pa~/ a f,~e to Lender ot $2500 il Borrowe~ makes a pavm,:nl ~n Borrower3 loan and ~.~ check )4-21-2000 PROMISSORY NOTE · ' Page 2 Loan No (Continued) some other account), including Lender all Borrower's right, time and interesl in and to, Borrower's accounts with Lender (whether checking, sawngs, or without limitation all accounts t~eld jointly with someone else and all accounts Borrower may open in the future, excluding however all IRA and Keogh accounts, and all trust accounts for which the grant of a security interest would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on this Note against any and all such accounts. COLLATERAL. This Note is secured by a Mortgage and an Assignment of All Rents dated April 21, 2000, to Lender on real property located in Cumberland County, Commonwealth of Pennsylvania, all the terms and conditions of which are hereby incorporated and made a part of this Note. GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who s*gns, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, protest and notice dishonor. Upon any change in the lerms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such .parties agree that Lender may renew or extend (repeatedly and for any length ol lime) this loan, or release any party or guarantor or collateral; or impair, fail to realize upon or pedect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or not[ce to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGMENT. Borrower hereby irrevccably authorizes and empowers any attorney or the Prothonotary or Clerk of any Court in the Commonwealth of Pennsylvania, or elsewhere, to appear at any time for Borrower, and with or without complaint flied, as of any term, confess or enter judgment against Borrower for the entire principal balance of this Note and a~l accrued interest, together with costs of suit, and an attorney's commission of ten percent (10%) of the unpaid principal balance and accrued interest for coil,action, but Jn any event not less than Five Hundred Dollars ($500); and for so doing, this Note or a copy ol this Note verified by affidavit shall be sufficient warrant. The authority granted in this Note conless judgment against Borrower shall not be exhausted by any exercise of that authority, but shall continue from time to time and at all times unMI payment in full of all amounts due under this Note. The lien arising from any judgment confessed or entered pursuant to the foregoing authority shall not extend to any of Borrower's residential real property as that term is defined in the Pennsylvania Act of January 30, 1974 (Pa. Laws 13, No. 6), referred to as the Loan Interest and Protection Law, as amended, and the holder of any judgment confessed or entered pursuant to the forgoing authority shall not, in enforcement of any such judgment, execute, levy or otherwise proceed ogaln'st any such residential real property; provided, however, that the lien of such judgment shall extend to such residential real property and that the holder thereof shall be permitted to execute, levy or proceed against such residential real property lrom and after the entry of a judgment as contemplated by Section 407 of such Loan Interest and Protection Law and Rules 2981 to 2986 of the Pennsylvania Rules of Civil Procedure, or successor or similar statutes and rules. No limitation of lien or any execution, levy or other enfomement contained in the immediately preceding sentence shall apply with respect to any judgment obtained other than by the foregoing authority to confess or enter judgment. PRIOR TO SIGNING THIS NOTE, EACH BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS AND THE NOTICE TO COSIGNER SET FORTH BELOW. EACH BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE. THIS NOTE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED. BORROWER:~.¥ ~ , x Mark A. Davis SIg~.~k~ In the presence of: x 22"¥ Witness LENDER: ii~M..~ ~PANY OF CHAMBERSBuRG Authorized Officer NOTICE TO COSIGNER You are being asked to guarantee this debt. Think carefully before you do. If the borrower doesn't pay the debt, you will have to. Be sure you can afford to pay if you have to, and that you want to accept this responsibility. You may have lo pay up to the tull amount of the debt if the borrower does not pay. You may also have to pay late fees or collection costs, which increaae this amount. The lender can collect this debt from you without first trying to collect from the borrower. The lender can use the same collection methods against you that can be used against the borrower, such as suing you, garnishing your wages, etc. If this debt is ever in default, that fact may become a part of YOUR credit record. This notice is not the contract that makes you liable lot the debt. Sandra G. Small, Assistant Vice President, and duly authorized representative of Farmers & Merchants Trust Company of Chambersburg, deposes and says subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities that the facts set forth in the foregoing Complaint in Confession of Judgment are true and correct to her information and belief. 'Sandra G. Small Assistant Vice President ~IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. Plaintiff, MARK A. DAVIS and JANET G. DAVIS, Defendants. : NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON Not,ce of Defendant s R~ght To: Mark A. Davis 107 Hammond Road Shippensburg, PA 17257 A judgment in the amount of $94,076.09 has been entered against you and in favor of the plaintiff without any prior notice or hearing based on a confession o f judgment contained in a written agreement or other paper allegedly signed by you. The sheriffmay 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SBT FORTH BELOW TO FIND OUT WHERE YOU CAN G~T LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 Phone (717) 249-3166 (800) 990-9108 Respectfully .Submitted: JAMES, S~& CONNELLY LLP By:_ Scot ~terick~, Esquire Attomey I.D.#55650 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST CIVIL DIVISION' COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, Defendants. NO.: PETITION TO STRIKE JUDGMENT Request' for Prompt Hearing I hereby certify that I did not voluntarily, intelligently and knowingly give up my right to notice and hearing prior to the entry ofjudgment. I petition the court to strike the judgment on this ground and request a prompt hearing on this issue. I verify that the statements made in this Request for Hearing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. {}4904 relating to unswom falsification to authorities. Notice of hearing should be given to me at: Street Address City, State Telephone Number Dated: Defendant(s) IN THE COURT OF COMMON PLEAS OF CUMBERLAND coUIqTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST CIVIL DIVISION' COMPANY OF CHAMBERSBURG, Plaintiff, NO.: VS. MARK A. DAVIS and JANET G. DAVIS, Defendants. NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON Notice of Defendant's Rights To: Janet G. Davis 107 Hammond Road Shippensburg, PA 17257 A judgment in the amount of $94,076.09 has been entered against you and in favor of the plaintiffwithout any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriffmay 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 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 Avenue Carlisle, PA 17013 Phone (717) 249-3166 (800) 990-9! 08 Respectfully Submitted: JAMES, By: ~ ~CONNELLY LLP Sco~t D~etterick, Esquire Attorney I.D.#55650 P.O. Box 650 Hershey, PA 17033 (717) 533-3280 THE CO F COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST : CIVIL DIVISION ~ COMPANY OF CHAMBERSBURG, Plaintiff, NO.: MARK A. DAVIS and JANET G. DAVIS, Defendants. PETITION TO STRIKE JUDGMENT Request for Prompt Hearing I hereby certify that I did not voluntarily, intelligently and knowingly give up my fight to notice and hearing prior to the entry ofjudgment. I petition the court to strike the judgment on this ground and request a prompt hearing on this issue. I verify that the statements made in this Request for Hearing are tree and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Notice of hearing should be given to me at: Street Address City, State Telephone Number Dated: Defendant(s) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, MARK A. DAVIS and JANET G. DAVIS, Defendants CIVIL DIVISION NO. 02-1354 CIVIL TERM ORDER AND NOW, this ~'~ day of ,* ~.~'k the attached petition, it is hereby ordered that: ,2002, upon consideration of A nde is issued upon the Plaintiff to show cause why the Defendants are not entitled to the relief requested. 2. The Plaintiff shall file an answer to the petition within twenty (20) days of service upon the Plaintiff. 3. The petition shall be decided upon Pa. R.C.P. No. 2950 et seq. /t/~ s~-v-~-- _ ],~_ I: O p.n,. J. Scott A. Dietterick, Esquire Attorney for Plaintiff ~ James, Smith, Durkin & Connelly, LLP ¥~.~t.. o.* PO Box 650 Hershey, PA 17033 Jerry A. Weigle, Esquire Attorney for Defendants Weigle & Associates, P.C. 126 East King Street Shippensburg, PA 17257 V~NYA'IX~NNa~d IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, MARK A. DAVIS and JANET G. DAVIS, Defendants CIVIL DIVISION NO. 02-1354 CIVIL TERM AFFIDAVIT OF SERVICF~ COMMONWEALTH OF PENNSYLVANIA : : SS COUNTY OF CUMBERLAND : Patficia A. Frey, being duly sworn according to law, deposes and says that on April 30, 2002, true and attested copies of Defendant's Petition to Open and/or Strike Confession of Judgment with Order of Court were served upon the Plaintiff's Attorney, Scott A. Dietterick, Esquire. Manner of service: by mailing the same postage paid, certified mail, return receipt requested, at Shippensburg, Pennsylvania, addressed as follows: Scott A. Dietterick, Esquire James, Smith, Durkin & Connelly, LLP 134 Sipe Avenue Hummelstown, PA 17036 PATRICIA A. FREY (J Sworn to and subscribed before me this 1st day of May, 2002 .... No~ Public ~tflola [ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, MARK A. DAVIS and JANET G. DAVIS, Defendants CIVIL DIVISION NO. 02-1354 CIVIL TERM PROOF OF SERVICE $ $1.49 10.OO I.J'} Certified Fee ~ Return Receipt Fee ~':/ m He ' (Endorsement Required) ~1 (Endorsement Requlre~ I S~treet, Apt. No.; or PO E~ox No. I I I I ~ . .--.-- ..... -- , I ',. ° ----"' ---- t'b~{ %,~a.~' t:~nu~ In F.~r~ [] 6. ~: ~ ~) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, Defendants. CIVIL DIVISION NO.: 02-1354 Civil Term PLAINTIFF'S ANSWER TO DEFENDANTS' PETITION TO OPEN AND/OR STRIKE CONFESSION OF JUDGMENT AND NOW, comes the Plaintiff, Farmers and Merchants Trust Company of Chambersburg ("Plaintiff'), by and through its attorneys, James, Smith, Durkin & Connelly LLP and files this Answer to Defendants' Petition to Open And/Or Strike Confession of Judgment as follows: 1. 2. 3. Admitted. Admitted. Admitted in part, denied in part. Plaintiff admits that the principal balance is, in fact, $22,321.28 rather than the $23,250.00 as averred in Plaintiff's Complaint, yet the total amount due is no less. In fact, the interest on said Statement attached as Exhibit "B" to Defendants' Petition is even greater than the amount claimed in Plaintiff's Complaint. Since no payments have been made for some time, interest, late charges and attorneys' fees and costs continue to accrue far beyond the amount confessed. Denied. Plaintiff specifically denies that the amount claimed due of $94,076.09 is incorrect. 5. Denied. Plaintiff specifically denies that Defendants did not voluntarily, intelligently and knowingly waive their rights to notice and hearing prior to the entry of Plaintiff's Judgment. In fact, the Note signed by Defendants and attached to Plaintiff's Complaint contains specific language that Defendants knowingly waived their rights with respect to the entry of the Confession of Judgment and that both parties acknowledged the loan was for commercial business purposes. WHEREFORE, Plaintiff, Farmers and Merchants Trust Company of Chambersburg, respectfully requests this Honorable Court deny Defendants' Petition to Open And/Or Strike Confession of Judgment, along with such other relief as this Honorable Court deems just. Respectfully submitted: JAMES,~ CONNELLY LLP By: Sco~ V PA ID #55650 Attorney for Plaintiff P.O. Box 650 Hershey, PA 17033 (717) 533-3280 VERIFICATION I, Lorie M. Heckman, Credit Recovery Officer, on behalf of Farmers and Merchants Trust Company of Chambersburg, depose and say subject to the penalties of 18 Pa.C.S.A., sec.4904 relating to unswom falsification to authorities that the facts set forth in the foregoing Answer to Defendants' Petition to Open And/Or Strike Confession of Judgment are tree and correct to the best of my information, knowledge and belief. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, VS. MARK A. DAVIS and JANET G. DAVIS, Plaintiff, : : : : Defendants. : CIVIL DIVISION NO.: 02-1354 Civil Term CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Answer of Farmers and Merchants Trust Company of Chambersburg to Defendants' Petition to Open And/Or Strike Confession of Judgment was served on the following this ]~ ~ day of ~Lo~. 2002, via First Class U. S. Mail, Postage Pre-paid: Jerry A. Weigle, Esquire Attorney for Defendants Weigle & Associates, P.C. 126 East King Street Shippensburg, PA 17257 Joseph P. Ruane, Esquire' Attorney for Defendants Weigle & Associates, P.C. 126 East King Street Shippensburg, PA 17257 By:JAMES' ~NNELLY LLP Scott Prf'.D~tt~ v PA I.D. #5~651~ Attorneys for Movant P.O. Box 650 Hershey, PA 17033 (717) 533-3280 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FARMERS AND MERCHANTS TRUST COMPANY OF CHAMBERSBURG, Plaintiff, MARK A. DAVIS and JANET G. DAVIS, Defendants CIVIL DIVISION NO. 02-1354 CIVIL TERM PRAECIPE TO WITHDRAW DEFENDANTS' PETITION TO OPEN AND/OR STRIKE CONFESSION OF JUDGMENT TO THE PROTHONOTARY: Please withdraw the Defendants' Petition to Open and/or Strike Confession of Judgment in the above-captioned matter as the same has been resolved. Council for Plaintiff concurs in this withdrawal. Respectfully submitted: WEIGLE & ASSOCIATES, ~ Joseph P. Ruane, Esquire Attorney I.D. #71577 Attorneys for Defendant 126 East King Street Shippensburg, PA 17257 Telephone (717)532-7388 WEIgLE & ASSOCIATES. P.C. -- ATTORNEYS AT LAW -- 126 eAST KINg STREET -- SHIPPENSBURG, DA 17257-1397