HomeMy WebLinkAbout02-1630ALLFIRST BANK,
Plaintiff
VS.
SAMUEL A. CALAMAN, Individually
and t/a CALAMAN'S LAWN SERVICE,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: No. Oa- io',
:
;
:
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the Warrant of Attorney, a copy of which is
attached to the Complaint filed in this action, I appear for the Defendant and confess judgment
in favor of the Plaintiff and against Defendant as follows:
Principal Sum Due -
Interest to 4/2/02 -
Late Fees -
Attorney's Fees (15% of unpaid principal) -
Total -
$ 9,941.77
123.86
11.37
1,491.27
$11,568.27
Together with interest which continues to accrue at the contract rate ($2.19 per diem), together
with all charges, fees, and expenses plus court costs and reasonable attorneys' fees as allowed
by the Warrant of Attorney for confession of judgment contained in the Note.
By:~ I.D. #55774
937 Willow Street
P.O. Box 1140
Lebanon, PA 1704~-1140
(717) 274-3644
Attorney for Defendant
ALLFIRST BANK,
Plaintiff
VS.
SAMUEL A. CALAMAN, Individually
and t/a CALAMAN'S LAWN SERVICE,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
.
:No. //o.2C
.'
.
:
COMPLAINT
CONFESSION OF JUDGMENT
Plaimiff files this Complaint pursuant to Pa. R.C.P. No. 2951 (b) for judgmem by
confession and avers the following:
1. The Plaintiff is Allfirst Bank, a Maryland State Chartered Commercial Bank, with
an office located at 305 West Chesapeake Avenue, 4th Floor, Towson, Maryland 21204.
2. The Defendant is Samuel A. Calaman, individually and t/a Calaman's Law Service,
with a last known address of 456 Mt. Rock Road, Newville, Cumberland County, Pennsylvania
17241.
3. Attached hereto is a tree and correct copy of the Commercial Promissory Note and
Security Agreemem (the "Note") duly executed by Defendant.
4. The Note has not been assigned.
5. Judgment has not been entered on the Note in any jurisdiction.
6. Default was made by the Defendant in the payment of the full installment of
principal and interest due on February 5, 2002 and all subsequent installments, whereby the
entire sum is in default and immediately due and payable.
7. As a consequence of the foregoing and pursuant to the Warrant of Attorney in the
Note, Defendant is liable to Plaintiff as follows:
Principal Sum Due -
Interest to 4/2/02 -
Late Fees -
Attorney' s Fees (15 % of unpaid principal) -
Total -
$ 9,941.77
123.86
11.37
1,491.27
$11,568.27
Together with interest which continues to accrue at the contract rate ($2.19 per diem), together
with all charges, fees, and expenses plus court costs and reasonable attorneys' fees as allowed
by the Warrant of Attorney for confession of judgment contained in the Note.
8. Judgment is not being entered by confession against a natural person in connection
with a consumer credit transaction.
WHEREFORE, Plaintiff demands judgment in the sum off
Principal Sum Due -
Interest to 4/2/02 -
Late Fees -
Attorney's Fees (15% of unpaid principal) -
Total -
Together with interest which continues to accrue at the contract rate ($2.19 per diem), together
$ 9,941.77
123.86
11.37
1,491.27
$11,568.27
with all charges, fees, and expenses plus court costs and reasonable attorneys' fees as allowed
by the Warrant of Attorney for confession of judgment contained in the Note.
I.D. #55774
937 Willow Street
P.O. Box 1140
Lebanon, PA 17042-1140
(717) 274-3644
Attorney for Plaintiff
STATE OF MARYLAND
COUNTY OF BALTIMORE
AFFIDAVIT
SS,
Vivian P. Merenbloom, Vice President, of Allfirst Bank, being duly sworn according to
law, depose~ and says that he has authority to sign this Affidavit on behalf of Allfirst Bank and
that the facts set forth in the foregoing Complaint are true and correct to the best of her
knowledge, information and belief; and that the copy of the Commercial Promissory Note and
Security Agreement, Exhibit "A" attached to the Complaint, is a true and correct copy of the
original which is held in the files of the Plaintiff and which was executed and delivered by the
Defendant to Plaintiff.
ALLFIRST BANK
Vivian P. Merenbloom
Vice President
Sworn and subscribed to before me this:
~30{ day of ~a~ ,2002. :
Notary Public
COMMERCIAL PROMISSORY NOTE AND SECURITY AGREEMENT
~ 11,200.00 York, Pennsylvania
(City) (State)
FOR VALUE RECEIVED, tile undersigned ("Borrower") prmnises to pay to the order of Allflrst Bank, a Maryland state-chartered commereial bank ("Bm~k"), at
Bank's offices at 1123 N. George Street, York, Pe~msylvanla 17404, or at such other place as the holder of this Note and Security Agreement may from time to time
designate, the principal sma of Eleven TI)ouannd 'two llundred and 00/100 Dollars ($II,200.00), or such other amount as may be advanced from time to time to
Borrower, together with interest thereon at the rate or rates herealter specified and ,any and all other sums which may be owing to Bank by Borrower puranant to this Note and
Security Agreement. The following temps shall apply to this Note and Security Agreement.
1. INTEREST. From the date hereof until all sums due hereunder, including principal, inte~st, charges, fees and expenses are paid in full, the principal amount
outstm~ding from thne to time pumuant to this Note and Security Agreement shall bear interest at the fixed per annum rate of 7.94000%, and calculated on the basis ufa
three hundred sixty (360) days per year factor applied to the actual number of days on which there exists an unpaid balance herannder:
2. REPAYMENT. Borrower shall make payments of principal and interest mouthly, each such payment in file amount of $227.43, on tim Sth day of each month,
beginning on June S, 2001, and continuing m~tti May $, 2006, which is the final and absolute due date of this Note and Security Agreement, at which time all sums due
hereunder, including principal, interest, cimrges, l~es, and expenses shall be paid in fidL
Borrower may prepay this Note and Security Agreement in whole or in part at auy time or from time to time without premium or additioual interest. Any prepayment of the
principal balance of this Note and Security Agreement shall be applied to the outstanding principal balance of this Note and Security Agreement in the inverse order of
scheduled maturities. All payments made pursuant to this Note and Security Agreement shall be applied first to aecmed and unpaid interest, then to nnpaid expenses and
charges payable hereunder, and then to principal, or in such other order or proportion ,as the holder, in the holder's sole discretion, may elect from thne to time.
3. LATE PAYMENT CttARGE. If any pa3anent due herennder (including any pa.anent in whole or in part of principal) is not received by the holder within fffieen
(15) calendar days after its due date, Borrower shall pay a late pa3nnent charge equal to five percent (5%) oftbe amount than due.
4. GRANT OF SECURITY INTEREST. As collateral security for all obligations, indebteduass and liabilities of Borrower to Bank, whether direct or indirect (by way
of endorsement, guaranty, pledge or otherwise), liquidated or uulit01idated, joint or several, absolnte or contingent, contemplated or uncontemplated, or otherwise arising from
any loan, note, letter of credit, guaranty, overdratl, or any other duty owed by Borrower to Bank, now existing or hereafter arising, including but not limited to any and all
sums due to Bank under or pnranant to this Note and Security Agreement or any accompanying loan docmnants, any and all sums advanced by Bank to preserve or protect
the Collateral (as bereaRer defined) or to preserve, protect, or perfect Bank's security interestq and liens in the Collateral, as well as the expensas of retaking, holding,
preparing for sale, ~lling or otherwise disposing of or realizing on the Collateral, or of any exercise by Bank of Bm~.'s fights in the event of a default by Borrower or any
Other Obligor, together with Bank's attorneys' fees, expenses of collection, and court costs (collectively, 'Obligations"), and in consideration of advances from Bank to
Borrower, Borrower hereby grants and pledges to Bank a continuing security interest in the following (collectively, 'Collaterar'): 1995 Ford
1 FDKF37H3SNA82098 and including all improvem~.nlts and accessions ther~o and all spare parts, tools, accessories and attachments now owned or hereafter acquired in
connection therewith, and any maintenance agrean~ents applicable thereto, and all proceeds and products thereof, and all fights thereto. As used in this Note and Security
Agreement, the term "Other Obligor" means any person or entity other than Borrower that is now or bereaHer liable, directly, contingently or otherwise, upon or in connection
with any of the Obligations or that has granted any lien or security interest to or for the benefit of Bank to secure any of ti~ Obligations, including, but not limited to, any
guarantor, surety, endorser, or co-maker of any of the Obligations.
5. CONFESSION OF JUDGMENT. Borrower Irrevocably and unconditionally authorizes and empowers any attorney adndtted to practice before any
court of record in the United States to appear on behalf of Borrower in any court in one or more proceedings, or before any clerk thereof or prothonotary or
other court official, and to appear for, confess and enter judgment against Borrower at any time upon and after the occurrence of uny default hereunder, with
averment of default, with or witimut complaint ~ed, and without prior notice to or opportunity of Borrower for prior hearing, In favor of the holder of this Note
and Security Agreement in the furl amount of the indebtedness evidenced by this Note and Security Agreement (including principal, accrued interest and any
and all charges, fees and expenses) plus court costs, plus attorneys' fees equal to fifteen percent (15%) of the unpaid balance of principal, interest, charges, and
other sun,s due or which may become due hereunder, with release of aH errors and without right of appeal. In addition to all other courts in which judgment
may be confessed against Borrower upon this Note and Security Agreement, Borrower agrees that venue and jurisdiction shall be property in the courts of any
comtty or city of the Commonwealth of Pennsylvania or in the United States District Court for the Middle District of Pennsylvania. Borrower waives the
benefit of any and every statutei ordinance, or rule of court, xvhether now in force of hereafter enacted, which may be lawfully waived conferring upon Borrower
any right or privilege of exemption, hmnestead rights, appraisement, stay of execution or supplementary proceedings, or other relief from the enforcement or
immediate enforcement of a judgment or related proceedings on a judgment. (To the extent prohibited by applicable law, any judgment obtained by confession
shall not constitute a Hen on ally real property located in Pennsylvania which is the residence of any Borrower.) The authority trod power to appear for and
enter judgment against Borrower shah not he exhausted by one or more exercises thereof, or by any imperfect exercise thereof, and shall not be extinguished by
any judgment entered pursuant thereto; such authority and power may be exercised on one or more occasions from time to time, in the suave or different
jurisdictions, as often ,as the holder shall deem necessary or advisable. BORROWER HEREBY ACKNOWLEDGES TtlAT THE CONFESSION OF
JUDGMENT PROVISIONS IIEREIN CONTAINED WIIICII AFFECT AND WAIVE CERTA1N LEGAL RIGIITS OF BORRO~,VER IIAVE BEEN READ,
UNDERSTOOD AND VOLUNTARILY AGREED TO BY BORRO~VEIL
6. REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrower represents, ~varrants and covenants that:
6.1 Authority; Location; Name. Borrower is duly organized and existing in good standing in the state of its organization, is qualified to do business and in good standiug in all
jurisdictions where it conducts its business or its Receivables are located, and has all requisite power, authority, licenses and ponnits to own its property and can-y on its
business. The execution and delivery of this Note and Security Agreement have been duly authorized by appropriate corporate, company or partnemhip action. The principal
place of bnsiness of Borrower, the books and records relating to Borsower's business and the Collateral, and the Collateral are located at the address(e~) set forth in this Note
and Security Agreement. Borrower shall immediately advise Bank in writing of tile opening of any new place of business or the closing of any of its existing places of
business, aud of any change in Borrower's name or the location of the places where the Collateral, or books and records pertaining to the Collateral, are kept.
6.2 Hazardous Substances. Borrower has never received any notifications, citation, complaint or notice of investigation relating to tile making, storing, handling, generating
or transporting of any materials or substances which under applicable laws require special handling in collection, storage, treattnent or disposal ("flazardous Substances"),
and Borrower does not own, make, store, handle, dispose of or transport any tlazardous Substmlees in violation of any applicable laws.
6.3 ERISA. Borrower and each of its affiliates and subsidiaries ("ERISA Affiliate") which are under common control, or are part ufa controlled group, within the meaning
of the Employee Retirement Income ~leetwity Act of l~74,an nmanded ("ERISA"), are in eomplianc~ with all applicable provisions of ERISA with regard to each o1' its
employee benefit plans (ns defined in ERISA) ("Employee Benefit Pinto"). Neither a reportable event (ns defined in ERISA) nor a prohibited transfer (ns defined in ERISA)
has occurred with respect to any Employee Benefit Plan of Bce'ewer or any ERISA Affiliate. Immediately upon the occurrence of any such reportable event, Borro~vcr shall
promptly fungch to Bank notice theran/; ns filed with Pensio~ Benefit Guaranty Cnsporation ("PBGC"). Neither Borrower nor any ERISA Affiliate has completely or
partially withdrawn from any mnifiemployer plan and no such mnifi~,i~,loysr plan is in reorganization, ail ns provided by ERISA. Borrower and each ERISA Affiliate has
met its minimum funding requirements and has no unfulfilled obligafior~ under ERISA to contribute to any Employee Benefit Plan. Borrower shall promptly notify B~u~ of
any assertion by PBGC of liability of Bestower or any ERISA Affllato under Title IV of ERISA. Tbe failur~ of Borrower to pay within figrty (30) days the amount of any
liability under Title IV of ERISA demanded by PBGC shall coustltu~ a dufauR h~rennder.
6.4 Laws. Borrower shall comply at all times w/th all laws, ordinances, n~lns and re~ufatior~ of any Federal, Sta~, municipal or other public author/tins having jurisdiction
over Borrower, ~I~ Col~ or any of Boerowe~s other assets, incinding but not limited to ERI.~A and all laws r~latlng to Hazardous gubatan~s.
6.5 Taxes. Them are no unpaid l=ederal, State, city, county, or other laxcs owed by Borrower, there are no Federal, Stele, city, county or other tax lleus presently flied against
Borrower, and there are no outstanding pu~onni propen'y taxes of any kind. B~ v,~er shall pay and discharge, wben due., aH texas, l~vles, Hens, and other charges on any or
all of its essets, including but not limited to Inventory, Equipment, Receivab!ns, and Other Property and shall pay la vsi~Ftly, when due, ali other taxes, including withholding
6.6 Recording and Legal Co~s~ l:ur~er Documents. Borrower shall pay ali costs and axpemes incident to tl~ making of the loan(s) secured hereby and perfection of Benk's
security interests hereunder, iocludln~ b~t not limited to ail attorneys' fees (to the extent not prohibited by law) and ail recordation co~s and taxes incident to filing of
financing stutements and continuation ste/ements hi respect thereof. Borrower shall axcou~ and dellve~ to Bank from time to time any instruments or documents, and shall do
ail things necessary or convenient to can~ inin effect +.he provlsior~ of figs NOt~ and Se~mrity Agseemcot Borrower designa~s Bank or any of its officers as attorney-in-fact to
sign Borrower's name on any such insh'umcots or doenr~ and to file the same ns may be opproprin~. Borrower agrees that filed photocopies of financing statements and
continuation statements shall be sufficient to perfect Bank's secori~ interest he,under.
6.7 Books and Records. Borrower shall mahtnin such record~ with respect to the collateral and the cundifion (financlai and othe~vise) and operation of Borrower's business
ns Bank may request from time to time, and shall furnish Bank such informal/on w/th respect to the Collateral, account dchtor~ and the condition (fmuncial and otherwise)
and operation of Borrowers business, including but not limited to balance sheets, operating statements, and other fimmciai information, ns Ba~k may request from time to
time. Bank may at any time and without prior notice to Borrower and without the consunt of Borrower directly ~mtect account debtors and verify or conf'urn the status of the
Receivables. Borrower shall furnish Bank or cause to be furnished to Bank such financial information with respect to any Other Obligor, including but not limited to balance
sheets, operating statements, peisonal financial statements and other financial information, as Bank may requeat from time to time. Bank or any of its represuntetives may
fi.om time to time inspect, check, make copies of or extracts from the books, records and files of Borrower, and inspect any of the Collateral wherever located. Borrower shall
mak-. same ~vnilable ~t any iL,us f~ such pmpoees.
6.8 Insurance. Borrower hns and shall maintain insurance on all of its nsse~ and properties, including but not limited to the Collateral, at all times and again.st hazards, with
companies, in amounts and in funn aceeplable to Bank. Borrower shall submit to Bank od~inal insurance policies and receipts evidencing payment of the pi~minms due on
same. The policies shall name Bank ns sole loss payee and additional insured with ~e.~/~,~ot to the Collateral, and shall be endursed so ns to make them noncaneellable unless
flfirty (30) days prior notice of caneellefion is pray/dad to Bank.
6.9 Further Covena~s. Without the prior wrllten consent of Bank, Borrower shall not: (a) pledge or gsant any security interest in any Collateral to anyone except Bank, nor
permit any financing statement (except Bank's financing statemeut) to be on file in any public office with respect thereto; (b) permit or suffer any llcn, levy or other
cocumbranco to attach to any ofg~ Collateral or to any other aseets of Borrower, except for [ier~ and anenmbraoces in favor of Bank; (c) m__nke any agreement, compromise,
setilemani, bulk sel~, lease or tran~er of aes~ts o0~r ~ in th~ normal ~ ofbuslnnss; (d) a~ume, 8uarantee, endorse or othm~vlns be~ia liable in connection with the
obligations of any person, rum or corporation, except by endorsement of inatmmcots for deposit or collectlon or similar transactions in the ordinary course of business;
enter into any merger or consolidation, or sell or lesee subatautiaily all oflts assets; or (f) porebe~ or acquire tha obligations or stock of any persun, firm or corporation or
other ente~prlse whatseever, other than fl~ direct obligations of the United States or Bank.
7. DEFAULT. Any~fthefe~wingwi~lhaadefaultundertlgsNoteandSecudtyA~reement:(a)faihiret~payanyprincipa~expense~fee~char~eorintarestwhendue~or
failure to peal'Grin any other obligations belmmder', (b) a default by any Borrower upon any of the ex/sting or future obligations of any Borrower to Bank; (c) a default by any
Other Oblitor upon any of the ex/sting or future obligations of any Other Obligor to Bank; (d) a default by any Borrower under, or breach of uny provision or warranty of,
this Note and Security Agreement, any other a~roement, instrument or document in connection with any of the Obligations, or any other agseemenl, instrument, or document
betweco any Borrower or other Other Obligor and Bank, or any corporate affiliate of Bank, whether previously, simuliananusly, or hereafter entered into; (e) a material
adverse change in the £menclal condition of any 13or/~er or Other Chiller fi.om thai expressed in the £manciai statement mosi recently subnsilted to Benk prior to the date of
this Note and Security A~resment, ns detsnnined in good fa/th by Bank in its sole discretion; (f) institution of banlcruptcy, insolvency, reorganization or receivership
proceedings by or against any Borrower or Oth!r Obligor in any state or federal tour+4 (g) the appointment cfa receiver, assignee, costodlan, trustee or similar official under
any federal or state insolvency or creditors' rights law for any property of any Borrower or Other Obligor, th) lapse or termination of the interest of any Bce'ewer or Other
Obligor in any of the Collateral other than through sales of Inventory or other use of Cefiateral in the ordinary course of business; ti) failure of any Borrower or Other Obligor
to furnish lo Bank such collateral or additional collateral as Bank may in good faith request; (j) any warranty, represeniution, or statement to Bank by or on behalf of any
Borro~ver or Other Obligor proving to have bean incorrect in any material respect when made or furnished; (k) the occurrence of any event which is, or would be with the
passage of time or the g/vine ofnofica or befl~ a default under any indebtedness of any Borrower or Other Obligor to any pe~on other than Bank; ti) any material loss, theft
or substantial damage, not fully insured for the benefit of Bank, to any of the ~ns~ of any Borrower or Other Obligor, or the lrausfer, Ieee or encumbrance or other
disposition of ail or any material part of the assets of any Borrower or Other Obligor other than in the ordinary course ofbusinass of the Borrower or Other Obligor; (m) the
entry of any final judl~nent against any Borrower or Other Obligor for the payment of money in excess of $$,000.00; (n) the levy upon or attachment of any assets of any
Borrower or Other Obligor, (o) the recordation of any federal, ~.tete or local tax lien agaiust =ny Borrewer or Other Obligor, ~) a change of ownership or dissolution, merger,
consolidation, liquidation or reorganization of any Borrower or Other Obligor which is a corporation, partnership or other legal ent/t~, (q) the death of any Borrower or Other
Obligor who is a natural person; (r) failure of any Borrower or Other Oblisor to thnfish tu Bank such finunciai information as Bank may require from time to time; ts) the
datonninatiun in good faith by Bank, in its sole discretion, that the ability of any Borrower or Other Obligor to pay or perform any of their respective obligatinus to Bank is
impaired for any reason.
g. R~MEDIES.
I/. 1 Spec/ftc Rights and Remedie~. Upon a ddanlt, in addition to all other righ~ and n~raedles available to the holder of this Note and Security Agseement under any other
d~umcut or agreement between Borrower and Bank or under applicable law, the holder oflh/s Note and Secugty Agreement, in the holder's sole discretion and without
notice or demand, may: (a) raise the rate of interest accruing on the unpaid balance due under this Note and Security A~reemeut by two percent (20,4) percentage points aboYe
tile rate of interest otherwise applicable, independent of whether the holder of figs Note and Security Agreement elects to accelerate the unpaid principal balance as a result of
such default; and (b) declare the cotira unpaid principal bx/ance plus accrued interest and all other sums due hereunder immediately due and payable; (c) exercise any rights
of n secured creditor under the Uniform Comme/~inl Code, including the right to tske possession of the Collateral without the use ofjudiclal proc~s or hearing: of Imy kb~d
and tile right to require Borrower to assemble the Collateral at such place as Bank may specif~. Borrower a~'ees that a default uoder this Note and Security A~recment is a
default by Borrower under all other liabilities and ob]igatious of Borrower to the holder, and that the holder shall have the riEIat to declare immediately due and payable nil of
such other liabilities and obligations..Borroxver also hereby authorizes Bank, upon a default, but without prior notice to or d~nna~d upon Borrower and without prior
opportunity of Borrower to be heard, to institute an action for replevin, with or without bond as Bank may elect, to obtain possession of any of ibc Collateral. hi such~ action
for replevir~ a copy of this Note and Security Agreemant verified by affidavit of Bank or swam on behalf of Bank shall constitute evidence of Bank's right to possession of tho
Collateral.
g.2 Costs of Collection. Upon the occurrence of any default, Bank shall be entitled to recover from Borrower reasonable attorneys' fees ofany attorney who is not a salaried
employee of the holder of this Note and Security Agreement (to the extent not prohibited by law), plus court costs and other expenses which may be incurred by Bank in the
enforcement or attempted enforcement of its rights hereunder, whether against any third party, Borrower, or any Other Obligor. Expenses recoverable from Borrower shall (to
the extent not prohibited by law)include costs of cullection, including lien, jndgnlant, and ctber record searches, salaries, out-of-pocket travel, living expenses and thc hiring of
agents, consultants, appraisers, accountants, or otherwisa. All sums of money thus expended, and all other monies expended by Bank to protect its interest in the Collateral
(including insnrance, taxes or repairs) shall .be repayable by Borrower to Bank on demand, such repaymant to be .secured as provided in Paragraph 4 hereof.
8.3 Foreclosure. Upon the occurrence of any default, in addition to other remedies provided under the Uniform Commercial Code, Bank at any lima then or thereaRer, in its
discretion, may lawfully enter any of file Borrmver's premises or the premises where the Collateral is located, and with or without judicial process, lawfully remove, under
Section 9.503 oftbe Uniform Commercial Code, the Collateral or records thereof to such place as Bank may deem advisable, or require Borrower to assemble and make any
or all such Collateral available at such reasonable place as Bank may direct, and realize upon (by sale or in mW other manner) all or any part oftbe Collateral, in each case
without advertisement or notice to Borrower, except that, unless the Collateral is perishable or threatens to decline speedily in value, or is of a type customarily sold on a
recognized market, Bank shall give Borrower, and other parties entitled to notice, reasonable notice in wriling before the sale of the Collateral or ally part thereof at public
auction or private sale, in one or more sales, at such price or prices, and upon such terms either for cash or credit or future delivery as Bank may elect, and at any such public
sale Bank may bid for and become the purchaser of any or all of such Collateral; and/or Bank may foreclose its security interest in tbe Collateral in any way permitted by law.
In connection xvith any notices to be given pursuant to this paragraph, il is agreed in all instances that five (5) business days notice constitutes reasonabla notice. Any such
notice shall be deemed given wbeu delivered or deposited in tile U.S. mail with first class postage. The net proceeds of any such sale or sales and any amoonts received in
liquidation of the Collateral, less all costs and expenses incurred in connection therewith, including attorney's fees equal to fifteen percent (15%) of the unpaid balance of the
Obligations at the time of defanlt (to the extent not prohibited by law) and, at the option of Bmdc, less any prior lien clainx% shall be applied against the Obligations in the
order that Bank in its sole di.serction shall decide, and Borrower or other party entitled thereto shall be entitled to any surplus resulting therefrom. No action taken by Bank
pursuant hereto shall affect Borrower's continuing liability to Bank for any deficiency remaining after any foreclosure. The purchaser at any such sale shall thereafter hold the
Collateral absolutely fre~ from any claim or right of whatscever kind including any equity of redemption of Borrower, and such demand, nntice or right in equity are hereby
exqgressly waived and released by Borrower.
8.4 Alternative Remedies. Bank may exercise its rights and remedies hereunder either alternntively or concurrently with its fights under any and all otller agreements between
Bank and Borrower and shall have tha full right to realize upon all available Collateral, collecting on the same or titillating proceedings in connection therewith, until Bank
receives paymant in thll of all amounts owing to Bank under any of its agrecmants with Borrower, including principal, interact, costs and expenses, and costs of enfomement
or attempted enforcement of this or any other agreemant among or between Bank and Borrower or ally Other Obligor. Bank shall be under no obligation to pursue Bank's
rights against any Other Obligor or any of tile Collateral of any Other Obligor securing any of the Obligations before pursuing Bank's rights agai~,zt Borrower or the
Collateral.
9. RIGHT OF BANK TO ACT WITH RESPECT TO OTHER OBLIGORS AND COLLATERAL; WAIVERS BY BORROWER. Borrower hereby assents to any and
all terms and agreements between Bank and any Other Obligor, and all ameodments and modifications thereof, whether presently existing or hereafter made and whether oral
or in writing. Bank may, without compromising, impairing, diminishing, or in any way releasing Borrower from tile Obligations and without notifying or obtaining the prior
approval of Borrower, at any time or from time to time: (a) waive or excuse any default by any Other Obligor, or delay in the exercise by Bank of any or all of Balzk's rights
or remedies with respect to such default; (b) gram extansious of time for payment or performance by any Other Obligor, (c) reles.~, substitule, exchange, surrender, or add
collateral of any Other Obligor, or waive, release, or subordinate, in whole or ill pall, any lien or security interest held by Bank on any real or personal property securing
payraant or performance, in whole or in part, of the obligations of any Other Obligor, (d) release any Other Obligor, (e) apply payments made by any Other Obligor, to any
sulns owed by any Other Obligor to Bank, in any order or manner, or to any specific account or accounts, as Bank may elect; and (f) modify, change, renew, extend, or
amend, in any respect, Bank's agreement with any Other Obligor, or any document, instrument, or writing, enlbodying, or reflecting file same. Borrower waives: (a) any and
all notices whatsoever with respect to this Note and Security Agreement or with respect to any of the obligations of any Other Obligor to Bank, including but not limited to
notice of.' (i) Bal~k's acceptance hereof or Bank's intention to act, or Bank's action, in reliance beton; (ii) the presant existence or future incurring of any of the obligations of
ally Other Obligor to Bank or any ternls or amounts tilereof er any change therein; (iii) any default by any Other Obligor;, and (iv) the obtaining or release of any guaranty or
surety agreement, pledge, assignment, or other security for any of tile obligations of any Other Obligor to Bank; (b) presentment and demand for payment of ally sum due
from any Other Obligor and protest of noppayment; and (c) demand for performance of any Other Obligor.
10. WAIVERS; EXTENSIONS OF MATURITY. Borrower, and all parties tu this Note and Security Agreemant, whether maker, eodorser, or guarantor, waive
presentment, demand, notice of dishonor and protest, and agree thnt the maturity of this Note and Security ^greement, or any payment due hereunder, may be extended at any
time or from time to time without releasing, discharging, or affecting the liability of such party.
11. JOINT AND SEVER~X.L LIABILITY. If more than one person or entity is executing this Note and Security Agreement az a Borrower, all liabilities under this Note
and Security Agreement shall be joiot and several with respect to each of such persons or entities.
12. BINDINO NATURE; INVALIDITY OF ANY PART. This Note and Security Agreement shall inure to tile benefit of and be enforceable by Bank and Bank's
successors and assigns and any other person to whom Bank may grant an interest in Borrower's obligations to Bank, and shall be binding and enforceable against Borrower
and Borrower's personal representatives, successors and assigas. If any provision or part of any provision of this Note and Security Agreement shall for ally reasou be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Note and Security Agreement, and
this Note mid Security .Agreement shall be construed as if such invalid, illegal or unenforceable provision or part thereof had never been contained herein, but only to file
extent of its invalidity, illegality or unenforceabifity.
13. MAXIMUM RATE OF INTEREST; COMMERCIAL LOAN. Notwithstanding any provision of this Note and Security Agreement to the contrary, Borrower shall
not be obligated tu pay interest hereunder in excess of the maximum rate of interest permitted by the laws of any state determined to govern this Note and Security ~X. greement
or the laws of the United States applicable to loans in such state. If any provision of this Note and Security Agreement shall ever be construed to require the payment of any
amount of interest in excess of that permitted by applicable law, than the interest to be paid hereonder shall be held subject to reduction to file amount allowed under
applicable law, and any sums paid in excess of the interest rate allowed by law shall be applied in reduction of the principal balance outstanding under this Note and Security
Agreement. Borrower acknowledges that it has beau contemplated at all times by Borrower that the laws of tile Common,,vealth of Pennsylvania will govern the maximum
rate of interest that it is permissible for tile holder of this Nnte and Security ,Agreement to charga Borrower under this Note and Security Agreement. Borrower warrants that
this Note and Security Agrcemant evidences a loan made solely to acquire an interest in or carry on a business or commercial enteq~risa.
14. CHOICE OF LAW; CONSENT OF VENUE AND J't_!I,'.!~;DICTION. This Note and Security Agreement shall be governed, construed and interpreted in accordance
with tile laws of the Conunonwealth of Pennsylvania even iflhe Pen~ I.,.ania rules governing conflicts of laws would otherwise require that the laws of another jurisdiction
govern this Note and S$curity Agreement. Borrower cotlseots to the jurisdiction and vanue of tbe courts of any coontY or city in the Commonwealth of Pemlsylvania °r t° the
jurisdiction and vanue of tile United States District Court for file Middle District of Pc~msylvania in any action or jndicial proceeding brought to enforce, construe or interpret
· this Note and Security Agreement. Any-action brought by Borrower against Bank wbich is based, directly or indirectly, or.in whole ~ in part, upon this Note and Security
Agreement or any matter related to this Note and Security Agreement shall be brought only in the courts of the Conunonwenlth of Pennsylvania.
15. UNCONDITIONAL OBLIGATIONS. Borrower's obligations under this Note and Security Agreement shall be the absolute and unconditional duty and obligation of
Borrower and shall be independent of any rights of set-off' recoupment or counterclaim which Borrower might otherwise have against the holder of this Note and Security
Agreement and Borrower shall pay absolutely the payments of principsi, interest, charges, fees and expenses required hereunder, free of any deductions and without
abatement, diminution or set-off.
16. ADDRESSES. Set forth below are the addresses of:
Address of Chief Executive Ollice 456 Mount Rock Road
Address of Location of Books and Records
Relating to Collateral
Other Address(es) of Location(s) of Collateral
(if any)
Newvffie, PA 17241
Telephone No. (717) 776-7177
456 Mount Rock Road
Newx'ille, PA 17241
Telenhone No. (71T~ 776-7177
(Telephone)
(Telephone)
17. NVAIVER OF JURY TRIAL. Borrower (by execution of this Note and Security Agreement) and Bank (by acceptance of this Note and Security
Agreement) agree that any suit, action or proceeding, whether claim or counterclaim, brought or instituted by Borrower or Bank or with respect to this Note
and Security Agreement or which in any way relates, directly or indirectly, to the obligations of Borrower to Bank under this Note and Security Agreement or
the dealings of the parties with respect thereto, shall be tried only by a court and not by a jury. BORROWER AND BANK HEREBY EXPRESSLY WAIVE
ANY RIGIIT TO A TRIAL BY JURY IN ANY SUCII SUIT, ACTION, OR PROCEEDING. Borrower and Bank acknowledge and agree that this provision is a
specific and material aspect of the agreement between the parties and that Bank would not enter intu the transaction with Borrower if this provision were not a
part of their agreement.
IN WITNESS WHEREOF, and intendiag to be legally boond hereby, the undersigned executes this Note and Security Agreement under seal, as Borro~ver, as ofthe date first
written above.
WITNESS:
(Signature)0
(Print
BOgtKOWER;
(SEAL)
Samuel A. Calaman, Individually, and Trading as Calaman's Lawn
Service, a Pennsylvania Sole Proprietorship
(Print Name)
Address: 456 Mount Rock Road
Newvtlle, Pennsylvania 17241
Tdephone Number: (717) 776-2326
Social Security No: 17-3547713
OFFICE OF THE PROTHONOTARY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
TO:
Samuel A. Calaman, Individually
and t/a Calaman's Law Service
456 Mt. Rock Road
Newville, PA 17241
ALLFIRST BANK,
Plaintiff
VS.
SAMUEL A. CALAMAN, Individually
and t/a CALAMAN'S LAWN SERVICE,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
.'
: No. -
:
:
:
NOTICE
Pursuant to Pa.R.C.P. Rule 236 please be advised that judgment by confession in the
above proceeding was entered against you on ~1~.~~, 2002, in the amount of:
Principal Sum Due -
Interest to 4/2/02 -
Late Fees -
Attorney's Fees (15% of unpaid principal) -
Total -
$ 9,941.77
123.86
11.37
1,491.27
$11,568.27
Together with interest which continues to accrue at the contract rate ($2.19 per diem), together
with all charges, fees, and expenses plus court costs and reasonable attorneys' fees as allowed
by the Warrant of Attorney for confession of judgment contained in the Note. Copies of all
documents filed are attached hereto.
Prothonotary
ALLFIRST BANK,
Plaintiff
VS.
SAMUEL A. CALAMAN, Individually
and t/a CALAMAN'S LAWN SERVICE,
Defendant
: 1N THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
.'
: No.
:
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY OF SAID COUNTY:
Sir, please emer the appearance of Marc A. Hess, of the law firm of Henry & Beaver
LLP, whose address is 937 Willow Street, P.O. Box 1140, Lebanon, Pennsylvania 17042-1140
as attorney for Allfirst Bank, the Plaintiff in the above-captioned case.
/MAR~
I.D. #55774
Attorney for Plaintiff
CAPOZZI & ASSOCIATES, P.C.
By: Louis J. Capozzi, Esquire
Attorney I.D. No. 46559
Donald R. Reavey, Esquire
Attorney I.D. No. 82498
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
Attorneys for Defendants,
Samuel A. Caiman
t/a Calaman's Lawn Service
BEFORE THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
ALLFIRST BANK,
Plaintiff
NO. 02-1630 - CIVIL TERM
SAMUEL A. CALAMAN,
Individually, and t/a CALAMAN'S
LAWN SERVICE
Defendants
CIVIL ACTION - LAW
THE PETITION OF THE DEFENDANTS, SAMUEL A. CALAMAN,
INDIVIDUALLY, AND T/A CALAMAN'S LAWN SERVICE, TO STRIKE OFF
OR OPEN CONFESSED JUDGMENT
Defendant, Samuel A. Calaman, individually, and Samuel A. Calaman t/a
Calaman's Lawn Service ("Calamans"), by his undersigned counsel, respectfully
petitions this Court to strike off or open the confessed judgment, and in support states the
following:
I. Petition to Strike Off
1. Plaintiff, AllFirst Bank, commenced this action on April 3, 2002, by
complaint to confess judgment against defendant upon an alleged commercial installment
contract ("contract") containing a warrant of attorney. A true and correct copy of the
complaint is attached as Exhibit "A."
2. The Prothonotary pursuant to Pa. R.C.P. No. 2956 entered judgment by
confession against Defendants on April 3, 2002, the same date the Complaint was filed.
A true and correct copy of the Confession of Judgment is attached to the face of the
Complaint as Exhibit "A."
3. The Defendant is a sole proprietor of a lawn maintenance company and is
not a sophisticated borrower. The Defendant was not represented by counsel when he
entered into the agreement attached to the Plaintiff's Complaint.
4. At the time he executed the contract, defendant did not know that it
contained a warrant of attorney and plaintiffs representatives did not explain the warrant
of attorney to defendant.
5. Defendant did not voluntarily, intelligently and knowingly waive his due
process rights when he executed the contract.
6. The judgment by confession entered in this action on April 3, 2002 is
constitutionally invalid under the doctrine of Swarb v. Lenox, 405 U.S. 191 (1972), and
D.H Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775 (1972) and their progeny.
7. This petition has been filed promptly after notice of the entry of judgment
by confession.
8. Both Samuel Calaman and Samuel Calaman t/a Calaman's Lawn Service
are individual consumers as defined in Pa.R.C.P. 2950 et seq.
9. The Confession of Judgment purports to enter judgment against two
Defendants, Samuel A. Calaman, individually, and Samuel Calaman t/a Calaman's Lawn
Service. Entry of Confession of Judgment is against individual consumers is prohibited
by Pa.R.C.P. 2950 et seq. and the supporting case law.
WItEREFORE, the Defendants, Samuel A. Calaman, individually, and Samuel
A. Calaman t/a Calaman's Lawn Service respectfully request that this Court strike offthe
Confessiion of Judgment of April 3, 2002 in the above-captioned matter, request a
prompt hearing on this issue, and enter a rule to show cause against the Plaintiff in the
proposed form setting a date for a reply and a hearing or in the alternative enter an Order
in the proposed form striking the April 3, 2002 Confession of Judgment and staying any
execution on with reference to this matter until the issues are resolved.
II. Petition to Open
10. The terms of the warrant of attorney require the occurrence of a default in the
payments before judgment may be entered, and the occurrence of such default cannot be
ascertained from the documents and the face of the complaint itself.
11. The computation of the amount due requires consideration of the alleged date
of default, which is a matter outside the contract.
12. Accordingly, the entry of judgment upon praecipe pursuant to Pa. R.C.P. No.
2956 was improper.
WHEREFORE, the Defendants, Samuel A. Calaman, individually, and Samuel
A. Calaman t/a Calaman's Lawn Service respectfully request that this Court open the
Confession of Judgment of April 3, 2002 in the above-captioned matter, request a prompt
hearing on this issue, and enter a rule to show cause against the Plalntiffin the proposed
form setting a date for a reply and a hearing or in the alternative enter an Order in the
proposed form striking the April 3, 2002 Confession of Judgment and staying any
execution with reference to this matter until the issues are resolved.
Respectfully submitted,
CAPOZZI & ASSOCIATES, P.C.
Louis J. Capozzi, Jr., Esquire
Attorney I.D. No. 46559
Donald R. Reavey, Esquire
Attorney ID No. 82498
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
CAPOZZl & ASSOCIATES, P.C.
By: Louis J. Capozzi, Esquire
Attorney i.D. No. 46559
Donald R. Reavey, Esquire
Attorney I.D. No. 82498
2933 North Front Street
Harrisburg, PA 17110
(717) 233-410t
Attorneys for Defendants,
Samuel A. Calaman
'da Calaman's Lawn Service
ALLFIRST BANK,
BEFORE THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
..
V. "
..
SAMUELA. CALAMAN, Individually, :
and 'da CALAMAN'S LAWN SERVICE :
..
Defendants :
NO. 02-1630 - CIVIL TERM
CIVIL ACTION - LAW
VERIFICATION
I, Donald R. Reavey, hereby verify that I am an attorney for the Claimant. I have
sufficient knowledge or information based upon investigation into this matter by my
client, to make this verification. I hereby verify that the statements in the foregoing
Petition of the Defendants, Samuel A. Calaman, Individually and t/a Calaman's Lawn
Service, to Strike Off or Open Confessed Judgment are tree and correct to the best of my
knowledge, information, and belief. I understand that false statements contained herein
are made subject to the penalties of 18 Pa. C.S.A. §4904 relative to unworn falsification
to authorities.
Date:
CAPOZZI & ASSOCIATES, P.C.
Donald R. Reavey, Esquire
Attorney I.D. No. 82498
2933 North Front Street
Harrisburg, Pennsylvania 17110
Telephone: (717) 233-4101
(Attorneys for Claimant)
CAPOZZl & ASSOCIATES, P.C.
By: Louis J. Capozzi, Esquire
Attorney I.D. No. 46559
Donald R. Reavey, Esquire
Attorney I.D. No. 82498
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
Attorneys for Defendants,
Samuel A. Calaman
t/a Calaman's Lawn Service
BEFORE THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
ALLFIRST BANK,
Plaintiff :
SAMUEL A. CALAMAN, Individually, :
and t/a CALAMAN'S LAWN SERVICE :
:
Defendants :
NO. 02-1630 - CIVIL TERM
CIVIL ACTION - LAW
CERTIFICATE OF SERVICE
I, Donald R. Reavey, Esquire, hereby certify that I did on this ~ 6 -v ~ day of
April, 2002, serve a copy of the Petition of the Defendants, Samuel A. Caiman,
Individually and t/a Calaman's Lawn Service, to Strike Off or Open Confessed Judgment
upon the persons and in the manner indicated below:
Service by First - Class Mail
Addressed as Follows:
Date:
Marc A. Hess, Esquire
P.O. Box 1140
937 Willow Street
Lebanon, PA 17042-1140
Donald R. Reavey, Esquire
Attorney I.D. No. 82498
2933 North Front Street
Harrisburg, Pennsylvania 17110
Telephone: (717) 233-4101
Name of Client, d/b/a Client
ALLFIRST BANK,
Plaintiff
VS.
SAMUEL A. CALAMAN, Individually
and Ua CALAMAN'S LAWN SERVICE,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 02-1630 Civil Term
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA:
: SS.
COUNTY OF LEBANON :
I, Lisa I. Fox, of the law firm of Henry & Beaver LLP, depose and state that I forwarded
a certified true and correct copy of the attached Notice Under Rule 2958.1 of Judgment and
Execution Thereon - Notice of Defendant's Rights by First Class United States Mail, Certified,
Return Receipt Requested, on April 16, 2002 to Defendant, Samuel A. Calaman, individually
and t/a Calaman's Lawn Service, at 456 Mt. Rock Road, Newville, Pennsylvania 17241. Said
Notice was received by Defendant on May 6, 2002.
Attached hereto and made a part hereof is the United States Postal Service Domestic
Return Receipt and Receipt for Certified Mail.
Sworn and subscribed to before me this :
~ davy of ~0.~,lf ,2002. :
~) Notary Pul~c
Elizabeth O. Behney, Notary Public [
Lebanon, Lebanon County I
My Commissio~ Expires Nov. 29, 2004 ]
ALLFIRST BANK,
Plaintiff
VS.
SAMUEL A. CALAMAN, Individually
and t/a CALAMAN'S LAWN SERVICE,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
.
: No. 0:g-16,30 (~','¢;l'--[~rm
'.
:
..
NOTICE UNDER RULE 2958.1 OF
JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
To~
Samuel A. Calaman, Individually
and t/a Calaman's Law Service
456 Mt. Rock Road
Newville, PA 17241
A judgment in the amount off
Principal Sum Due -
Interest to 4/2/02 -
Late Fees -
Attorney's Fees (15% of unpaid principal) -
Total -
$ 9,941.77
123.86
11.37
1,491.27
$11,568.27
with all charges, fees, and expenses plus court costs and reasonable attorneys' fees as allowed
by the Warrant of Attorney for confession of judgment contained in the Note, has been entered
Together with interest which continues to accrue at the contract rate ($2.19 per diem), together
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 GET LEGAL HELP:
Lawyer Referral Services
2 Liberty Avenue
Carlisle, Pennsylvania 17013
(717) 249-3166 or (800) 990-9108
I.D. #55774
937 Willow Street
P.O. Box 1140
Lebanon, PA 17042-1140
(717) 274-3644
Attorney for Plaintiff
AMERICANS WITH DISABILITIES ACT OF 1990
The Court of Common Pleas of Cumberland County is required by law to comply with the
Americans with Disabilities Act of 1990. For infmmation about accessible facilities and
reasonable accommodations available to disabled individuals having business before the Court,
please contact the Court Administrator's Office at (717) 240-6200. All arrangements must be
made at least 72 hours prior to any hearing or business before the Court. You must attend the
scheduled conference or heating.
- 3 -
, · i
7000 1530 0003 9982 0458
~. ®~
· Complete items 1,2, and 3. Also complete
item 4 if Restricted Delivery is desired.
· print your name and address on the reverse
that we can return the card to you.
so -. --~ *~ the back of the mailpiece,
· Attach tn s ca[u ~u
or on the front if space permits.
1. Article Addressed to:
Samuel h~ ~alaman, individually
and t/a Calaman's Lawn Service
456 Mt. Ro~-k Road
Newvill~ PA 17241
Article Number
(Transfer from service lube/)
~ 3811, March 2001
Date of Deliv~y
differentfforn item 17 [] Yes
r deliver/address below: [] No
Service Type
~{~ Certified Mail [] Registered
[] insured Mail [] C.O.D.
4. Restricted Delivery? (Extra Fee)
7000 1530 0003 9982 0458
Domestic Return Receipt
[] Express Mail
[] Return Receipt for Merchandise
OYes
102595-01 -M-1424
JPostage& Fees Paid[
/usPs
· Sender: Please print¥ourname, address, and ZIP+4inthis box
~C A. HESS, ESQUIRE
HENRY & BEAVER LLP
937 WILLOW STREET
P.O. BOX 1140
LEBANON, PA 17042-1140
ALLFIRST BANK,
Plaintiff
SAMUEL A. CALAMAN,
Individually, and t/a
CALAMAN'S LAWN
SERVICE,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-1630 CIVIL TERM
ORDER OF COURT
AND NOW, this 28th day of May, 2002, upon consideration of the Petition of the
Defendants, Samuel A. Calaman, Individually, and t/a Calaman's Law Service, To Strike
Off or Open Confessed Judgment, it is ordered that:
1. A Rule is issued upon Plaintiff to show cause why Defendants are not entitled
to the relief requested;
2. Plaintiff shall file an answer to the petition within 21 days of the date of this
order;
3. The petition shall be decided under Pa. R.C.P. 206.7;
4. Depositions shall be completed within 49 days of the date of this order;
5. Argument shall be held on Wednesday, August 21, 2002, at 1:30 p.m., in
Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania.
6. Briefs shall be submitted at least seven days prior to argument.
BY THE COURT,
J./W~ esley Oler,'J .,~r) J.
/Marc A. Hess, Esq.
P.O. Box 1140
937 Willow Street
Lebanon, PA 17042-1140
Attorney for Plaintiff 7
~Douis J. Capozzi, Jr., Esq.
onald R. Reavey, Esq.
2933 North Front Street
Harrisburg, PA 17110
Attorneys for Defendants
ALLFIRST BANK,
Plaintiff
VS.
SAMUEL A. CALAMAN, Individually
and t/a CALAMAN'S LAWN SERVICE,
Defendant
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
:
: No. 02-1630 Civil Term
.'
:
RESPONSE AND ANSWER OF ALLFIRST BA~K TO PETITION OF
DEFENDANTS TO STRIKE OFF OR OPEN CONFESSED JUDGMENT
COMES NOW, Plaintiff, Allfirst Bank, by and through its undersigned attomeys, and
responds to the Petition of Defendants to strike off or open coafessed judgment as follows:
I. Answer to Petition to Strike Off
1. Admitted in part, denied in part. It is admitted that on April 3, 2002, Plaintiff filed a
Complaint for Confession of Judgment together with ConfessiOn of Judgment against the
Defendants, individually and jointly, pursuant to a warrant of attorney contained in a
Commercial Promissory Note and Security Agreement (the "Note"). The averment that
Plaintiff relied on a "Commercial Installment Contract" is den ed to the extent that Defendant is
alleging that Plaintiff relied on anything other than the Note. ?he remaining averment of
Paragraph 1 stating that a true and correct copy of the Complaint is attached as Exhibit "A" is
denied as the copies of Defendant's Petition served upon Plaintiff contained no exhibits.
2. Admitted.
3. Plaintiff lacks sufficient information to form a belief as to truth of the averments of
Paragraph 3 and therefore, the same are denied. By way of fuflJaer answer, at the same time he
signed the Note, Defendant individually and t/a Calaman's Lawn Service signed an Affidavit of
Business Purpose and Explanation of Waiver of Rights regarding confession of judgment
acknowledging that Defendant had been advised that the Note contained a warrant of attorney
for confession of judgment and acknowledging that Defendan~ specifically understood the
potential implications of signing the Note. A copy of said Affidavit is attached hereto and
incorporated herein as Exhibit "A".
4. Denied. Plaintiff incorporates herein at length its answer to Paragraph 3
hereinabove.
5. Denied. Plaintiff incorporates herein at length its answer to Paragraph 3
hereinabove.
6. Denied as a conclusion of law to which no response is deemed required. By way of
further answer, Plaintiff incorporates herein its answer to Paragraph 3 above as if set forth at
length and avers that as a matter of fact, Defendant signed the Note with the warrant of attorney
for confession of judgment knowingly, voluntarily and fully Understanding the implications of
the same.
7. Denied. The averment of Paragraph 7 are denied ag a conclusion of law to which no
response is deemed required.
2
8. Denied as a conclusion of law to which no response is deemed required. By way of
further answer, both Samuel Calaman individually and t/a Calaman's Lawn Service signed the
Note with Plaintiff as business entities and intending to enter into a business purpose
transaction as is evidenced as Exhibit "A" attached hereto.
9. Admitted in part, denied in part. It is admitted thatientry of confession judgment
against an individual consumer is prohibited by Pa.R.C.P. 2959, et seq. It is denied that
Plaintiff is prohibited from entering judgment against Samuel A' calaman individually with
regard to this transaction as Pa.R.C.P. 2950, et seq. only prohibits entry of confession against
an individual consumer in connection with a consumer credit transaction. The Note upon
which judgment was confessed and entered was specifically for business purpose and not a
consumer credit transaction as is evidenced by Exhibit "A" attached hereto and incorporated
herein.
WHEREFORE, upon failure to show a defect upon the face of the confessed judgment,
Plaintiff respectfully requests the Court deny and dismiss witll prejudice Defendant's Petition
to Strike.
II. Answer to Petition to Open
10. Denied. The terms of the warrant of the attorney r~quire "any default" before
judgment may be entered and the occurrence of such default can be ascertained from the
Complaint itself. Specifically, at paragraph 6 of the Complairlt for Confession of Judgment,
Plaintiff sets forth a specific averment of default.
11. Denied. The computation of the amount due simpl~ sets forth the actual amount
due, including principal, interest, late fees and attorney's fees as of the date the Complaint was
prepared and is true and accurate in ail respects as is set forth in the Affidavit of PlaintiWs
representative accompanying the Complaint.
12. The averment of Paragraph 12 is denied as a conclusion of law to which no response
is required. By way of further answer, and in fact, the confessed judgment was proper in ail
respects.
WHEREFORE, upon Defendant's failure to raise a meritorious defense in its Petition
to Open, Plaintiff requests the Court dismiss the Petition to OPen with prejudice.
HEN~
BY,Marcia,S /~-~ ~''
I.D. #55774
937 Willow Street
P.O. Box 1140
Lebanon. PA 17042-1140
(717) 274-3644
4
VERIFICATION
I verify that the statements made in this Response and Answer of Allfirst Bank to
Petition of Defendants to Strike Off or Open Confessed Judgrflent are tree and correct. I
understand that false statements herein are made subject to the!penalties of 18 Pa.C.S. Section
4904 relating to unswom falsification to authorities.
ALLFIRST BAN K
Vivian P. Me renbloom
Vice Presideflt
AFFIDAVIT OF BUSINESS PURPOSE AND
EXPLANATION AND WAIVER OF RIGHTS
REGARDING CONFESSION OF JUDGMENT
On the date hereof, lite undersigned (the "Obligor", whether one or more titan one) is signing and delivering to
ALLFIRST BANK (the "Bank") a Promissory Note for the Obligations of Samuel A. Calaman, individually, and Trading as
Calaman's Lawn Service, a Sole Proprietorship, of the Commonwealth of Pennsylvania (as the same may be renewed, modified,
amended, extended, restated or replaced, whether one or more, the "Obligation").
The Obligor has been advised by the Bank (and by tile Obligor's legal counsel/if applicable) that the Obligation contains a
clause that provides that the Bank may confess judgment against the Obligor. The Obligor has read the Obligation and clearly and
specifically understands that by signing the Obligation which contains such confession of judgment clause:
(a) The Obligor is authorizing rite Bank to enter a judgment against the Obligor and in favor of the Bank, which will
give the Bank a lien upon any real estate which the Obligor may own in any county where the judgment is entered;
(b) The Obligor is giving up an important right to any notice or opportuniIy for a hearing before the entry of this
judgment on the records of the Court;
(c) The Obligor is agreeing that the Bank may enter tiffs judgment and understands lhat the Obligor will be unable
to contest the validity of the judgment, should the Bank enter it, unless the Obligor successfully challenges entry of the judgment
on procedural grounds through a petition to open or strike the judgment, which will require the Obligor to retain counsel at
Obligor's expense;
(d) The Obligor is giving up an important right to any notice or opportunity for a hearing before the Bank may
request and use the power of the state government to deprive the Obligor of its propertylpursuant to the judgment by Seizing or
having the Sheriff or other official seize the Obligor's bank accounts, inventory, equipment, furnishings, or any other personal
property that the Obligor may own, to satisfy the Obligation;
(e) The Obligor may be immediately deprived of the use of any property that is seized by the Bank pursuant to the
judgment without notice or a bearing, and the procedural rules of Pennsylvania's court system do not guarantee that the Obligor
will receive a prompt hearing after the Obligor's property is seized; and
(f) ff the Obligation is the Bank's printed form of Promissory Note or Guaranty, the Obligor is agreeing that the
Bank may enter judgment whether or not there is a default under the Obligations.
The Obligor knows and understands that it is the confession of judgment clause in the Obligation which gives the Bank
the rights described in subparagraphs (a) through (0 above.
Fully and completely understanding the rights which are being given up if the Obligor signs the Obligation containing the
confession of judgment, the Obligor nevertheless freely, knowingly and voluntarily waives said rights and chooses to sign the
Obligation.
The undersigned is authorized to make the following affidavit and docs so under penalty of perjury: The Obligor is either
(a) an individual engaged in a business enterprise, whoSe annual income exceeds $10,000i (b) a partner in a business partnership;
(c) a member in a limited liability company; (d) exercises actual control over the managerial decisions as an officer, director,
stockholder, trustee, by contract, or otherwise of the business enterprise in which the loa~ proceeds will be utilized; or (e) is the
spouse of an individual in one of the previously described categories whose execution of the Obligor is legally required, and
Obligor acknowledges that the proceeds of the Obligation are to be used for business purpoSes. The original principal amount of
the Obligation exceeds $10,000.
,r.cn= t~o, ,t-,_t'~o uae o~arn T~T~ a~'~'W~aVIT AND I~xrpI.ANATION ANDiWAIVER PRIOR TO SIGNING THE
CERTIFICATE OF SERVICE
I, Lisa I. Fox, of the firm of Henry and Beaver, LLP, dO hereby certify that I have
forwarded a certified tree and correct copy of the within Response and Answer of Allfirst Bank
to Petition of Defendants to Strike Off or Open Confessed Judgment by regular United States
mail, postage prepaid, on\Jrrc, v t44 / ¢ ,2002, to the following:
/I
Donald R. Reavy, Esquire 'J
2933 North Front Street
Harrisburg, PA 17110
Attorney for Defendant
CAPOZZI & ASSOCIATES, P.C.
By: Louis J. Capozzi, Esquire
Attorney I.D. No. 46559
Donald R. Reavey, Esquire
Attorney I.D. No. 82498
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
Attorneys for Defendants,
Samuel A. Calaman
t/a Calaman's Lawn Service
BEFORE THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
ALLFIRST BANK,
Plaintiff
SAMUEL A. CALAMAN,
Individually, and t/a CALAMAN'S
LAWN SERVICE
NO. 02-1630 - CIVIL TERM
CIVIL ACTION - LAW
Defendants :
- STI~IKE OFF O~ ur~
TO THE PROTHONOTARY:
Kindly withdraw the Petition of the Defendants, Samuai A. Calaman,
Individually, and T/A Calaman's Lawn Sexvice to Strike Offor Open Confessed
Judgment filed with this Honorable Court on April 29, 2002.
Respectfully submitted,
CAPOZZI & ASSOCIATES, P.C.
Date:
Louis J. Capozzi, Jr., Esquire
Attorney I.D. No. 46559
Donald R. Reavey, Esquire
Attorney ID No. 82498
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
CAPOZZI & ASSOCIATES, P.C.
By: Louis J. Capozzi, Esquire
Attorney I.D. No. 46559
Donald R. Reavey, Esquire
Attorney I.D. No. 82498
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
Attorneys for Defendants,
Samuel A. Calaman
t/a Calaman's Lawn Service
BEFORE THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
ALLFIRST BANK,
Plaintiff
SAMUEL A. CALAMAN,
individually, and t/a CALAMAN'S
LAWN SERVICE
NO. 02-1630 - CIVIL TERM
CIVIL ACTION - LAW
Defendants :
CERTIFICATE OF SERVICE. ~' ~
I, Donald R: Reavey, Esquire, hereby certify that I did on this. day of
August, 2002, serve a copy of the Praecipe to Withdraw the Petition of the Defendants,
Samuel A. Calaman, Individually and t/a Calaman's Lawn Service, to Strike Off or Open
Confessed Judgment upon the persons and in the manner indicated below:
Service by First - Class Mail
Addressed as Follows:
Marc A. Hess, Esquire
P.O. Box 1140
937 Willow Street
Lebanon, PA 17042-1140
Date:
Donald R. Reavey, Esquire
Attorney I.D. No. 82498
2933 North Front Street
Harrisburg, Pennsylvania ltl l0
Telephone: (717) 233-4101
ALLFIRST BANK,
Plaintiff
Vo
SAMUEL A. CALAMAN,
Individually, and t/a
CALAMAN'S LAWN
SERVICE,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 02-1630 CIVIL TERM
IN RE: PETITION OF DEFENDANTS, SAMUEL A. CALAMAN, INDIVIDUALLY,
AND T/A CALAMAN'S LAW SERVICEs TO STRIKE OFF OR OPEN
CONFESSED JUDGMENT
ORDER OF COURT
AND NOW, this 8th day of August, 2002, upon consideration of the attached letter
from Donald R. Reavey, Esq., attorney for Defendants, the oral argument scheduled for
August 21, 2002, is cancelled.
,,Marc A. Hess, Esq.
P.O. Box 1140
937 Willow Street
Lebanon, PA 17042-1140
Attorney for Plaintiff
BY THE COURT,
J~W-e~ley Ole~ ' '~J.
"Donald R. Reavey, Esq.
2933 North Front Street
Harrisburg, PA 17110
Attomey for Defendants
:rc
Louis~. Capozz~, Jr., Esquire
Daniel K. Nafirboff, Esquire
Jonathan C. James, NHA, Esquire
Y, lichael A. Hynum, NHA, Esquire
Danielle Wesley, Esquire
Gwendolyn S. t-Iailey, Esquire
Robert P. Grubb, Esquire
Kurt E. Clawson, Esquire
Donald R. Reavey, Esquire
Bruce G. Baron, Research Coordinator
,M'ny A. Keim, Paxalegal
Tanya L. Zerbe, Paralegal
Attorneys at Law
2933 North Front Street
Harrisburg, PA 17110
1853 William Penn Way
P.O. Box 10368
Lancaster, PA 17605 -0368
Telephone: (717) 233-4101
Toll Free: (800) 352-6861
Fax: (717) 233-4103
www. capozziassociatcs.com
Of Counsel:
Steven T. Hanford. Esquire
August 6, 2002
Richard J. Pierce, Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
Re: Allfirst Bank v. Samuel A. Calaman, Individually and t/a Calaman's Lawn
Service
Docket Nos: 02-1633, 02-1630
Praecipe to Withdraw Petitions of Defendants to Strike Off or Open
Confessed Judgments
Our Matter No.: 199-02
Dear Mr. Pierce:
I am writing to inform you that the Petition of Defendants to Strike Offor Open
Confessed Judgments have been withdrawn by Praecipes dated August 6, 2002 in the
above referenced matter. Therefore, the oral argument scheduled for Wednesday, August
21, 2002 is no longer necessary. This argument was scheduled by Order of the Honorable
J. Wesley Oler,'Jr., dated May 28, 2002. A true and correct copy of the Praeeipe to
Withdraw is enclosed for your convenience.
Thank you for your time and attention. Should you have any questions or
concerns, please do not hesitate to contact me.
Very truly yours,
Donald R. Reavey, Esquire
cc: The Honorable J. Wesley Oler, Jr.,
Marc Hess, Esquire