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HomeMy WebLinkAbout02-1633ALLFIRST 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. C>.3..- : : : CONFESSION OF JUDGMENT Pursuant to the authority contained in the Warrant of Attomey, 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 - Attorney's Fees (15% of unpaid principal) - Total - $ 21,531.18 463.56 3,229.68 $ 25,224.42 Together with interest which continues to accrue at the contract rate ($4.77 per diem), together with all charges, fees, and expenses plus court costs and reasonable attorneys' fees as allowed Prothonotary by the Warrant of Attomey for confession of judgment contained in the Note· HEN~ ~ By: [ '7~---u MARC A. HES! I.D. #55774 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (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,a- COMPLAINT CONFESSION OF JUDGMENT Plaintiff files this Complaim pursuant to Pa. R.C.P. No. 2951 (b) for judgment 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, 4~ 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 Agreement (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 25, 2002 and all subsequent installments, whereby the entire stun 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 - Attorney' s Fees (15 % of unpaid principal) - Total - $ 21,531.18 463.56 3,229.68 $ 25,224.42 Together with interest which continues to accrue at the contract rate ($4.77 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 - Attorney's Fees (15% of unpaid principal) - Total - Together with interest which continues to accrue at the contract rate ($4.77 per diem), together $21,531.18 463.56 3,229.68 $ 25,224.42 STATE OF MARYLAND COUNTY OF BALTIMORE AFFIDAVIT SS. Vivian P. Merenbloom, Vice President, of Allfirst Bank, being duly sworn according to law, deposes 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 By: ~['~/( ? Vivian P. Merenbloom Vice President Sworn and subscribed to before me this: ff?~ day of ~.~ , 2002. Notary Public ~Y Oa,~ts~/~',~ ~tp~iz-~s loll~oF COMMERCIAL PROMISSORY NOTE AND SECURI'FY AGREEMENT $ 25,000.00 York, Pennsylvania ~"~('1¥(~} h0) ,'/'.Jx('~l // (city) (state) FOR VALUE RECEIVED, thc undcrsigned ("Bormwcr") promises to pay to thc order of Allfirst BanK, a Maryland state-chartered commercial bank ("Bank"), at Bank's ol~ces at 112..t N. George Street, York, Pennsylvania 17404, or at such other place as the holder of this Note and Security Agreement may from time to time designate, the principal sum o£Twcnly Five Thuusaud and 00/100 Dollars ($25,000.00). 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 an)' and ail other sums which may be owing to Bank by Borrower pursuant to this Note and Security Agreement. Tile following terms shall apply to this Note and Security Agreemeut. INTEREST. From tire date hereof until all sums due hcreuuder, incladiag principal interest, charges, lees aud expenses are paid in lull, tlre prthcipal amount outstanding from time to time pursuant lo this Note and Security Agreement shall bear interest at the Iixed per annuar rate of 7.99000%, aud calculated on thc basis ora three handfcd sixty {360) days per year lictor applied to the actual number of days ou which there exisls alt unpaid balance I~creunder: 2. REPAYMEN'F. Borrower shall make payments of principal and interest monthly, each such payment m tire amount of $508.28. on the 25th day of each month, beginning on April 25, 2001, and containing until March 25. 2006. which is the final aud absolute due date of this Note and Security Agreement, at wbich time all sums due hereunder, iucluding principal, iotercsl, charges, lkcs, and expcuses shall be paid in t~ll. Borrower nlay prepay this Note and Security Agreemeut in whole or in part at any time or I?om time to time x~ithout premium or additio~al interest. Ally prepayment of the principal balance of this Note and Secarity Agreement shall be applied to the outstandiug priucipal balauce of this Note and Security Agreement in the inverse order of scheduled maturities. All payments made pursuant to this Note nnd Sccarity Agreement shall be applied Ilrst to accrued and unpaid interest, then to uupaid expenses and charges payable hereunder, and theu to principul, or in such other order or proportion ~ the holder, in the hnlder's sole discretion, may elecl from time to time. 3 I.ATE PAYMENT CIIAR(iE. lfany payment due hereunder (including any payment io whole or in parl of principal} is uot received by thc holder within filteeu (15) caleud~ days alter its due date, Borrowcr shall pay a late paymcut charge equal to live perceot {5%) of the amount theu due. 4. GRANT OF SECURITY INTEREST. As collateral security for all obligatious, iudebtedness and liabilities of Borrower to Bank, whether direct or indirect (by way of endorsement, guaranty, pledge or otherwise), liquidated or unliqoidated, joint or several, absolute or coutingent, coutemplated or uucontemplated, or otherwise arising I~om auy loan, note. letter of credit, guaranty, overdralt, or any other duty owed by Borroxver to Bank, now existing or hereafter arisiug, including but not limited lo any and all sums due to Bank under or pursuant to this Note aud Security Agreemeut or any accmnpanying loan documents, any and all sums advauced by Bank to preseme or protect the Collateral (~ hereafter defined) or to preserve, protect, or ~rl~ct Bank's secnrity interests nnd liens in the Collateral. as well as lhe expenses of retaking, holding, preparing for sale, selling or otherwise disposiug of or realizing on the Collateral. or of any exercise by Bauk of Bank's rights in the eveut ofa delhult by Borrower or any Other Obligor. together with Bauk's attorneys' lbes. expenses of collection, and court costs (collectively, "Obligations"), and in consideration of advances from Bauk to Borrower. Borrower hereby gran~ and pledges to Bank a continuing security interest in the Ibllowing (collectively, "Collateral"): (a) all of the now owued and hereafter acquired machineD', equipment, lhrniture, fixtures (whether or eot attacbed to real prope~), vehicles, supplies and other tangible personal property of Bo~ower other thau lnvanto~ (~ hereafter deliued), including any leasehold interests therein ~d all substitutions, replacemanl p~ ~d annexations thereto, and including all improvements and accessions thereto and all spare pros, tools, accessories and attachments now owned or berealter acquired in coonection therewith, and any maiutenance agreements applicable thereto, and all proceeds and products thereof, including sales proceeds, and all rights thereto (collectively, the "Equipment"); (b) all of Borrower's now o~ed and herealler acquired invento~, wherever k~ated, including but not limited to goods, wares, merchandise, materials, raw materials, p~. containers, goods in process, finished goods, work in progress, bindings or component materials, packaging and shipping materials aud other tangible or intangible personal property held for sale or lease or furnished or to be furnished under contmc~ of semite or which contribute to the finished products or the sale. protnotion, storage and shipment thereof, all goods returned for credit, repossessed, reclaimed or o~envise reacquired by Borrower, whether located at lhcilities owned or leased by Borrower, in the course of transpo~ to or from account debtors, placed on cousignment, or held al storage locations, aud all proceeds aud pr~ucts thereof and all rights thereto, includiug but not limited to all sales proceeds, all chattel paper related to any of the Dregoing and alt documents, including, but not limited to, documents of title, bills of ladiog and warehouse receipts related to any of the Ibregoing (collectively, the "Invento~"); lc) all of Bo~owees now owned and herealter acquired and/or created acconnts, acco~nN receivoble, contracts, contract rights, inslruments, documents, chattel paper, notes, notes receivable, draiN, acceptances, general intangibles (including but not limited to trademarks, trade names, licenses, aud patents/, and other theses in action inet including sala~ or wages), and all proceeds aud products thereol; and all rights thereto, including but not limited to proceeds ofluvento~ and ~eturned goods and proceeds arising from the sale or lease of or the providing of Inveuto~, goods, or sen'ices by Borrower. as well ~ all other rights ofauy kind, contingent or non-contingeut, of Borrower to receive payment, ~nefit. or credit l~om any person or entity, includiug but not limited to the right to receive tax relimds or tax rebates (collectively. "Receivables"); (d) nil uow owned and hereafter acquired assets of Borrower, other than Receivables, Equipment aud lnveuto~', including but not limited to all leases, rents, chattels, leasehold improvements. iustallmeut purch~e and/or sales contracts, ~nds, stocks, invastmeut property, certificates, advallces, deposits, trademarks, ~ade names, licenses, patents and insurance ~licies, includiug cash value (collectively, "Other Propeay"); (e) all proceeds {including insurance proceeds) and products of the above-described prope~; (0 any of Borrower's assets in which Bank h~ been or is hereafter granted a security interest under any other security agreements, ootas or other obligations or liabilities between Bogower and Bank; (g) any acconuts, property, securities or monies of Borrower which may at any time be maintained at, ~signed to, delivered to, or come into possession Bank, ~ well as all proceeds aud products thereof; and {h) all of the books and records ~rtaining to any of the above-described properS. As used in this Note and Security Agreement, the term "Other Obligor" means any person or entity other thau Borrower that is now or hereafter liable, directly, contingently or othe~,ise, 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 secnre any of the Obligations, including, but not limited to, nny gu~antor, sureW, endorser, or co-maker of any oftbe Obligations. 5. CONFESSION OF JUDGlVlENT. Borrower irrevocably and uncondilionally aulhorizes and empowers any altorney admitlcd to practice before any court of record itl lhe United Slates lo appear on behalf of Borrower io any court in one or more proceedings, or before auy clerk thereof or prothonotary or olher court official, attd Io appear for, confess attd enler judgment againsl Borrower al any time upon and after rite occurrence of any default hereunder, with avermeut of default, with or wilhoul complaint filed, and without prior notice to or opportunity of Borrower for priur heariug, in favor of the holder of this Note and Seeurily Agreemeut in lhe full amount of lite iudebtedness evidenced by this Note and Security Agreement (iucludiug principal, accrued interesl and any and all charges, fees and expenses) plus courl costs, plus attorneys' fees equal to fifteeu percent (15%) of the uupaid balance of principal, iuterest, charges, and other sums due or which may become due hereunder, with release of all errors and withoul right of appeal. In addition to all other courts itl which judgment may be confessed agniust Borrower upon this Note and Securily Agreement, Borrower agrees that veuue attd jurisdiction shall be property in the conrts of any county or city or ftte Commonwealth of Peunsylvauia or in Ihe United Slates District Court for the Middle District of Pennsylvania. fim'rower waives the bcnefit of any and every slnlute, ordiunnce, or role of court, whether now itl force of hereafter enacted, which may be lawfully waived conferring upon Borrower any right or privilege of exemptiun, homestead~righls, nppraisemeul, slny of execution or supplcmenlary proceedings, or other relief frmn lite euforcemenl or immediate enforcement of a judgmeul or related proceediugs on al judgment. (To the exteul prohibited by applicahle Iow, nay judgmeut obtained by c~m fession shall not constitute a lien on any real prupcrty located itl Pennsylvania which is the residence of arty Borrower.) The nulhority ami power to appear f~r atnl enter judgment against Borrower shall not be exhausted by one or more exercises thereof, or by any imperfect exercise thereof, atnl shall uot be extinguished by any judgmeut entered pursuant thereto; such authority and power may be exercised on one or more occasions front time to lime, in the same or different jhrisdiction's, as often as the holder shall deem necessary or advisable. BORROWER tlEREBY ACKNOWLEDGES TtlAT TIlE CONFESSION OF JUDGMENT PROVISIONS tiEREIN CONTAINED WlIICIi AFFECT AND WAIVE CERTAIN LEGAL RIGIITS OF BORROWER ItAVE BEEN BEAD, UNDERSTOOD AND VOLUNTARILY AGREED TO BY BORROWER. 6. REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrower represents, warrants and covenants that: 6. I Authority; Location; Name. Borrower is duly organized and existing itt good standing in tile state of its organization, is qualified to do bnsiness and in good standing in all jurisdictions where it conducts its business or its Receivables are located, and has all requisite power, authority, licenses and permits to own its property and carry on its business. The execution and delivery of this Note and Security Agreemant have bee~r duly authorized by appropriate corporate, company or partnership action. The principal place of business of Borrower, the books and records relating to Borrower's business and the Collateral, and the Collateral are located at the address(es) set forth in this Note and Security Agreement. Borroxver shall immediately advise Bank in writing of the opening of any new place of business or the closing of any of its existing places of business, and 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 bas never received any notifications, citation, complaint or notice of investigatio~r relating to the making, storing, handling, generating or transporting of any materials or substances which under applicable laws require special handling in collection, storage, treatment or disposal ("Hazardous Substances"), and Borrower does not own, make. slore, handle, dispose of or transport any Hazardous Substances in violation of any applicable laws. 6.3 ERISA. Borro:vcr and each of its affiliates and subsidiaries ["ERISA Affiliates") which are under common cnntrol, or are part cfa controlled group, within thc meaning of the Employee Retirement lnco~ne Security Act of 1974, as amended ("ERISA"), are in compliance with all applicable provisions of ERISA with regard to each of its employee benefit plans (as defined ilr ERISA) {"Employee Banefit Plans"). Neither a reportable event (as defined in ERISA) nor a prohibited transfar (as defined in ERISA) has occun'ed with respect to any Employee Benefit Plan of Borro',~:r or any ERISA Afl'il/ate. Immediately npo~r the nccnrrence of any such reportable eve,at, Borrower shall promptly thrnish to Bank nntice thereof, as filed with Pcnskm Bancfit Goaranty Corporation ("PI!iGC"). Neither Borrower nor any ERISA Affiliate has completely or partially withdrawn from any multiemploycr plan and no such mnltiemployar plan is in reorganizatiml, all as provided by ERISA. Borrower and each ERISA Affiliate has met its minimum funding requirements and has no unfulfilled ohligafions under ERISA to contribate to any Employee Benefit Plan. Borrower shall promptly nofily Bank of any assertion by PBGC of liability of Borrower or any ERISA Affiliate andcr Title IV of ERISA. The lhilure of Borrower to pay within thirty (30) days the mnoont of any liability under Title IV of ERISA demanded by PBGC shall constitute a delhult hereunder. 6.4 Laws. Borrower shall comply at all times with all laws, ordinancas, rules and regulations of any Federal, State, municipal or other public anthorities having jurisdiction over Borrower, thc Collateral or any of Borroxxcr's other assets, inclnding but not limited to ERISA and all laws relating to lt~ardous Substancas. 6.5 Taxes. There are no unpaid Federal, State, city, county, or other taxes owed by Borrower, there arc no Federal. State, city, county or other tax liens presently filed against Borrower. and there are no outstanding personal property taxes of any kind. Borrower shall pay and discharge, when due, all taxes, levies, liens,and other charges on any or all of its assets, including but not limited to Inventory, Equipmant, Receivables, and Other Property and shall pay promptly, whan due, all other to. xes, including withholding taxes. 6.6 Recording and Legal Costs; Further Documents. Borrower shall pay all costs and expenses incident to the making of the loan(s) secured hereby and perfection of Bank's security interests hereunder, including but not limited to all attorneys' fi~es (to the extent not prohibited by law) and all recordation costs and taxes incident to filing of financing statements and continuation statements in respect thereol~ Borrower shall execute and deliver to Bank l¥om time to time any instruments or documents, and slrall do all things necessary or convenient to carry into effect the provisions of this Note and Security Agreement. Borrower designates Bank or any of its officers as attorney-in-fact to sign Borrower's name co any such instruments or documents, and to file the san~e as may be appropriate. Borrower agrees that filed photocopies of financing statements and continuation statements shall be sufficient to peril:ct Bank's security interest hereunder. 6.7 Books and Records. Borrower shall maintain such records with respect to the collateral and the condition (financial and othenvise) and operation of Borrower's business as Bank may request from time to time, aod shall Ihmish Bank such information with respect to the Collateral, account debtors, and the condition (financial and otherwise) and operation of Borrower's business, including but not limited to balance sheets, operating statements, and other financial information, as Bank may request from time to time. Bank may at any time and without prior notice to Borrower and without the consent of Borrower directly co~rtact accmmt debtors and verily, or confirm thc status of tile Receivables. Borrower shall furnish Bank or cause to be fumisbed to Bank such financial i~rformation with respect to any Other Obligor, including but not limited to balance sheets, operating statements, personal financial statements and other financial inlbrmation, as Bank may request from time to time. Bank or any of its representatives may fi'om time to time inspect, check, make copies of or extracts from the books, records and tiles oi"Borrower, and inspect any of the Collateral wherever located. Borrower shall make same available at any time for such purlx~scs. Il'requested by Bank, Borrower shall make all necessary entries in its books to disclose the assignment of Receivables to Bank, and permit Bank to verify Receivables. 6.8 Insurance, Borrower has and shall maintain insurance on all of its assets and properties, including but not fimited to the Collateral, at all times and against hazards, with companies, in amounts and in form acceptable to Bank. Borrowar shall submit to Bank original insurance policies and receipts evidencing payment of the premiums due on same. The policies shall name Bank as sole loss payee and additional insured with respect to the Collateral, and shall be endorsed so as to make them noncancellable unless thirty (30) days prior notice of cancellation is provided to Bank. 6.9 Receivables. If the Collateral includes Receivables, (a) each Receivable shall be paid in full on or before its due date, as represented to Bank, and if not so paid, Borrower shall pay any amounts represented to be owing thereon immediately to Bank, if Bank so demands; (b) if any allowance or credit on any Receivable is given by Borrower, then Borrower shall pay the same immediatoly to Bank, if Bank so demands; (c) if any property evidenced by a Receivable should be returned to Borrower, then Borrower shall hold the same in trust as security lbr and subject to thc ciders of Bank and Borrower shall pay the amount represented to be owing on tile rebated Receivable immediately to Bank, if Bank so demands; (d) each and every Receivable shall be bona fide, be for a certain undisputed claim or dmnand Ibr the amount Borrower represented to be owing thereon, represent a sale and delivery, of personal property sold or work and labor done, and not be subject to any set-oil, counterclaim or contingent liability upon the fulfillment ofany contract or condition whatsoever; and (e) Bank aufl~orizas and permits Borrower to collect Receivables from account debtom. This privilege may be terminated by Bank at any time without notice to Borrower before or after dethult bareundar, and Bank may notify any account debtor or account debtors of the assignment of Receivables and collect the same, provided, however, Borrower shall oct permit a material clrange in any Receivable, or a material change in the temrs of any contract giving rise to a Receivable. Borrower shall at any time requested by Bank notify any or all account debtors to make payment of their Receivables to Bank for the deposit to a collateral account with Bank, titled and designated as Bank may require. Funds in such collateral account shall be subject to die control of Bank, and the property of Bank alone, and not subject to withdrawal by Borrower. Borrower shall receive all payments on account as agent of and Ibr Bank and shall transmit to Bank, on tile day thereof, or at other mutually agreed upon intervals, all original checks, dra/ls, acceptances, notes and other evidences of pa)mant received in payment ofc¢r on account of receivables, incloding all cash monies similarly received by Borrower. For such purpose, Borrower does hereby grant to Bank access to any post office boxes in which mad is received. Until delivery of all such remittances to Bank. Borrower shall keep the same separate and apart from Borrower's own funds, capable of identification as the property of Bank, and shall hold the same in trnst for Bank. Further, Borrower agrees that bank may pay, for the account of Borrower, any taxes, levies, or other charges affecting Borrower's assets, including but not limited to Inventory or Equipment which Borrower fails to pay, including all other taxes and levies, and any soch payment shall constitute a liability of Borrower. If Bank is collecting the Receivables as above provided, Bank shall have the r/gilt to receive, indorse, assign and deliver in Bank's name or Borrower's nmne any and all checks, drafts and other instruments tbr the payment of money relating to the Receivables, and Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. Borrower constitutes Bank or Bank's agent dasignee as Borrower's attorney-in-fact with Ix~x~ar with respect to the Receivables: (a) to endorse Borrower's name upon any notes, acceptances, checks, drafts, money orders or other evidancas of paymant of Collateral that may come into Bank's possessi'on; (b) to sign Borrower's name on any invoices relating to any of the Receivables, dratl:s against account debtors, assignments and verifications of Receivables and notices to account debtors; (er to notify the post office authorities to change the address for delivery of mail addressed to Borrower to sucb address as Bank ma5' designate; (dr to receive, open, and dispose of mail addressed to Borrower; (er to do all other acts and things necessary, proper or convenient to carry out tile terms and conditions and purposes and intent of this Note and Security Agreement. The power of attorney hereby granted, being coupled with all interest, is irrevocable while any of the Obligations remain unpaid or unperformed. Bank may, without notice to or consent from Borrower and without afli:cting Borrower's obligations hereunder, sue upon or other.vise collect, extend the time of payment of or compromise or settle for cash, credit or otherwise upon any terms, any of the Receivables or any securities, guaranties, instruments or insurances applicable thereto or release the obligor thereon. Bank is authorized and empowered to accept the return of any Collateral represented by any of the Receivables without notice to or consent by Borrower, all without discharging or in any way affecting Borrower's liability to Bank. Bank does not, by anything herein or in any assignment or othenvise, assume any of Borrower's obligations under any contract or agreement assigned to Bank, and Balk shall not be responsible in any way for the performance by Borrower of any of the terms and conditions thereof. Upon demand, Borrower shall open all mail only in tile presence ora representative of Bank, who may take therefrom any remittance on Receivables assigned to Bank. Bank is also granted the power of attorney to have mail delivered to Bank, aod not to Borrower, and to open all mail and take tberefrom any remittance on any Receivables. Bank or its representative may endorse or sign the name of Borrower on remittances in respect of Receivables, invoices, assignments, financing statements, notices to account debtors, bills of lading, storage receipts, or other instruments or documents itl respect of Receivables or the property covered thereby. 6.10 hwentory. If tile Collateral includes Inventory, (ar Bank or its representative may endorse or sign tile name of Borrower on remittances in respect to Invantory, assigmnents, invoices, thlancing statenrcnts, notices to debtors, bills of lading, noticas to suppliers, storage or other instrunlents or documents in respect to Inventory or the property covered thereby; (b) Bank or its represantative may from time to time verily Inventor3', throogh actual count or othep, vise, mrd Borrower shall make same available at any time tbr such purpose; (c) so long as neither Borrower nor any Other Obligor is itl default of any of the Obligations. hwentory subject to Bank's continuing security interests may be sold by Borrower in the ordinary course of business, bot shall not otherwise be takeo or removed ti-om Burrower's premises. 6. I I Further Covenants. Without the prior written consant of Bank, Borrower shall not: (ar pledge or grunt any security interest in any Collateral to anyone except Bank. nor permit any financing statement (except Bank's financing statement) to be on file itl any public office w/th respect thereto; (b) permit or suffer any lien, levy or other encumbrance to attach to any of the Collateral or to any other assets of Borruwcr, except ibr liens and encumbrances m [hvor of Bank; (c) make any agreement, compromise, settlemeot, bulk sale, lease or translkr nf assets otber than in the normal coorse of business: Id) assume, guarantee, andorse or otherwise become liable in connection with tile obligations of any person, firm or corporation, except by endorsement of instroments ~br deposit or collection or similm transactions in the ordinary course of business; (er enter into any merger or consolidation, or sell or lease snbslantiaily all of/ts assets: or (I) purchase or acqoire tile obligations or stock of any person, firm or corporation or other enterprise whatsoever, other than tile direct obligations of the United States or Bank. 7. DEFAULT. Any of the lbllowing will be a delhult under this Note and Security Agrccmant: (ar [hilure to pay any principal, expense, fee, charge or interest when due, or failure to perlbrm any other obligations herenndcr; (b)a dcPault by any Borrower upoo any of the existing or l'uture obligations of any Borrower to Bank; (c)a default by any Other Obligor upon any of the existing or furore obligations of any Other Obligor to Bank; (dr a default by any Borrower under, or breach of any provision or warranty of, this Note and Security Agreement, any other agreement, instrument or documant in connection with any of the Obligations, or any other agreement, instrument, or document betwean any Borrower or other Other Obligor and Bank, or any corporate affifiate of Bank, whether previously, smmltaneously, or hereafter entered into; (er a material adverse change in tire financial condition of any Borrower or Other Obligor from that expressed in the financial statement most recently submitted to Bank prior to the date of this Note and Security Agreement, as determined in good lhith by Bank in its sole discretion; (f) iostitution of bankruptcy, insolvency, reorganization or receivership proceedings by or against any Borrower or Other Obligor in any state or federal court; (g) the appointment of a receiver, assigoce, custodian, trustee or similar official under any federal or state insolvency or creditors' rights law for any property of any Borrower or Other Obligor; (hr lapse or termination of the interest of any Borrower or Other Obligor in any of the Collateral other than through sales of lnveotory or other use of Collateral in the ordinary course ot' business; (ir failure of any Borroxver or Other Obligor to furnish to Bank such collateral or additional collateral as Bank may in good faith request; ii) any warranty, representation, or statement to Bank by or on behalf of any Borrower or Other Obligor proving to have been incorrect in any material respect when made or furnished; (k) the occurreoce of any event which is, or would be with the passage of time or the giving of notice or both, a delhult under any indebtedness of any Borrower or Other Obligor to any person other than Bank; (I) any material loss, theft or snbstantial damage, not fully insured lbr the banefit of Bank, to any of the assets of any Borrower or Other Obligor, or tile transfer, lease or eocnmbrance or other disposition of all or any material part of the assets of any Borrower or Other Obligor other than in the ordinary course of business of the Borrower or Other Obligor; (mr the entry of any final judgment against any Borrower or Other Obligor for tfie payment of money in excess of $5,000.00; (n) the levy upon or attachmant of any assets of any Borrower or Other Obligor; (o) the recordation of any federal, state or local tax lien against any Borrower or Other Obligor; (pr a change oi" ownership or dissolution, merger, consolidation, liquidation or reorganization of any Borrower or Other Obligor which is a corporation, partnership or other legal entity; (q) the death of any Borrower or Other Obligor who is a natural person; (r) thilnre of any Borrower or Otber Obligor to furnish to Bank such financial inlbrmation as Bank ma5' require t?om time to time; (s) the determination in good faith by Bank, in its sole discretion, that the ability ol'any Borrower or Other Obligor to pay or perform any of their respective obligations to Bank is impaired tbr any reason. 8. REMEDIES. 8.1 Specific Rights and Remedies. Upon a default, in addition to all other rights and remedies available to the holder of this Note and Security Agreement under any other document or agreement between Borrower and Bank or under applicable law. the holder of this Note and Security Agreement, in the holder's sole discretion and without notice or demand, may: (ar raise the rate of interest accruing on the unpaid balance due uuder this Note and Security Agreement by two percent (2%) percentage points above the rate of interest otherwise applicable, independent of wbether tire holder of this Note and Security Agreement elects to accelerate the unpaid principal balance as a result of such default; and (b) declare the entire unpaid principal balance plus accrued interest and all other stuns due bereundcr immediately due and payable; (c) exercise any rights of a secured creditor under the Llniform Commercial Code, including the right to take possession of the ColIateral without the use of judicial process or hearing of any kind and the right to require Borrower to assemble the Collateral at such place as Bank may specify. Borrower agrees that a dcthult under this Note and Security Agreement is a default by Borrower under all other liabilities and obligations of Borrower to the holder, and that the holder shall have the right to declare immediately due and payable all of such other liabilities and obligations. Borrower also hereby authorizes Bank, upon a default, but without prior notice to or demand upon Borrower and without prior opportunity of Borrower to be heard, to institute an action for replevin, with or without bood as Bank may elect, to obtain posscssimr ofany of the Collateral. In such action tbr replevin, a copy of this Note and Security Agreement verified by affidavit of Bank or sworn on behalf of Bank shall constitute evidence of Bank's right to possession of the Collateral. 8.2 Costs of Collection. Upon the occurrence of any default, Bank shall be entitled to recover from Borrower reasonable attorneys' ti:es of any 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 th/rd party, Borrower, or any Other Obligor. Expenses recoverable from Borrower shall (to tire extent not prohibited by law) iuclude costs of collection, includhrg lien, judgment, and 6ther record, searches, salaries, out-of-pocket travel, living expenses and the hiring of agents, consultants, appraisers, accountants, or otherwise. All stuns of money thus expended, and all other monies expended by Baok to protect its interest in the Collateral (including insurance, taxes or repairs) shall be repayable by Borrower to Bank on demand, such repayment 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 Unilbrm Commercial Code, Bank at any time then or thereafter, in its discretion, may lawfully enter any of the Borrower's premises or the premises where the Collateral is located, and with or without judicial process, lawfully remove, under Section 9.5-3 of the Unitbrm 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 any other manner) all or any part of the 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 writiug belbre the sale of the Collateral ~r any 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 cleat, ahd at any such public sale Bank may bid for and become the purobaser of nay or all of such Collateral; and/or Bank may foreclose its security interest in the Collateral in any way permitted by law. [n connection with any notices to be given pursuant to this Paragraph 7.3, it is agreed in all instances that five (5) business days notice constitutes reasonable notice. Any such notice shall be deemed given when delivered or deposited in the U.S. mail with first class postage. The net proceeds of any such sale or sales and any amounts received in liquidation oftbe 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 default (to the extent not prohibited by law) and, at the option of Bank, [ess any prior lien claims, shall be applied against the Obligations in the order that Bank in its sole discretion 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 fbr any deficiency remaining after any foreclosure. Thc purobase at any such sale shall thereaRer hold the Collateral absolutely free from any claim or rigbt of whatsoever kind including any equity of redemption of Borrower, and such dentand, notice or right in equity are hereby expressly waived and released by Borrower. 8.4 Alternative Remedies. Bank may exercise its rights and remedies bereander either alternatively or concurrently with its rights under any and all other agreements between Bank and Borrower and shall have the tull right to rcalize upon all available Collateral, collecting on the same or instituting proceedings in connection therewith, until Bank receives payment itt tull of all amoants owing to Bank under any of its agreements with Borrower, including principal, interest, costs and expenses, and costs of enforcement or attempted enforcement of this or any other agreement amung or between Bank and Borrower or any Other Obligor. Bank shall be under no obligation to pursue Bank's rights against any Other Obligor or any of the Collateral of an)Other Obligor securing any of the Obligations belbre pursuing Bank's rights against Borrower or tile Collateral. 9. RIGHT OF BANK TO ACT WlTH RESPECT TO OTIIER OBLIG©RS AND COLLATERAL; WAIVERS BY BORROWER. Borrow'er hereby assents to any and all terms and agreements between Bank and any Other Obligor, and all amendmants and modilicatioas thereof, whether presently existing or herea/~er made and whether oral or in writing. Bank may. without compromising, impairing, diminishing, or in any way releasing Borrower from tbe Obligations and without notifying or obtaining the prior approval of Borrower, at any time or from thne to time: la) waive or excuse any de faalt by any ()tiler Obfigor, or delay in thc exercise by Bank of an~,j or all of Bank's rights or remedies with respect to such delhult; lb) grant extensions of time li.~r payment or pcrtbnnance by any Other Obligor; lc) release, substitute, exchange, sorrender, or add collateral of any Othcr Obligor, or waive, release, or subordinate, in whole or iu part, any lien or secnrity interest held by Bank on any real or personal property securing payment or perlbrmance, in whole or in part, of the obligatkms of any Otber Obligor; (d) release any Other Obligor; (e) apply payments made by any Other Obligor, to any sums owed by any Other Obligor to Bank, in any order or manner, or to any specific acconat or accounts, as Bank may elect; and (l) modil3', change, renew, extend, or amand, itt any respect, Bank's agreement with any Other Obligor, or any docoment, instrument, or writing, embodying, or reflecting the same. Borrower waives: la) 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) Bank's acceptance hereof or Bank's intent/on to act, or Bank's action, in reliance hereon; (ii) the present existence or future mcnrring of any of the obligations of any Other Obligor to Bank or any tenns or amounts thereof or any chauge 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 the obligations of any Other Obligor to Bank; lb) presentment and demand for payment of any sum due from any Other Obligor and protest of nonpayment; and lc) demand for performance of any Other Obligor. 10. WAIVERS; EXTENSIONS OF MATURITY. Borrower, and all parties to this Note and Security Agreement, whether maker, andorser, or guarantor, waive presentment. demand, notice of dishouor and protest, and agree that tile maturity of this Note and Security Agreement, 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. I I. JOINT AND SEVERAL LIABILITY. If more than one person or entity is executing this Note and Securi~ Agreement as a Borrower, all liabilities under this Note and Security Agreement shall be joint and several with respect to each of such persons or entities. 12. BINDING NATURE; iNVALIDITY OF ANY PART. This Note and Security Agreement shall inure to the 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 enfomeeble against Borrower and Borrower's personal representatives, successors and assigns. If any provision or part of any provision of this Note and Security Agreement shall for any reason be held invalid, illegal or unentbreeable in any respect, such invalidity, illegality or unentbrceability shall nnt affect any other provisions of this Note and Security Agreement, and this Note and Security Agreement shall be construed as if such invalid, illegal or uncnfbrceable provision or part thereof had never been contained herein, but only to the extent of its invalidity. illegality or unenfomeability. 13. MAXIMUM RATE OF INTEREST; COMMERCIAL LOAN. Notwithstanding any provision of this Note and Security Agreement to the contrary, Borrower shall not be obligated to 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 Agreement 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 constroed to require the payment of any amoant of interest in excess of that permitted by applicable law, theu the interest to be paid hereunder shall be held subject to reduction to the 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 been contemplated at all times by Borrower that the laws of the Commonwealth of Pennsylvania will govern tile maximum rate of interest that it is permissible for the holder of this Note and Security Agreement to charge Borrower under this Note and Security Agreement. Borrower warrants that this Note and Security Agreement evidences a loan made solely to acquire an interest in or carry on a busioess or commercial enterprise. 14. CHOICE OF L)kW; CONSENT OF VENUE AND JURISDICTION. This Note and Security Agreement shall be governed, constroed and interpretcd in accordance with the taws of the Commonwealth of Pennsylvania even if the Pennsylvania rules governing conflicts of laws would other.visa require that the laws of another jurisdiction govern this Note and Security Agreement. Borrower consents to the jurisdiction and venue of the courts of any county or city in tile Commonwealth of Pennsylvania or to the jurisdiction and venue of the United States District Court fbr the Middle District of Pennsylvania in any action or judicial proceeding brought to enforce, construe or interpret this Note and Security Agreement. Any action brougbt by Borrower against Bank which is based, directly or indirectly, or in wbole or in part, upon this Note and Security Agreement or any matter related to this Note and Security Agreement shall be brought only m the courts of the Middle District 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-ofl; recoupment or counterclaim which Borrower might othep, vise have against the holder of this Note and Security Agreement and Borrower shall pay absolutely tile payments of principal, interest, charges, tees and expenses required hereuuder, free of any deductions aad without abatement, diminution or set-ott~ 16. ADDRESSES. Set forth below ate the addresses of: Address of Chief Executive Office 456 Mount Rock Road Address of Location of Books and Records Relating to Collateral Other Address(cs) of Location(s) of Collateral (if soy) Ncwville. PA 17241 Telcnhonc No. 1'7171 776-7177 456 Mount Rock Road Newville. PA 17241 Telephone No. t'717t 776-7177 (Telephone) [Telephone) 17. WAIVER OF ,IURY TRIAl.. Borrower (by execution of this Note and Security Agreement) and Bank (by acceptance of this Note sod Security Agreement) agree that any suit, action or proceeding, whether clain! or counterclaim, brought or instiluted by Borrower or Bank or with respect to this Note and Security Agrecmcot or which in any way relates, directly or indirectly, to tile obligations of Borrower to Bank under this Nole and Security Agreement or the dealings of the parties with respect thereto, shall be tried mdy by a court and out by a jury. BORROWER AND BANK ItEREBY EXPRESSLY WAIVE ANY RIGItT TO A TRIAL BY JURY IN ANY SUCll SUIT, ACTION, OR PROCEEDING. Borrower and Bank acknowledge and agree that this provision is a specific and material aspecl of the agreement between tile parties and that Bank would aot enter into the transaction with Borrower il' this provision were not a part of their agreement. IN WITNESS WIIEREOF, and intending to be legally bound hereby, tile undersigned executes this Note and Security Agrccraent under seal, as Borrower, as ut'the date tint written above. WITNESS: (Signaturef (Print'lkl:~m{e) - BORROWER: ~, Samuel ~. Calaman, Individually, and Trading as Calaman's Lawn Serviee~ a Pennsylvania Sole Proprietorship (Print Name) Address: 456 Mount Rock Road Newville, Pennsylvania 17241 Telephone Number: (717) 776-2326 Social Security No: 173-54-7713 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 ifa CALAMAN'S LAWN SERVICE, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : : No. 09. -- 1¢,2 : . 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/Qt3r~: I I' Principal Sum Due - Interest to 4/2/02 - Attomey's Fees (15% of unpaid principal) Total - ,2002, in the amount off $ 21,531.18 463.56 3,229.68 $ 25,224.42 Together with interest which continues to accrue at the contract rate ($4.77 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 : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW ; : 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. Dated: 0~b~ ,2002 fvl~. ~ 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. 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 tYa CALAMAN'S LAWN SERVICE Defendants : NO. 02-1633 - CIVIL TERM : : 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 · ,, ,, ' ' respectfully Calaman's Lawn Serwce ( Calamans ), by hxs undersxgned counsel, 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. 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. WIcIEREFORE, the Defendants, Samuel A. Calaman, individually, and Samuel A. Calaman t/a Calaman's Lawn Service respectfully request that this Court strike off the Confession of Judgment of April 3, 2002 in the above-captioned matter, request a prompt heating on this issue, and enter a role 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 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 with reference to this matter until the issues are resolved. Date: 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) 233-4101 Attorneys for Defendants, Samuel A. Calaman t/a Calaman's Lawn Service ALLFIRST BANK, BEFORE THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. SAMUEL A. CALAMAN, Individually, and t/a CALAMAN'S LAWN SERVICE Defendants NO. 02-1633 - CIVIL TERM ClVlL 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 true 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. 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 VJ SAMUEL A. CALAMAN, Individually, and t/a CALAMAN'S LAWN SERVICE Defendants NO. 02-1633 - CIVIL TERM CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Donald R. Reavey, Esquire, hereby certify that I did on this ~ ~'~ day of April, 2002, serve a copy of 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: 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 t/a CALAMAN'S LAWN SERVICE, : Defendant : : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : No. 02-1633 Civil Term RESPONSE AND ANSWER OF ALLFIRST BA/~IK TO PETITION OF DEFENDANTS TO STRIKE OFF OR OPEN CONFESSED JUDGMENT COMES NOW, Plaintiff, Allfirst Bank, by and through its undersigned attorneys, and responds to the Petition of Defendants to strike off or open confessed judgment as follows: I. Answer to Petition to Strike Off 1. Admitted in part, denied in part. It is admitted that 6n April 3, 2002, Plaintifffiled 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 denie~d to the extent that Defendant is alleging that Plaintiff relied on anything other than the Note. The 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. Plaintifflacks sufficient information to form a belief as to truth of the averments of Paragraph 3 and therefore, the same are denied. By way of further 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 Defendani 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 as a conclusion of law to which no response is deemed required. 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 that entry of confession judgment against an individual consumer is prohibited by Pa.R.C.P. 2950, et seq. It is denied that Plaintiff is prohibited from entering judgment against Samuel ,4,. 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/ransaction. 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 tho face of the confessed judgment, Plaintiff respectfully requests the Court deny and dismiss with Prejudice Defendant's Petition to Strike. II. Answer to Petition to Open 10. Denied. The terms of the warrant of the attorney require "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 Complaint for Confession of Judgment, Plaintiff sets forth a specific averment of default. 11. Denied. The computation of the amount due simply iets forth the actual amount due, including principal, interest, late fees and attorney's ees as] of the date the Complaint was 3 prepared and is true and accurate in all 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 all respects. WHEREFORE, upon Defendant's failure to raise a meritorious defense in its Petition to Open, Plaintiffrequests the Court dismiss the Petition to Olden with prejudice. HENRY & BEAVER LLP By: 'M~~' I.D. #55774 . 937 Willow Street P.O. Box 1140 Lebanon, PAi 17042-I 140 (717) 274-3644 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 true 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 BANK By: .¥ '.~v[i~an' p .~(~b ~ ~ Vice President AFFIDAVIT OF BUSINESS PURPOSE AND EXPLANATION AND WAIVER OF RIGHTS REGARDING CONFESSION OF JUDGMENT On the date hereof, the undersigned (the "Obligor", whether one or more than one) is signing and delivering to ALLFIRST BANK (the "Bank") a Promissory Note for the Obligations of Samuel S. 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 the 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 the 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 wh~re the judgment is entered; (b) The Obligor is giving up an important right to any notice or opportunit3~ 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 this judgment and understands that 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 opportunit~ for a hearing before the Bank may request and use the power of the state government to deprive the Obligor of its property pursuant to the judgment by seizing or having the Sheriff or other official seize the Obligor's bank accounts, inventory, equipmeht, 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 thati is seized by the Bank pursuant to the judgment without notice or a hearing, 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) If the Obligation is the Bank's printed form of Promissory Note or Guarhnty, 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 inl the Obligation which gives the Bank the rights described in subparagraphs (a) through (f) above. Fully and completely understanding the rights which are being given up if the O~ligor 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 does so under penalty of perjury: The Obligor is either (a) an individual engaged in a business enterprise, whose annual income exceeds~10,000; (b) a partner in a business partnership; (c) a member in a limited liability company; (d) exercises actual control over tl~e managerial decisions as an officer, director, stockholder, trustee, by contract, or otherwise of the business enterprise in which the loan proceeds will be utilized; or (e) is the spouse of an individual in one of the previously described categories whose execution &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. THE OBLIGOR HAS READ THIS AFFIDAVIT AND EXPLANATION AND WAIVER PRIOR TO SIGNING THE mail, postage prepaid, on(~ ~3~t~ I q Donald R Reavy, Esquire ~- "- 2933 North Front Street Harrisburg, PA 171 I0 Attorney for Defendant CERTIFICATE OF SERVICE I, Lisa I. Fox, of the fim~ of Henry and Beaver, LLP, d° hereby certify that I have forwarded a certified true and correct copy of the w~th~n RespOnse and Answer of Allfirst Bank to Petition of Defendants to Strike Off or Open Confessed Judgment by regular United States ,2002, to the f~llowing: 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 Defendants NO. 02-1633 - CIVIL TERM CIVIL ACTION - LAW PRAECIPE TO WITHDRAW PETITION OF THE DEFENDANTS, SAMUAL A. CALAMAN, INDIVIDUAI.LY AND T/A CALAMAN'S LAWN SERVICE TO STRIKE OFF OR OPEN CONFESSED JUDGMENT TO THE PROTHONOTARY: Kindly withdraw the Petition of the Defendants, Samual A. Caiman, Individually and T/A Calaman's Lawn Service to Strike Offor Open Confessed Judgment filed with this Honorable Court on April 29, 2002. rote: 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 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 Defendants NO. 02-1633 - CIVIL TERM CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Donald R. Reavey, Esquire, hereby certify that I did on this ~,~t, day o£ August, 2002, serve a copy of the Praecipe to Withdraw the Petition of the Defendants, Samuel A. Calaman, Individually and Ua Calaman's Lawn Service, to Strike Offor 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 17110 Telephone: (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 Defendants NO. 02-1633 - CIVIL TERM CIVIL ACTION - LAW PRAECIPE TO WITHDRAW PETITION OF THE DEFENDANTS, SAMUAL A. CALAMAN, INDIVIDUAI,!,Y AND T/A CALAMAN'S LAWN SERVICE TO STRIKE OFF OR OPEN CONFESSED JUDGMENT TO THE PROTHONOTARY: Kindly withdraw the Petition of the Defendants, Samual A. Calaman, Individually and T/A Calaman's Lawn Service 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 : NO. 02-1633 - CIVIL TERM : CIVIL ACTION - LAW SAMUEL A. CALAMAN, : Individually, and t/a CALAMAN'S : LAWN SERVICE : Defendants : CERTII~ICATE 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 Jud~-lent 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 171 l0 Telephone: (717) 233 -4101 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 02-1633 Civil CIVIL ACTION- LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due ALLFIRST BANK, Plaintiff (s) From SAMUEL A. CALAMAN, INDIVIDUALLY AND T/A CALAMAN'S LAWN SERVICE, 456 MT. ROCK ROAD, NEWVILLE, PA 17241 (1) You are directed to levy upon the property of the defendant (s)and to sell ALL OF THE DEFENDANT,S PERSONAL PROPERTY WITHIN CUMBERLAND COUNTY. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of FULTON BANK, GARNISHEE, OF 6520 CARLISLE PIKE, SUITE 600, MECHANICSBURG, PA 17055 GARNISHEE(S) as follows: and to notify the garniShee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property &the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $21,531.18 Interest FROM 4/2/02 $463.56 Atty's Corem % Arty Paid $32.50 UNPAID PRINICPAL) _ $3,229.68 Plaintiff Paid Date: APR/L 19, 2002 REQUESTING PARTY: Name MARC A. HESS, ESQUIRE Address: 937 WILLOW STREET P.O.BOX 1140 LEBANON, PA 17042-1140 Attorney for: PLAINTIFF Telephone: 71%274-3644 Supreme Court ID No. 55774 L.L. $.50 Due Prothy $1.00 Other CostsATTORNEY,S FEES (15% OF CURTIS R. LONG Prothonotary, Civil Division R. Thomas Kline, Sheriff, who being duly sworn according to law, states this writ is returned STAYED. Sheriff's Costs: Docketing Poundage Advertising Law Library Prothonotary Mileage Misc Surcharge Levy Post Pone Sale Garnishee TOTAL 18.00 2.26 .5O 1.00 14.49 30.00 40.00 9.00 $ 115.25 Advance Costs: 150.00 115.22 Sheriffs Costs: _ $ 34.75 Refunded to Atty on 4/29/03 Sworn and Subscribed to before me This ? q ~ay of_ ~0~3'~ - l~ot/honotary WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 02-1633 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTy: To satisfy the debt, interest and costs due ALLFIRST BANK, Plaintiff (s) From SAMUEL A. CALAMAN, INDIVIDUALLY AND T/A CALAMAN,S LAWN SERVICE, 456 MT. ROCK ROAD, NEWVILLE, PA 17241 (1) You are d/rected to levy upon the property of the defendant (s)and to sell ALL OF THE DEFENDANT,~' ...... ~ r~t~ONAL PROPERTY WITH/N CUMBERLAND COUNTY. (2) You arc also directed to attach the property of the defendant(s) not levied upon in the possession of FULTON BANK, GARNISHEE, OF 6520 CARLISLE PIKE, SU/TE 600, MECHANICSBURG, PA 17055 GARNISHEE(S) as follows: and to notify the garniShee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $21,531.18 Interest FROM 4/2/02 $463.56 Atty's Comm % Atty Paid $32.50 UNPAID PRINICPAL). $3,229.68 Plaintiff Paid Date: APRIL 19, 2002 REQUESTING PARTY: Name MARC A. HESS, ESQUIRE Address: 937 WILLOW STREET P.O.BOX 1140 LEBANON, PA 17042-1140 Attorney for: PLAINTIFF Telephone: 717-274-3644 Supreme Court ID No. 55774 L.L. $.50 Due Prothy $1.00 Other CostsATTORNEY,S FEES (15% OF CURTIS R. LONG Prothonotary, Civil Division R. Thomas Kline, Sheriff, who being duly sworn according to law, states this writ is returned STAYED. Sheriff's Costs: Docketing 18.00 Poundage 2.26 Advertising Law Library .50 Prothonotary 1.00 Mileage 14.49 Misc Surcharge 30.00 40.00 Levy Post Pone Sale 9.00 Garnishee _ TOTAL $ 115.25 Advance Costs: 150.00 115.2_5 Sheriff's Costs: _ $ 34.75 Refunded to Atty on 4/29/03 Sworn and Subscribed to before me This ~ q ~day of_~L/ - -- P~ot/honotary '~ C'~ia A. Brewbatcer C,