HomeMy WebLinkAbout02-1918Prothonotary
Court of Common Pleas
Cumberland County Courthouse
, PA
CUMBERLAND COUNTY PENNSYLVANIA
TO:
Stephen S. Benion a/k/a Steve Benion
4401 Packard Lane
Camp Hill, PA 17011-1920
AS PRESCRIBED BY LAW, YOU ARE NOTIFIED THAT A JUDGMENT HAS
BEEN FreED IN THIS OFFICE AGA1NST YOU BY CITIZENS BANK OF PENNSYLVANIA
1N THE AMOUNT OF. $110,831.97, T.T. OGETHER WITH INTEREST AND COSTS UNTIL
PAID, ON THE /~t--DAY OF f~,~,~, ~ ,2002.
Yours tmly,
- ~r~honot a~ ~
492647.1
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
SUITE SEVEN HUNDRED
CITIZENS BANK CENTER
WILKES-BARRE, PA 18701-1867
(570) 825-9401
ATTORNEY FOR PLAINTIFF/DEFENDANT
MELLON BANK, N.A., now by assignment,
CITIZENS BANK OF PENNSYLVANIA
8 West Market Street
Wilkes-Barre, PA 18711-0101
Plaintiff
VS.
STEPHEN S. BENION a/k/a
STEVE BENION
4401 Packard Lane
Camp Hill, PA 17011-1920,
Defendant
1N THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION -- LAW
1N CONFESSION OF JUDGMENT
NO. 0~-Iql~
CONFESSION OF JUDGMENT
Pursuant to the authority set forth in the warrant of attorney contained in the original note
and line of credit agreement, a tree and correct 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
the defendant, as follows:
492648.1
2.
3.
4.
Principal balance on Note ................... $ 91,333.90
Interest to 03/22/02 ......................... $ 922.42
Late Fees ................................. $ 103.66
Attorneys' Fees (20%) ....................... $ 18,471.99
TOTAL .............. $110,831.97
plus interest and costs until paid.
HOURIGAN, KLUGER & QUINN, p.C.
James T. Shoemaker, Esquire
ID No.: 63871
Attorney for the defendant for the purpose of
this complaint; otherwise, attorney for the
plaintiff
ORDER
~)~,~ ( ,2002, judgment is entered in favor of the
NOW,
this
of
plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania, and against the
defendant, Stephen S. Benion a/k/a Steve Benion, in the amount orS110,831.97 together with
interest and costs until paid.
Prothonotary
492648.1
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
SUITE SEVEN HUNDRED
CITIZENS BANK CENTER
WILKES-BARRE, PA 18701-1867
(570) 825-9401
ATTORNEY FOR PLAINTIFF/DEFENDANT
MELLON BANK, N.A., now by assignment,
CITIZENS BANK OF PENNSYLVANIA
8 West Market Street
Wilkes-Barre, PA 18711-0101
Plaintiff
VS.
STEPHEN S. BENION a/k/a
STEVE BENION
4401 Packard Lane
Camp Hill, PA 17011-1920,
Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION -- LAW
IN CONFESSION OF JUDGMENT
NO. C --19t?
COMPLAINT IN CONFESSION OF JUDGMENT
The plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania, by
and through its counsel, Hourigan, Kluger & Quinn, P. C., hereby complains of the defendant,
Stephen S. Benion affJa Steve Benion, as follows:
1. The plaintiff is a Pennsylvania state chartered bank with a place of business at 8
West Market Street, Wilkes-Barre, Pennsylvania 18711-0101.
2. The defendant is an adult individual having a last known address of 4401 Packard
Lane, Camp Hill, Pennsylvania 17011-1920.
3. On or about September 5, 1997, the plaintiff agreed to extend commemial credit
to defendant up to the principal amount of $93,000.00.
4. The aforesaid agreement to extend credit is evidenced by a note and line of credit
agreement (the "Note") dated September 5, 1997. (A true and correct copy of the Note is
attached hereto as Exhibit "A" and incorporated herein by reference.)
5. The Note has not been assigned, except as set forth above.
6. The Note authorizes the plaintiff to confess judgment against the defendant in
favor of plaintiff for the amount the defendant is liable to plaintiff, with interest, costs and an
attorney's commission of twenty percent (20%), with release of errors.
7. No judgment has heretofore been entered, in any jurisdiction, under the power to
confess judgment in the Note.
8. A default occurred in that the defendant failed to pay all principal and interest,
whereby the plaintiff declared the entire balance of the Note due and payable.
9. The debt due and owing the plalntiffby the defendant is evidenced by an affidavit
of Joseph E. Sweeney, Assistant Vice President of the plaintiff ("Sweeney's Affidavit").
(Sweeney's Affidavit is attached hereto as Exhibit "B" and incorporated herein by reference.)
10. Judgment by confession is not being entered against the defendant in connection
with a consumer credit transaction.
492649.1 2
11.
Consequently, the defendant are indebted to plaintiff as follows:
2.
3.
4.
Principal balance on Note ................... $ 91,333.90
Interest to 03/22/02 ......................... $ 922.42
Late Fees ................................. $ 103.66
Attorneys' Fees (20%) ....................... $ 18,471.99
TOTAL .............. $110,831.97
plus interest and costs until paid.
WHEREFORE, the plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of
Pennsylvania, requests that the Prothonotary enter judgment against the defendant, Stephen S.
Benion a/k/a Steve Benion, in the amount of $110,831.97, together with interest and costs until
paid.
Suite 700 Citizens Bank Center
8 West Market Street
Wilkes-Barre, PA 18701-1867
(570) 825-9401 (Telephone)
(570) 829-3460 (Facsimile)
Date: f~')r~\ I~/ ,2002
Respectfully submitted,
HOURIGAN, KLUGER & QUINN, P.C.
James T. Shoemaker, Esquire
I.D. No. 63871
Counsel for the plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of
Pennsylvania
492649.1 3
$ 93,000.00
~wmise ~ Pay. FORVALUERECE~ED, andintendingto belegally
bound,Undersigned, asdefinedbelow, promisesto peyto:
Mellon Bank. N.A.
("Ban~) or its ord~ at
Harrisburqf Pennsylvania
· esum ~
Ninety Three Thousand and 00/100
Dollars ($ 93t000.00 ), or such lesser or
greater principal amount as may be outstanding from time to time
under thc line of credit C'Line of Credit") astabllshed hereunder by
Bank for the benefit of Undersigned, with interest on the outstanding
balance from the date of this Note and Line of Credit Agreement
CNote') at the rote(s) C'C~ntraetual Rate(s)') and in accordance
with the repeymcnt schedule specified below.
Borrowing Money. (Please read carefully.) From the date hereof
to but not including ~ /~ 5/2.OOA (the "Maturity Date"),
Undersigned may borrow money from Bank through the Line of
Credit, up to the amount shown above, by using Mellon Bank's
Business Banking Telephone Hot//ne to acce~ Undersigned's Line of
Credit and to transfer funds to Undersigned's designated Mellon
Checking Account.
Subjea to rules and regulations established by Bank from time to
time, Undersigned may also borrow money from Bank by using such
other mear~ if any, as Bank may provide for that purpuse. Bank
reserves the fight to change or eliminate, without notice, any means
by which Undersigned may borrow through the Line of Credit and to
asmblish new means by. which Undersigned may borrow.
Undersigned may not usa borrowings to make payments due under
the Line of Credit or other indebtedness in favor of Bank.
Undersigned authorizes and directs Bank to deposit b~rrowings from
U~nj~elsi~ned's Line_o{ O'edit into Mellon Checking Account Number
~ c,~/o{~ G I"~"{ . titled in the name(s) of
Undersigned understands end agrees that, if any parson or entity i~
authorized to sign on or otherwise uae Undersigned's designated
Mellon Checking Account or any deposit, checking or credit account
linked with Undersigned's designated Mellon Checking Account
through Beak-by-Phone or Business Bank-by-Phone, such person or
entity is also authorized to borrow money through the Line of Credit
by the Business Banking Telephone Hotline. Undersigned further
undemands and agrees that Undersigned must repay all amounts
borrowed by such person(s) or entity(lea) as though Undersigned had
botrowed such money. Undersigned understands that Bank, upon
Undersi~ned's written requast, will exclude any of Underagned's
Mellon. Bank accounts fi'om Bank-by. Phone or Business
Bank-by-Phone, and it ia recommended that Undersigned make such
request if nece~a~ fur the protection and security of Undersigned's
If Bank alkn~ hirrowings above the amount shown above, all the
: terms of tbis Note will apply w those borrowings. By signing this
Note, Undarsigned hereby requests Bank to permit the borrowing of
mouey tl~rough Unders/gned's Linc of Cte..dit by thc use of Mellon
Bank's Busings Bnnldng Telephone Hotline and agrees thnt such
borrowings may be effeaed by one parson, even if eny agreement,
signature card, instructions or resolutions fur thc Line of Credit
provide fur .Ix.,,,wings over two signatures or other special
09/0s/1997
Hotline, and be available in the designated Mellon Checking Account
on the first business day following the day that transfer in/tructions
were given via the Business Banking Telephone Hotline; however,
Bank reserves the right to not make a borrowing available in the
designated Mellon Checking Account until a date after the business
day following the day that transfer instructions were given. For
example, if transfer instructions are given on Monday, the borrowing
will normally be available in Undersigned's designated Mellon
Checking Account on Tuesday; however, Bank reserves the fight to
not make thc borrowing available until Wednesday, or later. (This
example assumes that Monday, Tuesday and Wednesday were all
busine~ day~. Saturdays, Sundays, and any holidays or other days on
which Bank is generally not open for business will sot be considered
business days.)
Undersigned agrees that Bank may, at its option, record telephone
calls made to effect a borrowing from the Line of Credit. Bank will
not be liable for acting in good faith upon telephone orders or
requests which Bank believes in its sole discretion were made or
authorized by Undersigned. Bank will be entitled to presume that all
telephone callers who accurately identify Undersigned's Line of
Credit account number and the designated Mellon Checking Account
number are authorized to conduct the transactions described in this
Note, even if the designated Mellon Checking Account end/or any
borrowing authorization or resolution provides fur any covered action
to be made by more than one person acting together, or for other
special arrangements. Undersigned agrees that this Note amends any
other agreement, instruction, resolution or authorization of
Undersigned requiring more than one person to act with regard to
the Line of Credit or the designated Mellon Checking Account or any
other account linked to either the Line of Credit or the designated
Mellon Checking Account. Undersigned further agrees that this Note
amends (and will be deemed to override) any such agreement,
instruction, resolution or authorization made or given by
Undersigned in thc future as such agreement, instruction, resolution
or authorization would otherwise relate to this Note udinss that
agreement, instruction, r"'~,ointion or authorization ia received by
Bank and specifically indicates that it is intended to modify this Note.
All telephone iustruc/ions executed by Bank in good faith and in
accordance with thc procedure described above will be binding upon
Undersigned.
Notwithstanding any other provision of this Note, Undersigned's
ability to borrow money from Bank through the Linc of Credit shall
not be effective until an authorized representative of Bank has signed
this Note to evidence Bank's approval of the Linc of Credit.
Contractual Rate(s); Repayment Schedules.
~. ~ Interest at a rate per annum which is 1.00%
above Bank's Prime Rate, such rate to chenge from time to time ns
of the effeaive date of each announced change in such Prime Rate,
shall be paid when pr/nc/pal peymen~ are due. Principal shall be paid
in 059 consecutive monthly idstallmcnla equal to 1/ 60 th of
the principal halenco hereof outstanding on the Billing Date,
c?m~me.~_ncing on. ~ and continuing timelier on the
I _-)L.Ca day or each month; provided, howt'ver, that each monthly
iustallmcnt of pfincipel will be no leas than $100.00, and provided
further that the amount of the monthly installment of prindpel shall
~never exceed thc amount of principal actually oumanding. The entire
balance of the. jnde_bted_ne~, if not sooner paid, shall be due and
pa~abie on ~. Cl'ne day of each month on which
. principal end/or interest shall b~. paid, as deacfibed abut, is the "Due
thDate'')
e Due Date. The Billing .D~te shall be twelve (12) da~ befure
. Page I of 6
[] The Billing Date shall be days before
the Due Date.
Thc prindpal balance hereof, together with all
accrued and unpaid interest, shall be paid on ,
and interest at a rate par annum which is % above Bank's
Prime Rate, such rote to change horn time to time as of thc
effective date of each annonnced change in such Prime Rate, shall
be paid on the day of each month commencing on
[] The prindpai balance hereof, together with all
accrued and unpaid interest, shall be paid on
and interest at a mtn per annum which is % above
CD Rate, such mtn to change from time to time as of thc effective
date of each change in or resetting oftbe CD Rate, shall be paid on
the --. day of each month commencing on
[] In no event shah the rate charged on this Note exceed the lesser of
% per annum or the highest rate permitted by applicable
law.
Undersigned agrees that Bank may, at its option, renew or extend
thc Line of Credit by sending or dall~ring notice of such renewal
or extension to Undersigned. Such notice shall set forth a new
ldaturity Date for the Line of Credit and any other changes to thc
term~ and conditions of the Line of Credit. Except as specified in
~uch notice, all term~ conditions and provisions of this Note shall
remain uncl~n~C Und6~'~;] ~larther a~e8 that Uedel~igned
will be deemed to have accepted such renewal or e~teasion if
Undersigned (a) bormv~ mnnay under thc Line of Credit after the
Maturity Date that was in eliot prior to such renewal or extension,
(b) makes any payments duc under the Line of Credit after the
Maturity Date tbat was in effect prior to such renewal or extension
(other than payment in full of 811 indebtedne~ due under the Line
of Credit), or (e) othetwi~ fails to noti~ Bank in writing that
Undersigned dedin~ or rejec~ ~uch renewal or extension within
thirty (30) days after Bank sends or delivers notice of .renewal or
extension.
Undersigned shall pay Ban~ concurrently with the execution and
origination fee of $ U. go, which includes the ru3t
year's annual ~ fee for the Line of Credit and a fee to
compe~n~e Bank for its underwriting, origination and
admini.,tcatinn of the Lille of CrediL The ori~natinn fee shall be
deemed fully earned by Bank on the date hereof. In addition,
Undersi~l will pay Bank an annual serdcing fee of
$ 3.00.00 , payable in advance, on or after each
anniversary of the date hereof, to comPenSate Bank for its servicing
and edmini~ffatinn Of the Line of Credit. The fe~ de~ribed in th~
.f~. co~ts or ~ which may be due and pnyabte hereunder.
Unle~ Undersigned has autho~xl Bank to take payments out of
a Mellon Cl~king Aocount, as set rot'th below, Undemigned will
m~# or dalh~ to Bank the nmnnnt billed by Bank each month.
U~ will mail or ~ ~e payments so t~t Bank
~ all payments no le~- thnn the dun datea ~hown on the bills.
I]~~' ~ Unda~ned authorizas Bank to take all
' ~l~.m~'..nts of principal and~' inte~ ~l/or other amoun~ due
~ ti~ Note out qf_~ndar~igned's Mellon Cheddng Account
on or~ aft~ the due date each month Underalgned ~ keep a
st~metont balance in this account to co~r the full amounts of idl
raquired paymeats. At its 0ptio~ Bank may [nrminnto
Und~i_~n~d's ability to use this sen~. This authorization shall
remain in;nffast until re~3ked by Unda~gned in writing or until
~ ~ of Cr~t is paid in full and tel"rninm~d Of un~l ~ b~
t~tnnt~ Undessigned's nt~ty to use this service, as the case may
be. Prior to maturity, while this authorization is in effect and provided
that Undersigned keeps a suffk/ent balance in this a~count to cover the '
full amonn~ of all required payments, the Contraclanl Rate(s) ~ball be
reduced by 0.25% per annum. This authorization will be effechve even
though this Note and the account may be tided in different versinns"~)f
Undarsigned's name.
If the original principal amount of this Note shown above is in excess of
$10,000.00, or if Undersigned is a corporation, interest shall be
calculated on the basis of a 360-day year and actual days elapsed. If thc
original principal amount of this Note shown above is $10,000.00, or
less, and Undersigned is not a corporation, interest shall be calculated
on the basis of a 365-day year or 366-day year, as the case may be, and
actual days elapsed.
*Prime Rate" shall mean the interest rate per annum announced from
time to time by Bank as its Prime Rate. T'ne Prime Rate may be
greater or less than other interest rntas cbarged by Bank to other
borrowers and is not solely based or dapandont upon the interest rate
which Bank may charge any particular borrower or clesa of
If a single certificate of dape~it js held by Bank as collateral security for
thc indebtedness evidenced by this Note, ns more fully described in the
Assignment of Depc~it Account expressly referring to this Note, "CD
Rate" shall mean the interest rate paid by Bank on such certificate of
deposit (the *Certificate"), said CD Rate to be reset by Bank at each
renewal of the Certificate. Xf more than one certificate of deposit is held
by Bank as collateral security for thc indabtedness evidenced by this
Note, as more fully described in the Asalgnmnnt(s) of Depe~ft c:tpressly
referring to this Note, "CD Rate" shall mean the highest of the interest
rates paid by Bank on such certificates of depasit (thc "Certificates"),
said CD Rate to be reset at each renewal of each Certificate.
Lats Charge. If any payment (other than the final payraent) is not
paid within 15 calendar days after it is due, Undar~ed will pay a late
charge of the greater of $25.00, or three perceflt (3%) of the unpaid
purtinn of the scheduled payr~nt due (re~ardie~m of v/aether the
paymnnt due consists of principal and interest, princll:ml only or interest
only). If the final payment is not paid within 15 calendar days after it is
due, Undersigned will pay a kite charge of the greater of $25.00, or
three percent (3%) of an amount equal to the unpaid pe~inn of a
hypothetical payraent calculated in aceordaace with the rel:~nt
schedule describad above as though such paint ~ not the final
l:~ant (regardless of whether the final payrannt coo~sts of psinclpai
and interest, principal only or interest only). Such late chargn shall be in
· addition to any increase mndc to the Contractual Rate(s) applicable to
the outstanding balance hereof as a result of toaturity of this Note or
otherwise, as well as in addition to any other applicable fec~, charges
and costs.
Det~utt~ats(a); post. MutorltF/:~ts(~). Upon the occurrence of any
Evnnt of Default (as defined in this Note), at Bank's option, intereat
shall ncerue nta rate equal to tw~ percent (2%) per nnnum above the
Contractual Rate(s) until the earlier of the date that such Event of
Default has been cured or until nnd including the date of maturity
hereof.
After maturity, whether by acceleration or othel~le, intereat shall
accrue at a rate two percent (2%) par annum abow the Contractual
Rate(s) until all sum~ due hereunder are paid. Interext shall enntinue to
accrue after the entry of judamem Coy con_~ or othe. twise) at the
Contractual Rate(s) until aH sums due hereunder nnd/or under the
judgment are paid, except that after maturity or, at Bank's option,
upon the eccorrnnce of any Event of Default, interest ~. accrue at a
rate equal to two percent (2%) per annum abov~ the Contractual
Rate(s).
of manifest error, to accurately evidence nt all times all amounts
outstanding under this Note and the date and amount of each advance
and payment nmda pursuant hereto.
'i~ prompt and faithful performance of all_~ Undersigned's
obligations hcreonder, including without limitation time of payment,
is of the essence of this Note.
aacdriirlntere~t, aetoffandA~aignments. To secure ail amoun~ at
~W fi~ ~g ~ ~e under t~ Note and Unde~gn~'s
'ob~fi~ h~under, ~ ~11 ~ to ~re all ~ and ~
incu~ ~ ~ M the ~ll~ion or enfor~ment of th~ Note or the
p~ of a~ ~teml ~Hng th~ Note (in~uding ~thout
li~m~n ~l a~ mdc ~ ~ for ~, I~, imuran~,
~g f~, a~ ~ m or ~ntenan~ of ~id ~l~te~l),
Undeni~ ~ ~n~ to Bank a ~cufiF Mter~t in, lien u~n,
and fi~t of ~toff a~i~, all de~it a~un~, ~i~, ~cufiti~,
m~ or tuber ~ of Unde~i~ ~i~ m~ at any time ~
in t~ ~ of, dal~ to, ~ ~ ~ Bank, including any
~ or ~tum~ ~ un~m~ ~imu~ of i~oran~, and ~e
~ of all ~ fo~ing ~. Other ~o~, r~l or
~1, ~ ~ ~ Nme, ~ ~t ~h in o~er d~umen~ and
a~men~
Undersigned acknowledges and agrees that Undersigned shall renew,
or cause to be renmved, the Ccnificate,(s), if any, until the
iedchtedna~a evidenced by this Note has been paid in full.
Undersigned further agrees that Undersigned will execute, or will
cause to be executed, upon demand by Bank any financing
statements or other documents, including, without limitation,
additional Assigumcots of Depeait Aceount, which Bank may deem
nacess~ or desirable to evidence, perfact or maintain perfection of
the sccority interests created in the Certificate(s) and any renewals,
replacements and substitutions thereof.
Additional Terns and Conditions
1. C. omnm~. Undersigned covenants and agrees thai until all
indebtedness evidenced hereby has been paid in full and until
Uodcrsignad*s ability to borrow hereunder has terminated,
Undersigned shall: (a) maintain at all times a positive tangible net
worth; Co) (1) have all Environmental Permits necessary for thc
coudua of each of Undersigned*s businesses and operations, (2)
conduct each of Undersigned's businesses and operations in material
compilanee with all applicable Environmental Laws and
Environmental Permits, (3) not permit to exist any event or condition
that requires or is likely to require Undersigned under any
Enviroomental Law to Inly or expend funds by way of fines,
judgments, damages, cleanup, remediation or the like in an aggregate
amount, the payment of winch could reasonably be expected to
int~ substandafly with normal operations of Undersigned or
materially edversely affect the financial condition of Undersigned, (4)
notif~ Bank tnumptly upon becoming aware of any pending or
~tanad p _~___in~ suit, investigation, allegation or inquiry
regarding any allegad event or condition that, if resdived unfavorably
to Undersigned or ally of Undersigned*s subsidiaries or affiliates, is
likely to cause Undersigned or any of its subsidiarias or affiliates
under any F. nv~tal /.aw to gay or capend funds by way of
finns, judgments, damagas, cleaning, rcmediation or thc like, ned (5)
pro,dc at Undel~igned*s cent, upon request by Bank, certifications,
dnaumnatatino, coplas of pleadings and other infonnatinn regarding
the above, all in fofl~ nad cootant satisfactory to Bank; (c) conduct
each of Undersignad's hasinc~as and operations in material
compI~ with aD federal, state or local laws, statutes, regulations,
cules, ordi~ court or administrative orders or decrees, or
privat¢ agreements or interpretations, now or hereafter in cxistenee,
directly or indirectly relating to or affecting Undersigned's businesses
or operations; (d) use the pro~ of the Line of Credit evidenced
harcby only roi' bns~ porlX~e(s) specified to Bank at or prior to
tbe~ eZccUtion ~ (c) promptly notify Bank in writing of any
change in Unde~lgaed's residence or Chief Execotivc Office; (f)
po~ and malnmin policias of insurance (including flood
insiii'aii~) to pro.ct against such risks and casualties, and in such
~nt~; ns shnn be required by Bank and/or applicable law, which
0) be in aed subs ce sat ctory to (2) nt
Bank's option, designate Ba ~m Ires payee and/or as additional insured,
and/or contain a lender's loss payable endorsement, and (3).be (or
certificates evidencing same shall be) deposited with Bank; (g) (1)
maintain and keep proper records and books of account in conformance
with gancrally accapted accounting principles applied on a consistent
basis in which full, truc and correct antries shall be made of ail
Undcrsigaed's dealings and bnsiness affairs, (2) provide, to Bank at
Undersigned's cost, upon Bank's request, financial or other information,
documentation or certifications (including without limitation annual and
periodic balance sheets and income statements, personal, financla
statements, federal income mx returns, invanto~ repo~s (including a
description of raw materials, finished goods and the aging thereof, as
applicable), and accounts receivable and payable aging reports), all in
form and content satisfactory to Bask, and (3) permit, upon request by
Bank, any of thc officers, employees or representatives of Bank to visit
and inspect any of Undersigned's properties and locations and to
examine its books and records and discuss the affairs, finances and
accounts of Undersigned with representatives thereof, as often as Bank
may requast; (h) provide additional colinteml at such times and having
such value as Bank may requast, if Bank shall bare reasonable grounds
for believing that the value of the collateral securing the indebtedness
evidenced by this Note has become irmufficient to secure said
indebtedness; (i) pay, upon demand by Bank; (1) all costs and fees
pertaining to the filing of any financing, continuation or termination
statements, mortgages, satisfaction pieces, judgments and any other type
of document which Bank deems necessary or desirable to be filed with
regard to security interests which secure the indebtedness evidenced
hereby, regardless of whether such security interests were granted by
Undersigned, and (2) all costs and expenses incorred by Bank in
connection with any collateral securing this Note (including without
limitation ali advances made .by Bank for taxes, levies, insurance, repairs
to or maintenance of said collateral, appraisal or valuation of said.
collateral, and determinatinn of flood hazard), regardiess of whether
such collateral is owned by Undersigued; and Ii) pay, upon demand by
Bank, all amounts incurred by Bank in connection with any action or
proceeding taken or commenced by Bank to enforce or collect this Note,
including attorney's fees equal to the lesser of (1) 20% of the
outstanding princ/pal balance and interest then due hereunder or
$500.00, whichever is greater, or (2) the maximum amount permitted by
law,pins attorney's costs and all costs of egal proceedings.
2. Events of Default The occurrence of any of the following shall
constitute an "Event of Default' hereunder. (a) defuult in payment or
performance of any of the indebtednass or obligations evidenced by this
Note or any other evidence of liability of Undersigned to Bank; (b) the
breach by any Obligor (defined as Undersigned and each surety or
guarantor or any of Undersigaed's liabilities to Bank as.w~li as any
person or entity granting Bank a security interest in property to secure
any indebtedness evidenced hereby) of any covenant coritained in this
Note or in any separate security, guarantee or suretyship agreement
between Bank and any Obligor, the occurrence of any default hereunder
or under the terms of any such agreement, or the discovery by Bank of
any false or misleading representation made by any Obligor herein or in
any such agreement or in any other information submitted to Bank by
any Obligor;, (c) with respect to any Obligoc. (1) death or incapacity of
any individual or general partner, or (2) dissolution of any partnership or
corporation; (d) any assignment for the benefit of creditors by any
Obligor; (e) insolvency of any Obligor, (ti the filing or commencement
of any petition, act/on, case or ix, x~e___-,4An~ v~untary or involuntary,
under any state or federal law regarding bankruptcy, insolvency,
reorganization, receivership or dissolution, incinding the Bankruptcy
Reform Act of 1978, as amended, by or against any Obligor, (g) default
under the terms of any lease of or mortgage da the premises where real
or personal property securing the indebtednass evidenced by this Note is
19cated; (h) the garnishment, tax assessment, attachment or taking by
governmental authority or other creditor of any property of any Obligor
which is in Bank's posse~ion or which constitutes security for any
indebtedness evidenced hereby;, (i) entry of jedgmont against any
Obligor in any court of record; (j) the ~*--~'-*-~ncot against any Obligor by
the Internal Revenue Service or any other federal, state or local taxing
Page 3 of 6
authority of uopaid taxes, or the issuance of a levy or the
entering of a lien in connection thet~th; (k) change in control
of or transfer of any interest in any ObDgor (other than an
Obligor who is an individual); 0) a determination by Bank,
which determination shall be condusi~ if mede in good faith,
that a meterinl adverse change has occurred in thc financial or
business condition of any Oblignr-, (m) thc maturity of any Dfc
insurance poli~ held as collateral for thc indebtedness
evidenced by this Note by reason of the death of the insured or
otheinvise; (n) the revocation, tcrminatinn, cancellation, denial
of Debility, or. the attempt of any of the foregoing, by any
Obligor of any obligation or liability whatsoever of thc Obligor
to Bank, including without limitation any security, gnarantce or
suretyship agrnemcot; or (o) default by Undersigned in the
payment of any indebtedncas of Undersigned or in thc
perfortonnce of any of Undersigaod's obligations (other than
indebtedness or obligations evidonced by this Note or any otber
evidence of liability Of UndersJgl~ to Bank) and such default
shaft continue for more than any applicable grace period.
3. Acceleta~on; ,qernedles. Upon the occurrence of any Event of
Default: (a) at its option, Ba~ ~ immediately and without
notice temporarily stop allowing thc borrowing of money, or
close Undersignod's Line of Credit and permanently stop
aflowing thc borrowing of money;, (b) all amounts duc under
this Note, including thc unpaid balance of principal and interest
hereof, shall become immediately due and payable at thc option
of Bank, without any demand or notice whatsoever;, and (c)
Bank tony imsaadiately and without demand exerdse any of its
rigl3ts and r~medies ~'antad he~n, under applicable law, or
which it mny othet~ have, against Undersigned or othct~.
Notwithstanding any g~zwisfon to thc contrap/contained herein,
upon the ocean~flce of an l~vent of Default ns described in
Sccti~l 2(0 heraof, ali amounts duc under this Note, including
without limltatiOO thc unpaid, balance of prine/pel and interest
hereof, shall become iron--rely due and payable without any
demand, notice or further antion by Bank whatsoever, and an
action therefor shall iramcdiately a~cru¢.
4. Bank's R///hts. Unders/gned hereby authorizes Bank, and
Bank shall have the continuing right, at its anlc option and
diacretion, to: (a) do anything which Undersigned is required
but fails to do, and in particular Bank nmy, if Undersigned fails
m do an, obtain and pay any prcminms payable on any policy of
insurance required to be obtained or maintained hereunder;, (b)
direct any insurer to mel~c payment of any insurance proceads,
indudin8 any returned or unearned i:n~miums, directly to Bank,
and apl~y such moneys to any indebtedness or other amount
(c) pay the prce~ds of the Linc of Credit evidenced by this
to such other person(a) as any of the Unders/gned tony direct;
and-(d) add any amounts paid or incurred by Bank under
Section l(i), Section l(j) Or Section 4(a)'to the princigal
* amount of the indebtedness evidenced by this Note.
: ~A~.~m,;~.**;;on~oBom~,. Undemignad bercby represents,
(a) If Undersignad is a ,~oratiou, that the perann(a) signing
below :hold(s) the often(s) indicated below (and continue to
. contrm'y in writin~ from Undersigned), and that the Board of'
' Directa~ of Und~ has adoptod resdiutions providing
~'~* that: (1) thc person(a) executing and delivering this Note on '
· behalf Of Undemgned is/ere, an~ 0) *to incur
sale disc~ deem desirable, (ii) to make, c~ecotc and deriver
promissory ~ letter of credit agreements, security
agreements, assignments, mortgages and ali other documents
' ~l[~' -,' '
. ~ '.
required by Bank in conncction with thc incurring of indebtedncas or
obligations, and (iii) to assign and pledga as collateral security for any
such indebtedness or obligations, now or bereafter ex/sting any res1
or personal property of Undersigned; (2) thc actions of any one or
more officers of Undersigned in borrowing money from Bank
heretofore for the nccount of Undersigned, in assigning or pledging
any of Undersigned's property for the payment thereof, or in doing
any other act in connection therewith are hereby ratif~d, co~lfirmed
· and approved; and (3) said resolutions shall ha~ the force Of a
continuing agreement with Bank, and shad be 'binding upon
Undersigned until a resolution amending them shall have been duly
and legally adopted and Bank furnished a certified copy thereof. '
(b) It' Undersigned is a partnership, that (1) Undersi~'s name
shown below is a trade name of Undcrsigned's firm used in thc
.c~.duct of an unincorporated business owned entirely by the persons
slgmng this Note on behalf of said partnership;, (2) the partners
executing and delivering this Note arc authorized (i) to incur
indebtedneas and obligations on behalf of Undersigned by borrowing
from or making other financing or credit accomnsodations with Bank
from time to tinle, upon such terms and conditions as they in their
sole discretion deem desirable, (ii) to make, execute, and'~deliver
promissory, notns, latter of credit agreements, security agreements,
asstgnments, mortgages and ail other documents required by Bank in
connection with the incurring of indebtadneas or obligations, and (iii)
to assign and pledge as collateral security for any such indebtadness or
obDgatinns, now or hereafter existing, any real or parental ixx~rty of
Undersigned; (3) thc actions of any one or mot*e partners of
Undersigned in borrowing money from Bank heretofore for the
account of Undersigned, in 'assigning or pledgfag any of
Undersigned's property for thc paymont thereof, or in doing any
other act in connection therewith are hereby ratified, confirmed, and
approved; (4) notwithstanding any modification or termin~tknl of the
power of any of thc partners to represent said firm, whether by
expiration of thc partnership agreement, by death or ret~ent of
any partner, or the acee~ of one or nsore new partners, or
othel~vise, and notwithstanding any other notice thereof Bank way
receive th/s authority shall continne to be binding upon each of the
Undersigned individually and upon their death or retirensont of any
partner, or the acceasion of one or more new partners, or otherwise,
and notwithstanding any other notice thereof Batik rany reeeive, this
authority shall continne to be binding upon each of the Undersigned
indiv/dually and upon thbir legal repreaentatives, and upon
Undersigned and its suceesanrs, until Bank has ~ notice in
writing to the contratT signed by one of the Unders/~ned or by
Undersigned's duly authorized agent (Receipt of such notice will not
relieve any partner of any Ilabifity arising fcons obl~ations incurred
prior to Bank's receipt of such notice.), and (5) nothfa8 herein shall
be construed to Dmit the rights F, raotod to n pertner by inw or by the
partnersblp agreement, but aD rights 8ranted bere/n 9hall be in
addition to such rights.
6. Detini#on$; Mi,"o*llanena$ Pn~/siona.(a) Undersigned waives (--~--pt
where requested hereby) notice of actio~ ta~ by Batik; and hereby
ratify., and confirms whatever Bank ~ do. Bank shall be entitled to
exercase any right notwithstandin8 any prior ca~el~aen failure to
exercise or delay in exercising any such right. (b) Bank atmli retain the
lion of any jadgntant entered on account Of the indebtadncas
evidenced hereby. Undersigned warrants that Unders/~ ~ no
dofonse whatsonver to any action or ~ that way be h'ought
to enforce or realize on any such judgment. (¢) If any p~ hereof
Thc descriptive headin? of tbls NOt~ are for/x~ve, nte~lce Ol~
provision herco~ (d) The rights and privtfagn, Of Bank comalnad in
~ Note shall inure to the benefit of its anceeseom and nsaigm, and
the duties of Und~ad. Sh~ bind an ~
r~ta*e~ntatives, suc~'~s and asaigm. (e) This Note ~n fa aD
respects be governed by thc laws oL~the ~,ste in ~ this Note is
ptffable (except to the extent that federal law governs).
' Undersigned hereby irrevocably appoints Bank. each holder
hereof ns Undersigned's attorney-in-fact to endorse
Undersigned's name to any draft or check which may he payable
to Undersigned in order to collect the proceeds of any insurance
or any returned or unearned premiums in respect of any policies
· of insurance required to he maintained hereunder. Undersigned
hereby acknowiedgns that this appointment of Bank and each
holder hereof ns atwmey-in-fact is irrevocable and ia coupled
with an interest. (.g) Undersigned assigns to Bank all mone~
which may become payable on any policy of insurance required
to he maintained under this Note, including any returned or
unearned premiums. (h) "Environmeoml Law" means any
federal, at,ate or local environmental law, statute, regulation, rule,
ordinance, court or administrative order or decree, or private
- agreement or interpretation, now or hereafter in existence,
relating to the manufacture, distribution, labeling, use, handling,
collection, storage, treatment, disposal or otherwise of
Hazardous Substances, or in any way relating to pollution or
protectkm of the environment or public health. (i)
"Environmental Permit' means any federal, state or local permit,
license or authorization i.*zued under or in connection with any
Environmental Law. (j) "Hazardous Subetances" means
patr~eum nad petroleum products, radioactive materials,
nsbeatna, radon, lead containing materials, sewage or any
materials or substances defined aa or included in the definition of
"hnTnrdous wastes," "hazardous su~tances," "hazardous
materiais," 'tcofic sul~tance~," "hazardous air pollutants," "toxic
pollutant.%" "pollution," or terms of similar meaning, ns those
terms are used in any Environmental Law. 0t) "Chief Executive
Office" means the place from which the main part of the busine~
Ql~eratiom of an entity is managed. 0) "Undersigned" refen
individually and collectively to all makers of this Note, including,
in the case of any partn¢._.Ap, all general partners of such
partnership individually and collectively, whether or not such ·
partners sign below. Undersigned shall each he jointly and
severally bound by the terms hereof, and, with respect to any
partnership executing this Note, each general imrmer shall be
bound hereby both in such general partner's individual and
partnership capadhes.
7. Affidavit of Business Loan. Obis Affidavit is not applicable if
Undersigned is a corporation.) Undersigned, being duly
authorized, depose(s) and say(s) under penalty of perjury that
Undersigned:
(a) Is/Are engaged in business ns[~] Owner(s), [] General
Parmer(s) off (name and nature of business)
STEPHEN S. BENTON
REHABILITATION OF INVESTMENT PROPERTIES
(b) Hereby make(s) application to Bank for a loan, the Proceed~
of which will he utilized for the purpose(s) of
GENERAL BUSINESS WORKING CAPITAL
(c) Exercise(s) actual control over thc managerial decisions of
the business.
(Remainder of page intentionally left blank)
Page 5 of 6
8. Con,sion of Judgment. UNDERSIGNED HEREBY
EMPOWERS THE PROTHONOTARY OR ANY
ATTORNEY OF ANY COURT OF RECORD TO ApPEAR
FOR UNDERSIGNED AND TO CONFESS JUDGMENT
AS OFiP_.N AS NECESSARY AGAINST UNDERSIGNED
IN FAVOR OF THE HOLDER HEREOF, REGARDLESS
OF WHETHER ANy EVENT OF DEFAULT HAS
OCCURRED, AT ANY ~ AND AS OF ANY TERM,
FOR THE OUTSTANDING PRINCIPAL BALANCE
HEREOF PLUS INTEREST DUE UNDER THE
HEREOF AND ALL OTHER AMOUNTS DUE
HEREUNDER, TOGETHER wrrH COSTS OF LEGAL
PROCEEDINGS AND AN ATTORNEY'S COMMISSION.
EQUAL TO THE LESSER OF (A) 20% OF THE
OUTSTANDING PRINCIPAL BALANCE AND
INTEREST THEN DUE HEREUNDER OR $500.00~
WHICHEVER IS GREATER, OR (B) THE MAXIMUM
AMOUNT PERMi i IUD BY LAW, WITH R~I~4SE oF
ALL ERRORS. UNDERSIGNED WAIVES ALL LAWS
EXEMPTING REAL OR PERSONAL PROPERTY
FROM EXECUTION.
By signi~.this Note, Undersigned agrees to all terms of this Note and swears, under penalty of perjury (as set forth in
18 Pa.C.S.~ 4~4, if governed by PennsYl~ahla law), to the Affidavit of Business Loan (if completed) set forth in Section
7 of this Note. - ·
Witness ~he due execution hereof under ~eai.
Individual:
320 CENTER DRIVE
MILTON, PA 17847
(Seal)
Mellon Bank (DE) Natkmal
~ 1~,.0o,~3 LC~ 9~96 LD 9~
02q$ p 199.66-~ . 2 cl4~(Ot)
Pag~6of6
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA:
: SS.
COUNTY OF LUZERNE :
I, Joseph E. Sweeney, being duly sworn according to law, depose and say that I am an
Assistant Vice President of Citizens Bank of Pennsylvania. I am duly authorized to make this
affidavit on its behalf. The following is true and correct to the best of my knowledge or
information and belief. On March 22, 2002, the amount owed to Mellon Bank, N.A., now by
assignment, Citizens Bank of Pennsylvania, pursuant to the Note, was as follows:
2.
3.
4.
Sworn to and subscribed
bef~r?
me this/ff''°7 day of
_///~¢~ ,2002.
Principal balance on Note ................... $ 91,332.90
Interest to 03/22/02 ......................... $ 922.42
Late Fees ................................. $ 103.66
Attorneys' Fees (20%) ....................... $ 18,471.99
TOTAL .............. $110,831.97
plus interest and costs until paid.
/
~ween<~stant Vice, President
~&ary Public '
492685.1
NOTARIAL SF. AL
DEB09.AH A. HOUSENIClC Notary Public
Wilkes-Barre, Luzerne County
My comm~lon Expires Oct..q, 2005
EXHIBIT "B"
CERTIFICATION OF COMMERCIAL TRANSACTION
I, Joseph E. Sweeney, Assistant Vice President of Citizens Bank of Pennsylvania, depose
and say, subject to the penalties of 18 Pa. C.S. §4904 relating to unswom falsification to
authorities, that the underlying transaction relative to this complaint in confession of judgment is
a commercial transaction to the best of my knowledge or information and belief.
eeney, ~r~sistm~t Vi~ President
492690.1
AFFIDAVIT OF LAST KNOWN ADDRESS
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF LUZERNE
SS.
I, Joseph E. Sweeney, Assistant Vice President of Citizens Bank of Pennsylvania, being duly
sworn according to law, depose and say that the last known address of the defendants is as follows:
Sworn to and subscribed before me
this /~dayof ~ ,2002.
Stephen S. Benion
a/k/a Steven Benion
4401 Packard Lane
Camp Hill, PA 17011-1920
t./~-~weeney,/(ssista~t'Vi~e President
~ary Pub~lic - '
/ w~l~es-Ban-e, Luzerne County
492689.1
VERIFICATION
I, Joseph E. Sweeney, hereby certify that I am an Assistant Vice President of Citizens
Bank of Pennsylvania. I have the authority to make this verification on its behalf. The facts set
forth in the foregoing confession of judgment and complaint in confession of judgment are tree
and correct to the best of my knowledge or information and belief. I understand that this
statement is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unswom falsification
to authorities.
Jos~weeney t/
A si~(nt Vice President
492838.1
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T. SHOEMAKER, ESQUIRE
IDENTIFICATION NO. 63871
LAW OFFICES
SUITE SEVEN HUNDRED
CITIZENS BANK CENTER
WILKES-BARRE, PA 18701-1867
(570) 825-9401
A3-FORNEY FOR PLAINTIFF
MELLON BANK, N.A., now by assignment,:
CITIZENS BANK OF PENNSYLVANIA :
8 West Market Street
Wilkes-Barre, PA 18711-0101
Plaintiff
VS.
STEPHEN S. BENION a/k/a
STEVE BENION
4401 Packard Lane
Camp Hill, PA 17011-1920,
Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION -- LAW
IN CONFESSION OF JUDGMENT
~TO this~'~h(~Q/
495273.1 [ ROSEMARIE McCOY, NOTARY PUSL{C
I WILKES-BARRE, LUZERNE COUNTY PA
I MY COMMISSION EXPIRES MAR, 5, 2005
James T. Shoemaker, Esquire
Attorney for Plaintiff
AFFIDAVIT OF RETURN OF SERVICE BY MAH,
On April 23, 2002, I mailed the requisite 2958.1 Notice via certified mail, return receipt requested,
and regular mail to Defendant, Stephen S. Benion a/k/a Steve Benion. The Defendant signed the return
receipt upon delivery and the receipts, attached here as Exhibit "A," were returned by the post office on April
24, 2002.
I make these statements pursuant to 18 PA. Cons. Stat. §4904 relating to unsworn falsification to
authorities and understand that false statements may subject me to criminal penalties under that statute.
NO. 02-1918 Civil Term
rlAgent
0 Ex~M~
ri Indued Mall
4. R..a~.~.d Deave~ iSdm r--~) E]Ye.
102595,.00-M~2
PS Form 3811, July 1999
Domestic Retum Receipt
2
i