HomeMy WebLinkAbout06-5396
LAW OFFICES OF
MICHAEL F.J. ROMANO
Identification No. 52268
52 Newton Avenue, P.O. Box 456
Woodbury, NJ 08096
(856) 384-1515
Attorney for Plaintiff, ORIX Financial Services, Inc. f/k/a ORIX Credit Alliance, Inc.
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ORIX FINANCIAL SERVICES, INe. f/kla
ORIX CREDIT ALLIANCE, INC.
600 Townpark Lane
Kennesaw, GA 30144
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
TERM, 2006
Plaintiff
v.
CIVIL ACTION - LAW
NO.: d- -S39b CloL [-~
ELWOOD J. YOHE, II
135 Southside Drive
Newville, P A 17241
Defendant
CONFESSION OF JUDGMENT WHERE
ACTION COMMENCED BY COMPLAINT
Pursuant to the authority contained in the warrant of attorney, the original or a copy of
favor of the plaintiff and against the defendant Elwood J.
ant and confess judgment in
which is attached to the Complaint filed in this action, I appear for th
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'.
LAW OFFICES OF
MICHAEL F.J. ROMANO
Identification No. 52268
52 Newton Avenue, P.O. Box 456
Woodbury, NJ 08096
(856) 384-1515
Attorney for Plaintiff, ORIX Financial Services, Inc. f/k1a ORIX Credit Alliance, Inc.
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ORlX FINANCIAL SERVICES, INe. f/kla
ORlX CREDIT ALLIANCE, INe.
600 Townpark Lane
Kennesaw, GA 30144
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
TERM, 2006
CIVIL ACTION - LAW
EL WOOD J. YOHE, II
135 Southside Drive
Newville, PA 17241
NO.: 0/- -~.l9f,:,
Ciu~L I~
v.
Defendant
COMPLAINT FOR CONFESSION OF JUDGMENT
COUNT I
1. Plaintiff, ORlX Financial Services, Inc. f/kla ORlX Credit Alliance, Inc.
("ORlX"), is a New York corporation with its principal place of business at 600 Town Park Lane,
Kennesaw, GA 30144.
2. Defendant, Elwood J. Yohe, II ("Yohe") is an adult individual residing at and/or
conducting business at 135 Southside Drive, Newville, Pennsylvania 17241.
3. On or about August 12, 1999, Y ohe entered into a Conditional Sale Contract
Note (the "Note") with Gulick Truck Parts and Service, Inc. pursuant to which it purchased one (1) 1996
International Conventional Road Tractor, SN# 2HSFHASR 1 TC051 029 (hereinafter referred to as the
"Road Tractor"). A true copy of the Note is annexed hereto as Exhibit "A" and the terms of same are
incorporated herein by this reference.
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4. The Note was assigned to ORIX. A true copy of the Assignment is annexed
hereto as Exhibit "B".
5. The Road Tractor described above was delivered to the debtor. A true copy of
the DeliverylInstallation Certificate, Waiver and Agreement is annexed hereto as Exhibit "C".
6. Pursuant to Note, Y ohe granted to ORIX a security interest in the Road Tractor
as well as in any and all documents, instruments, chattel paper, goods, general intangibles, inventory,
machinery, contract rights, equipment, fixtures, accounts, and insurance in which debtor now or hereafter
has any right or interest (the "Additional Collateral #1").
7. ORIX perfected its security interest the Road Tractor by notation of its lien on
the Certificate of Title. A true copy of the Certificate of Title is annexed hereto as Exhibit "D".
8. Y ohe has defaulted in making payments under the Note and is obligated to ORIX
in the amount of $51 ,862.54 plus continuing late charges, interest, actual attorney's fees and costs.
9. Pursuant to the terms of the Note, upon default, ORIX is also entitled to the
immediate possession of the Road Tractor.
10. In addition, as a result of said default, ORIX repossessed the Road Tractor and
sold same at a Public Sale for the total amount of $7,503 .50.
11. Elwood J. Yohe, II has defaulted in his obligations under the Note, and after
applying the sale proceeds, there is now due and owing to ORIX, the sum of $51,862.54 plus continuing
late charges, actual attorney's fees and costs.
12. The debt involved arises from a business transaction and not from a consumer
transaction.
13. Judgment has not been entered heretofore on the Note in any jurisdiction.
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14. Defendant authorized confession of judgment in the Note.
LAW OFFICES OF
MICHAEL FJ. ANO
Attorney: aintiff
Dated: '1- It( -0 "
Mi J. Romano, Esquire
Identification No. 52268
52 Newton Avenue
P.O. Box 456
Woodbury, NJ 08096
(856) 384-1515
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EXHIBIT "A"
~
ORIX CREDIT ALLlANCE,INC.
'~
TO:
(.s.ner')
CONDITIONAL SALE CONTRACT NOTE
ULlCK TRUCK PARTS AND SERVICE INC. FROM: ELWOOD]. YOHE II
(.Buyer.)
P.O. BOX F 135 S. SIDE DR.
FREMONT INDIANA 46737 NEWVILLE PENNSYLVANIA 17241
(' Add..... of son...., (. Add..... of Buyer')
The undersigned Buyer herehy purchases from Seller the property described helow (the"Prop.rty") as-is, on the following terms and conditions:
Description of Property purchased (including make, year, model
identification, model and serialnnmbers or marks):
ONE (I) USED 1996 INTERNATIONAL CONVENTIONAL ROAD TRACTOR
SN IIZHSFHASRlTCOS1029
.Description of any Trade in:
NONE
(1) CASH SALE PRICE...................................................$
(2) DOWN PAYMENT in Cash........................................ S
(J) DOWN PAYMENT in Goods. (Trade-in A1lowance)........$
(4) UNPAID BALANCE [Items. (1 )-(2)-(J)J......................$
(5) INSURANCE and other Benefiu..................................$
Types of coverage and benefits.................................
(6) TRANSACTJ ON CHARGE.... .............................. ........$
Describe and I temiz!!'......... .....................................
(7) PRINCIPAL UNPAID BALANCE [Items (4)+(5)+(6)J $
(8) FINANCE CHARGE (Time Price Differential).................$
(9) CONTRACT PRICE (Time Balance) [Items (7)+(8)1 $
(10) TIME SALES PRICE [Items (2) + (3) + (9)]....................$
59,950.00
9,000.00
0.00
50,950.00
7,782.00
250.00
58,982.00
16,282.00
75,264.00
84,264.00
"nle Property purchased shall remain penonalty and not become part of any realty 'IUd shall be located and kept for use at:
) 35 S. SIDE DR. NEWVILLE PENNSYLVANIA 17241
(StrMt lIond Numbft) (City) (Connlf) (Stair)
, Huyer, jointly and severally if more thnn one, hereby agrees and promises to pay to the order of Seller or any assignee or endonee (hereinafter collectively called
"Holder") hereof at the office of ORa Credit Alliance. Inc. (a Ne,v York corporation) in O~ngehurg. Ne,.. York or at such olher place as the Holder hereof may from time to
time appoint, the sum of SEVENTY FIVE THOUSAND TWO HUNDRED SIXTY FOUR AND 00/\ 00 Dollan ($ 75, 264 . 00 )
heing the above indicated Contract Price (hereinafter called the "Time Balance") in consecutive monthly installments as follo"s:
48 Installment(s), each In the amount of $ 1,568.00 (hen Installment(s), each in the amount of $
then Installment(s}, each In the amount of $ then installment(s), each In the amount of S
then installment(s), each In the amount of S then installment(s), each In the amount of S
then Installment(s), each In the amount of $ dlen Installment!s), each in the amount of $
then Installment(s), each In the amount of $ then Installment(s). each In the amount of $
then Installment(s), each In the amount of $ then Installment(s), each In the amount of $
then Installment(s}, each in the amount of $ then Installment(s}, each in the amount of $
then lnstallment(s), each In the amount of $ then Installment(s), each in the amount of $
, said consecutive monthly installments shall commence on the 12 day of SEPTEMBER 1999 . ond continue on the same date of each month
thereafter until paid. Any installment not paid on or hefore its due date and, to the e~1ent pennitted by applicable Ia,v, the entire unpaid Time Balance :>fter acceleration shall therearter
hear interest at ante oh{lSth of 1 % per day (the "Past Due Rate") until this contract note is paid in full. In no event shall any late charge or the Past Due Rate exceed any maximum
pennitled by law. If for any reason any interest rate, late charge, fee or other charge imposed or which may be imposed under this contract note exceeds the ma~;mum amount which
may be imposed under applicable law, the amount of such interest rate, late charge, fee or other charge in excess of the ma~;mum shall be ..oid and any such excess collected hy
Holder applied to the reduction this contmet note or. to the extent allowed by applicahle I:l'v. to other obligations of the Buyer at the time o,ving to Holder, as Holder may detennine.
:lIld an)' remaining excess shall be efunded to Buyer. 11le makers, endorsen and all parties to this contract nole her.ny ""aiTe presentment for palment, demand, protest, nolice
of protest amI notice of dishonor he of. Holder may extend the time of payment hereof, postpone the enforcement hereof, granl any other indulgence and add or release any part).
primarily or secondarily liable hereon vithout affeding or diminishing the Holder's right of recourse against the makers, endorsen and all parlies hereto, which right is herehy
expressly reserved.
Injury to or loss or destruction of the Prop ,from whatever cause. shall not release Buyer from payment as provided herein. Buyer ocknowledges that before the execution
of this contmet note Seller quoted to Buyer botli cash price and a time price for tbe Property and offered 10 sell same to Buyer for either of such prices. Buyer agrees: at Bu)'er's
own expense to keep the Property in good order nd repair; not to misuse, abuse or illegally use the Property; to permit Holder to inspect at reasonable times the Property and
Buyer's books and records, to furnish to Holder, upon request. financial information, in form, preparation and content satisfactory 10 Holder; to be responsible for all loss or
dnmage to the PropertJ. from an)' cause whatsoever; to immediatel ' notify Holder of an)' change in BUJ'er's address; not to create or suITer any liens or adverse claims of an}' kind
against the Property, nor pennit any circumstance to exist under wli h Seller and/or Holder may lose its lien on the Property, nor permit nor suffer it to corne into the possession
of ,my other person. nor sell nor remove it nor suffer its removal from t lace of its location shmm ahove without prior 'Tritten consent from Holder; and in no e,'ent pennit the
Property, or any of the other Collateral (as hereinaCter defined), to leave t e 48 contiguous States of the United Stales; not 10 remOTe nor pennit to be removed any equipment or
nccessories nO\' or hereafter placed npon the Property. The Buyer granls to HIder a security interest in the Property and an)' and all documents. instmments, chatlel paper, goods,
. genernl intan~ib'es, inventory, machinery, contrnct rights, equipment, rL,1ures, ccounts, insur<mce and all other property :Jod asset.! or tTery kind :Jind llilture in which Bu)"er now or
hereafter has any right or interest (all of the foregoing. together with all accessort. "tbcllm.nts. r.ploc.ments. suhstitutions and accessions thereto, "here...r located, and aU proceeds,
producLs and rents therefrom collectively called "Collateral") and agrees that said s urit)' inler.st s.cures the p,,)'ment. performance and fulfillment of all obligations of Du)'er to Holder
or any arfiliate of Holder whether such obligntions ore now existing or here3fter leurreet or arising, ~re contingent or non-contingent, are direct or indirect, arise by assig.nment
or othern;se or 3re contemplated or not contemplated as of the date or this cont t note. The Bu:yer agrees to keep the Property insured, at BUJ'er's f!'~pPI1SP, og:linsf 1055 or
dnmage b)' fire, theft, collision and other domage nod destruction, aod such risks as ore oppropriale, in form, coverage aod insurer satisfactory to Holder lor not less than
the unpaid Time Balance, naming Holder as loss payee. such policies to he delivered to Holder. and upon failure to so deliver, Holder shall have the right, hut not the obligation,
tn provide insurance for its interest and charge Buyer Holder's costs for such insumnce, together with its or its designee's customary cbarges or fees associaled with its insurance.
l\uJ'er hereby irrevocably appoints Holder as Buyer's attorney-in-fact to make claim for. receive payment of and O-~eClJte and endorse all docu"lents, checks or drafts received in
payment of loss or damage under any insurance. Duyer(s) hereby assigns to OCAI on)' return and unearned premium and di,-idends due or to become due under such poliCJ'(ies)
and pa)ments due upon claims made under ony policy(ies) of insurance maintained on the Property(s), up to the amount due under tbis contract note. 111e Buyer(s) hereby
"ppoints OCAI as the Duyer(s) ATIORNEY-IN-FACT to cancel ony insurance policy(iesl for ".hich premiums are financed hy OCAI hereunder in the event 01 any defalllt hy
lIu)'er bereunder, If OCAI elects to cancel any such policy(ies), OCAI will send to Ibe Buyer(s) not less Ihan 10 days, 15 da)'s in Pennsylvania. prior written notice of OCAI'S
intent to cancel. 11le Buyer(s) also agrees that OCAI may receive all amounts assigned 10 OCAI and execute and delinr on the Bnyer(s) behalf all doroments relating 10 the
policy(ies) to he cancelled wbich are necessary to carry out the tenns hereof. Any surh amount received will be applied to all outstanding halance! dlle and owing to OCAI
hrreunder, any surplus Iherof to be paid to the Buyer(s) as provided hy law. Buyer acknowledges Ihat no warranties, representations nor ogreemenls not exprO-ssed herein have
heell mnde b)' Holder. Buyer further acknowledges notice of Seller's int.nded assignm.nt/endorsement of Ihis contract note. and npon such assignment/.ndorsement. Duyer
agrees not to assert against any assignee/endorsee hereof any defense, setoff, recoupment, claim or counterclaim ,rhich Bu)'er may assert solely against Seller, whcther arising
" hereunder or othenvise. Huyer shall not assign this contract note without the prior written consenl of Holder.
TERMS AND CONDITIONS HEREOF CONTINUED ON REVERSE SIDE
LIABILITY INSURANCE COVERAGE FOR BODILY INJURY AND PROPERTY DAMAGE
CAUSED TO OTHERS IS NOT INClUDED IN THIS CONTRACT NOTE
NOTICE TO RETAIL BUYER: (() Do not sign this contract note before you read it or if it contains any blank spaces.(Z) You are entitled
to "'n exact copy of the contract note you sign at the time you sign. Keep it to protect your legal rights. (3) You have the right to pay
in advance the full amount due and under certain conditions to obtain a partial refund of the time price differential. No other agreement,
oral or written, express or implied has been mar:le by either party.
BUYER ACKNOWLEDGES RECEIPT OF A SIGNED, TRUE AND EXACT EXECUTED COpy OF THIS CONTRACT NOTE.
Date.:
Augus t 12
1999
B UYER(S)-MAKER(S)
GULICK TRUCK PARTS AND SERVICE INC.
(SEAL)
ELWOOD J. YOHE II
(SEAL)
(SEAL)
(Pdnl N::Imr: or C.Burn--M.h,. Hrn)
By:
"l..__
...
"..' -~
,'.
'--"
'oy/
",J/ TERM.S AND CONDITIONS OF CONDITIONAL SALE CONTRACT NOTE (Continued)
,ld limes h..eunder. provIded Ihat Duyer ha, not heell and is not in default under Ihis contract note or .ny other ohligation to Hold.r, Duyer shall have the right 10 pr.pay ils
,,_A/gntions h.r.under in full hut not in part (Ihe "Prepaymellt Option") upon ntl.astthirt)' (JO) days prior wrilten notice to Hold.r, sp.dfying the proposed dot. for pr.payment, nn
which date the prepayment amount computed helow (the "Prepayment Amonnt") will be p.id in good funds. Except to the extent othe.".ise required by applicahle 10\", the Prep.)'ment
Option is, if requested hy Holder. conditioned upon and availahle to I'u)'er 0111)' if Duyer shall simultaneously wilh the exercise of the Prepayment Option under this contraclnole PO)' or
prepay, os thecas. m.y he, the unpaid amounts IInder any other obligation of Duyer then held hy Holder. The Prepaymeut Amount under this contract note sh.1l be the sum of th. following
as of the prep.yment date sp.dfi.d in the notice: (i) all amounts th.n due and unpaid und.r this controct not.; (ii) the unpaid installments o..er the remaining term of this contract note.
discounled 10 Present Value (as defined helow); and (iii) a pre-payment premium equal to (a) the amount d.t.rmin.d in clause (ii), multipli.d by (b) th. grl':lter of 3% or 1-112%
multiplied hy the numh.r of remaining )'ears (counting a partial year as a whole y.ar for the purposes hereof) IInd.r Ihe term of this contr-.1ct not.; provided that, ill no event shall the
Prepaym.nt Amount .xce.d on amollnt ,,'hich would cUllse Holder to b.d..",.d 10 have conlract.d for. charg.d orr.ceived any amount in .xcess olthehighestla,vCul rale. "Present Value",
as us.d h.r.in, mean! the present (to the specifi.d dote of prepaym.nt) worth of the remaining installmen'ts discounled on an aduarial hasis (computed for the actual da)'s e1aps.d in
a yeor consisting nf twelve (12) thirty (30) day months) at the r:lt. of return implicit over the originall.rm of this contr-.1ct not. (i.... determined b:lsed upon the numb.r, liming .nd
amount of the parments calculat.d ",ith respect to the original Principal Un paid Dalanc. of this contrad nole which will be d..m.d 10 have been invest.d on the date 01 this contract nole),
Tim. is of the essence of this contract note. If Duyer f:lils to pay an)' amollnt when du., or defaults in the prompt and faithful performance of any of the terms and conditions h.reof
or any olher agre.m.nt wilh Holder, or h.comes insolv.nt. or changes ils manag.ment. operations, own'f'5hlp of its stock or control, or dissolves, or if bankruptcy, rec.ivef'5hip or an)'
orher insolvency proceeding is instituted by or al:ainst Dnyer, or if Holder shall at any time deem the Prop.rty in danger of misuse, concealment or misappropriation, or if
Hold.r shall de.m itself insecure, th.n Holder may, without notice or demand, all of which are expressly waiv.d, declare the entire unpaid Time Balance h.rennder together
with any unp,lid inter.st, collection amI lat. charges, attorneys' fees and any and all oth.r snms o,ving to Holder (all collectively called lhe "Balanc.") immediately due and
payahle, whereupon the Dalance shall immediately he du. and pa)'ahle, and Duycr "ill immediately deliver possession of the Collateral to Holder ,vho may, wilhout notice or
demand or I.gal proc.ss, to the .xtent perm ill cd hy h,,,,: (I) recover th. Dalance plus, to the extent permill.d hy applicable law, interest on the Balanc. at the Past DlIe Rate until
collect.d,tngether ,vjth. if this contract note is plac.d in the hanels of attorneys for coll.dion, a reasonahle stlm (20% of the Balanc.) as attorn.ys' f.es plus the expens.s of stich
attorney(s), or (1) r'possess the Collateral, which Buycr shall asscmhl. at and deliver to a place designat.d by Holder (Buyer herehy authorizes and empo'..ers Hold.r, or its
designee, to .nter upon any premises where the Collaternlmay he fonnd and take possession nnd carry a",ay same ",ithout process of law) and (A) retain Collateral and all
payments made hereunder, or (B) re!ain all payments and sell Collaterulat puhlic or private sale with the right iu Holder to purchase any Collat.ral at such s~le), applying the
lie! proceeds to all charges and expens.s incurred hy Holder in connection with the r.possession, storage, repair, refurbishing and sale, including attorneys' fees and exp.nses,
then to the Balance plus intere,t at the Past Due Rate thereon, then 10 any other amonnts owing hy Buyer to Holder, and then pay any overplus to Buyer, who shall remnin
liahle for any d.ficiency with interest, to the extent permitted hy applicahle law, at the Past Due Rnte plus r.asonable attorne)'s' fees (which are agreed to be equal to 10% 01 sllch
sUln) and the exp.nses of snch attorneys. or (C) retain the Collateral and all pa)'lIlents lIIade h.r.und.r, credit Dn}'er \lith the then ..easonahle value oHhe Collat.ral and reco"er
from Uu~'er any deficienq' tog.ther with interest at the Past Dne Rate plus said reasonahle nttorneys' fees and the e:o:penses of such attorneys, or (0) pu..sue an)' other rellled~'
pumittcd by law or equity. It is agreed that any amount to he retained hy Holder and the Balance to he paid hy Un)'er under this paragraph shall not be as a penalt)' hnt as
liqnidated damages for the hreach herenf. Th. r.medies prol'ided for her.in may h. exercised, to the .xt.nt permitt.d b)" la",: successively or concnrrently ancl the exercise of
one shall not har the other. Uu)'er and any Gnarantor hereof agree that any puhlic sale ",ill he deemed comm.rcially reasonahle if notice th.r.of is mailed to them at l.ast t.n (0)
rla)'s hefor. such sale and adl'Crtised in at least oue newspaper of gcn.ral circnlatioll ill the area of the sale at least tn;ce prior to the date of sale upon terms of 15% cash down
and the halance within 14 honrs and furtht< agree that any private sale shall he de.m.d commercially reasonahl. if notice thereor is mailed to th.m at l.ast 14 days hefore
(h. sale date sIDted therein and credit given for the price stated. Holder, not heing in the equipmenl business and in light of Buyer's obligntion to maintain equipment, shall
not be reqllired to refurhish, repair lOr otherwise incur expemes ill conn.ctiou with preparing the Collateral for sale but lIIay sell its interest th.r.in on an"as-is", "where-is"
hasis. Notwithstanding all)' termination of this contract nlOte hy expiration or otherwis., Duyer shall r.main liahle for the due p.rfornlance and pa)'ment of all obligatillns
incllrred or arising hereunder, whenever accrning, and HoldH shall h. entilled 10 ellforce all rights and remedies it has h.rellnder after payment of the full Time Balance,
BUYER, SEllER AND ANY HOLDER EACH HEREBY KNOWINGLY, VOLUNTARilY AND INTENTIONAllY WAIVES (A) ANY AND All RIGHT
TO A TRIAL BY JURY OF ANY AND All CLAIMS, DEFENSES, COUNTERCLAIMS, CROSSCLAIMS AND SETOFF OR RECOUPMENT CLAIMS
ARISING EITHER DIRECTLY OR INDIRECTLY OUT Of, UNDER, IN CONNECTION WITH, OR IN ANY WAY RELATED TO THIS CONTRACT NOTE AND
WHETHER BASED IN CONTRACT OR IN TORT OR PURSUANT TO STATUTE AND (B) ANY AND All RIGHT TO CLAIM OR RECOVER ANY
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. Buyer her.h)' irr.voc"hly
authorizes any attorney of any COllrt of r.cord to appenr for and confess Judgm.nt "gainst Buy.r (.xcept in any jurisdiction wh.r. such action is not pennitt.d hy law) for
Ih. Dalance and other monies due to nolder, plus exp.ns.s alld 20% adeled for allorneys' r..s, without stay of execution, and Bu)'.r her.hy waives and r.l.ases r.lief fcom
any and all appraisement, stay or .xemption laws theu in forc. and Inrther waiv.s, with filII knowledge of BlIy.r's rights and the effed of this ,vainr, any rights to a hearing
prior to any retaking of Collateral hy Holder. Du)'er represents and warrants to S.lI.r and any Holder that Duyu h"s paid all applicahle sales. use or other taxes due in
ronn.dion with the sale, purchase, ownership, possession or use of the property and shall indemnify Seller and any Holder rrom and against any loss, cost or expense,
inc!ufliug p.nalti.s, int.rest and other charges of an)' kind in connection with or arising from th. sale, purchase, olVtlership, possession or use of the Propert~'. Hold.r
is herchy authorized to file one or 1lI0r. financing ,statements or a r.prodllction hereof <1S a financing statement. BUYER DOES HEREBY WAIVE, FOREGO AND
AGREE NOT TO ASSERT ANY AND All RIGHTS, CLAIMS AND DEFENSES, IF ANY, UNDER THE FEDERAL EQUAL CREDIT OPPORTUNITY ACT
AND/OR THE FEDERAL FAIR CREDIT REPORTING ACT AND/OR UNDER ANY COMPARABLE STATE lAWS THAT MAY INURE TO THE BENEFIT
Of BUYER IN CONNECTION WITH THIS CONTRACT NOTE. BUYER HEREBY RATIfiES AND APPROVES THE OBTAINING BY SEllER AND/OR
HOLDER OF ANY CREDIT REPORT RElATING TO BUYER AND HEREBY AGREES THAT SEllER AND/OR HOLDER MAY HEREAfTER OBTAIN SUCH
CREDIT REPORTS AS SElLER AND/OR HOLDER IN THEIR SOLE DISCRETION MAY DETERMINE. All security interests shallultach to any proceeds. In its sole
discrelion Holder may apply and/or change applications of any SUIllS paid and/or to he paid hy or fnr Buyer under any agreements, to any obligalions of Buy.r to Holder,
preselltl)' existing or otherwise. Holder may at any time, with or without ex.rcisiug any of the rights or rem.di.s .vailable to it and ,vilhout prior notice or demand
to Buyer, appropriate und apply tnward payment of nny of Buyer's ohligations to Holder any and all balallc,s, sums. property, credits. d.posits. accounts, reserv.s,
collcctions, monies, drafts, notes or ch.cks coming into Hold.r's poss.ssion and helonging or owing to Buy.r alld ror sllch purposes, .ndorse Buyer's name on an)' such
instrllment made pa)'ahle to Oll)'er, for deposit, uegotiation, discount or colledion. Olly.r herehy irrevocably nppoints Seller and/or Holder as th. true and lawful
"\torney-in-fael of Duyer, coupl.d with an iut.rest, with full power in Duyer's name, place and stend to execnte financing statem.nts on Durer's behalf and to do any
amt all other acts on nu)'er's h.half necessary or h.lpful to p.rf.ct Seller's alld/or Holder's s.curity interest in the Collat.ral pUf'5unnt to the Unifonn Comm.rcial Code or
other applicahle la,v. Each person signing this contract 1I0t. warrants full authority to sign this contraclnote.
This contract note contains the entire agre.mellt of the parti.s alld \IIay 1I0t be, modified except in writing. Holder shall not hy acceptance of overdue pa)'mellts or h)'
nn)' act nr omissioll to act he de.m.rlto have waiv.d nny right h.reunder. A waiver on one occ:Jsion shall not op.rate as a ,..ai...r on a ruture occasion. AS PART OF
THE CONSIDERATION fOR SELLER'S ENTERING INTO THIS CONTRACT, BUYER, SEllER, HOLDER AND ANY GUARANTOR HEREBY DESIGNATE
AND APPOINT EDWIN M. BAUM, ESQ. AND C.A CREDIT CORP., BOTH OF NEW YORK, OR EITHER OF THEM, AS THEIR TRUE AND LAWFUl
ATTORNEY-IN-FACT AND AGENT fOR THEM AND IN THEIR NAME, PLACE AND STEAD TO ACCEPT SERVICE OF ANY PROCESS WITHIN THE
STATE OF NEW YORK, THE PARTY CAUSING SUCH PROCESS TO BE SERVED AGREEING TO NOTIFY THE OTHER PARTY(IES) AT THEIR ADDRESS
SHOWN, OR THEIR LAST KNOWN ADDRESS, BY CERTIfIED MAil, WITHIN THREE DAYS OF SUCH SERVICE HAVING BEEN EFFECTED. BUYER,
SEllER, HOLDER AND ANY GUARANTOR HEREOF AGREE TO THE EXCLUSIVE VENUE AND JURISDICTION OF ANY COURT IN THE STATE AND
COUNTY OF NEW YORK fOR ALL ACTIONS, PROCEEDINGS, CLAIMS, COUNTERCLAIMS OR CROSSCLAIMS ARISING DIRECTLY OR INDIREalY
OUT OF, liNDER, IN CONNECTION WITH, OR IN ANY WAY RElATED TO THIS CONTRACT NOTE WHETHER BASED IN CONTRACT OR IN TORT,
OR AT lAW OR IN EQUITY OR PURSUANT TO STATUTE, WITH THE SOLE EXCEPTIONS THAT AN ACTION TO OBTAIN POSSESSION OF AllOR
PART OF THE COLLATERAL MID EQUITABLE PRCCEEDINGS TO ENFORCE THE TERMS OF THIS CONTRACT NOTE, MAY, IN THE SOLE DISCRETION
OF HOLDER, BE BROUGHT IN A STATE OR fEDERAL COURT HAVING JURISDICTiON OVER THE COLLATERAL AND OR THE BUYER, AS THE CASE
MAY BE AND THAT JUDGMENTS MAY BE CONFESSED, ENTERED, OR ENFORCED IN ANY JURISDlalON WHERE THE BUYER, SELLER, OR ANY
GUARANTOR, OR THE COLLATERAL AND/OR ANY OTHER ASSETS OF THE BUYER, SELLER, OR GUARANTOR MAY BE LOCATED. BUYER, SELLER,
HOLDER, AND ANY GUARANTOR HEREOf EACH WAIVE ANY RIGHT THEY OR ANY OF THEM MAY HAVE TO TRANSFER OR CHANGE THE VENUE
OF ANY LITIGATION BROUGHT IN ACCORDANCE HEREWITH. The Seller and Buyer .ach warr::mt and agree that Buyer h:!s not received possession of the
Pro pert)' prior to the date hereof. Intending that each and every prnl'ision of this contract note he fully .ffecth'. according to its t.nns. the parti.s agree that the "alitlity,
I enforc.ahility and errecth'eness of .ach provision hereof a lid the obligations, rights and r.medi.s of Ih. Duyer, Sell.r, Guarantor nnd any Holder in all)' wa)' related to or
arising under this contract note shall he govern.d h)' nnd construed in accordanc. with lhe laws of the Stat. of N.,v York (excluding its choice of law nll.s). If anyone or
more provisions hereof are in connict \lith allY npplicahle statute or law, and thlls 1I0t valid or .nforceahle, then each such prol'ision shall he d..med nllll "lid void, bllt
only to the exlent of such conOict anrl "ilhout illvalid"tillg or affecting the r.maining pro,'isiolls hereof. This contract sball be binding upon the h.irs, administrators, legal
repr's,"tatives and successors of the Duyer.
"
'\
.;."
:~:},;~!CJ.~~~~\:~~'.~~':'c/',~;
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Rider to Conditional Sale Contract Note dated August 12\ 1999
Between the Undersigned
The Seller is Incorporated and Maintains its Principal Place of
Business in the State ofIndiana. The Buyer hereby certifies that;
(i) Buyer has gone into the State of Indiana to select the Property being purchased,
(ii) Buyer executed this Conditional Sale Contract Note in the State of Indiana and
delivered same to Seller in the State of Indiana and
(Hi) Buyer took delivery of the property being purchased in the State of Indiana.
This Conditional Sale Contract Note is being accepted by the Seller in the State of Indiana.
~~
Bllyer:
Elwood J. Yohe II
q~g
By:
.
c'Yc0"d G 1l7<'..SGl761c
S3l~S ~Jn~ XJIln9
S8:l71 5661-c1-9n~
EXHIBIT "B"
..
.\"-:r:"":~:;
. ,....~ ... ,>.
..
r;:+...\f-SY1 '" "-~ - \.
_.<: ASSIGl%IENT
;','.:. ~~~~).o
FOR Y ALUE RECEIVED, the undersigned hereby sells, assigns, and cransfers to ORIX Credit Alliance! Inc, (herein called"OCAt"L its ,siji:s:,e.s.sors and
assigns, the annexed condItional sale concract and/or lease and/or chanel mortgage (herein cailed "concract" dated Augus t 1 Z, 1 'j 'j 'j ,
between GULICK TRUe, PARTS AND SEIWICE INC. ,as Seiler/Le.sso(/Mortgagee/Obilgee,
and ELWOOD 1, VOHE II 1355. SIDE DR. NEWVILLE PENNSYLVANIA '7241
(Name) (Addre1Sl
as Buyer/Lessee/Mortgagor (herein called "Obligor"), mgether with the sums payable thereunder and our securicy imerest in and to any pro percy therein
described ( the "Property"), and all notes, concracts of guarancy or surety, and collateral of any kind or nature which we have pernining thereto, and all
rights, remedies and powers relating therem, with good right in OCAI to coilecc and discharge the same.
We represent, warrant and agree as to said concract: It is a valid obligation arising OUt of a bona fide instailmem sale or lelSe m or mortgage of the Property
of Obligor in the ordinar/ course of business and is the only agreement with respect thereco; it contains or describes the entire agreement and all instruments
made or given in connection with such sale, lease, loan or mortgage; no representations, warranties or inducementS not conuined in the concract have been
made or given; it creates a first securicy interest and/or fim lien upon the PropertY; it and the Propercy are free of any liens, claims. encumbrances, defenses,
offsets or counterclaims, real or claimed; we have remitted to the appropriate taXing authorities ail sales, use or other CJxes applicJble to the cransaction
described in the concracc or have received from the Obligor and delivered to OCAI all appropriate evidence of exemption from such taXes; all data furnished
to OCAI and all statements made and unpaid balances shown in the concract are and will be crue and correct, and the signacures thereon, on any as.signment
and on any concract of guarancy or suret'! applicable to the concract, are the genuine signatures of persons having capacicy to so concract; it is and will be
enforceable against all parties thereto in accordance with its terms; we have complied, and it complies, with all applicable Federal, St.:Ite and Municipal laws,
rules or reguladons haVing the force of law regarding conditional sale concractS, securicy agreements, leases, loans, chattel mortgages J/ld installment paper;
it has been properly and timely filed or recorded; the Property has been delivered, accepted, installed and insured and we will fulfill our obligations to Obligor
with respect to same; and there is still unpaid and owing thereon the sum cotal of the unmatured Inst.:lllmentS stipulated in and evidet1ced by the concract,
We further represent, warrant and agree that OCAI has a vaild and enforceable nm securicy interest and/or first lien on the Propercy and we subordInate to
OCAI all liens and/or encumbrances (St.:ltucory and/or otherwise) which we may acquire and/or mert against the Propercy; that OCAJ may in our name
endorse any notes and/or other obligations given in connection with the contract and all remicrances received; and we give express permission to OCAI to
release, by operation of law or otherwise, and/or to compromise or adjust any and all rights against and grant extensions of time of payment to Obligor or
any other persons obligated on the concract and/or notes, and to substitute debtors, without notice to us and without a((ectlng our obligations hereunder.
The warranties, represenutions and agreementS contained in the molt recent agreement, if any, between us and aCAI applicable to me purchase of paper
(as denned therein), are incorporated herein by reference and are deemed repeated by us co induce OCAJ to accept this assignment. If any of our
represenutions are to become uncrue, we will immediately pay co OCAI the then unpaid balance outsundlng under the conO'act, without requiring OCAI to
proceed against any person or propercy, In consideration of OCAI accepting tilis assignment. we hereby designate and appoint Edwin M. Baum, Esq, and
C-A Credit Corp" each of New York, or either of them as our crue and lawful marney-In-fact and agent for us and in our name, place and stead to accept
service of any process within the State of New York, OCAI agreeing co notify us at our address shown on the concract by cenified mail within three (3) days
of such service having been effected. OCAI may, at any time without prior notice to us, approprl,lCe and apply toward the payment of any of our obligations
co OCAf any and all balances, sums, propercy, credits, accounts, reserves, collections, checks or Instruments belonging or payable co us or in OCAI's
possession and for such purposes endorse our name on any such Inscrument. In the event that OCAI shall grant a refund or credit of all or a portion of the
charges Included in the unpaid time balance of tile contract because of prepayment, In whole or In part, acceleration or otherwise, we will, immediately upon
OCAI's request, pay to OCAI, In good funds, a portion of any monies realized, held for and/or received by us In connection with the holding, owning,
brokerlng, assigning, and/or discounting of the contraCt. The amount payable under the preceding sentence shall be determined by OCAI in accordance
with OCAl's usual procedures and will be such amount as will enable OCAI to receive, with respect to the contract, such rate or rewm as OCAI would have
received had the concract been paid In full in accordance with Irs terms. If we become obligated to OCAI under the terms of this as.signment or under any
other obligation to aCAI, we hereby waive and relinquish unto OCAI any imerest that we may have in the PropertY or other collateral and/or any balances,
sums, pro percy, credits, accountS, reserves, collections, checks or instrumentS that OCAI may be holding for our account, We hereby waive notice of
accept.:lnce hereof, presentment of payment, demand, notice of protest and dishonor, notice of default or non-payment and notices of every kind and nature
with respect to the contract and any notes and/or any other obligations given In connection therewith. Upon our execution here<lf, we shall have no
:- authoricy without OCAl's prior wricren consent to accept collections and/or repossess and/or consent co the return of Propercy and/or modify the terms of
the concract. We agree to the exclusive venue and Jurisdiction of state and federal courts located within the State and Councy of New York for all actions,
proceedings, claims, counterclaims or cross.claims ariSing directly or Indirectly in connection with, oue of, or in any way related to this Assignment or the
concract. We waive any right we may have to crans fer or change the venue of any litigation brought In accordance herewith. We knowlngty, volunt.:lrlly
and intentIonally waive any and all right co a crlal by jury of any and all claims, defenses, counterclaims, cross-claims and set.ofr or recoupment claIms
arising either dlrectiy or indlrectiy in connection with, out of, or In any way related [0 this Assignment or the Concract Note and we further waive any and all
right to claim or recover any punitive or consequential damages or any damages other than or in addition to actual damages,
We represent and warrant that as at the date of the execution hereof (I) we know of nothing which (a) would make the concract less valuable or (b) If
disclosed to OCAI, would adversely affect OCAI's decision to acquire the contract or (c) would have constituted an event of default during the term of this
concracc and (2) the unpaid balance of the concracc as.signed hereby Is S 7S,26~,00
LIMITED RECOURSE: By execution in tile signature block Immediately follOWing this paragraph, we hereby agree that the as.signment hereinabove
provided for shall be WITH LIMITED RECOURSE such that. if the Obligor is in default of the concracc for any reason whatsoever, we wiil pay to you our
Limited Liabilir/ with respect to the concract In accordance with the terms of [he following described agreement which is incorporated herein by reference
and which for the purposes of paragraph 8 of such agreement shall be:
10,00 % of the Concraccual RepurChase Price of such concracc
determined as of date of the payment under paragraph 8,7 of the Agreement.
IN WITNESS WHEREOF, we have ilereunco set our hand and seal this
12th
day of
August
,19~,
Agreemenc dated; September 10,
19 91. between Seller/Lessor/Morcgagee/Obligee and ORIX Credit
AII~ Inc. (Agreement incorporated herein by reference)
GULICK TRUCK PARTS AND SERVICE INC.
(Seal)
By, ~~~'lCb"""
,
(I f corporation, print or cype exact coreor ace fume, have authorized
ofFicer sign, swing ilis title, and mach corporate seal. If partnership,
prine or cype exact firm name and 11Jve one or more partners sign.)
~
(95),MV,LR%
VER 4.10
EXHIBIT "c"
-- . DELIVERY/INSTALLATION CERTIFICATE, WAIVER AND AGREEIHENT
~ '13SS.SIDEDR. NEWVILLE PENNSYLVANIA 17241 August 12 1999
('Eq~ j p;';; ~;;~ 'i:~~i ~i~~ i.................... '{5 ~~~~ ~ i................................ ('ci;Y i........ .......................... (S ~~~~'i""""""""""'" i zip i........................ '('D a'~~ i..........
To: ...... 9.1;.1 b!~!$..II.l:h1.~~ .P.~g:r.~ .!:-.t';I.'? .~I~.Y.!~.~ .!~.~: .... ... ...... ............... ... ..... ...... ............ ................. ........ ..... ....... ............. ...... ..... ...... ........... ..........
( Seller/Lessor/Mortgagee)
P.O. BOX F FREMONT INDIANA 46737
...... ............ ....... ... '" ..... ....(.N~:;. .... .... ..................... ..... ('s'~~~~i ... ............... ....... ....... '('(1 ~i"'" ........ .... ........ ....... "('s~~~~'i'"'''''' ...... ......... ........ ..... .....
We hereby' ackn9wledge complete and satisfactory delivery / installation of the properry described in the agreement between us dated
..............Q~J.ll/.9.9........and notice of your intention to sell such agreement and our note(s) to ORIX Credit Alliance, Inc. In order to induce ORIX
Credit Alliance, Inc. to purchase such agreement and note(s) we represent to it that the same are free from any defenses, offsets or counterclaims and we
hereby waive any claim or offset as against ORIX Credit Alliance, Inc. and recognize its right to enforce such agreement and note(s) according to their terms
free from any defenses, offsets or counterclaims.
"'~~Q.9.p. J:. Y.9H.~ .l! ........... .......................... .................................................... ........................ ..............
( Buyer/Lessee/Mortgagor)
135 S. SIDE DR. NEWVILLE PENNSYLVANIA 17241
......".<>"".7?~.............~........(.A.dd~~~~.i..............................................................................
By. ..~~.... ..... ......ZJ:--.-........................................................................................
,f' (Owner/Parmer or Officer)
)/I/S( 1-98)
VER 4.10
lJ_
VI'II
EXHIBIT "D"
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CfCf.22'S~2~~?,~t~~T;J~,O 0'],
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1iE.ocu'iDEii\iFiCAT'iciN'iiulo'fliil\
. to. .'-.:. ,.
, 800v mE
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, ~ Dup... ..1'
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. 51 m: OR I i;_>,::,!.~,'~'~.(,~~~.;~>:":l"
e '''''-~'",-:U;~~o&..("~_ ,~.....~--~:t .1.... .
P A 17~~1], -'.:~.'f. ~~(~,.,,...',,,""
t: ., ''":- ~ ~ ',~..,1. -"-' ,.''''
REGlSTEFlOO OWNER'S)
CREDIT
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Al.J,:,J.A ~~E -,1.'}.,,>.,,"t.
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. DATE
AlITHORlZEO 'REPRESENTA lIVE '
.~.-
"
ORIX CREDIt AllIA~CE
INC
~300 SHEL8YVILLE'RD-
STE 91.0
LOUISVILLE KY'~0222
" . .
I eenly a. 01 .... d... 01 Inue. lhe ot'idal ~ 01 lhe p~~an" .1)rfIe:lD"",*,,"
of TI.tnII)OtIAliOn ,,'1ecI NI h Plrson("l) 01' ~anr F\Dmed Nfeln.W 1M tawtul OiM\ef
d... .... _
-
". 'I
, "0'
<>000.<, SlA 'US
nT\.E BI\ANbs
....... ".:
TITLE alW<OS
,. . AH'1lOt1 VEHC1.E
c .~V[IolIC\.E
o . oo..U:CTB....E V9t1:.lE
,:: . OUT c~ COU...'T~V
G . O'=ll(ilHAlLv AI,:'GO. FOF\ NO....<J_S
O:$TRVJTPON
.. . AGFlCU.TVI\.U. VEH'CLE
1. . l..OGGn-IG V94'":\..f
,. . '$NI1tS ^ ItOlrC~ VEOo4tClE
R . JlEco.-..sTPUCT!D
S . SlRm POD
1 . 'AfctN'Eqo ~ vtHICU.:
V . VEMCU: CON'UJMS FeSSUEO v>>t
w. nOClOVE"~
X . I$/'WAS,. TAXI
SECONO UOpj FAVOR OF,
,\
II . N~ Ii.nnotdor IS. '$teet upo'\ .saUsl8a;o.., Of "". r..s' ..."'. 1M tlt51
llenholde, "...,.51 10ftIrj;.tt1 ns TrtI. \0 dw. eur81lU Q'I ....'0'/01 v~, .......Ih 'tte
Icpq3tiaJe tot!n ,Ind I...
SECOND LJEN IlELEJ-SED
OA~
. BY
AIJTliORIZEO REPAESE'<TAnVf
f'''-t'1
~Htt.:20RY .
'.:'} ,;..'"
_...~ ,"r.~'"
,L, 1. iI'.1 ,4'. '. ...,
~ k{. >'.~.,~
\-?:..$o..~ RA~Ii~t' L
~,~.,__f ..... ~ .
Secretlu') n( Tnu)<ptIr1.I~
-
ro1Cl:1,........ ....I....,oj._.._. n_ .,...~_.-
VERIFICATION
Yvonne Kalpakoff states that she is a Senior Vice President of ORIX Financial Services,
Inc. f/kla ORIX Credit Alliance, Inc., the plaintiff herein; that she is authorized to and does make this
Verification for and on its behalf; and that the facts set forth in the foregoing Complaint are true and
correct to the best of her knowledge, information and belief.
This statement is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to
unsworn falsification to authorities.
ORIX FINANCIAL SERVICES, INC. f/kla
ORIX CREDIT ALLIANCE, INe.
Sworn to and subscribed
before me this jl'llday
of SE:P-rl:"11B ' 2006.
Notary Public
Notary Public, Cobb County, Georgia
My Commission Expires August 24, 2008
-4-
\C}.
19 () ~
t \l=- ~ 00
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----------
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.-------------
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYL VANIA
ORIX Financial Services, Inc.
f/k/a ORIX Credit Alliance, Inc.
NO.;
VS.
Elwood J. Yohe, II
TO: Elwood J. Yohe, II
135 Southside Drive
Newville,PA 17241
236 NOTICE
NOTICE IS GIVEN THAT A JUDGMENT IN THE ABOVE CAPTIONED
MATTER HAS BEEN ENTERED AGAINST YOU.
IF YOU HAVE ANY QUESTIONS CONCERNING THE ABOVE, PLEASE
CONTACT:
Michael F.J. Romano, Esquire
Attorney 1.0. # 52268
52 Newton Avenue, P.O. Box 456
Woodbury, NJ 08096
Telephone: (856) 384-1515
Attorney for Plaintiff
LAW OFFICES OF
MICHAEL F.J. ROMANO
Identification No. 52268
52 Newton Avenue, P.O. Box 456
Woodbury, NJ 08096
(856) 384-1515
Attorney for Plaintiff, ORIX Financial Services, Inc. f/kla ORIX Credit Alliance, Inc.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
ORIX FINANCIAL SERVICES, INC. f/kla
ORIX CREDIT ALLIANCE, INC.
600 Townpark Lane
Kennesaw, GA 30144
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
TERM, 2006
Plaintiff
v.
CIVIL ACTION - LAW
NO.: Ci- -SJ9~ C iCJl-L~~
ELWOOD J. YOHE, II
135 Southside Drive
Newville, P A 17241
Defendant
ENTRY OF APPEARANCE, PRAECIPE FOR ASSESSMENT
OF DAMAGES AND CONFESSION OF JUDGMENT
TO THE PROTHONOTARY:
Kindly enter my appearance for and on behalf of the plaintiff, ORIX Financial Services,
Inc. f/kla ORIX Credit Alliance, Inc.
I hereby confess judgment in favor of the plaintiff, ORIX Financial Services, Inc. f/kla
ORIX Credit Alliance, Inc., and against the defendant, Elwood J. Yohe, II, by virtue of the warrant of
attorney contained in the Conditional Sale Contract Note attached to the accompanying Complaint for
Confession of Judgment as Exhibit A, and assess damages in th
ount of $51,862.54, plus continuing
late charges, actual attorney's fees and costs.
Dated: tj- /4~1~
~~,)
(/")
--I
-,-
[ :;
'=- .
t.~~'>
LAW OFFICES OF
MICHAEL F.J. ROMANO
Identification No. 52268
52 Newton Avenue, P.O. Box 456
Woodbury, NJ 08096
(856) 384-1515
Attorney for Plaintiff, ORIX Financial Services, Inc. f/k/a ORIX Credit Alliance, Inc.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
ORIX FINANCIAL SERVICES, INC. flk/a
ORIX CREDIT ALLIANCE, INe.
600 Townpark Lane
Kennesaw, GA 30144
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
TERM, 2006
Plaintiff
CIVIL ACTION - LAW
v.
NO.: D~ - S'3ft'
ELWOOD J. YORE, II
135 Southside Drive
Newville, P A 17241
Defendant
AFFIDAVIT OF NON-MILITARY SERVICE, ETC.
Yvonne Kalpakoff states that she is a Senior Vice President of ORIX Financial Services,
Inc. flk/a ORIX Credit Alliance, Inc., plaintiff in the above-captioned matter; that she is duly authorized
to make this Affidavit on its behalf; that the facts herein set forth are true and correct to the best of her
knowledge, information and belief; that the defendant is not in the Military or Naval Service of the United
States, nor any state or territory thereof or its allies, as defined in the Soldier's and Sailor's Civil, Relief
Act of 1940, as amended.
This statement is made subject to the penalties of 18 Pa.e.S. Section 4904 relating to
unsworn falsification to authorities.
Sworn to and subscribed
Before me this IllH day
of t'"PTtM6CR , 2006
Notary Public
Notary Public, Cobb County, Georgia
My CommIssion Expires August 24, 2008
-5-
(.':
C'.
'-oJ
LAW OFFICES OF
MICHAEL F.J. ROMANO
Identification No. 52268
52 Newton Avenue, P.O. Box 456
Woodbury,NJ 08096
(856) 384-1515
Attorney for Plaintiff, ORIX Financial Services, Inc. f/k/a ORIX Credit Alliance, Inc.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
ORIX FINANCIAL SERVICES, INe. flkla
ORIX CREDIT ALLIANCE, INe.
600 Townpark Lane
Kennesaw, GA 30144
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
TERM, 2006
Plaintiff
v.
CIVIL ACTION - LAW
NO.: 6/_ -$'.39(.. C~f:..Jc.L/~
ELWOOD J. YORE, II
135 Southside Drive
Newville, P A 17241
Defendant
AFFIDAVIT OF BUSINESS TRANSACTION
Yvonne Kalpakoff states that she is a Senior Vice President of ORIX Financial Services,
Inc. flkla ORIX Credit Alliance, Inc., plaintiff in the above-captioned matter; and that, to the best of her
knowledge, information and belief, the debt involved arises from a business transaction and not from a
consumer transaction or a retail sales agreement or contract.
This statement is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to
unsworn falsification to authorities.
ORIX FINANCIAL SERVICES, INe. flkla
ORIX CREDIT ALLIANCE, INe.
~
By: vonne Kalpakoff
TitlJ Senior Vice President
-6-
(..~ ~
'-
\.!'::.
LAW OFFICES OF
MICHAEL F.J. ROMANO
Identification No. 52268
52 Newton Avenue, P.O. Box 456
Woodbury,NJ 08096
(856) 384-1515
Attorney for Plaintiff, ORIX Financial Services, Inc. f/k1a ORIX Credit Alliance, Inc.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
ORIX FINANCIAL SERVICES, INe. f/k/a
ORIX CREDIT ALLIANCE, INC.
600 Townpark Lane
Kennesaw, GA 30144
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
TERM, 2006
Plaintiff
CIVIL ACTION - LAW
v.
NO.: O!- - $7l(..
(l'UtL~
ELWOOD J. YORE, II
135 Southside Drive
Newville, P A 17241
Defendant
AFFIDAVIT OF ADDRESSES AND CONJUGAL INCOME
Yvonne Kalpakoff states that she is a Senior Vice President of ORIX Financial Services,
Inc. f/k/a ORIX Credit Alliance, Inc., plaintiff in the above-captioned matter; that she is authorized to
make this affidavit on behalf of plaintiff; that the facts set forth in the foregoing Complaint are true and
correct to the best of her knowledge, information and belief; and that to the best of her knowledge,
information and belief, the income of defendant is in excess of $10,000.
Affiant also certifies that the address of the defendant is as follows:
Elwood J. Yohe, II
135 Southside Drive
Newville, PA 17241
and/or Elwood J. Yohe, II
63 Redshed Road
Shippensburg, P A 17257
By: vonne Kalpa~
Titl . Senior Vice President
Notary Public
Notary Public, Cobb Counly, C';Uf'i'''
My Commission Expires August 24, 2002
-7-
(.,r:
c
'--'C'
LAW OFFICES OF
MICHAEL F.J. ROMANO
Identification No. 52268
52 Newton Avenue, P.O. Box 456
Woodbury, NJ 08096
(856) 384-1515
Attorney for Plaintiff, ORIX Financial Services, Inc. f/k/a ORIX Credit Alliance, Inc.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
ORIX FINANCIAL SERVICES, INe. f/k/a
ORIX CREDIT ALLIANCE, INC.
600 T ownpark Lane
Kennesaw, GA 30144
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
TERM, 2006
Plaintiff
v.
CIVIL ACTION - LAW
NO.: 6L -S.39(' e ;0~ (/~
EL WOOD J. YOHE, II
135 Southside Drive
Newville, P A 17241
Defendant
AFFIDAVIT
I, MICHAEL F.J. ROMANO, an attorney at law licensed to practice in the Common-
wealth of Pennsylvania and entrusted with the handling of the above-referenced matter on behalf of ORIX
Financial Services, Inc. f/k/a ORIX Credit Alliance, Inc., plaintiff in the a ve-captioned matter, being
duly sworn according to law, hereby state that I am authorized to a e t . s affidavit on behalf of plaintiff
Sworn to and subscribed
before me this \l\'t+xIay
I of~~, 2006.
1
N Pu lie
~ MY L YOWELL
"'" .'AAy PUILJC OF NEW.....,
MY==4.~
-8-
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.,.or..........
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LAW OFFICES OF
MICHAEL F.J. ROMANO
Identification No. 52268
52 Newton Avenue, P.O. Box 456
Woodbury, NJ 08096
(856) 384-1515
Attorney for Plaintiff, ORlX Financial Services, Inc. f/kla ORIX Credit Alliance, Inc.
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ORIX FINANCIAL SERVICES, INC. f/k/a
ORIX CREDIT ALLIANCE, INC.
600 Townpark Lane
Kennesaw, GA 30144
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
TERM, 2006
Plaintiff
CIVIL ACTION - LAW
v.
el'uiL~
NO.: ~ - .S'~
ELWOOD J. YOHE, II
135 Southside Drive
Newville, P A 17241
Defendant
NOTICE UNDER RULE 2958.1 OF
JUDGMENT AND EXECUTION THEREON
Notice of Defendant's Rights
To:
Elwood J. Y ohe, II
135 Southside Drive
Newville, P A 17241
Elwood J. Y ohe, II
63 Redshed Road
Shippensburg, PA 17257
A judgment with a present balance in the amount of $51,862.54, plus continuing latt
charges, actual attorney's fees and costs has been entered against you and in favor of the plaintiffwithou
any prior notice or hearing based on a confession of judgment contained in a written agreement or othe
paper allegedly signed by you. The Sheriff may take your money or other property to pay the judgment;
any time after thirty (30) days after the date on which this notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or proper
from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AJ\
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PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WIDCH THIS
NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
Lawyers Referral Service
Cumberland County Courthouse
4th Floor
Carlisle, P A 17013
PH: (717) 240-6200
Cumberland County
Bar Association
32 South Bedford Street
Carlisle, P A 17013
PH: (800) 990-9108 or (717) 249-3166
Dated: 9-./ Ie(-- 0 ~
icha .J. Romano, Esquire
I ification No. 52268
52 Newton Avenue
P.O. Box 456
Woodbury, NJ 08096
(856) 384-1515
-2-
ORIX FINANCIAL SERVICES, INC. f/k/a
ORIX CREDIT ALLIANCE, INC.
Plaintiff
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
v.
NO. 2006-5396 CIVIL TERM
ELWOOD 1. YOHE, II
CIVIL ACTION-EQUITY
Defendant
PETITION TO STRIKE AND/OR OPEN JUDGMENT
Now, comes Defendant, Elwood J. Yohe, II, by and through his attorneys, O'BRIEN,
BARIC & SCHERER, and files the within Petition to Strike and/or Open Judgment and, in
support thereof, sets forth the following:
1. On or about August 12, 1999, Defendant, Elwood J. Y ohe II ("Defendant"),
entered into a Conditional Sale Contract Note ("Note") with Gulick Truck Parts and Service, Inc.
for a 1996 International Conventional Road Tractor, SN #2HSFHASR1 TC051 029 ("Road
Tractor").
2. Thereafter, Gulick assigned the Note to Plaintiff, ORIX Financial Services, Inc.
f/k/a ORIX Credit Alliance, Inc. ("Plaintiff').
3. On or about March 2000, Defendant defaulted in making payments under the
Note.
4. On or about May 2000, Plaintiff repossessed the Road Tractor and sold it at a
Public Sale ("Public Sale").
5. Pursuant to 42 Pa.C.S.A. ~ 5525, contract claims for the sale of tangible personal
property must be commenced within four (4) years of an alleged breach.
6. Pennsylvania's statute of limitations for contract actions begins to run as soon as
the right to institute and maintain a suit arises. Sevast v. Kakorouras, 841 A.2d 1062, 1070
(Pa.Super.2003), citing Weik v. Estate of Brown, A.2d 907, 909 (Pa.Super.2002).
7. An action in default by Plaintiff against Defendant for breach of contract arose in
March 2000 when Defendant defaulted on the Note. At the latest, this cause of action arose in
May 2000 when Plaintiff sold the Road Tractor at a Public Sale.
8. The statute of limitations for Plaintiff s breach of contract claim against
Defendant lapsed in March 2004 or at the latest, in May 2004.
9. In Paragraph 8 of Plaintiff s complaint, Plaintiff alleges that Defendant defaulted
in making payments under the Note and owes Plaintiff $51,862.54 plus charges, interest, fees
and costs.
10. In its complaint, Plaintiff fails to state the date on which Defendant defaulted on
the Note.
11. Plaintiff fails to state how it arrived at the figure owed by Defendant.
12. In Paragraph 10 of Plaintiff s complaint, Plaintiff states that the Road Tractor was
sold at a Public Sale for $7,503.50.
13. Plaintiff fails to state the date on which the Road Tractor was sold at a Public
Sale.
14. Plaintiff fails to state the fair market value of the Road Tractor at the time of sale.
15. Pursuant to Pennsylvania Civil Procedure Rule 1019(f), Plaintiff must specifically
aver times and places in support of its claims.
16. The Pennsylvania Commonwealth has held that the statute of limitations is to be
considered in assessing the specificity of a complaint. Therefore, plaintiffs must plead dates,
times, and damages with particularity. General State Authority v. Lawrie and Green, 24
Pa.Cmwlth. 407,414,356 A.2d 851,855 (1976).
17. Here, Plaintiff failed to state the date on which Defendant defaulted, how Plaintiff
arrived at the amount owed by Defendant, the date on which the Road Tractor was sold at a
Public Sale and the fair market value of the Road Tractor at the time of the Public Sale.
18. The Note contained a confession of judgment clause.
19. Plaintiff is an experienced lender.
20. Defendant is a high school graduate with little or no business experience.
21. The Note is a standard, pre-printed form that amounts to an adhesion contract.
22. The terms of this adhesion contract were non-negotiable.
23. Plaintiff created the Note such that the confession of judgment clause was typed
in small print located in the middle of the contract.
24. Plaintiff did not make the confession of judgment clause conspicuous and did not
set off the clause within the contract. On the contrary, Plaintiff reserved the power to confess
judgment upon Defendant by means of a single sentence located in the middle of a paragraph.
25. Plaintiff placed the confession of judgment clause on the reverse side of the
contract, where there appeared no blank spaces and nothing for the Defendant to agree to or sign.
26. Pennsylvania courts may refuse to enforce an entire contract, any part of a
contract, or limit the application of any part of a contract if they find that the contract or any
clause thereof to be unconscionable at the time the contract was entered into. 13 Pa.C.S.A. g
2302.
27. The Pennsylvania Superior Court has held a confession of judgment clause in a
contract to be unconscionable as between an inexperienced individual and an experienced
business. Germantown Manufacturing Co. v. Rawlinson, 341 PA Super 42,56,491 A.2d 138,
145 (1985).
28. The Pennsylvania Superior Court has found that unconscionable contracts are
most unfair when the one party is a professional in the trade and the other party is inexperienced
and uneducated in the trade.
29. The Pennsylvania Supreme Court has held where a confession of judgment clause
appears on the reverse side of a contract, the clause is not effective and does not bind the parties
thereto. Cutler v. Latshaw, 374 Pa. 1,5,97 A.2d 234, 236 (1953).
30. Here, the inconspicuous confession of judgment clause, written in fine print, on
the reverse side of the agreement, in a contract of adhesion, was unconscionable as between
Plaintiff, an experienced, professional lender and Defendant, an uneducated, inexperienced
individual.
31. The Note attempted to give Plaintiff the authority to repossess and sell the Road
Tractor in the event that Defendant defaulted on the Note.
32. In its complaint, Plaintiff alleged that Defendant defaulted on the Note.
33. After Defendant's default, Plaintiff repossessed the Road Tractor and sold it at a
Public Sale.
34. Plaintiff now seeks damages in the amount of $51 ,862.54.
35. At the Public Sale, Plaintiff accepted the bid of$7,503.50 for the Road Tractor,
despite the fact that the Road Tractor was worth far in excess of $7,503.50.
36. The Pennsylvania courts have adopted and enforced the Restatement (Second) of
Contracts 9205, which imposes upon each party to a contract a duty of good faith and fair
dealing in the contract's performance and enforcement. Stamerro v. Stamerro, 889 A.2d 1251,
1259 (Pa.Super.2005) citing John B. Conomos. Inc. v. Sun Co.. Inc. (R & M), 831 A.2d 696,
705-706 (Pa.Super.2003), appeal denied, 577 Pa. 697, 845 A.2d 818 (2004).
37. Here, Plaintiff breached the implied covenant of good faith and fair dealing when
Plaintiff sold the Road Tractor at a Public Sale for far less than its fair market value.
38. Plaintiff commenced an identical suit against Defendant in the Supreme Court of
the State of New York, Index No. 101533/06.
39. In New York, the parties have already filed their pleadings and held discovery.
WHEREFORE, Defendant respectfully requests this Honorable Court enter an Order
striking or opening the judgment.
Respectfully SUbm~;;j
David A. Baric, Esquire
J.D. #844853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Defendant
ORIX FINANCIAL SERVICES, INC. f/k/a
ORIX CREDIT ALLIANCE, INC.
Plaintiff
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
v.
NO. 2006-5396 CIVIL TERM
EL WOOD 1. YOHE, II
CIVIL ACTION-EQUITY
Defendant
CERTIFICATE OF SERVICE
I hereby certify that on October ~, 2006, I, David A. Baric, Esquire, did serve a copy
of the Petition to Strike and/or Open Judgment, by first class U.S. mail, postage prepaid, to the
party listed below, as follows:
Law Offices of Michael F.J. Romano
52 Newton Avenue, P.O. Box 456
Woodbury, New Jersey 08096
(856) 384-1515
David A. Baric, Esquire
ORIX FINANCIAL SERVICES, INC. f/k/a
ORIX CREDIT ALLIANCE, INC.
Plaintiff
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
v.
NO. 2006-5396 CIVIL TERM
ELWOOD J. YOHE, II
CIVIL ACTION-EQUITY
Defendant
VERIFICATION
I verify that the statements made in the foregoing Petition to Strike and/or Open
Judgment are true and correct to the best of my knowledge, information and belief. This
verification is signed by David A. Baric, Esquire, Attorney for Defendant and is based upon the
statements provided by Defendant, as well as documents reviewed by the undersigned as
attorney for Defendant. This verification will be substituted and ratified by a verification signed
by the Defendant who is presently unavailable to sign said verification. I undersigned that false
statements herein are made subject to penalties of 18 Pa.C.S. S4904, relating to unsworn
falsifications to authorities.
Y4jJ~ ri
David A. Baric, Esquire
Dated: October Cf , 2006
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ORIX FINANCIAL SERVICES, INe. f/kla :
ORIX CREDIT ALLIANCE, INe.,
Plaintiff,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 2006-5396 CIVIL TERM
ELWOOD J. YOHE, II,
CIVIL ACTION - EQUITY
Defendant.
PRAECIPE TO ATTACH SUBSTITUTE VERIFICATION
Please attach the following Substitute Verification to the Petition to Strike and/or Open
Judgment filed in this matter on October 2,2006.
Respectfully submitted,
Date:
/tJJu/tJ~
t /
David A. Baric, Esquire
LD. #44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Defendant
dab.dir/litigation/yohe/substituteverification.pra
.
ORIX FINANCIAL SERVICES, INC. f/k/a
ORIX CREDIT ALLIANCE, INC.
Plaintiff
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
v.
NO. 2006-5396 CIVIL TERM
ELWOOD 1. YOHE, II
CIVIL ACTION-EQUITY
Defendant
VERIFICATION
I, Elwood J. Yohe II, verify that the statements made in the foregoing Petition to Strike
and/or Open Judgment are true and correct to the best of my knowledge, information and belief.
I hereby ratify the verification previously supplied by my attorney, David A. Baric,
Esquire and execute this verification as a substituted verification.
I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.
S4904 relating to unsworn falsifications to authorities.
Date: It:::) ..;~ ,,~
.
..
ORIX FINANCIAL SERVICES, INC. f/k/a :
ORIX CREDIT ALLIANCE, INC.,
Plaintiff,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 2006-5396 CIVIL TERM
ELWOOD J. YOHE, II,
CIVIL ACTION - EQUITY
Defendant.
CERTIFICATE OF SERVICE
I hereby certify that on October 6, 2006, I, David A. Baric, Esquire, of O'Brien, Baric &
Scherer, did serve the Praecipe to Attach Substitute Verification by first class U.S. mail, postage
prepaid, to the parties listed below, as follows:
Law Offices of Michael FJ. Ramano
52 Newton Avenue
P.O. Box 456
Woodbury, New Jersey 08096
(856) 384-1515
David A. Baric, Esquire
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ORIX FINANCIAL SERVICES,
INC., f/k/a ORIX CREDIT
ALLIANCE, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 06-5396 EQUITY
vs.
EL WOOD J. YOHE, II,
Defendant
IN RE: PETITION TO STRIKE AND/OR OPEN JUDGMENT
ORDER
AND NOW, this (,' day of October, 2006, upon consideration of the petition to strike
and/or open judgment, it is hereby ordered that:
1. A rule is issued upon the respondent to show cause why the petitioner is not entitled
to the relief requested;
2. The respondent shall file an answer to the petition within twenty (20) days of service
upon the respondent;
3. The petition shall be decided under Pa.R.C.P. 206.7;
4. Depositions shall be completed within forty-five (45) days of this date;
5. Argument shall be held on December 8, 2006, at 1 :30 p.m. in Courtroom No.4; and
6. Notice of the entry of this order shall be provided to all parties by the petitioner.
BY THE COURT,
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Michael F. J. Romano, Esquire
For the Plaintiff
David A. Baric, Esquire
F or the Defendant
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ORIX FINANCIAL SERVICES, INC. f/k/a ;
ORIX CREDIT ALLIANCE, INC.
600 Townpark Lane
Kennesaw, GA 30144
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
CIVIL ACTION - LA W
2006-5396
NO.: ti~:ii96c Equity
v.
ELWOOD J. YOHE, II
135 Southside Drive
Newville, PA 17241
Defendant
PRAECIPE TO STRIKE JUDGMENT AND
WITHDRAW COMPLAINT
TO: Prothonotary
NOW, come the parties in this matter, by and through their attorneys of record,
and request that the judgment entered in this matter be stricken without prejudice and the
Complaint in Confession of Judgment filed by Plaintiff be marked as withdrawn without
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, County of New
prejudice subject to the pending action in the Supreme Court of New
David A. Baric, Esquire
Attorney for Defendant, Elwood Y ohe, II
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