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Home My WebLink About06-6955 AMERICAN MILK PRODUCTS CORPORATION NO. DL. - I,'l~ Ciu:L '--r~ FONTERRA (USA) INC., Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW Defendant. NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMA nON ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMA nON ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street Carlisle, PAl 70 13 (717) 249-3166 NOTICIA LE RAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. LLEVE EST A DEMANDA A UN ABODAGO INMEDIA T AMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE P AGAR TAL SERVICIO, V A Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA A VERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street Carlisle, PAl 70 13 (717) 249-3166 Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA FONTERRA (USA) INC., v. CIVIL ACTION - LAW NO. D{.-~9~S G;o~t/~ AMERICAN MILK PRODUCTS CORPORATION Defendant. COMPLAINT IN CIVIL ACTION Plaintiff, Fonterra (USA) Inc., files the following Complaint against Defendant, American Milk Products Corporation, and in support thereof states the following: 1. Plaintiff, Fonterra (USA) Inc. ("Fonterra"), is a Pennsylvania corporation with offices located at 1 00 Corporate Circle Drive, Suite 1 0 1, Camp Hill, Pennsylvania 17011. 2. Defendant, American Milk Products Corporation ("AMPC"), is a New Jersey corporation located at 17 Broadway, Suite 201, Cresskill, New Jersey 07626. 3. This court has personal jurisdiction pursuant to 42 Pa. Cons. Stat. Ann. ~ 5301, and AMPC's consent to suit and exclusive jurisdiction in the Cumberland County Court of Common Pleas, Pennsylvania. 4. Venue is proper in this county under Pa. R. Civ. P. 1006(a), and Pa. R. Civ. P. 2179, as AMPC has consented to suit and submitted to exclusive jurisdiction in the Cumberland County Court of Common Pleas, Pennsylvania. 5. On August 1,2006, AMPC executed a Promissory Note (the "Note") in favor of Fonterra for Fifty-Thousand and 00/100 Dollars ($50,000.00), to satisfy a valid trade debt that resulted from a business transaction. On that same day, the Note was executed by Mr. Raymond L. Stem, AMPC Vice-President. A true and correct copy of the Note is attached hereto as Exhibit "A," and incorporated herein by reference. 6. The Payment Terms ofthe Note required an immediate payment of One- Thousand and 00/100 dollars ($1,000.00). 7. The initial payment of One-Thousand and 00/100 dollars ($1,000.00) was received on August 8, 2006, as reflected in Exhibit "B," attached hereto and incorporated herein by reference. 8. A second payment of One-Thousand and 00/100 dollars ($1,000.00) was not received until over two weeks past the September 1, 2006, due date, as reflected in Exhibit "C," attached hereto and incorporated herein by reference. 9. The Payment Terms found in Paragraph (2) of the Note required AMPC to make subsequent monthly payments on the first of each month thereafter until the note was paid in full. 10. As of November 15, 2006, AMPC has failed to satisfy its payment obligations under the Note for three successive payment dates: (1) September 1,2006 (payment seventeen (17) days late); (2) October 2, 2006; and (3) November 1, 2006. 11. According to Paragraph 4(a) of the Note, AMPC shall be considered in default for failure to pay when due on any installment payable under the Note. 12. Under the express terms of Paragraph 4(a) of the Note, AMPC has been in default since September 1,2006, when their second payment was due, but not received by Fonterra until seventeen (17) days subsequent. 13. Paragraph 5(a) of the Note authorizes Fonterra to declare this debt, along with all other liabilities and obligations of AMPC under the Note, due immediately without further action of Fonterra. 14. In addition to the amount immediately due, Paragraph 5(b) the Note expressly authorizes, upon such default, Fonterra to collect all expenses and costs occurred in connection with the collection of the debt from AMPC, including reasonably attorneys' fees. 15. According to Paragraph (6), AMPC has waived any presentment, demand, protest or notice of any kind with regard to this Note. COUNT I BREACH OF CONTRACT-PROMISSORY NOTE 16. The averments in paragraphs 1 through 15 of this Complaint are incorporated by reference as if expressly set forth herein. 17. In failing to make the September 1,2006, payment in a timely manner, AMPC has breached its contract under the terms of the Promissory Note executed August 1,2006. 18. Moreover, in failing to make two more subsequent payments due October 2, 2006, and November 1, 2006, respectively, AMPC has continued its breach under the terms of the Promissory Note. 19. As a result of AMPC's failure to pay its obligations, Fonterra has suffered damage in the amount of Forty-Eight Thousand and 00/100 ($48,000.00), plus any and all interests thereon. 20. Fonterra further demands its attorneys' fees and costs of suit pursuant to Paragraphs 5(b) and 6 of the Note. 21. As a result of AMPC's breach, Fonterra is entitled to all expenses and costs incurred in connection with the collection of the amounts owed including, but not limited to, reasonable attorneys' fees. BUCHANAN INGERSOLL & ROONEY PC B~~ T oma . Collins Attorney J.D. No. 75896 Jan L. Budman II Attorney J.D. No. 203200 One South Market Square 213 Market Street, 3rd Floor Harrisburg, PA 17101-2121 WHEREFORE, Plaintiff Fonterra (USA) Inc. respectfully requests judgment in its favor and against American Milk Products Corporation in the amount of Forty-Eight Thousand and 00/100 ($48,000.00), plus any and all interests, fees, and costs related to this action and such further relief as this Court deems appropriate. DA TE: November 30, 2006 (717) 237-4800 . Nov. 16. 2006 1: 39PM FONTERRA (USA) No. 9377 P. 8/8 VERIFICATION 1, ~~ ~.'lk-I:'" MC,..I.,/". being the duly authorized representative of Fonterra (USA) Inc., hereby verify and state that the facts set forth in the foregoing document are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. ~4904 relating to unsworn verification to authorities. ~ #340998-vl;1111006 S:4S PM $50,000.00 August 1, 2006 PROMISSORY NOTE FOR VALUE RECEIVED, the undersigned, AMERICAN MILK PRODUCTS CORPORATION, a New Jersey corporation ("AMPC") located at 17 Broadway, Suite 201, Cresskill, NJ 07626 promises to pay to the order of FONTERRA (USA) INC., a Pennsylvania corporation (the "Fonterra"), with offices located at 100 Corporate Circle Drive, Suite 101, Camp Hill, P A 17011 the principal sum of Fifty Thousand 00/100 DoDan (550,000.00) in lawful money of the United States of America, payable as set forth herein below. This Promissory Note (this "Note") is issued by AMPC to Fonterra to satisfy trade debt (the "Debt") that has arisen from a business transactio~ which AMPC hereby acknowledges the Debt is valid in all respects and is due and owing F onterra. 1. Interest. The principal amount outstanding hereunder shall accrue interest at the rate of five percent (5%) per annum. 2. Pavment Terms. Beginning on August 15,2006, and continuing on the :first (1st) day of each calendar month thereafter until the note is pai~ AMPC shall pay Fonterra One Thousand and 00/1 00 Dollars ($1,000.00) in immediately available funds. If any payment is due on a Saturday or Sunday, or on any national holiday, such payment shall be made on the next succeeding business day. All payments under this Note shall be made to Fonterra, in immediately available funds, at its address provided above, or at such other location as F onterra shall designate. All or any part of the unpaid principal balance may be prepaid by AMPC at any time without premium or penalty. AMPC shall use its best efforts to prepay the principal balance oftms Note as financial conditions warrant. 3. Late Pavments. If AMPC fails to make any payment of principal or other amount coming due pursuant to the provisions of this Note within three (3) calendar days of the date due and payable, AMPC also shall pay to Fonterra a late charge equal to ten percent (10%) of the amount of such payment Such three (3) day period shall not be construed in any way to extend the due date of any such payment. 4. Events of Default. AMPC shall be in default under this Note upon the occurrence of any of the following events of default (a) AMPC fails to pay when due any installment of principal or any other sum payable to Fonterra hereunder; (b) AMPC becomes insolvent, bankrupt or generally fails to pay its debts as such debts become due; or if AMPC admits in writing its inability to pay its debts; or if AMPC suffers a receiver or trustee for its or substantially all of its properties to be appointed an~ if appointed without its consent, not discharged within sixty (60) days; or if it makes an assignment for the benefit of its creditors; or if AMPC suffers proceedings under any law related to bankruptcy or insolvency for the reorgani7J1tion or the release of debtors to be instituted against it, an~ if contested by it, not dismissed or stayed within sixty (60) days; or if proceedings under any law 335712 2 related to bankruptcy or insolvency or the reorgani7.3tion or release of debtors is instituted or commenced by AMJ>C; or (c) AMJ>C sells, conveys, transfers or otherwise assigns all or a substantial portion of the assets of AMPC, or its affiliates and, as part of such transactio~ AMPC fails to repay this Note in its entirety. 5. Remedies. Upon the occurrence of an event of default, Fonterra shall have the following remedies available to it: (a) Fonterra may at its election, declare the Debt, along with all other liabilities and obligations of AMPC to Fonterra evidenced by this Note, immediately due and payable and the same shall thereupon become immediately due and payable without any further action on the part of Fonterra; (b) AMJ>C shall pay Fonterra for all expenses and costs incurred in connection with the collection of the sums due hereunder (including, but not limited to, reasonable attorneys fees); and (c) All remedies available at law or in equity, and all such remedies shall be cumulative and non-exclusive. 6. Miscellaneous. AMPC hereby waives presentment, demand, protest or notice of any kind in connection with this Note. AMPC shall pay Fonterra on demand any reasonable out-of-pocket expenses (including reasonable legal fees) arising out of or in connection with any action or proceeding (including any action or proceeding arising in or related to any insolvency, bankruptcy or reorgani7.ation involving or affecting AMPC) taken to protect, enforce, determine or assert any right or remedy under this Note. This Note shall bind AMPC, its successors and assigns, and the benefits hereof shall inure to the benefit of Fonterra and its successors and assigns. AMPC may not assign this Note to any third party, related or unrelated. This Note and any other documents delivered in connection herewith and the rights and obligations of the parties hereto and thereto shall for all purposes be governed by and construed and enforced in accordance with the substantive law of the Commonwealth of Pennsylvania without giving effect to its conflict of laws principles. AMPC hereby submits and consents to the Court of Common .. '~+e. r~ Pleas of Cumberland County, Pennsylvania and/or the United States Federal District Court for the Middle District of Pennsylvania having the exclusive jurisdiction for all disputes arising from this Note. WITNESS the due execution hereof on the date first above written with the intention that this Note shall constitute a sealed instrument. 3 0330 ___~_____ n___._. "__'__'_ ._~___.._.._..____..._._._._______.__.___,__, _.__._._____.. __._~..=~=_.=,,="""..._.__ _____ AMERICAN MILK PRODUCTS ~ ....RPORATION 17 BROADWAY SUITE 201 CRESSKlll, NJ 07626 (201) 569-6495 (bl...al .~. 55-95/212 07/18/06 PAY TO THE ORDER OF Fonterra (USA) $ **1,000.00 One Thousand and 00/100********************************** ******************** DOUARS Fonterra (USA) 635 N. 12th Street Suite 101 Lemoyne, PA 17043-1225 AllTHOAlZED SIGNATURE MEMO NZ1/01 '---".-'-"'--.'---"'-.-..--.- --"'~"'-"-_"____'_ _h.__.___~_ .."_.._. ._.:-~._.,_.._ _.,_.._,_~_... __._._ 1/1 0 0 0 ~ 30 III I: 0 2 ~ 2 DOg 5 ? I: III ~ ... 5 III 0 q ~ 0 3 g b 1/1 . ~-~ _.~. .__.~- ~--~ AMERICAN MilK PRODUCTS CORPORATION 0330 Fonterra (USA) 12/05/01 Bill #9005231 07/18/06 1,000.00 RECEIVED AUG 0 8 ZOOS Commerce Bank NZ1/01 1,000.00 ~';':~:~;\: .'.:,...... .:.~.:.. I ~ .... z N iI: ~." ~ V1g I ~rt ....~ , i I i:'. ;"'S" n", $','- ~, :s '1':' Z N ',,~. & ~ CD .... .... .... I N W .... ~ ~ ~ iof', I I: .... .. I z o W -..I C1I A:J 0 'b,.. ^ ~ ~ ~ """- ~ if? ~ ~ (l ,..", ~ CY c: = 0 c::> ~-- C.1'" ... --.. ~ -u ':} i-',:'l 0 :r." ~ r.... 1'1 ~ n m- I F I -r:-1m -. .- -0 ';:J .- l~~~ ~ ,. v -.,... ....... ~vC) .~T:" (::--. c..,) 25n1 -:,/ :3 . . --1 .~ (....) 55 ~ .;::- -< FONTERRA (USA) INC., Plaintiff, - ': IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW AMERICAN MILK PRODUCTS CORPORATION NO. 06-6955 CIVIL TERM Defendant. PRAECIPE TO ENTER DEFAULT JUDGMENT AGAINST AMERICAN MILK PRODUCTS CORPORATION TO THE PROTHONOTARY OF THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY: Pursuant to Rule 1037(b) of the Pennsylvania Rules of Civil Procedure, kindly enter judgment in favor of Plaintiff Font err a (USA) Inc. and against American Milk Products Corporation, Defendant in this matter, for failure to plead to the Complaint, and assess the Plaintiffs damages, under subsection (1) of aforesaid Rule 1037(b) as follows: Amount claimed in Plaintiffs Complaint ....................................................... $48,000.00 Late fee (10%) of the following amount due: September 2006 ($1,000), October 2006 ($1,000), November 2006 ($2,000), December 2006 ($3,000), and January 2007 ($4,000), per Promissory Note, paragraph 3............................. $ 1,100.00 Attorneys ' Fees and Costs.. .................................. .............. ...... ................. ...... $ 1,330.50 TOTAL............................................................................................................ $50,430.50 It is certified that a written notice of intention to file this praecipe was mailed to the Defendant against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least 10 days prior to the date of filing this praecipe. A true and correct copy of the notice is attached hereto as Exhibit "A." By: T om . C IllS Attorney J.D. No. 75896 Jan L. Budman II Attorney J.D. No. 203200 213 Market Street. 3rd Floor Harrisburg, PA 17101-2121 DATE: January 16.2007 (717) 237-4800 ~ ~><kf~"+ A- Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FONTERRA (USA) INC., v. CML ACTION - LAW AMERICAN MILK PRODUCTS CORPORATION NO. 06-6955 CIVIL TERM Defendant. IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY A TIORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MA Y LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HA VB A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGffiLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street Carlisle, P A 17013 (717) 249-3166 BUCHANAN INGERSOLL & ROONEY PC ~~tL- . ~;y LD. No. 75896 Ian L. Budman II Attorney LD. No. 203200 213 Market Street, 3rd Floor Harrisburg, PA 17101-2121 DATE: December 29, 2006 (717) 237-4800 CERTIFICATE OF SERVICE I hereby certify that on this 29th day of December, 2006, I served a true and correct copy ofPlaintifrs Default Notice on the following individual(s) named below by United States first class mail, postage pre-paid: Raymond L. Stem Vice President American Milk Products Corporation 17 Broadway, Suite 201 Cresskill, New Jersey 07626 BUCHANAN INGERSOLL & ROONEY PC ~9~ G. oIlins Attorney J.D. No. 75896 Jan L. Budman II Attorney J.D. No. 203200 One South Market Square 213 Market Street, 3rd Floor Harrisburg, PA 17101-2121 (") c-> 0 ~ ~ = C AJ c <:::::' -0 _....J ~ :-.0 ...::.. :i-n J:. c...- ~ :S:-"".l rl1r= 0- :;;C - -Om - () -l :n~ ,,, r -- tv .."<~(- ~ ~ -4+~' -r....~, ~ ,"' -<1 _<"II'''' '026 -- r~_ om ~ j w --0\ /: r -.-\ rv ~ ~ ......: -l \Y 1- - ~ I> FONTERRA (USA) INC., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Plaintiff, v. CIVIL ACTION -LAW AMERICAN MILK PRODUCTS CORPORATION NO. 06-6955 CIVIL TERM Defendant. AFFIDAVIT OF ATTORNEYS' FEES. COSTS. AND LATE PAYMENT FEES I, JAN 1. BUDMAN II, hereby affirm and certify the following: 1. I am an attorney with the law firm of Buchanan Ingersoll & Rooney PC ("BIRPC"). BIRPC is a law firm with an office located at 213 Market Street, Harrisburg, Pennsylvania 17101. 2. I submit this affidavit in connection with the Praecipe to Enter Default Judgment Against American Milk Products Corporation filed concurrently herewith by Plaintiff Fonterra (USA) Inc. ("Fonterra"). 3. As alleged in the Complaint, Fonterra's claims against American Milk Products Corporation are based on a Promissory Note, attached to the Complaint as Exhibit "A." 4. Pursuant to this Agreement, Defendant agreed to pay Fonterra all expenses and costs incurred in connection with the collection of said sums (including reasonable attorneys' fees). 5. To date, Fonterra has incurred attorneys' fees and costs in bringing this ~io~ ;:-: -.J r: '- the amount of$I,330.50. ;::.~ z . -.I o -n ~:n rnp_.. -" .--:1 .:00 ;"-) T ......e> -'I'll ~;?1~ (Sell ~ :n .< ...,., (,.) N -.I ) '. 6. Pursuant to this Agreement, Defendant agreed to pay Fonterra late payment fees equal to ten percent (10%) of the amount due, for failure to pay within three (3) days of the date due. 7. To date (January 2007), Defendant owes Fonterra late payment fees in the amount of$1,100.00. BUCHANAN INGERSOLL & ROONEY PC By: T oma . Collins ey J.D. No. 75896 Jan L. Budman II Attorney J.D. No. 203200 213 Market Street, 3rd Floor Harrisburg, PA 17101-2121 DATE: January 16, 2007 (717) 237-4800 ~ c:::> = ~ C- :r,;;.:.'o :;t: o -n ~-n rTlp -0 tI1 .'JQ 7':) )..) ":::'~ ~f'~ X-ri ") .-.' :_~C) :'7. rn ~~ };:" ~ -....l V -:r'" ---.- t:? N -....l