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HomeMy WebLinkAbout95-02043 ~ .~ \~ J "1 '::- ,0 ",'" ~~I VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 95- 2043 CIVIL TERM : CONFESSION OF JUDGMENT DAVID C. LEBO, plaintiff KENWOOD W. LOSH, SR. AND SUSAN K. LOSH, Husband and Wife, Defendants 95- 2044 CIVIL TERM STATUTORY ACTION TO CONFORM CONFESSED JUDGMENT MOTION TO CONFORM JUDGMENT PURSUANT TO PA. R.C.P. 2986 (a\ AND NOW, comes plaintiff, David C. Lebo, by his attorneys, Fowler, Addams, Shughart & Rundle, and respectfully represents: 1. plaintiff is David C. Lebo who resides at 912 Forbes Road, carlisle, PA 17013. 2. The Defendants are Kenwood W. Losh, Sr. and Susan K. Losh, husband and wife, both adult individuals who reside at 404 crossroad School Road, Carlisle, PA 17013. 3. On April 21, 1995, Plaintiff entered judgment against the Defendants in the sum of $52,571.59 together with costs of suit and continuing interest, taxes, insurance, late charges, etc. and in ejectment for possession of the real property known as 540 North Bedford street, Carlisle, PA 17013. The said judgments are indexed to No. 2043 civil Term 1995 in the Court of Common pleas of cumberland county, Pennsylvania. 4. on June 6, 1995, a Default Judgment was entered in favor of the plaintiff and against the Defendants in a statutory action to conform the confessed judgments, which judgments are indexed to No. 2044 civil Term 1995 in the sum of $52,571.59 together with costs of suit and continuing interest, taxes, insurance, late charges, etc. and in ejectment for possession of the real property known as 540 North Bedford Street, Carlisle, PA 17013, the legal description of which property is attached hereto, marked Exhibit "A" and incorporated herein by reference thereto. 5. PA R.C.P. 2986(a) requires that the Court "shall enter an appropriate Order conforming the confessed judgment to the judgment in the [statutory action to conform judgment]." 6. The two judgments have been entered. They should be merged as one judgment for the purpose of execution proceedings. WHEREFORE, Plaintiff prays Your Honorable Court to enter an Order merging the Judgments in the two actions. FOWLER, ADDAMS, SHUGHART & By: , Dale F. Shug rt,.Jr. Atty 1.0. 19373 ' 28 South Pitt Street P. O. Box 208 Carlisle, PA 17013 (717) 249-8300 VERIFICATION Dale F. Shughart, Jr. hereby verifies that the facts set forth in the foregoing Motion to Conform Judgment are true and correct to the best of his knowledge, information and belief, and understands that false statements herein are made SUb7e t to the penalties of 18 Pa. C.S. 54904 relating to unsworn ) falsifications. t c:,/ / ' " ,I Z4,,' . ' DATE: June 6, 1995 // -.- .~_.- VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 95- ,X Cl 4 ') CIVIL TERM DAVID C. LEBO, Plaintiff KENWOOD W. LOSH, SR. AND SUSAN K. LOSH, Husband and wife, Defendants CONFESSION OF JUDGMENT COMPLAINT IN CONFESSION OF JUDGMENT AND NOW, comes the plaintiff David C. Lebo, by his attorneys, Fowler, Addams, Shughart & Rundle and makes the following complaint in confession of Judgment: 1. Plaintiff is David C. Lebo who resides at 912 Forbes Road, carlisle, Pennsylvania 17013. 2. Defendant, Kenwood W. Losh, Sr., is an adult individual who resides at 404 crossroad School Road, carlisle, PA 17013. 3. Defendant, Susan K. Losh, is an adult who resides at 404 crossroad school Road, Carlisle, PA 17013. 4. A true and correct copy of the Installment Sale Agreement between plaintiff and defendants dated September 14, 1993 and recorded in the Office of the Recorder of Deeds in and for cumberland County, Pennsylvania, in Misc. Book 454, Page 350 is attached hereto, marked Exhibit "A" and is incorporated herein by reference thereto. 5. The instrument has not been assigned. 6. Judgment on the instrument has not previously been entered in any juriSdiction. 7. Paragraph No.8 of the instrument provides in pertinen~ part as follows: A failure of the Buyer to pay any monthly installments or perform any other obligation under this Agreement for over sixty (60) days shall constitute a default and the Seller may declare this Agreement ended, retaining all payments made to that time as liquidated damages and, in such event, Buyer hereby authorizes the Prothonotary or any attorney of any court of record to appear for and to confess judgment in an equitable action of ejectment against the Buyer, their heirs, assigns, oxecutors and administrators in favor of the Seller, his heirs and assigns, administrators and executors for the premises herein described and to direct the immediate issuance of a Writ of Possession with Writ of Execution for costs including an attorney fee of Five (5%) percent of the unpaid balance of the purchase price, without aSking leave of court, or at the option of the Seller, Buyer also authorizes the Prothonotary or any attorney of any court of record to confess judgment against Buyer and in favor of Seller for the entire unpaid balance of the purchase price, together with costs, interest, taxes, insurance payments, etc. and with Five (5%) percent added as an attorney fee. B. The defendant has defaulted in the payment of monthly payments and/or breached other conditions of the Agreement for more than sixty (60) days as follows: a. Defendant has failed to make any of the required monthly payments of Four Hundred One ($401.49) Dollars and 49 cents commencing with the payment due on or before September 14, 1994, including all payments due since that date, to wit, payments due September 14, 1994, October 14, 1994, November 14, 1994, December 14, 1994, January 14, 1995, February 14, 1995, March 14, 1995 and April 14, 1995, a total of eight (B) consecutive payments. b. The defendants have failed to make payment of the required late payment charges incurred by failing to make payment of the monthly payments within thirty (30) days of their due dates as provided in Paragraph 2 of the Agreement, which includes all consecutive months from september 14, 1994 through March 14, 1995, a total of seven months at Twenty ($20.00) Dollars per month. -2- c. The defendants failed to make school district tax which taxes Seller amount of $274.60. d. The defendants allowed their required fire and casualty insurance on the premises to be cancelled and/or to lapse on September 14, 1994 requiring plaintiff to obtain insurance to protect his interest in the premises until the defendants re-acquired insurance coverage on the premises on or about March 31, 1995. 9. Written notice of default and intent to enter judgment and commence a statutory action dated February 21, 1995 and mailed on that date by certified mail and first class U.S. mail, postage prepaid pursuant to section 403(a) of the Act of January 30, 1974, P.L. 13, No. 6 as amended was sent to each of the defendants at their home address as set forth above and at the address of the real property in question, 540 North Bedford Street. True and correct copies of which Notices are attached hereto, made a part hereof and marked Exhibit "B" as to defendant Kenwood W. Losh, Sr. and Exhibit "c" as to defendant Susan K. Lash. 10. True and correct copies of the return receipt cards for certified mail of the Notices sent to the Defendants' residence are attached hereto, marked Exhibit "0" and incorporated herein by reference. 11. Defendants, however, received the aforesaid Notices mailed by first class mail. Defendant, Kenneth W. Losh, Sr. telephoned and came to the office of the undersigned attorneys for plaintiff shortly after the mailing of the aforesaid Notices, acknowledged receipt of the same, endeavored to make arrangements to bring the defaulted obligation current, and eventually delivered evidence of the reinstitution of insurance protection effective on March 31, 1995. payment paid at of the 1994 the penalty -3- 11. Plaintiff has not received any payment from the defendants since receipt of the payment due on August 14, 1994. 12. The sums due and owing from the defendants plaintiff are as follows: a. Remaining balance of principal due and owing - b. Accrued interest on the remaining balance since August 14, 1994, the sum of $313.82 per month to and including April 14, 1994, a total of eight (8) months _ c. Interest from April 14, 1994 to date of judgment, April 21, 1995 and total of seven (7) days at $10.47 each day - 73.29 d. Unpaid school district tax, at penalty 274.60 e. Seven late payment charges of $20 each 140.00 f. Attorney's commission of 5% of balance 2,500.00 Total due - $52,571.59 13. Defendant is further obligated for the costs of suit, continuing interest on the unpaid principal balance at a rate of eight (8%) percent per annum, unpaid interest, insurance, late charges, etc. 14. The amortization schedule prepared by the attorneys for the plaintiff demonstrating the unpaid balance of principal and accrued interest due and owing by the defendant is attached hereto, marked Exhibit "E" and incorporated herein by reference therElto. to the $47,073.14 2,510.56 COUNT I - CONFESSION OF JUDGMENT FOR MONEV 15. The averments of Paragraphs 1 through 15, inclusive, are incorporated herein by reference thereto. 16. Plaintiff demands judgment against the Defendants, jointly and severally, as authorized by the warrant contained in the attached instrument, Plaintiff's Exhibit "A", in the total sum of $52,571.59 together with costs of suit, continuing -4- interest at the rate of eight (8%) unpaid principal balance, together insurance, late charges, etc. WHEREFORE, Plaintiff demands judgment be entered against Defendants, Kenwood W. Losh, Sr. and Susan K. Losh, husband and wife, jointly and severally, in the total sum of $52,571. .59, together with costs of suit and continuing interest at eight (8%) percent, unpaid taxes, insurance, late charges, etc. as aforesaid. percent, with any per annum on the unpaid taxes, COUNT II - CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY 17. The averments of Paragraph 1 through 17, inclusive, are incorporated herein by reference thereto. 18. The real property which is the subject of this proceeding is situate in Cumberland County, Pennsylvania and is known as 540 North Bedford street, Borough of Carlisle, cumberland county, Pennsylvania. A full legal description of such property being attached hereto as a part of the Installment Sale Agreement of the parties, previously, marked as Exhibit "A" and incorporated herein by reference thereto. 18. Plaintiff demands a Judgment in Ejectment be entered in favor of Plaintiff and against the Defendants for possession of the above described real property. WHEREFORE, Plaintiff demands judgment in ejectment be entered in favor of the Plaintiff and against the Defendants for possession of the real property aforesaid, i.e., the premises known as 540 North Bedford Street, Carlisle, PA 1701B. FOWLE .' IAPD ~;~. k~d~' T & RUNDLE By: '. ~;) J - '! I' j \ ale F. S g arti Jr. Atty 1. D. 19373 i' 28 South pitt Street Carlisle, PA 17013 (717) 249-8300 -5- . ' David C. Lebo February 21, 1995 Page 2 The total amount now required to cure this default, or in other words, get caught up on your payments, as of the date of this letter, is Two Thousand Seven Hundred Eighty-three and 54/100 ($2,783.54) Dollars. You mav cure this default within THIRTY 1301 DAYS OF THE DATE OF THIS LETTER. BY PAYING TO ME THE ABOVE AMOUNT OF TWO THOUSAND SEVEN HUNDRED EIGHTY-THREE AND 54/100 1$2.783.541 DOLLARS. PLUS ANY ADDITIONAL MONTHLY PAYMENTS AND LATE CHARGES WHICH MAY FALL DUE DURING THIS PERIOD. Such payment must be made by either cash, cashier's check, certified check or money order, and payable to me at the offices of Fowler, Addams, Shughart & Rundle, 28 South Pitt street, Carlisle, PA 17013. It you do not cure the default within THIRTY (30) DAYS, I intend to exercise my right to accelerate the Installment Sale Aqreement pavments. This means that whatever is owing on the original amount borrowed will be considered due IMMEDIATELY and you may lose the chance to payoff the original Installment Sale Agreement in monthly payments. If full payment of the amount of default is not made within THIRTY (30) DAYS, we also intend to instruct our attorney to enter iudqment bv confession aqainst vou for the full amount owed bv VOIl and to start a statutory action to conform the confessed iudqrnent. If iudqment is entered in the statutory action. the property at 540 North Bedford Street may be sold bv the Sheriff to pay off the balance owed by vou. If we refer your case to our attorney, but you cure the default before legal proceedings are started against you, you will have to pay the reasonable attorneys fees, actually incurred, up to $50. However, if legal proceedings are started against you, you will have to pay the reasonable fees even if they are over $50. Any attorney fees will be added to whatever you owe us, which may include our reasonable costs. If YOU cure the default within the thirty 1301 day period. yoU will not be required to paY attorney fees. We may also enter judgment by confession against you for possession of the property and file a statutory action to conform the confessed judgment. You should realize that a final judgment in ejectment in favor of me and against you for possession of the property you are buying under your Agreement will end your ownership of such property and your right to remain in possession of it. If you are in actual or constructive possession of the 0-1 . . David C. Lebo February 21, 1995 Page 2 The total amount now required to cure this default, or in other words, get caught up on your payments, as of the date of this letter, is Two Thousand Seven Hundred Eighty-three and 54/100 ($2,783.54) Dollars. You mav cure this default within THIRTY (30) DAYS OF THE DATE OF THIS LETTER. BY PAYING TO ME THE ABOVE AMOUNT OF TWO THOUSAND SEVEN HUNDRED EIGHTY-THREE AND 54/100 ($2.783.54) DOLLARS. PLUS ANY ADDITIONAL MONTHLY PAYMENTS AND LATE CHARGES WHICH MAY FALL DUE DURING THIS PERIOD. Such payment must be made by either cash, cashier's check, certified check or money order, and payable to me at the offices of Fowler, Addams, Shughart & Rundle, 28 South pitt Street, Carlisle, PA 17013. It you do not cure the default within THIRTY (30) DAYS, I intend to exercise mv riqht to accelerate the Installment Sale Aqreement pavments. This means that whatever is owing on the original amount borrowed will be considered due IMMEDIATELY and you may lose the chance to payoff the original Installment Sale Agreement in monthly payments. If full payment of the amount of default is not made within THIRTY (30) DAYS, we also intend to instruct our attorney to enter iudqment bY confession aqainst vou for the full amount owed by YOU and to start a statutory action to conform the confessed iudqment. If iUdqment is entered in the statutory action. the property at 540 North Bedford Street may be sold by the Sheriff to pay off the balance owed bv you. If we refer your case to our attorney, but you cure the default before legal proceedings are started against you, you will have to pay the reasonable attorneys fees, actually incurred, up to $50. However, if legal proceedings are started against you, you will have to pay the reasonable fees even if they are over $50. Any attorney fees will be added to whatever you owe us, which may include our reasonable costs. If yoU cure the default within tOg thirty (30) day period. yoU will not be required to pay attorney fees. We may also enter judgment by confession against you for possession of the property and file a statutory action to conform the confessed judgment. You should realize that a final judgment in ejectment in favor of me and against you for possession of the property you are buying under your Agreement will end your ownership of such property and your right to remain in possession of it. If you are in actual or constructive possession of the property after I begin enforcement of a final judgment in ( -- ) , . .. I - ~ ~1~~kacre's RESPA ~. ;7 76 ;ej'~ p- MORTGAGE SCHEDULE - PRINCIPAL & INTEREST FOR YEAH 1 TO YEAR 5 OF: Fowlor, Addams, Shughart & Rundlo COMPLIMENTS FILE: Lebo BORROWER: SELLER: AMOUNT BORROWED ANNUAL INT RATE TERM OF LOAN MONTHLY PAYMENT ($) (') (YRS) ($) I [48000,00 . 8.000 20 401. 49 1-; 0 Lj C'. .) L). <../( ll,~. ( l'AS&R) ) { (/,- (, 5 > )u\ ~ , f,)7 tl ~ ='.- ---' ~~.c'~~.- YEARLY PRINCIPAL INTEREST BALANCE PRINCIPAL PAYMENT MO. DUE DATE -~ ~~i~~i;; 2 11/14/93 1"I)l2/14/93 :-() 1/14/94 ~ 2/14/94 6 3/14/94 .7. 4/14/94 1 5/14/94 41' 6/14/94 1 7/14/94 IT~ 8/14/94 ~ 9/14/94 13 10/14/94 14 11/14/94 15 12/14/94 16 1/14/95 17 2/14/95 18 3/14/95 19 4/14/95 20 5/14/95 21 6/14/95 22 7/14/95 23 8/14/95 24 9/14/95 25 10/14/95 26 1]./14/95 27 12/14/95 28 1/14/96 29 2/14/96 30 3/14/96 31 4/14/96 32 5/14/96 33 6/14/96 34 7/14/96 35 8/14/96 36 9/14/96 37 10/14/96 38 11/14/96 39 12/14/96 40 1/14/97 41 2/14/97 42 3/14/97 43 4/14/97 44 5/14/97 45 6/14/97 46 7/14/97 47 8/14/97 48 9/14/97 49 10/14/97 50 11/14/97 51 12/14/97 52 1/14/98 53 2/14/98 54 3/14/98 55 4/14/98 56 5/14/98 57 6/14/98 58 7/14/98 59 8/14/98 60 9/14/98 81.49 82.03 82.58 83.13 83.68 84.24 84.80 85.37 85.94 86.51 87.09 87.67 88.25 88.84 89.43 90.03 90.63 91. 23 91. 84 92.46 93.07 93.69 94.32 94.95 95.58 96.22 96.86 97.50 98.15 98.81 99.47 100.13 100.80 101.47 102.15 102.83 103.51 104.20 104.90 105.60 106.30 107.01 107.7'J 108.44 109.16 109.89 110.62 111.36 112.10 112.85 113.60 114.36 115.12 115.89 116.66 117.44 118.22 119.01 119.80 120.60 320.00 319.46 318.91 318.36 317.81 317.25 316.69 316.12 315.55 314.98 314.40 313.82 313.24 312.65 312.06 311.46 310.86 310.26 309.65 309.03 308.42 307.80 307.17 306.54 305.91 305.27 304.63 303.99 303.34 302.68 302.02 301. 36 300.69 300.02 299.34 298.66 297.98 297.29 296.59 295.89 295.19 294.48 293.71 293.05 292.33 291. 60 290.87 290.13 'J09.39 288.64 287.89 287.13 286.37 285.60 284.83 284.05 283.27 282.40 281.69 280.89 47918.51'" 47836.48 47753.90 246.10 47670.77 329.23 47587.09 47502.85 47418.05 47332.68 47246.74 47160.23 47073.14 46985.47 46897.22 46808.38 46718.95 1034.95 46628.92 1041.85 46538.29 46447.06 46355.22 46262.76 46169.69 46076.00 45981.68 45886.73 45791.15 45694.93 45598.07 1120.88 45500.57 1128.35 45402.42 45303.61 45204.14 45104.01 45003.21 44901. 74 44799.59 44696.76 44593.25 44489.05 44384.15 1213.92 44278.55 1222.02 44172.25 44065.24 43!i57.52 43849.08 43739.92 43630.03 43519.41 43408.05 '13295.95 43183.10 43069.50 1314.65 42955.14 1323.41 42840.02 42724.13 42607.47 42490.03 .12371.81 42252.80 42133 00 .12012.40 ) \ H t, 1 J~. YEARLY CHECK INTEREST NUMBER 958.37 1276.73 3782.93 3776.03 3697.00 3689.53 3603.96 3595.86 3503.23 3494.47 , ".,~~.; ~:;?~;;- M.," . ~PR 2/ 11 4l ~H '95 ,.OJ l" It"", , ". r' '. . j,'" ,. . \' '. ", ~. < " !, . \ I It } , " ' , ,,j f I ; 1 r r 'I'll .1',"1. (2 I{) , q s"/J 5-:- / fSrJ /tW(j f C( ( H'5f c.r;r'u'1t C!l 7 ff7 ~J, J-4)-~j -al/~e /llaJJ/ Ipl/9r- ,<,.' '-";,~_"'C.",,...~i""'-~ .... ......,' ~ , . ,._m" r ! f ....' - \ ,- - - ..".... ----,.. - , , -~-~'.~.~::1-~._-.