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HomeMy WebLinkAbout03-1088FEDERMAN AND PHELAN, LLP By: FRANK FEDERMAN, ESQ., Id. No. 12248 LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT, DATED AS OF MAY 1,2001, AMONG CREDIT-BASED ASSET SERVICING AND SECURITIZATION LLC, ACE SECURITIES CORPORATION, LITTON LOAN SERVICING LP AND U.S. BANK NATIONAL ASSOCIATION, C-BASS MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2001-CB2 4828 LOOP CENTRAL DRIVE HOUSTON, TX 77081-2226 Vo Plaintiff BRYAN K. CARL LOUISE A. CARL 315 RENO AVENUE NEW CUMBERLAND, PA 17070 ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM CUMBERLAND COUNTY Defendant(s) CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE NOTICE **THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. ** 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 Plaintiff. 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 Loan 0:8174559 B~ IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 et seq. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. 1. Plaintiff is U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT, DATED AS OF MAY 1, 2001, AMONG CREDIT-BASED ASSET SERVICING AND SECURITIZATION LLC, ACE SECURITIES CORPORATION, LITTON LOAN SERVICING LP AND U.S. BANK NATIONAL ASSOCIATION, C-BASS MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2001-CB2 4828 LOOP CENTRAL DRIVE HOUSTON, TX 77081-2226 The name(s) and last known address(es) of the Defendant(s) are: BRYAN K. CARL LOUISE A. CARL 315 RENO AVENUE NEW CUMBERLAND, PA 17070 who is/are the mortgagor(s) and real owner(s) of the property hereinafter described. On 10/7/94 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to MELLON BANK, NA which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No. 1236, Page 586. By Assignment of Mortgage recorded 8/20/01 the mortgage was assigned to PLAINTIFF which Assignment is recorded in Assignment of Mortgage Book No. 680, Page 1662. The premises subject to said mortgage is described as attached. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 07/01/2002 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. 6. The following amounts are due on the mortgage: o Principal Balance Interest 06/01/2002 through 03/11/2003 (Per Diem $15.17) Attorney's Fees Cumulative Late Charges 10/07/1994 to 03/11/2003 Cost of Suit and Title Search Subtotal $69,416.73 4,308.28 1,250.00 217.12 $ 550.00 $ 75,742.13 Escrow Credit 0.00 Deficit 2,570.02 Subtotal $ 2,570.02 TOTAL $ 78,312.15 The attorney's fees set forth above are in conformity with the mortgage documents and Pennsylvania law, and will be collected in the event ora third party purchaser at Sheriffs Sale. If the Mortgage is reinstated prior to the Sale, reasonable attorney's fees will be charged. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $ 78,312.15, together with interest from 03/11/2003 at the rate of $15.17 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. By: *, [ /s/FrancisrS. Hallfn/an [,e/' FRAh~ FEDERMAN, ESQUIRE LAWRENCE T. PHELAN, ESQUIRE FRANCIS S. HALL1NAN, ESQUIRE Attorneys for Plaintiff ~L THAT CF~RTAIN lot or tract of land situate in the Borough of New Cumberland, County of Cumberland and State of Pennsylvania bein~ Lo~ No; 14, Block "K' An the General Plan of George W. But~orff,~ addition to New Cumberlan.~, more Particularly bounded and described as follows: BEGI~IN~ at a ~oinc or post on =he east side of Reno Avenue, on the llne of Lot No. 13; =hence eastwardly and parallel with Lot No. 13, one hundred (140) fee=, to an alley; thence northwardly by the line of said alley, twenty-foyer (24) fe~= ~o a point; ~hence westwardly by ~he line of Lo= No. line o£ R~=no Avenue, twenty-four (2~) fee~ =o the place of HAVING TH~:~ON ERE~ED a ~wo and one-half s~o~ frame dwelltn~ house, and ~EING the sa~ ~remi~es which Robert F. Kohler by his deed dated April 14, 1966 and xecorded in the Cu~rland County Recorder of Deeds Office in Book Y-21, ~a~= 107, granted and conveyed ~to C~il C. D~mire and Emma Dunmlre, his wife. Emma ~. Dunmlre died on ~ ~ ~o whereby was vests(, solely in C~il C. Dunmlre by opera=ion of law, ~he ~r~tor her~in. · PREMISES BEING: 315 RENO AVENUE. VERIFICATION Denise Rivera hereby states that she is FC Processor of LITTON LOAN SERVICING mortgage servicing agent for Plaintiff in this matter, that she is authorized to take this Verification, and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are true and correct to the best of her knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. DATE: Denise Rivera for Litton Loan Servicing LP U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT, DATED AS OF MAY 1, 2001, AMONG CREDIT-BASED ASSET SERVICING AND SECURITIZATION LLC, ACE SECURITIES CORPORATION, LITTON LOAN SERVICING LP AND U.S. BANK NATIONAL ASSOCIATION, C-BASS MORTGAGE LOAN ASSET- BACKED CERTIFICATES, SERIES 2001-CB2, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-1088 CIVIL TERM Vo BRYAN K. CARL and LOUISE A. CARL, Defendants JURY TRIAL DEMANDED TO: NOTICE TO PLEAD U.S. Bank, National Association, Trustee c/o Francis S. Hallinan, Esquire You are hereby notified to file a written response to the enclosed Defendants' Preliminary Objection to Plaintiff's Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Attbrney for Defen,~ U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT, DATED AS OF MAY 1, 2001, AMONG CREDIT-BASED ASSET SERVICING AND SECURITIZATION LLC, ACE SECURITIES CORPORATION, LITTON LOAN SERVICING LP AND U.S. BANK NATIONAL ASSOCIATION, C-BASS MORTGAGE LOAN ASSET- BACKED CERTIFICATES, SERIES 2001-CB2, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-1088 CIVIL TERM BRYAN K. CARL and LOUISE A. CARL, Defendants Jury TRIAL DEMANDED DEFENDANTS' PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAIN Failure to Comply with a Rule of Court AND NOW COME the Defendants, Bryan K. Carl and Louise A. Carl, by and through their attorney, Joseph K. Goldberg, Esquire, and file this Preliminary Objection to the Plaintiff's Complaint, as follows: 1. Plaintiff filed a Compliant in Mortgage Foreclosure against the Defendants on March 12, 2003. 26, 2003. The Complaint was served upn the Defendants by the Sheriff on March According to the Complaint, the claim therein is based upon the failure to comply with the terms of a written agreement, i.e. a mortgage. 4. Pursuant to Pa. R.C.P. 1019(i), when a claim is based upon a writing, the pleader - the Plaintiff in this instance - is required to attach a copy of the writing to the Complaint, or explain why it is not available to the Plaintiff. 5. The Plaintiff failed to attach a copy of the mortgage to the Complaint, and did not provide an explanation why it was not available to the Plaintiff. 6. Pursuant to Pa. R.C.P. 1028(a)(1), the Complaint of the Plaintiff should be dismissed. WHEREFORE, the Defendants respectfully request that the Plaintiff's Complaint be dismissed. Respectfully submitted, Suite 106 Harrisburg, PA 17110 (717)703-3600 Attorney for Defendants ..CERTIFICATE OF SERVICF ', the undersigned, hereby certify that on the /~day of~/~?f,/~./ ,2003,1 served a copy of the foregoing Defendants' Preliminary Objection to Plaintiff's Complaint, by first-class mail, postage prepaid, upon the following: Francis S. Hallinan, Esquire Federman and Phelan, LLP One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 Attorneys for Plaintiff FEDERMAN AND PHELAN, LLP By: Frank Federman, Esquire, I.D. No. 12248 Lawrence T. Phelan, Esquire, I.D. No. 32227 Francis S. Hallinan, Esquire, I.D. No. 62695 One Penn Center at Suburban Station Suite 1400 Philadelphia, PA 19103-1814 .(215-563-7000 U.S. Bank National Association, as Trustee Under the Pooling and Servicing Agreement, Dated as of May 1, 2002, Among Credit-Based Asset Servicing And Securitization LLC, Ace Securities Corporation, Litton Loan Servicing LP and U.S. Bank National Association, C-Bass Mortgage Loan Asset-Backed Certificates, Series 2001-CB2 Plaintiff VS. Bryan K. Carl Louise A. Carl Defendant(s) Attomey for Plaintiff Court of Common Pleas Cumberland County Civil Division No. 03-1088 PRAECIPE TO WITHDRAW COMPLAINT, WITHOUT PREJUDICE, ANI] DISCONTINUE AND END TO THE PROTHONOTARY: Kindly withdraw the complaint filed in the instant matter, without prejudice, and mark this case discontinued and ended, upon payment of your costs only. Date Fra~lktfe~lerman, ~ . Esquire Lawrence T. Phelan, Esquire Francis S. Hallinan, Esquire Attorneys for Plaintiff U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT, DATED AS OF MAY 1, 2001, AMONG CREDIT-BASED ASSET SERVICING AND SECURITIZATION LLC, ACE SECURITIES CORPORATION, LITTON LOAN SERVICING LP AND U.S. BANK NATIONAL ASSOCIATION, C-BASS MORTGAGE LOAN ASSET- BACKED CERTIFICATES, SERIES 2001-CB2, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PEN N SYLVAN IA CIVIL ACTION - LAW NO. 03-1088 CIVIL TERM BRYAN K. CARL and LOUISE A. CARL, Defendants JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW PRELIMINARY OBJECTION TO THE PROTHONOTARY: Because the Plaintiff has dismissed this action, please withdraw the Preliminary Objection that was filed by the Defendants. Date: Respectfully su brn itt~e.~!~ Suite 106 Harrisburg, PA 17110 (717)703-3600 Attorney for Defendants CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the ~__~ day of //"/~/~ , 2003, I served a copy of the foregoing Defendants' Praecipe to Withdraw Preliminary Objection, by first-class mail, postage prepaid, upon the following: Francis S. Hallinan, Esquire Federman and Phelan, LLP One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 Attorneys for Plaintiff