Loading...
HomeMy WebLinkAbout03-1249IN ~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION Clyde L. Bertram and Linda K Bonner, 1023 York Road Dillsburg, PA 17019 PLAINTIFFS V. Beneficial Consumer Discount Company d/b/a Beneficial Mortgage Company 1634 South Market Sweet Elizabethtown, PA 17022 DEFENDANT FILENO.: 0 3 CIVIL ACTION: PRAECIPE FOR SUMMONS TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue summons in the above captioned action, which arises fi.om a mortgage loan and contract dispute. ~Writ of Summons shall be issued and forwarded to Attorney/Sheriff. Stephen K Portko, Esquire 101 South U.S. Route 15 Dillsburg, PA 17019 (717) 432-9706 Attorney for Plainfi~ SUMMONS IN CIVIL ACTION TO: Beneficial Consumer Discount Company d/b/a Beneficial Mortgage Company 1634 South Market Strut Elizabethtowrg PA 17022 YOU ACTION AGAINST YOU. ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN Oate:_~, 02.~.3 Pmthgno,t~/Clerk, Civil°Di,~ision by: ' / Deputy- SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2003-01249 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BERTRAM CLYDE L ET AL VS BENEFICIAL CONSUMER DISCOUNT R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: BENEFICIAL CONSUMER DISCOUNT COMPANY DBA BENEFICIAL MORTGAG but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of LANCASTER County, Pennsylvania, to serve the within WRIT OF SUMMONS On April 24th , 2003 , this office was in receipt of the attached return from LANCASTER Sheriff's Costs: Docketing Out of County Surcharge Dep Lancaster Co 18.00 9.00 10.00 43.46 .00 80.46 04/24/2003 So answers: as Klmne // Sheriff of Cumberland County DUSAN BRATIC & ASSOC Sworn and subscribed to before me this ~ day of Prothonota~y~ SHERIFF'S OFFIC 50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA 17608-3480 · (717) 299-8200 PROCESS RECEIPT, and AFFIDAVIT OF RETURN t. PLAINTIFF/S/ Clyde L. Bertram et al 3. DEFENDANT/S/ Beneficial Consumer Discount SERVE SHERIFF SERVICE ~ PLEAS-~-~¢pE HANY COPIES, Company ~ Writ of Summons 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO BE SERVED. Beneficial Const~ner Discount Company 6. ADDRESS (Street or RFD, Apartment No., City, Boro, Twp., State and ZIP Code) AT 1634 South Market Street Elizabethtown, PA 17022 7. INDICATE UNUSUAL SERVICE: ~ [] OTHER ~ Now, March ,~,~, I SHERIFF La_n_caste~--~ ~- , OF ~ COUNTY, PA., d_o~;l~re~ deputize the S, he~ff of County to execute this ~~.e_ re~D-~er~a~('~ding to law. This deputation being made at the request and risk of the plaintiff..~ ~~-_~ 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: SHERIFF Ot~ ~ UNTY O3nberland NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof. 9. SIGNATURE of ATTORNEY or other ORIGINATOR 110. TELEPHONE NUMBER 717 432-9706 ~ 3/.._.__20/0 3 STEPHEN PORTKO ESQ ~'~t. DATE 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed). CUMBERLAND CO SHERIFF'S OFFICE NOT WRITE BELOW THIS LINE -~ 13. I acknowledge receipt of the writ, NAME of Author zed LCSO Deputy or Clerk ~ Tf5. E xpir~t,on/Hearing d--'~ orcompfaintasindicatedabove, lr A-N'~ETTE WALTON (717) 295 3609 16. I hereby CERTIFY and RETURN that I [] have personally serve , ave egal evidence of service as shown in "Remarks" D have executed "Remarks", the writ or comp ant described on the individual co c r or ' , · . , . P ation etc at , own in p at on etc at the address inserted below by handm a TRUE a o or the address shown above or on the ~ndw~d as sh " g n TED COPY tl~ere~i ' ' ' ual company cor 17. [] I hereby certify and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc., named above. (See remarks below) o~individual served (if not shown above) (Pjkel.ationship to Defendant) ~e and ~le~ 20. Address of where served (complete only if different than shown above) (Street or RFD, Apartment No., City, Boro, Twp. State and Zip Code) 23. ATTEMPTS 24 Advance Costs 30. REMARKS: S.T.A.: See Remarks Below (No. 3( ate 1~ .21~? I (~'~ 22. Time ,*~ EDST MY ' - . WHITE - Issuing Authority 2. PINK - Attorney 3. CANARY - Sheriff's Office 4. BLUE - Sheriff's Office IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CLYDE L. BERTRAM and LINDA R. BONNER, Plaintiffs BENEFICIAL CONSUMER DISCOUNT: COMPANY, dlbla BENEFICIAL : MORTGAGE CO OF PENNSYLVANIA,: Defendant : CIVIL ACTION NO. 03-1249 (JURY TRIAL DEMANDED) 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 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 BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 AVISO Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en law paginas siguientes, usted tiene veinte (20) dias de plazo al partir de ia fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, ia corte tomara medidas y puede continuer ia demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiem que usted cumpla con todas law provisiones de esta demanda. Usted puede perder dinem o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE ELDINERO SUFICIENTE DE PAGAR TAL SERVICO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFlClNA CUYA DIRECClON SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASlSTENClA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CLYDE L. BERTRAM and LINDA R. BONNER, Plaintiffs BENEFICIAL CONSUMER DISCOUNT COMPANY, d/bla BENEFICIAL MORTGAGE CO OF PENNSYLVANIA, Defendant CIVIL ACTION NO. 03-1249 (JURY TRIAL DEMANDED) COMPLAINT I. Introduction 1. This is an action brought by homeowners against a lender with whom they unknowingly entered into an exorbitantly priced mortgage loan. Plaintiffs seek rescission and statutory damages under the Home Ownership and Equity Protection Act of 1994 (hereinafter "HOEPA"), 15 U.S.C. §§ 1602(aa) and 1639, the Truth in Lending Act, 15 U.S.C. § 1601 et seq. and § 1640(a), and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1, et seq., 2. Plaintiffs also seek a determination on the merits that (a) they have properly rescinded the mortgage held by Defendant and that Defendant has no valid secured or unsecured claim; (b) that Defendant's refusal to honor their valid rescission notice in accordance with TILA's requirements eliminates any alleged indebtedness to Defendant; and (c) that Defendant is required to return to them all monies they have paid in connection with the mortgage loan transaction which is the subject of this lawsuit. II. Parties 3. Plaintiffs Clyde L. Bertram and Linda R. Bonner are adult individuals who reside at 1023 York Road, Dillsburg, Cumberland County, Pennsylvania. 4. Defendant Beneficial Consumer Discount Company d/b/a Beneficial Mortgage Co. of Pennsylvania (hereinafter "Beneficial") is, to the best of Plaintiffs' knowledge, a corporation which conducts retail consumer loan operations in Pennsylvania through numerous branch office. Beneficial's office is located at 1634 South Market Street, Elizabethtown, Pennsylvania. 5. At all relevant times, Beneficial, in the ordinary course of its business, regularly extended or offered to extend consumer credit payable by written agreement in more than four installments or for which a finance charge is imposed. II1. Factual Allegations 6. Plaintiffs own the home at 1023 York Road, Dillsburg, Cumberland County, Pennsylvania, which is their principal dwelling. Until the transaction with Beneficial, the home was subject to a mortgage with Green Point Mortgage, which had an unpaid balance of $127,791.94, with a lower monthly payment than Beneficial's loan. 7. On June 26, 2001, the date of settlement, Plaintiffs entered into a consumer credit transaction with Beneficial in which Beneficial extended consumer credit which was subject to a finance charge and which was payable to Beneficial. A true copy of the "Loan Repayment and Security Agreement" is marked Exhibit A attached hereto and incorporated herein by reference. 8. As part of this consumer credit transaction, Beneficial acquired a security interest, namely a mortgage, in the premises located at 1023 York Road, Dillsburg, Cumberland County, Pennsylvania, which is used as the principal dwelling of the Plaintiffs. A true copy of the "Mortgage" is marked Exhibit B attached hereto and incorporated herein by reference. 9. Prior to settlement date, Plaintiffs had communicated with Beneficial only by telephone, discussing that they wanted to refinance their mortgage to lower their payments. Plaintiffs inquired about applying for a new mortgage loan. 10. Plaintiffs submitted their information over the telephone, which Beneficial used to complete an application for a mortgage loan. Plaintiffs were never provided with a copy of either the application form or the one completed for them by Beneficial. 11. Plaintiffs had no further contact with Beneficial until they were subsequently informed that they had been given the loan commitment. The loan terms were not disclosed to Plaintiffs until the loan closing. 12. Beneficial required Plaintiffs to consolidate $8,573.82 in unsecured loans or credit card debt into the new mortgage loan and conditioned the loan upon payment of a $6,746.00 single premium credit life insurance policy. Beneficial also persuaded them to borrow an additional $2,944.62 in cash, and then imposed approximately $13,185.27 in additional points, fees and settlement charges. As a result, the principal amount of the new loan was $159, 241.65 and the payments were $1,512.92 per month for 360 months, with a disclosed annual percentage rate of 11.944%. 13. The transaction upon which this claim is based was a consumer credit transaction subject to the federal Truth in Lending Act, 15 U,S.C. §9 1601 et seq. ("TILA"), and P,egulation Z thereunder, 12 C.F.P,. § 226. 14. At all times relevant hereto Defendant was a creditor within the meaning of the TILA, 15 U.S.C. 99 1601 et seq. IV. Causes of Action Count 1 (Violation of the HOEPA) 15. The allegations in paragraphs 1 through 14 are incorporated herein by reference. 16. The above-mentioned consumer credit transaction was a high rate mortgage within the meaning of HOEPA, 15 U.S.C. 9 1602(aa)(1)(B), in that the total "points and fees" Beneficial charged Plaintiffs exceeded 8 percent of the total loan amount. 17. HOEPA requires every creditor, extending credit on High Point Mortgages as defined under 15 U.S.C. 9 1602(aa)(1)(B), to provide the following disclosures, in "conspicuous" type, not less than three business days prior to closing: · "You are not required to complete this agreement merely because you received these disclosures or have signed a loan application." · "If you obtain this loan, the lender will have a mortgage on your home. You could lose your home and any money you have put into it, if you do not meet your obligations under the loan. See 15 U.S.C. § 1639(a)(1); Reg. Z § 226.32(c). For fixed-rate loans, the creditor must also accurately disclose the annual percentage rate and the amount of the regular monthly payment. 18. Beneficial did not furnish the above-required HOEPA disclosures to Plaintiffs at least three days prior to their closings. 19. HOEPA also prohibits a creditor, extending credit on High Point Mortgages as defined under 15 U.S.C. § 1602(aa)(1)(B), from engaging in "a pattern or practice of extending credit to consumers based on the consumers' collateral without regard to the consumers' repayment ability, including their current and expected income, current obligations and employment." 15 U.S.C. § 1639(h); Reg. Z § 226.32(e)(1). Upon information and belief, Beneficial consistently and continuously violates the above statutory prohibition. 20. HOEPA also prohibits a creditor, extending credit on High Point Mortgages as defined under 15 U.S.C. § 1602(aa)(1)(B), from providing "for an interest rate applicable after default that is higher than the interest rate that applies before default." 15 U.$.C. § 1639(d); Reg. Z § 226.32(d)(4). Beneficial violated said prohibition against increased default interest rates in its mortgage loan transactions with the Plaintiff. Upon information and belief and based upon the terms of Beneficial's standard form Notes and Riders as described herein, Beneficial consistently and continuously violates the above statutory prohibition. 21. HOEPA also prohibits a creditor, extending credit on High Point Mortgages as defined under 15 U.$.C. § 1602(aa)(1)(B), from providing a mortgage that contains "terms under which a consumer must pay a pre-payment penalty for paying all or part of the principal before the date on which the principal is due." 15 U.S.C. § 1639(c); Reg. Z § 226.32(d)(6), (7). Beneficial violated said prohibition against pre-payment penalties in its mortgage loan transaction, as described herein. 22. Plaintiffs believe and therefore aver that Beneficial required or induced them to borrow substantially more money than they were seeking, and in an amount beyond their ability to repay, based primarily on Beneficial's evaluation of the amount of Plaintiffs' equity in their home. 23. Plaintiffs believe and therefore aver that Beneficial required or induced them to purchase a single premium life insurance policy and then saddled them with higher annual interest and higher payments than what they had paid before refinancing and above the rate they would have been charged elsewhere. 24. Further, Plaintiffs believe and therefore aver that the loan approved by Beneficial exceeded the appraised value of their home by nearly $20,000.00. 25. Because the transaction described herein met the HOEPA definition of a high rate mortgage, the transaction was subject to additional disclosure requirements that must be provided three days in advance of the consummation of the transaction. 15 U.S.C. § 1639(b). 26. Beneficial did not furnish these required HOEPA disclosures to Plaintiffs three days prior to their settlement. 27. The loan extended to Plaintiffs includes abusive terms prohibited by HOEPA, including: i.e. penalty interest rates upon default, a prepayment penalty and invalid mandatory arbitration clause. 28. In connection with the consumer loan transaction Defendant gave to Plaintiffs a copy of the disclosure statement, a copy of which is attached hereto as Exhibit C. 29. Said disclosure statement does not contain all of the material disclosures required by the federal Truth in Lending Act and by Regulations Z, and is missing, inter alia, the following material disclosures: a. The disclosure statement fails to include the cost of credit life insurance in the finance charge even though: i. Such insurance was required by Plaintiff as a condition of the loan; and even though ii. The Debtors did not give a separately signed indication of their desire for credit life insurance. 12 C.F.R. § 226.4(d)(1)iii). b. The notice fails to disclose the service charge as a prepaid finance charge as required by 12 C.F.R. § 226.18(c). c. The notice fails to itemize the components of the amount financed as required by 12 C.F.R. § 226.18(c). d° As a result of the failure to properly disclose the above-mentioned items as finance charges the notice misstates the amount financed, the finance charge and the APR. In violation of 12 C.F.R. § 226.17(a) the notice misleadingly states that credit insurance was not required by the lender when in fact it was a specific precondition of the loan, and Defendant would not extend credit if credit insurance was not purchased. 30. Beneficial failed to deliver all the "material" disclosures required by the Truth in Lending Act to Plaintiffs in connection with this transaction. In particular, the disclosure violations include, but are not limited to: (a) Failing to properly and accurately disclose the "amount financed," using that term in violation of Regulation Z § 226.18(b) and 15 U.$.C. §1638(a)(2)(A); (b) Failing to clearly and accurately disclose the "finance charge," using that term, in violation of Regulation Z § 226.4 and 226.18(d) and 15 U.S.C. §1638(a)(3); and (c) Failing to clearly and accurately disclose the "annual percentage rate," using that term in violation of Regulation Z § 226.18(e) and 15 U.S.C. §1638(a)(4). The Plaintiffs have a continuing right to rescind the transaction until receipt of all "material" disclosures described above, pursuant to 15 U.$.C. §1635(a) and Regulation Z, § 226.23(a)(3). 31. Because of the violations of HOEPA and TILA listed above, Plaintiffs retained the right to rescind the transaction up to three years after its consummation. 32. Plaintiffs rescinded the transaction by sending a notice of rescission to the Defendant, by U.S. Mail. 33. More than twenty days have passed since Plaintiffs rescinded the transaction and Beneficial has failed to take any action necessary or appropriate to reflect the termination of any security interest created under the transaction, as required by 15 U.S.C. § 1635(b) and Regulation Z, § 226.23(d)(2). In addition, Beneficial has failed to return to the Plaintiffs any money or property given by the Plaintiff to anyone, including Beneficial, as required by 15 U.S.C. §1635(b) and Regulation Z, § 226.23(d)(2). WHEREFORE, Plaintiffs pray for the following relief, pursuant to 15 U.S.C. §§ 1635(a), 1639(j), and 1640(a): a) Rescission of the transaction, including a declaration that the Plaintiffs are not liable for any finance charges or other charges imposed by Defendant; b) A declaration that the security interest in Plaintiffs' property created under the transaction is void, and an order requiring Defendants to release such security interest; c) Return of any money or property given by the Plaintiffs to anyone, including the Defendant, in connection with the transaction; d) Statutory damages of $4,000 (consisting of $2,000 for the disclosure violation and $2,000 for the failure to rescind); e) Additional damages pursuant to 15 U.$.C. § 1640(a)(4) in the amount of all finance charges and fees paid by Plaintiffs; f) Forfeiture of return of loan proceeds; g) Actual damages in the amount to be determined at trial; h) An award of reasonable attorney's fee and costs; and i) Such other relief at law or equity as this Court may deem just and proper. Count 2 (Violation of the TILA) 34. Plaintiffs repeat and reallege all paragraphs above as if set forth herein. 35. Plaintiffs' transaction was an extension of consumer credit by a creditor subject to TILA. 36. Since Plaintiffs' mortgage loan transaction involved the creation of a security interest in the consumers' residence other than for purposes of purchasing or constructing that residence, the mortgage loan transaction was also subject to the rescission provisions of TILA, 15 U.$.C. 9 1635. 37. TILA requires that a creditor deliver to each owner of a premises, prior to closing, accurate disclosures of the following material terms, among others: a) the"APR" or "annual percentage rate" including applicable variable-rate disclosures; b)the "finance charge(s)"; and c)the "amount finance." 15 U.S.C. 9 1638. Where such information is not accurately disclosed, a borrower is entitled to rescind a transaction for up to three years after consummation of the transaction. 15 U.S.C. 9 1635(0. 38. TILA also requires that a creditor deliver to each owner of the premises, prior to closing, two notices of rights to rescind, which are "clearly and conspicuously in writing, in a form that the consumer may keep." 15 U.S.C. 9 1635(a); Reg. Z, 99 226.15(b) and 226.17(a)(1). Where those notices are not provided, or the borrower's right to rescind is eviscerated by actions taken before or during the post-closing, three day rescissionary period, a borrower is entitled to rescind a transaction for up to three years after consummation of the transaction. See Regulations Z, 9 226.15(c). 39. As a result of Beneficial's instruction to Plaintiffs to forego making payments on their pre-existing loan, Beneficial negated Plaintiffs' post-closing statutory rescission period. 40. As a result of Beneficial's failure to provide at least one copy containing accurate TILA disclosures, and two copies of the required TILA notices of right to rescind, to each title owner of the property, Beneficial violated TILA, and Plaintiffs were not provided with their proper post-closing statutory rescission period. 41. The above violations of TILA give Plaintiffs an extended right of rescission pursuant to 15 U.S.C. 9 1635 and Regulation Z 9 226.23, as a plaintiff has a continuing right to rescind a transaction until receipt of all "material" disclosures pursuant to 15 U.$.C. 9 1635 and Regulation Z 9 226.23. WHEREFORE, as a result of the above described violations, pursuant to 15 U.S.C. § 1635 and 1640(a), Plaintiffs request that this Court enter judgment in their favor and against Beneficial, by: a) Rescission of the transaction, including a declaration that the Plaintiffs are not liable for any finance charges or other charges imposed by Defendant; b) A declaration that the security interest in Plaintiffs' property created under the transaction is void, and an order requiring Defendants to release such security interest; c) Return of any money or property given by the Plaintiffs to anyone, including the Defendant, in connection with the transaction; d) statutory damages of $4,000 (consisting of $2,000 for the disclosure violation and $2,000 for the failure to rescind); e) Additional damages pursuant to 15 U.S.C. § 1640(a)(4) in the amount of all finance charges and fees paid by Plaintiffs; f) Forfeiture of return of loan proceeds; g) Actual damages in the amount to be determined at trial; h) An award of reasonable attorney's fee and costs; and i) Such other relief at law or equity as this Court may deem just and proper. Count 3 (Violation of the CPL) 42. Plaintiffs repeat and reallege all paragraphs above as if fully set forth herein. 43. At all times relevant hereto, defendant was a "person" as defined in Section 201-2(2) of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73. P.S. Section 201-1 et seq. (hereinafter "CPL"). 44. The Defendant has violated the provisions of the CPL with respect to Plaintiffs by engaging in consumer-oriented acts and practices which were deceptive or misleading in a material way, and which were unfair, deceptive, and contrary to public policy and generally recognized standards of business, including but not limited to: (a) Misrepresenting to Plaintiffs -- or failing to inform Plaintiffs about - the terms of their loan, and the nature and details of the transaction they were entering into, including but not limited to: the amount of monthly payments, the interest rate on the loan, the costs of the loan, the distribution of the loan proceeds, and the availability of cash that would be paid from the loan proceeds; (b) Misrepresenting to Plaintiffs that the mortgage loan transaction had benefits that they did not have, or failing to inform Plaintiffs that said transaction had little or no benefits, which did not merit entering into the transaction given their padded costs and interest rates; (c) Fraudulently inducing Plaintiffs to enter into a mortgage loan transaction that they did not have the ability to pay; (d) Failing to provide Plaintiffs with the appropriate and/or accurate pre- closing and closing disclosures and notices of rights to rescind, including but not limited to disclosures required by TILA and HOEPA; (e) Preventing Plaintiffs from examining and reading the relevant documents at closing; (f) Misrepresenting to Plaintiffs that the points and fees payable from the proceeds of the mortgage were bona fide and reasonable and necessary for the extension of credit, or failing to inform Plaintiffs that they were not; (g) Requiring Plaintiffs to execute and/or executing on behalf of Plaintiffs inaccurate documents in order to close their loans; (h) Effectively negating Plaintiffs' statutory rights to rescind by failing to provide the appropriate pre-closing and/or closing disclosures, and/or by inducing Plaintiffs to forego making monthly payments on pre- existing mortgages or other debts, prior to the end of the effective time period for rescinding their loan -- a practice known as "spiking"; (i) Failing to disclose to Plaintiffs the true distribution of loan proceeds; (J) Failing to disclose to Plaintiffs that certain debts that would be paid out of loan proceeds, which Plaintiffs would not have had to pay during their lifetimes unless they sold their Premises, would be paid out of the loan proceeds, and would thereby place their home in jeopardy of foreclosure; 47. While representing to Plaintiffs that consolidating their existing debt and prior mortgage would be advantageous, Beneficial omitted the material fact that it would charge substantially higher points and fees for first mortgages than what Plaintiffs were already paying. 48. Plaintiffs suffered serious injury and damages as the proximate result of Beneficial's above-described deceptive and unfair practices, including but not limited to: excessive loan fees and costs and emotional distress concerning possible loss of their home. 49. Beneficial is liable to Plaintiffs for actual and punitive damages under Pennsylvania common law, as well as treble damages, attorney fees and other appropriate relief, pursuant to 73 P.S. § 201-9.2. WHEREFORE, Plaintiffs demand judgment against Defendant for treble damages in the amount of at least $39,555.81 pursuant to 73. P.S. Section 201- 9.2 plus reasonable attorney's fees and court costs and expenses incurred herein. Count 4 (Unconscionability and Bad Faith) 50. Plaintiffs repeat and reallege all paragraphs above as if fully set forth herein. 51. As described below, Beneficial systematically engaged in procedural and substantive unconscionability in violation of Pennsylvania's common law prohibiting unconscionability and bad faith in consumer transactions. 52. Prior to and during the time of the loan transaction, there existed a disparity in bargaining power between Plaintiffs (on the one had) and Beneficial (on the other hand). Plaintiffs are unsophisticated consumers. Beneficial is part of a sophisticated, publicly traded, multi-million dollar finance company that has engaged in home mortgages and home equity financing over a vast time period. 53. Procedurally, Beneficial intentionally misrepresented, or failed to disclose, material information concerning the nature and terms of the Plaintiffs' loan, thereby depriving such individuals of material information of which they were unaware, and also depriving those individuals of information that might have reduced the disparity in bargaining power between the parties. 54. Procedurally, Beneficial also failed to provide to Plaintiffs certain notices of rights to rescind, thereby depriving those individuals of their statutory rights to cancel their contracts, and also depriving those individuals of a procedure that might have reduced the disparity in bargaining power between the parties. 55. Procedurally, Beneficial also completed a loan application for, or extended credit to Plaintiffs on the basis of the value of those individuals' home, rather than on the basis of their ability to pay. In so doing, the Defendant knew from information that they had obtained that Plaintiffs were unlikely to be able to make their mortgage loan payments or the Defendant failed to obtain sufficient information to determine if Plaintiffs would be able to make their mortgage loan payments. 56. Procedurally, Beneficial also induced Plaintiffs to attend their closing without an attorney who could explain to the Plaintiffs the true nature and terms of their loan, protect those individuals from the defendant's unconscionable practices, and who could have reduced the disparity in bargaining power between the parties. 57. Procedurally, Beneficial also induced Plaintiffs to execute inaccurate documents in order to obtain their loan. 58. Procedurally, Beneficial also prevented Plaintiffs from reviewing and thereby better understanding their loan documents at their closings. 59.Procedurally, Beneficial misrepresented, or failed to disclose, to Plaintiffs that their mortgage loan transactions contained padded points and fees that were not reasonably related to the actual services rendered. Moreover, the Beneficial arranged for said points and fees to be paid to themselves from Plaintiffs' proceeds obtained from their closings. 60. Procedurally, Beneficial also engaged in high pressure sale tactics that were designed to, and did, induce Plaintiffs to enter into fraudulent loan transactions. 61 .Given the disparity of bargaining power between the parties, and the imbalance in acumen and understanding of the parties, the above identified procedural unconscionability was intended to, and did, cause Plaintiffs to have a lack of meaningful choice in connection with their mortgage loan transaction. 62.Substantively, the loan terms provided by the Defendant: a) skimmed off the equity in Plaintiffs' home; b) provided little or no economic benefit to those individuals; c) were padded with excessive points and fees that were paid to defendant and affiliated third parties, and that were not reasonably related to the services actually rendered by defendant and those affiliated third parties; d) contained base interest rates that were not commensurate with the usual and customary rates charged for sub-prime loans, and which did not represent Beneficial's actual economic risks and was higher than Plaintiffs' credit warranted; e) contained terms that were prohibited by HOEPA and TILA; and f) placed Plaintiffs in jeopardy of losing their home, which was the collateral for their loan. 63.The above described substantive unconscionability rendered the mortgage loan contract that was entered into unreasonably favorable to the defendant. 64. Plaintiffs reasonably relied on defendant's above described unconscionable practices, which proximately caused them injury. 65.The above described unconscionable practices render void and unenforceable the mortgage loan transaction entered into between Beneficial and Plaintiffs. 66.As a result of the above described violations, Plaintiffs hereby request that this Court: (a) Declare Plaintiffs' mortgage loan transactions with Beneficial void and unenforceable; (b) Grant whatever further monetary or equitable relief this Court deems appropriate to Plaintiffs and against the Defendant. WHEREFORE, Plaintiffs request the following relief: A. An order (i) entering declaratory relief of rescission for the Plaintiffs, (ii) voiding any lien and/or any security interest obtained by Beneficial against the property of the Plaintiffs, (iii) providing actual, statutory and enhanced damages, attorneys' fees and costs to the Plaintiffs, under HOEP^ and TILA; An Order providing equitable and monetary damages to Plaintiffs under the CPL, including treble damages, reasonable attorney's fees and costs; An Order declaring Plaintiffs' mortgage loan transactions void and unenforceable due to their unconscionability under Pennsylvania state law; D. Such other relief at law or equity as this Court may deem just and proper. V. Demand for Jury Trial 67. Plaintiffs respectfully demand trial by jury on all Counts to which they are so entitled. WHEREFORE, Plaintiffs respectfully demands judgment against Defendant for rescission and in an amount sufficient to compensate them for damages incurred by them, including (1) Actual damages; (2) Statutory damages pursuant to 15 U.S.C. §§ 1635(a), 1639(j), and 1640(a): (3) Statutory damages pursuant to 73 P.S. § 201 - 9.2, including treble damages; (4)Attorneys' fees and costs; and (5) Such other and further relief as the Court deems proper. Dated: Respectfully submitted, Stephen K. Portko, Esquire, I.D. #34538 Bratic & Portko 101 South U.S. Route 15 Dillsburg, Pennsylvania17019 (717) 432-9706 Attorney for Plaintiffs VERIFICATION .., hereby acknowledge that I am and that I have read , and the facts stated thcrcin are true and correct to the best of my knowledge, information and belief. I understand that any~falsc statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. Dated: /V\c~./ 2-'7 , "LOc) 3 LOAN REPAYMENT AND SECURITY AGREEMENT (Page I of 3} LENDER (called "We", 'Us", 'Our") BENEFICIAL CONSUMER DISCOUNT COMPANY DIB/A BENEFICIAL MORTGAGE CO OF PENNSYLVANIA 1634 SOUTH MARKET STREET ELIZABETHTOWN PA 17022 BORROWERS (called "You", "Your") BONNER. LINOA R SS# 171388236 BERTRAM. CLYDE L $S# 160400342 1023 YORK RD DILLSBURG PA 17010 LOAN NO: 711~2§-54~70§ o~ OFLO~ m~#s SCHERZO 0612BI2001 UFEINSPI~¥NJM O~AI~ INSFREMIlaM $ §,~46,00 I ,512 02 YOU ARE GIVING US A SECURITY INTEREST IN THE REAL ESTATE LOCATED AT THE ABOVE ADDRESS. REQUIKED INSURANCE. You must obtain insuronc~ for term of loan c,~ring s~urity for t~s loan as iadi~a~ by the w~d "YES' ~ow, nami~ ~ as ~ Pay~ YE5 Tille insuran~ un r~l esm~ ~urity, Y E S Fife ~d exten~ coverage insuran~ ~ ~al ~te ~urity. You may obtain any raquir~d insuron~ from anyonu you choosu and may assign any othur poligy of ~uran~ ~u own to ~v~. tho s~urity for th~ loon. (~ "g~urity" paragraph a~e for ~ri~on of smurity ~ ~ insure.) NOTIC~ THE FOLLO~NG PAGES CONT~N ADDI~ONAL CONTRA~ TERMS. "914C941A4198C~9000P~SS81 I~NBO~R ~ ~l Gl~ PABBSB11 ! LOAN REPAYMENT AND SECURITY AGREEMENT (Page 2 of PAYMENT. In return for your loan dmeribed below, you agree to pay us, the Prindpai and Interem computed at the Contract Ra~e (ss stated on page one). Principal is Amount Financed, plus The F~e. You shell pay us monthly payments, at ol~r business address or other address given you. Ii more than one Borrower is named on page one, we may enforce this Contrac~ against all, or any Borrowers, but not in a combined amount greater than the al~ount owed. Each payment will be first applied to any Late Chargea, then to Interest at'the Contract l~ate for the actual time ou~'tsndlng, and the remainder to your unpaid Principal. DATE ON WHICH INTEREb~ BEGINS. If you do not caficel this loan, the date on which Interest begins, payment dates, and effective dn~e of ir~urance purebred are pozt~ned by the number of days from this contract's date to date you receive this loan. AD]USTMENT TO CONTRACT RATE. The Contract Rate, as shown on page one, will decrease by one quarter of one percent (.25%) at the end of the 3rd year (36th month}; the 4th year (48th month) and the 5th year (60th month) (collectively the 'Rate Reduction"), if all payments are m~de within 30 days of their due date, and you have not filed a petition under the U.S. Bankruptcy Code during the montl{s preceding the Rate Reduction. The Rate Reduction will take · ! effect no later than the first payment due date following thei36th, 48th, and 60th month anniversary dates [rom the date of the contract. Even if the rate is decreased, ~he monthly payment will not b~ adjusted, thu~ the total loan amount will be paid in full sooner than the final pa:~'mvnt due date shown o~ page one, assuming ali payments are made on their due date. Notwithstanding anything to the contrary in this paragraph, ,if, before any Rate Reduction, any payment is made more than 30 days after the due date, or you have filed a petition under the U.S. Bankruptcy Code. you will not receive the Rate Reduction following such event. PAY-OUTS. You agree to pay-ou~s of Amount Financed. as shown on Truth-In-Lending disclosure form. If pay-outs change because loan closing is d~layed, (a) you shall pay additional amounts due at closing, or (b) your cash or check will be reduced to cover additional pay-outs. PREPAYMENT. Subject to the Prepayment Penalty desc4ribed below, you may prepay your loan at any time. If you prepay before the [in~l due date, Points are fully earned wi{eh this loan is made and you will not receive a refund nf that part of the Firumce Charge consisting of Points. PREPAYMENT PENALTY. If you prepay the entire outstanding balance of your Account at any time within five (5) years of the loan agreement date, you agree to pay a prepayment penalty equal to six (6) months in,a~rest at the Contract Rate (as stated on page one) of the original Amount FiMneed. No prepayment penalty will be imposed iF this loan is paid-off with the proceeds from another loan with us. LATE CHARGE. If you don't pay any payment in full within 15 days after it's due, you will also pay ~ late charge equal to 10% of ~he monthly payment or S29, whichever is greater. BAD CHECK CHARGE. We will charge you a fee of $20 if any payment cheek is returned because of insufficient funds or is otherwise dishonored. You agree that we may deduct this .charge from a monthly payment. SECURITY. There is a mortgage on your reft estate, locat&l at your address shown on pat-. one unless a different addre~ is stated. You agree to give us a security interest in the real estate as described in the Mortgage/Deed of Trust. PROPERTY INSURANCE: A. YOUR OBLIGATION TO INSURE. You shall keep t? s~ructures located on the nmi properly securing this loan insured against damage caused by fire and other physical hizards, name us as a loss payee and deliver to us a loss payable endorsement. If insurance covering ~he real property is cancelled or expires while the loan is outstanding and you do not reinstate the coverage, we may obtain, at our otXion, hazard~ insurance coverage protecting ,)ur interest in the real property as outlined below. B. LENDER'S RIGHT TO PLACE HAZARD INSURANCE. You authorize us, at our option, to obtain coverage on the Proper~ in an amount not greater than the outstanding balance, of principel and interest on the loan or, if known to be less, the replacement value of the Property, in the event that yo,fl fail to maintain the required hazard insurance outlined above or fail to provide adequate proof oF its existence. You autho[rize us to charge you for the co.,;ts of this insurance and add the insurance charges to your loan. The Insurance charges will Be added u) the unpaid balance of the loan which accrues interest at the Conlract Ra~e. Thc addition of the insuiance charges due might ineresse the amount of your final instillment. The cost of Lender placed hazard insurance might be higher than the cost of standard insurance protecting the property. The' Lender placed insurance will not insure th~ contents of the property or provide liability coverage. The insurance might not be the lowest co~t coverage of its type available and ~ou agree that we have no obligation ~o obtain the NOTICE: THE FOLLOWING PAGE CONTAINS ADDITIONAL CONTRACT TERMS. ! 11-30-99 RE .~1 ,,, ,- -,,,, "1~ 14C941A4198CEAgOOOPAB$$G120~'S01~dER ?" (~tlt161NAL PAB65812 LOAN REPAYMENT AIqD SECURITY AGREEMENT (Page lowest co~t coverage. We or an affiliated company mil~ht receive some benefit (i.e..commission, service fee, expense reimbursement, etc.) from the placement of this insurance and you will be charged for the full cost of the premium without reduction for any such benefit. If at any time after we have obtained this iusurance,.you provide adequate proof that you have subaequ~ttly purchased the t-eq~red coverage, we will cancel the coYerage we obtained and credit any unearned premiums to your loan. DEFAULT. If you don't pay on time or fail to keep any required insurance in force, or if permitted in the event of default under the Mortgage, (1) all your payments may become due at once and, (2) without notifying you before bringing suit, we may sue you for the entire unpaid balance of Principal and accrued Interest and (3) any judsment in our favor may include our reasonable attorney's fee and court costs as determined by ~e court. You agree that, should we obtain judgment agains~ you, a portion of your disposable esrnings may be attached or garnished (paid to us by your employer), as provided by Federal law. You agree to pay interest on any judgment at the Contrac~ Rate. EXCHA~(3E OF INFORmATIOn. You understand that from time to time we may receive credit information concerning you from others, such as stores, other lenders, and credit reporting agencies. You authorize us to share any information, on a regular basis, we obtain related to your Account, including but not limited to credit ~)rts and insurance information, with any of our- affiliated corporations, subsidiaries or other tlti~l pa~:ies. The uses of this information may include an inquiry to determine if you qualify for additional offers of credit. You also authorize us share any information regarding your Account with any of our affiliated corporations, subaidlarlcn or other third part,cs. Yon may prohibit the sharing of such information (except for thc sharing of information about transactions or experiences between us and you) by sending a written reque~! which contains your full name, Social Security Number and Address to us at P.O. Box 1547, Chesapeake, VA 23320. If you fail to i*ulflll the terms of your credit obligation, a negative l~-port reflecting on your credit record may bc submitted to a Credit Reporting Agency. You agree that thc Department of Motor Vehicles (or your state's equivalent of such department) may release your residence add~c~ to us, should it become necessary to luca'~e you. You agree that our supervisory personnel may listen to telephone c~lls between you and our representatives in order m evaluate the quality of our service ~ you. OPTIONAL INSURANCE. Optional. credit insurances and any required irmurance disclosures are attached to this Agreement and are incorporated herein by reference. ALTERNATIVE DISPU~i~. RESOLUTION AND OTHER RID]~RS. ~he terms of the Arhitration Agreement and any other Rfders si~ned as part of this loan transaction are incorporated into this Agreement by r~ference. APPLICABLE LAW. This loan is made at an agreed rate authorized by Section ~01(a), l~trt A, Title V, Public Law 96-2~1, also known as Section l?~f-7 (a), Title 12, United States Code (USC). This A~reement also qualifies ns an -*alternative mortgage transaction" under the Alternative Mortgage Transaction Parity Act section of the ~arn-St. Germain Depository Institutions Act of 1982, Sections 3801 through 3806, Title 12, USC. Regulations issued by the Office of Thrift Supervision, Depal-tment of the Treasury, also ~overn. If you do not pay the full amount of an instalment when it is due, and we intend to foreclose on the Mortgage, we mt~'t comply with the l~ovis~ons of Section 403 and 404 of the Act of lanuary $0, ]~74, which is known as Act No. 6, and thc pro',~sions of the Homsowner's ~.rnergcncy ]V[orc~tge A~sistancc Act (Act No. ANY ADVANCI~ OF FUNDS PURSUANT TO THIS LOAN RI~PAYMENT AND SECURITY AGREEMENT AN]) THE ~ORTGAGE WHICH SECURES THE AGREEMENT MAY, IN THE EVENT OF ANY DEFAULT, RESULT IN THE LOSS OP YOUR HOME OR OTHER REAL PROPI~.RTY PLEDGED AS SECURITY FOR YOUR LOAN. YOU HAVE RECEIVED A COMPLETE COPY OF THIS AGRi~-EMENT AND THE TRUTH-IN-LENDING DISCLOSURES. BORROWERS: ..~ _/. ~.,, -~ / IBBmmaiililmmmaiissamgllmla 11-30-99 RE SI 1ST MTG W/PPP XB14C$41A4196CEAg0O0PPt9658130~NBOMqER ~ ORIGINN. .(SEAL) PABG5813 ': q oo c 7.1EGLEp, COUNTy- ~ IF BOX IS CHECKED, TIIIS MORTGAGE IS AN OPEN-END MORTGAGE AND SECURES FUTURE ADVANCES. THIS MORTGAGE is made this ~y 26TH ' of JUNE 2001 , between the Mortgagor, CLYDE N. BERTRAM AKA CLYDE L. BERTRAM MO LINBA BONNER, BOTH SII~LE; JITIRIS (herein "Borrower') and Mortgagee. BENEFICIAL CONSI.I~R DISI~UNT CCNPANY DIBIA _RENEF I C I AL MORTSA(3E CO OF. PENNSVLVAN I A a corporation organized and etisting under the laws of PENNSYLVANIA add.ss is 1634 SOUTH ~T STREET, ELIZABETHTOWN, PA 17022 , who~o (herein "Lender "). The following paragraph preceded by a checked box is applicable. F~ WHEREAS, Borrower is indebted m Lender in khe principal sum of $ l~q, 241. ~ evidenced by Borrower's Loan Repayment and Security Agreement or Secondary Mortgage Loan Agreement da'md JUNE 26. 2001 and any extensions or renewals thereof (herein 'Note."), providing for monthly installments of principal and interest, including any. adjustments to the am6~r~t of paym.ents or the contrac: rate if thst rate is variable, with the. balance of the indebtedness, if not sooner paid, d~ and payable on JUNE 26, 2031 ; [~ WHEREAS, Borrower is indebted to l~nder in th~ principal sum of $ , or so much thereof as may be advanced pursuant to BorroWer's Revolving l.~an Agreement dated and extensions' and renewals thereof (herein "Note"), providing for monthly installments, and interest at ~he rate and under the terms specified in the Note, including any adjustments in the interest rare if :hat 'rate is variable, and providing for a credit limit stated in the principal sum above and an initial advance of $ ; TO SECURE to Lender the repayment of (1) the indebtedn~ evidenc~ by the Not~, with inU~'est thereon, indud~g ~y in~ if ~o contract ra~ is v~iable; {2} futu~ adv~ ~d~ ~y Revolving ~ A~ment; (3) ~e ~ym~t of all o~or ~ms, with into~ lh~ ad~ in a~or~n~ herewith ~ pmt~ the ~ufiW of l~M~ga~;..~nd (4) the ~rfo~ee of the cov~an~ . _ and a~m~n~ of ~o~er ~er~n ~b~, Bo~row~ ~ h~by m~ge, ~nt ~d qonwy to ~ndee and ~n~'s a~c~m and ~ the following ~i~ ~y loca~ in ~e ~unty of C~R~ Commonw~th of Pe~ivania: ~L T~T CERTAIN PROPERTY SI~TD IN ~ ~SHIP OF MO~OE IN ~ ~Y OF ~ER~ ~ ~O~~ OF p~SYLV~IA, BEING MORE ~LY DESCRIBED IN A DEED DATED'03/28/2001 .~ RECORDED 0~/02/2001, .~ONG ~ ~ RECORDS OF T~ CO~ ~ STATE SET FORTH ~O~, IN DEED VOL~E 241 ~ PAGE 1021. TAX MAP OR PARCEL ID NO.: 22-12-0350-019 'I mnlBI ,.1BI' BB allnmBmm lBl llB[Imlmnm mm m.nm nmnmn aB 14C!141 A4 t 9 BdTGgoooPAO012AIO~,BOI~IER ~ ORIGINAL TOGE'T]-IER with all the improvements no~ or hereafr~- erected on-the property, and all easements, HghTs, appurtonanc~ and rents, all of-which shall be d~med to be and remain a pert of the property covered by this Mortgage;, and all of the f.orego~ng, together with said property (or the leasehold e.~te if this Mortgage is on a leasehold) arc hereinafter referred mas the "Property.' ]3or,ewer covenants that Bo .ri'ewer is lawfully seised of the estate hereby conveyed and has the right to mort~e, ~Tant and convey tho Property, and that the property .is .unencumbered, except for encumbrartc~ or record. Borrower covenants that Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to encu,mbran0ea of record. UNIFORM COVEN--S..Borrower and Lender covenan.t and agree ts follow~ 1. Payment of Principal and Interest at Vs~able Rates. i, This mortgage s~oures all payments of principal and interest due on a. variable rate loan. The contract rate of interest and paymcn~t amounts may be subject to change as provided in the Note. B.or~wem sha!..l promptly pay when due all amounts .... required-bTthe~lo . ........ .---~.-~-.-.....~..-~..~.~. ..... ~ ...... 2. Funds for Taxes and l.nsuranc~. Sub, cot to applicable law or waiver by Lender,'Borrower shall pay to Lender off the day monthly payments of princil~l, and '.interest are payaSle under The Note, until the Note is paid in full, a sum (heroin 'Funds') equal to one'~welfth of the yearly taxes and assessmenls (including condominium and planned um't development assessments, if any) which ma}' attain priority over this' Mortgage and. ground rents on the Property, if any, plus one-twelfth of yearly premium installments for hazard insurance, plus one-twelfth of yearly premium installments for mortgage insurance, if any, ali as reasonably estimated initially a~d from time to time by Lender on 'the basis of assessments and bills and reasonable estimates thereof. Borrower shall not be obligated to make such payments of Funds to Lender lo the extent that Borrower makes Such payments to the holder of a prior mortgage or deed of trust if such holder is an institutional lender, If Borrower pays Funds to Lender, thc Funds shall be held ia an institinion the deposits el~ accounts of which are insured or gtmrantea~, by a l~edoral or .b'tst. e agency (includin, g I~nder if Lender is such an instilution). Lender shall apply the Funds to pay said. taxes, assessments, insurance premiums and ground rents. Lender may not cha~. ge for so holding and applying the Ftmds, analyzing said account or verifying and compiling said aase~., m. ents and bills, unl~ l.~ndcr pays Borrower interest on the l~uncls "... and'applicable law permits Lender to make such a charge, Borrower and Lender may agree in writing at the time of exeoution of this Mortgage that interest on the Funds shall be paid to Borrower, and unless such agreement is made or applicable law requires such interest to be paid, Lender shall sol be required to pay Borrower any intercaz or earnings on the I~unds. Lender shall give to Borrower, without charge, an annual accounting of the Funds r~owitxg credits and debits to the Punds and the purpose for which each debit to tho Funds was made. The Funds are pledged as additional security for the sums secured by _.~.._.. this. Mo.rt~g~_ .... · - -' mount of tho i= na - ......... payable prior to ihs due dates of taxes, asseasments,.inaurance premiums and ground rents, shalt exeeecl the amount required to pay said ~xes, as~.. meats, insurance premiums and ground rents as they fall flue, such excess shall be, az Borrower's option, either promptly repaid to Borrower or credited to Borrower on monthly installmenT..s of l~ .u0ds. If th,e a ,mount of the Funds held by'..Lender shall, not be sufficient to pay t~x~s, assessmet~, insu.rnnc'e 'p~qmiums ,gad .~nd re[tts as they-fall due; ,Borrower may require. ,, . ~.., :. t Upon payment in ~uli o'f.laill.'sum~I ~''" ~i ' ' '~ ':' .secur t,h s. Mortga. g,, Lend' -' ..dl/Prornptly' refhnd to Borrower any funds he!d by Le.nd,~. If un. der paragraph 17 hereof the Pro. petty is sold or the Pro~rty 03-01-01 Mr6 ..., ? PAOO12A~ ' I l[lll,gllllliifl glBIglliliillfliligililiilllilllililiiilll N914C~4'1~419 91dTG9OOOPAO0 32A20""BOI'J4ER " I~. IOtl~L ' {s otherwise acquired by Lender, Lender shall apply, no la,er than immediately prior to the sale of the Property or its acquisition by Lender, any Funds held by Lender at the ~dme of application as a credit against the sums secured by this Mortgage. 3. Applicalion of Payments. Except for loans made pursuant to the Pennsylvania Consumer Discount Company Act. all payments received by L~n. der under the Note and paragraphs 1 and 2 hereof shall be applied by Lender iii-at in payment of amounts payable to Lender by Borrower under parasraph 2 hereof, then to interest, and then to the principal. 4. Prior Mortgages and Deed of Trust; .Charges; Liens. Bo~ower shall perform all of Borrower's obligations under any mortgage, deed of trust or other security agreemen~ with a lien which hns priority over this Mortgage, including Borrower's covenants to make payments when duc. Borrower shall pay or cause to be paid all taxes, as~,~__sments and other charges, fines and impositions atU'ibutable to the Property which may attain a priority over this Mortgage, and' leasehold payments or ground rents, if any. -- - - 5. Hazard Insurance. Borrower sh~ll keep the improvements now e~isting or hereafter erected on the Property insured against loss by fire, hazards included wilhin the term "extended coverage," and such other hazards as Lender may require. The insurance carrier providing the insurance shall be chosen by the ]3orrower subject to approval by Lender; provided, that such approval shall not be unreasonably withheld. All insurance policies and renewals thereof shall be in a form acceptable ~o Lender and shall include a a~ndard' mortgage clause in favor of and in a form acceptable to Lender. Lender shall have the righ~ to hold the policies and renewals thereof, subject to the terms of any mortgage, d~-d of trus~ or other security agreement with a lien which has.priority over this Mortgage. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may rnake proof of loss if not made promptly by.Borrower. If the Property is abandoned by Borrower, or if Borrower fails to respond to Lender within 30 days from the date notice is mailed by Lender to Borrower that the insurance carrier off,rs to settle a claim lot insurance benefits, Lender is authorized to collect and apply the insurance proceeds at Lender's option either to restoration or repair of the Property or m the sums secured by this Mortgage. 6. Preservation and Maintenance of Property; Leaseholds; Condominiums; Planned Unit Developments. Borrower shall keep the Property in good repair and shall not commit waste or permix impairment or deterioration of the Property and shall comply wi~ch the provisions of any lense if this Mortgage is on a leasehold. If this Mortgage is on a unit in a condominium or a planned unim development, Borrower shall perform all of Borrower's obligations under the declaration or covenants creating or governing the condominium or planned unit development., the by-laws and regulations of the condominium or planned unit development, and cons~itucnt .documents. 7. Protection of Lender's' S~eurity. If Borrower'fails'to perform the covenants and-agreements contained i~ this Mortgage, or if any action or proceeding is commenced.which materially affects Lender's interest in the Property, then Lender, at Lender's option, upon notice ~o Borrower, may make such appearances, disburse such sums, including re~sonable attorneys' ~ces, and take such action as is necessary to protect Lender's interest. Any amounts disbursed by Lender pursuant'to this paragraph 7, with interest thereon, at the conU'act rate, shall become additional indebtedness o! Borrower secured by this Mortgage. Unless Borrower and Lender agree to other terms of payment, such amounts shall he payable upon.notice from Lender to Borrower requesting payment thereof. Nothing conu~in~d in this paragraph 7 shall requir~ Lender to incur any expenseor.take any acmion hereunder. 03-01-01 MI'G PA0012A3 ~'B 14~94 IA419'8MToc 000PAOO 12A30~0{,dqE R ~ ORIGINAL 8. Inspection. Loader may Takc or cau~ to be mede reasonable entrie~ upon end inspections of the Property, provic~! that Lender .~ell give Borrower no,ice pri~ u) any such inspection specifying reasonable cause therefor related to Lender's interest in the Property. ~). Condemnation. The 1~ of any awa~ or claim for damages, direct or consequential, in connection with any condemnation or othe~ taking of the property, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender, subject to the terms of any mortgage, deed of trust or other security agreement with a lien which has priority over this Mortgage. 10. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for payment or modification of amortizat]on of the sums secured by this Mortgng~ granted by Lender ~ any successor in £nterest of Borrower shall not' operate to release, in any manner, the liability of the original ~orrower and ]]orrower's sttccessore in intm~t. Lender shall not be required to commence proceedin~ aF~nst such successor or refu~e to ex, end tlmc for payment or otherwise modify amortization of the sums -~:c~U~ed' b-y~t~i~Mo~tggge~'b¥~reasOn~'of*any-clcrnand .made~by-the-ox.~ginal.-Borrower. and .Borrower's - stressors in interest. Any forbearance by Lender in exercising any righ! or remedy hereunder, or otherwise afforded by applicable law, shaH not be a waiver of or pl*er~.ude the exercise of any such right or r~l-nedy. 11. Successors and Assi~qls Bound; Joint and Several Liability; (~o-siF, ners. The covenants and a. greements here~n contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of Lencler and ]3or'rower, subject .to the provisions of paragraph 16 hereof. All covenants and alp'cements of Borrower shall be ~oint and several. Any ]3orrower who co-signs this ~[ort~1t~, but does e~ecute the Note, (a) is co-signing this Mortgag~ only 1:o mortgage, l~rant and convey that Borrower's fnterest in the Property to Lender under the terms of this Mortgage, (b) is not personally liable on the Note or under this ]vlo~gage, and (c) agrees that Lender and any other Borrower hereunder may agree to cx~end. modify, forbear, or make any other accommodations with regard to the terms of this Mortgage or the Note without that ]3orrower's consenl~ancl without releasing that Borrower or modifying th~s Mortgage as to that Borrower's interest in the Pro .perry. 12. ]~otice. ]~-~ept for an), notice required under al~licable law to be given in another manner, (a) any not]ce to Borrower provided for i.n this Mortgage shall be given by delivering it or by maillng such notice by ccr~ficc[ mail addressed to [3orrowcr at thc PToperty Address or at such other address a~ Borrower may desigrmte by notice to Lender as provided hcrcin, and (b) any notice to Lender shall be given by certified mail to Lender's ad~ slatect her~n or to such other address as Lender may designate by no,ice to Borrower as provided herein. Any notice provided for in this lV[o~t~age shall be deemed to have been given ~o Borrower or Lender when given in the manner clesilMated herein. I~. Governing Law; Severability. The state a.nd local laws applicable to this ~ort~lge shall be the laws of thc jurisdiction in which the Property is located. The foregoing sentence shall not limit the at~olicab~lity_ of l=~cleral law to this MortaLS_. ]n thc c_v. cnt that any provision or clause of this Mortp, age or thc Note conflicts wtth nf~tcahle law, sucl~.co~hc"T"'sh~ll not affect e~'~ provmsons of t~iis MortF, ageor tl~e" Note which can be given effect without the conflicting provision, and to this end the provisions of chis Mortgage and the Note are declared to be severable. As'used he. rein, "costs,* 'expenses" and *attorneys* fees" include all sums to the extent not prohibited by applicable law or Ii mi~i herein. 14. Borrower's Copy. ]3orrower shall be f~-nished a conformed copy of the Note and of this MortF, age atthe time of execution or after recorc~tion hereof. 15. Rehabilitation Loan AgT. earnest. Borrower shall fulfill all of Borrower's obligations under any home rehabilil~tion, improvement, repair, or other loan agreement which Borrower enters into with Lender, Lender, at Lender's option, may require Borrower to execute'an(l deliver to Lender, in s form acceptable to Lender, an. a~gnme~t of any rights, claims or defenses which Borrower may have against Partie~ who supply labor, materials or services in connection wi~h improvements made to the Pruper~y. !!l!!!lllllalEIIIIIIIIillll!.fllimlllgBlllllfllglllallfl ;"~9 14t~J41A41961dTOg0o0PA00't ZA40 B01~ER . ORIGIN/~ 16. Transfer of the Property. If Borrower sells or transfers all or any part of the Property an interest therein, excluding (a) the creation of a lien or encumbrance suborcEnate to this Mortgage, (b) s transfer by devise, descent, or by operation of law upon the death of a joint ten.ut, {c) the.grent of any leasehold interest of three years or less not confining an option to purchase, (d) the creation of a purclume money ~ourity interest for household appliances, (c) a trannfm' to a relative resulting from the death of a Borrower, (f) a transfer where the spou~ or children of the Borrower become an owner of the property, {g) a .transfer resulting from a dcc~e of disaolut{on of marriage, lcgal separation agreement, or from an incidental property settlement agreement, by which tho spou~ of the Borrower becomes an owner of .the property, (h) a transfer into an inter vivos trust in which the Borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in th~ proper~y, or (i) any other transfer or disposi'cion described in regulations prescribed by the Federal Home Loan Bank Board, Borrower shall cause to be submitted information required by Lender to evaluate the transferee as if a new loan wm'e being,maderto the transfferee. Borrower will continue to bo obligated under the Note and this Mortgage unl0m Leader writing. If Lender does not agree ~o such sale or tcanster, L~nder may doclar~ allof the sums secured by this Mortgag0 to bo immediately duo and payable. If Lender exercises such option to accelerate, Lender shall mail Borrower aotie~ of acceleration ia aoeordanc~ with paragraph 12 hereof. Such notice ab. all provid0 a p0riod of not lorn than 30 days from the date the notice is mailed or delivered within which Borrower may pay the sums declarexi due. If Borrower fails to pay such sums prior to the expiration of such period, Lender may, without further notice or demand on Borrower, invoke any remedies permi'cted by paragraph 17 hereof. NON-UNIFORM COVENANTS. Bot~'ower and Lender further covenant and agree as follows:. 17. Acceleration; Remedies. Except as provided in paragraph 16hereof, upon Borrower's breach of any covenant or agreement of Borrower in this Mortgage,.including the covenants to pay when due any sums secured by this Mortgage, L~ndcr prior to acceleration shall give notice '~o Borrower as provided in paragraph 12 h~reof specifying: (1) the breach; (2) the action required to cure such breach; {~) a date, not less than ~;0 days from the date tho notice is mailed to Borrower, by which such breach must be cured; and {4} that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums s~curcd by this Mortgage, foreclosure by judicial proceeding, and sale of the Property. Tho notic0 shall further inform Borrower of tho right to reinstate after acceleration and the right to assert in the foreclosure protruding the nom:zistetzcc of a default or any other defen$~ of Borrower to acceleration and foreclosure. If the breach is not cured on or borer© the date specified in the notice, Lender, at Lentil's option, may declare all of the sums secur.cd by this Mortgage to bo immediately 'due-and'payablo"witlio~Cf6~ih~r demand iud Mortgage by judicial procamding, l~nder shall be entitled to collect in such proceeding all expense~ of foreclosure, including, but not limited to, reasonable attorneys' fees and costs of documentary evidence, abstracts and title reports. 18. Borrower's Right to Reinstate. Notwithstanding Lender's acceleration of the sums by this Mortgage due to Borrower's breach, Borrower Shall have the right to hax'e any proceedings begun by Lender to enforce this Mortgage discontinued at any time prior to entry of a judgment enforcing this Mortgage if: (a) Borrower pays Lender ali sums which would be then due under this Mortgage and the Note had no acceleration occurred; (b} Borrower cures all breaches of any other covenants or Igl flllllifllgllllgllligtgHlllmllEEilligllg iOg ~B 14C941A4196MT(390 OOPAO 012ASO~.9OFi~ER x ORIGINAL -6- agreements of Borrower conutined in this Mortgage; (c) Borrower pays all reasonable expenses incurred by Lender in enforcing the covenants .and agreements of Borrower contained in this Mortgage, and in enforcing Lender's remedies as' prov!'ded in pnragrnph 17 hereof, including, but not limited to, reasonable attorneys' ,fees; and (d) Borrower taken such action as Lender may reasonably require to assure that ~he lien of this Mortgage, Lander's interest in the Property and BorroWer's obligation to pay the m~ns Becured by this Mortgage shall co,ntin..ue unimpaired. Upon such payment and cure by Borrower, this Mo~. gage and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred. 19. Assignment of Rents; Appointment of Receiver. As additional security hereunder, Borrower hereby assigns to Lender the rents of the Property, provided that Borrower shall, prior to acceleration under paragraph 17 hereof, in abandonment oF the Property, have the right to collect and retain st~h rents as they become due and payable. ' U~')n'-'-aS'c~l~ati~n'"'u~d~"'pi~ra-~r~i~h"-7'hereof or'abandonment of .the 'Property,.-Lender shall .be entitled to have a r~eiver ap~nted by a court t,o enter ulxm, take possession of and marmge the ~ and to collect the rents of the Property including tho~. past due. All reals collected by the r~oeiver shall be applied first to payment of the costs of manngement of the Property and collection of rents, including, but not'limited to, r~oeiver's fees, premiums on receiver's bonds and reasonable attorneys' fees, &nd then to the s~ms secured by this Mortgage. The receiver shall be liable To account only for those rents actually received. 20. Release. Upon paymenT, of all sums secured by this Mortgage, Lender shall release this Mortgage without charge to Borrower. Borrower shall pay all costs of recordation, if any. 21. Waiver of Homestead. Borrower hereby waives a!l right of homestead exemption in the Property under state or F~dera! law. 22. Interest Rate .After lud. gment. Borrowe.r agrees the interest ram pa~abtc after a judKmenl is entered on the Note or-in nn action of mortgage .fo .r~loeu~. shall be the rate stated in the Note. 03-01-01 MTG P~01~$ IIIBB.BIEflB!IBiIIIilIIOIIIlliIIBIIB!IllEBIBIIIII "B 1,4C94 IA4 f 98k('f69000PA0 ff12AGOXXBOf~lER "' ORIGIN~ -7- REQUEST FOR NOTICE OF DEFAULT AND FORECLOSURE UNDER SUPERIOR MORTGAGES OR DEEDS OF TRUST Borrower and Lender request the holder of any mortgage, deed o! trust or other encumbrance with a Hen which has priority over this Mortgage to give Notice to Lender, at Lender's address set forth on page one of this Mortgage, of any default under the superior encumbrance and~other · ,~_~ . d'- ZTR.~~ w . ' · '- .(~,/"-LlliDA BONNER -Borrower I hereby certify that the pred~ address of the Lender (Mortgagee) i~' 1634 SOUTH MA_~_k~.T STREE~T ELIZABETHTOWN PA 17022 On behalf of the Lender. By: JARES A. ROVIT0 Titl~ BRANCH MANAGER COMMONWEALTH OF PENNSYLVANIA, LANCASTER County ss: l, .JAMES A ROVITO a Notary Public in and for said county and state, do hereby certify that CLYDE N. BERTRAM AKA CLYDE L. BERTRAM AND LINDA BONNER~ BOTH SINGLE, J/T/~/S pemoaally kflowa to mc to bc thc same person(s) whose name(s) ARE subscribed to thc foregoing instrvm~nt, appeared before m~ this da), ~n person, and acknowledge that T h~ y signed and deJivered th~ s~id instrument as THEIR free voluntary act, [~ .rl~.*~gcs thor~n set forth. ~.,~d official scal, this 26TR day o~ JUNE ., ~.¥.~ ~19~ ...... I ~ ~7~=~f~ .. , . ....... ~-- ~F-IC~ CONS~R DISCOUNT C0~ D/B/A BE~FIC~ MORTGAGE C0 0F P~S~V~IA 1634 S MARKET ST ELIZABETdTOWN PA 17022 ........ (Address} (Sp~e Below This Lino Re~rv~t For l~ador and R~ordar) ,w,,--: ~-- th~s to be recorded Return To: [ ~. t~ '1 R~or~ Pining In Cumbeiu~aito~n~ PA S77 ~ont Road , ~mhu~, IL ~1~ [ nmimH][]]mmmnmff nsnm[l]! PA0012A? ' L' o.' . GOOD FAITIt ESTIMATE (Page I of 2) Date: 06/11 /200 ~ 08:14 (including required providers disclosure) 06/13/2001 LENDER: Bene£ici~l Consumer Discount: Company D/B/A Beneficial Heft:gage Co of Pennsylvania The information provided below rdlects estima~"s of the char§es which you are likely to incur at the settlement of your loan. The fees arc ~-~.imatcs; the actual charges may be more or le,~. Your transaction may not involve a fee for every item lis~l. The numbers listed beside the ~timates genernlly correspond to the numbered lines contained in the HUD-I or HUD-IA settlement statement which you will be receiving at settlement. The HUD-1 or HUD-IA settlement statement will show you the actual cost for items paid at settlement. ITEM HUD-i IHUD-I A I.oan Origination Fee (' Application Fee" and/or "Closing Costs") Lose Discount Fee ("Points") 802 Appraisal Fee 803 $ ~un nn Mortgagc Broker Fee 807 $ Document Preparation Po= 808 $ 200. SeT~lemen'c or Closing Fee ("Escrow Fee") 1101 $ Abstract or TiTle Search 1102 $ Title E~mina'don 1103 $ Title Insurance Binder 1104 Attorney Fee 1107 Title Insurance 1108 $ 1193.75 Recording Fees 1201 $ 31.50 City/County/Tax Stamps 1202 $ StateTax/Stamp~ 1203 $ Other Fees Amount or Range $ 12000.00 "rho.~ estimates are provided pursuant to the Re, al F. stat~ Settlement Procedures Act of 1974, as amondexi (RESPA). Additional information can be found in the HUD Special Information Booklet, which is re be providM to you by your mortgage broker or lender, if your application is to purcbas~ residential real property and the Lender will take a first lien on the property. Refer m Exhibit A for a list of required providers of settlement ~rvicaa. APPLICANT (called "You", 'Your'}: Ltnda' R:; Bonnet ADDRESS OF PROPERTY: 1023 York Road, Otlisburg Pt 17019 US436311 .614C941A4198~F ?§000US43531 TO~.l~Ol~tEfl x 0FII O I NAL F01tM 4353 {07-11-00) HXlilBiT A (Pax 2 of 2) 0811112001 08:14 THIS SECTION ~ro BE COMPLETED BY LENDER ONI,Y IF A PARTICULAR PROVIDER OF SERVICE REQUIRED. l.isted below are pmvidam of seevice which we requite ynu to me. The chswge~ or ranges indicnt~l in the Good Faith Estimate above are based upon the corresponding charge of the below designated providers. ITEM NO. 80311102/1108 1201 801 & 8O8 TELEPIIONE NO. 800-930-7464 NAME & ADDRESS OF PROVIDER Integrated Re, al Estate Proce~ing 290 Bilmar Drive, Suite 301 Pittsburgh, PA 15205 Cumberland CoUnty Recorder of Deeds (717)240-6370 I Courthouse Square', Carlisle PA 17013 Beneficial Consuner Discount Company D/B/A Beneficial Hortgage Co of Pennsylvania (717)367-1919 163& South Ha~ket 5treet-'i,E~izabethtown PA 17022 BUSINESS RELATIONSHIP EXISTS? ' Lender has repeatedly used or required borrowers to use the servicm of this provider. FORM 4353 [07-11-00) ' U5435312 rlilillllglllllllllgllglllllllgBIllqllillllllllllllililgll ~(914C941A4199OI:Tg000U$4353130~xg0q'4ER * 0RI 6114M. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CLYDE L. BERTRAM and MNDA R. BONNER, Plaintiffs Vm CIVIL ACTION NO. 03-1249 BENEFICIAL CONSUMER DISCOUNT: COMPANY, dlbla BENEFICIAL : MORTGAGE CO OF PENNSYLVANIA,: Defendant : (JURY TRIAL DEMANDED) CERTIFICATE OF, SERVICE I HEREBY CERTIFY, that i served a true and correct copy of the foregoing Plaintiffs' Complaint in the above captioned matter by U.S. Mail, postage prepaid, first class, upon the individuals listed below as follows: Linda Levitsky, Esquire Whittlesay McDowell & Riga 46 W. Main Street P.O. Box 127 Maple Shade, NJ 08052 Attorneys for Defendant Date: Step"l~k Portko, Esquire 101 South U.S. Route 15 Dillsburg, PA 17019 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA CLYDE L. BERTRAM and L1NDA R. BONNER, Plaintiffs VS. BENEFICIAL CONSUMER DISCOUNT COMPANY, Defendant Originally filed in: CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION FILE NO. 03-1249 Civil Ten CIVIL ACTION NO. NOTICE THAT ACTION HAS BEEN REMOVED (28 U.S.C. Section 1446(dD TO: THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA: PLEASE TAKE NOTICE that the defendant in the above captioned matter has, pursuant to federal law, filed with the Clerk of the United States District Court for the Middle District of Pennsylvania a Notice of Removal. In accordance with 28 U.S.C. §1446(d), this Court is respectfully requested to proceed no further in this action, unless and until the action is remanded by the United States District Court. A copy of the Notice of Removal Package filed with the United States District Court is attached as Exhibit "A" and filed with this document. Notice of the Removal has also been given to the plaintiff. This action was removed to the U.S. District Court for the Middle District of Pennsylvania in accordance with the authority of 28 U.S.C. § 14.46(a). Dated: June 5, 2003 Respectfully submitted, WHITTLESEY MCDOWELL & RIGA Identification No. 57716 Linda Levitsky, Esq. Identification No. 48291 46 W. Main St., P.O. Box 127 Maple Shade, NJ 08052 (856) 482-5544 and MCCABE, WEISBERG & CONWAY Marc S. Weisberg, Esq. First Union Building, Suite 2080 123 South Broad Street Philadelphia, PA 1'9109 Co-Counsel for Defendants 2 EXHIBIT "A" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CLYDE L. BERTRAM and LINDA R. BONNER, Plaintiffs : CIVIL ACTION NO. 03-1249 BENEFICIAL CONSUMER DISCOUNT: COMPANY, d/bla BENEFICIAL MORTGAGE CO OF PENNSYLVANIA,: Defendant : (JURY TRIAL DEMANDED) 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 entedng 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 dghts 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. ~UMBERLAND COUNTY BAR ASSOCIATION 2. LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 AVlSO Le han demandado a usted en la core. Si usted quiem defenderse de estas demandas expuestas en law paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, ia corte tomara medidas y puede continuer ia demanda en contra suya sin previo aviso o notiflcacion. Ademas, la corte puede decidir a favor del demandante y requiem que usted cumpla con todas law provisiones de esta demanda. Usted puede perder dinem o sus propiedades u otms demchos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE ELDINERO SUFICIENTE DE PAGAR TAL SERVICO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFIClNA CUYA DIRECClON SE ENCUENTRA ESCRITA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASlSTENClA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CLYDE L. BERTRAM and ENDA R. BONNER, Plaintiffs .. .. .. : CIVIL ACTION NO. 03-1249 BENEFICIAL CONSUMER DISCOUNT: COMPANY, dlbla BENEFICIAL : MORTGAGE CO OF PENNSYLVANIA,: Defendant : (JURY TRIAL DEMANDED) COMPLAINT I. Introduction 1. This is an action brought by homeowners against a lender with whom they unknowingly entered into an eXOrbitantly pdced mortgage loan. Plaintiffs seek rescission and statutory damages under the Home Ownership and Equity Protection Act of 1994 (hereinafter "HOEPA"), 15 U.S.C. §§ 1602(aa) and 1639, the Truth in Lending Act, 15 U.S.C. § 1601 et seq. and § 1640(a), and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1, et seq., 2. Plaintiffs also seek a determination on the merits that (a) they have properly rescinded the mortgage held by Defendant and that Defendant has no valid secured or unsecured claim; (b) that Defendant's refusal to honor their valid rescission notice in accordance with TILA's requirements eliminates any alleged indebtedness to Defendant; and (c) that Defendant is required to return to them all monies they hav~ paid in connection with the mortgage loan transaction which is the subject of this lawsuit. II. Parties 3. Plaintiffs Clyde L. Bertram and Linda R. Bonner are adult individuals who reside at 1023 York Road, Dillsburg, Cumberland County, Pennsylvania. 4. Defendant Beneficial Consumer Discount Company d/b/a Beneficial Mortgage Co. of Pennsylvania (hereinafter "Beneficial") is, to the best of Plaintiffs' knowledge, a corporation which conducts retail consumer loan operations in Pennsylvania through numerous branch office. Beneficial's office is located at 1634 South Market Street, El!zabethtown, Pennsylvania. 5. At ail relevant times, Beneficial, in the ordinary course of its business, regularly extended or offered to extend consumer credit payable by written agreement in more than four installments or for which a finance charge is imposed. III. Factual Allegations 6. Plaintiffs own the home at 1023 York Road, Dillsburg, Cumberland County, Pennsylvania, which is their principal dwelling. Until the transaction with Beneficial, the home was subject to a mortgage with Green Point Mortgage, which had an unpaid balance of $127,791.94, with a lower monthly payment than Beneflcial's loan. 7. On June 26, 2001, the date of settlement, Plaintiffs entered into a consumer credit transaction with Beneficial in which Beneficial extended consumer credit which was subject to a finance charge and which was payable to Beneficial. A true copy of the "Loan Repayment and Security Agreement" is marked Exhibit A attached hereto and incorporated herein by reference. 8. As part of this consumer credit transaction, Beneficial acquired a security interest, namely a mortgage, in the premises located at 1023 York Road, Dillsburg, Cumberland County, Pennsylvania, which is used as the principal dwelling of the Plaintiffs. A true copy of the "Mortgage" is marked Exhibit B attached hereto and incorporated herein by reference. 9. Prior to settlement date, Plaintiffs had communicated with Beneficial only by telephone, discussing that they wanted to refinance their mortgage to lower their payments. Plaintiffs inquired about applying for a new mortgage loan. 10. Plaintiffs submitted their information over the telephone, which Beneficial used to complete an application for a mortgage loan. Plaintiffs were never provided with a copy of either the application form or the one completed for them by Beneficial. 11. Plaintiffs had no further contact with Beneficial until they were subsequently informed that they had been given the loan commitment. The loan terms were not disclosed to Plaintiffs until the loan closing. 12. Beneficial required. Plaintiffs to consolidate $8,573.82 in unsecured loans or credit card debt into the new mortgage loan and conditioned the loan upon payment of a $6,746.00 single premium credit life insurance policy. Beneficial also persuaded them to borrow an additional $2,944.62 in cash, and then imposed approximately $13,185.27 in additional.points; fees and settlement charges. As a result, the principal amount of the new loan was $159, 241.65 and the payments were $1,512.92 per month for 360 months, with a disclosed annual percentage rate of 11.944%. 13. The transaction upon which this claim is based was a consumer credit transaction subject to the federal Truth in Lending Act, 15 U.S.C. §§ 1601 et seq. ("TILA"), and Regulation Z thereunder, 12 C.F.R. § 226. 14. At all times relevant hereto Defendant was a creditor within the meaning of the TILA, 15 U.S.C. §§ 1601 et seq. IV. Causes of Action Count 1 (Violation of the HOEPA) 15. The allegations in paragraphs 1 through 14 are incorporated herein by reference. 16. The above-mentioned consumer credit transaction was a high rate mortgage within the meaning of HOEPA, 15 U~8.C. § l(~02(aa)(1)(B), in that the total "points and fees" Beneficial charged Plaintiffs exceeded 8 percent of the total loan amount. 17. HOEPA requires every creditor, extending credit on High Point Mortgages as defined under 15 U.S.C. § 1602(aa)(1)(B), to provide the following disclosures, in "conspicuous" type, not less than three business days prior to closing: w "You are not required to complete this agreement merely because you received these disclosures or have signed a loan application." · "If you obtain this loan, the lender will have a mortgage on your home. You could lose your home and any money you have put into it, if you do not meet your obligations under the loan. See 15 U.S.C. § 1639(a)(1); Reg. Z § 226.32(c). For fixed-rate loans, the creditor must also accurately disclose the annual percentage rate and the amount of the regular monthly payment. 18. Beneficial did not furnish the above-required HOEPA disclosures to Plaintiffs at least three days prior to their closings. 19. HOEPA also prohibits a creditor, extending credit on High Point Mortgages as defined under 15 U.S.C. § 1602(aa)(1)(B), from engaging in "a pattern or practice of extending credit to consumers based on the consumers' collateral without regard to the consumers' repayment ability, including their current and expected income, current obligations and employment." 15 U.S.C. § 1639(h); Reg. Z § 226.32(e)(1). Upon information and belief, Beneficial consistently and continuously violates the above statutory prohibition. 20. HOEPA also prohibits a creditor, extending credit on High Point Mortgages as defined under 15 U.S.C. § 1602(aa)(1)(B), from providing "for an interest rate applicable after default that is higher than the interest rate that applies before default." 15 U.S.C. § 1639(d); Reg. Z § 226.32(d)(4). Beneficial violated said prohibition against increased default interest rates in its mortgage loan transactions with the Plaintiff. Upon information and belief and based upon the terms of Beneficial's standard form Notes and Riders as described herein, Beneficial consistently and continuously violates the above statutory prohibition. 21. HOEPA also prohibits a creditor, extending credit on High Point Mortgages as defined under 15 U.S.C. § 1602(aa)(1)(B), from providing a mortgage that contains "terms under which a consumer must pay a pre-payment penalty for paying all or part of the principal before the date on which the principal is due." 15 U.S.C. § 1639(c); Reg. Z § 226.32(d)(6), (7). Beneficial violated said prohibition against pre-payment penalties in ts mortgage loan transaction, as described herein. 22. Plaintiffs believe and therefore aver that Beneficial required or induced them to borrow substantially more money than they were seeking, and in an amount beyond their ability to repay, based primarily on Beneficial's evaluation of the amount of Plaintiffs' equity in their home. 23. Plaintiffs believe and therefore aver that Beneficial required or induced them to purchase a single premium life insurance policy and then saddled them with higher annual interest and higher payments than what they had paid before refinancing and above the rate they would have been charged elsewhere. 24. Further, Plaintiffs believe and therefore aver that the loan approved by Beneficial exceeded the appraised value of their home by nearly $20,000.00. 25. Because the transaction described herein met the HOEPA definition of a high rate mortgage, the transaction was subject to additional disclosure requirements that must be provided three days in advance of the consummation of the transaction. 15 U.S.C. § 1639(b). 26. Beneficial did not furnish these required HOEPA disclosures to Plaintiffs three days prior to their settlement. 27. The loan extended to Plaintiffs includes abusive terms prohibited by HOEPA, including: i.e. penalty interest rates upon default, a prepayment penalty and invalid mandatory arbitration clause. 28. In connection with the consumer loan transaction Defendant gave to Plaintiffs a copy of the disclosure statement, a copy of which is attached hereto as Exhibit C. 29. Said disclosure statement does not contain all of the material disclosures required by the federal Truth in Lending Act and by Regulations Z, and is missing, inter alia, the following material disclosures: a. The disclosure statement fails to include the cost of credit life insurance' in the finance charge even though: i. Such insurance was required by Plaintiff as a condition of the loan; and even though ii. The Debtors did not give a separately signed indication of their desire for credit life insurance. 12 C.F.R. § 226.4(d)(1)iii). b. The notice fails to disclose the service charge as a prepaid finance charge as required by 12 C.F.R. § 226.18(c). c. The notice fails to itemize the components of the amount financed as required by 12 C.F.R. § 226.18(c). As a result of the failure to properly disclose the above-mentioned items as finance charges the notice misstates the amount financed, the finance charge and the APR, In violation of 12 C.F.R. § 226.17(a) the notice misleadingly states that credit insurance was not required by the lender when in fact it was a specific precondition of the loan, and Defendant would not extend credit if credit insurance was not purchased. 30. Beneficial failed to deliver all the "material" disclosures required by the Truth in Lending Act to Plaintiffs in connection with this transaction. In particular, the disclosure violations include, but are not limited to: (a) Failing to properly and accurately disclose the "amount financed," using that term in violation of Regulation Z § 226.18(b) and 15 U.S.C. §1638(a)(2)(A); (b) Failing to clearly and accurately disclose the "finance charge," using that term, in violation of Regulation Z § 226.4 and 226.18(d) and 15 U.S.C. §1638(a)(3); and (c) Failing to clearly and accurately disclose the "annual percentage rate," using that term in violation of Regulation Z § 226.18(e) and 15 U.S.C. 91638(a)(4). The Plaintiffs have a continuing right to rescind the transaction until receipt of all "material" disclosures described above, pursuant to 15 U.S.C. §1635(a) and Regulation Z, § 226.23(a)(3). 31. Because of the violations of HOEPA and TILA listed above, Plaintiffs retained the right to rescind the transaction up to three years after its consummation. 32. Plaintiffs rescinded the transaction by sending a notice of rescission to the Defendant, by U.S. Mail. 33. More than twenty days have passed since Plaintiffs rescinded the transaction and Beneficial has failed to take any action necessary or appropriate to reflect the termination of any security interest created under the transaction, as required by 15 U.S.C. § 1635(b) and Regulation Z, § 226.23(d)(2). In addition, Beneficial has failed to return to the Plaintiffs any money or property given by the Plaintiff to anyone, including Beneficial, as required by 15 U.S.C. §1635(b) and Regulation Z, § 226.23(d)(2). WHEREFORE, Plaintiffs pray for the following relief, pursuant to 15 U.S.C. 9§ 1635(a), 1639(j), and 1640(a): a) Rescission of the transaction, including a declaration that the Plaintiffs are not liable for any finance charges or other charges imposed by Defendant; b) A declaration that the security interest in Plaintiffs' property created under the transaction is void, and an order requiring Defendants to release such security interest; c) Return of any money or property given by the Plaintiffs to anyone, including the Defendant, in connection with the transaction; d) Statutory damages of $4,000 (consisting of $2,000 for the disclosure violation and $2,000 for the failure to rescind); e) Additional damages pursuant to 15 U.$.C. § 1640(a)(4) in the amount of all finance charges and fees paid by Plaintiffs; f) Forfeiture of return of loan proceeds; g) Actual damages in the amount to be determined at trial; h) An award of reasonable attorney's fee and costs; and i) Such other relief at law or equity as this Court may deem just and proper. Count 2 (Violation of the TILA) 34. Plaintiffs repeat and reallege all paragraphs above as if set forth herein. 35. Plaintiffs' transaction was an extension of consumer credit by a creditor subject to TILA. -' 36. Since Plaintiffs' mortgage loan transaction involved the creation of a security interest in the consumers' residence other than for purposes of pumhasing or constructing that residence, the mortgage loan transaction was also subject to the rescission provisions of TILA, 15 U.S.C. § 1635. 37. TILA requires that a creditor deliver to each owner of a premises, prior to closing, accurate disclosures of the following material terms, among others: a) the"APR" or "annual percentage rate" including applicable variable-rate disclosures; b) the "finance charge(s)"; and c) the "amount finance." 15 U.S.C. § 1638. Where such information is not accurately disclosed, a borrower is entitled to rescind a transaction for up to three years after consummation of the transaction. 15 U.S.C. § 1635(f). 38. TILA also requires that a creditor deliver to each owner of the premises, prior to closing, two notices of rights to rescind, which are "cleady and conspicuously in writing, in a form that the consumer may keep." 15 U.S.C. § 1635(a); Reg. Z, §§ 226.15(b) and 226.17(a)(1). Where those notices are not provided, or the borrower's right to rescind is eviscerated by actions taken before or during the post-closing, three day rescissionary period, a borrower is entitled to rescind a transaction for up to three years after consummation of the transaction. See Regulations Z, § 226.15(c). 39. As a result of Beneficial's instruction to Plaintiffs to forego making payments on their pre-existing loan, Beneficial negated Plaintiffs' post-closing statutory rescission period. 40. As a result of Beneficial's failure to provide at least one copy containing accurate TILA disclosures, and two copies of the required TILA notices of right to rescind, to each title owner of the property, Beneficial violated TILA, and Plaintiffs were not provided with their proper post-closing statutory rescission period. 41. The above violations of TILA give Plaintiffs an extended right of rescission pursuant to 15 U.S.C. § 1635 and Regulation. Z § 226.23, as a plaintiff has a continuing right to rescind a transaction until receipt of all "material" disclosures pursuant'tO 15 u.s.c. § 1635 and Regulation Z § 226.23. WHEREFORE, as a result of the above described violations, pursuant to 15 U.S.C. § 1635 and 1640(a), Plaintiffs request that this Court enter judgment in their favor and against Beneficial, by: a) ~,escission of the transaction, including a declaration that the Plaintiffs are not liable for any finance charges or other charges imposed by Defendant; b) A declaration that the secudty interest in Plaintiffs' property created under the transaction is void, and an order requiring Defendants to retease such secure'7 interest; c) Return of any money or property given by the Plaintiffs to anyone, including the Defendant, in connection with the transaction; d) Statutory damages of $4,000 (consisting of $2,000 for the disclosure violation and $2,000 for the failure to rescind); e) Additional damages pursuant to 15 U.S.C. § 1640(a)(4) in the amount of all finance charges and fees paid by Plaintiffs; f) Forfeiture of return of loan proceeds; g) Actual damages in the amount to be determined at trial; h) An award of reasonable attorney's fee and costs; and i) Such other relief at law or equity as this Court may deem just and proper. Count :~ (Violation of the CPL) 42. Plaintiffs repeat and reallege all paragraphs above as if fully set forth herein. 43. At all times relevant hereto, defendant was a "person" as defined in Section 201-2(2) of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73. P.S. Section 201-1 et seq. (hereinafter "CPL"). 44. The Defendant has violated the provisions of the CPL with respect to Plaintiffs by engaging'in consumer~oriented acts and practices which were deceptive or misleading in a material way, and which were unfair, deceptive, and contrary to public policy and generally recognized standards of business, including but not limited to: (a) Misrepresenting to Plaintiffs - or failing to inform Plaintiffs about - the terms of their loan, and the nature and details of the transaction they were entering into, including but not limited to: the amount of monthly payments, the interest rate on the loan, the costs of the loan, the distribution of the loan proceeds, and the availability of cash that would be paid from the loan proceeds; (b) Misrepresenting to Plaintiffs that the mortgage loan transaction had benefits that they did not have, or failing to inform Plaintiffs that said transaction had little or no benefits, which did not medt entering into the transaction given their padded costs and interest rates; (c) Fraudulently inducing Plaintiffs to enter into a mortgage loan transaction that they did not have the ability to pay; (d) Failing to provide Plaintiffs with the appropriate and/or accurate pre- closing and closing disclosures and notices of rights to rescind, including but not limited to disclosures required by TILA and HOEPA; (e) Preventing Plaintiffs from examining and reading the relevant documents at closing; (f) Misrepresenting to Plaintiffs that the points and fees payable from the proceeds of the mortgage were bona fide and reasonable and necessary for the extension of credit, or failing to inform Plaintiffs that they were not; (g) Requiring Plaintiffs to execute and/or executing on behalf of Plaintiffs inaccurate documents in order to close their loans; (h) Effectively negating Plaintiffs' statutory rights to rescind by failing to provide the appropriate pre-closing and/or closing disclosures, and/or by inducing Plaintiffs to forego making monthly payments on pre- existing mortgages or other debts, prior to the end of the effective time period for rescinding their loan -- a practice known as "spiking"; (i) Failing to disclose to Plaintiffs the true distribution of loan proceeds; Failing to disclose to Plaintiffs that certain debts that would be paid out of loan proceeds, which Plaintiffs would not have had to pay during their lifetimes unless they sold their Premises, would be paid out of the loan proceeds, and would thereby place their home in jeopardy of foreclosure; (k) Inducing Plaintiffs to forego monthly payments on their pre-existing loans, and thereby effectively negating their statutory dght to rescind; Inducing Plaintiffs to attend the loan closing without an attomey who could explain to them the true nature and terms of their loan, and who could protect Plaintiffs from Beneficial's materially misleading and deceptive practices; (m) Including in the mortgages and notes provided to Plaintiffs certain terms that are prohibited by federal law; (n) Extending credit to Plaintiffs on the basis of the value of their Premises, rather than on the basis of their ability to pay, in violation of federal law; (o) Requiring credit insurance or leading Plaintiffs to believe that credit insurance was a requirement of the loan transaction; (p) Violating the provisions of the CPL, which requires certain disclosures in connection with mortgage loans; and (q) Engaging in high pressure sales tactics to induce Plaintiffs to enter into deceptive, fraudulent and unconscionable transactions. 45. Plaintiffs reasonably relied on Beneficial's above-identified deceptive acts and practices, and entered into the mortgage loan transaction that the Plaintiff otherwise would not have entered into but for those deceptive acts and practices. 46. Beneficial utilized artifice and deception to take advantage of Plaintiffs' confusion and lack of sophistication. More specifically, Beneficial knew or should have known that Plaintiffs had little idea how much they were borrowing or why; were unaware of the various charges imposed on them in the transactions and the fact that some of those charges were illegal under Pennsylvania law; and were unaware of the disadvantages and dsks of refinancing and consolidating their pre- existing debt, particularly paying off unsecured debt or lower interest rate loans. Beneficial also knew or should have known that Plaintiffs would have difficulty repaying the loan.and were, therefore, subjecting themselves to the real likelihood of foreclosure. Beneficial nonetheless omitted information and explanations concerning these matters. 47. While representing to Plaintiffs that consolidating their existing debt and pdor mortgage would be advantageous, Beneficial omitted the material fact.that it would charge substantially higher points and fees for first mortgages than what Plaintiffs were already paying. 48. Plaintiffs suffered serious injury and damages as the proximate result of Beneficial's above-described deceptive and unfair practices, including but not limited to: excessive loan fees and costs and emotional distress concerning possible loss of their home. 49. Beneficial is liable to Plaintiffs for actual and punitive damages under Pennsylvania common law, as well as treble damages, attorney fees and other appropriate relief, pursuant to 73 P.S. § 201-9.2. WHEREFORE, Plaintiffs demand judgment against Defendant for treble damages in the amount of at least $39,555.81 pursuant to 73. P.S. Section 201- 9.2 plus reasonable attorney's fees and court costs and expenses incurred herein. Count 4 (Unconscionability and Bad Faith) 50. Plaintiffs repeat and reallege all paragraphs above as if fully set forth herein. 51. As described below, Beneficial systematically engaged in procedural and substantive unconscionability in violation of Pennsylvania's common law prohibiting unconscionability and bad faith in consumer transactions. 52. Prior to and during the time of the loan transaction, there existed a disparity in bargaining power between Plaintiffs (on the one had) and Beneficial (on the other hand). Plaintiffs are unsophisticated consumers. Beneficial is part of a sophisticated, publicly traded, multi-million dollar finance company that has engaged in home mortgages and home equity financing over a vast time period. 53. Procedurally, Beneficial intentionally misrepresented, or failed to disclose, material information concerning the nature and terms of the Plaintiffs' loan, thereby depriving such individuals of material information of which they were unaware, and also de'priving those individuals of information that might have reduced the disparity in bargaining power between the parties. 54. Procedurally, Beneficial also failed to provide to Plaintiffs certain notices of rights to rescind, thereby depriving those individuals of their statutonj rights to cancel their contracts, and also depriving those individuals of a procedure that might have reduced the disparity in bargaining power between the parties. 5§. Procedurally, Beneficial also completed a loan application for, or extended credit to Plaintiffs on the basis of the value of those individuals' home, rather than on the basis of their ability to pay. In so doing, the Defendant knew from information that they had obtained that Plaintiffs were unlikely to be able to make their mortgage loan payments or the Defendant failed to obtain sufficient information to determine if Plaintiffs would be able to make their mortgage loan payments. 56. Procedurally, Beneficial also induced Plaintiffs to attend their closing without an attorney who could explain to the Plaintiffs the true nature and terms of their loan, protect those individuals from the defendant's unconscionable practices, and who could have reduced the disparity in bargaining power between the parties. 57. Procedurally, Beneficial also induced Plaintiffs to execute inaccurate documents in order to obtain their loan. 58.Procedurally, Beneficial also prevented Plaintiffs from reviewing and thereby better understanding their loan documents at their closings. 59.Procedurally, Beneficial misrepresented, or failed to disclose, to Plaintiffs that their mortgage loan transactions contained padded points and fees that were not reasonably related to the actual services rendered. Moreover, the Beneficial arranged for said points and fees to be paid to themselves from Plaintiffs' proceeds obtained from their closings. 60. Procedurally, Beneficial also engaged in high pressure sale tactics that were designed to, and did, induce Plaintiffs to enter into fraudulent loan transactions. 61 .Given the disparity of bargaining power between the parties, and the imbalance in acumen'and understanding of the parties, the above identified procedural unconscionability was intended to, and did, cause Plaintiffs to have a lack of meaningful choice in connection with their mortgage loan transaction. 62.Substantively, the loan terms provided by the Defendant: a) skimmed off the equity in Plaintiffs' home; b) provided little or no economic benefit to those individuals; c) were padded with excessive points and fees that were paid to defendant and affiliated third parties, and that were not reasonably related to the services actually rendered by defendant and those affiliated third parties; d) contained base interest rates that were not commensurate with the usual and customary rates charged for sub-prime loans, and which did not represent Beneflcial's actual economic risks and was higher than Plaintiffs' credit warranted; e) contained terms that were prohibited by HOEPA and TILA; and 0 placed Plaintiffs in jeopardy of losing their home, which was the collateral for their loan. 63.The above described substantive unconscionability rendered the mortgage loan contract that was entered into unreasonably favorable to the defendant. 64. Plaintiffs reasonably relied on defendant's above described unconscionable practices, which proximately caused them injury. 65.The above described unconscionable practices render void and unenforceable the mortgage loan transaction entered into between Beneficial and Plaintiffs. 66.As a result of the above described violations, Plaintiffs hereby request that this Court: (a) Declare Plaintiffs' mortgage loan transactions with Beneficial void and unenforceable; (b) Grant whatever further monetary or equitable relief this Court deems appropriate to Plaintiffs and against the Defendant. WHEREFORE, Plaintiffs request the following relief: A. An order (i) entering declaratory relief of rescission for the Plaintiffs, (ii) voiding any lien and/or any security interest obtained by Beneficial against the property of the Plaintiffs, (iii) providing actual, statutory and enhanced damages, attor, neys' fees and costs to the Plaintiffs, under HOEPA and TI[A; B. An Order providing equitable and monetary damages to Plaintiffs under the CPL, including treble damages, reasonable attorney's fees and costs; C. An Order declaring Plaintiffs' mortgage loan transactions void and unenforceable due to their unconscionability under Pennsylvania state law; D. Such other relief at law or equity as this Court may deem just and proper. V. Demand for Jury Trial 67. Plaintiffs respectfully demand trial by jury on all Counts to which they are so entitled. WHEREFORE, Plaintiffs respectfully demands judgment against Defendant for rescission and in an amount sufficient to compensate them for damages incurred by them, including (1) Actual damages; (2) Statutory damages pursuant to 15 U.S.C. §§ 1635(a), 1639(j), and 1640(a): (3) Statutory damages pursuant to 73 P.S. § 201 - 9.2, including treble damages; (4)Attorneys' fees and costs; and (5) Such other and further relief as the Court deems proper. Dated: Respectfully submitted, Stephen K. Portko, Esquire, I.D. #34538 Bratic & Portko 101 South U.S. Route 15 Dillsburg, Pennsylvania17019 (717) 432-9706 Attorney for Plaintiffs VERIFICATION , hereby acknowledge that I am and that I have read , and the facts stated therein are true and correct to the best of my knowledge, information and belief. understand that any false statements herein are made subject to penalties of Pa.C.S. Section 4904, relating to unswom falsification to authorities. LOAN REPAYMENT AND SECURITY AGREEMENT (Page 1 of 3) LENDER (called "We", 'Us", "Our") BENEFICIAL CONSUMER DISCOUNT COMPANY DISIA BENEFICIAL MORTGAGE CO OF PENNSYLVANIA 1624 SOUTH MARKET STREET ELIZABETHTOWN PA 17022 BORROWERS (cal~d "You", "Your") BDNNER, LINDA R SS~ 171388230 BERTRAM, CLYDE L 1023 YORK RD DILLSBURG PA 1701g LOAN NO: 711720-54'7705 0612BI2001 YOU ARE GIVING US A SECURITY INTEREST IN THE REAL ESTATE LOCATED AT THE ABOVE ADDRESS. R!~QUIII~D INSURANCe. You must obtain insurs.~ for ~rm ~ loan ~ ~u~ for ~ Io~n YES Titl~ insura~ on ~nl us~ ~urit~. Y E S ~re ~d elton~ ~vere~ insuran~ ~ mai ~ s~rity. Yo~ may obtain arty rmlulrmt insurem~ from anyonv you ohoos~s nad mey assign any othur polly of insurant~ (S~e "Se~urlty' parugroph abm, e for d~s:riptioa of s~.-'urity lo be insured.) NOTICE: THE I~OLLOWINO PAGES CONTAIN ADDITIONAL CONTRACT TERMS, "''' ilgllilllmill glgilflgBlligiliailltlllglllll lllgOEiiBll[ LOAN REPAYMENT AND SECURITY AGREEMENT (Page 2 of 3} PAYMENT. In mmrn for your loan d~scribed below, you ~gr~e to pay as, ',he Principal and In,erect comput~l at the Con~rsct Ra~e (ss s~ated on page one). Principal is Amount Financed, plt~g The Fe~. You si~all pay us momhly ~ym~u, at our b~n~ ~d~ or o~h~ adde~ ~vm you. If more ~ one Bo~w~ is namM on ~ge one, we may ~foge Conxrac~ agent all, or any ~ow~, bm no~ in a ~mbin~ amo~t ~r ~ the amounx ow~. Each paym~t will ~ fl~ appli~ to ~y Late Ch~, ~ ~ lnt~ at'~e Contract ~te for the ac~ time ou~andlng, and the r~maind~ m your unp~d P~ncipal. DA~ ON WHICH I~E~T BEGIN$, 1~ you do no~ cafi~el this 1o~, ~:~e ~g ~ which In~es~ begin, payroll &~, ~ eff~v~ ~g of i~ p~ a~ ~a~ by th~ num~ of &ys imm ~t~i~ 0~ract's da~e to da~ you ~ive ~s loa~ ~IUST~ TO CO~ ~TE. Th~ Con~ ~, ~ shown on page o~. will d~r~ by one qum~ of on~ ~ (.~) al ~ ~d o~ ~o 3rd y~r {36th moa~}i tho 4Ih year (48~h month) al~d the 5th year (¢~h monlh) (~ll~vely ~ '~m R~tio~'), ff all ~ym~ ar~ mlde witch 30 ~ys of thor due &tn. ~d you have no~ ~il~ ~lion under lh~ U.S. ~pgy C~ during th~ mont~s p~ing the ~ RMu~on. The Rl~e R~u~ion will ~ no agr ~ lh~ ~ payroll d~ ~e following ~ ~6th, 4~h, and. 6~on? ~iv~ry ~gs from lhe ~ lhe c~. E~n i~ ~he ~e is ~, ~ m~t~y ~yment wdl not ~ aolu~a, io~ m~ mta~ ~oan ~o~ Wtil · ~ ' ~,~11 ~e than ~h~ ~inal ~vm~l due da~ s~wn oh ~ge one, ~aming all paymea~ are made on their d~ N~i~ing any~ng m ~ con~ in Ibis ~ph,!if, ~t~o any ~ ~otmn, any paym~t ~s mad~ meg than ~ ~ys ~mr lh~ d~ ~m, or you havg filed a ~g~on under ~ U.S. ~n~upgy C~. you will not ~iv~ th~ ~ R~oa [ollowi~g ~h ev~t. PAY~. You a~ ~ ~o~ of Amoun~ Finned. ~ shown ~ Tru~-In-Mn~ng di~los~e form. ff pa~ou~ ~ge ~aug loan ~1~ is ~ay~, (a) you s~ll ~y ~ilio~l amo~ d~ a~ ~iosing. or (b) your ~h ~ ch~k will ~ r~u~ to ~v~ ~o~1 ~ou~. PR~AYM~. Subjgt ~ ~e ~'m~ P~alty ~i~ ~low, you may p~y you~ Iron a~ any ~ime. I~ you ~y ~ore ~e [i~l due ~t~, Poin~ a~ fully ~m~ wfi~ lhis l~a is made and you v'ill not ~ive s r~fund of ~ of ~e Fi~ ~r~ ~n~ng of Point. P~AY~ P~AL~. If you p~y ~he ~n~r~ outriding ~am~ of your Ac~oun~ s~ ~y dine within fi~e (~) y~ of t~e loan a~enl dag. you agr~ ~ pay ~ p~.m~nt ~n~ly ~ual to six (6) mon~ in~ al ~e Con~ract ~m (~ stal~ on page one) of ~e o~nsl Amounl FiM~. No p~ymom ~n~ will ~ im~ i~ Ibis loan is p~d-off vi~ zhe ~s from mo~ loan wi~ ~. M~ CH~GE. tf you ~n'~ ~y any paym~ i~ ~ull within 15 da~ af~ il's due, you will also pay a la~ ghargo equal ~ 10~ of lh~ monlhly ~ym~t or S29, whichever is ~a~r. B~ C~K CH~GE. We will ~Mrg~ you a fee of g~ i~ any ~ymen~ ch~k is re~um~ ~ of insufficient f~n~ or i~ o~wi~ disho~o~. You a~ ~ w~ may d~u~ ~is ~harge [rom a m~thly S~UR~. ~re is a mortgage on yo~ ~al mgic. l~d a~ your addr~ ~own on ~g: one unl~ a dlff~nl is gal~ You ag~w ~w ~ a~oud~y in~t in th~ ~1 ~to~ d~o~d in tho Mo~gag~d of Trust. PROPERTY INSTANCE: A. YOUR OBLlOATION TO I~E. You s~ll k~p }h~ s~ru~ur~ I~a~ on the r~t ~o~y s~u~ng ~s i~d a~i~l ~mag~ ca~ by [~ and other phygcal ~r~, name us ~ a lo~ ~ a~ doliv~ ~o ~ a 1~ pa~ble ~dom~m~. I~ ins~anc~ cov~Nng ~he r~l pro~y is cancelled or ~xpi~ w~l~ ~he loan is outriding and you do rei~te the cowrag~, we may obtain, a~ our o~ion, ha~r~ in,faRce gove~ ~l~ling ow iat~ iR lhg ~1 a oudinM below. B. L~D~'S ~G~ TO PLACE ~ARD INSURANCE. Yo~ a~o~ize ~, al our option, lo ebon cov~ag~ on Pm~ ia ~ amo~t ~t g~ ~ ~e o~aa~ng ~la~e of pri~i~l and ia~r~ on ~he loan or, if known m ~ ~e r~lgemenl v~ue of ~e Pro~, in lhe ev~t ~ yo~ fail to main~n the requi~ hazed insurance outlined a~ve or fsi1 m ~ovide ad~m p~[ of i~ ~i~nce. You au~iz~ ~ ~o charge you for ~e ~o~;g of Ibis instance and a~ ~he i~g~ cherg~ ~ your lo~. The Ins~ace cMrg~ wi. Il ~ add~ ~o ~he ua~id b~ance of th~ loan which ia~ a~ lhe Con~rac~ ga~. 'l'h~ a~i~ of the insuianco ~herg~ due might in~e~ lhe amoun~ of your final i~lm~t. ~ ~og of ~nd~r pla~ baird i~n~o might b~ hi~or than lbo ~g of s~an~d i~uran~ preluding the ~p~y, The ~er plac~d ins~ will nol i~r~ th~ ~n~n~s of ~o pr~y or ~vide liability ~overage. The i~noe mighI not ~ lhe lo~m~ ~os~ ~v~a~ of i~ ~y~ awilable and you ag~ tha~ we have no obligation ~ ob~in NOTICE: THE FOLLOWING PAGE CONTAINS ADDITIONAL CONTRACT TERMS. PAB65812 LOAN REPAYMENT AND SECURITY AGREEMENT (Page 3 of 3} lowe~ cx~t coverage. We or en affiliau~d company might ~ve ~me ~efit (i.e..comm~on, ~i~ f~, e~ ~mbu~t, ~.) f~m the pigment of t~ ins~ ~ you wilt ~ c~g~ i~ ~e f~l c~ of the p~ium without r~fi~ for ~ such ~efit. If at ~y time aft~ we ~ve ob~ ~is i~u~c~.you pmvi~ ~ t~t you have ~n~y pu~h~ ~o ~ ~v~ge, we will ca~ ~ ~V~a~ we ob~n~ ~ ~t any une~ p~iums to ~ur l~. DEFAULT, If you ~n'~ ~y on ~me or fail to k~p any ~uir~ i~mnc~ in for~, or if p~mi~ in th~ ~vmt of d~ault un~ the ~o~go, (1) all your paymen~ ~y b~ome du~ at o~ an~ (2) wi~t no,lying you ~o~ bH~ging ~t, we may su~ you for the ~i~ ~paid ~ce ~ P~i~ and ac~ ln~ ~ (~) any j~gmmt ~ our fa~ may o~ r~na~e att~ey's f~ ~d cou~ ~ ~ d~,,..i~d by ~e co~. You a~ ~ ~uld wo ob~ a~i~ you, a ~on of your ~sabl~ ~ may ~ a~h~ or ~ (~d to ~ by your employs), ~ by ~1 law. You a~ to ~y int~ ~ any j~menl at ~e ~ntra~ ~. EXC~GE OF I~O~A~ON. You und~ t~ f~ tim~ to ~imo we may ~ve cr~it conce~ you f~m ot~, s~h ~ s~ o~ I~d~, ~d ~i~ ~ ~ You a~ho~ze ~ to ~a~ any i~orma~on, on a ~gular ~, we ob~n ~la~ Io y~ ~k in~ b~ ~t li~ to cr~it ~ and i~u~ce informa~on, wi~ ~y of our. aff~t~ co~mfi0~ ~d~ or oth~ ~rd ~im, ~e ~ of this inlorma~on may incl~e an i~irF m d~ine if ~u q~ify for ~ifio~ off~ of c~L You al~ a~ shs~ any i~o~afi~ ~ding yo~ A~t with ~ of o~ a~t~ co~fio~, ~ ~ ot~ ~rd pa~, You may pmhi~t the sharing of s~h inf~ma~i~ (el~pl for the s~r~ of i~o~li~ abou~ l~n~ctions or elperi~ces betw~n ~ and you) by s~din~ a wrillen r~u~l which contains your f~l name, Soc~ Security Numar and Address ~ us al P.O. Box 1547, Chef.kc. VA ~20. If you f~l ~ fulfill ~e te~s of ~ur ~t o~i~tion, a n~fiv~ ~ ~n~ ~ your ~it ~ord may be submi~ ~o n Cr~ R~ing A~. You a~ ~ ~e ~t of Motor V~cl~ (~ yo~ ~'s ~t of s~h Agr~men~ ~d n~ inco~a~ h~ by ~T~ATI~ DISP~ ~L~ON ~ O~ER ~D~. ~ ~e~ of ~e ArraiGn A~m~t ~d APPLI~ LAW. T~s loan is m~ at an a~ m~ au~oH~ ~' ~fion 501(n)~ ~ A, Tixle V, Public · '~te~tiw tuG.gage t~on" ~der ~ Al~five Mo~ Tr~on P~ ~ ~ion of ~h~ ~m~t. ff you do not ~y the full amour of an im~mm~ wh~ it is d~, ~d we in~d ~ forecl~ on ~o Mo~, we m~ ~mply wi~ ~e ~vi~ ~ So~tion ~3 ~d ~ of t~ Act of ]a~u~y 30, ]~4, w~ch ~ ~ ~ A~ ~o. 6, and ~mvi~o~ of the Hom~w~r's Em~r~cy ~ge ~ce ~t (Aut No. 91 of 19~). ANY ~VANCE OF FUNDS P~UA~ ~ ~H~ LOAN ~AYME~ A~ SECU~Y AGREEMENT AND THE MORTGAGE WHICH SE~ ~E AGREEME~ MAY. IN ~E EVENT OF ANY DEFAULT, R~ULT ~ THE L~S OP YO~ HOME OR O~ ~L ~OPERTY PLEDGED AS SE~TY FOR YOUR LOAN. YOU HAVE RECEIVED A COMPL~E COPY OF T~ AGRE~ME~ AND ~E BO~OW~: . ~ O/~ R,~ P- ZIE(;LER 'B1 JIJN 2 'iff MORTGAGE SECUR~ F~RE ADVANCe. ~S MORTGAGE is mad~ ~ ~y ~ of ~N~ ~02 , ~tw~n the (herein "Borrower")and Mortgagee · BENEFICIAL CONSUIdER DISCO. JNT COMPANY DIB/A BENEF I C I AL MORT~AOE CO OF PENNSYLVAN I A . a corporation organized and exJs;ing under ';he laws of PENNSYLVAN I A , whose address is 1634 SOUTH IdN~ET STRP. J=I, ELIZ/~ETHTOWN, PA 17022 (herein 'Leader") ......... - The following paragraph preceded by a checked box is applicable. ~ WHEREAS, Borrower is indebte<l m Lender in ~he principal sum of $ 159,241.65 evidenced by Bo~,ower's Loan Repayment and Securiw Agreement: or Secondary Mortgage Loan Agreement de,ed JUNE 26, ZOO1 and eny ~tsions or renewals thereof (heroin 'Note,"), providing for monthly installments of principaJ and interest, including al~y.adjustmen~ '¢o the amount of paymfats or the conWac= rate if that ra~e m vm'Ixble, wllh the. balance of the indebtedness, if not sooner paid, due and payable on JUNE 26, 20:~1 ; WHEREAS, Borrower is indebted to Mnder in th; principal sum of $ or so much thereof as may be advanced pursuant to Borrov/er's R~volving Loan Agreement dat~ and extensions' and renewais th~renf (herein 'Not~"), providing for monthly instalimenzs, and interes~ at the rate and undo' the terms specified in the Noze, including any ad~u~men~s in the interest ra~ if ~hal 'rate is variabl~, and providing for a credit limit szat~ in the principal sum above and an initial advance of $ ; TO SECUP~ to Lender the r~paym~nt of (I) th~ indeb*edn~ss evidenc~l by th~ Note, wi~ Mt~t tilden, includ~g ~y in~ if ~e coa~ct rate is v~ablc; {2) futu~ adv~ und~ any Revolving ~an A~ment; (3) ~ ~ym~nt of ~1 oth~r ~ms, wixh int~ zh0~ adv~ in accor~n~ h~ewi~ ~ p~t the ~fiW of tM~M~gage:~nd (4) thc ~rfo~ce of ~e ~v~anU . _ and a~m6n~ of Bo~r ~er~a ~6~{~rower d~ h~mby m~ge ~nt ~d qonvuy to ~ndec and ~nd~'s s~¢~ ~d ~ lh~ following ~i~ ~y lo~a~ in th~ ~umy of C~RLA~ Commoaw~ of P~lvania: ~T eERTAI~ PROPER~ SZ~T~ I~ ~ ~SHIP OF MO~OE IN ~ ~ OF ~~ ~ ~O~ OF ~SYLV~IA, ~IN~ MORE ~LY DES~IBED I~ A D~D DAT~ o~/28/2001 .~ ~CO~ED 0{/02/2001, ~ON~ ~ ~ RE~RDS OF T~ CO~Y ~ STA~ SET FORTH ABO~, I~ D~ED VOL~4E 241 P~E 1021. TAX MAP OR PARCEL ID NO.: 22-12-0350-019 00 lTY. Sn 10 TOGETHER with d[ th~ improvemeatz no~ o~ h=~ ~ ~ ~ p~y, and ~m~, H~, a~ ~d ~ all ~.which shall '~ d~m~ ~ ~ and ~a n a ~t of ~y ~ve~ by this ~; ~ ~1 of ~e f~g, to~ with ~ ~y (or I~ehold ~ if ~s M~go is on a l~hold ) are ~nd~r rd~ ~o~ zhe Bo~w~ ~v~n~ ~ B~w~ is lawf~ly ~ of ~e ~e h~by ~n~y~ m m~, ~ ~d ~y ~ P~y. ~d t~t ~he p~y is '~, exce~ for en~b~ of ~ ~w~ ~n~ ~ar Bo~wec w~m ~d ~H ~d g~r~ly U~FO~ COV~$. ~w~ ~ ~ cov~ ~d a~ ~ follow~ I. Psym~t of Pr~al s~d hi~ ~i Vs~able ~s. ~s m~ ~r~ all ~nd~l and in~ d~ ~ a ~able m~ lo~ ~e ~nt~c$ ~ d ~ and ~ym~t may ~ ~b~ w c~ ~ ~vid~ ~ ~e No~. B~w~ ~] ~mpfl7 ~y when d~ all amoun~ (including ~mi~um ~ pi~ u~ de~o~i ~, if ~y) which ma~ a~ i~lmen~ ~ h~,~ i~n~ pl~ ~e~lfth 9f y~rly p~mium in~lm~ i~, ~ a~, ~l ~ ~bly ~m~ initi~ly ~d fwm ~me m time by ~d~ on lhe ~ of ~m~ ~d ~IM ~d ~ble ~m~ ~f. Bo~w~ ~l not ~ ob[i~ ~ m~ ~h · ~ym~m of F~ ~ ~ ~ ~ ~t thai Bo~r m~ s~h ~ym~ ~o ~ hol~ of a m~e or d~ of ~ if ~ ~l~ is an i~l l~der. H ~w~ ~ ~ ~ ~d~, ~e F~ ~l ~ held in ~ i~l~on' the de~ o~ ~un~ of whi~ a~ i~ or Im~n~ by a ~ or ~e a~n~ (~l~iq~ ~d~ if ~ is s~h an i~ilmion). ~ ~l a~ly lhe F~ to pay ~d. ~x~, ~, i~ce ~mlums and ~ound ~n~ ~ may not ~ for ~ holing and a~lying ~e ~, ~ly~ng v~if~ng ~d ~m~l~g ~d ~en~ ~d ~M, u~ ~d~ ~ Bo~w~ ~t on ~e Funds ~ · ,. ~d 'appli~ble law ~i~ ~ ~o' make ~h a ch~. Bo~ ~ ~ may a~ in lhe ~me of ~gon of ~s Mo~ $hal h~t on ~c ~ s~il ~ ~id ~o B~wer, and unl~ ~h a~m~l is m~ ~ a~mbl= law ~ui~ ~ch inl~ w be ~d, ~d~ ~ll w ~y ~wer any in~ or ~ on ~ ~n~. ~d~ s~El ~ve to ~w~, wilhoul char~, ~ ~n~ ~fin~ ~ ~ ~ ~ing ~ md ~M~ w ~= Fu~ ~d ~he ~ f~ whi~ ~h ~MI w ~ F~ w~ madc. ~ Fu~ ~ pl~ ~ addiii~ ~ for ~e ~ms s~ by If lhe amounl of ~ ~ F~ .......... ~yable ~ ~ ~e ~e ~ Of ~. ~c~..insu~ l~miums a~ ~und r~ s~l exc~ · ~ amo~t ~ui~ to pay ~id ~; ~en~, i~r~e p~iu~ and ~ mn~ due, ~h ex~ s~ll ~ a$ Bo~w~'s o~o~ ~ih~ ~mptIy ~d W ~w~ or ~ted to Bo~w~ on m~y i~lm~ of ~ If ~e amoun~ of the ~ hgd by'~d~ ~11' not ~flci~nl ~o ~y ~, ~m~, i~ ~iu~s ind [~n~ ~pm ~ lhey-f~l due; ;~ow~ ~1 ~y ~ ~ any ~mount n~ ~ ~;[e ~'t~ d~i~ M one ~ more p~ Upon ~ym=t in [~i of.aii,'~ms ~d .~y t~. M~:g~g:, ~n~ ~mpfly'.. ~w~ ~y f~ held by ~. ff u~d~ para~ph 17 her.~f ~e Pm~ is ~ld 0t-01~01 16 ' .[., : PiO01212 is otherwise acqulr~d by L~ader, Lender shall apply, no la,er than/mm~a~ely pd~r ~o ~ha ~e of the Pm~y or i~ a~ui~fion by ~nder, ~y F~ds held by ~d~ a~ ~e ~ime of appllca~ion alai~ the ~ s~u~ by ~s Mo~ga~. 5. Appli~alion of Paym~ts. Exit for lo~ m~e p~uant lo ~e P~ylv~a ~um~ Di~unt ~mp~y Ac~ all paym~ rwei~.by ~der u~r the No~ and p~a~p~ 1 ~d 2 hanoi ~11 be appli~ by ~ fi~ in ~ym~t of amoun~ payable to Lend~ by Bo~ow~ ~der ~agraph 4. Prior Mo~s and D~d of lr~l; ~vi~s; Li=ns. Bo~wer ~1 ~dorm gl of Borwwer's obli~fio~ ~r ~ montage, ~ of t~ or oth~ sexily ~ment wi~ a lien w~oh ~ pdodty ov~ t~s Me.gage, includi~i ~wer's cove~ ~ m~e ~ym~ wh~ du~. Bo~ower ~ ~e P~ w~ch may a~ a ~od~ over ~ Moth.ge, ~'l~hold ~ym~ or ~o~d ~, if any. . -- · - 5. Hazard I~utance. Bo~w~ s~ll k~ ~e im~v~ now ~ng or h~t~ vr~ on ~he ~mp~y insu~ agalnst I~ by ~, hazar~ inclu~ wi~n :he ~rm '~d~ cov~g=,' ~d ~uch o~ ha~r~ ~ ~ad~ may r~ui~. The i~ o~er ~viding the io~urance s~l ~ ~os~n by the Bo~w~ subj~t to a~rov~ by favor of and ia a form ~bleto ~n~r. ~der shall Mve ~e ~t ~o hold the ~li~ and ~ewals ~spdodty o~ l~s Mo~. may m a~ pr~f of 1~ if not mad* ~]y by.~ower. If ~e P~ is a~n~n~ by Bo~ow~, or if Bo~w~ fails 1o ~nd ~ ~d~r within 30 ~ys imm ~e da~ nofic= is ~I~ by Lm~r to ~wer t~t ~e i~c~ c~d~ off~ 6. Preservation ~d Msinten~e of Propany; L~eholds; ~adominiums; Planned Unil Developments. ~w~ ~H ke~ the Pw~ in g~d r~r and sh~l not ~mmit w~te or ~rmil impairment or d~io~ion of the ~ ~d s~l ~mply with ghe ~ M~tg~e i~ on a l~ehold. If ~is Mortgage is on a u~t in a ~ndomi~um or a p~ ~l d~eiopmea~, Bor~w~ ~all p~m all of Bo~w~'s obllga~o~ un~r ~h= d~la~on or cove~n~ c~aling or goring ~e co~minium or pl~ned u~ devel~en}, the b~laws ~d rolls,oas of ~ndomiaium ~pl~ unit d~eiopm~t, ~d co~t~t~oum~. 7. Protection of Lender's Sev~ity. If ~w~'f~ls'to ~t~ ~ ~ve~n~ aad~=em~a~ conmin~ in ~is M~I~ or if any acfi~ or ~ng is commence.which mat~lly dt~ Lend~'s im~ in tho P~y, ~n ~dor, at ~d~'s o~ion, u~n aoti~ to Bor~w~, may make s~h a~anc~, disb~ such ~ma, inclu~ng r~bl~ at~moys' f~, and lake ~h ~ion Any amoun~ ~sbur~d by ~d~ pu~t ~o ~his ~a~ph 7, wi~ inl~ tha~n, at the oonWa=t ~te, shall ~me ~fiong indabt~ et Borrow~ ~ by this Mo~gage. U~ B~ww~ and L~r ag~ to o~h~ terms of ~ym~t, s~h amo~ s~a bo pa~bl~ u~n.nofi~ from L=ad~ ~w~ requ~ag ~ymen~ ~h~oL Not.ag ~n~ia~ in ~his ~ph 7 ~1 ~uir~ L~d~ ~o in~r a~ el~ or ~ aa~ a~ion h~reunder, 03-01-01 ~6 8. Inspection. Lender may take or cau~ to be mnde returnable entrie~ u~n ~ i~o~ of P~y, ~ovi~ ~t ~ ~l ~ve B~er n~ ~br zo my ~h i~fion r~ble ~ ~or ~ a~ ~ ~'s int~ in ~ ~. 9. Cond~iion. ~e ~ of ~y awa~ or ~aim ior ~ma~, ~t or ~, ~nn~on ~ ~y ~g~ ~ ~ ~i~g of ~e ~y, or pa~ ~f, or f~ ~nvey~ ~ ~m~fio~ a~ h~ ~M =d ~1 ~ ~id to ~r, ~ ~ the ~0 of any ~ of ~ or ot~ ~ ~ent ~ ali~ which ~ ~od~ ov~ ~is Mon~. 10. Bo~ower Not Rel~sed; For~nce By Lead= Not a Waiver. ~ of the ~me for s~r ~ in~ of ~w~ ~I not o~ to ~, ia any m~, ~ ila~li~ of ~e odg~l ~w~ ~d ~w~'s ~ ia iat~ ~d~ ~1 not ~ ~u~ ~ ~m~ ~i~ a~h ~ or ~e to ~ time [~ ~yment or ~ mod~y amo~zalion of ~e sums ' ~' b~ffii~$g~*by-~m~f=an~d-~.b/-~e-~g~l-~w=, and -Bo~w~'s dior~ ~ a~li~ble law,~l not ~aw~of~p~l~m~ ~y~ right or ~y. 11. Su~s ~d ~si~ Bound; Jolt ~d Serial LhbiUty; C~s. T~ ~v~ and a~menm h~n con~ ~1 ~, ~d ~ dgh~ h~u~ s~l inu~ ~, the ~ve s~ and ~ of ~ ~d ~w=, =bj~ m the ~i~ of ~ph 16 h~L AU ~v~a~ ~; of ~ow~ ~ll ~ ~int and ~[. Any ~mw~ w~ ~ ~ ~, b~ d~ not in~ ia the ~y ~ ~ ~ ~ ~-~i,a of ~s M~ge, (b) is not ~[ly liable on ~= No~ m~ifi, ior~, or m~ ~y o~r a=omm~go~ wi~ ~g~d m ~e ~s o[ t~s M~gag= or ~= No~ Bo~w='sln~t in ~ ~. 1 ~ Noti¢~ ~pt t~ any no~ u~a~li~ble law to ~ g~in ~ot~ m~n~, nog= m Bo~ ~ for in ~ Yon~ ~1 ~ g~n by ~v~ng k or by mail~g ~h notice ~ m~! ~ ~ ~w=r at ~ ~ A~ ~ at s~h o~ ~ ~ Bo~w~ ma~ ~ by no~ ~ ~ ~ ~ ~n, ~d (b) any no~ to ~ ~1 ~ gven by c~ified mall ~ ~s ~ ~d he~ ~ ~ ~h o;h~ ~d~ ~ ~ may ~at= by notice Bo~ ~ ~ h~n. ~y no~= ~vi~ for in ~s Mo~ ~all be d~mM ~ have ~n gi~n ~ ~wer ~ ~ wh~ gv~ in ~ m~ ~al~ h~ n. 11. ~ovem~ ~w; S evers~it~. ~e ~m ~d 1~[ laws a~li~ble w ~is Moa~ a~ll be la~ of ~ j~i~on in w~:h ~e P~y is l~I~, Tho foregoing sm~ ~l not limit t of ~ law W ~s t t~s ~g~ or No~ w~eh ~ ~ g~ df~ wi~o~ ~e ~i~ng ~o~ ~d W ~ ~d ~e pwvido~ Mor~ ~d the Not~ a~ ~l~d io ~ ~erable. ~'~ ~n, '~,' ....~ ~d f~' incl~e ~l s~ms ~ the ~ not pw~l~ by a~licablelaw ~ limi~d ~i~ 14. B~wer's ~py. ~w~ ~1 ~ i~ a ~o~med oopy of lh~ NoI~ aM Mor~ althe gm e of ~ ~ s~ ~fi~ I f. Rehabilitation ~ A~m~t B~w~ ~l fu~ll ~ of ~ow~'s ob[i~go~ und~ any hume ~hs~li~fi~, impwv~nt, ~r, or o~ Io~ a~ee~l which ~ow~ ~ in~ ~r, L~, at ~d~'s op~on, may r~ ~ow~ m ex.ute'and ~llv~ ~o ~nd~, in a fo~ ac~ble w ~d~, ~ ~m~t of any ri~, c~ or de/e~ w~h ~rww~ ma~ haw aiai~ ~ni~who s~pl~ la~r, ma~vic~in conn~on wkh/mpwvem~ mad~ ~o ~e -5- 16. Transfer of the Property. If Borrower sells or ~'a~fcrs all or any pan of ~hc Pro~, or ~ int~ ~h~n, e~l~ding (a) the cr~ of a li~ or encum~ance ~u~ ~o t~ ~o~gage, (b) a ~a~f~ by dc~, d~t, or by o~on of law u~n the d~ of a ~nt tc~% (c) ~he.g~nt of ~y lo.hold in~c of ~r~ 1,~ or le~ not cont~ning an o~ion ~o purc~c, (d) t~ ~on of a purc~e money ~ity in~r~ for ho~old a~iian~, (e) a l~ ~ a ~afive ~ul~ing fr~ ~ dea~ o~ a ~w~, (f) a gra~er wh~ the ~ or ehild~n of lh~ ~o~ ~e~e an owner o~ th~ pro~,, (~) a .~ mi~ing f~m a d~ of di~ol~ of m~a~, le~ ~arsxion ag~t, or f~m an in~iden~l ~ set~em~t a~m~t, by which ~ ~ of the Bo~ow~ ~om~ m owner of lhe ~y, {h) a t~ into an ~ ~vos W~ in whigh Bo~w~ is ~d r~m~m a benefid~ ~d w~ch g~ not relate to a l~ of ~gh~ o~ oecup~ in ~ ~o~y, or (i) my ogh~ ~fer ~ ~tion d~ in ~n~o~ Wm~ by F~fl Home ~ Bank ~d, Bo~w~ ~1 ~ ~o ~ ~bmi~ iffo~a~on r~r~ by ~d~r to ev~uat~ ~ te~ ~ if a ne~' lo~ w~ ~ngvmn~:~ ~e wa~e~. ~wer will contin~ to ~ obli~t~ ~der ~e No~ and ~s Mortgage ~1~ ~nd~ ~1~ ~ow~ If ~d~ do~ noI a~ ~o such ~ or ~, ~er may d~ fllof the sums ~u~ by Mon~ ~o ~ imm~ntely d~ ~d ~yable. If ~ exe~ ~ op~on m ne~d~, ~nd~ ~1 mall Bo~wer noti~ of a~el~tion in a~r~ wi~ pa~aph 12 h~[. S~h no~ ~11 p~vide ~od of not le~ ~n 30 ~ from the da~e ~e noti~ is ~1~ or ~lJve~ ~in w~eh may ~y t~ sums d~la~ due. I~ Bor~w~ f~Is to ~y ~h ~ms ~or ~ ~ ~rafion of ~h ~fi~, ~nd~ may, wi~o~ ~ no~i~ or ~d on ~w~, in~k~ ~y ~m~i~ ~mi~ by ~aph 17 h~f. NON-U~ COV~NA~. Bo~w~ ~d ~r tu~er eove~g ~d a~ ns follow~ 17. Ac~ieralion; ~medies. ~pt ~ provided in pa~aph 16.he--f, upon Borrower's breach of ~y ~ve~nt or n~eem~l of Bo~ower in Ibis Mo~.inclu~n~ the ~v~ls to pay when due any sums s~ured by th~ Moaga~, ~nder p~or lo a~leralion shah give noti~ to Bo~ow~ as provided in pnra~aph 12 h~eof sp~ifyin~ (I) ~e b~aeh; (2) the a~ion requi~d to cure suoh b~c~; (~) a date, not l~ss th~n ~0 days from lhe date the nmie~ mailed to Borrower, by w~ch such b~h m~sl b~ cu~d; ~g (4} lh[l failure to eu~ such bre~h on or befo~ the da~ sp~fied in th~ nmi~e may result in activation of the sums secured by ltis Mo~pge, fo~cl~u~ by judioial ~eeding. and ~1~ of ih~ ~o~y. ~e noii~e shall fu~h~r i~orm B~wer of lh~ ri~t 1o reinstale after u~l~ralion and the right to assert in the fo~ciosu~ pro~dln~ lhe nonex/s~nce of a default or any other defense of Borrower to a~elerati~ and fo~losure. If the b~ach is not cured on or befog the sp~ifled in the notice, L~der. al L~ad~'s option, may ~lare all of lh~ sums secured by this Mort~e to ~ imm~dlntely due'and'paysblff'~ith~Cf~3i~ dem~d in~ ~ f~elose lfiis Mo~te by judi~al ~d~ ~nder s~ll be entitled lo ~[1~ ~ such proceedin~ all exp~nses oF ~oreclos~e, includ~, bul not limited Io, reasonable attorneys' f~es ~d costs of documentary e~idence, abstra~s and title 18. Borrower's Righi to ~i~m~. Notwi~n~ng ~nder's a~e~on of ~e sums by t~ Mor~ due m ~mowee's ~h, Bo~w~ Shnll ~ve ~e fight m have any ~ings begun by ~nder to ~o~ l~s Mop.ge di~ntin~ at ~y ~me ~or ~o enl~ of a jud~mt eniordng Mo~gage i~: (a) Bo~w~ pa~ ~r fll ~ms which would be t~ d~ und~ ~ M~ge and the No~ Md no a~l~tlon ~curr~; (b) Bo~w~ eu~ all b~eh~ of ~y o~ cov~nnls 03-01-01 M~ P~Oli15 sgreemenU~ of Borrower contained in this Mortgage; (c) Borrower pay~ all reasonable expenses incurred by Lender in ~forcing the covenan~ ,and a~'~men~s of Borrowc~' c0n~ai~ed in ~his Mortgage, and in enforcing Lender's remegics as' provided in paragraph 17 hereof, incluclin~, b~ not limited to, reasonable am~'neys' ,fees; and (d) B~f~ower ~ces m~ch nclion as Lender may reasonably require ~o aasu~ that the Hen of this' Mortgage, lander's interest in the Proper~y and Borrower's obllgagon to l~y the sums secured by dlis Monea~e s~ll co~nti~ue unimpaired. Upon such payment and sure by Borrower, this ldor~ge and the obli~ntio~ secured hereby shall remain in full force and effec~ as if no -__-ee_~-aiion hsd occurred. 19. Assi~n~nt of Rc~; Appointm~i of R~.eiver. As addlgonel security hereunder, Borrower hereby assigns to Lender the rems of the PropertT, proviged that Borrower shall, l~rior to acceier~tlon ~nder paragraph 17 hcrenf, in abendonment of ~he Property, have the right io collcc~ and retain s~h reals u they become due and payabl~ · ' U~h'-a~;-l~'au~n' u~d~'~l~'r~-~r~iih"-?'hereof or-absudcnment of .th~ 'Propen'y, Lender shall .be-- cntitled to here a ~eiver aplk~nted by a cct~ t? enter upon, tal~e ~on of and mnna~ ~ P~per~ and ~o collect ~1~ ren~s of the Proper~y includin~ th~ pas~ due. All rems collected by the receiver shall he applicd firs~ to payroll of the ~ o! menagement of the Proper~y and collectlon of rc~s, incl~tin~, but not'limi~ ~o, n;celver's fees, premiums on receiver's bonds and re~sonshle a'aorlleya' fc~, and ~ ~o the sums sec~ed by this Mon~a~e. The receiver shall be liable zo a¢cel~lt only for those rem~ ac~tugly received. 20. Release. Up~m paymen~ of ail s~rns ~cured by this Mor~agc, Lender shall release this Mor~p~e witho~ char~ ~o Borrower. Borrower shall pay all costs of r~orda~ion, ii any. 21. Waiver of Home.eng. Borrower hereby waiv~ all right of homt~end exemption in the Propeiny ~der m~e or Federa! law. 22. Int~st Raie Atter lud. gment. Borrower a~'ecs the intere~ ra~ p~yablc af~er a judgment is efltered on the lqote or'in an action of mort~aic ~oreclo~rc shell be '.he ram s~al~:d in the Note. 031-01-01 MTG PA0012A6 lllflgaillllallllBIllllilllOllllgll ,llllllflllllllflflgWl ll .?. REQUEST FOR NOTICE OF DEFAULT AND FORECLOSURE UNDER SUPERIOR MORTGAGES OR DEEDS OF TRUST Borrower and Lender r~qu~st the holo~r of any mortgage, ~ of trt~ or other encumbrance with a Ilea which has priorky over this Mortgage to givn Nofic~ to Lender, at Lender's ncldr~s~ set forth on page one of this Mortgage, of any default under the superior encumbrance and of any ~1~ or other foreclosure action. ' ' '~ ~/" LII~DA BONNER -Bo~ow~r I hereby certify that the precise sddres~ of tho Lender (Mortgagee) i~_ 1634 SOUTH MARKET STREET ELIZABETHT0~N PA 17022 On behalf of the Lend~-. By:. JAI~S A. RO¥IT0 Title: HHA~CH i,/AEAGER COMMONWEALTH OF PENNS~VANIA, ~CAST~ Counxy ~ I, j~S A ROVITO a No~ Public in ~d for ~d ~ty ~d s~, do h~by ~ ~ CL~E N. B~ ~ CLUE L. B~ ~D LI~A BO~ BOTH SIN~LE~ ~/T/~/S ~aally known to mc W ~ the ~m~ ~n{s) who~ ~e(s) ~ ~b~ ~o ~he foxing i~r~m~l, ap~cd ~to~ me tMs ~y in ~rs~, and ac~owled~ ~ T he y ~ ~d ~liv~ th~ ~d ins~m~t ~ ~EIR f~ vol~ a~, f~ ~ md ~ th~n ~ fo~h, 1634 S MARKET ST ELIZABHTHTOW~ PA 17022 (Ad~h'~ss} (Spaco B01ow This Line R~rwd For l~'%r and ~ord~r) I Cc i ,t this to be recorded R rn To: R~ Pw~ng S~ In Cumbei PA S77 ~ont R~d , ~mhu~t, ~ ~1~ e00 1725 0 PA0012A7 .: .. GOOD FAITtt 'ESTIMATE (Pege I of 2) Date: OB / 1 ~ t 200a 0B: 1~ (including required providers disclosure) 06/13/2001 LENDER: Beneficial Consumer Discount Company D/B/A Beneficial Mortgage Co of Pennsylvania The information provided I~low ~fl~s ~tima~ of thc charg~ which you are likely ~o incur at the settlement of loan. Th~ fe~ are ~ma~s; the ~:ual c~rg~ may be m~ or less. Your tmmae~on m~y not {nvolv~ a f~ for *ve~ item Tho numbem li~ed b~ide the ~imal~ g~emlly corr~nd m the num~ lin~ mnuin~ in ~ ~l or H~-IA ~lement gutemem which you will ~e ~eiving a~ ~*tlement. The ~1 or HU~IA ~lem~nt ~tatement will show you the actual cost for items paid at settlement. ITEM HUD-I/I-IUD-IA Amount or Range Loan Origination Fee ("Application F~¢" and/or "Cloning Costa") 801 $ 12000. O0 Loan Di~ount F~ ("Points") 802 $ Appraisal Fee 803 $ ~nn nn Me.gage Bmk~' F~: 807 $ 1N:mum~nt Preparation F~ 808 $ $~tlement or Clo~ing Fee ('Escrow F*e') 110t Abstract or Title Search 1102 $ Title Examination 1103 Title Insurance Binder 1104 Attorney b'~ 1 I07 Title In$uranc~ 110g $ 1193,7,5 Recording Fe*a 12~ ] $ 31. _50 Clty/(]ountyFfax Stemp~ 1202 $ S~tcT$x~taml:~ 1203 Oth~r F~ $ $ $ $ $ $ Th~.~ emimete~ am provided pursuant to the P,~al Esmt* Settlement Pmmdur= Act of 1974, ~ amond~ (~PA). Addi~onal information ~ ~ found in the H~ Special Information B~klot, which is to bo wovided to you ~ your mort~ge ~oker or lender, if your a~licalion i8 to purc~ r~id~nfial mai pro~y and tho Lo. er will ~ a fimt li~ on tho p~. R~f~ ~ Exhibit A for a list of required providem of ~lgmenr ~rvi~, APPLICA~ (called "You", 'Your'}: L~nda' R:~ Bonne~ Clyde' L Bertram ADDRESS OF PROPERS: 1023 York Road, Dil~sburg PA 17019 Representati ye FORM 4353 U$435311 EXltlBIT A (Page 2 of ~) THIS SECHON TO BE COMPLr.:t't~.J~ BY LF~'DER ONLY IF A PARTICULAR PROVIDER OF SERVIC~ IS REQUIRED. I.i~ted belnw are providers of ~ervice which we require ynl] to ~ The chm'ge~ or ra~ge~ indi~alaed in the Good Faith Estimate above are based upon the corresponding charge of the below deggnated ptovider~ ITEM NO. NAME dc ADDRESS OF PROVIDER 803/1102/1108 Integrated Real Estate Proceasing ~201 801 & 8O8 TELEPIIONE NO. 800-93~7464 290Bilmarl~ive, S~ie301 Ht~burgh, PA 15205 Cu~be:land Coiiacy Recorde: of Deeds (717)240-6370 I Courthouse Square, Ca~Ltsle PA 17013 Beneficial Consumer Discount Company D/B/A ~eneficial liozc§age Co of Pennsylvania (717)367-1919 163& South Hatkec Streaky,Elizabeth:own PA 17022 · Lender has repeatexily used or required borrowers to use the services of this provider. FORM 4353 [07-11-00) U$4353T2 f fllllgifllllagllgm lgfllll llBellilggllllllirllgl lflllllgll8 0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CLYDE L. BERTRAM and UNDA R. BONNER, Plaintiffs BENEFICIAL CONSUMER DISCOUNT COMPANY, dlb/a BENEFICIAL MORTGAGE CO OF PENNSYLVANIA, Defendant CIVIL ACTION NO. 03-t249 {JURY TRIAL DEMANDED) CERTIFICATE OF SERVICE I HEREBY CERTIFY, that I served a true and correct copy of the foregoing Plaintiffs' Complaint in the above captioned matter by U.S. Mail, postage prepaid, first class, upon the individuals listed below as follows: Linda Levitsky, Esquire Whittlesay McDowell & Riga 46 W. Main Street P.O. Box 127 Maple Shade, NJ 08052 Attorneys for Defendant Date: Step'l're~. Portko, Esquire 101 South U.S. Route 15 Dillsburg, PA 17019