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HomeMy WebLinkAbout03-1563IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. I~/~.~ 2003 Civil Action - ( ) Law ( X ) Equity KNAUER & ASSOCIATES, LSC 411 A East Main Street Mechanicsburg, PA 17055 Plaintiffs : Shirley Kimmel : 334 Charles Road : Mechanicsburg, PA 17055 : : Cavalry Investments, formerly CONSECO : P.O. Box 75428 : St. Paul, Minnesota 55175 : Defendants Versus : : JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue writ of summons in the above-captioned action. X David W. Knauer David W. Knauer, P.C. 411-A East Main Street Mechanicsburg, PA 17055 (717) 795-7790 Writ of Summons shall be issued and forwarded to ( ) Attorney ( X ) Sheriff / / / / · g~iture o'f A~o4ne'y Names/Address/Telephone No. of Attorney Supreme Court ID No. 21582 Date: April 4, 2003 WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. Date: t -- Deptffy ( ) Check here if reverse is issued for additional information PROTHON. - 55 ./ -.. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KNAUER & ASSOCIATES, L.S.C. Plaintiff Vs. Shirley Kimmel, and Cavalry Investments: Formerly CONSECO COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. LAW IN EQUITY .PETITION FOR INTERPLEADER 1. The Plaintiff and Petitioner herein, Knauer & Associates, L.S.C., is a corporation organized and doing business under the laws of the Commonwealth of Pennsylvania, with an address of 411-A East Main Street, Mechanicsburg, Pennsylvania. 2. The Defendant Shirley Kimmel is an adult individual with an address of 334 Charles Road Mechanicsburg, Pennsylvania. 3. The Defendant Cavalry Investments, formerly Conseco, is a corporation doing business address of Cavalry Investments, P.O. Box 75428, St. Paul, Minnesota 55175. 4. The Plaintiff represented the Defendant Kimmel as a result of a vehicular accident in which she suffered i_njuries. 5. The tortfeasor in the accident had insufficient insurance to pay the damages to the Defendant Kimmel that she would otherwise be entitled to receive. 6. After settlement of the underlying action, the Petitioner represented the Defendant Kimmel in her underinsured claim. 7. The Defendant Kimmel settled her underinsurance claim against her own insurer for $95,000. 8. During the pendency of the underinsured I~roceeding, the mortgagee Conseco, initiated collection proceedings against the Defendant Kimmel and her now deceased husband on one of the mortgages. 9. Subsequent to reaching an accommodation with Conseco on the mortgage, it commenced a mortgage foreclosure proceeding in Your Honorable Court on the remaining mortgage captioned Conseco Finance Consumer Discount Corn an v. Clair F. Kimmel Jr. and Shirle A. Kimmel docketed at No. 02-3039. 10. The Defendant Kimmel and the Defendant Conseco had not made the undersigned aware that there was a second mortgage that Conseco held until after he negotiated the forbearance agreement with Conseco. 11. The undersigned represented the Defendant Kimmel in that proceeding. The Plaintiff discontinued that action on February 25, 2003 after Your Honorable Court denied its motion for summary judgment on December 30, 2002. 12. Wit'h-the authOrizatiOn-of.t,h~eO~endant~Kirnrnel., thePefitiOner: ...... ' ......... '. ..... negotiated an agreement whereby the Defendant would pay to Conseco the sum of one hundred dollars ($100.00) until resolution of the underinsured proceedings and that Conseco would be paid out of the settlement proceeds. 13. When the undersigned requested the payoff figure for the mortgage and requested that it be limited to the back mortgage payments, Cavalry refused to provide that information and took the position that it would only accept the entire amount because the Defendant Kimmel had breached the agreement by non-payment of the one hundred Dollars ($100) until the underinsured proceedings reached their conclusion. 14. Although the undersigned negotiated with Cavalry Investments to reduce the payoff from the outstanding balance and charges of over forty three thousand dollars ($43,000+) to a lump sum payment of thirty five thousand dollars ($35,000) provided that that payment be made on or before March 31, 2003, the Defendant Kimmel refused to authorize the undersigned to provide the thirty-five thousand dollars ($35,000) to Cavalry Investments and instructed the undersigned to provide all funds after deduction of fees and expenses to her. 15. The undersigned informed Richard Torreson of Cavalry Investments the information that the Defendant Kimmel refused to authorize the undersigned to make any payment to Cavalry Investments, he made demand for the full payment of ($43,000+). 16. The undersigned has two parties each claiming the same funds and therefore requests permission to interplead the sum of $44,000 into court to the ProthonotarY-tO.be held:~in.an interest.be-aring.a:ccC~unt wi~..th~ inte:rests 13'ein~g paid to the Defendant Kimmel. 17. The Petitioner has disbursed the balance of the settlement funds after deduction of fees for the representation of the Defendant Kimmel in the underinsured proceeding, the mortgage foreclosure action and personal documents. WHEREFORE, the Petitioner prays that Your Honorable Court will issue an Order for the Petitioner to interplead the aforesaid amount with the Prothonotary to be held by the Prothonotary in an interest bearing account with interest to be paid to the Defendant Kimmel until resolution of the dispute between her and the Defendant Cavalry Investments. Date: April 4, 2003 Respectfully submitted, KNAUER & ASSOCIATES, L.S.C. Attorney for Plaintiff Attorney I.D. No. 21582 411-A East Main Street Mechanicsburg, PA 17055 (717) 795-7790 KNAUER & ASSOCIATES, L.S.C., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY KIMMEL AND CAVALRY INVESTMENTS FORMERLY CONSECO, DEFENDANTS 03-1563 CIVIL TERM ORDER OF COURT ~ day of April, 2003, a Rule is entered against AND NOW, this Shirley Kimmel and Cavalry investments formerly Conseco, to show cause why the within petition for interpleader should not be granted. Rule returnable fifteen (15) days after service. Any answers filed should be forwarded by the Prothonotary to chambers. By the~ EdgarB. y y, · :sal SHERIFF'S RETURN - U.S. CERTIFIED MAIL CASE NO: 2003-01563 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND KNAUER AND ASSOCIATES VS. KIMMEL SHIRLEY ET AL R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT ,CALVERY INVESTMENTS FORMERLY , CONSECO prepaid, on the PO BOX 75428 by United States Certified Mail postage 7th day of April ,2003 at 0000:00 HOURS, at ST PAUL, MN 55175 and attested copy of the attached WRIT OF SUMMONS with , a true Together The returned receipt card was signed by J. TAFFE 04/Z0/2003 on Additional Comments: Sheriff's Costs: Docketing Cert Mail Affidavit Surcharge 6.00 4.42 .00 10.00 .00 20.42 So answ . ~ ~ W~. Thomas Kline Sheriff of Cumberland County Paid by KNAUER & ASSOC. Sworn and subscribed to before me this. 22~day of A.D. on 04/14/2003 SHERIFF'S RETURN - REGULAR CASE NO: 2003-01563 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KNAUER AND ASSOCIATES VS KIMMEL SHIRLEY ET AL VALERIE WEARY , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon KIMMEL SHIRLEY the DEFENDANT at 1445:00 HOURS, on the at 334 CHARLES ROAD 7th day of April 2003 MECHANICSBURG, PA 17055 SHIRLEY KIMMEL by handing to a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff,s Costs: Docketing 18.00 Service 8.28 Affidavit .00 Surcharge 10.00 .00 36.28 Sworn and Subscribed to before me this 2 ~-W~_ day of ~P~otho~otary ~ t ' So Answers: R. Thomas Kline 04/14/2003 KNAUER & ASSOC Deputy Sher~ IN RE: KNAUER & ASSOCIATES, L.S.C. Plaintiff Vo SHIRLEY A. KIMMEL, AND CAVALRY INVESTMENTS FORMERLY CONSECO Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 03-1563 IN EQUITY ORDER AND NOW on this day of 2003, upon consideration of the Petition for Interpleader and the Answer to the Petition filed by Shirley A. Kimmel. It is hereby ordered and directed as follows: Knauer and Associates, L.S.C. shall immediately deliver to Shirley A. Kimmel, the net proceeds of her personal injury case in the amount of $44,000.00 (Forty-four thousand dollars). DATE JUDGE IN RE: KNAUER & ASSOCIATES, L.S.C. Plaintiff Ve SHIRLEY A. KIMMEL, AND CAVALRY INVESTMENTS FORMERLY CONSECO Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 03-1563 IN EQUITY ANSWER TO PETITION FOR INTERPLEADER. AND NOW, comes the Defendant, Shirley Kimmel, by her Attorney, James M. Bach, and files the within Answer to Petition for Interpleader: 1.-11. 12. 13. 14. 15. 16. ADMITTED. DENIED. Shirley Kimmel is not aware of any agreement to pay any proceeds out of her settlement proceeds. Shirley Kimmel, at all times relevant herein, believed that upon the settlement of her personal injury case, after deduction of legal fees, costs and expenses, that the net proceeds would be delivered to her by her legal counsel, Knauer and Associates, L.S.C. DENIED. Defendant, Shirley Kimmel, is not aware of any breach. Further, she is not aware of any agreement between herself and Calvary Financial. ADMITTED. Shirley Kimmel instructed Attorney Knauer to deliver to her the net proceeds of her personal injury case. Shirley Kimmel did not want to pay off a mortgage to Conseco, now Calvary Investments, at this time. Shirley Kimmel had a change in circumstances that would not allow her to sustain the mortgage obligation. DENIED. Shirley Kimmel is not aware of any conversations or letters exchanged between Calvary Investments and Attorney David Knauer regarding Calvary's demand for full payment of $43,000.00 (Forty-three thousand dollars). DENIED. Shirley Kimmel, the injured party, is claiming the $44,000.00 (Forty- four thousand dollars) in net personal injury proceeds being held by her attorney, David Knauer. Shirley Kimmel is not aware of any demand, formal or informal, by any other party to these funds. 17. ADMITTED. Attorney David Knauer has received $43,385.00 (Forty-three thousand three hundred eighty-five dollars) for legal services rendered by him on behalf of his client, Shirley Kimmel. - NEW MATTER 18. 19. 20. 21. 22. Shirley Kimmel owns real estate known and numbered as 334 Charles Road, Mechanicsburg, Pennsylvania. Subject real estate is encumbered by a first mortgage in favor of Blue Chip Federal Credit Union in the approximate amount of $46,500.00 (Forty-six thousand five hundred dollars), a second mortgage in favor of Conseco Finance, now Calvary, in the amount of $47,000.00 (Forty- seven thousand dollars) and a third mortgage in favor of Conseco Finance in the amount of $32,000.00 (Thirty-two thousand dollars). The aggregate amount of the mortgage debt against this real estate is $125,500.00 (One hundred twenty- five thousand five hundred dollars). The Kimmel real estate is valued by the Cumberland County Assessment Office at $84,100.00 (Eighty-four thousand one hundred dollars). See a copy of the assessment attached hereto and marked as Exhibit No. 1. Shirley Kimmel is a widow, and her monthly income is $1,300.00 (One thousand three hundred dollars). Based upon the mortgage debt against her real estate, and her present ability to pay her mortgage payments in a timely fashion, Shirley Kimmel has concluded that it is in her best interest to surrender this real estate to the secured creditors. Shirley Kimmel has defaulted on her payments to the secured creditors, and has indicated to them that they may proceed, by way of a mortgage foreclosure action against her, to recover their varying, respective interests. See letter of Attorney James M. Bach dated April 15, 2003, marked as Exhibit No. 2. The secured creditor that gave rise to the instant proceeding, Calvary Financial Investments, formerly Conseco, has a remedy at law, in the nature of a mortgage foreclosure complaint to advance their interest if they are unsatisfied with the payments by Defendant, Shirley Kimmel, into their mortgage account. They do not have standing or any interest in the net proceeds of her personal injury fired. Shirley Kimmel has respectfully requested that Attorney David K_nauer turn over to her, her personal injury proceeds, and he has refused to do so. The mortgage company, in this case, has a remedy at law for a mortgage foreclosure complaint, therefore, Mrs. Shirley Kimmel should receive her personal injury net proceeds immediately. WHEREFORE, Defendant, Shirley Kimmel, respectfully prays that this honorable Court order and direct that Attorney David Knauer immediately tender to her the proceeds of her personal injury case. Further, the Defendant, Shirley Kimmel, respectfully requests that this Court order and direct Attorney David Knauer to pay the legal fees, costs and expenses of Shirley Kimmel. Further, Shirley Kimmel, respectfully prays for all other relief that this Court may deem justified, necessary and appropriate. DATE: April 17, 2003 RESPECTFULLY SUBMITTED: JA~ M. BA(~H, ESQUIRE Attorney I.D. No. 18727 . 352 S. Sporting Hill Road Mechanicsburg, PA 17050 (717) 737-2033 VERIFICATION I verify that the statements made in this Answer are tree and correct. I understand that false statements herein made are subject to penalties of 18 PA. C.S. §4904, relating to unswom falsification to authorities. ~' //~' DEFEI~ANT DATE Form View.- public tax' file 3-31-2003.fp5 Page 1 6f 1 Form View ! public tax file 3-31-2003.fp5 Search Table View Viewing: ! of I Dl~trlot_Numb~r 10 Paro~Udsntlflar 10-22-0525-044 Map_~ufflx_Numb~r House_Number 3:34 Dlnmtion · tr~t CHARLES ROAD Ownsr_Nanm_l KIMMEL, CLAIR F & SHIRLEY Owner_Name_2 Land_Use_Code R Prol~rty_De~,criptlo LIving_Area 1024 CurrentLand_Valu 20280 CurrenUmprovemengValue 63820 Current_Total_Valu ~ CurrenLPreferred_Valu Acreags .18 CleanOreen..Status Taxable_or_Exempt 1 Sale_Amount 42500 Sale_Month 09 Sale_Day 17 Sale_CentupJ 19 Sale_Year 80 Deed_Book_and_Page 0029C-00523 Year_Built 1955 Home I Help EXHIBIT NO. 1 http://205.247.227.59:591/FMRes/FMPro?-db=public%20tax%20file%203-31-2003.fp5&-op:.. 4/17/03 JAMES M. BACH Attorney At Law 352 S. Sporting Hill Rd., Mechanicsburg, PA 17050, Tel: (717) 737-2033 April 15, 2003 Mary Tylenda Blue Chip Credit Union 5050 Derry Street Harrisburg, PA 17111 Re: Shirley A. Kimmel 334 Charles Road Mecharficsburg, PA 17055 This will serve as confirmation of our telephone conversation regarding my client, Mrs. Kimmel. I indicated to you that Mrs. Kimmel would not be making any further payments. I also advised that she would surrender the real estate at the appropriate time. You indicated that you would refer the matter to your attorney, Robert Kodak. By way of a copy of a letter to Conseco Finance, they are being informed of this decision. I am requesting that all inquiries be referred to my office. Next, I ask that all collection efforts cease and terminate. Kindly proceed through your various legal councils to commence proceedings to initiate complaint, and mortgage foreclosure. It is my understanding that Blue Chip has priority standing as the first mortgage holder, followed by Conseco with the second mortgage, and Conseco with a third mortgage. EXHIBIT NO. 2 Mary Tylenda April IS, 2003 Page 2 In the interim, my client has agreed to voluntarily list the real estate for sale. In the event that the real estate is sold for market value, the appropriate real estate agency will be in touch with Conseco regarding a potential "short sale" regarding the third mortgage. This should serve as a memorandum of record to all parties in interest. Respectfully, S M. BACH Attom~y-at-La~ Cc: Robert Kodak Conseco David W. Knauer Shirley A. Kimmel IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KNAUER & ASSOCIATES, L.S.C. Plaintiff COURT Of COMMON PLEAS CUMBERLAND COUNTY Vs. No. 03-1563 Shirley Kimmel, and Cavalry Investments: Formerly CONSECO LAW IN EQUITY PETITIONER'S REPLY TO THE NEW MATTER OF THE DEFENDANT SHIRLEY A. KIMMEL 18. Denied as alleged. The Petitioner avers to the contrary that: a.) as to the Defendant Kimmel's first mortgage with Blue Chip Federal Credit Union, hereinafter "Blue Chip", the Petitioner has no knowledge except from the April 15, 2003 letter of the Defendant Kimmel's counsel, James M. Bach, Esquire that the Defendant Kimmel attached to the Defendant Kimmers Answer to Petition for Interpleader and New Matter thereto? "Exhibit No. 2" thereof is a copy of Mr. Bach's letter of April 15, 2003 to "Mary Tylenda" of Blue Chip. In Mr. Bach's aforesaid letter, he stated that: This will serve as confirmation of our telephone conversation regarding my client, Mrs. Kimmel. I indicated to you that Mrs. Kimmel would not be making any further payments. I also advised that she would surrender the real estate at the appropriate time. You indicated that you would refer the matter to your attorney, Robert Kodak .... Next, I ask that all collection efforts cease and terminate. Kindly proceed through your various legal counsels to commence proceedings to initiate complaint and mortgage foreclosure. ] The Plaintiff marks the April 15, 2003 letter from James M. Bach, Esquire to Mary Tlyenda of Blue Chip Credit Union as Exhibit "A" It is my understanding that Blue Chip has priority standing as the first mortgage holder, followed with the second mortgage, and Conseco with a third mortgage. For whatever reason known only to Mr. Bach, he has advised the Defendant Kimmel not to pay her first mortgage and demanded that the first mortgagee bring a foreclosure proceeding. The Defendant Kimmel should have been current on that mortgage and Mr. Bach's advice will only increase the Defendant Kimmel's indebtedness to Blue Chip because of reasonable attorney's fees and interest; b.) as to the second mortgage that Cavalry Investments holds, the Petitioner by letter dated March 14, 2003 addressed to Conseco requested that company to provide the payoff on that mortgage.2 Mr. Torreson of Cavalry Investments contacted the Petitioner by telephone and provided him with the payoff on the second mortgage that as of March 31, 2003 was $ 43,000+. The Petitioner inquired of Mr. Torreson whether Cavalry Investments would take a lower amount for prompt payment of the balance on the mortgage. Mr. Torreson agreed to accept the lump sum payment of $35,000 good through March 31, 2003. If the Defendant Kimmel would have accepted that offer she would have saved over $8,000. The Defendant Kimmers counsel James M. Bach, Esquire informed her that she did not have to pay the mortgage and she informed the Petitioner that she had changed her mind and decided not to pay Conseco (Cavalry) in accordance with her prior agreement and refused to authorize the Petitioner to issue the $35,000 check to Cavalry Investments. The mortgage to Conseco that Cavalry Investments purchased provides for the addition of interest and counsel fees. Consequently, the Defendant Kimmel's counsel's advice is costing her the $8,000 plus savings that Petitioner had obtained as a settlement offer from Cavalry Investments and that cost is increasing daily by the addition of interest and will increase further with the payment of counsel fees and costs as the second mortgage provides; c.) as to the third mortgage Conseco holds, the Petitioner after reasonable investigation is without knowledge or information sufficient to form a belief as to the truth of the Defendant Kimmel's averment and strict proof thereof at time of hearing is demanded. 2 The Petitioner marks as Exhibit "B", attaches hereto and incorporates herein by reference thereto a true and correct copy of said letter. 19. The Petitioner after reasonable investigation is without knowledge or information sufficient to form a belief as to the truth of the Defendant Kimmel's averment and strict proof thereof at time of hearing is demanded. 20. The Petitioner admits that the Defendant Kimmel is a widow. As to the Defendant Kimmel's monthly income, The Petitioner after reasonable investigation is without knowledge or information sufficient to form a belief as to the truth of the Defendant Kimmel's averment and strict proof thereof at time of hearing is demanded. 21. Denied as alleged. The Petitioner avers that the Defendant Kimmel had informed him that she wished to pay down or eliminate her mortgages out of any settlement and that she had authorized the Petitioner to enter into the aforesaid forbearance agreement with Conseco to attempt to achieve that goal. As to settlement proceeds, Petitioner is holding the sum of $44,000 until disposition of the Petition for Interpleader. As to the balance of settlement proceeds, the Petitioner has disbursed those funds to the Defendant Kimmel in two checks totaling $9,724.15. If the Defendant Kimmel had proceeded in accordance with her agreement with Conseco, she would have utilized $35,000 to pay off a $43,000+ mortgage. The $8,000+ saving she had on the second mortgage plus the $9,724.15 proceeds would have totaled $17,724.15. If she were to have applied the sum of $17,724.15 to reduce the remaining mortgages, she would have only had a mortgage indebtedness of $60,775.85. Assuming arguendo, that the "Exhibit No. 1" of the Defendant Kimmel's aforesaid pleading is correct, the Defendant Kimmel would have had $23,324.15 of equity. Nevertheless, the Defendant Kimmel has followed the advice of Mr. Bach who has challenged the mortgages to commence suit against his client because he has advised her not to pay any of the mortgages. Consequently, the Defendant Kimmel will incur late fees, interest, attorney's fees for the mortgages and her own counsel fees to Mr. Bach to defend three mortgage foreclosure actions. 22(a). Denied as alleged. The Petitioner avers to the contrary that Pa.R.C.P. No. 1022 requires that: Every pleading shall be divided into paragraphs numbered consecutively. Each paragraph shall contain as far as practicable only one material allegation. The Defendant Kimmers counsel has not complied with that rule. Rather than object to the non-conformity to that rule, the Petitioner has designated his reply to the Defendant Kimmel's paragraph 22 as 22(a) addressed to the Defendant Cavalry and 22(b) addressed to the Petitioner. As to the Defendant Cavalry Investments formerly Conseco, the Petitioner avers to the contrary that the Defendant Kimmers pleading as to that Defendant should be answered by that Defendant and the Petitioner offers no opinion as to what remedies it might have against that Defendant. 22(b). Since Mr. Bach commenced representation of the Defendant Kimmel, he has made numerous calls to the Petitioner to demand that he withdraw the Petition for Interpleader and to release the settlement proceeds of $44,000 to him. On each occasion, the Petitioner has informed Mr. Bach that he had the Defendant Kimmers authority to enter into the forbearance agreement and requested him to read the file. The Defendant Kimmel's Answer to Petition 4 for Interpleader was dated April 17, 2003 and executed by both the Defendant Kimmel and Mr. Bach. On April 18, 2003 between 5:00 p.m. and 6:00 p.m., Mr. Bach again contacted the Petitioner to make the aforesaid demand. In response to Mr. Bach's question, the Petitioner queried Mr. Bach as to whether he had ever read the file and his answer was "no." The Petitioner admits that the Defendant Kimmel has requested the Petitioner to deliver to her the $44,000 proceeds that the Petitioner has requested be interpled because the Defendant Cavalry has demanded the same funds from the Petitioner. The Petitioner avers to the contrary that the Defendant Kimmel requested the Petitioner to obtain a forbearance agreement from Conseco that would be guaranteed by the settlement proceeds from her underinsured motorist settlement or arbitration award. The Petitioner complied with the Defendant Kimmel's instructions. With her express authority and instructions, the Petitioner negotiated said agreement with Conseco. The agreement the Defendant Kimmel accepted was that she would pay to Conseco the sum of $100 per month until the conclusions of the underinsured proceeding and that out of any settlement or award that she had authorized and directed the Petitioner to pay the balance of outstanding payments to Conseco. The Petitioner confirmed that agreement between the Defendant Kimmel and Conseco by letters dated January 29, 20023 and February 18, 20024 the 3 The Plaintiff marks as Exhibit "C", attaches hereto and incorporates herein by reference thereto a true and correct copy of his letter of January 29, 2002 to Conseco. 4 The Plaintiff marks as Exhibit "D", attaches hereto and incorporates herein by reference thereto a true and correct copy of his letter of February 18, 2002 to Conseco. Petitioner mailed the Defendant Kimmers first $100 monthly payment under the agreement to Conseco. The Defendant then made subsequent $100 monthly payments to Conseco through the Petitioner's office through Petitioner's final letter of October 21, 2002.5 The Petitioner marks as exhibit "E" the aforesaid letters, attaches those letters hereto and incorporates them herein by reference. Despite the aforesaid forbearance agreement, Conseco instituted a mortgage foreclosure proceeding against the Defendant Kimmel in Your Honorable Court captioned Conseco Finance Consumer Discount Company v. Clair F. Kimmel, Jr., Shirley Kimmel docketed at No. 02-3039 with certified copy of the Complaint certified on June 25, 2002. As the Defendant in the mortgage foreclosure action, the Defendant filed her Objections to Plaintiffs Complaint with New Matter with the Defendant Kimmel's verification,s As her New Matter defense the Defendant Kimmel pled the forbearance agreement as an accommodation or novation. Conseco filed a motion for summary judgment that the Defendant Kimmel defended on the basis of the forbearance agreement. In opposition to Conseco's motion for summary judgment, the Defendant Kimmel filed her Affidavit of Defendant. In that Affidavit, she, inter alia, swore that: 9. After the Defendant's husband died, she informed the Plaintiff through her counsel that he had died and that she would offer to instruct her attorney to deduct from any settlement or award after deduction of attorney's fees and cost of case to pay the arrearages directly to the Plaintiff, that she would give the Plaintiff first priority as her creditor to said funds and that she would make $100 per month payments. $ The Petitioner marks as Exhibit "E", and attaches said letters hereto and incorporates herein by reference thereto a true and correct copies of his letter of October 21, 2002. 6 The Petitioner marks as Exhibit" F ", attaches hereto and incorporates herein by reference thereto a true and correct copy of the aforesaid document 10. The Plaintiff agreed to the terms of her offer and she has paid the $100 per month since entry into the agreement and has instructed her counsel as aforesaid.7 The Petitioner also attached his Affidavit that went to the issue of accommodation, novation and forbearance.8 The Defendants' Brief in Opposition to the Plaintiff's Motion for Summary Judgment under Statement of Questions Involved stated that: DID THE PARTIES IN THIS ACTION ENTER INTO A NOVATION? YES. DID THE DEFENDANT COMPLY WITH THE TERMS OF THE NOVATION? YES. DID THE PLAINTIFF VIOLATE THE TERMS OF THE NOVATION BY COMMENCING THIS ACTION? YES. IS THE PLAINTIFF ESTOPPED FROM PURSUING MORTGAGE FORECLOSURE? YES DID THE PLAINTIFF ACCEPTANCE OF THE DEFENDANT'S OFFER CREATE AN ACCOMMODATION THAT PRECLUDES THE ENTRY OF SUMMARY JUDGMENT? YES.S $. The Petitioner marks as Exhibit" G ", attaches hereto and incorporates herein by reference thereto a true and correct copy of said affidavit. 9 The Defendant Kimmel also pled the Nanty-GIo rule with the following question: WHEN THERE ARE ISSUES OF FACT THAT REQUIRE ORAL TESTIMONY TO SUPPORT OR OPPOSE THE SUMMARY JUDGMENT MOTION IS SUMMARY JUDGMENT NOT PROPER? NO. Except for the Nanty-GIo rule, the Defendant Kimmel's entire defense rested on the aforesaid agreement that the Defendant Kimmel in this proceeding seeks to abrogate. The Petitioner's brief followed the outline of the Statement of Questions Involved; pages 5 -9.1° At oral argument, before the Honorable Edgar B. Bayley and the Honorable Kevin A. Hess, the Petitioner's argument rested solely on the agreement that the Defendant Kimmel now seeks to abrogate plus the Nanty-GIo rule. The Defendant Kimmel's defends her decision not to authorize disbursement of the funds on the basis that she has changed her mind. In Dahar v. Grzandzeil, 410 Pa. Super. 85, 599 A.2d 217 (1991) the court faced the same factual situation that is in this case. In Dahar, the case arose out of an automobile accident. The plaintiff suffered injury to his jaws and teeth. The plaintiff retained his attorney, the defendant Sanford A. Middleman, Esquire to prosecute his claim. The plaintiff could not pay for the dental services when the services were needed. In order to induce the dentist to perform the requested services, the attorney agreed to protect the unpaid dental bills out of any settlement. The plaintiff settled the automobile case and the insurer paid the settlement funds to the injured party and the money ended up in the attorney's account. The attorney failed to pay the balance of the dentist's bill and one of his defenses was: That the client, a third party, prevented the appellant-attorney from performing as promised by withdrawing the appellant-attorney's authority to pay the appellee-dentist's fee out of the settlement fund. lo The Petitioner marks as Exhibit" H ", attaches hereto and incorporates herein by reference thereto a true and correct copy of said document. 410 Pa. Super. at 92, 599 A.2d R 221. One of the attorney's position was that his client had withdrawn his authority to protect the dentist's bill and therefore he could not pay the dentist's bill because he no longer had the authority to pay the dentists bill. The court rejected that position holding that: The appellant-attorney's performance was not rendered impossible by the client's withdrawing the appellant-attorney's authority to pay the appellee dentist's fee out of the settlement fund. The record indicates that the client had expressly authorized the appellant-attorney to withhold from any settlement sufficient funds to pay unpaid portions of the appellee-dentist's fees. Later, when it came time to distribute the settlement fund, the client withdrew this authorization. Rule 1.15 of the Pennsylvania Rules of Professional Conduct, 42 Pa.C.S. (remainder of citation omitted in the court's opinion) ,addresses what an attorney should do when a dispute arises regarding distribution of funds in which a client or third person has an interest. An attorney may refuse to surrender the property to the client until the dispute is resolved. Id. Thus, contrary to the appellant-attorney's argument that he could not have protected the appellee-dentist's fee because ethics would not permit him to disperse the client's money without authorization, the ethical guidelines expressly permit the appellant- attorney to retain sufficient funds to protect the appellee-dentist's fee before distributing the settlement proceeds to the client. 410 Pa. Super. at 94, 599 A.2d at 221. The law is settled that if an attorney agrees to protect the interest of a creditor, he may be personally liable if he does not protect the interest of the creditor out of funds that have been designated as the source for payment of the creditors bills. Consequently, the Petitioner had the express authority of his client to protect Conseco's mortgage out of any settlement proceeds. The exchange for that agreement was that the Defendant Kimmel would pay $100 per month until settlement and Conseco would not foreclose its mortgage. 9 The Defendant Kimmel paid the $100 per month from the date of the agreement until the end of October of 2002. After her October 2002 payment, the Defendant Kimmel made no further monthly payments of $100. When the settlement funds came under the control of the Petitioner, he paid all outstanding expenses except for the $44,000 mortgage balance that Conseco's successor, Cavalry Investments claimed was due and owing to it. The Petitioner promptly paid the remainder of the settlement funds to the Defendant Kimmel. Contemporaneous with the disbursement of the balance of the settlement funds to the Defendant Kimmel, the Petitioner filed the Petition for Interpleader and Your Honorable Court issued its Order. WHEREFORE, the Petitioner prays that Your Honorable Court will issue an order directing the Petitioner to pay into the Prothonotary the $44,000 in contention between the Defendant Kimmel and the Defendant Cavalry Investments formerly Conseco and award counsel fees to the Petitioner and against the Defendant Kimmers counsel James Bach, Esquire. Respectfully submitted, KNAUER & ASSOCIATES, L.S.C. David W. Knauer, Esquire ^ttorney for Plaintiff Attorney I.D. No. 21582 411-A East Main Street Mechanicsburg, PA 17055 Date: May 5, 2003 (717) 795-7790 ]0 JAMES M. BACH Attorney At Law 352 S. Sporting Hill Rd., Mechanicsburg, PA 17050, Tel: (717) 737-2033 April 15, 2OO3 Mary Tylenda Blue Chip Credit Union 5050 Derry Street Harrisburg, PA 17111 Re: Shirley A. Kimmel 334 Charles Road Mechanicsburg, PA 17055 This will serve as confirmation of our telephone conversation regarding my client, Mrs. Kimmel. I indicated to you that Mrs. Kimmel would not be making any further payments. I also advised that she would surrender the real estate at the appropriate time. You indicated that you would refer the matter to your attorney, Robert Kodak. By way of a copy of a letter to Conseco Finance, they are being informed of this decision. I am requesting that all inquiries be referred to my office. Next, I ask that all collection efforts cease and terminate. Kindly proceed through your various legal councils to commence proceedings to initiate complaint and mortgage foreclosure. It is my understanding that Blue Chip has priority standing as the first mortgage holder, followed by Conseco with the second mortgage, and Conseco with a third mortgage. Mary Tylenda April 15, 2003 Page 2 In the interim, my client has agreed to voluntarily list the real estate for sale. In the event that the real estate is sold for market value, the appropriate real estate agency will be in touch with Conseco regarding a potential "short sale" regarding the third mortgage. This should serve as a memorandum of record to all parties in interest. Respectfully, M. BACH -at-La~ JMB/thl Cc: Robert Kodak Conseco David W. Knauer ShMey A. Kimmel Knauer ~. Associates, LSC Attorneys-at-Law 411A. East lVlaln Street, Mechanicsburg, PA 17055 Telephone: (717) 795-7790 Fax: (717) 795-7793 Email: knauer@earl¥.com David W. Knauer March 14, 2003 Mr. Todd Davis, Manager Home Improvement Conseco Finance Building 1 (HID)7360 Kyrene Road Tempe, Arizona 85283 RE: Mortgagors: Mr. Clair Kimmel and Shirley Kimmel Account No. 15882181 Dear Mr. Davis: Please reference my letter of January 18, 2002 to you confirming our agreement that my client would be paying $100 per month until settlement of a pending insurance claim. On March 13, 2003, we received the settlement check. Please provide me with the amount to bring the mortgage current and also the pay off figure as of March 17, 2003 and a per diem after that date. Thank you for your attention to this inquiry. Very truly yours, David W. Knauer DWK: bm CC: Shirley Kimmel Company~immel\03-14-03\davis.ltr Knauer ~ Associates, LSC Attorneys-at-Law 41lA East Main Street, Mechanicsburg, PA 17055 Telephone: (717) 795-7790 Fax: (717) 795-7793 Email: knauer@earl¥.com David W. Knauer January 29, 2002 Ms. Jennifer Armstrong & Mr. Todd Davis CONSEICO 7360 South Kyrene Road Tempe, Arizona 85283 Shirley Kimmel Account No. 15882181 Dear Ms. Armstrong and Mr. Davis: Please be advised that I represent Mrs. Shirley Kimmel. Her husband and co- debtor died recemly. Mrs. Kimmel is on total disability. She is unemployable. I also represent her in an underinsured proceeding that should be arbitrated in March or April of this year. Although there are no guarantees in litigation, I anticipate that the arbitrators should render an award in excess of your delinquent payments. In the event that the arbitrators' award is in excess of your outstanding mortgage payments, I will protect your lien stares. The only items ahead 0fyour mortgages are costs of suit and our office's attorney's fees. Mrs. Kimmel requests that you refinance the mortgage to a lower rate. She also requests that you forebear any foreclosure actions until after her arbitration. This also confirms our telephone conferences wherein you agreed to allow her to pay $100 monthly until her arbitration is concluded. I have requested Mrs. Kimmel to bring us the $100 so that our office can forward it to you. I would anticipate that she should have the check to us in a few days. Thank you for your consideration in this matter. DWK/bm CompanyhV, immel\01-29-02\conseico.ltr Very truly yours, · l~v~:.--Knauet Knauer & Associates, LSC Attorneys-at-Law 411A East Main Street, Mechanicsburg, PA 17055 Telephone: (717) 795-7790 Fax: (717) 795-7793 Email: knauer@early.com David W. Knauer February 1B, 2002 Ms. Jennifer Armstrong CONSECO 7360 South Kyrene Road Tempe, Arizona 85283 Shirley Kimmel Account No. 15882181 Dear Ms. Armstrong and Mr. Davis: Please find enclosed a check in the amount of $100.00. Very truly yours, David W. Knauer DWK/bm Enclosure CC: Shirley Kimmel Company\kimmel\02-18-02\conseco.ltr Knauer & Associates, LSC Attorneys-at-Law 411A East Main Street, Mechanicsburg, PA 17055 Telephone: (717) 795-7790 Fax: (717) 795-7793 Email: knauer@earl¥.com David W. Knauer April 23, 2002 Ms. Jennifer Armstrong CONSECO 7360 South Kyrene Road Tempe, .Arizona 85283 Shirley Kimmel Account No. 15882181 Dear Ms. Armstrong: This letter is to reinforce my conversation with you as of the above date. All contact with my client Shirley Kimmel is to cease, and all correspondence and calls are to be directed to my attention. Please find enclosed a check in the amount of $100.00. Very truly yours, -.,7"? David W. Knauer DWK/bm Enclosure CC: Shirley Kimmel CompanyXkimmel\04-22-02\conseco.ltr Knauer ~sc Assodates, LSC Attorneys-at-Law 411A East 1Vialn Street, Mechanicsburg, PA 17055 Telephone: (717) 795-7790 Fax: (717) 795-7793 Email: knauer@earl¥.com David W. Knauer July 1, 2002 Ms. Jennifer Armstrong CONSECO 7360 South Kyrene Road Tempe, Arizona 85283 Shirley Kimmel Account No. 15882181 Dear Ms. Armstrong: Please f'md enclosed a check in the amount of $100.00. Thank you. Ve~ truly yours, David W. Knauer DWK/bm Enclosure CC: Shirley Kimmel CompanyLkimmel\07-01-02\conseco.ltr Knauer & Associates, LSC Attornevs~toLaw 411A East ]V[aln Street~ Mechanicsburg, PA 17055 Telephone: (717) 795-7790 Fax: (717) 795-7793 Email: knauer@earlv.com David W. Knauer July 30, 2002 Ms. Jennifer Armstrong CONSECO 7360 South Kyrene Road Tempe, Arizona 85283 Shirley Kimmel Account No. 15882181 Dear Ms. Armstrong: Please find enclosed a check in the amount of $100.00. Thank you. Very truly yours, ~ . ~ / David W. Knauer DWK/bm Enclosure CC: Shirley Kimmel CompanyLkimmel\07-30-02\conseco.ltr Knauer & Associates, LSC Attorneys-at-Law 411A East Main Street, Mechanicsburg, PA 17055 Telephone: (717) 795-7790 Fax: (717) 795-7793 Email: knauer@earlv.com David W. Knauer August 30, 2002 Ms. Jennifer Armstrong CONSECO 7360 South Kyrene Road Tempe, Arizona 85283 Shirley Kimmel Account No. 15882181 Dear Ms. Armstrong: Please f'md enclosed a check in the amount of $100.00. Thank you. Very truly yours, David W. Knauer DWK/bm Enclosure CC: Shirley Kimmel Company~kimmel\08-30-02\conseco.ltr Y~auer & Associates, LSC Attorneys-at-Law 411A East l~[aln Street~ Mechanicsburg, PA 17055 Telephone: (717) 795-7790 Fax: (717) 795-7793 Emaih knauer@early.com David W. Knauer September 27, 2002 Ms. Jennifer Armstrong CONSECO 7360 South Kyrene Road Tempe, Arizona 85283 Shirley Kimmel Account No. 15882181 Dear Ms. Armstrong: Please find enclosed a check in the amount of $100.00. Thank you. Very truly yours, David W. Knauer DWK/bm Enclosure CC: Shirley Kimmel Company~kimmel\09-27-02\conseco.ltr Knauer & Associates, LSC Attorneys-at-Law 41lA East Main Street, Mechanicsburg, PA 17055 Telephone: (717) 795-7790 Fax: (717) 795-7793 Emaih knauer@earl¥.com David W. Knauer October 21, 2002 Ms. Jennifer Armstrong CONSECO 7360 South Kyrene Road Tempe, Arizona 85283 RE: Shirley Kimmel Account No. 15882181 Dear Ms. Armstrong: Please find enclosed a check in the amount of $100.00. Thank you. Very truly yours, David W. Knauer DWK/bm Enclosure CC: Shirley Kimmel CompanyXkimmel\l 0-21-02\conseco.ltr IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CONSECO Finance Consumer Discount Company Plaintiff Vs. Clair F. Kimmel, Jr., Shirley A. Kimmel Defendants COURT COMMON PLEAS CUMBERLAND COUNTY No. 02-3039 Civil Term OBJECTIONS TO PLAINTIFFS COMPLAINT WITH NEW MATTER 1 .- 4. Denied as alleged. The Plaintiff avers to the contrary that Clair F. Kimmel, Jr. is deceased. The Defendant Shirley Kimmel through her undersigned counsel on January 18, 2002 informed by telephone and confirmed by letter of the undersigned of the same date Mr. Todd Davis, Manager, Home Improvement Conseco Finance, Building 1 (HID), 7360 Kyrene Road, Tempe, Arizona that Mr. Kimmel had died approximately. The Defendant marks as Exhibit "A", attaches hereto and incorporates herein by reference thereto a true and correct copy of the aforesaid letter to Mr. Davis. The Defendant Shirley A. Kimmel admits the remaining allegations of the aforesaid paragraphs 1. - 4. 5. Denied as alleged. The Defendant Shirley A. Kimmel avers to the contrary that the aforesaid mortgage is not in default because she had negotiated an accommodation of current payments and is current with the payments under the aforesaid accommodation with the Defendant as more fully set forth herein by reference thereto under New Matter. WHEREFORE, the Defendant demands judgment in her favor and against the Defendant on its Complaint. NEW MATTER 6. The Defendant incorporates herein by reference thereto paragraphs 1 through 5 of inclusive of her Answer as if more fully set forth herein by reference thereto. 7. The Defendant's counsel in his aforesaid letter of January 18, 2002 to Mr. Davis also informed him the Defendant was on total disability, that he was representing her in an Underinsured Arbitration Proceeding and that he felt that the arbitrators' award would exceed the approximate $3,000 outstanding balance to bring her payments current. 8. The Defendant's undersigned counsel by telephone conference of January 29, 2002 and confirmed with Mr. Davis and confirmed by letter of the same date reached an accommodation that the Defendant would pay $100 per month until her UIM arbitration hearing, that the Defendant's counsel would protect the Plaintiff's interest and pay the Plaintiff its balance subject only to counsel fees and costs. The Defendant marks as Exhibit "B', attaches hereto and incorporates herein by reference thereto the aforesaid letter of January 29, 2002. 9. By letter dated February 18, 2002, the Defendant's aforesaid counsel sent the Defendant's $100 check in a letter addressed to both Mr. Davis and Ms. Armstrong. The Defendant marks as Exhibit "C', attaches hereto and incorporates herein by reference thereto a true and correct copy of said letter. 10. Although the Plaintiff knew that the Defendant had the undersigned counsel representing her both prior to and subsequent to January 18, 2002, that said counsel had protested the Plaintiff's direct contact with the Defendant, and that he had directed the Plaintiff to make all contacts with the Defendant through the undersigned, its agents, servants, workmen and employees disregarded the aforesaid objections and contacted the Defendant directly over the objection of the Defendant and her undersigned counsel. 11. By letter dated April 23, 2002 to Ms. Armstrong, the Defendant's counsel enclosed the Defendant $100 check and informed Ms. Armstrong that: This letter is to reinforce my conversation with you as of the above date. All contact with my client Shirley Kimmel is to cease, and all correspondence and calls are to be directed to my attention. The Defendant marks as Exhibit "D", attaches hereto and incorporates herein by reference thereto a true and correct copy of said letter. 12. By letter dated July 1, 2002, the Defendant's undersigned counsel sent another payment of $100 addressed to Ms. Armstrong. The Plaintiff marks as Exhibit "E", attaches hereto and incorporates herein by reference thereto a true and correct copy of said letter. 13. When an attorney represents an individual on a matter, an attorney for the adverse party must deal with the individual's counsel and is prohibited form contacting the individual directly. 14. In this action the Plaintiffs counsel directly contacted the Defendant without the knowledge or permission of the Defendant's undersigned counsel. 15. The Plaintiff reached an accord with the Defendant that in exchange for the undersigned's agreement to protect the Plaintiff out of any Defendant's recovery in her UIM claim and in exchange for her direction to authorize her undersigned counsel to deduct from any arbitration award the outstanding amount of the balance the Defendant owed to the Plaintiff. 16. The Plaintiff entered in to a novation when the Defendant agreed to pay $100 monthly towards her outstanding balance and for the undersigned's agreement to protect the Plaintiff out of any Defendant's recovery in her UIM claim and in exchange for her direction to authorize her undersigned counsel to deduct from any arbitration award the outstanding amount of the balance the Defendant owed to the Plaintiff. 17. The Plaintiff is estopped from foreclosure because it agreed to refrain for taking any adverse action against the Defendant when the Defendant agreed to pay $100 monthly towards her outstanding balance and for the direction to her undersigned's counsel's agreement to protect the Plaintiff out of any Defendant's recovery in her UIM claim and in exchange for her direction to authorize her undersigned counsel to deduct from any arbitration award the outstanding amount of the balance the Defendant owed to the Plaintiff. ! 8. The Plaintiff is not justified for foreclosure because it agreed to refrain for taking any adverse action against the Defendant when the Defendant agreed to pay $100 monthly towards her outstanding balance and for the direction to her undersigned's counsel's agreement to protect the Plaintiff out of any Defendant's recovery in her UIM claim and in exchange for her direction to authorize her undersigned counsel to deduct from any arbitration award the outstanding amount of the balance the Defendant owed to the Plaintiff. 19. The Plaintiff is barred from foreclosure because the Defendant is awaiting the UIM arbitration and has been making payment in accordance with the aforesaid agreement confirmed in writing as more fully set forth in Exhibit "B" attached hereto. WHEREFORE, the Defendant demands that judgment be entered in her favor and against the Plaintiff on the Plaintiffs Mortgage Foreclosure Complaint. Respectfully submitted, KNAUER & ASSOCIATES, L.S.C. Date: May 2, 2003 David W. Knauer, Esquire Attorney for Plaintiff Attorney I.D. No. 21582 411-A East Main Street Mechanicsburg, PA 17055 (717) 795-7790 V E.R'! F I CATI O N Subject to the penalties of 18 Pa. C.S.A. 4904 relating to uns',vorn falsification to authorities, v,,e hereby certify" ~' , . ~n,.-, the facts in the foregoing ,.oleading are ,'rue and correct lo the best cf our information and belief. V E.R'i F I CATI 0 N Subject to the penalties of 18 Pa. C.S.A. 4904 re!ating to unsworn f~-Isific.ation to authorities, v,,e hereby certify" -' ~n,--~ the f~-cts in the foregoing pleading are true and correct to the best cf our information 8nd belief. OCT 1 6 ~002 '~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CONSECO Finance Consumer Discount Company Plaintiff Vs. Clair F. Kimmel, Jr., Shirley A. Kimmel Defendants COURT COMMON PLEAS CUMBERLAND COUNTY No. 02-3039 Civil Term AFFIDAVIT OF DEFENDANT 1. The Affiant is the Defendant. 2. The Affiant and her deceased husband mortgaged the property in this mortgage foreclosure action to the Plaintiff. 3. When the Affiant and her deceased husband entered into the mortgage agreement, her husband was totally disabled and his only source of income was Social Security disability payments. 4. When the Affiant and her deceased husband entered into the mortgage agreement, she was gainfully employed. 5. After the Affiant and her deceased husband entered into the mortgage agreement, she was involved in a motor vehicle collision that permanently disabled her. 6. After the Affiant and her deceased husband entered into the mortgage agreement and after becoming disabled as a result of the aforesaid collision, her sole source of income became Social Security disability payments. 7. The Affiant obtained a settlement of her claim against the tortfeasor that was insufficient to compensate her for the injuries she suffered and she has pending an Underinsured Motorist arbitration proceeding. 8. The Affiant has pending an Underinsured Motorist arbitration proceeding that the parties anticipate being held in November or December of 2002. 9. After the Defendant's husband died, she informed the Plaintiff through her counsel that he had died and that she would offer to instruct her attorney to deduct from any settlement or award after deduction of attorney's fees and cost of case to pay the arrearages directly to the Plaintiff, that she would give the Plaintiff first pdority as her creditor to' said funds and that she would make $100 per month payments. 10. The Plaintiff agreed to the terms of her offer and she has paid the $100 per month since entry into the agreement and has instructed her counsel as aforesaid. 11. The Plaintiff commenced collection efforts by placing numerous telephone calls to the Defendant. 12. Prior to April 23, 2002 and subsequent to April 23, 2002, the Plaintiff's employees made numerous telephone calls to the Defendant demanding money. 13. After April 23, 2002, the Plaintiff's counsel in the above proceeding directly contacted the Defendant numerous times to demand money. 14. The Defendant prior to and after the Defendant accepted the January 18, 2002 offer, the Defendant has complied with the conditions of that agreement. The affiant sayeth not further. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CONSECO Finance Consumer Discount Company Plaintiff Vs. Clair F. Kimmel, Jr., Shirley A. Kimmel Defendants COURT COMMON PLEAS CUMBERLAND COUNTY No. 02-3039 Civil Term DEFENDANTS' BRIEF IN OPPOSITION TO THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PROCEDURAL HISTORY The Plaintiff commenced this foreclosure action by Complaint. The Defendant filed her Answer that placed at issue the allegations of the Complaint and pled New Matter. In addition to raising factual issues the Defendant raised three affirmative defenses; novation, estoppel, and accommodation. The Plaintiff filed its reply placing the averments of the Defendant's New Matter at issue. Without any prior notice to the Defendant, the Plaintiff filed its Motion for Summary Judgment. The Defendant has filed the Defendant's Reply to the Plaintiff's Motion for Summary Judgment Pursuant to Pa.R.C.P. No. 1035.2. The Defendant and her counsel have filed affidavits in support of the Defendant's aforesaid pleadings. The Defendant intends to file her requests for production of documents, interrogatories, and deposition notices. At this juncture, the Defendant has placed the Plaintiff's allegations at issue and the Defendant has placed the Plaintiff's New Matter averments and affirmative defenses at issue. The parties' pleadings will require oral testimony for determination of the issues involved in this action. FACTUAL HISTORY The Defendant and her deceased husband entered into mortgage agreements with the Plaintiff. Prior to the entry into the aforesaid mortgage agreements, the Defendant Clair F. Kimmel, Jr., was totally disabled and received Social Security benefits as his only source of income. At that time, the Defendant Shirley A. Kimmel was working. The Defendants' position changed drastically after an automobile accident when the Defendant Shirley Kimmel also became totally disabled. Her sole source of income became Social Security disability benefits. The Defendant Shirley A. Kimmel had a settlement against the tortfeasor that had caused the collision and injuries she suffered as a result of that collision. Prior to any missed mortgage payments, the Defendant Shirley A. Kimmel recovered the Defendant's Iow policy limits less attorney's fees and costs of suit. (Defendant's Affidavit paragraph 7) The Defendant Shirley A. Kimmel made an underinsured motorist claim and the UIM arbitration is scheduled for October 29, 2002, although that may be continued. (Knauer Affidavit paragraph 14). The Plaintiff commenced collection efforts with numerous and frequent telephone calls to the Defendants. (Defendant Affidavit paragraph 11). During the time the Plaintiff was directly contacting the Defendant, the undersigned represented the Defendant on the pending UIM claim and on this case. By letter dated January 18, 2002, the Defendant, through her undersigned counsel, notified the Plaintiff that the Defendant Clair F. Kimmel had died.~ Defendant's counsel by letter dated January 29, 2002 notified the Plaintiff in writing that he represented the Defendants and confirmed the novation.2 Ignoring the undersigned's representation of the Defendant, the Plaintiff continued to contact the Defendant directly. The Defendant's counsel had telephone conferences with the Plaintiffs employees and instructed them to cease contacting the Defendant directly and to make all inquires through him. (Knauer Affidavit 15). The Plaintiff ignored that request and continued to make telephone calls to the Defendant's home. Defendant's counsel by letter dated April 23, 2002 notified the Plaintiff in writing that it should stop contacting the Defendant directly. That letter stated that: ] The Defendant's counsel's telephone call and confirming letter was sent to Mr. Todd Davis, Manager, Home Improvement Conseco Finance, Building I (HID), 7360 Kyrene Road, Tempe, Arizona that Mr. Kimmel had died approximately two weeks prior to the date of the letter. The Defendant marks as Exhibit "A", attaches hereto and incorporates herein by reference thereto a true and correct copy of said letter. 2 The Defendant marks as Exhibit "B", attaches hereto and incorporates herein by reference thereto a true and correct copy of the Defendant's counsel's letter of January 29, 2002 This letter is to reinforce my conversation with you as of the above date. All contact with my client Shirley Kimmel is to cease, and all correspondence and calls are to be directed to my attention.3 The Plaintiff ignored the Defendant's counsel's request and continued to contact the Defendant directly. (Defendant Affidavit paragraph 12). The Plaintiff's counsel in this action directly contacted the Defendant. (Defendant's Affidavit paragraph 13). STATEMENT OF QUESTIONS INVOLVED DID THE PARTIES IN THIS ACTION ENTER INTO A NOVATION? YES. DID THE DEFENDANT COMPLY WITH THE TERMS OF THE NOVATION? YES. DID THE PLAINTIFF VIOLATE THE TERMS OF THE NOVATION BY COMMENCING THIS ACTION? YES. IS THE PLAINTIFF ESTOPPED FROM PURSUING MORTGAGE FORECLOSURE? YES DID THE PLAINTIFF ACCEPTANCE OF THE DEFENDANT'S OFFER CREATE AN ACCOMMODATION THAT PRECLUDES THE ENTRY OF SUMMARY JUDGMENT? YES. 3 The Defendant marks as Exhibit "C", attaches hereto and incorporates herein by reference thereto a true and correct copy of the Defendant's counsel's letter of April 23, 2002. 4 WHEN THERE ARE ISSUES OF FACT THAT REQUIRE ORAL TESTIMONY TO SUPPORT OR OPPOSE THE SUMMARY JUDGMENT MOTION IS SUMMARY JUDGMENT NOT PROPER? NO. ARGUMENT THE PARTIES IN THIS ACTION ENTERED INTO A NOVATION. THE DEFENDANT DID COMPLY WITH THE TERMS OF THE NOVATION. THE PLAINTIFF VIOLATED THE TERMS OF THE NOVATION BY COMMENCING THIS ACTION. In Lon.cl v. Yin~lin.~, 700 A.2d 508, 511 (Super. 1997) the Court set forth the summary judgment standard holding that: We note that our standard for reviewing a grant of summary judgment is well settled. Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue or fact exists and that the moving party is entitled to judgment as a matter of law .... (citations omitted) The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party .... (captions omitted) .... Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists .... In Wright v. Hanna, 210 Pa. 349, 353, 59 A. 1097, 1098 (1904) the Court set forth the elements of novation: The essentials of novation are the displacement and extinction of the prior contract, the substitution of a new contract, a sufficient consideration therefore, and the consent of the parties thereto. Prior to January 18, 2002, the Defendant had suffered serious injuries that arose out of a motor vehicle accident. As a result of that accident, the Defendant became totally disabled. She lost her job and her only income has been Social Security benefits. The Plaintiff recovered the tortfeasor's Iow policy limits. The arbitration is scheduled for October 29, 2002. (Knauer Affidavit paragraph 14). The application of the Wright factors establishes that a novation took place. Prior to the novation, the Defendant had the creditor/debtor relationship with her home as the collateral. The Plaintiff had the right to institute mortgage foreclosure proceedings as soon as the Defendant failed to make any mortgage payments and the right to receive attorney's fees for prosecuting the foreclosure action. Prior to the novation, the Defendant had other creditors. (Defendant's Affidavit paragraph 14). Except as to the security of the mortgaged property, the Plaintiff had no priority in any deficiency proceeding to any loss that might result from its taking of the property in question and selling it. If the Plaintiff was successful in its mortgage foreclosure action it would become mortgagee in possession. Financial organizations are loath to become the mortgagees in possession because of the costs involved and the management time its employees must expend to dispose of the property so that it can recoup funds from the property. The Defendant's offer to give first priority to the Plaintiff, to instruct her counsel to pay the outstanding arrearages from any funds received except as to attorney's fees and costs of suit and to agree to make $100.00 (One-hundred dollars) monthly payments until the conclusion of the UIM arbitration was valuable consideration to the Plaintiff. The Plaintiff accepted that consideration. Both parties accepted the agreement and thereby created a novation. In good faith, the Defendant has complied with the terms of that agreement and made her monthly payments.4 The Defendant has been sending her monthly $100.00 checks since the agreement. However, the Plaintiff has been holding but not cashing the checks she sent for both August and September 2002. ARGUMENT THE PLAINTIFF IS ESTOPPED FROM PURSUING MORTGAGE FORECLOSURE. In Shoemaker v. Commonwealth Bank, 700 A.2d 1003 (Pa. Super. 1997), the court reversed the entry of summary judgment. The court faced the situation where the bank's mortgage gave the bank the authority to purchase insurance on the mortgaged property in the event that the mortgagor did not purchase insurance or allowed the insurance to lapse. If the bank did obtain insurance, then the premium would be added to the mortgagors' indebtedness. The mortgagors allowed the insurance policy to lapse, they contended that the bank informed them that it would obtain the insurance and add the premium to the indebtedness, the bank did not obtain insurance and a fire occurred that 4 The Defendant has marked as Exhibit "D', attaches hereto and incorporates herein by reference thereto the checks or bank statements evidencing her compliance with the terms of the novation. 7 destroyed the property. The mortgagors then filed suit against the bank for allowing the insurance policy to lapse.5 With respect to the promissory estoppel claim, the court set forth the elements of that count holding that: The doctrine of promissory estoppels allows a party, under certain circumstances, to enforce a promise even though that promise is not supported by consideration .... (citations omitted except for) Restatement (Second) of contracts section 90. To establish a promissory estoppel cause of action, a party must prove that: (1) the promisor made a promise that he should have reasonably expected would induce action or forbearance on the part of the promise; (2) the promisee actually took action or refrained from taking action in reliance on the promise; and (3) injustice can be avoided only by enforcing the promise. 700 A.2d at 1006-1007. The Plaintiffs agreement to forbear commencement of mortgage foreclosure on the condition that the Defendant agree to give it priority on any funds she might receive from her UIM arbitration subject only to counsel fees and costs of litigation, instruct her counsel to give priority as aforesaid to the Plaintiff and to pay the Plaintiff $100.00 (One-hundred Dollars) per month constituted the promise. Therefore, the Defendant meets the first part of the promissory estoppel requirement. The Defendant took action on the promise when she instructed her counsel to give priority on the UIM recovery to the Plaintiff and paid the Plaintiff the agreed upon monthly payments of $100.00 (One-Hundred Dollars). The Defendant's action meets the second element of the promissory estoppel. $ The appellate court rejected the mortgagors' fraud counts in fraud and breach of contract and its decision permitted only the promissory estoppels count to proceed. Injustice can only be avoided by giving effect to the forbearance agreement between the parties. The Defendant's arbitration is scheduled for October 29, 2002, although it may be continued. The Defendant anticipates that her recovery in the UIM proceeding will generate sufficient dollars to bring her mortgage current. In the UIM proceeding, the Defendant's initial settlement offer was $50,000.00 (fifty-thousand dollars) and settlement negotiations are ongoing. The Plaintiffs violation of its agreement is senseless litigation. The Plaintiff brings a suit when an agreement to protect its interests is in place and engenders attorney's fees that it demands from the Defendant. Further, the Plaintiffs action in commencing suit only forces the Defendant to assume responsibility for her counsel's fees to defend the warrantless action. Justice can only be served by denying the Plaintiff's motion for summary judgment. ARGUMENT THE PLAINTIFF'S ACCEPTANCE OF THE DEFENDANT'S OFFER CREATED AN ACCOMMODATION THAT PRECLUDES THE ENTRY OF SUMMARY JUDGMENT. The Defendant incorporates herein by reference thereto the Defendant's Arguments on novation and estoppel. When the Plaintiff accepted the Defendant's offer and received the benefits of the offer, it made an accommodation with the Defendant. Consequently, the doctrine of accommodation precludes entry of summary judgment. ARGUMENT WHEN THERE ARE ISSUES OF FACT THAT REQUIRE ORAL TESTIMONY TO SUPPORT OR OPPOSE A SUMMARY JUDGMENT MOTION, SUMMARY JUDGMENT IS NOT PROPER. The Defendant has placed the allegations of the Complaint at issue. Likewise, the Plaintiff has placed the averments of the Defendant's New Matter at issue. Oral testimony will be required on both the Complaint and New Matter. No depositions have been taken. The court in Askew v. Zeller, 361 Pa. Super. 35, 43, 521 A.2d 459, 463 (1987) set forth the long settled oral testimony rule in summary judgment proceedings citing to Nanty-GIo Borough v. American Surety Co.,, 236 A. 523 (1932) holding that: The Nanty-GIo rule maintains that one is not entitled to a directed verdict if one's position depends on the non-contradicted oral testimony of one's own witnesses. The other party is entitled to have a jury evaluate the creditability of the witnesses, even if their testimony is not contradicted, and the jury may choose not to believe their testimony. When applied to a motion for summary judgment, the Nanty-GIo rule prevents a court from granting the motion solely on the basis of oral testimony or undocumented affidavits of the moving party's witnesses .... In Shoemaker, the issue was who was responsible for obtaining insurance on the mortgaged premises and what conversations took place between the Plaintiffs and the Defendant's agents. In this case, the issues are what agreements had been reached between the Plaintiff and the Defendant and what was the legal effect of those conversations and agreements. In Shoemaker, the court held that the avoidance of injustice standard required oral testimony and therefore created a genuine material fact that barred summary judgment; 700 A.2d at 1007. Procedurally, the Plaintiffs motion for summary judgment should be denied because there are issues of material fact that depend on the creditability of witnesses and that testimony is required to determine if an injustice can only be avoided by taking the case to trial. Date: May 2, 2003 Respectfully submitted, KNAUER & ASSOCIATES, L.S.C. David VV. Knauer, Esquire Attorney for Plaintiff Attorney I.D. No. 21582 411-A East Main Street Mechanicsburg, PA 17055 (717) 795-7790 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KNAUER & ASSOCIATES, L.S.C. Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY Vs. No. 03-1563 Shirley Kimmel, and Cavalry Investments: Formerly CONSECO LAW IN EQUITY CERTIFICATE OF SERVICE I, David W. Knauer, hereby certify that I did this 5th day of May, 2003, serve a true and correct copy of the Petitioners Reply to New Matter of the Defendant on all counsel of record by United States mail, first class, prepaid addressed as follows: James M. Bach, Esquire 352 S Sptg. Hill Road Mechanicsburg, PA 17055 David WT. Knau&~, Esquire Attorney for Plaintiff Attorney I.D. No. 21582 411-A East Main Street Mechanicsburg, PA 17055 (717) 795-7790 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KNAUER & ASSOCIATES, L.S.C. Plaintiff Vs. Shirley Kimmel, and Cavalry Investments: Formerly CONSECO COURT Of COMMON PLEAS CUMBERLAND COUNTY No. 03-1563 LAW IN EQUITY MOTION TO MAKE RULE ABSOLUTE AS TO THE DEFENDANT CAVALRY INVESTMENTS FORMERLY CONSECO AND MOTION FOR ARGUMENT 1. On April 4, 2003, the Movant filed Petition for Interpleader because both Defendants claimed the same fund. 2. On April 14, 2003, Your Honorable Court issued a rule to show cause on both Defendants to show cause why the Petition for Interpleader should not be granted. 3. The Defendant Shirley Kimmel filed her response with new matter. 4. On May 5, 2003, the Plaintiff filed his Petitioner's Reply to the New Matter of the Defendant Shirley Kimmel. 5. The Defendant Cavalry Investments formerly Conseco has not filed a reply to the rule to show cause. WHEREFORE, the Plaintiff prays that Your Honorable Court will make the rule to show cause absolute as to the Defendant Cavalry Investments formerly Conseco and grant the Petition for Interpleader as to that Defendant only. MOTION FOR ARGUMENT 6. If Your Honorable Court grants the Plaintiff's Motion to Make Rule Absolute as to the Defendant Cavalry Investments formerly Conse¢o, then as to that Defendant the Plaintiff's Petition for Interpleader would be granted. 7. The Defendant Shirley Kimmel has filed her response to the Plaintiff's motion with new matter and the Plaintiff has filed Plaintiff's Reply to the New Matter of the Defendant Shirley Kimmel thereby making the Petition for Interpleader ready for argument. WHEREFORE, the Plaintiff prays that Your Honorable Court will set the above matter down for argument. Date: May 16, 2003 Respectfully submitted, KNAUER & ASSOCIATES, L.$.¢. David W.X~n_a~u. ~_'r, Esquire Attorney for Plaintiff Attorney I.D. No. 21582 411-A East Main Street Mechanicsburg, PA 17055 (717) 795-7790 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KNAUER & ASSOCIATES, L.S.C. Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY Vs. No. 03-1563 Shirley Kimmel, and Cavalry Investments: Formerly CONSECO LAW IN EQUITY CERTIFICATE OF SERVICE I, David W. Knauer, hereby certify that I did this 16th day of May, 2003, serve a true and correct copy of the MOTION TO MAKE RULE ABSOLUTE AS TO THE DEFENDANT CAVALRY INVESTMENTS FORMERLY CONSECO AND MOTION FOR ARGUMENT on all counsel of record by United States mail, first class, prepaid addressed as follows: James M. Bach, Esquire 352 S Sptg. Hill Road Mechanicsburg, PA 17055 Attorney for Plaintiff Attorney I.D. No. 21582 411-A East Main Street Mechanicsburg, PA 17055 (717) 795-7790 KNAUER & ASSOCIATES, L.S.C., PLAINTIFF · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY KIMMEL AND CAVALRY INVESTMENTS formerly CONSECO, DEFENDANTS : 03-1563 CIVIL TERM ORDER OF COURT AND NOW, this ~ ~-- day of June, 2003, the Rule entered on April 14, 2003, IS MADE ABSOLUTE. The petition of Knauer & Associates, L.S.C. for interpleader, IS GRANTED. Edgar B. Bayley, J. v/David W. Knauer, Esquire For Plaintiff v"~'ames M. Bach, Esquire For Shirley Kimmel v'~avalry Investments P.O. Box 75428 St. Paul, MN 55175 :sal Knauer & Associates, L.S.C. : Plaintiff : Vs. Shirley Kimmel, and Cavalry Investments: Formerly CONSECO : COURT OF COMMON PLEAS CUMBERLAND COUNTY : CIVIL TERM NO. 03-1563 LAW IN EQUITY NOTTCE TO DEFEND YOU HAVE BEEN SU'ED 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 Notice is served, by entering a written appearance personally or by an 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 ~ther claim or relief requested by the Defendant. You may lose money or property or other rights important to you. YOU SHOULD TAF~E THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT ~AVE A LAWYER OR CASrNOT 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 Libe~ Avenue Carlisle, PA 17013-3308 717-249-3166 AVISO Le hah demandado a usted en la corte. Si usted quiere defenderae de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sun defensas o sun objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medias y puede entrar una- orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Unted puede perder dinero o sun propiedades o otros derechos importantes para usted. LLEVE ESTA DEMA/FDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAN TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINO CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PU~DE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3308 717-249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Knauer & Associates, L.S.C. Plaintiff Vs. Shirley Kimmei, and Cavalry Investments: Formerly CONSECO : COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL TERM NO. 03-1563 LAW IN EQUITY STATEMENT OF CLAIM OF SHIRI,F,y KIMMEI, The Claimant, Shirley Kimmel, is an adult individual residing at 334 Charles Road, Meehanicsburg, PA 17055. This Honorable Court by Order dated 11 June 2003, granted an Interpleader filed by Attorney David Knauer, ofKnauer & Associates, L.S.C., Plaintiff. A copy of said Order is attached hereto and marked at Exhibit A. Attorney David Knauer represented Shirley Kimmel in a personal injury lawsuit. The lawsuit was settled outside &Court. The net proceeds due Shirley Kimmel on account of the personal injury lawsuit is $44,000.00. Attorney David Knauer was holding the sum of $44,000.00, however pursuant to the Court Order of June 11, 2003, has deposited the sum of $44,000.00 in an interest-bearing account in the Office of the Prothonotary, Court of Common Pleas of Cumberland County. The Social Security number of Shirley Kimmel is 206-32-0641. The proceeds that interpleaded into the Office of the Prothonotary in the mount of $44,000.00 are the sole and exclusive property of Shirley Kimmel. Shirley Kimmel avers to her knowledge, information and belief, that she is the only claimant to her $44,000.00 personal injury proceeds. Shirley Kimmel further avers that she is not aware of any other person or institution that has filed a claim against her either in this Court or elsewhere in writing claiming any portion of her personal injury proceeds. 8. Shirley Kimmel avers and alleges that she is the only proper claimant to the $44,000.00 fund and the lawful owner of said fund. WHEREFORE, Shirley Kimmel respectfully prays that this Honorable Court order and direct that she receive the sum of $44,000.00 held by the Prothonotary together with any interest thereon. RESPECTFULLY SUBMITTED: SA Cn, AITO~£Y-AT-LAw 352 So~th Sporting Hill Road Mechanicsburg, PA 17050 (717) 737-2033 I.D. # 18727 VERIFICATION I verify that the statements made in this Claim are true and correct. I understand that false statements herein made are subject to penalties of 18 PA. C.S. §4904, relating to unswom falsification to authorities. DATE 2 KNAUER & ASSOCIATES, L.S.C., PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNT~., PENNSYLVANIA V, : SHIRLEY KIMMEL AND CAVALRY : INVESTMENTS formerly CONSECO, : DEFENDANTS : 03-1563 CIVIL TERM AND NOW, this ORDER OF COURT I~[~.- day of June, 2003, the Rule entered on April 14, 2~)03, IS MADE ABSOLUTE. The petition of Knauer'& Associates, LS.C. for interpleader, IS GRANTED. EdgarB. Bayley, J. David W. Knauer, Esquire For Plaintiff James M. Bach, Esquire For Shirley Kimmel Cavalry Investments P.O. Box 75428 St. PauI,.MN 55175 COPY :sal . KNAUER & ASSOCIATES, L.S.C., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF · CUMBERLAND COUNTY, PENNSYLVANIA SHIRLEY KIMMELAND CAVALRY INVESTMENTS FORMERLY CONSECO, DEFENDANTS : 03-1563 EQUITY TERM ORDER OF COURT AND NOW, this ~ ~ ~ day' of July, 2003, IT IS ORDERED that an adjudication shall be conducted in Courtroom Number 2, Cumberland County Courthouse at 11:00 a.m., Monday, August 4, 2003. Edgar B. Bay ey, J.~ David W. Knauer, Esquire For Plaintiff James Bach, Esquire For Shirley Kimmel Cavalry Investments P.O. Box 75428 St. Paul, MN 55175 :sal KNAUER & ASSOCIATES, L.S.C., PLAINTIFF SHIRLEY KIMMEL AND CAVALRY INVESTMENTS FORMERLY CONSECO, DEFENDANTS IN THE COURT OF COMlVION PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-1563 EQUITY' TERM ORDER OF COURT AND NOW, on this L~ ~ day of August 2003, IT IS ORDERED, that the Prothonotary shall remit to Shirley Kimmel the sum of $44,000..00, together with interest, if any, thereon. Edga~ B~. B~ley, ]. ' ~ ./l~vid W. Knauer, Esquire For Plaintiff Fores M. Bach, Esquire Shirley Kimmel /~_ ~alry Investments P.O. Box 75428 St. Paul, MN 55175 :mi ORRSTO'vVN BANK. P.O. BOX 250 SHIPPENSBURG, PA 1725/ 0313 pAYTOTHE ORDER OF_ DATE AUG'lIST 12. 2003 4873501223 69-35/519 _$43,595.42 .DOLLARS PAYABLETHROUGH BB&T CHARLESTON,WV Checking/Savings/Club Debit Customer Name ~ ' ,, ~- ' ~ Description_ ~ ~-- 'L~ ~* ~' ~b ~ (51) Closing Acct. ~he~kinQ (58) Regular w/d ~ (53) Misc. Debit_ (50) Closing Acct ...... (66) MMA Debit_ ~ ~ ~ Oo.ec,,o. ~T ~ ~o) c,o~i.gAcc~.~~ C.s~ome~S~g"a~"~e ~ ~ (~2~ Hometown Investment Withdrawal~ ~ Prepared By_ ~~'