HomeMy WebLinkAbout01-1486 FX
SAlOIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS.AT.LAW
26 W, High Street
Carlisle. PA
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CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, f/k/a
GREEN TREE CONSUMER
DISCOUNT COMPANY,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2001 - 01486
CIVIL ACTION - EQUITY
vs,
STEVEN A. FAILOR and CYNTHI~
L. FAILOR,
Defendants.
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 warne? 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 Compllaint or for any other claim or relief requested by the
Plaintiff. You may lose money or property or other rights important to you.
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YOU SHOULD TA~E 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
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SAlOIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS'AT'LAW
26 W, High SITeet
Carlisle, PA
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CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, f/k/a
GREEN TREE CONSUMER
DISCOUNT COMPANY,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - EQUITY
: NO, 2001 - 01486
vs.
STEVEN A. FAILOR and CYNTHIA
L, FAILOR,
Defendants.
COMPLAINT FOR MORTGAGE
REFORMATION AND IMPOSITION
OF CONSTRUCTIVE TRUSTS
PARTIES
1. Plaintiff is CONSECO FINANCE CONSUMER DISCOUNT
COMPANY, f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, a mortgage
company duly organized and doing business at 7360 Kyrene Road, Tempe, Arizona
85283.
2. Defendants are STEVEN A. FAILOR and CYNTHIA L. FAILOR,
adult individuals, believed to be married, residing at 525 Mount Rock Road, Newville,
Cumberland County, Pennsylvania 17241.
3. On November 27, 1998, Plaintiff and Defendants entered into a
loan transaction, at which Plaintiffs loaned $200,000.00 to Defendants, and
Defendants executed and delivered a Note and Mortgage to secure said debt. A copy
of the settlement sheet for said transaction is attached hereto as Exhibit "A", a copy of
said Note is attached hereto as Exhibit "8", and a copy of said Mortgage is attached
hereto as Exhibit "C".
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SAlOIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS-AT-LAW
26 W, High Street
Carlisle. PA
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4. Defendants defaulted upon their obligations under said Note, and
Plaintiffs commenced an action in mortgage foreclosure against Defendants to No,
2000-03316 in the Court of Common Pleas of Cumberland County. Defendants
having failed to respond to said Complaint in Mortgage Foreclosure, Plaintiffs entered
a judgment by default against Defendants in the amount of $242,150.95, on July 21,
2000.
5. In the settlement documents and in documents relating to the
application for the Mortgage, Defendants repeatedly represented that the property to
be mortgaged was the property at 525 Mount Rock Road, Newville, Cumberland
County, Pennsylvania, which included their residence,
6, The Mortgage in question described the property to be mortgaged
as "all that certain property situated in the Township of West Pennsboro, County of
Cumberland and State of Pennsylvania, being more fully described in Deed dated
9/12/96, recorded 10/10/96, appearing among the land records of the County and
State set forth above, in Deed Book 147, Page 403."
7. After investigation, Plaintiffs have discovered that the property
described in Deed Book 147, Page 403, is not the property upon which Defendants
dwelling is located, which bears the address of 525 Mount Rock Road, Newville,
Cumberland County, Pennsylvania 17241, but, in fact, was a part of a property sold by
Defendants to Daniel R. Mains, by Deed dated and delivered August 31, 1998, and
recorded in Deed Book 184, Page 502. Said conveyance took place before the
settlement between the parties on November 27, 1998.
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COUNT I. MUTUAL MISTAKE
8. Paragraphs 1 through 7 are incorporated herein by reference as
though fully set forth.
9. It is believed and averred by Plaintiffs that both parties intended
the mortgaged property to be that which includes Plaintiffs dwelling at 225 Mount
Rock Road, Newville, Cumberland County, Pennsylvania, as said tract is described in
the final subdivision plan for Steven A. and Cynthia L. Failor, dated November 3, 1999,
and recorded in Plan Book 81, Page 34, in the Office of the Recorder of Deeds of
Cumberland County, which tract consists of the residual of tract No.1, a part of that
property described in Deed Book 108, page 558, and in addition Lot 4A, consisting of
3.9049 acres, which includes a one-story block commercial structure, with the address
535 Mount Rock Road. The legal description of said tract is attached hereto as Exhibit
"0".
10. Because of the mutual mistake of the parties, the Mortgage and
Notes executed and delivered by the Plaintiffs to the Defendants did not bear the
correct description of the property intended to be mortgaged. This mistake was not
SAlOIS
SHUFF, FLOWER known by either Plaintiff or Defendants at the time the Mortgage and Note were
& LINDSAY
ATIORNEYS.AT.LAW
26 W. High Street
Carlisle, PA
executed and delivered, Plaintiff has requested that Defendants join in a new
Mortgage to reform the defected description, and Defendants have refused to do so.
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SAlOIS
SHUFF, FLOWER
& UNDSAY
ATIORNEYS-AT-LAW
26 W. High Street
Carlisle. PA
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COUNT II. FRAUD
11, Plaintiff incorporates paragraphs and all of the allegations
contained in paragraphs 1 through 10, inclusive in this Complaint as set forth herein at
length.
12. In the alternative, if the evidence establishes that, in fact,
Defendants were aware of the defective nature of the legal description, then by the
mistake of Plaintiff and the fraud of Defendants in concealing the defect in the
description from Plaintiffs, the Mortgage that was executed did not include the
description of the property agreed to be mortgaged by the parties.
13. The inaccurate description of the property on the Mortgage, was
consequently the result of a mistake of the Plaintiff and the fraud of Defendants in
concealing this knowledge,
WHEREFORE, Plaintiff demands the following relief against the
Defendants:
A. To prevent further unjust enrichment to Defendants, that
the Mortgage executed by Defendants and delivered to Plaintiff be reformed to include
the accurate description of the property which was agreed and intended to be
mortgaged, and which includes Defendants residence at 525 Mount Rock Road and
the commercial property at 535 Mount Rock Road, which description is attached
hereto as Exhibit "D",
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SAIDIS
SHUFF, FLOWER
& LINDSAY
AlTORNEYS-AT-LAW
26 W. High Street
Carlisle, P A
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B. That immediately on reformation of the Mortgage Plaintiff
be permitted to foreclose on the property so described, and that the Court impose a
constructive trust on the property and order Defendants acting as Trustees to transfer
the property to Plaintiffs.
C. That the Court award to Plaintiff in addition to the principal,
interest, penalty and late charges on the aforesaid Mortgage all of Plaintiffs costs and
expenses in enforcing the Note and Mortgage, including reasonable attorneys fees of
Plaintiffs attorneys,
D, Such other and further relief as the Court may deem just
and proper, together with the costs of this action,
SAIDIS, SHUFF, FLOWER & LINDSAY
Attorneys for the Plaintiff
Ii
James D. lower, dr
I.D. #27742
26 West High Street
Carlisle, PA 17013
(717) 243-6222
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02/i4/01
16:31
MCCABE,WEISBERG&CoNWAY,PC ~ 914803336457
NO. 934
"'03
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VERIFICATION
The undersigned, Diane Alessi, hereby certifies that she is the Lead Foreclosure
Specialist of the Plaintiff, Conseco Finance Consumer Discount Company, f/kIa Green Tree
Consumer Discount Company, in the within action, an that she is authorized to make this
verification and that the forgoing facts are true and correct to the best of her knowledge,
information and belief and further states that false statements herein are made subject to the
penalties of 18 PA.C.S.~4904 relating to unsworn falsification to authorities.
D~~C
Diane AUesI Al es s i
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SeltI~nt Sta\ertlent
OptiODal Form for
TnansatUons wiIhout Sellen
111101.
Application #:. 980722~528
ALoan #: 6901441'4783
,., OMB~No. 2502-Mn
SSN # 194 50 3936
v,s, Departmeat.r IIousIog
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N_ a: AddraI orBamrowr: Steven A FailQr NlIDtil:AddrasofUodior.
~ehi8 L Pailor GreeD '1'rea OCWt\llllllU' .D1.0DlIDt co.p_y
5 S Mount R.ock Rd 3401 ~a:aale Drive 8W.t. 1111
Newville, PA 17241 Caq:o Bill, hJmeylYllllia 1'70:11
I'nlpIlrtY 1AcIUon: (ll'dlffmm tnaiHft) -..... ~---- ~--- 0,
525 Mount Rock Rd Pbcc:oI"Scldaaau:3:: Hartzdale Drive
Newville, PA 17241 ca Hill PA 1701l
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o INJIW.JlSC&OW ACC01JNTDlSCLOS'UllItllTA"IEMENI'
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~ /l,. A~ /;:27'?/~fStt'\\.,n L~~'\)",. u-:::J?9A.
( o.r: .Bonower DIItl:.
Steven A Failor Cynth Failor FclrmH\JD.IAt2J94)
a..ur. Sy~ lroc.. $I, Cloud. lot'" .,-800417.23411 Foo-m HUD-1A 1 "'8184 '''''~ 1 gf 11 .r. RESPA
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eXHIBIT
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APP # 9807225528
LN # 69-0144478-3
NOTE
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I. BORROWER'S PROMISE TO PA V
In rewm for a loan that Illave ra:eivcd, 1 promise 10 pay U.S. $..*P.9.~.Q~9.:.C!.Q..................., (this amount is.
called .priDcipal"), plus interest, to lbe onler of1he Lender. The Lender is ...~~.~~.~.!:~~~.R+!".c:~~.~!n:r:..~'IOJ.
~.!r.~~.~!-.t:~.~};~:....~..JH..~~:..!:~...~.'Z!'~.~.................................................................................
I _ Ibat the Lender may tnmsfer Un. NOle, The Len<ler or anyone who takes chi. NOle by transfer and who i.
eolilled to roceive paymeuts under chi. Nole is called the "Note Holder, "
2. INTI!REST
lmerest will be <barged 00 unpaid pritll:ipal UIIliI the full amount uf prillCipal bas been paid. I will pay il1tmsl at a
yearly_of .....~~.,.~.qQ..... %. Interest will becl1arsed beginning ou ,...........'?~1'~'!\l?!!r...?"..!}.?,L.................
'The iotCrcSt rate n:quired by Ibis Section 2 is tbe J1lte I will pay both before and after any defd.ult de$cribed in
SectioD 6(8) of this Note, '
3. PAYMENTS
(A) Sebeduled Payments \
I will pay pritll:ipal 8\ld ioterest by making paymeots wbeR ",beduled:
[J I will make .......~p.9...,.........,....... paymeots of $.}".H!.,,?,~.................................,., each ol1,he
......... ........:?ry.~............... ................. of eat.ll .... .~9.r~~h. .................................... ....... ....... ......
.................. ............., ............ .....,.... ......' beginning on .....z.~H~..~t. .J;:!~.?..,.........,...... .......
o I will make paymeots as follows:
Din additlou to the paymeots described above, I will pay a "baIlllO\l payment" of $ ...................................
on ......................,.................. . The Note Holder will deliver or mail to me notice prior to maturity thai
the balloon payment is due. This notice will slate the balloon paymenl amount and the date- dial: it is due.
(B) Maturlly Dale and Place of Payments
I will make tbest payments as scbeduled untit I have paid all of the principal aud interest and any other charges
dc:scribed below Ihat 1 may owe under this NOIe. My scheduled paymenlS will be applied 10 interest before priOl.-;pa1. If, on
.........p.~~.~~~.;-..~/...~.q~~..................................... J still owe amounts under thisNoJe,1 will pay IhO#amounts
in full on IhaI date, which is called the "maturily dale..
1 wiD make my scheduled paymews at .....q~~~.I}..:x:~~.~.'...7.~.tcLl?:.J~Y.r.~ll~..liq..';,t..:!'.~~~.~..~...~~.?~.~....
................... ...... ... ....... ... ........ .......................................... ........................ ................. or 41 a difrelCDt
place if required by the Note Holder,
4. BORROWER'S RIGHT TO PUPA Y AND I'REPA YMENT PENALTY
I bave the right to make payments of principal at any time before !bey are due, A payment of pritll:ipal ooly is
known as 11 .prepayment.. When I make a pn:pa~nt. 1 will tell die N* Hulder in writing tluit I am dlling so. l!I ] will
(!ily a prepayment penalty of ... ~J.:~.~n~.I?-.~..f.~~~~~.f}.; .,Q,I)..~p'~. E~~...\H?-P.~!.~..;\9.~.9..~~m:..J.t.~.~.~..~mt:.~;r::e
.~~.J?~~{iI.l?q~ ..~..!!..p.~tR..~~.~h?:rr..-?~..~E.;h~..~F.R'!!.. !:n~..~~F.~..E!..;.l?~.. ~.,?;m:............ ........ ....,....... ....
.......................................................,.............................,............................, if] prepay Ibis Note in full.
The Note Holder will use all of my p,..yments to reduce the amount of principal that 1 owe under Ibis Note. ]f I
make a paniaJ prepayment, chere will be 110 cl1aRlles in the due date or io the amooUl of my tI10IIlbly payment ool... lb.
Note Holder agrees io writiRll to those cbaoges.
5. LOAN CHARGES
]f a law. whicb applies 10 this loan and which sets maximum loan charges. is finally imerpreted so that lbe interesc
or ocher loan charges collected or to be coll=ed in connection with this loan cxc:ed the permitted limits. then: (i) any
sw:b 1_ cbarge shall be redoced by Ibc -... necessary 10 reduce Ibc charge to the pennitted limit: and (iQ any sums
already colleeled flOlll me wbich ..-I permilled limits will be refunded to me. The Nole Holder may choose '0 make
chis rerund by reduciDg !be pritll:ipal I owe uoder this Note or by making . diree1 payment to me, If a refund redoces
priocipal, tb. reduction will be trea1ed as a partialptepayment.
G. BORROWER'S FAILURE TO PAV AS REQIJIREI)
(A) Late Charge for 0__ Payments
If che Nme Holder bas not received che full ..-un of any scbedu1ed payment by !be end of ........t~.........
eaJendar days after IlIe drue il is due. I will pay a late charge 10 lhc Note Holder, The aRlOUDl of the cl1a~ will be
J.9.d!!!9.~.. % ,. . 1 will pay tbis late charge promptly but ooIy oneo 00 each
lalepayment. 0 e unp ~ pa n or ~ Whichever is greater.
(B) Default
If I do not pay the full amoum of eacb scbeduled paymem OR dte date it is doe, I will be iR defaull,
(C) Nolke of Default
If J am in default. the Note Holder may seod me a writteo notice telling me that if 1 do rot pay the overdue amount
by a certaio date, the Note Holder may require me to pay immediately dte full amount of principal wbich bas DIlt been paid
and all Ihc interest Ihat I owe on dUll amowu. ThaI date must be at least 30 days after the dat= on which the notice is
deliveml or mailed to me.
(0) No Waiver By Note Holder
EyeD if. at.a time when J am in default. tlJe Nore Holder does not require me 10 pay immcdia1eJy jn full as described
above, the Note Holder will still have me right 10 do &0 jf I am ill default at a later time.
(1;:) Pa_ of Note Bolder's C.... and E_..
Jf lire Nou: Holder has required me to pay immediately in full as described above, me Note Holder will have the
right to be paid back by me for an of its costs and expenses in enforcing this Note to the exteDl not prohibited by
applicable law. Those expcoscs incluc1e, for example, reasonable attorneys' fees.
MULTIPURPOSE FIXEO RATE NOTE IMUl T1STA TEl
II-Ir*_ 1I>A_ 1rIc" SI. CIoucI, MIt fom> QToMHR-MNM 1I2,,"
3.1.1.3.03
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EXHIBIT
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7..GI\'ING OF NOTICES ,
Unless. applicable law fequires a different method. any uotite dial must be 8iven \0 1m UI1dcr this Note win be given
by dolivering it or by mailing it by first class mail to me at the Property Add.... above or at. difrmnt add.... if I give
the NOIe Holder a nDdce of my diffe.... address,
fur! notiao lblIl mu.. be gl..... \{I \he Nere HuIder under this Hole will be given by mamog it by first class mail '0
the NIIlC Holder at the address SIaled in Section 3(B) on JllI8C I of this ~DIe or at a differotlt ad...... if I am given a notice
of II1at differonl ad_,
S, OBUGATlONS OF PIlItSONS \JNDER THIS NOTE
If more than one per$OD sips this Note. each ~r.lOn is fully aDd personally Obligated 10 keep aU of che pmm.scs
made in ads NOIe. inc1udiog die promise 10 pay Ihe full amount owed. Any person who is a guaranror. surelY or endorser
of this Note is also obligated OJ do these things. A.ny _ who taI<<s over 11_ obligations, im:lllllillll the obliga.iolls of
. ........r. swoty or codorser of this Note, is also obligated to keep,all of the promises 111m. in this Note, The Note
Holder may cnfon:e its rights under lids Note against each person individually or agaillSl all or us logether. Tllis means dun
aoy oue of us may be RqUi<ed OJ pay aiL of the amounts owed under this\Note.
,. WAIVERS
I and any other person who has obligations under Ibis Note waive the rights of preseubuenl and notice of dishonor.
-Praentment" means lbe right 10 require die NOIe Holder to demand payment of atUOUtUS tLw:, -Notice of dishonor- means
the right to requiro the Note Holder to give notice to other persoDS II1at ap,QlIIlts do. bave DOt been paid,
10. SECURED NOTE
In addition to the protections given to the Note Holder under this NoIe~ a Mongage~ Deed of Trost or Secu.rlty
Deed (the "Security Instt'UnJeD(-). dated the same. date as this Note. protects die Note Holder fronl possible losStS which
might resull if I do not keep the promises wbicb I make in this Note. That Security lnsuunlent describes how and under
what condidollS I may be requi<ed to make immediate payment in run of all amaonts I o\vc under this Nllle. Some of those
conditions ale described as folloWli: I
Tnmsfer orlbe Property or a _daJ 10....... in 1Iom>wer. If all Dr any part of the Property or
any interest in it is sold or transferred (or if a bendicillI inte~ jn Bomlwer is sold or inlnsferml and
Borrower is not a natural person) without Lender's prior' written consent. Lender Dlay. at its optioo. require
immediate payment in full of all sums secured by this Security imsuument. However. dlis option sball not he
exercised by Lender if exercise is prohibited by federal Jaw as of the date of this Security Instrument.
If Lender exercises this option. Lender shall give Borrower notice of acceleration. 11u: notice shall
provide a period Of not less than 30 days from the date the nouce is delivered or mailed within whicb
Borrower mull pay aU sums secured by c.his Security Instt\Imenc. If Borrower fails to pay these SUIIIS prior to
the expiration of this period. Lender Dlay invoke: any remedies permiued by this Security InstnDllent without
funher notice or demand on Borrower.
II. BALLOON PAYMENT DISCLOSURE
{Complete the: balloou paJDleRt: notice below if this Note provides fur a balloon payment at Section 3(A) on page 1
of this NOIe,]
'Ill\S LOAN IS PAYABLE IN FULL ..;.........................................................................................
.................,.................,......................,........,.............,...:............................,..... I MUST REPAY THE
ENTIRE PRINCIPAL BALANCE OF TIlE LOAN AND IINPAID INTEREST THEN DUE, WHICH MAYBE A
LARGE PAYMENT. TIlE LENDER IS UNDER NO OBLIGATION TO REFINANCE TIlE LOAN AT THAT
TIME. I WILL, THEREFORE, BE REQUIRED TO MAKE PAYMENT OUT OF OTHER ASSETS THAT I MAY
OWN, OR I WILL HAVE TO FIND A LENDER, WHICH MAY BE TIlE LENDER I HAVE THIS LOAN WITH,
W1LLlNG TO LEND ME TIlE MONEY, IF I REFINANCE 'Ill\S LOAN AT MATURITY, I MAY HAVE TO PAY
SOME OR ALL OF TIlE CUlSING COSTS NORMALLY ASSOCIATED WITH A NEW LOAN EVEN IF I
OBTAIN REFINANCING mOM TIlE SAME LENDER.
WITNESS THE HAND(S} ANI> SEAL(S) OF TIlE NDERSIGNED, / ~
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.. ...... ...............;.;::Y."'.fI:..... ......,.... ,........, ................ ..(Seal)
even A Failor ~
.........................................................................,.............{SeaI}
Cynthia L Failor -80,,_
,."..r,~~Q,..\..~.:..,...............,....,{SeaI}
.~'S ,-
{Sign Original Only]
..............Irs..8LClou4.MN ",....ClToMPfR.MNftf 5J2llJll$
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CommODwealth Dr P_IYIUIia, Spa.. Abo..This Lioe For lRo<ordiDg Data
OPEN-END MORTGAGE
This Mortgltge secures future advances
1. DA!E AND P~~. lb~ date of this MonJge (Security Instrument) is ...~?~~~~.::..~.~!....~.~.~~....... and the
parttes. their addresses and tax idelltification ninDbI\ls. if required, are as follows:
I,
Steven A Failo5 and Cynthia L Failor .
HUSBAND AND WIFE. AS TENANTS BY THE ENTIRETIES
I
Application I 980722552&
..... # 690L4447aJ
MORTGAGOR:
o If checked. refer to the alW:bed Addenduln incorporated herein. for additional Mortgagors. their signatures and
aclcnowledgmems. ' .
LENDER: . Greim Tree Consumer Discount Company
3401 Hartzdale Drive Suite 118
Camp Hill, Pennsylvania 17011
2. CONVEYANCE. For good and valuable conside$tion. the receipt and sufficiency of which is acknow~.ed. ;!!ld to'secure
the Secured Debt (defined below) and Mortgagor'S performance under this Security Instrument, Mo~gae; ~tS. ,1?a<gains,
conveys and mortgages to Lender the following described property: ' .' '. Cl ~:~: ,.," ,
. . ., :. ~'.mn~
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lbe property is located in .......~~~.~.::~~~..,..............,..,.............:......... at ................................~~........,....
(Co..ntv)
I . 17241
............................................................ ...... ...... ....................................... PeIIIIlSylvama ...., ....,'..... ,..... ,..
. (Add....) I (CiIY) (ZIP Code)
Together with all rights, easements. appurtenance~. royalties. mineral rights, oil and gas rights, all water and riparian rights,
ditches, and water stock and all existing and future improvements. suucmres, fixtureS. and replacemel\lS thaI may now, or at
any time in the furore. be part of the teal estate ~ribed above (all referred to as "Property").
3. MAXIMUM OBLI9&;r.~N. lbe total p~pal.am.ou~ ~ by this Security ~~ at anyone time shall not
exceed $ .................................................... . This 1imitauon of amount does DOll\IClude lDlereSt and other fees and
charges v-.didly made pursuaDt to this Security Instrument. Also. this limilation does DOl apply to advances made under the
teImS of this Security Instrument to protect Lender's seCurity and to perfonn 'any of the covenants contained in this SecurilY
IDsuumeDL
4. SECURED DEBT AND FUTURE ADVANCES. The lerm "Secured Debt" is defined as follows:
A. Debt incum:d under the temls of all promissory note{s). contract(s), guaranty(s} or otI1er evidence of debt described
below and all their extensions. renewals, modifications or substitutions. (When referencing the debts below it is
suggested rhar you include irems such as borrowers' names, nore amounts. interest rarer, moturitJ'dntes. ere.)
Note dated November 27, 1998, between Green Tree Consumer DiscOunt Company and
Steven A Failor, Cynthia L Failor, for $200,000.00, maturing Decemt.
PENNSYlVANtA . MORTGAGE tNOT FOR FNMA. FHLMe, FHA OR VA USE> BOOK1502 ~o22
$'U48aN.ersSysatM.Inc..St.CIoUd,MN Cl10003SJ1.,2341) Fonn"E-M1'G-PA 121191'94. PAGE to
Form ID #1U184
EXHIBIT
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B. All furore advances from Lender to Mongagor or other future obligations of Mortgagor to Lender under any promissory
note, contract. guaranty. or other evidence of debt executed by Mongagor in favor of Lemler executed after this Security
Instrument whether or not this Security InstIUment is specifically referenced. If more than ooe person signs this Security
Inslnllllent, each Mongagor agrees that this Security Instrument will secure all future advances and future obligations
that are given 10 or incurred by any ooe or more Mortgagor. or any One or more Mortgagor and oibers. All furore
advances and other future obligations are secured by this Security Iustrumem even though all or pan may not yet be
advanced. All future advances and other furore obligations are secured as if made on the date of this Seturity IosuumetIL
Nothing in this Security Instrument shall constirote a commilDlent to make additional or furore loam or advances in any
amount, Any such commiunent must be agreed to in a separate writing.
C. All obligations Mortgagor owes to Lender, which may later arise, to the extent not prohibited by law. including, but not
limited to, liabilities for overdrafts relating to any deposit account agreement between Mongagor and Lender.
D. All additional sums advanced and expenses incurred by Lender for insuring, preserving or otherwise protecting the
Property and its value and any other sums advanced and expenses incurred by Lender under the terms of this Security
lustrument.
.
This Security Instnmtent will DOt secure any other debt if Lender fails to give any required notice of the right of rescission.
5. PAYMENTS. Mongagor agrees that all payments under the Secured Debt will be paid when due and in accordance with the
terms of the Secured Debt and this Security Instrument.
6. WARRANTY OF TITLE. Mongagor warrants that Mortgagor is or will be lawfully seiz.ed of the estate conveyed by this
Security Instrument and has the. right 10 grant. bargain, convey, sell. and mortgage the Propeny. Mortgagor also warrants that
the Propeny is UDeDCUlDbered, except for encumbrances of record,
7. PRIOR SECURITY IN'IERESTS. With regard to any other mortgage. deed of trust, security agreement or other lien
document that created a prior security interest or encumbrance on the Property. Mongagor: agrees:
~
A. To make all payments wben due and to perfoIDl or comply with all covenants.
B. To promptly deliver to Lender any notices that Mongagor receives from the holder,
C. Not to allow any modification or extension of, nor to request any fuwre advances under any note or agreement secured
by the lien document without Lender's prior written CODsetlI.
8. CLAIMS AGAINST TITLE. Mortgagor will pay all taXes, as.""""'"1Its. liens, encumbt'llDCeS. lease payments, ground rents,
utilities. and other cbarges relating 10 the Property when due, Lender may require Mortgagor to provide to Lender copies of all
notices that such' amOUDts are due and the receipts evidencing Mortgagor's payment. Mortgagor will defend title 10 the
Propeny against any claims that would impair the lien of this Security InstrUment. Mongagor agrees to assign to Lender, as
requested by Lender, any rights. c1aims or defenses Mongagor may have against patties who supply labor or materials 10
maintain or improve the Propeny.
9. DUE ON SALE OR ENCUMIlRANCE. Lender may, at its option, declare the entire balance of the Secured Debt to be
immf'1li.,.\y due and payable upon the creation of, or contract for the creation of, any lien, encumb.tam:e, traDSfer or sate of the
Propeny. This right is subject to the restrictions imposed by federal law (12 C.F.R. 591), as applicable. This coveuant shall
tun with the Propeny and shall remain in effect until the Secured Debt is paid in full and this Security lnstrument is released,
10. PROPERTY CONDITION, ALTERATIONS AND INSPECTION. Mortgagor will keep the Propeny in good condition ilnd
make all repairs thatare reasonably necessary. Mortgagor shall not commit or allow any waste, impairment, or deterioration of
the Propeny, Mortgagor will keep the Propeny free of noxious weeds and grasses. Mongagor agrees that the nature of'the
occupancy and use will not substantially change without Lemler's prior written consent. Mortgagor win DOt pennit any cbl\Dge
in any license, restrictive covenant or easement without Lender's prior written consent. Mongagor will notify Lender of all
demands, proceedings, claims and actions against Mongagor. and ohoy loss Dr damage to the Property.
C198A &lnkeJS Sy:'!I1ems.lnc.. St. Clolal, MN 11.a00-3!7.23411 Form Ri.MTG.PA 12fl9/94
.8ood502raGE 1823
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Lender or Lender's agents may, at LencJer's option, enter the Propeny at any reasonable time for the purpose of inspecting the
Propeny. Lender shall give Mongagor notice at the time of or before- an inspection specifying a reasonable pUIpOse for tbe
inspection. Any inspection of the Propeny shall be entirely for Lender's benefit and Mongagor will in no way rely on
Lender's inspection.
11. AUTIIORITY TO PERFORM. If Mongagor :fuils to perform any duty or any of the covenants contained in Ibis Security
Instrument, Lender may. without notice, perfo1l\l or cause tbem to be perfolDled. Mongagor appoints Lender as attorney in '
fact to sign Mongagor's name or pay any BOlOURI necessary for perfonnance. Lender's right to perfonn for Mongagor sball
not create an obligation to perfOlDl, and Lender's' fuilure to perfonn will not preclude Lender from exercising any of Lender's
other rights under the Jawor this Security Instrull/ent. If any consuuction on the Propeny is discontinued or not carried on in a
reasonable roalDler, Lender may take all Sleps necessary to protect Lender's security interest in the Propeny. including
completion of the construction.
12. ASSIGNMENT OF LEASES AND RENTS. Mortgagor irrevocably grants, bargains, conveys and mongages to Lender as
additional security all the right, ritle and merest im and to any and all existing or future leases, subleases, and any other written
or verbal agreemeots for the use and occuJllll!CY of any portion of the Propeny, including any extensions, renewals.
modifications or substiwtions. of such agreementS (all referred to as "Leases") and reDlS, issues and profits (all referred to as
"Rents"). Mpngagor will promptly provide LeDl\er with true and correct copies of all existing and future Leases. Mongagor
may collect, receive, enjoy and use the Rents' so long as Mongagor is not in default under the tenDS of this Security
Instrument, !
Mongagor agrees that this assignment is immedultely effective between the parties to this Security Instrument and effective as
to third panies on the recording of this Security l~trUDlent, and this assignment will remain effective until the Obligations are
satisfied. Mongagor agrees that Lender is entitled 10 notify Mongagor or Mortgagor's tenants to maIte paymeDlS of Rents due
or to become due directly to Lender after such! recording. bowever Lender agrees not 10 notify Mongagor's tenants until
Mongagor defaults and Lender notifies Mongagor of the default and demands that Mongagor and Mongagor's telllmts pay all
Rents due or to become due directly to Lender. On receiving notice of default, Mongagor will endorse and deliver to Lender
any payment of Rents in Mongagor's possession and will receive any ReDlS in trusl for. Lender and win nol commingle the
ReDlS with any other funds. Any amounts collected win be applied as provided in this Secw:ity InstrUlDenl. Mongagor warrants
that no default exists under the Leases or any applicable JandJord/tenant Jaw. Mongagor also agrees to maintain and require
any tenant to comply with the lerms of the Leases and applicable law.
13. LEASEHOWS; CONDOMINIUMS; PLANNED UNIT DEVEWPMENTS. Mongagor agrees to comply with the
provisions of any lease if this Security Insmunent is On a leasebold, If the Propeny includes a UDit in a condominium or a
planned unit development, Mongagor will pedOllJl all of Mongagor's duties under the covenants, by-Jaws, or regulalions of
the condontinium or planned UDit development.
14. DEFAULT. Mongagor will be in default if any pany obligated on the Secured Debl fuils to maIte payment when due.
Mongagor will ,be in default if a b=ch occurs under. the tenns of this Security InstrUIIlCnt or any other document .cxecuted for
the pUIpOse of creating. securing or guarantying the Secured Debt. A good faith belief by Lender that Lender at any time is
insecure with respect 10 any person or entity obligated on the Secured Debt or that the prospect of any payment or the value of
the Propeny is impaired shall also constiwte an eyent of default.
IS" REMEDIES ON DEFAULT. In sonie illSWlCes\ federd! and state Jaw will require Lender to provide Mongagor with notice
of the right to cure or other notices and may establish time schedules for foreclosure actions. Subject to these limitatinns, if
any. Lender may accelerale the Secured Debt and foreclose this Security Imtnmlent in a manner provided by Jaw if Mongagor
is in default. I
At the oplion of Lender. all or any pan of the agtbed fees and cbarges. accrued interest and principal shall become immediately
due and payable, after giving nodce if required )by law, upon the occurrence of a default or anytime thereafter. In addition,
Lender shall be entitled to all the remedies provil:h.d by law, the terms of the Secured Debt. this Se<:urlty Instrument and any
related documeDls. All remedies are distinct. ~UIadve and not exclusive, and the Lender is entitled to all remedies provided
at Jawor equity. wbether or not expressly set fohh. The acceptanCC by Lender of any sum in payment or pattial payment on
the Secured Debt after the balance is due or is accelerated or after foreclo,-ure proceedings are filed shall not constilUle a waiver
of Lender's right to require complete cure of any existing default. By nOI exercising any remedy on Mongagor's def..ult,
Lender does nOl waive Lender's righl to later consider the event a defaull if il continues or happens again.
5: ./: (pag. 3 O!-51
:tllSlSl4e.l'lk~NSystems.lnc..St.Clauc:l.MN 11-100.397-23-"'-1' FormRE-MTG-PA 12/18/84 ,B~OK1502'aGE 824: ~It... ~
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16. EXPENSES; ADVANCES ON COVENANTS; ATTORNEYS' FEES; COLLECTION COSTS. Except when prohibited
by law. Mongagor agrees to pay all of Lender's expenses if Mongagor breaches any covenant in this Security Instrument,
Mongagor will also pay on demand any amount incurred by Lender for insuring, inspecting, preserving or otherwise
protecting the Property and Lender's security interest. These expenses will bear interest from the date of the payment until paid
in fuUar the hillhest interest rate in effect as provided in the tenus of the Secured Debt. Mongagor agteeS to pay all costs and
expenses incum:d by Lender in collecting, enforcing or protecting Lender's rights and retnedies under this Security Instrument.
This amount may include, but is not limited to. attorneys' fees, court costs, and other legal expenses. This Security Insuumellt
sball remain in effect unti1 released, Mongagor agrees to pay for any recordation costs of such release.
17. ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES. As used in this section, (I) Enviropmpn1al Law means,
without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, 42 U.S.C. 9601
et seq.). and all other federal, state and local laws, regulations, ordinances. court orders, attorney general opinions or
interpretive lellers concerning the public health, safety, welfare, environment or a hazardous substance; and (2) Hazardous
Substance meaus any toxic, radioactive or hazardous material, waste, pollutant or conrnminonr which has characteristics which
render the substance dangerous or potentially dangerous to the public health, safety. welfare or ellViromnc:ot. The term
includes, without limitation, any substances defined as "hazardous material." "toxic subSlll1lCCS," "hazardous waste" or
"hazardous substance" under any Environmental Law.
Monsagor rep~nts. warrants and agrees that:
A, Except as previously disclosed and acknowledged in writing to Lender, no Hazardous Subsl8llCe is or will' be located,
stored or released on or in the propeny. This restriction does not apply to small quantities of Hazardous Substances that
are geocrally recognized to be appropriate for the normal use and maintenance of the Property.
B. Except as previously disclosed and acknowledged in writing to Lender. Mongagor and every tenant have been, are, and
sIra11 remain in full compliance with any applicable Environmental Law.
C, Mongagor sIra11 immediately notify Lender if a release or threatened release of a H;lzardous Substance OCCUts on, under
or about the Property or there is a violation of any Environmental Law concernil!l: the Propeny, In such an event,
Mortgagor shaI1 r.aIct all necessmy remedial action in accordance with any Environmemal Law.
D. Mongagor sIra1l immediately notify Lender in writiD8 as soon as Mongagor bas reason to believe mere is any pending or
threatened investigation, claim, or proceeding relatiD8 to the release or threatened release of any Hazardous Substance or
the violation of any Environmemal Law.
18. CONDEMNA nON. Mongagor will give Lender prompt notice of any pending or threatened action, by private or public
entities to purchase or take any or all of the Prnpeny through condemnation. eminent domain. or any other meam. Mongagor
authorizes Lender to interVene in Mongagor's name in any of the above descn"bed actions or claims. Mortgagor assigns to
LeDder the proceeds of any award or claim for damages connected with a condemnation or other taking of all or any pan of the
Propeny, Such proceeds shall be consideIed payments and will be applied as provided in this Security Instrument. This
assigmnent of proceeds is subject to the terms of any prior mongage. deed of ttUSt. security agreement or other lien document,
19. INSURANCE. Mongagor shall keep ,Property inSured agaiostloss by fire, flood, theft and omer hazards and risks rellSOoably
associated with the Property due to it!; type and 19cation. This insurance shall be maintained in the amounts and for the periods
that Lender reqllires. The insurance carrier providing the insurance sIra11 be chosen by Mongagor subject to Lender's approval,
wbicb sllaI1 not be unreasonably withheld. If Mongagor fails to mainrain the coverage described above, Lender may. ar
Lender's option, obrain coverage to protect Le~'s rights in the Property according to the terms of this Security Instrument,
All insurance policies and renewals shall be acceptable to Lender and sIra11 include a standard >mortgage clause' an4, where
applicable, "loss payee clause.' Mongagor shall imm~iarely notify Lender of cancellation or tennination of the ~ance,
Lender sIra1l have the right to hold the policies and renew-oils. .If Lender requires, Mongagor shall immediately give to Lender
all receipts of paid premiums and renewal notices. Upon loss, Mongagor shall give immediate notice to the insurauce carrier
and Lender, Lender may make proof of loss if nOl made immediately by Mortgagor,
101914 BriCl~ Sys1en'll.lnc_ St. Choud. JoAN 11.800-397-2341' Form FlE-MTQ-PA 12118/84
.Bood502rAGE .825
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Unless otherwise agreed in writing. all inslUllDce Iproceeds sba1l be applied to the restoration or repair of the Propeny or 10 the
Secured Debl, whether or nOI then due, al Lender's option. Any application of proceeds 10 principal shall nol exlend or
posrpone the due date of the scheduled paymedt nor change the amounl of any paymenr, Any excess will be ,paid to the
Mortgagor. If the Property is acquired by Lend~r, Mortgagor's right to any insurance policies and proceeds resulting from
~~.to the Property before Ibe acquisition ~all pass to Lender to the extem of the Secured Debt immediately before the
acqulSIROn,
I
2.0. ESCROW FOR TAXES AND INSURANCE. Unless otherwise provided in a separate agreemenr, Mortgagor will not be
required 10 pay to Lender funds for taxes and insUrance in escrow.
21. FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Mortgagor will provide to Lender upon request, any
financial swemem or information Lender may deem reasonably necessary. Mortgagor agrees to sign, deliver, and file any
additional documents or cenifications thaI Lender may consider necessary to perfect, continue, and preserve Mortgagor's
obligations under this Security Instrumenl and Lender's lien status on the Property,
22. JOINT AND INDIVIDUAL LIABILITY; CO-SIGNERS; SUCCESSORS AND ASSIGNS BOUND. All duties under Ibis
Security Instrument are joint and individual. H Mortgagor signs this Security Insuument but does not sign an evidence of debt,
Mortgagor does so only to mortgage MortgagOr's intereSt in the Property to secure payment of the Secured Debt and
Mortgagor does not agree to be personally liable ion the Secured Debl. If this Security Instrument secures a guaranty between
Leoder and Mortgagor, Mortgagor agrees to waive any rights that may prevem Lender from bringiog any action or claim
against Mortgagor or any party indebted under the obligation, These rights may include, but are nol Iimiled to, any
anti-deficiency or one-action laws. Mortgagor ag~ thaI Lender and any parry 10 this Security Instrument may extend. modify
or make any change in the terms of this Security Inslrument nr any evidence of debt wilboul Mortgagor's consent, Such a
change will nol release Mortgagor from the tebns of this Security Insuument. The duties and benefits of this Securily
Instrument shall bind and benefil the successors al/d assigns of Mortgagor and Lender.
23. APPLICABLE LAW; SEVERABILITY; INTERPRETATION. This Security Instrument is governed by the laws of the
jurisdiction in which Lender is located, except 10 the extent olberwise required by ~ laws of the jurisdiction where the
Property is located. This Security InstrUDlem is complete and fully integlllted. This Security Insuumem may DOt be amended or
modified by oral agreemenl. Any section in thiS Security lustrumem, auachments. Dr any agn:emem related to Ibe Secured
Debl that conflicts with applicable law Will not If effective, ll1IIess thaI law expressly or impliedly permits the variations by
wrinen agreement, If any section of this SecurilY Instrument cannot be enforced accordiog to ils terms, that section will be
severed and will nol affect Ibe enfoIteability of lhe remainder of this Security InsuumenL Whenever used, Ibe siogular shall
include the plural and the plural the singular. The captions and beadings of the sections of this SecurilY Instrument aIe for
convenience only and are not to be used to inlerpret or define the terms of this Security Insrroment. T"!IDe is of the essence in
this Security Insuumem.
24. NOTICE. Unless otherwise required by law. any notice sball be given by delivering it Dr by mailiog il by firsl class mai1to
the appropriarepany"s address on page I of this SecurilY Instrument, Dr to any olber address designaled in wririog. Notice 10
one mortgagor will be deemed 10 be notice to allmnngagors.
25. WAIVERS. Except to the Clltenl prohibited by law, Mortgagor waives any right 10 appraisement relating 10 the Property.
1;1894 BlInkers Sv-t.m:a, ,"c.. St. CIIIlJd. MN n.800..397.2'411 Form RE-MTG.PA '211&/9.4
BoodS02 rAGE .826
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26. 01llER TERMS. If checked, the following ale applicable to this Security Instrument:
. [J line of Credit. The Secured Debt includes a revolving line of credit provision, Although the Secured Debt may be
reduced to a zero baIanee, this Securil)' lusllUlllent will remain in effect until released.
o Construction Loan. This Security IUStroment secures an obligation incurred for lhe CODStrUction of an improvement on
the Propeny.
o FIXture FIling. Mortgagor grants to Lender a security interest in all goods that Mongagor owns now or in the future
and that are or will become fixtures related to the Property. This Security iDstrwnent suffices as a financing statement
and any carbon, photograpbic or other reproduction may be filed of record for purposes of Article 9 of the Unifonn
Commercial Code,
o Purcbase Money. This Security Instrument secures advam:es by Lender used in whole or in pan to acquire the
Property. Acconlingly, this Security lnsUument, and the lien hereunder, is and sball be construed as a purchase money
mongage with all of the righlS, priorities and benefilS thereof under the laws of the Commonweallh of Pennsylvania.
o NOTICE TO BORROWER: THIS DOCUMENT CONTAINS PROVISIONS FOR A VARIABLE
INTEREST RATE.
D Riders. The covenants and agreements of each of the riders cbecked below are incorporated into and supplement and
amend the teID1S of lhis Security lDsm1ment. [Check all applicable boxes]
o CondominiumRider 0 Planned Unit Development Rider 0 Other ...................................................
o Additional Terms.
SIGNATURES: By signing below, Mongagor, imending to be legally bound hereby, agrees to the teons and covenants contained
in this Security Instrum:Dt and in any att"hm...... Mongagor also acknowledges receipt of a copy of this Security u.....wu~u1. on
ACKNO~~~~TH OF ...~~.~~r.~:':~!:'.~.~.~ C~~9iP' OF ..4:1?:~-d...........................} ss.
(IodMOW) On this, the .....??~........... day of ..........................~.................... before me ..1I.~..{iI'!t,;...?::.r1~.......
the undersigned officer, personally appeared ..~~~'::':.~..~~~~':":..~~.':!-.:.::.~~.~~.::.....................................,,..
........................................................................................., known 10 me (or satisfactorily proven) to be
the person(s) whose oame(s) is subscribed to lhe within insttument. and acknowledged that belsbe executed the same
for the purposes therein contained.
In wilDess whereof. I bereumo set my band and official seal. t1 '\~'~\!~IJ_
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My (soat)v._~.:~~PUbllc ....... ..................J.!.r.':C....>4lJl;g:~~~
GioenT... Boro. AI8ghonyCounly ~y.. i ~ ~:~~
MyCOlllmlssinn E"",.. May 8, 2002 -: ... ~ t;;:.. . :p' ..
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Member. PonnsylWia_ol Nlllalies ..............,........,........................~~~..~.~~. .~.f...'r'J
Tit1cofOlUccr 't;, '.;.~:1:.~mo:-~
I ...~ --'<: dress f the Lender 'thin named '. Green Tree ConBUlI\er DiBo"""t c""'Pan~ ~~.... 'i=.-.s !t' :...
tIS """,,,by \OQw,ed that the ad 0 WI JS, ....................................................~ ' ,.~,' ."
340111art.:da1e Dri.ve Suite l.1a~ Camp till, PeDBsylvania 17011 ",,,.u.~. "....
....-.........-....................................................,...................................................................................... ~~.!.-......
.....-...........................................................................
C1,t.. e.t*.,. Svsems.ln~_ St. ClClUd. MN (1-800.397.2341) Form RE-MTG-PA 121t9194
800<<1502 PAGE 827
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EXHIBIT A
Leaal Deserintion.
ALLTIIAT CERTAIN PROPERTY SITUATED IN THE TOWNSHIP OF WEST PENNSBORO. COUNTY OF
CllMBERLAND AND STATE OF PENNSYLVANIA. BEING MORE FOLLY pESCRIBED IN DEED DATED 9/12/96.
RECORDED 10/10/96. APPEARING AMONG THE LAND RECORDS OF THE COtINTY AND STATE SET FORTH
ABOVE IN DEED BOOK J.47, PAGE 403.
Parcel ID: 46-09-0521-031
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,BDoK1502 rACE .828
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LEGAL DESCRIPTION
ALL THAT CERTAIN tract of land situate in West Pennsboro Township,
Cumberland County, Pennsylvania, being more particularly bounded and described as
follows:
BEGINNING at a nail in the center line of Mt. Rock Road (T-325), at the dividing
line of the Western line of a 50 feet wide private right-of-way and Lot No. 7 of Final
Subdivision plan for Steven A. and Cynthia L. Failor, recorded in Plan Book 78, page
32; thence along said private right-of-way, North 31 degrees 30 minutes 00 seconds
West, a distance of 1,260.40 feet to an iron pin set at the Northeastern corner of Lot No.
4-B as shown on the hereinafter mentioned subdivision plan; thence along said Lot No.
4-B, South 53 degrees 00 minutes 00 seconds West, a distance of 371.25 feet to a
point; thence South 35 degrees 35 minutes 00 seconds West, a distance of 205.00 feet
to a point; thence South 53 degrees 00 minutes 00 seconds West, a distance of 38,25
feet to a point at the Northeastern corner of Lot No.4; thence South 37 degrees 00
minutes 00 seconds East, a distance of 327,52 feet to a point on the dividing line of Lot
NO.2 of Final Subdivision Plan for Steven A. and Cynthia L. Failor, recorded in Plan
Book 71, page 84; thence along said Lot No, 2, South 53 degrees 00 minutes 00
seconds West, a distance of 450,25 feet to a point in the center line of aforesaid Mt.
Rock Road (T-325); thence along said center line North 77 degrees West, a distance of
800.00 feet, more or less, to a point at the line of lands now or formerly of Francis
Mains; thence along said lands, North 03 degrees West, a distance of 313.50 feet to a
point; thence North 45 degrees East, a distance of 471,90 feet to a point; thence North
36 degrees 07 minutes 23 seconds West, a distance of 257.48 to an iron pin set at the
Southwestern corner of Lot No, 5 of Survey/Subdivision for Steven A. and Cynthia L.
Failor, recorded in Plan Book 77, page 61; thence along said Lot NO.5 North 48
degrees 33 minutes 33 seconds East, a distance of 540.45 feet to an iron pin set;
thence North 60 degrees 24 minutes 47 seconds East, a distance of 522.72 feet to an
iron pin set at line of lands now on formerly of Glenn Motter; thence along said lands
South 31 degrees 30 minutes East a distance of 2,068.00 feet, more or less, to a point
in the center line of aforesaid Mt. Rock Road (T-325); thence along said center line
North 87 degrees 48 minutes 43 seconds West, a distance of 57.92 feet to a point, the
Place of BEGINNING.
Being residual Tract No.1, Lot No, 4 and Lot No. 4A of Final Subdivision Plan for
Steven A. and Cynthia L. Failor, dated November 3, 1999, and recorded in Plan Book
81, page 34.
EXHIBIT
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26W. mghs_
Carlisle, PA
CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, f/k/a
GREEN TREE CONSUMER
DISCOUNT COMPANY,
vs.
STEVEN A. FAILOR and CYNTHIA
L. FAILOR,
Defendants.
,
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,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - EQUITY
: NO. 2001 - I Lj%J
WRIT OF SUMMONS
TO STEVEN A. FAILOR and CYNTHIA L, FAILOR, DEFENDANTS:
You are hereby notified that CONSECO FINANCE CONSUMER
DISCOUNT COMPANY f/kla GREEN TREE CONSUMER DISCOUNT COMPANY,
Plaintiff has commenced an action against you.
Date: March
/LJ+>-
,2001
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CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, f/k/a
GREEN TREE CONSUMER
DISCOUNT COMPANY,
vs.
STEVEN A. FAILOR and CYNTHIA
L. FAILOR,
Defendants.
TO THE PROTHONOTARY:
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: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - EQUITY
: NO, 2001 - )L{l'~
Mount Rock Road, Newville, Pennsylvania 17241.
PRAECIPE
Please issue a Writ of Summons in Trespass against Defendant and
request that the Cumberland County Sheriff make service upon Defendants at 525
SAIDIS, SHUFF, FLOWER & LINDSAY
Attorneys for the Plaintiff
James . Flow r, Jr,
I.D,#27
26 West High Street
Carlisle, PA 17013
(717) 243-6222
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CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, flk/a
GREEN TREE CONSUMER
DISCOUNT COMPANY,
vs.
STEVEN A. FAILOR and CYNTHIA
L. FAILOR,
Defendants.
TO THE PROTHONOTARY:
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: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - EQUITY
: NO. 2001 _ II../t(,.
PRAECIPE
Please enter a lis pendens against Defendants in this matter.
March J 'J...
,2001
SAlOIS, SHUFF, FLOWER & LINDSAY
Attorneys for the Plaintiff
)
James D. Flo e, Jr.
1.0.#27742
26 West High Street
Carlisle, PA 17013
(717) 243-6222
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CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, f/k/a
GREEN TREE CONSUMER
DISCOUNT COMPANY,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 2001-1486
STEVEN A. FAILOR and
CYNTHIA L. FAILOR,
Defendants
PRAECIPE TO ENTER APPEARANCE
To Curtis R. Long, Prothonotary:
Please enter our appearance on behalf of the defendants, Steven A. Failor and Cynthia L. Failor,
in the above captioned case.
Respectfully submitted,
IRWIN, McKNIGHT & HUGHES
(
'3 cA,-
By:
By:
Mark D. Schwartz, Esq.
Supreme Ct.I.D. # 70216
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorneys for defendants
Date March 26,2001
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CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, fIkIa
GREEN TREE CONSUMER
DISCOUNT COMPANY,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 2001-1486
STEVEN A. FAILOR and
CYNTHIA L. FAILOR,
Defendants
CERTIFICATE OF SERVICE
We, Roger B. Irwin, Esq., and Mark D, Schwartz, Esq., hereby certifY that a copy of
attached Praecipe to Enter Appearance was served upon the following by depositing a true and
correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle,
Pennsylvania, on the date referenced below and addressed as follows:
James D. Flower, Jr.
Saidis, Shuff, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
IRWIN, McKNIGHT & HUGHES
By:
.)..'~
By:
Mar D. Schwartz, Esq.
Supreme Ct.I.D. # 70216
60 West Pomfret Street
Carlisle, Pennsylvania 17013
(717) 249-2353
Attorneys for defendants
Date March 26,2001
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CASE NO: 2001-01486 P
SHERIFF'S RETURN - REGULAR
.
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CONSECO FINANCE CONSUMER DISC
VS
FAILOR STEVEN A ET AL
WILLIAM DIEHL , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS
FAILOR STEVEN A
was served upon
the
2001
DEFENDANT
, at 0018:20 HOURS, on the 16th day of March
at 525 MOUNT ROCK ROAD
NEWVILLE, PA 17241
JASON FAILOR (ADULT SON)
by handing to
a true and attested copy of WRIT OF SUMMONS
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
5.58
.00
10.00
.00
33,58
Sworn and Subscribed to before
me this .;( g!:.- day of
~,L.; JJroI A.D.
Q:;rL~ 0.. )z.,.dj,,~ #
P othonotary
So Answers:
i!"~1~~~~
R. Thomas Kline
03/19/2001
SAIDIS, SHUFF, FLOWER
eriff
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SHERIFF'S RETURN
REGULAR
CASE NO: 2001-01486 P
t.
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CONSECO FINANCE CONSUMER DISC
VS
FAILOR STEVEN A ET AL
WILLIAM DIEHL , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS
was served upon
FAILOR CYNTHIA L
the
DEFENDANT
, at 0018:20 HOURS, on the 16th day of March
2001
at 525 MOUNT ROCK ROAD
NEWVILLE, PA 17241
by handing to
JASON FAILOR (ADULT SON)
a true and attested copy of WRIT OF SUMMONS
together with
and at the same time directing His attention to the contents thereof,
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
6.00
.00
.00
10.00
.00
16.00
rR.?..,,<~
R. Thomas Kline
03/19/2001
SAIDIS, SHUFF, FLOWER
Sworn and Subscribed to before By:
me this .?r"E:..
day of
fiA~ .2.40/ A.D.
~.... J} /14.,(J(J<,u ~
Prothonotary ,
SAIDIS
SHUFF, FLOWER
& LINDSAY
AITORNEYS-AT-LAW
26 W. High Street
Carlisle, P A
.-.' >"
CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, f/k/a
GREEN TREE CONSUMER
DISCOUNT COMPANY,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2001 - 01486
CIVIL ACTION - EQUITY
vs.
STEVEN A. FAILOR and CYNTHIA
L. FAILOR,
Defendants.
ACCEPTANCE OF SERVICE
I, MARK D. SCHWARTZ, ESQUIRE, hereby accept service of the
Complaint filed in the above captioned case, on behalf of the Defendants, STEVEN A.
FAILOR and CYNTHIA L. FAILOR.
By ~
Mark D. Schwartz, Esquire
60 West Pomfret Street
Carlisle, PA 17013
~ 2~-rt+
Date: ~ ~N€.
,2001
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CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, f/k/a
GREEN TREE CONSUMER
DISCOUNT COMPANY,
PLAINTIFF,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 2001-01486 CIVIL TERM
vs.
STEVEN A. FAILOR and CYNTHIA
L.FAILOR
DEFENDANTS.
PRELIMINARY OBJECTIONS OF THE DEFENDANTS
TO THE PLAINTIFF'S COMPLAINT
AND NOW, this 13th day of August, 2001, come the Defendants, Steven A. Failor and Cynthia L.
Failor, by and through their attorneys, IRWIN, McKNIGHT & HUGHES, and make the following
Preliminary Objections to Plaintiff's Complaint and support thereof ofthe following:
PRELIMINARY OBJECTIONS FOR FAILURE TO STATE A CLAIM
UPON WHICH RELIEVE CAN BE GRANTED
I. Plaintiff Conseco Finance Consumer Discount Company, fi'k/a, Green Tree Consumer
Discount Company, filed a Complaint to the above-referenced docket on or about June 21,2001, in the
Court of Common Pleas of Cumberland County.
2. Plaintiff in its wherefore clause requests that the mortgage be reformed to include a legal
description which includes the property located at 525 Mount Rock Road, Newville, Cumberland County,
Pennsylvania,
3. The Defendants do not own the property or residence located at 525 Mount Rock Road
and therefore the relief requested cannot be granted.
4. In light of the fact that the relief requested cannot be granted, the Complaint should be
dismissed or in the alternative the Plaintiff should amend its prayer for relief.
~ ,...-, ." ~ , '=":''''~''''''' , 'J =~ ' '''^'' ,- ~ -"=-,1""""""""..="'=~' ""_~,"~,,- - '=->""l!k>.l,~,~a;";,,,,'~,,-,f"'.',,,,<C",,~", =~,",t'~"-";'-a"",' "> "'''-'.'j' .-,':c', "c' ,~~. '~j
i
,
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,
WHEREFORE, Defendants, Steven A. Failor and Cynthia L. Failor, respectfully request that
Plaintiffs Complaint be dismissed or in the alternative be required to amend its prayer for relief in its
Complaint.
IRWIN, McKNIGHT & HUGHES
By::!1CM>> :'~~
Mark D. Schwartz, Esquire
160 West Pomfret Street
Carlisle, PA 17013
717-249-2353
Supreme Court J.D. No: 70216
Date: t/Jl.(~.IJ/lf- I~/)OO/
Attorney for Defendants,
Steven A. Failor and Cynthia L. Failor
-"
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CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, f/k/a
GREEN TREE CONSUMER
DISCOUNT COMPANY,
PLAINTIFF,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 2001-3825 CIVIL TERM
vs.
STEVEN A. FAILOR and CYNTHIA
L.FAILOR
DEFENDANTS.
CERTIFICATE OF SERVICE
I the undersigned hereby certify that on this 13th day of Augnst, 2001, a copy of the Preliminary
Objections of the Defendants to the Plaintiff's: Complaint was served by fIrst-class, postage prepaid
United States mail in Carlisle, Pennsylvania upon the following:
James D. Flower, Jr., Esquire
Saidis, Shuff, Flower & Lindsay
26 West High Street
Carlisle, Pa 17013
IRWIN, McKNIGHT & HUGHES
)jaAL f) Sr)uJ?,(Q
Mark D. Schwartz, Esquire -
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Carlisle, P A
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CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, f/k/a
GREEN TREE CONSUMER
DISCOUNT COMPANY,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2001 - 01486
CIVIL TERM
vs.
STEVEN A. FAILOR and CYNTHIJII.
L, FAILOR,
Defendants.
pLAINTIFF'S ANSWER
TO DEFENDANtS' PRELIMINARY OBJECTIONS
AND NOW, comes CONSECO FINANCE CONSUMER DISCOUNT
COMPANY f/kla GREEN TREE CONSUMER DISCOUNT COMPANY, Plaintiff herein,
by and through its attorneys, SAIDIS, SHUFF, FLOWER & LINDSAY, and makes the
following answer to Defendants, STEVEN A. FAILOR and CYNTHIA L. FAILOR'S,
preliminary objections:
I. Failure to State a Claim Upon Which Relief Can Be Granted
1, Admitted,
,
2. Admitted. By further answer, Plaintiff's said "wherefore" clause
I
incorporates by reference a particular legal description attached as Exhibit "0" thereto,
3, Denied, After reasdnable investigation, Plaintiff lacks sufficient knowledge
I
or information to form a belief las to the truth or falsity of the matters alleged in
Paragraph 3. Plaintiff's investigation thus far has revealed the following: (1) the
property referenced in the mortgage and Note had, in fact, been sold by the Defendants
Ii
.
SAlOIS
SHUFF, FLOWER
& LINDSAY
ATTORNEYS'AT'LAW
26 W. High Street
Carlisle, P A
1I1~
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prior to their execution of the morlgage and Note, as stated in Paragraph 7 of Plaintiff's
Complaint; and, (2) the property that Plaintiff contends was intended to be mortgaged
was conveyed by Defendants, at I~ast in part, after the filing of this action. Further, there
is no response required to the.. conclusion of law averred by Defendant regarding
I
whether or not particular relief sOLjght can be granted by this Honorable Court, however,
,
if such response were required, Plaintiff responds that ultimate determination of the fact
I
of ownership of the referenced property is not a fact which would, by itself, determine
the remedies available to Plaintiff. I
4. Denied. This is a conclusion of law to which no response is required,
however, if such response were required, Plaintiff incorporates the answer contained in
Paragraph 3 above and responds that Defendants have averred by their preliminary
objection no cause for Plaintiff's Complaint to be dismissed nor in the alternative, to
require Plaintiff to amend its prayer for relief as stated in its Complaint.
WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny
the Defendant's preliminary objections to Plaintiff's Complaint, and to award other such
relief as is appropriate under the circumstances.
SAlOIS, SHUFF, FLOWER & LINDSAY
Attorneys for the Plaintiff
Date: 11-/ 6~ 0/
James D. F ower, Jr.
1.0.#27742
26 West High Street
Carlisle, PA 17013
(717) 243-6222
2
II
.,
.
SAlOIS
SHUFF, FLOWER
& LINDSAY
AITORNEYS.AT.LAW
26 W. High Street
Carlisle. P A
'><
ATTORNEY VERIFICATION
I, James D. Floweir, Jr., Esquire, attorney for Plaintiff verify that the
statements made in the foregq>ing Plaintiffs Answer to Defendant's Preliminary
Objections are true and correct and certify that I am authorized to do so. The Plaintiff
representative in charge of this case is outside the jurisdiction of the Court and cannot
be conveniently obtained. I understand that false statements herein are made subject to
the penalties of 18 Pa. C.S. S 4904, relating to unsworn falsification to authorities.
Date: j /-/, ~ 0/
J mes D. Flower, Jr" Esqu' e
AlDIS, SHUFF, FLOWER LINDSAY
26 West High Street
Carlisle, PA 17013
3
II
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ATTORNEYS-AT-LAW
26 W, High Street
Carlisle, P A
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CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, f/k/a I
GREEN TREE CONSUMER
DISCOUNT COMPANY,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2001 - 01486
CIVil TERM
vs.
STEVEN A. FAILOR and CYNTHIA
l. FAilOR,
Defendants.
PRAECIPE TO LIST CASE FOR ARGUMENT
TO THE PROTHONOTARY:
,
Please list the within matter for the next Argument Court.
,
1. Matter to be argued: Defendants' Preliminary Objections.
I
2, Identification of counsel who will argue case:
I
(a) for Plaintiff: Jame~ D. Flower, Jr.
SAIIDIS, SHUFF, FLOWER & LINDSAY
26 W. IHigh Street
Carlisle, PA 17013
(b) for Defendants:
Mark D. Schwartz
IRWIN MCNIGHT & HUGHES
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4.
Argument Court date: December 12,2001
SAIDIS, SHUFF, FLOWER & LINDSAY
Attorneys for the Plaintiff
Date: J. 1-(6 - 01
Bf
James D, Flower, Jr.
1.0,#27742
26 West High Street
Carlisle, PA 17013
(717) 243-6222
II
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SHUFF, FLOWER
& LINDSAY
ATIORNEYS'ATlLAW
26 W, High Street
Carlisle. P A
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CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, f/k/a
GREEN TREE CONSUMER
DISCOUNT COMPANY,
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO, 2001 - 01486
CIVIL TERM
vs,
CIVIL ACTION - EQUITY
STEVEN A. FAILOR and CYNTHIA
L, FAILOR,
Defendants.
PRAECIPE TQ LIST CASE FOR ARGUMENT
TO THE PROTHONOTARY:
Please list the within matter for the next Argument Court.
1. Matter to be argued: Defendants' Preliminary Objections.
2. Identification of counsel wh(J will argue case:
(a) for Plaintiff: Jamesl D. Flower, Jr.
SAIDI$, SHUFF, FLOWER & LINDSAY
26 W. High Street
Carlisll!l, PA 17013
(b) for Defendants:
Mark D. Schwartz
ilRWIN MCNIGHT & HUGHES
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013
3. I will notify all parties in wriling within two days that this case has been listed for
argument.
4,
Argument Court date: January 2, 2002
SAIDIS, SHUFF, FLOWER & LINDSAY
Attorneys for the Plaintiff
II
Date: L #l..~~.. 0 ,
James D, Flower, r
I.D. #27742
26 West High Street
Carlisle, PA 17013
(717) 243-6222
II
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CONSECO FINANCE CONSUMER
DISCOUNT COMPANY, flkla GREEN
TREE CONSUMER DISCOUNT
COMPANY,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
STEVEN A. FAILOR AND
CYNTHIA L. FAILOR,
DEFENDANTS
: 01-1486 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO
PLAINTIFF'S COMPLAINT
BEFORE BAYLEY. J. AND GUIDO. J.
ORDER OF COURT
'2.~ _ day of January, 2002, the preliminary
AND NOW, this
objections of defendants to plaintiffs complaint, ARE DISMISSED.
Bythe~ /
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Edgar B. Bayley, J,
Forrest N. Troutman, II, Esquire
For Plaintiff
Mark D. Schwartz, Esquire
For Defendants
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Conseco Finance Consumer Discount Company,
flk/a Green Tree Consumer Discount Company
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
Steven A. Failor and Cynthia L. Failor
: NO. 01-1486 CIVIL TERM
ORDER OF COURT
AND NOW, December 31, 2001, by agreement of counsel, the above-captioned
matter is continued from the December 12, 2001 Argument Court list. Counsel is directed to relist
the case when ready,
By the Court,
~s D. Flower, Jr" Esquire
For the Plaintiff
~k D. Schwartz, Esquire
For the Defendant
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Court Administrator
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