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HomeMy WebLinkAbout07-1905 PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 152372 BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2005-28CB MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-28CB 7105 CORPORATE DRIVE PLANO, TX 75024 Plaintiff v. TIESHA BROOKS A/K/A TIESHA 1VI. BROOKS 410 WEST PERRY STREET ENOLA, PA 17025-2538 Defendant ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM CUMBERLAND COUNTY CIVIL ACTION -LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 152372 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment maybe entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9108 File #: 152372 IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 et seq. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS File #: 152372 COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL ESTATE. File #: 152372 1. Plaintiff is BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC. ALTERNATIVE LOAN TRUST 2005-28CB MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-28CB 7105 CORPORATE DRIVE PLANO, TX 75024 2. The name(s) and last known address(es) of the Defendant(s) are: TIESHA BROOKS A/K/A TIESHA M. BROOKS 410 WEST PERRY STREET ENOLA, PA 17025-2538 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 06/16/2005 mortgagor(s) made, executed, and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS A NOMINEE FOR COUNTRYWIDE HOME LOANS, INC. which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Book: 1911, Page: 3834. PLAINTIFF is now the legal owner of the mortgage and is in the process of formalizing an assignment of same. The mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 4. The premises subject to said mortgage is described as attached. 5. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 12/01/2006 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. File #: 152372 6 The following amounts are due on the mortgage: Principal Balance $76,403.11 Interest $2,124.21 11 /01 /2006 through 04/06/2007 (Per Diem $13.53) Attorney's Fees $1,250.00 Cumulative Late Charges $96.84 06/16/2005 to 04/06/2007 Cost of Suit and Title Search 750.00 Subtotal $80,624.16 Escrow Credit ($244.26) Deficit $0.00 Subtotal 244.26 TOTAL $80,379.90 7 8 If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriff s Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. Plaintiff is not seeking a judgment of personal liability (or an in personam judgment) against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. File #: 1523'72 9. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, andlor Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff a or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 10. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $80,379.90, together with interest from 04/06/2007 at the rate of $13.53 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. PHELAN HALLINAN & SCHMIEG, L P By: /s rancis S. Hallinan LAWRENCE T. PHELAN, ESQUIRE DANIEL G. SCHMIEG, ESQUIItE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff File #: 152372 LEGAL DESCRIPTION ALL THOSE TWO CERTAIN lots or tracts of ground situate in the Village of Enola, Township of East Pennsboro, County of Cumberland and Commonwealth of Pennsylvania, more particularly bounded and described as follows: TRACT NO. 1: BEGINNING at a point on the south side of Perry Street, said point being at a distance of ninety-five (95) feet measured in a westerly direction from the southwest corner of Perry Street and Zion Street; thence in an easterly direction along Perry Street twenty-five (25) feet, more or less, to a point; thence in a southerly direction along a line running through the center of the partition wall of a double two and one-half story frame dwelling house one hundred fifteen (115) feet to a point on the northern line of a ten (10) foot alley; thence along said alley in a westerly direction twenty-five (25) feet, more or less, to a point; thence in a northerly direction along lands now or formerly of Emanuel Hoopy, one hundred fifteen (115) feet to a point, the place of BEGINNING. BEING part of Lots Nos 1, 2, 3, and 4, Section D, Plan No. 1, Hoppy's Addition to Enola, said plan being recorded in Cumberland County Records in Plan Book 1, Page 8. HAVING thereon erected the western half of a double two and one-half story dwelling house numbered 410 Perry Street, Enola, Pennsylvania. TRACT N0.2: File #: 152372 BEGINNING at a point in the southern line of a 10 foot wide alley seventy (70) feet wets of the western line of Perry Street; thence southwardly along lands late of Harry I. Kerr, seventy (70) feet to a northern line of another 10 foot wide alley; thence westwardly along the northern line of said 10 feet wide alley seventy (70) to the northeast corner of the intersection of said 10 foot wide alley with a 12 foot wide alley; thence northwardly along the eastern line of said 12 foot wide alley seventy-six (76) feet, more or less, to the southeast corner of the intersection of said 12 foot wide alley with the 10 foot wide alley first mentioned; thence eastwardly along the southern line of said 10 foot wide alley 70 feet to a point, the place of BEGINNING. BEING the western one-half of Lots Nos. 5 and 6, Section D, Plan No. 1 Hoppy's Addition to Enola aforesaid. 410 WEST PERRY STREET, ENOLA, PA 17025-2538 PARCEL NUMBER 9-14-0832-378A File #: 152372 VERIFICATION FRANCIS S. HALLINAN, ESQUIRE hereby states that he is attorney for Plaintiff in this matter, that Plaintiff is outside the jurisdiction of the court and/or the verification could not be obtained within the time allowed for the filing of the pleading, that he is authorized to make this verification pursuant to Pa.R.C.P. 1024 (c), and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are based upon information supplied by Plaintiff and are true and correct to the best of its knowledge, information and belief. Furthermore, counsel intends to substitute a verification from Plaintiff upon receipt. The undersigned understands that this statement is made subject to the penalties of 18 Pa.C.S. Sec. 4904 relating to unsworn falsifications to authorities. 'lJ/ LeC- Francis S. Hallinan, Esquire Attorney for Plaintiff DATE: 7 ~ O7 t""1 _ r.,,a .^--r --_.~ ~ i. C7 ~,. ^i 4. , 1 t `_ O ~ ~ .. ~ ~ 1 ~ - ~ ~ _. r ~ J ~ . _ _ --_~ ~ ' ~ .. c.~ c,,~~ .~ ^~ V ~ fi SHERIFF'S RETURN - REGULAR CASE NO: 2007-01905 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLANp BANK OF NEW YORK VS BROOKS TIESHA AKA TTESHA M BRO JESSICA HERMANSEN Sheriff or Deputy Sheriff of Cumberland County,P~nnsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon BROOKS TIESHA AKA T~ESHA M BROOKS DEFENDANT the at 1631:00 HOURS, on the 18th day of April 2007 at 410 WEST PERRY S'1CREET ENOLA, PA 17025 TIESHA BROOKS by handing to a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 14.40 Affidavit .00 Surcharge 10.00 00 42.40~ ~ ~ plGb ~'~ Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 04/19/2007 PHELAN HALLINAN SCHMIEG By. D y Sheriff A.D.