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Home My WebLink About07-2148RICHARD F. STERN, ESQUIRE (03315) STEVEN K. EISENBERG, ESQUIRE (75736) BRADLEY D. SISLEY, ESQUIRE STERN AND EISENBERG, LLP THE PAVILION 261 OLD YORK ROAD, SUITE 410 JENKINTOWN, PENNSYLVANIA 19046 TELEPHONE: (215) 572-8111 FACSIMILE: (215) 572-5025 (COUNSEL FOR PLAINTIFF) IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA FOR CUMBERLAND COUNTY Resurgent Capital Services, L.P. 15 S. Main Street 7th Floor Greenville, SC 29601 Jamie L. Bollinger and John/Jane Doe 110 Cold Springs Road Carlisle, PA 17013 Defendant(s) Civil Action Number: a7 - J1q? COMPLAINT IN EJECTMENT CIVIL ACTION - EJECTMENT NOTICE This is an attempt to collect a debt and any information obtained will be used for that purpose. You have been sued in Court. If you wish to defend the claims set forth in the following pages, you must take action within twenty (20) days after this Civil Action and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense 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 Civil Action or for any other claim or relief requested by the plaintiff. You may lose money or property of other rights important to you. YOU SHOULD TAKE THIS PAPER TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH J:iDiane\Ejectment\RESURGENT-BOLLINGER CUMBERLAND 4-07.doc BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 800-990-9108 717-249-3166 J:\Diane\Ejectment\RESURGENT-BOLLINGER CUMBERLAND 4-07.doc NOTICE PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. §1692 ET SEQ., YOU MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF YOU DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE YOU WITH WRITTEN VERIFICATION OF THE DEBT, AS WELL AS THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM THE CURRENT CREDITOR. OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. IF YOU DO NOT DISPUTE THE DEBT, IT IS NOT AN ADMISSION OF LIABILITY BY YOU. IF YOU NOTIFY US IN WRITING WITHIN THE THIRTY (30) DAY PERIOD, WE WILL CEASE COLLECTION OF THIS DEBT, OR ANY DISPUTED PORTION OF IT, UNTIL WE HAVE OBTAINED THE REQUIRED INFORMATION AND MAILED IT TO YOU. ONCE WE HAVE MAILED YOU THE REQUIRED INFORMATION, WE WILL CONTINUE THE COLLECTION OF THIS DEBT. THIS LAW FIRM IS DEEMED TO BE A DEBT COLLECTOR. THIS ACTION IS AN ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. J:\Diane\Ejectment\RESURGENT-BOLLINGER CUMBERLAND 4-07.doc RICHARD F. STERN, ESQUIRE (03315) STEVEN K. EISENBERG, ESQUIRE (75736) BRADLEY D. SISLEY, ESQUIRE STERN AND EISENBERG, LLP THE PAVILION 261 OLD YORK ROAD, SUITE 410 JENKINTOWN, PENNSYLVANIA 19046 TELEPHONE: (215) 572-8111 FACSIMILE: (215) 572-5025 (COUNSEL FOR PLAINTIFF) IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA FOR CUMBERLAND COUNTY Resurgent Capital Services, L.P. 15 S. Main Street 7th Floor Greenville, SC 29601 Jamie L. Bollinger and John/Jane Doe 110 Cold Springs Road Carlisle, PA 17013 Defendant(s) Civil Action Number: a7 - aigp COMPLAINT IN EJECTMENT Cw ? c. 41 COMPLAINT CIVIL ACTION - EJECTMENT 1. Plaintiff is Resurgent Capital Services, L.P. (hereinafter referred to as "Resurgent")with offices located at 15 S. Main Street 7th Floor, Greenville, SC 29601. 2. Defendant is Jamie L. Bollinger, an adult individual with a last-known address of 110 Cold Springs Road, Carlisle, PA 17013. 3. Defendant is also John/Jane Doe any unknown adult individual(s) residing at 110 Cold Springs Road, Carlisle, PA 17013. 4. On March 7, 2007, premises 110 Cold Springs Road, Carlisle, PA (the "Property")was sold by the Sheriff of Cumberland County at Sheriffs Sale after due advertisement according to law and under and by virtue of a Writ of Execution issued out of the Court of Common Pleas of Cumberland County, No. 2006 CV 1242 at the suit of Resurgent Capital Services L.P. v. Jamie L. Bollinger. J:\Diane\Ejectment\RESURGENT-BOLLINGER CUMBERLAND 4-07.doc Plaintiff settled with the sheriff in a letter dated March 27, 2007 requesting a deed be prepared in the name of Plaintiff. A true and correct copy of the letter is attached hereto as Exhibit "A". 6. A true and correct copy of the legal description for the Property is attached hereto as Exhibit "B". 7. By virtue of Sheriffs Sale, Plaintiff is entitled to possession of the premises. 8. Defendant(s) is/are presently in possession of the said premises. WHEREFORE, Plaintiff, Resurgent Capital Services, L.P., demands that a Judgment in Ejectment be entered in its favor and against the Defendant(s). STERN D NBERG, LLP BY: STEVEN K. EISENBERG, ESQUIRE Attorney for Plaintiff J:\Diane\Ejectment\RESURGENT-BOLLINGER CUMBERLAND 4-07.doc .APR. 10. 2007 1:46PM STERN&STERCHO NO, 1123 P. 7 VERI)i+'ICA'X'XON Vicki Radford is a REO Coordinator for Resurgent Capital Services, L.P. and is autla.orized to sign this Verification on behalf of same, and states that he/she verifies the foregoing Civil Action against Jamie Bollinger and John/Jane Doe and avers the statements of fact therein contained are made subject to the penalties of 18 PA C. S. Section 4904 relating to the unworn falsification to authorities, and that same are true upon the signer's personal knowledge or information and belief. VICKI RADFORD DATE: -1 1-- #008943 294 LAW OFFICES Stern and Eisenberg LLP (successor to Stern and Stercho) 261 Old York Road . The Pavilion . Suite 410 . Jenkintown, PA 19046-3722 . Telephone: (215) 572.8111 . Facsimile: (215) 572.5025 New Jersey Office: 22 North Main Street . Lambertville, NJ 08530 March 12, 2007 RE: RESURGENT CAPITAL SERVICES, L.P. VS: JAMIE L. BOLLINGER C.C.P. CUMBERLAND COUNTY, NO. 2006-1242 CIVIL Sheriffs Office- Real Estate Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Dear Sir or Madam: Enclosed please find letter assigning bid to Resurgent Capital Services, L.P. together with Realty Transfer Tax Affidavit in duplicate. Please prepare the sheriff s deed, have it recorded and thereafter, returned to our office. Please do not hesitate to contact our office if you have any questions. 1 s, Very STEVEN K. EIS BERG SKE/dt Enclosures Richard F. Stern/rstern@sterneisenberg.com .Steven K. E berg.com .Bradley D. Sisley`/bsisley@sterneisenberg.com ?? 'Admittted to practice in PA&NJ LAW OFFICES Stern and Eisenberg LLP (successor to Stern and Stercho) 261 Old York Road. The Pavilion. Suite 410 . Jenkintown, PA 19046-3722. Telephone: (215) 572.8111. Facsimile: (215) 572.5025 New Jersey Office: 22 North Main Street . Lambertville, NJ 08530 March 12, 2007 RE: RESURGENT CAPITAL SERVICES, L.P. VS: JAMIE L. BOLLINGER C.C.P. CUMBERLAND COUNTY, NO. 2006-1242 CIVIL Sheriffs Office- Real Estate Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Dear Sir or Madam: Please assign my bid as attorney on the writ to Resurgent Capital Services, L.P., 15 South Main Street, 61i' Fl., Greenville, SC 29601. Very truly urs, STEVEN K. EIS ERG SKE/dt Richard F. Stern/rstern@sterneisenberg.com -Steven K.Eisenberg`/seisenberg@sterneisenberg.com -Bradley D. Sisley`/bsisley@sterneisenberg.com 'Admittted to practice in PA&NJ Olena W.Stercho (1955-2003) ALL THAT CERTAIN lot or parcel of ground situated in the Township of Dickinson, County of Cumberland, and State of Pennsylvania, bounded and described in accordance with survey made by John R. Williams, Professional Land Surveyor, a draft of which dated August 18, 1997, is attached hereto and incorporated herein by reference, as follows: BEGINNING at a set steel pin on the eastern line of 33 feet wide Township Road T-356 known as Cold Spring Road at corner of land now or formerly of Harold R. Rice; thence from said set steel pin at the Place of Beginning along said eastern line of 33 feet wide Cold Spring Road, South 23 degrees 26 minutes 40 seconds West a distance of 100.00 feet to a steel pin set in concrete; thence crossing said Cold Spring Road and continuing along line of land formerly of Luther Nogle and now or formerly of Ray A. Bear, North 63 degrees 50 minutes 00 seconds West a distance of 316.75 feet to a three (3) feet high pipe in line of other land of Ray A. Bear; thence along line of said other land of Ray A. Bear which was formerly of Earl Raudabaugh and later of George Bear, North 18 degrees 34 minutes 00 seconds East a distance of 89.70 feet to a three feet high pipe at corner common to said land of George Bear and land of John C. Walters and land now of Harold R Rice; thence along line of said land now of Harold R. Rice which was formerly of James G. Heiser, South 65 degrees 46 minutes 27 seconds East a distance of 324.05 feet, crossing said Cold Spring Road at a set steel pin at the Place of BEGINNING. THE ABOVE described lot of ground has thereon erected a one-story dwelling house and has a mailing address of 110 Cold Spring Road, Carlisle, Pennsylvania 17013. Parcel No.: 08-32-2326-015 BEING the same premises which M. Corinne Otto, Executrix of the Last Will and Testament of Mary A. Myers, Deceased, and joined by Dean W. Otto and Martha J. Otto, husband and wife; and joined by M. Corrine Otto, in her individual capacity, and David H. Myers, Jr., and Pearl 1. Gitt, by Deed dated January 13, 1999, and recorded January 19, 1999, in Book 192, Page 1017, as Instrument No. 1999-001765, granted and conveyed unto Jamie L. Bollinger, in fee. ? d a G V V3 Matthew J. Eshelman, Esquire 8 South Hanover, Suite 201, Carlisle PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 or (717) 395-8503 RESURGENT CAPITAL SERVICES, LP, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. DOCKET No. 07 - 2148 Civil Term JAMIE L. BOLLINGER and CIVIL ACTION - AT LAW JOHN/JANE DOE COMPLAINT IN EJECTMENT Defendants NOTICE TO PLEAD TO: Resurgent Capital Services, LP c/o Steven K. Eisenberg, Esq. 261 Old York Road, Ste 410 Jenkintown, PA 19046 You are hereby notified to file a written response to the enclosed Answer with New Matter and Counterclaim within twenty (20) days from service hereof or a judgment may be entered against you. Date: May 21, 2007 Matthew). Eshelman, Esquire, Pa Id. 72655 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 395-8503 M.Eshelman@hotmaii.com Attorneys for Defendants Bollinger Matthew J. Eshelman, Esquire 8 South Hanover, Suite 201, Carlisle PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 or (717) 395-8503 RESURGENT CAPITAL SERVICES, LP, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. JAMIE L. BOLLINGER and JOHN/JANE DOE Defendants DOCKET No. 07 - 2148 Civil Term CIVIL ACTION - AT LAW COMPLAINT IN EJECTMENT ANSWER WITH NEW MATTER AND COUNTERCLAIM Defendants Jamie L. Bollinger and Nikki S. Bollinger, his wife, (the "Bollingers") bring the following Answer with New Matter and Counterclaim to the Complaint in Ejectment filed by Plaintiff, Resurgent Capital Services, L.P., and in support hereof, aver as follows: 1. Admitted. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that another adult individual is residing at 110 Cold Springs Road, Carlisle, PA. By way of further answer, that individual is the wife and equitable owner of the property, Nikki S. Bollinger. 4. Admitted in part and denied in part. It is admitted that the property in question was exposed to Sheriff s Sale on March 7, 2007. It is denied that it was sold according to law. 5. Admitted. 6. Admitted. 7. Denied. The allegations contained in Paragraph 7 of Plaintiff's complaint are a conclusion of law to which no responsive pleading is required; but, to the extent such allegations are deemed to be factual, the same are denied. 8. Admitted. FACTS ALLEGED IN SUPPORT OF NEW MATTER AND COUNTERCLAIM 9. All preceding and subsequent allegations contained in this pleading are incorporated herein by reference. 10. In September 2001, the Bollingers filed for protection under the United States Bankruptcy Code. 11. The Bollingers named the Plaintiff's predecessor in title, CitiFinancial, Inc., as a creditor in that bankruptcy, and served them with notice of the filing. 12. The Bollingers' bankruptcy petition requested that the Plaintiffs mortgage lien be stripped off, and its claim relegated to unsecured status. 13. Plaintiff never objected to the proposed treatment under the bankruptcy plan. 14. The Bollingers' Plan was confirmed by the bankruptcy court, and then completed by the Bollingers. 15. The bankruptcy court issued a Discharge enjoining any creditor from seeking to collect a debt on September 22, 2005. 16. After the Bollingers' Plan was completed, their case closed, and the discharge injunction issued, the Plaintiff nonetheless sought to proceed under a foreclosure action. 17. Correspondence was sent to Plaintiff in July 2006, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference, directing the Plaintiff not to proceed in light of the bankruptcy court's order. 18. Despite directive and outline that the documents upon which the Plaintiff was proceeding had been altered by operation of federal law, Plaintiff chose to proceed to Sheriffs Sale. 19. In October 2006, written correspondence again was sent to counsel for the Plaintiff indicating that the underlying documents had be altered by the Bollingers' bankruptcy filing, and that Plaintiff would be proceeding only in violation of a federal discharge injunction. 20. When it became apparent that Plaintiff intended to proceed despite the bankruptcy court's order, a motion to re-open the case and reinstate the automatic stay was filed with the bankruptcy court in December 2006. 21. Counsel for the parties were engaged in settlement negotiations, and the recommendations of counsel were rejected by the parties - the Plaintiff, in particular - shortly before a December 2006 Sheriffs Sale. 22. As such, along with the motion to re-open the Bollingers' case, the Bollingers filed a motion for expedited consideration, which motion was heard by telephone conference. 23. The bankruptcy court granted the motion to re-open the case on December 6, 2006, a copy of the electronic notice of filing is attached hereto as Exhibit "C" and incorporated herein by reference. 24. At this point, the Bollingers' case remains open and pending before the bankruptcy court, if in an unusual procedural posture, and the Plaintiff has failed to obtain relief from the automatic stay. NEW MATTER 25. All preceding and subsequent allegations contained in this pleading are incorporated herein by reference. 26. Plaintiff's Complaint should be dismissed because the obligations, both in personam and in rem, of the Bollingers have been discharged in bankruptcy. 27. Plaintiff's Complaint should be dismissed by virtue of the doctrine of estoppel, where it is unfair and unjust for a creditor to proceed upon documents it knows to be disputed and in litigation before another court. 28. Plaintiff's Complaint should be dismissed by virtue of the doctrine of res judicata, where the documents underlying Plaintiff's action have already be adjudicated by a court of law having appropriate jurisdiction over them. COUNTERCLAIM 29. All preceding and subsequent allegations contained in this pleading are incorporated herein by reference. 30. Demand is hereby made for specific performance of the return of title to the subject premises to Jamie L. Bollinger by quitclaim deed. 31. Demand is hereby made for damages under the Federal Fair Debt Collection Practices Act. 32. Demand is hereby made for damages under the Pennsylvania's Unfair Trade Practices and Consumer Protection Law. 33. Demand is hereby made for damages under Section 1983 of the Civil Rights Act for the unlawful deprivation of property rights under color of state law. 34. Demand is hereby made for damages under Sections 362 and 1328 of the United States Bankruptcy Code. WHEREFORE, Defendants Jamie L. Bollinger and Nikki S. Bollinger (as Defendant Jane Doe), respectfully request this Court issue an award of specific performance of the quitclaim of real estate, an award of damages equal to the value of the real estate, an award of damages for violation of various state and federal rights, or an award for any or all of the above, and for costs and such other relief as the Court deems appropriate. Date: May 21, 2007 Matthew J. Eshelman, Esquire, Pa Id. 72655 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 395-8503 M.Eshelmanghotmail.com Attorneys for the Defendant Bollingers Matthew J. Eshelman, Esquire 8 South Hanover, Suite 201, Carlisle PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 or (717) 395-8503 RESURGENT CAPITAL SERVICES, LP, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. JAMIE L. BOLLINGER and JOHN/JANE DOE Defendants DOCKET No. 07 - 2148 Civil Term CIVIL ACTION - AT LAW COMPLAINT IN EJECTMENT VERIFICATION The undersigned, being the Defendants or their authorized representatives, verify that the foregoing document is true and correct to the best of my knowledge, information and belief, subject to the penalties of 18 Pa. C.S.A. § 4904, relating unsworn falsification to authorities. Date: l -07 By/For::?Ag ICJ ` Aez-114?1- -... Date: By/For: July 13, 2006 Steven K. Eisenberg, Esquire Stern & Eisenberg LLP The Pavilion 261 Old York Road, Suite 410 Jenkintown, PA 19046 RE: Resurgent Capitat Services, L.P. vs. Jamie L. Bollinger Mortgage Foreclosure of Cumberland County 06-1242 Dear Mr. Eisenberg: I would like to confirm that I represent Jamie and Nikki Bollinger with respect to the property located at 110 Cold Springs Road Carlisle, PA 17013. It is my understanding that despite prior correspondence from this office indicating that the Bollinger had filed for protection under chapter 13 of the bankruptcy code and that the lien of Resurgent Capital Services had been struck off under that bankruptcy, your office has chosen to proceed with the mortgage foreclosure in any event. We wanted to send one more formal writing prior to filing an adversarial complaint in the bankruptcy court requesting damages for violation of the discharge injunction. You had contacted our office to indicate that it was your position that an order to strip off the lien, the proper proceeding would have been through an adversarial action. Be advised, however, in the Middle District of Pennsylvania, lien stripping is permitted by confirmation of the plan we want to draw your attention specifically to the matter of in re Dickey 293br360 (bankr. M.D Pa.,2003) in that case, Judge France indicated that, so long as there was proper notice in the plan, a chapter 13 sufficient to strip off the mortgage lien under the doctrine set forth in re McDonald. Also enclosed is an additional copy of the Chapter 13 bankruptcy plan, indicating that with Citi Financial's name in bold print to draw attention to the debtors' intention to strip off the whole unsecured lien under the terms of the plan itself. In light of the Dickey opinion and the clear language set forth in the debtors' chapter 13 plan, we are in formal request that your office withdrawal the judgement entered in the above-referenced matter. If you have any questions or concerns please feel free to contact my office. Very truly yours, GATES, HALBRUNER & HATCH, P.C. Matthew J. Eshelman, Esquire MEshelman@GatesLawFirm.com MJE:as Enclosures cc: Jamie & Nikki Bollinger oil I I ?QpfnT 1 LAW OFFICES OF Enclosures GATES, HALBRUNER & HATCH, P.C. cc: Linda Adams LOWELL R. GATES, LL. M. LL M. in Taxation Also Admitted to Massachusetts Bar MARK E. HALBRUNER CRAIG A. HATCH, CELA Certified as an Elder Law Attorney by the National Elder Laxv Foundation MATTHEW J. ESHELMAN Board Certified in Creditors' Rights Representation by the American Board of Certification CLIFTON R. GUISE Also Admitted to practice before the U.S. Patent & Trademark Office 1013 MUMMA ROAD • SUITE 100 • LEMOYNE, PENNSYLVANIA 17043 (717) 731-9600 FAX: (717) 731-9627 BRANCH OFFICE: 3 WEST MONUMENT SQUARE, SUITE 304 LEWISTOWN, PA 17044 (717) 248.6909 WEB SITE: www.GatesLawFirm.com CORRESPONDENCE ADDRESS: Lemoyne Office STACEY L. NACE Paralegal/Of lice Manager TRACI L SEPKOVIC Paralegal VALERIE LONG October 13, 2006 Paralegal Attn: Steven it. Eisenberg, Esquire Stern & Eisenberg LLP 261 Old York Road, Suite 410 Jenkintown, PA 19046 RE: Resurgent Capital Services, L.P. vs. Jamie L. Bollinger Mortgage Foreclosure of Cumberland County 06-1242 To Whom It May Concern: We represent Jamie and Nikki Bollinger with respect to the property located at 110 Cold Springs Road Carlisle, PA 17013. Your office appears to be proceeding with a mortgage foreclosure in the above-referenced matter. When the Bollingers received a notice of the filing of a foreclosure complaint, your office was notified that the Bollingers had filed for protection under Chapter 13 of the Bankruptcy Code and that the lien of the predecessor to Resurgent Capital Services, Citifinancial, had been struck off under that bankruptcy. Your office has chosen to proceed with the mortgage foreclosure in any event, apparently following the Eastern District's premise that only an adversarial proceeding could strip off a mortgage under MacDonald. We wanted to send one more formal writing, confirming the practice in the Middle District, before we are obligated to file an action of our own, requesting damages and/or attorneys fees for violation of the discharge injunction. Be advised that, in the Middle District of Pennsylvania, lien stripping is permitted by confirmation of the plan. We draw your attention specifically to the matter of In re Dickey 293 B.R. 360 (Bankr. M.D. Pa., 2003) (notably, issued about a year and a half after the filing of the BoIlinger's plan). A copy of the case is enclosed for your convenience. In In re Dickey, Judge France (who would hear this matter should we be required to enforce the discharge injunction) indicated that, so long as there was proper notice in the plan, plan confirmation alone is sufficient to strip off a mortgage lien under the doctrine set forth in in re McDonald. While she indicated her understandable preference for adversarial proceedings as the better method to strip off a lien, she also clearly indicated that she would uphold the language of a confirmed plan as controlling the debtor/creditor relationship. The Boilinger's plan is just such a case. Enclosed is a copy of tileir Chapter 13 10=1k-ruptcy plan, indicating - with Citifinancial's name in bold print on the front page under the heading Summary of the Plan, in order to draw attention to the Debtors' intention - that the Plan purported to strip off t he wholly unsecured home equity lien. On the second page, it not only restates the Debtors' intention in greater detail, it states the reasons therefor. And, on the third page, it further indicates that the lien of Citifinaneial would be avoided "by confirmation of the plan." In light of the Dickey opinion and the clear language set forth in the Debtors' Chapter 13 Plan, we again formally request that your office promptly withdraw the judgment entered in the above-referenced matter. If you have any questions or concerns please feel free to contact my office. Very,trul yours, GATES', ALB LINER & HATCH, P.C. Matthew J. Eshelman, Esquire M. Eshelman@GatesLawFirm. com i.;JE:as Enclosures cc: Jamie & Nikki Bollinger (w/encl.) Page 1 of 2 Matthew J. Eshelman From: <PAMB_LiveDB@pamb.uscourts.gov> To: <PAMB Live D B@pa mb. uscou rts. gov> Sent: Wednesday, December 06, 2006 4:15 PM Subject: Ch-13 1:01-bk-05205-MDF Proceeding Memo-Jamie L Bollinger ***NOTE TO PUBLIC ACCESS USERS*** You may view the filed documents once without charge. To avoid later charges, download a copy of each document during this first viewing. U.S. Bankruptcy Court Middle District of Pennsylvania Notice of Electronic Filing The following transaction was received from JG entered on 12/6/2006 at 4:15 PM EST and filed on 12/6/2006 Case Name: Jamie L Bollinger and Nikki S Bollinger Case Number: 1:01-bk-05205-MDF WARNING: CASE CLOSED on 09/29/2005 Document Number: 37 Docket Text: Proceeding Memo re: phone conference; held. Record Made. Motion to Reopen Case granted. Court to sign order enjoining sheriff's sale for ninety (90) days. Parties to file Stipulation of Facts and Briefs within thirty (30) days. Appearances: Matthew Eshelman and Steven Eisenberg. Non-Appearances:. (There is no image or paper document associated with this entry.) (RE: related document(s)[34], [36], [35] ). (JG) The following document(s) are associated with this transaction: 1:01-bk-05205-MDF Notice will be electronically mailed to: Charles J. DeHart, III (Trustee) dehartstaff@ramapo.com, dcook@ramapo.com;harrisburgecf@ramapo.com Matthew J Eshelman m.eshelman@gateslawfirm.com, a.sampson@gateslawfirm.com United States Trustee ustpregion03.ha.ecf@usdoj.gov 1:01-bk-05205-MDF Notice will not be electronically mailed to: Ecast Settlement Corporation P.O. Box 35480 Newark, NJ 07193-5480 Matthew J. Eshelman Law Offices of Patrick J. Lauer, Jr 1/15/2007 RICHARD F. STERN, ESQUIRE (03315) STEVEN K. EISENBERG, ESQUIRE (75736) BRADLEY D. SISLEY, ESQUIRE STERN AND EISENBERG, LLP THE PAVILION 261 OLD YORK ROAD, SUITE 410 JENKINTOWN, PENNSYLVANIA 19046 TELEPHONE: (215) 572-8111 FACSIMILE: (215) 572-5025 (COUNSEL FOR PLAINTIFF) IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA FOR CUMBERLAND COUNTY Resurgent Capital Services, L.P. V. Jamie L. Bollinger and John/Jane Doe Defendant(s) Civil Action Number: 2007-2148 civ Action in Ejectment Response to New Matter and Counterclaims RESPONSE TO NEW MATTER AND COUNTERCLAIMS AND NOW, Resurgent Capital Services, LP (Hereinafter referred to as "Resurgent") hereby responds to the New Matter and Counterclaims of the Defendants and in response thereto avers: 9. The allegations of the Complaint are hereby incorporated by reference as though set forth at length herein. 10. Denied as stated. The docket for the Bankruptcy Case is attached hereto as Exhibit "C" in its entirety rather than in selected portions as done by Defendants. 11. Denied as stated. The Bankruptcy record speaks for itself. 12. Denied. Pursuant to the Debtor's Plan, the Debtors were going to take action to challenge the validity of the lien. No such action was ever taken. Further denied as the attempt to raise such an issue in a State Court proceeding violates the Rooker-Feldman Doctrine, see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). 13. Denied. The mortgage was unaffected by the Bankruptcy and Debtors failed to take any action to challenge the mortgage. In fact, in December 2006, Defendants sought relief from the Bankruptcy Court and received a 90-day reprieve/adjournment of the Sheriff J:1StevenlAnswers to Counterclaims\resurgent-bollinger cumberland 4-07 response to count.doc Sale. Thereafter, the Defendants to no further action before the Bankruptcy Court and no further adjournments were sought or granted in any Court. 14. Denied. The confirmation of the plan had no effect on the mortgage in question. 15. Denied. Said allegation is a conclusion of law to which no response is required. Further denied see 11 USC 1328(a)(1). Further denied as the mortgage and right to foreclosure remained unaffected. 16. Denied. See response to paragraph 15. Further, Defendants offer no explanation as to the fact that the Bankruptcy Court has not reach such a conclusion. 17. Denied as stated. Defendants have failed to paint a true picture by failing to provide correspondence between the parties. Regardless, the issues raised before the Bankruptcy Court resulted in a 90 day stay of proceedings, nothing more. It is not for the State Court to decide the propriety of the Bankruptcy Court actions which allowed the Sheriff Sale to proceed and which sheriff sale was not challenged. The recordation of the deed forecloses any such challenges. 18. Denied. See response to 17 above. 19. Denied. See response to 17 above. 20. Denied. See response to 17 above. Further denied as the motion has not been attached in violation of the Pennsylvania Rules of Civil Procedure rule 1019(i). 21. Denied. Any settlement negotiations are immaterial to the instant matter and further, are not admissible. Further denied for the reasons stated in response to 17, above. 22. Denied as stated. The record speaks for itself. Further denied as the Defendants' request for relief was denied and the sale only adjourned 90 days. 23. Denied as stated. Defendants have not attached a copy of their motion, although they reference it in their new matter. The Defendants' motion was NOT granted as requested, but they were given some time to try to rectify the matter and satisfy the claim prior to a sheriff sale. The memo, which is the last entry in the docket of the Bankruptcy matter is clear that the sale was only pushed back in time, not stopped. 24. Denied. Said allegation is a conclusion of law to which no response is required. There is no automatic stay. Further, the attempt by Defendants' Counsel to confuse the matter in hopes of delaying the ejectment proceeding should be refused by the Court of Common Pleas. J:\Steven\Answers to Counterclaims\resurgent-bollinger cumberland 4-07 response to count.doc NEW MATTER 25. No response required. All responses to the previous allegations are hereby incorporated by reference. 26. Denied. Said allegation is a conclusion of law to which no response is required. Further denied as the Plaintiff is the legal owner of the real property and is entitled to possession regardless of any prior bankruptcy. 27. Denied. Said allegation is a conclusion of law to which no response is required. Further denied as there is no other litigation regarding ejectment. The half presentation of the Bankruptcy Proceeding is an attempt to mislead the Court. 28. Denied. Said allegation is a conclusion of law to which no response is required. Further denied as there is no other litigation regarding ejectment. To the contrary, the Bankruptcy Court by its order only delaying the sale, clearly rejected the position of the Defendants. COUNTERCLAIM 29. No response required. All responses to the previous allegations are hereby incorporated by reference. 30. Denied. Said allegation is a conclusion of law to which no response is required. Further denied as the request is in violation of PaRCP 3132 in that the Sheriff Deed has already been delivered. 31. Denied. Said allegation is a conclusion of law to which no response is required. Further denied as the attempt to collaterally attack the validly conducted sheriff sale is wholly inappropriate. 32. Denied. Said allegation is a conclusion of law to which no response is required. Further denied as the attempt to collaterally attack the validly conducted sheriff sale is wholly inappropriate. 33. Denied. Said allegation is a conclusion of law to which no response is required. Further denied as the attempt to collaterally attack the validly conducted sheriff sale is wholly inappropriate. 34. Denied. Said allegation is a conclusion of law to which no response is required. Further denied as the issue is not properly before this Court. NEW MATTER TO NEW MATTER AND COUNTERCLAIMS 35. The Counterclaim fails to state a cause of action against the Plaintiff. J:\Steven\Answers to Counterclaims\resurgent-bollinger cumberland 4-07 response to count.doc 36. Defendant's claims are barred, in whole or in part, by the doctrine of laches. 37. The relief sought is not authorized under the law. 38. The action is barred by the doctrine of waiver. 39. The claims are the result of Defendant's own conduct. 40. Defendant has failed to mitigate any damages. 41. The claim is barred by the Defendant's negligence. 42. The claims are barred by the doctrine of Res Judicata. 43. The claims are barred by the Rooker-Feldman Doctrine. 44. The claims are barred pursuant to PaRCP 3132. 45. The claim is an inappropriate collateral attack on the sheriff sale after the delivery of the deed. WHEREFORE, Plaintiff, Resurgent Capital Services, L.P., demands that a Judgment in Ejectment be entered in its favor and against the Defendant(s). BY: STERN AND EMNBERG, LLP STEVEN K. EISEM?ERG, ESQUIRE Attorney for Plaintiff JASteven\Answers to Counterclaims\resurgent-bollinger cumberland 4-07 response to count.doc USBC PAM - LIVE - VERSION 3.1.41, - Docket Report Page 1 of 5 CREDS, 2002, 341Held, P1nCnfrmd, CLOSED, PreACT, FeeDueReop U.S. Bankruptcy Court Middle District of Pennsylvania (Harrisburg) Bankruptcy Petition #: 1:01-bk-05205-MDF Assigned to: Mary D France Chapter 13 Voluntary Asset Date Filed: 09/26/2001 Date Terminated: 09/29/2005 Date Discharged: 09/22/2005 Debtor Jamie L Bollinger 110 COLD SPRINGS ROAD CARLISLE, PA 17013 SSN: xxx-xx-5500 represented by Matthew J Eshelman P.O. Box 1080 Camp Hill, PA 17001-1080 717-395-8503 Fax : 717-763-1389 Email: m.eshelman@hotmail.com Matthew J. Eshelman Law Offices of Patrick J. Lauer, Jr 2108 MARKET STREET CAMP HILL, PA 17011 717 763-1800 Joint Debtor Nikki S Bollinger 110 COLD SPRINGS ROAD CARLISLE, PA 17013 SSN: xxx-xx-7216 aka Nikki Peck represented by Matthew J Eshelman (See above for address) Matthew J. Eshelman (See above for address) Trustee Charles J. DeHart, III (Trustee) 8125 Adams Drive, Suite A Hummelstown, PA 17036 717 566-6097 Asst. U.S. Trustee United States Trustee PO Box 969 Harrisburg, PA 17108 717 221-4515 https://ecf.pamb.uscourts.gov/cgi-bin/DktRpt.pl?233890320058003-L_889_0-1 5/29/2007 USBC PAM - LIVE - VERSION 3.1.41, - Docket Report Page 2 of 5 09/26/2001 1 VOLUNTARY PETITION under Chapter 13, Matrix, all Schedules & Statements, Plan and Summary, [CA], ORIGINAL NIBS DOCKET ENTRY #1 (Entered: 09/26/2001) 09/26/2001 2 MOTION FOR ORDER TO PAY TRUSTEE WITH CONSENT OF DEBTOR [Disposed], [SP], ORIGINAL NIBS DOCKET ENTRY #2 (Entered: 09/27/2001) 09/26/2001 3 DEBTOR[S] affidavit of disbursement of Trustee funds upon Dismissal and/or Conversion prior to confirmation. , [SP], ORIGINAL NIBS DOCKET ENTRY #2A (Entered: 09/27/2001) 09/27/2001 4 ORDER to pay trustee. Re: Item # 2, [SP], ORIGINAL NIBS DOCKET ENTRY #3 (Entered: 09/27/2001) 10/18/2001 5 CERTIFICATE of Mailing of Notice of 341 Meeting. Objections to the plan are due 15 days after meeting held. , [CA], ORIGINAL NIBS DOCKET ENTRY #4 (Entered: 10/18/2001) 11/20/2001 6 341 meeting held., [CA], ORIGINAL NIBS DOCKET ENTRY #5 (Entered: 11/20/2001) 12/06/2001 7 ORDER Confirming Plan, [SP], ORIGINAL NIBS DOCKET ENTRY #6 (Entered: 12/06/2001) 02/21/2002 8 FINAL REPORT of Trustee in No Asset Case [Entered: 02/21/02], [BR] ENTERED IN ERROR INCORRECT CASE NUMBER, [SP], ORIGINAL NIBS DOCKET ENTRY #7 (Entered: 10/03/2002) 07/09/2002 9 TRANSFER [ASSIGNMENT] of claim #6 of B-LINE LLC in the amount of $464.80 to B-FIRST, LLC. [Waiver of Notice] , [SP], ORIGINAL NIBS DOCKET ENTRY #8 (Entered: 07/09/2002) 07/24/2002 10 ENTRY OF APPEARANCE of STEVEN P. MINER, ESQUIRE of Metzger Wickersham Knauss & Erb PC on behalf of FIRST MERIT BANK, NA, successor by merger to Signal Bank, [SP], ORIGINAL NIBS DOCKET ENTRY #9 (Entered: 07/24/2002) 07/24/2002 11 MOTION for relief from stay filed by FIRST MERIT BANK, NA. [Pd., $75.00, Rec.#584790] [Disposed] [Entered: 07/24/02], [SP] CERTIFICATE OF NON-CONCURRENCE [Entered: 07/24/02], [SP] MOTION for relief from stay filed by FIRST MERIT BANK, NA [Disposed], [SP], ORIGINAL NIBS DOCKET ENTRY #10 (Entered: 08/26/2002) https://ecf.pamb.uscourts.gov/cgi-bin/DktRpt.pl?233890320058003-L 889 0-1 5/29/2007 USBC PAM - LIVE - VERSION 3.1.4L - Docket Report Page 3 of 5 07/24/2002 12 ORDER that answers are due on 08/13/02 Re: Item # 11, [SP], ORIGINAL NIBS DOCKET ENTRY #11 (Entered: 07/24/2002) 07/30/2002 13 CERTIFICATE of service Re: Item # 12, [SP], ORIGINAL NIBS DOCKET ENTRY #12 (Entered: 07/30/2002) 08/23/2002 16 ANSWER by DEBTORS Re: Item # 11, [SP], ORIGINAL NIBS DOCKET ENTRY # 15 (Entered: 08/26/2002) 08/26/2002 14 MOTION for default judgment Re: Item # 11 [Disposed], [JR], ORIGINAL NIBS DOCKET ENTRY #13 (Entered: 08/26/2002) 08/26/2002 15 ORDER granting default judgment Re: Item # 14 [Entered: 08/26/02], [JR] ORDER granting relief from stay Re: Item # 11 [Entered: 08/26/02], [JR] ENTERED IN ERROR [Answer filed, Attorney notified], [SP], ORIGINAL NIBS DOCKET ENTRY #14 (Entered: 08/26/2002) 09/04/2002 17 CORRESPONDENCE SETTING Preliminary phone conference on 10/02/02 at 10:30 A.M. at Federal Building, Bankruptcy Courtroom [3rd Floor], Third & Walnut Streets, Harrisburg, PA 17101 Re: Item # 16, [SP], ORIGINAL NIBS DOCKET ENTRY #16 (Entered: 09/04/2002) 10/02/2002 18 PROCEEDING MEMO: phone conference held - order lifting stay to be entered. Re: Item # 11, [CL], ORIGINAL NIBS DOCKET ENTRY #17 (Entered: 10/02/2002) 10/03/2002 19 ORDER granting relief from stay Re: Item # 11, [SP], ORIGINAL NIBS DOCKET ENTRY #18 (Entered: 10/03/2002) 02/13/2003 20 MOTION TO DISMISS BY TRUSTEE WITH NOTICE SETTING HEARING on 03/13/03 at 02:00 P.M. at Federal Building, Bankruptcy Courtroom [3rd Floor], Third & Walnut Streets, Harrisburg, PA 17101, [SP], ORIGINAL NIBS DOCKET ENTRY #19 (Entered: 02/13/2003) 03/19/2003 21 STIPULATION by Parties. Amended Plan due within thirty 30 days. Re: Item # 20, [SP], ORIGINAL NIBS DOCKET ENTRY #20 (Entered: 03/19/2003) 03/19/2003 22 APPROVED by the court. Re: Item # 21, [SP], ORIGINAL NIBS DOCKET ENTRY #21 (Entered: 03/19/2003) 04/07/2003 23 MOTION to Modify Plan by DEBTORS Re: Item # 7, [SP], ORIGINAL NIBS DOCKET ENTRY #22 (Entered: 04/08/2003) https://ecf.pamb.uscourts.gov/cgi-bin/DktRpt.pl?233890320058003-L 889 0-1 5/29/2007 USBC PAM - LIVE - VERSION 3.1.41, - Docket Report Page 4 of 5 04/07/2003 24 Amended Ch. 13 Plan [Requested Proof of Service] Re: Item # 1, [SP], ORIGINAL NIBS DOCKET ENTRY #23 (Entered: 04/08/2003) 04/14/2003 25 CERTIFICATE OF MAILING RE: NOTICE ON CHAPTER 13 PLAN AMENDMENT OBJECTIONS due on 05/01/03 Re: Item # 24, [CR], ORIGINAL NIBS DOCKET ENTRY #24 (Entered: 04/15/2003) 05/08/2003 26 Order Granting Motion To Modify Plan (RE: related document(s) 23 ). (Pearlman, Susan) (Entered: 05/08/2003) 06/09/2003 27 Transfer (Assignment) of Claim and waiver of opportunity to object Transfer Agreement 3001 (e) 2 Transferors:First Consumers National Bank(Claim No. 5, Amount 215.94) To Ecast Settlement Corporation Filed by Ecast Settlement Corporation. (Pearlman, Susan) (Entered: 06/30/2003) 06/07/2004 28 Transfer (Assignment) of Claim and waiver of opportunity to object Transfer Agreement 3001 (e) 2 Transferors:Beneficial(Claim No. 1, Amount 4189.67) To Ecast Settlement Corporation Filed by Ecast Settlement Corporation. (SP) (Entered: 06/07/2004) 09/21/2005 29 Final Report Final Report Filed by Trustee. (dehart, III(ck), Charles) (Entered: 09/21/2005) 09/22/2005 30 Request to BNC - Discharge of Debtor(s) entered on 9/22/2005 (SP) (Entered: 09/22/2005) 09/24/2005 31 BNC Certificate of Mailing of Discharge (Chapter 13) (RE: related document(s)30 ). Service Date 09/24/2005. (Admin.) (Entered: 09/25/2005) 09/29/2005 32 Request to BNC - Final Decree (SP) (Entered: 09/29/2005) 10/01/2005 33 BNC Certificate of Mailing of Final Decree (RE: related document(s) 32 ). Service Date 10/01/2005. (Admin.) (Entered: 10/02/2005) 12/05/2006 34 Motion to Reopen Chapter 13 Case to file Adversary Action to Preserve Discharge Injunction. Filing fee due in the amount of $ 150.00 Filed by Matthew J Eshelman of Gates Halbruner & Hatch on behalf of Jamie L Bollinger, Nikki S Bollinger (RE: related document (s)32 ). (Attachments: # 1 Certificate of Service # 2 Exhibit re Concurrence Sought# 3 Proposed Order) (Eshelman, Matthew) (Entered: 12/05/2006) 12/05/2006 35 Motion for Expedited Consideration Filed by Matthew J Eshelman of https://ecf.pamb.uscourts.gov/cgi-bin/DktRpt.pl?233 89032005 8003 -L_889_0-1 5/29/2007 L SBC PAM - LIVE - VERSION 3.1.41, - Docket Report Page 5 of 5 Gates Halbruner & Hatch on behalf of Jamie L Bollinger, Nikki S Bollinger (RE: related document(s)34 ). (Attachments: # 1 Exhibit re Concurrence Sought# 2 Certificate of Service) (Eshelman, Matthew) (Entered: 12/05/2006) 12/05/2006 36 Order (RE: related document(s)34, 35 ). Phone Conference to be held on 12/6/2006 at 09:30 AM at location (by telephone conference, Harrisburg, PA). (DD) (Entered: 12/05/2006) 12/06/2006 37 Proceeding Memo re: phone conference; held. Record Made. Motion to Reopen Case granted. Court to sign order enjoining sheriffs sale for ninety (90) days. Parties to file Stipulation of Facts and Briefs within thirty (30) days. Appearances: Matthew Eshelman and Steven Eisenberg. Non-Appearances:. (There is no image or paper document associated with this entry.) (RE: related document(s)34, 36, 35 ). (JG) (Entered: 12/06/2006) PACER Service Center Transaction Receipt 05/29/2007 13:51:52 PACER se0229 Client Login: lCode: Billable Cost: 0.24 Pages: I 11 1:01-bk-05205-MDF Fil or Ent: Docket Search filed Doc From: 0 Doc To: Description: Report Criteria: 99999999 Term: included Format: HTML https://ec£pamb.uscourts.govlcgi-bin/DktRpt.pl?233890320058003-1,_889_0-1 5/29/2007 C7 f-.Il Q 'tl Lz.; ?--- 1 c r M t F > 1 rI CD i rn RICHARD F. STERN, ESQUIRE (03315) STEVEN K. EISENBERG, ESQUIRE (75736) BRADLEY D. SISLEY, ESQUIRE STERN AND EISENBERG, LLP THE PAVILION 261 OLD YORK ROAD, SUITE 410 JENKINTOWN, PENNSYLVANIA 19046 TELEPHONE: (215) 572-8111 FACSIMILE: (215) 572-5025 (COUNSEL FOR PLAINTIFF) IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA FOR CUMBERLAND COUNTY Resurgent Capital Services, L.P. V. Jamie L. Bollinger and John/Jane Doe Defendant(s) Civil Action Number: 2007-2148 civ Action in Ejectment Response to New Matter and Counterclaims CERTIFICATE OF SERVICE I, Steven K. Eisenberg, Esquire, hereby certify that a true and correct copy of Plaintiff's Reply to defendant's New Matter and Counterclaims was mailed by first class, postage prepaid mail on May 30, 2007 to the following: Matthew J. Eshelman, Esquire P.O. Box 1080 Camp Hill, PA 17001 STERN AND EISENBERG BY:' Ste K. E' nberg, Attornev for Plaintiff DATE: 5/30/2007 J:\Steven\Answers to Counterclaims\resurgent-bollinger cumberland 4-07 response to count.doc ? o ?' -v c.._. ? s-+? s n-? c" •=? -e s ; _. 3 a r:;. [.. = ?s- ? ?f?.. ? ? ? i:: ?* ? N c? ? N SHERIFF'S RETURN - REGULAR CASE NO: 2007-02148 P • COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND RESURGENT CAPITAL SERVICES LP VS BOLLINGER JAMIE L ET AL RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EJECTMENT BOLLINGER JAMIE L the DEFENDANT , at 0906:00 HOURS, on the 19th day of April , 2007 at 110 COLD SPRINGS ROAD CARLISLE, PA 17013 NIKKI BOLLINGER, WIFE was served upon by handing to a true and attested copy of COMPLAINT - EJECTMENT together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00. Service 5.76 Affidavit .00 Surcharge 10.00 .00 33.76 1 44 0 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 04/19/2007 STERN & EISENBERG By: De uty Sheriff A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2007-02148 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND RESURGENT CAPITAL SERVICES LP VS BOLLINGER JAMIE L ET AL RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EJECTMENT was served upon DOE JOHN/JANE the DEFENDANT at 0906:00 HOURS, on the 19th day of April , 2007 at 110 COLD SPRINGS ROAD CARLISLE, PA 17013 by handing to NIKKI BOLLINGER, OCCUPANT a true and attested copy of COMPLAINT - EJECTMENT together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge Sworn and Subscibed to before me this of So Answers: 6.00 .00 .00 10.00 R. Thomas Kline .00 16.00, 04/19/2007 ?,ap d1 STERN & EISENBERl nK? By: day A. D. IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA FOR CUMBERLAND COUNTY RICHARD F. STERN, ESQUIRE (03315) STEVEN K. EISENBERG, ESQUIRE (75736) BRADLEY D. SISLEY, ESQUIRE STERN AND EISENBERG LLP THE PAVILION 261 OLD YORK ROAD, SUITE 410 JENKINTOWN, PENNSYLVANIA 19046 TELEPHONE: (215) 572-8111 FACSIMILE: (215) 572-5025 (COUNSEL FOR PLAINTIFF) Resurgent Capital Services, L.P. 15 S. Main Street 7tn Floor Greenville, SC 29601 Plaintiff VS. Jamie L. Bollinger and Nikki S. Bollinger 110 Cold Springs Road Carlisle, PA 17013 Defendants Civil Action Number: Z W-7- 2114 V MOTION FOR SUMMARY JUDGMENT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO PA.R.C.P. §1035.2 TO THE HONORABLE, THE JUDGES OF THE SAID COURT: The pleadings in this matter now being closed, Resurgent Capital Services, L.P. (hereinafter "Plaintiff'), by its attorneys, Stern and Eisenberg LLP, requests this Court to grant summary judgment in its favor for the following reasons: 1. In their Answer to Plaintiff s Civil Action - Ejectment (hereinafter "Complaint"), Defendants Jamie L. Bollinger and Nikki S. Bollinger (hereinafter "Defendants") fully admit paragraphs one, two, three and four, in part, five, six, and eight of Plaintiff s Complaint. As a result of the aforesaid admissions, the following material facts are undisputed: a. The identity and address of Plaintiff (Paragraph 1); b. The identity and address of Defendant Jamie L. Bollinger (Paragraph 2); c. That Jane Doe is Defendant's wife (Paragraph 3); d. That the property was sold at Sheriff's Sale on March 7, 2007; e. Plaintiff settled with the sheriff in a letter dated March 27, 2007 requesting a deed be prepared in the name of Plaintiff. A true and correct copy of the letter was attached to Plaintiff's Complaint (on April 12, 2007 the Sheriff's deed was recorded); f. A true and correct copy of the legal description of the Premises (hereinafter the "Premises") was attached to Plaintiff's Complaint; and g. Defendants are presently in possession of the premises. 2. In paragraph three of their Answer, Defendants aver that John/Jane Doe is not an unknown individual who resides at 110 Cold Springs Road, Carlisle, PA 17013. Defendant admits that his wife is the unknown adult individual residing with him at the property. 3. In paragraph four of their Answer, Defendants admit that the Premises was exposed to Sheriff's Sale on March 7, 2007. Defendant denies that the Premises was sold at Sheriff s Sale in accordance with law and the Pennsylvania Rules of Civil Procedure. Defendants provide no evidence to support their allegations. It is unquestionable that the Premises was sold on March 7, 2007 by the Sheriff of Cumberland County after due advertisement according to law. Defendant fails to support his allegations with facts and therefore, his denial poses no bar to summary judgment in Plaintiff s favor. 4. In paragraph seven of their Answer, Defendants deny that Plaintiff is entitled to possession of the premises. To the contrary, Plaintiff purchased the Premises at the March 7, 2007 Sheriff s Sale and a deed has been prepared conveying the same. Said deed has been conveyed to Plaintiff and recorded on or about April 12, 2007. Defendants have no legal ownership and are not entitled to possession. Plaintiff has title to the Premises and, as a matter of law, is entitled to possession. 5. Defendants did not challenge the validity of the March 7, 2007 Sheriff s Sale. 6. Plaintiff filed a Civil Action in Ejectment (hereinafter "Complaint") on or about April 16, 2007, four days after the Sheriff s Deed was recorded. Plaintiff s Civil Action in Ejectment as well as the Sheriff's Deed are hereby incorporated by reference herein pursuant to Pennsylvania Rules of Civil Procedure No. 1019(g). 7. Defendants through counsel filed an Answer with New Matter and Counterclaim on or about May 21, 2007. 8. Defendants' New Matter, Counterclaims and Affirmative Defenses set forth general conclusions of law with regard to their attempt to further delay the ejectment action. Notwithstanding, the Defendants' New Matter and Affirmative Defenses do not present a bar to the entry of Summary Judgment in Plaintiff's favor. 9. Plaintiff's Complaint established three elements in support of its claim for ejectment, as follows: (1) ownership and right to immediate possession; (2) Defendants' wrongful possession; and (3) the request for relief. 10. To the contrary, Defendants' Counterclaim essentially asks this Court to collaterally reverse a completed Sheriff's Sale after the Federal Bankruptcy Court denied the request on the same basis already presented. 11. Further, the relief would be to ignore the finality sought under Pa.R.C.P. § 3132 in that the Sheriff Deed has already been delivered and time for challenge has passed. Not to mention the sheriff sale, itself, is not at issue. 12. Defendants' Counterclaim requests damages under the Federal Fair Debt Collection Practices Act, Pennsylvania's Unfair Trade Practices and Consumer Protection Law, and Section 1983 of the Civil Rights Act for unlawful deprivation of property rights under color of state law are simply without merit nor supported by the record in which there is a recorded sheriff s deed and a Bankruptcy Court denial of the Defendants' relief. These requests demanding damages are wholly inappropriate as an attempt to collaterally attack the validly conducted sheriff sale. 13. Defendants' Counterclaim requests damages under Sections 362 and 1328 of the United States Bankruptcy Code. As the Court can see, the Bankruptcy Court did not take interest in such issues, nor should this Court. 14. Defendants failed to take any action to challenge the mortgage within the 90-day reprieve/adjournment of the Sheriff Sale granted by the Bankruptcy Court on December 6, 2006. Since the Sheriff Sale was not challenged it proceeded and the Sheriff s deed was then recorded which now forecloses any such challenges. 15. Reopening Defendants' bankruptcy case via 11 U.S.C. § 350 is irrelevant and Defendants' claim that there is any stay is incorrect as 11 U.S.C. § 362(c) provides that the stay terminates when the property is no longer property of the estate which occurred at confirmation (11 U.S.C. § 362(c)(1)) and any other stay terminates at discharge (11 U.S.C. § 362(c)(2)(C)). 16. The Sheriff s deed was recorded April 12, 2007, a copy of which is attached as Exhibit "A", 17. Attached as Exhibit "B" is the affidavit of Steven K. Eisenberg, attorney for Resurgent Capital Services, L.P. 18. The docket for the Defendants' Bankruptcy Petition #: 1:01-bk-05205-MDF, U.S. Bankruptcy Court- Middle District of Pennsylvania (Harrisburg) is attached hereto as Exhibit "C". 19. The pleadings and exhibits establish that there are no genuine issues as to any material facts and that Plaintiff is entitled to judgment as a matter of law. 20. Defendants have failed to present a valid defense to this action. WHEREFORE, Plaintiff Resurgent Capital Services, L.P. requests this Court to enter summary judgment for ejectment in its favor and against Defendants, Jamie Bollinger and Nikki S. Bollinger for possession of premises 110 Cold Springs Road, Carlisle, PA 17013. Respectfully submitted, STERWE G, LL P BY: _ S VEN K. EISENBER , Attorney for Plaintiff 1 ? 1 ?Q,. CORRECTIVE DEED: Filed to correct the grantee's name wi E5 Tax Parcel No. 08-32-2326-015 Know all Men by these Presents 1007 UR 12 An 10 04 That I, R. Thomas Kline, Sheriff of the County of Cumberland, In the State of Pennsylvania, for and in consideration of the sum of $1.00, (One Dollar), to me in hand paid, do hereby grant and convey to Resurgent Capital Services, L.P. REAL ESTATE SALE #51 Writ No. 2006-1242 Civil Term Resurgent Capital Services, L.P. Vs. Jamie L. Bollinger Atty: Steven Eisenberg ALL THAT CERTAIN lot or parcel of ground situate in the Township of Dickinson, County of Cumberland, and State of Pennsylvania, bounded and described in accordance with survey made by John R. Williams, Professional Land Surveyor, a draft of which dated August 18, 1997, is attached hereto and incorporated herein by reference, as follows: Beginning at a set steel pin on the eastern line of 33 feet wide Township Road T-356 known as Cold Spring Road at corner of land now or formerly of Harold R. Rice; thence from said set steel pin at the place of beginning along said eastern line of 33 feet wide Cold Spring Road, South 23 degrees 26 minutes 40 seconds West a distance of 100.00 feet to a steel pin in concrete; thence crossing said Cold Spring Road and continuing along line of land formerly of Luther Nogle and now or formerly of Ray A. Bear, North 63 degrees 50 minutes 00 seconds West a distance of 316.75 feet to a three (3) feet high pipe in line of other land of Ray A. Bear; thence along line of said other land of Ray A. Bear which was formerly of Earl Raudabaugh and later of George Bear, North 18 degrees 34 minutes 00 seconds East a distance of 89.70 feet to a three feet high pipe at corner common to said land of George Bear and land of John C. Walters and land n0y of Harold R. Rice; thence along line of said land now of Harold R: Rice which was formerly of James G. Heiser, South 65 degrees 46 minutes 27 seconds East a distance of 324.05 feet, crossing said Cold Spring Road at a set steel pin at the place of beginning. The above described lot of ground has thereon erected a one-story dwelling house and has a mailing address of 110 Cold Spring Road, Carlisle, Pennsylvania 17013. Parcel #: 08-32-2326-015 Being the same premises which M. Corinne Otto, Executrix of the Last Will and Testament of Mary A. Myers, deceased, and joined by Dean W. Otto and Martha J. Otto, husband and wife, and joined by M. Corrine Otto, in her individual capacity, and David H. Myers, Jr., and Pearl'I. Gitt, by Deed dated January 13, 1999, and recorded January 19, 1999, in Book 192, page 1017, as Instrument No. 1999-001765, man ed and conveyed unto Jamie L. Bollinger, in fee. 9Qo 279 f,?E.: "r'79 The same having been sold by me to the said grantee on the 7th day of March Anno Domini Two Thousand and Seven 2( 007) after due advertisement according to lava, under and by Virtue of a Writ of Execution issued on the 15th day of June Anno Domini 2006 out of the Court of Common Pleas of Cumberland County, Pennsylvania, as of Civil Term, Two Thousand and Sig 2006 Number 1242 at the suit of Resurgent Capital Services L.P. against Jamie Bollinger. 86aK 12>9 P,9Gf'*(""780 In Witness Wereof, I have hereunto affixed my signature this 11 th day of Apri l Anno Domini Two Thousand and Seven (2007) Thomas Kli , Sheriff Commonwealth of Pennsylvania, ss. County of Cumberland Before the undersigned, Curtis R. Long, Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, personally appeared R. Thomas Kline, Sheriff of Cumberland County aforesaid, and in due form of law declared that the facts Set forth in the foregoing Deed are true, and that he acknowledged the same in order that Said deed might be recorded. Witness my hand and seal of said Court, this 11 tKlay of April Anno Domini Two Thousand and Seven (2007) x sw y 'f Jk i J? :P?. 1 J c? CARLISLE CUMOBERLAND COUNTY URnjM MY COMMISSION EXPIRES JANUARY 4.2010 And Post Office address of the Within Grantee is 15 South Main St., 6th Floor Greenville, SC 29601 Solicitor I f:r t1is toe rec®rded ?serlarnd County PA -? D <,,..F of Deeds l uGOF fur ?,'xEa2...78i IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA FOR CUMBERLAND COUNTY RICHARD F. STERN, ESQUIRE (03315) STEVEN K. EISENBERG, ESQUIRE (75736) BRADLEY D. SISLEY, ESQUIRE STERN AND EISENBERG LLP THE PAVILION 261 OLD YORK ROAD, SUITE 410 JENKINTOWN, PENNSYLVANIA 19046 TELEPHONE: (215) 572-8111 FACSIMILE: (215) 572-5025 (COUNSEL FOR PLAINTIFF) Resurgent Capital Services, L.P. 15 S. Main Street 7th Floor Greenville, SC 29601 Plaintiff Civil Action Number: 21X "). ;z 14 1, vs. Jamie L. Bollinger and Nikki S. Bollinger 110 Cold Springs Road Carlisle, PA 17013 Defendants MOTION FOR SUMMARY JUDGMENT AFFIDAVIT OF STEVEN K. EISENBERG IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT I, f??"` 1 ???'?/ , being duly sworn according to law, depose and say: 1. I am the attorney for Resurgent Capital Services, L.P., the above named Plaintiff. I have personal knowledge of the matters hereinafter referred to and have the authority to make this Affidavit in Support of Plaintiffs Motion for Summary Judgment. 2. Resurgent Capital Services, L.P., has offices located at 15 S. Main Street, 71h Floor, Greenville, SC 29601. 3. On March 7, 2007, Plaintiff, through this office, as attorney on the writ, was the successful bidder and purchased the premises known as 110 Cold Springs Road, Carlisle, PA 17013 at Sheri according to law and under and by virtue of a Writ of Execution issued out of the Court of Common Pleas of Cumberland County, No. 2006 CV 1242 at the suit of Resurgent Capital Services, L.P. v. Jamie L. Bollinger. 4. Thereafter, Plaintiff settled with the Sheriff of Cumberland County and a deed was issued and delivered to Plaintiff conveying the Premises to Plaintiff. 5. By virtue of the Sheriff's Sale and the Sheriff's deed, Plaintiff is the owner of the premises and is therefore entitled to possession of the same. 6. Defendants' new matter presents no defense to the underlying action. 7. Defendants' counterclaim is meritless. 8. There is no genuine issue of material fact in this matter and trial of this case would be an undue expense and burden to Plaintiff. ON BEHALF FF BY. Sworn to anj?jubs?pbed before me this_,27 day od 9 2007. COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Public DIANE J. TURANO, Notary Pub Jankintown Boro., Mont omery?n? USBC PAM - LIVE - VERSION 3.1.4L - Docket Report Page 1 of 5 CREDS, 2002, 341Held, P1nCnfrmd, CLOSED, PreACT, FeeDueReop U.S. Bankruptcy Court Middle District of Pennsylvania (Harrisburg) Bankruptcy Petition #: 1:01-bk-05205-MDF Assigned to: Mary D France Chapter 13 Voluntary Asset Debtor Jamie L Bollinger 110 COLD SPRINGS ROAD CARLISLE, PA 17013 SSN: xxx-xx-5500 Joint Debtor Nikki S Bollinger 110 COLD SPRINGS ROAD CARLISLE, PA 17013 SSN: xxx-xx-7216 aka Nikki Peck Trustee Charles J. DeHart, III (Trustee) 8125 Adams Drive, Suite A Hummelstown, PA 17036 717 566-6097 Asst. U .S. Trustee United States Trustee PO Box 969 Harrisburg, PA 17108 717 221-4515 Filing Date I # Date Filed: 09/26/2001 Date Terminated: 09/29/2005 Date Discharged: 09/22/2005 represented by Matthew J Eshelman P.O. Box 1080 Camp Hill, PA 17001-1080 717-395-8503 Fax : 717-763-1389 Email: m.eshelman@hotmail.com Matthew J. Eshelman Law Offices of Patrick J. Lauer, Jr 2108 MARKET STREET CAMP HILL, PA 17011 717 763-1800 represented by Matthew J Eshelman (See above for address) Docket Text 09/26/2001 1 1 VOLUNTARY PETITION under Chapter 13, https://ecf pamb.uscourts.gov/cgi-bin/DktRpt.pl?809128957647615-L_889_0- Matthew J. Eshelman (See above for address) Statements, 7/27/2007 USBC PAM - LIVE - VERSION 3.1.4L - Docket Report Page 2 of 5 Plan and Summary, [CA], ORIGINAL NIBS DOCKET ENTRY 41 (Entered: 09/26/2001) 09/26/2001 2 MOTION FOR ORDER TO PAY TRUSTEE WITH CONSENT OF DEBTOR [Disposed], [SP], ORIGINAL NIBS DOCKET ENTRY 42 (Entered: 09/27/2001) 09/26/2001 3 DEBTOR[S] affidavit of disbursement of Trustee funds upon Dismissal and/or Conversion prior to confirmation. , [SP], ORIGINAL NIBS DOCKET ENTRY #2A (Entered: 09/27/2001) 09/27/2001 4 ORDER to pay trustee. Re: Item # 2, [SP], ORIGINAL NIBS DOCKET ENTRY #3 (Entered: 09/27/2001) 10/18/2001 5 CERTIFICATE of Mailing of Notice of 341 Meeting. Objections to the plan are due 15 days after meeting held., [CA], ORIGINAL NIBS DOCKET ENTRY #4 (Entered: 10/18/2001) 11/20/2001 6 341 meeting held., [CA], ORIGINAL NIBS DOCKET ENTRY 45 (Entered: 11/20/2001) 12/06/2001 7 ORDER Confirming Plan, [SP], ORIGINAL NIBS DOCKET ENTRY #6 (Entered: 12/06/2001) 02/21/2002 8 FINAL REPORT of Trustee in No Asset Case [Entered: 02/21/02], [BR] ENTERED IN ERROR INCORRECT CASE NUMBER, [SP], ORIGINAL NIBS DOCKET ENTRY #7 (Entered: 10/03/2002) 07/09/2002 9 TRANSFER [ASSIGNMENT] of claim #6 of B-LINE LLC in the amount of $464.80 to B-FIRST, LLC. [Waiver of Notice], [SP], ORIGINAL NIBS DOCKET ENTRY #8 (Entered: 07/09/2002) 07/24/2002 10 ENTRY OF APPEARANCE of STEVEN P. MINER, ESQUIRE of Metzger Wickersham Knauss & Erb PC on behalf of FIRST MERIT BANK, NA, successor by merger to Signal Bank, [SP], ORIGINAL NIBS DOCKET ENTRY #9 (Entered: 07/24/2002) 07/24/2002 11 MOTION for relief from stay filed by FIRST MERIT BANK, NA. [Pd., $75.00, Rec.#584790] [Disposed] [Entered: 07/24/02], [SP] CERTIFICATE OF NON-CONCURRENCE [Entered: 07/24/02], [SP] MOTION for relief from stay filed by FIRST MERIT BANK, NA [Disposed], [SP], ORIGINAL NIBS DOCKET ENTRY #10 (Entered: 08/26/2002) 07/24/2002 12 ORDER that answers are due on 08/13/02 Re: Item # 11, [SP], ORIGINAL NIBS DOCKET ENTRY #11 (Entered: 07/24/2002) 07/30/2002 13 CERTIFICATE of service Re: Item # 12, [SP], ORIGINAL NIBS DOCKET ENTRY #12 (Entered: 07/30/2002) https://ecf.pamb.uscourts.gov/cgi-bin/DktRpt.pl?809128957647615-L 889 0-1 7/27/2007 L'SBC PAM - LIVE - VERSION 3.1.41, - Docket Report Page 3 of 5 08/23/2002 16 ANSWER by DEBTORS Re: Item # 11, [SP], ORIGINAL NIBS DOCKET ENTRY #15 (Entered: 08/26/2002) 08/26/2002 14 MOTION for default judgment Re: Item # 11 [Disposed], [JR], ORIGINAL NIBS DOCKET ENTRY # 13 (Entered: 08/26/2002) 08/26/2002 15 ORDER granting default judgment Re: Item # 14 [Entered: 08/26/02], [JR] ORDER granting relief from stay Re: Item # 11 [Entered: 08/26/02], [JR] ENTERED IN ERROR [Answer filed, Attorney notified], [SP], ORIGINAL NIBS DOCKET ENTRY #14 (Entered: 08/26/2002) 09/04/2002 17 CORRESPONDENCE SETTING Preliminary phone conference on 10/02/02 at 10:30 A.M. at Federal Building, Bankruptcy Courtroom [3rd Floor], Third & Walnut Streets, Harrisburg, PA 17101 Re: Item # 16, [SP], ORIGINAL NIBS DOCKET ENTRY #16 (Entered: 09/04/2002) 10/02/2002 18 PROCEEDING MEMO: phone conference held - order lifting stay to be entered. Re: Item # 11, [CL], ORIGINAL NIBS DOCKET ENTRY #17 (Entered: 10/02/2002) 10/03/2002 19 ORDER granting relief from stay Re: Item # 11, [SP], ORIGINAL NIBS DOCKET ENTRY #18 (Entered: 10/03/2002) 02/13/2003 20 MOTION TO DISMISS BY TRUSTEE WITH NOTICE SETTING HEARING on 03/13/03 at 02:00 P.M. at Federal Building, Bankruptcy Courtroom [3rd Floor], Third & Walnut Streets, Harrisburg, PA 17101, [SP], ORIGINAL NIBS DOCKET ENTRY #19 (Entered: 02/13/2003) 03/19/2003 21 STIPULATION by Parties. Amended Plan due within thirty 30 days. Re: Item # 20, [SP], ORIGINAL NIBS DOCKET ENTRY #20 (Entered: 03/19/2003) 03/19/2003 22 APPROVED by the court. Re: Item # 21, [SP], ORIGINAL NIBS DOCKET ENTRY #21 (Entered: 03/19/20x3) 04/07/2003 23 MOTION to Modify Plan by DEBTORS Re: Item # 7, [SP], ORIGINAL NIBS DOCKET ENTRY #22 (Entered: 04/08/2003) 04/07/2003 24 Amended Ch. 13 Plan [Requested Proof of Service] Re: Item # 1, [SP], ORIGINAL NIBS DOCKET ENTRY #23 (Entered: 04/08/2003) 04/14/2003 25 CERTIFICATE OF MAILING RE: NOTICE ON CHAPTER 13 PLAN AMENDMENT OBJECTIONS due on 05/01/03 Re: Item # 24, [CR], ORIGINAL NIBS DOCKET ENTRY 424 (Entered: 04/15/2003) 05/08/2003 26 Order Granting Motion To Modify Plan (RE: related document(s)23 ). (Pearlman, Susan) (Entered: 05/08/2003) https://ecf.pamb.uscourts.gov/cgi-bin/DktRpt.pl?809128957647615-L_889_0-1 7/27/2007 USBC PAM - LIVE - VERSION 3.1.41, - Docket Report Page 4 of 5 06/09/2003 27 Transfer (Assignment) of Claim and waiver of opportunity to object Transfer Agreement 3001 (e) 2 Transferors: First Consumers National Bank(Claim No.5, Amount 215.94) To Ecast Settlement Corporation Filed by Ecast Settlement Corporation. (Pearlman, Susan) (Entered: 06/30/2003) 06/07/2004 28 Transfer (Assignment) of Claim and waiver of opportunity to object Transfer Agreement 3001 (e) 2 Transferors:Beneficial(Claim No. 1, Amount 4189.67) To Ecast Settlement Corporation Filed by Ecast Settlement Corporation. (SP) (Entered: 06/07/2004) 09/21/2005 29 Final Report Final Report Filed by Trustee. (dehart, IIl(ck), Charles) (Entered: 09/21/2005) 09/22/2005 30 Request to BNC - Discharge of Debtor(s) entered on 9/22/2005 (SP) (Entered: 09/22/2005) 09/24/2005 31 BNC Certificate of Mailing of Discharge (Chapter 13) (RE: related document(s)30 ). Service Date 09/24/2005. (Admin.) (Entered: 09/25/2005) 09/29/2005 32 Request to BNC - Final Decree (SP) (Entered: 09/29/2005) 10/01/2005 33 BNC Certificate of Mailing of Final Decree (RE: related document(s)32 ). Service Date 10/01/2005. (Admin.) (Entered: 10/02/2005) 12/05/2006 34 Motion to Reopen Chapter 13 Case to file Adversary Action to Preserve Discharge Injunction. Filing fee due in the amount of $ 150.00 Filed by Matthew J Eshelman of Gates Halbruner & Hatch on behalf of Jamie L Bollinger, Nikki S Bollinger (RE: related document(s)32 ). (Attachments: # 1 Certificate of Service # 2 Exhibit re Concurrence Sought# 3 Proposed Order) (Eshelman, Matthew) (Entered: 12/05/2006) 12/05/2006 35 Motion for Expedited Consideration Filed by Matthew J Eshelman of Gates Halbruner & Hatch on behalf of Jamie L Bollinger, Nikki S Bollinger (RE: related document(s)34 ). (Attachments: # I. Exhibit re Concurrence Sought# 2 Certificate of Service) (Eshelman, Matthew) (Entered: 12/05/2006) 12/05/2006 36 Order (RE: related document(s)34, 35 ). Phone Conference to be held on 12/6/2006 at 09:30 AM at location (by telephone conference, Harrisburg, PA). (DD) (Entered: 12/05/2006) 12/06/2006 37 Proceeding Memo re: phone conference; held. Record Made. Motion to Reopen Case granted. Court to sign order enjoining sheriffs sale for ninety (90) days. Parties to file Stipulation of Facts and Briefs within thirty (30) days. Appearances: Matthew Eshelman and Steven Eisenberg. Non-Appearances:. (There is no image or paper document associated with this entry.) (RE: related document(s)34, 36, 35 ). (JG) (Entered: 12/06/2006) https://ecf.pamb.uscourts.gov/cgi-bin/DktRpt.pl?809128957647615-L 889 0-1 7/27/2007 USBC PAM - LIVE - VERSION 3.1.4L - Docket Report II PACER Service Center II Transaction 1 07/27/2007 10:05:58 1 ACER 1:0 1 -bk-05205-MDF Fil or Ent: Docket Search filed Doc From: 0 Doc To: Description: Report Criteria: 99999999 Term: included Format: HTML .24 Page 5 of 5 https:Hecf.pamb.uscourts.gov/cgi-bin/DktRpt.pl?809128957647615-L_889_0-1 7/27/2007 IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA FOR CUMBERLAND COUNTY RICHARD F. STERN, ESQUIRE (03315) STEVEN K. EISENBERG, ESQUIRE (75736) BRADLEY D. SISLEY, ESQUIRE STERN AND EISENBERG LLP THE PAVILION 261 OLD YORK ROAD, SUITE 410 JENKINTOWN, PENNSYLVANIA 19046 TELEPHONE: (215) 572-8111 FACSIMILE: (215) 572-5025 (COUNSEL FOR PLAINTIFF) Resurgent Capital Services, L.P. 15 S. Main Street 7th Floor Greenville, SC 29601 Plaintiff Civil Action Number: 2cX?'?- Z 4 '5? VS. Jamie L. Bollinger and Nikki S. Bollinger 110 Cold Springs Road Carlisle, PA 17013 Defendants MOTION FOR SUMMARY JUDGMENT MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT FACTS Under the date of February 22, 2001, Defendants, Jamie L. Bollinger and Nikki S. Bollinger executed and delivered to CitiFinancial, Inc. a mortgage upon the premises 110 Cold Springs Road, Carlisle, PA (the "Premises") to secure the payment of the sum of $20,608.24. The said mortgage was recorded in the Office of the Recording Deeds in and for Cumberland County on February 23, 2001 at Bk. 1673, P. 184. The mortgage was ultimately assigned to Plaintiff, Resurgent Capital Services, L.P. which has been duly recorded. As a result of Defendants' failure to make his monthly installments of $208.00 due on June 27, 2004 and on the same day of each month thereafter, Plaintiff filed a Civil Action in Mortgage Foreclosure on or about March 3, 2006. On March 7, 2007, Plaintiff purchased Premises at Sheriff s Sale after due advertisement according to law and under and by virtue of a Writ of Execution issued out of the Court of Common Pleas of Cumberland County, No. 2006 CV 1242 at the suit of Resurgent Capital Services, L.P. v. Jamie L. Bollinger. Defendant did not challenge the validity of the Sheriff s Sale. A deed was prepared and delivered conveying the Premises to Plaintiff on April 12, 2007. Plaintiff filed a Civil Action in Ejectment (hereinafter "Complaint") on or about April 16, 2007. Defendants filed an Answer with New Matter and Counterclaim (hereinafter "Answer") on or about May 21, 2007. Plaintiff filed a Response to New Matter and Answer to Counterclaims, and New Matter to New Matter and Counterclaims (hereinafter "Response") on or about June 1, 2007. The pleadings are now closed and summary judgment is appropriate. DISCUSSION Pa.R.C.P. § 1035.2 provides in relevant part as follows: "After the relevant pleadings are closed.... any parry may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material facts as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report..." It is emphasized that in the case, further discovery would not establish any element of Defendants' putative defenses and accordingly, this motion is timely filed. In reviewing a Motion for Summary Judgment, the court is guided by the following standards: It is well-settled under Pennsylvania law that, in ruling upon a motion for summary judgment, the trial court must consider the record in the light most favorable to the non-moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), cert. den., 117 S.Ct. 512, 136 L. Ed.2d 401, Sebelin v. Yamaha Motor Corp., 705 A.2d 904 (Pa. Super. 1998). A trial court may enter summary judgment only in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Ducjai v. Dennis, 540 Pa. 103, 656 A.2d 102 (1995), Banks v. Jerome Tam & Associates, 700 A.2d 1329 (Pa. Super. 1997), appeal denied, 555 Pa. 695, 723 A.2d 668 (1998). Although a dispute as to a material fact precludes summary judgment, entry of summary judgment is proper nonetheless where the moving party would be entitled to judgment as a matter of law if all factual disputes were resolved in the non-moving party's favor. See, e.g., Frederick v. Action Tire Co., 744 A.2d 762 (Pa. Super. 1999), Boring v. Erie Ins. Group, 641 A.2d 1189 (Pa. Super. 1994), Reed v. Ajilon, 138 Montg. Co. L.R. P. 13. It is emphasized that a parry seeking to avoid the entry of summary judgment may not rest upon the averments contained in the pleadings, but must establish that there is a genuine issue for trial by use of depositions, answers to interrogatories, admissions or affidavits. Washington Federal Savings and Loan v. Stein, 357 Pa. Super 286, 515 A.2d 980 (1986). Plaintiff is required to establish three elements in support of its claim for ejectment, as follows: (1) ownership and right to immediate possession; (2) defendant's wrongful possession; and (3) the request for relief: Lang v. Colonial Pipe Line ColnpM, 266 F. Supp. 552 (1967). It should be noted that in the case at hand, Defendants admitted the pertinent issues and clearly do not present any valid defenses to this action. Nor do they create any genuine issue of material fact, even when given the benefit of all reasonable inferences therefrom. Further, Defendant remains in wrongful possession of the Premises. Thus, there are no issues of material fact open for disposition at trial and summary judgment in Plaintiffs favor is appropriate. See Federal National Mortgage Association v. Citiano, 2003 Pa.Super 381, 834 A.2d 645 (2003). COUNTERCLAIMS The heart of Defendants counterclaim is that their bankruptcy petition requested that the Plaintiff's mortgage lien be stripped off, and its claim relegated to unsecured status. The Defendants (Debtors) were going to take action to challenge the validity of the lien. No such action was ever taken. In raising the issue the Defendants chose to raise the matter before the Bankruptcy Court which resulted in a 90-day stay of proceedings, nothing more. See the docket for the Bankruptcy Case, attached as Exhibit C. The Defendants chose the forum of the Bankruptcy Court and lost. It is not for the State Court to decide the propriety of the Bankruptcy Court actions which allowed the sheriff s sale to proceed and which sheriff sale was not challenged prior to the recordation of the sheriff s deed on April 12, 2007. See a copy of the recorded sheriff s deed attached as Exhibit A. Pursuant to Pa.R.C.P. § 3132, the Defendants could only challenge the foreclosure sale prior to the recording of the sheriff s deed. The New Matter and Counterclaim are nothing more than an improper collateral attack as set forth more fully below. With regard to the New Matter and Counterclaim presented by Defendant, Pa.R.C.P. § 3132 provides Defendants the right to file a petition to set aside the sheriff's sale prior to the recording of the sheriff's deed. Defendants did not file anything in a timely fashion. Defendants cannot collaterally attack the sheriff's sale in this ejectment proceedings. Citiano, supra, 834 A.2d at 648-49. Additionally, the Bankruptcy Court will not revisit the State Court's sheriff sale due to the bar under the Rooker-Feldman. Cooley v. Wachovia Mortgage Company et al. (In re Cooley), 2007 WL 781952, Pages 5-6 (Bkrtcy.E.D.Pa.). Rooker-Feldman does not allow a party to seek relief that, if granted would prevent a state court from enforcing its orders. Id. at Page 6 (citing Knapper v. Bankers Trust Co. (In re Knapper), 407 F.3d 573, 581 (3d. Cir.2005). It is fair to say that had the Bankruptcy Court accepted Defendants' argument, it would have done more than simply adjourn the sheriff sale. Not only are Defendants' claims inappropriate in the instant action, but they are also barred by the Rooker-Feldman doctrine. Id. at Page 7.1 PA.R.C.P. § 1030 provides Defendant with the right to set forth any material facts relevant to the matter. However, Defendant did not set forth sufficient facts to support any claims to prevent the entry of judgment. Defendant has a history of delaying this matter and this New Matter and Counterclaim is just another attempt by defendant to delay the process. These mere legal conclusions without factual support are insufficient to survive summary judgment. See Washington Federal Savings and Loan v. Stein, 357 Pa. Super 286, 515 A.2d 980 (1986). CONCLUSION Based on the foregoing discussion, it is Plaintiffs position that Defendants have failed to set forth any valid defenses raising genuine issues of material fact for decision at trial. Indeed, not only have Defendants failed to raise any issues of fact, but also they have effectively admitted each and every averment of Plaintiffs Civil Action-Ejectment. It is clear from the pleadings, support affidavits and Exhibits that there are no genuine issues of material facts in this action and that the trial thereof would be a waste of valuable judicial resources and result in undue expense and burden on Plaintiff. Therefore, this Court is requested to grant summary judgment in Plaintiff s favor and against Defendants on all issues. 1 Since Defendants filed their Bankruptcy Court petition, Plaintiff made numerous attempts to enforce its mortgage lien on the property. Plaintiff also incurred extensive costs. Plaintiff suffered extreme prejudice through undue delay by Defendants. In re Brennan, 71 B.R. 706, 709 (Bkrtcy.E.D.Pa.,1987), In re Ouackenbos, 71 B.R. 693, 695- 96 (Bkrtcy.E.D.Pa.1987). Defendants are subject to doctrine of laches and should be barred from pursuing Bankruptcy Court as a means of delaying underlying state adjudication. In re Ouackenbos, supra, 71 B.R. at 695. Respectfully submitted, STE D EISENBERG LLP S EVEN K. EISENBERG, Attorney for Plaintiff o ? , rv rrr;s IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA FOR CUMBERLAND COUNTY RICHARD F. STERN, ESQUIRE (03315) STEVEN K. EISENBERG, ESQUIRE (75736) BRADLEY D. SISLEY, ESQUIRE STERN AND EISENBERG LLP THE PAVILION 261 OLD YORK ROAD, SUITE 410 JENKINTOWN, PENNSYLVANIA 19046 TELEPHONE: (215) 572-8111 FACSIMILE: (215) 572-5025 (COUNSEL FOR PLAINTIFF) Resurgent Capital Services, L.P. 15 S. Main Street 7'h Floor Greenville, SC 29601 Plaintiff Civil Action Number: 'Zoo-1 _ Z I A+g? VS. Jamie L. Bollinger and Nikki S. Bollinger 110 Cold Springs Road Carlisle, PA 17013 Defendants MOTION FOR SUMMARY JUDGMENT CERTIFICATE OF SERVICE I, STEVEN K. EISENBERG, attorney for the within Plaintiff, hereby certify that a true and correct copy of Plaintiff's Motion for Summary Judgment together with a Memorandum of Law and Notice of Hearing date was mailed on *7 ' ;t 7 - U -7 by first class, postage prepaid mail to the following: Matthew J. Eshelman, Esquire 8 South Hanover, Suite 201, Carlisle PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 or (717) 395-8503 Respectfully submitted, STERN EISENBERG LLP STEVEN K. EISENBERG Attorney for Plaintiff ? CQ W Q Matthew J. Eshelman, Esquire 8 South Hanover, Suite 201, Carlisle PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 or (717) 395-8503 RESURGENT CAPITAL SERVICES, LP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. JAMIE L. BOLLINGER and JOHN/JANE DOE Defendants DOCKET No. 07 - 2148 Civil Term CIVIL ACTION - AT LAW COMPLAINT IN EJECTMENT RESPONSE TO MOTION FOR SUMMARY JUDGMENT Defendants Jamie L. Bollinger and Nikki S. Bollinger, his wife, (the "Bollingers") bring the following Response to Plaintiffs Motion for Summary Judgment Pursuant to Pa. R.C.P 1035.5, and in support hereof, represent as follows: 1. Issues of Procedure constituting grounds to deny Plaintiff's Motion: a. Rule 1035.1 et seq. require that a Motion for Summary Judgment be filed after the pleadings are closed. As of the time Plaintiff filed its Motion, however, the pleadings were not closed. b. Plaintiff included a New Matter to New Matter and Counterclaims in its Response [sic] to the Bollingers' New Matter and Counterclaim, to which no Notice to Plead was attached. As of the date of the Motion, the Bollingers' had not yet filed their Surreply to the Plaintiff's New Matter. C. This issue may be moot, however, insofar as the Bollingers have contemporaneously with this Response to Motion for Summary Judgment filed their Surreply and because all of the allegations raised in Plaintiff's New Matter appear to be conclusions of law to which no responsive pleading is necessary. 0 d. The Bollingers have, however, challenged the validity of the Plaintiff's actions in a court of competent jurisdiction, the United States Bankruptcy Court, prior to the exposure by Plaintiff of the Bollingers home at Sheriff Sale, which case remains open and pending as of this date. e. In Paragraphs 10, 12 and 13 of its Motion for Summary Judgment, Plaintiff incorrectly asserts that the Bankruptcy Court has denied the Bollingers' request. To the contrary, the Bankruptcy Court granted the Bollingers' Motion to Reopen their bankruptcy case. It is asserted that the Court granted the Motion to Reopen for the purpose of determining whether the foreclosure action was properly instituted, or whether it was void ab initio as violative of the bankruptcy discharge injunction. To date the Bankruptcy Court has not ruled on the matter. f. If the Sale was not valid, whether by virtue of the automatic stay, the bankruptcy discharge injunction, or principles of equity, the Plaintiff is not entitled to the relief sought either in its Motion or its Complaint. g. If the Sale is determined to be valid and final under Pennsylvania procedure, the Bollingers are still entitled to damages from the Plaintiff, including the possible award of the specific performance of a return of title to their residence, provided that they are able to establish that their Chapter 13 Bankruptcy Plan successfully stripped off the Plaintiff's mortgage and enjoined Plaintiff from any efforts to collect the debt from the Bollingers ab initio; or provided they are able to establish that the reopening of the Chapter 13 Bankruptcy Case reinstated the automatic stay, which would stay any of Plaintiffs efforts to collect the debt where Plaintiff still knowingly proceeded to collect such debt, again, ab initio. 2. Issues of Disputed Fact constituting grounds to deny Plaintiff's Motion: a. Plaintiff seeks summary judgment on all counts set forth in the Pleadings, where Plaintiff has denied all of the allegations set forth in the Bollingers' Answer with New Matter and Counterclaim. b. Such denials aside, there appear to be few if any disputed issues of fact where the record does not speak for itself. For example, Plaintiff has denied the allegations made in Paragraph 10 of the Bollingers' Counterclaim. Paragraph 10 reads, in full, as follows: 10. In September 2001, the Bollingers filed for protection under the United States Bankruptcy Code. C. Plaintiff replied to the allegations of Paragraph 10 of the Bollingers' Counterclaims as follows: 10. Denied as stated. The docket for the Bankruptcy Case is attached hereto as Exhibit "C" in its entirety rather than in selected portions as done by Defendants. d. To the extent facts appearing of record in the United States Bankruptcy Court of the Middle District of Pennsylvania, to docket number 1-01-bk-05205-MDF may be incorporated by reference into the record at bar, no additional fact testimony is required. e. However, Plaintiff, by virtue of its denials by reference to the record may also have denied certain material facts, which appear of record only by implication, which would place them in dispute. For example, in Paragraph 11 of their Counterclaim, the Bollingers asserted that the Plaintiff's predecessor in title was served with notice of their bankruptcy filing and the proposed treatment of the secured claim under their plan. In their reply, Plaintiff has denied this allegation "as stated," asserting that "the Bankruptcy record speaks for itself." (Reply, Paragraph 11.) f. It may be necessary to place on this Court's record testimony regarding what is included in the Bankruptcy Court's record and how it should be interpreted. For example, entry number five on the Docket Statement of the Bankruptcy Court action reads as follows: "Certificate of Mailing of Notice of 341 Meeting. Objections to the plan are due 15 days after meeting held." See Exhibit "C" attached to both the Plaintiff's Response to New Matter and Counterclaims and to Plaintiff's Motion for Summary Judgment. g. Introduction of a printout of this document is required in order to establish that notice, both of the filing and of the intended treatment of Plaintiff's lien, were provided to Plaintiff's predecessor in title by the Clerk of the Bankruptcy Court. h. Thus, more specifically, to the extent that Plaintiff denies the following facts alleged in the Answer, New Matter, and Counterclaim, there exists a genuine dispute as to issues of material fact, obviating summary judgment at least as to those claims: i) That the Bollingers filed for bankruptcy protection in September 2001. ii) That the Bollingers notified Plaintiff (through its predecessor in title) of the bankruptcy petition, and more importantly, their proposed treatment of Plaintiff's claim under the plan. iii) That the Bollingers' plan requested the bankruptcy court to strip off the mortgage lien of the Plaintiff and relegate its claim to unsecured status. iv) That the Bollingers' plan was confirmed by the court without objection. V) That the Bollingers completed all of the conditions of their bankruptcy plan. vi) That the bankruptcy court issued a discharge injunction upon all creditors, including the Plaintiff, from seeking to collect a debt of the Bollingers in September 2005. vii) That counsel for the Bollingers sent correspondence to the Plaintiff in July 2006, as attached to the Defendants' Answer, New Matter and Counterclaim as Exhibit A. viii) That counsel for the Bollingers sent additional correspondence in October 2006, as attached to the Defendants' Answer New Matter and Counterclaim as Exhibit B. ix) That the bankruptcy court ordered the Bollingers' case reopened in December 2006, and that that case remains open to this date, x) That the date of the Sheriff's Sale conducted at the behest of the Plaintiff occurred subsequent to written notice directed to Plaintiff and subsequent to the Federal Judge's order granting the Motion to Reopen Case. xi) That the damages incurred by the Bollingers' equals or exceeds the value of the Bollingers' home. i. An affidavit in support of this Response is attached hereto and incorporated herein by reference. j. The material nature of these facts is described in,additional detail below. 3. Issues of Law constituting grounds to deny Plaintiff's Motion: a. The primary dispute in this matter, however, would appear to turn upon the proper application of federal and state law and the legal effect, if any, of actions taken by the parties. b. Plaintiff operated "under color of law" by directing the Sheriff of Cumberland County to expose for sale, and execute a deed purporting to convey, the Bollingers' sole residence. C. At the time, Plaintiff was on notice that its right to do so had been extinguished by operation of federal law or, at a minimum, that such right was disputed and pending review by a court of competent jurisdiction. d. Ordinarily, it is sufficient to send a "safe-harbor" letter under the Rules of Pennsylvania Procedure demanding the cessation of a legal action prosecuted without legal basis or risk sanction by this Court. e. Ordinarily, it is sufficient to operate within the provisions of the automatic stay to resolve disputes among debtors and creditors and ceasing all legal action or risk sanction by either this Court or the Bankruptcy Court. f. Even if Plaintiffs actions inducing state court system to foreclose upon and sell the Bollingers' home are deemed to be final as uncontested (for not having filed an Answer to the Complaint in Foreclosure) or improperly contested (e.g., in the Bankruptcy Court rather than in State Court), there remains to be determined what is the appropriate measure of damages against the Plaintiff for executing upon a property when i) the underlying mortgage had been avoided by federal law; the bankruptcy case remained open and the property remained subject to the automatic stay of 11 U.S.C. § 362; and iii) the Plaintiff had been placed on notice by a consumer that a matter concerning the collection of a debt was in dispute. WHEREFORE, Defendants Jamie L. Bollinger and Nikki S. Bollinger (as Defendant Jane Doe), respectfully request this Court deny Plaintiffs Motion for Summary Judgment or, in the event all issues of material fact may be determined by reference to the record of a court of law or by stipulation, issue an award of specific performance of the quitclaim of real estate, an award of damages equal to the value of the real estate, an award of damages for violation of various state and federal rights, or an award for any or all of the above, and for costs and such other relief as the Court deems appropriate. Resp ct sub itt , y Date: August 31, 2007 Matthew J. Eshelman, Esquire, Pa Id. 72655 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 395-8503 M.Eshelman@hotmail.com Attorneys for the Defendant Bollingers 141 Matthew J. Eshelman, Esquire 8 South Hanover, Suite 201, Carlisle PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 or (717) 395-8503 RESURGENT CAPITAL SERVICES, LP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. DOCKET No. 07 - 2148 Civil Term JAMIE L. BOLLINGER and JOHN/JANE DOE Defendants : CIVIL ACTION - AT LAW : COMPLAINT IN EJECTMENT AFFIDAVIT IN SUPPORT OF DEFENDANT'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND CROSS MOTION FOR SUMMARY JUDGMENT COUNTY OF CUMBERLAND : SS: COMMONWEALTH OF PENNSYLVANIA The undersigned, Matthew J. Eshelman, being duly sworn, avers as follows: 1. The Bollingers filed for bankruptcy protection in September 2001. 2. The Bollingers notified Plaintiff (through its predecessor in title) of the bankruptcy petition, and more importantly, their proposed treatment of Plaintiff's claim under the plan. 3. The Bollingers' plan requested the bankruptcy court to strip off the mortgage lien of the Plaintiff and relegate its claim to unsecured status. Please refer to the Plan itself for its specific language. 4. At the time, and to this day, the Middle District Bankruptcy Court permits lien- stripping by plan confirmation, rather than requiring the filing of an adversarial action. 5. The Bollingers' plan was confirmed by the court without objection. 6. The Bollingers completed all of the conditions of their bankruptcy plan. 7. The bankruptcy court issued a discharge injunction upon all creditors, including the Plaintiff, from seeking to collect a debt of the Bollingers in September 2005. 8. Counsel for the Bollingers sent correspondence to the Plaintiff in July 2006, as attached to the Defendants' Answer, New Matter and Counterclaim as Exhibit A. 9. Counsel for the Bollingers sent additional correspondence in October 2006, as attached to the Defendants' Answer New Matter and Counterclaim as Exhibit B. 10. The bankruptcy court ordered the Bollingers' case reopened in December 2006, and that that case remains open to this date. 11. The date of the Sheriff's Sale conducted at the behest of the Plaintiff occurred subsequent to written notice directed to Plaintiff and subsequent to the Federal Judge's order granting the Motion to Reopen Case. Date: qj i4j b 7 Sworn and subscribed before me, a notary public on this date: 91 otary Public NOTARIAL SEAL, CLAUDIA A. BREWBAKER, NOTARy pUBW Carlisle. Boro. CumberlwW County M CommMon Ex 1res ApdI 2009 Matthew J. Eshelman, Esquire, Pa Id. 72655 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 395-8503 M.Eshelman@hotmail.com Attorneys for the Defendant Bollingers Matthew J. Eshelman, Esquire 8 South Hanover, Suite 201, Carlisle PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 or (717) 395-8503 RESURGENT CAPITAL SERVICES, LP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. : DOCKET No. 07 - 2148 Civil Term JAMIE L. BOLLINGER and CIVIL ACTION - AT LAW JOHN/JANE DOE COMPLAINT IN EJECTMENT Defendants CERTIFICATE OF SERVICE The undersigned, being the attorney for the Defendant in the above-captioned matter, hereby certify that a true and correct copy of the attached Response was transmitted as addressed below, which service satisfies the Pennsylvania Rules of Civil Procedure: Steven K. Eisenberg, Esquire 261 Old York Road, Suite 410 Jenkintown, PA 19046 (Attorneys for the Plaintiff) (via U.S. Mail, lst class) Respectfully Date: f / Matthew J. Eshe1'fnan, Esquire, Pa Id. 72655 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 395-8503 M.Eshelman@hotmail.com Attorneys for the Defendant Bollingers Y Matthew J. Eshelman, Esquire 8 South Hanover, Suite 201, Carlisle PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 or (717) 395-8503 RESURGENT CAPITAL SERVICES, LP, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. : DOCKET No. 07 - 2148 Civil Term JAMIE L. BOLLINGER and CIVIL ACTION - AT LAW JOHN/JANE DOE COMPLAINT IN EJECTMENT Defendants SURREPLY OF DEFENDANTS TO NEW MATTER OF PLAINTIFF TO DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM Defendants Jamie L. Bollinger and Nikki S. Bollinger, his wife, (the Bollingers") bring the following Surreply to the New Matter of Plaintiff Resurgent Capital Services, L.P., filed to the Bollingers' Answer with New Matter and Counterclaim to the Plaintiff's Complaint in Ejectment, and in support hereof, aver as follows: Paragraphs 35 - 45. Denied. The allegations contained in Paragraphs 35 through 45 of Plaintiff's New Matter to New Matter and Counterclaims constitute conclusions of law to which no responsive pleading is required; but, to the extent such allegations are deemed to be factual, the same are denied. WHEREFORE, Defendants Jamie L. Bollinger and Nikki S. Bollinger (as Defendant Jane Doe), respectfully restate their demand for relief set forth in their Counterclaim that this Court issue an award of specific performance of the quitclaim of real estate, an award of damages equal to the value of the real estate, an award of damages for violation of various state U -4 and federal rights, or an award for any or all of the above, and for costs and such other relief as the Court deems appropriate. Respe tfull submi d, Date: August 31, 2007 Matthew J. Eshelman, Esquire, Pa Id. 72655 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 M.Eshelman@hotmail.com Attorneys for the Defendant Bollingers r? Matthew J. Eshelman, Esquire 8 South Hanover, Suite 201, Carlisle PO Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 or (717) 395-8503 RESURGENT CAPITAL SERVICES, LP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS. DOCKET No. 07 - 2148 Civil Term JAMIE L. BOLLINGER and : CIVIL ACTION - AT LAW JOHN/JANE DOE : COMPLAINT IN EJECTMENT Defendants CERTIFICATE OF SERVICE The undersigned, being the attorney for the Defendant in the above-captioned matter, hereby certify that a true and correct copy of the attached Surreply was transmitted as addressed below, which service satisfies the Pennsylvania Rules of Civil Procedure: Steven K. Eisenberg, Esquire 261 Old York Road, Suite 410 Jenkintown, PA 19046 (Attorneys for the Plaintiff) (via U.S. Mail, 1St class) Date: y ill ibmi d9 Matthew J. Eshelman, Esquire, Pa Id. 72655 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 395-8503 M.Eshelman@hotmail.com Attorneys for the Defendant Bollingers r? 10 ?-t PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) pC TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) _ O CAPTION OF CASE - o ril (entire caption must be stated in full) Cam'-, v:, r, -- ?rrC Resurgent Capital Servicee, L.P. =it=' Vs. d ? r. Jamie L. Bollinger and John/Jane Doe No. 07-2148 Tenn 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Motion for Summary Judgment 2. Identify all counsel who will argue cases: (a) for plaintiffs: Steven R Eisenberg, Esq (Name and Address) 261 Old York Road, Ste. 410 The Pavilion, Jenkintown, PA 19046' / (b) for defendants: J Matthew J. Eshelman, Esq. (Name and Address) P.O. Box 1080, Camp Hill, PA 17001-1080 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Steven K. Eisenberg, Esq. #75736 Print your name Plaintiff Attorney for Date: 12/5/2007 INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. K argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case Is rellsted. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION-LAW Steven K. Eisenberg, Esquire Stern and Eisenberg, LLP Ste. 410, The Pavilion 261 Old York Road Jenkintown, PA 19046 215-572-8111 I.D. #75736 Resurgent Capital Services, L.P. Vs. : No. 07-2148 Civil Term Jamie L. Bollinger and John/Jane Doe CERTIFICATE OF SERVICE I, Steven K. Eisenberg, Esquire, attorney for the within Plaintiff, hereby certify that a copy of the notice from the Prothonotary, scheduling oral argument on Plaintiff s Motion for Summary Judgment, together with a copy of Plaintiff's Memorandum of Law in support of its motion, in the above captioned matter was mailed to the following by first class, postage prepaid mail on January 10, 2008: Matthew J. Eshelman, Esquire P.O. BOX 1080 Camp Hill, PA 17001 11- Steven K. Eisenberg, Attorney for Plaintiff STERN AND ISENBERG BY: DATE: 1/10/2008 f') 0 T FYI r; =t ?~ :z3 RESURGENT CAPITAL SERVICES, L.P.: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 07-2148 vs. JAMIE L. BOLLINGER, et al., Defendants ENTRY OF APPEARANCE AS LOCAL COUNSEL Dear Sir: I hereby enter my appearance as local counsel, in conjunction with STERN AND EISENBERG, L.L.P., for the limited purpose of representing Plaintiff at Argument Court to be held on Wednesday, January 23, 2008 on Plaintiff's Motion for Summary,,.Tadgment. Date: January 18, 2008 Dale F. Shughak,) J . Supreme Court I. 937 10 West High Stree Carlisle, PA 17013 (717) 241-4311 CC: Steven K. Eisenberg, Esquire, Stern and Eisenberg Matthew J. Eshelman, Esquire . c. r RESURGENT CAPITAL SERVICES, LP, PLAINTIFF V. JAMIE L. BOLLINGER AND JOHN/JANE DOE, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 07-2148 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR SUMMARY JUDGMENT IN EJECTMENT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of January, 2008, IT IS ORDERED that summary judgment in ejectment is awarded to Resurgent Capital Services, LP against Jamie L. Bollinger and John/Jane Doe for 110 Cold Springs Road, Dickinson Township, Cumberland County, Pennsylvania. V," le F. Shughart, Jr., Esquire Steven K. Eisenberg, Esquire 261 Old York Road Suite 410 Jenkintown, PA 19046 For Plaintiff atthew J. Eshelman, Esquire P.O. Box 1080 Camp Hill, PA 17011-1080 For Defendants V X e,je &J )> . &5 eA e`G , V Es 3 :sal C!? tt? a? RESURGENT CAPITAL SERVICES, LP, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JAMIE L. BOLLINGER AND JOHN/JANE DOE, DEFENDANTS 07-2148 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR SUMMARY JUDGMENT IN EJECTMENT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., January 30, 2008:-- On April 16, 2007, plaintiff, Resurgent Capital Services, LP, filed an action to eject defendants, Jamie L. Bollinger and John/Jane Doe, from 110 Cold Springs Road, Dickinson Township, Cumberland County, Pennsylvania. Resurgent avers in its complaint that it purchased 110 Cold Springs Road at a Cumberland County sheriff's sale on March 7, 2007, on a writ of execution issued in this court against Jamie L. Bollinger and Nikki S. Bollinger.' An answer to the complaint was filed by Jamie L. Bollinger and Nikki S. Bollinger, in which they admitted that their property at 110 Cold Springs Road was sold by the Sheriff on March 7, 2007, and that the Sheriff delivered a deed to the plaintiff on March 27, 2007. In new matter, the Bollingers aver: 10. In September 2001, the Bollingers filed for protection under the United States Bankruptcy Code. 11. The Bollingers named the Plaintiff's predecessor in title, CitiFinancial, Inc., a creditor in that bankruptcy, and served them with 1 The action in mortgage foreclosure was filed on March 3, 2006. 07-2148 CIVIL TERM notice of the filing. 12. The Bollingers' bankruptcy petition requested that the Plaintiff's mortgage lien be stripped off, and its claim relegated to unsecured status. 13. Plaintiff never objected to the proposed treatment under the bankruptcy plan. 14. The Bollingers' Plan was confirmed by the bankruptcy court, and then completed by the Bollingers. 15. The bankruptcy court issued a Discharge enjoining any creditor from seeking to collect a debt on September 22, 2005. 16. After the Bollingers' Plan was completed, their case closed, and the discharge injunction issued, the Plaintiff nonetheless sought to proceed under a foreclosure action. 20. When it became apparent that Plaintiff intended to proceed despite the bankruptcy court's order, a motion to re-open the case and reinstate the automatic stay was filed with the bankruptcy court in December 2006. 23. The bankruptcy court granted the motion to re-open the case on December 6, 2006, a copy of the electronic notice of filing is attached hereto as Exhibit "C" and incorporated herein by reference. 24. At this point, the Bollingers' case remains open and pending before the bankruptcy court, if in an unusual procedural posture, and the Plaintiff has failed to obtain relief from the automatic stay. The docket entry in the bankruptcy court referred to as Exhibit C in paragraph 23 provides: "Motion to Reopen Case granted. Court to sign order enjoining sheriff's sale for ninety (90) days." The Bollingers make legal conclusions in the following averments in their new matter. 26. Plaintiffs Complaint should be dismissed because the obligations, both in personam and in rem, of the Bollingers have been discharged in bankruptcy. 27. Plaintiff's Complaint should be dismissed by virtue of the doctrine of estoppel, where it is unfair and unjust for a creditor to proceed upon documents it knows to be disputed and in litigation before another court. 28. Plaintiffs Complaint should be dismissed by virtue of the -2- 07-2148 CIVIL TERM doctrine of res judicata, where the documents underlying Plaintiff's action have already be [sic] adjudicated by the court of law having appropriate jurisdiction over them. Plaintiff filed a response to the new matter attaching the docket entries of the Bollingers' bankruptcy proceeding in the Middle District of Pennsylvania.2 The docket entries show that the Bollingers filed a voluntary petition under Chapter 13 of the Bankruptcy Law on September 26, 2001. A discharge of debtors was entered on September 22, 2005. A motion by the Bollingers to reopen the case was filed on December 5, 2006, and on December 6, 2006, the motion was granted and the court enjoined the sheriff's sale for ninety days. That is the last entry on the docket. The Cumberland County Sheriff's sale of 110 Cold Springs Road took place after the ninety day injunction entered by the bankruptcy court on December 6, 2006, expired. Plaintiff filed a motion for summary judgment in ejectment which was briefed and argued on January 23, 2008.3 In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment. A court: ... must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non- moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could 2 #: 1:01 - bk - 05205 - MDF. 3 The Bollingers also responded to plaintiff's complaint with a counterclaim for damages. Resurgent Capital has not sought summary judgment on the counterclaim. -3- 07-2148 CIVIL TERM return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). Pa. Rule of Civil Procedure 3132 provides: Upon petition of any party in interest before delivery of the personal property or of the sheriffs deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances. (Emphasis added.) The Bollingers never filed a petition to set aside the sheriff's sale of their property. A former property owner cannot collaterally attack the validity of a sheriff sale in the purchaser's ejectment action against the former owner, Federal National Mortgage Association v. Citiano, 834 A.2d 645 (Pa. Super. 2003), unless the sheriff's sale was void for want of jurisdiction of either the subject matter or the person. Meritor Mortgage Corp. East v. Henderson, 421 Pa. Super. 339 (1992). The Bollingers maintain that there was no in rem jurisdiction over the property at 110 Cold Springs Road, that was in their estate in bankruptcy, for the Cumberland County Sheriff to sell it because, as they argue in their brief: The automatic stay operates as a stay, applicable to the Plaintiff, of any act to obtain possession of property of the estate (11 U.S.C. § 362(a)(3)) or to enforce any lien against property of the estate (11 U.S.C. § 362 (a)(4)). And, with certain exceptions (none of which are applicable at bar), the stay of an act against property of the estate under Section 362(a) continues until such property is no longer property of the estate. 11 U.S.C. § 362(c)(1). The Bollingers cite In re Ward, 837 F.2d 124 (3d Cir. 1988), and In re Siciliano, 13 F.3d 748 (3d Cir. 1994), for the proposition that legal proceedings, including those in -4- 07-2148 CIVIL TERM state courts such as an action in mortgage foreclosure and ejectment conducted in violation of an automatic bankruptcy stay are void or, at a minimum, voidable. The United States Code, pertaining to estates in bankruptcy, provides at 11 U.S.C.A. § 541(a): ... a petition filed under section 301, 302, or 303 of this title .. . operates as a stay, applicable to all entities, of- (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; (2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title; (3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; (4) any act to create, perfect, or enforce any lien against property of the estate; (c) Except as provided in subsections (d), (e), (f), and (h) of this section- (1) the stay of an act against property of the estate under subsection (a) of this section continues until such property is no longer property of the estate; (Emphasis added.) In Knapper v. Bankers Trust Co., as Trustee for Amresco Residential Securities Corp., 407 F.3d 573 (3d Cir. 2005), the United States Court of Appeals cited an observer as to the role attributed to Chapter 13's impact on a residential mortgage: Chapter 13 is entitled "Adjustment of Debts of an Individual with Regular Income." A Chapter 13 bankruptcy is best envisioned as a repayment plan organized through the bankruptcy court. In contrast to Chapter 7, which requires a debtor to give up her non-exempt assets in return for a discharge of debts, a Chapter 13 debtor proposes a repayment plan to the court..... -5- 07-2148 CIVIL TERM Chapter 13's greatest significance for debtors is its use as a weapon to avoid foreclosure on their homes.... Chapter 13 bankruptcies do not result in destruction of the interests of traditional mortgage lenders. Under Chapter 13, a debtor cannot discharge a mortgage debt and keep her home. Rather, a Chapter 13 bankruptcy offers the debtor an opportunity to cure a mortgage delinquency over time-in essence it is a statutorily mandated payment plan-but one that requires the debtor to pay precisely the amount she would have to pay to the lender outside of bankruptcy. Under Chapter 13, the plan must provide the amount necessary to cure the mortgage default, which includes the fees and costs allowed by the mortgage agreement and by state law.... Even though a debtor must, through reinstatement of her delinquent mortgage by a Chapter 13 repayment plan or by plan payments that pay the entire mortgage off over the life of the plan, pay her full obligation to the lender, Chapter 13 remains the only viable way for most mortgage debtors to cure defaults and save their homes. Susan L. DeJarnatt, Once Is Not Enough: Preserving Consumers' Rights to Bankruptcy Protection, 74 Ind. L.J. 455, 458-59, 495-96 (1999). In the case sub judice, there are no disputed facts. The Bollingers filed a voluntary Chapter 13 bankruptcy proceeding in the Middle District Court of Pennsylvania on September 26, 2001. The petition triggered an automatic stay under 11 U.S.C.A. § 541(a). On September 22, 2005, a discharge of debtors was entered. A final decree was entered on September 29, 2005, with a certificate of mailing on October 1, 2005. Over a year later, on December 5, 2006, the Bollingers filed a "Motion to Reopen Chapter 13 Case." That motion was not a petition that triggered an automatic stay under 11 U.S.C.A. § 541(a). To the contrary, on December 6, 2006, the Bankruptcy Court entered a specific, limited stay enjoining the sheriffs sale of 110 Cold Springs Road for ninety days. The sheriff sale took place on March 7, 2007, after the ninety day stay expired. Clearly, the sheriff sale of 110 Cold Springs Road was not in violation of the automatic stay that was effective from when the bankruptcy petition was -6- 07-2148 CIVIL TERM filed on September 26, 2001, until the final decree was entered on September 29, 2005, at which time the property was no longer part of a bankrupt estate. The sheriff sale of 110 Cold Springs Road on March 7, 2007, for which a deed was delivered on March 27, 2007, is not void or voidable. This court had subject matter jurisdiction over the property when it was sold by the sheriff. There being no disputed issue of fact that Resurgent owns 110 Cold Springs Road, it has a right to immediate possession, and defendant's are in wrongful possession of that property. Therefore, the following order is entered. ORDER OF COURT AND NOW, this 10 day of January, 2008, IT IS ORDERED that summary judgment in ejectment is awarded to Resurgent Capital Services, LP against Jamie L. Bollinger and John/Jane Doe for 110 Cold Springs Road, Dickinson Township, Cumberland County, Pennsylvania. By the -7- 07-2148 CIVIL TERM Dale F. Shughart, Jr., Esquire Steven K. Eisenberg, Esquire 261 Old York Road Suite 410 Jenkintown, PA 19046 For Plaintiff Matthew J. Eshelman, Esquire P.O. Box 1080 Camp Hill, PA 17011-1080 For Defendants sal -8- I . CIVIL ACTION-LAW STEVEN K. EISENBERG, ESQUIRE STERN AND EISENBERG Ste. 410, The Pavilion 261 Old York Road Jenkintown, PA 19046 (215) 572-8111 I.D. #75736 RESURGENT CAPITAL SERVICES, L.P. VS. JAMIE L. BOLLINGER AND JOHN/JANE DOE : NO. 2007-2148 CIVIL PRAECIPE FOR JUDGMENT IN POSSESSION TO THE PROTHONOTARY: Kindly enter judgment in ejectment for possession of the following described property in favor of the Plaintiff and against the Defendants in accordance with Order of Court dated January 30, 2008, a true and correct copy of which is attached hereto. PREMISES: 110 COLD SPRINGS ROAD, CARLISLE, PA 17013 BY: STERN AND EISENBERG STEVEN K. EISENt Attorney for Plaintiff J:\DIANE\POSSESSION\RESURGENT-BOLLINGER CUMBERLAND 5-07.DOC RESURGENT CAPITAL S LP, PLAINTIFF V. JAMIE L. BOLLINGER AN JOHN/JANE DOE, DEFENDANTS r? :RVICES, IN THE COURT OF COMMO?,RLEAS. OF CUMBERLAND COUNTY, PENNSYLVANIA 07-2148 CIVIL TERM IN RE: MOTION b.E.QLAINTIFF FOR SUMMARY JUDGMENT IN EJECTMENT BEFORE BAYL.EY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of January, 2008, IT IS ORDERED that summary judgment in ejectment is awarded to Resurgent Capital Services, LP against Jamie L. Bollinger and John/Jane Doe for 110 Cold Springs Road, Dickinson Township, Cumberland County, Pennsylvania. By the Coor--? Dale F. Shughart, Jr., Esqi Steven K. Eisenberg, Esgi 261 Old York Road Suite 410 Jenkintown, PA 19046 For Plaintiff Matthew J. Eshelman, Esqi P.O. Box 1080 . Camp Hill, PA 17011-108C For Defendants re ,ire sal Z06 ZT9'0N 9T:ZT 800ZiT0iZ0 64 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION-LAW STEVEN K. EISENBERG, ESQUIRE STERN AND EISENBERG Ste. 410, The Pavilion 261 Old York Road Jenkintown, PA 19046 (215) 572-8111 I.D. #75736 RESURGENT CAPITAL SERVICES, L.P. VS. JAMIE L. BOLLINGER AND JOHN/JANE DOE AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF MONTGOMERY I, the undersigned, being duly sworn according to law, deposes and says, to the best of his knowledge, information and belief, Defendants': : NO. 2007-2148 CIVIL SS 1. Last-known address is: 110 Cold Springs Road, Carlisle, PA 17013 John Doe, 22 South East Street, Carlisle, PA 17013 2. Are over the age of twenty-one. 3. Are not now nor have been within the last six (6) months in the Armed Services of the United States as defined in the Soldiers' Civil Relie4kct of 1940, as amended. COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL DIANE J TURANO, Notary a,jblic Jenkint,, wn Eoro., Montgomery County ,,.. BY: D EISENBERG Sworn to and su cribed before me this WrUay 2008. J:\DIANE\POSSESSION\RESURGENT-BOLLINGER CUMBERLAND 5-07.DOC STEVEN K. EISENBERG Attorneys for Plaintiff 1% COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION-LAW STEVEN K. EISENBERG, ESQUIRE STERN AND EISENBERG Ste. 410, The Pavilion 261 Old York Road Jenkintown, PA 19046 (215) 572-8111 I.D. #75736 RESURGENT CAPITAL SERVICES, L.P. VS. JAMIE L. BOLLINGER AND JOHN/JANE DOE : NO. 2007-2148 CIVIL CERTIFICATION UNDER RULE 237.1 I, the undersigned attorney on the Writ and attorney for Plaintiff, hereby certify that no ten-day notice was required since judgment was entered pursuant to Order of Court, a copy of which is attached hereto. STERN AI9D EISENBERG BY: EVEN K. EISENBERG Attorneys for Plaintiff J:\DIANE\POSSESSION\RESURGENT-BOLLINGER CUMBERLAND 5-07.DOC ob RESURGENT CAPITAL SERVICES, LP, PLAINTIFF V. JAMIE L. BOLLINGER AN JOHN/JANE DOE, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 07-2148 CIVIL TERM IN RE: MOTION MP.LAINTIFF FOR SUMMARY JUDGMENT IN EJECTMENT I BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of January, 2008, IT IS ORDERED that summary judgment in ejectment is awarded to Resurgent Capital Services, LP against Jamie L. Bollinger and John/Jane Doe for 110 Cold Springs Road, Dickinson Township, Cumberland County, Pennsylvania. By the Co i Dale F. Shughart, Jr., EsgL Steven K. Eisenberg, EsqL 261 Old York Road Suite 410 Jenkintown, PA 19046 For Plaintiff Matthew J. Eshelman, Esq P.O. Box 1080 . Camp Hill, PA 17011-108( For Defendants re lire sal Z0Q ZT9'ON 9T:zT 800E/To/E0 joll- 0 C` c= -ct O t .. D Y t l; 2 co r1i? { C= Frn w co 6 .t COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION-LAW STEVEN K. EISENBERG, ESQUIRE STERN AND EISENBERG Ste. 410, The Pavilion 261 Old York Road Jenkintown, PA 19046 (215) 572-8111 I.D. #75736 RESURGENT CAPITAL SERVICES, L.P. VS. JAMIE L. BOLLINGER AND JOHN/JANE DOE : NO. 2007-2148 CIVIL PRAECIPE FOR WRIT OF'POSSESSION TO THE PROTHONOTARY: Kindly issue the Writ of Possession in the above matter in favor of the Plaintiff and against the Defendants JAMIE L. BOLLINGER AND JOHN/JANE DOE. PREMISES: 110 COLD SPRINGS ROAD, CARLISLE, PA 17013 BY: STERN AND EISENBERG STE-VEN K. EISENBERG Attorney for Plaintiff J:\DIANE\POSSESSION\RESURGENT-BOLLINGER CUMBERLAND 5-07.DOC N T? t'7 1 !"Y7 M33 O p O yA ` .? '?. 1 ? w ? ? i C7% t7 F 1 ( d e ' p ` p co 0 D d 1% 0 9 ALL THAT CERTAIN lot or parcel of ground situated in the Township of Dickinson, County of Cumberland, and State of Pennsylvania, bounded and described in accordance with survey made by John R. Williams, Professional Land Surveyor, a draft of which dated August 18, 1997, is attached hereto and incorporated herein by reference, as follows: BEGINNING at a set steel pin on the eastern line of 33 feet wide Township Road T-356 known as Cold Spring Road at comer of land now or formerly of Harold R Rice; thence from said set steel pin at the Place of Beginning along said eastern line of 33 feet wide Cold Spring Road, South 23 degrees 26 minutes 40 seconds West a distance of 100.00 feet to a steel pin set in concrete; thence crossing said Cold Spring Road and continuing along line of land formerly of Luther Nogle and now or formerly of Ray A. Bear, North 63 degrees 50 minutes 00 seconds West a distance of 316.75 feet to a three (3) feet high pipe in line of other land of Ray A. Bear; thence along line of said other land of Ray A. Bear which was formerly of Earl Raudabaugh and later of George Bear, North 18 degrees 34 minutes 00 seconds East a distance of 89.70 feet to a three feet high pipe at comer common to said land of George Bear and land of John C. Walters and land now of Harold K Rice; thence along line of said land now of Harold R. Rice which was formerly of James G. Heiser, South 65 degrees 46 minutes 27 seconds East a distance of 324.05 feet, crossing said Cold Spring Road at a set steel pin at the Place of BEGINNING. THE ABOVE described lot of ground has thereon erected a one-story dwelling house and has a mailing address of 110 Cold Spring Road, Carlisle, Pennsylvania 17013. Parcel No.: 08-32-2326-015 BEING the same premises which M. Corinne Otto, Executrix of the Last Will an d Testament of Mary A. Myers, Deceased, and joined by Dean W. Otto and Martha J. Otto, husband and wife; and joined by M. Corrine Otto, in her individual capacity, and David H. Myers, Jr., and Pearl I. Gitt, by Deed dated January 13, 1999, and recorded January 19, 1999, in Book 192, Page 1017, as Instrument No. 1999-001765, granted and conveyed unto Jamie L. Bollinger, in fee. EXHIBIT Y A W2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RESURGENT CAPITAL SERVICES, L.P. VS. No. 07-2148 Civil Term JAMIE L. BOLLINGER AND JOHN/JANE DOE Costs Attorney's $ 166.26 Plaintiff's $ Prothonotary $ 2.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) RESURGENT CAPITAL SERVICES, L.P. being: (Premises as follows): 110 COLD SPRINGS ROAD, CARLISLE, PA 17013 (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. Curtis R. Long, r noMy , Common Plea ourt of erland County, PA Date FEBRUARY 6, 2008 (Seal) 04 2of2 No 07-2148 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RESURGENT CAPITAL SERVICES, L.P. VS. JAMIE L. BOLLINGER AND JOHN /JANE DOE 110 COLD SPRINGS ROAD CARLISLE, PA 17013 WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Att'y $ 166.26 Plff (s) $ Prothy $ 2.00 Sheriff $ Plaintiff (s) attorney name and address: STEVEN K. EISENBERG, ESQUIRE STERN AND EISENBERG 261 OLD YORK ROAD JENKINTOWN, PA 19046 215-572-8111 I.D. #75736 Attorney for Plaintiff (s) Where papers may be served By virtue of this writ, on the day of , . I caused the within named , to have possession of the premises described with the appurtenances, and So Answers, Sworn and subscribed to before me this Day of By Sheriff Prothonotary Deputy RESURGENT CAPITAL SERVICES, LP, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. DOCKET No. 07 - 2148 Civil Term JAMIE L. BOLLINGER and CIVIL ACTION - AT LAW JOHN/JANE DOE COMPLAINT IN EJECTMENT Defendants PREVIOUSLY ASSIGNED TO: P.J. BAYLEY NOTICE OF APPEAL Notice is hereby given that Jamie L. Bollinger, defendant above named, hereby appeals to the Superior Court of Pennsylvania from the ordered entered in this matter on the 30th day of January 2008. This order has been entered in the docket as evidenced by the attached copy of the docket entry. Date: February 21, 2008 submitted, ii L-? Matthew J. Eshelman, Esquire, Pa Id. 72655 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 M.Eshelman@hotmail.com Attorneys for Appellant, Jamie L. Bollinger RESURGENT CAPITAL SERVICES, LP, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. : DOCKET No. 07 - 2148 Civil Term JAMIE L. BOLLINGER and CIVIL ACTION - AT LAW JOHN/JANE DOE COMPLAINT IN EJECTMENT Defendants PREVIOUSLY ASSIGNED TO: P.J. BAYLEY REQUEST FOR TRANSCRIPT A Notice of Appeal having been filed in the above-captioned matter, the official court reporter is hereby requested to produce, certify and file the transcript in this matter, with 3?KV?y 2_3_,- Z-tCt?, particular reference being made to the hearing before the Court of Ap, in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure, and if so directed by the Court pursuant to Rule 1925(b) of those Rules. Date: February 2q, 2008 Respectfully s bmitted, Y; f Matthew J. Eshelman, Esquire, Pa Id. 72655 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 249-6900 M.Eshelman@hotmail.com Attorneys for Appellant, Jamie L. Bollinger RESURGENT CAPITAL SERVICES, LP, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. : DOCKET No. 07 - 2148 Civil Term JAMIE L. BOLLINGER and CIVIL ACTION - AT LAW JOHN/JANE DOE COMPLAINT IN EJECTMENT Defendants PREVIOUSLY ASSIGNED TO: P.J. BAYLEY PROOF OF SERVICE I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of Pennsylvania Rule of Appellate Procedure, Rule 121. Service by first class mail addressed as follows: Steven K. Eisenberg, Esq. 261 Old York Road, Suite 410 Jenkintown, PA 19046 (Attorney for Plaintiff) Service in person as follows: Hon. Edgar B. Bayley, P.J. 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (Argument Court Panel's Opinion Author) Barb Graham 4th Floor, Cumberland County Courthouse Carlisle, PA 17013 (Court Stenographer) Date: February 2q, 2008 Matthew J- E§helman, Esquire, Pa Id. 72655 P.O. Box 1080, Camp Hill, PA 17001-1080 (717) 395-8503 M.Eshelman@hotmail.com 14364802292008 Cumberland County Prothonotary's Office Page 1 PYS510 Civil Case Print 2007-02248 RESURGENT CAPITAL SERVICES L P (vs) BOLLINGER JAMIE L ET AL Reference No... Filed......... 4/16/2007 Casb Type.....: COMPLAINT - EJECTMENT Time.........: 3:31 Judgment...... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info RESURGENT CAPITAL SERVICES L P PLAINTIFF EISENBERG STEVEN K 15 S MAIN STREET 7TH FLOOR SHUGHART DALE F JR GREENVILLE SC 29601 BOLLINGER JAMIE L DEFENDANT 110 COLD SPRINGS ROAD CARLISLE PA 17013 DOE JOHN DEFENDANT 110 COLD SPRINGS ROAD CARLISLE PA 17013 DOE JANE DEFENDANT 110 COLD SPRINGS ROAD CARLISLE PA 17013 Judgment Index Amount Date Desc BOLLINGER JAMIE L 2/06/2008 JUDGMENT IN EJECT BOLLINGER JAMIE L 2/06/2008 WRIT OF POSSESSION DOE JOHN 2/06/2008 JUDGMENT IN EJECT DOE JANE 2/06/2008 JUDGMENT IN EJECT DOE JOHN 2O6Z2OO8 WRIT OF POSSESSION DOE JANE 2/06/2008 WRIT OF POSSESSION ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 4/16/2007 COMPLAINT IN EJECTMENT FILED BY STEVEN K EISENBERG ESQ FOR PLFF ------------------------------------------------------------------- 4/19/2007 SHERIFF'S FILE RETURNED FILED. Case Tye: COMPLAINT - EJECTMENT Ret Type.: Regular Litigant.: BOLLINGER JAMIE L Address..: 110 COLD SPRINGS ROAD Ctyy/St/Z CARLISLE, PA 17013 Hna To: NIKKI BOLLINGER, WIFE Shf/D ty.: RICHARD SMITH Date/ Time: 04/19/2007 0906:00 Costs....: $33.76 Pd By: STERN & EISENBERG 04/19/2007 ------------------------------------------------------------------- 4/19/2007 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT - EJECTMENT Ret Type.: Regular Litigant.: DOE JOHN/JANE Address..: 110 COLD SPRINGS ROAD Cty/St/Z CARLISLE, PA 17013 Hnd To: NIKKI BOLLINGER, OCCUPANT Shf/D ty.: RICHARD SMITH Date/ Time: 04/19/2007 0906:00 Costs....: $16.00 Pd By: STERN & EISENBERG 04/19/2007 ------------------------------------------------------------------- 5/21/2007 ANSWER WITH NEW MATTER AND COUNTERCLAIM - BY MATTHEW J ESHELMAN ATTY FOR DEFTS ------------------------------------------------------------------- 6/01/2007 RESPONSE TO NEW MATTER AND COUNTERCLAIMS - BY STEVEN K EISENBERG ATTY FOR PLFF ------------------------------------------------------------------- 6/01/2007 CERTIFICATE OF SERVICE - PLFF'S REPLY TO DEFT'S NEW MATTER AND COUNTERCLAIMS - BY STEVEN K EISENBERG ATTY FOR PLFF ------------------------------------------------------------------- 7/31/2007 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO PA RCP 1035.2 14364802292008 Cumberland County Prothonotary's Office Page PYS510 Civil Case Print 2007-02148 RESURGENT CAPITAL SERVICES L P (vs) BOLLINGER JAMIE L ET AL Reference No. Filed......... 4/16/2007 Case Type.....: COMPLAINT - EJECTMENT Time.........: 3:31 Judgment.;.... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: - BY STEVEN K EISENBERG ESQ Higher Crt 2.: ------------------------------------------------------------------- 7/31/2007 CERTIFICATE OF SERVICE - PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON MATTHEW J ESHELMAN ESQ - BY STEVEN K EISENBERG ESQ FOR PLFF ------------------------------------------------------------------- 9/04/2007 RESPONSE TO MOTION FOR SUMMARY JUDGMENT BY MATTHEW J ESHELMAN ESQ FOR DEFTS ------------------------------------------------------------------- 9/04/2007 SURREPLY OF DEFENDANTS TO NEW MATTER OF PLAINTIFF TO DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM BY MATTHEW J ESHELMAN ESQ FOR PLFF 2 ------------------------------------------------------------------- 12/10/2007 PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY STEVEN K EISENBERG ATTY FOR PLFF ------------------------------------------------------------------- 1/14/2008 CERTIFICATE OF SERVICE -COPY OF THE NOTICE FROM THE PROTHONOTARY SCHEDULEING ORAL ARGUMENT ON PLFF'S MOTION FOR SUMMARY JUDGMENT TOGETHER WITH PLFF'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION - BY STEVEN K EISENBERG ATTY FOR PLFF ------------------------------------------------------------------- 1/18/2008 ENTRY OF APPEARANCE AS LOCAL COUNSEL - IN CONJUNCTION WITH STERN AND EISENBERT LLP FOR THE LIMITED PURPOSE OF REPRESENTING AT ARGUMENT COURT TO BE HELD ON 1/23/08) ON PLFF'S MOTION FOR SUMMARY JUDGEMENT - BY DALE F SHUGHART ATTY FOR PLFF ----------------------------------------------------------------- 1/30/2008 ORDER OF COURT - 1/30/08 IN RE: MOTION OF PLFF FOR SUMMARY - - JUDGEMENT IN EJECTMENT - IS AWARDED TO RESURGENT CAPITAL SERVICES LP AGAINST JAMIE L BOLLINGER AND JOHN/JANE DOE FOR 110 COLD SPRINGS RD DICKINSON TOWNSHIP CUMBERLAND COUNTY - BY EDGAR B BAYLEY J - COPIES MAILED 1/30/08 ------------------------------------------------------------------- 2/06/2008 PRAECIPE FOR ENTRY OF JUDGMENT IN EJECTMENT FOR POSSESSION AND JUDGMENT ENTERED BY STEVEN K EISENBERG ESQ ------------------------------------------------------------------- 2/06/2008 NOTICE MAILED TO DEFENDANTS ------------------------------------------------------------------- 2/06/2008 AFFIDAVIT OF NON MILITARY SERVICE BY STEVEN K EISENBERG ESQ ------------------------------------------------------------------- 2/06/2008 CERTIFICATION UNDER RULE 237.1 BY STEVEN K EISENBERG ESQ ------------------------------------------------------------------- 2/06/2008 PRAECIPE FOR WRIT OF POSSESSION AND WRIT OF POSSESSION ISSUED 2.00 DUE CO Y STEVEN K EISENBERG ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Be Bal P is/Ad' End Bal COMPLAINT 55.00 55.00 .00 TAX ON CMPLT SETTLEMENT 8..50 .50 .00 00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 JDMT/DEFAULT 14.00 14.00 .00 WRIT OF POSSESS 24.00 24.00 .00 ------------------------ ------------ 116.50 116.50 .00 ******************************************************************************** * End of Case Information In Testimony whereof, I here unto set my hand and the seal of said Court at Carlisle, Pa. This .... s'.f..... day of...y.?z ......... Prothonotary ti' 7 r..? ;` ? _'_ ) t"i "Yl i ? i._ ? `, y t???.'y ?j ±a J 1 ??f"1 ti ? t, e ?, .t . ;` o ?, ?w ?` COMMONWEALTH OF PENNSYLVANIA Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary w Superior Court of Pennsylvania Middle District March 5, 2008 100 Pine Street. Suite 400 Harrisbur¢. PA 17101 717-772-1294 www.supenor.court.state.pa.us Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: 406 MDA 2008 Resurgent Capital Services LP V. Jamie L. Bollinger et al Appeal of: Jamie L. Bollinger Dear Mr. Long: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, Karen Reid Bramblett, Esq. Prothonotary KRC 12:46 P.M. Appeal Docket Sheet Docket Number: 406 MDA 2008 Superior Court of Pennsylvania Page 1 of 3 March 5, 2008 Resurgent Capital Services LP V. Jamie L. Bollinger et al Appeal of: Jamie L. Bollinger Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: March 3, 2008 Journal Number: Case Category: Civil Awaiting Original Record CaseType: Ejectment Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: March 19, 2008 Next Event Type: Original Record Received Next Event Due Date: May 2, 2008 3/5/2008 3023 12:46 P.M. Appeal Docket Sheet Docket Number: 406 MDA 2008 Superior Court of Pennsylvania Page 2 of 3 March 5, 2008 COUNSEL INFORMATION Appellant Bollinger, Jamie L. Pro Se: Appoint Counsel Status: IFP Status: No Appellant Attorney Information: Attorney: Eshelman, Matthew J. Bar No.: 72655 Law Firm: Address: P.O. Box 1080 Camp Hill, PA 17001-1080 Phone No.: Fax No.: Receive Mail: Yes E-Mail Address: M. Eshelman@hotmail.com Receive E-Mail: No Appellee Resurgent Capital Services LP Pro Se: Appoint Counsel Status: IFP Status: No Appellee Attorney Information: Attorney: Eisenberg, Steven Keith Bar No.: 75736 Law Firm: Stern & Eisenberg, L.L.P. Address: 410 Pavilion 261 Old York Rd Jenkintown, PA 19046 Phone No.: (215)572-8111 Fax No.: (215)572-5025 Receive Mail: Yes E-Mail Address: seisenberg@sterneisenberg.com Receive E-Mail: No FEE INFORMATION Fee Date Paid Fee Name Fee Amt Amount Receipt Number 2/29/08 Notice of Appeal 60.00 60.00 2008SPRMD000188 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: January 30, 2008 Judicial District: 9 Date Documents Received: March 3, 2008 Date Notice of Appeal Filed: February 29, 2008 Order Type: Order Entered OTN: Judge: Bayley, Edgar B. Lower Court Docket No.: 2007-02148 President Judge ORIGINAL RECORD CONTENTS 3/5/2008 3023 12:46 P.M. Appeal Docket Sheet Docket Number: 406 MDA 2008 Superior Court of Pennsylvania Paqe 3 of 3 March 5, 2008 Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By March 3, 2008 Notice of Appeal Filed Appellant Bollinger, Jamie L. March 5, 2008 Docketing Statement Exited (Civil) Middle District Filing Office 3/5/2008 3023 ?o 3 Z=3 Fr. CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Resurgent Capital Services, L.P. VS. Jamie L. Bollinger and John/Jane Doe 07-2148 Civil 406 MDA 2008 The documents comprising the record have been numbered from No.1 to 100, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 03/10/2008 . it Curti R. Long, onotar Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of Cumberland in the Commonwealth of Pennsylvania 406 MDA 2008 to No. 07-2148 Civil Term, 19 is contained the following: COPY OF Appearance Resurgent Capital Services, L.P. 15 S. Main St. 7th Floor Greenville, SC 29601 VS. Jamie L. Bollinger and John/Jane Doe 110 Cold Springs Rd. Carlisle, PA 17013 DOCKET ENTRY **See Certified Copy of the Docket Entries** Commonwealth of Pennsylvania County of Cumberland ss: In TESTIMONY WHEREOF, I have hereunto this 10th 1, Curtis R. Long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Resurgent Capital Services, L.P. Plaintiff, and Jamie L. Bollinger and John/Jane Doe Defendant , as the same remains of record before the said Court at No. 07-2148 of riyiI Term, A.D. 19 . set my hand and affixed the seal of said Court day of March A. IW2008. A?A Pr onotary 1, Edgar B. Bayley President Judge of the Nint Judicial District, composed of the County of Cumberland, do certify that Curtis R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicat as els where, and that the said record, certificate and attestation are in due form of law and mad y the pro offi ~`? Commonwealth of Pennsylvania County of Cumberland ss: Ptesident Ndgc 1, Curtis R. Long , Prothonotary bf the Court of Common Pleas in and for the said County, do certify that the Honorable Edgar B. Bayley by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set m hand and affixed the seal of said Court this 16th_ 47of march 20 ?r-thonotary 0 z a a T ? I ro y ? °? y a o? ,? ,? g o c 6 ? i? u 0 c 0 t 0 CL` ?.. ..ii ... u••w?i. .i u vv uii .r v.iavliv ..uiY ..vi.i i`. ?. cuy ?. Civil Case Print 2007-02148 RESURGENT CAPITAL SERVICES L P (vs) BOLLINGER JAMIE L ET AL Reference No..: Filed........: 4/16/2007 Case Type.....: COMPLAINT - EJECTMENT Time.........: 3:31 Judgment..... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 406 MDA 2008 Higher Crt 2.: ******************************************************************************** General Index Attorney Info RESURGENT CAPITAL SERVICES L P PLAINTIFF EISENBERG STEVEN K 15 S MAIN STREET 7TH FLOOR SHUGHART DALE F JR GREENVILLE SC 29601 BOLLINGER JAMIE L DEFENDANT 110 COLD SPRINGS ROAD CARLISLE PA 17013 DOE JOHN DEFENDANT 110 COLD SPRINGS ROAD CARLISLE PA 17013 DOE JANE DEFENDANT 110 COLD SPRINGS ROAD CARLISLE PA 17013 ******************************************************************************** Judgment Index Amount Date Desc BOLLINGER JAMIE L 2/06/2008 JUDGMENT IN EJECT BOLLINGER JAMIE L 2/06/2008 WRIT OF POSSESSION DOE JOHN 2/06/2008 JUDGMENT IN EJECT DOE JANE 2/06/2008 JUDGMENT IN EJECT DOE JOHN 2ZO6Z2008 WRIT OF POSSESSION DOE JANE 2/06/2008 WRIT OF POSSESSION * Date Entries 3 - FIRST ENTRY - 4/16/2007 COMPLAINT IN EJECTMENT FILED BY STEVEN K EISENBERG ESQ FOR PLFF ------------------------------------------------------------------- /D -/% 4/19/2007 SHERIFF'S FILE RETURNED FILED. Case Ty e: COMPLAINT - EJECTMENT Ret Type.: Regular Litigan.: BOLLINGER JAMIE L Address..: 110 COLD SPRINGS ROAD Ctyy/StjZp• CARLISLE, PA 17013 Hnd To: NIKKI BOLLINGER WIFE Shf/Dpty.: RI/CHAD SMITH Costs .... : $04 331962Pd7By: STERN & OEISENBERG 04/19/2007 ------------------------------------------------------------------- /o?-/ 3 4/19/2007 SHERIFF'S FILE RETURNED FILED. Case Type: COMPLAINT - EJECTMENT Ret Type.: Regular Litigant.: DOE JOHN JANE Address..: 110 COLD SPRINGS ROAD Cty/St/Z • CARLISLE, PA 17013 Hnd To: NIKKI BOLLINGER, OCCUPANT Shf/D ty.: RICHA D SMITH Date/Time: 04/12007 0906:00 Costs....: $16.00 Pd By: STERN & EISENBERG 04/19/2007 ----------------------------------------- /L/- 5/21/2007 ANSWER WITH NEW MATTER AND COUNTERCLAIM - BY MATTHEW J ESHELMAN ATTY FOR DEFTS ----------------------------------------------------------------- 2 6-,31/ 6/01/2007 RESPONSE TO NEW MATTER AND COUNTERCLAIMS - BY STEVEN K EISENBERG ATTY FOR PLFF ------------------------------------------------------------ 3 6/01/2007 CERTIFICATE OF'SERVICE - PLFF'S REPLY TO DEFT'S NEW-MATTER-AND ----- COUNTERCLAIMS - BY STEVEN K EISENBERG ATTY FOR PLFF ------------------------------------------------------------------- ??_ js 7/31/2007 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO PA RCP 1035.2 ? i.l -+.?i ?. uiiw?..t ?. uaau vv uaa ?.Y rLV ?aa vaav .uiY o va. i.l.?? ruyc L Civil Case Print 2007-02148 RESURGENT CAPITAL SERVICES L P (vs) BOLLINGER JAMIE L ET AL Reference No..: Filed........: 4/16/2007 Case Type.....: COMPLAINT - EJECTMENT Time.........: 3:31 Judgment..... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 Case Comments -----------Higher Crt 1.: 406 MDA 2008 - BY STEVEN K EISENBERG ESQ Higher Crt 2.: ------------------------------------------------------------------- $l0 ION FOR SUMMA 7/31/2007 OONRMATTHEWEJ ESHELMMANEESQP- BYTSTEVENIFF'S ESQRFORUPLFFNT ------------------------------------------------------------------- 9/04/2007 RESPONSE TO MOTION FOR SUMMARY JUDGMENT BY MATTHEW J ESHELMAN ESQ FOR DEFTS ------------------------------ l0 7`-101/ 9/04/2007 SURREPLY OF DEFENDANTS TO NEW MATTER OF PLAINTIFF TO DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM BY MATTHEW J ESHELMAN ESQ FOR PLFF ------------------------------------------------------------------- 7D 12/10/2007 PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY STEVEN K EISENBERG ATTY FOR PLFF ------------------------------------------------------------------- 7/ 1/14/2008 'CERTIFICATE OF SERVICE -COPY OF THE NOTICE FROM THE PROTHONOTARY SCHEDULEING ORAL ARGUMENT ON PLFF'S MOTION FOR SUMMARY JUDGMENT TOGETHER WITH PLFF'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION - BY STEVEN K EISENBERG ATTY FOR PLFF -------------------------------------------------------------- ]a 1/18/2008 ENTRY OF APPEARANCE AS LOCAL COUNSEL - IN CONJUNCTION WITH STERN AND EISENBERT LLP FOR THE LIMITED PURPOSE OF REPRESENTING AT ARGUMENT COURT TO BE HELD ON 1/23/08J ON PLFF'S MOTION FOR SUMMARY JUDGEMENT - BY DALE F SHUGHART ATTY FOR PLFF ---------------------------------------------------------- =-------- 1/30/2008 OPINION AND ORDER OF COURT - 1/30/08 IN RE: MOTION OF PLFF FOR SUMMARY JUDGEMENT IN EJECTMENT S AWARDED TO RESURGENT CAPITAL SERVICES LP AGAINST JAMIE L BOLLINGER AND JOHN/JANE DOE FOR 110 COLD SPRINGS RD DICKINSON TO SHIP CUMBERLAND COUNTY - BY EDGAR B BAYLEY J - COPIES MAILED 1/30/08 ---------------------------------------------------------- ??- 3 2/06/2008 PRAECIPE FOR ENTRY OF JUDGMENT IN EJECTMENT FOR POSSESSION AND JUDGMENT ENTERED BY STEVEN K EISENBERG ESQ ------------------------------------------7------------------------ 2/06/2008 NOTICE MAILED TO DEFENDANTS ------------------------------------------------------------------- 2/06/2008 AFFIDAVIT OF NON MILITARY SERVICE BY STEVEN K EISENBERG ESQ ------------------------------------------------------------------- ?S' 2/06/2008 CERTIFICATION UNDER RULE 237.1 BY STEVEN K EISENBERG ESQ --------------7---------------------------------------------------- 7 g1 2/06/2008 $2AE IDUEFORR WRIT OF POSSESSION AND WRIT OF POSSESSION ISSUED BY STEVEN K EISENBERG ESQ ------------------------------------------------ ------------------- - (p 2/29/2008 NOTICE OF APPEAL - BY MATTHEW J ESHELMAN ATTY FOR APPELLANT JAMIE L BOLLINGER ------------------------------------------------------------------- g',.-f,0U 3/06/2008 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 406 MDA 2008 -------------------------------------------------------------------- 3/10/2008 NOTICE OF DOCKET ENTRIES MAILED TO STEVEN KEITH EISENBERG ESQ AND MATTHEW J ESHELMAN ESQ - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Be *Bal***Pmts**/Ad? End Bal ******************************** **** **** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 JDMT/DEFAULT 14.00 14.00 .00 WRIT OF POSSESS 24.00 24.00 .00 APPEAL HIGH CT 48.00 48.00 .00 ------------------------ ------------ 164.50 164.50 .00 2007-02148 RESURGENT CAPITAL SERVICES L P (vs) BOLLINGER JAMIE L ET AL Reference No..: Filed........: 4/16/2007 Case T e.....: COMPLAINT - EJECTMENT Jud men Time..,..... 3:31 Judge Assigned 00 Execution Date 0/00/0000 Disposed Den e : Jury Trial.... sc. sposed ------------ Case Comments --------- Di ---- CDate. 0/00/0000 ---- Higher rt l.: 406 MDA 2008 Higher Crt 2.: ******************************************************************************** * End of Case Information TRUE COPY F^?A ? R 0^RD In Testimony whereof, I Erc unto sot my hand and the seal of said Court at Cariis!, Pa. This ....AO........ day of....*44e .., Prothonotary 41 o?•zlq8 r- e "a By virtue of this writ, on the day of I caused the within named , to have possession of the premises described with the appurtenances, and Writ of Pr+° n rotiirncrl Stayed this date, due to - Be19kr-1111t F-'it f) J Sworn and subscribed to before me this Day of , S -------------- Sht? By ? Cj yn e , A Sheriff's Return: Advance Costs: 150.00 ` Sheriff's Costs: 62.75 Docketing 18.00 87 25 Poundage 1.23 . Prothy 2.00 Milage Surcharge 11.52 30.00 Refunded to Atty on 3/20/08 62.75 tff exnll/? ?? Lz?3 2 of, No 07-2148 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RESURGENT CAPITAL SERVICES, L.P. vs. JAMIE L. BOLLINGER AND JOHN /JANE DOE 110 COLD SPRINGS ROAD CARLISLE, PA 17013 WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Att'y $ 166.26 Plff (s) $ Prothy $ 2.00 Sheriff $ Plaintiff (s) attorney name and address: STEVEN K. EISENBERG, ESQUIRE STERN AND EISENBERG 261 OLD YORK ROAD JENKINTOWN, PA 19046 215-572-8111 I.D. #75736 Attorney for Plaintiff (s) Where papers may be served By virtue of this writ, on the day of . I caused the within named to have possession of the premises described with the appurtenances, and So Answers, Sworn and subscribed to before me this Day of By Sheriff i''" lot 2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RESURGENT CAPITAL SERVICES. L.P. VS. No. 07-2148 Civil Tenn JAMIE L. BOLLINGER AND JOHN/JANE DOE Costs Attorney's $ 166.26 Plaintiff's $ Prothonotary $ 2.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) RESURGENT CAPITAL SERVICES, L.P. being: (Premises as follows): 110 COLD SPRINGS ROAD, CARLISLE, PA 17013 (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. Curtis 4. Long, P notary Common Pleas Court of Cu erland County, PA Date FEBRUARY 6, 2008 (Seal) Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 C ---------------------------------------------- 1015-4/04 10/1/99 Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary .,v y . t Superior Court of Pennsylvania Middle District April 21, 2008 RE: Resurgent Capital Serv. v. Bollinger, J. et al No. 406 MDA 2008 Trial Court Docket Number: 2007-02148 Dear : 100 Pine Street. Suite 400 Harrisbure. PA 17101 717-772-1294 www. superior. court, state.pa.us Enclosed please find a certified copy of an order dated April 21, 2008 entered in the above-captioned matter. Pursuant to the foregoing Order a certified copy of same, along with the original record will be forwarded to the trial court in due course. Very truly yours, 4%jt - 4?7 l James D. McCullough, Esq. Deputy Prothonotary KRC cc: Steven Keith Eisenberg, Esq. The Honorable Edgar B. Bayley President Judge Mr. Curtis R. Long Prothonotary No.: 406 MDA 2008 Carbon Copy Recipient List Addressed To: Matthew J. Eshelman, Esq. P.O. Box 1080 Camp Hill, PA 17001-1080 Carbon Copied: Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Steven Keith Eisenberg, Esq. Stern & Eisenberg, L.L.P. 410 Pavilion 261 Old York Rd Jenkintown, PA 19046 The Honorable Edgar B. Bayley President Judge Court of Common Pleas of Cumberland County Cumberland County Courthouse, One Courthouse Sq Carlisle, PA 17013 1013 -10/99 1011199 Resurgent Capital Services, LP V. Jamie L. Bollinger, et al. ORDER IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County No. 2007-02148) No. 406 MDA 2008 Filed: April a?/ , 2008 Appellant, defendant below, has filed a notice of appeal from the January 30, 2008 order granting summary judgment in favor of plaintiff below. An appeal lies only from a final order unless otherwise permitted by rule or statute. McCutcheon v. Philadelphia Electric Co., 788 A.2d 345 (Pa. 2002). A final order is any order that disposes of all claims and all parties. See Pa.R.A.P. 341(b)(1) and Note (order dismissing complaint but leaving pending a counterclaim is no longer appealable as a final order); see, e.g., Druot v. Coulter, A.2d 2008 WL 786832 (Pa. Super. Mar. 26, 2008) (quashing appeal from grant of summary judgment where counterclaims remained pending in trial court); Moore Motors, Inc. v. Heaudry, 775 A.2d 869 (Pa. Super. 2001) (same). As the record indicates that a counterclaim remains pending below, the above-captioned appeal is hereby QUASHED. Per Curiam TRUE COPY FROM RECORD AttestAPR 212008 ^C eputy Prothonotary Superior Court. of PA - Middle District ?i ?=3 '...'E ?? f : 1? .? , ?..?? 1 ? .?°'~ ?1 "' ;? ? '? e 5? .'.. ?, Superior Court of Pennsylvania Karen Reid Bramblett, Esq. Middle District Prothonotary James D. McCullough, Esq. April 21, 2008 Deputy Prothonotary Certificate of Remittal/Remand of Record TO: Mr. Curtis R. Long Prothonotary RE: Resurgent Capital Serv. v. Bollinger, J. et al No.406 MDA 2008 Trial Court/Agency Dkt. Number: 2007-02148 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: 100 Pine Street. Suite 400 Harrisburg, PA 17101 717-772-1294 www.superior. court. state.pa.us Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Part Filed Date Description March 11, 2008 1 Date of Remand of Record: MAY 29 2we ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Signature Printed Name Date /krc " : r . -. Resurgent Capital Services, LP V. Jamie L. Bollinger, et al. ORDER IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County No. 2007-02148) No. 406 MDA 2008 Filed: April a?/ 2008 Appellant, defendant below, has filed a notice of appeal from the January 30, 2008 order granting summary judgment in favor of plaintiff below. An appeal lies only from a final order unless otherwise permitted by rule or statute. McCutcheon v. Philadelphia Electric Co., 788 A.2d 345 (Pa. 2002). A final order is any order that disposes of all claims and all parties. See Pa.R.A.P. 341(6)(1) and Note (order dismissing complaint but leaving pending a counterclaim is no longer appealable as a final order); see, e.g., Druot v. Coulter, A.2d 2008 WL 786832 (Pa. Super. Mar. 26, 2008) (quashing appeal from grant of summary judgment where counterclaims remained pending in trial court); Moore Motors, lnc. v. Beaudry, 775 A.2d 869 (Pa. Super. 2001) (same). As the record indicates that a counterclaim remains pending below, the above-captioned appeal is hereby QUASHED. Per Curiam TRUE COPY FROM RECORD Attest: MO A 9 M --ri C? "O?' Deputy "Prothonotary Superior Co. ! of PA - Middle District ? a ? 'l'i - cx_s ? ?+ Y ? P ? .... ? +.w _ _? °' A F • w ;? 'ti >f?} • CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYLVANIA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Resurgent Capital Services, L.P. vs. Rel~eived in Superbr Court Jamie L. Bollinger and John/Jane Doe MAR 1 0 2008 07-2148 Civil 406 MDA 2008 M~O~(„E The documents comprising the record have been numbered from No.l to 100, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 03/10/2008 . ---- Curti .Long, trot rstiotar Regina Lebo ff An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title •