Loading...
HomeMy WebLinkAbout07-2570PHELAN HALLINAN &SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 ONE PENN CENTER PLAZA, SUITE 1400 ATTORNEY FOR PLAINTIFF PHILADELPHIA, PA 19103 (2151 563-7000 153767 CITIMORTGAGE, INC., SB/M TO PRINCIPAL RESIDENTIAL MORTGAGE, INC. 1000 TECHNOLOGY DRIVE MAIL STATION O'FALLON, MO 63368-2240 Plaintiff v. GREGORY R. DERK MARIA A. DERK A/K/A MARIA ANN DERK 539 HILLCREST DRIVE CARLISLE, PA 17013 COURT OF COMMON PLEAS CIVIL DIVISION TERM ~y NO. d7 - o~s-!U C.: tc~~~~ CUMBERLAND COUNTY Defendants CIVIL ACTION -LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 153767 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE 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. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9108 File #: 153767 IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 et seq. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS File #: 153767 COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL ESTATE. File ~: 153767 1. Plaintiff is CITIMORTGAGE, INC., SB/M TO PRINCIPAL RESIDENTIAL MORTGAGE, INC. 1000 TECHNOLOGY DRIVE MAIL STATION O'FALLON, MO 63368-2240 2. The name(s) and last known address(es) of the Defendant(s) are: GREGORY R. DERK MARIA A. DERK A/K/A MARIA ANN DERK 539 HILLCREST DRIVE CARLISLE, PA 17013 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 03/20/1998 mortgagor(s) made, executed, and delivered a mortgage upon the premises hereinafter described to UNION FEDERAL SAVINGS BANK OF INDIANAPOLIS, A FEDERAL SAVINGS BANK which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Book: 1440, Page: 918. By Assignment of Mortgage recorded 08/24/2000 the mortgage was Assigned To PLAINTIFF which Assignment is recorded in Assignment Of Mortgage Book No. 653, Page 119. The mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 4. The premises subject to said mortgage is described as attached. File #: 153767 5. 6. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 10/01/2006 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. The following amounts are due on the mortgage: Principal Balance $79,651.48 Interest $3,513.78 09/01/2006 through 05/01/2007 (Per Diem $14.46) Attorney's Fees $1,250.00 Cumulative Late Charges $202.58 03/20/1998 to 05/01/2007 Cost of Suit and Title Search 550.00 Subtotal $85,167.84 Escrow Credit $0.00 Deficit $190.00 Subtotal $190.00 TOTAL $85,357.84 7 If the mortgage is reinstated prior to a Sheriff s Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. File #: 153767 8. Plaintiff is not seeking a judgment of personal liability (or an in personam judgment) against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. 9. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. File #: 153767 10. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $85,357.84, together with interest from 05/01/2007 at the rate of $14.46 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. PHELAN HALLINAN &SCHMIEG, ~~~ ~ By: /s/Francis S. Hallinan LAWRENCE T. PHELAN, ESQUIRE DANIEL G. SCHMIEG, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff File #: 153767 LEGAL DESCRIPTION All THAT CERTAIN tract or parcel of land and premises, situate, lying and being in the Township of South, MIDDLETON in the County of Cumberland and Commonwealth of Pennsylvania, more particularly described as follows: BEGINNING at a point on the Eastern side of Hillcrest Drive at the dividing line between Lots Nos. 8 and 9 on the hereinafter mentioned Plan of Lots; thence by said dividing line, North 75 degrees 24 minutes East, 148.65 feet to a point; thence South 14 degrees 36 minutes East, 100 feet to a point; thence by the dividing line between Lots Nos. 7 and 8 on said Plan of Lots, South 75 degrees 24 minutes West, 148.65 feet to a point on the Eastern side of Hillcrest Drive; thence by the Eastern side of said Drive, North 14 degrees 36 minutes West, 100 feet to the place of BEGINNING. BEING Lot No. 8 of Section 'F' of the said Plan of Lots known as Forge Road Acres recorded in the hereinafter named Recorder's Office in Plan Book 22, Page 80, on which there is erected a brick-cased ranch type dwelling house known as 539 Hillcrest Drive. SUBJECT, however, to the restrictions and conditions recorded in the hereinafter named Recorder's Office in Miscellaneous Record Book 166, Page 512, except as follows: File #: 153767 1. Any dwelling house constructed on the above lot shall have not less that 1100 square feet of living area. 2. The exterior dimensions of any ranch type dwelling house constructed on the above-described lot shall be not less that 26 feet by 44 feet, excluding garage or carport. 3. A garage or carport at least 14 feet wide shall be erected with each dwelling house. BEING the same premises which Kenneth P. Lehman, Larry Lehman, and C. Elaine Novak, Co- Executors of the Last Will and Testament of Jean A. Davis, by Deed dated February 25, 1987 and recorded March 2, 1987in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book N32', Page 67, granted and conveyed unto Robert E. Beaman and Carol J. Beaman, his wife, Grantors herein. PROPERTY BEING: 539 HILLCREST DRIVE File #: 153767 FRANCIS S. HALLINAN, ESQUIRE hereby states that he is attorney for PLAINTIFF in this matter, that Plaintiff is outside the jurisdiction of the court and or the Verification could not be obtained within the time allowed for the filing on the pleading, that he is authorized to make this verification pursuant to Pa. R. C. P. 1024 (c) and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are based upon information supplied by Plaintiffand are true and correct to the best of his knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. DATE: ~//~P~ FRANCIS S. HALLiNAN, ESQUIRE Attorney for Plaintiff w J I ""~~ C) r iry• '. (: ~ l_ ,` ~- (` `!.°. ~ ~ ~ ~ ~ m -~ m ~ ir, ~ t. (T~ ""~) i_4 -4 ,~ -....1 PHELAN HALLINAN £~ SCHMIEG, LLP Lawrence T. Phelan, Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id No. One Penn Center at Suburban Station ATTORNEY FOR PLAINTIFF 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 Citimortgage, Inc., s/b/m to Principal Court of Common Pleas Residential Mortgage, Inc. Civil Division Plaintiff Cumberland County vs No. 07-2570 Civil Term Gregory R. Derk Maria A. Derk, PHS# 153767 a/k/a Maria Ann Derk Defendant TO THE PROTHONOTARY: PRAECIPE Please mark the above referenced case Discontinued and Ended without prejudice. Please mark the above referenced case Settled, Discontinued and Ended. Please mirk Judgments satisfied and the Action settled, discontinued and ended. Please Vacate the judgment entered and mark the action discontinued and ended without prejudice. X Please withdraw the complaint and mark the action discontinued and ended without prejudice. ~,_~ s ;' Date: May 18, 2007 Francis Hallinan Attorney for Plaintiff ~.-~ ~~ ~ ~ " ~:} "F! ~, ~ Ti ---i T, .--- ~;. _~ ~ '"C"? SHERIFF'S RETURN - REGULAR ` 'SASE NO: 2007-02570 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CITIMORTGAGE INC ET AL VS DERK GREGORY R ET AL STEPHEN BENDER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon DERK GREGORY R the DEFENDANT at 1615:00 HOURS, on the 11th day of May 2007 at 539 HILLCREST DRIVE CARLISLE, PA 17013 MARIA A DERK, by handing to ADULT IN CHARGE a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 4.80 Affidavit .00 Surcharge 10.00 00 ~~3b~b 7 ~., ~ 3 0 Sworn and Subscibed to before me this day So Answers: ~, R. Thomas Kline 05/14j2007 PHELAN HALLINAN SCHMIEG By: D uty S eriff of A.D. SHERIFF'S RETURN - REGULAR -• `CASE NO: 2007-02570 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CITIMORTGAGE INC ET AL VS DERK GREGORY R ET AL STEPHEN BENDER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon DERK MARIA A A/K/A MARIA ANN DERK rhP DEFENDANT at 1615:00 HOURS, on the 11th day of May 2007 at 539 HILLCREST DRIVE CARLISLE, PA 17013 MARIA A DERK by handing to a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 61~b'b~ ~ .00 / 16.00 Sworn and Subscibed to before me this day of -- So Answers: R. Thomas Kline 05/14/2007 PHELAN HALLINAN SCHMIEG By. i~ Deputy Sheriff A.D.