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HomeMy WebLinkAbout07-3946PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 154786 HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 3476 STATEVIEW BLVD FORT MILL, SC 29715 Plaintiff V. JOSHUA R. MITTEN 2065 RITNER HIGHWAY CARLISLE, PA 17013 Defendant ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. CUMBERLAND COUNTY CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 154786 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 4: 154786 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)9 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 #: 154786 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 #: 154786 1. Plaintiff is HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 3476 STATEVIEW BLVD FORT MILL, SC 29715 2. The name(s) and last known address(es) of the Defendant(s) are: JOSHUA R. MITTEN 2065 RITNER HIGHWAY CARLISLE, PA 17013 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 05/13/2005 mortgagor(s) made, executed, and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS A NOMINEE FOR FREMONT INVESTMENT & LOAN which mortgage is'recorded in the Office of the Recorder of CUMBERLAND County, in Book: 1907, Page: 831. Said Assignment of Mortgage was re-recorded on 07/26/2005 in Assignment of Mortgage Book No. 1916, Page 192. PLAINTIFF is now the legal owner of the mortgage and is in the process of formalizing an assignment of same. The mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 4. The premises subject to said mortgage is described as attached. File #: 154786 5. 6. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 02/01/2007 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 $77,114.54 Interest $2,778.86 01/01/2007 through 06/15/2007 (Per Diem $16.74) Attorney's Fees $1,250.00 Cumulative Late Charges $85.77 05/13/2005 to 06/15/2007 Cost of Suit and Title Search 550.00 Subtotal $81,779.15 Escrow Credit $0.00 Deficit $39.47 Subtotal 39.47 TOTAL $81,818.62 7 If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. File #: 154786 B. 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. 10. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. File #: 154786 11. This action does not come under Act 91 of 1983 because the mortgage premises is not the principal residence of Defendant(s). WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $81,818.62, together with interest from 06/15/2007 at the rate of $16.74 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, LLP By: /s Trancis S. Hallinan LAWRENCE T. PHELAN, ESQUIRE DANIEL G. SCHMIEG, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff File #: 154786 LEGAL DESCRIPTION All that certain property located in the Second Ward of the Borough of Carlisle, Cumberland County, Pennsylvania, and being known as 150 South Bedford Street, more particularly bounded and described as follows: BEGINNING at a point on the West side of South Bedford Street at line of property herein and property formerly of Marie Stough; thence South 14.7 feet to the center line of the partition wall between Nos. 150 and 152 South Bedford Street (No. 152 now or formerly being the property of Leon V. Kitner and Ruth A. Kitner); thence westwardly and partly through the said partition wall 33.2 feet to a break in the fence line; thence Southwestwardly 5.2 feet to another break in the fence line; thence Southwestwardly 24.7 feet to property now or formerly of John York; thence Northwardly along said York property 22.5 feet to a point on line of property now or formerly of Marie Stough; thence Eastwardly 60 feet, more or less to a point the Place of BEGINNING. AND BEING the premises described in Cumberland County Deed book 268, page 4332. PARCEL#: 03-21-0320-158 PROPERTY BEING: 150 SOUTH BEDFORD STREET File #: 154786 VERIFICATION FRANCIS S. HALLINAN, ESQUIRE hereby states that he is attorney for PLAINTIFF in this matter, that Plaintiff is outside the jurisdiction of the court and or the Verification could not be obtained within the time allowed for the filing 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 Plaintiff and 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 unworn falsification to authorities. FRANCIS S. HALLINAN, ESQUIRE Attorney for Plaintiff DATE: I-- --z- co N U n T -Fri ?. ?J r .i 06-3 SHERIFF'S RETURN - REGULAR L r • CASE NO: 2007-03946 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HSBC BANK USA NATIONAL ASSOCIA VS MITTEN JOSHUA R GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE MITTEN JOSHUA R was served upon the DEFENDANT , at 1742:00 HOURS, on the 3rd day of July , 2007 at 126 MEALS DRIVE CARLISLE, PA 17013 MIRIAM MITTEN, MOTHER 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. Additional Comments 150 S BEDFORD STREET CARLISLE IS VACANT. Sheriff's Costs: Docketing 6.00 Service 9.60 Affidavit .00 Surcharge 10.00 .00 F)iolb-?q,, 25.60 Sworn and Subscibed to before me this So Answers: ?000AI-94wle?- R. Thomas Kline 07/05/2007 PHELAN HALLINAN SCHMIEG By. day Deputy Sh ff of A. D. SHERIFF'S RETURN - NOT FOUND CASE NO: 2007-03946 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND HSBC BANK USA NATIONAL ASSOCIA VS MITTEN JOSHUA R R. Thomas Kline Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT MITTEN JOSHUA R but was unable to locate Him in his bailiwick. He therefore returns the l"1^WNR T T TTTT 1kfi^"M nnna the within named DEFENDANT 2065 RITNER HIGHWAY CARLISLE, PA 17013 MITTEN JOSHUA R NOT FOUND , as to 2065 RITNER HIGHWAY CARLISLE IS VACANT. Sheriff's Costs: Docketing Service Not Found Surcharge ,0+14- J So ans 18.00 4.80 5.00 s )el ine 10.00 Sheriff of Cu rland County .00 37.80 PHELAN HALLINAN SCHMIEG 07/05/2007 Sworn and Subscribed to before me this day of A. D. 1 PHELAN HALLINAN & SCHNIIEG, L.L.P. By: DANIEL G. SCH MG Identification No. 62205 Attorney for Plaintiff ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 3476 STATEVIEW BLVD. FORT MILL, SC 29715 CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION Plaintiff, V. JOSHUA R. MITTEN 126 MEALS DRIVE CARLISLE, PA 17013 Defendant(s). NO. 07-3946 PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter an in rem judgment in favor of the Plaintiff and against JOSHUA R. MITTEN , Defendant(s) for failure to file an Answer to Plaintiffs Complaint within 20 days from service thereof and for Foreclosure and Sale of the mortgaged premises, and assess Plaintiffs damages as follows: As set forth in Complaint $81,818.62 Interest from 06/16/07 to 08/21/07 $1,121.58 TOTAL $82,940.20 I hereby certify that (1) the addresses of the Plaintiff and Defendant(s) are as shown above, and (2) that notice has been given in accordance with Rul 76ANIEL"G. 1opy attached. J SCHMIE , E Attorney for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. n DATE: 8 Al P. " 'Oxa O PROTHY 154786 PHELAN HALLINAN & SCHMIEG, LLP By: Lawrence T. Phelan, Esq., Id. No. 32227 ATTORNEY FOR PLAINTIFF Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Philadelphia, PA 19103 (215) 563-7000 HSBC BANK USA, NATIONAL ASSOCIATION, AS : COURT OF COMMON PLEAS TRUSTEE FOR HOME EQUITY LOAN TRUST. SERIES ACE 2005-HE5 : CIVIL DIVISION Plaintiff Vs. JOSHUA R MITTEN Defendant TO: JOSHUA R. MITTEN 126 MEAL S DRIVE CARLISLE, PA 17013 : CUMBERLAND COUNTY NO. 07-3946-CIVIL TERM r -?n .11' P t U-144 y Fl" DATE OF NOTICE: JULY 24, 2007 THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT THE INDEBTEDNESS REFERRED TO HEREIN, AND ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE.IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY AS ENFORCEMENT OF LIEN AGAINST PROPERTY. IMPORTANT NOTICE CUMBERLAND COUNTY LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (800)990-9108 . A-9 --. S. HALLINAN, ESQUIRE Attorneys for Plaintiff YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. 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. 4 PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 ATTORNEY FOR PLAINTIFF ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN CUMBERLAND COUNTY TRUST SERIES ACE 2005-HE5 COURT OF COMMON PLEAS 3476 STATEVIEW BLVD. CIVIL DIVISION Plaintiff, NO. 07-3946 v. JOSHUA R. MITTEN Defendant(s). VERIFICATION OF NON-MILITARY SERVICE DANIEL G. SCHIVIIEG, ESQUIRE, hereby verifies that he is attorney for the Plaintiff in the above-captioned matter, and that on information and belief, he has knowledge of the following facts, to wit: (a) that the defendant(s) is/are not in the Military or Naval Service of the United States or its Allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act of Congress of 1940, as amended. (b) that defendant JOSHUA R. MITTEN is over 18 years of age and resides at, 126 MEALS DRIVE, CARLISLE, PA 17013. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. _J Attorney for Plaintiff r ? --?,;? i?" ? t's'? rte"' ?. 7cm `yCi ? 3 iFt ' ?=' c u' ? So L e t L (Rule of Civil Procedure No. 236) - Revised IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-11E5 3476 STATEVIEW BLVD. CPAL DIVISION Plaintiff, V. JOSHUA R. MITTEN CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 07-3946 Defendant(s). Notice is given that a Judgment in the above-captioned matter has been entered against you on . 2011 . By: K • 0a 'DEPUTY If you have any questions concerning this matter, please contact: Attorney for Plaintiff ONE PENN CENTER AT SUB STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 "THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY." . CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 PRAECIPE FOR WRIT OF EXECUTION - (MORTGAGE FORECLOSURE) P.R.C.P. 3180-3183 HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-11E5 Plaintiff, No. 07-3946 V. JOSHUA R. AHTTEN Defendant(s). TO THE DIRECTOR OF THE OFFICE OF THE PROTHONOTARY: Issue writ of execution in the above matter: Amount Due Interest from 08/21/07 to DECEMBER 5, 2007 -(per diem -$13.63) Add'1 Costs TOTAL $82,940.20 $1,444.78 and Costs $2.158.50 $86,543.48 `/l.Jf-Y \1LL V• VV1f1.11.LV, L? 1ZW One Penn Center at Suburban Cation 1617 John F. Kennedy Boulevard, uite 1400 Philadelphia, PA 19103-1814 Attorney for Plaintiff Note: Please attach description of property.No. IMPORTANT NOTICE: This property is sold at the direction of the. plaintiff. It may not,be sold'in the absence of a representative of the plaintiff at the Sheriff's Sale. The sale must be postponed ,or- stayed in the event that a.representative of the plaintiff is not present at the sale. 154786 Q tIa ?, ? v v 04 v '? a W M d W v ,. 5 a 773 "'?? ? Sts rc ?? c ? C7 f 1 j ? DESCRIPTION ALL THAT CERTAIN property located in the Second Ward of the Borough of Carlisle, Cumberland County, Pennsylvania, and being known as 150 South Bedford Street, more particularly bounded and described as follows: BEGINNING at a point on the West side of South Bedford Street at line of property herein conveyed and property formerly of Marie Stough; thence South 14.7 feet to the center line of the partition wall between Nos. 150 and 152 South Bedford Street (No. 152 now or formerly being the property of Leon V. Kitner and Ruth A. Kitner); thence westwardly and partly through the said partition wall 33.2 feet to a break in the fence line; thence Southwestwardly 5.2 feet to another break in the fence line; thence Southwestwardly 24.7 feet to property now or formerly of John York; thence Northwardly along said York property 22.5 feet to a point on line of property now or formerly of Marie Stough; thence Eastwardly 60 feet, more or less to a point the Place of BEGINNING. BEING the same premises which Jerry W. Swartz, by Deed dated July 30, 2002 which Deed is recorded in the Office of the Recorder of Deeds in and for Cumberland County in Deed Book 252, Page 4660, granted and conveyed to Tonya M. Bream, single person, Grantor herein. Premises: 150 South Bedford Street, Carlisle, PA 17013 Carlisle Borough 2nd Ward Cumberland County Pennsylvania PARCEL IDENTIFICATION NO: 03-21-0320-158 CONTROL #: 03000324 TITLE TO SAID PREMISES IS VESTED IN Joshua R. Mitten, single person, by Deed from Tonya M. Bream, single person, dated 04/27/2005, recorded 05/16/2005, in Deed Book 268, page 4332. PtIELAN HALLINAN & SCH AEG, L.L.P. By: DANIEL G. SCHNIIEG Identification No. 62205 ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 Plaintiff, V. JOSHUA R. MITTEN Defendant(s). ATTORNEY FOR PLAINTIFF CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 07-3946 CERTIFICATION DANIEL G. SCHMIEG, ESQUIRE, hereby verifies that he is attorney for the Plaintiff in the above-captioned matter, and that the premises are not subject to the provisions of Act 91 because it is: Q an FHA mortgage ( ) non-owner occupied ( ) vacant (X) Act 91 procedures have been fulfilled This certification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn fakifimtinn to anthnritiec_ tinorney for riainun C) p -r? -V C: -n S ' 4 ?1r +? i Y ? CJ HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 v. Plaintiff, JOSHUA R. MITTEN Defendant(s). CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 07-3946 AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. l) HSBC BANK USA. NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5, Plaintiff in the above action, by its attorney, DANIEL G. SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at.150 SOUTH BEDFORD STREET, CARLISLE, PA 17013. 1. Name and address of Owner(s) or reputed Owner(s): Name JOSHUA R. MITTEN Last Known Address (if address cannot be reasonably ascertained, please indicate) 126 MEALS DRIVE CARLISLE, PA 17013 2. Name and address of Defendant(s) in the judgment: Same as above 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name PA DEPT. OF REVENUE BUREAU OF COMPLIANCE CLEARANCE SUPPORT SECTION Last Known Address (if address cannot be reasonably ascertained, please indicate) ATTN: SHERIFF SALES DEPT. 281230 HARRISBURG, PA 17128 F-- 4. Name and address of last recorded holder of every mortgage of record: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) RODGER C. DIEHL, JR. AND 13 FOX HOLLOW LANE SHARON A. DIEHL CARISLE, PA 17013 5. Name and address of every other person who has any record lien on the property: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) Tenant/Occupant Domestic Relations of Cumberland County Commonwealth of Pennsylvania Department of Welfare 150 SOUTH BEDFORD STREET CARLISLE, PA 17013 13 North Hanover Street Carlisle, PA 17013 PO Boa 2675 Harrisburg, PA 17105 I verify that the statements made in this affidavit are true and correct to the best of my personhl knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsw rn falsifi?ation to authorities. 1 August 21, 2007 DATE EL G. SCHMIEG, ES Attorney for Plaintiff r-? Ca ? 5 21- C 7, PHELAN HALLINAN & SCHMIEG, LLP BY: Lawrence T. Phelan, Esq., Id. No. 32227 ATTORNEY FOR PLAINTIFF Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Philadelphia, PA 19103 (215) 563-7000 HSBC BANK USA, NATIONAL ASSOCIATION, AS : COURT OF COMMON PLEAS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 : CIVIL DIVISION Plaintiff Vs. JOSHUA R MITTEN Defendant : CUMBERLAND COUNTY :NO. 07-3946-CIVIL TERM TO: JOSHUA R. MITTEN 150 SOUTH BEDFORD STREET CARLISLE, PA 17013 DATE OF NOTICE: JULY 24, 2007 FILE C ru'T'ft THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT THE INDEBTEDNESS REFERRED TO HEREIN, AND ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE.IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY AS ENFORCEMENT OF LIEN AGAINST PROPERTY. IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. 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. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (800)990-9108 q?? S• _ ` iiNN-CIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff HSBC BANK USA, NATIONAL ASSOCIATION, CUMBERLAND COUNTY AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 No. 07-3946 Plaintiff, V. JOSHUA R. MITTEN Defendant(s). August 21, 2007 TO: JOSHUA R. MITTEN 126 MEALS DRIVE CARLISLE, PA 17013 **THIS FIRMIS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBTAND ANYINFORMA77ON OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOUHAYE PREYIOUSLYRECEWYED A DISCHARGE IN BANKRUP7UYAND THIS DEBT WAS NOT REAFFIRMED, THIS ISNOTAND SHOULD NOT BE CONSTRUED TO BE ANATTEMPT TO COLLECTA DEBT, BUT ONLYENFORCEMENT OFA LIENAGAINST PROPERTY. ** Your house (real estate) at, 150 SOUTH M FORD STREET. CARLISLE. PA 17013, is scheduled to be sold at the Sheriffs Sale on PMMBER 5, 2007 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $940„x. g obtained by HSBC BANK USA. NAT ONAI,. ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-M (the mortgagee) against you. In the event the sale is continued, an announcement will be made at said sale in compliance with Pa.R.C.P., Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriffs Sale, you must take immediate action: 1. The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: (215) 563-7000. 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause. 3. You may also be able to stop the sale through other legal proceedings. t' You may need an attorney to assert your rights. The sooner you contact one, the more chance you will have of stopping the sale. (See notice on page two on how to obtain an attorney.) 1. If the Sheriffs Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling (215) 563-7000. 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property. 3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find out if this has happened, you may call (717) 240-6390. 4. If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened. 5. You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A schedule of distribution of the money bid for your house will be filed by the Sheriff within 30 days of the sale. This schedule will state who will be receiving that money. The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the distribution is filed. 7. You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale. . YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD'ONE, GO TO OR TELEPHONE THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a representative of the plaintiff at the Sheriffs Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CUMBERLAND COUNTY COURTHOUSE f DESCRIPTION ALL THAT CERTAIN property located in the Second Ward of the Borough of Carlisle, Cumberland County, Pennsylvania, and being known as 150 South Bedford Street, more particularly bounded and described as follows: BEGINNING at a point on the West side of South Bedford Street at line of property herein conveyed and property formerly of Marie Stough; thence South 14.7 feet to the center line of the partition wall between Nos. 150 and 152 South Bedford Street (No. 152 now or formerly being the property of Leon V. Kitner and Ruth A. Kitner); thence westwardly and partly through the said partition wall 33.2 feet to a break in the fence line; thence Southwestwardly 5.2 feet to another break in the fence line; thence Southwestwardly 24.7 feet to property now or formerly of John York; thence Northwardly along said York property 22.5 feet to a point on line of property now or formerly of Marie Stough, thence Eestwardly 60 feet, more or less to a point the Place of BEGINNING. BEING the same premises which Jerry W. Swartz, by Deed dated July 30, 2002 which Deed is recorded in the Office of the Recorder of Deeds in and for Cumberland County in Deed Book 252, Page 4660, granted and conveyed to Tonya M. Bream, single person, Grantor herein. Premises: 150 South Bedford Street, Carlisle, PA 17013 Carlisle Borough 2nd Ward Cumberland County Pennsylvania PARCEL IDENTIFICATION NO: 03-21-0320-158 CONTROL #: 03000324 TITLE TO SAID PREMISES IS VESTED IN Joshua R. Mitten, single person, by Deed from Tonya M. Bream, single person, dated 04/27/2005, recorded 05/16/2005, in Deed Book 268, page 4332. WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 07-3946 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 Plaintiff (s) From JOSHUA R. MITTEN (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $82,940.20 L.L. $.50 Interest from 8/21/07 TO 12/05/07 (PER DIEM - $13.63) - $1,444.78 AND COSTS Atty's Comm % Atty Paid $182.40 Plaintiff Paid Date: 8/23/07 (Seal) Due Prothy $2.00 Other Costs $2,158.50 K. g, ProthonotaryBy: IC&ds R. Lon&.' A.. L- '0"" Deputy REQUESTING PARTY: Name DANIEL G. SCHMIEG, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, LLP ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 62205 PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire, Atty. I.D. No. 69849 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series ACE 2005-HE5 Plaintiff vs. Joshua R. Mitten Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division : Cumberland County No. 07-3946 Civil Term PLAINTIFF'S MOTION TO REASSESS DAMAGES Plaintiff, by its Attorney, Michele M. Bradford, Esquire, moves the Court to direct the Prothonotary to amend the judgment in this matter, and in support thereof avers the following: Plaintiff commenced this foreclosure action by filing a Complaint on June 28, 2007, a true and correct copy of which is attached hereto, made part hereof, and marked as Exhibit "A". 2. Judgment was entered on August 23, 2007 in the amount of $82,940.20. A true and correct copy of the praecipe for judgment is attached hereto, made part hereof, and marked as Exhibit "B". 3. Pursuant to Pennsylvania Rule of Civil Procedure 1037(b)(1), a default judgment. containing a dollar amount must be entered for the amount claimed in the complaint and any item which can be calculated from the complaint, i.e. bringing the interest current. However, new items cannot be added at the time of entry of the judgment. 4. The Property is listed for Sheriffs Sale on December 5, 2007. However, in the event this motion has not been heard by this Honorable Court by that date, Plaintiff may continue the sale in accordance with Pennsylvania Rule of Civil Procedure 3129.3. Additional sums have been incurred or expended on Defendant's behalf since the Complaint was filed and Defendant has been given credit for any payments that have been made since the judgment. The amount of damages should now read as follows: Principal Balance $77,114.54 Interest Through 12/05/07 6,488.12 Per Diem $21.02 Late Charges 85.77 Legal fees 1,675.00 Cost of Suit and Title 1,299.00 Sheriffs Sale Costs 0.00 Property Inspections 1,358.00 Appraisal/Brokers Price Opinion 95.00 Mortgage Ins. Premium/Private 0.00 Mortgage Insurance NSF (Non-Sufficient Funds charge) 0.00 Suspense/Misc. Credits 0.00 Escrow Deficit 976.47 TOTAL $897091.90 6. The judgment formerly entered is insufficient to satisfy the amounts due on the Mortgage. 7. Under the terms of the Mortgage and Pennsylvania law, Plaintiff is entitled to inclusion of the figures set forth above in the amount of judgment against the Defendant. Plaintiff's foreclosure judgment is in rem only and does not include personal liability, as is addressed in Plaintiff's attached brief. 9. In accordance with Cumberland County Local Rule 208.3(9), Plaintiff sent a copy of its proposed Motion to Reassess Damages and Order to the Defendant on September 24, 2007 and requested the Defendant's concurrence. Plaintiff did not receive any response from the Defendant. A true and correct copy of Plaintiff's letter pursuant to Local Rule 208.3(9) and postmarked certificate of mailing is attached hereto, made part hereof, and marked as Exhibit "C". 10. No Judge has previously entered a ruling in this case. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. Date: ? b?k ? I a_ Phelan Hallinan & Sc ieg, LLP By: XheMicfe M. Bradford, E' ire Attorney for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series ACE 2005-HE5 Plaintiff vs. Joshua R. Mitten Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas : Civil Division : Cumberland County No. 07-3946 Civil Term MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REASSESS DAMAGES 1. BACKGROUND OF CASE Defendant executed a Promissory Note agreeing to pay principal, interest, late charges, real estate taxes, hazard insurance premiums, and mortgage insurance premiums as these sums became due. Plaintiffs Note was secured by a Mortgage on the Property located at 150 South Bedford Street, Carlisle, PA 17013. The Mortgage indicates that in the event a default in the mortgage, Plaintiff may advance any necessary sums, including taxes, insurance, and other items, in order to protect the security of the Mortgage. In the instant case, Defendant defaulted under the Mortgage by failing to tender numerous, promised monthly mortgage payments. Accordingly, after it was clear that the default would not be cured, Plaintiff commenced the instant mortgage foreclosure action. Judgment was subsequently entered by the Court, and the Property is currently scheduled for Sheriffs Sale. Because of the excessive period of time between the initiation of the mortgage foreclosure action, the entry of judgment and the Sheriffs Sale date, damages as previously assessed are outdated and need to be adjusted to include current interest, real estate taxes, insurance premiums, costs of collection, and other expenses which Plaintiff has been obligated to pay under the Mortgage in order to protect its interests. It is also appropriate to give Defendant credit for monthly payments tendered through bankruptcy, if any. II. LEGAL ARGUMENT TO AMEND PLAINTIFF'S IN REM JUDGMENT It is settled law in Pennsylvania that the Court may exercise its equitable powers to control the enforcement of a judgment and to grant any relief until that judgment is satisfied. 20 P.L.F,., Judgments § 191. Stephenson v. Butts, 187 Pa.Super. 55, 59, 142 A.2d 319, 321 (1958). Chase Home Mortgage Corporation of the Southwest v. Good, 537 A.2d 22, 24 (Pa.Super. 1988). The Pennsylvania Superior Court has repeatedly cited the right of a foreclosing creditor to amend its judgment prior to the Sheriffs sale. Nationsbanc Mortgage Corp. v. Grillo, 827 A.2d 489 (Pa.Super. 2003). Morgan Guaranty Trust Co. ofN.Y. vs. Mowl, 705 A.2d 923 (Pa. Super. 1998). Union National Bank of Pittsburgh v. Ciongoli, 407 Pa.Super. 171, 595 A.2d 179 (1991). The Supreme Court of Pennsylvania recognized in Landau v. Western Pa. Nat. Bank, 445 Pa. 117, 282 A.2d 335 (1971), that the debt owed on a Mortgage is subject to change and, in fact, can be expected to change from day to day because the bank must advance sums in order to protect its collateral. Because a Mortgage lien is not extinguished until the debt is paid, Plaintiff must protect its collateral up until the date of sale. Beckman v. Altoona Trust Co., 332 Pa. 545, 2 A.2d 826 (1939). Because a judgment in mortgage foreclosure is strictly in rem, it is critical that the judgment reflect those amounts expended by the Plaintiff in protecting the property. Meco Reality Company v. Burns, 414 Pa. 495, 200 A.2d 335 (1971). Plaintiff submits that if it goes to sale without the requested amended judgment, and if there is competitive bidding for the Property, Plaintiff will suffer a significant loss in that it would not be able to recoup monies it advanced to protect its interests. Conversely, amending the in rem judgment will not be detrimental to Defendant as it imputes no personal liability. In B.C.Y. v. Bukovich, the Pennsylvania Superior Court reiterated its long standing rule that a Court has the inherent power to correct a judgment to conform to the facts of a case. 257 Pa. Super. 157, 390 A.2d 276 (1978). In the within case, the amount of the original judgment does not adequately reflect the additional sums due on the Mortgage due to Defendant's failure to tender payments during the foreclosure proceeding and the advances made by the mortgage company. The Mortgage plainly requires the mortgagors to tender to the mortgagee monthly payments of principal and interest until the Promissory Note accompanying the Mortgage is paid in full. The mortgagor is also required to remit to the mortgagee sufficient sums to pay monthly mortgage insurance premiums, fire insurance premiums, taxes and other assessments relating to the Property. The mortgagor has breached the terms of the Mortgage, and Plaintiff has been forced to incur significant unjust financial losses on this loan. III. THE FORECLOSURE JUDGMENT IS IN REM ONLY The within case is a mortgage foreclosure action, the sole purpose of which is to take the mortgaged property to Sheriffs Sale. Pennsylvania law makes clear that an action in mortgage foreclosure is strictly in rem and does not include any personal liability. Newtown Village Partnership v. Kimmel, 424 Pa. Super 53, 55, 621 A.2d 1036, 1037 (1993). Signal Consumer Discount Company v. Babuscio, 257 Pa. Super 101, 109, 390 A.2d 266, 270 (1978). Pennsylvania Rule of Civil Procedure 1141(a). However, Pennsylvania law requires that the foreclosure action demand judgment for the amount due. Pa.R.C.P. 1147(6). The purpose of the dollar amount in the in rem judgment is for bidding at the Sheriffs Sale. In the event that a third party real estate speculator were to bid on the mortgaged property at the Sheriffs Sale and become the successful purchaser, Plaintiff would receive the amount of the in rem judgment from the Sheriff. IV. INTEREST The Mortgage clearly requires that the Defendant shall promptly pay when due the principal and interest due on the outstanding debt. In addition, the Note specifies the rate of interest to be charged until the debt is paid in full or otherwise satisfied. Specifically, interest from 30 days prior to the date of default through the date of the impending Sheriff's sale has been requested. V. TAXES AND INSURANCE If Plaintiff had not advanced monies for taxes and insurance throughout the foreclosure proceeding, Plaintiff would have risked loss of its collateral. If the Property were sold at a tax sale, Plaintiffs interest very well may be divested, and Plaintiff would sustain a complete loss on the outstanding balance due on the loan. If the Property were damaged in a fire, Plaintiff would not be able to obtain insurance proceeds to restore the Property if it did not pay the insurance premiums. Most importantly, the Mortgage specifically provides that the mortgagee may advance the monies for taxes and insurance and charge these payments against the escrow account. Plaintiff :is simply seeking to have the Court enforce the terms of the Mortgage. VI. ATTORNEY'S FEES The amount of attorney's fees requested in the Motion to Reassess Damages is in accordance with the loan documents and Pennsylvania law. Pennsylvania Courts have long and repeatedly concluded that a request of five percent of the outstanding principal balance is reasonable and enforceable as an attorney's fee. Robinson v. Loomis, 51 Pa. 78 (1865); First Federal Savings and Loan Association v. Street Road Shopping Center, 68 D&C 2d 751, 755 (1974). In Federal Land Bank of Baltimore v. Fetner, the Superior Court held that an attorney's fee of ten percent of the original mortgage amount is not unconscionable. 410 A.2d 344 (Pa. Super. 1979). Recently, the Superior Court cited Fetner in confirming that an attorney's fee of ten percent included in the judgment in mortgage foreclosure action was reasonable. Citicorp v. Morrisville Hampton Realty, 662 A.2d 1120 (Pa. Super. 1995). Importantly, Plaintiff recognizes this Honorable Court's equitable authority to set attorney's fees and costs as it deems reasonable. VII. CONCLUSION Therefore, Plaintiff respectfully submits that if the enforcement of its rights is delayed by legal proceedings, and such delays require the mortgagee to expend additional sums provided for by the Mortgage, then the expenses necessarily become part of the mortgagee's lien and should be included in the judgment. Plaintiff respectfully requests that this Honorable Court grant its Motion to Reassess Damages. Plaintiff submits that it has acted in good faith in maintaining the Property in accordance with the Mortgage, and has relied on terms of the Mortgage with the understanding that it would recover the monies it expended to protect its collateral. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. DATE: 1 64 Phel Hallinan& Schmieg, LP By: Michele M. Bradford, uire Attorney for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No..62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 154786 HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 3476 STATEVIEW BLVD FORT MILL, SC 29715 Plaintiff V. JOSHUA R. MITTEN 2065 RITNER HIGHWAY CARLISLE, PA 17013 Defendant n fV Q U ? R. C' ca U ATTORNEY FOR PLAIN F Fw COURT OF COMMON PLEAS CIVIL DIVISION TERM CUMBERLAND COUNTY A77()RNEy FILE Copy PLEASE RE-rURIV CIVII, ACTION - LAW COMPLAINT W MORTGAGE FORECLOSURE s h IvIt flrFry f eb Y Certa of ° be Pr the ?t `rinenr?r s?? p f tn??a Pile #: 154786 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 #: 154786 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 N: 154786 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 4: 154786 1. Plaintiff is HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 3476 STATEVIEW BLVD FORT MILL, SC 29715 2. The name(s) and last known address(es) of the Defendant(s) are: JOSHUA R. MITTEN 2065 RITNER HIGHWAY CARLISLE, PA 17013 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 05/13/2005 mortgagor(s) made, executed, and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS A NOMINEE FOR FREMONT INVESTMENT & LOAN which mortgage is'recorded in the Office of the Recorder of CUMBERLAND County, in Book: 1907, Page: 831. Said Assignment of Mortgage was re-recorded on 07/26/2005 in Assignment of Mortgage Book No. 1916, Page 192. PLAINTIFF is now the legal owner of the mortgage and is in the process of formalizing an assignment of same. The mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(8); 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 N; 154796 The mortgage is in default because monthly payments of principal and interest upon said mortgage due 02/01/2007 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. 6. The following amounts are due on the mortgage: Principal Balance $77,114.54 Interest $2,778.86 01/01/2007 through 06/15/2007 . (Per Diem $16.74) Attorney's Fees $1,250.00 Cumulative Late Charges $8537 05/13/2005 to 06/15/2007 Cost of Suit and Title Search 550.00 Subtotal $81,779.15 Escrow Credit $0.00 Deficit $39.47 Subtotal 39.47 TOTAL $81,818.62 7. If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. File #: 154796 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 elate(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. 10. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. File #: 154786 11, This action does not come under Act 91 of 1983 because the mortgage premises is not the principal residence of Defendant(s). WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $81,818.62, together with interest from 06/15/2007 at the rate of $16.74 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, LLP By: Is rancis S. ;ISinan LAWRENCE T. PHELAN, ESQUIRE DANIEL G. SCHMIEG, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff File 4: 154786 LEGAL DESCRIPTION All that certain property located in the Second Ward of the Borough of Carlisle, Cumberland County, Pennsylvania, and being known as 150 South Bedford Street, more particularly bounded and described as follows: BEGINNING at a point on the West side of South Bedford Street at line of property herein and property formerly of Marie Stough; thence South 14.7 feet to the center line of the partition wall between Nos. 150 and 152 South Bedford Street (No. 152 now or formerly being the property of Leon V. Kitner and Ruth A. Kitner); thence westwardly and partly through the said partition wall 33.2 feet to a break in the fence line; thence Southwestwardly 5.2 feet to another break in the fence line; thence Southwestwardly 24.7 feet to property now or formerly of John York; thence Northwardly along said York property 22.5 feet to a point on line of property now or lormerly of Marie Stough; thence Eastwardly 60 feet, more or less to a point the Place of B EGINNTNG. AND BEING the premises described in Cumberland County Deed book 268, page 4332. PARCEL#: 03-21-0320-158 PROPERTY BEING: 150 SOUTH BEDFORD STREET Filc N: 154786 VERIFICATION FRANCIS S. HA.LLINAN, 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 Plaintiff and 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 unswom falsification to authorities. FRANCIS S. HALLINAN, ESQUIRE Attorney for Plaintiff DATE: PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 Attorney for Plaintiff ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-M 3476 STATEVIEW BLVD. FORT MILL, SC 29715 Plaintiff, V. JOSHUA R. MITTEN 126 MEALS DRIVE CARLISLE, PA .17013 Defendant(s). n' i UhNEY FILE COPY PLEME REIURAi CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 07-3946 ATTORNEY FILE Copy PLEASE RETURN PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter an in rem judgment in favor of the Plaintiff and against JOSHUA R. MITTEN Defendant(s) for failure to file an Answer to Plaintiffs Complaint within 20 days from service thereof and for Foreclosure and Sale of the mor6g ;remises, and assess Plaintiffs damages as follows: A MNEY FILE E4PY °! FASE REMRIV. As set forth in Complaint $81,818.62 Interest from 06/16/07 to 08/21/07 $1,121.58 TOTAL $82,940.20 I hereby certify that 0) the addresses of the Plaintiff and Defendant(s) are as shown above, and J? ) (2) that notice has been given in accordance with DANIEL .1, copy attached. _ WORN COPY PLEAS RETURN G. SCHMIE , E Attorney for Plaintiff . 9? DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: P - 0 f O PR TRY 154786 PHELAN HALLINAN & SCHMIEG, LLP 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103 (215) 563-7000 FAX#: (215) 563-3459 michele.bradford@fedphe.com Michele M. Bradford, Esquire Representing Lenders in Pennsylvania and New Jersey September 24, 2007 Joshua R. Mitten 2065 Ritner Highway Carlisle, PA 17013 RE: HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series ACE 2005-HE5 vs. Joshua R. Mitten Premises Address: 150 South Bedford Street, Carlisle, PA 17013 Cumberland County CCP, No. 07-3946 Civil Term Dear Defendant, Enclosed please find a true and correct copy of my proposed Motion to Reassess Damages and Order. In accordance with Cumberland County Local Rule 208.3(9), I am seeking your concurrence with the requested relief that is, increasing the amount of the judgment. Please respond to me by Friday, September 28, 2007. Should you have further questions or concerns, please do not hesitate to contact me. Otherwise, please be guided accordingly. V yours Michele M. Bradford, squire For Phelan Hallinan & Schmieg, LLP Enclosure O .O a? r.? W 0 En U v Ln ? oc C "•? Y Q C O. Z 440 a b ? a b v zQ`c cc O U 0. O u 5 9w $ a o • 1.-` ; ? $ E WQNd 03J1'dW + g . £0 46 l 3400 dIZ L OOZ bZ d3S 0 We 20000 a a E 05030 $ M zo W . 00 53MO9ADUld ® Z N y ?? Q d C , L O a 8 y y u ? w 'fl o X ? OD u i; wN ° yV dd '00 t?.l A p ? N U d'L E pug- , '5 o° b > o o M aoo?P ' sa ?' vx Gy O Q r? 114 d d eo U a s Q) U a G O o O -? v 3 Q+ 1104 N bA p b ? m • ? ? Fr1 Y-LI u u ? T p r-: g.- a?"+ a° uEi N ? N O i. c a r c °? Aa y :3 E z 3 ' J., A .= i 00 00 00 kn t tp Fiy m E U H ' z O . a N M "T to IC [- 00 C? O N M V U o.d F- cG. VERIFICATION Michele M. Bradford, Esquire, hereby states that she is the attorney for Plaintiff in this action, that she is authorized to make this verification, and that the statements made in the foregoing Motion to Reassess Damages are true and correct to the best of her knowledge, information and belief. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities. DATE: L I ? ( P el li a c te Y? Michele M. BradAttorney for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP by• Michele M Bradford Esquire Atty. I.D. No. 69849 ATTORNEY FOR PLAINTIFF 5 9 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 HSBC Bank USA, National Association, as Trustee Court of Common Pleas for Home Equity Loan Trust Series ACE 2005-HE5 Plaintiff : Civil Division VS. Joshua R. Mitten : Cumberland County : No. 07-3946 Civil Term Defendant CERTIFICATION OF SERVICE I hereby certify that true and correct copies of Plaintiffs Motion to Reassess Damages, and Brief in Support thereof, were sent to the following individual on the date indicated below. Joshua R. Mitten 150 South Bedford Street Carlisle, PA 17013 Joshua R. Mitten 126 Meals Drive Carlisle, PA 17013 Joshua R. Mitten 2065 Ritner Highway Carlisle, PA 17013 DATE: Ii 1 %ee", Y? P rMMBB c ie Mi ele radford, EsqAttorney for Plaintiff I OCT 0420014^i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series ACE 2005-HE5 Plaintiff VS. Joshua R. Mitten Defendant RULE : Court of Common Pleas Civil Division : Cumberland County : No. 07-3946 Civil Term AND NOW, this '/` day of OcIP...e 2007, a Rule is entered upon the Defendant to show cause why an Order should not be entered granting Plaintiffs Motion to Reassess Damages. Zoe ?J ?r raw Rule Returnable an tha- day of 200 77 , a in e y vama. BY THE COURT, V Michele M. Bradford, Esquire Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 TEL: (215) 563-7000 FAX: (215) 563-3459 michele.bradford(Wedphe.com `Joshua R. Mitten 2065 Ritner Highway Carlisle, PA 17013 Joshua R. Mitten 150 South Bedford Street Carlisle, PA 17013 Tel: (717)385-2715 /? 1? J. / " Joshua R. Mitten 126 Meals Drive Carlisle, PA 17013 (n- !W ?YlI ?LzaL /o/q/0-1 154786 ----Jj-( iF P OS :? i ,: li - 1130 EOOZ 'Hi EC PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series ACE 2005-HE5 Plaintiff VS. Joshua R. Mitten Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division Cumberland County : No. 07-3946 Civil Term CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of our Motion to Reassess Damages noting a Rule Return date of October 30, 2007 was sent to the following individual on the date indicated below. Joshua R. Mitten 150 South Bedford Street Carlisle, PA 17013 Joshua R. Mitten 126 Meals Drive Carlisle, PA 17013 Joshua R. Mitten 2065 Ritner Highway Carlisle, PA 17013 LLP DATE: ?bl b' Michele M. Bradford, Attorney for Plaintiff ifi CD 77{ cr AFFIDAVIT OF SERVICE PLAINTIFF HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 DEFENDANT(S) JOSHUA R. MITTEN SERVE JOSHUA R. MITTEN AT 126 MEALS DRIVE CARLISLE, PA 17013 CUMBERLAND COUNTY No. 07-3946 ACCT. #154786 Type of Action - Notice of Sheriff's Sale Sale Date: DECEMBER 5, 2007 SERVED Served and made known to ?l O.S H t 0 ?P I i rT l N , Defendant, on the day of &-M 200 at-Q- o'clock P.m., at l g?( M [?4C_ S -DA t Vi: , Commonwealth of Pennsylvania, in the manner described below: Defendant personally served. A Adult family member with whom Defendant(s) reside(s). Name and Relationship is I ?/l6-tN E?2 Adult in charge of Defendant(s)'s residence who refused to give name or relationship. Manager/Clerk of place of lodging in which Defendant(s) reside(s). Agent or person in charge of Defendant(s)'s office or usual place of business. an officer of said Defendant(s)'s company. Other: Description: Age 50' Height Weight Race VJ Sex Other I, 1 Qk -b t- , a competent adult, being duly sworn according to law, depose and state that I personally handed a true and correct copy of the Notice of Sheriff s Sale in the manner as set forth herein, issued in the captioned case on the date and at the address indicated above. Sworn to and subscribod before me this y of V MANKa Ic RLS Notary. WWI ?-" By: PL EMPT SERVICE AT LEAST 3 TIMES. INDICATE DATES & TIMES OF SERVICE ATTEMPTED. NOT SERVED On the day of , 200. at o'clock _.m., Defendant NOT FOUND because: Moved Unknown No Answer Vacant 1st Attempt: / / Time: - 2°d Attempt: Time: 3rd Attempt: Sworn to and subscribed before me this day of , 200- Notary- Time: Attornev for Plaintiff DANIEL G. SCEff IIEG, Esquire - I.D. No. 62205 One Penn Center at Suburban Station, Suite 1400 By: 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 Z4 l -z'3 ?_? "'' ??? ? ? l ? '?,. I > ', ,`i'i ?? r s ?t ? ? .t.? ?? r P r. PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series ACE 2005-HE5 Plaintiff VS. Joshua R. Mitten Defendant ATTORNEY FOR PLAINTIFF : Court of Common Pleas : Civil Division : Cumberland County : No. 07-3946 Civil Term MOTION TO MAKE RULE ABSOLUTE HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series ACE 2005-HE5, by and through its attorney, Michele M. Bradford, Esquire, hereby petitions this Honorable Court to make Rule to Show Cause absolute in the above-captioned action, and in support thereof avers as follows: 1. That it is the Plaintiff in this action. 2. A Motion to Reassess Damages was filed with the Court on October 3, 2007. 3. A Rule was entered by the Court on or about October 4, 2007 directing the Defendant to show cause why the Motion to Reassess Damages should not be granted. A true and correct copy of the Rule is attached hereto, made part hereof, and marked Exhibit "A". 4. The Rule to Show Cause was timely served upon all parties on October 10, 2007, in accordance with the applicable rules of civil procedure. A true and correct copy of the Certificate of Service is attached hereto, made part hereof, and marked Exhibit "B". 5. Defendant failed to respond or otherwise plead by the Rule Returnable date of October 30, 2007. WHEREFORE, Plaintiff requests that this Honorable Court make the Rule to Show Cause absolute and grant Plaintiff's Motion to Reassess Damages. PHELAN HALLINAN & SCHMIEG, LLP o sl/ V EL Date 94iclIele M. Bra fo , Esquire Attorney for the aintiff PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series ACE 2005-HE5 Plaintiff vs. Joshua R. Mitten Defendant ATTORNEY FOR PLAINTIFF : Court of Common Pleas : Civil Division Cumberland County : No. 07-3946 Civil Term BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO MAKE RULE ABSOLUTE A Motion to Reassess Damages was filed with the Court on October 3, 2007. A Rule was entered by the Court on or about October 4, 2007 directing the Defendant to show cause why the Motion to Reassess Damages should not be granted. The Rule to Show Cause was timely served upon all parties on October 10, 2007 in accordance with the applicable rules of civil procedure. Defendant failed to respond or otherwise plead by the Rule Returnable date of October 30, 2007. WHEREFORE, Plaintiff requests that this Honorable Court make the Rule to Show Cause absolute and grant Plaintiff's Motion to Reassess Damages. tA & SCH MIEG, LLP BLOP ae is ele squire Attorney for the Plaintiff OCT 042007 Pi IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series ACE 2005-HE5 Plaintiff : Court of Common Pleas : Civil Division VS. Joshua R. Mitten Defendant RULE : Cumberland County : No. 07-3946 Civil Term AND NOW, this day of ©cJYi ,r 2007, a Rule is entered upon the Defendant to show cause why an Order should not be entered granting Plaintiff's Motion to Reassess Damages. Rule Returnable an th day of - 200 , a to e vania. BY THE COURT, J. Michele M. Bradford, Esquire Joshua R Mitten / Joshua R. Mitten Phelan Hallinan & Schmieg, LLP 2065 Ritner Highway ! 126 Meals Drive 1617 JFK Boulevard, Suite 1400 Carlisle, PA 17013 Carlisle, PA 17013 Philadelphia, PA 19103 TEL: (215) 563-7000 Joshua R Mitten FAX: (215) 563-3459 150 South Bedford Street michele.bradford(a)fedphe.com Carlisle, PA 17013 Tel: (717)385-2715 ? i TRUE COPY F "Oft lufft Sd m 1AN t T he t ' IF) ? . e> mct?y v?r ft of Wd CM t QUM, P& ! = fyj f 1 f. ?Mfi4rtl?t?lN C7 0 W r 4 cIP M` ---? Rs C 9 O M Cq -C PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire ATTORNEY FOR PLAINTIFF Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 HSBC Bank USA, National Association, as Trus Court of Common Pleas for Home Equity Loan Trust Series ACE 20 5 Plaintiff ;a,`Civil Division VS. Cumberland County Joshua R. Mitten No. 07-3946 Civil Term Defendant .? CERTIFICAThO OF SERVICE I hereby certify that a true and co_ rieaOil' y of our Motion to Reassess Damages noting a Rule Return date of October 30, 200Was sent to the following individual on the date indicated below. Joshua R. Mitten 150 South Bedford Street Carlisle, PA 17013 Joshua R. Mitten 126 Meals Drive Carlisle, PA 17013 Joshua R. Mitten 2065 Ritner Highway Carlisle, PA 17013 DATE: b y: inan &.SLhrdiee. LLP Michele M. Bradford, Es ui Attorney for Plaintiff VERIFICATION Michele M. Bradford, Esquire, hereby states that she is the attorney for Plaintiff in this action, that she is authorized to make this verification, and that the statements made in the foregoing Motion to Make Rule Absolute are true and correct to the best of her knowledge, information and belief. The undersigned understands that this statement herein is made subject to the sworn penalties of 18 Pa.C.S. t) l a- Date ation of authorities. §4904 relating aAele' aB?radf(64,-Esquire Attorney for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series ACE 2005-HE5 Plaintiff vs. Joshua R. Mitten ATTORNEY FOR PLAINTIFF : Court of Common Pleas : Civil Division Cumberland County : No. 07-3946 Civil Term Defendant CERTIFICATION OF SERVICE I hereby certify that true and correct copies of Plaintiff's Motion to Make Rule Absolute and Brief in Support thereof were served upon the following individuals on the date indicated below. Joshua R. Mitten 150 South Bedford Street Carlisle, PA 17013 Joshua R. Mitten 126 Meals Drive Carlisle, PA 17013 Joshua R. Mitten 2065 Ritner Highway Carlisle, PA 17013 DATE: pl 3 1 Ph an pichele g, LLP B: ad fo , Esquire Attorney or Plaintiff r -::? ?'? ?" `, ?-_! 1 ?-; a ?? ""°i r..?, ?_j ?; ?' r NOV 0 62007/ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA HSBC Bank USA, National Association, as Trustee Court of Common Pleas for Home Equity Loan Trust Series ACE 2005-HE5 Plaintiff Civil Division VS. Joshua R. Mitten Cumberland County : No. 07-3946 Civil Term Defendant ORDER AND NOW, this ?1 V day of Nam' , 2007, upon consideration of Plaintiff s Motion to Make Rule Absolute, it is hereby ORDERED and DECREED, that the Rule entered upon Defendant shall be and is hereby made absolute; and Plaintiff s Motion to Reassess Damages in the above captained matter is hereby GRANTED. The Prothonotary is ordered to amend the judgment and the writ of execution nunc pro tunc as follows: Principal Balance $77,114.54 Interest Through 12/05/07 6,488.12 Per Diem $21.02 Late Charges 85.77 Legal fees 1,675.00 Cost of Suit and Title 1,299.00 Sheriffs Sale Costs 0.00 Property Inspections 1,358.00 Appraisal/Brokers Price Opinion 95 00 Mortgage Ins. Premium/Private . 0.00 Mortgage Ins. NSF (Non-Sufficient Funds charge) 0.00 lv? Suspense/Misc. Credits 0.00 Escrow Deficit 976.47 TOTAL $89,091.90 Plus interest from 12/05/07 through the date of sale at six percent per annum. Note: The above figure is not a payoff quote. Sheriffs commission is not included in the above figure. BY THE C RT: J. ?Mic hele M. Bradford, Esquire Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 TEL: (215) 563-7000 FAX: (215) 563-3459 michele.bradford(2fedphe com Joshua R. Mitten 2065 Ritner Highway Carlisle, PA 17013 k,' ?Joshua R. Mitten 150 South Bedford Street Carlisle, PA 17013 l? ? !ES ??t P ?- "" l 154786 VfNfVAlkSNNM LC :01 WV 6- AON LOOZ A8VIONO"HiUd 3W. 3Q TO ?JO-031W 0-1- 3 1 A- COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ISS: I, Robert P. Ziegler, Recorder of Deeds in and for said County and State do hereby certify that the Sheriff's Deed in which Home Equity Loan Trust Series Ace 2005-HE5 Tr is the grantee the same having been sold to said grantee on the 5th day of Dec A.D., 2007, under and by virtue of a writ Execution issued on the 23rd day of Aug, A.D., 2007, out of the Court of Common Pleas of said County as of Civil Term, 2007 Number 3946, at the suit of Home Equity Loan Trust Series Ace 2005-HE5 Tr against Joshua R Mitten is duly recorded as Instrument Number 200746890. IN TESTIMONY WHEREOF, I have hereunto set my hand and seal of said office this C2 day of A.D. Oo Recorder of Deeds R*Order of D9edMy EVs kV4 N aet ?M. Carte, PA aY of Jan. 2010 HSBC Bank USA, National Association, as In the Court of Common Pleas of Trustee for Home Equity Loan Trust Series Cumberland County, Pennsylvania ACE 2005-HE5 Writ No. 2007-3946 Civil Term VS Joshua R. Mitten Michael Barrick, Deputy Sheriff, who being duly sworn according to law, states that on September 28, 2007 at 1700 hours, he served a true copy of the within Real Estate Writ, Notice and Description, in the above entitled action, upon the within named defendant, to wit: Joshua Mitten, by making known unto Miriam Mitten, mother of Joshua Mitten, at 126 Meals Drive, Carlisle, Cumberland County, Pennsylvania its contents and at the same time handing to her personally the said true and correct copy of the same. William Cline, Deputy Sheriff, who being duly sworn according to law, states that on October 08, 2007 at 1440 hours, he posted a true copy of the within Real Estate Writ, Notice, Poster and Description, in the above entitled action, upon the property of Joshua Mitten located at 150 South Bedford St., Carlisle, Cumberland County, Pennsylvania according to law. R. Thomas Kline, Sheriff, who being duly sworn according to law, states he served the above Real Estate Writ, Notice, Poster and Description in the following manner: The Sheriff mailed a notice of the pendency of the action to the within named defendant, to wit: Joshua Mitten by regular mail to his last known address of 126 Meals Drive, Carlisle, PA 17013. This letter was mailed under the date of October 12, 2007 and never returned to the Sheriffs Office. R. Thomas Kline, Sheriff, who being duly sworn according to law, states that after due and legal notice had been given according to law, he exposed the within described premises at public venue or outcry at the Courthouse, Carlisle, Cumberland County, Pennsylvania on December 5, 2007 at 10:00 o'clock A.M. He sold the same for the sum of $1.00 to Attorney Daniel Schmieg, on behalf of HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series Ace 2005-HE5. It being the highest bid and best price received for the same,HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series Ace 2005-HE5 of 3476 Stateview Blvd., Fort Mill, SC 29715 being the buyer in this execution, paid to Sheriff R. Thomas Kline the sum of $997.80. Sheriff s Costs: Docketing $30.00 Poundage 19.56 Posting Bills 15.00 Advertising 15.00 Acknowledging Deed 48.00 Auctioneer 10.00 Law Library .50 Prothonotary 2.00 Mileage 9.60 Levy 15.00 Surcharge 20.00 Law Journal Patriot News 356.72 Share of Bills Distribution of Proceeds Sheriff s Deed 377.00 14.92 25.00 39.50 $ 997.80 (16 7 C?. 4.0 Sp C qj .? P-V' So Answers: R. Thomas Kline, Sheriff BY 'll^ Al) Real Estate , HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 Plaintiff, V. JOSHUA R. MITTEN Defendant(s). CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 07-3946 AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. 1) HSBC BANK USA. NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EOUITY LOAN TRUST SERIES ACE 2005-HE5 Plaintiff in the above action, by its attorney, DANIEL G. SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at ,150 SOUTH BEDFORD STREET, CARLISLE, PA 17013. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) JOSHUA R. MITTEN 126 MEALS DRIVE CARLISLE, PA 17013 2. Name and address of Defendant(s) in the judgment: Same as above 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) PA DEPT. OF REVENUE BUREAU OF COMPLIANCE CLEARANCE SUPPORT SECTION ATTN: SHERIFF SALES DEPT. 281230 HARRISBURG, PA 17128 4. Name and address of last recorded holder of every mortgage of record: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) RODGER C. DIEHL, JR. AND SHARON A. DIEHL 13 FOX HOLLOW LANE CARISLE, PA 17013 5. Name and address of every other person who has any record lien on the property: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) Tenant/Occupant Domestic Relations of Cumberland County Commonwealth of Pennsylvania Department of Welfare 150 SOUTH BEDFORD STREET CARLISLE, PA 17013 13 North Hanover Street Carlisle, PA 17013 PO Box 2675 Harrisburg, PA 17105 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to uns&E;L ification to authorities. ., August 21, 2007 DATE G. SCH MIEG, ES Attorney for Plaintiff JV HSBC BANK USA, NATIONAL ASSOCIATION, CUMBERLAND COUNTY AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 No. 07-3946 Plaintiff, V. JOSHUA R. MITTEN Defendant(s). August 21, 2007 TO: JOSHUA R. MITTEN 126 MEALS DRIVE CARLISLE, PA 17013 * *THIS FIRMIS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOUHAVE PREVIOUSLYRECEIVED A DISCHARGE IN BANKRUPTCYAND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIENAGAINST PROPERTY. ** Your house (real estate) at, 150 SOUTH BEDFORD STREET, CARLISLE, PA 17013, is scheduled to be sold at the Sheriff s Sale on DECEMBER 5, 2007 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $82,940.20 obtained by HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 (the mortgagee) against you. In the event the sale is continued, an announcement will be made at said sale in compliance with Pa.R.C.P., Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriffs Sale, you must take immediate action: 1. The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: (215) 563-7000. 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause. 3. You may also be able to stop the sale through other legal proceedings. You may need an attorney to assert your rights. The sooner you contact one, the more chance you will have of stopping the sale. (See notice on page two on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1. If the Sheriffs Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling (215) 563-7000. 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property. 3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find out if this has happened, you may call (717) 240-6390. 4. If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened. 5. You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A schedule of distribution of the money bid for your house will be filed by the Sheriff within 30 days of the sale. This schedule will state who will be receiving that money. The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the distribution is filed. 7. You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a representative of the plaintiff at the Sheriff's Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CUMBERLAND COUNTY COURTHOUSE DESCRIPTION ALL THAT CERTAIN property located in the Second Ward of the Borough of Carlisle, Cumberland County, Pennsylvania, and being known as 150 South Bedford Street, more particularly bounded and described as follows: BEGINNING at a point on the West side of South Bedford Street at line of property herein conveyed and property formerly of Marie Stough; thence South 14.7 feet to the center line of the partition wall between Nos. 150 and 152 South Bedford Street (No. 152 now or formerly being the property of Leon V. K:Ltner and Ruth A. Kitner); thence westwardly and partly through the said partition wall 33.2 feet to a break in the fence line; thence Southwestwardly 5.2 feet to another break in the fence line; thence Southwestwardly 24.7 feet to property now or formerly of John York; thence Northwardly along said York property 22.5 feet to a point on line of property now or formerly of Marie Stough; thence Eastwardly 60 feet, more or less to a point the Place of BEGINNING. BEING the same premises which Jerry W. Swartz, by Deed dated July 30, 2002 which Deed is recorded in the Office of the Recorder of Deeds in and for Cumberland County in Deed Book 252, Page 4660, granted and conveyed to Tonya M. Bream, single person, Grantor herein. Premises: 150 South Bedford Street, Carlisle, PA 17013 Carlisle Borough 2nd Ward Cumberland County Pennsylvania PARCEL IDENTIFICATION NO: 03-21-0320-158 CONTROL #: 03000324 TITLE TO SAID PREMISES IS VESTED IN Joshua R. Mitten, single person, by Deed from Tonya M. Bream, single person, dated 04/27/2005, recorded 05/16/2005, in Deed Book 268, page 4332. WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 07-3946 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR HOME EQUITY LOAN TRUST SERIES ACE 2005-HE5 Plaintiff (s) From JOSHUA R. MITTEN (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof, (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $82,940.20 L.L. $.50 Interest from 8/21/07 TO 12/05/07 (PER DIEM - $13.63) - $1,444.78 AND COSTS Atty's Comm % Atty Paid $182.40 Plaintiff Paid Due Prothy $2.00 Other Costs $2,158.50 Date: 8/23/07 (Seal) REQUESTING PARTY: Name DANIEL G. SCHMIEG, ESQUIRE J-5d s R. Long, Prothonota4 By: A .-L Deputy Address: PHELAN HALLINAN & SCHMIEG, LLP ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 62205 4 Real Estate Sale # 54 On September 5, 2007 the Sheriff levied upon the defendant's interest in the real property situated in Carlisle Borough, Cumberland County, PA Known and numbered as 150 South Bedford Street, Carlisle, more fully described on Exhibit "A" filed with this writ and by this reference incorporated herein. Date: September 5, 2007 By: ?a&4JVK Real Estate Sergeant . L 1 r. ,., v r ?. 7 Lu;;? 2 J, Thee Patriot-News Co. 812 Market St. Harrisburg, PA 17101 Inquiries - 717-255-8292 CUMBERLAND COUNTY SHERIFFS OF CUMBERLAND COUNTY COURT HOUSE the ?latriot-Nevus Now you know CARLISLE PA 17013 THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Under Act No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin} ss Joseph A. Dennison, being duly sworn according to law, deposes and says: That he is the Assistant Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot-News and The Sunday Patriot-News newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Metro editions which appeared on the date(s) indicated below. That neither he nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY This ad ran on the date(s) shown below: 10/24/07 lihri ft"* Eris :.. 10/31/07 ! *album" tot 11/07/07 I swim l? t n ......... .1o?? lr M l?lDMO?rit?el?? ? Sworn to an sub ribed b. re me this 30 day of November, 2007 A.D. k Semd,:uw of to -arm,wof @wbk ' 00brrl fieoragad bft otary Public iuoron at 150 saga sot Sum mdm I bod?edrlr?btz?edat?le?: 1 lI t ,1 m 16. 1& a( Amer pt+?eity bffdo ` COMMONWEALTH OF PENNSYLVANIA Notarial Seal James L Cl". Notary Public 0 ad 152 city of Harrisburg, Dauphin County 3 Sam Be" Shed Rlo f My Commission i=xpres June 2, 2008 ift *C propely d Lai V: Xbw Will VAS Kiuor); 16nee weav+rt#! at IN* I` Member. Pennsvlvania Association of Notaries SW P1111111111011k 00 i? PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.1784 STATE OF PENNSYLVANIA : COUNTY OF CUMBERLAND : ss. Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, viz: October 26, November 2 and November 9, 2007 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true. REAL IWATE SALE NO. 54 Writ No. 2007-3946 Civil j HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series i ACE 2005-HE5 VS. i Joshua R. Mitten Atty.: Daniel Schmieg DESCRIPTION ALL THAT CERTAIN property located in the Second Ward of the Borough of Carlisle, Cumberland County, Pennsylvania, and being known as 150 South Bedford Street, more particularly bounded and de- scribed as follows: BEGINNING at a point on the West side of South Bedford Street at line of property herein conveyed and property formerly of Marie Stough; _ _a.., st1. td 7 fmt to t}i f. ran tPr r Marie Coyne, SWORN TO AND SUBSCRIBED before me this 9 day of November, 2007 Notary NOTARIAL SEAL DEBORAH A COLLINS Notary Public CARLISLE BORO, CUMBERLAND COUNTY My Commission Expires Apr 28, 2010