Loading...
HomeMy WebLinkAbout03-4463Sep 10 03 ~O:lBa Spear&Ho??man 1BSB?551570 Spear & Hoffman, P.A. BY: BONNIE DAHL, ESQUIRE Attorney I.D. No. 79294 1020 North Kings Highway, Suite 210 Chen'y Hill, New Jersey 08034 (856) 755-1560, Attorney for Plaintiff, Loan No.: 0001106087 DEPARTMENT OF VETERANS AFFAIRS 500 WISSAHICKON AVENUE PHILADELPHIA, PA 19144 PLAINTIFF, COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. O,~ --/'~ FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA 1730 W. OLYMPIC BLVD. SUITE 500 LOS ANGELES, CA 90015 DEFENDANTS COMPLAINT -ACTION TO OUIET TITLE NOTICE You have been sued in court. If you wish to defend against the claims set fo~h 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 eo~t without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You maylose 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FOR'III BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17103 (717) 249-3166 Sep I0 03 lO:lSa Speap&Ho~man 18567551570 p.3 AVISO Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en [as paginas siguientes, usted tiene veinte (20) dias de plazo a parlir de Ia fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandadas en contra de su persona. Sea avisado que si usted no se defiende, la torte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandato y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades o on'os dereches impormntes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE, SI NO TIENE ABOGADO O SI NO TIENE EL D/NERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFIC1NA CUYA DIRECCION SE ENCUENTP,_4. ESCRITA ABA JO PAIL', AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIAL LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY P, VENUE CARLISLE, PA 17103 (717) 249-3166 SPEAR AND HOFFMAN, P.A. BONNIE DAHL, ESQUIRE PA ATTORNEY I.D. # 79295 1020 N. KINGS HWY., STE 210 CHERRY HILL, NJ 08034 ATTORNEY FOR PLAINTIFF 856-755-1560 856-755-1570 (FAX) DEPARTMENT OF VETERANS AFFAIRS: 500 WISSAHICKON AVENUE PHILADELPHIA, PA 19 I44 PLAINTIFF VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA 1730 W. OLYMPIC BLVD. SUITE 500 LOS ANGELES, CA 90015 DEFENDANT COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO.: COMPLAINT - ACTION TO QUIET TITLE 1. Plaintiffis Department of Veterans Affairs, whose principal place of business is located at 500 Wissahickon Avenue, Philadelphia, PA 19 I44. 2. Defendant is First Allegiance Bank, an LPO of City National Bank of West Virginia, which maintains an address at 17748 Skypark Blvd., #100, Irvine, CA 92614. 3. This actions pertains to property located at 318 Stumpstown Road, Mechanicsburg, PA 17055, which is more particularly described in the legal description attached hereto as Exhibit "A". 4. Plaintiff, Department of Veterans Affairs obtained the property at a sheriffs sale at the Cumberland County Sheriff's Office on September 4, 2002 as a result ora Mortgage Foreclosure Action and Judgment against Joseph Edward Martin and Patricia Ann Martin at civil docket number 2001-6380 and assignment of the bid from Bank of America, N.A. A true and correct copy of Sheriff s deed is attached hereto as Exhibit "B." 5. Bank of America, N.A. foreclosed as the first mortgagee on the sul~ject property. 6. Defendant holds a junior mortgage on the property. 7. Pursuant to Pennsylvania Rules of Civil Procedure, Rules 3129.1 and 3129.2, Plaintiff in a foreclosure action is required to notify all lienholders and interested parties of the sheriff s sale at least thirty days prior to the sale. 8. Bank of America, N.A. failed to name Defendant as a lienholder and failed to notify Defendant of the September 4, 2002 sale by first class mail. 9. Notice of the sale was properly posted on the property itself and published by the sheriff once a week for three successive weeks in a newspaper of general circulation. 10. A sheriff sale of real estate normally discharges ail junior liens on the property, with some statutory exceptions. Defendant's lien does not fall within those exceptions. 10. The Rules of Civil Procedure do not provide a remedy for failure to notify junior lienholders by first class mail. 1 I. Plaintiff is prepared and willing to offer to Defendant the opportunity to purchase the property from Plaintiff for the amount of Plaintiffs judgment on the property, plus 6% legal rate of interest from time of judgment to the time of sale, plus sheriff s costs at the time o f the sale. 12. This action is brought pursuant to Pennsylvania Rules of Civil Procedure, Rule 1061 (b)(2) and (3) to compel Defendant either to file a Petition to Set Aside the Sale and Impound the Sheriff's Deeds or tender a release of its lien/mortgage on the subject property. 13. Plaintifl'requests the Court to Order that service of the within Complaint operate as service of the Notice of the Sale pursuant to Rule 3129.2 nunc pro tunc. 14. If Defendant has not accepted Plaintiff's offer to purchase the property within 30 days of service of the within Complaint, Plaintiff requests the court to enter an order invalidating Defendant's lien/mortgage on the subject property. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against Defendant and invalidate Defendant's lien as a matter of law by ordering the Recorder's office to cancel the defendant's mortgage on the property. Respectfully submitted, SPEAR AND HOFFMAN, P.A. BONNIE DAHL, ESQUIRE PA I.D #79294 VERIFICATION The undersigned, BONNIE DAHL, ESQUIRE, being duly sworn according to law, deposes and says that he is the attomey for Plaintiff and that she is authorized to make this Verification on behalf of Plaintiff, ,and that the facts set forth in the foregoing Complaint in ACTION TO QUIET TITLE are tree and correct to the best of his knowledge, information and belief. THE UNDERSIGNED UNDERSTANDS THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 PA.C.S. SECTION 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. DATE: BONNIE DAHL, ESQUIRE Attorney for Plaintiff Exhibit "A " BEING THE SAME P~.~IS~ which Kimba, Inc., a Corporation by Deed dated NovembeE 7, 1987 and recorded in Cumberland County Deed Book B, Volume 33, Page 175, granted and conveyed unto Joseph g. Mar~i~ and Patrlcia A. Martin, his wife. Exhibit "B " Tax Parcel No. 22-11-0278-058 Know all Men by these Presents That I, R. Thomas Kline, Sheriff of the County of Cumberland, In the State of Pennsylvania, for and in consideration of the sum of $1.00, (one dollar), to me in hand paid, do hereby grant and convey to Deoartment of Veterans Affairs REAl.. ESTATE SALE No. 59 Writ No. 2001-6380 Civil Term Bank of America, NA VS Joseph Edward Martin and Patricia Ann Martin Atty: Thomas J. Hornbeck DESCRIPTION ALL THAT CERTAIN tract of land situate in the Township of Monroe, County of Cumberland and State of Pennsylvania, being more particularly bounded and described as follows, to wit: BEGINNING at a steel pin set on the westernmost dedicated right- of-way line of the Stumpstown Road ('I'-570), said pin marking the common point of adjoiner of Lots Nos. 16 and 17 on the hereinafter mentioned Plan of Subdivision; thence departing from the Stump- stown Road tight-of-way and extend- ing along Lot No. 17, south 67 degrees 18 minutes 28 seconds west, for a distance of 280.00 feet to a steel pin; thence extending along Lots Nos. 17, 18 and 19, south 21 degrees 36 minutes 51 seconds east for a distance of 320.00 feet to a steel pin at a fence line at lands now or formerly of Magaro; thence extending along lands now or for- meriy of Magaro, south 67 degrees 18 minutes 28 seconds west, for a distance of 205.00 feet to a steel pin at Lot No, 15 on the hereinafter men- tioned plan of subdivision; thence extending along Lot No. I5 the fol- lowing three courses and distances: North 04 degrees 29 minutes 33 ,seconds West, for a distance of 420.00 feet to a steel pin; thence continu- ing North 67 degrees 18 minutes 28 seconds East, for a distance of 260.00 feet to a steel pin set on the western- most dedicated right-of-way line of the Stumpstewn Road; thence extend- ing in and along the westernmost dedicated right-of-way line of the Stumpstown Road, south 21 degrees 36 minutes 5I seconds east for a distance of 120.00 feet to a steel pin on said dedicated right-of-way line of Lot No. 17 on the hereinafter mentioned plan of subdivision, said pin mm-king the place of BEGIN- NING. CONTAINING 2.111 acres, and being designated as Lot No. 16 on a final plan of subdivision of Monroe Meadows, prepared for Kima, Inc., by Statler and Lahr, Registered Engineers. BEING the same premises which Kima, Inc. by deed dated Novem- ber 07, 1987 and recorded Novem- ber 19, 1987, in the Reeorder's Office in and for Cumberland, Pennsylva- nia, in Deed Book Volume 833 Page 175, granted and conveyed unto Joseph Edward Martin and Patticia Ann Martin, husband and wife, the mortgagor herein. The same having been sold by me to the said grantee on the 4.t.h day of Seotember Armo Domini Two Thousand and Tw...o (2002) after due advertisement according to law, under and by Virtue ora Writ of Execution issued on the 12tb day of June Anno Domini 2002 out of the Court of Common Pleas of Cumberland County, Pennsylvania, as of Civil Term, Two Thousand and One (2001) Number 6380 at the suit of Bank of America,NA a~ainst Joseoh Edward Martin and Patricia Ann Martin. In Witness Whereof, I have hereunto affixed my signature this 24~ day of sept. Anno Domini Two Thousand and Two (2002) Ri Thomas Kline, Sheriff Commonwealth of Pennsylvania, ss. County of Cumberland Before the undersigned, Curtis R. Long, Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, personally appeared R. Thomas Kline, Sheriff of C,.,mberland County aforesaid, and in due form of law declared that the facts Set forth in the foregoing Deed are true, and that he acknowledged the same in order that Said deed might be recorded. Witness my hand and seal of said Court, this 24th day of sep_ t, An_no Domini Two Thousand and Two (2002) 'i : ;~ J~LE CUMBERLAND ~d Post Office addxess Within Gr~tee is 1000 Libe~y Ave. ALL THA~ CE~?A~ tract of land situate in the Township of Monroe, County of Cumberland and'State of Pennsylvaniat being more particularly bounded and described as follows, co BEING THE SAME PREMISES which Kimba, Inc., a Corporation by Deed dated November 7, 1987 and recorded in Cumberland County Deed Book B, ¥olume 33, Page 175, granted and conveyed unto Joseph E. Martin and Patrlcia A. Martin, his wife. Spear 8,: Hoffman, P.A. BY: KEVIN P. DISKIN, ESQUIRE Attorney I.D. No. 86727 1020 N. Kings Highway, Suite 210 Cherry Hill, New Jersey 08034 (856) 755-1560 Attorney for Plaintiff DEPARTMENT OF VETERANS AFFAIRS 500 WISSAHICKON AVENUE PHILADELPHIA, PA 19144 PLAINTIFF, VS. FIRST ALLEGIANCE BANK, AN LPO OF CiTY NATIONAL BANK OF WEST VIRGINIA 1730 W. OLYMPIC BLVD. SUITE 500 LOS ANGELES, CA 90015 DEFENDANTS COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 03-4463 CIVIL TERM PRAECIPE TO REINSTATE COMPLAINT TO QUIET TITLE TO THE PROTHONOTARY: Kindly reinstate the Complaint to Quiet Title with regard to the above-captioned matter. SPEAR AND HOFFMAN, P.A. SPEAR AND HOFFMAN, P.A. BY: KEVIN P. DISKIN, ESQUIRE ATTORNEY I.D. NO. 86727 1020 NORTH KINGS HIGHWAY, SUITE 210 CHERRY HILL, NEW JERSEY 08034 (856) 755-1560 FACSIMILE: (856) 755-1570 ATTORNEY FOR PLAINTIFF LOAN NO. 0001106087 DEPARTMENT OF VETERANS AFFAIRS, PLAINTIFF, VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA, DEFENDANT(S) COURT OF COMMON PLEAS CIVIL DIVISION CUMBERLAND COUNTY NO. 03-4463 CIVIL TERM MOTION FOR SERVICE PURSUANT TO SPECIAL ORDER OF COURT Plaintiff, by and through its counsel, KEVIN P. DISKIN, ESQUIRE, moves this Honorable Court for an Order directing service of the Complaint to Quiet Title (Notice of Sale) upon the above-captioned Defendant(s) by Certified mail and Regular mail, publication and posting of the premises: 318 STUMPSTOWN ROAD, MECHANICSBURG, PA 17055 and in support thereof avers the following: 1. Attempts to serve Defendant(s) with the Complaint (Notice of Sale) have been unsuccessful, as indicated by the Return of Service by the Sheriff's Office (Legal Process Server) and/or proof of additional attempts at service attached hereto as Exhibit "A." 2. Pursuant to Pennsylvania Rule of Civil Procedure 430, Plaintiff has made a good faith effort to locate the Defendant(s). An Affidavit of Reasonable Investigation setting forth the specific inquiries made including, but not limited to, an Internet search and the results therefrom is attached hereto as Exhibit "B." WHEREFORE, Plaintiff respectfully requests this Honorable Court enter an Order pursuant to Pennsylvania Rule of Civil Procedure 430 directing service of the Complahat in Quiet Title and Notice of Sale by certified and regular mail, by posting and publication of the premises. Respectfully submitted, SPEAR & HOFFMAN, P.A. SPEAR AND HOFFMAN, P.A. BY: KEVIN P. DISKIN, ESQUIRE ATTORNEY I.D. NO. 86727 1020 NORTH KINGS HIGHWAY, SUITE 210 CHERRY HILL, NEW JERSEY 08034 (856) 755-1560, FAX (856) 755-1570 ATTORNEY FOR PLAINTIFF DEPARTMENT OF VETERANS AFFAIRS, PLAINTIFF, VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA, DEFENDANT(S) COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 03-4463 CIVIL TERM MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SERVICE PURSUANT TO SPECIAL ORDER OF COURT Plaintiff, by and through its counsel, KEVIN P. DISKIN, ESQUIRE, submits this Memorandum of Law in Support of its Motion for Service Pursuant to Special Order of Court. Pennsylvania Rule of Civil Procedure 430(a) specifically provides: (a) If service cannot be made under the applicable rule, the plaintiff may move the Court for a special order directing the method of service. The Motion shall be accompanied by an Affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the Defendant(s) and the reasons why service cannot be made. Note: A Sheriff's return of "Not Found" or the fact that a Defendant has moved without leaving a new forwarding address is insufficient evidence of concealment. Gonzales vs. Polls, 238 Pa. Super. 362, 357 A.2d 580 (1976). "Notice of intended adoption mailed to last known address requires a good faith effort to discover the correct address." Adoption of Walker, 468 Pa. 165,360 A.2d 603 (1976). An illustration of good faith effort to locate the defendant includes (1) inquiries of postal authorities including inquiries pursuant to the Freedom of Information Act, 39 C.F.R. Pan 265, (2) inquiries of relatives, neighbors, friends and employers of the Defendant, and (3) examinations of local telephone directories, voter registration records, local tax records and motor vehicle records. As indicated by the attached Return of Service marked hereto as Exhibit "A," the Sheriff (Legal Process Server) has been unable to serve the Complaint in Quiet Title (Notice of Sale). A good faith effort to discover the whereabouts of the Defendant(s) has been made as evidenced by the attached Affidavit of Reasonable Investigation, marked as Exhibit "B." WHEREFORE, Plaintiff respectfully requests service of the Complaint in Quiet Title and Notice of Sale by certified mail and regular mail, by posting by the Sheriff. and publication of the premises in a paper of General Distribution. Respectfully submitted, SPEAR & HOFFMAN, P.A. KEVIN P.'YIJr~KIN, ESQUirE Attorney for Plaintiff VERIFICATION KEVIN P. DISKIN, ESQUIRE hereby states that he is the Attorney for the Plaintiff in this action, that he is authorized to make this Affidavit, and that the statements made in the foregoing MOTION FOR SERVICE PURSUANT TO SPECIAL ORDER OF COURT are true and correct to the best of his 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 unsworn falsification to authorities. · SPEAR AND HOFFMAN, P.A. BY: KEVIN P. DISKIN, ESQUIRE ATTORNEY I.D. NO. 86727 1020 NORTH KINGS HIGHWAY, SUITE 210 CHERRY HILL, NEW JERSEY 08034 (856) 755-1560 FAX (856) 755-1570 SPEAR & HOFFMAN, P.A. BY: KEVIN P. DISKIN, ESQUIRE ATTORNEY I.D. NO. 86727 1020 NORTH KINGS HIGHWAY, SUITE 210 CHERRY HILL, NEW JERSEY 08034 (856) 755-1560, FAX (856) 755-1570 ATTORNEY FOR PLAINTIFF S & H FILE NO. BKM-P-251 LOAN NO. 0001106087 DEPARTMENT OF VETERANS AFFAIRS, PLAINTIFF, VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA, DEFENDANT(S) I hereby certify that on the COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 03-4463 CIVIL TERM CERTIFICATION OF SERVICE /~ dayof ~/(O-r~c./~x ,2004, I have served or caused to be served a true and correct copy of this Motion for Service Pursuant to Special Order of Court on all parties named herein at their last known address or upon their attorney of record by first class U.S. mail, post~ge prepaid to the addresses listed below. FIRST ALLEGIANCE BANK LPO OF CITY NATIONAL BANK OF WEST VIRGINIA 17748 SKYPARK BLVD., #100 IRVINE, CA 92614 FIRST ALLEGIANCE BANK LPO OF CITY NATIONAL BANK OF WEST VIRGINIA 1730 W. OLYMPIC BLVD., SUITE 500 LOS ANGELES, CA 90015 ATTN: LEGAL DEPARTMENT FIRST ALLEGIANCE FINANCIAL ROBERT LABBE, DIRECTOR 2933 CORTE PORTOFINO NEWPORT BEACH, CA 92660 FIRST ALLEGIANCE FINANCIAL NIELMA BASSIG, SECRETARY 2090 PACIFIC AVENUE, #204 SAN FRANCISCO, CA 94109-2248 CITY NATIONAL BANK OF WEST VIRGINIA 3601 MAC CORKLE AVENUE, SE CHARLESTON, WV 25304 SPEAR & HOFFMAN, P.A. AEVIN P. DISKIN, ESQUIRE TTORNEY FOR PLAINTIFF Exhibit "A ~ I . , CA am and wes on the dates herein mentioned over the age of 18 and not a party to this action; received the following doc, uments: c~3mplaint PAGE 02/82 T'.4Zz P.081/801 03-4463 Civil Texm. NAME: First Allegiance Bank ~U$1NES$: 1730 W. Olyml3ic B~vd. Los A~gele$, CA 90015 Below is a Jisting of a~mpts to date; 5O0 Febzuary 13, 2004 03:17 pn Security will not ~s on the ~th floor. We showed hi~ the papers and he directed us ~o the City National Bank on the fimst floor. Spoke to Walter McBeth, a vi~e ~re$ident of City National Bank, advised th&t his bank has nothing to ~o with thi:~ case Or ~arties in this ca~e. He will not acce~t service. Registered California ;3recess set-,, er. County: Registration No.: All-N-One Legal Su~ort, Inc. ~45 Wilshire Bled, S~:it~. 715 Los Angeles, CA 90017 (213) 202-3990 ~.deciare under penalty of perjury unde~ the Yaws of the United tares of America that the foreooing information COntained in the retuJ'n of service ar~ci statement of service fees is true arX:! correct ~d that this deela~ation was executed on Fe-Tbrnaz-y 3.3, 2004 at Los A.~eles, Califomta. SignaM. Ire: ~._ '~NTIERIr~-STATUS REPORT 'B&R 235 SOUTH 13TH STREET PHILADELPHIA, PA 19107 PHONE: (215) 546-7400 FAX: 215-985-0169 AFFIDAVIT OF SERVICE Philadelphia Association of Professional LAINTIFF(S) EFENDANT(S) First ¢~1 ] e9 i~ a nc: ~:.~ ERVE AT ~730 rd. OJymp~c: DIvd., SEe.. 500 Los ~5~8e].es, CA 900].5 OMPANY CONTROL NO. REFERENCE NO. 8KN-P-~251 CASE NO. DATEr. RECEiVED Typo of OL}',}r & Ac:c:eplanoe o'F SvC:. aved and made known to First Alle, gianc:e Sank the day of ,20 o f C i t 7' , at -- o'clock, )mmonwealth of Pennsylvania, in the manner described below: [] Defendant(s) personally served. I~ Adult family member with whom said Defendant(s) reside(s). Relationship is [] Adult in charge of Defendant's residence who refused to give name or relationship. [] Manager/Clerk of placing of lodging in which Defendant(s) reside(s). [] Agent or person in charge of Defendant's office or usual place of business. [] Posted ~ Other ogpu} IZF'D %57F~V o~s, l::hi8 12: d, ,/ of FebFLia'r>', ~ ~r ~ME OF SERVER being duly sworn according to law, 9oses and says that he/she is process server herein names; and ~t the facts herein set forth above are true and correct to the best of dr knowledge, information and belief. Process Se~'er / efiff Competent Adult orney's dress ephone )00 Philadelphia ASSOC. of Professional Process Se~vem Rev 1 Identification # Sworn to & subscribed before me this day of 20 __ ATTESI' .... PRO PROTHY 3,? :; 0 0 4 DATE CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ Countyof /_~ ~'.~- \~\~L~''~ / SS. ~ersonally known to me Q proved to me on the basis of satisfactow evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. W, JT~F.,,SS my hand and official~eak , OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachrnent of this form to another document. Description of Attached Document l~tle or Type of Document:\'~"~ ~"~=*.~. o(, i'~ov-, 5,-,-,-,-,-,-,-,-,-~*.~(.e,~ , ~.~.~'o,f,,_ O~':~z, Q~_d¢,~-~. ¢_j.d~\ Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: [] Individual [] Corporate Officer--~tle(s): [] Partner-- [~ Limited [] General [] Attorney-in-Fact [] Trustee [] Guardian or Conservator [] Other: Signer Is Representing:. Top of thumb here COUI~T OF (X)I~40N CU~E~T.AI~ COU~ Department of Veterans Affairs VS. First Allegiance Bank 03-4463 Civil Term I. the undersigned, am and wes on the dates mentioned herein, over the age ol~ aighresn yea~e end not a parry to the action. , I recoJv~d a copy of the Complaint-Action to Quiet Title Notice and Complaint-Action to Quiet Title on 2-13-04 and that after due eaarch, carafullnqulryanddlligant attempts ar the dwalllnghoul~orLmu~l place of ebode and/or bualnaaa. I have baan unabla to make personal delivery of saldproca,eanthewirhln named: First Allegianc~ Bank 1730 W. Olympic Blvd., # 500 Los Angeles., CA 90015 PROCES~IS BEING RETURNED WITHOUT SERVICE FOR THE FOLLOWING REASONS: Security will not allow me access on the fifth floor. I Showed him the papers and he directed me to the City National Bank on the first floor. I spoke to Walter McBeth, a vice president of City National Bank, who advised that his bank has nothing to do with this case or parties in this case. He would not accept service CANCELLATION: [ ] Before trip made.. [ ] After trip made. I declare under penalty cf perjury that the foregoing la true and correct. ~/O3 NOT FOUflO OR NON BERVI(~E RETURN Exhibit "B " Date: 07i01/2003 Players National Locator (PNL) (Reply Form) Reply To: PA - SPEAR & HOFFMAN ATTN:JAMIE ROMANO 1020 N KINGS HIGHWAY CHERRY HILL, NJ 08034 Service Type: Skip Trace Open Date: 06/27/2003 Due Data: 07/08/2003 Close Date: 06/30/2003 File Status: Found Loan Number: BKM-P-251 Servicer Loan Number: 1106087 Subject(s) Rating: Sorrower Name (1): FIRST ALLEGIANCE FINANCIAL Borrower Name (2): Last Known Address: 17748 SKY PARK CIRCLE IRVINE, CA 92614 New Address: Additional Information: SEE AFFIDAVIT. Social Security#: - - Social Security #: - - Residential Phone #: ( ) Residential Phone #: ( ) Business Phone#: ( ) Business Phone #: ( ) Other Phone#: ( ) PLEASE USE THIS FORM AS AN INVOICE. $46.00 DUE & PAYABLE. Players National Locator 113 OId State Road, Suite 104 St. Louis, MO 63021 Phone: (63,6) 230.9922 Fax: (636) 230-0558 900/'¢00'd 8Z.L-I 8~00E~ 9~9 uo!;~e!ooss¥ s?e,~ld-mO~:l ~£'¢:0~ PLAYERS NATIONAL LOCATOR AFFIDAVIT OF GOOD FAITH INVESTIGATION Loan Number: BKM-P-2$1 Attorney Firm: SPEAR & HOFFMAN PENNSYLVANIA Case Number: Subject: First Allegiance Financial A.K.A.: None Last Known Address: 17748 Sky Park Circle Irvine, CA 92614 Last Known Number: ( ) Melissa Kozma, being duly sworn according to/aw, deposes and says: 1. I am employed in the capacity of Location Specialist for Players National Locator. 2. On 06/30/2003, I conducted an investigation into the whereabouts of the above named defendant(s). The results of my investigation are as follows: CREDIT INFORMATION - A. SOCIAL SECURITY NUMBER(S): ~ . B. EMPLOYMENT SEARCH: N/A C. INQUIRY OF CREDITORS: NIA INQUIRY OF TELEPHONE COMPANY - A. DIRECTORY ASSISTANCE SEARCH: Directory assistance had no listing for First Allegiance Financial, INQUIRY OF NEIGHBORS - N/A INQUIRY OF POST OFFICE - A. NATIONAL ADDRESS UPDATE: N/A MOTOR VEHICLE REGISTRATION - A. MOTOR VEHICLE & DMV OFFICE: NIA OTHER INQUIRIES - A. DEATH RECORDS: NIA PUBLIC LICENSES ( PILOT, REAL ESTATE, ETC. ): First Allegiance Financial was Incorporated on Se tember 24 Identlflcat on Num P. ,1996, The Corporation the ........... .b~..r Ls. C1_904.0_7.5. The comp?ny m I,,ted as inactive. The marlin add offl~-e"r~,~:~.,,~.~,~_'~ _~,K~,,.~'a_rK '*lvd., #1..0.0: Irvme, C.A .92614. The following are t~ge ,te~ss for using 217';~P'~;;'f~;~e~'u~.e~°~-mp--any:.- ~-~lffI.J~- ~)~ ,a listed as the secretary and appears to be , =u=, =an ~-rancleco, GA 94115 and Robert Lab e who i the dlrecto~r an~d ap, pea,rs to use,2933 Corte Portofino, New=orr B~e~h "~ '~een a listed as 69q-J 900/SOO'a &Z.Z-/ 8§§00~Z 9£9 uo!~e!oossv ~,J@,~B)d-LUOJJ ~u'el~!¢:[I[ C,, COUNTY VOTER REGISTRATION: N/A ADDITIONAL INFORMATION ON SUBJECT - A. DATE Of BIRTH: NIA ssa Kozma Y Players National Locator 113 Old State Road, Suite 104 St. Louis, MO 6302~ Phone: (636) 230-9922 Fax: (636) 230-0558 §gS-J ~O0/§O0'd 81~-1 8§§0 0~ 9~9 uoIle!ooss¥ s,J@~eld-mpJJ me~y:OL ~O-IO-Inf SPEAR AND HOFFMAN, P.A. BY: KEVIN P. DISKIN, ESQUiRE ATTORNEY I.D. NO. 86727 1020 NORTH KINGS HIGHWAY, SUITE 210 CHERRY HILL, NEW JERSEY 08034 (609) 755-1560, FAX (609) 755-1570 ATTORNEY FOR PLAINTIFF DEPARTMENT OF VETERANS AFFAIRS, PLAINTIFF, VS. FiRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA, DEFENDANT(S) COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 03-4463 CIVIL TERM ORDER AND NOW, this :~ ¥ ~' day of ~a,..~ ,200_q_, pursuant to Plaintiff's Motion for Special Service and accompanying Memorandum of Law in Support thereof, it is hereby ORDERED that Plaintiff's Motion is hereby GRANTED; Service shall be deemed proper upon the following methods;: certified and regular mail Publication in a paper of General Distribution Posting Property located at: 318 STUMPSTOWN ROAD MECHANICSBURG, PA 17055 Other, as required by the Court: It is further ORDERED that all subsequent pleadings shall be deemed properly served upon defendants by the above methods of service or the methods of service as prescribed by Rule 440 of the Pennsylvania Rules of Civil Procedure regarding service of legal papers other than original process without further application to this Court for allowance of special service. ~,~'ZO~O~.t.O~d ~H.L ~0 Spear & Hoffman, P.A. BY: KEVIN P. DISKIN, ESQUIRE Attorney I.D. No. 86727 1020 N. Kings Highway, Suite 210 Cherry Hill, New Jersey 08034 (856) 755-1560 Attorney for Plaintiff DEPARTMENT OF VETERANS AFFAIRS 500 WISSAHICKON AVENUE PHILADELPHIA, PA 19144 PLAINTIFF, VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA 1730 W. OLYMPIC BLVD. SUITE 500 LOS ANGELES, CA 90015 DEFENDANTS COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 03-4463 CIVIL TERM PRAECIPE TO REINSTATE COMPLAINT TO QUIET TITLE TO THE PROTHONOTARY: Kindly reinstate the Complaint to Quiet Title with regard to the above-captioned matter. SPEAR AND HOFFMAN, P.A. KEVIN~. 'I~ISKIN, ESQULRE Spear & Hoffman, P.A. BY: Kevin P. Diskin, Esquire Attorney I.D. No. 86727 1020 N. Kings Highway, Suite 210 Cherry Hill, NJ 08034 (856) 755-1560 Facsimile: (856) 755-1570 Attorney for Plaintiff DEPARTMENT OF VETERANS AFFAIRS 500 WISSAHICKON AVENUE PHILADELPHIA, PA 19144 PLAINTIFF, VS. COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 03-4463 CIVIL TERM FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA 1730 W. OLYMPIC BLVD., SUITE 500 LOS ANGELES, CA 90015 DEFENDANT(S) CERTIFICATION OF SERVICE I hereby certify that on the (_~ day of ,ex~(~~ ~ , 20 Oc/~ I have served a tree and correct copy of the Reinstated Complaint in Quiet Title on all parties named herein at the address listed below by first class mail and Certified U.S. mail pursuant to signed Order of Court for Motion for Special Service, dated MARCH 24, 2004, attached as Exhibit "A" FIRST ALLEGIANCE FINANCIAL ROBERT LABBE, DIRECTOR 2933 CORTE PORTOFINO NEWPORT BEACH, CA 92660 FIRST ALLEGIANCE FINANCIAL NIELMA BASSIG, SECRETARY 2171 PACIFIC AVENUE, #303 SAN FRANCISCO, CA 94115 CITY NATIONAL BANK OF WEST VIRGINIA 3601 MAC CORKLE AVENUE, SE CHARLESTON, WV 25304 FIRST ALLEGIANCE FINANCIAL 17748 SKY PARK C1RCLE IRVINE, CA 92614 NATIONAL BANK OF WEST VIRGINIA LEGAL DEPARTMENT 1730 WEST OLYMPIC BLVD., SUITE 500 LOS ANGELES, CA 90015 SPEAR & HOFFMAN, P.A. -/~evin P. Dis~in, E~51~e //Attorney for Plaintiff SPEAR AND HOFFMAN, P.A. BY: KEVIN P. DISKIN, ESQUIRE A'I~FORNEY I.D. NO. 86727 1020 NORTH KINGS HIGHWAY, SUITE 210 CHERRY HILL, NEW JERSEY 08034 (609) 755-I560, FAX (609) 755-1570 ATTORNEY FOR PLAINTIFF DEPARTMENT OF VETERANS AFFAIRS, PLAINTIFF, VS. COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 034463 CIVIL TERM FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA, DEFENDANT(s) ORDER AND NOW, this ~-q "~ day of ~[~~, 200_~, pursuant to Plaintiff s Motion for Special Service and accompanying Memorandum of Law in Support thereof, it is hereby ORDERED that Plaintiff s Motion is hereby GRANTED; Service shall be deemed proper upon the following methods: certified and regular mail Publication in a paper of General Distribution Posting Property located at: 318 STUiVIPSTOWN ROAD MECHANICSBURG, PA 17055 Other, as required by the Court: It is further ORDERED that all subsequent pleadings shall be deemed properly served upon defendants by the above methods of service or the methods of service as; prescribed by Rule 440 of the Pennsylvania Rules of Civil Procedure regarding service of legal papers other than original process without further application to this Court for allowance of special service. SHERIFF' S RETURN - CASE NO: 2003-04463 P COMMONWEALTH OF PENNSYLVAi~IA: COUNTY OF CUMBERLAND VETERANS AFFAIRS DEPT OF VS FIRST ALLEGIANCE BANK REGULAR VALERIE WEARY , Cumberland County, Pennsylvania, says, the within COMPLAINT & NOTICE FIRST ALLEGIANCE BANK DEFENDANT at 1640:00 HOURS, at 318 STUMPSTOWN ROAD MECHANICSBURG, PA 17055 POSTED PROPERTY AT 318 a true and attested copy of COMPLAINT & NOTICE Sheriff or Deputy Sheriff of who being duly sworn according to law, was served upon the on the 7th day of April , 2004 by handing to STUMPSTOWN RD MECHANICSBURG together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 7.59 Posting 6.00 Surcharge 10.00 .00 41.59 Sworn and Subscribed to before me this ~-- day of 9,:~, ,,, ~e ~' A.D. thonotary So Answers: R. Thomas Kline 04/08/2004 SPEAR & HOFFMAN By: ~De~t~.Sheri~ff SPEAR AND HOFFMAN, P.A. KEVIN P. DISKIN, ESQUIRE PA ATTORNEY I.D. # 86727 1020 N. KINGS HWY., STE 210 CHERRY HILL, NJ 08034 ATTORNEY FOR PLAINTIFF 856-755-1560 856-755-1570 (FAX) DEPARTMENT OF VETERANS AFFAIRS: 500 WISSAHICKON AVENUE PHILADELPHIA, PA 19144 PLAINTIFF VS. COURT OF COMMON PLEAS CUMBERLAND COUNTY FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA 1730 W. OLYMPIC BLVD. SUITE 500 LOS ANGELES, CA 90015 DEFENDANT DOCKET NO.: 03-4463 Civil MOTION TO GRANT QUIET TITI,E 1. Plaintiff is Department of Veterans Affairs, whose principal place of business is located at 500 Wissahickon Avenue, Philadelphia, PA 19144. 2. Defendant is First Allegiance Bank, an LPO ot' City National Bank of West Virginia, which maintains an address at 17748 Skypark Blvd.,, #100, Irvine, CA 92614 3. This actions pertains to property located at 318 Stumpstown Road, Mechanic sburg, PA 17055, which is more particularly described in the legal description attached hereto, made part hereof and marked as Exhibit "A". 4. Plaintiff, Department of Veterans Affairs obtained the property at a sheriff's sale at the Cumberland County SheriWs Office on September 4, 2002 as a result of a Mortgage Foreclosure Action and Judgment against Joseph Edward Martin and Patricia Ann Martin at civil docket number 2001-6380 and assignment of the bid from Bank of America, N.A. A true and correct copy of Sheriff's deed is attached hereto, made part hereof and marked as Exhibit 5. Bank of America, N.A. foreclosed as the first mortgagee on the subject property. 6. Defendant holds a junior mortgage on the property. 7. Pursuant to Pennsylvania Rules of Civil Procedure, Rules 3129.1 and 3129.2, Plaintiff in a foreclosure action is required to notify all lien holders and interested parties of the sheriff's sale at least thirty days prior to the sale. 8. Bank of America, N.A. failed to name Defendant as a lien holder and failed to notify Defendant of the September 4, 2002 sale by first class raail. 9. Notice of the sale was properly posted on the property itself and published by the sheriff once a week for three successive weeks in a newspaper of general cimulation. 10. A sheriff sale of real estate normally discharges all junior liens on the property, with some statutory exceptions. Defendant's lien does not fall within those exceptions. 10. The Rules of Civil Procedure do not provide a remedy for failure to notify junior lien holders by first class mail. 11. Plaintiff is prepared and willing to offer to Defendant the opportunity to purchase the property from Plaintiff for the amount of Plaintiff's judgment on the property, plus 6% legal rate of interest from time of judgment to the time of sale, plus sheriff's costs at the time of the sale. 12. This action is brought pursuant to Pennsylvania Rules of Civil Procedure, Rule 1061 (b)(2) and (3) to compel Defendant either to file a Petition to Set Aside the Sale and Impound the Sheriff's Deeds or tender a release of its lien/mortgage on the subject property. 13. On March 24, 2004 this Honorable Court granted Plaintiff's Motion for Special Service. In that order this Honorable Court granted that service shall be deemed proper by certified and regular mail and the posting of the subject property located at 318 Stumpstown Rd., Mechanicsburg, Pa 17055. A true and correct copy of the March 24, 2004 order is attached hereto, made part hereof and marked as Exhibit "D". 14. On April 6, 2004, Plaintiff filed a Certificate ot' Service with this Honorable Court certifying that the March 24, 2004 Order had been complied with and service is completed. A true and correct copy of Plaintiff's Certificate of Service is attached hereto, made part hereof and marked as Exhibit "E". 15. Defendant has failed to file a response to Plaintiff's Complaint in Quiet Title. 15. Plaintiff requests the Court to Order that service of the within Complaint operate as service of the Notice of the Sale pursuant to Rule 3129.2 nunc pro tunc. 16. If Defendant has not accepted PlaintifFs offer to purchase the property within 30 days of service of the within Complaint, Plaintiff requests the court to enter an order invalidating Defendant's lien/mortgage on the subject property. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against Defendant and invalidate Defendant's lien as a matter of law by ordering the Recorder's office to cancel the defendant's mortgage on the.. property. Respectfully submitted, SPEAR AND HOFFMAN, P.A. / KEV1N/P. DI_~/~FN, ESQUIRE PALD #86727 KEVIN p. DISKIN, ESQUIRE PA ATTORNEY I.D. # 86727 1020 N. KINGS HWY., STE 210 CHERRY HILL, NJ 08034 ATTORNEY FOR PLAINTIFF 856-755-I 560 856-755-1570 (FAX) DEPARTMENT OF VETERANS AFFAIRS: 500 WISSAHICKON AVENUE PHILADELPHIA, PA 19144 PLAINTIFF VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA 1730 W. OLYMPIC BLVD. SUITE 500 LOS ANGELES, CA 90015 DEFENDANT COURT OF COMMON PLEAS CUMBE~LAND COUNTY DOCKET NO.: 03-4463 Civil BRIEF 1N SUPPORT OF PLAINTIFF'S MOTION TO GRANT QUIET TITI,i,; Plaintiff is Department of Veterans Affairs, whose principal .place of business is located at 500 Wissahickon Avenue, Philadelphia, PA 19144. Defendant is First Allegiance Bank, an LPO of City National Bank of West Virginia, which maintains an address at 17748 Skypark Blvd., #100, Irvine, CA 92614. This actions pertains to property located at 318 Sttanpstown Road, Mechanicsburg, PA 17055. Plaintiff, Department of Veterans Affairs obtained the propen,2/at a sheriff's sale at the Cumberland County Sheriff's Office on September 4, 2002 as a result ora Mortgage Foreclosure Action and Judgment against Joseph Edward Martin and Patricia Ann Martin at civil docket number 2001-6380 and assignment of the bid from Bank of America, N.A. Ba~ak of America, N.A. foreclosed as the first mortgagee on the subject property. Defendant holds a junior mortgage on the property. Pursuant to Pennsylvania Rules of Civil Procedure, Rules 3129.1 and 3129.2, Plaintiff in a foreclosure action is required to notify all lien holders and interested parties of the sheriff's sale at least thirty days prior to the sale. Bank of America, N.A. failed to name Defendant as a lien iholder and failed to notify Defendant of the September 4, 2002 sale by first class mail. Notice of the sale was properly posted on the property itself and published by the sheriff once a week for three successive weeks in a newspaper of general circulation. A sheriff sale of real estate normally discharges all junior liens on the property, with some statutory exceptions. Defendant's lien does not fall within those exceptions. The Pennsylvania Rules of Civil Procedure do not provide a remedy for failure to notify junior lien holders by first class mail. Plaintiff is prepared and willing to nffer to Defendant the opportunity to purchase the property from Plaintiff for the amount of Plaintiff's judgment on the property, plus 6% legal rate of interest from time of judgment to the time of sale, plus sheriff's costs at the time of the sale. Plaintifffiled this current action pursuant to Pennsylvania Rules of Civil Procedure, Rule 1061 (b)(2) and (3) to compel Defendant either to file a Petition to 51et Aside the Sale and Impound the SheriWs Deeds or tender a release of its lien/mortgage on the subject property. On March 24, 2004 this Honorable Court granted Plaintiff's Motion for Special Service. In that order this Honorable Court granted that service shall be deemed proper by certified and regular mail and the posting of the subject property located at 318 Stumpstown Rd., Mechanicsburg, Pa 17055. On April 6, 2004, Plaintiff filed a Certificate of Service with this Honorable Court certifying that the March 24, 2004 Order had been complied with and service is completed. Defendant has failed to file an Answer to Plaintiff's Complaint. Plaintiffrequests the Court to Order that service of the within Complaint operate as service of the Notice of the Sale pursuant to Rule 3129.2 nunc pro tune. If Defendant has not accepted Plaintiff's offer to purchase the property within 30 days of service of the within Complaint, Plaintiff requests the court to enter an order invalidating Defendant's lien/mortgage on the subject property. Exhibit "A" ALL ~M2~T CER?A~ tract of land situate in the Township of Monroe, County of Cumberland and'State of Pennsylvania, being more particularly bounded and described as foll~s, to wit: CONT. AI]FEN'C 2.111 acres, and being designated al Lot No. 16 on a Final Plan of Subdivision of Monroe Meadows, prepared for Kimba, Inc., by Statler and Lahr,~ Registered Engineers, dated November.24, 1986, and recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Boo~ 53, at Pa~e 34. BEING THE SAME PREMISES which Kimba, Inc., a Coq~oration by Deed date~ November 7, 1987 and recorded in Cumberland County Deed Book B, Volume 33, Page 175, gcanted and conveyed unto Joseph E. Ma~in and Patricia A. Martin, his wife. Exhibit "B" Tax Parcel No. 22-11-0278-058 Know all Men by these Presents That I, R. Thomas Kline, Sheriffofthe County of Cumberland, In the State of Pennsylvania, for and in consideration of the sum of $1.00, (one dollar), to me in hand paid, do hereby grant and convey to Department of Veterans Affairs REAL ESTATE SALE No. 59 Writ No, 2001-6380 Civil Term Bank of America, NA vs Joseph Edward Martin and Patricia Ann Martin Atty: Thomas J. Hornbeck DESCRIPTION ALL THAT CERTAIN tract of land situate in the Township of~ Monroe, County of Cumberland and State of Pennsylvania, being more particularly bounded and described ~ as follows, to wit: BEGINNING at a steel pin set ~ on the westernmost dedicated fight- of-way line of the Stampsmwn Road (T-570), said pin marking the common point of adjoiner of Lots Nos. 16 and 17 on the hereinafter ' mentioned Plan of Subdivision; thence departing f¥om the Stump- ~town Road right-of-way and extead- mg along Lot No. 17, south 67 degrees 18 minutes 28 seconds west, for a distance of 280.00 feet to a steel pin; thence extending along Lots Nos. 17, 18 and 19, south 21 degrees 36 minutes 51 seconds east for a distance of 320.00 feet m a steel pin at a fence line at lands now or formerly of Magaro; thence extending along lands now or for- merly of Magaro, south 67 degrees 18 minutes 28 seconds west, for a distance of 205.00 feet to a steel pin at Lot No. 15 on the hereinafter men- tloned plan of subdivision; thence · extending along LOt No. 15 the fol- lowing three courses and distances: North 04 degrees 29 minutes 33 ,seconds West, for a distance of 420.00 feet to a steel pin; thence confinu- Lng North 67 degrees 18 minutes 28 seconds East. for a distance of 260.00 feet to a steel pin set on the western- most dedicated right-of-way line of die Stumpstown Road; thence extend- ing in and along the westernmost dedicated right-of-way line of the Stumpstown Road, south 21 degrees 36 minutes 51 seconds east for a distance of 120.00 feet to a steel pin on said dedicated right-of-way line of Lot No. 17 on the hereinafter mentioned plan of subdivision, said pin marking the place of BEGIN- NING. CONTAINING 2.111 acres, and being designated ;as Lot No. 16 on a final plan of subdivision of Monroe Meadows, prepared for Kima, Inc., by Statler and Lahr, Registered Engineers, BEING the saree premises which Kima, Inc. by deed dated Novem- ber 07, 1987 and recorded Novem- ber 19, 1987, in the Reeorder's Office ir~ an~l for Cumberland, Pennsylva- ma, m Deed Book Volume 833 Page 175, granted and conveyed unto Joseph Edward Martin and Patricia Ann Martin, husband and wife, the mortgagor herein. The same having been sold by me to the said grantee on the 4th day of September Anno Domini Two Thousand and Two (.2002) after due advertisement according to law, under and by Virtue of a Writ of Execution issued on the !2tb day of June Anno Domini 2002 out of the Court of Common Pleas of Cumberland County, Pennsylvania, as of Civil Term, Two Thousand and One (2001) Number 6380 at the suit of Bank of America~NA a~ainst Joseph Edward Martin and Patricia Ann Martin. In Witness Whereof, I have hereunto affixed my signature this _24th_ day of Sept. Anno Domin/Two Thousand and Two (2002) Ri Thomas Kline, Shehff ~ Commonwealth of Pennsylvania, ss. County of Cumberland Before the undersigned, Curtis R. Long, ProthonotaEy of the Court of Common Pleas of Cumberland County, Pennsylvania, personally appeared R. Thomas Kline, Sher/ff of tm mberlan,~ ~' · -'~' ,-, county aforesa/d, and in due form of law declared that the facts Set forth h~ the foregoing Deed are true, and that he acknowledged the same in order that Said deed might be recorded. Wit~ess my hand and seal of said Court, this 24th day of_~_~_. Anno Domini Two Thousand and Two (2002) '. ~d Post Office address of the ~:-~.>,, Within Grantee is ~' 1000 Liber~ Ave Pi~sb~gh, PA 15222 ~ ~~ 268 8687 and described as follows, to wit: ~O~NG 2.111 acres, and being designated al Loc No. 16 on a Final Plan of Subdivision of Monroe Meadows, prepared for Kimba, Inc., by Statler and Lahr, Registered Engineers, dated November.24, 1986, and recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Eoo~ 53, at Page 34. BEING THE SAME PREMISES which Kimba, Inc., a Corporation by Deed'dated November 7, 1987 and recorded in Cumberland County Deed Book B, Volume 33, Page 175, gcant~d and conveyed unto Joseph E. Ma~-tln and Patricia A. Martin, hie wife. Exhibit "C" SPEAR AND HOFFMAN, P.A. BY: KEVIN P. DISKIN, ESQUIRE ATTORNEY I.D. NO. 86727 1020 NORTH KINGS HIGHWAY, SUITE 210 CHERRY HILL, NEW 7ERSEY 08034 (609) 755-1560, FAX (609) 755-1570 ATTORNEY FOR PLAINTIFF HAR 2 2 20D4 DEPARTMENT OF VETERANS AFFAIRS, PLAIN VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA, DEFENDANT(s) COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 03-4463 CIVIL TERM AND NOW, this ORDER day of ['~["& ,200___~/, pursuant to Plaintiff, s Motion for Special Service and accompanying Memorandum of Law in Support thereof, it is hereby ORDERED that Plaintiff s Motion is hereby GRANTED; Service shall be deemed proper upon the following methods: certified and regular mail Publication in a paper of General Distribution Posting Property located at: 318 STUMPSTOWN ROAD MECHANICSBL~G, PA 17055 Other, as required by the Court: It is further ORDERED that ail subsequent pleadings shall be deemed properly served upon defendants by the above methods of service or the methods of service as prescribed by Rule 440 of the PennsYlvania Rules of Civil Procedure regarding service of legal papers other 'than original process without further application to this Court for allowance of special service. Exhibit "D" Spear & Hofflnan, P.A. BY: Kevin P. Diskin, Esquire Attorney I.D. No. 86727 1020 N. Kings Highway, Suite 210 Cherry Hill, NJ 08034 (856) 755-1560 Facsimile: (856) 755-1570 Attorney for Plaintiff DEPARTMENT OF VETERANS AFFAIRS 500 WISSAHICKON AVENUE PHILADELPHIA, PA 19144 PLAINTIFF, VS. COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 034463 CIVIL TERM FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA 1730 W. OLYMPIC BLVD., SUITE 500 LOS ANGELES, CA 90015 DEFENDANT(S) CERTIFICATION OF SERVICE 1 hereby certify that on the ~ day of, ~', ,20 O I have served a tree and correct copy of the Reinstated Complaint in Quiet Title on all parties named herein at the address listed below by first class mail and Certified U.S. mail pursuant to signed Order of Court for Motion for Special Service, dated MARCH 24, 2004, attached as Exhibit "A" FIRST ALLEGIANCE FINANCIAL ROBERT LABBE, DIRECTOR 2933 CORTE PORTOFINO NEWPORT BEACH, CA 92660 FIRST ALLEGIANCE FINANCIAL NIELMA BASSIG, SECRETARY 2171 PACIFIC AVENUE, #303 SAN FRANCISCO, CA 94115 CITY NATIONAL BANK OF WEST VIRGINIA 3601 MAC CORKLE AVENUE, SE CHARLESTON, WV 25304 FIRST ALLEGIANCE FINANCIAL 17748 SKY ]?ARK CIRCLE IRVINE, CA 92614 NATIONAL BANK OF WEST VIRGINIA LEGAL DEPARTMENT 1730 WEST OLYMPIC BLVD., SUITE 500 LOS ANGELES, CA 90015 SPEAR & HOFFMAN, P.A. '/~evin P. Di~I~in, ~" Attorney for Plaintiff SPEAR AND HOFFMAN, P.A. BY: KEVIN P. DISKIN, ESQUIRE ATTORNEY I.D. NO. 86727 I020 NORTH KINGS HIGItWAY, SUITE 210 CHERRY HILL, NEW JERSEY 08034 (609) 755-1560, FAX (609) 755-1570 ATTORNEY FOR PLAINTIFF HAR 2 2 2004 DEPARTMENT OF VETERANS AFFAIRS, PLAINTIFF, VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST Vn~GINIA, DEFENDANT(s) AND NOW, this /~q ''~ COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 034463 CIVIL TERM ORDER ~ day of ['~['& , 200 ~, pursuant to Plaintiff~s Motion for Special Service and accompanying Memorandum of Law in Support thereof, it is hereby ORDERED that Plaintiff's Mod6n is hereby GRANTED; Service shall be deemed proper upon the following methods: certified and regular mail Publication in a paper of General Distribution Posting Property located at: 318 STUMPSTOWN ROAD MECHANICSBU]RG, PA 17055 Other, as required by the Court: It is further ORDERED that all subsequem pleadings shall be deemed properly served upon defendants by the above methods of service or the methods of service as prescribed by Rule 440 of the Pennsylvania Rules of Civil Procedure regarding service oflegal papers other than original process without further application to this Court for allowance of special service. VERIFICATION I, Kevin P. Diskin, ESQUIRE, verify that I am the attomey for the plaintiffin this action and that the foregoing Motion for Summary Judgment is true and correct to the best of my knowledge, information andbelief. I understand that false statements herein aremade subjectto the penalties ofl8 Pa.C.S.A. §4904 relating to unswom falsification to authorities. DATE: N, ESQI~ Attorney for Plaintiff JUL 2 3 SPEAR AND HOFFMAN, P.A. BY: KEVIN P. DISKIN, ESQUIRE ATTORNEY I.D. NO. 86727 1020 NORTH KINGS HIGHWAY, SUITE 210 CHERRY HILL, NEW JERSEY 08034 (609) 755-1560, FAX (609) 755-1570 ATTORNEY FOR PLAINTIFF DEPARTMENT OF VETERANS AFFAIRS, PLAINTIFF, VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA, DEFENDANT(S) AND NOW, this COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 03-4463 CIVIL TERM OR ~ER day of J*d7 ,200'/, pursuant to Plaintiff's Motion for Quiet Title and accompanying Memorandum of Law in SupporL thereof, it is hereby ORDERED that Plaintiff's Motion is hereby GRANTED and Defendants has thirty (30) days to either file a Petition to Set Aside Sheriff Sale or Purchase the subject property from Plaintiff. If Defendant fails to perform o1~' ~,~, u..[ll either optionl~efendant s lien/mortgage J~ deemed invalid against the property known as 318 Stumpstown, Mechanicsburg, Pa 17055. SPEAR AND HOFFMAN, P.A. KEVIN P. DISKIN, ESQUIRE · PA A'I~roRNEY I.D. # 86727 1020 N. KINGS HWY., STE 210 CHERRY HILL, NJ 08034 ATTORNEY FOR PLAINTIFF 856-755-1560 856-755-1570 (FAX) DEPARTMENT OF VETERANS AFFAIRS: 500 WISSAHICKON AVENUE PHILADELPHIA, PA 19144 PLAINTIFF VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA 1730 W. OLYMPIC BLVD. SUITE 500 LOS ANGELES, CA 90015 DEFENDANT COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO.: 03-4463 Civil MOTION TO GRANT QUIET TITLE PURSUANT TO COURT ORDER Plaintiff is Department of Veterans Affairs, whose principal place of business is located at 500 Wissahickon Avenue, Philadelphia, PA 19144. 2. Defendant is First Allegiance Bank, an LPO of City National Bank of West Virginia, which maintains an address at 17748 Skypark Blvd., #100, Irvine, CA 92614. 3. This actions pertains to property located at 318 Stumpstown Road, Mechanicsburg, PA 17055, which is more particularly described in the legal description attached hereto, made part hereof and marked as Exhibit "A". 4. Plaintiff, Department of Veterans Affairs obtained the property at a sheriffs sale at the Cumberland County SherifFs Office on September 4, 2002 as a result of a Mortgage Foreclosure Action and Judgment against Joseph Edward Mm:tin and Patricia Ann Martin at civil docket number 2001-6380 and assignment of the bid frora Bank of America, N.A. A true and correct copy of Sheriff's deed is attached hereto, made p~rt hereof and marked as Exhibit 5. Bank of America, N.A. foreclosed as the first mortgagee on the subject property 6. Defendant holds a junior mortgage on the property. · 7. Pursuant to Pennsylvania Rules of Civil Procedure,, Rules 3129.1 and 3129.2, Plaintiff in a foreclosure action is required to notify all lien holders and interested parties of the sheriff's sale at least thirty days prior to the sale. 8. Bank of America, N.A. failed to name Defendant as a lien holder and failed to notify Defendant of the September 4, 2002 sale by first class mail. 9. On July 22, 2004 Plaintiff filed a Motion to Grant Quiet Title, due to Defendant failure to file an Answer. A true and correct copy of the Motion to Grant Quiet Title is attached hereto, made part hereof and marked as Exhibit "C". 10. On July 26, 2004, this Honorable Court Ordered "'that Plaintiff's Motion is hereby Granted and Defendants has thirty (30) days to either file a Petition to Set Aside Sheriff Sale or Purchase the subject property from Plaintiff. If Defendant fails to perform either option upon Motion Defendant's lien/mortgage will be deemed invalid against the property known as 318 Stumpston, Mechanicsburg, PA 17055. A true and correct copy of the July 26, 2004 Order is attached hereto, made part hereof and marked as Exhibit "D". 11. Defendant has failed to perform to either option as dictated in this Honorable Court~ July 26, 2004 Order. 12. Pursuant to the July 26, 2004 Order, plaintiffrespectively requests that this Honorable Court Order Defendant's lien/mortgage invalid against the subject property. WHEREFORE, Plaintiffrespectfully requests that this Honorable Court enter judgment in its favor and against Defendant and invalidate Defendant's ][ien as a matter of law by ordering the Recorder's office to cancel the defendant's mortgage on the property. Respectfully submitted, SPEAR AND HOFFMAN, P.A. / KEVIN e. D[SEylN, ESQUIRE /' PA I.D #86727 KEVIN P. DISKIN, ESQUIRE PA ATTORNEY I.D. # 86727 1020 ~. KINGS HWY., STE 210 CHERRY HILL, NJ 08034 ATTORNEY FOR PLAINTIFF 856-755-1560 856-755-1570 (FAX) DEPARTMENT OF VETERANS AFFAIRS: 500 WISSAHICKON AVENUE PHILADELPHIA, PA 19144 PLAINTIFF VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA 1730 W. OLYMPIC BLVD. SUITE 500 LOS ANGELES, CA 90015 DEFENDANT COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO.: 03-4463 Civil BRIEF 1N SUPPORT OF PLAINTIFF'S MOTION TO ,GRANT QUIET TITLE Plaintiff is Department of Veterans Affairs, whose principal place of business is located at 500 Wissahickon Avenue, Philadelphia, PA 19144. Defendant is First Allegiance Bank, an LPO of City National Bank of West Virginia, which maintains an ad,ffess at 17748 Skypark Blvd., # 100, Irvine, CA 92614. This actions pertains to property located at 318 Stumpstown Road, Mechanicsburg, PA 17055. Plaintiff, Department of Veterans Affairs obtained the property at a sheriff's sale at the Cumberland County Sheriff's Office on September 4, 2002 as a result of a Mortgage Foreclosure Action and Judgment against Joseph Edward Martin and Patricia Ann Martin at civil docket number 2001-6380 and assignment of the bid from Bank of America, N.A. Bank of America, N.A. foreclosed as the first mortgagee on the subject property. Defendant holds a junior mortgage on the property. Pursuant to Pennsylvania Rules of Civil Procedure, Rules 3129.l and 3129.2, Plaintiffin a foreclosure action is required to notify all lien holders and interested parties of the sheriff's sale at least thirty days prior to the sale. Bank of America, N.A. failed to name Defendant as a lien holder and failed to, notify'Defendant of the September 4, 2002 sale by first class mail. Notice of the sale was properly posted on the property itself and published by the sheriff once a week for three successive weeks in a newspaper of general circulation. A sheriff sale of real estate normally discharges all juni°r liens °n the property, with some statutory exceptions. Defendant's lien does not fall within those exceptions. The Pennsylvania Rules of Civil Procedure do not provide a remedy for failure to notify junior lien holders by first class mail. Plaintiffis prepared and willing to offix to Defendant the opportunity to purchase the property from Plaintiff for the amount of Plaintiff's judgment on the property, plus 6% legal rate of interest from time of judgment to the time of sale, plus sheriff's costs at the time of the sale. Plaintiff filed this current action pursuant to pennsylvania Rtfles of Civil Procedure, Rule 1061 (b)(2) and (3) to compel Defendant either to file a Petition to Set Aside the Sale and Impound the Sheriff's Deeds or tender a release of its lien/mortgage on the subject property. On March 24, 2004 this Honorable Court granted Plaintiff's Motion for Special Service. In that order this Honorable Court granted that service shall be deemed proper by certified and regular mail and the posting of the subject property located at 318 Stumpstown Rd., IvIechanicsburg, Pa 17055. On April 6, 2004, Plaintiff filed a Certificate of Service with this Hunorable Court certifying that the March 24, 2004 Order had been complied with and service is completed. Defendant has failed to file an Answer to Plaintiff's Complaint. Plaintiff requests the Court to Order that service of the within Complaint operate as service of the Notice of the Sale pursuant to Rule 3129.2 nunc pro tune. If Defendant has not accepted Plaintiff' s offer to purchase the property within 30 days of service of the within Complaint, Plaintiff requests the court to enter an order invalidating Defendant's lien/mortgage on the subject property. Exhibit "A" 7, 1987 and recorded in Cumberland County Deed Book B, Volume 33, Page 175, ~.., ?j~ in th~ o~iCe for the recordi~3g Exhibit "B" %ax Parcel No. 22-11-0278-058_ Know all Men by these Presents That I, R. Thomas Kline, Sheriff of the County of Cumbsrland, In the State of Pennsylvania, for and in consideration of the sum of $1.00.., (on.__e dollar), to me in hand paid, do hereb?.~ant a~d convey to Department of Veterans Affair~ REAL ESTATE SALE No. 59 Writ No. 2001-6380 Civil Term Bank of America, NA vs Joseph Edward Martin and Patficia Ann Martin Arty: Thomas J. Hornbeck DESCRIPIION ALL THAT CERTAIN tract of land situate in the Township of i Monroe, County of Cumberland and · State of Pennsylvania, being more pth-'ficulariy bounded and described ' as follows, to wit: BEGINNING at a steel pin set on the westernmost dedicated fight- of-way line of the Smrapstowa Road (T-570), said pin ma~king the cram'non point of adjolner of Lots Nos, 16 and 17 on the hereinafter mentioned Plan of Subdivision; thence departing il-om the Sturap- stown Road fight-of-way and extend- ing along Lot No. 17, south 67 degrees 18 minutes 28 seconds west, for a distance of 280.00 feet m a steel pin; thence extending along Lots Nos. 17, 18 and 19, south 2I degrees 36 minutes 51 seconds east for a distance of 320.00 feel to a steel pin at a fence line at lands now or formerly of Magaro; thence extending along lands now or for- m~rly of Magaro, south 67 degrees 18 minutes 28 seconds west, for a distance of 205.D0 feet to a steel pin at Lot No. 15 on the hereinafter men- tioned plan of subdivision; thence extending along Lot No. 15 the fol- lowing three courses and distances: No~.h 04 degrees 29 minutes 33 seconds West. for a distance of 420.00 feet to a steel pin; thence c~ontinu- lng North 67 degrees 18 minutes 28 seconds East, for a distance of 260 feet to a steel pin set on the western- most dedicated fight-of-way line of the Sturapstown Road; thence extend- ing in and along the westernmost dedicated right-of-way line of the Stumpstown Road, south 21 degrees 36 minutes 51 seconds east for a distance of 120.00 feet to a steel pin on sa~d dedicated fight-of-way line of Lot No. 17 on the hereinafter mentioned plan of subdi¥i_si_o_nus_al.d CONTAINING 2.i 1i acres, and being designated as Lot No. 16 on a final plan of subdivision of Monroe Meadows, prepared for Kima, Inc., by Statler and Lahr, Registered Engineers. BEING the same premises which Kima, Inc. by deed dated Novem- ber 07, 1987 and recorded Novem- ber 19, 1987, in the Reeordes's Office in and for Cumberland, Pennsylva- nia, in Deed Book Volume 833 Page 175, granted ned conveyed unto Joseph Edward Martin and Palricia Arm Martin, husband and wife, 0m mortgagor hesein. In Witness Whereof, I have hereunto affixed my signature this 24~ day of 5~pt. Anno Domini Two Thousand and Two (2002) Thomas Kline, Sheriff Commonwealth of Pennsylvania, ss. County of Cumberland Before the tmdersigned, Curtis R. Long, Prothonotary of the Court of Conunon Pleas of Cumberland County, Pennsylvania, personally appeared R. Thomas Sheriff of Cumberland Cotmty aforesaid, and in due form of law declared that the facts Set forth in file foregoing Deed are true, and that he aclmowledged the same in order that Said deed might be recorded. Witness my hand m~d seal of said Cmtrt, this 24th day of_sept. Auno Dom/nj Two Thousand and Two (2002) A2~d Post Office addr~ss'~fthe -- ":: Witkin Crra:atee is 1000 Liberty Ave. '~' '~" ~' Pittsburgh, PA 15222 7, 1987 and recorded in Cumberland County Deed Book B~ Volume 33, Page 175, ?a..e same having been sold by me to the said grantee on the 4t]~_ day of September Anno Domini Two Thousand mad Two (2002) after due advertisement according to law, under and by Virtue of a Writ of Execution issued on the 12th day of June Anno Domini 2002 out of the Court of Common Pleas of Cumberland County, Pemxsylvania, as of Civil Term, Two Thousand and One (2001) Number 6380 at the suk of Bank of America~/NA against Joseph Edward Martin and Patrieia Ann Martin. SPEAR AND HOFFMAN, P.A. KEVIN P. DISKIN, ESQUIRE PA ATTORNEY I.D. # 86727 1020 N. KINGS HWY., STB 210 CHERRY HILL, NJ 08034 ATTORNEY FOP,. PLAINTIFF 856-755-1560 856-755-1570 (FAX) DEPARTMENT OF VETERANS AFFAIRS: 500 WISSAHICKON AVENUE PHILADELPHIA, PA 19144 PLAINTIFF VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA 1730 W. OLYMPIC BLVD. SUITE 500 LOS ANGELES, CA 90015 DEFENDANT COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO.: 0%4463 Civil~:;i¢} MOTION TO GRANT QUIET TITLE 1. Plaintiffis Department of Veterans Affairs, whose principal place of business is located at 500 Wissahickon Avenue, Philadelphia, PA 19144. 2. Defendant is First Allegiance Bank, an LPO of City National Bank of West Virginia, which maintains an address at 17748 Skypark Blvd., #100, Irvine, CA 92614. 3. This actions pertains to property located at 318 Stumpstown Road, Mechanicsburg, PA 17055, which is more particularly described in the legal description attached hereto, made part hereof and marked as Exhibit "A". 4. Plaintiff, Department of Veterans Affairs obtained the property at a sheriff's sale at the Cumberland County Sheriff's Office on September 4, 2002 as a result of a Mortgage Foreclosure Action and Judgment against Joseph Edward Martin and Patricia Ann Martin at civil docket number 2001-6380 and assignment of the bid from Bm~k of America, N.A. A tree · and correct copy of Sheriff's deed is attached hereto, made part hereof and marked as Exhil~it Bank of America, N.A. foreclosed as the first mortgagee on the subject property. Defendant holds a junior mortgage on the property. Pursuant to Pennsylvania Rules of Civil Procedure, Rules 3129.1 and 3129.2, Plaintiffin a foreclosure action is required to notify all lien holders and interested parties of the sheriff,s sale at least thirty days prior to the sale. 8. Bank of America, N.A. failed to name Defendant as a lien holder and failed to notify Defendant of the September 4, 2002 sale by first class mail. 9. Notice of the sale was properly posted On the property itself and published by the sheriff once a week for three successive weeks in a newspaper of general circulation. 10. A sheriff sale of real estate normally discharges all junior liens on the property, with some statutory exceptions. Defendant's lien does not fall within those exceptions. 10. The Rules of Civil Procedure do not provide a remedy for failure to notify junior lien holders~ by first class mail. 11. Plaintiff is prepared and willing to offer to Defendant the opportunity to purchase the property from Plaintiff for the amount of Plaintiff's judgment on the property, plus 6% legal rate of interest from time of judgment to the time of sale, plus sheriff's costs at the time of the sale. 12. This action is brought pursuant to Pennsylvania Rules of Civil Procedure, Rule 1061 (b)(2) and (3) to compel Defendant either to file a Petition to Set Aside the Sale and Impound the Sheriff's Deeds or tender a release of its lien/mortgage on the subject property, ~13. On March 24, 2004 this Honorable Court granted Plaintiff's Motion for Special ' Service. In that order this Honorable Court granted that service shall be deemed proper by certified and regular mail and the posting of the subject property located at 318 Stumpstown Rd., Mechanicsburg, Pa 17055. A tree and correct copy of the March 24, 2004 order i§ attached hereto, made part hereof and marked as Exhibit "D". 14. On April 6, 2004, Plaintiff filed a Certificate of Sermce with this Honorable Court certifying that the March 24, 2004 Order had been complied with and service is completed. A true and correct copy of Plaintiff's Certificate of Service is attached hereto, made part hereof and marked as Exit/bit "E". 15. Defendant has failed to file a response to Plaintiff's Complaint in Quiet Title' 15. Plaintiff requests the Court to Order that service of the within Complaint operate as service of the Notice of the Sale pursuant to Rule 3129.2 nunc pro tune. 16. If Delendant has n°t accepted Plaintiff's °ffer t° prmchase the pr°perty within 30 days of service of the within Complaint, Plaintiff requests the court to enter an order invalidating Defendant's lien/mortgage on the subject property. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in its favor and against Defendant and invalidate Defendant's lien as a matter of law by ordering the Recorder's office to cancel the defendant's mortgage on the property. Respectfully submitted, SPEAR AND HOFFMAN, P.A. / 'vm P. PA I.D #867~>-7 KEVIN P. DISKIN, ESQUIP,.E PA ATTORNEY I.D. # 86727 1020 N. KINGS HWY., STE 210 CIJ~RRy HILL, NJ 08034 ATI~ORNEY FOR PLAINTIFF 856-755-1560 856-755-1570 (FAX) DEPARTMENT OF VETERANS AFFAIRS: 500 WISSAHICKON AVENUE : PHILADELPHIA, PA 19144 : PLAINTIFF VS. COURT OF COMMON PLEAS CUMBERLAND COUNTY FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST DOCKET NO.: 03-4463 Civil VIRGINIA 1730 W. OLYMPIC BLVD. SUITE 500 LOS ANGELES, CA 90015 DEFENDANT BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO GRANT QUIET TITLE Plaintiff is Department of Veterans Affairs, whose principal place of business is located at 500 Wissahickon Avenue, Philadelphia, PA 19144. Defendm*t is First Alleg/ance Bm~k, an - LPO of City National Bank of West Virginia, which maintains an address at 17748 Skypark Blvd., #100, Irvine, CA 92614. This actions pertains to property located at 3 l 8 Stumpstown Road, Mechanicsburg, PA 17055. Plaintiff, Department of Veterans Affairs obtah~ed the property at a sheriffs sale at the Cmnberland County Sheriffs Office on September 4, 2002 as a result of a Mortgage Foreclosure Action and Judgment against Joseph Edward Martin and Patricia Ann Martin at civil docket number 2001-6380 and assignment of the bid from Bank of America, N.A. Btmk of America, N.A. foreclosed as the first mortgagee on the subject property. Defendant holds a junior ~mortgage on the property. pursuant to Pennsylvania Rules of Civil Procedure, Rules 3129.1 and 3129.2, Plaintiff in a foreclosure action is required to notify all lien holders and interested parties of the sheriffs sale at least thirty days prior to the sale. Bank of America, N.A. failed to name Defendant as a lien holder and failed to notify Defendant of the September 4, 2002 sale by first class mail. Notice of the sale was properly posted on the property itself and published by the sheriff once a week for three successive weeks in a newspaper of general circulation. A sheriff sale of real estate normally clischarges all junior liens on the property, with some statutory exceptions. Defendant's lien does not fall within those exceptions. The Permsylvarfia Rules of Civil Procedure do not provide a remedy for failure to notify junior lien holders by first class mail. Plaintiff is prepared and willing to offer to Defendant the opportunity to purchase the property from Plaintiff for the amount of Plaintiff's judgment on the property, plus 6% legal rate of interest from time of judgment to the time of sale, plus sheriff s costs at the time of the sale. Plaintiff filed this current action pursuant to Pennsylvania Rules of Civil Procedure, Rule 1061 (b)(2) and (3) to compel Defendant either to file a Petition to Set Aside the Sale and Impound the Sheriff's Deeds or tender a release of its lierdmortgage on the subject property. On March 24, 2004 this Honorable Court granted Plaintiff s Motion for Special Service. In that order this Honorable Court granted that serv!ce shall be deemed proper by certified and regular mail and the posting of the subject property locate~t at 318 Stumpstown Rd., Mechanicsburg, Pa 17055. On April 6, 2004, Plaintiff filed a Certificate-of Service with this Honorable Court certifying that the March 24, 2004 Order had been complied with and service is completed. Defendant has failed to file an Answer to Plaintiff s Complaint. Plaintiff requests the Court to Order that service of the within ~,omplamt operate as service of the Notice of the Sale pursuant to Rule 3129 2 nunc pro tumc. If Defendant has not accepted Plaintiff's offer to purchase the property within 30 days of service oftkte within Complaint, Plaintiff requests the court to enter an order invalidating Defendant's lien/mortgage on the subject property. Exhibit "A" of the $~umpatow~ ~oa~ (T-5?O), said piu ma=kinE the common polu~ o~.~dJoiner 7, 1987 and recorded in Cumberland COunty Deed Book B, Volume 33, Page 175, granted and conveyed unto Joseph E. Mar~in and Patricia A. Martin, his wife. " ','. 'd ~d in tt~e off~ce for the recordi~g of Deeds 'Extlibit "B" Tax parcel No. 22-11-0278-058 Know all Men by these Presents ~'. ~?DE? OF DEE[)S That I, R. Thomas Kline, Sheriffof the County of Cumbarland, In the State of Pennsylvania, for and in consideration, of the sum of $1.00, (.one dollar), to me in hand paid, do hereby grant and convey to Department of Veterans Affairs REAL ESTATE SALE No, 59 CONTAINING 2. i 1! acres, and Writ No. 2001-6380 Civil Term Bank of Amedca, NA vs Joseph Edward Martin and Patricia Ann Martin Arty: Thomas J. Hombeck DESCII31~flON , ALL THAT CERTAIN tract of ' land situate in the Township of. · Monroe, Coun~ of Cumberland and State of Peansylvanla, being more . particularly bounded and described '~ as follows, to wit: BEGINNING at a steel pin set on the westernmost dedicated right- of-way line of the Smmpstown Road (T-570), said pin marldng the common point of adjoiner of Lots Nos. 16 and 17 on the hereinafter mentioned Plan of Subdivision; thence departing fi'om the Stump stown Road fight-of-way and extend- ing along Lot No. 17, south 67 degrees 18 minutes 28 seconds west, tbr a distance of 280.00 feet to a steel pin; thence extending along Lots Nos. 17, 18 and 19, south 21 degrees 36 minutes 51 seconds east for a distance of 320.00 fee~ to a steel pin at a fence line at lands now or formerly of Magaro; thence extending along lands now or for- merly of Magaro, south 67 degrees lB minutes 28 seconds west, for a distance of 205.00 feet to a steel pin at Lot No. 15 on the hereinafter men- tioned plan of subdivision; thence extending along Lot No. 15 the fol- lowing three courses and distances: North 04 degq'~es 29 minutes 33 seconds Wesl, for a distance of 420.00 feet to a ste~l pin; thence continu- ing North 67 degrees lB minutes 28 seconds East, for a distance of 260.00 feat to a steel pin set on the western- mom dedicated fight-of-way line of the Stumpstown Road; thence v~xtead- ing in and along the westernmost dedinated right-of-way llne of the Stumpstown Road, south 21 degrees 36 minutes 51 seconds east for a distance of 120.00 feet to a steel pin on said dedicated right-of-way line of Lot No. 17 on the hereinafter mentioned ~>tan of subdivision, said being designated as Mn No. 16 on a final plan of subdivision of Monroe Meadows, prepared fca: lrdma, Inc., by Statler and Latu', Registered Engineers. BEING thc same p~emises which Kham, Inc. by deed dated Novem- ber 07, 1987 and recorded Novem- ber 19, 1987, in the Recorder's Office in and for Cumberland, Pennsylva- nia, in Deed Book Vohtme 833 Page 175, granted and conveyed unto Joseph Edward Martin and Patfidin Ann Martin, husband and wife tim mortgagor herein. 253 In Witness Whereof, I have hereunto affixed my signature this 24th day of 8ope. Anno Domird Two Thousand and Two (2002) Commonwealth of Pennsylvania, ss. County of Cumberland Before the undersigned, Curtis R. Long, Prothonotary of the Court of Common Pleas of Cmmberland County, Pennsylvania, personally appeared R. Thomas ICI/ne, Sheriff of Cumberland County aforesa/d, and/n due forrn of law declared that the facts Set forth in the foregoing Deed are true, and that he acknowledged the same in order that Said deed might be recorded. Witness myhand and seal of said Court, this 24eh day ofJ~pt. Anno Dom/ni Two Thousand mad Two (2002) And Post Office address of the With/n Grantee is 1000 Liberty Ave. Pittsburgh, PA. 1522~2/7.,,,7 / Sol{clt~r t' ' ~ - 7, 1987 and recorded in Cumberland County Deed Book B, Volume 33, Page 175~ granted and comveyed unto Joseph ~. Martin and Patricia A. Martin, his wife. ¥ -m~y'O{ Cumb~rlnpd ,~ · " ' ::...~, .j ~ fl in the office for tt~ recording Of D~ R~oorder he same having been sold by me to the said grantee on the 4t~[ day of September Anno Domini Two Thousand and Two (2002) after due advertisement according to law, under and by Virtue of a Writ of ExeCution issued on the 12th day of June Anno Domini 2002 out of the Court of Common Pleas of Cumberland County, Pennsylvania, as of Civil Term, Two Thousand and One (2001) Number 6380 at the suit of Bank of Ameriea~INA a~ainst Joseph Edward Martin and Patrieia Ann Martin. SPEAR A/ND HOFFMAN, P.A. BY: ICEVIN P. DISKIN, ESQIJIRE ATTOPdgBY I.D. NO. 85727 1020 NORTIZf KINGS HIGHWAY, SDI'I'~ 210 CRqERRY HILL, NEW JERSEY 08034 (609) 755-1560, FAX (609) 755-1570 ATTORNEY FOR PLAINTIFF DEPARTMENT OF VETERANS AFFAIRS, PLAIN'I VS. COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCI~T NO. 034463 CIVIL TERM FIRST ALLEGIANCE BANff. AN LPO OF CITY NATIONAL BANK OF WEST VIRGIlqlA, DEFENDANt(S) ORDER ayo fq & Special Service and accompanying Memorandum of Law in Support thereof, it is hereby ORDERED that Plaintiff s Motion is hereby GRANTED; Service shah be deemed proper upon the following methods: certified and regular mall Publication in a paper of General Distribution Posting Property located at: 318 STUMPSTOWN ROAD MECIIANICSBURG,, PA 17055 Other, as required by the Court: It is further ORDERED that all subsequent pleadings shall be deemed properly served upon defendants by the above methods of service or the methods of service as prescribed by Rule 440 of the Pennsylvania Rules of Civil Procedure regarding service of legal papers Other than original prbeess with out further application to tkis Court for allowance of special service. Exhibit "D" · Spear & Hofflmn, P.A. BY: Kevin P. Diskin, Esquke Attorney I.D. No. 86727 1020 N. Kings Highway, Suite 210 Cher~y H~iI, NJ 08034 , (856) 755-1560 Facsimile: (856) 755-1570 Attorney. for plaintiff DEPARTMENT OF VETERANS AFFAIRS' . 500 WISSAHICKON AVENUE pHILADELPHIA, PA 19144 PLAINTIFF, VS, COURT OF COMMON PLEAS CUMBERLANI) COUNTY DOCKET NO. 034463 CIVIL. TEILM FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA 1730 .W. OLYMPIC BLVD., SUITE 500 LOS ANGELES, CA 90015 DEFENDANT(S) CERTIFICATION OF SERVICE I hereby certify that on the ~ dayof/~'f,~ i ,20.,~ I have served a true and correct copy of the Reinstated Complaint in Quiet Titie on ail parties named herein at the address listed below by first class mail and Certified U.S. mail pursuant to signed Order of Court for Motion for Special Service, dated MARCH 24, 2004, attached as Exhibit "A" FIRST ALLEGIANCE FINANCIAL ROBERT LABBE, DIRECTOR 2933 CORTE PORTOFINO NEWPORT BEACH, CA 92660 CITY NATIONAL BANK OF WEST VIRGINIA 3601 MAC CORKLE AVENUE, SE CHARLESTON, WV 25304 FIRST ALLEGD%NCE FINANCIAL NIELMA BASSIG, SECRETARY 2171 PACIFIC AVENUE, #303 SAN FRANCISCO, CA 94115 FIRST ALLEGL~,NCE FINANCIAL 17748 SKY PAtLK CIRCLE IRVINE, CA 92614 NATIONAL BANK OF WEST VIRGINIA LEGAL DEPARTMENT 1730 WEST OLYMPIC BLVD., SUITE 500 LOS ANGELES, CA 90015 SPEA & HOFmVIAN, ~/Attorney for Plaintiff SPEAR AND HOFFMAN, P.A. BY: KEVIN P. DISKIN, ESQUI!RE ATTORNEY I.D. NO. 86727 1010 NORTH KINGS 'HIG!4~.AY, SI/fIE 210 CHERRY HILL, NEW JERSEY 08034 (609) 755-1560, F.AxX (609) 755-1570 ATTORNEY FOR pLAINTIFF DEPARTMENT OF VETERANS AFFAIRS! VS. COURT OF COMMON PLEAS CUMBERLAND COOq~ DOCKET NO. 034463 CIVIL TERM FIRST ALLF_.GIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WF.,ST VIRGINIA, DEFENDANT(S) ORDBI% ~ AND NOW, tiffs fl,,~ q~. day°f ~' 200 4' pursuant t° Plain~f's M°ti°n f°r · Special Service and accompanying Memorandum of La~ ~ Support t.hereof, it is hereby ORDERED that Plak~tiff s Moti6n is hereby GRANTED; Service shall be deemed proper upon the following methods: certified and regular mail Publication in a paper of General Dis~bution Posting Property located at: 318 STUMPSTO55rN ]ROAD MEC~IANICSBURG, PA 17055 Other, as required by the Court: It is further ORDERED that all subsequent pleadings shall be deemed properly served upon defendmats by the above methods of service or the methods of service as prescribed by Rule 440 of the Pennsylvania Rules of Civil Procedure regarding service of legal papers other tt~m original process without further application to this Court for allowance of special service. VERI~CA~ON I, Kevin P. Diskin, ESQUIRE, verify that I am the attorney for the plaintiffin this action and that the foregoing Motion for Summary Judgment is tree and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unswom falsification to authorities. DATE: Attomeyfor Plaintiff Exhibit "D" SPEAR AND HOFFMAN, P.A. BY: KEVIN P. DISKIN, ESQUIRE ATTORNEY I.D. NO. 86727 1020 NORTH KINGS HIGHWAY, SUITE 210 CHERRY HILL, NEW JERSEY 08034 (609) 755-1560, FAX (609) 755-1570 ATTORNEY FOR PLAINTIFF DEPARTMENT OF VETERANS AFFAIRS, PLAINTIFF, VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA, COURT OF COMMON PLEAS CUMBERLAND COUNTY DOCKET NO. 03-4463 CIVIL TERM DEFENDANT(S) ORDER AND NOW, this ~_~ day o~'~ ~[l ~_1 ~. 200J~, pursuant to Plaintiff' s Motion for Quiet Title and accompanying Memorandum of Law i~]Support thereof, it is hereby ORDERED that Plaintiff's Motion is hereby GRANTED and Defendants has thir~ (30) days to either file a Petition to Set Aside Si~riff Sale or Purcj~ase the subject property from Plaintiff. If Defendant fails to qpog mo,_Eio 4 Wi[} ba . . either o~tion~)efendant s lien/mortgage~r deemed invalid against the property lmown as 318 Stumpstown, Mechanicsburg, Pa 17055. RUE COPYi FROM RECORD T. I h~e unto O. perform VERIFICATION I, Kevin P. Diskin, ESQUIRE, verify that I am the attorney for the plaintiff in this action and that the foregoing Motion for Summary Judgment is tree and correct to the: best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unswom falsification to authorities. DATE: ESQUIRE Attorney for Plaintiff SPEAR AND HOFFMAN, P.A. · BY: K~EVIN P. DISKIN, ESQUIRE · ATTORNEY I.D. NO. 86727 1020 NORTH KINGS HIGHWAY, SUITE 210 cHERRY HILL, NEW JERSEY 08034 (609) 755-1560, FAX (609) 755-1570 ATTORNEY FOR PLAINTIFF DEPARTMENT OF vETERANS AFFAIRS, PLAINTIFF, VS. FIRST ALLEGIANCE BANK, AN LPO OF CITY NATIONAL BANK OF WEST VIRGINIA, DEFENDANT(S) ORDER 2.004 cOURT OF coMMON PLEAS cuMBERLAND COUNTY DocKET NO. 03-4463 CIVIL TERM AND NOW, this _ Z 1~' . day of ~, 200.~, pursuant to Plaintiff' s Motion for Quiet Title and in accordance with this Honorable Court's July 26, 2004 Order it is hereby ORDERED that Plaintiff's Motion is hereby GRANTED. Defendant's lien/mortgage is deemed invalid against the property known as 318 Stumpstown, Mechanicsburg, Pa 17055.