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Home My WebLink About03-5194Federman and Phelan, LLP By: Francis S. Hallinan, Esquire Identification No. 62695 One Penn Center Plaza Suite 1400 Philadelphia, PA 19103 (215) 563-7000 GE Capital Mortgage Services, Inc. 5024 Parkway Plaza Boulevard, Building 7/F/C Charlotte, NC 28217 John Barton Or Occupants 55 Gutshall Road Shippensburg, PA 17257 Attorney for Plaintiff Court of Common Pleas Civil Division Cumberland County Term No. - CI~v'I'T. ACTIOn' - r,.n~,CTMENT *~flxis firm is a debt collector atlempting 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 cons~ued to be an attempt to collect a debt, but only enforcement of a lien against property.** 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 (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 and other claim or rebel 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 or cannot afford one, go to or telephone the office set forth below to find out where you can get legal help. 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 CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 1. Plaintiff is GE Capita] Mortgage Services, Inc. 2. Defendant is Jolhn Barton Or Occupants. Plaintiff is equitable owner of premises located at 55 Gutshall Road, Shippensburg, PA 17257, a legal description of which is attached. Plaintiff became owner of said premises as a result of foreclosure and judicial sale by the Sheriff of Cumberland County, on March 5, 2003. e Plaintiff, by virtue of the above, is the equitable owner of said premises, and is entitled to possession thereof. The defendant is occupying the said premises without right and so far as the plaintiff is informed, without claim of title. Plaintiff has demanded possession of the said premises from the said defendant who has refused to dehver up possession of same. WHEREFORE, plaintiff seeks to recover possession of said premises. F/fancis S. Hallinan, Esquire Attorney for Plaintiff To~a~, C'~rla~ C~=y, Pe~mylv~a, ~e~ ~ llm~=ed as foliow~= BEING 55 GUTSHALL ROAD, SHIPPENSBUP. G, PA 17257 TAX PARCEL # 39-13-0 106-040 TITLE TO SAID PREMISES IS VESTED E~' IOHN E. BARTON BY DEED ~ROM KENNETH E. CROUSE AND MARCIA A. CROUSE, HIS WIFE DATED 9/29/I986 AND RECORDED 10/1/1986 IN' DEED BOOK F, VOLL.'NIE 32 PAGE la3. VE, BiFICAq~ION Francis S. Hallinan hereby states that he is the attorney for the Plaintiff in this eviction action and is authorized to make this verification. The statements made in the foregoing Civil Action - Ejectment are correct to the best of my knowledge, information, and belief. I was the attorney for the Plaintiff or Plaintiffs predecessor in interest in the underlying foreclosure action. I am with the law firm on the writ of execution, and my law firm or an agent of my firm purchased the property on behalf of the Plaintiff by bidding on the property at the sheriffs sale. I am making this verification rather than a representative of the Plaintiff because I have personal knowledge of the purchase of this property at sheriffs sale. The undersigned understands that this statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date ~Francis S. Hallinan, Esquire Attorney for Plaintiff SHERIFF'S RETURN - NOT FOUND CASE NO: 2003-05194 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND GE CAPITAL MORTGAGE SERVICES VS BARTON JOHN R. Thomas Kline duly sworn according to law, inquiry for the within named DEFENDANT BARTON JOHN unable to locate Him in his bailiwick. ,Sheriff or Deputy Sheriff, who being says, that he made a diligent search and but was He therefore returns the COMPLAINT - EJECTMENT , the within named DEFENDANT , BARTON JOHN 55 GUTSHALL ROAD SHIPPENSBURG, PA 17257 ALTHOUGH NUMEROUS ATTEMPTS WERE MAJDE, SERVE DEFENDANT PRIOR TO EXPIRATION. , NOT FOLrND , as to WE WERE UNABLE TO Sheriff's Costs: Docketing 18.00 Service 39.33 Not Found 5.00 Surcharge 10.00 .00 72.33 / R. Thomas Kline Sheriff of Cumberland County FEDERMAN & PHELAN /o3/2oo3 Sworn and subscribed to before me this ~ day of'~_.~ A.D. ~o~honot ary FEDERMAN AND PHELAN BY: MICHELE M. BRADFORD, ESQUIRE Identification No. 69849 One Penn Center ~ Suburban Station - Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 GE Capital Mortgage Services, Inc. 5024 Parkway Plaza Boulevard, Building 7fF/C Charlotte, NC 28217 VS. John Barton or occupants 55 Gutshall Road Shippensburg, PA 17257 Attorney for Plaintiff Court of Common Pleas Civil Dhdsion Cumberland County Term, No. 03-5194 Action in Ejectment MOTION FOR SERVICE PURSUANT TO SPECIAL ORDER OF COURT Plaintiff, by its counsel, Michele M. Bradford, Esquire moves this Honorable Court for an Order directing service of the Complaint upon the above-captioned Defendant(s) by certified mail and regular mail, and in support thereof avers as follows: 1. Plaintiff commenced this action by filing a Complaint in Ejectment. 2. Attempts to serve Defendant(s) with the Complaint have been unsuccessful. Plaintiff attempted to serve the Defendant(s) on November 3, 2003, as indicated by the Affidavit of Service attached hereto as Exhibit A. 3. 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 and the results from there are attached hereto as ExlYtbit B. 4. Plaintiff submits that is has made a good faith effort to locate the Defendant(s), but has been unable to do so. 5. Plaintiff verified through property inspection on November 25, 2003 that the property was occupied by an unknown person. WHEREFORE, Plaintiffrespectfully requests that this He,norable Court enter an Order pursuant to Pennsylvania Rule of Civil Procedure 430 directing sep?ice of the Complaint by certified mail and regular mail and posting of the premises. DATE: December 3, 2003 Michele M. Bradford, Esquire Attorney for Plaintiff EXHIBIT "A" SHERIFF'S RETURN CASE NO: 2003-05194 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND - NOT FOUND GE CAPITAL MORTGAGE SERVICES VS BARTON JOHN R. Thomas Kline duly sworn according to law, inquiry for the within named DEFENDANT BARTON JOHN ,Sheriff or Deputy Sheriff, who being says, that he made a diligent search and unable to locate Him in his bailiwick. but was He therefore returns the COMPLAINT - EJECTMENT , , NOT FOUND , as to the within named DEFENDANT , BARTON JOHN 55 GUTSHALL ROAD SHIPPENSBURG, PA 17257 ALTHOUGH NUMEROUS ATTEMPTS WERE MADE, WE WERE UNABLE TO SERVE DEFENDANT PRIOR TO EXPIRATION. Sheriff's Costs: Docketing 18.00 Service 39.33 Not Found 5.00 Surcharge 10.00 .00 72.33 ! R. Thomas Kline Sheriff of Cumberland County FEDERMAN & PHEIJ~N 11/03/2003 Sworn and subscribed to before me this day of A.D. Prothonotary EXHIBIT "B" REASONABLE INVESTIGATION AFFIDAVIT OF GOOD FAITH EFFORT INVESTIGATION LOAN NUMBER: ATTORNEY FIRM CASE NUMBER: SUBJECT: e21682596 FEDERMANAND pHELAN 2003-05194 John Barton or occupants LAST KNOWN ADDRESS: $5 Gutshall Road, Shippensburg, PA 17257 LAST KNOWN NUMBER: 717-532-6830 II. CREDIT INFORMATION A. SOCIAL SECURITY NUMBER: 169-36-1445 B. EMPLOYMENT SEARCH C. INQUIREY OF CREDITORS: Unable to locate good employer for subject INQUIRY OF TELEPHONE COMPANY A. The directory assistance has Directory Assistance lists the property address with a phone number of 717-532-6830. III. INQUIRY OF NEIGHBORS I. Contacted Wallace Bigler at 54 Gutshall Road, Shippensburg, PA (717)- 532-7938, who confirmed that the property remains occupied at this time. 2. Contacted Marvin Byers at 47 Gutshall Road, Shippensburg, PA (717)- 530-8162, who confirmed seeing recent activity at the premises. IV. INQUIRY OF POST OFFICE A. NATIONAL ADDRESS UPDATE: As of December 2, 2003, the National Change of Address (NCOA) has no change for subject from last known address. MOTOR VEHICLE REGISTRATION A. MOTOR VEHICLE AND DMV OFFICE No Motor Vehicle Registration is available for subject. VI. subject. OTHER INQUIRIES A. DEATH RECORDS As of December 2, 2003, the Social Security Administration has no death record on file for B. PUBLIC LICENSES (PILOT, REAL ESTATE, ETC) None Found C. COUNTY VOTER REGISTRATION N/a D. PROPERTY INSPECTION The subject premises was inspected onNovember 25, 2003, ami confirmed the subject premises remains occupied. VII. ADDITIONAL INFORMATION ON SUBJECT Notary Public Seal: FEDERMAN AND PHELAN BY: MICHELE M. BRADFORD, ESQUIRE Identification No. 69849 One Penn Center ~ Suburban Station - Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 Attorney for Plaintiff GE Capital Mortgage Services, Inc. 5024 Parkway Plaza Boulevard, Building 7/F/C Charlotte, NC 28217 VS. John Barton or occupants 55 Gutshall Road Shippensburg, PA 17257 Court of Common Pleas Civil Division Cumberland County Term, No. 03-5194 Action in Ejectment MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR SERVICE PURSUANT TO SPECIAL ORDER OF COURT Pennsylvania Rule of Civil Procedure 430(a) specifically provides: If service cannot be made under the applicable role, 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. Although Plaintiff has attempted to serve Defendant(s) with the Complaint, Plaintiff's attempts have been unsuccessful. A tree and con'ect copy of the Affidavit of No Service is attached hereto, made part hereof, and marked Exhibit A. Accordingly, Plaintiff ordered an investigation into the whereabouts of Defendant(s). A true and correct copy of the Affidavit of Reasonable Investigation is attached hereto, make part hereof, and marked Exhibit B. The Affidavit reflects that Plaintiff' s investigator has make at least three types of inquiries listed under Rule 403.1 (B)(1). Copies of any written responses obtained are attached to the Affidavit. The Affidavit also specifies the inquiries made, responses made, and dates thereof, in accordance with Rule 430.1(B)(2). As PlaintiWs within motion and its affidavit are both in compliance with the applicable Pennsylwmia and local rules, Plaintiff respectfully requests that its motion be granted. WHEREFORE, Plaintiff respectfully requests permission to serve the Complaint by certified mail and regular mail and posting of the premises. DATE: December 3, 2003 Respectfully submitted: Michele M. Bradford, Esquire Attorney for Plaintiff VERIFICATION Michele M. Bradford, Esquire, hereby states that she is the Attorney for the Plaintiff in this action, that she is authorized to make this verification, and that the statements made in the foregoing Motion for Service of the Complaint Pursuant to Special Order of Court are true and correct to the best of her lmowledge, 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. DATE: December 3, 2003 Michele M. Bradford, Esquire Attorney for Plaintiff FEDERMAN AND PHELAN BY: MICHELE M. BRADFORD, ESQUIRE Identification No. 69849 One Penn Center ~ Suburban Station - Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 Attorney for Plaintiff GE Capital Mortgage Services, Inc. 5024 Parkway Plaza Boulevard, Building 7/F/C Charlotte, NC 28217 VS. John Barton or occupants 55 Gutshall Road Shippensburg, PA 17257 Court of Common Pleas Civil Division Cumberland County Term, No. 03-5194 Action in Ejectment CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of the Motion for Service Pursuant to Special Order was served by first class mail on the Defendant (s) on the date listed below: John Barton or occupants 55 Gutshall Road Shippensburg, PA 17257 DATE: December 3, 2003 Michele M. Bradford, Esquire Attorney for Plaintiff GE CAPITAL MORTGAGE SERVICES, INC., Plaintiff JOHN BARTON OR OCCUPANTS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-5194 CIVIL TERM ORDER OF COURT AND NOW, this 10t~ day of December, 2003, upon consideration of Plaintiff's Motion for Service Pursuant to Special Order of Court, it is ordered and directed that Plaintiff may serve the Complaint in Ejectment upon Defendant John Barton, by (1) mailing a true and correct copy of the complaint by certified mail and regular mail to Defendant's last known address at 55 Gutshall Road, Shippensburg, PA 17257, (2) publication once in the Cumberland Law Journal and in a newspaper of general circulation in Cumberland County, Pennsylvania, and (3) posting the premises at 55 Gutshall Road, Shippensburg, PA 17257. BY THE COURT, J~/wesley Oler,qm;., J. Michelle M. Bradford, Esq. One Penn Center Plaza Suite 1400 1617 John F. Kennedy Blvd. Philadelphia, PA 19103-184 Attorney for Plaintiff FEDERMAN AND PHELAN BY: Francis S. Hallinan, Esquire I.D. #62695 Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 (215) 563-7000 GE Capital Mortgage Services, Inc. John Barton or occupants ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DMSION : Cumberland COUNTY : No. 03-5194 A FFTD AMIT OF gFRVIC'F VI A R FC'.I II.A R ~- C'I~RTIFIFD h/[ AlT. I hereby certify that a true and correct copy of the Civil Action in Ejectment in the above captioned matter was sent by Regular and certified Mail, return receipt requested, to the Following person(s) Jnhn ltartnn nv nooa,panl.~ al' ~g C;.,,l.ghall Rnarl. ghlppon~b,,*~ P on .lam,ary ~.. 90114 In accordance with the Order of Court dated D The undersigned understands that this is suk~ect to the Penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn Falsification to authorities. ~rrancis S. Hallinan, Esq ' Attorney for Plaintiff Date: J~mlary.~, 9004 SHERIFF'S RETURN - REGULAR CASE NO: 2003-05194 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GE CAPITAL MORTGAGE SERVICES VS BARTON JOHN JASON VIONJtL , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according says, the within COMPLAINT - EJECTMENT BARTON JOHN DEFENDANT at 1500:00 HOURS, at 55 GUTSHALL ROAD SHIPPENSBURG, PA 17257 POSTED PROPERTY AT 55 GUTSHALL ROAD SHIPPENSBURG, a true and attested copy of COMPLAINT - EJECTMENT to law, was served upon the on the 31st day of December , 2003 by handing to PA together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 11.73 Posting 6.00 Surcharge 10.00 .00 45.73 Sworn and Subscribed to before me this ~ day of /P~othonotary J So Answers: Thomas Kline Ol/O2/2oo FEDERMAN & PHELAN By: FEDERMAN AND PHELAN BY: Francis S. Hallinan, Esquire I.D. #62695 SUITE 1400 1 Penn Center, 1617 JFK Boulevard PHILADELPHIA, PA. 19103 (215) 563-7000 GE Capital Mortgage Services, Inc. ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DIVISION : Cumberland County : 03'5194 John Barton Or occupants ~lq'!~TT~AX~q'T I~lq' ~1~.R~1'~1~ VTA PTTRT J~ArpT~-~l I hereby certify that the above captioned matter was pubhshed in the Cnr~ho~l~-d (~al,~/.y .la,,vn~l an .l~nll~VX.r ] g, 900/ Rue] {n /-ho ,~on/.~uo] an .T~n,l~y ] 7, ~0~ pursuant to the court order dated December 10, 2003 True and correct copies of the Affidavits proving the aforementioned, are attached hereto. The undersigned understands that this is subject to the Penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn Falsification to authorities. cis S. Halhnan, Esquire ttorney for Plaintiff Date: CUMBERLAND LAW JOURNAL NOTICE OF ACTION IN EJECTMENT In the Court of Common Pleas of Cumberland County, PA Civil Action--Law No. 03-5194 GE Capital Mortgage Services, Inc., PLAINTIFF John Barion or occupants, DEFENDANT(S) EJECTMENT COMPLAINT NOTICE TO: John Barton or occupants You are hereby notified that on October 1, 2003, Plaintiff GE Capi- tal Mortgage Services, Inc. flied an EJectment Complaint endorsed with Notice to Defend, against you in the Court of Common Pleas of Cumber- land County, Pennsylvania, dock- eted at 03-5194 Civil. Wherein Plaintiff seeks to Evict all occupants at the property 55 Gutshall Road, Shippensburg, PA 17257, where- upon your property was sold by the Sheriff of Cumberland County. You are hereby notified to plead to the above referenced Complaint on or before 20 days from the date of this publication or Judgment will be entered against you. 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 (20) days after this complaint and notice are served, by entering a written ap- pearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are wamed that if you fail to do so the ease 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 troy 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 or cannot afford one, go to or telephone the office set forth below to find out where you can get legal help. 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 re- duced fee or no fee. Cumberland County Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 FRANCIS S. }IALLINAN, ESQUIRE FEDERMAN & PHELAN, L.L.P. Attorneys for Plaintiff One Penn Center Suite 1400 Philadelphia, PA 19103 {215) 563-7000 Jan. 16 PROOF OF PUBLICATION State of Pennsylvania, County of Cumberland. Rich Canazaro, Internet Director of THE SENTINEL, of the County and State aforesaid, being duly sworn, deposes and says that THE SENTINEL, a newspaper of general circulation in the Borough of Carlisle, County and State aforesaid, was established December 13th, 1881, since which date THE SENTINEL has been regularly issued in said County, and that the printed notice or publication attached hereto is exactly the same as was printed and published in the regular editions and issues of THE SENTINEL on the following dates, viz Copy of Notice of Publication January 17, 2004 deposes that he is not interested in the aforesaid notice or and that all allegations in the as to time, place and character January 21,2004 ., ~'~u' on expires: before me this 21 2004. otary Public NOTARIAL SEAL DARCIE A. NELL, Notart Carlisle, Cumberland Cou GE CAPITAL MORTGAGE SERVICES, INC., Plaintiff JOHN BARTON OR OCCUPANTS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-5194 CML TERM ORDER OF COURT AND NOW, this l0th day of December, 2003, upon consideration of PlaintifFs Motion for Service Pursuant to Special Order of Court, it is ordered and directed that Plaintiff may serve the Complaint in Ejectment upon Defendant John Barton, by (1) mailing a tree and correct copy of the complaint by certified mail and regular mail to Defendant's last known address at 55 Gutshall Road, Shippensburg, PA 17257, (2) publication once in the Cumbe~tand~Law Journal and in a newspaper of geaeral ~ei~lt~tt'0rl in ~mnbartand County, pennsylvania, and (3) posting the premises at 55 Gutshall Road, Shippensburg, PA 17257.' BY THE COURT, ~)~ esley Oler,(4~., J. TRUE COPY FROM RECORD in Testimany whereof` I here unto set my Michellfiffvl. Bradford, Esq. One~nn Center Plaza ~e 1400 1617 John F. Kennedy Blvd. Philadelphia, PA 19103-184 Attorney for Plaintiff GE CAPITAL MORTGAGE : SERVICES, INC., : Plaintiff : JOHN BARTON OR OCCUPANTS, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CWIL ACTION - LAW NO. 03-5194 CIVIL TERM TO: NOTICE TO PLEAD GE Capital Mortgage Services, Inc. Francis S. Hallinan, Esquire Federman and Phelan, LLP One Penn Center Plaza Suite 1400 Philadelphia, PA 19103 You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days from service hereof or a judgment may be entered against you. METZG,~R-) WICKERSHAM, KNAUSS & ERB, By: ~ B~ce J. Warshawsky, Es~/ Attorney I.D. No. 58799 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for Defendant dohn Barton 297689-1 GE CAPITAL MORTGAGE SERVICES, INC., Plaintiff V. JOHN BARTON OR OCCUPANTS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-5194 CIVIL TERM ANSWER WITIt NEW MATTER And now comes the Defendant, John Barton, by and through his attorneys, Brace J. Warshawsky, Esquire, and Metzger, Wickersham, Knauss & Erb, P.C. to answer the Complaint filed in the above-captioned action, and raise new matter thereto as follows: ANSWER 1. Admitted upon information and belief. By way of further response, however, it is believed that Wells Fargo is a successor in interest to Plaintiff, as the Defendant, John Barton, had been paying his mortgage to Wells Fargo. 2. Admitted in part and denied in part. It is admitted that the Defendant is John Barton. John Barton knows of no other occupant. 3. Admitted upon information and belief. 4. Admitted upon information and belief. 5. The averments of this paragraph are legal conclusions to which no response is required. To the extent that a response is deemed to be required, it is specifically denied that the Defendant, John Baron, was occupying said premises without right, as is more specifically set forth in the New Matter below. 297689-1 6. Denied as stated. Since Plaintiff became owner of the premises, the Defendant, John Barton, on numerous occasions, has attempted to contact Plaintiff regarding his occupancy of said premises, but at no time has Plaintiff ever demanded possession of the premises from the Defendant, John Barton, nor has John Barton refused to deliver possession of the premises to the Plaintiff. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss the Complaint and award him costs, attorneys' fees and other just relief. NEW MATTER 7. Defendant hereby incorporates by reference his answers to Paragraphs 1 through 6 as if more specifically set forth herein. 8. Since March 5, 2003, Defendant, John Barton, has been occupying the premises with the knowledge and acquiescence of the Plaintiff. 9. On numerous occasions, Defendant, John Barton, attempted to contact Plaintiff and Plaintiff's counsel regarding his continued occupancy of said premises, to which the Defendant, John Barton, received no response or a response that they would not speak with him. 10. The Defendant, John Barton, has never received a notice to quit or other notification that the Plaintiff wishes for him to be removed from the premises, other than this Complaint in Ejectment. 297689-I 11. The Defendant, John Barton, has tendered monies to the Plaintiff in connection with his continued occupancy of the said premises. 12. The Defendant, John Barton, has maintained insurance coverage on the premises, with Wells Fargo as an additional insured, since March 5, 2003 up through the present. 13. Plaintiff is enjoying the benefit of Defendant's continued occupancy of the premises, in that the premises are not vacant and are being insured by the Defendant, John Barton. 14. Plaintiff's occupation of the premises is a tenancy at will, because the Plaintiff is aware of Defendant's continued occupancy and has acquiesced in his continued occupancy. 15. As a tenant at will, the Defendant, John Barton, is entitled to written notification of the Plaintiff's request that he remove from the premises. 16. Alternatively, the Defendant, John Barton, is a tenant at sufferance with a continued right of possession. 17. Plaintiff's Complaint is barred by the applicable statute of limitations. 18. Plaintiff's Complaint is barred by the doctrine of estoppel. 19. Plaintiff's claim is barred by the doctrine of latches. 20. The Plaintiff would be unjustly enriched if the Defendant, John Barton, were ordered to be removed from the premises. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss the Complaint and award him costs, attorneys' fees and other just relief. 297689-1 METZGER, WICKERSHAM, KNAUSS & ERB, P.C. B Attorney I.D. No , Es ire 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for Defendant John Barton 297689-1 VERIFICATION I, John Barton, verify that the statements made in the foregoing Answer with New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements are made subject to the penalties of 18 Pa.C.S.§ 4904 relating to unsworn falsification to authorities. john, e<Bart6n .... 297689-1 CERTIFICATE OF SERVICE I, Bruce J. Warshawsky, Esquire, do hereby certify that on the date set forth below, I did serve a true and correct copy of the foregoing Answer with New Matter and upon the following person(s) at the following address(es) indicated below by sending same in the United States Mail, first-class, postage prepaid: Francis S. Hallinan, Esquire Federman and Phelan, LLP One Penn Cemer at Suburban Station 1617 JFK Boulevard Philadelphia, PA 19103-1814 Dated: METZGER, WICKERSHAM, KNAUSS & ERB, P.C. B~mce ~/V~arshaw~y, Es~ 297689-1 FED. ERMAN AND PHELAN, L.L.P. BY: Noelle A. Connor, Esquire 1NDENTIFICATION NO.: 83130 One Penn Center at Suburban Station Suite 1400 1617 J.F.K. Blvd. Philadelphia, PA 19103-1814 (215) 563-7000 GE Capital Mortgage Services, Inc. Plaintiff, VS. John Barton or Occupants Defendant. Attorney for Plaintiff COURT OF COMMON PLEAS Cumberland County CWIL DIVISION No. 03-5194-Civil Term PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER 7. Plaintiffincorporates herein by reference the averments of paragraphs one (1) through six (6) of its Complaint as if set forth herein at length. 8. Denied. By way of further response, on March 5, 2003, the subject premises was sold to the Attorney on the Writ at SherifFs Sale. On March 12, 2003, the Defendant filed for protection under Chapter 13 Bankruptcy. A tree and correct copy of the Bankruptcy docket is attached hereto, made part hereof and marked as Exhibit A. On September 3, 2003, the Plaintiffwas granted relief from the Defendant's bankruptcy. A tree and correct copy of the Relief Order is attached hereto, made part hereof and marked as Exhibit B. On September 30, 2003, the Plaintiff sent the Defendant a letter indicating that the property had been sold at Sheriff's Sale on March 5, 2003, that the Defendant was in possession of the premises without authority or permission of the Plaintiff and indicating that the Defendant must vacate immediately. A hue and correct copy of the letter is attached hereto, made part hereof and marked as Exhibit C. 9. Denied. By way of further response, the Defendant has provided no documentation whatsoever to demonstrate that he made any attempts to contact the Plaintiff or PlaintifFs counsel regarding his continued occupancy of said premises, or otherwise. 10. Denied. In a letter dated September 30, 2003 the Plaintiffspecifically advised the Defendant that he was in possession of the premises without authority or permission of the Plaintiff and that he must vacate the premises immediately. (See Exhibit C) 11. Denied. By way of further response, the Defendant has provided no documentation whatsoever to support this averment. As of March 5, 2003, when the property was sold at Sheriff's Sale, the Defendant John Barton no longer had any interest in the subject property and no right whatsoever to continue occupancy of said premises. 12. Denied. By way of further response, the Defendant has provided no documentation whatsoever to support the averments made in paragraph twelve (12). 13. Denied. In a letter dated September 30, 2003 the Plaintiff specifically advised the Defendant that he was in possession of the premises without authority or permission of the Plaintiff and that he must vacate the premises immediately. (See Exhibit C) To the contrary, Defendant John Barton continues to reside in the subject premises rent-free at the Plaintiff's expense. 14. Denied. In a letter dated September 30, 2003 the Plaintiff specifically advised the Defendant that he was in possession of the premises without authority or permission of the Plaintiff and that he must vacate the premises immediately. (See Exhibit C) The Defendant has absolutely no right oftitle to the subject property as the property was sold to the Attorney on the Writ on March 5, 2003. 15. Denied. In a letter dated September 30, 2003 the Plaintiff specifically advised the Defendant that he was in possession of the premises without authority or permission of the Plaintiff and that he must vacate the premises immediately. (See Exhibit C) The Defendant has absolutely no right of title to the subject property as the property was sold to the Attorney on the Writ on March 5, 2003. 16. Denied. In a letter dated September 30, 2003 the Plaintiff specifically advised the Defendant that he was in possession of the premises without authority or permission of the Plaintiff and that he must vacate the premises immediately. (See Exhibit C) The Defendant has absolutely no right of title to the subject property as the property was sold to the Attorney on the Writ on March 5, 2003. 17-19. Denied. The averments contained in paragraphs seventeen (17) through nineteen (19) are denied as conclusions of law to which no response is necessary. 20. Denied. The averments contained in paragraph twenty (20) are denied as conclusions of law to which no response is necessary. By way of further response, to the contrary, the Defendant John Barton continues to reside at the premises without authority, rent-free at the Plaintiff's expense and should be ordered to vacate the premises immediately. WHEREFORE, Plaintiff respectfully requests that the Court enter judgment in its favor and against Defendant as requested in Plaintiffs Complaint. Respectfully submitted, FEDERMAN AND PHELAN, LLP Date: March ~., 2004 Noelle A. Connor, Esquire Attorney for Plaintiff EXHIBIT A USBC PAM - LiVE - V2.3 - Docket Report Page 1 of 4 CREDS, 341Held, PinCnfrmd, DISMISSED U.S. Bankruptcy Court Middle District of Pennsylvania (Harrisburg) Bankruptcy Petition #: I:03-bk-01417-MDF Assigned to: Mary D France Chapter 13 Voluntary Asset John E Barton 55 GUTSHALL ROAD SHI~PENSBURG, PA 17257 SSN: xxx-xx-1445 Debtor Date Filed: 03/12/2003 Date Terminated: 01/14/2004 Date Dismissed: 01/14/2004 represented by Shawn B. Cohen Cohen & Axinn 1904 N. JUNIATA STREET HOLLIDAYSBURG, PA 16648 814 695-5518 Charles J. Dehart, III P.O. BOX 410 HUMMELSTOWN, PA 17036 717 566-6097 Trustee United States Trustee PO Box 969 Harrisburg, PA 17108 717-221-4515 Asst. U.S. Trustee Filing Date # Docket Text 03/12/2003 _1 VOLUNTARY PETITION under chapter 13, [AG], ORIGINAL NIBS DOCKET ENTRY #1 (Entered: 03/12/2003) 03/12/2003 2 NOTICE of intent to dismiss case unless missing documents are filed: due by 03/27/03 Re: Item # 1 [Complied], [AG], ORIGINAL NIBS DOCKET ENTRY #2 (Entered: 03/12/2003) 03/27/2003 3_ Schedules, Statements, Plan & Summary and all missing documents Re: Item # 2, [AG], ORIGINAL NIBS DOCKET ENTRY #3 (Entered: 03/28/2003) https://ecf, pamb.uscourts.gov/cgi-bin/DktRpt.pl?210914627508529-L 82 0-1 2/26/2004 USBC PAM - LIVE - V2.3 - Docket Report Page 2 of 4 03/27/2003 4 Ch. 13 Plan Re: Item # 3, [AG], ORIGINAL NIBS DOCKET ENTRY #4 (Entered: 03/28/2003) 04/11/2003 5 CERTIFICATE of Mailing of Notice of 341 Meeting. Objections to the plan are due 15 days after meeting held., [AUT], ORIGINAL NIBS DOCKET ENTRY #5 (Entered: 04/11/2003) 05/02/2003 6 MOTION for relief from stay GE CAPITAL MORTGAGE SERVICES, INC. FEE PD. $75.00 594907-DP, [JC], ORIGINAL NIBS DOCKET ENTRY #6 (Entered: 05/02/2003) 05/05/2003 7 Order (RE: related document(s)[6] ). Answers are due on: 5/25/2003. Hearing scheduled for 5/28/2003 at 09:00 AM at 3rd & Walnut Streets, Bankruptcy Courtroom (3rd Floor), Federal Building, Harrisburg, PA. (Cherrybon, Jackie) (Entered: 05/05/2003) 05/12/2003 8 Certificate of Service (RE: related document(s)[7] ). (Cherrybon, Jackie) (Entered: 05/12/2003) 05/16/2003 9 Certification that 341 Meeting of Creditors Not Held to be rescheduled. Filed by Charles J. Dehart 11I. (Anthony, Carol) (Entered: 05/20/2003) 05/20/2003 10 Certification that 341 Meeting of Creditors Rescheduled. Filed by Charles J. Dehart III. 341(a) meeting to be held on 6/19/2003 at 09:00 AM at Federal Bldg, Trustee Heating Rm, Rm 1160, I lth Fl, 228 Walnut St, Harrisburg, PA. (Anthony, Carol) (Entered: 05/20/2003) 05/21/2003 11 Answer Filed by Shawn B. Cohen of Cohen & Axinn on behalf of John E Barton (RE: related document(s)[6] ). (Rudy, Christina) (Entered: 05/21/2003) 05/22/2003 1~2 BNC Certificate of Mailing. Service Date 05/22/2003. (Related Doc # 10) (Admin.) (Entered: 05/23/2003) 05/28/2003 13 Proceeding Memo - Hearing held and continued, at the request of Movant, on Motion of GE Capital Mortgage for relief from Stay and Answer thereto (RE: related document(s)[7], [11], [6] ). Heating scheduled for 6/26/2003 at 09:00 AM at 3rd & Walnut Streets, Bankruptcy Courtroom (3rd Floor), Federal Building, Harrisburg, PA. (No notice required) (Weigel, Erma) (Entered: 05/28/2003) https://ecf, pamb.uscourts.gov/c~-bin/DktRpt.pl?210914627508529-L 82 0-1 2/26/2004 USBC PAM - LIVE - V2.3 - Docket Report Page 3 of 4 06/20/2003 14 Certification of Trustee that 341 Meeting of Creditors Held Filed by Charles J DeHart, Iit. Last day to Object to Plan Confirmation 7/5/2003. (Anthony, Carol) (Entered: 06/20/2003) 06/26/2003 15 Proceeding Memo: Heating held on Motion of G E Capital for relief from Stay and Answer thereto. Taken under advisement. (RE: related document(s)[11], [6], [13] ). Briefs and supplemental documents due by 7/28/2003. (Weigel, Erma) (Entered: 06/27/2003) 07/28/2003 16 Brief in Support of Denial of Relief from Stay Filed by Shawn B. Cohen of Cohen & Axinn on behalf of John E Barton (RE: related document(s)[ 15], [6] ). (JC) (Entered: 07/29/2003) 07/29/2003 17 Brief In Support Filed by Peter J Mulcahy on behalf of GE Capital Mortgage Services Inc (RE: related document(s)[6] ). (JC) (Entered: 07/30/2003) 09/03/2003 18 Order Granting Motion for Relief from Stay (RE: related document(s)[11], [6], [7], [13] ). (JC) Additional attachment(s) added on 9/29/2003 (TH). (Entered: 09/03/2003) 10/10/2003 19 Order Confirming Chapter 13 Plan (RE: related document(s)_4, [14] ). (JR) (Entered: 10/10/2003) 12/10/2003 20 Motion to Dismiss Case for material default and heating notice to parties. Filed by Charles J DeHart, m(RE:related docmnent(s)~, ~ ). Hearing scheduled for 1/8/2004 at 02:00 PM at 3rd & Walnut Streets, Bankruptcy Courtroom (3rd Floor), Federal Building, Hmrisburg, PA. (CA) (Entered: 12/10/2003) 01/14/2004 21 Correspondence from Trustee re heating. No appearance for debtor. Case to be dismissed Filed by Charles J. Dehart 1II (RE: related document(s)[20] ). (CA) (Entered: 01/14/2004) 01/14/2004 22 Order Dismissing Case (RE: related document(s)[21] ). (CA) (Entered: 01/14/2004) 01/16/2004 23 BNC Certificate of Mailing. Service Date 01/16/2004. (Related Doc # 22) (Admin.) (Entered: 01/17/2004) 01/21/2004 24 Report of Trustee in Dismissed Case Filed by Charles J. Dehart 1]I. (CA) (Entered: 01/21/2004) https://ecf, pamb.uscourts.gov/c~-bin/DktRpt.pl?210914627508529-L 82 0-1 2/26/2004 USBC PAM - LIVE - V2.3 - Docket Report Page 4 of 4 PACER Service Center Transaction Receipt 02/26/2004 09:59:08 PACER Login: IlfpOO39 IlClient Coae: Ilbarton Description: IIDockct Report ItCase Number: 1tl:03-bk-01417-MDF Billable Pages: [I2 Ilcost: 110.24 https://ecf, pamb.uscourts.gov/cgi-bin/DktRpt.pl?210914627508529-L 82 0-1 2/26/2004 EXHIBIT B AO72& · IN ~ UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOHN E. BARTON a/Wa JOHN BARTON, Debtor GE CAPITAL MORTGAGE SERVICES, INC., Movant ¥. .IOHN E. BARTON a/Wa JOHN BARTON, Respondent Chapter 13 : Case No. 1-03-01417 PA SEP - 3 2003 u.s. On October 14, 2002, Movant filed a foreclosure action against Debtor in state court aRer Debtor had defaulted on a mortgage executed in 1997. In November 2002, Movant requested and received a default judgment for Debtor's failure to answer the foreclosure complaint. A writ of execution was duly issued under state rules, and a sheriff's sale was set for March $, 2003. Lacking an objection by Debtor, the sale took place as scheduled. Movaut bought in the property at thc fall of the sheriff's hammer. On March 12, 2003, Debtor filed the instant bankruptcy petition. As of that date, Movant had not yet recorded its sheriff's deed to the mortgaged premises. Movant therefore requested relief from the stay to allow it to proceed to record the deed and evict Debtor. Alleging that he had not received proper notice of the sheriff's sale under state rules, Debtor objected to the relief requested. A heating was held and briefs have been filed. The matter is ready for decisio~~ Debtor is currently unemployed and receives disability payments in the amount Of $804.00 per month. His schedules state that his mortgage payments are $966.00 per month and that his total monthly expenses exceed his monthly income by some $85?.00. He does not deny that I,.is mortga~;e payments are seriously in arrears. His defense to the instant motion is that he did not receive proper notice of the sheriff's sale. Under Pennsylvania law, at the fall of the hammer, a purchaser of real property at a sheriffs sale acquires a vested equitable interest in the property which becomes ~t complete title on complying with the terms of the sale. Pennsylvania Company etc. v. BroaclStreetHospital, 354 Pa. 123, 47 A.2d 281, 284-85 (1946); In Re Rouse, 48 B.R. 236, 240 (Bankr. E.D.Pa. 1985). When a purchaser acquires an equitable interest in real property at a sheriffs sale, legal title remains with a debtor until the deed is recorded, ff the debtor files a hanktuptcy petition before the deed is recorded, cause exists pursuant to § 362(6) oftha Bankruptcy Code to liR the automatic stay to permit the purchaser to obtain legal title. In re Pulcini, 261 B.R. 836, 842 (Bankr. W.D.Pa.2001); In re Donovan, 183 B.R. 700, 702 (Bankr. W.D.Pa. 1995);Inre Golden, 190 B.R. 52, 58 (Bankr. W.D.Pa~ 1995). Accordingly, if the sheriff's sale in the instant case was valid, then relief from the stay should be granted to Movant, as Debtor has no interest cogniTable in bankruptcy. Debtor's only argument for invalidation of the sale is that he did not receive notice of the I have jurisdietion pursuant to 28 U.S.C. §§157 and 1334. This matter is core pursuant to 2S U.S.C. §lST(b)(2)(O). 2 AO72A · shedff's sale. This Court is empowered to invalidate a sheriff's sale for lack of notice to a debtor. Taylor v. Slick 178 F.3d 691t, 703 (3~ Cir. 1999)(bankruptcy court could entertain challenge to adequa~ of procedural due process in sheriff's sale). See also, In re ~u/ers, 75 B.R. 427, 432 (Bankr. E.D.Pa. 1987), rev'don other grounds, FItG, Inc. v. Manley, 919 F.2d $$0 (3'~ Cir. 1990). In state court, the burden of proof rests on the party seeking to set aside a sheriff's sale to show by clear and convincing evidence that the ~ircomstances warrant relle~. M& TMortg. Corp. v. Keesler, 826 A.2d 877, 879 (Ps. Sul~r.2003). Thus, Debtor must prove by dear and convincing evidence that his due process fights under state procedural roles were disregarded in the instant sale. Those roles provide as follows:. PS`R. Civ. P. 3129.1. Sale of Reni Property. Notice. Affidavit (a) No sale of real properW upon a writ of execution shall be held until the plaintiff'has filed with the sheriffthe affidavit required by subdivision (b) and the notice required by Rule 3129.2 has been served. (b) The affidavit shall set forth to th~ beat of the afliant's knowledge or information and belief as of the date the praecipe for the writ of execution was filed the name and address or whereabouts of (I) the owner or reputed owner of the real property and of the defendant in the judgment; ... If the name and address or whereabouts of the persons in subparasraph (1) through (4) cannot be reasonably ~ed, the affidavit shall so state. Pa.R. Civ. P. 3129.2. Notice of Sale. Handbills. Written Notice. Publication (a) Notice of the sale ofrenl property shall be given by handbills as provided by subdivision (b), by written notice as provided by subdivision (c) to all persons whose names and addresses are set forth in the affidavit required by Rule 3129.1, and by publication as provided by subdivision (d). 00) The handbills shall be posted by the sheriffin the sheriffs office and upon the property at least thirty days before the sale ..... (c) The written notice shall be prepared by the plaintiff; shall comain the same information as the handbills or may consist of the handbill and shall be served 3 AO72A · at least thirty days before the sale on all persons whose names and addresses are set forth in the affidavit required by Rule 3129.1. (1) Service ofthe notice shall be made (1) upon a defendant in the judgment who has not entered an appearance and upon the owner of the property (A) by the sheriff or by a competent adult in the manner prescribed by Rule 402(a) for the service of original process upon a defendant, or (B) by the plaintiff mailing a copy in the manner prescribed by Rule 403 to the addresses set forth in the affidavit; or (d) Notice containing the information required by subdivision (b) shall also be given by publication by the sheriff once a week for three successive weeks in a newspaper of general circulation in the county and in the legal publication, if any, designated by nde of court for publication of notices, the first publication to be made not less than twenty-one days before the date of sale. Pa.R. Civ.P. 403 Service by mail. If a nde of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant or his authorized agent. Service is complete upon delivco] of the mail. In addition to these mles, a state statute requires a residential mortgage lender to comply with certain special notice requirements, which are as follows: (a) Before any residential mortgage lender may .., take possession of any s~curi~y of the residential mortgage debtor for such residential mortgage obligation, such person shall give the residential mortgage debtor notice of such intention at least thirty days in advance as provided in this section. (b) Notice of intention to take action as spe~ifiad in subsection (it) of this section shall be in writing, sent to the residential mortgage debtor by registered or certified mail at his last known address and, if different, at the residence which is the subject of the residential mortgage. (c) The written notice shall clearly and conspicuously state: (1) The particular obligation or real estate security interest; (:2) The nature of the default claimed; (3) The right of the debtor to cure the default as provided in section 404 of this act and exactly what performance including what sum of money, if any, must be tendered to cure the default; 4 (4) The time within which the debtor must cure the default; (5) The method or methods by which the debtor's ownerabip or possession of the real estate may be terminated; and (6) The fight of the dabtor, if any, to transfer the real estate to another peraon subject, to the security interest or to refinance the obligation and of the transferee's right, if any, to cure the default. (d) The notice ofintentinn to forecios~ provided in this section shall not be required where the residential mortgage debtor, has abandoned or voluntarily surrendered the propeax'y which is the subject of a residential mortgage. 41 P.S. ~403 ("Act 6"). The notice~ required by the Pennsylvania Rules of Civil Procedure and by Act 6 were admitted into the record. They show that notice~ of the abe. tiff's sale were duly placed into the mail, published in a newspaper ofgenerai circulation, and posted on the premisns to be sold. Debtor has no evideoce to show that these notices were not served. Under P~.R.C.P. 403, Movant's return receipt, signed by Debtor, is sufficient proof of service, which is not rebutted by Debtor's self-serving denials that he received such notice. Similarly, his stat~nent that no handbills were placed on the premises flies in the face of the sheriff's affidavit that handbills were placed. Debtor's denials do not constitute clear and convincing evidence; therefore, Debtor's case must fail. In addition, all practical considerations indicate that allowing tho stay to remain in place not only would be an exercise in futility, but also a disservice to Debtor. A~ I noted at the outset, Debtor's monthiy bills far exceed his current income, and his prospects for increasing his income are limitad. His mortgage payment alone exceeds his cawrent income. Yet his plan indicates that he will cure approximately $16,422.00 in pre-petition arrears through payments of up to $819.12 per month. All information of record indicates ~07~A · tket Debtor does not h~ve the funds for such a plan, cannot afford this houso, and will be relieved ora great financial burden if ho relocates. For these reasons, the Motion for relief~ stay shall be and hereby is GRANTED. BY THE COURT HARRISBURG, PENNSYLVANIA DATED: September 3, 2003 6 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOHN E. BARTON NK/A JOHN BARTON CASE NO: 1-03-01417 DEBTOR(S) CHAPTER 13 CERTIFICATE OF SERVICE The undersigned deputy clerk hereby certifies that a copy of this document was mailed today to the parties named below at their respective addresses as shown below. JUDITH ROMANO, ESQ. PETER J. MULCAHY, ESQ. FEDERMAN & PHELAN LLP ONE PENN CENTER AT SUBURBAN STATION 1617 BLVD., STE. 1400 PHILADELPHIA, PA 19103-9897 SHAWN B. COHEN, ESQ. COHEN & AXINN 1904 N. JUNIATA STREET HOLLLIDAYSBURG, PA 16648 CHARLES J DEHART III ESQUIRE PO BOX 410 HUMMELSTOWN PA 17036 Dated: September 3, 2003 ckie C ;e.yb n - Deputy Clerk EXHIBIT C Federman and Phelan, LLP One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 Fax # (215) 563-5534 September 30, 2003 John Barton Or Occupants 55 Gutshall Road Shippensburg, PA 17257 RE: 55 Gutshall Road Shippensburg, PA 17257 Dear Occupant: We represent GE Capital Mortgage Services, Inc. wb2ch became equitable owner of the above premises as a result of foreclosure and judicial sale by the Sheriff of the County of Cumberland on March 5, 2003. You are now in possession of the premises without Authority or permission of our client and you must vacate immediately. Unless you immediately vacate the premises and make them available for possession, court action will be taken against you at once. Very tru]y yours, FEDERMAN AND PI-IELAN Francis S. Hallinan, Esquire VERIFICATION Noelle A. Connor, Esquire, hereby states that she is the attomey for the Plaintiffin this action, that she is authorized to make this verification, and that the statements made in the foregoing Reply to New Matter are tree and correct to the best of her knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsifications to authorities. FEDERMAN AND PHELAN, LLP Date: March'[ 2004 Noelle A. Connor, Esquire Attorney for Plaintiff One Penn Center at Suburban Station Suite 1400 1617 J.F.K. Blvd. Philadelphia, PA 19103-1814 (215) 563-7000 FEDERMAN AND PHELAN, L.L.P. BY: Noelle A. Connor, Esquire INDENTWICATION NO.: 83130 One Penn Center at Suburban Station Suite 1400 1617 J.F.K. Blvd. Philadelphia, PA 19103-1814 (215) 563-7000 GE Capital Mortgage Services, Inc. Plaintiff, John Barton or Occupants VS. Defendant. Attorney for Plaintiff COURT OF COMMON PLEAS Cumberland County CiVIL DiVISION No. 03-1243-Civil Term CERTIFICATION OF SERVICE I certify that a true and correct copy of Plaintiff's Reply to Defendant's New Matter was sent via first class mail to the person listed below on the date indicated: Brace J. Warshawsky, Esquire Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 Date: March'/., 2004 Noelle A. Connor, Esquire Attorney for Plaintiff FEDERMAN AND PHELAN, LLP By: SHEETAL R. SHAH-JANI, ESQUIRE Identification No. 81760 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (21~) ~a~-7000 GE Capital Mortgage Services, Inc. 5024 Parkway Plaza Boulevard, Building 7/F/C Charlotte, NC 28217 VS. John Barton Or Occupants 55 Gutshall Road Shippensburg, PA 17257 Attorney for Plaintiff Court of Common Pleas Civil Division Cumberland County No. 03-5194 Civil Term MC~TION FOR ~ql}'MMAR¥ .HTI}GMF, NT Plaintiff, GE Capital Mortgage Services, Inc. (hereinafter "Plaintiff'), by its attomey, Sheetal R. Shah-Jani, Esquire, respectfully requests that this Honorable Court enter an Order granting summary judgment in the above-captioned matter as follows: 1. As the successful bidder at a Sheriffs Sale, Plaintiffbecame the owner of the premises located at 55 Gutshall Road, Shippensburg, PA 17257, by a Deed fi.om the Sheriff of Cumberland County. A true and correct copy of the Deed is attached hereto, made part hereof, and marked as Exhibit A. 2. Plaintiff notified the occupants to vacate the premises but, to date, they have remained in the property without any right or title. A true and correct copy of Plaintifl's notice to vacate is attached hereto, made part hereof, and marked as Exhibit B. 3. Because the occupants have refused to vacate the property on their own, Plaintiff filed an ejectment action on October 1, 2003. A true and correct copy of the Complaint is attached hereto, made part hereof, and marked as Exhibit C. 4. An Answer and New Matter to the Complaint has been filed in which no defense has been raised. A true and correct copy of the Answer and New Matter and Plaintiff's Reply to New Matter are attached hereto, made part hereof, and marked as Exhibits D and E, respectively. 5. As is addressed in Plaintiff's Reply to New Matter, Defendant has been occupying the property without claim of fight or title since at least March 5, 2003, the date of the sale. 6. Even if the Court were to believe that the Defendant is "a tenant at will," the Defendant has been in possession of the property without paying rent to the Plaintiff. On this basis alone, Plaintiffis entitled to evict the Defendant, although Plaintiffdoes not admit to Defendant's allegation that he is a "tenant at will". 7. An eviction action is an improper forum in which to raise issue with a sheriffs sale, as is further addressed in Plaintiffs attached brief. 8. Since the Sheriffs deed to Plaintiffhas already been recorded, it is too late to set aside the Sheriffs sale, as is further addressed in Plaintiffs attached brief. 9. Plaintiffrespectfully submits that it has established its fight to immediate, exclusive possession of the premises, and there are no material issues of fact in this case for a fact-finder. WHEREFORE, Plaintiff respectfully requests that judgment for possession be entered as prayed for in the Complaint. Respectfully submitted, Sheetal 1~. St~ah-Janij ~s~re Attorney for Plaintiff k~/ EXHIBIT A Tax Parcel No. 39'13-0106-040 KnOw ali Men by these Presents vi' D~E~S COUNTY- 03 OCT 27 RP) 8 36 That I, R. Thomas Kline, Sheriffof the County of Cumberland, In the State of Pennsylvania, for and in consideration of the sum of $100,000.00, (One Hundred Thonsand Dollars), to me in hand paid, do hereby grant and convey to GE Capital Mortl~a~e Services~ InC. REAL ESTATE SALE No. 22 Writ No. 2002-4975 Civil Term GE Capital Mortgage Services, Inc. VS John E. Barton Atty.- Frank Federman DESCRIPTION ALL the following described real estate lying and being situate in Southampton Township, Cumher- land County, Pennsylvania. bounded and limited a~ follows: BEGINNI~IG at a post in 'the Furnace Road; thence North 63 degrees West 11.3 perches to a post; thence by lands now or formerly of Piper, South 45 degtee$ West 23 perches to a post; thence by lands now or foflnerly of Christ Helm, formerly part of this tract, South 35 degrees East 15.2 perches to a sprout; thence by the same, South 43 l~mgrees East $.4 perches to a pop ar tree; thence by Furnace lands, North 27 degrees East 31 perches to the place of beginning, containing 2 acres, 100 perches, more or 1e$$. BEING 55 Gutshall Road, Ship- ~ pensherg, PA 17257. TAX PARCEL #39.13.0106_' 040. TITLE TO SAID PREMISES VESTED IN John E. I~arton by deed from Kenneth E. Crouse and Marcia A. Crouse, his wife, dated 9/29/1986 and recorded 10/1/1986 . in Deed I~ook E, Volume 32, Page 143. 260 L82 The same having been sold by me to the said grantee on the ~day of March Ann~ Domini Two Thousand and Three (2003) aRer due advertisement according to law, under and by Virtue ora Writ of Execution issued on the 26,th.day of November Anno Domini 2002out of the Court of Common Pleas of Cumberland County, Pennsylvania, as of Civil Term, Two Thousand and Two (2002) Number 4975 at the suit of GE Capital Morteaee Services~ Inc. against John E. Barton. Anno Domiin Two Thousand and Three (2003) In Witness Whereof, I have hereunto affixed my signature this23rrl day o~ RZThomas Kline, Sheri~ff~ Commonwealth of Pennsylvania, ss. County of Cumberland Before the undersigned, CU~ R. Long, Prothonotary of the Court ofc0mmon ~ ~ Pleas of Cumberland County, Pennsylvania, personally appeared 1L Thomas Kline, Sheriffof Cumberland County aforesaid, and in due form of law declared that the facts Set forth in the foregoing Deed are true, and that he acknowledged the same in order that Said deed might be recorded. Witness my hand and seal of said Court, this23rd day of°ccc- Anno Domini Two Thousand and Three (2003) Pr0~on6U~ Ic~ cu~,~, ;~o cou~rt cou~ ~s~ ~d Post ()ffice ~s of~e Wi~n ~mtce is 5024 Parkway Pl~a Blvd. Bu~d~ 7/$/C r ~- ',~ ' ' ' recorded .... . ..... i~'3 ~" ~' ~ [n C,...u~. l_,ha County PA 280 ~ ,1~ Reaerder of Deeds EXHIBIT B Federman and Phelan, LLP One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard. Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 Fax # (215) 563-5534 September 30, 2003 John Barton Or Occupants 55 Gutshall Road Shippensburg, PA 17257 RE: 55 Gutshall Road Shippensburg, PA 17257 Dear Occupant: We represent GE Capital Mortgage Services, Inc. which became equitable owner of the above premises as a result of foreclosure and judicial sale by the Sheriff of the County of Cumberland on March 5, 2003. You are now in possession of the premises without Authority or permission of our chent and you must vacate immediately. : Unless you immediately vacate the premises and make them available for possession, court action will be taken against you at once. Very truly yours, FEDERMAN AND PHELAN Francis S. Hallinan, Esquire EXHIBIT C Federman and Phelan, LLP By: Francis S. Hallinan, Esqmre Identification No. 62695 One Penn Center Plaza Suite 1400 Philadelphia~ PA 19103 (215) 563-70OO GE Capital Mortgage Services, Inc. 5024 Parkway Plaza Boulevard, Building 7fF/C Charlotte, NC 28217 Attorney for Plaintiff : Court of Common P~ : Cumberland County John Barton Or Occupants 55 Gutehall Road Shippensburg, PA 17257 '*This finn is a debt ~ollector attempting to collect a debt and any information obtained will be used for ~hat pm]x~se. If you have previously received a discharge in bankruptcy and fl,Js debt was not remTumed, lhLs correspondence /s not and should not be con.stained to be an attempt to collect a debt. but only enforcement of a lien against property,- NOTICE You have been sued in court. If you wish to defend againsl~ the claims set forth in the following pages, you must take action within (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 and 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 or csnnot afford one, go to or telephone the office set forth below to find out where you can get legal help. 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 ~ eligible persons at a reduced fee or no fee. ,Ne hereby certify the' within to be a true and correct copy of the original filed of record rEDERMAN AND PHELA/" CUMBERLAND COUNTY CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE. PA 17013 (717) 249-3166 Plaintiff is GE Capital Mortgage Services [nc. 2. Defendant is John Barton Or Occupant& Plaintiff is equitable owner of premises located at 55 Gutshall Road, Shippensburg, PA 17257, a legal description of which is attached. .Plaintiff became owner of said premises as a result of fbreclosure and judicial sale by the Sheriff~f Cumberland County, on March 5, 2063. o Plamtif5 by virtue of the above, is the equitable owner of said premises, and is entitled to possession thereo£ The defendant is occupying the said premises without right and so far as the plaintiffis informed, without claim of title. Plaintiff has demanded possession of the said premises ~rom the said defendant who has refused to deliver up possession of same. WHEREFORE. plaintiff seeks to recover possession of said premises. Francis S. Hajlinan, Esquire Attorney for Plaintiff ~GINNIN~ ~ ~ po~=. in ~he F~rnac~ Road; BEING 55 GUTSHALL ROAD, SHIPPENSBURG, PA 17257 TAX PARCEL # 39-13-0106-040 TITLE TO SAID PREMISES IS VESTED IN IOFIN E. BARTON BY DEED FROM KENNETH E. CROUSE AND MARCIA A. CROUSE, HIS WIFE DATED 9/29/1986 AND RECORDED 10/1/1986 IN' DEED BOOK F, VOLUME 32 PAGE 143. Francis S. H~]linan hereby states that he is the attorney for the Plaintiff in this eviction action and is authoriZed to make this verification. The statements made in the foregoing Civi~ Action - Ejectment are correct to the best of my kno~vledge, information, and behef. I was the attorney for the Plaintiff or Plaintiffs predecessor in interest in the underlying foreclosure action. I am with the law firm on the writ of execution, and my law firm or an agent of my firm purchased.the property on behalf of the Plaintiff by bidding on the property at the sheri~s sale. I am msl~ing this verification rather than a representative of the Plaintiff because I have personal knowledge of the purchase of this property at sheri~s sale. The undersigned understands that this statement is m:ade subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date Attorney for ]?laintiff EXHIBIT D GE CAPITAL MORTGAGE SERVICES, INC., Plaintiff JOHN BARTON OR OCCUPANTS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-1243 CIVIL TERM TO: NOTICE TO PLEAD GE Capital Mortgage Services, Inc. Frank Federman, Esquire Federman and Phelan, LLP One Penn Center Plaza Suite 1400 Philadelphia, PA 19103 You are hereby notified to file a written response to the enclosed Answer with New Matter within twenty (20) days fi.om service hereof or a judgment may be entered against you. Dated: o~ 1~-/0~ METZGE]g~W~3.I~RS~, KNAUSS & E~ ~"~V Bru~ce ~ V~arshawsky/r~3~re Attorney I.D. No. 58~9' 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-03(}0 (717) 238-8187 Attorney for Defendant John Barton 297835-1 GE CAPITAL MORTGAGE SERVICES, INC., Plaintiff JOHN BARTON OR OCCUPANTS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-1243 CIVIL TERM ANSWER WITH NEW MATTER And now comes the Defendant, John Barton, by and through his attorneys, Bruce J. Warshawsky, Esquire, and Metzger, Wickersham, Knauss & Erb, P.C. to answer the Complaint filed in the above-captioned action, and raise new matter thereto as follows: ANSWER 1. Admitted upon information and belief. By way of further response, however? it is believed that Wells Fargo is a successor in interest to Plaintiff!, as the Defendant, John Barton, had been paying his mortgage to Wells Fargo. 2. Admitted in part and denied in part. It is admitted that the Defendant is John Barton. John Barton knows of no other occupant. 3. Admitted upon information and belief. 4. Admitted upon information and belief. 5. The averments of this paragraph are legal com:lusions to which no response is required. To the extent that a response is deemed to be required, it is specifically denied that the Defendant, John Baron, was occupying said premises without right, as is more specifically set forth in the New Matter below. 297835-1 6. Denied as stated. Since Pla'mtiff became owner of the premises, the Defendant, John Barton, on numerous occasions, has attempted to contact Plaintiffregarding his occupancy of said premises, but at no time has Plaintiff ever demanded possession of the premises from the Defendant, John Barton, nor has John Barton refused to deliver possession of the premises to the Plaintiff. WHEREFORE, Defendant respectfully requests that tiffs Honorable Court dismiss the Complaint and award him costs, attorneys' fees and 0ther just relief. NEW MATTER 7. Defendant hereby incorporates by reference his answers to Paragraphs 1 through 6 as if more specifically set forth herein. 8. Since March 5, 2003, Defendant, John Barton, has been occupying the premises with the knowledge and acquiescence of the Pla'mtiff. 9. On numerous occasions, Defendant, John Barton, attempted to contact Pla'mtiff and Plaintiff's counsel regarding his continued occupancy of said premises, to which the Defendant, John Barton, received no response or a response that they would not speak with him. 10. The Defendant, John Barton, has never received a notice to quit or other notification that the Plaintiff wishes for him to be removed from the premises, other than this Complaint in Ejectment. 297835-1 11. The Defendant, John Barton, has tendered monies to the Plaintiff in connection with his continued occupancy of the said premises. 12. The Defendant, John Barton, has maintained insurance coverage on the premises, with Wells Fargo as an additional insured, since March 5, 2003 up through the present. 13. Plaintiff is enjoying the benefit of Defendant's continued occupancy of the premises, in that the premises are not vacant and are being insured by the Defendant, John Barton. 14. Plaintiff's occupation of the premises is a tenancy at will, because the Plaintiff is aware of Defendant's continued occupancy and has acquiesced in his continued occupancy. 15. As a tenant at will, the Defendant, John Barton, is entitled to written notification of the Plaintiff's request that he remove fi.om the premises. 16. Alternatively, the Defendant, John Barton, is a tenant at sufferance with a continued right of possession. 17. Plaintiff's Complaint is barred by the applicable statute of limitations. 18. Plaintiff's Complaint is barred by the doctrine of estoppel. 19. Plaintiff's claim is barred by the doctrine of latches. 20. The Plaintiff would be unjustly enxiched if the Defendant, John Barton, were ordered to be removed from the premises. WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss the Complaint and award him costs, attorneys' fees and other just relief. 297835-1 METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Attorney I.D. No. 58799 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for Defendant John Barton 297835-1 VERIFICATION I, John Barton, verify that the statements made in the foregoing Answer with New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements are made subject to the penalties of 18 Pa.C.S.§ 4904 relating to unswom falsification to authorities. ~ol~Barton CERTIFICATE OF SERVICIZl I, Bruce J. Warshawsky, Esquire, do hereby certify that on the date set forth below, I did serve a true and correct copy of the foregoing Am~wer with New Matter and upon the following person(s) at the following address(es) indicated below by sending same in the United States Mail, first-class, postage prepaid: Frank Federman, Esquire Federman and Phelan, LLP One Perm Center at Suburban Station 1617 JFK Boulevard Philadelphia, PA 19103-1814 METZGER, WICKERSI-DkM, KNAUSS & ERB, P.C. BY: Bmc~ j. W~sha~w~, Esq~e 297835-1 EXHIBIT E FEDERMAN AND PHELAN, L.L.P. One Penn Center At Suburban Station 1617 J.F.K. Boulevard, Suite 1400 Philadelphia, PA 19103-1814 P: 215-563-7000 F: 215-563 4n. 91 Email: noelle, connor~fedphe, com Noelle A~ Connor, Esquire Litigation Department March ~, 2004 Representing Lenders in Pennsylvania and New Jersey* VIA FEDERAL EXPRESS Office of the Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013-3387 Re~ GE Capital Mortgage Services, Inc. v. John Barton or Occupants CCP, Cumberland, No. 03-5194-Civil Term Dear Sir or Madam: Enclosed please fmd Plaintiff's Reply to Defendant's New Matter to P]taintifI's Complaint and Certification of Service for filing with the court. Please return a time-stamped copy of the first page of the Reply and Certification in the enclosed, self-addressed envelope. Your cooperation in this matter is appreciated. Very truly yours, Noelle A. Connor, Esquire NXC/bzc encl. cc: Brace J. Warshawsky, Esquire (via regular mail, w/encl.) GE Capital Mortgage, Services, Inc. (San Bemardino, CA), Attn: Linda Schwinn, Eviction Specialist, Account No.: 21682596 (via e-mail only; w/encl.) * Please be advised that this fm is a debt collector attempting to collect a debt. Any information received will be used for that purpose. If you have previously received a discharge in bankruptcy and this debt was not reaffu'med, this correspondence is not and should not be construed to be an attempt to collect a debt, but only enforcement of lien against property. FEDERMAN AND PHELAN, L.L.P. BY: Noelle A. Connor, Esquire INDENTIFICATION NO.: 83130 One Penn Center at Suburban Station Suite 1400 1617 J.F.IC Blvd. Philadelphia, PA 19103-1814 (215) 563-7000 GE Capital Mortgage Services, Inc. Plaintiff, VS. John Barton or Occupants Defendant. Attorney for Plaintiff COURT OF COMMON PLEAS Cumberland County CIVIL DIVISION No. 03-5194-Cix41 Term PLAINTIFF'S REPLY TO DEFENDANT'S blEW MATTER 7. Plaintiffincotporates herein by reference the averments of paragraphs one (1) through six (6) of its Complaint as if set forth herein at length. 8. Denied. By way of further response, on March 5, 2003, the subject premises was sold to the Attorney on the Writ at Sheriff's Sale. On March 12, 2003, the Defendant filed for protection under Chapter 13 Bankruptcy. A true and correct copy of the Bankruptcy docket is attached hereto, made part hereof and marked as Exhibit A. On September 3, 2003, the Plainfiffwas granted relief from the Defendant's bankruptcy. A true and correct copy of the Relief Order is; attached hereto, made part hereof and marked as Exhibit B. On September 30, 2003, the Plainfiffsent the Defendant a letter indicating that the property had been sold at Sheriff's Sale on March 5, 2003, that the Defendant was in possession of the premises without authority or permission of the Plaintiff and indicating that the Defendant must vacate immediately. A hue and correct copy of the letter is attached hereto, made part hereof and marked as Exhibit C. 9. Denied. By way of further response, the Defendant has provided no documentation whatsoever to demonstrate that he made any attempts to contact the Plaintiff or Plaintiff's counsel regarding his continued occupancy of said premises, or otherwise. 10. Denied. In a letter dated September 30, 2003 the Plaintiff specifically advised the Defendant that he was in possession of the premises without authority or permission of the Plaintiff and that he must vacate the premises immediately. (See Exhibit C) 11. Denied. By way of further response, the Defendant has provided no documentation whatsoever to support this averment. As of March 5, 2003, when the property was sold at Sheriff's Sale, the Defendant John Barton no longer had any interest in the subject property and no tight whatsoever to continue occupancy of said premises. 12. Denied. By way of further response, the Defendant has provided no documentation whatsoever to support the averments made in paragraph twelve (12). 13. Denied. In a letter dated September 30, 2003 the Plaintiff specifically advised the Defendant that he was in possession of the premises without authority or permission of the Plaintiff and that he must vacate the premises immediately. (See Exhibit C) To the contrary, DetL~ndant John Barton continues to reside in the subject premises rent-free at the Plaintiff's expense. 14. Denied. In a letter dated September 30, 2003 the Plaintiff specifically advised the Defendant that he was in possession of the premises without authority or permission of the Plaintiff and that he must vacate the premises immediately. (See Exhibit C) The Defendant has absolutely no right of title to the subject property as the property was sold to the Attorney on the Writ on March 5, 2003. 15. Denied. In a letter dated September 30, 2003 the Plaintiff specifically advised the Defendant that he was in possession of the premises without authority or permission of the Plaintiffand that he must vacate the premises immediately. (See Exhibit C) The Defendant has absolutely no right of title to the subject property as the property was sold to the Attomey on the Writ ou March 5, 2003. 16. Denied. In a letter dated September 30, 2003 the Plaintiff specifically advised the Defendant that he was in possession of the premises without authority or permission of the Plaintiff and that he must vacate the premises immediately. (See Exhibit C) The Defendant has zbsolutely no right of title to the subject property as the property was sold to the Attomey on the Writ on March 5, 2003. 17-19. Denier[ The averments contained in paragraphs seventeen (17) through nineteen (19) are denied as conclusions of law to which no response is necessary. 20. Denied. The averments contained in paragraph twenty (20) are denied as conclusions of law to which no response is necessary. By way of further response, to the contrary, the Defendant John Barton continues to reside at the premises without authority, rent-free at the Plaintiff's expense and should be ordered to vacate the premises immediately. WHEREFORE, Plaintiff respectfully requests that the Court enter judgment in its favor and against Defendant as requested in Plaintiffs Complaint. Respectfully submitted, FEDERMAN AI~I) PHELAN, LLP Date: March ~, 2004 Noelle A. Connor, Esquire Attorney for Plaintiff EXHIBIT A ~ USBC PAM - LIVE - V2.3 - Docket Report Page 1 of 4 CREDS, 341lHeld, PinCnfrmd, DISMISSED U.S. Bankruptcy Court Middle District of Pennsylvania (Harrisburg) Bankruptcy Petition #: 1:03-bk-01417-MDF Assigned to: Mary D France Chapter 13 Voluntary Asset John E Barton 55 GUTSHALL ROAD SHIPPENSBURG, PA 17257 SSN: xxx-xx-1445 Debtor Date Filed: 03/12/2003 Date Terminated: 01/14/2004 Date Dismissed: 01/14/2004 represented by Shawn B. Cohen Cohen & Axinn 1904 N. JUNIATA STREET HOLLIDAYSBURG, PA 16648 814 695-5518 Charles J. Dehart, III P.O. BOX 410 HUMMELSTOWN, PA 17036 717 566-6097 Trustee United States Trustee PO Box 969 Harrisburg, PA 17108 717-221-4515 Asst. U.S. Trustee Filing Date # Docket Text 03/12/2003 _1 VOLUNTARY PETITION under chapter 13, [AG], ORIGINAL NIBS DOCKET ENTRY #1 (Entered: 03/12/2003) 03/12/2003 2 NOTICE of intent to dismiss case unless missing documents are filed: due by 03/27/03 Re: Item # 1 [Complied], [AG], ORIGINAL NIBS DOCKET ENTRY #2 (Entered: 03/12/2003) 03/27/2003 3_ Schedules, Statements, Plan & Smnmary and all missing documents Re: Item # 2, [AG], ORIGINAL NIBS DOCKET ENTRY #3 (Entered: 03/28/2003) https://ecf, pamb.uscourts.gov/cgi-bin/DktRpt.pl?210914627508529-L 82 0-1 2/26/2004 USBC PAM - LIVE, V2.3 - DOCket Report Page 2 ot 4 03/27/2003 _4 Ch. 13 Plan Re: Item # 3, [AG], ORIGINAL NIBS DOCKET ENTRY ~4 (Entered: 03/28/2003) 04/11/2003 5 CERTIFICATE of Mailing of Notice of 341 Meeting. Objections to the plan are due 15 days after meeting held., [ALIT], ORIGINAL NIBS DOCKET Elxff~RY #5 (Entered: 04/11/2003) 05/02/2003 6 MOTION for relief from stay GE ,CAPITAL MORTGAGE SERVICES, INC. FEE PD. $75.00 594907-DP, [JC], ORIGINAL NIBS DOCKET ENTRY ~6 (Entered: 05/02/2003) 05/05/2003 7 Order (RE: related document(s)[6] ). Answers are due on: 5/25/2003. Hearing scheduled for 5/28/2003 at 09:00 AM at 3rd & Walnut Streets, Bankruptcy Courtroom (3rd Floor), Federal Building, Harrisburg, PA. (Cherrybon, Jackie) (Entered: 05/05/2003) 05/12/2003 8 Certificate of Service (RE: related document(s)[7] ). (Cherrybon, Jackie) (Entered: 05/12/2003) 05/16/2003 9 Certification that 341 Meeting of Creditors Not Held to be rescheduled. Filed by Charles J. Dehart III. (Anthony, Carol) (Entered: 05/20/2003) 05/20/2003 1~0 Certification that 341 Meeting of Creditors Rescheduled. Filed by Charles J. Dehart llI. 341(a) meeting to be held on 6/19/2003 at 09:00 AM at Federal Bldg, Trustee Hearing Rm, Rm 1160, 1 lth Fl, 228 Walnut St, Harrisburg, PA. (Anthony, Carol) (Entered: 05/20/2003) 05/21/2003 11 Answer Filed by Shawn B. Cohen of Cohen & Axinn on behalf of John E Barton (RE: related document(s)[6] ). (Rudy, Christina) (Entered: 05/21/2003) 05/22/2003 12 BNC Certificate of Mailing. Service Date 05/22/2003. (Related Doc # 1~0) (Admin.) (Entered: 05/23/2003) 05/28/2003 13 Proceeding Memo - Heating held :md continued, at the request of Movant, on Motion of GE Capital Mortgage for relief from Stay and Answer thereto (RE: related document(s)[7], [ 11 ], [6] ). Hearing scheduled for 6/26/2003 al 09:00 AM at 3rd & Walnut Streets, Bankruptcy Courtroom (3rd Floor), Federal Building, Harrisburg, PA. (No notice required) (Weigel, Erma) (Entered: 05/28/2003) https://ecf, pamb.uscourts.gov/c~l-bin/DktRpt.pl?210914627508529-L 82 0-1 2/26/2004 USBC PAM - LIVE - V2.3 - Docket Report Page 3 of 4 06/20/2003 14 Certification of Trustee that 341 Meeting of Creditors Held Filed by Charles J DeHart, m. Last day' to Object to Plan Confmnation 7/5/2003. (Anthony, Carol) (Entered: 06/20/2003) 06/26/2003 15 Proceeding Memo: Hearing held on Motion ofG E Capital for relief from Stay and Answer thereto. Taken under advisement. (RE: related document(s)[ 11 ], [6],. [13] ). Briefs and supplemental documents due by 7/28/2003. (Weigel, Erma) (Entered: 06/27/2003) 07/28/2003 16 Brief in Support of Denial of Relief from Stay Filed by Shawn B. Cohen of Cohen & Axinn on beha.lfof John E Barton (RE: related document(s)[15], [6] ). (JC)(Entered: 07/29/2003) 07/29/2003 17 Brief In Support Filed by Peter J Mulcahy on behalf of GE Capital Mortgage Services Inc (RE: related document(s)[6] ). (JC) (Entered: 07/30/2003) 09/03/2003 1~8 Order Granting Motion for Relief fi~om Stay (RE: related document(s)[11], [6], [7], [13] ). (JC)Additional attachment(s) added on 9/29/2003 (TH). (Entered: 09/03/2003) 10/10/2003 19 Order Confirming Chapter 13 Plan (RE: related document(s)4~ [14] ). (JR) (Entered: 10/10/2003) 12/10/2003 20 Motion to Dismiss Case for mater/al default and hearing notice to parties. Filed by Charles J DeHart, 11I (RE: related document(s)l~ 1_ ). Heating scheduled for 1/8/2004 at 02:00 PM at 3rd & Walnut Streets, Bankruptcy Courtroom (3rd Floor), Federal Building, Harrisburg, PA. (CA) (Entered: 12/10/2003) 01/14/2004 21 Correspondence from Trustee re hearing. No appearance for debtor. Case to be dismissed Filed by Charles J. Dehart m(RE: related document(s)[20] )..(CA)(Entered: 01/14/2004) 01/14/2004 2~2 Order Dismissing Case (RE: related document(s)[21] ). (CA) (Entered: 01/14/2004) 01/16/2004 2~3 BNC Certificate of Mailing. Service Date 01/16/2004. (Related Doc # 2~) (Admin.) (Entered: 01/17/2004) 01/21/2004 24 Report of Trustee in Dismissed C:~5e Filed by Charles J. Dehart llI. (CA) (Entered: 0l/21/2004) https://ecf, pamb.uscourts.gov/cgi-bin/DktRpt.pl?210914627508529-L 82 0-1 2/26/2004 USBC PAM - LIVE - V2.3 - Docket Report Page 4 of 4 PACER Service Center Transaction Receipt 02/26/2004 09:59:08 , rnCZgLogin: ]lfp0039 IlCUent Code: Ilb~o- Description: HDocket R~. Ilc~ Number: II~ :03-bk-01417-MI)F I~mal~ie Pa~es: tl2 [ICost: II0.1a https://ecf, pamb.uscourts.gov/cgS-bin/DktRpt.pl?210914627508529-L 82 0-1 2/26/2004 EXHIBIT B IN THE UNITED STATES BANKRUFPCY COURT FOR ~ MIDDLE DISTRICT OF PEI~SYLVANIA Inre~ .IOBN E. BARTON a/Wa JOHN BARTON, Debtor GE CAPITAl, MORTGAGE SERVICES, INC., Movant V. JOHN E. BARTON a/Wa JOHN BARTON, Respondent Chapter 13 Case No. 1-03-01417 On October 14, 2002, Movant filed a foreclosure action against Debtor in state court after Debtor had defaulted on a mortL, nge executed in 1997. In November 2002, Movant requested and received a default judgraen~ for Debtor's failure to answer the foreclosure complaint. A writ of execution was duly issued under state roles, and a sheriff's sale was set for March 5, 2003. Lacidng an objection by Debtor, the sale took place u scheduled. Movant bought in the property at the fall of the sheriff's hammer. On March 12, 2003, Debtor filed the instant banlauptqy' petition. As of that date, Movant had not yet recorded its sheriff's deed to the mortgaged premises. Movant therefore requested relief from the stay to allow it to proceed to record the deed and evict Debtor. Alleging that he had not received proper notice of thc sheriff's sale under state rules, Debtor objected to the relief requested. A heating was held and briefs have been AO72A · instant motion is that he did not receive proper notice of the sl~fiff's sale. Under Pennsylvania hw, at the fall of the hamm~, a purchaser of real property at a sheriffs sale aequlres a vested equitable interest in the property which becomes a complete title on complying with the terms of the sale. Pennsy/van/a Company e~ v. Broad Street Hospital, 354 Pa. 123, 47 A.2d 281, 284-85 (19,~')/In Re Rouse, 48 B.P. 236, 240 (Bankr.E.D.Pa. 1985). When a purchaser acquires ar~ equitable interest in real property at a sheriffs sale, legal title remains with a debtor until the deed is recorded. If the debtor files a bankruptcy petition before the deed is recorded, c~_~ exists pursuant to § 362(d) of the Bankruptcy Code to liR the automatic stay to [~mit the purchaser to obtain legal fifi0e. In re Pu/c~i, 261 B.P. 836, 842 (Bankr. W.D.Pa.2001); In re Donovan, 183 B.P. 700, 702(Bankr. W.D.Pa. 1995); In re Golden, 190 I];.P. 52, 58 (Bankr. W.D.Pa. 1995). Accordinily, if the shetiff's sale in the instant case was valid, then relief~om the stay should be granted to Movant, as Debtor has no interest colpgT~.ble in bankluptcy. Debtor's only argument for invalidation of the sale is that he did not receive notice of the I have jurisdiction pursuant to 28 U.S.C. §§157 and 1334. Tiffs matter is core pursuant to 2S U.S.C. §~7(b)(2)(G). 2 sheriff's sale. This Court is empowered to invalidate a sherlff,s sale for lack of notice to a debtor. Tay/or v. S/ick 178 F.3d 698, 703 (3d Cir. 1999)(bav~-uptoy court could entertain challenge to adequacy of procedural due process in ~d~eriff's sale). See also, In re &~ders, 75 B.I~ 427, 432 (Bankr. E.D.Pa. 1987), rev'don otherground~, FRG, In~ v. Man/ey, 919 F.2d 850 (3n Cir. 1990). In state court, the bu~len of proof teats on the party seeking to set aside a sheriff's sale to show by clear and convincing evidence that the Cmmmstences warrant r~. M & TMortg. Corp. v. Keesler, 826 A.2d 877, 879 (Pa. ~uper.2003). Thus, Debtor must prove by clear and convinc~a8 evidence that his due process fights under state procedural roles were disregarded i~a the instant sale. Those rule~ provide as follows:. Pa.R. Civ. P. 3129.1. ~ale of Real ProperS. Notice. Affidavit (a) No sale of real property upon a writ of exe~tion shall be held until the plMnfi~T hns film with the shefiffthe afl~lavit required by subdivision (b) and the notice required by Rule 3129.2 has been served. (b) The aflfidavlt shall set forth to the best of ~- aEfiant's knowledge or infonuntion and belief as of the date the praecipe for t~e writ of execution was filed the name and address or whereabouts of (1) the owner or reputed owner of the real property and of the If the name and address or whereabouts of the persons in subparalontph (1) through (4) cannot be reasonably ascea'tainod, the afifidavit shall so state. Pa.R.Civ. P. 3129.2. Notice of Snle. Handbills. Written Notice. Publication (a) Notice of the sale of real property shall be given by handbills as provided by subdivision (b), by written notice as proviZ[ed by subdivision (c) to sil persons whose name~ and addresses are set forth in the aflfidavit required by Pule 3129.1, and by publication as provided by subdivision (d). (b) The handbills shall be posted by the sheriffi~a the sheriff's orifice and upon the property at least thirty days before the sale, .... (c) The written notice shall he prepared by the fdai~iW, shall contahz the same information as the handbills or may consist of the handbill and shall be served at least thirty days before the sale on all ~ whos~ names and addresses are set forth in the affidavit required by Rule 3129.1. (1) 5e~ice of the notice shall be made (i) upon a de~mdant in the judgment who has not entered an appearance and upon the owner o~the property (A) bythe sheriffor by a competent adult in the ~ pre~n'bed by Rule 40200 for the service of original process upon a defendant, or (B) by the plaintiffmai~g a copy in the mannec prexcribed by Rule 403 to the addresses set forth in the smdsvit; or (d) Notice containins the information required by subdivision Co) shall also be ~ive~ by publication by the sheriff once a week for three succc~ive weeks in a newspaper of general circulation in the county and in the legal publL,~__fion, if any, designated by rule of court for publication of noiice$, ~tte first publication to be made not leas than twenty-one days before the date of sale. Pa.R. Civ. P. 403 Service by mail. If e rule of civil procedure authorizes o 'nginal process to be served by me~ a copy of the process shell be mailed to the defendant by any form of mail requiring a rec~pt signed by the defendant or his authorized age~. Service is complete upon deliveq, of the n~i. In addition to these rules, a state statute requlre~ a residential mortgage iende~ to comply with certain special notice requirem~mts, which are as follows: (a) Before any residential mortgage lender may ... take possession of any security of the residential mortgage debtor for such residential mortgage obligation, such person shall give the rezide~fi~! mort?ge debtor notice: of such intention at least thirty days/n advance a~ provided in ~ section. (b) Notice of intention to take action as specified in subsection (a) of this section shall be in writing, sent to the residential mortgage debllor by registered or certified mail at his last known address and, if different, at the residence which h the subject of the residential mortgage. (c) The ~vdiien notice shall clearly and conspicuously s~te: (1) The particular obligation or real estate security interest; (2) The nature of the default claimed; O) The right of the debtor to cure the default a.,~ provided in section 404 of this act and exactly what perfonnaac~ including what sum of money, if any, must be tendered to cure the default; (4) The time within which the debtor must coro the default; · (5) The method or metho~ by which the debtor's o~ or pos.seSsion ofthe real estate may be terminated; and (6) Tho dSht of the debtor, if any, to transfer the real estate to another person subject.to the seouity interest or to refinance the obligation and of the trensferen's risht, if any, to enro tbe default. (d) The notice of~on to foreclose provided in this section shall not be required where the re~klential mort?~o debtor, has abandoned or voluntarily surrendered the property which is the subject of a resi~lential mortgage. p.s. 403 ("Act 69. The notice~ requked by the Pennsylvania Rulea of Civil Procedure and by Act 6 were admitted into the recorc~ They show that notices of the ~flusiff's sale were duly placed into the mail, published in a newspaper of general circulation, and posted on the premises to be sold. Debtor has no evideocx to show that thes~ notices were not served. Under P&R.C.P. 403, Movant'$ return receipt, signed by Debtor, is suflicient proof of service, which is not rebutted by Debtor's self-serving denials lfl~at he received such notice. Simila~y, his statement that no handbills were placed on tho premises flie~ in the face of the sheriff's affidavit that handbills were placed. Debtor's denials do not constitute clear and convincin~ evidence; therefore, Debtor's case must fail. In addttioi% ~ p~~ttions mdtr~o:that-.~.~y to reniam'~m ~ no~ only would ~an'~in,futilit~: ~ also adls~o~, itsI.~t6t~l ~,the ou~ l:~btor s mo~ I~ilis ~ ~ ~S ~ ~ lis ptoSl~s four increasing his ~ are. ~t~.~A~s mort~o payment alon~ ~;his curr~nt ~n~: Yet his p~ indi~e~ that be will cure approximal~ly ;$16~4~ 00 in preq~etition arrears through payments of Up to $819~ 12 per montk All information of r~rd indicates BY THE COURT HARRISBURG, PE1qNS~V~ DATED: September 3, 2003 6 FOR THE MIDDLE DISTRICT OF PENN..WLVANIA JOHN E. BARTON A/K/A JOHN BARTON CASE NO: 1-03-01417 DEBTOR(S) CHAPTER '13 CERTIFICATE OF SERVICI-~ The undersigned deputy clerk hereby certif~s that a copy of this document was mailed today to the parties named below at their respective addresse,,~ as shown below. JUDITH ROMANO, ESQ. PETER J. MULCAHY, ESQ. FEDERMAN & PHELAN LLP ONE PENN CENTER AT SUBURBAN STATION 1617 BLVD., STE, 1400 PHILADELPHIA, PA 19103-9897 SHAWN B. COHEN, ESQ. COHEN & AXINN 1904 N. JUNIATA STREET HOLLLIDAYSBURG, PA 16648 CHARLES J DEHART III ESQUIRE PO BOX 410 HUMMELSTOWN PA 17036 Dated: September 3, 2003 ,{"~ckie Cherryb~n - Deputy Clerk EXHIBIT C Federman and Phelan, LLP One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 Fax # (215) 563-5534 September 30, 2003 John Barton Or Occupants 55 Gut~hall Road Shippensburg, PA 17257 RE: 55 Gutshall Road Shippensburg, PA 17257 Dear Occupant: We represent GE Capital Mortgage Services, Inc. which became equitable owner of the above premises as a result of foreclosure and ju~cial sale by the Sheriff of the County of Cumberland on March 5, 2003. You are now in possession of the premises without Authority or per~nissisn of our client and you must Vacate immediately. Unless you immediately vacate the premises and make them available for poseession~ court action will be taken against you at once. Very truly yours, FEDERMAN ~Ax/D PHELAN Francis S. H~llinan, Esquire VERIFICATION Noelle A. Connor, Esquire, hereby states that she is the attorney for the Plaintiff in this action, that she is authorized to make this verification, and that the statements made in the foregoing Repl3/to New Matter are true and correct to the best of her knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa~C:S. §4904 relating to unswom falsifications to authorities. FEDERM. AN AND PHELAN, LLP Date: March~ 2004 · Noelle A. Connor, Esquire Attorney for Plaintiff One Penn Center at Suburban Station Suite 14C~) 1617 J.F.K. Blvd. Philadelphia, PA 19103-1814 (215) 563-7000 FEDERMAN AND PHELAN, L.L.P. BY: Noelle A. Connor, Esquire INDENTIFICATION NO.: 83130 One Penn Center at Suburban Station Suite 1400 1617 J.F.K. Blvd. Philadelphia, PA 19103-1814 (215) 563-7000 GE Capital Mortgage Services, Inc. Plaintiff, VS. John Barton or Occupants Defendant. Attomey for Plaintiff COURT OF CO~VION PLEAS Cumberland County CIVIL DIVISION No. 03~1243-Ci~41 Term CERTIFICATION OF SERVICE I certi~ that a tree and correct copy of PlaintiWs Reply to Defendant's New Matter was sent via first class mail to the person listed below on the date indicated: Brace J. Warshawsky, Esquire Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 Date: March~., 2004 cr m Noelle A. Connor, Esquire Attorney for Plaintiff VI?,RIi~IC ATII~N Sheetal R. Shah-Jani, 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 £oregoing Motion for Summary Judgment and supporting Brief are true and correct to the best of her knowledge, information and belie£. Thc undersigned understands that this statement herein is made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom £alsification to authorities. Sheetal R. Shah-Jani,(Esq~tre Attomey for Plaintiffx---~ FEDERMAN AND PHELAN, LLP By: SHEETAL R. SHAH-JANI, ESQUIRE Identification No. 81760 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (21 _~) _~63-Tf10fl GE Capital Mortgage Services, Inc. 5024 Parkway Plaza Boulevard, Building 7/F/C Charlotte, NC 28217 VS. John Barton Or Occupants 55 Gutshall Road Shippensburg, PA 17257 AVtorney for Plaintiff Court of Common Pleas Civil Division Cumberland County No,. 03-5194 Civil Term CF. RTIFICATION OF ~F. RV1FC~F. I hereby certify tree and correct copies of the foregoing Plaintiffs Motion for Summary Judgment, Supporting Brief and Praecipe for Argument were served by regular mail on Defendant at the address and on the date listed below: Bruce J. Warshawsky, Esquire 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 PRAECIPE FOR LISTING CASE FOR A~RGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. FEDERMAN AND PHELAN, LLP By: SHEETAL R. SHAH-JANI, ESQUIRE Identification No. 81760 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 GE Capital Mortgage Services, Inc. 5024 Parkway Plaza Boulevard, Building 7/F/C Charlotte, NC 28217 Attorney for Plaintiff Court of Common Pleas Civil Division VS. John Barton Or Occupants 55 Gutshall Road Shippensburg, PA 17257 Cumberland County No. 03-5194 Civil Term State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Motion for Summary Judgment 2. Identify counsel who will argue case: (a) for plaintiff: Address: Sheetal R. Shah-Jani, Esquire One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite t400 Philadelphia, PA 19103 (b) for defendant: Bruce J. Warshawsky, Esquire Address: 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17257 I will notify all parties in writing within two days that this case has been listed for argument. Date: Argument Court Date: Attorney fi)r Plain~} GE CAPITAL MORTGAGE SERVICES, INC., Plaintiff V. JOHN BARTON OR OCCUPANTS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERiLAND COUNTY, PENNSYLVANIA CiVIL ACTION - LAW NO. 03-5194 CIVIL TERM ANSWER TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT And now comes the Defendant, John Barton, by and through his attorneys, Bruce J. Warshawsky, Esquire, and Metzger, Wickersham, Knauss & Erb, P.C. to file an Answer the Plaintiff's Motion for Summary Judgment filed in the above-captioned action, as follows: 1. Admitted upon information and belief. 2. Denied. As is more specifically set forth in Defendant's Affidavit, a true and correct copy of which is attached hereto as Exhibit "A", Defendant never received Exhibit "B" attached to Plaintiff's Motion for Summary Judgment until said document was provided and attached to Plaintiff's Reply to New Matter filed on or about March 2, 2004. 3. Admitted in part and Denied in part. It is admitted that Plaintiff filed the instant Ejectment action on or about October 1, 2003. It is denied that "the (Defendant) occupant(s)" have refused to vacate the property on their own, as Defendant has never been provided with appropriate legal notice to vacate the property and, until the filing and service of the instant lawsuit, Defendant had no actual notice that Plaintiff sought to evict him from the subject property, as is more specifically set forth in Defendant's Affidavit, a tree and correct copy of which is attached hereto as Exhibit "A". By way of further response, with respect to notice and service upon Defendant, Plaintiff sought by Motion, and obtained, by Order of Court dated 304203-1 December 10, 2003, authorization to serve Defendant by special means, which are documents of record in this case. 4. Denied as Stated. The documents referred to in this paragraph speak for themselves. 5. The averments of this paragraph are legal conclusions to which no response is required. To the extent that a response is deemed to be required, it is specifically denied that the Defendant, John Barton, was occupying said premises without right but rather, with Plaintiff's consent, either express or implied, as no Notice to Quit w~ ever provided and as is more specifically set forth in Defendant's Answer with New Matter and as more specifically set forth in Defendant's Affidavit, a true and correct copy of which is attached hereto as Exhibit "A". Furthermore, Defendant has continued to insure the premises, naming Plaintiff's successor in interest, Wells Fargo as 1st Mortgagee, as is more specifically set forth in the declaration sheet a tree and correct copy of which is attached hereto as Exhibit "Fl", thus conferring a benefit upon Plaintiff about which Plaintiff was aware. 6. Denied as stated. Defendant is a tenant at will, regardless of his payment or non- payment of rent to Plaintiff, pursuant to the facts of this case and in accordance with applicable law. By way of further response, Defendant, as a tenant at wi[ll, is entitled to a Notice to Quit and proper service thereof, in accordance with 68 P.S. 250-501, which Defendant has never been provided. 7. The averments of this paragraph are legal conclusions to which no response is required. To the extent that a response is deemed to be required, Defendant is not raising any issue with respect to the sheriff's sale, only the defense of the instant Ejectment action. 304203 - 1 8. The averments of this paragraph are legal conclusions to which no response is required. To the extent that a response is deemed to be required, Defendant is not raising any issue with respect to the sheriff's sale, only the defense of the instant Ejectment action. 9. The averments of this paragraph are legal conclusions to which no response is required. To the ext~nt that a response is deemed to be required, Defendant respectfully submits that there are genuine issues of material fact which are raJ[sed in the documents of record including this Answer to Plaintiff's Motion for Summary Judgment and which prevent the Motion for Summary Judgment from being granted. WHEREFORE, Defendant respectthlly requests that this Honorable Court deny the Plaintiff's Motion for Summary Judgment and award him costs, attorneys' fees and other just relief. Dated: METZGER, WlCKERSHAM, KNAUSS & ERB, P.C. ~'~e J. ~arshawsky, Es~ By: Attorney I.D. No. 58799 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorneys for Defendant John Barton 304203-1 GE CAPITAL MORTGAGE SERVICES, INC., Plaintiff V. JOHN BARTON OR OCCUPANTS, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-5194 CIVIL TERM AFFIDAVIT My name is John Barton. I am an adult individual and reside at 55 Gutshall Rd., 304209-1 Shippensburg, Cumberland County, PA 17257 ("My Residence,"). 2. The document which is attached as Exhibit "C" to Plaintiff's Reply to New Matter and which is also attached as Exhibit "B" to Plaintiff's Motion for Summary Judgment was never provided to me until it was provided to me by my attorney on or after March 2, 2004. I never saw this written notice or any other written notice with respect to any need to vacate My Residence until I was first notified of this lawsuit in January, 2004. 3. Prior to being made aware of this lawsuit, ][ was never provided with any document, either by personal service or at My Residence nor was any notice ever posted at My Residence. 4. I filed for a Chapter 13 Bankruptcy on or about March 12, 2003, with the expectation that I would be able to pay my mortgage obligations to the Plaintiff's successor, Wells Fargo through the Bankruptcy Plan. After filing the bankruptcy, I learned that Wells Fargo did not wish to be paid through the bankruptcy and I made repeated attempts to contact Wells Fargo and tendered monthly payments for my mortgage to Wells Fargo which were returned to me uncashed, but without any notice that Wells Fargo wanted me to vacate My Residence. 5. I have maintained insurance on My Residence through Nationwide Mutual Fire Insurance Company and renewed this insurance on July 27, 2003, naming Wells Fargo as the first mortgagee, which information I provided to Wells Fargo and for which the declaration page is attached to the Answer to Plaintiff's Motion for Summary Judgment as Exhibit "B". 6. I continued to move forward with my Chapter 13 Bankruptcy Plan and made payments to the Plan which resulted in an Order confirming the Plan on October 10, 2003. Thereafter, I was advised by my then counsel, Shawn Cohen, Esquire, that the fome and effect of the Order issued by the Honorable Mary D. France, Bankruptcy Judge for the Middle District of Pennsylvania, which Order is attached as Exhibit "B" to Plaintiff's Reply to Defendant's New Matter, that the Chapter 13 Plan would not save my residence ftom foreclosure. 7. After Bankruptcy Judge Frantz's September 3, 2003, Order, I received no notification fi.om the Plaintiff that they wished me to vacate My Residence, until I received notice through the filing of this lawsuit. 8. Attached to this Affidavit are various documents including a summary of my Chapter 13 payments, copies of three checks and return correspondence fi.om Wells Fargo in connection with tendered payments, and the Chapter 13 Plan dated March 27, 2003, which shows the payment of Plaintiff's successor in interest, Wells Fargo, through the Chapter 13 Plan. These documents support my contentions set forth above. hn B~ton 304209-1 3476 Stateview Boulevard Fort Mill, SC 29715 June 05, 2003 John E Barton 55 Gutshall Rd Shippensburg PA 17257 Dear John E Barton : RE: Loan Number 0021682596 Client 936 Enclosed please find your check(s) in the amounn(s) of S2,900.0t. We are renurning the fnnds: because they do non represent ..... amount due on your.~.a~czunr ·~T~se_ b~ ~iseg.~the renan ~_ '_~e. nerms of your Moral_or ~ed o~'Tr~]st._. ., F · .... ~ like no discuss the p~-~ent cb--~.tion o.f_.you~ loan, please .~.~ ..... '.~7~ -. a~ (215) 563-7000. . _: .%~-- Sincerely, .... Wells Fargo Home Mortgage Foreclosure Department FC025/411 i~' JOHN E. BARTON 8.87%..,.~c.-/ '--;-' c~ , -..~-, ' ;-~- -~..) 259z~ ~ G~S~ ROAD ' ~ '~ SHIPPENS~RG, PA 1~' ~ .. .~ ~,.~ ,:,~ ..... ~... , 3476 Stateview Boulevard Fort. Mill, SC 29715 August 14, 2003 John E Barton 55 Gutshall Rd Shippensburg PA 17257 Dear John E Barton : RE: Loan' Nuraber 002t682596 Client 936 Enclosed please find your check(s) in the amount(s) of $966.67. We are returning the funds because they do not represent the total amount due on your account. Please be advised the return of these funds shall not constitute a waiver of any remedy permitted under the terms of your Mortgage or Deed of Trust. Your loan is in a Foreclosure status at this time. If you would like to discuss the present condition of your loan, please contact our attorney's office, FEDERMAN & PHELAN LLP, at (215) 563-7000. ' Sincerely, Wells Fargo Home Mortgage Foreclosure Department FC025/411 3476 5tateview Boulevard Fort Mill, SC 29715 September 09~ ~2003 John E Barton 55 Gutshall Rd Shippensburg PA 17257 Dear John E Barton RE: Loan Number 0021682596 Client 936 Enclosed please find your check(s) in the amc~unt(s) of $966.67.' We are returning the funds because they do nc.t represent the total amount due on your account. Please be advised the return of these funds shall not constitute a waiver of any remedy permitted under the terms of your Mortgage or Deed of Trust. Your loan is in a Foreclosure status at this time. If you would like to discuss the present condition of your loan, please contact our attorney's office', ~DERMAN & PHELJtN LLP, :at'I'{215)563-7000. Sincerely, Wells Fargo Home Mortgage Foreclosure Department FC025/0GT IN THH UNITED STATES BANKRUPT~: COURT MXDDLE DXSTRZCT OF PHHNHYI,VANXA Debtor%l: John E. Barton SSN: 169-36-1445 Debtor#2: - D%2 SSN~ - Check Here if Amended Plan Bankruptcy Case No. 03~ CHAPTER 13 PLAN DATED MARCH 27, 2003 COMBINED WITH CLAIMH BY DEBTOR PURSUAI~/TO RULE PLAN FUNDING / Total amount of $ 204.78 per month for a plan term of the first $409.56 per month for the next 12 months for a total cf 48 months, earnings as follows: 24 months; months; $819.12 per month for the next 12 shall be paid to the Trustee from future Payments: D~I D#2 By Income Attachment Directly by Debtor $ - $ see above $ $~ By Automated Bank Transfer $- $~ (SSA direct deposit recipients only) Estimated amount of additional plan funds from sale proceeds, etc. $ - The Trustee shall calculate the actual total payments estimated throughout the plan. The responsibility for ensuring that there are sufficient funds to effectuate the goals of the Chapter 13 plan rests with the debtor. 1. Plan Payments are to begin no later than one month following %he filing of the plan. 2. For amended plans: a. The total plan payments shall consist of all amounts previously paid together with the new monthly payment for the remainder of the plan's duration. b. The original plan term has been extended by ~ months for a total of ~ months from the original plan filing date. c. The payment shall be changed effective -. d. The debtor(s) have filed a motion requesting that the court appropriately change the amount of all wage orders. The debtor agrees to dedicate to the plan the estimated amount of sale proceeds: $ - from the sale of this property (describe) -. Any and all sales shall be completed by -. Lump sum payments shall be received by the Trustee as follows: Other payments from any source (describe specifically) ~ shall be received by the Trustee as follows: ~. Tho sequonae of plan pal~nents shall be deeermined by the Trustee, using %he following es a general guido: Level One: Unpaid filing fees. Level Two: Monthly ongoing mortgage payments, ongoing vehicle and lease Level Three: Level Four: Level Five: Level Six: Level Seven: payments, installments on professional fees. Post-petition utility claims. Mortgage arrears, secured taxes, rental arrears, vehicle payment arrears All remaining secured, priority and specially classified claims, miscellaneous secured arrears. Allowed general unsecured claims. Untimely filed unsecured claims for which the debtor has not lodged an objection. 1. LONG TERM CONTINUING DEBTS CURED ANDREINSTATED, AND LIEN (if any) RETAINED Name of Description of Monthly Pre-petitionArrears Interest Rate to Creditor Collateral Payment to be Cured be Paid on Arrears WELLS FARGO 55 GUTSHALL RD $966 $16,422 0% SHIPPENSBURG PA, 17257 2. SECURED CLAIMS PAID IN FULL DURING TERM OF ~N, ACCORDING TO ORIGINAL CONTRACT TEI~LS, WITH NO MODIFICATION OF CONTRACTUAL TERMS AND LIENS RETAINED UNTIL PAID Name of Description of Contractual Monthly Principal Balance Contract Rate Creditor Collateral Payment (Level 2) of Claim of Interest 3. SECURED CLAIMS F~LLT PAID ACCOP4)ING TO MODIFIED TE~MS AND LIENS RETAINED Name of Description of Modified Principal Interest, Monthly Payment Disburse- Creditor Collateral Balance Rate or Pro Rata merit Level SECURKDCLAIMSNOT PAID DUE TO SURRENDER OR ABXNDON OF COT.?.~TERALAND DATE TO BE SURRENDERED: Identify the collateral with specificity. 5. THE DEBTOR PROPOSES TO AVOID OR LIMIT THE LIENS OF THE FOLLOWING CREDITORS 6. SECURED TAX CLAIMS FULLY PAID AND LIENS RETAINED Name of Total Amount Type of Rate of Identifying Number if Tax Creditor of Claim Tax Interest Collateral is Real Estate Periods 7. PRIORITY TAX CLAIMS PAID IN FULL Name of Creditor Total Amount Type of Tax Interest Rate of Claim Tax Periods 8. PRIORITY SUPPORT AND ALIMONY ARREARS If this section is left blank, the debtor(s) expressly agree to continue paying any support and alimony arrears through existing state court orders and consent to relief form stay in favor of interested parties for the purpose of continuing wage attachment orders. Name of Creditor Total Amount of Claim Monthly payment or pro rate 9, ADMINISTRATIVE PRIORITY CLAIMS TO BE FULLY PA'~;D a. Percentage fees payable to the Chapter 13 Fee and Expense Fund shall be paid at the rate fixed by the United States Trustee not to exceed ten percent of distributions. b. Filing fees: $ 185 the balance of $ n/a shall be fully paid by the Trustee to the Clerk of Bankruptcy Court from the first available funds. c. Attorney fees= $ 2,400 payable to Cohen, Axinn & Cohen, P.O. Box S97, Hollidaysburg, Pa. 16648. In addition to a retainer of $ 1,000 already paid by or on behalf of the debtor, the amount of $ 2,300 at the rate of $ 0 per month. 10 OTHER PRIORITY CLAIMS TO BE PAID IN FULL (include vehicle leases that will complete during the plan term) Name of Creditor Total Amount Interest Statute Providing of Claim Rate Priority Status 11. POST-PETITION UTILITY MONTHLY PAYMENTH [limited to agreement between debtor(s) and utility] These payments comprise a single monthly combined payment for post-petition utilities, any post-petition delinquencies and unpaid seourity deposits. The claim payment will not change for the life of the plan. Should the utility file a motion requesting a payment change, the debtor will be required to file an amended plan. These payments may not resolve post-petition claims of the utility. They may require additional funds from the debtor(s) after discharge. Name of Creditor Monthly Payment 12. CLAIMS OF UNSECURED NONPRIORITY CREDITORS SPECI~T~y CLABSIFXED Name of Creditor Principal Rate of Monthly .Arrears to Interest Rate Balance Interest Payments be Cured on Arrears 13. CLAIMS OF GENERAL, NONPRIORITY UNSECURED CREDITORS The debtor(s) agree to distribution a minimum of $ 142.80 to unsecured nonpriority creditors, which shall comprise a percentage of unsecured debt. The percentage of payment may change, based upon the total amount of allowed claims. Late-filed claims will not be paid unless all timely-filed claims have been paid in full. Thereafter, all late-filed claims will be paid pro-rata unless an objection has been filed within 30 days of filing the claim. Creditors not specifically identified in Parts 1-10, .above, are included in this class. The estimated percentage of payment to general unsecured creditors is 0 % GENERAL PRINCIPLES APPLICABLE TO ~T~. CIIAPTER 13 PLANS This is the voluntary Chapter 13 reorganization plan of the debtor(s). The debtor(s) understand and agree that the Chapter 13 plan may be extended as necessary by the Trustee, to not more than sixty (60) months in order to insure that the goals of the plan have been achieved. Ail pre-petition debts are psid through the TruE, tee. Additlonally, ongoing payments for vehicles, mortgages and assumed leases are also paid through the Trustee, unless the Court orders otherwise. Percentage fees to be trustee are paid on all distributions at the rate fixed by the United States Trustee. The Trustee has the discretion of adjust, interpret and implement the distribution schedule to carry out the plan. The Trustee shall follow this standard plan form sequence unless otherwise ordered by the Court. The provisions for payment to secured, priority and specially classified creditors in this plan shall constitute claims in accordance with Bankruptcy Rule 3004. Proofs of claim by the Trustee will not be required. The Clerk shall be entitled to rely on the accuracy of the information contained in this plan with regard to each claim. If the secured, priority or specially classified creditor files its own claim, then the creditor's claim shall govern, provided the debtor(s) and debtor(s)' counsel haw~ been given notice and an opportunity to object. The Trustee is authorized without prior notice, to pay claims exceeding the amount provided in the plan by not more than $250. Should a pre-petition creditor file a claim asserting secured or priority status that is not provided for in the plan, then after notice to the Trustee, counsel of record (or the debtor(s) in the event that they are not represented by counsel), the Trustee shall treat the claim as allowed, subject to the debtor(s)' successful objection. Both of the preceding provisions will also apply to allowed secured, priority and specially classified claims filed after the bar date. LATE-FILED CLAIMS NOT PROPERLY SERVED ON THE TRUSTEE AND THE DEBTOR(S)' COUNSEL OF RECORD WILL NOT BE PAID. The responsibility for reviewing the claims and objecting where appropriate is placed on the Debtor(s). Attorney Name and PA ID #: Shaw. B. Cohe~ ?9478 Attorney Address and Phone: Cohen, Axinn & Cohen, P.O. Box 597, Hollidaysburg, Pa. 16648. Debtor Signature: COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN ACKNOWLEDGMENT Before me, a notary public in and for said State and County, appeared John Barton, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the foregoing Affidavit for the purposes therein contained, having due authority therefor. IN WITNESS WHEREOF, I hereunto set my hand and official seal this May, 2004. Notary Public day of No'rAMIAL SEAL CAROL A. t.Y'rER, Notary Public City of Harri~burg, Dauphin County ommiSSien Expires Dec. 28, 2004 304209-1 HOMEOWNER POLICY: 58HO6BO-207 1ST MORTGAGEE AND ADDRESS WELLS FARGO HOME MRTG #936 ISAOA ATIMA PO BOX 23020 JACKSONVILLE FL 322413030 NATIONWIDE MUTUAL 'FIRE INSURANCE COMPANY MEMORANDUM OF INSURANCE NON-ASSESSABLE POLICY PERIOD NAMED INSURED AND ADDRESS JOHN E BARTON 55 GUTSHALL ROAD SHIPPENSBURG PA 17257~9642 INCEPTION 7-27-03 EXPIRATION 7-27-04 PAGE 1 OF 1 POLICY PERIOD BEGINS 12:01 AM STANDARD TIME AT ~HE RESIDENCE PREMISES. LOCATION OF DESCRIBED PROPERTY 55 GUTSHALL ROAD SHIPPENSBURG PA' 17257-9642 ADDITIONAL INSURED NOT APPLICABLE LOAN NO. 21682596 *****TO REPORT CLAIMS, CALL 1-800-421-2535 IMPORTANT NOTICE This Memorandum of Insurance provides basic information regarding coverage, premium and interests protected by your policyas of 2-02-04. A formal Declarations page s~perseding this Memorandum will be mailed which will providecomplete updated coverages and premium detai s. SECTION I COVERAGES LIMIT SPECIAL LIMITS OF LIABILITY ADDITIONAL COVERAGE OPTIONS A-DWELLING $124,500 OPTION LIMIT B-~THER STRUCTURES $28,240 SEE POLICY J-EXT. REPL. COST APPLIES C-PERSONAL PROPERTY $94.150' " D-LOSS OF USE $134,500 K-REPL. COST PLUS - DWELLING APPLIES SECTION II COVERAGES L-PROTECT. DEVICE APPLIES E-PERSONAL LIABILITY PD/BI-EA OCCURRENCE F-MEDICAL PAYMENTS TO OTHERS-EA PERSON $100,000 $i.000 OTHER COVERAGES LIMIT -BIOLOGICAL DETR/DAMAGE CLEAN UP $5,000 · -FIRE DEPT. SERV. CHARGES $500 -CREDIT CARD-FORGERY $1,000 AND ELEC. FUNDS TRANS. DEDUCTIBLE-SECTION I (IN CASE OF A LOSS UNDER SECTION I. WE COVER ONLY THAT ~ART OF THE LOSS OVER THE DEDUCTIBLE STATED). ALL PERILS $ 250 SECTION II EXCEPTIONS: The residence premises is the only pr~mises owned or held for rental by the named insured or spouse, other than business property, and is used solely for private residential purposes. Exceptions, if any: NONE SPECIAL PROVISIONS (Applicable only if indicated): INFLATION PROTECTION COVERAGE IS INCLUDED. Receipt of payment is hereby acknowledged. Balance. if any. will be billed by the company. Checks and drafts are received subject to collection only. PREMIUM $571.00 ~ ~ ~ COUNTERSIGNATURE DATE:, 2- 2-04 ~ENT NAME AND NO. R DANGELLO P~ 2417 CERTIFICATE OF SERVICE I, Bruce J. Warshawsky, Esquire, do hereby certify that on the date set forth below, I did serve a true and correct copy of the foregoing ANSWER TO PLAINTWF'S MOTION FOR SUMMARY JUDGMENT and upon the following person(s) at the following address(es) indicated below by sending same in the United States Mail, first-class, postage prepaid: Frank Federman, Esquire Noelle A. Connor, Esquire Sheetal R. Shah-Jani, Esquire Federman and Phelan, LLP One Penn Center at Suburban Station 1617 JFK Boulevard Philadelphia, PA 19103-1814 Dated: METZGER, WICKERSHAM, KNAUSS & ERB, P.C. 304203-1 GE CAPITAL MORTGAGE SERVICES Plaintiff VS. JOHN BARTON OR OCCUPANTs Defendants : IN THE COURT OF COMMON PLEAs OF : CUMBERI~LND COUNTY, PENNSYLvANiA : NO. 03-5194 CIVIL TERM TO THE PROTHONOTARy: ENTRY OF APPEARANc~ Date: June 1, 2004 The undersigned Dale F. Shughart. Jr., Esquire and Hamilton Davis, Esquire, hereby enter their a' earcL C. conjunction with Federman & Phel~ _race ~s local Counsel in representing the Plaintiff at Oral ~ .... ~ limited purpose of ~'"~'c °n,.~ 9, 2004' Date: June 1, 2004 ~)~0 ~%~ Supreme Cour~/i ). 19373 35 East High St]met, Suite 203 Carlisle, PA 17013 241-4311 Supreme Court I.D. 10264 P. O. Box 40 ShippenSburg, PA 17257 (717) 32-5713 CC: Sheetal R. Shah-Jani, Esquire Federman and Phelan, LLP Bruce j. Warshawsky, Esquire GE CAPITAL MORTGAGE SERVICES, INC., PLAINTIFF : iN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANia JOHN BARTON OR OCCUPANTS, : DEFENDANT : 03-5194 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this ~r~"~__clay of June, 2004, IT IS ORDERED: (1) John Barton is ejected from 55 Gutshall Road, Shippensburg, Cumberland County, Pennsylvania. (2) GE Capital Mortgage Services, inc. is granted immediate possession of the property. Hamilton C. Davis, Esquire For Plaintiff Young-suh Koo, Esquire For Defendant By the ~pu~, ,~,'~ ' Edgar B. Bayley, "J. :sal GE CAPITAL MORTGAGE SERVICES, INC., PLAINTIFF JOHN BARTON OR OCCUPANTS, DEFENDANT : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 03-5194 CIVIL. TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY~ J. OPINION AND ORDER OF COURT Bayley, J., June 17, 2004:-- On March 5, 2003, plaintiff GE Capital Mortgage Services, Inc., became the owner of 55 Gutshall Road, Shippensburg, Cumberland County, Pennsylvania, as the result of a sale by the Sheriff of Cumberland County in an action of mortgage foreclosure against John Barton. On October 1,2003, plaintiff instituted this action in ejectment to obtain possession of the property from defendant John Barton. On February 4, 2004, defendant filed an answer with new matter to the complaint. In the new matter he avers: 8. Since March 5, 2003, Defendant, John Barton, has been occupying the premises with the knowledge and acquiescence of the Plaintiff. 9. On numerous occasions, Defendant, John Barton, attempted to contact Plaintiff and Plaintiff's counsel regarding his continued occupancy of said premises, to which the Defendant, ,John Barton, received no response or a response that they would not speak with him. 10. The Defendant, John Barton, has never received a notice to quit or other notification that the Plaintiff wishes for him to be removed from the premises, other than this Complaint in Ejectment. 11. The Defendant, John Barton, has tendered monies to the 03-5194 CIVIL TERM Plaintiff in connection with his continued occupancy of the said premises. 12. The Defendant, John Barton, has maintained insurance coverage on the premises, with Wells Fargo as an additional insured, since March 5, 2003 up through the present. 13. Plaintiff is enjoying the benefit of Defendant's continued occupancy of the premises, in that the premises are not vacant and are being insured by the Defendant, John Barton. 14. Plaintiffs occupation of the premises is a tenancy at will, because the Plaintiff is aware of Defendant's continued occupancy and has acquiesced in his continued occupancy. 15. As a tenant at will, the Defendant, John Barton, is entitled to written notification of the Plaintiffs request that he remove from the premises. On March 3, 2004, plaintiff filed a reply denying all of the factual averments in the new matter. Plaintiff has filed a motion for summary judgment to which defendant filed an answer and an affidavit. He sets forth in the affidavit that he has never received a notice to quit possession, and "1 have maintained insurance on My Residence through Nationwide Mutual Fire Insurance Company and renewed this insurance on July 27, 2003... for which the declaration page is attached .... "The declaration page of a policy issued by Nationwide Mutual Fire Insurance Company shows coverage on 55 Gutshall Road, Shippensburg with an inception on July ;!7, 2003, and expiration on July 27, 2004.4 The motion for summary judgment was briefed arid argued on June 9, 2004. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary' judgment under Pa. Rules of ~ There are other averments in the affidavit all pertaining to events leading up to the sheriffs sale. -2- 03-5194 CIVIL TERM Civil Procedure 1035.1-1035.5: [w]e must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 1.42, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non-moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." £rtel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). Finally, we must stress that summary judgment will be granted only in those cases which are free and clea~r from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). (Emphasis added.) Defendant maintains that plaintiff is not entitled to summary judgment because he has a defense to ejectment based on his claim that he has never received a notice to quit. As set forth in The Landlord and Tenant Act of 1951 at 68 P.S. Section 250.501, it is a requirement for a landlord to provide a tenant a notice to quit as a prerequisite to an eviction under a lease. An ejectment action following a sheriffs sale in foreclosure is a proceeding collateral to the foreclosur,e. Dime Saving Bank, FSB v. Greene, 813 A.2d 893 (Pa. Super. 2002). Pennsylvania Rules of Civil Procedure 1051 through 1058 cover an action in ejectment. There is no prerequisite under those Rules for a plaintiff seeking ejectment to provide a defendant a notice to quit. Alternatively, defendant maintains that he has raised the defense that he is now a tenant at will entitling him to a notice to quit. Citing La~sher v. Allegheny County Redevelopment Authority, 211 Pa. Super. 408 (1967), defendant argues that: The Lasher court ruled that a landlord-tenant relationship existed -3- 03-5194 CIVIL TERM between a grantor who remained in possession of a conveyed promises and a grantee who impliedly assented to such a possession. Furthermore, the Lasher court stated that the grantor was to be regarded as a tenant at will. In Lasher, the Superior Court of Pennsylvania stated: A lease embraces any agreement, whether express or implied, which gives rise to the relationship of landlord and tenant. Smith v. Royal Ins. Co., 111 F.2d 667, 671 (9tH Cir. 1940); Trickett, Landlord & Tenant 1 (Stern Ed. 1950). When, as here, the facts aro not in dispute the existence of the landlord and tenant rolation is a question of law for the court. 51 C.J.S., Landlord and Tenant §25 (1947). A tenant is one who occupies the premises of another in subordination to the other's title and with his assent, expross or implied. The agroement may be in writing or parol and the roservation of rent is not essential to the creation of the landlord and tenant relation. Wilson Estate,, 349 Pa. 646, 649, 37 A.2d 709,710 (1944). When a grantor remains in possession after a conveyance of the promises he has been regarded as a tenant at will, especially whero he has the consent of the grantee. 51 C.J.S., Landlord and Tenant §160 (1947). In Lasher, the Redevelopment Authority of Allegheny County, on August 5, 1964, condemned the property of J.H. Lasher. From April 1, 1957 until February 1, 1966, Chades and Mary Lou Crichley occupied the property continuously under a mutually advantageous oral arrangement with Lasher for the purchase and storage of lumber. Although no money was paid for ront the Crichleys were still tenants at will whose business located on the property was dislocated by the condemnation. The holding in Lasher was that the Crichleys were entitled to compensation from the Redevelopment Authority. In the case sub judice, while defendant has romained in possession of property following foreclosure, it was the sheriff who was the grantor of the deed to plaintiff, not defendant. Notwithstanding, defl~ndant maintains that a factual -4- 03-5194 CIVIL TERM issue remains as to whether he has stayed in the property under an implied agreement with plaintiff giving rise to a relationship of tenant at will and landlord. In Rapagnani v. Judas Co., 736 A.2d 666 (Pa. Super. 1999), the Superior Court stated: [t]he adverse party to the summary judgment motion must not rely on the allegations or denials of the pleadings. Rather, the adverse party must identify "evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced." Pa. R.Civ. P. 1035.3(a)(2). When summary judgment is granted under Rule 1035.2(2), it is because "the record contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to a jury." (Emphasis added.) Defendant, having his mortgage foreclosed, his property sold by the sheriff, and being sued in ejectment, has the burden to make out a prima facie defense that he has, notwithstanding, become a tenant at will of plaintiff which would entitle him to a notice to quit under the Landlord Tenant Act. The only evidence he has produced in support of that claim, as contrasted to his pleadings, is his affidavit. His averments in the affidavit and the declaration page of the Nationwide Insurance Policy does not make out a pdma facie defense. Accepting that he has chosen to maintain insurance on the property does not constitute prima facie evidence that he is a tenant at will. For the foregoing reasons, the following order is entered. ORDER OFCOURT AND NOW, this t,~. ~ day of June, 2004, IT IS ORDERED: (1) John Barton is ejected from 55 Gutshall Road, Shippensburg, Cumberland County, Pennsylvania. -5- Federman and Phelan By: Francis S. Hallinan, Esquire Identification No. 62695 One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 (215) 563-7000 GE Capital Mortgage Services, Inc. ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DWISION VS John Barton Or Occupants 55 Gutshall Road Shippensburg, PA 17257 No. 03-5194 Cumberland County PRAEC, IPE FOR .IIJDGMI~,NT IN F,.1ECTMENT TO THE PROTHONOTARY: Kindly enter Judgment in Ejectment in favor of the Plaintiff, GE Capital Mortgage Sen, ices, Inc. and against the Defendant(s) John Barton and Or Occupants for possession of premises 55 Gutshall Road, Shippensburg, PA 17257 pursuant to the attached court order dated June 17, 2004. Default Judgment entered as indicated above. DATE ~'rancis S. Hallinan, Esquire Attorney for Plaintiff Federman and Phelan By: Francis S. Hallinan, Esquire Identification No. 62695 One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 (215) 563-7000 GE Capital Mortgage Services, Inc. VS John Barton Or Occupants 55 Gutshall Road Shippensburg, PA 17257 ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION No. 03-5194 Cumberland County VERIFICATION OF NON-MILITARY SERVICE Francis S. Hallinan, Esquire, hereby verifies that he is Attorney for 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' C/vil Relief Act of Congress of 1940, as amended. (b) That defendant John Barton Or occupants, is over 18 years of age, and resides at 55 Gutshall Road, Shippensburg, PA 17257. This statement is made subject to the penalties of 18 PA. C.S.S 4904 relating to unswom falsification to authorities. ,Francis S. Hallinan, Esquire /Attorney for Plaintiff GE CAPITAL. MORTGAGE SERVICES, INC., PLAINTIFF V, JOHN BARTON OR OCCUPANTS. DEFENDANT IN THE COURT OF COMMON PLEAS OF: CUMBERLAND COUNTY, PENNSYLVANIA 03-5194 CIVIL TERM IN RE: .PLAINTIFF'8 MOTION FOR SUMMARY JUDGMEN? ~EFORE BAYL.EY, J: OI~ER OF COUR"[ AND NOW, this ~_~'~ay of June, 2004, IT IS ORDERED: John Barton is e,/ected from ,55 Gutshall Roa<l, Shippensburg. CumOe~land Coun~,Penns~vania, (2) GE Cep/tal Mortgage ~Rervices, Inc. Is granmd immediate possession of ~he property. Hamilton C. Davis. Esquire For Plaintiff Edgar 6. Ba¥1ey, Young-sub Koo, Esquire For Defendant TRUE COPY FROM PRAECIPE FOR WRIT OF POSSESSION COMMONWEALTH OF PENNSYLVANIA COUNTY OF Cumberland GE Capital Mortgage Services, Inc. YS John Barton Or Occupants 55 Gutshall Road Shippensburg, PA 17257 COURT OF COMMON PLEAS CIVIL DIVISION No. 03-5194 Cumberland County PRAECIPE FOR WRIT OF POSSESSION TO THE PROTHONOTARY: Issue Writ of Possession in the above matter for possession of: 55 Gutshall Road, Shippensburg, PA 17257 **PLEASE SEE THE ATTACHED LEGAL DESCRIPTION*** Being Known as No. 55 Gutshall Road ~Sancis S. Hallinan, Esquire ATTORNEY FOR PLAINTIFF Township, C'4ml~3.a,~ ~Un~y, ~n~aylvaGia, b~'~%~i _~.n~ l£~Lced a~ followa: BEING 55 GUTSFIALL ROAD, SHIPPENSBURG. PA 17257 TAX PARCEL # 39-13-0106-040 TITLE TO SAID PREMISES IS VESTED IN JOHN E. BARTON BY DEED FROM KENNETH E. CROUSE AND MARCIA A. CROUSE, HIS WIFE DATED 9/29/1986 AND RECORDED 10/1/1986 IN DEED BOOK F, VOLUME 32 PAGE 03-5194 CIVIL TERM Hamilton C. Davis, Esquire For Plaintiff (2) GE Capital Mortgage Services, Inc. is granted immediate possession of the property. gar B. Bayley, J. t.~ Young-suh Koo, Esquire For Defendant :sal -6- - · ,JV~'~Z$SION' E]'ecrmeat Pzoceedings PRC P 3i60 - .3165 erc GE CAPITAL MORTGAGE SERV%C~, INC. COURT O? CO..[.,iON ?L.~A.~ OF JOHN BARTON OR OCCUPANTS ~'o. 03-5194] ................................ T:: 20 ...... N'o ................................ T..~"_m 20_ p4: ........................... , P!'E ~ ............................. .= ~:.~. Nat ....................... s__L__QO .... C O .~ I'M O:,,%v E .-k L TDi.. C,F COU.", ~'r%' OF' CUMBERLAND To :k* f~e~' of ____. ............................... GE CAPITAL MORTGAGE SERVICES, INC. ........................................................................................ ~e:g: .,-"~'~'.~'"~ ~ ~O~ow~ : 55 GUTSRALL ROAD, SHIPPENSBURG, PA 17257 ~=-'.~ ~se,~:m o( ~.~' ,-~;- :ier-c:'..Fm~d .lli~.~g:7~f,,lt~}(t;.~ WB. IT OF POSSESS[OS SHERIFF'S COSTS: Advance Costs: 150.00 IJ6E~ ~'t~i h-~ .....18700 ............................................ SNorT f~ts--eoTtw-- ga;5~8' Poundage 1.08 ~ Fr~Fe ............ ~, 0.0 .......................................................................... Milage 14.80 gu~c barge .... 2.0 ~ 9.O ............................................ ~R_e~ f _und~ ~e_d.. _t.o_. _4 .Lt_~ _ .~o_ -~ 54.88 PRAECIPE FOR WRIT OF POSSESSION COMMONWEALTH OF PENNSYLVANIA COUNTY OF Cumberland GE Capital Mortgage Services VS John Barton Or Occupants 55 Gutshall Road Shippensburg, PA 17257 COURT OF COMMON PLEAS CWIL DIVISION No. 03-5194 Cumberland County PRAECIPE FOR I, FRIT OF POSSESSION TO THE PROTHONOTARY: Issue Writ of Possession in the above matter for possession of: 55 Gutshall Road, Shippensburg, PA 17257 **PLEASE SEE THE ATTACHED LEGAL DESCRIPTION*** Being Known as No. 55 Gutshall Road /Fran, ATTCidSRNEH. ¢ll~nOal~,pEl~qAuirlN~iFF a~Gx~a:L~l~3-au '& p<2sC. ~n.2he'Fu~nac~- R~d; t~ce'~h ~3 ~rees ~s= 11.3 per.es 2? ~eed ~c 31 Peahen co ~ pl~e O~ be~ng, ccnCa~ ~ acres. pe~hee. ~e 'o~ BEING 55 GUTSHALL ROAD, SHIPPENSBURG, PA 17257 TAX pARcEL # 39~.13-0106.040 TITLE TO SAID PREMISES IS VESTED I)~·IOF1N-E. BARTON BY DEED FROM KENNE~ E. CROUSE AND t'VLM~CIA A. CROUSE; HIS WIFE DATED 9/29/1986 AND RECORDED I0/1/1986 IN DEED BOOK F, VOLUME 32 PAGE ,, ,~ ~ ur t~L)~<ESStON ' Ejecn-~enr Proceedhags PRC P 3i60 - 3165 etc~ GE CA]?ITAL MORTGAGE SER¥%CE~, INC. COURT OF CG.~,IZ,£GN JOHN BARTON OR OCCUPANTS No ................................. T_.-'z:'m 20_ ..... CO.% fMO~%¥E.LL TH. OF COU~ :-ET OF CUMBERLAND GE CAPITAL MORTGAGE SERVICES, INC. be~: ;.P.'~--_~;.~:~ = fo~c~-s): 55 GUTSHALL ROAD, SHIPPENSBURG, PA 17257 Nov~r .2_t _-_2_0_C)_4- ....................................... IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA IN RE: John E. Barton a/k/a John Barton Debtor GE Capital Mortgage Services, Inc. Movant V. John E. Barton a/k/a John Barton Respondent ORDER Bk. No. I 04-04844 MDF Chapter No. 13 11 U.S.C. §362 AND NOW, it is hereby ORDERED that the foregoing Stipulation is hereby approved, shall be, and is hereby made an Order of this Court. ORDERED that the Automatic Stay under §362 with respect to the mortgage premises located at 55 Gutshall Road, Shippensburg, PA 17257, as more fully set forth in the legal description attached to said mortgage, be modified so as to permit the Movant or any other purchaser at Sheriff's Sale to take any legal or consensual action for enforcement of its right to possession of, or title to, said premises; and it is further ORDERED that should Bankruptcy No. 1 04-04844 MDF subsequently be dismissed, Debtor John E. Barton a/k/a John Barton is barred from filing or refiling bankruptcy, either singularly or jointly, for One-Hundred and Eighty (180) Days from the date of dismissal without further leave of Court; and it is further ORDERED that any future bankruptcy cases filed by Debtor, either singularly or jointly, within one hundred eighty (180) days of the date of this Court Order, without first seeking leave of Court, will not stay any actions taken by Movant or any other purchaser at Sheriff's Sale from proceeding with any legal or consensual actions necessary for enforcement of its right to possession of, or title to, said premises; and it is further cc: ORDERED that Rule 4001 (a) (3) is not applicable and GE Capital Mortgage Services, Inc., may immediately enforce and implement this Order granting relief from the automatic stay. Date: October 8, 2004 -9"-Bankruplo 'Judge ~JoI~ This electronic order is signed and filed on the same date. Judith T. Romano, Esquire Suite 1400 One Penn Center at Suburban Station Philadelphia, PA 19103 Steven P. Miner, Esquire 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 Charles J. DeHart, III, Esquire(Trustee) P.O. Box 410 Hummelstown, PA 17036 John E. Barton 55 Gutshall Road Shippensburg, PA 17257 FEDERMAN PHELAN, LLP By: Frank Federman, Esquire Atty. I.D. No.: 12248 One Penn Center at Suburban Station Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 Attorney for Plaintiff GE CAPITAL MORTGAGE SERVICES, INC. Plaintiff VS, JOHN BARTON OR OCCUPANTS Defendant(s) Com~ of Common Pleas CUMBERLAND County No. 03-5194 PRAECIPE TO WITHDRAW COMPLAINT, VACATE JUDGMENT AND DISCONTINUE AND END ACTION~ WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly withdraw the complaint filed in the instant matter, without prejudice, vacate the judgment and mark this case discontinued and ended, upon payment of your costs only. Date Fr/o/nk Federman / Attorney fo:r Plaintiff lbil-,' ~~ r-:.:~_.-: [~rL" iU,- ("") .... CO = 3:-" = co~ -= ::z ~'Tl(J = ?2rr1 <: ;"'0 I ~-., W -..... o:r:: J> ..;""),,-, ot/) c:r:: ~ z,.,., .....;>;:1 c:tl :<- ...., r:t:1 :;g...., ~ , ~ 0; > - ;';2 "" - .-. ." ~ - - "1- > ""''''d-''''""'O ::g ~, ' N= Q\:Z: a ~t~~~~ ~gJ::;: ~~' ~e ~ ~ ~ "H - 1= n~ =: I-,j G) ~ '-I""" ..q ~ . l-d c:: ~ 0>. ~ ~~~j g~al'l~ i~~~ :> t'I:~ n~ t" ==Cjj'\ t;; ~ rn t -. i':l - '" ~ iii' .~~~~~: " !~~ ~ ~.- - "".:>' ;-....1 -:.;- .1:-...~rd 7",' ~ ~..... 'iN _ i+:"'tIl ~ I I :::-11l - I d- tn ., . -.J ' HI-oi; tHi ~ .....l5~ ~ 2: ' o ~ q ,.p- o o ~ - - ~.. -. ~ ., , , , 04 i':l0 0Si! n (')'" ~?;; ~Cl HZ ff) G1 l'l n I'd H H ~ :;:: o i':l H G1 :>- G1 l'l ;,.- ~- -~ o '" 'j 1ft i-' '" .,.. i ~ ~ - - "" ~ ~. ~ -'"' - - :;:: i '. .:;, - - ;:- ~- - ... - .- "" "" -, - 2:; ~- :/:.-- ~:= - - <> >:J: ~- :;;;... ". ~ - . N "- 0 c , , . .- , ~N .0' '--J ff) '" i':l <: H n '" ff) By :r::...-e of ,h..~ '.:-nr~ .:on :..=:e _____________________cray .}{ ___________________________________. :9______ I ~"u.sed :he Wl t.~in :1~-ne-d _________________~~______________________________________________________. :0 ,0 '0 ~ ,p: :.... H Z n i-t:1.':e flOi3emon ;:;.f :~~ ?rt""!:'.i:$e-!. ci~~ '.,,-ir;l ::~.~ ..lOCUt-'::~~r:c:e_... l..'C -- -- .. - --------------------------~_._----- .l'J.x.H._QL_~.9ssessionl returned STAYED, per atty this date --------------------------------------------------------------~-----------------------_. Sheriff's Return Advance Costs: 150.00 -U-6c1<-eti'fl~--- n--TS~UO - - -~- ---- -- --------- -- __h - - ---- u ---SheT'if-f J -s-{;-us-t-s - -- - 5-4- ; 8% - - - - --- Surcharge 20.00 95 12 -~o~E1re--------.~r~{r8-----------------------.~---------------------------------------:---------. Frothy 1.00 -M-:i.13i5....--- __ ____1.4 .B.O_ __uun u_________ _ _ _. m_ u ___ _ __.RefJJo.p_eo_ _t9_ _~.uy_ _QILl2J.01.J Oil :J4.88 ...,.... .\.))'.".:::~. Ie, , J.." ' i" - "':...)r~ .L.~~ f=';O-5C::~~ :.) :~~'."""- -'-" .~IS I ' . , ~., ,- .~.- -." -- ---.----- ----- i:", "i _I1J'u:~________n_____h__h. ;?;{iMY- _._______._~_ J. ~ ,r: \.. '.., A rd1:: .~....---fJ::.'-""'~--,-,'I--'~........-...;"....> P xlt~ono[:u:_. . --~~~ lt1ltL:~- ~-----.."--~----..\-. ,'" Ll' (" ", ::e... ,. ,/ ~, ..,{(ULd-'-"'__u__4-_l3r.~-M~m-- \.II\) (/, 'i ~D3", ,€.tA 6U:ly 'IV KlT U1' POSSESSIO:.'<- Ejecrmenr PToceedings PRe p 3i60 - 3165 ere; GE CAPITAL MORTGAGE SERVIcE!>, INC. _ -------------------------------------------- G- ~-E: eOl-" --: 0'" CO'.C[O'i ?li:.\,:: O? Cl,,[3E3.L...:-.u COl:,TY, ?~':,-S!1.V_-L"T\ " _ o. __J!.~:2!J!>_ T= 2D______ ------~------------------------------------- ;';0 __h__h___________________.____ 20 7= ____._ ...."3_~ C0'5t3 JOHN BARTON OR OCCUP~TS _\::'v. _______u__________.___________ .$__267...1.4.__ -------------------------------------------- P~'~f ;. _____________________________ 'S___________ --------~----------------------------------- ?~,~v. ____________________._________ .$_____1~9~___ --------------------------------------------------- --------------------------~----------------------- CO~C.lO);wE.U. TH OF PE..":'-SY1.V.-LYL-\: COC:-.TY OF Ct:\[5E...~-L"-:O: Tv :1:e She.~: vi __~"h_m:~!:~~_~~!:~.?___________ Cvu,,::;, Pe-:t,":l. :.1' To sa:cisiy :ee iud~~: :0:- ?~on iLl =-~e .leo ':e :n:l:-:~=- .:O~ ~:e ::.:~~:~::. :0 .:.e::'..e= ?O'S~s.ion oi ~e ~oilo-...r..=."S c~-:be::i prope:-::; .:0: . ----------------------------------.--- ---------------------------------------------.----------------- GE CAPITAL MORTGAGE SERVICES, INC. ------------------------------------------------------------------------------------------ ?!.:U:1C:: ) be::,g: .P:=i= J:S .0'''''....): 55 GUTSHALL ROAD, SHIPPENSBURG, PA 17257 TRUE COpy FROM RECORD " In Testimony whereof, I here unto set my haOd and tile seaJ,Of said Court at Carlisle, Pa. . '--- T~l,,~~ ~:~. ~ . honotary. :~: T~ ~-::si-.: :.~~ w!~$ ~:..:..-..st d:ed~end.:w( .:s. you 1.R direc:d. ro ~::-<: '':'~c:. J.::y ?["'j~=::; fA -.. ~~e:::. a.:!.~:: . i .l.Cci se:!::';'j :t~~ .\JC :..~:.. :;:t..:._.::.... :::.e'f~:,;1. D. November 2, 2004 ~C~ ____________________________~_____ ,SE..\L ) - . .curtis R. Long _ _________. .--------------------------------- --- --- . p~cl:Oc.oc_..y. C=r:-_-::Ct"( p~~ Cc-u::-: vi Cu=Oe~.J:::c CvU!'C?-, P-=:1., ~ 0-'>11 _ [} 77zm/M<L ~ . ept:C"!