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HomeMy WebLinkAbout07-6180 PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 163828 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 3476 STATEVIEW BLVD FORT MILL, SC 29715 Plaintiff V. ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 Defendant ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. 07 - to 180 Civi I Term CUMBERLAND COUNTY CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 163828 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9108 File #: 163828 IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 et seq. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS File #: 163828 COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL ESTATE. File #: 163828 Plaintiff is DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 3476 STATEVIEW BLVD FORT MILL, SC 29715 2. The name(s) and last known address(es) of the Defendant(s) are: ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 09/18/2006 mortgagor(s) made, executed, and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS A NOMINEE FOR DECISION ONE MORTGAGE COMPANY, LLC which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Book: 1967, Page: 345. PLAINTIFF is now the legal owner of the mortgage and is in the process of formalizing an assignment of same. The mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 4. The premises subject to said mortgage is described as attached. 5. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 07/01/2007 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. File #: 163828 6. The following amounts are due on the mortgage: Principal Balance $105,518.53 Interest $3,634.98 06/01/2007 through 10/ 19/2007 (Per Diem $25.78) Attorney's Fees $1,250.00 Cumulative Late Charges $0.00 09/18/2006 to 10/19/2007 Cost of Suit and Title Search 550.00 Subtotal $110,953.51 Escrow Credit $0.00 Deficit $171.88 Subtotal 171.88 TOTAL $111,125.39 7 8 If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. Plaintiff is not seeking a judgment of personal liability (or an in personam judgment) against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. File #: 163828 9. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 10. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $111,125.39, together with interest from 10/19/2007 at the rate of $25.78 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. PHELAN HALLINAN & SCHMIEG LLP 4&? By: /s/Francis S. Halli C LAWRENCE T. PHELAN, ESQUIRE DANIEL G. SCHMIEG, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff File #: 163828 LEGAL DESCRIPTION ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest corner of Second (formerly called Cherry Alley) and Hosler Avenue; thence extending westwardly 63 feet along the northern line of Bosler Avenue to a point; thence at right angles to Hosler Avenue along the eastern line of property now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. Being designated as Tax Parcel I.D. Number: 12-21-0265-178 215 BOSLER AVENUE, LEMOYNE, PA 17043 File #: 163828 FRANCIS S. HALLINAN, ESQUIRE hereby states that he is attorney for PLAINTIFF in this matter, that Plaintiff is outside the jurisdiction of the court and or the Verification could not be obtained within the time allowed for the filing on the pleading, that he is authorized to make this verification pursuant to Pa. R. C. P. 1024 ( c ) and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are based upon information supplied by Plaintiff and are true and correct to the best of his knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unworn falsification to authorities. FRANCIS S. HALLINAN, ESQUIRE Attorney for Plaintiff DATE: 4 -ZO 11'9 p, -611, 000 -? W Q d Q -4 ` . r7i T+ ZE; ( O PHELAN HALLINAN & SCHMIEG, LLP BY: Francis S. Hallinan, Esquire Identification No. 62695 Attorney For Plaintiff One Penn Center at Suburban Station Suite 1400 Philadelphia, PA 19103 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, COURT OF COMMON PLEAS AS TRUSTE FOR MORGAN STANLEY MORTGAGE CIVIL DIVISION PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 CUMBERLAND COUNTY V. NO. 07-6180-CIVIL TERM ROBERT E. FRANK, III PRAECIPE TO SUBSTITUTE VERIFICATION TO CIVIL ACTION COMPLAINT IN MORTGAGE FORECLOSURE TO THE PROTHONOTARY: Kindly substitute the attached verification for the verification originally filed with the complaint in the instant matter. Dated: xW File #: 163828 Phelan Hallinan and Schmieg, LLP r 1 By: - ` C Francis S. Hallinan, Esquire Lawrence T. Phelan, Esquire Daniel G. Schmieg, Esquire r t? PHELAN HALLINAN & SCHMIEG, LLP BY: Francis S. Hallinan, Esquire Identification No. 62695 Attorney For Plaintiff One Penn Center at Suburban Station Suite 1400 Philadelphia, PA 19103 215 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, COURT OF COMMON PLEAS AS TRUSTEE FOR MORGAN STANLEY MORTGAGE CIVIL DIVISION PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 CUMBERLAND COUNTY NO. 07-6180-CIVIL TERM V. ROBERT E. FRANK, III CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Plaintiff's Praecipe to Substitute Verification was sent via first class mail to the following on the date listed below: ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 Dated: l FRANCIS S. HALLINAN, ESQUIRE LAWRENCE T. PHELAN, ESQUIRE DANIEL S. SCHMIEG, ESQUIRE Attorney for Plaintiff M ' 440,w Ab VERIFICATION China Brown hereby states that he/she is Vice President of Loan Documentation of WELLS FARGO FINANCIAL INC., servicing agent for Plaintiff in this matter, that he/she is authorized to take this Verification, and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are true and correct to the best of his/her knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unworn falsification to authorities. Name: Kina Brown DATE: October 23, 2007 Title: Loan: 1127125613 Vice President of Loan Documentation Company: WELLS FARGO FINANCIAL INC. File #: 163828 cn -L SHERIFF'S RETURN - REGULAR CASE NO: 2007-06180 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DEUTSCHE BANK NATIONAL TRUST VS FRANK ROBERT E III ROBERT BITNER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon FRANK RnRRRT R TTT the DEFENDANT , at 1835:00 HOURS, on the 26th day of October , 2007 at 215 BOSLER AVENUE LEMOYNE, PA 17043 by handing to a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge _r ??q I IJ07 Sworn and Subscibed to before me this of So Answers: 18.00 15 3 6 00 10.00 R. Thomas Kline .00 43.36 11/27/2007 PHELAN HALLINAN SCHMIEG By day Deputy Sheriff A.D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-06180 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DEUTSCHE BANK NATIONAL TRUST VS FRANK ROBERT E III R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: FRANK ROBERT E III but was unable to locate Him deputized the sheriff of YORK in his bailiwick. He therefore serve the within COMPLAINT - MORT FORE County, Pennsylvania, to On November 27th , 2007 , this office was in receipt of the attached return from YORK Sheriff's Costs: So answers a Docketing 6.00 -- ' ?? Out of County 9.00 Surcharge 10.00 R. Thomas Klin(e Dep York County 62.66 Sheriff of Cumberland County Postage .75 88.41 11/27/2007 PHELAN HALLINAN SCHMIEG Sworn and subscribe to before me this day of A. D. COUNTY OF YORK OFFICE OF THE SHERIFF 45 N. GEORGE ST., YORK, PA 17401 SERVICE CALL. (717) 771-9601 SHERIFF SERVICE IN TfRICTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYKE ONLY LSE 1 THRU 12 DO NOT DETACH ANY COPES 1. PLAINTIFF/S/ DEUTSCHE BANK NATIONAL. TRUST.... 2 COU?t NL?frJW6 U // (6? j1?jUU C1V11 3. DEFENDANT/SI ROBERT E. FRANK, III 1. IYPt OF VVKI I UK l.Umr-L.M1n I MORTGAGE FORECLOk&' SERVE 5 NAME OF INDIVIDUAL COMPANY. CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED. UK SULU ROBERT E. FRANK, III 6. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO, CITY, BORO. TWP. STATE AND ZIP DE) AT 507 ROSS AVENUE, NEW CUMBERLAND, PA 17070 ,A'AI 7. INDICATE SERVICE' PERSONAL U PERSON IN CHARGE U DEPUTIZE U CERT MAIL U 1ST CLASS MAIL U POSTED U OTHER NOW October 23 2007 I, SHERIFF COUNTY, PA, do hereby deputize the sheriff of York COUNTY to execute this Writ return there . ding to law. This deputization being made at the request and risk of the plaintiff., SHERIFF OF VOMG CO TY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE Please mail return of service to Cmberland County Sheriff. Thank you. ATTEMPT SERVICE 3 TIMES AND ONCE AFTER 6PM ADV FEE PD BY LAW FIRM NOTE: ONLY APPUCABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destnrcion, or removal of any property before sheriffs sale thereof. 9. TYPE NAME and ADDRESS of ATTORNEY / ORIGINATOR and SIGNAT 10. TELEPHONE NUMBER 11 DATE FILED FRANCIS S. HALLINAN.ESO. - 215-563-7000 10/22/0,7 12 area must be com leted notice is to be mailed) PER POST OFFICE CHECK, NOT KNOWN AT ADDRESS GIVEN 23. Advance Costs 24 Service Costs 25. N/F 26. Mileage 127 Postage 28. Sub Total 29. Pound 30 Notary 31. Surchg. 32. Tot Costs 33 Costs Due Refund Check No. i00.00 1 16,08 ?C? X13-b ?o D Ip - 7° 0514 34. Foreign County Costs 35. Advance Costs 36 Service Costs 37 Notary Cert 38. Mileage/Postage/Noll Found 39. Total Costs 40. Costs Due r Refund 41. AFFIRMED and subscribed to before e this 4,T H- 4. Signature of 42. day of NOV 20 _ O 73 p. Sheriff 46. Signature of York Y ?- County Sheriff t AL SEAL TARP PUBLIC FOR: WILLI?, LISA ^CIT ?,ORK COUNTY 48. Signature of Foreign -S AUG. 12, 2009 County Sheriff 50. 1 A OF AUTHORITY AND TITLE 45. DATE - .GATE 11/14/07 49 DATE 51 DATE RECEIVED INBIMMMSA&Mmdy 2. PINK -Attorney 3. CANARY - SheriRs Office 4. BLUE - Sheriffs Office CUMBERLAND COUNTY SHERIFF SPACE SLOW FOR USE OF THE SHERIFF - DO NOT WRITE BELOW THIS L 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15 Expiration/Hearing Date or complaint as indigted above. LT M M C G I L L 1-0/2 5/07 11/21/07 16. HOW SERVED: PERSONAL( ) RESIDENCE ( ) POSTED( ) POE ( ) SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BELOW 17. 1 herebv certify and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) C'J y •. I .,1 PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 Attorney for Plaintiff ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 3476 STATEVIEW BLVD FORT MILL,SC 29715 CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 07-6180- CIVIL TERM Plaintiff, V. ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 Defendant(s). PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter an in rem judgment in favor of the Plaintiff and against ROBERT E. FRANK, III and, Defendant(s) for failure to file an Answer to Plaintiffs Complaint within 20 days from service thereof and for Foreclosure and Sale of the mortgaged premises, and assess Plaintiffs damages as follows: As set forth in Complaint Interest from 10/20/07 to 1/11/08 TOTAL $111,125.39 $2,165.52 $113,290.91 I hereby certify that (1) the addresses of the Plaintiff and Defendant(s) are as shown above, and (2) that notice has been given in accordance with Rule 237. 1, copy attached. DANIEL G. SCHMIEG, ESQUIRE Attorney for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: d14 /08 ? PROTHY 163828 PHELAN HALLINAN & SCHMIEG, LLP By: Lawrence T. Phelan, Esq., Id. No. 32227 ATTORNEY FOR PLAINTIFF Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Philadelphia, PA 19103 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, : COURT OF COMMON PLEAS AS TRUSTEE FR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 : CIVIL DIVISION Plaintiff CUMBERLAND COUNTY Vs. NO. 07-6180-CIVIL TERM ROBERT E. FRANK, III Defendants TO: ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 DATE OF NOTICE: DECEMBER 18, 2007 THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT THE INDEBTEDNESS REFERRED TO HEREIN, AND ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE.IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY AS ENFORCEMENT OF LIEN AGAINST PROPERTY. IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (800)990-9108 FRANCIS S. HAL INAN, ESQUIRE Attorneys for Plaintiff PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 ATTORNEY FOR PLAINTIFF ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN CUMBERLAND COUNTY STANLEY MORTGAGE PASS-THROUGH COURT OF COMMON PLEAS CERTIFICATES, SERIES 2007-HE2 3476 STATEVIEW BLVD CIVIL DIVISION NO. 07-6180- CIVIL TERM Plaintiff, V. ROBERT E. FRANK, III Defendant(s). VERIFICATION OF NON-MILITARY SERVICE DANIEL G. SCHMIEG, ESQUIRE, hereby verifies that he is attorney for the Plaintiff in the above-captioned matter, and that on information and belief, he has knowledge of the following facts, to wit: (a) that the defendant(s) is/are not in the Military or Naval Service of the United States or its Allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act of Congress of 1940, as amended. (b) that defendant ROBERT E. FRANK, III is over 18 years of age and resides at, 215 BOSLER AVENUE, LEMOYNE, PA 17043. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. DANIEL G. SCHMIEG, ESQUIRE Attorney for Plaintiff R oLO r -90 '?' VIC = c n 1 (Rule of Civil Procedure No. 236) - Revised IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 3476 STATEVIEW BLVD Plaintiff, V. ROBERT E. FRANK, III CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 07-6180- CIVIL TERM Defendant(s). 1_1??- ALt-x DANIEL G. SCHMIEG, ESQUIRE Attorney for Plaintiff ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 "THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY." Notice is given that a Judgment in the above-captioned matter has been entered against you on -Jan 1 200 By: Z' ?06 If you have any questions concerning this matter, please contact: 4, CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 PRAECIPE FOR WRIT OF EXECUTION - (MORTGAGE FORECLOSURE) P.R.C.P.3180-3183 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 No. 07-6180 CIVIL TERM Plaintiff, V. ROBERT E. FRANK, III Defendant(s). TO THE DIRECTOR OF THE OFFICE OF THE PROTHONOTARY: Issue writ of execution in the above matter: Amount Due Interest from 1/12/08 TO 6/11/08 (per diem -$18.62) Add'1 Costs TOTAL $113,290.91 $2,830.24 and Costs $2,231.50 $118,352.65 A A-41 1-40 DANIEL G. SCHMIEG, ESQUIRE One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 Attorney for Plaintiff Note: Please attach description of property.No. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of ',a representative of the plaintiff at the Sheriff's Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. 163828 d V d? A OW N c? zo? w dw o a F °z w z?? W ? 00 U r w ?zAz ?dOU Od ? U ">4? ? y Wa F ?V A ?O U O Ur .Q d O b' h i 0-4 w F W O a R) 0 a 0 U ? v o? F ? W o V a ?00W OD 11 > w M O d a w a z a N d e? --rr Cf !-F! F ° ?c b N C a I"T'7 Cx3 O c:) C) 00 N 00 M n c I I ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest corner of Second (formerly called Cherry Alley) and Hosler Avenue; thence extending westwardly 63 feet along the northern line of Bosler Avenue to a point; thence at right angles to Hosler Avenue along the eastern line of property now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. Being designated as Tax Parcel I.D. Number: 12-21-0265-178 TITLE TO SAID PREMISES IS VESTED IN Robert E. Frank, III, a single man, by Deed from George E. Homerich and Gayle D. Homerich, husband and wife, dated 09/18/2006, recorded 09/26/2006, in Deed Book 276, page 4027. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, V. ROBERT E. FRANK, III Defendant(s). CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 07-61804 CIVIL TERM AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. l) DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUST E FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SE ES 2007-HE2, Plaintiff in the above action, by its attorney, DANIEL G. SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at ,215 BOSLER AVENUE, LEMOYNE, PA 17043. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if laddress cannot be reasonably ascertained, please indicate) ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 2. Name and address of Defendant(s) in the judgment: Same as above 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Last Known Address (if address cannot be reasonably ascertainedp please indicate) None 1 4. Name and address of last recorded holder of every mortgage of record: George E. Homerich and Gayle D. Homerich, 312 Sunset Drive, New husband and wife Cumberland, PA 17070 None 5. Name and address of every other person who has any record lien on the property: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) Tenant/Occupant Domestic Relations of Cumberland County Commonwealth of Pennsylvania Department of Welfare 215 BOSLER AVENUE LEMOYNE, PA 11043 13 North Hanover Street Carlisle, PA 17013 PO Box 2675 Harrisburg, PA 17105 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. • January 10, 2008 DATE DANIEL G. SCHMIEG ESQUIRE Attorney for Plaintiff (? r,,,J C. w a ..?,, A . t-?-; .° ?- ? ?"' ,f Y .. ?`_ . ? *_? f `?? ? ..._ ..,y I DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, V. ROBERT E. FRANK, III Defendant(s). CUMBERLAND COUNTY No. 07-6180- CIVIL TERM January 10, 2008 TO: ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 * *THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLYRECEIVED A DISCHARGE IN BANKRUPTCYAND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE ANA TTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. Your house (real estate) at, 215 BOSLER AVENUE, LEMOME, PA 17043, is scheduled to be sold at the Sheriffs Sale on JUNE 11, 2008 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $113,290.91 obtained by DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTS FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SE ES 2007-HE2 (the mortgagee) against you. In the event the sale is continued, an announcement will be made at said sale in compliance with Pa.R.C.P., Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriffs Sale, you must take immediate action: 1. The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: (215) 563-7000. 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause. 3. You may also be able to stop the sale through other legal proceedings. You may need an attorney to assert your rights. The sooner you contact one, the more chance you will have of stopping the sale. (See notice on page two on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND XOU HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1. If the Sheriffs Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling (215) 563-7000. 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property. 3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find out if this has happened, you may call (717) 240-6390. 4. If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened. 5. You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A schedule of distribution of the money bid for your house will be filed by the Sheriff within 30 days of the sale. This schedule will state who will be receiving that money. The money will bel paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is,,wrong) are filed with the Sheriff within ten (10) days after the distribution is filed. 7. You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IMPORTANT NOTICE: This property is sold at the direction of the, plaintiff. It may not be sold in the absence of a representative of the plaintiff at the Sheriff's S le. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. CUMBERLAND COUNTY ATTORNEY REF CUMBERLAND COUNTY BAR ASSOCIA' 2 LIBERTY AVENUE r ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest corner If Second (formerly called Cherry Alley) and Hosler Avenue; thence extending w stwardly 63 feet along the northern line of Bosler Avenue to a point; thence at right angles to Hosler Avenue along the eastern line of property now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. Being designated as Tax Parcel I.D. Number: 12-21-0265-178 TITLE TO SAID PREMISES IS VESTED IN Robert E. Frank, III, a single man, by Deed from George E. Homerich and Gayle D. Homerich, husband and wife, dated 09/18/2006,1 recorded 09/26/2006, in Deed Book 276, page 4027. PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 ATTORNEY FOR PLAINTIFF ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN CUMBERLAND COUNTY STANLEY MORTGAGE PASS-THROUGH COURT OF COMMON PLEAS CERTIFICATES, SERIES 2007-HE2 CIVIL DIVISION Plaintiff, V. NO. 07-61180- CIVIL TERM ROBERT E. FRANK, III Defendant(s). CERTIFICATION DANIEL G. SCHMIEG, ESQUIRE, hereby verifies that he is attorney for the Plaintiff in the above-captioned matter, and that the premises are not subject to the provisions of Act 91 because it is: () an FHA mortgage ( ) non-owner occupied ( ) vacant (X) Act 91 procedures have been fulfilled This certification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DANIEL G. SCHMIEG, ESQ Attorney for Plaintiff n ? O 2 tTi a WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) NO 07-61$0 Civil COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due DEUTSCHE BANK NATIONAL TRUST COMPANY, as Turstee for MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2, Plaintiff (s) From ROBERT E. FRANK, III (1) You are directed to levy upon the property of the defendant (s)and to s?ll SEE LEGAL DESCRIPTION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession i of GARNISHEE(S) as follows: ar__?1i?III'shee(s) is enjoined from and to notify the garnishee(s) that: (a) an attachment has been issued; O b the g9 paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof, (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $113,290.91 L.L.$ 0.50 Interest from 1/12/08 to 6/11/08 (per diem - $18.62) -- $2,830.24 and Costs Atty's Comm % Due Prothy $2.00 Arty Paid $250.77 Other Costs $2,231.50 Plaintiff Paid Date: 2/11/08 Prothonotary,-— (Seal) By: Deputy REQUESTING PARTY: Name DANIEL G. SCHMIEG, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, LLP ONE PENN CENTER AT SUBURBAN STATION 1617 JFK BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 62205 l DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, V. ROBERT E. FRANK, III Defendant(s). DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRITSTER FOR MORGAN STANLEY MORTGAGF. PASS-THROUGH CERTIFICATFS„ SERIES 2017-HF.2, Plaintiff in the above action, by its attorney, DANIEL G. SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at ,215 HOSTXR AVFNITF, LEMOYNE, PA 1704-3 _ AMENDED AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. 1) I . Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) Commonwealth of Pennsylvania Bureau of Individual Tax Inheritance Tax Division Internal Revenue Service Federated Investors Tower Department of Public Welfare TPL Casualty Unit Estate Recovery Program CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 07-6180- CIVIL TERM 6th Floor, Strawberry Sq., Dept. 28061 Harrisburg, PA 17128 13th Floor, Suite 1300 1001 Liberty Avenue Pittsburgh, PA 15222 P.O. Box 8486 Willow Oak Building Harrisburg, PA 17105 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. ° D May 1, 2009 DATE DANIEL G. SCHMIEG, ESQU Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DEUTSCHE BANK NATIONAL TRUST COMPANY, AS CUMBERLAND COUNTY TRUSTEE FOR MORGAN STANLEY MORTGAGE COURT OF COMMON PLEAS PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff CIVIL DIVISION V. NO. 07-6180- CIVIL TERM ROBERT E. FRANK, III . Defendant(s) AFFIDAVIT OF SERVICE PURSUANT TO RULE 3129 COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND COUNTY ) SS: Plaintiff in the above action sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at: 215 BOST ER AVF.NT IF. I EMOYNE, PA 17043. As required by Pa. R.C.P. 3129.2(a) Notice of Sale has been given to Lienholders in the manner required by Pa. R.C.P. 3129.2(c) on each of the persons or parties named, at that address set forth on the Affidavit No. 2 (previously filed) and/or Amended Affidavit No. 2 on the date indicated. A copy of the Certificate of Mailing (Form 3817) and/or Certified Mail Return Receipt stamped by the U.S. Postal Service is attached for each notice. P ? DANIEL G. SCHMIE , ESQUIRE Attorney for Plaintiff Date: May 1, 2008 IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not he snid in h absence of a representative of the niaintiff at the Sherifrg Cal The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. 163828 £ 0 ?. 800 09 dam W 0 °o a d. a u c . 1 Uwx ac? °a ? L Q ^C sb? 5 L 3000 Z Z L 83- dIZ VVoa3 0311tlW 1 0 L08 LZb000 INL Z w I 3MO V AINlld O 6 72,02 ® C ' 8 7 T a O 4 g 3 O r. Gb '. I U w t-- ° ...1 >s ?s N u S o c O a? D c 0 w ° ow -N ? o ?y g > o y ? ? O z w a N ?' p4 0 g X11 FF?y y ? o ,ba ? wa e m v A o o ?'' E - ?x > x = w 5 N 4? n k A w a c g O LL N N ? ?C 0 C4 3 Q 3 v Q =0 0 . % = ? U 3 O 'orb 6 ? uj N E c di W og E ? n 3 w z? s A G? O U F O$ U ?D a?+ ?+ S P, 04 d ALL, N 04 0 M Z O C?4 F a E ?B Z a ? •-+ N M ? Y1 ?D t? 00 O? O ? ® F ft. ra --Oct" ? rn ?r VO ;? is PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff VS. ROBERT E. FRANK, III Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 07-6180- CIVIL TERM PLAINTIFF'S MOTION TO REASSESS DAMAGES Plaintiff, by its Attorney, Michele M. Bradford, Esquire, moves the Court to direct the Prothonotary to amend the judgment in this matter, and in support thereof avers the following: 1. Plaintiff commenced this foreclosure action by filing a Complaint on October 22, 2007, a true and correct copy of which is attached hereto, made part hereof, and marked as Exhibit "A„ 2. Judgment was entered on January 14, 2008 in the amount of $113,290.91. A true and correct copy of the praecipe for judgment is attached hereto, made part hereof, and marked as Exhibit "B". Pursuant to Pennsylvania Rule of Civil Procedure 1037(b)(1), a default judgment containing a dollar amount must be entered for the amount claimed in the complaint and any item which can be calculated from the complaint, i.e. bringing the interest current. However, new items cannot be added at the time of entry of the judgment. 4. The Property is listed for Sheriffs Sale on June 11, 2008. Additional sums have been incurred or expended on Defendant's behalf since the Complaint was filed and Defendant has been given credit for any payments that have been made since the judgment. The amount of damages should now read as follows: Principal Balance $105,518.53 Interest Through June 11, 2008 $9,706.85 Per Diem $25.84 Late Charges $0.00 Legal fees $1,735.00 Cost of Suit and Title $1,364.00 Sheriffs Sale Costs $0.00 Property Inspections/ Property Preservation $90.00 Appraisal/Brokers Price Opinion $190.00 Mortgage Insurance Premium / $0.00 Private Mortgage Insurance Non Sufficient Funds Charge $0.00 Suspense/Misc. Credits ($0.00) Escrow Deficit $605.91 TOTAL $119,210.29 6. The judgment formerly entered is insufficient to satisfy the amounts due on the Mortgage. 7. Under the terms of the Mortgage and Pennsylvania law, Plaintiff is entitled to inclusion of the figures set forth above in the amount of judgment against the Defendant. Plaintiff's foreclosure judgment is in rem only and does not include personal liability, as addressed in Plaintiff's attached brief. 9. In accordance with Cumberland County Local Rule 208.3(9), Plaintiff sent a copy of its proposed Motion to Reassess Damages and Order to the Defendant on May 2, 2008 and requested the Defendant's concurrence. Plaintiff did not receive any response from the Defendant. A true and correct copy of Plaintiff's letter pursuant to Local Rule 208.3(9) is attached hereto, made part hereof, and marked as Exhibit "C". 10. No judge has previously entered a ruling in this case. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. DATE: S1 i ? 6? , LLP By: MBr?addfor9cEsquigre the Attorney for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff VS. ROBERT E. FRANK, III Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 07-6180- CIVIL TERM MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REASSESS DAMAGES 1. BACKGROUND OF CASE ROBERT E. FRANK, III executed a Promissory Note agreeing to pay principal, interest, late charges, real estate taxes, hazard insurance premiums, and mortgage insurance premiums as these sums became due. Plaintiffs Note was secured by a Mortgage on the Property located at 215 BOSLER AVENUE, LEMOYNE, PA 17043. The Mortgage indicates that in the event a default in the mortgage, Plaintiff may advance any necessary sums, including taxes, insurance, and other items, in order to protect the security of the Mortgage. In the instant case, Defendant defaulted under the Mortgage by failing to tender numerous, promised monthly mortgage payments. Accordingly, after it was clear that the default would not be cured, Plaintiff commenced the instant mortgage foreclosure action. Judgment was subsequently entered by the Court, and the Property is currently scheduled for Sheriffs Sale. Because of the excessive period of time between the initiation of the mortgage foreclosure action, the entry of judgment and the Sheriffs Sale date, damages as previously assessed are outdated and need to be adjusted to include current interest, real estate taxes, insurance premiums, costs of collection, and other expenses which Plaintiff has been obligated to pay under the Mortgage in order to protect its interests. It is also appropriate to give Defendant credit for monthly payments tendered through bankruptcy, if any. II. LEGAL ARGUMENT TO AMEND PLAINTIFF'S IN REM JUDGMENT It is settled law in Pennsylvania that the Court may exercise its equitable powers to control the enforcement of a judgment and to grant any relief until that judgment is satisfied. 20 P.L.E., Judgments § 191. Stephenson v. Butts, 187 Pa.Super. 55, 59, 142 A.2d 319, 321 (1958). Chase Home Mortgage Corporation of the Southwest v. Good, 537 A.2d 22, 24 (Pa.Super. 1988). The Pennsylvania Superior Court has repeatedly cited the right of a foreclosing creditor to amend its judgment prior to the Sheriffs sale. Nationsbanc Mortgage Corp. v. Grillo, 827 A.2d 489 (Pa.Super. 2003). Morgan Guaranty Trust Co. ofN.Y. vs. Mowl, 705 A.2d 923 (Pa. Super. 1998). Union National Bank of Pittsburgh v. Ciongoli, 407 Pa. Super. 171, 595 A.2d 179 (1991). The Supreme Court of Pennsylvania recognized in Landau v. Western Pa. Nat. Bank, 445 Pa. 117, 282 A.2d 335 (1971), that the debt owed on a Mortgage is subject to change and, in fact, can be expected to change from day to day because the bank must advance sums in order to protect its collateral. Because a Mortgage lien is not extinguished until the debt is paid, Plaintiff must protect its collateral up until the date of sale. Beckman v. Altoona Trust Co., 332 Pa. 545, 2 A.2d 826 (1939). Because a judgment in mortgage foreclosure is strictly in rem, it is critical that the judgment reflect those amounts expended by the Plaintiff in protecting the property. Meco Reality Company v. Burns, 414 Pa. 495, 200 A.2d 335 (1971). Plaintiff submits that if it goes to sale without the requested amended judgment, and if there is competitive bidding for the Property, Plaintiff will suffer a significant loss in that it would not be able to recoup monies it advanced to protect its interests. Conversely, amending the in rem judgment will not be detrimental to Defendant as it imputes no personal liability. In B.C.Y. v. Bukovich, the Pennsylvania Superior Court reiterated its long standing rule that a Court has the inherent power to correct a judgment to conform to the facts of a case. 257 Pa. Super. 157, 390 A.2d 276 (1978). In the within case, the amount of the original judgment does not adequately reflect the additional sums due on the Mortgage due to Defendant's failure to tender payments during the foreclosure proceeding and the advances made by the mortgage company. The Mortgage plainly requires the mortgagor to tender to the mortgagee monthly payments of principal and interest until the Promissory Note accompanying the Mortgage is paid in full. The mortgagor is also required to remit to the mortgagee sufficient sums to pay monthly mortgage insurance premiums, fire insurance premiums, taxes and other assessments relating to the Property. The mortgagor has breached the terms of the Mortgage, and Plaintiff has been :forced to incur significant unjust financial losses on this loan. III. THE FORECLOSURE JUDGMENT IS IN REM ONLY The within case is a mortgage foreclosure action, the sole purpose of which is to take the mortgaged property to Sheriff s Sale. Pennsylvania law makes clear that an action in mortgage foreclosure is strictly in rem and does not include any personal liability. Newtown Village Partnership v. Kimmel, 424 Pa. Super 53, 55, 621 A.2d 1036, 1037 (1993). Signal Consumer Discount Company v. Babuscio, 257 Pa. Super 101, 109, 390 A.2d 266, 270 (1978). Pennsylvania Rule of Civil Procedure 1141(a). However, Pennsylvania law requires that the foreclosure action demand judgment for the amount due. Pa.R.C.P. 1147(6). The purpose of the dollar amount in the in rem judgment is for bidding at the Sheriffs Sale. In the event that a third party real estate speculator were to bid on the mortgaged property at the Sheriff s Sale and become the successful purchaser, Plaintiff would receive the amount of the in rem judgment from the Sheriff. IV. INTEREST The Mortgage clearly requires that the Defendant shall promptly pay when due the principal and interest due on the outstanding debt. In addition, the Note specifies the rate of interest to be charged until the debt is paid in full or otherwise satisfied. Specifically, interest from 30 days prior to the date of default through the date of the impending Sheriff's sale has been requested. V. TAXES AND INSURANCE If Plaintiff had not advanced monies for taxes and insurance throughout the foreclosure proceeding, Plaintiff would have risked loss of its collateral. If the Property were sold at a tax sale, Plaintiffs interest very well may be divested, and Plaintiff would sustain a complete loss on the outstanding balance due on the loan. If the Property were damaged in a fire, Plaintiff would not be able to obtain insurance proceeds to restore the Property if it did not pay the insurance premiums. Most importantly, the Mortgage specifically provides that the mortgagee may advance the monies for taxes and insurance and charge these payments against the escrow account. Plaintiff is simply seeking to have the Court enforce the terms of the Mortgage. VI. ATTORNEY'S FEES The amount of attorney's fees requested in the Motion to Reassess Damages is in accordance with the loan documents and Pennsylvania law. Pennsylvania Courts have long and repeatedly concluded that a request of five percent of the outstanding principal balance is reasonable and enforceable as an attorney's fee. Robinson v. Loomis, 51 Pa. 78 (1865); First Federal Savings and Loan Association v. Street Road Shopping Center, 68 D&C 2d 751, 755 (1974). In Federal Land Bank of Baltimore v. Fetner, the Superior Court held that an attorney's fee of ten percent of the original mortgage amount is not unconscionable. 410 A.2d 344 (Pa. Super. 1979). Recently, the Superior Court cited Fetner in confirming that an attorney's fee of ten percent included in the judgment in mortgage foreclosure action was reasonable. Citicorp v. Morrisville Hampton RealtX, 662 A.2d 1120 (Pa. Super. 1995). Importantly, Plaintiff recognizes this Honorable Court's equitable authority to set attorney's fees and costs as it deems reasonable. VII. CONCLUSION Therefore, Plaintiff respectfully submits that if the enforcement of its rights is delayed by legal proceedings, and such delays require the mortgagee to expend additional sums provided for by the Mortgage, then the expenses necessarily become part of the mortgagee's lien and should be included in the judgment. Plaintiff respectfully requests that this Honorable Court grant its Motion to Reassess Damages. Plaintiff submits that it has acted in good faith in maintaining the Property in accordance with the Mortgage, and has relied on terms of the Mortgage with the understanding that it would recover the monies it expended to protect its collateral. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. LLP DATE: v b By M hel M. Bradford, Attorney for Plaintiff Exhibit "A" PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 ONE PENN CENTER PLAZA, SUITE 1400 PFULADELPHIA, PA 19103 (215) 563-7000 163828 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 3476 STATEVIEW BLVD FORT MILL, SC 29715 Plaintiff V. ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 Defendant C= v -n G ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. 07- tot 80 aiv i 1 I`er'm CUMBERLAND COUNTY CIVUL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE rs?,' FILE 00py PLEASE RETURN [- L? F r y 1 [ -:? ?7'L;tC i E .kf??r ? c File N: 163828 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9108 File #: 163828 IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 et seq. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS Filc #: 163828 COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL ESTATE. File #: 163928 1. Plaintiff is DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 3476 STATEVIEW BLVD FORT MILL, SC 29715 2. The name(s) and last known address(es) of the Defendant(s) are: ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 09/18/2006 mortgagor(s) made, executed, and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS A NOMINEE FOR DECISION ONE MORTGAGE COMPANY, LLC which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Book: 1967, Wage: 345. PLAINTIFF is now the legal owner of the mortgage and is in the process of formalizing an assignment of same. The mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 4. The premises subject to said mortgage is described as attached. 5. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 07/01/2007 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. File #: 163828 6. The following amounts are due on the mortgage: Principal Balance $105,518.53 Interest $3,634.98 06/0112007 through 10/19/2007 (Per Diem $25.78) Attorney's Fees $1,250.00 Cumulative Late Charges $0.00 09/18/2006 to 10/19/2007 Cost of Suit and Title Search 550.00 Subtotal $110,953.51 Escrow Credit $0.00 Deficit $171.88 Subtotal 171.88 TOTAL $111,125.39 7 8. If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. Plaintiff is not seeking a judgment of personal liability (or an in Mrsonam judgment) against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. Fila #: 163828 9. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 10. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in bf! sum of $111,125.39, together with interest from 10/19/2007 at the rate of $25.78 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure, and sale of the mortgaged property. PHELAN HALLINAN & SCHWG LLP C By: /s/Francis S. Hall' LAWRENCE T. PHELAN, ESQUIRE DANIEL G. SCHMIEG, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff File #: 163828 LEGAL DESCRIPTION ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest corner of Second (formerly called Cherry Alley) and Hosler Avenue; thence extending westwardly 63 feet along the northern line of Bosler Avenue to a point; thence at right angles to Hosler Avenue along the eastern line of property now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. Being designated as Tax Parcel I.D. Number: 12-21-0265-178 215 BOSLER AVENUE, LEMOYNE, PA 17043 File #: 163828 FRANCIS S. HALLINAN, ESQUIRE hereby states that he is attorney for PLAINTIFF in this matter, that Plaintiff is outside the jurisdiction of the court and or the Verification could not be obtained within the time allowed for the filing on the pleading, that he is authorized to make this verification pursuant to Pa. R. C. P. 1024 ( c ) and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are based upon information supplied by Plaintiff and are true and correct to the best of his knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. See. 4904 relating to unswom falsification to authorities. '?' J Zk P- ? FRANCIS S. HALLINAN, ESQUIRE Attorney for Plaintiff DATE: - A11,9117 f "f Exhibit "B" PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 Attorney for Plaintiff ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 3476 STATEVIEW BLVD FORT MILL,SC 29715 V. Plaintiff, ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 AT.T y- COP', ,h CUAWRLAND COU#I? rte. COURT OF COMMOEA, CIVIL DIVISION NO. 07-6180- CIVILiM Q E, Tq Defendant(s). PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter an in rem judgment in favor of the Plaintiff and against ROBERT E. FRANK-,., III and ,Defendant(s) for failure to file an Answer to Plaintiffs Complaint within 20 days from service thereof and for Foreclosure and Sale of the mortgaged premises, and assess Plaintiffs damages as follows: As set forth in Complaint Interest from 10/20/07 to 1/11/08 TOTAL $111,125.39 $2,t65.52 $113,290.91 I hereby certify that (1) the addresses of the Plaintiff and Defendant(s) are as shown above, and (2) that notice has been given in accordance with Rule 237, 1, copy attached. DANIEL G SCHMIEG, ESQUIRE Attorney for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: 68 .rl?tA RO 163828 Exhibit "C" PHELAN HALLINAN & SCHMIEG, LLP 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103 (215) 563-7000 FAX#: (215) 563-3459 michele.bradford@fedphe.com Michele M. Bradford, Esquire Representing Lenders in Pennsylvania and New Jersey May 2, 2008 ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 RE: DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 vs. ROBERT E. FRANK, III Premises Address: 215 BOSLER AVENUE LEMOYNE, PA 17043 CUMBERLAND County CCP, No. 07-6180-CIVIL TERM Dear Defendant, Enclosed please find a true and correct copy of my proposed Motion to Reassess Damages and Order. In accordance with Cumberland County Local Rule 208.3(9), I am seeking your concurrence with the requested relief that is, increasing the amount of the judgment. Please respond to me within 5 days, by Wednesday, May 7, 2008. Should you have further questions or concerns, please do not hesitate to contact me. Otherwise, please be guided accordingly. For Phelan Hallinan 8I Schmieg, LLP Enclosure VERIFICATION Michele M. Bradford, Esquire, hereby states that she is the attorney for Plaintiff in this action, that she is authorized to make this verification, and that the statements made in the foregoing Motion to Reassess Damages are true and correct to the best of her knowledge, information and belief. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. DATE: S li S ie , LLP (tichhTelee M. Br dford, sq re Attorney for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire, Atty. I.D. No. 69849 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff vs. ROBERT E. FRANK, III Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 07-6180- CIVIL TERM CERTIFICATION OF SERVICE I hereby certify that true and correct copies of Plaintiffs Motion to Reassess Damages, and Brief in Support thereof, were sent to the following individuals on the date indicated below. ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 DATE: U? ROBERT E. FRANK, III 507 ROSS AVENUE NEW CUMBERLAND, PA 17070 el c . g, LLP By: ?- ford, Esquire Mi hel 7forPlaiintiff Attorne MAY a 02008 rr IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff vs. ROBERT E. FRANK, III Defendant Court of Common Pleas Civil Division CUMBERLAND County No. 07-6180- CIVIL TERM RULE AND NOW, this ,?,3-r'd day of 2008, a Rule is entered upon the Defendant to show cause why an Order should not be entered granting plaintiffs Motion to Reas Damages. sess Rule Returnable on the day of ?Zo. ? 2008, at 0'_ in Courtroom of the Cumberland County Courthouse, Carlisle, Pennsvlvania- Michele M. Bradford, Esquire V41helan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 TEL: (215) 563-7000 FAX: (215) 563-3459 michele-bradfOrd@,fedphe.com pA(OBERT E. FRANK, III J 507 ROSS AVENUE NEW CUMBERLAND, PA 17070 ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 163828 LLJ y C"Z N 47 C"i U PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff VS. ROBERT E. FRANK, III Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 07-6180- CIVIL TERM CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of our Motion to Reassess Damages noting a Rule Return date of June 10, 2008 was sent to the following individual on the date indicated below. ROBERT E. FRANK, III ROBERT E. FRANK, III 215 BOSLER AVENUE 507 ROSS AVENUE LEMOYNE, PA 17043 NEW CUMBERLAND, PA 17070 Mhe & hmieg, LLP DATE: By: M. Bradfor ,Esquire Attorney for Plaintiff C:? rv 1 4-1 C? AFFIDAVIT OF SERVICE PLAINTIFF DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 DEFENDANT(S) ROBERT E. FRANK, III SERVE ROBERT E. FRANK, III AT 215 BOSLER AVENUE LEMOYNE, PA 17043 CUMBERLAND COUNTY No. 07-6180- CIVIL TERM ACCT. #163828 Type of Action - Notice of Sheriff's Sale Sale Date: JUNE 11, 2008 SERVED Served and made known to 'ROWWT E?. PAOY, , M Defendant, on the 114 day of200f, at -3. 06' o'clock .m., at.0 15 Emc" <`NvF-, p? N>E Commonwealth of Pennsylvania, in the manner described below: _/Defendant personally served. Adult family member with whom Defendant(s) reside(s). Name and Relationship is _ Adult in charge of Defendant(s)'s residence who refused to give name or relationship. Manager/Clerk of place of lodging in which Defendant(s) reside(s). Agent or person in charge of Defendant(s)'s office or usual place of business. an officer of said Defendant(s)'s company. Other: Description: Age Height ? ?? Weight 1757 Race W Sex M Other I, Z i'uJ e-4 ! Vw41- a competent adult, being duly sworn according to law, depose and state that I personalty handed a true and correct copy of the Notice of Sheriff's Sale in the manner as set forth herein, issued in the captioned case on the date and at the address indicated above. Sworn to and subscribed before me this )J: day of - 200,. Notary., By: PL ASE A MPT SERVICE AT LEAST 3 TIMES. INDICATE DATES & TIMES OF SERVICE ATTEMPTED. THEODORE J. HARRIS NOT SERVED NOTARY PUBLIC On theSTATE O(j#rg)N JERSEY , 200. at o'clock ?-m., Defendant NOT FOUND because: MY COMMISSION EXPIRE Moved Unknown No Answer Vacant 1st Attempt: Time: 3rd Attempt: / / Time: Sworn to and subscribed before me this day of , 200_ Notary: 2°d Attempt: / / Time: Attorney for Plaintiff DANIEL G. SCHMIEG, Esquire - I.D. No. 62205 One Penn Center at Suburban Station, Suite 1400 By: 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 I >0 r CY? 4. ,t I y+? A j p v?? ?+1 PO DEUTSCHE BANK NATIONAL TRUST, COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff VS. ROBERT E. FRANK, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-6180 Civil Term ENTRY OF APPEARANCE AS LOCAL COUNSEL Dear Sir: I hereby enter my appearance as local counsel, in conjunction with Phelan Hallinan & Schmieg, LLP, for the limited purpose of representing the Plaintiff at Oral Argument on Plaintiff's Motion to Reassess Damages and Brief on June 10, 2008 at 8:45 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. Date: June 3, 2008 Dale F. Shu t, r. Supreme Court I.D. 19373 10 West High Street Carlisle, PA 17013 (717) 241-4311 CC: Michele M. Bradford, Esquire Robert E. Frank, III ` r- G? mot 77 i CO IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DEUTSCHE BANK NATIONAL TRUST Court of Common Pleas COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH Civil Division CERTIFICATES, SERIES 2007-HE2 CUMBERLAND County Plaintiff No. 07-6180- CIVIL TERM VS. ROBERT E. FRANK, III Defendant ND NOW, this C day of =-r2008 the Prothonotary is ORDERED to MI A amend the in rem judgment and the Sheriff is ORDERED to amend the writ nunc pro tunc in this case as follows: Principal Balance $105,518.53 Interest Through June 11, 2008 $9,706.85 Per Diem $2,584.00 Late Charges $0.00 Legal fees $1,735.00 Cost of Suit and Title $1,364.00 Sheriffs Sale Costs $0.00 Property Inspections/ Property Preservation $90.00 Appraisal/Brokers Price Opinion $190.00 Mortgage Insurance Premium / $0.00 Private Mortgage Insurance Non Sufficient Funds Charge $0.00 Suspense/Misc. Credits Escrow Deficit TOTAL ($0.00) $605.91 $119,210.29 Plus interest from June 11, 2008 through the date of sale at six percent per annum. Note: The above figure is not a payoff quote. Sheriffs commission i inc n the above figure. Y THE C Michele M. Bradford, Esquire Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 TEL: (215) 563-7000 FAX: (215) 563-3459 michele.bradford(a?fedphe.com ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 M? (eon 00P?? og 0 ROB T E. RANK, III' p 507 RO S VENUE 9 NEW C BERLAND, PA 17070 163828 ° 3 C-a o -rz c? ?: Q i Deutsche Bank National Trust Company, as In the Court of Common Pleas of Trustee for Morgan Stanley Mortgage Pass- Cumberland County, Pennsylvania Through Certificates, Series 2007-HE2 Writ No. 2007-6180 Civil Term VS Robert E. Frank, III Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on February 27, 2008 at 1950 hours, he served a true copy of the within Real Estate Writ, Notice and Description, in the above entitled action, upon the within named defendant, to wit: Robert E. Frank, III, by making known unto Robert Frank, III, personally at 215 Bosler Ave., Lemoyne, Cumberland County, Pennsylvania its contents and at the same time handing to him personally the said true and correct copy of the same. Steve Bender, Deputy Sheriff, who being duly sworn according to law, states that on April 01, 2008 at 1424 hours, he posted a true copy of the within Real Estate Writ, Notice, Poster and Description, in the above entitled action, upon the property of Robert E. Frank, III located at 215 Bosler Ave., Lemoyne, PA 17043, Cumberland County, Pennsylvania according to law. R. Thomas Kline, Sheriff, who being duly sworn according to law, states he served the above Real Estate Writ, Notice, Poster and Description in the following manner: The Sheriff mailed a notice of the pendency of the action to the within named defendant, to wit: Robert E. Frank, III by regular mail to his last known address of 215 Bosler Ave., Lemoyne, PA 17043. This letter was mailed under the date of March 31, 2008 and never returned to the Sheriffs Office. R. Thomas Kline, Sheriff, who being duly sworn according to law, states this writ is returned STAYED per letter of request from Attorney Daniel Schmieg. Sheriff's Costs: Docketing 30.00 Poundage 83.17 Posting Bills 15.00 Advertising 15.00 Law Library .50 Prothonotary 2.00 Mileage 30.72 Levy 15.00 Surcharge 20.00 Law Journal 355.00 Patriot News 306.59 Share of bills 14.73 $ 887.71 So Answers: R. Thomas Kli , heriff BY j &I(.le? Real Estate Sy geant ?L ,,k 316 ?t-4- goo . , . it DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION V. ROBERT E. FRANK, III Defendant(s). NO. 07-6180- CIVIL TERM AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. l) DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2, Plaintiff in the above action, by its attorney, DANIEL G. SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at ,215 BOSLER AVENUE, LEMOYNE, PA 17043. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 2. Name and address of Defendant(s) in the judgment: Same as above 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None & 4. Name and address of last recorded holder of every mortgage of record: George E. Homerich and Gayle D. Homerich, 312 Sunset Drive, New husband and wife Cumberland, PA 17070 None 5. Name and address of every other person who has any record lien on the property: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) Tenant/Occupant Domestic Relations of Cumberland County Commonwealth of Pennsylvania Department of Welfare 215 BOSLER AVENUE LEMOYNE, PA 17043 13 North Hanover Street Carlisle, PA 17013 PO Box 2675 Harrisburg, PA 17105 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. January 10, 2008 DATE DANIEL G. SCHMIEG, ESQUIRE Attorney for Plaintiff .? DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, V. ROBERT E. FRANK, III Defendant(s). CUMBERLAND COUNTY No. 07-6180- CIVIL TERM January 10, 2008 TO: ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 **THIS FIRMIS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANYINFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLYRECEIVED A DISCHARGE IN BANKRUPTCYAND THIS DEBT WAS NOT REAFFIRMED, THIS ISNOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. * * Your house (real estate) at, 215 BOSLER AVENUE, LEMOYNE, PA 17043, is scheduled to be sold at the Sheriffs Sale on JUNE 11, 2008 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $113,290.91 obtained by DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 (the mortgagee) against you. In the event the sale is continued, an announcement will be made at said sale in compliance with Pa.R.C.P., Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriff s Sale, you must take immediate action: 1. The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: (215) 563-7000. 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause. 3. You may also be able to stop the sale through other legal proceedings. You may need an attorney to assert your rights. The sooner you contact one, the more chance you will have of stopping the sale. (See notice on page two on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1. If the Sheriffs Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling (215) 563-7000. 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property. 3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find out if this has happened, you may call (717) 240-6390. 4. If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened. 5. You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A schedule of distribution of the money bid for your house will be filed by the Sheriff within 30 days of the sale. This schedule will state who will be receiving that money. The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the distribution is filed. 7. You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE . A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a representative of the plaintiff at the Sheriff's Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest corner of Second (formerly called Cherry Alley) and Hosler Avenue; thence extending westwardly 63 feet along the northern line of Bosler Avenue to a point; thence at right angles to Hosler Avenue along the eastern line of property now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. Being designated as Tax Parcel I.D. Number: 12-21-0265-178 TITLE TO SAID PREMISES IS VESTED IN Robert E. Frank, III, a single man, by Deed from George E. Homerich and Gayle D. Homerich, husband and wife, dated 09/18/2006, recorded 09/26/2006, in Deed Book 276, page 4027. WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 07-6180 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due DEUTSCHE BANK NATIONAL TRUST COMPANY, as Turstee for MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2, Plaintiff (s) From ROBERT E. FRANK, III (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $113,290.91 L.L.$ 0.50 Interest from 1/12/08 to 6/11/08 (per diem - $18.62) -- $2,830.24 and Costs Atty's Comm % Due Prothy $2.00 Atty Paid $250.77 Other Costs $2,231.50 Plaintiff Paid Date: 2/11/08 Prothonota (Seal) By: Deputy REQUESTING PARTY: Name DANIEL G. SCHMIEG, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, LLP ONE PENN CENTER AT SUBURBAN STATION 1617 JFK BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 62205 c? Real Estate Sale # 07 On February 14, 2008 the Sheriff levied upon the defendant's interest in the real property situated in Borough of Lemoyne, Cumberland County, PA Known and numbered as 215 Bosler Avenue, Lemoyne, more fully described on Exhibit "A" filed with this writ and by this reference incorporated herein. Date: February 14, 2008 By. t ? Real Estate Sergeant b 1 .8 V Z 1 933 0001 Awx? OUR JJ183HS 3HI A0:3313A0 f The Patriot-News Co. 812 Market St. Harrisburg, PA 17101 Inquiries - 717-255-8292 CUMBERLAND COUNTY SHERIFFS OF CUMBERLAND COUNTY COURT HOUSE the Patti* ot News Now you know CARLISLE PA 17013 THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Under Act No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin) ss Joseph A. Dennison, being duly sworn according to law, deposes and says: That he is the Assistant Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot-News and The Sunday Patriot-News newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Metro editions which appeared on the date(s) indicated below. That neither he nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY This ad ran on the date(s) shown below: 04/23/08 04/30/08 05107/08 Sworn to ancl(sutycribed before me this 27 day of May, 2008 A.D. Notary COMMONWEALTH OF PENNSYLVANIA Notarial Seal Chyrle L. Sheppard, Notary Public City Of Harrisburg, Dauphin County My Commission Expires may 29, 2010 Member, Pennsylvania Association of Notaries Real Estate Sale #07 Writ No. 2007-6180 Civil Term deutsche Bank National Trust Company, As Trustee for Morgan Stanley Mortgage Pass-Through Certificates, Series 2007-HE2 VS Robert E. Frank, 111 Attorney: Daniel Schmieg DESCRIPTION ALL that certain lot or net of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly hounded and described as follows, *-wit: BEGINNING at a point 95 feet West of the northwest corner of Second (formerly called Cherry Alley) and Hosler Avenue; thence extending westwardly 63 feet along the northern line of Bosley Avenue to a point, thence at right angles to Hosler Avenue along the eastern line of property now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at fight angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. Being designated as Tax Parcel I.D. Number: ,, '-21-0265-178 TITLE TO SAID PREMISES IS VESTED IN Robert E. Frank_ 11I, a single man, by Deed from ".,orge E. Homerich and Gayle D. Homerich. husband and wife. dated 09/1 912 00 6. recorded 09/26/2(x16. in Deed Book 276, page 4027. PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.1784 COMMONWEALTH OF PENNSYLVANIA ss. COUNTY OF CUMBERLAND : Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, viz: May 2, May 9, and May 16, 2008 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true. 7)?? k- 4""- L' a Marie Co , Editor SWORN TO AND SUBSCRIBED before me this 16 day of May, 2008 Notary F TARIAL SEAL RAH A COLLINS tary Public , CUMBERLAND COUNTY n Expires Apr 28, 2010 lw1Ai,1M MATS 8" NO. 7 Writ No. 2007-6180 Civil Deutsche Bank National Trust Company, As Trustee for Morgan Stanley Mortgage Pass-Through Certificates, Series 2007-HE2 vs. Robert E. Frank, III Atty.: Daniel Schmieg ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest corner of Sec- ond (formerly called Cherry Alley) and Hosler Avenue; thence extend- ing westwardly 63 feet along the northern line of Bosler Avenue to a point; thence at right angles to Hosler Avenue along the eastern line of prop- erty now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. Being designated as Tax Parcel I.D. Number: 12-21-0265-178. TITLE TO SAID PREMISES IS VESTED IN Robert E. Frank, III, a single man, by Deed from George E. Homerich and Gayle D. Homerich, husband and wife, dated 09/ 18/2006, recorded 09/26/2006, in Deed Book 276, page 4027. 4 PRAECIPE FOR WRIT OF EXECUTION - (MORTGAGE FORECLOSURE) P.R.C.P.3180-3183 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 No. 07-6180- CIVIL Plaintiff, V. ROBERT E. FRANK, III Defendant(s). TO THE DIRECTOR OF THE OFFICE OF THE PROTHONOTARY: Issue writ of execution in the above matter: Amount Due Interest from 06/12/2008 (per diem -$19.60) Add'1 Costs TOTAL $119,210.29 $3,567.20 and Costs $3,536.00 $126,313.49 DANIEL G. SCIMIEG, ESQUI One Penn Center at Suburban Stat n 1617 John F. Kennedy Boulevard, uite 1 Philadelphia, PA 19103-1814 Attorney for Plaintiff Note: Please attach description of property. IMPORTANT NOTICE: This prope.rty is sold at the direction',of the plaintiff. It may not be sold in the absence of a representative of the plaintiff at the Sheriff's Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. 163828 w? O? w? o? ?w oz 00 Mr o? U? H x rHi???N aaox 0 OWaw ?Ew,yLw7? z? W'?O?U, Pro H?Wx V AV? 4R W ? W wl 7 W F w 0 a 0 H w? O O w °o w? V a -d w M O h a w 0 w a z W N b ?? v b '? t? H 00 N 00 M ?O IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff VS. ROBERT E. FRANK, III Court of Common Civil Division CUMBERLAND Coun No. 07-6180- CIVIL TERM Defendant ORDER AND NOW, this U day of {108 the Prothonotary is ORDERED to amend the in rem judgment and the Sheriff is ORDERED to amend the writ nunc pro tune in this case as follows: Principal Balance " $105,518. 3 Interest Through June 11, 2008 $9,706. 5 Per Diem $2,584.00 Late Charges $0. 0 Legal fees $1,735. 0 Cost of Suit and Title $1,364. 0 Sheriffs Sale Costs $0. 0 Property Inspections/ Property Preservation $90.0 Appraisal/Brokers Price Opinion $190.0 Mortgage Insurance Premium / $0.0 Private Mortgage Insurance Non Sufficient Funds Charge $0.0 Suspense/Misc. Credits I($0.00) Escrow Deficit $605.91 TOTAL $119210;29 Plus interest from June 11, 2008 through the date of sale at six percent per annum. Note: The above figure is not a payoff quote. Sheriffs commission i me the above figure. THE Michele M. Bradford, Esquire Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 TEL: (215) 563-7000 FAX: (215) 563-3459 raichele.bradford(a,fed phe.com ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 ROBERT E. FRANK, III 507 ROSS AVENUE NEW CUMBERLAND, PA 17070 163828 (-*j% L G0R FROM EiWAL to Thy whereof; l here lk my has,- of SdCowl d , Pa. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, V. ROBERT E. FRANK, III Defendant(s). CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 07-6180- CIVIL TERM AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. 1) STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-U2, Plaintiff in the above action, by its attorney, DANIEL G. SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at ,215 BOSLER AVENUE, LEMOYNE, PA 17043. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 2. Name and address of Defendant(s) in the judgment: Same as above 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 4. Name and address of last recorded holder of every mortgage of record: Name George E. Homerich Last Known Address (if address c of be reasonably ascertained, please indicate) 312 Sunset Drive New Cumberland, PA 17070 i Gayle D. Homgrich 312 Sunset Drive New Cumberland, PA 17070 5. Name and address of every other person who has any record lien on the property: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name Last Known Address (if address c of be reasonably ascertained, please indic te) None 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Last Known Address (if address cannot b, e reasonably ascertained, please indicate) Tenant/Occupant 215 BOSLER AVENUE LEMOYNE, PA 17043 Domestic Relations of Cumberland County 13 North Hanover Street Carlisle, PA 17013 Commonwealth of Pennsylvania Department of Welfare Commonwealth of Pennsylvania Bureau of Individual Tax Inheritance Tax Division PO Box 2675 Harrisburg, PA 17105 6th Floor, Strawberry Sq., Dept.1280161 Harrisburg, PA 17128 13th Floor, Suite 1300 1001 Liberty Avenue Pittsburgh, PA 15222 Department of Public Welfare P.O. Box 8486 TPL Casualty Unit Willow Oak Building Estate Recovery Program Harrisburg, PA 17105 I I verify that the statements made in this affidavit are true and correct to the best f m personal knowledge or information and belief. I understand that false statements herein are ma a subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unworn falsification to authorities. Internal Revenue Service Federated Investors Tower July 25, 2008 DATE DANIEL G. SCHMIEG, ESQU Attorney for Plaintiff t- " CO ?.. _; 7D PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, V. ROBERT E. FRANK, III Defendant(s). ATTORNEY FOR PLAINTIFF CUMBERLAND COUNTY COURT OF COMMON PPLVAS CIVIL DIVISION NO. 07-6180- CIVIL TERM CERTIFICATION DANIEL G. SCHMIEG, ESQUIRE, hereby verifies that he is attorney for the Plaintiff in the above-captioned matter, and that the premises are not subject to the provisions of Act 91 because it is: () an FHA mortgage () non-owner occupied O vacant (X) Act 91 procedures have been fulfilled This certification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. DANIEL G. SCHMIEG, 4SQvIR6 Attorney for Plaintiff ?`? ? c? ?- ?? -?? °° - r_ ?- ?,_._ ;-37 t- - r., ?, .. .. ?` r.... ?: - _ ; ?_ N :? __,.. ; 7 :,? DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, v. ROBERT E. FRANK, III Defendant(s). CUMBERLAND COUNTY No. 07-6180- CIVIL TERM July 25, 2008 TO: ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 "THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFO" TION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DIJSCH RGE IN BANKRUPTCYAND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTt UED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. *t Your house (real estate) at 215 BOSLER AVENUE LEMOYNE PA 1704 is scheduled to be sold at the Sheriff s Sale on DECEMBER 10, 2008 at 10:00 a.m. in the Cumberl d County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $ Obtained by DEUTSCHE BANK NATIONAL TRUST COMPANY. AS TRUSTEE FOR MORGAN mortgagee) against you. In the event the sale is continued, an announcement will be made' at said sale in compliance with Pa.R.C.P., Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriffs Sale, you must take immediate action: The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: (215) 563-7000. 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause. 3. You may also be able to stop the sale through other legal proceedings. You may need an attorney to assert your rights. The sooner you contact one, the more chance you will have of stopping the sale. (See notice on page two on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1. If the Sheriffs Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling (215) 563-7000. 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property. 3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find out if this has happened, you may call (717) 240-6390. 4. If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened. 5. You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A schedule of distribution of the money bid for your house will be filed by the Sheriff within 30 days of the sale. This schedule will state who will be receiving that money. The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the distribution is filed. 7. You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a representative of the plaintiff at the Sheriff's Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 LEGAL DESCRIPTION ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest corner of Second (formerjly called Cherry Alley) and Hosler Avenue; thence extending westwardly 63 feet' along the northern line of Bosler Avenue to a point; thence at right angleslto Hosler Avenue along the eastern line of property now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue' 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. Being designated as Tax Parcel I.D. Number: 12-21-0265-178 TITLE TO SAID PREMISES IS VESTED IN Robert E. Frank, III, a single man, by Deed from George E. Homerich and Gayle D. Homerich, husband and wife, dated 09/18/2006, recorded 09/26/2006, in Deed Book 276, page 4027. PREMISES BEING: 215 BOSLER AVENUE, LEMOYNE, PA 17043 PARCEL NO. 12-21-0265-178 & 12-21-0265-178./02 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 07-6180 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2, Plaintiff (s) From ROBERT E. FRANK, III (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof, (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $119,210.29 L.L. $.50 Interest from 6/12/08 (per diem - $19.60) - $3.567.20 and Costs Atty's Comm % Due Prothy $2.00 Atty Paid $1159.98 Other Costs $3,536.00 Plaintiff Paid Date: 7/29/08 Look Prothonotary (Seal) By: Deputy REQUESTING PARTY: Name: DANIEL G. SCHMIEG, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, LLP ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 62205 AFFIDAVIT OF SERVICE PLAINTIFF DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 DEFENDANT(S) ROBERT E. FRANK, III SERVE ROBERT E. FRANK, III AT: 215 BOSLER AVENUE LEMOYNE, PA 17043 SERVED CUMBERLAND COUNTY No. 07-6180- CIVIL TERM ACCT. #163828 Type of Action - Notice of Sheriffs Sale Sale Date: DECEMBER 10, 2008 Served and made known to 1 7 E 1-Af4V- , VW , Defendant, on the (3411 day of SST, 200R_ at'• 55 , o'clock T.m., at e21 E BOSLEA ?'1/EI'lIYE, C-EIK4YIU9 , Commonwealth of Pennsylvania, in the manner described below: ? Defendant personally served. Adult family member with whom Defendant(s) reside(s). Name and Relationship is _ Adult in charge of Defendant(s)'s residence who refused to give name or relationship. Manager/Clerk of place of lodging in which Defendant(s) reside(s). Agent or person in charge of Defendant(s)'s office or usual place of business. an officer of said Defendant(s)'s company. Other: Description: Age-4-b! Height % .. Weight 17S Race 'Al Sex 1A Other I, WC-D MO 0- , a competent adult, being duly sworn according to law, depose and state that I personally handed a true and correct copy of the Notice of Sheriff s Sale in the manner as set forth herein, issued in the captioned case on the date and at the address indicated above. Sworn to and subscribed befor me this day of 200 le Notary: By: PL ASE ATTE SERVICE AT LEAST 3 TIMES. INDICATE DATES & TIMES OF SERVICE ATTEMPTED. THEODORE J. HARRIS NOT SERVED NOTARY PU RBEY On the STATE * , 200_, at o'clock _.m., Defendant NOT FOUND because: SAY CwN Moved Unknown No Answer Vacant 1St Attempt: Time: 3rd Attempt: Time: Sworn to and subscribed before me this day of 200. Notary: 2"d Attempt: / 1 -Time: Attorney for Plaintiff DANIEL G. SCHMIEG, Esquire - I.D. No. 62205 One Penn Center at Suburban Station, Suite 1400 By: 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 _0 I (? rY+' © C= v C- PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire ATTORNEY FOR PLAINTIFF Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST Court of Common Pleas COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH Civil Division CERTIFICATES, SERIES 2007-HE2 Plaintiff CUMBERLAND County VS. No. 07-6180- CIVIL TERM ROBERT E. FRANK, III Defendant PLAINTIFF'S MOTION TO REASSESS DAMAGES Plaintiff, by its Attorney, Michele M. Bradford, Esquire, moves the Court to direct the Prothonotary to amend the judgment in this matter, and in support thereof avers the following: 1. Plaintiff commenced this foreclosure action by filing a Complaint on October 22, 2007, a true and correct copy of which is attached hereto, made part hereof, and marked as Exhibit "A» 2. Judgment was entered on January 14, 2008 in the amount of $113,290.91. A true and correct copy of the praecipe for judgment is attached hereto, made part hereof, and marked as Exhibit "B". 3. Pursuant to Pennsylvania Rule of Civil Procedure 1037(b)(1), a default judgment containing a dollar amount must be entered for the amount claimed in the complaint and any item which can be calculated from the complaint, i.e. bringing the interest current. However, new items cannot be added at the time of entry of the judgment. 4. The Property is listed for Sheriffs Sale on December 10, 2008. 5. Additional sums have been incurred or expended on Defendant's behalf since the Complaint was filed and Defendant has been given credit for any payments that have been made since the judgment. The amount of damages should now read as follows: Principal Balance Interest Through December 10, 2008 Per Diem $25.84 Late Charges Legal fees Cost of Suit and Title Sheriffs Sale Costs Property Inspections/ Property Preservation Appraisal/Brokers Price Opinion Mortgage Insurance Premium / Private Mortgage Insurance Non Sufficient Funds Charge Suspense/Misc. Credits Escrow Deficit TOTAL $105,518.53 $14,376.13 $0.00 $2,100.00 $2,030.50 $887.71 $120.00 $190.00 $0.00 $0.00 ($0.00) $2,496.96 $127,719.83 6. The judgment formerly entered is insufficient to satisfy the amounts due on the Mortgage. 7. Under the terms of the Mortgage and Pennsylvania law, Plaintiff is entitled to inclusion of the figures set forth above in the amount of judgment against the Defendant. Plaintiff's foreclosure judgment is in rem only and does not include personal liability, as addressed in Plaintiff's attached brief. 9. In accordance with Cumberland County Local Rule 208.3(9), Plaintiff sent a copy of its proposed Motion to Reassess Damages and Order to the Defendant on September 24, 2008 and requested the Defendant's Concurrence. Plaintiff did not receive any response from the Defendant. A true and correct copy of Plaintiff s letter pursuant to Local Rule 208.3(9) and certification of mailing are attached hereto, made part hereof, and marked as Exhibit "C". 10. In compliance with Cumberland County Local Rule 209.3(a)(2), Plaintiff avers that Judge Bayley entered an order to amend the judgment dated June 10, 2008. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. i chmieg, LLP DATE: ?,NJ b-6 By: Michele M. Bradford, squire Attorney for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 ATTORNEY FOR PLAINTIFF One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff VS. ROBERT E. FRANK, III Defendant Court of Common Pleas Civil Division CUMBERLAND County No. 07-6180- CIVIL TERM MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REASSESS DAMAGES 1. BACKGROUND OF CASE ROBERT E. FRANK, III executed a Promissory Note agreeing to pay principal, interest, late charges, real estate taxes, hazard insurance premiums, and mortgage insurance premiums as these sums became due. Plaintiffs Note was secured by a Mortgage on the Property located at 215 BOSLER AVENUE, LEMOYNE, PA 17043. The Mortgage indicates that in the event a default in the mortgage, Plaintiff may advance any necessary sums, including taxes, insurance, and other items, in order to protect the security of the Mortgage. In the instant case, Defendant defaulted under the Mortgage by failing to tender numerous, promised monthly mortgage payments. Accordingly, after it was clear that the default would not be cured, Plaintiff commenced the instant mortgage foreclosure action. Judgment was subsequently entered by the Court, and the Property is currently scheduled for Sheriffs Sale. Because of the excessive period of time between the initiation of the mortgage foreclosure action, the entry of judgment and the Sheriffs Sale date, damages as previously assessed are outdated and need to be adjusted to include current interest, real estate taxes, insurance premiums, costs of collection, and other expenses which Plaintiff has been obligated to pay under the Mortgage in order to protect its interests. It is also appropriate to give Defendant credit for monthly payments tendered through bankruptcy, if any. II. LEGAL ARGUMENT TO AMEND PLAINTIFF'S IN REM JUDGMENT It is settled law in Pennsylvania that the Court may exercise its equitable powers to control the enforcement of a judgment and to grant any relief until that judgment is satisfied. 20 P.L.E., Judgments § 191. Stephenson v. Butts, 187 Pa.Super. 55, 59, 142 A.2d 319, 321 (1958). Chase Home Mortgage Corporation of the Southwest v. Good, 537 A.2d 22, 24 (Pa.Super. 1988). The Pennsylvania Superior Court has repeatedly cited the right of a foreclosing creditor to amend its judgment prior to the Sheriff s sale. Nationsbanc Mortgage Corp. v. Grillo, 827 A.2d 489 (Pa.Super. 2003). Morgan Guaranty Trust Co. of N.Y. vs. Mowl, 705 A.2d 923 (Pa. Super. 1998). Union National Bank of Pittsburgh v. Ciongoli, 407 Pa.Super. 171, 595 A.2d 179 (1991). The Supreme Court of Pennsylvania recognized in Landau v. Western Pa. Nat. Bank, 445 Pa. 117, 282 A.2d 335 (1971), that the debt owed on a Mortgage is subject to change and, in fact, can be expected to change from day to day because the bank must advance sums in order to protect its collateral. Because a Mortgage lien is not extinguished until the debt is paid, Plaintiff must protect its collateral up until the date of sale. Beckman v. Altoona Trust Co., 332 Pa. 545, 2 A.2d 826 (1939). Because a judgment in mortgage foreclosure is strictly in rem, it is critical that the judgment reflect those amounts expended by the Plaintiff in protecting the property. Meco Reality Company v. Burns, 414 Pa. 495, 200 A.2d 335 (1971). Plaintiff submits that if it goes to sale without the requested amended judgment, and if there is competitive bidding for the Property, Plaintiff will suffer a significant loss in that it would not be able to recoup monies it advanced to protect its interests. Conversely, amending the in rem judgment will not be detrimental to Defendant as it imputes no personal liability. In B.C.Y. v. Bukovich, the Pennsylvania Superior Court reiterated its long standing rule that a Court has the inherent power to correct a judgment to conform to the facts of a case. 257 Pa. Super. 157, 390 A.2d 276 (1978). In the within case, the amount of the original judgment does not adequately reflect the additional sums due on the Mortgage due to Defendant's failure to tender payments during the foreclosure proceeding and the advances made by the mortgage company. The Mortgage plainly requires the mortgagor to tender to the mortgagee monthly payments of principal and interest until the Promissory Note accompanying the Mortgage is paid in full. The mortgagor is also required to remit to the mortgagee sufficient sums to pay monthly mortgage insurance premiums, fire insurance premiums, taxes and other assessments relating to the Property. The mortgagor has breached the terms of the Mortgage, and Plaintiff has been forced to incur significant unjust financial losses on this loan. III. THE FORECLOSURE JUDGMENT IS IN REM ONLY The within case is a mortgage foreclosure action, the sole purpose of which is to take the mortgaged property to Sheriffs Sale. Pennsylvania law makes clear that an action in mortgage foreclosure is strictly in rem and does not include any personal liability. Newtown Village Partnership v. Kimmel, 424 Pa. Super 53, 55, 621 A.2d 1036, 1037 (1993). Signal Consumer Discount Company v. Babuscio, 257 Pa. Super 101, 109, 390 A.2d 266, 270 (1978). Pennsylvania Rule of Civil Procedure 1141(a). However, Pennsylvania law requires that the foreclosure action demand judgment for the amount due. Pa.R.C.P. 1147(6). The purpose of the dollar amount in the in rem judgment is for bidding at the Sheriffs Sale. In the event that a third party real estate speculator were to bid on the mortgaged property at the Sheriffs Sale and become the successful purchaser, Plaintiff would receive the amount of the in rem judgment from the Sheriff. IV. INTEREST The Mortgage clearly requires that the Defendant shall promptly pay when due the principal and interest due on the outstanding debt. In addition, the Note specifies the rate of interest to be charged until the debt is paid in full or otherwise satisfied. Specifically, interest from 30 days prior to the date of default through the date of the impending Sheriff s sale has been requested. V. TAXES AND INSURANCE If Plaintiff had not advanced monies for taxes and insurance throughout the foreclosure proceeding, Plaintiff would have risked loss of its collateral. If the Property were sold at a tax sale, Plaintiffs interest very well may be divested, and Plaintiff would sustain a complete loss on the outstanding balance due on the loan. If the Property were damaged in a fire, Plaintiff would not be able to obtain insurance proceeds to restore the Property if it did not pay the insurance premiums. Most importantly, the Mortgage specifically provides that the mortgagee may advance the monies for taxes and insurance and charge these payments against the escrow account. Plaintiff is simply seeking to have the Court enforce the terms of the Mortgage. V1. ATTORNEY'S FEES The amount of attorney's fees requested in the Motion to Reassess Damages is in accordance with the loan documents and Pennsylvania law. Pennsylvania Courts have long and repeatedly concluded that a request of five percent of the outstanding principal balance is reasonable and enforceable as an attorney's fee. Robinson v. Loomis, 51 Pa. 78 (1865); First Federal Savings and Loan Association v. Street Road Shopping Center, 68 D&C 2d 751, 755 (1974). In Federal Land Bank of Baltimore v. Fetner, the Superior Court held that an attorney's fee of ten percent of the original mortgage amount is not unconscionable. 410 A.2d 344 (Pa. Super. 1979). Recently, the Superior Court cited Fetner in confirming that an attorney's fee of ten percent included in the judgment in mortgage foreclosure action was reasonable. Citicorp v. Morrisville Hampton Realty, 662 A.2d 1120 (Pa. Super. 1995). Importantly, Plaintiff recognizes this Honorable Court's equitable authority to set attorney's fees and costs as it deems reasonable. VII. CONCLUSION Therefore, Plaintiff respectfully submits that if the enforcement of its rights is delayed by legal proceedings, and such delays require the mortgagee to expend additional sums provided for by the Mortgage, then the expenses necessarily become part of the mortgagee's lien and should be included in the judgment. Plaintiff respectfully requests that this Honorable Court grant its Motion to Reassess Damages. Plaintiff submits that it has acted in good faith in maintaining the Property in accordance with the Mortgage, and has relied on terms of the Mortgage with the understanding that it would recover the monies it expended to protect its collateral. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. DATE: raa LLP ?* bX By: ichele M. , Attorn ey for Plaintiff Exhibit "A" PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id..No. 62205 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 163828 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 3476 STATEVIEW BLVD FORT MILL, SC 29715 Plaintiff V. ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 Defendant T rr, G -' o z Gal ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. 07- 101 go a iv i I -jecm CUMBERLAND COUNTY CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE ° -1 _I NL Y FILE COPY PLEASE RETURN Copy Of ft,c,?ccP f??r? cif ?'?c;cr File #: 163828 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9108 File k: 163828 IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 et seq. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WELL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS File #: 163928 COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OFTHAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL ESTATE. File #: 163828 1. Plaintiff is DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 3476 STATEVIEW BLVD FORT MILL, SC 29715 2. The name(s) and last known address(es) of the Defendant(s) are: ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 who islare the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 09/18/2006 mortgagor(s) made, executed, and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS A NOMINEE FOR DECISION ONE MORTGAGE COMPANY, LLC which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Book: 1967, Page: 345. PLAINTIFF is now the legal owner of the mortgage and is in the process of formalizing an assignment of same. The mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 4. The premises subject to said mortgage is described as attached. 5. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 07/01/2007 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. File 6: 163828 6. The following amounts are due on the mortgage: Principal Balance $105,518.53 Interest $3,634.98 06/01/2007 through 10/19/2007 (Per Diem $25.78) Attorney's Fees $1,250.00 Cumulative Late Charges $0.00 09/18/2006 to 10/19/2007 Cost of Suit and Title Search 550.00 Subtotal $110,953.51 Escrow Credit $0.00 Deficit $171.88 Subtotal 171.88 TOTAL $111,125.39 7. 8. If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. Plaintiff is not seeking a judgment of personal liability (or an in personam judgment) against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. File #: 163928 9. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 10. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $111,125.39, together with interest from 10/19/2007 at the rate of $25.78 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. PHELAN HALLINAN & SCHMIEG LLP ? W0 By /s/Francis S. Hall' C LAWRENCE T. PHELAN, ESQUIRE DANIEL G. SCHMIEG, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff File #: 163928 LEGAL DESCRIPTION ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest corner of Second (formerly called Cherry Alley) and Hosler Avenue; thence extending westwardly 63 feet along the northern line of Bosler Avenue to a point; thence at right angles to Hosler Avenue along the eastern line of property now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. Being designated as Tax Parcel I.D. Number: 12-21-0265-178 215 BOSLER AVENUE, LEMOYNE, PA 17043 File #: 163829 FRANCIS S. HALLINAN, ESQUIRE hereby states that he is attorney for PLAINTIFF in this matter, that Plaintiff is outside the jurisdiction of the court and or the Verification could not be obtained within the time allowed for the filing on the pleading, that he is authorized to make this verification pursuant to Pa. R. C. P. 1024 ( c ) and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are based upon information supplied by Plaintiff and are true and correct to the best of his knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unswom falsification to authorities. FRANCIS S. HALLINAN, ESQUIRE Attorney for Plaintiff DATE: 1119 /-017 Exhibit "B" PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 Attorney for Plaintiff ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 'Ft. Copy DEUTSCHE BANK NATIONAL TRUST x? R o COMPANY, AS TRUSTEE FOR MORGAN CUMMERLAND Cp STANLEY MORTGAGE PASS-THROUGH COURT OF COMMO$EAt CERTIFICATES, SERIES 2007-HE2 3476 STATEVIEW BLVD CIVILDIVISION FORT MILL,SC 29715 NO. 07-61W CIVIL• o ?m Plaintiff; ROBERT E. FRANK, III 215 BOSLER AVENUE A P;Ray LEMOYNE, PA 17043 C Defendant(s). PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter an in rem judgment in favor of 'the Plaintiff and against ROBERT E. FRANK. III and . Defendant(s) for failure to file an Answer to Plaintiffs Complaint within 20 days from service thereof and for Foreclosure and Sale of the mortgaged premises, and assess plaintiffs damages as follows: As set forth in Complaint $111,125.39 Interest from 10/20/07 to 1/11/08 $2,165.52 TOTAL $113,290.91 I hereby certify that 0) the addresses of the Plaintiff and Defendant(s) are as shown above, and (2) that notice has been given in accordance with Rule 237. 1, copy attached. DANIEL G. SCHMIEG, ESQUIRE Attorney for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: ' .-PRS RO 04 163828 Exhibit "C" PHELAN HALLINAN & SCHMIEG, LLP 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103 (215) 563-7000 FAX#: (215) 563-3459 michele.bradford@fedphe.com Michele M. Bradford, Esquire Representing Lenders in Pennsylvania and New Jersey September 24, 2008 ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 RE: DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 vs. ROBERT E. FRANK, III Premises Address: 215 BOSLER AVENUE LEMOYNE, PA 17043 CUMBERLAND County CCP, No. 07-6180- CIVIL TERM Dear Defendant, Enclosed please find a true and correct copy of my proposed Motion to Reassess Damages and Order. In accordance with Cumberland County Local Rule 208.3(9), I am seeking your concurrence with the requested relief that is, increasing the amount of the judgment. Please respond to me within 5 days, by Monday, September 29, 2008. Should you have further questions or concerns, please do not hesitate to contact me. Otherwise, please be guided accordingly. Very tr4.dfo ch ld, Esquire For Phelan Hallinan & Schmieg, LLP Enclosure ° cn P w N ?O 00 J ON LA A W N - l": H r CCD to? ro ro 6 . Ind W 1? W ? ? N 00 N 00 z N ?•t ? • z $ ? o O ? Gi O bd ? 8 C> 0 o ? ? tit C?i a ? Z v ° to O N tA rAy v J t11 ? e? 3 O O C,j c O t? - CrJ ? a RUC ?•? O O Q ? ? l? ? =. g N H 0 O 0 A O C ? . ? n H`< ~ qq o ?r?i a?' d J -?n?Aa ?d,o95 ?? O W n Ego ? ,r-4-8 0 'goes - ssue, ? ? ? ? Q _ ? .?._` a ? fHd Z) -fty i??? ATNFY ? ? ?. 02 1M $ OZ y ?'g ? UEaMWARU 0004218010 SEP 24 2008 MAILED FROM ZIPCODE 19103 z 8??? eo oU"?Uy ? g' o n n ? o ?• 0Yz " a a? a8 y ? a .7 x ?° I17 b r- n ?r r ro A °o VERIFICATION Michele M. Bradford, Esquire, hereby states that she is the attorney for Plaintiff in this action, that she is authorized to make this verification, and that the statements made in the foregoing Motion to Reassess Damages are true and correct to the best of her knowledge, information and belief. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. DATE: b? P e 1 ' an & c ieg, LLP By: Michele M. Bradford, Es wire Attorney for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire, Atty. I.D. No. 69849 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff VS. ROBERT E. FRANK, III Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 07-6180- CIVIL TERM CERTIFICATION OF SERVICE I hereby certify that true and correct copies of Plaintiffs Motion to Reassess Damages, and Brief in Support thereof, were sent to the following individuals on the date indicated below. ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 DATE: _J?:?Zq4 b% ROBERT E. FRANK, III 507 ROSS AVENUE NEW CUMBERLAND, PA 17070 MdrS , LLP By: rTe , e Att orney for Plaintiff ` , tL U e.?...1 .. N OCT 0 2 2006 fn IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff vs. ROBERT E. FRANK, III Defendant Court of Common Pleas Civil Division CUMBERLAND County No. 07-6180- CIVIL TERM RULE AND NOW, this ?a 6' day of 2008, a Rule is entered upon the Defendant to show cause why an Order should not be entered granting Plaintiff's Motion to Reassess Damages. Rule Returnable on the 3/et day ofjt 2008, at ?- in no. A Courtroomif the Cumberland County Courthouse, Carlisle, Pennsylv 'a. THE C CTN .n y 7:1 CL t- cm ? C=:) N ,/ lichele M. Bradford, Esquire Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 TEL: (215) 563-7000 FAX: (215) 563-3459 michele.bradford@fedphe.com ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 717-623-6789 c4p Its ?a U-1 tv?zly? ROBERT E. FRANK, III 507 ROSS AVENUE NEW CUMBERLAND, PA 17070 163828 PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH : CERTIFICATES, SERIES 2007-HE2 Plaintiff vs. ROBERT E. FRANK, III Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 07-6180- CIVIL TERM CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of our Motion to Reassess Damages noting a Rule Return date of November 3, 2008 was sent to the following individual on the date indicated below. ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 DATE: l? S ROBERT E. FRANK, III 507 ROSS AVENUE NEW CUMBERLAND, PA 17070 M I & Schmieg, LLP By: Michele M. Brad rd, Esquire Attorney for Plaintiff CIO c:D C-) 111M C37 . DEUTSCHE BANK NATIONAL TRUST, COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff VS. ROBERT E. FRANK, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-6180 Civil Term ENTRY OF APPEARANCE AS LOCAL COUNSEL Dear Sir: I hereby enter my appearance as local counsel, in conjunction with Phelan Hallinan & Schmieg, LLP, for the limited purpose of representing the Plaintiff at Oral Argument on Plaintiff's Motion to Reassess Damages on November 3, 2008 at 8:45 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carl' Pennsylvania. Date: October 31, 2008 Dale F. S ?r. Supreme Court .D. 19373 10 West High Street Carlisle, PA 17013 (717) 241-4311 CC: Michele M. Bradford, Esquire Robert E. Frank, III f r1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DEUTSCHE BANK NATIONAL TRUST Court of Common Pleas COMPANY, AS TRUSTEE FOR MORGAN Civil Division STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 CUMBERLAND County Plaintiff No. 07-6180- CIVIL TERM VS. ROBERT E. FRANK, III Defendant ORDER AND NOW, this'V_A_daY Of _*47_Z_1 2008 the Prothonotary is ORDERED to amend the in rem judgment and the Sheriff is ORDERED to amend the writ nunc pro tunc in this case as follows: $105,518.53 Principal Balance 376.13 $14 Interest Through December 10, 2008 , Per Diem $25.84 00 $0. $ Late Charges 0.00 $2,1 Legal fees $2,030.50 Cost of Suit and Title $887 71 Sheriffs Sale Costs $120.00 Property Inspections/ Property Preservation $190.00 Appraisal/Brokers Price Opinion $0.00 Mortgage Insurance Premium / Private Mortgage Insurance $0.00 Non Sufficient Funds Charge ,r Suspense/Misc. Credits Escrow Deficit TOTAL ($0.00) $2,496.96 $127,719.83 Plus interest from December 10, 2008 through the date of sale at six percent per annum. Note: The above figure is not a payoff quote. Sheriffs con figure. Michele M. Bradford, Esquire Phelan Hallinan & Schmieg, LLP Zzive red 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 TEL: (215) 563-7000 FAX: (215) 563-3459 michele bradford@I edphe.com ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 TEL: 717-623-6789 ROBERT E. FRANK, III IYIOU- 507 ROSS AVENUE NEW CUMBERLAND, PA 17070 11 163828 Ca r 9 r1 INC co ? 1 - . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DEUTSCHE BANK NATIONAL TRUST COMPANY, AS CUMBERLAND COUNTY TRUSTEE FOR MORGAN STANLEY MORTGAGE COURT OF COMMON PLEAS PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff CIVIL DIVISION V. ROBERT E. FRANK, III Defendant(s) NO. 07-6180- CIVIL TERM AFFIDAVIT OF SERVICE PURSUANT TO RULE 3129 COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND COUNTY ) SS: Plaintiff in the above action sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at: 215 BOST ER A VENT TR T EMOYNE, PA 17043. As required by Pa. R.C.P. 3129.2(a) Notice of Sale has been given to Lienholders in the manner required by Pa. R.C.P. 3129.2(c) on each of the persons or parties named, at that address set forth on the Affidavit No. 2 (previously filed) and/or Amended Affidavit No. 2 on the date indicated. A copy of the Certificate of Mailing (Form 3817) and/or Certified Mail Return Receipt stamped by the U.S. Postal Service is attached for each notice. 0 DANIEL G. SC G, ESQUI Attorney for Plaintiff Date: November 10, 2008 IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not he sold in the absence of a representative of the plaintiff at the Sheriff c Sale- The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. 163828 " 9 W MOVA '+o $ tt f L u ?' i le, eq C tioll Aida! El .r vt +?a r- oo ate,,,,,,' --? v .?+, ' ? as? C%i Q Deutsche Bank National Trust Company as In the Court of Common Pleas of Trustee for Morgan Stanley Mortgage Pass- Cumberland County, Pennsylvania Through Certificates Series 2007-HE2 Writ No. 2007-6180 Civil Term VS Robert E. Frank, III Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on September 29, 2008 at 2005 hours, he served a true copy of the within Real Estate Writ, Notice and Description, in the above entitled action, upon the within named defendant, to wit: Robert E. Frank, III by making known unto Robert E. Frank personally at 215 Bosler Ave., Lemoyne, Cumberland County, Pennsylvania its contents and at the same time handing to him personally the said true and correct copy of the same. Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on October 8, 2008 at 1802 hours, he posted a true copy of the within Real Estate Writ, Notice, Poster and Description, in the above entitled action, upon the property of Robert E. Frank, III, located at 215 Bosler Ave, Lemoyne, Cumberland County, Pennsylvania according to law. R. Thomas Kline, Sheriff, who being duly sworn according to law, states he served the above Real Estate Writ, Notice, Poster and Description in the following manner: The Sheriff mailed a notice of the pendency of the action to the within named defendant, to wit: Robert E, Frank, III, by regular mail to his last known address of 215 Bosler Ave, Lemoyne, PA 17043 This letter was mailed under the date of October 6, 2008 and never returned to the Sheriffs Office. R. Thomas Kline, Sheriff, who being duly sworn according to law, states this writ is returned STAYED per letter of request from Attorney Daniel Schmieg. Sheriff's Costs: Docketing Poundage Posting Handbills Advertising Law Library Prothonotary Mileage Levy Surcharge Postpone Sale Law Journal Patriot News Share of Bills So Answ rs: R. Thomas Kline, Sheriff BY `Jo Real Estate Sergeant 30.00 17.13 15.00 15.00 .50 2.00 45.00 15.00 20.00 40.00 355.00 324.53 14.92 / $894.08 ? -414'10f lJ..i C C\j -?1 3 _ t J L+L- - ?? l^' LL. G cV DEUTSCHE BANK NATIONAL TRUST COMPANY, ?,S TRUSTEE FOR MORGAN CUMBERLAND COUNTY STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 COURT OF COMMON PLEAS Plaintiff, CIVIL DIVISION V. NO. 07-6180- CIVIL TERM ROBERT E. FRANK, III Defendant(s). AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. 1) STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2, Plaintiff in the above action, by its attorney, DANIEL G. SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at ,215 BOSLER AVENUE, LEMOYNE, PA 17043. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 2. Name and address of Defendant(s) in the judgment: Same as above 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name None Last Known Address (if address cannot be reasonably ascertained, please indicate) 4. Name and address of last recorded holder of every mortgage of record: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) George E. Homerich 312 Sunset Drive New Cumberland, PA 17070 Gayle D. Homerich 312 Sunset Drive New Cumberland, PA 17070 5. Name and address of every other person who has any record lien on the property: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) Tenant/Occupant Domestic Relations of Cumberland County Commonwealth of Pennsylvania Department of Welfare Commonwealth of Pennsylvania Bureau of Individual Tax Inheritance Tax Division Internal Revenue Service Federated Investors Tower Department of Public Welfare TPL Casualty Unit Estate Recovery Program 215 BOSLER AVENUE LEMOYNE, PA 17043 13 North Hanover Street Carlisle, PA 17013 PO Box 2675 Harrisburg, PA 17105 6th Floor, Strawberry Sq., Dept. 28061 Harrisburg, PA 17128 13th Floor, Suite 1300 1001 Liberty Avenue Pittsburgh, PA 15222 P.O. Box 8486 Willow Oak Building Harrisburg, PA 17105 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. July 25, 2008 "02--4_ -g ?-g DATE DANIEL G. SCHMIEG, ESQU Attorney for Plaintiff DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, V. ROBERT E. FRANK, III Defendant(s). CUMBERLAND COUNTY No. 07-6180- CIVIL TERM July 25, 2008 TO: ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 **THIS FIRMISA DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANYINFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLYRECEIVED A DISCHARGE IN BANKRUPTCYAND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. * * Your house (real estate) at, 215 BOSLER AVENUE, LEMOYNE, PA 17043, is scheduled to be sold at the Sheriffs Sale on DECEMBER 10, 2008 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $ obtained by. 5-1-A(rLX;Y MUKI'GAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 (the mortgagee) against you. In the event the sale is continued, an announcement will be made at said sale in compliance with Pa.R.C.P., Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriffs Sale, you must take immediate action:. 1. The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: (215) 563-7000. 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause. You may also be able to stop the sale through other legal proceedings. You may need an attorney to assert your rights. The sooner you contact one, the more chance you will have of stopping the sale. (See notice on page two on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1. If the Sheriffs Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling (215) 563-7000. 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property. 3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find out if this has happened, you may call (717) 240-6390. 4. If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened. 5. You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A schedule of distribution of the money bid for your house will be filed by the Sheriff within 30 days of the sale. This schedule will state who will be receiving that money. The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the distribution is filed. 7. You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a representative of the plaintiff at the Sheriffs Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 07-6180 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2, Plaintiff (s) From ROBERT E. FRANK, III (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $119,210.29 L.L. $.50 Interest from 6/12/08 (per diem - $19.60) - $3.567.20 and Costs Atty's Comm % Due Prothy $2.00 Atty Paid $1159.98 Other Costs $3,536.00 Plaintiff Paid Date: 7/29/08 Prothonotary (Seal) By: Deputy REQUESTING PARTY: Name: DANIEL G. SCHMIEG, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, LLP ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 62205 Real Estate Sale # 12 On August 15, 2008 the Sheriff levied upon the defendant's interest in the real property situated in Lemoyne Borough, Cumberland County, PA Known and numbered as 215 Bosler Ave., Lemoyne more fully described on Exhibit "A" filed with this writ and by this reference (Fit incorporated herein. C?q aGe Date: August 15, 2008 By: Real Es a Sergeant PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.1784 COMMONWEALTH OF PENNSYLVANIA ss. COUNTY OF CUMBERLAND : Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, viz: October 31, November 7 and November 14, 2008 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true. ie Coyne, Editor SWORNVF KAND SUBSCRIBED before me this 4 day of November 2008 Notary NOTARIAL SEAL DEBORAH A COLLINS Notary Public CARLISLE BORO, CUMBERLAND COUNTY My Commission Expires Apr 28, 2010 WMAL #OMM SOM . 12 Writ No. 2007-6180 Civil Deutsche Bank National Trust Company as Trustee for Morgan Stanley Mortgage Pass-Through Certificates, Series 2007-HE2 VS. Robert E. Frank, III Atty.: Daniel Schmieg LEGAL DESCRIPTION ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows to-wit: BEGINNING at a point 95 feet West of the northwest corner of Sec- ond (formerly called Cherry Alley) and Hosler Avenue; thence extend- ing westwardly 63 feet along the northern line of Bosler Avenue to a point; thence at nght ameles to Hader Avenue the eastern Hne dprop- t3' now t= Of A.E. 80771%ert. er1rolay 130 feet to a point on the south aide of a 15 font alley, thence e w welly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. Being designated as Tax Parcel I.D. Number: 12-21-0265-178. TITLE TO SAID PREMISES IS VESTED IN Robert E. Frank, III, a single man, by Deed from George E. Homerich and Gayle D. Homerich, husband and wife, dated 09/18/2006, recorded 09/26/2006, in Deed Book 276, page 4027. PREMISES BEING: 215 BOSLER AVENUE, LEMOYNE, PA 17043. PARCEL NO. 12-21-0265-178 & 12-21-0265-178./02. ?r--?- i ne Patriot-News Co. 812 Market St. Harrisburg, PA 17101 Inquiries - 717-255-8213 CUMBERLAND COUNTY SHERIFFS OF CUMBERLAND COUNTY COURT HOUSE 14f Paw ot-d(ws Now you know CARLISLE PA 17013 THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Under Act No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin) ss Joseph A. Dennison, being duly sworn according to law, deposes and says: That he is the Assistant Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot-News and The Sunday Patriot-News newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Metro editions which appeared on the date(s) indicated below. That neither he nor said Company is interested in the subject matter of said printed notice or,advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on Behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the >tockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds n and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY This ad ran on the date(s) shown below: 10/29/08 11/05!08 11/12/08 Sworn to aryWAscribed before ne thlKs 5/daY9f,November, 2008 A.D. CONWEALTH OF PENNSYLVANIA Notwwsew S?o f LL Kam, YOf NotwyPuble MY klarr(sb ' p MO 69= Nov. 26 ,2011 PsnftYlvanfa,4wWrAlon of Notaries Real Estate Sale No.12 Writ No. 2007-6180 Civil Term Deutsche Bank National Trust Company as Trustee for Morgan Stanley Mortgage Pass-Through Certificates, Series 2007-HE2 VS Robert E. Frank, 111 Attorney Daniel Schmieg LEGAL DESCRIPTION ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest corner -of Second-(fo-rineily called Cherry Alley) and Hosler Avenue; thence extending westwardly 63 feet along the northern line of Bosler Avenue to a point; thence at right angles to Hosler Avenue along the eastern fine of property now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. Being designated as Tax Parcel I.D, Number: 12-21.0265-178 TITLE TO SAID PREMISES IS VESTED IN Robert E. Frank, III, a single man, by Deed from George E. Homerich and Gayle D. Homerich, husband and wife, dated 09118/2006, recorded 09/2612006, in Deed Book-276, page 4027. PREMISES BEING: 215 BOSLER AVENUE, LEMOYNE, PA 17043 PARCEL NO. 12-21-0265-178 & 12-21-0265- 178102 Phelan Hallinan & Schmieg, LLP By: Daniel G. Schmieg, Esquire Identification No. 62205 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 VS. Attorney for Plaintiff : CUMBERLAND COUNTY : COURT OF COMMON PLEAS CIVIL DIVISION No. 07-6180- CIVIL TERM ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 PRAECIPE TO REDUCE PbURT ORDER TO JUDGMENT ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter judgment in favor of the Plaintiff and against ROBERT E. FRANK, III, Defendant(s) for failure to file an Answer to Plaintiff's Complaint within 20 days from service thereof and for foreclosure and sale of the mortgaged premises, and assess Plaintiffs damages as follows: As set forth in ORDER TOTAL $127,719.83 $127,719.83 I hereby certify that (1) the addresses of the Defendant(s) are as shown above, and (2) that notice has been given in accordance with Rule 237.1, copy attached. Daniel G. Schmieg, Esquire Attorney for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: 71 X605 PHS # 163828 PRO PROTHY i , > Phelan Hallinan & Schmieg, LLP By: Daniel G. Schmieg, Esquire Identification No. 62205 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 Attorney for Plaintiff DEUTSCHE BANK NATIONAL TRUST CUMBERLAND COUNTY COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE COURT OF COMMON PLEAS PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 CIVIL DIVISION : No. 07-6180- CIVIL TERM VS. ROBERT E. FRANK, III VERIFICATION OF NON-MILITARY SERVICE Daniel G. Schmieg, Esquire, hereby verifies that he is attorney for the Plaintiff in the above-captioned matter, and that on information and belief, he has knowledge of the following facts, to wit: (a) that the defendant(s) is/are not in the Military or Naval Service of the United States or it Allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act of Congress of 1940, as amended. (b) that defendant ROBERT E. FRANK, III is over 18 years of age and resides at 215 BOSLER AVENUE, LEMOYNE, PA 17043. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. s Daniel G. Schmieg, Esquire Attorney for Plaintiff (Rule of Civil Procedure No. 236) - Revised DEUTSCHE BANK NATIONAL TRUST CUMBERLAND COUNTY COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS- COURT OF COMMON PLEAS THROUGH CERTIFICATES, SERIES 2007-HE2 : CIVIL DIVISION VS. ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 : No. 07-6180- CIVIL TERM Notice is given that a Judgment in the above captioned matter has been entered against you on 62 aax.L ..T?o9 By: If you have any questions concerning this matter please contact: Daniel G. Schmieg, Esquire Attorney or Party Filing 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 ** THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOUHAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BEANATTEMPT TO COLLECTA DEBT, BUT ONLY ENFORCEMENT OFA LIEN AGAINST PROPERTY. ** ,? ?. NOV-03-2008(NON) 10:15 5hughart Lana Office (FRX)7172414021 P.003/005 ai •• r TK TAE COURT OF COMMON PLEAS CUMIGMAND COUNTY, PENNSYLVANIA, DEMCHE BANK NATIONAL TRUST Court of Common Pleass COMPANY, AS TRUSTEE FOR MORGAN STA74LEY MORTGAGE PASS-THROUGH Civil Division CEIi'Y MCATES, SSRI1'SS 2007-14M plaintiff vs. ROBERT E. FRANK M Dar nda nt CUMSERIAM County No. 07.6180• CIV7L TERM OADVIR AND NOW, tbisj.!L_day of...&)A= eC , 2008 the Prothonoteay Is ORDMW to amend the in re:m judgmont and the Sheriff is ORUERM to amend the writ nunc pro tune in this == as follows: Principal dance $105,518.53 W=est 7lrwsh D member 10, 2008 $14,376.13 Per Diem $25.94 Late Charsm $0.00 Lepl fees $2,100.00 Cost of Suit and ntic $2,030.50 Shadfra S WO Costs $887.71 Propaty laxpecdons/ Property Prestwati,on $120.00 Appraiaal/13rokem Ptic* Opinion $190.00 Mortgage l asumace Premium t 50.00 Private Mortgage Wunm a3 Non SulEciemt Funds Charge 80.00 1(03 F aq NOVA-03-2008(NON) 10:15 5huohart Law Office SuspensmM3se. Credits Escrow Deficit TOTAL (FRX)7172414021 (30.00) SZ.4%.% 5127,719.83 Plus interest from D*Mmbcr 10, 2008 through She date or s We at six perml per annwn. P. 004/005 Nate: The above figure is not a payoff quote. Sheriffs commission is not included iii the above figure. BY Tam COURT Mirlhelo M. $ftdfnrd, Psqufra 16171PK BoulavaW, Suite 1400 PhftadelPhfa. PA 19103 TZL- (215) 563.7000 PAX: (215) 563-3459 mlchck.hmdfot 1e. m ROBERT S.V RANK, TU 215 T3OSLER AVW UE LEMOYNE, PA 17043 TEL: 717-623-6789 n 1 vim. I born ? A tart 670" Pa. .Um at . o' ROBERT Ti. FUNK. W 507 R055'AVENUE NEW CUMBERLAND. PA 17070 1638.8 1 O b r-I C-!3 n rn DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 No. 07-6180-CIVIL TERM Plaintiff, v. . ROBERT E. FRANK, III Defendant(s). TO THE DIRECTOR OF THE OFFICE OF THE PROTHONOTARY: Issue writ of execution in the above matter: Amount Due Interest from 12/11/2008-09/02/2009 (per diem -$21.00) Add'1 Costs TOTAL $127,719.83 $5,586.00 and Costs $133,305.83 DANIff . SCHMIEG, ESQUIRE One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 Attorney for Plaintiff Note: Please attach description of property.No. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a representative of the plaintiff at the Sheriff's Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale 163828 d H r= ow a ?., o°,?W Hw?? W O d F"' C ,7 rWii °u ? olou w o ?? AUK ` 0113 H a H w 0 a 0 H U _ wW o? w o a? V a w w N 00 F M a a? a y 45 d t? Y r A r V ? 1 t J rh Y L`- a Lf L OQ cn M d' O r d a 0 a d a w a o ?' WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) N007-6180 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2, Plaintiff (s) From ROBERT E. FRANK, III (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRITPION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $127,719.83 L.L. $.50 Interest FROM 12/11/2008-09/02/2009 (PER DIEM - $21.00) - $5,586.00 AND COSTS Atty's Comm % Atty Paid $2,094.56 Plaintiff Paid Due Prothy $2.00 Other Costs Date: MARCH 27, 2009 (Seal) REQUESTING PARTY: Name DANIEL G SCHMIEG, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, L.L.P. ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 C is R. LQr 4ono By: Deputy Supreme Court ID No. 62205 PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, V. ROBERT E. FRANK, III Defendant(s). ATTORNEY FOR PLAINTIFF CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 07-6180-CIVIL TERM CERTIFICATION DANIEL G. SCHMIEG, ESQUIRE, hereby verifies that he is attorney for the Plaintiff in the above-captioned matter, and that the premises are not subject to the provisions of Act 91 because it is: () an FHA mortgage ( ) non-owner occupied ( ) vacant (X) Act 91 procedures have been fulfilled This certification is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. DAY. G. SCHMIEG, ESQUIRE Attorney for Plaintiff r r- '0 ' ? `..' t E kin s t C- LEGAL DESCRIPTION ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest corner of Second (formerly called Cherry Alley) and Hosler Avenue; thence extending westwardly 63 feet along the northern line of Bosler Avenue to a point; thence at right angles to Hosler Avenue along the eastern line of property now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. TITLE TO SAID PREMISES IS VESTED IN Robert E. Frank, III, a single man, by Deed from George E. Homerich and Gayle D. Homerich, husband and wife, dated 09/18/2006, recorded 09/26/2006, in Deed Book 276, page 4027. PREMISES BEING: 215 BOSLER AVENUE, LEMOYNE, PA 17043 PARCEL NO. 12-21-0265-178 DEUTSCHE BANK NATIONAL TRUST w COMPANY, AS TRUSTEE FOR MORGAN WWI STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, V. ROBERT E. FRANK, III Defendant(s). CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 07-6180-CIVIL TERM AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. l) DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2, Plaintiff in the above action, by its attorney, DANIEL G. SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at ,215 BOSLER AVENUE, LEMOYNE, PA 17043. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 2. Name and address of Defendant(s) in the judgment: Same as above 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 4. Name and address of last recorded holder of every mortgage of record: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) GEORGE E. HOMERICH AND 312 SUNSET DRIVE GAYLE D. HOMERICH NEW CUMBERLAND, PA 17070 5. Name and address of every other person who has any record lien on the property: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) Tenant/Occupant Domestic Relations of Cumberland County Commonwealth of Pennsylvania Department of Welfare Commonwealth of Pennsylvania Bureau of Individual Tax Inheritance Tax Division Internal Revenue Service Federated Investors Tower Department of Public Welfare TPL Casualty Unit Estate Recovery Program 215 BOSLER AVENUE LEMOYNE, PA 17043 13 North Hanover Street Carlisle, PA 17013 PO Box 2675 Harrisburg, PA 17105 6th Floor, Strawberry Sq., Dept. 28061 Harrisburg, PA 17128 13th Floor, Suite 1300 1001 Liberty Avenue Pittsburgh, PA 15222 P.O. Box 8486 Willow Oak Building Harrisburg, PA 17105 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. March 25, 2009 DATE DANIEL G. SCHMIEG, ESQUIRE Attorney for Plaintiff ?'+" .®. ¦ ?? C7 C`,? ::? ? ? -?'? t 1 f ? ? ^?` DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, V. ROBERT E. FRANK, III Defendant(s). CUMBERLAND COUNTY No. 07-6180-CIVIL TERM March 25, 2009 TO: ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 "THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCYAND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE ANATTEMPT TO COLLECT A DEBT, BUT ONLYENFORCEMENT OFA LIENAGAINST PROPERTY. ** Your house (real estate) at. 215 BOSLER AVENUE, LEMOYNE, PA 17043, is scheduled to be sold at the Sheriffs Sale on SEPTEMBER 2, 2009 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $127,719.83 obtained by DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 (the mortgagee) against you. In the event the sale is continued, an announcement will be made at said sale in compliance with Pa.R.C.P., Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriffs Sale, you must take immediate action: 1. The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: (215) 563-7000. 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause. 3. You may also be able to stop the sale through other legal proceedings. You may need an attorney to assert your rights. The sooner you contact one, the more chance you will have of stopping the sale. (See notice on page two on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1. If the Sheriffs Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling (215 563-7000. 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property. 3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find out if this has happened, you may call (717) 240-6390. 4. If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened. 5. You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A schedule of distribution of the money bid for your house will be filed by the Sheriff within 30 days of the sale. This schedule will state who will be receiving that money. The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the distribution is filed. 7. You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a representative of the plaintiff at the Sheriffs Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 PRAECIPE FOR WRIT OF EXECUTION - (MORTGAGE FORECLOSURE) P.R.C.P. 3180-3183 LEGAL DESCRIPTION ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest comer of Second (formerly called Cherry Alley) and Hosler Avenue; thence extending westwardly 63 feet along the northern line of Bosler Avenue to a point; thence at right angles to Hosler Avenue along the eastern line of property now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. TITLE TO SAID PREMISES IS VESTED IN Robert E. Frank, III, a single man, by Deed from George E. Homerich and Gayle D. Homcrich, husband and wife, dated 09/18/2006, recorded 09/26/2006, in Deed Book 276, page 4027. PREMISES BEING: 215 BOSLER AVENUE, LEMOYNE, PA 17043 PARCEL NO. 12-21-0265-178 fV -0? {( l ?' a . r AFFIDAVIT OF SERVICE PLAINTIFF DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 DEFENDANT(S) ROBERT E. FRANK, III SERVE ROBERT E. FRANK, III AT: 215 BOSLER AVENUE LEMOYNE, PA 17043 CUMBERLAND COUNTY No. 07-6180-CIVIL TERM ACCT. #163828 Type of Action - Notice of Sheriff's Sale Sale Date: SEPTEMBER 2, 2009 SERVED Served and made known to P06 A4 R. BI tAltl Defendant, on the day of (C- 20P, at : R7 o'clock P.m , at s (/? N ? Commonwealth of Pennsylvania, in the manner described below: V Defendant personally served. Adult family member with whom Defendant(s) reside(s). Name and Relationship is _ Adult in charge of Defendant(s)'s residence who refused to give name or relationship. Manager/Clerk of place of lodging in which Defendant(s) reside(s). Agent or person in charge of Defendant(s)'s office or usual place of business. an officer of said Defendant(s)'s company. Other: Description: Age Height 6 b Weight f75 Race W Sex M Other I, O???l%? AA d LL- a competent adult, being duly sworn according to law, depose and state that I personally handed a true and correct copy of the Notice of Sheriffs Sale in the manner as set forth herein, issued in the captioned case on the date and at the address indicated above. Sworn to and subscribed before me this day of _4t&1 L , 200°. ??/?/ No By; G PLEASE ATT MPT SERVICE AT LEAST 3. TIMES. INDICATE DATES & TIMES OF SERVICE ATTEMPTED. THE,D1DRE J• HARRIS NOT SERVED TARP PUBLIC On the 40,jO JERSEY 200 at o'clock -.m., Defendant NOT FOUND because: STAB WMISSION EXPIRES Unknown No Answer Vacant 1" Attempt: Time: 2nd Attempt: Time: 3rd Attempt: Time: Sworn to and subscribed Attorney for Plaintiff before me this day DANIEL G. SCHMIEG, Esquire - I.D. No. 62205 of - 200. One Penn Center at Suburban Station, Suite 1400 Notary: By: 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 3? z7 FILED ? i OF THE P' 2009 MAY 12 PM 12: d 9 Phelan Hallinan & Schmieg, LLP By: Lawrence T. Phelan, Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff V. ROBERT E. FRANK, III ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 07-6180- CIVIL TERM Defendant PLAINTIFF'S MOTION TO REASSESS DAMAGES Plaintiff, by its Attorneys, Phelan Hallinan & Schmieg, LLP, moves the Court to direct the Prothonotary to amend the judgment in this matter, and in support thereof avers the following: Plaintiff commenced this foreclosure action by filing a Complaint on October 22, 2007, a true and correct copy of which is attached hereto, made part hereof, and marked as Exhibit «A„ 2. Judgment was entered on January 14, 2008 in the amount of $113,290.91. A true and correct copy of the praecipe for judgment is attached hereto, made part hereof, and marked as Exhibit "B". 3. Pursuant to Pennsylvania Rule of Civil Procedure 1037(bx1), a default judgment containing a dollar amount must be entered for the amount claimed in the complaint and any item which can be calculated from the complaint, i.e. bringing the interest current. However, new items cannot be added at the time of entry of the judgment. 4. The Property is listed for Sheriffs Sale on September 2, 2009 5. Additional sums have been incurred or expended on Defendant's behalf since the Complaint was filed and Defendant has been given credit for any payments that have been made since the judgment. The amount of damages should now read as follows: Principal Balance $105,518.53 Interest Through September 2, 2009 $22,840.54 Per Diem $28.91 Late Charges $0.00 Legal fees $2,650.00 Cost of Suit and Title $2,553.50 Sheriffs Sale Costs $1,781.79 Property Inspections/ Property Preservation $261.25 Appraisal/Brokers Price Opinion $285.00 Mortgage Insurance Premium / $0.00 Private Mortgage Insurance Non Sufficient Funds Charge $0.00 Suspense/Misc. Credits ($0.00) Escrow Deficit $3,187.75 TOTAL $139,078.36 6. The judgment formerly entered is insufficient to satisfy the amounts due on the Mortgage. 7. Under the terms of the Mortgage and Pennsylvania law, Plaintiff is entitled to inclusion of the figures set forth above in the amount of judgment against the Defendant. 8. Plaintiff's foreclosure judgment is in rem only and does not include personal liability, as addressed in Plaintiffs attached brief. 9. In accordance with Cumberland County Local Rule 208.3(9), Plaintiff sent a copy of its proposed Motion to Reassess Damages and Order to the Defendant on July 21, 2009 and requested the Defendant's Concurrence. Plaintiff did not receive any response from the Defendant. A true and correct copy of Plaintiffs letter pursuant to Local Rule 208.3(9) and certification of mailing are attached hereto, made part hereof, and marked as Exhibit "C". 10. No judge has previously entered a ruling in this case. 11. In compliance with Cumberland County Local Rule 209.3(ax2), Plaintiff avers that Judge Bayley entered an order for $119,210.29 dated June 10, 2008 . WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. & Sdunim, LLP DATE: ?2 22 / By: Lawrence T. Phelan, Esquire Francis S. Hallinan, Esquire .-?aniel G. Schmieg Esquire Michele M. Bradford, Esquire Judith T. Romano, Esquire Sheetal R. Shah-Jani, Esquire Jenine R. Davey, Esquire Lauren R. Tabas, Esquire Vivek Srivastava, Esquire Jay B. Jones, Esquire Peter J. Mulcahy, Esquire Andrew L. Spivack, Esquire Jaime McGuinness, Esquire Chrisovalante P. Fliakos, Esquire Joshua I. Goldman, Esquire Courtenay R. Dunn, Esquire Andrew C. Bramblett, Esquire ATTORNEY FOR PLAINTIFF Phelan Hallinan & Schmieg, LLP By: Lawrence T. Phelan, Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff V. ROBERT E. FRANK, III ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 07-6180- CIVIL TERM Defendant MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REASSESS DAMAGES I. BACKGROUND OF CASE ROBERT E. FRANK, III executed a Promissory Note agreeing to pay principal, interest, late charges, real estate taxes, hazard insurance premiums, and mortgage insurance premiums as these sums became due. Plaintiffs Note was secured by a Mortgage on the Property located at 215 BOSLER AVENUE, LEMOYNE, PA 17043. The Mortgage indicates that in the event a default in the mortgage, Plaintiff may advance any necessary sums, including taxes, insurance, and other items, in order to protect the security of the Mortgage. In the instant case, Defendant defaulted under the Mortgage by failing to tender numerous, promised monthly mortgage payments. Accordingly, after it was clear that the default would not be cured, Plaintiff commenced the instant mortgage foreclosure action. Judgment was subsequently entered by the Court, and the Property is currently scheduled for Sheriffs Sale. Because of the excessive period of time between the initiation of the mortgage foreclosure action, the entry of judgment and the Sheriffs Sale date, damages as previously assessed are outdated and need to be adjusted to include current interest, real estate taxes, insurance premiums, costs of collection, and other expenses which Plaintiff has been obligated to pay under the Mortgage in order to protect its interests. It is also appropriate to give Defendant credit for monthly payments tendered through bankruptcy, if any. II. LEGAL ARGUMENT TO AMEND PLAINTIFF'S IN REM JUDGMENT It is settled law in Pennsylvania that the Court may exercise its equitable powers to control the enforcement of a judgment and to grant any relief until that judgment is satisfied. 20 P.L.E., Judgments § 191. Stephenson v. Butts, 187 Pa.Super. 55, 59, 142 A.2d 319, 321 (1958). Chase Home Mortgage Corporation of the Southwest v Good, 537 A.2d 22, 24 (Pa.Super. 1988). The Pennsylvania Superior Court has repeatedly cited the right of a foreclosing creditor to amend its judgment prior to the Sheriffs sale. Nationsbanc Mortgage Corp. v. Grillo, 827 A.2d 489 (Pa.Super. 2003). Morgan Guaranty Trust Co. ofN.Y. v. Mowl, 705 A.2d 923 (Pa. Super. 1998). Union National Bank of Pittsburgh v. Ciongoli, 407 Pa.Super. 171, 595 A.2d 179 (1991). The Supreme Court of Pennsylvania recognized in Landau v. Western Pa. Nat. Bank 445 Pa. 117, 282 A.2d 335 (1971), that the debt owed on a Mortgage is subject to change and, in fact, can be expected to change from day to day because the bank must advance sums in order to protect its collateral. Because a Mortgage lien is not extinguished until the debt is paid, Plaintiff must protect its collateral up until the date of sale. Beckman v. Altoona Trust Co., 332 Pa. 545, 2 A.2d 826 (1939). Because a judgment in mortgage foreclosure is strictly in rem, it is critical that the judgment reflect those amounts expended by the Plaintiff in protecting the property. Meco Reality Company v. Burns, 414 Pa. 495, 200 A.2d 335 (1971). Plaintiff submits that if it goes to sale without the requested amended judgment, and if there is competitive bidding for the Property, Plaintiff will suffer a significant loss in that it would not be able to recoup monies it advanced to protect its interests. Conversely, amending the in rem judgment will not be detrimental to Defendant as it imputes no personal liability. In B.C.Y. v. Bukovich, the Pennsylvania Superior Court reiterated its long standing rule that a Court has the inherent power to correct a judgment to conform to the facts of a case. 257 Pa. Super. 157, 390 A.2d 276 (1978). In the within case, the amount of the original judgment does not adequately reflect the additional sums due on the Mortgage due to Defendant's failure to tender payments during the foreclosure proceeding and the advances made by the mortgage company. The Mortgage plainly requires the mortgagor to tender to the mortgagee monthly payments of principal and interest until the Promissory Note accompanying the Mortgage is paid in full. The mortgagor is also required to remit to the mortgagee sufficient sums to pay monthly mortgage insurance premiums, fire insurance premiums, taxes and other assessments relating to the Property. The mortgagor has breached the terms of the Mortgage, and Plaintiff has been forced to incur significant unjust financial losses on this loan. III. THE FORECLOSURE JUDGMENT IS IN REM ONLY The within case is a mortgage foreclosure action, the sole purpose of which is to take the mortgaged property to Sheriffs Sale. Pennsylvania law makes clear that an action in mortgage foreclosure is strictly in rem and does not include any personal liability. Newtown Village Partnership v. Kimmel, 424 Pa. Super 53, 55, 621 A.2d 1036, 1037 (1993). Sim Consumer Discount Company v. Babuscio, 257 Pa. Super 101, 109, 390 A.2d 266,270 (1978). Pennsylvania Rule of Civil Procedure 1141(a). However, Pennsylvania law requires that the foreclosure action demand judgment for the amount due. Pa.R.C.P. 1147(6). The purpose of the dollar amount in the in rem judgment is for bidding at the Sheriff s Sale. In the event that a third party real estate speculator were to bid on the mortgaged property at the Sheriffs Sale and become the successful purchaser, Plaintiff would receive the amount of the in rem judgment from the Sheriff. IV. INTEREST The Mortgage clearly requires that the Defendant shall promptly pay when due the principal and interest due on the outstanding debt. In addition, the Note specifies the rate of interest to be charged until the debt is paid in full or otherwise satisfied. Specifically, interest from 30 days prior to the date of default through the date of the impending Sheriffs sale has been requested. V. TAXES AND INSURANCE If Plaintiff had not advanced monies for taxes and insurance throughout the foreclosure proceeding, Plaintiff would have risked loss of its collateral. If the Property were sold at a tax sale, Plaintiffs interest very well may be divested, and Plaintiff would sustain a complete loss on the outstanding balance due on the loan. If the Property were damaged in a fire, Plaintiff would not be able to obtain insurance proceeds to restore the Property if it did not pay the insurance premiums. Most importantly, the Mortgage specifically provides that the mortgagee may advance the monies for taxes and insurance and charge these payments against the escrow account. Plaintiff is simply seeking to have the Court enforce the terms of the Mortgage. VI. ATTORNEY'S FEES The amount of attorney's fees requested in the Motion to Reassess Damages is in accordance with the loan documents and Pennsylvania law. Pennsylvania Courts have long and repeatedly concluded that a request of five percent of the outstanding principal balance is reasonable and enforceable as an attorney's fee. Robinson v. Loomis, 51 Pa. 78 (1865); First Federal Savings and Loan Association v. Street Road Shopping Center, 68 D&C 2d 751, 755 (1974). In Federal Land Bank of Baltimore v. Fetner, the Superior Court held that an attorney's fee of ten percent of the original mortgage amount is not unconscionable. 410 A.2d 344 (Pa. Super. 1979). Recently, the Superior Court cited Fetner in confirming that an attorney's fee of ten percent included in the judgment in mortgage foreclosure action was reasonable. Citicorp v. Morrisville Hampton Realty, 662 A.2d 1120 (Pa. Super. 1995). Importantly, Plaintiff recognizes this Honorable Court's equitable authority to set attorney's fees and costs as it deems reasonable. VII. CONCLUSION Therefore, Plaintiff respectfully submits that if the enforcement of its rights is delayed by legal proceedings, and such delays require the mortgagee to expend additional sums provided for by the Mortgage, then the expenses necessarily become part of the mortgagee's lien and should be included in the judgment. Plaintiff respectfully requests that this Honorable Court grant its Motion to Reassess Damages. Plaintiff submits that it has acted in good faith in maintaining the Property in accordance with the Mortgage, and has relied on terms of the Mortgage with the understanding that it would recover the monies it expended to protect its collateral. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. DATE: 2 - 2.2--0 `' Phelan inan & Sc eg, LLP By: Lawrence T. Phelan, Esquire Francis S. Hallinan, Esquire -<-Daniel G. Schmieg Esquire Michele M. Bradford, Esquire Judith T. Romano, Esquire Sheetal R. Shah-Jani, Esquire Jenine R. Davey, Esquire Lauren R. Tabas, Esquire Vivek Srivastava, Esquire Jay B. Jones, Esquire Peter J. Mulcahy, Esquire Andrew L. Spivack, Esquire Jaime McGuinness, Esquire Chrisovalante P. Fliakos, Esquire Joshua I. Goldman, Esquire Courtenay R. Dunn, Esquire Andrew C. Bramblett, Esquire ATTORNEY FOR PLAINTIFF Exhibit "A" PHELAN HALLINAN dt SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., I&No. 62205 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 163828 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007 HE2 3476 STATEVIEW BLVD FORT MILL, SC 29715 Plaintiff V. ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 Defendant Q s' ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. 07- Q80 C it I - erm CUMBERLAND COUNTY CIVIL ACM N - LAW COMPLAINT IN MORTGAGE RE('L )SURE V1;$Vi Y FILE COFy PLEASE RETURN ?Lei.dilil !iJ Jvf?f ESE ctrFd.? ®rc?f COPY Of tte -r! I Of rec,,(Jrc File N: 163828 PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 X215) 563-7000 163828 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 3476 STATEVIEW BLVD FORT MILL, SC 29715 Plaintiff V. ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 Defendant ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL, DIVISION TERM NO. CUMBERLAND COUNTY CIVIL ACTION - LAW COMPLAINT l [N MORTGAGE FORECLOSURE A h"reby certify to r? within to be a tree and correct copy of the riginal flied of recorc File 0: 163828 NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warped that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9108 File 1/: 163128 IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 et seq. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WELL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS File k: 163M COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL ESTATE. File #: 163829 1. Plaintiff is DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 3476 STATEVIEW BLVD FORT MILL, SC 29715 2. The name(s) and last known address(es) of the Defendant(s) are: ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 09/18/2006 mortgagor(s) made, executed, and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS A NOMINEE FOR DECISION ONE MORTGAGE COMPANY, LLC which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Book: 1967, page: 345. PLAINTIFF is now the legal owner of the mortgage and is in the process of formalizing an assignment of same. The mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(8); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 4. The premises subject to said mortgage is described as attached. 5. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 07/01/2007 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. Fie N: 163928 6. The following amounts are due on the mortgage: Principal Balance $105,518.53 Interest $3,634.98 06/01/2007 through 10/19/2007 (Per Diem $25.78) Attorney's Fees $1,250.00 Cumulative Late Charges $0.00 09/18/2006 to 10/19/2007 Cost of Suit and Title Search $550.00 Subtotal $110,953.51 Escrow Credit $0,00 Deficit $171.88 Subtotal $171.88 TOTAL $111,125.39 7. 8. If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. Plaintiff is not seeking a judgment of personal liability (or an in personam judgment) against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. File #: 163M 9. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) Nudhave failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 10. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. WHEREFORE, PLAIld'IW demands an in rem Judgment against the Defendant(s) in the sum of $111,125.39, together with interest from 10/19/2007 at the rate of $25.78 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. PHELAN HALLINAN & SCBNM LLP . By:- IsTrancis S. 4 LAWRENCE T. PHELAN, ESQUIRE DANIEL G. SCHNHEG, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff File S: 163928 LEGAL DESCRIPTION ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEOP04ING at a point 95 feet West of the northwest corner of Second (formerly called Cherry Alley) and Hosler Avenue; thence extending westwardly 63 feet along the northern line of Bosler Avenue to a point; thence at right angles to Hosler Avenue along the eastern line of property now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. Being designated as Tax Parcel I.D. Number: 12-21-0265-178 215 BOSLER AVENUE, LEMOYNE, PA 17043 File N: 163328 VERYF"ICATION . China Brown hereby states that he/she is Vice President of Loan Documentation of WELLS FARGO FINANCIAL INC., servicing agent for Phmftff in this matter, that he/she is authorized to take this Verification, and that the stets made in the foregoing Civil Action in Mortgage Foreclosure are true and correct to the best of his/her knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unworn falsification to authorities. 1 Name: China Brown DATE: October 23. 2007 Title: . Vice President of Loan Documentation Company: WELLS FARGO FINANCIAL INC. Loan: File M 163828 Exhibit "B" PHELAN HALLINAN & SCHMIEG, LLP. By: DANIEL G. SCHMIEG Identification No. 62205 Attorney for Plaintiff' ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 f215) M02M00 GOPY DEUTSCHE BANK NATIONAL TRUST : COMPANY, AS TRUSTEE FOR MORGAN CU1VI?ERLAND CO STANLEY MORTGAGE PASS-THROUGH COURT OF COMMO CERTIFICATES, SERIES 2007 HE2 -a 3476 STATEVIEW BLVD CIVIL DIVISION c. ` '- T FORT MILL,SC 29715,- $ NO. 07-6180- CIVIL' o Plaindfr, v ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 M Y tiff ? Defendant(:). PRAECIPE FOR IN REM JUDGMENT FOR FAE[,URE TD ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter an in rem judgment in favor Of the Plaintiff and against ROBERT E. FR.sNi AWL C Defendant(s) for failure to file as Answer to Plaintiff's Complaint within 20 daj m from service thereof and for Foreclosure and Sale of the mortgaged premises, and assess plaintiffs damages as follows: As set forth in Complaint $111,125.39 Interest from 10/20107 to 1/11/08 $2,165.52 TOTAL $113,290.91 I hereby certify that (1) the addresses of the Plaintiff and Defendant(s) are as shown above, and (2) that notice has been given in accordance with Rule 237. copy attached. /11L A SCHMIEG, ESQUIIIE Attorney for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: ?9 O 163828 VERIFICATION I hereby state that I am the attorney for Plaintiff in this action, that I am authorized to make this verification, and that the statements made in the foregoing Motion to Reassess Damages are true and correct to the best of my knowledge, information and belief. The undersigned understands that this statement herein is made subject to the sworn penalties of 18 Pa.C.S. 44904 relating to the unsworn falsification of authorities. Phelan Hal1j & SC eg, LLP DATE: rj 22 - c7 g By: Lawrence T. Phelan, Esquire Yrancis S. Hallinan, Esquire Daniel G. Schmieg, Esquire Michele M. Bradford, Esquire Judith T. Romano, Esquire Sheetal R. Shah-Jani, Esquire Jenine R. Davey, Esquire Lauren R. Tabas, Esquire Vivek Srivastava, Esquire Jay B. Jones, Esquire Peter J. Mulcahy, Esquire Andrew L. Spivack Esquire Jaime McGuinness,, Esquire Chrisovalante P. Fliakos, Esquire Joshua I. Goldman, Esquire Courtenay R. Dunn, Esquire Andrew C. Bramblett, Esquire ATTORNEY FOR PLAINTIFF Exhibit "C" I tlt-- 8 I, a? a a c? o ? 44 ?a a U ¢aa? a(?a V L. Zd0 I?3? C £0 l6 l 3UU3 diZ W021 q U3 8E`? - lIVW 6002 £Z inf O 1081Zb000 ZS?ZO 8 o WL ZO 9. v?0 6;3, .. ? f O E F 9 6 \ ? L L q rn 5N°_? AA , .y •d o `.3 vi yy. N U H G ? C O L .., V ? O T v ? 'd O a• a o$?w w c h .5 P o°o?a w ?xo U PC W v W Z '? O w ? c ? d z w ? p" w d a a ;; .. 08. rol z z w w ? w w 0 z a ° a al iu ?B za ? a -- N M v to ?O t? oo al O - N i? N ey Phelan Hallinan & Schmieg, LLP By: Lawrence T. Phelan, Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff V. ROBERT E. FRANK, III ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 07-6180- CIVIL TERM Defendant CERTIFICATION OF SERVICE I hereby certify that true and correct copies of Plaintiffs Motion to Reassess Damages, and Brief in Support thereof, were sent to the following individuals on the date indicated below. ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 DATE: rf- 22 - 0 c' ROBERT E. FRANK, III 507 ROSS AVENUE NEW CUMBERLAND, PA 1'7070 Phelan linan & Schmieg, LLP By: Lawrence T. Phelan, Esquire Francis S. Hallinan, Esquire Daniel G. Schmieg Esquire Michele M. Bradford, Esquire Judith T. Romano, Esquire Sheetal R. Shah-Jani, Esquire Jenine R. Davey, Esquire Lauren R. Tabas, Esquire Vivek Srivastava, Esquire Jay B. Jones, Esquire Peter J. Mulcahy, Esquire Andrew L. Spivack, Esquire Jaime McGuinness, Esquire Chrisovalante P. Flit kos, Esquire Joshua I. Goldman, Esquire Courtenay R. Dunn, Esquire Andrew C. Brambldtt, Esquire ATTORNEY FOR PLAINTIFF OF THE f' ^: 2QU9 AUG -4 A 9: 52 P NNS)YLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DEUTSCHE BANK NATIONAL TRUST COMPANY, AS CUMBERLAND COUNTY TRUSTEE FOR MORGAN STANLEY MORTGAGE COURT OF COMMON PLEAS PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff CIVIL DIVISION ROBERT E. FRANK, III Defendant(s) NO. 07-6180-CIVIL TERM AFFIDAVIT OF SERVICE OF LIENHOLDERS PURSUANT TO RULE 3129.1 AND RETURN OF SERVICE PURSUANT TO Pa RCP 405 OF NOTIC'F. OF SA IS COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND ) SS: I, the undersigned attorney for DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2, hereby verify as follows: Plaintiff in the above action sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at: 715 BOST FR AVFNiTF, I.F.MOYNF., PA 17043. As required by Pa. R.C.P. 3129.1(a) Notice of Sale has been given to all known Lienholders and any known interested party in the manner required by Pa. R.C.P. 3129.2(c) on each of the persons or parties named, at that address, set forth on the Affidavit and as amended if applicable. A copy of the Certificate of Mailing (Form 3817) and/or Certified Mail Return Receipt stamped by the U.S. Postal Service is attached hereto Exhibit "A". PHELAN, HALLINAN & SCHMIEG, LLP Date: By /?'?? wrence T. Phelan, Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id No. 206739-' Andrew C. Bramblett, Esq., Id No. 208375 Attorneys for Plaintiff IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. i may no cold in the absence of a representative of the piaintiff at the Sheriff's Sale, The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. 163828 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, V. ROBERT E. FRANK, III CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 07-6180-CIVIL TERM Defendant(s). AMENDED AFFIDAVIT PURSUANT TO RULE 3129 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2, Plaintiff in the above action, by its attorney, DANIEL G. SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at ,215 BOSLER AVENUE, LEMOYNE, PA 17043. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) ROBERT E. FRANK, 111 215 BOSLER AVENUE LEMOYNE, PA 17043 2. Name and address of Defendant(s) in the judgment: Same as above 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 4. Name and address of last recorded holder of every mortgage of record: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) GEORGE E. HOMERICH AND 312 SUNSET DRIVE GAYLE D. HOMERICH NEW CUMBERLAND, PA 17070 5. Name and address of every other person who has any record lien on the property: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) BOROUGH OF LEMOYNE 510 HERMAN AVE LEMOYNE, PA 17043 ,6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name None Last Known Address (if address cannot be reasonably ascertained, please indicate) 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Tenant/Occupant Domestic Relations of Cumberland County Commonwealth of Pennsylvania Department of Welfare Commonwealth of Pennsylvania Bureau of Individual Tax Inheritance Tax Division Internal Revenue Service Federated Investors Tower Department of Public Welfare TPL Casualty Unit Estate Recovery Program Last Known Address (if address cannot be reasonably ascertained, please indicate) 215 BOSLER AVENUE LEMOYNE, PA 17043 13 North Hanover Street Carlisle, PA 17013 PO Box 2675 Harrisburg, PA 17105 6`h Floor, Strawberry Sq., Dept. 28061 Harrisburg, PA 17128 13`h Floor, Suite 1300 1001 Liberty Avenue Pittsburgh, PA 15222 P.O. Box 8486 Willow Oak Building Harrisburg, PA 17105 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. DATE: ?,[.> i? PHE A INAN & SCHMIEG, LLP By: I t Lawren e . P , Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq. I.D. 208375 Attorneys for Plaintiff r 0 a ?C CD "I ro W N A 00 Z W IJ `.+ O /? D .K G. Q a 000 l7j 000 A a ,??_., Cr1 G A `J d m 0:?? ? 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CD (?D p CD \0 R O ? accn. Z 00 p' n w cn a? rz? r n o° ? x 0 r 00, z -5 A" t Jt7 r AUU 0-5 ION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff V. ROBERT E. FRANK, III Defendant Court of Common Pleas Civil Division CUMBERLAND County No. 07-6180- CIVIL TERM RULE AND NOW, this day of 2009, a Rule is entered upon the Defendant to show cause why an Order should not be entered granting Plaintiffs Motion to Reassess Damages. Rule Returnable on the day of 0,V A4J 2009, at. in *a.Main ?. a Courtronof the Cumberland County Courthouse, Carlisle, l ?l i Lawrence T. Phelan, Esquire Francis S. Hallinan, Esquire `/Daniel G. Schmieg, Esquire Michele M. Bradford, Esquire Judith T. Romano, Esquire Sheetal R. Shah-Jani, Esquire Jenine R. Davey, Esquire Lauren R. Tabas, Esquire Vivek Srivastava, Esquire Jay B. Jones, Esquire Peter J. Mulcahy, Esquire Andrew L. Spivack, Esquire Jaime McGuinness, Esquire Chrisovalante P. Fliakos, Esquire Joshua I. Goldman, Esquire Courtenay R. Dunn, Esquire Andrew C. Bramblett, Esquire Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 TEL: (215) 563-7000 FAX: (215) 563-3459 -'ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 COPIES MZULL R OBERT E. FRANK, III 507 ROSS AVENUE NEW CUMBERLAND, PA 17070 163828 OF THE ? , '(-,Y,ARY ?C, 99 A. u L -6 Fil-i 1: 32 I 'o i' Ct ?t f 1 t Phelan Hallinan & Schmieg, LLP By: Lawrence T. Phelan, Esq., Id. No. 32227 ATTORNEY FOR PLAINTIFF Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 DEUTSCHE BANK NATIONAL TRUST Court of Common Pleas COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH Civil Division CERTIFICATES, SERIES 2007-HE2 Plaintiff CUMBERLAND County V. No. 07-6180- CIVIL TERM ROBERT E. FRANK, III Defendant t CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of our Motion to Reassess Damages noting a Rule Return date of August 24, 2009 was sent to the following individual on the date indicated below. ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 ROBERT E. FRANK, III 507 ROSS AVENUE NEW CUMBERLAND, PA 17070 Phelan Hallinan & Schmieg, LLP DATE: __Ie? /?, By: wrence T. Phelan, Esquire Francis S. Hallinan, Esquire Daniel G. Schmieg, Esquire Michele M. Bradford, Esquire Judith T. Romano, Esquire Sheetal R. Shah-Jani, Esquire Jenine R. Davey, Esquire Lauren R. Tabas, Esquire Vivek Srivastava, Esquire Jay B. Jones, Esquire Peter J. Mulcahy, Esquire Andrew L. Spivack, Esquire Jaime McGuinness, Esquire Chrisovalante P. Fliakos, Esquire Joshua I. Goldman, Esquire Courtenay R. Dunn, Esquire Andrew C. Bramblett, Esquire ATTORNEY FOR PLAINTIFF RLE4-OFEICE OF THE PROTHONOTARY 2009 AUG 18 AM 10: 5 7 CUM :: M z..{WN;Y PE%SY1_VA,% A DEUTSCHE BANK NATIONAL TRUST, COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff vs. ROBERT E. FRANK, III, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-6180 Civil Term ENTRY OF APPEARANCE AS LOCAL COUNSEL Dear Sir: I hereby enter my appearance as local counsel, in conjunction with Phelan Hallinan & Schmieg, LLP, for the limited purpose of representing the Plaintiff at Oral Argument on Plaintiff's Motion to Reassess Damages on August 24, 2009 at 8:45 a.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. Date: August 18, 2009 Dale F. ShugI rt Jr.1 Supreme CourtJ ? I. 19373 10 West High Street Carlisle, PA 17013 (717) 241-4311 CC: Courtenay R. Dunn, Esquire Robert E. Frank, III HLF THE P,`l,07-l!`- )TAPY 2009 AG 18 PM 2. 3 a CUMLI - '' 4f IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DEUTSCHE BANK NATIONAL TRUST Court of Common Pleas COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH Civil Division CERTIFICATES, SERIES 2007-HE2 Plaintiff CUMBERLAND County V. No. 07-6180- CIVIL TERM ROBERT E. FRANK, III Defendant ORDER AND NOW, this _day 70f 2009 the Prothonotary is ORDERED to amend the in rem judgment and the Sheriff is ORDERED to amend the writ nunc pro tunc in this case as follows: Principal Balance $105,518.53 Interest Through September 2, 2009 $22,840.54 Per Diem $28.91 Late Charges $0.00 Legal fees $2,650.00 Cost of Suit and Title $2,553.50 Sheriffs Sale Costs $1,781.79 Property Inspections/ Property Preservation $261.25 Appraisal/Brokers Price Opinion $285.00 Mortgage Insurance Premium / $0.00 Private Mortgage Insurance W Non Sufficient Funds Charge Suspense/Misc. Credits Escrow Deficit TOTAL $0.00 ($0.00) $3,187.75 $139,078.36 Plus interest from September 2, 2009 through the date of sale at six percent per annum. 11 Note: The above figure is not a payoff quote. Sheriffs commission figure. 1. Lawrence T. Phelan, Esquire Francis S. Hallinan, Esquire Daniel G. Schmieg, Esquire Michele M. Bradford, Esquire Judith T. Romano, Esquire Sheetal R. Shah-Jani, Esquire Jenine R. Davey, Esquire Lauren R. Tabas, Esquire V ivek Srivastava, Esquire Jay B. Jones, Esquire Peter J. Mulcahy, Esquire Andrew L. Spivack, Esquire Jaime McGuinness, Esquire Chrisovalante P. Fliakos, Esquire Joshua I. Goldman, Esquire Courtenay R. Dunn, Esquire Andrew C. Bramblett, Esquire Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 TEL: (215) 563-7000 FAX: (215) 563-3459 ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 in the above ROBERT E. FRANK, III 507 ROSS AVENUE NEW CUMBERLAND, PA 17070 &eJ 40 p y ? 5??5Laft OF THE .'F'.` K)TAPY 2009 AUG 24 A l S: 38 CUM;- ` COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS: I, Robert P. Ziegler, Recorder of Deeds in and for said County and State do hereby certify that the Sheriff s Deed in which MORGAN STANLEY ABS CAPITAL I INC TRUST 2007-HE2 TR is the grantee the same having been sold to said grantee on the 4TH day of NOV A.D., 2009, under and by virtue of a writ Execution issued on the 27TH day of MARCH, A.D., 2009, out of the Court of Common Pleas of said County as of Civil Term, 2007 Number 6180, at the suit of MORGAN STANLEY MTG PASS-THROUGH CERTIFICATES SERIEW 2007-HE2 TR against ROBERT E FRANK III is duly recorded as Instrument Number 200939663. IN TESTIMONY WHEREOF, I have hereunto set my hand and seal of said office this 0 day of A.D. Recorder of Deeds ;3,;;4v j Cwnbar:arW County, Car6w, PA Any Com,tiiwi 4z Fw* Monday of Jan. 2010 SHERIFF'S OFFICE OF CUMBERLAND COUNTY R Thomas Kline Sheriff Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor Deutsche Bank National Trust Company, vs. Robert E Frank, III Case Number 2007-6180 SHERIFF'S RETURN OF SERVICE 06/26/2009 04:49 PM - Michael Barrick, Deputy Sheriff, who being duly sworn according to law, states that on 6/26/09 at 1649 hours, he posted a true copy of the within Real Estate Writ, Notice, Poster and Description, in the above entitled action, upon the property of Robert E. Frank, III, located at, 215 Bosler Avenue, Lemoyne, Cumberland County, Pennsylvania according to law. 06/30/2009 10:57 AM - William Cline, Deputy Sheriff, who being duly sworn according to law, states that on 6/30/09 at 1101 hours, he served a true copy of the within Real Estate Writ, Notice and Description, in the above entitled action, upon the within named defendant, to wit: Robert E. Frank, III, by making known unto, Robert E. Frank, IV, adult in charge, at, 215 Bosler Avenue, Lemoyne, Cumberland County, Pennsylvania its contents and at the same time handing to him personally the said true and correct copy of the same. 08/14/2009 Property sale postponed to 10/7/2009. 10/06/2009 Property sale postponed to 11/4/2009- 11/19/2009 R. Thomas Kline, Sheriff, who being duly sworn according to law, states that after due and legal notice had been given according to law, he exposed the within described premises at public venue or outcry at the Courthouse, Carlisle, Cumberland County, Pennsylvania on November 4, 2009 at 10:00 o'clock A.M. He sold the same for the sum of $1.00 to Attorney Daniel Schmieg, on behalf of Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I inc., Trust 2007-HE2, of, 3476 Stateview Blvd., Fort Mill, SC 29715, being the buyer in this execution, paid to Sheriff R. Thomas Kline the sum of $ 831.07 SHERIFF COST: $831.07 SO ANSWERS, November 19, 2009 R THOMAS KLINE, SHERIFF U- ?- y (cj CountySuite Shenff Telecsoft. Inc. 7 1,1 If ( ,?39 y23 ;?A 2099 QrC -2 F? 2: 2 C DEUTISCIIE BANK NATIONAL TRUST COMPAN , AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 Plaintiff, V. ROBERT E. FRANK, III Defendant(s). CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 07-6180-CIVIL TERM AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. 1) DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2, Plaintiff in the above action, by its attorney, DANIEL G. SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at ,215 BOSLER AVENUE, LEMOYNE, PA 17043. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 2. Name and address of Defendant(s) in the judgment: Same as above 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 4. Name and address of last recorded holder of every mortgage of record: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) GEORGE E. HOMERICH AND 312 SUNSET DRIVE GAYLE D. HOMERICH NEW CUMBERLAND, PA 17070 5. Name and address of every other person who has any record lien on the property: I . Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) Tenant/Occupant Domestic Relations of Cumberland County Commonwealth of Pennsylvania Department of Welfare Commonwealth of Pennsylvania Bureau of Individual Tax Inheritance Tax Division Internal Revenue Service Federated Investors Tower Department of Public Welfare TPL Casualty Unit Estate Recovery Program 215 BOSLER AVENUE LEMOYNE, PA 17043 13 North Hanover Street Carlisle, PA 17013 PO Box 2675 Harrisburg, PA 17105 6"' Floor, Strawberry Sq., Dept. 28061 Harrisburg, PA 17128 1P Floor, Suite 1300 1001 Liberty Avenue Pittsburgh, PA 15222 P.O. Box 8486 Willow Oak Building Harrisburg, PA 17105 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. March 25, 2009 DATE DANIEL G. SCHMIEG, ESQUIRE Attorney for Plaintiff DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-111E2 Plaintiff, V. ROBERT E. FRANK, III Defendant(s). CUMBERLAND COUNTY No. 07-6180-CIVIL TERM March 25, 2009 TO: ROBERT E. FRANK, III 215 BOSLER AVENUE LEMOYNE, PA 17043 "THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOUHAVE PREVIOUSLYRECEIVED A DISCHARGE IN BANKRUPTCYAND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE ANATTEMPT TO COLLECT A DEBT, BUT ONLYENFORCEMENT OFA LIENAGAINST PROPERTY. ** Your house (real estate) at, 215 BOSLER AVENUE, LEMOYNE, PA 17043, is scheduled to be sold at the Sheriffs Sale on SEPTEMBER 2, 2009 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $127,719.83 obtained by DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2 (the mortgagee) against you. In the event the sale is continued, an announcement will be made at said sale in compliance with Pa.R.C.P., Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriffs Sale, you must take immediate action: 1. The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: (215) 563-7000. 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause. 3. You may also be able to stop the sale through other legal proceedings. You may need an attorney to assert your rights. The sooner you contact one, the more chance LEGAL DESCRIPTION ALL that certaiA lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest corner of Second (formerly called Cherry Alley) and Hosler Avenue; thence extending westwardly 63 feet along the northern line of Bosler Avenue to a point; thence at right angles to Hosler Avenue along the eastern line of property now or formerly of A.E. Barnhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. TITLE TO SAID PREMISES IS VESTED IN Robert E. Frank, III, a single man, by Deed from George E. Homerich and Gayle D. Homerich, husband and wife, dated 09/18/2006, recorded 09/26/2006, in Deed Book 276, page 4027. PREMISES BEING: 215 BOSLER AVENUE, LEMOYNE, PA 17043 PARCEL NO. 12-21-0265-178 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) N007-6180 Civil COUNTY OF CUMBERLAND) CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2, Plaintiff (s) From ROBERT E. FRANK, III (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRITPION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $127,719.83 L.L. $.50 Interest FROM 12/11/2008-09/02/2009 (PER DIEM - $21.00) - $5,586.00 AND COSTS Atty's Comm % Due Prothy $2.00 Atty Paid $2,094.56 Other Costs Plaintiff Paid Date: MARCH 27, 2009 - d445& s R. Lon onotary (Seal) By: Deputy REQUESTING PARTY: Name DANIEL G SCHMIEG, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, L.L.P. ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 62205 Real Estate Sale # On May 5, 2009 the Sheriff levied upon the defendant's interest in the real property situated in Borough of Lemoyne, Cumberland County, PA Known and numbered as, 215 Bosler Avenue, Lemoyne, more fully described on Exhibit "A" filed with this writ and by this reference incorporated herein. Date: May 5, 2009 By: Real Estate Coordinator b? Ci 0?gwbbl PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.1784 COMMONWEALTH OF PENNSYLVANIA ss. COUNTY OF CUMBERLAND : Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, viz: July 24, July 31 and August 7, 2009 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true. Marie Coyne, SWORN TO AND SUBSCRIBED before me this da of August, 200009 Notary NOTARIAL SEAL DEBORAH A COLLINS Notary Public CARLISLE BORO, CUMBERLAND COUNTY My Commission Expires Apr 28, 2010 x*=WW as Writ No. 2007-6180 Civil Deutsche Bank National Trust Company, as Trustee for Morgan Stanley Mortgage Pass-Through Certificates, Series 2007-HE2 vs. Robert E. Frank, III Atty.: Daniel Schmieg LEGAL DESCRIPTION ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest corner of Sec- ond, Orly called Cherry Alley) and Hader Amow dwom eaomd- iug w rpsdly 63 feet along the northern line of goo&or Avenue to a point; thence st Agitt SO&U i ID I 1"K Avenue along the eastern line of prop- erty now or formerly of A.E. Bamhart. 130 feet to a point on the south side of a 15 foot alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. TITLE TO SAID PREMISES IS VESTED IN Robert B. Frank, III, a single man, by Deed from George B. Homerich and Gayle D. Homerich, husband and wife, dated 09/18/2006, recorded 09/26/2006, in Deed Book 276, page 4027. PREMISES BEING: 215 BOSLER AVENUE, LEMOYNE, PA 17043. PARCEL NO. 12-21-0265-178. -The Patriot-News Co. 812 Market St.` Harrisburg, PA 17101 Inquiries - 717-255-8213 Z4e Patriot-News Now you know CUMBERLAND COUNTY SHERIFFS OF CUMBERLAND COUNTY COURT HOUSE CARLISLE PA 17013 THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Under Act No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin) ss Marianne Miller, being duly sworn according to law, deposes and says: That she is a Staff Accountant of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot-News and The Sunday Patriot-News newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Metro editions which appeared on the date(s) indicated below. That neither she nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That she has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY This ad ran on the date(s) shown below: 07/24/09 / C? Smrn to and subscribed before me this 14 day of August, 2009 A.D. Notary Public COMMONWEAL THH OP PENNSYLVANIA L Notarial Seal r :Shenle L. KisnerNotary Public COI Harrisburg, Dauphin County MY ommission Expires Nov. 26, 2011 Member, Pennsylvania Association of Notaries 07/31/09 08/07/09 Sale No. 38 Writ No. 20074150 Civil Term Deutsche Stank National Trust Company, as Trustee for Morgan Stanley Mortgage Pass-Through Certificates, offs 2007-HE2 vs. Robert E Frank, III Atty. Daniel Schmleg LEGAL DESCRIPTION ALL that certain lot or tract of land situate in the Borough of Lemoyne, County of Cumberland and State of Pennsylvania, more particularly bounded and described as follows, to-wit: BEGINNING at a point 95 feet West of the northwest comer of Second (formerly called Cherry Alley) and Hosier Avenue; thence extending westwardly 63 feet along the northem line of Bosler Avenue to a point; thence at right angles to Hosler Avenue along the eastern line of property now or formerly of A.E. Barnhart. 110 feet to a point on the south side of a 15 fo,, alley, thence eastwardly along the southern line of said alley and parallel to Hosler Avenue 63 feet to a point; thence at right angles to said alley along the western.line of property now or formerly of Richard C. Hambright 130 feet to a point at the place of beginning. TITLE TO SAID PREMISES IS VESTED IN Robert B. Frank.. III, a single man, by Deed from George B Hometich and Gayle D. Homerich, husband and wife, dated 0911812006, recorded 09/2612006, it Deed Book 276, page 4027. PREMISES BEING: 215 BOSLER AVENUE, LEMOYNI T PA 17043 PARCEL NO, 12-21-0265-178 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND } SS: I, Robert P. Ziegler, Recorder of Deeds in and for said County and State do hereby certify that the Sheriff s Deed in which MORGAN STANLEY MTG PASS-THROUGH CERTIFICATES SERIEW 2007-HE2 TR is the grantee the same having been sold to said grantee on the 4TH day of NOV A.D., 2009, under and by virtue of a writ Execution issued on the 27TH day of MARCH, A.D., 2009, out of the Court of Common Pleas of said County as of Civil Term, 2007 Number 6180, at the suit of MORGAN STANLEY MTG PASS-THROUGH CERTIFICATES SERIES 2007-HE2 TR against ROBERT E FRANK III is duly recorded as Instrument Number 201018444. IN TESTIMONY WHEREOF, I have hereunto set my hand and seal of said office this / day of Recorder of Deeds iMe~MnfOw4~,0~Ar~a*~I~q,~ w~~~.aa~~a~r.~~.~