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HomeMy WebLinkAbout07-6755.,% .. 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 162556 LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE 1100 VIRGINIA DRIVE P.O. BOX 8300 FORT WASHINGTON, PA 19034 Plaintiff V. UNKNOWN HEIRS, SUCCESSORS, ASSIGNS, AND ALL PERSONS, FIRMS, OR ASSOCIATIONS CLAIMING RIGHT, TITLE, OR INTEREST FROM OR UNDER CHARLES WERNER, DECEASED 105 FREDERICK AVENUE CARLISLE, PA 17013 Defendant ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM civil ?iam NO. bq- to T55 CUMBERLAND COUNTY CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 162556 I . 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 #: 162556 . 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 #: 162556 . . 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 #: 162556 1. Plaintiff is LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE 1100 VIRGINIA DRIVE P.O. BOX 8300 FORT WASHINGTON, PA 19034 2. The name(s) and last known address(es) of the Defendant(s) are: UNKNOWN HEIRS, SUCCESSORS, ASSIGNS, AND ALL PERSONS, FIRMS, OR ASSOCIATIONS CLAIMING RIGHT, TITLE, OR INTEREST FROM OR UNDER CHARLES WERNER, DECEASED 105 FREDERICK AVENUE CARLISLE, PA 17013 who is/are the real owner(s) of the property hereinafter described. 3. On 06/26/2002 CHARLES WERNER made, executed, and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR MERITAGE MORTGAGE CORPORATION which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Book: 1763, Page: 2011. PLAINTIFF is now the legal owner of the mortgage and is in the process of formalizing an assignment of same. The mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 4. The premises subject to said mortgage is described as attached. File #: 162556 I . 5 6. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 04/01/2007 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. The following amounts are due on the mortgage: Principal Balance $48,762.57 Interest $4,217.50 03/01/2007 through 11/05/2007 (Per Diem $16.87) Attorney's Fees $1,250.00 Cumulative Late Charges $160.56 06/26/2002 to 11/05/2007 Cost of Suit and Title Search 550.00 Subtotal $54,940.63 Escrow Credit $0.00 Deficit $1,033.15 Subtotal $1,033.15 TOTAL $55,973.78 7. If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. File #: 162556 I. 8. Plaintiff is not seeking a judgment of personal liability (or an in nersonam judgment) against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. 9. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 10. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. 11. This action does not come under Act 91 of 1983 because the mortgaged premises is not owner-occupied. 12. Mortgagor CHARLES WERNER died on 8/17/07 and, upon information and belief, his heirs or devisees, and personal representative, are unknown. 13. Plaintiff contacted the Register of Wills of Cumberland County and was informed as of 11/5/07, no estate has been raised on behalf of the decedent mortgagor. File #: 162556 .. 14. Plaintiff hereby releases CHARLES WERNER, from liability for the debt secured by the mortgage. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $55,973.78, together with interest from 11/05/2007 at the rate of $16.87 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. By: PHELAN HALLINAN & SCHM , LP /s/Francis S. Hallinan LAWRENCE T. PHELAN, ESQUIRE DANIEL G. SCHMIEG, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff File #: 162556 e. LEGAL DESCRIPTION ALL those two certain tracts of land with the improvements thereon situate in the Fourth Ward of the Borough of Carlisle, Cumberland County, Pennsylvania, bounded and described as follows: TRACT ONE: On the North by a 10 foot alley; on the East by Tract Two herein; on the South by a lot formerly of Alex. Bowman, now or formerly of Charles B. Strayer; and on the West by a10 foot alley. CONTAINING 51 feet, more or less, on the alley running East and West. TRACT TWO: BEGINNING at a point on the southern side of a private alley which runs between West North Street and West Locust Alley, parallel to said street and alley, which point is at the corner of Tract One herein; thence along Tract One herein, southwardly, a distance of 48 feet to a fence post; thence along the same, northwardly, 18 feet to a point at the southern wall of a brick garage now or formerly of Jesse B. Brown; thence along the latter, westwardly, a distance of 5 feet to the corner of said garage; thence by the Western wall of said garage, northwardly, 30 feet to a point on the southern side of the aforementioned private alley; thence along the latter, westwardly, 17 feet to a point at the corner of Tract One herein, the Place of BEGINNING. File #: 162556 r« BEING improved with a dwelling known and numbered as 105 Frederick Avenue, Carlisle, Pennsylvania 17013. Excepting therefrom premises which Steven C. Boyer and Debbie J. Boyer, husband and wife, conveyed to Carlisle Area Religious Council, by deed dated December 28,2001 and recorded on February 29,2002 in Record Book 250, page 2197. BEING THE SAME PREMISES which Carrie O. Yohn a/k/a Carrie Olive Yohn, by her Attorney in Fact, Joyce A. Smith by deed dated May 27, 1999 and recorded June 1, 1999 in the Recorder of Deeds Office in and for Cumberland County in Deed Book 200, page 656 granted and conveyed unto Steven C. Boyer and Debbie J. Boyer. Parcel Number 5-20-1798-300 File #: 162556 4'. VERIFICATION FRANCIS S. HALLINAN, ESQUIRE hereby states that he is attorney for Plaintiff in this matter, that Plaintiff is outside the jurisdiction of the court and/or the verification could not be obtained within the time allowed for the filing of 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 its knowledge, information and belief. Furthermore, counsel intends to substitute a verification from Plaintiff upon receipt. The undersigned understands that this statement is made subject to the penalties of 18 Pa.C.S. Sec. 4904 relating to unworn falsifications to authorities. Francis S. Hallinan, Esquire Attorney for Plaintiff DATE: i S- 4 ...) FN c 0 c .'.. ` .5 a a ! { SHERIFF'S RETURN - NOT FOUND CASE NO: 2007-06755 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND LASALLE BANK NATIONAL ASSOC VS WERNER CHARLES DECEASED ET AL R. Thomas Kline ,Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT WERNER CHARLES DECEASED UNKNOWN HEIRS ETC but was unable to locate Him in his bailiwick. He therefore returns the COMPLAINT - MORT FORE , the within named DEFENDANT UNKNOWN HEIRS ETC 105 FREDERICK AVENUE CARLISLE, PA 17013 NOT FOUND , as to WERNER CHARLES DECEASED 105 FREDERICK AVENUE IS VACANT. Sheriff's Costs: So answers- Docketing 18.00 Service 4.80.y Not Found 5.00 R. Thomas Kline Surcharge 10.00 Sheriff of Cumberland County ?/\10 0 0 ?3 7 . 8 0 Sworn and Subscribed to before PHELAN HALLINAN SCHMIEG 11/13/2007 me this T day of , A.D. PHELAN HALLINAN & SCHMIEG, LLP BY: FRANCIS S. HALLINAN, ESQUIRE Identification No. 62695 ATTORNEY FOR PLAINTIFF One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 Lasalle Bank National Association as Trustee Plaintiff VS. Unknown Heirs, successors, assigns, and All persons, firms, or associations claiming Right, title, or interest from or under Charles Werner, deceased Defendant(s) PRAECIPE TO THE PROTHONOTARY: : Court of Common Pleas : Civil Division : Cumberland County No. 07-6755-C. T. Please mark the above referenced case Discontinued and Ended without prejudice. Please mark the above referenced case Settled, Discontinued and Ended. Please mark Judgments satisfied and the Action settled, discontinued and ended. Please Vacate the judgment entered and mark the action discontinued and ended without prejudice. X Please withdraw the complaint and mark the action discontinued and ended without prejudice. Date: L ?' - ancis S. Hallin , Esquire Attorney for Plaintiff PHS# 162556 C. ? -rt 4lr ? ? f T_? " ? CA7 ?