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Home My WebLink About08-0468-1 . PHELAN HALLINAN & SCHMIEG, LLP FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 MICHELE M. BRADFORD, ESQ., Id. No. 69849 SHEETAL R. SHAH-JANI, ESQ., Id. No. 81760 JUDITH T. ROMANO, ESQ., Id. No. 58745 JENINE R. DAVEY, ESQ., Id. No. 87077 MICHAEL E. CARLETON, ESQ., Id. No. 203009 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 161312 COUNTRYWIDE HOME LOANS, INC. 7105 CORPORATE DRIVE PLANO, TX 75024 Plaintiff V. DAVID L. KIRK JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 Defendants ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. D$ - '4(o8 bvi l Te m CUMBERLAND COUNTY CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 161312 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 #: 161312 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 #: 161312 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 #: 161312 1. Plaintiff is COUNTRYWIDE HOME LOANS, INC. 7105 CORPORATE DRIVE PLANO, TX 75024 2. The name(s) and last known address(es) of the Defendant(s) are: DAVID L. KIRK JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 10/14/2003 mortgagor(s) made, executed, and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS A NOMINEE FOR AMERICA'S WHOLESALE LENDER which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Book: 1842, Page: 1346. 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 05/01/2007 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 #: 161312 6. The following amounts are due on the mortgage: Principal Balance $154,084.80 Interest $8,564.13 04/01/2007 through 01/16/2008 (Per Diem $29.43) Attorney's Fees $1,250.00 Cumulative Late Charges $210.64 10/14/2003 to 01/16/2008 Cost of Suit and Title Search 750.00 Subtotal $164,859.57 Escrow Credit $0.00 Deficit $0.00 Subtotal 0.00 TOTAL $164,859.57 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 #: 161312 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 $164,859.57, together with interest from 01/16/2008 at the rate of $29.43 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. PHELAN HALLINAN & SCHMIEG, LLP By: FRANCIS S. HALL A , ESQUIRE DANIEL G. SCHMI SQUIRE MICHELE M. BRADFORD, ESQUIRE SHEETAL R. SHAH-JANI, ESQUIRE JUDITH T. ROMANO, ESQUIRE JENINE R. DAVEY, ESQUIRE MICHAEL E. CARLETON, ESQUIRE Attorneys for Plaintiff File #: 161312 LEGAL DESCRIPTION ALL THAT CERTAIN, situate in Dickinson Township, in the County of Cumberland, Commonwealth of Pennsylvania, bounded and described as follows: BEGINNING at the existing railroad spike in Myerstown Road (T524) at the southern most point of Lot 36A on the hereinafter referred to Plan; thence along line of said Lot 36A North 36 e degrees 00 minutes 06 East 205.56 feet to a point; thence along line of Lot 36B on the hereinafter referred to Plan North 36 degrees 00 minutes 06 seconds East 191.66 feet to a point in line of Lot 34 on the hereinafter referred to Plan; thence along line of said Lot 34 South 28 degrees 06 minutes 52 seconds East 105.16 feet to a point in line of lands now or formerly of Richard Roberts; thence along line of said lands now or formerly of Richard Roberts South 22 degrees 21 minutes 19 seconds West 319.10 feet to a point in Myerstown Road (T524); thence along Myerstown Road (T524) North 67 degrees 38 minutes 14 seconds West 174.83 feet to an existing railroad spike, the point of BEGINNING. CONTAINING a total lot area of 1.072 acres, including the portion of said premises under and subject the right-of-way line of Myerstown Road (T524); and Being Lot No. 36 on a Preliminary/Final Michaux Meadows Re-Subdivision of Lots 34 and 36, as recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania in Plan Book 74, Page 138. File #: 161312 SUBJECT, HOWEVER, to following protective covenants recorded with said Final Subdivision Plan for Michaux Meadows, which the Grantees, for themselves, their heirs and assigns, agree to comply by the acceptance of this deed: No structure of a temporary character or trailer, mobile home, basement, shack, garage, bam or other outbuilding shall be used on any lot at any time as a residence. 2. No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become any annoyance or nuisance to the neighborhood. No Animals, livestock, or poultry of any kind shall be raised, bred or kept on any lot for any commercial purpose. 4. No lot shall be used or maintained as a dumping area for rubbish. Trash, garbage or other waste shall not be kept except in sanitary containers. All incinerators or other equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition. 5. no home having habitable floor space less than 1000 square feet for a one story and 1200 square feet for a two story structure shall be erected or maintained on any lot. 6. No dwelling shall have an exterior finish or exterior color which would be offensive or in poor taste to the atmosphere maintained by the balance of the homes in'Michaux Meadows,' File #: 161312 7. No vehicles shall be abandoned or stored on any lot. All vehicles kept on any lot shall have a current state of inspection sticker. PARCEL #:08-15-0199-040. BEING KNOWN AS 1197 MYERSTOWN ROAD, GARDNERS, PA 17324-9041 File #: 161312 VERIFICATION I hereby state that I am the 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 I am 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 my 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. 7-1 (1,11 A -71 h WAII , I Attorney for Plainti g NO DATE: ? V U O O , 0 r W 7 O(P SHERIFF'S RETURN - NOT FOUND CASE NO: 2008-00468 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND COUNTRYWIDE HOME LOANS INC VS KIRK DAVID 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 KIRK DAVID L but was unable to locate Him in his bailiwick. He therefore returns the COMPLAINT - MORT FORE the within named DEFENDANT 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 GIVEN ADDRESS IS VACANT. KIRK DAVID L NOT FOUND , as to Sheriff's Costs: Docketing 18.00 Service 15.36 Not Found 5.00 Surcharge 10.00 .00 f 4 8. 3 6 So answers--- -7 A_ R. Tho s Kline Sheriff o Cumberland County PHELAN HALLINAN SCHMIEG 02/08/2008 Sworn and Subscribed to before me this day of A. D. SHERIFF'S RETURN - NOT FOUND CASE NO: 2008-00468 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND COUNTRYWIDE HOME LOANS INC VS KIRK DAVID 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 KIRK JODY M but was unable to locate Her in his bailiwick. He therefore returns the l" t-%A,TTIT n TRTT hAnnT vnn the within named DEFENDANT , KIRK JODY M NOT FOUND , as to 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 GIVEN ADDRESS IS VACANT. Sheriff's Costs: Docketing 6.00 Service .00 Not Found 5.00 Surcharge 10.00 a/???a8 9+•r .00 ? 21.00 So answers ?.-- R. Th as Kline Sheriff of Cumberland County PHELAN HALLINAN SCHMIEG 02/08/2008 Sworn and Subscribed to before me this day of A. D. PHELAN HALLINAN & SCHMIEG, LLP By: Francis S. Hallinan, Esquire IDENTIFICATION NO. 62695 1617 JFK Boulevard, Suite 1400 PHILADELPHIA, PA 19103 (215) 563-7000 Countrywide Home Loans, Inc. Plaintiff VS. David L. Kirk Jody M. Kirk Defendant(s) ATTORNEY FOR PLAINTIFF Cumberland County Court of Common Pleas CIVIL DIVISION NO. 08-468-CIVIL TERM 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. ancis S. Hallinan, Esquire Attorney for Plaintiff Dated: 3/28/08 ASSISTANT VICE PP'=0J !-ENT t"Mum hereby states that he/she is VERIFICATION of COUNTRYWIDE HOME LOANS, 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 unsworn falsification to authorities. DATE: f Name: (DER) SELM N, ASSISTANT VICE PRESIDENT Title: ?Cr-pn,-tvn, _I,!t Company: COUNTRYWIDE HOME LOANS, INC. File 4: 161312 a . PHELAN HALLINAN & SCHMIEG, LLP By: Francis S. Hallinan, Esquire IDENTIFICATION NO. 62695 1617 JFK Boulevard, Suite 1400 PHILADELPHIA, PA 19103 (215) 563-7000 Countrywide Home Loans, Inc. Plaintiff VS. David L. Kirk Jody M. Kirk Defendant(s) ATTORNEY FOR PLAINTIFF Cumberland County Court of Common Pleas CIVIL DIVISION NO. 08-468-CIVIL TERM 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 indicated below: David L. Kirk 1197 Myerstown Road Gardens, PA 17324 Jody M. Kirk 1197 Myerstown Road Gardens, PA 17324 ancis S. Hallinan, Esquire Attorney for Plaintiff Dated: 3/28/08 Phelan Hallinan & Schmieg LLP By: Daniel G. Schmieg, Esq., Id. No. 62205 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 Brittany.Boyer@fedphs.com Attorney for Plaintiff Countrywide Home Loans, Inc. Court of Common Pleas Civil Division vs. Cumberland County David L. Kirk No. 08-468 Civil Term Jody M. Kirk MOTION FOR SERVICE PURSUANT TO SPECIAL ORDER OF COURT Plaintiff, by its counsel, Phelan Hallinan & Schmieg, LLP, moves this Honorable Court for an Order directing service of the Complaint and all future pleadings upon the above-captioned Defendants, David L. Kirk and Jody M. Kirk, by first class mail and certified mail to the Defendant's mortgaged premises, 1197 Myerstown Road, Gardners, PA 17324-9041, posting of the mortgaged premises, 1197 Myerstown Road, Gardners, PA 17324-9041, and publication pursuant to Pa. R.C.P. 430, and in support thereof avers as follows: 1. Attempts to serve Defendants, David L. Kirk and Jody M. Kirk, personally with the Complaint have been unsuccessful. The Sheriff of Cumberland County attempted to serve the Defendants at the mortgaged premises, 1197 Myerstown Road, Gardners, PA 17324-9041. As indicated by the Sheriff s Return of Service attached hereto as Exhibit "A", the property appears vacant. 2. Pursuant to Pa. R.C.P. 430, Plaintiff has made a good faith effort to locate the Defendants. An Affidavit of Reasonable Investigation setting forth the specific inquiries made and the results is attached hereto as Exhibit "B". 3 a 3. Plaintiff contacted the Prothontary's Office and as of June 27, 2008, no Judge has previously entered a ruling in this case. 4. In accordance with Cumberland County Local Rule 208.3(9), Plaintiff sent a copy of its Proposed Motion for Special Service and Order to the Defendants on May 14, 2008 and requested Defendant's concurrence. Plaintiff did not receive any written response from the Defendants. A true and correct copy of Plaintiff's letter and postmarked certificate of mailing pursuant to Local Rule 208.3(9) attached hereto, made part hereof, and marked Exhibit "C". 5. Plaintiff has reviewed its internal records and has not been contacted by the Defendants as of June 27, 2008 to bring loan current. 6. Plaintiff submits that it has made a good faith effort to locate the Defendants, David L. Kirk and Jody M. Kirk, but has been unable to do so. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order pursuant to Pa. R.C.P. 430 directing service of the Complaint by first class mail, certified mail, by posting of the premises and by publication. Respectfully submitted, Phelan Hallinan & Schmieg, LLP G. Schmieg, Esquire Attorneys for Plaintiff June 27, 2008 4 Phelan Hallinan & Schmieg LLP By: Daniel G. Schmieg, Esq., Id. No. 62205 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 brittany.boyer@fedphs.com@fedphe.com Attorney for Plaintiff Countrywide Home Loans, Inc. Court of Common Pleas Civil Division VS. Cumberland County David L. Kirk No. 08-468 Civil Term Jody M. Kirk MEMORANDUM OF LAW Pa. R.C.P. 430 specifically provides: (a) If service cannot be made under the applicable rule, the plaintiff may move the Court for a special order directing the method of service. The Motion shall be accompanied by an Affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the Defendants and the reasons why service cannot be made. Note: A Sheriffs return of "Not Found" or the fact that a Defendant has moved without leaving a new forwarding address is insufficient evidence of concealment. Gonzales vs. Polis, 238 Pa. Super. 362, 357 A.2d 580 (1976). "Notice of intended adoption mailed to last known address requires a good faith effort to discover the correct address." Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976). An illustration of good faith effort to locate the defendant includes (1) inquires of postal authorities including inquiries pursuant to the Freedom of Information Act, 39 C.F.R. Part 265, (2) inquiries of relatives, neighbors, friends and employers of the Defendant and (3) examinations of local telephone directories, voter registration records, local tax records, and motor vehicle records. (b) (1) If service of process by publication has been authorized by rule of civil procedure or order of court, the publication shall be by advertising a notice of the action once in the legal publication, if any, designated by the court for the publication of legal notices and in one newspaper of general circulation within the 5 county. The publication shall contain the caption of the action and the names of the parties, state the nature of the action and conclude with a notice. (b) (2) When service is made by publication upon the heirs and assigns of a named former owner or party in interest, the court may permit publication against the heirs or assigns generally if it is set forth in the complaint or an affidavit that they are unknown. As indicated by the attached Sheriffs Return of Service, marked hereto as Exhibit "A", the Sheriff has been unable to serve the Complaint. A good faith effort to discover the whereabouts of the Defendants has been made as evidenced by the attached Affidavit of Reasonable Investigation, marked Exhibit "B". WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order pursuant to Pa. R.C.P. 430 directing service of the Complaint by first class mail, certified mail, by posting of the mortgaged premises and by publication pursuant to Pa. R.C.P. 430. Respectfully submitted, Phelan Hallinan & Schmieg, LLP .......... r B? Daniel G. Schmieg, Esquire Attorney for Plaintiff Date: June 27, 2008 6 SHERIFF'S RETURN - NOT FOUND CASE NO: 2008-00468 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND COUNTRYWIDE HOME LOANS INC VS KIRK DAVID 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 unable to locate Him, in his bailiwick COMPLAINT - MORT FORE but was He therefore returns the NOT FOUND , as to the within named DEFENDANT 1197 MYERSTOWN ROAD KIRK DAVID L GARDNERS, PA 17324-9041 GIVEN ADDRESS IS VACANT. Sheriff's Costs: Docketing Service Not Found Surcharge So answers- 18.00 15.36 5.00 R. Tho s Kline 10.00 Sheriff o Cumberland county .00 48.36 PHELAN HALLINAN SCHMIEG 02/08/2008 Sworn and Subscribed to before me this day of A. D. I/ SHERIFF'S RETURN - NOT FOUND CASE NO: 2008-00468 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND COUNTRYWIDE HOME LOANS INC VS KIRK DAVID 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 KIRK JODY M unable to locate Her in his-bailiwick. COMPLAINT - MORT FORE , but was He therefore returns the' the within named DEFENDANT , KIRK JODY M 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 GIVEN ADDRESS IS VACANT. Sheriff's Costs: Docketing Service Not Found Surcharge NOT FOUND , as to So answers- ' 6.00 00 5.00 R. Th as Kline 10.00 Sheriff of umberland County .00 21.00 PHELAN HALLINAN SCHMIEG 02/08/2008 Sworn and Subscribed to before me this day of A. D. FULL SPECTRUM SERVICES, INC. AFFIDAVIT OF GOOD FAITH INVESTIGATION File Number: 161312 Attorney Firm: Phelan, Hallinan & Schmieg, LLP Subject: David L. Kirk & Jody M. Kirk Current Address: 1197 Myerstown Road, Gardners, PA 17324 Property Address: 1197 Myerstown Road, Gardners, PA 17324 Mailing Address: 1197 Myerstown Road, Gardners, PA 17324 I, Kerri Smith, being duly sworn according to law, do hereby depose and state as follows, I have conducted an investigation into the whereabouts of the above-noted individual(s) and have discovered the following. I. CREDIT INFORMATION A. SOCIAL SECURITY NUMBER Our search verified the following information to be true and correct David L. Kirk & Jody M. Kirk - xxx-xx-4028 B. EMPLOYMENT SEARCH David L. Kirk & Jody M. Kirk - A review of the credit reporting agencies provided no employment information. C. INQUIRY OF CREDITORS Our inquiry of creditors indicated that David L. Kirk & Jody M. Kirk reside(s) at: 1197 Myerstown Road, Gardners, PA 17324. II. INQUIRY OF TELEPHONE COMPANY A. DIRECTORY ASSISTANCE SEARCH Our office contacted directory assistance, which indicated that David L. Kirk & Jody M. Kirk reside(s) at: 1197 Myerstown Road, Gardners, PA 17324. On 02-27- 08 our office made several telephone calls to the subjects' phone number, (717) 486-4474 and received the following information: answering machine. III. INQUIRY OF NEIGHBORS On 02-27-08 our office attempted to contact Ruby J & Barry L. Rupp at (717) 486- 3054,1194 Myerstown Road, Gardners, PA 17324 and received the following information: spoke with an unidentified female who confirmed that David L. Kirk & Jody M. Kirk reside(s) at 1197 Myerstown Road, Gardners, PA17324. IV. ADDRESS INQUIRY A. NATIONAL ADDRESS UPDATE On 02-27-08 we reviewed the National Address database and found the following information: David L. Kirk & Jody M. Kirk-1197 Myerstown Road, Gardners, PA 17324. B. ADDITIONAL ACTIVE MAILING ADDRESSES Per our inquiry of creditors, the following is a possible mailing address: no addresses on file. V. DRIVERS LICENSE INFORMATION A. MOTOR VEHICLE & DMV OFFICE Per the PA Department of Motor Vehicles, we were unable to obtain address information on David L. Kirk & Jody M. Kirk. VI. OTHER INQUIRIES A. DEATH RECORDS As of 02-27-08 Vital Records and all public databases have no death record on file for David L. Kirk & Jody M. Kirk. B. COUNTY VOTER REGISTRATION The county voter registration was unable to confirm a registration for David L. Kirk & Jody M. Kirk residing at: last registered address. VII. ADDITIONAL INFORMATION OF SUBJECT A. DATE OF BIRTH David L. Kirk -12-04-1958 Jody M. Kirk - 07-1955 B. A.K.A. Jody M. Negley * Our accessible databases have been checked and cross-referenced for the above named individual(s). * Please be advised our database information indicates the subject resides at the current address. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing states made by me are willfully false, I am subject to punishment. I herby verify that the statements made herein are true and correct to the best of my knowledge, information and belief and that this affidavit of investigation is made subject to the penalties of 18 Pa C.S. Sec. 4904 relating to unswom falsification to authorities. AFFIANT - Kerri Smith Full Spectrum Services, Inc. Sworn to and subscribed before me this 27th day of February 2008. The above information is obtained from available public records kls and we are only liable for the cost of the affidavit. PHELAN HALLINAN & SCHMIEG, LLP One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard - Suite 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 Fax (215) 563-3352 POSTMASTER 1602 FRANKFORD AVE PHILADELPHIA, PA 19125 Request for Change of Address of Boxholder Information Needed for Service of Legal Process Please furnish the new address or the name and street address (if a boxholder) for the following: NAME: HOWARD, TAMARA A. ADDRESS: 2720 EAST LEHIGH AVENUE, PHILADELPHIA, PA 19125 PHILADELPHIA, PA 19125 NOTE: The name and last known address are required for change of address information. The name, if known, and post office box address are required for boxholder information. The following information is provided in accordance with 39 CFR 265.6(d)(4)(II). There is no fee for providing boxholder information. The fee for providing change of address information is waived in accordance with 39 CFR 265.6(d)(1) and corresponding Administrative Support Manual 352.44a. I . Capacity of Requester (e.g., process server, attorney, party representing self): Attorney 2. Statue or regulation that empowers me to serve (not required when requester is an attorney or a party acting pro se-except a corporation acting pro se must cite statute: n/a 3. The names of all parties to the litigation: CITIMORTGAGF.. INC_ vs. HOWARD, TAMARA A- 4. The court in which the case has been or will be heard: Civil Divisinn - PHILADELPHIA County 5. The docket or other identifying number if one has been issued: hmL 6. The capacity in which this individual is to be served: Defendant in a Mortgage Foreelasnre Action WARNING THE SUBMISSION OF FALSE INFORMATION EITHER (1) TO OBTAIN AND USE CHANGE OF ADDRESS INFORMATION OR BOXHOLDER INFORMATION FOR ANY PURPOSE OTHER THAN THE SERVICE OF LEGAL PROCESS IN CONNECTION WITH ACTUAL OR PROSPECTIVE LITIGATION OR (2) TO AVOID PAYMENT OF THE FEE FOR CHANGE OF ADDRESS INFORMATION COULD RESULT IN CRIMINAL PENALTIES INCLUDING A FINE OF UP TO $10,000 OR IMPRISONMENT OF NOT MORE THAN 5 YEARS, OR BOTH (TITLE 18 U.S.C. SECTION 1001). I certify that the above information is true and that the address information is needed and will be used solely for service of legal process in connection with actual or prospective litigation. One Penn Center at Suburban Station Lawrence T. Phelan, ESQUIRE 1617 John F_ Kennedy Boulevard, Suite 1400 Attorney I.D. No. 32227 p ilade phia, PA 19103-1814 -----------------------------------------------------------FOR POST OFFICE USE ONLY----------------------------------------------------- No change of address order on file NEW ADDRESS OR BOXHOLDER'S Moved, left no forwarding address NAME AND STREET ADDRESS No such address ty Good as Addresses ( _ PHELAN HALLINAN & SCHMIEG, L.L.P. Suite 1400 One Penn Center Plaza at Suburban Station Philadelphia, PA 19103 215-563-7000 Main Fax: 215-563-7009 E-mail lily.hainey@fedphe.com Lily Hainey, 1401 Service Department Representing Lenders in Pennsylvania and New Jersey May 14, 2008 David L. Kirk and Jody M. Kirk 1197 Myerstown Road Gardners, PA 17324-9041 RE: Countrywide Home Loans, Inc. vs. David L. Kirk and Jody M. Kirk Premises Address: 1197 Myerstown Road, Gardners, PA 17324-9041 Cumberland County, No. 08-468 Civil Term Dear Defendant, Enclosed please find a true and correct copy of my proposed Motion for Special Service and Order. In accordance with Cumberland County Local Rule 208.3(9), I am seeking concurrence with the requested relief that is, Special Service. Please respond to me within one week, by MU 21, 2008. Should you have any further questions or concerns, please do not hesitate to contact me. Otherwise, please be guided accordingly. Very truly yours, t Jason Ricco For Daniel G. Schmieg, Esquire 9 Sri c' '= cn IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Countrywide Home Loans, Inc. Civil Division vs. No. 08-468 Civil Term David L. Kirk Jody M. Kirk : ORDER AND NOW, this day of 2008, upon consideration of Plaintiff's Motion for Service Pursuant to Special Order of Court, it is hereby ORDERED and DECREED that said Motion is GRANTED. It is further ORDERED and DECREED that Plaintiff may obtain service of the Complaint and all future pleadings on Defendants, David L. Kirk and Jody M. Kirk, by: 1. Posting of the premises: 1197 Myerstown Road, Gardners, PA 17324-9041. 2. First class mail to David L. Kirk and Jody M. Kirk at the mortgaged premises located at 1197 Myerstown Road, Gardners, PA 17324-9041; and 3. Certified mail to David L. Kirk and Jody M. Kirk at the mortgaged premises located at 1197 Myerstown Road, Gardners, PA 17324-9041; and 4. Publication in accordance with PA. R.C.P. 430. BY THE COURT: Cc: David L. Kirk and Jody M. Kirk 1197 Myerstown Road Gardners, PA 17324-9041 J. 2 Phelan Hallinan & Schmieg LLP By: Daniel G. Schmieg, Esq., Id. No. 62205 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 lily.hainey@fedphe.com Attorney for Plaintiff Countrywide Home Loans, Inc. Court of Common Pleas Civil Division VS. Cumberland County David L. Kirk No. 08-468 Civil Term Jody M. Kirk : MOTION FOR SERVICE PURSUANT TO SPECIAL ORDER OF COURT Plaintiff, by its counsel, Phelan Hallinan & Schmieg, LLP, moves this 0 N Honorable Court for an Order directing service of the Complaint and all future pleadings upon the above-captioned Defendants, David L. Kirk and Jody M. Kirk, by first class mail and certified mail to mortgaged premises, 1197 Myerstown Road, Gardners, PA 17324- 9041, posting of the mortgaged premises, 1197 Myerstown Road, Gardners, PA 17324- 9041, and publication pursuant to Pa. R.C.P. 430, and in support thereof avers as follows: 1. Attempts to serve Defendants, David L. Kirk and Jody M. Kirk, personally with the Complaint have been unsuccessful. The Sheriff of Cumberland County attempted to serve the Defendants at the mortgaged premises, 1197 Myerstown Road, Gardners, PA 17324-9041. As indicated by the Sheriffs Return of Service attached hereto as Exhibit "A", the property is vacant. 2. Pursuant to Pa. R.C.P. 430, Plaintiff has made a good faith effort to locate the Defendant. An Affidavit of Reasonable Investigation setting forth the specific inquiries made and the results is attached hereto as Exhibit "B". rj 3 3. Plaintiff contacted the Prothontary's Office and as of May 14, 2008, no Judge has previously entered a ruling in this case. 4. Plaintiff has reviewed its internal records and has not been contacted by the Defendants as of May 14, 2008 to bring loan current. 5. Plaintiff submits that it has made a good faith effort to locate the Defendants, David L. Kirk and Jody M. Kirk, but has been unable to do so. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order pursuant to Pa. R.C.P. 430 directing service of the Complaint by first class mail, certified mail, by posting of the premises and by publication. Respectfully submitted, Phelan Hallinan & Schmieg, LLP B. Daniel G. Schmieg, Esquire Attorneys for Plaintiff May 14, 2008 4 Phelan Hallinan & Schmieg LLP By: Daniel G. Schmieg, Esq., Id. No. 62205 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 lily.hainey@fedphe.com Countrywide Home Loans, Inc. David L. Kirk Jody M. Kirk Attorney for Plaintiff Court of Common Pleas Civil Division Cumberland County No. 08468 Civil Term VS. MEMORANDUM OF LAW Pa. R.C.P. 430 specifically provides: (a) If service cannot be made under the applicable rule, the plaintiff may move the Court for a special order directing the method of service. The Motion shall be accompanied by an Affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the Defendants and the reasons why service cannot be made. Note: A Sheriffs return of "Not Found" or the fact that a Defendant has moved without leaving anew forwarding address is insufficient evidence of concealment. Gonzales vs. Polis, 238 Pa. Super. 362, 357 A.2d 580 (1976). "Notice of intended adoption mailed to last known address requires a good faith effort to discover the correct address." Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976). An illustration of good faith effort to locate the defendant includes (1) inquires of postal authorities including inquiries pursuant to the Freedom of Information Act, 39 C.F.R. Part 265, (2) inquiries of relatives, neighbors, friends and employers of the Defendant and (3) examinations of local telephone drectories, voter registratim records, local tax records, and motor vehicle records. (b) (1) If service of process by publication has been authorized by rule of civil procedure or order of court, the publication shall be by advertising a notice of the action once in the legal publication, if any, designated by the court for the 5 publication of legal notices and in one newspaper of general circulation within the county. The publication shall contain the caption of the action and the names of the parties, state the nature of the action and conclude with a notice. (b) (2) When service is made by publication upon the heirs and assigns of a named former owner or party in interest, the court may permit publication against the heirs or assigns generally if it is set forth in the complaint or an affidavit that they are unknown. As indicated by the attached Sheriffs Return of Service, marked hereto as Exhibit "A", the Sheriff has been unable to serve the Complaint. A good faith effort to discover the whereabouts of the Defendants has been made as evidenced by the attached Affidavit of Reasonable Investigation, marked Exhibit "B". WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order pursuant to Pa. R.C.P. 430 directing service of the Complaint by first class mail, certified mail, by posting of the mortgaged premises and by publication pursuant to Pa. R.C.P. 430. Respectfully submitted, Phelan Hallinan deg, LLP By. Daniel G. Sc g, squire Attorney for Plaintiff Date: May 14, 2008 6 SHERIFF'S RETURN - NOT FOUND CASE NO: 2008-00468 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND COUNTRYWIDE HOME LOANS INC VS KIRK DAVID 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 KIRK DAVID L but was unable to locate Him, in his bailiwick. He therefore returns the COMPLAINT - MORT FORE L the within named DEFENDANT 1197 MYERSTOWN ROAD GARDNERS/ PA 17324-9041 GIVEN ADDRESS IS VACANT. KIRK DAVID L NOT FOUND , as to Sheriff's Costs: Docketing 18.00 So answers Service 15.36 ~-f Not Found 5.00 Surcharge R. Thomas Kline 10.00 Sheriff o Cumberland County .00 48.36 PHELAN HALLINAN SCHMIEG 02/08/2008 Sworn and Subscribed to before me this day of A.D. M CASE NO 2008-00468 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND COUNTRYWIDE HOME LOANS INC VS KIRK DAVID 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 KIRK JODY M but was unable-to locate Her in his-bailiwick. He therefore returns the` COMPLAINT - MORT FORE the within named DEFENDANT 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 GIVEN ADDRESS IS VACANT. Sheriff's Costs: Docketing Service Not Found Surcharge KIRK JODY M NOT FOUND , as to So answers- 6.00?? .00 5.00 R.^~Th as Kline 10.00 Sheriff of Cumberland County .00 21.00 PHELAN HALLINAN SCHMIEG 02/08/2008 Sworn and Subscribed to before me this day of A.D. SHERIFF'S RETURN - NOT FOUND FULL SPECTRUM SERVICES, INC. AFFIDAVIT OF GOOD FAITH INVESTIGATION File Number: 161312 Attorney Firm: Phelan, Hallinan & Schmieg, LLP Subject: David L. Kirk & Jody M. Kirk Current Address: 1197 Myerstown Road, Gardners, PA 17324 Property Address: 1197 Myerstown Road, Gardners, PA 17324 Mailing Address: 1197 Myerstown Road, Gardners, PA 17324 I, Kerri Smith, being duly sworn according to law, do hereby depose and state as follows, I have conducted an investigation into the whereabouts of the above-noted individual(s) and have discovered the following. I. CREDIT INFORMATION A. SOCIAL SECURITY NUMBER Our search verified the following information to be true and correct David L. Kirk & Jody M. Kirk - xxx-xx-4028 B. EMPLOYMENT SEARCH David L. Kirk & Jody M. Kirk - A review of the credit reporting agencies provided no employment information. C. INQUIRY OF CREDITORS Our inquiry of creditors indicated that David L. Kirk & Jody M. Kirk reside(s) at: 1197 Myerstown Road, Gardners, PA 17324. II. INQUIRY OF TELEPHONE COMPANY A. DIRECTORY ASSISTANCE SEARCH Our office contacted directory assistance, which indicated that David L. Kirk & Jody M. Kirk reside(s) at: 1197 Myerstown Road, Gardners, PA 17324. On 02-27- 08 our office made several telephone calls to the subjects' phone number, (717) 486-4474 and received the following information: answering machine. III. INQUIRY OF NEIGHBORS On 02-27-08 our office attempted to contact Ruby J & Barry L. Rupp at (717) 486- 3054,1194 Myerstown Road, Gardners, PA 17324 and received the following information: spoke with an unidentified female who confirmed that David L. Kirk & Jody M. Kirk reside(s) at 1197 Myerstown Road, Gardners, PA17324. IV. ADDRESS INQUIRY A. NATIONAL ADDRESS UPDATE On 02-27-08 we reviewed the National Address database and found the following information: David L. Kirk & Jody M. Kirk-1197 Myerstown Road, Gardners, PA 17324. B. ADDITIONAL ACTIVE MAILING ADDRESSES Per our inquiry of creditors, the following is a possible mailing address: no addresses on file. V. DRIVERS LICENSE INFORMATION A. MOTOR VEHICLE & DMV OFFICE Per the PA Department of Motor Vehicles, we were unable to obtain address information on David L. Kirk & Jody M. Kirk. VI. OTHER INQUIRIES A. DEATH RECORDS As of 02-27-08 Vital Records and all public databases have no death record on file for David L. Kirk & Jody M. Kirk. B. COUNTY VOTER REGISTRATION The county voter registration was unable to confirm a registration for David L. Kirk & Jody M. Kirk residing at: last registered address. VII. ADDITIONAL INFORMATION OF SUBJECT A. DATE OF BIRTH David L. Kirk -12-04-1958 Jody M. Kirk - 07-1955 B. A.K.A. Jody M. Negley * Our accessible databases have been checked and cross-referenced for the above named individual(s). * Please be advised our database information indicates the subject resides at the current address. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing states made by me are willfully false, I am subject to punishment. I herby verify that the statements made herein are true and correct to the best of my knowledge, information and belief and that this affidavit of investigation is made subject to the penalties of 18 Pa C.S. Sec. 4904 relating to unsworn falsification to authorities. A - /VA/LA 11 lr? AFFIANT - Kern Smith Full Spectrum Services, Inc. Sworn to and subscribed before me this 27th day of February 2008. The above information is obtained from available public records kls and we are only liable for the cost of the affidavit VERIFICATION Daniel G. Schmieg, Esquire, hereby states that he is the Attorney for the Plaintiff in this action, that he is authorized to make this Affidavit, and that the statements made in the foregoing MOTION FOR SERVICE PURSUANT TO SPECIAL ORDER OF COURT are true and correct to the best of his knowledge, information and belief The undersigned understands that the statements made are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Respectfully submitted, Phelan n eg, LLP By: Dana eg, squire Attorney for Plaintiff May 14, 2008 7 r Phelan Hallinan & Schmieg, LLP By: Daniel G. Schmieg, Esq., Id. No. 62205 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 lily.hainey@fedphe.com Attorney for Plaintiff Countrywide Home Loans, Inc. Court of Common Pleas Civil Division VS. Cumberland County No. 08-468 Civil Term David L. Kirk : Jody M. Kirk CERTIFICATION OF SERVICE I hereby certify that a copy of the Motion for Service Pursuant to Special Order of Court, Memorandum of Law, proposed Order and attached exhibits have been sent to the individuals as indicated below by first class mail, postage prepaid, on the date listed below. David L. Kirk and Jody M. Kirk : 1197 Myerstown Road Gardners, PA 17324-9041 The undersigned understands that this statement is made subject to the penalties of 18 PA C.S. 4904 relating to un-sworn falsification to authorities. Respectfully submitted, Phelan Hallinan & Schmieg, LLP By: - Daniel G. Schmieg, Esquire Date: May 14, 2008 Attorney for Plaintiff 8 Phelan Hallinan & Schmieg, LLP By: Daniel G. Schmieg, Esq., Id. No. 62205 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 b'ittany.bOYer@fedphs.cOm@fedphe.com Plaintiff Attorney for Countrywide Home Loans, Inc. Court of Common Pleas vs. Civil Division Cumberland County David L. Kirk No. 08-468 Civil Term Jody M. Kirk CERTIFICATION OF SERVICE I hereby certify that a copy of the Motion for Service Pursuant to Special Order of Court, Memorandum of Law, Proposed Order and attached exhibits have been sent to the individual(s) as indicated below by first class mail, postage prepaid, on the date listed below. David L. Kirk and Jody M. Kirk: 1197 Myerstown Road Gardners, PA 17324-9041 9 4 .1 N O ?o r z N O oo J U ? w N d d O .y y o C7 z d= C a ° , a o, O y •r• 1? `I pll Q. O ?? r 7C CND -? P CD n v w i y a a c v 4 CD m ro ? O Y y O cl, o. ro ^ V+ a N y 0 ?. b a b a 00 W N W N I•• rr x O W IJ n ? W V p a y to 00 d ?, v 5c C ?" ? G1 "y y N c x 0 , <0 01 m =r a c y 7 c C a c a 0 a jEg P OSt ,44' ?Q 4 o PITNEY BOWES UQ c ? 200 $d2 D ° fD _ • ER 021M MAY14 200- E3 U 0004218010 AILED FROM ZIP CODE 1 91 0 v5 S M E o w . 3 y ~ ? C CD N ? N y a II 9 0 h 00 a '? Z o p oa S? w ? ? n ? A C o' ? b a ?. P. o° 0 . 46 VERIFICATION Daniel G. Schmieg, Esquire, hereby states that he is the Attorney for the Plaintiff in this action, that he is authorized to make this Affidavit, and that the statements made in the foregoing MOTION FOR SERVICE PURSUANT TO SPECIAL ORDER OF COURT are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements made are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Respectfully submitted, Phelan Hallinan & Schmieg, LLP By. --?.? G.__S ieg, Esquire Attorney for Plaintiff June 27, 2008 s The undersigned understands that this statement is made subject to the penalties of 18 PA C.S. 4904 relating to un_sworn falsification to authorities. Respectfully submitted, Phelan Hallinan & ? Schmieg, LLr--_ By: ? Date: June 27, 2008 -- ?? : Jy= G. Schmieg? e Attorney for Plaintiff 10 ;..., cep `T7 Phelan Hallinan & Schmieg, LLP Lawrence T. Phelan, Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 1617 JFK Boulevard, Suite 1400 ATTORNEY FOR PLAINTIFF One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 COUNTRYWIDE HOME LOANS, INC. COURT OF COMMON PLEAS Plaintiff vs. DAVID L. KIRK JODY M. KIRK Defendants TO THE PROTHONOTARY: : CIVIL DIVISION : CUMBERLAND COUNTY No. 08-468-CIVIL TERM Kindly reinstate the Civil Action in Mortgage Foreclosure with reference to the above captioned matter. & 4CHMIEG, LLP B CIS C. HALLNN, ESQUIRE LA E T. PHELAN, ESQUIRE D G. SCHMIEG, ESQUIRE Attorn s for Plaintiff Date: July 10, 2009 /lxh, Svc Dept. File# 161312 'iG? - ? {? ?, } ' ? Q ._. ? t?? ,? , ? w ? ? ? ? ? ? ? c?, ? ? ?? ?u ?\ n r s ' IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Countrywide Home Loans, Inc. Civil Division vs. No. 08-468 Civil Term David L. Kirk Jody M. Kirk ORDER tM AND NOW, this a day of , 2008, upon consideration of Plaintiff's Motion for Service Pursuant to Special Order of Court, it is hereby ORDERED and DECREED that said Motion is GRANTED. All 162008/ r It is further ORDERED and DECREED that Plaintiff may obtain service of the Complaint and all future pleadings on Defendants, David L. Kirk and Jody M. Kirk, by: 1. Posting of the premises: 1197 Myerstown Road, Gardners, PA 17324- 9041. 2. First class mail to David L. Kirk and Jody M. Kirk at the mortgaged premises located at 1197 Myerstown Road, Gardners, PA 17324-9041; and 3. Certified mail to David L. Kirk and Jody M. Kirk at the mortgaged premises located at 1197 Myerstown Road, Gardners, PA 17324-9041; and 4. Publication in accordance with PA. R.C.P. 430. BY THE COURT: Cc: David L. Kirk and Jody M. Kirk J. 1197 Myerstown Road Gardners, PA 17324-9041 2 Q. 4-0 ?. c 1 ,Nn n- 9 w: I I WV 8 I i f gooz MVIUi IO; ?Ri dU 3") ?-4,0-031Y Phelan Hallinan & Schmieg, LLP Lawrence T. Phelan, Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 1617 JFK Boulevard, Suite 1400 ATTORNEY FOR PLAINTIFF One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 COUNTRYWIDE HOME LOANS, INC. COURT OF COMMON PLEAS Plaintiff CIVIL DIVISION vs. CUMBERLAND COUNTY DAVID L. KIRK JODY M. KIRK No. 08-468-CIVIL TERM Defendants TO THE PROTHONOTARY: Kindly reinstate the Civil Action in Mortgage Foreclosure with reference to the above captioned matter. & SfHMIEG, LLP Date: 7n1yl-3 ?, 008 By:. FLAN S. HALLRMN, ESQUIRE AWREN T. PHELAN, ESQUIRE DANIEL G SCHMIEG, ESQUIRE .Alto or Plaintiff /lxh, Svc Dept. File# 161312 4 ?, v PHELAN HALLINAN & SCHMIEG LLP B-q: 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 (9-15),563-7000 COUNTRYWIDE HOME LOANS, INC. Plaintiff VS. DAVID L. KIRK JODY M. KIRK Defendant(s) ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DIVISION CUMBERLAND COUNTY NO. 08-468-CIVIL TERM AFFIDAVIT OF SERVICE OF COMPLAINT BY MAIL PURSUANT TO COURT QRDF,R I hereby certify that a true and correct copy of the Civil Action Complaint in Mortgage Foreclosure in the above captioned matter was sent by regular and certified mail, return receipt requested, to the following persons DAVID L. KIRK and JODY M. KIRK at 1197 MYERSTOWN ROAD, GARGNERS, PA 17324, on JITLY 30,2008, in accordance with the Order of Court dated JULY 18, 2008. The undersigned understands that this statement is made subiect to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities. Date: hily 10, 7.1 Am t ? i`4? Dz) SHERIFF'S RETURN - REGULAR CASE NO: 2008-00468 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND COUNTRYWIDE HOME LOANS INC VS KIRK DAVID ET AL GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE KIRK DAVID L DEFENDANT the at 0017:45 HOURS, on the 5th day of August , 2008 at 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 PROPERTY POSTED PER COURT was served upon by handing to ORDER FOR DAVID L. KIRK a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing His attention to the contents thereof. Additional Comments PROPERTY POSTED AT 1197 MYERSTOWN ROAD, GARDNERS, PA 17324. Sheriff's Costs: So Answers: Docketing 18.00 Service 11. 00 n`1o8 .??? Posting 6.00 Surcharge 10.00 R. Thomas Kline .00 45.00 08/06/2008 PHELAN HALLINAN & SCHMIEG Sworn and Subscibed to By: before me this day Deputy S ff of A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2008-00468 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND COUNTRYWIDE HOME LOANS INC VS KIRK DAVID ET AL GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon uTRU .7MV M the DEFENDANT , at 0017:45 HOURS, on the 5th day of August , 2008 at 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 by handing to PROPERTY POSTED PER COURT ORDER FOR JODY M KIRK a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing Her attention to the contents thereof. Additional Comments PROPERTY POSTED AT 1197 MYERSTOWN ROAD, GARDNERS, PA 17324. Sheriff's Costs: So Answers: Docketing 6.00 Service .00 8'f??o8 Posting 6.00 1 Surcharge 10.00 OIL R. Thomas Kline .00 22.00 08/06/2008 PHELAN HALLINAN & SCHMIEG Sworn and Subscibed to By: before me this day Deputy S iff of A.D. Phelan Hallinan & Schmieg, LLP By: Daniel G. Schmieg, Esquire Identification No. 62205 One Penn Center Plaza 1617 JFK Boulevard, Ste. 1400 Philadelphia, PA 19103 (215) 320-0007 COUNTRYWIDE HOME LOANS, INC. VS. DAVID L. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 Attorney for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS : CIVIL DIVISION : NO. 08468-CIVIL TERM PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter judgment in favor of the Plaintiff and against DAVID L. KIRK and JODY M. KIR 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 -1/17/08 TO 9/16/08 TOTAL $164,859.57 $7,180.92 $172,040.49 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 DAMAGE'S ARE HEREBY ASSESSED AS INDICATED. DATE: PRO PROTHY PHS# 161312 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 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 COUNTRYWIDE HOME LOANS, INC. V. Plaintiff ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISON NO. 08468-CIVIL TERM DAVID L. KIRK JODY M. KIRK Defendant(s) TO: DAVID L. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 DATE OF NOTICE: August 26, 2008 CUMBERLAND COUNTY 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. 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 (10) 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 notice to a lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the following office to find out where you can get legal help: Office of the Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6195 Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 CAROLINE V. CINO Legal Assistant ?NN-? ?*10?1 PHS # 161312 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 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 COUNTRYWIDE HOME LOANS, INC. V. Plaintiff ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DMSON NO. 08-468-CIVIL TERM DAVID L. KIRK JODY M. KIRK Defendant(s) TO: JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 DATE OF NOTICE: August 26, 2008 CUMBERLAND COUNTY 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. 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 (10) 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 notice to a lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the following office to find out where you can get legal help: Office of the Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6195 Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 CAROLINE V. CINQ O Legal Assistant ?00 PHS # 161312 Phelan Hallinan & Schmieg, LLP By: Daniel G. Schmieg, Esquire Identification No. 62205 One Penn Center Plaza 1617 JFK Boulevard, Ste. 1400 Philadelphia, PA 19103 Attorney for Plaintiff (215) 320-0007 COUNTRYWIDE HOME LOANS, INC. : CUMBERLAND COUNTY : COURT OF COMMON PLEAS VS. DAVID L. KIRK JODY M. KIRK : CIVIL DIVISION : NO. 08468-CIVIL TERM 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 DAVID L. KIRK is over 18 years of age and resides at 1197 MYERSTOWN ROAD, GARDNERS, PA 17324-9041. (c) that defendant JODY M. KIRK is over 18 years of age, and resides at 1197 MYERSTOWN ROAD, GARDNERS, PA 17324-9041. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. c Daniel G. Schmieg, Esquire Attorney for Plaintiff ?C !? W t4• "? Cj ILK, 71. (Rule of Civil Procedure No. 236) - Revised COUNTRYWIDE HOME LOANS, INC. : CUMBERLAND COUNTY : COURT OF COMMON PLEAS VS. DAVID L. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 : CIVIL DIVISION : NO. 08468-CIVIL TERM JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 N tice is given that a Judgment in the above captioned matter has been entered against you on $ , 2008. By. (:Z.. If you have any questions concerning this matter please contact: c Daniel G. Schii eg, Esquire Attorney or Party Filing 1617 JFK Boulevard, Ste. 1400 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 YOU HAVE PRE VIOUSL Y RECEIVED A DISCHARGE IN BANKRUPTCY, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BEANATTEMPT TO COLLECTA DEBT, BUT ONLYENFORCEMENT OFA LIENAGAINST PROPERTY. ** COUNTRYWIDE HOME LOANS, INC. Plaintiff, V. No. 08-468 CIVIL TERM DAVID L. KIRK . JODY M. KIRK Defendant(s). TO THE DIRECTOR OF THE OFFICE OF THE PROTHONOTARY: Issue writ of execution in the above matter: Amount Due $172,040.49 Interest from 9/17/08 TO 3/4/09 $4,779.32 and Costs (per diem -$28.28) TOTAL $176,819.81 DANIEL G. SC EG, 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. 161312, U G 0 x Q a W 0 d a? ow V 04 ?U U? w 0 i a A ?c o A 0 W q c? Q W W V a 1-4 a 0 ON yet N M r a O N r ? d A w ,wry ?' r r ? ? ro ,. ?? .-- r r r l '? r r CII) U ?' ? ..: to K (? ` n IC rt r' 1/1 w Lid b ,3 1 bl.. M r- ?D r t'r 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 COUNTRYWIDE HOME LOANS, INC. Plaintiff, V. DAVID L. KIRK JODY M. KIRK Defendant(s). CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 08-468 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 unsworn falsification to authorities. -- --6, '>-- DANIEL G. SCHMIEG, ESQUIRE Attorney for Plaintiff ATTORNEY FOR PLAINTIFF ° ? " -r? t? _? -? Y? ? 4 A ..-. ? .. ..,?.'i ?n? T ??S w, COUNTRYWIDE HOME LOANS, INC. Plaintiff, V. DAVID L. KIRK JODY M. KIRK Defendant(s). CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 08-468 CIVIL TERM AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. 1) COUNTRYWIDE HOME LOANS, INC., 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 .1197 MYERSTOWN ROAD, GARDNERS, PA 17324-9041. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) DAVID L. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 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) JP Morgan Chase Bank, N.A. 250 West Huron Road P.O. Box 93764 Cleveland, OH 44113 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 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 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 au ies October 2, 2008 DATE YAANNII-EELL AGSSCC?HHMMIEG, ESQUIRE Attorney for Plaintiff G °m . F-_ 1 y -..? _E^it t Cn3 C : (E? ttJ M COUNTRYWIDE HOME LOANS, INC. Plaintiff, V. DAVID L. KIRK JODY M. KIRK Defendant(s). TO: DAVID L. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 October 2, 2008 CUMBERLAND COUNTY No. 08-468 CIVIL TERM JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 "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 AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. ** Your house (real estate) at, 1197 MYERSTOWN ROAD, GARDNERS, PA 17324-9041, s -scheduled to be sold at the Sheriffs Sale on MARCH 4, 2009 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $172,040.49 obtained by COUNTRYWIDE HOME LOANS, INC. (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, situate in Dickinson Township, in the County of Cumberland, Commonwealth of Pennsylvania, bounded and described as follows: BEGINNING at the existing railroad spike in Myerstown Road (T524) at the southern most point of Lot 36A on the hereinafter referred to Plan; thence along line of said Lot 36A North 36 degrees 00 minutes 06 East 205.56 feet to a point; thence along line of Lot 36B on the hereinafter referred to Plan North 36 degrees 00 minutes 06 seconds East 191.66 feet to a point in line of Lot 34 on the hereinafter referred to Plan; thence along line of said Lot 34 South 28 degrees 06 minutes 52 seconds East 105.16 feet to a point in line of lands now or formerly of Richard Roberts; thence along line of said lands now or formerly of Richard Roberts South 22 degrees 21 minutes 19 seconds West 319.10 ............... .. feet to a point in Myerstown Road (T524); thence along Myerstown Road (T524) North 67 degrees 38 minutes 14 seconds West 174.83 feet to an existing railroad spike, the point of BEGINNING. CONTAINING a total lot area of 1.072 acres, including the portion of said premises under and subject the right-of-way line of Myerstown Road (T524); and Being Lot No. 36 on a Preliminary/Final Michaux Meadows Re-Subdivision of Lots 34 and 36, as recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania in Plan Book 74, Page 138. TITLE TO SAID PREMISES IS VESTED IN David L. Kirk and Jody M. Kirk, husband and wife, by Deed from Karl E. Sowers and Glora M. Sowers, husband and wife and Lynn E. Sowers and Martha G. Sowers, husband and wife and Roger E. Sowers and Lois Sowers, husband and wife, acting Through Their Attorney in- Fact and Karl E. Sowers and Chester E. Chronister, Adminstrator of the Estate of Leona Chronister, dated 03/26/1999, recorded 03/29/1999, in Deed Book 196, page 623. PREMISES BEING: 1197 MYERSTOWN ROAD, GARDNERS, PA 17324-9041 PARCEL NO. 08-15-0199-040 C c ?"t7 ? F WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 08468 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due COUNTRYWIDE HOME LOANS, INC., Plaintiff (s) From DAVID L. KIRK AND JODY M. KIRK (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 $172,040.49 L.L. $.50 Interest FROM 9/17/08 TO 3/4/09 (PER DIEM - $28.28) -- $4,779.32 AND COSTS Atty's Comm % Atty Paid $255.36 Plaintiff Paid Date: OCTOBER 3, 2008 (Seal) Due Prothy $.200 Other Costs 1?7'zl I - s R. Lon y By: REQUESTING PARTY: Name DANIEL G. SCHMIEG, ESQUIRE Address: ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Deputy Supreme Court ID No. 62205 AFFIDAVIT OF SERVICE PLAINTIFF COUNTRYWIDE HOME LOANS, INC. DEFENDANT(S) DAVID L. KIRK JODY M. KIRK SERVE JODY M. KIRK AT: 637 S. COLLEGE ST CARLISLE, PA 17013-3714 SERVED Served and made known to Defendant, on i , 200 at 1 t , o'clock &m., at (37 5 Ca LLfRGE S • G , Commonwealth of Pennsylvania, in the manner described below: Defendant personally served. _V Adult family member with whom Defendant(s) reside(s). Name and Rel Adult in charge of Defendant(s)'s residence who refused to give name or 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 busil an officer of said Defendant(s)'s company. Other: Description: Age 5D Height -5&f Weight Race W 1, J7•c-Q /n V &t?L , a competent adult, being duly sworn accorc personally handed a true and correct copy of the Notice of Sheriffs Sale in the ma captioned case on the date and at the address indicated above. Sworn to and subscribed b e this Nb day of IJ g 200 N ry - By: MPT SERVI AT LEAST 3 ES. INDICATE DAT ATTEMPTED. Notary Public State of New Jersey NOT SERVED PATRICIA E. HARRIS (ggqNission Expiraj?ape 1b, 2013 200_, at o'clock _.m., D Moved Unknown No Answer Vacant 1St Attempt: Time: 2nd Attempt: 3rd Attempt: / / Time: Sworn to and subscribed before me this day of -,200-. Notary: DANIEL G. SCHMI One Penn Center at By: 1617 John F. Kennel Philadelphia, PA 191 (215) 563-7000 1? CUMBERLAND COUNTY 1 No. 08-468 CIVIL TERM ACCT. #161312 Type of Action - Notice of Sheriffs Sale Sale Date: MARCH 4, 2009 he aZ N Q day of b6c ?M g KLI 5uE )nship is A?FV ID , 4S34*!fit Other to law, depose and state that I r as set forth herein, issued in the & TIMES OF SERVICE NOT FOUND because: Time: 7, Esquire - I.D. No. 62205 burban Station, Suite 1400 Boulevard 1-1814 30Y` t? `'chi C r ?-? _s , >>? : . - ,??:: ,. ? f , ?,. , _ ,?3? _ ? ??. _. , ?' ?- :a :..?-, AFFIDAVIT OF SERVICE PLAINTIFF COUNTRYWIDE HOME LOANS, INC. DEFENDANT(S) DAVID L. KIRK JODY M. KIRK SERVE DAVID L. KIRK AT: 637 S. COLLEGE ST CARLISLE, PA 17013-3714 SERVED Served and made known to DA'J (D L. V I R K -Defendant, on at f (? t{ S, o'clock .m., at 637 S - Ca Ll-F-G•E of Pennsylvania, in the manner described below: ? Defendant personally served. Adult family member with whom Defendant(s) reside(s). Name and Rela Adult in charge of Defendant(s)'s residence who refused to give name or 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 busit an officer of said Defendant(s)'s company. Other: Description: Ag/eHeight Weight O Race 6-L L , a competent adult, being duly sworn accord a true and correct copy of the Notice of Sheriff's Sale in the manner as set forth he the address indicated above. Swo and subscribed efore me s 2ND day of , 20(2L. 41 Nota ? .- By' S A PT SERVICE A LEAST 3 TIMES. INDICATE DAT Notary Public State of New Jersey NOT SERVED PATRICIA E. HARRIS On the CommissioH#yc®ges June 1b, 2013 , 200 , at o'clock _.m., CUMBERLAND COUNTY 1 08-468 CIVIL TERM #161312 e Date: MARCH 4, 2009 'ype of Action Notice of Sheriffs Sale o2N day of -DEC FI1tR200, E Commonwealth is M Other to law, depose and state that I personally handed , issued in the captioned case on the date and at & TIMES OF SERVICE ATTEMPTED. NOT FOUND because: Moved Unknown No Answer Vacant 15` Attempt: Time: 2nd Attempt: Time: 3rd Attempt: Time: Sworn to and subscribed Attorney for Plaintiff before me this day DANIEL G. CHMIEG, Esquire - I.D. No. 62205 of _ 1200-. One Penn Center at Suburban Station, Suite 1400 Notary: By: 1617 John F. Kennedy Boulevard Philadelphia PA 19103-1814 (215) I Q 38t z r ' ;:` J , ? ?t`! ? ?? ? ? !?` ?? .,,.,, - ?,..-, ,? ^ ;` ? .J r . .f 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 COUNTRYWIDE HOME LOANS, INC. Plaintiff Court of Common Pleas V. DAVID L. KIRK JODY M. KIRK Defendants Civil Division CUMBERLAND County No. 08-468-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 January 22, 2008, a true and correct copy of which is attached hereto, made part hereof, and marked as Exhibit "A„ 2. Judgment was entered on September 18, 2008 in the amount of $172,040.49. 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 March 4, 2009. 5. Additional sums have been incurred or expended on Defendants' behalf since the Complaint was filed and Defendants have 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 March 4, 2009 Per Diem $26.38 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 $154,084.80 $20,420.91 $157.98 $1,875.00 $1,710.99 $0.00 $158.00 $0.00 $0.00 $0.00 ($0.00) $11,997.13 $190,404.81 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 Defendants. 8. 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 January 12, 2009 and requested the Defendants' Concurrence. Plaintiff did not receive any response from the Defendants. 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. No judge has previously entered a ruling in this case. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. Phelan Hallinan & Schmieg, LLP DATE: sz v By: Michele M. Bradford, Esquire 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 COUNTRYWIDE HOME LOANS, INC. Plaintiff Court of Common Pleas V. DAVID L. KIRK JODY M. KIRK Defendants Civil Division CUMBERLAND County No. 08-468-CIVIL TERM MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REASSESS DAMAGES 1. BACKGROUND OF CASE DAVID L. KIRK and JODY M. KIRK 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 1197 MYERSTOWN ROAD, GARDNERS, PA 17324-9041. 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, Defendants 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 Defendants 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 Mortan e 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 Defendants 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 Defendants' failure to tender payments during the foreclosure proceeding and the advances made by the mortgage company. The Mortgage plainly requires the mortgagors to tender to the mortgagee monthly payments of principal and interest until the Promissory Note accompanying the Mortgage is paid in full. The mortgagors are 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 mortgagors have 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 Defendants 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. Citico 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: /2ld Phelan Hallinan & Schmieg, LLP By: Michele M. Bradford, Esquire Attorney for Plaintiff Exhibit "A" PHELAN HALLINAN & SCHMIEG, LLP FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 MICHELE M. BRADFORD, ESQ., Id. No. 69849 `.SHEETAL R, SHAH-JANI, ESQ., Id. No. 81760 JUDITH T. ROMANO, ESQ., Id. No. 58745 JENINE R. DAVEY, ESQ., Id. No. 87077 MICHAEL E. CA.RLETON, ESQ., Id. No. 203009 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 215 563-7000 161312 COUNTRYWIDE HOME LOANS, INC. 7105 CORPORATE DRIVE PLANO, TX 75024 V. Plaintiff C? c Cab r~ r ; ? ?.i -rt G i`.:: N fJ ?T/ E w ATTORNEY FOR PLAINTIFF CIVIL DIVISION COURT OF COMMON PLEAS TERM NO. 68- 410g aivi l Terw. DAVID L. KIRK CUMBERLAND COUNTY JODY M. KIRK 1.197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 Ve hereby certify tt e within to be a true and correct Defendants rrig n t Mad of r core CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE ATTORNEY FlLE copy PLEASE RETURN File it: 161312 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 #: 161312 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 #: 161312 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 #: 161312 1. Plaintiff is COUNTRYWIDE HOME LOANS, INC. 7105 CORPORATE DRIVE PLANO, TX 75024 2. The name(s) and last known address(es) of the Defendant(s) are: DAVID L. KIRK JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 10!14/2003 mortgagor(s) made, executed, and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS A NOMINEE FOR AMERICA'S WHOLESALE LENDER which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Book: 1842, Page: 1346. 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 05/01/2007 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. Fife #: 161312 6. The following amounts are due on the mortgage: Principal Balance $154,084.80 Interest $8,564.13 04/01/2007 through 01/16/2008 (Per Diem $29.43) Attorney's Fees $1,250.00 Cumulative Late Charges $210.64 10/14/2003 to 01/16/2008 Cost of Suit and Title Search 750.00 Subtotal $164,859.57 Escrow Credit $0.00 Deficit $0.00 Subtotal 0.00 TOTAL $164,859.57 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 #: 161312 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 $164,859.57, together with interest from 01/16/2008 at the rate of $29.43 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 ` 1 difild do/3 By: V- TD 1 o FRANCIS S. HALL , ESQUIRE DANIEL G. SC , SQUIRE MICHELE M. BRADFORD, ESQUIRE SHEETAL R. SHAH-JANI, ESQUIRE JUDITH T. ROMANO, ESQUIRE JENINE R. DAVEY, ESQUIRE MICHAEL E. CARLETON, ESQUIRE Attorneys for Plaintiff File #: 161312 LEGAL DESCRIPTION ALL THAT CERTAIN, situate in Dickinson Township, in the County of Cumberland, Commonwealth of Pennsylvania, bounded and described as follows: BEGINNING at the existing railroad spike in Myerstown Road (T524) at the southern most point of Lot 36A on the hereinafter referred to Plan; thence along line of said Lot 36A North 36 degrees 00 minutes 06 East 205.56 feet to a point; thence along line of Lot 36B on the hereinafter referred to Plan North 36 degrees 00 minutes 06 seconds East 191.66 feet to a point in line of Lot 34 on the hereinafter referred to Plan; thence along line of said Lot 34 South 28 degrees 06 minutes 52 seconds East 105.16 feet to a point in line of lands now or formerly of Richard Roberts; thence along line of said lands now or formerly of Richard Roberts South 22 degrees 21 minutes 19 seconds West 319.10 feet to a point in Myerstown Road (T524); thence along Myerstown Road (T524) North 67 degrees 38 minutes 14 seconds West 174.83 feet to an existing railroad spike, the point of BEGINNING. CONTAINING a total lot area of 1.072 acres, including the portion of said premises under and subject the right-of-way line of Myerstown Road (T524); and Being Lot No. 36 on a Preliminary/Final Michaux Meadows Re-Subdivision of Lots 34 and 36, as recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania in Plan Book 74, Page 138. File#: 161312 SUBJECT, HOWEVER, to following protective covenants recorded with said Final Subdivision Plan for Michaux Meadows, which the Grantees, for themselves, their heirs and assigns, agree to comply by the acceptance of this deed: No structure of a temporary character or trailer, mobile home, basement, shack, garage, bam or other outbuilding shall be used on any lot at any time as a residence. 2. No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become any annoyance or nuisance to the neighborhood. 3. No Animals, livestock, or poultry of any kind shall be raised, bred or kept on any lot for any commercial purpose. 4. No lot shall be used or maintained as a dumping area for rubbish. Trash, garbage or other waste shall not be kept except in sanitary containers. All incinerators or other equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition. 5. no home having habitable floor space less than 1000 square feet for a one story and 1200 square feet for a two story structure shall be erected or maintained on any lot. 6. No dwelling shall have an exterior finish or exterior color which would be offensive or in poor taste to the atmosphere maintained by the balance of the homes in'Michaux Meadows,' File #: 161312 7. have a current state of inspection sticker. PARCEL #:08-15-0199-040. BEING KNOWN AS 1197 MYERSTOWN ROAD, GARDNERS, PA 17324-9041 No vehicles shall be abandoned or stored on any lot. All vehicles kept on any lot shall File #: 161312 VERIFICATION I hereby state that I am the 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 I am 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 my 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. Attorney for Plainti? DATE: I Exhibit "B" Phelan Hallinan & Schmieg, LLP By. Daniel G. Schmieg, Esquire Identification No. 62205 One Penn Center Plaza. 1617 JFK Boulevard, Ste. 1400 Philadelphia, PA 19103 (215) 320-0007 COUNTRYWIDE HOME LOANS, INC. VS. DAVID L. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 Attorney for Plaintiff : CUMBERLAND COUNTY : COURT OF COMMON PLEAS CIVIL DIVISION NO. 08468-CIVIL TERM 0 C s. ?s a C. PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: N 0 c, ego cn M A ca N O X-n C Kindly enter judgment in favor of the Plaintiff and against DAVID L. KIRK and JODY M. KIRK 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 -1/17/08 TO 9/16/08 TOTAL $164,859.57 7180.92 $172,040.49 I hereby certify that 0) 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:.x008 PHS# 161312 PRO PROTHY Exhibit "C" GTr bD 0 a d T ? U d O ? `C C O w U C O C ': . [2 E6 r?'',.P 4 s 0 L 6 3003 d¢ w08=1 0311VW 60OZ e L Nvr o Los Lzvooo W .s t ` Z0 OO???Q Wl ?00 0 O off' ,! o 70 00 v v E n o 'a o E y W ` w v v E v ° . O . - H e p .... C L U ? O ? y ,h O U W w'p v ? O 7 U O C E O W C C W O W 6 a O O G O O E U E X C A f R v ? ? E m b C O U d y 00 00 U a W z ? r v A O a Z b O W u O Y y ? x ? a U v? ? A zoo W I W Z4 x U p a o .a0.b ,N ?oa z a? .a z O ? ? Ow h zQO `' G 0 IS a r? ?o o°. w U ao 0 ?a 04 z; d c h 4+444 4 o? v ? 'O a z' ""?N IM IMF IV1 110 In loo log to I"" ?~ I_ I' I^13a 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. Phelan Hallinan & Schmieg, LLP DATE: By: Michele M. Bradford, Esquire Attorney for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire, Atty. I.D. No. 69849 ATTORNEY FOR PLAINTIFF 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 COUNTRYWIDE HOME LOANS, INC. Plaintiff Court of Common Pleas Civil Division V. DAVID L. KIRK JODY M. KIRK CUMBERLAND County No. 08-468-CIVIL TERM Defendants 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. DAVID L. KIRK JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 Phelan Hallinan & Schmieg, LLP DATE: /Z v By: Michele M. Bradford, Esquire Attorney for Plaintiff c7 c:. COUNTRYWIDE HOME LOANS, INC. PLAINTIFF V. DAVID L. KIRK, JODY M. KIRK, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-0468 CIVIL ORDER OF COURT AND NOW, this 26`h day of January, 2009, upon consideration of the Motion to Reassess Damages filed by the Plaintiff, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Defendants to show cause why the relief requested should not be granted; 2. The Defendants will file an answer on or before February 16, 2009; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Plaintiff shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Defendants file an answer to this Rule to Show Cause, the Court will determine if further order or hearing is necessary. 4. The Prothonotary is directed to forward said Answer to this Court. By the Court, ichele M. Bradford, Esquire Attorney for Plaintiff David L. Kirk Jody M. Kirk Defendants 1197 Myerstown Road Gardners, PA 17324-9041 bas V*1 UA L. Ebert, Jr., J. i -! Z:- 0 ? _Z Wd 9Z NVP 6 6Z PHELAN HALLINAN & SCHMIEG, LLP By: DANIEL G. SCHMIEG IDENTIFICATION NO. 62205 ATTORNEY FOR PLAINTIFF ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 COUNTRYWIDE HOME LOANS, INC. CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION V. DAVID L. KIRK JODY M. KIRK NO.: 08-468-CIVIL TERM PRAECIPE TO MARK JUDGMENT TO USE PLAINTIFF TO THE PROTHONOTARY: Please mark the judgment in the above captioned matter to the use of COUNTRYWIDE HOME LOANS SERVICING, L.P., 7105 CORPORATE DRIVE, PLANO, TX 75024. i,_ /c=`\ k rV P ,AWL G. SCHMIEG, ESQ Attorney for Plaintiff Date: February 2, 2009 TO THE PROTHONOTARY: ENTRY OF APPEARANCE Kindly enter my appearance on behalf of COUNTRYWIDE HOME LOANS SERVICING, L.P., 7105 CORPORATE DRIVE, PLAN , TX 75 4, USE PLAINTIFF. Planiel G. Schmieg, E Attorney for Plaintiff Date: February 2, 2009 d 4 ..? 12 C Vv 14' 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 COUNTRYWIDE HOME LOANS, INC. Plaintiff Court of Common Pleas Civil Division V. DAVID L. KIRK JODY M. KIRK CUMBERLAND County No. 08-468-CIVIL TERM Defendants CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of our Motion to Reassess Damages noting a Rule Return date of February 16, 2009 was sent to the following individual on the date indicated below. DAVID L. KIRK JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 Phelan Hallinan & Schmieg, LLP DATE: Z Ll `? By: Michele M. Bradford, Esquire Attorney for Plaintiff ra ? i?r? ..o -n ? ??_ ? ? `+? ?;, rS° ?'i,..' ? ? ? F -? ? { 1 ,,, fTt ._ ? , ? ? °"? COUNTRYWIDE HOME LOANS, INC. VS. DAVID L. KIRK JODY M. KIRK : CUMBERLAND COUNTY : COURT OF COMMON PLEAS : CIVIL DIVISION NO. 08-468-CIVIL TERM AFFIDAVIT OF SERVICE PURSUANT TO RULE 3129 COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND ) SS: I, DANIEL G. SCHMIEG, ESQUIRE attorney for COUNTRYWIDE HOME LOANS, INC. hereby verify that true and correct copies of the Notice of Sheriff's sale were served by certificate of mailing to the recorded lienholders, and any known interested party see Exhibit "A" attached hereto. I e"' DATE: February 2, 2009 DANIEL G. SCHMIEG, Attorney for Plaintiff GS D? i S W W O °o cUn a. ? W a. 42 a rj) C7 0 ? Y V cd ?d vi. 121 p'F ° Zv o o ' ?p0? lz Vic) 44Ug4???a AGO 46 L socz Lz iOo V?S?OR h3K?M i 'Sod Q o d Q rfY?? .? V o a a o ? 0 ?c ° ? M GA M a C- W p W N N r- cn E" r' r` ? d o ?sd ? Wa :1, 3 `+ 03 O Y? m ? x, o U `3 Q N 13 H 2 a? w+ F4 O d 9 ?r4r C, coo °' OW?xu d??Q 3 °? cCe ?p Oo rr- O a U?? y ?0 BE??M60po ?,-Ft7 Sr d Y ? a M ? Q d Ft? M f d A at Q3 ^' ?Q GCog y? C ? ? N b 0 .% O CFA C O C °? U N ? N E Ca ? ?CC A ?? ' N t O ?.S ?;eKo boo b .y v ? N G c?F ? N N N GO ? d -? U ? O N ? V ?O N y'? TG ca P r O 0 10 7oow O C d ? N ? G d w ? wog ? Y Nwx 5 M ? "'fl O Q ? w mod. v ? T SS7 v w a U J wp o 's P 2? d a ?, Q ? 4 v a N' wO T m (4 a A { f S yam{ u COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ISS: I, Robert P. Zie ig_er, Recorder of Deeds in and for said County and State do hereby certify that the Sheriff's Deed in which FANNIE MAE is the grantee the same having been sold to said grantee on the 4TH day of MARCH A.D., 2009, under and by virtue of a writ Execution issued on the 3RD day of OCT, A.D., 2008, out of the Court of Common Pleas of said County as of Civil Term, 2008 Number 46 8, at the suit of COUNTRYWIDE HOME LOANS INC against DAVID L KIRK & JODY M is duly recorded as Instrument Number 200908496. va k;t""dXW County. C4fk*. PA E"s the F* Mondoy 01 ,x, 201o IN TESTIMONY WHEREOF, I have hereunto set my hand and seal of said office this 1:; .?f day of Countrywide Home Loans, Inc. VS David L. Kirk and Jody M. Kirk In The Court of Common Pleas of Cumberland County, Pennsylvania Writ No. 2008-468 Civil Term Kenneth Gossert, Deputy Sheriff, who being duly sworn according to law, states that on November 14, 2008 at 1920 hours, he served a true copy of the within Real Estate Writ, Notice and Description, in the above entitled action, upon the within named defendants, to wit: David L. Kirk and Jody M. Kirk, by posting the premises located at 1197 Myerstown Road, Gardners, Cumberland County, pursuant to order of court, according to law. Michael Barrick, Deputy Sheriff, who being duly sworn according to law, states that on January 13, 2009 at 1909 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 David L. Kirk and Jody M. Kirk located at 1197 Myerstown Road, Gardners, 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 defendants, to wit: David L. Kirk and Jody M. Kirk, by regular mail to their last known address of 637 S. College Street, Carlisle, PA 17013. These letters were mailed under the date of January 13, 2009 and never returned to the Sheriffs Office. R. Thomas Kline, Sheriff, who being duly sworn according to law, states that after due and legal notice had been given according to law, he exposed the within described premises at public venue or outcry at the Courthouse, Carlisle, Cumberland County, Pennsylvania on March 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 Fannie Mae, of, P.O. Box 650043, Dallas, TX 75265-0043 being the buyer in this execution, paid to Sheriff R. Thomas Kline the sum of $ 1,150.89. Sheriffs Costs: Docketing $30.00 Poundage 22.57 Posting Bills 15.00 Advertising 15.00 Acknowledging Deed 48.00 Auctioneer 10.00 Law Library .50 Prothonotary 2.00 Mileage 19.80 Levy 15.00 Surcharge 30.00 Post Pone Sale Posting 12.00 Law Journal 419.00 Patriot News 422.00 Share of Bills 15.52 Distribution of Proceeds 25.00 Sheriffs Deed 49.50 $1,150.89 So Answers: R. Thomas Kline, Sheriff By Real Estate Coordinator 5 ,t" ?-. Ni uj C L 7 v C: tl;r' cn C\j LL LU C-4 COUNTRYWIDE HOME LOANS, INC. Plaintiff, V. DAVID L. KIRK JODY M. KIRK Defendant(s). CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 08-468 CIVIL TERM AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. l) COUNTRYWIDE HOME LOANS, INC. , 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,1197 MYERSTOWN ROAD, GARDNERS, PA 17324-9041. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) DAVID L. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 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) JP Morgan Chase Bank, N.A. 250 West Huron Road P.O. Box 93764 Cleveland, OH 44113 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 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 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 unworn falsification to au es October 2, 200$ DATE ANIEL G. SCHMIEG, ESQUIRE Attorney for Plaintiff COUNTRYWIDE HOME LOANS, INC. Plaintiff, V. DAVID L. KIRK JODY M. IORK Defendant(s). CUMBERLAND COUNTY No. 08-468 CIVIL TERM October 2, 2008 TO: DAVID L. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 "THIS FIRMIS 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, THISIS NOTAND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OFA LIENAGAMST PROPERTY. ** Your house (real estate) at, 1197 MYERSTOWN ROAD, GARDNERS. PA 17324-9041, is -scheduled to be sold at the Sheriffs Sale on MARCH 4, 2009 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $172,040.49 obtained by COUNTRYWIDE HOME LOANS, INC. (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 Sheriff s Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling (215) 3-7000. 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 PRAECIPE FOR WRIT OF EXECUTION - (MORTGAGE FORECLOSURE) P.R.C.P. 3180-3183 LEGAL DESCRIPTION ALL THAT CERTAIN, situate in Dickinson Township, in the County of Cumberland, Commonwealth of Pennsylvania, bounded and described as follows: W BEGINNING at the existing railroad spike in Myerstown Road (17524) at the southern most point of Lot 36A on the hereinafter referred to Plan; thence along line of said Lot 36A North 36 degrees 00 minutes 06 East 205.56 feet to a point; thence along line of Lot 36B on the hereinafter referred to Plan North 36 degrees 00 minutes 06 seconds East 191.66 feet to a point in line of Lot 34 on the hereinafter referred to Plan; thence along line of said Lot 34 South 28 degrees 06 minutes 52 seconds East 105.16 feet to a point in line of lands now or formerly of Richard Roberts; thence along line of said lands now or formerly of Richard Roberts South 22 degrees 21 minutes 19 seconds West 319.10 feet to a point in Myerstown Road (T524); thence along Myerstown Road (T524) North 67 degrees 38 minutes 14 seconds West 174.83 feet to an existing railroad spike, the point of BEGINNING. CONTAINING a total lot area of 1.072 acres, including the portion of said premises under and subject the right-of-way line of Myerstown Road (T524); and Being Lot No. 36 on a Preliminary/Final Michaux Meadows Re-Subdivision of Lots 34 and 36, as recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania in Plan Book 74, Page 138. TITLE TO SAID PREMISES IS VESTED IN David L. Kirk and Jody M. Kirk, husband and wife, by Deed from Karl E. Sowers and Glora M. Sowers, husband and wife and Lynn E. Sowers and Martha G. Sowers, husband and wife and Roger E. Sowers and Lois Sowers, husband and wife, acting Through Their Attorney in- Fact and Karl E. Sowers and Chester E. Chronister, Adminstrator of the Estate of Leona Chronister, dated 03/26/1999, recorded 03/29/1999, in Deed Book 196, page 623. PREMISES BEING: 1197 MYERSTOWN ROAD, GARDNERS, PA 17324-9041 PARCEL NO. 08-15-0199-040 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 08-468 Civil CIVIL ACTION - LAW TO THfSHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due COUNTRYWIDE HOME LOANS, INC., Plaintiff (s) From DAVID L. KIRK AND JODY M. KIRK (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 $172,040.49 L. L. $.50 Interest FROM 9/17/08 TO 3/4/09 (PER DIEM - $28.28) -- $4,779.32 AND COSTS Atty's Comm % Due Prothy $.200 Atty Paid $255.36 Plaintiff Paid Date: OCTOBER 3, 2008 (Seal) REQUESTING PARTY: Name DANIEL G. SCHMIEG, ESQUIRE Other Costs Curtig R. Long, Pr By: Deputy Address: 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 OE '-Il `d L- 130 1 A-4143HS Ni A 331JJO Real Estate Sale #6 On October 29, 2008 the Sheriff levied upon the defendant's interest in the real property situated in Dickinson Township, Cumberland County, PA Known and numbered as 1197 Myerstown Road, Gardners more fully described on Exhibit "A" filed with this writ and by this reference incorporated herein. Date: October 29, 2008 By: Real kte"SeSrggeaant GF) Z?M cuo The Patriot-News Co. 812 Market St. Harrisburg, PA 17101 Inquiries - 717-255-8213 CUMBERLAND COUNTY SHERIFFS OF CUMBERLAND COUNTY COURT HOUSE CARLISLE PA 17013 i4e Patriot-News Now you know 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: REAL ESTATE SALE NO.6 Writ No. 2008-468 Civil Term Countrywide Home Loans, Inc. VS David L. Kirk and Jody M. Kirk Attorney Daniel Schmieg LEGAL DESCRIPTION ALL THAT MIA1N, situate in Dickinson Tmwhip, in the County of Cumberland, Commonwealth of Pennsylvania, bounded and desrnibed as follows: BEGINNING at the existing railroad spike in Myerstown Road (T524) at the southern most point of Lot 36A on the hereinafter referred to Plan; thence along lice of said Lot 36A North 36 degrees 00 minutes 06 East 20556 feet to a point; thence along line of Lot KGB on the hereinafter referred to Plan North 36 degrees 00 minutes 06 seconds East 191.66 feet to a point in line of Lot 34 on the hereinafter refened to Plan; thence along line of said Lot 34 South 28 degrees 06 minutes 52 seconds East 105.16 feet to a point in line of lands now of formerly of Richard Roberts; thence along line of said lands now or formerly of Richard Roberts South 22 degrees 21 minutes 19 seconds West 319.10 feet to a point in Myerstown Road (T524); thence along Myers- Road (r524) North 67 degrees 38 minutes 14 seconds West 174.83 feet to an existing railroad spike, the point of BEGINNING. CONTAROG a total lot area of 1.072 acres, including the portion of said premises under and subject the right-0f--way line of Myerstown Road (1'524); and Being Lot No. 36 on a Preliminary/ Final Michaux Meadows Re-Subdivisios of Lots 34 and 36, as recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania in Plan Book 74, Page 138. TITLE TO SAID PREMISES IS VESTED IN David L. Dirk and Jody M. Kirk, husband and wife, by Deed from Karl E. Sowers and Glora M. Sowers, husband and wife and Lynn E. Sowers and Martha G. Sowers, husband and wife and Roger E. Sowers and Lois Sowers, husband and wife, acting Through Their Attorney in- Fact and Karl E. Sowers and Chester E. Chrouister, Adminstrator of the Estate of Leona Chronister, dated 03/26/1999, recorded 03/29/1999, in Deed Book 196, page 623. PREMISES BEING: 1197 MYERSTOWN ROAD, GARDNERS, PA 173249041 01/21/09 01/28/09 02/04/09 c.--? Sworn to and , me this 25 day of February, 2009 A.D. - Notary Public COM10NbVt •\I_Tl OF PENNSYLVANIA No ang Seal Sherrie L. Kkiner • Notary Public coy Of Hamstz, rrrJ 'Dauphin CM*/ Caftnlssirrn Fxpirft NOV. 26, 2011 Member. Pennsylvania Assodatlon of Notaries 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: January 30, February 6, and February 13, 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. ie Coyne, SWORTrTO AND SUBSCRIBPD before me this day of February 13 2009 C"i Notary NOTARIAL SEAL DEBORAH A COLLINS Nofory Public CARLISLE BORO, CUMBERLAND COUNTY My Commission Expires Apr 28, 2010 irAb name " NO. 6 Writ No. 2008-468 Civil Countrywide Home Loans, Inc. vs. David L. Kirk and Jody M. Kirk Atty.: Daniel Schmieg LEGAL DESCRIPTION ALL THAT CERTAIN, situate in Dickinson Township, in the County of Cumberland, Commonwealth of Pennsylvania, bounded and de- scribed as follows: BEGINNING at the existing rail- road spike in Myerstown Road (T524) at the southern most point of Lot 36A on the hereinafter referred to Plan; thence along line of said Lot 36A North 36 degrees 00 minutes 06 East 205.56 feet to a point; thence along line of Lot 36B on the hereinafter referred to Plan North 36 degrees 00 minutes 06 seconds East 191.66 feet to a point in line of Lot 34 on the hereinafter referred to Plan; thence along line of said Lot 34 South 28 di 11B alb Wtes 52 seconds East 14 1? fe®t to a pow in but of I=& MW or houNrtr 0( Web d Roberts; t Jhc ofeaid Um& naw or fetmetE y eLsmrd Floberts South 22 degrees 21 minutes 19 se=ds west 319.10 feet to a point in myerstown Road (T524); thence along Myerstown Road (T524) North 67 degrees 38 minutes 14 seconds West 174.83 feet to an existing railroad spike, the point of BEGINNING. CONTAINING a total lot area of 1.072 acres, including the portion of said premises under and subject the right-of-way line of Myerstown Road (T524); and Being Lot No. 36 on a Preliminary/Final Michaux Mead- ows Re-Subdivision of Lots 34 and 36, as recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania in Plan Book 74, Page 138. TITLE TO SAID PREMISES IS VESTED IN David L. Kirk and Jody M. Kirk, husband and wife, by Deed from Karl E. Sowers and Glora M. Sowers, husband and wife and Lynn E. Sowers and Martha G. Sowers, husband and wife and Roger E. Sow- ers and Lois Sowers, husband and wife, acting Through Their Attorney in- Fact and Karl E. Sowers and Chester E. Chronister, Adminstra- tor of the Estate of Leona Chron- ister, dated 03/26/1999, recorded 03/29/1999, in Deed Book 196, page 623. PREMISES BEING: 1197 MY- ERSTOWN ROAD, GARDNERS, PA 17324-9041. PARCEL NO. 08-15-0199-040. Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 Attorney For Plaintiff r, C: COUNTRYWIDE HOME LOANS, Court of Common Pleas cz -, INC. r -t x w Plaintiff Civil Division <c vs CUMBERLAND County r °• DAVID L. KIRK No. 08-468-CIVIL TERM JODY M. KIRK Defendant r ? rte, PRAECIPE TO THE PROTHONOTARY: ? Please withdraw the complaint and mark the action Discontinued and Ended without prejudice. Please mark the above referenced case Settled, Discontinued and Ended. ? Please Vacate the judgment entered and mark the action Discontinued and Ended without prejudice. X Please mark the in rem judgment Satisfied and the action Discontinued and Ended. Date: PHELA !!LNAN & SCHMIEG, LLP By: Dana Ostr y, Esq., Id. No.83921 tt rney for Plaintiff PHS # 161312 *q.50 pD AZr1 C 1176Og4 a,74ssy Phelan Hallinan & Schmieg, LLP 1617 HK Boulevard, Suite 1400 Attorney For Plaintiff One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 COUNTRYWIDE HOME LOANS, INC. Plaintiff Court of Common Pleas vs DAVID L. KIRK JODY M. KIRK Defendant Civil Division CUMBERLAND County No. 08-468-CIVIL TERM CERTIFICATION OF SERVICE I hereby certify true and correct copies of the foregoing Plaintiffs Praecipe was served by regular mail to the person(s) on the date listed below: DAVID L. KIRK JODY M. KIRK 1197 MYERSTOWN ROAD GARDNERS, PA 17324-9041 Date: 01 1/f -"" a By: - Dana strovs Esq., Id. No.83921 Atto for Plaintiff PHS # 161312