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HomeMy WebLinkAbout08-2058PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 MICHELE M. BRADFORD, ESQ., Id. No. 69849 JUDITH T. ROMANO, ESQ., Id. No. 58745 SHEETAL SHAH-JANI, ESQ., Id. No. 81760 JENINE R. DAVEY, ESQ., Id. No. 87077 MICHAEL E. CARLETON, ESQ., Id. No. 203009 VIVEK SRIVASTAVA, ESQ., Id. No. 202331 JAY B. JONES, ESQ., Id. No. 86657 PETER MULCAHY, ESQ., Id. No. 61791 ANDREW SPIVACK, ESQ., Id. No. 84439 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 174192 PHH MORTGAGE CORPORATION 3000 LEADENHALL ROAD OR 4001 LEADENHALL ROAD MOUNT LAUREL, NJ 08054 V. Plaintiff MICHAEL S. NAILOR 416 BRANDY LANE MECHANCSBRG, PA 17055 Defendant ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. d8 -020 $ (2w, l Tern, CUMBERLAND COUNTY CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 174192 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 #: 174192 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 COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN File #: 174192 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 #: 174192 Plaintiff is PHH MORTGAGE CORPORATION 3000 LEADENHALL ROAD OR 4001 LEADENHALL ROAD MOUNT LAUREL, NJ 08054 2. The name(s) and last known address(es) of the Defendant(s) are: MICHAEL S. NAILOR 416 BRANDY LANE MECHANCSBRG, PA 17055 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 12/10/2004 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to MEMBERS 1 ST FEDERAL CREDIT UNION which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No. 1890, Page 4983. By Assignment of Mortgage recorded 02/17/2005 the mortgage was Assigned To MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. which Assignment is recorded in Assignment Of Mortgage Book No. 715, Page 1373. The 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 11/01/2007 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 File #: 174192 by written notice sent to Mortgagor, the entire principal balance and all interest due 6 thereon are collectible forthwith. The following amounts are due on the mortgage: Principal Balance $117,987.26 Interest $3,346.20 10/01/2007 through 03/28/2008 (Per Diem $18.59) Attorney's Fees $1,250.00 Cumulative Late Charges $257.40 12/10/2004 to 03/28/2008 Cost of Suit and Title Search 550.00 Subtotal $123,390.86 Escrow Credit ($249.79) Defecit $0.00 Subtotal 249.79 TOTAL $123,141.07 7 If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. 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 File #: 174192 discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. 9. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 10. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $123,141.07, together with interest from 03/28/2008 at the rate of $18.59 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. PHEIAN HALLINAN & SCHMIEG, LLP By: qAj? LA NCE T. PHELAN, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE DANIEL G. SCHMIEG, ESQUIRE MICHELE M. BRADFORD, ESQUIRE JUDITH T. ROMANO, ESQUIRE SHEETAL R. SHAH-JANI, ESQUIRE JENINE R. DAVEY, ESQUIRE MICHAEL E. CARLETON, ESQUIRE VIVEK SRIVASTAVA, ESQUIRE JAY B. JONES, ESQUIRE PETER MULCAHY, ESQUIRE ANDREW SPIVACK, ESQUIRE Attorneys for Plaintiff File #: 174192 LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land situate in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, and described according to a survey made by Gerrit J. Betz, Registered Surveyor, dated May 12, 1973, as follows, to wit: BEGINNING at a hub on the southeasterly side of Brandy Lane at the corner of lands now or formerly of Robert McNally being House No. 414, said point being measured along the said side of Brandy Lane, 632 feet to the corner line of North Filbert Street; thence extending from said point of beginning and along the said side of Brandy Lane, North 42 degrees 45 minutes East the distance of 62.50 feet to a point at the corner of lands now or formerly of J & M Masonary Contractors; thence along lands now or formerly of J M Masonary Contractors, south 47 degrees 15 minutes east, the distance of 275.72 feet to a hub at the corner of lands now or formerly of Joseph Kramer; thence along lands now or formerly of Joseph Kramer, south 42 degrees 00 minutes west, the distance of 62.53 feet to a hub at the corner of lands now or formerly of Robert McNally; thence along lands now or formerly of Robert McNally, north 47 degrees 15 minutes west, the distance of 276.54 feet to a point, the place of HAVING thereon erected a dwelling house know and numbered as 416 Brandy Lane. UNDER AND SUBJECT, nevertheless, to restrictions, conditions and easements of prior record pertaining to said File #: 174192 BEING the same premises which Larry L. McDermott and Donna L. McDermott, his wife, by Deed dated June 21, 1993 and recorded June 23, 1993 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book I-36, page 1148, granted and conveyed unto Jeffrey A. Sampson and Teresa M. Shughart, now known as Teresa M. Sampson, his wife. PARCEL: 18-22-0521-001 File #: 174192 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 unsworn falsifications to authorities. 4 A -4 VmYy for Plaintiff DATE: n O 3 O 0 -?9 O SHERIFF'S RETURN - REGULAR CASE NO: 2008-02058 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PHH MORTGAGE CORPORATION VS NAILOR MICHAEL S RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE NAILOR MICHAEL S DEFENDANT the at 1001:00 HOURS, on the 11th day of April , 2008 at 416 BRANDY LANE MECHANICSBURG, PA 17055 DON NAILOR, FATHER was served upon by handing to a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 10.00 .00 10.00 .00 38.00 Sworn and Subscibed to before me this day So Answers: a R. Thomas Kline 04/15/2008 PHELAN HALLINAN SCHMIEG By: 1?? ?e Deputy Sheriff of A. D. PHELAN HALLINAN & SCHMIEG, LLP FRANCIS S. HALLINAN, ESQ., Id. No. 62695 ONE PENN CENTER PLAZA, SUITE 1400 ATTORNEY FOR PLAINTIFF PHILADELPHIA, PA 19103 (215) 563-7000 PHH MORTGAGE CORPORATION COURT OF COMMON PLEAS Plaintiff CIVIL DIVISION VS. NO. 08-2058 CIVIL TERM MICHAEL S. NAILOR CUMBERLAND COUNTY Defendant(s) 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. Phelan Hallinan & Schmieg, LLP Attorney for laintiff ?7 By: Franci . Hallman, Esquire Date: 5/21/08 PHS #: 174192 VERIFICATION Marc. '5 14%V% g' (Le hereby states that he/she is ?-) L_ of PHH MORTGAGE CORPORATION, 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. Name: DATE: L!-`' JV0k' Title: \f1 w PV4?I Company: PHH MORTGAGE CORPORATION Loan:0028993970 File #: 174192 PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 PHH MORTGAGE CORPORATION Plaintiff Vs. MICHAEL S. NAILOR Defendant(s) ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION NO. 08-2058 CIVIL TERM CUMBERLAND COUNTY CERTIFICATE OF SERVICE I hereby certify that a strue and correct copy of Plaintiff's Praecipe to attach Verification of Complaint was sent via first class mail to the following on the date listed below: MICHAEL S. NAILOR 416 BRANDY LANE MECHANCSBRG, PA 17055 Phelan Hallman & Schmieg, LLP Attorney for Plaintiff By: Francis . Hallman, Esq `re Date: 5/21/08 r``J (" C J -.-? t '-? ?+ 7 -3_ r,? T _ _, _ ?: - ?? _.? ?=-t rA? - ? `?.? PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 Attorney for Plaintiff ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 PHH MORTGAGE CORPORATION 3000 LEADENHALL ROAD OR 4001 LEADENHALL ROAD MOUNT LAUREL, NJ 08054 Plaintiff, V. CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 2008-02058 MICHAEL S. NAILOR 416 BRADY LANE MECHANICSBUG, PA 17055 Defendant(s). PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter an in rem judgment in favor of the Plaintiff and against MICHAEL S. NAILOR, 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 $123,141.07 Interest from 03/29/2008 to 06/19/2008 $1,542.97 TOTAL $124,684.04 I hereby certify that (1) the addresses of the Plaintiff and Defendant(s) are as shown above, and (2) that notice has been given in accordance with Rule 237.1, copy attached. DANIEL G. S MIEG, ES IRE Attorney for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: P O PRO 174192 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 PHH MORTGAGE CORPORATION 3000 LEADENHALL ROAD OR 4001 LEADENHALL ROAD Plaintiff, V. MICHAEL S. NAILOR Defendant(s). ATTORNEY FOR PLAINTIFF CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 2008-02058 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 MICHAEL S. NAILOR is over 18 years of age and resides at, 416 BRADY LANE, MECHANICSBUG, PA 17055. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. r DANIEL G. SCHMIEG, UIRE Attorney for Plaints f PHELAN HALLINAN & SCHMIEG, LLP ti By: Lawrence T. Phelan, Esq., Id. No. 32227 ATTORNEY FOR PLAINTIFF Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Philadelphia, PA 19103 15) 563-7000 PHH MORTGAGE CORPORATION Plaintiff Vs. MICHAEL S. NAILOR Defendants TO: MICHAEL S. NAILOR 416 BRANDY LANE MECHANCSBRG, PA 17055 DATE OF NOTICE: MAY 3n, 2008 COURT OF COMMON PLEAS CIVIL DIVISION : CUMBERLAND COUNTY NO. 2008-02058 THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. THIS NOTICE IS SENT TO YOU IN AN. ATTEMPT TO COLLECT THE INDEBTEDNESS REFERRED TO HEREIN, AND ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE.IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY AS ENFORCEMENT OF LIEN AGAINST PROPERTY. IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. -11, CUMBERLAND COUNTY LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (800)990-9108 00 L Brittany Boyer, Leg A sista ?? r C'S ..h • . (Rule of Civil Procedure No. 236) - Revised IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW PHH MORTGAGE CORPORATION 3000 LEADENHALL ROAD OR 4001 CUMBERLAND COUNTY LEADENHALL ROAD COURT OF COMMON PLEAS CIVIL DIVISION Plaintiff, V. NO. 2008-02058 MICHAEL S. NAILOR Defendant(s). Notice is given that a Judgment in the above-captioned matter has been entered against you on 200R. By: DEPUTY If you have any questions concerning this matter, please contact: DANIEL G. SC MIEG, ES IRE Attorney for Plaintiff ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 "THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY." PHELAN HALLINAN & SCHMIEG, LLP By: DANIEL G. SCHMIEG Identification No. 62205 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 Attorney for Plaintiff (215) 563-7000 PHH MORTGAGE CORPORATION Plaintiff COURT OF COMMON PLEAS CIVIL DIVISION CUMBERLAND COUNTY vs MICHAEL S. NAILOR Defendant(s) NO. 08-2058 CIVIL TERM DANIEL G. SCHMIEG, ESQUIRE, attorney for the Plaintiff, hereby certifies that, to the best of his knowledge, information and belief the Mortgage Premises was erroneously listed as: The correct name for the Mortgage Premises is: Kindly change the information on the docket. Da.,.-J SA?:? DANIEL G. SCHMIEG, ESQUI Attorney for Plaintiff Ax cs : ? .. 311 N> c.a A (800) 990-9108 PRAECIPE FOR WRIT OF EXECUTION - (MORTGAGE FORECLOSURE) P.R.C.P. 3180-3183 PHH MORTGAGE CORPORATION Plaintiff, V. No. 08-2058 CIVIL TERM MICHAEL S. NAILOR Defendant(s). TO THE DIRECTOR OF THE OFFICE OF THE PROTHONOTARY: Issue writ of execution in the above matter: Amount Due Interest from 06/20/2008 - 12/10/2008 (per diem -$20.50) Add'l Costs TOTAL $124,684.04 $3,567.00 and Costs $2.326.00 $130,577.04 DANIEL G. SCHMIEG, ESQUIRE One Penn Center at Suburban Statio 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 Attorney for Plaintiff Note: Please attach description of property.No. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a representative of the plaintiff at, the Sheriff's Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. 174192 O O ? 4W O N o o? ? ? Oa ?v F ? -a oo w ?n ?n 0 d L7 U o ? A5 rn c- e$ .0 0 0 ° + PHH MORTGAGE CORPORATION CUMBERLAND COUNTY Plaintiff, V. COURT OF COMMON PLEAS MICHAEL S. NAILOR CIVIL DIVISION Defendant(s). NO. 08-2058 CIVIL TERM AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. 1) PHH MORTGAGE CORPORATION, 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 ,416 BRANDY LANE, MECHANICSBURG, PA 17055. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBUG, PA 17055 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) None 5. Name and address of every other person who has any record lien on the property: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) Tenant/Occupant Domestic Relations of Cumberland County Commonwealth of Pennsylvania Department of Welfare 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 416 BRANDY LANE MECHANICSBURG, PA 17055 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 authorities. August 5, 2008 fu~ J j'? DATE DANIEL G. SCHMIEG, ESQUI Attorney for Plaintiff C C= ?i m a cts; ' rte ,. ITS LO 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 PHH MORTGAGE CORPORATION Plaintiff, V. MICHAEL S. NAILOR Defendant(s). ATTORNEY FOR PLAINTIFF CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 08-2058 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: O 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. J DANIEL G. SCHMIEG, ESQUI Attorney for Plaintiff ° ?i s ? G) ??.. pis ..;': ? cn r;;y ,, ? -? ? {-? __. ?? ?? `? rv =? Y PHH MORTGAGE CORPORATION Plaintiff, V. MICHAEL S. NAILOR Defendant(s). CUMBERLAND COUNTY No. 08-2058 CIVIL TERM August 5, 2008 TO: MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBUG, PA 17055 "THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCYAND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE ANATTEMPT TO COLLECTA DEBT, BUT ONLYENFORCEMENT OFA LIENAGAINST PROPERTY. ** Your house (real estate) at, 416 BRANDY LANE, MECHANICSBURG, PA 17055, is scheduled to be sold at the Sheriffs Sale on DECEMBER 10, 2008 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $124,684.04 obtained by PHH MORTGAGE CORPORATION (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 LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land situate in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, and described according to a survey made by Gerrit J. Betz, Registered Surveyor, dated May 12, 1973, as follows, to wit: BEGINNING at a hub on the southeasterly side of Brandy Lane at the corner of lands now or formerly of Robert McNally being House No. 414, said point being measured along the said side of Brandy Lane, 632 feet to the corner line of North Filbert Street; thence extending from said point of beginning and along the said side of Brandy Lane, North 42 degrees 45 minutes East the distance of 62.50 feet to a point at the corner of lands now or formerly of J & M Masonary Contractors; thence along lands now or formerly of J M Masonary Contractors, south 47 degrees 15 minutes east, the distance of 275.72 feet to a hub at the corner of lands now or formerly of Joseph Kramer; thence along lands now or formerly of Joseph Kramer, south 42 degrees 00 minutes west, the distance of 62.53 feet to a hub at the corner of lands now or formerly of Robert McNally; thence along lands now or formerly of Robert McNally, north 47 degrees 15 minutes west, the distance of 276.54 feet to a point, the place of HAVING thereon erected a dwelling house know and numbered as 416 Brandy Lane. UNDER AND SUBJECT, nevertheless, to restrictions, conditions and easements of prior record pertaining to said BEING the same premises which Larry L. McDermott and Donna L. McDermott, his wife, by Deed dated June 21, 1993 and recorded June 23, 1993 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book I-36, page 1148, granted and conveyed unto Jeffrey A. Sampson and Teresa M. Shughart, now known as Teresa M. Sampson, his wife. BEING THE SAME PREMISES VESTED IN Michael S. Nailor, single individual, by Deed from Jeffrey A. Sampson and Teresa M. Sampson, fka, Teresa M. Shughart, h/w, dated 12/10/2004, recorded 12/13/2004, in Deed Book 266, page 3352. PREMISES BEING: 416 BRANDY LANE, MECHANICSBURG, PA 17055 PARCEL NO. 18-22-0521-001 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 08-2058 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due PHH MORTGAGE CORPORATION, Plaintiff (s) From MICHAEL S. NAILOR (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 $124,684.04 L.L.$ 0.50 Interest from 6/20/08 -12/10/08 (per diem - $20.50) - $3,567.00 and Costs Atty's Comm % Due Prothy $2.00 Atty Paid $154.50 Other Costs $2,326.00 Plaintiff Paid Date: 8/06/08 P6VIT roth otary n (Seal) By: to " Deputy REQUESTING PARTY: Name: DANIEL G. SCHMIEG, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, LLP ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 62205 AFFIDAVIT OF SERVICE PLAINTIFF PHH MORTGAGE CORPORATION DEFENDANT(S) MICHAEL S. NAILOR SERVE MICHAEL S. NAILOR AT: 416 BRANDY LANE MECHANICSBUG, PA 17055 SERVED CUMBERLAND COUNTY No. 08-2058 CIVIL TERM ACCT. #174192 Type of Action - Notice of Sheriff's Sale Sale Date: DECEMBER 10, 2008 Served and made known to M iC EL S. k4 i" R , Defendant, on the 19 411 day of C*ils7 , 20051, at 3; D o'clock f?-m., at 4I6 $RhMDy 4 tia, t1/i roc N(cS8.yjq& , Commonwealth of Pennsylvania, in the manner described below: Defendant personally served. Adult family member with whom Defendant(s) reside(s). Name and Relationship is _ Adult in charge of Defendant(s)'s residence who refused to give name or relationship. Manager/Clerk of place of lodging in which Defendant(s) reside(s). Agent or person in charge of Defendant(s)'s office or usual place of business. an officer of said Defendant(s)'s company. Other: Description: A Age 36 S g Height ' ('. Weight _tT0 Race W Sex /4 Other I, Raijk.17 it f0 LA- , a competent adult, being duly sworn according to law, depose and state that I personally handed a true and correct copy of the Notice of Sheriff's Sale in the manner as set forth herein, issued in the captioned case on the date and at the address indicated above. Sworn to and su cribed befor me this N day of JET Orr-, 200 Nota By: PLE,KSE ATTE SERVICE AT LEAST 3 TIMES. INDICATE DATES & TIMES OF SERVICE ATTEMPTED. THEODORE J. HARRIS NOTARY PUSLIC NOT SERVED STATE OF NEW JERSEY O y , 200. at o'clock _.m., Defendant NOT FOUND because: Moved Unknown No Answer Vacant 1s` Attempt: I / Time: 2nd Attempt: Time: 3rd Attempt: Time: Sworn to and subscribed Attorney for Plaintiff before me this day DANIEL G. SCHMIEG, Esquire - I.D. No. 62205 of 200. One Penn Center at Suburban Station, Suite 1400 Notary: By: 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 7 lt7 ?> "''4 ?: ??' ,,,,, ? ??` 9 ;. ? t? c's i?'., b ???:? t. 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 PHH MORTGAGE CORPORATION Court of Common Pleas Plaintiff Civil Division VS. CUMBERLAND County MICHAEL S. NAILOR No. 08-2058 CIVIL TERM Defendant PLAINTIFF'S MOTION TO REASSESS DAMAGES Plaintiff, by its Attorney, Michele M. Bradford, Esquire, moves the Court to direct the Prothonotary to amend the judgment in this matter, and in support thereof avers the following: Plaintiff commenced this foreclosure action by filing a Complaint on April 1, 2008, a true and correct copy of which is attached hereto, made part hereof, and marked as Exhibit "A". 2. Judgment was entered on June 23, 2008 in the amount of $124,684.04. A true and correct copy of the praecipe for judgment is attached hereto, made part hereof, and marked as Exhibit "B". 3. Pursuant to Pennsylvania Rule of Civil Procedure 1037(b)(1), a default judgment containing a dollar amount must be entered for the amount claimed in the complaint and any item which can be calculated from the complaint, i.e. bringing the interest current. However, new items cannot be added at the time of entry of the judgment. 4. The Property is listed for Sheriffs Sale on December 10, 2008. 5. Additional sums have been incurred or expended on Defendant's behalf since the Complaint was filed and Defendant has been given credit for any payments that have been made since the judgment. The amount of damages should now read as follows: Principal Balance $117,987.26 Interest Through December 10, 2008 $8,103.93 Per Diem $18.59 Late Charges $257.40 Legal fees $1,600.00 Cost of Suit and Title $1,314.00 Sheriffs Sale Costs $0.00 Property Inspections/ Property Preservation $198.75 Appraisal/Brokers Price Opinion $0.00 Mortgage Insurance Premium / $0.00 Private Mortgage Insurance Non Sufficient Funds Charge $0.00 Suspense/Misc. Credits ($0.00) Escrow Deficit $1,621.53 TOTAL $131,082.87 6. The judgment formerly entered is insufficient to satisfy the amounts due on the Mortgage. 7. Under the terms of the Mortgage and Pennsylvania law, Plaintiff is entitled to inclusion of the figures set forth above in the amount of judgment against the Defendant. 8. Plaintiff's foreclosure judgment is in rem only and does not include personal liability, as addressed in Plaintiff's attached brief. 9. In accordance with Cumberland County Local Rule 208.3(9), Plaintiff sent a copy of its proposed Motion to Reassess Damages and Order to the Defendant on September 24, 2008 and requested the Defendant's Concurrence. Plaintiff did not receive any response from the Defendant. A true and correct copy of Plaintiff's letter pursuant to Local Rule 208.3(9) and certification of mailing are attached hereto, made part hereof, and marked as Exhibit "C". 10. No judge has previously entered a ruling in this case. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. DATE: l7 `6 By: MBradford, LLP Mic Attorney for Plaintiff PHELAN HALLINAN & SCHMMG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 PHH MORTGAGE CORPORATION ATTORNEY FOR PLAINTIFF Court of Common Pleas Plaintiff Civil Division VS. CUMBERLAND County MICHAEL S. NAILOR No. 08-2058 CIVIL TERM Defendant MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REASSESS DAMAGES 1. BACKGROUND OF CASE MICHAEL S. NAILOR 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 416 BRANDY LANE, MECHANICSBURG, PA 17055. The Mortgage indicates that in the event a default in the mortgage, Plaintiff may advance any necessary sums, including taxes, insurance, and other items, in order to protect the security of the Mortgage. In the instant case, Defendant defaulted under the Mortgage by failing to tender numerous, promised monthly mortgage payments. Accordingly, after it was clear that the default would not be cured, Plaintiff commenced the instant mortgage foreclosure action. Judgment was subsequently entered by the Court, and the Property is currently scheduled for Sheriffs Sale. Because of the excessive period of time between the initiation of the mortgage foreclosure action, the entry of judgment and the Sheriffs Sale date, damages as previously assessed are outdated and need to be adjusted to include current interest, real estate taxes, insurance premiums, costs of collection, and other expenses which Plaintiff has been obligated to pay under the Mortgage in order to protect its interests. It is also appropriate to give Defendant credit for monthly payments tendered through bankruptcy, if any. II. LEGAL ARGUMENT TO AMEND PLAINTIFF'S IN REM JUDGMENT It is settled law in Pennsylvania that the Court may exercise its equitable powers to control the enforcement of a judgment and to grant any relief until that judgment is satisfied. 20 P.L.E., Judgments § 191. Stephenson v. Butts, 187 Pa.Super. 55, 59,142 A.2d 319,321 (1958). Chase Home Mortgage Corporation of the Southwest v. Good, 537 A.2d 22,24 (Pa.Super. 1988). The Pennsylvania Superior Court has repeatedly cited the right of a foreclosing creditor to amend its judgment prior to the Sheriffs sale. Nationsbanc Mortgage Corp. v. Grillo, 827 A.2d 489 (Pa.Super. 2003). Morgan Guaranty Trust Co. ofN.Y. vs. Mowl, 705 A.2d 923 (Pa. Super. 1998). Union National Bank ofPittsburgh v. Cion oli, 407 Pa. Super. 171, 595 A.2d 179 (1991). The Supreme Court of Pennsylvania recognized in Landau v. Western Pa. Nat. Bank 445 Pa. 117, 282 A.2d 335 (1971), that the debt owed on a Mortgage is subject to change and, in fact, can be expected to change from day to day because the bank must advance sums in order to protect its collateral. Because a Mortgage lien is not extinguished until the debt is paid, Plaintiff must protect its collateral up until the date of sale. Beckman v. Altoona Trust Co., 332 Pa. 545, 2 A.2d 826 (1939). Because a judgment in mortgage foreclosure is strictly in rem, it is critical that the judgment reflect those amounts expended by the Plaintiff in protecting the property. Meco Reality Company v. Burns, 414 Pa. 495, 200 A.2d 335 (1971). Plaintiff submits that if it goes to sale without the requested amended judgment, and if there is competitive bidding for the Property, Plaintiff will suffer a significant loss in that it would not be able to recoup monies it advanced to protect its interests. Conversely, amending the in rem judgment will not be detrimental to Defendant as it imputes no personal liability. In B.C.Y. v. Bukovich, the Pennsylvania Superior Court reiterated its long standing rule that a Court has the inherent power to correct a judgment to conform to the facts of a case. 257 Pa. Super. 157, 390 A.2d 276 (1978). In the within case, the amount of the original judgment does not adequately reflect the additional sums due on the Mortgage due to Defendant's failure to tender payments during the foreclosure proceeding and the advances made by the mortgage company. The Mortgage plainly requires the mortgagor to tender to the mortgagee monthly payments of principal and interest until the Promissory Note accompanying the Mortgage is paid in full. The mortgagor is also required to remit to the mortgagee sufficient sums to pay monthly mortgage insurance premiums, fire insurance premiums, taxes and other assessments relating to the Property. The mortgagor has breached the terms of the Mortgage, and Plaintiff has been forced to incur significant unjust financial losses on this loan. III. THE FORECLOSURE JUDGMENT IS IN REM ONLY The within case is a mortgage foreclosure action, the sole purpose of which is to take the mortgaged property to Sheriffs Sale. Pennsylvania law makes clear that an action in mortgage foreclosure is strictly in rem and does not include any personal liability. Newtown Village Partnership v. Kimmel, 424 Pa. Super 53, 55, 621 A.2d 1036, 1037 (1993). Signal Consumer Discount Company v. Babuscio, 257 Pa. Super 101, 109, 390 A.2d 266, 270 (1978). Pennsylvania Rule of Civil Procedure 1141(a). However, Pennsylvania law requires that the foreclosure action demand judgment for the amount due. Pa.R.C.P. 1147(6). The purpose of the dollar amount in the in rem judgment is for bidding at the Sheriffs Sale. In the event that a third party real estate speculator were to bid on the mortgaged property at the Sheriffs Sale and become the successful purchaser, Plaintiff would receive the amount of the in rem judgment from the Sheriff. IV. The Mortgage clearly requires that the Defendant shall promptly pay when due the principal and interest due on the outstanding debt. In addition, the Note specifies the rate of interest to be charged until the debt is paid in full or otherwise satisfied. Specifically, interest from 30 days prior to the date of default through the date of the impending Sheriff's sale has been requested. V. TAXES AND INSURANCE If Plaintiff had not advanced monies for taxes and insurance throughout the foreclosure proceeding, Plaintiff would have risked loss of its collateral. If the Property were sold at a tax sale, Plaintiffs interest very well may be divested, and Plaintiff would sustain a complete loss on the outstanding balance due on the loan. If the Property were damaged in a fire, Plaintiff would not be able to obtain insurance proceeds to restore the Property if it did not pay the insurance premiums. Most importantly, the Mortgage specifically provides that the mortgagee may advance the monies for taxes and insurance and charge these payments against the escrow account. Plaintiff is simply seeking to have the Court enforce the terms of the Mortgage. VI. ATTORNEY'S FEES The amount of attorney's fees requested in the Motion to Reassess Damages is in accordance with the loan documents and Pennsylvania law. Pennsylvania Courts have long and repeatedly concluded that a request of five percent of the outstanding principal balance is reasonable and enforceable as an attorney's fee. Robinson v. Loomis, 51 Pa. 78 (1865); First Federal Savings and Loan Association v. Street Road Shopping Center, 68 D&C 2d 751, 755 (1974). In Federal Land Bank of Baltimore v. Fetner, the Superior Court held that an attorney's fee of ten percent of the original mortgage amount is not unconscionable. 410 A.2d 344 (Pa. Super. 1979). Recently, the Superior Court cited Fetner in confirming that an attorney's fee of ten percent included in the judgment in mortgage foreclosure action was reasonable. Citicorp v. Morrisville Hampton 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: ?A 6 B MBradford, LLP e Attorney for Plaintiff Exhibit "A" PHELAN HALLINAN & SCHMD:G, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 MICHELE M. BRADFORD, ESQ., Id. No. 69849 JUDrrH T. ROMANO, ESQ., Id. No. 58745 SHEETAL SHAH-JANI, ESQ., Id. No. 81760 JENINE R. DAVEY, ESQ., Id. No. 87077 MICHAEL E. CARLETON, ESQ., Id. No. 203009 VIVEK SRIVASTAVA, ESQ., Id. No. 202331 JAY B. JONES, ESQ., Id. No. 86657 PETER MULCAHY, ESQ., Id. No. 61791 ANDREW SPIVACK, ESQ., Id. No. 84439 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-70M 174192 PHH MORTGAGE CORPORATION 3000 LEADENHALL ROAD OR 4001 LEADENHALL ROAD MOUNT LAUREL, NJ 08054 Plaintiff V. A-g0R%Ey FILE COPY PLEASE RETURN MICHAEL S. NAILOR 416 BRANDY LANE N w ATTORNEY FILE COPY . PLEASE RETURN ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL, DIVISION TERM NO. 03 - OIC 8 bvil -Tern CUMBERLAND COUNTY MECHANCSBRG, PA 17055 +Ne hereby certify the Within to be a -true and correct COPY Of the Defendant original filed-of record CPA L ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE ATTORNEY RETURN Fic #: 174192 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 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 fail to do so, the case ma that if y 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 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 LAWYE O R, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT H IF YOU CANNOT AFFORD TO HIRING A LAWYER, HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH FORMATION ABOUT AGENCIES THAT MAY LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED OFFER FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9108 File #: 174192 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 COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN File #: 174192 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 #: 174192 1. Plaintiff is PHH MORTGAGE CORPORATION 3000 LEADENHALL ROAD OR 4001 LEADENHALL ROAD MOUNT LAUREL, NJ 08054 2. The name(s) and last known address(es) of the Defendant(s) are: MICHAEL S. NAILOR 416 BRANDY LANE MECHANCSBRG, PA 17055 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 12/10/2004 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to MEMBERS 1ST FEDERAL CREDIT UNION which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No. 1890, Page 4983. By Assignment of Mortgage recorded 02/17/2005 the mortgage was Assigned To MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. which Assignment is recorded is Assignment Of Mortgage Book No. 715, Page 1373. The 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 11/01/2007 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 File #: 174192 by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. 6. The following amounts are due on the mortgage: Principal Balance $117,987.26 Interest $3,346.20 10/01/2007 through 03/28/2008 (Per Diem $18.59) Attorney's Fees $1,250.00 Cumulative Late Charges $257.40 12/10/2004 to 03/28/2008 Cost of Suit and Title Search 550.00 Subtotal $123,390.86 Escrow Credit ($249.79) Defecit $0.00 Subtotal 249.79 TOTAL $123,141.07 7. If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. 8. 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) hasthave 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 File #: 174192 discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. 9. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 10.. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $123,141.07, together with interest from 03/28/2008 at the rate of $18.59 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 B y: IqA? - LAWRENCE T. PHELAN, ESQUIRE l & 47 or FRANCIS S. HALLINAN, ESQUIRE& DANIEL G. SCHMIEG, ESQUIRE MICHELE M. BRADFORD, ESQUIRE JUDITH T. ROMANO, ESQUIRE SHEETAL R. SHAH-JANI, ESQUIRE JENINE R. DAVEY, ESQUIRE MICHAEL E. CARLETON, ESQUIRE VIVEK SRIVASTAVA, ESQUIRE JAY B. JONES, ESQUIRE PETER MULCAHY, ESQUIRE ANDREW SPIVACK, ESQUIRE Attorneys for Plaintiff File #: 174192 LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land situate in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, and described according to a survey made by Gerrit J. Betz, Registered Surveyor, dated May 12, 1973, as follows, to wit: BEGINNING at a hub on the southeasterly side of Brandy Lane at the comer of lands now or formerly of Robert McNally being House No. 414, said point being measured along the said side of Brandy Lane, 632 feet to the corner line of North Filbert Street; thence extending from said point of beginning and along the said side of Brandy Lane, North 42 degrees 45 minutes East the distance of 62.50 feet to a point at the comer of lands now or formerly of J & M Masonary Contractors; thence along lands now or formerly of J M Masonary Contractors, south 47 degrees 15 minutes east, the distance of 275.72 feet to a hub at the corner of lands now or formerly of Joseph Kramer; thence along lands now or formerly of Joseph Kramer, south 42 degrees 00 minutes west, the distance of 62.53 feet to a hub at the corner of lands now or formerly of Robert McNally; thence along lands now or formerly of Robert McNally, north 47 degrees 15 minutes west, the distance of 276.54 feet to a point, the place of HAVING thereon erected a dwelling house know and numbered as 416 Brandy Lane. UNDER AND SUBJECT, nevertheless, to restrictions, conditions and easements of prior record pertaining to said File #: 174192 BEING the same premises which Lary L. McDermott and Donna L. McDermott, his wife, by Deed dated June 21, 1993 and recorded June 23, 1993 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book I-36, page 1148, granted and conveyed unto Jeffrey A. Sampson and Teresa M. Shughart, now known as Teresa M. Sampson, his wife. PARCEL: 18-22-0521-001 File #: 174192 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 recei t. P 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. DATE: 2 o fl PM?1aintiff n /? ?- Exhibit "B" PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 Attorney for Plaintiff ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 PHH MORTGAGE CORPORATION 3000 LEADENHALL ROAD OR 4001 • pyCUMBERLAND COUNTY LEADENE ALL ROAD jt S+ COURT OF COMMON PLEAS MOUNT LAUREL, NJ 08054 ?oCIVIL DIVISION Plaintiff, 'QV V. NO. 2008-02058 MICHAEL S. NAILOR 416 BRADY LANE MECHANICSBUG, PA 17055 C? Defendant(s). ?r PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO All - ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter an in rem judgment in favor of the Plaintiff and against MICHAEL S."NAI-BOR, Defendant(s) for failure to file an Answer to Plaintiffs Com within 20 days from service thereof and for Foreclosure and Sale of the mortgaged pre ess Plaintiffs damages as follows: As set forth in Complaint QL zRo $123,141.07 Interest from 03/29/2008 to 06/19/2008 $1,542.97 TOTAL $124,684.04 I hereby certify that (1) the addresses of the Plaintiff and Defendant(s) are as shown above, and (2) that notice has been given in accordance with Rule 237.1, copy attached. N?T1'Oii? ? f 8 r D GMIEftE IRE Attorney for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: P O PRO 174192 Exhibit "C" PHELAN HALLINAN & SCHMIEG, LLP 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103 (215) 563-7000 FAX#: (215) 563-3459 michele.bradford@fedphe.com Michele M. Bradford, Esquire Representing Lenders in Pennsylvania and New Jersey September 24, 2008 MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBURG, PA 17055 RE: PHH MORTGAGE CORPORATION vs. MICHAEL S. NAILOR Premises Address: 416 BRANDY LANE MECHANICSBURG, PA 17055 CUMBERLAND County CCP, No. 08-2058 CIVIL TERM Dear Defendant, Enclosed please find a true and correct copy of my proposed Motion to Reassess Damages and Order. In accordance with Cumberland County Local Rule 208.3(9), I am seeking your concurrence with the requested relief that is, increasing the amount of the judgment. Please respond to me within 5 days, by Monday, September 29, 2008. Should you have further questions or concerns, please do not hesitate to contact me. Otherwise, please be guided accordingly. e trul yABfo Mi hel M. Esquire For Phelan Hallinan & Schmieg, LLP Enclosure O O ,It a? a W •° U ,D Q ? a? U as a0 C ? y ? z44 0 i° COL A ao ?o`3 ° m 5HV o Q W E0? so ?s 3aoocnz woa-4 037ibw F ° N U y 8002 OZ d3S 0 LOS 1Zb000 R 00&30 s M Z B o c a O _ SMAOO AINAld -! p d T R Hf 9'% 'p t rv-; E ? ? o 'a N?° m ya '~ o E a°i o V N 'A VO 9A w? e LQ W VI C ° C a O og ?Vix ?. W "O E a a . V w z O ? y ? z V a ?a 4• r? o g Ha i .c N z b ? x w S? V E ll M ?n ?D l? o0 o' O N. 9 M vi ° 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 unworn falsification to authorities. DATE: q I M 6S VI V P 1 1' c ieg, LLP By: Michele M. Bradford, quire Attorney for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire, Atty. I.D. No. 69849 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 PHH MORTGAGE CORPORATION Plaintiff vs. MICHAEL S. NAILOR Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 08-2058 CIVIL TERM CERTIFICATION OF SERVICE I hereby certify that true and correct copies of Plaintiffs Motion to Reassess Damages, and Brief in Support thereof, were sent to the following individuals on the date indicated below. MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBURG, PA 17055 DATE: a P 1 lin chmieg, LLP B: ichele M. Bradford, Esquire Attorney for Plaintiff OCT 0 3 2008/n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA PHH MORTGAGE CORPORATION Court of Common Pleas Plaintiff Civil Division VS. CUMBERLAND County MICHAEL S. NAILOR No. 08-2058 CIVIL TERM Defendant RULE AND NOW, this day of 2008, a Rule is entered upon the Defendant to show cause why an Order should not be entered granting Plaintiff's Motion to Reassess Damages. Rule Returnable , C o e um er an oun ourt ouse, , BY THE ZMichele M. Bradford, Esquire Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 TEL: (215) 563-7000 FAX: (215) 563-3459 michele.bradford@fed hp e.com Clap t ?C-S /riot t 1o/Z/9:?e J. MICHALoL S. NAILOR 416 BRANDY LANE MECHANICSBURG, PA 17055 174192 ?.? <. ?? et'IL =? ?, ?_,, 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 PHH MORTGAGE CORPORATION Court of Common Pleas Plaintiff vs. MICHAEL S. NAILOR Civil Division CUMBERLAND County No. 08-2058 CIVIL TERM Defendant CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of our Motion to Reassess Damages noting a Rule Return date of October 26, 2008 was sent to the following individual on the date indicated below. MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBURG, PA 17055 1 I .1, a & Schmieg, LLP DATE: l? 1N 6? By: Mic ele M. Bra ord, Esquire Attorney for Plaintiff c. {= 3l C': rn Ln C, A. PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 PHH MORTGAGE CORPORATION Plaintiff VS. MICHAEL S. NAILOR Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 08-2058 CIVIL TERM MOTION TO MAKE RULE ABSOLUTE PHH MORTGAGE CORPORATION, by and through its attorney, Michele M. Bradford, Esquire, hereby petitions this Honorable Court to make Rule to Show Cause absolute in the above- captioned action, and in support thereof avers as follows: 1. That it is the Plaintiff in this action. 2. A Motion to Reassess Damages was filed with the Court on October 1, 2008. 3. A Rule was entered by the Court on or about October 6, 2008 directing the Defendant to show cause why the Motion to Reassess Damages should not be granted. A true and correct copy of the Rule is attached hereto, made part hereof, and marked Exhibit "A". i 4. The Rule to Show Cause was timely served upon all parties on October 14, 2008, in accordance with the applicable rules of civil procedure. A true and correct copy of the Certificate of Service is attached hereto, made part hereof, and marked Exhibit "B". Defendant failed to respond or otherwise plead by the Rule Returnable date of October 26, 2008. WHEREFORE, Plaintiff requests that this Honorable Court make the Rule to Show Cause absolute and grant Plaintiff's Motion to Reassess Damages. MaSchmieg, LLP DATE: By: ich l, uire Attorney for Plaintiff Y? PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 PHH MORTGAGE CORPORATION Plaintiff VS. MICHAEL S. NAILOR Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 08-2058 CIVIL TERM BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO MAKE RULE ABSOLUTE A Motion to Reassess Damages was filed with the Court on October 1, 2008. A Rule was entered by the Court on or about October 6, 2008 directing the Defendant to show cause why the Motion to Reassess Damages should not be granted. The Rule to Show Cause was timely served upon all parties on October 14, 2008 in accordance with the applicable rules of civil procedure. Defendant failed to respond or otherwise plead by the Rule Returnable date of October 26, 2008. V WHEREFORE, Plaintiff requests that this Honorable Court make the Rule to Show Cause absolute and grant Plaintiff's Motion to Reassess Damages. DATE: ,04" a M P 1 ' & chmieg, LLP By: Miche e M. Bradford squire Attorney for Plaintiff Exhibit "A" OCT 0'3 2008/n IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA PHH MORTGAGE CORPORATION Plaintiff vs. MICHAEL S. NAILOR Defendant Court of Common Pleas Civil Division CUMBERLAND County No. 08-2058 CIVIL TERM RULE AND NOW, this day of C. 2008, a Rule is entered upon the Defendant to show cause why an Order should not be entered granting Plaintiff's Motion to Reassess Damages. J Rule Returnable o-t C o e um er an oun y o ouse, , BY THE CO J. Michele M. Bradford, Esquire MICHA S. NAILOR Phelan Hallinan & Schmieg, LLP 416 BRANDY LANE 1617 JFK Boulevard, Suite 1400 MECHANICSBURG, PA 17055 Philadelphia, PA 19103 TEL: (215) 563-7000 FAX: (215) 563-3459 . michele.bradford n fednhe com 174192 1 CL? Exhibit "B" r1 -n Cl r?i?,tr?r ` C7 : 1'; IF ATTORNEY FOR PC1]*NT C3 Court of Common Pleas Plaintiff Civil Division vs. , CUMBERLAND County MICHAEL S. NAILOR No. 08-2058 CIVIL TERM Defendant CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of our Motion to Reassess Damages noting a Rule Return date of October 26, 2008 was sent to the wing individual on the date indicated below. PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 X215) 563-7000 PHH MORTGAGE CORPORATION MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBURG, PA 17055 DATE: O I 6`6 Schmieg, LLP V1. Bradford, Esquire for Plaintiff y 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 Make Rule Absolute 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 sworn penalties of 18 Pa.C.S. §4904 relating to the unsworn falsification of authorities. DATE: I I I MMM.Wadfo6&, ieg, LLP By: Michele quire Attorn ey for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire, Atty. I.D. No. 69849 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 PHH MORTGAGE CORPORATION Plaintiff VS. MICHAEL S. NAILOR Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 08-2058 CIVIL TERM CERTIFICATION OF SERVICE I hereby certify that true and correct copies of Plaintiff's Motion to Make Rule Absolute and Brief in Support thereof were served upon the following individuals on the date indicated below. MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBURG, PA 17055 DATE: By: MlIeBrraddfoorrY, ieg, LLP quire At torney for Plaintiff ?, _? ? -r.n ? _.r.? ?_., ? _' f ti ?7 -r? ?... ?. i ? .. r :.. t ... ? .. j ¢' Xn?? Coq ? ,. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PHH MORTGAGE CORPORATION Plaintiff V. CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION MICHAEL S. NAILOR Defendant(s) NO. 08-2058 CIVIL TERM AFFIDAVIT OF SERVICE PURSUANT TO RULE 3129 COMMONWEALTH OF PENNSYLVANIA ) COUNTY OF CUMBERLAND COUNTY ) SS: Plaintiff in the above action sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at: 416 BRANDY LANE, MECHANIC SBURG, PA 17055. As required by Pa. R.C.P. 3129.2(a) Notice of Sale has been given to Lienholders in the manner required by Pa. R.C.P. 3129.2(c) on each of the persons or parties named, at that address set forth on the Affidavit No. 2 (previously filed) and/or Amended Affidavit No. 2 on the date indicated. A copy of the Certificate of Mailing (Form 3817) and/or Certified Mail Return Receipt stamped by the U.S. Postal Service is attached for each notice. DANIEL G. SCHMIE , ESQUIRE Attorney for Plaintiff Date: November 10, 2008 IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a repres n ative 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. 174192 'a 8 ? O Z 75 MO ? a ova a C7 7d q W? a ? 'L7 Q zdo V 7 i 7YV iA Z £l?J d. 0L08Lz o o o . i Y?G - • Q+ d? no • ?I- O fi J?•? Vl d ? ? 27 n H ..r w /? N N N b ? ? w a a . .? -Ro 04-1 ? ? U x > ? N ?a+ a om G t ' z Cl) P4 a. w 0 Ra ? 3 0 F? a 0 M ' P? y+N . a Op? ? ? aaid 4-1 0000 H V E AY to 14 3 &6 N d V ?y O?? a z t- .? N M et h \o l- 00 01 .ter .M+ ?+ .N" x C"i ? C J a r m Cm* NOV; 0 7 20086, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PHH MORTGAGE CORPORATION Court of Common Pleas Plaintiff Civil Division vs. CUMBERLAND County MICHAEL S. NAILOR No. 08-2058 CIVIL TERM Defendant ORDER AND NOW, this day of ?) o v , 2008, upon consideration of Plaintiff's Motion to Make Rule Absolute, it is hereby ORDERED and DECREED, that the Rule entered upon Defendant shall be and is hereby made absolute; and Plaintiff's Motion to Reassess Damages in the above captained matter is hereby GRANTED. The Prothonotary is ordered to amend the judgment and the Sheriff is ordered to amend the writ nunc pro tunc as follows: Principal Balance $117,987.26 Interest Through December 10, 2008 $8,103.93 Per Diem $18.59 Late Charges $257.40 Legal fees $1,600.00 Cost of Suit and Title $1,314.00 Sheriffs Sale Costs $0.00 Property Inspections/ Property Preservation $198.75 Appraisal/Brokers Price Opinion $0.00 Mortgage Insurance Premium / $0.00 Private Mortgage Insurance BY THE COURT J. 174192 Non Sufficient Funds Charge Suspense/Misc. Credits Escrow Deficit TOTAL $0.00 ($0.00) $1,621.53 $131,082.87 Plus interest from December 10, 2008 through the date of sale at six percent per annum. Note: The above figure is not a payoff quote. Sheriffs commission is not included in the above figure. ?'?'? ?8t14Z ? Viz. r PHH Mortgage Corporation In The Court of Common Pleas of VS Cumberland County, Pennsylvania Michael S. Nailor Writ No. 2008-2058 Civil Term Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that on October 9, 2008 at 1007 hours, he served a true copy of the within Real Estate Writ, Notice and Description, in the above entitled action, upon the within named defendant, to wit: Michael S. Nailor, by making known unto Michael S. Nailor personally, at 416 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania its contents and at the same time handing to him personally the said true and correct copy of the same. Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on October 9, 2008 at 1009 hours, she posted a true copy of the within Real Estate Writ, Notice, Poster and Description, in the above entitled action, upon the property of Michael S. Nailor, located at 416 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania according to law. R. Thomas Kline, Sheriff, who being duly sworn according to law, states he served the above Real Estate Writ, Notice, Poster and Description in the following manner: The Sheriff mailed a notice of the pendency of the action to the within named defendant, to wit: Michael S. Nailor, by regular mail to his last known address of 416 Brandy Lane, Mechanicsburg, PA 17055. This letter was mailed under the date of October 16, 2008 and never returned to the Sheriffs Office. R. Thomas Kline, Sheriff, who being duly sworn according to law, states this writ is returned STAYED. Sheriff s Costs: Docketing 30.00 Poundage 20.97 Posting Bills 15.00 Advertising 15.00 Law Library .50 Prothonotary 2.00 Mileage 36.00 Levy 15.00 Surcharge 20.00 Postpone sale 40.00 Law Journal Patriot News Share of bills So Answers: R. Thom Kline, Sheriff BY Real Estate Coordinator 437.00 422.87 ?` vc 9 J y/D1/D 9 ?- LYO5 v3 FILED-CFACE OF THE PFOTH!^ 4OTARY 2099 APR -8 AM 9= 5b CUP, a ?iiNi Y Y PHH MORT(JAGECORPORATION CUMBERLAND COUNTY Plaintiff, V. COURT OF COMMON PLEAS MICHAEL S. NAILOR CIVIL DIVISION Defendant(s). NO. 08-2058 CIVIL TERM AFFIDAVIT PURSUANT TO RULE 3129 (Affidavit No. l) PHH MORTGAGE CORPORATION, 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,416 BRANDY LANE, MECHANICSBURG, PA 17055. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBUG, PA 17055 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) None 5. Name and address of every other person who has any record lien on the property: Name None Last Known Address (if address cannot be reasonably ascertained, please indicate) 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 416 BRANDY LANE MECHANICSBURG, PA 17055 13 North Hanover Street Carlisle, PA 17013 PO Box 2675 Harrisburg, PA 17105 6th Floor, Strawberry Sq., Dept. 28061 Harrisburg, PA 17128 13th Floor, Suite 1300 1001 Liberty Avenue Pittsburgh, PA 15222 P.O. Box 8486 Willow Oak Building Harrisburg, PA 17105 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. August 5, 2008 ??JDATE DANIEL G. SCHMIEG, ESQUI'Re Attorney for Plaintiff PHH MORTGAGE CORPORATION Plaintiff, V. MICHAEL S. NAILOR Defendant(s). CUMBERLAND COUNTY No. 08-2058 CIVIL TERM August 5, 2008 TO: MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBUG, PA 17055 **THIS FIRMISA DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANYINFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOUHAVE PREVIOUSLYRECEIVED A DISCHARGE IN BANKRUPTCYAND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. * * Your house (real estate) at, 416 BRANDY LANE, MECHANICSBURG, PA 17055, is scheduled to be sold at the Sheriffs Sale on DECEMBER 10, 2008 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $124,684.04 obtained by PHH MORTGAGE CORPORATION (the mortgagee) against you. In the event the sale is continued, an announcement will be made at said sale in compliance with Pa.R.C.P., Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriff s Sale, you must take immediate action: 1. The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: (2151563-7000. 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 LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land situate in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, and described according to a survey madg by Gerrit J. Betz, Registered Surveyor, dated May 12, 1973, as follows, to wit: BEGINNING at a hub on the southeasterly side of Brandy Lane at the corner of lands now or formerly of Robert McNally being House No. 414, said point being measured along the said side of Brandy Lane, 632 feet to the corner line of North Filbert Street; thence extending from said point of beginning and along the said side of Brandy Lane, North 42 degrees 45 minutes East the distance of 62.50 feet to a point at the corner of lands now or formerly of J & M Masonary Contractors; thence along lands now or formerly of J M Masonary Contractors, south 47 degrees 15 minutes east, the distance of 275.72 feet to a hub at the corner of lands now or formerly of Joseph Kramer; thence along lands now or formerly of Joseph Kramer, south 42 degrees 00 minutes west, the distance of 62.53 feet to a hub at the corner of lands now or formerly of Robert McNally; thence along lands now or formerly of Robert McNally, north 47 degrees 15 minutes west, the distance of 276.54 feet to a point, the place of HAVING thereon erected a dwelling house know and numbered as 416 Brandy Lane. UNDER AND SUBJECT, nevertheless, to restrictions, conditions and easements of prior record pertaining to said BEING the same premises which Larry L. McDermott and Donna L. McDermott, his wife, by Deed dated June 21, 1993 and recorded June 23, 1993 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book I-36, page 1148, granted and conveyed unto Jeffrey A. Sampson and Teresa M. Shughart, now known as Teresa M. Sampson, his wife. BEING THE SAME PREMISES VESTED IN Michael S. Nailor, single individual, by Deed from Jeffrey A. Sampson and Teresa M. Sampson, fka, Teresa M. Shughart, h/w, dated 12110/2004, recorded 12/13/2004, in Deed Book 266, page 3352. PREMISES BEING: 416 BRANDY LANE, MECHANICSBURG, PA 17055 PARCEL NO. 18-22-0521-001 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 08-2058 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due PHH MORTGAGE CORPORATION, Plaintiff (s) From MICHAEL S. NAILOR (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 $124,684.04 L.L.$ 0.50 Interest from 6/20/08 -12/10/08 (per diem - $20.50) - $3,567.00 and Costs Atty's Comm % Due Prothy $2.00 Arty Paid $154.50 Other Costs $2,326.00 Plaintiff Paid Date: 8/06/08 Pro notary (Seal) By: y Deputy REQUESTING PARTY: Name: DANIEL G. SCHMIEG, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, LLP ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 62205 Real Estate Sale # 37 On August 21, 2008 the Sheriff levied upon the defendant's interest in the real property situated in Borough of Mechanicsburg, Cumberland County, PA Known and numbered as 416 Brandy Lane, Mechanicsburg, more fully described on Exhibit "A" filed with this writ and by this reference incorporated herein. Date: August 21, 2008 B Real Est to Sergeant Gfl The Patriot-Dews Co. 812 Market St Harrisburg, PA 17101 Inquiries - 717-255-8213 CJMBERLAND COUNTY SHERIFFS OF CUMBERLAND COUNTY COURT HOUSE CARLISLE PA 17013 the 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: 10/29/08 11/05/08 Sworn to and,su6scribed before me this,45 day of November, 2008 A.D. Notary Public 11112108 ?;OM142NWEHL"Tr OF i E=NNSYLV, N%- Zhenie L Kisre , Notirv F'uhi t.;t Of Hamshu;q, Dauphin County MY GxnmiSSion Ex;,iW, Nov. 26,201 t 14ernhRr of er,r,: Real Estate Sale No. 37 Writ No. 2008-2058 Civil Term PHH Mortgage Corporation VS Michael S. Nailor Attorney Daniel Schmieg LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land situate in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, and described according to a survey made by Gerrit J. Betz, Registered Surveyor, dated May 12. 1973, as follows, to wit: BEGINNING at a hub on the southeasterly side of Brandy Lane at the corner of lands now or formerly of Robert McNally being House No. 414, said point being, measured along the said side of Brandy Lane, 632 fed to the.comer line of North Filbert Street; thence extending from said point of beginning and along the said side of Brandy Lane, North 42 degrees 45 minutes East the distance of 62.50 feet to a point at the comer of lands now or formerly of J & M Masonary Contractors thence along lands now or formerly of J M Masonary Contractors, south 47 degrees 15 minutes east, the distance of 275.72 feet to a hub at the comer of lands now - formerly of Joseph Kramer; thence alone !ands now or formerly of Joseph Kramer, south 42 degrees 00 minutes west, the distance of 62.53 feet to a hub at the comer of lands now or formerly of Robert McNally; thence along lands now or formerly of Robert McNally, north 47 degrees 15 minutes west, the distance of 276.54 feet to a point, the place of HAVING thereon erected a dwelling house know and numbered as 416 Brandy Lane. UNDER AND SUBJECT, nevertheless, to restrictions, conditions and easements of prior record pertaining to said BEING the same premises which Larry L. McDermott and Donna L. McDermott, his wife, by Deed dated June 21, 1993 and recorded June 23, 1993 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book I-36, page 1148, granted and conveyed unto Jeffrey A. Sampson and Teresa M. Shughart, now known as Teresa M. Sampson, his wife. BEING THE. SAME PREMISES VESTED IN Michael S. Nailor, single individual, by Deed from Jeffrey A. Sampson and Teresa M. Sampson, fka, Teresa M. Shughart, h/w, dated .,12110/2004, recorded 12/13/2004, in Deed Book 266, page 3352. PREMISES BEING: 416 BRANDY LANE, MECHANICSBURG, PA 17055 PARCEL N0. 18-22-0521-001 PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.1784 COMMONWEALTH OF PENNSYLVANIA ss. COUNTY OF CUMBERLAND : Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, viz: October 31, November 7 and November 14, 2008 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true. I-c- arie'Coyne, E itor t?mSWORN TO AND SUBSCRIBED before me this 4 day of November, 2008 Notary NOTARIAL SEAL DEBORAH A COLLINS Notary Public CARLISLE BORO, CUMBERLAND COUNTY My Commission Expires Apr 28.2010 RN" 861AW SMA 00. 39 Writ No. 2008-2058 Civil PHH Mortgage Corporation VS. Michael S. Nailor Atty.: Daniel Schmieg LEGAL DESCRIPTION ALL THAT CERTAIN piece or par- cel of land situate in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, and described according to a survey made by Gerrit J. Betz, Registered Surveyor, dated May 12, 1973, as follows, to wit: BEGINNING at a hub on the southeasterly side of Brandy Lane at the corner of lands now or formerly of Robert McNally being House No. 414, said point being measured along the said side of Brandy Lane, 632 feet to the corner line of North Filbert Street; thence extending from said point of beginning and along the said side of Brandy Lane, North 42 degrees 45 minutes East the distance of 62.50 feet to a point at the corner of lands now or formerly of J & M Masonary Contractors; thence along lands now or formerly of J M Masonary Contrac- tors, south 47 degrees 15 minutes east, the distance of 275.72 feet to a hub at the corner of lands now or formerly of Joseph Kramer; thence along lands now or formerly of Jo- seph Kramer, south 42 degrees 00 minutes west, the distance of 62.53 feet to a hub at the corner of lands now or formerly of Robert McNally; thence along lands now or formerly of Robert McNally, north 47 degrees 15 minutes west, the distance of 276.54 feet to a point, the place of HAVING thereon erected a dwell- ing house know and numbered as 416 Brandy Lane. UNDER AND SUBJECT, neverthe- less, to restrictions, conditions and easements of prior record pertaining to said BEING the same premises which: Larry L. McDermott and Donna L. McDermott, his wife, by Deed dated June 21, 1993 and recorded June 23, 1993 in the Office of the Recorder of. Deeds in and for Cumberland Coun- ty, Pennsylvania, in Deed Book I-36, page 1148, granted and conveyed unto Jeffrey A. Sampson and Teresa M. Shughart, now known as Teresa M. Sampson, his wife. BEING THE SAME PREMISES VESTED IN Michael S. Nailor, single individual, by Deed from Jeffrey A. Sampson and Teresa M. Sampson, fka, Teresa M. Shughart, h/w, dated 12/10/2004, recorded 12/13/2004, in Deed Book 266, page 3352. PREMISES BEING: 416 BRAN- DY LANE, MECHANICSBURG, PA 17055. PARCEL NO. 18-22-0521-001. PRAECIPE FOR WRIT OF EXECUTION - (MORTGAGE FORECLOSURE) Pa.R.C.P. 3180-3183 PHH MORTGAGE CORPORATION Plaintiff, V. MICHAEL S. NAILOR No. 08-2058 CIVIL TERM Defendant(s). TO THE PROTHONOTARY: Issue writ of execution in the above matter: Amount Due $131,082.87 Interest from 12/11/2008-12/09/2009 (per diem -$21.55) TOTAL Note: Please attach description of property. $7,844.20 $138,927.07 awrence T. he- I an, P., Id. No. 322T7 ? Francis S. Hallinan, Esq., Id. No. 62695 ? Daniel G. Schmieg, Esq., Id. No. 62205 ? Michele M. Bradford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ? Sheetal R. Shah-Jani, Esq., Id. No. 81760 ? me R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 ? Jay B. Jones, Esq., Id. No. 86657 ? Peter J. Mulcahy, Esq., Id. No. 61791 ? Andrew L. Spivack, Esq., Id. No. 84439 ? Jaime McGuinness, Esq., Id. No. 90134 ? Chrisovalante P. Fliakos, Esq., Id. No. 94620 ? Joshua I. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Andrew C. Bramblett, Esq., Id. No. 208375 Attorney for Plaintiff One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 (215) 563-7000 174192 O 'k 9 '' O OW O ?a O O C7 00 H U H O? O U O 1 III???'--Vl"111 a U t a- CD R \° l, c -i cr" ? A v kn 0 ti d a C7 RG o N Vl o `O O?p?vl? cM1'? G?1-4 'Tr M?? O??pMN ho?O3D,,zN O x U o 0Zv'Zo?occ, ? o o° c 6Z o U ((??^ zzb ° °? 6 Z Z rZZv6 ? DC ?.-c v z?ZZZo?OOZ.6.6W.6b w .d ? , -6 6 .6 _z u W W Wti ?' o c Nti ?W Wfi1Wa r, o ? ? w ? o ?wwW?W•? yw ? ??? o a ? w 70 0 0 i 0a 5";34., > ?da< ?U °U¢ 0 U ??????? ????????? Oa° -o A4 T~ d Y vvv v ? ga 00 O` 1 4 ? ? r r 4 . 0 0 CA ? w 4- WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 08-2058 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due PHH MORTGAGE ACORPORATION, Plaintiff (s) From MICHAEL S. NAILOR (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 $131, 082.87 L.L. Interest FROM 12/11/2008 - 12/09/2009 (PER DIEM - $21.55) -- $7,844.20 Atty's Comm % Atty Paid $1,247.76 Plaintiff Paid Date: AUGUST 26, 2009 (Seal) REQUESTING PARTY: Name LAUREN R. TABAS, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, L.L.P, ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 93337 Due Prothy $2.00 Other Costs Curt' R. Long, Protho of By: Deputy IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA IN RE: MICHAEL S. NAILOR Debtor Bk. No. 1:08-04603 MDF PHH MORTGAGE CORPORATION Chapter No. 13 Movant V. MICHAEL S. NAILOR Respondent 11 U.S.C.§362 ORDER MODIFYING SECTION 362 AUTOMATIC STAY Upon Consideration of the Motion of PHH MORTGAGE CORPORATION (Movant), and after Notice of Default and the filing of a Certification of Default, it is: ORDERED AND DECREED THAT: The Automatic stay of all proceedings, as provided by 11 U.S.C. 362 is modified with respect to premises, 416 BRANDY LANE, MECHANICSBURG, PA 17055, as more fully set forth in the legal description attached to said mortgage, as to allow the Movant to foreclose on its mortgage or take any legal or consensual action enforcement of its right to possession of, or title to, said premises (such actions may include but are not limited to the signing of a deed in lieu of foreclosure or entering into a loan modification agreement) and to allow the purchaser of said premises at Sheriff's Sale (or purchaser's assignee) to take any legal or consensual action for enforcement of its right to possession of, or title to, said premises; and it is further; ORDERED AND DECREED THAT: Rule 4001(a)(3) is not applicable and PHH MORTGAGE CORPORATION may immediately enforce and implement this Order granting Relief from the Automatic Stay. By the Cowt, Ban p jpdge (JDK) This document is electronically signed and filed on the same date. Dated: July 7, 2009 Case 1:08-bk-04603-MDF Doc 34 Filed 07/07/09 Entered 07/07/09 11:01:37 Desc Main Document Page 1 of 1 LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land situate in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, and described according to a survey made by Gerrit J. Betz, Registered Surveyor, dated May 12, 1973, as follows, to wit: BEGINNING at a hub on the southeasterly side of Brandy Lane at the corner of lands now or formerly of Robert McNally being House No. 414, said point being measured along the said side of Brandy Lane, 632 feet to the corner line of North Filbert Street; thence extending from said point of beginning and along the said side of Brandy Lane, North 42 degrees 45 minutes East the distance of 62.50 feet to a point at the corner of lands now or formerly of J & M Masonary Contractors; thence along lands now or formerly of J M Masonary Contractors, south 47 degrees 15 minutes east, the distance of 275.72 feet to a hub at the corner of lands now or formerly of Joseph Kramer; thence along lands now or formerly of Joseph Kramer, south 42 degrees 00 minutes west, the distance of 62.53 feet to a hub at the corner of lands now or formerly of Robert McNally; thence along lands now or formerly of Robert McNally, north 47 degrees 15 minutes west, the distance of 276.54 feet to a point, the place of BEGINNING. HAVING thereon erected a dwelling house known and numbered as 416 Brandy Lane. UNDER AND SUBJECT, nevertheless, to restrictions, conditions and easements of prior record pertaining to said premises. TITLE TO SAID PREMISES IS VESTED IN Michael S. Nailor, single individual, by Deed from Jeffrey A. Sampson and Teresa M. Sampson, fka, Teresa M. Shughart, h/w, dated 12/10/2004, recorded 12/13/2004, in Deed Book 266, page 3352. PREMISES BEING: 416 BRANDY LANE, MECHANICSBURG, PA 17055 PARCEL NO. 18-22-0521-001 PHELAN HALLINAN & SCHMIEG, L.L.P. ONE PENN CENTER AT SUBURBAN STATION ATTORNEY FOR PLAINTIFF 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 PHH MORTGAGE CORPORATION CUMBERLAND COUNTY Plaintiff, COURT OF COMMON PLEAS V. MICHAEL S. NAILOR Defendant(s). CIVIL DIVISION NO. 08-2058 CIVIL TERM CERTIFICATION The undersigned attorney, hereby verifies that he/she 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 This certification is made subject to the penal ies o 1 Pa. C.S.A. §4904 rela-liaAAQ unswom falsification to authorities. 13 Lawrence T. Phelan, Esq., Id.176 -32T27 ? Francis S. Hallinan, Esq., Id. No. 62695 ? Daniel G. Schmieg, Esq., Id. No. 62205 ? Michele M. Bradford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ? Shee . Shah-Jani, Esq., Id. No. 81760 ? J me R. Davey, Esq., Id. No. 87077 P'Lauren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 ? Jay B. Jones, Esq., Id. No. 86657 ? Peter J. Mulcahy, Esq., Id. No. 61791 ? Andrew L. Spivack, Esq., Id. No. 84439 ? Jaime McGuinness, Esq., Id. No. 90134 ? Chrisovalante P. Fliakos, Esq., Id. No. 94620 ? Joshua 1. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Andrew C. Bramblett, Esq., Id. No. 208375 Attorney for Plaintiff One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 (215) 563-7000 RLE -- -* iCF Or THE P-'PT:-4,'MTARY 2009 AUG 26 0"110: 13 PHH MORTGAGE CORPORATION Plaintiff, V. MICHAEL S. NAILOR Defendant(s). CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 08-2058 CIVIL TERM AFFIDAVIT PURSUANT TO RULE 3129.1 PHH MORTGAGE CORPORATION, Plaintiff in the above action, by the undersigned attorney, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at 416 BRANDY LANE, MECHANICSBURG, PA 17055. 1. Name and address of Owner(s) or reputed Owner(s): Name Address (if address cannot be reasonably ascertained, please indicate) MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBURG, PA 17055 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 Address (if address cannot be reasonably ascertained, please indicate) 4. Name and address of last recorded holder of every mortgage of record: Name None Address (if address cannot be reasonably ascertained, please indicate) 5. Name and address of every other person who has any record lien on the property: Name 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 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 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 416 BRANDY LANE MECHANICSBURG, PA 17055 13 North Hanover Street Carlisle, PA 17013 PO Box 2675 Harrisburg, PA 17105 6`h Floor, Strawberry Sq., Dept. 28061 Harrisburg, PA 17128 13`h Floor, Suite 1300 1001 Liberty Avenue Pittsburgh, PA 15222 Department of Public Welfare P.O. Box 8486 TPL Casualty Unit Willow Oak Building Estate Recovery Program Harrisburg, PA 17105 I verify that the statements made in this affidavit ar e and correct to the best of my personal knowledge or information and belief. I understand at al statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswo f s' ication to authorities._.._ August 24, 2009 DATE ? Lawrence T. Phelan, Esq., Id. n1e--52227 ? Francis S. Hallinan, Esq., Id. No. 62695 ? Daniel G. Schmieg, Esq., Id. No. 62205 ? Michele M. Bradford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 EShee J R. Shah-Jani, Esq., Id. No. 81760 ? J me R. Davey, Esq., Id. No. 87077 auren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 ? Jay B. Jones, Esq., Id. No. 86657 ? Peter J. Mulcahy, Esq., Id. No. 61791 ? Andrew L. Spivack, Esq., Id. No. 84439 ? Jaime McGuinness, Esq., Id. No. 90134 ? Chrisovalante P. Fliakos, Esq., Id. No. 94620 ? Joshua I. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Andrew C. Bramblett, Esq., Id. No. 208375 Attorney for Plaintiff One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 (215) 563-7000 FLE 'F OF Sfi ?fCFARY 2009 AUG Z, Ali lull 13 CUM- t PHH MORTGAGE CORPORATION CUMBERLAND COUNTY Plaintiff, V. No. 08-2058 CIVIL TERM MICHAEL S. NAILOR Defendant(s). TO: MICHAEL S. NAILOR 416 BRANDY LANE August 24, 2009 MECHANICSBURG, PA 17055 "THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE ANA TTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF ALIEN AGAINST PROPERTY. * * Your house (real estate) at 416 BRANDY LANE, MECHANICSBURG, PA 17055, is scheduled to be sold at the Sheriffs Sale on DECEMBER 9, 2009 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $131,082.87 obtained by PHH MORTGAGE CORPORATION (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 SHORT DESCRIPTION By virtue of a Writ of Execution No. 08-2058 CIVIL TERM PHH MORTGAGE CORPORATION VS. MICHAEL S. NAILOR owner(s) of property situate in the BOROUGH OF MECHANICSBURG, Cumberland County, (Municipality) Pennsylvania, being 416 BRANDY LANE, MECHANICSBURG, PA 17055 (Acreage or street address) Parcel No. 18-22-0521-001 Improvements thereon: RESIDENTIAL DWELLING JUDGMENT AMOUNT: 131,082.87 PHELAN HALLINAN & SCHMIEG, L.L.P. Attorney for Plaintiff One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 (215) 563-7000 LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land situate in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, and described according to a survey made by Gerrit J. Betz, Registered Surveyor, dated May 12, 1973, as follows, to wit: BEGINNING at a hub on the southeasterly side of Brandy Lane at the corner of lands now or formerly of Robert McNally being House No. 414, said point being measured along the said side of Brandy Lane, 632 feet to the corner line of North Filbert Street; thence extending from said point of beginning and along the said side of Brandy Lane, North 42 degrees 45 minutes East the distance of 62.50 feet to a point at the corner of lands now or formerly of J & M Masonary Contractors; thence along lands now or formerly of J M Masonry Contractors, south 47 degrees 15 minutes east, the distance of 275.72 feet to a hub at the corner of lands now or formerly of Joseph Kramer; thence along lands now or formerly of Joseph Kramer, south 42 degrees 00 minutes west, the distance of 62.53 feet to a hub at the corner of lands now or formerly of Robert McNally; thence along lands now or formerly of Robert McNally, north 47 degrees 15 minutes west, the distance of 276.54 feet to a point, the place of BEGINNING. HAVING thereon erected a dwelling house known and numbered as 416 Brandy Lane. UNDER AND SUBJECT, nevertheless, to restrictions, conditions and easements of prior record pertaining to said premises. TITLE TO SAID PREMISES IS VESTED IN Michael S. Nailor, single individual, by Deed from Jeffrey A. Sampson and Teresa M. Sampson, fka, Teresa M. Shughart, h/w, dated 12/10/2004, recorded 12/13/2004, in Deed Book 266, page 3352. PREMISES BEING: 416 BRANDY LANE, MECHANICSBURG, PA 17055 PARCEL NO. 18-22-0521-001 OF THE pr c) C' iCNOTAAY 2009 AUG 26 AM 10: 1 `MUMMMMMIP AFFIDAVIT OF SERVICE PLAINTIFF PHH MORTGAGE CORPORATION CUMBERLAND COUNTY No. 08-2058 CIVIL TERM DEFENDANT(S) MICHAEL S. NAILOR SERVE MICHAEL S. NAILOR AT: 416 BRANDY LANE MECHANICSBURG, PA 17055 PHS #174192 Type of Action - Notice of Sheriffs Sale Sale Date: DECEMBER 9, 2009 SERVED Served and made known to `rl l C 13 - Nki t, d P- , Defendant, on the I +4 day of S 2001 at G -o'clock, _.m., at 4(6 B??Vbq L4:Ng:, IUOC?Ics Bi{aQ& , Commonwealth of Pennsylvania, in the manner described below: V Defendant personally served. Adult family member with whom Defendant(s) reside(s). Name and Relationship is _ Adult in charge of Defendant(s)'s residence who refused to give name or relationship. Manager/Clerk of place of lodging in which Defendant(s) reside(s). Agent or person in charge of Defendant(s)'s office or usual place of business. an officer of said Defendant(s)'s company. Other: Description: Age 3D s Height 5 1h %' Weight (F0 Race Sex /H Other 1, RD N4-1,0 ! yl4 1,L- , a competent adult, being duly sworn according to law, depose and state that I personally handed a true and correct copy of the Notice of Sheriff s Sale in the manner as set forth herein, issued in the captioned case on the date and at the address indicated above. Sworn to and subsc 'bed KIMBERLY CURTY before me this 10 day NOTARY PUBLIC of ? 200 . STATE OF NEW JERSEY No By: COMMISSION EXPIRES MARCH 7, 2013 PLEASE A EM SERVICE AT LEAST 3 TIMES. INDICATE DATES & TIMES OF SERVICE ATTEMPTED. NOT SERVED On the day of 200_, at o'clock _.m., Defendant NOT FOUND because: Moved Unknown No Answer 1st Attempt: Time: 3rd Attempt: Timer Sworn to and subscribed before me this day of 1200- Notary: Vacant 2"d Attempt: Time: Attornev for Plaintiff PHELAN HALLINAN & SCHMIEG, L.L.P. One Penn Center at Suburban Station, Suite 1400 By: 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 Ov, R LED-0t 'ICE OF THE PROTHONOTARY 2004 OCT -7 PM 2: 01 CtJ+A .?;? ti 4 ?-'ADUN Y €'ENNSYl..VANLA Phelan Hallinan & Schmieg, LLP By: Lawrence T. Phelan, Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua 1. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 ATTORNEY FOR PLAINTIFF One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 PHH MORTGAGE CORPORATION Plaintiff V. MICHAEL S. NAILOR Defendant Court of Common Pleas Civil Division CUMBERLAND County No. 08-2058 CIVIL TERM PLAINTIFF'S MOTION TO REASSESS DAMAGES Plaintiff, by its Attorneys, Phelan Hallinan & Schmieg, LLP, moves the Court to direct the Prothonotary to amend the judgment in this matter, and in support thereof avers the following: Plaintiff commenced this foreclosure action by filing a Complaint on April 1, 2008, a true and correct copy of which is attached hereto, made part hereof, and marked as Exhibit "A". 2. Judgment was entered on June 23, 2008 in the amount of $124,684.04. 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. A Sheriff s Sale of the mortgaged property at 416 BRANDY LANE, MECHANICSBURG, PA 17055 (hereinafter the "Property") was postponed or stayed for the following reason: a.) The Defendant filed a Chapter 13 Bankruptcy at Docket Number 1:08-04603 on December 10, 2008. The Plaintiff was granted relief from the automatic stay by order of court dated July 7, 2009. A true and correct copy of the Bankruptcy Court Order is attached hereto, made part hereof, and marked as Exhibit "C". 5. The Property is listed for Sheriffs Sale on December 9, 2009. 6. Additional sums have been incurred or expended on Defendant's behalf since the Complaint was filed and Defendant has been given credit for any payments that have been made since the judgment. The amount of damages should now read as follows: Principal Balance $117,837.45 Interest Through December 9, 2009 $14,275.26 Per Diem $18.56 Late Charges $228.80 Legal fees $2,800.00 Cost of Suit and Title $1,913.00 Sheriffs Sale Costs $1,069.26 Property Inspections/ Property Preservation $278.25 Appraisal/Brokers Price Opinion $250.00 Mortgage Insurance Premium / $0.00 Private Mortgage Insurance Non Sufficient Funds Charge $0.00 Suspense/Misc. Credits ($0.00) Escrow Deficit $3,821.63 TOTAL $142,473.65 7. The judgment formerly entered is insufficient to satisfy the amounts due on the Mortgage. 8. Under the terms of the Mortgage and Pennsylvania law, Plaintiff is entitled to inclusion of the figures set forth above in the amount of judgment against the Defendant. 9. Plaintiff's foreclosure judgment is in rem only and does not include personal liability, as addressed in Plaintiff's attached brief. 10. 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 October 16, 2009 and requested the Defendant's Concurrence. Plaintiff did not receive any response from the Defendant. A true and correct copy of Plaintiff's letter pursuant to Local Rule 208.3(9) and certification of mailing are attached hereto, made part hereof, and marked as Exhibit "D". 11. In compliance with Cumberland County Local Rule 209.3(a)(2), Plaintiff avers that Judge Wesley Oler, Jr. entered an order for Reassessment of Damages dated November 11, 2008. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. DATE: 21 0? By: 16 Phelan LLP a ence T. Pheldy, Esq., Id. No. 32227 TmF cisS. Hallin Esq., Id. No. 62695 'el G. Sc eg, Esq., Id. No. 62205 ic radford, , Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ? Michele M. Bradford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ? Sheetal R. Shah-Jani, Esq., Id. No. 81760 ? Jenine R. Davey, Esq., Id. No. 87077 ? Lauren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 ? Jay B. Jones, Esq., Id. No. 86657 ? Peter J. Mulcahy, Esq., Id. No. 61791 ? Andrew L. Spivack, Esq., Id. No. 84439 ? Jaime McGuinness, Esq., Id. No. 90134 ? Chrisovalante P. Fliakos, Esq., Id. No. 94620 [/Z Joshua I. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Andrew C. Bramblett, Esq., Id. No. 208375 ATTORNEY FOR PLAINTIFF Phelan Hallinan & Schmieg, LLP By: Lawrence T. Phelan, Esq., Id. No. 32227 ATTORNEY FOR PLAINTIFF Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 PHH MORTGAGE CORPORATION Court of Common Pleas Plaintiff Civil Division V. CUMBERLAND County MICHAEL S. NAILOR Defendant No. 08-2058 CIVIL TERM MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REASSESS DAMAGES I. BACKGROUND OF CASE MICHAEL S. NAILOR 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 416 BRANDY LANE, MECHANICSBURG, PA 17055. The Mortgage indicates that in the event of a default in the mortgage, Plaintiff may advance any necessary sums, including taxes, insurance, and other items, in order to protect the security of the Mortgage. In the instant case, Defendant defaulted under the Mortgage by failing to tender numerous, promised monthly mortgage payments. Accordingly, after it was clear that the default would not be cured, Plaintiff commenced the instant mortgage foreclosure action. Judgment was subsequently entered by the Court, and the Property is currently scheduled for Sheriffs Sale. Because of the excessive period of time between the initiation of the mortgage foreclosure action, the entry of judgment and the Sheriffs Sale date, damages as previously assessed are outdated and need to be adjusted to include current interest, real estate taxes, insurance premiums, costs of collection, and other expenses which Plaintiff has been obligated to pay under the Mortgage in order to protect its interests. It is also appropriate to give Defendant credit for monthly payments tendered through bankruptcy, if any. II. LEGAL ARGUMENT TO AMEND PLAINTIFF'S IN REM JUDGMENT It is settled law in Pennsylvania that the Court may exercise its equitable powers to control the enforcement of a judgment and to grant any relief until that judgment is satisfied. 20 P.L.E., Judgments § 191. Stephenson v. Butts, 187 Pa-Super. 55, 59, 142 A.2d 319, 321 (1958). Chase Home Mortgage Corporation of the Southwest v. Good, 537 A.2d 22, 24 (Pa.Super. 1988). The Pennsylvania Superior Court has repeatedly cited the right of a foreclosing creditor to amend its judgment prior to the Sheriffs sale. Nationsbanc Mortgage Corp. v. Grillo, 827 A.2d 489 (Pa.Super. 2003). Morgan Guaranty Trust Co. of N.Y. v. Mowl, 705 A.2d 923 (Pa. Super. 1998). Union National Bank of Pittsburgh v. Ciongoli, 407 Pa.Super. 171, 595 A.2d 179 (1991). The Supreme Court of Pennsylvania recognized in Landau v. Western Pa. Nat. Bank, 445 Pa. 117, 282 A.2d 335 (1971), that the debt owed on a Mortgage is subject to change and, in fact, can be expected to change from day to day because the bank must advance sums in order to protect its collateral. Because a Mortgage lien is not extinguished until the debt is paid, Plaintiff must protect its collateral up until the date of sale. Beckman v. Altoona Trust Co., 332 Pa. 545, 2 A.2d 826 (1939). Because a judgment in mortgage foreclosure is strictly in rem, it is critical that the judgment reflect those amounts expended by the Plaintiff in protecting the property. Meco Reality Company v. Burns, 414 Pa. 495, 200 A.2d 335 (1971). Plaintiff submits that if it goes to sale without the requested amended judgment, and if there is competitive bidding for the Property, Plaintiff will suffer a significant loss in that it would not be able to recoup monies it advanced to protect its interests. Conversely, amending the in rem judgment will not be detrimental to Defendant as it imputes no personal liability. In B.C.Y. v. Bukovich, the Pennsylvania Superior Court reiterated its long standing rule that a Court has the inherent power to correct a judgment to conform to the facts of a case. 257 Pa. Super. 157, 390 A.2d 276 (1978). In the within case, the amount of the original judgment does not adequately reflect the additional sums due on the Mortgage due to Defendant's failure to tender payments during the foreclosure proceeding and the advances made by the mortgage company. The Mortgage plainly requires the mortgagor to tender to the mortgagee monthly payments of principal and interest until the Promissory Note accompanying the Mortgage is paid in full. The mortgagor is also required to remit to the mortgagee sufficient sums to pay monthly mortgage insurance premiums, fire insurance premiums, taxes and other assessments relating to the Property. The mortgagor has breached the terms of the Mortgage, and Plaintiff has been forced to incur significant unjust financial losses on this loan. III. THE FORECLOSURE JUDGMENT IS IN REM ONLY The within case is a mortgage foreclosure action, the sole purpose of which is to take the mortgaged property to Sheriffs Sale. Pennsylvania law makes clear that an action in mortgage foreclosure is strictly in rem and does not include any personal liability. Newtown Village Partnership v. Kimmel, 424 Pa. Super 53, 55, 621 A.2d 1036, 1037 (1993). Signal Consumer Discount Company v. Babuscio, 257 Pa. Super 101, 109, 390 A.2d 266, 270 (1978). Pennsylvania Rule of Civil Procedure 1141(a). However, Pennsylvania law requires that the foreclosure action demand judgment for the amount due. Pa.R.C.P. 1147(6). The purpose of the dollar amount in the in rem judgment is for bidding at the Sheriffs Sale. In the event that a third party real estate speculator were to bid on the mortgaged property at the Sheriffs Sale and become the successful purchaser, Plaintiff would receive the amount of the in rem judgment from the Sheriff. IV. INTEREST The Mortgage clearly requires that the Defendant shall promptly pay when due the principal and interest due on the outstanding debt. In addition, the Note specifies the rate of interest to be charged until the debt is paid in full or otherwise satisfied. Specifically, interest from 30 days prior to the date of default through the date of the impending Sheriff s sale has been requested. V. TAXES AND INSURANCE If Plaintiff had not advanced monies for taxes and insurance throughout the foreclosure proceeding, Plaintiff would have risked loss of its collateral. If the Property were sold at a tax sale, Plaintiffs interest very well may be divested, and Plaintiff would sustain a complete loss on the outstanding balance due on the loan. If the Property were damaged in a fire, Plaintiff would not be able to obtain insurance proceeds to restore the Property if it did not pay the insurance premiums. Most importantly, the Mortgage specifically provides that the mortgagee may advance the monies for taxes and insurance and charge these payments against the escrow account. Plaintiff is simply seeking to have the Court enforce the terms of the Mortgage. Vl. 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. Feiner, the Superior Court held that an attorney's fee of ten percent of the original mortgage amount is not unconscionable. 410 A.2d 344 (Pa. Super. 1979). Recently, the Superior Court cited Fetner in confirming that an attorney's fee of ten percent included in the judgment in mortgage foreclosure action was reasonable. Citicorp v. Morrisville Hampton Realty, 662 A.2d 1120 (Pa. Super. 1995). Importantly, Plaintiff recognizes this Honorable Court's equitable authority to set attorney's fees and costs as it deems reasonable. VII. CONCLUSION Therefore, Plaintiff respectfully submits that if the enforcement of its rights is delayed by legal proceedings, and such delays require the mortgagee to expend additional sums provided for by the Mortgage, then the expenses necessarily become part of the mortgagee's lien and should be included in the judgment. Plaintiff respectfully requests that this Honorable Court grant its Motion to Reassess Damages. Plaintiff submits that it has acted in good faith in maintaining the Property in accordance with the Mortgage, and has relied on terms of the Mortgage with the understanding that it would recover the monies it expended to protect its collateral. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. Phelan Hallinan & Schmiev- LLP DATE: Lo I (1 By: U e T. Phel , Esq., Id. No. 32227 ? F anci S. Halli , Esq., Id. No. 62695 anie G. S -eg, Esq., Id. No. 62205 Michele . Bradford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ? Sheetal R. Shah-Jani, Esq., Id. No. 81760 ? Jenine R. Davey, Esq., Id. No. 87077 ? Lauren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 ? Jay B. Jones, Esq., Id. No. 86657 ? Peter J. Mulcahy, Esq., Id. No. 61791 ? Andrew L. Spivack, Esq., Id. No. 84439 ? Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Andrew C. Bramblett, Esq., Id. No. 208375 ATTORNEY FOR PLAINTIFF Exhibit "A" PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 MICHELE M. BRADFORD, ESQ., Id. No. 69849 JUDTTH T. ROMANO, ESQ., Id. No. 58745 SHEETAL SHAH-JANI, ESQ., Id. No. 81760 JENINE R. DAVEY, ESQ., Id. No. 87077 MICHAEL E. CARLETON, ESQ., Id. No. 203009 VIVEK SRIVASTAVA, ESQ., Id. No. 202331 JAY B. JONES, ESQ., Id. No. 86657 PETER MULCAHY, ESQ., Id. No. 61791 ANDREW SPIVACK, ESQ., Id. No. 84439 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 12151 563-7000 174192 PHH MORTGAGE CORPORATION 3000 LEADENHALL ROAD OR 4001 LEADENHALL ROAD MOUNT LAUREL, NJ 08054 Plaintiff V. grORNEY FILE COPY PLEASE RETURN MICHAEL S. NAILOR 416 BRANDY LANE C") rv ni ??'? BSc ?y -0 rn CQ ATTORNEY FILE COPY . PLEASE RETURN ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. 08 - ojo S$ 0,1v i I -Tern CUMBERLAND COUNTY MECHANCSBRG, PA 17055 We hereby certify the within to Ike a true and correct copy of the Defendant ortginW filed of record CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE ATTORNEY FILE COPY File #: 174192 NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the ;k;l[owing pages, you must take action within twenty (20) days after this Complaint and Notice 't` `= served by entering a written appearance personally or by attorney and filing in writing with ('{start your defenses or objections to the claims set forth against you. You are warned that if + 1 ? to do so, the case may proceed without you, and a judgment maybe entered against ?rt Court without further notice for any money claimed in the Complaint you or relief requested by the plaintiff. You may lose money or property or other rights iW r!'lint to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO ' 1 h : VE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW a 1,?-')FFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LA IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAYBE ABLE PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFE F( 1_ SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE R OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9108 P =!9z 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 COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN f'; i,- 'r I ; 74192 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 #: 174192 1 • Plaintiff is PHH MORTGAGE CORPORATION 3000 LEADENHALL ROAD OR 4001 LEADENHALL ROAD MOUNT LAUREL, NJ 08054 2. The name(s) and last known address(es) of the Defendant(s) are: MICHAEL S. NAILOR 416 BRANDY LANE MECHANCSBRG, PA 17055 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 12/10/2004 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to MEMBERS 1 ST FEDERAL CREDIT UNION which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No. 1890, Page 4983. By Assignment of Mortgage recorded 02/17/2005 the mortgage was Assigned To MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. which Assignment is recorded in Assignment Of Mortgage Book No. 715, Page 1373. The 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 11/01/2007 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 File #: 174192 by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. 6. The following amounts are due on the mortgage: Principal Balance Interest $117,987.26 10101/2007 through 03/28/2008 $3,346.20 (Per Diem $18.59) Attorney's Fees Cumulative Late Charges 250.00 $ 12/10/2004 to 03/28/2008 $ 257 $.40 Cost of Suit and Title Search Subtotal 550.00 $123,390.86 Escrow Credit Defecit ($249.79) Subtotal $0.00 TOTAL 249.79 $123,141.07 7. If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. 8. Plaintiff is not seeking a judgment of personal liability (or an in ersonam 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 File #: 174192 discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. 9. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 10.. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $123,141.07, together with interest from 03/28/2008 at the rate of $18.59 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. PHE N HALLINAN & SCHMIEG, LLP By: LA NCE T. PHELAN, ESQUIRE -1' FRANCIS S. HALLINAN, ESQUIRE ?I DANIEL G. SCHMIEG, ESQUIRE MICHELE M. BRADFORD, ESQUIRE JUDITH T. ROMANO, ESQUIRE SHEETAL R. SHAH-JANI, ESQUIRE JENINE R. DAVEY, ESQUIRE MICHAEL E. CARLETON, ESQUIRE VIVEK SRIVASTAVA, ESQUIRE JAY B. JONES, ESQUIRE PETER MULCAHY, ESQUIRE ANDREW SPIVACK, ESQUIRE Attorneys for Plaintiff File #: 174192 LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land situate in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, and described according to a survey made by Gerrit J. Betz, Registered Surveyor, dated May 12, 1973, as follows, to wit: BEGINNING at a hub on the southeasterly side of Brandy Lane at the corner of lands now or formerly of Robert McNally being House No. 414, said point being measured along the said side of Brandy Lane, 632 feet to the comer line of North Filbert Street; thence extending from said point of beginning and along the said side of Brandy Lane, North 42 degrees 45 minutes East the distance of 62.50 feet to a point at the comer of lands now or formerly of J & M Masonary Contractors; thence along lands now or formerly of J M Masonary Contractors, south 47 degrees 15 minutes east, the distance of 275.72 feet to a hub at the corner of lands now or formerly of Joseph Kramer, thence along lands now or formerly of Joseph Kramer, south 42 degrees 00 minutes west, the distance of 62.53 feet to a hub at the comer of lands now or formerly of Robert McNally; thence along lands now or formerly of Robert McNally, north 47 degrees 15 minutes west, the distance of 276.54 feet to a point, the place of HAVING thereon erected a dwelling house know and numbered as 416 Brandy Lane. UNDER AND SUBJECT, nevertheless, to restrictions, conditions and easements of prior record pertaining to said File #: 174192 P NG the same premises which Larry L. McDermott and Donna L. McDermott, his wife b DeM elated June 21, 1993 and recorded June 23, 1993 in the Office of the Recorder o by of Deeds in amd fcor Cumberland County, Pennsylvania, in Deed Book I-36, page 1148, granted and conveyed -'effreY A. Sampson and Teresa M. Shu ghart, now known as Teresa M. Sampson, his wife. PA t CEI: 18-22-0521-001 H?" n' 174192 VERIFICATION fYloxce .%- Rw, 'Ut-, hereby states that he/she is ,?? of PHH MORTGAGE CORPORATION, servicing agent for Plaintiff in this matter, that he/she is authorized to take this Verification, and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are true and correct to the best of his/her knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unworn falsification to authorities. L I &- ? -1... Name: arc., j" DATE: 944cZ Title: 0 w ka?L' %'?- Company: PHH MORTGAGE CORPORATION File #: 174192 Exhibit "B" PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 Attorney for Plaintiff ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 PHH MORTGAGE CORPORATION 3000 LEADENHALL ROAD OR 4001 LEADENHALL ROAD MOUNT LAUREL, NJ 08054 V. Plaintiff, MICHAEL S. NAILOR 416 BRADY LANE MECHANICSBUG, PA 17055 CUMBERLAND COUNTY tiv ???- g COURT OF COMMON PLEAS , CIVIL DIVISION NO. 2008-02058 n ? Defendant(s). '-' ` r7 PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO -r =urn ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter an in rem judgment in favor of the Plaintiff and against MICHAEL STAIVOR, Defendant(s) for failure to file an Answer to Plaintiffs Com within 20 days from service thereof and for Foreclosure and Sale of the mortgaged pre ' sess Plaintiffs damages as follows: PLtip As set forth in Complaint $123,141.07 Interest from 03/29/2008 to 06/19/2008 $1,542.97 TOTAL $124,684.04 I hereby certify that (1) the addresses of the Plaintiff and Defendant(s) are as shown above, and (2) that notice has been given in accordance with Rule 237.1, copy attached. .11 P'M DAN G. S IE&GV , SIRE Attorney for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: AOP O 174192 Exhibit "C" IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA IN RE: MICHAEL S. NAILOR Debtor Bk. No. 1:08-04603 MDF PHH MORTGAGE CORPORATION Chapter No. 13 Movant V. MICHAEL S. NAILOR Respondent 11 U.S.C. §362 ORDER MODIFYING SECTION 362 AUTOMATIC STAY Upon Consideration of the Motion of PHH MORTGAGE CORPORATION (Movant), and after Notice of Default and the filing of a Certification of Default, it is: ORDERED AND DECREED THAT: The Automatic stay of all proceedings, as provided by 11 U.S.C. 362 is modified with respect to premises, 416 BRANDY LANE, MECHANICSBURG, PA 17055, as more fully set forth in the legal description attached to said mortgage, as to allow the Movant to foreclose on its mortgage or take any legal or consensual action enforcement of its right to possession of, or title to, said premises (such actions may include but are not limited to the signing of a deed in lieu of foreclosure or entering into a loan modification agreement) and to allow the purchaser of said premises at Sheriff's Sale (or purchaser's assignee) to take any legal or consensual action for enforcement of its right to possession of, or title to, said premises; and it is further; ORDERED AND DECREED THAT: Rule 4001(a)(3) is not applicable and PHH MORTGAGE CORPORATION may immediately enforce and implement this Order granting Relief from the Automatic Stay. By the Court, 71 141?? B P judge (]DK) This document is electronically signed and f fled on the same date. Dated: July 7, 2009 Case 1:08-bk-04603-MDF Doc 34 Filed 07/07/09 Entered 07/07/09 11:01:37 Desc Main Document Page 1 of 1 Exhibit "D" °o M a. ? a W o x? U as x u ?a x? a0 y b ? zoo o d wx o ? 2iy ". ??C .p y Q .?1 t ? ? WOW o3??dw o?a+z • °' y ,; Pro £o tis 3o 99ZLLZV000 i 6 100 A 6002 9 V4l ZO 9Z' vo $ .G 'ILM -moms", a ?NEd _ 09 h N U Gryq N ? F O .? V O C b O T 0 .4 i5 E 7 N?•C 1?1 w C p" G w A O vi V ° ? ?•°'OOg b ? x U W G > ° 0 W z w 0 ? E c a a z ? A ? N a yOj ? a° w a+ ? z ?o ? O a Q a0 °? c U e e z" z °a z rl U rl 'b . r x E ? z r- 00 U PHELAN HALLINAN & SCHMIEG, LLP 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103 (215) 563-7000 FAX#: (215) 563-3459 Phelan Hallinan & Schmieg, LLP Representing Lenders in Pennsylvania and New Jersey October 16, 2009 MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBURG, PA 17055 RE: PHH MORTGAGE CORPORATION v. MICHAEL S. NAILOR Premises Address: 416 BRANDY LANE MECHANICSBURG, PA 17055 CUMBERLAND County CCP, No. 08-2058 CIVIL TERM Dear Defendant, Enclosed please find a true and correct copy of my proposed Motion to Reassess Damages and Order. In accordance with Cumberland County Local Rule 208.3(9), I am seeking your concurrence with the requested relief that is, increasing the amount of the judgment. Please respond to me within 5 days, by October 21, 2009. Should you have further questions or concerns, please do not hesitate to contact me. Otherwise, please be guided accordingly. truly yours, Francis S. Hallinan, quire Daniel G. Schmieg, Esquire Michele M. Bradford, Esquire Judith T. Romano, Esquire Sheetal R. Shah-Jani, Esquire Jenine R. Davey, Esquire Lauren R. Tabas, Esquire Vivek Srivastava, Esquire Jay B. Jones, Esquire Peter J. Mulcahy, Esquire Andrew L. Spivack, Esquire Jaime McGuinness, Esquire Chrisovalante P. Fliakos, Esquire Joshua I. Goldman, Esquire Courtenay R. Dunn, Esquire Andrew C. Bramblett, Esquire Enclosure VERIFICATION I hereby state that I am the attorney for Plaintiff in this action, that I am authorized to make this verification, and that the statements made in the foregoing Motion to Reassess Damages are true and correct to the best of my knowledge, information and belief. The undersigned understands that this statement herein is made subject to the sworn penalties of 18 Pa.C.S. §4904 relating to the unsworn falsification of authorities. DATE: 4olqo, By: Phelan & Schmieg, LLP Id. No. 32227 ? F ci S. Hallinan sq., Id. No. 62695 ? aniel . Sc g, Esq., Id. No. 62205 ? Michele radford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ? Sheetal R. Shah-Jani, Esq., Id. No. 81760 ? Jenine R. Davey, Esq., Id. No. 87077 ? Lauren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 ? Jay B. Jones, Esq., Id. No. 86657 ? Peter J. Mulcahy, Esq., Id. No. 61791 ? Andrew L. Spivack, Esq., Id. No. 84439 ? Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Andrew C. Bramblett, Esq., Id. No. 208375 ATTORNEY FOR PLAINTIFF Phelan Hallinan & Schmieg, LLP By: Lawrence T. Phelan, Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 PHH MORTGAGE CORPORATION Plaintiff V. MICHAEL S. NAILOR Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No. 08-2058 CIVIL TERM CERTIFICATION OF SERVICE I hereby certify that true and correct copies of Plaintiffs Motion to Reassess Damages, and Brief in Support thereof, were sent to the following individuals on the date indicated below. MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBURG, PA 17055 Phelan Hallinan & Schmieg, LLP DATE: 0/-z p By: 7aniel e T. Phelan, sq., Id. No. 32227 S. Hallin sq., Id. No. 62695 e g, , Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ? Sheetal R. Shah-Jani, Esq., Id. No. 81760 ? Jenine R. Davey, Esq., Id. No. 87077 ? Lauren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 ? Jay B. Jones, Esq., Id. No. 86657 ? Peter J. Mulcahy, Esq., Id. No. 61791 ? Andrew L. Spivack, Esq., Id. No. 84439 ? Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua 1. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Andrew C. Bramblett, Esq., Id. No. 208375 ATTORNEY FOR PLAINTIFF ?" 1:,(` h ^? ? T:. r' ?, ? rV .? ; ?;.!7 L?' r.J v rig } ! I .j ! ? ;, _ ?:... IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA PHH MORTGAGE CORPORATION Court of Common Pleas Plaintiff Civil Division V. CUMBERLAND County MICHAEL S. NAILOR Defendant No. 08-2058 CIVIL TERM RULE AND NOW, this _2?IL-day of L 2009, a Rule is entered upon the Defendant to show cause why an Order should not be entered granting Plaintiff's Motion to Reassess Damages. Lv i t? 2-o z `? S 41? c ??Cn i s of d eJ Rule Returnable Main BY THE COURT J. FILED-OFFICE OF THE PROTHONOTARY 2089 OCT 27 PPS 3: 12 CUMKI? ;'OUP' PENNMVAA qa 2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PHH MORTGAGE CORPORATION Plaintiff, . CUMBERLAND COUNTY COURT OF COMMON PLEAS V. MICHAEL S. NAILOR Defendant(s) CIVIL DIVISION . No. 08-2058 CIVIL TERM AFFIDAVIT OF SERVICE PURSUANT TO RULE 3129.1 COMMONWEALTH OF PENNSYLVANIA ) CUMBERLAND COUNTY 1 SS: As required by Pa. R.C.P. 3129.1(a) Notice of Sale has been given to Lienholders and any known interested party in the manner required by Pa. R.C.P. 3129.2(c) on each of the persons or parties named, at that address, set forth on the Affidavit and as amended if applicable. A copy of the Certificate of Mailing (Form 3817) and/or Certified Mail Return Receipt stamped by the U.S. Postal Service is attached herets, Exhibit "A". Date: < < 10? U Lawrence T. Phelan., Id. No. 32227 ? Francis S. Hallinan, Esq., Id. No. 62695 ? Daniel G. Schmieg, Esq., Id. No. 62205 ? Michele M. Bradford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ?<heetal R. Shah-Jani, Esq., Id. No. 81760 ? Jenine R. Davey, Esq., Id. No. 87077 ? Lauren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 ? Jay B. Jones, Esq., Id. No. 86657 ? Peter J. Mulcahy, Esq., Id. No. 61791 ? Andrew L. Spivack, Esq., Id. No. 84439 ? Jaime McGuinness, Esq., Id. No. 90134 ? Chrisovalante P. Fliakos, Esq., Id. No. 94620 ? Joshua I. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Andrew C. Bramblett, Esq., Id. No. 208375 Attorney for Plaintiff 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. PHS # 174192 PHH MORTGAGE CORPORATION CUMBERLAND COUNTY ` Plaintiff, • v. COURT OF COMMON PLEAS MICHAEL S. NAILOR CIVIL DIVISION Defendant(s). NO. 08-2058 CIVIL TERM AMENDED AFFIDAVIT PURSUANT TO RULE 3129.1 PHH MORTGAGE CORPORATION Plaintiff in the above action, by the undersigned attorney, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at 416 BRANDY LANE, MECHANICSBURG, PA 17055. 1. Name and address of Owner(s) or reputed Owner(s): Name Address (if address cannot be reasonably ascertained, please indicate) MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBURG, PA 17055 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 Address (if address cannot be reasonably ascertained, please indicate) None 4. Name and address of last recorded holder of every mortgage of record: Name Address (if address cannot be reasonably ascertained, please indicate) None 5. Name and address of every other person who has any record lien on the property: Name Address (if address cannot be reasonably ascertained, please indicate) Borough of Mechanicsburg 36 West Allen Street c/o David J. Spotts, Esquire Mechanicsburg, PA 17055 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 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 Tenant/Occupant Domestic Relations of Cumberland County Address (if address cannot be reasonably ascertained, please indicate) 416 BRANDY LANE MECHANICSBURG, PA 17055 13 North Hanover Street Carlisle, PA 17013 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 PO Box 2675 Harrisburg, PA 17105 6'h 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.A. § 4904 relating to unswom falsification to authorities. Lawrence T. Phel s c".. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 ,,,&i etal R. Shah-Jani, Esq., Id. No. 81760 Jemne R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 Attorney for Plaintiff *0 -1 z ll? A W N p ?D 00 J O? c.n A w y c ' c a a p: N ?c 0 z a r 0 E?? ? MR °y " ? t>7 v" 0 aw N _? o g.?: 'o c ?. 8 0. w 9 o oa oggn.oo? 9 5.gc c W d ? y w Q n x °. ?a o a o• v ? _° m O0. p X m v w ? ?ya n??l< n? ?y 3 S a?n5' y . o ?? sb 00 0 C b ? a O ,y CAD o a y N b ° z y ? O y o CD C D o a CD C r* ... y r ? a oNO w C ? ?a C) - CD CD w r_ o RZ* o a? aw CD w J ?-3 O C N '17 O O CD C o CD C (D w W O C a ,fD o w. o. o>z of a W ?.: P? !'17 N a?wr ?o b 0 .. r Y 02 1M $ 02.52° 0004218010 AUG26 2009 MAILED FROM ZIPCODE 19103 N I `?' I N r z G Q m Oto YW(?C7 z' yb ?o s X7CC) r ; O ?w 97y Cl) Z o are ??o y r Y z . r ? e? c ? a M•o• N °^+ c o° c a$o -m o y v iu ? m A ^ c c c. ° ?. c 'O ? g H a FP?w a Co cn^ ? 9 °myH ?a»s• d R" O R N ti c rn ? a m m o A --1 ?d a d? o° O v g rn 3 0 v m m 0 A w ?,I?:IWINI-I0I-I-I-I-I-I-, IWIN A7 O P-+ J .G. N.a ?O N ar A7 a N O ?O D n ZI c ? ?A lmigli, 0 ?. ro O ? y O CCD a I ??M Pols)-- 4 IL 4 co 0 . 021M?g P d $01 000427- 72.56 WA441LED FR OM ZIPC T 19 2009 ODE 19103 rTTT,lii o>z " ¢, A+ A A CCD W d C? >. AID H+ d ? O ? ? O C ?. op r r o b O 11 i i RfD-OFFICE OF 2119 NOV 17 10t 42 Phelan Hallinan & Schmieg, LLP By: Lawrence T. Phelan, Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Jaime McGuinness, Esq., Id. No. 90134 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 PHH MORTGAGE CORPORATION Plaintiff ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division v. MICHAEL S. NAILOR CUMBERLAND County No. 08-2058 CIVIL TERM Defendant CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of our Motion to Reassess Damages noting a Rule Return date of N? 'l, I u I was sent to the following individual on the date indicated below. MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBURG, PA 17055 Phelan Hallinan & Schmieg, LLP DATE: I v By: wre a an, Esq., Id. No. 322 Fr . Hallinan, Esq., Id. N 95 ? Daniel G. Schmieg, Esq., Id. No. 62205 ? Michele M. Bradford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ? Sheetal R. Shah-Jani, Esq., Id. No. 81760 ? Jenine R. Davey, Esq., Id. No. 87077 ? Lauren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 V . Jones, Esq., Id. No. 86657 J. Mulcahy, Esq., Id. No. 61791 ew L. Spivack, Esq., Id. No. 84439 ? Jaime McGuinness, Esq., Id. No. 90134 ? Chrisovalante P. Fliakos, Esq., Id. No. 94620 ? Joshua I. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Andrew C. Bramblett, Esq., Id. No. 208375 ATTORNEY FOR PLAINTIFF r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA PHH MORTGAGE CORPORATION Court of Common Pleas Plaintiff Civil Division V. MICHAEL S. NAILOR Defendant RULE CUMBERLAND County No. 08-2058 CIVIL TERM AND NOW, this 2?1?-dayof 2009, a Rule is entered upon the Defendant to show cause why an Order should not be entered granting Plaintiff's Motion to Reassess .#I Damages. {} 3 -? 1 w i I t Zo 1z S 04 ctJd eJ Rule Returnable 4 Main BY THE COURT J. i to )"t y W"W", I We Wft set my t f 3 . 7*1 7029 NOV 19 Pl, t 31 SHERIFF'S OFFICE OF CUMBERLAND CO TX.r .,- Ronny R Anderson YE ?: ?'??`?' Sheriff c ^^? 1=rW'n» 7 Jody ?arnrl,rrsfb S Smith 14 20I9 JAN _$ PM 2; Q9 Chief Deputy Edward L Schorpp Ci.`?v rNil Solicitor OFF PHH Mortgage Corporation I vs. Michael S Nailor Case Number 2008-2058 SHERIFF'S RETURN OF SERVICE 09/25/2009 01:44 PM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on 09-25-09 at 1344 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 Michael S. Nailor, located at 416 Brandy Lane Mechanicsburg, Cumberland County, Pennsylvania according to law. 10/02/2009 06:12 PM - Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on 10-02-09 at 1812 hours, he served a true copy of the within Real Estate Writ, Notice and Description, in the above entitled action, upon the within named defendant, to wit: Michael S. Nailor, by making known unto, Michae S. Nailor, personally, at, Cumberland County, Pennsylvania its contents and at the same time handing to him personally the said true and correct copy of the same. 12/09/2009 Real Estate Property sold back to Mortgage Company for 1.00 on 12/9/09 01/07/2010 Ronny R. Anderson, 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 December 9, 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 Secretary of Veterans Affairs, an Officer of the United States of America, being the buyer in this execution, paid to Sheriff Ronny R. Anderson, the sum of $ 741.64 SHERIFF COST: $741.64 SO January07, 2010 NNY R ANDER-SON,8ri&W#L--• ?U? BEd ?yg GAGE CORPORATION r Plaintiff, V. MICHAEL S. NAILOI7 Defendant(s). CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 08-2058 CIVIL TERM AFFIDAVIT PURSUANT TO RULE 3129.1 PHH MORTGAGE CORPORATION, Plaintiff in the above action, by the undersigned attorney, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at 416 BRANDY LANE MECHANICSBURG PA 17055. 1. Name and address of Owner(s) or reputed Owner(s): Name Address (if address cannot be reasonably ascertained, please indicate) MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBURG, PA 17055 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 Address (if address cannot be reasonably ascertained, please indicate) None 4. Name and address of last recorded holder of every mortgage of record: Name Address (if address cannot be reasonably ascertained, please indicate) None 5. Name and address of every other person who has any record lien on the property: Name Address (if address cannot be reasonably ascertained, please indicate) None I.a address of every other person who has any record interest in the property and whose y be affected by the sale. Name 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 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 Address (if address cannot be reasonably ascertained, please indicate) 416 BRANDY LANE MECHANICSBURG, PA 17055 13 North Hanover Street Carlisle, PA 17013 PO Box 2675 Harrisburg, PA 17105 6`h Floor, Strawberry Sq., Dept. 28061 Harrisburg, PA 17128 IP Floor, Suite 1300 1001 Liberty Avenue Pittsburgh, PA 15222 Department of Public Welfare P.O. Box 8486 TPL Casualty Unit Willow Oak Building Estate Recovery Program Harrisburg, PA 17105 I verify that the statements made in this affidavit ar ue and correct to the best of my personal knowledge or information and belief. I understandat als statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unswo n f s' ication to authorities. August 24, 2009 DATE ? Lawrence T. Phelan, Esq., Id. 227 ? Francis S. Hallinan, Esq., Id. No. 62695 ? Daniel G. Schmieg, Esq., Id. No. 62205 ? Michele M. Bradford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ? Shee R. Shah-Jani, Esq., Id. No. 81760 ? X me R. Davey, Esq., Id. No. 87077 F'Lauren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 ? Jay B. Jones, Esq., Id. No. 86657 ? Peter J. Mulcahy, Esq., Id. No. 61791 ? Andrew L. Spivack, Esq., Id. No. 84439 ? Jaime McGuinness, Esq., Id. No. 90134 ? Chrisovalante P. Fliakos, Esq., Id. No. 94620 ? Joshua I. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Andrew C. Bramblett, Esq., Id. No. 208375 Attorney for Plaintiff One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 (215) 563-7000 PHH MORTGAGE CORPORATION Plaintiff, V. MICHAEL S. NAILOR Defendant(s). TO: MICHAEL S. NAILOR 416 BRANDY LANE MECHANICSBURG, PA 17055 CUMBERLAND COUNTY No. 08-2058 CIVIL TERM August 24, 2009 * *THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS 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 416 BRANDY LANE, MECHANICSBURG, PA 17055, is scheduled to be sold at the Sheriff s Sale on DECEMBER 9, 2009 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $131,082.87 obtained by PHH MORTGAGE CORPORATION (the mortgagee) against you. In the event the sale is continued, an announcement will be made at said sale in compliance with Pa.R.C.P., Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriffs Sale, you must take immediate action: 1. The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: (215) 563-7000. 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause. You may also be able to stop the sale through other legal proceedings. You may need an attorney to assert your rights. The sooner you contact one, the more chance you will have of stopping the sale. (See notice on page two on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1. If the Sheriffs Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling (215) 563-7000. 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property. 3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find out if this has happened, you may call (717) 240-6390. 4. If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened. 5. You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A schedule of distribution of the money bid for your house will be filed by the Sheriff within 30 days of the sale. This schedule will state who will be receiving that money. The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the distribution is filed. 7. You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a representative of the plaintiff at the Sheriff's Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land situate in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, and described according to a survey made by Gerrit J. Betz, Registered Surveyor, dated May 12, 1973, as follows, to wit: BEGINNING at a hub on the southeasterly side of Brandy Lane at the corner of lands now or formerly of Robert McNally being House No. 414, said point being measured along the said side of Brandy Lane, 632 feet to the corner line of North Filbert Street; thence extending from said point of beginning and along the said side of Brandy Lane, North 42 degrees 45 minutes East the distance of 62.50 feet to a point at the corner of lands now or formerly of J & M Masonary Contractors; thence along lands now or formerly of J M Masonary Contractors, south 47 degrees 15 minutes east, the distance of 275.72 feet to a hub at the corner of lands now or formerly of Joseph Kramer; thence along lands now or formerly of Joseph Kramer, south 42 degrees 00 minutes west, the distance of 62.53 feet to a hub at the corner of lands now or formerly of Robert McNally; thence along lands now or formerly of Robert McNally, north 47 degrees 15 minutes west, the distance of 276.54 feet to a point, the place of BEGINNING. HAVING thereon erected a dwelling house known and numbered as 416 Brandy Lane. UNDER AND SUBJECT, nevertheless, to restrictions, conditions and easements of prior record pertaining to said premises. TITLE TO SAID PREMISES IS VESTED IN Michael S. Nailor, single individual, by Deed from Jeffrey A. Sampson and Teresa M. Sampson, fka, Teresa M. Shughart, h/w, dated 12/10/2004, recorded 12/13/2004, in Deed Book 266, page 3352. PREMISES BEING: 416 BRANDY LANE, MECHANICSBURG, PA 17055 PARCEL NO. 18-22-0521-001 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 08-2058 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due PHH MORTGAGE ACORPORATION, Plaintiff (s) From MICHAEL S. NAILOR (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 $131, 082.87 L.L. Interest FROM 12/11/2008 - 12/09/2009 (PER DIEM - $21.55) -- $7,844.20 Atty's Comm % Atty Paid $1,247.76 Plaintiff Paid Date: AUGUST 26, 2009 (Seal) Due Prothy $2.00 Other Costs - dtlt?40 Curtis R. Long, Proth tary i By: 1 Deputy REQUESTING PARTY: Name LAUREN R. TABAS, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, L.L.P, ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 93337 Real Estate Sale # On September 15, 2009 the Sheriff levied upon the defendant's interest in the real property situated in Borough of Mechanicsburg, Cumberland County, PA Known and numbered as 416 Brandy Lane, Mechanicsburg, more fully described on Exhibit "A" filed with this writ and by this reference incorporated herein. Date: September 15; 2009 By: Rea Estate Coordinator C?? The Patriot-News Co. .01 812 Market St. Harrisburg, PA 17101 Inquiries - 717-255-8213 CUMBERLAND CO. SHERIFFS OFFICE CUMBERLAND COUNTY COURT HOUSE 14t Patriot News Now you know CARLISLE PA 17013 THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Under Act No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin) ss Leslie Kramer, being duly sworn according to law, deposes and says: That she is a Staff Accountant of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot-News and The Sunday Patriot-News newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Metro editions which appeared on the date(s) indicated below. That neither she nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That she has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY This ad ran on the date(s) shown below: 10/23/09 10/30/09 11/06109 BY vkli? 2M Sworn to subscribed before me is 1 d of November C 2009 A. D. 4 Notary Public COMMONWEALTH OF PENNSYLVANIA Notarial Sea. ^ - C??Of ?buner, Notary Pubtic My Commi . nJ. DauPhin County Member, omr"b Pennsylvania Nov. 26, 2011 Association 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: October 23, October 30 and November 6, 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. ?kw isa Marie Coyn , Editor Writ No. 2008-2068 Civil PHH Mortgage Corporation vs. Michael S. Nailor Atty: Lauren Tabas By virtue of a Writ of Execution No. 08-2058 CIVIL TERM, PHH MORTGAGE CORPORATION vs. MICHAEL S. NAILOR, ownerof prop- erty situate in the BOROUGH OF MECHANICSBURG, Cumberland County, Pennsylvania, being 416 BRANDY LANE, MECHANICSBURG, PA 17055. Parcel No. 18-22-0521-001. Improvements thereon: RESIDEN- TIAL DWELLING. SWORN TO AND SUBSCRIBED before me this 6 day of November. 2009 NotaryNOTARIAL SEAL DEBORAH A COLLINS Notary Public CARLISLE BORO, CUMBERLAND COUNTY My Commission Expires Apr 28, 2010 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND }SS: I, Robert P. Ziegler, Recorder of Deeds in and for said County and State do hereby certify that the Sheriff s Deed in which SECRETARY OF VETERANS AFFAIRS is the grantee the same having been sold to said grantee on the 9TH day of DEC A.D., 2009, under and by virtue of a writ Execution issued on the 26TH day of AUGH, A.D., 2009, out of the Court of Common Pleas of said County as of Civil Term, 2008 Number 2058, at the suit of PHH MTG CORP against MICHAEL S NAILOR is duly recorded as Instrument Number 201000759. IN TESTIMONY WHEREOF, I hayp hereunto set my hand and,*eal of said office this day of A.D. ,) P Afi Recorder of Deeds