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HomeMy WebLinkAbout08-2240KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 WACHOVIA BANK, NATIONAL ASSOCIATION : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW n V. NO. Og ` o?oZ?? CiVi I2r'M FREDERICK W. ZEPLIN MORTGAGE FORECLOSURE Defendant 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET Carlisle, PA 17013 Telephone: (800) 990-9108 KEEFER, WOOD, ALLEN & RAHAL Date: March 26, 2008 By: Eugene pinsky, Jr. Attorney I.D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 WACHOVIA BANK, NATIONAL ASSOCIATION Plaintiff V. FREDERICK W. ZEPLIN Defendant NOTICIA CIVIL ACTION - LAW NO. MORTGAGE FORECLOSURE Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar Una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET Carlisle, PA 17013 Telephone: (800) 990-9108 KEEFER, WOOD, ALLEN & RAHAL Date: March 26, 2008 B . Eugen . Pepinsky, Jr. Attorney I.D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 WACHOVIA BANK, NATIONAL ASSOCIATION Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. FREDERICK W. ZEPLIN Defendant COMPLAINT CIVIL ACTION - LAW NO. Of- ;?,2 416 CI_a T MORTGAGE FORECLOSURE 1. Plaintiff Wachovia Bank, National Association, formerly First Union National Bank, is a national banking association, with offices at 600 Penn Street, Reading, Pennsylvania 19602. 2. Defendant Frederick W. Zeplin is an adult individual whose address is 15 Cumberland Road, Lemoyne, Pennsylvania 17043. 3. Defendant is the owner(s) of a tract(s) or parcel(s) of land with buildings and other improvements thereon located at 15 N. 21St Street, Camp Hill, Cumberland County, Pennsylvania 17011 (the "Premises"). The Premises are more fully described hereinafter. 4. On or about January 9, 2001, Defendant executed a Promissory Note in favor of Plaintiff in the principal amount of $188,000 (the "Note"). 5. On or about January 9, 2001, Defendant executed an Open-End Mortgage in favor of Plaintiff (the "Mortgage"), which Mortgage was duly recorded in the Office of the Recorder of Deeds, in and for Cumberland County, Pennsylvania, in Book 1663, page 0647. A true and correct copy of the Mortgage is attached hereto, made a part hereof and marked Exhibit A. 5. The failure of the Defendant, among other things, to pay when due and payable the payments under the Note constitutes a "default" as defined under the terms of the Mortgage. 6. The Defendant has failed and refused, among other things, to make payments due and payable under the Note. KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 7. The terms of the Mortgage provide that upon the occurrence of a default by the Defendant, the Plaintiff may accelerate and demand immediate payment of all sums due under the Mortgage. 8. The sum presently due and payable to Plaintiff by Defendant which is secured by the Mortgage is computed as follows: a. Unpaid Principal b. Accrued Interest through 03/26/08 C. Late charges through 03/26/08 $ 131,960.99 $ 2,008.19 $ 6,949.68 d. Attorney's Fees TOTAL 5,000.00 $ 145,918.86 9. Notice of the availability of mortgage assistance under the Homeowners Emergency Mortgage Disclosure Act of 1993 ("Act 91 ") was not required. 10. Notice of Intention to Foreclose pursuant to Section 403 of Act 6 was not required. WHEREFORE, Plaintiff demands judgment in the sum of $145,918.86, togetherwith interest as may accrue from and after March 27, 2008, and costs of suit, and for foreclosure of the Mortgage and judicial sale of the Premises. Date: March 26, 2008 KEEFER, WOOD, ALLEN & RAHAL By: Eugene Pepinsky, Jr. Attorney I.D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff VERIFICATION The undersigned Cynthia McClafferty, hereby verNies and states that 05s+, 1. She is thi,Vlce President of Wachovia Bank, Nadonal Association, Plaintiff herein; 2. She is authorized to make this VerMcation on its behalf; 3. The facts set forth in the foregoing Complaint are true and correct to the best of her knowledge, information and belief, and a_ She is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unworn falsification to authorities. Cared. March ce '2005 FON PREPARED BY: Mae Cheeks RETURN TO: SBBD Post-Closing, PA1322 First Union National Bank Business Banking Division 123 South Broad Street Philadelphia, Pennsylvania 19109 rnl{;Y fA p1 jPiN 12 RIB 11 11 I her by certify that the a re of the Bank (Mortgagee) stated below is correct All I 3S t? OPEN-END MORTGAGE AND ABSOLUTE ASSIGNMENT OF LEASES This MORTGAGE (hereafter referred to as "Mortgage") made January 9, 2001, by and between, Frederick W. Zeplin, whose address is 15 Cumberland Road, Lemoyne, Pennsylvania 17043 ("Mortgagor") and First Union National Bank, a national banking association, whose address is 123 South Broad Street, Philadelphia, Pennsylvania 19109 ("Bank"). WITNESSETH: To secure payment and performance of obligations under a Promissory Note (the "Note") dated January 9, 2001, in the amount of $188,000.00, made by Mortgagor payable to Bank, this Mortgage, other loan documents as defined in the Note (the "Loan Documents"), and swap agreements between Bank and Mortgagor as defined in 11 U.S.C. § 101, all other indebtedness of Mortgagor to Bank whenever borrowed or incurred, and any renewals, extensions, novations, or modifications of the foregoing (collectively the "Obligations"), and in consideration of these premises and for other consideration, Mortgagor does mortgage, grant and convey unto Bank, its successors and assigns, all of Mortgagor's right, title and interest now owned or hereafter acquired in and to each of the following (collectively, the "Property"): (i) all those certain tracts of land in the Borough of Camp Hill, County of Cumberland, Commonwealth of Pennsylvania described in EXHIBIT A attached hereto and made part hereof (the "Land"); (ii) all buildings and improvements now or hereafter erected on the Land; (iii) all fixtures attached to the Land or any buildings or improvements situated thereon; and (iv) all estates, rights, tenements, hereditaments, privileges, rents, issues, profits easements, and appurtenances of any kind benefiting the Land; all means of access to and from the Land, whether public or private; and all water and mineral rights. TO HAVE AND TO HOLD the Property and all the estate, right, title and interest, in law and in equity, of Mortgagor's in and to the Property unto Bank, its successors and assigns, forever. Mortgagor WARRANTS AND REPRESENTS that Mortgagor is lawfully seized of the Property, in fee simple, absolute, that Mortgagor has the legal right to convey and encumber the same, and that the Property is free and clear of all liens and encumbrances. Mortgagor further warrants and will forever defend all and singular the Property and title thereto to Bank and Bank's successors and assigns, against the lawful claims of all persons whomsoever. PROVIDED ALWAYS that if all Obligations are timely paid and performed each and every representation, warranty, agreement, and condition of this Mortgage, the other Loan Documents and any 10? 545724 (Rev w4.0) 6GUXiG 63 rAn 447 mi_main.doc 3 swap agreements, are complied with and abided by, this Mortgage and the estate hereby created shall cease and be null, void, and canceled of record. follows: To protect the security of this Mortgage, Mortgagor further represents and agrees with Bank as Payment of Obligations. That the Obligations shall be timely paid and performed. Future Advances. This Mortgage is given to secure not only existing Obligations, but also future advances to the same extent as if such future advances are made on the date of the execution of this Mortgage. The principal amount (including any swap agreements and future advances) that may be so secured may decrease or increase from time to time, but the total amount so secured at any one time shall not exceed the maximum principal amount of $188,000.00, plus all interest, costs, reimbursements, fees and expenses due under this Mortgage and secured hereby. Mortgagor shall not execute any document that impairs or otherwise impacts the priority of any future advances secured by this Mortgage. Leases, Subleases and Easements. Mortgagor shall maintain, enforce and cause to be performed all of the terms and conditions under any lease, sublease or easement which may constitute a portion of the Property. Mortgagor shall not, without the consent of Bank, enter into any new lease of all or any portion of the Property, agree to the cancellation or surrender under any lease of all or any portion of the Property, agree to prepayment of rents, issues or profits (other than rent paid at the signing of a lease or sublease), modify any such lease so as to shorten the term, decrease the rent, accelerate the payment of rent, or change the terms of any renewal option; and any such purported new lease, cancellation, surrender, prepayment or modification made without the consent of Bank shall be void as against Bank. Required Insurance. Mortgagor shall maintain with respect to the Property: (i) during construction of any improvements on the Property, "all-risk" builders risk insurance (non-reporting Completed Value with Special Cause of Loss form), in an amount not less than the total value of the improvements under construction, naming Bank as mortgagee and loss payee; (ii) upon completion of construction and at all other times, insurance against loss or damage by fire and other casualties and hazards by insurance written on an "all risks" basis, including specifically windstorm and/or hail damage, in an amount not less than the replacement cost thereof, naming Bank as loss payee and mortgagee; (iii) if the Property is required to be insured pursuant to the National Flood Reform Act of 1994, and the regulations promulgated thereunder, flood insurance in an amount at least equal to the lesser of the completed replacement value of the improvements on the Property or the maximum limit of coverage available thereunder, naming Bank as mortgagee and loss payee; and (iv) liability insurance providing coverage in such amount as Bank may require but in no event less than $1,000,000.00 combined single limit, naming Bank as an additional insured; and (v) such other insurance as Bank may require from time to time. All casualty insurance policies shall contain an endorsement or agreement by the insurer in form satisfactory to Bank that any loss shall be payable in accordance with the terms of such policy notwithstanding any act or negligence of Mortgagor and the further agreement of the insurer waiving rights of subrogation against Bank, and rights of set-off, counterclaim or deductions against Mortgagor. All insurance policies shall be in form, provide coverages, be issued by companies and be in amounts satisfactory to Bank. At least 30 days prior to the expiration of each such policy, Mortgagor shall furnish Bank with evidence satisfactory to Bank that such policy has been renewed or replaced or is no longer required hereunder. All such policies shall provide that the policy will not be canceled or materially amended without at least 30 days prior written notice to Bank. In the event Mortgagor fails to provide, maintain, keep in force, and furnish to Bank the policies of insurance required by this paragraph, Bank may procure such insurance or single-interest insurance in such amounts, at such premium, for such risks and by such means as Bank chooses, at Mortgagor's expense; provided however, Bank shall have no responsibility to obtain any insurance, but if Bank does obtain insurance, Bank shall have no 130tin 663 pnc .G48 545724 (Rev w4.0) Page 2 mi_main.doc responsibility to assure that the insurance obtained shall be adequate or provide any protection to Mortgagor. Insurance Proceeds. After occurrence of any loss to any of the Property, Mortgagor shall give prompt written notice thereof to Bank, In the event of such loss all insurance proceeds shall be payable to Bank, and Mortgagor hereby authorizes and directs any affected insurance company to make payment of such proceeds directly to 01 Bank. Bank is hereby authorized by Mortgagor to settle, adjust or compromise any claims for loss or - damage under any policy or policies of insurance and Mortgagor appoints Bank as its attorney-in-fact to receive and endorse any insurance proceeds to Bank, which appointment is coupled with an interest and shall be irrevocable as long as any Obligations remain unsatisfied. R. In the event of any damage to or destruction of the Property, Bank shall have the option of applying or paying all or part of the insurance proceeds to (i) the Obligations in such order as Bank may € determine, (ii) restoration of the Property, or (iii) Mortgagor. Nothing herein shall be deemed to excuse Mortgagor from restoring, repairing and maintaining the Property as required herein. Impositions; Escrow Deposit. Mortgagor will pay all taxes, levies, assessments and other fees and charges imposed upon or which may become a lien upon the Property under any law or ordinance (all of the foregoing collectively "Impositions") before they become delinquent and in any event in the same calendar year in which they first become due. Upon request of Bank, Mortgagor shall add to each periodic payment required under the Note the amount estimated by Bank to be sufficient to enable Bank to pay, as they come due, all Impositions and insurance premiums which Mortgagor is required to pay hereunder. Payments requested under this provision shall be supplemented or adjusted as required by Bank from time to time. Such funds may be commingled with the general funds of Bank and shall not earn interest. Upon the occurrence of a Default, Bank may apply such funds to pay any of the Obligations. Use of Property. Mortgagor shall use and operate, and require its lessees or licensees to use and operate, the Property in compliance with all applicable laws and ordinances, covenants, and restrictions, and with all applicable requirements of any lease or sublease now or hereafter affecting the Property. Mortgagor shall not permit any unlawful use of the Property or any use that may give rise to a claim of forfeiture of any of the Property. Mortgagor shall not allow changes in the stated use of Property from that disclosed to Bank at the time of execution hereof. Mortgagor shall not initiate or acquiesce to a zoning change of the Property without prior notice to, and written consent of, Bank. Maintenance, Repairs and Alterations. Mortgagor shall keep and maintain the Property in good condition and repair and fully protected from the elements to the satisfaction of Bank. Mortgagor will not remove, demolish or structurally alter any of the buildings or other improvements on the Property (except such alterations as may be required by laws, ordinances or regulations) without the prior written consent of Bank. Mortgagor shall promptly notify Bank in writing of any material loss, damage or adverse condition affecting the Property. Eminent Domain. Should the Property or any interest therein be taken or damaged by reason of any public use or improvement or condemnation proceeding ("Condemnation"), or should Mortgagor receive any notice or other information regarding such Condemnation, Mortgagor shall give prompt written notice thereof to Bank. Bank shall be entitled to all compensation, awards and other payments or relief granted in connection with such Condemnation and, at its option, may commence, appear in and prosecute in its own name any action or proceedings relating thereto. Bank shall be entitled to make any compromise or settlement in connection with such taking or damage. All compensation, awards, and damages awarded to Mortgagor related to any Condemnation (the "Proceeds") are hereby assigned to Bank and Mortgagor agrees to execute such further assignments of the Proceeds as Bank may require. Bank shall have the option of applying or paying the Proceeds in the same manner as insurance proceeds as provided herein. Mortgagor appoints Bank as its attorney-in-fact to receive and endorse the BOux iGG3 na .649 545724 (Rev w4.0) Page 3 mi_main.doc Proceeds to Bank, which appointment is coupled with an interest and shall be irrevocable as long as any Obligations remain unsatisfied. Environmental Condition of Property and Indemnity. Mortgagor warrants and represents to °R Bank, except as reported by Mortgagor to Bank in writing, that: (i) Mortgagor has inspected and is familiar with the environmental condition of the Property; (ii) the Property and Mortgagor, and any occupants of the Property, are in compliance with and shall continue to be in compliance with all applicable federal, state and local laws and regulations intended to protect the environment and public U, health and safety as the same may be amended from time to time ("Environmental Laws"); (iii) the Property is not and has never been used to generate, handle, treat, store or dispose of, in any quantity, ?F oil, petroleum products, hazardous or toxic substances, hazardous waste, regulated substances or j: hazardous air pollutants ("Hazardous Materials") in violation of any Environmental Laws; and (iv) no Hazardous Materials (including asbestos or lead paint in any form) are located on or under the Property or emanate from the Property. Further, Mortgagor represents to Bank that no portion of the Property is a 1 protected wetland. Mortgagor agrees to notify Bank immediately upon receipt of any citations, warnings, orders, notices, consent agreements, process or claims alleging or relating to violations of any 9 Environmental Laws or to the environmental condition of the Property. Mortgagor shall indemnify, hold harmless, and defend Bank from and against any and all damages, penalties, fines, claims, suits, liabilities, costs, judgments and expenses, including attorneys', consultants' or experts' fees of every kind and nature incurred, suffered by or asserted against Bank as a direct or indirect result of: (i) representations made by Mortgagor in this Section being or becoming untrue in any material respect; (ii) Mortgagor's violation of or failure to meet the requirements of any Environmental Laws; or (iii) Hazardous Materials which, while the Property is subject to this Mortgage, exist on the Property. Bank shall have the right to arrange for or conduct environmental inspections of the Property from time to time (including the taking of soil, water, air or material samples). The cost of such inspections made after Default or which are required by laws or regulations applicable to Bank shall be borne by Mortgagor. Mortgagor's obligations under this Section shall continue, survive and remain in full force and effect notwithstanding foreclosure, satisfaction of this Mortgage or full satisfaction of the Obligations. However, Mortgagor's indemnity shall not apply to any negligent or intentional act of Bank which takes place after foreclosure or satisfaction of this Mortgage. Appraisals. Mortgagor agrees that Bank may obtain an appraisal of the Property when required by the regulations of the Federal Reserve Board or the Office of the Comptroller of the Currency or at such other times as Bank may reasonably require. Such appraisals shall be performed by an independent third party appraiser selected by Bank. The cost of such appraisals shall be borne by Mortgagor. If requested by Bank, Mortgagor shall execute an engagement letter addressed to the appraiser selected by Bank. Mortgagor failure or refusal to sign such an engagement letter, however, shall not impair Bank's right to obtain such an appraisal. Mortgagor agrees to pay the cost of such appraisal within 10 days after receiving an invoice for such appraisal. Inspections. Bank, or its representatives or agents, are authorized to enter at any reasonable time upon any part of the Property for the purpose of inspecting the Property and for the purpose of performing any of the acts it is authorized to perform under the terms of this Mortgage. Liens and Subrogation. Mortgagor shall pay and promptly discharge all liens, claims and encumbrances upon the Property. Mortgagor shall have the right to contest in good faith the validity of any such lien, claim or encumbrance, provided: (i) such contest suspends the collection thereof or there is no danger of the Property being sold or forfeited while such contest is pending; (ii) Mortgagor first deposits with Bank a bond or other security satisfactory to Bank in such amounts as Bank shall reasonably require; and (iii) Mortgagor thereafter diligently proceeds to cause such lien, claim or encumbrance to be removed and discharged. Bank shall be subrogated to any liens, claims and encumbrances against Mortgagor or the Property that are paid or discharged through payment by Bank or with loan proceeds, notwithstanding the record cancellation or satisfaction thereof. 8 0 G X iGG3 PAGc .G50 545724 (Rev w4.0) Page 4 mi_main.doc Waiver of Mortgagor's Rights. Mortgagor waives any: (i) rights of homestead or other exemption with regard to any of the Property; (ii) rights or claims of equitable or statutory redemption; (iii) rights of appraisal; and (iv) rights to require marshaling of assets. Payments by Bank; Indemnification. In the event of default in the timely payment or performance of any of the Obligations, Bank, at its option and without any duty on its part to determine the validity or necessity thereof, may pay the sums for which Mortgagor is obligated. Further, Bank may pay such sums as Bank deems appropriate for the protection and maintenance of the Property including, without limitation, sums to pay Impositions and other levies, assessments or liens, maintain insurance, make repairs, secure the Property, maintain utility service, intervene in any condemnation and pay attorneys' fees and other fees and costs to enforce this Mortgage or protect the lien hereof (including foreclosure) or collect the Obligations, without limitation, including those incurred in any proceeding including Bankruptcy or arbitration. Any amounts so paid shall bear interest at the default rate stated in the Note and shall be secured by this Mortgage. In the event Bank shall become party to any suit or legal proceeding by reason of its status as holder of this Mortgage, Mortgagor shall indemnify and hold harmless Bank and reimburse Bank for any amounts paid or incurred by Bank, including all reasonable costs, charges and attorneys' fees in any such suit or proceeding. Assignment of Rents. Mortgagor hereby absolutely assigns and transfers to Bank all the leases, rents, issues and profits of the Property (collectively "Rents"). Although this assignment is effective immediately, so long as no Default exists, Bank gives to and confers upon Mortgagor the privilege under a revocable license to collect as they become due, but not prior to accrual, the Rents and to demand, receive and enforce payment, give receipts, releases and satisfactions, and sue in the name of Mortgagor for all such Rents. Mortgagor represents there has been no prior assignment of leases or Rents, and agrees not to further assign such leases or Rents. Upon any occurrence of Default, the license granted to Mortgagor herein shall be automatically revoked without further notice to or demand upon Mortgagor, and Bank shall have the right, in its discretion, without notice, by agent or by a receiver appointed by a court, and without regard to the adequacy of any security for the Obligations, (i) to enter upon and take possession of the Property, (ii) notify tenants, subtenants and any property manager to pay Rents to Bank or its designee, and upon receipt of such notice such persons are authorized and directed to make payment as specified in the notice and disregard any contrary direction or instruction by Mortgagor, and (iii) in its own name, sue for or otherwise collect Rents, including those past due, and apply Rents, less costs and expenses of operation and collection, including attorneys' fees, to the Obligations in such order and manner as Bank may determine or as otherwise provided for herein. Bank's exercise of any one or more of the foregoing rights shall not cure or waive any Default or notice of Default hereunder. Due on Sale or Further Encumbrance. The direct or indirect sale, assignment, or conveyance of the Property, or any interest therein, or the further encumbrance of the Property, without Bank's written consent shall, at Bank's option, constitute a Default under this Mortgage. Transfer of control of or a controlling interest in the Mortgagor shall be deemed a transfer of the Property. Remedies of Bank on Default. Failure of Mortgagor or any other person liable to timely pay or perform any of the Obligations is a default ("Default") under this Mortgage. Upon the occurrence of Default the following remedies are available, without limitation, to Bank: (i) Bank may exercise any or all of Bank's remedies under this Mortgage or other Loan Documents including, without limitation, acceleration of maturity of all payments and Obligations; (ii) Bank may take immediate possession of the Property or any part thereof (which Mortgagor agrees to surrender to Bank) and manage, control or lease the same to such persons and at such rental as it may deem proper and collect and apply Rents to the payment of: (a) the Obligations, together with all costs and attorneys' fees; (b) all Impositions and any other levies, assessments or liens which may be prior in lien or payment to the Obligations, and premiums for insurance, with interest on all such items; and (c) the cost of all alterations, repairs, replacements and expenses incident to taking and retaining possession of the Property and the management and operation a06Kf J PAGc' .G--5i 545724 (Rev w4.0) Page 5 mi_main.doc thereof; all in such order or priority as Bank in its sole discretion may determine. The taking of possession shall not prevent concurrent or later proceedings for the foreclosure sale of the Property; (iii) Bank may apply to any court of competent jurisdiction for the appointment of a receiver for all purposes including, without limitation, to manage and operate the Property or any part thereof, and to apply the Rents therefrom as hereinabove provided. In the event of such application, Mortgagor consents to the appointment of a receiver, and agrees that a receiver may be appointed without notice to Mortgagor, without regard to whether Mortgagor has committed waste or permitted deterioration of the Property, without regard to the adequacy of any security for the Obligations, and without regard to the solvency of Mortgagor or any other person, firm or corporation who or which may be liable for the payment of the Obligations; (iv) Bank may exercise all the remedies of a mortgagee as provided by law and in equity including, without limitation, foreclosure upon this Mortgage and sale of the Property, or any part of the Property, at public sale conducted according to applicable law (referred to as "Sale") and conduct additional Sales as may be required until all of the Property is sold or the Obligations are satisfied; (v) With respect to any portion of the Property governed by the UCC, Bank shall have all of the rights and remedies of a secured party thereunder. Bank may elect to foreclose upon any Property that is fixtures under law applicable to foreclosure of interests in real estate or law applicable to personal property; (vi) Bank may bid at Sale and may accept, as successful bidder, credit of the bid amount against the Obligations as payment of any portion of the purchase price; and (vii) Bank shall apply the proceeds of Sale, first to any fees or attorney fees permitted Bank by law in connection with Sale, second to expenses of foreclosure, publication, and sale permitted Bank by law in connection with Sale, third to the Obligations, and any remaining proceeds as required by law. Miscellaneous Provisions. Mortgagor agrees to the following: (i) All remedies available to Bank with respect to this Mortgage or available at law or in equity shall be cumulative and may be pursued concurrently or successively. No delay by Bank in exercising any remedy shall operate as a waiver of that remedy or of any Default. Any payment by Bank or acceptance by Bank of any partial payment shall not constitute a waiver by Bank of any Default; (ii) The provisions hereof shall be binding upon and inure to the benefit of Mortgagor, its heirs, personal representatives, successors and assigns including, without limitation, subsequent owners of the Property or any part thereof, and shall be binding upon and inure to the benefit of Bank, its successors and assigns and any future holder of the Note or other Obligations; (iii) Any notices, demands or requests shall be sufficiently given Mortgagor if in writing and mailed or delivered to the address of Mortgagor shown above or to another address as provided herein and to Bank if in writing and mailed or delivered to Bank's office address shown above, or such other address as Bank may specify from time to time and in the event that either party hereto changes its address at any time prior to the date the Obligations are paid in full, that party shall promptly give written notice of such change of address by registered or certified mail, return receipt requested, all charges prepaid; (iv) This Mortgage may not be changed, terminated or modified orally or in any manner other than by an instrument in writing signed by the parties hereto; (v) The captions or headings at the beginning of each paragraph hereof are for the convenience of the parties and are not a part of this Mortgage; (vi) If the lien of this Mortgage is invalid or unenforceable as to any part of the Obligations, the unsecured portion of the Obligations shall be completely paid (and all payments made shall be deemed to have first been applied to payment of the unsecured portion of the Obligations) prior to payment of the secured portion of the Obligations and if any clause, provision or obligation hereunder is determined invalid or unenforceable the remainder of this Mortgage shall be construed and enforced as if such clause, provision or obligation had not been contained herein; (vii) This Mortgage shall be governed by and construed under the laws of the jurisdiction where this Mortgage is recorded; (viii) Mortgagor by execution and Bank by acceptance of this Mortgage agree to be bound by the terms and provisions hereof. CONFESSION OF JUDGMENT FOR POSSESSION. FOR THE PURPOSE OF OBTAINING POSSESSION OF THE PROPERTY UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT, MORTGAGOR HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD, IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, AS ATTORNEY FOR MORTGAGOR, AS WELL AS FOR THE PERSONS CLAIMING UNDER, BY, OR THROUGH MORTGAGOR, TO APPEAR FOR AND CONFESS JUDGMENT AGAINST MORTGAGOR AND ALL PERSONS CLAIMING UNDER, BY, OR THROUGH MORTGAGOR, IN FAVOR OF BANK FOR THE a Pact L52 CI16 545724 (Rev w4.0) Page 6 mi_main.doc RECOVERY BY BANK OF POSSESSION OF THE PROPERTY, FOR WHICH THIS MORTGAGE (OR A COPY THEREOF VERIFIED BY AFFIDAVIT) SHALL BE A SUFFICIENT WARRANT; WHEREUPON A WRIT OF POSSESSION OF THE PROPERTY MAY BE ISSUED FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER AND WITHOUT STAY OF EXECUTION, MORTGAGOR HEREBY RELEASING AND AGREEING TO RELEASE BANK AND ANY SUCH ATTORNEY FROM ALL r PROCEDURAL ERRORS AND DEFECTS WHATSOEVER IN ENTERING SUCH ACTION OR it JUDGMENT OR IN CAUSING SUCH WRIT OR PROCESS TO BE ISSUED OR IN ANY PROCEEDING "x THEREON OR CONCERNING THE SAME, PROVIDED THAT BANK SHALL HAVE FILED IN SUCH ACTION AN AFFIDAVIT MADE ON BANK'S BEHALF SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE ENTRY OF SUCH JUDGMENT ACCORDING TO THE TERMS OF THIS INSTRUMENT, OF WHICH FACTS SUCH AFFIDAVIT SHALL BE PRIMA FACIE EVIDENCE. IT IS HEREBY EXPRESSLY AGREED THAT IF FOR ANY REASON AFTER ANY SUCH ACTION HAS BEEN COMMENCED, THE SAME SHALL BE DISCONTINUED, MARKED SATISFIED OF RECORD, OR BE k TERMINATED, OR POSSESSION OF THE PROPERTY REMAIN IN OR BE RESTORED TO MORTGAGOR OR ANYONE CLAIMING UNDER, BY, OR THROUGH MORTGAGOR, BANK MAY, ?F WHENEVER AND AS OFTEN AS BANK SHALL HAVE THE RIGHT TO TAKE POSSESSION AGAIN OF ?. THE PROPERTY, BRING ONE OR MORE FURTHER ACTIONS IN THE MANNER HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE PROPERTY AND TO CONFESS JUDGMENT THEREIN AS HEREINABOVE PROVIDED, AND THE AUTHORITY AND POWER ABOVE GIVEN TO ANY SUCH ATTORNEY SHALL EXTEND TO ALL SUCH FURTHER ACTIONS IN EJECTMENT AND CONFESSION OF JUDGMENT THEREIN AS HEREINABOVE PROVIDED WHETHER BEFORE OR AFTER AN ACTION OF MORTGAGE FORECLOSURE IS BROUGHT OR OTHER PROCEEDINGS IN EXECUTION ARE INSTITUTED UPON THIS MORTGAGE OR ANY INSTRUMENT THEN EVIDENCING ANY OF THE OBLIGATIONS, AND AFTER JUDGMENT THEREON OR THEREIN AND AFTER A JUDICIAL SALE OF THE PROPERTY. IN WITNESS WHEREOF, Mortgagor has signed and sealed this instrument as of the day and year first above written. Mortgagor ck W. Zep BOOKi663'W'E '653 545724 (Rev w4.0) Page 7 mi_main.doc Commonwea h of Penns Ivania County of Individual Acknowledgment I certify that Frederick W. Zeplin, a person(45 known to me, appeared before me this day, and being informed of the contents thereof, acknowledged execution of the foregoing instrument. Witness my hand and official seal, this trnniea (vame or My Commission Expires: Notarial Seal Stephanie E. Witmer, Notary Public Hampden Twp., Cumberland County My Contmimelon Expires July 28, 2001 Membor, Pennsylvania Association of Notaries 60GdGG3 PAGC .654 545724 (Rev w4.0) Page 8 Notary Public mi_main.doc Exhibit "A" ALL THAT CERTAIN tract or lot of land situate in the Borough of Camp Hill, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the eastern side of North 21st Street, which point is referenced a distance of One Hundred Fifty (150) feet measured in a northwardly direction along the east side of North 21st Street from its intersection with Market Street and which point is also at the northern line of a ten (10) feet wide alley; thence along the eastern side of North 21st Street North Six (06) degrees Thirty (30) minutes West, a distance of One Hundred Five and Fifty One-Hundredths (105.50) feet to a point on the southern side of a Fourteen (14) feet wide alley; thence along the southern side of said alley, South Eighty-One (81) degrees Four (04) minutes Twenty-Six (26) seconds East, a distance of One Hundred Forty-Three and Ninety-Eight One-Hundredths (143.98) feet to a point on the western side of a Ten (10) feet wide unopened alley; thence along the western side of said alley South Six (06) degrees Thirty (30) minutes East, a distance of Sixty-Seven and Twenty One-Hundredths (67.20) feet to a point on the north side of a Ten (10) feet wide alley first above referred to; and thence along the northern side of said alley South Eighty-Three (83) degrees Thirty (30) minutes West, a distance of One Hundred Thirty-Eight and Eighty One-Hundredths (138.80) feet to the eastern side of North 21st Street, the Place of BEGINNING. HAVING thereon erected a one and one half (1 1/2) story brick and frame dwelling known and numbered as 15 North 21st Street, Camp Hill, Pennsylvania. THE DESCRIPTION is made in accordance with a survey by William B. Whittock, RPE, dated September 18, 1969, as well as a survey by C. W. Junkins Associates, Inc. dated June 20, 1985. BEING THE SAME PREMISES which Jack D. Godfrey and Zelda M. Godfrey, his wife, by their deed to be recorded simultaneously herewith, in the Office of the Rec,arder of Deeds of Cumberland County, granted and conveyed,,_,uftt'o Frederick W. Zeplin. 7 ib+. 6 vNNl _s N A i) w N Co q C? C f C? C:? rn 0 SHERIFF'S RETURN - REGULAR CASE NO: 2008-02240 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WACHOVIA BANK NATIONAL ASSOC VS ZEPLIN FREDERICK W ROBERT BITNER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon ZEPLIN FREDERICK W the DEFENDANT , at 1836:00 HOURS, on the 24th day of April , 2008 at 15 CUMBERLAND ROAD LEMOYNE, PA 17043 FREDERICK ZEPLIN 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 Postage Surcharge Nl.2 g/a T 9- ,/ Sworn and Subscibed to before me this of So Answers: 18.00 16.00 _ .58 10.00 R. Thomas Kline .00 44.58 04/25/2008 KEEFER WOOD ALLEN RAHAL By. day Deputy Sheriff A.D. Michael S. Travis ID No. 77399 3904 Trindle Road Camp Hill, PA 17011 717-731-9502 mst @mtravislaw Attorney for Defendant Wachovia Bank, National Association Plaintiff, vs. Frederick W. Zeplin IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ) Case No., No. 08-2240 CIVIL ACTION LA MORTGAGE FORECLOSURE Defendant ANSWER TO COMPLAINT Now comes the Defendant, Frederick W. Zeplin, by and through the office of the below signed counsel, and answers the Complaint in foreclosure as follows: 1. Admitted on information and belief. 2. Denied. The Defendant's correct mailing address is 2026 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011 for purposes of service. 3. Admitted. 4. Admitted on information and belief. 5. Admitted. Second numbered Paragraph 5. Admitted in part, denied in part. It is admitted that the failure of the Mortgagor to pay the mortgage when due constitutes an event of default as defined by the document which speaks for itself. It is denied the implication that the Mortgagor/Defendant is in default or has failed to abide by the terms of the mortgage as inferred by the second numbered Paragraph 5. 6. Denied. It is specifically denied that the Mortgagor/Defendant failed to tender payments under the Mortgage and Note when due. By way of further answer, the Mortgagee/Plaintiff misapplied certain payments in 2007 causing their records to be incorrect. A copy of the Defendant's correspondence explaining this event is attached hereto as Exhibit A. 7. Admitted in part, denied in part. It is admitted that the Mortgage provides for acceleration in the event of default; the document speaks for itself. It is denied the implication that the Defendant has defaulted allowing acceleration of the Mortgage. 8. It is denied that the sums currently due under the mortgage are, a. Unpaid principal balance: $131,960.99 b. Accrued Interest through March 26, 2008 is $2,008.19 c. Late charges through March 26, 2008 are $6,949.68 d. Attorney fees due are: $5,000.00 or that the total is $145,918.86 By way of further answer, Plaintiff has not applied all mortgage payments tendered, or has misapplied payments already received to reflect an incorrect statement of the account. 9. Denied that Notice of the availability of mortgage assistance under the Homeowners Emergency Mortgage Disclosure Act of 1993 (Act 91) is not required. Strict proof is demanded at the time of trial. 10. Denied that Notice of Intent to foreclose under Section 403 of Act 6 is not required. Strict proof is demanded at the time of trial. WHEREFORE, Defendant prays this Honorable Court to DISMISS the action in Mortgage Foreclosure. Camp Hill, PA 17011 717-731-9502 mst@mtravislaw com Attorney for Defendant Date: s 1-??/? 3904 Trindle Road Wachovia Bank, National Association ) Plaintiff, ) vs. ) Frederick W. Zeplin ) Defendant } IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Case No.: No. 08-2240 CIVIL ACTION LAW MORTGAGE FORECLOSURE VERIFICATION The statements made in this Answer are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. Sect. 4904 relating to unsworn falsification to authorities. Frederick W. in Date-. ????, Wachovia Bank, National Association Plaintiff, vs. Frederick W. Zeplin Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Case No.: No. 08-2240 CIVIL ACTION LAW MORTGAGE FORECLOSURE CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served on below persons by first class U.S. Mail, postage prepaid: Eugene E. Pepinsky, Jr., Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street PO Box 11963 Harrisburg, PA 17108-1963 ge?iV Camp Hill, PA 17011 Attorney for Defendant (? t^.i !,?' c.? ?? ? % ?. ' ? k:. ' ''- -y :? ? i 7? ?. ?.. ? (\ . . ; _# ? `w '+ C.': 'aJ Opp, Michael S. Travis ID No. 77399 3904 Trindle Road Camp HIII, PA 17011 717-731-9502 mst@ mtravislaw Attorney for Defendant Wachovia Bank, National Association Plaintiff, VS. Frederick W. Zeplin Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Case No.: No. 08-2240 CIVIL ACTION LAW MORTGAGE FORECLOSURE ANSWER TO MORTGAGE FORECLOSURE ERRATA SHEET Attached hereto please find Exhibit A inadve mitted from the answer originally filed. , , M' eI ravis 3904 Trindle Road Camp Hill, PA 17011 717-731-9502 mst@mtravislaw.com Attorney for Defendant Date: r 1 //yl V'' March 11,2008 Fred W. Zeplin 15 Cumberland Road Lemoyne, PA 17043 Keeffer Wood Allen and Rahl, LLP Attention Eugene E Peinsky Jr, Dear Sir, This is to advise you that the loan I have with Wachovia is not in default. The payment I recently paid was for January 2008. Februarys' payment will be made next week, Just so you know I made advance payments in April June July. After a lot of confusion on Wachovias' part they straighten it out and agreed my payment for January was approximately $1900.00. After checking all the payments 2 things have come to light there is actually and extra payment made in January 2007. Which then takes that payment for February 2008, also on her calculations and adjustments, I need to see how she calculated the credits and the interest for the approximately $1900.00 payment. After receiving all that information and reviewing it I will hire an attorney if necessary to defend myself. Based on my records when I pay this next payment I am current. Sincerely, red eplin 6-?t 4- r" Wachovia Bank, National Association Plaintiff, vs. Frederick W. Zeplin Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Case No.: No. 08-2240 CIVIL ACTION LAW 1 MORTGAGE FORECLOSURE CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served on the below persons by first class U.S. Mail, postage prepaid: Eugene E. Pepinsky, Jr., Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street PO Box 11963 Harrisburg, PA 17108-1963 Date: G, //r Attorney for Defendant J%7V1t 1 111 Iu1G I IVCIu Camp Hill, PA 17011 N P R - s r? rr. M n J ^Yy pyy ?• 'w.J ?? ??.AJJjjA cry W f .46 WACHOVIA BANK, NATIONAL ASSOCIATION) IN THE COURT OF COMMON Plaintiff ) PLEAS OF CUMBERLAND VS. ) COUNTY, PENNSYVLANIA FREDERICK W. ZEPLIN ) Case No. 08-2240 Defendant ) Civil Action Law Mortgage Foreclosure NOTICE OF SERVICE OF DEFENDANT'S FIRST SET OF REQUEST FOR PRODUCTION UPON PLAINTIFF To the Prothonotary: Please take notice that on this date, Defendant rick W. Zeplin has served his first set of his Request for Productio ments upon the Plaintiff pursuant to Pa.R.C.P. 4009. ael S. ravis 3904 Trindle Road Camp Hill, PA 17011 717-731-9502 mst@mtravislaw.com Attorney for Defenant ?ln /J-1 ... WACHOVIA BANK, NATIONAL ASSOCIATION) IN THE COURT OF COMMON Plaintiff ) PLEAS OF CUMBERLAND vs. ) COUNTY, PENNSYVLANIA FREDERICK W. ZEPLIN ) Case No. 08-2240 Defendant ) Civil Action Law Mortgage Foreclosure CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served on the below persons by first class U.S. Mail, postage prepaid: Eugene E. Pepinsky, Jr., Esquire Keefer Wood Allen & Rahal, LLP 210 Walnut Street PO Box 11963 Harrisburg, PA 17108-1963 ? /J- 7 1,Y Attorney for Defendant 3904 Trindle Road Camp Hill, PA 17011 z: C ) CD i w Mart ? + ? ?.. ? ?? cz+ ? KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 WACHOVIA BANK, NATIONAL ASSOCIATION Plaintiff V. FREDERICK W. ZEPLIN Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-224DCIVIL TERM MORTGAGE FORECLOSURE PRAECIPE Please mark this action discontinued, without prejudice. Date: August 13, 2008 KEEFER WOOD ALLEN & RAHAL, LLP By: Eugene E. Pepinsky, Jr., Esquire Attorney I . D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff c-,?-ct C`? o 1 1 ? ,,, ? ,?