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HomeMy WebLinkAbout08-2401PHELAN 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 175881 WELLS FARGO BANK, N.A. 3476 STATEVIEW BOULEVARD FORT MILL, SC 29715 Plaintiff V. DAVID K. SCOTT 161 KUTZ ROAD CARLISLE, PA 17013 Defendant ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. D8 - x401 Oiyi( (errs CUMBERLAND COUNTY CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 175881 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 #: 175881 IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 et seq. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS File #: 175881 COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL ESTATE. File #: 175881 1. Plaintiff is WELLS FARGO BANK, N.A. 3476 STATEVIEW BOULEVARD FORT MILL, SC 29715 2. The name(s) and last known address(es) of the Defendant(s) are: DAVID K. SCOTT 161 KUTZ ROAD CARLISLE, PA 17013 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 06/13/2003 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to WASHINGTON MUTUAL BANK, FA which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No. 1817, Page 2527. By Assignment of Mortgage recorded 01/12/2007 the mortgage was assigned to PLAINTIFF which Assignment is recorded in Assignment of Mortgage Book No. 0733, Page 2642. 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 12/01/2007 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. File #: 175881 6. The following amounts are due on the mortgage: Principal Balance $113,513.34 Interest $2,203.50 11/01/2007 through 04/09/2008 Attorney's Fees $1,250.00 Cumulative Late Charges $81.96 06/13/2003 to 04/09/2008 Cost of Suit and Title Search 550.00 Subtotal $117,598.80 Escrow Credit $0.00 Deficit $0.00 Subtotal 0.00 TOTAL $117,598.80 7 8 If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. Plaintiff is not seeking a judgment of personal liability (or an in personam judgment) against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. File #: 175881 9. This action does not come under Act 6 of 1974 because the original mortgage amount exceeds $50,000. 10. This action does not come under Act 91 of 1983 because the mortgage is FHA-insured. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $117,598.80, together with interest from 04/09/2008 at the rate of $16.95 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 LAWRENCE T. PHELAN, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE DANIEL G. SCHMIEG, ESQUIRE MICHELE M. BRADFORD, ESQUIRE JUDITH T. ROMANO, ESQUIRE SHEETAL R. SHAH-JANI, ESQUIRE JENINE R. DAVEY, ESQUIRE MICHAEL E. CARLETON, ESQUIRE VIVEK SRIVASTAVA, ESQUIRE JAY B. JONES, ESQUIRE PETER MULCAHY, ESQUIRE ANDREW SPIVACK, ESQUIRE Attorneys for Plaintiff File #: 175881 e LEGAL DESCRIPTION ALL THAT CERTAIN tract of land situate in Penn Township, Cumberland County, Pennsylvania, known as Lot No. 9 on a Subdivision Plan for Josephine L. Bream dated October 17, 1991 and recorded in the Recorder of Deeds Office in and for Cumberland County in Plan Book 63, Page 148, being more particularly bounded and described as follows, to wit: BEGINNING at a point at an iron pin at the corner of Lot 8 and a 50 foot wide private right of way, North 54 degrees 37 minutes 20 seconds East, a distance of 253.37 feet to an iron pin; thence continuing along the aforesaid 50 foot wide private right of way, South 79 degrees 22 minutes 47 seconds East, a distance of 153.48 feet; thence along a curve to the left having a radius of 50 feet and a length of 88.64 feet to an iron pin; thence continuing along lands formerly of Grantor, South 30 degrees 56 minutes 40 seconds East, a distance of 135.72 feet to an iron pin; thence along lands now or formerly of Paul S. Kann, South 69 degrees 14 minutes West, a distance of 459.00 feet to an iron pin; thence continuing along Lot No. 8, North 20 degrees 46 minutes West, a distance of 200.04 feet to an iron pin, the point and place of beginning. PREMISES BEING: 161 KUTZ ROAD PARCEL NO: 31-10-0624-055 File #: 175981 CONTAINING 2.231 acres, more or less, and being all of Lot No. 9 as shown on a Subdivision for Josephine L. Bream dated October 17, 1991. BEING the same premises which Cosmo J. Zizzi, Sr. and Refugio T. Zizzi, husband and wife, by their attorney in fact, Anthony F. Zizzi, by Deed dated January 20, 1993, which Deed is recorded in the Office of the Recorder of Deeds in and for Cumberland County in deed Book 36-C, Page 450 granted and conveyed to Dominic C. Goodhart and Tammy S. Goodhart, husband and wife, Grantors herein. File #: 175881 A f 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. Attorney for Plaintiff DATE: 7 (??P- Q 4 r .. -9 0 SHERIFF'S RETURN - REGULAR CASE NO: 2008-02401 P COMMONWEALTH OF PENNSYLVANIA; COUNTY OF CUMBERLAND WELLS FARGO BANK NA VS SCOTT DAVID K SHAWN HARRISON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon SCOTT DAVID K the DEFENDANT , at 1915:00 HOURS, on the 18th day of April 2008 at 161 KUTZ ROAD CARLISLE, PA 17013 DAVID SCOTT 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 y/.2 Plo i 18.00 9.00 .00 10.00 .00 37.00 Sworn and Subscibed to before me this day So Answers: R. Thomas Kline 04/23/2008 PHELAN HALL SC MIEG 1 By: De ty Sheriff of A. D.