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HomeMy WebLinkAbout04-1089LARRY E. FOOTE, SR., and MARY S. FOOTE, husband and wife, and H. DAVID MILLER, JR., and NORMA J. MILLER, husband and wife, Plaintiffs, ROBERT A. SIMMONS, and TAMMY M. HALVERSON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004 - ?,o~ CIVIL TERM ACTION IN EJECTMENT NOTICE TO DEFEND 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, order 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 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 HND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 717-249-3166 1-800-990-9108 Americans with Disabilities Act of 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. LARRY E. FOOTE, SR., and MARY S. FOOTE, husband and wife, and H. DAVID M/LLER, JR., and NORMA J. MILLER, husband and wife, Plaintiffs, ROBERT A. SIMMONS, and TAMMY Mo HALVERSON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004 - CIVIL TERM ACTION IN EJECTMENT COMPLAINT AND NOW, this /~day of March 2004, comes the Plaintiffs, LARRY E. FOOTE, SR. and MARY S. FOOTE, husband and wife, and H. DAVID MILLER, JR. and NORMA J. MILLER, husband and wife, by and through their attorneys, Irwin & McKnight, and make thc following Complaint against the Defendants, ROBERT A. SIMMONS and TAMMY M. HALVERSON, averring as follows: 1. Plaintiffs Larry E. Foote, Sr. and Mary S. Foote, husband and wife, and Plaintiffs H. David Miller, Jr., and Norma I. Miller (collectively the "Plaintiffs") are all adult individuals residing in Cumberland County, Pennsylvania 17013. 2. Defendants Robert A. Simmons and Tammy M. Halverson (collectively the "Defendants") are both adult individuals residing at 752 Shippensburg Road, Newville, Cumberland County, Pennsylvania 17241. 3. Plaintiffs are the owners of certain property situate in North Newton Township, Cumberland County, Pennsylvania by Deed dated September 27, 1989, and recorded in the Office of the Recorder of Deeds in and for Cumberland County in Deed Book "E," Volume 34, Page 372, which was subdivided in accordance with that Subdivision Plan for Larry E. Foote, Sr., and H. David Miller, Jr. as recorded in Cumberland County Plan Book 73, Page 147B. 4. Defendants and Plaintiffs entered into an Agreement of Sale (hereinafter the "Agreement") on or about November 16, 2000, in order for Defendants to purchase three (3) lots designated as Lots No. 33, 28, and 1 on the Subdivision Plan referenced above which lots are specifically described in the Agreement and are now known as 752 Shippensburg Road, Newville, North Newton Township, Cumberland County, Pennsylvania 17241 (hereinafter the "Property"). A tree and correct copy of the Agreement dated November 16, 2000, is attached hereto and incorporated herein as Exhibit "A." 5. In consideration for the sale and conveyance of the Property to the Defendants, they were to pay the Plaintiffs the principal sum of One Hundred Fifty Thousand ($150,000.00) Dollars. 6. The purchase price was to be paid as follows: Eight Thousand ($8,000.00) Dollars upon execution of the Agreement, and the balance of One Hundred Forty-Two Thousand ($142,000.00) Dollars in monthly installments of One Thousand Ninety-Five and 33/100 Dollars ($1,095.33) due on the 16t~ of each month beginning on December 16, 2000, with a per annum interest rate of Nine percent (9%) applied to the balance of the principal. 7. The last semi-regular monthly payment received by the Plaintiffs was on July 16, 2003 and was in the amount of One Thousand Ninety-Five and 33/100 Dollars ($1,095.33). 8. Defendants have made only several sporadic payments since that date, with at least one check from Defendants dated January 16, 2004 being returned because of insufficient funds in their account. 9. Due to these payment irregularities, the Defendants' last payment leaves a principal balance owing to Plaintiffs of $140,830.34. 10. Defendants are in default on the Agreement because they have failed to make the required regular monthly payments on or before the 16th of each month. 11. Interest is due on the unpaid balance according to the terms of the Agreement attached as Exhibit "A" at Nine percent (9%) per annum. As of September 17, 2003, to the date of this Complaint, interest of $6,146.38 is due with a per diem rate thereafter of $36.24. 12. Paragraph 2 of the Agreement attached as Exhibit "A" also obligates Defendants to pay a five percent (5%) late charge for each payment received after the fifteenth day of each month. To date, Defendants owe late charges of $328.62. 13. In addition, Defendants have failed to make the required tax payments pursuant to Paragraph 4 of the Agreement attached hereto as Exhibit "A." 14. To date, Plaintiffs have paid 2003-04 School Taxes and 2004 CountyfFownshlp Taxes for each of the three lots, for a total amount due for reimbursement by Defendants of $2,011.20. 15. Defendants are in default of their obligations as purchasers under the terms of the Agreement for failure to pay Plaintiffs, when due, the monthly installment amounts, the outstanding principal balance, the interest outstanding and accruing, the late charges outstanding and accruing, and the delinquent taxes. 16. Pursuant to Paragraph 1! of the Agreement, in the event of a breach of the Agreement by the Defendants, they are obligated to pay Plaintiffs' attorney fees of ten percent (10%) of the total of the unpaid amounts. 17. The attorney's fees set forth above are reasonable and in conformity with the Agreement and Pennsylvania law. 18. Plaintiffs, by Act 91/6 Notices sent on October 29, 2003, notified Defendants of their default under the terms of the Agreement and demanded that Defendant cure the default within thirty (30) days of the Notices, which also contained the required information regarding cure and foreclosure. A tree and correct copy of such Notices and the certified mail, return receipts, and certificates of mailing are attached hereto and incorporated herein as Exhibit "B." 19. As of the date hereof, Defendants have failed and refused to cure their default, despite being provided numerous opportunities to do so by Plaintiffs. 20. Plaintiffs have exercised their option under the Agreement to terminate the Agreement without further notice to Defendants. 21. The following amounts are currently due to Plaintiffs on the mortgage: Principal Balance: $140,830.34 Interest as of Mareh 12,2004 $ 6,146.38 Late fee of 5% to date $ 328.62 Delinquent Taxes to date for 2003 and 2004 $ 2,011.20 Attorney Fees (10%) of unpaid amount per Agreement $ 14,931.65 TOTAL due Plaintiffs as of March 12, 2004 $164,248.19 22. As of the date of the filing of this Complaint, Defendants continue to occupy the Property identified herein. WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against Defendants, Robert A. Simmons and Tarnmy M. Halverson, in the amount specified above together with continuing interest, fees and costs, and grant to Plaintiffs possession of the property known and numbered as 752 Shippensburg Road, Newville, North Newton Township, Cumberland County, Pennsylvania 17241, together with such other and further relief as this Court shall deem just. Date: March 12, 2004 Respectfully Submitted, IRWIN & McKNIGHT By: Supreme Court ID No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 717-249-2353 VERIFICATION The foregoing document is based upon information which has been gathered by our counsel and ourselves in the preparation of this action. We have read the statements made in this document and they are true and con'ect to the best of our knowledge, information and belief. We understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. NORMA J. MILJFER Date: l~arch 12, 200~ VERIFICATION The foregoing document is based upon information which has been gathered by our counsel and ourselves in the preparation of this action. We have read the statements made in this document and they are tree and correct to the best of our knowledge, information and belief. We understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: March 12, 2004 EXHIBIT "A" AGREEMENT OF SALE ARTICLES OF AGREEMENT, made this 16th dayofNovember, 2000, between LARRY E. FOOTE, SR. and MARY S. FOOTE, husband and wife, and H. DAVID MILLER, JR. and NORMA J. MILLER, husband and wife, all of Cumberland County, Pennsylvania, hereinafter (whether singular or plural) called "SELLER", 7-: ROBERT B. SIMMONS and TAMMY M. HALVERSON, of 109 High Mountain Road, Shippensburg, PA 17257, hereinafter (whether singular or plural) called "BUYER." WITNESSETH: That the parties hereto, for the consideration hereinafter described, intending to be legally bound hereby, agree as follows: 1. Sale and Purchase. SELLER, for the consideration hereinafter mentioned, agrees to sell and convey unto the BUYER, their heirs and assigns, and BUYER agrees to purchase and ? accept, all that certain tract of land with the improvements thereon erected, more particularly described pursuant to Exhibit "A", attached hereto and incorporated herein by reference thereto. 2. Purchase Price. In consideration whereo f, the said BUYER agrees to pay to the said SELLER therefor, the sum of ONE HUNDRED FIFTY THOUSAND ($150,000.001 Dollars, as follows: Eight Thousand ($8,000.001 Dollars upon the execution of t,}fis Agreement of Sale, the receipt whereof is hereby acknowledged by the SELLER, and the balance of One Hundred and Forty- Two Thousand ($142,000.00/ Dollars in monthly installments of One Thousand Ninety-Five and 33/I00 ($1,095.33) Dollars, sakt monthly installments to be applied first to interest at the rate of Nine (9%) percent per annum on the unpaid balance of principal, and the remaining portion of each such installment to reduction of principal, said monthly installments to be paid on or before the 16th day of each month, beginning December 16, 2000. A Five (5%) percent late charge shall be added to each payment received after fifteen (15) calendar days from the due date. Said monthly payments aforesaid shall continue for Five (5) years from the date hereof, at which time the full unpaid principal, together with interest thereon, shall be paid in full. 3, Prepayment. BUYER shall have the privilege of paying as much more than the required monthly installment of principal and interest as they desire, and nothing contained in this Agreement shall be construed to Ih'nit them to said amount. 4. Taxes, Insurance, Assessments, Repairs and Charges. In addition to the said monthly installments on account of purchase price and interest thereon, said BUYER agrees to pay the taxes and municipal assessments, utility charges (if any), make all .necessary repairs to the premises, and keep in force not less than Three Hundred Thousand ($300,000.00) Dollars 0f liability insurance with extended coverage, with loss payable to the partie~ hereto as their interests may appear. 5. Place of Payment. All payments shall be made to SELLER at such address as said SELLER shall supply to said BUYER. 6. Possession. It is also agreed between the parties hereto that possession of said premises shall be delivered to said BUYER on the 16th day of November, 2000, and that said BUYER shall be entitled to receive rents, issues and profits therefrom from said date of delivery of possession, subject to the conditions set forth herein. BUYER has knspected the property, including the improvements thereon, immediately prior to signing this Agreement, and accepts said property in its present condition. 7. Alterations. BUYER agrees not to make any substantial alteration of the condition of the premises, or of the buildings thereon erected, without £n-st securing the written consent and approval of the SELLER. 8. Title. Upon compliance with the foregoing terms and conditions and upon payment of the said purchase price in full by the said BUYER, the said SELLER will, at his own proper cost and charge, make, execute and deliver to BUYER a good and sufficient Deed for the proper conveying and assuring of the said premises, in fee simple, free from all encumbrances, dower and right of dower, subject only to easements and building and use restrictions and conditions visible or of record, such conveyance to contain the usual covenants o fspecial warrantyand otherwise insurable by a licensed title insurance company at regular rates, without exception. 9. Tax Proration and Transfer Taxes. Taxes for the current year shall be prorated between the parties hereto using the fiscal years of the taxing authorities as the basis, and, November 16, 2000 ac prorating date. When legal title is taken by BUYER, SELLER shah pay one-half (1/2) of the state and local transfer taxes then in effect up to a maximum of Fifteen Hundred ($1,500.00) Dollars, and BUYER shall pay the remainder. If this property is conveyed to a third party at the request cf BUYER, then all transfer taxes on such conveyance shah be paid by such third party and the BUYER, as they may agree, and none shall be paid by SELLER. 10. SELLER's Right to Encumber. SELLER reserves the right presently or hereafter to mortgage or otherwise encumber said premises, providing the principal amount of said mortgage or ¢~lcmnbrance cities not exceed the principal balance clue u~cler this .Agrecmcm. Said Cloture liens, mortgages or encumbrances shall be satisfied by the SELLER prior to the time of final settlement. 1 I. Breach by Purchaser; Remedies of SELLER. In the event BUYER shall fail to make said monthly payments as aforesaid for the space of thirty (30) days after the same shall have become due and payable by the terms hereof, or ifa breach of any of the other foregoing conditions be made by the BUYER and not cured within ten (I 0) days of receipt of written notice from SELLER of said breach, SELLER, at his option, may: Declare a forfeiture of BUYER's rights hereunder and cancellation of this Agreement. On such election, all right, title and interest of BUYER hereunder shall cease and determine, and all payments theretofore made by BUYER shal/ be retained by SELLER as liquidated damages and as rental for the use and occupancy of the property, and, in such event, the Prothonotary or any attorney of any Court of Record of Cumberland County is hereby authorized to appear for and confess judgment in an am/cable action of ejectment against the said BUYER, his heirs, assigns, executors, administrators or lessees, and in favor of the SELLER, his heirs, assigns, admirfistrators and executors, for the premises herein described, and to direct the immediate issuing of Writ of Possession with Writ of Execution for costs, including an attorney's fee of ten (10%) percent o'f the unpaid balance of the purchase price, without notice and without asking leave of Court; In lieu of declaring a forfeiture, accelerate and confess judgment, or accelerate and bring an action for the balance of the purchase price remaining due, or for any other relief available in law or equity, including suit to recover any payment or payments made by SELLER and repayable by BUYER hereunder, it being stipulated and agreed that such obl/gation to repay is a separate and independent covenant of BUYER hereunder. No action to recover any payment or payments so made by SELLER shall constitute a waiver by SELLER of his right to proceed otherwise with respect to any subsequent default. BUYER hereby authorizes any Prothonotary or attorney to appear for and confess judgment against the BUYER and in favor of the SELLER for the entire onpaid balance of the purchase price, together ,,vith costs, interest, insurance payments, etc.. and with ten (10%) percent added as an attorney's fee. -4- 12, No Waiver. Acceptance by SELLER of any of the aforesaid monthly payments after the same shall have become past due and in default, or any fai/ure to enforce any of the rights herein reserved to the SELLER, or any of the penalties, forfeitures, damages or conditions herein contained, shal/not in any wise be considered a waiver of the right to enforce the same at any time, without notice whatsoever, and any attempt to collect the amount due by one proceeding shall not be considered a waiver of the right to enforce any of the other proceedings herein contained, but all of the rights of the SELLER and all forfeitures, penalties, damages and conditions may be enforced, together or successively, at the option of SELLER. 13. Amendment. No amendment or modification of this Agreement shall be valid unless the same shall bein writing and signed by both parties. 14. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior written or oral agreements between them respecting the within subject matter. There are no warranties, representations, agreements, arrangements or understandings, oral or written, between and among the parties hereto relating to the subject matter of this Agreement which are not fully expressed herein. 15. Assignment. The interest of the BUYER in this Agreement shall not be assignable, by sale, assignment, lease, subleasing or otherwise, in whole or in part, without the prior writte:~ consent and approval of SELLER, a:~d if such assignment is attempted, all rights and remedies of the SELLER set forth herein, or which the SELLER might otherwise have, shall hnmediately accrue to the SELLER. Transfer of title by Will, survivorship or by descent shall not be regarded as an 16. appropriate. 17. the essence. 18. assignment requiring the consent and approval of SELLER. SELLER agrees not to unreasonably withhold a requested consent. Recording. This Agreement may be filed of record in any publ/c office, as Time of the Essence. It is the agreement of the parties hereto that time shall be of Binding Effect. This Agreement is to extend to and be binding upon the heirs, successors, executors, administrators and assigns of the parties hereto. IN WITNESS WHEREOF, the parties hereto have set their hands and seals, intending to be legally bound,, on the day and year first above written. WITNESS: Norma J. M~lleio Robert B. Simmons Tam my M:~[lalv~. rs~m COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS. On tb. Jis, the [ ~'J'f" day of ""/by ~ ~-,c6c~.,c, ,2000, before me, the undersigned officer, personally appeared LARRY E. FOOTE, SR. and MARY S. FOOTE, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. -- Notary PubLic ,/ NOTARIAL SEAL CORRINE L. MYERS, Notary Public Carlisle Boro. CumberlandOoun~y ' _.My,~,__C._om~i¥ic__%Ex~p!re~; May 27. 2003 (SEAL) COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF CUMBERLAND On this, the [L¢''~°' day of [~..C-~,L~-,~J,~C.~, , 2000, before me, the undersigned officer, personally appeared H. DAVID MILLER, JR. and NORMA J. MILLER, known to me (or satisfactorily proven) to be the persons whose names aze subscribed to the within instrument, and acknowledged that they executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. -7- Notary Public -7 (SEAL) ; . C~.hs,e Bcr,~ C:~;nl0~,r and0 --~ ..... !¢ r% COMMONWEALTH OF PENNSYLVANIA ) : SS. COUNTY OF CUMBERLAND ) On this, the [ ~ ,2f~- day of ~]T. tq~c4. ~l~e~ , 2000, Lefore me, the undersigned officer, personally appeared ROBERT B. SIMMONS and TAMMY M. HALVERSON, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public (SEAL) NOTARIAL SEAL CCC~R[N[L. MYERS, ~o~aot ,~ rlis~e uoro. CumberlandCourW My Co~_~.~?~.~Xp~res May 27, 2003 EXHIBFF "A" ALL THOSE CERTAIN tracts of land situate in North Newton Township, Cumberland County, Pennsylvania, more particularly bounded and described pursuant to a final Subdivision Plan for Larry E. Foote, Sr. and H. David Miller, Jr., as recorded in Cumberland County Plan Book 73, Page 147B, as follows: TRACT NO. 1: BEGINNING at a point in the Newville Road, SR-0533, at the southeast corner of Lot No. 29 as shown on the above described Subdivision Plan; thence within said Newville Road, South 32 degrees 42 minutes 43 seconds West, 51.09 feet to a point in said road at the northeast corner of Lot No. 30 as shown on said Plan; thence by Lot No: 30, North 45 degrees 24 minutes 35 seconds West, 613.13 feet to a point at the northwest corner of Lot No, 30; thence continuing by Lot No. 30 and by Lot No. 3 i, South 32 degrees 42 minutes 43 seconds West, 617.26 feet to a point at corner common to Lot No. 31 and Lot No. 32; thence by Lot No. 32, South 56 degrees 45 minutes 00 seconds West, 212.33 feet to a point in line of land now or formerly of Leroy E. Showaker; thence by said land, North 36 degrees 30 minutes 00 seconds West, 545.82 feet to a point in line of said land at corner of Lot No. 1 as shown on the above described Subdivision Plan; thence by Lot No. !, North 37 degrees 29 minutes 47 seconds East, 913.36 feet to a point being the common comer of Lot No. 9 as shown on Subdivision Plan for the Grantors recorded in Cumberland County Plan Book 63, Page 19, and Lots Nos. 1, 28 and the within Lot as shown on the first abovementioned Subdivision Plan; thence by Lots Nos. 9, 8, 7, and 6 as shown on the Subdivision Plan for the Grantors recorded in Cumberland County Plan Book 63, Page 19, South 52 degrees 30 minutes 13 seconds East, 522.42 feet to a point at the northwest corner of Lot No. 29 as shown on the first abovementioned Subdivision Plan; thence by Lot No. 29, South 32 degrees 42 minutes 43 seconds West, 198.06 feet to a point; thence continuing by Lot No. 29, South 45 degrees 24 minutes 35 seconds East, 613.13 feet to a point in the Newville Road, the point and place of BEGINNING. CONTAINING 13.44 gross acres and being designated Lot No. 33 as shown on the first above described Subdivision Plan. UNDER AND SUBJECT, to a 20 feet wide drainage easement traversing said Lot as more particularly depicted on said Plan. UNDER AND SUBJECT, at all times hereafter, unto the owners of Lots Nos. 29 and 30, and their heirs and assigns, a perpetual easement, in corrunon with the buyers herein, for the full and free right and liberty for ingress, egress, regress, and access to and from Newville Road (SR 0533) over, across and through.the 50 feet wide access drive depicted on the above described Plan; subject, however, to payme~t by the buyers of the proportionate expenses of maintenance of the access area. its vehicular cartway, and any common drainage facilities, to include mowing and snow and ice removal. These expenses shall be prorated and allocated according to the linear distance of the access area used by the buyers in common usage with the owners of both Lots Nos. 33 and 30 (which allocation shall be one-thkd to each Lot), and to the linear distance used in common usage with the owners of either lot (which allocation shall be one-half to each Lot), as the case may be. By this deed, the sellers assume no obligation for the payment of any of such expenses, which expenses shall be borne solely by the users of the access area. TRACT NO. 2: BEGINNING at a point in Nealy Road, Township Road T-353, at corner of Lot No. I as shown on the above described Subdivision Plan; thence within Nealy Road, South 17 degrees 37 minutes 43 seconds East, 86.94 feet to a point; thence continuing within said road, South 52 degrees 30 minutes 13 seconds East, 499.04 feet to a point in line of land now or formerly of Mark J. and Mary A. Brehm (Lot No. 9 as shown on Subdivision Plan for the Grantors recorded in Cumberland County Plan Book 63, Page 19); thence by said land, South 37 degrees 29 minutes 47 seconds West, 585.00 feet to a point being the common corner of said Brehm land, and Lots Nos. 33, 1, and the witkin Lot as shown on the first abovementioned Subdivision Plan; thence by Lot No. 1, South 52 degrees 30 minutes 13 seconds East, 575.74 feet to a point in l/ne of Lot No. 1 (labeled on said Plan as "50' private access for Lot no. 1 "); thence by Lot No. 1, North 36 degrees 04 minutes 53 seconds East,.83.25 feet to a point in l/ne of said Lot; thence continuing by said Lot North 38 degrees 16 minutes 03 seconds East, 551.54 feet to a point in Nealy Road, the point and place of BEGINNING. CONTAINING 7.76 gross acres and being designated Lot No. 28 as shown on the first above described Subdivision Plan. UNDER AND SUBJECT, to a 20 feet wide drainage easement traversing said Lot as more particularly depicted on said Plan. TRACT NO. 3: BEGINNING at a point in Nealy Road, Township Road T-353, at the Northwest corner of Lot No. 28 as shown on the above described Subdivision Plan; thence by Lot No. 28, South 38 degrees 16 minutes 03 seconds West, 551.54 feet to a point; thence continuing by Lot No. 28, South 36 degrees 04 minutes 53 seconds West, 83.25 feet to a point; thence continuing by Lot No. 28, South 52 degrees 30 minutes 13 seconds East, 575.74 feet to point being the common comer of Lot No. 9 as shown on Subdivision Plan for the Grantors as recorded in Cumberland County Plan Book 63, Page 19, and Lots Nos. 33, 28 and the within Lot as shown on the first above described Subdivision Plan; thence by Lot No. 33, South 37 degrees 29 minutes 47 seconds West, 913.36 feet to a point in line of land now or formerly of Leroy E. Showaker; thence by said land, North 36 degrees 30 minutes 00 seconds West, 631.99 feet to a point being the common comer of the within Lot, said land now or formerly of Leroy E. Showaker, and land now or formerly of Cumberland Valley Rails to Trails Counsel, Inc.; thence by the latter land, North 36 degrees 04 minutes 53 seconds East, 822.32 feet to a point; thence contintfing by said land. North 38 degrees 16 minutes 03 seconds East, 586.35 feet to a point in Ne'My Road, the point and place of BEGINNING. CONTAINING l 2.43 gross acres and being designated Lot No. I as shown on the fkst above described Subdivision Plan. UNDER AND SUBJECT, to a 20 feet wide drainage easement traversing said Lot as more particu!mr!y depicted on said Plan. THE ABOVE THREE TRACTS are a portion of the same premises which Metro Lifestyle Ministries, Inc., et al., by their deed dated September 27, 1989, and recorded in the Office of the Recorder of Deeds in and for Cumberland County in Deed Book "E", Volume 34, Page 732, granted and conveyed unto Larry E. Foote, Sr. and H. David Miller, Jr., two of the grantors herein. THE ABOVE THREE TRACTS OF LAND ARE CONVEYED UNDER AND SUBJECT, NEVERTHELESS, to the following Building and Use Restrictions, which shall be binding on the within described tracts of land and on all land of the grantors fxonting on Newville Road, SR-0533, or Nealy Road, but shall not be deemed binding on other land of the grantors, with which building and use restrictions the within grantees, their heirs and assigns, by the acceptance of this deed, agree to comply: 1. No more than one single family private dwelling house, together with garage and accessory structures, shah be erected on any lot fronting on Nealy Road or the Newville Road. 2. No building on said Lot and no building hereafter erected thereon shall be erected as or for, or used or occupied as or for any purpose other than that of a single family private dwelling house. No lots or building structures shall be used for business, commercial, or manufacturing purposes. Mary S. Foote, who is the wife of Larry E. Foote, Sr. and Norma J. Miller, who is the wife of ri. David Miller, Jr., each join in the execution of this instrument for the purpose of indicating their consent to it, and for the purpose of convey/ng any interest which either of them may have in the above mentioned premises by virtue of their respective marriages to Larry E. Foote, Sr. and H. David Miller, Jr. EXHIBIT "B" FILE COPY ACT 91 / 6 NOTICE TAKE ACTION TO SAVE YOUR HOME FROM FORECLOSURE Date: October 29, 2003 To: Mr, Robert A. Simmons 752 Shippensburg Road Newville, PA 17241 Ms. Tammy M. Halverson 752 Shippensburg Road Newville, PA 17241 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 ENFORCEMENT OF A LIEN AGAINST PROPERTY. This is an official notice that the mortgaae on you[ home is in default and the lender intends to tbreclose. Specific information about the nature of the default is provided in the attached pa,oes. The HOMEOWNER'S MORTGAGE ASSISTANCE PROGRAM (HEMAP) MAY BE ABLE TO HELP TO SAVE YOUR HOME. This Notice explains how the prom:am works. To see if HEMAP can help, you must MEET WITH A CONSUMER CREDIT COUNSELING AGENCY WITHIN 30 DAYS OF THE DATE OF THIS NOTICE. Take this Notice with You ~vhen you meet the counseling agency: The name, address mad phone number of Consumer Credit Counselin~ Aaencies serving your County are listed at the end of this Notice. If you have any questions, you may cal the Pennsylvania Housing Finance Agency toll free at 1-800-342-2397. (Persons with imvaired hearin~ may call (717) 780-1869. This Notice contains important legal information. If you have any questions, representatives at the Consumer Credi, Counseling Agency may bc ao,e ,o help explain it. You may also want to contact an attorney in your area. The local bar association may be able to help you find a lawyer. LA NOTIFICACION EN AD JUNTO ES DE SUMA IMPORTANCIA, PUES AFECTA SU DERECHO A CONT1NUAR VIVIENDO EN SU CASA. SI NO COMPRENDE EL CONTENIDO DE ESTA NOTIFICACION OBTENGA UNA TRADUCCION INMEDITAMENTE LLAMANDO ESTA AGENCIA (PENNSYLVANIA HOUSING FINANCE AGENCY) SIN CARGOS AL NUMERO MENCIONADO ARRIBA. PUEDES SER ELEGIBLE PARA U~N PRESTAMO POR EL PROGRAMA LLAMADO "HOMEOWNERS EMERGENCY MORTGAGE ASSISTANCE PROGRAM" EL CUAL PUEDE SALVAR SU CASA DE LA FERDIDA DEL DERECHO A REDIMAR SU HI~OTECA. STATEMENTS OF POLICY Homeowner's Name(s): Property address: Loan / Account number: Original Lender: Current Lender / Servicer: Robert A. Simmons and Tammy M. Halverson 752 Shippensburg Road, Nexvville, PA 17241 Agreement of Sale dated November 16, 2000 Larry E. Foot, Sr. and Mary S. Foote, husband and wife and H. David Miller, Jr. and Norma J. Miller, husband and wife Larry E. Foot, Sr. and Mary S. Foote, husband and wife and H. David Miller, Jr. and Norma J. Miller, husband and wife HOMEOWNERS EMERGENCY MORTGAGE ASSISTANCE PROGRAM YOU MAY BE ELIGIBLE FOR FINANCIAL ASSISTANCE WHICH CAN SAVE YOUR HOME FROM FORECLOSURE AND HELP YOU MAKE FUTURE MORTGAGE PAYMENTS. IF YOU COMPLY WITH THE PROVISIONS OF THE HOMEOWNER'S EMERGENCY MORTGAGE ASSISTANCE ACT OF 1983 (THE "ACT"), YOU MAY BE ELIGIBLE FOR EMERGENCY MORTGAGE ASSISTANCE. ,, IF YOUR DEFAULT HAS BEEN CAUSED BY CIRCUMSTANCES BEYOND YOUR CONTROL, ,, 1F YOU HAVE A REASONABLE PROSPECT OF BEING ABLE TO PAY YOUR MORTGAGE PAYMENTS, AND · 1F YOU MEET OTHER ELIGiBILITY REQUIREMENTS ESTABLISHED BY THE PENNSYLVANIA HOUSING FINANCE AGENCY. TEMPORARY STAY OF FORECLOSURE - Under the Act, you are entitled to a temporary stay of foreclosure on your mortgage for thirty (30) days from the date of this Notice. During that time you must arrange and attend a face-to-face meeting with one of the consumer credit counseling agencies listed at the end of this Notice. THIS MEETING MUST OCCUR WITHIN THE NEXT THIRTY (30) DAYS. IT YOU DO NOT APPLY FOR EMERGENCY MORTGAGE ASSISTANCE, YOU ,MUST BRING YOUR MORTGAGE UP TO DATE. THE PART OF THIS NOTICE CALLED "HOW TO CURE YOUR MORTGAGE DEFAULT" EXPLAINS BOW TO BRING YOUR MORTGAGE UP TO DATE. CONSUMER CREDIT COUNSELING AGENCIES - If you meet with one of the consumer credit counselin~ agencies listed at the end of this Notice the lender may NOT take action a~oainst you for thirty (30) days after the date of this meeting. The names, addresses and telephone numbers of designated consumer credit counseling agencies for the County in which the property is located are set forth at the end of this Notice. It is only necessary to schedule one face-to-face meeting, Advise your lender immediately of your intentions. APPLICATION FOR MORTGAGE ASSISTANCE - Your mortgage is in a default for the reason set forth later in this Notice (see following pages tbr specific information about the nature of your default.) If you have tried and are unable to resolve this problem with the lender, you have the right to apply for financial assistance from the Homeowner's Emergency Mortgage Assistance Program. To do so, you must fill out, sign and file a completed Homeowner's Emergency Assistance Program Application with one of the designated consumer credit counseling agencies listed at the end of this Notice. Only 2 consumer credit counseling agencies have applications tbr the program and they will assist you in submitting a complete application to the Pennsylvania Housing Finance Agency. Your application MUST be filed or postmarked within thirty (30) days of your face-to-face meeting. YOU MUST FILE YOUR APPLICATION PROMPTLY. IF YOU FAIL TO DO SO OR IF YOU DO NOT FOLLOW THE OTHER TIME PERIODS SET FORTH IN THIS LETTER, FORECLOSURE MAY PROCEED AGAINST YOUR HOME IMMEDIATELY AND YOUR APPLICATION FOR MORTGAGE ASSISTANCE WILL BE DENIED. AGENCY ACTION - Available funds for emergency mortgage assistance are very limited. They will be disbursed by the Agency under the eligibility criteria established by the Act. The Pennsylvania Housing Finance Agency has sixty (60) days to make a decision ar2er it receives your application. During that time, no lbreclosure proceedings will be pursued against you if you have met the time requirements set forth above. You will be notified directly by the Pennsylvania Housing Finance Agency of its decision on your application. NOTE: IF YOU ARE CURRENTLY PROTECTED BY THE FILING OFA PETITION IN BANKRUPTCY, THE FOLLOWING PART OF THIS NOTICE IS FOR INFORMATION PURPOSE ONLY AND SHOULD NOT BE CONSIDERED AS AN ATTEMPT TO COLLECT THE DEBT. (If you have filed bankruptcy you can still apply for Emergency Mortgage Assistance) HOW TO CURE YOUR MORTGAGE DEFAULT (Brin~ it up to date) NATURE OF THE DEFAULT - The MORTGAGE debt held by the above lender on your property located at: 752 Shippensburg Road, Newville, Pennsylvania IS SERIOUSLY IN DEFAULT because: A. YOU HAVE NOT MADE MONTHLY MORTGAGE PAYMENTS for the fbllowing months and the following amounts are now past due: Start/End: August 1, 2003 through October 29, 2003 at $1,095.33 per month. Monthly Pa~vments Plus Late Charges Accrued $ 3,285.99 Delinquent School Taxes for 2003-2004: $1,647.82 Other $ 0.00 Attorney Fees 10% of unpaid amount per Agreement of Sale $ 493.38 Total amount to cure default $ 5,427.19, together with any and all accrued and accruing interest per the Agreement of Sale dated November 16, 2000. 13. YOU HAVE FAILED TO TAKE THE FOLLOWING ACTION (Do not use if not applicable): N/A HOW TO CURE THE DEFAULT - You may cure the default within THIRTY (30) DAYS of the date of this notice BY PAYING THE TOTAL AMOUNT PAST DUE TO THE LENDER, WHICH IS $5,427.19, PLUS ANY MORTGAGE PAYMENTS AND LATE CHARGES WHICH BECOME DUE DURiNG THE THIRTY (30) DAY PERIOD. Payments must be made either by cash, cashier's check, certified check or money order made payable and sent to: Irwin & McKnight, Attn: Douglas G. MilIer, Esquire, 60 West Pomfret Street, Carlisle, PA; Telephone: 717-249-2353. You can cure any other default by taking the following action within THI'RTY (30) DAYS of the date of this letter. IF YOU DO NOT CURE THE DEFAULT - If you do not cure the default within THIRTY (30) DAYS of the date of this Notice, the lender intends to exercise its rights to accelerate the mortua~e debt. This means the entire outstanding balance of this debt will be considered due immediately and you may lose the chance to pay the mortgage in monthly installments. If full payment of the total amount past due is not made within THIRTY (30) DAYS, the lender also intends to instruct its attorney to start legal action to foreclose upon your mortaaae property. 1F THE MORTGAGE iS FORECLOSED UPON - The Mortgage property will be sold by the Sheriff to pay off the mortgage debt. If the lender refers your case to its attorney, but you cure the delinquency before the lender begins legal proceedings against you, you will still be required to pay the reasonable attorney's fees that were actually incurred, up to $50.00. However, if legal proceedings are started against you, you will have to pay all reasonable attorney's fees actually incurred by the lender even if they exceed $50.00. Any attorney's fees will be added to the amount owed to thc lender, which may also include other reasonable costs. If you cure the default within the THIRTY (30) DAY period, you will not be required to pay attorney's fees. OTHER LENDER REMEDIES - The lender may also sue you personally for the unpaid principal balance and all other sums due under the mortgage. RIGHT TO CURE THE DEFAULT PRIOR TO SHERIFF'S SALE - If you have not cured the default within THIRTY (30) DAY period and foreclosure proceedings have begun, you still have the right to cure the default and prevent the sale at any time ulo to one hour before the Sheriff's Sale. You may do so by ~a¥in~o the total amount then past due, plus any late or other charges then due, reasonable attorney's fees and costs connected with the foreclosure sale and any other costs connected with the Sheriff's Sale as specified in writin~ by the lender and by performin~ any other requirements under the mortgage. Curing your default in the manner set forth in this notice will restore your mortgage to the same position as if you had never defaulted. EARLiEST POSSIBLE SHERIFF'S SALE DATE - It is estimated that the earliest date that such a Sheriff's Sale of the mortgage property could be held would be approximately SIX (6) MONTHS from the date of this notice. A notice of the actual date of the Sheriff's Sale will be sent to you before the sale. Of course, the amount needed to cure the default will increase the longer you wait. You may find out at any time exactly what the required payment or action will be by contacting the lender. HOW TO CONTACT THE LENDER: Irwin & McKnight, Attn: Douglas G. Miller, Esquire, 60 West Pomfret Street, Carlisle, PA; Telephone: 717-249-2353. EFFECT OF SHERIFF'S SALE - You should realize that a Sheriff's Sale will end your ownership of the mortgaged property and your right to occupy it. If you continue to live in the property at2er the Sheriff's Sale, a lawsuit to remove you and your furnishings and other belongings could be started by the lender at any time. ASSUMPTION OF MORTGAGE - You may or X may not (check one) sell or transfer your home to a buyer or transferee who will assume the mortgage debt, provided that all the outstanding payments, charges and attorney's fees and cost are paid prior to or at the sale and that the other requirements of the mortgage are satisfied. YOU MAY ALSO HAVE THE RIGHT: · TO SELL THE PROPERTY TO OBTAIN MONEY TO PAY OFF THE MORTGAGE DEBT OR TO BORROW MONEY FROM ANOTHER LENDING INSTITUTION TO PAY OFF THIS DEBT. · TO HAVE THIS DEFAULT CURED BY ANY THIRD PARTY ACTING ON YOUR BEHALF. · TO HAVE THE MORTGAGE RESTORED TO THE SAME POSITION AS IF NO DEFAULT HAD OCCURRED, IF YOU CURE THE DEFAULT, (HOWEVER, YOU DO NOT HAVE THIS RIGHT TO CURE YOUR DEFAULT MORE THAN THREE TIMES IN ANY CALENDAR YEAR.) · TO ASSERT THE NONEXISTENCE OF A DEFAULT IN ANY FORECLOSURE · PROCEEDING OR ANY OTHER LAWSUIT INSTITUTED UNDER THE MORTGAGE DOCUMENTS. · TO ASSERT ANY OTHER DEFENSE YOU BELIEVE YOU MAY. HAVE TO SUCH ACTION BY THE LENDER. · TO SEEK PROTECTION UNDER THE FEDERAL BANKRUPTCY LAW. CONSUMER CREDIT COUNSELING AGENCIES SERVING YOUR COUNTY IS ATTACHED. Very truly yours, , IRWIN & MCKNIGHT · cc: Foote & Miller P.O. Box 840 Carlisle, PA 17013 Mailed by 1*t Class mail / Certificate of Mailing and Certified Mail No.: 7002 0860 0000 1074 2601 7002 0860 0000 1074 2595 PENNSYLVANINA HOUSING FINANCE AGENCY HOMEOWNER'S EMERGENCY MORTGAGE ASSISTANCE PROGRAM CONSUMER CREDIT COUNSELING AGENCIES THE PENNSYLVANIA HOUSING FINANCE AGENCY CAN BE REACHED TOLL FREE AT 1 (800} 342 - 2397 CUMBERLAND COUNTY Consumer Credit Counseling Service of Western Pennsylvania, Inc. 2000 Linglestown Road Harrisburg, PA 17102 (717) 541-1757 Financial Services Unlimited 117 West 3~ Street Waynesi~oro, PA 17268 (717) 752-3285 Ur0an League of Metropolitan Harrisburg 25 N. Front Street Harrisburg, PA 17101 (717) 234-5925 FAX (717) 232-4985 YWCA of Carli~Ie 301 G Street Carlisle, PA 17(313 (717) 243-3818 FAX (717) 243-3948 · Complete items t, 2~ and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the mailpiece, or on the front if space permits. ~R. ROBERT A. $I~..4ONS ~c-/_,. SFIPPENSEU?G ROAD N5%~;ILLE, PA 17241 (Transfer from service )abe!) PS Form 381 1, August 2001 A. Signature '1'~ ~'"~-" "~"~'~ [] Addressee B Received by ( Pnnted Name) I(, Date of Delive~ry D. Is det~ve~ add.ss differerd from item 1 ? ~ Yes If YES, enter dei}ve~ address below: O No [] Registered Ji~ Return Receipt for Merchandise [] Insured Mail [] CO,D. __ 4. Restrc ed De very? (E~tra Fee) [~ Yes 7002 0860 0000 1074 2595 Domestic Return Receipt lOE595-OZ-M-1035 ' U.S. POSTAL SERVICE CERTIFICATE OF MAILING ' MAY BE USED FOR DOMESTIC AND iNTERNATIONAL MAIL, DOES NOT pROVIDE FOR ~NSURANCE-POSTMASTER Received From Lay Offices Ir~rin & WEst Pomfret Professional 60 West P~ret Street One piece of ordi~aw ~ail addressed 752 Shippensburg Road Neville, PA 17241 PS Form 3BlT. January 2001 ' · Complete items 1, 2, and 3. Aisc complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so th&t we c&n return the card to you. · Attach this card to the back of the mailpiece. or on the front if space permits. ~'Receivedby(Pdn~edNarne) - lC. OateofDelivery~, 3. Service Type ~1 Certified Mail E] Expres~ Mall [~ Registered ~ Return Receipt for Merchandise [~ Insured Mail O C,O.D. 4. Restricted Delivery? (Extra Fee) [~ Yes 2. Axlicte Number (Transfer from service label) PS Form 3811, August 2001 7002 0860 Domestic Rstum Receipt 0000 1074 2601 U.$, POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND iNTERNA~IO1qAL MAIL. DOES NOT PROVIDE FOR IN S U RANCE-POSq'MASTER Received From: · La~ O££ices Ir~ln & McKnigh£ }/est l'omtret ~rotessional Building Me. T~ ~. HALVERSON 752 SHIPPENSaURG ROAD NE~V~LLE, PA 1724! PS Form 3817. January 2001 LAW OFFICES SNELBAKER. BRENNEMAN & SPARE LARRY E. FOOTE, SR. and MARY S. FOOTE, husband and wife, and H. DAVID MILLER, JR., and NORMA J. MILLER, husband and wife, Plaintiffs ROBERT A. SIMMONS, and TAMMY M. HALVERSON, : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 2004-1089 CIVIL TERM : ACTION IN EJECTMENT NOTICE TO PLEAD TO: Larry E. Foote, Sr., Mary S. Foote, H. David Miller, Jr. and Norma J. Miller, Plaintiffs You are hereby notified that you have twenty (20) days in which to plead to the enclosed New Matter or a Default Judgment may be entered against you. Date: April 30, 2004 SNELBAKER, BRENNEMAN & SPARE, P. C. Keith O. Brenneman, Esquire 44 West Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants Tammy M. Halverson and Robert B. Simmons LAW OFFICES SNELBAKEr BRENNEMAN & SPARE LARRY E. FOOTE, SR. and MARY S. FOOTE, husband and wife, and H. DAVID MILLER, JR., and NORMA J. MILLER, husband and wife, Plaintiffs ROBERT A. SIMMONS, and TAMMY M. HALVERSON, : 1N THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 2013~4-1089 CIVIL TERM : ACTION IN EJECTMENT ANSWER WITH NEW MATTER Defendants Robert A. Simmons and Tammy M. Halverson, by their attorneys, Snelbaker, Brenneman & Spare, P. C., submit the following Answer with New Matter to Plaintiffs Complaint: ANSWER 1. Admitted upon information and beliefi 2. Admitted. 3. Denied. It is denied that Plaintiffs are the owners of the property identified in the Deed recorded in Cumberland County Deed Book "E", Volurne 34, Page 372. 4. Admitted in part; denied in part. It is admitted[ that Plaintiffs and Defendants entered into an Agreement of Sale (the "Agreement") on November 16, 2000 and that a copy of that Agreement is attached to Plaintiffs' Complaint as "Exhibit A". Plaintiffs' characterization of the content of a writing, which speaks for itself, in Paragraph 4 of the Complaint is denied. 5. Admitted in part; denied in part. It is admitted that Defendants agreed pursuant to the terms of the Agreement to pay a purchase price of $150,000.00. The remaining allegations of Paragraph 5 of the Complaint contain conclusions of law to which no response is required by Defendants pursuant to Pa.R.C.P. 1029(d). LAW OFFICES SNELBAKER, BRENNEMAN & SPARE 6. Admitted, with the qualification that the terms of the parties' Agreement, being in writing, speak for themselves. 7. Denied. It is denied Defendants made any "semi-regular" monthly payments or were required to. 8. Admitted in part; denied in part. It is admitted there has been sporadic payments by the Defendants. After reasonable investigation, Defendants are without sufficient information to form a belief as to the troth of the allegation that at least one check was returned because of insufficient funds; therefore, same is denied and strict proof thereof demanded. 9. Denied. After reasonable investigation, Defendants are without sufficient information to form a belief as to the troth of the allegations contained in Paragraph 9 of Plaintiffs' Complaint; therefore, same are deemed denied and strict proof thereof demanded. 10. Denied. Paragraph 10 of Plaintiffs' Complaint contains an unwarranted conclusion of law to which no response is required by Defendants pursuant to Pa.R.C.P. 1029(d). 11. Admitted in part; denied in part. It is admitted that interest accrues on the unpaid principal balance at a rate of 9% per annam. After reasonable investigation, Defendants are without sufficient information to form a belief as to the truth of the remaining allegations contained in Paragraph 11 of Plaintiffs' Complaint, therefore; same are deemed denied and strict proof thereof demanded. 12. Admitted in part; dffnied in part. It is admitted that the Agreement allows the assessment of a five percent (5 ~) late charge as alleged. After reasonable investigation, Defendants are without sufficient information to form a belief as to the truth of the remaining allegations contained in Paragraph 12 of Plaintiffs' Complaint, therefore; same are deemed tenied and strict proof thereof demanded. -2- LAW OFFICES SNELBAKer. BRENNEMAN & SPAre 13. Denied. It is denied, to the extent it is implied, that Defendants have failed to make any of the required tax payments pursuant to Paragraph 4 of the Agreement. On the contrary, Defendants have made tax payments as required by the Agreement. 14. Admitted upon information and belief. 15. Denied. Paragraph 15 of Plaintiffs' Complaint contains a series of unwarranted conclusions of law to which no response is required by Defendants pursuant to Pa.R.C.P. 1029(d). 16. Denied. It is denied that Defendants are obli[gated to pay Plaintiffs' attorney's fees in the event of a breach of the Agreement by Defendants as alleged in Paragraph 16 of Plaintiffs' Complaint. The averments of Defendants' New Matter are incorporated by reference herein. 17. Denied. Paragraph 17 of Plaintiffs' Complaint contains a series of unwarranted conclusions of law to which no response is required by Defendants pursuant to Pa.R.C.P. 1029(d). 18. Admitted in part; denied in part. It is admitted that the notices attached to Plaintiffs' Complaint as Exhibit B were mailed to Defendants. It is denied that the notices properly described the means by which default could be cured based on the parties' Agreement. 19. Denied. Paragraph 19 of Plaintiffs' Complaint contains a series of unwarranted conclusions of law to which no response is required by Defendants pursuant to Pa.R.C.P. 1029(d). 20. Denied. It is denied, to the extent it is implied, that Plaintiffs have the right to "terminate" the agreement as such a remedy is not specified in the Agreement except when retaining payments made as liquidated damages. 21. Denied. It is denied that Defendants owed anything to Plaintiffs pursuant to a -3- LAW OFFICES SNELBAKER. BRENNEMAN & SPARE "mortgage". On the contrary, no mortgage was ever given by Defendants with respect to the Property. The Defendants, after reasonable investigation, are unable to admit the truth of the allegations concerning the amounts claimed as principal balance, interest and late fees; therefore, same are denied and strict proof thereof demanded. It is: denied that any attorney's fees are owed or collectible for the reasons set forth in New Matter, the averments of which are incorporated by reference herein. 22. Admitted. WHEREFORE, Defendants request this court to dismiss Plaintiffs' Complaint and enter judgment in their favor. NEW MATTER, 23. Plaintiffs' Complaint fails to set forth a claim or cause of action for which relief may be granted. 24. The parties' Agreement does not specify that the relief available to Plaintiffs against Defendants is cumulative. 25. The parties' Agreement does not specifically provide for ejectment as a remedy available to Plaintiffs, except by confession of judgment. 26. The parties' Agreement does not provide for both possession and acceleration of all amounts due as remedies available to Plaintiffs. 27. Paragraph 11 of the Agreement specifies the remedies available to Plaintiff. 28. Plaintiffs have never declared a forfeiture of r)efendants' rights under the Agreement and cancelled the Agreement in accordance with Paragraph 11 a. 29. Pursuant to Paragraph 1 la. and b. of the Agreement, Plaintiffs' ability to recover -4- LAW OfFICeS SNEIBAKER. BRENNEMAN & SPARe attorney's fees arises only if them is a writ of execution 'with costs or a confession of judgment against Defendants for the entire unpaid balance of the purchase price. There has been no writ of execution issued and no confession of judgment by Plaintiffs. 30. For the reasons set forth above, Plaintiffs are not entitled to recover attorney's fees in this action from Defendants. 31. For the reasons set forth above, the demands or notices given to Defendants were defective and improper. 32. Retaining mounts paid to Plaintiffs by Defendants constitutes the imposition ora penalty and not liquidated damages. 33. The demand for both possession and acceleration of all amounts due under the Agreement is inequitable, unconscionable and constitute~s an unlawful penalty. 34. Claiming both possession and acceleration of all amounts due under the Agreement as remedies is contrary to the Agreement, law, and principles of equity and constitutes an unlawful penalty. WHEREFORE, Defendants request this court to dismiss Plaintiffs' Complaint and enter judgment in their favor. Date: April 30, 2004 SNELBAKER, BRENNEMAN & SPARE, P. C. nY: Keith O. Brenneman, Esquire 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Defendants Robert B. Simmons and Tarnmy M. Halverson -5- LAW OFFICES SNELBAKER. BrENNEMAN & Spare VERIFICATION I verify that the statements made in the foregoing; Answer With New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Date: April 30, 2004 Tarn}n M. I [Ners6r VERIFICATION I verify that the statements made in the foregoing Answer With New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. Date: April 30, 2004 Robert B. Simmons'°'~ ~ ....... ~ SNeLBAKeR. BRENNEMAN & SPARE CERTIFICATE OF SERVICE I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have, on the below date, caused a tree and correct copy of the foregoing Answer with New Matter to be served upon the persons and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Douglas G. Miller, Esquire Irwin & McKnight 60 W. Pomfret Street Carlisle, PA 17013 SNELBAKER, BPd~NNEMAN & SPARE, P.C. Date: April 30, 2004 Keith O. Brenneman, Esquire 44 W. Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorney for Defendants LARRY E. FOOTE, SR., and MARY S. FOOTE, husband and wife, and H. DAVID MILLER, JR., and NORMA J. MILLER, husband and wife, Plaintiffs, ROBERT A. SIMNIONS, and TAMMY M. HALVERSON, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004- 1089 CIVIL TERM ACTION IN EJECTMENT MOTION FOR PARTIAL SUMMARY JUDGMENT AND NOW, this / day of July, 2004, come the Plaintiffs, Larry E. Foote, Sr., Mary S. Foote, H. David Miller, Jr., and Norma J. Miller, by and through their attorneys, Irwin & McKnight, and respectfully request that the Court enter an Order granting partial summary judgment in its favor on the issue of possession and in support thereof aver as follows: 1. There are no material issues of fact as to right of Plaintiffs to possession of the subject property. 2. In their Complaint filed March 12, 2004, Plaintiffs averred that the parties entered into as Agreement of Sale for the conveyance of three (3) lots owned by Plaintiffs and now known as 752 Shippensburg Road, Newville, North Newton Township, Cumberland County, Pennsylvania. A tree and correct copy of the Agreement of Sale was attached to the Complaint as Exhibit "A." 3. Plaintiffs further averred that Defendants, Robert A. Simmons and Tammy M. Halverson, are in default for failing to make the required regular monthly payments, the resulting late fees, and the property tax payments. 4. On or about April 30, 2004, Defendants filed an Answer with New Matter to the Complaint in which they effectively admitted that they have failed to make the required monthly payments and property tax payments. See in particular Defs. Answer ~ 8, 14. 5. Pennsylvania law holds that an installment sale agreement should be treated as a mortgage, and that the relationship between a seller and buyer who are parties to such an agreement is that of a mortgagee and mortgagor. See _Stillwater Lakes Civic Assoc.~ Inc. v. Krawitz, 772 A.2d 118, 120-121 (Pa. Commw. 2001). 6. Plaintiffs have complied with Act 6 of 1974, 41 P.S. § 403(a), and Act 91 of 1983, 35 P.S. § 1680.401c, by sending Defendants the combined notice provided for under Act 91, a copy of which notice and the certified mail receipts are attached to Plaintiffs' Complaint as Exhibit "B." 7. Plaintiffs have complied with Act 6 of 1974 as well as the Installment Land Contract Law by appropriately sending the combined notice to Defendants and affording them at least thirty (30) days to cure their arrearage before commencing the instant action. 8. Defendants have failed to meet with an authorized credit counseling agency in accordance with the Plaintiffs' written notice to Defendants, and by their own admission have failed to cure their arrearage. 9. To date, Defendants have failed to make any additional payments to Plaintiffs since the filing of the Complaint, and continue to be in default of the parties' Agreement. 10. In spite of their failure to make the required payments and reimbursements to Plaintiffs, Defendants continue to reside upon and use the subject real estate. 11. On the issue of possession, Defendants have :Failed to sustain their burden of presenting facts which contradict the averments of the Plaintiffs' Complaint. 2 WHEREFORE, Plaintiffs respectfully request that this Court enter partial summary judgment in their favor and award Plaintiffs possession of the subject property as requested in their Complaint. Date: July_}--~ , 2004 Respectfully Submitted, IRWIN & McKNIGHT gla{~G. Mallet, l~squire Supreme Court I.D. No. 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiffs VERIFICATION The foregoing document is based upon information which has been gathered by our counsel and ourselves in the preparation of this action. We have read the statements made in this document and they are tree and correct to the best of our knowledge, information and belief. We understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. Date: _ July 13, 2004 VERIFICATION The foregoing document is based upon information which has been gathered by our counsel and ourselves in the preparation of this action. We have read the statements made in this document and they are tree and correct to the best of our knowledge, information and belief. We understand that false statements heroin made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Foor r, sR. '- Date: Jul7 13, 2004 C ERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a tree and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set fbrth below: KEITH O. BRENNEMAN, ESQUIRE SNELBAKER, BRENNEMAN & SPARE 44 WEST MAIN STREET P.O. BOX 318 MECHANICSBURG, PA 17055 Date: July 13, 2004 IRWIN & McKNIGHT Douglas (~JMiller, Esquire - Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013 -3222 (717) 249-2353 LARRY E. FOOTE, SR., and MARY S. FOOTE, husband and wife, and H. DAVID MILLER, JR., and NORMA J. MILLER, husband and wife, Plaintiffs, ROBERT A. SIMMONS, and TAMMY M. HALVERSON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACT/ON - LAW NO. 2004- 1089 CIVIL TERM ACTION! IN EJECTMENT pLAINTIFFS' ANSWER TO DEFENDANT,S' NEW MATTEl. AND NOW, this _/,~ day of July, 2004, come the Plaintiffs, Larry E. Foote, Sr., Mary S. Foote, H. David Miller, Jr., and Norma J. Miller, by and through their attorneys, Irwin & McKnight, and make the following Answer to the New Matter filed by Defendants, Robert A. Simmons and Tammy M. Halverson, averring as follows: 23. The averments contained in paragraph twenty-three (23) of Defendants' New Matter are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 24. The averments contained in paragraph twenty-four (24) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specificaily denied and strict proof thereof is demanded at trial. 25. The averments contained in paragraph twenty-five (25) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 26. The averments contained in paragraph twenty-six (26) are conclusions of law to which no response is required. To the extent that a response is required, Plaintiffs admit that the Agreement does not provide for both possession and acceleration of the entire purchase price. However, any inference that Plaintiffs are not entitled to both possession and payment in full of all delinquent amounts due under the Agreement is specifically denied and strict proof thereof is demanded at trial. 27. The Agreement referenced by Defendants in paragraph twenty-seven (27) and attached to Plaintiffs' Complaint speaks for itself and therefore no response is required. To the extent that a response is required, the averments in paragrapht twenty-seven (27) are conclusions of law to which no response is required. 28. The averments contained in paragraph twenty-eight (28) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 29. The averments contained in paragraph twenty-uine (29) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 30. The averments contained in paragraph thirty (30) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 31. The averments contained in paragraph thirty-one (31) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, although Plaintiffs provided Defendants with additional opportunities to remedy this matter rather than electing to confess judgment, the notices provided to Defendants were both effective and proper. 32. The averments contained in paragraph thirty-two (32) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. 33. The averments contained in paragraph thirty-three (33) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, 2 Plaintiffs admit that the Agreement does not provide for both possession and acceleration of the entire purchase price. However, any inference that Plaintiffs are not entitled to both possession and payment in full of all delinquent amounts due under the Agreement is specifically denied and strict proof thereof is demanded at trial. 34. The averments contained in paragraph thirty-lbur (34) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded at trial. By way of further answer, Plaintiffs admit that the Agreement does not provide for both possession and acceleration of the entire purchase price. However, any inference that Plaintiffs are not entitled to both possession and payment in full of all delinquent amounts due under the Agreement is specifically denied and strict proof thereof is demanded at trial. WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor and award Plaintiffs the relief requested in their Complaint. Date: JulyS3 ,2004 Respectfully Submitted, IRWIN & McKNIGHT D°ug~. Miller, Esquire Supreme Court I.D. No. 83776 60 West Po~nfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorneys for Plaintiffs 3 VER/FICATION The foregoing document is based upon information which has been gathered by our counsel and ourselves in the preparation of this action. We have read the statements made in this document and they are true and correct to the best of our knowledge, information and beliefi We understand that false statements herein made are subject to the,' penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. LARRI~E. FOOTE, ~. Date: July 13, 2004 VERIFICATION The foregoing document is based upon information which has been gathered by our counsel and ourselves in the preparation of this action. We have mad the statements made in this document and they are tree and correct to the best of our knowledge, information and belief. We understand that false statements heroin made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities. MILLff~R,~ NORMA J. ' - Date: July 13, 2004 CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a tree and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: KEITH O. BRENNEMAN, ESQUIRE SNELBAKER, BRENNEMAN & SPARE 44 WEST MAIN STREET P.O. BOX 318 MECHANICSBURG, PA 170:55 Date: July 13, 2004 IRWIN & McKNIGHT Do~gglas I~. Miller, Esquire Supreme Court I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be t~pewritten and s~tted in dl~.~licate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Ple~e ] i~t the within matter for th~ next Argument Court. CAPTION OF CASE (entire ~_~p~n must be stated in ~1]) LARRY E. FOOTE, SR., and MA~Y S. FOOTE, husband and ~rife, and H. DAVID MILLER, JR., and NORMA J. MILLER, husband and ~ife, (p~ ~ntiff) ROBERT A. SII,94ONS and TAMMY M. HALv~SOIq, ( Defer~ant~ No. 2004-1089 Civ~-~ 19 State matter to be argued (i.e., plaintiff's motJDn for new trial, defen~lant's d~t~rr~-r to cu,~]alnt, etc.): Motion for Partial S~mary Judgment 2. Identify counsel who w~ ] ] argue case: Be (a) for plaintiff: Douglas G. Miller, Esquire ;u~r~ss: 60 West PomfretStreet Carlisle, PA 17013 (b) for defe_~clant: Keith O. Brenneman, Esquire ~res$: 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 I w~ll notify ~l parties in writingwith~n two days that ~ case has been ]~sted for argu~e_nt. 4. Argunent Court Date: September 22, 2004 July 30, 2004 Att6r~y lfcfr 91aintiffs Douglas ~- }Rller, Esquire LARRY E. FOOTE, SR. and MARY S. FOOTE, husband and wife, and II. DAVID MILLER, JR., and NORMA J. MILLER, husband and wife, Plaintiffs ROBERT A. SIMMONS, and TAMMY M. HALVERSON, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-1089 CIVIL TERM ACTION IN EJECTMENT p_~E._CCIPE TO THE PROTHONOTARY: Please mark the above-captioned action settled, discontinued and ended on your docket and indices. 60 West Pomfret Street Carlisle, PA 17013-3222 Attorneys for Plaintiffs Date: September 20, 2004 LARRY E. FOOTE, SR. and S. FOOTE, husband and wife, [ H. DAVID MILLER, JR., and MILLER, husband and wife, Plaintiffs A. SIMMONS, and TAMMY M. HALVERSON, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-1089 CIVIL TERM ACTION IN EJECTMENT CONSENT TO ENTRY OF JUDGMENT OF E~ECTMENT AND POSSESSION We, the undersigned and Defendants in the above-captioned action, hereby consent to the · of a judgment of ejectment and for possession against us and in favor of the Plaintiffs, and ' so consenting, hereby relinquish and release any and all equitable right and interest in the lots or parcels of land located in North Newton Township, Cumberland County, 71vania, commonly known as 752 Shippensburg Road, Newville, which lots or parcels are of this action. Robert A. Simmons Tammy ~l.'-t:talver so SNELBaKEr B~ENNEMAN SPARE