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HomeMy WebLinkAbout04-1514JOHN MOORE & TERESA MOORE, Plaintiffs V. GORDON BANZHOFF and IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. !9<f -/d'l9/ l "??.t (, «!Lj"I CIVIL ACTION - LAW KIMBERLY BANZHOFF, Defendants ORIGINAL 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 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 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 JOHN MOORE & TERESA MOORE, Plaintiffs V. GORDON BANZHOFF and KIMBERLY BANZHOFF, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. nq- 191Y CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE Plaintiffs, John Moore and Teresa Moore, husband and wife (hereinafter referred to as "Plaintiffs") by and through their attorneys, Killian & Gephart, LLP, hereby file this Complaint in Mortgage Foreclosure against Defendant Kimberly Banzhoff (hereinafter referred to as "Defendant"), and in support thereof avers the following: 1. Plaintiffs, John Moore and Teresa Moore, husband and wife, are adult individuals currently residing at 694 East Columbus Avenue, Corry, Pennsylvania 16407. 2. Defendant, Kimberly Banzhoffis an adult individual currently residing at 632 Devon Road, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Defendant, Gordon Banzhoff, Jr. is an adult individual currently residing at 245 North 25`h Street, Camp Hill, Cumberland County, Pennsylvania 17011 and is joint owner of the property located at 632 Devon Road, Camp Hill, Pennsylvania with Defendant Kimberly Banzhoff. 4. By mortgage note dated March 1, 1990, Defendant promised to pay the sum of $100,000 plus interest with costs of suit including 15% attorney's fees added for collection. A true and correct copy of the mortgage note executed by Defendants is incorporated herein and attached hereto as Exhibit "A." 5. The note contains a confession of judgment provision that allows Plaintiffs to enter judgment against Gordon Banzhoff and Kimberly S. Banzhoff after default on the note without advanced notice or an opportunity to defend against the entry of judgment. 6. On or about March 1, 1990, as security for the mortgage note, Defendant executed and delivered a mortgage to Plaintiffs in an amount equal to the note and all sums due thereunder upon certain real property located at 632 Devon Road in the Borough of Camp Hill, Cumberland County, Pennsylvania for the purpose of securing the payment of the note and the performance and observance of the terms, conditions and covenants of the note (hereinafter referred to as Exhibit "B"). Defendants are in default of the note as a result of their failure to make payments on the note when due. 8. The last payment was made by Defendant Gordon Banzhoffon or about May 3, 2000 in the amount of $2,461.47. 9. All of the note requirements have been fulfilled and the note and the mortgage have been accelerated. 10. Pursuant to the terms of the note, Defendants are liable to Plaintiff for the entire indebtedness including (a) all principal; (b) all interest; (c) all late charges; (d) all loan fees and loan charges; and (e) all collection costs and expenses relating to the note or to any collateral for the note which includes without limitation a 15% attorney's commission. 11. On September 29, 2003, the loan was in excess of three years past due and the past due amount was in excess of $160,000. 12. The entire principal, interest, late charges and fees of the note is now due and payable in full together with attorney's fees and costs of suit. 13. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 14. The mortgage note and the mortgage have not been assigned and Plaintiffs are the holders of the mortgage note and mortgage. 15. Judgment has not been entered against Defendant in any jurisdiction for their failure to make the required payments on the mortgage note and mortgage. WHEREFORE, Plaintiffs demand judgment against Defendant Kimberly Banzhoff in the sum of $160,668.25 plus interest until paid in full at the rate of 9% per annum together with attorney's fees and all other appropriate costs of suit. Respectfully submitted, ?? Michael J. 'Connor, Esquire Attorney I. D. #76127 Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Dated: April `_} , 2004 Attorneys for Plaintiffs 3 VERIFICATION I hereby verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the penalties contained in 18 Pa.C.S.A. §4904, relating to unworn falsification to authorities. VERIFICATION I hereby verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the penalties contained in 18 Pa.C.S.A. §4904, relating to unsworn falsification to authorities. Teresa Moore EXHIBIT `6A" r ) . MORTGAGE NOTE. $100.000.00 Harrisburg, Penna. March 1, 1990 FOR VALUE RECEIVED, GORDON K. BANZHOFF AND KIMBERLY S. BANZHOFF, (hereinafter called "the Undersigned" referred to as though singular in number and masculine in gender, whether one or more), promises to pay to the order of JOHN E. MOORE and TERESA J. MOORE, their heirs or assigns, in lawful money of the United States of America, the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00). The Undersigned hereby empowers the Prothonotary of any County or any Attorney of any Court of Record to appear for and confess judgment against the Undersigned in favor of any Holder for the said sum plus accrued interest with costs of suit including fifteen per cent attorney fees added for collection and hereby waives all errors and rights of appeal and all relief from any appraisement, valuation, stay, and exemption laws of any state and all bankruptcy laws of the United States now in force and hereafter enacted. As additional security along with the foregoing obligation, there has been delivered by the undersigned, the property hereinafter set forth as collateral security for the payment of this liability of the Undersigned to any Holder hereof, due or to become due, or that may be hereafter contracted, whether direct or contingent, and whether now or hereafter acquired, with the right on the part of the Holder hereof to repledge the said securities, and upon failure to comply with any such demands, this obligation shall forthwith become due, with full power and authority to the Holder hereof, in case of any default of the Undersigned, or of the non-payment of any of the liabilities above mentioned at maturity sell, assign and deliver the whole or part of said securities, or any substitutes therefor or additions thereto, at any broker's board or at public or private sale, either in York or elsewhere, at the option of the Holder, at any time or times, thereafter without advertisement or notice to the Undersigned, and with the right on the part of the Holder hereof to become purchaser and absolute owner thereof at such sale or sales free of all trusts and claims, and after deducting any legal or other costs and expenses, for collection, sale and delivery, to apply the residue of the proceeds of such sale or sales so made, to pay any or all of said liabilities as said holder hereof shall deem proper, returning the overplus, if any, to the undersigned; and it is further agreed that the said a property, together with any previously deposited or pledged hereafter shall stand as one general continuing collateral security for any and all obligations of the undersigned, so that the deficiency on any one shall be made good from the collaterals for the others; the Undersigned hereby remaining responsible for any deficiency in payments, and hereby waiving all benefit of any stay of execution or any exemption of property from execution or any privilege under any law now or hereafter to be in force, all remedies are cumulative and not alternative. The Undersigned pledges the property set forth, togther with (a) all proceeds of the property, including cash, stock and other dividends and rights to subscribe to securities incident to such property; and (b) all additions to, exchanges or substitutions for, the property. Mortgage of property 632 Devon Road, Camp Hill, Pennsylvania 17011 Address: 632 Devon Road !?- Camp Hill, PA 17011 / Witness: A: EXHIBIT "B" of a} r cc-Ro.u-nFF!,°- THE CL c cup; ?;;; '90 MR 6 an 10 53 MORTGAGE '90 APR 30 API 10 39 THIS MORTGAGE is made GORDON K. BANZHOFF and (hereinafter whether one or MOORE and TERESA J. MOORE, more called "Mortgagee"); this 1st day of March, 1990 between KIMBERLY S. BANZHOFF, his wife, more called "Mortgagor") AND JOHN E. his wife(hereinafter whether one or In consideration for and to secure payment to Mortgagee by Gordon K. Banzhoff and Kimberly S. Banzhoff of a loan and any interest and costs due thereon evidenced by a Note dated March 1, 1990 in the amount of $100,000.00, and performance of all conditions, covenants and obligations herein and in the Note and in an Installment Sales Contract dated March 1, 1990 or any other obligations of Mortgagor to Mortgagee now existing or hereafter incurred, the Mortgagor does by these presents grant, sell, convey and mortgage unto Mortgagee, ALL THAT CERTAIN real estate decribed situate in the Commonwealth of Pennsylvania known as 632 Devon Road, Borough of Camp Hill, County of Cumberland, Commonwealth of Pennsylvania recorded in the office of Recorder of Deeds in and for Cumberland County in Deed Book X, Volume 30; Page 595 - See Complete Desciption Attached. TOGETHER with all the buildings and improvements thereon and additions and alterations thereto, including all alleys, passageways, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging or appertaining. TO HAVE AND TO HOLD the Premises hereby granted and conveyed unto Mortgagee, to and for the use and behoof of Mortgagee, their successors and assigns, forever. THIS MORTGAGE IS MADE subject to the following conditions, covenants and obligations: a. All payments on the Note and the Installment Sales Contract will be made when due including payments due by acceleration of maturity, and all other conditions, covenants and obligations as required or provided herein, in the Note, or in any other obligation of Mortgagor to Mortgagee, will be performed; and b. Mortgagor covenants and warrants that Mortgagor has fee simple title to the Premises and the right to mortgage the Premises; and C. Mortgagor will pay when due all taxes and assessments and other governmental charges, including electricity, water and sewer rents levied or assessed against the Premises or any part thereof, and will deliver receipts therefor to the Mortgagee upon request, and shall pay when due all amounts secured by any prior lien on the Premises; and BOOK J968 %1E vUi G?Ud ?Ji-?r'AC??U9J ,,. d. Mortgagor will keep the Premises insured against fire and such hazards in such amounts as may be required by the Mortgagee and the policies and renewals evidencing such insurance shall have attached thereto a loss payable clause in form acceptable to Morgagee; and e. Mortgagor will neither sell, assign or transfer any or all of the Premises or any interest therein nor commit nor suffer any strip, waste, impairment or deterioration of the Premises and will maintain the same in good order and repair; and f. In the event of any default in making payment due and payable under the Note, or in the keeping and performance of any of the conditions, covenants and obigations contained herein or in the Note, or any other obligation of Mortgagor to Mortgagee, Mortgagee may, upon timely notice to Mortgagor if required by law, (i)forthwith bring any action of mortgage foreclosure hereon, or institute other foreclosure proceedings upon this mortgage, and may proceed to judgment and execution to recover the balance due on the Note and any other sums that may be due thereunder, including attorneys' fees, costs of suit and costs of sale to the extent, if any, provided in the Note and permitted by law, and (ii)enter into possession of Premises, with or without legal action, lease the same, collect all rents and profits therefrom and, after deducting all costs of collections and administration expense, apply the net rents and profits to the payment of taxes and other necessary maintenance and operation costs(including agents' fees and attorneys' fees) or on account of the Note, in such order and amounts as Mortgagee in Mortgagee's sole discretion may elect and Mortgagee shall be liable to account only for rents and profits actually received by Mortgagee; and g. Mortgagor hereby waives and releases all benefit and relief from any and all appraisement, stay and exemption laws now in force or hereafter passed, either for the benefit or relief of Mortgagor, or limiting the balance due to a sum not in excess of the amount actually paid by the purchaser of the Premises at sale thereof in any judicial proceedings upon this Mortgage,, or exempting the Premises, or any part of the proceeds of the sale thereof, from attachment, levy or sale under execution, or providing for any stay of execution or other process. BUT ALWAYS PROVIDED, nevertheless, that if this Mortgage and the debt hereby secured are paid in full in the manner provided in the Note and the Installment Sales Contract, then this Mortgage and the estate hereby granted shall cease and determine and become void, anything herein to the contrary notwithstanding. The covenants and conditions herein contained shall bind and the benefits and advantages shall inure to the respective heirs, executors, administrators, successors, hereto. Whenever used, the singular plural, the plural and the singular &DOK ?Ei$ PAGE 508 and assigns of the parties number shall include the and the use of any gender booK, 9il PuE10A r shall be applicable to all genders. Payment of this Mortgage is subject to the terms and conditions of the Note and Installment Sales Contract referred to above. IN WITNESS WHEREOF, the Mortgagor has hereunto set hand and seal the day and year first above written. 1 i Gordon K. BanzJo f? imberly $anzhoffb commonwealth of Pennsylvania: County of Dauphin: NOTARIAL SERI. tar Pub ' ` CANOICf E. MILLER. NOTARY P Q , y t + a' Q S CITY OF NARRIS&:R6 OAU?PIN • {A rt.S MY C"ISSION EXPIRES 011 I certify that the precise residence f the G GEE is 694 East Columbus Avenue, Corry, Penns a i 407. Agent on ehal$ df Mortgagee on this 1st day of march, 1990, before me the subscriber, a Notary Public in and for the Commonwealth of Pennsylvania, the undersigned officer, personally appeared Gordon K. Banzhoff and Kimberly S. Banzhoff, known to me to be the pergips whose names are subscribed to the above Mortgage and,,;• @{Iged execution of same for the purposes therein contai^I?il. A, "k dLB-red that it be recorded as such. IN WITNESS WHEREOF, the Mortgagor has and year first above written. V141 /,??? 1 Gordon K. Banzhoff ?j COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN hereunto set hand and seal the day Kimberly S. Bari f On this 19th day of April, 1990, before me the subscriber, Public in and for the Commonwealth of Pennsylvania, the undersi personally appeared Gordon K. Banzhoff and Kimberly S. Banzhoff to be the persons whose names are subscribed to the above Mort$ acknowledged execution of same for the purposes there ir?contain desired that it be recorded as such. / BOOK 968 PACE 599 v--Notary OJUY, J/•? FAGij?)?;i bl.c mi.7- `? N ? ? w .,p '- w ?' w v -o na i) ?: <== ( i '?t ;;', JOHN MOORE & TERESA MOORE, Plaintiffs VS. GORDON BANZHOFF AND KIMBERLY BANZHOFF, Defendants NO. 04-1514 CIVIL TERM IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW PRELIMINARY OBJECTIONS AND NOW, comes the Defendant Kimberly Banzoff by her attorneys, Purcell, Krug & Haller, who files the Preliminary Objections to the Complaint in Mortgage Foreclosure as follows: 1. Plaintiffs have combined an in rem proceeding with an in personum proceeding, in violation of Pa. R.C.P. 1141(a). 2. Plaintiffs' Complaint fails to provide an itemized statement of the amount due pursuant to Pa. R.C.P. 1147(5). 3. Plaintiffs fail to provide a specific averment of default in violation Pa. R.C.P. 1147(4). WHEREFORE, Plaintiffs Complaint should be stricken for failure of the pleading to conform to law or rule of Court. 4. The note and mortgage attached to the Complaint upon which the Complaint in Mortgage Foreclosure is based contains no terms for repayment, interest or default. WHEREFORE, Defendant demurs to the Plaintiffs' Complaint, and request that the Court dismiss the Complaint for failure to state a cause of action upon which relief can be granted. 5. In the mortgage attached to the Complaint, the mortgage refers to an Installment Sales Contract dated March 1, 1990, which is not made a part of the pleadings as required by Pa. R.C.P. 1019(i). WHEREFORE, the Plaintiffs request this Honorable court to strike the Complaint for failure to provide a copy of the document upon which the claim is based. 6. Plaintiffs' claim is based on a mortgage note and mortgage both dated March 1, 1990. 7. Plaintiffs allege that the last payment was made on the note in May of 2000, and that as of September 2003, the amount past due is $160,000.00, far in excess of the amount of the original note. 8. Plaintiffs have failed to state with specificity the basis for the amount in default. WHEREFORE, the Defendant requests this Honorable Court strike the Complaint for lack of specificity. Respectfully submitted, 1'/19 North Front Street Harrisburg„ PA 17102 (717) 234-4178 CERTIFICATE OF SERVICE I, John W. Purcell, Jr., Attorney for the Defendant amberly Banzhoff, hereby certify that a true and correct copy of the foregoing was served on the Defendants by forwarding said copy to their attorney at the following address, by first; class U.S. Mail on May 3, 2004, 2004: Michael J. O'Connor, Esquire Killian & Gephart, LLP 218 Pine Street P.O. Box 886 Harrisburg, r) c` - rya ° p r T C='i` W rj L ?a ??Y ?- 4J J r77 C-3 77 N -? SHERIFF'S RETURN - REGULAR CASE NO: 2004-01514 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MOORE JOHN ET AL VS BANZHOFF GORDON ET AL GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon BANZHOFF KIMBERLY the DEFENDANT , at 2050:00 HOURS, on the 14th day of April 2004 at 632 DEVON ROAD CAMP HILL, PA 17011 by handing to KIMBERLY BANZHOFF a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 11.04 Affidavit .00 Surcharge 10.00 .00 27.04 Sworn and Subscribed to before me this a day of CIP- 02ou`{ A.D. n c? G. Prothonotary So Answers: R. Thomas Kline 04/20/2004 KILLIAM & GEPHART By Deputy Siff SHERIFF'S RETURN - REGULAR CASE NO: 2004-01514 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MOORE JOHN ET AL VS BANZHOFF GORDON ET AL SHANNON SHERTZER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon BANZHOFF GORDON the DEFENDANT , at 2005:00 HOURS, on the 19th day of April 2004 at 245 NORTH 25TH STREET CAMP HILL, PA 17011 by handing to GORDON BANZHOFF 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 18.00 Service 10.35 Affidavit .00 Surcharge 10.00 .00 38.35 Sworn and Subscribed to before me this day of A. D. Prothonotary So Answers: R. Thomas Kline 04/20/2004 KILLIAN & GEPHART ?y y By: Deputy Sheri John Moore and Teresa Moore vs Case No. 0 4 -ev-1514 Gordon Banzhoff and Kimberly Banzhoff Statement of Intention to Proceed To the Court: John and Teresa Moore intends to proceed with the above captioned matter, PriiitNamt Michael J. O'Connor Sign,sl4ame Attorney ID 76127 Date: September 26, 2007 Attorneyfor John and TPraGa Mann- Plaintiffs Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. N -.-.? Cm ? ?. ? `. : ? -. ri i'"; J `. , ? .._ .. ' ...t.. _.,. t,f "'`k 7 J ?..[ "'?