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HomeMy WebLinkAbout08-6294PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 a/ FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 MICHELE M. BRADFORD, ESQ., Id. No. 69849 JUDITH T. ROMANO, ESQ., Id. No. 58745 SHEETAL SHAH-JANI, ESQ., Id. No. 81760 JENINE R. DAVEY, ESQ., Id. No. 87077 LAUREN R. TABAS, ESQ., Id. No. 93337 VIVEK SRIVASTAVA, ESQ., Id. No. 202331 JAY B. JONES, ESQ., Id. No. 86657 PETER MULCAHY, ESQ., Id. No. 61791 ANDREW SPIVACK, ESQ., Id. No. 84439 JAIME MCGUINNESS, ESQ., Id. No. 90134 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 186328 WELLS FARGO FINANCIAL PENNSYLVANIA, INC. 4137 121ST STREET URBANDALE, IA 50323 V. Plaintiff ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. tag - 0,294 Coar-w'", CUMBERLAND COUNTY HELEN V. SMYTH GENE W. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 Defendants CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 186328 NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9108 File #: 186328 IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 et seq. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH File #: 186328 THE LAW PROVIDES THAT YOUR ANSWER TO THIS COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME A14D ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL ESTATE. File #: 186328 1. Plaintiff is WELLS FARGO FINANCIAL PENNSYLVANIA, INC. 4137 121ST STREET URBANDALE, IA 50323 2. The name(s) and last known address(es) of the Defendant(s) are: HELEN V. SMYTH GENE W. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 01/15/2007 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to PLAINTIFF which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Book No. 1980, Page 1369. The mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 4. The premises subject to said mortgage is described as attached. 5. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 02/20/2008 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written:notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. File #: 186328 6. The following amounts are due on the mortgage: Principal Balance $50,318.53 Interest $4,592.64 01/20/2008 through 10/21/2008 (Per Diem $16.64) Attorney's Fees $1,250.00 Cumulative Late Charges $0.00 01/15/2007 to 10/21/2008 Cost of Suit and Title Search 550.00 Subtotal $56,711.17 Escrow Credit $0.00 Deficit $0.00 Subtotal 0.00 TOTAL $56,711.17 7 8. If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. Plaintiff is not seeking a judgment of personal liability (or an in personam judgment) against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. File #: 186328 9. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $56,711.17, together with interest from 10/21/2008 at the rate of $16.64 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. PHELAN HALLINAN & SCHMIEG, LLP By: LAWRENCE T. PHELAN, ESQUIRE -Ff-ANCIS S. HALLINAN, ESQUIRE DANIEL G. SCHMIEG, ESQUIRE MICHELE M. BRADFORD, ESQUIRE JUDITH T. ROMANO, ESQUIRE SHEETAL R. SHAH-JANI, ESQUIRE JENINE R. DAVEY, ESQUIRE LAUREN R. TABAS, ESQUIRE VIVEK SRIVASTAVA, ESQUIRE JAY B. JONES, ESQUIRE PETER MULCAHY, ESQUIRE ANDREW SPIVACK, ESQUIRE JAIME MCGUINNESS, ESQUIRE Attorneys for Plaintiff File #: 186328 LEGAL DESCRIPTION LAND REFERRED TO IN THIS COMMITMENT IS DESCRIBED AS ALL THAT CERTAIN PROPERTY SITUATED IN South MIDDLETON TOWNSHIP IN THE COUNTY OF CUMBERLAND, AND STATE OF PA AND BEING DESCRIBED IN A DEED DATED 10/12/2006 AND RECORDED 12/12/2006 IN BOOK 277 PAGE 480 AMONG THE LAND RECORDS OF THE COUNTY AND STATE SET FORTH ABOVE, AND REFERENCED AS FOLLOWS: BEGINNING AT A POINT, THE INTERSECTION OF THE APPALACHIAN TRAIL, SOMETIMES LOCALLY KNOWN AS GREEN Road AND THE CARLISLE, HANOVER TURNPIKE, HIGHWAY ROUTE NO. 94; THENCE IN A Southerly DIRECTION BY THE LINE OF SAID CARLISLE, HANOVER TURNPIKE, ROUTE NO. 94, EIGHTEEN RODS TO A POINT MARKED BY A STATE; THENCE IN A Westerly DIRECTION BY OTHER LANDS OF THE GRANTORS, TWELVE RODS TO A POINT MARKED BY A STAKE; THENCE IN A Westerly DIRECTION BY OTHER LANDS OF THE GRANTORS, TWELVE RODS TO A POINT MARKED BY A STAKE; THENCE IN A Northerly DIRECTION BY OTHER LANDS OF THE GRANTORS NINE RODS TO A POINT MARKED BY A STAKE AT THE Southern SIDE OF THE APPALACHIAN TRAIL; THENCE BY LINE OF SAID APPALACHIAN TRAIL IN AN Easterly DIRECTION EIGHTEEN RODS TO THE PLACE OF BEGINNING. CONTAINING ONE (1) ACRE OF LAND, MORE OR LESS. PARCEL NO. 40-14-0142-003A PROPERTY ADDRESS: 5% BALTIMORE PIKE File #: 186328 VERIFICATION I hereby state that I am the attorney for Plaintiff in this matter, that Plaintiff is outside the jurisdiction of the court and/or the verification could not be obtained within the time allowed for the filing of the pleading, that I am authorized to make this verification pursuant to Pa.R.C.P. 1024 (c), and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are based upon information supplied by the Plaintiff and are true and correct to the best of my knowledge, information and belief. Furthermore, counsel intends to substitute a verification from Plaintiff upon receipt. The undersigned understands that this statement is made subject to the penalties of 18 Pa.C.S. Sec 4904 relating to unsworn falsifications to authorities. "'2 / kL&,- " Attorney for Plaintiff DATE: / 0 2 0 P Q W, < r c.' ?' C PHELAN HALLINAN & SCHMIEG, LLP FRANCIS S. HALLINAN, ESQ., Id. No. 62695 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 WELLS FARGO FINANCIAL PENNSYLVANIA, INC. Plaintiff VS. HELEN V. SMYTH GENE W. SMYTH Defendant(s) ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION NO. 08-6294 CIVIL TERM CUMBERLAND COUNTY PRAECIPE TO SUBSTITUTE VERIFICATION TO CIVIL ACTION COMPLAINT IN MORTGAGE FORECLOSURE TO THE PROTHONOTARY: Kindly substitute the attached verification for the verification originally filed with the complaint in the instant matter. Date: 11/13/08 Phelan Hallinan & Schmieg, LLP Attorney for Plaintiff By: Frans S. Ha linan, Esquire PHS #: 186328 PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 WELLS FARGO FINANCIAL PENNSYLVANIA, INC. VS. HELEN V. SMYTH GENE W. SMYTH Plaintiff ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION NO. 08-6294 CIVIL TERM CUMBERLAND COUNTY Defendant(s) CERTIFICATE OF SERVICE I hereby certify that a strue and correct copy of Plaintiff's Praecipe to attach Verification of Complaint was sent via first class mail to the following on the date listed below: HELEN V. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 GENE W. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 Date: 11/13/08 Phelan Hallinan & Schmieg, LLP Attorney for Plaintiff By: Franci S. Han, Esquire VERIFICATION OCE PRESIDENT Darin Waked hereby states that he/she is of WELLS FARGO FINANCIAL PENNSYLVANIA, INC., servicing agent for Plaintiff, WELLS FARGO FINANCIAL PENNSYLVANIA, INC., in this matter, that he/she is authorized to take this Verification, and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are true and correct to the best of his/her knowledge, information and belief subject to the penalties of 18 Pa. C.S DATE: _1_0 -A-619 The undersigned understands that this statement is made Sec. 4904 relating to unsworn si catio uth tes. Z ame: 8fin 8 Title: VICE PRESIDENT Company: WELLS FARGO FINANCIAL PENNSYLVANIA, INC. File #: 186328 ? ?? ..._ _ r' , ?? w ?? ?? .? -? +w ? d'-" (? ?? , , _ ?< .- tr ? . ?, ` F? ?' ?..,? " SHERIFF'S RETURN - REGULAR CASE NO: 2008-06294 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WELLS FARGO FINANCIAL PENNSYLV Vs SMYTH HELEN V 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 SMYTH HELEN V the DEFENDANT , at 2040:00 HOURS, on the 28th day of October , 2008 at 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 HELEN V SMYTH by handing to 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 18.00 Service 10.00 Affidavit .00 Surcharge 10.00 .00 I z f 2 Ylb9 3 8. 0 0 So Answers: R. Thomas Kline 12/18/2008 PHELAN HALLINAN-S Sworn and Subscibed to By, before me this day of A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2008-06294 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WELLS FARGO FINANCIAL PENNSYLV VS SMYTH HELEN V 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 SMYTH GENE W the DEFENDANT at 2040:00 HOURS, on the 28th day of October 2008 at 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 by handing to HELEN V SMYTH, WIFE 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 .00 Affidavit .00 Surcharge 10.00 n .00 jV2 N/D t 16.00 Sworn and Subscibed to before me this day of So Answers: R. Thomas Kline 12/18/2008 PHELAN HALLINANJ$ By. A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-06294 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WELLS FARGO FINANCIAL PENNSYLV VS SMYTH HELEN V ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: SMYTH HELEN V but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within COMPLAINT - MORT FORE On December 18th , 2008 , this off attached return from YORK Sheriff's Costs: So Docketing 6.00. Out of County 9.00 Surcharge 10.00 Th Dep York County 48.24 Sher'f Postage .93 74.17 J !4a 12/18/2008 PHELAN HALLINAN SCHMIEG ce was in receipt of the as Kline f of Cumberland County Sworn and subscribe to before me this day of , A. D. SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2008-06294 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WELLS FARGO FINANCIAL PENNSYLV VS SMYTH HELEN V ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: SMYTH GENE W but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within COMPLAINT - MORT FORE On December 18th , 2008 , this office was in receipt of the attached return from YORK Sheriff's Costs: So ans Docketing 6.00 Out of County .00 Surcharge 10.00 Veri as K ine .00 )?of Cumberland County .00 16.00 . 12/18/2008 PHELAN HALLINAN SCHMIEG Sworn and subscribe to before me this day of A.D. I of 2 COUNTY aF YORK OFFICE OF THE SHERIFF SE 17)771 9601E PHS• 186328 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE INSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINE 1 THRU 12 DO NOT DETACH ANY COPIES 1 PLAINTIFF/S/ 2 COURT NUMBER tTaTTe @wnnl? TPT17A17!`TAT 4. TYPE OF WRIT OR COMPLAINT 3. OEFENDANTISr N? cL HELEN V SMYTH & GENE W SMYTH C?GAGERCLOSURE SERVE 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION Of PROPERTY TO BE LEVIED, ATTACHED, OR SOLD HELEN V SMYTH 6 AWRESS (STREET OR RFO WITH BOX NUMBER. APT NO., CITY, BORO. TWP. STATE AND ZIP CODE) AT 3QZ RIDGEVIEW ROAD, SEVEN VALLEYS, PA 17360 7 INDICATE SERVICE U PERSONAL U PERSON IN CHARGE EPUTIZE CIrflyyenIi'JT U 1ST CLASS MAIL U POSTED U OTHER NOW October 24 .202-8 I, SHERIFF OF M'COUNTY, PA, do hereby deputize the sheriff of York COUNTY to execute- 146ake return t ccording to law. This deputization being made at the request and risk of the plaintiff. SHERIFF OF COUNTY 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE OUT OF CO. Cunberland * ATTEMPT SERVICE AT LEAST 3 TIMES AND ONE TIME AFTER 6PM. * Please mail return of service to CLUnberland County Sheriff. Thank you. A DV FEE AATD RY ATTY - NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriffs sale thereof. 9. E 1QRIGMIF)R and SIGNATURE n 10. TELEPHONE NUMBER 11. DATE FILED i?1R'?I ,v _T LL .L SC?c ?--- - 215 563 7000 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed) 10-23-08 CUMBERLAND CO SHERIFF SPACE BELOW FOR USE OF THE SHOW - DO NOT WRIITE N MOW TINS U+E 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15. ExpiralkWHearing Date or comphiett as indicated above. MJ MC G I LL YC S O 110-27-2008 11-22-2008 16. HOW SERVED: PERSONAL ( ) RESIDENCE ( ) POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BELOW I7. ,XI hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 18. NAME AND TITLE OF INDNIDUAL SERVED I LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 119. Date of Service 120 Time of Service 21. ATTEMPTSI Date I Time I Miles I Int. 22. REMARKS: Date I Time I Miles I Int. I Date I Time I Miles I Int. I Date I Time I Miles I Int. I Dale I Time I Miles I 1M. PER CURRENT HOMEOWNER, MICHELLE MCGINNIS, DEF ON LONGER RESIDES AT THIS ADDRESS. WE DID A POST OFFICE CHECK, NOT BACK BY EXPIRATION DATE. 27. Postage 28. Sub Total 29. Pound 30 Notary 31. Surchg. . Tot. Costs 33 Costs Due Refund Check No. 1. j 23. Advance Costs 24. Service Costs 25. NIF 26. Mileage 100.00 )A-Ml 141, Aq I i .M 0% -,2 457/- 133% O? U. ForNgn Cour" Costs 35. Advance Costs 36. Service Costs 37 Notary Cert. 38. MdeagWPoslage/Not Found 39. Total Costs 40. Costs Due or Refund 41. AFFIRM m this 5th SO ANSWERS I AA Signature of 45. DATE 42. day _ p. Sheriff 71SA OTARIAL S t0" / NOTAR 46. Signature of York 47 DATE WMAN, NOTARY PUBLIC County Sheriff R , SHERIFF 12-15-200$ YORK, YORK COUNTY ON EXPIRES AUG. 12 , 2009 48 Signature of Foreign 49. DATE County Sheriff 50. 1 ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE 51 DATE RECEIVED OF AUTHORIZED ISSUING AUTHORITY AND TITLE 1. WHITE . Issuir?g Authority 2. PINK - Attorney 3. CANARY - Sheriffs Office 4. BLUE - Sheriffs Office '? COUNTY `OF YOhK 2 OF 2 OFFICE OF THE SHERIFF SERVICE CALL \ (717) 771-9601 PHS• 186328 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE WSTRUCTIONS PROCESS RECEIPT and AFFIDAVIT OF RETURN PLEASE TYPE ONLY LINE 1 THRU 12 DO NOT DETACH ANY CONS 1 PLAINTIFFIS/ 2 COURT NUMBER WELLS FARGO FINANCIAL,... 08-6294 civil 3 DEFENDANT/S/ 4. TYPE OF WRIT OR COMPLAINT CIMF NOTICE HELEN V MYTH A GENE W SMYTH MORTUd FORCLOSURE SERVE 5 NAME OFD DIVIDU L COMPANY, CORPORATION, ETC TO SERVE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED, OR SOLD 6. ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO, CITY, BORO, TWP, STATE AND ZIP CODE) AT -3* RIDGEVIEW ROAD, SEVEN VALLEYS, PA 17360 M)41L?a n 1ST CLASS MAIL U POSTED U OTHER 7. INDICATE SERVICE O PERSONAL O PERSON IN CHARGE )OMEPUTIZE =T NOW October 24, 20 08 I, SHERIFF OFt COUNTY, PA, do bftreby deputize heriff of York COUNTY to execute this ?!i e r he {l9 to law. This deputization being made at the request and risk of the plaintiff.. 6. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICIDUT OF CO. * ATTEMPT SERVICE AT LEAST 3 TIMES AND ONE TIME AFTER 6PM. * Please mail return of service to CLHnberland County Sheriff. Thank you. ADV FEE PAID BY ATTY. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction, or removal of any property before sheriff's sale thereof. 9. P E AD R o A Y RI OR and SIGNATURE' 10. TELEPHONE NUMBER 11 DATE FILED ?? ?2 215 563 7000 AQ 2.1.-x-= 12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area must be completed if notice is to be mailed) 10-23-2008 , CUMBERLAND CO SHERTFF SPACE BELOW FOR USE OF TW SHERFIF -- DO NOT WRR'E BELOW LW 13. 1 acknowledge receipt of the writ 14. DATE RECEIVED 15. Expiration/Hearing Date or complaint as indicated above. MJ MCG I LL YC SO 110-27-2008 11-22-2008 16. HOW SERVED: PERSONAL ( ) RESIDENCE ( ) POSTED( ) POE( ) SHERIFF'S OFFICE ( ) OTHER ( ) SEE REMARKS BELOW 17. i 1 hereby certify and return a NOT FOUND because I am unable to locate the individual, company, etc. named above. (See remarks below.) 18. NAME AND TITLE OF INDIVIDUAL SERVED / LIST ADDRESS HERE IF NOT SHOWN ABOVE (Relationship to Defendant) 19. Date of Service 20 Time of Service 21. ATTEMPTS ate Time Int. Date Ti Miles Int. Date Time Miles Int Date Time Miles Int. Date Time Mile s Int. Dale Time Miles Int. 22. REMARKS PER CURRENT HOMEOWNER, MICHELLE MCGINNIS, GENE W SMYTH NO LONGER RESIDES AT THIS ADDRESS. WE DID A POST OFFICE CHECK AND NOT BACK BY EXPIRATION DATE. 23. Advance Costs 24. Service Costs 25. N/F 26. Mileage 27. Postage 28. Sub Total 29. Pound 30 Notary 31. Surchg. 32. Tot. Costs 33 Costs Due or Refund Check No 34. Foreign County Costs 35. Advance Costs 36 Service Costs 37. Notary Cert. 38. Mdeage/Postage Not Found 39. Total Costs 40 Costs Due or Refund 41. AFFIRMED and subscribed to 42. day of DEC . 20 08 4 NOTARIAL SEAL LISA L. BOWMAN, NOTARY PUBLIC CITY OF YORK, YORK COUNTY w/1huu11:CInN EXPIRESAUG. 12, 2009 50. IA OF AUTHORITY AND TITLE 44. Signature of 45. DATE Dep. Sheriff 46. Signature of York 47. DATE County Sheriff RICHARD P. , 12-15-2008 48 Signature of Foreign 49 DATE County Sheriff ATURE 51 DATE RECEIVED 1. WHITE - Issuing AuBority 2. PINK - Attorney 3. CANARY • Sheriffs Otrice 4. BLUE, SheWs Office Phelan Hallinan & Schmieg, LLP By: Daniel G. Schmieg, Esquire Identification No. 62205 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 WELLS FARGO FINANCIAL PENNSYLVANIA, INC. VS. HELEN V. SMYTH GENE W. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 Attorney for Plaintiff : CUMBERLAND COUNTY : COURT OF COMMON PLEAS : CIVIL DIVISION : No. 08-6294 CIVIL TERM PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter judgment in favor of the Plaintiff and against HELEN V. SMYTH, and GENE W. SMYTH, Defendant(s) for failure to file an Answer to Plaintiff's Complaint within 20 days from service thereof and for foreclosure and sale of the mortgaged premises, and assess Plaintiff's damages as follows: As set forth in Complaint $56,711.17 Interest -10/22/2008 to 12/30/2008 $1,164.80 TOTAL $57,875.97 I hereby certify that (1) the addresses of the Defendant(s) are as shown above, and (2) that notice has been given in accordance with Rule 237. 1, copy attached. Daniel G. Schmieg, Esquire Attorney for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: a O PHS # 186328 PRO PROTHY . PHELAN HALLINAN & SCHMIEG, LLP By: LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 WELLS FARGO FINANCIAL PENNSYLVANIA, INC. Plaintiff V. HELEN V. SMYTH GENE W. SMYTH Defendant(s) TO: HELEN V. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 DATE OF NOTICE: December 16, 2008 ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISON NO. 08-6294 CIVIL TERM CUMBERLAND COUNTY ?i THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT THE INDEBTEDNESS REFERRED TO HEREIN, AND ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE.IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY AS ENFORCEMENT OF LIEN AGAINST PROPERTY. You are in default because you have failed to enter a written appearance personally or by attorney and file in writing with the court your defenses or objections to the claims set forth against you. Unless you act within ten (10) days from the date of this notice, a Judgment may be entered against you without a hearing and you may lose your property or other important rights. You should take this notice to a lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the following office to find out where you can get legal help: Office of the Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6195 Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 1 -....... ............. VIENNA C. VITACOLONNA Legal Assistant PHS # 186328 PHELAN HALLINAN & SCHMIEG, LLP By: LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 DANIEL G. SCHMIEG, ESQ., Id. No. 62205 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (2155) 563-7000 WELLS FARGO FINANCIAL PENNSYLVANIA, INC. Plaintiff V. HELEN V. SMYTH GENE W. SMYTH Defendant(s) TO: GENE W. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 DATE OF NOTICE: December 16, 2008 ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISON NO. 08-6294 CIVIL TERM CUMBERLAND COUNTY AyZ, Cpp? THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT THE INDEBTEDNESS REFERRED TO HEREIN, AND ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE.IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY AS ENFORCEMENT OF LIEN AGAINST PROPERTY. You are in default because you have failed to enter a written appearance personally or by attorney and file in writing with the court your defenses or objections to the claims set forth against you. Unless you act within ten (10) days from the date of this notice, a Judgment may be entered against you without a hearing and you may lose your property or other important rights. You should take this notice to a lawyer at once. If you do not have a lawyer or cannot afford one, go to or telephone the following office to find out where you can get legal help: Office of the Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6195 Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 p L?= VIENNA C. VITACOLONNA Legal Assistant PHS # 186328 Phelan Hallinan & Schmieg, LLP By: Daniel G. Schmieg, Esquire Identification No. 62205 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 WELLS FARGO FINANCIAL PENNSYLVANIA, INC. VS. HELEN V. SMYTH GENE W. SMYTH Attorney for Plaintiff : CUMBERLAND COUNTY : COURT OF COMMON PLEAS : CIVIL DIVISION : No. 08-6294 CIVIL TERM VERIFICATION OF NON-MILITARY SERVICE Daniel G. Schmieg, Esquire, hereby verifies that he is attorney for the Plaintiff in the above-captioned matter, and that on information and belief, he has knowledge of the following facts, to wit: (a) that the defendant(s) is/are not in the Military or Naval Service of the United States or it Allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act of Congress of 1940, as amended. (b) that defendant HELEN V. SMYTH is over 18 years of age and resides at 596 BALTIMORE PIKE, GARDNERS, PA 17324-9034. (c) that defendant GENE W. SMYTH is over 18 years of age and resides at 596 BALTIMORE PIKE, GARDNERS, PA 17324-9034. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Daniel G. Schmieg, Esquire Attorney for Plaintiff n.? 7L)` , 7' + 6• ? f_eJ j C e M T3' ~ ? ' t . . ``r C . , -Aw (Rule of Civil Procedure No. 236) - Revised WELLS FARGO FINANCIAL PENNSYLVANIA, INC. VS. HELEN V. SMYTH GENE W. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 : CUMBERLAND COUNTY : COURT OF COMMON PLEAS : CIVIL DIVISION : No. 08-6294 CIVIL TERM Notice is given that a Judgment in the above captioned matter has been entered against you on At 41 By: 1. PE4VUffY If you have any questions concerning this matter please contact: Daniel G. Schmieg, Esquire Attorney or Party Filing 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 ** THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANYINFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLYRECEIVED A DISCHARGE INBANKRUPTCY, THIS IS NOTAND SHOULD NOT BE CONSTRUED TO BE ANA TTEMPT TO COLLECT A DEBT, BUT ONLYENFORCEMENT OFA LIENAGAINST PROPERTY. ** (717) 249-3166 (800) 990-9108 PRAECIPE FOR WRIT OF EXECUTION - (MORTGAGE FORECLOSURE) Pa.R.C.P. 3180-3183 WELLS FARGO FINANCIAL PENNSYLVANIA., INC. Plaintiff, V. No. 08-6294 CIVIL TERM HELEN V. SMYTH GENE W. SMYTH Defendant(s). TO THE PROTHONOTARY: Issue writ of execution in the above matter: Amount Due $57,875.97 Interest from 12/31/2008 - 06/10/2009 $1,540.62 and Costs (per diem -$9.51 ) TOTAL $59,416.59 ANI G. SC , ESQUIRE One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 Attorney for Plaintiff Note: Please attach description of property. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a MRMjgntative of the plaintiff at the Sheriffs Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. 186328 W ? a? OW a U O? ?U a? U? ?w H ?U UU ?C 07 w aw CA 7 r++ W W r? w? C H o 4 0 was U a M d i w? 0 N W p., w w H d PHELAN HALLINAN & SCHMIEG, L.L.P. By: DANIEL G. SCHMIEG Identification No. 62205 ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD., SUITE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 WELLS FARGO FINANCIAL PENNSYLVANIA, INC. Plaintiff, V. HELEN V. SMYTH GENE W. SMYTH . Defendant(s). ATTORNEY FOR PLAINTIFF CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 08-6294 CIVIL TERM CERTIFICATION DANIEL G. SCHMIEG, ESQUIRE, hereby verifies that he is attorney for the Plaintiff in the above-captioned matter, and that the premises are not subject to the provisions of Act 91 because it is: () an FHA mortgage ( ) non-owner occupied ( ) vacant (X) Act 91 procedures have been fulfilled This certification is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. Attomey for Plaintiff ?*? . ? WELLS FARGO FINANCIAL PENNSYLVANIA, INC. CUMBERLAND COUNTY 1 ' Plaintiff, COURT OF COMMON PLEAS V. . CIVIL DIVISION HELEN V. SMYTH GENE W. SM1fM NO. 08-6294 CIVIL TERM Defendant(s). AFFIDAVIT PURSUANT TO RULE 3129.1 WELLS FARGO FINANCIAL PENNSYLVANIA INC. Plaintiff in the above action, by its attorney, DANIEL G. SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at s596 BALTIMORE PIKE, GARDNERS, PA 17324-9034. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) HELEN V. SMYTH GENE W. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 2. Name and address of Defendant(s) in the judgment: Same as above 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 4. Name and address of last recorded holder of every mortgage of record: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) TRANSAMERICA FINANCIAL CONSUMER DISCOUNT CO. 2555 KINGSTON BLVD; STE. 140 YORK, PA 17402 r M 5. Name and address of every other person who has any record lien on the property: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) Tenant/Occupant Domestic Relations of Cumberland County Commonwealth of Pennsylvania Department of Welfare Commonwealth of Pennsylvania Bureau of Individual Tax Inheritance Tax Division Internal Revenue Service Federated Investors Tower Department of Public Welfare TPL Casualty Unit Estate Recovery Program 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 13 North Hanover Street Carlisle, PA 17013 PO Box 2675 Harrisburg, PA 17105 6th Floor, Strawberry Sq., Dept. 28061 Harrisburg, PA 17128 13th Floor, Suite 1300 1001 Liberty Avenue Pittsburgh, PA 15222 P.O. Box 8486 Willow Oak Building Harrisburg, PA 17105 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that f e statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unwornsifica 'on i horities. February 20, 2009 DATE ESQUIRE Attorney for Plaintiff C'7 r'`' - ? ?:.? .-=? ?? - t ? --,? ---a - -'' (, _? ? - ?xa ? , ?_ , ?a -;? ?..?? cis Ia. T1 (- ? ???i 1. •. WELLS FARGO FINANCIAL PENNSYLVANIA, INC. Plaintiff, V. HELEN V. SMYTH GENE W. SMYTH Defendant(s). CUMBERLAND COUNTY No. 08-6294 CIVIL TERM February 20, 2009 TO: HELEN V. SMYTH 5% BALTIMORE PIKE GARDNERS, PA 17324-9034 GENE W. SMYTH 5% BALTIMORE PIKE GARDNER.S, PA 17324-9034 "THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCYAND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE ANATTEMPT TO COLLECT A DEBT, BUT ONLYENFORCEMENT OFA LIENAGAINST PROPERTY. ** Your house (real estate) at, 596 BALTIMORE PIKE. GARDNERS, PA 17324-9034, is scheduled to be sold at the Sheriffs Sale on JUNE 10, 2009 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $57,875.97 obtained by WELLS FARGO FINANCIAL PENNSYLVANIA, INC. (the mortgagee) against you. In the event the sale is continued, an announcement will be made at said sale in compliance with Pa.R.C.P., Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriffs Sale, you must take immediate action: The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: (215) 563-7000. 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause. 3. You may also be able to stop the sale through other legal proceedings. You may need an attomey to assert your rights. The sooner you contact one, the more chance you will have of stopping the sale. (See notice on page two on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1. If the Sheriffs Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling (215) 563-7000. 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property. 3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find out if this has happened, you may call (717) 240-6390. 4. If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened. 5. You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A schedule of distribution of the money bid for your house will be filed by the Sheriff within 30 days of the sale. This schedule will state who will be receiving that money. The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the distribution is filed. 7. You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a representative of the plaintiff at the Sheriffs Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 LEGAL DESCRIPTION ALL THAT CERTAIN tract of land situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at an iron pin located at the intersection of the southern boundary of the Appalachian Trail and western right of way line of LR 342; thence along said right of way line south 5 deg east, 61.44 feet to an iron pin; thence along same right of way line south 6 deg 3 min 10 sec east, 55.55 feet to an iron pin; thence by lands of the Grantor south 55 deg 27 min 33 sec west, 56.89 feet to an iron pin; thence along the same north 86 deg 29 min 30 sec west, 43.70 feet to an iron pin; thence along the same south 4 deg west, 205.93 feet to an iron pin at the lands of the Grantor and lands now or formerly of George E. McNew; thence along said lands now or formerly of George E. McNew south 65 deg 46 min 10 west, 35.56 feet to an iron pipe; thence along the same north 30 deg 52 min 10 sec west, 145.05 feet to an iron pipe located on the southern side of the Appalachian Trail; thence by lands now or formerly of T. A. Tichy north 39 deg 41 min 30 sec east, 313.91 feet to an iron pin, being the place of BEGINNING. TITLE TO SAID PREMISES IS VESTED IN Gene W. Smyth, single man, by Deed from Mary R. Smyth, widow, dated 06/02/1977, recorded 12/04/1978 in Book 28-E, Page 443. PREMISES BEING: 596 BALTIMORE PIKE, GARDNERS, PA 17324-9034 PARCEL NO. 40-14-0142-0003A WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 08-6294 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due WE11S FARGO FINANCIAL PENNSYLVANIA, INC., Plaintiff (s) From HELEN V. SMYTH and GENE W. SMYTH (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $57,875.97 L.L. $.50 Interest from 12/31/08 - 6/10/09 (per diem - $9.51) -- $1,540.62 and Costs Atty's Comm % Due Prothy $2.00 Atty Paid $263.17 Other Costs to be Added Plaintiff Paid Date: 2/25/09 s R. Lon, (Seal) By: Deputy REQUESTING PARTY: Name: DANIEL G. SCHMIEG, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F KENNEDY BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 62205 AFFIDAVIT 6F SERVICE PLAINTIFF WELLS FARGO FINANCIAL, CUMBERLAND COUNTY PENNSYLVANIA, INC. No. 08-6294 CIVIL TERM DEFENDANT(S) HELEN V. SMYTg GENE W. SMYTH ACCT. #986328 SERVE HELEN V. SMYTH AT: Type of Action 2405 KNOBgILL ROAD -Notice of Sheriff's Sale YORK, PA 17403 Sale Date: JUNE 10, 2009 SERVED Served and made known to u?7 jf ._? Defendant, on the _?_ day of ??2?Cf , 20011, at 0-1 l-7 , o'clock A.rn., at Z` (2A , Commonwealth of Pennsylvania, in the manner described below: }' Defendant personally served. Adult family member with whom Defendant(s) reside(s). Name and Relationship is _ Adult in charge of Defendant(s)'s residence who refused to give name or relationship. -Manager/Clerk of place of lodging in which Defendant(s) reside(s). Agent or person in charge of Defendant(s)'s office or usual place of business. an officer of said Defendant(s)'s company. Other: Description: Age ? Height 5 y 'P Weight 45 Race fy Sex Other , a competent adult, being duly sworn according to law, depose and state that I personally handed a true and correct copy of the Notice of Sheriff's Sale in the manner as set forth herein, captioned case on the date and at the address indicated above. issued in the Sw to and subs thi of , 200 Notary: a By: S R CE T LEAST 3 TIMES. INDICATE DATES & TIMES OF SERVICE State of New jersey ATTEMPTED. PATRIC' `. E. [-r' IRIS Commission Expires Jung, 16, 2013 NOT SERVED On the day of , 200_, at o'clock _.m., Defendant NOT FOUND because: Moved Unknown No Answer Vacant 1 sf Attempt: Time: 2°`' Attempt: Time: 3rd Attempt: Sworn to and subscribed before me this day Attorney for Plaintiff of200 DANIEL G. SCHi191EG, Esquire - T.D. No. 62205 Notary: One Penn Center at Suburban Station, Suite 1400 By: 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 ?? r THE 26u9 Ail' ?? .I A' 10 ?? PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 WELLS FARGO FINANCIAL PENNSYLVANIA, INC. Plaintiff V. ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County HELEN V. SMYTH No. 08-6294 CIVIL TERM GENE W. SMYTH Defendants PLAINTIFF'S MOTION TO REASSESS DAMAGES Plaintiff, by its Attorney, Michele M. Bradford, Esquire, moves the Court to direct the Prothonotary to amend the judgment in this matter, and in support thereof avers the following: 1. Plaintiff commenced this foreclosure action by filing a Complaint on October 23, 2008, a true and correct copy of which is attached hereto, made part hereof, and marked as Exhibit "A„ 2. Judgment was entered on December 31, 2008 in the amount of $57,875.97. A true and correct copy of the praecipe for judgment is attached hereto, made part hereof, and marked as Exhibit "B". Pursuant to Pennsylvania Rule of Civil Procedure 1037(b)(1), a default judgment containing a dollar amount must be entered for the amount claimed in the complaint and any item which can be calculated from the complaint, i.e. bringing the interest current. However, new items cannot be added at the time of entry of the judgment. 4. The Property is listed for Sheriffs Sale on June 10, 2009. Additional sums have been incurred or expended on Defendants' behalf since the Complaint was filed and Defendants have been given credit for any payments that have been made since the judgment. The amount of damages should now read as follows: Principal Balance $51,592.53 Interest Through June 10, 2009 $7,301.93 Per Diem $12.07 Late Charges $665.72 Legal fees $1,725.00 Cost of Suit and Title $1,696.50 Sheriffs Sale Costs $0.00 Property Inspections/ Property Preservation $0.00 Appraisal/Brokers Price Opinion $0.00 Mortgage Insurance Premium / $0.00 Private Mortgage Insurance Non Sufficient Funds Charge $0.00 Suspense/Misc. Credits ($0.00) Escrow Deficit $0.00 TOTAL $62,981.68 6. The judgment formerly entered is insufficient to satisfy the amounts due on the Mortgage. 7. Under the terms of the Mortgage and Pennsylvania law, Plaintiff is entitled to inclusion of the figures set forth above in the amount of judgment against the Defendants. 8. Plaintiff's foreclosure judgment is in rem only and does not include personal liability, as addressed in Plaintiff s attached brief. 9. In accordance with Cumberland County Local Rule 208.3(9), Plaintiff sent a copy of its proposed Motion to Reassess Damages and Order to the Defendant on April 2, 2009 and requested the Defendants' Concurrence. Plaintiff did not receive any response from the Defendants. A true and correct copy of Plaintiff's letter pursuant to Local Rule 208.3(9) and certification of mailing are attached hereto, made part hereof, and marked as Exhibit "C". 10. No judge has previously entered a ruling in this case. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. / Phelan Hallinan & Schmieg, LLP DATE: `f Z l v 1 By: Michele M. Bradford, Esquire Attorney for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire ATTORNEY FOR PLAINTIFF Atty. I.D. No. 69849 One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 (215) 563-7000 WELLS FARGO FINANCIAL PENNSYLVANIA, Court of Common Pleas INC. Plaintiff Civil Division V. CUMBERLAND County HELEN V. SMYTH No. 08-6294 CIVIL TERM GENE W. SMYTH Defendants MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REASSESS DAMAGES 1. BACKGROUND OF CASE HELEN V. SMYTH and GENE W. SMYTH executed a Promissory Note agreeing to pay principal, interest, late charges, real estate taxes, hazard insurance premiums, and mortgage insurance premiums as these sums became due. Plaintiffs Note was secured by a Mortgage on the Property located at 596 BALTIMORE PIKE, GARDNERS, PA 17324-9034. The Mortgage indicates that in the event a default in the mortgage, Plaintiff may advance any necessary sums, including taxes, insurance, and other items, in order to protect the security of the Mortgage. In the instant case, Defendants defaulted under the Mortgage by failing to tender numerous, promised monthly mortgage payments. Accordingly, after it was clear that the default would not be cured, Plaintiff commenced the instant mortgage foreclosure action. Judgment was subsequently entered by the Court, and the Property is currently scheduled for Sheriffs Sale. Because of the excessive period of time between the initiation of the mortgage foreclosure action, the entry of judgment and the Sheriffs Sale date, damages as previously assessed are outdated and need to be adjusted to include current interest, real estate taxes, insurance premiums, costs of collection, and other expenses which Plaintiff has been obligated to pay under the Mortgage in order to protect its interests. It is also appropriate to give Defendants credit for monthly payments tendered through bankruptcy, if any. II. LEGAL ARGUMENT TO AMEND PLAINTIFF'S IN REM JUDGMENT It is settled law in Pennsylvania that the Court may exercise its equitable powers to control the enforcement of a judgment and to grant any relief until that judgment is satisfied. 20 P.L.E., Judgments § 191. Stephenson v. Butts, 187 Pa.Super. 55, 59, 142 A.2d 319, 321 (1958). Chase Home Mortgage Corporation of the Southwest v. Good, 537 A.2d 22, 24 (Pa.Super. 1988). The Pennsylvania Superior Court has repeatedly cited the right of a foreclosing creditor to amend its judgment prior to the Sheriffs sale. Nationsbanc Mortgage Corp. v. Grillo, 827 A.2d 489 (Pa.Super. 2003). Morgan Guaranty Trust Co. ofN.Y. v. Mowl, 705 A.2d 923 (Pa. Super. 1998). Union National Bank of Pittsburgh v. Ciongoli, 407 Pa. Super. 171, 595 A.2d 179 (1991). The Supreme Court of Pennsylvania recognized in Landau v. Western Pa. Nat. Bank, 445 Pa. 117, 282 A.2d 335 (1971), that the debt owed on a Mortgage is subject to change and, in fact, can be expected to change from day to day because the bank must advance sums in order to protect its collateral. Because a Mortgage lien is not extinguished until the debt is paid, Plaintiff must protect its collateral up until the date of sale. Beckman v. Altoona Trust Co., 332 Pa. 545, 2 A.2d 826 (1939). Because a judgment in mortgage foreclosure is strictly in rem, it is critical that the judgment reflect those amounts expended by the Plaintiff in protecting the property. Meco Reality Company v. Burns, 414 Pa. 495, 200 A.2d 335 (1971). Plaintiff submits that if it goes to sale without the requested amended judgment, and if there is competitive bidding for the Property, Plaintiff will suffer a significant loss in that it would not be able to recoup monies it advanced to protect its interests. Conversely, amending the in rem judgment will not be detrimental to Defendants as it imputes no personal liability. In B.C.Y. v. Bukovich, the Pennsylvania Superior Court reiterated its long standing rule that a Court has the inherent power to correct a judgment to conform to the facts of a case. 257 Pa. Super. 157, 390 A.2d 276 (1978). In the within case, the amount of the original judgment does not adequately reflect the additional sums due on the Mortgage due to Defendants' failure to tender payments during the foreclosure proceeding and the advances made by the mortgage company. The Mortgage plainly requires the mortgagors to tender to the mortgagee monthly payments of principal and interest until the Promissory Note accompanying the Mortgage is paid in full. The mortgagors are also required to remit to the mortgagee sufficient sums to pay monthly mortgage insurance premiums, fire insurance premiums, taxes and other assessments relating to the Property. The mortgagors have breached the terms of the Mortgage, and Plaintiff has been forced to incur significant unjust financial losses on this loan. III. THE FORECLOSURE JUDGMENT IS IN REM ONLY The within case is a mortgage foreclosure action, the sole purpose of which is to take the mortgaged property to Sheriffs Sale. Pennsylvania law makes clear that an action in mortgage foreclosure is strictly in rem and does not include any personal liability. Newtown Village Partnership v. Kimmel, 424 Pa. Super 53, 55, 621 A.2d 1036, 1037 (1993). Signal Consumer Discount Company v. Babuscio, 257 Pa. Super 101, 109, 390 A.2d 266, 270 (1978). Pennsylvania Rule of Civil Procedure 1141(a). However, Pennsylvania law requires that the foreclosure action demand judgment for the amount due. Pa.R.C.P. 1147(6). The purpose of the dollar amount in the in rem judgment is for bidding at the Sheriff s Sale. In the event that a third party real estate speculator were to bid on the mortgaged property at the Sheriffs Sale and become the successful purchaser, Plaintiff would receive the amount of the in rem judgment from the Sheriff. IV. INTEREST The Mortgage clearly requires that the Defendants shall promptly pay when due the principal and interest due on the outstanding debt. In addition, the Note specifies the rate of interest to be charged until the debt is paid in full or otherwise satisfied. Specifically, interest from 30 days prior to the date of default through the date of the impending Sheriff's sale has been requested. V. TAXES AND INSURANCE If Plaintiff had not advanced monies for taxes and insurance throughout the foreclosure proceeding, Plaintiff would have risked loss of its collateral. If the Property were sold at a tax sale, Plaintiffs interest very well may be divested, and Plaintiff would sustain a complete loss on the outstanding balance due on the loan. If the Property were damaged in a fire, Plaintiff would not be able to obtain insurance proceeds to restore the Property if it did not pay the insurance premiums. Most importantly, the Mortgage specifically provides that the mortgagee may advance the monies for taxes and insurance and charge these payments against the escrow account. Plaintiff is simply seeking to have the Court enforce the terms of the Mortgage. VI. ATTORNEY'S FEES The amount of attorney's fees requested in the Motion to Reassess Damages is in accordance with the loan documents and Pennsylvania law. Pennsylvania Courts have long and repeatedly concluded that a request of five percent of the outstanding principal balance is reasonable and enforceable as an attorney's fee. Robinson v. Loomis, 51 Pa. 78 (1865); First Federal Savings and Loan Association v. Street Road Shopping Center, 68 D&C 2d 751, 755 (1974). In Federal Land Bank of Baltimore v. Fetner, the Superior Court held that an attorney's fee of ten percent of the original mortgage amount is not unconscionable. 410 A.2d 344 (Pa. Super. 1979). Recently, the Superior Court cited Fetner in confirming that an attorney's fee of ten percent included in the judgment in mortgage foreclosure action was reasonable. Citicorp v. Morrisville Hampton Realty, 662 A.2d 1120 (Pa. Super. 1995). Importantly, Plaintiff recognizes this Honorable Court's equitable authority to set attorney's fees and costs as it deems reasonable. VII. CONCLUSION Therefore, Plaintiff respectfully submits that if the enforcement of its rights is delayed by legal proceedings, and such delays require the mortgagee to expend additional sums provided for by the Mortgage, then the expenses necessarily become part of the mortgagee's lien and should be included in the judgment. Plaintiff respectfully requests that this Honorable Court grant its Motion to Reassess Damages. Plaintiff submits that it has acted in good faith in maintaining the Property in accordance with the Mortgage, and has relied on terms of the Mortgage with the understanding that it would recover the monies it expended to protect its collateral. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. DATE: 141z- /0,;? Phelan Hallinan & Schmieg, LLP By: Michele M. Bradford, Esquire Attorney for Plaintiff Exhibit "A" PHELAN HALLINAN & SCH IIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 c o FRANCIS S. HALLINAN, ESQ., Id. No. 62695 HIM o DANIEL G. SCH IIEG ESQ. Id. No. 62205 c `' MICHELE M. BRADFORD, ESQ., Id. No. 69849 C ) JUDITH T. ROMANO, ESQ., Id. No. 58745 A SHEETAL SHAH-JANI, ESQ., Id. No. 81760 { c JENINE R. DAVEY, ESQ., Id. No. 87077 LAUREN R. TABAS, ESQ., Id. No. 93337 VIVEK SRIVASTAVA ESQ. Id. No 202331 , , . JAY B. JONES, ESQ., Id. No. 86657 PETER MULCAHY, ESQ., Id. No. 61791 ANDREW SPIVACK, ESQ., Id. No. 84439 JAIME MCGUINNESS, ESQ., Id. No. 90134 ONE PENN CENTER PLAZA, SUITE 1400 ATTORNEY FOR PLAINTIFF PHILADELPHIA, PA 19103 (215) 563-7000 '. 1s632s WELLS FARGO FINANCIAL PENNSYLVANIA, COURT OF COMMON PLEAS INC. 4137121ST STREET CIVIL DIVISION URBANDALE, IA 50323 TERM Pfaintiff V. NO. 08 -&aq# 0'1V?cw'm CUMBERLAND COUNTY HELEN V. SMYTH GENE W. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 We hereby certify the within to be a true and Djefendants 00n`00 COPY of the original filed of record CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 186328 ? A?R? SIp-COPY NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9108 File #: 196328 IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 et seq. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH File M. 196328 THE LAW PROVIDES THAT YOUR ANSWER TO THIS COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL, THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON REAL ESTATE. File #: 186328 1. Plaintiff is WELLS FARGO FINANCIAL PENNSYLVANIA, INC. 4137121ST STREET URBANDALE, IA 50323 2. The name(s) and last known address(es) of the Defendant(s) are: HELEN V. SMYTH GENE W. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described, 3. On 01/15/2007 mortgagor(s) made, executed and delivered a mortgage upon the premis s, hereinafter described to PLAINTIFF which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Book No. 1980, Page 1369. The mortgag,". 'Ili assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from is obligations to attach documents to pleadings if those documents are of public record. 4. The premises subject to said mortgage is described as attached. 5. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 02/20/2008 and each month thereafter are due and unpaid, and by the tin-nn , of said mortgage, upon failure of mortgagor to make such payments after a date specified by written:notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. File #: 186328 6. Principal Balance $50,318.53 Interest $4,592.64 01/20/2008 through 10/21/2008 (Per Diem $16.64) Attorney's Fees $1,250.00 Cumulative Late Charges $0.00 01/15/2007 to 10/21/2008 Cost of Suit and Title Search 550.00 Subtotal $56,711.17 The following amounts are due on the mortgage: Escrow Credit $0.00 Deficit $0.00 Subtotal 0.00 TOTAL $56,711.17 7 If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining prncipn} balance hithe event the property is sold to a third party purchaser at Sheriffs Sale, or t the complexity of the action requires additional fees in excess of the amount demanded Yr. the Action. 8. Plaintiff is not seeking a judgment of personal liability (or an in personam judgment', against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. File #: 186328 9. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homec.wrrer'? Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, arxl/if Notice of Default as required by the mortgage document, as applicable, have been the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaint; l'f or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendanvl the sum of $56,711.17, together with interest from 10/21/2008 at the rate of $16.64 per diem to the date of Judgment, and other costs and charges collectible under the t7 ort u R ge and for the foreclosure and sale of the mortgaged property. PHELAN HALLINAN & SCHMIEG, LLP By: _J LAWRENCE T. PHELAN, ESQUIRE -F11-ANCIS S. HALLINAN, ESQUIRE DANIEL G. SCHMIEG, ESQUIRE MICHELE M. BRADFORD, ESQUIRE JUDITH T. ROMANO, ESQUIRE SHEETAL R. SHAH-JANI, ESQUIRE JENINE R. DAVEY, ESQUIRE LAUREN R. TABAS, ESQUIRE VIVEK SRIVASTAVA, ESQUIRE JAY B. JONES, ESQUIRE PETER MULCAHY, ESQUIRE ANDREW SPIVACK, ESQUIRE JAIME MCGUINNESS, ESQUIRE Attorneys for Plaintiff Filc #: 186328 LEGAL DESCRIPTION LAND REFERRED TO IN THIS COMMITMENT IS DESCRIBED AS ALL THAT CERTAIN PROPERTY SITUATED IN South MIDDLETON TOWNSHIP IN THE COUNTY OF CUMBERLAND, AND STATE OF PA AND BEING DESCRIBED IN A DEED DATED 10/12/2006 AND RECORDED 12/12/2006 IN BOOK 277 PAGE 480 AMONG THE LAND RECORDS OF THE COUNTY AND STATE SET FORTH ABOVE, AND REFERENCED AS FOLLOWS: BEGINNING AT A POINT, THE INTERSECTION OF THE APPALACHIAN TRAIL, SOME'I;INTH S LOCALLY KNOWN AS GREEN Road AND THE CARLISLE, HANOVER TURNPIKE, HIGHWAY ROUTE NO. 94; THENCE IN A Southerly DIRECTION BY THE LINE OF SAID CARLISLE, HANOVER TURNPIKE, ROUTE NO. 94, EIGHTEEN RODS TO A POINT MARKED BY A STATE; THENCE IN A Westerly DIRECTION BY OTHER LANDS OF THE GRANTORS, TWELVE RODS TO A POINT MARKED BY A STAKE; THENCE IN A Westerly DIRECTION BY OTHER LANDS OF THE GRANTORS, TWELVE RODS TO A POINT MARKED BY A STAKE; THENCE IN A Northerly DIRECTION BY OTHER LANDDS OF THE GRANTORS NINE RODS TO A POINT MARKED BY A STAKE AT THE Southern SIDE. OF THE APPALACHIAN TRAIL; THENCE BY LINE OF SAID APPALACHIAN TRAIL IN AN Easterly DIRECTION EIGHTEEN RODS TO THE PLACE OF BEGINNING. CONTAINING ONE (1) ACRE OF LAND, MORE OR LESS. PARCEL NO. 40-14-0142-003A PROPERTY ADDRESS: 596 BALTIMORE PUM File #: 196328 VERIFICATION I hereby state that I am the attorney for Plaintiff in this matter, that Plaintiff is outside the jurisdiction of the court and/or the verification could not be obtained within the time allowed for the filing of the pleading, that I am authorized to make this verification pursuant to Pa.R.C.P. 1024 (c), and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are based upon information supplied by the Plaintiff and are true and correct to the best of my knowledge, information and belief. Furthermore, counsel intends to substitute a verification from Plaintiff upon receipt. The undersigned understands that this statement is made subject to the penalties of 18 Pa.C.S. Sec 4904 relating to unsworn falsifications to authorities. Attorney for Plaintiff DATE: / 0 L 2-0 Q Exhibit "B" Phelan Hallinan & Schmieg, LLP By: Daniel G. Schmieg, Esquire Identification No. 62205 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 WELLS FARGO FINANCIAL PENNSYLVANIA, INC. n a T7 - CD 13 Ci c N s Attorney for Plaintiff - - { : CUMBERLAND COUNTY : COURT OF COMMON PLEAS Y VS. CIVIL DIVISION cop HELEN H AVOR GENE W. . SMYTMYTH No. 08-6294 CIVIL TERM pLEASe RE'-ruR" 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter judgment in favor of the Plaintiff and against HELEN V. SMYTH, and GENE W. SMYTH, Defendant(s) for failure to file an Answer to Plaintiff s Complaint within 20 days from service thereof and for foreclosure and sale of the mortgaged premises, and assess Plaintiffs damages as follows: As set forth in Complaint $56,711.17 Interest -10/22/2008 to 12/30/2008 1 164.80 TOTAL $57,875.97 I hereby certify that (1) the addresses of the Defendant(s) are as shown above, and (2) that notice has been given in accordance with Rule 237. 1, copy attached. Daniel G. Schmieg, Esquire Attorney for Plaintiff DAMAGES. ARE HEREBY ASSESSED AS INDICATED. DATE: PHS # 186328 PRO PROTHY Exhibit "C" v? 'mss 'v o ... c.n ?i ?-. w N ?-. O ?O oo v O? cn a w N ?--• r • ? ? z CD d ? ? O ? x ??jy x o0 W 0o w r, z ;z r Nr ro; ° ? C AC ?*? , H H ? x x w ? N a pe fD o ? ? a . fD ? Y °C y C. H ICI C O ? > Q F'S N O ?p ? O^ O G W l?? 3. ?. w O 0-4 Fy?1 O ,p C O ? O I? N ? "'? O ? 69 `^+ p 0 ti p,oo ? m o o w ?1 l ? ' N ? VV . m w p w Z O G d C a 0 d ? K. K n y n 3 ? ? w w. ? a _. P posT I m ? w ? ? C ,0 = n PITNEY BO W E S - , + ? 02 1M+ • 000421 / H " ° $010 E e_ . MAIL D FRO ?rOC 19 ? y? r h co 0 %0. c ag o ? xz >Cr YCD r v? y 4 ? ? Cr] G7 r c CD O 0 VERIFICATION Michele M. Bradford, Esquire, hereby states that she is the attorney for Plaintiff in this action, that she is authorized to make this verification, and that the statements made in the foregoing Motion to Reassess Damages are true and correct to the best of her knowledge, information and belief. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities. Phelan Hallinan & Schmieg, LLP DATE: z C BY: i Michele M. Bradford, Esquire Attorney for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP by: Michele M. Bradford, Esquire, Atty. I.D. No. 69849 ATTORNEY FOR PLAINTIFF 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 WELLS FARGO FINANCIAL PENNSYLVANIA, INC. Plaintiff V. HELEN V. SMYTH GENE W. SMYTH Defendants Court of Common Pleas Civil Division CUMBERLAND County No. 08-6294 CIVIL TERM CERTIFICATION OF SERVICE I hereby certify that true and correct copies of Plaintiffs Motion to Reassess Damages, and Brief in Support thereof, were sent to the following individuals on the date indicated below. HELEN V. SMYTH GENE W. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 DATE: HELEN V. SMYTH 382 Ridgeview Road Seven Valleys, PA 17360 Phelan Hallinan &Sc ieg, LLP By: t Michele M. Bradford, Esquire Attorney for Plaintiff OF 1 FE P . "' )NOTARY 2009 APP 13 M 9: 4 0 c J ,'4 ;. WELLS FARGO FINANCIAL PENNSYLVANIA, INC., PLAINTIFF V. HELEN V. SMYTH GENE W. SMYTH, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08-6294 CIVIL ORDER OF COURT AND NOW, this 15th day of April, 2009, upon consideration of the Motion to Reassess Damages filed by the Plaintiff, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Defendants to show cause why the relief requested should not be granted; 2. The Defendants will file an answer on or before May 5, 2009; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Plaintiff shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Defendants file an answer to this Rule to Show Cause, the Court will determine if further order or hearing is necessary. 4. The Prothonotary is directed to forward said Answer to this Court. By the Court, Ni\, -?, M. L. Ebert, Jr., J. ichele M. Bradford, Esquire Attorney for Plaintiff len V. Smyth Gene W. Smyth 596 Baltimore Pike Gardners, PA 17324-9034 elen V. Smyth 382 Ridgeview Road Seven Valleys, PA 17360 bas Amo 6 £ :8 WV S 1 M 6001 KdViO;dut' ,' d 3HI 3O 3 i _q r--(Mld WELLS FARGO FINANCIAL, PENNSYLVANIA, INC., Plaintiff V. HELEN V. SMYTH and GENE W. SMYTH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2008-6294 CIVIL TERM CIVIL ACTION - LAW DEFENDANTS' ANSWER TO PLANTIFF'S MOTION TO REASSESS DAMAGES AND NOW, this 29th day of April 2009, come the Defendants, HELEN V. SMYTH and GENE W. SMYTH, by their attorneys, Irwin & McKnight, P.C., and makes the following Answer to Plaintiffs' Motion to Reassess Damages pursuant to Pa R.C.P. 4019(c)(2): 1. The averments of fact contained in paragraph one (1) of the Motion are admitted. 2. The averments of fact contained in paragraph one (1) the Motion are admitted in part and denied in part. It is admitted that judgment was entered on December 31, 2008. It is denied that the mortgage was not satisfied. The mortgage was paid and satisfied when the real estate was sold. A copy of the Mortgage Satisfaction Piece is attached hereto and marked as Exhibit "A". 3. The averments of fact contained in paragraph three (3) of the Motion are admitted. 4. The averments of fact contained in paragraph four (4) of the Motion are admitted. 5. The averments of fact contained in paragraph five (5) of the Motion are specifically denied. On the contrary, additional sums have not been incurred or expended on Defendants' behalf since the Complaint was filed. There are no further damages due and owing to the Plaintiff by the Defendants. 6. The averments of fact contained in paragraph six (6) of the Motion are specifically denied. On the contrary, the mortgage has been satisfied and no further funds are due and owing to the Plaintiff by the Defendants. 7. The averments of fact contained in paragraph seven (7) of the Motion are specifically denied. On the contrary, the Plaintiff is not entitled to the figures set forth in paragraph five (5) of this Motion. 8. The averments of fact contained in paragraph eight (8) of the Motion are admitted. 9. The averments of fact contained in paragraph five (5) of the Motion are admitted. 2 WHEREFORE, the Defendants, Helen V. Smyth and Gene W. Smith, respectfully requests this Honorable Court dismiss this foreclosure action and mark it settled and discontinued. Respectfully submitted, IRWIN & MCKNIGHT, P.C. By: Marc* A. McKn' Knidht, 911, Us- 60 West Pomfret treet Carlisle, Pennsyl 17013 (717) 249-2353 Supreme Court I.D. No. 25476 Attorney for Defendants Date: April 29, 2009 3 EXHMIT "A" Helen Smyth 25 Orange St Mt Holy Springs, PA 17065 RE: Copy of PA Mortgage Satisfaction Piece Dear Wells Fargo Customer: Enclosed please find a copy of the Mortgage Satisfaction Piece that is being sent to the county for recording on your behalf for the mortgage that you recently paid in full. If you paid off this account because you refinanced or if you sold your property and moved to a new home we hope you will consider Wells Fargo in your future financial needs. Thank you for your business, Wells Fargo Wells Fargo Financial, 800 Walnut Street, Des Moines, Iowa 50309 *A division of Wells Fargo Bank, N.A. [0 COPY Prepared by: Wells Fargo Financial 800 Walnut Street Des Moines, IA 50309 Return to: Wells Fargo Financial 800 Walnut Street Des Moines, IA 50309 MAC F4031-080 MORTGAGE SATISFACTION PIECE Made this 7`h day of April, 2009 Name of Mortgagors: Gene W. Smyth and Helen V. Smyth, husband and wife Name of Mortgagee: Wells Fargo Financial Pennsylvania, Inc.. Date of Mortgage: January 15, 2007 Original Mortgage Debt $50,077.74 Mortgage recorded on January 24, 2007, in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Mortgage Book 1980, Page 1369 Mortgaged Premises: SEE ATTACHED EXHIBIT A FOR LEGAL DESCRIPTION Parcel No.: 40-14-0142-003 Address: 596 Baltimore Pike, Gardners, Pennsylvania, 17324 The undersigned certifies that the debt secured by the above-mentioned Mortgage has been fully paid or otherwise discharged and that upon the recording hereof said Mortgage shall be and is hereby fully and forever satisfied and discharged. In witness whereof, the said corporation has caused this instrument to be executed in its name and its common seal to be hereunto affixed the 7'" day of April, 2009 WELLS FARGO FINANCIAL PENNSYLVANIA, INC. -- ByAaQZ40? tthew G. McCurdy, Vice President By ? Diana L. Nizzi, Vice President STATE OF IOWA ) ss: COUNTY OF POLK ) On this the 7`h day of April, 2009, before me, ThyLoR A. clms , the undersigned officer, personally appeared Matthew G. McCurdy and Diana L. Nizzi who acknowledged themselves to be the Vice President and Vice President, respectively, of Wells Fargo Financial Pennsylvania, Inc., a Pennsylvania corporation, and that they, as such officers, being authorized so to do, executed the foregoing instrument for the purposes therein contained, by signing the name of the corporation by themselves as Vice President and Vice President. TAYLOR A. SIMS OMMISSION N0. 5B108 Notary Public ES ISSON EXPIR BER 8 2011 ETOWDECCOEMMM EXHIBIT A LEGAL DESCRIPTION LAND REFERRED TQ IN PHIS dOMMITMEMT IS DESCRIBED AS ALL THAT CERTAIN PROPERTY SITUATED IN SOUTH MIoDU°TON TOWNSHIP IN THE COUNTY OF OUMBPRLANP, AND STATE OF PA AND BEING DESCRI050 IN A DRED DAT91)1011:IJ06 AND RECORDED 12112MM IN BOOK 277 PAGR 480 AMONG THE LAND RECORDS OF THE COUNTY AND STATE, SET FORTH ABOVE, AND REFERENCED As FOLLOW; BEGINNING AT A I DINT, THE IkmRSECTIQN OF THE APPALACHIAN TRAIL, SOME'T'IMES LOCALLY KNOWN AS OWN ROAD AND THS CARLISLE, HANOVER TURNRIKH, HIGHWAY ROUTER NO. 94; THENCE IN A SOUTHERLY DIRECTION RY TFIE LINE OF SAID CARLISLE, HANOVER TURNPIKE, ROUTE NO. 94. EIGHTEEN RODS A POINT KED eY A?STAKE, THENCE IN A WESTERLY DIRECTION BY OTHER LANDS OF THE GR NTORS, Wi RopS TO A POINT MARKEED BY A STAKE; THENCE IN A WESTERLY DIRECTION By OTi1ER LANDS kTHE GRANTORS, TWELVE RODS TO A POW MARKED EY A STAKE: THENCE IN A NORTHERLY DIRECTION BY OTHER LAN133 OF THE GRANTORS NINR RODS TO A POINT MARKED BY A STA 1= AT THE SOUTHERN 3113E OF THE APPALACHIAN TRAIL; THENCE BY LINE OF amp APPALACHAIN TRAIL IN AN EASTERLY DIRECTION FIGHTEEN RODS TO THE PLACE OF BEGINNING. CONTAINING ONE (1) ACRE OF LANG, MORE OR LESS, PARCEL NO. 40-14-0142-003A STATEMENT OF ACCOUNT Please return this portion with your payment © 4830 CARLISLE PIKE, E3 611 MECHANICSBURG, PA 17050-7707 37 <., Send Payment To: (unless your payment is automatically made by preauthorized poyment or preauthorized check.) Statement Date 04/03/09 C2 60521 Next Payment Due Date NONE Illslslslnuslllslnullslssltl?nllsslsslgill lnlssltulll Total Payment Due 0.00 WELLS FARGO FINANCIAL Account Number 86155406 P.O. BOX 98784 LAS VEGAS, NV 89193-8784 005189 HELEN V SMYTH .25 ORANGE ST 0020/001 MT HOLY SPRINGS,PA 17065-1722 86155406000585707901115070000000000861554067 Are there a few projects you need to tackle this spring? Wells Fargo Financial offers convenient options for your financial needs. We can help you get financing for a winter clean up project, home improvement projects and more. To find out how, call 1-800-945-9462, reservation code 2368, to speak with a Wells Fargo financial credit manager today! 'WELLS FARGO FINANCIAL Your account is serviced by Wells Fargo Bank, N.A. 4830 CARLISLE PIKE, E3 611 Statement Date 04/03/09 MECHANICSBURG, PA 17050-7707 Regular Payment Amount 605.21 Previous Balance 50643.13 Payments received after date of this statement will be shown on next statement. Account Number 86155406 Trans.Code" Date Amount Charges or Interest Principal Unpaid Balance 14 04/03/09 37.00- 37.00- 50680.13 01 04/03/09 37.00 37.00 50643.13 14 04/03/09 330.00- 4 330.00- 50973.13 01 04/03/09 330.00 330.00 50643.13 01 04/03/09 58570.79 6802.63 51768.16 1125.03- 13 04/03/09 1125.03 1125.03 .00 `See other side for list of Transaction Codes Unpaid Amountof Delinquent Next Payment Regular Amount Due Date Payment Due NONE "Visit us online at wwwtwllslarp hnancialcom" 2075 JOti Notice: See rewrsa side for important information. Deferment and/or Monthly Total Amount Delinquency Insurance Due on Next Charge Due Premiums Payment Due Date 0.00 0.00 In addition to the local phone number shown above, our national toll-free customer service number is 800-348-3008. VERIFICATION The foregoing document is based upon information which has been gathered by my counsel and myself in the preparation of this action. I have read the statements made in this document and they are true and correct to the best of my knowledge, information and belief. I 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. j/ ?v ' k?Ua -A HELEN V. SMYTH GENE W. SMYTH Date: April 29, 2009 WELLS FARGO FINANCIAL, PENNSYLVANIA, INC., Plaintiff V. HELEN V. SMYTH and GENE W. SMYTH, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 2008-6294 CIVIL TERM CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached document was served upon the following by depositing a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: Michele M. Bradford, Esq. PHELAN HALLINAN & SCHMIEG, LLP One Penn Center, Suite 1400 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 IRWIN & McKNIGHT, P.C. By: Marcits A. M fight, , squire 60 West Po et Street Carlisle, PA 17013 (717)249-23 Supreme Court I. _WU ).5 76 Date: April 29, 2009 roc T? , L =.,.' - ., , ?,•??,??,' 2019 APR 30 P J :' ;. WELLS FARGO FINANCIAL PENNSYLVANIA, INC. , S. , Plaintiff, V. , HELEN V. SMYTH GENE W. SMYTH Defendant(s). CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION NO. 08-6294 CIVIL TERM AFFIDAVIT PURSUANT TO RULE 3129.1 WELLS FARGO FINANCIAL PENNSYLVANIA, INC., Plaintiff in the above action, by its attorney, DANIEL G. SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at ,596 BALTIMORE PIKE, GARDNERS, PA 17324-9034. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) HELEN V. SMYTH GENE W. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 2. Name and address of Defendant(s) in the judgment: Same as above 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 4. Name and address of last recorded holder of every mortgage of record: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) TRANSAMERICA FINANCIAL CONSUMER DISCOUNT CO. 2555 KINGSTON BLVD; STE. 140 YORK, PA 17402 In the Court of Common Pleas of Cumberland County, Pennsylvania Writ No. 2008-6294 Civil Term Wells Fargo Financial Pennsylvania, Inc. Vs Helen V. Smyth and Gene W. Smyth Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on March 9 2009 at 1539 hours, she served a true copy of the within Real Estate Writ, Notice and Description, in the above entitled action, upon the within named defendants, to wit: Helen V. Smyth and Gene W. Smyth, by making known unto Dorothy Bent, sister and as adult in charge, at, 25 Orange Street, Mount Holly Springs, Cumberland County, Pennsylvania its contents and at the same time handing to her personally the said true and correct copy of the same. Amanda Cobaugh, Deputy Sheriff, who being duly sworn according to law, states that on April 9, 2009 at 1214 hours, she posted a true copy of the within Real Estate Writ, Notice, Poster and Description, in the above entitled action, upon the property of Helen V. Smyth and Gene W. Smyth, located at, 596 Baltimore Pike, Gardners, Cumberland County Pennsylvania, according to law. Thomas Kline, Sheriff, who being duly sworn according to law, states he served the above Real Estate Writ, Notice, Poster and Description in the following manner: The Sheriff mailed a notice of the pendency of the action to the within named defendants, to wit: Helen V. Smyth and Gene W. Smyth, by regular mail to their last known address of 25 Orange Street, Mount Holly Springs, PA 17324. This letter was mailed under the date of April 2, 2009 and never returned to the Sheriff s Office R. Thomas Kline, who being duly sworn according to law, states that this writ is returned STAYED. Sheriff's Costs Docketing 30.00 Poundage 1,171.42 Posting Bills 15.00 Advertising 15.00 Law Library .50 Prothonotary 2.00 Mileage 10.80 Levy 15.00 Surcharge 30.00 Share of bills 15.43 ? L /?4 ?0 9 1,305.15 So Answer 011 R. Thomas Kline, Sheriff i By. Real s ate Coordinator n c ?.a n co ?_ "0 (- ?k1. C - 70/45' Or ?v .t y y V qJ WELLS FARGO FINANCIAL PENNSYLVANIA, INC. CUMBERLAND COUNTY Plaintiff, COURT OF COMMON PLEAS V. CIVIL DIVISION HELEN V. SMYTH GENE W. SMYTH NO. 08-6294 CIVIL TERM Defendant(s). AFFIDAVIT PURSUANT TO RULE 3129.1 WELLS FARGO FINANCIAL PENNSYLVANIA, INC., Plaintiff in the above action, by its attorney, DANIEL G. SCHMIEG, ESQUIRE, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at ,596 BALTIMORE PIKE, GARDNERS, PA 17324-9034. 1. Name and address of Owner(s) or reputed Owner(s): Name Last Known Address (if address cannot be reasonably ascertained, please indicate) HELEN V. SMYTH GENE W. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 2. Name and address of Defendant(s) in the judgment: Same as above 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 4. Name and address of last recorded holder of every mortgage of record: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) TRANSAMERICA FINANCIAL CONSUMER DISCOUNT CO. 2555 KINGSTON BLVD; STE. 140 YORK, PA 17402 5. Name and address of every other person who has any record lien on the property: !. Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name Last Known Address (if address cannot be reasonably ascertained, please indicate) None 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Last Known Address (if address cannot be reasonably ascertained, please indicate) Tenant/Occupant Domestic Relations of Cumberland County Commonwealth of Pennsylvania Department of Welfare Commonwealth of Pennsylvania Bureau of Individual Tax Inheritance Tax Division Internal Revenue Service Federated Investors Tower Department of Public Welfare TPL Casualty Unit Estate Recovery Program 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 13 North Hanover Street Carlisle, PA 17013 PO Box 2675 Harrisburg, PA 17105 6th Floor, Strawberry Sq., Dept. 28061 Harrisburg, PA 17128 13th Floor, Suite 1300 1001 Liberty Avenue Pittsburgh, PA 15222 P.O. Box 8486 Willow Oak Building Harrisburg, PA 17105 I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand th=n tements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unworn ;arAi thorities. February 20, 2009 DATE JANH1jGKSCHMIM, ESQUIRE Attorney for Plaintiff 00, WELLS FARGO FINANCIAL PENNSYLVANIA, INC. Plaintiff, V. CUMBERLAND COUNTY No. 08-6294 CIVIL TERM HELEN V. SMYTH GENE W. SMYTH Defendant(s). February 20, 2009 TO: HELEN V. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 GENE W. SMYTH 596 BALTIMORE PIKE GARDNERS, PA 17324-9034 "THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE ANA 7TEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. * * Your house (real estate) at, 596 BALTIMORE PIKE, GARDNERS, PA 17324-9034, is scheduled to be sold at the Sheriff s Sale on JUNE 10, 2009 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $57,875.97 obtained by WELLS FARGO FINANCIAL PENNSYLVANIA, INC. (the mortgagee) against you. In the event the sale is continued, an announcement will be made at said sale in compliance with Pa.R.C.P., Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriffs Sale, you must take immediate action: 1. The sale will be cancelled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: (215) 563-7000. 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause. 3. You may also be able to stop the sale through other legal proceedings. 0' You may need an attorney to assert your rights. The sooner you contact one, the more chance you will have of stopping the sale. (See notice on page two on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1. If the Sheriffs Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling (215) 563-7000. 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property. 3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find out if this has happened, you may call (717) 240-6390. 4. If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened. 5. You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A schedule of distribution of the money bid for your house will be filed by the Sheriff within 30 days of the sale. This schedule will state who will be receiving that money. The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the distribution is filed. 7. You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be sold in the absence of a representative of the plaintiff at the Sheriffs Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 LEGAL DESCRIPTION ALL THAT CERTAIN tract of land situate in South Middleton Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at an iron pin located at the intersection of the southern boundary of the Appalachian Trail and western right of way line of LR 342; thence along said right of way line south 5 deg east, 61.44 feet to an iron pin; thence along same right of way line south 6 deg 3 min 10 sec east, 55.55 feet to an iron pin; thence by lands of the Grantor south 55 deg 27 min 33 sec west, 56.89 feet to an iron pin; thence along the same north 86 deg 29 min 30 sec west, 43.70 feet to an iron pin; thence along the same south 4 deg west, 205.93 feet to an iron pin at the lands of the Grantor and lands now or formerly of George E. McNew; thence along said lands now or formerly of George E. McNew south 65 deg 46 min 10 west, 35.56 feet to an iron pipe; thence along the same north 30 deg 52 min 10 sec west, 145.05 feet to an iron pipe located on the southern side of the Appalachian Trail; thence by lands now or formerly of T. A. Tichy north 39 deg 41 min 30 sec east, 313.91 feet to an iron pin, being the place of BEGINNING. TITLE TO SAID PREMISES IS VESTED IN Gene W. Smyth, single man, by Deed from Mary R. Smyth, widow, dated 06/02/1977, recorded 12/04/1978 in Book 28-E, Page 443. PREMISES BEING: 596 BALTIMORE PIKE, GARDNERS, PA 17324-9034 PARCEL NO. 40-14-0142-0003A WRIT OF EXECUTION and/or ATTACHMENT COMMONWEACFH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 08-6294 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due WEIIS FARGO FINANCIAL PENNSYLVANIA, INC., Plaintiff (s) From HELEN V. SMYTH and GENE W. SMYTH (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof, (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $57,875.97 L.L. $.50 Interest from 12/31/08 - 6/10/09 (per diem - $9.51) - $1,540.62 and Costs Atty's Comm % Atty Paid $263.17 Plaintiff Paid Date: 2/25/09 (Seal) REQUESTING PARTY: Name: DANIEL G. SCHMIEG, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG Due Prothy $2.00 Other Costs to be Added Curtis R4ro onot By: Deputy ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F KENNEDY BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103-1814 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 62205 '4 O%Aft IWA PY FROM REIGO " I"T ft" w1w ,Ihasunto aft€r , a, Wd NOM 94W Cowl at W", Pa. Real Estate Sale # 77 On February 27, 2009 the Sheriff levied upon the defendant's interest in the real property situated in South Middleton Township, Cumberland County, PA Known and numbered as 596 Baltimore Pike, Gardners, More fully described on Exhibit "A" filed with this writ and by this reference incorporated herein. Date: February 27, 2009 By: N4?2t? ?' -&?