HomeMy WebLinkAbout08-7233PHELAN HALLINAN & SCHMIEG, LLP
LAWRENCE T. PHELAN, ESQ., Id. No. 32227
FRANCIS S. HALLINAN, ESQ., Id. No. 62695
DANIEL G. SCHMIEG, ESQ., Id. No. 62205
MICHELE M. BRADFORD, ESQ., Id. No. 69849
JUDITH T. ROMANO, ESQ., Id. No. 58745
v/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 192826
WELLS FARGO BANK, N.A.
3476 STATEVIEW BOULEVARD
FORT MILL, SC 29715
Plaintiff
V.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050
Defendants
ATTORNEY FOR PLAINTIFF
COURT OF COMMON PLEAS
CIVIL DIVISION
TERM
NO. 08 -7,A,33 Civil Tern
CUMBERLAND COUNTY
CIVIL ACTION - LAW
COMPLAINT IN MORTGAGE FORECLOSURE
File #: 192826
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
(717) 249-3166
File #: 192826
1. Plaintiff is
WELLS FARGO BANK, N.A.
3476 STATEVIEW BOULEVARD
FORT MILL, SC 29715
2. The name(s) and last known address(es) of the Defendant(s) are:
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050
who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described.
3. On 05/22/2006 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. 1952, Page 110. A copy of the
Mortgage is attached as Exhibit "A".
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 08/01/2008 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 #: 192826
6
The following amounts are due on the mortgage:
Principal Balance $243,389.99
Interest $6,481.62
07/01/2008 through 12/09/2008
(Per Diem $40.01)
Attorney's Fees $1,325.00
Cumulative Late Charges $299.76
05/22/2006 to 12/09/2008
Cost of Suit and Title Search 750.00
Subtotal $252,246.37
Escrow
Credit ($168.78)
Deficit $0.00
Subtotal 168.78
TOTAL $252,077.59
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 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 #: 192826
9. The mortgage premises are vacant and abandoned.
WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum
of $252,077.59, together with interest from 12/09/2008 at the rate of $40.01 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:
LAWRENC T. PH L , ESQUIRE
FRANCIS S. HALL , 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
CHRISTOVALANTE P. FLIAKOS, ESQUIRE
Attorneys for Plaintiff
File #: 192826
/ 7O-7 ?C
?c:PT P. ZIEGLE;K
66 I IhY 26 HM 1105
Prepared by:
KEVIN M. ELY
WELLS FARGO BANS(, NA.
2701 WELLS FARGO WAY
MINNEAPOLIS, MN 55427
Return To:
WELLS FARGO BAN NA.
FINAL OOCUMINM g9!
1000 BLUE GENTIAN ROAD
EAGAN, MN 56121-1663
Premises:
1 RUN CROSS LANE
LA, PA 170!6
Parcel Number: ((?t?-'(e..,
Space Above This Une For Recordling Data
MORTGAGE
0i5111102106
DEFINITIONS
Words used in multiple sections of this document are defined below and other words are
defined in Sections 3, 11, 13, 18, 20 and 21. Certain rules regarding the usage of words used
In this document are also provided In Section 18.
(A) "Security Insbvnwnt" means this document, which Is dated MAY 22, 2006
together with all Riders to this document.
(B) "Borrows" Is
STEVEN BRETT OSBORNE AND SUSAN E BARTAK, A MARRIED COUPLE
Borrower is the mortgagor under this Security Instrument.
(C) "Lender" Is WELLS FARGO BANK, N.A.
Lender Is a National Assoclrlthm
organized and existing under the laws of THE UNITED STATES OF AMERICA
PENNSYLVANIA- Single Family - Fools UsWipreddle &W tN IFOW INSTRUMENT NORM aoas 1101
Page 1 of is initials: 5%, SPAg1A nev 04!01/05
11?0 EXHIBITA
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Lender's address Is
P. 0. BOX 5197, DES MOINES, IA 50106-5197
Lender is the mortgagee under this Security Instrument.
(D) "Nob " means the promissory note signed by Borrower and dated MAY 22, 2006
The Note states that Borrower owes Lender Two HUNDRED FIFTY THOUSAND AND
N01100 Dollars
(U.S. S ..... WMQQ............ ) plus interest. Borrower has promised to pay this debt in regular
Periodic Payments and to pay the debt in full not later than JUNE 1, 2068
(E) "Property" means the property that Is described below under the heading 'Transfer of
Rights in the Property."
(F) "Loan" means the debt evidenced by the Note, plus interest, any prepayment charges
and late charges due under the Note, and all sums due under this Security Instrument, plus
interest.
(G) "Riders" means all Alders to this Security Instrument that are executed by Borrower.
The following Riders are to be executed by Borrower [check box as applicable):
? Adjustable Rate Rider Q Condominium Rider E3 Second Home Rider
0 Balloon Alder ® Planned Unit Development Rider ? 1-4 Family Rider
? VA Rider Q Biweekly Payment Rider ? Other(s) (specify)
(H) "Applicable Law" means all controlling applicable federal, state and local statutes,
regulations, ordinances and administrative rules and orders (that have the effect of law) as
well as all applicable final, non-appealable judicial opinions.
(1) "Community AssoclaUon Duns, Feet, and Asesesmetrts" means all dues, fees,
assessments and other charges that are Imposed on Borrower or the Property by a
condominium association, homeowners association or similar organization.
(J) "Electronic Funds Transfer" means any transfer of funds, other than a transaction
originated by check, draft, or similar paper instrument, which Is initiated through an
electronic terminal, telephonic instrument, computer, or magnetic tape so as to order,
instruct, or authorize a financial Institution to debit or credit an account. Such term Includes,
but is not limited to, point-of-sals transfers, automated tailor machine transactions, transfers
Initiated by telephone, wire transfers, and automated clearinghouse transfers.
(K) "Escrow ibmt" means those items that are described In Section S.
(L) "Miscellaneous Proceeds" means any compensation, settlement, award of damages, or
proceeds paid by any third party (other than Insurance proceeds paid under the coverages
described In Section 5) for. (1) damage to, or destruction of, the Property; (II) condemnation
or other taking of all or any part of the Property; (Iii) conveyance in lieu of condemnation; or
(iv) misrepresentations of, or omissions as to, the value and/or condition of the Property.
(M) "Mortpgo insurance" means insurance protecting Lender against the nonpayment of,
or default on, the Loan.
(N) "Periodic PaynwW means the regularly scheduled amount due for (I) principal and
interest under the Note, plus (ii) any amounts under Section 3 of this Security Instrument.
SPA02 Rev 1218100
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-4
(O) "RESPA" means the Real Estate Settlement Procedures Act (12 U.S.C. Section 2601 at
seq.) and its Implementing regulation, Regulation X (24 C.F.R. Part 3600), as they might be
amended from time to time, or any additional or successor legislation or regulation that
governs the same subject matter. As used in this Security Instrument, "RESPA" refers to all
requirements and restrictions that are imposed in regard to a "federally related mortgage
loan" even if the Loan does not qualify as a "federally related mortgage ban" under RESPA.
(P) "Successor In Intarast at Borrower" means any party that has taken title to the Property,
whether or not that party has assumed Borrower's obligations under the Note and/or this
Security Instrument.
TRANSFER OF RIGHTS IN THE PROPERTY
This Security Instrument secures to Lender. (1) the repayment of the Loan, and all renewals,
extensions and modifications of the Nate; and (ii) the performance of Borrower's convenants
and agreements under this Security Instrument and the Note. For this purpose, Borrower
does hereby mortgage, grant and convey to Lender the following described property located
in the County of CUMBERLAND
(Type of Recording Jurisdiction) [Name of Recording Jurisdiction)
LEGAL DESCRIPTION IS ATTACHED HERETO AS SCHEDULE "A" AND MADE A
PART HEREOF.
THIS IS A PURCHASE MONEY (MORTGAGE.
which currently has the address of
6415 RUN CROSS LANE [Street)
ENOLA [City), Pennsylvania 17026 [Zip Code]
("Property Address"):
TOGETHER WITH all the improvements now or hereafter erected on the property, and
all easements, appurtenances, and fixtures now or hereafter a part of the property. All
replacements and additions shall also be covered by this Security Instrument. All of the
foregoing is referred to in this Security Instrument as the 'Property.'
SPA03 Rey 11/03/00
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BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed
and has the right to mortgage, grant and convey the Property and that the Property is
unencumbered, except for encumbrances of record. Borrower warrants and will defend
generally the title to the Property against all claims and demands, subject to any
encumbrances of record.
THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-
uniform covenants with limited variations by jurisdiction to constitute a uniform security
instrument covering real property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1. Payment of Principal, Intweet, Escrow ftrns, PropaprtMM Charges, and Late Charges.
Borrower shall pay when due the principal of, and interest on, the debt evidenced by the
Note and any prepayment charges and late charges due under the Note. Borrower shall
also pay funds for Escrow Items pursuant to Section 3. Payments due under the Note and
this Security Instrument shall be made in U.S. currency. However, if any check or other
instrument received by Lender as payment under the Note or this Security Instrument is
returned to Lender unpaid, Lender may require that any or all subsequent payments due
under the Note and this Security Instrument be made In one or more of the following forms,
as selected by Lender. (a) cash; (b) money order; (c) certified check, bank check, treasurer's
check or cashier's check, provided any such check Is drawn upon an institution whose
deposits are Insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds
Transfer.
Payments are deemed received by Lender when received at the location designated in
the Note or at such other location as may be designated by Lender in accordance with the
notice provisions in Section 15. Lender may return any payment or partial payment if the
payment or partial payments are insufficient to bring the Loan current. Lender may accept
any payment or partial payment insufficient to bring the Loan current, without waiver of any
rights hereunder or prejudice to its rights to refuse such payment or partial payments in the
future, but Lender is not obligated to apply such payments at the time such payments are
accepted. If each Periodic Payment Is applied as of its scheduled due date, then Lender
need not pay interest on unapplied funds. Lender may hold such unapplied funds until
Borrower makes payment to bring the Loan. currant. If Borrower does not do so within a
reasonable period of time, Lender shall either apply such funds or return them to Borrower.
If not applied eadler, such funds will be applied to the outstanding principal balance under
the Note immediately prior to foreclosure. No offset or claim which Borrower might have
now or In the future against Lender shall relieve Borrower from making payments due under
the Note and this Security Instrument or performing the covenants and agreements secured
by this Security Instrument.
2. Applk lion of Payments or Proceeds. Except as otherwise described in this Section 2,
all payments accepted and applied by Lender shall be applied in the following order of
priority: (a) interest due under the Note; (b) principal due under the Note; (c) amounts due
under Section 3. Such payments shall be applied to each Periodic Payment in the order in
which it became due. Any remaining amounts shalt be applied first to late charges, second
to any other amounts due under this Security Instrument, and then to reduce the principal
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balance of the Note.
If Lender receives a payment from Borrower for a delinquent Periodic Payment which
includes a sufficient amount to pay any late charge due, the payment may be applied to the
delinquent payment and the late charge, if more than one Periodic Payment is outstanding,
Lender may apply any payment received from Borrower to the repayment of the Periodic
Payments if, and to the extent that, each payment can be paid In full. To the extent
that any excess exists alter the payment Is applied to the full payment of one or more
Periodic Payments, such excess may be applied to any late charges due. Voluntary
prepayments shall be applied first to any prepayment charges and then as described in the
Note.
Any application of payments, insurance proceeds, or Miscellaneous Proceeds to
principal due under the Note shall not extend or postpone the due date, or change the
amount, of the Periodic Payments.
3. Funds for Escrow Ibms. Borrower shall pay to Lender on the day Periodic Payments
are due under the Note, until the Note is paid in full, a sum (the 'Funds') to provide for
payment of amounts due for. (a) taxes and assessments and other items which can attain
priority over this Security instrument as a lion or encumbrance on the Property; (b)
leasehold payments or ground rents on the Property, if any; (c) premiums for any and all
Insurance required by Lender under Section 5; and (d) Mortgage Insurance premiums, if
any, or any sums payable by Borrower to Lender In lieu of the payment of Mortgage
Insurance premiums in accordance with the provisions of Section 10. These items are called
"Escrow Items.' At origination or at any time during the term of the Loan, Lender may
require that Community Association Dues, Fees, and Assessments, if any, be escrowed by
Borrower, and such dues, fees and assessments shall be an Escrow It6m. Borrower shall
promptly furnish to Lender all notices of amounts to be paid under this Section. Borrower
shall pay Lender the Funds for Escrow items unless Lender waives Borrower's obligation to
pay the Funds for any or all Escrow Items. Lender may waive Borrower's obligation to pay
to Lender Funds for any or all Escrow items at any time. Any such waiver may only be In
writing. In the event of such waiver, Borrower shall pay directly, when and where payable,
the amounts due for any Escrow Items for which payment of Funds has been waived by
Lender and, If Lender requires, shall furnish to Lender receipts evidencing such payment
within such time period as Lender may require. Borrower's obligation to make such
payments and to provide receipts shall for all purposes be deemed to be a covenant and
agreement contained in this Security Instrument, as the phrase "covenant and agreement"
Is used In Section 9. If Borrower is obligated to pay Escrow Items directly, pursuant to a
waiver, and Borrower fails to pay the amount due for an Escrow Item, Lender may exercise
its rights under Section 9 and pay such amount and Borrower shall then be obligated under
Section 9 to repay to Lender any such amount. Lender may revoke the waiver as to any or
all Escrow items at any time by a notice given in accordance with Section 15 and, upon such
revocation, Borrower shall pay to Lender all Funds, and In such amounts, that are then
required under this Section 3.
Lender may, at any time, collect and hold Funds in an amount (a) sufficient to permit
Lender to apply the Funds at the time specified under FIESPA, and (b) not to exceed the
SPA05 Rev 11103100
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maximum amount a lender can require under RESPA. Lender shall estimate the amount of
Funds due on the basis of current data and reasonable estimates of expenditures of future
Escrow items or otherwise in accordance with Applicable Law.
The Funds shall be held in an institution whose deposits are Insured by a federal
agency, instrumentality, or entity (including Lender, If Lender is an Institution whose
deposits are so Insured) or In any Federal Home Loan Bank. Lender shall apply the Funds
to pay the Escrow items no later than the time speoilled under RESPA. Lender shall not
charge Borrower for holding and applying the Funds, annually analyzing the escrow
account, or verifying the Escrow items, unless Lender pays Borrower interest on the Funds
and Applicable Law permits Lender to make such a charge. Unless an agreement Is made
in writing or Applicable Law requires interest to be paid on the Funds, Lender shall not be
required to pay Borrower any Interest or earnings on the Funds. Borrower and Lender can
agree In writing, however, that Interest shall be paid on the Funds. Lender shall give to
Borrower, without charge, an annual accounting of the Funds as required by RESPA.
If there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall
account to Borrower for the excess funds in accordance with RESPA. If there Is a shortage
of Funds held in escrow, as defined under RESPA, Lender shall notify Borrower as required
by RESPA, and Borrower shall pay to Lender the amount necessary to make up the
shortage in accordance with RESPA, but In no more than 12 monthly payments. If there is a
deficiency of Funds held in escrow, as defined under RESPA. Lender shall notify Borrower
as required by RESPA, and Borrower shall pay to Lender the amount necessary to make up
the deficiency In accordance with RESPA, but In no more than 12 monthly payments.
Upon payment In full of all sums secured by this Security Instrument, Lender shall
promptly refund to Borrower any Funds held by Lender.
4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines, and
impositions attributable to the Property which can attain priority over this Security
Instrument, leasehold payments or ground rents on the Property, if any, and Community
Association Dues, Fees, and Assessments, if any. To the extent that these items are Escrow
Items, Borrower shall pay them In the manner provided in Section 8.
Borrower shall promptly discharge any lien which has priority over this Security
Instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured
by the lien in a manner acceptable to Lender, but only so long as Borrower is performing
such agreement; (b) contests the lien in good faith by, or defends against enforcement of
the lien in, legal proceedings which in Lender's opinion operate to prevent the enforcement
of the lien while those proceedings are pending, but only until such proceedings are
concluded; or (c) secures from the holder of the lien an agreement satisfactory to Lender
subordinating the lien to this Security Instrument. If Lender determines that any part of the
Property Is subject to a lien which can attain priority over this Security Instrument, Lender
may give Borrower a notice identifying the lien. Within 10 days of the date on which that
notice is given, Borrower shall satisfy the lien or take one or more of the actions set forth
above in this Section 4.
Lender may require Borrower to pay a one-time charge for a real estate tax verification
and/or reporting service used by Lender In connection with this Loan.
SPA06 Rev 10/05/00
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S. Property Insurance. Borrower shall keep the improvements now existing or hereafter
erected on the Property Insured against loss by fire, hazards included within the term
"extended coverage," and any other hazards including, but not limited to, earthquakes and
floods, for which Lender requires Insurance. This Insurance shall be maintained in the
amounts (including deductible levels) and for the periods that Lender requires. What
Lender requires pursuant to the preceding sentences can change during the term of the
Loan. The insurance carrier providing the insurance shall be chosen by Borrower subject to
Lender's right to disapprove Borrower's choice, which right shall not be exercised
unreasonably. Lender may require Borrower to pay; in connection with this Loan, either.
(a) a one-time charge for flood zone determination, certM atlon and tracking services; or (b)
a one-time charge for flood zone determination and certification services and subsequent
charges each time remappings or similar changes occur which reasonably might affect such
determination or certification. Borrower shall also be responsible for the payment of any
fees imposed by the Federal Emergency Management Agency in connection with the review
of any flood zone determination resulting from an objection by Borrower.
If Borrower fails to maintain any of the coverages described above, Lender may obtain
insurance coverage, at Lender's option and Borrower's expense. Lender Is under no
obligation to purchase any particular type or amount of coverage. Therefore, such coverage
shall cover Lender, but might or might not protect Borrower, Borrower's equity in the
Property, or the contents of the Property, against any risk, hazard or liability and might
provide greater or lesser coverage than was previously In effect. Borrower acknowledges
that the cost of the insurance coverage so obtained might significantly, exceed the cost of
insurance that Borrower could have obtained. Any amounts disbursed by Lender under
this Section 5 shall become additional debt of Borrower secured by this Security Instrument.
These amounts shall bear Interest at the Note rate from the date of disbursement and shall
be payable, with such interest, upon notice from Lender to Borrower requesting payment.
All Insurance policies required by Lender and renewals of such policies shall be subject
to Lender's right to disapprove such policies, shall include a standard mortgage clause, and
shall name Lender as mortgagee and/or as an additional loss payee. Lender shall have the
right to hold the policies and renewal certificates. If Lender requires, Borrower shall
promptly give to Lender all receipts of paid premiums and renewal notices. If Borrower
obtains any form of insurance coverage, not otherwise required by Lender, for damage to,
or destruction of, the Property, such policy shall include a standard mortgage clause and
shall name Lender as mortgagee and/or as an additional loss payee.
In the event of loss, Borrower shall give prompt notice to the insurance carrier and
Lender. Lender may make proof of loss If not made promptly by Borrower. Unless Lender
and Borrower otherwise agree in writing, any Insurance proceeds, whether or not the
underlying insurance was required by Lender, shall be applied to restoration or repair of the
Property, if the restoration or repair is economically feasible and Lender's security is not
lessened. During such repair and restoration period, Lender shall have the right to hold
such Insurance proceeds until Lender has had an opportunity to inspect such Property to
ensure the work has been completed to Lender's satisfaction, provided that such inspection
shall be undertaken promptly. Lender may disburse proceeds for the repairs and restoration
SPA07 Rev 10/05/00
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In a single payment or in a series of progress payments as the work is completed. Unless
an agreement Is made In writing or Applicable Law requires Interest to be paid on such
Insurance proceeds, Lender shall not be required to pay Borrower any interest or earnings
on such proceeds. Fees for public adjusters, or other third parties, retained by Borrower
shall not be paid out of the insurance proceeds and shall be the sole obligation of Borrower.
If the restoration or repair Is not economically feasible or Lenders security would be be
lessened, the insurance proceeds shall be applied to the sums secured by this Security
Instrument, whether or not then due, with the excess, if any, paid to Borrower. Such
Insurance proceeds shall be applied in the order provided for in Section 2.
If Borrower abandons the Property, Lender may file, negotiate and settle any available
Insurance claim and related matters. If Borrower does not respond within 30 days to a
notice from Lender that the Insurance carrier has offered to settle a claim, then Lender may
negotiate and settle the claim. The 30-day period will begin when the notice is given. In
either event, or If Lender acquires the Property under Section 22 or otherwise, Borrower
hereby assigns to Lender (a) Borrower's rights to any Insurance proceeds in an amount not
to exceed the amounts unpaid under the Note or this Security Instrument, and (b) any other
of Borrower's rights (other than the right to any refund of unearned premiums paid by
Borrower) under all insurance policies covering the Property, Insofar as such rights are
applicable to the coverage of the Property, Lender may use the Insurance proceeds either
to repair or restore the Property or to pay amounts unpaid under the Note or this Security
Instrument, whether or not then due.
6. Occupancy. Borrower shall occupy, establish, and use the Property as Borrower's
principal residence within 60 days alter the execution of this Security Instrument and shall
continue to occupy the Property as Borrower's principal residence for at least one year ater
the date of occupancy, unless Lender otherwise agrees In writing, which consent shall not
be unreasonably withheld, or unless extenuating circumstances exist which are beyond
Borrowers control.
7. Presomllon, Makdonance and Pr+oloctlon of ton property; Inspections. Borrower
shall not destroy, damage or Impair the Property, allow the Property to deteriorate or
commit waste on the Property. Whether or not Borrower is residing In the Property,
Borrower shall maintain the Property in order to prevent the Property from deteriorating or
decreasing in value due to Its condition. Unless it is determined pursuant to Section 5 that
repair or restoration Is not economically feasible, Borrower shall promptly repair the
Property if damaged to avoid further deterioration or damage. If insurance or condemnation
proceeds are paid in connection with damage to, or the taking of, the Property, Borrower
shall be responsible for repairing or restoring the Property only If Lender has released
proceeds for such purposes. Lender may disburse proceeds for the repairs and restoration
In a single payment or In a series of progress payments as the work Is completed. If the
insurance or condemnation proceeds ¦re not sufficient to repair or restore the Property,
Borrower is not relieved of Borrowers obligation for the completion of such repair or
restoration.
Lender or its agent may make reasonable entries upon and Inspections of the Property.
If It has reasonable cause, Lender may Inspect the Interior of the improvements on the
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Property. Lender shall give Borrower notice at the time of or prior to such an Interior
inspection specifying such reasonable cause.
B. Borrower's Loan AppiiaaYon. Borrower shall be in default if, during the Loan
application process, Borrower or any persons or entities acting at the direction of Borrower
or with Borrower's knowledge or consent gave materially false, misleading, or Inaccurate
information or statements to Lender (or failed to provide Lender with material information)
in connection with the Loan. Material representations Include, but are not limited to,
representations concerning Borrower's occupancy of the Property as Borrower's principal
residence.
9. Protection of Lender's Inbred In We Property and Rights Under this Security
Instrument. If (a) Borrower fails to perform the covenants and agreements contained in this
Security Instrument, (b) there is a legal proceeding that might significantly affect Lender's
interest in the Property and/or rights under this Security Instrument (such as a proceeding
In bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien which may
attain priority over this Security Instrument or to enforce laws or regulations), or (c)
Borrower has abandoned the Property, then Lender may do and pay for whatever is
reasonable or appropriate to protect Lender's interest in the Property and rights under this
Security Instrument, including protecting and/or assessing the value of the Property, and
securing and/or repairing the Property. Lender's actions can include, but are not limited to:
(a) paying any sums secured by a lien which has priority over this Security Instrument; (b)
appearing in court; and (c) paying reasonable attorneys' fees to protect its Interest in the
Property and/or rights under this Security Instrument, including its secured position in a
bankruptcy proceeding. Securing the Property includes, but is not limited to, entering the
Property to make repairs, change locks, replace or board up doors and windows, drain
water from pipes, eliminate building or other code violations or dangerous conditions, and
have utilities turned on or off. Although Lender may take action under this Section 9,
Lender does not have to do so and Is not under any duty or obligation to do so. It Is agreed
that Lender incurs no liability for not taking any or all actions authorized under this Section
9.
Any amounts disbursed by Lender under this Section 9 shall become additional debt of
Borrower secured by this Security Instrument. These amounts shall bear interest at the
Note rate from the date of disbursement and shall be payable, with such Interest, upon
notice from Lender to Borrower requesting payment.
If this Security Instrument is on a leasehold, Borrower shall comply with all the
provisions of the lease. If Borrower acquires foe title to the Property, the leasehold and the
fee title shall not merge unless Lender agrees to the merger in writing.
10. Mortgage Insurance. If Lender required Mortgage Insurance as a condition of
making the Loan, Borrower shall pay the premiums required to maintain the Mortgage
Insurance in effect. It, for any reason, the Mortgage Insurance coverage required by Lender
ceases to be available from the mortgage Insurer that previously provided such insurance
and Borrower was required to make separately designated payments toward the premiums
for Mortgage Insurance, Borrower shall pay the premiums required to obtain coverage
substantially equivalent to the Mortgage Insurance previously In effect, at a cost
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substantially equivalent to the cost to Borrower of the Mortgage Insurance previously in
effect, from an alternate mortgage Insurer selected by Lender. If substantially equivalent
Mortgage Insurance coverage is not available, Borrower shall continue to pay to Lander
the amount of the separately designated payments that were due when the Insurance
coverage ceased to be in effect. Lender will accept, use and retain these payments as a
non-refundable loss reserve In lieu of Mortgage Insurance, Such loss reserve shall be
non-refundable, notwithstanding the fad the the Loan Is ultimately paid in full, and Lender
shall not be required to pay Borrower any interest or earnings on such loss reserve.
Lender can no longer require loss reserve payments H Mortgage Insurance coverage (In the
amount and for the period that Lender requires) provided by an insurer selected by Lender
again becomes available, is obtained, and Lender requires separately designed payments
toward the premiums for Mortgage Insurance. If Lender required Mortgage Insurance as a
condition of making the Loan and Borrower was required to make separately designed
payments toward the premiums for Mortgage Insurance, Borrower shall pay the premiums
required to maintain Mortgage Insurance in effect, or to provide a non-refundable loss
reserve, until Lender's requirement for Mortgage Insurance ends In accordance with any
written agreement between Borrower and Lender providing for such termination or until
termination Is required by Applicable Law. Nothing In this Section 10 affects Borrower's
obligation to pay Interest at the rate provided In the Note.
Mortgage Insurance reimburses Lender (or any entity that purchases the Note) for
certain losses it may Incur If Borrower does not repay the Loan as agreed. Borrower Is not
a party to the Mortgage Insurance.
Mortgage insurers evaluate their total risk on all such insurance In force from time to
time, and may enter into agreements with other parties that share or modify their risk, or
reduce losses. These agreements are on terms and conditions that are satisfactory to the
mortgage insurer and the other party (or parties) to these agreements. These agreements
may require the mortgage insurer to make payments using any source of funds that the
mortgage insurer may have available (which may Include funds obtained from Mortgage
Insurance premiums).
As a result of these agreements, Lender, any purchaser of the Note, another insurer,
any reinsurer, any other entity, or any affiliate of any of the foregoing, may receive (directly
or indirectly) amounts that derive from (or might be characterized as) a portion of
Borrower's payments for Mortgage Insurance, in exchange for sharing or modifying the
mortgage insurer's risk, or reducing losses. If such agreement provides that an affiliate of
Lender takes a share of the insurer's risk In exchange for a share of the premiums paid to
the Insurer, the arrangement is often termed "captive reinsurance.' Further:
(a) Any such agreements wM net afect the anmwn s 20 Borrower has agreed to pay
for Mortgage Insurance, or any otlwer terms of the Loan. Such agreemwhte wig not kwnm se
the amount Borrower will owe for Mortgage Insunmx , and tiwy will not endtb Borrower to
any refund.
(b) Any such agresrnente wits not affect the right Borrower has - N any - wph respect
to the Mortgage Insurance under the Ho neownere Protection Act of 1966 or any other law.
These rights may include the ftM to receive certain disolloaaw, to reed and obtain
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cancelutdon of the Mortgage insurance, to haw the Moraags Inswarwe tsrminated
sullotnadcally, and/or to trecelw a re tnd of any Mortgage Inaba me promituns that were
unearned at the *m of such canceNatkon or tsrmbation.
11. A"Ignnrsnt of Miscellaneous Proceeds; Perfewras: All Miscellaneous Proceeds are
hereby assigned to and shall be paid to Lender.
If the Property Is damaged, such Miscellaneous Proceeds shall be applied to
restoration or repair of the Property, if the restoration or repair is economically feasible and
Lender's security is not lessened. During such repair and restoration period, Lender shall
have the right to hold such Miscellaneous Proceeds until Lender has had an opportunity to
Inspect such Property to ensure the work has been completed to Lender's satisfaction,
provided that such Inspection shall be undertaken promptly. Lender may pay for the repairs
and restoration In a single disbursement or in a series of progress payments as the work is
completed. Unless an agreement is made In writing or Applicable Law requires interest to
be paid on such Miscellaneous Proceeds, Lender shall not be required to pay Borrower any
interest or earnings on such Miscellaneous Proceeds. If the restoration or repair is not
economically feasible or Lender's security would be lessened, the Miscellaneous Proceeds
shall be applied to the sums secured by this Security Instrument, whether or not then due,
with the excess, if any, paid to Borrower. Such Miscellaneous Proceeds shall be applied In
the order provided for in Section 2.
In the event of a total taking, destruction, or loss In value of the Property, the
Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument,
whether or not then due, with the excess, if any, paid to Borrower.
In the event of a partial taking, destruction, or toss in value of the Property In which the
fair market value of the Property immediately before the partial taking, destruction, or loss
in value is equal to or greater than the amount of the sums secured by this Security
Instrument immediately before the partial taking, destruction, or loss In value, unless
Borrower and Lender otherwise agree in writing, the sums secured by this Security
Instrument shall be reduced by the amount of the Miscellaneous Proceeds multiplied by the
following fraction; (a) the total amount of the sums secured Immediately before the partial
taking, destruction, or loss in value divided by (b) the fair market value of the Property
immediately before the partial taking, destruction, or loss In value. Any balance shall be
paid to Borrower.
In the event of a partial taking, destruction, or loss in value of the Property in which
the fair market value of the Property immediately before the partial taking, destruction, or
loss in value is less than the amount of the sums secured immediately before the partial
taking, destruction, or loss In value, unless Borrower and Lender otherwise agree in writing,
the Miscellaneous Proceeds shall be applied to the sums secured by this Security
Instrument whether or not the sums are then due.
If the Property Is abandoned by Borrower, or if, after notice by Lender to Borrower that
the apposing Party (as defined in the next sentence) offers to make an award to settle a
claim for damages, Borrower falls to respond to Lender within 30 days after the date the
notice is given, Lender is authorized to collect and apply the Miscellaneous Proceeds either
to restoratlon or repair of the Property or to the sums secured by this Security Instrument,
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whether or not then due. "Opposing Party' means the third party that owes Borrower
Miscellaneous Proceeds or the party against whom Borrower has a right of action In regard
to Miscellaneous Proceeds.
Borrower shall be In default If any action or proceeding, whether civil or criminal, is
begun that, in Lender's judgment, could result in forfeiture of the Property or other material
impairment of Lender's interest In the Property or rights under this Security Instrument.
Borrower can cure such a default and, If acceleration has occurred, reinstate as provided In
Section 19, by causing the action or proceeding to be dismissed with a ruling that, in
Lender's judgment, precludes forfeiture of the Property or other material impairment of
Lender's Interest in the Property or rights under this Security Instrument. The proceeds of
any award or claim for damages that are attributable to the impairment of Lender's Interest
in the Property are hereby assigned and shall be paid to Lender.
All Miscellaneous Proceeds that are not applied to restoration or repair of the Property
shall be applied in the order provided for in Section 2.
12. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time
for payment or modification of amortization of the sums secured by this Security instrument
granted by Lender to Borrower or any Successor In Interest of Borrower shall not operate to
release the liability of Borrower or any Successors In Interest of Borrower. Lender shall not
be required to commence proceedings against any Successor in Interest of Borrower or to
refuse to extend time for payment or otherwise modify amortization of the sums secured by
this Security Instrument by mason of any demand made by the original Borrower or any
Successors in Interest of Borrower. Any forbearance by Lender In exercising any right or
remedy including, without limitation, Lender's acceptance of payments from third persons,
entities or Successors In Interest of Borrower or In amounts less than the amount then due,
shall not be a waiver of or preclude the exercise of any right or remedy.
18. Joint and Several Llabilit)I; Co-elgners; Succesmm and Assip m Bound. Borrower
covenants and agrees that Borrower's obligations and liability shall be joint and several.
However, any Borrower who co-signs this Security Instrument but does not execute the Note
(a "co-signer'): (a) is co-slgning this Security Instrument only to mortgage, grant and convey
the co-signer's interest In the Property under the terms of this Security Instrument; (b) is not
personally obligated to pay the sums secured by this Security Instrument; and (c) agrees
that Lender and any other Borrower can agree to extend, modify, forbear or make any
accommodations with regard to the terms of this Security Instrument or the Note without the
co-signer's consent.
Subject to the provision of Section 18, any Successor in Interest of Borrower who
assumes Borrower's obligations under this Security Instrument in writing, and is approved
by Lender, shall obtain all of Borrower's rights and benefits under this Security Instrument.
Borrower shall not be released from Borrower's obligations and liability under this Security
Instrument unless Lender agrees to such release in writing. The covenants and agreements
of this Security Instrument shall bind (except as provided In Section 20) and benefit the
successors and assigns of Lender.
% Loan Charges. Lender may charge Borrower fees for services performed in
connection with Borrower's default, for the purpose of protecting Lender's Interest in the
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Property and rights under this Security Instrument, including, but not limited to, attorneys'
fees, property Inspection and valuation fees. In regard to any other flees, the absence of
express authority in this Security Instrument to charge a specific fee to Borrower shall not
be construed as a prohibition on the changing of a foe. Lender may not charge fees that are
expressly prohibited by this Security Instrument or by Applicable Law.
If the Loan is subject to a law which "is maximum loan charges, and that law is finally
interpreted so that the Interest or other loan charges collected or to be collected In
connection with the Loan exceed the permitted limits, then: (a) any such loan charge shall
be reduced by the amount necessary to reduce the charge to the permitted limit; and (b)
any sums already collected from Borrower which exceeded permitted limits will be refunded
to Borrower. Lender may choose to maize this refund by reducing the principal owed under
the Note or by making a direct payment to Borrower. If a refund reduces principal, the
reduction will be treated as a partial prepayment without any prepayment charge (whether
or not a prepayment charge is provided for under the Note). Borrower's acceptance of any
such refund made by direct payment to borrower will constitute a waiver of any right of
action Borrower might have arising out of such overcharge.
15. Notices. All notices given by Borrower or Lender in connection with this Security
Instrument must be in writing. Any notice to Borrower in connection with this Security
Instrument shall be deemed to have been given to Borrower when mailed by first class mail
or when actually delivered to Borrower's notice address If sent by other means. Notice to
any one Borrower shall constitute notice to all Borrowers unless Applicable Law expressly
requires otherwise. The notice address shall be the Property Address unless Borrower has
designated a substitute notice address by notice to Lender. Borrower shall promptly notify
Lender of Borrower's change of address. If Lender specifies a procedure for reporting
Borrower's change of address, then Borrower shall only report a change of address through
that specified procedure. There may be only one designated notice address under this
Security instrument at any one time. Any notice to Lender shall be given by delivering It or
by mailing it by first class mail to Lender's address stated heroin unless Lender has
designated another address by notice to Borrower. Any notice In connection with this
Security Instrument shall not be deemed to have boon given to Lender until actually
received by Lender. If any notice required by this Security Instrument Is also required
under Applicable Law, the Applicable Law requirement will satisfy the corresponding
requirement under this Security Instrument.
16. Governing Law; SewrabiUty; Rubs of Construction. This Security Instrument shall
be governed by federal law and the law of the Jurisdiction In which the Property is located.
All rights and obligations contained in this Security Instrument are subject to any
requirements and limitations of Applicable Law. Applicable Law might explicitly or implicitly
allow the parties to agree by contract or it might be silent, but such silence shall not be
construed as a prohibition against agreement by contract. In the event that any provision or
clause of this Security Instrument or the Note conflicts with Applicable Law, such conflict
shall not affect other provisions of this Security Instrument or the Note which can be given
effect without the conflicting provision.
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As used in this Security Instrument: (a) words of the masculine gender shall mean and
include corresponding neuter words or words of the feminine gender, (b) words in the
singular shall mean and Include the plural and vice versa; and (c) the word 'may' gives
sole discretion without any obligation to take any action.
17. Borrower's Copy. Borrower shall be given one copy of the Note and of this
Security Instrument.
18. Transfer of the Property or a Beneficial Intsrest In Borrower. As used in this
Section 18, 'Interest In the Property' means any legal or beneficial interest In the Property,
including, but not limited to, those beneficial Interests transferred In a bond for deed,
contract for deed, Installment sales contract or escrow agreement, the intent of which Is the
transfer of title by Borrower at a future date to a purchaser.
If all or any part of the Property or any Interest in the Property is sold or transferred
(or if Borrower Is not a natural person and a beneficial Interest In Borrower is sold or
transferred) without Lenders prior written consent, Lender may require immediate payment
in full of all sums secured by this Security Instrument. However, this option shall not be
exercised by Lender if such exercise is prohibited by Applicable Law.
If Lender exercises this option, Lender shall give Borrower notice of acceleration. The
notice shall provide a period of not less than 30 days from the date the notice is given in
accordance with Section 15 within which Borrower must pay all sums secured by this
Security Instrument. If Borrower falls to pay these sums prior to the expiration of this
period, Lender may Invoke any remedies permitted by this Security Instrument without
further notice or demand on Borrower.
1g. Borrower's Right to Rektetatle After Acceleration. If Borrower meets certain
conditions, Borrower shall have the right to have enforcement of this Security Instrument
discontinued at any time prior to the earliest of (a) five days before sale of the Property
pursuant to any power of sale contained in this Security Instrument; (b) such other period as
Applicable Law might specify for the termination of Borrower's right to reinstate; or (c) entry
of a judgment enforcing this Security Instrument. Those conditions are that Borrower. (a)
pays Lender all sums which then would be due under this Security Instrument and the Note
as if no acceleration had occurred; (b) cures any default of any other covenants or
agreements; (c) pays all expenses Incurred in enforcing this Security Instrument, including,
but not limited to, reasonable attorneys' fees, property Inspection and valuation fees, and
other fees Incurred for the purpose of protecting Lenders Interest in the Property and rights
under this Security Instrument; and (d) takes such action as Lender may reasonably require
to assure that Lender's interest in the Property and rights under this Security Instrument,
and Borrower's obligation to pay the sums secured by this Security Instrument, shall
continue unchanged. Lender may require that Borrower pay such reinstatement sums and
expenses in one or more of the following forms, as selected by Lender: (a) cash; (b) money
order, (c) certified check, bank check, treasurer's check or cashier's check, provided any
such check is drawn upon an institution whose deposits are Insured by a federal agency,
instrumentality or entity; or (d) Electronic Funds Transfer. Upon reinstatement by Borrower,
this Security Instrument and obligations secured hereby shall remain fully effective as if no
acceleration had occurred. However, this right to reinstate shall not apply in the case of
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acceleration under Section 18.
20. Sale of Nob; Change of Loan Servicer, Notice of Grievance. The Note or a partial
interest in the Note (together with this Security Instrument) can be sold one or more times
without prior notice to Borrower. A sale might result In a change in the entity (known as the
'Loan Servicer") that collects Periodic Payments due under the Note and this Security
Instrument and performs other mortgage ban servicing obligations under the Note, this
Security Instrument, and Applicable Law. There also might be one or more changes of the
Loan Servicer unrelated to a sale of the Note. If there Is a change of the Loan Servicer,
Borrower will be given written notice of the change which will state the name and address
of the new Loan Servicer, the address to which payments should be made and any other
information RESPA requires in connection with a notice of transfer or servicing. If the Note
is sold and thereafter the Loan is serviced by a Loan Servicer other than the purchaser of
the Note, the mortgage loan servicing obligations to Borrower will remain with the Loan
Servicer or be transferred to a successor Loan Servicer and are not assumed by the Note
purchaser unless otherwise provided by the Note purchaser.
Neither Borrower nor Lender may commence, join, or be joined to any judicial action
(as either an individual litigant or the member of a class) that arises from the other party's
actions pursuant to this Security Instrument or that alleges that the other party has
breached any provision of, or any duty owed by reason of, this Security Instrument, until
such Borrower or Lender has notified the other party (with such notice given in compliance
with the requirements of Section 15) of such alleged breach and afforded the other party
hereto a reasonable period after the giving of such notice to take corrective action. If
Applicable Law provides a time period which must elapse before certain action can be
taken, that time period will be deemed to be reasonable for purposes of this paragraph.
The notice of acceleration and opportunity to cure given to Borrower pursuant to Section 22
and the notice of acceleration given to Borrower pursuant to Section 18 shall be deemed to
satisfy the notice and opportunity to take corrective action provisions of this Section 20.
21. Hazardous Substances. As used in this Section 21: (a) 'Hazardous Substances"
are those substances defined as toxic or hazardous substances, pollutants, or wastes by
Environmental Law and the following substances: gasoline, kerosene, other flammable or
toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials
containing asbestos or formaldehyde, and radioactive materials; (b) 'Environmental Law'
means federal laws and laws of the jurisdiction where the Properly is located that relate to
health, safety or environmental protection; (c) "Environmental Cleanup' Includes any
response action, remedial action, or removal action, as defined in Environmental Law; and
(d) an 'Environmental Condition' means a condition that can cause, contribute to, or
otherwise trigger an Environment Cleanup.
Borrower shall not cause or permit the presence, use, disposal, storage, or release of
any Hazardous Substances, or threaten to release any Hazardous Substances, on or in the
Property. Borrower shall not do, nor allow anyone also to do, anything affecting the
Property (a) that is in violation of any Environmental Law, (b) which creates an
Environmental Condition, or (c) which, due to the presence, use, or release of a Hazardous
Substance, creates a condition that adversely affects the value of the Property. The
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preceding two sentences shall not apply to the presence, use, or storage on the Property of
small quantities of Hazardous Substances that are generally recognized to be appropriate to
normal residential uses and to mantenance of the Property (including, but not limited to,
hazardous substances in consumer products).
Borrower shall promptly give Lender written notice of (a) any investigation, claim,
demand; lawsuit or other action by any governmental or regulatory agency or private party
Involving the Property and any Hazardous Substance or Environmental Law of which
Borrower has actual knowledge, (b) any Environmental Condition, including but not limited
to, any spilling, leaking, discharge, release or threat of release of any Hazardous Substance,
and (c) any condition caused by the presence, use or release of a Hazardous Substance
which adversely affects the value of the Property. If Borrower learns, or is notified by any
governmental or regulatory authority, or any private party, that any removal or other
remediation of any Hazardous Substance affecting the Property Is necessary, Borrower shall
promptly take all necessary remedial actions in accordance with Environmental Law.
Nothing herein shall create any obligation on Lender for an Environmental Cleanup.
NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as
follows:
22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration
following Borrower`s breach of any covenant or agreement in tide Security Instrument (but
not prior to acceilerarion tender goodon tit unless AppNeble Law proridsa otlarwise).
Lender shall notify Borrower of, among other things: (a) the default; (b) the adbn required
to cure the default (c) when the do** must be cured; and (d) that hlirwe to curs the
default as specified rosy result In acosisralion of the maw secured by this Security
Instrument, foreclosure by judkai proossding and sale of the property. Lander shag
further Inform Borrower of the right to rsl stols afar socalenWon and the right to assert In
the foreclosure proceeding the non-exislonos of a default or my over defense of Borrower
to accsWation and forsckmirs. If the ddault Is not cured as spsolllsd, Lander at Its
option may re"Irs bnmedaM payment In full of all Burns secured by this Security
Instrument without further demand and may for olloss this Security insirumant by judicial
proceeding. Lender shall be enured to coNect aN ezpene" Incurred In pursuing this
remedies provided In this Section 22, Inciudbv, but not Endtsd to, atlorneys' fees and costs
of title evidence ID the extent permlBsd by Applicable Law.
23. Rehm". Upon payment of all sums secured by this Security Instrument, this
Security Instrument and the estate conveyed shall terminate and become void. After such
occurrence, Lender shall discharge and satisfy this Security Instrument. Borrower shall pay
any recordation costs. Lender may charge Borrower a fee for releasing this Security
Instrument, but only if the fee is paid to a third party for services rendered and the charging
of the fee is permitted under Applicable Law.
24. Walvers. Borrower, to the extent permitted by Applicable Law, waives and releases
any error or defects in proceedings to enforce this Security Instrument, and hereby waives
the benefit of any present or future taws providing for stay of execution, extension of time,
exemption from attachment, levy and sale, and homestead exemption.
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.. . . A.- ., . .
25, Rokwtate rent Period. Borrower's time to reinstate provided in Section 19 shall
extend to one hour prior to the commencement of bidding at a sheriff's sale or other sale
pursuant to this Security instrument.
26. Purchase Money Mortgage. If any of the debt secured by this Security Instrument
Is lent to Borrower to acquire title to the Property, this Security Instrument shall be a
purchase money mortgage.
27. Interest Rata Aifar Judgment Borrower agrees that the interest rate payable alter
a judgment Is entered on the Note or In an action of mortgage foreclosure shall be the rate
payable from time to time under the Note.
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants
contained In this Security Instrument and in any Rider executed by Borrower and recorded
with ft.
Witnesses:
?EN 8 M Oa NE Borrower
USAN E BARTAK Borrower
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CerdAca ofReeWence
the correct'addreessss of hie with r-med Mortgagee Is
P. O. BOX 5197, DES MOINES, IA 50806-6187
, do hereby certify that
Witness my hand this 22ND day of MAY, 9006
AM40mbor, ALTH W1.11ond L ^ Owty
AyNI of 11 payee
nie COMMONWEALTH OF PENNSYLVANI
A, CUMBERLAND County as:
On this, the 22ND day of MAY, 2006 , before me, the undersigned
officer, personally appeared
STEVEN BRETT OSBORNE AND SUSAN E SARTAK, A MARRIED COUPLE
known to me (or satisfactorily proven) to be the person se name(s) I re bscribed
to the within instrument and acknowledged that he/sh ey scaled the *am r the
purposes herein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My Commission Expires:
COMMONWEALTH OF PENNSYLVANIA
Notarial Saul
HWVdGnOunberiarldCournY
MY Omlfrlleabn E0e6 July 18, 2006
Member. Pennsylvania Assoclatlr, of Notaries
SPA18 ReV 12/27100
t 2T
Page 18 of 18
C
Tide of OfOoar
Inldel FORM aOiY 1/01
11/26/2008 8:34:54 AM CUMBERLAND COUNTY Insil 200618076 - Page 18 of 22
EXHIBIT "A"
ALL THAT CERTAIN parcel of real property, situate In Hampden Township, County of Cumberland,
Commonwealth of Pennsylvania, being more particularly described as follows:
Unit Number 27 In The Preserve, a Planned Community as established by the filing of the Declaration of
Covenants, Restrictions, Easement and Establishment of Homeowners Association for The Preserves, a
Planned Community in Hampden Township, Cumberland County, Pennsylvania as recorded in the Office
of the Recorder of Deeds in and for Cumberland County, Pennsylvania In Misc. Book 705, Pape 4220, as
amended (referencing Subdivision Plan recorded In Plan Book 88, Pape 76). As amended by First
Amendment to Declaration of Covenants, Restrictions, Easements and Establishments of Homeowners
Association for The Preserves, a Planned Community as recorded In the Office of the Recorder of Deeds
in and for Cumberland County, Pennsylvania, in Misc. Book 713, Pape 2593, as amended referencing
Subdivision Plan recorded as In Plan Book 89, Page 101, and any and all amendments thereto.
UNDER AND SUBJECT TO any and all restrictions, covenants, conditions, reservations, rights-of-way,
and easements of record.
BEING THE SAME PREMISES which Charter Homes at The Preserve, Inc., by their deed to be recorded
simultaneously herewith in the Office of the Recorder of Deeds of Cumberland County, granted and
conveyed unto Steven Brett Osborne and Susan E. Sartak.
I Certify this to be recorded
In Cumberland County PA
Recorder of Deeds
11/2612008 8:34:54 AM CUMBERLAND COUNTY Inst.# 200618076 - Page 22 of 22
LEGAL DESCRIPTION
ALL THAT CERTAIN PARCEL OF REAL PROPERTY, SITUATE IN HAMPDEN
TOWNSHIP, COUNTY OF CUMBERLAND, COMMONWEALTH OF PENNSYLVANIA,
BEING: UNIT: Lot 27 IN THE PRESERVE, A PLANNED COMMUNITY AS
ESTABLISHED BY FILING OF THE DECLARATION OF COVENANTS, RESTRICTIONS,
EASEMENT AND ESTABLISHMENT OF HOMEOWNERS ASSOCIATION FOR THE
PRESERVES, A PLANNED COMMUNITY IN HAMPDEN TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA AS RECORDED IN THE OFFICE OF THE COUNTY
RECORDER OF DEEDS IN AND FOR CUMBERLAND COUNTY, PENNSYLVANIA IN
MISC... BOOK 705, PAGE 4220; AND FIRST AMENDMENT IN MISC... BOOK 713, PAGE
2593, (REFERENCING SUBDIVISION Plan RECORDED IN Plan BOOK 88, PAGE 76;
PLAT RECORDED IN RIGHT-OF-WAY Plan BOOK 13, PAGE 54; AND Plan IN Plan BOOK
89, PAGE 101; PLAT RECORDED IN RIGHT-OF-WAY Plan BOOK 13, PAGE 76) AS
AMENDED. BEING PARTICULARLY OF THE SAME PREMISES WHICH DANIEL F.
PUTT, EXECUTOR OF THE LAST WILL AND TESTAMENT OF ANNA MAE PUTT BY
DEED DATED January 30, 2004 AND RECORDED January 30, 2004 IN THE OFFICE OF
THE RECORDER OF DEEDS IN AND FOR CUMBERLAND COUNTY, PENNSYLVANIA
IN DEED BOOK 261, PAGE 2433, GRANTED AND CONVEYED UNTO CHARTER
HOMES AT THE PRESERVE, INC.,
A PENNSYLVANIA CORPORATION, ITS SUCCESSORS AND ASSIGNS.
SUBJECT TO RESTRICTIONS, RESERVATIONS, EASEMENTS, COVENANTS, OIL, GAS
OR MINERAL RIGHTS OF RECORD, IF ANY. BEING THE SAME PREMISES
File #: 192826
CONVEYED TO STEVEN BRETT OSBORNE AND SUSAN E. BARTAK, HUSBAND AND
WIFE FROM CHARTER HOMES AT THE PRESERVE, INC., A PENNSYLVANIA
CORPORATION BY DEED DATED 05/22/2006, AND RECORDED ON 05/26/2006, AT
BOOK 274, PAGE 3695, IN CUMBERLAND COUNTY, PA.
PARCEL NO. 10-11-3016-054
PROPERTY BEING: 6215 RUN CROSS LANE
File #: 192826
VERIFICATION
I hereby state that I am the attorney for the Plaintiff in this matter, that Plaintiff is outside
the jurisdiction of the Court and/or the verification could not be obtained within the time allowed
for the filing of the pleading, that I am authorized to make this verification pursuant to Pa.R.C.P.
1024 (c), and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are
based upon information supplied by Plaintiff and are true and correct to the best of my
knowledge, information and belief.
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.
DATE: "I ). /.-i
&9 1.(p V
?LRI N?,2 -H) M - ?
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Attorney for Plain A Of
File #: 192826
y
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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 BANK, N.A.
Plaintiff
VS.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
Defendant(s)
ATTORNEY FOR PLAINTIFF
COURT OF COMMON PLEAS
CIVIL DIVISION
NO. 08-7233 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: 12/17/08
Phelan Hallinan & Schmieg, LLP
Attorney for Plaintiff
By.
Franci. S. Hal an, Esquire
PHS #: 192826
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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 BANK, N.A.
Plaintiff
VS.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
Defendant(s)
ATTORNEY FOR PLAINTIFF
: COURT OF COMMON PLEAS
CIVIL DIVISION
NO. 08-7233 CIVIL TERM-)
5ud
CUMBERLAND COUN
CERTIFICATE OF SERVICE
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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:
STEVEN BRETT OSBORNE
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
Phelan Hallinan & Schmieg, LLP
Attorney for Plaintiff
By: V/11
Franci S. Halli an, Esquire
Date: 12/17/08
VERIFICATION
Vice President of
Loan Docu Yolanda Williams
mentation hereby
WELLS Of FELLS FgRG states that he/she is
FARGO O BANK, N.A.
BANK, N.A.) in this matter servicing agent for
and that the statements made in the fore he is authorized
to take this Verification,
correct to the best going civil Action in Mo
of his/her knowled rtgage Foreclosure
that this statement knowledge, is made sub' 1 belief. The
sect to the undersigned understands
falsification to penalties of 18 Pa, C,
authorities. Of Sec. 4904 relating to unsworn
DATE; 1'0 - 0 8
- ...Vuuams ----
Title' VC e President of
Loan Documentation
Company; WELLS FARGO BANK, N.A.
File # 192826
SHERIFF'S RETURN - REGULAR
CASE NO: 2008-07233 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
WELLS FARGO BANK N A
VS
OSBORNE STEVEN BRETT ET AL
SHAWN HARRISON , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - MORT FORE was served upon
OSBORNE STEVEN BRETT the
DEFENDANT , at 0846:00 HOURS, on the 3rd day of January , 2009
at 6 JULY BREEZE DRTVF
MECHANICSBURG, PA 17050
STEVEN OSBORNE
by handing to
a true and attested copy of COMPLAINT - MORT FORE
together with
and at the same time directing His attention to the contents thereof.
Additional Comments
6215 RUN CROSS LANE IS VACANT.
Sheriff's Costs:
Docketing 18.00
Service 22.50
Affidavit .00
Surcharge 10.00
.00
50.50
Sworn and Subscibed to
before me this day
of ,
So Answers:
R. Thomas Kline
01/05/2009
PHELAN H
By:
A. D.
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SHERIFF'S RETURN - REGULAR
CASE NO: 2008-07233 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
WELLS FARGO BANK N A
VS
OSBORNE STEVEN BRETT ET AL
SHAWN HARRISON , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - MORT FORE was served upon
BARTAK SUSAN E the
DEFENDANT at 0846:00 HOURS, on the 3rd day of January , 2009
at 6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050
STEVEN OSBORNE, HUSBAND
by handing to
a true and attested copy of COMPLAINT - MORT FORE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
6.00
.00
.1 ?.
00 ;
10.00 R. Thomas Kline
.00
16.00 01/05/2009
PHELAN HALLIiSC IEG
Sworn and Subscibed to
before me this day
of ,
By:
Dept Sheri
A. D.
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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 BANK, N.A.
VS.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
Attorney for Plaintiff
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL DIVISION
No. 08-7233 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 STEVEN BRETT
OSBORNE, and SUSAN E. BARTAK, 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 $252,077.59
Interest - 12/10/2008 to 02/10/2009
2$ ,520.63
TOTAL $254,598.22
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 # 192826 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 BANK, N.A.
Plaintiff
V.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
Defendant(s)
TO: SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
DATE OF NOTICE: January 27, 2009
ATTORNEY FOR PLAINTIFF
COURT OF COMMON PLEAS
CIVIL DIVISON
NO. 08-7233 CIVIL TERM
CUMBERLAND COUNTY
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.
IlVIPORTANT NOTICE
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
/
MARLENE POWERS
Legal Assistant
PHS # 192826
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 ATTORNEY FOR PLAINTIFF
PHILADELPHIA, PA 19103
(215) 563-7000
WELLS FARGO BANK, N.A.
V.
Plaintiff
COURT OF COMMON PLEAS
CIVIL DIVISON
NO. 08-7233 CIVIL TERM
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
Defendant(s)
CUMBERLAND COUNTY
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.
IMPORTANT NOTICE
TO: STEVEN BRETT OSBORNE
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
DATE OF NOTICE: January 27, 2009
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
I Courthouse Square
Carlisle, PA 17013
(717) 240-6195
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
MARLENE POWERS
Legal Assistant
PHS # 192826
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 BANK, N.A.
VS.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
Attorney for Plaintiff
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL DIVISION
No. 08-7233 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 STEVEN BRETT OSBORNE is over 18 years of age and
resides at 6 JULY BREEZE DRIVE, MECHANICSBURG, PA 17050-3808.
(c) that defendant SUSAN E. BARTAK is over 18 years of age and resides at 6
JULY BREEZE DRIVE, MECHANICSBURG, PA 17050-3808.
This statement is made subject to the penalties of 18 Pa. C.S. Section 4904
relating to unsworn falsification to authorities.
r _
Daniel G. Schmieg, Esquire
Attorney for Plaintiff
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(Rule of Civil Procedure No. 236) - Revised
WELLS FARGO BANK, N.A.
VS.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
: CIVIL DIVISION
: No. 08-7233 CIVIL TERM
Notice is given that a Judgment in the above captioned matter has been entered
against you on d111 16g
'CTf4
By:k d.
If you have any questions concerning this matter please contact:
aniel 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
ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU
HAVE PREVIOUSL Y RECEIVED A DISCHARGE IN BANKRUPTCY, THIS IS NOT AND
SHOULD NOT BE CONSTRUED TO BE ANATTEMPT TO COLLECT A DEBT, BUT
ONL Y ENFORCEMENT OFA LIEN AGAINSTPROPERTY.**
PHELAN HALLINAN & SCHMIEG, LLP
By: DANIEL G. SCHMIEG
Identification No. 62205
One Penn Center at Suburban Station - Suite 1400
1617 John F. Kennedy Boulevard
Philadelphia, PA 19103-1814 Attorney for Plaintiff
(215) 563-7000
WELLS FARGO BANK, N.A.
Plaintiff
CUMBERLAND COUNTY
vs
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
Defendant(s)
NO. 08-7233
Si1GGE.STION OF RECORD CHANGE,
RE.: DEFENDANT'S NAME.
DANIEL G. SCHMIEG attorney for the Plaintiff, hereby certifies that, to the best of his
knowledge, information and belief the Defendant's name was erroneously listed as:
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
The correct name for the Defendant(s) are:
STEVEN BRETT OSBORNE A/K/A STEVEN B. OSBORNE
SUSAN E. BARTAK
Kindly change the information on the docket.
G. SC G, ESQUIRE
Attorney for Plaintiff
ch
(717) 249-3166
(800) 990-9108
PRAECIPE FOR WRIT OF EXECUTION - (MORTGAGE FORECLOSURE)
Pa.R.C.P. 3180-3183
WELLS FARGO BANK, N.A.
Plaintiff,
V.
STEVEN BRETT OSBORNE A/K/A STEVEN B.
OSBORNE
SUSAN E. BARTAK
No. 08-7233 CIVIL TERM
Defendant(s).
TO THE PROTHONOTARY:
Issue writ of execution in the above matter:
Amount Due
$254,598.22
Interest from 02/11/2009 - 06/10/2009 $5,022.00 and Costs
(per diem -$41.85 )
TOTAL $259,620.22 0 A10A?sAWG. SCHMIEG, 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 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.
192826
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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 BANK, N.A.
Plaintiff,
V.
STEVEN BRETT OSBORNE .
AWA STEVEN B. OSBORNE
SUSAN E. BARTAK
Defendant(s). .
ATTORNEY FOR PLAINTIFF
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL DIVISION
NO. 08-7233 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
(X ) vacant
() 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.
IJANNEE, G. SCH&IEG, ESQUIRE
Attorney for Plaintiff
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WELLS FARGO BANK, N.A.
Plaintiff,
v.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
STEVEN BRETT OSBORNE CIVIL DIVISION
A/K/A STEVEN B. OSBORNE
SUSAN E. BARTAK NO. 08-7233 CIVIL TERM
Defendant(s).
AFFIDAVIT PURSUANT TO RULE 3129.1
WELLS FARGO BANK, N.A., 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 ,6215 RUN CROSS LANE, ENOLA, PA 17025-
1346.
1. Name and address of Owner(s) or reputed Owner(s):
Name Last Known Address (if address cannot be
reasonably ascertained, please indicate)
STEVEN BRETT OSBORNE 6 JULY BREEZE DRIVE
A/K/A STEVEN B. OSBORNE MECHANICSBURG, PA 17050-3808
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
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)
WELLS FARGO BANK, N.A.
101 NORTH PHILLIPS AVENUE
SIOUX FALLS, SD 57104
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
THE PRESERVE NEIGHBORHOOD
ASSOCIATION, INC.
THE PRESERVES HOMEOWNERS'
ASSOCIATION
6215 RUN CROSS LANE
ENOLA, PA 17025-1346
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
114 FOXSHIRE DRIVE
LANCASTER, PA 17601-3989
301 MARKET STREET
LEMOYNE, PA 17043-1662
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 false statements herein are made subject to the
penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification t?thorities.
February 23, 2009
DATE
D
ESQUIRE
Plaintiff
4? .may
WELLS FARGO BANK, N.A.
Plaintiff,
V.
STEVEN BRETT OSBORNE A/K/A STEVEN B.
OSBORNE
SUSAN E. BARTAK
Defendant(s).
CUMBERLAND COUNTY
No. 08-7233 CIVIL, TERM
February 23, 2009
TO: STEVEN BRETT OSBORNE
A/K/A STEVEN B. OSBORNE
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
"THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION
OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLYRECEIVED A DISCHARGE IN
BANKRUPTCYAND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE
AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. * *
Your house (real estate) at. 6215 RUN CROSS LANE, ENOLA, PA 17025-1346, 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 $254,598.22 obtained by
WELLS FARGO BANK, N.A. (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 Sheriff s 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.
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 parcel of real property, situate in Hampden Township, County of Cumberland,
Commonwealth of Pennsylvania, being:
Unit: Lot 27 in The Preserve, a Planned Community as established by the filing of the Declaration of
Covenants, Restrictions, Easement and Establishment of Homeowners Association for The Preserves, a
Planned Community in Hampden Township, Cumberland County, Pennsylvania as recorded in the
Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Misc. Book 705, Page
4220; and First Amendment in Misc. Book 713, Page 2593, (referencing Subdivision Plan recorded in
Plan Book 88, Page 76; Plat recorded in right-of-way Plan Book 13, Page 54; and Plan in Plan Book 89,
Page 101; Plat recorded in right-of-way Plan Book 13, Page 76) as amended
BEING PART OF THE SAME PREMISES which Daniel F. Putt, Executor of the Last Will and
Testament of Anna Mae Putt by deed dated January 30, 2004 and recorded January 30, 2004
in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Deed
Book 261, Page 2433, granted and conveyed unto Charter Homes At The Preserve, inc., a
Pennsylvania Corporation, its successors and assigns.
TITLE TO SAID PREMISES IS VESTED IN Steven Brett Osborne and Susan E. Bartak, h/w, by
Deed from Charter Homes at the Preserve, Inc., a Pennsylvania Corporation, dated 05/22/2006,
recorded 05/26/2006 in Book 274, Page 3695.
PREMISES BEING: 6215 RUN CROSS LANE, ENOLA, PA 17025-1346
PARCEL NO. 10-11-3016-054
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 08-7233 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due WELLS FARGO BANK, N. A., Plaintiff (s)
From STEVEN BRETT OSBORNE a/k/a STEVEN B. OSBORNE and SUSAN E. BARTAK
(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 $254,598.22
L.L. $.50
Interest from 2/11/09 - 6/10/09 (per diem - $41.85) -- $5,022.00 and Costs
Atty's Comm %
Due Prothy $2.00
Atty Paid $185.50 Other Costs
Plaintiff Paid
Date; 2/25/09
urtis R. rothono
(Seal) By:
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
Deputy
ax
AFFIDAVIT OF SERVICE
PLAINTIFF WELLS FARGO BANK, N.A.
DEFENDANT(S) STEVEN BRETT OSBORNE
A/K(A STMN B. OMORNE
SUSAN E. BARTAK
SERVE STEVEN BRETT OSBORNE
A/K/A STEVEN B. OSBORNE AT:
CUMBERLAND COUNTY
No. 08-7233 CIVII. TERM
ACCT. #191825
Type of Action
- Notice of Sheriffs Sale
6 JULY BREEZE DRIVE Sale Date: JUNE 10, 2009
MECHANICSBURG, PA 17050-3808
SERVED
Served and made known to _5Ti<urw eiern Ls&MF Defendant, on the q//?'
'1"t" day of C-(1 20dl
at -4%37 o'clock R.m., at TUt y &E Vqe DR% U£ AAC!C? (GS Ru P&_ 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:
fQ 4
Description: Age Heightl???D Weight -LIP Race W Sex M Other
I, ?_QW#U3 "`D L L_ a competent adult, being duly sworn according to law, depose and spate that I personally handed
a true and correct copy of the Notice of Sheriffs Sale in the manner as set forth herein, issued in the captioned case on the date and at
the address indicated above.
Sworn to and sub bed
before this day
of 2
N By: Pft,,tUqt1,eA
PLE A EMPT SERVICE AT LEAST 3 TIMES. INDICATE DATES & TIMES OF SERVICE ATTEMPTED.
PA VE HARijiS NOT SERVED
Con;mission Expires June 18, 2013
On the day of 200. at o'clock _.m., Defendant NOT FOUND because:
Moved Unknown No Answer Vacant
1" Attempt: Time: 2nd Attempt:
3rd Attempt: Time:
Sworn to and subscribed Attorney for Plaintiff
before me this day DANIEL G. SCHMIEG, Esquire'- I.D. No. 62205
of 200. One Penn Center at Suburban Sttition, Suite 1400
Notary: By: 1617 John F. Kennedy Boulevard'.
Philadelphia, PA 19103-1814
(215) 563-7000
d`? 98z
E LED-4J} rrE
OF THE RR,"' i H'' NOTAPY
209 MAR 31 AH ! ! = 0 m
V?.J? tr' t?? t 1t
AFFIDAVIT OF SERVICE
PLAINTIFF WELLS FARGO BANK, N.A. CUMBERLAND COUNTY
DEFENDANT(S) STEVEN BRETT OSBORNE No. 08-7233 CIVIL TERM
A/K/A STEVEN B. OSBORNE ACCT. #9921f21i
SUSAN E. BARTAK
Type of Action
SERVE SUSAN E. BARTAK AT: - Notice of Sheriff's Sale
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808 Sale Date: JUNE 10, 2009
SERVED
Served and made known to &ASAW ?-. 1341.0-1.2 Defendant, on the 94 do of (+AC4
, 200f' at 4:37 , o'clock g.m., at ?p T4 (,I 1?AEE2E be( VE I M FL 0,01 kC9%30 - rp
, Commonwealth of Pennsylvania, in the manner described below:
Defendant personally served. t? Adult fiunily member with whom Defendant(s) reside(s). Name and Relationship is `Yl'E C, VS$ORN ? rTi/lS1 FNS
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: AJget A46 Height 6" Weight 1-70 Race W Sex AA other
I, N l0 L-1- 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 Sheriffs Sale in the manner as set forth herein, issued in the
captioned case on the date and at the address indicated above.
Sworn to and suWbed
ie this _-$jA day
By:
I.PATRICIA 200 .
G?X?'
CE AT LEAST 3 TIMES. INDICATE DATES & OF SERVICE
E. HA
RRIS ATTEMPTED.
It
sion Expires June 18, 201,
NOT SERVED
On the day of 200_,, at o'clock _.m., Defendant NOT FOUND because:
Moved Unknown No Answer Vacant
10 Attempt: Time: 2°d Attempt: Time:
3rd Attempt: / Time•.
Sworn to and subscribed Attorney for Plaintiff
before me this day DANIEL G. SCHIM M, Esquire - I.D. No 62205
of . 200. One Penn Center at Suburban Station, Suite 1400
Notary: By: 1617 John F. Kennedy Boulevard
Philadelphia, PA 19103-1814
(215) 563-7000
a? Rg?
FILED---- °:nc
OF THE F19%AF?Y
2009 MAR 31 A 11: 0 6
CUM
0 `.
y
PHELAN HALLINAN & SCHMMG, 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 BANK, N.A.
Plaintiff
Court of Common Pleas
Civil Division
V.
CUMBERLAND County
STEVEN BRETT OSBORNE
SUSAN E. BARTAK No. 08-7233 CIVIL TERM
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 December 10,
2008, a true and correct copy of which is attached hereto, made part hereof, and marked as Exhibit
"A"
2. Judgment was entered on February 11, 2009 in the amount of $254,598.22. A
true and correct copy of the praecipe for judgment is attached hereto, made part hereof, and
marked as Exhibit "B".
3. 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.
5. 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 $243,389.99
Interest Through June 10, 2009 $13,776.59
Per Diem $40.01
Late Charges $299.76
Legal fees $1,325.00
Cost of Suit and Title $1,151.50
Sheriffs Sale Costs $0.00
Property Inspections/ Property Preservation $380.00
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 $168.78
TOTAL $260,491.62
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 15, 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: 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 BANK, N.A.
Plaintiff
V.
Court of Common Pleas
Civil Division
CUMBERLAND County
STEVEN BRETT OSBORNE
SUSAN E. BARTAK No. 08-7233 CIVIL TERM
Defendants
MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFF'S MOTION TO REASSESS DAMAGES
1. BACKGROUND OF CASE
STEVEN BRETT OSBORNE and SUSAN E. BARTAK 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 6215 RUN CROSS LANE, ENOLA, PA 17025-1346. 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 Sheriffs 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 Shoppng 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: i?
Phelan Hallinan & Schmieg, LLP
By: ?.
Michele M. Bradford, Esquire
Attorney for Plaintiff
Exhibit "A"
PHELAN HALLINAN & SCHMIEG, LLP
LAWRENCE T. PHELAN, ESQ., Id. No. 32227
FRANCIS S. HALLINAN, ESQ., Id. No. 62695
DANIEL G. SCHMIEG, ESQ., Id. No. 62205
MICHELE M. BRADFORD, ESQ., Id. No. 69849
JUDITH T. ROMANO, ESQ., Id. No. 58745
SHEETAL SHAH-JANI, ESQ., Id. No. 81760
JENINE R. DAVEY, ESQ., Id. No. 87077
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 MCGUINIVESS, ESQ., Id. No. 90134
ONE PENN CENTER PLAZA, SUITE 1400
PHILADELPHIA, PA 19103
(215) 563-7000 192826
WELLS FARGO BANK, N.A.
3476 STATEVIEW BOULEVARD
FORT MILL, SC 29715
Plaintiff
v.
c
C7
tin
cz,
C7
Rim
ATTORNEY FOR PLAINTIFF
COURT OF COMMON PLEAS
CIVIL DIVISION
TERM
NO. 01- 11,,33 l:ivi 1 I`&-k
CUMBERLAND COUNTY
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050 V/6 he
?
co,-rID be fpj;n r8by cq t
Defendants o'49/ ff'pyof ??onct
CIVIL ACTION - LAW d of rocord
-E OLAINT IN MORTGAGE FORECLOSURE
A (Fa
PLEASE AiiJlf(?
File #: 192826
PHELAN HALLINAN & SCHNIIEG, LLP
LAWRENCE T. PHELAN, ESQ., Id. No. 32227
FRANCIS S. HALLINAN, ESQ., Id. No. 62695
DANIEL G. SCHMIEG, ESQ., Id. No. 62205
MICHELE M. BRADFORD, ESQ., Id. NG. 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
JAMS MCGUINNESS, ESQ., Id. No. 90134
ONE PENN CENTER PLAZA, SUITE 1400
PHILADELPHIA, PA 19103
(215) 563-70M 192826
WELLS FARGO BANK, N.A.
3476 STATEVIEW BOULEVARD
FORT MILL, SC 29715
Plaintiff
V.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050
Defendants
ATTORNEY FOR PLAINTIFF
COURT OF COMMON PLEAS
CIVIL DIVISION
TERM
NO.
CUMBERLAND COUNTY
ale hereby certify the
within to be a true and
correct copy of the
CIVIL ACTION - LAW original filed of rtscor,,
COMPLAINT IN MORTGAGE FORECLOSURE
File #: 192826
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 plaintif 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.
i
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
(717) 249-3166
File #. 192926
1. Plaintiff is
WELLS FARGO BANK, N.A.
3476 STATEVIEW BOULEVARD
FORT MILL, SC 29715
2. The name(s) and last known address(es) of the Defendant(s) are:
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050
who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described.
3. On 05/22/2006 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. 1952, Page 110. A copy of the
Mortgage is attached as Exhibit "A".
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 08/01/2008 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 #: 192926
6. The following amounts are due on the mortgage:
Principal Balance $243,389.99
Interest $6,481.62
07/01/2008 through 12/09/2008
(Per Diem $40.01)
Attorney's Fees $1,325.00
Cumulative Late Charges $299.76
05/22/2006 to 12/09/2008
Cost of Suit and Title Search 750.00
Subtotal $252,246.37
Escrow
Credit ($168.78)
Deficit $0.00
Subtotal ($168.78)
TOTAL $252,077.59
7.
8.
If the mortgage is reinstated prior to a Sheriff's 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 #: 192826
9. The mortgage premises are vacant and abandoned.
WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum
of $252,077.59, together with interest from 12/09/2008 at the rate of $40.01 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 M-{0
LAWRE %ALL ESQUIRE
FRANCIS S. H, 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
CHRISTOVALANTE P. FLIAKOS, ESQUIRE
Attorneys for Plaintiff
File #: 192826
LEGAL DESCRIPTION
ALL THAT CERTAIN PARCEL OF REAL PROPERTY,. SITUATE IN HAMPDEN
TOWNSHIP, COUNTY OF CUMBERLAND, COMMONWEALTH OF PENNSYLVANIA,
BEING: UNIT: Lot 27 IN THE PRESERVE, A PLANNED COMMUNITY AS
ESTABLISHED BY FILING OF THE DECLARATION OF COVENANTS, RESTRICTIONS,
EASEMENT AND ESTABLISHMENT OF HOMEOWNERS ASSOCIATION FOR THE
PRESERVES, A PLANNED COMMUNITY IN HAMPDEN TOWNSHIP, CUMBERLAND
COUNTY, PENNSYLVANIA AS RECORDED IN THE OFFICE OF THE COUNTY
RECORDER OF DEEDS IN AND FOR CUMBERLAND COUNTY, PENNSYLVANIA IN
MISC... BOOK 705, PAGE 4220; AND FIRST AMENDMENT IN MISC... BOOK 713, PAGE
2593, (REFERENCING SUBDIVISION Plan RECORDED IN Plan BOOK 88, PAGE 76;
PLAT RECORDED IN RIGHT-OF-WAY Plan BOOK 13, PAGE 54; AND Plan IN Plan BOOK
89, PAGE 101; PLAT RECORDED IN RIGHT-OF-WAY Plan BOOK 13, PAGE 76) AS
AMENDED. BEING PARTICULARLY OF THE SAME PREMISES WHICH DANIEL F.
PUTT, EXECUTOR OF THE LAST WILL AND TESTAMENT OF ANNA MAE PUTT BY
DEED DATED January 30, 2004 AND RECORDED January 30, 2004 IN THE OFFICE OF
THE RECORDER OF DEEDS IN AND FOR CUMBERLAND COUNTY, PENNSYLVANIA
IN DEED BOOK 261, PAGE. 2433, GRANTED AND CONVEYED UNTO CHARTER
HOMES AT THE PRESERVE, INC.,
A PENNSYLVANIA CORPORATION, ITS SUCCESSORS AND ASSIGNS.
SUBJECT TO RESTRICTIONS, RESERVATIONS, EASEMENTS, COVENANTS, OIL, GAS
OR MINERAL RIGHTS OF RECORD, IF ANY. BEING THE SAME PREMISES
File #: 192826
CONVEYED TO STEVEN BRETT OSBORNE AND SUSAN E. BARTAK, HUSBAND AND
WIFE FROM CHARTER HOMES AT THE PRESERVE, INC., A PENNSYLVANIA
CORPORATION BY DEED DATED 05/22/2006, AND RECORDED ON 05/26/2006, AT
BOOK 274, PAGE 3695, IN CUMBERLAND COUNTY, PA.
PARCEL NO. 10-11-3016-054
PROPERTY. BEING: 6215 RUN CROSS LANE
File #: 192826
VERIFICATION
I hereby state that I am the attorney for the 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.RC.P.
1024 (c), and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are
based upon information supplied by Plaintiff and are true and correct to the best of my
knowledge, information and belief.
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.
Ih W. 1%0
Attorney for Plain
DATE:
File #: 192826
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 BANK, N.A.
VS.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECE ANICSBURG, PA 17050-3808
cz °
Attorney for Plaintiff ?? =° o
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fir= g
CUMBERLAND COUNTY
q5ZI
0
COURT OF COMMON PLES `
CIVIL DIVISION
No. 08-7233 CIVIL TXWORIMEV FILE CQPY
PLEASE RETURN
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 STEVEN BRETT
OSBORNE and SUSAN E. BARTAK, Defendant(s) for failure to file an Answer to Plaintiff s
Complaintwifhin 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 $252,077.59
Interest -12/10/2008 to 02/10/2009
520.63
TOTAL $254,598.22
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,
R ?
Daniel G. Schmieg, Esquire
Attorney for Plaintiff
DAMAGES ARE HEREBY ASSESSED AS INDICATED..
DATE:
PHS # 192826 PRO PROTIiY
Exhibit "C"
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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 unsworn falsification to authorities.
Phelan Hallinan & Schmieg, LLP
DATE: By:
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 BANK, N.A.
Plaintiff
Court of Common Pleas
Civil Division
V.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
Defendants
CUMBERLAND County
No. 08-7233 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.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6215 RUN CROSS LANE
ENOLA, PA 17025-1346
DATE: Xp;?
Phelan Hallinan & Schmieg, LLP
By:
Michele M. radford, Esquire
Attorney for Plaintiff
Fi1F -?
OF THE Y,Y
2 C59 APR 2- i l'M 10: 21
`ULINTY
WELLS FARGO BANK, N.A.,
PLAINTIFF
V.
STEVEN BRETT OSBORNE,
SUSAN E. BARTAK,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 08-7233 CIVIL
ORDER OF COURT
AND NOW, this 24th 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 14, 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,
M. L. Ebert, Jr., J.
Michele M. Bradford, Esquire
Attorney for Plaintiff
Steven Brett Osborne
Susan E. Bartak
Defendants
6215 Run Cross Lane
Enola, PA 17025
Or
6 July Breeze Drive
Mechanicsburg, PA 17050
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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 BANK, N.A.
Plaintiff
V.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
Defendants
Court of Common Pleas
Civil Division
: CUMBERLAND County
No. 08-7233 CIVIL TERM
CERTIFICATION OF SERVICE
I hereby certify that a true and correct copy of the Court's April 24, 2009 Rule was sent
to the following individuals on the date indicated below.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
L6?
DATE: 5
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6215 RUN CROSS LANE
ENOLA, PA 17025-1346
Ph an Hallinan & Schmieg, LLP
By: -- n
Mic le M. ra ord, Esquire
Attorney for Plaintiff
RLED-4--,rF1CE
OF THE PROT!jr-NIOTARY
20€19 MAY -8 AM 11: 10
'Tv
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 BANK, N.A.
Plaintiff
V.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
Defendants
ATTORNEY FOR PLAINTIFF
Court of Common Pleas
Civil Division
CUMBERLAND County
No. 08-7233 CIVIL TERM
MOTION TO MAKE RULE ABSOLUTE
WELLS FARGO BANK, N.A., by and through its attorney, Michele M. Bradford, Esquire, hereby
petitions this Honorable Court to make Rule to Show Cause absolute in the above-captioned action, and in
support thereof avers as follows:
1. That it is the Plaintiff in this action.
2. A Motion to Reassess Damages was filed with the Court on April 21, 2009.
3. A Rule was entered by the Court on or about April 24, 2009 directing the
Defendants to show cause why the Motion to Reassess Damages should not be granted. A true
and correct copy of the Rule is attached hereto, made part hereof, and marked Exhibit "A".
4. The Rule to Show Cause was timely served upon all parties on May 6, 2009, in
accordance with the applicable rules of civil procedure. A true and correct copy of the Certificate
of Service is attached hereto, made part hereof, and marked Exhibit "B".
5. Defendants failed to respond or otherwise plead by the Rule Returnable date of
May 14, 2009.
WHEREFORE, Plaintiff requests that this Honorable Court make the Rule to Show
Cause absolute and grant Plaintiff's Motion to Reassess Damages.
WlanjjMichele allinan & Schmie , LLP
DATE: 5110-7 By:
M. Bradford, E ire
Attorney for Plaintiff
f
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 BANK, N.A.
Plaintiff
V.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
Defendants
ATTORNEY FOR PLAINTIFF
Court of Common Pleas
Civil Division
CUMBERLAND County
No. 08-7233 CIVIL TERM
BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO MAKE RULE ABSOLUTE
A Motion to Reassess Damages was filed with the Court on April 21, 2009. A Rule was
entered by the Court on or about April 24, 2009 directing the Defendants to show cause why the
Motion to Reassess Damages should not be granted. The Rule to Show Cause was timely served
upon all parties on May 6, 2009 in accordance with the applicable rules of civil procedure.
Defendant failed to respond or otherwise plead by the Rule Returnable date of May 14, 2009.
WHEREFORE, Plaintiff requests that this Honorable Court make the Rule to Show
Cause absolute and grant Plaintiff s Motion to Reassess Damages.
Phelan Hallinan & Schmieg, LP
AIA,
DATE: S By:
OiclYele M. Bradford, Esq
Attorney for Plaintiff
Exhibit "A"
WELLS FARGO BANK, N.A.,
PLAINTIFF
V.
STEVEN BRETT OSBORNE,
SUSAN E. BARTAK,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 08-7233 CIVIL
ORDER OF COURT
AND NOW, this 24'" 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 14, 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,
- ??-A?, X
M. L. Ebert, Jr., J.
Michele M. Bradford, Esquire
Attorney for Plaintiff
Steven Brett Osborne
Susan E. Bartak
Defendants
6215 Run Cross Lane
Enola, PA 17025
Or
6. July Breeze Drive
Mechanicsburg, PA 17050
bas s x ? COPY hiu t ?,
rt t".= Ir vd, I Mro{I a s try R r*
am as ? sidd W* 4 Qar moo, Pa
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Exhibit "B"
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 Make Rule Absolute 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 sworn penalties of 18 Pa.C.S. 4904 relating to the unsworn falsification of authorities.
P el Hallinan & Schm' g, L P
DATE: S By:
Miche a M. Bradford, squire
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 BANK, N.A.
Plaintiff
Court of Common Pleas
Civil Division
V.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
CUMBERLAND County
No. 08-7233 CIVIL TERM
Defendants
CERTIFICATION OF SERVICE
I hereby certify that true and correct copies of Plaintiff's Motion to Make Rule Absolute
and Brief in Support thereof were served upon the following individuals on the date indicated
below.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
DATE:
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
6215 RUN CROSS LANE
ENOLA, PA 17025-1346
Phelan Hal! inan & Schm'eg, LP
By:
lm?Awvz'-
MUh-e-Fe M. Bradford, Esqu'
Attorney for Plaintiff
PLEC Ivh,r
!`""PY
7 THE
2009 Y 2 1 ),sI 110: 1:
c I W ,%
WELLS FARGO BANK, N.A.
V.
Plaintiff,
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
STEVEN BRETT OSBORNE CIVIL DIVISION
A/K/A STEVEN B. OSBORNE
SUSAN E. BARTAK NO. 08-7233 CIVIL TERM
Defendant(s).
AMENDED AFFIDAVIT PURSUANT TO RULE 3129.1
WELLS FARGO BANK, N.A., 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 ,6215 RUN CROSS LANE, ENOLA, PA 17025-
1346.
1. Name and address of Owner(s) or reputed Owner(s):
Name Last Known Address (if address cannot be
reasonably ascertained, please indicate)
STEVEN BRETT OSBORNE 6 JULY BREEZE DRIVE
A/K/A STEVEN B. OSBORNE MECHANICSBURG, PA 17050-3808
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
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)
WELLS FARGO BANK, N.A.
101 NORTH PHILLIPS AVENUE
SIOUX FALLS, SD 57104
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
6215 RUN CROSS LANE
ENOLA, PA 17025-1346
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
THE PRESERVE NEIGHBORHOOD
ASSOCIATION, INC.
THE PRESERVES HOMEOWNERS'
ASSOCIATION
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
114 FOXSHIRE DRIVE
LANCASTER, PA 17601-3989
301 MARKET STREET
LEMOYNE, PA 17043-1662
MCCABE, WEISBERG, & CONWAY, P.C. 123 SOUTH BROAD STREET, SUITE 2080
PHILADELPHIA, PA 19109
I verify that the statements made in this affidavit are true d correct to the best of my personal
knowledge or information and belief. I understand that se stateme herein are made subject to the
penalties of 18 Pa. C.S.A. § 4904 relating to unsworn fal ' ication to auth ities.
May 5, 2009
DATE
DANIEL G. SCHMI1
Attorney for Plaintiff
. 4k/
WELLS FARGO BANK, N.A.
VS.
STEVEN BRETT OSBORNE
A/K/A STEVEN B. OSBORNE
SUSAN E. BARTAK
: CUMBERLAND COUNTY
: COURT OF COMMON PLEAS
: CIVIL DIVISION
NO. 08-7233 CIVIL TERM
AFFIDAVIT PURSUANT TO RULE 3129.1
AND RETURN OF SERVICE PURSUANT TO
Pa. R.C.P. 405 OF NOTICE OF SALE
'-- Esq. attorney for WELLS FARGO BANK, N.A. hereby verify as
follows:
As required by Pa. R.C.P. 3129.1(a), Notice of Sale has been given to all known
Lienholders and any known interested party in the manner required by Pa. R.C.P. 3129.1(c) on
each of the persons or parties named, at that address set forth on the Affidavit. A copy of the
Certificate of Mailing (Form 3817) and/or Certified Mail Return Receipt stamped by the U.S.
Postal Service is attached hereto as Exhibit "A"
DATE: - Za -C)C '
By:
Lawrence T. Phelan, sq., Id. No. 32227
Francis S. Hallinan, Esq., Id. No. 62695
_,,Ibaniel G. Schmieg, Esq., Id. No. 62205
Michele M. Bradford, Esq., Id. No. 69849
Judith T. Romano, Esq., Id. No. 58745
Sheetal R. 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 J. Mulcahy, Esq., Id. No. 61791
Andrew L. Spivack, Esq., Id. No. 84439
Jaime McGuinness, Esq., Id. No. 90134
Chrisovalante P. Fliakos, Esq., Id. No. 94620
Joshua I. Goldman, Esq., Id. No. 205047
Attorneys for Plaintiff
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MAY 2 2 2009
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
WELLS FARGO BANK, N.A.
Plaintiff
V.
STEVEN BRETT OSBORNE
SUSAN E. BARTAK
Defendants
AND NOW, this 21 day of
Court of Common Pleas
Civil Division
CUMBERLAND County
No. 08-7233 CIVIL TERM
ORDER
N1a? , 2009, upon consideration of Plaintiff's
Motion to Make Rule Absolute, it is hereby ORDERED and DECREED, that the Rule entered
upon Defendants shall be and is hereby made absolute; and Plaintiff's Motion to Reassess
Damages in the above captained matter is hereby GRANTED. The Prothonotary is ordered to
amend the judgment and the Sheriff is ordered to amend the writ nunc pro tunc as follows:
Principal Balance $243,389.99
Interest Through June 10, 2009 $13,776.59
Per Diem $40.01
Late Charges $299.76
Legal fees $1,325.00
Cost of Suit and Title $1,151.50
Sheriffs Sale Costs $0.00
Property Inspections/ Property Preservation $380.00
Appraisal/Brokers Price Opinion $0.00
Mortgage Insurance Premium / $0.00
Private Mortgage Insurance
Non Sufficient Funds Charge
Suspense/Misc. Credits
Escrow Deficit
TOTAL
$0.00
($0.00)
$168.78
$260,491.62
Plus interest from June 10, 2009 through the date of sale at six percent per annum.
Note: The above figure is not a payoff quote. Sheriffs commission is not included in the above
figure.
BY THE COURT
- ?* --v. ?? ? -
J.
192826
a?wo)-ft
05-274
Z H f 6,0
In the Court of Common Pleas of
Cumberland County, Pennsylvania
Writ No. 2008-7233 Civil Term
Wells Fargo Bank, N.A.
VS
Steven Brett Osborne, a/k/a Steven B. Osborne and Susan E. Bartak
Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that
on March 9, 2009 at 1943 hours, he 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,
Steven Brett Osborne, a/k/a Steven B. Osborne and Susan E. Bartak, by making known unto
Steven Brett Osborne, a/k/a Steven B. Osborne and Susan E. Bartak, personally, at, 6 July
Breeze Drive, Mechanicsburg, Cumberland County, Pennsylvania its contents and at the
same time handing to them personally the said true and correct copy of the same
Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on
April 4, 2009 at 0830 hours, he posted a true copy of the within Real Estate Writ, Notice,
Poster and Description, in the above entitled action, upon the property of Steven Brett
Osborne, a/k/a Steven B. Osborne and Susan E. Bartak, located at, 6215 Run Cross Lane,
Enola, 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: Steven
Brett Osborne, a/k/a Steven B. Osborne and Susan E. Bartak, by regular mail to their last
known address of 6 July Breeze Drive, Mechanicsburg, PA 17055. This letter was mailed
under the date of April 2, 2009 and never returned to the Sheriffs Office
R. Thomas Kline, Sheriff, who being duly sworn according to law, states that after
due and legal notice had been given according to law, he exposed the within described
premises at public venue or outcry at the Courthouse, Carlisle, Cumberland County,
Pennsylvania on June 10, 2009 at 10:00 o'clock A.M. He sold the same for the sum of
$330,000.00 to Attorney Kimberly Bonner,on behalf of Bay Harbor Loan Servicing, LLC, of,
4 State Road, # 520, Media, PA 19063, being the buyer in this execution, paid to Sheriff R.
Thomas Kline the sum of $348,537.88.
Sheriff's Costs:
Docketing 30.00
Poundage 5,400.00
Posting Bills 15.00
Advertising 15.00
Acknowledging Deed 48.00
Auctioneer
Law Library
Prothonotary
Certified Mail
Milage
Levy
Surcharge
Law Journal
Patriot News
Share of Bills
Distribution of Proceeds
Sheriff's Deed
So Answers,
R. Thomas Kline, Sheriff
By 0 ? a?U? _??
Real Estate Coordinator
FILE,"" -, -
10.00, ':;
.50
2.00 ?}0 ? C
Ll#U
jL ',•' h;Y3 J b
5.71 , .l a
#
18.00
15.00
30.00`
355.00 .
305.85
15.434
25.00
49.50
6,339.99 '7/r.'/a9
4 V
? C.
??"5??- i-
u2 7U?5?
c ,
i
SNELBAKER & BRENNEMAN, P. C.
ATTORNEY AT LAW
44 W. Main Street
Mechanicsburg, PA 17055
TITLE REPORT
TO: Sheriff of Cumberland County
RE: Sheriffs Sale No. 58 held June 10, 2009
EFFECTIVE DATE: June 10, 2009
PREMISES: 6215 Run Cross Lane, Hampden Township, Cumberland County, Pennsylvania,
Tax Parcel No. 10-11-3016-054 (the "Premises")
RECITAL: Being the same premises which Charter Homes at the Preserve, Inc. by its deed
dated May 22, 2006 and recorded May 26, 2006 in the Office of the Recorder of
Deeds in and for Cumberland County, Pennsylvania in Deed Book 274, Page
3695, granted and conveyed unto Steven Brett Osborne and Susan E. Bartak,
husband and wife.
The Premises identified above and as more fully described in the legal description
attached hereto and incorporated by reference herein as "Exhibit A" is subject to the below items
and exceptions. All recording and docket locations identified are in the Office of the Recorder of
Deeds of Cumberland County and/or the Court of Common Pleas of Cumberland County.
EXCEPTIONS:
Claims and charges for improvements and repairs to the Premises or delivery of materials
thereto for which payment has not been made.
2. Possible unfiled Mechanics Liens and municipal claims, charges and assessments.
3. The rights or claims of any tenants or other parties in possession.
4. Support arrearages of any owner or previous owner of the Premises pursuant to Act 58 of
1997, as amended.
5. Any environmental liens or claims filed or on record in the Federal District Court.
6. Payment of state and local real estate transfer tax, if applicable.
7. Any secured transactions with respect to the Premises.
8. The area of the Premises is not certified.
9. Those matters which a view or inspection of the Premises would reveal.
10. The accuracy of the measurements and dimensions of the Premises or the rights or title of
or through any person or persons in possession of same, conflicts with adjoining
property, encroachments, projections or any other matter disclosed by an accurate survey
of the Premises.
11. The right of use as may be determined by any applicable municipal zoning ordinance or
regulation.
12. Any matter not of record at the Court House as of the effective date of this Title Report
and subsequent to the date hereof.
13. Any tax increase based on additional assessment made by reason of new construction or
major improvements.
14. The absence or failure of proper and required notice being given to all owners and
holders of liens and encumbrances intended to be divested by the Sheriffs sale and
procedural defects by any judgment creditor or lienholder executing on the Premises
giving rise to the Sheriffs sale noted above.
15. Identity and legal competency of all parties at any closing or conveyance of the Premises
should be established.
16. Access to the Premises by public road or street is not certified.
17. Suitability or existence of sewer and water facilities on or available to the Premises is not
certified.
18. Real Estate taxes on the Premises due and payable but not turned over for collection to
the Tax Claim Bureau.
19. All Real Estate taxes on the Premises assessed but not billed as well as those Real Estate
taxes accruing on and after January 1, 2009.
20. Delinquent real estate taxes in the amount of $5,601.92 payable to the Tax Claim Bureau
and any interest and penalties accrued thereon until final payment.
21. Mortgage in the amount of $250,000.00 from Steven Brett Osborne and Susan E. Bartak
to Wells Fargo Bank, N. A. dated May 22, 2006 and recorded May 26, 2006 in
Mortgage Book 1952, Page 110.
-2-
22. Mortgage (open-end) in the amount of $200,000.00 from Steven Brett Osborne and Susan
E. Bartak to Wells Fargo Bank, N.A. dated May 4, 2007 and recorded May 25, 2007 in
Mortgage Book 1993, Page 2672 as modified September 10, 2007 at Instrument No.
200735156 to $330,000.00.
23. Judgment against Steven Brett Osborne and Susan E. Bartak entered February 11, 2009
in favor of Wells Fargo Bank, N.A. in the amount of $254,598.22 amended May 27, 2009
to the amount of $260,491.62/to No. 2008-7233, a mortgage foreclosure action with
respect to the mortgage recorded in Mortgage Book 1952, Page 110.
24. Judgment against Steven Brett Osborne and Susan E. Bartak in favor of Wells Fargo
Bank, N.A. entered May 19, 2009 in the amount of $342,429.69 to No. 2009-2206, a
mortgage foreclosure action with respect to the mortgage recorded in Mortgage Book
1993, Page 2672.
25. Subject to the Declaration recorded in Miscellaneous Book 705, Page 4220 and amended
in Miscellaneous Book 713, Page 2593.
26. Subject to all building setback lines, easements, notes, conditions, restrictions and all
other matters appearing in the Plans of The Preserve recorded in Plan Book 88, Page 76
and Plan Book 89, Page 101.
27. Subject to all conditions and items noted in Right-of-Way Plan Book 13, Page 54 and
Right-of-Way Plan Book 13, Page 76.
28. Subject to the rights granted PPL Electric Utilities Corp. in Miscellaneous Book 727,
Page 1218 and Miscellaneous Book 723, Page 2629.
29. Subject to the Deed of Dedication granted to Hampden Township Sewer Authority in
Deed Book 266, Page 3436.
30. Subject to the rights granted Comcast of Harrisburg in Miscellaneous Book 712, Page
2163.
31. Subject to the rights granted Verizon Pennsylvania, Inc. in Miscellaneous Book 711,
Page 4642.
32. Subject to the rights granted Pennsylvania American Water Co. in Miscellaneous Book
711, Page 2491.
33. Subject to the rights granted PPL Electric Utilities Corp. and Verizon Pennsylvania, Inc.
in Miscellaneous Book 711, Page 10.
34. Subject to the rights granted Hampden Township Sewer Authority in Miscellaneous
Book 707, Page 2980.
-3-
35. Subject to the rights granted Norman R. Dudanowicz in Miscellaneous Book 314, Page
981.
36. Subject to the rights of ingress, egress and regress noted in Deed Book "D", Volume 15,
Page 287.
37. Subject to the restrictions, reservations and easements, if any, in the survey of W. G.
Rachel, R.S. dated October 9, 1952 cited in Deed Book "D", Volume 15, Page 287,
which survey is not of record and further subject to any defect in title by reason of said
survey not being recorded.
38. Subject to the rights of others in and to those portions of the Premises adjoining or within
6215 Run Cross Lane, Hampden Township.
The undersigned shall not be bound by this Title Report to any person, firm or entity
other than the Sheriff of Cumberland County.
Snelbaker & Brenneman, P. C.
By:
Keith O. Brenneman
-4-
• REAL ESTATE SALE NO. 58
Writ No. 2008-7233 Civil
Wells Fargo Bank, N.A.
VS.
Steven Brett Osborne a/k/a
Steven B. Osborne and
Susan E. Bartak
Atty.: Daniel Schmieg
LEGAL DESCRIPTION
ALL THAT CERTAIN parcel of real
property, situate in Hampden Town-
ship, County of Cumberland, Com-
monwealth of Pennsylvania, being:
Unit: Lot 27 in The Preserve, a
Planned Community as established
by the filing of the Declaration of Cov-
enants, Restrictions, Easement and
Establishment of Homeowners Asso-
ciation for The Preserves, a Planned
Community in Hampden Township,
Cumberland County, Pennsylvania
as recorded in the Office of the Re-
corder of Deeds in and for Cumber-
land County, Pennsylvania in Misc.
Book 705, Page 4220; and First
Amendment in Misc. Book 713, Page
2593, (referencing Subdivision Plan
recorded in Plan Book 88, Page 76;
Plat recorded in right-of-way Plan
Book 13, Page 54; and Plan in Plan
Book 89, Page 101; Plat recorded in
right-of-way Plan Book 13, Page 76)
as amended
BEING PART OF THE SAME
PREMISES which Daniel F. Putt,
Executor of the Last Will and Tes-
tament of Anna Mae Putt by deed
dated January 30, 2004 and recorded
January 30, 2004 in the Office of the
Recorder of Deeds in and for Cumber-
land County, Pennsylvania in Deed
Book 261, Page 2433, granted and
conveyed unto Charter Homes At The
Preserve, Inc., a Pennsylvania Corpo-
ration, its successors and assigns.
TITLE TO SAID PREMISES IS
VESTED IN Steven Brett Osborne and
Susan E. Bartak, h/w, by Deed from
Charter Homes at the Preserve, Inc.,
a Pennsylvania Corporation, dated
05/22/2006, recorded 05/26/2006
in Book 274, Page 3695.
PREMISES BEING: 6215 RUN
CROSS LANE, ENOLA, PA 17025-
1346.
PARCEL NO. 10-11-3016-054.
EXHIBIT A
WELLS-FArRGO BANK, N.A.
CUMBERLAND COUNTY
Plaintiff,
V. COURT OF COMMON PLEAS
STEVEN BRETT OSBORNE CIVIL DIVISION
A/K/A STEVEN B. OSBORNE ,
SUSAN E. BARTAK NO. 08-7233 CIVIL TERM
Defendant(s). .
AFFIDAVIT PURSUANT TO RULE 3129.1
WELLS FARGO BANK, N.A., 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 ,6215 RUN CROSS LANE, ENOLA, PA 17025-
1346.
1. Name and address of Owner(s) or reputed Owner(s):
Name Last Known Address (if address cannot be
reasonably ascertained, please indicate)
STEVEN BRETT OSBORNE 6 JULY BREEZE DRIVE
A/K/A STEVEN B. OSBORNE MECHANICSBURG, PA 17050-3808
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
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)
WELLS FARGO BANK, N.A.
101 NORTH PHILLIPS AVENUE
SIOUX FALLS, SD 57104
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
1.
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
THE PRESERVE NEIGHBORHOOD
ASSOCIATION, INC.
THE PRESERVES HOMEOWNERS'
ASSOCIATION
6215 RUN CROSS LANE
ENOLA, PA 17025-1346
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
114 FOXSHIRE DRIVE
LANCASTER, PA 17601-3989
301 MARKET STREET
LEMOYNE, PA 17043-1662
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 false statements herein are made subject to the
penalties of 18 Pa. C.S.A. § 4904 relating to unworn falsification to Authorities.
February 23, 2009
DATE
ESQUIRE
Plaintiff
?r
a
WELLS FARGO BANK, N.A.
Plaintiff,
V.
CUMBERLAND COUNTY
No. 08-7233 CIVIL TERM
STEVEN BRETT OSBORNE A/K/A STEVEN B.
OSBORNE
SUSAN E. BARTAK
Defendant(s).
February 23, 2009
TO: STEVEN BRETT OSBORNE
A/K/A STEVEN B. OSBORNE
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
SUSAN E. BARTAK
6 JULY BREEZE DRIVE
MECHANICSBURG, PA 17050-3808
* *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
ANA YTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF ALIEN AGAINST PROPERTY. * *
Your house (real estate) at, 6215 RUN CROSS LANE, ENOLA, PA 17025-1346, 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 $254,598.22 obtained by
WELLS FARGO BANK, N.A. (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.
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 Sheriff s 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 parcel of real property, situate in Hampden Township, County of Cumberland,
Commonwealth of Pennsylvania, being:
Unit: Lot 27 in The Preserve, a Planned Community as established by the filing of the Declaration of
Covenants, Restrictions, Easement and Establishment of Homeowners Association for The Preserves, a
Planned Community in Hampden Township, Cumberland County, Pennsylvania as recorded in the
Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Misc. Book 705, Page
4220; and First Amendment in Misc. Book 713, Page 2593, (referencing Subdivision Plan recorded in
Plan Book 88, Page 76; Plat recorded in right-of-way Plan Book 13, Page 54; and Plan in Plan Book 89,
Page 101; Plat recorded in right-of-way Plan Book 13, Page 76) as amended
BEING PART OF THE SAME PREMISES which Daniel F. Putt, Executor of the Last Will and
Testament of Anna Mae Putt by deed dated January 30, 2004 and recorded January 30, 2004
in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Deed
Book 261, Page 2433, granted and conveyed unto Charter Homes At The Preserve, Inc., a
Pennsylvania Corporation, its successors and assigns.
TITLE TO SAID PREMISES IS VESTED IN Steven Brett Osborne and Susan E. Bartak, h/w, by
Deed from Charter Homes at the Preserve, Inc., a Pennsylvania Corporation, dated 05/22/2006,
recorded 05/26/2006 in Book 274, Page 3695.
PREMISES BEING: 6215 RUN CROSS LANE, ENOLA, PA 17025-1346
PARCEL NO. 10-11-3016-054
WRIT OF EXECUTIO!l and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA) NO 08-7233 Civil
COUNTY OF CUMBERLAND) CIVIL ACTION - LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due WELLS FARGO BANK, N. A., Plaintiff (s)
From STEVEN BRETT OSBORNE a/k/a STEVEN B. OSBORNE and SUSAN E. BARTAK
(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 $254,598.22
L.L. $.50
Interest from 2/11/09 - 6/10/09 (per diem - $41.85) -- $5,022.00 and Costs
Atty's Comm %
Atty Paid $185.50
Plaintiff Paid
Date: 2/25/09
Due Prothy $2.00
Other Costs
Curtis R. Lon o h of
(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
Real Estate Sale # 58
On February 27, 2009 the Sheriff levied upon the
defendant's interest in the real property situated in
Hampden Township, Cumberland County, PA
Known and numbered as 6215 Run Cross Lane, Enola,
More fully described on Exhibit "A" filed
with this writ and by this reference incorporated herein.
Date: February 27, 2009
By:
PROOF OF PUBLICATION OF NOTICE
IN CUMBERLAND LAW JOURNAL
(Under Act No. 587, approved May 16, 1929), P. L.1784
COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF CUMBERLAND :
Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and
State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law
Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid,
was established January 2, 1952, and designated by the local courts as the official legal
periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly
issued weekly in the said County, and that the printed notice or publication attached hereto is
exactly the same as was printed in the regular editions and issues of the said Cumberland Law
Journal on the following dates,
viz:
May 1, May 8, and May 15, 2009
Affiant further deposes that he is authorized to verify this statement by the Cumberland
Law Journal, a legal periodical of general circulation, and that he is not interested in the subject
matter of the aforesaid notice or advertisement, and that all allegations in the foregoing
statements as to time, place and character of publication are true.
REAL ESTATE SALE NO. 58
Writ No. 2008-7233 Civil
Wells Fargo Bank, N.A.
vs.
Steven Brett Osborne a/k/a
Steven B. Osborne and
Susan E. Bartak
Atty.: Daniel Schmieg
LEGAL DESCRIPTION
ALL THAT CERTAIN parcel of real
property, situate in Hampden Town-
ship, County of Cumberland, Com-
monwealth of Pennsylvania, being:
Unit: Lot 27 in The Preserve, a
Planned Community as established
by the filing of the Declaration of Cov-
enants, Restrictions, Easement and
Establishment of Homeowners Asso-
ciation for The Preserves, a Planned
Community in Hampden Township,
Cumberland County, Pennsylvania
as recorded in the Office of the Re-
corder of Deeds in and for Cumber-
land County, Pennsylvania in Misc.
Book 705, Page 4220; and First
Amendment in Misc. Book 713, Page
2593, (referencing Subdivision Plan
4--? 4K,-
isa Marie Coyne, ditor
SWORN TO AND SUBSCRIBED before me this
day of May, 2009
recorded in Plan Book 88, Page 76; Notary
Plat recorded in right-of-way Plan
Book 13, Page 54; and Plan in Plan
Book 89, Page 101; Plat recorded in
right-of-way Plan Book 13, Page 76)
as amended NOTARIAL SEAL
BEING PART OF THE SAME DEBORAH A COLLINS
PREMISES which Daniel F. Putt, Notary Public
Executor of the Last Will and Tes- CARLISLE BORO, CUMBERLAND COUNTY
tament of Anna Mae Putt by deed My Commission Expires Apr 28
2010
dated January 30, 2004 and recorded .
January 30, 2004 in the Office of the
Recorder of Deeds in and for Cumber-
land County, Pennsylvania in Deed
Book 261, Page 2433, granted and
conveyed unto Charter Homes At The
Preserve, Inc., a Pennsylvania Corpo-
ration, its successors and assigns.
TITLE TO SAID PREMISES IS
VESTED IN Steven Brett Osborne and
Susan E. Bartak, h/w, by Deed from
Charter Homes at the Preserve, Inc.,
a Pennsylvania Corporation, dated
05/22/2006, recorded 05/26/2006
in Book 274, Page 3695.
PREMISES BEING: 6215 RUN
CROSS LANE, ENOLA, PA 17025-
1346.
PARCEL NO. 10-11-3016-054.
The Patriot-News Co.
512 ftrket St.
Harrisburg, PA 17101'
Inquiries - 717-255-8213
CUMBERLAND COUNTY SHERIFFS OF
CUMBERLAND COUNTY COURT HOUSE
the Patriot News
Now you know
CARLISLE PA 17013
THE PATRIOT NEWS
THE SUNDAY PATRIOT NEWS
Proof of Publication
Under Act No. 587, Approved May 16, 1929
Commonwealth of Pennsylvania, County of Dauphin) ss
Joseph A. Dennison, being duly sworn according to law, deposes and says:
That he is the Assistant Controller of The Patriot News Co., a corporation organized and existing under the laws of the
Commonwealth of Pennsylvania, with its principal office and place of business at 812 to 818 Market Street, in the City of
Harrisburg, County of Dauphin, State of Pennsylvania, owner and publisher of The Patriot-News and The Sunday Patriot-News
newspapers of general circulation, printed and published at 812 to 818 Market Street, in the City, County and State aforesaid; that
The Patriot-News and The Sunday Patriot-News were established March 4th, 1854, and September 18th, 1949, respectively, and
all have been continuously published ever since;
That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular
daily and/or Sunday/ Metro editions which appeared on the date(s) indicated below. That neither he nor said Company is
interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time,
place and character of publication are true; and
That he has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on
behalf of The Patriot-News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the
stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds
in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317.
PUBLICATION COPY
Real Estelle ode NO. Go
writ NO. 20M7211113 Chi T"
weds Faryo bsMc, N.A.
Steven Brett Osborne, &We
Steven 0.Osbome and
Susan E.Bartak
Attomey Dank! 8chrnlp
LEGAL DESCRIPTION
ALL THAT CERTAIN parcel of real property,
situate in Hampden Township, County of
Cumberland, Commonwealth of Pennsylvania,
being:
Unit: Lot 27 in The Preserve, a Planned
Community as established by the filing of the
Declaration of Covenants, Restrictmm,
Easement and Establishment of Homeowners
Association for The Preserves, a Planned
Community in Hampden Township, Cumberland
County, Pennsylvania as recorded in the office
of the Recorder of Dada in and for Cumberland
County, Pennsylvania in Misc. Book 705, Page
4220; and First Amendment in Misc. Book 713,
Page 2593, (teftrencing Subdivision Plan
recorded in Plan took 88, hp 76; Plat
recorded in right-of--way Plan Book 13, Page 54;
and Plan in Pia Book 89, Page 101; Plat
recorded in fi&4-way Plan Book 13,Page76)
as amended.
This ad ran on the date(s) shown below:
04/24/09
05/01/09
05/08/09
Sworn &..aF,6,,9db,9cri4bd before me tois
Notary
?..........
May, 2009 A.D.
r
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Sherrie L Kisner, Notary Public
Clly of HantWrgi Dauphin Courtly
My Comrnissim E)pires Nov. 26, 2011
Member, Pennsylvania Association of Notaries
BEING PART OF THE SAME PREMISES
which Daniel P. Putt, ExedRor of the Last Will
and Testament of Anna We hit by deed dated
January 30,2004 and recorded January 30, 2004
in the Office of the Recorder of Dada in and for
Cumberland County, Pennsylvania in Deed
Book 261, Page 2433, granted and conveyed
man Clasher Homes At The'Preserve, Inc., a
Pennsylvania Corporation, its successors and
1151401.
T To SAID PREMISES IS VESTED IN
Steven Breit Oahe= ad Sum E. Bartalr, hlw,
by Deed from Charier Homes at the Preserve,
Inc., a Pennsylvar is C wn, dated 05/22/
2006, recorded WMn* in Book 274, Page
3695.
PRNWM BOM: 6213 RUN CRM LAM
WM A, PA 17025-1346
MWMNO.10-11-3016-054
SCHEDULE OF DISTRIBUTION
SALE NO. 58
Date Filed: 7/1/09
Writ No. 2008-7233 Civil Term
Wells Fargo Bank, N.A.
VS
Steven Brett Osborne, A/K/A Steven B. Osborne and Susan E. Bartak
6215 Run Cross Lane
Enola, PA 17025-1346
Sale Date: June 10, 2009
Buyer: Bay Harbor Loan Servicing, LLC
Bid Price: $ 330,000.00
Real Debt: $260,491.62 - Order to Reassess Damages 5/27/09
Interest:
Attorney Writ Costs:
Total: $ 260,491.62
DISTRIBUTION:
Receipts:
Cash on Account (02/02/2009): $ 1,500.00
Cash on Account (06/10/2009): 33,000.00
Cash on Account (06/25/2009): 315,537.88
Total Receipts: $350,037.88
Disbursements:
Sheriff s Costs
Legal Search
Transfer Tax, State
Transfer Tax, Local
Cumberland County Tax Claim Bureau
Michael Langan, Hampden Township Tax Collector
Attorney Daniel Schmieg
Wells Fargo Bank, N.A. (2008-7233)
Wells Fargo Bank, N.A. (2009-2206)
Total Disbursements:
Balance for distribution:
So Answers:
$6,339.99
300.00
6,418.94
6,418.94
5,638.59
1,377.44
1,500.00
260,491.62
61,552.36
($350,037.88)
00.00
R. Thomas Kline
Sheriff
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
SS:
I, Robert P. Ziegler, Recorder of Deeds in and for said County and State do hereby certify that
the Sheriff's Deed in which BAY HARBOR LOAN SERVICING LL C is the grantee the same having
been sold to said grantee on the 10 day of JUNE A.D., 2009, under and by virtue of a writ Execution
issued on the 25 day of FEB, A.D., 2009, out of the Court of Common Pleas of said County as of Civil
Term, 2008 Number 7233, at the suit of WELLS FARGO BANK N A against STEVEN BRETT
OSBORNE AKA STEVEN B & SUSAN E BARTAK is duly recorded as Instrument Number
200924431.
IN TESTIMONY WHEREOF, I have hereunto set my hand
and seal of said office this l day of
of Deeds
Kagdar C4 Daads, Cumberind Counly, Carly. PA
W C"Mmion IN*as Ow FWm Monday of Jan. 2010
FILED- "i:; v E
J-Tr`_.
OP THE o i , i.
PROPERTY SETTLEMENT AGREEMENT 2010 JAN ZO PH 2: 4 9
This is a Property Settlement Agreement entered into this "QV day o&"19"t 10 )
2099''by and between ANTHONY F. DAVIS, of Cumberland County, Pennsylvania
(hereinafter referred to as "Husband"),
and
EMILY O. DAVIS, of Cumberland County, Pennsylvania (hereinafter referred to as
"Wife").
WITNESSETH:
WHEREAS, Husband and Wife were lawfully married on October 11, 1986, and;
WHEREAS, two children have been conceived of this marriage: Eleanor J. Davis
whose date of birth is September 3, 1993 and Christopher E. Davis whose date of birth is
December 13, 1995; and
WHEREAS, unhappy differences have arisen between Husband and Wife in
consequence of which they are now living separate and apart from each other; and
WHEREAS, Husband and Wife are now in the process of obtaining a divorce,
and, consequently, they desire to settle and determine finally and for all time both their
respective financial and property rights, including any and all claims which either of them
may have against the other.
NOW THEREFORE, in consideration of this Property Settlement Agreement,
and of the mutual promises, covenants and undertakings set forth herein, and
incorporating the above "WHEREAS" clauses herein by reference, the parties hereto,
each intending to be legally bound, hereby agree as follows:
1. SEPARATION: It shall be lawful for each party at all times hereafter to
live separate and apart from the other party at such place as he or she may from time to
1
time choose or deem fit. The foregoing provisions shall not be taken as an admission on
the part of either party of the lawfulness or unlawfulness of the causes leading to their
living apart.
2. INTERFERENCE: Each party shall be free from interference, authority
and contact by the other, as fully as if he or she were single and unmarried except as may
be necessary to carry out the provisions of this Agreement. Neither party shall molest the
other or attempt or endeavor to molest the other, nor compel the other to cohabit with the
other, or in any way harass or malign the other, nor in any way interfere with the other's
peaceful existence, separate and apart from the other.
3. WIFE'S DEBTS: Wife represents and warrants to Husband that since the
separation she has not and in the future she will not contract or incur any debt or liability
for which Husband or his estate might be responsible, and that she shall indemnify and
save harmless Husband from any and all claims or demands incurred by her.
4. HUSBAND'S DEBTS: Husband represents and warrants to Wife that
since the separation he has not and in the future he will not contract or incur any debt or
liability for which Wife or her estate might be responsible, and that he shall indemnify
and save harmless Wife from any and all claims or demands made against her by reason
of debts or obligations incurred by him.
5. OUTSTANDING JOINT DEBTS: All debts, obligations or liabilities
incurred at any time in the past by either of the parties will be paid promptly by the party
which incurred such debt, obligation or liability, unless except as otherwise specifically
set forth in this Agreement. Each of the parties hereto further promises, covenants and
agrees that each will now and at all times hereafter save harmless and keep the other or
2
his or her estate indemnified and saved harmless from all debts or liabilities incurred by
him or her, as the case may be, and from all actions, claims and demands whatsoever
with respect thereto, and from all costs, legal or otherwise, and counsel fees whatsoever
appertaining to such actions, claims and demands.
Neither party shall, after the date of this Agreement, contract or incur any debt or
liability for which the other or his or her property might be responsible, and shall
indemnify and save harmless the other from any and all claims or demands made against
her or him by reason of debts or obligations incurred by her or him, and from all costs,
legal costs and counsel fees incurred in connection therewith unless provided to the
contrary herein.
6. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT ANNUITIES,
PENSION AND RETIREMENT ACCOUNTS: Husband and Wife are owners of
individual savings, checking and money market accounts, certificates of deposit,
annuities, pension and retirement accounts, and Husband hereby releases all claims in and
to all accounts in the name of Wife, and Wife hereby releases all claims in and to all
accounts in the name of Husband, and each party shall retain as his or her separate
property each account listed in the subsections below as his/her assets. Husband and
Wife agree to sign, upon request and after execution of this Agreement, any titles or any
other documents reasonably necessary to give effect to this Section.
a. Husband will become the sole and separate owner of the following
accounts: Husband's Fidelity-TNC 401K; Husband's TIAA Crefl/WPC - 403B account;
Husband's New England Financial Annuity; Husband's Guardian Annuity; and
Husband's Sovereign Bank IRA-CD.
b. Wife will become the sole and separate owner of the following
accounts: Wife's Invesco Aim Constellation account; the Jointly owned Oppenheimer
Equity account; the Jointly owned Invesco Aim Charter account; Wife's Gannet
3
Flemming 401K; Wife's Fidelity-Shaw 441K; and Wife's Gannet Fleming Pension.
C. Upon execution of this Agreement by both parties, Wife will pay Husband
the sum of $3,818.12. Said sum is paid in equitable distribution and not as alimony.
7. HUSBAND'S RELEASE: Husband does hereby release, remise,
quitclaim, and forever discharge Wife and the Estate of Wife from any and all claims that
he now has or may hereafter have against Wife, or in, to, or against her Estate or any part
thereof, whether arising out of any former contracts, agreements, engagements, or
liabilities of Wife, or by way of dower or claim in the nature of dower, spouse's right or
under any intestate laws or the right to take against Wife's Will, or for equitable
distribution, support, alimony, alimony pendente lite, or maintenance of any other nature
whatsoever, excepting only those rights accruing to Husband under this Postnuptial
Agreement.
8. WIFE'S RELEASE: Wife does hereby release, remise, quitclaim, and
forever discharge Husband and the Estate of Husband from any and all claims that she
now has or may hereafter have against Husband, or in, to, or against his Estate or any part
thereof, whether arising out of any former contracts, agreements, engagements, or
liabilities of Husband, or by way of dower or claim in the nature of dower, spouse's right
or under any intestate laws or the right to take against Husband's Will, or for equitable
distribution, support, alimony, alimony pendente lite, or maintenance of any other nature
whatsoever, excepting only those rights accruing to Wife under this Postnuptial
Agreement.
9. MUTUAL INDEMNIFICATION: Each party represents that no debts,
liabilities, or obligations have been incurred or contracted for which the other party or the
Estate of the other party may be responsible or liable, except those specifically identified
4
in this Agreement.
Each party hereto shall hereafter keep the other and his or her heirs and personal
representatives indemnified and saved harmless against and from all debts and liabilities
contracted for or incurred by or on behalf of the indemnifying party, and against and from
all actions, proceedings, claims, demands, costs, attorneys' fees and expenses incurred in
respect to any such debts or liabilities, excepting, however, obligations of the parties
hereto to each other under this Agreement.
10. DIVISION OF REAL PROPERTY: Husband and Wife owned jointly
the marital residence, situated at 2929 Beverly Road, Camp Hill, Cumberland County,
Pennsylvania. Husband and Wife agree that Wife will become the sole and exclusive
owner of the marital residence. Husband has already transferred all right, title and
interest in and to the real estate formerly titled as tenants by the entireties to the Wife.
Wife has refinanced the marital residence into her name alone. Husband agrees to
execute any additional deeds, documents, or papers necessary to effect such transfer of
title should the same be necessary.
11. DIVISION OF PERSONAL PROPERTY: The parties have divided
between them, to their mutual satisfaction, their personal property and the personal
effects, household furniture and furnishings, and all other articles of personal property
which have theretofore been used by them in common, and neither party will make any
claim to any items of personal property which are now in the possession or under the
control of the other. Should it become necessary, the parties each agree to sign any titles
or documents necessary to give effect to this paragraph upon request.
12. AUTOMOBILES: Husband and Wife agree that Husband shall be the
sole and separate owner of the 1994 Toyota Corolla and Wife shall become the sole and
5
separate owner of the 2000 Mazda MPA Minivan. Husband and Wife agree to assume all
responsibility for any outstanding debt balance on his or her respective vehicle,
indemnifying and holding the other harmless from any financial responsibility arising
from nonpayment thereon. Husband and Wife agree to execute any and all instruments
and documents necessary in order to effectuate the transfer of title to said automobiles.
13. LIFE INSURANCE POLICIES: Husband and Wife agree to waive
any and all claims and relinquish all rights and interest they may have in any and all life
insurance policies of the other.
14. CUSTODY OF THE CHILDREN: Husband and Wife will share joint
legal custody of the parties' minor children. Wife shall have primary physical custody of
the parties' minor children and Husband will have partial physical custody at such times
as the parties agree.
Should either party decide to relocate out of the Borough of Camp Hill with the
children, he/she must either get the other parent's consent to do so or seek the Court's
permission.
15. BREACH: If either party breaches any provision of this Agreement, the
other party shall have the right, at his or her election, to sue for damages for such breach,
to sue for specific performance, and to seek such other remedies or relief as may be
available to him or her, and the party breaching this contract shall be responsible for
payment of legal fees and costs incurred by the other in enforcing their rights under this
Agreement.
16. ADDITIONAL INSTRUMENTS: Each of the parties shall from time to
time, at the request of the other, execute, acknowledge, and deliver to the other party any
6
and all further instruments that may be reasonably required to give full force and effect to
the provisions of this Agreement.
17. VOLUNTARY EXECUTION: Wife has employed and had the benefit
of counsel from Elizabeth S. Beckley, Esquire, as her attorney. Husband acknowledges
that he has had the opportunity to employ counsel of his choice, but has declined to do so.
Husband also acknowledges that Elizabeth S. Beckley, Esquire, is Wife's counsel alone
and she has not and will not provide Husband with any legal advice regarding this
Property Settlement Agreement or any other matter related to the parties' divorce.
Each party acknowledges that he or she fully understands the facts and has been
fully informed as to his or her legal rights and obligations, and each party acknowledges
and accepts that this Agreement is, under the circumstances, fair and equitable, and that it
is being entered into freely and voluntarily after having received such advice and/or with
such knowledge as each party desires, and that execution of this Agreement is not the
result of any duress or undue influence and that it is not the result of any collusion or
improper or illegal agreement or agreements. Also, each party hereto acknowledges that
under the Pennsylvania Divorce Reform Act, the Court has the right and duty to
determine all marital rights of the parties, including divorce, alimony, alimony pendente
lite, equitable distribution of all marital property or property owned or possessed
individually by the other, counsel fees and costs of litigation and, fully knowing the same
and being advised of his or her rights thereunder, each party hereto still desires to execute
this Agreement, acknowledging that the terms and conditions set forth herein are fair,
just, and equitable to each of the parties, and each party waives their respective right to
have the Court of Common Pleas or any Court of competent jurisdiction make any
determination or order affecting the respective parties' right to a alimony, alimony
pendente lite, equitable distribution of all marital property, counsel fees and costs of
litigation.
7
18. ENTIRE AGREEMENT: This Agreement contains the entire
understanding of the parties, and there are no representations, warranties, covenants, or
undertakings other than those expressly set forth herein. This Agreement shall be binding
upon the parties hereto, and there respective heirs, executors, administrators and assigns.
19. MODIFICATION AND WAIVER: A modification or waiver of any of
the provisions of this Agreement shall be effective only if made in writing and executed
by both parties with the same formality as this Agreement. The failure of either party to
insist upon strict performance of any of the provisions of this Agreement shall not be
construed as a waiver of any subsequent default of the same or similar nature.
20. SEVERABILITY: If any provision of this Agreement is held by a court
of competent jurisdiction to be void, invalid or unenforceable, the remaining provisions
hereof shall nevertheless survive and continue in full force and effect without being
impaired or invalidated in any way.
21. INCORPORATION: In the event that the parties obtain a divorce, a
divorce decree issued by a Court of competent jurisdiction may incorporate the terms of
this Agreement, but such incorporation shall not operate as a merger of this Agreement
into the divorce decree, and this Agreement shall continue in full force and effect
independently of such divorce decree.
22. DATE OF EXECUTION/EFFECTIVE DATE: The "date of
execution" or "execution date" of this Agreement shall be defined as the date upon which
the parties signed the Agreement if they did so on the same date, or if not on the same
date, then the date on which the Agreement was signed by the last party to execute this
8
Agreement. This Agreement shall become effective and binding upon both parties on the
execution date.
23. DESCRIPTIVE HEADINGS: The descriptive headings used herein are
for convenience only. They shall have no effect whatsoever in determining the rights or
obligations of the parties.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above-written.
ony F. Davis
LAO
Emily O. Davis
COMMONWEALTH OF PENNSYLVANIA )
SS.:
COUNTY OF )
ozo1v
On this the day of , 2?6ff , before me, the undersigned
officer, personally appeared ANTHONY F. DAVIS, known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purpose therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
(SEAL)
Notary Public U /
My Commission Expires:
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
GERALDINE J. SCRBACIC, Notary Public
City of Harrisburg, Dauphin County 9
My Co^rnission Expires Nov. 20, 2010
COMMONWEALTH OF PENNSYLVANIA )
SS.:
COUNTY OF ?IYI )
On this the ? day of _?h' a N , 2000, before me, the undersigned
officer, personally appeared EMILY O. DAVIS, known to me (or satisfactorily proven)
to be the person whose name is subscribed to the within instrument, and acknowledged
that she executed the same for the purpose therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
My Commission Expires:
COMlk"EAL tVNSYLVANIA
NOTA .11JII?AL
ANN M. CA ry Public
City of Hasrisbui auphin County
My COMMI93:Cn eipires June 23, 2012
-eL ?-X' 6, Notary Public (SEAL)
10
EMILY O. DAVIS, JN THE COURT OF COMMON PLEAS OF
Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA
V. :CIVIL ACTION - LAW
:1N DIVORCE
ANTHONY F. DAVIS
Defendant :NO. 08-7238
AFFIDAVIT OF CONSENT -r QD
A complaint in divorce under Section 3301(c) of the Divorce. e was
1
.
filed on December 10, 2008.
2. The marriage of plaintiff and defendant is irretrievably broken and ninety
days have elapsed from the date of filing and service of the Complaint.
3. I consent to the entry of a final decree of divorce after service of notice of
intention to request entry of the decree.
I verify that the statements made in this affidavit are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §
4904 relating to unsworn falsification to authorities.
;0 C?0/0
Dated:
Emily O. Davis
EMILY O. DAVIS,
Plaintiff
V.
ANTHONY F. DAVIS
Defendant
:IN THE COURT OF COMMON PLEAS OF ,.a
:CUMBERLAND COUNTY
PENNSYLVA21A 2 -?
,
17
:CIVIL ACTION - LAW -gym
:IN DIVORCE =, - ? t7
-t, '7
:NO. 08-7238 t it
AFFIDAVIT OF CONSENT
1. A complaint in divorce under Section 3301(c) of the Divorce Code was
filed on December 10, 2008.
2. The marriage of plaintiff and defendant is irretrievably broken and ninety
days have elapsed from the date of filing and service of the Complaint.
3. I consent to the entry of a final decree of divorce after service of notice of
intention to request entry of the decree.
I verify that the statements made in this affidavit are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §
4904 relating to unsworn falsification to authorities.
Dated: /
EMILY O. DAVIS, :1N THE COURT OF COMMON PLEAS OF
Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA
V. :CIVIL ACTION - LAW
:1N DIVORCE
ANTHONY F. DAVIS,
Defendant :N0.08-7238 cf:
WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A Dd .OR&
DECREE UNDER SECTION 3301(C) OF THE DIVORCE CODK.
} rn
1. I consent to the entry of a final decree of divorce without notice.
2. I understand that I may lose rights concerning alimony, division of
property, lawyer's fees or expenses if I do not claim them before a divorce is granted.
3. I understand that I will not be divorced until a divorce decree is entered by
the Court and that a copy of the decree will be sent to me immediately after it is filed
with the prothonotary.
I verify that the statements made in this affidavit are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §
4904 relating to unsworn falsification to authorities.
Dated: to
l
Emily O. Davis
EMILY O. DAVIS, :IN THE COURT OF COMMON PLEAS OF
Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA
V. :CIVIL ACTION - LAW t..?
:IN DIVORCE n
cz)ANTHONY F. DAVIS, C-- -r
Defendant :NO. 08-7238 6 WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A ?biY0,?E
DECREE UNDER SECTION 3301(C) OF THE DIVORCE CO& - j
1. I consent to the entry of a final decree of divorce without notice.
2. I understand that I may lose rights concerning alimony, division of
property, lawyer's fees or expenses if I do not claim them before a divorce is granted.
3. I understand that I will not be divorced until a divorce decree is entered by
the Court and that a copy of the decree will be sent to me immediately after it is filed
with the prothonotary.
I verify that the statements made in this affidavit are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §
4904 relating to unsworn falsification to authorities.
Dated: r^ -`?
EMILY O. DAVIS, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION - LAW
N
IN DIVORCE' °
ANTHONY F. DAVIS, c1 `' -n
Defendant : NO. 08 - 7238 PRAECIPE TO TRANSMIT RECORD r . - o
TO THE PROTHONOTARY: < , `?"•' v
15
Please transmit the record, together with the following information, to the Court
for the entry of a Decree of Divorce.
1. Ground for divorce: irretrievable breakdown of the marriage under Section
3301(c) of the Divorce Code.
2. Date and manner of service of the Complaint: the complaint was served: by
Defendant personally accepting service of the same on December 12, 2008.
3. Date of execution of the affidavit of consent required by Section 3301(c) of the
Divorce Code: by plaintiff on January 20, 2010; by defendant on January 20, 2010.
4. Related claims pending: All economic claims raised were resolved by a
Property Settlement Agreement signed by the parties dated January 20, 2010, and the
same is being filed contemporaneously herewith.
5. (a) Date plaintiff s Waiver of Notice January 20, 2010, and it is being
filed contemporaneously herewith.
(b) Date defendant's Waiver of Notice January 20, 2010, and it is
being filed contemporaneously herewith.
DATED:
of Counsel
BECKLEY & MADDEN
212 North Third Street
P.O. Box 11998
Harrisburg, PA 17108
(717)233-7691
Re 11 spbmitted,
abeth
Attorney for Plaintif