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HomeMy WebLinkAbout09-2441Phelan 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 R. Shah-Jani, Esq., Id. No. 81760 .Jenne 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 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 202092 JPMC SPECIALTY MORTGAGE, LLC 10790 RANCHO BERNARDO RD SAN DIEGO, CA 92127 Plaintiff V. BILLY R. RUSSELL LIESA M. RUSSELL 217 SPRINGVIEW ROAD, CARLISLE, PA 17015-9465 Defendants ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM No. b9 - aqq 10,-MITerin CUMBERLAND COUNTY CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 202092 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 #: 202092 Plaintiff is JPMC SPECIALTY MORTGAGE, LLC 10790 RANCHO BERNARDO RD SAN DIEGO, CA 92127 2. The name(s) and last known address(es) of the Defendant(s) are: BILLY R. RUSSELL LIESA M. RUSSELL 217 SPRINGVIEW ROAD, CARLISLE, PA 17015-9465 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 03/13/2004 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to AMERIQUEST MORTGAGE COMPANY which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No. 1861, Page 1917. By Assignment of Mortgage recorded 01/08/2009 the mortgage was assigned to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. A DELAWARE CORPORATION, ITS SUCCESSORS OR ASSIGNS, AS NOMINEE FOR JPMORGAN CHASE BANK, NA which Assignment is recorded in Assignment of Mortgage Instrument No. 200900554. The PLAINTIFF is now the legal owner of the mortgage and is in the process of formalizing an assignment of same. The mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 4. The premises subject to said mortgage is described as attached. 5. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 07/01/2008 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 File #: 202092 by written notice sent to Mortgagor, the entire principal balance and all interest due 6 7 8. thereon are collectible forthwith. The following amounts are due on the mortgage: Principal Balance $115,716.01 Interest $9,480.68 06/01/2008 through 04/15/2009 (Per Diem $29.72) Attorney's Fees $1,300.00 Cumulative Late Charges $1,638.63 03/13/2004 to 04/15/2009 Non Sufficient Funds Charge $20.00 Cost of Suit and Title Search 750.00 Subtotal $128,905.32 Escrow Credit $0.00 Deficit $4,403.66 Subtotal $4,403.66 TOTAL $133,308.98 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 Sheriff s 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 File #: 202092 discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. 9. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $133,308.98, together with interest from 04/15/2009 at the rate of $29.72 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: La ce T. Phelan, Elsquire Francis S. Hallinan, Esquire Daniel G. Schmieg, Esquire Michele M. Bradford, Esquire Judith T. Romano, Esquire Sheetal R. Shah-Jani, Esquire Jenine R. Davey, Esquire J Lauren R. Tabas, Esquire Vivek Srivastava, Esquire Jay B. Jones, Esquire Peter J. Mulcahy, Esquire Andrew L. Spivack, Esquire Jaime McGuinness, Esquire Chrisovalante P. Fliakos, Esquire Joshua I. Goldman, Esquire Attorneys for Plaintiff File #: 202092 LEGAL DESCRIPTION ALL THAT CERTAIN TRACT OF LAND WITH THE IMPROVEMENTS THEREON ERECTED SITUATE IN THE TOWNSHIP OF West PENNSBORO, COUNTY OF CUMBERLAND AND STATE OF PENNSYLVANIA, BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE CENTER OF THE PUBLIC Road LEADING FROM MOUNT ROCK TO PLAINFIELD; THENCE BY THE CENTER OF THE ABOVE PUBLIC Road, North 21 DEGREES East, A DISTANCE OF 301 FEET TO A POINT; THENCE BY LANDS NOW OR FORMERLY OF W. CLARK CRAIN, South 35 DEGREES 45 MINUTES East, A DISTANCE OF 315.8 FEET TO A POST; THENCE BY LANDS NOW OR FORMERLY OF WILLIAM S. MCKEEHAN, South 86 DEGREES West, A DISTANCE OF 287 FEET TO A POINT IN THE CENTER OF THE PUBLIC Road ABOVE DESCRIBED, AND PLACE OF BEGINNING CONTAINING 1.09 ACRES, MORE OR LESS, AND BEING IMPROVED WITH A TWO STORY BRICK HOUSE, TWO CAR GARAGE AND OTHER IMPROVEMENTS, KNOWN AND NUMBERED AS 217 SPRINGVIEW Road BEING THE SAME PREMISES WHICH SANDRA L. ERICKSON, N/K/A SANDRA L. MCKEE, MARRIED PERSON, BY DEED DATED September 15, 1993 AND RECORDED IN THE OFFICE OF THE RECORDER OF DEEDS IN AND FOR CUMBERLAND COUNTY IN File #: 202092 DEED BOOK 36-N, PAGE 711 GRANTED AND CONVEYED TO SANDRA L MCKEE, MARRIED PERSON, ONE OF THE GRANTORS HEREIN SOURCE OF TITLE: BOOK 109 PAGE 801 [RECORDED: 08/04/1994] PARCEL: 46-08-0585-018 PROPERTY BEING; 217 SPRINGVIEW ROAD File #: 202092 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. Furthermore, counsel intends to substitute a verification from Plaintiff upon receipt. The undersigned understands that this statement is made subject to the penalties of 18 Pa.C.S. Sec. 4904 relating to unworn falsifications to authorities. DATE: 4 o 81071 mey for Plaintiff File #: 202092 o RLEf)--O,,-- ;l .1: C7 THE 20013 APR 17 PM 1: 52 it £7 7 S. 5o P a ATTY C' t'* q'9 tASA aa3403 Sheriffs Office of Cumberland County R Thomas Kline 04111r ©t clu"b?r h Edward L Schorpp Sheri Solicitor Ronny R Anderson Jody S Smith Chief Deputy OFPCE O` T NE SHERIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 04/24/2009 05:05 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on April 24, 2009 at 1705 hours, he served a true copy of the within Complaint in Mortgage Foreclosure, upon the within named defendant, to wit: Billy R. Russell, by making known unto himself personally, defendant at 217 Springview Road Carlisle, Cumberland County, Pennsylvania 17015 its contents and at the same time handing to him personally the said true and correct copy of the same. 04/24/2009 05:05 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on April 24, 2009 at 1705 hours, he served a true copy of the within Complaint in Mortgage Foreclosure, upon the within named defendant, to wit: Liesa M. Russell, by making known unto Billy R. Russell, husband of defendant at 217 Springview Drive Carlisle, Cumberland County, Pennsylvania 17015 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $50.30 April 27, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF 2009-2441 JPMC Specialty Mortgage, LLC VS Billy R. Russell ByDeputy Sheriff n .? r-I ?' iii 7 1.? .+ 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 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 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 JPMC SPECIALTY MORTGAGE, LLC Plaintiff VS. BILLY R. RUSSELL LIESA M. RUSSELL Defendant(s) ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DIVISION : NO. 2009-2441 : CUMBERLAND COUNTY PRAECIPE TO SUBSTITUTE VERIFICATION TO CIVIL ACTION COMPLAINT IN MORTGAGE FORECLOSURE PHS #: 202092 r TO THE PROTHONOTARY: Kindly substitute the attached verification for the verification originally filed with the complaint in the instant matter. Phelan Hallinan & Schmieg, LLP Attorney for Plaintiff By: Lawre e T. Phelan, E quire Francis S. Hallinan, Esquire Daniel G. Schmieg, Esquire Michele M. Bradford, Esquire Judith T. Romano, Esquire Sheetal R. Shah-Jani, Esquire Jenine R. Davey, Esquire Lauren R. Tabas, Esquire Vivek Srivastava, Esquire Jay B. Jones, Esquire Peter J. Mulcahy, Esquire Andrew L. Spivack, Esquire Jaime McGuinness, Esquire Chrisovalante P. Fliakos, Esquire Joshua I. Goldman, Esquire Date: 5-20-09 PHS #: 202092 VERIFICATION Whitney K. Cook hereby states that he/she is Assistant Secretary of CHASE HOME FINANCE, servicing agent for Plaintiff, JPMC SPECIALTY MORTGAGE, LLC, in this matter, that he/she is authorized to take this Verification, and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are true and correct to the best of his/her knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. Name: WhtneV K. DATE: o)M Title: v Assistant Secretary Company: CHASE HOME FINANCE Loan: 73164840 File #: 202092 Russell tltxl vs ??? WIWWT JPMC SPECIALTY MORTGAGE, LLC 10790 RANCHO BERNARDO RD SAN DIEGO, CA 92127 Plaintiff, V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-2441 Civil Term BILLY R. RUSSELL LIESA M. RUSSELL 217 SPRINGVIEW ROAD CARLISLE, PA 17015-9465 Defendant CIVIL ACTION NOTICE TO PLEAD TO: JPMC Specialty Mortgage, LLC c/o Jenine R. Davey, Esquire One Penn Center Plaza Philadelphia, PA 19103 You are hereby notified to file a written response to the enclosed within twenty (20) days from service hereof or a judgment may be entered against you. Date: /Zd ? Respectfully submitted, ounsel f r e aint' Margaret M. Stuski, Esquire PA Supreme Court ID 42478 61 West Louther Street Carlisle, Pennsylvania 17013 STEPHANIE E. CHERTOK, ESQUIRE PA Supreme Court ID 52651 61 West Louther Street Carlisle, Pa 17013 (717)249-1177 Attorneys for Plaintiff MARGARET M. STUSKI, ESQUIRE PA Supreme Court ID 42478 61 West Louther Street Carlisle, PA 17013 (717)249-1177 JPMC SPECIALTY MORTGAGE, LLC 10790 RANCHO BERNARDO RD SAN DIEGO, CA 92127 Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-2441 Civil Term V. BILLY R. RUSSELL LIESA M. RUSSELL 217 SPRINGVIEW ROAD CARLISLE, PA 17015-9465 Defendant CIVIL ACTION ORDER AND NOW, this day of 2009, upon consideration of Preliminary Objections of Defendants, Billy R. Russell and Liesa M. Russell, to Plaintiffs Complaint in Mortgage Foreclosure and any Answer thereto filed by Plaintiff, it is hereby Ordered by the Court that Preliminary Objections are SUSTAINED. BY THE COURT, J. STEPHANIE E. CHERTOK, ESQUIRE PA Supreme Court ID 52651 61 West Louther Street Carlisle, Pa 17013 (717)249-1177 Attorneys for Plaintiff JPMC SPECIALTY MORTGAGE, LLC 10790 RANCHO BERNARDO RD SAN DIEGO, CA 92127 Plaintiff, MARGARET M. STUSKI, ESQUIRE PA Supreme Court ID 42478 61 West Louther Street Carlisle, PA 17013 (717)249-1177 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-2441 Civil Term V. BILLY R. RUSSELL LIESA M. RUSSELL 217 SPRINGVIEW ROAD CARLISLE, PA 17015-9465 Defendant CIVIL ACTION AND NOW, come Defendants, Billy R. Russell and Liesa M. Russell, by and through their Attorneys, Margaret M. Stuski and Stephanie E. Chertok, and preliminarily object to Plaintiffs Complaint in Mortgage Foreclosure, and aver the following in support thereof. 1. Plaintiff filed a Complaint in Mortgage Foreclosure on April 16, 2009 in Cumberland County, PA.. 2. Plaintiff is JPMC Specialty Mortgage, LLC, whose primary place of business is 10790 Rancho Bernardo, San Diego, 92127 3. Defendants are Billy R. Russell and Liesa M. Russell, husband and wife, whose primary residence is 217 Springview Road, Carlisle, PA 17015. PLAINTIFF DOES NOT HAVE STANDING TO BRING MORTGAGE FORECLOSURE PROCEEDINGS 4. JPMC Specialty Mortgage, LLC lacks the capacity to sue as the assignment of the mortgage in question was recorded on April 27, 2009, after the date on which the Complaint in Mortgage Foreclosure was filed, April 16, 2009. 5. JPMC Specialty Mortgage, LLC brought the present action prior to having the legal authority and interest to be the party. 6. JPMC Specialty Mortgage, LLC did not have standing at the time they brought the present action. 7. Paragraph 3 of Plaintiffs Complaint in Mortgage Foreclosure even states that at the time of filing Plaintiff does not have the assignment of the mortgage but rather "is in the process of formalizing" it. 8. Averments 4, 5, 6, and 7 form the basis of a proper preliminary objection under PA R.C.P. § 1028(5), lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action. PLAINTIFF DID NOT GIVE DEFENDANTS PROPER NOTICE OF FORECLOSURE 9. Notices to Foreclose were not attached to the Complaint and were not of public record. 10. Notices were from Citi Residential Lending, Inc. and not JPMC Specialty Mortgage, LLC, the plaintiff. 11. In Mortgage Foreclosure proceedings, Notices to Foreclose and legal process must be sent by the party bringing the proceedings. 12. Averments 9, 10, and 11 form the basis of a proper preliminary objection under PA R.C.P. § 1028(2), failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter. WHEREFORE, the Defendants, Billy R. Russell and Liesa M. Russell request that Plaintiffs Complaint in Mortgage Foreclosure be stricken and dismissed with prejudice. In the alternative, Plaintiffs request any other relief as is deemed appropriate by the Court under these circumstances. unsel or the Defen t Margaret M. Stuski, Esquire PA Supreme Court ID 42478 61 West Louther Street Carlisle, Pennsylvania 17013 STEPHANIE E. CHERTOK, ESQUIRE PA Supreme Court ID 52651 61 West Louther Street Carlisle, Pa 17013 (717)249-1177 Attorneys for Plaintiff JPMC SPECIALTY MORTGAGE, LLC 10790 RANCHO BERNARDO RD SAN DIEGO, CA 92127 Plaintiff, MARGARET M. STUSKI, ESQUIRE PA Supreme Court ID 42478 61 West Louther Street Carlisle, PA 17013 (717)249-1177 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-2441 Civil Term V. BILLY R. RUSSELL LIESA M. RUSSELL 217 SPRINGVIEW ROAD CARLISLE, PA 17015-9465 Defendant CIVIL ACTION CERTIFICATE OF SERVICE I, Margaret M. Stuski, Esquire, counsel for Billy R. Russell and Liesa M. Russell, hereby certify that a copy of the Preliminary Objections, was served upon Plaintiffs Attorney at the below listed address, this a2 day of , 2009 by first-class mail, postage prepaid, and certified mail, return receipt requested, pursuant to Pa. C. R. P. 1930.4(c): Phelan Hallinan & Schmieg, LLP Jenine R. Davey, Esquire Attorney for Plaintiff One Penn Center Plaza Philadelphia, PA 19103 Counsel fo the Defen t Margaret M. Stuski, Esquire PA Supreme Court ID 42478 61 West Louther Street Carlisle, Pennsylvania 17013 2209 W tiY? 22 IFi i 1: 4 V r • `.t Y % PHELAN HALLINAN & SCHMIEG, LLP BY: JENINE R. DAVEY, ESQUIRE Identification No. 87077 ATTORNEY FOR PLAINTIFF One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 JPMC Specialty Mortgage, LLC Court of Common Pleas 10790 Rancho Bernardo Road Civil Division San Diego, CA 92127 Cumberland County Plaintiff No.: 09-2441-Civil Term vs. Billy R. Russell Liesa M. Russell 217 Springview Road Carlisle, PA 17015-9465 Defendants PRAECIPE TO THE PROTHONOTARY: Please mark the above referenced case Discontinued and Ended without prejudice. Please mark the above referenced case Settled, Discontinued and Ended. PHS: 202092 Please mark Judgments satisfied and the Action settled, discontinued and ended. Please Vacate the judgment entered and mark the action discontinued and ended without prejudice. X Please withdraw the complaint and mark the action discontinued and ended without prejudice. Date: b tDI nine R. Davey, Esquire Attorney for Plaintiff PHS: 202092 Yew' 2. 1 ? 1 Y?, 2 `