The URL can be used to link to this page

Home My WebLink About09-3121Phelan 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 ATTORNEY FOR PLAINTIFF Philadelphia, PA 19103 215-563-7000 205780 FIRST HORIZON HOME LOAN, A DIVISION OF COURT OF COMMON PLEAS FIRST TENNESSEE BANK NATIONAL ASSOCIATION CIVIL DIVISION 4000 HORIZON WAY IRVING, TX 75063 TERM Plaintiff NO. 3 C j crr- v. CUMBERLAND COUNTY JOHN H. KYLE 49 BAYBERRY DRIVE MECHANICSBURG, PA 17055 Defendant CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 205780 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 gel % 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 #: 205780 Plaintiff is FIRST HORIZON HOME LOAN, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION 4000 HORIZON WAY IRVING, TX 75063 2. The name(s) and last known address(es) of the Defendant(s) are: JOHN H. KYLE 49 BAYBERRY DRIVE MECHANICSBURG, PA 17055 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 12/18/2002 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. 1788, Page 1298. 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. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 03/01/2008 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 #: 205780 6. The following amounts are due on the mortgage: Principal Balance $255,400.07 Interest $25,372.90 02/01/2008 through 05/14/2009 (Per Diem $54.10) Attorney's Fees $1,300.00 Cumulative Late Charges $191.04 12/18/2002 to 05/14/2009 Non Sufficient Funds Charge $20.00 Mortgage Insurance Premium / $1,456.06 Private Mortgage Insurance Cost of Suit and Title Search 750.00 Subtotal $284,490.07 Escrow Credit $0.00 Deficit $5,724.98 Subtotal $5,724.98 TOTAL $290,215.05 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. 8. Plaintiff is not seeking a judgment of personal liability (or an in personam judgment) against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. File #: 205780 t 9. The mortgage premises are vacant and abandoned. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $290,215.05, together with interest from 05/14/2009 at the rate of $54.10 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. PHELAN HALLINAN & SCHMIEG, LLP By: Lawrence T. Phelan, Esquire ,-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 Attorneys for Plaintiff File #: 205780 LEGAL DESCRIPTION ALL THAT CERTAIN house and lot of ground situate in the Township of Silver Spring, County of Cumberland and State of Pennsylvania, bounded and described as follows: BEGINNING at a point by the intersection of the center line of L.T. 21018, known as Texaco Road, with the center line of T-566, known as Konhaus Road, as shown on the hereinafter mentioned Plan of Lots; thence along the center line of T-566. South 02 degrees 34 minuted 40 seconds East 260 feet to a point; thence by the dividing line between Lots Nos. 15 and 16 on said Plan, South 87 degrees 42 minutes 54 seconds West 222.98 feet to a point; thence by the dividing line between Lots Nos. 16 and 17, North 07 degrees 45 minutes East, 268 feet to a point in the center line of L.R. 21018; thence by the center line of L.R. 21018, North 88 degrees 59 minutes 30 seconds East 175 feet to a point, the place of BEGINNING. HAVING THEREON erected a single family, two story dwelling house known and numbered 195 Konhaus Road, Mechanicsburg, PA. BEING Lot No. 16 on the Plan of Lots of Clepper Farms, Inc. which Plan is recorded in the Cumberland County Recorder's Office in Plan Book 21, Page 68. SUBJECT to the setback line and highway right-of-way easements as shown on said Plan and to restrictions and reservations of record. File #: 205780 BEING the same premises which Peggy A. Simpson, widow, by her Deed dated September 24, 2002 and recorded in the Office of the Recorder of Deeds in and for Cumberland County in Deed Book X, Volume 30, Page 504, granted and conveyed unto Harry J. Kruger and Irene S. Kruger, his wife, Grantors herein. PARCEL NO. 38-22-0135-008 PROPERTY BEING: 195 KONHAUS ROAD File #: 205780 VERIFICATION The undersigned attorney hereby states 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 unsworn falsifications to authorities. Attorney for Plaintiff DATE: mod/ File #: 205780 6) FILE) THU, J 2009 Mlly 18 A l(' 5 2 V ,! 7 56 ciG ? 8'? "7 d ?l Sheriffs Office of Cumberland County R Thomas Kline Sheri 33of ?anrb?#D 4-1 OFF$CE CF rHE SKERIFF Edward L Schorpp Solicitor Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 05/28/2009 08:42 PM - Jody Smith, Sergeant, who being duly sworn according to law, states that on May 28, 2009 at 2042 hours$he served a true copy of the within Complaint in Mortgage Foreclosure, upon the within named defendant, to wit: John H. Kyle, by making known unto himself personally, defendant at 811 W. Trindle Road Mechanicsburg Cumberland County, Pennsylvania 17050 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $37.00 May 29, 2009 SO ANSWERS, r00x0a00eV~< jo&? R THOMAS KLINE, SHERIFF Deputy S 2009-3121 First Horizon Hare Loans V John H. Kyle `-' tT1 I r rT" tV rti .? 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 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 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 FIRST HORIZON HOME LOAN CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION vs. JOHN H. KYLE Attorney for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION No. 09-3121-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 JOHN H. KYLE, 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 $290,215.05 Interest - 05/15/2009 to 07/02/2009 $2,650.90 TOTAL $292,865.95 I hereby certify that (1) the Defendant's last known address is 811 W. TRINDLE ROAD, MECHANICSBURG. PA 17050, and (2) that notice has been given in accordance with Rule 237.1, copy attached. ,J _ /j _ F cis Hall' an, Esquire aniel G. ieg, 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 Courtenay R. Dunn, Esquire Andrew C. Bramblett, Esquire Attorney for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: j/~~DD~ PHS # 205780 PROTHONOTARY FIRST HORIZON HOME LOAN CORPORATION, COURT OF COMMON PLEAS A DIVISION OF FIRST TENNESSEE BANK CNIL DNISON NATIONAL ASSOCIATION NO. 09-3121-CIVIL TERM Plaintiff ~• CUMBERLAND COUNT JOHN H. KYLE Defendants ~) 0 p TO: JOHN H. KYLE 811 W. TRINDLE ROAD MECHANICSBURG, PA 17050 DATE OF NOTICE: June 18, 2009 THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT THE INDEBTEDNESS REFERRED TO HEREIN, AND ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE.IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY AS ENFORCEMENT OF LIEN AGAINST PROPERTY. YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPERANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH TIDE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN 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 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. PHS # 205780 Office of the Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6195 By: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 La nce T. Phelan, E ., Id. No. 32227 Fran ~s S. Hallinan, Es ., Id. No. 62695 Daniel G. Schmieg, Es ., 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 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 Phelan Hallinan &Schmieg, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 PHS # 205780 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 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 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Attorney for Plaintiff Philadelphia, PA 19103 215-563-7000 FIRST HORIZON HOME LOAN CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION vs. JOHN H. KYLE No. 09-3121-CIVIL TERM VERIFICATION OF NON-MILITARY SERVICE The undersigned attorney hereby verifies that he/she is attorney for the Plaintiff in the above-captioned matter, and that on information and belief, he/she 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 JOHN H. KYLE is over 18 years of age and resides at 811 W. TRINDLE ROAD, MECHANICSBURG, PA 17050. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. Fr is S. llin squire D iel 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 Courtenay R. Dunn, Esquire Andrew C. Bramblett, Esquire Attorney for Plaintiff Z~~9,~JL '$ ~~~ ll~ J7 >._> ;.; ~ ~~ a ~~ ~~ ~v ~s ~` ~ ~>7/~ (Rule of Civil Procedure No. 236) -Revised FIRST HORIZON HOME LOAN CUMBERLAND COUNTY CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL COURT OF COMMON PLEAS ASSOCIATION vs. JOHN H. KYLE CIVIL DIVISION No. 09-3121-CIVIL TERM 811 W. TRINDLE ROAD MECHANICSBURG, PA 17050 Notice is given that a Judgment in the above captioned matter has been entered against you on ~ oZ By: If you have any questions concerning thi; Y 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 Courtenay R. Dunn, Esquire Andrew C. Bramblett, 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 YOUHAVE PREVIOUSLYRECEIVED ADISCHARGE INBANKRUPTCY, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BEANATTEMPT TO COLLECTA DEBT, BUT ONLYENFORCEMENT OFA LIENAGAINST PROPERTY. ** SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson ~ILE~-"~=, r"iw sheriff t~F TNc P; :~ ~ r ~i~0 iARY r~' w'ui~;~; " 9~ ~~ ,, r'~`~ Jody S Smith ~' ~ ZQ,~ K~~ ,.' P~ 2; ~ j Chief Deputy - Edward L Schorpp Solicitor cur~~~~~;i,~~ :;:: ~~~~~NZ~r -: ~ PEN~S~%V~~~~ First Horizon Home Loans vs. John H. Kyle Case Number 2009-3121 SHERIFF'S RETURN OF SERVICE 09/28/2009 09:22 PM -Noah Cline, Deputy Sheriff, who being duly sworn according to law, states that on 09/28/09 at 2122 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 John H. Kyle, located at, 195 Konhaus Road, Mechanicsburg, Cumberland County, Pennsylvania according to law. 10/21/2009 09:33 AM -Timothy R. Black, Deputy Sheriff, who being duly sworn according to law, states that on 10/21/09 at 0935 hours, he served a true copy of the within Real Estate Writ, Notice and Description, in the above entitled action, upon the within named defendant, to wit: John H. Kyle, by making known unto,John H. Kyle, personally, at, 195 Konhaus Road, Mechanicsburg, Cumberland County, Pennsylvania its contents and at the same time handing to him personally the said true and correct copy of the same. 12/01/2009 Property sale postponed to 2/3/2010. 02/03/2010 Property sale postponed to 4/7/2010. 02/26/2010 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states this writ is returned STAYED per letter of instruction from Attorney Hallinan, dated 2/26/10 SHERIFF COST: $689.09 SO ANSWERS, March 01, 2010 RON R ANDERSON, SHERIFF L~" ~ a v ,~ ,~~ ~~ ~ ~' ~~~y FHtST HORIZON HOME LOAN, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION ' v. JOHN H. KYLE Plaintiff, Defendant(s). CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DIVISION N0.09-3121-CIVIL TERM AFFIDAVIT PURSUANT TO RULE 3129.1 FIRST HORIZON HOME LOAN, A DIVISION OF FIRST TENNESSEE BANK_NATIONAL ASSOCIATION, Plaintiff in the above action, by the undersigned attorney, sets forth as of the date the Praecipe for the Writ of Execution was filed the following information concerning the real property located at 195 KONHAUS ROAD, MECHANICSBURC, PA 17050-3127 . 1. Name and address of Owner(s) or reputed Owner(s): Name Address (if address cannot be reasonably ascertained, please indicate) JOHN H. KYLE 49 BAYBERRY DRIVE MECHANICSBURG, PA 17055 811 W. TRINDLE ROAD MECHANICSBURG, PA 17050 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 BUREAU OF COMPLIANCE Address (if address cannot be reasonably ascertained, please indicate) DEPARTMENT 280946 HARRISBURG, PA 17055-3187 4. Name and address of last recorded holder of every mortgage of record: Name Address (if address cannot be reasonably ascertained, please indicate) None 5. Name and address of every other person who has any record lien on the property: Name 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 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 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 Address (if address cannot be reasonably ascertained, please indicate) 195 KONHAUS ROAD MECHANICSBURG, PA 17050-3127 13 North Hanover Street Carlisle, PA 17013 PO Box 2675 Harrisburg, PA 17105 6`h Floor, Strawberry Sq., Dept. 28061 Harrisburg, PA 17128 13`h Floor, Suite 1300 1001 Liberty Avenue Pittsburgh, PA 15222 P.O. Box 8486 Willow Oak Building Harrisburg, PA 17105 THERESE M. KYLE C/O CUNNINGHAM & CHERNICOFF, P.C. JORDAN D. CUNNIGHAM 2320 NORTH 2ND STREET HARRISBURG, PA 17110 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 to uth ities. August 24, 2009 DATE ^ Lawrence T. Phelan, Esq., d. No 2227 ^ Francis S. Hallinan, Esq., Id. No. 62695 ^ Daniel G. Schmieg, Esq., Id. No. 62205 ^ Michele M. Bradford, Esq., Id. No. 69849 ^ Ju~th T. Romano, Esq., Id. No. 58745 Ca'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 ^ Courtenay R. Dunn, Esq., Id. No. 206779 ^ Andrew C. Bramblett, Esq., Id. No. 208375 Attorney for Plaintiff One Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 (215)563-7000 FIRST HORIZON HOME LOAN, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION Plaintiff, v. JOHN H. KYLE Defendant(s). TO: JOHN H. KYLE 49 BAYBERRY DRIVE MECHANICSBURG, PA 17055 CUMBERLAND COUNTY No. 09-3121-CIVIL TERM August 24, 2009 JOHN H. KYLE 811 W. TRINDLE ROAD MECHANICSBURG, PA 17050 * *THIS FIRMIS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOUHAVE PREVIOUSLYRECEIVED ADISCHARGE IN BANKR UPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONL Y ENFORCEMENT OF A LIEN AGAINST PROPERTY. Your house (real estate) at 195 KONHAUS ROAD, MECHANICSBURG, PA 17050-3127, is scheduled to be sold at the Sheriffs Sale on DECEMBER 9, 2009 at 10:00 a.m. in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013, to enforce the court judgment of $292,865.95 obtained by FIRST HORIZON HOME LOAN, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION (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 Sheriff's 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 house and lot of ground situate in the Township of Silver Spring, County of Cumberland and State of Pennsylvania, bounded and described as follows: BEGINNING at a point by the intersection of the center line of L.T. 21018, known as Texaco Road, with the center line of T-566, known as Konhaus Road, as shown on the hereinafter mentioned Plan of Lots; thence along the center line of T-566. South 02 degrees 34 minuted 40 seconds East 260 feet to a point; thence by the dividing line between Lots Nos. 15 and 16 on said Plan, South 87 degrees 42 minutes 54 seconds West 222.98 feet to a point; thence by the dividing line between Lots Nos. 16 and 17, North 07 degrees 45 minutes East, 268 feet to a point in the center line of L.R. 21018; thence by the center line of L.R. 21018, North 88 degrees 59 minutes 30 seconds East 175 feet to a point, the place of BEGINNING. HAVING THEREON erected a single family, two story dwelling house known and numbered 195 Konhaus Road, Mechanicsburg, PA. BEING Lot No. 16 on the Plan of Lots of Clepper Farms, Inc. which Plan is recorded in the Cumberland County Recorder's Office in Plan Book 21, Page 68. SUBJECT to the setback line and highway right-of--way easements as shown on said Plan and to restrictions and reservations of record. BEING THE SAME PREMISES VESTED IN John H. Kyle, single, individual, by Deed from Harry J. Kruger and Irene S. Kruger, h/w, dated 12/18/2002, recorded 12/20/2002 in Book 255, Page 224. PREMISES BEING: 195 KONHAUS ROAD, MECHANICSBURG, PA 17050-3127 PARCEL NO. 38-22-0135-008 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) NO 09-3121 Civil COUNTY OF CUMBERLAND) CIVIL ACTION -LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due FIRST HORIZON HOME LOAN, a Division of FIRST TENNESSEE BANK NATIONAL ASSOCIATION, Plaintiff (s) From JOHN H. KYLE (I) 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 $292,865.95 L.L. $.50 Interest from 7/3/09 - 12/9/09 (per diem - $48.14) -- $7,702.40 Atty's Comm % Due Prothy $2.00 Atty Paid $156.00 Other Costs Plaintiff Paid Date: 8/25/09 (Seal) 7 Cu is R. Lo ro ho of By: Deputy REQUESTING PARTY: Name: SHEETAL R. SHAH-JANI, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, LLP ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 Attorney for: PLAINTIFF Telephone:215-563-7000 Supreme Court ID No. 208375 Real Estate Sale # On September 15, 2009 the Sheriff levied upon the defendant's interest in the real property situated in Silver Spring Township, Cumberland County, PA Knov~ and numbered as 195 Konhaus Road, Mechanicsburg, more fully described on Exhibit "A" filed with this writ and by this reference incorporated herein. Dater September 15, 2009 By: t Real Estate Coordinator OF THE PROT~O~iD~"ARY iGi00CT IS ~~~ il~ Q3 CUMBERl.ARO Cf3UNTY PENt~5YL~~A;~~A 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 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 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza. Philadelphia, PA 19103 215-563-7000 FIRST HORIZON HOME LOAN CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION Plaintiff v. JOHN H. KYLE Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas . Civil Division CUMBERLAND County . No.: 09-3121-CIVIL TERM PLAINTIFF'S MOTION TO REASSESS DAMAGES 205780 Plaintiff, by its Attorneys, Phelan Hallinan & Schmieg, LLP, moves the Court to direct the Prothonotary to amend the judgment in this matter, and in support thereof avers the following: Plaintiff commenced this foreclosure action by filing a Complaint on May 18, 2009, a true and correct copy of which is attached hereto, made part hereof, and marked as Exhibit "A". 2. Judgment was entered on July 8, 2009 in the amount of $292,865.95. 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 Sheriff s Sale on December 8, 2010. 5. Additional sums have been incurred or expended on Defendant's behalf since the Complaint was filed and Defendant has been given credit for any payments that have been made since the judgment. The amount of damages should now read as follows: Principal Balance Interest Through December 8, 2010 Per Diem $53.35 Late Charges Legal fees Cost of Suit and Title Sheriffs Sale Costs Property Inspections/ Property Preservation Appraisal/Brokers Price Opinion Mortgage Insurance Premium / Private Mortgage Insurance Non Sufficient Funds Charge Suspense/Misc. Credits Escrow Deficit $255,400.07 $55,541.64 $191.04 $1,300.00 $869.50 $689.09 $52.00 $90.00 $0.00 $0.00 ($0.00) $16,046.78 205780 TOTAL $330,180.12 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 Defendant. 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 October 7, 2010 and requested the Defendant's Concurrence. Plaintiff did not receive any response from the Defendant. 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. 205780 WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. DATE: ~~ Its ~ C~ By: Phelan Hallinan & Schmieg, LLP [~,awrence 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 ~]' Courtenay R. Dunn, Esq., Id. No. 206779 ^ Andrew C. Bramblett, Esq., Id. No. 208375 ATTORNEY FOR PLAINTIFF 205780 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 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 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 FIRST HORIZON HOME LOAN CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION Plaintiff v. JOHN H. KYLE Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No.: 09-3121-CIVIL TERM MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REASSESS DAMAGES 205780 I. BACKGROUND OF CASE 30HN H. KYLE 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. Plaintiff s Note was secured by a Mortgage on the Property located at 195 KONHAUS ROAD„ MECHANICSBURG, PA 17050-3127. The Mortgage indicates that in the event of 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, Defendant 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 Sheriff s 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 Defendant 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 Mort a e Co oration of the Southwest v. Good, 537 A.2d 22, 24 (Pa.Super. 1988). 'The 205780 Pennsylvania Superior Court has repeatedly cited the right of a foreclosing creditor to amend its judgment prior to the Sheriff s sale. Nationsbanc Mortgage Corp. v. Grillo, 827 A.2d 489 (Pa.Super. 2003). Morgan Guaranty Trust Co. of_N.Y. v. Mowl, 70S A.2d 923 (Pa. Super. 1998). Union National Bank of Pittsbur v. Ciongoli, 407 Pa.Super. 171, S9S A.2d 179 (1991). The Supreme Court of Pennsylvania recognized in Landau v. Western Pa. Nat. Bank, 44S Pa. 117, 282 A.2d 33S (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. S4S, 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 Compan~v. Burns, 414 Pa. 495, 200 A.2d 33S (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 Defendant 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. 2S7 Pa. Super. 1 S7, 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 Defendant's failure to tender payments during the foreclosure proceeding and the advances made by the mortgage company. The Mortgage plainly requires the mortgagor to tender to the mortgagee monthly payments of principal and interest until the Promissory Note accompanying the Mortgage is paid in full. The mortgagor is 205780 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 mortgagor has 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). Sisal Consumer Discount CompanX 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 dollaz amount in the in rem judgment is for bidding at the Sheriff s Sale. In the event that a third party real estate speculator were to bid on the mortgaged property at the Sheriffs Sale and become the successful purchaser, Plaintiff would receive the amount of the in rem judgment from the Sheriff. IV. INTEREST The Mortgage clearly requires that the Defendant 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 chazged 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. 205780 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, Plaintiff s 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 Shoppin Center, 68 D&C 2d ?51, 755 (1974). In Federal Land Bank of Baltimore v. Fetner, the Superior Court held that an attorney's fee often 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 often percent included in the judgment in mortgage foreclosure action was reasonable. Citicorp v. Morrisville Hampton Realtv, 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. 205780 VII. COST OF SUIT AND TITLE Pursuant to the terms of the mortgage, Plaintiff is entitled to recover all expenses incurred in the foreclosure action. The amount claimed for the costs of suit and title are the expenses Plaintiff paid to date as a result of the mortgage default. The title report is necessary to determine the record owners of the property, as Pa.R.C.P. 1144 requires all record owners to be named as Defendants in the foreclosure action. It is also necessary to determine whether there are any prior liens to be cleared, so that the Sheriff s sale purchaser acquires clear title to the property. It is necessary to determine if there are IRS liens on the property, whether the Defendants are divorced (which could affect service of the complaint), and numerous other legal issues. The title bringdown is necessary to identify any new liens on the property or new owners between the time of filing and complaint and the writ date. The Freedom of Information Act inquiries and the investigation into Defendants' whereabouts are necessary to effectively attempt personal service of the complaint and notice of sale on the Defendant. The notice of sale and Rule 3129 notice are required by Pa.R.C.P.3129.1 and 3129.2 to notify all lienholders, owners, and interested persons of the Sheriff's sale date, as their interests will be divested by the Sheriff's sale. Accordingly, the modest sums Plaintiff has incurred for the costs of suit and title were necessary pursuant to Pennsylvania law. The amounts were reasonable and actually incurred. The mortgage and Pennsylvania law permit Plaintiff to recover these sums through its foreclosure action. As the foreclosure action is in rem only, Plaintiff recovers its judgment from 205780 the sale of the property, not out of the Defendant's pockets. Plaintiff should recover the costs of suit and title in their entirety, which will not cause harm to the Defendants. VIII. 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. 205780 WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. Phelan Hallinan & Schmieg, LLP DATE: 1 e(l~t ~f O By: awrence 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 ~Courtenay R. Dunn, Esq., Id. No. 206779 ^ Andrew C. Bramblett, Esq., Id. No. 208375 Attorney for Plaintiff 205780 Exhibit "A" 205780 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. 8665? 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 2os7so FIRST HORIZON HOME LOAN, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION 4000 HORIZON WAY IRVING, TX 75063 Plaintiff v. E~ ~~~~ RN t~c~asER~ ~T,~ K' b _'-~ ~ _ c~ x: ~C'. p jQ ~ ~ o ? ~- .~ ~ rv ..~ ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM CUMBERLAND COUNTY JOHN H. KYLE 49 BAYBERRY DRIVE MECHANICSBURG, PA 17055 hgr@by C81f~/~ Wes' +~ ~~}=- ~ tt'U~ and Defendant COlrf@GI Cvp~ O# ~ CIVIL ACTION -LAW ai ~~ of t'ef~Old COMPLAINT IN MORTGAGE FORECLOSURE File N: 20i78D 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 da 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 170 i 3 (717} 249-3166 File ii:.205784 Win. 1. Plaintiff is FIRST HORIZON HOME LOAN, . A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION 4000 HORIZON WAY IRVING, TX 75063 2. The name(s) and last known address(es) of the Defendants}.are: JOHN H. KYL$ 49 BAYBERRY DRIVE MECHANICSBURG, PA 17055 who isiare the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 12/18/2002 mortgagors} made, executed and delivered a mortgage upon the premises hereinafter described to PLAINTIFF which mortgage is recorded in the Office of the Recorder of Cl_TMBERLAND County, in Book No. 1788, Page 1298. 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 03/01/2008 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 #hereon are collectible forthwith. 6. The following amounts are due on the mortgage: Principal Balance $255,400.07 Interest $25,372.90 02/01/2008 through 05/14/2009 (Per Diem $54.10) Attorney's Fees $1,300.00 Cumulative Late Charges $191.04 12/18/2002 to 05/14/2009 Non Sufficient Funds Charge $20.00 Mortgage Insurance Premium / $1,456.06 Private Mortgage Insurance Cost of Suit and Title Search $750.00 Subtotal ~ $284,490.07 Escrow Credit $O,p0 Deficit $5,724.98 Subtotal 5 724.9 TOTAL $290,215.05 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 S% of the remaining principal balance in the event the property is sold to a third parry purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. 8. Plaintiff is not seeking a judgment of personal liability (or an in personam judgment) against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. File #: 205780 i ~ tl 9. The. mortgage premises are vacant and abandoned. WHEREFORE, PLAINTIFF demands an in ~ Judgment against the Defendants) in the sum of $290,215.05, together with interest from 05/14/2009 at the .rate of $54.10 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of the. mortgaged property. PHELAN HALLINAN & SCHMIEG, LLP By: Lawrence T. Phelan, Esquire ...~-Francis S. Hallman, 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 Attorneys for Plaintiff File 8: 205780 LEGAL DESCRIPTION ALL THAT CERTAIN house and lot of ground situate in the Township of Silver Spring, County of Cumberland and State of Pennsylvania, bounded and described as follows: BEGINNING at a point by the intersection of the center line of L.T. 21018, known as Texaco Road, with the center Iine of T-S66, known as Kanhaus Road, as shown on the hereinafter mentioned Plan of Lots; thence along the center line of T-566. South 02 degrees 34 minuted 40 seconds East 260 feet to a paint; thence by the dividing line between Lots Nos. 1 S and 16 on said Plan, South 87 degrees 42 minutes S4 seconds West 222.98 feet to a point; thence by the dividing line between Lots Nos. 16 and 17, North 07 degrees 45 minutes East, 268 feet to a point in the center line of L.R. 21018; thence by the center line of L.R. 21418, North 88 degrees 59 minutes 30 seconds East 17S feet to a point, the place of BEGINNING. HAVING THEREON erected a single family, two story dwelling house known and numbered 195 Konhaus Road, Mechanicsburg, PA. BEING Lot No. 16 on the Plan of Lots of Clepger Farms, Inc. which Plan is recorded in the Cumberland County Recorder`s Office in Plan Book 21, Page 68. SUBJECT to the setback line and highway right-of--way easements as shown on said Plan and to restrictions and reservations of record. File N: 205780 .. _ . .. . :'. ~ .. .., .. .. BEING the same premises which Peggy A. Simpson, widow, by her Deed dated September 24, 2002 and recorded in the Office of the Recorder of Deeds in and for Cumberland County in. Deed ~ Book X, Volume 30, Page 504, granted and conveyed unto Harry J. Kruger and Irene S. Kruger, `' his wife, Grantors herein. PARCEL N0.38-22-0135-008 PROPERTY BEING: 195 KONHAUS ROAD File #: 205780 'VERIFICA'I7ON The undersigned attorney hereby states that I am the attorney for the Plaintiff in this matter; that I . 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 .~ j Pa.RC.P. 1024 (c), and that the statenpents 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 reteipt. The undersigned understands that this statement is made subject to the penalties of 18 Pa.C.S. Sec. 49Q4 relating to unsworn falsifications to authorities. ~~ Attorney for Plaintiff DATE: ~ ~`~ ~'/ 1 Fiie ~: 205780 Ex`s ~~B~ 205780 Phelan Hallinan & Schmieg, LLP By: .Lawrence T. Phelan, Esq., Id. No. 32227 Attorney for Plaintiff 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 n ~ Chrisovalante P. Fliakos, Esq., Id. No. 94620 ~ ~ Joshua I. Goldman, Esq.., Id. No. 205047 R ~" ~`-~-. ~ CourtenayR. Dunn, Esq., Id. No. 206779 ~ `' ~~~ `~- `-' ( ~ ~ -~ r Andrew C. Bramblett, Esq., Id. No. 208375 j~ ;.: ~ {_-; ~ ~ ~~, 1617 JFK Boulevard, Suite 1400 ~~ ~-, z~ ~ - ~; One Penn Center Plaza ::~ ~' = ~ ~n Philadelphia, PA 19103 •' t~ ` ~ 215-563-7000 -~ FIRST HORIZON HOME LOAN CUMBERLAND COUNTY CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL COURT OF COMMON PLEAS ASSOCIATION CIVIL DIVISION vs. . No. 09-3121-CIVIL TERM JOHN H. KYLE 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 JOHN H. KYLE. Defendant(s) for failure to file an Answer to Plaintiffs 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 $290,215.05 Interest - 05/15/2009 to 07/02/2009 2 650.90 TOTAL $292,865.95 I hereby certify that (1}the Defendant's last known address is 811 W. TRINDLE ROAD, MECHA1yIC5BURG, PA 17050, and (2) that notice has been given in accordance with Rule 237.1, copy attached. ~/ _ /~ _ F cis Hall' an, Esquire aniel G. ieQ, 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 1. Goldman, Esquire Courtenay R. Dunn, Esquire Andrew C. Bramblett, Esquire Attorney for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED, DATE: Gy2's~ PHS # 205780 PROTHOI~TOTAR G Exhibit "C' 205780 PHELAN HALLINAN & SCHMIEG, LLP 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103 (215) 563-7000 FAX#: (215) 563-3459 Phelan Hallinan & Schmieg, LLP Representing Lenders in Pennsylvania and New Jersey October 7, 2010 JOHN H. KYLE 195 KONHAUS ROAD, MECHANICSBURG, PA 17050-3127 RE: FIRST HORIZON HOME LOAN CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION v. JOHN H. KYLE Premises Address: 195 KONHAUS ROAD, MECHANICSBURG, PA 17050 CUMBERLAND County CCP, No. 09-3121-CIVIL TERM Dear Defendant, Enclosed please find a true and correct copy of my proposed Motion to Reassess Damages and Order. In accordance with Cumberland County Local Rule 208.3(9), I am seeking your concurrence with the requested relief that is, increasing the amount of the judgment. Please respond to me within 5 days, by October 12, 2010. Should you have further questions or concerns, please do not hesitate to contact me. Otherwise, please be guided accordingly. V~ ,,.Q,y,. _..~„ ~ ......~.«~ „y,...~.. Fr is S. Hallinan, squire D iel G. Schmieg, Esquire ichele M. Bradford, Esquire Judith T. Romano, Esquire Sheetal R. Shah-Jani, Esquire Jenine R. Davey, Esquire Lauren R. Tabas, Esquire 205780 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 Courtenay R. Dunn, Esquire Andrew C. Bramblett, Esquire Enclosure 205780 °o .~ w U ~d z~ a a .~ .~ U a N pQ' 8 ~' C ~+.+ C O , V d O y 5 '~' ~°qq ° ~ ~ ~ d Cam' E ~ ~ ~ ~ v ~ ~ s o Gs ~ 3aoodiz woa~ a~idw ~ .~ . OLOZ LOl~d 9SZLLZti000 ° ~''c ~ ~ o9Z' I~0 $ w~ z o ~ c ~~, O V 53M09 A3Nlld ~ ~ ~ ~r.~r~ j ~ ~.r® ~.:~ o O a: ~ _°? ' 7 ~~ ~ ~ ~~ ~ ~. ~ G a ~oas~ ~ ~ ,~ ~ ~ ~~~ _y .. _ I=1 ~ X ~ Lp A W u ~ y w e ~ ~ °~ ei , o ~ u ~~ c E a~Oi ~ ~= o ,~ b U ~ N ~ t~ ~ F O i., ~ N ~''«Y ~ ~„ ..~. G O. ~ , p N OD 8 .^ 0 ~ M 0 ~ GOO T 7 O O 4. ~ ~ ~ r H OyC.i H'G ... G o ~"" Ej rn •.I rl a O q O O . ,~ a a , ~~.~~~ ~ r h V ~ 'a C ~ d P ~~~~~ y a ~ ,,fyd~y ~Ao a ~ ~ ~ iH F r V ~ ~ ~ ~ ~ y V ~ ~ ~ C v ~ '5 U ~ ~ ~ ~ ~ v. ~ W a ~ ~ a a O D b G O W '= `~ T z ~w a e ~ z ~ ~ ~; x d 3 ~: b a ~ ~ ~~ ~ ~ ~o ~ ~ o~ ~ x x x .~ ~ ~ x x ~~ z o 0 0 ~ i ado a°o o°o ~ ~ ~ ~ v N N N '~ a a a oT ~3 ~a a~ °° M 0 a a a ~ L C y ~ y ~ C Zd0 0 00 h v-~ O N VERIFICATION I hereby state that I am the attorney for Plaintiff in this action, that I am 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 my 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. Phelan Hallinan & Schmieg, LLP DATE: 10~(Ll ~cO By: '[] 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 ~Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 ATTORNEY FOR PLAINTIFF 205780 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 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 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 FIRST HORIZON HOME LOAN CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION Plaintiff v. JOHN H. KYLE Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No.: 09-3121-CIVIL TERM CERTIFICATION OF SERVICE 205780 ~, I hereby certify that true and correct copies of Plaintiff s Motion to Reassess Damages, and Brief in Support thereof, were sent to the following individuals on the date indicated below. JOHN H. KYLE JOHN H. KYLE 195 KONHAUS ROAD, 49 BAYBERRY DRIVE MECHANICSBURG, PA 17050-3127 MECHANICSBURG, PA 17055 JOHN H. KYLE 811 W. TRINDLE ROAD MECHANICSBURG, PA 17050 Phelan Hallinan & Schmieg, LLP DATE: Lip ~ ~ tJc. ~ C ~ By: LJ 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. Tahas, 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 ~Courtenay R. Dunn, Esq., Id. No. 206779 ^ Andrew C. Bramblett, Esq., Id. No. 208375 ATTORNEY FOR PLAINTIFF 205780 PHELAN HALLINAN & SCHMIEC~, LLP 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103 (215) 563-7000 FAX#: (215) 563-3459 Phelan Hallinan & Schmieg, LLP Representing Lenders in Pennsylvania and New Jersey October 14, 2010 Office of the Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: FIRST HORIZON HOME LOAN CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION v. JOHN H. KYLE CUMBERLAND County CCP, No. 09-3121-CIVIL TERM Dear Sir or Madam: Enclosed for filing please find Motion to Reassess Damages, Brief in Support thereof, and Certification of Service with regazd to the above captioned matter. Kindly return atime-stamped copy of the enclosed in the self-addressed stamped envelope provided for your convenience. Very truly yours, ~jO~~~ L ence T. Phelan, Esquire 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 205780 Joshua I. Goldman, Esquire Courtenay R. Dunn, Esquir~ Andrew C. Bramblett, Esquire Enclosure cc: JOHN H. KYLE 205780 FILED-OFFICE Ot* THE 6'ROTHONOTARY 2010 OC1' 19 dM 11 ~ 10 CUh9B£RLAI~lq COUNTY PEPdNSYLVANfA OCT 18 [u~u IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA FIRST HORIZON HOME LOAN CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION Plaintiff v. JOHN H. KYLE Defendant Court of Common Pleas Civil Division CUMBERLAND County No.: 09-3121-CIVIL TERM 4 ~ RULE AND NOW, this ~ ` day of ~~~`"~~2010, a Rule is entered upon the Defendant to show cause why an Order should not be entered granting Plaintiff's Motion to Reassess Damages. tg ,, l q Rule Returnable on the ~ day of /" 2010, at / ~ ~~ anM Main Courtroom of the Cumberland County Courthouse, Carlisle, Penns 1 Y J. e`~~, ~ • ky Le._ ~~/lQ/~ 2os~8o FI~.FD-OFFICE Oi= TI-I~ ~'~fiTt~lO~lOTARY 2Dl0 Lt;T ~9 ~~~ 2~ c0 +~~~r'i3~:ftiL ~t~~0 COU?~~i'r' I~~~~P.'SY~.Vt~~dl~1 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 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 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 FIRST HORIZON HOME LOAN CORPORATION,. A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION Plaintiff v. JOHN H. KYLE Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No.: 09-3121-CIVIL TERM CERTIFICATION OF SERVICE 205780 I hereby certify that a true and correct copy of our Motion to Reassess Damages noting a Rule Return date of November 19, 2010 was sent to the following individual on the date indicated below. JOHN H. KYLE 195 KONHAUS ROAD, MECHANICSBURG, PA 17050-3127 JOHN H. KYLE 811 W. TRINDLE ROAD MECHANICSBURG, PA 17050 DATE: ~~' ~- ~ ' ( 0 JOHN H. KYLE 49 BAYBERRY DRIVE MECHANICSBURG, PA 17055 Phelan Hallinan & Schmieg, LLP By: 1/~ ~J 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 ^ Courtenay R. Dunn, Esq., Id. No. 206779 ^ Andrew C. Bramblett, Esq., Id. No. 208375 ATTORNEY FOR PLAINTIFF 205780 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ]FIRST HORIZON HOME LOAN CORPORATION, CUMBERLAND COUNTY A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION COURT OF COMMON PLEAS Plaintiff, CIVIL DIVISION V. No.: 09-3121-CIVIL TERM JOHN H. KYLE Defendant(s) AFFIDAVIT OF SERVICE PURSUANT TO RULE 3129.1 COMMONWEALTH OF PENNSYLVANIA ) PHILADELPHIA COUNTY ) SS: As required by Pa. R.C.P. 3129.1(a) Notice of Sale has been given to Lienholders and any known interested party in the manner required by Pa. R.C.P. 3129.2(c) on each of the persons or parties named, at that address, set forth on the Affidavit and as amended if applicable. A copy of the Certificate of Mailing (Farm 3817) and/or Certified Mail Return Receipt stamped by the U.S. Postal Service is attached hereto Exhibit "A". ? 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 -t= ? Jay B. Jones, Esq., Id, No. 86657 _w: ? Peter J. Mulcahy, Esq., Id. No. 61791 ndrew L. Spivack, Esq., Id. No. 84439 k Jaime McGuinness, Esq., Id. No. 90134 ? Chrisovalante P. Fliakos, Esq., 1d. No. 94620 ? Joshua 1. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Andrew C. Bramblett, Esq., Id, No. 208375 Attorney for Plaintiff Date: 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. PHS # 205780 FIRST HORIZON HOME LOAN CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION Plaintiff V. JOHN H. KYLE Defendant(s) COURT OF COMMON PLEAS CIVIL DIVISION NO. 09-3121-CIVIL TERM CUMBERLAND COUNTY PHS # 205780 AMENDED AFFIDAVIT PURSUANT TO RULE 3129.1 FIRST HORIZON HOME LOAN CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION, Plaintiff in the above action, by the undersigned attorney, sets forth as of the date the Praecipe for the Writ of Execution was filed; the following information concerning the real property located at 195 KONHAUS ROAD„ MECHANICSBURG, PA 17050-3127. 1. Name and address of Owner(s) or reputed Owner(s): Name Address (if address cannot be reasonably ascertained, please so indicate) ,JOHN H. KYLE 811 W. TRINDLE ROAD MECHANICSBURG, PA 17050 2. Naive and address of Defendant(s) in the judgment: Name Address (if address cannot be reasonably ascertained, please so indicate) 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 Address (if address cannot be reasonably ascertained, please indicate) COMMONWEALTH OF PENNSYLVANIA DEPARTMENT 280946 BUREAU OF COMPLIANCE HARRISBURG, PA 17128-0946 4. Name and address of last recorded holder of every mortgage of record: Name Address (if address cannot be reasonably ascertained, please indicate) None. 5. Name and address of every other person who has any record lien on the property: Name 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 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 Address (if address cannot be reasonably ascertained, please indicate) TENANT/OCCUPANT 195 KONHAUS ROAD, MECHANICSBURG, PA 17050-3127 Domestic Relations of 13 North Hanover Street Cumberland County Carlisle, PA 17013 Commonwealth of Pennsylvania P.O. Box 2675 Department of Welfare Harrisburg, PA 17105 Internal Revenue Service Advisory U.S. Department of Justice U.S. Attorney for the Middle Districtt of PA COMMONWEALTH OF PENNSYLVANIA BUREAU OF INDIVIDUAL TAX INHERITANCE TAX DIVISION DEPARTMENT OF PUBLIC WELFARE TPL CASUALTY UNIT ESTATE RECOVERY PROGRAM U.S. Department of Justice U.S. Attorney for the Middle District of PA THERESE MARIA KYLE THERESE MARIA KYLE C/O JORDAN D. CUNNINGHAM, ESQ. JOHN HENRY KYLE C/O PATRICK W., QUINN, ESQ. JOHN HENRY KYLE C/O PATRICK W. QUINN, ESQ. 1000 Liberty Avenue Room 704 Pittsburgh, PA 15222 Federal Building, P.O. Box 11754 228 Walnut Street Harrisburg, PA 117108 6TH FLOOR, STRAWBERRY SQUARE DEPT. 280601 HARRISBURG, PA 17128 P.O, BOX 8486 WILLOW OAK BUILDING HARRISBURG, PA 17105-8486 Federal Building, P.O. Box 11754 228 Walnut Street Harrisburg, PA 17108 49 BAYBERRY DRIVE MECHANICSBURG, PA 17055 Cunningham & Chernicoff, P.C. 2320 N 2ND STREET PO BOX 60457 HARRISBURG, PA 17106=0457 WOLFE & RICE LLC 47 W HIGH ST GETTYSBURG, PA 17325 ALLEGHENY CO FAMILY DIVISION 440 ROSS STREET PITTSBURGH, PA 15219 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 penaltie 8 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. By: f ? < j/I(J Attorney for Plaintiff 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., I'd. No. 94620 ? Joshua I. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id, No. 206779 ? Andrew C. Bramblett, Esq., Id. No, 208375 0 46 1 31000 dlZ VVQ23J Q311V" a ' 0602 66onv 9SZLLZV000 IbZO i N kr o9c°:4 SaAAOR A3w O Z ` 0 \ ? ? '3 4 V V V&Od ? N C - E "-j,o a3 ~ I ? rJ p ?t a v N T [ ? O x . ` a 3 F ? N E v < Y 4o + t o ; • U O ? ? Vl < N Z O O N 4 a O T•. d vs - i cn a-£ 4 -; a H R Q Qr' C 24 Q w H Q C7 r4 r7 r7'? a 40 Q °' kf) th C) 00 U c o V +a+ua en L f1r w ?° Iu t-- N C4 .: ° ?? Q ?.1 r. x a w G .r O O •-+ Iv 'y 0 , ?. ra O C4 9 O U co I:7 ? wo W F? o cM;ca AU.rU o u0 ro UAax qc? ? .aA V'(. ?° ?s .r? x OOxd UCa7a x w???C Q o?W, w 1 . cv ? wa UgAx Ha n? y e4 en 00 - E ? .=7 I iq F tL L ja ?g ? t ?a v W O a° Y N ol arn H' 3 r ? v a; a`OOa Sti N ? zQo U o o a N a. ? ro ??,,®® ?3 gI1 tMF £3? IZ ? O h w I c ? Y y 9C9f? t Z L g Zb o_ ? ^ O S Ohh f oz ? O - - • - - Q ro r >, p1 o a ,. .-A °' '.' N C U C O O C •O W ? •o - ?h ^? ? cn o y C U V ? > O O U O O •D.•9 O ?n U N ?? w ? 0 > ti p o ? N O on°.p ? o cs3 n.C ? G w T o ^ .F F .J o U N ? ti N C ? OO U G V ? tC ? -O^ X er to rn `? °??' y F o 4t rn j O A ?o z •. a H N U w o x a a ° ? ? Z ? I it W 0.s J•+ Z •v ? a ? .. , . e,,, i ? W a CY.7 a" x °wa x x 4 3 Zv z'?? ?v?? avH? x ?O Q W W ?+ d x w d O ? c G?x r4?•G?O? za E-? .a a ,,w°?F, `'? ?? ti x?? xo ?Mo? oo°3w ooa?? w o? ?- F•+? E-UU'Np., ?,U??tC7 tiVdva ? Fx ?U % % % % •X •X k % -X -X % •K % -X -X U U w `n O? a r-? F C. AFFIDAVIT OF SERVICE (FNMA) PLAINTIFF CUMBERLAND COUNTY FIRST HORIZON HOME LOAN CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION PHS # 205780 DEFENDANT SEX-VICE TEA-W kzc JOHN H. KYLE COURT NO.: 09-3121-CIVIL TERM SERVE JOHN H. KYLE AT: 49 BAYBERRY DRIVE MECHANICSBURG, PA 17055 TYPE OF ACTION XX Notice of Sheriff's Sale SALE DATE: 1210 M10 SERVED Served and made known to JOHN H. KYLE , Defendant on the ls?day of Ao c"K w20 Lb-, at 7%30, o'clock,. M., at 117 !V. 4fh 3& L o#61.4 P& in the manner described below: 215;fendant personally served. _ Adult family member with whom Defendant(s) reside(s). C, 7) i" '77 ° ? mow' r< ^C 9 Relationship is _ Adult in charge of Defendant'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 office or usual place of business. _ an officer of said Defendant's company. _ Other. Description: Age Height f10r Weight 22a Race W Sex 10 Other 1, _ zk&ft b A " a competent adult, being duly sworn according to law, depose and state that I personally handed a true and correct copy of the Notice of Sheriff sS m themalttteT s p Ise fctttb he?gi issued in t capt* d case on the date and at the address indicated above. 7? . F go ASEs ttiDT Ff 51t f6 " S.WAt.. M I)-ES?'r6/1T?a13 Swots to and subscribed b(scuosED •t lb" MQ , Ky LSE ids 1 D ?S Ce before me this _L day of &6V , 20 N By: NOT SERVED f 20 , at i o'clock; M., Defendant NOT FOUND because: c nt , Does Not Exist _ Moved _ Does Not Reside (Not Vacant) No Answer on at at _ Service Refused Other. - Sworn to and subscribed KIMBERLY CORTY before me this day NOTARY PUBLIC Y. STATE OF NEW JERSEY Nom: MY caMlvnssraN EVIM td. N. 32327 PeOKi$ lLSe?.Jhq•. It Na 675 Dewkl G. Sd?kq, f7eq, M. Nw f27LS MkhekM.sm"AF ,Fiq,YN.am Jadhh T. aeWre, Eeq, N. Na 30745 9h OW R Shehded. FAI, X Na $170 JeWW 1- b" 7, E %, U N.97q'1.7 l.am' 0. Tdry E14» Id. N.93337 vhVk#dTW$M hL it N'% 1 ? NaWV Pekr•j.91r?er? W Id Na61M And" L SpWn Emil., y. Na NM JAW MtCdra/. Esq, hi N.9013{ Ckb dowP.tldow,Eiq.,t4Nkftu F , r. Geumm Faq. IL Na 205807 Cwrwsr 0. tAw, FA%} X Na 206779 ? 1677 john ° '?°? aNd 9Y ? • 4 . k Half PhAkJdph4, PA MIp.1814 MP 563-na t 1'9 N. 4-fu ST- LemDo?F. t Dq . 11 V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA FIRST HORIZON HOME LOAN Court of Common Pleas CORPORATION, A DIVISION OF FIRST TENNESSEE BANK NATIONAL Civil Division ASSOCIATION Plaintiff CUMBERLAND County V. No.: 09-3121-CIVIL TERM JOHN H. KYLE Defendant rIip ORDER AND NOW, thi da of N , 2010 the Prothonotary is ORDERED to a mend the in rem judgment and the Sheriff is ORDERED to amend the writ nune pro tune in this case as follows: Principal Balance Interest Through December 8, 2010 Per Diem $53.35 Late Charges Legal fees Cost of Suit and Title Sheriffs Sale Costs Property Inspections/ Property Preservation Appraisal/Brokers Price Opinion $255,400.07 $55,541.64 $191.04 $1,300.00 $869.50 $689.09 $52.00 $90.00 ')n';'7f2n .• Mortgage Insurance Premium / Private Mortgage Insurance Non Sufficient Funds Charge Suspense/Misc. Credits Escrow Deficit TOTAL $0.00 $0.00 ($0.00) $16,046.78 $330,180.12 Plus interest from December 8, 2010 through the date of sale at six percent per annum. Note; The above figure is not a payoff quote. Sheriffs commission is not,,.iatcluded in the above figure. I Y 0 T 1 t 1 aaa / /p COP t-aa eV4, at ? r.? C "c C`? ) J - o C' zG N ')ns'7Qn