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Home My WebLink About09-3710Phelan Hallinan & Schmieg, LLP Lawrence T. Phelan, Esq., Id. No. 32227 ,.?ncis 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 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 198341 WELLS FARGO BANK, NA 3476 STATEVIEW BOULEVARD FORT MILL, SC 29715 Plaintiff V. DAVID J. MCMILLEN KIMBERLY S. EYSTER 444 3RD STREET WEST FAIRVIEW, PA 17025-3126 Defendants ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. bq - 3710 0.,livit-lem CUMBERLAND COUNTY CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 198341 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 #: 198341 1. Plaintiff is WELLS FARGO BANK, NA 3476 STATEVIEW BOULEVARD FORT MILL, SC 29715 2. The name(s) and last known address(es) of the Defendant(s) are: DAVID J. MCMILLEN KIMBERLY S. EYSTER 444 3RD STREET WEST FAIRVIEW, PA 17025-3126 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 10/30/1998 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to NORTH AMERICAN MORTGAGE COMPANY, which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No. 1494, Page 270. By Assignment of Mortgage recorded 03/09/2009 the mortgage was assigned to PLAINTIFF which Assignment is recorded in Assignment of Mortgage Instrument No. 200906606. Said mortgage was modified as set forth in the loan modification agreement recorded 06/27/2006, Book No. 728, Page 1627. 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 10/01/2008 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 #: 198341 The following amounts are due on the mortgage: 6 . Principal Balance $71,099.54 Interest $3,800.50 09/01/2008 through 06/02/2009 (Per Diem $13.82) Attorney's Fees $1,300.00 Cumulative Late Charges $0.00 10/30/1998 to 06/02/2009 Mortgage Insurance Premium / $48.38 Private Mortgage Insurance 00 750 Cost of Suit and Title Search . Subtotal $76,998.42 Escrow Credit ($372.92) Deficit $0.00 Subtotal 372.92 TOTAL $76,625.50 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. 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 File #: 198341 because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or hasthave been denied assistance by the Pennsylvania Housing Finance Agency. 10. This action does not come under Act 91 of 1983 because the mortgage is FHA-insured. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $76,625.50, together with interest from 06/02/2009 at the rate of $13.82 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. v - awrence . Phelan, Esquire Francis S. Hallinan, Esquire Daniel G. Schmieg, Esquire Michele M. Bradford, Esquire Judith T. Romano, Esquire Sheetal R. Shah-Jani, Esquire Jenne 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 Attorneys for Plaintiff File #: 198341 LEGAL DESCRIPTION ALL THAT CERTAIN lot of ground with the improvements thereon erected situated in the Boro of West Fairview, Cumberland County, Pennsylvania, more particularly bounded and described as follows: BEGINNING at corner of lot, now or formerly of William Shaull and west side of Third Street; thence in a southwestem course one hundred and three (103) feet to alley; thence along alley (along run) in a northwestern course thirty (30) feet to lot, now or formerly of Frank J. Shaull; thence in a northeastern course along lot, now or formerly of Frank J. Shaull, one hundred and two (102) feet to Third Street; thence in a southeastern course along Third Street thirty (30) feet to the Place of BEGINNING. KNOWN as Lot No. 16 in May's Addition to West Fairview. HAVING THEREON ERECTED a two and one half story frame dwelling house No. 444 Third Street, West Fairview, Pennsylvania. BEING THE SAME PREMISES which Charles H. Bowers and Lori A. Bowers, his wife, by deed dated April 30, 1992 and recorded in the Cumberland County Recorder's Office in Deed Book'Q, Volume 35, Page 548, granted and conveyed unto Richard Gilmore and Tina Gilmore, his wife, grantors herein. PARCEL #: 45-17-1044-029 PROPERTY ADDRESS: 444 3RD STREET File #: 198341 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. DATE: " orney for at * File #: 198341 0 Fes- 4'? :RCE OF THE Kr,', NMTARY 2H9 JUN -4 PM 1: 42 i ''ice {?Y Pe"YLV A $73. 50 PO ATM Ck.'?' 8t3y?7 ? aa?a?s Sheriff s Office of Cumberland County R Thomas Kline ~.°~~~v of ~u~t~brt/~~r Edwazd L Schorpp Sheri ~ ~ Solicitor ~, ~ Ronny RAnderson - ~ Jody S Smith Chief Deputy tee of two s~~iFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 06/08/2009 03:44 PM -Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on June 8, 2009 at 1544 hours, he served a true copy of the within Complaint in Mortgage Foreclosu'r'e, upon the within named defendant, to wit: David J. McMillen, by making known unto himself person Ily, defendant at 444 3rd Street West Fairview, Cumberland County, Pennsylvania 17025 its contents and~at the same time handing to him personally the said true and correct copy of the same. 06!08/2009 03:44 PM -Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on June 8, 2009 at 1544 hours, he served a true copy of the within Complaint in Mortgage Foreclosu'r'e, upon the within named defendant, to wit: Kimberly S. Eyster, by making known unto David McMille~, husband of defendant at 444 3rd Street West Fairview, Cumberland County, Pennsylvania 17025 its Contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $58.40 SO ANSWERS, June 09, 2009 2009-3710 Wells Fargo Bank v David J. Md~Iillen R THOMAS KLINE, SHHERIFF puty Sheriff rv O ~ ~~ ~ ~ ~~~' ~ ~ ~ ~ : _ ~;` - ~ ~~ "~ `- :.r'F- T ~~.: N ) .- 1 ~ _' ~' i Tv, .~ Y ,"l i. C- .- Cl~ p Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 Attorney For Plaintiff f WELLS FARGO BANK, NA Court of Common Pleas , C'0 Plaintiff Civil Division vs CUMBERLAND County = ?T DAVID J. MCMILLEN KIMBERLY S. EYSTER No. 09-3710-CIVIL TERM Defendant 5 3c: AR A l 7r`iPIP TO THE PROTHONOTARY: Please vacate the judgment(s) entered and mark the action discontinued and ended without prejudice. Date: Ianuary 25, 2011 PHE? LINAN &_?EG, LLP La?eee?'Phelan, Esq., Id. No. 322 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 Allison F. Wells, Esq., Id. No. 309519 PHS# 198341 Attorneys for Plaintiff OL) Q losD&l(b ???asy30? a