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Home My WebLink About09-4506d/ 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 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375b" 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 210165 THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS OF POPULAR ABS, INC., MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-4 4828 LOOP CENTRAL DRIVE HOUSTON, TX 77081-2226 Plaintiff V. JOHN C. FOSCHINI 216 WEST SHADY LANE, ENOLA, PA 17025-2237 Defendant ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM l' ! V NO. 61 - VQO CUMBERLAND COUNTY CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 210165 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 #: 210165 1. Plaintiff is THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS OF POPULAR ABS, INC., MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-4 4828 LOOP CENTRAL DRIVE HOUSTON, TX 77081-2226 2. The name(s) and last known address(es) of the Defendant(s) are: JOHN C. FOSCHINI 216 WEST SHADY LANE, ENOLA, PA 17025-2237 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 06/21/2005 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORPORATED AS A NOMINEE FOR WILMINGTON FINANCE, A DIVISION OF AIG FEDERAL SAVINGS BANK which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No. 1911, Page 4914. 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 03/01/2009 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 #: 210165 by written notice sent to Mortgagor, the entire principal balance and all interest due 6. 7. 8 thereon are collectible forthwith. Principal Balance $91,952.64 Interest $2,600.72 02/01/2009 through 07/02/2009 (Per Diem $17.11) Attorney's Fees $1,300.00 Cumulative Late Charges $125.04 06/21/2005 to 07/02/2009 Cost of Suit and Title Search $750.00 Subtotal $96,728.40 Escrow Credit $0.00 Deficit $0.00 Subtotal 0.00 TOTAL $96,728.40 The following amounts are due on the mortgage: If the mortgage is reinstated prior to a Sheriffs Sale, the attorney's fee set forth above may be less than the amount demanded based on work actually performed. The attorney's fees requested are in conformity with the mortgage and Pennsylvania law. Plaintiff reserves its right to collect attorney's fees up to 5% of the remaining principal balance in the event the property is sold to a third party purchaser at Sheriffs Sale, or if the complexity of the action requires additional fees in excess of the amount demanded in the Action. Plaintiff is not seeking a judgment of personal liability (or an in person am 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 #: 210165 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 $96,728.40, together with interest from 07/02/2009 at the rate of $17.11 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: ,?- J Lawrence T. Phelan, Esquire Francis S. Hallinan, Esquire Daniel G. Schmieg, Esquire Michele M. Bradford, Esquire Judith T. Romano, Esquire Sheetal R. Shah-Jam, 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 Attorneys for Plaintiff File #: 210165 LEGAL DESCRIPTION Deed Book 263, Page 3348 All those two certain adjoining tracts of land situate in East Pennsboro Township, County of Cumberland, Commonwealth of Pennsylvania, bounded and described as follows, to wit: TRACT NO. 1 BEGINNING at a point in the southern line of Shady Lane, which point is one hundred twenty and twenty-one hundredths feet West (120.21 feet W) of the northwest extremity of the arc or curve having a radius of ten feet (10 feet) connecting the southerly line of Shady Lane with the westerly line of Altoona Avenue; thence along the southern line of Altoona Avenue, South seventy-five degrees seven minutes West fifty-two and zero hundredths feet (S 75 degrees 07 minutes W 52.00 feet) to a point at the northeastern corner of Tract No. 2 hereinafter described; thence South fourteen degrees fifty-four minutes East eighty-four and sixty-four hundredths feet (S 14 degrees 54 minutes E 84.64 feet) to a point; thence North seventy-nine degrees forty minutes East fifty-two and zero hundredths feet (N 79 degrees 40 minutes E 52.00 feet) to a point; thence North fourteen degrees West eighty-five and zero hundredths feet (N 14 degrees W 85.00 feet) to a point in the southern line of Shady Lane, the point of BEGINNING. HAVING THEREON ERECTED a two story frame dwelling house known as 216 Shady Lane, Enola, Pennsylvania. TRACT NO.2 BEGINNING at a stone in the southern line of Shady Lane at the corner of lands now or formerly of John E. Kling and Effie B. Kling, his wife; thence westwardly along the southern line of Shady Lane, fifty-six and thirty hundredths feet (56.30 feet) to the center of Lot No. 33 on the hereinafter mentioned Plan of Lots; thence southwardly through the center line of Lot No. 33 one hundred thirty-nine and sixty hundredths feet (139.60 feet) to a point; thence eastwardly along the rear of Lots No. 28, 29, and 30, Block B, fifty-six and thirty hundredths feet (56.30 feet) to a point; thence North fourteen and one-half degrees West (N 14 1/2 degrees W) along lands now or formerly of A. C. Bixler and John E. Kline, Jr., one hundred forty-one and zero hundredths feet (141.00 feet) to a stone, the place of BEGINNING. BEING Lots No. 31, 32 and the eastern one-half of Lot 33, Block 'C', said Plan being recorded in Plan Book No. 1, Page 78. Deed Book 263, Page 3351 ALL THAT CERTAIN piece or parcel of land situate in the Township of East Pennsboro, Cumberland County, Pennsylvania, Being Lot No. 34 and the western half of Lot No. 33, Section 'C', as shown on Ira E. Shall's Additional to Enola, said plan being recorded in the Recorder's Office at Carlisle, Pennsylvania, in Plan Book 1, Page 78. Said Lots being bounded as follows: on the North by Shady Lane, thirty and zero hundredths feet (30.00 feet); on the East by the eastern half of Lot No. 33; on the South by Lots No. 27 and 28, Section 'B', thirty and sixty hundredths feet (30.60 feet); and on the West by Lot No. 35 one hundred thirty-eight and eighty hundredths feet (138.80 feet). PREMISES BEING: 216 WEST SHADY LANE PARCEL #: 09-13-1002-248 File M 210165 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: Z A?v C Attomey for Plaintiff File #: 210165 S QF 4LC .Y 2009 JUL - 7 rr .' a -,96 41? n? X35/U C R Thomas Kline Sheriff Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor Sheriffs Office of Cumberland County, .15,,;1'r of 4 ?i,r3 ?rf its 0MCE -;-RIFF FILED 2099 JUL 14 Ail 9: 4 8 The Bank of New York Mellon , vs. John C. Foschini Case Number 2009-4506 SHERIFF'S RETURN OF SERVICE 07/09/2009 07:38 PM - Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on July 9, 2009 at 1938 hours, he served a true copy of the within Notice in Mortgage Foreclosure, upon the within named defendant, to wit: John C. Foschini, by making known unto himself personally, defendant at 216 West Shady Lane Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handing tc him personally the said true and correct copy of the same. SHERIFF COST: $41.50 July 10, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF Depu Sheriff i Phelan Hallinan & SchnQjfili Attorney For Plaintiff 1617 JFK Boulevard, Suite t?L 7 ?Cl C?? One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS OF POPULAR ABS, INC., MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-4 Plaintiff vs JOHN C. FOSCHINI Defendant Court of Common Pleas Civil Division : I CUMBERLAND County : I No. CIVIL-09-4506 TO THE PROTHONOTARY: PRAECIPE Please withdraw the complaint and mark the action Discontinued and Ended without prejudice. Please mark the above referenced case Settled, Discontinued and Ended. ? Please Vacate the judgment entered and mark the action Discontinued and Ended without prejudice. ? Please mark the in rem judgment Satisfied and the action Discontinued and Ended. ? Please Vacate the Judgment entered. Date: PHELAN HA5k1?& SCHMIEG, LLP , , d. No.309519 Attorney for Plaintiff PHS # 210165 Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS OF POPULAR ABS, INC., MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-4 Plaintiff JOHN C. FOSCHINI Defendant V. Attorney for Plaintiff Court of Common Pleas Civil Division CUMBERLAND County No. CIVIL-09-4506 CERTIFICATION OF SERVICE I hereby certify true and correct copies of the foregoing Plaintiffs Praecipe was served by regular mail to the person(s) on the date listed below: JOHN C. FOSCHINI 216 WEST SHADY LANE, ENOLA, PA 17025-2237 Date: PHELAN HAIZBQAN & SCHMIEG, LLP - $y: _ Allison F. Wells, Esq., Id. No.309519 Attorney for Plaintiff PHS # 210165