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HomeMy WebLinkAbout09-8420RICHARD F. STERN, ESQUIRE ,"?VEN K. EISENBERG, ESQUIRE KEVIN P. DISKIN, ESQUIRE STERN AND EISENBERG, LLP THE PAVILION 261 OLD YORK ROAD, SUITE 410 JENKINTowN, PENNSYLVANIA 19046 TELEPHONE: (609) 397-9200 FACSIMILE: (215) 572-5025 (COUNSEL FOR PLAINTIFF) COURT OF COMMON PLEAS FOR THE COMMONWEALTH OF PENNSYLVANIA CUMBERLAND COUNTY Anson Street, LLC, by it servicer Resurgent Capital Services 15 South Main Street Greenville, SC 29601 Civil Action Number: oR - $4010 (?N;( TAM V. George Mixell and Nancy Mixell 1101 Quincy Circle New Cumberland, PA 17070 Defendant(s) ACTION FOR BREACH OF CONTRACT AND UNJUST ENRICHMENT COMPLAINT Plaintiff, Resurgent Capital Services, as servicer for Anson Street, LLC (hereinafter referred to as "Resurgent"), by and through its attorneys, Stern & Eisenberg, LLP, submits the within Complaint against the above-captioned Defendant(s), and in support thereof, respectfully avers the following: 1. Plaintiff, Resurgent (hereinafter also referred to as "Plaintiff'), is a business, with a principal place of business located at 15 S. Main Street, Greenville, South Carolina 29601. 2. Defendant, George Mixell (hereinafter referred to as the "Defendant"), is an adult individual residing at 1101 Quincy Circle, New Cumberland, PA 17070. 3. Defendant, Nancy Mixell (hereinafter referred to as the "Defendant), is an adult individual residing at 1101 Quincy Circle, New Cumberland, PA 17070. 4. This action is an attempt to collect the debt averred herein and any information obtained in this matter will be used for that purpose. 5. You must file a response to this Complaint within the time permitted under the rules of court. However, you have thirty (30) days to dispute the debt in writing to the undersigned counsel for Resurgent. 6. If you do not dispute the debt averred herein, or any portion thereof, in writing, within thirty (30) days, the debt will be assumed to be valid. If you notify the undersigned counsel for Resurgent in writing of some dispute as to the validity of this debt, in whole or in part, within the thirty (30) day period, counsel will provide you with a copy of documentation verifying the debt necessary beyond the exhibits to this Complaint, if any. Also, upon written notice to counsel requesting such advice, counsel will provide you with the name of the original creditor with whom you incurred this debt. COUNT I - BREACH OF CONTRACT 7. Paragraphs 1 through 6 above are reaverred and incorporated herein by reference as if set forth at length. 8. Defendant(s) entered into a Secondary Mortgage Loan and Note (hereinafter referred to as the "Contract") on or about November 3, 2006, wherein Resurgent, or its predecessor-in-interest, agreed to provide financing, a loan, to Defendant(s) subject to the terms and conditions contained in the Note, which Note was assigned per its terms and delivered to Resurgent with notice to Defendant(s). A copy of the Note is attached as Exhibit "A" and is incorporated herein by reference as if set out at length. 9. Under the terms of the Note, Defendant(s) agreed to pay Resurgent the outstanding balance plus interest at the rate of 11.40% annually (and other conditional charges) according to the terms of the Note. 10. Defendant(s) became in default under the Note when they failed to make payment when due on or about January 1, 2009. Defendant(s) remain in default under the Note, which default permits Resurgent to accelerate the balance due under the Note. 11. Defendant(s) were notified by written notice dated May 1, 2009 that they were in default of the Note because of their failure to make payments when due under the Note. A true and a correct copy of the form of the notice sent is attached as Exhibit "B" and is incorporated herein by reference as if fully set forth. 12. Despite such notice and demands by Resurgent for payment, Defendant(s) did not, and have not cured the foregoing default, and have neglected and refused to honor the terms and conditions of said Note and have failed, refused or neglected to make payment to Resurgent of the sum justly due Resurgent. The outstanding principal balance is $67,404.18. 13. In accordance with the Note and applicable law, there is interest due at the rate of 11.40% per annum from 1/1/2009 to the date of this suit. The per diem interest due is $6,057.79. In addition, there are late charges and other charges and amounts due to Resurgent in accordance with the terms of the Note as follows: Principal Balance ................................................................... $67,404.18 Interest from the date of default 1/1/2009 to the date of this Complaint at the per diem rate of $21.05 .............................. $6,057.79 Fees ........................................................................................ $258.19 Total Due ............................................................................... $73,720.16 14. Also in accordance with the Contract, there are reasonable attorney's fees which Resurgent has been advised, and therefore avers, are assessable at the rate of 10% of the total amount due Resurgent. The amount has been calculated $7,372.00 on this account as of the commencement of this action. 15. In the event the Defendant(s) wish to bring the account current, then the Defendant(s) would be required to make the monthly payment together with all accrued expenses, which, at the date of the Complaint (not including attorneys fees and court costs) is: Monthly Payment: ......................................... $668.22 Total Months in default: ................................ 1l Fees ................................................. $258.19 Total arrears due: ........................................... $7,608.61 16. All credits due, if any, to Defendant(s) have been given to them. 17. The balance due from Defendant(s) to Resurgent under the Note as of the date of commencement of this suit is $7,608.61 and interest continues to accrue on that debt at the rate of 11.40% per annum as set forth in the Note. 18. Although demand of the sum justly due Resurgent has been frequently made, Defendant(s) have neglected, failed and refused to make payment thereof. WHEREFORE, Plaintiff, Resurgent Capital Services, as servicer, demands judgment against Defendant(s), George Mixell and Nancy Mixell, jointly and severally, in the sum of $81,092.16 plus any and all additional interest, attorney's fees and costs. COUNT II - UNJUST ENRICHMENT 19. Paragraphs 1 through 18 above are reaverred and incorporated herein by reference as if set forth at length. 20. Defendant(s) received the benefit of the loan pursuant to the terms of the Contract and have failed to make payments in accordance with the terms of the Contract. 21. Defendant(s) have acknowledged receipt by making payments, although any such payments have ceased. 22. To the extent the Defendant(s) deny the terms of the Contract, Defendant(s) have received the benefit of the consideration without just compensation to Resurgent. 23. Defendant(s), have been unjustly enriched at the expense and cost of Resurgent such that Resurgent should be compensated in an amount equivalent to what it anticipated to receive and what Defendant(s) anticipated to pay under the terms of the Note. WHEREFORE, Plaintiff, Resurgent Capital Services, as servicer, demands judgment against Defendant(s), George Mixell and Nancy Mixell, jointly and severally, in the sum of $81,092.16 plus any and all additional interest, attorney's fees and costs. Respectfully submitted, By: even K. Eisenberg, Esquire Stern & Eisenberg, LLP Attorneys for Plaintiff, Resurgent Capital Services, as Servicer DATED: Thursday, December 03, 2009 aFirmID»/<<LoanID»/J:\Steven\Resurgent Matters\NJ Complaint suit on note.doc DEMAND FOR TRIAL BY JURY Plaintiff waives its rights to a trial by jury as to any issues in accordance with 4:67-4(b). Stern & Eisenberg, LLP By: S ven . Eisenberg, Esquire DATED: Thursday, December 03, 2009 CERTIFICATION Pursuant to Rule 4:5-1, it is hereby stated that the matter in controversy is not the subject of any other action pending in any other Court or of a pending arbitration proceeding to the best of my knowledge and belief. Also, to the best of my knowledge and belief, no other action or arbitration proceeding is contemplated. Further, other than the parties set forth in this pleading and the previous pleadings, if any, at the present time we know of no other parties that should be joined in the within action. Stern & Eisenberg, LLP By: AtevenK.ng, Esquire DATED: Thursday, December 03, 2009 Loan Number. 0104706e35 - 950e FIXED RATE NOTE cl: November 3, 2006 Orange ?R COPY ?A rRU?' 0 CA [ode! Icay] 8Y j "? I&mtel 821 DUNHILL COURT, GURNEE, IL 60031 PPFweny Addnu] 1. BORROWER'S PROMISE TO PAY In return for the loan that I have received today, 1 promise to pay U.S. $ 66,000.00 (this amount Is called "Principal"), plus Interest as set forth herein, to the order of the Lender. The Lender Is Argent Mortgage Company, LLC I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the "Note Holder.' 2. INTEREST Interest will be charged on unpald principal until the full amount of principal has been paid. I will pay Interest at a yearly rate of 11.400 %. The interest rate required by this Section 2 is the rate I will pay before and after any default described in Section 6(B) of this Note. 3. PAYMENTS I will pay principal and interest by making payments each month of U.S. $ 66622 1 will make my monthly payments on the first day of each month beginning on January 1, 2007. 1 will make these payments every month until I have paid all of the principal and Interest and any other charges described below that I may owe under this Note and the Mortgage I have executed today which secures this Note, My monthly payments will be applied to interest before principal, If, on December 1, 2036 1 still owe amounts under this Note, I will pay those amounts in full on that date, which Is called the "Maturity Date." I will make my payments at 505 City Parkway West, Suite 10o, Orange, CA 92668 or at a different place if required by the Note Holder. 4. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charges for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of fifteen calendar days after the date it Is due, I will pay a late charge to the Note Holder. The amount of the charge will be 6.000 % of my overdue payment of principal and Interest. 1 will pay this late charge promptly but only once on each late payment. (B) Notice from Note Holder If I do not pay the full amount of each monthly payment on time, the Note Holder may send me a written notice telling me that If I do not pay the overdue amount by a certain date, I will be in default. That date must be at least 10 days after the date on which the notice is mailed to me or, if It is not mailed, 10 days after the date on which it Is delivered me. (C) Default If I do not pay the overdue amount by the date stated in the notice described in Section 4(8) below, I will be In default If I am in default, the Note Holder may require me to Immediately pay the full amount of principal which has not been paid and all the interest that I owe on that amount Even If, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder wit silt have the right to do so if I am in default at a later time. (D) Payment of Note Holder's Costs and Expenses If the Note Holder requires me to pay Immediately in full as described above, the Note Holder will have the right to be paid back for all Its costs and expenses to the extent not prohibited by applicable law. Those expenses Include, for example, reasonable attorneys' fees. 5. THIS NOTE SECURED BY A MORTGAGE In addition to the protections given to the Note Holder under this Note, a Mortgage, dated November 3, 2006 , protects the Note Holder from possible losses which might result If I do not keep the promises which I make in this Note. That Mortgage describes how and under what conditions I may be required to make immediate payment In full of all amounts that I owe under this Note. Initials: JC-A)A --? •r 21o-uLpas) Pagi 17/03!2006 s:55:1o PM Loan Number. 0708635 - 9508 'BORROWER'S PAYMENTS BEFORE THEY ARE DUE I have the right to make payments of principal at any time before they are due. A payment of prnoipal only Is known as a "prepayment." When I make a prepayment, l will tell the Note Holder in a letter that I am doing so. A prepayment of all the unpaid prncipal is known as a "full prepayment." A prepayment of only part of the unpaid principal is known as a "partial prepayment". I may make a full prepayment or partial prepayment without paying any penalty. The Note Holder will use all of my prepayments to reduce the amount of principal that I owe under this Note, If I make a partial prepayment, there will be no delays in the due dates or changes In the amounts of my monthly payments unless the Note Holder agrees in writing to those delays or changes. I may make a full prepayment at any time, If I choose to make a partial prepayment, the Note Holder may require me to make the prepayment on the same day that one of my monthly payments is due. The Note Holder may also require that the amount of my partial prepayment be equal to the amount of prmcipal that would have been part of my next one or more monthly payments. 7. BORROWER'S WAIVERS I and any other person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. "Notice of Dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. 8. GIVING OF NOTICES Any notice that must be given to me under this Note will be given by delivering it or by mailing it by certified mail addressed to me at the Property Address above. A notice will be delivered to me at a different address if I give the Note Holder a written notice of my different address. Any notice that must be given to the Note Holder under this Note will be given by mailing il by certified mail to the Note Holder at the address stated In Section 3 above. A notice will be mailed to the Note Holder at a different address If 1 am given a written notice of that different address. RESPONSIBILITIES OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to pay the full amount owed and to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. Oral agreements, promises or commitments to lend money, extend credit, or forbear from enforcing repayment of a debt, including promises to extend, modify, renew or waive such debt, are not enforceable. This written agreement contains all the terms the Borrower(s) and the Lender have agreed to. Any subsequent agreement between in regarding this Note or the instrument which secures this Note, must be In a signed writing to be legally enforceable. WITNESS THE HAND(S) OF THE UNDERSIGNED. GEORGE MIXELL 1 Borrower NANCY MIXELL Borrower Borrower r :10-21t (Tps) Page 2 of 2 11103!2006 5:55;10 PM Chicago Title Insurance Company Commitment Number. 2896660 EXHIBIT A SCHEDULE C PROPERTY DESCRIPTION The land referred to in this Commitment is described as follows: v/ THE FOLLOWING DESCRIBED REAL ESTATE SITUATED IN THE CITY IF GURNEE, COUNTY OF LAKE, AND STATE OF ILLINOIS, TO-WIT: LOT 109 IN FAIRWAY RIDGE UNIT 3, BEING A SUBDIVISION OF PART OF THE SOUTHWEST QUARTER IF SECTION 28, TOWNSHIP 45 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED October 21, 1992 AS DOCUMENT 3229524 IN LAKE COUNTY, IL. / Parcel/Tax I.D. #: 07-28-310-011 v Commonly known as: 821 Dunhil Court, Gurnee, IL 60031 V t FMAL NOTIC& OF DIFFADLT e IXGAL ACTION PENDING MOSS CODILIS L.L.P. LAW OFFICis 656D Ch=mood Plaza Blvd &'Wte 100 FaOMD04 CO 80111 TeiopLc 303.799.6966 N ',? Fax: 720.2 2405493 ` Rcsm-gcnt Loan No: Dear This firm has been anthorized by (the Services) and (the Creditor) of the above-referenced loan (hereinafter referred to as 'the Debt') to contact you regarding the status of this account. You are hereby provided formal notice that you are in default under the terms and conditions of the Note and Security Instrument for failure to pay the required installments when dne. If this acco=t is not brought current, to the extent allowed by state and federal law, _ _ may take reasonable collection actions, legal proceedium and other actives that cause costs to be incurred. Where allowed by state and federal law, you will be liable for these charges as welL As of . , the amount of the debt that we are seeking to collect is , which includes the sum of payments that have come due on and after the date of default , any late charges, pedodic adjustments to the payment =D1n¢ (if applicable), attorney fees and expenses of collection. Because of iaterest, late charges, and other charges or credits that may vary from day to dap, or be assessed during the legal processing of this letter, the amount due on the day that you pay may be greater. On the day you intend to pay, please contact at. : to get an updated amount due. This letter is in no way intended as a payoff statement for this account, it merely states the amount needed to cure the current delinquency as of This letter serves as notice that intends to enforce the provisions of the Note and Security Instrument you executed. You must pay the frill amount of the default on this loan by the thirty--$rird (334 day from the date of this letter which is _ (or if said date falls on a Saturday, Sunday, or legal holiday, diem on the first business day thereafter). If you do not pay the full amount of the default, our client shall accelerate the entire sum of both principal and interest due and payable, including, but not limited to, the principal, interes an all other outstanding charges and costs, and to the extent allowed under state and federal law, may invoke any other remedies provided for in the Note and Security Instrument It is Resurgent's preference to come to a resolution that avoids any legal action at all. Please contact at to discuss this important matter. IMPORTANT NOTICE: This is an attempt to collect a debt by a debt collector and any information obtained will be used for that purpose. However, if you have been previously discharged in a bankruptcy action in which this debt was not validly reaffirmed, then neither this law firm or its client is attempting to collect, recover or offset the debt as your personal liability and any provisions to the contrary contained in this letter should be disregarded- In such a case we are only seeking to enforce our dient's rights as a secured creditor with regards to the collateral pledged as security for this obligation. La notifcacion es de suma importancia. Si no comprende el contenido de ester carta obtenga una traduccion inmediatamente. EW rORTANT INFORMATION CONCERNING YOUR RIGHTS IS CONTAINED ON PAGE TWO You are hereby informed that you have the right to "cure" or reinstate The loan aflxr acxxkzafion and the rigbt to assert in a judgment, foreclosure, or otter legal proceeding the non-eustence of a default or any other defense you may have. Provisions may be contained within your Note or Security Inctrmment -11 which notice may be required prior to Resmgeaf's commanc =eat of a lawsuit Please note, however, that your right to core this default as refs and herein does not suspend yon payment obligations. Puurmant to the IL•tmI of the NOto, your lirttatimcnt is std due on 1(a if said date(s) falls on a Saturday, Sunday, or legal hofiday, then on the first busing day tI>mtdter). In addifima any advances made by the Servicer to protect its lien position may be added to the total amount nerxssmy to cros the default Please disregard this notice if a payment sufficint t D cure the default has already been seat At this time, no aftamey with 6:ds firm has pea;on Uy reviewed the particulars of your account This law fem is attempting to collect a debt for our client, and any infer mafion obtained will be used fur that purpose Federal law gives you thirty clays after you receive this letter to dispute the validity of this debt or any part of it unless you. dispute the debt within that 30 day period, we wM anuume that it is valid. U you notify this law firm in writing at the firm address above wlthlcn the deify day period that debt, or zzy portion thereat; is disputed, we wilt.- a) Provide to you verification of the debtor it copy of ngjudgmeat entered against you. b) Provide to you the name and address of your original creditor, if the original creditor is different from the current creditor. A "CURE" of "R fist_atcment R.igbt° similar to that descdbed in the prior paragraph may be available in many statrs. NO PERSON IN T EM LAW OFFICE WILL GIVE YOU ANY LEGAL ADVICE. If? at any time, you make a written, request to this law fum not to be conbuled by phone at your place of employment, we will not do so. If, at W time, you make a written request to this law fmm not to contact you, we will not do so, except by legal action. If you voluadauly seder possession of the collateral specified herein, you could still owe additional monies after the money received from. the sale of the collateral is deducted from the total amount you Owe. [sample data) would Is7ce you to be aware that if you are unable to make payments or r= umc payments within a reasonable period of time due to a reduction in your income resulting from a loss or reduction in your employment; you may be eligible for Plomeownership Counseling. Please contact the HUD toll free number (800-569-4297) to obtain a list of HUD approved mnprof t organizations servicing your residential area- You are notified that this default and other legal action that may occur as a result thereof may be reported to one or more local and national credit reporting agencies by requests that all payments be made in certified funds, cashier's check or money order(s) payable to and mailed to You may contact at i should yon have semcaig questions regarding your account. The matters dismwed herein are of extreme importance. We trust you will give them appropr+ate attention. Very truly yam, Moss Codilis, L.L.P. cc: 0 1 ,,, prauoo Of TX .j xT. ,?Js. SO Po 00 ?,1X116 q va* ?