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HomeMy WebLinkAbout10-0485Phelan 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. 208375 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 227378 BAC HOME LOANS SERVICING, L.P. 7105 CORPORATE DRIVE PLANO, TX 75024 V. Plaintiff STEPHEN W. CHUMBLEY ANGELA C. CHUMBLEY 108 A STREET PLAINFIELD, PA 17081 Defendants F 11 17 Zug J l 2L ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. 1 D - yeS 0t.,1. ?Fi??'?? CUMBERLAND COUNTY Q 49Z a0 It c= _ 14? C& Qaak-rS File #: 227378 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. CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION CUMBERLAND COUNTY COURTHOUSE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 File #: 227378 1. Plaintiff is BAC HOME LOANS SERVICING, L.P. 7105 CORPORATE DRIVE PLANO, TX 75024 2. The name(s) and last known address(es) of the Defendant(s) are: STEPHEN W. CHUMBLEY ANGELA C. CHUMBLEY 108 A STREET PLAINFIELD, PA 17081 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 03/29/2008 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORPORATED AS A NOMINEE FOR NEW DAY FINANCIAL, LLC. which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Instrument No. 200810937. 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 09/01/2009 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 by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. File #: 227378 6. The following amounts are due on the mortgage: Principal Balance $123,425.34 Interest $3,833.88 08/01/2009 through 01/19/2010 (Per Diem $22.29) Attorney's Fees $650.00 Cumulative Late Charges $197.70 03/29/2008 to 01/19/2010 Costs of Suit and Title Search $550"00 Subtotal $128,656.92 Escrow Credit $0.00 Deficit $452.54 Subtotal $4,52-54 TOTAL $129,109.46 7. 8. Plaintiff is nat seeking a judgment of personal liability (or an in nersonam 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. 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. File #: 227378 9. 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 $129,109.46, together with interest from 01/19/2010 at the rate of $22.29 per diem to the date of judgment, and other costs, fees, and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. PHELAN HALLINAN & SCHMIEG, LLP 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 Z Courtenay R. Dunn, Esq., Id. No. 206779 ? Andrew C. Bramblett, Esq., Id. No. 208375 Attorneys for Plaintiff File #: 227378 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. orney for Plaintiff DATE: File #: 227378 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff OFFICE OF 'HE SHERIFF t J 2010 X ^9 61 Jody S Smith Chief Deputy Edward L Schorpp Solicitor BAC Home Loans Servicing, LP vs. Stephen W. Chumbley Case Number 2010-485 SHERIFF'S RETURN OF SERVICE 01/25/2010 03:39 PM - Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on January 25, 2010 at 1539 hours, she served a true copy of the within Complaint in Mortgage Foreclosure, upon the within named defendant, to wit: Stephen W. Chumbley, by making known unto himself personally, at 108 A Street, Plainfield, Cumberland County, Pennsylvania 17081 its contents and at the same time handing to him personally the said true and correct copy of the same. 01/25/2010 03:39 PM - Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on January 25, 2010 at 1539 hours, she served a true copy of the within Complaint in Mortgage Foreclosure, upon the within named defendant, to wit: Angela C. Chumbley, by making known unto herself personally, at 108 A Street, Plainfield, Cumberland County, Pennsylvania 17081 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $49.40 January 26, 2010 SO ANSWERS, 1 NY R ANDERSON, SHERIFF By Deputy Sher if f ;c CounfySuite Sheriff, Telecsuft. inc. 6 ' BAC HOME LOANS SERVICING, L.P.: IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PA c Plaintiff rock .°? vo r v. : No. 10-485 Civil Term CP STEPEHN W.CHUMBLEY : MORTGAGE FORECLOSURE ar C> ANGELA C. CHUMBLEY, 'C-' w am Defendants To: Courtenay R. Dunn, Esquire (Attorney of Record for BAC Home Loan Servicing) You are hereby notified to file a written response to the enclosed Answer to Plaintiff's Complaint with New Matter and Affirmative Defenses, within twenty (20) days from service hereof or a judgment may be entered against you. By: Geoffrey M. Biringer, Esq. MidPenn Legal Services 401 E.Louther Street BAC HOME LOANS SERVIC Plaintiff V. STEPEHN W.CHUMBLEY ANGELA C. CHUMBLEY, Defendants ENG, L.P.: IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PA No. 10-485 Civil Term MORTGAGE FORECLOSURE ANSWER, NEW MATTER AND AFFIRMATIVE DEFENSES ANSWER 1. Admitted. 2. Admitted. 3. Admitted that the assignment described was executed as indicated and filed with the Recorder of Cumberland County. Proof is demanded that the named Plaintiff was the proper party in interest at the time this suit was commenced and that it had standing through due negotiation, ownership and possession of the note for which the mortgage serves as security at the inception of the suit and at present. 4. Denied. Proof thereof is demanded at trial as no description is attached. 5. Denied. As set out more fully in New Matter and Affirmative Defenses below, Defendants' loan is eligible for modification under the Home Affordable Modification Program (HAMP), pursuant to which Plaintiff is obligated to explore Defendants' eligibility for this and any other program they may be eligible for, before proceeding further with foreclosure. 6. Denied. As set out more fully in New Matter and Affirmative Defenses below, Defendants' loan is eligible for modification under the Home Affordable Modification Program (RAMP), pursuant to which Plaintiff is obligated to explore Defendants' eligibility for this and any other program they may be eligible for, before proceeding further with foreclosure. 7. Denied. Defendants are without information sufficient to form a belief as to the truth of the averments and proof thereof is demanded at trial. 8. Denied in part. It is denied that Defendants did not meet with an authorized consumer credit counseling agency. All other averments are admitted. 9. Admitted. WHEREFORE, Defendants pray that Plaintiff's Complaint be dismissed and judgment entered for the Defendants. NEW MATTER 10. Paragraphs 1-9 are incorporated herein be reference hereto. 11. Defendants' loan with Plaintiff is eligible for modification pursuant to the Home Affordable Modification Program (HAMP). 12. Pursuant to said Program, any foreclosure action is to be temporarily suspended pending application of the borrower for the Program or alternative prevention options. Program Guidelines, p.3, "In Foreclosure Process: Temporary Suspension of Foreclosure Proceeding," Supplemental Directive 09-1, p. 14. 13. Defendant has applied for the Program and received an acknowledgment from the Plaintiff (Exhibit "1," 2 pages). AFFIRMATIVE DEFENSE HOME AFFORDABLE MODIFICATION PROGRAM (HAMP) 14. Paragraphs 1-13 are incorporated herein by reference hereto. 15. Until Plaintiff has determined Defendants' eligibility for HAMP, or other foreclosure prevention programs and notified Defendants of their eligibility, Plaintiff cannot proceed with the above-captioned action. WHEREFORE, Defendants pray that Plaintiff's Complaint be dismissed and judgment entered for the Defendant. Dated: ?,11b1 dm0 MIDPENN LEGAL SERVICES By: Geoffrey M. Biringer 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 iii MidPenn Legal Services 401 East Louther Street, Suite 103, Carlisle, PA 17013 Phone 717-243-9400 FAX 717-243-8026 Bank of America Home Loans P.O.Box 650070 Dallas, Texas 75265-0070 Toll-Free 800-822-5288 www rnidpenn.org December 4, 2009 Re: Stephen W. and Angela C. Chumbley 108 A Street Plainfield, PA 17081 Account#183164086 FHANA Case# 4418210673703 Dear Sir/Ms.: Please be advised that our office is providing housing counseling services to the above husband and wife in an effort to make their home more affordable by modifying their loan with you (Release and Authorization enclosed). This couple has experienced a severe loss of income over the past year and it now appears that they are paying at least 40% of their income for their housing which is well above the federal level of affordability. This, combined with the fact that their home appears to be "underwater," has rendered their situation dire. Now that, as of August 15, 2009, FHA borrowers are eligible for Loan Modification through the Helping Families Save Their Homes Act of 2009, 1 would appreciate, if you would advise me, at your earliest convenience as to what information, if any, you already have about this loan, and what more may be needed to make a determination for a modification pursuant to the Act, or for any other program you may be aware of to make this loan more affordable. Thank you for your kind attention and anticipated cooperation. cc: Chumbleys Sincerely, 1 ?41? ? ? /-);Z, - Geoffrey M. Biringer Ex. "1" =1! LSC 1 BnnkefAww1k* W. HOMLOOIIS Po Box. 5970 Sire Valay. CA 93082 0000304-0000304 LETRS 001 ------ 750179 Stephen Chumbley & Angela Chumbley 108 A Street Plainfield PA 17081 Notice Date: January 12, 2010 Account No.: 183164086 Properly Address: 108 A Street Plainfield, PA 17081 YOUR REQUEST HAS BEEN RECEIVED -------- -------------- -- -'Th`an you r your recen correspondence as m to-6AC ome Loans Servicing, LP. WHAT YOU CAN EXPECT We are in the process of obtaining the documentation and information necessary to address your questions and concerns. We will provide a more complete response within twenty (20) business days. THANK YOU FOR YOUR BUSINESS Please accept our sincere apology for the delay. Thank you for the opportunity to be of assistance. This communication is from BAC Home Loans Servicing, LP, a subsidiary of Bank of America, N.A. ftwe write your accord number on a1 correspor4mm. CSDEAY 2887/9927 11/26/2004 VERIFICATION We, ANGELA C. CHUMBLEY and STEPHEN W. CHUMBLEY, make this verification that the facts set forth in the foregoing Answer, are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S.4904 relating to unsworn falsification to authorities. Date'FebruaJry8 ), 2010 ANGELA C. CHUMBL CHUMBLEY CERTIFICATE OF SERVICE I, Geoffrey M. Biringer, being a member in good standing of the Bar of Pennsylvania, hereby certify that I served a true and correct copy of the foregoing Answer, New Matter and Affirmative Defenses on this 8th day of February 2010, by placing same in the United States mail, first class, postage prepaid, addressed as follows: Courtenay R. Dunn, Esquire Phelan, Hallinan, & Schmieg 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadlephia, PA 19103 By. ? - -Geoffrey M. Biringe Attorney for the Defendants 401 E. Louther Street Carlisle, PA 17013 (717)243-9400 Supreme Court ID#18040 a..,.. FILED-O!-Ft Ir '.)F THE PROT") OTARY 2010 MAR -4 PM 2: 49 SUP=-?}, : N;1( ri ilvSYl:?'i?R,A PHELAN HALLINAN & SCHMIEG, LLP By: Joseph P. Schalk, Esquire Identification No. 91656 126 Locust Street Attorney for Plaintiff Harrisburg, PA 17101 (215) 563-7000 BAC Home Loans Servicing, L.P. Court of Common Pleas Plaintiff I Civil Division VS. Cumberland County Stephen W. Chumbley Angela C. Chumbley No. 10-485-Civil Term Defendants PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER Plaintiff, BAC Home Loans Servicing, L.P., by its attorney, Joseph P. Schalk, Esquire, hereby files the within Reply to New Matter of Defendants, Stephen W. Chumbley and Angela C. Chumbley, and in support thereof states as follows: 10. Plaintiff incorporates herein by reference the averments of paragraphs one (1) through nine (9) of its Complaint as if set forth herein at length. 11. Denied. The averments in paragraph eleven (11) contain conclusions of law to which no response is necessary. To the extent that a response is required, the determination as to whether a loan is eligible for modification cannot be done until the necessary documentation has been submitted. While Defendants' loan may eventually be determined to be eligible for consideration under the Home Affordable Modification Program, at this time that determination has not been made and therefore Plaintiff is entitled to proceed with its contractual rights under the mortgage. Strict proof to the contrary is demanded. 12. Denied. The averments in paragraph twelve (12) contain conclusions of law to which no response is necessary. To the extent that a response is required, it is specifically denied that Plaintiff is required to suspend its foreclosure proceedings while the Defendants are being considered for any workout program. Strict proof to the contrary is demanded. 13. Denied as stated. Defendants sent a letter through counsel to the Plaintiff simply stating that they wish to be considered for the Home Affordable Modification Program. Defendants did not send any financial documentation whatsoever that would have allowed Plaintiff to review them for the program. Strict proof to the contrary is demanded. 14. Plaintiff incorporates its responses to paragraphs ten (10) through thirteen (13) of Defendants' New Matter as if set forth herein at length. Further, Plaintiff's incorporates paragraphs one (1) through nine (9) of its Complaint in Mortgage Foreclosure as is set forth herein at length. 15. Denied. The averments in paragraph fifteen (15) contain conclusions of law to which no response is necessary. To the extent that a response is required, it is specifically denied that Plaintiff cannot proceed with its Complaint in Mortgage Foreclosure due to the fact that Defendants' have asked Plaintiff to considered them for the Home Affordable Modification Program. Strict proof to the contrary is demanded. WHEREFORE, Plaintiff respectfully requests that the Court enter judgment in its favor and against Defendant as requested in Plaintiffs Complaint. Respectfully submitted, PHELAN HALLINAN & SCHMIEG, LLP Date: 1 Lwo By VERIFICATION Joseph P. Schalk, Esquire, hereby states that he is the attorney for the Plaintiff in this action, that he is authorized to make this verification, and that the statements made in the foregoing Reply to New Matter are true and correct to the best of his knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications to authorities. PHELAN HALLINAN & SCHMIEG, LLP Date: A42.9? By: 0 A-6 eph halk, Esquire Plainti ff treet , A 17101 (215) 563-7000 PHELAN HALLiNAN & SCHMIEG, LLP By: Joseph P. Schalk, Esquire Identification No. 91656 126 Locust Street Attorney for Plaintiff Harrisburg, PA 17101 (215) 563-7000 BAC Home Loans Servicing, L.P. Court of Common Pleas Plaintiff I Civil Division vs. Cumberland County Stephen W. Chumbley Angela C. Chumbley No. 10-485-Civil Term Defendants CERTIFICATION OF SERVICE I certify that a true and correct copy of Plaintiff's Reply to Defendants' New Matter was sent via first class mail to the person listed below on the date indicated: Geoffrey M. Biringer, Esquire 401 East Louther Street, Suite 103 Carlisle, PA 17013 Date: to By: Jos ph It) Schalk, Esquire Attrney for Plaintiff Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 Attorney For Plaintiff BAC HOME LOANS SERVICING, L.P. Plaintiff vs STEPHEN W. CHUMBLEY ANGELA C. CHUMBLEY Defendant Court of Common Pleas .-a r. . 'n©3 Civil Division CUMBERLAND County No. 10485 CIVIL TERM . .? c. TO THE PROTHONOTARY: PRAECIPE Please withdraw the complaint and mark the action discontinued and ended without prejudice. Date: PHELA HAL SCHMIEG, LLP By: - Lawrence T. Phela Es ., Id. No. 32227 Francis S. Hallinan, sq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 heetal 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 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# 227378 Attorneys for Plaintiff PHELAN HALLINAN & SCHMIEG, LLP By: SHEETAL R. SHAH-JANI, ESQUIRE Identification No. 81760 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 Bac Home Loans Servicing, L.P. 7105 Corporate Drive Plano, TX 75024 VS. Stephen W. Chumbley Angela C. Chumbley 108 A Street Plainfield, PA 17081 Attorney for Plaintiff Court of Common Pleas Civil Division Cumberland County No. 10-485 Civil Term CERTIFICATION OF SERVICE I hereby certify a true and correct copy of the foregoing Praecipe to Discontinue and End without prejudice was served via regular mail on the following parties on the date listed below: Geoffrey M. Biringer, Esquire 401 E. Louther street Midpenn Legal Services Carlisle, PA 17013 DATE: BY heetal R. h -Jani, squire Attorney for P