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HomeMy WebLinkAbout10-1138FILE 2010 EE5 17 Pr; 1: 30 r.? lry IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA CIVIL ACTION - LAW ONEWEST BANK, FSB PLAINTIFF VS KELLY M. KENES DEFENDANT CERTIFICATE OF LOCATION 104 EAST MARBLE STREET MECHANICSBURG, PA 17055 BOROUGH OF MECHANICSBURG PARCEL No: 17-24-0787-164 CIVIL Division Case Number: 16 ^ // 38 Type of Pleading Complaint in Mortgage Foreclosure Code and Classification: Filed on Behalf Of: Plaintiff Counsel of Record: Daniel J. Mancini, Esquire Attorney at Law 201 A Fairview Drive Monaca, PA 15061 (724) 728-4233 By: DANIEL J. MANCINI, ESQ. PA I.D. No. 39353 4 92 .oo "?c,C_ P4 Ck? g?S'3 Daniel Mancini & Associates Daniel J. Mancini, Esq., PA Bar ID: 39353 201 A Fairview Drive Monaca, PA 15061 (724) 728-4233 man cin i I awfirm@attorneydanielmanci ni. com IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB CIVIL Division PLAINTIFF Case Number: VS KELLY M. KENES DEFENDANT MORTGAGE FORECLOSURE CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE NOTICE THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Services, 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Daniel Mancini & Associates Daniel J. Mancini, Esq., PA Bar ID: 39353 201 A Fairview Drive Monaca, PA 15061 (724) 728-4233 mancinilawfirm@attomeydanielmancini.com IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB CIVIL Division PLAINTIFF Case Number: VS KELLY M. KENES DEFENDANT AVISO MORTGAGE FORECLOSURE LE HAN DEMANDADO A LISTED EN LA CORTE. SI DESEA DEFENDERSE CONTRA LAS QUEJAS PERESENTADAS, ES ABSOLUTAMENTE NECESSAPJO QUE LISTED RESPONDA DENTRO DE 20 DIAS DESPUES DE SER SERVIDO CON ESTA DEMANDA Y AVISO. PARA DEFENDERSE ES NECESSAPJO QUE LISTED, 0 SU ABOGADO, REGISTRE CON LA CORTE EN FORMA ESCRITA, EL PUNTO DE VISTA DE USTED Y CUALQUIER OBJECCION ONTRA LAS QUEJAS EN ESTA DEMANDA. RECUERDE: SI LISTED NO REPONDE A ESTA DEMANDA, SE PUEDE PROSEGUIR CON EL PROCESO SIN SU ARTICIPACION. ENTONCES, LA COUTE PUEDE, SIN NOTIFICARIO, DECIDIR A FAVOR DEL DEMANDANTE Y EQUERIRA QUE LISTED CUMPLA CON TODAS LAS PROVISIONES DE ESTA DEMANDA. POR RAZON DE ESA JECISION, ES POSSIBLE QUE LISTED PUEDA PERDER DINERO, PROPIEDAD U OTROS DERECHOS IMPORTANTES. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATEAMENTE. Lawyer Referral Services, 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Daniel Mancini & Associates Daniel J. Mancini, Esq., PA Bar ID: 39353 201 A Fairview Drive Monaca, PA 15061 (724) 728-4233 mancini lawfirm@attorneydanielmancini. com IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB CIVIL Division PLAINTIFF Case Number: VS MORTGAGE FORECLOSURE KELLY M. KENES DEFENDANT IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 ET SEQ. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTI THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS,W IT. Daniel J. Mancini, Esq. Daniel Mancini & Associates Daniel J. Mancini, Esq., PA Bar ID: 39353 201 A Fairview Drive Monaca, PA 15061 (724) 728-4233 mancinilawfirm@attomeydanielmancini.com IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB CIVIL Division PLAINTIFF Case Number: 1 Q 3 w f -?e,?? VS KELLY M. KENES DEFENDANT MORTGAGE FORECLOSURE COMPLAINT IN MORTGAGE FORECLOSURE 1. Plaintiff is: ONEWEST BANK, FSB, whose address is c/o Mancini & Associates, 201 A Fairview Drive, Monaca, PA 15061. 2. Defendant is KELLY M. KENES, whose last known address is 104 EAST MARBLE STREET, MECHANICSBURG, PA 17055. KELLY M. KENES are the mortgagor and the recorded owner of the mortgaged property hereinafter described. 3. On or about, September 26, 2007, KELLY M. KENES borrowed $186,000.00 and in the enforcement of said debt executed and delivered a mortgage upon the premises hereinafter described to the lender MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR INDYMAC BANK, FSB, this mortgage is recorded in the Office of the Recorder of Deeds of CUMBERLAND County at instrument number 200757944. This mortgage is incorporated herein by reference in accordance with Pa. R.C.P. 1019 (g).Your plaintiff, ONEWEST BANK, FSB is now the current owner of said mortgage, and the assignment evidencing this ownership will be sent for recording at a later date. 4. The land subject to the Mortgage is 104 EAST MARBLE STREET, MECHANICSBURG, PA 17055, and is more particularly described in Exhibit "A" which is attached hereof and part of this Complaint. 5. The Mortgage is in default because monthly payments of principal and interest upon said mortgage due February 1, 2009, and each month thereafter are due and unpaid, and by the terms of said Mortgage, upon default in such payments for a period of one month, the entire principal balance and all interest due thereon are collectible forthwith. Unpaid Principal Balance $ 184,309.85 Interest at $44.18 per diem $ 17,957.11 From 01/01/09 to 02/12/10 (based on contract rate of 8.75%) Rec. Corp. Adv. $ 000.00 Escrow Advance $ 3,097.44 Accrued Late Charges $ 897.14 Bad Check Fees $ 00.00 Attorney's Fee Total $ 9,215.50 $ 215,477.04 ** Together with interest at the per diem rate noted above after February 1, 2009 and other charges and costs to date of Sheriffs Sale. The Attorney's Fees set forth above are in conformity with the Mortgage documents and Pennsylvania law, and will be collected in the event of a third party purchaser at Sheriff's Sale. If the Mortgage is reinstated prior to the sale, reasonable attorney's fees will be charged in accordance with the reduction provisions of Act 6, if applicable, or that are actually incurred by Plaintiff. 6. No judgment has been entered upon said Mortgage in any jurisdiction. 7. The combined notice specified by the Pennsylvania Homeowner's Emergency Mortgage Assistance Program, Act 91 or 1983 and Notice of Intention to Foreclose under Act 6 of 1974 has been sent to each defendant on May 9, 2009, via certified and regular mail, in accordance with the requirements of those acts. 8. Defendant is not a member of the Armed Forces of the United States of America, nor engaged in any way which would bring them within the Soldiers and Sailors Relief Act of 1940, as amended. 9. The Defendant has either failed to meet the time limitations as set forth under the Combined Act 6/91 Notice or have been determined by the Pennsylvania Housing Finance Agency not to qualify for Mortgage Assistance. WHEREFORE, Plaintiff demands judgment in mortgage foreclosure `IN REM' for the aforementioned total amount due together with interest at the rate of 8.75% ($44.18 per diem), together with other charges and costs including escrow advances incidental thereto to the date of Sheriff's Sale and for foreclosure and sale of the property within described. - ?7? Daniel J. Mancini, Esq. Attorney Bar: PA 39353 • FIRST AMERICAN TITLE INSURANCE CG. V, Commitment Number. KENES215-07 SCHEDULE C PROPERTY DESCRIPTION The land referred to in this Commitment is described as follows: ALL THAT CERTAIN plot of ground situate on the South side of East Marble Street at comer of land now or late of Abner M. Jacobs and Margaret L. Jacobs. his Yvite; thence along the center nine of said East Marble Street, North 80 degrees East seventy-five (75) feet to a point; thence along land formerly of Yicbr L. C. Hawked, and now or formerly of Paul T. Shearer and wife. South 10 degrees East, one hundred sbdy--tW" and seventy-five hundredths (163.75) feet to an iron pin on the northern One of Wild Crwry Alley, thenoe along the northern line of said Alley. South 80 degrees West seventy-five (75) feet to an iron pin at comer of land now or form" of Abner M_ Jacobs arb Margaret L. Jacobs, his wrfe; thence along said land now or formerly of Abner M. Jacobs and Margaret L . Jacobs. his wife, North 10 degrees West, one hundred sixty-three and seventy-five hundredths (163.75) feet to a point in the center One of Fast Marble Street, the Place of BEGINNING. HAVING thereon erected a brick dwelling house numbered as 104 East Marble Street ALTA Commftmt Srha&(e C (KENES21&a?.PFOMENE921"711) Daniel Mancini & Associates Daniel J. Mancini, Esq., PA Bar ID: 39353 201 A Fairview Drive Monaca, PA 15061 (724) 728-4233 mancinilawfinn@attomeydanielmancini.com IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB CIVIL Division PLAINTIFF Case Number: VS MORTGAGE FORECLOSURE KELLY M. KENES DEFENDANT VERIFICATION Daniel J. Mancini, Esq., hereby states that he is the attorney for Plaintiff in this matter, that He is authorized to take this Verification, and that the statements made in the foregoing Civil Action in Mortgage Foreclosure 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. Sec. 4904 relating to unsworn falsification to authorities. Further, counsel submits that Plaintiff is outside the court's jurisdiction and verification cannot be obtained with the time allowed for filing the pleading. It is counsel's intention to substitute a verification from Plaintiff. Dated this 12TH Day of February, 2010 i' Daniel J. Mancini, Esq. Attorney Bar: Pa 39353 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Edward L Schorpp Solicitor ?y71?159P 41t Midi ??,, , ? T?"= r. ?'d t ?Y }:d 2010 FEB 24 P" 2: 23 F',CCF'-r _-E -RIFF d rr 'mod d ay_,?? Onewest Bank FSB vs. Case Number Kelly M. Kenes 2010-1138 SHERIFF'S RETURN OF SERVICE 02/22/2010 07:01 PM - Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on February 22 2010 at 1901 hours, he served a true copy of the within Complaint in Mortgage Foreclosure, upon the within named defendant, to wit: Kelly M. Kenes, by making known unto herself personally, at 104 East Marble Street, Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to her personally the said true and correct copy of the same. DEN WS FRY, DEP TY SHERIFF COST: $37.00 February 23, 2010 SO AN R R ANDERSON, SHERIFF tc! Count,,Suite Sheriff. Te;ecrsoR. tnI. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB CIVIL DIVISION Plaintiff n C=a V. CASE NO.: 10- 1138 6 Kelly M. Kenes PRELIMINARY OBJECTION$$ -- Defendant JURY TRIAL DEMANDED .c. •d ? PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT NOW COMES, Defendant, Kelly M. Kenes, (hereinafter, "Kenes") pro se, who files these Preliminary Objections to Plaintiff, ONEWEST Bank, FSB's Complaint in Mortgage Foreclosure, pursuant to the Pennsylvania Rules of Civil Procedure (Pa.R.C.P.) and in support thereof, Kenes states as follows: Plaintiff is not the Real Party in Interest and Lacks Standing to bring his Action and this court lacks jurisdiction to hear the matter as presented 1. Plaintiff, ONEWEST Bank, FSB, is not the Real Party in Interest, and Lacks Standing to bring this Action against Kenes, and accordingly, this Court lacks Jurisdiction to hear this matter as presented. 2. Plaintiff fails to attach any evidence whatsoever, indicative of a valid mortgage document between the alleged parties or the promissory note upon which it must rely. 3. Kenes avers that this alleged Plaintiff has neither, the original, genuine promissory note or mortgage note in their possession, custody or control; Kenes believes that, these original, genuine "notes" simply do not exist. 4. Moreover, Plaintiff alleges that on or about May 9, 2009 Kenes received via certified and regular mail, an Act 91 Notice; Kenes avers that she has no knowledge of having ever received such notice, certified or otherwise, as alleged to have occurred by Plaintiff. 5. Kenes thus challenges the jurisdiction of this court and the party Plaintiff, attempting to assert it. 6. Wherefore, Plaintiff's Complaint should be dismissed for lack of jurisdiction, pursuant to Pa.R.C.P. 1028(a) (1). Plaintiffs Complaint Fails to Conform to Law or Rule of Court 7. Kenes hereby incorporates paragraphs one (1) through six (6) as if they are set forth at length herein. 8. Plaintiff's Complaint is defective, as it fails to state whether the alleged "agreement" is oral or written, pursuant to Pa.R.C.P.1019(h). 9. Plaintiffs Complaint is defective, as it fails to attach any alleged agreement or purported assignments, or evidence of any document(s) of Notice(s) or, moreover, those generally purported, involving the calculation(s) of damages alleged, that the Complaint otherwise relies upon, pursuant to Pa.R.C.P. 1019(1). 10. Wherefore, Plaintiffs Complaint should be dismissed for failure to Conform to Law or Rule of Court, pursuant to Pa.R.C.P. 1028(a) (2). Plaintiff Fails to Plead with Specifici 11. Kenes hereby incorporates paragraphs one (1) through ten (10) as if they are set forth at length, herein. 12. Plaintiff attempts, among other things, to rely on generalizations of time, place and special damage, without any supporting documentation, or specific calculation(s), including, but not limited to, the absurd notation of over nine thousand dollars in attorney fees being assessed on a dearth Complaint. 13. Plaintiffs Complaint is defective, as it fails to state with specificity. averments of time, place and special damage, pursuant to Pa.R.C.P. 1019(f). 14. Wherefore, Plaintiffs Complaint should be dismissed for failure to Plead with Specificity, pursuant to Pa.R.C.P. 1028(a) (3) and/or Pa.R.C.P. 1028(a)(4). Plaintiffs Complaint Fails to Conform to Law or Rule of Court 15. Kenes hereby incorporates paragraphs one (1) through fourteen (14) as if they are set forth at length, herein. 16. Plaintiffs Complaint, is verified by an attorney. 17. Pa.R.Civ.P. 1002 which references "Authority of Attorney", it states, "Any act other than verification required or authorized by this chapter to be done by a party may be done by the party's attorney" (emphasis added) 18. Plaintiffs verification violates Pa.R.C.P.1002. 19. Notwithstanding the clear and unambiguous provisions delineated under Pa.R.C.P. 100 2, Plaintiffs counsel improperly appears to assert its authority to verify Plaintiffs Complaint, under Pa.R.C.P.1024(c). 20. Plaintiffs counsel avers that "...counsel submits that Plaintiff is outside the court's jurisdiction and verification cannot be obtained within the time allowed for filing the pleading." 21. This is at best, a disingenuous statement: It is Plaintiff and/or counsel who initiated the instant action, and therefore, time allowed did not start until Plaintiff, through counsel commenced the instant matter. 22. Further, in this modern age of communication, it appears incredulous to suggest that, a verification could not be obtained from Plaintiff, prior to commencement of their Complaint. 23. Additionally, counsel for Plaintiff fails to set forth the source of their information that they rely on, or as to specifically, what counsel has knowledge of as opposed to what they are relying on, in forming their belief. 24. Therefore, Kenes avers that in addition to the immutable defect of verification as found under Pa.R.C.P.1002, Plaintiffs verification also violates Pa.R.C.P. 1024(c). 25. Wherefore, Plaintiffs Complaint should be dismissed, pursuant to Pa.R.C.P. 1028(a)(2), for failure to attach a proper verification. WHEREFORE, Defendant Kelly M. Kenes respectfully moves upon this Court to Dismiss Plaintiff, ONEWEST Bank, FSB's Complaint in Mortgage Foreclosure, for failure to prove said Plaintiff is the Real Party in Interest and/or that, Plaintiff has Standing to commence any action against Kenes, or that this court is properly vested with jurisdiction, pursuant to Pa.R.C.P. 1028(a)(1); and, for Plaintiffs failure to Conform to Law or Rule of Court, pursuant to Pa.R.C.P. 1028(a) (2); and for Plaintiffs failure to plead with specificity, pursuant to Pa.R.C.P.1028(a)(3) and/or Pa.R.C.P.1028(a)(4),; or for any and all reasons this Court deems just and proper. Respectfully Submitted, Kell . Kenes 104 E. Marble Street Mechanicsburg, Pa. 17055 (717) 968-2662 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB Plaintiff V. Kelly M. Kenes Defendant CIVIL DIVISION CASE NO.: 10-1138 PRELIMINARY OBJECTIONS JURY TRIAL DEMANDED VERIFICATION I, Kelly M. Kenes, Defendant in the above-captioned matter, do hereby aver that the statements made in Defendant's Preliminary Objections to Plaintiff ONEWEST Bank FSB's Complaint in Mortgage Foreclosure, are true and correct to the best of her knowledge, information and belief. The undersigned acknowledges that this statement is made subject to 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. OV) Date: March 15, 2010 By: , Kelly . Kenes IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB Plaintiff CIVIL DIVISION V. Kelly M. Kenes Defendant CASE NO.: 10-1138 PRELIMINARY OBJECTIONS JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Kelly M. Kenes, Defendant in the above-captioned matter, do hereby certify that on March 15, 2010 I caused to be served, a true and correct copy of Defendant's Preliminary Objections to Plaintiffs Complaint, by first class mail, postage prepaid as follows: Daniel J. Mancini Esq. Daniel J. Mancini & Associates 201 A Fairview Drive Monaca, Pa. 15061 (atty. For Plaintiff, ONEWEST Bank, FSB) By: Kelly MYKenes 104 E. Marble Street Mechanicsburg, Pa. 17055 (717) 968-2662 Daniel Mancini & Associates Daniel J. Mancini, Esq., ~~' r(ti;s= FILED- ~ ~ , ,,, PA Bar ID: 39353 ~~~ •~~ ~' ±,11`~-;t e~~;~.a~~` ~~ 161 Linko Avenue Aliquippa, PA 15001 (724)203-1201 2~1~ ,~~~ 3d F'~~ 12~ ~~ mancini lawfirm@comcast. net IN THE COURT OF COMMON PLEAS, CU~IB~~~~~~TY PENNSYLVANIA ONEWEST BANK, FSB CNIL Division PLAINTIFF Case Number: 10-1138 Civil Term VS KELLY M. KENES DEFENDANT MORTGAGE FORECLOSURE CERTIFICATION OF SERVICE I hereby certify that true and correct copies of Plaintiff's Memorandum of Law in Support of Plaintiff s Order to Strike Defendant's Preliminary Objections, were served by regular mail on Defendants on the date listed below: Kelly M. Kenes 104 East Marble St. Mechanicsburg, PA 170: June 28, 2010 ~ ~ i ~ T_I ~ -p 1/ ~ ^P ~ In the Court of Common Pleas of Cumberland County, Pennsylvania No. / O - / / 3 ~ Civi1~I _ ~ v~~ x-13 (~ ~(~ , ~~ S~- ~ ~ ~-~ IIG ~~~~~~~~~ To Prothonotary 19 Attorney for Plaintiff No. ~C~ _ /r ~ ~ Term, 19 ~ ~P ~'E'S -~ ~~~ vs. p„ ~, I^ ,, ,~~ ~~~, ,; ~. ~-a~~~~ '' "~ ~^^~~~6 Lt ~.;. ' .~~~. Inc ~ ~ ~+1 U' ` , ~~'~ 'V~'C~ S PRAECIPE Filed 19 Atty. ONEWEST BANK, FSB, : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA NO 10-113 8 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE OLER and EBERT, JJ. ORDER OF COURT AND NOW, this 7~` day of July, 2010, upon consideration of Defendant's v. CIVIL ACTION KELLY M. KENES, Defendant Preliminary Objections to Plaintiff's Complaint, and pursuant to an agreement of counsel at oral argument on July 7, 2010, based upon the filing of an amended complaint by Plaintiff, the preliminary objections are deemed mooted by the filing of the amended complaint and Defendant is afforded a period of twenty days from the date of this order to file preliminary objections or an answer to Plaintiff's amended complaint. DEFENDANT'S PENDING motion for "Enlargement of Time To File Preliminary Objections to Plaintiff's Amended Complaint in Mortgage Foreclosure," filed May 17, 2010, is deemed moot by virtue of this order. -~ Daniel J. Mancini, Esq. 201 A Fairview Drive Monaca, PA 15061 / Attorney for Plaintiff Bart Wendell Holmes, Esq. 4311 N. 6~' Street Harrisburg, PA 17110-1614 Attorney for Defendant rn.eZl BY THE COURT, f 1 r` '"~ J:~Wesley Olen, Jr., J. ~j c~ C' ^' ~ =:1 ~-- -:~ ;_ ,_ c~ _ -~ t_- __~, ~-_ .. , ~ L . Cam: ~~~ --c ?l$/ca ~~ .~ F~L ,,.I ~, , Bart W. Holmes, Esquire PA ID No.: 85071 `d 20 I O ,~ L ~ ] `'' ' ~ ` 4311 North 6 Street f~lYl 8' ail Harrisburg, PA 17110 CuP,~ , r ~,' )I~'V ~ 717-802 5756 . S r_, .,,,I._rr ..,~~.1 717-221-9400 (faz) bartwendellhohnes@verizon.net ONEWEST BANK, FSB IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL DIVISION - NO.: 10-1138 KELLY M. KENES, Defendant MORTGAGE FORECLOSURE DEFENDANT KELLY M. KENES PRELIlVIINARY OBJECTIONS TO PLAINTIFF' S AMENDED COMPLAINT And now comes Ms. Kelly M. Kenes, by and through her counsel, Bart W. Holmes, Esquire, and files the following Preliminary Objections to Defendant OneWest Bank, FSB's Amended Complaint. These Preliminary Objections, in the nature of a Demur, assert Plaintiff lacks standing because it has not averred that it is the real party in interest, and, in the alternative, has not set forth a viable cause of action under the Uniform Commercial Code because it has not averred that it is a party entitled to enforce the subject Note. I. Backaroond• A. Nature of the Action and History: On APRII, 26, 2010 Plaintiff filed Amended Complaint in Mortgage Foreclosure against Defendant. On May 17, 2010, Defendant sends a letter requesting debt validation and Demand for Presentment of the Notes for inspection for authenticating, alterations. On MAY 17, 2010 Defendant moves for a sixty (60) day Enlazgement of Time to complete an Administrative Remedy. The Honorable Judge Oler, Jr. issues a MAY 19, 2010 Rule to show Cause giving Plaintiff fourteen (14) days to show cause why the relief requested should not be granted. Plaintiff responds to Defendants correspondence on MAY 25, 2010 but does not agree to presentment of original note. On MAY 26, 2010 Plaintiff's files Answer to Defendants Motion for Enlazgement of Time. In JUNE 2010, Defendant sends a second request for validation of debt and Demand for Presentment of the Notes. On JUNE 28, 2010 Plaintiff files a Memorandum of Law Order to strike Defendant's Preliminary Objections. Plaintiff again sends correspondence attempting to validate the debt which states, in part: "the original promissory note and deed of trust/mortgage -are not available for inspection." On JULY 6, 2010 Defendant files a Memorandum of Law in Support of Defendant's Right to Presentment of the Note. On JULY 7, 2010, the Honorable Judges Ebert and Oler, Jr., after a hearing in open court, issue the order requiring Defendant to file an Answer to the Amended Complaint or Preliminary Objection within 20 days. B. The Amended Comulaint• Plaintiffs Amended Complaint sets forth the Lender as Indymac Bank, FSB, with Mortgage Electronic Registration Systems, Inc. as its Nominee (Amended Complaint, Averment No. 3). Moreover, the Amended Complaint avers that One West Bank, FSB, was the true owner of the Note and Mortgage at the time the foreclosure action was filed (Amended Complaint, Averment No. 3). The Amended Complaint further requests "... judgment in foreclosure "In Rem..." (Amended Complaint, demand clause). Plaintiff s Exhibit "B," Assignment of Mortgage, sets forth a purported assignment of IndyMac Bank, FSB's interests in the subject Mortgage and Note to OneWest Bank, FSB, through IndyMac Bank, FSB's Nominee, Mortgage Electronic Registration Systems, Inc. (Plaintiff s Exhibit B). Plaintiff s Exhibit A contains an apparent copy of the original Note that expressly states, "Pay to the Order of _ [Blank Line]_ Without Recourse IndyMac Bank, FSB, and is apparently signed by IndyMac Vice President Vincent Dombrowski. II. Leval Argument: A. The subject Mortgage cannot be enforced absent enforceability of the subject Note. In Longan v. Carpenter, 83 U.S. 271, 274 (1872), the Supreme Court opined: "[t]he note and the mortgage are inseparable; the former as essential, the latter an incident... [a]n assignment of the note carries the mortgage with it, while assignment of the latter is a nullity." The subject Mortgage, here, cannot be enforced absent enforceability of the subject Note. B. Plaintiff has not pled sufficiently to show it is entitled to enforce the subject Note Plaintii~s Amended Complaint has not averred sufficient information to show Plaintiffs entitlement to enforce the subject Note, and thus it cannot enforce the Note or the Mortgage. Under 13 Pa.C.S. § 3301. Person entitled to enforce instrument, "'A person entitled to enforce' an instrument means: (1) the holder of the instrument; (2) a nonholder in possession of the instrument who has the rights of a holder;..." 1. Plaintiff's Amended Complaint avers that Plaintiff "OneWest Bank, FSB was the true owner of the Note and Mortgage at the time the foreclosure action was filed." (Amended Complaint, Averment 3). 2. Plaintiff does not aver that it is in possession of the subject Note. 3. Plaintiff does not aver that it is a nonholder of the subject Note who has the rights of a holder. Moreover, the subject note does not set forth that it is endorsed to Plaintiff. 4. The subject Note itself shows no indication of transfer. It provides: "Pay to the order of [blank] Without recourse IndyMac Bank, FSB (signed) Vincent Dombrowski Vice President." 5. Thus, the entity in possession of the subject Note appears to be IndyMac Bank, FSB, and not the Plaintiff. Therefore, Plaintiff has not pled that it is the holder or nonholder of the subject Note who has the rights of a holder, and therefore is not the party entitled to enforce the subject Note. C. Plaintiff has not averred a transaction by which they acquired possession of the subject Note. 1. Plaintiff avers that it is the true owner of the Note. 2. Plaintiff s Exhibit B is a document that purports to be an Assignment of Mortgage, and includes the words, "... together with all the indebtedness currently due and to become due under the terms of any promissory note ..." 3. The purported Assignment of Mortgage in Plaintiff s Exhibit B is between Mortgage Electronic Registration Systems, Inc., as Nominee for IndyMac Bank, FSB, and OneWest Bank, FSB. 4. However, nowhere in the purported Assignment of Mortgage does it set forth Mortgage Electronic Registration Systems, Inc.'s authority to assign the subject Note. 5. In In re. Wilhelm. 407 B.R 392 (2009xdecided under Idaho's U.C.C. Article 3), the Court found that it could not presume that the Mortgage Electronic Registration Systems, Inc. assignment of a note was valid without proof of the authority to assign it in the first instance. Therefore, since Plaintiff has not averred a transaction by which they acquired possession of the subject Note, or a valid assignment of the subject Note, it has not averred facts sufficient to show it is entitled to enforce the subject Note. D. Jurisdiction requires a real party in interest. 1. In Lore v. SoboIevitch. 675 A.2d 805 (Pa.Commw. 1996), the Court opined: "The core concept of standing is that a person who is not adversely affected in any way by the matter he or she seeks to challenge is not `aggrieved' thereby and, consequently, is not an appropriate party to obtain judicial resolution of the challenge (citing to Wm. Penn Parking_Gara e v. City of Pittsburgh: 464 Pa. 168 (1975)). 2. As set forth above, Plaintiffhas not averred sufficient information to establish that it is a real party in interest because it has not averred that it has an interest in the subject Note, possesses the subject Note, is entitled to enforce the subject Note, or has a valid assignment of the subject Note. On the contrary, based on Plaintiff's own Exhibit A, the actual entity entitled to enforce the subject Note is not a party to this action (apparently, IndyMac Bank, FSB). Therefore, the Court cannot exercise jurisdiction over this case because One West Bank, FSB has not averred that it is a real party in interest. WHEREFORE, Defendant Kelly M. Kenes requests that this Honorable Court sustain her Preliminary Objections, and dismiss Plaintiff's action with prejudice, finding lack of jurisdiction due to Plaintiff having failed to aver that it is a real party in interest, or in the alternative, that Plaintiff has not averred a viable cause of action on the subject Mortgage and Note, because Plaintiff has failed to aver that it is entitled to enforce the subject Note, and therefore cannot enforce the subject Mortgage. Respectfully submitted, Date: July 27, 2010 Bart W. Holdies, Esquire PA ID No.: 85071 4311 North 6~ Street Harrisburg, PA 17110 717-802-5756 717-221-9400 (faz) bartwendellholmes@verizon.net CERTIFICATE OF SERVICE I, Bart W. Holmes, Esquire, certify that I have served a true and correct copy of these Preliminary Objections on counsel for Plaintiff, by United States Mail, pre-paid, at: Mr. Daniel J. Mancini, Esquire 201 A Fairview Drive Monaca, PA 15061 Date: July 27, 2010 Bart W. Holmes, Esq~ire" '' PA ID No.: 85071 4311 North 6`~ Street Harrisburg, PA 17110 717-802-5756 717-221-9400 (faz) bartwendellholmes@verizon.net PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter fore nKA Argument Court.) r :r- CAPTION OF CASE - - (entire caption must be stated in full) tJ vs. - y No. ) t Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendants demurrer to complaint, etc.): ©rn C t 2. Identify all counsel who will argue cases: (a) for plaintiffs: -T) (16Ad T, 6 (t f6 ??? ?(1'?on ? ; ?? ? soto? (Name and Address) N hen W04 ID wes-t. St. a 1 i ?lr ??A 1-i d ? 3 (b) for defendants. ?>???-? ??? ?ulm.?s.?sa x311 ?IaC? l.r?" St ?(?rr?sbu?c?,? ?? ? ?o (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Date: %- t -k b Signature -boas i e1 z - rYLo.? Print your name ?lain ? Attomey for INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADWNISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument 4. If argument is continued new brWs must be filed with the COURT ADWHISTRATOR (not the Prothonotary) after the case is re0ew. Daniel Mancini & Associates Daniel J. Mancini, Esq., PA Bar ID: 39353 161 Linko Avenue Aliquippa, PA 15001 (724)203-1201 mancinilaw6rm@comcast.net IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB CIVIL Division PLAINTIFF Case Number: 10-1138 Civil Term VS MORTGAGE FORECLOSURE KELLY M. KENES DEFENDANT CERTIFICATION OF SERVICE I hereby certify that true and correct copies of Plaintiff's Praecipe For Argument, were served by regular mail on Defendants on the date listed below: Bart W. Holmes, Esq. 4311 North 6t' Street Harrisburg, PA 17110 August 11, 2010 N IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB Plaintiff V. Kelly M. Kenes Defendant CIVIL DIVISION CASE NO.: 10- 1138 AMENDED PRELIMINARY OBJECTIONS JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Daniel J. Mancini Esq. Daniel J. Mancini & Associates 201 A Fairview Drive Monaca, Pa. 15061 (atty. For Plaintiff, ONEWEST Bank, FSB ON BEHALF OF THE ABOVE-CAPTIONED PLAINTIFF: YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED, DEFENDANT'S AMENDED PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT, WITHIN TWENTY (20) DAYS FROM DATE OF SERVICE HEREOF, OR A JUDGMENT MAY BE ENTERED AGAINST YOU. BY: DATE: AUGUST 19, 2010 Bart W. Holmes, Esq. Bart W. Holmes, Esquire PA ID No.: 85071 d g f M 3 1) 4311 North 6 h Street Harrisburg, PA 17110 717-802-5756 717-221-9400 (fax) ONEWEST BANK, FSB Plaintiff V. Kelly M. Kenes Defendant CIVIL DIVISION CASE NO.: 10- 1138 PRELIMINARY OBJECTIONS JURY TRIAL DEMANDED DEFENDANT'S AMENDED PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT NOW COMES, Defendant, Kelly M. Kenes, (hereinafter, "Kenes") by and through her counsel, Bart W. Holmes who files these Amended Preliminary Objections to Plaintiff, ONEWEST Bank, FSB's Amended Complaint in Mortgage Foreclosure, that, pursuant to the Pennsylvania Rules of Civil Procedure (Pa.R.C.P.(a)(1)(2)(3)(4)(7)(8) and (b)). In support thereof, Kenes states as follows: BACKGROUND 1. On or about February, 2010, Plaintiff filed a Complaint in Mortgage Foreclosure, and subsequently caused a copy of the Complaint, by the Cumberland County sheriff's office, on Kenes. 2. On or about March 15, 2010 Kenes filed Preliminary Objections to Plaintiff's Complaint, and, thereafter, timely filed a Brief in Support of her Preliminary Objections. 3. Subsequently, Plaintiff filed a Praecipe to list Kenes Preliminary Objections with this Court, that was scheduled for July 7, 2010. 4. On or about April 26, 2010 Plaintiff, ONEWEST BANK, FSB, by and through its counsel, Mancini & Associates, filed an Amended Complaint in Mortgage Foreclosure against Kenes. Attached to the Amended Complaint was a Notice offering Kenes Validation of the alleged debt. 5. On or about May 17, 2010, Kenes sent written request to Plaintiff, through their counsel, with further demand for Presentment of both the original Promissory and Mortgage Notes, seeking specifically, time(s) and place(s) for Kenes to physically examine the Note(s) for authenticity. 6. On or about May 17, 2010, Kenes filed a Motion with this Court for an Enlargement of Time of sixty (60) days to file her Preliminary Objections to Plaintiff's Amended Complaint, hoping to complete what was, essentially, an Administrative Remedy. Kenes hereby incorporates by reference, pursuant to Pa.R.C.P. 1019(g), Kenes Motion for Enlargement with exhibits, as if it fully set forth at length, herein. 7. On or about May 19, 2010, This Court issued a Rule to Show Cause upon the Plaintiff, giving Plaintiff fourteen (14) days to show cause, why the relief requested by Kenes should not be granted. 8. On or about May 25, 2010 Plaintiff, through counsel, filed a response to Kenes' request for Validation and Demand for Presentment of the Notes. Attached hereto, and marked as Exhibit "A" is Plaintiff's initial response letter. 9. On or about May 26, 2010 Plaintiff filed a Motion in Opposition to Kenes Motion for Enlargement of Time. 10. On or about June 12, 2010 Kenes sent a second request for Validation of the alleged debt, together with a second Demand for Presentment of the Notes. Attached hereto, and marked as Exhibit B" is Kenes second demand letter. 11. On or about June 30, 2010, plaintiff, through counsel, sends a second, albeit, poor attempt to validate, and, in specifically addressing Kenes demand for Presentment, states in pertinent part that, " the original promissory note and deed of trust/mortgage are not available for inspection." Attached hereto, and marked as Exhibit "C", is Plaintiffs response letter to Kenes second demand. 12. On or about July 6, 2010, Kenes files a Memorandum of law in Support of Kenes right to Presentment. Kenes hereby incorporates by reference, pursuant to Pa.R.C.P. 1019(g) Kenes Memorandum, as if it is fully set forth at length, herein. 13. On or about July 7, 2010, the undersign counsel appeared on behalf of Kenes before this Court, with Judges Oler and Ebert, presiding. 14. After briefly entertaining issues relative to Kenes filing(s), this Court, cognizant that the only issue before them was Plaintiffs Praecipe for Argument on Kenes initial Preliminary Objections, and, having noted, that Plaintiff had subsequently Amended their Complaint thereto, this Court adjourned hearing any further issues (that were not directly before the Court) and directed Kenes to file Preliminary Objections to Plaintiffs Amended Complaint within twenty (20) days. 15. On or about July 27, 2010 Kenes, through counsel, filed Preliminary Objections to Plaintiff's Amended Complaint in Mortgage Foreclosure. 16. After careful consideration and review of Kenes Preliminary Objections and prior to any response thereto, by Plaintiffs counsel, Kenes now files these Amended Preliminary Objections to Plaintiff's Amended Complaint as to more fully and succinctly set forth each and every ground of defense to Plaintiffs Amended Complaint, seriatim. Plaintiffs Amended Complaint should be Dismissed for failure to exercise or exhaust a statutory remedy and/or fulL complete and adequate non-statutory remedy at law, pursuant to Pa R.C P 1028(a)(7)(8) or, in the alternative, for this Court's lack of Subject Matter Jurisdiction over the case, Pursuant to Pa.R.C.P.1028(a)(1) 17. Kenes hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length, herein. 18. Plaintiff s Amended Complaint in Mortgage Foreclosure should be dismissed for failure to fully complete and exhaust non-statutory remedy at law, and/or failure to fully complete and exhaust a non-statutory remedy, Pursuant to Pa.R.C.P. 1028(a)(7)(8) or, in the alternative, for this Court's lack of Subject Matter Jurisdiction over the case. 19. On or about April 26, 2010, Plaintiff filed an Amended Complaint in Mortgage Foreclosure, which had attached thereto, Notice for Validation of the [alleged] debt. 20. Consequently, Plaintiff initiated a statutorily enacted Administrative Remedy, under 15 U.S.C. § 1692 et. seq., as further governed by statute, under 13 Pa.C.S. § 1101, et. seq. 21.On or about May 17, 2010, Kenes formally responded to Plaintiff's Notice, with request for a full and complete Validation of the [alleged] debt, together with a M Demand for Presentment of the Original, "wet Ink" Promissory and Mortgage notes, for examination and expert authentication. 22. Concurrently, Kenes filed with this Court, a Motion for Enlargement of Time to file her Preliminary Objections to Plaintiff's Amended Complaint, and attached thereto, both Plaintiff s Notice for Validation and Kenes written request/demand thereupon. 23. This Court, as signed by the Honorable J. Wesley Oler, on or about May 19, 2010, issued a Rule to Show Cause upon the Plaintiff to show cause as to why Kenes should not be granted the relief she requested. 24. Upon information and belief of Kenes, this Court clearly recognized that Plaintiff had put forth an Administrative Remedy that precedes Plaintiffs ability to file a Complaint, absent Plaintiffs full compliance thereto. 25. Accordingly, Kenes formally sought and yet seeks Plaintiffs compliance, that, in the interest of justice and for the sake of judicial economy, is incumbent upon the Plaintiff to properly fulfill. 26. Kenes is seeking Presentment of the alleged original Promissory and Mortgage Notes for examination to expertly determine, assuming Plaintiff has and/or ever had possession thereof, for their authenticity. 27. Kenes avers, she is entitled to Presentment of the original notes under 13 Pa.C.S. 3501 to determine: (A) if there is an actual debt owed; (B) to whom, if anyone, this [alleged] debt may be owed to as true "holder"; and, (C) whether the instrument is properly indorsed. Presentment is a condition precedent to Plaintiff filing any claim in reliance thereon. 28. Kenes believes that 13 Pa.C.S. 3301 defines the person entitled to enforce the instrument. 29. Without Presentment, there can be no dishonor, which ipso facto, without dishonor, there exists no evidence that a default has occurred, (as otherwise alleged by Plaintiff) which consequently, there can be no action undertaken by Plaintiff upon which they can viably state a claim. 30. In two (2) separate correspondences, Plaintiff has denied Kenes the right to Presentment; the latter (generic form) clearly stating that, " the original promissory note and deed of trust/mortgage are not available for inspection." (emphasis added) 31. Kenes avers that in (the lack) of consideration afforded Kenes by Plaintiff s written responses to her warranted demand(s) to examine and authenticate the original Note(s), Plaintiff is potentially in violation of Pa.R.C.P. 1023.1(c)(1). in that, Plaintiff s claims are being presented for an improper purpose; that, is clearly meant to harass and cause unnecessary delay as well as needless increase in the overall cost of this litigation. 32. Kenes avers, that in addition thereto, absent Plaintiffs Presentment, Plaintiff violates Pa.R.C.P. 1023.1(c)(2) and (3), as the claims proffered by Plaintiff are not warranted; and, the factual allegations contained therein, having been properly challenged, lack evidentiary support as "Best Evidence" as found under Pa.R.E. 1002; 33. Kenes avers, Plaintiffs refusal to produce the requisite notes at issue, stating that they are not available, is tantamount to a tacit admission by Plaintiff, that they are not in possession of the original notes they seek judgment on; and accordingly, it becomes clear that absent actual possession and production of the "notes", Plaintiff's otherwise specious claims must fail as a matter of law. 34. Kenes has diligently sought to save unnecessary and needless costs of litigation and resources of all parties and this Court by seeking to have Plaintiff produce the alleged original notes. 35. Plaintiff has failed to fully exercise or exhaust statutory remedies imposed by law, in having only first put Kenes on Notice, as otherwise couched into their Amended Complaint, and then refusing to fully exhaust the very remedy they had so dilatorily set forth, by denying Kenes the very evidence needed. 36. Actions in rem, such as Plaintiff's, contravene laws in Equity, and of Merchant, as it `tempts sidestep by artifice, governing provisions of Statutory Construction, specifically enumerated under the Uniform Commercial Code (UCC), and, as adopted by Pennsylvania, under Title 13 Pa. C.S. § 1101 et. seq. It is only by strict governance of the "essential" (promissory note), as statutorily constructed, does the "incident" (mortgage note) dare move. 37. It is clearly in the interests of justice, and to the benefit of this Court for sake of judicial economy, and as to all parties and this Court, to avoid needless cost, litigation, and for the overall preservation of resources, that this Court, in consideration of the aforesaid, direct Plaintiff to forthwith produce, the original Promissory and Mortgage notes, for full and complete examination, as to expertly determine the authenticity of the "Notes". WHEREFORE, Kenes respectfully requests that this Honorable Court dismiss Plaintiff's Amended Complaint in Mortgage Foreclosure, for failure to exhaust a statutory remedy and/or failure to Administratively complete an adequate non-statutory remedy at law; and/or, lack of Jurisdiction of the Subject Matter over the case; or in the alternative, direct Plaintiff to produce, for expert examination and authentication, the alleged original "wet ink" Promissory and Mortgage Note(s), and, to Stay all proceedings pending the full and complete resolution thereof; and further, to provide any and all other recourse of relief Kenes that this Court may deem just and proper. Plaintiff is not the Real Party in Interest, and. Lacks Standina to bring this Amended Action and/or, this Court lacks jurisdiction to hear the matter as presented 38. Kenes hereby incorporates each and every of the preceding paragraphs as if all are fully set at length, herein. 39. Plaintiff, ONEWEST Bank, FSB, is not the Real Party in Interest, and Lacks Standing to bring their Amended Action against Kenes, and accordingly, this Court lacks Jurisdiction to hear this matter as presented. 40. Standing is a threshold issue that must be determined, not by the court, but by the parry asserting it. 41. Likewise, Plaintiff is not the Real Party in Interest, as defined under Pa.R.C.P. 2002. 42. The foundation of Kenes averment hereto is five-fold: a. Plaintiff is not in possession of the alleged original promissory and mortgage notes; b. Failure to Make Presentment/Negotiable Instruments c. Plaintiff has failed, as a prerequisite to filing any Complaint, to provide Kenes with an Act 91 notice; d. Failed to adhere to the contractual requirements of the alleged agreement for Notice of Default, as relied upon by Plaintiff in the copy of the purported mortgage note; and, e. Purported Sale and Assignments/Exhibits A: Plaintiff is not in possession of the original promissory and mortgage notes 43. Kenes avers that this Plaintiff has neither, the alleged original, genuine promissory note or mortgage note in their possession, custody or control; and, that these original, genuine "notes" simply do not exist. 44. Plaintiff seeks an in rem judgment on the alleged security instrument, that is subject to the Promissory note for which it is made. 45. Promissory notes are negotiable instruments, as defined under 13 Pa.C.S. § 3101 et. seq. 46. Plaintiff's Amended Complaint exhibit "A" contains a purported Promissory and mortgage note alleged to have been executed by Kenes; Kenes specifically denies that the acknowledgement as relied on is Kenes signature. 47. 13 Pa.C.S. § 3308(a) governs signature in dispute. 48. Following the filing of Plaintiff's Amended Complaint, and prior to Kenes filing either Preliminary Objections or these Amended Preliminary Objections, Kenes sought, per Plaintiff's direction, in two (2) separate formal requests, validation of the alleged debt; and, demand for date(s) and time(s)upon which the alleged original "notes" may be thoroughly examined to establish their authenticity. 49. In addition thereto, Kenes sought an Enlargement of Time by which to file Preliminary Objections with this Court, directly citing, and by way of attachment thereto, exactly what Kenes was seeking. 50. This Court thereafter issued a Rule to Show Cause upon Plaintiff as to why Kenes should not be granted the relief she is/was requesting. 51. On or about June 30, 2010, Plaintiff through its counsel, mailed to Kenes its second reply to Kenes demand, that is clearly on the face of it, a form generated correspondence, stating that, " the original promissory note and deed of trust/mortgage note is not available for inspection. 52. Plaintiff's blatant refusal to produce the "notes" at issue, stating that they are not available, is tantamount to a tacit admission by Plaintiff, that they are not in possession of the alleged original notes they seek judgment on. 53. Accordingly, it becomes clear that absent actual possession and production of the "notes", Plaintiff's otherwise specious claims must fail for lack of Standing, and, for failure to be the Real party in interest, as a matter of law. 54. Absent production of the original genuine notes, potentially subjects Kenes to double (or more) liability, should another "party" or "parties" hereafter come forth and lay similar claim. 55. In such event, Kenes believes, at bare minimum, she is entitled to protection from such potential occurrence(s); and, accordingly, it is altogether just and proper for this Court to direct Plaintiff to post sufficient bond, absent Plaintiff producing the original "notes" for examination and authentication. 56. Wherefore, Kenes moves upon this Honorable Court to dismiss Plaintiff s Amended Complaint, pursuant to Pa.R.C.P. 1028(a)(1) for lack of jurisdiction, as Plaintiff does not have Standing, nor is the Real Party In Interest; or, in the alternative, direct Plaintiff to prove Standing by producing the alleged original Promissory and Mortgage Note(s) for examination and authentication, and to further, stay all proceedings pending the full and complete resolution thereof. Should Plaintiff fail to comply herewith, Kenes respectfully moves upon this Court to compel Plaintiff to fully and adequately protect Kenes, from any and all potential liability, by posting a Bond in double the amount Plaintiff seeks; and, for this Court to provide Kenes with any and all other relief that this Honorable Court may deem just and proper. B. Failure to Make Presentment/Nep-otiable Instruments 57. Kenes avers that Plaintiff has and continues to fail to make Presentment. 58. Insomuch as Plaintiff is seeking an in rem judgment, the in rem action, to enforce the provisions of a mortgage note, is clearly predicated upon an alleged promissory note; it is the original promissory note, which must be in possession of the party that steps forth to assert its claim, and, that said party is clearly and unequivocally on the face thereof, entitled to enforce such claim. 59. Plaintiff alleges that Kenes has failed to make payment(s) on an alleged promissory note, and, that Kenes is thereby in Default thereof; however, at no time material does Plaintiff, having asserted that the "note" is now due and fully payable, or that Kenes has somehow refused to pay, does Plaintiff make Presentment upon Kenes for that payment. 60. Moreover, Kenes, in response to Plaintiff's Amended Complaint, has demanded that Presentment be made, and that Plaintiff forthwith produce the alleged original notes upon which Plaintiff s action is based. 61. Promissory notes come due upon the maturation date stated thereupon; or, in the alternative, where, by contractual provision, acceleration of the maturity date occurs upon failure to make payment as contractually provided. 62. At the moment a breach (of contract) is asserted, providing for the Default and acceleration of the "note", Presentment must be made for the "note" to be "Dishonored" as to thereafter afford the "holder" a remedy/recourse within a court's jurisdiction. 63. Only the actual [alleged] lender, and/or, the actual holder in Due course of the "note" (in possession thereof) can state a breach of the "note", and, only by the "lender/holder" can Presentment be made for the payment of that "note". A "servicer" or other party, who clearly is not in possession of the "note", cannot make this Presentment. 64. There can be no Default without Presentment, for it is through Presentment, and a borrower's subsequent failure to make good, that Default occurs, and the "note" becomes "Dishonored". All other acts by Plaintiff, absent, proof by way of Presentment by the holder, are moot in lieu Plaintiff's failure, in the first instance, to make Presentment. 65. Kenes avers, that Presentment was never made, and in fact, despite Kenes repeated efforts, Plaintiff simply refuses to do so. 66. Moreover, whereas Plaintiff avers that a Notice of Default was served, Kenes avers, that at no time has Plaintiff served Kenes with any notice whatsoever, indicative of a default, and further disputes that a default as otherwise alleged ever occurred. 67. Kenes believes and thus states, that Presentment is a condition precedent for Plaintiff to prove it has standing; that it is the real parry in interest; and, that a debt is actually owed and now fully payable to the person and/or entity "holding" claim thereto. 68. Wherefore, Kenes respectfully moves upon this Honorable Court to dismiss Plaintiff's Amended Complaint for the willful and wanton failure to make Presentment; or, in the alternative, direct Plaintiff to make Presentment by producing the original Promissory and Mortgage Note(s) for examination and authentication; and, to stay all proceedings, pending the full and complete resolution thereof; and, for any and all other relief that this Honorable Court may deem just and proper. C. Plaintiff has failed to Provide Act 91 Notice 69. On or about May 9, 2009, Plaintiff avers that Kenes received an Act 91 Notice. 70. In support of Plaintiff's contention, attached, and marked as Exhibit "E", is a copy of an Act 91 notice, coupled to a U.S. postal service (green signature card) that clearly states, on the face of it, that on May 10, 2009 the Act 91 notice was marked "return to sender" [because Kenes] was "temporarily away". 71. There is absolutely no evidence whatsoever, that Kenes ever received this requisite Notice, or that Plaintiff ever attempted to assure Kenes was in actual receipt of this Notice. To the contrary, Plaintiff's evidence clearly states "return to sender" and that [Kenes] was "temporarily away." 72. Moreover, Plaintiff provides no proof, and Kenes contends that none exists, whereby, in conjunction and/or in addition to the "certified letter" Plaintiff made any attempt to send Kenes notice by regular U.S. Mail, postage pre-paid, or that Plaintiff, by any means, attempted to follow-up the return of the certified mail, as to assure that Kenes was fully and properly put on Notice by Plaintiff. 73. It is well-settled, that the proper service of an Act 91 notice, by both Certified and regular U.S. Mail, postage pre-paid, is an absolute prerequisite to Plaintiff's ability to file an Action in Mortgage Foreclosure. 74. Kenes avers, that she never received an Act 91 Notice, by any means or manner, and accordingly, Plaintiff's failure to prove such, as a matter of law, denies this Court Jurisdiction to hear Plaintiff's Amended Complaint. 75. Additionally, it appears that Plaintiff purports to have accelerated the alleged mortgage before ever allegedly sending the required Act 91 notice. 76. Wherefore, Kenes respectfully moves upon this Honorable Court to dismiss Plaintiff's Amended Complaint, for failure to establish jurisdiction, and/or for any and all other relief as this Court may deem just and proper. D. Plaintiff Fails to Adhere to Contractual Requirements 77. Plaintiff has failed to adhere to the contractual requirements of the alleged agreement for Notice of Default, as relied upon by Plaintiff in the copy of the purported mortgage note. 78. Plaintiffs Exhibit "A" contains an alleged Mortgage Note purportedly executed by Kenes. 79. In paragraph 22 thereof, entitled Acceleration; Remedies, it states, in pertinent part, as follows: Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this security instrument. (emphasis added) 80. Kenes avers that Plaintiff has failed to provide any notice whatsoever to Kenes, appertaining to the provisions of this paragraph, that in the absence thereof, denies Plaintiff the authority to come before this Court, ostensibly decrying a breach, where, in the first instance, notwithstanding Kenes averment that said Mortgage Note does not contain her signature, it is Plaintiff who has breached the covenants of their own suspect Mortgage Note, that Plaintiff now seeks to enforce. 81. Kenes further avers, that the only notice she has received of any kind, to her utter surprise and dismay, occurred following the filing of Plaintiff s original Complaint, as subsequently served upon her by Cumberland County Sheriff s Office. 82. Kenes believes, that it is, and as Plaintiff s contract clearly states in ¶22, a condition precedent, incumbent upon Plaintiff to fulfill, all means and manner of (this and all) Notice(s), as to be rightfully afforded Kenes, prior to initiating any action within this or any tribunal. Absent notice, this Court does not have jurisdiction. 83. Wherefore, Kenes respectfully moves upon this Honorable Court to dismiss Plaintiff's Amended Complaint for failure to comply with the terms of their own alleged Mortgage Note, as it pertains to Default and Noticing, and for any and all other relief that this Court may deem just and proper. E. Purported Sale and Assianments/Ezhibits A.B.C. 84. Kenes hereby incorporated each and every of the preceding paragraphs as if all are fully set forth at length, herein. 85. Plaintiff's exhibits as supportive of their Amended Complaint do nothing to sustain their claims, or support their contention of holding any right to foreclose. 86. On Plaintiff's exhibit "A", entitled Mortgage Note, IndyMac Bank, FSB, purports to name to Mortgage Electronic Registration Systems, Inc, (MERS) as nominee and/or as original mortgagee. 87. Plaintiff's Exhibit "B" refers to an "Assignment of Mortgage". The assignment states that MERS, as nominee for IndyMac Bank, FSB, assigns to Plaintiff, OneWest, FSB: [a]ll of the Assignor's right, title, and interest in and to that certain Mortgage or Deed of Trust, which encumbers the real property more particularly described therein, together with all the indebtedness currently due and to become due under the terms of any promissory note or evidence of indebtedness secured thereby .... (emphasis added) 88. The assignment suggests that in addition to the Mortgage note assignment, that all the indebtedness, i.e. the promissory note itself, has been assigned as well. 89. It is well-established across the country, that MFRS, as nominee, neither has nor holds any vested interest in the promissory note, and is, at no time, a Holder in Due Course of such note; and therefore, MERS cannot sell or assign a promissory note, and/or any indebtedness as otherwise suggested here, as can only be properly evidenced by possession of such note. 90. It is also well-established that, where a mortgage note is assigned, the promissory note, upon which it must by necessity rely, does not follow: a promissory note is absolutely essential, whilst the mortgage note is merely an incident to it. 91. Equally, where a mortgage note is assigned, it is well settled that the promissory note does not follow; whereas, when a promissory is assigned, (the essential) and the assignee has taken actual possession of it, and, it is endorsed to the assignee, only then does the mortgage note (as an incident thereto) follow. 92. Both exhibits "A" and "B" fail are admissible evidence under the Pa. Rules of evidence under 803(6), 901, 902, 1002. 93. MERS assignment to Plaintiff of the mortgage note, only caused, at best, the mortgage note to move; effectively, separating the two notes from each other, thus vitiating any right presumed by Plaintiff to foreclose, absent actual possession of the original promissory note. 94. Notwithstanding the above, this assignment is purportedly signed by Chamagne Williams, as "Assistant Vice -President for MERS, and allegedly witnessed by Jonathon Goulish; this so-called assignment is thereafter alleged on a wholly separate page, to have been notarized by Alex McBride, but provides no indication whatsoever as to exactly what, if any document was actually notarized, or indicative acknowledgement, as to witness. 95. Upon information and belief of Kenes, following research, Chamagne Williams is not a "Assistant Vice President" as otherwise alleged, but was, at all material times, an "Auditor II" for now-defunct, IndyMac Bank, FSB. 96. Ms. Williams lacked any authority, as a mere auditor, to execute an assignment to Plaintiff. 97. Upon information and belief, Chamagne Williams, as an Auditor 11, has been engaged in a series of "after the fact" assignments, on behalf of her employer, Plaintiff, as to obscure and/or otherwise cover-up the true nature, and relations of the transactions that Plaintiff is and/or has been engaged in. 98. Upon information and belief, the alleged assignment by Chamagne Williams, on or about February 17, 2010 is invalid, as IndyMac was seized by the FDIC on or about July 2008, and ceased to exist as of on or about March 2009, with the sweetheart acquisition by Plaintiff. 99. Plaintiff's Exhibit "C" refers to a "Bill of Sale", as purported executed on or about March 19, 2009. 100. In paragraph 3 of Plaintiff s Amended Complaint, it states in pertinent part that, "OneWest was the true owner of the Note and Mortgage at the time the foreclosure action was filed"; and, that, This is evident by the Bill of Sale which is attached and labeled Exhibit "C"." However, there is nothing evident with regards to Kenes property. 101. The "Bill of Sale" facially, has to be among the most questionable of documents ever submitted; it consists of an otherwise barren two paragraph statement that refers to Assets being transferred and/or sold from the FDIC to Plaintiff, but it does not identify what those assets include, or specifically, whether if Kenes property is suggested to be among those assets. 102. The "Bill of Sale" further refers to two separate supporting documents, that being, an "Agreement" and a "Master Purchase Agreement", neither of which are attached, or materially incorporated into Plaintiff's Amended Complaint. 103. Failure to attach or materially incorporate the "terms" of either the "Agreement" or the "Master Purchase Agreement" violates Pa.R.C.P. 1019(1). 104. Though having more than sufficient room on the "Bill of Sale" to provide for both signature and for notary acknowledgement, yet, neither is provided thereupon; instead, two more pages are added thereto. One, solely for the alleged signature of George Alexander, as "Manager Structured Transactions" purportedly for the FDIC, and yet another separate page, solely for notary acknowledgment, as performed by Sabrina Minchella; the latter of which, does not specifically identify what document is being acknowledged. 105. Upon information and belief, based on research, George Alexander is actually a former branch Manager of Plaintiff, and now, is a Vice President for the alleged Plaintiff, OneWest Bank. 106. The Bill of Sale is dated March 19, 2009; the Assignment to MERS as Nominee is alleged to have occurred on or about September 26, 2007; The assignment from MERS is alleged to have occurred on February 17, 2010 (nearly a after the "sale" of "assets" by the FDIC to Plaintiff); and, both the assignment by MERS as allegedly performed by Chamagne Williams, and the "Bill of Sale" as purportedly executed by George Alexander are highly suspect, as, upon information and belief, at all material times, both parties worked and/or work for the plaintiff. 107. All of the allegations as otherwise supported by the ABC's of exhibits in Plaintiff's Amended Complaint, raise well beyond a mere speculative level, as to whether Plaintiff actually has standing and/or is the real parry in interest, and fail to comport to Pa. Rules of Evidence for admissibility. 108. Wherefore, in consideration of the aforesaid, Kenes respectfully moves upon this Honorable Court to dismiss Plaintiff's Amended Complaint for failure to prove standing and/or that Plaintiff is the real party in interest, or for any other relief that this Court deems just and proper. Failure to Conform to Rule of Court or Plead with Specificity 109. Kenes hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length, herein. 110. Plaintiff fails to conform to Rule of Court and/or plead with specificity in their Amended Complaint, in relation to certain exhibits attached as in support thereof. 111. Specifically, Plaintiff's reliance on a Bill of Sale, as attached and marked as Exhibit "C" fails to provide sufficient information as to what "assets" were being sold, as it in no wise makes mention to Kenes property. 112. Additionally, said Bill of Sale refers to two separate agreements as governing the otherwise dearth exhibit. 113. The "Agreement" and "Master purchase Agreement" as otherwise referenced in name only, are not attached or set forth, in material part, as to provide Kenes sufficient information upon which to defend. 114. Accordingly, the failure to have attached or to have materially set forth the contents of these two "Agreements" violates Pa.R.C.P. 1019(i). 115. Wherefore, Kenes respectfully moves upon this Honorable Court to dismiss Plaintiff's Amended Complaint for failure to Conform to Rule of Court and/or plead with specificity, and/or for any other cause of relief that this Court deems just and proper. Failure to Plead with Specificity or in the alternative Insufficient Pleading 116. Kenes hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length, herein. 117. Plaintiffs Amended Complaint fails to plead with specificity and/or is insufficiently pled, with regards to the allegations lodged as to damages, as purportedly supported by Plaintiff's Exhibit "D". 118. Plaintiffs Exhibit "D" fails to identify who, (the maker) and/or what, entity or source "created" the alleged statement(s) of account; nor aside from the statement(s) themselves, all of which purport to have been generated on or about April 22, 2010, there are no supporting documents to verify. 119. The statement(s) refer to "Full Settlement" having occurred, on or about March 23, 2010, but provides no information as to what this may allude to. 120. The statement(s) of account are facially incalculable; however, it is clear that Plaintiff in ¶ 5 that it is alleged that default occurred on or about February 1, 2009, and Plaintiff's summarized accounting is charging interest as of January 1, 2009. 121. Submission of purported copies of an alleged statement of account, absent an identified maker of the document(s), and the entity or source for which it is being made, as well as attestation of its authenticity by way of certification and /or verification must fail as a challenged presumption in lieu of Pa. Rules of Evidence regarding Authenticity and Best Evidence. 122. In addition, Plaintiff's counsel continues to posit the absurd notion that counsel is somehow entitled to over nine thousand ($9,000.00) dollars in legal fees, which is totally unsupported by any facts, as to rates or quantum meruit. 123. Wherefore, Kense moves upon this Honorable Court to dismiss Plaintiff s Amended Complaint for failure to plead with specificity or in the alternative, Insufficient Pleading and/or requests relief any other cause that this Court may deem just and proper. Defective Verification 124. Kenes hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length, herein. 125. Plaintiffs Verification as attached to their Amended Complaint is defective. 126. Plaintiff's verification states in pertinent part that: Brian Burnett, hereby states that he/she is Assistant Vice President for OneWest Bank, FSB, who is the contractual servicing agent for the Plaintiff in this matter. He/she is authorized to take this Verification, and that the statements made in the foregoing Civil Action in mortgage Foreclosure are true and correct to the best of his/her knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa.C.S. Sec. 4904 relating to unworn falsification to authorities. 127. Brian Burnett is repeatedly unable to identify whether they are male or female. 128. Brian Burnett merely identifies themselves as an "Assistant Vice President" for Plaintiff, and as such, does not state, what they have specific first hand knowledge of, as opposed to what is being relied on as merely information and belief; nor state what, if any documents may have been reviewed as to delineate as to what is of knowledge or merely on information and belief. 129. Pa.R.C.P. 1024(a) states in pertinent part(s) that: Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified .... A pleading may be verified upon personal knowledge as to a part and upon information and belief as to the remainder. (emphasis added) 130. Brian Burnett, cannot possibly have first hand knowledge of all the alleged averments of Plaintiff's Amended Complaint, and fails to state, with specificity, exactly what, if anything they have first hand and/or personal knowledge of, and as to what remains, upon information and belief. 131. Notwithstanding the caption added to the verification, that, upon information and belief was cut and pasted thereto, the verification itself does not even refer to what "Civil Action" the verification is being "taken" for. 132. The verification states that Brian Burnett is "authorized to take this Verification.." (emphasis added) as opposed to "make" said verification. 133. Black's Law (5 h ed.) defines "Take" as "to lay hold of; to gain or receive into possession; to seize." This is wholly different as to being authorized to actually "make" a verification. 134. Black's Law (5t' Ed.) defines "make" in relevant part as: to cause to exist... To form, fashion, or produce. To do, perform, or execute; as to make an issue, to make oath, to perform with due formalities. To execute in legal form; as to make answers, to make a return or report. 135. The Verification states that OneWest Bank FSB "is the contractual servicing agent for the Plaintiff', but does not identify who the Plaintiff is, thus once again, raising the issue of who the real party in interest is. 136. Wherefore, Kenes respectfully moves upon this Honorable Court to dismiss Plaintiff s Amended Complaint for failure to Conform to Rule of Court for defective verification, or for any other relief that this Court may deem just and proper. (intentionally left blank) 40 WHEREFORE, Defendant Kelly M. Kenes respectfully moves upon this Court to Dismiss Plaintiff, ONEWEST Bank, FSB's Amended Complaint in Mortgage Foreclosure, for failure to prove said Plaintiff is the Real Party in Interest and/or that, Plaintiff has Standing to commence and/or maintain any action against Kenes, and/or that this court is properly vested with jurisdiction, pursuant to Pa.R.C.P. 1028(a)(1); and, for Plaintiff's failure to Conform to Law or Rule of Court, pursuant to Pa.R.C.P. 1028(a)(2); and for Plaintiff's failure to plead with specificity, pursuant to Pa.R.C.P. 1028(a)(3) and/or Pa.R.C.P. 1028(a)(4); and further that, in the event that Kenes Preliminary Objections be denied, whether in whole, or, in part, that this Court deem such Order, denying Kenes Preliminary Objections, whether in whole, or, in part, as a final Appealable Order, for the expressed purpose of taking immediate appeal thereupon; finally, Kenes seeks cost and fees, in the amount four thousand and two hundred ($4,200.00) dollars, for the cost up to and inclusive of Kenes Amended pleading, defending against Plaintiff's unwarranted action, and/ or, for any and all additional reasons for relief that this Court deems just and proper. Respectfully Submitted, Bart W. Holm 6s PA ID No. 85071 4311 N. Sixth St. Harrisburg, PA. 17110 717-802-5756 717-221-9400 (fax) PA ID No. 85071 4311 N. Sixth Street Harrisburg, Pa. 17110 717-802-5756 717-221-9400 (fax) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB Plaintiff V. Kelly M. Kenes Defendant CIVIL DIVISION CASE NO.: 10-1138 PRELIMINARY OBJECTIONS JURY TRIAL DEMANDED VERIFICATION 1, Kelly M. Kenes, Defendant in the above-captioned matter, do hereby aver that the statements made in Defendant's Amended Preliminary Objections to Plaintiff ONEWEST Bank FSB's Amended Complaint in Mortgage Foreclosure, are true and correct to the best of her knowledge, information and belief. The undersigned acknowledges that this statement is made subject to 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Date: August, 2010 By: Kelly 4.6 Kenes E XHIBIT # OneWest Bank May 25, 2010 Kelly M Kenes 104 E Marble Street Mechanicsburg PA 17055 0000 Re: Mortgage Loan Number: 1010511945 Property Address: 104 E Marble St Mechanicsburg PA 17055 Dear Kelly M Kenes One West Bank, FSB 6900 Beatrice Drive Kalamazoo, MI 49009 800 781 7399 Tel 269 353 2460 International Callers www_onewestbank com This letter is in response to your request for validation of the debt and/or the identity of the original creditor associated with the above referenced mortgage loan number. Enclosed is a copy of the mortgage note which shows your agreement to repay this debt. The name of the original creditor from whom you obtained the loan is set forth in that note. We have also included a 12 month payment history. The debt validation letter was sent to you in order to validate the debt associated with your mortgage loan. The amount owed that was provided in the letter is the balance owed as of the date of the letter. The balance is more than your principal balance shown on your statements as it includes any advances, tees, and interest due on your loan. This amount may not completely satisfy the amount needed to ppay the loan in full as additional fees and interest may be due since tFie mailing of this letter. If you need a detailed breakdown of the amount required to pay your loan in full, please visit our website at www.owb.com. By clicking on My Mortgage, you will be directed to "Manage My Mortgage" where you can register your account, view payoff information and contact us via secure messaging. If you are not able to view your payoff statement online, you may contact Customer Service at 877.908.4357 Monday through Friday, from 8:00 a.m. until 9:00 p.m. EST. Respectfully, IndyMac Mortgage Services, a division of OneWest BankO, FSB This company is a debt collector and any information obtained will be used for that purpose. However, if you have filed a bankruptcy petition and there is either an "automatic stay" in effect in your bankruptcy case, or your debt has been discharged pursuant to the bankruptcy laws of the United States, this communication is intended solely for informational purposes. RS113 007 73D Member LENDER . M EXHIBIT # Kelly M Kenes 104 E. Marble Street Mechanicsburg, Pa. 17055 June 17, 2010 Daniel J. Mancini, Esq. Daniel J. Mancini & Associates 201 A Fairview drive Monaca, Pa. 15061 Re: Verification of Debt (SECOND DEMAND) Sir: On May 17'', 2010 I mailed to you correspondence demanding validation of the debt, including the name, address, job position and complete contact information of the person making the validation of the debt; and, for date(s) and time(s) in which I may examine for authenticity, all the documents including, but not limited to, the original, "wet ink" promissory and mortgage note. On May 280', 2010 I received correspondence from either One West Bank or IndyMac Mortgage Services, an unsigned computer generated form letter stating "This letter is in response to your request for validation of the debt". Enclosed with the correspondence was a poor copy of the promissory note and a document entitled Customer Account Activity Statement. The unsigned computer generated form letter failed to address my demand for the name, address, job position, and complete contact information of the person making the validation of the debt, or my demand for date(s) and time(s) to examine for authenticity, all the documents including, but not limited to, the original, "wet ink" promissory and mortgage note. The promissory note is a public record available at the Recorder of Deed's Office to anyone who wishes a copy. The poor copy of the promissory provided does not address the person who is actually in possession of the promissory note and is unacceptable for validation of the debt. The customer account activity statement does not have anything to do with the validation of the debt and is unacceptable for validation of the debt. Black Law Dictionary 5TH addition defines VALIDATION as follows: To make valid; confirm; sanction; affirm. Black Law Dictionary 5TH addition defines VALID as follows: Having legal strength of force, executed with proper formalities, incapable of being rightfully overthrown or set aside. Bennet v. State 46 Ala. App. 535, 245, So.2d 570, 572. I am giving you one last opportunity to provide documents to validate the debt, provide the name, address, job position, and complete contact information for the person providing the validation of the debt and to provide date(s) and time(s) in which I may examine for authenticity all the documents including, but not limited to, the original, "wet ink" promissory and mortgage note. If you do not provide the documents to validate the debt, the information on the person providing the validation of the debt and provide date(s) and time(s) in which I may examine for authenticity all the documents including, but not limited to, the original, "wet ink" promissory and mortgage within thirty (30) days from the date of this correspondence I will request the Court to compel you to do so. Ke ly M. enes EXHIBIT # G ,: OneWest Bank June 30, =010 Kelly M. ;" enes 104 E. W rble Street Mechanic ;burg, PA 17055 Subject: ivlortgahe Loan Number 1010511945 Dear KelIv M. Kenes, One Wesl Bank, FSB 6900 Beatrice Dave K?11a1-1azoo, (CAI <19009 800 781 7399 Tel 769 353 7,160 Intefnational Callers .. ?',?W. onewe5?hflo <. Co; r,. This letter is in response to your correspondence dated received on June 23, 2010 regarding the above referenced home loan. Although your correspondence is presented as a Qualified Written Request ((1 WR) it does not constitute a QWR subject to the provisions of the Real Estate Settlement Procedures Act (RESPA 12 U.S.C. 2605(e)(1)(B)). A QWR is written corresponJence to your loan servicer stating specific reasons why you believe the servicing of your acco.?nt is in error. It must also include sufficient detail to allow the servicer the opportunity to fully investigate the matter to determine if errors were made in connection with the servicing of the account. Your correspondence fails to state that you feel there are specific errors in the servicing of your account sufficient to allow IndyMac Mortgage Services, a division of'OneWest Bank®, FS- B the ability to investigate further. If you have a specific loan servicing issue, such as a paymen', application issue or a disbursement issue, please send all inquiries to the address below with a detailed explanation as to why you feel the account is in error. IndyMac Mortgage Services, a division of OneWest Bank&, FSB, 6900 Beatrice Dr, Kalamazoo MI 49009. Attention: Research Department From you.- letter 1 understand you are questioning the validity ol1the loaf: referenced above. Enclosed s a copy of the Executed Note, that was signed at closing showing you entered into a contractuE 1 agreement. As a courtesy a 24 month payment history has also been included to show you have ?tcknowiedged the debt. Original documents - or at least the original promissory note and deed of trust/mortgage - are not available Jor inspection, although if you would like to obtain a certified copy please fill out the order fora: enclosed. In providi ig the above response, IndyMac Mortgage Services is not limiting or waiving any rights or remedies it may now or hereafter have, whether arising under your loan documents, at law or in equity, all of which rights and remedies are expressly reserved. Further, the subject loan remains ir, full force and effect and we will continue to service the loan in accordance with the loan documents and applicable law. Please be zssured all options were considered in every effort to assist you with this matter. In the event you require further assistance please call 1-800-781-7399 Monday through Friday, from 8:00 a.m..intil 9:00 p.m. EST. ¦ - ¦ Member LENDER FX .^ OneWest Bank Respectfully, lndyMac \1ortgage Services, a division of OneWest BankOO, FSB Jne West Bank, FSB 6900 Beatrice Drive ??al r.iazoo, MI 49009 X00 '181 7399 Tel :'(39 ?'.):,?IGO1n .??iritiontil Callers w (W(111%e?;ih,Ir* com This con;; any is a debt collector and any information obtained will be used for that purpose. However, ifyou have filed a bankruptcy petition and there is either an "Altomatic stay" in effect in your bE nkruptcy case, or your debt has been discharged pursuant to the bankruptcy laws of the United St:,tes, this communication is intended solely for informational purposes. Q Member LENDER FDIC A 40 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB Plaintiff V. Kelly M. Kenes Defendant CIVIL DIVISION CASE NO.: 10- 1138 PRELIMINARY OBJECTIONS JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Bart W. Holmes, counsel for the above-named Defendant, Kelly M. Kenes in the above-captioned matter, do hereby certify that on August 19, 2010 I caused to be served, a true and correct copy of Defendant's Amended Preliminary Objections to Plaintiff's Amended Complaint, by first class mail, postage prepaid as follows: Daniel J. Mancini Esq. Daniel J. Mancini & Associates 201 A Fairview Drive Monaca, Pa. 15061 (atty. For Plaintiff, ONEWEST Bank, FSB) By: Bart W. Holmes, Esq. PA ID No. 85071 4311 N. Sixth St. Harrisburg, Pa. 17110 717-802-5756 717-221-9400 (fax) Date: August 19, 2010 #9 ONEWEST BANK, FSB, Plaintiff V. KELLY M. KENES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA N0.2010-1138 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE GUIDO, MASLAND, JJ. ORDER OF COURT AND NOW, this 15TH day of OCTOBER, 2010, Defendant's Preliminary Objections to Plaintiff's Amended Complaint are DISMISSED. Defendant is directed to answer the amended complaint within twenty (20) days. By the , Edward E. Guido, J. ~ Daniel J. Mancini, Esquire 161 Linko Avenue Aliquippa, Pa. 15001 /l~~art W. Holmes, Esquire 4311 North 6TH Street Harrisburg, Pa. 17110 Court Administrator sld lO~~ S~ld ~~ c-~ ~ ti ~ ° ~~ -~ ~ a --~ --+ -~ ~ -t ~ cn ~ r~ ~~ .~ c~ ~~ ..~ ~ s -,n ~~ ~~, v~ ~ ~- .° rn --+ cn ~ ~ .~ "''' -< ~~,,~~ ~'l~~tJ'~~t~'j~=~ IN THE COURT OF COMMON PLEA~F~`" ~~'~' T,~r'Gf~ti~ TA>~'~' OF CUMBERLAND COUNTY PENNSY~.~,~'~2~ ~~~ 2~ <<'" ONEWEST BANK, FSB Plaintiff CIVIL~BA~21~~:- I C~l~r~~T' v. Kelly M. Kenes Defendant CASE NO.: 10- 1138 MOTION TO RECONSIDER AND VACATE ORDER; EN BANC JURY TRIAL DEMANDED MOTION FOR RECONSIDERATION TO VACATE ORDER: EN BANC AND NOW, comes Defendant, Kelly M. Kenes, proceeding now once again, pro se, with Motion for Reconsideration to Vacate this Court's October 6, 2010 Order, En Banc, which, with an openly expressed animus and bias against Defendant, by Judge Guido, arbitrarily and capriciously dismissed Defendant's Amended Preliminary Objections, and which further, directed Defendant to Answer Plaintiff ONEWEST Amended Complaint in Mortgage Foreclosure. Defendant moves upon this Court, En Banc, to Reconsider and Vacate the October 6, 2010 Order, as issued by Judge Guido, or in the alternative, deem the Order, a final Appealable Order. Defendant further seeks to immediately stay all proceedings, including, but not limited to the Guido Court's unwarranted order, directing Defendant to Answer Plaintiff's Amended Complaint, pending the resolution of Defendant's Motion for Reconsideration and/or any appeal that may occur there from, and in support thereof, Defendant now states as follows: 1 BACKGROUND 1. On or about February 17, 2010, Plaintiff filed a Complaint in Mortgage Foreclosure, and subsequently caused the Complaint to be served by the Cumberland County Sheriff s office. 2. On or about March 15, 2010, Defendant filed Preliminary Objections to Plaintiff s Complaint. 3. On or about May 3, 2010, Plaintiff filed an Amended Complaint for Mortgage Foreclosure. 4. Plaintiff knowingly Amended their Complaint (without ever answering Defendant's Preliminary Objections, with notice to Plead) approximately forty- nine (49) days after the filing of Defendant's Preliminary Objections, and approximately thirty-nine (39) days after Defendant filed a brief in support thereof; nor, as Pa.R.C.P. 1033 requires, did Plaintiff ever seek leave of Court or consent of Defendant to do so. 5. On or about May 7, 2010, Plaintiff filed a praecipe to list for argument on Defendant's Preliminary Objections. At this point, the only Preliminary Objections filed by Defendant, involved the original Complaint, that, Plaintiff, only four (4) days prior hereto, had already Amended. 6. Plaintiff knew, or should have known, being duly schooled in law, that having Amended their Complaint, albeit improperly, that the Preliminary Objections as raised by Defendant to Plaintiff s original complaint were now moot; the only issue now, revolved around Plaintiff's Amended Complaint. 2 7. Nonetheless, Plaintiff's Amended Complaint specifically raised, and encouraged, distinct administrative issues that were, and as yet remain, unresolved; and, following Defendant's direct correspondence to Plaintiff s counsel, seeking the full and complete resolution of these issues, and, per Plaintiff's expressed, in writing, compliance thereto, on or about May 17, 2010, Defendant filed a Motion for Enlazgement of Time to respond to Plaintiff's Amended Complaint. 8. On or about May 19, 2010, in consideration of Defendant's Motion for Enlazgement, with attached exhibits that underscored exactly what Defendant was specifically seeking, the Honorable, Judge Kevin Hess issued a Rule Returnable upon Plaintiff, as to why Defendant should not be granted the relief requested. 9. On or about May 28, 2010, Plaintiff filed a breviped Answer to Defendant's Motion for Enlargement, only; comprised of three (3) short paragraphs that, did not address, as otherwise required, item for item each and every pazagraph as set forth in Defendant's Motion for Enlazgement. 10. In fact, Plaintiff s Answer, in ¶ 1, offered absolutely nothing to annul what cleazly was contained in Plaintiff's own Amended Complaint, that unequivocally supported Defendant's Motion for Enlargement, for which the Hess Court, in consideration thereof, subsequently issued a Rule Returnable upon Plaintiff for. 11. Nor, as contained in ¶¶ 2 or 3 aze Plaintiff s claims applicable; Plaintiff knew, prior to filing their specious Answer to the Motion for Enlargement, that it was they, who filed for an argument, prior to (the improper) Amending of their original Complaint, and accordingly, any argument regarding Defendant's Preliminary Objections to Plaintiff's Complaint were, by rule, already moot. 3 12. Prior to the hearing, Defendant filed a Memorandum of Law in support of, among other things, Defendant's right to Presentment. 13. On or about June 30, 2010 Plaintiff, having never answered Defendant's Preliminary Objections, and, upon information and belief, having improperly Amended their Complaint in Mortgage Foreclosure, without leave of Court or consent of the Defendant to have done so, now files a Memorandum of Law in Support of Plaintiff s Order to Strike Defendant's Preliminary Objections. 14. In Plaintiff's Memorandum of law, Plaintiff cites, in their proposed order, having filed a Motion to Strike Defendant's Preliminary Objections; however, nowhere contained in the docket is there a record of any such motion having ever been filed, and certainly none of which was ever served upon the Defendant. 15. Nonetheless, Plaintiff, in their Memorandum of Law, cleazly admits that they filed their Amended Complaint well after the twenty (20) day right to cure had expired; and, further, as recognized by the Plaintiff, such amending required, by rule, leave of court (or consent of the adverse party) in order to attempt to cure the defects of Plaintiff s original complaint, as propounded by the Defendant in her Preliminary Objections to Plaintiff s original complaint. 16. In no wise, does Plaintiff specifically address in their Memorandum of Law, as purportedly relied upon to support anon-existing Motion to Strike, each and every item as contained in Defendant's Preliminary Objections as otherwise required; the failure of which, pursuant to Pa.R.C.P. 1029(b), would properly fmd Plaintiff having deemed admitted, whether in whole or in part, Defendant's Preliminary Objections. 4 17. Defendant believes, by rule, Plaintiff was required, in the first instance, to file Preliminary Objections to Defendant's Preliminary Objections and then attempt to support it by brief or Memorandum of Law. In this case, Plaintiff failed to file any appropriate response, prior to filing their Memorandum of Law that, at best, only served to admit, that Plaintiff should have not Amended their Complaint, without leave of Court. 18. A hearing was held on July 7, 2010, however, this hearing should have never been held; Plaintiff, following the filing of their praecipe for azgument, (on the only Preliminary Objections as filed against Plaintiff's original Complaint) had already Amended their Complaint in Mortgage Foreclosure; thus, (if Plaintiff's Amending is to be considered proper) rendered the entire issue moot for argument. 19. Nonetheless, despite the Court being fully awaze that the heaiing itself was already moot, the Court, the Oler Court entertained azgument, until such time, upon information and belief, the Judge's realized where Defendant's azgument properly laid, i.e., the Jurisdiction of the Court and standing of Plaintiff, then and only then, abruptly ended further discussion, citing the issues as moot. 20. Upon information and belief, the Oler Court never directly ruled on the merits of Defendant's pleading, however, having exercised discretion to allow azgument, and, upon information and belief, upon being wholly cognizant and apprised of the salient issue(s) thereof, proceeded thereafter to prejudice the Defendant by azbitrarily deciding mid-stream, that the issue was not properly before the court. 21. This was further exacerbated by the Oler Court, to the sole detriment and prejudice of Defendant, when the Oler Court determined, in its subsequent order, 5 that the Motion for Enlargement, which sought an additional sixty (60) days time to respond, for which the Hess Court had previously issued a Rule Returnable upon Plaintiff, and, had yet to expire at the time of this hearing, was equally moot; thus, Defendant was robbed of her right and opportunity, amongst other things, to compel Presentment of the underlying original, genuine documents that the Enlargement itself sought to obtain. 22. Additionally, then, as now, there was a clear and distinct argument appertaining to whether the Court had (and/or yet has) jurisdiction over the matter, as Defendant clearly had refuted having received, or even having any knowledge whatsoever of, the requisite Act 91 notice; nor, had Plaintiff put forth any evidence, constructive or otherwise, that Defendant had actually received such notice. In fact, Plaintiff's evidence clearly indicated that no such notice was ever received, as the "green card" was clearly marked "temporarily away" and "return to sender". 23. Equally, there was a clear and distinct argument appertaining to Plaintiff s alleged standing, that, despite Plaintiff's averments to the contrary, as otherwise pled or by exhibit(s) attached, that Plaintiff indeed held, in their possession, as otherwise alleged, the original, genuine promissory and mortgage note(s) that Plaintiff is/was seeking to enforce. 24. Evenso, The Oler Court, having already proceeded, procedurally defective, went onto improperly decide its own jurisdiction to the sole harm and detriment of Defendant 6 25. On or about July 27, 2010, Defendant, through counsel, filed Preliminary Objections to Plaintiff's Amended Complaint. However, the Preliminary Objections as initially filed by Defendant's counsel, without her knowledge of the content thereof, were considered insufficiently pled on behalf of Defendant; in that, counsel failed to properly raise all issues as otherwise required .to be raised by rule, lest any issue be subsequently deemed waived for the failure to do so. 26.On or about August 13, 2010, Plaintiff filed a praecipe for azgument on the Preliminary Objections to Plaintiff's (improperly) Amended Complaint; however, once more, Plaintiff failed to respond to them. 27.On ox about August 19, 2010, Defendant filed Amended Preliminary Objections to Plaintiff s Amended Complaint. These Amended Preliminary Objections properly set forth numerous defects and/or problems with Plaintiff's Amended Complaint. 28.On or about September 23, 2010, Plaintiff, having yet to ever formally answer any of Plaintiff s Preliminary Objections, once again, filed a Memorandum of Law in support of their Amended Complaint as directed to Defendant's July 27~` Preliminary Objections. 29.On or about October 6, 2010 a hearing was held, with Judge Guido presiding. 30. From the onset, it was unquestionably evident that Judge Guido, who conducted the proceeding, hazbored a clear and distinct animus, bias and prejudice against the Defendant. 31. It was clear, from the very beginning, that Judge Guido took particular umbrage with Defendant's Amended Preliminary Objections to Plaintiff's Amended 7 Complaint, in, having specifically referenced the approximate thirty-six (36) page document, Judge Guido, prior to any azgument being presented, stated to-the effect that, Defendant was merely attempting to delay the inevitable. 32. Defendant's counsel, proceeded to bring up the issue of the Court's jurisdiction, as Defendant was never served with, nor had any knowledge of an Act 91 notice, to which Judge Guido immediately responded, "They averred the got it" despite Plaintiff s evidence, which was not addressed by the Court as cleazly contravened. 33. Though it was Plaintiff s request for argument, at no time during the course of the proceedings, prior to Judge Guido having akeady aberrantly rendered a decision, was Plaintiff asked to present their case, or even asked to respond; in effect, Plaintiff's counsel never had to utter a single word to get everything handed to them, giftwrapped, by Judge Guido. 34. Upon information and belief, as supported by recently obtained documents, Judge Guido literally ordered another Defendant to answer a Complaint, in case No. 10- 838 where, in the first instance, that Defendant had some six months prior to, already obtained and recorded a judgment against the Plaintiff, for their failure to answer said Defendant's preliminary objections and subsequent notice of default. 35. To so arbitrarily and capriciously deny Defendant's Amended Preliminary Objections wholesale, is a clear and direct abuse of discretion by the Court, that by and through the openly expressed animus and bias of Judge Guido, literally robbed the Defendant of a multitude of validly presented defenses, all of which inured to the sole benefit of Plaintiff unjustly. 8 36. The fact that Plaintiff has woefully failed yet to properly answer either Defendant's original Preliminary Objections to Plaintiff's original Complaint, or as naw, having failed to fully and properly answer Defendant's Amended Preliminary Objections to Plaintiffs Amended Complaint is in and of itself, quite telling; Plaintiff's willful failure to properly address any of Defendant's Preliminary Objections should have deemed them admitted. 37. The above notwithstanding, in the alternative, at bare minimum, Plaintiff should have been directed by the Court to answer Defendant's Amended Preliminary Objections and/or, due to the fact that several issues raised by Defendant, in her Amended Preliminary Objections, including, but not limited to, the salient issue of this Court having jurisdiction (Pa.R.C.P. 1028(a)(1)), can not be determined from the record, requires an evidentiary hearing. 38. Nonetheless, the Guido Court, when faced with the question of the Court's lack of jurisdiction, determined, and then proceeded on its own, to exercise jurisdiction, which accordingly, is contra-indicative to the very laws as delineated by the U.S. Supreme Court, for which Judge Guido, and this Court are by both Oath and Constitution bound to uphold. 9 WHEREFORE, Defendant, Kelly M. Kenes, respectfully moves upon this Court, En Banc, to fully Reconsider and Vacate Judge Guido's October 6, 2010 Order, that wholesale dismissed Defendant's Amended Preliminary Objections, for Judge Guido having abused his discretion, and to further, stay all proceedings, including, but not limited to this Court's yet standing Order, directing Defendant to Answer Plaintiff s Amended Complaint; or, in the alternative, Defendant moves upon this Court, En Banc, to determine finality of said Order, for purposes of granting an immediate and direct appeal. Respectfully Submitted, ~` O Kelly .Kenes 104 E. Marble Street Mechanicsburg, Pa. 17055 (717) 968-2662 10 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB Plaintiff v. . Kelly M. Kenes . Defendant CIVIL DIVISION CASE NO.: 10- 1138 MOTION TO RECONSIDER AND VACATE ORDER; EN BANC JURY TRIAL DEMANDED VERIFICATION I, Kelly M. Kenes, Defendant in the above-captioned matter, do hereby aver that the statements made in Defendant's Motion to Reconsider and Vacate Judge Guido's October 6, 2010 Order, are true and correct to the best of her knowledge, information and belief. The undersigned acknowledges that this statement is made subject to 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. Date: October 25, 2010 sy: Kelly M Cenes IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB CIVIL DIVISION Plaintiff v. CASE NO.: 10- 1138 Kelly M. Kenes MOTION TO RECONSIDER Defendant AND VACATE ORDER; EN BANC JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Kelly M. Kenes Defendant in the above-captioned matter, do hereby certify that on October 25, 2010 I caused to be served, a true and correct copy of Defendant's Motion to Reconsider and Vacate Judge Guido's October 6, 2010 Order, En Banc, by first class mail, postage prepaid as follows: Daniel J. Mancini Esq. Daniel J. Mancini & Associates 201 A Fairview Drive Monaca, Pa. 15061 (atty. For Plaintiff, ONEWEST Bank, FSB) By: Kelly M. enes 104 E. Market Street Mechanicsburg, Pa. 17055 (717) 968-2662 Bart W. Holmes, Esquire F1LED-Of FlCE PA ID No.: 85071 t3F TFi~ PROTFIONOTARY 4311 North 6th Street 2~ (~ QCT ~ ~ ~(~ ~; (~ ~ Harrisburg, PA 17110 717-802-5756 CUMBERLAND COllPITY 717-221-9400 (fax) PENtdSYLYANIA bartwendellholmes@verizon.net ONEWEST BANK, FSB Plaintiff vs. KELLY M. KENES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - NO.: 10-1 I38 MORTGAGE FORECLOSURE PETITION TO WITHDRAW APPEARANCE OF ATTORNEY WITH LEAVE OF COURT 1. Undersigned counsel, Bart W. Holmes (hereafter "Counsel"), entered his appearance on behalf of Defendant Kelly M. Kenes on July 7, 2010. 2. Ms. Kenes' address is 104 E. Marble Street, Mechanicsburg, Pa. 17055. 3. Counsel is providing Notice of this Petition to Ms. Kenes by mailing a copy to her by United State Mail, pre-paid, at the address above. 4. Counsel and Ms. Kenes, by and through Ms. Kenes Attorney-in-fact, have mutually agreed to end Counsel's representation of Ms. Kenes in this matter. 5. No attorney has entered an appearance for Ms. Kenes at this time, and therefore, Counsel requests leave of Court to withdraw his appearance. WHEREFORE, Petitioner Bart W. Holmes, Esquire, attorney for Defendant Kelly M. Kenes, requests that this Honorable Court grant him leave to withdraw as defense counsel on her behalf. Respectfully submitted, Date: October 25, 2010 Bart W. Holmes, I/sq'~ire PA ID No.: 85071 4311 North 6th Street Harrisburg, PA 17110 717-802-5756 717-221-9400 (fax) bartwendellholmes@verizon.net CERTIFICATE OF SERVICE I, Bart W. Holmes, Esquire, certify that I have served a true and correct copy of this Petition for Leave to Withdraw as Defense Counsel on the following, by United States Mail, pre- paid, at: Mr. Daniel J. Mancini, Esquire 201 A Fairview Drive Monaca, PA 15061 Ms. Kelly M. Kenes 104 E. Marble Street, Mechanicsburg, Pa. 17055 Date: October 25, 2010 Bart W. Holmes, Esgilire " PA ID No.: 85071 4311 North 6~' Street Harrisburg, PA 17110 717-802-5756 717-221-9400 (fax) bartwendellholmes@verizon.net 7 ONEWEST BANK, FSB, Plaintiff V. KELLY M. KENES, Defendant 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO. 2010 -1138 CIVIL ORDER OF COURT AND NOW, this y,RD day of NOVEMBER, 2010, a Rule is i Kelly M. Kenes to Show Cause why the Motion of Counsel to W should not be granted. Rule returnable in ten (10) days. BART W. HOLMES, ESQUIRE -',/ DD NIEL J. MANCINI, ESQUIRE :sld ? L?.S' i'Y??L L ` r? ?t?tv upon Defendant his appearance E. Guido, J. C._ I ONEWEST BANK, FSB, IN THE COURT OF CC Plaintiff CUMBERLAND COUN V. KELLY M. KENES, NO. 2010 -1138 CIVIL Defendant IN RE: RECONSIDERATION BEFORE GUIDO, MASLAND, JJ. ORDER OF COURT AND NOW, this 3RD day of NOVEMBER, 2010, ON PLEAS OF PENNSYLVANIA s Motion for reconsideration of our order of October 6, 2010, is DENIED. She is granted twenty (20) days from the date of this order to answer the complaint. .?' Bart W. Holmes,. Esquire 4311 North 6TH Street Harrisburg, Pa. 17110 -,,/ aniel J. Mancini, Esquire 201A Fairview Drive Monaca, Pa. 15601 .A/ICelly M. Kenes 104 East Marble Street Mechanicsburg, Pa. 17055 :sld R ?'a1 E5? rr6'ZL A4 ?16) Guido, J. b h r e ` ter ? ,? ? ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB CIVIL DIVISION Plaintiff V. CASE NO.: 10- 1138 Kelly M. Kenes Defendant JURY TRIAL DEMANDED NOTICE OF APPEAL AND ORDER OF TRANSCRIPT PURSUANT to Pa. R.A.P. 341(c) (4) NOTICE is hereby given that Kelly M. Kenes, Defendant, hereby appeals to the Superior Court of Pennsylvania from the Order of Court dated and filed, November 3, 2010, in the above-captioned matter. This Order has been entered in the docket as evidenced by the attached copy of the Order and docket entry. A Notice of Appeal having been filed in this matter, the Office Court Reporter is hereby ordered to produce, certify and file the transcript in this matter in conformity with Pa. R.A.P. 1922. Respectfully Submitted, - V-i o ate Kelly M. QCenes - 104 E. Marble Street Mechanicsburg, Pa. 17055 (717) 968-2662 VINVAIASNN3d AN= ONb3838WflO 00 :Z wd viz AON 01112 Adb1ONON108d 3N130 301330-01313 41, 00 pd. a(` ?Qali 15-16,30 ONEWEST BANK, FSB, : IN THE COURT OF CO Plaintiff : CUMBERLAND COUN V. KELLY M. KENES, : NO. 2010 -1138 CIVIL Defendant IN RE: RECONSIDERATION BEFORE GUIDO. MASLAND. JJ. ORDER OF COURT AND NOW, this 3RD day of NOVEMBER, 2010, ON PLEAS OF PENNSYLVANIA s, Motion for reconsideration of our order of October 6, 2010, is DENIED. She i? granted twenty (20) days from the date of this order to answer the complaint. W. Holmes,. Esquire 4311 North 0 Street Harrisburg, Pa. 1,7110 ,/taniel J. Mancini, Esquire 201A Fairview Drive Monaca, Pa. 15601 /Kelly M. Kenes 104 East Marble Street Mechanicsburg, Pa. 17055 :sld nn t 4.? ?D i F s ?r?.? l£ !t Aj /td Guido, J. a - W rn C3 -x r 0 =-n. 25-4 =o zri ern C= w --s -< W " mac 13390911242010 Cumberland County Prothonotary's Office •PYS510 Civil Case Print 2010-01138 ONEWEST BANK FSB (vs) KENES KELLY M Reference No..: Case Type.....: REAL PROPERTY - MORTGAGE FOREC LOSURE Judgment...... 00 Judge Assigned: GUIDO EDWARD E Disposed Desc.: ------------ Case Comments ------------- Page 1 Filed......... 2/17/2010 Time.......... 1:30 Execution Date 0/00/0000 Jury Trial.... Disposed Date. 0/00/0000 Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info ONEWEST BANK FSB PLAINTIFF MANCINI DANIEL J C/O MANCINI & ASSOCIATES 201 A FAIRVIEW DRIVE MONACA PA 15061 KENES KELLY M DEFENDANT HOLMES BART W 104 EAST MARBLE STREET MECHANICSBURG PA 17055 ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - 2/17/2010 COMPLAINT - MORTGAGE FORECLOSURE - BY DANIEL MANCINI ATTY FOR PLFF ------------------------------------------------------------------- 2/24/2010 SHERIFF'S RETURN - 2/22/10 - COMPLAINT IN MORTGAGE FORECLOSURE UPON DERFT AT 104 E MARBLE STREET MECHANICSBURG 17055 SHERIFF'S COST $37.00 ------------------------------------------------------------------- 3/15/2010 PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY DEFT ------------------------------------------------------------------- 5/03/2010 AMENDED COMPLAINT IN MORTGAGE FORECLOSURE - BY DANIEL J MANCINI ATTY FOR PLFF ------------------------------------------------------------------- 5/07/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - PRELIMINARY OBJECTIONS - BY DANIEL J MANCINI ATTY FOR PLFF ------------------------------------------------------------------- 5/17/2010 ENLARGEMENT OF TIME TO FILE PRELIMINARY OBJECTIONS TO PLFFS AMENDED COMPLAINT IN MORTGAGE FORECLOSURE - BY DEFT ------------------------------------------------------------------- 5/19/2010 ORDER OF COURT - 5/19/10 IN RE: MOTION FOR ENLARGEMENT OF TIME TO FILE PRELIMINARY OBJECTIONS TO PLFFS AMENDED COMPLAINT IN MORTGAGE FORECLOSURE - A RULE IS HEREBY ISSUED UPON PLFF TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 14 DAYS OF THE DATE OF THIS ORDER - BY J WELSEY OLER JR J - COPIES MAILED 5/19/10 ------------------------------------------------------------------- 5/28/2010 PLAINTIFF'S ANSWER TO DEFTS MOTION FOR ENLARGEMENT OF TIME TO FILE PRELIMINARY OBJECTIONS TO PLFFS AMENDED COMPLIANT IN MORTGAGE FORECLOSURE - BY DANIEL J MANCINI ATTY FOR PLFF ------------------------------------------------------------------- 6/30/2010 CERTIFICATION OF SERVICE - PLFFS MEMORANDUM OF LAW IN SUPPORT OF PLFFS ORDER TO STRIKE DEFTS PRELIMINARY OBJECTIONS UPON DEFT - BY DANIEL J MANCINI ATTY FOR PLFF ------------------------------------------------------------------- 7/07/2010 PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFT - BY BART W HOLMES ESQ ------------------------------------------------------------------- 7/08/2010 ORDER OF COURT 7/7/10 IN RE: DEFTS PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY J WESLEY OLER JR J - COPIES MAILED 7/8/10 ------------------------------------------------------------------- 7/27/2010 DEFENDANT KELLY M KENES PRELIMINARY OBJECTIONS TO PLFFS AMENDED COMPLAINT - BY BART W HOLMES ATTY FOR DEFT ------------------------------------------------------------------- 8/13/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY DANIEL J MANCINI ATTY FOR PLFF PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT ------------------------------------------------------------------- 8/19/2010 DEFENDANT'S AMENDED PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT - BY BART W HOLMES ATTY DEF ------------------------------------------------------------------- 10/15/2010 ORDER OF COURT DATED 10-15-10 IN RE DEFENDANT'S PRELIMINARY 13390911242010 Cumberland County Prothonotary's Office Page 2 •PYS510 Civil Case Print 2010-01138 ONEWEST BANK FSB (vs) KENES KELLY M Reference No..: Filed........: 2/17/2010 Case Type.....: REAL PROPERTY - MORTGAGE FOREC Time.........: 1:30 Judgment...... LOSURE 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT BEFORE GUIDO MASLAND JJ - IS **DISMISSED** - DEFENDANT IS DIRECTED TO ANSWER THE AMENDED COMPLAINT WITHIN 20 DAYS - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 10-15-10 ------------------------------------------------------------------- 10/25/2010 MOTION FOR RECONSIDERATION TO VACATE ORDER; EN BANC - BY KELLY M KENES DEF ------------------------------------------------------------------- 10/25/2010 PETITION TO WITHDRAW APPEARANCE OF ATTORNEY WITH LEAVE OF COURT - BY BART W HOLMES ATTY FOR DEF _ 11/04/2010 ORDER OF COURT-- 11/3/10 IN RE: PETITION TO WITHDRAW APPEARANCE OF ATTY WITH LEAVE OF COURT - A RULE IS ISSUED UPON DEFT TO SHOW CAUSE WHY THE MOTION OF COUNSEL TO WITHDRAW HIS APPEARANCE SHOULD NOT BE GRANTED - RULE RETURNABLE IN 10 DAYS - BY EDWARD E GUIDO J - COPIES MAILED 11/4/10 ------------------------------------------------------------------- 11/04/2010 ORDEREOF COURTGUIDO- RE :MRECONSIDI/RATION - MOTION IS DENIED - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beq**Bal Pmts/Add End Bal ******************************** ******* ****** ******************************* COMPLAINT 55.00 55.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 23.50 23.50 .00 ------------------------ ------------ 92.00 92.00 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COPY FROM RECORD In Tes*wM whoW, t CMMM. Pa hWW TM 1M ssd d sold 20 &1.. TMs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB CIVIL DIVISION Plaintiff V. CASE NO.: 10- 1138 Kelly M. Kenes Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Kelly M. Kenes Defendant in the above-captioned matter, do hereby certify that on November 25, 2010 I caused to be served, a true and correct copy of Defendant's Notice of Appeal by first class mail, postage prepaid as follows: Daniel J. Mancini Esq. Daniel J. Mancini & Associates 201 A Fairview Drive Monaca, Pa. 15061 (atty. For Plaintiff, ONEWEST Bank, FSB) By: n,A'-M U lf? 40 0 n' ?' ko?A Q ?34W elly Kenes 104 E. Market Street Mechanicsburg, Pa. 17055 (717) 968-2662 Karen Reid Bramblett, Esq. Prothonotary Milan K. Mrkobrad, Esq. Deputy Prothonotary Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Onewest Bank, FSB V. Kelly M. Kenes Appellant 1920 MDA 2010 Trial Court Docket No: 10-1138 Dear : Middle District December 1, 2010 Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court, state.pa. us Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /wjt r , c Enclosure C --- .? rn m © rn - =-n - M r (.5 C ) , ? . ?A r- o -4 p. a C-) -° =C -11 o--nn y.c rv z F5 _°ry ?= w D 8:51 A.M. Appeal Docket Sheet Docket Number: 1920 MDA 2010 Page 1 of 2 December 1, 2010 Onewest Bank, FSB V. Kelly M. Kenes Appellant Initiating Document: Case Status: Case Processing Status Journal Number: Case Category: Notice of Appeal Active November 24, 2010 Civil CONSOLIDATED CASES Superior Court of Pennsylvania Secure CAPTION CASE INFORMATION Awaiting Original Record Case Type(s) SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received COUNSEL INFORMATION Appellant Kenes, Kelly M. Pro Se: Yes Appoint Counsel Status: Not Represented IFP Status: No Pro Se: Kenes, Kelly M. Address: 104 E. Marble Street Mechanicsburg, PA 17055 Phone No: (717) 968-2662 Fax No: Receive Mail: Yes Receive EMail: No Civil Action Law RELATED CASES Next Event Due Date: December 15, 2010 Next Event Due Date: January 24, 2011 Appellee Onewest Bank, FSB Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Mancini, Daniel Joseph Bar No: 039353 Address: 201A Fairview Dr Monaca, PA 15061 Phone No: (724) 728-4233 Fax No: (724) 728-4239 Receive Mail: Yes Receive EMail: Yes EMail Address: attorneymancini@aol.com FEE INFORMATION Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt 11/29/2010 NoticeofAppeal 73.5011/29/2010 2010-SPR-M-000986 73.50 8:51 A.M. Appeal Docket Sheet Docket Number: 1920 MDA 2010 Page 2 of 2 December 1, 2010 Superior Court of Pennsylvania Secure AGENCYITRIAL COURT INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Order Appealed From: November 3, 2010 Judicial District: Documents Received: November 29, 2010 Notice of Appeal Filed: Order Type: Order Entered OTN(s): Lower Ct Docket No(s) :10-1138 Lower Ct Judge(s): Guido, Edward E. Judge ORIGINAL RECORD CONTENT Cumberland County Civil Division 09 November 24, 2010 Original Record Item Filed Date Content Description Date of Remand of Record: BRIEFING SCHEDULE None DOCKET ENTRY None Filed Date Docket Entry / Representing Participant Type Filed By November 24, 2010 Notice of Appeal Docketed Appellant Kenes, Kelly M. December 1, 2010 Docketing Statement Exited (Civil) Middle District Filing Office Bart W. Holmes, Esquire PA ID No.: 85071 4311 North 6th Street FILED-OFFICE FIE PROTN0fj,9T,4p,,/ 2I0D?'16 PM3:05 Harrisburg, PA 17110 CUMBERLAND COUNT,` 717-802-5756 PENNSYLVANIA 717-221-9400 (fax) bartwendellholmes@verizon.net ONEWEST BANK, FSB Plaintiff VS. KELLY M. KENES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - NO.: 10-1138 MORTGAGE FORECLOSURE PETITION TO MAKE RULE RETURNABLE ABSOLUTE AND GRANT BART W. HOLMES, ESOUIRE'S PETITION TO WITHDRAW AS COUNSEL FOR DEFENDANT KELLY M. KENES 1. On October 25, 2010, undersigned counsel (hereafter "Counsel") filed a Petition to Withdraw Appearance of Attorney with Leave of Court (Exhibit A). 2. Said Petition was duly served on all parties, including Kelly M. Kenes (hereafter "Kenes"), the client. 3. On November 3, 2010, this Honorable Court issued a Rule to Show Cause why Motion of Counsel to withdraw his appearance should not be granted (Exhibit B). The Rule was returnable within 10 days. 4. The Court's Rule was duly served on all parties, including Kenes. 5. Kenes has not responded to the Court's Rule. 6. Moreover, on December 12, 2010, Counsel again conferred with Kenes attorney-in-fact, who confirmed that Counsel's services are not longer needed. WHEREFORE, Counsel requests that this Honorable Court make the Rule issued on Kenes on November 3, 2010 absolute, and grant Counsel's Petition to Withdraw as Counsel for Kenes. Respectfully submitted, Date: December 15, 2010 Y2 a Bart W. Holmes, Es uire 4311 North 6t` Street Harrisburg, PA 17110 717-802-5756 717-728-3989 (fax) bartwendellholmes@verizon.net EXHIBIT A I 1-4e V t Bart W. Holmes, Esquire PA ID No.: 85071 4311 North 6' Street Harrisburg, PA 17110 717-802-5756 717-221-9400 (fax) FiLED-OF FiCE OF THE PROTHONOTARY 2010 OCT 25 FM 2: 4 O rUMSERLAT D COUNTY PENNSYLVANIA ONEWEST BANK, FSB Plaintiff vs. KELLY M. KENES, Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - NO.: 10-1138 : MORTGAGE FORECLOSURE PETITION TO WITHDRAW AppEARANCE OF ATTORNEY WITH LEAVE OF COURT 1. Undersigned counsel, Bart W. Holmes (hereafter "Counsel"), entered his appearance on behalf of Defendant Kelly M. Kenes on July 7, 2010. 2. Ms. Kenes' address is 104 E. Marble Street, Mechanicsburg, Pa. 17055. 3. Counsel is providing Notice of this Petition to Ms. Kenes by mailing a copy to her by United State Mail; pre-paid, at the address above. 4. Counsel and Ms. Kenes, by and through Ms. Kenes Attorney-in-fact, have mutually agreed to end Counsel's representation of Ms. Kenes in this matter. 5. No attorney has entered an appearance for Ms. Kenes at this time, and therefore, Counsel requests leave of Court to withdraw his appearance. WHEREFORE, Petitioner Bart W. Holmes, Esquire, attorney for Defendant Kelly M. Kenes, requests that this Honorable Court grant him leave to withdraw as defense counsel on her behalf. Respectfully submitted, Date: October 25, 2010 Bart W. Holmes, s PA ID No.: 85071 4311 North 6t' Street Harrisburg, PA 17110 717-802-5756 717-221-9400 (fax) bartwendellholmes@verizon.net CERTIFICATE OF SERVICE I, Bart W. Holmes, Esquire, certify that I have served a true and correct copy of this Petition for Leave to Withdraw as Defense Counsel on the following, by United States Mail, pre- paid, at: Mr. Daniel I Mancini, Esquire 201 A Fairview Drive Monaca, PA 15061 Ms. Kelly M. Kenes 104 E. Marble Street, Mechanicsburg, Pa. 17055 Date: October 25, 2010 Bart W. Holmes, tsgjire PA ID No.: 85071 4311 North 6t' Street Harrisburg, PA 17110 717-802-5756 717-221-9400 (fax) bartwendellholmes@verizon.net EXHIBIT B ONEWEST BANK, FSB, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. KELLY M. KENES, NO. 2010 -1138 CIVIL TERM Defendant ORDER OF COURT AND NOW, this 3RD day of NOVEMBER, 2010, a Rule is issued upon Defendant Kelly M. Kenes to Show Cause why the Motion of Counsel to Withdraw his appearance should not be granted. Rule returnable in ten (10) days. By the Court, , Edward E. Guido, J. BART W. HOLMES, ESQUIRE DANIEL J. MANCINI, ESQUIRE :sld t 'a 40 CERTIFICATE OF SERVICE I, Bart W. Holmes, Esquire, under penalty of unworn falsification to governing authorities, certify that I have served a true and correct copy of the foregoing, by United States Mail, pre-paid, at: Mr. Daniel J. Mancini, Esquire 201 A Fairview Drive Monaca, PA 15061 Ms. Kelly M. Kenes 104 E. Marble Street, Mechanicsburg, Pa. 17055 Date: December 15, 2010 Bart W. Holmes, Esquire v PA ID No.: 85071 4311 North 6`h Street Harrisburg, PA 17110 717-802-5756 717-221-9400 (fax) bartwendellholmes@verizon.net Bart W. Holmes, Esquire PA ID No.: 85071 4311 North 6'h Street Harrisburg, PA 17110 717-802-5756 DEC r PH ?. 62BEC 2 0 20 Jo PENQ C f YLVA 717-221-9400 (fax) bartwendellhohnes@verizon.net ONEWEST BANK, FSB Plaintiff vs. KELLY M. KENES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION - NO.: 10-1138 MORTGAGE FORECLOSURE ORDER N AND NOW, upon consideration of Petition to Make Rule Returnable Absolute and Grant Bart W. Holmes, Esquire's Petition to Withdraw as Counsel for Defendant Kelly M. Kenes, the Court's November 3, 2010 Rule is made absolute, and Bart W. Holmes, Esquire is granted leave to withdraw as counsel. By the Co /A -R/-/d Distribution: 1 J. Mancini, Esquire, 201 A Fairview Drive, Monaca, PA 15061 Ms. Kelly M. Kenes, 104 E. Marble Street, Mechanicsburg, Pa. 17055 W. Holmes, Esquire, 4311 North 6" Street, Harrisburg, PA 17110 1?12r I ? 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB Plaintiff CIVIL DIVISION v- CASE NO.: 10- 1138 -` Kelly M. Kenes DEFENDANT'S MOTION? ? r Defendant DISMISS FOR LACK OF . w . JURIDICTION - w JURY TRIAL DEMANDED DEFENDANT'S MOTION TO DISMISS FOR LACK OF JURISDICTION WITH MEMORANDUM OF LAW NOW COMES, Defendant, Kelly M. Dorris, f/k/a Kelly M. Kenes (hereinafter, "Defendant"), proceeding, for the moment, pro se, with this Motion to Dismiss Plaintiff, ONEWEST BANK, FSB Complaint in Mortgage Foreclosure, for failure to provide Notice as mandated by law, prior to filing their Complaint, and for this Court's lack of Jurisdiction due directly to Plaintiff's failure to do so. In support thereof, with Memorandum of Law, and attached Affidavit, Defendant states as follows: UNDERLYING FACTS 1. On or about Februaryl7, 2010 Plaintiff, ONEWEST BANK, FSB (hereinafter, "Plaintiff') filed and caused to be served on Defendant a Complaint in Mortgage Foreclosure. 2. Prior to being formally served, Defendant had no knowledge of any alleged default; had never been notified by the alleged Plaintiff by telephone or mail; nor received by either Certified or regular U.S. Mail, with proof of mailing the combined Act 6/91 notice(s) were ever served as required by law. 3. Following Defendant's timely Preliminary Objections as filed on or about March 15, 2010, which averred, inter alia, that Defendant had never received the requisite notice(s), Plaintiff filed an Amended Complaint', (as docketed) on or about May 3, 2010 and attached as Exhibit "E", a copy of a purported "green card", dated May 10, 2009. 4. This "green card" Exhibit that Plaintiff submits as (their) proof of service, clearly states on the face of it, "return to sender" and "temporarily away". 5. This "proof' tendered by Plaintiff, is actually "proof' favoring Defendant, indicative, as Defendant has repeatedly averred throughout her pleadings, that Defendant in fact, never received the required Act 91 notice, (or any notice) prior to Plaintiff commencing their action. 6. Plaintiff provides no evidence whatsoever, and in fact, their own exhibit refutes such evidence, that Defendant ever received any notice, prior to commencement of their action. 7. Plaintiff fails to provide any evidence whatsoever, that Plaintiff made any attempt(s), following the United States Postal Service's "return to sender" and "temporarily away" notations given Plaintiff, as to follow-up and thus assure Defendant was in actual receipt thereof; or, aside from the required "certified notice", Plaintiff fails to provide any proof, and Defendant contends none exists, that Plaintiff (as additionally required) mailed Defendant, the Act 91 Notice by regular, U.S. Mail, postage prepaid. 1 It should be noted that in Amending their Complaint, pursuant to Pa.R.C.P. 1033, Plaintiff was beyond the twenty (20) day period to amend, and neither sought concurrence of Defendant, nor Motioned, for Leave of Court to do so. 13. Act 91 provides, in pertinent part, that, " Before any mortgagee may accelerate the maturity of any mortgage obligation under this article, commence any legal action including mortgage foreclosure to recover under such obligation, or take possession of any security of the mortgage debtor for such mortgage obligation, such mortgagee shall give the mortgagor notice as described in [35 P.S.§1680.403c]." 35 P.S. §1680.402c(a). (emphasis added) 14. As with Act 6, the notice requirements pertaining to foreclosure proceedings are clearly jurisdictional. Philadelphia Housing Authority v Barbour, 592 A.2d 47, 48 (Pa. Super.Ct. 1991) ("[T]he notice requirements pertaining to foreclosure proceedings are jurisdictional, and, where applicable, a failure to comply therewith will deprive a court of jurisdiction to act") 15. Plaintiff states in both their Complaint and Amended Complaint that, " 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.." have been been performed, yet provides no evidence to support this. 16. "The fundamental requisite of due process of law is the opportunity to be heard." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (S.Ct. 1950) 17. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Milliken v. Me er 311 U. S. 457 8. Nonetheless, despite this (and other wholly substantively salient issues) Defendant has been forced to endure a series of subsequent pleadings, and hearings, to which, Defendant avers, she was, and yet continues to be repeatedly denied Due Process and equal protection, in the redress of her grievances, as afforded under the United States Constitution. 9. Defendant is now once more being forced to respond to Plaintiff's (now) Amended Complaint, where, in the first instance, and subsequently throughout these proceedings, Defendant has and continues to be denied her due process rights. 10. Defendant now comes before the Court and files this Motion to Dismiss (the alleged) Plaintiff's Complaint/Amended Complaint, with Memorandum at Law in support, and attached Affidavit, for Plaintiffs failure to comply, and/or otherwise first serve Defendant as required by law, with a Act 6/91 Notice, and, consequently, for this Court's lack of Jurisdiction to have heard and/or now hear, either Plaintiff's Complaint, or Amended Complaint. MEMORANDUM OF LAW 11. Defendant hereby incorporates paragraphs one (1) through ten (10) as if each and every are fully set forth at length, herein. 12. Notice under "Act 91" (35 P.S. §§ 1680.101-1680-603a) is the "Housing Finance Agency Law", the provisions of which were first enacted in 1983 as part of P.I. 385. No. 91, and, subsequently amended effective January 1, 2009, under Act 60, and is hereafter referred collectively and commonly referred to as " Act 91 Notices". 18. Defendant avers, that at no time, prior to Plaintiff filing their original Complaint, or, as otherwise contended in Plaintiff's Amended Complaint, did Defendant ever receive Notice of any kind, as otherwise required by law. 19. In support of Defendant's foregoing averments, attached hereto and marked as Defendant's Exhibit "A", is Defendant's notarized Affidavit, attesting to the fact that Defendant never received the required notice(s). WHEREFORE, Defendant respectfully moves upon this Honorable Court to Dismiss Plaintiff, ONEWEST BANK, FSB's Complaint in Mortgage Foreclosure, for failure to provide the required Notice(s), prior to filing their Complaint or Amended Complaint, and, consequently, for this Court's lack of Jurisdiction to hear the matter. Defendant further seeks a stay of all proceedings; including, but not limited to, any pleadings due, or actions that may otherwise occur, pending the full and just resolution of the foregoing motion. Respectfully Submitted, 1??d6 6?Y). Kelly M. D4rris/pro se 104 E. Marble Street Mechanicsburg, Pa. 17055 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB CIVIL DIVISION Plaintiff v. Kelly M. Kenes Defendant CASE NO.: 10- 1138 DEFENDANT'S MOTION TO DISMISS FOR LACK OF JURIDICTION JURY TRIAL DEMANDED VERIFICATION I, Kelly M. Dorris, f/k/a Kelly M. Kenes, Defendant in the above-captioned matter, do hereby aver that the statements made in Defendant's Motion to Dismiss for Lack of Jurisdiction, with Memorandum of Law in support, and attached Affidavit, seeking to Dismiss Plaintiffs Complaint in Mortgage Foreclosure, are true and correct to the best of her knowledge, information and belief. The undersigned acknowledges that this statement is made subject to 18 Pa.C.S. § 4904, relating to unsworn falsification to authorities. J ` i Kelly M. orris/pro se 104 E. Marble Street Mechanicsburg, Pa. 17055 Date: Tl_?V A3 I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB Plaintiff V. Kelly M. Kenes Defendant CIVIL DIVISION CASE NO.: 10- 1138 DEFENDANT'S MOTION TO DISMISS FOR LACK OF JURIDICTION : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Kelly M. Dorris, Defendant, in the above-captioned matter, do hereby certify that on February 23, 2011, I caused to be served, a true and correct copy of Defendant's Motion to Dismiss with Memorandum of Law in support, and attached Affidavit, seeking to Dismiss Plaintiff's Complaint in Mortgage Foreclosure was performed by hand delivery, upon the Office of Court Administrator of Cumberland County and first class mail, postage prepaid, with proof of mailing, as follows: By Hand Delivery: Office of Court Administrator Room 400 One Courthouse Square, Carlisle, Pa. 17013 By First Class Mail: Daniel J. Mancini, Esquire 201 A Fairview Drive Monaca, Pa. 15061 (attys. for Plaintiff, Onewest Bank, FSB) By: aKe4flylDorrisl/pro Msej?p 104 E. Marble Street Mechanicsburg, Pa. 17055 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB Plaintiff v. Kelly M. Kenes Defendant CIVIL DIVISION = r =7 CASE NO.: 10- 1138 . ? w DEFENDANT'S AFFIDAikf ' , JURY TRIAL DEMANDED AFFIDAVIT OF KELLY DORRIS I, Kelly M. Dorris, f/k/a Kelly M. Kenes, the Defendant in the above-captioned matter, am over the age of eighteen, and of sound and competent mind to make this Affidavit, and now thus swear and/or affirm that the statements I make herein are true and correct based on my own personal, firsthand knowledge. 1. I, Kelly M. Dorris never received, by any means whatsoever, whether by Certified mail, U.S. regular mail, or otherwise, an Act 91 Notice. 2. I, Kelly M. Dorris, never received or seen any evidence that the U. S. Postal service had, in any way, attempted to serve me with Certified Mail from the Plaintiff. 3. Prior to Plaintiffs Complaint being served, and my subsequent research, I, Kelly M. Dorris had no knowledge of what an Act 91 Notice was. 4. Prior to the Sheriff's service of a Complaint in Mortgage Foreclosure, I, Kelly M. Dorris never received, by any means, any form of notice concerning an alleged Default. 5. Prior to the Sheriff's service of a Complaint in Mortgage Foreclosure, at no time did the above-captioned Plaintiff, or any representative of the Plaintiff, contact me by any means whatsoever, about an alleged Default. 6. Prior to the service of the Complaint in Mortgage Foreclosure by the Sheriff's Department of Cumberland County, at no time did I, Kelly M. Dorris, have any knowledge whatsoever, by any means or manner, that there is/was an alleged problem between the Plaintiff and Defendant(s). IN WITNESS THEREOF, I, Kelly Dorris, hereunto set my hand and seal this 2,k day of February, 2011 and hereby certify, under Notary Seal, that all the foregoing statements made above are true and correct, based on my personal, firsthand knowledge. Date: ??, b r? as ?.o t Affiant: (seal) State of Pennsylvania ) _?,_OMMNWi=A TH y,, Jp NIA URAT NOTARIAL SEAS County of Cumberland ) KATHLEEN PROUDFOOT, Notary Public Camp HID Boro, Cumberland County ?1?) My CommisslOn Expires Apol 11, 2014 On this oka-day of February, 2011 before me?1 ak%Lee tj '?Koulra Notary Public, 615T the undersigned, Kelly M. Dorris, of 104 E. Marble Street, Mechanicsburg, Pennsylvania 17055 personally appeared, who satisfactory proven to be the person whose name is subscribed to the foregoing Affidavit, and acknowledged that she executed the same for the expressed purposes contained therein. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Notary Public t ONE WEST BANK, FSB IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. KELLY M. KENES Defendant NO. 2010 - 1138 CIVIL TERM ORDER OF COURT AND NOW, this 3RD day of MARCH, 2011, a Rule is issued upon Plaintiff to Show Cause why the Defendant's Motion to Dismiss should not be granted. Rule returnable twenty (20) days after service. By the Edward E. Guido, J. Daniel J. Mancini, Esquire Kelly Dorris q :sld } vt _W. 40 Karen Reid Bramblett, Esq, superior (Court of peuuop1bania Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary March 8, 2011 Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Onewest Bank, FSB v. Kenes, K. No. 1920 MDA 2010 Trial Court Docket No: 10-1138 Dear David D. Buell: Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.superior.court.state.Pa.us Enclosed please find a certified copy of an order dated March 8, 2011 entered in the above-captioned matter. Res ectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /wjt Enclosure -,. f T7 E "LZ 7=z _3 f , Onewest Bank, FSB V. Kelly M. Kenes ORDER IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County No. 10-1138) No. 1920 MDA 2010 Filed: January 19, 2011 Appellant, defendant below, filed a notice of appeal from the November 3, 2010 order denying reconsideration of the October 15, 2010 order dismissing her preliminary objections to the complaint. Both orders directed appellant to file an answer to the complaint. An appeal does not lie from an order denying reconsideration but must be filed timely from the underlying appealable order. Commonwealth v. Moir, 766 A.2d 1253 (Pa. Super. 2000); Cheathem v. Temple University Hospital, 743 A.2d 518 (Pa. Super. 1999). An order overruling preliminary objections and directing the appellant to file an answer to the complaint is interlocutory and not appealable. Chase Manhattan Mortgage Corp. v. Hodes, 784 A.2d 144 (Pa. Super. 2001). Accordingly, the above-captioned appeal is hereby QUASHED. Per Curiam TRUE COPY FROM RECORD Attest: MAR - 8 2011 De" Pro&onorary Superior Court of PA - Middle District F ! l 2011 HAR 23 Ali 10: 43 McCABE, WEISBERG AND CONWAY, P.C. BY: Andrew L. Markowitz, Esq. - ID # 28009 Christine L. Graham, Esq. - ID# 309480 123 South Broad Street, Suite 2080 Philadelphia, Pennsylvania 19109 (215) 790-1010 ONEWEST BANK, FSB Plaintiff V. KELLY M. KENES Defendant CUMBERLAND COUNTY E WMe?S WAPlaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 2010-1138 CIVIL TERM PRELIMINARY OBJECTIONS OF PLAINTIFF ONEWEST BANK FSB TO DEFENDANT'S MOTION TO DISMISS Plaintiff, ONEWEST BANK, FSB, by and through its attorneys, McCABE, WEISBERG & CONWAY, P.C., hereby files, pursuant to Rule 1028 (a)(4) Pa. R. C. P., the following Preliminary Objections in the nature of a Demurrer to the Motion of Defendant KELLY M. KENES to Dismiss in the above matter, as follows: The real property which is the subject of this action is that property located in Cumberland County in the Commonwealth of Pennsylvania, being known as 104 East Marble Street, Mechanicsburg, PA 17055, and being tax parcel # 17-24-0787-164. 2. On September 26, 2007, defendant KELLY M. KENES, at that time the record owner of the property, made, executed and delivered a Mortgage to Mortgage Electronic Registration Systems, Inc. as Nominee for IndyMac Bank, FSB in the original principal amount of $186,000.00, as security for payment of those sums due and owing by defendant to IndyMac Bank, FSB under a Promissory Note also executed by defendant on such date. 3. The aforesaid Mortgage was recorded on October 2, 2007 in Cumberland County Recorder of Deed's Office as Instrument Number 200757944 and a true and correct copy of such Mortgage is attached hereto as Exhibit "A" and incorporated herein by reference. 4. On March 5, 2010, Mortgage to Mortgage Electronic Registration Systems, Inc. as Nominee for IndyMac Bank, FSB, assigned all of its right, title and interest in the aforesaid mortgage to OneWest Bank, FSB, such Assignment of Mortgage being recorded in Cumberland County Recorder of Deed's Office as Instrument Number 201005612. A true and correct copy of such Assignment of Mortgage is attached hereto as Exhibit "B" and incorporated herein by reference. 5. On February 17, 2010, Plaintiff filed a Complaint in Mortgage Foreclosure by reason of defendant's default in her payment obligations under such Mortgage and in particular defendant's failure to make the required monthly payments of principal and interest due upon said mortgage for the months of February, 2009 and each month thereafter 6. On March 15, 2010, Defendant filed Preliminary Objections to Plaintiffs Complaint in Mortgage Foreclosure. See attached Docket as Exhibit "C". 7. On May 3, 2010, Plaintiff filed an Amended Complaint in Mortgage Foreclosure to which Defendant again filed Preliminary Objections on July 7, 2010. See attached Docket as Exhibit "C". 8. On October 15, 2010, the Court entered an Order overruling and dismissing the Defendant's Preliminary Objections. See attached Docket as Exhibit "C". 9. Subsequently, on October 25, 2010, Defendant filed a Motion for Reconsideration seeking to vacate the October 15, 2010 order dismissing her Preliminary Objections to Plaintiffs Amended Complaint in Mortgage Foreclosure. 10. On November 3, 2010, this Court entered an order denying Defendant's Motion for Reconsideration. See attached Docket as Exhibit "C". 11. On February 23, 2011, Defendant filed her Motion to Dismiss For Lack of Jurisdiction. 12. These preliminary objections are filed by plaintiff in opposition to such Motion to Dismiss. PRELIMINARY OBJECTION UNDER RULE 1028 (a) (2) Pa. R. C. P. 13. Plaintiff incorporates by references the allegations of paragraphs 1 through 12 above, as though more fully stated herein. 14. Under Rule 1028(a)(2) Pa. R. C. P., preliminary objections may be filed for "failure of a pleading to conform to law or rule of court." 15. Under Rule 1017(a) Pa. R. C. P., the "pleadings in an action are limited to 1) a complaint and an answer thereto, 2) a reply if the answer contains new matter a counterclaim or a cross-claim, 3) a counter-reply if the reply to a counterclaim or cross-claim contains new matter, and 4) a preliminary objection and a response thereto." 16. Moreover, under Rule 1028(b) Pa. R. C. P., "all preliminary objections shall be raised at one time". 17. The Motion now filed by Defendant, namely a "motion to dismiss" is not one of the pleadings permitted under Rule 1017 Pa. R. C. P. 18. The Defendant's motion to dismiss is essentially the same as a preliminary objection in the nature of a demurrer. 19. Such motion to dismiss, therefore, is contrary to Rule 1028(b) Pa. R. C. P. since defendant previously filed preliminary objections in this matter and such objections were dismissed by the Court and defendant was directed to "answer" plaintiff's Amended Complaint within 20 days in accordance with Rule 1028 (d) Pa. R. C. P. 20. Defendant has failed to comply with the Order of this Court of October 15, 2010 and has still not filed an allowable pleading in conformity with Rule 1017 Pa. R. C. P. 21. For the reasons stated herein, defendant's motion to dismiss fails to conform to law or rule of court and must be dismissed with prejudice. DEMURRER TO DEFENDANT'S MOTION TO DISMISS PURSUANT TO RULE 1028 (a) (4) Pa. R. C. P. 22. Plaintiff incorporates by references the allegations of paragraphs 1 through 12 above, as though more fully stated herein. 23. Defendant's Motion to Dismiss is based on defendant's claim that she never received notice prior to the commencement of this action as required under Act 91, 35 P.S. Section 1680.401 et seq., which, as argued by defendant, deprives the Court of subject matter jurisdiction of this action. 24. Contrary to defendant, there is no requirement under Act 91 that the notice required under such Act actually be received by any particular mortgagor prior to the commencement of legal action, only that the requisite notice be sent by regular and certified mail to the mortgagor's "last known address". See 35 P.S. Section 1680.403c (a). 25. In this instance, plaintiff fully complied with all requirements of Act 91, and in particular Section 403 of such Act, see 35 P.S.§1680.403c(a) and 35 P.S. §1680.403c(e), by sending proper notice to defendant under such Act by regular and certified mail to defendant's last known address. Attached hereto as Exhibit "D" and Exhibit "E" are true and correct copies of the combined notice of delinquency sent to defendant under such Acts and the proof of mailing of such notice by both regular and certified mail to defendant at the property address. 26. For the reasons stated herein, Defendant's motion to dismiss fails to state any claim upon which relief may be granted and such motion should therefore be stricken and dismissed as a matter of law. WHEREFORE, Plaintiff, ONEWEST BANK, FSB respectfully requests that its Preliminary Objections in this matter be SUSTAINED and defendant's Motion To Dismiss be STRICKEN and DISMISSED with prejudice and for such other and further relief as the Court shall deem just and proper. MCCABE, WEISBERG & COIVWAY, P.C. BY: Andrew L. Markowitz, Esquir Christine L. Graham, Esquire Attorneys for Plaintiff OneWest Bank, FSB VERIFICATION The undersigned, Andrew L. Markowitz, Esquire, does hereby certify that he is counsel for ONEWEST BANK, FSB, Plaintiff in the above matter; and that such plaintiff is outside the jurisdiction of the court and that the undersigned counsel is authorized to make this verification on plaintiff's behalf with personal knowledge thereof and that the foregoing facts as set forth in the foregoing Preliminary Objections to Defendant's Motion to Dismiss are true and correct to the best of his knowledge, information and belief, and further states that false statements herein are made subject to the penalties of 18 PA.C.S.§4904 relating to unswom falsification to authorities. Andrew L. Markowitz, Esq. Dated: March 22, 2011 McCABE, WEISBERG AND CONWAY, P.C. BY: Andrew L. Markowitz, Esq. - ID # 28009 Christine L. Graham, Esq. - ID# 309480 123 South Broad Street, Suite 2080 Philadelphia, Pennsylvania 19109 (215) 790-1010 ONEWEST BANK, FSB Plaintiff V. KELLY M. KENES Defendant Attorneys for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS NO. 2010-1138 CIVIL TERM CERTIFICATION OF SERVICE I, ANDREW L. MARKOWITZ, ESQ., hereby certify that a true and correct copy of the within Preliminary Objections to Defendant's Motion to Dismiss was served on the 23`d day of March, 2011, by first-class mail, postage prepaid, addressed as follows: Kelly M Dorris Pro Se Defendant 104 East Marble Street Mechanicsburg, PA 17055 DATE: March 23.2011 Andrew L. Markowitz, Esquire Attorneys for Plaintiff ONEWE BANK, FSB ?7K EXHIBIT'6A99 n Prepared By: DMAC BANK, F.S.B. ICempeny Mama! JETd ifl' W. WRIGHT [Mme of nbtWM Priory 480 EAST GERVaRIC 101 PIKE fS&WAdtaes;l EAST NORRI7M, PA 19401 Icily. 2069 ZP coew 484-636-5108 Irdapborre !umbel After recording please retard to: INDYMAC BANK, F.S.B., C/O DOCCIeNT NANAGEMW (C&IPnyManmJ IMame of Msbual P~j BLDG B, 901 E 104TH ST, SUITE 400/500 [SbWAdukotsl KANSM CITY, HO 64131 ICAy. Safe ZP Cods] [rdephone Allun" l UPVPINIfax ID: 17240787164 DEFIMIONS f*WeAbow ratsLbw Fo.R.cam LEI MIN 100055401278518297 Words used in multiple sections of this document are defined below and other words am defused in Sections 3, 11, 13, 19, 20 and 21. Certain rules regarding the usage of words used in this document are also provided in Section 16. (A) "Secarky Instrument" means this doc unmt, which is dated Sept ul:)ex 26, 2007 , together with all Riders to this document. PtnoWwaaas 114er4fte-Sargle fanift-Fannie -Tt Oouruu+cs Souscs, rr c- R uIV+vNN Uwriulgli?l MUWIVLOGU Geors.arar VRML Page tar U ufKauafte M. news o»or, n CMQh1 rs%b? (B) "Borrower" is KELLY M IUM Borrower is the mortgagor under this Security Instnwent. (C) "MFRS" is Mortgage Ekctronic Registration Systems, Inc, MERS is a separate corporation that is acting solely as a nominee for Lender and Leader's successors and assigns. MFRS is the mortgagee under this Security fastrameat. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS. (D) "Under" is INDYMAC BANK, F.S.S., A FEDERALLY CHAtt'1fItFD SAVINGS RANK Lender is a Federal Savings Bank organized and existing under the laws of United States of America . Lender's address is 155 NOM LAKE AVENUE, PASADENA, CA 91101 (E) "Note" means the promissory rate signed by Borrower and dated Septaaber 26, 2007 The Note states that Borrower owes Leader one hundred eighty six thousand and NO/ 100th-- Doom (U.S. s 186, 000.00 ) plus interest. Borrower has promised to pay this debt in regular Periodic Payments and to pay the debt in full not later than October 1, 2037 . (F) "Property" means the property tbat is described below under the heading "Transfer of Rights in the Property-" (G) "Loan" means the debt evidenced by the Note, plus interest, any prepayment charges and late charges due under the Note, and all sums due under this Security instrument, plus interest. (H) "Riders" means all Riders to this Security Instrument that are executed by Borrower. The following Riders are to be executed by Borrower [check burr as applicable]: ? Adjustable Rate Rider ? Condominium Rider ? Second Home Rider ? Moon Rider ? Planned Unit Development Rider ? Biweekly Payment Rider ? 1-4 Family Rider ? Revocable That Rider (1) "Applicable Law" means all controlling applicable federal, state and local staff tes, regulations, ordinances and administrative rules and orders (that have the effect of law) as well as all applicable foal, non-appealable judicial opinions. (.n "Community Association Dues, Fees, and Assessments" means all dues, fees, assessments and other charges that are imposed on Borrower or the Property by a condominium association, homeowners association or similar organization. (K) "Electronic Foods Transfer" means any transfer of funds, other than a transaction originated by check, dralt, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, computer, or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions; transfers initiated by telephone, wire transfers, and automated clearinghouse transfers. Loam NO: 127851829 Fee myloW Mo1$ge•Sinsle Family-Fero. c MadFrc4dc Mat OVIFORM OVSTRUMUff M=S Medtned Fsm 3tty70W1 -'rurComniAnctSotat Wc.- Page ldtd 14.1r.e..aa...aa a (L) "Escrow Items" means those items that are described in Section 3 (M) "Miscellaneous Proceeds" means any compensation, settlement, award of damages, or proceeds paid by any third party (other than insurance proceeds paid under the coverages described is Section 5) for. (i) damage to, or destruction of the Property; (i) condemnation or other taking of all or any part of the Property; (iii) conveyance in lieu of condemnation; or (iv) misrepresmeations of or omissions as to, the value anWor condition of the Property. (N) "Mortgage Insurance" means insurance protecting Lender against the nonpayment of, or default on, the Loan. (O) "Periodic Payment" means the regularly scheduled amount due for (i) principal and interest under the Note, plus (i) any amounts under Section 3 ofthis Security hatrument. (P) "RESPA" means the Real Estate Settlement Procedures Act (12 U.S.C. §2601 et seq.) and its implementing regulation, Regulation X (24 C.F.R. Part 3500), as they might be amended from time to time, or any additional or successor legislation or regulation that governs the some subject matter. As used in this Security Instrument, "RESPA" refers to all requirements and restrictions that are imposed b regard to a "federally related mortgage ban" even if the Loan does not qualify as a "federally related mortgage knurl" under RESPA. (Q) "Successor in Interest of Borrower" means any party that has taken title to the Property, whether or not that party has assumed Borrower's obligations under the Note ambor this Security Instrument. TRANSFER OF RIGHTS IN THE PROPERTY This Security Instrument secures to Lender: (i) this repayment of the Loon, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this pupose, Borrower does hereby mortgage, grant and convey to MERE (solely as nominee for Lender and Lenders successors and assigns) and to the successors and assigns of MFRS the following described property located in the County of CU HBMUliil0 Mpe ofRecordmgJ--diuionj (Nmne of Record&CJas-1sd-Wo-j Tar P-41D No: 17240787164 SEE EXHIBIT A ATWHEl) HEREW AND MADE A PART HEREOF which currently has the address of 104 E MARBLE STREET [Street] NE7CHMICSBLW Pennsylvania 17055 ("Property Address"): [City] go Code] TOGETHER WUH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument All of the foregoing is referred to in this Security Instrument as the "Property." Borrower tmderstamds and agrees that MERS bolds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (es nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right Ivan NO: 127851829 Pewrlveah Kw0aw-Slunk Famay-Faaak MaelNvddte Mora UMORM U49MUMFNr M=S MMnd For= 3W a1N1 -nu SoV?r, Inc- hoc3d14 ,o,marw nc awe awns, rrca.p:.o, laa,q t.e to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument. BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1. Payment of Principal, Interest, Escrow Items, Prepayment Charges, and Late Charge. Borrower shall pay when due the principal oC and interest on, the debt evidenced by the Note and any prepayment charges and We charges due under the Note. Borrower shall also pay funds for Escrow Items pursuant to Section 3. Payments due under the Note sod this Security Instrument shall be trade in U.S. currency. However, if any check or other instrtmtem received by Lender as payment under the Note or this Security Instrument is returned to Lender unpaid, Lender may require that any or all subsequent payments due under the Note and this Security Instrument be made in one or more of the following forms, as selected by Lender. (a) cash; (b) money order; (c) ca ffied check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an institution whose deposits arc insured by a federal agency, instrumentality, or rarity; or (d) Electronic Funds Transfer. Payments are deemed received by Leader when received at the location designated in the Note or at such other location as may be designated by Lender in accordance with the notice provisions in Section IS. Lender may return any payment or partial payment if the payment or partial payments are issufficicat to bring the Loan current Lender may accept any payment or partial payment insufficient to bring the Loan currat, witbow waiver of any rights hereunder or prejudice to its tights to refuse such payment or partial paymemu in the futm , but Lender is not obligated to apply such payments atthe time such payments are accepted. If each Parodic Payment is applied as of us scheduled due date, then Lender need not pay interest on unapplied funds. Lender may bold such unapplied funds until Borrower stakes payment to bring the Loan caureat. If Borrower does not do so within a reasonable period of time, Lender shall either apply such funds or ream them to Borrower. If not applied earlim such finds will be applied to the outstanding principal balance undue the Note immediately prior to foreclosure. No offset or claim which Borrower might have now or in the future against Lender shall relieve Borrower from malting payments due under the Note and this Security Instrument or performing the covenants and agreements seared by this Security Instrument 2. Applicatloa of Payments or Proceeds. Except as otherwise described in this Section 2, all payments accepted sod applied by Lender shall be applied in the following order of priority: (a) interest due under the Note; (b) principal due ,,,,A.r the Note; (C) ZnWHInfiq A. ., ? c. +;or, ,?, eav.n of ch.l{ be alrmlied a each Periodic Payment in the order in which it became due. Any remaining amounts shall be applied fist to late charges, second to any other amounts due under this Security Instrument, and than to reduce the principal balance of the Note. If Lender receives a payment from Borrower for a delinquent Periodic Payment which includes a sufficient amount to pay any late charge due, the payment may be applied to &a delinquent payment and the late charge. If more than one Periodic Payment is outstanding. Lender may apply any payment received from Borrower to the repayment of the Periodic Payments it; and to the extent that, each payment can be paid in full. To the extent that any excess exists after the payment is applied to the full payment of one or more Periodic Payments, such excess may be applied to any late charges due. Voluntary prepayments shall be applied first to any prepayment charges and then as described in the Note. Any app6atiam of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under the Note shall not extend or postpone the due date, or change the amount, of the Periodic Pa ymets. 3. Fonds for Escrow Items. Borrower shall pay to Lender on the dry Periodic Payments are due under the Note, until the Note is paid in NIL a sum (the "Fonds') to provide for payment of amounts due for. (a) taxes and assessments and other items which an attain priority over this Security Instrument as a lien or encumbrance on the IAMn No: 127851829 PtaaW-ak MarOW-Sink Foully-Faadc MadFredac Mat UNDOEM 116MUME04T MERE Modllka Fora 7039 0141 -799 COMMJAna Swam enc.- Pant t of IA H MWAM M. aaaa aws'TWCa+ioraaal W Property; (b) leasehold payments or ground rents on the Property, if any; (c) premiums for any and all Insurance required by Lender under Section S; and (d) Mortgage Insurance premiums, if any, or any sums payable by Borrower to Lender in lieu of the payment of Mortgage Insurance premiums in accordance with the provisions of Section 10. These items are called "Escrow Items." At origination or at any time during the term of the Los, Lender may require that Community Association Dues, Fees, and Assessments, if any, be escrowed by Borrower, and such dues, fees and assessments shall be an Escrow Item. Borrower shall promptly fianish to Lender all notices of amounts to be paid under this Section. Borrower shall pay Lender the Funds for Escrow Items unless Lender waives Borrower's obligation to pay the Funds for any or all Escrow Items. Lender may waive Borrower's obligation to pay to Lender Funds for any or all Escrow Items at any time. Any such waiver may only be in writing. In the event of such waiver, Borrower shall pay directly, when and where payable, the amounts due for any Escrow Items for which payment of Funds has been waived by Lender and, if Leader requires, mall famish to Lender receipts evidencing such payment within such time period as Lender may require. Borrower's obligation to make such payments and to provide receipts shall for all purposes be deemed to be a covenant and agreement contained in this Security Instrument, as the phrase "covenant and agreement" is used in Section 9. If Borrower is obligated to pay Escrow Items directly, pursuant to a waiver, and Borrower fails to pay the mmou nt due for an Escrow Item, Lender may exercise its rights under Section 9 and pay such amount and Borrower shall them be obligated under Section 9 to repay to Lender any such amount. Leader may revoke the waiver as to any or all Escrow Items at any time by a notice given in accordance with Section IS and, upon such revocation, Harrower shall pay to Lender all Funds, and in such amounts, that are then required under this Section 3. Leader may, at any time, collect and hold Funds in an amount (a) a ffmient to permit Lender to apply the Funds at the time specified under R,ESPA, and (b) not to exceed the maximum amount a lender can require under ROM Lender shall estimate the amount of Funds due on the basis of current data and ressonable estimates of expenditures of fat ue Escrow Items or otherwise in accordance with Applicable Law. The Funds shall be held in an institution whose deposits are insured by a federal agency, instrumentality, or entity (including Lender, if Leader is an inglitution whose deposits arc so ioatned) or in any Federal Home Lon Bank. Lender shall apply the Funds to pay the Escrow Item no later than the time specified under RESPA. Lender shall not charge Borrower for holding and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Harrower interest on the Funds and Applicable Law permits Lewder to snake such a charge. Unless an agreement is made in writing or Applicable Law requires interest to be paid on the Fends, Lender shall sot be required to pay Harrower arty interest or earnings on the Funds. Borrower and Lender can agree m writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower, without charge, in annual accounting of the Funds as required by RESPA. If these is a surplus of Funds held in escrow, as defined under RESPA, Lender shall accost to Borrower for the excess finds in accordance with RESPA. If there is a shortage of Funds held in escrow, as defined under RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall pay to Lander the amount necessary to make up the shortage in accordance with RESPA, but in no more than 12 monthly payments. If them is A and Borrower shall pay to Lender the amount necessary to make up the deficiency in accordance with RESPA, but im no more than 12 monthly payments. Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund to Borrower any Funds held by Leader. 4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines, and impositions attributable to the Property which can attain priority over this Security Instrument, kasebold payments or grand rents on the Property, if any, and Community Association Dues, Feea, and Assessments, if any. To the extent that these items are Escrow Items, Borrower shall pay them in the manner provided in Section 3. Borrower shall promptly discharge any lien which has priority over this Security instrument unless Borrower. (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Leda, but only ono long as Borrower is perfixmi g such agreement; (b) contests the lien in good faith by, or defends against enforcement of the lien in, legal proceedings which in Lender's opinion operate to prevent the enforcement of the lien while those proceedings use pending, but only until such proceedings are concluded; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Loam Non 127851829 FcaaerWaale Merft ge-Single Fm*-Faaale MadriNdic Mu nWdonM RISTMIMuff MESS WOW Fom 38D 41011 -7aoCMffAAMM5DVM ,sec.- Forge Sof 14 1g PAMan.MAte ..+?.?er.,.,a„am. ? ermm.rrc..sr¦.es,.,e,u?. Lender determines that any part of the Property is subject to a lien which can attain priority over this Security Instrument, Lender may give Borrower a notice identifying the lien. Within 10 days of the date on which that notice is given, Borrower shall satisfy the lien or take one or more of the actions set forth above in this Section 4. Lender may require Borrower to pay a one-time charge for a real estate tax verification and/or reporting service used by Lender in connection with this Loan. 5. Property Issuance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fare, hazards included within the term "extended coverage," and any other hazards including, but not limited to, earthquakes and floods. for which Lender requires insurance. This insurance shall be maintained in the amounts (including deductible levels) and for the periods that Lender requires. What Lender requires pursuant to the preceding sentences an change during the term of the Lon The insurance carrier providing the insurance shall be chosen by Borrower subject 10 Lender's right to disapprove Borrower's choice, which right shall not be exercised unreasonably. Lender may require Borrower to pay, in connection with this Loan, either : (a) a one-time charge for flood zone determination, certification and tracking servioes: or (b) a one-time charge for flood zone determination and certification services and subsequent charges each time remappings or similar changes occur which reasonably might affect such determination or certification. Borrower shall also be nsponin for the payment of any fees imposed by the Federal Emergency Management Agency in connection with ible the review of any flood zone determination resulting from an objection by Borrower. If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender's option and Borrower's expense. Lender is under no obligation to purchase any particular type or amount of coverage. Therefore, such coverage shall cover Lender. but might or might not protect Borrower Borrower's equity in the Property. or the contents of the Property, spiW any risk, hazard or liability and might provide grater or lesser coverage than was previously in effect Borrower acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of insurance that Borrower could have obtained Any amounts disbumd by Lender under this Section S shall become additional debt of Borrower seared by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and shalt be payable, with such interest, upon notice firm Lender to Borrower requesting payment. Ali insurance policies required by Lender and renewals of such policies shall be subject to Lender's right to disapprove such policies, shall include a standard mortgage clause, and shall name Lender as mortgagee and/or as an additional loss payee. Leader shall have the right to hold the policies and renewal certificates. If Leader requires, Borrowershall promptly give to Leader all receipts of paid premiums and renewal notices. If Borrower obtains any form of insurance coverage, not otherwise required by Leader, for damage to, or destruction of; the Property, such policy shall include a standard mortgage clause and shall name Lender as mortgagee and/or as an additional loss payee. In the event of loss, Borrower shall give prampt notice to the insurance carrier and Lender. Leader may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree m writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to restoration or repair of the , if the restoration or is ec22emica8y feasible and Lender's security is not lessened. During such repair and restoration period too such marnanCE proceeds tea - has had an opportunity to inspect such Pwp rty to man the work has been completed to Lender's satisfaction, provided that such inspection shall be undertaken promptly. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work is compiled. Unitas an agreement is made in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender shall not be required to pry Borrower any interest or earnings on such proceeds. Fees for public adjusters, or other third parties, retained by Harrower aball not be paid out of the insurance proceeds and shall be the sole obligation of Borrower. If the restoration or repair is not economically feasible or Lender's security would be lessened, the insurance proceeds sball be applied to the sums secured by this Searcy instrument, whether or not then due, with the excess, if any, paid to Borrower. Such insurance proceeds shall be applied in the order provided for in Section 2. If Borrower abandons the Property, Lender may file, negotiate and settle any available insurance claim and related matters. If Borrower does not respond within 30 days to a notice from Lender that the insurance carrier has offered to settle a claim, then Lender may negotiate and settle the claim. The 30-day period will begin when the notice is given. In either event or if Lender acquires the Property under Section 22 or otherwise, Borrower hereby Lorin No: 127851829 teaasr "ids Mwitate4bWo Family FaaNe MadFmddk Mac I NMIRM RCMUMF3rr MIRM Mod MW Form 303941U001 -Tana Coso Houses, lwc- Fate60114 IauMww M.tows oamxn.c..?r..as.rra int. assigns to Lender (a) Borrower's rights to any Inman,, proceeds in an amount not to exceed the amounts unpaid under the Note or this Security Instrument, and (b) any other of Borrower's rights (other thin the right to any refund of unearned premiums paid by Borrower) under all insurance policies covering the Property, insofar as such rights are applicable to the coverage of the Property. Lender may use the insurance proceeds either to repair or restore the Property or to pay amounts unpaid under the Note or this Secrity Instrument, whether or not then due. 6. Occupancy. Harrower still occupy, establish, and use the Property n.3 Borrower's principal re3kkme within 60 days after the exeanion of this Security Instrument and shall continue to occupy the Property as Borrower's principal residetttt for at least one year after the date of occupancy, unless Lender otherwise agrees in writing, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are beyond Borrower's control 7. Preservation, Maintenance and Protection of the Property; Iaspuxtioss. Borrower shall not destroy, damage or impair the Property, allow the Property to deteriorate or commit waste on the Property. Whether at not Borrower is residiag in the Property, Borrower shall maintain the Property in order to prevent the Property firom deteriorating or decreasing in vahtc due to its condition. Unless it is determined pursuant to Section S that repair at restoration is not economically feasible, Borrower shall promptly repair the Property if damaged to avoid further deterioration or damage. if insurance or condemnation proceeds are paid in connection with damage to. or the taking ol, the Property, Borrower shall be responsible for repairing or restoring the Property only if Lender has released proceeds for such purposes. Leader may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the works completed. If the insurance or condemnation proceeds are not sufficient to repair or restore the Property, Borrower is not relieved of Borrower's obligation for the completion of such repair or restoration. Lender or its agent may make reasonable carries upon and inspectieos of the Property. If it has reasonable cause, Lender may inspect the interior of the improvements on the Property. Leader shall give Borrower notice at the time of or prior to such an interior inspection specifying such reasonable cause. & Borrower's Loan Application. Borrower shall be in de&uk If during the Loan application process, Borrower or any persons or entities acting at the daation of Borrower or with Borrower's knowledge of consent gave materially false, misleading, or inaccurate information or statements to Leader (or failed to provide Lender with material information) in connection with the Loan. Material representations include, but we not limited to, representations concerning Borrower's occupancy of the Property as Borrower's principal residence. 9. Protection of Leader's Interco Is the Property sad Rights Under this Security Instrument If (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument, (b) there is a legal proceeding that might significantly affect Lender's interest in the Property and/or rights under this Security Instrument (such as a proceeding in bankruptcy, probate, for condemnation or farf einre, for enforcement of a lien which may attain priority over this Searity instrument or to enforce laws or regulations), or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender's interest in the Property and rights under this Security Instrument, mckxWg protecting and/or asswling the value of but me not linited ro: (a) paying any sums secured by a lien which has priority over this Security Instrument; (b) appearing in coat; and (c) paying reasonable attorneys' fees to protect its interest in the Property and/or rights under this Security Iruswmen% including its seared position in a bankruptcy proceeding. Scouring the Property includes, but is not limited to, entering the Property to make repairs, change locks. replace or board up does aW windows, dnim water from pipes, eliminate building or other code violations or dangerous coratitious, and have utilities named on or off. Although Lender may take adios under this Section 9, Leader does not have to do so and is not under any duty or obligation to do so. It is agreed that Lender incurs no liability for not taking any or all actions authorized under this Section 9. Any amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower seared by this Security Instrument. These amounts shall bear ime rst at the Note rate from the date of disbursement and shall be payable, with such mterest, upon notice from Lender to Borrower requesting payment. If this Security Instrument is on a leasehold, Borrower shall comply with all the provisions of the lease. If Borrower acquires fee title to the Property, the leasebold and the fee title shall not merge unless Lander agrees to the meager in writing. 100 No: 127851829 Femgenda Mw4W-S# gee Faoub4saeie MWFm"c Mae tatffORM tFISIRt1M9Yr MFRS Mew Forte 3109 6141 -IHaC0NWAAPKX3DUWF leer- Fare 7of1n. 14MWAe MF-OM -?'-a .evsWaar C*WTkCwnP1 e3 rakes; I& Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the Loan, Borrower shall pay the premiums required to maintain the Mortgage Insurance in effect. It for any reason, the Mortgage Insurance coverage required by Lender teases to be available from the mortgage usurer that previously provided such insurance and Borrower was required to snake separately designated payments toward the premiums for Mortgage Insurance, Borrower shall pay die premiums required to obtain coverage substantially equivalent to the Mortgage Insurance previously in effect, at a etas substantially equivalent to the cost to Borrower of the Mortgage Insurance previously in effect, from an altercate mortgage insurer selected by Lender If substantially equivalent Mortgage Insurance coverage is not available, Borrower shall continue to pry to Lender the amount of the separately designated payments that were due when the insurance coverage ceased to be in effect. Lender will accept, use and retain these payments as a non-refundable tons reserve in lieu of Mortgage Insurance. Such lass reserve shall be non-nGmdable, notwithstanding the fact that the Loin is ultimately paid in fu8, and Lender shall not be required to pay Borrower any hire" or earnings on such loss reserve. Lender can no longer require loss reserve payments if Mortgage insurance coverage (in the amount and for the period that Leader requires) provided by an insurer selected by Lender again becomes available, is obtained, and Lender requires separately designated payments toward the premiums for Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the Loan and Borrower was required to make separately designated payments toward the premiums for Mortgage Insurance, Borrower shall pay the premiums required to maintain Mortgage Insurance in effect, or to provide a non-refundable lots reserve, until Lender's requirement for Mortgage Insurance ends in accordance with any written agreement between Borrower and Lender providing for such termination or until termination is required by Applicable Law. Nothing in this Section 10 affects Borrower's obligation to pay interest at the rate provided in the Note. Mortgage Insurance reimbtuaes Leader (or any entity that purchases the Nate) for certain losses it may incur if Borrower does not repay the Loan as agreed. Borrower is not a party to die Mortgage Insurance. Mortgage issuers evaluate their total task to all such insurance in farce fiom time to time, and may enter into agreements with other patties that share or modify their risk, or reduce losses. These agreements are on terms and conditions that are satisfactory to the mortgage insurer and the other party (err parties) to these agreements. These agreements may require the mortgage insurer to make payments using any source of fiords that the mortgage insurer may have available (which may include finds obtained from Mortgage Insusace premiums). As a result of these agreements, header, any purchaaa of the Note, another msureti ay reinsurer, any other entity, or any affiliate of any of the foregoing, may receive (directly or indirectly) amounts that derive from (or might be characterized as) a potion of Borrower's payments for Mortgage Insurance, in exchange for sharing or modifying the mortgage insttrer s risk, or reducing losses. If such agreement provides that an affiliate of lender takes a share of the insurer's risk in exchange for a share of the premiums paid to the insurer, the arrangement is often termed "captive reinsurance." Further: (a) Any such agreements will not affect the amounts that Borrower her agreed to pay for Mortgage Insurance, or any other terms of the Iota. Seek agreements will not Increase the amoaat Borrower will owe for Mortgage Insarsaal, and they will not entltte Borrower to any refund. (h) Any such ¦greaaeeta wtLt not affect the r kills Borrower has - if any - with respect to the Mortgage Insurance under the Homeowners Protection Act of 1998 or any other law. There rights may -- ladede the right to receive certain disclosures, to request and obtain anoeLtion of the Mortgage Iasuratue, to have the Mortgage Insurance terminated automatically, and/or to receive a refund of any Mortgage Insurance premiums that were unearned at the time or such cancellation or tersainatica. 11. Assignment of Miscellaneous Proceeds; Forfeitarc. All Miscellaneous Proceeds are hereby assigned to and shall be paid to Lender. If the property is damaged, such Miscellaneous Proceeds shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender's security is not lessened. During such repair and restoration period, Leader shall have the right to hold such Miscellaneous Proceeds until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender's satisfaction, provided that such inspection shall be undertaken promptly. Leader may pay for the repairs and restoration in a single disbursement or in a series of progress payments as the work is completed. Unless an agreement is made in writing or Applicable Law requires interest to be paid on such Miscellaneous Proceeds, Lander shall not be required to pay Borrower any interest or casings an such Miscellaneous Proceeds. If the restoration or repair is not economically loan No: 127851829 Fewrtveak MortputSb%le Fauib4aaok MadFaddk Mat EQ"MRM aY57tit1MV111' arBBS Modmtd Fatty 3ON 01N1 -Tvar soonca,lace Page adla 14MYA WM.alws ^` , taros,rl"cga.rse.?e.? feasible or Lender's security would be lessened, the Miscellaneous Proceeds shall be applied to the sutras secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower. Such Miscellaneous Proceeds shall be applied in the order provided for in Section 2. In the event of a. total taking, destruction, or loss in value of the Property, the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower. In the event of a partial taking, destruction, or loss in value of the Properly in which the fair market value of the Property immediately before the partial taking, destruction, or loss in value is equal to or greater than the amount of the sums secured by ibis Security Instrument immediately before the partial taking, destruction, or loss in value, unless Borrower and Lender otherwise agree in wrkm& the soma secured by this Security Instrument shall be reduced by the amount of the Misceilme as Proceeds multiplied by the following fraction: (a) the total amount of the sums secured immediately before the partial taking, destruction, or loss in value divided by (b) the fair market value of the Property immediately before the partial taking, destruction, or loss in value. Any balance shall be paid to Borrower. In the event of & partial taking, destruction, or lass in value of the Property in which the fair market value of the Property immediately before the partial taking, destruction, or loss in value is less than the amount of the sums secured immediately before the partial taking, destruction, or loss in value, unless Borrower and Lender otherwise agree in writing, the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument whether or not the sums we then due. If the Property is abandoned by Borrower, or if; after notice by Lender to Borrower that the Opposing Party (as defined in the next sentence) offers to make an award to settle a claim for damages, Borrower fails to respond to Lender within 30 days after the date the notice is gives, Lender is authorized to collect and apply the Miscellaneous Proceeds either to restoration or repair of the Property or to the sums secured by this Security Instrument, whether or not then due. "Opposing Patty" means the third party that owes Borrower Miscellaneous Proceeds or the party against whom Borrower has a right of action in regard to Miscellaneous Proceeds. Borrower shall be in default if any action or proceeding, whether civil or criminal, is begun that, in Lender's judgment, could result a forfeitrre of the Property or other material impsrment of Lender's interest in the Property or rights under this Security Instrument Borrower can tare such a default and, if acceleration has occurred, reinstate as provided in Section 19, by causing rho action or proceeding to be dismissed with a ruling that, in Lender's judgment, precludes forfeiture of the Property or other material impairment of Lender's interest in the Properly or rights under this Security Instrument The proceeds of any award or claim for damages that are attributable to the impairment of Lender's interest in the Property arc hereby assigned and shall be paid to Lender. All Miscellaneous Proceeds that are not applied to restoration or repair of the Property shall be applied in the order provided for in Section 2. 12. Borrower Not Released; Forbearance by Leader Not a Waiver. Extension of the time for payment or modification of amortization of the sums seared by this Security Instrument granted by Lender to Borrower or Ray SAM els r in Interest of B?rnwer all not n[fe?e to release the liability of Borrower or any Succ sscas in late" of Borrower. Lender shall not be required to commence proceedings against any Successor in interest of --- - Borrower or to refuse to extend time for payment or otherwise modify amortiation of the ants secured by this Security Instrument by reason of any demand made by the original Borrower or any Successonx in Interest of Borrower. Any forbearance by Lender in exercising any right or remedy including, without limitation, Lender's acceptance of payments from third persons, entities or Successors in interest of Borrower or m amounts Icas than the amount then due, shall not be a waiver of or prechsde the exercise of any right or remedy. 13. Joint sad Several Liability; Co-sipeen; Soccessors and Assigns Bound. Borrower covenants and agrees that Borrower's obligations and liability shall be joie and several. However, any Borrower who co-signs this Security Instrument but does not execute the Note (a "co-signet: (a) is co-signing this Security Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums seared by this Security Instrument; and (c) agrees that Leader and any other Borrower an agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without the co-signer's consent. Loan No' 127851829 Peanll-k MeetageSb& Famtir-Fanole MaeWreddk Mae IINRORM MMUMEKT HERS Mtdmed Form An a W 1 -TIM CONrtaaaR Scones, INC.- Past f of 14 tuns.Mr a c Ms .o.:..r"owew ?1 C'mn,mrCe?ga,ee, aeret Subject to the provisions of Section 18, any Successor in Interest of Borrower who assume Borrower's obligations under this Security Instrument in writing, and is approved by Lender, shall obtain all of Borrower's rights and benefits under this Security Instrument Borrower shall not be released from Borrower's obligations and liability under this Security Instrument unless Lender agrees to such release in writing. The covenants and agreements of this Security Instrument shall bind (except as provided in Section 20) and benefit the successors and assigns of Leader. M Loan Charges. Lender may charge Borrower fees for services performed in connection with Borrower's default, for the purpose of protecting Lender's interest in the Property and rights under this Security Instrument, including, but not limited to, attorneys' fees, property inspection and valuation fees. In regard to any other fees, the absence of express authority in this Security Instrument to charge a specific fee to Borrower shall not be construed as a prohibition on the charging of such fee. Lender may not charge fees that are expressly prohibited by this Security Instrument or by Applicable Law. If the Loan is subject to a law which sets maximum loan charges, and that law is finally interpreted so that the interest or other loan charges collected or to be collected in connection with the Loan exceed the permitted limits, then: (a) atty such loan charge shall be reduced by the'smou nt necessary to reduce the charge to the permitted limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower Lender may choose to make this refmd by reducing the principal owed render the Note or by making a direct payment to Borrower. If a refund reduces principal, the reduction will be treated as a partial prepayment without any prepayment charge (whether or not a prepayment charge is provided for under the Note). Borrower's acceptance of any such refund made by direct payment to Borrower will constitute a waiver of any right of action Borrower might have arising an of such overcharge. 15. Notices. All notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security hsstru meat shall be deemed to have been given to Borrower when mailed by fast class mail or when actually delivered to Borrower's notice address if sent by other means. Notice to any one Borrower shall constitute notice to all Borrowers unless Applicable Law expressly requires otherwise. The notice address shall be the Property Address u tless Harrower has designated a substitute ochre address by notice to Lender. Borrower shall promptly notify Lender of Borrower's change of address. If Lender specifies a procedure for reporting Borrower's change of address, then Borrower shall only report a change of address through that specified procedure. Thee may be only one designated notice address under this Security Instrument at any one time. Any notice to Lender shall be given by delivering it or by mailing it by first class mail to Lender's address stated hereto unless Lender has designated another address by Wive to Borrower. Any notice in connection with this Security Instrument shall not be. domed to have been given to Lender until actually received by Lender. If any notice required by this Security Instrumaent is also required under Applicable Law, the Applicable Law requirement will satisfy the corresponding requirement under this Seen* Instrunaeot. 16. Governing Law; Seversbilky; Rata of Coaatructi00. This Security Instrument shall be governed by federal law and the law of the jurisdiction in which the Property is located AD tights and obligations contained in this SeemFit sorb ea go guy requsement and li-ilatio s ofppr hl r ApplLa t_ Law might explicitly or implicitly allow the parties to agree by contract or it might be silent, but such silence shall not be consuved as a prohibition against agreement by contract. In the event that any provision or clause of this Security Instrument or the Note conflicts with Applicable Law, such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision. As used in this Security Instrument: (a) words of the masculine gender shall mean and include corresponding neuter words or words of the feminine gender, (b) wards in the singular shall mean and include the plural and vice versa; and (c) the word "may" gives We discretion without any obligation to take any action. 17. Borrower's Copy. Borrower shall be given one copy of the Note and of this Security Instrument 18. Transfer of the Property or a Beme0tial bderese in Borrower. As used in this Section IS. "Interest in the Property" mesas any legal or beneficial interest in the Property, including, but not limited to, those beneficial interests mmsferred in a bond for deed, contract for deed, installment sales contract or escrow agreement, the intent of which is the transfer of title by Borrower at a future doe to a purchaser. If all or any part of the Property or any interest in the Property is sold or tnnsfared (or if Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent, Loan No: 127851829 Pcaaryneaara MerlaaaeSigne Fmuly-Farce M&&Tkvddre Mae t1NUORM V49MUAIM MERE MedIM Forst 3039 01101 -Iva cosini"ca SOORCa, Inc- Poe to of if 14MFAM.OMMW ....mud?..ra.an ? arms.neaw.: s..ea ss. Lender may require immediate payment in full of all suss secured by this Security Instrument However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law. if Lender exercises this option. Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay all stems segued by this Security Instrument. If Borrower fails to pay these suns prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand an Borrower. 19. Borrower's Right to Reinstate After Acceleration. If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the earliest of (a) five days before sale of the Property pursuant to any power of sale contained in this Security Instrument (b) such other period as Applicable Law might specify for the termination of Borrower's right to minsuste; or (c) entry of a judgment enforcing this Security Instrument. Those conditions are that Borrower: (a) pays Lender all sums which then would be due under this Security instrument and the Note as if no acceleration had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorneys' fees, property inspection and valuation fees, and other fees incurred for the purpose of protectwg Lender's interest in the Property and rights under this Security Instrument; and (d) takes such action as Lender may reasonably require to assture that Lender's interest in the Property and rights under this Severity Instrument, and Borrower's obligdiat to pay the sums secured by this Security Instrument, shall continue unchanged. Lender may require that Borrower pay such reinstatement sums and expenses in one or more of the following forms, as selected by Lender: (a) cash; (b) money order, (c) certified check, bank check treasurer's check or cashier's check provided any such check is drawer upon an ins" = whose deposits are insured by a federal agency, instrumentality or entity; or (d) Electronic Funds Transfer. Upon reinstatement by Borrower, this Security Instrument and obligations secured hereby shall remain fully effective as if no acceleration had occurred. However, this right to reinstate shall not apply m the case of acceleration under Section 18. 20. Sale of Note; Charge of loan ServicM Notice of Grievance. The Note or a partial interest in the Note (together with this Security hnstmment) can be sold one or mare times without prior notice to Borrower. A sale might result in a change in the entity (known as the "Loam Servieer") that collects Periodic Payments due under the Nate and this Security Instrument and performs other mortgage loan servicing obligations under the Note, this Security Instrument, and Applicable Law. There also might be one or more changes of the Loan Servicer unrelated to aside of the Note. If there is a change of the Loan Servicer, Borrower will be given written notice of the change which will state the name and address of the new Loam Servicer, the address to which payments should be made and any other information RESPA requires in connection with a notice of transfer of servicing. If the Note is sold and thereafter the Loan is serviced by a Loan Servieer other than the purchaser of the Note, the mortgage lean servicing obligations to Borrower will remain with the Loan Servicer or be tnnsfetred to a successor Loan Servicer and are not assumed by the Note purchaser unless otherwise provided by the Note purchaser. Neither Borrower nor lender may commence, join, or be joined to any judicial action (as either an -individual litigant or the member of a class) that arises from the other party's actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action. If Appliable Law provides a time period which must e4pse before certain action can be taken, that titre period will be deemed to be reasonable for purposes of this paragraph. The notice of acceleration and opportunity to cure given to Borrower pursuant to Section 22 and the notice of acceleration given to Borrower pursuant to Section 18 dull be deemed to satisfy the notice and opportunity to take corrective action provisions of this Section 20. 21. Hazardous Substances. As used in this Section 21: (a) "Hazardous Substances" are those substances defined as toxic or hazardous substances, pollutants, or wastes by $nvioomental law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicide, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials; (b) "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or environmental protection; (c)"Fmviromrmental Cleanup" includes any response action, remedial action, or removal action, as Iran No' 127851829 leaaytwata Martpge-Salele FamayFaaeie Madnvddk Mae UNIFORM DiFMUMWr MFRS Moddkd Form 7039 Octet -inn cobtrcr,lnccs somict, t"c -- PW 11 Gf 14 IanMrw r- rags earos.rreo,M:.e.t..4h.?. "..or.- defarod in Environmental Law; and (d) an -Environment"] Ctmdition. means a condition that can cause, contribute to, or otherwise trigger an Environmental Cleanup. Borrower shill not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances, or threaten to release any Hazardous Substances, on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property (a) that is in violation of any Environmental Law, (b) which creates an Environmental Condition, or (c) which, due to the presentee, use, or release of a Hazardous Substance, creates a condition that adversely affects the value of the Property. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardau Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property (including, but not limited to, hazardous substances in consumer products). Borrower shall promptly give Lender written notice of (a) any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and am Hazardous Substance or Environmental Law of which Borrower has actual knowledge, (b) any Environmental Condition, including but not limited 1% any spilling, leaking, discharge, release or threat of release of any Hazardous Substance, and (c) my condition caused by the presence, use or release of a Hazardous Substonce which adversely affects the value of the Property. If Borrower learns, or is notified by any governmental or regulatory authority, or any private party, that any removal or other remedistion of any Hazardous Substance affecting the Property is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. Nothing herein shall create any obligation on Lender for an Environmental Cleanup. NONUNIFORM COVENANTS. Borrower and lender further covenant and agree as follows: 22. Acceleratioo; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement is this Security Instrument (bat not prior to acceleration under Section 18 makin Applicable Law provides otherwbe). Leader shall meaty Borrower e4 among other things: (a) the defanit,• (h) the action required to care the default; (c) when the default must be cared; and (d) that failure to care the default as specified may malt in acceleration of the sums soared by this Security instrument, foreclosure by judicial proceeding and oak of the Property. Lander shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not eared as specified, Leader at its option may require immediate paysseat in full of all sums secured by this Security Instrument without further demand and may foredose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred Is partauimg the remedies provided in this Sectlom 22, tndadfag, but not limited to, attorneys' fees and costs of title evidence to the extent permltted by Applicable Law. 23. Release. Upon payment of all sums secured by this Security Instrument, this Security Instrument and the estate conveyed shall terminate and become void. After such occutrcaa, Leader shall disdtsrge and satisfy this Searity Instrument. Borrower shall pay any recordation costs. Lender may charge Borrower a fee for releasing this Security Instrument, but only if the fee is paid to a third party for services rendered and the charging of the fee is permitted under Applicable Law. 24. Wtivers. Borrower, to the extent permitted by Applicable Law, waives and releases any error or defects in proceedings to enforce this Security Instrument, and bereby waives the beanft of airy present or future laws providing for stay of execution, extension of time, exemption from attachment, levy and sale, and homestead exemption. 25. Reinstatement Period. Borrower's time to reinstate provided in Section 19 shall extend to one hour prior to the commencement of bidding at a sheriff's sale or other sale pers imtt to this So=* Instrument. 26. Purchase Money Mortpge. If any of the debt secured by this Seem* Instrument is lent to Borrower to acquire title to the Property, this Security Instrument shall be a purchase money mortgage. 27. Interest Rate After Judgment Borrower agrees that the interest safe payable afkr a judgment is entered on the Note or in an action of mortgage foreclosure shall be the rate payable from time to time under the Note. Loan No 127851829 Fc-gfvah Mw*WSm& Family Fannie MadErtdak Mae E MUDItM mOMUMENr HERS Mod MW Form 30N IlMl --tins CosaLw4cit Sousict, Inc.- page 12 of 14 ,aaaMwwrr..ans "'""` oars TWC.. r-a.- y.4 Iftnaturas on Fo/ooin9 PVC) BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and in any Rider executed by Borrower and recorded with it -I&M, ANO (Seal) KELLY H AMEI; -Bonowse IPrtrW N-1 (Seal) -norrower [PrintadNwxJ (Seal) -smwwer [P+a.redNawe] (Seal) -Borrower (PrinredNaarJ Catificste of Residence: UWe do hereby certify that the precise address of the within named mortgagee, assignee or pawn entitled to interest is 155 "-,CtA 90..-0.Q. G-v- ; j:?x AW-de nay (2- 4 Qua/ By: d4l );t Title: _ (Aabrwdrdpwd on Fol-M Pager' Loan No: 127851829 PewaWT"b Mortgage-Siyk FunityFaaak MadFnddk Mac Win FORM W SMUMENT MFRS ModWed Fern 1099 01011 -nm Co"HiAnca sovaca, Inc. Page 13 6( 14 NMIMMM U- gaga «+..aapfieurewwewr ? omoxrra.aar.,es.wo..at. State of A Couaty of C/ 'j On tbis, the a4 Ay of AAft appeared IDLY M RIM 2007 , before me g tC n ,4 a n?J ? AJ the undersigned office, personally (mown to me (or satisfactorily proven) to be the person(s) whose name(s) is/are subscribed to the within instrument, and admowledged that hdshehhey executed the same for the purposes therein contained. In witness whereof, I hereunto set my hand and official seal. (Seat) ?V Title d0fficsr COLOAONWEALTH 9E PENNSYLVANIA NOW" Seal GWda Aa. Vhaflnp[m4 Notary PuW Can4 Flr 940. CW nbedand l7olMy MIY Conanoagr. Eapias Oac.2i, 2010 Atembw. Prw*wtle Assoopd en of Noakdes Loan No' 127851829 PeNwAnds Marlpae-S48k Family-Fark Msdit.". H. M90itat V49MUMFNP MtrM Modinetl Fors. #01 -Tim CaNnAiuetSooam,Inc- Far14or14 roerrraawa.aaaas EXHIBIT `B" ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 201005612 Recorded On 3/5/2010 At 11:08:46 AM * Total Pages - 4 * Instrument Type - ASSIGNMENT OF MORTGAGE Invoice Number - 61811 User ID - JM * Mortgagor - KENES, KELLY M * Mortgagee - MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC * Customer - MANCINI & ASSOCIATES * FEES STATE WRIT TAX $0.50 STATE JCS/ACCESS TO $23.50 JUSTICE RECORDING FEES - $11.50 RECORDER OF DEEDS PARCEL CERTIFICATION $10.00 FEES COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 TOTAL PAID $50.50 I Certify this to be recorded in Cumberland County PA RECORDER OF D Certification Page DO NOT DETACH This page is now part of this legal document. * - Information denoted by an asterisk may change during the verification process and may not be reflected on this page. RINN?IIIMNq1 After recording, return to: Daniel J. Mancini, Esquire Mancini & Associates 201 A FAIRVIEW DRIVE MONACA, PA 15061 illll?l OOOARV ASSIGNMENT OF MORTGAGE FOR VALUE RECEIVED, the undersigned Assignor, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR INDYMAC BANK, FSB, does hereby grant, bargain, sell, assign, transfer and convey to the following Assignee: ONEWEST BANK, FSB all of Assignor s right, title, and interest in and to that certain Mortgage or Deed of Trust, which encumbers the real property more particularly described therein, together with all the indebtedness currently due and to kecome due under the terms of any promissory note or evidence of indebtedness secured thereby. This assignment is made without recourse to Assignor and without representation or warranty by Assignor, expressed or implied. Said Mortgage/Deed of Trust, dated 09/26/2007, recorded 10/02/2007 in the Land Records of Cumberland County, Pennsylvania, at Instrument # 200737944, in the amount of $186,000.00. Original Mortgagor: KELLY M. KENES Original Mortgagee: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR INDYMAC BANK, FSB Property Address: 104 EAST MARBLE STREET, MECHANICSBURG, PA 17055 Municipality: BOROUGH OF MECHANICSBURG Tax / Parcel #: 17-24-0787-164 TO HAVE AND TO HOLD the same unto said Assignee(s) and their heirs, executors, successors and assigns, forever, subject only to the terms and conditions of the above described dead of trust n IN TESTIMONY HEREOF, the undersigns has on this day of CSC, caused these present to be signed by its MORTCi ECTRONIC REGISTRATION SYS , INC AS NOMINEE FOR INfl B FHB Witness BY. Signature ??\`a?J ?\?'?} V ?eQ?e'??der Jonathan Goulish Printed Name an Title Notarial Attestation on Succeeding Page STATE OF_ JR??,c-) COUNTY OF__ bk? HEREBY CERTIFY that on this -A day of to wit: 2010, before me, the subscriber, a Notary Public of the State of nO , in and for the County . 4N aforesaid, personally appeared the of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR INDYMAC BANK, FSB, the corporation that executed the forgoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. ALEX MCIRID6 NOUN Public, Stste in, f Tixss f MY co?nnibsIM es .f lo, o ez , Z0- ?Notary Public My commission expires: e,, , . y 0 FIRST AMERICAN TITLE INSURANCE GO- r Commitment Number. KENES215-07 SCHEDULE C PROPERTY DESCRIPTION The land referred to in this Commdment is described as follows: ALL THAT CERTAIN pW of ground smiate on the South side of East Marble Street at comer of land now or late of Abner M. Jacobs and Malgaret L. Jawbe. his w4a; thence along the center tine of said East Marble Street. North 80 dWew East sevelt*We (75) feet to a WM thence MOM land fomnedy of Vicbr L. C. Hasekarl, and now or formerly of Paul T. Shearer and wife. South 10 degrees East, one hundred sbltyr=f ve and seventy-five hundredit (f63.76) >laet b an Iron pin on the norbern firm of Wtd Cherry Ailey; therwe WwV the no* ern line of said ANDY, 8oU1118D ClWww West sevetr*4We (75) feet to an iron pin at comer of land now or forrrtwly of Abner M. JAC*$ and AftWW L. Jaraaha. fns w!fe; thanes dorg ttatd W-W now ar f9ralAmly of Antler M. Jeep and MW O" L . JacefAS; hie wife, Nallfltl 10 degrees Wei, r kmaW &W-tl rlfMlf-4MlKst r vee ftE? (153.75) feet to a Ont in ft 0e11W latet of Ead Morrie Street, the Phft of WGINNNVG. HAVING thereon erected a brick dweFNV house numbered as 104 East Marble Street i L I i ALTA C.on mowt SdmWuW C (KENlW15.01.PFO r.NES219-07/1) EXHIBIT "C" I -? _,.v-?__LL.-dG V _v ?-ULLUJCL.Laij-U. LUUIIL-y YLULIIUIIUI.dLy - S ULL1<.U PYS510 Civil Case Print 2010-01-138 ONEWEST BANK FSB (vs) KENES KELLY M Reference No... Case Type.....: REAL PROPERTY - MORTGAGE FOREC LOSURE Judgment...... .00 Judge Assigned: GUIDO EDWARD E Disposed Desc.: ------------ Case Comments rage Filed......... 2/17/2010 Time.......... 1:30 Execution Date 0/00/0000 Jury Trial.... Disposed Date. 0/00/0000 Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info ONEWEST BANK FSB PLAINTIFF MANCINI DANIEL J C/O MANCINI & ASSOCIATES 201 A FAIRVIEW DRIVE MONACA PA 15061 KENES KELLY M DEFENDANT HOLMES BART W 104 EAST MARBLE STREET MECHANICSBURG PA 17055 ******************************************************************************** * Date Entries ******************************************************************************** 2/17/2010 COMPLAINT - MORTGAGE FORECLOSURE - BYYDANIEL MANCINI ATTY FOR PLFF ----------------------------- 2/24/2010 SHERIFF'S RETURN - 2/22/10 - COMPLAINT IN MORTGAGE FORECLOSURE UPON DERFT AT 104 E MARBLE STREET MECHANICSBURG 17055 SHERIFF'S COST $37.00 -------------------- -------------------- 3 15/2010 PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY DEFT ------------------- ------------------- ----------------------------- 5 03/2010 AMENDED COMPLAINT IN MORTGAGE FORECLOSURE - BY DANIEL J MANCINI ATTY FOR PLFF --------------------------------- _ __ ------------------ 5 07/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - PRELIMINARY OBJECTIONS - BY DANIEL J MANCINI ATTY FOR PLFF --------------------------------------------------- 5/17/2010 ENLARGEMENT OF TIME TO FILE PRELIMINARY OBJECTIONS TO PLFFS AMENDED COMPLAINT IN MORTGAGE FORECLOSURE - BY DEFT ------------------------------------------------ __ 5/19/2010 ORDER OF COURT - 5/19/10 IN RE: MOTION FOR ENLARGEMENT OF TIME TO FILE PRELIMINARY OBJECTIONS TO PLFFS AMENDED COMPLAINT IN MORTGAGE FORECLOSURE - A RULE IS HEREBY ISSUED UPON PLFF TO SHOWCAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 14 DAYS OF THE DATE OF THIS ORDER - BY J WFLSEY OLER JR J - COPIES MAILED 5/19/10 ---------------------------------------------------------- 5/28/2010 PLAINTIFF'S ANSWER TO DEFTS MOTION FOR ENLARGEMENT OF TIME TO FILE PRELIMINARY OBJECTIONS TO PLFFS AMENDED COMPLIANT IN MORTGAGE FORECLOSURE - BY DANIEL J MANCINI ATTY FOR PLFF --------------------------- _ _ _ ___ 6/30/2010 CERTIFICATION OF SERVICE - PLFFS MEMORANDUM OF LAW IN SUPPORT OF PLFFS ORDER TO STRIKE DEFTS PRELIMINARY OBJECTIONS UPON DEFT - BY DANIEL J MANCINI ATTY FOR PLFF ----------------------------------------- 7/07/2010 PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFT - BY BART W HOLMES ESQ --------- 7/08/2010 ORDER OF COURT - 7/7/10 IN RE: DEFTS PRELIMINARY OBJECTIONS TO PLFFS COMPLAINT - BY J WESLEY OLER JR J - COPIES MAILED 7/8/10 ---------------------------------------------- ____ 7/27/2010 DEFENDANT KELLY M KENES PRELIMINARY OBJECTIONS TO PLFFS AMENDED COMPLAINT - BY BART W HOLMES ATTY FOR DEFT ------------ _ _ _ ------------------------ 8/13/2010 PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY DANIEL J MANCINI ATTY FOR PLFF PRELIMINARY OBJECTIONS TO AMENDED COMPLAINT ------------------- _ ---------- 8/19/2010 DEFENDANT'S AMENDED PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT - BY BART W HOLMES ATTY DEF ------------- ------------- _ _ 10 15/2010 ORDER OF COURT DATED 10-15-10 IN RE DEFENDANT'S PRELIMINARY ?Civil?Case Print 2010-01138 ONEWEST BANK FSB (vs) KENES KELLY M Reference No... Ca Filed........: 2/17/2010 Case Type.....: REAL PROPERTY - MORTGAGE FOREC Time.........: 1:30 Judgment...... LOSURE 00 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 Case Comments ------ Higher Crt 1.: OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINTgBEFOREtGUIDO MASLAND JJ - IS **DISMISSED** - DEFENDANT IS DIRECTED TO ANSWER THE AMENDED COMPLAINT WITHIN 20 DAYS - BY THE COURT EDWARD E GUIDO J- COPIES MAILED 10-15-10 ----------------------------------- 10/25/2010 MOTION FOR RECONSIDERATION TO VACATE ORDER; EN BANC - BY KELLY M KENES DEF --------------------------- ------------------- ------------- 10/25/2010 PETITION-TO-WITHDRAW-APPEARANCE-OF-ATTORNEY WITH - LEAVE - OF - COURT - BY BART W HOLMES ATTY FOR DEF ------------------------------------------------------ 11/04/2010 ORDER OF COURT - 11/3/10 IN RE: PETITION TO WITHDRAW APPEARANCE OF ATTY WITH LEAVE OF COURT - A RULE IS ISSUED UPON DEFT TO SHOW CAUSE WHY THE MOTION OF COUNSEL TO WITHDRAW HIS APPEARANCE SHOULD NOT BE GRANTED - RULE RETURNABLE IN 10 DAYS - BY EDWARD E GUIDO J COPIES MAILED 11/4/10 11/04/2010 ORDER OF COURT - 11/3/10 IN RE: RECONSIDERATION - MOTION IS DENIED - BY EDWARD E GUIDO J - COPIES MAILED 11/4/10 - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits ******************************Beg*Ba****Pym**/Ad?******E*d*Ba******************* COMPLAINT 55.00 55.00 00 TAX ON CMPLT .00 .50 .50 .00 SETTLEMENT 8.00 8.00 00 AUTOMATION . 5.00 5.00 .00 JCP FEE 23.50 23.50 .00 ------------------------ ------------ 92.00 92.00 .00 ******************************************************************************** * End of Case Information ******************************************************************************** EXHIBIT °°D" Home Loan Servicing 6900 Beartice Drive Kalamazoo, MI 49009 May 09, 2009 KELLY KENES 104 E MARBLE ST MECHANICSBURG, PA 17055 RE: Loan Number 10 10511945 Legal Description of Property: 104 E MARBLE ST MECHANICSBURG, PA 17055 ACT 91 NOTICE Sent Via Certified Mail 7113 8257 1473 3210 0955 TAKE ACTION TO SAVE YOUR HOME FROM FORECLOSURE 0 This is an official notice that the mortgage on vour home is in default, and the lender intends to foreclose. Specific information about the nature of the default is provided in the attached pages The HOMEOWNER'S EMERGENCY MORTGAGE ASSISTANCE PROGRAM (HEMAP) MAY BE ABLE TO HELP TO SAVE YOUR HOME. This Notice explains how the program works. To see if HEMAP can help, you must MEET WITH CONSUMER CREDIT COUNSELING AGENCY WITHIN 33 DAYS OF THE DATE OF THIS NOTICE. Take this Notice with you when you meet with the Counseling A enc . The name, address and phone number of Consumer Credit Counseling Agencies servicingyour county are li sted at the end of this Notice. If ou have an questions, ou ma call the Pennsylvania Housing Finance A enc toll free at 1-800-342-2397. (Persons with impaired hearing can call 1-717-780-1869). This Notice contains important legal information. If you have any questions, representatives at the Consumer Credit Counseling Agency may be able to help explain it. You may also want to contact an attorney in your area. The local bar association may be able to help you find a lawyer. LA NOTIFICACION EN ADJUNTO ES DE SUMA IMPORTANCIA, PUSS AFECTA SU DERECHO A CONTINUAR VIVIENDO EN SU CASA. St NO COMPRENDE EL CONTENDIDO DE ESTA NOTWICACION OBTENGA UNA TRADUCCION INMEDIATAMENTE LLAMANDO ESTA AGENCIA (PENNSYLVANIA HOUSING FINANCE AGENCY) SIN CARGOS AL NUMERO MENCIONADO ARRIBA. PUEDE SER ELEGIBLE PARA UN PRESTAMO POR EL PROGRAMA LLAMADO "HOMEOWNER'S EMERGENCY MORTGAGE ASSISTANCE PROGRAM" EL CUAL PUEDE SALVAR SU CASA DE LA PERDIDA DEL DERECHO A REDIMIR SU HIPOTECA. 7113 6257 1473 3210 0955 HOMEOWNER'S EMERGENCY MORTGAGE ASSISTANCE PROGRAM YOU MAY BE ELIGIBLE FOR FINANCIAL ASSISTANCE WHICH CAN SAVE YOUR HOME FROM FORECLOSURE AND HELP YOU MAKE FUTURE MORTGAGE PAYMENTS IF YOU COMPLY WITH THE PROVISIONS OF THE HOMEOWNER'S EMERGENCY MORTGAGE ASSISTANCE ACT OF 1983 (THE "ACT"), YOU MAY BE ELIGIBLE; FOR EMERGENCY MORTGAGE ASSISTANCE: IF YOUR DEFAULT HAS BEEN CAUSED BY CIRCUMSTANCES BEYOND YOUR CONTROL, IF YOU HAVE A REASONABLE PROSPECT OF BEING ABLE TO PAY YOUR MORTGAGE PAYMENTS, AND IF YOU MEET OTHER ELIGIBILITY REQUIREMENTS ESTABLISHED BY THE PENNSYLVANIA HOUSING FINANCE AGENCY TEMPORARY STAY OF FORECLOSURE -- Under the Act, you are entitled to a temporary stay of foreclosure on your mortgage for thirty (30) days from the date of this Notice (Plus three (3) days for mailing). During that time you must arrange and attend a "face-to-face" meeting with one of the consumer credit counseling agencies listed at the end of this Notice. THIS MEETING MUST OCCUR WITHIN THIRTY-THREE (33) DAYS OF THE DATE OF THIS NOTICE IF YOU DO NOT APPLY FOR EMERGENCY MORTGAGE ASSISTANCE YOU MUST BRING YOUR MORTGAGE UP TO DATE. THE PART OF THIS NOTICE CALLED "HOW TO CURE YOUR MORTGAGE DEFAULT" EXPLAINS HOW TO BRING YOUR MORTGAGE UP TO DATE CONSUMER CREDIT COUNSELING AGENCIES -- If you meet with one of the consumer credit counseling agencies listed at the end of this notice, the lender may NOT take action against you for thirty (30) days after the date of this meeting. The names, addresses and telephone numbers of designated consumer credit counseling agencies for the county in which the property is located are set forth at the end of this Notice It is only necessary to schedule one face-to-face meeting. Advise your lender immediately of your intentions. APPLICATION FOR MORTGAGE ASSISTANCE -- Your mortgage is in default for the reasons set forth later in this Notice (see following pages for specific information about the nature of your default). You have the app y or tnancta assts ce om a omeowner s mergency ortgage sststance rogratn. o 0 so, you must fill out, sign and file a completed Homeowner's Emergency Assistance Program Application with one of the designated consumer credit counseling agencies listed at the end of this Notice. Only consumer credit counseling agencies have applications for the program and they will assist you in submitting a complete application to the Pennsylvania Housing Finance Agency. To temporarily stop the lender from filing a foreclosure action, your application MUST be forwarded to PHFA and received within thirty (30) y ( )days of your face-to-face meeting with the counseling agency. YOU SHOULD FILE A HEMAP APPLICATION AS SOON AS POSSIBLE. IF YOU HAVE A MEETING WITH A COUNSELING AGENCY WITHIN 33 DAYS OF THE POSTMARK DATE OF THIS NOTICE AND FILE AN APPLICATION WITH PHFA WITHIN 30DAYS OF THAT MEETING, THEN THE LENDER WILL BE TEMPORARILY PREVENTED FROM STARTING A FORECLOSURE AGAINST YOUR PROPERTY, AS EXPLAINED ABOVE, IN THE SECTION CALLED "TEMPORARY STAY OF FORECLOSURE': YOU HA VE THE RIGHT TO FILE A HEMA P APPLICA TION E VEN BEYOND THESE TIME PERIODS. A LATE APPLICATION WILL NOT PREVENT THE LENDER FROM STARTING A FORECLOSURE ACTION, BUT IF YOUR APPLICATION IS EVENTUALLY APPROVED AT ANY TIME BEFORE A SHERIFF'S SALE, THE FORECLOSURE WILL BE STOPPED. AGENCY ACTION - Available funds for emergency mortgage assistance are very limited. They will be disbursed by the Agency under the eligibility criteria established by the Act. The Pennsylvania Housing Finance Agency has sixty (60) days to make a decision after it receives your application. During that time, no foreclosure proceedings will be pursued against you if you have met the time requirements set forth above. You will be notified directly by the Pennsylvania Housing Finance Agency of its decision on your application. NOTE: IF YOU ARE CURRENTLY PROTECTED BY THE FILING OF A PETITION IN A BANKRUPTCY, THE FOLLOWING PART OF THIS NOTICE IS FOR INFORMATION PURPOSES ONLY AND SHOULD NOT BE CONSIDERED AS AN ATTEMPT TO COLLECT THE DEBT. (If you have tiled bankruptcy you can still apply for Emergency Mortgage Assistance.) HOW TO CURE YOUR MORTGAGE DEFAULT Bring it up to date/ NATURE OF THE DEFAULT - The MORTGAGE debt held by IndyMac Mortgage Services, a Division of One West Bank on your property located at the above referenced address is in SERIOUS DEFAULT, because you have not made the monthly payments that follow: Next Payment Due Date: 01/01/2009 Current Monthly Payment: $1,931.17 Total Monthly Payments Due: $9,655.85 Late Charges: $531 34 Other Charges: Uncollected NSF Fees: . $0.00 Other Fees: $0.00 Corporate Advance Balance: $99.00 Partial Payment Balance: -$706.49 TOTAL YOU MUST PAY TO CURE DEFAULT: $9,579.70 HOW TO CURE THE DEFAULT - You may cure the default within THIRTY (30) DAYS of the date of this notice BY PAYING THE TOTAL AMOUNT PAST DUE TO THE LENDER, WHICH IS $9,579.70, PLUS ANY MORTGAGE PAYMENTS AND LATE CHARGES WHICH BECOME DUE DURING THE THIRTY (30) DAY PERIOD. Payments must be made either by cashier's check, certified check or monrv nwier mails. IndyMac Mortgage Services, a Division of One West Bank P.O. Box 78826 Phoenix, AZ 85062-88026 IF YOU DO NOT CURE THE DEFAULT -- If you do not cure the default within THIRTY (30) DAYS of the date of this Notice, the lender intends to exercise i rights to accelerate he moileam debt. This means that the entire outstanding balance of this debt will be considered due immediately and you may lose the chance to pay the mortgage in monthly installments. If full payment of the total amount past due is not made within THIRTY (30) Days, the lender also intends to instruct its attorneys to start legal action to foreclosure upon vour mortgaged Property. IF THE MORTGAGE IS FORECLOSED UPON -- The mortgaged property will be sold by the sheriff to pay off the mortgage debt. If the lender refers your case to its attorneys, but you cure the delinquency before the lender begins legal proceedings against you, you will still be required to pay the reasonable attorney's fees that were actually incurred, up to $50.00. However, if legal proceedings are started against you, you will have to pay all reasonable attorney's fees actually incurred by the lender even if they exceed $50.00. Any attorney's fees will be added to the amount you owe the lender, which may also include other reasonable costs. If you cure the default within the THIRTY (301 DAY period you will not be MRuired to pay attorney's fees IS -- 7113 8257 1473 3210 0955 OTHER LENDER REMEDIES -- The lender may also sue you personally for the unpaid principal balance and all other sums due under the mortgage. RIGHT TO CURE THE DEFAULT PRIOR TO SHERIFF'S SALE -- If you have not cured the default within the THIRTY(30) DAY period and foreclosure proceedings have begun, you still have the right to cure the default and mevent the sale at any time up to one hour before the Sheriff's Sale You may do so by paying the total amount then past due, plus any late or other charges then due reasonable attorney's fees and costs connected with the foreclosure sale and any other costs connected with the Sheriff's Sale as specified in writing by the lender and by performing any other requirements under the mortgage Curing your default in the manner set forth in this notice will restore your mortgage to the same position as if you had never defaulted. EARLIEST POSSIBLE SHERIFF'S SALE DATE - It is estimated that the earliest date that such a Sheriffs Sale of the mortgaged property could be held would be approximately 6 months from the date of this Notice. A notice of the actual date of the Sheriff's Sale will be sent to you before the sale. Of course, the amount needed to cure the default will increase the longer you wait. You may find out at any time exactly what the required payment or action will be by contacting the lender. HOW TO CONTACT THE LENDER: IndyMac Mortgage Services, a Division of One West Bank 7700 West Parmer Lane Austin, Texas 78729 Loan Resolution Department 1(877) 9084357 EFFECT OF SHERIFF'S SALE - You should realize that a Sheriffs Sale will end your ownership of the mortgaged property and your right to occupy it. If you continue to live in the property after the Sheriffs Sale, a lawsuit to remove you and your furnishings and other belongings could be started by the lender at any time. ASSUMPTION OF MORTGAGE - You may be eligible to sell or transfer your home to a buyer or transferee who will assume the mortgage debt, provided that all the outstanding payments, charges and attorney's fees and costs are paid prior to or at the sale and that the other requirements of the mortgage are satisfied. You will need #_ - - r or assumption of YOU MAY ALSO HAVE THE RIGHT: • TO SELL THE PROPERTY TO OBTAIN MONEY TO PAY OFF THE MORTGAGE DEBT OR TO BORROW MONEY FROM ANOTHER LENDING INSTITUTION TO PAY OFF THIS DEBT. • TO HAVE THIS DEFAULT CURED BY ANY THIRD PARTY ACTING ON YOUR BEHALF. • TO HAVE THE MORTGAGE RESTORED TO THE SAME POSITION AS IF NO DEFAULT HAD OCCURRED. IF YOU CURE THE DEFAULT. (HOWEVER, YOU DO NOT HAVE THIS RIGHT TO CURE YOUR DEFAULT MORE THAN THREE TIMES IN ANY CALENDAR YEAR.) • TO ASSERT THE NONEXISTENCE OF A DEFAULT IN ANY FORECLOSURE PROCEEDING OR ANY OTHER LAWSUIT INSTITUTED UNDER THE MORTGAGE DOCUMENTS. • TO ASSERT ANY OTHER DEFENSE YOU BELIEVE YOU MAY HAVE TO SUCH ACTION BY THE LENDER. • TO SEEK PROTECTION UNDER THE FEDERAL BANKRUPTCY LAW. You may also contact a HUD-approved housing counseling agency toll-free at 1 (800) 569-4287 or TDD 1 (800) 877-8339 for the housing counseling agency nearest you. These services are usually free of charge. 't CONSUMER CREDIT COUNSELING AGENCIES SERVICING YOUR COUNTY CAN BE LOCATED ON THE ATTACHED LIST OF COUNSELING AGENCIES LOCATED IN THE STATE OF PENNSYVANIA For certain loans that we service, we are required by Federal Law to inform borrowers that we are attempting to collect a debt and any information obtained will be used for that purpose. This communication does not imply that this is an attempt to collect money from anyone whose debt has been discharged pursuant to the bankruptcy laws of the United States; In such instances, it is intended solely for informational purposes. Para ciertos prestamos que mantenemos somos requeridos por la Ley Federal a informar a prestatarios que procuramos colectar una deuda y que cualquier informacion obtenida sera utilizada para ese proposito. Si usted tiene cualquier pregunta con respecto a esta carta, por favor communiquese con nosotros al numero 877-908-4357. Sincerety, IndyMac Mortgage Services, a Division of One West Bank Loan Resolution Please 1) Make your check payable to IndyMac Mortgage Services, a Division of One West Bank 2) Do not staple your payment to your billing statement 3) Write your loan number on your check or money order 4) Do no include correspondence 5) Do not send Cash 6) Mail your payments to: IndyMac Mortgage Services, a Division of One West Bank P.O. Box 78826 Phoenix, AZ 85062-88026 CONSUMER CREDIT COUNSELING AGENCIES SERVING CUMBERLAND COUNTY Adams County Interfaith CCCS of Western PA Community Action Housing Authorit 2000 Li l Loveship, Inc. y ng estown Road Commission 40 E High Street Harrisburg, PA 17102 of Capital Region 2320 North 5th Street Harrisburg PA 17110 Gettysburg, PA 17325 888.511.2227 1514 Derry Street 717 334 1518 , 717.232.2207 . . Harrisburg, PA 17104 717.232.9757 Meranathe 43 Philadelphia Avenue Waynesboro, PA 17268 717.762.3285 PHFA 211 North Front Street Harrisburg, PA 17110 717.780.3940 800.342.2397 7113 8257 1473 3210 0955 IndyMac Mortgage Services a Division of One West Bank PO Box 9042 Temecula, CA 92589-9042 Send Payments To IndyMac Mortgage Services a Division of One West Bank PO Box 4045 Kalamazoo, MI 49003-4045 Send Correspondence To: IndyMac Mortgage Services a Division of One West Bank PO Bout 4045 Kalamazoo; Ml 49003-4045 PRESORT First-pass Mail U.S. Postage and Fees Paid WSO 2009051372 XC718 011241 7113 8257 1473 3210 0955 KELLY KENES 104 E MARBLE ST MECHANICSBURG, PA 17055 1 159-v 14 ,,11 :C Ic1-; it lll; l;l= lb1 riviv-.11111 i• 1 I 2. Affide Number ? I{ 1 I A. Reo.iv"by Iweaaa PM1N IXee,M e. OaM A Oei'rvery I ? ll llII X eq?rtw d nccoa ' 7113 8257 1473 3210 0953 O. is delivery ao less 6eeram tram Nam ii Yee a YES, erser delivery address below: J 1 d .3. Service Type CERTIFIED MAIL y 4. Restricted Delivery? fEX&V Fpef Yes 1. ArticleAddreuedto: 1 I0. 1? I 'w KELLY KENES + ° V4 E MARBLE ST i MECHANKSBURG, PA 17055-4259 I ?t?aooe 7113'6257 IR73 32117 0M55-72 _ PS Fam 3811, Jarw.ztry 2005 Dwntnstic Retum Receipt I' f fl tt f(f! ! fi f!! i?f f! ! fif?i? t?±ff! f! lffffff i WALMtJ0l72 hrdyAAac Mortgage Se ---- a Division of One %Aksi i PRESORT PO Box 9042 f First-Class Mail --Ternecslla, CA 9MP' U.S. Postage and Fees Paid - WSO 7113 8257 1473 3210 0955 Return Service Requested '711'IIIIII??ltflllltlle'll'IIIIIII'III'l?If11"Itr ll111'1I?II KELLY KENES 104 E MARBLE ST MECHANICSBURG. PA 17055 20090513-72 XC71 a i T 17G NF'C I 0021 Oa O.g/iQ/Ofl KENOS PCTURN TO SENDR TEMPORARILY AWAY 13 C) 1 RETURN To seNDER 4.7 d319-O«.OS?0-10-37 iY ii7.i??9?IFiDaI (?r?lrtr?r?l?r?l?u?t?r?n?t?rl??uu?lt?rr?l?l?rr?n?r?r?jn? PRAECIPE FOR LISTING CASE FOR ARGUMENT n aM Z rnt 0 r TO THE PROTHONOTARY OF CUMBERLAND COUNTY: W, ; 0 r ? Please list the within matter for the next Argument Court. Z _ CD-n OneWest Bank, FSB (Plaintiff) V. Kelly M. Kenes Number 10-1138 CIVIL (Defendant) 1 State Matter to be argued (i.e., Plaintiffs Motion for New Trial, Defendant's demurrer to complaint, etc.) Plaintiff's Preliminary Objections to Defendant's Motion to Dismiss 2. Identify counsel who will argue case: (a) Matthew J. Eshelman, Esq., for Plaintiff P.O. Box 1080 Camp Hill, PA 17001-1080 (b) Kelly Dorris 104 E. Marble Street Mechanicsburg, PA 17055 3 4. I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: DATE: g 1 CHRIS NE L. AM, ESQUIRE Attorney fo 'n McCABE, WEISBERG, & CONWAY, P.C. CHRISTINE L. GRAHAM, ESQUIRE Identification Number: 309480 Attorney for Plaintiff 123 South Broad Street Suite 2080 Philadelphia, PA 19109 (215) 790-1010 OneWest Bank, FBS Cumberland County Court of Common Pleas VS. Kelly M. Kenes Number 10-1138 CIVIL CERTIFICATION OF SERVICE I, CHRISTINE L. GRAHAM, Esquire, hereby certify that a true and correct copy of the within Praecipe for Listing Case for Argument was served on the 29th day of March 2011, by first-class mail, postage prepaid, upon the following: Kelly Dorris 104 E. Marble Street Mechanicsburg, PA 17055 DATE: -S °? (? ' / CHRI INE . GRAHAM, ESQUIRE Attorney laintiff c-? ? C) -t s rnco ?'v r't r. IN THE COURT OF COMMON PLEAS G0 r- .- ? OF CUMBERLAND COUNTY PENNSYLVANIA --+C:) - n FSB CIVIL DIVISION Z, c> ONEWEST BANK CDC) , Plaintiff ' C: V. CASE NO.: 10- 1138 Kelly M. Kenes MOTION TO STRIKE Defendant PLAINTIFF'S PRELIMINARY OBJECTIONS JURY TRIAL DEMANDED MOTION TO STRIKE PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S MOTION TO DISMISS FOR LACK OF JURISDICTION NOW COMES, Kelly M. Dorris, f/k/a Kenes, defendant in the above captioned, who hereby files this Motion to Strike Plaintiffs Preliminary Objections to Defendant's Motion to Dismiss for Lack of Jurisdiction, and in support thereof, states as follows: 1. The issue raised by Defendant in her Motion to Dismiss for Lack of Jurisdiction is a simple one; Plaintiff failed to provide the requisite ACT 91 notice to Defendant prior to commencing an action in Mortgage Foreclosure, and accordingly, the court is/was without jurisdiction to act. 2. The notice requirements pertaining to foreclosure proceedings are clearly jurisdictional. Philadelphia Housing Authority v. Barbour, 592 A.2d 47, 48 (Pa. Super. Ct. 1991) ("[T]he notice requirements pertaining to foreclosure proceedings are jurisdictional, and, where applicable, a failure to comply therewith will deprive a court of jurisdiction to act.") 3. Defendant properly raised this issue (as well as numerous other germane issues) in her Preliminary Objections, all of which were unwarrantedly denied wholesale, without explanation by the Guido Court. Thus, the Guido Court determined its own jurisdiction to act. 4. It is well settled that, when jurisdiction is properly challenged, a Court cannot determine its own jurisdiction; and, jurisdiction can be challenged at anytime, even after final determination. 5. In support of her Motion to Dismiss, Defendant submitted a sworn Affidavit, attesting to the fact that prior to being served by the Cumberland County Sheriff's office, Defendant had, inter alia, never received by any means an Act 91 notice. 6. In fact, Defendant averred in her Affidavit, and in her pleadings, that she never received any form of notice; which implicitly includes, but is not limited to Act 91, Act 6 or any form of default notice, prior to the alleged Plaintiff filing a Complaint in Mortgage Foreclosure. Defendant hereby incorporates by reference, as if set forth at length herein, Defendant's Motion to Dismiss for Lack of Jurisdiction, with attached Affidavit. 7. Notice is a condition precedent, prior to the commencement of a foreclosure action, and the failure to provide denies the court jurisdiction. 8. In 124 of new counsel's Preliminary Objections Plaintiff asserts there is "no requirement under Act 91 that the notice under such act actually be received by any particular mortgagor prior to commencement of legal action, only that the requisite notice be sent by regular and certified mail...." (emphasis added) 9. The aforesaid is absurd on its face, in that, how is a party to be apprised of such notice if, as Defendant has averred in her Affidavit that she, " never received, by any means whatsoever, whether by certified mail, U.S. regular mail, or otherwise, an Act 91 Notice." Or, that she, "never received or seen any evidence that the U.S. Postal service had, in any way, attempted to serve me with the Certified Mail from Plaintiff; or that, "Prior to Plaintiff's Complaint being served,... [Defendant] had no knowledge of what an Act 91 Notice was." (Affidavit, ¶¶ 1-3) 10. In 125, Plaintiff claims in pertinent part that, "In this instance, plaintiff has fully complied with all requirements of Act 91.....by sending proper notice to defendant under such Act by regular and certified mail to defendant's last known address. Attached hereto as Exhibit "D" and Exhibit "E" are true and correct copies of the combined notice.... under such Acts, and the proof of mailing by both regular and certified mail to defendant at the property address." 11. Exhibit "D" is merely a copy of an Act 91 Notice, that is meaningless, as it was never received by Defendant, prior to Plaintiff's Complaint. 12. Exhibit "E" merely contains evidence that something was sent by certified mail, but that evidence as submitted by Plaintiff, clearly shows that Defendant never received it; stating thereupon, "temporarily away" and "return to Sender" 13. The claim that regular mail with proof of mailing is misleading; there is no evidence of proof of mailing of regular mail contained in Plaintiff's exhibit. 14. It is well settled, whenever a claim of mailing is asserted, its proof thereof shall be in the form of a certificate of mailing. Plaintiff provides no certificate of mailing, and Defendant contends, none exists, as to support their claim that Defendant received by regular mail a copy of an Act 91 Notice. 15. Moreover, the mere allegation by Plaintiff, of having mailed by regular mail, upon information and belief of Defendant, is only for the first time claimed in Plaintiffs instant pleading. 16. There appears a facial defect upon the record, where Plaintiff's assertion that Defendant has received an Act 91 Notice, prior to commencement of an action in foreclosure is clearly contravened by the very evidence that Plaintiff presents now or has ever presented in their pleadings, by exhibit or otherwise. 17. There is no evidence that Defendant received an Act 91 Notice by certified mail, as Plaintiff s evidence shows that such mailing was "returned to sender". 18. There is no evidence that Plaintiff sent Defendant an Act 91 Notice by regular mail, with proof of mailing, as again, Plaintiff's own evidence in support thereof , is wanton. 19. There is no evidence, that once Plaintiff was made aware of the fact that Defendant did not receive notice, as evidenced by the certified mail being sent back to Plaintiff, that Plaintiff made any attempt whatsoever to assure that Defendant received notice. WHEREFORE, Defendant respectfully requests that Plaintiffs Preliminary Objections to Defendant's Motion to Dismiss be stricken; and that Defendant's Motion to Dismiss for lack of Jurisdiction be sustained. Respectfully Submitted, Kelly M. rris/pro se 104 E. Marble Street Mechanicsburg, Pa. 17055 (717) 968-2662 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB Plaintiff V. Kelly M. Kenes Defendant CIVIL DIVISION CASE NO.: 10- 1138 MOTION TO STRIKE PLAINTIFF'S PRELIMINARY OBJECTIONS JURY TRIAL DEMANDED VERIFICATION I, Kelly M. Dorris, f/k/a Kelly M. Kenes, Defendant in the above-captioned matter, do hereby aver that the statements made in Defendant's Motion to Strike Plaintiff's Preliminary Objections to Defendant's Motion to Dismiss, are true and correct to the best of her knowledge, information and belief. The undersigned acknowledges that this statement is made subject to 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. ?Amn M. t(,nfiA Kelly M.UDorris/pro se 104 E. Marble Street Mechanicsburg, Pa. 17055 (717) 968-2662 Date: , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ONEWEST BANK, FSB Plaintiff CIVIL DIVISION V. Kelly M. Kenes Defendant CASE NO.: 10- 1138 MOTION TO STRIKE PLAINTIFF'S PRELIMINARY OBJECTIONS JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Kelly M. Dorris, Defendant, in the above-captioned matter, do hereby certify that on April 13, 2011, I caused to be served, a true and correct copy of Defendant's Motion to Strike Plaintiff's Preliminary Objections to Defendant's Motion to Dismiss was performed by hand delivery, upon the Office of Court Administrator of Cumberland County and first class mail, postage prepaid, with proof of mailing, as follows: By Hand Delivery: Office of Court Administrator Room 400 One Courthouse Square, Carlisle, Pa. 17013 By First Class Mail: Andrew L. Markowitz, Esquire McCabe, Weisberg and Conway, P.C. 123 South Broad St., Ste. 2080 Philadelphia, Pa. 19109 (attys. for Plaintiff, Onewest Bank, FSB) By: ' M) ` ) Kelly M. orns/pro se 104 E. Marble Street Mechanicsburg, Pa. 17055 (717) 968-2662 CAIAL PRAECIPE FOR LISTING CASE FOR ARGUMENT C TO THE PROTHONOTARY OF CUMBERLAND COUNTY: rn m -n tzn ? ? -? r- r-z Please list the within matter for the next Argument Court. f? OneWest Bank, FSB CUMBERLAND COUNT (Plaintiff) COURT OF COMMON PLEAS V. Kelly M. Kenes Number 10-1138 CIVIL (Defendant) : 1. State Matter to be argued (i.e., Plaintiff's Motion for New Trial, Defendant's demurrer to complaint, etc.) Plaintiff's Preliminary Objections to Defendant's Motion to Dismiss 2. Identify counsel who will argue case: (a) Nathan C. Wolf, Esq., for Plaintiff 10 West High Street Carlisle, PA 17013 (b) Kelly Dorris 104 E. Marble Street Mechanicsburg, PA 17055 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: . . `?? DATE: ISIS/ Z! / _, 97??Al' CHRISTINE L. GRA SQUIRE Attorney for Plaintiff McCABE, WEISBERG, & CONWAY, P.C. CHRISTINE L. GRAHAM, ESQUIRE Attorney for Plaintiff Identification Number: 309480 123 South Broad Street Suite 2080 Philadelphia, PA 19109 (215) 790-1010 OneWest Bank, FBS Cumberland County Court of Common Pleas VS. Kelly M. Kenes Number 10-1138 CIVIL CERTIFICATION OF SERVICE I, CHRISTINE L. GRAHAM, Esquire, hereby certify that a true and correct copy of the within Praecipe for Listing Case for Argument was served on the 31St day of May 2011, by first- class mail, postage prepaid, and by first-class mail Certified Mail, postage prepaid upon the following: Kelly Dorris 104 E. Marble Street Mechanicsburg, PA 17055 DATE: S 3 - - CHRISTINE L. G ESQUIRE Attorney for Plaintiff #11. ONE WEST BANK, FSB, Plaintiff V. KELLY M. KENES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2010 - 1138 CIVIL TERM ;Z) cam. ?, car IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S MOTION TO DISMISS BEFORE HESS, P.J., GUIDO, JJ. ORDER OF COURT Cn AND NOW, this 15TH day of JUNE, 2011, it is not clear that the Defendant was properly served with Plaintiff's brief, the Plaintiff is directed to relist the matter for argument on July 15, 2011. By e C'o Edward E. uido, J. ? Andrew L. Markowitz, Esquire Christine L. Graham, Esquire 123 South Broad Street, Suite 2080 Philadelphia, Pa. 19109 Kelly M. Dorris 104 East Marble Street Mechanicsburg, Pa. 17055 Court Administrator -in bin p6 sld #12. ONE WEST BANK, FSB, Plaintiff V. KELLY M. KENES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2010 - 1138 CIVIL TERM IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S MOTION TO DISMISS BEFORE OLER, GUIDO, JJ. ORDER OF COURT AND NOW, this 25TH day of JULY, 2011, Plaintiff's Preliminary Objections are SUSTAINED and the Defendant's Motion to Dismiss is STRICKEN. Defendant is directed to answer the complaint within twenty (20) days. , By t IT Edward E. Guido, J. /Christine Graham, Esquire 123 South Broad Street, Suite 2080 Philadelphia, Pa. 19109 ? Kelly M. Dorris 104 East Marble Street Mechanicsburg, Pa. 17055 Court Administrator sld c7? ra - I N _ - j CD 4 T` l COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ONEWEST BANK, FSB Plaintiff V. Kelly M. Kenes Defendant CIVIL DIVISION c CASE NO.: 10- 1138 zrn x= N r- -Vr, x ANSWERS WITH 2: =-n NEW MATTER xa x F5 CA) i ° JURY TRIAL DEMANDED :- 4 W , -e NOTICE TO PLEAD TO: Andrew L. Markowitz, Esquire And/or Christine L. Graham, Esquire McCabe, Weisberg & Conway, P.C. 123 South Broad Street, Suite 2080 Philadelphia, Pa. 19109 (Attorneys for Plaintiff, OneWest Bank, FSB) On behalf of the above-captioned Plaintiff: You are hereby notified to file a written response to Defendant's New Matter within twenty (20) days from the service hereof or a judgment may be entered against you. Date: August 29, 2011 By. , , -1 r-" ? Kelly M. Do s 104 E. Marble Street Mechanicsburg, Pa. 17055 (717) 968-2662 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ONEWEST BANK, FSB Plaintiff V. Kelly M. Kenes Defendant CIVIL DIVISION CASE NO.: 10- 1.138 ANSWERS WITH NEW MATTER JURY TRIAL DEMANDED ANSWERS WITH NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT NOW COMES, Kelly M. Dorris, f/k/a/ Kelly M. Kenes, defendant-in-error (hereinafter, "Defendant") in the above-captioned matter who now Answers with New Matter, Plaintiff's Amended Complaint in Mortgage Foreclosure. Defendant hereby incorporates, by reference, into her Answers with New Matter, Defendant's Preliminary Objections to Plaintiff's Complaint; Defendant's Amended Preliminary Objections to Plaintiff's Amended Preliminary Objections to Plaintiff's Amended Complaint; together with, her affidavit and all supporting motions and documents applicable hereto, as if each and every are fully set forth at length, herein. In further support thereof, Defendant states the following: 1. Admitted in part; Denied in part; It is admitted insofar that OneWest Bank, FSB is named as the plaintiff in this matter. It is denied OneWest Bank, FSB is a true plaintiff, with standing and/or lawful right to have commenced or otherwise proceed against Defendant; or, that "plaintiff's" address is in care of Mancini & Associates, 201A Fairview, Monoca, Pa. 15061. Further, Defendant is without sufficient knowledge or information as to form a belief as to OneWest Bank, FSB, failure to aver whether they are actually a lending institution, as opposed to being or having been a procurer and/or servicer of mortgages on the secondary market; or whether OneWest Bank, FSB, is duly authorized to conduct business within the Commonwealth. Therefore, those assumptions, or any inferences that may be drawn from paragraph one (or elsewhere) are hereby denied. Strict proof to the contrary is hereby demanded at time of trial. 2. Admitted in part; Denied in part; By way of further response, it is admitted Defendant's address is commonly known or otherwise referred to as 104 E. Marble Street, Mechanicsburg, Pennsylvania, 17055, and further, that Defendant- in-error is the recorded owner of said property. It is, however, specifically denied that Defendant is a mortgagor in any way or by any means obligated to Plaintiff. Strict Proof to the contrary is hereby demanded at time of trial. 3. Admitted in part; Denied in part; by way of further response, it is admitted, insofar as upon information and belief, that it appears that a mortgage and assignment were recorded with the Cumberland County Record of Deeds office; and, that it appears purported copies thereof were attached to Plaintiff's Amended Complaint. It is however, specifically denied that Defendant "borrowed" one hundred and eighty-six ($186,000.00) dollars; that Mortgage Electronic Registration Systems, Inc., is or ever was a "lender"; that, OneWest is a real plaintiff, that, OneWest is or ever was a true owner of the mortgage alleged; or that, OneWest possesses either the original promissory or mortgage note(s) upon which to lawfully state ownership; that, Plaintiff's Exhibit "A" does not contain Defendant's actual "wet ink" signature(s), and therefore, there can be no presumption; that the assignment in Plaintiff's Exhibit "B" alleged to evidence ownership is a product of a fraud being perpetrated; and, that the so-called bill of sale proffered by Plaintiff in their Exhibit "C" as further alleging evidence of ownership, is void of any attachment(s) as referenced therein of either a "Master Purchase Agreement" or "Agreement" that Defendant avers, has nothing to do with Defendant's property, and, upon information and belief, is equally being used in furtherance of a fraud. Further, none of the Exhibits proffered by Plaintiff comport with Pa. Rules of Evidence. At no time has Plaintiff prior to commencing this action ever made "Presentment" of the negotiable instrument upon which their specious claims rest, nor is there any evidence submitted by Plaintiff, per certificate, that "Dishonor" has occurred. Defendant has denied that any of the exhibits of Plaintiff actually contain Defendant's "wet ink signature(s)" and any presumption to the contrary is strictly denied. Defendant since on or about March 15, 2010 has actively sought production of the alleged original Promissory and Mortgage Notes, that Plaintiff claims to have in their possession, for inspection, only to rebuffed with Plaintiff's statement in response that, "the notes are unavailable for inspection." This court has unfortunately, Defendant contends, acted with a certain bias and prejudice towards Defendant, in aiding and abetting Plaintiff from having to prove possession, or prove that they actually served the requisite notices prior to commencing their action, upon which, the latter alone, deprived this Court of Jurisdiction. Strict proof to the contrary is hereby demanded at time of trial. 4. Admitted in part; Denied in part; by way of further response, it is admitted that a land description is attached to the Amended Complaint. Defendant is without sufficient knowledge or information to determine if the land description is for, and/or reflects an accurate description of the property located at 104 East Marble Street, Mechanicsburg, Pa. 17055, or, whether the referenced exhibit represents a true and correct copy; therefore, it is denied. Strict proof to the contrary is hereby demanded at time of trial. 5. Denied. By way of further response, it is specifically denied that Defendant is and/or ever was in default to Plaintiff, nor, at any time prior to commencement of Plaintiff s action has Defendant received any Notice whatsoever from Plaintiff or any party, Notice(s) of an alleged default. Nonetheless, Plaintiff s ¶ 5, stating to the effect, that default occurs after failure to make payments for one month, contravenes, at least one Notice that Plaintiff alleges to have sent but was (as supported by Defendant's affidavit) never received, where, prior to acceleration of a note, a parry has to be at least sixty (60) days in default. Moreover, Defendant avers that neither a lawfully executed, original mortgage or promissory note, containing the "wet ink signature(s)" of Defendant exists in the possession Plaintiff, and therefore, there can be no presumption to the contrary. Furthermore, pursuant to Plaintiff s Exhibit "D", the alleged statements of account are not the product of Plaintiff, but are, upon information and belief, generated from a "document mill" believed operating out of the state of New York, that is void, inter alia, of any first hand knowledge of anything. Strict proof to the contrary is hereby demanded at time of trial. 6. Admitted 7. Denied. By way of further response, Defendant is without sufficient information and/or knowledge as to form a belief as to what was sent to "each defendant", and therefore this is denied. Moreover, to the extent that Plaintiff lays claim, pursuant to Exhibit "E" that such "Act letters and proof of mailing" were actually sent, Defendant, as supported by both her affidavit and the so-called evidence of Plaintiff, denies receipt of any notice whatsoever, as otherwise required, prior to Plaintiff commencing their action; and further denies that Plaintiff, complied with the "requirements of those acts." Plaintiff s so-called proof clearly shows that Defendant never received any certified letter, and, despite Plaintiff's claim that there is proof of mailing, presumably via regular mail, such proof simply does not exist. Strict proof to the contrary is hereby demanded at time of trial. 8. Admitted 9. Denied. By way of further response, it is specifically denied that Defendant "either failed to meet the time limitations... or have been determined.. not to qualify for Mortgage Assistance." To the contrary, Defendant never received any notice whatsoever, prior to Plaintiff commencing their action, including, but not limited to an Act6/91 Notice. Notice is a due process consideration that must be met before jurisdiction may be obtained. Defendant has raised the issue of due process and jurisdiction before the court, and, upon information and belief, the Court, in apparent pursuance of aiding and abetting, has totally ignored Defendant's Preliminary Objections, and ultimately, her inherent rights. Strict proof to the contrary is hereby demanded at time of trial. WHEREFORE, Defendant demands for all of the foregoing reasons, that Plaintiff's Amended Complaint in Mortgage Foreclosure be forthwith dismissed, with prejudice. NEW MATTER You are hereby notified to file a written response to Defendant's New Matter within Twenty (20) days from the service hereof or a judgment may be entered against you. 10. Defendant hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length, herein. 11. This court is not properly vested with jurisdiction, nor, in previous matters, ever was, as Plaintiff and their counsel(s) have, and yet continues to perpetrate a massive fraud upon this Court, and this much maligned Defendant-in-error. 12. Plaintiff, by and through their counsel(s) have and yet continue to use the instrumentality of the Court, in furtherance of a scheme to unlawfully deprive Defendant of her property. 13. Though the following issues, inter alia, have been and continue to be raised by Defendant, for which, with the apparent acquiescence of the court, Plaintiff remains defiant, as Plaintiff: a. cannot and/or will not prove they are in actual possession of the alleged original "wet ink" promissory and mortgage notes; b. cannot prove standing; c. cannot prove they are in fact, the real party in interest; d. has failed and even refused, in writing, to make Presentment, or provide any evidence whatsoever that they have applied for or otherwise possess a Certificate of Dishonor; e. cannot prove (as their own limited evidence clearly demonstrates) that the requisite notices required by law to be served as conditions-precedent, including, but not limited to, Notice(s) under Act 6/91, and pursuant to the National Housing Act, 12 U.S.C. § 1701, et. seq., ever occurred, without which, there can be no jurisdiction with the court; f. has failed to exhaust administrative remedies prior to commencement of suit; g. has failed to refute Defendant's rebuttal ofpresumption of signature(s), which now, by law and/or statute, requires Plaintiff to actually produce the original "wet ink" promissory and mortgage note(s) in order to support their claims; and, h. failed to attach the pertinent documents referred to in Plaintiff's specious and/or otherwise suspect "Bill of Sale", as it pertains to an "Agreement" and "Master Purchase Agreement" and/or identify with required specificity, that Defendant's property is in any way, or by any means, inclusive in that Bill of Sale. 14. The nature of Plaintiff and counsel's fraud is apparent, and together with additional claims, are set forth by Defendant below as follows: FRAUD 15. Plaintiff's contends that they have standing, by virtue of three (3) exhibits, that refer to a note and mortgage; an assignment; and a bill of sale; marked as exhibits, "A" "B" and "C", respectively. A. Promissory and Mortgage Notes 16. Plaintiff has by averment, materially represented and in support, has submitted as Exhibit "A" a purported copy of a promissory note and mortgage note, alleged to be executed by Defendant. 17. Plaintiff contends, in 13 that plaintiff " .. Is now the current owner of said mortgage and the assignment evidencing this ownership is recorded..". (emphasis added) 18. Plaintiff goes on to state in ¶ 3 that Plaintiff was the true owner of the note and the mortgage at the time the foreclosure was filed." (emphasis added) 19. No matter how artfully couched, Plaintiff nonetheless concedes, and/or otherwise alleges, that they are now only the current owner of the mortgage note, by assignment, but was, allegedly, the true owner of both the promissory and mortgage note. 20. If we are to accept Plaintiff's averments on the face of it, Plaintiff only holds a mortgage note, as evidenced by an assignment; and accordingly, by Plaintiff's own averment, there is more than a mere suggestion that the alleged promissory and mortgage notes have been separated. 21. Defendant has from the beginning, and throughout these proceedings, contested whether Plaintiff holds any original, "wet ink" note(s) that bear the true signature(s) of Defendant. 22. Defendant has pled a rebuttal to any presumption that the "notes" Plaintiff alleges to hold, bear her true signature(s). 23. Plaintiff offered in its Amended Complaint, Defendant's ability to dispute the debt; Defendant disputed the debt and further sought Presentment, with a time and place to inspect the original documents/instruments that Plaintiff claims to possess. 24. Not only has Defendant been repeatedly denied Presentment, but further, in written reply to Defendant's request, Plaintiff stated that, "the notes are not available for inspection." 25. Defendant continues to aver that Plaintiff does not possess the requisite original "wet ink" notes that would allow them to proceed in any manner, against this Defendant. 26. Assuming arguendo that Plaintiff holds anything, ¶ 3 is telling as to what was, as opposed to, is now, in that clearly there appears sufficient reason to believe that, whatever note(s) Plaintiff allegedly claims to possess, they are by their own tacit admission, now separated. 27. It is well-settled, "The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity." Carpenter v. Longan, 83 US 271 (U.S. Supreme Ct. 1873 at 274. 28. At best, Plaintiff is proceeding on the premise they have, in their possession, a mortgage note, alleged to be executed by Defendant. 29. Plaintiff further posits this on the premise of an assignment of the mortgage; however, as determined by the U.S. Supreme Court in 1873, which is still the Supreme law of the land today, an assignment of the mortgage alone is a nullity; that, absent actual possession of the promissory note, the mortgage note is wholly void of any lawful effect as to enforce it. 30. Defendant contends that Plaintiff is proceeding falsely, or with such recklessness as to whether or not the averment(s) that imply actual possession of the promissory note (or mortgage note) is true or not. 31. Defendant has actively sought the production of the original promissory note, by Presentment and otherwise, all of which Plaintiff has refused to produce, by stating, in writing, that the "notes are not available for inspection", suggesting, at minimum, a willful and continual concealment of facts and of evidence. 32. This court has, and continues to rely upon what Defendant contends is a material misrepresentation of the facts, and evidence, by Plaintiff, that are resulting in the continual detriment, harm and injury of Defendant. 33. Simply put, Defendant demands to see, and inspect, that is, "put up or shut up" the actual original, genuine "wet ink" notes that are being used by Plaintiff against Defendant. 34. This court's continued reliance upon Plaintiff's (mis)representation(s), absent, verifying and authenticating "facts" upon which they dare proceed, "facts" that Defendant has repeatedly contested, will be the proximate and sole cause of irreparable harm and injury suffered by the Defendant. Wherefore, Defendant respectfully requests that this Court direct Plaintiff to now produce, for inspection, by expert for determination of authenticity, the original "wet ink" promissory and mortgage note(s); or in the alternative, should Plaintiff fail to prove they are in actual possession genuine, authentic, "wet ink" promissory and/or mortgage note(s), that Plaintiff's Amended Complaint be dismissed. B. Assignment of Mortgage 35. Defendant hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length herein. 36. Plaintiff has materially averred and/or otherwise represented that they possess a lawful assignment of the mortgage note. Plaintiff attaches as Exhibit "B" an assignment of the Mortgage from Mortgage Electronic Registration Systems, Inc., (MERS) to Plaintiff as evidencing this alleged assignment. 37. The foregoing assignment is signed by Charmagne Williams, as Vice president for MERS as nominee of IndyMac Bank, FSB. 38. Defendant has previously pled that Charmagne Williams is not a Vice President as otherwise alleged, but is in fact no more than an Auditor II clerk for IndyMac Bank. 39. Defendant has an advance copy of an affidavit from expert witness, Lynn Szymoniak, Esquire; a nationally recognized expert in fraudulent mortgage documents. 40. On or about April 3, 2011, Ms. Szymoniak was featured in a segment on 60 Minutes, attesting to the fraudulent nature of many mortgage-related documents that were/are literally milled out by what has come to be referred to as "Robo- Signers". 41. These "robo-signers" are employed, (often by outside firms) to create signature(s) of alleged authority, such as Vice President, or Assistant Secretary (and alike) upon "missing documents" and/or create the appearance of chain of title. 42. Virtually every robo-signer lacks any authority or any first hand knowledge of what they are signing to. They are, in virtually every case, a clerk who is paid to mass produce signatures upon fraudulent documents. 43. Attached hereto, is a true and correct copy of Expert Lynn Szymoniak's Affidavit, attesting to the fact that at no material time is/was Charmagne Williams a Vice President for MERS; and that, Ms. Williams has so signed, on behalf of other nominees with assumed authority and in a capacity she simply does not possess. Defendant's Expert Affidavit is attached hereupon as Exhibit "D-1". 44. In addition thereto, it should be noted that on or about April 13, 2011 Mortgage Electronic Registration Systems, Inc., (MERS) and MERSCORP, have entered and stipulated unto, a voluntary Consent Order, jointly promulgated and issued by the United States of America Department of the Treasury Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, and the Federal Housing Finance Agency. 45. This Consent Order recognizes inter alia, the pervasively unsafe, and unsound business practices committed by MERS/MERSCORP with regards to their present financial, operational, compliance, legal and reputational risks; and further, determined that the aforesaid, failed to exercise appropriate oversight, management supervision, and corporate governance, and have failed to devote adequate financial, staffing, training, and legal resources, coupled to, its failure to establish and maintain adequate internal controls, policies, and procedures, compliance risk management, and internal audits and reporting requirements with respect to the administration and delivery of its services. 46. Concurrent with Defendant's Answers with New Matter, Defendant has filed a Request for Judicial Notice be taken by this court of the aforesaid Consent Order, a true and correct copy of which, is attached to that request. Defendant hereby incorporates by reference, as if set forth at length herein, Defendant's Request for Judicial Notice, and the Consent Order for which such request is made. 47. Plaintiff has made a material misrepresentation as it pertains to the assignment of Mortgage, as executed by Charmagne Williams, who not only acted without lawful authority, but acted as both a grantor and a grantee in doing so. 48. Plaintiff made this misrepresentation knowing it to be false, or in the alternative, with such reckless disregard as to whether it was true or false, in hope of this Court would rely upon it, as fact, which this court as heretofore done. 49. This reliance is a proximate cause of harm and injury now suffered by the Defendant in having to defend herself that, if left unchecked, will result in irreparable harm and injury should Plaintiff be allowed to succeed. 50. If anything so cripples the housing and mortgage industry, it is the overwhelming fact that virtually all of the major Banks and/or lending institutions, including, but not limited to the Plaintiff, have engaged in a wholesale fraud, by employing (or possibly, willfully and wantonly turning a blind eye and deaf ear) unauthorized individuals who mass-manufacture signatures on mortgage and related documents, to the sole deprivation of innumerable individuals and their respective property rights. Wherefore, Defendant respectfully requests that Plaintiff's Amended Complaint be dismissed forthwith, for the fraudulent nature of the assignment upon which Plaintiff asserts it claim. C. Bill of Sale 51. Defendant hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length herein. 52. Plaintiff has made a material representation as to the verity of a certain Bill of Sale, as supporting their claims to right of ownership, however, this dearth document, on the face of it, provides absolutely nothing to support any claim that Defendant's property is and/or was actually conveyed by and/or through this document. 53. The Bill of Sale references two (2) separate documents; an "Agreement" and a "Master Purchase Agreement", neither of which are attached thereto. 54. Defendant has sought the production, via her Preliminary Objections, of the "Agreement" and "Master Purchase Agreement", which neither court addressed in denying her Preliminary Objections, and certainly, the Plaintiff has not come forth to reveal. 55. There is nothing of record to even suggest what was allegedly (specifically) sold to Plaintiff, or whether there is even a reference to Defendant's property, much less, a conveyance thereof. 56. As previously pled by Defendant and once more raised above, Plaintiff in 13 of their Amended Complaint clearly intimates that they currently hold a mortgage by assignment; that assignment now having been identified above as a fraudulent document; and that, Plaintiff WAS in possession of the promissory and mortgage notes at time of filing foreclosure, which buttresses Defendant's position, that at minimum, Plaintiff is certainly not in possession of it now. 57. Nonetheless, with respect to the Bill of Sale, though more than ample room is provided for, this Bill of Sale is not even on letterhead, nor does the signature of George Alexander, as the purported "Manager Structured Transactions" for the Federal Deposit Insurance Corporation (FDIC) or the notary who alleged attests thereto, appear thereon. 58. Defendant has previously pled that, upon information and belief, George Alexander is and/or was a Branch Manager, and possibly now a Vice President of Plaintiff in California. 59. While Defendant, who is without sufficient information and knowledge to form a firm opinion as to whether the Bill of Sale is a product of fraud, based on the expert affidavit pertaining to the "Assignment" which is a fraud, coupled to the fact that Defendant denies that the alleged signatures contained on Plaintiff's Exhibit "A", relating to the promissory and mortgage note(s) are not her true signature(s); and, the fact that Plaintiff refuses to produce, what they claim to possess, taken together, the Bill of Sale as well as all of Plaintiff's averments and assignments beg for closer scrutiny and disclosure. Wherefore, Defendant respectfully requests that this Court direct Plaintiff to produce incontrovertible proof that the Bill of Sale, together with the Agreement and Master Purchase Agreement upon which the Bill is predicated upon, be produced; and that further, that bill of Sale and its attachments prove that Defendant's property is and/or was clearly made part thereof, or in the alternative, Should Plaintiff failed to do so, it is respectfully requested that this Court dismiss, with prejudice, Plaintiff s Amended Complaint. CONCLUSION 60. Defendant hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length herein. 61. In Summary, This Court does not have nor ever had Jurisdiction to hear Plaintiff's action as Plaintiff failed to observe condition(s) precedent, relating to due process notices required to be served, by law, prior to commencing their action. 62. Defendant has pled that Plaintiff does not have in their possession the original, genuine "wet ink" promissory or mortgage note(s). 63. Plaintiff has and yet continues to refuse Defendant the ability to see, and have inspected the very note(s) they claim to have or had possessed; Plaintiff having stated further, "Tree Notes are not available for inspection." 64. That, the exhibits produced by Plaintiff, do not contain Defendant's actual signature(s), and as such, there is no presumption that such signature(s) are genuine; and, where presumption does not exist, the party asserting must bring forth the actual original documents upon which they relied. 65. Plaintiff tacitly admits that they are not in possession of the alleged original promissory note. 66. Plaintiff relies on having an alleged assignment of the mortgage that is clearly a product of fraud. (see attached expert affidavit) 67. Assuming for the sake of argument that such original notes actually exist, Plaintiff admits that the notes were separated and Defendant contends, whatever notes Plaintiff is relying upon, remain separated and therefore, as to the Mortgage note, "if' such note exists, it is unenforceable with regards to Defendant's property. 68. Plaintiffs Bill of Sale is totally void of even a reference to Defendant's property as being part of the sale. 69. Plaintiff has failed to attach either the "Agreement" or "Master Purchase Agreement" to support their so-called "Bill of Sale". Defendant submits, that even if they did, neither would specifically implicate Defendant's property. 70. Plaintiff has and yet continues to use the instrumentality of the court in furtherance of a scheme to deprive Defendant of her lawful right to property. 71. This Court, Defendant believes sadly, has heretofore, acted with a measure impropriety, and with a certain distinct partiality favoring Plaintiff, that has and yet continues to prejudice this Defendant. WHEREFORE, for all the foregoing reasons and more, Defendant respectfully requests that Defendant be granted the relief as requested herein together with any and all other relief that this Court may deem just and proper. Respectfully Submitted, vU?IJ Kel y M. D s 104 E. Marble Street Mechanicsburg, Pa. 17055 (717) 968-2662 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ONEWEST BANK, FSB Plaintiff CIVIL DIVISION V. Kelly M. Kenes Defendant CASE NO.: 10- 1138 ANSWERS WITH NEW MATTER JURY TRIAL DEMANDED VERIFICATION I, Kelly M. Dorris, Defendant in the above-captioned matter, do hereby aver that the statements made in Defendant's Answers with New Matter, are true and correct to the best of her knowledge, information and belief. The undersigned acknowledges that this statement is made subject to 18 Pa.C.S. § 4904, relating to unworn falsification to authorities. August 29, 2011 By: vqgm q III, M% Kelly 1' . Dorris 104 E. Marble Street Mechanicsburg, Pa. 17055 (717) 968-2662 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ONEWEST BANK, FSB, CASE No. 10-1138 CIVIL TERM MORTGAGE FORECLOSURE Plaintiff, V. KELLY M. KENES, Defendant. AFFIDAVIT OF LYNN E. SZYMONIAK, ESQ. AS DEFENDANT'S EXPERT STATE OF FLORIDA COUNTY OF PALM BEACH LYNN E. SZYMONIAK, Esq., having been duly sworn, deposes and states that if sworn as a witness she can testify competently to the facts stated in this affidavit, based upon her personal knowledge: 1. I am an adult citizen of the United States, and have resided in Palm Beach County, Florida since 1979. 2. I am an attorney and was admitted to the Florida Bar in 1980. My business address is: The Szymoniak Firm, P.A., The Metropolitan, PH2- 05, 403 S. Sapodilla Avenue, West Palm Beach, Florida 33401. Telephone: (561) 630-6928. I have practiced law in Palm Beach County for 31 years. I am a graduate of Bryn Mawr College in Bryn Mawr, Pennsylvania, and Villanova Law School in Villanova, Pennsylvania. 3. For the past twenty years, my practice has primarily been in cases involving white-collar crime allegations, particularly, in representing major insurance companies that have been defrauded by large policyholders. 4. In the last ten years, I have also served as an expert witness in civil and criminal cases. In criminal cases, I have served as an expert witness for the United States of America and the State of California. I have testified at trial In two federal court cases in Jacksonville, Florida, where the allegations involved false and fabricated documents including fabricated insurance policies and certificates of insurance. The two Jacksonville cases were United States v. Thomas King, Case No. 3:05-cr-52-1-99MMH, Middle District of Florida, Jacksonville Division and United States v. Donald Touchet, et al., Case No. 3:2007cr00090, Middle District of Florida, Jacksonville Division. My designation as an expert and the use of my testimony were affirmed in an 11th Circuit opinion, United States v. Robert D. Jennings, Case No. 08-13434 (11th Cir. Jan. 5, 2010). I also submitted an expert opinion for the government in a New York Northern District federal case that ended in a guilty plea: United States v. James Kernan, Case No. 5:2008cr00061. I have also been designated an expert on insurance regulatory matters in Florida and testified at trial in April, 2010, in a federal criminal trial involving financial guaranty insurance, United States v. Michael Zapetis, et al., Case No. 8:2006cr00026, Middle District of Florida, Tampa Division. This case also resulted in a guilty verdict. I have also worked as a consultant/expert for the South 2 Carolina Department of Consumer Affairs and the South Carolina Department of Insurance. I also submitted an expert opinion in a California state case involving fraudulent insurance practices and documents that resulted in a guilty plea in March, 2010, the People of the State of California v. Mitchell Zogob, Orange County, California. I have testified as an expert in a foreclosure case in Harris County, Texas. I have also served as an expert and consultant for the South Carolina Department of Insurance and for the South Carolina Department of Consumer Affairs. 5. I have written several articles on mortgage foreclosures and residential mortgage-backed securitized trusts, including the following: "An Officer of Too Many Banks," Fraud Digest, January 14, 2010; "Too Many Jobs," Fraud Digest, January 19, 2010; "Mortgage Assignments As Evidence of Fraud," Fraud Digest, February 9, 2010; "Inroads on Foreclosure Fraud by Mortgage Servicers" Fraud Digest, April 7, 2010; "Mass-Produced Affidavits Filed by Foreclosure Firms," Fraud Digest, April 13, 2010; "How Lender Processing Services, Inc. Solves Deutsche Bank's Missing Paperwork Problem in Foreclosures," Fraud Digest, April 16, 2010 and "The Real Employers of the Signers of Mortgage Assignments to Trusts," Fraud Digest, May 14, 2010. My findings regarding forged and fabricated mortgage documents have also been reported on a segment of the television program "60 Minutes" that aired on April 3, 2011. 6. I was formerly a Certified Fraud Examiner, and have had nine hours training by the National Association of Certified Fraud Examiners in identifying forged and fabricated documents, in a course taught by retired agents of the FBI. 3 7. I have examined a copy of the Mortgage Assignment filed in the foreclosure action presently before this Court, a copy of which is attached as Exhibit A. 8. Regarding the Assignment marked Exhibit A, dated (notarized) on February 17, 2010, the GRANTOR/ASSIGNOR is identified as Mortgage Electronic Registration Systems, Inc., as Nominee for IndyMac Bank, FSB. The GRANTEE is identified as Onewest Bank, FSB. This Assignment was signed by Chamagne Williams who is identified as the Assistant Vice President of Mortgage Electronic Registration Systems, Inc. as Nominee for IndyMac Bank, FSB. The Assignment was notarized in Travis County, Texas. 9. I have examined over 5,000 other Mortgage Assignments, including over 500 Assignments that were notarized in Travis County, Texas and signed by Chamagne Williams. From my examination of these documents and my knowledge of the mortgage servicing industry, I have concluded that the Assignment in this case is fraudulent for the reasons set forth in paragraphs 10-15 below. 10. Although Chamagne Williams signs as an officer of Mortgage Electronic Registration Systems, Inc., she was actually employed by IndyMac Mortgage Services, Inc., a mortgage servicing company in Travis County, Texas. 11. Chamagne Williams uses many different job titles when signing mortgage-related documents, often using different titles on the same day, including: 4 Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Acoustic Home Loans; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Aegis Wholesale Corporation; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for American Brokers Conduit; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Beach First National Bank; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Credit Suisse Financial Corp.; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for CTX Mortgage Company, LLC; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for DHI Mortgage Company, Ltd.; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Express Capital Lending; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for First Magnus Financial Corporation; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for First Meridian Mortgage; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Flick Mortgage Investors, Inc.; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Home Loan Center, Inc. d/b/a LendingTree Loans; 5 Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Impac Funding Corp., d/b/a Impac Lending Group; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for IndyMac Bank, FSB; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for LoanCity; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Mortgagelt, Inc.; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for NetBank, a Federal Savings Bank; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for New American Funding, a California Corporation; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Opteum Financial Services, LLC; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Quicken Loans, Inc.; Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for Taylor, Bean & Whitaker; and Assistant Vice President, Mortgage Electronic Registration Systems, Inc., as Nominee for TM Capital, Inc. Copies of examples of Assignments where Williams signs as an officer of many other entities are attached hereto as Exhibit B. 12. This pattern of signing many different job titles is consistent with the practices of other employees of mortgage servicing companies. I have written two articles on this practice: "An Officer of Too Many Banks" (January 14, 2010, Fraud Digest) and "Too Many Jobs" (January 19, 2010, Fraud Digest). This practice has also been questioned by various courts, particularly by the Honorable Arthur 6 Schack in Kings County, New York. Commenting on another individual who signs as an officer of many different banks and mortgage companies, Judge Arthur Schack, Supreme Court, Kings County, has described a banker as "a milliner's delight by virtue of the number of hats she wears." 13. Based on my knowledge of the mortgage industry, IndyMac Mortgage Services, Inc. is a mortgage services company whose services include "drafting missing documents" to facilitate foreclosures. Burnett and other employees from this office sign thousands of documents each week as needed In foreclosure cases, without any personal knowledge of the documents. 14. On the vast majority of cases, Williams does not disclose when she signs Mortgage Assignments as a representative of the GRANTOR that she is actually working for the GRANTEE. Certain courts have recognized that such disclosure should be made. On May 11, 2010, Judge Arthur J. Schack, Supreme Court, Kings County, New York, addressed the issue of whether the signer of an Assignment was working for the grantor or grantee. The case involved a mortgage- backed securitized trust, SG Mortgage Securities Asset Backed Certificates, Series 2006-FRE2. U.S. Bank, N.A. served as Trustee for the SG Trust. See U.S. Bank, N.A. v. Emmanuel, 2010 NY Slip Op 50819 (u), Supreme Court, Kings County, decided May 11, 2010. In that case, the trust inexplicably did not produce a mortgage assignment from the original lender to the securities company to the trust. Instead, the assignment relied upon by the plaintiff/trust was one executed by Elpiniki Bechakas as assistant secretary and vice president of MERS, as nominee for Freemont. Judge Schack 7 determined sua sponte that Bechakas was an associate in the law offices of Steven J. Baum, the firm representing the trustee and trust. Judge Schack recognized that the Baum firm was thus working for both the GRANTOR and GRANTEE. Judge Schack wrote: "The Court is concerned that the concurrent representation by Steven J. Baum, P.C. of both assignor MFRS, as nominee for FREMONT, and assignee plaintiff U.S. BANK is a conflict of interest, in violation of 22 NYCRR § 1200.0 (Rules of Professional Conduct, effective April 1, 2009) Rule 1.7, "Conflict of Interest: Current Clients." The foreclosure was denied. As in the Emmanuel case, Chamagne Williams often signs on behalf of the GRANTOR, using a MERS title, while actually working on behalf of the GRANTEE Bank. 15. Many courts have now recognized that documents produced by mortgage servicing companies are unreliable when such documents are signed en masse by robo-signers, clerical employees who sign without any actual knowledge, expertise, training and often without having even read the documents they sign. These mass-produced documents have caused courts in Florida, Maryland, New Jersey and New York to implement rules to safeguard the Courts and litigants from unreliable documents submitted in foreclosures. On January 19, 2011, Sheila Bair, the head of the FDIC, called for the establishment of a foreclosure claims commission "to provide remedies for borrowers harmed by past practices." On May 12, 2011, Bair testified before the U.S. Senate Banking Committee that "Flawed mortgage banking processes have potentially infected millions of foreclosures, and the damages to be assessed against these operations could be significant and take years to materialize." 8 16. For all of the reasons set forth above, it is my opinion that the Mortgage Assignment in this case, Exhibit A, is fraudulent. FURTHER AFFIANT SAYETH NOT. LYNN E. SZYM AK, ESQ. STATE OF FLORIDA COUNTY OF PALM BEACH Before me, the undersigned authority, on this 25th day of August, 2011, personally appeared Lynn E. Szymoniak, who is personally known to me to be the person whose name is subscribed to the foregoing instrument and swore to me that the information herein is true and that she executed the document for the purposes contained therein. ROBERT V. BROWNLEE, NOTARY PUBLIC *A.k ?raoaar??e1a ,?r IXPW8: Ci*w 1,2011 '+oc7cfF" BaodidThaBwalNoMryB?nkN 9 EXHIBIT A /.Y' After recording, return to: DenW J. Afbnchl, l:s9dre Manchl 6 Amdates 201 A FAfRWEW DRIVE A A40NAC4, PA IM61 AS&GAIMENT OF WKWOME FOR VALUE RECEIVED, the underbigted Anowr, MORTOA E WJ TRONIC REGISTRATION SYSTEMS, INC. AS NOMWE FOR WYMAC BANK, FOB, does hereby grant, bargain, sell, assign, transfer and convey to the following Assignee: ONEWEST BANK, FOB all of /assignor s right, tffie, and Interest in and to that owt& Mort~ or Deed of Trust, vvftioh encumbers the real property more pwdculatty dwxbd therein, WW W vM aA the Indebtedness rurrentiy due and to become due under the germs of arty prMlstwry tote or evidence of indebtedness secured thereby. This aseignmetit is ntpde vrAtlxrut recourse to Assignor and without representatIon or wanwity by AMiigror, expreseed or Implied. Said Montgage/Deed of Trust, darted 092WMT, recorded 10/0212007 in the Land Records of Cumberland County, Pennsytvatnia, at instrument # 2007a7044, In the amount of $166,000.00. Original Mortgagor: KELLY M. KENES Original Mortgagee: MORTGAGE ELECTRONIC REMTRAIM SYSTEMS, INC. AS NOMINEE FOR WDYMAC BANK, FSB Property Addr'etre: 104 EAST MARBLE STREET, MECHANICSBURG, PA 17W5 Murdelpailty: BOROUGH OF MECHANICSBURG Tax / Parcel #: 17.24.0787-164 TO HAVE AND TO HOLD the same unto said Assignee(s) and their heirs, executors, successors and assigns, former, subject only to the terms and condff m of the above described deed of trust IN TESTIMONY HEREOF, the u 'Orsig hear on T day t# 010, caused 'these to be signed by its witness Noterti AtteeWon on Succeeding pop MORT REAIBTRATiON NO AS 100MM1LrE FOR MI Fee Pikftd Namr E STATE OF COUNTY OF to wit: 1 HEREBY CERTIFY that on this day of 2010, before me, the subscriber, a Notary Public of the Stair of In and for the County aforesaid, personally appearr+ed the of MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, NO. AS NOUN E FOR INDYMAC BANK, FSB, the corporation that executed the forgoing Instrument and acknmAedged the said in*ument to be the irso and voluntary aot and deed of said corporatbn, for the uses aid purposes therein mentioned, and on oath stated that hefthe was authorized to execute sold instrument. IN WMASS WHEREOF, I have hereunto set my hand and alfted my official seat the day and year first above written. Notauy?1 My comrnis?an expires: ti V V e af. EXHIBIT B , Charlie Groan, Loa Cannty Clark vv'va/avav ur vo:V4 !T! o! Clock UISbZSBbDRT Circuit Court, RAC. b*aa ¢20.00 Derpaty Pow by: Robert & KsbL% Hs% Record A Rasa b K*mw A: Aunktsm, P.A. 8201 P46 n Road, Ste.3000 PhWhAIM PL 33324 Tokpboae:(934)382-3486 TddmWmik: (934)382,5390 Loan No.; 1006130031 RECORD FIRST ABmGNMENT OF MORTGAGE YABDIYALL Afd var7mwo PA =m. MAT MORTGAGt BUCTRONZC RZGIS 7l I" SWUM b7taC AS 140MMU FOR BOME IJlNDb = OR AMWBCA RwMi% or keeled at 1819 Lbrary Shed, Suite 380, Rosim VA 20190 herein ded wool as am aamipmy fir aad in oooddradon of the acres of S I AS Dolla mad odw good ad vskublo coaddeadm as mamtpt of rrltiob is hanby &*Ww edpd, doe bmby Srud. bwpls, self, amsip, tatam 0 and sd over cob UW MAC SAW F.S.b, maWipg or bossed at: M E. WWm Shoot, Pasmdsss. CA 91101 book dmiprMd a dw mw*Apo, as by CORRY Book fNMUMRNT 2005000036736, and Pegs gb Y at p y as %Dowd: UNIT NUMBER 4-K Of THE CARDINAL COVE PHASE 1. SECTION OF PEPPIRTRBE POMM A CONDOMINIUM COMMUNITY, ACCORDING TO THE DECLARATION THliP". RICORDBD IN O.R. BOOK 1030, PAOIS 301 AND ANY AMENDMENTS THERM, OF THE PUBLIC RECORDS OF LIB COUNTY, FLORIDA. AND TOMMIM WITH AN UNDIVIDED 01IEREST IN IWN COMMON ELEMENTS APPURTENANT THERUM. wooth t with the note and aseh and every other obliption deomf eel ht said nwrtpp and the tamW duo aul to became duo themsn Thk doeuatsat has been execubd and M bebls rooerdad of ads o> onmallaa and nleeorisiWo an se 1pnoo of the m*od mwWp %tkb took puce on or bAn J* S. UK TO HAVE AND TO HOLD rho sane mw the said oW pee, its auaeaeon and asups forever, but wbhom roeourse on the underd8ned. lot Oftm r Wiermetf, de said ANWW Iao Ireteuale ad bb bond sad and or cared dwss pmmassm to be stpd by its proper ompoidm offices o d ifs torpor m meat o be biro affixed ais say of ?3, 2010. Signed In the praoaos of, 'IRONIC Rfi i 1WATION I NC PIMINbZi FOR BOMB ATTEST: \?-- _ \. %,/VV Avtk ttt We bsrssidellt PRINT NAME: 9"8a0 WiRiramm wmNESS: Prw Vase: WTTNlb83:./$0 ¦ l1/1. KL e1 Prim Nam: fu nrbm -My V lS STATE OF two COUNTY OF MIE: AmistrsVke1Mamidaot PERSON Y APPEARED BWMB MB.Ile aadeaigaed 496wity fa sad hr tte stbrmW covey mod sdeed? d a y o f . m ? 0, arilhip s4 jtaiaiiolion. ma wields easel bdSM m0 ass that (on b AaMlast Vbs 14uwo*ard amt for std on bdwlf of BIORTGAGS RIJM:TIp pW agG16TRATIM V WZU&% INC AS NOMMU FOIL HOME UNDUE OF AMOS" mod as its at w d dead (s)bo wm *W too show std lEmp ft ins wm W, after Hut hsvW4 bear duly anbmiasd by MORTGAGi RLRCIIWNIC RBOUrMATION SYSTM%W WC AS NOMINRR FOR BOMB IJINDRRS OF AMbtI WA o do so. w ?am my Mad aid ofrwW seat in the Comsy and SMb hat albtmW thin" 1l dry of "n,•.... 2010 `ttt Y PUBt.IC OWBIC09917KK ?•?` tOBF( Ua t av? ?ip?C•• xty?? *PATE ?ry y? a"_ JOSEPH E. SUITE, CLERK OS TB8 cIRcuIT CO[TRT - SAINT LUCI>0 COUNTY FILE # 3387735 OR HOOK 3125 PADS 2684, Recorded 09/14/2009 at 09:44 AM Ptaprad br. Robwt 3. Kabvik Bp. Raaaad A Rd= to hams & AuoofalM P.A. 8301 PatorsP K1111.3900 Pbmbibm, FL 333U 00110404CM AT TUB RCMGBCMN OF THB SOUTH RKBTT OF WAY OF SOUTHERN AVIIHIM AND THIS WELT RKW OP NAY OP OIUMM IDOULRVARD (AWAOLEANDBIE AVENIft TMXM RUN 3O T MMY ON LAID WEST IMU OF NAY OF OLBANDERBEK "ARD (AAC/AOLBANDW AVXWJM A DISTANCB OF F!ffiT;i7lB? WEST OFNa OLSAMM =AYP A OF 6.00 T13 8 RIAY Y TARAILEL SAID RK11TT WAY OF SOUTHItN A A ANCB OF 7 PWM NOR IWM MI 0, THENCE RUl IDt>fTIII?LY P SiAB31/!!61 RXWTOF WAY OF MMANM DWASVARD (AWA OLBA#i M AVOW AIMTAHM OF 10.76 FW, THR" RUN WEBTXRLY PARA= W M SAD SOUTH R1f3HT OF WAY OF SOVrdERN AVENUE A DISTANCE OP 19.16 PUM, THE RUN NORTHMMY PARAIAML WITH LAW WEST RIUM OP WAY OP OL MMIR BOULSVARD (AWA OLEANDER AVENUE) AD93TAWMOP28.34 PMlT; THM4MRUNBASISRLY PARAUMLNTTII SAID SOUM M WT OF NAY OF SoUriM N AVI3NUB A DISTANCE OF 3144 FEET TO THE POINT OF BBOBQNINO. I DT0936591 RWft or1oaalad at 151t LIBtARY dadwoft4 as dw allipar. fa[ aid in asoWm doY ottis m of ZIA* DAw pod mad ?ababb caaaidac -11 d?anoarpohabiolisbatMryaobooaiadpd,dosbaaablrpd,baytia,gait.asaiWhan1 adoral vw mba MkWM B MFJLL tsdit a boated at M W. Pamaar Hlia D AarN?? 7R7V b@Fsb doriSnMad s1 dr , du aaatl/gs atsbd by 9BARDGAY 111 O 10DA, tsaslisd L ST. I AM Ow ay, Florida. at hoot 2647, oad Pya 273. aiaowo6efiuR drs 1xaq+b moan pudo k* U - It , as fidi ma SUBJECT PROPERTY ALSO DKLUDBS TWO PARK= SPAM BRCLUBIVBLY FOR TIM U38 OF TIM IffiJNANTS OF TM Mr. SAID PARKEOIf SPACES An DESIONATM 22005-0, Ott 3125 P 2605 !o'?_---' ...- gTA,18 OF __ .,noal?RS?p''? nVY09'l60t INSTr4YcNM#: 2009350226, BK: 19525 P0: 530 PM: 530 - 530 10/21/2009 at 09:08:29 AM, DBPQTY CLSRK:CB0YKINS Pat Frank,Clark of tha Circuit Court Hillaborough County T" MS M NOT A s m ` m, Mmc-df ? F ? ED C 0 PY AHg1 MIMMMORMAM I MW.4 LMBMlr7H=PRfiSXMS: wwir AMMSKAIQMgm Bic f %Mlw „d1 p3rovie..,VA331tlbareiadwipwedntbmonmlemer,RraadYmeaoW?ooloeefdw .aROf 31.60 DmgwmadeMwgsodaodtmlrmhbammddordba,MmmmaipafWlimbimbwdrymmkaowladgM,dma Empty Crodag.. Audi. TX UM bsais dedrA bd s lbommiIpw Mw aetl?patadW by MARY SLPUMM Pfl TMM AID JIMMY P11T71K{BR weomde I K" 14 3M6 In H Coudy, Plo" d voOK I66M ed PMM M7 Mwetmkq pro pMuly wmw pwdo dm ft dwwbW r bgewm: LOT 6, RIVUWOOD OAKS, AS PER PLAT TNBREOP, PACONDED IN PLAT HOOK 96, PAGK 26, Or THE PUBLIC RELOADS OF HILLSBOROUGH COUNTY, FLORIDA. Totpd w whb tbo one and o" nd w.wy dbw obNptioa I III d in tumid mad gte RwRey dus aed b baooRis dm anwe TO HAVE AND TO HOW die nme UM the maid ndtlnM, to awoetwn mod anigM IMeew, but widiout mwum an die tdwdgwd. In PS m Vbowr (i lbemoid Anip w bw bwaudo m K his hmad mod n d or aRmd Ions pmmp b be Aped by ho prapw owpwmlo oiliew and ho owponde wd b bo bmrolo @Mxed We %A day of MORTGAUB 11I,13ICFROM R®IH MATiON Svgnndk I®ASNOM MFM Or- DRA AMERICAN OF FLORIDA A AwYodLMdBfpNolgr sipw in pwaaaoa Wf7NES Print WITIwS `? •fI? Prhd Nano STATEOF Tun COUNTY OF Tmvb Y APPNARBD BEI'O ME do aadwmipdmdbwky im nd Rr the mlbwmoW Donny rd mmotm, ea Ob do & of_ Sims "yj sow Who adoaowlo s 101"tbmt(m)1mim ng{ mmdwbobpon dylu I bneerbn proridod MidwA[ mdou,MmtibrmedmRbbalfoflgORTOAGSEf.39C711Of@C RgiOINMI RV8Y87RMg,RVCDRPORATEDA8NOMOfgiMRAMNRTMORTQAMf 4C.,DRA ARRtlCAN MOWMAM NETWORK OP>1 A)MA mmml n bm mad &W Wwww tdd the abode mwl 16eegoing immbaend, dw Ibd Wing bon 44 mWwfi l by MOM'OAAE UWrAOMC KIKMIMRATTON bVV ME, VOCORPORATED AS NOM IM POR AMN&T MMTGMA, AIC„ DRA AMERICAN MOIMAOE NRTWORK OF VLOMA to do w. WITNESS ny bm W and *WaW oMi in On Caaly rd Shft kA i S7R 004M7 INSTRUMZNT#: 2009256932, BK: 19397 PG: 829 PGS: 829 - 830 08/06/2009 at 01:21:11 PM, DEPUTY CLERK:LPERTUIS Pat Frank,Clark of the Circuit Court Hillsborough County k --= aT ? --= ? --= Fn--? C 0 [F)y Pre(? ILW? I ? k ? LL:: ?)) Shapiro & Fishman, LLP/Barbsra A Couture -10004 N. Dale Mabry Highway, Suite 112 Tampa, FL 33618 S&F No.:.09-142798 This area above this line is for the use of recording official ASSIGNMENT OF MORTGAGE Mortgage Eimftome Registration Systems, Inc., as Nominee for Market Street Mortgage Corporation, ("Assignor"), C0 Shapiro & Fishman, LLP,10004 N. Dale Mabry Highway, Suite 112, Tampa, FL 33618, in consideration from OneWest Bank, FSB, ("Assignee-), GO Shapiro & Fishman, LLP,10004 N. Dale Mabry Highway, Suite 112, Tampa, FL 33618, has granted, bargained, sold, assigned, transferred and set over, and by these press does grant, bargain, sell, t?s 6 and set over unto Assignee the follonring described Mortgage(s) recorded m the Public Records of d Msboraogh County, State of Florida, together with the note of obligation described in said Mortgage(s), and the money due and tD become, due thereon, with intarest as therein provided. Date of Mortgage: August 18, 2006 Mortgage Recording Date: August 24, 2006 Clerk's File Number: 2006.410988 Book Number: 16871 Page Number.. 0392 Legal Description: LOT 1, BLOCK 7, OF TOWNHOMES OF LAKEVIEW VILLAGE, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 104, PAGES 244 THROUGH 247, OF THE PUBLIC RECORDS OF HILLSBOROUGH COUNTY, FLORIDA. Original Mortgagors: Maria B. Quintana, a Single Person Assignor hereby acknowledges that this assignment is being recorded as a formality pursuant to requirements set forth under § 701.02, but that such be the intaxxfm of the Bk 29397 Pq 830 PIM "I cry a es by 'v f the such delivery occurred on oorxnxe I prior to date of any litigation, hereto for, and that date be the delivery date has been established by the expressed fatention of the parties, herem. This Assignment of Mortgage is made without recourse against Assignor. M WffNESS WHERRBOF, Assignor has caused these presents to be exm* d this clay of J4 , 2009. -'T M 'c Registration Systems, Inc, as Nominee for Market Street Mortgage C By: A (CORPORATE SEAL) STATE OF TY ] COUNTY OF WMW%W- I I HBREBY CERTIFY, That on this day personally appeared before me, an officer duly authorized to administer oaths and take admowled is of the above refimmmed duty authorized signatories of qMqW? WMme Who are personalty Renown to me and did take an oath and who ate to ne weft kn mm to be the parsons described herein and who excaded the fie "aing Assignment of Mortgage and duly acdcnowledged before me and executed the same for the purposes therein expressed as the act and deed of said corporation. IN VIMVJS WHEREOF, I have herecmto set my hand and affixed my official id Co State, this day of _ ZI 2009 "Name of Notary: _ Commission NO. My Commission Expires: LORM M. MOREII NON" Puw. Sue of T ' (SEAL) IN8TRUb0W#: 2009410922, IM: 19612 PO: 705 P(a8: 705 - 705 12/10/2009 at 02:16:05 PM, DRPUwx CLERR:ADANIRL Pat Frank,Clerk of the Circuit Court Hillsborough County l% r THHS M NOT A 0&2*r Q D D D D D DDY Raadmfb: (9S4) rn.sou Awwaim oP Mow"at IOVO ," A MAPTAAffil PA!I AMM rp(r atloaMdY13938p4?dpAs/,1t3i0VArr,YA 211iZMo4d4}reda? Ole wiser, (orwd is aorWewtiw oPOw ww of t1A0 DaEw and abx pei atl wdlrbbeerYratbea, ? wodpl ?Lo oPw6iabislwr?ydoKlwnbYM?.MrM1o.YM.???rr?ttwQwlswruWo? wddulorbWWaeM&Wdw 3lmdP.rI CA9lMlm*imdwkmla=dw dw sww%vp by PORMOM)L ONAWYAlfWLYOW-LBQIeOrdr'hmm3 A2M la HEirbmwyl Oeuttly. piatbda d 10010 IOM NW PA(M Ile aoworbsirB Wo pkV" maro p11111M ty dredW w bitowa: TRR NUT 34.00 r6RT Or LOT 6, BLOCK 1, OP RRATWM LUM UNIT 24, PUM I, kCCOMING TO Tw PLAT TMMOP AS MCORDZD IN PLRT BOOR 60, PAGR 33, OP TR6 PUBLIC RBCM3 Or RILLBBOROUDR LOOM, rLORIDA. bowwA cud wallcud scary 0dW oWigYioO drrwfbrd b said mWWV cud 1ho m0ry due aad to due limmou TO HAVE AND TO HOLD Die moo uab Ow said wfdnaey ib moom0w ad ass pa hmw, butwiOm6lao0aras 0a the oodmaApwd. In 17BUar Mlvaisf, *A MW Aarfpw br hwwab rl Me had cud wY wamd 6m b be dpwdy its prePer o I I odfaarcud Ra mi , wd b bs bmat0 &ffixod 16b -dq of iJ 200. R8MTAATtON TED AS N MiNBE FOR Wj?j? ARPINT Ml vinhwidw Siped in Oro pwaasw oP _j7 N7PiiU68 Prot STATE OF TOM COiINPY OF 11" PERSONA Y APPR?BD Id 60 I is irW4 rd brtz abn=W ooo* od skik ob dds Oa dpw 9 YL6Ynq,}risdkAkm,bow iawweacub paawaftyisoaw b mo?rhw ?adm? dedbmad,alWbsk?OWi?rwaoahWifad'ilpRrOAtiiQ.lCtRONIC 1tRCRiPRATNgU Sy1PDIW, WOOblDDATip ASNOMUM PORQMCM LOA^ WC. a d w ib ed sad dyad (aya4aa+tled 6abws as Itrgotai idraaaat, oft Eel bw ksbiwi ft milmlaaty NOW49A(M Rt.1Cr&GM JWAMATlATM SY , 124COMP RATM AN 140W? K&QUK3= WANG, RUC. b do w WMESS my had cud 0awd aed fa the Cowry cud Sub bbl aWre" Ods 3 dry oP wlay 2009 am 0. Ar» lii, SON 0947144 5? IN8T%tV%9TNMi: 2009394416, MC: 1958f PG: 1793 PM: 1793 - 1793 11/24/2009 at 11:26:49 AN, DEPUTY CUUMADAHM Pat Frank,Cl.ork of the Circuit Court Eillaborough County ,ax, !4 M NOT A 8201 OPY T 3 TFED LIC9 Low No. 3M)SOM AssiGNwmT of MORTGAGz STATE OF Tom COUNTY OF ' hogis 1CNOWAU &MY BY TMXSN P*XSWM rHAP MORTGAGR l J=2OIMIC RRCISPRATtiON SYffrWW& INC., AS NOMINRR MR SODTROTAR FUNDING, LLC Raiding or km*W at 1818 WBRARY STREET SUM 300 RBSTON, VA 20190 bomb dodgoawd as the aselpoe, for sod in consideration of do ram of $1.00 Doliar end odor good and vaiwbls consideration, the -a" of which le hereby aoknawfedged, does hereby gra tt, bssgahr, ssll, mW% troAft ad sat over owe INAYMAC FRDRRAL DANK, F,B.B.6 AS SUCCUNNOR IN RrfM WT TO I1MVV MAC DANK, F.B.B. reaifta bamod at: 2900 HNORANZA C ROM MO AUFM. TX 7$758 brain designated es the raigms% the m atpge canceled by DANK P CABBY, eeoerded in HIL MMOt1OH Canty, Florida, at Book 16924, and Page 1607. atarmbetiog the property mm pots aarly deacribod m t3elbws: LOT I 1 OF WBIJJNOTON ACCORDING TO THS MAP OR PLAT THBIIBOF RRCORDBD IN PLAT BOOK 49, PAGE 39, OP THE PUBLIC RBCORDS OF MUSBOROUCH oourfcY, FLORIDA umeNrer with the am and each and every other obli$sfim described m mW mortgage and the mosey dues and to becoere duo thereon The Assignment is effective es of PeMnary 25, 2$89, TO HAVE AND TO HOLD rho am the aW aerlgnes, Ns aaocamors and assigns forever, but without rooaase on the undervigamd, in Wkwer Wbowf, the said Assignm has horeatko so his bed and seal or caused them presents to be signed by its proper corporate offloom and its oorporato not to be boreto affixed the &_ dry of hill 2009. Signed in the planar op ATTEST; PERSONALLY APPEARED HHPORB W do mrdraigssd arfbordy in and Ibr 8m aforonid wuW and state, an ft the of 200% within my}ruallorion, the wA m aaored _j_ day and an bWndfot8$ORTGACE ZLNC TAC RR(:IBT8ATN71•i r VIC.. AS NOUH49i FOR SOIT USTAR FUNDING, LLC lad m ka set cad dood (On uom*W As above cad for v io8 insleommeak after that having boa tidy aathotimed by MORTGAGR fTL[Cramw RRmrRAum tiY zm% v4c, AS NOMDMK FOR SOUTHBTAR FIAQMC, LLC to do so. WITNESS my hand ad official acct in the Coaoty and State he al6tomew 66 A_ day of hh5 2009 NIOTARY PUSUC so OF so OWg09 01076 a tyceaaF? curia:: Prim NOW&- TN8T9tV8NTi: 2009415878, BK: 19619 Pia: 230 Pt28: 230 - 230 12/15/2009 at 11:39:16 AM, DSPfM'X CLERK:ASOLT86DrN Pat Frank,Clerk of the Circuit Court Hillaborough County ?S:) NOT A W-NTFED COPY ASSlGM1llEKF O!? MoaTCAGa KIVOWALL MANNY7HWSPRE&SIM: THAT MOWTGAG6 XLt6CPRONIC RZGISTRATION SYWMMS, INC, AS NOMIN99 FOR INDYMAC DANK, X.B.B. Reddlag a baled at _ 80 E. WALNUT STREET PAWDENk CA 91101 h ram demiyrded nibs mWw. for ad in aamidaadiom of the cam of SIAO DoWr mad od w pod ad vdaabb oorrWaadwr, the rooeipl of wtich b haebysdmwbdpd4 doss hwaby Saint, I g' sA aWp, InaRr ad at over vale DRUTSCIIB DANK NATIONAL TRIMT COMPANY. AS TRUSTKL OF TH19 MOMS 6QU17Y MORTGAGK LOAN ABSIi'I SAO= TRUBT=W MW 2995-D, BOMB MWITY MORTGAGR LOAN ABBCP-TACKED CUTIFICAT14 UR1; V"U 2MD UNDiR THS POOUMG AND SUVWANG AGR9049M DAT5D DRC 1, 2W ra* 6 - ar located at:- iM E ST Ah10[iLallf & SANTA ANA. CAR heroin daipalyd a do aaligam the aastIS I aeollbd by HERMAN FLUITT IR. AND Et.OWW FWnT. roanllod in HILLSBOROUGH Caftly, Florida, at Book 16676, mW Page 100. twomibaing the pm" more Fly dowrNmd as fblbws: UNIT NO 11-104 OF CROSSWYNDB CONDOMINIUM, A CONDOMINIUM ACODRDUKI TO THE DBMARATION OF CONDOMINIUM TIUW". AS RECORDED IN OFMAL UCORDS BOOK 15774 AT PAGE 0503. AND ANY FURTHER AMBNDMWM THERETO. OF THU PUBLIC WORDS OF HS.LSBOROU(iH C"TY, FLORIDA. TOGVrHRR WITH AN UNDIVIDED INTERENT IN THE COMMON ELEMENTS APPURTENANT TI IERKM. wpd w wilb the nob and cub cad ovary a0m obl*dm do ribed is mW modpgo and the money dw and to ba cam due dwom This Anownarrl Is efkcdvs as of Ocnlm 12,2M. TO HAVE AND TO HOLD the care tmb tle said ssaigam ie ewaamne and assigns forever. but without racourm on We mdwalgoed. Is plnaw IFiwwf, the aid Assignor has Ilrreualo ad his head and an[ or cased them proao?on In be signod by Ne propw oorponb ottioen orld Rs aarpomb cal b to dacto aAizad this deyof D , 2009. Signed in the Fromm of ATTEST: mcocaMurray v - Aaahaiaed h3iyralory WtTNB33: ?r Print Name: Yklablsatloa WFfN838: Print Name: Cite _ Iltatn?soa STATE OF _ COUNTY OF AG` [LRC WWIC iRWJMATNAV (5ww_ASNOMINrx FOR DANK, F.S.D. PRINT NAME: CbMWO W TITLE AathwlsadSigrlarory PERSONALLY APP D BEFORE ME,1he ondamigacd allgwhy in and bar the sbressm county and state, an tbir ft-'L dry of QCL , 2009, wkhb my jarledidien, do _ trued boom a ymim . .win aobmwbwbw b an that hlM in _AtAl?atl0eiailay , and that fa a" TOW /4)9_ 2gaw . COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ONEWEST BANK, FSB Plaintiff V. Kelly M. Kenes Defendant CIVIL DIVISION CASE NO.: 10- 1138 ANSWERS WITH NEW MATTER JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Kelly M. Dorris, Defendant in the above-captioned matter, do hereby certify that on August 29, 20111 caused to be served, a true and correct copy of Defendant's Answers with New Matter, by first class mail, postage prepaid as follows: Andrew L. Markowitz, Esquire And/or Christine L. Graham, Esquire McCabe, Weisberg & Conway, P.C. 123 South Broad Street, Suite 2080 Philadelphia, Pa. 19109 r By: Y&OT011 Kelly M. Dorris 104 E. Marble Street Mechanicsburg, Pa. 17055 (717) 968-2662 c-s COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLV , r*z ZO -71 ONEWEST BANK, FSB CIVIL DIVISION zX --,r- M Plaintiff -tn W '1_4 • O- C ra V. V . CASE NO.: 10- 1138. ?? , -- '' ca ?; c w p Kelly M. Kenes JUDICIAL NOTICE w ? Defendant 225 Pa. Rule 201(d) JURY TRIAL DEMANDED DEFENDANT'S REQUEST FOR THIS COURT TO TAKE JUDICIAL NOTICE NOW COMES. Defendant, Kelly M. Dorris who respectfully requests that this Honorable Court take Judicial Notice. The above-captioned case involves, inter alia, a certain mortgage assignment, alleged to be executed by someone claiming to be an officer of Mortgage Electronic Registration Systems, Inc., (MERS). Defendant hereby moves this Honorable Court to take Judicial Notice of a Consent Order, a true and correct copy of which is attached hereto, entered jointly by: The United States Department of the Treasury, Comptroller of the Currency; Board of Governors of the Federal Reserve Bank System; the Federal Deposit Insurance Corporation; the Office of Thrift Supervision; and, the Federal Housing Finance Agency, against MERSCORP and MERS on April 13, 2011. This Consent Order expressly addresses the issues in the case regarding deficiencies and other irregularities and/or improper procedures, in the preparation of documents by employees of mortgage servicing companies acting as "certifying officers" of MERS. Respectfully Submitted, le kMr r is 104 E. Marble Street Mechanicsburg, Pa. 17055 (717) 968-2662 UNITED STATES OF AMERICA DEPARTMENT OF THE TREASURY COMPTROLLER OF THE CURRENCY WASHINGTON, D.C. BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM WASHINGTON, D.C. FEDERAL DEPOSIT INSURANCE CORPORATION WASINGTON, D.C. OFFICE OF THRIFT SUPERVISION WASHINGTON, D.C. FEDERAL HOUSING FINANCE AGENCY WASHINGTON, D.C. In the Matter of: MERSCORP, Inc., and the Mortgage Electronic Registration Systems, Inc., Reston, Virginia CONSENT ORDER OCC No. AA-EC-11-20 Board of Governors Docket Nos. 11-051-B-SC-1, 11-051-B-SC-2 FDIC-11-194b OTS No. 11-040 FHFA No. EAP-11-01 The Comptroller of the Currency of the United States of America ("Comptroller"), through his national bank examiners and other staff of the Office of the Comptroller of the Currency ("OCC"), the Board of Governors of the Federal Reserve System, Washington, D.C. ("Board of Governors'), the Federal Deposit Insurance Corporation ("FDIC"), the Office of Thrift Supervision C"OTS"), and the Federal Housing Finance Agency ("FHFA") (collectively the "Agencies"), as part of an interagency horizontal review of major residential mortgage servicers and mortgage service providers, have conducted an examination of MERSCORP, Inc. ("MERSCORP"), and of its wholly-owned subsidiary corporation, Mortgage Electronic Registration Systems, Inc., ("MFRS), both of which provide various services to financial institutions related to tracking and registering residential mortgage ownership and servicing, acting as mortgagee of record in the capacity of nominee for lenders, and initiating foreclosure actions. The Agencies have identified certain deficiencies and unsafe or unsound practices by MERS and MERSCORP that present financial, operational, compliance, legal and reputational risks to MERSCORP and MERS, and to the participating Members- Members are institutions that use MERSCORP's and MERS' services and have agreed to abide by MERSCORP's Rules of Membership (the "Rules"). The Members include depository institutions regularly examined by, or subsidiaries or affiliates of depository institutions subject to examination by the OCC, the Board of Governors, the FDIC, the OTS, and other appropriate Federal banking agencies, as defined by subsection 1(b)(1) of the Bank Service Company Act, 12 U.S.C. § 1861(b)(1), and Fannie Mae and Freddie Mac, which are subject to examination by the FHFA, (collectively "Examined Members"). The Agencies have informed MERS and MERSCORP of the findings resulting from the examination. MERS and MERSCORP have begun implementing procedures to remediate the practices addressed in this Order. MERS and MERSCORP, by and through their duly elected and acting Boards of Directors (collectively the "Boards"), have executed a "Stipulation and Consent to the Issuance of a Consent Order," dated April 13, 2011 ("Stipulation and Consent"), that is accepted by the Agencies. By this Stipulation and Consent, which is incorporated by reference, MFRS and MERSCORP have consented to the issuance of this Consent Cease and Desist Order ("Order"), pursuant to 12 U.S.C. §§ 1818(b), 1867(c)-(d), and 4631, by the Agencies, consistent with the MFRS Consent Order _2_ Stipulation and Consent. MERS and MERSCORP have committed to take all necessary and appropriate steps to remedy the deficiencies and unsafe or unsound practices identified by the Agencies. ARTICLE I JURISDICTION For purposes of this Consent Order: (1) MERS and MERSCORP are providers of services to Examined Members within the meaning of 12 U.S.C. § 1867(c). (2) MERS and MERSCORP are each an "institution-affiliated party" within the meaning of 12 U.S.C. § 1813(u) by virtue of MERS acting as agent for lenders (who include Examined Members) with respect to serving as mortgagee in a nominee capacity for the lender, and are each an "entity-affiliated party" within the meaning of 12 U.S.C. § 4502(11) by virtue of MERS acting as agent for Fannie Mae and Freddie Mac with respect to serving as mortgagee in a nominee capacity for the owner of residential mortgage loans. (3) The OCC, the Board of Governors, the OTS, and the FDIC examined the services provided by MERS and MERSCORP to Examined Members pursuant to the provisions of 12 U.S.C. § 1867(c), on behalf of themselves and other appropriate Federal banking agencies as defined in 12 U.S.C. § 1861(b)(1). (4) The Agencies have authority to enter into this Consent Oder pursuant to 12 U.S.C. §§ 1818(b), 1867(c)-(d? and 4631. -3- ARTICLE II AGENCIES' FINDINGS The Agencies find, and MERS and MERSCORP neither admit nor deny, the following: (1) MERS is a wholly-owned subsidiary of MERSCORP. MERSCORP's shareholders include federally regulated financial institutions that own and/or service residential mortgages, including Examined Members, and other primary and secondary mortgage industry participants. (2) MERSCORP operates a national electronic registry that tracks beneficial ownership interests and servicing rights associated with residential mortgage loans and any changes in those interests or rights. There are approximately 5,000 participating Members, of which 3,000 are residential mortgage servicers. Members register loans and report transfers, foreclosures, and other changes to the status of residential mortgage loans on the MERS System. There are currently approximately 31 million active residential mortgage loans registered on the MERS System Examined Members receive a substantial portion of the services provided by MERSCORP and MERS. (3) MERS serves as mortgagee of record and nominee for the participating Members in local land records. MERS takes action as mortgagee through documents executed by "certifying offers" of MFRS. MERS has designated these individuals, who are officers or employees of Members or certain third-parties who have contractual relationships with Members, as officers of MERS. By virtue of these designations, the certifying officers execute legal documents in the name of MERS, such as mortgage assignments and hen releases. him Cow Or&r -4- (4) In connection with services provided to Examined Members related to tracking, and registering residential mortgage loans and initiating foreclosures ("residential mortgage and foreclosure-related services"), MERS and MERSCORP: (a) have failed to exercise appropriate oversight, management supervision and corporate governance, and have failed to devote adequate financial, staffmg, training, and legal resources to ensure proper administration and delivery of services to Examined Members; and (b) have failed to establish and maintain adequate internal controls, policies, and procedures, compliance risk management, and internal audit and reporting requirements with respect to the administration and delivery of services to Examined Members. (5) By reason of the conduct set forth above, MERS and MERSCORP engaged in unsafe or unsound practices that expose them and Examined Members to unacceptable operational, compliance, legal, and reputational risks. Pursuant to the authority vested in them by the Federal Deposit Insurance Act, as amended, 12 U.S.C. §§ 1818(b), the Bank Service Company Act, 12 U.S.C. § 1867(c)-(d), and the Federal Housing Enterprises Financial Safety and Soundness Act, 12 U.S.C. § 4631, the Agencies hereby ORDER that: ARTICLE III COMPLIANCE COMMITTEE (1) Within twenty (20) days of this Order, the Boards of Directors of MERSCORP and MERS (the "Boards") shall each establish and thereafter maintain a Compliance Committee of at least three (3) directors, of which at least two (2) may not be employees or officers of MERS or MERSCORP or any of their subsidiaries or affiliates. In the event of a change of the -5- membership, the name of any new committee member shall be submitted to the OCC Deputy Comptroller for Large Bank Supervision ("Deputy Comptroller'). The Compliance Committee shall be responsible for monitoring and coordinating MERS' and MERSCORP's compliance with the terms and provisions of this Order. The Compliance Committee shall meet at least monthly and maintain minutes of its meetings. (2) Within ninety (90) days of this Order, and within thirty (30) days of the end of each calendar quarter thereafter, the Compliance Committee shall submit a written progress report to the Boards setting forth in detail its actions taken to comply with each Article of this Consent Order, and the results and status of those actions. (3) The Boards shall forward a copy of the Compliance Committee's report, with any additional comments by the Boards, to the Deputy Comptroller and the OCC Examiner-m- Charge within ten (10) days of receiving such report. ARTICLE IV ACTION PLAN (1) Within ninety (90) days of this Order, MERS and MERSCORP shall jointly develop and submit to the Deputy Comptroller an acceptable plan containing a complete description of the actions that are necessary and appropriate to achieve compliance with the terms and provisions of this Order ("Action Plan"), as well as the resources to be devoted to the planned actions, with respect to services provided to Examined Members. In the event the Deputy Comptroller requests MERS or MERSCORP to revise the Action Plan, they shall immediately make the requested revisions and resubmit the Action Plan to the Deputy Comptroller. Following acceptance of the Action Plan by the Deputy Comptroller, MERS and -6- MERSCORP shall not take any action that would constitute a significant deviation from, or material change to the requirements of the Action Plan, or this Order, unless and until MERS or MERSCORP have received a prior written determination of no supervisory objection from the Deputy Comptroller. (2) The Boards shall ensure that MERS and MERSCORP achieve and thereafter maintain compliance with this Order, including, without limitation, successful implementation of the Action Plan. The Boards shall fiuther ensure that, upon implementation of the Action Plan, MERS and MERSCORP achieve and maintain effective residential mortgage and foreclosure- related services on behalf of Examined Members, as well as associated risk management, compliance, quality control, audit, training, staffmg, and related fimctions. In order to comply with these requirements, the Boards shall: (a) require the timely reporting by MERS and MERSCORP management of such actions taken to comply with this Order and/or directed by either Bead to be taken pursuant to this Order, (b) follow-up on any compliance issues with such actions in a timely and appropriate manner, and (c) require corrective action be taken in a timely manner for any non- compliance with such actions. (3) The Action Plan shall address, at a minimum (a) the capability of the Boards and senior management to ensure that MERS and MERSCORP arc operated in a safe and sound manner in accordance with applicable laws, regulations and requirements of this Order, MERS coesew order -7- (b) development and implementation of a strategic plan to include a comprehensive review of business operations, including the risks associated with each business line, and recommendations to implement the strategic plan; (c) consistent with the strategic plan, development and implementation of a financial plan to ensure that MERSCORP and MERS have adequate financial strength to support business operations related to Examined Members. The financial plan, at a minimum, shall (i) any need for additional capital, including the amount and source of capital; (ii) the identification, measurement, monitoring and control of funding and liquidity risk; and (iii) a profit and budget plan to include specific goals to reduce discretionary expenses and improve and sustain earnings, as well as maintain adequate reserves for contingency risks and liabilities; (d) development and implementation of a comprehensive litigation strategy to effectively manage lawsuits and legal challenges involving MERS and MERSCORP, regardless of whether MERSCORP or MERS is a named party, including early identification and tracking of such lawsuits and challenges; (e) development and implementation of a communication plan to communicate effectively and in a timely manner with MERSCORP's shareholders, Members including Examined Members, and relevant external parties; (f) development and implementation of a compliance and quality assurance program for ensuring that Examined Members implement and follow all of the Rules, including -8- adherence to the requirements set forth in MERS, Announcement 2011-0 1, dated February 16, 2011; (g) development and implementation of a plan to ensure that MERS certifying officers are transitioned expeditiously onto the Corporate Resolution Management System ("CRMS") in accordance with MERS' current certifying officer policy and process; (h) development and implementation of appropriate standards to maintain separation of corporate functions between MERS and MERSCORP; (i) review of the effectiveness of the Rules, and related Procedures, Terms and Conditions to determine what, if any, additions, amendments, or deletions are appropriate; 0) development and implementation of enhanced information reporting practices to senior management from lower levels of each organization, and from senior management to the Boards to ensure that significant issues are properly identified and escalated, and that corporate actions are considered, taken in a timely fashion, ands properly documented; (k) any Matter Requiring Attention in the OCC Supervisory Letter No. MERS 2011-0 1, dated January 19, 2011, that addresses an issue that is not otherwise covered by provisions of this Order, and (1) development of contingency plans to address issues that arise with respect to any of the foregoing elements of the Action Plan, including plans that address operational continuity issues in the normal course of business and in a stressed environment. (4) The Action Plan shall specify timelines for completion of each of the requirements of this Order. The timelines in the Action Plan shall be consistent with any deadlines set forth in this Order. -9- ARTICLE V BOARD AND MANAGEMENT SUPERVISION (1) Within thirty (30) days from the effective date of this Order, MERSCORP and MERS shall engage an independent third party, acceptable to the Deputy Comptroller, with the appropriate expertise and qualifications to analyze and assess the directors, officers, management and staffing needs with respect to any and all services provided by MERSCORP and MERS to Examined Members, in order to operate MERS and MERSCORP in a safe and sound manner and achieve compliance with this Order. The engagement shall provide that the required analysis and assessment be completed and summarized in a written report to the Boards ("Management Report") within sixty (60) days of the third party's engagement, with a copy simultaneously delivered to the Deputy Comptroller. At a minimum, the Management Report shall: (a) identify the type and number of positions needed appropriately to manage and supervise all services provided to Examined Members, including, but not limited to: (i) the orderly and expeditious transitioning of Examined Members onto the CRMS; (ii) the enhanced communication and coordination with Examined Members required by the Communications Plan; and (iii) registration or tracking systems, assignment and/or foreclosure services, detailing any vacancies and additional staffing needs with appropriate consideration to the scope and complexity of the services provided, for the number of Examined Members and MERS certifying officers who will need to complete the certification process, and for the size of the portfolios for which these services are provided; (b) identify the type and number of officer and staff positions needed to ensure compliance with all applicable federal and state laws and regulations and material -10- contractual requirements, as well as to implement any newly established or revised plans, policies, procedures, processes and systems required by this Order, detailing any vacancies, additional needs and/or unit re-alignments required with appropriate consideration to the scope and complexity of the services provided as well as the size of the portfolios for which these services are provided; (c) identify and address the appropriateness of the duties, responsibilities, authority and accountability of each professional position, giving due consideration to the relevant knowledge, skills, abilities, and experience of the incumbent (if any); (d) present a clear and concise description of the relevant knowledge, skills, abilities, and experience necessary for each officer position, including delegations of authority and performance objectives, including whether the incumbent (if any) has the requisite knowledge, skills, abilities, and experience for such position; (e) recommend a plan to recruit and retain directors, officers, management and staff consistent with the independent third party's analysis and assessment; (f) recommend any reorganization or realignment of directors, officers, management and staff consistent with the independent third party's analysis and assessment; (g) recommend any additional training and development needs as well as a plan to provide such training and development to appropriate directors, officers, management and staff; and (h) recommend procedures to periodically review and update the Management Plan required by subparagraph (3) below and assess the performance of all directors, officers, management and staff. -11- (2) MERSCORP and MERS shall provide a copy of the proposed engagement letter or contract with the third party to the Deputy Comptroller for review and non-objection prior to entering into the engagement. (3) Within thirty (30) days of receipt of the Management Report, MERSCORP and MERS shall jointly develop a written plan of action (the' Management Plan') in response to each recommendation contained in the Management Report and a time frame for completing each action. The Management Plan and any subsequent modification(s) thereto shall be submitted to the Deputy Comptroller for review and non-objection. (4) The Boards shall immediately establish a schedule of regular Board meetings to be held at least once every calendar quarter. ARTICLE VI COMMUNICATIONS RELATING TO LEGAL PROCEEDINGS (1) Within sixty (60) days of this Order, MERS and MERSCORP shall jointly develop and submit to the Deputy Comptroller a plan for communicating with Members concerning significant legal proceedings or issues. The plan shall include: (a) a process for notifying and informing Examined Members concerning significant legal proceedings and legal issues that relate to the functioning of MERS, MERSCORP, or the Examined Members' interests with respect to MERS or MERSCORP, including, but not limited to significant favorable or adverse decisions, within a short time period after the issue arises or a decision is issued; -12- (b) a process that provides sufficient incentives for Members to inform MERSCORP and MERS of the filing of all lawsuits brought in MERS' name or to which MERS is a named party, and periodically update MERS concerning the status of such lawsuit; (c) a process to track all legal proceedings brought in MERS' name, in which MERS is a named party, or which involve legal issues that affect the interests of MFRS, MERSCORP, or Examined Members with respect to MERSCORP and MERS; (d) a process to ensure an appropriate response by MERS to legal proceedings brought in MERS' name, in which MERS is a named party, or which involve legal issues that affect the interests of MERS, MERSCORP, or Examined Members with respect to MERSCORP and MERS; (e) proposed revisions as necessary to the MERSCORP Rules to implement these processes. (2) Within thirty (30) days of this Order, MERSCORP and MERS shall establish Legal Risk Subcommittees of the Boards, which shall make regular reports to the Boards on outstanding legal issues and pending litigation that affect the interests of MERS, MERSCORP, and Examined Members with respect to MERSCORP and MERS, and provides analysis and recommendations concerning litigation contingency reserves. ARTICLE VII CERTIFYING OFFICERS (1) Within sixty (60) days of this order, MERS shall prepare and submit a plan to the Deputy Comptroller to strengthen its governance processes applicable to MERS certifying officers with respect to Examined Members. The plan shall include, but not be limited to: -13- (a) policies and processes to designate or certify individuals as authorized MERS certifying officers, and that only such individuals act in such capacity; (b) policies, processes and resources to track the identity and activities of MERS certifying officers and to ensure their compliance with the Rules and related requirements, including the requirements of the CRMS; (c) policies, processes and resources to register third-party MERS certifying officers who are acting for Examined Members; (d) policies, processes and resources to ensure the adequacy and appropriateness of training for certifying officers; (e) policies, processes, and resources to ensure that Examined Members comply with MERS Membership Rule 8 and MERS Announcement 2011-01; and (f) policies, processes, and resources to ensure that Examined Members and third parties can quickly and accurately determine if specific individuals are designated to act as authorized MERS certifying officers. ARTICLE VIII QUALITY ASSURANCE AND DATA INTEGRITY (1) within sixty (60) days of this Order, MERS and MERSCORP shall jointly prepare and submit a plan to the Deputy Controller to strengthen its policies, processes, resources and controls for data standards and quality assmrance of information submitted to and contained in MERSCORP data systems. The plan shall include, but not be limited to: (a) an assessment and determination of which data elements are necessary to MERS and MERSCORP operations and should be mandatory reporting requirements MERS came* o,ar -14- ("mandatory reporting fields") for Examined Members. The plan shall include elimination of collection of existing data elements currently reported by Members that are not reasonably related to MERS or MERSCORP operations; (b) policies, processes and resources to ensure the accuracy and reliability of data reported to MERSCORP, including but not limited to system-to-system reconciliations of all MERS mandatory reporting fields, frequent capture of all reject/warning reports associated with registrations, transfers, and status updates on open-item aging reports, and an accurate determination of foreclosures pending in MERS' name; (c) adoption or revision of an adequate written quality assurance procedures manual and processes to ensure appropriate implementation of the quality assurance program described in the quality assurance procedures manual; (d) policies, processes and resources to ensure that Examined Members comply with MERSCORP approved quality assurance plans submitted to MERSCORP by Examined Members and provide to MERSCORP an annual independent report demonstrating their adherence to their MERSCORP approved quality assurance program, including submission of all mandatory MERS data reporting fields, and processes for system-to-system reconciliation and reject/warning error correction. ARTICLE IX eREGISTRY (1) Within ninety (90) days from the effective date of this Order, the MERSCORP Board shall obtain an independent, external review of and recommendations regarding the eRegistry system of recording electronic notes. The review and recommendations shall consider -15- whether appropriate policies, procedures, and operating controls are in place to ensure effective operation of eRegistry. Within sixty (60) days of completion of the review and recommendations required by this Article, MERSCORP shall submit to the Deputy Comptroller for review and supervisory non-objection a plan describing actions necessary to implement any changes to applicable policies, procedures and controls as a result of the findings of the audit. In the event the Deputy Comptroller asks MERSCORP to revise the plan required by this Article, MERSCORP shall immediately make the requested revisions and resubmit the plan. ARTICLE X COMMUNICATIONS PLAN (1) Within sixty (60) days from the effective date of this Order, MERSCORP shall develop, adopt and implement a plan designed to enhance communications and coordination with its Examined Members with respect to their duties and responsibilities as set forth in the Rules and related Procedures, Term and Conditions ("Communications Plan'). The Communication Plan shall, at a minimum, be designed to ensure that all Examined Members and appropriate personnel within an Examined Member are aware of, and can comply with current Rules and related Procedures, Terms and Conditions and any new or revised Rules or related Procedures, Terms and Conditions on an ongoing basis and to ensure that Examined Members and appropriate personnel within or retained by an Examined Member are aware of, and are able to comply with, the requirement to advise MERSCORP of the initiation of litigation naming or otherwise involving MFRS, MERSCORP and/or one of their subsidiaries and coordinate the defense or prosecution of such litigation with MERSCORP. MERS C nnm Order -16- ARTICLE XI APPROVAL. IMPLEMENTATION AND REPORTS (1) MFRS and MERSCORP shall submit the written assessments, reports and plans required by this Order for review and written determination of no supervisory objection to the Deputy Comptroller and within the applicable time periods set forth in the Order. NffiRS and MERSCORP shall adopt the plans required by this Order upon receipt of a determination of no supervisory objection from the OCC, and shall immediately make any revisions requested by the Deputy Comptroller. Upon adoption, MERS and MERSCORP shall immediately implement the plans required by this Order and thereafter fully comply with them. (2) During the term of this Order, the required plans, programs, policies and procedures shall not be amended or rescinded in any material respect without the prior written approval of the Deputy Comptroller. (3) During the term of this Order, MERS and MERSCORP shall revise the required plans, programs, policies and procedures as necessary to incorporate new or changes to applicable federal and state laws, rules, regulations, guidelines, court orders, and contractual or other requirements. (4) The Boards shall ensure that MERS and MERCORP have processes, personnel, resources, and control systems to ensure implementation of and adherence to the plans, programs, policies and procedures required by this Order. (5) Within thirty (30) days after the end of each calendar quarter following the date of this Order, NWM and MERSCORP shall submit to the Deputy Comptroller a written progress report detailing the form and manner of all actions taken to secure compliance with the provisions of this Order and the insults thereof. The progress report shall include information -17- sufficient to validate compliance with this Order, based on a testing program acceptable to the OCC that includes, if required by the OCC, validation by third-party independent consultants acceptable to the Deputy Comptroller. The Deputy Comptroller may, in writing, discontinue the requirement for progress reports or modify the reporting schedule. (6) All communication regarding this Order shall be sent to: (a) Joseph H. Evers Deputy Comptroller for Large Bank Supervision Office of the Comptroller of the Currency 250 E Street, SW Washington, DC 20219 With copy to: (b) Stephen Jackson National Bank Examiner Office of the Comptroller of the Currency 250 E Street, SW Washington, DC 20219 ARTICLE XH COMPLIANCE AND EXTENSIONS OF TIME (1) If MERS or MERSCORP contend that compliance with any provision of this Order would not be feasible or legally permissible, or requires an extension of any timeframe within this Order, the Boards shall submit a written request to the Deputy Comptroller asking for relief. Any written requests submitted pursuant to this Article shall inchxie a statement setting forth in detail the special circumstances that prevent either MERS or MERSCORP from complying with a provision, that require the Deputy Comptroller to exempt either of them from a provision, or that require an extension of a timeframe within this Order. -18- (2) All such requests shall be accompanied by relevant supporting documentation, and to the extent requested by the Deputy Comptroller, a sworn affidavit or affidavits setting forth any other facts upon which MERS or MERSCORP relies. The Deputy Comptroller's decision concerning a request is final and not subject to further review. ARTICLE XHI OTHER PROVISIONS (1) Although this Order requires MERS and MERSCORP to submit certain actions, reports and plans for the review or a written determination of no supervisory objection by the Deputy Comptroller, the Boards have the ultimate responsibility for proper and sound management of MERS and MERSCORP. (2) In each instance in this Order in which MERS or MER.SCORP are required to ensure adherence to, and undertake to perform certain obligations, it is intended to mean that the Boards shall: (a) authorize and adopt such actions on behalf of MERS and hRSCORP as may be necessary for them to perform their obligations and undertakings under the teens of this Order, (b) require the timely reporting of MERS and MERSCORP management of such actions directed by either Board to be taken under the terms of this Order; (c) follow-up on any material non-compliance with such actions in a timely and appropriate manner; and (d) require corrective action be taken in a timely manner of any material non- compliance with such actions. -19- (3) If, at any time, the Comptroller, the Board of Governors, the FDIC, the OTS, or the FHFA deems it appropriate in fulfilling the responsibilities placed upon them by the several laws of the United States to undertake any action affecting MERS or MERSCORP, nothing in this Order shall in any way inhibit, estop, bar or otherwise prevent either any of them from so doing. (4) This Order is and shall become effective upon its execution by the Agencies through their authorized representatives whose hands appear below. The Order shall remain effective and enforceable, except to the extent that, and until such time as, any provision of this Order shall be amended, suspended, waived, or terminated in writing by the Comptroller. (5) Any time limitations imposed by this Order shall begin to run 5t m the effective date of this Order, as shown below, unless the Order specifies otherwise (6) This Order is intended to be, and shall be construed to be, a final order issued pursuant to 12 U.S.C. §§ 1818(b), 1867(d), and 4631 and expressly does not form, and may not be construed to form, a contract binding the Comptroller, the Board of Governors, the FDIC, the OTS, or the FHFA or the United States. Without limiting the foregoing, nothing in this Order shall affect any action against MERS, MERSCORP or officers, directors, or employees by a financial regulatory agency, the United States Department of Justice or any other law enforcement agency, to the extent permitted under applicable law. (7) The terms of this Order, including this paragraph, are not subject to amendment or modification by any extraneous expression, prior agreements, or prior arrangements between the parties, whether oral or written. (8) Nothing in the Stipulation and Consent or this Order, express or implied, shall give to any person or entity, other than the parties hereto, and their successors hereunder, any -20- benefit or any legal or equitable right, remedy or claim under the Stipulation and Consent or this Order. (9) The provisions of this Order shall be binding upon MERSCORP and MERS and their successors and assigns. (10) MERS and MERSCORP consent to the issuance of this order before the filing of any notices, or taking of any testimony or adjudication, and solely for the purpose of settling this matter without a formal proceeding being filed. IT IS SO ORDERED, this 13' day of April, 2011. OFFICE OF THE COMPTROLLER OF THE CURRENCY By: /s/ Joseph H. Evers Joseph H. Evers Deputy Comptroller for Large Bank Supervision BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM By: /s/ Jennifer J. Johnson Jennifer J. Johnson Secretary to the Board -21- FEDERAL DEPOSIT INSURANCE CORPORATION By: /s/ Thomas J. Dujenski Thomas J. Dujenski Regional Director Atlanta Regional Office OFFICE OF THRIFT SUPERVISION By: /s/ Thomas A. Barnes Thomas A. Barnes Deputy Director Examinations, Supervision and Consumer Protection FEDERAL HOUSING FINANCE AGENCY By: /s/ Christopher H. Dickerson Christopher H. Dickerson Acting Deputy Director for Enterprise Regulation -22- COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ONEWEST BANK, FSB Plaintiff V. Kelly M. Kenes Defendant CIVIL DIVISION CASE NO.: 10- 1138 JUDICIAL NOTICE 225 Pa. Rule 201(d) JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Kelly M. Dorris, Defendant in the above-captioned matter, do hereby certify that on August 29, 20111 caused to be served, a true and correct copy of Defendant's Judicial Notice of Consent Order, by first class mail, postage prepaid as follows: Andrew L. Markowitz, Esquire And/or Christine L. Graham, Esquire McCabe, Weisberg & Conway, P.C. 123 South Broad Street, Suite 2080 Philadelphia, Pa. 19109 qjL By:_ Kelly . Dorri 104 E. Marble Street Mechanicsburg, Pa. 17055 (717) 968-2662 CAIAL, PRAECIPE FOR LISTING CASE FOR ARGUMENT E j, M TO THE PROTHONOTARY OF CUMBERLAND COUNTY:,'--' Please list the within matter for the next Argument Court. ONEWEST BANK, FSB Plaintiff, V. KELLY M. KENES, Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No,. 2010-1138 CIVIL TERM -r, 1. State Matter to be argued (i.e., Plaintiff's Motion for New Trial, Defendant's demurrer to complaint, etc.) Plaintiff's Motion for Summary Judgment 2. Identify counsel who will argue case: (a) Nathan Wolf, Esquire 10 W High Street Carlisle, PA 17013-2922 (b) Kelly M. Kenes, Pro Se Defendant 104 East Marble Street Mechanicsburg, PA 17055 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: DATE: a I ?, (3 April 5, 2013 CHRISTINE L. GRAHkN ESQUIRE Attorney for Plaintiff 41q ?S PA ATTY e# 18o857 0 C28('0 1,:51 McCABE, WEISBERG & CONWAY, P.C. BY: CHRISTINE L. GRAHAM, ESQUIRE Identification Number 309480 123 South Broad Street, Suite 1400 Philadelphia, Pennsylvania 19109 215 790-1010 ONEWEST BANK, FSB Plaintiff, V. KELLY M. KENES, Defendant. Attorney for Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2010-1138 CIVIL TERM CERTIFICATION OF SERVICE I, Christine L. Graham, Esquire, hereby certify that a true and correct copy of the within / Pe br?,,icndI Praecipe for Listing Case for Argument was served on the day of?rch, 2 3 , by first-class mail, postage prepaid, upon the following: Kelly M. Kenes 104 East Marble Street Mechanicsburg, PA 17055 Pro Se Defendant c, DATE: bv I CHRISTINE L. G H M, ESQUIRE Attorney for Plaintiff ONEWEST BANK, FSB IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW KELLY M. KENES Defendant No. 10-1138 IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, J., EBERT, J., and PLACEY, J. ORDER OF COURT AND NOW, this 20th day of May, 2013, upon consideration of Plaintiff's Motion for Summary Judgment, the parties' briefs in support thereof, and following oral argument held on April 5, 2013, IT IS HEREBY ORDERED AND DIRECTED that Plaintiff's Motion for Summary Judgment is GRANTED in Mortgage Foreclosure and judgment shall be entered in favor of Plaintiff in the amount of$262,564.56, together with interest at a rate of$44.18 per diem from August 31, 2012, to the entry of judgment, plus costs as provided by law. By the Court, \4 , M.L. Ebert, Jr., J. ZChristine L. Graham, 123 South Broad Street, Suite 1400 Philadelphia, Pa 19109 ' Att ney for Plaintiff w —' Kelly M. Kenes 104 East Marble Street ' ' Mechanicsburg, Pa 17055 -; Pro Se Defendant LL =�"rrf ONEWEST BANK, FSB IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW KELLY M. KENES Defendant No. 10-1138 IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, J., EBERT, J., and PLACEY, J. ORDER AND OPINION OF COURT Ebert, J., May 20, 2013, In this civil case, Plaintiff has sued Defendant in Mortgage Foreclosure in the amount of$262,564.56. For the reasons set forth in this opinion, Plaintiff's Motion for Summary Judgment is GRANTED. Statement of Facts and Procedural History On September 26, 2007, Defendant, Kelly M. Kenes, executed and delivered to IndyMac Bank, FSB (hereinafter "IndyMac"), a Federally Chartered Savings Bank, a Promissory Note (hereinafter "Note") in the amount of$186,000.00 plus interest, in consideration of a loan.' Also on September 26, 2007, Defendant made,-executed, and delivered a Mortgage as security for the loan to Mortgage Electronic Registration Systems, Inc., as nominee for IndyMac.2 This Mortgage was recorded in the Office of the Recorder of Deeds of Cumberland County at instrument number 200737944.3 The Amended Complaint in Mortgage Foreclosure,filed May 3,2010;¶3 (hereinafter"Amended Complaint at Exhibit A 2 Amended Complaint at¶3;Exhibit A 3 Amended Complaint at¶3;Exhibit A 1 land subject to the Mortgage is 104 East Marble Street, Mechanicsburg, Cumberland County, Pennsylvania 17055.4 Defendant.is the record owner of the land subject to the Mortgage.5 The Mortgage was assigned to Plaintiff, OneWest Bank, FSB on February 17, 201 0.6 This assignment was recorded in the Office of the Recorder of Deeds of Cumberland County at instrument number 201005612 on March 5, 2010.7 Defendant defaulted on the Mortgage beginning on February 1, 2009, by failing to make the required monthly payments of principal and interest due.$ Plaintiff sent the required combined Act 6 and Act 91 notice to Defendant by regular mail with a certificate of mailing and by certified mail, return receipt requested.9 Plaintiff filed the Complaint on February 17, 2010, after Defendant failed to reinstate or cure the amount due.10 Defendant filed Preliminary Objections to the initial Complaint and Plaintiff filed an Amended Complaint on May 3, 2010. Defendant filed Preliminary Objections to the Amended Complaint on July 27, 2010, and Amended Preliminary Objections on August 19, 2010. Defendant's Preliminary Objections were dismissed on October 15, 2010.11 Defendant filed a Motion for Reconsideration of the Preliminary Objections, which was denied on November 3, 2010.12 On February 23, 4 Amended Complaint at¶4 5 Answers with New Matter to Plaintiff's Amended Complaint,filed August 29,2011;¶2(hereinafter"Answer at _");See also Deed made Sept. 25,2007 and recorded Oct. 2,2007 with instrument number 200737943 6 Amended Complaint at¶3;Exhibit B 7 Amended Complaint at¶3;Exhibit B e Amended Complaint at¶5;Exhibit D. Plaintiff acquired this Mortgage through Assignment after Defendant had defaulted on the Mortgage. 9 Amended Complaint at¶7;Exhibit E 10 Complaint,filed Feb. 17,2010 11 Order of Court,In Re:Defendant's Preliminary Objections to Plaintiff's Amended Complaint, J. Guido,filed Oct. 15,2010 12 Order of Court,In Re:Reconsideration,J. Guido,filed Nov. 3,2010 2 2011, Defendant filed a Motion to Dismiss. The Motion to Dismiss was stricken on July 25, 2011.13 Defendant then filed an Answer and New Matter to Plaintiff's Complaint on August 29, 2011. In the Answer, Defendant admitted she was the record holder of the property, yet denied the existence of the Note or Mortgage and any default.14 Defendant additionally raised a fraud claim against Plaintiff as New Matter.15 Plaintiff filed a Reply to Defendant's New Matter on September 19, 2011. Plaintiff then served a Request for Admissions on Defendant on September 19, 2011.16 Defendant responded to Plaintiff's Request for Admissions on October 19, 2011, and again denied the existence of any Note, Mortgage, or default.17 Plaintiff then filed the instant Motion for Summary Judgment on January 18, 2013. Defendant filed an Affidavit in response to Plaintiff's Motion for Summary Judgment.18 In her Affidavit, Defendant contends that there are several material facts in dispute and summary judgment should not be granted. Discussion a. Standard of Review Summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions and affidavits on file demonstrate that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2(1), see also Weiner v. American Honda Motor, Co., 13 Order of Court,In Re:Plaintiff's Preliminary Objections to Defendant's Motion to Dismiss,J. Guido,filed July 25,2011 14 Answers with New Matter to Plaintiffs Amended Complaint,filed Aug.29,2011;¶2,5(hereinafter"Answer") 15 Answer;¶ 10-71 16 See Plaintiffs Motion for Summary Judgment, filed Jan. 18, 2013;¶ 16 and attached Exhibit I(hereinafter "Summary Judgment") 17 Summary Judgment at¶ 17 and attached Exhibit J,¶ 1-3 18 First Affidavit filed February 14,2013;Amended Affidavit filed February 15,2013. 3 718 A.2d 305, 307 (Pa. Super. 1998). The court must accept as true all well-pleaded facts in the non-moving party's pleadings. Rosenberg v. Nicholson, 597 A.2d 145, 146 (Pa. Super. 1991). The court must also construe the facts in the light most favorable to the non-moving party and must resolve all doubts and reasonable inferences as to the existence of genuine issues of material fact in favor of the non-moving party. Talega v. Security Bureau, Inc., 719 A.2d 372, 374 (Pa. Super. 1998). The purpose of summary judgment is to avoid unnecessary trials and to "eliminate the waste of time and resources of both litigants where a trial would be a useless formality". Curan v. Children's Service Center of Wyoming County, Inc., 578 A.2d 8, 9 (Pa. Super. 1990). Specifically in a mortgage foreclosure action, summary judgment is proper where the mortgagor admits the mortgage is in default, he or she has failed to pay interest on the mortgage obligation, and that the recorded mortgage is in the specified amount. Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998)(internal citations omitted); see also Citimortgage Inc. v. Nightingale, 6 Pa. D & C.5 1h 375, 379 (Pa.Com.Pl. Lancaster 2008). Summary judgment is still proper even if the mortgagor does not admit the total amount of indebtedness. Cunningham, 714 A.2d at 1057. While this Court views the record in the light most favorable to the non-moving party, Pa.R.C.P. 1035.3 places a burden on the non-moving party to respond to a summary judgment motion. When seeking to avoid summary judgment, the non-moving party cannot rest merely upon the averments in the pleadings but must demonstrate a genuine issue for trial through affidavits, admissions, answers to interrogatories, or other specific factual evidence. Washington Federal Savings and Loan Association v. Stein, 515 A.2d 980, 981 (Pa. Super. 1986). If a party files an affidavit to supplement 4 the record and avoid the entry of summary judgment, the court may properly disregard the affidavit if it determines the affidavit is not "wholly credible". Burger v. Owens Illinois, Inc., 966 A.2d 611, 620 (Pa. Super. 2009). In order to disregard the affidavit, the trial court must first "determine whether the information contained in the affidavit is inherently incredible". Id. at 620-21. Additionally, the averments in a responsive pleading are deemed admitted when not denied specifically or by necessary implication. Pa.R.C.P. 1029. See also Cercone v. Cercone, 386 A.2d 1, 3 (Pa. Super. 1978). Any general denial or demands for proof have the effect of admissions. Pa.R.C.P. 1029(b). b. Analysis After a careful review of the pleadings, admissions, and affidavits this Court finds that summary judgment is proper. Defendant has admitted all material allegations in Plaintiff's Complaint through either direct admissions or general denials. Defendant admits that she is the record holder of the property in question though she maintains complete ignorance regarding the Note and Mortgage.19 However, Defendant puts forward no specific or well-pled facts to support her general denials regarding the existence of the Note and Mortgage. For example, Defendant presents no specific facts as to who, besides herself, would execute the Note and Mortgage on her property or how Defendant was able to finance the purchase of the property without executing the Mortgage. 19 Answer,$2 5 In fact, this Court's records show that the Deed to the property was recorded on the same day as the Mortgage, October 2, 2007.20 Therefore, Defendant can certainly respond to the averments regarding the Mortgage. As the record owner of the property, Defendant would be the only other person, besides Plaintiff, who would have information sufficient to respond to the averments concerning the Mortgage and whether any payments have been made. See New York Guardian Mortgage Corporation v. Dietzel, 524 A.2d 951, 952 (Pa. Super. 1987). Defendant's general denials in response to the allegations contained in Plaintiff's Complaint are deemed admissions. Therefore, Defendant has admitted that she executed the Mortgage, the Mortgage is in default, she has failed to pay interest on the Mortgage, and that the recorded Mortgage is in the specified amount. In an effort to supplement the record and avoid the entry of Summary Judgment, Defendant filed an Affidavit response setting forth what she has termed six "Material Facts in Dispute." As best as this Court can ascertain, Defendant believes the issues of material fact to be: (1) that Plaintiff lacks standing because Plaintiff does not have the original Note, (2) that Defendant never executed any indebtedness documents to Plaintiff, (3) that all payments have not been credited to Defendant's account, based on the fact that Plaintiff failed to attach the ledger, (4) the affidavit attached to Plaintiff's Motion for Summary Judgment is defective and improper, (5) that Defendant never executed a Note or Mortgage, and (6) this Court lacks in personam jurisdiction.21 This Court finds that Defendant's Affidavit is not wholly credible and has properly disregarded it. See Burger, 966 A.2d at 620-21. It is inherently incredible that 20 Amended Complaint at¶3,Exhibit A;See also Deed,recorded on October 2,2007 with instrument number 200737943. 21 See Amended Affidavit,filed February 15,2013. 6 Defendant, as record owner of the property, does not have any knowledge or information regarding who signed the Mortgage, who made payments on the Mortgage from 2007 to February 2009, or how she became the record holder of the property without executing the Mortgage. Defendant's Affidavit does not seek to clarify any of these issues but merely continues to deny the existence of the Mortgage and Note. Since Defendant's Affidavit is inherently incredible and puts forward no material facts showing a genuine issue, this Court has properly disregarded it. Therefore, because Defendant has admitted Plaintiff's allegations and Defendant's Affidavit is inherently incredible and has not put forth any specific factual evidence, there are no genuine issues of material fact and summary judgment is proper. This Court properly disregarded Defendant's Affidavit as not being wholly credible and already determined that summary judgment is proper. Nevertheless, because of the high standard for granting summary judgment, this Court still carefully reviewed the matters raised in Defendant's affidavit that the Defendant claimed were material issues. Though she lists them as separate issues, in fact Defendant's underlying argument is the same for issues (1), (2), (4), and (5), supra.22 Defendant argues that Plaintiff does not have the original Note and Mortgage documents because Plaintiff has failed to attach the original documents or show them to Defendant.23 Pa.R.C.P. 1019(1) states that "when any claim or defense is based upon a writing, the pleader shall attach a p"of the writing" (emphasis added). Plaintiff has complied with Rule 1019(i) and attached copies of the Note and Mortgage to both the Complaint and Motion for 22 See Amended Affidavit,filed February 15,2013 23 See Amended Affidavit,filed February 15,2013 7 Summary Judgment. Furthermore, Plaintiff has offered several times in the Reply to Defendant's New Matter, to set up an appointment for Defendant to view and inspect the original documents.24 Defendant has had ample time in which to take Plaintiff up on the offer to view the original Note. Prior to Plaintiff's Motion for Summary Judgment, the last action taken in this matter was Defendant's Reply to Request for Admissions on October 19, 2011. Defendant has had well over a year to conduct any discovery she deemed necessary. Defendant further contends there is a material issue because all payments made by Defendant have not been credited to Defendant's account, issue (3). Plaintiff has attached a copy of Defendant's payment history to the Complaint.25 Defendant has not put forth any specific factual evidence to refute this payment history. Defendant finally contends that this Court does not have in personam jurisdiction, issue (6). An action in mortgage foreclosure is not an in personam proceeding, but rather an in rem proceeding, for the purpose of securing a judicial sale of the mortgaged property.26 Pa.R.C.P. 1141; see also New York Guardian Mortgage Corporation v. Dietzel, 524 A.2d 951, 953 (Pa. Super. 1987). The property at issue is located within Cumberland County and this Court has proper jurisdiction. See Pa.R.C.P. 1142. Furthermore, Defendant has responded to pleadings and appeared in Court for argument and has therefore submitted to the jurisdiction of this Court. 24 See Plaintiff s Reply to New Matter,filed September 19,2011 25 Amended Complaint,¶5,Exhibit D 26 The fact that a mortgage foreclosure is an in rem proceeding actually benefits Defendant because Defendant would not be personally liable for anything owed on the Mortgage beyond what the sale of the property covers. See Explanatory Comment to Pa.R.C.P. 1141. 8 Defendant also raised a Fraud claim as New Matter.27 Defendant's claim for Fraud is also based on the fact that Plaintiff has not shown Defendant the original Mortgage documents, discussed supra. Defendant had attached an Affidavit of Lynn Szymoniak, as an expert to her Answer and New Matter to support her Fraud claim.28 However, Ms. Szymoniak's affidavit does not rest on specific facts of this matter, but only discusses her general knowledge of the mortgage servicing industry. Therefore, Ms. Szymoniak's affidavit does not put forward any specific facts that show a material issue exists in this matter. It should also be noted that many of the issues Defendant raised as material issues were previously raised in Defendant's Preliminary Objections. Defendant's Preliminary Objections were dismissed on October 15, 2010, and again on November 3, 2010, after Reconsideration. It is fruitless for Defendant to repeat the same issues to support her claim of Fraud or to defeat Plaintiff's Motion for Summary Judgment. While this Court sympathizes with Defendant's situation, there is simply nothing of record supporting her argument that summary judgment should not be granted. Defendant has failed to put forward any well-pled or specific facts showing that a genuine issue of material fact exists. Accordingly Plaintiff's Motion for Summary Judgment is granted and the following Order will be entered: ORDER OF COURT AND NOW, this 20th day of May, 2013, upon consideration of Plaintiff's Motion for Summary Judgment, the parties' briefs in support thereof, and following oral argument held on April 5, 2013, 27 See Answer 28 Answer,¶43;Ex.D-1. 9 IT IS HEREBY ORDERED AND DIRECTED that Plaintiff's Motion for Summary Judgment is GRANTED in Mortgage Foreclosure and judgment shall be entered in favor of Plaintiff in the amount of$262,564.56, together with interest at a rate of$44.18 per diem from August 31, 2012, to the entry of judgment, plus costs as provided by law. By the Court, %,A, M.L. Ebert, Jr., Christine L. Graham, Esquire 123 South Broad Street, Suite 1400 Philadelphia, Pa 19109 Attorney for Plaintiff Kelly M. Kenes 104 East Marble Street Mechanicsburg, Pa 17055 Pro Se Defendant 10 McCABE,WEISBERG AND CONWAY,P.C. BY: TERRENCE J.McCABE,ESQUIRE-ID# 16496 Attorneys for Plaintiff MARC S. WEISBERG,ESQUIRE-ID# 17616 EDWARD D. CONWAY,ESQUIRE -ID#34687 MARGARET GAIRO,ESQUIRE-ID# 34419 �i.._ ANDREW L. MARKOWITZ,ESQUIRE-ID# 28009 z HEIDI R. SPIVAK,ESQUIRE-ID#74770 MARISA J.COHEN,ESQUIRE-ID#87830 rnril KEVIN T.MCQUAIL, ESQUIRE-ID#307169 %' `"`° c ; CHRISTINE L. GRAHAM,ESQUIRE-ID#309480 T.LAMANNA,ESQUIRE-ID#310321 r� "r ANN E. SWARTZ,ESQUIRE-ID#201926 c) _4 c� JOSEPH F. RIGA,ESQUIRE-ID#57716 JOSEPH I. FOLEY,ESQUIRE-ID#314675 CELINE P. DERKRIKORIAN,ESQUIRE-ID#313673 L 123 South Broad Street, Suite 1400 Philadelphia,Pennsylvania 19109 (215)790-1010 Onewest Bank,FSB CUMBERLAND COUNTY Plaintiff COURT OF COMMON PLEAS v. Number 10-1138 civil term Kelly M.Kenes Defendant ASSESSMENT OF DAMAGES AND ENTRY OF JUDGMENT TO THE PROTHONOTARY: Kindly enter judgment in favor of Plaintiff and against Defendant, Kelly M. Kenes, in the above-captioned matter in the amount of$20,553.36 plus per diem interest at$44.18 as set forth in the attached Order dated May 20, 2013. J-do2 491t$16 McCABE,WEISBERG AND CONWA ,P.C. i (N BY: " [ ] Terrence J.McCabe,Esq. Ix Marc S. W isberg, Esq. [ ]Edward D.Conway, Esq. [ ]Margaret Gairo, Esq. [ ] Andrew L.Markowitz, Esq. [ ]Heidi R. Spivak, Esq. [ ] Marisa J. Cohen, Esq. [ ] Kevin T. McQuail, Esq. [ ] Christine L.Graham,Esq. [ ] Brian T. LaManna, Esq. [ ]Ann E. Swartz, Esq. [ ]Joseph F. Riga, Esq. [ ]Joseph I.Foley,Esq. [ ] Celine P. DerKrikorian,Esq. rr�� Attorneys for Plaintiff AND NOW, this °�yday of J , 2013, Judgment is entered in favor of Plaintiff, Onewest Bank,FSB,and against Defendant,Kelly M.Kenes,in rem only and not in personam,and damages are assessed in the amount of$269,553.36,plus interest and costs. BY THE PR HON R . am4 be-?1 _#lg0< < Q �-agaa2-o of)62 M1( d McCABE,WEISBERG AND CONWAY,P.C. BY: TERRENCE J. McCABE,ESQUIRE-ID# 16496 Attorneys for Plaintiff MARC S. WEISBERG,ESQUIRE-ID# 17616 EDWARD D. CONWAY,ESQUIRE -ID#34687 MARGARET GAIRO,ESQUIRE-ID# 34419 ANDREW L. MARKOWITZ, ESQUIRE-ID# 28009 HEIDI R. SPIVAK,ESQUIRE- 1D#74770 MARISA J.COHEN,ESQUIRE-ID#87830 KEVIN T.MCQUAIL,ESQUIRE-ID#307169 CHRISTINE L. GRAHAM, ESQUIRE-ID#309480 BRIAN T. LAMANNA,ESQUIRE-ID#310321 ANN E. SWARTZ,ESQUIRE-ID#201926 JOSEPH F.RIGA,ESQUIRE-ID#57716 JOSEPH I.FOLEY,ESQUIRE-1D#314675 CELINE P.DERKRIKORIAN,ESQUIRE-ID#313673 123 South Broad Street, Suite 1400 Philadelphia,Pennsylvania 19109 (215)790-1010 Onewest Bank,FSB COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY v. Number 10-1138 civil term Kelly M.Kenes Defendant AFFIDAVIT OF LAST-KNOWN MAILING ADDRESS OF DEFENDANT COMMONWEALTH OF PENNSYLVANIA: SS. COUNTY OF PHILADELPHIA: The undersigned, attorney for the Plaintiff in the within matter, being duly sworn according to law, hereby depose and say that the last-known mailing address of the Defendant is: Kelly M.Kenes 104 E Marble Street Mechanicsburg,Pennsylvania 17055 McCABE,WEISBERG AND c ONWAY,P.C. SWORN AND SUBSCRIBED �� BY: BEFORE ME THIS L(/ DAY [ ] Terrence J.McCabe,Esq. [A]Marc S. We(sberg, Esq. [ ]Edward D.Conway,Esq. [ ]Margaret Gairo, Esq. OF , 1 3 [ ]Andrew L.Markowitz,Esq. [ ]Heidi R. Spivak, Esq. [ ] Marisa J. Cohen,Esq. [ ] Kevin T. McQuail, Esq. -i� [ ] Christine L.Graham,Esq. [ ]Brian T. LaManna, Esq. NOTARY'BLIC [ ]Ann E. Swartz,Esq. [ l Jose h F. Riga, Esq. CaymoN ALtypF [ ]Joseph I.Foley, Esq. [ ] Celine P. DerKrikorian, Esq. ROTA ''vsYLVANI, Attorneys for Plaintiff VIC70RIA V,c RIAL SEAL C itYofPhiWtIEaApNotaryb.. hif ,Count Met f�SC McCABE,WEISBERG AND CONWAY,P.C. BY: TERRENCE J.McCABE,ESQUIRE-ID# 16496 Attorneys for Plaintiff MARC S.WEISBERG,ESQUIRE-ID# 17616 EDWARD D.CONWAY,ESQUIRE -ID#34687 MARGARET GAIRO,ESQUIRE-ID# 34419 ANDREW L.MARKOWITZ,ESQUIRE-ID# 28009 HEIDI R. SPIVAK,ESQUIRE-ID#74770 MARISA J. COHEN,ESQUIRE-ID#87830 KEVIN T.McQUAIL,ESQUIRE-ID#307169 CHRISTINE L.GRAHAM,ESQUIRE-ID#309480 BRIAN T.LaMANNA,ESQUIRE-ID#310321 ANN E.SWARTZ,ESQUIRE-ID#201926 JOSEPH F.RIGA,ESQUIRE-ID#57716 JOSEPH I.FOLEY,ESQUIRE-ID#314675 123 South Broad Street,Suite 1400 Philadelphia,Pennsylvania 19109 (215)790-1010 Onewest Bank,FSB CUMBERLAND COUNTY Plaintiff COURT OF COMMON PLEAS v. Kelly M.Kenes Number 10-1138 civil term Defendant Non-Military Affidavit Under the Servicemembers Civil Relief Act The affiant,LS/` ri F e-e V Sd id ,is an employee of OneWest Bank,FSB( OneWest ),and is authorized to make this affidavit on behalf of the Onewest Bank,FSB.The affiant,being first duly sworn upon oath, deposes and says: On this date, JUN 1 9 2013 ,the affiant conducted a search of the Department of Defense Manpower Data Center for the Defendant,Kelly M.Kenes,who is over 18 years of age.The certified military status report provided for said Defendant indicates that said Defendant is not in active military service as defined in the Servicemembers Civil Relief Act. The Military Status Report verifying said belief is attached hereto as Exhibit A. Affiant is unable to determine whether any Defendant is serving with the forces of a nation with which the United States is allied in the prosecution of a war or military action. FURTHER AFFIANT SAYETH NOT. Type Name Here: &i'J F .-Q6 0..1 6,0 Assistant Secretary [California] State of California County of Subscribed and sworn to(or affirmed)before me on this day of ,20_ by ,proved to me on the basis of satisfactory evidence to be the person(s)who appeared before me. (Seal) Signature [Michigan] Subscribed and sworn to by before me on the day of Signature Printed name Notary public,State of Michigan,County of My commission expires *If performing a notarial act in a county other than the county of commission include: Acting in the County of [Texas] State of Texas County of Travis p Sworn to and subscribed before me on the day of JUN 1 9 7013 by 2y' I .V.Y5O►'1 (Personalized Seal) I" L ' /, .:4 aY P`o•: JUDITH L. PROBST Notary Public s Sign r: �►.: 1 NOTARY PUBLIC t �� ' State of Texas Pt Comm.Exp.01-30-2018 Onewest Bank,FSB v.Kelly M.Kenes/Number 10-I 138 civil term File#55481 SCRA - Single Record Request Page 1 of 1 • [50 USC Appx. §§501 et seq.as amended] The services provided on this site are FREE Home Single Record Request Multiple Record Requests User's Guide Single Record Request Use this page to request a Certificate verifying Active Duty Status for an individual on a specified date. * Indicates a required field *SSN 209624929 SSN OR *Repeat SSN 209624929 Birth Date Required *Birth Date MM/DD/YYYY(e.g.,09/16/2012) *Last Name KENES First Name KELLY Middle Name *Active Duty Status Date MM/DD/YYYY(Default will be today's date e.g.,06/17/2013) Clear I Submit Privacy Notice https://www.dmdc.osd.mil/appj/scra/single_record.xhtml 6/19/2013 Results as of:Jun-19-2013 12:16:11 Department of Defense Manpower Data Center SCRA 3.0 ,S°'pia { Status Report m ' Pursuant to Servicernembers Civil Relief Act Last Name: KENES First Name: KELLY Middle Name: M Active Duty Status As Of: Jun-19-2013 On Active Duty On Active Duty Status Date — Active Duty Start Date Active Duty End Date Status Service Component NA NA No NA This response reflects the individuals'active duty status based on the Active Duty Status Date Left Active Duty Within 367 Days of Active Duty Status Date Active Duty Start Date Active Duty End Date Status Service Component NA NA No NA This response reflects where the individual left active duty status within 367 days preceding the Active Duty Status Date The Member or His(Her Unit Was Notified of a Future Cat-Up to Active Duty on Active Duty Status Date Order Notification Start Date Order Notification End Date Status Service Component NA NA No NA This response reflects whether the individual or his/her unit has received early notification to report for active duty Upon searching the data banks of the Department of Defense Manpower Data Center,based on the information that you provided,the above is the status of the individual on the active duty status date as to all branches of the Uniformed Services(Army,Navy,Marine Corps,Air Force,NOAA,Public Health,and Coast Guard). This status includes information on a Servicemember or his/her unit receiving notification of future orders to report for Active Duty. HOWEVER,WITHOUT A SOCIAL SECURITY NUMBER,THE DEPARTMENT OF DEFENSE MANPOWER DATA CENTER CANNOT AUTHORITATIVELY ASSERT THAT THIS IS THE SAME INDIVIDUAL THAT YOUR QUERY REFERS TO.NAME AND DATE OF BIRTH ALONE DO NOT UNIQUELY IDENTIFY AN INDIVIDUAL. Yhantyle . / d� 4 t Mary M.Snavely-Dixon,Director Department of Defense-Manpower Data Center 4800 Mark Center Drive,Suite 04E25 Arlington,VA 22350 The Defense Manpower Data Center(DMDC)is an organization of the Department of Defense(DoD)that maintains the Defense Enrollment and Eligibility Reporting System(DEERS)database which is the official source of data on eligibility for military medical care and other eligibility systems. The DoD strongly supports the enforcement of the Servicemembers Civil Relief Act(50 USC App.§501 et seq,as amended)(SCRA)(formerly known as the Soldiers'and Sailors'Civil Relief Act of 1940). DMDC has issued hundreds of thousands of"does not possess any information indicating that the individual is currently on active duty"responses,and has experienced only a small error rate. In the event the individual referenced above,or any family member,friend,or representative asserts in any manner that the individual was on active duty for the active duty status date,or is otherwise entitled to the protections of the SCRA,you are strongly encouraged to obtain further verification of the person's status by contacting that person's Service via the "defenselink.mil"URL:http://www.defenselink.mil/faq/pis/PC09SLDR.html. If you have evidence the person was on active duty for the active duty status date and you fail to obtain this additional Service verification,punitive provisions of the SCRA may be invoked against you. See 50 USC App.§521(c). This response reflects the following information: (1)The individual's Active Duty status on the Active Duty Status Date(2)Whether the individual left Active Duty status within 367 days preceding the Active Duty Status Date(3)Whether the individual or his/her unit received early notification to report for active duty on the Active Duty Status Date. More information on "Active Duty Status" Active duty status as reported in this certificate is defined in accordance with 10 USC§101(d)(1). Prior to 2010 only some of the active duty periods less than 30 consecutive days in length were available. In the case of a member of the National Guard,this includes service under a call to active service authorized by the President or the Secretary of Defense under 32 USC§502(f)for purposes of responding to a national emergency declared by the President and supported by Federal funds. All Active Guard Reserve(AGR)members must be assigned against an authorized mobilization position in the unit they support. This includes Navy Training and Administration of the Reserves(TARs),Marine Corps Active Reserve(ARs)and Coast Guard Reserve Program Administrator(RPAs). Active Duty status also applies to a Uniformed Service member who is an active duty commissioned officer of the U.S. Public Health Service or the National Oceanic and Atmospheric Administration(NOAA Commissioned Corps). Coverage Under the SCRA is Broader in Some Cases Coverage under the SCRA is broader in some cases and includes some categories of persons on active duty for purposes of the SCRA who would not be reported as on Active Duty under this certificate. SCRA protections are for Title 10 and Title 14 active duty records for all the Uniformed Services periods. Title 32 periods of Active Duty are not covered by SCRA,as defined in accordance with 10 USC§101(d)(1). Many times orders are amended to extend the period of active duty,which would extend SCRA protections.Persons seeking to rely on this website certification should check to make sure the orders on which SCRA protections are based have not been amended to extend the inclusive dates of service. Furthermore,some protections of the SCRA may extend to persons who have received orders to report for active duty or to be inducted,but who have not actually begun active duty or actually reported for induction. The Last Date on Active Duty entry is important because a number of protections of the SCRA extend beyond the last dates of active duty. Those who could rely on this certificate are urged to seek qualified legal counsel to ensure that all rights guaranteed to Service members under the SCRA are protected WARNING: This certificate was provided based on a last name,SSN/date of birth,and active duty status date provided by the requester. Providing erroneous information will cause an erroneous certificate to be provided. Certificate ID: W3161344M0FD1D0 VERIFICATION The undersigned attorney hereby certifies that he/she is the Attorney for the Plaintiff in the within action, and that he/she is authorized to make this verification and that the foregoing facts based on the information from the Plaintiffs representative,who is out of jurisdiction and not available to sign this verification at this time,are true and correct to the best of his/her knowledge,information and belief and further states that false statements herein are made subject to the penalties of 18 PA.C.S. §4904 relating to unsworn falsification to authorities. McCABE,WEISBERG G AND CONWAY,P.C. BY: �' �� [ ] Terrence J.McCabe,Esq. IA Marc S.Weisberg, Esq. [ ]Edward D.Conway,Esq. [ ]Margaret Gairo, Esq. [ ]Andrew L.Markowitz,Esq. [ ] Heidi R. Spivak, Esq. [ ] Marisa J.Cohen,Esq. [ ]Kevin T. McQuail, Esq. [ ] Christine L.Graham,Esq. [ ]Brian T. LaManna, Esq. [ ]Ann E. Swartz,Esq. [ ]Joseph F. Riga, Esq. [ ]Joseph I. Foley,Esq. [ ] Celine P. DerKrikorian, Esq. Attorneys for Plaintiff Onewest Bank,FSB v.Kelly M.Kenes Cumberland County;Number: 10-1138 civil term ONEWEST BANK, FSB : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : CIVIL ACTION - LAW KELLY M. KENES Defendant : No. 10-1138 IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, J., EBERT, J., and PLACEY, J. ORDER OF COURT AND NOW, this 20th day of May, 2013, upon consideration of Plaintiff's Motion for Summary Judgment, the parties' briefs in support thereof, and following oral argument held on April 5, 2013, IT IS HEREBY ORDERED AND DIRECTED that Plaintiff's Motion for Summary Judgment is GRANTED in Mortgage Foreclosure and judgment shall be entered in favor of Plaintiff in the amount of$262,564.56, together with interest at a rate of$44.18 per diem from August 31, 2012, to the entry of judgment, plus costs as provided by law. By the Court, M.L. Ebert, Jr., ` J. Christine L. Graham, Esquire 123 South Broad Street, Suite 1400 Philadelphia, Pa 19109 r,LL, Attorney for Plaintiff rn ' Kelly M. Kenes -<> YU' =T) 104 East Marble Street <c .r�+ Mechanicsburg, Pa 17055 ? c: .~; Pro Se Defendant -r (>) OFFICE OF THE PROTHONOTARY COURT OF COMMON PLEAS Cumberland County Courthouse Carlisle,Pennsylvania 17013 Prothonotary To: Kelly M.Kenes 104 E Marble Street Mechanicsburg,Pennsylvania 17055 Onewest Bank,FSB COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff v. No. 10-1138 civil term Kelly M.Kenes Defendant NOTICE Pursuant to Rule 236,you are hereby notified that a JUDGMENT has n enter 'n the ve procee" as indicated below. sib Prothonotary X Judgment by Court Order P( ,�,`j/ 43 Money Judgment l d Judgment in Replevin Judgment for Possession If you have any questions concerning this Judgment,please call McCabe,Weisberg and Conway, P.C.at(215)790-1010. THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PA DAVID D. BUELL, PROTHONOTARY One Courthouse Square • Suite100 • Carlisle, PA • 17013 (717) 240-6195 www.ccpa.net ONEWEST BANK, FSB Vs. KELLY M. KENES WRIT OF EXECUTION NO 2010-1138 Civil Term CIVIL ACTION — LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the judgment, interest and costs in the above matter you are directed to levy upon and sell the following described property: (1) See legal description. (2) (Specifically describe personal property when judgment results from a mortgage covering both personal and real property pursuant to Section 9604(a)of the Uniform Commercial Code) NOTE: Description of property must be attached to the writ. Amount Due: $262,564.56 L.L.: $.50 Interest FROM 5/21/13 $24,255.92 AT $43.16 Atty's Comm: Due Prothy: $2.25 Atty Paid: $193.75 Other Costs: Plaintiff Paid: Date: 6/16/14 LLaZ- David D. Buell, Prothonotary (Seal) `$ REQUESTING PARTY: Name: MARGARET GAIRO, ESQUIRE Address: 123 S. BROAD STREET, SUITE 1400 PHILADELPHIA, PA 19109 Attorney for: PLAINTIFF Telephone: 215-790-1010 Supreme Court ID No. 34419 Deputy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION FILE NO.: 2010-1138 Civil Term Onewest Bank, FSB v. AMOUNT DUE: $262,564.56 Kelly M. Kenes INTEREST: from 05/21/13 $24,255.92 at $43.16 ATTY'S COMM.: COSTS: TO THE PROTHONOTARY OF SAID COURT: The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract, or account based on a confession of judgment, but if it does, it is based on the appropriate original proceeding filed pursuant to Act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as amended. PRAECIPE FOR EXECUTION Issue writ or execution in the above matter to the Sheriff of Cumberland County, for debt, interest and costs upon the following described property of the defendant(s) 104 East Marble Street, Mechanicsburg, Pennsylvania 17055 (More fully described as attached) PRAECIPE FOR ATTACHMENT EXECUTION Issue writ of attachment to the Sheriff of CUMBERLAND County, for debt, interest and costs, as above, directing attachment against the above-named garnishee(s) for the following property (if real estate, supply six copies of the description; supply four copies of lengthy personalty list) and all other property of the defendant(s) in the possession, custody or control of the said garnishce(s). (Indicate) Index this writ against the garnishee(s) as a lis pendens against real estate of the defendant(s) described in the attached exhibit. DATE: McCAB , WEISBE$G & CONWAY, P.C. BY: [ ] Terr-nce J. cCabe, Esq. [ ] Edward D. 1 onway, Esq. [ ] Andrew L. arkowitz, Esq. [ ] Marisa J. Cohen, Esq. [ ] Brian T. LaManna, Esq. [ ] Joseph F. Riga, Esq. [ ] Celine P. DerKrikorian, Esq. [ ] Lena Kravets, Esq. Attorneys for Plaintiff egg cd,,,,t agcopei a 3-7.0 qp,00<< 1, 0:15 N.sou sic/3.7s pd a [ ] Marc S. Weisberg, Esq. []'Margaret Gairo, Esq. [ ] Heidi R. Spivak, Esq. [ ] Christine L. Graham, Esq. [ ] Ann E. Swartz, Esq. [ ] Joseph 1. Foley, Esq. [ ] Jennifer L. Wunder, Esq. [ ] Carol A. DiPrinzio, Esq. Address:123 S. Broad Street, Suite 1400 Philadelphia, PA 19109 Attorney for: Plaintiff Telephone: (215) 790 1010 4002,5-uprem4Court ID No. CO( eqd ad=ss,4 12-x. McCABE, WEISBERG & CONWAY, P.C. BY: TERRENCE J. McCABE, ESQUIRE - ID # 16496 MARC S. WEISBERG, ESQUIRE - ID # 17616 EDWARD D. CONWAY, ESQUIRE - ID # 34687 MARGARET GAIRO, ESQUIRE - ID # 34419 ANDREW L. MARKOWITZ, ESQUIRE - ID # 28009 HEIDI R. SPIVAK, ESQUIRE - ID # 74770 MARISA J. COHEN, ESQUIRE - ID # 87830 CHRISTINE L. GRAHAM, ESQUIRE - ID # 309480 BRIAN T. LAMANNA, ESQUIRE - ID # 310321 ANN E. SWARTZ, ESQUIRE - ID # 201926 JOSEPH F. RIGA, ESQUIRE - ID # 57716 JOSEPH I. FOLEY, ESQUIRE - ID # 314675 CELINE P. DERKRIKORIAN, ESQUIRE - ID # 313673 JENNIFER L. WUNDER, ESQUIRE - ID # 315954 LENA KRAVETS, ESQUIRE - ID # 316421 CAROL A. DiPRINZIO, ESQUIRE - ID # 316094 123 South Broad Street, Suite 1400 Philadelphia, Pennsylvania 19109 (215) 790-1010 Onewest Bank, FSB Kelly M. Kenes Plaintiff v. Defendant Attorneys for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS NO: 2010-1138 AFFIDAVIT PURSUANT TO RULE 3129.1 The undersigned, attorney for Plaintiff in the above action, sets forth the following information concerning the real property located at: 104 East Marble Street, Mechanicsburg, Pennsylvania 17055, as of the date the Praecipe for the Writ of Execution was filed. A copy of the description of said property being attached hereto. 1. Name and address of Owner or Reputed Owner Name Kelly M. Kenes 2. Name and address of Defendant in the judgment: Name Kelly M. Kenes Address 104 East Marble Street Mechanicsburg, Pennsylvania 17055 Address 104 E Marble Street Mechanicsburg, Pennsylvania 17055 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Plaintiff herein Address 4. Name and address of the last recorded holder of every mortgage of record: Name Address Plaintiff herein 5. Name and address of every other person who has any record lien on the property: Name Borough of Mechanicsburg Address West Strawberry & North Market Street c/o David J. Spotts, Esquire Mechanicsburg, Pennsylvania 17055 6. Name and address of every other person who has any record interest in the property which may be affected by the sale: Name Address 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 Tenants/Occupants Commonwealth of Pennsylvania Commonwealth of Pennsylvania Inheritance Tax Office Commonwealth of Pennsylvania Bureau of Individual Tax Inheritance Tax Division Department of Public Welfare TPL Casualty Unit Estate Recovery Program PA Department of Revenue PA Department of Revenue Bureau of Compliance Lien Section Address 104 East Marble Street Mechanicsburg, Pennsylvania 17055 Department of Public Welfare Bureau of Child Support Enforcement P.O. Box 2675 Harrisburg, PA 17105 ATTN: Dan Richard 110 North 8th Street Suite #204 Philadelphia, PA 19107 6th Floor, Strawberry Square Department #280601 Harrisburg, PA 17128 Willow Oak Building P.O. Box 8486 Harrisburg, PA 17105-8486 Bureau of Compliance P.O. Box 281230 Harrisburg, PA 17128-1230 PO BOX 280948 Harrisburg PA 17128-0948 Commonwealth of Pennsylvania Department of Revenue Bureau of Compliance United States of America Domestic Relations Cumberland County Tax Claim Bureau Commonwealth of PA Department of Revenue United States of America United States of America c/o Atty General of the United States United States of America c/o Atty General of the United States 8. Name and address of Attorney of record: Name None 1 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. Section 4904 relating to unsworn falsification to authorities. Clearance Support Department 281230 Harrisburg, PA 17128-1230 ATTN: Sheriff's Sales Internal Revenue Service Technical Support Group William Green Federal Building Room 3259 600 Arch Street Philadelphia, PA 19106 P.O. Box 320 Carlisle, PA 17013 1 Courthouse Square Carlise, PA 17013 Bureau of Compliance Department 280946 Harrisburg, PA 17128-0946 Attn: Sheriffs Sales c/o United States Attorney for the Middle District of PA Harrisburg Federal Building & Courthouse 228 Walnut Street, Ste. 220 Harrisburg, PA 17108-1754 U.S. Dept of Justice, Room 5111 950 Pennsylvania Avenue NW Washington, DC 20530-0001 U.S. Dept of Justice, Room 4400 950 Pennsylvania Avenue NW Washington, DC 20530-0001 Address Onewest Bank, FSB v. Kelly M. Kenes Cumberland County; Number: 2010-1138 McCAB WEISBERG & CONWAY, P.C. BY: [ ] Te nce J. cCab , sq. [ ] Edward D. onway, Esq. [ ] Andrew L. arkowitz, Esq. [ ] Marisa J. Cohen, Esq. [ ] Brian T. LaManna, Esq. [ ] Joseph F. Riga, Esq. [ ] Celine P. DerKrikorian, Esq. [ ] Lena Kravets, Esq. Attorneys for Plaintiff [ ] Marc S. Weisberg, Esq. [ ` j1 1argaret Gairo, Esq. [ ] Heidi R. Spivak, Esq. [ ] Christine L. Graham, Esq. [ ] Ann E. Swartz, Esq. [ ] Joseph I. Foley, Esq. [ ] Jennifer L. Wunder, Esq. [ ] Carol A. DiPrinr_io, Esq. McCABE, WEISBERG & CONWAY, P.C. BY: TERRENCE J. McCABE, ESQUIRE - ID # 16496 MARC S. WEISBERG, ESQUIRE - ID # 17616 EDWARD D. CONWAY, ESQUIRE - ID # 34687 MARGARET GAIRO, ESQUIRE - ID # 34419 ANDREW L. MARKOWITZ, ESQUIRE - ID # 28009 HEIDI R. SPIVAK, ESQUIRE - ID # 74770 MARISA J. COHEN, ESQUIRE - ID # 87830 CHRISTINE L. GRAHAM, ESQUIRE - ID # 309480 BRIAN T. LAMANNA, ESQUIRE - ID # 310321 ANN E. SWARTZ, ESQUIRE - ID # 201926 JOSEPH F. RIGA, ESQUIRE - ID # 57716 JOSEPH I. FOLEY, ESQUIRE - ID # 314675 CELINE P. DERKRIKORIAN, ESQUIRE - ID # 313673 JENNIFER L. WUNDER, ESQUIRE - ID # 315954 LENA KRAVETS, ESQUIRE - ID # 316421 CAROL A. DiPRINZIO, ESQUIRE - ID # 316094 123 South Broad Street, Suite 1400 Philadelphia, Pennsylvania 19109 (215) 790-1010 CIVIL ACTION LAW Onewest Bank, FSB v. Kelly M. Kenes Attorneys for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY Number 2010-1138 NOTICE OF SHERIFF'S SALE OF REAL PROPERTY Kelly M. Kenes 104 E Marble Street Mechanicsburg, Pennsylvania 17055 Your house (real estate) at 104 East Marble Street, Mechanicsburg, Pennsylvania 17055 is scheduled to be sold at Sheriffs Sale on December 3, 2014 at 10:00 a.m. in the Commissioner's Hearing Room located on the 2nd Floor of the Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Pennsylvania 17013 to enforce the court judgment of $262,564.56 obtained by Onewest Bank, FSB against you. 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 canceled if you pay to Onewest Bank, FSB the back payments, late charges, costs, and reasonable attorney's fees due. To find out how much you must pay, you may call McCabe, Weisberg and Conway, P.C., Esquire at (215) 790-1010. 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 the following notice on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTS EVEN 1F THE SHERIFF'S SALE DOES TAKE PLACE 1 If the Sheriffs Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling McCabe, Weisberg and Conway, P.C., Esquire at (215) 790-1010. 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 on the sale. To find out if this has happened, you may call McCabe, Weisberg and Conway, P.C. at (215) 790-1010. 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 a 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 real estate. A schedule of distribution of the money bid for your real estate will be filed by the Sheriff within thirty (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 schedule of distribution is wrong) are filed with the Sheriff within ten (10) days after the posting of the schedule of distribution. 7. You may also have other rights and defenses, or ways of getting your real estate back, if you act immediately after the sale. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU 1)0 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, Pennsylvania 17013 (800) 990-9108 ASSOCIATION DE LICENCIDADOS Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (800) 990-9108 SUITE 210 145 HUGUENOT STREET NEW ROCHELLE, NY 10801 (914)-636-8900 FAX (914) 636-8901 SUITE 201 216 HADDON AVENUE WESTMONT, NJ 08108 (856)858-7080 FAX (856) 658-7020 SUITE 130 DELAWARE CORPORATE CENTER 1 ONE RIGHTER PARKWAY WILMINGTON, DE 19803 (302) 409-3520 FAX 855-425-1980 Sheriffs Office 1 Courthouse Square Third Floor Carlisle, Pennsylvania 17013 LAW OFFICES McCABE, WEISBERG & CONWAY, P.C. SUITE 1400 123 SOUTH BROAD STREET PHILADELPHIA, PA 19109 (215) 790-1010 FAX (215) 790-1274 June 9, 2014 Re: Onewest Bank, FSB vs. Kelly M. Kenes Cumberland County, Number 2010-1138 Premises: 104 East Marble Street, Mechanicsburg, Pennsylvania 17055 Dear Sir or Madam: SUITE 800 312 MARSHALI., AVENUE LAUREL, MD 20707 (301)490-3361 FAX (301)490-1568 Also servicing the District of Columbia SUITE 203 722 E MARKET STREET LEESBURG, VA 20176 (571) 449 9350 FAX: (855) 845-2585 SUITE 2S06 I IIUNTINGTON QUADRANGLE MELVILLE, NY 11747 (631) 812-4084 FAX: (855) 845-2584 Enclosed please find 3 copies of Notice of Sheriffs Sale of Real Estate Pursuant to PA.R.C.P. 3129 relative to the above matter. Please note that our office may have more than one address for a particular Defendant at which we would like to make service attempts, and those addresses and directions as such are listed below. 1 would appreciate your serving the Notice upon the Defendant as follows: Kelly M. Kenes, 104 E Marble Street, Mechanicsburg, PA 17055 **Kindly post the handbill to the property address: 104 East Marble Street, Mechanicsburg, Pennsylvania 17055. Very truly yours, /bm Enclosures Brittany Mucerino, legal Assistant McCabe, Weisberg and Conway, P.C. This is a communication from a debt collector. This letter may be an attempt to collect a debt and any information obtained will be used for that purpose. MCCABE, WEISBERG & CONWAY, P.C. BY: TERRENCE J. McCABE, ESQUIRE - ID # 16496 MARC S. WEISBERG, ESQUIRE - ID # 17616 EDWARD D. CONWAY, ESQUIRE - ID # 34687 MARGARET GAIRO, ESQUIRE - ID # 34419 ANDREW L. MARKOWITZ, ESQUIRE - ID # 28009 HEIDI R. SPIVAK, ESQUIRE - ID # 74770 MARISA J. COHEN, ESQUIRE - ID # 87830 CHRISTINE L. GRAHAM, ESQUIRE - ID # 309480 BRIAN T. LAMANNA, ESQUIRE - ID # 310321 ANN E. SWARTZ, ESQUIRE - ID # 201926 JOSEPH F. RIGA, ESQUIRE - ID # 57716 JOSEPH I. FOLEY, ESQUIRE - ID # 314675 CELINE P. DERKRIKORIAN, ESQUIRE - ID # 313673 JENNIFER L. WUNDER, ESQUIRE - ID # 315954 LENA KRAVETS, ESQUIRE - ID # 316421 CAROL A. DiPRINZIO, ESQUIRE - ID # 316094 123 South Broad Street, Suite 1400 Philadelphia, Pennsylvania 19109 2 '1-11 1 Onewest Bank, FSB Plaintiff v. Kelly M. Kenes Defendant Attorneys for Plaintiff Cumberland County Court of Common Pleas Number 2010-1138 AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF PHILADELPHIA :SS. I, undersigned, attorney for Plaintiff in the within matter, being duly sworn according to law, deposes and says that a true and correct copy of the Notice of Sheriffs Sale of Real Estate was served upon the Defendant, Kelly M. Dorris . The regular mail was never returned, and the certified mail was signed for by the Defendant, Kelly M. Dorris, on July 14, 2014. A true and correct copy of the letter, certificate of mailing, certified receipt number 7014 0150 0002 1526 4019 and signed green card is attached hereto, made part hereof, and marked as Exhibit "A". VANIA COMMONWEALTH OF PENNSYL NOTARIAL SEAL public �{WAITE, Notary TERRENCE u Phillaadelphia, Phila. 12, County 18 My Commission Expires McCABE, WEIERG AND C�NWAY, P.C. IN BY: `� [ ] Terrence J. cCabe, Esq. f--4Marc S. Weisberg, E [ ] Edward D. Conway, Esq. [ ] Margaret Gairo, Esq. [ ] Andrew L. Markowitz, Es [ ] Marisa J. Cohen, Esq. [ ] Brian T. LaManna, Esq. [ ] Joseph F. Riga, Esq. [ ] Celine P. DerKrikorian, E [ ] Lena Kravets, Esquire Attorneys for Plaintiff SWORN AND SUBSCRIBED BEFORE ME THIS a,'1 DAY OF U� ,2014 A32.AiL>Oi(if2_ Gq)kiJ.A.X5-11- NOTARY PUBLIC q. [ ] Heidi R. Spivak, Esq. [ ] Christine L. Graham, Esq. [ ] Ann E. Swartz, Esq. [ ] Joseph I. Foley, Esq. sq. [ ] Jennifer L. Wunder, Esquire [ ] Carol A. DiPrinzio, Esquire EXHIBIT A ,osUSitMSe}VICE 0.11.,0h,P700,00401:440 e' 4•FOkdeliYerVilPftlin.1.41000.10,0:-*PtitktY0ivAtillsketiTA4Wt4 a Postage Certified Fee Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage & Fees $ 330 / $ 6:11Y •0 PostmartC. Hero sewn' If1/ Il 14 .gtreet, Ap . No.; yi ^ • or PO Box No. ..(vio k City, State, ZIP+4 D-5-7 0061R,Oidtrgila,g0454;041iltg.,VArlegkgoilffithalsitn1; Name and Address of Sender McCabe, Weisberg and Conway, P.C. 123 S. Broad St., Suite 1400 Philadelphia, PA 19109 ATTN: Michael J. McBride - 55481 Check type of mail or service: 0 Certified 0 Recorded Delivery (International) 0 COD 0 Registered 0 Delivery Confirmation 0 Return Receipt for Merchandise 0 Express Mail 0 Signature Confirmation 0 Insured U.S. POSTAGE »> PITNEY BOWES g Line Article Number Se �a �: ©z 000137794 ivy' JUL .01 20.71(.1&001s .2014 sc Fa S z 1 Kelly M. Kenes 104 E Marble Street Mechanicsburg, Pennsylvania 17055 2 i 4 5 6 •7 • . 9 Total Number of Pieces Listed by Sender 1 Total Number of Pieces Received at Post Office SENDER: COMPLETE THIS SECTION N Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. IN Print your name and address on the reverse so that we can return the card to you. N Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: 12cIly kn,c:?S , avoe _C)Ret ' file(A 01A/ JC5,69/�. 17055 , COMPLETE THIS SECTION ON DELIVERY 1 y D. is deiivertr address different ent from item 1? 0 Yes If YES, enter delivery address below: 0 No El Agent 0 Addressee C. Date of Delivery 3. Seo Type SCI Certified Mail® O Registered O Insured Mall 0 Priority Mall Express" O Return Receipt for Merchandise ❑ Collect on Delivery 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (Transfer from service fat 7014 0150 0002 1526 4019 PS Form; 3811, July 2013 ; Domestic Return Receipt McCABE, WEISBERG AND CONWAY, P.C. BY: TERRENCE J. McCABE, ESQUIRE - ID # 16496 MARC S. WEISBERG, ESQUIRE - ID # 17616 EDWARD D. CONWAY, ESQUIRE - ID # 34687 MARGARET GAIRO, ESQUIRE - ID # 34419 ANDREW L. MARKOWITZ, ESQUIRE - ID # 28009 HEIDI R. SPIVAK, ESQUIRE - ID # 74770 MARISA J. COHEN, ESQUIRE - ID # 87830 CHRISTINE L. GRAHAM, ESQUIRE - ID # 309480 BRIAN T. LAMANNA, ESQUIRE - ID # 310321 ANN E. SWARTZ, ESQUIRE - ID # 201926 JOSEPH F. RIGA, ESQUIRE - ID # 57716 JOSEPH I. FOLEY, ESQUIRE - ID # 314675 CELINE P. DERKRIKORIAN, ESQUIRE - ID # 313673 LENA KRAVETS, ESQUIRE - ID # 316421 CAROL A. DiPRINZIO, ESQUIRE - ID # 316094 123 South Broad Street, Suite 1400 Philadelphia, Pennsylvania 19109 (215) 790-1010 Onewest Bank, FSB Plaintiff Kelly M. Kenes v. Defendant CUMBERLAND COUNTY COURT OF COMMON PLEAS Number 2010-1138 AFFIDAVIT OF SERVICE The undersigned attorney for the Plaintiff in the within matter, hereby certifies that on the 22nd day of October, 2014, a true and correct copy of the Notice of Sheriffs Sale of Real Property was served on all pertinent lienholder(s) as set forth in Amended Affidavit Pursuant to 3129.1 which is attached hereto. A copy of the Notice of Sheriff's Sale and certificate of mailing is also attached hereto and made a part hereof. SWORN AND SUBSCRIBED BEFORE ME THISta%3 DAY , 2014 a, COtliAt fi g C NOTARIAL SEAL -vAN SFI e1'IIA r FtAYTON 0 Philadelphia, Phila.' Notary public Otbrtil lon Expires January 31 018 McCABE, WEISBE BY: AY, P.C. [ ] Terrence J. McCabe, Esquire [ ] Edward D. Conway, Esquire [ ] Andrew L. Markowitz, Esquire [ ] Marisa J. Cohen, Esquire [ ] Brian T. LaManna, Esquire [ ] Joseph . "ga, Esquire [ ] Ce ' e P. DerKrikorian, Esquire [ arol A. DiPrinzio, Esquire Attorneys for Plaintiff [ arc S. eis erg, Esquire [ ] Margaret Gairo, Esquire [ ] Heidi R. Spivak, Esquire [ ] Christine L. Graham, Esquire [ ] Ann E. Swartz, Esquire [ ] Joseph I. Foley, Esquire [ ] Lena Kravets, Esquire McCABE, WEISBERG & CONWAY, P.C. BY: TERRENCE J. McCABE, ESQUIRE - ID # 16496 MARC S. WEISBERG, ESQUIRE - ID # 17616 EDWARD D. CONWAY, ESQUIRE - ID # 34687 MARGARET GAIRO, ESQUIRE - ID # 34419 ANDREW L. MARKOWITZ, ESQUIRE - ID # 28009 HEIDI R. SPIVAK, ESQUIRE - ID # 74770 MARISA J. COHEN, ESQUIRE - ID # 87830 CHRISTINE L. GRAHAM, ESQUIRE - ID # 309480 BRIAN T. LAMANNA, ESQUIRE - ID # 310321 ANN E. SWARTZ, ESQUIRE - ID # 201926 JOSEPH F. RIGA, ESQUIRE - ID # 57716 JOSEPH I. FOLEY, ESQUIRE - ID # 314675 CELINE P. DERKRIKORIAN, ESQUIRE - ID # 313673 LENA KRAVETS, ESQUIRE - ID # 316421 CAROL A. DiPRINZIO, ESQUIRE - ID # 316094 123 South Broad Street, Suite 1400 Philadelphia, Pennsylvania 19109 (215) 790-1010 Onewest Bank, FSB Kelly M. Kenes Plaintiff v. Defendant Attorneys for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS NO: 2010-1138 AFFIDAVIT PURSUANT TO RULE 3129.1 The undersigned, attorney for Plaintiff in the above action, sets forth the following information concerning the real property located at: 104 East Marble Street, Mechanicsburg, Pennsylvania 17055, as of the date the Praecipe for the Writ of Execution was filed. A copy of the description of said property being attached hereto. 1. Name and address of Owner or Reputed Owner Name Address Kelly M. Kenes 104 East Marble Street Mechanicsburg, Pennsylvania 17055 2. Name and address of Defendant in the judgment: Name Address Kelly M. Kenes 104 E Marble Street Mechanicsburg, Pennsylvania 17055 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 Plaintiff herein 4. Name and address of the last recorded holder of every mortgage of record: Name Address Plaintiff herein 5. Name and address of every other person who has any record lien on the property: Name Address Borough of Mechanicsburg West Strawberry & North Market Street do David J. Spotts, Esquire Mechanicsburg, Pennsylvania 17055 6. Name and address of every other person who has any record interest in the property which may be affected by the sale: Name Address Tiday Construction Company Myers John H & Son Inc 56 Hoover Rd Carlisle PA 17015 2200 Monroe St Po Box 1924 York PA17405 Total Heating and Cooling Inc 2426 Armstrong Valley Rd Haifax PA 17032 Total Heating and Cooling Inc c/o Howell Steven Law Offices of Steven Howell 619 Bridge St New Cumberland PA 17070 Mechanicburg Borough do Spotts 36 W Allen St David J Mechanicsburg PA 17055 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 Tenants/Occupants Commonwealth of Pennsylvania Commonwealth of Pennsylvania Inheritance Tax Office Commonwealth of Pennsylvania Bureau of Individual Tax Inheritance Tax Division Department of Public Welfare TPL Casualty Unit Estate Recovery Program 104 East Marble Street Mechanicsburg, Pennsylvania 17055 Department of Public Welfare Bureau of Child Support Enforcement P.O. Box 2675 Harrisburg, PA 17105 ATTN: Dan Richard 110 North 8th Street Suite #204 Philadelphia, PA 19107 6th Floor, Strawberry Square Department #280601 Harrisburg, PA 17128 Willow Oak Building P.O. Box 8486 Harrisburg, PA 17105-8486 PA Department of Revenue PA Department of Revenue Bureau of Compliance Lien Section Commonwealth of Pennsylvania Department of Revenue Bureau of Compliance United States of America Domestic Relations Cumberland County Tax Claim Bureau Commonwealth of PA Department of Revenue United States of America United States of America c/o Atty General of the United States United States of America do Atty General of the United States 8. Name and address of Attorney of record: Name None Bureau of Compliance P.O. Box 281230 Harrisburg, PA 17128-1230 PO BOX 280948 Harrisburg PA 17128-0948 Clearance Support Department 281230 Harrisburg, PA 17128-1230 ATTN: Sheriffs Sales Internal Revenue Service Technical Support Group William Green Federal Building Room 3259 600 Arch Street Philadelphia, PA 19106 P.O. Box 320 Carlisle, PA 17013 1 Courthouse Square Carlise, PA 17013 Bureau of Compliance Department 280946 Harrisburg, PA 17128-0946 Attn: Sheriffs Sales c/o United States Attorney for the Middle District of PA William J. Nealon Federal Bldg. 235 North Washington Avenue, Ste. 311 Scranton, PA 18503 and Harrisburg Federal Building & Courthouse 228 Walnut Street, Ste. 220 Harrisburg, PA 17108-1754 U.S. Dept of Justice, Room 5111 950 Pennsylvania Avenue NW Washington, DC 20530-0001 U.S. Dept of Justice, Room 4400 950 Pennsylvania Avenue NW Washington, DC 20530-0001 Address 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. Section 4904 relating to unsworn falsification to authorities. 1)%3//4% f/ McCAB LCOWEISB „art.'_ CY, P.C. DATE / i' BY: [ ] Terrence J. McCabe, Esq. [ ] Mary.. Weisberg, Esq. [ ] Edward D. Conway, Esq. [ ] Margaret Gairo, Esq. [ ] Andrew L. Markowitz, Esq. [ ] Heidi R. Spivak, Esq. [ ] Marisa J. Cohen, Esq. [ ] Christine L. Graham, Esq. [ ] Brian T. LaManna, Esq. [ ] Ann E. Swartz, Esq. [ ] Jose . Riga, Esq. [ ] Joseph I. Foley, Esq. [ ] me P. DerKrikorian, Esq. [ ] Lena Kravets, Esq. [ Carol A. DiPrinzio, Esq. Attorneys for Plaintiff Re: Onewest Bank, FSB v. Kelly M. Kenes. et al. Cumberland County; Number: 2010-1138 McCABE, WEISBERG AND CONWAY, P.C. BY: TERRENCE J. McCABE, ESQUIRE - ID # 16496 MARC S. WEISBERG, ESQUIRE - ID # 17616 EDWARD D. CONWAY, ESQUIRE - ID # 34687 MARGARET GAIRO, ESQUIRE - ID # 34419 ANDREW L. MARKOWITZ, ESQUIRE - ID # 28009 HEIDI R. SPIVAK, ESQUIRE - ID # 74770 MARISA J. COHEN, ESQUIRE - ID # 87830 CHRISTINE L. GRAHAM, ESQUIRE - ID # 309480 BRIAN T. LAMANNA, ESQUIRE - ID # 310321 ANN E. SWARTZ, ESQUIRE - ID # 201926 JOSEPH F. RIGA, ESQUIRE - ID # 57716 JOSEPH I. FOLEY, ESQUIRE - ID # 314675 CELINE P. DERKRIKORIAN, ESQUIRE - ID # 313673 LENA KRAVETS, ESQUIRE - ID # 316421 CAROL A. DiPRINZIO, ESQUIRE - ID # 316094 123 South Broad Street, Suite 1400 Philadelphia, Pennsylvania 19109 (215) 790-1010 Onewest Bank, FSB Plaintiff Kelly M. Kenes v. Defendant DATE: October 22, 2014 TO: ALL PARTIES IN INTEREST AND CLAIMANTS COURT OF COMMON PLEAS CUMBERLAND COUNTY Number 2010-1138 NOTICE OF SHERIFF'S SALE OF REAL PROPERTY OWNERS: Kelly M. Kenes PROPERTY: 104 East Marble Street, Mechanicsburg, Pennsylvania 17055 IMPROVEMENTS: Residential Dwelling JUDGMENT AMOUNT: $262,564.56 The above -captioned property is scheduled to be sold pursuant to the judgment of the court caption above at the Sheriffs Sale on December 3, 2014 at 10:00 a.m. in the Commissioner's Hearing Room located on the 2nd Floor of the Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Pennsylvania 17013. Our records indicate that you may hold a mortgage or judgments and liens on, and/or other interests in the property which will be extinguished by the sale. You may wish to attend the sale to protect your interests. A schedule of distribution will be filed by the Sheriff on a date specified by the Sheriff not later than thirty (30) days after sale. Distribution will be made in accordance with the schedule unless exceptions are filed thereto within ten (10) days after the filing of the schedule. If you have any questions regarding the type of lien or the effect of the Sheriffs Sale upon your lien, we urge you to CONTACT YOUR OWN ATTORNEY as WE ARE NOT PERMITTED TO GIVE YOU LEGAL ADVICE. Name and Address of Sender Conway,❑Certified McCabe, Weisbergand Conwa P.C. 123 S. Broad St., Suite 1400 Philadelphia, PA 19109 Attn SHONDERA DRAYTON 55481 Check of mail or service: typeStamp 0 Recorded Delivery (International) COD 0 Registered g ❑ Delive Confirmation ❑ Return Recei t for Merchandise 0 Express Mail 0 Signature Confirmation 0 Insured Affix Here (if issued as a •i 4i} certificate of mailing, g X or for additional [ : - - copies of this bill) , Postmark and a L+ Date of Receipt � ; U.S. r� ' r�G�a `t' : •k,,, t- _. , ZIP _ 11: • 0001377494 __- .� wu' posTAGE��PITNEYBOWES 19109 _ —Fee— _ _ ^.._ Fee 025.200 �� OCT. 22. Fee i ,I e� O 2014 Line Article Number Addressee Name, Street and PO Address Postage Fee Handling Charge Ac if 1 Fee Fee Onewest Bank, FSB v. Kelly M. Kenes 1 Tiday Construction Company 56 Hoover Rd Carlisle PA 17015 2 Myers John H & Son Inc 2200 Monroe St Po Box 1924 York PA 17405 3 Total Heating and Cooling Inc 2426 Armstrong Valley Rd Haifax PA 17032 4 Total Heating and Cooling Inc do Howell Steven Law Offices of Steven Howell 619 Bridge St New Cumberland PA 17070 5 Mechanicburg Borough do Spotts David J 36 W Allen St Mechanicsburg PA 17055 6 Borough of Mechanicsburg West Strawberry & North Market Street do David J. Spotts, Esquire Mechanicsburg, Pennsylvania 17055 1,...:vT1Tt it f p9 , 1. ,,2 .J ;7.22f,,„) 7 Tenants 104 East Marble Street Mechanicsburg, Pennsylvania 17055 w j � o ca �` ?P 8 Commonwealth of Pennsylvania Department of Public Welfare Bureau of Child Support Enforcement P.O. Box 2675 Harrisburg, PA 17105 ATTN: Dan Richard 9 . Commonwealth of Pennsylvania Inheritance Tax Office 110 North 8th Street Suite #204 Philadelphia, PA 19107 10 Commonwealth of Pennsylvania Bureau of Individual Tax Inheritance Tax Division 6th Floor, Strawberry Square Department #280601 Harrisburg, PA 17128 11 Department of Public Welfare TPL Casualty Unit Estate Recovery Program Willow Oak Building P.O. Box 8486 Harrisburg, PA 17105-8486 12 PA Department of Revenue Bureau of Compliance P.O. Box 281230 Harrisburg, PA 17128-1230 13 PA Department of Revenue Bureau of Compliance Lien Section PO BOX 280948 Harrisburg PA 17128-0948 14 Commonwealth of Pennsylvania Department of Revenue Bureau of Compliance Clearance Support Department 281230 Harrisburg, PA 17128-1230 ATTN: Sheriff's Sales h� b► ! L f2,. .r o i 1 7 United States of America Internal Revenue ServicekA, Support Group William Green Federal Building Room 3259 600 Arch Street Philadelphia, PA 19106 <-415 Q AooTechnical 16 Domestic Relations Cumberland County P.O. Box 320 Carlisle, PA 17013 17 Tax Claim Bureau 1 Courthouse Square Carlise, PA 17013 18 Commonwealth of PA Department of Revenue Bureau of Compliance Department 280946 Harrisburg, PA 17128-0946 Attn: Sheriffs Sales 19 United States of America do United States Attorney for the Middle District of PA William J. Nealon Federal Bldg. 235 North Washington Avenue, Ste. 311 Scranton, PA 18503 20 United States of America c/o United States Attorney for the Middle District of PA Harrisburg Federal Building & Courthouse 228 Walnut Street, Ste. 220 Harrisburg, PA 17108-1754 21 United States of America c/o Atty General of the United States U.S. Dept of Justice, Room 5111 950 Pennsylvania Avenue NW Washington, DC 20530-0001 22 United States of America c/o Atty General of the United States U.S. Dept of Justice, Room 4400 950 Pennsylvania Avenue NW Washington, DC 20530-0001 Total Number of Pieces Listed by Sender Total Number of Pieces Received at Post Office Postmaster, Per (Name of receiving employee) The full declaration of value's required on all domestic and international registered mail. The maximum indemnity payable or the reconstruction of nonnegotiable documents and r Express Mail document reconstruction insurance is $500 per piece subject to additional limitations for multiple pieces lost or damages in a single catastrophic occurrence. The maximum indemnity payable on Express Mail merchandise insurance is $500, but optional Express Mail Service merchandise is available for up to $5,000 to some, but not all countries. The maximum indemnity payable is $25,000 for registered mail. See Domestic Mail Manual R900, S913, and S921 for limitations of coverage on insured and COD mail. See International Mail Manual for limitations of coverage on international mail. Special handling charges apply only to Standard Mail (A) and Standard Mail (B) parcels. PS Form 3877, August 2000 Complete by Typewriter, Ink, or Ball Point Pen Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY THE P .0 i HOint(j Tib R mill DEC —5 PH is 00 CUMBERLAND COUNT` •PENNS YLVAH1A Onewest Bank FSB vs. Case Number Kelly M. Kenes 2010-1138 SHERIFF'S RETURN OF SERVICE 09/26/2014 12:58 PM - Deputy Jeff Kolodzi, being duly sworn according to law, states service was performed by posting a true copy of the requested Real Estate Writ, Notice and Description, and Sale Handbill in the above titled action, upon the property located at 104 East Marble Street, Mechanicsburg - Borough, Mechanicsburg, PA 17055, Cumberland County. 09/26/2014 12:58 PM - Deputy Jeff Kolodzi, being duly sworn according to law, served the requested Real Estate Writ, Notice and Description, in the above titled action, by making known its contents and at the same time personally handing a true copy to a person representing themselves to be the Defendant, to wit: Kelly M. Kenes at 104 East Marble Street, Mechanicsburg Borough, Mechanicsburg, PA 17055, Cumberland County. 12/03/2014 Ronny R Anderson, Sheriff, being duly sworn according to law, states that this writ is returned "stayed", per letter of instruction from Attorney. SHERIFF COST: $849.04 SO ANSWERS, December 05, 2014 RONNY R ANDERSON, SHERIFF .SV 44 99o!Y ". c) CountySuite Sheriff, 'f'eleosoft, inc. t., s On August 4, 2014 the Sheriff levied upon -the defendant's interest in the real property situated in Mechanicsburg Borough, Known and numbered as, 104 East Marble Street, Mechanicsburg, as Exhibit "A" Nfiled with this Writ and by this Reference incorporated 14 I C5 , L ci < herein. a Date: August 4, 2014 ti By: Real Estate Coordinator LXIII 42 CUMBERLAND LAW JOURNAL 10/17/14 Writ No. 2010-1138 Civil Term Onewest Bank FSB vs. Kelly M. Kenes Atty.: Terrence McCabe ALL THAT CERTAIN plot of ground situate on the South side of East Marble Street at corner of land now or late of Abner M. Jacobs and Margaret L. Jacobs, his wife; thence along the center line of said East Marble Street, North 80 degrees East, seventy-five (75) feet to a point; thence along land formerly of Victor L. C. Hass- karl, and now or formerly of Paul T. Shearer and wife, South 10 degrees East, one hundred sixty-three and seventy-five hundredths (163.75) feet to an iron pin on the northern line of Wild Cherry Alley; thence along the northern line of said Alley, South 8 - degrees West, seventy-five (75) feet to an iron pin at corner of land now or formerly of Abner M. Jacobs and Margaret L. Jacobs, his wife; thence along said land now or formerly of Abner M. Jacobs and Margaret L. Ja- cobs, his wife, North 10 degrees West, one hundred sixty-three and seventy hundredths (163.75) feet to a point in the center line of East Marble Street, the Place of BEGINNING. HAVING thereon erected a brick dwelling house numbered as 104 East Marble Street. Premises: 104 East Marble Street, Mechanicsburg, Pennsylvania 17055. BEING the same premises which Harold V. Swift and Phyllis J. Swift, Trustees Under the Phyllis J. Swift Living Trust Dated January 25, 1996 by deed dated September 25, 2007 and recorded October 22, 2007 in Instrument Number 200737943, granted and conveyed unto Kelly M. Kenes. TAX MAP PARCEL NUMBER: 17 24 0787 164. 66 w PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.1784 COMMONWEALTH OF PENNSYLVANIA : ss. COUNTY OF CUMBERLAND : Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, viz: October 17, October 24 and October 31, 2014 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true. Lisa arie CoWne, Editor SWORN TO AND SUBSCRIBED before me this 31 day of October, 2014 Notary COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL DEBORAH A COLLINS Notary Public CARLISLE BORO., CUMBERLAND CNTY My Commission Expires Apr 28, 2018. The Patriot -News Co. - '. 2020 Technology Pkwy Suite 300 Mechanicsburg, PA 17050 Inquiries - 717-255-8213 CUMBERLAND CO. SHERIFFS OFFICE CUMBERLAND COUNTY COURT HOUSE CARLISLE PA 17013 he atriotNews Now you -know THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Under Act No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin} ss Marianne Miller, being duly sworn according to law, deposes and says: That she is the Assistant Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 2020 Technology Pkwy, Suite 300, in the Township of Hampden, County of Cumberland, State of Pennsylvania, owner and publisher of The Patriot -News and The Sunday Patriot -News newspapers of general circulation, printed and published at 1900 Patriot Drive, in the City, County and State aforesaid; that The Patriot -News and The Sunday Patriot -News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Community Weekly editions which appeared on the date(s) indicated below. That neither she nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That she has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot -News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. 2010-1138 Civil Term Onewest Bank B vs. Kelly M. Kenes tty: Terrance Mc abe ALL THAT CERTAIN plot of ground situate on the South side of East Marble Street at corner of land now or late of Abner M. 'Jacobs and Margaret L. Jacobs, his wife; thence along the center line of said East Marble Street, North 80 degrees East, seventy- five (75) feet to a point; thence along land formerly of Victor L. C. Hasskarl, and now or formerly of Paul T Shearer and wife, South 10 degrees East, one hundred sixty-three and seventy-five hundredths (163.75) feet to an iron pin on the northern line of Wild Cherry Alley; thence along the northern line of said Alley, South 8- degrees West, seventy- five (75) feet to an ir,Qn pin at corner of land or formerly of Abner M. Jacobs and Margaret This ad ran on the date(s) shown below: 10/19/14 10/26/14 11/02/14 Sworn to ubsclb d before me this 17 day of November, 2014 A.D. COMMON fAta_f_ Nry P blic 11 EAL OF PENNSYLVANIA NOTARIAL SEAL Sheryl Marie Leggore, Notary Public Hampden Twp., Cumberland County My Commission Expires July 16, 2018 MEMBER, PENNSYLVANIA ASSOCIATION OF NOTARIES