Loading...
HomeMy WebLinkAbout01-1486CONSECO FINANCE CONSUMER DISCOUNT COMPANY, f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, Plaintiff, VS. STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001 - 01486 CIVIL ACTION - EQUITY NOTICE SAIDIS SHUFF, FLOWF~R & LINDSAY 26 W. High Street Carlisle, PA 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. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 CONSECO FINANCE CONSUMER DISCOUNT COMPANY, f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, VS. STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - EQUITY : NO 2001 - 01486 COMPLAINT FOR MORTGAGE REFORMATION AND IMPOSITION OF CONSTRUCTIVE TRUSTS PARTIES SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 1. Plaintiff is CONSECO FINANCE CONSUMER DISCOUNT COMPANY, f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, a mortgage company duly organized and doing business at 7360 Kyrene Road, Tempe, Arizona 85283. 2. Defendants are STEVEN A. FAILOR and CYNTHIA L. FAILOR, adult individuals, believed to be married, residing at 525 Mount Rock Road, Newville, Cumberland County, Pennsylvania 17241. 3. On November 27, 1998, Plaintiff and Defendants entered into a loan transaction, at which Plaintiffs loaned $200,000.00 to Defendants, and Defendants executed and delivered a Note and Mortgage to secure said debt. A copy of the settlement sheet for said transaction is attached hereto as Exhibit "A", a copy of said Note is attached hereto as Exhibit "B", and a copy of said Mortgage is attached hereto as Exhibit "C". 2 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 4. Defendants defaulted upon their obligations under said Note, and Plaintiffs commenced an action in mortgage foreclosure against Defendants to No. 2000-03316 in the Court of Common Pleas of CumberLand County. Defendants having failed to respond to said Complaint in Mortgage Foreclosure, Plaintiffs entered a judgment by default against Defendants in the amount of $242,150.95, on July 21, 2000. 5. In the settlement documents and in documents relating to the application for the Mortgage, Defendants repeatedly represented that the property to be mortgaged was the property at 525 Mount Rock Road, Newville, Cumberland County, Pennsylvania, which included their residence. 6. The Mortgage in question described the property to be mortgaged as "all that certain property situated in the Township of West Pennsboro, County of Cumberland and State of Pennsylvania, being more fully described in Deed dated 9/12/96, recorded 10/10/96, appearing among the land records of the County and State set forth above, in Deed Book 147, Page 403." 7. After investigation, Plaintiffs have discovered that the property described in Deed Book 147, Page 403, is not the property upon which Defendants dwelling is located, which bears the address of 525 Mount Rock Road, Newville, Cumberland County, Pennsylvania 17241, but, in fact, was a part of a property sold by Defendants to Daniel R. Mains, by Deed dated and delivered August 31, 1998, and recorded in Deed Book 184, Page 502. Said conveyance took place before the settlement between the parties on November 27, 1998. 3 COUNT I. MUTUAL MISTAKE SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 8. Paragraphs 1 through 7 are incorporated herein by reference as though fully set forth. 9. It is believed and averred by Plaintiffs that both parties intended the mortgaged property to be that which includes Plaintiff's dwelling at 225 Mount Rock Road, Newville, Cumberland County, Pennsylvania, as said tract is described in the final subdivision plan for Steven A. and Cynthia L. Failor, dated November 3, 1999, and recorded in Plan Book 81, Page 34, in the Office of the Recorder of Deeds of Cumberland County, which tract consists of the residual of tract No. 1, a part of that property described in Deed Book 108, page 558, and in addition Lot 4A, consisting of 3.9049 acres, which includes a one-story block commercial structure, with the address 535 Mount Rock Road. The legal description of said tract is attached hereto as Exhibit 10. Because of the mutual mistake of the parties, the Mortgage and Notes executed and delivered by the Plaintiffs to the Defendants did not bear the correct description of the property intended to be mortgaged. This mistake was not known by either Plaintiff or Defendants at the time the Mortgage and Note were executed and delivered. Plaintiff has requested that Defendants join in a new Mortgage to reform the defected description, and Defendants have refused to do so. 4 COUNT II. FRAUD SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 11. Plaintiff incorporates paragraphs and all of the allegations contained in paragraphs I through 10, inclusive in this Complaint as set forth herein at length. 12. In the alternative, if the evidence establishes that, in fact, Defendants were aware of the defective nature of the legal description, then by the mistake of Plaintiff and the fraud of Defendants in concealing the defect in the description from Plaintiffs, the Mortgage that was executed did not include the description of the property agreed to be mortgaged by the parties. 13. The inaccurate description of the property on the Mortgage, was consequently the result of a mistake of the Plaintiff and the fraud of Defendants in concealing this knowledge. WHEREFORE, Defendants: Plaintiff demands the following relief against the To prevent further unjust enrichment to Defendants, that the Mortgage executed by Defendants and delivered to Plaintiff be reformed to include the accurate description of the property which was agreed and intended to be mortgaged, and which includes Defendants residence at 525 Mount Rock Road and the commercial property at 535 Mount Rock Road, which description is attached hereto as Exhibit "D". 5 B. That immediately on reformation of the Mortgage Plaintiff be permitted to foreclose on the property so described, and that the Court impose a constructive trust on the property and order Defendants acting as Trustees to transfer the property to Plaintiffs. C. That the Court award to Plaintiff in addition to the principal, interest, penalty and late charges on the aforesaid Mortgage all of Plaintiffs costs and expenses in enforcing the Note and Mortgage, including reasonable attorneys fees of Plaintiffs attorneys. D. Such other and further relief as the Court may deem just and proper, together with the costs of this action. SAIDIS, SHUFF, FLOWER & LINDSAY Attorneys for the Plaintiff James D I.D. #27742 ~/ 26 West High Street Carlisle, PA 17013 (717) 243-6222 SAIDIS SHUFF, FLOWER & LINDSAY Carlisle, PA 6 MCCABE~WEISBERG&CONWAY,PC a 9148053~6457 The undersized. Diane Alessi, hereby ~ertiltes thl~t she is ~he Lead Foreclosure Spe~ialis~ oftl~ Plaintiff, Conseco l~in~ce Cons~m~ Dis~ottnt Comply, f/k/a C~e~n Tree Consumer Discount Company, in the willtin a~lion, an iha~ she is authorized Io m~ke this v~rification and that the for~oin~ fa~ts are tl'~e and ¢on-o~t to the bes~ of her knowle~lile, information and belief and furthor states that false statements herein are made s~bje~t ~o the p~mal~ies of 11~ PA.C,$,§4904 rt~h~ti~§ to ~.ulsworn falsifieatio~ to authorities, A~P % 9807215528 LN # 69-0146478-~ NOTE BORROWF-,R'$ PROMISE TO PAY ~m for a lo~n "~"). plus in~. ~..~A~.~!~.,~!~....~..~!!....~i...~ l~! ................................................................................. ~ ~ ~n~ ~y ~r of ...,.~,:}~..... ~. ~ ~l ~ ~ ~ ~ ........... .P~..~-,..$~.~Y .................... i~ ~ ~ui~ by ~is ~on 2 is ~e ~ [ will ~y ~h ~ ~ a~ ~y de~ult ~ itt of ~s No~. PAY~S pay p6~ ~d i~t will ~ ....... ~9~. .................... ~e~ of $,.~.~.~.:.~ .................................... ~ on the ................ 3.~ ................................ of ~ ...,.~ ......................................................... ............................................................. ~i~ on ....~.~..~t..A~).?. .......................... (B) Mm~ty ~ md ~ of ................................................................................................................................. or ~ a di~ 4. ~0~O~R+S RIGHT TO ~PAY ~. ~ C~RGES ~) No Wdv~ By N~ 7..~I~ING OF NOTICES Unle~ applicable law ~:luires a dit~nt nmhod, a.y noti~ that mt~;t be given to me under this Note Mil be g~vno by delivoring it or by malli.g it by first cis~s mill Io It~ at fl'~ Pto~y Add~ above or at a dlff~'~r~ aflth~s if I give tfu: No~: Holder a notice of my differc'nt address. Any notice ~m muan be given to the No~ Nolder under this Nme will be givou by malting it by firat cAaas nodl to th~ N~e 14oldot at the edd~ staled in Sect~n 3(B) ma page I of this Note or at a different ~ if I am given a no6ce of that diff~nt edd~ss. $. O~LIG.4,TION$ OF IW..RSON$ UNDER THIS NOTE If mote than one pa~on signs this Note, each par~on is fully ~nd pe~medly obligated to keep all of ti~ I~omise~ made in this Note, including the pmm~s~ to pay th~ full anmllt ow'ed. Any pat~on v/ho is a guanoltoL ~u'~ty or endorser of this No~ ia al~o obligated to do tbe~e things. Any pervo who tek~ over ii.se obli~ulons, indoding the ebligatlo,a of a ~atnotot. surety or eddom~r uf this No~e, ie also obligated to ke~ all of the pmmlsus nmde in this No~. Tbe Note Holder may eafutze iss righte unapt this Note a~nst each pa~on individually or a~alsut all of us tog~.-thet. This m~u~ that any one of us may I~ ~uire~ to pay all of the amounts ~ un~r ~l~s Nme. 9. WAIVI~RS I and any other person who be~ obli~adom under this No~e waive th~ rights of pr~s~n,.eot and notice of disi¥.mot. 'Px~-ntment" means ~ right to ~quit~ the Nme Holde~ to demand paymem of antomua du~, 'Notic~ of dishonot' memts the right to r~quir~ the Note Holdm to giw noti~ to other l~t~ons that amoonts duc have no~ ~ paid. 10. SECURED NOTE In addition to the protections giwn to th~ Note Holder under ~ Nm~. a Mongnge. Deed of 'fm.~ or Security Deed (the "Security IImtun~n~'). dat~l thc same date as this Note. p~t~l~ tbe Note Holder from po~ible ~ which mi,,hi r~alt if I do not keep thc promi~.~ which 1 ~ in this No~. That Secatity Instruntent describes how and under what ~odditions 1 may be ~quited to make immediate paysamt in full of all ~mounte I owe under tl~ Nme. Se~e of throe conditions a~ de~d~l as follows: Tran~er of Ihe I~y ~r n ~ene~l~lal Inttrest in ]~a-rmvtt. If all or any part of th~ Ptoparty or any intet~.nt in it is sold or tran~err~d (or if a ben~fieisl inta~s~ in Bom~wet is sold or trana~e, tred and Botx,~/~er is net a nam~l person) without Lender's I~rior written con~ent, Ledder may, at i~s option, requi~ immediate payment in full of ali sums seconal by this Security instrument. Howe'er, this option sludi not be ex~ised by Lender if ex~su ia pmhiblted by federal law as of the dat~ of this S~curity In~uumem. if Lendo- ~xercise~ this option, L~ltdet shall give Borrower notice of acceleration. ~lte noti~ shall pmvlde a period of n~ les~ tiara 30 days flora the date thc notice is dellve~i or mailed within which Botn~wer mus~ pay all sum~ secured by this $~rity lt~rumcnt. ]f Borrower fail.~ to pay these sums prior to the expiration of thls period, L~nder nmi invok~ aay remedi~ parmi~ed by this Security Instnm~nt without of ~ Nme.] ........................................................................................................................ I MUST RELAY 'I'RE WITNESS THE HAND(S) AND SEAL(S) 07D~RSIGNED. ~/ I~n O~umt Ontyl .'& , C.,-,-~ua~ea~ o~ Pamsylvaaia Space Above OPEN-E MORTGAGE ~s Mo~gage s~s MORTGAGOR: S~even A Fa~lo= and ~h~a LENDEP~, [] If check~, refer to the ~moh~d Addendum incorporated l~min, for additional Mortgagors, their signatures and ~nowl~gmems. Grehn Tree Consumer Discount Company 3401 Hartzdale Drive Suite 118 Camp Hill, Pennsylvania 17011 CONVEYANCE. For good and valuable consideration, the m:eipt and sufficiency of which is at:kl~wl~l~.~e.d, ? tO' the Secured Debt (~fmed below) and Mongagor's perform,,ee undex this S~-'urity Insm~meui, Mo~gal~grabtz. bargains, conveys an~ mongagas to Leader the following described property: ~-~r-'~. o; ' See Exhibit I ~ . o . . cumberland . The proper~ ~ Iocau~ m ....................................................................... at ................................................ ................... , .......................................................................................... , rem~J~ma ......................... (z~ Together with all fights, easemems, aq~es, royalties, ml.e~al tights, oil a~l gas fi~hts, all water and riparian rights, ditches, and ~rater stock and all existing and furore improvising, structure, futmres, and teplacemems that may now, or at a~' gme in the fomre, be pan of thc ~,eai ~slate described above (all r~f~red to as .... $ ................................................. ~... T~S llm,laUon of ~ do~ ~ mclulie ~ alld oilier fees charges validly made purma~ m this Secmi~ ~ Al_so. this limitation does aot appl7 to advances made under the terms of d~s Secmit7 Instnm~at to pro~c~ Leader's s~mit7 ~ to periam any of the cove~.~, co-t.~,--4 in this Security SECURED DEBT AND FI/lq/RE ADVANCES. The term 'Secured Debt' is defined as follows: A. Debt h~'un'ed umier the tenns of all promlss0~y note(s), comract(s), guarani(s) or o~he~ twidence of debt desctlbed below au~ all their extemiov~, teaewals, mo4~ficatlons or sul~sdtufions. (When refereeing the debts below it is · uggested that you incl.de itenu such as borrowers' names, note amounts, interest rat~, metarity da~e~. ~tc.) Note dated November 27, 1998, between Green Tree Consumer Disc6un~ company and Steven A Pallor, Cynthia L Pallor, for $200,000.00, maturing 10. B. All future advances from Leader to Mortgagor or other future obligatiom of Mortgagor to Lender under any promissory note, con~a~, guaranty, or other evidence of debt executed by Motngagor in favor of Leaner executed after tiffs Security Instrument whether or not this Security Instrument is specifically ref~enced. If more th~n one person signs this Security lmtmment, each Mortgagor agrees that this Security lnstrmnent will sectu~ all future advances and future obligations ahat are given to or incurred by any oue or more Mortgagor, or any one or more Mortgagor and others. AH future advances and other future obligations are secured by this S~urity In.smiment even ~:mgh all or pan may not yet be advanced. All futur~ advances and other future obligations are secured as if made on the date of ~ Security lnstrun~nt. Nothing in th~ Security Instrumem shall consthut~ a commitment to make additional or future loans or advances in any amount. Any such commitment must be agreed to in a separate w~iting. C. All obligations Mortgagor ov~ to Leader, which may bier arise, to the extent not prohibited by law, hlcluthng, but not limited to, liabilities for overdrafts relating to any deposit account ~nt between Mortgagor and Lender. D. All addigonal stuns advanced and expenses incnrt~ by Lender for insuring, preserving or otherwise pwtecting the PropaRy and its value and any other sums advanced and expenses incurred by Lender under the terms of this Security Instrument. This Security Insmm~nt will not secure nay other d~bt if Leader fails to give any required notice of the right of rescission. PAYMENTS. Mortgagor agt~s that all payments under the Secured D~bt will be paid when due and in accordance with the terms of the S~cured Debt and this Security In.m'ument. WARRANTY OF TITLE. Mortgagor warrants that Mortgagor is or will be lawfully seized of the estate conveyed by this Secmity Instrument and has the right to grant, bargain, convey, sell, and mongaga the Property. Mortgagor also warrants that the Property is unencumbered, except for encumbrances of record. PRIOR SECURITY INTERESTS. With regard to any other mortgage, degd of trust, security agraement or other lien document that created a prior security interest or encumbrance on ti~ Properey. Mongngo[agn~es: .- A. To ~ all payments when due and to perform or comply with all covenant~. B. To prompdy deliver to Leader any notices that Mortgagor receives from the holder. C. Not to allow any modification or extemion of, nor to requ~t any furore advances under any note or agreement secured by the lien documem without Le~er's prior written cons~t. CL&IMS AGAINST TITLE. Mortgagor will pay all tax~s, assesan~nts, liens, enoumbranc~, lease payments, gtmmd rents, utiliti~'s, and other charges relating to th~ Pmparty when due. Lender may require Mortgagor to provide to Lender c. opie.s of all notices timt such' amoums are due and the receipts evidencing Mortgagor's paymem. Mortgagor will defend title to the Property agail~t any clnlro¢ that wotllti hnl:~ir the lien of this Security lmuumem. Mortgagor agrees to assign to Leader, as requested by Lender, any rights, claims or defenses Mortgagor may have against parries who supply labor or materiais to malmain or improve the Property. DUE ON SM~,E OR ENCUMBRA~ICE. Lender may, at its option, dechre the entire balan~ of the Secured ~ to be imm,-dia,qy due and payable upon the creation of, or centtact for the creation of, any lien, encanlbi~uge, transf~ or gila of the Pmlm~. This right is subject to the restrictions imposed by federal law (12 C.F.R. 591), as appli~thle. This covenant shall run with the Property and shall remain in effect until thc Secured Debt is paid in full and this Security ln~h'atuent is released. PROPERTY CONDITION, ALTERATIONS AND INSPECTION. Mortgagor will I~9 fl~ Property ia good condition nnd n"mtr~, all repairs that am reasonably necessal7. Mortgagor slmll not commit or allow any waste, impalmlent, or demiotmion of the Property. Mortgagor will keep the Property free of noxious w~d.s and grassy. Mortgagor agrees that the nature of the occa~pancy and use will not substantially change without Leaner's prior written consent. Mortgagor will not pc'trait any change in an,/lice~e, resuictive covenant or easement without Lender's prior whr~en consent. Mortgagor will n~ify Leaner of ail dm~nands, prnceedings, claims and aadons against Ivtongagor, and of any loss or damage to thc Property. .s00K:tS02n 823 L~nder or Lender's agents may, at Lender's option, enter thc Property at any reasonable time for the purpose of inspecting the 9roparty. Lender shall give Mortgagor notice at the time of or before' an insp~'cfion specifying a reasonable purpose for the inspection. Any insp~tion of thc Property shall be entirely for Lender's bc~:fk and Ivlongagor will in no way rely on l~dcr's ins~a~on. 11. AUTHORITY TO PERFORM. If Mortgagor ..fails to perform any duty or any of the covenants contained in this Security Instrumem, Lender may, without notice, perform or cause them to be performed. Mortgagor appoims Lender as attorney iu fact to sign Mongagor's name or pay mty amoum necessary for performance. Leader's right to perform for Mortgagor shall not create an obligation to perform, and Lender's failure to perform will not preclude Lender from exercising any of Lender's other rights under the law or this Security lnstrumem, if any construction on the Property is discontinued or not carried on in a reasonable manner, Lender may talin all steps necessary to protect Lender's security interest in the Property, including completion of the construction. ASSIGNMENT OF LEASES AND RENTS. Mortgagor irrevocably grants, bargains, conveys and mortgages to Lender as additional security all the right, title and imerest in and to any and all existing or future lr. ases, subleases, and any other written or verbal agreements for the use and occupancy of any portion of the Property, including any extensions, renewals, modifications or substitutions_ of such agreements (all xeferred to as "Leases') and rents, issues and profits (all referred to as "Rents'). Mortgagor will promptly provide Lender with true and correct copies of all existing ~ future Lea~s. Mortgagor may collect, receive, enjoy and use the Rents so long as Mortgagor is not in default under the terms of this Security Insmanem. Mortgagor agrees that this assignment is immediately effective between the Ira-flies to this Security Instrument and effective as to third patties on the ~corcling of this Secm'ity Instrument, and this assignment will remain effective until the Obligations a~e satisfied. Mortgagor agrees that Lender is entitled to notify Mortgagor or Mongagor's tenants to m~,ke payments of Rmm due or to become due directly to Leader after such recording, however Lender agrees not m notify Mortgagor's tetmnt~ until Mortgagor defaults and Lender notifies Mortgagor of the default aml denmnds that Mortgagor and Mortgagor's tenams pay all Rents due or to become dna direrdy to Lender. On receiving notice of default, Mortgagor will endorse a~l deliver to Lender any payment of Rents in Mortgagor's possession and will r~ceivc any Rems in trust for. Lender and will not commingle the Rems with any other fun~. Any amounts collected will be applied as provided in this Secu~i,'ty Instrument. Mortgagor warrants that no default exists under the Leases or any applicable landlord/tenant law. Mortgagor also agrees to maintain and require any temmt to comply with the terms of the Leases and applicable law. 13. LEASEHOLDS; CONDOMINIUMS; PLANNED UNIT DEVELOPMENTS. Mortgagor agrees to comply with the provisions of any lease if this Security Instrument/s on a leasehold. If the Proper~y includes a unit in a condominium or a planned unit development, Mortgagor will per/onn all of Mongagor's dudes under the covevn'~t% by-laws, or regnflations of the cond~mininm or plannad unit development, DEFAULT, Mortgagor will be in default if any party obligated on thc Secured Debt falis W make paymem when due. Mortgagor will 'be in default if a breach occurs under the terms of this Security Insanunem or any other document executed for thc propose of creating, securing or guarantying the Secured Debt. A good faith belief by Lender that Lender at any time is insecure with respect to any person or entity obligated on the Secured Debt or that the prospect of any payment or the value of th~ Property is impaired shall also constitute an event of default. REMEDIF--S ON DEFAULT, In softie inctar~es, federal and state hw will tequire Lelx~r to provide Mortgagor with notice of the right to cure or other notices and may emablish time schedules for foreclosure actions, Subjest to these limitations, if any, Lender may nccelemte the Secured Debt and foreclose this Security Instrument in a manner provided by hw if Mortgagor is in default. At the option of Lender, all or any p~xt of the ag, teed fees and charges, accrued interest and principal ~hnll become immediately duc and payable, after giving notice if required by hw, upon the occorrence of a default or anytime thereafter. In addition, Lender xhall be entitied to all the remedies provided by taw, thc terms of the Secured Debt, this Security Inatmment and any related documents. Ail remedies are distinct, cumuhtive and not exclusive, and thc Lender is entitled to all remedies pwvided at hw or equity, whether or not expressly set forth. The acceptance by Lender of a~y sum in payment or partial payment on the Scented Debt after the balance is due or is accelerated or after foreclosure proceedings ~re filed shall not constitute a waiver of Lender's right to require complete cure of any existing default. By not exercising any tent~'dy on Mongagor's defauk, Lender does not waive Lender's fight to later consider the event a default if it continues or happens again. 16. EXPENSES; ADVANCES ON COVENANTS; ATTORNEYS' FEES; COLLECTION COSTS. F. xc~pt when prohibited by law, Mortgagor agrees to pay all of Lender's expenses if Mortgagor breaches any covenant in this Security Instrument. Mortgagor will also pay on demand any amount incurred by Lender for insuring, inspecting, presenting or otherwise protecting the Proper'~y and Lender's security interest. These expanses will bear interest from the date of the payment until paid in full at the highest interest rote in effect as provided in the terms of the Secured Debt. Mortgagor agrees to pay all costs and expenses incurrod by Lender in collecting, enforcing or protecting Lender's rights and remedies under this Security Instrument. This amount may include, but is not limited to, attorneys' fees, court costs, and other legal expenses. This Security Instmmem shall remain in effect until released. Mortgagor agnes to pay for any reoordatioa costs of such release. 17. ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES. As used in this section, (1) Environmental Law means, without limitation, the Comprehensive Enviromnontal Rehouse, Compensation and Liability Act (£ERCLA, 42 U.$.C. 9601 ex seq.), and all other federal, state and local laws, regulations, ordiannce~, court ordets, a~mmey general opinions or intetprerivc letters concerning the public health, safety, welfare, environment or a ha?~rdoes substance; ~ (2) Hasatdous Sal~s~i~l~ me~l~ any toxic, l'adlonctive or h~:'~rdons m~ter~l, waste, poUu~nt or Conmmln~nf Which h~ chatl~'~riStiC~ whiCh ~xler the subsum~e dangerous or potenriall¥ dangerous to the public health, safety, welfare or environm~t. The term ii.hide, vfithout limitation, any substancas defined as 'h~-~,xious material,' 'toxic substances,' 'h~z. rdous waste' or 'hazardous substance' trader any Bnvironmcmal Law. Mortgagor represent, s, warrants and agrees that: A. Except as previously disclosed and acknowledged in writing w Lender. no H~ardous Substance is or ~ be Incaw'd. stored or released on or in the Property. This restriction does not apply to small quantities of Hazardous Substances that ate geLemliy recog~iznd W be appropriate for the normal usc and malntellance of the Property, B. Except as previously disclosed and acknowledged in writing to Lender. Mortgagor and every tenant have been, are, and shall remain in full compllauca with any applicable Environmental Law. C. Mortgagor shall immediately notify Lander if a release or threatened release of a Kazardous Substance occurs on, under or about the Property or there is a violation of any Environmental Law concerning the Property. In such au event, Mortgagor ih~ll ~ all n~ce~l'y t~ltedlal action in accord:~-ve with any Environmental Law. D, Mortgagor shall immediately notify Lender in writing as soon ss Mortgagor has reason to believe them is any pending or threatened investigation, claim, or proceeding relating to thc release or threatened release of any Hazardous Substance or the violation of any .F, nvironmemal Law. 18. CONDEMNATION. Mortgagor will give Lender prompt m~ice of any pending or threatened action, by privme or public entities to purchase or take any Or all of the Propany flu'ough comte'mn-don, eminent domain, or any other means. Mortgagor anthmizes Le~xler to inte~e~ in Mongagor's r~me in any of the above dgacribed actious or claims Mon~l:n' asal~lS tO Lergler the p~eeds of any award oi ehim for danlages connected with a colldemr~tiOIl or other tak/ng of all or any pan of the Property. Such prne.~,ds shall he considered payments and will he applied as provided in ~ Securhy inanmnoaut. This assigumnm of proc~ls is sub. kc~ w the terms of any prior mortgage, d~d of untst, s'ncufiVy ag~emuut or o~agr lieu document. 19. INSURANCE. Mongagor ,~h:,tl ke~,Prupen'y insurtxi again~ loss by fire, flood, theft and other h,,,'-,'ds and risks re~ouably associated with the Pwpeny due to i~ type and location. This insurance shah be maintained in the amo.,r~ and for the periods tim Lender requires. The ivsurance cartier providing the insoranoe shall be chosen by Mortgagor subject w Lender's approval, which shall nol he imreasoltably withheld. If Mongngor fails to malpmln th~ cove~ i:leSCli~ above, I ~.mt~r II~y. at Lender's option, obtain coverage to protect Lender's righis in the Property according ~o the terms of this Security Insmunent. All/msura~e policies and renewals ~hall be acceptable to Lender and shall include a slumlord *mortgage clause" and, where applicable, 'loss payee clause.' Mortgagor shall imm~di~efy notify Lender of canceUation or te~on of thc immmtu:c. Lender shall have the right to hold the policies and renewals. If Lender requires, Mongago~ shall immediately give to Lender all receipts of paid premiums and renewal notices. Upon loss, Mortgagor shall give immediate notice to the insurance carrier and Lender. Lender may make proof of loss if not made immediately by Mortgagor. Unless otherwise agreed in writing, all insurance proceeds shall be applied to the restoration or repair of thc Property or to the Secured Debt, whether or not then due, at Lender's option. Any applicadon of proceeds to principal shall not extend or postpp~e the due date of the scheduled payment nor change the amount of any payment, Any excess will be .paid to the Mortgagor. If the Proper~ is acquired by Lender, ldongagor's right to any insurance policies and proceeds resulting from damage to th~ Property before the acquisition shall pass to Lender to thc extem of the Secured Debt immediately before the acquisition. 2,0. ESCROW FOR TAXES AND INSURANCE. Unless otherwise provided in a seperat~ agreement, Mortgagor will not be required to pay to Lender funds for taxes and insurance in escrow. 21. FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Mortgagor will provide to Lender upon request, any final:iai statement or information Lender may deem reasonably necessary. Mortgagor ~ to sign, cb:liver, and file any additional documents or certifications that Lender may consider necessary w perfect, contimie, and presentc Mongagor's obligatiom under this Security Instrument and Lender's lien status on the Property. JOINT AND INDIVIDUAL LIABILITY; CO-SIGNERS; SUCCESSORS AND ASSIGNS BOUND. A~I duties under this Security Instrument are joint and individual. If Mortgagor signs this Security l~tmment but does not sign an evidence of debt, Mortgagor does so only to mortgage Mortgagor's interest in the Property to secure peyntem of the Setaued Debt and Mortgagor does not agr~ to be personally liable on the Secured Debt. If this Security Instrument secures a guaranty between Letak:r and Mortgagor, Mortgagor agrc.~ to waive any fights that may prevent Lender fi.om briaging any action or claim against Mortgagor or any party indebted under the obligation. These rights may include, but are not limited to, any anti-deficiency or one-action laws. Mortgagor agrees that Lender a.ed any patty to this Security I~mmlellt may extend, modify or make any ehanL2e in the terries of this Secmity lnstmmem or any evidence of debt without Mongagor's consent. Such a change will not release Mortgagor fi.om the terms of this Security Instru-mem. The: duties and benefits of this Security I~tmment shall bind and benefit the successors and assigns of Mortgagor and Lender. 23. APPLICABLE LAW; SEVF..RABILITY; IlNTERPRETATION. This Security Insmm~em is governed by thc laws of the jurisdiction in which Lender is located, except to the extent otherwise required by the laws of the jurisdiction where thc Property is located. This Security hrstmmem is complete and fully integrated. This Security Instrument may not be amended or modified by oral agreement. Any snction in this Security Lusmm~ent, attachments, or any agreement related to the Secured Debt that conflicts with applicable law xitill not b¢ effective, unless thar law expressly or impliedly permits the variations by written agreement. If any section of this Security Imtrument cannot be enforced according to its terms, that section will be severed and will not affect the enforceabiliry of the remainder of this Security Instrm~ent. Whenever used, the singular shall include the plural and the plural the singular. The captions and headings of the sectin~.s of this Security Instrument are for conve~ieuee only and are not to be used to interpret or define the terms of this Security In~trt~Itont, Time is of the essence in this Security lnsu'ument. 24. NOTICE. Unless otherwise required by law, any notice shall be given by delivering it or by mailing it by first m mail to the appmpriare party's address on page I of this Security Instrument, or to any other address designated in writing. Notice to om: mortgagor will be deemed to be notice to all mortgagors. 25. WAIYERS. Except to the extent prohibited by law, Mortgagor waives any right to appraisement relating to the Property. OTHER TERMS. If checked, the following are applicable to this Security Instrument: · [] Line of Credit. The Secured Debt in=ludes a revolving lin~ of credit provision. Although the Secured Debt nmy be ~?xluced to a z~ro balm~:, this Semui~ Instrument will reannin in effect until released. [] Construction Loan. This S~alfity Instmmem secures an obligation incurred fur the construction of an improvement on the Propetay. FI Fix'lure Filing. Mortgago~ grants to Lender a secodty int~est in all goods that Mortgagor own5 now or in the future and Lhat are or will become fixtm~ related to the Property. This Security In.mument suffices as a financing .,~att,.mellt and any carbon, photographic o~ other reproduction nmy Ix: filed of ~cord for purposes of Article 9 of the Uniform Commemial Code. [] Pm-~hnse Money. This Security lnsmmaent secures advances by Lender used in whole or in part to acquit= the Property. Accordingly, this Security Instnnnout, and the lien hot=under, is and shall be cons.ned as n pumlmse money mottgaga with all of the rights, prioritie~ and benefits thereof undez ti~ laws of th* Commonv~alth of penn~lvnnla [] NOTICE TO BORROWER: THIS DOCI.IiVIENT CONTAINS PROVISIONS FOR A VARIABLE INTEREST RATE. [] Riders. The cuw.nnt~ and n~ment~ of each of the rid*rs checlmd below are ineot, pomted into and suppl~ncnt and amend fl~ t~rnu of ~ Security Insmmaent. [Check all applicable boxes] [] Condominium Rid= [] Planned Unit Development Rid*r [] Othe~ ................................................... [] Additionnl Terms. SIGNATURES: By signing below. Mortgngot, intmaling to be legally bound hereby, agrees to the tenn~ and covennnt~ contained in this Security Instrum=nt and in any at~aclm~nts. Mortgagor also acknowledga~ receipt of a copy oJ~ thls Security Ir~a.~t~ut on thcda.~.on,,el. /I .............. ......... , in witnes~ whereof, I hereumo set my hand and official seal. . .. . ,/ I ~ . · ,~ I ..................................... ~'~~~t~ .................................... 82'7 EXKIB'rT A T.eC)'&I DefJcr:L~2:Lon: ALL THAT C~RTAIN PROPERTY SITUATED IN THE TOWNSHIP OF WEST PENNSBORO, COUNTY OF CL~BERLAND AND STATE OF FENNSYLVAlqW_A, BEING MORE FULLY DESCRIBED IN DEED DATED 9/12/96, RECOED~D 10/10/96, APPEARING AMONG THE LAND RECORDS OF TH~ COIH~TY AND STATE SET FORTH ABOV~ IN DEED BOOK 147, PAGE 403. Parcel ID: 46-09-0521-031 State of Pennsylvania t ~OuntyofCumbedand~ 86 eao~r~ed in,the office for the recording of ect, l~._and ~r a~ Coum~:~:~... in ~B~~ p~T~~a~ .828 LEGAL DESCRIPTION ALL THAT CERTAIN tract of land situate in West Pennsboro Township, Cumberland County, Pennsylvania, being more particularly bounded and described as follows: BEGINNING at a nail in the center line of Mt. Rock Road (T-325), at the dividing line of the Western line of a 50 feet wide private right-of-way and Lot No. 7 of Final Subdivision plan for Steven A. and Cynthia L. Failor, recorded in Plan Book 78, page 32; thence along said private right-of-way, North 31 degrees 30 minutes 00 seconds West, a distance of 1,260.40 feet to an iron pin set at the Northeastern corner of Lot No. 4-B as shown on the hereinafter mentioned subdivision plan; thence along said Lot No. 4-B, South 53 degrees 00 minutes 00 seconds West, a distance of 371.25 feet to a point; thence South 35 degrees 35 minutes 00 seconds West, a distance of 205.00 feet to a point; thence South 53 degrees 00 minutes 00 seconds West, a distance of 38.25 feet to a point at the Northeastern corner of Lot No. 4; thence South 37 degrees 00 minutes 00 seconds East, a distance of 327.52 feet to a point on the dividing line of Lot No. 2 of Final Subdivision Plan for Steven A. and Cynthia L. Failor, recorded in Plan Book 71, page 84; thence along said Lot No. 2, South 53 degrees 00 minutes 00 seconds West, a distance of 450.25 feet to a point in the center line of aforesaid Mt. Rock Road (T-325); thence along said center line North 77 degrees West, a distance of 800.00 feet, more or less, to a point at the line of lands now or formerly of Francis Mains; thence along said lands, North 03 degrees West, a distance of 313.50 feet to a point; thence North 45 degrees East, a distance of 471.90 feet to a point; thence North 36 degrees 07 minutes 23 seconds West, a distance of 257.48 to an iron pin set at the Southwestern corner of Lot No. 5 of Survey/Subdivision for Steven A. and Cynthia L. Failor, recorded in Plan Book 77, page 61; thence along said Lot No. 5 North 48 degrees 33 minutes 33 seconds East, a distance of 540.45 feet to an iron pin set; thence North 60 degrees 24 minutes 47 seconds East, a distance of 522.72 feet to an iron pin set at line of lands now on formerly of Glenn Motter; thence along said lands South 31 degrees 30 minutes East a distance of 2,068.00 feet, more or less, to a point in the center line of aforesaid Mt. Rock Road (T-325); thence along said center line North 87 degrees 48 minutes 43 seconds West, a distance of 57.92 feet to a point, the Place of BEGINNING. Being residual Tract No. 1, Lot No. 4 and Lot No. 4A of Final Subdivision Plan for Steven A. and Cynthia L. Failor, dated November 3, 1999, and recorded in Plan Book 81, page 34. CONSECO FINANCE CONSUMER DISCOUNT COMPANY, f/Ida GREEN TREE CONSUMER DISCOUNT COMPANY, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION - EQUITY vs. · NO. 2001 STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants. WRIT OF SUMMONS TO STEVEN A. FAILOR and CYNTHIA L. FAILOR, DEFENDANTS: You are hereby notified that CONSECO FINANCE CONSUMER DISCOUNT COMPANY f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, Plaintiff has commenced an action against you. Date: March /L/+~ ,2001 Carl/~ PA CONSECO FINANCE CONSUMER DISCOUNT COMPANY, F~a GREEN TREE CONSUMER DISCOUNT COMPANY, VS. STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - EQUITY :NO. 2001 PRAECIPE TO THE PROTHONOTARY: Please issue a Writ of Summons in Trespass against Defendant and request that the Cumberland County Sheriff make service upon Defendants at 525 Mount Rock Road, Newville, Pennsylvania 17241. SAIDIS, SHUFF, FLOWER & LINDSAY Attorneys for the Plaintiff James L~ blow, er, Jr. I.D. #27~ 26 West High Street Carlisle, PA 17013 (717) 243-6222 CONSECO FINANCE CONSUMER DISCOUNT COMPANY, F~a GREEN TREE CONSUMER DISCOUNT COMPANY, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - EQUITY vs. : NO. 2001 - ! ~''~ STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants. PRAECIPE TO THE PROTHONOTARY: Please enter a lis pendens against Defendants in this matter. SAIDIS, SHUFF, FLOWER & LINDSAY Attorneys for the Plaintiff March / 2, ,2001 26 West High Street Carlisle, PA 17013 (717) 243-6222 CONSECO FINANCE CONSUMER DISCOUNT COMPANY, f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, Plaintiffs STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 2001-1486 PRAECIPE TO ENTER APPEARANCE To Curtis R. Long, Prothonotary: Please enter our appearance on behalf of the defendants, Steven A. Failor and Cynthia L. Failor, in the above captioned case. Respectfully submitted, IRWIN, Mci(NIGHT & HUGHES Date March 26, 2001 Mark D. Schwartz, Esq. Supreme Ct. I.D. # 70216 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorneys for defendants CONSECO FINANCE CONSUMER DISCOUNT COMPANY, f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, Plaintiffs STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 2001-1486 CERTIFICATE OF SERVICE We, Roger B. Irwin, Esq., and Mark D. Schwartz, Esq., hereby certify that a copy of attached Praecipe to Enter Appearance was served upon the following by deposit'mg a true and correct copy of the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the date referenced below and addressed as follows: James D. Flower, Jr. Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, PA 17013 IRWIN, MeKNIGHT & HUGHES Date March 26, 2001 By: By: Roger B. lrw~, ~sq. Supreme Ct.].D~ 06282 MarleD. Schwartz, Esq. Supreme Ct. I.D. # 70216 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorneys for defendants ~' SHERIFF'S CASE NO: 2001-01486 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLanD CONSECO FINANCE CONSLrMER DISC VS FAILOR STEVEN A ET AL RETURN - REGULAR WILLIAM DIEHL , Cumberland County, Pennsylvania, says, the within WRIT OP SUMMONS was served upon FAILOR STEVEN A DEFENDANT , at 0018:20 HOURS, on the at 525 MOUNT ROCK ROAD NEWVILLE, PA 17241 by handing to JASON FAILOR (ADULT SON) a true and attested copy of WRIT OF SUMMONS Sheriff or Deputy Sheriff of who being duly sworn according to law, 16th day of March the 2001 together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 5.58 Affidavit .00 Surcharge 10.00 .00 33.58 Sworn and Subscribed to before me this ~ ~_a day of ~ ~/ A.D. ~othonotary Se Answers: R. Thomas Kline 03/19/2001 SAIDIS, SHUFF, FLOWER By: De~~ SHERIFF'S RETURN - REGULAR CASE NO: 2001-01486 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CONSECO FINANCE COMSUMER DISC VS FAILOR STEVEN A ET AL WILLIAM DIEHL Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to says, the within WRIT OF SUMMONS was served upon FAILOR CYNTHIA L the DEFENDANT at 0018:20 HOURS, on the 16th day of March _, at 525 MOUNT ROCK ROAD NEWVILLE, PA 17241[ by handing to JASON FAILOR (ADULT SON} a true and attested copy of WRIT OF SUMMONS together with law, 2001 and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6 Service Affidavit Surcharge 10 16 00 00 00 00 00 00 Sworn and Subscribed to before me this ~ day of ~ ^~_~ ~ / A,D. ~ ~Prothonotary ' So Answers: R. Thomas Kline 03/19/2001 SAIDIS, SHUFF, FLOWER Deputy~iff CONSECO FINANCE CONSUMER DISCOUNT COMPANY, f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, Plaintiff, VS, STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001- 01486 CIVIL ACTION - EQUITY ACCEPTANCE OF SERVICE I, MARK D. SCHWARTZ, ESQUIRE, hereby accept service of the Complaint filed in the above captioned case, on behalf of the Defendants, STEVEN A. FAILER and CYNTHIA L. FAILER.B ~ ~'~~~'~ Mark D Schwartz, Esquire 60 West Pomfret Street Carlisle, PA 17013 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Date: ~j~E~ ,2001 CONSECO FINANCE CONSUMER DISCOUNT COMPANY, f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, PLAINTIFF, STEVEN A. FAILOR and CYNTHIA L. FAILOR DEFENDANTS. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2001-01486 CIVIL TERM _. PRELIMINARY OBJECTIONS OF Tl:l~ DEFENDANTS TO THE PLAINTIFF'S COMPLAINT AND NOW, this 13th day of August, 2001, come the Defendants, Steven A. Failor and Cynthia L. Failor, by and through their attorneys, IRWIN, McKNIGHT & HUGHES, and make the following Preliminary Objections to Plaintiff's Complaint and support thereof of the following: PRELIMINARY OBJECTIONS FOR FAH,URE TO STATE A CLAIM UPON WHICH RELIEVE CAN BE GRANTED 1. Plaintiff Conseco Finance Consumer Discount Company, f/k/a, Green Tree Consumer Discount Company, filed a Complaint to the above-referenced docket on or about June 2 l, 2001, in the Court of Common Pleas of Cumberland County. 2. Plaintiff in its wherefore clause requests that the mortgage be reformed to include a legal description which includes the property located at 525 Mount Rock Road, Newville, Cumberland County, Pennsylvania. 3. The Defendants do not own the property or residence located at 525 Mount Rock Road and therefore the relief requested cannot be granted. 4. In light of the fact that the relief requested cannot be granted, the Complaint should be dismissed or in the alternative the Plaintiff should amend its prayer for relief. WHEREFORE, Defendants, Steven A. Failor and Cynthia L. Failor, respectfully request that Plaintiffs Complaint be dismissed or in the alternative be required to emend its prayer for relief in its Complaint. By: IRWIN, McKNIGHT & HUGHES Mark D. Schwartz, Esquire 60 West Pomfret Street Carlisle, PA 17013 717-249-2353 Supreme Court I.D. No: 70216 Date: q~ ~ /'~/t'~0 ] Attomey for Defendants, Steven A. Failor and Cynthia L. Failor CONSECO FINANCE CONSUMER DISCOUNT COMPANY, f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, PLAINTIFF, STEVEN A. FAILOR and CYNTHIA L. FAILOR DEFENDANTS. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 2001-3825 CIVIL TERM CERTIFICATE OF SERVICE I the undersigned hereby certify that on this th 13 day of Augnst, 2001, a copy of the Preliminary Objections of the Defendants to the Plaintiff's Complaint was served by first-class, postage prepaid United States mail in Carlisle, Pennsylvania upon the following: James D. Flower, Jr., Esquire Saidis, Shuff, Flower & Lindsay 26 West High Street Carlisle, Pa 17013 IRWIN, McKNIGHT & HUGHES CONSECO FINANCE CONSUMER DISCOUNT COMPANY, f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, Plaintiff, VS. STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001- 01486 CIVIL TERM PLAINTIFF'S ANSWER TO DEFENDANTS' PRELIMINARY OBJECTIONS SAIDIS SHUFF, FLOWI~R & LINDSAY 26 w. High Street Carlisle, PA AND NOW, comes CONSECO FINANCE CONSUMER DISCOUNT COMPANY f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, Plaintiff herein, by and through its attorneys, SAIDIS, SHUFF, FLOWER & LINDSAY, and makes the following answer to Defendants, STEVEN A. FAILOR and CYNTHIA L. FAILOR'S, preliminary objections: I. Failure to State a Claim Upon Which Relief Can Be Granted 1. Admitted. 2. Admitted. By further answer, Plaintiff's said "wherefore" clause incorporates by reference a particular legal description attached as Exhibit "D" thereto. 3. Denied. After reasonable investigation, Plaintiff lacks sufficient knowledge or information to form a belief as to the truth or falsity of the matters alleged in Paragraph 3. Plaintiff's investigation thus far has revealed the following: (1) the property referenced in the mortgage and Note had, in fact, been sold by the Defendants SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street prior to their execution of the mortgage and Note, as stated in Paragraph 7 of Plaintiff's Complaint; and, (2) the property that Plaintiff contends was intended to be mortgaged was conveyed by Defendants, at least in part, after the filing of this action. Further, there is no response required to the conclusion of law averred by Defendant regarding whether or not particular relief sought can be granted by this Honorable Court, however, if such response were required, Plaintiff responds that ultimate determination of the fact of ownership of the referenced property is not a fact which would, by itself, determine the remedies available to Plaintiff. 4. Denied. This is a conclusion of law to which no response is required, however, if such response were required, Plaintiff incorporates the answer contained in Paragraph 3 above and responds that Defendants have averred by their preliminary objection no cause for Plaintiff's Complaint to be dismissed nor in the alternative, to require Plaintiff to amend its prayer for relief as stated in its Complaint. WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny the Defendant's preliminary objections to Plaintiff's Complaint, and to award other such relief as is appropriate under the circumstances. SAIDIS, SHUFF, FLOWER & LINDSAY Attorneys for the Plaintiff Carlisle, PA 17013 (717) 243-6222 2 ATTORNEY VERIFICATION I, James D. Flower, Jr., Esquire, attorney for Plaintiff verify that the statements made in the foregoing Plaintiffs Answer to Defendant's Preliminary Objections are true and correct and certify that I am authorized to do so. The Plaintiff representative in charge of this case is outside the jurisdiction of the Court and cannot be conveniently obtained. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unswom falsification to authorities. Date: J~'rnes D. Flower, Jr., Esquire/ 2~AIDIS, SHUFF, FLOWER~& LINDSAY v26 West High Street Carlisle, PA 17013 SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Streei Carlisle, PA 3 CONSECO FINANCE CONSUMER DISCOUNT COMPANY, f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001- 01486 CIVIL TERM VS. STEVEN A. FAILOR and CYNTHIA L. FAILOR, Defendants. PRAECIPE TO LIST CASE FOR ARGUMENT SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street TO THE PROTHONOTARY: Please list the within matter for the next Argument Court. 1. Matter to be argued: Defendants' Preliminary Objections. 2. Identification of counsel who will argue case: (a) for Plaintiff: James D. Flower, Jr. SAIDIS, SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 17013 (b) for Defendants: Mark D. Schwartz IRWIN MCNiGHT & HUGHES West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court date: December 12, 2001 SAIDIS, SHUFF, FLOWER & LINDSAY Attorneys for the Plaintiff ~ ~aD.m~c;77~421°wer' Jr' / 26 West High Street Carlisle, PA 17013 (717) 243-6222 CONSECO FINANCE CONSUMER DISCOUNT COMPANY, f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001- 01486 CIVIL TERM VS, CIVIL ACTION - EQUITY STEVEN A. FAILER and CYNTHIA L. FAILER, Defendants. PRAECIPE TO LIST CASE FOR ARGUMENT SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA TO THE PROTHONOTARY: Please list the within matter for the next Argument Court. 1. Matter to be argued: Defendants' Preliminary Objections. 2. Identification of counsel who will argue case: (a) for Plaintiff: James D. Flower, Jr. SAIDIS, SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA 17013 (b) for Defendants: Mark D. Schwartz IRWIN MCNIGHT & HUGHES West Pomfret Professional Building 60 West Pomfret Street Carlisle, PA 17013 I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court date: January 2, 2002 SAIDIS, SHUFF, FLOWER & LINDSAY Attorneys for the Plaintiff By_ 26 West High Street Carlisle, PA 17013 (717) 243-6222 CONSECO FINANCE CONSUMER DISCOUNT COMPANY, f/k/a GREEN TREE CONSUMER DISCOUNT COMPANY, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA STEVEN A. FAILOR AND CYNTHIA L. FAILOR, DEFENDANTS : 01-1486 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY. J. AND GUIDO, J. AND NOW, this ORDER OF COURT 7_-~__:_. day of January, 2002, the preliminary objections of defendants to plaintiff's complaint, ARE DISMISSED. By the Edgar B. Bayley, J. Forrest N. Troutman, II, Esquire For Plaintiff Mark D. Schwartz, Esquire For Defendants :saa 25. Conseco Finance Consumer Discount Company, ffk/a Green Tree Consumer Discount Company V IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Steven A. Failor and Cynthia L. Failor NO. 01-1486 CIVIL TERM ORDER OF COURT AND NOW, December 31, 2001, by agreement of counsel, the above-captioned matter is continued fxom the December 12, 2001 Argument Court list. Counsel is directed to relist the case when ready. ~ames D. Flower, Jr., Esquire For the Plaintiff v~k D. Schwartz, Esquire For the Defendant Court Administrator ld By the Court,