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HomeMy WebLinkAbout01-1586MARK J. UDREN & ASSOCIATES BY= Mark J. Udren, Esquire ATTY I.D. NO. 04302 1040 N. KIN~S HIGHWAY, CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage 3232 Newraark Drive Miamisburg, OH 45342 Plaintiff SUITE 500 Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013 Defendant(s) ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS i CIVIL DIVISION Cumberland County COMPLAINT IN MORTGAGE FORECLOSURE 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, ~O TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN ~ET LEGAL HELP. LAWYERS REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 717-249-3166 or 800-990-9108 Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notlficaclon. Mace falta ascentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se dafiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UNABOGADO IMMEDIATAMENTE, SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 717-249-3166 or 800-990-9108 NOTICE The amount of your debt is as stated in the attached document. The name of the creditor to whom the debt is owed is as named in the attached document. Unless you notify us within 30 days after receipt of this Notice and the attached document that the validity of the stated debt, or any portion of it, is disputed, we will assume that the debt is valid. If you do notify us in writing of a dispute within the 30 day period, we will obtain verification of the debt or a copy of a judgment against you, and marl it to you. If you do not dispute the debt, it is not an admission of liability on your part. Also, upon your written request within the 30 day period, we will provide you with the name and address of the original creditor if different from the current creditor. If you notify us in writing within the 30 day period as stated above, we will cease collection of your debt, or any disputed portion of it, until we obtain the information that is required and mail it to you. Once we have mailed to you the required information, we will then continue the collection of your debt. This law firm is deemed to be a debt collector and this Notice and the attached document is an attempt to collect a debt, and any information obtained will be used for that purpose. LAW OFFICES OF MARK J. UDREN /s/Mark J. Udren, Esquire 1040 N. Kings Highway, Suite 500 Cherry l]ill~ NJ 08034 (856) 482-6900 1. Plaintiff is the Corporation designated as such in the caption on a preceding page. If Plaintiff is an assignee then it is such by virtue of the following recorded assignments: Assignor: Assignments of Record to: N/A Recording Date: ~/A 2. Defendant(s) is the individual designated as such on the caption on a preceding page, whose last known address is as set forth in the caption, and unless designated otherwise, is the real owner(s) and mortgagor(s) of the premises being foreclosed. 3. On or about the date appearing on the Mortgage hereinafter described, at the instance and request of Defendant(s), Plaintiff (or its predecessor, hereinafter called Plaintiff) loaned to the Defendant(s) the sum appearing on said Mortgage, which Mortgage was executed and delivered to Plaintiff as security for the indebtedness. Said Mortgage is incorporated herein by reference in accordance with PA.R.C.P. 1019 The information regarding the Mortgage follows: MORTGAGED PREMISES: 2 Crossroads School being foreclosed is as 36 Watson Drive MUNICIPALITY/TOWNSHIP/BOROUGH: West Pennsboro Township COUNTY: Cumberland DATE EXECUTED: 7/19/99 DATE RECORDED: 7/21/99 BOOK: 1558 PAGE: 482 The legal description of the mortgaged premises is attached hereto and made part hereof. 4. Said Mortgage is in default because the required payments have not been made as set forth below, and by its terms, upon breach and failure to cure said breach after notice, all sums secured by said Mortgage, together with other charges authorized by said Mortgage itemized below, shall be immediately due. fail or 5. After demand, the Defendant(s) continues to refuses to comply with the terms of the Note as follows: (a) by failing or refusing to pay the installments of principal and interest when due in the amounts indicated below; (b) by failing or refusing to pay other charges, if any, indicated below. 3/8/01: The following amounts are due on the said Mortgage as of Principal of debt due and unpaid Interest at 7.875% from 2/1/00 to 3/8/01 (the per diem interest accruing on this debt is $5.52 and that sum should be added each day after 3/8/01) $25,219.86 2,219.04 Title Report 250.00 Court Costs (anticipated, excluding Sheriff's Sale costs) 280.00 Escrow Overdraft/(Balance) (The monthly escrow on this account is $0.00 and that sum should be added on the first of each month after 3/8/01) 0.00 Late Charges (monthly late charge of $0.00 should be added on the fifteenth of each month after 3/8/01) 0.00 Corporate Advance 518.40 Attorneys Fees (anticipated and actual to 5% of principal) 1,260.99 TOTAL $29,748.29 7. The attorney's fee 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. 8. Notice of Intention to Foreclose under Act 6 of 1974 of the Commonwealth of Pennsylvania is not required as the original principal amount exceeds the sum of $50,000.00. The notice specified by the Pennsylvania Homeowner's Emergency Mortgage Assistance Program, Act 91 of 1983, has not been sent because the Mortgage is insured by the Federal Housing Administration ("FHA") and the notice is therefore not required. WHEREFORE, the Plaintiff demands judgment, in rem, against the Defendant(s) herein in the sum of $29,748.29 plus interest, costs and attorneys fees as more fully set forth in the Complaint, and for foreclosure and sale of the Mortgaged premises. Mark~.~Udren, ESQUIRE MARK J. UDREN & ASSOCIATES Attorney for Plaintiff Attorney I.D. No. 04302 ALL that certain tract of land situate in West Pennsbo .m Township, Cumberland County, Pennsylvania, bounded and described in accordance with plans known as Phase I Cross Road School Road Estates prepared by Rodney Lee Decker, R.P.L.S., dated Sanual'y 22, 1993 and' recorded in the Office o/`the Recorder of'Deeds/'or Cumberland County in Plan Book 66, Page 104 and Phase 2, Cross Road School Road Estates prepared by Rodney Lee Decker, R.P.L.S., dated August 2, 1994 and 'k'Corded in the Office of the Recorder of Deeds for Cumberland County In Plan Book 72, Page 60. BEGINNING at a point in northern right-of-way llne of Watson Drive, at corner of Lot No. 3 of Cross Road School Road E,state~; thence sion8 Lot No. 3, North 29 degrees 18 minutes 50 seconds West 335.49 feet to a point; thence along other lands Iiow or Formerly ofK. imba Inc. and Hah'non Oraves, Inc., Noah 60 degrees 41 minutes I0 seconds East 200.00 feet to u point; thence along Lot No. 1, Phase I o(' Cross Road School Road Estates, South 33 degrees 09 minutes ~0 seconds East 308.09 feet to a point in nonhero right.~f, wny llne of Watson Drive, thence along northern tight-of-way line of Watson Drive, South 53 degrees 25 minutes 50 seconds West 222.47 feet to a point: the Place of BgGINNING. CONTAINING I.$$6 acres and designated as Lot No. 2, pan of Phase I and Part of Phase 2 on Plan of Cross Road School Road F. etates. AND BEING part ora certain larger tract of land which Nancy R. Watson, by deed dated December I?, 1986 and recorded in Cumberland County Deed Book '.I", Volume 32, Page 589, granted and conveyed to Kimba, Inc. and Harmon Ontves Company, Orantors herein. VERI F I CAT I O~ Mark J. Udren, Esquire, hereby states that he is the attorney for the Plaintiff, a corporation unless designated otherwise; that he is authorized to take this Verification and does so because of the exigencies regarding this matter, and because Plaintiff must verify much of the information through agents, and because he has personal knowledge of some of the facts averred in the foregoing pleading; and that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief and the source of his information is public records and reports of Plaintiff's agents. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Mark J. MARK J. Udren, ESQUIRE UDREN & ASSOCIATES SHERIFF'S RETURN - NOT POUND CASE NO: 2001-01586 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND NATIONAL CITY MORTGAGE VS GRINDLEY BEVERLY A R. Thomas Kline duly sworn according to law, says, that inquiry for the within named defendant, GRINDLEY BEVERLY A unable to locate Her in his bailiwick. COMPLAINT - MORT FORE NOTICE ,Sheriff or Deputy Sheriff, who being search and he made a diligent DEFENDANT but was He therefore returns the the within named DEFENDANT , DEPENDANT DOES NOT RESIDE AT EITHER ADDRESS STATED, RETURN NOT FOUND AS PER HEATHER ON 3/29/01. NOT FOUND GRINDLEY BEVERLY A , as to Sheriff's Costs: Docketing 18.00 Service 3.10 Not Found Return 5.00 Surcharge 10.00 .00 36.10 So answers: ~ ~ · R. Thomas Kline Sheriff of Cumberland County MARK J. UDREN 03/30/2001 Sworn and subscribed to before me this //~ day of ~/ A.D. Pro~n~not ary MARK J. DDREN & ASSOCIATES BY= Mark J. Udren, Esquire ATTY I.D. NO. 04302 1040 N. KIN~S RI~HWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage 3232 Newmark Drive Miamisburg, OH 45342 Plaintiff Vo Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013 Defendant(s) WE HEREBY CERTIFY THE WITHIN TO BE TRUE AND CORRECT COPY OF THE ORIGINAL : COURT OF CO~ON PLEAS i CIVIL DIVISION : Cumberland County COMPLAINT IN MORTGAGE FORECLOSURE 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 O~CE. IF YOU DO NOT NAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHEP, E YOU CAN GET LEGAL HELP. LAWYERS REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 717-249-3166 or 800-990-9108 TRUE COPY FROM RECORD k~ T~mO~y wt~-~, 1 her~' unto scl my Illflll Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas si~uientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta ascentar una comparencia escrita o en persona o con un abogado y entre~ar a la corte en forma escrlta sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se dafiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UNABOGADO IMMEDIATAMENTE, SI NO TIENEA~OGADO O SI NO TIENE EL DINERO SUFICiENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA ~u~A DIRECCION SE ENCUENT~A ESCRITA. ABAJO PARA A~IGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 717-249-3166 or 800-990-9108 NOTICE The nmount of your debt is as stated in the attached document. The name of the creditor to whom the debt is owed is as named in the attached document. Unless you notify us within 30 days after receipt of this Notice and the attached document that the validity of the stated debt, or any portion of it, is disputed, we will assume that the debt is valid. If you do notify us in writing of a dispute within the 30 day period, we will obtain verification of the debt or a copy of a judgment against you, and mail it to you. If you do not dispute the debt, it is not an admission of liability on your part. Also, upon your written request within the 30 day period, we will provide you with the name and address of the original creditor ff different from the current creditor. If you notify us in writing within the 30 day period as stated above, we will cease collection of your debt, or any disputed portion of it, unffi we obtain the information that is required and mail it to you. Once we have mailed to you the required information, we will then continue the collection of your debt. This law firm is deemed to be a debt collector and this Notice and the attached document is an attempt to collect a debt, and any information obtained will be ~?ed for that purpose. LAW OFFICES OF MARK J. UDREN /s/Mark J. Udren, Esquire 1040 N. Kings Highway, Suite 500 Cherry l~ill; NJ 08034 (8S6) 482-6900 1. Plaintiff is the Corporation designated as such in the caption on a preceding page. If Plaintiff is an assignee then it is such by virtue of the following recorded assignments: Assig/~or: Assignments of Record to: Recording Date: 2. Defendant(s) is the individual designated as such on the caption on a preceding page, whose last known address is as set forth in the caption, and unless designated otherwise, is the real owner(s) and mortgagor(s) of the premises being foreclosed. 3. On or about the date appearing on the Mortgage hereinafter described, at the instance and request of Defendant(s), Plaintiff (or its predecessor, hereinafter called Plaintiff) loaned to the Defendant(s) the sum appearing on said Mortgage, which Mortgage was executed and delivered to Plaintiff as security for the indebtedness. Said Mortgage is incorporated herein by reference in accordance with PA.R.C.P. 1019 The information regarding the Mortgage being foreclosed is as follows: MORTGAGED PREMISES: 2 Crossroads School 36 Watson Drive MUNICIPALITY/TOWNSHIP/BOROUGH: West Pennsboro Township COUNTY: Cumberland DATE EXECUTED: 7/19/99 DATE RECORDED: 7/21/99 BOOK: 1558 PAGE: 482,\ The legal description of the mortgaged premises is attached hereto and made part hereof. 4. Said Mortgage is in default because the required payments have not been made as set forth below, and by its terms, upon breach and failure to cure said breach after notice, all sums secured bysaid Mortgage, together with other charges authorized by said Mortgage itemized below, shall be immediately due. 5. After demand, the Defendant(s) continues to fail or refuses to comply with the terms of the Note as follows: (a) by failing or refusing to pay the installments of principal and interest when due in the amounts indicated below; (b) by failing or refusing to pay other charges, if any, indicated below. The following amounts are due on the said Mortgage as of 3/8/01: Principal of debt due and unpaid Interest at 7.875% from 2/1/00 to 3/8/01 (the per diem interest accruing on this debt is $5.52 and that sum should be added each day after 3/8/0~) $25,219.86 2,219.04 Title Report 250.00 Court Costs (anticipated, excluding Sheriff's Sale costs) 280.00 Escrow Overdraft/(Balance) (The monthly escrow on this account is $0.00 and that sum should be added on the first of each month after 3/8/01) 0.00 Late Charges (monthly late charge of $0.00 should be added on the fifteenth of each month after 3/8/01) Corporate Advance 0.00 518.40 Attorneys Fees (anticipated and actual to 5% of principal) TOTAL 1,260.99 $29,748.29 7. The attorney's fee 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. 8. Notice of Intention to Foreclose under Act 6 of 1974 of the Commonwealth of Pennsylvania is not required as the original principal amount exceeds the sum of $50,000.00. The notice specified by the Pennsylvania Homeowner's Emergency Mortgage Assistance Program, Act 91 of 1983, has not been sent because the Mortgage is insured by the Federal Housing Administration ("FHA") and the notice is therefore not required. WHEREFORE, the Plaintiff demands judgment, in rem, against the Defendant(s) herein in the sum of $29,748.29 plus interest, costs and attorneys fees as more fully set forth in the Complaint, and for foreclosure and sale of the Mortgaged premises. Mark dren, ESQUIRE MARK J. UDREN & ASSOCIATES Attorney for Plaintiff Attorney I.D. No. 04302 ALL that certain tract of land situate in West Pannsbo .re Township, Cumberland County, Pennsylvania, bounded and daserlbed in accordance with plan~ Imown as Phase I Cross Road $~hool Road Estates prepa.,~'d by Rodney Le~ Decker, R.P.L.$., dat~i January 22, 1993 and' r~orded in the Olllce of the Recorder of Deeds for Cumberland County in Plan Book 66, ?age 104 and Phase 2, Cwas Re.nd gehool Rend Esletes prapered by Rodney Lee Decker, R.P.LS, dated AUgust 2' 1~94 and ~'e¢orded in th~ Office of the Recorder of Deeds for Cumberland County In Plan Book 72, Page 60. BEGINNING at a point in northern right-of-way llne of'Watson Drive, at comer of Lot No. 3 of Crees Road School Road ~tates: thence along Lot No. 3, North 29 degrees 18 minutes 50 s~unds West 335.49 feet to n point; thence along other lands ilow or formerly of Kimbn Inc. and Hanaon Graves, Inc., North 60 degrees 41 minutes l0 seconds East 200.00 feet to a point; thanoo along Lot No. 1, Phasa I of Cross Road -%heel Road Estates, South 33 degrees 09 ntlnutes 50 seconds E,~t 308.09 feet to a point in northern fight-of-way llne of Watson Drive, thence along northern right-of-way line of Watson Drive, South ~3 de,tara 25 minutes 50 secon~ West 222.47 feet to a point: the Place of BEGINNING. CONTAINING 1.556 aer~ and designated as Lot No. 2. p~rt of Pbese I end Pn~t of Phase 2 on Plnn of Cross Road School Road Estates. AND BEING pm of a certain larger h'net of land which Nancy 1l. Watson, by deed dated December 17, 1986 and recerd~d in Cumberland County Deed Book 'J", Vol~une 32, Page 589, gnmted and conveyed to Kimbn, Inc. and Harmon Graves Company, (]ranto~ heroin. VERIFICATION Mark J. Udren, Esquire, hereby states that he is the attorney for the Plaintiff, a corporation unless designated otherwise; that he is authorized to take this Verification and does so because of the exigencies regarding this matter, and because Plaintiff must verify much of the information through agents, and because he has personal knowledge of some of the facts averred in the foregoing pleading; and that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief and the source of his reports of Plaintiff's agents. this statement herein is made Pa.C.S. Section 4904 relating authorities. information is public records and The undersigned understands that subject to the penalties of 18 to unsworn falsification to Mark J. Udren, ESQUIRE MARK J. UDRE~, & ASSOCIATES MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. KINGS HIGH'vVAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage Plaintiff Vo Beverly A. Grindley Defendant(s) ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DIVISION i Cumberland County .- .- ~ NO. 01-1586 Civil Term MOTION FOR SPECIAL SERVICE PURSUANT TO SPECIAL ORDER OF COURT Plaintiff, by its counsel, Mark J. Udren, Esquire, moves this Honorable Court for an Order directing service of the Complaint in Mortgage Foreclosure upon Defendant(s), Beverly A. Grindley by regular mail and certified mail and in support thereof avers the following: 1. Process was unable to be served at the then last known address of said Defendant(s) at P.O. Box 1394, Carlisle, PA 17013. Process cannot be served at P.O. Box addresses and is invalid service. 2. Process was also unable to be served at 2 Crossroads School, 36 Watson Drive, Carlisle, PA 17013, which is the mortgaged premises. A copy of the Return of Service is attached hereto as Exhibit A. 3. Pursuant to Pa.R.C.P. 430, Plaintiff made a Good Faith Investigation, the report thereof being attached hereto as Exhibit B. 4. Said investigation was unable to determine an alternate address for said Defendant(s). 5. The last known address of Defendant(s) is as set forth in the attached Exhibits. WHEREFORE, Plaimiff prays and respectfully requests that this Honorable Court enter an Order pursuant to Pa.R.C.P. 430 directing service of the Complaint in Mortgage Foreclosure by regular mail and certified mail upon said Defendant(s), Beverly A. Grindley. MARK $. UDREN & ASSOCIATES Mark J. Udren, Esquire Attorney for Plaintiff MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage Plaintiff Beverly A. Grindley Defendant(s) ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CML DIVISION i Cumberland County .- .- ~ NO. 01-1586 Civil Term Pennsylvania Rule of Civil Procedure 430(a) specifically provides: (a) If service cannot be made under the applicable rule the plaintiff may move the court for a special order directing the method of service. The motion shall be accompanied by an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the defendant and the reasons why service cannot be made. NOTE: A sheriff's return of "not found" or the fact that a defendant has moved without leaving a new forwarding address is insufficient evidence of concealment. Gonzales ys. Pxzlis, 238 Pa. Super. 362, 357 A.2d 580 (1976). Notice of intended adoption mailed to last known address requires a "good faith effort" to discover the correct address. Adoption of 3~kex, 468 Pa. 165,360 A2d 603 (1976). An illustration of a good faith effort to locate the defendant includes (1) inquiries of postal authorities including inquiries pursuant to the Freedom of Information Act, 39 C.F.R. Part 265, (2) inquiries of relatives, neighbors, friends and employers of the defendant and (3) examinations of local telephone directories, voter registration records, local tax records, and motor vehicle records. As set forth in the Return of Service marked Exhibit A, the Sheriff and/or Process Server has been unable to serve the Complaint in Mortgage Foreclosure. A good faith effort to discover the whereabouts of the Defendant(s)has been made as evidenced by the attached Affidavit of Good Faith Investigation marked Exhibit B. WHEREFORE, Plaintiff prays and respectfully requests service of the Complaint in Mortgage Foreclosure upon Defendant(s) by regular mail and certified mail. MARK J. UDREN & ASSOCIATES Mark J. Udren, Esquire Attorney for Plaintiff SHERIFF'S RETURN - NOT FOUND CASE NO: 2001-01586 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND NATIONAL CITY MORTGAGE VS GRINDLEY BEVERLY A R. Thomas Kline duly sworn according to law, inquiry for the within named defendant, GRINDLEY BEVERLY A unable to locate }{er in his bailiwick. COMPLAINT - MORT FORE , NOT I CE the Within named DEFENDANT ,Sheriff or Deputy Sheriff, who being says, that he made a diligent search and DEFENDANT but was He therefore returns the , NOT FOUND , as to , GRINDLEY BEVERLY A DEFENDANT DOES NOT RESIDE AT EITHER ADDRESS STATED, RETURN NOT FOUND AS PER HEATHER ON 3/29/01. Sheriff's Costs: Docketing ~ 18.00 Service 3.10 Not Found Return 5.00 Surcharge 10.00 .00 36.10 R. Thomas Kline Sheriff of Cumberland County MARK J. UDREN 03/30/2001 Sworn and subscribed to before me this day of A.D. Prothonotary PLAYERS NATIONAL LOCATER AFFIDAVIT OF GOOD FAITH INVESTIGATION Loan Number: 0124313 Attorney Firm: MARK J UDREN & ASSOCIATES Case NumbS?: Subject BEVERLY A GRINDLEY A K A., BEVERLY A GRIFFITH, BEVERLY GRINSLEY, BEVERLY A MOORE Pm~erty Address: 2 CROSSROADS SCHOOL CARLISLE, PA 17013 Last Known Address 1394 P.O. BOX CARLISLE, PA 110i3 Last Know~ Number' ( ! Michael K Gross. being duly sworn according to law, deposes and says 1 I am employed in the capacit7 of President for Players National 2. On 04/16/2001, I conducted an investigation into the whereabouts of the above named defendant(s) The results of my investigation are as follows: CREDIT INFORMATION - A SOCIAL SECURITY NUMBER: t73-.~4-8802 B EMPLOYMENT SEARCH: Unable to locate a good employer for Beverly. C INQUIRY OF CREDITORS The cmditom Indicated that Beverly is using PO Box 1394, CaHlele, Pa. t7013 with no valid home phone number. We were unable to cofl~ll'm a physical address, INQUIRY OF TELEPHONE COMPANY - A. DIRECTORY ASSISTANCE SEARCH The directory assistance has no listing for Beverly Grlndley. INQUIRY O1= NEIGHBORS - NIA INQUIRY OF POST OFFICE - A NATIONAL ADDRESS UPDATE: As of April 10. 2001 the National Change of Address (NCOA) has no change for Beverly from last known address. MOTOR VEHICLE REGISTRATION - A. MOTOR VEHICLE & DMV OFFICE: The Pennsylvania DepeH~nent of Drivers Licensing has Beverly II, ted at last known address. OTHER INQUIRIES - A. DEATH RECORDS: As of April 10, 2001 the Social Security Administration has no death record on file for Beverly A Grlndley and or a.k.a.'e under her social security number. Zll-d 61/01'd 6~F-L 66~00EZ9~$ L~'HIBrT'~ N01L¥130SSY $~XYld-=OJd =d0F:10 10-gL-JdV B. PUBLIC LICENSES ( PILOT. REAL ESTATE. ETC. ): None Found C. COUNTY VOTER REGISTRATION The County Voters Registration Office has no listing. ADDITIONAL INFORMATION ON SUBJECT - A. DATE OF BIRTH: 07160 AFFIAN~T 7ael K Gross Sub d and s to before e on 04/1 001 ' I - / Player~ National locator 113 Old State Road. Suite 104 St. Lou s. MO 63021 ~ Phone: (636) 230-9922 Fax: (636) 230-0558 Kristine M. Scott. Notary Pubhc I: St. Louis County. State Gl Missour~ ~ ~,..,. EXHIBIT g zii-J Sl/ll'd 6t?-.g 89900~9~9 NOI£Vl3OSSY S~9.&V'ld-mOJ=l mdO~:[O 1[3-Bt-Jd¥ VERIFICATION Mark J. Udren, Esquire, hereby states that he is the Attorney for the Plaintiff in this action, that he is authorized to take this Verification, and that the statements made in the foregoing MOTION FOR SPECIAL SERVICE PURSUANT TO SPECIAL ORDER OF COURT are true and correct to the best of his knowledge, information and belief. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa.C.S. Sec 4904 relating to unsworn falsification to authorities. MARK J. UDREN & ASSOCIATES Date: ~ren, Esquire Attorney for Plaintiff MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage Plaintiff Beverly A. Grindley Defendant(s) ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DIVISION i Cumberland County . .- ' NO. 01-1586 Civil Term CaF. BTIEICATF.~Q~R~ I, Mark J. Udren, Esquire hereby certify that I have served true and correct copies of the attached Motion For Special Service upon the following person(s) named herein at their last known address or their attorney of record by: X Regular First Class Mail Certified Mail Other Date Served: TO: Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013 MARK J. UDREN & ASSOCIATES Attorney for Plaintiff MARK J. UDREN* STUART WINNEG** GA YL SPIVAK ORLOFF*** HEIDI R. SPIVAK*** CHRISTOPHER J. POX*** CORINA M. CANIZ*** TINA MARIE RICH LA W OFFICES MARK J. UDREN & ASSOCIATES 1040 NORTH KINGS HIGHWAY SUITE 500 CHERRY HILL, NEW JERSEY 08054 856. 482. 6900 FAX: 856. 482. 1199 FREDDIK~ ~IA D2~SIGNATED COUNSEL "PLEASE RESPOND TO NEW JERSEy OFFICE" P_J~3~].gYL~ANIA OFf~.C~ 24 NORTH MERION AVENUE SUII'E 240 BRYN MA Wit, PA 19010 215-568-9500 215-568-11~1 FAX April iq , 2001 Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013 Re: National City Mortgage VS. Beverly A. Grindley Cumberland County C.C.P. No. 01-1586 Civil Term Dear Beverly A. Grindley: In connection with the above captioned matter, enclosed you will find a copy of the Motion for Alternate Service which was sent for filing on April Iq, 2001. THIS IS AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. Should you have any questions, please contact our office. SSOCIATES ]cnlw Enclosures MARK J. UDREN & ASSOCIATES BY: Mark J. Udren, Esquire ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage 3232 Newmark Drive Miamisburg, OH 45342 Plaintiff Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013 De f endant ( s ) ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION Cumberland County iNO. 01-1586 Civil Term PRA~CIPE TO REINSTATE COMDT.&INT TO THE PROTHONOTARY: Kindly reinstate the Complaint on the above-captioned matter. DATE: April 30, 2001 MARK J~ASSOCIATES Mark J. Udren, ESQUIRE ATTOP~NEY FOR PLAINTIFF MARK J. UDHEN & ASSOCIATES BY: Mark J. Udren, Esquire ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage 3232 Newmark Drive' Miamisburg, OH 45342 Plaintiff Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013 Defendant(s) ATTORREY FOR PLAINTIFF COURT OF COMMON pT, CIVIL DIVISION Cumberland County NO. : COMPLAINT IN MORTGAGE FORECLOSURE 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 PA~EH TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, ~O TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYERS REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 717-249-3166 or 800-990-9108 MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage Plaintiff Beverly A. Grindley Defendant(s) ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DIVISION ~ Cumberland County z .- ' NO. 01-1586 Civil Term ORDER AND NOW, this ,~.~0~day of ~ta.~ ,20~),, upon consideration of Plaintiff's Motion and the Affidavit of Good Faith investigation attached hereto, it is hereby ORDERED that service of the Complaint in Mortgage Foreclosure and all subsequent pleadings on Defendant(s), Beverly A. Grindley, shall be complete when Plaintiff or its counsel or agent has marled tree and correct copies of the Complaint in Mortgage Foreclosure and all subsequent pleadings by certified mail and regular mail to the last known address of Defendant(s), Beverly A. Grindley at P.O. Box 1394, Carlisle, PA 17013 and by posting the mortgaged premises at 2 Crossroads School, 36 Watson Drive, Carlisle, PA 17013. BY THE COURT: SHERIFF'S RETURN - REGULAR CASE NO: 2001-01586 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLJ~ND NATIONAL CITY MORTGAGE VS GRINDLEY BEVERLY A DAVID MCKINNEY , Cumberland County, Pennsylvania, says, the within ORDER OF COURT, was served upon GRINDLEY BEVERLY A DEFENDANT , at 0016:28 HOURS, on the llth day of May at 36 WATSON DRIVE CARLISLE, PA 17013 by handing to POSTED PROPERTY AT ABOVE ADDRESS a true and attested copy of ORDER OF COURT, REINSTATED NOTICE & COMPLAINT IN MORTGAGE FORECLOSURE and at the same time directing Her attention to the contents Sheriff or Deputy Sheriff of who being duly sworn according to law, the , 2001 together with thereof. Sheriff's Costs: Docketing 18.00 Service 4.96 POSTING 6.00 Surcharge 10.00 .00 38.96 Sworn and Subscribed to before me this j~ -- day of ~ ~l A.D. ! ' Prothonotary So Answers: R. Thomas Kline 05/I4/2001 MARK J. UDREN & ASSOCIATES Deputy Sheriff NATIONAL CITY MORTGAGE, Plaintiff V. BEVERLY A. GRINDLEY. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW No. 01-1586 CIVIL JURY TRIAL DEMANDED DEFENDANT, BEVERLY A. GRINDLEY'S, ANSWER TO PLAINTIFFS' COMPLAINT AND NOW COMES, Defendant, Beverly A. Grindley, by and through her attorney, Peter J. Russo, and avers the following: 2. 3. 4. Admitted. Admitted. Admitted. Denied. It is specifically denied that mortgage is in default. Defendant paid all statements as she received them from Plaintiff. 5. Denied. Defendant did not receive any demands. The demands were not sent to her mailing address. Defendant has not failed or refused to pay amounts due. Defendant has attempted to pay what is due, but her checks were returned by Plaintiff or Plaintiff's attorneys. 6. Denied. It is specifically denied that Defendant is in breach, therefore costs do not apply. 7. Denied. Defendant has insufficient knowledge to determine the truth or falsity of the averments in Paragraph 7. 8. Denied. The averments contained in Paragraph 8 are conclusions of law to which no answer is required. WHEREFORE, Defendant, Beverly A. Grindley, respectfully requests judgment against Plaintiff, National City Mortgage. Date: Respectfully submitted, Peter J. Russo Pa. Supreme Court # 72897 NATIONAL CITY MORTGAGE, : Plaintiff : , V. .' : BEVERLY A. GRINDLEY. : Defendant : : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW No. 01-1586 CIVIL JURY TRIAL DEMANDED VERIFICATION I, Beverly A. Grindley, verify that the statements made in the forgoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. $. § 4904 relating to unsworn falsification to authorities. Dated: ~Y'~..'~(") } c>~.c~. \ BeverlyA~. dley NATIONAL CITY MORTGAGE, : Plaintiff : : V. : : BEVERLY A. GRINDLEY. : Defendant : .. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW No, 01-'1586 CIVIL JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter J. Russo, hereby certify that I am on this day serving a copy of the DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT upon the person(s) and in the manner indicated below, service by First-Class Mail, Postage Prepaid, and Addressed as Follows: Mark J. Udren, Esquire Mark J. Udren & Associates 1040 North King's Highway, Suite 500 Cherry Hill, NJ 08034 'Peter J. Russo 5010 East Trindle Road Suite 200 Mechanicsburg, PA 17050 (717) 591-1755 Date: Wednesday, May 30, 2001 PRAECIPE FOR LISTING CASE FOR ARGUMENT (MUSt be typewritten and sukmnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pl-~e l i.~t the wit2~in matter far t~e next CAPTION OF CASE (ent~ cap~n ~u~t be stated in Dnl) NATIONAL CITY MORTGAGE %Ps. ( p Iaj ntiff ) BEVERLY A. GRINDLEY ( Defen4~nt ) No. 1586 Civ/~ ,2001 1. State matter to be ar~3ued (i.e., plaintiff's n~tion for new ~ia3, 0efendanc's de~/f~'=r to c~.~]~nt, etc. ): Defendant's Motion for Summary Judgment 2. Identif}y counsel ~w~ll argue case: (a) for plaintiff: Address: (b) for deferment: Acklr~ss: I will no?{+y ail been Listed for Mark J. Udren 1040 North King's Highway Suite 500 Cherry Hill, NJ 08034 Peter Jo Russo 5010 East Trindle Road Suite 200 Mechanicsburg, PA 17050 in wr~tJ_ngwitb_%ntw~dz~ t_hat this Case has 4. Argument Court Dare: October 24, 2001 MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. KINGS HIGHWVAY, SUITE 500 CHERRY NII.L, NJ 08034 856-482-6900 National City Mortgage Plaintiff Beverly A. Grindley Defendant(s) A~rORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION Cumberland County NO. 01-1586 Civil Term ORDER AND NOW, this ~ day of ~ , 2061 , upon consideration of Plaintiff's Motion and the Affidavit of Good Faith investigation attached hereto, it is hereby ORDERED that service of the Complaint in Mortgage Foreclosure and all subsequent pleadings on Defendant(s), Beverly A. Gfindley, shall be complete when Plaintiff or its counsel or agent has mailed true and correct copies of the Complaint in Mortgage Foreclosure and all subsequent pleadings by certified mail and regular mail to the last known address of Defendant(s), Beverly A. Grindley at P.O. Box 1394, Carlisle, PA 17013 and by posting the mortgaged premises at 2 Crossroads School, 36 Watson Drive, Carlisle, PA 17013. :"Id S8 Lld~' PETER J. RUSSO, ESQUIRE 5010 East Trindle Road, Suite 200 Mechanicsburg, PA 17050 (717) 591-1755 NATIONAL CITY MORTGAGE,: Plaintiff : V. BEVERLY A GRINDLEY, Defendant Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1586 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND NOW, COMES Defendant, Beverly A. Grindley, by and through her attorney, Peter J. Russo, and moves for summary judgment pursuant to Pa. R.C.P. 1035. In support thereof, Defendant avers the following: 1. Plaintiff, National City Mortgage, commenced suit on or about March 19, 2001 by filing a Complaint in Mortgage Foreclosure alleging that Defendant failed to make the required payments on her mortgage loan. 2. Defendant, Beverly A. Grindley, filed an Answer on June 4, 2001. 3. In the Foreclosure action, the Plaintiff alleges that Ms. Grindley is in default of the mortgage agreement for failure to make the required monthly payments of $168.68 on the mortgage loan during the months of February and March of 2001. 4. The Plaintiff further alleges that Ms. Grindley failed to cure said default upon notice. 5. Ms. Grindley made payments to National City Mortgage during these months. 6. Not only did Ms. Grindley make the required interest payments, she made these interest only payments early and also made principal payments as indicated by the following checks: a) # 558 1/20/2001 $200.00 b) # 583 2/22/2001 $16000 c) # 590 3/20/2001 $170.00 d) # 595 4/5/2001 $200.00 e) # 599 4/23/2001 $300.00 f) # 641 6/27/2001 $816.20 A true and correct copy of these checks is attached hereto as Exhibit A. 7. A monthly statement from National City dated 1/12/01, with a payment due date of 2/01/2001 contains the note, "You do not owe anything this month you have a credit of $-219.97." A true and correct copy of this statement is attached hereto as Exhibit B. 8. The 2000 Mortgage Interest Statement from National City to Ms. Gfindley shows that the payment that was due for the February, 2001 payment was posted to her mortgage account on December 28, 2000. A true and correct copy of this statement is attached hereto as Exhibit C. 9. The March statement from National City indicates that Ms. CJrindley's mortgage account is current. A true and correct copy of this statement is attached hereto as Exhibit D. National City's own records show that Ms. Grindley was not in default as their Complaint 10. claims. 11. It is believed, therefore averred that National City accepted Ms. Grindley's $200.00 payment dated January 20, 2001. This payment would have been credited as the March, 2001 payment, because the last payment made was credited as the February, 2001 payment. See Exhibit C. 12. It is believed, therefore averred that National City cashed Ms. Grindley's $160.00 check number 583 dated February 22, 2001. 13. A check from National City was then sent back to Ms. Grindley in the same amount by Patrice Carter of the Law Offices of Mark J. Udren, along with a letter stating that the account had been referred to their office for foreclosure and only full reinstatement or payoff would be accepted. 14. It is believed, therefore averred that National City cashed Ms. Grindley's next check dated March 20, 2001 in the amount of $170.00, indicating acceptance of the payment. 15. The two checks Ms. Grindley sent to National City in April were returned by Connie Pratt from the Law Offices of Mark J. Udren. 16. On June 27, 2001, Ms. Grindley sent check number 641 in the amount of $816.20 to National City. See Exhibit A. 17. Check number 641 was never returned to Ms. Grindley. However, it was also not cashed, despite the fact that it was payable in the entire amount due as indicated on her statement from National City. 18. Because Ms. Grindley was never in default on her mortgage loan, a claim for mortgage foreclosure is not supported by the facts. 19. There is no question of material fact relating to any issues in this case. 20. Pursuant to Pa. R.C.P. 1035, Defendant, Beverly A. Crrindley, is entitled to summary judgment. WHEREFORE, it is respectfully requested that this Honorable Court grant Defendant, Beverly A. Grindley' s, Motion for Summary Judgment, with prejudice. Defendant also seeks the payment of Attorney's fees and court costs. Respectfully submitted, Peter J. Russo DO NOT USE FOR REORDERING OTHER NOT NEGOI~BLE ~' 1/r~ ~1 / rd~ic[] kl°~01~l ~ ~1¢1 r~ Tra~l~"~ E:] ~edlt C4~.I ~/~E~I"~ & T~ FoRDO N~,REORDERiNGUSE FOR'D BAL. '~ ': [3 9i.V".', NOT NEGOTIABLE DO NOT USE FOR REORDERING 590 / [:~.ga~/Raat r~T~a~l~p~lt~ E~Ent~tsinmem&Tmv~ DO NOT USE NOT NEGO ' Y *z 1Yack Your Expenle~.. T^X DEDUCTIBLE ;TEM Ilk [] , [~Mortgage/R~t []TFar~p<~I~O~I r~Er~etlainr~ol&Travel D,O NOT USE .~.. ....... , ~ ~ ~OE'D~ ../ / ~ ' ....... ~' :':' ; ' ' : .... :':' :~ "BT NEG~XBLE Memo /-::/ ! ? / ,~/ ~/Tr~cl(Your Experllel. T^x DEDUC~mL~ ,~E~ ~ ~  ~o~a~/Re~ ~T~ ~&Tm~ ,DO NOT U~E ~,, ~.-~ / , , /, x',: / ,,' ,.?.,~ ~,s ~;b/ "(~'":',~ ,.-~- : ' ~. ~. :'" . ........ ~.. BLE j T4331-3CL 099-001 90 NATIONAL CITY MORTGAGE CO CONSTRUCTION LOAN STATEMENT STREET ADDRESS: 3232 Newmark Drive · Miamisburg, Ohio 4534~ Tetephone (937) 910- 1200 MAILING ADDRESS: P.O. Sox 1820 . Dayton, Ohio 45401-1820 01/12/01 PAGE 1 BEVERLY A GRINDLEY PO BOX 1394 CARLISLE PA 17013-6394 LOAN NO./TYP~ 9544493 COMMITMENT A~T 117,792.00 UNDISBURSED AMT 90,242.00 MATURITY DATE 12/01/00 DATE PAYMENT DUE 02/01/01 DATE LATE CHARGE DUE 02/16/01 01 STREET%/DIR/ST NAME CITY/STATE ZIP CODE PROPERTY: 2 CROSSROADS SCHOOL RD CARLISLE ~ PA 17013 .............. TRANSACTION ............... INTEREST PRINCIPAL INTEREST DATE DESCRIPTION AMOUNT RATE% BALANCE DUE 01/01/01 BEGIN. BALANCES: ~25,219.86 .00 01/31/01 INTEREST 31 DAYS 7.87500 w 168.68 CURRENT BALANCES: CURRENT PERIOD INTEREST: 168.68 25,219.86 168.68 AMOUNT DUE 02/01/01: AMOUNT DUE AFTER 02/16/01: PRINCIPAL .00 .00 INTEREST 168.68 168.68 LATE CHARGE .00 6.75 ESCROW/MISC .00 .00 TOTAL 168.68 *** 175.43 *** AGED AMOUNTS DUE: CURRENT 30 DAYS 168.68 .00 - tq 60 DAYS 90/OVER .00 -00 Mortgage NATIONAL CITY MORTGAGE P.O. BOX 1820 DAYTON, OH 45401-1820 WWW. NATIONALCITYMORTGAGE.COM 2000 MORTGAGE INTEREST STATEMENT I.,lll,.lll..,,ll,,Ih,lh,,,Ihhl.,h,lhh,,h,l.lhl BEVERLY A GRINDLEY PLEASE REMEMBER TO FILE FOR HOMESTEAD EXEMPTION WITH YOUR TAXING AUTHORITY IF YOU ARE ELIGIBLE. TRANSACTION HI~TORY f~l~ ?II20 PAYJI~NT 12~ ' 1~;7~ ~.t9 DESCRIPTION AMOUNT RATE% BALANCE DU~ ~BEGIN. BALANCES: 25,219.86 .00 INTEREST 28 DAYS 7.87500 152.36 152.36 ~RENT BALANCES: ,~RENT PERIOD INTEREST: 25,219.86 152.36 AMOUNT DUE 03/01/01: AMOUNT DUE AFTER 03/16/01: PRINCIPAL .00 .00 INTEREST 152.36 152.36 LATE CHARGE .00 6.09 ESCROW/MISC .00 .00 TOTAL 152.36 *** 158.45 *** AGED AMOUNTS DUE: CURRENT 30 DAYS 60 DAYS 90/OVER 152.36 .00 .00 .00 NATIONAL CITY MORTGAGE, Plaintiff BEVERLY A. GRINDLEY, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW No. 01-1586 CIVIL JURY TRIAL DEMANDED VERIFICATION I, Beverly A Grindtey, veri£y that the statements made in the forgoing document are true and correct. I understand that false statements herein are made subject to the penalties o£ 18 Pa. C S. § 4904 relating to unsworn falsification to authorities. Beverly A. Qj~indley / PETER J. RUSSO, ESQUIRE PA Supreme Court I.D. 72897 Suite 200 5010 E. Trindle Road Mechanicsburg, PA 17050 (717) 591-1755 ATTORNEY FOR DEFENDANT NATIONAL CITY MORTGAGE,: Plaintiff V. : : BEVERLY A GRINDLEY, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1586 CIVIL CIVIL ACTION - LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Peter J. Russo, Esquire, hereby certify that on this day, I am serving a tree and correct copy of the foregoing document on the person(s) listed below in the manner listed below: Via First Class Mail, Postage Pre-Paid, and addressed as follows: Date: Mark J. Udren, Esquire Mark J. Udren & Associates 1040 North Kings Highway Suite 500 Cherry Hill, NJ 08034 Peter J. Russo PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate.) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) NATIONAL CITY MORTGAGE Plaintiff VS. BEVERLY A. GRINDLEY Defendant No. 1586 Civil - 2001 1. State matter to be argued (i.e., Plaintiff's motion for new trial, defendant's demurrer to Complaint, etc.): Defendant's Motion for Summary Judgment. 2. Identify counsel who will argue case: (a) for plaintiff: Address: Mark J. Udren 1040 North King's Highway Suite 500 Cherry Hill, NJ 08034 (b) for defendant: Address: Peter J. Russo 5010 E. Trindle Road Suite 200 Mechanicsburg, PA 17050 3. 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 Date Attorney for Plaintiff NATIONAL CITY MORTGAGE,: Plaintiff : V. BEVERLY A. GRINDLEY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-1586 CIVIL TERM 1N RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT BEFORE HOFFER, P.J. and OLER, J. ORDER OF COURT AND NOW, this 17th day of December, 2001, after careful consideration of Defendant's Motion for Summary Judgment, and of Plaintiff's Motion for Leave To Amend Complaint, Defendant's Motion for Summary Judgment is denied and Plaintiff's Motion for Leave To Amend Complaint is granted. BY THE COURT, Mark J. Udren, Esq. 1040 North Kings Highway Suite 500 Cherry Hill, NJ 08034 Attorney for Plaintiff Peter J. Russo, Esq. 5010 East Trindle Road Suite 200 Mechanicsburg, PA 17050 Attorney for Defendant :rc MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTORNEY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage Plaintiff ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DIVISION i Cumberland County .- Beverly A. Grindley i NO. 01-1586 Civil Term Defendant : PI,AINTIFF'S RF, PLY~T_O DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 1. Admitted With Qualification. The allegation is admitted however, as a result of Defendant's failure to comply with the terms of the Mortgage, inter alia, that construction of Defendant's residence "shall be complete on or before November 10, 1999", and because, to date, Defendant's residence is not complete ("non-monetary default"), pursuant to the terms of the Mortgage, there is a monetary default as a result of the non-monetary default. Said monetary default is that as a result of Defendant's non-monetary default, Plaintiff accelerated the Mortgage and the total debt is now due on the Mortgage, which debt Defendant has not paid. A true and correct copy of the Mortgage is attached hereto as Exhibit "A". 2. Admitted. 3. Admitted. Plaintiff incorporates herein by reference its Reply to paragraph 1 hereinabove as though fully set forth at length. 4. Admitted. Plaintiff incorporates herein by reference its Reply to paragraph 1 hereinabove as though fully set forth at length. 5. Admitted. Plaintiff incorporates herein by reference its Reply to paragraph 1 hereinabove as though fully set forth at length. Furthermore, per the terms of the Mortgage, Plaintiff had the option to continue accepting monthly payments, despite the non-monetary default, and did not waive its right to acceleration by accepting the monthly payments. 6. Admitted. Plaintiff incorporates herein by reference its Reply to paragraph 1 hereinabove as though fully set forth at length. Furthermore, per the terms of the Mortgage, Plaintiff had the option to continue accepting monthly payments, despite the non-monetary default, and did not waive its right to acceleration by accepting the monthly payments. 7. Admitted In Part; Denied In Part. Plaintiff incorporates herein by reference its Reply to paragraph 1 hereinabove as though fully set forth at length. Furthermore, per the terms of the Mortgage, Plaintiff had the option to continue accepting monthly payments, despite the non-monetary default, and did not waive its right to acceleration by accepting the monthly payments. This averment is also denied as it refers to a written document, which writing speaks for itself. 8. Admitted In Part; Denied In Part. Plaintiff incorporates herein by reference its Reply to paragraph 1 hereinabove as though fully set forth at length. Furthermore, per the terms of the Mortgage, Plaintiff had the option to continue accepting monthly payments, despite the non-monetary default, and did not waive its right to acceleration by accepting the monthly payments. This averment is also denied as it refers to a written document, which writing speaks for itself. 9. Admitted In Part; Denied In Part. Plaintiff incorporates herein by reference its Reply to paragraph one hereinabove as though fully set forth at length. Furthermore, per the terms of the Mortgage, Plaintiff had the option to continue accepting monthly payments, despite the non-monetary default, and did not waive its right to acceleration by accepting the monthly payments. This averment is also denied as it refers to a written document, which writing speaks for itself. 10. Denied. This averment is denied as a conclusion of law to which no response is required thereto. By way of further Reply, as set forth more particularly in paragraph 1 hereinabove, Defendant is both in monetary default and non-monetary default of the Mortgage. 11. Denied. This averment is denied as a conclusion of law to which no response is required thereto. By way of further Reply, as set forth more particularly in paragraph 1 hereinabove, Defendant is both in monetary default and non-monetary default of the Mortgage. 12. Denied. This averment is denied as a conclusion of law to which no response is required thereto. By way of further Reply, as set forth more particularly in paragraph 1 hereinabove, Defendant is both in monetary default and non-monetary default of the Mortgage. 13. Admitted. Plaintiff incorporates herein by reference its Reply to paragraph 5 hereinabove as though fully set forth at length. Furthermore, because the loan has been accelerated as a result of Defendant's non-monetary breach, Plaintiff will not accept, and does not have to accept, payments less than the accelerated total debt due. 14. Denied. This averment is denied as a conclusion of law to which no response is required thereto. By way of further Reply, as set forth more particularly in paragraph 1 hereinabove, Defendant is both in monetary default and non-monetary default of the Mortgage. 15. Admitted. Plaintiff incorporates herein by reference its Reply to paragraph 5 hereinabove as though fully set forth at length. Furthermore, because the loan has been accelerated as a result of Defendant's non-monetary breach, Plaintiff will not accept, and does not have to accept, payments less than the accelerated total debt due. 16. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth or falsity of the within averment. 17. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth or falsity of the within averment. Furthermore, because the loan has been accelerated as a result of Defendant's non-monetary breach, Plaintiff will not accept, and does not have to accept, payments less than the accelerated total debt due. 18. Denied. As set forth with specificity hereinabove, Ms. Grindley is in both monetary default and non-monetary default of her mortgage loan. If deemed necessary, Plaintiff will seek leave of Court to amend its Complaint to set forth with particularity its non-monetary default claim. 19. Denied. As a result of Defendant's non-monetary, and monetary default of the Mortgage, genuine issues of material fact do exist and therefore, summary judgment is not warranted, at all; and therefore, Defendant's Motion should be denied, in its entirety. 20. Denied. For all the reasons hereinabove set forth, and to be set forth in Plaintiff's Brief, Defendant is not entitled to summary judgment. WI-IEREFORE, Plaintiff prays and respectfully requests that this Honorable Court deny Defendant's Motion For Summary Judgment as there are several genuine issues of material fact which preclude summary judgment. ~~ Respectfully submitted, ~ ~/dark T. Udr~t~Esquire Attorney for Plaintiff National City Mortgage VERIFICATION Mark J. Udren, Esquire, hereby states that he is the attorney for the Plaintiff, in this action, that he is authorized to take this Verification, and that statements made in the foregoing Reply To Defendant's Motion For Summary Judgment are true and correct to the best of his knowledge information and belief. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unswom falsification to authorities. Dated: MARK J. UDREN & ASSOCIATES Attorney for Plaintiff ~ Numbs:. CUt4BERI~NO COUHT¥-PA MORTGAGE THIS MORTGAGE ('Scotty Imtrumcat") is given The Moflgagoe i~ ,.TuXy 3.9, 2.999 00095444~3 443.-60337S9/?03- ("Borrower~. 'f'nL~ Secmity Instrument is given m which is or~m~z~d and ~xJst~ng under lhc hws of *~ne S~a~.e o~t Ohio ("Lcndm'"). Borrower OWeS Lead~- th~ pr~.~pal sum of Dollars (U.S. $ 3.3.7~"~92.00 ). Tlds debt is critic, aced by Borrower's nora datcd d~ umc dm~ as this Security lnsUvMeat ("Nol~"), ptovidc~ for moadtly payments, with the full dcbl. If not paid carlicr, du~ and payabl~ 2o2~ . This SGcurity ln~mmtont secures to Lendec (a) tim repayment of the debt ~vidqmccd by d~ Note, with in,rest, and all rcncwals, extensions and modifications of the Nme; (b) tho payment of all odJer sum3, wi~h intcrcst, advanced under Mwagraph 7 to protect the security of ~ts Secm4ty In,mumcm; and (c) the. pcrfmmancc (~-4~ R(PA) ,482 Borrower's covenants and agreements nndc~ this Security lnsmzmcnt amd thc Ho~. For this pmpo~ Bonowet does hczcby me, gage. grant and convey m thc L~et tho following described property located in Cumb er'X&ud County, Pennsylvania: wh~cll has thc addrc~ of LO~ 2 CROSSROADS St:HOOt, RD, C~tl.'rST.,S BORRO~ CO~NA~ ~t B~ h hwfuHy ~ of ~ ~ ~Y ~v~ ~ Bo~wof ~ ~d wifl ~ ~ly ~ ~de ~ ~e ~o~y ag~t ~1 c~ ~d ~ds. ~bj~t m ~y ~mb~ of ~. B~ ~ ~ ~t ~d ~ u fol~w~ 1. ~t of ~elpal. Inter and ~te C~rge. ~w~ ~I ~y whm duc ~ p~n~ oL ~d ~t L Mont~y ~ym~t of ~ l~u~n~ and Oth~ Cbarg~ B~ow~ ~ ~cl~e ~ ~ m~ly m~ wt~ ~ ~ ~ ~ u ~t fo~ ~ ~ Nora ~d ~y ~m ~g~ a ~ f~ (~ p~l~s for ~ ~u~ un~ ~8~ 4. la ~y y~ la whkh ~ ~d~ m~ pay a pr~um m ~ S~ of ~ ~d Ut~ ~vd~m~t ~S~ ). otm ~y ~ wh~ ~ p~ium ~m f~ ~e ~ m~ge ~ ~um m ~ ~ by ~d~ m ~ S~. ~ 0O a mon~ly ~ by ~ ~t~. ~t for ~e molly ~a~c by ~e ~. ~ i~s ~ ~ '~w I~' ~ ~ ~d ~ ~d~ ~ ~ "~w F~." ~ m~nt ~ may ~ ~ f~ B~w~'s ~mw ~nt ~ ~ R~ germ S~t ~ ACt 1974. 12 U.S.~ S~on ~I ef ~. ~ ~p~g ~u~o~. ~ C~ P~ 35~. ~ ~y my ~ ~d~ f~ ~e to ~ ('~PA'). ~ ~ ~ ~h~n or ~c ~it~ by ~PA for ~ d~u ~ ~o BO~'S ~y~ ~ a~lc ~ ~ ~t my n~ ~ ~ m ~n~ duc for mo~e ~ p~ium. If ~C stmounts held by Lender/'or Escrow Items ~-.~d_ ~ ~ ~oaa~ ~l~ ~t ~ Bo~w~ f~ ~ ~ fun~ ~ ~u~ by ~PA. If ~c ~o~ of f~ ~d by ~d~ ~c ~w F~ ~ p~g~ u ~i~ s~ for ~1 s~ ~ by ~is ~l ~t i~ ~, ~). ~d (c) ~d ~y ~e ~ ~i~ in~t D. Av~at~n of Paymen~ All peru ~d~ ~hs I ~ ~ s~l ~ a~l~ by ~ ~ fol~ S~ ~ of ~e ~n~ly ~gn~ ~c ~lum; ~ m h~ du~ ~ ~e No~ ~,~ ~ of ~c~ of~cNo~ ~d · ~, ~ nnd Other H~rd l~nc~ Bo~ shall ln~ gl ~m~m~ on ~c ~. w~ in ~c ~t of I~ ~w~ sh~l ~ ~cr im~ ~ by m~. ~ ~Y ~s p~f of I~ If not ~ p~y by B~w~. ~ ~ comfy ~ is h~y ~ ~ ~ ~ ~ ~t for ~d ~ S~ l~t ~ ~ ~ m ~e ~ l~y ~ ~ ~. ~1 ~h~ ~ ~d ~t of no~ in ~ ~ ~ ~1~ S. Oc~n~. ~o~ Mn~l~nn~ and ~n of the ~y; ~ ~ ~u~ ~o.~ ~ ~'~ ~ ~t~ for st ~ ~ y~ ~ ~o ~ of ~, ~ ~ d~ ~ ~uk~t will ~ ~ h~ip for B~w~, or ~ whkh ~ ~y~ B~'s mn~L B~ ~ n~fy ~ of ~ ~n~g ~ ~w~ r~blc w~ ~ ~ ~. ~ may ~t ~ ~ if ~ ~ Borrower shell elso b~ in def:~uzt if Borrower, durin* ~e 1o~ ~n ~, bf~on or m~ ~ ~d~ (or f~l~ ~ pmvi~ ~ wi~ ~y ~ ~o~) m ~ ~c~ by ~ ~o~ ~cludln~, but not ~i~ ~, f~ ~ Bo~wer's ~y ~ a MI~p~ ~M~. If ~ S~ty l~m~t ~ on a ~old, B~w~ ~i~n~ ~d ~ ~ ~ ~ ~d~ m ~ ~t of ~ full ~t of ~ ~ pr~t of ~. ~y a~l~on of ~ pr~ m ~e ~cJ~ ~t not 7. ChI~ to B~ and ~ot~u of ~d~'s R~hu k the ~lj~s On ~ d~y ~ ~O mdty wh~ 5 ow~ ~c pa~t. If f~ ~f~ ~'s r~h~ ~ ~ ~y (~ ~ a p~eg ~ ~y. for ~m~ ~ ~ ~fo~ ~ or Any ~oun~ d~ by ~d~ ~ ~ ~m~ ~ll ~ ~u~ b~ ~ls S~ I~L ~ ~n~ ~J ~ ~ from ~ ~ ~ ~g m ~e ~t of ~ obtain ~ b~ ~ Hen ~ a ~ a H~ wh~ may ~n pd~y o~ ~ ~ty Ins~m~t, ~nd~ may g~ve 9. ~u~ for A~l~n of ~or m or on ~ d~ ~ of ~ ~t ~ly ~ym~t, or (b) ~lt Withal Cr~ App~vaL ~ s~ If ~i~ by ~1~1~ ~6 S~, r~u~ im~ ~t ~ full of ~l su~ ~ W o 1558. '1485 (~) AIl or pz~t o[ ~ ~. or z Ixa~t~d ~ltC~(~. h I mm owning ~q or ~ of ~o Pro~zty. b zo~ o~ (c) No Waive. If c~u~ ~c~ ~ ~5 ~t ~ ~ ~u~ tm~ pa~t ~ fu~, but S~. (e) ~orto~e Not l~red. ~wer ~ ~ ff ~is S~ l~t ~ ~e No~ s~t or ~y ~ ~t of ~o ~ ~ ~umt ~ ~ d~s from ~ o~ Bo~wcr's f~l~ ~ ~ ~ ~nt duc ~ ~ No~ m ~ ~ I~L ~ · ~ ~ty Inmmmt, f~ ~sB ~d ~ab~ ~d ~ ~' f~ ~ ~ ~ly ob]J~fio~ ~ it ~ ~1 ~ JB eff~t ~ if ~d~ h~ not ~ im~ ~ym~t ~ fall. Howard, ~ ~ not r~uk~ ~ ~it ~nt if: (~ ~d~ ~ ~ ~t ~ ~ com~t of p~g. (i~ ~insm~t will ~c f~e ~ differ ~un~ ~ ~ fum~ ~ (iff) ~u~t wi~ Mvmdy ~t ~e p~ty of~ ~ ~ by ~ ~ty 11. B~row~ Not Rt~l Fore.nee By ~nd~ Not a W~ver. ~xm~ion of ~e time of ~ym~t ~t~ of ~w~ sh~ not ~ ~ ro~ ~ ~abifiW of ~ ~al B~ow~ or B~w~'s ~ by ~o ~g~ Bo~w~ or B~'s s~ in ~u. Any f~ by ~ ~ ~y s~l ~t ~ a w~v~ of ~ ~ludc ~ eg~ of ~y fight ~ r~y. 12. Succ~ and ~ B~nd~ J~m and ~ral ~sbalty; C~SI~ ~ ~v~ ~o~s of ~ ~). Boffo~'s coypu ~d a~mu ~l ~ ~z ~d ~g. ~y B~ who c~g~ ~ S~ [~t ~t do~ not ~ ~o No~ (a) is ~ing ~s ~ ~t ~ly not ~y ~li~ m ~y ~ mw~ ~ by ~h S~ l~n~ ~d (~) ~r~ ~ l~t ~ ~ N~ wi~out ~t B~w~'s ,486 / ' 13. Notices. Any noli~ to Borrows- pro.~l, for in tl~ Secuttt./lnstmn~nt shall be given by dellvegn~ It or by mailing it by ~st class mall unless applieabl~ law requires use of ano~ter method. Tbe notic~ shall t~ direcu~d to the Prop~.y Add.-,~.~ or any oth~ 3d dxe,~ Bon~wer dcsignat~ by noti~ to Lmlder. Any notlc~ to Lander shall be given by first class mail to Lenders addr~s s~a*'d herein or any addz~s Lender dasi$,~ates by notice to Bo.ewer. ,a~y notion provided for la this S~-'mtty lns~umant shall be do~med to haw been F, lven to Bon'~ver or Lender wt~n given as provided tn this pasa~reph. 14. ~overulng Law; S~erabiltty. Tnls SeondW lnsmmtont ~hnl! be g~vomed by Felkral law and the law of the Jurisdiction in which ~ Properly is ~ In the event that any prov~sion or claus~ of this Sacmity lns~rumant or the Nato ~onfli;ts with applicabl~ law, such enntlJ~t shall not nff~--t o~her provisions of ~ Sanusity In.s~m~n t or th~ No*" whi¢~ can ~ ~iven effect wi0~ont tho contlir~g provision. To Otis end th~ laovisinns of lids -qcc~ity Inslmmant and 15. Borenw~"s Copy. Ilon'owe~ ~ be given on~ conformed ~opy of t~ Note and of this Security Insffument, I~. Hazardous gubetnnc~, nm'rower shall not can.~ or permit II~ pr~enec, u~, di~, storase, or rel~e of ~ny 1~,-'*4ons gobmn~as on or in tho Property. Rorrower skall not do, nor glow anyone elac to do, any~ing sffectlnie ti~ Propc~ that is In violation of any l~witonm~tsl l.~w. Tim preceding two acntene~ shall not ap~ly to ~ pre.non, use. or storaS~ on the. Property of small qu3ntldos of' ~r.-*~tous Substsnec.s that mn 8chorally recognized to be appropriate to normnl residential uses and to malntenanec of the Property. Bogeyer shall l~ompdy ~ Lender wilton notiec of any inveatltmtlon, claim, dea~nd, lawsuit or other action by any 8over. mental or xe4ulatot',/, asency or iwtva~ l~nY' invotvins ~ Propm~ and an~,, Ha~nrdons Snbston~ or ~nvironmen*'l Law of which !~ has actual knowicd8~. If Bo~ower icaroa, or is nml~'~l by any ~ov~nmentol or ~eSulato~ an0~xl~, that any mnov~l or other ~d~tion of any Haznxdous $ub~mces affecting th~ Pmp~'y is nacasser'/, Borrower stroll pt~nptly ~ all ~e_'-v,/remedial ecgons In ~.ordancr. whl~ Environmental Law. As used In this .paragraph 16, "N~'--lou~ lubstances' axe tbes~ sub~enees deEncd as toxic or haanrdooS substances by l~nvinsnmantal Law and tho following sub~anecs: §aeclin~, k~recenc, oLt~r llammablo et' toxic j:~'trolcum prodvcts, toxic pesticides and hc~Slcldas, volagin sobtonts, materials ennudnins asbnsms or formaldehyde, and rndlenctivn ~ As n~d In this paragraph 16. 'r~rwttonmen~ Law* me~s fcder'dl laws Ired lows of the Jurisdiclion where the, Propc~y is Ioent~ that rela~ to heaidl, asfeP/or envimnmerttal protection. NON-UN~)RM COVENAlq'I~. Boffower and Lender fm~er enve~t and ~ as follows: 1'/. Aaslgnment of Rents. Bo.ewer tmeondidonally aasi~ns and transfm's to Lander nil the ~.nts and rmvenn~s of 'the Property. Borrower authog~e.s I..~do~ or l.,e~er'S ~ems to enllact tho rents and revenuas and hereby dh'eels each "te~ent of the Pmpe~.y to pay the tents to Loner or Lendm"s -,gan*-. Hownvor, p~ior to Lender'S notiec m Borrow~ of Borrower's bleach of any covenant or ag~.~Jaant In ~I~ Se. onrit./In,sffument. Bon. ow~ ~all collect and re~eivn ali · -and revenuer of the P~perty ~ ~ for g~e benollt of Lender and Bm~rower. This assignment of ~Ots constitutes an · nb~olum assignment and not an a~tgnment loc n~lllioenl securlt~ only. If Lender giw..s noti~ of breach to Borrower: (10 all rents ~ by l~ottower ~ be bold by Bellower as ~ fe~ ben. Ill of Lender only, to be applied to tho sums Secured bl~ the Sanurh~ Inen'ument; Co) I.~nder shall ~ntitled to collect and tacetve all of the tm~ts of the Propmy~ and (¢) each *e~-t of th~ Prol~r~ shall pay all rents du~ anti unpaid to Londe~ or I.~nder's aSent on L~nder's wrico demand to the tonenc Borrower I~s not executed any prior asslgnmant of tl~ tents and ~ not an~l will not perform any ~t that would ptovant Lend~ from ~e~tng its rights on~icl' Ods paragraph 17. Lender s~ll not be required to ente~ upon, tak~ con~'ol of or maintain tbe Property before or af~' givIng nmic~ of bteac, h to Bm'rower. However, Lender or a ~dicially appointed t~i~er may do so at any time ~ is a b~r.h, Any nppllcatlon of' rents shall not cm~ or waive, any default or invalidat~ any other right or remedy of L~nder. This n~ssi~nmcat of ren~ o£ the Property shall terminate when the d~bt ~c~urcd by the Sacu~tt). Instrument is paid in ,, 00 1558 .487 18. Fortctosure Procedure. If feuder requkes Imme4btte in pu~hE ~e Rmd~ p~vM~ la thb pa~iph rrb evMen~. ~ ~ Ir the ~d~'s bt~ h ~ ~fl~ lM~mut b bald b~ thc ~ nd ~e S~ta~ r~u~ imm~bte pa~ut h ;uU u~ Pau~pb P, ~e S~ ma~ b~ke ~e ~.d~ p~ ~ hie provld~ in the SinRb Fmi~ M~p F~* ror~b~ ~mm~bu~ ~t~ u~ p~vM~ h ~ ~c~ N~hhi h ~e pr~ 24. RMers to this Security lnstrumeUt. If oo~ or more fide~ are e~ccu2d by l~0~owc~ and recorded ~ofob')er d~is Security Insu'ument. the covenants of each suc~ rldcr shall b~ ~:orpomted into and shall omend end supplcment tf~ covenants and ng~eement~ of d~b Securi~ lnsU'ument as if the rtde~s) wc~e a ~ of rids -qe~ity J!nsu,_~Rnem. [Check epplienblo box(et)]. Condominium Rider ~] Growing Equity Ridc~ E~ O~e~ [specify] CO'eT l~muted Unit Devdopment RiderL~J Gr~do~*~a Pf~aen~ Rider -(s~) (Se~) (Se~) Certiflcnte of Residence Wimc~ my hand thi,~j, ne~emn, t:h day of .3u3.¥ . do hereby ceflify that the correct address 0 f ~)'ODI BZS~'R, LO.%N CLOSER Cotmly .: ~R(PA) P~).01 , before mo, t~ undcni~ne~ officer. known to me (or saOsfactofily provofl) to bo sub.ri'bed ~o th~ wlthb instrumcm and a,cknowledgcd t~at ALL that certain tract of land situate in West Pannsbo.ro Township, Cumberland County, Pennsylvania, bounded and described in accordance with plans known as Phase I Cross Road School Road Estates prepared by Rodney Lee Decker, R.P.L.$., dated Janua~ 22, 1993 and' recorded in the Office of the Recorder of Deeds for Cumberland County il~ Plan Book 66, Page I04 arid Phase 2, Cross Road School Road Estates prepared by Rodnoy Lee Decker, R,P,L.$., d~ted August 2, 1994 and recorded in the Office el' the Recorder of Deeds t'or Cumberland County in Plan Book 72, Page 60. BEGINNING at a point in northern right-of-way line of WaL.,'on Drive, at corner of Lot No. 3 of Cross Road School Road Estates; thence along Lot No. 3, North 29 de.~,rees 18 minutes 50 seconds West 335.49 Feet to n point; thence along other lands now or formerly of K. imba Inn. and Harmon Graves, Inn.. North 60 degrees al minutes 10 seconds East 200.00 feet to a point; thence along Lot No. I, Phase I of Cross Road gcbool Road Estates, South 33 degxees 09 minutes 50 seconds East 308.09 feet to a point in northern right-of-way line of Wataon Drive, thence along notlhem right-of-way llne of Watson Drive, South $3 degrees 25 minutes 50 seconds West 222.4'/feet to a point; the Place of BEGINNING. CONTAINING 1.556 acres and designated as Lot No. 2. pa~ of Phase l and Pm of Phase 2 on Plan of Cross Road School Road ~tates. AND BF..lNG part nra certain larger trent of land which Nancy R. Watson, by deed dated December 1'7, 1986 and recorded in Cumberland County Deed Book "J", Volume 32. Page 589, granted and eonvsyed to Kimba, Inc. and Harmon Graves Company, Grantors herein. CONSTRUCTION/PERMANENT RIDER THIS CONSTRUCTION/PERMANENT RIDER iS mede this [)tit day of ~].7 ,1999 , end la Incorlporated into end shall be deemed ~o amend end supplement the Mortgage, Dead of Trust or geeurity Deed (the "Security Instrument') of the sa~d~te given by the undersigned {the (Property Address In©luding County) ADDITIONAL COVENANTS= In addition to the covenants end agreements made In the geourity Instrument and Note, Borrower and Lander further covenant and agree es follows: 3. Constru~lon of the reeidenne set out above shell be completed on or before 't]./10/1999 , · If construction Is not oompleted on that date, upon request of Lender, Borrower agrees to execute a modification agreement in form and substance satisfactory to Lender. 5. Borrower agrees that the p~oeed$ of the 1oas evidonaed by the Note will be disbursed pursuant 6. gormwer agrees that this Construoflon/Petmanen! Rider will be null and void upon completion of the construation of the Improvements and/or the beginning of the amortization of principal os set forth in the Note end in any event at the time the loan is sold in Whole or In part to Federal National Mortgages Association, Government National Mortgage Association, Federal Home Loan Mortgage Co(l~oratlort or any other purchaser which so requires. NCM Form t13e 4/96 By ~IGNING BELOW, Borrower accepts and .grees to the terms ahcl ;ovenants contained In this (Seal) MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTORNEY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856482-6900 National City Mortgage Plaintiff Beverly A. Grindley Defendant ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DIVISION i Cumberland County .- NO. 01-1586 Civil Term C ERTI~ICATEOFc3ERYICE I, Mark J. Udren, Esquire, hereby certify that I served a tree and correct copy of Plaintiff's Reply To Defendant's Motion For Summary Judgment upon the following person(s) named herein at their last known address or their attorney of record. xxx Regular First Class Mail Certified Mail Other (certificate of mailing) Date Served: October 31, 2001 TO: Peter J. Russo, Esquire 5010 East Trindle Road, Suite 200 Mechanicsburg, PA 17050 Attorney for Defendant MARK J. UDR SSOCIAT.E$ ........ intiff 0124313.rep MARK J. UDREN & ASSOCIATES BY: Mark J. Udren, Esc/uire ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage 3232 Newmark Drive Miamisburg, OH 45342 Plaintiff Vo Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013 Defendant(s) ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION Cumberland County iN0.01-1586 MOTION FOR LEAVE TO AMEND COMPLAINT PURSUANT TO Pa.R.C.P. 1033 Movant is Plaintiff, National City Mortgage. Respondent is Defendant, Beverly A. Grindly. On or around, March 19, 2001, Movant commenced this action in mortgage foreclosure against Respondent with respect to the premises commonly known as 2 Crossroads School, 36 Watson Drive in West Pennsboro Township, Cumberland County, Pennsylvania. A true and correct copy of the Complaint is attached as Exhibit "A." 4. On or around April 23, 2001, Plaintiffmotioned this Court to be permitted to serve Defendant alternately, that is, by post at her post office box number. 5. Said motion was granted by this Court's Order dated April 25, 2001. 6. Accordingly, the Complaint was reinstated on May 7, 2001 and on May 11, 2001, Defendant was served in accordance with the order. Verification of said service was filed on May 16, 2001. 7. On or around May 30, 2001, Respondent filed an Answer to Plaintiff's Complaint, denying breach of the mortgage agreement claiming monthly payments were tendered. A tree and correct copy of Defendant, Beverly A. Grindley's, Answer to Plaintiff's Complaint is attached as Exhibit "B." 8. Thereafter, Defendant filed Motion for Summary Judgment alleging that there was no default in making, or at least tendering, payments. 5. The original Complaint appropriately requested the accelerated amount due under the Mortgage, but did not properly specify the nature of the default which was a non-monetary default. 6. Permitting the Plaintiff to amend the Complaint will not prejudice either party or delay the trial of this matter.. 7. A true and correct copy of the proposed Amended Complaint is attached hereto as Exhibit WHEREFORE, National City Mortgage respectfully requests that this Court enter an Order permitting National City Mortgage to amend it Complaint. RESPECTFULLY SUBMITTED, MA~K~~& ASSOCIATES M~rk J. Udren Esquire ATTORNEYS FOR PLAINTIFF · MA~K J. UDREN& ASSOCIATES BY: Mark J. Udren, Esquire ATTY I.D. NO. 04302 1040 N. KINQS BIQHWAY, SUITE 500 [~H~.Ry BILL, NJ 08034 856-482-6900 National City Mortgage 3232 Newmark Drive Miamisburg, OH 45342 Plaintiff ATTORNEY FOR PLAINTIFF COURT OF CO~ON PLEAS ~CIVIL DIVISION Cumberland'county Beverly A. Grindley P.O~ BOX 1394 Carlisle, PA 17013 Defendant(s) COMPLAINT IN MORTGAGE FORECLOSURE 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. YOUSBOULD TAF~E THIS pAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAvE A LAWYER OR CANNOT AFFORD ONB, ~O TO OR TELEPHONE THE OFFICE SBT FORTB BELOW TO FIND OUT WHERE YOU CAN GET ~E~AL HELP. LAWYERS REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 717-249-3166 or 800-990-9108 Le hah demandado a usted en la c0rte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notification. Hate falta ascentar una comparencia escrita o en persona o con un abogado y entre~ar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se dafiende, la corte tomara medidas y puede continu&r la demanda en contra suya sin previ0 aviso o notificacion. Ademas, la torte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. C-mberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 717-249=3166 or 800,990-9108 NOTICE The mount of your debt is as stated in the attached document. The name of the creditor to whom the debt is owed is as ]ha]ned in the attached document. Unless you notify us within 30 days after receipt of thi~ Notice and the attached document that the validity of the stated debt, or any portion of it, is disputed, we will ass-me that the debt is valid. If you do notify us in writing of a dispute within the 30 day period, we will obtain verification of the debt or a copy of a judgment against yon, and mail it to you. If you do not dispute the debt, it is not an admission of liability on your part. Also, upon your written request within the 30 day period, we will provide you with the name and address of the original creditor if different from the current creditor. If you notify us in writing within the 30 day period as stated above, we will cease collection of your debt, or any disputed portion of it, until we obtain the information that is required and mail it-to you. Once we have mailed to you the required information, we will then continue the collection of your debt. This law firm is deemed to be a debt collector and this Notice and the attached document is an attempt to collect a debt, and any information obtained will be xl. sed for that purpose. LAW OFFICES OF MARK J. UDREN /s/Mark J. Udren, Esquire 1040 N. Kings Highway, Suite 500 Cherry l:lill: NJ 08034 (S56) 482=6900 1. Plaintiff is the Corporation designated as such in the caption on a preceding page. If Plaintiff is an assignee then it is such by virtue of t-he following recorded assignments: Assignor: N/A Assignments of Record to: N/A Recording Date: N/A 2. Defendant(s) is the individual designated as such on the caption on a preceding page, whose last known address is as set forth in the caption, and unless designated otherwise, is the real owner(s) and mortgagor(s) of the_premises being foreclosed. ~3. On or about the date appearing on the Mortgage hereinafter described, at the instance and request of Defendant(s), Plaintiff (or its predecessor, hereinafter called Plaintiff) loaned to the Defendant(s) the sum appearing on said Mortgage, which Mortgage was executed and delivered to Plaintiff as security for the indebtedness. Said Mortgage is incorporated herein by reference in accordance with PA.R.C.P. 1019 (g). The information regarding the Mortgage being foreclosed is as follows: MORTGAGED pREMISES: 2 Crossroads School 36 Watson Drive MUNICIPALITY/TOWNSHIP/BOROUGH: West Pennsboro Township COUNTY: Cumberland DATE EXEcuTED:' 7/19/99 DATE RECORDED: 7/21/99 BOOK: 1558 PAGE:'48~\ The legal description of the mortgaged premises is attached hereto and made part hereof. 4. Said Mortgage iS in default because the required payments have not beenlmade as set forth below, and by its terms, upon breach and failure .to cure said breach after notice, all sums secured by said Mortgage, together with other charges~authorizedby. said Mortgage itemized below, shall be immediately due. 5. After demand, the Defendant (s) continues to fail or refuses to comply with the terms of the Note as follows: (a) by failing or refusing to pay the installments of principal and interest when due in the amounts indicated (b) below; by failing or refusing to pay other charges, if any, indicated below. .6. The following amoUnts are due on the said Mortgage as of 3/8/Ol-. Principal of debt due and unpaid Interest at 7.875% from 2/1/00 to 3/8/01 (the per diem interest accruing on thi~ debt is $5.52 and that sum should be added each day after 3/8/01) $25,219.86 2,219.04 Title Report Court Costs (anticipated, Sheriff's Sale costs) excluding 250.00 280.00 Escrow Overdraft/(Balance) (The monthly escrow on this account is $0.00 and that sum should be added on the first of each month after 3/8/01) 0.00 Late Charges (monthly late charge of $0.00 should be added on the fifteenth of each month after 3/8/01) Corporate Advance 0.00 518.40 Attorneys Fees (anticipated and actual to 5% of principal) 1,260.99 TOTAL '$29,748.29 The attorney's fee 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. 8. Notice of Intention to Foreclose under Act 6 of 1974 of the Commonwealth of Pennsylvania is not required as the original principal amount exceeds the sum of $50,000.00. The notice specified by the Pennsylvania Homeowner's Emergency Mortgage Assistance Program, Act 91 of 1983, has not been sent because the Mortgage is insured by the Federal Housing Administration ("FHA") and the notice is therefore not required. WHEREFORE, the Plaintiff demands judgment, in rem, against the Defendant(s) herein in the sum of $29,748.29 plus interest, costs and attorneys fees as more fully set forth in the Complaint, and for foreclosure and sale of the Mortgaged premises. Mark/J.~Udren, ESQUIRE MARK J. UDREN &ASSOCIATES Attorney for Plaintiff Attorney I.D. No. 04302 AL~ II1~ cmai~ ~'~! or lind situate In P~I~ b~ ~d d~b~ in ~ ~ pl~ ~o~ u P~e I C~es ~oed ~ in ~e O~ce of~e ~M~ ofD~s ~ ~b~lnd ~un~ ~n Pin B~k 66~ P~ I~ ~d Ph~ ~ ~s R~ School R~ ~ta~ pm~ by ~odney ~ D~k~, ~.~S., ~t~ A~t 2, I~ md '~ In the Offi~ of.~e ~ of D~ ~r C~l~d Co~ M PI~ ~k 7~ P~e 60. BEGINNING at e point in northern right-of-way llne oFWalson Drive, at comer of Lot No. 3 of Croes Road School Road ~tntss: theoae along Lot No. 3, No~h 2!~ degrees 18 minutes 50 seconds West 335.49 feet to a point; thence along other lands now or formerly of Klmba leo. nmi Hmmon Or~ves, I~.. Noah 60 degrees 41 minutes 10 seconds East 200,00 feet io a point,; thence along Lot No.' 1. Phmc I of Cross Road School Road Es~tes, South 33 d~eee 09 minutes $0 s~onds-Famt 308,0~ Feet to a point In nonhero ri~nt.of, wny line of Wmon Drive, thence along no.hem d.#~l-of-wn), IIn~ of Watson Drive, South 53 de,tees 2~ minutes 50 s~onds West 222.47 feet to · poInt: the Place of BEGINNING. CONTAINING 1,556 a~res and designated ns Lot No. 2. pm~ of Phase I nad Pert of Phase 2 on Plan of Cross Road School Road Est~,tes. AND BEING pert ora certain larger tract of land which Nancy R. Watson, by deed dated December 17, 4986 and reoorded in Cumberland County Deed Book 'J", Volume 32. Page.$g9, granted and conveyed to ICimba, Inc. and Harmon Oravss Company, Grantors heroin. VERIFICATION Mark J. Udren, Esquire, hereby states that he is the attorney for the Plaintiff, a corporation unless designated otherwise; that he is authorized to take this Verification and does so because of the exigencies regarding this matter, and because Plaintiff must verify much of the information through agents, and because he has personal knowledge of some of the facts averred in the foregoing pleading; and that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief and the source of his information is public records and reports of Plaintiff's agents. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authoriti%s. Mark J. MARK J. Udren, ESQUIRE UDR~..~ &ASSOCIATES NATIONAL CITY MORTGAGE, : Plaintiff : : V. ,' : BEVERLY A. GRINDLEY. : Defendant : : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION-LAW No. 01-1586 CIVIL JURY TRIAL DEMANDED DEFENDANT. BEVERLY A. GRINDLEY'S. ANSWER TO PLAINTIFFS' COMPLAINT AND NOW COMES, Defendant, Beverly A. Grindley, by and through her attorney, Peter J. Russo, and avers the following: 2. 3. 4. Admitted. _ Admitted. Admitted. Denied. It is specifically denied that mortgage is in default. Defendant paid all statements as she received them from Plaintiff. 5. ' Denied. Defendant did not receive any demands. The demands were not sent to her mailing address. Defendant has not failed or refused to pay amounts due. Defendant has attempted to pay what is due, but her checks were returned by Plaintiff or Plaintiff's attorneys. 6. Denied. It is specifically denied that Defendant is in breach, therefore costs do not apply. 7. Denied. Defendant has insufficient knowledge to determine the truth or falsity of the averments in Paragraph 7. 8. Denied. The averments contained in Paragraph 8 are conclusions of law to which no answer is required. WHEREFORE, Defendant, Beverly A. Grindley, respectfully requests judgment against Plaintiff, National City Mortgage. ResPectfully submitted, Peter J. Russo Pa. Supreme Court # 72897 Date: '~' 1 ~ O O I NATIONAL CITY MORTGAGE, : Plaintiff : : V. ,. BEVERLY A. GRINDLEY. : Defendant : : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW No. 01-1586 CIVIL JURYTRIALDEMANDED VERIFICATION I, Beverly A. Grindley, vedfy that the statements made in the forgoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. § 4904 relating to unsworn falsification to authorities. NATIONAL CITY MORTGAGE, : Plaintiff : .. V. : .. BEVERLY A. GRINDLEY. : Defendant : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW No. 0'1-1586 CIVIL JURY TRIAL DEMANDED CERTIFICATE OF I, Peter J. Russo, hereby certify that I am on this day serving a copy of the DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT upon the person(s) and in the manner indicated below, service by First-Class Mail, PoStage Prepaid, and Addressed as Follows: Mark J. Udren, Esquire Mark J. Udren & Associates 1040 North King's Highway, Suite 500 Cherry Hill, NJ 08034 'Peter J. Russo 5010 East Trindle Road Suite 200 Mechanicsburg, PA 17050 (717) 591-1755 Date: Wednesdav. May 30. 2001 MARK J. IYDREN & ASSOCIATES BY: Mark J. Udren, Esquire ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage 3232 Newmark Drive Miamisburg, OH 45342 Plaintiff Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013 Defendant(s) ATTORNEY FOR PLAINTIFF :COURT OF COMMON PLEAS i CIVIL DIVISION : :Cumberland County iNO.01-1586 AMENDED COMPLAINT IN MORTGAGE FORECLOSURE 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. LAWYERS REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 717-249-3166 or 800-990-9108 Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuesta$ en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta ascentar una comparencia escrita o en persona o con un abogado y entre~ar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se dafiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE, SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 717-249-3166 or 800-990-9108 NOTICE The amount of your debt is as stated in the attached document. The name of the creditor to whom the debt is owed is as named in the attached document. Unless you notify us within 30 days after receipt of this Notice and the attached document that the validity of the stated debt, or any portion of it, is disputed, we wffi assume that the debt is valid. If you do notify us in writing of a dispute within the 30 day period, we will obtain verification of the debt or a copy of a judgment aga'mst you, and marl it to you. If you do not dispute the debt, it is not an admission of liability on your part. Also, upon your written request within the 30 day period, we will provide you with the name and address of the original creditor if different from the current creditor. If you notify us in writing within the 30 day period as stated above, we will cease collection of your debt, or any disputed portion of it, until we obtain the information that is required and mail it to you. Once we have mailed to you the required information, we will then continue the collection of your debt. This law firm is deemed to be a debt collector and this Notice and the attached document is an attempt to collect a debt, and any information obtained will be used for that purpose. LAW OFFICES OF MARK J. UDREN /s/Mark J. Udren, Esquire 1040 N. Kings Highway, Suite 500 Cherry Hill, NJ 08034 (856) 482-6900 1. Plaintiff is the Corporation designated as such in the caption on a preceding page. If Plaintiff is an assignee then it is such by virtue of the following recorded assignments: Assignor: Assignments of Record to: N/A Recording Date: ~/A 2. Defendant(s) is the individual designated as such on the caption on a preceding page, whose last know~ address is as set forth in the caption, and unless designated otherwise, is the real owner(s) and mortgagor(s) of the premises being foreclosed. 3. On or about the date appearing on the Mortgage hereinafter described, at the instance and request of Defendant(s), Plaintiff (or its predecessor, hereinafter called Plaintiff) loaned to the Defendant(s) the sum appearing on said Mortgage, which Mortgage was executed and delivered to Plaintiff as security for the indebtedness. Said Mortgage is incorporated herein by reference in accordance with PA.R.C.P. 1019 The information regarding the Mortgage being foreclosed is as follows: MORTGAGED PREMISES: 2 Crossroads School 36 Watson Drive MUNICIPALITY/TOWNSHIP/BOROUGH: West Pennsboro Township COUNTY: Cumberland DATE EXECUTED: 7/19/99 DATE RECORDED: 7/21/99 BOOK: 1558 PAGE: 482 The legal description of the mortgaged premises is attached hereto and made part hereof. 4. Said mortgage is in default because of failure to comply with the Construction/Permanent Rider which mandates that contruction of the residence "shall be completed on or before 11/10/99." 5. As a result of Defendant's failure to comply with the mortgage, Plaintiff accelerated the Mortgage, which amount to date has not been paid. 6. By the terms of the Mortgage, upon breach and failure to cure said breach after notice, all sums secured by said Mortgage, together with other charges authorized by said Mortgage itemized below, are immediately due. 7. After demand, the Defendant(s) continues to fail or refuses to comply with the terms of the Mortgage by failing or refusing to pay the accelerated amount due, itemized as of March 8, 2001, as follows: Principal of debt due and unpaid Interest at 7.875% from 2/1/00 to 3/8/01 (the per diem interest accruing on this debt is $5.52 and that sum should be added each day after 3/8/01) Title Report Court Costs (anticipated, excluding Sheriff's Sale costs) Escrow Overdraft/(Balance) (The monthly escrow on this account is $0.00 and that sum should be added on the first of each month after 3/8/01) Late Charges (monthly late charge of $0.00 should be added on the fifteenth of each month after 3/8/01) Corporate Advance Attorneys Fees (anticipated and actual to 5% of principal) TOTAL 8. The attorney's fee set forth above are with the mortgage documents and Pennsylvania law, $25,219.86 2,219.04 250.00 280.00 0.00 0.00 518.40 /~60.99 $29,748.29 in conformity 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. 9. Notice of Intention to Foreclose under Act 6 of 1974 of the Commonwealth of Pennsylvania is not required as the original principal amount exceeds the sum of $50,000.00. The notice specified by the Pennsylvania Homeowner's Emergency Mortgage Assistance Program, Act 91 of 1983, has not been sent because the Mortgage is insured by the Federal Housing Administration ("FHA") and the notice is therefore not required. WHEREFORE, the Plaintiff demands judg~nent, in rem, against the Defendant(s) herein in the sum of $29,748.29 plus interest, costs and attorneys fees as more fully set forth in the Complaint, and for foreclosure and sale of the Mortgaged premises. Mark J. Udren, ESQUIRE MARK J. UDREN & ASSOCIATES Attorney for Plaintiff Attorney I.D. No. 04302 ALL that certain tract or'land situate in V/sst Peunsbo~o Township, Onnbefland County, peunSylvsnh, bounded and de~'tbed in an~ordanco with plans known ns Phtse I C~ss P. oed School Road Emtes prepated by I~odney Lee l:)gs:ker, P..P.L.S.,.dated January 22, 19~3 and' reoorded in dm Offloo of~he Reo0rd~ 0f Doed~ For Cun~d County in Plan Book 66, Page .... 104 and Phase 2, Cross R~o~d School Ro~ dated August ~ 1994 md ~:orcbd I~l th~ Ot'~:e ot'.tho l~ordm' or' ~ (or Cuml~'lami County In Plan Book 72, pn~e 60. BEGINNING at a point In northm'n si~inmtr, way line of'V/atson Drive, ,,t comm' of Lot No. 3 of Cro~ Road Sdmol Roed Estatss~ thanee along Lot No. 3, North 29 deg~es I$ mfnutss $0 seconds West 335.49 f~t to a point; thence along oth~ lan~ now or ~omtcfly oflqrJmtm In,, and Hnmmn Oravss, loc,. Noflh 60 da~re~s 41 minutss lO ,.econds East 200,00 feet to a point; thence along Lot No.'l, Phase I ot~ Cross Road Sclmoi Road Estnte~, South 33 da~x'~ms 09 m.bmtss ~0 s~onds~F, sst 30~,09 I'eet to a point In not'tiara right-of, way Hne ot'Wmon Drive,. thence along northern rJBht-of'*wn~' line of Watson Ddv~ South 53 dciP'e~ 2S mlnuMs 50 seconds West qq.~2.47 feet to n po~ tha Place of CONTAINING 1.556 acres end dssignated ss Lot No. 2. pm of Phase I and Pszt of Phase 2 on Plan of'Cron Road School Road Emro. AND BKINGpart ora certain larger trent of'land which Nancy R. Watson, by deed dated L"-~'___.~nbm' 17, 1986 and r~ in Cumberland County Deed Book *J", Volume 32. Page $89, ~l'anted md conveyed to ICimbn. ]ne. mid Hunnon Graves Company, Orunton her~in. Mark J. Udren, Esquire, hereby states that he is the attorney for the Plaintiff, a corporation unless designated otherwise; that he is authorized to take this Verification and does so because of the exigencies regarding this matter, and because Plaintiff must verify much of the information through agents, and because he has personal knowledge of some of the facts averred in the foregoing pleading; and that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief and the source of his information is public records and reports of Plaintiff's agents. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Mark J. Udren, ESQUIRE MARK J. UDREN & ASSOCIATES MARK J. ODREN & ASSOCIATES BY= Mark J. Udren, Esquire ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHEP. RY HILL, NJ 08034 856-482-6900 National City Mortgage 3232 Newmark Drive Miamisburg, OH 45342 Plaintiff Vo Beverly A. Grindley P.O. Box 1394 Carlisle, PA ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION cumberland County NO.01-1586 17013 : Defendant (s) : MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR LEAVE TO AMEND COMPLAINT PURSUANT TO Pa.R.C.P. 1033 The Pennsylvania Rules of Civil Procedure provide as follows: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. Pa.R.C.P. 1033. The role makes clear that amendment to pleadings is freely permitted. Decisional law reinforces that conclusion. Liberal right of amendment is afforded all litigants and a complaint may be amended even if doing so chages the cause of action, provided the statute of limitations has not mn. See Ea~tgate Enterprises!nc. ~Z,_Bank & Trust Co. of Old York Road, 345 A.2d 279 (Pa. Super. 1975). Moreover, even the statute of limitations is no bar to amendment of the complaint, where there is no change in the cause of action and no new party is added. Mancini v. Cooxxmt~- iberty Smfings~LoanT~ss'n: 445 A.2d 744 (Pa. Super. 1982), quoting Goodrich Amram, Vol. 2, page 363. In this mortgage foreclosure action, Plaintiff initially pled a default in making monthly payments due under the Mortgage. The acoelerated mount due was properly set forth and in rem relief requested.. Plaintiffnow seeks to emend the Complaint to allege a non- monetary default, to wit, the failure to complete construction on or before November 10, 1999, as required by the Constmction/P,mianent Rider. The cause of action will remain unchanged, as will the parties and the request for relief. The cause of action in both instances is mortgage foreclosure, only the nature of the default is different. Moreover, Plaintiff's claim is well within the applicable statute of limitations for an action in mortgage foreclosure. As such permitting emendment of the Complaint to properly specify the nature of the default is not only permissable, but it is appropriate under the rules. RESPECTFULLY SUBMITTED, Mark~'" VERIFICATION I VERIFY THAT I AM ATTORNEY FOR PLAINTIFF AND I FAMILIAR WITH THE PROCEDURAL HISTORY OF THIS CASE AND AUTHORIZED TO MAKE THIS VERIFICATION THAT THE FOREGOING FACTS ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE, INFORMATION AND BELIEF. I UNDERSTAND THAT THIS STATEMENT IS MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. SECTION 4904, RELATING TO LrNSWORN FALSIFICATION TO AUTHORITES. MARK J. UDREN, ESQUIRE ATTORNEY FOR PLAINTIFFS CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT I PERSONALLY SERVED A TRUE AND CORRECT COPY OF THE FOREGOING MOTION FOR LEAVE TO AMEND PURSUANT TO Pa.R.C. P. 1033 UPON COUNSEL FOR DEFENDANT, PETER J. RUSSO, ESQUIRE ON DECEMBER 12, 2001. LORRAINE G. ROMOLINI, Esquire MARK J. UDREN & ASSOCIATES MARK J. UDHEN & ASSOCIATES BY= Mark J. Udren, Esquire ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage 3232 Newmark Drive Miamlsburg, OH 45342 Plaintiff Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013 Defendant(s) ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION :Cumberland County !NO.01-1586 AMENDED COMPLAINT IN MORTGAGE FORECLOSURE FILED PURSUANT TO COURT ORDER DATED DECEMBER 17, 2001 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. LAWYERS REFERRAL SERVICE Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 717-249-3166 or 800-990-9108 Le ban demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta ascentar una comparencia escrita o en persona o con un abo9ado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se dafiende, la corte tomara medlda$ y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE, SI NO TIEN~ ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTP. A ESC~ITA ABAJO PARA AVERI~UAR DOND~ SE PUEDE CONSE~UI~ ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 717-249-3166 or 800-990-9108 NATIONAL CITY MORTGAGE,: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. BEVERLY A. GRINDLEY, Defendant CIVIL ACTION- LAW NO. 01-1586 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT B~FORE HOFFER, P.J.~. and OLER~ J. ORDER OF COURT AND NOW, this 17th day of December, 2001, after careful consideration of Defendant's Motion for ,Summary Judgment, and of Plaintiff's Motion for Leave To Amend Complaint, Defendant's Motion for Summary Judgment is denied and Plaintiff's Motion for Leave To Amend Complaint is granted. XJ. Udren, Esq. North Kings Highway 500 Cherry Hill, NJ 08034 Attorney for Plaintiff Peter J. Russo, Esq. '50 llJ East Trindle Road Suite 200 Mechanicsburg, PA 17050 Attorney for Defendant :rc BY THE COURT, NOTICE The amount of your debt is as stated in the attached document. The name of the creditor to whom the debt is owed is as named in the attached document. Unless you notify us within 30 days after receipt of this Notice and the attached document that the validity of the stated debt, or any portion of it, is disputed, we will assume that the debt is valid. If you do notify us in writing of a dispute within the 30 day period, we will obtain verification of the debt or a copy of a judgment against you, and marl it to you. If you do not dispute the debt, it is not an admission of liability on your part. Also, upon your written request within the 30 day period, we will provide you with the name and address of the original creditor if different from the current creditor. If you notify us in writing within the 30 day period as stated above, we will cease collection of your debt, or any disputed portion of it, until we obtain the information that is required and marl it to you. Once we have marled to you the required information, we will then continue the collection of your debt. This law firm is deemed to be a debt collector and this Notice and the attached document is an attempt to collect a debt, and any information obtained will be used for that purpose. LAW OFFICES OF MARK J. UDREN /s/Mark J. Udren, Esquire 1040 N. Kings Highway, Suite 500 Cherry Hill, NJ 08034 (856) 482-6900 1. Plaintiff is the Corporation designated as such in the caption on a preceding page. If Plaintiff is an assignee then it is such by virtue of the following recorded assignments: Assignor: N/A Assignments of Record to: N/A Recording Date: N/A 2. Defendant(s) is the individual designated as such on the caption on a preceding page, whose last known address is as set forth in the caption, and unless designated otherwise, is the real owner(s) and mortgagor(s) of the premises being foreclosed. 3. On or about the date appearing on the Mortgage hereinafter described, at the instance and request of Defendant(s), Plaintiff (or its predecessor, hereinafter called Plaintiff) loaned to the Defendant(s) the sum appearing on said Mortgage, which Mortgage was executed and delivered to Plaintiff as security for the indebtedness. Said Mortgage is incorporated herein by reference in accordance with PA.R.C.P. 1019 (g). The information regarding the Mortgage being foreclosed is as follows: MORTGAGED PREMISES: 2 Crossroads School 36 Watson Drive MUNICIPALITY/TOWNSHIP/BOROUGH: West PennsborQ Township COUNTY: Cumberland DATE EXECUTED: 7/19/99 DATE RECORDED: 7/21/99 BOOK: 1558 PAGE: 482 The legal description of the mortgaged premises is attached hereto and made part hereof. 4. Said mortgage is in default because of failure to comply with the Construction/Permanent Rider which mandates that contructlon of the residence "shall be completed on or before 5. As a result of Defendant's failure to comply with the mortgage, Plaintiff accelerated the Mortgage, which amount to date has not been paid. 6. By the terms of the Mortgage, upon breach and failure to cure said breach after notice, all sums secured by said Mortgage, together with other charges authorized by said Mortgage itemized below, are immediately due. 7. After demand, the Defendant(s) continues to fail or refuses to comply with the terms of the Mortgage by failing or refusing to pay the accelerated amount due, itemized as of March 8, 2001, as follows: Principal of debt due and unpaid Interest at 7.875% from 2/1/00 /8/Ol (the per diem interest accruing on this debt is $5.52 and that sum should be added each day after 3/8/01) $25,219.86 2,219.04 Title Report 250.00 Court Costs (anticipated, excluding Sheriff's Sale costs) 280.00 Escrow Overdraft/(Balance) (The monthly escrow on this account is $0.00 and that sum should be added on the first of each month after 3/8/01) 0.00 Late Charges (monthly late charge of $0.00 should be added on the fifteenth of each month after 3/8/01) 0.00 Corporate Advance 518.40 Attorneys Fees (anticipated and actual to 5% of principal) TOTAL $29,748.29 8. The attorney's fee 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. 9. Notice of Intention to Foreclose under Act 6 of 1974 of the Commonwealth of Pennsylvania is not required as the original principal amount exceeds the sum of $50,000.00. The notice specified by the Pennsylvania Homeowner's Emergency Mortgage Assistance Program, Act 91 of 1983, has not been sent because the Mortgage is insured by the Federal Housing Administration ("FHA") and the notice is therefore not required. WHEREFORE, the Plaintiff demands judgment, in rem, against the Defendant(s) herein in the sum of $29,748.29 plus interest, costs and attorneys fees as more fully set forth in the Complaint, and for foreclosure and sale of the Mortgaged premises. Mark J. Udren, ESQUIRE MARK J. UDREN & ASSOCIATES Attorney for Plaintiff Attorney I.D. No. 04302 -:~'.-.-: :-.: :-: .~eunsylvsnla. bouid~ iud dean'bed in as~ndsncl with ptena known ss Phase ! C~oss Ro~d '"' ';-' ' ?...,-....,. ::~~~~~~~~,~:-.../-.'...:: ,..?:..:, ... Mark J. Udren, Esquire, hereby states that he is the attorney for the Plaintiff, a corporation unless designated otherwise; that he is authorized to take this Verification and does so because of the exigencies regarding this matter, and because Plaintiff must verify much of the information through agents, and because he has personal knowledge of some of the facts averred in the foregoing pleading; and that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief and the source of his information is public records and reports of Plaintiff's agents. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Mark J. Udren, ESQUIRE MARK J. UDREN & ASSOCIATES MA~K J. UDREN & ASSOCIATES BY= Mark J. Udren, Esquire ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage 3232 Newmark Drive Miamisburg, OH 45342 Plaintiff Beverly A. Grindley P.O. Box 1394 Carl.isle, PA 17013 Defendant(s) SUITE 500 ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION Cumberland County NO.01-1586 PRAECIPE TO FILE CERTIFICATE OF SERVICE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly file the attached Certificate of Service (to Amended Complaint in Mortgage Foreclosure filed Pursuant to Court Order dated December 17, 2001) in the above-captioned case. Respectfully submitted, MARK J. UDREN & ASSOCIATES Mark Jo Udren, Esquire MARK J. UDHEN & ASSOCIATES BY: Mark J. Udren, Esqlaire ATTY I.D. NO. 04302 1040 N. MINOS HIOHWA¥, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage 3232 Newmark Drive Miamisburg, OH 45342 Plaintiff Vo Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013 Defendant(s) ATTORNEY FOR PLAINTIFF :COURT OF COMMON PLEAS i CIVIL DIVISION :Cumberland County i N0.01-1586 I hereby certify that I served a true and correct copy of the Amended Complaint in Mortgage Foreclosure Filed Pursuant to Court Order Dated December 17, 2001 upon Peter J. Russo, Esquire at 5010 East Trindle Road, Suite 200, Mechanicsburg, PA 17050 on JanuaryS, 2002. Mark J. Udren, Esquire MARK Jo UDREN & ASSOCIATES MARK J. UDREN & ASSOCIATES BY: Mark J. Udren, Esquire ATTY I.D. NO. 04302 1040 N. KIN~S HI@HWAY, SUITE 500 CHERRY HILL, NJ 08034 856-~82-6900 National City Mortgage 3232 Newmark Drive Miamisburg, OH 45342 Plaintiff Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013 Defendant(s) ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION :Cur~erland County !NO.01-1586 CERTIFICATE I hereby certify that I served a true and correct copy of the foregoing Praecipe to File Certificate of Service upon Peter J. Russo, Esquire at 5010 East Trindle Road, Suite 200, Mechanicsburg, PA 17050 on JanuaryJ3~, 2002. Mark J. Udren, Esquire MARK J. UDREN & ASSOCIATES PETER & RUSSO, ESQUIRE 5010 East Trindle Road, Suite 200 Mechanicsburg, PA 17050 (717) 591-1755 NATIONAL CITY MORTGAGE,: Plaintiff : BEVERLY A GRINDLEY, Defendant Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-1586 CIVIL : CIVIL ACTION - LAW : : JURY TRIAL DEMANDED WITHDRAWAL AS COUNSEL Kindly withdraw my appearance as counsel on behalf of Beverly A. Grindley, Defendant in the above matter. Date: January 9, 2002 Peter J. Russo, Esquire 5010 E. Trindle Road Mechanicsburg, PA 17050 ENTRY OF APPEARANCE AS COUNSEL Defendant in the above matter. Date:4~/,J` /2./. 2-~a> ~_ Kindly enter my appearance as counsel on behalf of Beverly A. Grindley, 213 Carlisle Street Hanover, PA 17331-2410 PETER J. RUSSO, ESQUIRE 5010 East Trindle Road, Suite 200 Mechanicsburg, PA 17050 (717) 591-1755 NATIONAL CITY MORTGAGE,: Plaintiff : : V. : .. BEVERLY A GRINDLEY, : Defendant : Attomey for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-1586 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Melissa M. Mehaffey, hereby certify that I am on this day serving a copy of the WITHDRAWAL AND ENTRY OF APPEARANCE AS COUNSEL upon the person (s) and in the manner indicated below, service by First-Class Mail, Postage Prepaid, and Addressed as Follows: Date: Mark J. Udren, Esquire Mark J. Udren & Associates 1040 North Kings Highway Suite 500 Cherry Hill, NJ 08034 Melissa M. Mehaffey (/~ ,/ - FEB 1 ZO0 - NATIONAL CITY MORTGAGE, Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW BEVERLY A. GRINDLEY Defendant. DOCKET NO. 01-1586 RULE TO SHOW CAUSE AND NOW, this ~}'~ day of ~ ,2002, a rule is granted to show cause why Oakwood Custom Homes, Inc. should not be permitted to intervene in this action and why the proceedings should not be stayed until the action seeking Specific Performance docketed at 02-245 is resolved. Rule returnable · All proceedings are stayed in the meanwhile. dark J. Udren, Esquire 1040 N. Kings Highway, Suite 500 Chen'y. Hill, NJ 08034 ~stopher T. Restak, Esquire 213 Carlisle Street Hanover, PA 17331 ~. Grainger Bowman 114 N. Second Street Harrisburg, PA 17101 ' {- HB:43631v1 4116-01 POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Anthony S. Potter 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Oakwood Custom Homes, Inc. NATIONAL CITY MORTGAGE, Plaintiff, BEVERLY A. GRINDLEY Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW DOCKET NO. 01-1586 OAKWOOD CUSTOM HOMES, INC's PETITION TO INTERVENE AND NOW, Oakwood Custom Homes, Inc., by and through its undersigned counsel, files this Petition to Intervene in the above-referenced mortgage foreclosure action pursuant to Pa. R.C.P. 2328, and in support thereof avers as follows: PARTIES 1. Petitioner is Oakrwood Custom Homes, Inc. ("Oakwood") a Pennsylvania Corporation with offices located at P.O. Box 358, Mount Joy, Pennsylvania that, among other things, builds custom homes. 2. Plaintiff is National City Mortgage ("National") which upon information and belief is a Corporation with a principal place of business located at 3232 Newmark Drive Miamisburg, Ohio 45342. 3. Defendant is Beverly A. Grindley ("Grindley") an adult individual who upon information HB:43610vl 4116-01 and belief resides at 58 South Corporation Street, Newville, Pennnsylvania 17241 and also has an address listed as PO Box 1394, Carlisle, Pennsylvania 17013-6394. PRIOR DECISIONS 4. Pursuant to C.C.R.P. 206-2(a) Petitioner states that on or about December 17, 2001, the Honorable J. Wesley Oler, Jr., Judge and the Honorable George E. Hoffer, President Judge ruled on Grindley's motion for summary judgment and National's motion for leave to amend its complaint. FACTUAL BACKGROUND 5. Grindley was and still is the legal title holder to the premises known as 36 Watson Drive, in the Township of West Pennsboro, in the County of Cumberland, Pennsylvania ("property"). 6. Upon information and belief, National loaned Grindley money and Grindley granted National a mortgage that covers the property as security for the indebtedness. 7. On or about February 15, 1999, Grindley entered into a Construction Agreement with Oakwood for the construction ora single family home on the property. 8. Several claims and disputes arose between Oakwood and Grindley under the Construction Agreement and actions relating to these claims were pending before the Courts of Common Pleas of Lancaster and Cumberland County. 9. On Thursday, November 15, 2001, Oakwood and Grindley engaged in a mediation of the claims relating to improvements and construction that occurred on the property pursuant to their Construction Agreement. 10. At the mediation, Grindley was represented by Peter J. Russo, Esquire and Oakwood was represented by C. Grainger Bowman, Esquire. HB:43610v1 4116-01 2 11. At the conclusion of the mediation, Grindley and Oakwood entered into a four page written settlement agreement dated November 15, 2001. The memorandum of understanding ("agreement"). (A copy of this agreement is not attached because the agreement contains a confidentiality clause prohibiting Oakwood from disclosing the terms of the settlement. Upon order of the Court, however, a true and correct copy of the executed agreement will be made available for in camera inspection.) 12. The agreement was executed and initialed by Beverly Grindley on each and every page, signed by Attorney Russo as a witness, executed and initialed by Douglas Zook, President of Oakwood on every page, and signed by Bowman as a witness. 13. In the written agreement, Grindtey agreed to transfer title to the real property located at 36 Watson Drive, West Pennsboro Township, Cumberland County, Pennsylvania to Oakwood by special warranty deed, free and clear of all liens and encumbrances. 14. Under the terms of the agreement, closing was to occur on or before December 31, 2001. 15. Grindley failed to provide Oakwood with notice of the closing date in accordance with the agreement. 16. Sometime after entering into the agreement with Oakwood, Grindley retained Christopher T. Restak, Esquire ("Restak") as counsel for the matters that were settled by the November 15, 2001 agreement. 17. On Monday, December 17, 2001, Oakwood sent a Notice of Closing to Grindley scheduling the closing for 10:00 a.m. on December 31,2001 at the law offices of Peter Russo. HB:43610v1 4116-01 3 18. On December 17, 2001, Oakwood also sent a separate letter to Attorney Restak reiterating that Oakwood did not wish to renegotiate the terms of the agreement and enclosing a copy of the Notice of Closing. 19. On December 24, 2001, Oakwood by and through its attorney spoke with both Attorney Restak and Attorney Russo advising them that Oakwood intended to appear at the real estate closing scheduled for December 3l, 2001 in order to perform the terms of the agreement. 20. By letter dated December 27, 2001, Grindley, by and through Attorney Restak, informed Oakrwood that Grindley would not attend settlement because the agreement "does not address her concerns, nor her financial exposure in this case...." 21. On December 28, 2001, Griudley by and through her counsel, sent a facsimile transmission repeating that she would not attend the settlement on December 31,2001. 22. On December 28, 2001, Oakwood sent a letter to Attorney Restak noting that Grindley's refusal to perform in accordance with the terms of the agreement constitutes a material breach of the agreement and indicating that Oakwood is ready, willing and able to perform the terms of the agreement. Moreover, the December 28, 2001 letter indicated that Oakwood intended to seek specific performance of the agreement. 23. On December 28, 2001, Oakwood sent a letter to Attorney Russo noting that the settlement scheduled for December 31, 2001 was cancelled by Grindley and reiterating that Oakwood was ready, willing and able to perform the terms of the agreement. In addition, the letter indicated that Oakwood would seek specific performance of the agreement. 24. Oakwood, by its attorney, has made tender in the aforesaid manner upon Grindley HB:43610vl 4116-01 4 through her attorneys. 25. The November 15, 2001 agreement entered into between Oakwood and Grindley provides that time is of the essence. 26. Tho November 15, 2001 agreement expressly states that the agreement between Oakwood and Grindley may be enforced through an action for specific performance. 27. Oakwood was and still is ready, willing, and able to make settlement and complete the transfer of the property in accordance with the terms of said agreement, but Grindley has refused and still refuses to carry out the said agreement or to sign, execute, and deliver the special warranty deed for said property as contemplated by the agreement. 28. On January 17, 2002, Oakwood filed a complaint seeking specific performance of the November 15, 2001 agreement with this Honorable Court. Oakwood's action seeking specific performance is docketed at 02-245. A true and correct copy of the complaint is attached hereto as Exhibit "A." 29. On or about February 7, 2002, Grindley filed an Answer which admits all material facts alleged in Oakwood's complaint seeking specific performance. A true and correct copy of Grindley's Answer, New Matter and Counterclaim is attached hereto as Exhibit "B." 30. As admitted by Grindley in her answer, the mount of consideration promised by Oakwood in the November 15, 2001 agreement is more than sufficient to satisfy the amount of the mortgage held by National. See Complaint and Answer ¶ 28. 31. The November 15, 2001, agreement grants and conveys to Oakwood equitable title to the property. HB:43610vl 4116-01 5 32. Oakwood intends to file a motion for judgment on the pleadings in its action seeking specific performance and intends on listing the motion for argument as soon as possible. 33. It is believed and therefore averred that Grindley cannot adequately protect Oakwood's equitable title to the real estate or adequately defend and protect the real estate from foreclosure. 34. It is believed and therefore averred that Oakwood is an indispensable party to this mortgage foreclosure proceeding. WHEREFORE, Oakwood Custom Homes, Inc., respectfully requests that this Honorable Court grant relief as follows: 1. granting its petition to intervene in the above-captioned matter; 2. staying the mortgage foreclosure proceedings pending resolution of Oakwood's action seeking specific performance of the November 15, 2001 agreement; and 3. awarding such other and further relief that the Court deems appropriate including costs, penalties, and attorneys fees and any other relief as permitted by law. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. C. Grai/ffger Bowman I.D. ~15706 Anthony S. Potter I.D. # 75903 114 N. Second Street Harrisburg, PA 17101 717-238-9300 Fax: 717-238-9325 Date: February 19, 2002 HB:43610v1 4116-01 6 CERTIFICATE OF SERVICE AND NOW, on February 19, 2002, I hereby certify that I have served a true and correct copy of the within Oakwood Custom Homes, Inc.'s Petition to Intervene upon the following person(s) by regular first class United States mail, postage prepaid. Mark J. Udren, Esq. 1040 N. Kings Highway, Suite 500 Cherry Hill, NJ 08034 Christopher T. Restak, Esq. 213 Carlisle Street Hanover, PA 17331 Anthonyyotter HB:43641vl 4116-01 POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Anthony S. Potter 114 North Second Street Harrisburg, PA 17101 717-238-9300 FAX: 717-238-9325 Attorneys for Oakwood Custom Homes, Inc. OAKWOOD CUSTOM HOMES, INC., Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY BEVERLY A. GRINDLEY-GRIFFITH Defendant. EQUITY DOCKET NO.(~ NOTICE TO DEFEND 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 an attorney, and filing in writing with the court your defenses or obj ecfions to the claims set forth against you. You are wamed 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 claim or relief requested by the defendant. Youmaylose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE OR KNOW A LAWYER, THEN YOU SHOULD 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 HB:43359v1 4116-01 TRUE COPY FROM RECORD t1~ Te~tlmeny tvhereof, I here unlo set my band AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las sigaientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y obi ecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un t~allo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEME LLEVAR ESTE DOCUMENTO A SU ABOGADO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICFNA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Date: January 16, 2002 POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. C. GraJnger B. owman I.D. #15706,~ Anthony S. Potter I.D. #75903 114 North Second Street Hatrisburg,.PA 17101 (717) 238-9300 Attorneys for Oakwood Custom Homes, Inc. HB:43359v1 4116-01 POWELL, TRACHTMAN, LOGAN, CARRLE BOWMAN & LOMBARDO, P.C. C. Grainger Bowman Anthony S. Potter 114 North Second Street Harrisburg, PA l 7101 717-238-9300 FAX: 717-238-9325 Attorneys for Oakwood Custom Homes, Inc. OAKWOOD CUSTOM HOMES, INC., Plaintiff, BEVERLY A. GR1NDLEY-GRIFFITH Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. COMPLAINT AND NOW, Oakqvood Custom Homes, Inc., by and through its undersigned counsel, files this Complaint seeking specific performance ora November 15, 2001 agreement for the transfer of a parcel of real property located at 36 Watson Drive, West Pennsboro Township, Cumberland County, Pennsylvania, and in support thereof avers as follows: 1. Plaintiff is Oakwood Custom Homes, Inc. ("Oakwood") a Pennsylvania Corporation with offices located at P.O. Box 358, Mount Joy, Pennsylvania that, among other things, builds custom homes. 2. information and belief resides at 58 South Corporation Street, Newville, Pennnsylvania 17241 and also has an address listed as PO Box 1394, Carlisle, Pennsylvania 17013-6394. 3. Grindley was and still is the owner of the premises known as 36 Watson Drive, in the The defendant is Beverly A. Grindley-Griffith ("Grindtey") an adult individual who upon HB:43305v1.4116-01 Township of West Pennsboro, in the County of Cumberland, Pennsylvania ("property"). 4. On Thursday, November 15, 2001, plaintiff and defendant engaged in mediation of several claims between the parties relating to improvements and construction that occurred on the property. 5. At the mediation, Grindley was represented by Peter J. Russo, Esquire ("Russo") and Oakwood was represented by C. Grainger Bowman ("Bowman"). 6. At the conclusion of the mediation, Grindley and Oakwood entered into a four page written settlement agreement dated November 15, 2001 in the form of a memorandum of understanding ("agreement"). The agreement was executed and initialed by Beverly Grindley on each and every page, signed by Attorney Russo as a witness, executed and initialed by the President of Oakwood on every page, and signed by Bowman as a witness. (A copy of this agreement is attached as Exhibit "A" to the copy of the Complaint served upon Defendant and is incorporated by reference into this complaint. Because the agreement contains a confidentiality clause prohibiting either party from disclosing the terms of the settlement, the agreement is deliberately excluded from the copy of the Complaint filed with the Prothonotary of Cumberland County. Upon order of the Court, however, a true and correct copy of the executed agreement will be made available for in camera review.) 7. In the written agreement, Grindley agreed to transfer title to the real property located at 36 Watson Drive, West Pennsb0ro Township, Cumberland County, Pennsylvania to Oakwood by special warranty deed, free and clear of all liens and encumbrances. 8. Under the terms of the agreement closing was to Occur on or before December 31, 2001. HB:43305v1 4116-0~ 2 9. The agreement required Grindley to give Oakwood two weeks advance notice of the precise date for the closing. Grindley failed to provide Oakwood notice of the closing date in accordance with the 10. agreement. 11. Sometime after entering into the agreement with Oakwood, Grindley retained Christopher T. Restak, Esquire ("Restak") as counsel fbr the matters that were settled by the November 15, 2001 agreement. (A copy ora December 10, 2001 letter from Restak to Bowman is attached as Exhibit "B" and is incorporated by reference into this complaint.) 12. On Monday, December 17, 2001, Oakwood sent a Notice of Closing to Grindley scheduling the closing for 10:00 a.m. on December 31, 2001 at the law offices of Peter Russo. (The Notice of Closing was sent by counsel for Oakwood to Grindley, Attorney Russo, and Attorney Restak. A copy of the December 17, 2001 Notice of Closing is attached as Exhibit "C" and is incorporated by reference into this complaint.) 13. On December 17, 2001, Oakwood also sent a separate letter to Attorney Restak reiterating that Oakwood did not wish to renegotiate the terms of the agreement and enclosing a copy of the Notice of Closing. (A copy of the December 17, 2001 letter is attached as Exhibit "D" and is incorporated by reference into this complaint.) 14. On December 19, 2001, Oakwood in accordance with the agreement faxed a certificate of liability insurance naming Grindley as an additional insured to Attorney Restak. (A copy of the December 19, 2001 fax transmission along with the Certificate of Liability Insurance is attached hereto as Exhibit "E" and is incorporated by reference. HB:4330fiV1 4116-01 3 15. On December 24, 2001, Oakwood by and through its attoraey spoke with both Attorney Restak and Attorney Russo advising them that Oakwood intended to appear at the real estate closing scheduled for December 31,2001 in order to perform the terms of the agreement. 16. By letter dated December 27, 2001, Grindley, by and through Attorney Restak, informed Oakwood that Grindley would not attend settlement because the agreement "does not address her concerns, nor her financial exposure in this case...." (A copy of the December 27, 2001 letter is attached as Exhibit "F" and is incorporated by reference.) 17. On December 28, 2001, Grindley by and through her counsel, sent a facsimile transmission repeating that she would not attend the settlement on December 31, 2001. (A copy of the December 28, 2001 fax is attached as Exhibit "G" and is incorporated by reference.) 18. On December 28,2001, Oakwood sent a letter to Attorney Restak noting that Grindley's refusal to perform in accordance with the terms of thc agreement constitutes a material breach and indicating that Oakwood is ready, willing and able to perform the terms of the agreement. Moreover, the December 28, 2001 letter indicated that Oakwood intended to seek specific performance of the agreement. (A copy of the December 28, 2001 letter is attached as Exhibit "H" and is incorporated by reference.) 19. On December 28, 2001, Oakwood sent a letter to Attorney Russo noting that the settlement scheduled for December 31, 2001 Was cahcelled by Grindley and reiterating that Oakwood was ready, willing and able to perform the terms of the agreement. In addition, the letter indicated that Oakwood would seek specific performance of the agreement. (A copy of the December 28, 2001 letter is attached as Exhibit 'T' and is incorporated by reference.) HB:43305vl 4116-01 4 20. Oakwood, by its attorney, has made tender in the aforesaid ~nanner upon Grindley through her attorneys. 21. The aforementioned tenders were refused by Grindley. 22. Oakwood's tenders were refused because of Grindley's apparent erroneous belief that the agreement she executed on November 15, 2001 with the advice of counsel is not binding. 23. The November 15, 2001 agreement entered into between Oakwood and Grindley provides that time is of the essence. 24. Oakwood was and still is ready, willing, and able to make settlement and complete the transfer of the property in accordance with the terms of said agreement, but Grindley has refused and still refuses to carry out the said agreement or to sign, execute, and deliver the special warranty deed for said property as contemplated by the agreement. 25. Oakwood has satisfied all conditions precedent to bringing this action. 26. Upon information and belief, Grindley has a mortgage on the property with National City Mortgage. 27. Upon information and belief, National City Mortgage has filed a mortgage foreclosure action against Grindley in this Court and said action is docketed at 01-1586. 28. Upon information and belief, the amount of consideration promised by Oakwood in the November 15, 2001 agreement is more than Sufficient to satisfy the amount of Grindley'g mortgage. WHEREFORE, Oakwood Custom Homes, Inc., needing equitable relief, respectfully requests that this Honorable Court decree and direct Beverly A. Grindley-Griffith as follows: 1. That the defendant, Beverly A. Grindtey-Griffith, be enjoined and restrained HB:43305vI 41t 6-01 5 temporarily until final hearing and pern~anently thereafter from conveying, selling, encumbering, or transferring the premises known as 36 Watson Drive, West Pennsboro Township, Cumberland County, Permsylvania. 2. That upon the payment of the consideration identified in the Memorandum of Understanding, defendant, Beverly A. Grindley-Griffith, be ordered to provide clear title to the property by special warranty deed, free and clear of all liens and encumbrances backed by an attorney certificate and that clear title to the property be provided no later than April 30, 2002. 3. That such other and further relief that the Court deems appropriate be granted including costs, penalties, and attorneys fees and any other relief as permitted by law. POWELL, TRACHTMAN, LOGAN, CARRLE, BOWMAN & LOMBARDO, P.C. By d~'~C '~0r B~°~-~'/"~I~6 - Anthony S. Potter I.D. # 75903 114 N. Second Street Harrisburg, PA 17101 717-238-9300 Fax: 717-238-9325 Date: January 16, 2002 HB:43305V1 4116~01 6 EXHIBIT "A" [Deliberately Excluded as per Paragraph 6.] CI IRISTOP! i ER RESTAK ATTORNEY AT LAW December 10, 2001 By Facsimil.e: (717) 238-932fi Original by mail. Cnainger Bowman, Esq. Powell, Trachtman, Logan, PC 114 North Second Street Harrisburg, PA 17101 RE: Beverly Orindley Griffith and Oakwood Custom Homes Dear Attorney Bowman: I wanted to. thank you for the time that you spent speaking with me on Thursday. You made it clear that your client considers the arrangement with Beverly as final and binding and that you .would vigorously oppose anyone looking to "upset" that agreement. I appreciate your ca~dor and want to assure you that 2{ am not out to achieve that objective, to an upset any agreement that was rendered in good faith and with benefit of counsel. I do intend however, to satisfy my client's request that I look into the particulars of the arrangement that she underwood she was agreeing to on November 1 $ and to assist her in achieving that obje~ive. I have spoken with Attorney Peter Rnsso, who represented Beverly at the Mediation Hearing, /md was gratified by his apparent cordiality ~nd willingness to explain to me how the meeting was conducted. Peter was also candid in his position that he would not care to represent Beverly in case she opted to rescind the agreement. I am including a copy of the brief note that I sent to Peter, following our conversation, so that you can appreciate the limited extent to which we have been able to discuss the matter. I wanted to outline some of the issues that my client has with the proposed mediation settlement, between herself and your client, Oakwood Custom Homes (Oakwood), in the hope that we can resolve what issues appear to renmin open with that settlement, The referenced med/ation hearing took place on November 18, 200i, resulting in a hand written Memorandum of Understanding (Memo) between the two prospective parties, Grindley and Oakwood, concerning the resolution of a construction contract agreement EXHIBIT that both sides had entered into on or about February 15, 1999. Given the long history of documented e0nstXuction defects that Oakwood appears to have been responsible for and thc fact that the agreement contemplates a confidentiality component, whereby Beverly (and/or her agents) is prevented from discussing its particulars, she is left in a rather untenable position regm'ding any future prospects for building a home. I was able to speak with Steve yingst, a structural engineering consultant, retained by Beverly, and have read his reports. I was duly impressed by his rather lengthy recitation of significant construction defects. The type defects that Yingst identified are defects that should not be associated with such a relatively simple project. I think that one can fully appreciate Mrs. Grtndlcy's reluctance to remain mum about the negotiations and the events preceding the mediation hearing. The amount of the settlement, one reached after a marathon session of complex negotiations and scribed by informal addenda, will not begin to compensate Beverly for the leas of the mai estate that she is asked to abandon. Furthermore, she is asked to relinquish her site to the very party who purportedly is solely responsible for its current, non-saleable condition. Beverly never understood this to be the case, and claims that whatever complacent role she was asked to adopt, may have simply been the result of apparent overreaching on the part of a mediator who was understandably frustrated with the length of time devoted to the negotiations. One can appreciate that there must have been a great deal of pressure, exerted at the last minute, to achieve some written memorandum, given the length of time, and money that had already been devoted to the meeting. The 'billing records for the hearing indicate that upwards of twelve hours was spent in attempting to dispense with Beverly's problem, Immediately following the sigllJing of the memo Beverly contacted Mr. Russo, later the next morning, (November 19), and indicated her intention to either continue the negotiations, with Oakwood, or to proc~xi to ~0me further stage of representative adjudication, the draft of the current Memo notwithstanding. It was at this time that Russo apparently infurnled Beverly that he could not represent her in that effort, and recommended that she seek outside counsel. A call, to my office, by Beverly, soon followed. With the above recital as an historical background, I became involved in Beverly's case and immediately began to obtain the records of the negotiations. I have the following questions, and observations, that I would like to discuss with you in the hopes that we can, for once and for all, finalize a solution consistent with our client's mutual interest and well being. Beverly's primary concerns involve certain aspects of the Memo that directly relate to her responsibilities to her lender, National City Mortgage, who still · retains a mortgage on.the property. AS a consequence of her relationship with her lender, a lender intent upon foreclosing onthe property due to the incomplete work, she does not now wish to voluntarily relinquish the property but hopes to be able to continue to satisfy her current mortgage, so as to b~ able to either pay off Oakwood for the fair market value of their work. if any, or to have someone properly complete the work that was originally contemplated and contracted for by these parties (Oakw0od and Grindley). In light of your client's immediate response and return to the Schoolhouse Road site, following the mediation session, Beverly is confident that Oakwood wants to see the project, at long last, completed. ·Would you object to attempting a clarification of the language of the Memo, as it relates to Beverly's proscription from speaking about this project with necessary, outside contractors? Since Oakwood erected the improvements on Beverly's property for her benefit, she must be able to openly disenss the possibility of' having another complete the work, if Oakwood is unwilling, or unable, to do so. As a consequence she cannot remain silent as to construction details and specifications, as addressed in the Memo. Beverly has been independently contacted by the Department of Housing and Urban Development, mad she has agreed to assist them in determining why this project has required such an extensive degree of du~ diligence on the part of outside experts. She cannot adequately explain the situation and why she is being asked to not proceed with the necessary repairs, on her own initiative, rather than simply turn the project over to Oakwood without going into some detail concerning the consmaetion history of this site, as it relates to Oakwood's work. Beverly can only resolve the matter, by speaking freely to the investigators who apparently are intent upon appearing at the foreclosure hearings, eoncernlng the unique construction l~rOblems facing this residence. It seems clear that any subsequent purchaser of this home may need to know the reason for the delay in completion of this otherwise uncomplicated project. A strict reading of the Memo would prevent her from speaking freely about her personal history with this site. Beverly and her husband had chosen a unique site for the dream home that their budget, and means, would allow, only to be frustrated by the efforts of an allegedly ill equipped contractor. The Memo stated certain specific terms whereby both Grindley and Oakwood agreed to set'tlc the matter, concerning thc numerous construction defects that were present in the single-family residence that Oakwood had attempted to construct on behalf of my client. The memorandum went on to outline duties and responsibilities for both parties as wcll as a time schedule for performance of these duties. Items addressed in the memo, other than au agreed upon price of Forty-Five Thousand dollars ($45,000.00), to be paid to G-rindley by Oakwood, included provisions for property tax proration, cessation of future action against either party, and the necessity to retain the confidentiality of the agreement by and between the parties to the memo. According to some of thc particulars of the Memo, Beverly is to be named as an additional insured on Oakwood's certificates of insurauce, prior to Oakwood initiating any further work on her property. As you may already be aware, Oakwood proceeded to begin significant remedial work on the faulty foundation system without satisfying this ralher simple admtnlstrntive duty. No right of entry existed, for Oakwood, on to Grindley's property with or without the Memo, unless evidence of this insurance arrangement had been obtained. Has Oakwood made adequate arrangements~ consistent wigh.thc Memo's directive, concerning thc additional insured provisions? Lastly, and most important, will Oakwood agree to a completion schedule, that contemplates Orindley as the ultimate owner of the improvements? I hope that we can see clear to answer these questions and to help Beverly and John reach an equitable settlement in their efforts to complete this project. I trust that given the nature of this issue and my admittedly late introduction to the ongoing negotiations between these parties. I can rely on your prompt response_ Sincerely yours, Cc: Beverly Grindley (Griffith) POWF-' ',, TRACHTMAN, LOGAN, CAP~'LIi, BOWMAN ~' LOMBARDO 114~ NORTII SECOND STREET I]ARRISIIURG, PA 17101 (717) 238-9300 F^CSlHII.E (717) 238-9325 K DI~ C KIiR @ PO X,Vl~ L LTR ACIt TMAN .CO M December 17, 2001 Beverly A. Grindley Griffith 58 South Corporation Newville PA 17241 Re~ Oakwood Custom Homes v. Beverly A. Grindlev NOTICE OF CLOSING ON DECEMBER 31,2001 Dear Ms. Grindley Griffith: On November 15, 2001 you executed a settlement agreement in the form of a Memorandum of Understanding, resolving all matters with Oakwood Custom Homes. Pursuant to paragraph 5 of the Agreement, the real estate closing is scheduled to take place on or before December 31,2001. Pursuant to paragraph 9 of the Agreement, you are required to give Oakwood Custom Homes at least 2 weeks' notice of the date of closing. Therefore, we expected to receive your notice of the date of closing on or before Monday, December 17, 2001. If for any reason Oakwood Custom Homes does not receive from you the notice of closing, we have decided to give you notice of the time and place where closing will take place for.the real estate to evidence our intention to close, and carry out the terms of the Memorandum of Understanding. Oakwood Custom Homes will appear for the closing on December 31, 2001 at 10:00 AM in the law offices of Peter Russo, Esq. inasmuch as be is required to give an attorney's certificate of clear title for this transaction. If this time and place for settlement in Cumberland County differs 'from yom: plan, please let me know right away. I am sending a copy of this letter to Christopher Restak, Esq. and Peter Russo, Esq. for their information. HB:43103v1 4116-01 EXHIBIT beverly kJrllloley kJrllllUl December 17, 2001 Page 2 Thank you for your anticipated cooperation. CGB :khd cc: Peter Russo, Esquire Christopher Restak, Esquire (VIA FAX and US MAIL) Identical copy of this letter is being sent to: Beverly A. Grindley Griffith P.O. Box 1394 Carlisle PA 17013-6394 HB:43103v1 4116 01 Pow7 L, TRACItTMAN, LOGAN, CA' BOWMAN O LOMBARDO 114 NORTH SI!COND STREHI' HARRISBURG, PA 17101 (717) 238-9300 F^CSI~IU.I! (717) 238-9325 December 17, 2001 1F FAX (610) 354-9760 SUITE213 (856) 663-0021 Via Facsimile/First Class Mail Christopher T. Restak, Esq. 213 Carlisle Street Hanover PA 17331 Re: Grindlev/Oakwood Custom Homes, Inc. Dear Chris: Thank you for our various conversations regarding the Grindley/Oakwood transaction. As I have said over the phone, Oakwood Custom Homes intends to proceed with the resolution that was achieved in the Memorandum of Understanding of November 15, 2001. Oakwood does not wish to renegotiate the Memorandum of Understanding. The Memorandum of Understanding calls for the setting of a date, time and place for closing on the real estate. Mrs. Grindley-Griffith was to have given Oakwood a 2 week advance notice of closing (and the closing date was identified in the Memorandum of Understanding as December 31). Because today is December 17, I have taken the step to give Mrs. Grindley-Griffith notice of the date, time and place of the closing in my"attached letter of December '17, setting December 31 at 10 AM in the law offices of Peter Russo for these purposes. I enclose a copy of that Notice herewith for you. You and Peter Russo and 1 can talk more about the logistics o£ this closing on December 24, 200i by phone. At your request, I will speak to my client about a new date for the closing, in view of the fact that December 31 is a very busy time of the year. We do look forward to closing on this real estate transaction, however. EXHIBIT Gl~nstopher 1. l{estak, iz, sq. December 17, 2001 Page 2 Thank you. Sincerely yours, TRANSMISSION OK TX/RX NO CONNECTION TEL SUBADDRESS CONNECTION ID ST. TIME USAGE T PGS. SENT RESULT 4145 6339143pp411601 12/19 17:31 01'32 2 OK ~.~4,~, PA 17101 (21~) .?-,58-9.:300 laACSrmU~ (~17) 2B8-932.6 cm owM~ ~ Po~rl~l. LTi~a. ul-rf~iN, eOM I~ROM: PHONE: SUBJECT: C. Crrainger Bowman (717) 238-9300 DATE: CLIENT 1VIATTER: December 19, 2001 4116-01 TOTAL NUMBER OF PAGES INCLUDING THIS PAGE: . PLEASE DELIVER AS SOON AS POSSIBLE TO: RECIPIENT COMPANY FAX NO. PHONE NO. Chris Restak 633-9143 637-5188 If you do not receive all the pages, please call (717) 238-9300. As per our telephone conversation, attached please find thc ACORD form of certificate of liabihty insurance, wlxich evidences that Mrs. Grindley-Griffith is an additional insured. At your request, I asked that this ACORI) form be issued to my attention so that I could send it to you to satisfy your client that she was identified as a certificate holder. Please let me know if you have any questions about it. Thank you. Grainger ,~ I/XHIBIT ACO ;Zt CERTIFICATE OF LIABILITY INSURANCI oo _" PRODUCER Good Dr, P 0 Box 642S Lancaste= PA 1760T Phone:717-397-7B31 Fax:717~397-2296 IP.0. BOx 358 Mount Joy PA 175~2-0358 COVE~GES A X Q370153558 DATE 12/:Lg/01 THIS CERTIFICATE IS ISSUED AS A MA'ri'ER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOEE NOT AMEND, EX'ri;ND OR ALTER THE COVERAGB ,N=FORDED BY THE POLICIES BELOW. INEURF. RS AFFORDING COVERAGE 01/01/01 01/01/02 Q010140642 01/01/01 01/01/02 A EM ~t Oy~Rs' LIA[~ILITy Q881600416 04/16/01 04/1E/02 EACH 0CCU~NC[ $ 1, 000,000 F~ O.~,MA~ ~Any~ nra; S I, 000~L_000 ~IN~ SINGLE LIMIT (~ =:~d~.~) s 500,000 BODILY INJURY (pee CERTIFICATE HOLDER 5010 E. Trlndl~ Road, 2O0 ACORD 25~ (7/97) OANCELLA]ION ©ACORD CORPORATION 1988 CHRISTOPtlER RESTAK December 27, 2001 By Facsimile: (717) 238-9325 Original by mail. Grainger Bowman, Esq. Powell, Trachtman, Logan, PC 114 North Second Street Harrisburg, PA 17101 RE: Beverly Grindley Griffith and Oakwood Custom Homes Dear Grainger: Subsequent to our joint p_hone consultation, with Peter Russo in attendance, this past Friday, I have had an opportunity to speak with both Peter as well as Beverly Grindley. It seems apparent, at this stage, that Beverly will not be in attendance at Peter Russo's office, on Monday, December 31, 2001, as outlined in your proposed Mediation Agreement (Mutual letter of Understanding) that was drafted on November 14, 2001, as part of an attempt to resolve the issues that existed between Beverly and your client, Oakwood Custom Homes, concerning the improvements at 36 Watson Drive. Beverly has determined that the Mutual letter of Understanding does not address her concerns, nor her financial exposure in this ease and she is adamant in her contention that she was to receive a minimum of $16,100.00, net litigation expenses, including attorney's and mediation fees, as part of the settlement. I am taking the time to inform you of her position so as to eliminate the necessity of traveling to Peter Russo's office, on Monday, when she will not be there to assign any of her interest in the property to your client. If you have any questions, concerning this matter, please feel free to contact me. I am also copying Peter Russo with this letter, so as to apprise him of a situation for which I believe he is already aware. Cc: Beverly Grindley (Griffith) Peter RusSo, Esq. EXHIBIT Remarks: Number of Pages: Grainger Bowman, Esq. Powell, Trachtrnan, Logan, PC 114 North Second Street Harrisburg, PA 17101 RE: Beverly Grindley Griffith and Oakwood Custom Homes Dear Orainger: I have attached a copy of the letter that was mailed, earlier today, regarding Beverly Griffith's position regarding the proposed settlement meeting, scheduled for Peter P. usso's office, on December 31, 2001, at 10:00 am. Beverly will not be attending as she would not be able to provide a clear transfer of the property at th~s point in time and she does not recognize the conditious, as stated in the Memo of Understanding, to be binding upon her future performance in this matter. I will 'copy Peter Russo with this t~.csimile, so as to avoid any misunderstanding, a~d so that it wilt be certain that no meeting, at least as it relates to a property settlement closing, should (or will) take place on Monday. If you have any questions 1 am happy to speak with you about this matter. Yours truly, Chris Restak Cc: Peter Russo, Esq. EXHIBIT CHRISTOPHEI~ RESTAK December 27, 2001 By Facsimile: (717) 238~9325 Original by mail. Grainger Bowman, Esq. Powell, Traehtman, Logan, PC 114 North Second Street Harrisburg, PA 17101 RE: Beverly Grindley Griffith and Oakwood Custona Homes Dear Grainge~: Subsequent to our joint phone consultation, with Peter Russo in attendance, this past Friday, I have had an opportunity to speak with both Peter as well as Beverly Grindley. It seems apparent, at this stage, that Beverly will not be in attendance at Peter Russo's office, on Monday, December 31, 2001, as outlined in your proposed 'Mediation Agreement (Mutual letter of Understanding) that was drafted on November 14, 2001, as part of an attempt to resolve the issues that existed between Beverly and your client, Oakwood Custom ~FIomes, concerning the improvements at 36 Watson Drive. Beverly has determined that the Mutual letter of Understanding does not address her concerns, nor her financial exposure in this ease and she is' ~datnant in her contention that she was to receive a minimum orS16,100.00, net litigation expenses, including attorney's mad mediation fees, as pa:ct of the settlement. I am raking the time to inform you of her position so as to eliminate the necessity of traveling to Peter Russo's office, on Monday, when she will not be there to assign any of her interest in the property to your cliem. If you have any questions, concerning this matter, please feel free to contact me. I am also co~pying Peter Russo with this letter, so as to apprise him of a situation for which I believe he is already aware. Cc: Beverly Ca'indtey (Griffith) Peter P~usso, Esq. POX LL, TRACHTMAN, LOGAN, C BOWMAN & LOMBARDO ! 14 NOR'Ell ~I~CONI) STRI!I!I (717) 238-9300 F^csl~ttl.l~ (717) 238-9325 December 28, 2001 RLE, Beverly Grindley-Griffith 58 South Corporation Newville PA 17241 Christopher T. Restak, Esq. VIA FAX AND U.S. MAIL 213 Carlisle Street Hanover PA 17331 Re: Oakwood Custom Homes v. Beverly A. Grindlev NOTICE OF YOUR FAILURE TO PERFORM AT REAL ESTATE CLOSING FOR 36 WATSON DRIVE SCHEDULED FOR DECEMBER 31, 2001 Dear Ms. Grindley Griffith and Mr. Restak: On November 15, 2001 Ms. Grindley executed a settlement agreement in the form ora Memorandum of Understanding, resolving all matters with Oakwood Custom Homes. Pursuant to paragraph 5 of the Agreement, the real estate closing was scheduled to take place on or before December 31, 2001. On December 17, 2001 I sent a letter to you and to your counsel notifying you that closing for the real estate would take place on December 31, 2001 at 10:00 AM in the law offices of Peter Russo, Esq. On December 24, l spoke by telephone with Christopher Restak, your currently retained attorney, and Peter Russo, Esq., and advised that Oakwood intended to appear at real estate closing on December 3 i, and perform the terms of Memorandum of Understar~ding. Today, Mr. Restak has informed me by letter that you will not perform the terms of the EXHIBIT December 28,2001 Page 2 Memorandum of Understanding and nor will you convey the real estate at the scheduled closing. I informed Mr. Restak by phone, and am informing both of you by this letter, that Oakwood considers Ms. Grindley's refusal to perform the Memorandum of Understanding a material breach of the terms of the Memorandum of Understanding. We consider your notice of refusal to perform closing will make the closing on December 31 entirely unnecessary. Therefore, Oakwood will not appear for closing on December 31, unless we hear from you otherwise. If we hear from you, then we wiJl probably have to re-schedule for another date and time. Oakwood is ready, willing and able to perform the temps of the Memorandum of Understanding. Oakwood intends to seek specific perfo.rmance of the Memorandum of Understanding with the Court of Common Pleas. cc: Peter Russo, Esq. VIA FAX AND U.S. MAIL Identical copy of this letter is being sent to: Beverly A. Grindley Griffith P.O. Box 1394 Carlisle PA 17013-6394 Sincerely yours, C. Grainge~,~Jowman Attorney for Oakwood Custom Homes, Inc. *** TX REPORT *** TRANSMISSION OK TX/RX NO 4158 CONNECTION TEL 6339143pp411601 SUBADDRESS CONNECTION Il) ST. TIME 12/28 16:22 USAGE T 02'05 PGS. SENT 3 RESULT OK POW~LL, Tr~C~, LOGAN, BOW/vlAN & LOMBARDO 114 Nozth Se~,l Sheet I'l~,,-,i~Im~, PA 17101 (717) 238-/:)300 F,~ C/17) 238-9325 c B O W/,iAN@ PowE LLTP, AOHTM,'~. ¢oM FROM: PBO~: SUBJECT: C. Grainger Bowman DATE: (717) 238-9300 CLIENT MA'Iq'ER: Grir;dley / Oakwood Custom Homes, Inc. December 28, 2001 4116-01 TOTAL NUMBER OF PAGES ENCLUDING THIS PAGE: . PLEASE DELIVER AS SOON AS POSSIBLE TO: RECIlqENT Chris Restak COMi~ANY FAX NO, 633k9143 If you do not receive all t_he pages, please call (717) 238-9300. PI-lONE No. 637-5188 Notice o £ ~reach [opy to Peter Russo LL, TRACHTMAN, LOGAN, C BOWMAN & LOMBARDO 114 NORTll SECOND HARRIStlIIRG, PA 17101 (717} Z38-q300 F^CS:~IILI~ (7171 238-9325 December 28,2001 !RLE, Peter Russo, Esq. 5010 E. Trindle Road, Suite 200 Mechanicsburg, PA 17050 Re: Oakwood Custom Homes v. Beverly A. Grindlev Dear Peter: This will confirm that Ms. Grindley (through Chris Restak) has advised Oakwood (through me) that she will not be attending real estate closing on December 31, 2001 in your office to perform the terms of the Memorandum of Understanding, and to convey the real estate at 36 Watson Drive to Oakwood. For this reason only, Oakwood will not be attending the closing either, but Oakwood does stand ready, willing and able to perform the terms of the Memorandum of Understanding when Ms. Grindley changes her mind. In the meantime, we would like to count on your ability to provide the attorney's certificate of clear title, as per the Memorandum o£Understanding, if the matter arrives at a closing amicably. Consequently, Oakwood will seek specific performance of the Memorandum of Understanding in the Court of Common Pleas. cc: Christopher Restak, Esq. Si~)cerelyr yours, ,, . .. Grainger'~owman · "~ EXHIBIT VERIFICATION I verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements made are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. ~. Grainger Bowntag, Esq. Attorney for Oakwood Custom Homes, Inc. Oakwood Custom Homes, Inc., Plaintiff Beverly A. Grindley-Griffith Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 Notice to Defend YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN COUNTERCLAIM WITHIN TWENTY (20) DAYS OF SERVICE UPON YOU OR A DEFAULT JUDGMENT MAY BE ENTERED 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 CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. You should take this paper to your lawyer at once. If you do not have or know a lawyer, then you should 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 AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defendrse de las quejas expuestax en las paginas slguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia esrita en persona o por abogado y presentar en la Corte por escrito sus defenses o sus objections a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demando o por cualquier otra queja o compensacion reclamados pot el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTE DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABODAGO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Oakwood Custom Homes, Inc., Plaintiff Beverly A. Grindley-Griffith Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 DEFENDANT'S ANSWER, NEW MATTER AND COUNTERCLAIM COMES NOW, Beverley A. Grindley-Griffin, by and through her attorney, Christopher Restak, to file an Answer, New Matter and Counterclaim, in the above captioned matter. Defendant's filing comes pursuant to a Complaint, entered by the Plaintiff, Oakwood Custom Homes, Incorporated, on January 16, 2002. Defendant's Answer follows: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. Admitted upon information and belief. 5. Admitted upon information and belief. 6. Admitted, in part. Defendant admits to signing a document titled Memorandum of Understanding (the aforementioned "agreement" that Plaintiff notes in their Complaint; hereinafter referred to as "the document") Defendant denies all other aversions, by Plaintiff, and avers that this understanding was signed upon the belief that this document was to be subsequently redrafted, for final review and execution. Defendant contends that the informal appearanbe of the document and. the latent ambiguity contained in that same document, rendered the signing as simply a good faith commitment to seek a permanent settlement of the issues, once the final agreement was prepared for execution. It is Defendant's contention that she is not bound to the confidentiality component of the document since a strict reading of that component would render her unable to defend against the mortgage foreclosure action that was subsequently initiated against her property (for failure of the Plaintiff to perform under a pre-existing contract for construction). The foreclosure action is docketed as 01-1586 and it has been filed in the Cumberland County Court of Common Pleas. 7. Admitted. The terms of the memo speak for themselves. 8. Admitted. The terms of the memo speak for themselves. 9. Admitted. 10. Admitted. Defendant's failure to perform, under the terms of the document, was excused by the intervening, amended foreclosure action that postdated the signing of the document. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted as to the sending of the letter. Denied as to the claim of breach by the Plaintiff, against Defendant. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. 19. Admitted. 20. Admitted. 21. Admitted. 22. Denied. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. 23. Admitted. 24. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of this averment. 25. Plaintiff's allegation is a conclusion of law to which no responsive pleading is required. 26. Admitted. 27. Admitted. 28. Admitted. Wherefore, defendant, Beverly Grindley-Griffith, requests this Honorable Court to enter judgment in its favor and against Plaintiffs. NEW MATTER 29. Defendant hereby incorporates paragraphs I through 28 of its Answer as more though more fully set forth herein; 30. Plaintiff's claim may be barred by the doctrine 0f"unclean han'ds." It is as a direct cause of Plaintiff's failure to perform under a construction contract, executed between plaintiff and defendant on February 15, 1998, that mortgagee has initiated a foreclosure action against defendant. 31. Plaintiff's claim should also be barred by the doctrine of"unjust enrichment." If the Court were to award specific performance of the proffered document, as Plaintiffhas requested, Plaintiff would be unjustly enriched. Defendant, due to Plaintiff's breach of the underlying construction contract, currently faces a foreclosure action, initiated by its mortgagee. Basis of the foreclosure action is that portion of Defendant's mortgage agreement requiring the completion of the improvements by November 10~ 1999. A copy of the Construction Agreement is attached and incorporated, by reference, as (Exhibit A). Since Plaintiff was singularly responsible for Defendant's failure to satisfy the construction completion provision, Plaintiff should not be rewarded for their own lack of performance under their own contract between Oakwood Custom Homes, Incorporated and Beverly Grindley. 32. Plaintiffshould be required to compensate Defendant for any losses, direct and consequential, suffered as a consequence of Plaintiff's failure to perform under the construction contract. 33. Plaintiff's claim for .... "such other and further relief that the Court deems appropriate..." lacks specificity and fails to put Defendant on notice as to the true nature of the claim being made. 34. Plaintiff's claim for attorneys fees is unsubstantiated and without basis, in either contract or equity. WHEREFORE, Defendant requests that this Honorable Court dismiss Plaintiff's Complaint and, more specifically, dismiss Plaintiff's request for Specific Performance. COUNTERCLAIM 35. Defendant hereby incorporates paragraphs 1 through 34 of its Answer and New Matter as though more fully set forth herein. 36. Defendant is currently defending her property, the subject of Plaintiff's claim for Specific Performance, against a foreclosure proceeding, initiated in this Court and docketed at 01-1586. Basis of mortgagor's claim for foreclosure is Defendant's inability to complete construction of a single-family residence. Plaintiff has responsible for the construction activities, as per the terms and conditions ora written contract, hereinafter referred to as the Construction Agreement, a copy of which is attached and incorporated, by reference, as (Exhibit A). 37. As per the terms of the written Construction Agreement, Paragraph 13. Time of Performance, Plaintiff was to have finished the house within 120 days from the date of the execution of the contract (Feb. 15, 1999). 38. Plaintiff failed to complete the wo[k, as contemplated under the Construction Agreement, and abandoned the project, 39. Plaintiff has allowed the improvements to deteriorate to a condition whereby Defendant's own property insurance company cancelled insurance, due to "willful or negligent acts or omissions by the insured." Specific conditions cited included, "foundation problem, due to foundation settling." Defendant was directed to "properly install footers below frost line: and water proof basement walls." A copy of the Notice of Cancellation or Refusal to Renew is attached and incorporated, by reference, as (Exhibit B). 40. Defendant was required to seek outside consultant(s) in order to evaluate the current state of improvements that Plaintiff had completed, under the Construction Agreement, and in order to gain an estimate of what it would cost to properly complete the residence, as originally contemplated under the Agreement. A copy of Defendant's estimate is attached and incorporated, by reference, as (Exhibit C). 41. According to the estimate, Page 3, Paragraph 1., the contractor, McCorkel Construction Services, Incorporated, the existing home will have to be demolished, and properly rebuilt. The cost of the demolition, and reconstruction, is estimated at $136,180.00, which exceeds the cost of the original Construction Agreement between the Plaintiff and the Defendant. 42. Plaintiff has breached their contract (Construction Agreement) and Defendant has a good faith basis to seek adequate compensation for her damages, which are a direct, and foreseeable result of Plaintiff's breach. 43. Defendant has incurred consequential damages, in the form of additional interest charges, and legal fees, in defending herself in the foreclosure proceedings that have been initiated against her. 44. The basis df the forecl0~ure'action is the Defendant's inability to ~aiisfy the ' Construction/Permanent Rider which mandates that the construction of the residence "shall be completed on or before 11/10/99." A copy of Defendant's Foreclosure Complaint is attached and incorporated, by reference, as (Exhibit D). 45. Plaintiff's failure to complete the construction, in a timely fashion, was the proximate cause of Defendant's current foreclosure action. 46. Defendant is entitled to a refund of monies paid to Plaintiff, on deposit, as well as damages directly related to Plaintiff's alleged negligence in completing improvements under the Construction Agreement. WHEREFORE, Defendant requests that this Honorable Court enter judgment in its favor and against Plaintiff, Oakwood Custom Homes, Incorporated, in the following amounts: A. i. $ 6,048.00 representing the interest on Defendant's mortgage that was incurred between November 1999 and November 2001. ii. $ 136,180.00 representing the estimated costs to remove and rebuild the single-family residence that was the subject of the original Construction Agreement. · iii. $1,000.00 representing the amount g. iven to Oakwood Custom Homes, Inc., as a good faith deposit on or about 2-15-99. iv. $ 2,000.00 representing monies given to Oakwood Custom Homes, lnc., for future heating system, B. Award judgment against Plaintiff, Oakwood Custom Homes, Inc., in favor of Defendant, for reasonable costs of this action. C. Award Defendants reasonable attorneys fees for the costs associated with case No. 01-1586, as initiated by National City Mortgage, against Defendant. 213 Carlisle Street Hanover, PA 17331 (717) 637-5188 PA Supreme Ct. I.D. # 81514 Attorney for Defendant Date: February 8, 2002 VERIFICATION I, the undersigned, Beverly A. Grindley, hereby certify that I am authorized to verify this pleading, on my own behalf. I hereby affirm that the facts contained in the foregoing Answer and New Matter and Counterclaim are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Dated: 2 ' t>l.o - c> 2 By~~ Oakwood Custom Homes, Inc., Plaintiff Beverly A. Grindley-Griftith Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY EQUITY DOCKET NO. 02-245 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Answer, New Matter, and Counterclaim upon, C, Grainger Bowman of Powell, Trachtman, Logan. Carle, Bowman & Lombardo, located at 114 North Second Street, Harrisburg, Pennsylvania 17101, by United States mail, first class, postage prepaid, on February 7, 2002. Esq. 213 Carlisle Street · Hanover, PA 17331. (717) 637-5188 PA. Supreme Court I.D.# 81584 Attorney for Defendant EXHIBIT A rev 10~98 DNSTRUCTION AGREEMENT AGREEMENT made this by and between OAKWOOD CUSTOM HOMES, INC. ~aving an office at 422 W. ~ain St, Mt Joy, PA 17552 (hereinafter "Contractor") and (hereinafter~'Own~", whether ~ingular or plural) of ~I ~j ~0~ 1. AG~NT TO P~C~SE: The Contractor hereby a~rees to c~nst~ct.ahouse (the "Home") ~o~ as a %~[~ ~e~ ., s~stantially con~o~inq the attached plans and speczficat~ons (the "Plans and Specifications"), and the O~ers agree to purchase the Home to be erected on the premises (the"Lot") owned, e~itably o~ed or intended to be o~e~ ~y O~er(s) 2. PRICE: . . (a). The Pr~?e for ~e Home is $~6~ (~e Contract Price"), and ~ncludes allowances fo~ estimated lot improvements noted in $3 a-f and ~5 d, based on info~ation provided by 0~ers(s), s~ject to additions and deductions by chanqe orders. All chanqe orders must be agreed to by Contractor in writing and paid in advance at the time of execution. The Contract Price includes any options specified in the "Options" section. 3. NOT INCLUDED 'IN CO~CT PRICE: Due to the va~ing cost because of lot and local conditions, we do not include ~e cost of site work and lot improvements in the Price listed in paraqraph 2 (a) of this Aqreement. However, the Contractor shall act on behalf of the O~er(s) and enqage third pa~ies as s~contractors of the ~er(s) to perfo~ site work and lot improvements. ~nds necessa~ to rei~urse ~e Contractor for bills paid to ~ird pa~ies, must be made available throuqh the disburs~ent schedule of draws on ~e Home. If the O~er(s)'s mo~qage is not large enouqh to pay the Contract Price and the cost of the lot improvements, funds to cover the difference must be escrowed ~der ta~s payable to Contractor prior to co~encement of const~ction and released to the Contractor when re~ested. The followinq amounts are estimates of the actual cost. The O~er is responsible for rei~ursinq the contractor for the full amount of the actual cost of the lot improvements as shown on the invoice of the s~contractor. 4. OWNER(S) MUST PROVIDE TO CONTRACTOR: (a). Excavation, backfill and rough grade fine grade and seed'~the lot with existing soils ....... $ ~¢. . ' *A~y recf/ired blasting is never included. (b). Install septic system .................. $~-~1~- (c). Install shale or stone driveway.(10')..$ (d) Storm water, fill in or out, topsoil in, ~idewalks, stumps, debris, etc .... Permits/Inspections $ :Othe=- $ The O%n~er(s), at their cost, must take the following actions and provide the Contractor with the following permits or documents (if applicable to the constr~ction of the ~ome) before the Contractor is required to commence construction: i/We have read and fully understand an~__agree to the 'te~ms and conditions contained herein. ~.~ .  . In_tn? eye99 tha~ the 9ppraised va%ue of the subject o~e =o me m~alt (along with the lot.at is intended to be ualt updn) is less than the sale price, the ContraCtor, at his sole option, may elect to negotiate the price with Owner o~ to reduce the purchase prige.to the a~praised value with all other terms and conditions remaaning unchanged. c. The Contractor may extend settlement date, at ~pn~a?tor's sole option, for a period of up To 300 days, ar 1= 19 necessary (in Contractor's sole opinion) for the c?mpletlon of construction, or coordination of financing with Lender(s) or Governmental agency. d. As part of this agreement, Owner agree to cooperation fully with contractor and Lender in obtaining financing approval. Such cooperation includes but is not %imite~ to immediately providing all required information, Incurring NO_ApD~TIONAL DEBT!.pa¥ing 911 present payments on time, ano melng responsible in retaining present employment. Owner understands that failure to cooperate as herein defined will be a default under this agreement and will cause Owner to forfeit his/her de?osit moneys including but not limited to the note described in this agreement. e. Owner agrees to accept FmHA-GRH, FHA, VA, PHFA, LP, Community. Home Buyer, ~onventional or other alternative 10an type from that originally attempted if Owner gualifies for that alternative loan type based upon Information provided to Contractor and/or Lender and does not qualify for or funding is not readily available for the loan type originally attempted. In the event that the loan type changes, Owner understands and agrees that the mortgage amount, monthly payment, and closing costs may change. Owner agrees that they will accept those changes and execute promptly all necessary docu~.ent~ to effect those changes,provided that the Lender is willing to make the 10an based on those changes. f. Contractor agrees to pay up.to $ ~i~ of Owner's allowable closing costs which includes _ and which is subject to the Lender's par~eters for the loan type and will not exceed 3% on conventional and 6% on GR/{/VA/FHA. g. Owner has reviewed and received an estimate of closing costs. h. Owner and Contractor agree that in the event of Owner,s financing looking unfavorable in Contractor's sole opinion. Contractor, at Contractor's sole option may terminate this agreement on 24 hours verbal notice after which this agreement shall be null and void and all deposit monies returned to Owner so long as Contractors determination isa. not a result.of .a default by the Owner. i. If the appraisal exceed's the sale price', Owner agree's =o permit lender, if the loan program allows it, to finance up to the appraised amount for the purpose of ~inancing some closing costs. ]. Should it be necessary to consolidate or refinance any ~x%sti~g ~ebt t? quali~y for a.mor~.gage for this purchase, an~ a len=er'maxes sucnconsOl~dation, loan or refinancing ~vailable'on terms that are acceptable to mortgage lender for mortgage approval purposes, Owner hereby agree's to accept such a~d fully with the structuring, coopera .re documentation, collateralizatlon with any eligible assets, ~nd pla.cement of su. ch consolidation and/or refinance loan. · In =ne event this transaction requires the acquisition· of a gift by Owner for.closin, g costs a. nd/or down payment, Owner warrants the avallabillty of said gift. I/We have read and fully understanc~d a~ree to the terms and conditions contained, herein. ~<~- (a). Close on construction financing with lender; (b). Provide a certificate of attorney or title agent of clean title to Lot, recording of mortgage and deed of trust, and recording of waiver of mechanic's liens (where applicable). (c). Provide the Contractor with payout schedule, from the lender, acceptable to the Contractor, showing what funds will be released when. The total of the draws must be equal to the Contract Price and the estimates for lot improvements. If the draws are not sufficient to pay the Contract Price and the cost of lot improvements, the Owner(s) must escrow the additional funds required, which shall be paid by the Contractor as draws on the construction of the Home before the lending institution funds are used; (d). The Owner(s) shall purchase fire and extended coverage insurance and provide the Contractor with a copy of the policy, which shall include "all risk" insurance for physical loss and damage including, without duplication of coverage, theft, vandalism and malicious mischief. The insurance shall be for the full insurable value of the construction of the Home and shall insure the Owner(s) and the Contractor, as their respective interests miqht appear; (e). Select colors and have a pre-building discussion with the Contractor upon 5 days notice from Contractor that it is ready.. <f) · 5. CONSTRUCTION PROCESS: (a). Owner understands and agrees that each home is custom built on an individual basis and that the subject home may vary sliqhtly from the plans or model shown including variations in the size of rooms, doors, and windows locations, etc. However, Contractor agrees that the subject home will be built similar to the shown plan, specifications and/or model. The Contractor's Price is based on construction on a flat lot with a set number of blocks, and in the event any site work is "included" (as indicated above), it is based on the most economical sitting of the house to provide for the exclusive use of existing soils and fills and the most economical driveway configuration. The cost of additional block, structural steel, and larger footer and block or fill or blasting or longer than necessary driveway due to conditions of the Lot will be added to the Purchase Price. .... (b) Owner agrees to make all change orders and all selections within 48 hours of notice from Contra.ctor and Contractor. shall have the right to'approve same. In the event any.selections are not approved by Contractor, Owner agrees to repick within 48 hours. In the event Owner does not make selections within 48 hours, Contractor may choose selections on behalf of Owner and Owner agree's to accept such. as if they had made them, ~c) Owner agrees to. conduct a walk through of the home with Contractor or C0ntractorls representative upon 48 hours verbal notice during which a final repair list will be made after which all items not noted will be dealt with in accordance to the terms of the warranty. Any unnoted floor~counter~wall~tub damage and other types of damage defects will be~ deemed caused by Owner if not noted at this walk through. I/We have read, and fully understand~d agree to the terms and conditions contained herein. ' ~<~.£~ . Failure to attend the walk through shall be considered approval~gnd.unconditional acceptance by Owner of the property'ln it's then condition subject to the terms of the warranty. (d) In the event the home being purchased requires an on site well the allowance for such is $2500 inclusive of tie in and any desired or lender required treatment system. (e) Owner and Contractor hereby agree that after the start of construction any change order and it's cSar~e must be agreed to by both parties. In the event there is no agreement the change will not be made and the original ter~s will apply. There will be a $250 fee for any such changes in addition to the actual change order cost. This is to compensate Oakwood Custom Homes, Inc.'s overhead in accommodating changes. This applies to deletions as well as additions and applies each time there is a change. 6. RESPONSIBILITY ON OWNER(S): Except for the parties engaged by the Contractor on behalf of the owner(s) under Section 3 to provide lot improvements, no other party (including the Owner(s) shall be engaged by the Owner(s) to perform work on the Home or lot unless the Party to perform the work enters into a written agreement with the contractor and the Owner(s) regarding scheduling of work, payment and other matters on terms satisfactory to the Contractor. Any Party's engaged on behalf of Owner, are subcontractors of the Owner(s). The Contractor will not be liable for the work of the Owner(s) or Owner(s) 's subcontractors, including any delay in construction resulting from such work. Owner(s) shall reimburse the Contractor for any costs to the Contractor caused by the actions of Owner(s) or Owner(s) 's Subcontractor and shall indemnify and hold harmless Contractor fro any claims, da~a~es, liabilities or cost (including attorney fees) arising out of the action of the Owner(s) or Owner(s) 's Subcontractors. 7. BASEMENT: All grading shall be done to divert water away from the Home during construction, as well as after the Home is completed. Block by it's very nature is porous and Contractor does not warrant a dry basement. 8. DEPOSIT: Upon the signing of the Construction Agreement, the Own~r.(s). shall pay to the Contractor a good faith deposit of $-~/C~?k~3 TO BE APPLIED AGAINST THE FINAL PAYMENT OF THE CONTRACT PRICE. The Owner(s) right to the deposit will be terminated if the Owner(s) default in any of their obligations under this Construction Agreement and the Contractor shall have the right to 'retain the deposit, which shall be in addition to any other rights or remedies the contractor may have as a result of a default by the Owner(S!. An additional deposit in the form of a NIB Note in the amount of $10,000.00 is made a part of this agreement. ~. FINANCING TERMS AND CONTINGENCY:' · ' This agreement is contingent upon approyal by lender(s) ~ adequate financing, to be applied for within 7 days of the date of this agreement, to close this transaction at rates and terms that the Owner gualifies for based on the information provided to and relied upon by Contractor in ~ntering into this agreement. In the event adequate' financing cannot be obtained with the full cooperation of Owner, all deposit monies shall be returned to Owner. I/We have read and fully understand j%n~d agree to the terms and conditions contained herein. .' ~ 1. Owner and Conu~actor agree, that the ten ~housand dollar note from Owner to Contractor, as security for Ow~er's performance of this agreement, will be held by Contractor as a deposit. It will not be held by any agent for Contractor or treated as an escrow. In the event of default by Owner, Contractor will give to Owner twenty four hours verbal notice to cure the default. In the event that the default is not cured, the Contractor may declare the note due and payable and take l~gal action to collect upon it. 10. CON%~RACTOR'S PAYI~ENT SCHEDULE: (a). Payments to the Contractor shall be made within 5 days of request by the Contractor and the validity of the draw rec,.est will be determined based solely on the lenders ~nspection of work in place substantially in conformance with the plans and specs. Unless otherwise agreed in advance in writing by Contractor, the 1st DRAW consisting of 20% OF THE TOTAL shall be paid when the Excavation is complete, Footer poured and Foundation Complete; 2ND DRAW consisting of 20% OF THE TOTAL shall be paid when the Rough Framing is complete and the windows and doors are installed~ 3RD DRAW consisting of 20% OF THE TOTAL shall be paid when the Roof is Shingled and the Electric, Heat and Plumbing are Roughed-In; 4TH DRAW consisting of 20% OF THE TOTAL shall be paid when the Exterior Wall Covering, Insulation and Drywall are complete; 5TH DRAW consisting of 10% OF THE TOTAL shall be paid when the Vinyl Flooring, Cabinets, Electric, Heat and Plumbing are complete; 6TH DRAW consisting of the Total Balance Due the Contractor shall be paid when the Carpet has been installed. Any draw requested, except the last draw, that work is incomplete due to back order, weather conditions, or circumstances beyond the control of the Contractor shall be released providing an additional amount of work of an equal dollar value is in place. If work remains due to back order, weather conditions or circumstances beyond the control of the Contractor when the last draw is due an amount mutually agreed to by the Contractor and Owner, no greater than the cost value of the incomplete work, can be withheld from the total due. (b). Payment to the Contractor for cash sales, without Owner(s) funds being placed in escrow, shall be made as follows: one half (1/2) upon the signing of this Agreement; one fourth (1/4) when Home is under roof; one fourth (1/4) when drywall is installed; and the balance, if any, at settlement concurrently with transfer of title and possession of the Home from Contractor to Owner(s). Payments to Contractor for cash sales with escrowed funds shall be made in accordance with the draw schedule found in section 10.(a) of this agreement. (c). Payment to the Contractor shall be by FedWire to the ~ank designated ~y.the Contractor unless otherwise agreed ~ln advance in writing ~y Contractor~ I'n the event contractor has agreed ~n advance to accept disbursement by check from lender, if lender issues said check in the name of both Owner and Contractor, Owner hereby gives DURABLE POWER OF ATTORNEY FOR THE PURPOSE OF SIGNING DRAW CHECKS TO Contractor: I/We have read and fully understand and agree to the terms and conditions contained herein. , have made, constituted and appointed, and by these presents do make, constitute and appoint Douglas L. Zook in his capacity as President of Oakwood Custom Homes, Inc to be MY TRUE AND LAWFUL ATTORNEY, for me, and in my name, place and stead, to act in relation to signing my name, and applying such, to any draw/settlement check naming myself, and Oakwood (Custom Homes, Inc as co-payees. A~d I hereby declare that any act or thing lawfully done hereunder by my said attorney shall be binding on myself, and my heirs, legal and personal representatives and assigns, and in case of my death, my said attorney shall render a statement to my personal representative/s for whatsoever has been done pursuant hereto. This Power of Attorney shall not be affected by my subsequent disability or incapacity. The singular as used herein shall be interpreted to include the plural, even though not written in the plural, whenever and wherever the context requires. IN WITNESS WHEREOF, I have hereunto set my hand and seal below to this Specific Power of Attorney. 11. OCCUPANCY: Owner(s) shall be given title to and possession of the Home upon completion of construction and the payment in full of all amounts owed to Contractor. Occupancy of the Home by Owner(s), without written consent oft the Contractor, prior to the payment in full of the Contract Price and all other amounts owed to contractor by Owner(s), shall be deemed to be acceptance by Owner(s) of the Home in its then "as is" condition and Contractor shall be released from its obligation to complete construction and all other obligation's hereunder. In such event, the Owner(s) shall immediately pay to Contractor the Contract Price and any other amounts cwed under this Agreement and, in addition, shall pay to Contractor, as damages, the amount of $100.00 per day from the date of occupancy to the date of payment to Contractor in full of all amounts owed. 12. CONTRACTOR'S REI~EDIES: In the event of a default by the Owner(s) in the payment of any amounts due to Contractor or a breach of any other provision of this Agreement, Owner(s) do hereby irrevocably authorize and empower any attorney or any court of record of Pennsylvania Or elsewhere to appear for and 'to confess judgment against Owner(s), without notice to the Owner(s), for the Contract Price and all other amounts owed to Contractor, together with interest at ~he rate of eighteen percent (18%), contractor's cost of suit, and reasonable attorney's fee. Owner{s) waive and release all errors of defeats of Contractor ~n confessing judgment if the ~Wner(s) fail..to timely pay or otherwise breach this greement. I/We have read and fully understand~ and~ to the terms and conditions contained herein. ~ J ~.~. agree. Owner(s) also waive any benefits to Owner(s) under any present pr future laws exempting any real or personal property of Owner(s), or proceeds there from, from attachment, levy or sales as a result of Contractor obtaining a judgment against owner(s) for the failure of the Owner(s) to make any payments to the Contractor as required under this Agreement or otherwise breaching this Agreement or laws which provide for stay of execution, exemption from civil process, or extension 6f time for payment. The foregoing remedy of Contractor by confession of judgment shall be in addition to any or all other remedies of Contractor, at law or in equity, to enforce its rights under this Agreement. The pursuit of any remedy by the Contractor shall not preclude the Contractor from pursuing, in any order or at any time, any of all other remedies that are available to Contractor. 13. TIME OF PERFORMANCE: The Work to be performed under this Contract is intended to be commenced within about fifteen (15) days after the date Owner has fulfilled all obligations required by Paragraph 4 of this Contract, weather permitting, and except as otherwise provided or permitted by the Contract, is intended to be substantially completed within about 120 days. The Date of Substantial Completion of the Contract Work is the date when construction is sufficiently completed in accordance with the Plan and Specifications so the Owner can occupy the construction work. Warranties called for by this Agreement shall commence on the Date of Substantial Completion of the construction work. If the Contractor is delayed at any time in the mrocress of the construction work by any act, failure or ~egiect of the Owner or by changes ordered or by labor disputes, fire, delay in transportation, unanticipated circumstances, adverse weather conditions, casualties, or any causes beyond the contractor's control, or a delay authorized by the Owner, then the Date for Substantial Completion shall be extended for the period of such delay plus 15 days. Any delay caused by Owner(s), their agents, or Owner(s) 's Subcontractors for over fifteen (5) days, without the written consent of Contractor, shall constitute a breach of this Agreement. 14. WARRANTY: Service work following settlement will be performed by Contractor solely in accordance with the limited Warranty which as presented to the Owner(s) prior to or contemporaneously with the signing of this Agreement .and which shall be a part of this Agreement. There are no other warranties,'representations, or policies of Contractor applicable to the Home or this Agreement. The Owner(s) acknowledge that the limited Warranty does not apply to any work that is not the responsibility of the Contractor under thi~ Agreement, incl~d%ng.~ny.ltems of. work that are 9o~ ~lthin. the Plans Speclfl'catlons and/or are the responsibility of Owner(s) ~ubcontractors. ' 15. LOCATION OF HOME ON LOT: It is the responsibility of the Owner(s) to have a survey of the Lot or to otherwise ~eter~ine the location of the Lot boundaries, rights-of-way, easements, required roadway access locations and any other limitations on placement of the Home on the Lot. I/We have read and fully understand and agree to the terms and conditions contained herein. '--~ ~ The Contractor will locate the Home on the Lot solely based on-the infor~nation ~rovided by the Owner(s), and Contract6r is not responsible for the improper placement of the Home on the Lot. 16. PRESENCE OF RADON GAS: Radon gas originates in soil and rocks. Being a gas, radon can move into any air space, such as basements, crawl space, and to other areas of a house. The amount of radon in the soil and'rocks varies from area to area. The Contractor shall not be liable for the presence of radon gas in the Home. The Owner(s) hereby release the Contractor from all claims that may arise, directly or indirectly, from the presence of radon. 17. Miscellaneous: (A). O~ner($) will provide electricity and, when necessary, heat during construction. Owner is responsible for costs for non-standard items such as water quality systems necessary to satisfy conditions of Owner(s) loan. (b). Contractor shall have access to Home at all times during construction. (c) All rights and liabilities herein given to, or imposed upon the respective parties hereto shall extend to and bind several and respective heirs, executors, administrator, successors and assigns of said parties; and if there be more than Owner, they shall be bound jointly and severally by their terms, covenants and agreements herein, and the word "O~ner" or "Owners" shall be deemed and taken to mean each and every person or party mentioned as an owner herein, be the same one or more. (d) The Owner shall not assign his interest in this Agreement without the written consent of the Contractor. iS. Owner has reviewed and accepted all deed restrictions applicable to this property. 19. Owner understands and agrees that Owner is not covered by Contractors insurance for any accident that may occur on the construction site. Owner is expressly prohibited from being on the construction site unless accompanied by the Contractor, or any employee of or agent for the Contractor without the Contractor's prior written approval. 20. Owner is aware there is no community sewage system available and that a permit for an individual sewage system will have to be obtained. Owner should contact the appropriate authority prior to signing this contract to determine the procedure and.requirements for obtaininq a permit for an individual Sewage system if one has not already been obtained. Mark if applicable ~ 21. In the event FHA construction financing is used, all ~construction loan costs, inspection and title fees, ,interest,..hazard ins~ranc~ and real estate taxes during ~he construction period shall be paid by Owner to the extent allowed by HUD. I/We have read and fully understand~_~nd agree to the terms and conditions contained herein. .r ~? ......... 22. In the event Contractor does not own the lot being sold with the new construction as a package at the time of execution of this agreement, this agreement shall be contingent on either Owner or Contractor (as applicable according to construction financing used) acquiring ownership, either record or equitable, prior to settlement. Owner shall cooperate and use best efforts to acquire said lot and in the event Owner's lot agreement (if not record owned by Owner) expires prior to the expiration of this construction agreement including.any extensions, Owner agree's to diligently seek extension, of c~.,~ ~ ~ ~on the lot agreement in conjunction -'~,~,, this ~-~'~"~' agreement. Failure to do so is a default under this agreement. 23. CHANGES IN WRITING: Any changes must be in writing and signed by both parties. Ail changes must be paid when written or a letter received from the Owner(s) lending agency showing the draw sequence has been changed to include pay/nent of the change order in full on the next draw. This Agreement replaces all prior written or oral agreements between Contractor and Owner(s) and shall inure and be binding upon the heirs, executors, administrators, successors and assigns of the parties. 24. GOVERNING LAW: Both Parties acknowledge that this agreement is entered into in Lancaster County~ PA and that any legal actions stemming herefrom shall be ~n the proper jurisdiction of the Courts of Common Pleas of Lancaster County, PA. 25. Settlement date on Owners financing prior to the start of construction to be on or before ~/~/19g~. However this is extendible by 300 dgys at Contractors sole option to accommodate Owners financing, lot acquisition, constr~ction sc~edu!ing, etc. 26. Contractor and Owner certify that no one working in the capacity of a real estate broker or agent is involved with this transaction and this transaction is solely between Contractor and Owner and no compensation is due to any outside party as a result of this transaction excepted as noted here IN WITNESS and seals the day thereby to be~ bound. Oakwood Custom Homes, Inc WHEREOF, the parties have set their hands and year first above written, intending owner Witnesses: , I/We have read and fully understand and agree and conditions contained herein. rev 10/98 to the terms CONSTRUCTION AGREEMENT DETAIL This Agreement is a supplement to a construction/sales agreement dated .~ /(~/1998 between Oakwood Custom Ho~es, Inc. hereinafter called Contractor, and ~qc~ ~. ('~-,i~hCf hereinafter called Owners, and is intended to be made a part c~ said agreement as though incorporated therein. Special Notes: I/We have read and fully understand.~n~gree to the terms ~nd conditions contained herein, '~,,~.~ rev 10/98 · AGREEMENT FOR THE SALE OF REAL ESTATE ,-~S-BB Resi0e This form r¢commg-ndcd a~d approved £or, hut not rcsthc~¢d to u~e by, the members o£ thc penn~'lvanh t~scciztlon of R~ALTORS® (72dt) AGENT FOR BUYER Douglas L. Zook Real Estate PA. LICENSED BROKER This Agr qement, antes [ / fl (residing at caped Seller, and {res~dmg at (r~lu~ng a[ / AGENT FOR SELLER PA. LICENSED BROKER , is betw~ c'.flled Buyer. 2. PROPERTY (7-96) Seller here.by agrees to sell ;md com'ey to Buyer. who hereby agree~ to purchase .~L 'I'~T C~RT.~ lot or piece of ground with buildin2s ~d~m~mvemenrs thereon C~nty of ~,~'~ in ~e Co~onweaJth of Pe~sylvaaia. Zip Code Identification (T~ ~;~rcel ~: Deed Book, Page. Recording Dare) Zoning Cl~si~cation ~e ff ~s A~ment to con~n ~e zomng clasm2cauon (excz;t in c~s whe:e ~e prcpe~' is zoned mle!y or p~ly to pe~ ~ng!e<~ly dwe!~/~gs) s~li render ~s A~eement voidab/e ~y deffosi~ tendered by ~e Euyez si~l ~e re~efl :o ~e Euyer ~x~cut :my re~re~ea~ for cc~ TER:vI$ (7-96) ('.a) Purchase Pr/ce '~ '-'~d -- '. Dollars wh/ch sba/l be paid to the Seller by ~e Buyer as follows: (B) Cash or checl{ at ~ing ~s A~eement: (C) C~h or check to ~e prod on or ~) (E) C~h or ce~ed check ar time ofse~ement: $ S S TOTA&, S ~(~ f(~ (F) Written appr~'al of Seller to be on or before: ~ / ~, (O) Settlement. to be made on or before: l~ (h') Conveyance from Seller will be by fee simple deed ofsFec:al 'xm'r:mtS' un/ess othev, v~5e ~tate: here (r) Payment o£ u'ans£er t&xes xvill ~e dMded equa/ly bern'eon -%yet :md Seller un/ess ot~e.'-,v/se stared here (J) The following shall be appomonefi pm-rata as or'and at ume of 3effiemenr: ;axes as le',~ed and as~ssefl: rents: in[eresz cp moa- ~gC a~p~o~; condo~ni~ fe~ ~ homeow~r ~mciauofl fees. ~ ~y: w~e ~o~ ~wer ~nu.ff ~}r [ogefller wi~ ~ o~er llemble m~icip~ seBices, unle~ o~emise r~ted here ~X~S .~ PE~ON~ PROPERTY (%96) (A) ~CL~ED in ~is role ~d p~h~ p~ce ~e ~1 erasing items pendently i~led in fl~e Prcpe~'. free of lie~. including pining, h~fing, H~ng Fzx~ (inc!u~ng c~deliemL water ~a~enr ~ems: pool ~d spa eqmpment: garage d~r openers ~d ~e~: teleport ante~ ~po~ed ~em. s~b&~ and pinnings: a~ rerunning hea~ng and cooing ~els ~ ~cP~ at ~c time of~ffi~ent; ~I to ~afl ca~efing; S~, ~lin~, windowcove~ngh~dw~e: ~lt-in ~r con.donee: ~m ~luded: (B) F~XCLUDED fixtures and items: 5PECDLL, CLAUS£5 (2-')6) (A) Buyer and Seller acknmvli !}~}c wing received a statement of their rcspcct,,c estimated closing coals before, sigmal A,..6$reemen t of Sa/e: (B) La Buyer acknowledges receipt oflhe Deposit Money Not/cc (on/)' applicable for cooperative sales). [] Buyer acknowledges receipt o£Seller's Pro¢crty Disclosure Statement. (C) The following are a part ofth/s Agreement if checked. [] Addendum *'B" (PAR Form B-6) [] Sale &: Settlement of Other Property Cont/ngency Addendum (PAR Form 130-6) I~ Sale & gelt/ement of Other Property. w/ti~ R/ght to Continue Marketing Contingency Addendum (PAR Form 1316) FiNA2tCING FOR BOTH THZS LOT AND THE HOHE TO BE BUILT ONt IT DY OAA?/OOD ..lC, SUCH FIN~2?CiNG TO BE A~PLI~D FOR OH OR BEFORE ~k~[~ . [] Sale of Tenant-Occupied Property Addendum [] (PAR Form TOP~6) Vacant L.~nd 5ale Addeodum (PAR Form VL-6) [~ Zoning Approval Addendum (PAR Form ZA-6) []n/a ~SUBJECT TO BUYER OBTAINING ADEOUATE CUSTOb~ HOMES, fUBJECT ALSO TO BU?ER BEING ABLE TO OBTAIH ALL PER. M/TS ~.?.-xO%~o NECESSAAY TO 5UiLDIHG,X' · '--S~TiC ~'Iff WATER AT A COST OF NGT MORE TF~r S ~(~3 FCR ALL. SU!JEC7 .... ~. .v_~ }tOT BE~ ~E~D'iRED. 'T ~R!Fi~TiON ~u.* BORING FOR UTiLITi~S ~. NOTICES ...CqD ASSESSMENTS (7-96) (A) Seller repre~n=. ~ of ~ ~x~fion of ~is Agr~m==[ ~= no pubbc improv~m=n[ ccndcmh~um or hcmemm~r n=ochdcn ~=m=nu haw ~e on ~ Se!le{~ ~h~f. mc!ud~ aoli~ tela~g 1o viohtio~ of zo~8. hoa~g, ~ild~g. meet; ~t fit= oruie~c~ which rem~n mcomte~, ar ~at ~il~ ~ow~ of no condldoa tfla[ wcu~d ~h~t¢ violauon of ~y s~h ord~c~s -.vh~ch :=ma~ mcorp:ed, u~ oflle~lse ~iHed here: ,~D) if [~quit~ by law. ~il~r sh~l d~ilv~ to B~cr on or ~lbrc scfflcm~[ a cern:]caeca :}em x~e agpropnzt* mm~c~ jeF~nt'or dimlo~ P~c= o[' ~ uc~e~d ~oiahon o~ zom~. hou~g. ~ild~. mi~ or :}re T~L~, ~'R%TT~ .~%'D COSTS lA) Fa~ Pmp~ is to bc conv~,~ ~ :~ cl~ of~l li~ ~cmo~c~, and ~mm~, ~'{CZP~'G HOSteLER. ~* rbilowmg: =~=tng budd~4 r=~fic~on~ ord~c~s. ~m~s of roa~ ~emem vi=bio upon ~e ~round. pnvfi~cs or 58h~ of p~iic ~r. ic= ccmFames, if a~'; · ~ ~tlc to rte ~ox~ dc~n~d rml e~ate sh~J be good ~a marketable ~d such ~ -.vd) ~ ~ured ~ a re~lc Tide lr~mn~ Compa~ ~r thc "~ ~ ~c ~v~t the $cil~r ~s ur~l~ m give ~ go~ ~d m~kct~l~ tide a~d such as x~iiI ~ ~urca by a :~Fu~ic Tide Comps, su~ m ~Ibrmmd. ~uye: ~h~J ha~c thc opticn et' u~ su~ 5fie ~ ~c ~ilcr c~ $~vc '.mk~cur ~a~ ef ~nc: er ct' ~g rcFmd ~I mcm~ paid by ~u}~r m Seller on x~aunt of ~c purcfla~ p~c= md thc ~ll~ a/Il r~mbu~ ;he ~ for ~y ~su ~cuc~ 5y 3u?r Yet ~osc items s~iE~ m ~mFh 7(D) (C) Fo~ :md~ of~n ~x~ fl~ ~a pu~h~ money is hem~y ,.vmv~. ~D) .~y ~ or s~'~'s ~vhich may b~ ::~ir~ ~ ~c T~fle [~u~ce Camp~ or thc ~mc:~F asomcy, :bt hSe pr~amucn of m adequam Bu>~r or r~uir~ by :he mo~e I~cr ~fl~l ~ s~cd ~d prod :bt by [ha Buyer. : 5', ~uy~ will p~y for ~c foilo~mg: (I) tfl~ p~mlum tbr mech~ics li~ ~urmce rod"or utle ~ca. or :~ ~or c~c~iJadon of mm~. if ~y, (2) %~* miums ~ot t]~ m~cc ~or llre ~m~cc wi~ ~end~ ~vcra~c. ~mr~ce binder char~cs or ~c:~}ancn {~. if ~y. (33 Appraisal fe~ ~nd DEPOS~ .~D RECO%TRY FL~D (4-93) ,,&) ~po~z~ ~=dle= et' abc fo~ oz'paym~ ~nd ~e p~son de~amd as pay~. ~ai] be prod re A g~ :hr the ~iler. if ~, o~e~.v~se re Agent :bt the Buy~. who sh~l ~ ~ ~ ~ e~mw ac~unt unnJ ~nmmmation or :e~manon of ~is .&prompt ~ co~i~' ~ith all appii~le laws :eg~adom, Ag~t for ~ller may. ~ his or her ~le opfiom hoid ~y unm~ed ch~k t~der~ ~ devosi[ ~ding ~e accepmce of ~is offer, :~m~c of ~e p=~. B~'er ~d Se/let ~$r~ chaL ~ ~e e~at ~y Agent herein ~s 5creed in 5r:~anon %r :kc remm of Je~osft mcme~. :he :~ a~ ~s~ of the Ag~ffs) wiiI ~ paid by the pa~y jomg the Agmt ~im~e tem~i~ For ~omplete de~i~ ~oui ¢~ Fu~. ~11'(717) 78346~8.. <A) Pos~ion is to ~ deliver~ ~ d~d. k~s ~d phy~i~ poss~on ~ a ~n~t buildup (if ~59 ~oom c!ea~, t?~ of debds ar ~ay and nme of sen~ m~t. or ~ d~ ~d a~i~ent ofe~mg/~ffs), tag~h~ wi~ ~y s~fi~ de.sit and ~eres[ at 2mc et' ~emmr if ProFe~' :s :m~r occupied at ~e ~x~fion of ~is ~t~mmt. or u~s oth~vi~ sp~ifi~ bm. Buy~ ~mowl~ge ems~g }e=~s) by inifi~g smd Im~fs) at dine of g~ of this Agt~mt of 5~ if ~pe~ is tm~ oc~pi~. lB) ~ll~ ~ll ~t ~ rata a~ new tm~ wfi~n ~mion of e~s~8 le~. if ~y. or addido~l [e~es for ~ Prope~' ~ttho~ e~re~ wnnen ~n- ~ of the Buy~. ~..5~WEN~ ~D RI~ OF LO~S (7-00 ' · · ' · ' ' " (A) $efler ~afl m~ ~e Pmp~, fkmrm, a~ a~ p~o~l pmp~ ~edl]mlly ~h~uJ~ herein ~ ks prc~nt c~ndl/~om nom~ wmr =d (B) Bus~r r~e~ the right m re:kc a pre. sealant m~ecfion of ~c Prop~ n 5.5 t (~,6), ReaIFAST~ Software Put~liahing/nc.. (c) 1998 ,, (C) SeJ er shaB b~ar. risk of loss frori~,.: ' ~, other cauaaJti~ un'l lim~ of sc~cmeut In ~c ~ d~agc eo any or o~er ~1~. ~ rcpa~r~ ~:e ~ prior ~ se~lcm~ ~u~r s~l has~ ~ opu~ r~d~g this Agr~m~nt p~d on ac~unt or of.~p~ ~e ~,u~Hy in i~ ~ coOl,on ~ge~ wi~ ~e pr~s of my ~ur~c is hereby nofifi~ ~hat BW~ may ~rc Buyers cq~tablc ~tcr~ ~ ~s pwpe~y as of thc ~mc of ~c ~ion of 1 I. RECO~ING 0-85) ~i$ ~ccm~t sh~l ~t bc r~ord~ ~ ~c ~c~ for ~c R~ord~ of ~s or ~ ~y o~cr o~cc or pI~ of public r~cd if Bu)vr ~cs or ~j~ thia ~r~m=t ~ ~ r~ord~, Seller may cleft ~ trot s~h ~t as a brach oF ~fis 12. ~SIG~T (3-8~ ~is ~m~t shMI bc b~ u~n ~ pa~, ~hr r~p~fivc heirs, ~=o~ reprc~nUfivea, ~rdi~ ~d s~s~ors, an 13. DEFAULT-T~IE OF T~ ESSENCE O-91) %c ~id ~mc for $ct~cment a~ aU o~cr ~mes ccfc~ to for ~c tMs Agr~m~t are he~y ~r~d ~ be of ~c ~s~c oC ~s ~rccm~L Should Buyer: (A) Fall ~ m~c a~ ~difion~ pa~U as s~ifi~ ~ par~pb 3, or ~) Fu~sh fgsc or ~ompic~ ~omation ~ ~c ~llcr, Agent for Sc~cr. Ag~ for B~, or ~c mo~c l~dcr. cig s~, or fMl ~ c~pc~tc ~ ~c p~s~ oC ~c mo~g~c I~a applicaffon ~{ch ac~ wo~d re~k M thc fMlurc to o~ ~e approv~ ~ ~ such ~, M1 de~t moM~ ~d o~er ~ms pMd by ~e Buy~ on ~o~t of Ibc pu<h=~ price, whether requir~ by ~is Agre~ or no~ m bc rc~ by the Sailer ~ ~quldat~ d~e~ ~ ~lh p~Jes sh~ ~ relc~ from ~ ~ili~ or obligatio~ fi~t to me for t~ b~ of ~e p~e p~ or for ~mag~ ~/e~d by a r~e of l~ Prope~. or p~c~, ~c Ag~(s) for ~e ~llcr, ~ ~at ~ ~ed Ag=t for ~c Eu)~r. thor mid.pie, cmp~oy~ o~= Buyer. REPRESESTATIO ~3 ~p/oy~s arc not a ~ of this ~m~t, ml~s ~sly ~ or s=~ ~ ~s wM5z~ ~ fi~ t to do ~, ~ ~ a~d to p~se it M i~ ~e ~n~on. ~5~r ac~wl~ g~ ~ t th e.&g~ ~ve not made ~ Mdepender ~ of the ~y~e~ ~nt~ ~e~ N~ICE TO PA~IES: ~N SIGNED, T~S AG~EMENT IS A BI~G CONT~. Rein by ad~d to ~m~t ~ ano~y before ~i~g ~ t~y d~e I~ ~iTNE$$ ~UYER DATE DATE Seller her~y approves tile above conwact this day o£ A,D. '..'x~ in e.,~midera~on o£th¢ s~i~ r~de~ m p~ ~e 8~, Seller ~s to pay ~e n~ Ag<t t~r ~/ler a f~e of a~'~om ~e her~ ~fi~ ~le p~. ~ ~e ev~t Buy~ decants h~er. ~y monJ~ p~d on ~um ~al] ~ div/d~ ;eljer. . ~ent lbr ~ll~. but ~ ~ e~ent ~1 ~e sum p~d m the ~ent tbr Seller ~ m exes et' the ~ove s~ A~t's IiTNESS SELLER (SEAL) DATE EXHIBIT B NATIOI, WIDE® INSURANCE COM, ,4NIES 1000 Nationwide Drive P.O. Box 2655 Harrisburg, PA 17105 HOPLEOWNERS NOTICE OF CANCELLATION OR REFUSAL TO RENEW PENNSYLVANIA LAW REQUIRES THAT YOU BE GIVEN A COPY OF THIS NOTICE. PLEASE READ BOTH SIDES OFTHIS FORM CAREFULLY. Beverly A. Grindley P~O. Box 1394 Carilsle, PA 17013-6394 KindofPoli~: Homeowner/Elite II Poli~No.: 58 HO 704125 Cancellation or ~rm~ation will take eff~t at: 05/24/00 lZ:0l a.m. (Date) (Hou~-Standa~Time) Dare,Mailing: March 15, 2000 LOCATION ADDRESS Lot 2 - Crossroad School Road Carlisle, PA 17013 (Applicable item marked ~) You are hereby notified that the above mentioned policy [] is being cancelled by [~will not be renewed by [] Nationwide Mutual Insurance Company [~Nationwide Mutual Fire Insurance Company [] Nationwide Properly and Casualty Insurance Company This means that the above mentioned policy will no longer be in force on the cancellation or termination date mentioned above. You have, therefore, until the cancellation or termination date shown above to get new coverage If you want to do so. The reasonforthis cancellation ornonrenewalis: There is a substantial increase in hazards insured against by reason of willful or negligent acts or omissions by the insured. Your failure to comply with requested recommendations sent to you on November 22, 1999. Specifically correct foundation problem, due to foundation settling; properly install footers below frost line; and water proof basement walls. You may become eligible for coverage if you complete recommendations. When changes have been made or you can provide the necessary information, please coatact your Nationwide Agent to initiate another review. The factor(s) that !0fluenced our decision was infprm~tion in a report obtained from the consumer reporting agency shown below. The consumer reporting agency did not make the decision to raise adverse action and is unable to provide you the specific reason why the adverse action was taken. You have the right to obtain a free copy of the report from the consumer reporting agency by request within §0 days of the receipt of this notice. You have the right to dispute the accuracy or completeness of any information contained in the report with the consumer reporting agency. We regret this action is necessary. 'If you disagree with this decision or have any queMtions, pleaSe'feel free tO contact your' local Nationwide Agent shown below. You may request to have this decision reviewed by the Pennsy£vania Departmenc of Insurance, instructions provided on back of this letter. (Name) (Address) _ (Ph°n~c. Lisa G]-~,¢e, 2407277- (717) 763-8514 CAS-2667-F (9/98) Muriel Rodriguez Authorized Represenlative ~OX 2655 HARRISBURG, PA 17105-2~55 November 24, 1999 Beverly A. Grindley P.O. Box 1394 Carllale, PA t7013-6394 Policy Number: 58 37 HO 704 125 Survey Date: September 23, 1999 Dear Ms. Ggndley: One of the services Nationwide offera our policyholders is a periodic inspection of insured dwellings. These inspections are used to obta/n underwriting/nformation and to assist you in properly insuring your property. A recent inspection of your property revealed a condition which could lead to a loss inthe future. We have.developed recommendation~ from the inspection. Completing the recommendations should help reduce the potential for loss on your property. Recommendations are enclosed and should be completed by February 15, 2000. Please let your Nationwide Representative know by the date indicated above what action you plan W take or have taken on the recommendations. Failure to respond to the recommendations could result in termination of this coverage. We apprec/ate your concern for the protection of your insured property. We thank you for placing the protection of this property w/th Nationwide, Muriel Rodri~uez NATIONWIDE INSURANCE Enclosures: Recommendations 803/tmh cc: 2407277 lnlergled Io assure =ompliance with any stale or Federal reguLMi°ns.' The ~nainlena~ce of safe premise~, operations, and equipment Is the legal respor-~:~llty of the inasred. Nalkmw/de as~umas nd responsibility for the managemast or oolltml of the insurecra safety ac~villes. Neifl~r the C~mpany, its agents, no~ employees shall be lialde for any Io~ other bum as covered by the Co~npany. BOX 2655 NATIONWIDE INSURANCE Na~onwide I- on your side Recommendations Insured: Beverly A. Or/ndley Survey Location: P.O. Box 1394, Carlisle, PA 17013-6394 Date of Survey: September 23, 1999 Policy Number: 58 37 HO 704 125 The recommendations lisled below, and of~ any and aH atlached pages, am based o~ observations and/er Inta~vs at Ihe time of the call The recemmendaflons do not neces~rlly reu~gnize ali hazards pmeent in your premises or opm"~ons and ~ ~ Inlended to assure compliance with any state or Federal regula~k)~s. The maintenance of safe premises, operations, and employees ~nafl be liable f~' any ~ olher tha~l es covered by insurance I~tmcl by the company. Failure to respond to the follow/ng recommendations could result in the termination of your coverage. You may become ehgible for coverage fi.you: 99-1 Correct foundation problem. Foundation is starting to settle. 99-2 Properly instnll footers below frost line. 99-3 Waterproof basement walls. EXHIBIT C McCorkel Construction Services Inc. Z. tmmeman goad Carlisle, I~A 17013 (717) 34~-?$22 / ]~ax Cell~': (717) ',Fge do it right the first time" January17,2002 Mr. & Mrs. John Griffith P. O. Box 1394 Carlisle, PA '17013 Re: Demolition & Rebuild Existing New Home (Approximately 1694 Sq. Ft,, Split Level Style) Located at 36 Weteoll Dl~ve, Carltale, PA, Dear Mr. & Mrs. griff~h: This ~ontre~t provides an estimate for the necessary labor and materials to perform the work required by completing the proposed project within the sc, ope of this description and pdnts supplied by customer. It is your responsibility to work with Mc, Corkel Construction Servioes, Inc. to develop a ctear undemtan~tlng for all legal, cite end etruc, tural ooneiderations for WhiCh yOU should have an understarKl[ng. This desoription has been prepared in a manner that reflects the information a~ it relates to your expectations and the commitments of MoGort(el Construction Services, Inc. If, for any reason you or McCorkel Construction Services, Inc. make changes, said changes must be in written form clearly explaining the change, the amount of money involved and how the payment/credit will be handled. Change orders require a dedosit of 50% upon execution of the change order and remaining balance upon completion, This contract supersedes all other specifications, drawings and/or any other Information provided by client, unless otherwise noted on proposal. The following (wherever applicable) description has been prepared to provide a general idea of what we expect will be involved. As the work progresses, you will be kept informed of each development and the options which are available, thus .enabling you to make choices, based on your expectations and'the monetary amount~ involved. All rnetedals supplied and installed by contractor are to be as specified and to carry manufacturer's warranty. All work w~ll be c~mpleted in a workman like Page Two January 17. 2002 manner. Our labor carries a one-year warranty, Contractor is not responsible for any material or labor suppliecl by customer or customers sul~contractors. In the event legal representation is sought due to customer's breaoh or contrast, the customer will be responsible for the contractor's legal fees. In the event a dispute adses regarding satisfaction of workmanship, and/or materials, both parties agree to bind ~orr~elves over to ,~rbitration by a qualified arpitratJon panel. Color variafions a~'e common and may be evident when new work connects work in an existing area, due to but no+. limited to dirt, dust, smoke, fading, weather conditim~s, changes from menuf~acturar= variations in paint colors, discontinued materials, um~known manufacturers, etc. Shrinkage or ~ltfement cracks in blacktop, u-~n~rata, metier joints, block, stone, applied me,gary finishes, ceramic file end joints are common and should be expected within certain tolerances. Any cracks greater than 1/8" in width will be repaired by surface patching or pointing; builder will not be responsible for color variations. Splits and warping in wood are common due to humidity levels causing expansion and contr'ac~ion of the wood, and uneven walls, ceilings and floors, and should be expected within certain tolerances. Expansion and contraction of the wood may also cause cracks and nail pops In drywall and plaster, trim Jolrmts, and paint t~ crack. Filler or caulking and refinishing gl'the Immediate area will repair any cracks or nail pops that may occur within the warranty period greater than 1/8" In wldt~; builder will not be responsible for color variations or warping of wood. Areas that ere dug up may softie after exposure to certain weather conditions or t~aftic patterns, those areas would encounter an extra to return and fill back to grade. We will not accept msponsibilib/for any problems arising from pre- existing property (sinkholes, buried debris, otc,}, electrical, plumbing, structural, and/or mechanical system deficiencies. Any visible discrepancies that are evident relative to the work involved must be addressed In writing within thirty days after work Is completed and approved. Our workers will strive to protect customer's property es much as possible, but With tl3e nature of the job, we gannet be held responsible for any oreo. ks or nail pops in the plaster, drywaJl, rnaeon~y, or dust ~hat may occur dutlng construction. Customer responsible for removing and replacing existing possessions and furniture from work area, walls, and ceiling, to protect from any damages. Pa~ Thf~ January 17, 2002 Customer gives contractor permission to usa driveway, walkways, patios, lawn, and or parking areas for access to work. Contractor will not be held responsible for any oraoks In curbs, walkways, i)al~os, parking areas, end driveways or uneven areas due to delivery of materials or accessing the property with vehicles, unless specifically noted in the contract. The customer will give oontraotor permission to trim or remove oxisting tress and bushes to ac;ce,,s t~e work area h' necessary. Customer is rospo~sible to carry sufficient horneowner~s insurance coverage necessary to cover existing home including the cost ortho project. Customer's insurance coverage takes effect whe~ any material Is Installed, fastened, etc., In or on the project. McCorkel Construction Services, inc. !s fully insured with liability and workers' compensation insurance as required by law. Contractor does not guaranties the survival of lawns, plants or shrubs disturbed during or by construction. Customer responsible for watering of lawns, plants or shrubs to insure survival. We are not responsible for delays to complele work due to ~ituatlon; beyond McCorkel Construction Services, Inc. control. Such as, but not limited to. necessary permits, variances, manufacturers supplying of materials in a timely manner, clellvery of erroneous or damaged materials, possible aamages cluring shipment, and or Installation, mertufa¢turer's or delivery labor stdkes, acts of nature, terrorism, war, or emergency $itua~dons. Any account not paid In full within 30 days (unless prior agreed upon ermngement~, have been made) upon sompleflon of project will be charged an additional t.$% Inter~t per month on remaining balance (which is an annual rate of '18%. Demolition of Exlefln;I Home as is in Rouuh Framlrm Stage (no ir~rlor or exterior finish) 1. Due to existing structuraJ and labor deflrder~les addressed by Yingst Engineers, Heartland Homes, and visual Inspection by Mccorkel Construction the existing home wirl have to be demolished, 2, McCo~el Construe'don will not give any guarantee on the existing home to rebuild or corm~ (monetary value would be less expensive to demolish and rebuild). 3. The existing doors and windows would be salvaged and mused to rebuild in a new~y constructed home. 4. Clean up and remove debris from jobsite. Page Four Jehu=tv 17, 2002. 5. Provide labor and materials for the following specifications, Pem~ita. Blue~rint~ and/or Reauim~l Fm Customer reapon¢[bfe for providing all permits, blueprints, end/or required fees. Buildin= Site Preparation and Excavation 1, Excavate area in existing site for rebuilding of home as per plans, 2. Back fill around the exterlor of foundation with the existing on;Its fill and then grade the lot. 3. Slope the grade away from home approximately 1" per foot for the first 10' and grade ec~3o~ding to available slope for remainder of lot. 4. NO allowances fo~ extra fill or topsoil If needed. (Extra charges for fill and/or topsoil If needed,) 5, Spread topsoil on lot ~ approximately 4" thick with existing topsoil on lot. 1, Form & pour 3000PSI concrete footings approximately 18" wide x 8" thick with two ~ steel reinfoming rods. 2. Form footers with Form-A-Drain system and tie into sump crock. Basement Wall~ & t~t Flor Walls 1. Lay t0' block to required floor height in basement & front porch (approximately 8' high), and to floor framing height for 1" floor (garage/family room). 2. Install one W1235 stee{ beam to clear span basement. 3. Install ~ement ~tucco on exterior of block wall and spray sealer. 4. Install tie down straps in walls approximately eve~ 4', 5. install two vinyl basement windows approximately 32" wide x 18" high, Interior Conorete Stabs Install aPPmxima.tely 8" thick 2b crushed ~tone~ under slab areas in basement arid 1" floor, Install sump crock (no sump pump) in basement and install pipe for radon gas to exterior of basement wails. Page Five ~Jenu,~ry 17, 2002 3. Install plastic vapor barrier and 1.5" Styrofoam insulation under slab in family room, Pour 300DPSI concrete with fiber reinforcement for basement and family room slabs. 4. Pour 3000PSI concrete with fiber reinforcement for basement and family room aloha. Frami~a: Floom Walb and Roof 1, Install sill sealer on top of basement walls. 2. Install pre~eure-t3'eatad 2" x 6" plates on walls. 3. Frame floor over basement and 2"d floor with 2" x 10", 16" O.C. floor and box jo sts, 4. Sheath floor~ with ~' T&G ^dvantek flooring, glued and nailed into piece, 5. Frame all walls with 2" x 4" x 8' studs 18'. O.C., aJlow for window and door openings as per prints. 6. Install proper size headers over all openings for doors and windows. 7. Sheath exterior walls with 7/16" OSi~. 8. Install trusses on roof and poroh, 4/12' pltoh with 1' overhangs on both sides; no overhang on gable ends. 9, Install mlcrolam beam in family room for second floor to clear span. 10. Install steps to basement and 2"d floor (pre-built white pine with enclosed risers. 10' tread 7-1/2' risers). 11. Install beam on front porch and two colonial-style, turned 4" × 4" w~od, paint - grade 12, Sheath roof withS/8' OSB. 13, install pressure-treated firring strips on block wall areas in family room, ~.ooflncl 1, Install 154b felt paperon roof 2, Install drll:) edge around exterior 13erlmeter of roof. 3. Install 25-ybar self-sealing three tab fiberglass shingles with 5" exposure. 4. Install fiber type ridge vent on ridge of roof. Windoam ~, Doom 1. Reinstall doors and windows from existing Page Six January 17, 200~ Exterior Finish 1. Install medium-priced double five Dutch-style vinyl siding and accessories on exterior of home (customer's choice of standard colors). 2, Install white oenter vent soffit on overhangs front and bacK, 3, Install solid soffit on porch ceiling and wrap beam with alumir~um coilstock. 4, Install whi~e aluminum fascia on eaves and gable face boards. 5. Install white seamless 5' K style aluminum gutters with hidden hangers and downspouts. 6. Install standard vinyl shutter~ on all wlndow~ (Customer's ohoi~e of standard colors), Porch, 51dewalk and De~k 1. Install approximately 4" thick, 3O00PSI, fiber reinforced concrete on front porch. 2. Install concrete sidewalk from porch to driveway approximately ,:3' wide x 15' long. 3. Install a pressure-treated wood deck on rear approximately 8' wide x 12' long with steps and railing (picket style railing). Electrical Install 200 AMP meter base, 200 AMP 40 position panel box. Install receptacles, switches, etc. a No fault recepta~es in bath, two exterior and kitchen counter areas. a Interior end exterior lighting (as per allowance of $1,250.00 for lights and bath farm~. n b-"wltches as per prints for lighting, bath fans, and receptacles. -~ Wire for water heater, Kitchen appliances: stove, range hood, refrigerator, dish washer, and garbage disposal. a Wire for Heat Pump, central air. ~ Conneotione for septic system and alarm, ia Wiring for well pump. ~3. Wiring for washer and dryer. ' r~ Wire for interconnecting smoke alarms. PageS even Januaw 17.2003 Plu.mbinl:l Install sUpply and drain lines for kitchen, one and one-half baths and laundry. Install bath, kitchen, fixtures and faucets (as per installed allowances of $2,660,00). [3 One one-piece combination tub and shower unit with faucet and drain assembly, [3 Two toilets with seats. [] Two vanities with tops, faucets, and drains. install one double bowl Idtchan sink, with faucet~, drain and basket strainers. [3 Install one garbage dlspceal. a Hook up dishwasher. 3. Install laundry box for washer. 4. Install tWO ~'ost-free exterior faucets. 5. Install pump and holding tank with controls and tie into existing well 6. Hook sewer line int~ existing septic system with pump already in,tailed, 7. Install one 80-gallon water heater. Insulation 1. Insulate walls with 3.5" wall spray cellulose Insulation. 2. Insulate cellll~g$ with approximately 9~ R30 blown c~lutose insulation. 3. Insu!ata exterior perimeter of box joists with fiberglass insulation, Heat/Air Conditioning 1. Install necessary clucta and grills for supply and return air. 2. Install electric heat pump properly sized to heat home. 3. install central air property sized to cool home. Drywall !. Drywall all walls and ceilings with ~S" d~wall, except no drywall in basement. 2. Install watar-mslstant drywall In full bathroom. Page Eight January 17. 2002 Kitchen 1. Install kitchen as per installed allowance of $4,800.00. .~ Install kitchen oabinats (no soffit). ~ Install Fora'dos countertope with 4" baoksplaeh. Al~oliancee I. Install appliances as per installed allowance of $2,600.00 ,-, Install refrigerator/freezer. ~ InMall slide-in range. a Install duc'ted range hood. ~ Inst~ll garbage dispoe,:,l. a Install dishwasher. Trim Work and Interior Door~ 1. Install paint-grade standard colonial-style 2-3/8" w~de trim around doors and windows. 2. Build jambs for window extensions and install. 3. Install stools on windows. 4. Install Paint-grads masonite, six panel, colonial interior doors as per print. 5, Inst~ll paint-grade wood handrail on one side ofthrse sets of steps, 8. Install paint-grade standard colonial style 3-1/4" baseboard In main living areas. 7. Ne trim work In basement area. 8. Install One shelf with clothes rod in each closet. 9. Install two access areas to attic and tdm. pelntlna l, Pein+` walls and ceiling one coat primer and two finish coats, latex vinyl fiat, one color. 2, Paint all interior trim one coat primer and two finish coats, latex enamel, and one ~olor, 3. Paint exterior of door and porch posts one coat primer and two finish coats, latex enamel, one color. Page Nine January 17, 2002 1, Install all underiayment where needed for vinyl flooring, and Iloor finishes as per allowance of $3,800.00 instaJied price. ,MiscelLaneou~ 1. Install mirrors, towel bars and toiiet paper holders per miscellaneous installed allowance ol' ~O0.00. Driveway 1. Cut ares for drfveway approximately 1500 square feet x 6" thick. 2. Install approximately 6" thick 2a modified crushed stone and level AIIow~l~¢~ 1. No allowance for septl0 ey~em. 2, No allowance fo~ well or pump. 3. No allowartce for landscaping. 4. No allowance for lawn seeding. Total E~tlmeted Cost Demolition of Home & Rebuild New Home:S136,180,00 Payment schedule: As per bani( draws These prices am good I~r a period of 60 days from above date. Page Ten Januen/17, 2002 The above prices, specifications and condi~ons are satisfactory and we hereby accept, You are aUthorfzed to perform the work as specified. Payment will be made as outlined above. This contract constitutes the sole and entire agreement between the parties hereto and no modifications of this contract shall be binding unless attached heneto and signed by all par'Uae to trle agreement. The parties do set their hands and seals (3n the 2002. day of , Joseph B. McCorkei EXHIBIT D BrAJLK ~.~IDHEN G Af~SOCIA~BS ~ Z.D. ~. 0430~ ~040 ~. ~ E~Y, SU~T~ 500 ~ ~LL, ~ 08034 856-482-6500 ~32 Neck. Drive Mi~sbU~, OH 4~342 Plaintiff V6 ATTOP-NEY FOR ~LA~I~T.TFF WlTH~TO~T~U~ AND COURT OF COMMON PLEAS/~ : ~ CIVIL DIVISION : :Cumberland Cott~ty · Beverly A. Gr±nd/ey - ~.0. Box 1394 ~NO.0Z-lS86 'Carlisle, PA 17013 : Defe~dallt(s) : AMI~NDED CoMpLAINT.INMoRT~h~GE FORECLosuRE, FILED PURSUANT, TO COURT ORDRR DATED DECEMBER ~7, 2.001 YOU~HAVE BEEN S~au IN COURT, If you wieh to defend against the claims set forth in th~ following pages, you must take action within twenty (20) days after chis Complaint a~.d Notice are aer~ed, by enterin~ a written appearance personally or by attorney and filing in'~rriting 'with the Court your defenses or objections to the claims sec forth against you. You are warned that if you.fail to do so the case may proceed without, y~u an~ a judgment may be 'entered eg~im~=.you by the Court without further 'notice for any money c/aimed in the C~laint or for any other clafmor relief requested by the Plaint'iff. You may lome money or property or other rights important to you. XOU SHO~]-'dD. TAKE THTS PAPER TO YOU1% LAW~ER AT ONCE. IF ~OU DO HAT~ A LAWYI~ O~ CA~NOT AFF0~D Oh~, ~O TO OR TELEPHON~ TH~ 0FF~C~ SET FO~ ~ TO FI~ O~ ~ YOU ~ GKT LEG~ ~P. Cumberland County Bar A~sociation 2 Liberty Avenue Carlisle, PA 17013-~387 717-249-3166 or 800-990-9108 de e~tas dementias -~?uestae en iH paginas si~uien~es, us=ed tiene ~einte (20) dias de plazo al ~ar~ir de la fecha de l& demanda y 1= no~ifica¢ion. Hace £&lCa asoen~ar una-eOmparenci& escrOW& o'en persona o con un abogado ~ ~ntr~ar & la .corSe ~u forma e~cri~a sus defenses o ~us obj~clon~s a las d~nandas en cont,& de su persona. Sea avis&do que si us~ed no se da.fie~le, la corte ~o-m~e medid=s y ~uede con=inuar la dem~nda en con=re suya s~n .previo aviso o notifiuaclon'. Ad~s, la corte puecle decidir u f=vor del demandante y requiere que u~=ed cure, la con todas las provisiones ~e 8st& ~eman~a. Ust~d ~/ede perde~T dinero o sus l~ro~iedads~ = otros derechos im~ortante~ l~ara ust~d. LLEVE B8TA DB~ANDA A UN AB0~D0 ~t~w~IATA~F~---~, ~I NO TZEN~ A~OGADO O ~Z NO T~TE EL DZ~0 SUFICIENTE DE PAGA~ TAL SERVICZO,. VAYA EN P~0N]~ O IJ~LME PO]t TELEFO~O A ~A OFICINA CUYA D~CCZON S~ .~u~-&~A BSC~tZTA ABAJO PARA AV~RZGUAR DONDE ~ ~u~u~E (]ONSEQUIK AB3;~ITENCZA, LEGAL. Cumberland County Bar Association 2 Libert~ Avenue Carib~ PA 17013-3387 717-249-3166 or 800-990-9108 NATIONAL CITYMORTGAOE,: IN THE.COURT OF COMMON PLEAS OF pl,{.~ff : CUMBERLAND COUNTY,. PENNSYLVANIA v. .. : CIVIL ACTION- LAW BEVERLY A~ oRINDLEY,' ': D~f~-~ : NO. 01-1586 CIVIL TERM INRE: DEFF, NDA~x~r's MOTIONFO!~. "' 8UMMAKY JUDG~ and PLAINTIFF'S. " MOT[ON FOR LFdkVE TO A2VeaND COMPLAINT ,' ovaa~a OF COURT. " · ': " ''..AND'Now. mi~'lT~'da¥-0f Dec.abet, ·2001, at~. ¢~ef-al ¢omid~'ation of D,fenitaat's Motion :fei':;Summary .]'udgment, and'of Plaintiff's ' '";' . ' ................. ' Motim for'Le~w TO Am~'hd'Co~la~,.D~I'endant'$ Motion for S,mmary ludgraent is denied ttud Plaluti~s BY TI~ COI~T,. .J~O North Kin~s Highway · .. 'Attorney NOTICE The amount of your debt is as stated in the attached document. The name of the creditor to Whom the debt is owed is as named in the attached document. Unless you notify us wi~n 30 day~ after receipt of this Notice and the attached document that the validity of file ${ated debt~ or any Portion of it, is disputed, we will assume that file debt is vglifl. If lmu do no/if~ us in writing of a dispute within file 30 day period, .we will obtain verification 'of the debt or a copy of a jnrl~mn, ent against you, and mail it to you. If you do'not dispute fil.e debt, it is not an ~dm{~sion of linb/llty ou your part Also, upon your written request withh t~ ~0 day p~riod, we ~ provide you with the name and address of file original creditor if diff~r~llt fl~o~t the ~nrreni creditor. If you notify us in writfn~ within file 30 day period as stated above, we w/il cease collection of your deb~, or axty disputed portion of It, until we obtain file information that is required and m,H it to yon. Once we have rushed to you file required infomafiOn, we will then continue the colkcflon of your debt. Tlds law firmis deemed to be a debt collector and this Notice nd the attached is an attempt to collect a debt, alld ally information obtained will b~ used for that purpose. LAW OFFICF_~ OF MARK J. UDREN /s/Mark $. UdreK Esquire 1040 N..Kt~gs Highway, Sul~ 500. Cherry ~t'i11; NJ 08034 (ss 1. . Plaintiff is the Corporation d~_~ignated as' suc/~ i~ the caption on ~ precedin~ page, I~ Plaintiff is an assignee then is ~uch by virtue o~ the follo~ng recorded ~si~ts of Reco~ to: N/A Recor~in~ Date: ~/A 2. Defender(s) is =he ~vid~l desisted as such on the ~aption on a prec~din~ page, whose las0 ~0~ sd~ess is as s~t fo~h in the. caption, ~d ~less desi~ated othe~ise, is r~ o~er(s) ~d mo~gagor(s} of the pr~ses berg foreclosed. ~ere~a=ter de~cr~ed, at the ~t~ce ~d reTaest of Defendant(s). Pla~tiff (or its predecessor, herinafter called Plaintiff) lo.ed to the 'Defender (e) the m~ applying 'Morgans. w~ch Mo~ was exerted ~d delivered to ~l~ntlff as security for the i~=e~ess. Said Mo~g~e is inco~orated herein ~ ~erence tn accordance wi~h PA.R,C,P, 1019 ~e i~o~tion, rg~arding the Mortgage-bein~ f$reclosed is as follows: MOET~ED P~SES: 2 Cross~a~ School 36 Watson Dri~ ~ICIP~I~/TO~SHIP/BOROUGH~ West Pe~s~ro T~s~p DATE ~cu[~'~: 7/19/99 DATE ~: 7/21/99 B~K: 15~8 P~E: 482 The legal description of the mortgaged premises is attached ~ere=o and ms~e par~ hereof. 4, Said ~rtgage is in defaUlt because of failure to Com~ly wi%h ~he Construction/permanent aider whlchmandates that contruction of the residence 'shall be completed on or before ~. As & result of Defendant's failure to comply with the mortgage, plaintiff accelerated the F.,ort~age, which amount to date has not been paid. 6. By the terms of the Mortgage, upon breach a/%d failure to cure s~id breach after notice, all sums secured by said Mortgage, together with other charges authorized by ~said Mortgage ite.~ized below, are immediately d~e. ?. After dem0nd, the Defendant (s) continues to fail or refuses to comply with the terms of the Mortgage by failing or refusing to pay the accelerated amount due, itemized as of F~%rch 8, 2001, as Principal of debt due and unpaid Interest at 7.875% to (the l~er diem inte~st attains on ~s debu is $5.52 ~d u~ ~ ~ould ~. a~ded each day after ~/~/0Z) Title Repor~ ' Court Costs (anticipated, excluding Sheriff's Scl= costs) Escrow Overdraft/(Balance) (The monthly escrow on this account ia $0.~0 an4 that sum should be added on the first of each mc~th after 3/8/01) $25,219.86 2,219.04 250.00 280.00 0,00 ' ~ate Charges (monthly late cb~r~e of $0.00 shou/d be added on the fifteenUh of each month after 3/8/01} 0.00 C~r~orate Advance Attorneys Fees (an~£cip&ted and actual to ~% of pmincipal) · ' 518.40 $29,748.29 8. The attorney.s fee set forth abo~e are in conform/fy with the mortgage documents and Penm--ylvania lkw, mnd will be collected in the eYen~-of a third par~y .p~rchaser at Sheriff's S&le. If the mortgage is reinstated prior to the sale, re=sonable attorney's fees will be charged in accordance with the reduction provisions of Act 6, if applicable, 9. Notice of Intention to Foreclose under Act-6 of 1974 of the CommonWealth of ~e~sylvamia is not.required &s the original 9rln¢ipal amount exceeds the sum o~ $50,000.00. The notice specifledbythe Pennsylvania ~omeowner~s ~mergency Mortgage 'Assi~t~nce Program, Act 91 cf 1983,'has not been sent because the Mortgage is i~,s.tt~.,ed by ~he Federal Housing Administration (.FHA.) - ~nd the notice is therefore no~ required.. WHER~FOI~E,' the Plaintiff demands judgment, in rem, the. De£endant(s)' herein in the sum of $29,748.29 plus interest, Comp1=int, and for foreclosure an~ sale of the Mark J. Udren, ESQUIRE MARK'J. UDP. EN &ASSOCTATES Attorney for Plaintiff .Attorney I.D. No, 04302 i' Mark J. Udren, E~quire, hereby states that he is the atcorney for the Plaintiff, ~ corporation unless ~si~ated otherwise; that he is authorised to take this Verification and does so because of the exigencies re~ardin~ this matter, ~d b~cause Plaintiff ~st' ~rify mu~ of the ~fo~ation' t~ough =~s, ~ b~caus~ he ha~ ~erso~l ~owl~ge of' ~o~ o~ ~ .facts ~ve~ed'in ~he forego~g pleading; ~d t~at th~ state,ts of ~s ~owledge. i~o~tion ~nd belief ~ the so, ce of ~s info~t~on is ~lic reco~s ~d reports of Pl~intiff'.s agents. The ~dersi~ed ~derst~ds C~t this gtat~en= herein is ~de · ~J~c= to. the 9~altles of 18 Pa.C.S. S~ction %904 relatins to ~swo~ falSifioatf~ to ~uthorities. Mark J. Udr~n, ES0~IP, E MAPI J. UD~EN & ASSOCIATES 02/16/02 15:31 0Z/15/02 13:44 F~ FAX 7174920097 OAKWOOD imOl9~]04 irt ~ Oak~ood Cu,~rom Home. s, Inc. '.~ Petition ~o that ~ ~ statc~ 'm~,~ ~ xt~i~ct t~ the p~alti~ of 18 Pa~C.S. §490d. ~ ~ unswo~n falsilic, z.don ~o authorities. OFFICE OF PROTHONOTARY Cumberland County, Carlisle, PA 17013 Date /V~'J. ~/~OOI This is to notify you that Listed for Argument on Cumberland Coun~ A~ument C~ Rules 21 enfomed. If*' ~" ~ INSUFFICIENT ADDRESS ~ OTHER per L~al R ~ NO SUCH NUM~ ~ NOT OELIVE~E RS ~DRESSEO INSUP"EICJENT ADDRESB ~ OTHER .,D~ATTEMPTEU NOT KNOWN NO SUCH NUMBER/STREET NOT DELIVERABLE AS ADDRESSED - UNABLE TO FORWARD A National City Mortgage 3232 Newmark Drive Mimnisburg, OH 45342 Plaintiff Beverly A. Grindley-Griffith P.O. Box 1394 Carlisle, PA 17013 Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL - LAW DOCKET NO.01-1586 Notice to Defend YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE UPON YOU OR A DEFAULT JUDGMENT MAY BE ENTERED 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 CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. You should take this paper to your lawyer at once. If you do not have or know a lawyer, then you should 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) 24%3166 AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defendrse de las quejas expuestax en las paginas siguientes, debe romar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia esrita en persona o por abogado y presentar en la Corte por escfito sus defenses o sus objections a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o nofificacion por cualquier dinero reclamado en la demando o pot cualquier otra queja o compensation reclamados por el Demandante. USTED PUEDE PERDER D1NERO, O PROPIEDADADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTE DEMANDA A UN ABODAGO 1MMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABODAGO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABA JO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL, CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 National City Mortgage 3232 Newmark Drive Miamisburg, OH 45342 Plaintiff Beverly A. Grindley-Griffith P.O. Box 1394 Carlisle, PA 17013 Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL - LAW DOCKET NO.01 - 1586 DEFENDANT'S ANSWER and NEW MATTER · th AND NOW, this S~xth (6) day of February, 2002, comes Defendant, by and through her attorney, Christopher T. Restak, and files this Answer and New Matter in which the following statements are issued in support thereof: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. The averments of this paragraph are conclusions of law to which no responsive pleading is required· To the extent that a responsive pleading is required, it is denied that Defendant is willfully in default of the mortgage agreement. 5. Admitted in part and denied in part. Admitted as to the fact that Plaintiff has attempted to accelerate the mortgage, which has not been paid, by Defendant. The Defendant is without knowledge or information sufficient to form a belief as to the troth of the averments concerning Plaintiff's reasons for attempting the acceleration of the mortgage note. 6. The averments of this paragraph are conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, it is denied that Defendant owes Plaintiffthe full amount of the underlying mortgage. 7. The averments of this paragraph are conclusions of law to which no responsive pleading is required. To the extent that a responsive pleading is required, it is denied that Defendant has refused to comply with the terms of the mortgage. Defendant also denies that she is obligated to pay the full amount of the accelerated mortgage. 8. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment set forth in this paragraph and therefore, the same is denied. 9. Denied. Plaintiffhas failed to satisfy Pennsylvania Homeowner's Assistance Program, Act 91 of 1983. This mortgage is not insured by the Federal Housing Administration. A copy of a letter, from the United States Department of Housing and Urban Development Office, attesting to this fact, is attached, and referenced herein as (Exhibit A). WHEREFORE, Defendant asks this Honorable Court to dismiss Plaintiff's Complaint. NEW MATTER I0. Defendant hereby incorporates paragraphs 1 through 9 of its Answer as though mom fully set forth heroin. 11. Plaintiff has failed to satisfy the requirements of PA Homeowner's Emergency Mortgage Assistance Program, Act 91 of 1983, by failing to file a Notice of Intention to Foreclose, as mandated by Act 6 of 1974 of the Commonwealth of Pennsylvania. The subject mortgage is not insured by the Federal Housing Administration (Exhibit A). 12. Defendant was entitled to a modification agreement, as requested by Lender (Plaintiff) and acceptable to Lender (Plaintiff) should the home not be completed by 11/10/99, as stipulated in the Construction/Permanent Rider, article 3, to the Mortgage Agreement. (Exhibit B), 13. Defendant's builder, Oakwood Custom Homes, Incorporated (Oakwood), should be included in Plalntifffs action, as an additional Defendant. Defendant considers Oakwood to be an indispensable party pursuant to Oakwood's action, in Equity, and docketed in this Court at 02-245. Subject of Oakwood's claim is that of an equitable interest holder in this property. 14. As a consequence of Defendant's pending action, in Equity, against Oakwood Custom Homes, Incorporated, for equitable interest in the property, subject to the mortgage agreement, Defendant avers that any claim, recovery and/or liability, affecting her interest in this property, caimot be adequately adjudicated without the joinder of Oakwood as a necessary party to this action. WHEREFORE, Defendant, Beverly A. Grindley, respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff. Respectfully submitted, ~~Esq. 213 Carlisle Street Hanover, PA 17331 (717) 637-5188 PA Supreme Court I.D.# 81514 Attorney for Defendant VERIFICATION I, the undersigned, Beverly A. Grindley, hereby certify that I am authorized to verify this pleading, on my own behalf. I hereby affirm that the facts contained in the foregoing Answer and New Matter are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Dated: 9_~ - 0 C~ - o 2__. Beverly A. Grindley National City Mortgage 3232 Newmark Drive Miamisburg, OH 45342 Plaintiff Beverly A. Grindley-Griffith P.O. Box 1394 Carlisle, PA 17013 Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL - LAW DOCKET NO.01-1586 CERTIFICATE OF SERVICE I hereby certify that I served a tree and correct copy of the foregoing Answer and New Matter upon Mark J. Udren, Esq. & Associates, located at 1040 North Kings Highway, Suite 500, Cherry Hill, New Jersey 08034, by United States mail service, postage prepaid, on February 6, 2002. ~, Esq. 213 Carlisle Street Hanover, PA 17331 (717) 637-5188 PA. Supreme Court I.D.# 81584 Attorney for Defendant EXHIBIT A .- 81/?'-,/2~02 ~9:4~ '..71177~4258 BEVEFLY GRIFFI"'H P"~r.~E 02 9enn~ylvania S=ate Office The Wanamaker Building Philadelphia, pennsylvania Ms. Beverly Grindley Pest Office Box 1394 Carlisle, PA 17013-6394 Dear Ms. Grindley: Mrs. Clinton received yotu' electremc mail ef January 16, 2000, and has asked the Department of Housing and Urban Development to respond to you since it administers housmg programs. The Philadelphia Homeownership Center is already in receipt of your complaint and has requested the lender involved to investigate the matter further. According ~ the Department's records, your mortgage ia currently not insured by HUD. A warning against insurance has Imen placed in our system until the complaint has been satisfactorily resolved. Should you have any questions regarding the status of your complaint, please contact Joseph Ramsey at (215) 656-0578 on extension 3044. Sincerely, ...... ., ~ , ,, / ~ Mary A~ Wiles ,~ Acting,S~cretary s Representative April i~ .rVatio~l Fair Hous.tg Man~h . "Housing For .4ll Thrattgh Justice For qll" EXHIBIT B C ONSTRUCT~ 0 N~PEflMANENT RIDER :-- ~ .. - THIS CONSTRUCT1ONJ~ RIDER is made this ~.9~t~ GO'/of end 1~ Incor~m~tad into end sh~ll be'dnamed m am~ and supplement ~ M~age, D~ 0f T~ or Sanity O~ ~a 'S~ I~ment'} of ~e eamedate given by ~a u~igned (~e "8o~wer') to ~ ~e~a Note to ~A~ c~ ~ctgugi Co~ {~o'Lend~'} of (Property Addrese Inolud~n; Count} ADDmONAL COV~IANTs: In addition to ~he covenants and agre~men~ n~de In the Security *1. - Bon*ower and Lander hav~ nxeamed a C.~nat~atlon/Pen~anant L~__~,~ Agreement of even de~e. · ' The tefn~ of ~ld Construct]on/Permanent Loan Agreement urdesa 0therw~e Stated era k~,oq;~areted ~ . , ,~..hereln by ant forth In the Constructton/Pern~nant Loan Agreement on the rea[ property de~lhad In the Se~u~ty ." , 3. C~flat~'tJ~-'tJon of the realdenne eot out above shall be completed on or before [~./20/~.~ 9g , · If cen~tflJetJofl ~ not nompletad on ti~t date, uoon re~ue~t al Lender, I~orrower agm~ exoaute I modiflcn~n agreement in form end substance satiefantow to lender. '4~ BOrrOwer egrela t~t dutlng t~e time Cf the coflatrucden of the Improvements aG set forth in · the Canoa~loeg~erm~ Lmm Agree~en~ Interest may win be oh~rged Qn ti~ ern~uttte et the nutuOlty dlsbumed. UIx~n oompletlon of oor~tmatlon o! the tm~mvemente, but I~ any event no later than 3.3./~o/3~ , , whether ot no[ the construction of ~ha Impr~vement~ b eomg~e~ed, ~o~r agreea te make pagmen~ of prlnelpit and l~tereat ~et forth In the Nom. 6. I~o~wm' eg~ee~ tha~ tho proeeed~ of tim teen evidenoed by the Note wm be dlel~xsed i~um~ant to the Cmte~ruol~nn/P~m~lent Loan Agreement nnd ~frower fvrt~t ~F'eu m provide Lantirn all doeuma~taUon required under the Cormuuoflon/Pem~nent Loan Agreement pdor to reque~ng e. Barmwe~ agree~ ~hat d~- Cenlmmtion/Pem~a~enc ~d~r will be null and void upon of the eo~mm~-~ion af ~ ~mv~ ~r ~ beg~g ~f ~ ~o~fl~ gl ~, ~ fo~ ~ ~ Note ~ ~ ~y Mnt er ~ t~e ~e ~ ~ solo ~ w~ ~ ~ ;.~ ~ ~er~ ~ MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage Plaintiff V. Beverly A. Grindley Defendant ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DIVISION i Cumberland County . .- .- i NO. 01-1586 Civil Term . PI,AINTIFF'S REPI,Y TO OAKWOOD CUSTOM HOMES, INC.'S PETITION TO INTERVEN-E Plaintiff, National City Mortgage, by its Attorney, Mark J. Udren, Esquire, responds to the Petition to Intervene by Oakwood Custom Homes, Inc.filed in the above captioned mortgage foreclosure case, averring as follows: PARTIES 1. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averment and it, therefore, is deemed denied. 2. Admitted. 3. Admitted in part. Denied in part. It is admitted only that Defendant Grindley is an adult individual and that her last known address is P.O. Box 1394, Carlisle, PA 17013. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the remaining averments and they, therefore, are deemed denied. PRIOR DECISIONS 4. Admitted. By way of further answer. Defendant Beverly Grindley's Motion for Summary Judgmem was denied and Plaintiff's Motion for Leave to File Amended Complaint was granted. A tree and correct copy of the Order is attached hereto as Exhibit "A' and made part hereof. FACTUAL BACKGROUND 5. Admitted. By way of additional answer, the property also is known as Lot 2 Crossroads School Road, Carlisle, Pennsylvania 17013. 6. Admitted. True and correct copies of the Mortgage and Note are attached as Exhibits "B" and "C' respectively and made part hereof. 7. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averment and it, therefore, is deemed denied. 8. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averment and it, therefore, is deemed denied. 9. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averment and it, therefore, is deemed denied. 10. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averment and it, therefore, is deemed denied. 11. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averment and it, therefore, is deemed denied. Moreover, the memorandum of understanding, presumably is a document, if existent, speaks for itself. 12. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. By way of further answer, the document, if existent, speaks for itself. 13. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. By way of further answer, the document, if existent, speaks for itself. 14. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. By way of further answer, the document, if existent, speaks for itself. 15. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. By way of further answer, the document, if existent, speaks for itself. 16. Admitted in part. Denied in part. It is admitted only that Grindley retained Christopher T. Restak, Esquire. The remaining averments are denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the remaining averments and they, therefore, are deemed denied. Moreover, regarding what was settled or not, the document, if existent, speaks for itself. 17. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. 18. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. 19. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. 20. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. 21. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. 22. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. Moreover, the documents speak for themselves. 23. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. 24. Denied, After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore are deemed denied. 25. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore are deemed denied. Moreover, the document, if existent, speaks for itself. 26. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore are deemed denied. Moreover, the document, if existent, speaks for itself. 27. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. Moreover, the document, if existent, speaks for itself. 28. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. 29. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. 30. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. Moreover, the documents speak for themselves. Plaintiff cannot advise whether or not amounts provided in the alleged agreement are sufficient to payoff Plaintiff as Oakwood Custom Homes, Inc. refuses to disclose the terms of the alleged agreement. Plaintiff recently provided a payoff statement to Counsel for Defendant Grindley. 31. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. By way of further answer, the document, if existent, speaks for itself. 32. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. 33. Admitted in part. Denied in part. It is admitted only that Defendant Grindley has no adequate defense to the action in mortgage foreclosure as construction admittedly was not completed at the required time and the mortgage debt was accelerated in accordance with the terms of the Mortgage Agreement. The remaining averments are denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments regarding what Oakwood Custom Homes, Inc. "believes" and its alleged equitable interest, created in an alleged document which it refuses to disclose, and those allegations, therefore, are deemed denied. 34. Denied. This paragraph contains a conclusion of law to which no response is required and it, therefore, is deemed denied. In any event and by way of further answer, Oakwood is not a party to the mortgage; the personal representative, heir, or devisee of a deceased mortgagor; or the real owner of the property and therefore is not an appropriate party to the mortgage foreclosure proceeding. Pa.R.C.P. 1144. Any interest Defendant may possess, based upon an alIeged November 15, 2001 agreement which it refuses to produce, is subsequent to the interest of Plaintiff which arose by instrument executed on July 19, 1999 and duly recorded on July 21, 1999. See Exhibit "B".Moreover, Oakwood Custom Homes, Inc.does not seek to participate in the mortgage foreclosure proceedings, but rather seeks an injunction with respect to those proceedings without setting forth facts or legal authorities sufficient to support its position that it is entitled to the same. WHEREFORE, Plaintiff respectfully requests that the Honorable Court deny Oakwood Custom Homes, Inc's Petition to Intervene with prejudice, deny its request for a stay of foreclosure proceedings and award Plaintiff costs and fees incurred in responding to this Petition. Respectfully submitted, MARK J. UDREN & ASSOCIATES By: Mark J. Udren, Esquire Attorney for Plaintiff/Movant NATIONAL CITY MORTGAGE,: Plaintiff : Vo BEVERLY A. GRINDLEY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CML ACTION - LAW NO. 01-1586 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT BI,FORE HOFFER. P.J.. and OLER. J. ORDER OF COURT AND NOW, this 17th day of December, 2001, after careful consideration of Defendant's Motion for Summary Judgment, and of Plaintiff's Motion for Leave To Amend Complaint, Defendant's Motion for Summary Judgment is denied and Plaintiff's Motion for Leave To Amend Complaint is granted. BY THE COURT, 40J. Udren, Esq. North Kings Highway JSuite 500 Cherry Hill, NJ 08034 Attorney for Plaintiff Peter J. Russo, Esq. .5010 East Trindle Road Suite 200 Mecharficsburg, PA 17050 Attorney for Defendant ~rc - A~ ~ co,m,'~. ~t.LoM'Agr~emm~ un'as Odv~. mt~.~ ~.,.-,......-~.,,......... . .. ma . -- -&~, .... ALaen,O4vmmmflv, lnmmstadywJllbachargedoflOuatnotmmoftho JAN. 4. 2002 ¢:5IPMNATIONAL CITY ~/04/02 l~Rt J,~02 FAX 1 9.37 910 1~7 NC:NC DOC AD~N NO. 3990 2/5 0000S4&493 snd iU suKesso~ ~d sssi~ns.. BORROWER'S i~OM~ TO PAY; h rcwrn for a/om r~:efved f~om Lender, Dom)wff Momis~s to t~, the l:rluc~d sam of ~ (U',S. $ 3.3,7,792.D0 ), pals ioMrest, w ~o ord.' of Lembn'. Inesmst wi~ be ;bm*ged ~ unpaid pri~, bomd~e,dseeofdfsbmmnentof~helompmccedsby/Jnc~.~dsc~rdof ~ &WI) Szv~f. zzmr~$ lxr~mt ( 7.0'75 ~) p~ yeur undl ~e full nmount of prfn~lxd has he~ paid. 4. MANN]g~ O~ PAYMENT Borrov~r ~ meke a pnrmoni of ~ and in~rost W land-' on me tim d~ o~ etch mourn beL~mb~ on 2000 , Ao~, ~ .nd m~.~ xenmnms on tl~ tim day ~ $. BOIUI~'$ RIGHT TO PILEPAY BtWBIT C JAN. 4. 2002 4:5IPM NATIONAL CITY NO. 3990 P. 3/5 O1/O4/O2 Fill 12:O5 FAX 1 9'W 910 lS$? NCMC DOC &I)I~IN ~-o Lmder m giw no~i~ m od~r permns u'l~ mmono due hav~,n~ I~n l~dd, JAN, 4,2002 4:5IPM NATIONAL CITY 01/04/02 NC~C DOC ,~tDl~Ilt NO. 3990 00095444S~ P. 4/5 ~oo~ C ONSTRUCTIOBr/PL'RblAN'ENT ADDIENDU~ TO ~a~u 1~,"1'~ NOTE ADDITIONAL COVE3qAIV~$. In add~on'm the cove~, ag~,~-,w,.~. InCI obligations se~ om; in tho Note, !}o~ mid L~der fgxlhet mve~t aim ~ as follov~: 1. ~ gonOw~ and Lender h~ve executed a C0mum~o~,~em L0m Agreemc~ of ev~n daxe he. wide. The ~ of raid Cousm~lo~/Pmmm= L~a ,~t am fneorlMr'amd hendn by. -~..,~:~. 2, B~,ower, in owing', 'will ~ a residmace in ac;olra.,,, _,~_ wtYJl ~ Fians Gn4 St~cadmis set fordt In the on flirt amounts ac~ dJsbox~d, and o~ tmd~r The Note. i~oll, owat. ait~es to make pltymmn~ of lnl~at o~ly an t~m day of ~ery momb be[in~g on the gui; (lsO day of ~lm a~ntb followlng, th~ ~st disbur~ of tl~ l~nxs=~ls of T~l~n con~letlon of ~e ~ Pe~'lod, t~t in any evens m la,er than ' 2~./~ 0/~.~'~ Ilot~w~ s[~"es to make payment of princ~ and inte~sT as s~ forth in t~e Not~. 3, Yo~ w~ll ~e p4~3ni~zsd m ptepKy Gill ~' my ~ o! tbs ~lmlJsld lam b,,t~*.e =t any time l:oon noti~,izzK db= Nocehold~ in writlns, HOW~VI~, if t prepayment is made it' ~e ~ ~ ~ p~t (~ '~ay~ F~"). ~ ~ ~ ~e ~ of ~ ~ ~ ~ ~ ~ Y~ ~ ~ ~ ~ ~ ~ ~, ~ ~ ~of ~ ~ ~t ~ ~ ~pl~ ~ ~h~ C1342P! Pqe 1 of 2 JAN. 4. 2002 4:52P]~ NATIONAL C~ITY o:1.~04/02 IA),I 't~:0~ FAX I NC'MC l)OC A~IN NO, 3990 5/5 Addendum to Fuu~d It~u~ No~ wf/I b~ null ~d void BY ~IGI.4ING BELOW, flormw~ lu:ce~s end ~ m d~ m,'ms ~d .coveoza~ c~,~,,M ia ~ Ctmmvcd~ AA_,~,~Mvm ~v F~d ~ NOM. (Se/J) (Se.l) ~t, zowe~ Bom~we~ MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856482-6900 National City Mortgage Plaintiff ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DIVISION ! Cumberland County .- Beverly A. Grindley ! NO. 01-1586 Civil Term Defendant : ~'S BRIEF IN SUPPORT OF REP~A~USIOM HOMES, INC.'S PETIIIOJSLT~NE I. SIATEMENTO~S On March 19, 2001, Plaintiff filed the instant action in mortgage foreclosure against the Defendant for her breach of the mortgage agreement in failing to ensure construction of the dwelling to be built on the real estate was complete by November 10, 1999 as required by the Mortgage. See Exhibit "B". II. S T ATE MENTDEIHEQI. JESTIO NS INV~ A. Is a contractor, not the owner of real estate or a party to the mortgage agreement, a proper party to a mortgage foreclosure action instituted by the mortgagee against the mortgagor and owner of real property? B. Does a builder with an alleged equitable interest in real property which arose subsequent to a recorded mortgage entitled to a injunction staying mortgage foreclosure proceedings filed against the mortgagor with whom it has a dispute? III. ARGUMENT A. A builder with an alleged equitable interest in real property which arose subsequent to a recorded mortgage is not a proper party to an action in mortgage foreclosure instituted by the mortgagee against the mortgagor and owner of real property. Pa.R.C.P. 1144 mandates the proper parties to an action of mortgage foreclosure. The rule provides as follows: (a) The plaintiff shall name as defendants (1) the mortgagor; (2) the personal representative, heir or devisee of a deceased mortgagor, if known; and (3) the real owner of the property, or if the real owner is unknown, the grantee in the last recorded deed. Pa.R.C.P. 1144. An action in mortgage foreclosure is in rem and "shall not include an action to enforce a personal liability." Pa.R.C.P. l141(a). Thus, the rules of civil procedure preclude a defendant in mortgage foreclosure action from joining an additional defendant whose purported liability to either mortgagee or original defendant is based upon an assumpsit claim. Signal Consumer DiscountA2xmapany v. Babuscio, 257 Pa. Super. 101,390 A. 2d 266 (1978). It is appropriate to refuse a petition for intervention in a mortgage foreclosure suit where a party does not show the alleged agreement upon which he relies in any manner affects the right or obligation to foreclose or the foreclosure itself, or how, by the foreclosure, any right of his will be injured. Real Estate Land Title & Trust Co. v. West Chester S/reetRaJlwag Co., 299 Pa. 76, 149 A. 84 (1930). Furthermore, the equities with respect to this case weigh heavily in favor of denying Oakwood Custom Homes Inc.'s Petition to Intervene (hereinafter "Petition to Intervene"). As a preliminary matter, the Petition to Intervene addresses a common concern that the interest of Oakwood Custom Homes, Inc. (hereinafter "Oakwood') will be extinguished by foreclosure upon the mortgage which is prior in time to its alleged interest. The rights of creditors in lien positions subsequent to first are amply protected by rules which require notice of the sale be sent to them so that, if desired, they may prevent their interest from being divested by purchase of the premises at Sheriff's Sale. See Pa. R. C. P. 3129.1 (b). Moreover, the Petition to Intervene seeks to unduly delay the adjudication of the rights of the parties to this case and, as a result, this court should deny it. Pa. R.C.P. 2329 (3). Finally, we submit, that Oakland Custom Homes, Inc. (hereinafter "Oakland") seeks only to enjoin, rather than participate in, Plaintiff's mortgage foreclosure case. In paragraph 32 of its Petition to Intervene, Oakwood states that it "intends to file a motion for judgment in its action seeking specific performance and intends on listing the motion for argument as soon as possible.' Paragraph 28 alleges that claim is docketed, presumably in this court, at No. 02.~ 245. Attached to the Petition to Intervene is the Complaint in that action, not any pleading which the petitioner will file in this action if permitted to intervene as mandated by Pa.R.C.P. 2328. Based on the foregoing procedural and substantive deficiencies in the Oakwood Custom Homes, Inc. 's Petition to Intervene, Plaintiff respectfully requests that the Petition be denied with prejudice. B. A builder with an alleged equitable interest in real property which arose subsequent to a recorded mortgage is not entitled to an injunction with respect to mortgage foreclosure proceedings filed against the mortgagor with whom it has a dispute. Injunctive relief is an extraordinary equitable remedy and may only be granted if a party has established a clear right to the relief requested. DiLucente Corp. v. Pennsylvmlia RoofingF_~o., 655 A.2d 1035 (Pa. Super. 1995). For a party to prevail in a petition for a permanent injunction, the party must establish that his right to relief is clear, that there is an urgent necessity to avoid injury which cannot be compensated for by damages, and the greater injury will result from refusing rather than granting the relief requested. P~.S~v. Peamsylv~t~ Commission, 669 A.2d 1105 (Pa. Cmwlth. 1996). In this case, Oakwood refuses to produce the memorandum of understanding upon which it relies it to assert its right to relief. In any event, the memorandum of understanding at best establishes Oakwood's fight to the real property as against Defendant Grindley, not Plaintiff. "In camera" review of the memorandum cannot establish its right as against Plaintiff who was not a party to it. Furthermore, Oakwood is not damaged at all by permitting Plaintiff to proceed with mortgage foreclosure, as Oakwood may bid for the property at sheriff's sale to protect its interest. The fact that Oakwood prefers to force Defendant Grindley to quit-claim her interest in the real property to Oakwood and force Plaintiff to proceed against Defendant Grindley for the funds (Petition to Intervene, paragraph 30) is without legal significance. Plaintiff is entitled to rely upon its security for payment of the loan proceeds without interference by potential subsequent, nongovernmental lienholders. Thus, it has been held that purchase of a mortgage by a judgment creditor to prevent discharge of his judgment by foreclosure on a mortgage is not a basis to enjoin a mortgage foreclosure. Cummings v~ LehiglLBxick~e~ Inc. 11 Cumb. L.J. 70 (Pa. Corn, Pl. 1960). Finally greater injury will result if the relief requested is granted, because Plaintiff in effect will be wrongfully prevented from exercising its rights under the mortgage agreement and, in effect, forced to look to the personal liability of Defendant Grindley, rather than the security for which it bargained. Finally, assuming Oakwood can overcome these substantive obstacles, it is required to post bond. "Except when the plaintiff is the Commonwealth of Pennsylvania, a political subdivision or a department, board, commission, instrumentality or officer of the Commonwealth or of a political subdivision, a preliminary or special injunction shall be granted only if (1) the plaintiff files a bond in an amount fixed and security approved by the court...." Pa.R.C.P. 1531 (b). Under the circumstances of this case, we submit that the amount of bond must be equivalent to the current payoff for the mortgage, with an additional allotment for interest at the contract rate, fees and costs which continue to accrue. IV. CO~~ As set forth above, the Petition to Intervene has been interposed for the purpose of delay only. Oakwood Custom Homes, Inc. cannot affect the outcome of this.mortgage foreclosure proceeding between Plaintiff as mortgagee and Defendant as mortgagor and record owner of real property. Oakwood Custom Homes Inc.does not have and, therefore, cannot set forth any claim against the mortgagee related to the initial mortgage trasnsaction. Moreover, Oakwood Custom Homes, Inc. does not set forth any defense to the propriety of the Mortgage foreclosure action. Finally and for the reasons set forth hereinabove, the Petition to Intervene must be denied with prejudice. Respectfully submitted, MARK J. UDREN & ASSOCIATES Mark J. Udren, Esquire Attorney for Plaintiff ~ ER I F LC A ?LLQ N Mark J. Udren, Esquire, hereby states that he is the attorney for the Plaintiff, a corporation unless designated otherwise; that he is authorized to take this Verification and does so because of the exigencies regarding this matter, and because Plaintiff must verify much of the information through agents, and because he has personal knowledge of some of the facts averred in the foregoing pleading; and that the statements made in the foregoing pleading are true and correct to the best of his knowledge, information and belief and the source of his information is public records and reports of Plaintiff's agents. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Dated: Id~ J M k J' Esquire ar U ren, MARK J. UDILEN & ASSOCIATES MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage Plaintiff Beverly A. Grindley Defendant ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DIVISION i Cumberland County .- ~ NO. 01-1586 Civil Term .- I, Mark J. Udren, Esquire, hereby certify that I served true and correct copies of Plaintiff's Reply to Oakwood Custom Homes, Inc. 's Petition to Intervene and Brief in Support thereof upon the following person named herein at their last known address or their attorney of record. xxxxxx Regular First Class Mail Certified Mail O..~her (certificate of mailing) Date Served: March [ ,2002 TO: Christopher T. Restak, Esquire 213 Carlisle Street Hanover, PA 17331 Attorney for Defendant C. Granger Bowman, Esquire 114 N. Second Street Harrisburg, PA 17101 Attorney for Petitioner MARK J. UDREN & ASSOCIATES By:. Mark J. Udren, Esquire Attorney for Plaintiff/Respondent NATIONAL CITY MORTGAGE, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CIJMBER.i.~/X2qD COLrNTY, PElqI~'SYLVhAIIA v. : CIVIL ACTION - LAW : NO. 01-1586 CIVIL TERM BEVERLY A. GRINDLEY, Defendant ORDER OF COURT AND NOW, this llth day of March, 2002, after considering the Plaintiff's reply to the petition to intervene, and having heard argument thereon, the petition of Oakwood Custom Homes, Inc., to intervene in this action is denied. The temporary stay previously imposed is lifted. By the Edward E. Guido, Lorraine Romolini, Esquire Attorney for Plaintiff /~thony Potter, Esquire Attorney for Oakwood Custom Homes, Inc , Srs PRAECIPE I~OKLISTING CASE ]~OR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Date. National City Mortgage Plaintiff V. Beverly A. Grindley Defendant COURT OF COMMON PLEAS CIVIL DIVISION Cumberland County NO. 01-1586 Civil Term 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) For Plaintiff: Address: Mark J. Udren, Esquire 1040 N. Kings Highway Suite 500 Cherry Hill, NJ 08034 (b) For Defendant: Christopher T. Restak, Esquire 213 Carlisle Street Hanover, PA 17331 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: May 22, 2002 Dated: March/.~ , 2002 MARK J. UDREN & ASSOCIATES By: ~'~ Mark J. Udren, Esquire Attorney for Plaintiff/Movant MARK J. UDREN & ASSOCIATES BY: Mark J. Udren, Esquire ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE SO0 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage Plaintiff v. Beverly A. Grindley Defendant(s) ATTOP/TEY FOR PLAINTIFF i COURT OF COMMON PLEAS i CiVIL DIVISION !Cumberland County iN0.01-1586 Civil Term PLALNTI~R~PLY TO DEF~IAN~NEW~MATTEK 10. Plaintiff incorporates by reference paragraphs 1 through 9 of the Complaint herein as though fully set forth at length. 11. Denied. This paragraph contains a conclusion of law to which no response is required and it, therefore, is deemed denied. By way of further response. Act 6 does not apply as this is not a residential mortgage as defined by Act 6. 41 P.S. Section 401, et seq. Upon information, Defendant resides at 58 South Corporation Street, New~ille, Pennsylvania. The premises being foreclosed upon is situate at Lot 2 Crossroads School Road, Carlisle, Pennsylvania. Moreover, Act 6 does not apply to mortgages with original principal amounts in excess of $50,000.00. The original principal amount of the mortgage is in excess of $50,000.00. See Mortgage attached as Exhibit "A" and made part hereof. with respect to Act 91 of 1983, even assuming that this loan was not insured by the Federal Housing Administration as originally contemplated, it was not so insured because it is not residential property. Because the premises is not the principal residence of the mortgagor and not occupied, compliance with Act 91 of 1983 is not required. See 35 P.S. Section 1680.401c(a) (1) and (2). Finally, the fact that the mortgage was not insured as contemplated is a further breach of the mortgage agreement. 12. Denied, as the document speaks for itself. By way of further response, see Exhibit "A". Modification is an option provided by the Construction Rider to Plaintiff. Plaintiff did not elect to proceed by modification of the mortgage agreement. 13. Denied. This paragraph contains a conclusion of law to which no response is required and it, therefore, is deemed denied. In any event and by way of further answer, see Plaintiff's Reply to Oakwood Custom Homes, Inc.'s Petition to Intervene and Brief in Support thereof, attached as Exhibit "B" and made part hereof. Any alleged interest of Oakwood is secondary to that of Plaintiff as admitted in paragraph 14 of Defendant Grindley's Answer to the Amended Complaint. Moreover, after oral argument on March 11, 2002, the Petition to Intervene was properly denied by the Honorable Edward E. Guido. 14. Admitted in part. Denied in part. It is admitted only that the potential interest of Oakwood Custom Homes, Inc. is "subject to" Plaintiff's Mortgage, as admitted by Defendant Grindley in this paragraph. The remainder of this paragraph constitutes a conclusion of law to which no response is required and it, therefore, is deemed denied. In any event and by way of further answer, see Plaintiff's Reply to Oakwood Custom Homes, Inc.'s Petition to Intervene and Brief in Support thereof, attached as Exhibit "B" and made part hereof. Moreover, after oral argument on March 11, 2002, the Petition to Intervene was properly denied by the Honorable Edward E. Guido. WHEREFORE, Plaintiff prays and respectfully requests that the Honorable Court deny and dismiss, with prejudice, Defendant's New Matter, and award judgment in Plaintiff's favor as prayed for in its Amended Complaint. MARK J. UDREN & ASSOCIATES By: Mark J. Udren, Esquire Attorney for Plaintiff MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. ~INGS HIGHWAY, SUITE CHI~RRY HILL, NJ 08034 National City Mortgage plaintiff Vq Beverly A.._Grindley Defendnnt ATTORNEY FOR PI~AINTIFF COPy ' COURT OF COMMON pT : CIVIL DIVISION : Cumberlnnd County :' NO. 01-1586 Civil Term AND NOW, to wit, this day of ,2001, upon consideration of Oakwood Custom Homes, Inc's Petition to Intervene and PI~_ s Reply to Oakwood Custom Homes, Inc's Petition to In~rvene Motion for Summary Judgment and supporting doc~ments thereW, the Court hereby ORDERS AND DECREES flint Oakwood Custom Home~ Inc.'s Petition to Intervene is DENIED, with prejudice. BY THE COURT: EXHIBff B B TIBIHX~ MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE CHR~RRY HII,L, NJ 08034 National City Mortgage Plaintiff Beverly A.~Grindley Defendant ATFORNEY FOR PLAINTIFF COURT OF COMMON PI.RAS CIVIL DIVISION Cuml~and County NO. 01-1586 Civil Term PI,AINTIFF'S RIi',PI,y TO OAKWOOD CUSTOM HOMRS, INC.',g PRTfi'ION TO IN'rKRVR, N'ie. plaintiff, National City Mortgage, by its Attorney, Mark J. Udren, Esqu~e~., responds to the Petition to Intervene by Oal/wood Custom Homes, Inc.filed in the above captioned mortgage foreclosure case, averring as follows: PARTIES 1. Denied. After reasonable investigation, p)aimiff is without sufficient information to form a belief as to the veraci~ of the within averment and it, therefore, is deemed denied. : 2. Admitted. 3. Admitted in part. Denied in part. It is admitted only that Defendant C_n4ndley is an adult individual and that her last known address is P.O. Box 1394, Carlisle, PA 17013. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the remaining averments and they, therefore, are deem~ deai¢~l. PRIOR DECISIONS 4. Admitt~. By way of further answer. Defendant Beverly Grindley's Motion for Summary Jud~oment was denied and Plainti~s Motion for Leave to File Amended Complaint was granted. A trt~ ~ corr~t copy of the Order is attach~l hereto as Exhibit 'A" and made part hereof. FACTUAL BACKGROUND 5. Admitted. By way of additional answer, the property also is known as Lot 2 Crossroads School Road, Carlisle, Pennsylvania 17013. 6. Admitted. True and correct copies of the Mortgage And Note are attached as Exhibits ~B" and 'C" respectively 'and made pan hereof. 7. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the withi~ averment Anti it, therefore, is 8. Denied. After reasonable investigation, Plaiuti~ is without sufficient information to form a belief as to the veracity of the within averment and it, therefore, is 9. Denied. After reasonable invesU'gation, Plslveiff is without sufficient information to form a belief as to the veracity of the within averment and it, therefore, is deemed denied. 10. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within avermeut and it, therefore, is 11. Denied. After reasonable investigation, Plainfi~ is without sufficient information to form a belief as to the veracity of the within averment and it, therefore, is deemed denied. Moreover, the memorandum of,mrlerstanding, presumably is a document, if existent, speaics for itself. 12. Denied. After reasonable investigation, PlAintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. By way of further answer, the docnm~i, if existent, speaks for itseff. 13. Denied. After reasonable investigation, PlainfiTf is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. By way of further answer, the documeut, if existent, speaks for itself. 14. Denied. After reasonable investigation, plaintiff is without sufficient information to form a belief as to the veracity of the within ~averments ~nd they, therefore, are deemed denied. By way of further answer, the document, if cxisteut, speaks for itself. 15. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. By way of further answer, the document, if existent, speaks for itself. 16. Admitted in part. Denied in part. It is admitted only that Grindley retained Christopher T. Restak, Esquire. The remaining averments are denied. At~ reasonable Anvestigation, plaintiff is withollt sufli¢ie~ inforlllatioll to form a belief as to the veracity of the remaining averments and they, therefore, are deemed denied. Moreover, regarding what was settled or not, the document, if existent, speak~ for itseff. 17. Denied. After reasonable investigation, I}lnintiff is withollt suff¢iellt information to form a belief as to the veracity of the w~thin avermellts and_ they, therefore, are 18. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief aa to the veracity of the within avermenla and they, therefore, are deemed denied. 19. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. 20. Denied. After reasonable investigation, 'Plaintiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are 21. Denied. APter reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within ayerlllellts and they, therefore, are deemed denied. 22. Denied. After reasonable investigation, Plainti~ is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. Moreover, the documents speak for themselves. 23. Denied. After reasonable investigation, Plaintiff is without suff¢ient hiformation to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. 24. Denied. After reasonable investigation, Plaintiff is without sufficient information to form a belief as to the veracity of the within averments,, ,nd they, therefore, are deemed denied. 2~. Denied. After reasonable investigation, pl~in6ff is without sufficient informa~on to form a belief as to the veracity of the within averments nnd they, therefore, are _- ,~leemed denied. Moreover, the document, if existent, spe~k~ for itself. 26. Denied. After reasonable investigation, plmiraiff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. Moreover, the document, if existent, speak,~ for itself. 27. Denied. After reasonable investigation, Plainffff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. Moreover, the document, if existent, speaks for itself. 28. Denied. After reasonable investigation, Pl~intlff is without sufficient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. 29. Denied. After reasonable investigation, l~lnlntiff is without sufl~ci~ information to form a belief as to the veracity of the within averments and they, therefore, are 30. Denied. After reasonable investigation, Plnintiff is without stlffi¢ient information to form a belief as to the veracity of the within averments and they, therefore, are deemed denied. Moreover, the documents speak for themselves. Plaintiff cannot advise whether or not amounm provided in the alleged agreement are sufficient to payoff Plnintiff as Oakwood CusWm Homes, Inc. refuses to disclose the terms of the alleged agreement. Plaintiff recently provided a payoff statement to Counsel for Defe~d_nnt Grindley. 31. Denied. After reasonable investigation, Plainfi~ is without sufficient information W form a belief as to the veracity of the within averments nnd they, therefore, are deemed denied. By way of further nn.~wer, the document, if existent, speaks for itself. 32. Denied. After reasonable investigation, Plainti~ is without sufficient information to form a belief as to the veracity of the within iverments and they, therefore, are 33. Admitted in part. Denied in part. It is admired only that Defcn~dant Grindley has no adequate defense to the action in mortgage foreclosure as com~uction admittedly was not completed at the required time and the mortgage debt was accelerated in aCCordance with the terms of the Mortgage Agreement. The remaining averments are denied. After reasonable investigation, plaintiff is withoWt SU~.Ciellt information to form a belief as to the veracity of __the within averments regarding what Oakwood Custom Homes, Inc. "believes" and its alleged equitable interest, created in an alleged document which it refuses to disclose, and those allegatiom, therefore, are deemed denied. 34. Denied. This paragraph co~in~ a conclusion of law to which no response is required and it, therefore, is deemed denied. In any event and-by way of further answer, Oakwood is not a party to the mortgage; the personal representative, heir, or devisee of a deceased mortgagor; or the real owner of the propervj and therefore is not an appropriate party to the mortgage foreclosure procee~in~ Pa.R.C.P. 1144. Any interest Defendant may possess, based upon an alleged November 15, 2001 agreement which it refuses to produce, is subsequent to the interest of Plaintiff which arose by instrumel~ exectRed on July 19, 1999 and duly recorded on Snly 21, 1999. See Exhibit "B".Moreover, Oakwood Custom Homes, In¢.does not seek to participate in the mortgage foreclosure proceedings, but rather seeks an inj~metion with respect to those proceedings without setting forth facts or legal authorities sufficient to support its position that it is entitled to the same. WI:I~RI~I~ORI~, plnlntiff respectfully requests that the Honorable Court deny Oakwood Custom Homes, Ine's Petition to Intervene with prejudice, deny its request for a stay of foreclosure proceedings nnd award Plaintiff costs ~ fees inolrred in responding to this Petition. Respectfully submitted, MARK J. UDREN & ASSOCIATES By: ~ Mark J. :Udren, Esquire Attorney for Plaintiff/Mov~nt NATIONAL CITY MORTGAGE,: Plaintiff ' BEVERLY A. ORINDLEY, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY; PENNSYLVANIA CIVIL ACTION- LAW NO. 01-1586 C1VILTERM IN RE: DEFEND~'S MOTION FOR SUMMARY JUDGMENT and PLAINTIFF'S MOTION FORi LEAVE TO AMEND COMPLAINT - ORDER. OF COURT J. Udren, Esq. North Kings Highway 500 Cherry Hill, NJ 08034 Attorney for Plaintiff Peter J. Russ0, Esq. AND NOW,' this :'17~ of DSf~ndant's M0fion :f6ff- Sumrnnry Judgment, and'of Plaintiff's"Motion foi LeaVe To Amen~t Compl~ain~-Defendant s Motion for Summary Judgment is denied and Plaintiffs Motion for Izeave To Amend Complaint is granted. BY THE COURT,' ._ :' - ..~/(_!:. ) :,.: ,:' ~ -'. -. Suite 200 ........ ' Sb g;'PA'17050 M~chafiic ur Attorney for Defendant .JAN. 4. 2002 4:51PM NATIONAL CITY NO. 3990 P, 2/5 0~/04/0~ PR! ~2:0~ ~A,~ ! 93? 9~0 ~67 NOf¢ DOC ADMI'N P'NpeW,,'MmW,,] . (~[B ~atnD Srg'~g'Z'~Bf q[~t~STSA, ItD laEV3tlr limmnBD MS:HLTT ~ · 00/3.0O pm~nt ( ?.r;s f~) p~r ~ur mil me M mourn ofprbxaPel ~' be~ peid- 3. LmRCjIkHSE TO pA,r SBCTiBKD : 4. MA~N~ ~ PAYM]D~ EXHIBIT O .JAN. 4. 2002 4:517M RA?IONAL CITY NO. 3990 ?. 3/5 01/04/02 FR~ ~2:0~ FAX ~ 007 910 NC'dC DOG A.MfIH I~005 · '~. ~IU~OWBIi~ FAILUBR 'TO PAY ',, 2t, o~T penn~ ( .4.00 BY .ql(31~qO B~LOW, B,~w~- ac~ Iod nfreos W t~o 2ms'and ...~ conum~ in ~ls N~o. . JAN. 01/04/02 4. 2002 4:51PM NATIOHAL CITY I~RX 12:0~ F.~X I g~? OZO 1SS? N0.3990 P. 4/5 ~oo4 000~S444~qB CONSTRUCTION/Fn~ANENT ADDENDUM TO ~ RATB N01~ (dm 'Linde) o~ eve~ dam hsmyld~ .JAN, 4. 2002. 4:527M NATIONAL CITY 0L/O4/02 FI~I ~:o~ ~A3C ! 037 0~0 ~SS? Al)Gl( NO. 3990 ?. 5/5 (Se,I) (3mi) Pap2 o~2 MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY NILL, NJ 08034 =- National City Mortgage . Plainti~ Beverly A['C_~ndley _ Defenrl~m ATFORNEY FOR PLAINTIFF / COURT OF COMMON PLEAS CIVIL DIVISION O,mherlahd County '-' NO. 01-1586 CiVil Te~m : PI,AINTIFF'S BRIF, F IN SUPPORT OF RI~PI,Y TO OAICWOOD CUSTOM HOMF,~g, INC.'S PF, TITION TO INTF, RVF, NF,, ' I. STATF~M'ENT OF FACTS On March 19, 2001, Plaintiff filed the instant action in mortgage foreclosure against the Defen~nt for her breach of the mo~gage agreemen~ in f~iling to ensure construction of the dwellin~ to be built on the real estate was complete by November 10, 1999 as required by the Mortgage. See Exhibit "B~. II. STATI~,MF, NT OF THF~ QUESTIONS INVOIArF, D A. Is a contractor, not the owner of real estate or a party to the mortgage agreement, a proper party to a mortgage foreclosure action instituted by the mortgagee agaimt the mortgagor and owner of real property? B. Does a builder with an alleged equitable interest in real property which arose subsequent to a recorded mortgage entitled to a injunction stayln,o mortgage foreclosure proceedings filed against the mortgagor with whom it has a dispute? m. ~.RGUMENT I. A builder with an alleged equitable interest in real property which arose subsequent to a recorded mortgage is not a proper party to an action in mortgage foreclosure instituted by the mortgagee against the mortgagor and owner of real property, Pa.R.C.P. 1144 mandates the proper parties to an action of mortgage foreclosure. The __rule provides as follows: . (a) The plaintiff shall name as defendants : (1) the mortgagor; (2) ilie personal ~presentative, heir or devisea of a deceased mortgagor, if known; and (3) the real owner of the property, or if the real owner is unimown, the grantee in the last recorded deed. Pa.R.C.P. 1144. An action in mortgage foreclosure is in rem and 'shall not include an action to enforce a personal liability.' Pa.R.C.P. l141(a). Thus, the rules of civil procedure preclu~le a defendant in mortgage foreclosure action from joining an additional defendant whose purported liability to either mortgagee or original defendant is based upon an assumpsit claim. Signal Cons~mer Discount Company v. Bahnscio, 2.57 Pa. Super.101,390 A. 2d 266 (1978). It is appropriate to refuse a petition for intervention in a mortgage foreclosure suit where a party does not show the alleged agreement upon which he relies in any manner affects the right or obligation to foreclose or the foreclosure itself, or how, by the foreclosure, any fight of his. will be injured. Re~l ~state. l~nd Title ,~ Trust Co. v. W~st Cheerer Street Railway Co., 299 Pa. 76, 149 A. 84 (1930). Purthermore, the equities with respect to thi.~ case weigh heavily in favor of denying Oakwood Custom Homes Inc.'s Petition to Intervene (hereinafter 'Petition to Intervene"). As a preliminary matter, the Petition to Intervene addresses a common concern that the interest of Oakwood Custom Homes, Inc. (hereinafter 'Oakwood~) will be extinguished by foreclosure upon the mortgage which is prior in time to its alleged interest. The rights of creditors in lien positions subsequent to first are amply protected by rules which requ~e notice of the sale be sent to them so that, if desired, they may prevent their interest from being divested by purchase oftbe premises at 'Sheriff's Sale. See Pa. R. C. P. 3129.1 Co). Moreover, the ~Petition to Intervene seeks' to unduly delay the adj~dication of the rights of the parties to this case and, as a result, this cou~t should deny it. Pa. R.C.P. 2329 (3). Fina~l~ y, we submit, that Oakland Custom Homes, Inc. (hereinafter ~Oakland~) seeks only to enjoin, rather than participate in, Plaintiff's mortgage foreclosure case. In paragraph 32 of its Petition to Intervene, Oakwood states that it ~imeuds to file a motion for judgment in /ts action seeking specific performance and intend~ on listing the motion for argume~ as soon as possible.~ Paragraph 28 alleges that ~l~im is docketed, presumably in thi,~ court, at No. 02.- 245. Attached to the Petition to Intervene is the Complaint in that action, not any pleadin~ which the petitioner will file in this action if permitted to intervene as mandated by Pa.R.C.P. 2328. Based on the foregoing procedural and substantive deficiencies in the Oakwood Custom Homes, Inc.'s Petition to Intervene, Plainti~ respectfully requests that the Petition be denied with prejudice. B. A builder with an alleged equitable Interest in real property which arose subsequent to a recorded mortgage is not entitled to an in~unetion with respect to mortgage foreclosur~ proceedillgS filed ~o~ain~ the mortgagor with whom it h~s a dispute. Injunctive relief is an extraorclin~ry equitable remedy ~nd may oniy be granted if a pat~y has established a clear right to the relief requested. Di!.ucent~. Co~. v. Penns~/lvanis Roofing Co., 655 A.2d 1035 (Pa. Super. 1995). For a party-to prevail in a petition for a permanent injunction, the party must establish that his fight to relief is clear, that there is an urgent necessity to avoid inju!y~ which c~nnot be compensated for by &mage~, and the greater injury will result from refnsing rather than granting the relief requested. ~ Penn.~ylvnnia ~tnt~, ~,thics Commission, 669 A,2d 1105 (Pa. Cmwlth. 1996). In this case, ~Oakwood refuses to produce the memorandum of understanding upon which it relies it to assert its right to relief. In any event, the memorandum of ~mdcrstanding at best establishes Oakwood's .right W the real property as a~nlnst Defendant Cn'indley, not Plaintiff. ~In c~m~ra~ review of the memorandum cannot establish its right as against Plaintiff who was not a party to it. Furthermore, Oakwood is not damaged at all by permitling Plaintiff to proceed with mortgage foreclosure, as Oakwood may bid for the property at sheriff's sale to protect its interest. The fact that Oakwood prefers to force Defendant Crrindley to. quit-claim her interest in the real property to Oakwood and force Plaintiff to proceed against Defendant Crrindley for the funds (Petition to Intervene, paragraph 30) is without legal significance. Plaintiff is entitled to rely upon its security for payment of the loan proceeds without interference by potential subsequent, nongovernmental lienholders. Thus, it h~s been held that purchase of a mortgage by a judgment crediwr to prevent discharge of his judgment by foreclosure on a mortgage/s not a basis to enjoin a mortgage foreclosure. O~mmin~s v. l ehigl~ Bricldae,, lnc. 11 Cumb. L.J. 70 (Pa. Corn, Pl. 1960). Finally greater injury will result if the relief requested is granted, because Plslntiff in effect will be wrongfully prevented from exercising its fights under the mortgage agreement and, in effect, forced to look to the personal liability of Defendant Grlnd!ey, rather than the security for which it bargained. Finally, ass~ming Oakwood can overcome these substantive obstacles, it is required to post bond. ~Except when the plaintiff is the Commonwealth of Pennsylvania, a political subdivision or a depaximent, board, commi.~sion, instrumcn~ali~ or omcer of the Commonwealth or of a political subdivision, a pre]imlnary or special injunction shall be granted only if (1) the plaintiff file$ a bond in an amount fixed and security approved by the 'court....' Pa.R.C.P. 1531 0a). Under the ciro~m~tances of thi.~ case, we submit thnt the mount of bond must be equivaleta to the current payoff for the mortgage, with an additional allotment for interest at the contract rate, fees and costa which continue to accrue, IV. CONCI,UNION As set forth above, the Petition to Intervene has been interposed for the purpose of delay only. Oakwood Custom Homes, Inc. c~nnot affect the outcome of thia.mortgage foreclosure proceeding between plaintiff as mortgagee and Defendant as mortgagor and record owner of'real property. Oakwood Custom Homes Inc.does not have nmi, therefore, cannot set forth any claim against the mortgagee related to the init/al mortgage trasnsaction. Moreover, Oakwood Custom Homes, Inc. does not set forth any defense to the propriety of the Mortgage foreclosure action. Finally and for the reasons set forth hereinabove, the Petition to Intervene must be denied with prejudice. Respectfully submitted, MARK I. UDREN & ASSOCIATES Mark J. U/ken, Esquire Attorney for plaintiff VERIFICATION Mark 5. Udren, Esquire, hereby states that he is the attorney f6r the Plaintiff, a corporation unless designated otherwise; that he is authorized to take this Verification and does so because of the exigengies regarding this matter, and because Plaintiff must veri~ much of -- ~the information thxough agents, and because he h~ personal knowledge of some of the facts averred in the foregoing pleading; and that the statemems made in the foregoing plesdino~ are true and correct to the best of his knowledge, information and belief and the source of his information is public reCOrds and repons of Plsintiff's agents. The undersigned understand= that this statement herein is made subject to the penalties of 18 Pa.C.S. Section 4904 rehting to unsworn falsification to authorities. Mark .~Ud~, Esquire MARK ~I. UDREN & ASSOCIATES MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04~02 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY Fill.L, NJ 08034 National City Mortgage phdntiff Beverly A.~Grindley ..... Defendant ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DMSION :. Cum~,-a Coumy .- NO. 01-1586 Civil Term CF.R'riF~CATF. OF ,qF, P. VICR I, Mark I. Udren, Esquire, hereby certify that I served true nmi 'correct copies of Plaintiff's Reply to Oakwood Custom Homes, Inc.'s Petition to Intervene and Bn_'ef in Support thereof upon the following person named herein at their last known idri~ss or their attoraey of record. XXXXXX Regnlnr First Class Mail Certified Mail .~her (certificate of mnilin~) Date Served: March ~r ,2002 TO: Christopher T. Restak, Esquire 213 Carlisle Street Hanover, PA 17331 Attorney for Defendnnt C. Granger Bowfin-. Esquire 114 N. Second Street Harrisburg, PA 17101 Attorney for Petitioner MARK L UDREN & ASSOCIATES / Mark L Udren, Esquire Attorney for Plaintiff/Respondent VIt~ TFT t~J&T'r ON Mark J. Udren, Esquire, hereby ;tares tha~ ,h~ is the attorney-for the Plaintiff in this action, that he is authorized to take this Verification, and th~ the statements made in the foregoing ~ are true and correct to the best of his knowledge information and belief. The undersigned understands that this statement herein is made subject to the penal-ties of 18 Pa.C.S. Section 4904 authorities. relating to unsworn falsification to Mark J. Udren, Esquire MARK J. UDREN & ASSOCIATES BY: Mark J. Udren, Esquire ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage Plaintiff Vo Beverly A. Grindley Defendant (s) ATTOP-NEY FOR PLAINTIFF : COURT OF COMMON PLEAS !CIVIL DIVISION i Cumberland county iNO.01-1586 Civil Term ~F~P~TIFICATE OF SERVICE I, Mark J. Udren, Esquire, hereby certify that I served a true and correct copy of Plaintiff's Reply to New Matter upon the following person named herein at their last known address or their attorney of record. xxxxxx Regular First Class Mail Certified Mail Other (certificate of mailing) Date Served: March/~, 2002 TO: Christopher T. Restak, Esquire 213 Carlisle Street Hanover, PA 17331 Attorney for Defendant MARK J. UDREN & ASSOCIATES By: .~/~ / Mare J. Udren, Esquire Attorney for Plaintiff MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. KINGS HIGH'WAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage Plaintiff Beverly A. Grindley Defendant ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION Cumberland County NO. 01-1586 Civil Term AND NOW, to wit, this day of ,2002, upon consideration of Plaintiff's Motion for Summary Judgment and supporting documents thereto, and upon consideration of the Reply, if any, filed by the Defendant, Beverly A. Grindley, hereto, the Court hereby determines that the Defendant, Beverly A. Grindley, has failed to make a legal defense to Plaintiffs claim and that Plaintiff is entitled to Summary Judgment as a matter of law and that the Court, therefore, ORDERS AND DECREES that Judgment, in rem, shall be entered in favor of the Plaintiff and against the Defendant, Beverly A. Grindley, in the amount of $31,556.37 (as calculated from the Amended Complaint), together with ongoing per diem interest, late charges, escrow advances, and any additional recoverable costs to date of Sheriffs Sale; and for foreclosure and sale of the mortgaged property. It is further ORDERED AND DECREED that Defendant's New Matter is hereby denied and dismissed, with Prejudice. BY THE COURT: MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage Plaintiff ATTORNEY FOR PLAINTIFF ~ COURT OF COMMON PLEAS : CIVIL DIVISION i Cumberland County .- V. .. Beverly A. Grindley i NO. 01-1586 Civil Term Defendant : Plaintiff, National City Mortgage, by its Attorney, Mark J. Udren, Esquire, respectfully requests your Honorable Court to enter an Order granting Summary Judgment in the above-captioned matter for the following reasons: 1. There are no genuine issues as to any material fact, and therefore, Plaintiff (moving party) is entitled to Judgment as a matter of law. 2. Defendant, Beverly A. Grindley, filed an Answer and New Matter to the Amended Complaint in which Defendant effectively admitted all of the allegations in the Amended Complaint. 3. At the time of this pleading, Defendant owned the premises being foreclosed without making a mortgage payment for an excessive period of time. 4. Defendant herein is in default of the subject Mortgage because of the failure to comply with the Construction/Permanent Rider to the Mortgage which mandates that "[c]onstruction of the [subject] residence shall be completed on or before 11/10/99." 5. As a result of the failure to complete construction, there are additional defaults by Defendant, including, but not limited to, that the subject property is not occupied by Defendant Grindley, and thus, the Mortgage is not insured under the National Housing Act. 6. Defendant admits outright, and/or in part, paragraphs 1, 2, 3 and 5 of the Amended Complaint, thereby admitting, inter alia, that Defendant is the real owner and mortgagor of the within mortgaged property. 7. Although Defendant purports to deny and/or fails to deny, in whole and/or in part, specifically or by necessary implication the averments contained in paragraphs 4, 5, 6, 7, 8 and 9 of the Amended Complaint, in reality, said denials are improper and should be deemed as admissions for the reasons set forth in the attached Memorandum of Law. 8. The Pennsylvania pre-foreclosure Act 6 Notice is not required as the Defendant's original principal balance on the Mortgage is greater than $50,000.00. 41 P.S. Section 101, el seq. See Exhibit "A" attached hereto (Mortgage). 9. The Notice specified by the Pennsylvania Homeowner's Emergency Mortgage Assistance Program, Act 91 of 1983, is not required herein as the breach is a non-monetary default, and the premises being foreclosed upon is not the principal residence of the mortgagor. 35 P.S. Section 1680.401c. 10. Plaintiff has an express contractual right pursuant to the terms of the Mortgage to charge the Defendant attorney's fees as a consequence of the initiation of the within action in Mortgage Foreclosure. 11. In addition to the amounts due and owing as set forth in the Amended Complaint, additional sums have accumulated since the filing of the Amended Complaint, pursuant to the terms of the Mortgage. The total amounts due and owing, which sums can be calculated from the face of the Amended Complaint, are as follows: Principal of debt due and unpaid Interest at 7.875% from 2/1/00 to 3/11/02 (the per diem interest accruing on this debt is $5.44 and that sum should be added each day after 3/11/02) Title Report Court Costs (anticipated, excluding SheriWs Sale costs) Property Inspection Attorney's Fees (anticipated and actual to 5 % of principal) TOTAL $25,219.86 4,527.12 250.00 280.00 18.40 1,260.99 $31,556.37 WHEREFORE, Plaintiff respectfully requests that the Honorable Court grant its Motion for Summary Judgment, and that Judgment be entered, in rem, as prayed for in the Amended Complaint in favor of the Plaintiff and against the Defendant, Beverly A. Grindley, in the amount of $31,556.37, together with ongoing per diem interest, late charges, escrow advances, and any additional recoverable costs to date of Sheriffs Sale; and for foreclosure and sale of the mortgaged property; and, that Defendant's New Matter be denied and dismissed with prejudice. Respectfully submitted, MARK J. UDREN & ASSOCIATES By: Mark J. Udren, Esquire Attorney for Plaintiff/Movant MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTORNEY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage Plaintiff Beverly A. Grindley Defendant ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS ! CIVIL DIVISION : Cumberland County .- i NO. 01-1586 Civil Term .- PRAECIPF~TOATTACH AFFIDAY~TAND~YERIFICATIONASEXHIBITSTO PLAINTIFFS MD~TIONF ORS UMMA I~Y JUDGMEN~ TO THE PROTHONOTARY: Kindly attach the enclosed Affidavit and Verification to Plaintiff's Motion for Summary Judgment which was filed on March 18, 2002. MARK J. UDREN & ASSOCIATES By: ~ ~ Mark J. Udren, Esquire Attorney for Plaintiff/Movant MAR. 14, 2002 9:12AM MARK J UDREN & ASSOC 855 4822574 NO, 2707 ?. 2 ~ J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE $00 CHERRY WILL, NJ 0~034 National City Mortgage Beverly A, Orindlcy Defeixtant ATTORNEY FOR PLAINTIFF : COURT OF COMMON PLEAS : CIVIL DMSION ~ Cumberl~.a Coumy : ! NO. 01-1586 Civil Telln .- AF~DAVrr STATE OF OHIO COUNTY OF MONTGOMERY I, Phillip J. ~Cobb , bcL~.g duly sworn a~cord~g W law, depose and say: 1. That ! am the Vice President Plaintiff in the within matter. for National City Mortgage, the 2. That in said capacity I am familiar with the account t/mt forms thc basis of the instant foreclosure action, and that I aln allthorized to take this Affidavit. 3. That Pla/ntiff was not required to send Defeva~nt a statutory pre-foreclosure notice pursuant to Act 6 of 1974 or Act 91 of 1983. 4. Plaintiff acted appropria~ly and in good faith in its dealings with thc Defendant, and complied with all relevznt laws, rules and regulations, as well as with the subject Mortgage and Note. The modification agre~mem referenced in paragraph 3 of the Comtruction/Permanenl Rider to the Mortgage (hereinafter 'Mortgage Rider"), a~ached to Defendant's Answer as Exhibit B, was an option available to the Plai~iff, solely at Plaintiff's discretion. Plaintiff did not elect to modify the mortgage agreement when construction of the Defendant's residence was not comple~:l by November 10, 1999, thc completion deadline dam expressly required by the Mortgage Rider. In light of Defendant's breach of He Mortgage, Plaintiff commenced the instan~ foreclosure action, az it had the right to do. A further default ,,rider the Mortgage, permitting acceleration, is th~ lack of insurance under the National Housing Act. MAR, 14, 2002 9:12AM MARK J UDREN & ASSOC 856 4822574 NO. 2707 ?. 3 5. The amounts due on th~ Mortgage were correctly stated as of the date appearing in the Amended Complaint, in paragraph 7 ~hereof, and have accumulated since the filing of the Amended Complaint, as follows: Principal of debt due and unpaid $25,219.86 Interest at 7.875% from 2/1/00 to 3111/02 (the per diem interest accruing on th~ debt is $5.44 and that sum should be added each day after 3/11/02) 4,527,12 Title Report Court Costs (anticipated, excluding Sheriffs Sale costs) 280,00 Property Inspection 18.40 Attorney's Fees (anticipated and actual to 5 % of principal) 1,260, 99 TOTAL $31,$$6~37 A true and correci copy of the payment hi~to~, attested to herein, is attached hereto as ExZibit "A". National City Mortgage Name~ Phillip J. Cobb Title: Vice President Sworn to and subscribed before me this 20 day of March 2002. illdkklllliglikl'~'lt ' - Mortgage National City Mortgage Co. 3232 Newmark Drive · MiamisDurg, Ohio 45342 Telephone (937) 910-1200 Mailing Address: P.O, Box 1820 Dayton, Ohio 45401-1820 CUSTOMER ACCOUNT ACTIVITY STATEMENT DATE 03/11/02 PAGE 1 BEVERLY A GRINDLEY LOT 2 CROSSROADS SCHOOL RD CARLISLE PA 17013 LOAN NUMBER: REQ BY AGW 9544493 IF YOU HAVE QUESTIONS REGARDING THIS STATEMENT, PLEASE CONTACT OUR CUSTOMER SERVICE DEPARTMENT AT 1-800-822-5626 OR VISIT US AT OUR WEBSITE AT WWW.NATIONALCITYMORTGAGE.COM. .......................... CURRENT ACCOUNT INFORMATION ........................ DATE TOTAL PRINCIPAL LOAN CURRENT PAYMENT PAYMENT & INTEREST INTEREST PRINCIPAL ESCROW DUE AMOUNT PAYMENT RATE BALJkNCE BALANCE 01-01-00 901.89 854.08 7.87500 25,219.86 0.00 ACTIVITY FOR PERIOD 03/08/00 03/08/02 PROCESS DUE TRANSACTION TRANSACTION EFFECTIVE DATE DATE DATE CODE DESCRIPTION OF TRANSACTION TRANSACTION PRIN. PAID/ ESCROW PAID/ ............ OTHER ............. AMOUNT BAL~/qCE INTEREST BALANCE AMOUNT CODE/DESCRIPTION 02-15-02 01-00 143 ADJUSTMENT 0.00 92,572.14 0.00 0.00 25,219.86 NEW PRINCIPAL/ESCROW BALANCES 11-01-01 00-00 305 ESCROW DISBURSEMENT 219.37- 0.00 0.00 219.37- 0.00 NEW PRINCIPAL/ESCROW BALANCES 11-01-01 01-00 170 BEGINNING BALANCES (ESCROW, INTEREST, ETC.) 0.00 0.00 0.00 219.37 219.37- SUSPENSE 219.37 NEW PRINCIPAL/ESCROW BALANCES 10-16-01 01-00 173 PAYMENT 219.37 0.00 0.00 0.00 07-27-01 01-00 142 LOAN SETUP 0.00 117,792.00- 0.00 0.00 117,792.00 06-28-01 03-01 149 CONSTRUCTION DRAW 0.00 25,219.86 0.00 0.00 0.00 06-01-01 00-00 632 STATUTORY EXPENSES 2,550.00 0.00 0.00 0.00 219.37 SUSPENSE NEW PRINCIPAL/ESCROW BALANCES NEW PRINCIPAL/ESCROW BALANCES Natm. C y Mortgage National City Mortgage Co. 3232 Newmark Drive · Miamisburg, Ohio 45342 Telephone (937) 910-1200 Mailing Address: P.O. Box 1820 Dayton, Ohio 45401-1820 CUSTOMER ACCOUNT ACTIVITY STATEMENT DATE 03/11/02 REQ BY AGW PAGE 2 BEVERLY A GRINDLEY LOAN NUMBER: 9544493 PROCESS DUE DATE DATE ACTIVITY FOR PERIOD TRANSACTION CODE 03/08/00 - 03/08/02 TRANSACTION DESCRIPTION EFFECTIVE DATE OF TRANSACTION TP~kNSACTION PRIN. PAID/ ESCROW PAID/ ............ OTHER ............. AMOUNT BALANCE INTEREST BALANCE AMOUNT CODE/DESCRIPTION 03-22-01 03-01 0.00 03-20-01 03-01 0.00 03-19-01 03-01 160.00 02-22-01 03-01 0.00 01-30-01 00-00 250.00 01-30-01 00-00 250.00 01-23-01 02-01 0.00 12-28-00 02-01 200.00 12-14-00 01-01 0.00 11-28-00 01-01 100.00 11-20-00 01-01 37.21 11-20-00 12-00 162.79 11-10-00 12-00 100.00 10-24-00 12-00 81.78 10-24-00 11-00 168.22 10-19-00 00-00 18.40 09-26-00 10-00 100.00 08-30-00 10-00 100.00 147 MISAPPLICATION REVERSAL 0.00 0.00 0 00 170 BEGINNING BALANCES (ESCROW 0.00 0.00 0 O0 170 BEGINNING BALANCES (ESCROW 0.00 0.00 0 O0 147 MISAPPLICATION REVERSAL 0.00 0.00 0 00 632 STATUTORY EXPENSES 0.00 0.00 0 00 630 ATTORNEY ADVANCES 0 00 0.00 00 170 BEGINNING BALANCES ESCROW 0 00 168.68 0 00 170 BEGINNING BALANCES ESCROW 0 0O 0.00 0 00 170 BEGINNING BALANCES ESCROW 0 00 168.22 0.00 170 BEGINNING BALANCES ESCROW 0 00 0.00 0.00 170 BEGINNING BALANCES ESCROW 0 O0 0.00 0.00 170 BEGINNING BALANCES ESCROW 0 00 162.79 0.00 170 BEGINNING BALANCES ESCROW 0 O0 0.00 0.00 170 BEGINNING BALANCES ESCROW 0 O0 0.00 0.00 170 BEGINNING BALANCES ESCROW 0 00 168.22 .00 633 MISC. F/C AND B/R EXPENSES 0 00 0.00 0.00 170 BEGINNING BALANCES (ESCROW 0 00 162.72 0.00 170 BEGINNING BALANCES (ESCROW 0 00 0.00 0.00 160.00- SUSPENSE INTEREST, ETC.) INTEREST, ETC.) 160.00 SUSPENSE 219.37- SUSPENSE INTEREST ETC.) 168.68- SUSPENSE INTEREST ETC.) 200.00 SUSPENSE INTEREST ETC.) 168.22- SUSPENSE INTEREST ETC.) 100.00 SUSPENSE INTEREST ETC.) 37.21 SUSPENSE INTEREST ETC.) INTEREST ETC.) 100.00 SUSPENSE INTEREST ETC.) 81.78 SUSPENSE INTEREST ETC.) INTEREST, ETC.) 62.72- SUSPENSE INTEREST, ETC.) 100.00 SUSPENSE 01-23-01 01-23-01 Mortgage National City Mortgage Co. 3232 Newmark Drive · Miamisburg, Ohio 45342 Telephone (937) 910-t 200 Mailing Address: P.O. Box 1820 Dayton, Ohio 4540 I- 1820 CUSTOMER ACCOUNT ACTIVITY STATEMENT DATE 03/11/02 REQ BY AGW PAGE 3 BEVERLY A GRINDLEY LOAN NUMBER: 9544493 ACTIVITY FOR PERIOD 03/08/00 03/08/02 PROCESS DUE TRANSACTION TRANSACTION EFFECTIVE DATE DATE DATE CODE DESCRIPTION OF TRANSACTION TRANSACTION PRIN. PAID/ ESCROW PAID/ ............ OTHER ............. AMOUNT BALANCE INTEREST BALANCE AMOUNT CODE/DESCRIPTION 08-22-00 10-00 175 PRINCIPAL PAYMENT 31.62 31.62 0.00 25,219.86 08-22-00 09-00 170 168.38 0 07-31-00 09-00 175 230.10 230 25,251 07-31-00 08-00 170 169.90 0 06-23-00 08-00 175 BEGINNING BALANCES .00 168.38 PRINCIPAL PAYMENT .10 0.00 .48 BEGINNING BALANCES .00 169.90 PRINCIPAL PAYMENT 35.44 35.44 0.00 25,481.58 06-23-00 07-00 170 BEGINNING BALANCES 164.56 0.00 164.56 05-30-00 07-00 175 PRINCIPAL PAYMENT 351.91 351.91 0.00 25,517.02 05-30-00 06-00 170 BEGINNING BALANCES 148.09 0.00 170.05 04-18-00 06-00 175 PRINCIPAL PAYMENT 828.02 828.02 0.00 25,868.93 04-18-00 05-00 170 BEGINNING BALANCES 171.98 0.00 171.98 03-17-00 05-00 175 PRINCIPAL PAYMENT 100,00 100.00 0o00 26,696.95 03-17-00 05-00 170 BEGINNING BALANCES 78.04- 0.00 0.00 03-17-00 04-00 170 BEGINNING BALANCES 178.04 0.00 178.04 0.00 NEW PRINCIPAL/ESCROW BALANCES (ESCROW INTEREST ETC,) 0.00 0.00 NEW PRINCIPAL/ESCROW BALANCES (ESCROW INTEREST ETC.) 0.00 0,00 NEW PRINCIPAL/ESCROW BALANCES (ESCROW INTEREST, ETC. ) 0.00 0.00 NEW PRINCIPAL/ESCROW BALANCES (ESCROW INTEREST ETC. ) 0.00 21,96- SUSPENSE 04-17-00 0.00 NEW PRINCIPAL/ESCROW BALANCES (ESCROW INTEREST ETC. ) 0.00 03-16-00 0.00 NEW PRINCIPAL/ESCROW BALANCES (ESCROW INTEREST ETC. ) 03-16-00 0 . 00 78 . 04- SUSPENSE (ESCROW, INTEREST, ETC.) 03-16-00 0.00 MAR, N, 2002 9:12AM MARK J UDRE~ & ASSOC 856 4822574' NO. 2707--P, 4' The undersigned, the Plaintiff in the Motion for SUmmary ludgment, being authorized to make this Verification on behalf of the Plaintiff, hereby verifies that the facts set forth in the Morion for Summary Judgmen~ am ~ from the business records of the Mortgage held by the Pla/miff in the ordinm'y course of business and that those facts are true and correct to thc best of thc knowledge, information and belief of the -,~e~signed. The undersi~nad understands that this staten~nt ~s made subject to the penalties of 18 Pa,C.S. Section ~904 relating to unsworn falsification to authorities. Dated:_March 20, 2002 National City Mortgage Name: Phillip J. Cobb TiNe: Vice President MARK J. UDREN & ASSOCIATES BY: MARK J. UDREN, ESQUIRE ATTORNEY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage Plaintiff ATTORNEY FOR PLAINTIFF "COURT OF COMMON PLEAS i CIVIL DIVISION i Cumberland County NO. 01-1586 Civil Term Beverly A. Grindley Defendant CERTIEICATE DESERSt ICE I, Mark J. Udren, Esquire hereby certify that I have served a true and correct copy of the Praecipe to Attach Affidavit and Verification to Plaintiff's Motion for Summary Judgment upon the following person named herein at their last known address or their attorney of record: xxxxx Regular First Class Mail Certified Mail Other Date Served: March TO: Christopher T. Restak, Esquire 213 Carlisle Street Hanover, PA 17331 Attorney for Defendant MARK J. UDREN & ASSOCIATES Mark J. U Attorney for Plaimiff/Movant MARK J. UDREN & ASSOCIATES BY: Mark J. Udren, Esquire ATTY I.D. NO. 04302 1040 N. KINGS HIGHWAY, SUITE 500 CHERRY HILL, NJ 08034 856-482-6900 National City Mortgage 3232 Newmark Drive Miamisburg, OH 45342 Plaintiff Beverly A. Grindley P.O. Box 1394 Carlisle, PA 17013 Defendant (s) ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION Cumberland County : ]NO. 01-1586 Civil Term PR~RCIPE TO DISCONTINUE WITHOUT P~RJUDICE TO THE PROTHONOTARY: Kindly mark the above DISCONTINUED WITHOUT PREJUDICE, upon payment of your costs only. Mark J. Udren, Esquire Mark J. Udren & Associates Attorney for Plaintiff DATED: May 21, 2002