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Home My WebLink About11-4989Phelan Hallinan & Schmieg, LLP Lawrence T. Phelan, Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 Allison F. Wells, Esq., Id. No. 309519 William E. Miller, Esq., Id. No. 308951 Melissa J. Scheiner, Esq., Id. No. 308912 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 CITIMORTGAGE, INC. 5280 CORPORATE DRIVE MS1011 FREDERICK, MD 21703 Plaintiff V. TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH 1309 BRANDT AVENUE NEW CUMBERLAND, PA 17070-1534 Defendants i= ILEO-OFFICE Or THE PROTHONOTARY 2011 JUN 16 AM 10: 48 ;O PENN YLVAN A TY ATTORNEY FOR PLAINTIFF 268290 COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. I 1-L16)69 C!n I CUMBERLAND COUNTY CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 268290 d?a.? d a a0A &*1v9 saa ???Gbs91 NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to youu. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION CUMBERLAND COUNTY COURTHOUSE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 File #: 268290 Plaintiff is CITIMORTGAGE, INC. 5280 CORPORATE DRIVE MS1011 FREDERICK, MD 21703 2. The name(s) and last known address(es) of the Defendant(s) are: TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH 1309 BRANDT AVENUE NEW CUMBERLAND, PA 17070-1534 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. On 12/20/2006 TOT LE and XIEM HUYNH made, executed and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORPORATED AS A NOMINEE FOR HOWARD HANNA MORTGAGE SERVICES which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No. 1977, Page 0995. The PLAINTIFF is now the mortgagee and is in the process of formalizing an assignment of same. The mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 4. The premises subject to said mortgage is described as attached. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 12/01/2010 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified File #: 268290 by written notice sent to Mortgagor, the entire principal balance and all interest due 6 thereon are collectible forthwith. The following amounts are due on the mortgage as of 04/01/2011: Principal Balance $138,779.71 Interest $3,469.50 11/0 1/2010 through 04/01/2011 Late Charges $141.84 Mortgage Insurance Premium / $114.04 Private Mortgage Insurance Subtotal $142,505.09 Escrow Credit $93.92 TOTAL $142,411.17 7 8 9 Plaintiff is not seeking a judgment of personal liability (or an in personam judgment) against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. This action does not come under Act 91 of 1983 because the mortgage is FHA-insured. File #: 268290 WHEREFORE, Plaintiff demands an in rem judgment against the Defendant(s) in the sum of $142,411.17, together with interest, costs, fees, and charges collectible under the mortgage including but not limited to attorney fees and costs, and for the foreclosure and sale of the mortgaged property. PHELAN HALLINAN & SCHMIEG, LLP C By: Lawrence T. Phelan, Esq., Id. No. 32227 ? Francis S. Hallinan, Esq., Id. No. 62695 ? Daniel G. Schmieg, Esq., Id. No. 62205 ? Michele M. Bradford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ? Sheetal R. Shah-Jani, Esq., Id. No. 81760 ? Jenine R. Davey, Esq., Id. No. 87077 ? Lauren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 ? Jay B. Jones, Esq., Id. No. 86657 ? Peter J. Mulcahy, Esq., Id. No. 61791 ? Andrew L. Spivack, Esq., Id. No. 84439 ? Chrisovalante P. Fliakos, Esq., Id. No. 94620 ? Joshua 1. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Andrew C. Bramblett, Esq., Id. No. 208375 ? Allison F. Wells, Esq., Id. No. 309519 ? Wil 'am E. Miller, Esq., Id. No. 308951 elissa J. Scheiner, Esq., Id. No. 308912 Attorneys for Plaintiff File #: 268290 LEGAL DESCRIPTION ALL THAT CERTAIN tract or Parcel of land and premises, situate, lying and being in the Borough of New Cumberland in the County of Cumberland and Commonwealth of Pennsylvania, more particularly described as follows: BEGINNING at a point on the southeastern corner of Brandt Avenue and Terrace Drive, as shown on the Plan of Lots hereinafter mentioned; thence South 77 degrees 06 minutes East 60 feet to corner of Lot No. 2 on said Plan; thence South 12 degrees 54 minutes West, 110 feet to line of Lot No. 39 on said Plan; thence by the same, North 67 degrees 47 minutes West, 61.96 feet to a point on line of Terrace Drive; thence by the line of said Terrace Drive, by a curve to the left, having a radius of 250 feet, 23.03 feet to a point; thence by the same, North 12 degrees 54 minutes East, 76.97 feet to a point at the southeastern corner of Brandt Avenue and Terrace Drive, the place of BEGINNING. BEING Lot No. 1, as shown on the Plan of Lots known as Simpson Terrace Addition No. 1, to Forrest Hills, said Plan being recorded in the Recorder Office of Cumberland County, in Plan Book 4, Page 109. HAVING THEREON ERECTED a brick dwelling house known and numbered as 1309 Brandt Avenue, New Cumberland, Pennsylvania. BEING THE SAME PREMISES which John W. McKinne, married man, of New Cumberland, Pennsylvania, by his Deed dated March 21, 2005, recorded March 28, 2005, in and for File #: 268290 Cumberland County, Pennsylvania, in Deed Book 268, Page 580, granted and conveyed unto Christopher Weidenhammer and Jody Weidenhammer, the Grantors herein. PROPERTY ADDRESS: 1309 BRANDT AVENUE, NEW CUMBERLAND, PA 17070- 1534 PARCEL # 26-24-0811-148 File #: 268290 VERIFICATION Cry" A. Lop"O ,hereby states that he/she ism"" of, CPTIMORTGAGE, INC., Plaintiff in this matter, that he/she is authorized to make this Verification, and verify that the statements made in the foregoing Civil Action in Mortgage Foreclosure are true and correct to the best of his/her knowledge, information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unworn falsification to authorities. DATE: 51`J? File #: 268290 Name: LE n -bl _x 4&Ll). ky6ae-" Name: QyM A. L &%n Title: OW"ONkW Servicer: CITIMORTGAGE, INC. File #: 268290 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith MM C= 'n Chief Deputy , b j car, Richard W Stewart ? --? c Solicitor OFf CF > c---- CX) ' Citimortgage, Inc Case Number vs. 2011-4989 Huynh Xiem (et al.) SHERIFF'S RETURN OF SERVICE 06/20/2011 08:43 PM - Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on June 20, 2011 at 2043 hours, she served a true copy of the within Complaint in Mortgage Foreclosure, upon the within named defendant, to wit: Huynh Xiem a/k/a Xiem Ngoc Huynh, by making known unto himself personally, at 1309 Brandt Avenue, New Cumberland, Cumberland County, Pennsylvania 17070 its contents and at the same time handing to him personally the said true and rrect co y of the same. MICHELLE GUTSHALL, DEPUTY 06/20/2011 08:43 PM - Michelle Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on June 20, 2011 at 2043 hours, she served a true copy of the within Complaint in Mortgage Foreclosure, upon the within named defendant, to wit: Tot Le a/k/a Tot Van Le, by making known unto Huynh Xiem, Husband of Defendant at 1309 Brandt Avenue, New Cumberland, Cumberland County, Pennsylvania 17070 its contents and at the same time handing to him personally the said true and correct copy of the same. Oil ZEK MICHELLE GUTS SHERIFF COST: $61.00 June 21, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF fq Gour rySuite Shemf. 7e!eosott, fi%, Phelan Hallinan & Schmieg, LLP By: Lawrence T. Phelan, Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua 1. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Allison F. Wells, Esq., Id. No. 309519 William E. Miller, Esq., Id. No. 308951 Melissa J. Scheiner, Esq., Id. No. 308912 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 15-561-7000 CITIMORTGAGE, INC. VS. TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH Attorney for Plaintiff M ?r ?C:) -s t -? f_ c.r N w E5 rv --i Mj =-1 C:)? C rq : CUMBERLAND COUNTY COURT OF COMMON PLEAS : CIVIL DIVISION . No. 11-4989-CIVIL PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter judgment in favor of the Plaintiff and against TOT LE A/K/A TOT VAN LE, and XIEM HUYNH A/K/A XIEM NGOC HUYNH, Defendant(s) for failure to file an Answer to Plaintiff's Complaint within 20 days from service thereof and for foreclosure and sale of the mortgaged premises, and assess Plaintiff's damages as follows: am+ r, ly&(Dd a / 0 k-10 2-"bg413y 268290 W vm c` lied As set forth in Complaint TOTAL $142,411.17 $142,411.17 I hereby certify that (1) the Defendants' last known address is 1309 BRANDT AVENUE, NEW CUMBERLAND, PA 17070-1534, and (2) that noti e has been g' e ccordance with Rule Pa.R.C.P 237.1. Date _ a rence T. Phelan, Esq., Id. No. 32227 ? Fr cis S. Hallinan, Esq., Id. No. 62695 ? aniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ? Shcetal R. Shah-Jam, Esq., Id. No. 81760 ? Jenine R. Davey, Esq., Id. No. 87077 ? Lauren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 ? Jay B. Jones, Esq., Id. No. 86657 ? Peter J. Mulcahy, Esq., Id. No. 61791 ? Andrew L. Spivack, Esq., Id. No. 84439 ? Chrisovalante P. Fliakos, Esq., Id. No. 94620 ? Joshua 1. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Allison F. Wells, Esq., Id. No. 309519 ? William E. Miller, Esq., Id. No. 308951 ? Melissa J. Schemer, Esq., Id. No. 308912 Attorney for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. ok DATE: PHS # 269290 PROTHONOTARY 268290 Phelan Hallman & Schmieg, LLP By: Lawrence T. Phelan, Esq., Id. No. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq... Id. No. 69849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Allison F. Wells, Esq., Id. No. 309519 William E. Miller, Esq., Id. No. 308951 Melissa J. Scheiner, Esq., Id. No. 308912 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 CITIMORTGAGE, INC. VS. TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH Attorney for Plaintiff : CUMBERLAND COUNTY : COURT OF COMMON PLEAS : CIVIL DIVISION : No. 11-4989-CIVIL AFFIDAVIT OF NON-MILITARY SERVICE The undersigned attorney hereby verifies that he/she is the attorney for the Plaintiff in the above-captioned matter, and that on information and belief, he/she has knowledge of the following facts, to wit: (a) that the defendant(s) is/are not in the Military or Naval Service of the United States or it Allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act of Congress of 1940, as amended. (b) that defendant TOT LE A/K/A TOT VAN LE is over 18 years of age and resides at 1309 BRANDT AVENUE, NEW CUMBERLAND, PA 17070-1534. 268290 (c) that defendant XIEM HUYNH A/K/A XIEM NGOC HUYNH is over 18 years of age and resides at 1309 BRANDT AVENUE, NEW CUMBERLAND, PA 17070-1534. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. Date ?J 2.,,,: (( hrence helan, q., Id. No. 32227 ? Francis S. Hallman, Esq., Id. No. 62695 ? aniel G. Schmieg, Esq., Id. No. 62205 [Michele M. Bradford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ? Sheetal R. Shah-Jam, Esq., Id. No. 81760 ? Jenine R. Davey, Esq., Id. No. 87077 ? Lauren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 ? Jay B. Jones, Esq., Id. No. 86657 ? Peter J. Mulcahy, Esq., Id. No. 61791 ? Andrew L. Spivack, Esq., Id. No. 84439 ? Chrisovalante P. Fliakos, Esq., Id. No. 94620 ? Joshua I. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Allison F. Wells, Esq., Id. No. 309519 ? William E. Miller, Esq., Id. No. 308951 ? Melissa J. Scheiner, Esq., Id. No. 308912 Attorney for Plaintiff 268290 (Rule of Civil Procedure No. 236) - Revised CITIMORTGAGE, INC. VS. TOT LE A/KJA TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH : CUMBERLAND COUNTY : COURT OF COMMON PLEAS CIVIL DIVISION : No. 11-4989-CIVIL Notice is given that a Judgment in the above captioned matter has been entered against you on By: ?..- If you have any questions concerning this matter please contact: ? Lawrence T. Phelan, Esq., Id. No. 32227 Vrr cis S. Hallman, Esq., Id. No. 62695 el G. Schm ieg, Esq., Id. No. 62205 hele M. Bradford, Esq., Id. No. 69849 ? Judith T. Romano, Esq., Id. No. 58745 ? Sheetal R. Shah-Jani, Esq., Id. No. 81760 ? Jenine R. Davey, Esq., Id. No. 87077 ? Lauren R. Tabas, Esq., Id. No. 93337 ? Vivek Srivastava, Esq., Id. No. 202331 ? Jay B. Jones, Esq., Id. No. 86657 ? Peter J. Mulcahy, Esq., Id. No. 61791 ? Andrew L. Spivack, Esq., Id. No. 84439 ? Chrisovalante P. Fliakos, Esq., Id. No. 94620 ? Joshua 1. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 ? Allison F. Wells, Esq., Id. No. 309519 ? William E. Miller, Esq., Id. No. 308951 ? Melissa J. Schemer, Esq., Id. No. 308912 Attorney or Party Filing 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 'THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PRE VIO USL Y RECEIVED A DISCHARGE IN BANKRUPTCY, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONL Y ENFORCEMENT OFA LIEN AGAINST PROPERTY. ** CITIMORTGAGE, INC. COURT OF COMMON PLEAS CIVIL DIVISON V. Plaintiff NO. 11-4989-CIVIL TOT LE A/K/A TOT VAN LE CUMBERLAND COUNTY XIEM HUYNH A/K/A XIEM NGOC HUYNH Defendant(s) TO: TOT LE A/K/A TOT VAN LE 1309 BRANDT AVENUE NEW CUMBERLAND, PA 17070-1534 DATE OF NOTICE: July 13, 2011 THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. THIS NOTICE IS SENT TO YOU IN AN' ATTEMPT TO COLLECT THE INDEBTEDNESS REFERRED TO HEREIN, AND ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY AS ENFORCEMENT OF LIEN AGAINST PROPERTY. IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. PHS # 268290 Office of the Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6195 CUMBERLAND COUNTY BAR ASSOCIATION CUMBERLAND COUNTY COURTHOUSE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 2 e an, Esq., Id.'Iqo. 32227 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 6220 Michele M. Bradford, Esq., Id. No. 9849 Judith T. Romano, Esq., Id. No. 58745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua 1. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Andrew C. Bramblett, Esq., Id. No. 208375 ison F. Wells, Esq., Id. No. 309519 William E. Miller, Esq., Id. No. 308951 Melissa J. Scheiner, Esq., Id. No. 308912 Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 PHS # 268290 CITIMORTGAGE, INC. v. Plaintiff TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH Defendant(s) TO: XIEM HUYNH A/K/A XIEM NGOC HUYNH 1309 BRANDT AVENUE NEW CUMBERLAND, PA 17070-1534 DATE OF NOTICE: July 13, 2011 COURT OF COMMON PLEAS CIVIL DIVISON NO. 11-4989-CIVIL CUMBERLAND COUNTY THIS FIRM IS 'A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT THE INDEBTEDNESS REFERRED TO HEREIN, AND ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY AS ENFORCEMENT OF LIEN AGAINST PROPERTY. IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. PHS # 268290 Office of the Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6195 CUMBERLAND COUNTY BAR ASSOCIATION CUMBERLAND COUNTY COURTHOUSE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717 Francis S. Hallinan, Esq., Id. No. 62695 Daniel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 9 Judith T. Romano, Esq., Id. No. 5 745 Sheetal R. Shah-Jani, Esq., Id. No. 81760 Jenine R. Davey, Esq., Id. No. 87077 Lauren R. Tabas, Esq., Id. No. 93337 Vivek Srivastava, Esq., Id. No. 202331 Jay B. Jones, Esq., Id. No. 86657 Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Chrisovalante P. Fliakos, Esq., Id. No. 94620 Joshua 1. Goldman, Esq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 drew C. Bramblett, Esq., Id. No. 208375 Allison F. Wells, Esq., Id. No. 309519 William E. Miller, Esq., Id. No. 308951 Melissa J. Scheiner, Esq., Id. No. 308912 Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 PHS # 268290 PRAECIPE FOR WRIT OF EXECUTION-(MORTGAGE FORECLOSURE) P.R.C.P.3180-3183 CITIMORTGAGE, INC. Plaintiff TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH Defendant(s) To the Prothonotary: Issue writ of execution in the above matter: Amount Due Interest from 07/29/2011 to Date of Sale ($23.41 per diem) TOTAL Note: Please attach description of property. PHS # 268290 ao - a`1. W PA W?q tot . Do C8? 9a•oo 114.oo a-5o COURT OF COMMON PLEAS CIVIL DIVISION NO.: 11-4989-CIVIL CUMBERLAND COUNTY r*t?? i.. $142,411.17 C"O $3,090.12 cn r- -C _.,,. SID 14 ? 7_1 ci 7 Phelan Hallinan & Schmieg, LLP Allison F. Wells, Esq., Id. No.309519 Attorney for Plaintiff 1 q,3. _50 - PO ATrY Q a.a, j7c ?v. %. sb LL 126k- a6go9cl 41- f o?/Le Tssaed aC z M M N y O ? O a x a ¢z wZ > z ¢wz E - ¢ ¢ co ?¢ ¢ 3 Q z x?z w a? O v oa wz O ? Hd ? p ? -b O a Ca ? ? a ? U w a 0 v 0 w c? 0 a x cL: , ?o w PHELAN HALLINAN & SCHMIEG, LLP Allison F. Wells, Esq., Id. No.309519 1617 JFK Boulevard, Suite 1400 r s One Penn Center Plaza -r? q`Fi01'OTAPhiladelphia, PA 19103 c v ?E P - f pl°i 10: v 215-563-7000 CITIMORTGAGE, INC. Plaintiff X!MBERLAM COUNTY PENNSYLVANIA V. TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH Defendant(s) CERTIFICATION Attorneys for Plaintiff COURT OF COMMON PLEAS CIVIL DIVISION NO.: 11-4989-CIVIL CUMBERLAND COUNTY The undersigned attorney hereby states that he/she is the attorney for the Plaintiff in the above captioned matter and that the premises are not subject to the provisions of Act 91 because: (X) the mortgage is an FHA Mortgage ( ) the premises is non-owner occupied ( ) the premises is vacant ( ) Act 91 procedures have been fulfilled This certification is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. By: elan Hallinap.,& Schntlieg, LLP _._.Alkson F. Wells, Esq., Id. No,3 519 Attorney for Plaintiff ?_ CITIMORTGAGE, INC. COURT OF COMMON PLEAS Plaintiff ! ! . CIVIL DIVISION V. J1 ! SEA -1 Pr! 10: 09 NO.:11-4989-CIVIL TOT LE A/K/A TOT VAN LE r;t?•BL?Lt?PJD COUNTY XIEM HUYNH A/K/A XIEM NGOC HUYNHLVA N I A Defendant(s) CUMBERLAND COUNTY PHS # 268290 AFFIDAVIT PURSUANT TO RULE 3129.1 CITIMORTGAGE, INC., Plaintiff in the above action, by the undersigned attorney, sets forth as of the date the Praecipe for the Writ of Execution was filed, the following information concerning the real property located at 1309 BRANDT AVENUE, NEW CUMBERLAND, PA 17070-1534. 1. Name and address of Owner(s) or reputed Owner(s): Name Address (if address cannot be reasonably ascertained, please so indicate) TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH 2. Name and address of Defendant(s) in the judgment: Name SAME AS ABOVE 1309 BRANDT AVENUE NEW CUMBERLAND, PA 17070-1534 1309 BRANDT AVENUE NEW CUMBERLAND, PA 17070-1534 Address (if address cannot be reasonably ascertained, please so indicate) 3. Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Address (if address cannot be reasonably ascertained, please indicate) None. 4. Name and address of last recorded holder of every mortgage of record: Name Address (if address cannot be reasonably ascertained, please indicate) GE MONEY BANK 4125 Windward Plaza Drive ALPHARETTA, GA 30005 GE MONEY BANK 1001 East Hector Street; Suite 220 C/o: Frederic I. Weinberg, Esquire Conshohocken, PA 19428 5. Name and address of every other person who has any record lien on the property: Name Address (if address cannot be reasonably ascertained, please indicate) None. 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name Address (if address cannot be reasonably ascertained, please indicate) None. 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Address (if address cannot be reasonably ascertained, please indicate) TENANT/OCCUPANT 1309 BRANDT AVENUE NEW CUMBERLAND, PA 17070-1534 Domestic Relations of Cumberland County 13 North Hanover Street Carlisle, PA 17013 Commonwealth of Pennsylvania Department of Welfare Internal Revenue Service Advisory U.S. Department of Justice U.S. Attorney for the Middle District of PA P.O. Box 2675 Harrisburg, PA 17105 1000 Liberty Avenue Room 704 Pittsburgh, PA 15222 Federal Building, P.O. Box 11754 228 Walnut Street Harrisburg, PA 17108 I verify that the statements made in this affidavit are true and correct to the best of knowledge or information and belief. I understand that false statements herein ?r,e. mard'e s of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities- - - Date: 1 L ?-Phela-n-H-a--114inan & Schmieg, LLP penalties for Plaintiff CITIMORTGAGE, INC. s ^ r _ .? y o'''iu HONOTAN X11, ? - I pm IG: 09 : COURT OF COMMON PLEAS Plaintiff : CIVIL DIVISION =LAPdD COUNT', NO.: 11-4989-CIVIL PENNSYLVANIA TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH CUMBERLAND COUNTY Defendant(s) : NOTICE OF SHERIFF'S SALE OF REAL PROPERTY TO: TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH 1309 BRANDT AVENUE NEW CUMBERLAND, PA 17070-1534 "THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY." Your house (real estate) at 1309 BRANDT AVENUE, NEW CUMBERLAND, PA 17070-1534 is scheduled to be sold at the Sheriff's Sale on 12/07/2011 at 10:00 AM in the Cumberland County Courthouse, South Hanover Street, Carlisle, PA 17013 to enforce the courtjudgment of $142,411.17 obtained by CITIMORTGAGE, INC. (the mortgagee) against you. In the event the sale is continued, an announcement will be made at said sale in compliance with Pa.R.C.P. Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriff's Sale, you must take immediate action: 1. The sale will be canceled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: 215-563-7000 x1230. 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause. 3. You may also be able to stop the sale through other legal proceedings. You may need an attorney to assert your rights. The sooner you contact one, the more chance you will have of stopping the sale. (See notice on page two on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1. If the Sheriff's Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling 215-563-7000. 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property. 3. `The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find out if this has happened, you may call 215-563-7000. 4. If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened. 5. You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A proposed schedule of distribution of the money bid for your house will be prepared by the Sheriff not later than thirty (30) days after the sale. The schedule shall be kept on file with the sheriff and will be made available for inspection in his office. This schedule will state who will be receiving that money. The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the filing of the proposed schedule. 7. You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale. 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 LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION CUMBERLAND COUNTY COURTHOUSE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 (800) 990-9108 SHORT DESCRIPTION By virtue of a Writ of Execution NO. 11-4989-CIVIL CITIMORTGAGE, INC. VS. TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH owner(s) of property situate in the BOROUGH OF NEW CUMBERLAND, Cumberland County, Pennsylvania, being (Municipality) 1309 BRANDT AVENUE, NEW CUMBERLAND PA 17070-1534 Parcel No. 26-24-0811-148 (Acreage or street address) Improvements thereon: RESIDENTIAL DWELLING JUDGMENT AMOUNT: $142,411.17 Phelan Hallinan & Schmieg, LLP Attorney for Plaintiff 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 215-563-7000 LEGAL DESCRIPTION ALL THAT CERTAIN lot or piece of ground situate in the Borough of New Cumberland, County of Cumberland, Commonwealth of Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the southeastern corner of Brandt Avenue and Terrace Drive, as shown on the Plan of Lots hereinafter mentioned; thence South 77 degrees 06 minutes East, 60 feet to corner of Lot No. 2 on said Plan; thence South 12 degrees 54 minutes West, 110 feet to line of Lot No. 39 on said Plan; thence by same, North 67 degrees 47 minutes West, 61.96 feet to a point on line of Terrace Drive; thence by the line of said Terrace Drive, by a curve to the left, having a radius of 250 feet; 23.03 feet to a point; thence by the same, North 12 degrees 54 minutes East, 76.97 feet to a point at the southeastern corner of Brandt Avenue and Terrace Drive, the place of BEGINNING. BEING Lot No. 1, as shown on the Plan of Lots known as Simpson Terrace Addition No. 1, to Forrest Hills, said Plan being recorded in the Recorders Office of Cumberland County, in Plan Book 4, Page 109. HAVING THEREON ERECTED a brick dwelling house known and numbered as 1309 Brandt Avenue, New Cumberland, Pennsylvania. TITLE TO SAID PREMISES IS VESTED IN Tot Le and Xiem Huynh, h/w, by Deed from Christopher Weidenhammer and Jody Weidenhammer, h/w, dated 12/20/2006, recorded 12/21/2006 in Book 278, Page 481. PREMISES BEING: 1309 BRANDT AVENUE, NEW CUMBERLAND, PA 17070-1534 PARCEL NO. 26-24-0811-148 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 11-4989 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due CITIMORTGAGE, INC., Plaintiff (s) From TOT LE a/k/a TOT VAN LE XIEM HUYNH a/k/a XIEM NGOC NUYNH (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION. (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due: $142,411.17 L.L.: $.50 Interest from 7/29/11 to Date of Sale ($23.41 pe r diem) -- $3,090.12 Atty's Comm: % Due Prothy: $2.00 Atty Paid: $193.50 Other Costs: Plaintiff Paid: Date: 9/1/11 ? . David D. B ell, Prothonot (Seal) By: Deputy REQUESTING PARTY: Name: ALLISON F. WELLS, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, LLP 1617 JFK BOULEVARD, SUITE 1400 ONE PENN CENTER PLAZA PHILADELPHIA, PA 19103 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 309519 . . ' E.. r i' c.~ iir~J Phelan Hallinan & Schmieg, LLP, Melissa J. Cantwell, Esq., Id. l~c~.~~OTf 4 c , ATTORNEY FOR PLAINTIFF 1617 JFK Boulevard, Suite 14p~~,~~ ~ One Penn Center Plaza ' ~ R L ~'1 ; Philadelphia, PA 19103 r ENt;SY . 215-563-7000 CITIMORTGAGE, INC. : Court of Common Pleas Plainti:ff : : Civil Division v. : j : CUMBERLAND County TOT LE : A/K/A TOT VAN LE : No.: 11-4989-CIVIL XIEM HUYNH : A/K/A XIEM NGOC HUYNH Defendants PLAINTIFF'S MOTION TO REASSESS DAMAGES Plaintiff, by its Attorneys, Phelan Hallinan & Schmieg, LLP, moves the Court to direct the Prothonotary to amend the judgment in this matter, and in support thereof avers the following: 1. Plaintiff comrixenced this foreclosure action by filing a Complaint on June 17, 2011. 2. Judgment was entered on July 28, 2011 in the amount of $142,411.17. A true and correct copy of the praecipe for judgment is attached hereto, made part hereof, and marked as Exhibit "A". 3. Pursuant to Pennsylvania Rule of Civil Procedure 1037(b)(1), a default judgment containing a dollar amount must be entered for the amount claimed in the complaint and any item which can be calculated from the complaint, i.e. bringing the interest current. However, new items cannot be added at the time of entry of the judgment. 4. The Property is listed for Sheriff s Sale on December 7, 2011. 268290 5. Additional sums have been incurred or expended on Defendants' behalf since the Complaint was filed and Defendants have been given credit for any payments that have been made since the judgment. The amount of damages should now read as follows: Principal Balance $138,779.71 Interest Through December 7, 2011 $9,157.58 Per Diem $22.81 Late Charges $141.84 Legal fees $1,300.00 Cost of Suit and Title $985.00 Property Inspections $121.50 Mortgage Insurance Premium/ Private Mortgage Insurance $285.10 Escrow Deficit $2,059.48 TOTAL $152,830.21 6. The judgment formerly entered is insufficient to satisfy the amounts due on the Mortgage. 7. Under the terms of the Mortgage and Pennsylvania law, Plaintiff is entitled to inclusion of the figures set forth above in the amount of judgment against the Defendants. 8. Plaintiffs foreclosure judgment is in rem only and does not include personal liability, as addressed in Plaintiffl s attached brief. 9. In accordance with Cumberland County Local Rule 2083(9), Plaintiff sent a copy of its proposed Motion to Reassess Damages and Order to the Defendant on October 12, 2011 and requested the Defendants' Concurrence. Plaintiff did not receive any response from the Defendants. A true and correct copy of Plaintiffls letter pursuant to Local Rule 208.3(9) and certification of mailing are attached hereto, made part hereof, and marked as Exhibit "B". 10. No judge has previously entered a ruling in this case. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. Phelan Hallinan & Schmieg, LLP 268290 DATE: By: ' Melissa J. Cantwell, Esquire ATTORNEY FOR PLAINTIFF 268290 Phelan Hallinan & Schmieg, LLP Melissa J. Cantwell, Esq., Id. No.308912 ATTORNEY FOR PLAINTIFF 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 CITIMORTGAGE, INC. : Court of Common Pleas Plaintiff : : Civil Division v. • : CUMBERLAND County TOT LE • A/K/A TOT VAN LE : No.: 11-4989-CIVIL XIEM HUYNH A/K/A XIEM NGOC HUYNH Defendants MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REASSESS DAMAGES 1. BACKGROUND OF CASE TOT LE A/K/A TOT VAN LE and XIEM HUYNH A/K/A XIEM NGOC HUYNH executed a Promissory Note agreeing to pay principal, interest, late charges, real estate taxes, hazard insurance premiums, and mortgage insurance premiums as these sums became due. Plaintiffs Note was secured by a Mortgage on the Property located at 1309 BRANDT AVENUE, NEW CUMBERI,AND, PA 17070-1534. The Mortgage indicates that in the event of a default in the mortgage, Plaintiff may advance any necessary sums, including taxes, insurance, and other items, in order to protect the security of the Mortgage. 268290 In the instant case, Defendants defaulted under the Mortgage by failing to tender numerous, promised monthly mortgage payments. Accordingly, after it was clear that the default would not be cured, Plaintiff commenced the instant mortgage foreclosure action. Judgment was subsequently entered by the Court, and the Property is currently scheduled for Sheriffs Sale. Because of the excessive period of time between the initiation of the mortgage foreclosure action, the entry of judgment and the Sheriffs Sale date, damages as previously assessed are outdated and need to be adjusted to include current interest, real estate taxes, insurance premiums, costs of collection, and other expenses which Plaintiff has been obligated to pay under the Mortgage in order to protect its interests. It is also appropriate to give Defendants credit for monthly payments tendered through bankruptcy, if any. IL LEGAL ARGUMENT TO AMEND PLAINTIFF'S IN REM JUDGMENT It is settled law in Pennsylvania that the Court may exercise its equitable powers to control the enforcement of a judgment and to grant any relief until that judgment is satisfied. 20 P.L.E., Judgments § 191. Stephenson. v. Butts, 187 Pa.Super. 55, 59, 142 A.2d 319, 321 (1958). Chase Home Mortgage Corporation of the Southwest v. Good, 537 A.2d 22, 24 (Pa.Super. 1988). The Pennsylvania Superior Court has repeatedly cited the right of a foreclosing creditor to amend its judgment prior to the Sheriffs sa1e. Nationsbanc Mortgage Corp v Grillo, 827 A.2d 489 (Pa.Super. 2003). Morgan Guarantv Trust Co. ofN.Y. v. Mowl, 705 A.2d 923 (Pa. Super. 1998). Union National Bank of Pittsburgh v Cion oli, 407 Pa.Super. 171, 595 A.2d 179 (1991). The Supreme Court of Pennsylvania recognized in Landau v. Western Pa. Nat. Bank. 445 Pa. 117, 282 A.2d 335 (1971), that the debt owed on a Mortgage is subject to change and, in fact, can be expected to change frorxi day to day because the bank must advance sums in order to protect 268290 its collateral. Because a Mortgage lien is not extinguished until the debt is paid, Plaintiff must protect its collateral up until the date of sale. Beckman v. Altoona Trust Co., 332 Pa. 545, 2 A.2d 826 (1939). Because a judgment in mortgage foreclosure is strictly in rem, it is critical that the judgment reflect those amounts expended by the Plaintiff in protecting the property. Meco Realitv Company v. Burns, 414 Pa. 495, 200 A.2d 335 (1971). Plaintiff submits that if it goes to sale without the requested amended judgment, and if there is competitive bidding for the Property, Plaintiff will suffer a significant loss in that it would not be able to recoup monies it advanced to protect its interests. Conversely, amending the in rem judgment will not be detrimental to Defendants as it imputes no personal liability. In B.C.Y. v. Bukovich, the Pennsylvania Superior Court reiterated its long standing rule that a Court has the inherent power to correct a judgment to conform to the facts of a case. 257 Pa. Super. 157, 390 A.2d 276 (1978). In the within case, the amount of the original judgment does not adequately reflect the additional sums due on the Mortgage due to Defendants' failure to tender payments during the foreclosure proceeding and the advances made by the mortgage company. The Mortgage plainly requires the mortgagors to tender to the mortgagee monthly payments of principal and interest until the Promissory Note accompanying the Mortgage is paid in full. The mortgagors are also required to remit to the mortgagee sufficient sums to pay monthly mortgage insurance premiums, fire insurance prem.iums, taxes and other assessments relating to the Property. The mortgagor s have breached the terms of the Mortgage, and Plaintiff has been forced to incur significant unjust fmancial losses on this loan. 268290 III. THE FORECLOSURE JUDGMENT IS IN REM ONLY The within case is a mortgage foreclosure action, the sole purpose of which is to take the mortgaged property to Sheriff s Sale. Pennsylvania law makes clear that an action in mortgage foreclosure is strictly in rem and does not include any personal liability. Newtown Village Partnership v. Kimmel, 424 Pa. Super 53, 55, 621 A.2d 1036, 1037 (1993). Signal Consumer Discount Company v. Babuscio, 257 Pa. Super 101, 109, 390 A.2d 266, 270 (1978). Pennsylvania Rule of Civil Procedure 1141(a). However, Pennsylvania law requires that the foreclosure action demand judgment for the amount due. Pa.R.C.P. 1147(6). The purpose of the dollar amount in the in rem judgment is for bidding at the Sheriff s Sale. Tn the event that a third party real estate speculator were to bid on the mortgaged property at the Sheriffs Sale and become the successful purchaser, Plaintiff would receive the amount of the in rem judgment from the Sheriff. IV. INTEREST T'he Mortgage clearly requires that the Defendants shall promptly pay when due the principal and interest due on the outstanding debt. In addition, the Note specifies the rate of interest to be chazged until the debt is paid in full or otherwise satisfied. Specifically, interest from 30 days prior to the date of default thraugh the date of the impending SherifPs sale has been requested. V. TAXES AND INSURANCE If Plaintiff had not advanced monies for taxes and insurance throughout the foreclosure proceeding, Plaintiff would have risked loss of its collateral. If the Property were sold at a tax sale, Plaintiff s interest very well may be divested, and Plaintiff would sustain a complete loss on the 268290 The title report is necessary to determine the record owners of the property, as Pa.R.C.P. 1144 requires all record owners to be named as Defendants in the foreclosure action. It is also necessary to determine whether there are any prior liens to be cleared, so that the Sheriffls sale purchaser acquires clear title to the property. It is necessary to determine if there are IRS liens on the property, whether the Defendants are divorced (which could affect service of the complaint), and numerous other legal issues. The title bringdown is necessary to identify any new liens on the property or new owners between the time of filing and complaint and the writ date. The Freedom of Information Act inquiries and the investigation into Defendants' whereabouts are necessary ta effectively attempt personal service of the complaint and notice of sale on the Defendant. The notice of sale and Rule 3129 notice are required by Pa.R.C.P.3129.1 and 3129.2 to notify all lienholders, owners, and interested persons of the Sheriff's sale date, as their interests will be divested by the Sheriff's sale. Accordingly, the modest sums Plaintiff has incurred for the costs of suit and title were necessary pursuant to Pennsylvania law. The amounts were reasonable and actually incurred. The mortgage and Pennsylvania law permit Plaintiff to recover these sums through its foreclosure action. As the foreclosure action is in rem only, Plaintiff recovers its judgment from the sale of the property, not out of the Defendant's pockets. Plaintiff should recover the costs of suit and title in their entirety, which will not cause harm to the Defendants. VIII. PROPERTY INSPECTIONS AND PRESERVATION The terms of the mortgage provide for property inspections and property preservation charges. The lender or its agent may make reasonable inspections of the property pursuant to the 268290 outstanding balance due on the loan. If the Property were damaged in a fire, Plaintiff would not be able to obtain insurance proceeds to restore the Property if it did not pay the insurance premiums. Most importantly, the Mortgage specifically provides that the mortgagee may advance the monies for tuxes and insurance and charge these payments against the escrow account. Plaintiff is simply seeking to have the Court enfarce the terms of the Mortgage. VI. ATTORNEY'S FEES The amount of attorney's fees requested in the Motion to Reassess Damages is in accordance with the loan documents and Pennsylvania law. Pennsylvania Courts have long and repeatedly concluded that a request of five percent of the outstanding principal balance is reasonable and enforceable as an attorney's fee. Robinson v. Loomis, 51 Pa. 78 (1865); First Federal Savin s and Loan Association v. Street Road Shoppin Center, 68 D&C 2d 751, 755 (1974). In Federal Land Bank of Baltimore v. Fetner, the Superior Court held that an attorney's fee of ten percent of the original mortgage amount is not unconscionable. 410 A.2d 344 (Pa. Super. 1979). Recently, the Superior Court cited Fetner in confirming that an attorney's fee of ten percent included in the judgment in mortgage foreclosure action was reasonable. Citicorp v. Morrisville Hampton Rea1tX, 662 A.2d 1120 (Pa. Super. 1995). Importantly, Plaintiff recognizes this Honorable Court's equitable authority to set attorney's fees and costs as it deems reasonable. VII. COST OF SUIT AND TITLE Pursuant to the terms of the mortgage, Plaintiff is entitled to recover all expenses incurred in the foreclosure action. The amount claimed for the costs of suit and title are the expenses Plaintiff paid to date as a result of the rnortgage default. 268290 terms of the mortgage. When a borrower defaults under the terms of the mortgage, the lender may do, or pay for, whatever is reasonable to protect its interest in the collateral, including property maintenance. Any amounts disbursed by the lender for property inspections and preservation become additional debt of the borrower secured by the mortgage. The lender may charge the borrower for services performed in connection with the default, for the purpose of protecting the lender's interest in the property, including property inspections and valuation costs. When a loan is in default, the lender's risk increases. Mortgage companies typically have a vendor visit the premises to determine if any windows need to be boarded up, if the property is vacant, if the grass needs to be cut, or the snow shoveled. If the property inspection reveals any problems at the mortgaged premises, then the mortgage company may proceed to take whatever steps are necessary to secure the collateral, such as boarding windows, winterizing, removing hazards or debris, etc. The mortgage company generally pays a vendor to handle these tasks, which are referred to in the industry as "property preservation". These services avoid code violations and avoid the property becoming an eyesore in the neighborhood. Property preservation helps maintain property values in the neighborhood. Accordingly, line items included in Motions to Reassess Damages for property inspections and property preservation represent amounts which the mortgage company has paid out of its pocket to preserve its collateral, consistent with the terms of the mortgage contract. Since the terms of the mortgage provide that such expenses by the mortgage company become part of the borrower's debt secured by the mortgage, those expenses are properly included in the Plaintiff's Motion to Reassess Damages. 268290 IX. CONCLUSION Therefore, Plaintiff respectfully submits that if the enforcement of its rights is delayed by legal proceedings, and such delays require the mortgagee to expend additional sums provided for by the Mortgage, then the expenses necessarily become part of the mortgagee's lien and should be included in the judgment. Plaintiff respectfully requests that this Honorable Court grant its Motion to Reassess Damages. Plaintiff submits that it has acted in good faith in maintaining the Property in accordance with the Mortgage, and has relied on terms of the Mortgage with the understanding that it would recover the monies it expended to protect its collateral. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. Phelan Hallinan & Schmieg, LLP ' ~ DATE: Melissa J. Cantwell, Esquire Attorney for Plaintiff 268290 Exhibit "A" 268290 Phelan Hallinan & Schmieg, LLp By: Lawrence T. Pheian, Esq., Id. No. 32227 Attorney for Plaintiff Francis S. Hallinan, Esq., Id. Na. 62695 Daniel G. Sehmieg, F.sq., Id. No. 62205 Michele M. Bradford, Bsq., Id. No. 69849 a, Judith T. Romano, Esq., Id. No. 58745 Mm Sheetal R. Shah-Jani, Esq., Id. No, 81760 =m ~ rnr=- r- ro Jenine R. Davey, Esq., Id. No. 87477 cnr' rv ;;0r~, Lauren R. Tabas, Esq., Id. No. 93337 0 <x °i0 °Q Vivek Srivastava, Esq., Id. No. 202331 y° Jay B. Janes, Esq., Id. No. 86657 r~-' ~ ° --i Peter J. Mulcahy, Esq., Id. No. 6179 s Andrew L. Spivack, Esq., Id. No. 8 Chrisovalante P. Fliakos, Esq,, Id. Not Joshua I. Galdman, F.,sq., Id. No. 205047 Courtenay R. Dunn, Esq., Id. No. 206779 Allison F. Wells, Esq., Id. No. 309519 William E. Miller, Esq.., Id. No. 308951 Melissa J. Scheiner, Esq,, !d. No. 308912 1617 JFK Boulevard, Suite ] 400 One Penn C.,entei- Plaza Philadelphia, PA 19143 215-563-7f)00 CI'I'IMQRTGAGE, INC. : CUMBERLAND COUNTY vs" : CO'URT OF COMMC)N Pi,EAS TOT LE A/K/A TOT VAN LE : CIVTL bIVTSION XIEM HUYNH A/K/A XIEM NGOC HUYNH : No. 114989-CIVIL PRAECTPE FOR IN RE"M JWPC;1V,IENT FOR I'AILUI2E TO A.17~7YTL' R A1r.Ll k1S~.71J`47". :.YIv L.l y"'iF.DAMAl:Ta7 ,`I'O THE PROTHONOTARY: Kindly enter judgment in favor of the Plaintiff and against TOT LE A/K/A TOT VAN LE and XIEM HUYNH A/K/A XIEM NGOC HUYNH, Defendant(s) for failure to fiie ftn Answer to Plaintiff's Complaint within 20 days from service thereof and far foreclosure and sale ctf the rnortgaged pz-ernises, and assess Plaintiff's damages as follows: 268290 As set forth in Complaint $142,411.17 TOTAL $142,471.17 I hereby certify that {1} the Defendants' last known address is 1309 BRANDT AVENUE, NEW CUMBERLAND, PA 17070-1534, and (2) that Iicyti e has been g` e` ccorciarice with , Rule Fa.R.C.P 237 1, Date _ .,a renee T. Phelan, L:sy., Id. No. 32227 1~ ;Xh cis S. Hallinan, Esq., id. No. 62695 ~ amel G. Schmieg, Esq., Id. No. 62205 Michele M. Bradford, Esq., Id. No. 69849 3udith T. iZomano, Esq., Id. No. 58745 r Sheetal R. Shah-Jani, Esq., Id. No. $1760 F Jenine R. Davey, Esq., Id. No. 87077 ? Lauren R. Tabas, Esq., Id. No. 93337 F~ Vivek Srivastava, Esq., Id. No. 202331 F] Jay B. Janes, Esg., Td. No. 86657 [J Peter J. Mulcahy, Esq., Id. No. 61791 Andrew L. Spivack, Esq., Id. No. 84439 Chrisovalante P. Fliakos, Esq,, Id. No. 94620 Joshua I. Goldman, Esq., Id. No. 205047 ? Courtenay R. Dunn, Esq., Id. No. 206779 [ Allison F. Wells, Esq., Id. No. 309519 L] William E. Miller, Esq., id. No. 308951 LJ Melissa J. Scheiner, Esq., Id. No. 30$912 Attorney for Pisintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. DA`I'E: _.7 . ,w : pHS a 268290 PRQTHONOTARY 268290 Exhibit "B" 268290 . o~ c w~ . a co.C"N N E°. u ~ 00 c vi `d o N _ ~LC] . ~66 34oo dIZV49 ZLLpZO ~ ?~i`' W Z ~ 9z. c 4tv ~ 0 ~ o e ti ~b'.tSpd s:~1 G p ~ . E E = ?3 O ~v ~ E H A. d v O ,o ~ F o y~ > 'O V ~ O Y Z a 7 a°qig~ E c E = a > oc °o 'oc w`o W p G p~ a GQ pO=EIn a a ~ o u ~ _ o F N t v o vD o ~ w Fs ti~a ~ z ~ w 10 Y ~ ~ G WI Q ~ O Z z Z' v~ p~ a v vU, ~ :t "0 m ~ ~ ~ O A A E-°a z y ~ b ~ oZ. O a Q Ts a o c w, ~ a ro ~ t~ OM $-4 ea W3 Z 00 zQO Q x ~ ~N z (y ~ U N M V' ~n ~O oo T O N crl ~ ~1 ~.0. YrirL.Hlv ril',LL11VAlv dL ~l,rilVll~lT, LLY • 1617 John F. Kennedy Boulevard ' Suite 1400 Philadelphia, PA 19103 (215) 563-7000 FAX#: (215) 563-3459 Phelan Hallinan & Schmieg, LLP Representing Lenders in Pennsylvania and New Jersey October 12, 2011 TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH 1309 BRANDT AVENUE NEW CUMBERLAND, PA 17070-1534 I RE: CITIMORTGAGE,INC. v. TOT LE, A/K/A TOT VAN LE and XIEM HiJYNH, A/K/A XIEM NGOC HUYNH Premises Address: 1309 BRANDT AVENUE NEW CLTMBERLAND, PA 17070 CUMBERLAND County CCP, No. 11-4989-CIVIL Dear Defendants, Enclosed please fintl a true and correct copy of my proposed Motion to Reassess Damages and Order. In accardance with Cumberland County Local Rule 208.3(9), I am seeking your concurrence with the requested relief that is, increasing the amount of the judgment. Please respond to me within 5 days, by October 17, 201 L Should you have fiu-ther quo~sortoncerns, please do not hesitate to contact me. Otherwise, please be guidect acc9rd'irigly. Very truly y6 I urs, ~ C-All1~jon F. Wells, Esquiw-------...--,, Attorney for Plaintiff- Enclosure 268290 • ~ Phelan Hallinan & Schmieg, I,LP Melissa J. Cantwell, Esq., Id. No.308912 ATTORNEY FOR PLAINTIFF 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 CITIMORTGAGE, INC. : Court of Common Pleas Plaintiff ~ : Civil Division v. ~ : CUMBERLAND County TOT LE ~ A/K/A TOT VAN LE . No.: 11-4989-CIVIL XIEM HUYNH ~ A/K/A XIEM NGOC HUYNH Defendants CERTIFICATION OF SERVICE I hereby certify that tzue and correct copies of Plaintiff s Motion to Reassess Damages, and Brief in Support thereof, were sent to the following individuals on the date indicated below. TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH 1309 BRANDT AVENUE NEW CUMBERLAND, PA 17070-1534 Phelan Hallinan & Schmieg, LLP DATE: By: Melissa J. Cantwell, ATTORNEY FOR PLAINTIFF 268290 fem. i 7 r --- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CITIMORTGAGE, INC. Plaintiff V. TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH Defendants Court of Common Pleas : Civil Division : CUMBERLAND County No.: 11-4989-CIVIL RULE AND NOW, this day of 00'k4e,' 2011, a Rule is entered upon the Defendants to show cause why an Order should not be entered granting Plaintiff's Motion to Reassess Damages. Defendants shall have twenty (20) days from the date of this Order to file a response to Plaintiff's Motion to Reassess Damages. If no response is filed with the Court, Plaintiff may file a Motion to Make Rule Absolute and no hearing will be scheduled on this matter. BY E COURT Z??42 J Melissa J. Cantwell, Esq., Id. No.308912 Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 TEL: (215) 563-7000 FAX: (215) 563-3459 TOT LE A/K/A TOT VAN LE XIEM 14UYNH A/K/A XIEM NGOC HUYNH 1309 BRANDT AVENUE NEW CUMBERLAND, PA 17070-1534 268290 268290 • a. I rypE.y?. i `q l(ry(l I ? ¢ 10 AN, 10• Phelan Hallinan & Schmieg'XI BERLAND COU1 4 T ', Allison F. Wells, Esq., Id. No.3b4Yf4Sl LVA N 1 A 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 CITIMORTGAGE, INC. Plaintiff ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division vs. TOT LE A/K/A TOT VAN LE XIEM HUYNH A/K/A XIEM NGOC HUYNH Defendants CUMBERLAND County No.: 11-4989-CIVIL CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of the Court's October 31, 2011 Rule directing the Defendants to show cause as to why Plaintiffs Motion to Reassess Damages should not be granted was served upon the following individuals on the date indicated below. TOT LE A/K/A TOT VAN LE XIEM HU YNH A/K/A XIEM NGOC HUYNH 1309 BRANDT AVENUE NEW CUMBERLAND, PA 17070-1534 DATE: I// L11 t By: Phelan & ScDmf-ieg, LLP Alli-sMT'Wells, Esquire Attorney for Plaintiff 268290 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CITIMORTGAGE, INC. Court of Common Pleas Plaintiff Civil Division vs. CUMBERLAND County TOT LE A/K/A TOT VAN LE No.: 11-4989-CIVIL XIEM HUYNH 4-3 A/K/A XIEM NGOC HUYNH rnm rn =-€ -- Defendants r ?r"ri rv ORDER ...„,. AND NOW, this I day of1hVe-14,0' , 2011, upon consideration of Pla; 'if' s ?9 ? Motion to Make Rule Absolute, it is hereby ORDE RED and DECREED, that the Rule entered upon Defendants shall be and is hereby made absolute and Plaintiffs Motion to Reassess Damages in the above captained matter is hereby GRANTED. The Prothonotary is ORDERED to amend the judgment and the Sheriff is ORDERED to amend the writ nunc pro tune as follows: Principal Balance $138,779.71 Interest Through December 7, 2011 $9,157.58 Per Diem $22.81 Late Charges $141.84 Legal fees $1,300.00 Cost of Suit and Title $985.00 Property Inspections $121.50 Mortgage Insurance Premium/ Private Mortgage Insurance $285.10 Escrow Deficit $2,059.48 ./ TOTAL $152,830.21 Plus interest from December 7, 2011 through the date of sale at six percent per annum. Note: The above figure is not a payoff quote. Sheriffs commission is not included in the above figure. '' BY E COURT: LaA)mn Tar Le nk.,a6-J T VAr) LE )(16AA M VAM aka.XrEM IAA, NUVt}N ol($ 1. 5 268290