HomeMy WebLinkAbout11-6507
IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH
ALBERT L. KIRKNER and BRIAN C. MCNEW,
Plaintiffs
V.
DGK PROPERTIES, LP,
Defendant
No.// - 6,50 7 C!u/C ?e-rm
Mortgage Foreclosure
NOTICE
You have been sued in Court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and Notice
are served, by entering a written appearance personally or by attorney and filing in writing with
the Court your defenses or objections to the claims set forth against you. You are warned that if
you fail to do so the case may proceed without you and a judgment may be entered against you by
the Court without further notice for any money claimed in the Complaint or for any other claim
or relief requested by the Plaintiff. You may lose money or property or other rights important to
you.
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Civil Action - Law
1
IN THE COURT OF COMMON PLEAS OF THE 9T" JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH
ALBERT L. KIRKNER and BRIAN C. McNEW, Civil Action - Law
Plaintiffs
V.
DGK PROPERTIES, LP,
No.
Defendant Mortgage Foreclosure
COMPLAINT
COME NOW the above named Plaintiffs, by and through their undersigned attorney, and
for their Complaint in the above captioned matter state to the Court as follows:
1. Plaintiff Albert L. Kirkner is a sui juris adult resident of the Commonwealth of
Virginia, having an address of 190 Green Spring Court, Winchester, Virginia, 22603.
2. Plaintiff Brian C. McNew is a sui juris adult resident of the Commonwealth of
Pennsylvania, having an address of 1658 Black Gap Road, Fayetteville, Franklin County,
Pennsylvania, 17222.
3. Defendant DGK Properties, LP is a Pennsylvania limited partnership, having the
following two (2) addresses:
A. an address listed on its mortgage to Plaintiffs of 701 Creekside Lane, Lititz,
Lancaster County, Pennsylvania, 17543; and
B. an address listed on its registration with the Pennsylvania Corporation Bureau
of 711 Olde Hickory Road, Lancaster, Lancaster County, Pennsylvania, 17601.
4. Plaintiffs bring this action to foreclose a mortgage in the principal sum of
$2,200,000.00 executed on November 3, 2009 (hereinafter "Mortgage") between Defendant as
Mortgagor and Plaintiffs as Mortgagees, which Mortgage is recorded in the Office of the
Recorder of Deeds of Cumberland County, Pennsylvania, bearing Instrument Number
200938972.
5. Said Mortgage secures a mortgage note dated November 3, 2009 in the amount of
$2,200,000.00 (hereinafter "Note"). As stated in said Note, interest accrued until June 1, 2010 at
the rate of six (6%) percent per annum, and became payable monthly thereafter. A copy of said
Note and Mortgage is attached hereto and by this reference made a part hereof as Plaintiffs'
Exhibit "A."
6. The land subject to the Mortgage is all that certain tract of land located on the North
side of Ritner Highway (SR-011), also known as US Route 11, and on the West side of Newville
Road (SR-0533), also known as PA Route 533, said tract being partially situate in Southampton
Township, Cumberland County, Pennsylvania, and partially situate in Shippensburg Township,
Cumberland County, Pennsylvania, and more fully described on a Final Subdivision and Land
Development Plan of "Deerfield" prepared by ELA Group, Inc. and recorded as Instrument No.
200739185 in the office of the Cumberland County Recorder of Deeds, said tract of land
bounded and described as follows:
BEGINNING at a point in the centerline intersection of Ritner Highway and Newville
Road, thence in the centerline of Ritner Highway, on a curve concave to the South having a
central angle of 02 degrees 07 minutes 08 seconds, a radius of 11,459.16 feet, an arc length of
423.79 feet, and the chord thereof being South 54 degrees 28 minutes 57 seconds West 423.77
feet to a point in Ritner Highway; thence continuing in the centerline of Ritner Highway, South
53 degrees 25 minutes 23 seconds West 1,286.54 feet to a point in the centerline of Ritner
Highway; thence continuing in the centerline of Ritner Highway, on a curve concave to the
South, having a central angle of 08 degrees 03 minutes 00 seconds, a radius of 5,729.58 feet, an
arc length of 850.00 feet, and the chord thereof being South 49 degrees 10 minutes 23 seconds
West 849.22 feet to a point in the centerline of Ritner Highway; thence continuing in the
centerline of Ritner Highway, South 44 degrees 55 minutes 23 seconds West 384.83 feet to a
point in the centerline of Ritner Highway; thence leaving Ritner Highway, partially by lands now
or formerly of Amerigas Propane, LP, North 45 degrees 56 minutes 31 seconds West 25.00 feet
to a point on the existing northern right-of-way line of Ritner Highway; thence along the existing
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northern right-of-way line of Ritner Highway, North 44 degrees 55 minutes 23 seconds East
385.20 feet to a point on the existing northern right-of-way line of Ritner Highway; thence
continuing on the existing northern right-of-way line of Ritner Highway on a curve concave to
the South having a central angle of 00 degrees 28 minutes 13 seconds, a radius of 5,754.28 feet,
an arc length of 47.22 feet, and the chord thereof being North 45 degrees 09 minutes 29 seconds
East 47.22 feet to a point on the northern existing right-of-way line of Ritner Highway; thence
leaving the northern right-of-way line of Ritner Highway, by Lot No. 1 of "Deerfield," North 44
degrees 36 minutes 25 seconds West 280.35 feet to a point; thence continuing by Lot No. 1 of
"Deerfield," North 46 degrees 00 minutes 49 seconds East 317.20 feet to a point; thence
continuing by Lot No. 1 of "Deerfield," North 73 degrees 55 minutes 43 seconds East 45.01 feet
to a point on the western right-of-way line of Deerfield Lane; thence along the western right-of-
way line of Deerfield Lane on a curve concave to the East, having a central angle of 30 degrees
41 minutes 27 seconds, a radius of 530.00 feet, an are length of 283.90 feet, and the chord thereof
being North 00 degrees 43 minutes 34 seconds West 280.51 feet to a point on the western right-
of-way line of Deerfield Lane; thence continuing on the western right-of-way line of Deerfield
Lane, North 14 degrees 37 minutes 09 seconds East 115.21 feet to a point on the western right-
of-way line of Deerfield Lane; thence continuing on the western right-of-way line of Deerfield
Lane on a curve concave to the West, having a central angle of 74 degrees 13 minutes 16
seconds, a radius of 595.00 feet, an arc length of 770.76 feet, the chord thereof being North 22
degrees 29 minutes 29 seconds West 717.99 feet to a point on the western right-of-way line of
Deerfield Lane; thence leaving the western right-of-way line of Deerfield Lane and by Lot No. 3
of "Deerfield," South 36 degrees 50 minutes 57 seconds West 1,639.16 feet to a point on line of
lands now or formerly of Shippensburg Mobile Estates, Inc.; thence by lands now or formerly of
Shippensburg Mobile Estates, Inc., North 45 degrees 04 minutes 05 seconds West 902.99 feet to
a point; thence continuing by lands now or formerly of Shippensburg Mobile Estates, Inc., South
46 degrees 05 minutes 02 seconds West 1,195.55 feet to a point; thence continuing by lands of
Shippensburg Mobile Estates., Inc., South 36 degrees 41 minutes 13 seconds East 499.20 feet to a
point; thence continuing by lands now or formerly of Shippensburg Mobile Estates, Inc., South
46 degrees 13 minutes 59 seconds East 696.28 feet to a point, being the northeastern corner of
lands now or formerly of Pennsylvania Electric Co.; thence by lands now or formerly of William
S. and Mary T. Craig, North 46 degrees 32 minutes 01 second West 696.71 feet to a point; thence
by lands now or formerly of Paul E. and Grace Hombaker, North 36 degrees 41 minutes 45
seconds West 500.93 feet to a point; thence by lands now or formerly of Laverne B. and Norene
S. Sensenig, North 45 degrees 05 minutes 02 seconds East 1,431.94 feet to a one-inch iron pipe
(found); thence continuing by lands now or formerly of Laverne B. and Norene S. Sensenig,
North 50 degrees 42 minutes 28 seconds West 540.22 feet to a No. 5 rebar (set); thence
continuing by lands now or formerly of Laverne B. and Norene S. Sensenig, North 15 degrees 34
minutes 50 seconds East 195.16 feet to a one-inch iron pipe (found); thence continuing by lands
now or formerly of Laverne B. and Norene S. Sensenig, North 15 degrees 54 minutes 02 seconds
East 634.88 feet to a one-inch iron pipe (found); thence by lands now or formerly of Ray E. and
Jean L. Thrush, North 85 degrees 00 minutes 35 seconds East 842.93 feet to a one-inch iron pipe
(.found); thence by lands now or formerly of The Chester L. Smith and Pauline M. Smith
Revocable Trust, North 85 degrees 52 minutes 12 seconds East 1,786.50 feet to a one-inch iron
pipe (found); thence continuing by lands now or formerly of The Chester L. Smith and Pauline
-3-
M. Smith Revocable Trust, North 39 degrees 53 minutes 16 seconds East 74.26 feet to a No. 5
rebar (set); thence continuing by lands now or formerly of The Chester L. Smith and Pauline M.
Smith Revocable Trust, South 47 degrees 28 minutes 02 seconds East 321.93 feet to a 30-inch
cherry tree; thence continuing by lands now or formerly of The Chester L. Smith and Pauline M.
Smith Revocable Trust, North 42 degrees 44 minutes 23 seconds East 513.01 feet to a fence post;
thence continuing by lands now or formerly of The Chester L. Smith and Pauline M. Smith
Revocable Trust, South 35 degrees 39 minutes 33 seconds East 85.76 feet to a railroad spike
(found) in the old roadbed of Newville Road; thence in and along Newville Road, South 25
degrees 21 minutes 05 seconds East 224.09 feet to a point in or near the existing centerline of
Newville Road; thence in or near the centerline of Newville Road, South 29 degrees 45 minutes
10 seconds East 859.55 feet to a point in the centerline intersection of Newville Road and Ritner
Highway, the point of Beginning. CONTAINING 127.544 acres.
EXCEPTING THEREFROM premises which DGK Properties, LP by their deed dated
September 25, 2009 and recorded October 13, 2009 in the Recorder's Office of Cumberland
County, Pennsylvania as Instrument No. 200934950 granted and conveyed unto Jonathan I. Nori
and Sonya L. Nori, husband and wife. (Lot 303, Plan filed to Instrument No. 200739185.)
EXCEPTING THEREFROM premises which DGK Properties, LP by their deed dated
September 3, 2009 and recorded October 27, 2009 in the Recorder's Office of Cumberland
County, Pennsylvania as Instrument No. 200936393 granted and conveyed unto John K.
Gaughan. (Lot 145, Plan filed to Instrument No. 200739185.)
EXCEPTING THEREFROM premises which DGK Properties, LP by their deed dated
December 17, 2009 and recorded December 29, 2009 in the Recorder's Office of Cumberland
County, Pennsylvania as Instrument No. 200942672 granted and conveyed unto J. LaVern
Horning. (Lot 146, Plan filed to Instrument No. 200739185.)
EXCEPTING THEREFROM premises which DGK Properties, LP by their deed dated
December 17, 2009 and recorded December 29, 2009 in the Recorder's Office of Cumberland
County, Pennsylvania as Instrument No. 200942673 granted and conveyed unto J. LaVern
Horning. (Lot 147, Plan filed to Instrument No. 200739185.)
EXCEPTING THEREFROM premises which DGK Properties, LP by their deed dated
December 17, 2009 and recorded December 29, 2009 in the Recorder's Office of Cumberland
County, Pennsylvania as Instrument No. 200942674 granted and conveyed unto J. LaVern
Horning. (Lot 275, Plan filed to Instrument No. 200739185.)
EXCEPTING THEREFROM premises which DGK Properties, LP by their deed dated
December 17, 2009 and recorded December 29, 2009 in the Recorder's Office of Cumberland
County, Pennsylvania as Instrument No. 200942675 granted and conveyed unto J. LaVern
Horning. (Lot 276, Plan filed to Instrument No. 200739185.)
-4-
EXCEPTING THEREFROM premises which DGK Properties, LP by their deed dated
December 17, 2009 and recorded December 29, 2009 in the Recorder's Office of Cumberland
County, Pennsylvania as Instrument No. 200942676 granted and conveyed unto J. LaVern
Horning. (Lot 277, Plan filed to Instrument No. 200739185.)
EXCEPTING THEREFROM premises which DGK Properties, LP by their deed dated
December 17, 2009 and recorded December 29, 2009 in the Recorder's Office of Cumberland
County, Pennsylvania as Instrument No. 200942677 granted and conveyed unto J. LaVern
Horning. (Lot 278, Plan filed to Instrument No. 200739185.)
EXCEPTING THEREFROM premises which DGK Properties, LP by their deed dated
December 17, 2009 and recorded December 29, 2009 in the Recorder's Office of Cumberland
County, Pennsylvania as Instrument No. 200942678 granted and conveyed unto J. LaVern
Horning. (Lot 279, Plan filed to Instrument No. 200739185.)
EXCEPTING THEREFROM premises which DGK Properties, LP by their deed dated
December 17, 2009 and recorded December 29, 2009 in the Recorder's Office of Cumberland
County, Pennsylvania as Instrument No. 200942679 granted and conveyed unto J. LaVern
Horning. (Lot 280, Plan filed to Instrument No. 200739185.)
EXCEPTING THEREFROM premises which DGK Properties, LP by their deed dated
March 10, 2010 and recorded May 27, 2010 in the Recorder's Office of Cumberland County,
Pennsylvania as Instrument No. 201013738 granted and conveyed unto John M. Ewing. (Lot
144, Plan filed to Instrument No. 200739185.)
7. The Defendant is the real owner of the land subject to the Mortgage, and Defendant's
address as stated in such Mortgage is 701 Creekside Lane, Lititz, Lancaster County,
Pennsylvania, 17543.
8. The Mortgage is in default because of the Defendant's failure to make the payments
due June 1, 2010 through August 1, 2011. The amount currently due and owing under the
Mortgage and Note is $1,978,687.80.
9. The Mortgage is not a "residential mortgage" as defined by Act 6 of 1974, nor does it
meet the notice requirements of the Homeowners' Emergency Assistance Act, and therefore no
notice of intention to foreclose is required.
10. Defendant has not cured the default.
-5-
WHEREFORE, Plaintiffs respectfully request that the Court enter judgment of mortgage
foreclosure against the mortgaged property for the amount set forth above, together with interest
thereon, all other amounts advanced by Plaintiffs, and attorney's fees, along with such other
relief as the Court may deem just and equitable in the premises.
Respectfully submitted,
Date:
???? i`
Paul T. Scheme , Attorney fo laintiffs
Dick, Stein, Schemel, Wine & Frey, LLP
119 East Baltimore Street
Greencastle, Pennsylvania 17225
(717) 597-0200 PA Bar No. 83958
Date: g/1 p/It J, ///
James M. Stein, Attorney for Plaintiffs
Dick, Stein, Schemel, Wine & Frey, LLP
13 West Main Street, Suite 210
Waynesboro, Pennsylvania 17268
(717) 762-1160 PA Bar No. 84026
-6-
VERIFICATION
I verify that the statements made in the foregoing pleading are true and correct to the best
of my knowledge, information and belief I understand that false statements herein are made
subject to the penalties of 18 Pa. C.S., Section 4904, relating to unsworn falsification to
authorities.
Date: August 2, 2011
Albert L. Kirkner, Plaintiff
-7-
VERIFICATION
I verify that the statements made in the foregoing pleading are true and correct to the best
of my knowledge, information and belief. I understand that false statements herein are made
subject to the penalties of 18 Pa. C.S., Section 4904, relating to unsworn falsification to
authorities.
Date: August 2, 2011
Brian C. McNew, Plaintiff
-s-
MORTGAGE NOTE
$ 2,200,000.00
Lancaster, Pennsylvania
November 3, 2009
For Value Received, DGK PROPERTIES, LP, a Pennsylvania limited partnership, having a
mailing address of 701 Creekside Lane, Lititz, PA 17543 (hereinafter called "Mortgagor")
promises to pay to the order of ALBERT KIRKNER and BRIAN McNEW, both adult
individuals having a mailing address of 95 Brim Blvd., Chambersburg, PA 17201
(hereinafter called "Mortgagee"), their heirs, personal representatives or assigns, in lawful
money of the United States of America, the sum of TWO MILLION TWO HUNDRED
THOUSAND DOLLARS ($2,200,000.00) and any additional moneys loaned or advanced
by any holder hereof as hereinafter provided, as follows:
The foregoing principal sum, along with interest calculated at a rate of 6% per annum,
payable in four installments: $250,000.00, on or before November 3, 2009, $300,000 on
or before January 1,2010, $1,300.000.00 on or before October 15, 2011, and the
remaining $350,000.00 on or before October 15, 2013; all payments to be made at 95
Brim Blvd., Chambersburg, Pennsylvania 17201 or elsewhere as shall be directed by
any holder hereof.
Interest shall accrue until June 1, 2010 and be payable monthly thereafter.
This Note shall evidence, and the Mortgage given to secure its payment, shall cover
and be security for any future loans or advances that may be made to or on behalf of the
Mortgagor by any holder hereof at any time or times hereafter and intended by the
Mortgagor and the then holder to be so evidenced and secured, as well as any sums paid
by any holder hereof pursuant to the terms of said Mortgage, and any such loans,
advances or payments shall be added to and shall bear interest at the same rate as the
principal debt.
In case default be made for the space of thirty (30) days in the payment of any
installment of principal, or interest, or In the performance by the Mortgagor of any of the
other obligations of this Note or said Mortgage, the entire unpaid balance of the principal
debt, additional loans or advances and all other sums paid by any holder hereof to or on
behalf of the Mortgagor pursuant to the terms of this Note or said Mortgage, together with
unpaid interest thereon, shall at the option of the holder and without notice become
immediately due and payable, and one or more executions may forthwith issue on any
judgments obtained by virtue hereof; and no failure on the part of any holder hereof to
exercise any of the rights hereunder shall be deemed a waiver of any such rights or of any
default hereunder.
This obligation shall bind the Mortgagor and the Mortgagor's successors and assigns,
and the benefits hereof shall inure to the Mortgagee hereof and their heirs, personal
representatives or assigns. This Note is assignable by the Mortgagee.
This Note is secured by a Mortgage of even date herewith upon real estate described
therein.
Witness: DGK Properties, LP,
by DGK RE LLC, its General Partner
- -- - By
---
P chael S. G ass Member
PLAINTI F'S
EXHIBIT
A-,
30f) 2 z
MORTGAGE
Ad
Made this ? day of November, 2009,
Between
39-0-0 Sao-ooa
39- 3 as - o IS-
d pi
DGK PROPERTIES, LP, a Pennsylvania limited partnership, having a mailing address of
701 Creekside Lane, Lititz, PA 17543, (hereinafter called "Mortgagor")
And
ALBERT KIRKNER and BRIAN McNEW, both adult Individuals, having a mailing address
of 95 Brim Blvd., Chambersburg, PA 17201 (hereinafter called "Mortgagee").
WHEREAS, Mortgagor has executed and delivered to Mortgagee's predecessor, Trust
Investment Group, LLC, a certain Mortgage dated May 16, 2007, and recorded In the Office
of the Recorder of Deeds for Cumberiand County on May 16, 2007 at Instrument No.
200739597, in the principal sum of Two Million, Two Hundred Thousand Dollars
($2,200,000.00); and
WHEREAS, Trust Investment Group, LLC, subsequently assigned Its Interest in the
mortgage to ALBERT KIRKNER and BRIAN McNEW on or about October 12, 2007, and
recorded In the Office of the Recorder of Deeds for Cumberland County on November 7,
2002 at Instrument No. 200742201; and
WHEREAS, Mortgagor has partially paid down the original mortgage amount, and
Mortgagor and Mortgagee have revised the payment structure under a revised Mortgage
Note for this payment of the debt secured by this Mortgage to be in the principal sum of
TWO MILLION, TWO HUNDRED THOUSAND DOLLARS ("200,000.00) lawful money
of the United States of America, and has provided therein for payment of any additional
moneys loaned or advanced thereunder by Mortgagee, together with Interest thereon at the
rate provided In the Note, in the manner and at the times therein set forth, and containing
certain other terms and conditions, all of which are specifically Incorporated herein by
reference; and
WHEREAS, this Mortgage replaces and supersedes the mortgage and the assignment
Identified above;
NOW, THEREFORE, Mortgagor, Intending to be legally bound, and in consideration of
said debt and as security for the payment of the same and Interest as aforesaid, together
with all other sums payable hereunder or under the terms of the Note, does grant and
convey unto Mortgagee, their heirs, personal representatives and assigns:
ALL the following described real estate lying and being situate in Cumberland
County, Pennsylvanln, bounded and described as follows:
See Attached Exhibit "A"
TOGETHER with the buildings and improvements erected thereon, the appurtenances
thereunto belonging and the reversions, remainders, rents, Issues and profits thereof.
TO HAVE AND TO HOLD the same unto Mortgagee, their heirs, personal
representatives and assigns, forever.
PROVIDED, HOWEVER, That If Mortgagor shall pay to Mortgagee the aforesaid debt
or principal sum, including additional loans or advances and all other sums payable by
Mortgagor to Mortgagee hereunder and under the terms of the Note, together with interest
thereon, and shall keep and perform each of the other covenants, conditions and
agreements hereinafter set forth, then this Mortgage and the estate hereby granted and
conveyed shall become void.
THIS MORTGAGE is executed and delivered subject to the following covenants,
conditions and agreements:
(1) The Mortgagor shall pay the said debt together with Interest thereon at the rate
provided In the Note In the manner and at the times set forth in the Note.
(2) The Note secured hereby shall evidence, and this Mortgage shall cover and be
security for, any future loans or advances that may be made by Mortgagee to Mortgagor at
any time or times hereafter and intended by Mortgagor and Mortgagee to be so evidenced
and secured, and such loans and advances shall be added to the principal debt.
(3) From time to time until said debt and Interest are fully paid, Mortgagor shall: (a)
pay and discharge, when and as the same shall become due and payable, all taxes,
assessments, sewer and water rents, and all other charges and claims assessed or levied
from time to time by any lawful authority upon any part of the mortgaged premises and
which shall or might have priority in lien or payment to the debt secured hereby, (b) pay all
ground rents reserved from the mortgaged premises and pay and discharge all mechanics'
liens whkh may be filed against said premises and which shall or might have priority in ilen
or payment to the debt secured hereby, (c) pay and discharge any documentary stamp or
other tax, including interest and penalties thereon, if any, now or hereafter becoming
payable on the Note evidencing the debt secured hereby, (d) provide, renew and keep alive
by paying the necessary premiums and charges thereon such policies of hazard and liability
Insurance as Mortgagee may from time to time require upon the buildings and
improvements now or hereafter erected upon the mortgaged promises, with loss payable
clauses in favor of Mortgagor and Mortgagee as their respective Interest may appear, such
policies to be deposited as collateral secured with the Mortgagee, and (e) promptly submit
to Mortgagee evidence of the due and punctual payment of all the foregoing charges;
provided, however, that Mortgagee may, at It's option, require that sums sufficient to
discharge the foregoing charges to be paid in installments to Mortgagee.
(4) Mortgagor shall maintain all buildings and Improvements subject to this Mortgage
in good and substantial repair, as determined by Mortgagee. Mortgagee shall have the right
to enter upon the mortgaged premises at any reasonable hour for the purpose of Inspecting
the order, condition and repair of the buildings and Improvements erected thereon.
Mortgagor warrants title to the mortgaged premises.
(5) In the event Mortgagor neglects or refuses to pay the charges mentioned at (3)
above, or fails to maintain the buildings and Improvements as aforesaid, Mortgagee may do
so, add the cost thereof to the principal debt secured hereby, and collect the same as part
of said principal debt.
(6) Mortgagor covenants and agrees not to create, nor permit to accrue, upon all or
any part of the mortgaged premises, any debt, lien or charge which would be prior to, or on
a parity with, the 11en of this Mortgage. Mortgagor shall comply with all laws, ordinances,
regulations, and orders of all Federal, State, Municipal and other governmental authorities
relating to the Mortgaged premises.
(7) In case default be made for the space of thirty (30) days In the payment of any
Installment of principal, or Interest pursuant to the terms of the Note, or In the performance
by Mortgagor of any of the other obligations of the Note or this Mortgage, the entire unpaid
balance of said principal sum, additional loans or advances and all other sums paid by
Mortgagee pursuant to the terms of the Note or this Mortgage, together with unpaid Interest
thereon shall at the option of Mortgagee and without notice become Immediately due and
payable, and an action of mortgage foreclosure may be brought forthwith on this Mortgage
and prosecuted to judgment, execution and sale for the collection of the same, together
with costs of suit and attorney's commission br collection of ten per cent (10%) of the total
indebtedness or fifteen hundred ($1,500.00) dollars, whichever Is greater. To the extent
permitted by law, Mortgagor hereby forever waives (a) the necessity of filing any affidavit of
non-military service; (b) all notice of levy as well as any right to request a release from levy
from any and all real and personal property levied upon or attached; and (c) the benefit of
all appralsement, stay and exemption laws and all bankruptcy or insolvency laws now in
force or hereinafter passed, any law, usage or custom to the contrary notwithstanding.
(8) From time to time upon notice given by Mortgagor, Mortgagee will release from
this mortgage certain parcels Included within the Real Estate upon the condition that the fair
market value, as reasonably determined by the holder of the Mortgage Note, of the
remaining parcels described above, is at least equal to 120% of the remaining balance due
under the Mortgage Note.
THIS mortgage and the note executed and delivered to mortgagee herewith is not
assignable and may not be assumed by any other person or legal entity. Except as
described and allowed In Section 8, above, If all or part of the real estate described
herein, or an Interest therein, is sold, transferred or conveyed by the Mortgagor, or upon
any transfer of possession of the real estate described herein by the Mortgagor whether
by conveyance, long-term lease, Installment sales agreement, or otherwise, the entire
unpaid balance of the said principal sum and all other sums paid by Mortgagee pursuant
to the terms of the note or this mortgage, together with unpaid Interest thereon, shall
become Immediately due and payable to Mortgagee. The provisions of this paragraph
shall not apply to (a) transfer by devise, descent, or by operation of law upon death of a
joint tenant or tenant by the entiretles, or (b) grant of any leasehold Interest of three
years or less not containing an option to purchase.
THIS mortgage Is taken by the Mortgagee to secure the repayment of money actually
advanced by the Mortgagee to or on behalf of the Mortgagor at the time the Mortgagor
acquires title to the property herein described, and used by the Mortgagor at that time to
pay all or part of the purchase price of said real estate, and this mortgage Is expressly
stated to be a purchase money mortgage.
AND It Is expressly certified and declared that thls indenture of mortgage is subject, In both
lien and priority of payment, to certain mortgages given by said Mortgagor to First
Commonwealth Bank to secure the payment of the principal loan sums of Eight Million
Dollars ($8,000,000.00) and Six Hundred and Fifty Thousand Dollars ($650,000.00), and a
mortgage given to Fulton Bank to secure the payment of the principal loan sum of Three
Million Dolloars ($3,000,000.00). This Mortgage shall be subordinate in both lien and
priority of payment to, and Mortgagee shall execute subordination agreements as requested
from time to time by, Mortgagor's lender or Its agents' and affiliates' lenders providing
acquisition, development and construction funds, and as refinanced from time to time.
THE covenants, conditions and agreements contained in this Mortgage shall bind, and the
benefits thereof shall Inure to, the respective parties hereto and their respective heirs,
executors, administrators, successors and assigns, and If this Mortgage Is executed by more
than one person, the undertakings and liability of each shall be joint and several.
WITNESS the due execution hereof the day and year first above written.
Witness: DGK Properties, LP,
by DGK RE, LLC, Its General Partner
BY
Member
COMMONWEALTH OF PENNSYLVANIA:
SS:
COUNTY OF Lancastan
On thisl day 0926 2009, before me, a notary public, personally Michael S. Glass,
member of DGK RE, LLC, a Pennsylvania limited liability company, known to me or satisfactorily
proven to be the persons whose named are subscribed to the within Instrument and acknowledged
that they executed the same in the capacities therein stated and for purposes therein contained,
In Witness Whereof, I hereunto set my hand and offlelal seal, MWK114 i W
Notary Public
Cartiflcate of RjUld fage 2f Mortoeaee COMMOWEA TH OF PENNSYLVANIA
Nadal sew
I hereby certify that Mortgagee's precise address Is: GM" RPublic
wp FrankNn Glounty
* ion E Vrse Nov. 9, 2011
95 Brim Boulevard, Chambersburg, PA 1720IMe1qber, Pennsv+va,,i. Assoelationof Notaries
Date: -,ee
Agent for ortgagee
ROBERT P. ZIEGLER
RECORDER OF DEEDS
CUMBERLAND COUNTY
1 COURTHOUSE SQUARE,
CARLISLE, PA 17013
717-240-6370
Instrument Number - 200938972
Recorded On 11/19/2009 At 3:39:35 PM
* Instrument Type - MORTGAGE
Invoice Number - 56346 User ID - RZ
* Mortgagor - DGK PROPERTIES LP
* Mortgagee - KIRKNER, ALBERT
" Customer - BRIAN MCNEW
FEES
STATE SPRIT TAX $0.80
STATE JCS/ACCZSS TO $10.00
JUSTICE
RECORDING FEES - $11.80
RECORDER OF DEEDS
PARCEL CERTIFICATION $20.00
FEES
ArrORDAHLE HOUSING $11.30
COUNTY ARCHIVES FEE $2.00
ROD ARCHIVES FEE $9.00
TOTAL PAID $58.50
e Total Pages - 5
Certification Page
DO NOT DETACH
This page is now part
of this legal document.
I Certify this to be recorded
in Cumberland County PA
RECORDER O
f'o /D ; rD S
• - Information denoted by an asterisk may change during
the verification process and may not be reflected on this page.
11111,1111111111111111
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SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R 44nyaerson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
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OF;r.P': FF.:..- RIFF
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2'a I I SEP -7 PM 3: 33
CUMBEf3LAND COUNTY
PENNSYLVANIA
Albert L. Kirkner
vs.
DGK Properties, LP
Case Number
2011-6507
SHERIFF'S RETURN OF SERVICE
08/19/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search
and inquiry for the within named defendant, to wit: DGK Properties, LP, but was unable to locate them in
his bailiwick. He therefore deputized the Sheriff of Lancaster County, Pennsylvania to serve the within
Complaint and Notice according to law.
08/29/2011 02:20 PM - Lancaster County Return: And now August 29, 2011 at 1420 hours I, Terry A. Bergman,
Sheriff of Lancaster County, Pennsylvania, do hereby certify and return that I served a true copy of the
within Complaint and Notice, upon the within named defendant, to wit: DGK Properties, LP by making
known unto Becky Bauknight, Property Manager for DGK Properties, LP at 701 Creekside Lane, Lititz,
Pennsylvania 17543 its contents and at the same time handing to her personally the said true and correct
copy of the same.
SHERIFF COST: $37.00
September 01, 2011
SO ANSWERS,
RON R ANDERSON, SHERIFF
!ci CrnmtySuae Sheriff . I e easuft Inc.
SHERIFF'S OFFICE
50 NORTH DUKE STREET, P.O. BOX 83480, LANCASTER, PENNSYLVANIA, 17608-3480
SHERIFF SERVICE
PROCESS RECEIPT, and AFFIDAVIT of RETURN
1. PLAINTIFF/S/ 2. COURT DOCKET NUMBER
Albert L. Kirkner and Brian C McNew Ord ?, - i? 50-7
3. DEFENDANT/S/ 4. TYPE OF DOCUMENT TO BE SERVED
IDGK Properties, LP Complaint
SERVE 5. NAME OF INDIVIDUAL, COMPANY CORPORATION, ETC., TO BE SERVED N
=* 1 6.
Properties, LP
ADDRESS (Street or
701 Creekside Lane, Lititz, PA 17543
State and ZIP
'Now, 20 ,1 SHERIFF OF LANCASTER COUNTY, PA., do hereby deputize the Sheriff of
County to execute the writ and make return thereof according to law. This deputation being made at the
request and risk of the plaintiff Sheriff of Lancaster County
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE:
service cannot be effected at the above address, please attempt to serve the Defendant at the following address:
11 Olde Hickory Road, Lancaster, PA 17601
NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon orattaching any property under within writ may leave same without a watchman, in custody of
whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriffs
sale thereof.
9. SIG URE OF OR OT ORIGINATOR print Name 10. TELEPHONE NUMBER 11. DATE
A.? Paul T. Scheme) Esquire 1(717) 597-0200
12. SEND ROTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW:(This area must be completed if notice is to be mailed)
IPaul T. Schemel, Esquire - Dick, Stein, Schemel, Wine & Frey, LLP -119 East Baltimore Street, Greencastle, PA 17225
.. ....... .................... .... .... ......
X13.1 acknowledge receipt of the writ NAME of authorized LCSO Deputy or Clerk 14. Date Received 15. Expiration/Hearing Date
or complaint as indicated above Yvette Turco 717 723-4519 06/22/2011 09/16/2011
16.1 Hereby CERTIFY and RETURN that I have personally served, have legal evidence o service as shown in "Remarks", have executed as
shown in "Remarks", the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual,
m o g i n r s n in TR n ATT T P t r f
. at t?e add 17. ere certl an return a in wecause am una a to ocate t e In Ivl ua , ompany, corporation, etc., named above.
R1
Name and title individual Served(if not sh n above) (Relationship to Defendant)
19
F No Service See Remarks Below
r .
20. -Address o where served ( ompl a only it different than shown a ove)(Street o D, Ap rtment No., City, 21. Date of Service 22. Time A
Boro, TWP, State and ZIP Code) ESA DD .
??a 1 ? 1 a:a
23. Attempts Da Miles Dep. Int Date Miles D Date Miles Dep. Int Date Miles Dep. Int Date Miles Dep. Int
24. Advance Costs 25. ervice Costs 26. Notary Costs 7. Milea ostage/N.F 28. Total Costs 29. COST DUE OR REFUND
30. Remarks:
S.T.
31. FIRMED and subscribed to before me this
34. day of
20
SO
CS', oj
37• 35. Signature
Prothonotary/Deputy/Norary Public \ 1
MY COMMISSION EXPIRES I MARK SJWESE, ACTING SHERIFF O LANCASTER COUNTY PA
.A
IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH
ALBERT L. KIRKNER and BRIAN C. McNEW, Civil Action - Law -'
Plaintiffs :?= > --
• r-r c? •--
V. No. 11-6507 'r
,
"C'
DGK PROPERTIES, LP, ;
?, 4 C
-
Defendant Mortgage Foreclosure 5:c
PRAECIPE TO ENTER JUDGMENT AGAINST
DEFENDANT FOR FAILURE TO PLEAD
To the Prothonotary:
Please enter judgment of mortgage foreclosure against Defendant DGK Properties, LP for
failure to plead to the Plaintiffs' Complaint and assess damages at $1,978,687.80, plus interest,
costs and attorney's fees. The undersigned hereby certifies that a written notice of intention to
file this Praecipe, a copy of which is attached hereto, was mailed to the Defendant on September
20, 2011.
Respectfully submitted,
Date: /p13111
121- /? - -
Paul T. Schemel, Attorney for Plaintiffs
Dick, Stein, Schemel, Wine & Frey, LLP
119 East Baltimore Street
Greencastle, Pennsylvania 17225
(717) 597-0200 PA Bar No. 83958
?,?} ?I?•oo?d all
t? Ilk- S a
IN THE COURT OF COMMON PLEAS OF THE 9T" JUDICIAL DISTRICT
OF PENNSYLVANIA - CUMBERLAND COUNTY BRANCH
ALBERT L. KIRKNER and BRIAN C. MCNEW, Civil Action - Law
Plaintiffs
V. No. 11-6507
DGK PROPERTIES, LP,
Defendant Mortgage Foreclosure
NOTICE OF INTENTION TO ENTER DEFAULT JUDGMENT
To: DGK Properties, LP, Defendant
Date of Notice: September 20, 2011
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.
LEGAL REFERRALS
PA Bar Association
Lawyer Referral Service
(800) 692-7375 (PA only)
(717) 238-6715]
Date. September 20, 2011
Paul T. Schemel, Attorney for Plaintiffs
Dick, Stein, Schemel, Wine & Frey, LLP
119 East Baltimore Street
Greencastle, Pennsylvania 17225
(717) 597-0200 PA Bar No. 83958