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HomeMy WebLinkAbout02-0432FEDERMAN AND PHELAN, LLP By: FRANK FEDERMAN, ESQ., Id. No. 12248 LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 HOMESIDE LENDING, INC. S/B/M TO BANCPLUS MORTGAGE CORPORATION 8120 NATIONS WAY BUILDING 100 JACKSONVILLE, FL 32256 Plaintiff Vo DANIEL L. CUTCHALL A/K/A DANIEL L. CUTSHALL REBECCA D. BREI-IM 340 WERTZ RLrN ROAD CARLISLE, PA 17013 ATTORNEY FOR PLAINTWF COURT OF COMMON PLEAS CWIL DWISION TERM CUMBERLAND COUNTY Defendant(s) CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE NOTICE **THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. ** You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other fights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 Loan #: 10848535 IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. § 1692 et seq. (1977), DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S) DO SO IN WRITING WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL OBTAIN AND PROVIDE DEFENDANT(S) WITH WRITTEN VERIFICATION THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED TO BE VALID. LIKEWISE, IF REQUESTED WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING, COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S) THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM ABOVE. THE LAW DOES NOT REQUIRE US TO WAIT UNTIL THE END OF THE THIRTY (30) DAY PERIOD FOLLOWING FIRST CONTACT WITH YOU BEFORE SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH THE LAW PROVIDES THAT YOUR ANSWER TO THIS COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION OF THAT TIME. FURTHERMORE, NO REQUEST WILL BE MADE TO THE COURT FOR A JUDGMENT UNTIL THE EXPIRATION OF THIRTY (30) DAYS APTER YOU HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY (30) DAY PERIOD THAT BEGINS UPON YOUR RECEIPT OF THIS COMPLAINT, THE LAW REQUIRES US TO CEASE OUR EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL WE MAIL THE REQUESTED INFORMATION TO YOU. YOU SHOULD CONSULT AN ATTORNEY FOR ADVICE CONCERNING YOUR RIGHTS AND OBLIGATIONS IN THIS SUIT. Plaintiff is HOMESIDE LENDING, INC. S/B/M TO BANCPLUS MORTGAGE CORPORATION 8120 NATIONS WAY BUILDING 100 JACKSONVILLE, FL 32256 The name(s) and last known address(es) of the Defendant(s) are: DANIEL L. CUTCHALL A/K/A DANIEL L. CUTSHALL REBECCA D. BREItM 340 WERTZ RUN ROAD CARLISLE, PA 17013 who is/are the mortgagor(s) and real owner(s) of the property hereinafter described. On 8/19/94 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to PLAINTIFF which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No. 1229, Page 345. 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 8/1/01 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 by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. The following mounts are due on the mortgage: Principal Balance Interest 7/1/01 through 12/1/01 (Per Diem $9.74) A~tomey's Fees Cumulative Late Charges 8/19/94 to 12/1/01 Cost of Suit and Title Search Subtotal $43,118.16 1,499.96 1,225.00 88.30 550.00 $46,481.42 Escrow Credit 0.00 Deficit 109.39 Subtotal $109.39 TOTAL $46,590.81 The attorney's fees set forth above are in conformity with the Mortgage documents and Pennsylvania Law, and will be collected in the event of a third party purchaser at Sheriff's Sale. If the Mortgage is reinstated prior to the Sale, reasonable attorney's fees will be charged. The Combined Notice has been sent to the Defendant(s) by regular and certified mail as required by 35 P.S. §1680.403c. The Temporary Stay as provided by the Homeowner's Emergency Mortgage Assistance Program, Act 91 of 1983, has terminated because either: (i.) Defendant(s) have failed to meet with the Plaintiff or an authorized Credit Counseling Agency in accordance with Plaintiff's written Notice to Defendants; or (ii.) Defendant(s) application for assistance has been rejected by the Pennsylvania Housing Finance Agency. WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $46,590.81, together with interest from 12/1/01 at the rate of $9.74 per diem to the date of Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. FRANK FEDERMAN, ESQUIRE LAWRENCE T. PHELAN, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff ' AFTER RECORDING ~ TO:. BANCPLUS MORTGAGE COflP. MID ATLANTIC CCD- N. BRt.~ISWICK 859 RTI NORTH 2ND FLOOR I~ORTH BRUNSWICK. NJ 08902 [ Space Above This Line for Recording Data ] MORTGAGE THIS NIORTGAGE ('SectJ~/ Instrumefl[.) is given on AUGUST 19 mortgagor is LOAN #: 10848535 · 1994 . The DANIEL L CUTa-IALL AN UId~___*_I:~RIED ,.u,*,~N ~bECCA D. BP~HM AN tJNMARRIEI;) WOMAN ('Borrower~ This Security Instr~nent is given to BANCPLUS MORTGAGE CORP, which is organized and existing u~ler the laws of the State of Texas , an~ whose address is 9601 MCA~ i ~eTER FREEWAY. SAN ANTONIO. TX 18219 ('Lender'~ Borrower owes Lender tl-,e principal sum of .......................... FORTY SEVEN THOUSAND I~/ENTY FIVE AND NOI100 ...................... Dollars IU.$ $4~ .... ~1. This debt is evidenced by Borrower's note dated the same date is this Security instrument f'~k)te.), which provides for monthly payments, with the full debt, if not palcl earF~r, due and payable on SEPTEMBER 01. 2024 This Security Inslrument secures to Lendec. (a) the repayment of the debt evidenced I~y the payment of all o~her sums, with interest, advanced under paragraph 7 to protect the security of this Security Instr~T~ and (c) the performance of Borrower's covenants and agreements under this Sectxity Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender the following described property located in NORTH MIDDLETON TOWNSHIP. CUMBERLAND County, Pennsylvani~ SEE ATTACHED .CCHEDULE A MAILING ADDRESS:. 340 WER'rZ RUN ROAD · .CARLISle.. PA 17013 which has the address of 340 WER ~ARLISLE (Str~ et, ('Property Address'); ._ROAD y). Pennsylvania 17013 {Zip Code) TOGETI-ER WITH all the .'..mprowtnents now or hereafter erected on the property, end all easements, appurtenances. ~d fixtures now or her.~fter a part of the property. All replacements and additiorts shall also be covered by u,,s Security '.;trun, n'. All of the foregoing is referred to in this Security Instrument as the "Property." PENNSYLVANIA-Single Family -Fannie MaelFreddle Mae UNIFORM INSTRUMENT Form 3039 3190 1.995 Rev. 02/94 Page 1 of Gl - 345 ' BORROWER COVENNVTS that Borrower is lawfully seised of the estst3 hereby conveyed and has the right to mortgage. Ip'~t and convey the Property ar~ that the Property is Lr~ncumbered. except for Im=~rnbrances of reco~d. Borrower warrants and will defend generally the tiiJe to the Property against all claims and denmaflcls, subject to any encum~ances of recorc[ THiS SECtJRI~ INSTRLIIW~ combines uniform covenants for national use ~ non-uniform covenants whim rmmitod variations by jurisc~fion to constitute a uniform security instrument covering red property. UNIFORM COVENANT~ Borrower and Lel~ler covenant and agree as follow~ I. Payment of Principal and Interest; Prepayment and Late Charges. Borrower shall promptly pay when due the principal of ami interest on the ,·,bt e'?lenct~l by the Note and any prepayment and late charges due ~ the Note 2. FUnds for Taxee anti Ineuranoe. Sul:,~ct to applicable law or to a written waiver by Lemler, Borrower shall p~y to Lender on the day monthly payments ~'e ~clu~., under N Note, un~l the Note is paid in fall, · sum I'f-unds-) fo~. Ca) yearly taxes and a~sesbments which may attain priority over tt~s Security Inslru~ent as a lien on the Property; (b) yearly ~le~l~ 13ayrnents or grcxz~l, re~,ts on the Property. if am/; lc) yearly hazard or pr"4)erty premiums;' (c~ yearly flood insurance premiums, if any; (e) yeah7 mortgage insurance premiums, if any;, ~ (f) any ~ payable by Borrower to L~nder, in accordance with the provisions of paragr?h. 8, in lieu of. the payment ~,f .mort.~iga insurance ~remium~ hH a afl ca#ed Escrow Itemt Lender may, It any time, collect &.~ hold Funds in an a~unt not to exceed the maximum amount a lender for a federally related mc,~gega loan may require for. Borrower's escrow acccunt ~Kler the federal Real Estate Settlement Prell Act or 1974 Il amended from time to time, 12 ~C. Secticxl 2601 .~ sec{ {'RESPA'), unless another law that applies the Funds I lesser If Lendm' may, at arty time, collect ancl hold Ftz~s m an amount not to exceed the lesser an~x~t. Lender may estimate lhe amount of Funds due on the 'lYlsi~l'Of c~J?ent'datl:.lod"rla~mable eatirnatel or-ex--es of ,futur~ Escrow otherwise in accordance with Upl~icable law. The Fumls shall be ~ in an ~ whose deposits are in,xed .b.v .a feder.al agency, in~ruments#ty, or maty ~noluding Lender, if LKer il ~uch an institution} ..or ~n any ~al Home Loan Bank. Leml~ ~ apply l~e Fun~$ to PW ~ Esorow Lemler m~/ not charge Bon'ower for ~ a~l applying tt~ r-~,xla, annually analyzing fl~e esorow account, or verifTing l~e Es~ow Items, unless Lender pays Bo~.ower interest on the Fum~ ~ Upplicable law permit~ Ler~ler to make such a charg& However, Lemler mW require Borrower to ~ · one-time ~arge .f. or ~ independ?t real .estate .tax reposing sea, ice used by Lem~er in com~e~tio~ w,~ .l~il loan, unto. sa apphcable provides olt~rwi~ Unlell an agreement il made or aluf)l~cable law requires interest to pa{d, Lender shall not be required to pay Borrower any interest or eerninga on the FundL Borrower and Lencl~ may agree in writing, however, that interest shall be paid on the ~owi~g crecitl ·nc( debits to the Pundl and the pu'p,~se for which each debit to me I=undl wit madl. The ~ ere pledg4d se Ick:litiona{ I~.~rity for all luml lecured by If the r-~ held by Le~dar exceed 1he ~ permitted to be held by applicable law, Lender ~ accmmt to Borrower for the excess Funde in accordance with the requirements of q~plical~ Iiw. If the amo~z~ of lhe r-~a held by Leveler at any time is not ~ff*~ to pay I~e E~'ow !~ when due. Lender may Io notify Borrower in writinG, ~ ~ ~ case 9orrower shall to Lender ttm amount necessary to make up the deficiency. Bo~'ower ~ make up ~P~deficiency in no more than twelve moflthly Upen payment in ful of Idl s~ns secured by this Security inst~J~ent, Lender shall shall apply amy F-t~da held Imy Le,x~ at the time of acqL. s~t~or, or ~,~e as a crea,: ~ga~s~ L~gS Rev. 021~4 Page 2 of 8 Form :3039 OBIg0 3. Applio~i~t of P~mmnt~. Unless qN~licable law provides otherwise, all payments received by Lender trader paragraphs I and 2 shall be appliect first, to any prepayment charges clue ~der ~e Not~ second, to an~ounts payable ~ par~lrq:~ 2; third, to interest due; fox,th, to principal d~ end last. to eny late chm'ge$ due under the Note. 4. Clmrge~; Uen~. Borrower shall ~ all taxes, ~ssessrn~ts, charges, fines and impositions .;.~,ZMJI3d~ to tho Property which may attain I~i~,ity over this Security Instrument. and leasehold payments or gro~mcl rents, if ~/. Borrower shall pay these obl'~tions in the mariner provided in paragraph 2. or if not paid in that maoner. Borrower shall ~ly them on ~ cirectly to the person owed payment. Borrower shall promptly fulTr.~l to Llra.tl' ~1 nol~.ll of Imountl to b~ ~ undo' thil p,tr~gl';K:~l, If Borrower rr. akel these I~ directly. Borrower shall Promptly f~'nlsh to Lender receipts me payrrmn Borrower shal Promptly ~mcharge any lien which has priority over Otis Security within 10 cl~ys of 1he giving of notk~ 5. Hszerd or Property Inouruneo. Borrows- ~ keep tho knprovernlntl now existing or hereafter erected on t~e Property insured .gainer loss by fire. hazards included wi~in for which Lender recluiroo imu'anct This inmJ'ence shill bo · o I:)eriodl thit Lencler rOcluirot Tho infu'ence c~rrier Providing l~o inmJ. enct Ihall be chosen by Borrower ~bject to Lender's 4:~ovd w~ ~ not be ur~e~=~bly witN~14 If Borrower flus tO n~ntsin coverlge delcribed .Ib0ve, Lender mly, It Llnder'l optio~ obtairr coverage.to'protect Lendel'S rights in trw Pr~or~y in accordmee,with-pmagrag~-7~- standard mortgage ~ Lender ~ have tim right to hold the policies and r~newal*. If Lender require~, flcrrower ~ promptly give to Lmder ~1 receipts of paid ;remka~s and renewal not~ce~ in the event of Io~, Borrower aha# give prompt notice to the insurance carrier and Lender. Lm~er may make proof of Iosa if not made pronq~tly by Borrower. Unle~ Lender and Borrow~ ottmrvvise agree in writing, instance proceeds ~ be ag~ to re~oriticm or repair of the Property dlrmged, if the re~torition or repair is economicaly fom,lde end Lenclr's security m not icesen4cL If tho restorotion or repair is not econonllCally feed~ or Lender's security would be lessened, trw in~ur~nce proceeds ~ be ~ to I~ .~rns ~ec,~red by this Security instrument, whether or not then due. with ~y excess ~ to Berrow~. !f Sorrower d~ndons the Property, or doe~ not within 30 d~y~ · ~ from Lender that I~ ir4u'anc4 c,~rier his offlred t~/ lettle · ~ th~n L.~ler m~y collect the in,fence proceed*, Lend~ rr~ uM ~ r,'oceecls to repair or r~tor® the Prcl~rty or to pay ~ seared by t~is Security Instrurrmnt. U,".se 1.4ndlr Ind Borrower o~herwise agree in writing, 8ny epplicitton of proceeds to i~'ir~.~ 8hall not extend o~ postpcr~.the c~Je dom of the monthly plyments reforred to extlnt of the I~evm lec~ed by ~ Sec~'ity ins~-urrmnt irrrned~itely prior to the aCCl~mtion 6. OOeulmn4y, Proe4nml~on, Mointenm~e md I'Totectlon of the Property:,, ~owe'e Lorn Al~lt~llo~ Loeedmlds. 8crrower shall occupy, eit0blish, end use tM Prol:)erty 11 BoryOWgr'l princilMI residence ~ ~..t.*y doyl ,fter tr~ exoc:utlon of ~l Sec~ity Irmtrtm~nt m~l ~ ~ to occ~y ~ Property is Borrower's principal r~nc~ for It ~ ~ ye~ sft~ I~e c~te of occ~ency, Lflless L~I~ olt~'wi~ agrees in writing, whch cGnsent alWl not be ur~-eosofld~y withhokl, or urdess extenuating 1:).2U r, .r 3.17 circumstances ~xist which are beyond Borrower's control. Borrower shall not destroy. damage or impair the Property, allow ~ Prol~t~..to det~iorato, or commit wast· on th~ Prof~rty. Borrower ~ be in default i~ any torTm~e ac=on or proc··ding, whet~r civil or criminal, is beg~ that in Lender's good fai~ judgment could result in forfeits· of the Propers/ or otherwise materially ~ the lien created by this Security Instrument or Lend..~$ ~ i~.~reat. Batrower may cure such · default and reinstate, as provided in 18.f~h dltl~mk~3~ eCk~des f~f 'em're by a~u~i~y] thl actionpror proceecFe~gto be dismissed with· ruling that, in good ' ' · of the Borrower's inter.~st in Property or other material impairment of the lien created by this Security instrument or Lender's security inter·at. Borrower ~ also be in default if Borrower. during t~e loan applic~on procees, gave rnaterb~ false or inacc~ate information or statements to Lender (or failed to provide Lender ~ any material information) in connection with the loan evidenced by the Note. indiucb~ but not renitod to. representations concerning Borrower's occupancy of the Property as · principal residenceL If this Security Instrument is on · leasehold. Borrower ~ comply with all the provisions of the leas~ If Borrower acquires fee title to the Property. ttm leasehold and the fee title shall not merge ~fdese Lender agrees to the merger in 7. Protection of Lmtdet'e Rigltt~ in the Property. If Borrower fails to perform covenae~ and igreemmv~ cantlined in this Sec~'ity Inst.'ument, or t~ere is · legal proceeding that may aignif'm, antly ·ffect Lender'l rights in the Property_ ~ as · proceeding in bmdu~ptcy, prc~bato, for condemnation or forfeiture or to enforce mw· or reguist.=ns), t~en Lender may do md pay for whatever ia necessary to protect the value of the Property md LendeCs rights in the Property. Lend·Cs actJorm may include paying any re,=x , attom,y f? ,nd ·nm. .on .the .Property.to . ke.r,p r der may take action trader ~ par·graph 7. Lanoer cmee not nave. to ao ~ ......... of Borrows' ~ecured by ~ Security ~ Unless Borrower and Lender agree to otf~er terms of paym. wt. these amount4 shall bear interest from the date of disbursemen~ st ltm~Note rA;· ami :=.~1 bi. I~/.l~ge. with. ir~#.~..t~ upon notice fr .o~n.~.Lander to ~.?.wer ~. Martgege In,mi'me. If Lender required mortgage inl~'ance I1 · cor~dition of mak~g ~he loan secured by this Security Inatr~ment, Borrower ~'mll pay the prerni~'ns required ~o rrmint~n Ih· mart~ge instance in effect. If, for my reason, the ~ · ~ur,~e coverage req~red by Lander I~eee or cemms to be in effect, Borrower Ihlll pa~ t~e pr·miens required t~ a~tain co.ver~g~., sub~t~.tiall¥ equiv~lant to the rnortL~e instance pre-~o~dy in effect, at · coet ~ eq~v~lent to ~e coat to Borrower of f~e mortgage .'murmce previcu~y in effect, from m ~terrmte .m~g~ge ~.~r..er ,;)proved by Lender. If mb,rankly · .~valent mortgege in~rmce coverage m .no~ ~vmm~m, Borrower ;.~:l~ pay to L~der each month , ~m equal to one-tweifm ot me ~year~.~ mortgage insurance prem' m being paid by Barrowar ~,4~n Ih· insurance coverage..,.~ or ceded to be in effect. Lertder d Iccl~t, ull Ind rltlin thlll plymlntl II · lois reserve in lieu effect, or to pt~le · ~ raserve. ~ the requiem·hr for mortgage ~tsurance e~s I. In~metk~ Lender ar itl ~gent m~y m~e reasonable entries upon and inN)ections of the Prot~erty. Lender ,hall give Borrower notice at the time of or prior to an inspection q~ec~fying reamm~e ca~e for the in,pect~x~ I~. ~ The proceed· of my ~vard ar claim far deranges, er~'ect or camequant~ in connoc~m wire any condmmat~ or omer t~king of any part of the Property. or for ~ in ~eu of condemnation, are hereby assigned and eh·Il be plid to Lender. ~ Rev. 02/14 P~ge 4 of 8 Form 3039 09190 In the event of a total taking of the Property, the proceeds shall be applied to the sums ~ecured by this Security ~rument. whether or not then due. with any excess paid to Borrower. In the event of · pm-tiaa taking of the Property in which the fair market value of the Property immediately before, the taking is .equal to or greater than the .amount of the sums secured by this Secur,ty Instrument ,mmedlately before the tskJng, unless Borrower and Lender otherwise egree In w~-itin~ the sums secured by this Security Instrtrnent sh&l be recited by tim' ~nount of the proceeds multiplied by the following fractiort (a} the total amount of the sums secured if~ately before the taking, divided by (b) the fair rnarket value of the Property immed'~ttely before the tskir~ .~.y balance shall be paid to Borrower. In the event of ~. p. arl~i tsk'.~, of the. Pro..~ ~ wh,~h ~e .fa!.r market vaiue of the Property immecrmtely .t?tore the ~King is less man me amount .or me sur~.s secured ~y before ~e tsk~g, unless Borrower and Lw~ler othervv~se agree ,~ w~iting or tmlese ap91~ law otherwise provides, the proceeds shall be applied to the sums secured by this Security Instrument wt'4t~r or not ~e sums are then du& If the Property is d~ioned by Borrower. or if, after notice by Lander to Borrower ttmt the condemnor offers to make an sward or settle s claim for damages. Borrower fails to retpond to Lender within 30 days after the date the notice is given, Lender is m~tt~rized to collect md apply the proceeds, et its option, either to restoration or repair of the Property or to the sums secured by this Security Instrument. whether or not then dui Unless i:ender taxi Borrower otherwise agree In writing, any application of Proc&ads to principal shall not extend or' postpone the due date of tt~ monthly payments referred to in paragraphs I and 2 or chmge the wn<x~t of s~h pwrnent$ 11. Borrows' Not Releued; Forbearance By Lender Not s Waiver. Extension of the time for I~yment or modification of a~ortization of the sums secured by this Security Instrument ~rm~ed by Lender to my ~ucces.~or In interest of Borrower shall not operMe to release the liability of the original Borrower or BorroweCs successors in interest. Lender ~ not be required to commence proceedings ~gainst any successor in interest or ref?.s.e tO extend time for payment or otherwise modify ,tmortiution of t~ sums secured by m,s Se~i~lnStrumeht bY reasOn'old'any ¢~ ~"~;~: the or. i. ginat 8orrower~or Bon'oweCs .... successors in interest Any forbearance by Ler~ in exarc,s~g any right or remedy shall not be s waiver of or preclude the exercise of any right or remedy. 12. Successors end Aseigrm Bound; Joint end Several Uebllity; Co-signers. The covenants and ~greements of t~ds Security Instr~J~ent shall bind and benefit the successors and assigns of Lender and Borrower, subject to provisions of paragraph 1.7. eorrowm'e covmants and ~greements sh~ be joint and who several. Any Borrower co-signs thai Security Inst'ument but does not execute the Not~ (aa is co- signing this Security Instrument ~,y to mortgage, grant and convey that Borrower's interest In the Property ~ the terms of this Security Instrunmnt; (b) is not personally obligated to .pay the sums secured by this Security Instrument: and (c) sgrees that Lender and any omar Borrower may ~gree to extend, modify, forbear or make any ~ccommodations with regard to the terms of this Security Instrument or the Note without that BorroweFs consent. 13. Lo~n C~mrgeL If the loan secured by this Security Instrument is subject to s law which sets maximin loan chargas, and that law is finally interpreted so that t~ interest or othiN' ~ char~s co#ected or to be collected in cot,/lection with the loan exceed the permitted limits, tl'~rc ~) ~/ such loan charge s~ll be re;kJCed by ~ amount necessary to reckJce the charge to the permitted limit: and (b) any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower. Lender may c~K)ose to make thie refund by reckJCi~l ~ principai owed under the .Note or b.y. m~ing I direct payment to Borrower. If a ref~xl reduces principal, the reckJcUon will be treated as · partial 114. Notl~e~. Any notice to Borrower provided for in this Secdrity Instrument shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another me'6x~ ~ no,ce shallbe directed to the Property Address or any other address Borrower designates by notice to Lender. Any notice to Lender shall be given by first class ma1 to Lender's address stated herein or r~ny other address Lender designates by 1.995 Rev. 02194 Psge 5 of 8 i 'oo 12 9 3.t0 Form 3039 09190 notice to Borrower. Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender when given as provided in this paragraph. 15. Governing I.w.~, Severablllty. This Security Instrument shal! be governed by feder~t law and ~ law of ttm jurisd'~tion in which the Property is locatecL In the event that any provialo~ or clause of this Security Instrument or the Note conflicts with appiicable law, such conflict ~ not effoct other provisions of this Security Instrument or the Note which can be given effect without the co~.flicting provision. To this end the provisions of this Security Im,tru~mnt and the Note are declared to be severable. 16. Borrower'e Copy. Borrower shall be given ene conformed copy of the Note and of this SacurRy In,b-urr~nL 17. Transfer of the Property or m Beneficial Interest In Borrower. If all or any part of the Property or any interest in it ie mid or transferred (or if s beneficial ~.-~terest in Borrower is sold or transferred and Borrower is not I natural person) without Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by ttds Securit~ fm, trument. However, this option shall not be exercised by Lender if exercise is proh~ited by federal law as of the date of this Security Instruf,~ent If Lender exerci~,a th~ option, Lendm' ~ give Borrower notice of acceleration. The notice shall provide · period of not Ieee t~n 30 days from the date the notice is delivered or mailed within which Borrower .must pay all sums secured by this Security instrument If Borrower fal, to pay these sum~ prior to the expiration of this period, Lender may invoke any remm~e perm~'~ed by this Security Instrument without further notice or demand on Borrower. 18. Borrower'e Right t~ Rein~tate. If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security instrument discontinued at any time prior to Ute earlier of:. Iai 5 days (or such other period as applicabl.e la~v. may..apec, if.y for reinstatement) before sale of the Property. pursuant to any. pow.er or sm.e. conTa,nea m this ~.Secur~ty instrument; or ~1 entl~.of,~e ..judg;~mt enforc~g ttlis..SecurJty,,Jnstr~t.~, Those condifion~ are that Borrowec. (a) pays Lender all sums which then would be due under this Security instrument and the Note u if no acceleration had occurred: (b) cures any default of any other covenants or agreements: (c) pays all expenses incurred in enforcing this Security Instrt~te~t, including, but not limited to, reasonable attorneys' fees; and (cO takes such action as Leoder may reasonably reqcire to assure that the llen of this Security Instrument, Lender's rights in the Property and Borrower's obligation to pay the sums secured by this Sectx~/ Instrument shell continue unchanged. Upon reinstatement by Borrower, this Security Ins~mnent and the obllgafiorm secured hereby shall remain fully effective as if no acceleration hac~ occurrec[ However, this right to reinstate shall not apply in the case of acceleration ~ paragraph 17. 19. Sale of Note; Change of Loan Serwlcer. The Note or a pa-tiaa interest in the Note {together w~th this Secrecy instrument) may be sold one or more times without prior notice to Borrower. A sale may result in a change in the entity (known as the "Loan Servicer') that collects monthly payments due under the Note and this Security Instrument. There also may be one or m~e changes of the Loan Servicer unrelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given written notice of the change in accordance ~dth paragraph 14 above and applicable law. The notice will state ltm name and address of the new Loan Servicer and the address to which payments should be made. The notice will also contain any other information required by applicable law. 20. Hazardmm S~bstan~ea. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, enyltdng affecting the Property that is in violation of any Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage on trw Property of small quantities of Hazardous Substances that are generally recognized to be ap~'opriate to normal residential uses and to maintenance of the Property. Borrower ~lall promptS/ give Lender written notice of any investigation, claim, 1.995 Rev. 02/94 Page 6 of 8 o- 122 J 350 Form 3039 09~90 demm~ lawsuit or otter action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower h~ actual knowledge. If B~,ower learns, or is notified by any governmental or r~fe~ory autt~:,'ity, t~. any removal or other remedlation of any Hazardous Substance a _.ect~ the Pr.sperry !?. _nec.essery, Borrower shall promptly take all necessary remedial As used in this par~ 20, .'Hazardous Substances" are those substances defined as toxic or hazardous substances b~t Environmental Law and the following substance~ gasoline, kerosene, other flm'rnablo or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive rnaterial~ As used in this paragraph 20. 'Environmental Law' means federal laws and laws of ~e jurisdictiofl where the Property is located that relate to heal~, safety or NON-L~IFORM COVENANTS Borrower and Lender further covenant and agree as follows 21. Acceler~ion; Remedies. Lender shell give notice to Borrower prior to acceleration following Borrowm'a broach of any covenant or agreement ;n this So~rity Iflstrume~t ~ not prior to acceleration uflderparegraph 17 unless applicable law provides obrwJee). The notice shell specify: (8)the default; (b) the action required to cure tho default; (c) · date, not loss than 30 days from the date tho notice la given to Rorrower, by which tho defaces must be cured; and (cO that failure to cure tho default o~ or before tho dote specified in tho notice may result In acceleration of tho sums secured by thio Security Instrument end sale of the Property. Tho notice cheil further Jflform flOITOWW of the right to rolnstlto after aeoelarstiorl and the right to mart In tho fOrenloo~re proeoodlf~g the no,-existence of · default or eny other defense of Borrower to acceleratio4~ wed sale. If tho default Is not oared on or before tho date specified Iff tho notice, !.~ at itl optIo~ may require Immediate paymant Iff full of ell oume secured by this Security Instrument without further domeml and may Invoke tho poww of sale end any ol~ remedies permitted ,by applicable-low. Landor shall be entitled to sellout all expenses Incurred in pursuing the remedies provided In thio paragraph 21, insluding, but not limited to, rsssoneblo attorneys' fees and ooetl of title .tvJdeflco to tho extent permitted by applicable Iow. 22. Release. Upofl payment of all sums socu'ed by this Security instrument this Soctrity Instrtrne~ and tho estate coflveyod shall terminate and become voicL After such occurrence, Lem.~er shall discharge and satisfy this Security Instrument without charge to Borrower. Borrower shall pay any recordetiofl coat~ 23. Waivers. Borrower, to tho extent permitted by applicable law, waives end releases ~ error or defects in proceedings to oflforce this Security Instrument, and hereby waves the benefit of any present or future laws providing for stay of execution, extension of time, exemption from attachment, levy and sale, and homeste0d exemptior~ 24. Reinstltement Period. Bo~'ower'o time to reinstate provided in paragraph 18 shall extend to offs hour prior to tho commencement of bidding at a sherifYs sale or o~ar sale pursuant to this Sectary Insb3Jment. 25. Purchase Money Mortgage. If any of the debt secured Ir~ this Security Instrtxnent is lent to Borrower to acquire title to the Property, this Security Instrument shall 2~. Interest Rate After Judgment. Borrower agrees I~tt the interest rate payable aftra' a judgmoflt is entered on the Note or in an ection of mortgage foreclosure shall be the rate payable from time to time under the Not& 27. Rider8 to thio Security Instrument. If one or more riders are executed by Borrower md recorded together with this Soctrity Instrument, the covenants and agreements of each such. rider shall bo incorporated into and shall amend and supplement 1.999 Rev. 02194 Page 7 of 8 '00 122tt fac[ 35t Form 3039 09190 tim covenants and ~greements of this Security Instrument as if the rider(s) were a part of this Security Instrument Chec~ applicable box(es): I'"'] Adjustable Rate Rider O ComJom. inium Rider I--1 1-4 Family Rider F-'] GrmJuated Payment RiderO Planned Unit Development Rider[-"] Biweekly Payment Rider O Balloon Rider O Rate Improvement Rider E] Second Home Rider J'~ O~er(S) (Specify) Tn".~ ,~-~U.~,.,:U_N BY SIGNING BELOW, i3orrower acceBts andAgrees to the terms and covenants contained in t~ie Sect~'ity Instrument/~nd in ~y/'~el'(~jxj~"~m;I by Borrower and recorded with it. aorr er //  (Seal) REBECCA D, BREHM Witnesr.(esY. (Seal) VVitness(es~ Cortifieme of Residence I, TRe~ R:~u~< , do hereby certify that the correct address of the within-named Mortgagee is 9601 ]vl~ll;_..L~ r~;~.~ _ Witne/s my hind thil _~ c~y of ~. ~__/ · ,,lei Below Th,l Ll~e_/f~r Ackl~wl~dgmen,] ~~..; ~OMMONWEALYH OF PENNSYLVANIA. 'J County instr~iect and Icic~)wledged t~mt executed ~ s~m for the purposes herein I bmr ' '~'~':"~ IN W1TI~=SS [Vu~&'ar-r~ eunto set my I~-ncl and official seal . Seal · ·· · Title of Officer THIS INSTRUMENT WAS PREPARED BY BANCPt. US MORTGAGE CORP. LSg~ 02194 Page 8 of 8 122 352 Form 3039 9~90 .ALL THOSE TWO CERTAIN tracts of land situate in North Middleton Township, Cumberland County, Pennsylvania, bounded and described in accordance with survey made by Thoma~ A. Neff, Registered Surveyor, on June 23, 1967, as TRACT NO. 1: BEGINNING at a'post at a corner common to the within described tract of land and lands now or formerly of John }l. Ney, and lands now or formerly of Elmer E. Lay; thence by said lands now or formerly of John It. Hey, North 44 degrees 45 minutes East'a distance Of 150 feet to an iron pin; thence by Tract No. 2 herein, formerly lands of Clarence Samuel Shughart and wife, South 44 degrees 15 minutes East'a distanCe of 100 feet to an iron pin; thence by land now or formerly of Clarence Samuel Shughart and wife, South 44 degrees 45 minutes West a distance of 150 feet to an iron pipe on line of land ~%ow or formerly of Elmer E. Lay: thence by said land now or formerly of Elmer E. Lay, North 44 degrees 15 minutes West e distance of 100 feet to a post, the Place of BEGINNING. CONTAINING 100 feet in width along the northeastern line, and e~tending in depth in a southwesterly direction at an even width a distance of 150 feet. TOGETHER with right-of-way for the purpose of ingress, egress and regress to the above-described tract of land, extending at a widt~ of 16 feet in a northeasterly direction from the within conveyed tract of land to the Wertz Run Public Township Road, the length of said right-of-way being approximately 250 feet, the northern line of said right-of-way being parallel to the northern line of the within described tract and land of Clarence Samuel Shughart and wife, and 84 feet distant therefrom. TR3%CT NO. 2: BEGINNING et a spike in the centerline cf Township Road T-499, at corner of land now or formerly of John H. thence along the centerline of said Township Road T-499, South degrees East a distance of 100.78 feet to a spike; thence along line of land of Clarence S. Shughart and wife, South'44 degrees 45 minutes West a distance'of 239.02 feet to an iron pipe in line of Tract No. i herein (formerly of James W. Bohn); thence along Tract No. 1 herein, North 44 degrees 15 minutes West a distance of 100 feet to mn iron pin in line of land now or formerly of John R. Hoy~ thence elong said line of land now or formerly of John ~. Hey, North 44 degrees 45 minutes East, a distance of 250 feet to a spike in the centerline of Township Road.T-499, the Place of BEGINNING. CONTAINING .561 acres. PR19fiSES BEING 0N:340 ~ERTZ RUN ROAD VERIFICATION Leanne Galvin ~ hereby states that she is VICE PRESIDENT of HOMESIDE LENDING, INC. mortgage servicing agent for Plaintiff in this matter, that she is authorized to take this Verification, and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are tree and correct to the best of 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 unswom falsification to authorities. DATE: SHERIFF'S RETURN - CAgE NO: 2002-00432 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HOMESIDE LENDING INC VS CUTCHALL DANIEL L ET AL REGULAR CPL. TIMOTHY REITZ , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon CUTCHALL DANIEL L AKA CUTSHALL the DEFENDANT , at 2121:00 HOURS, on the 4th day of February , 2002 at 340 WERTZ RUN ROAD CARLISLE, PA 17013 by handing to DANIEL CUTCHALL a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.45 Affidavit .00 Surcharge 10.00 .00 31.45 Sworn and Subscribed to before me this ~ day of /'] Pr~th~not ary~/ So Answers: R. Thomas Kline 02/05/2002 FEDERMAN & PHELAN By: SHERIFF'S RETURN - REGULAR CA~E NO: 2002-00432 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND HOMESIDE LENDING INC VS CUTCHALL DANIEL L ET AL CPL. TIMOTHY REITZ , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon BREHM REBECCA D the DEFENDANT , at 2121:00 HOURS, on the 4th day of February , 2002 at 340 WERTZ RUN ROAD CARLISLE, PA 17013 by handing to REBECCA BREHM a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6 00 00 00 10 00 00 16 00 Sworn and Subscribed to before me this ~ day of A.D. 0end4notary~ So Answers: R. Thomas Kline 02/05/2002 FEDERMAN & PHELAN DepUty Sheriff HOMESIDE LENDING, INC. S/B/M TO BANCPLUS MORTGAGE CORP., Plaintiff DANIEL L. CUTCHALL REBECCA D. (BREHM) CUTCHALL, Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION No.: 02-432 Civil Term MORTGAGE FORECLOSURE DEFENDANT'S ANSWER TO COMPLAINT IN MORTGAGE FORECLOSURE 1. Admitted. 2. Admitted in part and Denied in part. The Defendants are Daniel L. Cutchall, and Rebecca D (Brehm) Cutehall. 3. Admitted. 4. Admitted. 5. Denied. The Defendants made a payment of $1,078.00 on October 2, 2001. In addition, the Defendants have a right to cure the default by paying the total amount past due plus any late or other charges then due, and reasonable attorney's fees. 6. Denied. The amoum of interest is incorrect because it did not start accruing on July I, 2001. In addition, the attorney's fees are unreasonable and have not actually been incurred. 7. Denied. The attorney's fees are unreasonable and have not actually been incurred. 8. Admitted. 9. Admitted. Page 1 of 2 WHEREFORE, the Defendants request that the Plaintiff's Complaint in Mortgage Foreclosure be dismissed. Respectfully Submitted, THE LAW OFFICES OF PAUL BRADFORD ORR Cutler, Esquire Attorney for Defendants 50 East High Street Carlisle, PA 17013 (717) 258-8558 Supreme Court ID # 73471 Page 2 of 2 VERIFICATION I veri~ that the statements made in the foregoing Answer are tree and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unswom falsification to authorities. DATE: ~h~.f4 7. 2DOZ I Daniel L. Cutchall, Defendant unswom falsification to authorities. VERIFICATION I veri0y that the statements made in the foregoing Answer are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C,S. § 4904, relating to Rebecca D. (Brehm) Cutchall, Defendant HOMESIDE LENDING, INC. S/B/M TO BANCPLUS MORTGAGE CORP., Plaintiff DANIEL L. CUTCHALL REBECCA D. (BREHM) CUTCHALL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION No.: 02-432 Civil Term MORTGAGE FORECLOSURE CERTIFICATE OF SERVICE I hereby certify that on this date, I served a copy of the Defendant's Answer to Complaint in Mortgage Foreclosure to the following person at the following address via U.S. mail: FEDERMAN AND PHELAN, LLP 1 Penn Center Plaza, Suite 1400 Philadelphia, PA 19103 L. Cutler, Esquire PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. Homeside Lending, Inc. S/B/M to Bancplus Mortgage Corporation 8120 Nations Way Building 100 Jacksonville, FL 32256 (Plaintiff) VS. Daniel L. Cutchall, A/FdA Daniel L. Cutshall Rebecca D. Brehm 340 Wertz Run Road Carlisle, PA 17013 (Defendant) No.02-432 Civil Term State matter to be argued (i.e., plaintiff's motion for new trial, defendangs demurrer to complaint, etc.): Plaintiff's Motion for Summary Judgment 2. Identify counsel who will argue case: (a) forplaintiff: Address: Robert Lieberman, Esquire 500 North 3ra Street, 12m Floor P.O. Box 1004 Harrisburg, PA 17108-1004 o for defendant:. Gregory L. Cutler, Esquire Address: Paul Bradford Orr Law Offices 50 East High Street Carlisle, PA 17013 I will notify all parties in writing within two days that this case has been listed for argument. Date: Argument Court Date: FEDERMAN AND PHELAN, LLP By: JENINE R. DAVEY, ESQUIRE Identification No. 87077 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 (21s) .~,z-7oo0 Attorney for Plaintiff Homeside Lending, Inc. S/B/M to Baneplus Mortgage Corporation 8120 Nations Way Building 100 Jacksonville, FL 32256 : Court of Common Pleas : Civil Division Plaintiff VS. Daniel L. Cutchall, A/K/A Daniel L. Cutshall Rebecca D. Brehm 340 Wertz Run Road Carlisle, PA 17013 Defendants : Cumberland County : No. 02-432-Civil Term CERTIFICATION OF SF, RVICE I do hereby certify that a tree and correct copy of the foregoing Plaintiff's Motion for Summary Judgment, Brief in Support thereof and Pmecpe to List for Argument were served on Defendants' counsel via first class mail on the date listed below: Gregory L. Cutler, Esquire Paul Bmdford Orr Law Offices 50 East High Street Carlisle, PA 17013 Date Attorney for Plaintiff ajd/msj/cutchall FEDERMAN AND PHELAN, LLP By: JENINE R. DAVEY, ESQUIRE Identification No. 87077 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 (21~) S63-7000 Attorney for Plaintiff Homeside Lending, Inc. S/B/M to Bancplus Mortgage Corporation 8120 Nations Way Building 100 Jacksonville, FL 32256 : Court of Common Pleas : Civil Division Plaintiff VS. Daniel L. Cutchall, A/K/A Daniel L. Cutshall Rebecca D. Brehm 340 Wertz Run Road Carlisle, PA 17013 Defendants : Cumberland County : No. 02-432-Civil Term ORDER AND NOW, this day of ,2002 upon consideration of Plaintiffs Motion for Summary Judgment and Brief in Support thereof, and upon consideration of the Response, if any, filed by Defendants, the Court determines that Plaintiff is entitled to Summary Judgment as a matter of law, and it is hereby: ORDERED and DECREED that an in rem judgment is entered in favor of Plaintiff and against Defendants, Daniel L. Cutehall, A/K/A Daniel L. Cutshall and Rebecca D. Brehm, for $46,590.81 plus interest from December 1, 2001 at the rate of $9.74 per diem and other costs and charges collectible under the mortgage, for foreclosure and sale of the mortgaged property; BYT~CO~T: FEDERMAN AND PHELAN, LLP By: JENINE 1L DAVEY, ESQUIRE Identification No. 87077 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 Attorney for Plaintiff Homeside Lending, Inc. S/B/M to Bancplus Mortgage Corporation 8120 Nations Way Building 100 Jacksonville, FL 32256 : Court of Common Pleas : Civil Division Plaintiff VS. Daniel L. Cutchall, A/K/A Daniel L. Cutshall Rebecca D. Brehm 340 Wertz Run Road Carlisle, PA 17013 Defendants : Cumberland County : No. 02-432-Civil Term THIS FIRM IS A DEBT COLLECTOR ATFEMPTING TO COLleCT A DEBT. ANY INFORMATION OBTAINED ~VILL BE USED FOR THAT PURPOSE. IF YOU HAVE pREVIOUSLY RECEIVED A DISCHARGE IN BAN]O~UPTCY A~D THIS DEBT WAS NOT REAFFIRMED, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATYEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST THE PROPERTY. MOTION FOR ~IUV~VIARY .H~DG~NT Plaintiffrespectfully requests that the Court enter an Order granting summary judgment in its favor in the above-captioned matter and in support thereof avers as follows: 1. There are no material issues of fact. 2. Plaintiff is seeking only an in rem judgment in this mortgage foreclosure action. 3. Defendants, Daniel L. Cutchall, A/KdA Daniel L. Cutshall and Rebecca D. Brehm, have filed an Answer to the Complaint in which they have effectively admitted all of the allegations of the Complaint, as is further addressed in Plaintiffs attached Brief. 4. In their Answer, Defendants improperly deny paragraphs five and six of the Complaint, which aver the default and the amounts due on the Mortgage. True and correct copies of Plaintiffs Mortgage Foreclosure Complaint and Defendants' Answer are attached hereto, incorporated herein by reference, and marked as Exhibits C and D, respectively. 5. Defendants have failed to sustain their burden of presenting facts, which contradict the averments of Plaintiffs Complaint. 6. Since this action is in rem only, the amount of the in rem judgment has no effect on the Defendants. 7. Defendants admitted in paragraph three of their Answer that they executed the Mortgage to Plaintiff. A true and correct copy of the Mortgage is attaebed hereto, made part hereof, and marked Exhibits A 8. Defendants allege that they made a payment on October 2, 2001 in the amount of $1,078.00. This payment was applied to payments due for June 2001 and July 2001, making the loan due for August 1, 2001 as is averred in paragraph five of Plaintiffs Complaint. The balance was applied to late charges. A true and correct copy of the loan history is attached hereto, made part hereof, and marked as Exhibit F. 9. Since Defendants' Mortgage is now due for August 2001, interest was properly calculated from July 1, 2001. 10. The Mortgage is now due for the August 1, 2001 payment, a period in excess of seven months. An Affidavit confirming the default and the amount of the debt is attached hereto, incorporated herein by reference, and marked as Exhibit B. 11. Plaintiffhas complied with Act 6 of 1974, 41 P.S. §403(a), and Act 91 of 1983, 35 P.S. § 1680.401 c, by sending Defendants the combined notice provided for under Act 91. A tree and correct copy of the combined notice is attached hereto, made part hereof, and marked as Exhibit E. 12. Defendants have admitted that Plaintiff has complied with Act 6 of 1974 and Act 91 of 1983. 13. The Temporary Stay as provided by the Homeowner's Emergency Mortgage Assistance Program, Act 91 of 1983, has terminated because Defendants have failed to meet with an authorized credit- counseling agency in accordance with Plaintiffs written notice to Defendants. A tree and correct copy of the Notice of Homeowners Emergency Mortgage Assistance Program is attached hereto, made part hereof, and marked Exhibit E. Defendants have the right to reinstate the loan up until one hour before a scheduled 14. Sheriffs Sale. 15. Pumuant to paragraph eighteen of the Mortgage, Defendants may reinstate the loan, however Defendants must pay Plaintiff all sums which would be due under the Mortgage and Note as if no acceleration had occurred and pay all expenses incurred in enforcing the Mortgage, including, but not limited to, reasonable attorneys fees. WHEREFORE, Plaintiff respectfully requests that an in rem judgment be entered in its favor for the amount due plus interest and costs as prayed for in the Complaint, for foreclosure and sale of the mortgaged property. Respectfully submitted, J;](ine R.~Davey, Esquire / ~ttorney for Plaintiff FEDERMAN AND PHELAN BY: Michele M. Bradford, Esq. Atty. I.D. #69849 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103 - 1814 (215) ATTORNEY FOR PLAINTIFF COUNTRYWIDE HOME LOANS, INC. F/FdA AMERICA'S WHOLESALE LENDER COURT OF COMMON PLEAS VS. ANGELIQUE L. WILT GLENN P. WILT, JR. CWIL DIVISION CUMBERLAND COUNTY NO. 02-466 AND NOW, this ~ day of~, 2002, upon consideration of (~rder of ~ Plaintiffs Motion for Service Pursuant to Special 2ourt and the Affidavit of Reasonable Investigation attached thereto, it is hereby ORDERED that Plaintiff may obtain service of the Complaint on the above captioned Defendant(s) GLENN P. WILT, JR., by mailing a true and correct copy of the Complaint by certified mail and regular mail to the Defendant's last known address, and to the mortgaged premises located at 205 EAST CLEARVIEW DRIVE, CAMP HILL, PA 17011. Service of the aforementioned mailings is effective upon the date of mailing and is to be done by Plaintiffs attorney, who will file with the Prothonotary's Office an Affidavit as to the H:~Vlain Forms/motions/county.comp FEDERMAN AND PHELAN BY: Michele M. Bradford, Esq. Atty. I.D. #69849 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 (.215) COUNTRYWIDE HOME LOANS, INC. F/KJA AMERICA'S WHOLESALE LENDER VS. ANGELIQUE L. WILT GLENN P. WILT, JR. ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION CUMBERLAND COUNTY NO. 02-466 THIS FIRM IS A DEBT COLLECTOR ATIEMi~ING TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. MOTION FOR SERVICE PURSUANT TO ~PECJAI, OR]~R f~F ~OITRT Pl~ntiff, by its co,scl, Michele M. Br~ford, Esquke, moves ~s Honorable Corn for ~ ~der dkecfing semice of ~e Compl~nt upon ~e above-captioned Def~t(s) by C~ified m~l ~d re~l~ m~l to the Defendmt's l~t ~o~ M&ess ~d mo~gaged premises located at 205 EAST CLE~V~W D~E, C~ H~L, PA 17011 ~d ~ suppo~ ~eof av~ the folloMng: 1. A~mpts to s~e Defend~t(s) M~ ~e Compl~nt have be~ ~success~l, as indicated by ~e Sheriff's Rem of Se~ice a~ached hereto ~ Exhbit "A". 2. P~su~t to P~sylvma Rule of Cihl Proced~e 430, Pl~ntiff h~ mMe a good f~ effo~ to locate ~e Defend~t(s). ~ Affidavit of Re~onable ~vestigation seRing fo~h the sp~ific ~quifies made ~d ~e results is attached hereto ~ Exhbit "B". MXM, Sve Dept. H:/Main Forms/motions/county.comp 3. Internal records reviewed by Plaintiff and has not been contacted by defendant as of ,Mlr. il_4,.21ll~ to bring loan current. 4. Plaintiff submits that it has made a good faith effort to locate the defendants, but has been unable to do so. WltEREFORE, Plaintiff respectfully requests this Honorable Court enter an Order pursuant to Pennsylvania Rule of Civil Procedure 430 directing service of the Complaint by certified mail and regular mail. Michele M. Bradford, Esquire MXM, Svc Dept. H:/Main Fom~s/motions/c o uniy.comp SHERIFF'S RETURN - NOT FOUND 'CASE NO: 2002r00466 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND COUNTRYWIDE HOME LOANS INC VS WILT ANGELIQUE L ET AL R. Thomas Kline duly sworn according to law, inquiry for the within named defendant, DEFENDANT WILT GLENN P JR unable to locate Him in his bailiwick. He therefore returns ,Sheriff or Deputy Sheriff, who being says, that he made a diligent search and but was the COMPLAINT - MORT FORE the within named DEFENDANT , WILT GLENN P JR 205 E CLEARVIEW DRIVE APPEARS TO , NOT FOLrND , as to BE VACANT. Sheriff's Costs: Docketing 6.00 Service 10.35 Not Found 5.00 Surcharge 10.00 .00 31.35 So answers:j ~f R. Thomas Kline Sheriff of Cumberland County FEDERMAN & PHELAN 03/04/2002 Sworn and subscribed to before me this day of A.D. Prothonotary DEFAULT EXPRESS SERVICES, INC. AFFIDAVIT OF GOOD FAITH INVESTIGATION File Number: 02-3468 Attorney Firm: Federman & Phelan Subject: Angelique L. Wilt Current Address: 205 E. Clearview Dr. Camp Hill, PA 17011 Property Address: 205 E. Clearview Dr. Camp Hill, PA 17011 Mailing Address: 205 E. Clearview Dr. Camp Hill, PA 17011 I Steven M. Ruffo, being duly sworn according to law, do hereby depose and state as follows, I have conducted an investigation into the whereabouts of the above-noted individual(s) and have discovered the following: I. CREDIT INFORMATION A. SOCIAL SECURITY NUMBER Angelique L. Wilt - 161-62-9421 B. EMPLOYMENT SEARCH Angelique L. Wilt - unknown C. INQUIRY OF CREDITORS The creditors indicate that Angelique L. Wilt reside(s) at: 205 E. Clearview Dr. Camp Hill, PA 17011 II. INQUIRY OF TELEPHONE COMPANY A. DIRECTORY ASSISTANCE SEARCH Indicated that Angelique L. Wilt reside(s) at: 205 E. Clearview Dr. Camp Hill, PA 17011 - non published III. INQUIRY OF NEIGHBORS Don Gerhart 204 E. Clearview Dr. and he verified that Angelique L. Wilt reside(s) at: 205 E. Clearview Dr. Camp Hill, PA 17011 IV. INQUIRY OF POST OFFICE A. NATIONAL ADDRESS UPDATE Angelique L. Wilt - 205 E. Clearview Dr. Camp Hill, PA 17011 V. MOTOR VEHICLE REGISTRATION A. MOTOR VEHICLE & DMV OFFICE Per the Pennsylvania Department of Motor Vehicle Angelique L. Wilt reside(s) at: 205 E. Clearview Dr. Camp Hill, PA 17011 VI. OTHER INQUIRIES A. DEATH RECORDS As of Feb. 1, 2002 Vital Records has no death record on file for Angelique L. Wilt. B. PUBLIC LICENSES (PILOT, REAL ESTATE, ETC.) noue EXttlBIT C. COUNTY VOTER REGISTRATION The Cumberland CnW Voter reg has a registration for Angelique L. Wilt residing at: 205 E. Clearview Dr. Camp Hill, PA 17011 VII. ADDITIONAL INFORMATION OF SUBJECT A. DATE OF BIRTH Angelique L. Wilt- 3/13/73 B. A.K.A. none The undersigned understands that this statement herein is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. I hereby verify that the statements made herein are true and correct to the best of my knowledge, information and belief and that this affidavit of investigation is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. Steven M. Ruffo AFFIANT Steven M. Ruffo Default Express Services, INC. President Sworn to and subscribed before me this 6 day of Mar__2002 NOTARIAL SEAL Luz M. Arango, Notary Public Philadelphia, Philadelphia County My Commission Expires Oct. 30, 2004 DEFA UL T EXPRESS SER VICES, INC 43 WILSON DRIVE SICKLERVILLE, NJ 08081 PHONE: (856) 740-5027 DEFA UL TEXPRESS~COMCAST. NET EXHIBIT FEDERMAN AND PHELAN BY: Michele M. Bradford, Esq. Atty. I.D. #69849 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 COUNTRYWIDE HOME LOANS, INC. F/K/A AMERICA'S WHOLESALE LENDER VS. ANGELIQUE L. WILT GLENN P. WILT, JR. ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION CUMBERLAND COUNTY NO. 02-466 ~4F. MORANI~ITM OF 1 ~AW Pennsylvania Rule of Civil Procedure 430(a) specifically provides: (a) If service cannot be made under the applicable rule, the plaintiff may move the Court for a special order directing the method of service. The Motion shall be accompanied by an Affidav/t stating the nature and extent of the investigation which has been made to determine the whereabouls oftbe Defendant(s) and the reasons why service cannot be made. Note: A Sheriffs return of"Not Found" or the fact that a Defendant has moved without leaving a new forwarding address is insufficient evidence of concealment. ~nnTMe~ ye Pnlia~ 238 Pa. Super. 362, 357 A.2d 580 (1976). "Notice of intended adoption mailed to last known address requires a good faith effort to discover the correct address." a. dop~nn ,,~' Walk~r~ 468 Pa. 165, 360 A.2d 603 (1976). An illustration of good faith effort to locate the defendant includes (1) inquires of postal authorities including inquiries pursuant to the Freedom of Information Act, 39 C.F.R. Part 265, (2) inquiries of relatives neighbors, friends and employers of the Defendant and (3) examinations of local telephone directories, voter registration records, local tax records, and motor vehicle records. As indicated by the attached Sheriffs Retum of Service, attached hereto and marked as Exhibit "A", the Sheriff has been unable to serve the Complaint. A good faith effort to discover the whereabouts of the Defendant(s) has been made as evidenced by the attached Affidavit of Reasonable Investigation, marked Exhibit "B". WHEREFORE, Plaintiff respectfully requests service of the Complaint by certified mail and regular mail. Respectfully submitted: Mich~d, Esquire H:/Main Forms/motions/county.comp VERIFICATION Michele M. Bradford, Esquire, hereby states that she is the Attomey for the Plaintiff in this action, that she is authorized to take this Affidavit, and that the statements made in the foregoing MOTION FOR SERVICE PURSUANT TO SPECIAL ORDER OF COURT are tree and correct to the best of her knowledge, information and belief. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unswom falsification to authorities. Date: April 4. 2002 Michele M. Bradford, Esquire H:/Main Forms/motions/county.comp ajd/msj/cutchall FEDERMAN AND PHELAN, LLP By: JENINE R. DAVEY, ESQUIRE Identification No. 87077 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 s) 56 -700o Attorney for Plaintiff Homeside Lending, Inc. S/B/M to Bancplus Mortgage Corporation 8120 Nations Way Building 100 Jacksonville, FL 32256 : Court of Common Pleas : Civil Division Plaintiff VS. Daniel L. Cutchall, A/K/A Daniel L. Cutshall Rebecca D. Brehm 340 Wertz Run Road Carlisle, PA 17013 Defendants : Cumberland County : No. 02-432-Civil Tern ORDER AND NOW, this ~k day of ~ ,2002 upon consideration of Plaintiffs Motion for Summary Judgment and Brief in Support thereof, and upon consideration of the Response, if any, filed by Defendants, the Court determines that Plaintiff is entitled to Summary Judgment as a matter of law, and it is hereby: ORDERED and DECREED that an in rem judgment is entered in favor of Plaintiff and against Defendants, Daniel L. Cutchall, A/K/A Daniel L. Cutshall and Rebecca D. Brehm, for $46,590.81 plus interest from December 1, 2001 at the rate of $9.74 per diem and other costs and charges collectible under the mortgage, for foreclosure and sale of the mortgaged property; FEDERMAN AND PHELAN, LLP BY: FRANK FEDERMAN Identification No. 12248 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 (~215) 563-7000 I4omeside Lending, Inc., S/B/M to Bancplus Mortgage Corporation Plaintiff Daniel L. Cutchall A/K/A Daniel L. Cutshall Rebecca D. Brehm Defendants ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division Cumberland County No. 02-432-Civil Term PRAECIPE TO THE PROTHONOTARY: Please mark the above referenced case Discontinued and Ended without prejudice. Please mark the above referenced case Settled, Discontinued and Ended. Please mark Judgments satisfied and the Action settled, discontinued and ended. X Please Vacate the judgment entered and mark the action discontinued and ended without prejudice. Please withdraw the complaint and mark the action discontinued and --ended without prejudice. Date: (o/t~/o'z-- ~'-~~~ -- Frank Federman Attorney for Plaintiff FEDERMAN AND PHELAN, L.L.P. BY: t~RANK FEDERMAN, ESQUIRE Identification No. 12248 suite 1400, One Penn Center at Suburban Station 1617 John F. Kennedy Blvd. Philadelphia, PA 19103-1814 (215) 563-7000 ATTORNEY FOR PLAINTIFF WASHINGTON MUTUAL BANK, FA : : Plaintiff : Vs. : : DANIEL L. CUTSHALL, : A/K/A DANIEL L. CUTCHALL : REBECCA D. BREHM, : A/K/A REBECCA D. CUTCHALL, : A/K/A REBECCA D. CUTSHALL : Defendant(s) COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 02-432 SIIGGE,~TION OF RECORD CHANGE RE: PARAGRAPH #.~ OF THE COMPI,AINT IN MORTGAGE FORECI,OSIIRE TO THE PROTI-IC)NOTARy: FRANK FEDERMAN, ESQUIRE, attorney for the Plaintiff, hereby certifies that, to the best of his knowledge, information and belief that the information in paragraph #3 of the Complaint in Mortgage Foreclosure is: On 08/19/94 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to PLAINTIFF which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No. 1229, Page 345. Kindly change the information on the docket. Date: April 10, 2003 Frank Federman, Esquire Attomey for Plaintiff FEDERMAN AND PHELAN, L. L. P. BY: FRANK FEDERMAN, ESQUIRE Identification No. 12248 ONE PENN CENTER AT SUBURBAN STATION 1617 JOHN F. KENNEDY BLVD. STE 1400 PHILADELPHIA, PA 19103-1814 (215) 563-7000 ATTORNEY FOR PLAINTIFF WASHINGTON MUTUAL BANK, FA Plaintiff VS. DANIEL L. CUTSHALL, A/K/A DANIEL L. CUTCHALL REBECCA D. BREHM, A/K/A REBECCA D. CUTCHALL, A/K/A REBECCA D. CUTSHALL : No. : : : : : : : : COURT OF COMMON PLEAS CUMBERLAND COUNTY 02-432 Defendant (s) TO THE PROTHONOTARY: SUGGESTION OF RECORD RE: PLAINTIFF,S NA~R FRANK FEDERMAN, ESQUIRE, attorney for the Plaintiff, hereby certifies that, to the best of his knowledge, information and belief the plaintiff' was erroneously listed in the complaint as: WASHINGTON MUTUAL BANK, FA The correct name for the Plaintiff is: WASHINGTON MUTUAL BANK, FA, SUCCESSOR IN INTEREST TO HOMESIDE LENDING, INC., S/B/M TO BANCPLUS MORTGAGE CORP. Kindly change the information on the docket. Date: April 10, 2003 Feder'man, Esquire Attorney for Plaintiff